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

[Pages S406-S420]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                                 RECESS

  Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent that the 
Senate stand in recess until 8 p.m.
  There being no objection, at 7:31 p.m., the Senate, sitting as a 
Court of Impeachment, recessed until 8:13 p.m. and reassembled when 
called to order by the Presiding Officer, the Chief Justice.
  The CHIEF JUSTICE. Mr. Schiff, are you in favor of the motion or 
opposed?
  Mr. Manager SCHIFF. In favor, Your Honor.
  The CHIEF JUSTICE. Mr. Cipollone?
  Mr. Counsel CIPOLLONE. We are opposed.
  The CHIEF JUSTICE. Mr. Schiff, the managers will go first and are 
able to reserve time for rebuttal.
  Mr. Manager JEFFRIES. Mr. Chief Justice, distinguished Members of the 
Senate, counsel for the President, my name is Hakeem Jeffries, and I 
have the honor of representing the 8th Congressional District of New 
York, in Brooklyn and Queens. It is one of the most diverse districts 
in the Nation. In fact, I have been told that I have the 9th most 
African-American district in the country and the 16th most Jewish.
  Here on the Hill, some folks have said: Hakeem, is that complicated?
  But as my friend Leon Goldenberg says back at home: Hakeem, you have 
the best of both worlds.
  You see, in America, our diversity is a strength; it is not a 
weakness. And one of the things that binds us together--all of us--as 
Americans, regardless of race, regardless of religion, regardless of 
region, regardless of sexual orientation, and regardless of gender is 
that we believe in the rule of law and the importance of a fair trial.
  The House managers strongly support this amendment to subpoena 
witness testimony, including with respect to Mick Mulvaney.
  Who has ever heard of a trial with no witnesses? But that is exactly 
what some are contemplating here today. This amendment would address 
that fundamental flaw. It would ensure that the trial includes 
testimony from a key witness: the President's Acting Chief of Staff and 
head of the Office of Management and Budget, Mick Mulvaney, and it 
would ensure that the Senate can consider his testimony immediately.
  Let's discuss why the need to hear from Mick Mulvaney is so critical.
  First, Leader McConnell's resolution undercuts more than 200 years of 
Senate impeachment trial practice. It departs from every impeachment 
trial conducted to date. It goes against the Senate's own longstanding 
impeachment rules, which contemplate the possibility of new witness 
testimony. In fact, it departs from any criminal or civil trial 
procedure in America. Why should this President be held to a different 
standard?
  Second, the proposed amendment for witness testimony is necessary in 
light of the President's determined effort to bury the evidence and 
cover up his corrupt abuse of power.

[[Page S407]]

  The House tried to get Mr. Mulvaney's testimony. We subpoenaed him. 
Mr. Mulvaney, together with other key witnesses--National Security 
Advisor John Bolton, senior White House aide Robert Blair, Office of 
Management and Budget official Michael Duffey, and National Security 
Council lawyer John Eisenberg--were called to testify before the House 
as part of this impeachment inquiry, but President Trump was determined 
to hide from the American people what they had to say. The President 
directed the entire executive branch and all of his top aides and 
advisers to defy all requests for their testimony. That cannot be 
allowed to stand.
  Third, Mr. Mulvaney is a highly relevant witness to the events at 
issue in this trial. Mr. Mulvaney was at the center of every stage of 
the President's substantial pressure campaign against Ukraine. Based on 
the extensive evidence the House did obtain, it is clear that Mulvaney 
was crucial in planning the scheme, executing its implementation, and 
carrying out the coverup.
  Emails and witness testimony show that Mr. Mulvaney was in the loop 
on the President's decision to explicitly condition a White House 
meeting on Ukraine's announcement of investigations beneficial to the 
President's reelection prospects.
  He was closely involved in implementing the President's hold on the 
security assistance and subsequently admitted that the funds were being 
withheld to put pressure on Ukraine to conduct one of the phony 
political investigations that the President wanted--phony political 
investigations.
  A trial would not be complete without the testimony of Mick Mulvaney. 
Make no mistake. The evidentiary record that we have built is powerful 
and can clearly establish the President's guilt on both of the Articles 
of Impeachment, but it is hardly complete. The record comes to you 
without the testimony of Mr. Mulvaney and other important witnesses.
  That brings me to one final preliminary observation. The American 
people agree that there cannot be a fair trial without hearing from 
witnesses who have relevant information to provide.
  The Constitution, our democracy, the Senate, the President and, most 
importantly, the American people deserve a fair trial. A fair trial 
requires witnesses in order to provide the truth, the whole truth, and 
nothing but the truth. That is why this amendment should be adopted.
  Before we discuss Mr. Mulvaney's knowledge of the President's 
geopolitical shakedown, it is important to note that an impeachment 
trial without witnesses would be a stunning departure from this 
institution's past practice.
  This distinguished body has conducted 15 impeachment trials. All have 
included witnesses. Sometimes those trials included just a handful of 
witnesses, as indicated on the screen. At other times, they included 
dozens. In one case, there were over 100 different witnesses.
  As the slide shows, the average number of witnesses to appear at a 
Senate impeachment trial is 33, and in at least 3 of those instances, 
including the impeachment of Bill Clinton, witnesses appeared before 
the Senate who had not previously appeared before the House. That is 
because the Senate, this great institution, has always taken its 
responsibility to administer a fair trial seriously. The Senate has 
always taken its duty to obtain evidence, including witness testimony, 
seriously. The Senate has always taken its obligation to evaluate the 
President's conduct based on a full body of available information 
seriously. This is the only way to ensure fundamental fairness for 
everyone involved.
  Respectfully, it is important to honor that unbroken precedent today 
so that Mr. Mulvaney's testimony, without fear or favor as to what he 
might say, can inform this distinguished body of Americans.
  This amendment is also important to counter the President's 
determination to bury the evidence of high crimes and misdemeanors.
  As we have explained in detail today, despite considerable efforts by 
the House to obtain relevant documents and testimony, President Trump 
has directed the entire executive branch to execute a coverup. He has 
ordered the entire administration to ignore the powers of Congress's 
separate and coequal branch of government to investigate his offenses 
in a manner that is unprecedented in American history.

  There were 71 requests by the House for relevant evidence. In 
response, the White House produced zero documents in this impeachment 
inquiry--71 requests, 0 documents.
  President Trump is personally responsible for depriving the Senate of 
information important to consider in this trial. This point cannot be 
overstated. When faced with a congressional impeachment inquiry, a 
process expressly set forth by the Framers of the Constitution in 
article I, the President refused to comply in any respect, and he 
ordered his senior aides to fall in line.
  As shown on the slide, as a result of President Trump's obstruction, 
12 key witnesses, including Mr. Mulvaney, refused to appear for 
testimony in the House's impeachment inquiry. No one has heard what 
they have to say. These witnesses include central figures in the abuse 
of power charged in article I. What is the President hiding?
  Equally troublesome, President Trump and his administration did not 
make any legitimate attempts to reach a reasonable accommodation with 
the House or compromise regarding any document requests or witness 
subpoenas. Why? Because President Donald John Trump wasn't interested 
in cooperating. He was plotting a coverup.
  It is important to take a step back and think about what President 
Trump is doing. Complete and total Presidential obstruction is 
unprecedented in American history. Even President Nixon, whose Articles 
of Impeachment included obstruction of Congress, did not block key 
White House aides from testifying in front of Congress during the 
Senate Watergate hearings. In fact, he publicly urged White House aides 
to testify.
  Remember all of those witnesses who came in front of this body? Take 
a look at the screen. John Dean, the former White House Counsel, 
testified for multiple days pursuant to a subpoena. H.R. Haldeman, 
President Nixon's former Chief of Staff, was subpoenaed and testified. 
Alexander Butterfield, the White House official who revealed the 
existence of the tapes, testified publicly before the Senate, and so 
did several others. President Trump's complete and total obstruction 
makes Richard Nixon look like a choirboy.
  Two other Presidents have been tried before the Senate. How did they 
conduct themselves?
  William Jefferson Clinton and Andrew Johnson did not block any 
witnesses from participating in the Senate trial. President Trump, by 
contrast, refuses to permit relevant witnesses from testifying to this 
very day.
  Many of President Clinton's White House aides testified in front of 
Congress, even before the commencement of formal impeachment 
profession. During various investigations in the mid-1990s, the House 
and the Senate heard from more than two dozen White House aides, 
including the White House Counsel, the former Chief of Staff, and 
multiple senior advisers to President Clinton.
  President Clinton himself gave testimony on camera and under oath. He 
also allowed his most senior advisers, including multiple Chiefs of 
Staff and White House Counsels, to testify in the investigation that 
led to his impeachment.
  As you can see in the chart, their testimony was packaged and 
delivered to the Senate. There were no missing witnesses who had defied 
subpoenas. No aides who had personal knowledge of his misconduct were 
directed to stay silent by President Clinton.
  We have an entirely different situation in this case. Here we are 
seeking witnesses the President has blocked from testifying before the 
House. Apparently, President Trump thinks he can do what no other 
President before him has attempted to do in such a brazen fashion: 
float above the law and hide the truth from the American people. That 
cannot be allowed to stand.
  Let me now address some bedrock principles about the Congress's 
authority to conduct investigations. Our broad powers of inquiry are at 
their strongest during an impeachment proceeding, when the House and 
Senate exercise responsibilities expressly set forth in article I of 
the Constitution.
  Nearly 140 years ago, the Supreme Court recognized that, when the 
House

[[Page S408]]

or Senate is determining a question of impeachment, there is no reason 
to doubt the right to compel the attendance of witnesses, and their 
answer to proper questions, in the same manner and by the use of the 
same means that courts of justice can in like cases. Our Nation's 
Founders and greatest legal minds recognized these principles early on. 
Supreme Court Justice Joseph Story explained that the President should 
not have the power of preventing a thorough investigation of his 
conduct or of securing himself against the disgrace of a public 
conviction by impeachment, if he should deserve it.
  President Trump cannot function as judge, jury, and executioner of 
our democracy. It wasn't just the courts that confirmed this for us. It 
was some of our Nation's leading public servants. Representative John 
Quincy Adams, speaking on the floor of the House, after he had served 
as President, once explained: ``What mockery would it be for the 
Constitution of the United States to say that the House should have the 
power of impeachment, extending even to the President of the United 
States himself, and yet to say that the House had not the power to 
obtain the evidence and proofs on which their impeachment was based.''
  As Hamilton, Story, Adams, and others have recognized, the President 
cannot insulate himself from Congress's investigations of his 
wrongdoing. If the President could decide what evidence gets to be 
presented in his own trial, that would fundamentally nullify the 
constitutional power of impeachment.
  This amendment is important because President Trump simply cannot be 
allowed to hide the truth. No other President has done it; the Supreme 
Court does not allow it; and the President is not above the law.
  Witnesses matter. Documents matter. Evidence matters. The truth 
matters.
  Let me now turn to the third justification for this amendment. Mr. 
Mulvaney's testimony is critical to considering the case for removal. 
It is imperative that we hear from the President's closest aide, a man 
intimately involved at key stages of this extraordinary abuse of power. 
President Trump knows this. Why else would he be trying so hard to 
prevent Mick Mulvaney from testifying before you?
  There are at least four reasons why Mr. Mulvaney's testimony is 
critical. To begin with, as Acting White House Chief of Staff and head 
of the Office of Management and Budget, Mick Mulvaney has firsthand 
knowledge about President Trump's efforts to shake down Ukraine and 
pressure its new President into announcing phony investigations.
  Mr. Mulvaney was in the loop at each critical stage of President 
Trump's scheme. He was in the loop in the planning of the scheme; he 
was in the loop in its implementation; and he was in the loop when the 
scheme fell apart. He even admitted publicly that the aid was withheld 
in order to pressure Ukraine into announcing an investigation designed 
to elevate the President's political standing.
  Mr. Mulvaney, perhaps more than any other administration witness, 
excepting the President, has firsthand insight into the decision to 
withhold $391 million in military and security aid to a vulnerable 
Ukraine without justification. Indeed, our investigation revealed that 
President Trump personally ordered Mr. Mulvaney to execute the freeze 
in July of 2019. Mr. Mulvaney holds the senior-most staff position at 
the White House. He is a member of President Trump's Cabinet, and he is 
responsible for President Trump's team at 1600 Pennsylvania Avenue. He 
remains the Director of the Office of Management and Budget, which 
implemented the hold on the security assistance, in violation of the 
law, as the Government Accountability Office recently concluded.
  In short, respectfully, the Senate's responsibility to conduct a 
complete and fair trial demands that Mr. Mulvaney testify.
  Second, Mr. Mulvaney's testimony is critical because of his knowledge 
of the planning of President Trump's abuse of power. Ambassador Gordon 
Sondland, the U.S. Ambassador to the European Union, testified that 
there was a quid pro quo. Ambassador Sondland is not a so-called Never 
Trumper. Mr. Sondland gave $1 million to President Trump's 
inauguration.
  He testified that everybody was in the loop and that it was no secret 
what was going on. In fact, as early as May of 2019, Ambassador 
Sondland made clear that he was coordinating on Ukraine matters with 
Mr. Mulvaney.
  Here is what David Holmes, an official at the U.S. Embassy in 
Ukraine, had to say on that matter:
  (Text of Videotape presentation:)

       Mr. HOLMES. While Ambassador Sondland's mandate as the 
     accredited Ambassador to the European Union did not cover 
     individual member states, let alone nonmember countries like 
     Ukraine, he made clear that he had direct and frequent access 
     to President Trump and Chief of Staff Mick Mulvaney and 
     portrayed himself as the conduit to the President and Mr. 
     Mulvaney for this group.

  Mr. Manager JEFFRIES. After the U.S. delegation returned from the 
inauguration of the new Ukrainian President in April, they were able to 
secure an Oval Office meeting with President Trump to brief him on 
their trip, in part because of Ambassador Sondland's connections to 
Mick Mulvaney.
  Then, during a June 18, 2019, meeting, Ambassador Sondland informed 
National Security Council Senior Director Dr. Fiona Hill that he was in 
charge of Ukraine and that he had been briefing senior White House 
officials, including Mr. Mulvaney, about his efforts to undertake, as 
Dr. Hill put it, a domestic political errand in Ukraine.
  Here is Dr. Hill explaining this herself.
  (Text of Videotape presentation:)

       Dr. HILL. So I was upset with him that he wasn't fully 
     telling us about all of the meetings that he was having. And 
     he said to me, But I'm briefing the President, I'm briefing 
     Chief of Staff Mulvaney, I'm briefing Secretary Pompeo, and I 
     talked to Ambassador Bolton. Who else do I have to deal with? 
     And the point is, we have a robust interagency process that 
     deals with Ukraine. It includes Mr. Holmes. It includes 
     Ambassador Taylor as the charge in Ukraine. It includes a 
     whole load of other people. But it struck me when yesterday, 
     when you put up on the screen Ambassador Sondland's emails 
     and who was on these emails, and he said, These are the 
     people who need to know, that he was absolutely right. 
     Because he was being involved in a domestic political errand, 
     and we were being involved in national security foreign 
     policy, and those two things had just diverged.

  Mr. Manager JEFFRIES. And there is more--much more. A month later, 
President Trump's National Security Advisor at the time, John Bolton, 
told Dr. Fiona Hill to tell the National Security Council's lawyers 
that he was not part of whatever drug deal Sondland and Mulvaney were 
cooking up. He made that statement after Ambassador Sondland 
specifically said that he had a deal with Mr. Mulvaney to schedule a 
White House visit for President Zelensky if Ukraine announced the two 
phony investigations involving the Bidens and 2016 election 
interference--investigations that were sought by President Donald John 
Trump.
  Here is Dr. Hill's testimony about Sondland describing this drug deal 
he had with Mulvaney.
  (Text of Videotape presentation:)

       Dr. HILL. And so when I came in, Gordon Sondland was 
     basically saying, well, look, we have a deal here that there 
     will be a meeting. I have a deal here with Chief of Staff 
     Mulvaney that there will be a meeting if the Ukrainians open 
     up or announce these investigations into 2016 and Burisma. 
     And I cut it off immediately there. Because by this point, 
     having heard Mr. Giuliani over and over again on the 
     television and all of the issues that he was asserting, by 
     this point it was clear that Burisma was code for the Bidens, 
     because Giuliani was laying it out there. I could see why 
     Colonel Vindman was alarmed, and he said, this is 
     inappropriate, we're the National Security Council, we can't 
     be involved in this.

  Mr. Manager JEFFRIES. The referenced agreement between Ambassador 
Sondland and Mick Mulvaney was so upsetting that Dr. Hill reported it 
to National Security Council legal advisers. Here is the testimony of 
Dr. Hill explaining these particular concerns.
  (Text of Videotape presentation:)

       Dr. HILL. Yes, but he was--he was making a very strong 
     point that he wanted to know exactly what was being said. And 
     when I came back and related it to him, he had some very 
     specific instructions for me. And I'm presuming that that's 
     the question that you're asking.
       Mr. GOLDMAN. What was that specific instruction?
       Dr. HILL. The specific instruction was that I had to go to 
     the lawyers, to John Eisenberg, our senior counsel for the 
     National Security Council, to basically say,

[[Page S409]]

     you tell Eisenberg, Ambassador Bolton told me that I am not 
     part of this whatever drug deal that Mulvaney and Sondland 
     are cooking up.
       Mr. GOLDMAN. What did you understand him to mean by the 
     drug deal that Mulvaney and Sondland were cooking up?
       Dr. HILL. I took it to mean investigations for a meeting.
       Mr. GOLDMAN. Did you go speak to the lawyers?
       Dr. HILL. I certainly did.

  Mr. Manager JEFFRIES. Sondland's testimony not only corroborates Dr. 
Hill's account. He actually says that Mick Mulvaney, the subject of 
this amendment, who should appear before the Senate if we are going to 
have a free and fair trial--Sondland says Mick Mulvaney knew all about 
it.
  (Text of Videotape presentation:)

       The CHAIRMAN. What I want to ask you about is, he makes 
     reference in that drug deal to a drug deal cooked up by you 
     and Mulvaney. It's the reference to Mulvaney that I want to 
     ask you about. You've testified that Mulvaney was aware of 
     this quid pro quo, of this condition that the Ukrainians had 
     to meet, that is, announcing these public investigations to 
     get the White House meeting. Is that right?
       Mr. SONDLAND. Yeah. A lot of people were aware of it. And--
       The CHAIRMAN. Including Mr. Mulvaney?
       Mr. SONDLAND. Correct.

  Mr. Manager JEFFRIES. The documents also highlight the extensive 
involvement of Mick Mulvaney in this geopolitical shakedown scheme. 
Email messages summarized by Ambassador Sondland during his sworn 
testimony show that he informed Mr. Mulvaney, as well as Secretary 
Pompeo and Secretary Perry, of his efforts to persuade President 
Zelensky to announce the investigations desired by President Trump.
  For example, as shown on the screen, on July 19, Ambassador Sondland 
emailed several top administration officials, including Mr. Mulvaney, 
stating that he had talked to President Zelensky to help prepare him 
for a phone call with President Trump, and he reported that President 
Zelensky planned to assure President Trump that he intends to run a 
fully transparent investigation and will turn over every stone.
  Ambassador Sondland made clear in his testimony that he was referring 
to the Burisma/Biden and 2016 election interference investigations that 
were explicitly mentioned by President Trump on the July 25 phone call.
  Mr. Mulvaney wrote in a response: I asked NSC to set it up.
  What exactly did Mr. Mulvaney know about the Ukrainian commitment to 
turn over every stone? And when did he know it?
  These are many of the questions that require answers, under oath, 
from Mr. Mulvaney. Mr. Mulvaney is also a central figure with respect 
to how President Trump implemented his pressure campaign.
  According to public reports and witness testimony, Mr. Mulvaney was 
deeply involved with implementing the scheme, including the unlawful 
White House freeze on $391 million in aid to Ukraine.
  This isn't just other people fingering Mr. Mulvaney. Mr. Mulvaney has 
himself admitted that he was involved.
  (Text of Videotape presentation:)

       Mr. MULVANEY. Again, I was involved with the process by 
     which the money was held up temporarily, okay?

  Mr. Manager JEFFRIES. The public reports confirm Mr. Mulvaney's own 
account that he has information that goes to the heart of this inquiry, 
specifically related to why the President ordered the hold on aid to 
Ukraine and kept it in place, despite deep-seated concerns among Trump 
administration officials.
  This New York Times article on the screen summarizes an email 
conversation between Mr. Mulvaney and Robert Blair, a senior 
administration adviser, on June 27, when Mr. Mulvaney asked: ``Did we 
ever find out about the money for Ukraine and whether we can hold it 
back?''
  What prompted that email? According to public reports, Mr. Mulvaney 
was on Air Force One--Air Force One--with President Trump when he sent 
it. What other conversations did Mr. Mulvaney have with the President 
and White House officials about this unlawful freeze? The American 
people deserve to know.
  There is other significant evidence concerning Mr. Mulvaney's role in 
implementing the scheme. According to multiple witnesses, the direction 
to freeze the security assistance to Ukraine was delivered by Mick 
Mulvaney himself.
  Office of Management and Budget official Mark Sandy testified about a 
July 12 email from Mr. Will Blair stating that President Trump ``is 
directing a hold on military support funding for Ukraine.''
  Was Mr. Blair acting at Mr. Mulvaney's express direction? The Members 
of this distinguished body deserve to know.
  On July 18, the hold was announced to the agencies in the 
administration overseeing Ukraine policy matters. Those present were 
blindsided by the announcement that the security aid appropriated by 
this Congress on a bipartisan basis to Ukraine, which is still at war 
with Russian-backed separatists in the east, were alarmed that that aid 
had inexplicably been put on hold.
  Meanwhile, officials at the Defense Department and within the Office 
of Management and Budget became increasingly concerned that the hold 
also violated the law. Their concerns turned out to be accurate.
  Public reports have indicated that the White House is in possession 
of early August emails, exchanges between Acting Chief of Staff Mick 
Mulvaney and White House budget officials seeking to provide an 
explanation for the funds--an explanation, I should note, that they 
were trying to provide after the President had already ordered the 
hold.
  Mr. Mulvaney presumably has answers to these questions. We don't know 
what those answers are, but he should provide them to this Senate and 
to the American people.
  Finally, on October 17, 2019, at a press briefing at the White House, 
Mr. Mulvaney left no doubt that President Trump withheld the essential 
military aid as leverage to try to extract phony political 
investigations as part of his effort to solicit foreign interference in 
the 2020 election.
  This was an extraordinary press conference. Mr. Mulvaney made clear 
that the President was, in fact, pressuring Ukraine to investigate the 
conspiracy theory that Ukraine, rather than Russia, had interfered in 
the 2016 election--a conspiracy theory promoted by none other than the 
great purveyor of democracy, Vladimir Putin himself.
  When White House reporters attempted to clarify this acknowledgement 
of a quid pro quo related to security assistance, Mr. Mulvaney replied, 
``We do that all the time with foreign policy. I have news for 
everybody: get over it.''
  Let's listen to a portion of that stunning exchange.
  (Text of Videotape presentation:)

       Answer. Did he also mention to me in the past that the 
     corruption related to the DNC server, absolutely. No question 
     about that. But that's it. And that's why we held up the 
     money. Now there was a report--
       Question. So the demand for an investigation into the 
     Democrats was part of the reason that he wanted to withhold 
     funding to Ukraine.
       Answer. The look back to what happened in 2016--
       Question. The investigation into Democrats--
       Answer.--certainly was part of the thing he was worried 
     about in corruption with that nation. That is absolutely 
     appropriate.
       Question. But to be clear, what you just described is a 
     quid pro quo. It is: Funding will not flow unless the 
     investigation into the Democratic server happens as well.
       Answer. We do that all the time with foreign policy. We 
     were holding money at the same time for--what was it? The 
     Northern Triangle countries. We were holding up aid at the 
     Northern Tribal countries so that they would change their 
     policies on immigration. By the way--and this speaks to an 
     important point--I'm sorry? This speaks to an important 
     point, because I heard this yesterday and I can never 
     remember the gentleman who testified. Was it McKinney, the 
     guy--was that his name? I don't know him. He testified 
     yesterday. And if you go--and if you believe the news 
     reports--okay? Because we've not seen any transcripts of 
     this. The only transcript I've seen was Sondland's testimony 
     this morning. If you read the news reports and you believe 
     them--what did McKinney say yesterday? Well, McKinney said 
     yesterday that he was really upset with the political 
     influence in foreign policy. That was one of the reasons he 
     was so upset about this. And I have news for everybody: Get 
     over it. There's going to be political influence in foreign 
     policy.

  Mr. Manager JEFFRIES. In this extraordinary press conference, Mr. 
Mulvaney spoke with authority and conviction about why President Trump 
withheld the aid. He did not mince his words. But then following the 
press

[[Page S410]]

conference, he tried to walk back his statements, as if he had not said 
them, or had not meant them. We need to hear from Mick Mulvaney 
directly so he can clarify his true intentions.
  Having gone through the need for the evidence, let's briefly address 
the President's arguments that he can block this testimony. That 
argument is not only wrong, it fundamentally undermines our system of 
checks and balances.
  Step back for a moment and consider the extraordinary position that 
President Trump is trying to manufacture for himself.
  The Department of Justice has already said that the President cannot 
be indicted or prosecuted in office. As we sit here today, the 
President has actually filed a brief in the Supreme Court saying he 
cannot be criminally investigated while in the White House.
  The Senate and the House are the only check that is left when the 
President abuses his power, tries to cheat in the next election, 
undermines our national security, breaks the law in doing so, and then 
tries to cover it up. This is America. No one is above the law.
  But if the President is allowed to determine whether he is even 
investigated by Congress, if he is allowed to decide whether he should 
comply with lawful subpoenas in connection with an impeachment inquiry 
or trial, then he is the ultimate arbiter of whether he did anything 
wrong. That cannot stand.
  If he can't be indicted, and he can't be impeached, and he can't be 
removed, then he can't be held accountable. That is inconsistent with 
the U.S. Constitution.
  You will no doubt hear that the reason the President blocked all of 
these witnesses, including Mr. Mulvaney, from testifying is because of 
some lofty concern for the Office of the Presidency and the 
preservation of executive privilege.
  Let's get real. How can blocking witnesses from telling the truth 
about the President's misconduct help preserve the Office of the 
Presidency? This type of blanket obstruction undermines the credibility 
of the Office of the Presidency and deals the Constitution a 
potentially mortal death blow.
  To be clear, executive privilege does not provide a legally 
justifiable basis for his complete and total blockage of evidence. In 
fact, as you heard earlier today, President Trump never even invoked 
executive privilege--not once. And without ever asserting this 
privilege, how can you consider his argument in a serious fashion?
  Instead, speaking through Mr. Cipollone, the distinguished White 
House Counsel, in a letter dated October 8, 2019, President Trump 
simply decided that he did not want to participate in the investigation 
into his own wrongdoing.
  It was a categorical decision not to cooperate, without consideration 
of specific facts or legal arguments. In fact, even the words President 
Trump used through his White House Counsel were made up.
  In the letter, Mr. Cipollone referred to so-called ``executive branch 
confidentiality interests.'' But that is not a recognized 
jurisprudential shield, not a proper assertion of executive privilege. 
To the extent that there are privilege issues to consider, those can be 
resolved during their testimony, as they have been for decades.
  And finally, the President claimed that Mr. Mulvaney could not be 
compelled to testify because of so-called absolute immunity. But every 
court to address this legal fiction has rejected it.
  As the Supreme Court emphatically stated, in unanimous fashion, in 
its decision on the Nixon tapes, confidentiality interests of the 
President must yield to an impeachment inquiry when there is a 
legitimate need for the information, as there is here today.
  There can be no doubt that Mr. Mulvaney, as the President's Chief of 
Staff and head of the Office of Management and Budget, is uniquely 
situated to provide this distinguished body with relevant and important 
information about the charges in the Articles of Impeachment.
  The President's obstruction has no basis in law and should yield to 
this body's coequal authority to investigate impeachable and corrupt 
conduct.
  One final point bears mentioning. If the President wanted to make 
witnesses available, even while preserving the limited protections of 
executive privilege, he can do so. In fact, President Trump expressed 
his desire for witnesses to testify in the Senate just last month.
  Let's go to the videotape.
  (Text of Videotape presentation:)

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

  Mr. Manager JEFFRIES. If President Trump had nothing to hide, as he 
and his advisers repeatedly claim, they should all simply testify in 
the Senate trial. What is President Donald John Trump hiding from the 
American people?
  The Constitution requires a fair trial. Our democracy needs a fair 
trial.
  The American people deserve a fair trial. A fair trial means 
witnesses. A fair trial means documents. A fair trial means a 
consideration of all of the available evidence. A fair trial means 
testimony from Mick Mulvaney.
  Mr. Chief Justice, the House managers reserve the balance of our 
time.
  The CHIEF JUSTICE. Mr. Cipollone.
  Mr. Counsel CIPOLLONE. Thank you.
  Mr. Mike Purpura from the White House Counsel's Office, Deputy 
Counsel to the President, will give the argument.
  Mr. Counsel PURPURA. Mr. Chief Justice, Members of the Senate, good 
evening. My name is Michael Purpura. I serve as Deputy Counsel to the 
President.
  We strongly oppose the amendments and support the resolution. There 
is simply no need to alter the process on witnesses and documents from 
that of the Clinton trial, which was supported by this body 100 to 0.
  At its core, this case is very simple, and the key facts are 
undisputed.
  First, you have seen the transcripts which the President released--
transparent and unprecedented. There was no quid pro quo for anything. 
Security assistance funds aren't even mentioned on the call.
  Second, President Zelensky and the highest ranking officials in the 
Ukrainian Government repeatedly have said there was no quid pro quo and 
there was no pressure.
  Third, the Ukrainians were not even aware of the pause in the aid at 
the time of the call and weren't aware of it--they did not become aware 
of it until more than a month later.
  Fourth, the only witnesses in the House record who actually spoke to 
the President about the aid--Ambassador Sondland and Senator Ron 
Johnson--say the President was unequivocal in saying there was no quid 
pro quo.
  Fifth, and this one is pretty obvious, the aid flowed and President 
Trump and President Zelensky met without any investigations started or 
announced.
  Finally--and I ask that you not lose sight of the big picture here--
by providing legal aid to Ukraine, President Trump has proven himself 
to be a better friend and ally to Ukraine than his predecessor.
  The time for the House managers to bring their case is now. They had 
their chance to develop their evidence before they sent the Articles of 
Impeachment to this Chamber. This Chamber's role is not to do the 
House's job for it.
  I yield the balance of my time to Mr. Cipollone.
  Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice.
  Just a couple of observations. First of all, as Mr. Purpura said, 
what we are talking about is when this question is addressed. Under the 
resolution, that will be next week. This resolution was accepted 100 to 
0. Some of you were here then and thought it was great. If we keep 
going like this, it will be next week. For those of you keeping score 
at home, they haven't even started yet.
  We are here today. We came hoping to have a trial. They spent the 
entire day telling you and the American people that they can't prove 
their case. I could have told you that in 5 minutes and saved us all a 
lot of time.
  They came here talking about the GAO. It is an organization that 
works for Congress. Do you know who disagrees with the GAO? Don't take 
it from me; they do. They sent you Articles of Impeachment that make no 
claim of any violation of any law.
  By the way, you can search high and low in the Articles of 
Impeachment,

[[Page S411]]

and you know what it doesn't say? It doesn't say ``quid pro quo'' 
because there wasn't any. Only in Washington would someone say that it 
is wrong when you don't spend taxpayer dollars fast enough even if you 
spend them on time.
  Let's talk about the Judiciary Committee for a second. They spent 2 
days in the Judiciary Committee--2 days. The Judiciary Committee is 
supposed to be in charge of impeachments. The delivery time for the 
articles they have produced was 33 days. I think this might be the 
first impeachment in history where the delivery time was longer than 
the investigation in the Judiciary Committee.
  They come here and falsely accuse people--by the way, they falsely 
accused you. You are on trial now. They falsely accused people of phony 
political investigations. Really. Since the House Democrats took over, 
that is all we have had from them. They have used their office and all 
the money that the taxpayers send to Washington to pay them to conduct 
phony political investigations against the President, against his 
family, against anyone who knew him. They started impeaching him the 
minute he was elected. They weaponized the House of Representatives to 
investigate incessantly their political opponent. And they come here 
and make false allegations of phony political investigations. I think 
the doctors call that projection. It is time for it to end. It is time 
for someone--for the Senate to hold them accountable.
  Think about what they are asking. I said it; they didn't deny it. 
They are trying to remove President Trump's name from the ballot, and 
they can't prove their case. They have told you that all day long. 
Think about what they are asking some of you Senators to do. Some of 
you are running for President. They are asking you to use your office 
to remove your political opponent from the ballot. That is wrong. That 
is not in the interest of our country. And to be honest with you, it is 
not really a show of confidence.
  I suppose we will have this debate again next week if we ever get 
there. It is getting late. I would ask you, respectfully, if we could 
simply start--maybe tomorrow we can start, and they can make their 
argument, and they can, I guess, make a case that they once called 
``overwhelming.'' We will see.
  But this resolution is right, it is fair, and it makes sense. You 
have a right to hear what they have to say before you have to decide 
these critical issues. That is all this is about. Is it now or is it a 
week from now? Seriously, can we please start?
  Thank you.
  The CHIEF JUSTICE. Mr. Cipollone, is your side complete?
  Mr. Counsel CIPOLLONE. Yes, we are, Mr. Chief Justice.
  The CHIEF JUSTICE. Thank you.
  The House managers have 14 minutes remaining.
  Mr. Manager JEFFRIES. Counsel to the President indicated that we have 
not charged President Trump with a crime. We have charged him with 
crimes against the U.S. Constitution--high crimes and misdemeanors and 
abuse of power. It strikes at the very heart of what the Framers of the 
Constitution were concerned about--betrayal of one's oath of office for 
personal gain and the corruption of our democracy. High crimes and 
misdemeanors are what this trial is all about.
  Counsel for the President again has declined to address the 
substantive merits of the amendment that has been offered and tried to 
suggest that House Democrats have only been focused on trying to oust 
President Trump. Nothing could be further from the truth.
  In the last year, we passed 400 bills and sent them to this Chamber, 
and 275 of those bills are bipartisan in nature, addressing issues like 
lowering healthcare costs and prescription drug prices, trying to deal 
with the gun violence epidemic. We have worked with President Trump on 
criminal justice reform. I personally worked with him, along with all 
of you, on the First Step Act. We worked with him on the U.S.-Mexico-
Canada trade agreement. We worked with him to fund the government. We 
don't hate this President, but we love the Constitution. We love 
America. We love our democracy. That is why we are here today.
  The question was asked by Mr. Sekulow as he opened before this 
distinguished body: Why? Why are we here?
  Let me see if I can just posit an answer to that question. We are 
here, sir, because President Trump pressured a foreign government to 
target an American citizen for political and personal gain. We are 
here, sir, because President Trump solicited foreign interference in 
the 2020 election and corrupted our democracy. We are here, sir, 
because President Trump withheld $391 million in military aid from a 
vulnerable Ukraine without justification in a manner that has been 
deemed unlawful. We are here, sir, because President Donald Trump 
elevated his personal political interests and subordinated the national 
security interests of the United States of America. We are here, sir, 
because President Trump corruptly abused his power, and then he tried 
to cover it up. And we are here, sir, to follow the facts, apply the 
law, be guided by the Constitution, and present the truth to the 
American people. That is why we are here, Mr. Sekulow. And if you don't 
know, now you know.
  I yield to my distinguished colleague, Chairman Schiff.
  Mr. Manager SCHIFF. I thank the gentleman for yielding and just want 
to provide a couple of quick fact checks to my colleagues at the other 
table.
  First, Mr. Purpura said that security assistance funds were not 
mentioned at all in the July 25 call between President Trump and 
President Zelensky. Let's think back to what was discussed in that 
call. You might remember from that call that President Zelensky thanks 
President Trump for the Javelin anti-tank weapons and says they are 
ready to order some more.
  And what is President Trump's immediate response?
  I have a favor to ask, though.
  What was it about the President of Ukraine's bringing up military 
assistance that triggered the President to go immediately to the favor 
that he wanted? I think that it is telling that it takes place in that 
part of the conversation.
  So, yes, security assistance, military assistance did come up in that 
call. It came up immediately preceding the ask. What kind of message do 
you think that sends to Ukraine? They are not stupid. The people 
watching this aren't stupid.
  Now, Mr. Purpura said: Well, they never found out about it--or they 
didn't find out about the freeze of the aid until a month later. Mr. 
Purpura needs to be a little more careful with his facts. Let me tell 
you about some of the testimony you are going to hear, and you will 
only hear it because it took place in the House. These were other 
witnesses from whom you wouldn't be able to hear it.
  You had Catherine Croft, a witness from the State Department, a 
career official at the State Department, who talked about how quickly, 
actually, after the freeze went into place that the Ukrainians found 
out about it, and she started getting contacts from the Ukrainian 
Embassy here in Washington. She said she was really impressed with her 
diplomatic tradecraft. What does that mean? It means she was really 
impressed with how quickly the Ukrainians found out about something 
that the administration was trying to hide from the American people.
  Ukraine found out about it. In fact, Laura Cooper, a career official 
at the Defense Department, said that her office started getting 
inquiries from Ukraine about the issues with the aid on July 25--the 
very day of the call. So much for Ukraine's not finding out about this 
until a month later.
  I thought this was very telling, too: The New York Times disclosed 
that by July 30--so within a week of the call between President Trump 
and President Zelensky--Ukraine's Foreign Ministry received a 
diplomatic cable from its Embassy, indicating that Trump had frozen the 
military aid. Within a week, that cable is reported to have gone from 
the Ukrainian Embassy to the Ukrainian Foreign Ministry.
  Former Ukrainian Deputy Foreign Minister Olena Zerkal said:

       We had this information. It was definitely mentioned that 
     there were some issues.

  She went on to say that the cable was simultaneously provided to 
President Zelensky's office, but Andrii Derkach, whom you will hear 
more about later--a top aide to President

[[Page S412]]

Zelensky--reportedly directed her to keep silent and not discuss the 
hold with reporters or Congress.
  Now, we heard testimony about why the Ukrainians wanted to keep it 
secret that they knew about the hold. You can imagine why Zelensky 
didn't want his own people to know that the President of the United 
States was holding back aid from him. What does that look like for a 
new President of Ukraine who is trying to make the case that he is 
going to be able to defend his own country because he has such a great 
relationship with the great patron, the United States? He didn't want 
the Ukrainians to know about it. But do you know? Even more than that, 
he didn't want the Russians to know about it for the reasons we talked 
about earlier. So, yes, the Ukrainians kept it close to the vest.
  Mr. Purpura also went on to say: Well, the Ukrainians say they don't 
feel any pressure.
  That is what they say now. Of course, we know that it is not true.
  We have had testimony that they didn't want to be used as a political 
pawn in U.S. domestic politics. They resisted it. You will hear more 
testimony about that, about the efforts to push back on this public 
statement--how they tried to water it down and how they tried to leave 
out the specifics of how Giuliani, at the President's behest, forced 
them: You know, no, this isn't going to be credible if you don't add in 
Burisma and if you don't add in 2016.
  You will hear about the pressure. They felt it. So why isn't 
President Zelensky now saying he was pressured? Well, can you imagine 
the impact of that? Can you imagine the impact if President Zelensky 
were to acknowledge today: Hell, yes, we felt pressured. You would, 
too. We are at war with Russia for crying out loud. Yes, we felt 
pressured. We needed those hundreds of millions in military aid. Do you 
think I am going to say that now? I still can't get in the White House 
door. They let Lavrov in, the Russian Foreign Minister. They let him 
in, but I can't even get in the White House door. Do you think I am 
going to go out now and admit to this scheme?
  I mean, anyone who has watched this President in the last 3 years 
knows how vindictive he can be. Do you think it would be smart for the 
President of Ukraine to contradict the President of the United States 
so directly on an issue he is being impeached for? That would be the 
worst form of malpractice for the new President of Ukraine. We 
shouldn't be surprised he would deny it. We should be surprised if he 
were to admit it.
  Let me just end with a couple of observations about Mr. Cipollone's 
comments.
  He says: This is no big deal. We are not talking about when we are 
going to have witnesses--or if we are going to have witnesses. We are 
just talking about when. We are just talking about when, as if, well, 
later, they are going to say: Oh, yes, well, we are happy to have the 
witnesses now. It is just a question of when.
  OK. As my colleague said, let's be real. There will be no ``when.'' 
Do you think they are going to have an epiphany a few days from now and 
say: OK, we are ready for witnesses? No. No, their goal is to get you 
to say no now, to get you to have the trial, and then argue to ``make 
it go away.'' Let's dismiss the whole thing.
  That is the plan. A vote to delay is a vote to deny. Let's make no 
mistake about that. They are not going to have an epiphany a few days 
from now and suddenly say: OK, the American people do deserve the 
answers. Their whole goal is that you will never get to that point. You 
will never get to that point. When they say when, they mean never.
  I yield back.
  The CHIEF JUSTICE. The majority leader is recognized.


                            Motion to Table

  Mr. McCONNELL. Mr. Chief Justice, I make a motion to table the 
amendment, and I ask for the yeas and nays.
  The CHIEF JUSTICE. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The senior assistant legislative clerk called the roll.
  The result was announced--yeas 53, nays 47, as follows:

                         [Rollcall Vote No. 18]

                                YEAS--53

     Alexander
     Barrasso
     Blackburn
     Blunt
     Boozman
     Braun
     Burr
     Capito
     Cassidy
     Collins
     Cornyn
     Cotton
     Cramer
     Crapo
     Cruz
     Daines
     Enzi
     Ernst
     Fischer
     Gardner
     Graham
     Grassley
     Hawley
     Hoeven
     Hyde-Smith
     Inhofe
     Johnson
     Kennedy
     Lankford
     Lee
     Loeffler
     McConnell
     McSally
     Moran
     Murkowski
     Paul
     Perdue
     Portman
     Risch
     Roberts
     Romney
     Rounds
     Rubio
     Sasse
     Scott (FL)
     Scott (SC)
     Shelby
     Sullivan
     Thune
     Tillis
     Toomey
     Wicker
     Young

                                NAYS--47

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Cortez Masto
     Duckworth
     Durbin
     Feinstein
     Gillibrand
     Harris
     Hassan
     Heinrich
     Hirono
     Jones
     Kaine
     King
     Klobuchar
     Leahy
     Manchin
     Markey
     Menendez
     Merkley
     Murphy
     Murray
     Peters
     Reed
     Rosen
     Sanders
     Schatz
     Schumer
     Shaheen
     Sinema
     Smith
     Stabenow
     Tester
     Udall
     Van Hollen
     Warner
     Warren
     Whitehouse
     Wyden
  The motion to table is agreed to; the amendment is tabled.
  The CHIEF JUSTICE. The majority leader is recognized.


                       Unanimous Consent Request

  Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent to ask the 
Democratic leader, as there are certain similarities to all of these 
amendments, whether he might be willing to enter into a unanimous 
consent agreement to stack these votes.
  The CHIEF JUSTICE. Without objection, it is so ordered.
  The inquiry is permitted.
  Mr. SCHUMER. Thank you, Mr. Chief Justice.
  The bottom line is very simple.
  As has been clear to every Senator and the country, we believe 
witnesses and documents are extremely important and that a compelling 
case has been made for them. We will have votes on all of those.
  Also, the leader, without consulting us, made a number of significant 
changes that significantly deviated from the 1999 Clinton resolution. 
We want to change those, so there will be a good number of votes. We 
are willing to do some of those votes tomorrow. There is no reason we 
have to do them all tonight and inconvenience the Senate and the Chief 
Justice, but we will not back off on getting votes on all of these 
amendments, which we regard as extremely significant and important to 
the country.
  The CHIEF JUSTICE. The majority leader is recognized.
  Mr. McCONNELL. Mr. Chief Justice, as I have said repeatedly, all of 
these amendments under the resolution could be dealt with at the 
appropriate time.
  I suggest the absence of a quorum.
  The CHIEF JUSTICE. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The CHIEF JUSTICE. Without objection, it is so ordered.
  Mr. SCHUMER. Mr. Chief Justice.
  The CHIEF JUSTICE. The Democratic leader is recognized.


                           Amendment No. 1288

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

       The Senator from New York [Mr. Schumer] proposes an 
     amendment numbered 1288.

       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 
     Secretary of Defense 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 Department of Defense, referring 
     or relating to--
       (A) the actual or potential suspension, withholding, 
     delaying, freezing, or releasing of United States foreign 
     assistance, military

[[Page S413]]

     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), 
     including but not limited to--
       (i) communications among or between officials at the 
     Department of Defense, White House, Office of Management and 
     Budget, Department of State, or Office of the Vice President;
       (ii) documents, communications, notes, or other records 
     created, sent, or received by Secretary Mark Esper, Deputy 
     Secretary David Norquist, Undersecretary of Defense Elaine 
     McCusker, and Deputy Assistant Secretary of Defense Laura 
     Cooper, or Mr. Eric Chewning;
       (iii) draft or final letters from Deputy Secretary David 
     Norquist to the Office of Management and Budget; and
       (iv) unredacted copies of all documents released in 
     response to the September 25, 2019, Freedom of Information 
     Act request by the Center for Public Integrity (tracking 
     number 19-F-1934);
       (B) the Ukrainian government's knowledge prior to August 
     28, 2019, of any actual or potential suspension, withholding, 
     delaying, freezing, or releasing of United States foreign 
     assistance, military assistance, or security assistance to 
     Ukraine, including but not limited to all meetings, calls, or 
     other engagements with Ukrainian officials regarding 
     potential or actual suspensions, holds, or delays in United 
     States assistance to Ukraine, including but not limited to--
       (i) communications received from the Department of State 
     concerning the Ukrainian Embassy's inquiries about United 
     States foreign assistance, military assistance, and security 
     assistance to Ukraine; and
       (ii) communications received directly from the Ukrainian 
     Embassy about United States foreign assistance, military 
     assistance, and security assistance to Ukraine;
       (C) communications, opinions, advice, counsel, approvals, 
     or concurrences provided by the Department of Defense, Office 
     of Management and Budget, or the White House, on the legality 
     of any suspension, withholding, delaying, freezing, or 
     releasing of United States foreign assistance, military 
     assistance, and security assistance to Ukraine;
       (D) planned or actual meetings with President Trump related 
     to United States foreign assistance, military assistance, or 
     security assistance to Ukraine, including but not limited to 
     any talking points and notes for Secretary Mark Esper's 
     planned or actual meetings with President Trump on August 16, 
     August 19, or August 30, 2019;
       (E) the decision announced on or about September 11, 2019, 
     to release appropriated foreign assistance, military 
     assistance, and security assistance to Ukraine, including but 
     not limited to any notes, memoranda, documentation or 
     correspondence related to the decision; and
       (F) all meetings and calls between President Trump and the 
     President of Ukraine, including but not limited to 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; and
       (2) the Sergeant at Arms is authorized to utilize the 
     services of the Deputy Sergeant at Arms or any other employee 
     of the Senate in serving the subpoena authorized to be issued 
     by this section.

  The CHIEF JUSTICE. The amendment is arguable by the parties for 2 
hours.
  Mr. Manager Schiff, are you a proponent or opponent?
  Mr. Manager SCHIFF. We are a proponent.
  The CHIEF JUSTICE. Mr. Cipollone?
  Mr. Counsel CIPOLLONE. Mr. Chief Justice, we are an opponent.
  The CHIEF JUSTICE. Mr. Schiff, the House managers can proceed first 
and reserve their time for rebuttal.
  Mr. Manager CROW. Mr. Chief Justice, the House managers will be 
reserving the balance of our time to respond to the argument of the 
counsel for the President.
  Mr. Chief Justice, Senators, counsel for the President, and the 
American people, I would like to begin by getting something off of my 
chest, something that has been bothering me for a little while.
  Counsel for the President and some other folks in this room have been 
talking a lot about how late it is getting, how long this debate is 
taking. It is almost 10 p.m. in Washington, DC. They say: Let's get the 
show on the road. Let's get moving.
  The whole time, the only thing I can think about is how late it is in 
other places because right now, it is the middle of the night in 
Europe, where we have over 60,000 U.S. troops. There are helicopter 
pilots flying training missions, tankers maneuvering across fields, 
infantrymen walking with 100-pound packs, and, yes, Ukrainian soldiers 
getting ready to wake up in their trenches facing off against Russian 
tanks rights now. I don't think any of those folks want to hear us talk 
about how tired we are or how late it is. We have time to have this 
debate.
  That is why the House managers strongly support this amendment to 
subpoena key documents from the Department of Defense, because just 
like the subpoena for OMB, these documents from DOD speak directly to 
one of President Trump's abuses--his withholding of critical military 
aid from our partner Ukraine to further his personal political 
campaign.
  In fact, $250 million of taxpayer-funded military aid for Ukraine was 
managed by the Department of Defense as part of the Ukraine Security 
Assistance Initiative. These funds, approved by 87 Senators in this 
very room, would purchase additional training, equipment, and advising 
to strengthen the capacity of Ukraine's Armed Forces.
  The equipment approved for Ukraine included sniper rifles, rocket-
propelled grenade launchers, counter-artillery radar, night vision 
goggles, and medical supplies. This equipment was to be purchased 
almost exclusively from American businesses. This equipment, along with 
the training and advising provided by DOD, was intended to protect our 
national security by helping our friend Ukraine fight against Vladimir 
Putin's Russia.
  Earlier, counsel for the President tried to make the argument: Well, 
it made it there. The aid eventually made it there. The delay doesn't 
really matter.
  You heard me talk about why the delay does matter, but what counsel 
for the President didn't say is that all of their aid has not made it 
there. Congress had to pass another law so that $35.2 million of that 
aid wouldn't expire and lapse. We did, but to this day, $18.5 million 
of that money remains outstanding and hasn't made its way to the 
battlefield.
  It was DOD that repeatedly advised the White House and OMB of the 
importance of security assistance not only to Ukraine but also U.S. 
national security. It was DOD in August of 2019 that warned OMB that 
the freeze was unlawful and that the funds could be lost as a result. 
It was DOD that scrambled, after the hold was lifted without 
explanation on September 11, to spend the funds before they expired at 
the end of the month.
  Without a doubt, DOD has key documents that the President has refused 
to turn over to Congress--key documents that go to the heart of the 
ways in which the President abused his power. It is time to subpoena 
those documents.
  DOD documents would provide insight into critical aspects of this 
hold. They would show the decisionmaking process and motivations behind 
President Trump's freeze. They would reveal the concerns expressed by 
DOD and OMB officials that the hold was violating the law. They would 
reveal our defense officials' grave concerns about the impact of the 
freeze on Ukraine and U.S. national security. They would show that 
senior Defense Department officials repeatedly attempted to convince 
President Trump to release the aid. In short, they would further 
establish the President's scheme to use our national defense funds to 
benefit his personal political campaign.
  We are not speculating about the existence of these documents, and we 
are not guessing about what they might show because during the course 
of the investigation in the House, witnesses who testified before the 
committees identified multiple documents directly relevant to the 
impeachment inquiry that DOD continues to withhold. We know these 
documents exist, and we know that the only reason we do not have them 
is because the President himself directed the Pentagon not to produce 
them because he knows what they would show.
  To demonstrate the significance of the DOD documents and the value 
they would provide in this trial, I would like to walk you through some 
of what we know exists but that the Trump administration continues to 
refuse to turn over. Again, based on what is known from the testimony 
and the few documents that have been obtained from public reporting and 
lawsuits, it is clear that the President is trying to hide this 
evidence because he is afraid of what it would show the American 
people.
  We know that DOD has documents that reveal that as early as June, the 
President was considering withholding military aid for Ukraine. As I 
mentioned earlier, the President began

[[Page S414]]

questioning military aid to Ukraine in June of last year. The 
President's questions came days after DOD issued a press release on 
June 18 announcing it would provide its $250 million portion of the aid 
to Ukraine.
  According to public reporting, Deputy Under Secretary of Defense 
Elaine McCusker, who manages the DOD's budget, learned about the 
President's questions. We know this email exists because in response to 
a Freedom of Information Act lawsuit, the Trump administration was 
forced to release a redacted email. But DOD provided none of those 
documents to the House.
  Deputy Assistant Secretary of Defense Laura Cooper and her team were 
tasked by the Secretary of Defense with responding to the President's 
questions about Ukraine assistance. Ms. Cooper testified that she put 
those answers in an email and described those emails during her 
deposition. She testified that DOD advised that the security assistance 
was crucial for both Ukraine and U.S. national security and had strong 
bipartisan support in Congress. But DOD provided none of those 
documents to the House.
  With this proposed amendment, the Senate has an opportunity to obtain 
and review the full record that can further demonstrate how and why the 
President was holding the aid.
  Laura Cooper also testified about the interagency meetings that 
occurred in late 2019--the meetings at which DOD was shocked to learn 
that President Trump had placed a mysterious hold on the security 
assistance. We know what happened at several of those meetings because 
Ms. Cooper participated in them, in some cases with other senior 
Defense Department officials. However, we don't have Laura Cooper's 
notes from those meetings. We don't have the emails she sent to senior 
DOD officials reporting the stunning news about the President's hold. 
We don't have the emails that show the response from the Secretary of 
Defense and other senior defense officials because DOD has refused to 
provide them.
  Separately, Laura Cooper testified about when the Ukraine first 
learned of the President's secret hold on the military assistance. The 
same day as the President's July 25 call with President Zelensky, DOD 
officials received two emails from the State Department indicating that 
officials from the Ukrainian Embassy and congressional staff had become 
aware of the hold and were starting to ask questions.
  Ms. Cooper testified that she was informed that ``the Ukrainian 
embassy and House Foreign Affairs Committee are asking about the 
military aid'' and that ``The Hill'' knows about the FMS situation to 
an extent, and so does the Ukrainian Embassy. All of this shows that 
people were starting to get very worried.
  Again, this amendment for a subpoena to DOD would compel the 
production of these important documents, but, again, there is more. DOD 
documents would also reveal key facts about what happened on July 25 
after OMB directed DOD to ``hold off'' on any additional DOD 
obligations for the assistance to Ukraine. How did DOD officials react 
to OMB's directive to keep this order quiet? Did DOD officials raise 
immediate concerns about the legality of the hold--concerns that they 
would eventually vocally articulate to OMB in August? Did DOD officials 
hear from the American businesses that were on tap to provide the 
equipment for Ukraine? Was DOD informed that the President's hold would 
undermine American jobs? Answers to those questions may be found in DOD 
emails--emails that we can all see if you issue the subpoena.
  Earlier, I mentioned that by late July, officials in our government 
had raised significant concerns about the impact and the legality of 
President's Trump's hold on the military aid. We know this from witness 
testimony, public reporting, and documents produced in the Freedom of 
Information Act lawsuits. For example, at an interagency meeting on 
July 31, Laura Cooper, one of the officials at DOD, announced that 
because there were two legally available options to continue the hold 
and they did not have direction to pursue either of those legal 
options, DOD would have to start spending the funds on August 6. Cooper 
explained that if they did not start spending the funds, they would 
risk violating the Impoundment Control Act. It was a fateful warning 
because that is exactly what happened.

  Throughout August, Pentagon officials grew increasingly concerned as 
the hold dragged on. According to public reporting, DOD wrote to OMB on 
August 9 to say that it could no longer claim the delay would have no 
effect on the Defense Department's ability to spend the funds. We only 
know this through recent reporting about the contents of the email.
  President Trump certainly hasn't made this information public. In 
response to a Freedom of Information Act request, the Trump 
administration released this August 9 email from Elaine McCusker, the 
Pentagon's chief budget officer. As you can see from the slide in front 
of you, it is almost entirely blacked out.
  According to public reporting, the email said:

       As we discussed, as of 12 AUG, we don't think we can agree 
     that the pause ``will not preclude timely execution.'' We 
     hope it won't and will do all we can to execute once the 
     policy decision is made, but can no longer make that 
     declarative statement.

  Let me interpret what is actually being said here. What is actually 
being said is: We are in trouble. We can't spend the money in the time 
that we have left, and we are not going to cover your tracks anymore 
and say that we can. The extensive redactions in the Freedom of 
Information Act productions highlight the administration's efforts to 
conceal the President's wrongdoing. They also underscore why the Senate 
must subpoena DOD documents to ensure that all of the relevant facts 
come to light, and, yes, there is more.
  Based on the concerns expressed by McCusker and others at DOD, OMB 
eventually dropped from the documents the statement that the hold would 
not preclude timely execution of the funds. But OMB also circulated 
talking points claiming: ``No action has been taken by OMB that would 
preclude the obligation of these funds before the end of the fiscal 
year.''
  Let me just explain what is going on here. Everybody is getting 
worried. Everybody knows that something bad is about to happen. Nobody 
has a good explanation, and nobody wants to be left holding the bag. So 
they are sending the emails, and they are sending the memos to say: I 
told you so, and I am not going to be held responsible.
  DOD's McCusker took issue with OMB's talking point. She did so in 
writing. Ms. McCusker emailed Mr. Duffey to tell him that OMB's talking 
points were ``just not accurate'' and that DOD had been consistently 
conveying that point for weeks. Again, we know this from a press 
report--not from documents produced to Congress by the Trump 
administration.
  Now, President Trump did release some documents in response to a 
lawsuit under the Freedom of Information Act, but here is what Ms. 
McCusker's email looked like when it was released by the Trump 
administration.
  Her concern that OMB's talking point was ``just not accurate'' was, 
again, entirely blacked out. What else is being hidden from the 
American people? The Senate should issue the subpoena.
  DOD documents would also shed light on OMB's actions as the 
President's scheme unraveled. On September 9, Ms. McCusker informed 
Duffey that DOD could fall short of spending $120 million or more 
because of the hold. Duffey responded by suggesting that it would be 
DOD's fault if they ended up violating the Impoundment Control Act.
  McCusker responded: ``You can't be serious. I am speechless.''
  It will come as no surprise, then, that the administration entirely 
redacted this email, too, when it produced the documents in connection 
with the Freedom of Information Act lawsuit. Thanks to public 
reporting, though, we do know its contents, but what else is being 
hidden from the American people? What other reactions did this exchange 
set off within DOD? And were those concerns brought back to the White 
House?
  The Department of Defense's documents would shed light on these 
questions. The American people deserve answers.
  Make no mistake, the record before the House fully supports the 
conclusion that President Trump froze vital military aid to pressure 
Ukraine into helping the President's political campaign. The DOD 
documents would provide further evidence of this scheme. They

[[Page S415]]

would expose the full extent of the truth to Congress and the American 
people and would firmly rebut any notion that President Trump was 
acting based on concerns about corruption or other countries' 
contributions, and the President knows it. If there was any doubt, 
recent events prove that DOD has documents that are directly relevant 
to this trial.
  As I spoke about earlier, before I was a Member of Congress, I was a 
soldier in Iraq and Afghanistan. I do know what it feels like to not 
have the equipment that you need. The men and women who work at the 
Department of Defense and administer this vital aid understand that 
reality too. That is why they repeatedly made the case to President 
Trump that military assistance to Ukraine is important and that it 
would not only help Ukraine but also bolster our deterrence against 
further Russian aggression in Europe. Every time we have these 
discussions, that might seem abstract to people around the country. I 
do think about those 60,000 U.S. troops we have in Europe, many of 
whom, by the way, are stationed there with their families, their 
spouses, their children, and how they are training and working every 
day to hold the line and fight for freedom and liberty in Europe. And 
if the war in Ukraine spills over outside of Ukraine, it is those men 
and women who will have to get into their tanks and their helicopters 
and do their job.
  The United States Senate cannot let this information remain hidden. 
It goes directly to one of President Trump's abuses of power--again, 
withholding aid that 87 people in this room already voted for. The 
President, the Senate, and the American people deserve a fair trial. 
Let's see the documents and let's see them now and let the facts speak 
for themselves.
  I would like to end by reading a short transcript, something that I 
was thinking about earlier this evening. This is a transcript from 
Ambassador Taylor's testimony. I just want to take a minute to read it 
to you. He was talking about a trip that he made to visit our friends 
in Ukraine.

       We had a meeting with the defense minister. It was the 
     first meeting of the day. We went over there. They invited us 
     to a ceremony that they have in front of their ministry every 
     day. Every day they have this ceremony, and it is about a 
     half-an-hour ceremony where soldiers are in formation, the 
     defense minister, and families of soldiers who have been 
     killed are all there. The selection of which soldiers who 
     have been killed are honored is on the date of it.

  So whatever today's date is, you know if we were there today, on the 
22nd of October, the families of those soldiers who were killed on any 
22nd of October in the previous 5 years would be there.
  Ambassador Taylor was talking about our friends. At least 13,000 of 
them have given their lives in the last 5 years in the fight for 
liberty in Europe. This, ladies and gentleman, is a national disgrace, 
and only the people in this room can fix it. It is time to issue the 
subpoenas.
  Mr. Chief Justice, the House managers reserve the balance of our time 
for an opportunity to respond to the President's argument.
  The CHIEF JUSTICE. Mr. Cipollone?
  Mr. Counsel CIPOLLONE. Mr. Chief Justice, Mr. Philbin will address 
the argument.
  The CHIEF JUSTICE. Mr. Philbin.
  Mr. Counsel PHILBIN. Mr. Chief Justice, Members of the Senate, I will 
be brief. This may seem like some deja vu all over again because we 
have been arguing about the same issues, really, over and over and over 
for a long time. I think something that Americans don't really 
understand about Washington is how could the House Democrats think that 
it is the best use of time for this body to spend an entire day 
deciding simply the issue of when this body should decide about whether 
or not there should be witnesses and documents subpoenaed? That is the 
issue before the body now. It is not the question, finally, of whether 
there should be witnesses or documents.
  As the majority leader has made clear multiple times, the underlying 
resolution simply allows that issue to be addressed a week from now. 
The only question at issue now--and the House managers keep saying: How 
can you have a trial without witnesses? How can you have a trial 
without documents? That is not even the issue. The only issue now is 
whether you have to decide that issue to subpoena documents or 
witnesses now or decide it in a week after you hear the presentations. 
Why are they so eager to have you buy a pig in a poke? Why is it 
necessary to make that decision without having more information?
  In the Clinton trial, this body agreed 100 to 0 that it made more 
sense to have more information and then decide how to proceed and that 
it was rational to have more information to hear the presentations and 
then decide what more was necessary. Why is it so important that you 
have to make that decision now without that information? That doesn't 
make any sense.
  The rational thing to do is to hear what sort of case they present 
and, importantly, to hear the President's defense because the President 
had no opportunity in the House to present any defense.
  We have heard a lot about the rule of law and about precedent. What 
was unprecedented was the process that was used in the House, a process 
that began with an impeachment inquiry that started without any vote by 
the House.
  This is the point I made earlier. The Constitution assigns the sole 
power of impeachment to the House, not to any single Member of the 
House. So the press conference that Speaker Pelosi held on September 24 
did not validly initiate an impeachment inquiry, nor did it validly 
give power to committees to issue subpoenas.
  We are talking now about the DOD documents. What efforts did they 
make in their proceeding to get these documents? They issued one 
invalid subpoena totally unauthorized under the Constitution. It was 
unprecedented because it was issued in an impeachment inquiry 
reportedly without any vote from the House. It had never happened 
before in our history in a Presidential impeachment. It was unlawful. 
It was unauthorized. That is why no documents were produced, and they 
made no other efforts to pursue that.
  We have heard a lot about the rule of law. The rule of law applies to 
House Democrats, as well, and they didn't abide by it. It was 
unprecedented to have a process in which the President had no 
opportunity to present his defense, no opportunity to present 
witnesses, no opportunity to be represented by counsel, and no 
opportunity to present evidence whatsoever in three rounds of hearings.
  They will mention: Oh, in the Judiciary Committee, they were willing 
to give the President rights. But in the Judiciary Committee, after one 
hearing, the Speaker announced the conclusion that articles were going 
to be drafted and the committee had already decided it would hear no 
fact witnesses. There were no rights for the President.
  So it makes sense, what is rational--what 100 Senators 21 years ago 
thought was rational was to hear the case that can be presented on the 
record established so far and then decide if something else needs to be 
done. Let the President make his case. We are ready to get this 
started. The House managers should be as well.
  Mr. Counsel CIPOLLONE. Mr. Chief Justice, we yield the balance of our 
time.
  The CHIEF JUSTICE. The House managers have 38 minutes remaining.
  Mr. Manager CROW. Mr. Chief Justice, I will be brief.
  Counsel for the President continues to say a lot of things that just 
really rubs me the wrong way. When he says: You know, we are talking 
and saying the same argument over and over and over again, well, I am 
ready to keep going because this is an important debate, and we need to 
have it now.
  He also said something about what the American people don't 
understand about Washington. Well, I haven't been here very long, but I 
can tell you that I don't think the American people care very much 
about whether or not people in Washington are sitting around debating 
all the time and thinking about what you are concerned about right now. 
What they are concerned about is whether or not their government is 
working for them and whether or not there is corruption in their 
government. That is what they understand, and that is what this debate 
is about.
  Counsel for the President said: Why now? Why the information now?
  The better question is: Why not now? This trial has started. Let's 
have the facts and information now.
  Ladies and gentlemen, the time is right. There is no reason why we

[[Page S416]]

shouldn't issue those subpoenas, get the facts, get the testimony, have 
the debate, and let the American people see what is really going on.
  Mr. Chief Justice, I yield the balance of my time to Mr. Schiff.
  The CHIEF JUSTICE. Thank you.
  Mr. Manager SCHIFF. Senators, I will be brief, but I do want to 
respond to a couple of points my colleagues have made.
  First is the argument that you heard before--and I have no doubt you 
will hear again--that the subpoenas issued by the House are invalid. 
Well, that is really wonderful. I imagine when you issue subpoenas, 
they will declare yours invalid as well.
  What is the basis of the claim that they are invalid? It is because 
they weren't issued the way the President wants.
  Part of the argument is that you have to issue the subpoenas the way 
we say, and that can only be done after there is a resolution that we 
approve of adopted by the full House. First, they complained there was 
no resolution, no formal resolution of the impeachment inquiry, and 
then when we passed the formal resolution, they complained about that. 
They complained when we didn't have one, and they complained when we 
did have one.
  They made that argument already in court, and they lost. In the 
McGahn case, they similarly argued that this subpoena for Mr. McGahn is 
invalid. Do you know what the judge said? The judge essentially said: 
That is nonsense.
  The President doesn't get to decide how the House conducts an 
impeachment proceeding. The President doesn't get to decide whether a 
subpoena at issue is valid or invalid. No, the House gets to decide 
because the House is given the sole power of impeachment, not the 
President of the United States.
  Counsel says: Why are we going through all of these documents? Aren't 
all of these motions the same? The fact is, we are not talking about 
the same documents here. They would like nothing better than for you to 
know nothing about the documents we seek. They don't want you to know 
what Defense Department documents they are withholding. Of course, they 
don't want you to hear that. They don't want you to know what State 
Department documents are there because if it is just abstract, if it is 
just your argument for documents, well, they can say: Well, that is 
really not that important, right? It is just some generic thing.
  But when you learn, as you have learned today and tonight, what those 
documents are, when you have seen the efforts to conceal those Freedom 
of Information Act emails that my colleague Mr. Crow just referred to, 
and when you see what was released to the public, and it is all 
redacted, and we find out what is under those redactions, wow, 
surprise. It is incriminating information they have redacted out. That 
is not supposed to be the basis for redaction under the Freedom of 
Information Act. That is what we call a coverup.
  They don't want you to see that today. They don't want you to see the 
before and the after, the redacted and the nonredacted. They don't want 
you to hear from these witnesses about the detailed personal notes they 
took. Ambassador Taylor took detailed personal notes.
  They want to try to contest what Ambassador Sondland said about his 
conversations with the President because Sondland, after he talked with 
the President, talked directly with Ambassador Taylor and talked 
directly with Mr. Morrison and explained his conversation to the 
President. Guess what. Mr. Morrison and Ambassador Taylor took detailed 
notes. If there is a dispute about what the President told Mr. 
Sondland, wouldn't you like to see the notes? They don't want you to 
know the notes exist.
  They don't want to have this debate. They would rather just argue: 
No, it is just about the documents. It is just about when. We want the 
Senators to have their 16 hours of questions before they can see any of 
this stuff. And do you know what? Then we are going to move to dismiss 
the case. As I said earlier, the ``when'' means never.
  Finally, the Clinton precedent. President Clinton turned over 90,000 
pages of documents before the trial. I agree. Let's follow the Clinton 
precedent. It is not going to take 90,000 documents. The documents are 
already collected.
  You heard the testimony on the screen of Ambassador Taylor saying: 
Oh, they are going to turn them over shortly. But we are still waiting. 
They are still sitting there at the State Department.
  We even played a video for you of Secretary Esper on one of the 
Sunday shows saying, we are going to comply with these subpoenas.
  That was one week. Then somebody got to him and all of a sudden he 
was singing a different tune.
  They don't want you to know what these documents hold. And, yes, we 
are showing you what these witnesses can tell you. We are showing you 
what Mulvaney can tell you. And, yes, we are making it hard for you. We 
are making it hard for you to say no. We are making it hard for you to 
say: I don't want to hear from these people. I don't want to see these 
documents.
  We are making it hard. It is not our job to make it easy for you. It 
is our job to make it hard to deprive the American people of a fair 
trial, and that is why we are taking the time to do it.
  I yield back.
  The CHIEF JUSTICE. The majority leader is recognized.


                            Motion to Table

  Mr. McCONNELL. Mr. Chief Justice, I make a motion to table the 
amendment, and I ask for the yeas and nays.
  The CHIEF JUSTICE. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The senior assistant legislative clerk called the roll.
  The CHIEF JUSTICE. Are there any Senators in the Chamber who wish to 
change his or her vote?
  The result was announced--yeas 53, nays 47, as follows:

                         [Rollcall Vote No. 19]

                                YEAS--53

     Alexander
     Barrasso
     Blackburn
     Blunt
     Boozman
     Braun
     Burr
     Capito
     Cassidy
     Collins
     Cornyn
     Cotton
     Cramer
     Crapo
     Cruz
     Daines
     Enzi
     Ernst
     Fischer
     Gardner
     Graham
     Grassley
     Hawley
     Hoeven
     Hyde-Smith
     Inhofe
     Johnson
     Kennedy
     Lankford
     Lee
     Loeffler
     McConnell
     McSally
     Moran
     Murkowski
     Paul
     Perdue
     Portman
     Risch
     Roberts
     Romney
     Rounds
     Rubio
     Sasse
     Scott (FL)
     Scott (SC)
     Shelby
     Sullivan
     Thune
     Tillis
     Toomey
     Wicker
     Young

                                NAYS--47

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Cortez Masto
     Duckworth
     Durbin
     Feinstein
     Gillibrand
     Harris
     Hassan
     Heinrich
     Hirono
     Jones
     Kaine
     King
     Klobuchar
     Leahy
     Manchin
     Markey
     Menendez
     Merkley
     Murphy
     Murray
     Peters
     Reed
     Rosen
     Sanders
     Schatz
     Schumer
     Shaheen
     Sinema
     Smith
     Stabenow
     Tester
     Udall
     Van Hollen
     Warner
     Warren
     Whitehouse
     Wyden
  The motion to table is agreed to; the amendment is tabled.
  Mr. SCHUMER. Mr. Chief Justice.
  The CHIEF JUSTICE. The Democratic leader is recognized.


                           Amendment No. 1289

  Mr. SCHUMER. Mr. Chief Justice, I send an amendment to the desk to 
issue subpoenas to Robert B. Blair and Michael P. Duffey, and I ask 
that it be read.
  The CHIEF JUSTICE. The clerk will report the amendment.
  The senior assistant legislative clerk read as follows:
       The Senator from New York [Mr. Schumer] proposes an 
     amendment numbered 1289.

       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--
       (A) issue a subpoena for the taking of testimony of Robert 
     B. Blair; and
       (B) issue a subpoena for the taking of testimony of Michael 
     P. Duffey; and
       (2) the Sergeant at Arms is authorized to utilize the 
     services of the Deputy Sergeant at Arms or any other employee 
     of the Senate in serving the subpoena authorized to be issued 
     by this section.

  The CHIEF JUSTICE. The amendment is arguable by the parties for 2 
hours, equally divided.
  Mr. Manager Schiff, are you a proponent or opponent?

[[Page S417]]

  

  Mr. Manager SCHIFF. Mr. Chief Justice, we are a proponent.
  The CHIEF JUSTICE. Mr. Cipollone?
  Mr. Counsel CIPOLLONE. Mr. Chief Justice, we are an opponent.
  The CHIEF JUSTICE. Mr. Schiff and the House managers will proceed and 
reserve time for rebuttal.
  Ms. Manager GARCIA of Texas. Mr. Chief Justice, Senators, counsel for 
the President, my name is Sylvia Garcia, and I am a Congresswoman from 
Texas in the Houston region.
  I have been sitting for some time, as well as you, and it brought to 
mind the many years I spent as a judge, just as all of you today are 
judges in this hearing.
  It is important that I say a few words before I start our argument 
for this amendment because, in the scheme of things, it is really not 
that very complicated. The American people, everyday Americans, know 
what a trial looks like, whether they have seen it on ``Perry Mason'' 
or ``Law & Order,'' or maybe they have been in court themselves. They 
know what a trial is. It is about making sure that people have an 
opportunity to be heard--both sides. It is about witnesses. It is about 
documents. It is about getting a fair shot.
  That is all we are asking for today, is to make sure we give the 
American people the trial they expect, to make sure the American people 
know that this President needs to be held accountable, because if it 
were they who were accused or alleged to have done something, they 
would want the same thing.
  So, for me, it is about making sure we get a fair trial, which is why 
I am here representing the House managers to strongly support this 
amendment to subpoena Robert Blair and Michael Duffey. Blair and Duffey 
are the two officials who carried out President Trump's order to freeze 
vital military aid to Ukraine. Their testimony would shed light on 
central facts the House uncovered in our impeachment inquiry. Their 
testimony will further affirm that President Trump had no legitimate 
policy reason for the order.
  Blair works in the White House as a senior adviser to the Acting 
Chief of Staff, Mick Mulvaney. Duffey is a political appointee. He 
works in the Office of Management and Budget. There, he serves as the 
Associate Director for National Security Programs. Both were subpoenaed 
by the House investigative committees. Both were ordered not to appear, 
so both failed to appear for the scheduled depositions despite repeated 
outreach and despite their legal subpoenas to comply.
  Blair and Duffey are not household names. Many Americans have never 
heard of them. But they operated the machinery of the executive branch. 
They implemented President Trump's instruction to freeze military aid 
to Ukraine. They communicated about the freeze with each other, with 
Mulvaney, with OMB's Acting Director, Russell Vought, and with numerous 
officials of the State Department and the Department of Defense. They 
stood at the center of this tangled web.
  Some of their communications are known to us from the testimony of 
other witnesses before House committees. Other communications have been 
revealed through public reporting and the Freedom of Information Act 
releases. But these communications only partly penetrate the secrecy in 
which President Trump sought to cloak his instruction to freeze 
military aid to a vulnerable strategic partner. As plentiful evidence 
confirms, officials throughout the government were stumped--literally 
stumped--about why the freeze was happening. They were thwarted when 
they tried to get explanations from Blair and Duffey. Consistent with 
President Trump's effort to hide all evidence, Blair and Duffey have 
defied the House's subpoenas at the President's direction.
  To explain why this amendment should be passed, I would like to walk 
you through some key events in which Blair and Duffey participated.
  To start, Blair and Duffey were directly involved in the initial 
stages of President Trump's freeze of the military aid.
  On June 18, the Department of Defense issued a statement that it 
would be providing its $250 million portion of the assistance to 
Ukraine and that Ukraine had met all the required preconditions for 
receiving the money. The very next day, on June 19, Blair, in his role 
as assistant to the President, called Vought, the Acting Director of 
OMB. The call was to talk about the military aid to Ukraine. According 
to public reports, Blair told Vought: ``We need to hold it up.''
  That same day, Duffey, who reports to Vought, emailed Deputy Under 
Secretary of Defense Elaine McCusker about the military aid. Although 
the administration refused to produce that email to the House--and all 
other documents--a copy of that email was recently produced in response 
to a Freedom of Information Act lawsuit. In the email, Duffey informed 
DOD that ``the President has asked about this funding release.''
  Duffey copied Mark Sandy, a career official who reports to him and 
who testified before the House about this email. Sandy testified that 
McCusker provided the requested information to him, which he shared 
with Duffey.
  These communications raised many questions about Blair and Duffey, 
and they are in the best position to provide answers. For example, who 
or what prompted Blair to tell Vought that OMB needed to freeze the 
aid? Who? What reason was Blair given? Who instructed Duffey to reach 
out to the Department of Defense? Who told him the President had 
questions, and what were those questions? Did Duffey and Blair have 
communications about the military aid to Ukraine with the President? 
with Acting Chief of Staff Mick Mulvaney? between themselves? What 
about the funding release and the President's so-called questions? 
Blair and Duffey could provide the answers. They could explain what 
directions they received, when they were provided, and who provided 
them. The American people deserve to know these facts.
  The next significant event in our timeline happened at the end of 
June. On June 27, Blair got an email from his boss, Mulvaney. Mulvaney 
was on Air Force One with President Trump. According to public reports, 
Mulvaney asked Blair: ``Did we ever find out about the money for 
Ukraine and whether we can hold it back?'' Blair responded it would be 
possible, but he said they should ``expect Congress to become 
unhinged.''
  When did Mulvaney and Blair first discuss the President's freeze on 
military aid? Was there further discussion about the issue in this 
email? Did Mulvaney explain why it was so important to freeze the 
money, even if it would cause Congress ``becoming unhinged''? Did they 
discuss why Congress would have such a strong reaction and whether it 
would be justified? Did Blair raise any objections to this seemingly 
unexplained decision to freeze the funds? The Senate could obtain these 
answers by hearing from these witnesses directly.

  Now let's move on to the implementation of the freeze. Despite 
Blair's warning about how Congress would react, President Trump ordered 
a freeze on military aid to Ukraine in July. Blair and Duffey were 
directly involved in executing the President's order. To be clear, 
decisions remain shrouded in secrecy, but key actions have been 
revealed.
  On July 3, the State Department told various officials that OMB was 
blocking it from spending its $141 million portion of the aid. More 
specifically, OMB directed the State Department not to send a 
notification to Congress about spending the aid. Without that 
notification, the aid was effectively frozen.
  Who from OMB ordered the State Department not to send its 
congressional notification? Did they give a reason? We just don't know. 
Remember, at President Trump's instruction, OMB and the State 
Department refused to produce a single document to the House, but the 
direction almost certainly came from Duffey or one of his subordinates, 
acting on behalf of President Trump.
  We also know that on July 12, Blair sent an email to Duffey. Duffey's 
subordinate, Mark Sandy, saw the email and described it in his 
testimony before the House. As Sandy testified, it was Blair who 
conveyed that ``the President is directing a hold on military support 
funding for Ukraine.'' And that email only addressed Ukraine.
  Blair's email raises several questions. What other discussions took 
place about the President's decision to freeze

[[Page S418]]

the aid? Did the President or Mulvaney give Blair a reason for the 
freeze? Did Blair know that the President was holding the aid to 
pressure Ukraine to announce investigations of his political rival?
  We also know that 2 days before Blair sent his email to Duffey, 
Ambassador Sondland told Ukrainian officials that he had a deal with 
Mulvaney. The deal consisted of a White House visit for President 
Zelensky on Ukraine conducting the political investigations that 
President Trump sought. That is what prompted Ambassador Bolton to say 
he was ``not part of whatever drug deal Sondland and Mulvaney are 
cooking up.''
  Blair is Mulvaney's senior adviser. Did Blair know about the 
Sondland/Mulvaney deal? Did he know that they were leveraging an 
official White House visit for the President to get Ukraine to 
investigate his political rival? The White House was unable to provide 
any reason for the hold.
  Throughout this period, officials across the executive branch started 
asking questions--questions about the freeze on the military aid. 
Around July 17 or 18, Duffey emailed Blair. He asked about the reason 
for the freeze, but he got no explanation. Instead, Blair insisted: We 
need to let the hold take place and they could revisit the issue with 
the President later.
  In the House, we heard testimony from multiple officials, including 
Ambassador Taylor, who was until very recently our top diplomat in 
Ukraine, our numero uno. We also heard from several other officials 
from the Department of Defense, the NSC staff, and OMB, but no one--no 
one--heard any credible evidence, any credible explanation for the 
freeze at the time. No one. Nada. Senators, think about it. Not even 
our top U.S. diplomat to Ukraine had any idea as to why the President 
had ordered the funds frozen. That is shocking. That should worry every 
single one of us here.
  Here are some of those witnesses. They are up on the slide. Again, no 
one tells why--why this decision was made so secretly and without any 
explanation. Why was the President compromising the safety of his 
strategic ally in the region? Why was he harming our national security 
interests in the process?
  On July 26, Duffey attended a meeting of high-level executive branch 
officials. Duffey made clear that the freeze on military aid was based 
on President Trump's express direction.
  But, apparently, he could not clearly explain whether it was a freeze 
beyond a vague reference to concerns about corruption.
  Witnesses who testified before the House all provided the same 
consistent recounting of what happened. As you can see from the 
statements on the slide, officials were not provided a clear 
explanation for such a dramatic step.
  As we have already discussed earlier and will explain in more depth 
during the trial, these facts contradict the White House's recent 
claims of why President Trump froze the Ukraine aid. Those facts 
clearly show efforts by this President and those around him to 
fabricate explanations after the President's illegal scheme came to 
light.
  In fact, the White House Counsel's own review of the freeze 
reportedly found that Mulvaney and OMB attempted to create an after-
the-fact justification for the President's decision. That is a polite 
way of saying Mulvaney's team led an effort to cover up the President's 
conduct and to manufacture misleading pretextual explanations to hide 
the corruption.
  Senators, there is still more. Blair and Duffey were also involved in 
the events surrounding President's July 25 phone call with President 
Zelensky. On July 19, Blair, along with other officials, received an 
email from Ambassador Sondland. The email described a conversation he 
had just had with President Zelensky. Ambassador Sondland stated that 
Zelensky was ``prepared to receive POTUS' call,'' and ``will assure him 
that he intends to run a fully transparent investigation'' and will 
``turn over every stone.''
  As reflected in this email and confirmed by his testimony, Ambassador 
Sondland had helped President Zelensky prepare for his July 25 phone 
call with President Trump, telling him it was necessary to assure 
President Trump that he would conduct the investigations. Ambassador 
Sondland then reported back to Blair and others that President Zelensky 
was prepared to do just that.
  Blair knew the plan. As Ambassador Sondland put it, he was in the 
loop on the scheme.
  Why was Blair part of this group? What was his involvement in setting 
up the call? What did he understand Sondland's message to mean? What 
did he know about the investigations sought by the President? Did he 
have any conversations with the President or Mulvaney about the 
President's request for the investigations? We need Blair's testimony 
to answer these questions.
  And then, 6 days later, Blair was in the Situation Room, listening 
in--listening in--on President Trump's July 25 call with President 
Zelensky. He heard President Zelensky raise the issue of U.S. aid to 
Ukraine. He heard President Trump respond but asked him for ``a favor, 
though''--namely, investigations of the 2016 election and of Vice 
President Biden.
  The House heard the testimony of three of the other officials who 
listened into the President's July 25 call--directly listened in. 
Lieutenant Colonel Vindman, Tim Morrison, and Jennifer Williams--each 
of them expressed concerns about the call. Lieutenant Colonel Vindman 
and Tim Morrison immediately reported the call to NSC lawyers. Jennifer 
Williams said the call ``struck her as unusual and inappropriate,'' and 
further, ``more political in nature.''
  Senators, the American people deserve to hear if Blair shared the 
concerns of the other officials who listened to the President's call. 
What was his reaction to the call? Did he take notes? Was he at all 
concerned like the other officials? Did he know exactly what was 
happening and why? Did the evidence we have suggest he did know? But 
the Senate should have the opportunity to ask him directly.
  Just 90 minutes after that July 25 call, Blair's contact at OMB, 
Michael Duffey, sent officials of the Department of Defense an email to 
make sure that DOD continued to freeze the military aid that Ukraine so 
desperately needed. This email, like all others, was not produced to 
the House. However, it was produced pursuant to court order in a 
Freedom of Information Act lawsuit.
  As the email reflects, Duffey told the DOD officials that based on 
the guidance he had received, they should ``hold off any additional DOD 
obligations of these funds.''
  Duffey added that the request was sensitive and that they should keep 
this information closely held. This email, too, raises questions that 
Duffey should answer. What exactly was the guidance Duffey received? 
Who gave it to him? Was it connected to President Trump's phone call? 
And why was it so sensitive that he directed DOD to keep it closely 
held? The Senate should demand the answers to these questions.
  The Senate should also hear from Duffey as to why he abruptly removed 
a career OMB official who questioned the freeze on military aid to 
Ukraine and whether he did so at the direction of the White House or 
President Trump. Throughout July, Mark Sandy, the OMB career official 
who handled military aid to Ukraine, repeatedly tried to get Duffey to 
provide an explanation for the freeze. He was unsuccessful.
  Sandy and other officials from OMB and the Pentagon also raised 
questions about the freeze violating the Empowerment Control Act, the 
Federal law that limits the President's ability to withhold funds that 
have been allocated by Congress.
  In fact, two career OMB officials ultimately resigned, in part, based 
on concerns about the handling of the Ukraine military aid freeze. 
These concerns were not unfounded.
  Just last week, the nonpartisan Government Accountability Office 
issued a detailed legal opinion finding that OMB had violated Federal 
law by executing the President's order to freeze military aid to 
Ukraine. Remarkably, on July 29, after Sandy had expressed his concerns 
about the legality of the freeze, Duffey removed Sandy from 
responsibility for Ukraine military aid. Instead, Duffey took over 
responsibility for withholding the aid himself. He was a political 
appointee. He had no relevant experience. He had no demonstration of 
interest in such matters. His last job had been as a State-level 
Republican Party official.

[[Page S419]]

  He is the one who took over responsibility for withholding the aid? 
He gave no credible explanation for his decision. He only said that he 
wanted to become ``more involved in daily operations.''
  Sandy, who has decades of experience, testified that nothing like 
this had ever happened in his career. His boss, a political appointee, 
just happened to have a sudden interest in being more hands-on and was 
now laser-focused exclusively on Ukraine.
  The Senate should ask Duffey why he took over the handling of the 
Ukraine military aid. Was he directed to? Why was Sandy removed from 
his responsibility over Ukraine aid? Was it because he expressed 
concerns about the legality of the freeze?
  These questions are those that Duffey would be able to answer.
  Now we move on to warnings from DOD. Around this period, in late July 
and early August, Duffey also ignored warnings from DOD about the 
legality of the freeze. The Senate should hear from him and judge what 
he has to say. Throughout July and August, Duffey executed President 
Trump's freeze of the military aid through a series of funding 
documents from OMB.
  In carefully worded footnotes, OMB tried to claim that this ``was a 
brief pause and it would not affect DOD's ability to spend the money on 
time.''
  As we now know from public reporting, as a freeze continued, DOD 
officials grew more and more alarmed. They knew the freeze would impact 
DOD's ability to spend the funds before the end of the fiscal year. DOD 
officials, including Deputy Under Secretary McCusker, voiced these 
concerns to Duffey on multiple occasions.
  First, in an email on August 9, McCusker told Duffey DOD could no 
longer support OMB's claim that the freeze would not preclude timely 
execution of the aid for Ukraine. Her email read:

       As we discussed, as of 12 August, I don't think we can 
     agree that the pause will not preclude timely execution. We 
     hope it won't, and we will do all we can to execute once the 
     policy decision is made but can no longer make that 
     declarative statement.

  Then, again, on August 12, McCusker warned Duffey in an email: The 
footnotes needed to include a caveat that ``execution risk increases 
continued delays.''
  The House never received these documents from OMB or DOD. We know 
what they contain because of public reporting, despite persistent 
efforts by the Trump administration to keep them from Congress and the 
public.
  The Pentagon's alarm should have raised concerns for Duffey. Did he 
share DOD's concerns with anyone else? Did he agree with those concerns 
or take any actions in response? Did he take direction from Blair, the 
White House, or President Trump? These are questions that Duffey should 
answer.
  Despite his actions executing the President's freeze, Duffey 
internally expressed reservations about it. In August, he signed off on 
a memorandum to Acting Director Vought that recommended releasing the 
aid. That memo stated that the military aid was consistent with the 
United States' national security strategy in the region, that it served 
to counter Russian aggression, and that the aid was rooted in 
bipartisan support in Congress. This is contrary to Duffey's actions 
leading up to the memo. What changed? What caused Duffey to disagree 
with the President's direction to continue to withhold the aid? Duffey 
should be called to explain why he recommended that the President 
release the aid, what other steps he took to advocate for the 
release. Does he know why Vought and the White House apparently 
disregarded the recommendation?

  Based on public reporting, we know, after the press reported the 
freeze in late August, OMB circulated talking points falsely claiming 
``no action has been taken by OMB that would preclude the obligation of 
these funds before the end of the fiscal year.''
  According to public reporting, McCusker responded with an email to 
Duffey to tell him that this was ``just not accurate'' and that DOD had 
been ``consistently conveying'' that for weeks. Due to the public 
release of these emails and recent reporting, we also know that Duffey 
emailed McCusker on August 30 and told her there was a ``clear 
direction from POTUS'' to continue the freeze.
  McCusker continued to warn that the freeze was having real effects on 
DOD's ability to spend the military aid, and the impact would keep 
growing if the freeze continued. According to recent reports, around 
September 9, after the President's scheme had been exposed and the 
House had launched its investigations, Duffey responded to McCusker's 
warnings with a formal and lengthy email. He asserted it would be DOD's 
fault, not OMB's, if DOD was unable to spend funds in time. Deputy 
Under Secretary of Defense Elaine McCusker reportedly responded: ``I am 
speechless.''
  We now know that DOD's concerns were well-founded. The President's 
freeze on the security aid was illegal. Duffey should be called to 
testify about why DOD's repeated warnings went unheeded. What prompted 
his email that attempted to shift blame to DOD about the fact that the 
President released the aid only after his scheme was exposed?
  Senators, make no mistake. We have a detailed factual record showing 
the freeze was President Trump's decision and that he did it to 
pressure Ukraine to announce the political investigations he wanted.
  But President Trump's decisions also set off a cascade of confusion 
and misdirection within the executive branch. As the President's 
political appointees carried out his orders, career officials tried to 
do their jobs--or, at the very least, not break the law. Blair and 
Duffey would help shed more light on how the President's orders were 
carried out. That is why committees of the House issued subpoenas for 
both of their testimony, but Blair and Duffey, as I said earlier, like 
many other Trump officials, refused to appear because the President 
ordered them not to appear. I might add, as a former judge, I have 
never seen anything like this before, where someone is ordered not to 
appear by one party and the witnesses just don't appear.
  The Senate should not allow the President and his administration to 
continue to evade accountability based on these ever-shifting and ever-
meritless excuses. We need to hold him accountable because no one is 
above the law.
  (English translation of statement made in Spanish is as follows:)
  No one is above the law.
  Blair and Duffey have valuable testimony to offer. The Senate should 
call upon them to do their duty by issuing this subpoena.
  Mr. Chief Justice, the House managers reserve the balance of our time 
for an opportunity to respond to the President's argument.
  The CHIEF JUSTICE. Mr. Cipollone.
  Mr. Counsel CIPOLLONE. Mr. Chief Justice, Pam Bondi, Special Advisor 
to the President, former attorney general of Florida.
  The CHIEF JUSTICE. Ms. Bondi.
  Ms. Counsel BONDI. Honorable Senators, just to fact-correct, please, 
a few things. Mr. Duffey didn't come from a State job. Mr. Duffey came 
from Deputy Chief of Staff at DOD before he went to OMB. There is a big 
difference there.
  Manager Garcia said he failed to appear. Well, the House committee 
would not allow agency counsel to appear with Mr. Duffey or Mr. Blair. 
They would not let agency counsel appear with either of them.
  Office of Legal Counsel determined, of course, that the exclusion of 
agency counsel from House proceedings is unconstitutional. It is a 
pretty basic right. So what did they do? They took no action on the 
subpoenas, but now they want you to take action on them.
  What the House managers have been telling you all day is that the 
White House is trying to hide from American people what witnesses had 
to say. They have been saying we want to bury evidence; we want to hide 
evidence. That hypocrisy is astounding. They have been saying: Let's 
not forget why we are here.
  Well, we are here tonight because they threw due process, fundamental 
fairness, and our Constitution out the window in the House proceedings. 
That is why we are here--because they started in the secret bunker 
hearings where the President and his counsel weren't even allowed to 
participate when they were trying to impeach him.
  Intel and Judiciary Committee was a one-sided circus. Ranking Member

[[Page S420]]

Nunes asked to call witnesses. He explained why in detail. It was 
denied by Manager Schiff. Ranking Member Collins asked to call 
witnesses, which was denied by Manager Nadler. And that is what they 
call fairness? That is not how our American justice system works, and 
it is certainly not how our impeachment process is designed by our 
Constitution.
  The House took no action on the subpoenas issued to Mr. Duffey and 
Mr. Blair because they didn't want a court to tell them that they were 
trampling on their constitutional rights. Now they want this Chamber to 
do it for them.
  Mr. Counsel CIPOLLONE. Mr. Chief Justice, we yield the remainder of 
our time.
  The CHIEF JUSTICE. House managers have 24 minutes remaining.
  Mr. Manager SCHIFF. Mr. Chief Justice, a couple of fact checks, once 
again.
  First of all, the complaint is made that, well, the House wouldn't 
allow agency counsel. Why wouldn't the House allow agency counsel to be 
present in those secret depositions that you have been hearing so much 
about? As I mentioned earlier, those secret depositions allowed 100 
Members of the House to participate. There are 100 Members of the 
Senate. We could have had that secret deposition right here on the 
Senate floor. During those depositions, Members of both parties were 
given equal time to ask questions of these witnesses.
  By the way, where did Democrats get that rule of no agency counsel 
during these depositions? We got it from the Republicans. This was the 
Republican deposition rule, and we can cite you adamant explanations by 
Trey Gowdy and others about how these rules are so important that the 
depositions not be public, that agency counsel be excluded.
  And why? Well, you get a good sense of it when you see the testimony 
of Deputy Assistant Secretary George Kent. Kent describes how he is at 
a meeting with some of the State Department lawyers and others, and 
they are talking about the document request from Congress and what are 
they going to do about these and what documents are responsive and what 
documents aren't responsive. The issue comes up in a letter the State 
Department sent to Congress saying: You are intimidating the witnesses. 
Secretary Kent testified: No, no, no. The Congress wasn't intimidating 
witnesses; it was the State Department that was intimidating witnesses 
to try to prevent them from testifying.
  My colleagues at the other table say: Why aren't you allowing the 
Members from the State Department to sit next to those witnesses and 
hear what they have to say in the depositions? We have seen all too 
much witness intimidation in this investigation, to begin with, without 
having an agency minder sitting in on the deposition.
  By the way, those agency minders don't get to sit in on grand jury 
interviews either. There is a very good investigative reason that has 
been used by Republicans and Democrats who have been adamant about the 
policy of excluding agency counsel.
  It was also represented that the Intelligence Committee and the 
Judiciary Committee wouldn't allow the minority to call any witnesses. 
That is just not true. In fact, fully one-third of the witnesses who 
appeared in open hearing in our committee were minority-chosen 
witnesses. What they ended up having to say was pretty darn 
incriminating of the President, but, nonetheless, they chose them.
  So about this idea that, well, we had no due process, the fact of the 
matter is, we followed the procedures in the Clinton and Nixon 
impeachments. They can continue to say we didn't, but we did. In some 
respects, we gave even greater due process opportunities here than 
there. The fact that the President would take no advantage of them 
doesn't change the fact that they had that opportunity.
  Finally, the claim is made that we trampled on the constitutional 
rights by daring to subpoena these witnesses. How dare we subpoena 
administration officials--right?--because Congress never does that. How 
dare we do that. How dare we subpoena them. Well, the court heard that 
argument in the case of Don McGahn, and you should read the judge's 
opinion in finding that this claim of absolute immunity has no support, 
no substance; it would have resulted in a monarchy. It is essentially 
the judicial equivalent of: Don't let the door hit you in the backside 
on the way out, Counsel. There is no merit there.
  Counsel can repeat that argument as often as they like, but there is 
no support in the courts for it. There should be no support for it in 
this body, not if you want any of your subpoenas in the future to mean 
anything at all.
  I yield back.
  The CHIEF JUSTICE. The majority leader is recognized.


                            Motion To Table

  Mr. McCONNELL. Mr. Chief Justice, I have a motion at the desk to 
table the amendment.
  I ask for the yeas and nays.
  The CHIEF JUSTICE. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  The CHIEF JUSTICE. Are there any other Senators in the Chamber 
wishing to vote or change their vote?
  The result was announced--yeas 53, nays 47, as follows:

                         [Rollcall Vote No. 20]

                                YEAS--53

     Alexander
     Barrasso
     Blackburn
     Blunt
     Boozman
     Braun
     Burr
     Capito
     Cassidy
     Collins
     Cornyn
     Cotton
     Cramer
     Crapo
     Cruz
     Daines
     Enzi
     Ernst
     Fischer
     Gardner
     Graham
     Grassley
     Hawley
     Hoeven
     Hyde-Smith
     Inhofe
     Johnson
     Kennedy
     Lankford
     Lee
     Loeffler
     McConnell
     McSally
     Moran
     Murkowski
     Paul
     Perdue
     Portman
     Risch
     Roberts
     Romney
     Rounds
     Rubio
     Sasse
     Scott (FL)
     Scott (SC)
     Shelby
     Sullivan
     Thune
     Tillis
     Toomey
     Wicker
     Young

                                NAYS--47

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Cortez Masto
     Duckworth
     Durbin
     Feinstein
     Gillibrand
     Harris
     Hassan
     Heinrich
     Hirono
     Jones
     Kaine
     King
     Klobuchar
     Leahy
     Manchin
     Markey
     Menendez
     Merkley
     Murphy
     Murray
     Peters
     Reed
     Rosen
     Sanders
     Schatz
     Schumer
     Shaheen
     Sinema
     Smith
     Stabenow
     Tester
     Udall
     Van Hollen
     Warner
     Warren
     Whitehouse
     Wyden
  The motion to table was agreed to; the amendment is tabled.
  The CHIEF JUSTICE. The Democratic leader is recognized.


                           Amendment No. 1290

  Mr. SCHUMER. Mr. Chief Justice, I send an amendment to the desk to 
prevent the selective admission of evidence and provide for the 
appropriate handling of classified and confidential materials, and I 
ask that it be read. It is short.
  The CHIEF JUSTICE. The clerk will read the amendment.
  The legislative clerk read as follows:

       The Senator from New York [Mr. Schumer] proposes an 
     amendment numbered 1290.

       On page 2, between lines 4 and 5, insert the following:
       If, during the impeachment trial of Donald John Trump, any 
     party seeks to admit evidence that has not been submitted as 
     part of the record of the House of Representatives and that 
     was subject to a duly authorized subpoena, that party shall 
     also provide the opposing party all other documents 
     responsive to that subpoena. For the purposes of this 
     paragraph, the term ``duly authorized subpoena'' includes any 
     subpoena issued pursuant to the impeachment inquiry of the 
     House of Representatives.
       The Senate shall take all necessary measures to ensure the 
     proper handling of confidential and classified information in 
     the record.

  The CHIEF JUSTICE. The majority leader is recognized.
  Mr. McCONNELL. Let's take a 5-minute break. I ask everybody to stay 
close to the Chamber. We will go with a hard 5 minutes.

                          ____________________