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

RECESS SUBJECT TO THE CALL OF THE CHAIR; Congressional Record Vol. 166, No. 12
(Senate - January 21, 2020)

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[Pages S420-S431]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

RECESS SUBJECT TO THE CALL OF THE CHAIR

Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent that the
Senate stand in recess subject to the call of the Chair.
There being no objection, the Senate, at 11:19 p.m., recessed until
11:39 p.m. and reassembled when called to order by the Chief Justice.
The CHIEF JUSTICE. Mr. Schiff, are you in favor or opposed?

[[Page S421]]

Mr. Manager SCHIFF. In favor.
The CHIEF JUSTICE. Mr. Cipollone.
Mr. Counselor CIPOLLONE. Mr. Chief Justice, we are opposed.
The CHIEF JUSTICE. There are 2 hours for argument, equally divided.
Mr. Schiff, you may proceed first.
Mr. Manager SCHIFF. Senators, the majority leader amended his
resolution earlier today to allow the admission of the House record
into evidence, though the resolution leaves the record subject to
objections.
But there is a gaping hole--another gaping hole--in the resolution.
The resolution would allow the President to cherry-pick documents he
has refused to produce to the House and attempt to admit them into
evidence here.
That would enable the President to use his obstruction not only as a
shield to his misconduct but also as a sword in his defense. That would
be patently unfair and wholly improper. It must not be permitted, and
that is what the Schumer amendment addresses.
The amendment addresses that issue by providing that if any party
seeks to admit, for the first time here, information that was
previously subject to subpoena, that party must do a simple and fair
thing; it must provide the opposing party all of the other documents
responsive to the subpoena. That is how the law works in America. It is
called the rule of completeness.
When the selective introduction of evidence distorts facts or sows
confusion in a trial, there is a solution. It is to ensure that
documents that provide for a complete picture can be introduced to
avert such distortions and confusion.
The rule of completeness is rooted in the commonsense evidentiary
principle that a fair trial does not permit the parties to selectively
introduce evidence in a way that would mislead factfinders. The
Senators should embrace it as a rule for this trial, and the amendment
does just that.
This amendment does not in any way limit the evidence the President
may introduce during his trial. He should be able to defend himself
against the charges against him as every defendant has the right to do
around the country. But this amendment does make sure that he does it
in a fair way and that his obstruction cannot be used as a weapon.
It is an amendment based on simple fairness, and it will help the
Senate and the American people get to the truth.
House managers are not afraid of the evidence, whatever it may be. We
want an open process designed to get to the truth, no matter whether it
helps or hurts our case. That is what the Senate should want, and that
is what the American people certainly want.
This amendment helps that process of getting more evidence so we can
get to the truth, and we urge you to vote for it.
The amendment also addresses another omission in the majority
leader's resolution by providing for the proper handling of
confidential and classified information for the record. This amendment
seeks to balance the public's interest in transparency with the
importance of protecting limited, sensitive information bearing
directly on the case you are trying.
As for confidential information, some of the evidence in this case
includes records of phone calls. They establish important patterns of
conduct, as we explain in the Ukraine impeachment report.
But the original phone records, including a great deal more
information in context, should be available for this body to review if
needed in a confidential setting. It contains personally sensitive
information concerning individuals who are not at issue in this trial
and would potentially subject them to intrusions on their privacy.
The Secretary of the Senate has the capacity to handle such material
and make it available to you as needed.
The amendment allows the privacy interests of many individuals to be
protected, while allowing the Senators access to the full record.
As for the classified information that this amendment addresses,
there may be several very relevant classified documents.
Let me just highlight one in particular. It involves the testimony of
the Vice President's national security aide, Jennifer Williams, and it
concerns a conversation between the Vice President and the President of
Ukraine, and the House managers believe that it would be of value to
this body to see, in trying the case.
Let me start by saying that we have twice requested that the Vice
President declassify this document. We have reviewed it, and there is
no basis to keep it classified. The Vice President has not responded,
and we can only conclude this was an additional effort by the President
to conceal wrongdoing from the public. But as it stands now, it remains
classified. It must be handled like any other classified document by
this body in a method that would allow them.
Let me just take a moment to go further. The public should see that
supplemental testimony as well. That supplemental testimony--that
classified testimony--was added to the record by the Vice President's
aide because she believed, I think, on further reflection, that it
would shed additional light on what she has said publicly. You should
see it and you should evaluate it for what it has to say, but, what is
more, so should the American people.
So I would urge not only that you support this amendment to make sure
that you can handle the classified information, there is a mechanism
for it, and personal identifiable information need not be made public,
but also information that is improperly classified that bears or sheds
light on her decision should be accessible to you and should be
accessible to the American people.
I reserve the balance of our time.
The CHIEF JUSTICE. Mr. Cipollone.
Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice. Mr. Philbin and
Mr. Sekulow will argue.
The CHIEF JUSTICE. Mr. Philbin.
Mr. Counsel PHILBIN. Mr. Chief Justice and Members of the Senate, the
President opposes this amendment, and I can be brief in explaining why.
This amendment would say that any subpoena that was issued pursuant
to the House's impeachment inquiry--any subpoena that they issued at
all--becomes defined as a duly authorized subpoena for purposes of this
amendment. As we have explained several times today, because the House
began this inquiry without taking a vote, it never authorized any of
its committees to issue subpoenas pursuant to the impeachment power.
The first 23 subpoenas, at a minimum, that the House committees
issued were all unauthorized in ultra vires, and that is why the Trump
administration did not respond to them and did not comply with them.
That was explained in a letter of October 18, from White House Counsel
Cipollone to Chairman Schiff and others, that it is a legal infirmity
in those subpoenas.
There has never been an impeachment inquiry initiated by the House of
Representatives against a President of the United States without it
being authorized by a vote of the full House. This is a principle that
the Supreme Court has made clear in cases such as United States vs.
Rumely, that no committee of Congress can exercise authority assigned
by the Constitution to the Chamber itself, of the House or the Senate,
without being delegated that authority by the House or the Senate.
In Rumely, the Court explains that to determine the validity of a
subpoena requires ``construing the scope of the authority which the
House of Representatives gave to the committee.''
So this is a legal issue, an infirmity in those subpoenas, and this
amendment proposes to do away with that legal infirmity by defining all
their subpoenas as duly authorized, and we do not support that
amendment.
In addition to that, I just want to respond briefly to Chairman
Schiff's description of the rule of completeness. This is not about the
rule of completeness. The rule of completeness has to do with a
particular document or a particular piece of evidence which is
misleading in itself. With that document, if there is something
specific about it that there is another response on the email chain--
something like that--that particular document has some specific thing
attached to it, and then that should also come into evidence.
But since all the evidentiary motions are being preserved and
objections can be made later, evidentiary arguments under the
underlying resolution can be made. The rule of completeness can be
argued. There is no need for that to do this amendment, because this
amendment doesn't have anything to do with the rule of completeness.

[[Page S422]]

With that, I will yield the remainder of my time to Mr. Sekulow.
The CHIEF JUSTICE. Mr. Sekulow.
Mr. Counsel SEKULOW. Thank you, Mr. Chief Justice and Members of the
Senate. I will be brief. This amendment to the resolution we oppose, as
Mr. Philbin just said, because it is in essence an unconstitutional
attempt to cure a defect--a defect in their own proceeding.
To be clear, we are reserving our objections as it relates to
hearsay, which is what the record primarily consists of.
I also want to respond very briefly to what Manager Schiff said
regarding the proceedings in the House of Representatives and the lack
of agency counsel. He said it is much like the grand jury. He best be
glad and the Members of his committee best be glad that it is not like
a grand jury, because if it was a grand jury and information was
leaked, which it was consistently throughout this process, they could
be subject to felony.
So I want to be clear. Utilizing this amendment to cure a
constitutional defect--and that is what this is--is exactly what we
have been arguing about now for almost 11 hours. It is changing the
rules. It is different rules.
I can't determine if we are dealing with a trial, a pretrial motion--
but we have now have spent 11 hours arguing about something that we
will be arguing again next week.
But the idea that you can cure in three paragraphs constitutional
defects doesn't pass constitutional muster.
We yield the rest of our time.
The CHIEF JUSTICE. The House managers have 54 minutes remaining.
Mr. Manager SCHIFF. Well, first of all, the counsel makes the
argument once again that with subpoenas, the President gets to decide
which are valid and which are invalid, and any subpoena the President
doesn't like, he may simply declare invalid, and that is the end of the
story. Therefore, it is invalid, and no documents are required, and no
witnesses need to show up, and, therefore, you don't need to consider
whether the President should be able to game the system by showing you
a handful of documents to mislead you and deprive you of seeing all of
the other documents relevant to that same subject. That is their
argument. The President didn't like the way the subpoenas were issued,
even though the Court has already ruled on this issue and said: No, Mr.
President, you don't get to decide whether a subpoena is valid or not
in an impeachment proceeding. That is the sole responsibility of the
House.
But no, I guess they would suggest to you the President would never
mislead you about documents. If they seek to introduce something, you
can be assured that that document tells the complete truth.
But we already know you can place no such reliance on the President.
How do we know this? We have already seen it.
Look at what they did in response to the FOIA, or Freedom of
Information Act, requests. They blacked out all the incriminating
information. They blacked out the ``we can't represent any more that we
are going to be able to actually spend this money in time. We can't
represent that we are not going to be in violation of the law of the
Impoundment Act.'' They redact that.
Is that what you want in this trial, for them to be able to introduce
one part of an email chain and not show you the rest?
You want to be able to have a situation where the President has
withheld all these documents from you, can introduce a document that
suggests a benign explanation but not the reply that confirms the
corrupt explanation, because that is what we are really talking about
here.
Now they clothe this in the argument that, well, we don't think these
were duly authorized subpoenas. We are merely categorizing the universe
of documents they should turn over if they want to turnover selective
documents. Let them call them unduly authorized, therefore. The point
is, that the documents that should be turned over should not be cherry-
picked by a White House that has already shown such a deliberate intent
to deceive.
Finally, counsel says they can't tell whether we are dealing with a
trial here. Well, do you know something? Neither can we. If they are
confused, they are confused for a good reason, because this doesn't
look like any other trial that they are used to. People watching--they
are confused, too, because they would think if this was a trial, there
would be no debate about whether the party with the burden of proof
could call witnesses. Of course, they could. Of course, they can.
The defendant doesn't get to decide who the prosecution can call as a
witness. If you are confused, so is the public. They want this to look
like a regular trial, and it should. That has been the history of this
body. That has been the history of this body.
Now I know it is late, but I have to tell you it doesn't have to be
late. We don't control the schedule here. We are not deciding we want
to carry on through the evening. We don't get to decide the schedule.
There is a reason for why we are still here at 5 minutes to midnight.
There is a reason why we are here at 5 minutes to midnight, and that is
because they don't want the American people to see what is going on
here. They are hoping people are asleep. You know, a lot of people are
asleep right now, all over the country, because it is midnight.
Now, maybe in my State of California people are still awake and
watching, but is this really what we should be doing when we are
deciding the fate of a Presidency--that we should be doing this in the
midnight hour?
I started out the day asking whether there could be a fair trial and
expressing the skepticism I think the country feels about whether that
is possible, how much they want to believe this is possible. But I have
to say, watching now at midnight, this effort to hide this in the dead
of night cannot be encouraging to them about whether there will be a
fair trial.
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.
The CHIEF JUSTICE. The question is on agreeing to the motion.
Is there a sufficient second?
There is a sufficient second.
Mr. McCONNELL. I ask for the yeas and nays.
The CHIEF JUSTICE. The clerk will call the roll.
The legislative clerk called the roll.
The CHIEF JUSTICE. Does any Senator in the Chamber wish to change his
or her vote?

=========================== NOTE ===========================

On page S422, January 21, 2020, third column, the following
appears: The CHIEF JUSTICE. Does any Senator in the Chamber wish
to change his or vote?

The online Record has been corrected to read: The CHIEF JUSTICE.
Does any Senator in the Chamber wish to change his or her vote?

========================= END NOTE =========================

The result was announced--yeas 53, nays 47, as follows:

[Rollcall Vote No. 21 Leg.]

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

Amendment No. 1291

Mr. SCHUMER. Mr. Chief Justice, I send an amendment to the desk to
issue a subpoena to John Robert Bolton, and I ask that it be read.
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 1291.
At the appropriate place in the resolving clause, insert
the following:
Sec. ___. Notwithstanding any other provision of this
resolution, pursuant to

[[Page S423]]

rules V and VI of the Rules of Procedure and Practice in the
Senate When Sitting on Impeachment Trials, the Chief Justice
of the United States, through the Secretary of the Senate,
shall issue a subpoena for the taking of testimony of John
Robert Bolton, and 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 with 2
hours equally divided.
Mr. Manager Schiff, are you a proponent?
Mr. Manager SCHIFF. Yes, I am.
The CHIEF JUSTICE. Mr. Cipollone, are you an opponent?
Mr. Counsel CIPOLLONE. Yes, Mr. Chief Justice.
The CHIEF JUSTICE. Mr. Schiff, you may proceed, and you may reserve
time for rebuttal.
Mr. Manager NADLER. Before I begin, Mr. Chief Justice, the House
managers will be reserving the balance of our time to respond to the
arguments of the counsel for the President.
Mr. Chief Justice, Senators, counsel for the President, the House
managers strongly support this amendment to subpoena John Bolton. I am
struck by what we have heard from the President's counsel so far
tonight. They complain about process, but they do not seriously contest
any of the allegations against the President. They insist that the
President has done nothing wrong, but they refuse to allow the evidence
and hear from the witnesses. They will not permit the American people
to hear from the witnesses, and they lie and lie and lie and lie.
For example, for months, President Trump has repeatedly complained
that the House denied them the right to call witnesses, to cross-
examine witnesses, and so forth. You heard Mr. Cipollone repeat this
lie today. Well, I have with me the letter that I sent as Chairman of
the House Judiciary Committee last November 26, inviting the President
and his counsel to attend our hearings, to cross-examine the witnesses,
to call witnesses of his own, and so forth. I also have the White House
letter signed by Mr. Cipollone, rejecting that offer. We should expect
at least a little regard for the truth from the White House, but that
is apparently too much to expect.
Ladies and gentlemen, this is a trial. At a trial, the lawyers
present evidence. The American people know that. Most 10-year-olds know
that. If you vote to block this witness or any of the evidence that
should be presented here, it can only be because you do not want the
American people to hear the evidence, that you do not want a fair
trial, and that you are complicit in President Trump's efforts to hide
his misconduct and hide the truth from the American people.
Ambassador Bolton was appointed by President Trump. He has stated his
willingness to testify in this trial. He is prepared to testify. He
says that he has relevant evidence not yet disclosed to the public. His
comments reaffirm what is obvious from the testimony and documents
obtained by the House, which highlight Ambassador Bolton's role in the
repeated criticism of the President's misconduct.
In fact, extensive evidence collected by the House makes clear that
Ambassador Bolton not only had firsthand knowledge of the Ukraine
scheme but that he was deeply concerned with it. He described the
scheme as a ``drug deal'' to a senior member of the staff. He warned
that President Trump's personal lawyer, Rudy Giuliani, would ``blow
everybody up.'' Indeed, in advance of the July 25, 2019, call,
Ambassador Bolton expressed concern that President Trump would ask the
Ukrainian President to announce these political investigations, which
is, of course, exactly what happened. Of course, there weren't to be
any investigations. All he cared about was an announcement to smear a
political rival in the United States. He repeatedly urged his staff to
report their own concerns about the President's conduct to legal
counsel--that is, Ambassador Bolton did, not the President--as the
scheme was unfolding.
Finally, as National Security Advisor, he also objected to the
President's freezing of military aid to Ukraine and advocated for the
release of that aid, including directly with President Trump. Of
course, as we all know, the Impoundment Control Act makes illegal the
President's withholding of that aid after Congress had voted for it,
but the President ignored the warnings about that because all he cared
about was smearing a political rival. The law meant nothing to him.
Ambassador Bolton has made clear that he is ready, willing, and able
to testify about everything he witnessed, but President Trump does not
want you to hear from Ambassador Bolton, and the reason has nothing to
do with executive privilege or this other nonsense. The reason has
nothing to do with national security. If the President cared about
national security, he would not have blocked military assistance to a
vulnerable strategic ally in the attempt to secure a personal political
favor for himself.
No, the President does not want you to hear from Ambassador Bolton
because the President does not want the American people to hear
firsthand testimony about the misconduct at the heart of this trial.
The question is whether the Senate will be complicit in the President's
crimes by covering them up. Any Senator who votes against Ambassador
Bolton's testimony or any relevant testimony shows that he or she
wants to be part of the coverup. What other possible reason is there to
prohibit a relevant witness from testifying here? Unfortunately, so
far, I have seen every Republican Senator has shown that they want to
be part of the coverup by voting against every document and witness
proposed.

Ambassador Bolton is a firsthand witness to President Trump's abuse
of power. As the National Security Advisor, he reported directly to the
President and supervised the entire National Security Council. That
included three key witnesses with responsibility for Ukraine matters
who testified in great detail before the House--Dr. Fiona Hill, Tim
Morrison, and LTC Alexander Vindman.
Moreover, in his role, John Bolton was the tip of the spear for
President Trump on national security. It was his responsibility to
oversee everything happening in the Trump administration regarding
foreign policy and national security. By virtue of his unique position
appointed by the President, Bolton had knowledge of the latest
intelligence and developments in our relationship with Ukraine,
including our support of the country and its new President, and that is
why the President and some Members of this body are afraid to hear from
Ambassador Bolton--because they know he knows too much.
There is also substantial evidence that Ambassador Bolton kept a keen
eye on Rudy Giuliani, who was acting on behalf of the President in
connection with Ukraine. As we will describe, Ambassador Bolton
communicated directly with Mr. Giuliani at key moments. He knows the
details of the so-called drug deal he would later warn against.
Perhaps most importantly, Ambassador Bolton has said both that he
will testify and that he has relevant information that has not yet been
disclosed. A key witness has come forward and confirmed not only that
he participated in critically important events but that he has new
evidence we have not yet heard. That is precisely what Ambassador
Bolton has done. His lawyer tells us that Ambassador Bolton was
``personally involved in many of the events, meetings, and
conversations about which the House heard testimony, as well as many
relevant meetings and conversations that have not yet been discussed in
the testimony thus far.''
Ambassador Bolton was requested as a witness in the House inquiry,
but he refused to appear voluntarily. His lawyers informed the House
Intelligence Committee that Ambassador Bolton would take the matter to
court if issued a subpoena, as his subordinate did, but the Ambassador
changed his tune. He recently issued a statement confirming that ``if
the Senate issues a subpoena for my testimony, I am prepared to
testify.''
So the question presented as to Ambassador Bolton is clear. It comes
down to this: Will the Senate do its duty and hear all the evidence? Or
will it slam this door shut and show it is participating in a coverup
because it fears to hear testimony from the former National Security
Advisor of the President, because it fears what he might say or it
fears he knows too much?

[[Page S424]]

Consider this as well: Why is President Trump so intent on preventing
us from hearing Ambassador Bolton, his own appointee, his formerly
trusted confidant? Because he knows--he knows--his guilt and he knows
that he doesn't want people who know about it to testify. The question
is whether Republican Senators here today will participate in that
coverup.
The reasons seem clear. President Trump wants to block this witness
because Ambassador Bolton has direct knowledge of the Ukraine scheme,
which he called a drug deal. Let's start with the key meeting that took
place on July 10.
Just 2 weeks before President Trump's now famous July 25 call with
President Zelensky, Ambassador Bolton hosted senior Ukrainian officials
in his West Wing office. That meeting included Dr. Hill, Lieutenant
Colonel Vindman, Ambassadors Sondland and Volker, and Energy Secretary
Rick Perry. As they did in every meeting they took with U.S. officials,
Ukrainian officials asked when President Trump would schedule a White
House meeting for the newly elected Ukrainian President because it was
very important for the Ukrainian President, a new President of an
embattled democracy being invaded by Russia, to show that he had
legitimacy by a meeting with the United States.
Dr. Hill testified that Ambassador Sondland blurted out that he had a
deal with Mr. Mulvaney for a White House visit, provided that Ukraine
first announce investigations into the President's political rivals.
Ambassador Bolton immediately stiffened and ended the meeting. Dr.
Hill's testimony is on the screen.
In other words, Ambassador Bolton and others at the meeting were
interested in the national security of the United States. They were
interested in protecting an American ally against Russian invasion.
They couldn't understand why this sudden order was coming from the
President to abandon that ally because they didn't yet know--they
didn't yet know--of the President's plot to try to extort the Ukrainian
Government into doing him a political favor by announcing an
investigation of a political rival.
When Dr. Hill reported back to Ambassador Bolton about the second
conversation, Ambassador Bolton told Dr. Hill to go to the National
Security Council's legal advisor, John Eisenberg, and tell him: ``I am
not part of whatever drug deal Sondland and Mulvaney are cooking up on
this.''
Here is an excerpt of her hearing testimony.
(Text of Videotape presentation:)

Ms. HILL. The specific instruction was that I had to go to
the lawyers--to John Eisenberg, the senior counsel for the
National Security Council, to basically say: 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?
Ms. HILL. I took it to mean investigations for a meeting.
Mr. GOLDMAN. Did you go speak to the lawyers?
Ms. HILL. I certainly did.

Mr. Manager NADLER. These statements of events are reason enough to
insist that Ambassador Bolton testify. He can explain the misconduct
that caused him to characterize the Ukraine scheme as a drug deal and
why he directed his subordinates to report their concerns to a legal
counsel. He can tell us everything else he knows about how Ambassador
Sondland, Mr. Mulvaney, and others were attempting to press the
Ukrainians to do President Trump's political bidding. Once more, only
Ambassador Bolton can tell us what he was thinking and what he knew as
this scheme developed. That is why the President fears his testimony.
That is why some Members of this body fear his testimony.
Ambassador Bolton's involvement was not limited to a few isolated
events; he was a witness at key moments in the course of the Ukraine
scheme, especially in July, August, and September of last year. I would
like to walk through some of these events. Please remember, as I am
describing them, that this is not the entire universe of issues to
which Ambassador Bolton could testify; they are only examples that show
why he is such an important witness and why the President is desperate
to block his testimony.
We know from Ambassador Bolton's attorney that there may be other
meetings and conversations that have not yet come to our attention. To
take one example, we know from witness testimony that Ambassador Bolton
repeatedly expressed concerns about the involvement of President
Trump's personal lawyer, Mr. Giuliani.
In the spring and summer of 2019, Ambassador Bolton caught wind of
Mr. Giuliani's involvement in Ukraine and soon began to express
concerns. Ambassador Bolton expressed strong concerns about Mr.
Giuliani's involvement in Ukraine matters.
When Ambassador Bolton described Mr. Giuliani as ``a hand grenade
that was going to blow everybody up,'' it was based on his fear that
Mr. Giuliani's work on behalf of the President, his attempts to have
Ukraine announce these investigations--these sham investigations--and
his campaign to smear Ambassador Yovanovitch would ultimately backfire
and cause lasting damage to the President. It turns out he was right.
(Text of Videotape presentation:)

Ms. SEWELL. Did your boss, Dr. Bolton--I mean Ambassador
Bolton, tell you that Giuliani was ``a hand grenade''?
Ms. HILL. He did, yes.
Ms. SEWELL. What do you think he meant by his
characterization of Giuliani as a hand grenade?
Ms. Hill. What he meant by this was pretty clear to me in
the context of all of the statements that Mr. Giuliani was
making publicly about the investigations that he was
promoting, that the story line he was promoting, the
narrative he was promoting was going to backfire. I think it
has backfired.

Mr. Manager NADLER. In June, as Ambassador Bolton became aware of Mr.
Giuliani's coordination with Ambassadors Volker and Sondland, he told
Dr. Hill and other members of the National Security Council staff that
``nobody should be meeting with Giuliani.'' But, he, of course, did not
know of the President's plot as to why people were meeting with
Giuliani.
Dr. Hill also testified that Ambassador Bolton was ``closely
monitoring what Mr. Giuliani was doing and the messaging that he was
sending out.'' But Ambassador Bolton was keenly aware that Mr. Giuliani
was doing the President's bidding. That is also why the President fears
his testimony.
During a meeting on June 13, 2019, Ambassador Bolton made clear that
he supported more engagement with Ukraine by senior White House
officials but questioned that ``Mr. Giuliani was a key voice with the
president on Ukraine.'' He joked that every time Ukraine is mentioned,
Giuliani pops up.
Ambassador Bolton also communicated directly with Mr. Giuliani at key
junctures. According to call records obtained by the House, Mr.
Giuliani connected with Ambassador Bolton's office three times for
brief calls between April 23 and May 10, 2019, a time period that
corresponds with the recall of Ambassador Yovanovitch and the
acceleration of Mr. Giuliani's efforts on behalf of President Trump to
pressure Ukraine into opening investigations that would benefit his
reelection campaign.
For instance, on April 23, the day before the State Department
recalled Ambassador Yovanovitch from Ukraine, Mr. Giuliani had an 8-
minute 28-second call from the White House. Thirty minutes later, he
had a 48-second call with a phone number associated with Ambassador
Bolton.
If he were called to testify, we could ask Ambassador Bolton directly
what transpired on that call and whether that phone call informed his
assessment that Mr. Giuliani was ``a hand grenade that was going to
blow everyone up.'' We can ask Mr. Bolton why, when there are
approximately 1.8 million companies in Ukraine--several hundred
thousand of which have been accused of corruption--the President was
focused on only one. He didn't care about anything else. He cared only
about the company on which the former Vice President's son had been a
board member. Can you believe that he was concerned with corruption and
only knew about one company, when there are hundreds of thousands that
were accused of corruption?

Although Ambassador Bolton did not listen in on the July 25 call
between President Trump and President

[[Page S425]]

Zelensky in which President Trump asked the Ukrainian President a
favor--a favor to investigate one company and Joe Biden's son--we have
learned from witness testimony that Ambassador Bolton was opposed to
scheduling the call in the first place. Why? Because he accurately
predicted, in the words of Ambassador Taylor, that ``there could be
some talk of investigations or worse on the call.'' In fact, he did not
want the call to happen at all because he ``thought it was going to be
a disaster.''
How did Ambassador Bolton know that President Trump would bring this
up? What made him so concerned that a call would be a disaster? I think
we know, but only Ambassador Bolton can answer these questions.
Based on extensive witness testimony, we also know that throughout
this period, multiple people on the National Security Council's staff
reported concerns to Ambassador Bolton about tying American foreign
policy to President Trump's ``domestic political errand,'' as Dr. Hill
so aptly put it.
After he abruptly ended the July 10 meeting--the meeting in which
Ambassador Sondland abruptly told the Ukrainians that a White House
meeting could be scheduled in exchange for the announced
investigations--Ambassador Bolton spoke to Dr. Hill and directed her to
report her concerns to National Security Council's legal adviser John
Eisenberg.
At the end of August, Ambassador Bolton advised Ambassador Taylor to
send a first-person cable to Secretary Pompeo to relay concerns about
the hold on the military aid.
Ambassador Bolton also advised Mr. Morrison--Dr. Hill's successor as
the top Russia and Ukraine official on the National Security Council--
on at least two different occasions to report what he had heard to the
National Security Council's lawyers, it sounding so suspicious.
On September 1, Ambassador Bolton directed Mr. Morrison to report to
the National Security Council's lawyers an explicit proposal from
Ambassador Sondland to a senior Ukrainian official that ``what could
help them move the aid was if the prosecutor general would go to the
mike and announce that he was opening the Burisma investigation.''
On September 7, Ambassador Bolton instructed Mr. Morrison to report
to the lawyers another conversation Mr. Morrison had with Ambassador
Sondland. This time, Ambassador Sondland had conveyed that the
administration would not release the military aid unless President
Zelensky announced the investigations demanded by President Trump--the
investigations of one company because the President was so concerned
about the corruption in Ukraine. It was one company that had had Vice
President Biden's son on the board, and the President just happened to
pick that company from hundreds of thousands to be concerned about
corruption. And the President also opposed funding for corruption aid
to Ukraine.
Why did Ambassador Bolton tell his subordinates to report these
issues to the national security lawyers? What does he know about how
the lawyers responded to the concerns of Dr. Hill or of Lieutenant
Colonel Vindman and Mr. Morrison? Again, only Ambassador Bolton can
answer these questions, and we must assume that the answers go to the
heart of the President's misconduct, given the President's attempt to
block his testimony. Why would the President oppose the testimony of
his own appointee as the National Security Advisor of the United States
unless he knew that testimony would be damming to him? Those are other
reasons the President fears Ambassador Bolton's testimony.
I would like to now turn to Ambassador Bolton's knowledge of and
concerns about President Trump's illegal withholding of the military
aid to Ukraine.
Of course, we all know that under the Anti-Impoundment Act of 1974--
passed to prevent President Nixon from refusing to spend money
appropriated by Congress--withholding money appropriated by Congress is
illegal; nonetheless, the President did it for obviously corrupt
motives.
By July of last year, Ambassador Bolton was well aware that President
Trump was illegally withholding security assistance to Ukraine, and he
and his subordinates tried to convince the President to pursue
America's national security interests and release the aid instead of
continuing to withhold vital military assistance to the President--
instead of holding that vital military assistance hostage to the
President's personal political agenda.
Throughout the rest of July, over the course of several interagency
meetings, the National Security Council repeatedly discussed the freeze
on Ukraine's security assistance. As National Security Advisor,
Ambassador Bolton supervised that process. These meetings worked their
way up to the level of Cabinet deputies, and every agency involved,
except for the Office of Management and Budget, supported releasing the
aid. OMB, meanwhile, said its position was based on President Trump's
express orders.
We know that a number of individuals at OMB and the Department of
Defense raised serious concerns about the legality of freezing the
funds, which we know is illegal. We now have an explicit ruling from
the Government Accountability Office, which we didn't need because we
knew that is why the law was passed in 1974, that the freeze ordered by
President Trump was illegal--and he was obviously told this--and
violated the Impoundment Control Act.
We also know that after the meeting of Cabinet deputies on July 26,
Tim Morrison talked to Ambassador Bolton, and according to Mr.
Morrison, Ambassador Bolton said that the entire Cabinet supported
releasing the freeze and wanted to get the issue to President Trump as
soon as possible.
When did Ambassador Bolton first become aware that President Trump
was withholding military aid to Ukraine and conditioning the release of
that aid on Ukraine announcing political investigations? What was he
told was the reason? What else did he learn about the President's
actions in these meetings? Again, only Ambassador Bolton can answer
these questions, and again we must presume that President Trump is
desperate for us not to hear those answers. I hope not too many of the
Members of this body are desperate to make sure that the American
people don't hear these same answers.
We know that Ambassador Bolton tried throughout August, without
success, to persuade the President that the aid to Ukraine had to be
released because that was in America's best interest and necessary for
our national security.
In mid-August, we know Lieutenant Colonel Vindman wrote a
Presidential decision memorandum recommending that the freeze be lifted
based on the consensus views of the entire Cabinet. The memo was given
to Ambassador Bolton, who subsequently had a direct, one-on-one
conversation with the President in which he tried but failed to
convince him to release the hold.
(Text of Videotape presentation:)

Mr. SWALWELL. You said Ambassador Bolton had a one-on-one
meeting with President Trump in late August 2019, but the
President was not yet ready to approve the release of the
assistance. Do you remember that?
Mr. MORRISON. This was 226?
Mr. SWALWELL. Yes, 266 and 268. But I am asking you: Did
that happen or did it not?
Mr. MORRISON. Sir, I just want to be clear characterizing
it. OK, sir.
Mr. SWALWELL. Yes. You testified to that. What was the
outcome of that meeting between Ambassador Bolton and
President Trump?
Mr. MORRISON. Ambassador Bolton did not yet believe the
President was ready to approve the assistance.
Mr. SWALWELL. Did Ambassador Bolton inform you of any
reason for the ongoing hold that stemmed from this meeting?

Mr. Manager NADLER. Ambassador Bolton's efforts failed. By August 30,
OMB informed DOD that there was ``clear direction from POTUS to
continue to hold.'' What rationale did President Trump give Ambassador
Bolton and other senior officials for refusing to release the aid? Were
these reasons convincing to Ambassador Bolton, and did they reflect the
best interests of our national security or the President's personal
political interests?
Only Ambassador Bolton can tell us the answers. A fair trial in this
body would ensure that he testifies. The President does not want you to
hear Ambassador Bolton's testimony. Why is that? For all the obvious
reasons I have stated.
The President claims that he froze aid to Ukraine in the interest of
our

[[Page S426]]

national security. If that is true, why would he oppose testimony from
his own former National Security Advisor?
Make no mistake. President Trump had no legal grounds to block
Ambassador Bolton's testimony in this trial. Executive privilege is not
a spell that the President can cast to cover up evidence of his own
misconduct. It is a qualified privilege that protects senior advisers
performing official functions. Executive privilege is a shield, not a
sword. It cannot be used to block a witness who is willing to testify,
as Ambassador Bolton says he is.
As we know from the Nixon case in Watergate, the privilege also does
not prevent us from obtaining specific evidence of wrongdoing. The
Supreme Court unanimously rejected President Nixon's attempts to use
executive privilege to conceal incriminating tape recordings. All the
similar efforts by President Trump must also fail.
The President sometimes relies on a theory of absolute immunity that
says that he can order anybody in the executive branch not to testify
to the House or the Senate or to a court. Obviously, this is
ridiculous. It has been flatly rejected by every Federal court to
consider the idea. It is embarrassing that the President's counsel
would talk about this today.
Again, even if President Trump asserts that Ambassador Bolton is
absolutely immune from compelled testimony, the President has no
authority to block Ambassador Bolton from appearing here. As one court
recently explained, Presidents are not Kings, and they do not have
subjects whose destiny they are entitled to control.
This body should not act as if the President is a King. We will see,
with the next vote on this question, whether the Members of this body
want to protect the President against all investigation, against all
suspicion, against any crimes, or not.
The Framers of our Constitution were most concerned about abuse of
power where it affects national security. President Trump has been
impeached for placing his political interests ahead of our national
security. It is imperative, therefore, that we hear from the National
Security Advisor who witnessed the President's scheme from start to
finish. To be clear, the record, as it stands, fully supports both
Articles of Impeachment. It is beyond argument that President Trump
mounted a sustained pressure campaign to get Ukraine to announce
investigations that would benefit him politically and then tried to
cover it up. The President does not seriously deny any of these facts.
The only question left is this: Why is the President so intent on
concealing the evidence and blocking all documents and testimony here
today? Only guilty people try to hide the evidence.
Of course, all of this is relevant only if this here today is a fair
trial, only if you, the Senate, sitting as an impartial jury, do not
work with the accused to conceal the evidence from the American people.
We cannot be surprised that the President objects to calling
witnesses who would prove his guilt. That is who he is. He does not
want you to see evidence or hear testimony that details how he betrayed
his office and asked a foreign government to intervene in our election.
But we should be surprised that, here in the U.S. Senate, the greatest
deliberative body in the world, where we are expected to put our oath
of office ahead of political expediency, where we are expected to be
honest, where we are expected to protect the interests of the American
people--we should be surprised, shocked--that any Senator would vote to
block this witness or any relevant witness who might shed additional
light on the President's obvious misconduct.
The President is on trial in the Senate, but the Senate is on trial
in the eyes of the American people. Will you vote to allow all of the
relevant evidence to be presented here, or will you betray your pledge
to be an impartial juror? Will you bring Ambassador Bolton here? Will
you permit us to present you with the entire record of the President's
misconduct, or will you, instead, choose to be complicit in the
President's coverup?
So far, I am sad to say, I see a lot of Senators voting for a
coverup, voting to deny witnesses--an absolutely indefensible vote,
obviously a treacherous vote, a vote against an honest consideration of
the evidence against the President, a vote against an honest trial, a
vote against the United States.
A real trial, we know, has witnesses. We urge you to do your duty,
permit a fair trial. All the witnesses must be permitted. That is
elementary in American justice. Either you want the truth and you must
permit the witnesses, or you want a shameful coverup. History will
judge. So will the electorate.
Mr. Chief Justice, we reserve the balance of our time--the managers.
The CHIEF JUSTICE. Mr. Cipollone.
Mr. Counsel CIPOLLONE. Mr. Chief Justice, Members of the Senate, we
came here today to address the false case brought to you by the House
managers. We have been respectful of the Senate. We have made our
arguments to you.
You don't deserve and we don't deserve what just happened. Mr. Nadler
came up here and made false allegations against our team. He made false
allegations against all of you. He accused you of a coverup. He has
been making false allegations against the President. The only one who
should be embarrassed, Mr. Nadler, is you, for the way you have
addressed this body. This is the U.S. Senate. You are not in charge
here.
Now let me address the issue of Mr. Bolton. I have addressed it
before. They don't tell you that they didn't bother to call Mr. Bolton
themselves. They didn't subpoena him. Mr. Cooper wrote them a letter.
He said very clearly: If the House chooses not to pursue through
subpoena the testimony of Dr. Kupperman and Ambassador Bolton, let the
record be clear. That is the House's decision.
They didn't pursue Ambassador Bolton, and they withdrew the subpoena
to Mr. Kupperman. So, for them to come here now and demand that, before
we even start the arguments--they ask you to do something that they
refuse to do for themselves and then accuse you of a coverup when you
don't do it--it is ridiculous. Talk about out-of-control governing.
Now, let me read you a quote from Mr. Nadler not so long ago:

The effect of impeachment is to overturn the popular will
of the voters. There must never be a narrowly voted
impeachment or an impeachment supported by one of our major
political parties and opposed by the other. Such an
impeachment would produce divisiveness and bitterness in our
politics for years to come and will call into question the
very legitimacy of our political institutions.

Well, you have just seen it for yourself. What happened, Mr. Nadler?
What happened?
The American people pay their salaries, and they are here to take
away their vote. They are here to take away their voice. They have come
here, and they have attacked every institution of our government. They
have attacked the President, the executive branch. They have attacked
the judicial branch. They say they don't have time for courts. They
have attacked the U.S. Senate, repeatedly. It is about time we bring
this power trip in for a landing.
President Trump is a man of his word. He made promises to the
American people, and he delivered--over and over and over again. And
they come here and say, with no evidence, spending the day complaining,
that they can't make their case, attacking a resolution that had 100
percent support in this body. And some of the people here supported it
at the time. It is a farce, and it should end.
Mr. Nadler, you owe an apology to the President of the United States
and his family. You owe an apology to the Senate. But, most of all, you
owe an apology to the American people.
Mr. Chief Justice, I yield the remainder of my time to Mr. Sekulow.
The CHIEF JUSTICE. Mr. Sekulow.
Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the Senate,
chairman Nadler talked about treacherous, and at about 12:10 a.m.,
January 22, the chairman of the Judiciary Committee, in this body, on
the floor of this Senate, said ``executive privilege and other
nonsense.'' Now, think about that for a moment--``executive privilege
and other nonsense.''
Mr. Nadler, it is not nonsense. These are privileges recognized by
the Supreme Court of the United States. To shred the Constitution on
the floor of the Senate--to serve what purpose? The Senate is not on
trial. The Constitution doesn't allow what just took place.

[[Page S427]]

Look at what we have dealt with for the last now 13 hours. We,
hopefully, are closing the proceedings, but not on a very high note.
Only guilty people try to hide evidence? So, I guess, when President
Obama instructed his Attorney General to not give information, he was
guilty of a crime. That is the way it works, Mr. Nadler? Is that the
way you view the U.S. Constitution? Because that is not the way it was
written. That is not the way it is interpreted, and that is not the way
the American people should have to live.
I will tell you what is treacherous: To come to the floor of the
Senate and say ``executive privilege and other nonsense.''
Mr. Chief Justice, we yield the rest of our time.
The CHIEF JUSTICE. The managers have 27 minutes remaining.
Mr. Manager NADLER. Mr. Chief Justice, Members of the Senate, the
President's counsel has no standing to talk about lying. He told this
body today--the President has told this body--and told the American
people repeatedly, for example, that the House of Representatives
refused to allow the President due process. I told you that it is
available--public document, November 26 letter from me, as chairman of
the Judiciary Committee, to the President, offering him due process,
offering witnesses, offering cross-examination.

A few days later, we received a letter from Mr. Cipollone on White
House stationery that said: No, we have no interest in appearing.
On the one hand, the House is condemned by the President for not
giving him due process after they rejected the offer of due process.
That letter rejecting it was December 1.
The President's counsel says that the House should have issued
subpoenas. We did issue subpoenas. The President, you may recall--you
should recall--said he would oppose all subpoenas, and he did. So many
of those subpoenas are still being fought in court--subpoenas issued
last April. So that is also untrue. It takes a heck of a lot of nerve
to criticize the House for not issuing subpoenas when the President
said he would oppose all subpoenas. We have issued a lot of subpoenas.
He opposes all of them, and they are tied up in court.
The President claims--and most Members of this body know better,
executive privilege, which is a limited privilege, which exists but not
as a shield, not as a shield against wrongdoing, as the Supreme Court
specifically said in the Nixon case in 1974. The President claims
absolute immunity. Mr. Cipollone wrote some of those letters, not only
saying the President but that nobody should testify that he doesn't
want, and then they have the nerve--and that is a violation of the
constitutional rights of the House of Representatives and the Senate
and of the American people represented through them.
It is an assertion of the kingly prerogative, a monarchical
prerogative. Only the President--only the President has rights, and the
people as represented in Congress cannot get information from the
executive branch at all. This body has committees. It has a 200-year
record of issuing subpoenas, of having the administration of the day
testify, of sometimes having subpoena fights, but no President has ever
claimed the right to stonewall Congress on everything, period. Congress
has no right to get information. The American people have no right to
get information. That, in fact, is article II of the impeachment that
we have voted.
It is beyond belief that the President claims monarchical powers--I
can do whatever I want under article II, says he--and then acts on
that, defies everything, defies the law to withhold aid from Ukraine,
defies the law in a dozen different directions all the time, and lies
about it all the time and says to Mr. Cipollone to lie about it. These
facts are undeniable--undeniable.
I reserve.
Mr. Manager SCHIFF. Mr. Cipollone, once again, complained that we did
not request John Bolton to testify in the House, but of course we did.
We did request his testimony, and he was a no-show.
When we talked to his counsel about subpoenaing his testimony, the
answer was: You give us a subpoena, and we will sue you. And, indeed,
that is what Mr. Bolton's attorney did with the subpoena for Dr.
Kupperman.
There was no willingness by Mr. Bolton to testify before the House.
He said he would sue us. What is the problem with his suing us? Their
Justice Department, under Bill Barr, is in court arguing--actually in
that very case involving Dr. Kupperman--that Dr. Kupperman can't sue
the administration and the Congress.
That is the same position that Congress has taken, the same position
the administration is taking but, apparently, not the same position
these lawyers are taking.
Here is the bigger problem with that. We subpoenaed Don McGahn, as I
told you earlier. You should know we subpoenaed Don McGahn in April of
2019. It is January of 2020. We still don't have a final decision from
the court requiring him to testify. In a couple of months, it will be 1
year since we issued that subpoena.
The President would like nothing more than for us to have to go
through 1 year or 2 years or 3 years of litigation to get any witness
to come before the House. The problem is, the President is trying to
cheat in this election. We don't have the luxury of waiting 1 year or 2
years or 3 years, when the very object of this scheme was to cheat in
the next election. It is not like that threat has gone away.
Just last month, the President's lawyer was in Ukraine still trying
to smear his opponent and still trying to get Ukraine to interfere in
our election. The President said, even while the impeachment
investigation was going on, when he was asked: What did you want in
that call with Zelensky, and his answer was: Well, if we are being
honest about it, Zelensky should do that investigation of the Bidens.
He hasn't stopped asking them to interfere. Do you think the
Ukrainians have any doubt about what he wants? One of the witnesses,
David Holmes, testified about the pressure that Ukraine feels. He made
a very important point: It isn't over. It is not like they don't want
anything else from the United States.
This effort to pressure Ukraine goes on to this day, with the
President's lawyer continuing the scheme, as we speak, with the
President inviting other nations to also involve themselves in our
election.
China--he wants to now investigate the Bidens. This is no intangible
threat to our elections. Within the last couple of weeks, it has been
reported that the Russians have tried to hack Burisma. Why do you think
they are hacking Burisma? Because, as Chairman Nadler says, everybody
seems to be interested in this one company out of hundreds of thousands
Ukrainian companies. It is a coincidence that the same company that the
President has been trying to smear Joe Biden over happens to be the
company the Russians are hacking.
Why would the Russians do that? If you look back to the last
election, the Russians hacked the DNC, and they started to leak
campaign documents in a drip, drip, drip, and the President was only
too happy--over 100 times in the last couple of months in the
campaign--to cite those Russian-hacked Russian documents, and now the
Russians are at it again.
This is no illusory threat to the independence of our elections. The
Russians are at it, as we speak. What does the President do? Is he
saying: Back off, Russia; I am not interested in your help; I don't
want foreign interference? No, he is saying: Come on in, China. He has
his guy in Ukraine continuing the scheme.
We can't wait a year or 2 years or 3 years, like we have had to wait
with Don McGahn, to get John Bolton in to testify to let you know that
this threat is ongoing.
Counsel also says: Well, this is just like Obama, right? This is just
like Obama, citing, I suppose, the Fast and Furious case. They don't
mention to you that in that investigation, the Obama administration
turned over tens of thousands of documents. They don't want you to know
about that. They say it is just like Obama.
When you find video of Barack Obama saying that under article II he
can do anything, then you can compare Barack Obama to Donald Trump.
When you find a video of Barack Obama saying: I am going to fight all
subpoenas, then you can compare Barack Obama to Donald Trump.

[[Page S428]]

And finally, Mr. Cipollone says, President Trump is a man of his
word. It is too late in the evening for me to go into that one, except
to say this. President Trump gave his word he would drain the swamp. He
said he would drain the swamp. What have we seen? We have seen his
personal lawyer go to jail, his campaign chairman go to jail, his
deputy campaign chairman convicted of a different crime, his
associates' associate, Lev Parnas, under indictment. The list goes and
on. That is, I guess, how you drain the swamp. You have all your people
go to jail.
I don't think that is really what was meant by that expression. For
the purposes of why we are here today, how does someone who promises to
drain the swamp coerce an ally of ours into doing a political
investigation? That is the swamp. That is not draining the swamp; that
is exporting the swamp.
I yield back.
The CHIEF JUSTICE. I think it is appropriate at this point for me to
admonish both the House managers and the President's counsel in equal
terms to remember that they are addressing the world's greatest
deliberative body. One reason it has earned that title is because its
Members avoid speaking in a manner and using language that is not
conducive to civil discourse.

=========================== NOTE ===========================

On page S428, January 21, 2020, first column, the following
appears: The CHIEF JUSTICE. I think it is appropriate at this
point for me to admonish both the House managers and the
President's counsel in equal terms to remember that they are
addressing the world's greatest deliberative body. One reason it
has earned that title is because its Members avoid speaking in a
manner and using language that is not conducive to certain
discourse.

The online Record has been corrected to read: The CHIEF JUSTICE.
I think it is appropriate at this point for me to admonish both
the House managers and the President's counsel in equal terms to
remember that they are addressing the world's greatest
deliberative body. One reason it has earned that title is because
its Members avoid speaking in a manner and using language that is
not conducive to civil discourse.

========================= END NOTE =========================

In the 1905 Swayne trial, a Senator objected when one of the managers
used the word ``pettifogging,'' and the Presiding Officer said the word
ought not have been used. I don't think we need to aspire to that high
a standard, but I think those addressing the Senate should remember
where they are.

=========================== NOTE ===========================

On page S428, January 21, 2020, first column, the following
appears: In the 1905 Swain trial, a Senator objected when one of
the managers used the word ``pettifogging,''

The online Record has been corrected to read: In the 1905 Swayne
trial, a Senator objected when one of the managers used the word
``pettifogging,''

========================= END NOTE =========================

The majority leader is recognized.

Motion to Table

Mr. McCONNELL. Mr. Chief Justice, it will surprise no one that I move
to table the amendment and ask for the yeas and nays.
The CHIEF JUSTICE. Is there a sufficient second?
There is a sufficient second.
The legislative clerk called the roll.
The CHIEF JUSTICE. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 53, nays 47, as follows:

[Rollcall Vote No. 22 Leg.]

YEAS--53

NAYS--47

Amendment No. 1292

Mr. SCHUMER. Thank you, Mr. Chief Justice.
I send an amendment to the desk to provide for a vote of the Senate
on any motion to subpoena witnesses or documents after the question
period, and I waive its reading.
The CHIEF JUSTICE. Is there any objection to the waiving of the
reading?
Mr. Counsel CIPOLLONE. I object.
Mr. SCHUMER. I withdraw my request for a waiver.
The CHIEF JUSTICE. Does any Senator have an objection to the waiving
of the reading?
Ms. MURKOWSKI. I object.
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 1292.
On page 3, line 8, strike ``4 hours'' and insert ``2
hours''.
On page 3, line 10, strike ``the question of'' and all that
follows through ``rules'' on line 12.
On page 3, line 14, insert ``any such motion'' after
``decide''.
On page 3, line 15, strike ``whether'' and all that follows
through ``documents'' on line 17.
On page 3, line 18, strike ``that question'' and insert
``any such motion''.
On page 3, lines 23 and 24 strike ``and the Senate shall
decide after deposition which witnesses shall testify'' and
insert ``and then shall testify in the Senate''.

The CHIEF JUSTICE. The amendment is arguable by the parties for 2
hours, equally divided.
Mr. Manager Schiff, are you a proponent or opponent?
Mr. Manager SCHIFF. Proponent.
Mr. Counsel CIPOLLONE. We oppose it.
The CHIEF JUSTICE. Mr. Schiff, you may proceed and reserve time for
rebuttal.
Mr. Manager SCHIFF. Senators, this amendment makes two important
changes to the McConnell resolution.
The first is, the McConnell resolution does not actually provide for
an immediate vote even later on the witnesses we have requested.
What the McConnell resolution says is that at some point after,
essentially, the trial is over--after you have had the arguments of
both sides and you have had the 16 hours of questioning--then there
will be a debate as to whether to have a vote and a debate on a
particular witness. There is no guarantee that you are going to get a
chance to vote on specific witnesses.
All the resolution provides is that you are going to get an
opportunity to vote to have a debate on whether to ultimately have a
vote on a particular witness. This would strip that middle layer. It
would strip the debate on whether to have a debate on a particular
witness.
If my counsel, my colleagues for the President's team, are making the
point that ``Well, you are going to get that opportunity later,'' the
reality is that under the McConnell resolution, we may never get to
have a debate about particular witnesses.
You heard the discussion of four witnesses tonight. There may be
others who come to the attention of this body who are able to get
documents that we should also call. But will you ever get to hear a
debate about why a particular witness is necessary? Well, you may only
get a debate over the debate. This amendment would remove that debate
over debate regarding particular witnesses.
The other thing this resolution would provide is that you should hear
from these witnesses directly. The McConnell resolution says that we
deposed, and that is it. It doesn't say you are ever going to actually
hear these witnesses for yourself, which means that you, as the triers
of fact, may not get to see and witness the credibility of these
witnesses. You may only get to see a deposition or deposition
transcript or maybe a video of a deposition. I don't know. But if there
is any contesting of facts, wouldn't you like to hear from the
witnesses yourself and very directly?
Now, the reason why it was done this way in the Clinton case and why
there were depositions--and again, in the Clinton case, all these
people had been interviewed and deposed or testified before. The reason
it was done that way in the Clinton case is because of the salacious
nature of the testimony. Nobody wanted witnesses on the Senate floor
talking about sex. Well, as I said earlier, I can assure you that will
not be the issue here.
To whatever degree there was a reluctance in the Clinton case to have
live testimony because of its salacious character, that is not an issue
here. That is not a reason here not to hear from those witnesses
yourself.
This resolution makes those two important changes, and I would urge
your support.
I reserve time.
The CHIEF JUSTICE. Mr. Cipollone.
Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice.
Mr. Purpura will argue this motion.
Mr. Counsel PURPURA. Mr. Chief Justice, Members of the Senate, good
morning. I will be very brief on this.
We strongly oppose the amendment. We support the resolution as
written. We believe, as to the two areas that Manager Schiff discussed,
the resolution appropriately considers those

[[Page S429]]

questions and strikes the impeachment balance in the Senate's
discretion as the sole trier of impeachments.
The rules in place here in the resolution are similar to the Clinton
proceeding in that regard in the sense that this body has the
discretion as to whether to hear from the witness live, if there are
witnesses at some point, or not.
But, more fundamentally, the preliminary question has to be overcome,
which is there will be 4 hours total, with 2 hours for them to try to
convince you, after the parties have made their presentation--which
they will have 24 hours to do--as to the preliminary question of
whether it shall be in order to consider and debate any motion to
subpoena witnesses or documents.
Those were precisely the Clinton rules--actually, stronger than the
Clinton rules. Those rules, as I have indicated before, passed 100 to
0. We think that the resolution strikes the appropriate balance, and we
urge that the amendment be rejected.
I yield my time.
The CHIEF JUSTICE. Thank you, counsel.
Mr. Schiff, you have 57 minutes.
Mr. Manager SCHIFF. Don't worry. I won't use it.
I will say only that if there were any veneer left to camouflage
where the President's counsel is really coming from, the veneer is
completely gone now. After saying we are going to have an opportunity
to have a vote on these witnesses later, now they are saying: No, you
are just going to have a vote on whether to debate having a vote on the
witnesses.
The camouflage was pretty thin to begin with, but it is completely
gone now.
What they really want is to get to that generic debate about whether
or not to have a debate on witnesses and have you vote it down so you
never actually have to vote to refuse these witnesses, although you had
to do that tonight. I don't see what purpose that serves except, I
suppose, to put one more layer in the way of accountability.
But the veneer is gone. All this promise about ``You are going to get
that opportunity, it is just a question of when''--no, the whole goal
is for you to never get the chance to take that vote. And what is more,
the vote on this resolution is a vote that says that you don't want to
hear from these witnesses yourself. You don't want to evaluate the
credibility of these witnesses yourself. Maybe--just maybe--you will
let them be deposed, but you don't want to hear them yourself. You
don't want to see these witnesses put up their hand and take an oath.
I don't know what the rules of these depositions are going to be.
Maybe the public isn't going to ever get to see what happens in those
depositions. We released all the deposition transcripts from our
depositions--the secret 100-person depositions--but we have no idea
what rules they will adopt for these depositions. Maybe the public will
see them; maybe they won't. Maybe you will get to see them; I assume
you will get to see them. But at the end of the day, this is also a
vote you have to cast that says: No, I don't want to hear them for
myself. No, I don't want to evaluate their credibility for myself.
This is, after all, only a vote, only a case, only a trial about the
impeachment of the President of the United States. If you have a bank
robbery trial or you have a trial where somebody is stealing a piece of
mail, you could get live witnesses. But to impeach the President of the
United States, they are saying: No, we don't need to see their
credibility.
Is that really where we are here tonight? Is that what the American
people expect of a fair trial? I don't think it is.
I yield back.
The CHIEF JUSTICE. The majority leader is recognized.

Motion to Table

Mr. McCONNELL. Mr. Chief Justice, I move to table the amendment and
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 PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 53, nays 47, as follows:

[Rollcall Vote No. 23 Leg.]

YEAS--53

NAYS--47

Amendment No. 1293

Mr. SCHUMER. Mr. Chief Justice, I send an amendment to the desk to
allow adequate time for written responses to any motions by the
parties, and I ask that it be read.
The CHIEF JUSTICE. The clerk will read the amendment.
The senior assistant legislative clerk read as follows:

The Senator from New York [Mr. Schumer] proposes an
amendment numbered 1293.
On page 2, beginning on line 10, strike ``11:00 a.m. on
Wednesday, January 22, 2020'' and insert ``9:00 a.m. on
Thursday, January 23, 2020''.
On page 2, line 15, strike ``Wednesday, January 22, 2020''
and insert ``Thursday, January 23, 2020''.

The CHIEF JUSTICE. The amendment is arguable by the parties for 2
hours, equally divided.
Mr. Manager Schiff, are you a proponent of this amendment?
Mr. Manager SCHIFF. Mr. Chief Justice, I am a proponent.
The CHIEF JUSTICE. Mr. Cipollone, are you a proponent or an opponent
of this amendment?
Mr. Counsel CIPOLLONE. Mr. Chief Justice, I am an opponent.
The CHIEF JUSTICE. Okay.
Mr. Schiff, you may proceed and reserve time for rebuttal if you
wish.
Mr. Manager SCHIFF. Thank you, Mr. Chief Justice.
This amendment is quite simple. Under the McConnell resolution, the
parties file motions tomorrow at 9 a.m.--written motions, that is--and
the responding party has to file their reply 2 hours later. That really
doesn't give anybody enough time to respond to a written motion.
When the President's team filed, for example, their trial brief, it
was over 100 pages. We at least had 24 hours to file our reply, and
that is all we would ask for. In the Clinton trial--again, if we are
interested in the Clinton case--they had 41 hours to respond to written
motions. We are not asking for 41 hours, but we are asking for enough
time to write a decent response to a motion.
That is essentially it, and I would hope that we could agree at least
on this.
I reserve the balance of my time.
The CHIEF JUSTICE. Mr. Sekulow.
Mr. Counsel SEKULOW. Thank you, Mr. Chief Justice and Members of the
Senate.
So it seems like tomorrow is a day off according to your procedure;
is that correct, Mr. Schiff?
Mr. Manager SCHIFF. I forgot the time.
Mr. Counsel SEKULOW. Today is tomorrow, and tomorrow is today. The
answer is that we are ready to proceed. We will respond to any motions.
We would ask the Chamber to reject this amendment.
The CHIEF JUSTICE. Mr. Schiff, there are 59 minutes remaining.
Mr. Manager SCHIFF. I yield back our time.
The CHIEF JUSTICE. The majority leader is recognized.

[[Page S430]]

Motion to Table

Mr. McCONNELL. Mr. Chief Justice, I move to table the amendment.
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 result was announced--yeas 52, nays 48, as follows:

[Rollcall Vote No. 24 Leg.]

YEAS--52

Alexander
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
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--48

Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Collins
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 Democratic leader is recognized.

Amendment No. 1294

Mr. SCHUMER. Mr. Chief Justice, on behalf of Senator Van Hollen, I
send an amendment to the desk to help ensure impartial justice by
requiring the Chief Justice of the United States to rule on motions to
subpoena witnesses and documents. I ask that it be read. This is our
last amendment of the evening.
The CHIEF JUSTICE. The clerk will read the amendment.
The senior assistant legislative clerk read as follows:

The Senator from New York [Mr. Schumer], for Mr. Van
Hollen, proposes an amendment numbered 1294.
On page 3, line 20, insert ``The Presiding Officer shall
rule to authorize the subpoena of any witness or any document
that a Senator or a party moves to subpoena if the Presiding
Officer determines that the witness or document is likely to
have probative evidence relevant to either article of
impeachment before the Senate.'' after ``order.''.
The CHIEF JUSTICE. The amendment is arguable by the parties for 2
hours, equally divided.
Mr. Manager Schiff, are you a proponent or an opponent of the motion?
Mr. Manager Schiff. Mr. Chief Justice, I am a proponent.
The CHIEF JUSTICE. Mr. Cipollone, are you a proponent or an opponent
of the motion?
Mr. Counsel CIPOLLONE. Mr. Chief Justice, I am an opponent.
The CHIEF JUSTICE. Mr. Schiff, you may proceed and reserve time for
rebuttal.
Mr. Manager SCHIFF. Senators, this amendment would provide that the
Presiding Officer shall rule to authorize the subpoena of any witness
or any document that a Senator or a party moves to subpoena if the
Presiding Officer determines that that witness is likely to have
probative evidence relevant to either Article of Impeachment.
It is quite simple. It would allow the Chief Justice and it would
allow Senators, the House managers, and the President's counsel to make
use of the experience of the Chief Justice of the Supreme Court to
decide the questions of the relevance of witnesses. Either party can
call the witnesses, and if we can't come to an agreement on witnesses
ourselves, we will pick a neutral arbiter, that being the Chief Justice
of the Supreme Court. If the Chief Justice finds that a witness would
be probative, that witness would be allowed to testify. If the Chief
Justice finds the testimony would be immaterial, that witness would not
be allowed to testify.
Now, it still maintains the Senate's tradition that if you don't
agree with the Chief Justice, you can overrule him. If you have the
votes, you can overrule the Chief Justice and say you disagree with
what the Chief Justice has decided.
But it would give this decision to a neutral party. That right is
extended to both parties, who will be done in line with the schedule
that the majority leader has set out. It is not the schedule we want.
We still don't think it makes any sense to have the trial and then
decide our witnesses. But if we are going to have to do it that way,
and it looks like we are, at least let's have a neutral arbiter
decide--much as he may loathe the task--whether a witness is relevant
or a witness is not.
We would hope that if there is nothing else we can agree on tonight,
that we could agree to allow the Chief Justice to give us the benefit
of his experience in deciding which witnesses are relevant to this
inquiry and which witnesses are not.
With that, I reserve the balance of my time.
The CHIEF JUSTICE. Mr. Sekulow.
Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the Senate, and
with no disrespect to the Chief Justice, this is not an appellate
court. This is the U.S. Senate. There is not an arbitration clause in
the U.S. Constitution. The Senate shall have the sole power to try all
impeachments. We oppose the amendment.
We yield our time.
The CHIEF JUSTICE. Mr. Schiff, you have 57 minutes remaining.
Mr. Manager SCHIFF. Well, this is a good note to conclude on because
don't let it be said we haven't made progress today.
The President's counsel has just acknowledged for the first time that
this is not an appellate court. I am glad we have established that.
This is the trial, not the appeal, and the trial ought to have
witnesses and the trial should be based on the cold record from the
court below, but there is no court below, because, as the counsel has
just admitted, you are not the appellate court.
But I think what we have also seen here tonight is, they not only
don't want you to hear these witnesses, they don't want to hear them
live. They don't want even really to hear them deposed. They don't want
a neutral Justice to weigh in because if the neutral Justice weighs in
and says: You know, pretty hard to argue that John Bolton is not
relevant here, pretty hard to argue that Mick Mulvaney is not relevant
here--I just watched that videotape where he said he discussed this
with the President. They are contesting it. Pretty relevant.
What about Hunter Biden? Hunter Biden is probably the real reason
they don't want the Chief Justice to have to rule on the materiality of
a witness, right? What can Hunter Biden tell us about why the President
withheld hundreds of millions of dollars from Ukraine? I can tell you
what he can tell us--nothing. What does Hunter Biden know about why the
President wouldn't meet with President Zelensky? He can't tell us
anything about that. What can he tell us about these Defense Department
documents or OMB documents? What can he tell us about the violation of
the law, withholding this money? Of course he can't tell us anything
about that because his testimony is immaterial and irrelevant. The only
purpose in calling him is to succeed at what they failed to do earlier
in this whole scheme, and that is to smear Joe Biden by going after his
son.
We trust the Chief Justice of the Supreme Court to make that decision
that he is not a material witness. This isn't like fantasy football
here. We are not making trades--or we shouldn't be. We will trade you
one completely irrelevant, immaterial witness who allows us to smear
the President's opponent in exchange for ones who are really relevant
whom you should hear. Is that a fair trial?
If you can't trust the Chief Justice, appointed by a Republican
President, to make a fair decision about materiality, I think it
betrays the weakness of your case.
Look, I will be honest. There has been some apprehension on our side
about this idea, but we have confidence that the Chief Justice would
make a fair and impartial decision and that he would do impartial
justice, and it is something that my colleagues representing the
President don't. They don't. They don't want a fair judicial

[[Page S431]]

ruling about this. They don't want one that you could overturn because
they don't want a fair trial.
And so we end where we started--with one party wanting a fair trial
and one party that doesn't; one party that doesn't fear a fair trial
and one party that is terrified of a fair trial.
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 CHIEF JUSTICE. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 53, nays 47, as follows:

[Rollcall Vote No. 25 Leg.]

YEAS--53

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. McCONNELL. Mr. Chief Justice.
The CHIEF JUSTICE. The majority leader is recognized.
Mr. McCONNELL. Mr. Chief Justice, I would like to say, on behalf of
all of us, we want to thank you for your patience.
(Applause.)
The CHIEF JUSTICE. Comes with the job. Please.

=========================== NOTE ===========================

On page S431, January 21, 2020, first column, the following
appears: Mr. McCONNELL. Mr. Chief Justice, I would like to say, on
behalf of all of us, we want to thank you for your
patience.(Applause.)

The Record has been corrected to read: Mr. McCONNELL. Mr. Chief
Justice, I would like to say, on behalf of all of us, we want to
thank you for your patience. (Applause.) The CHIEF JUSTICE. Comes
with the job. Please.

========================= END NOTE =========================

Mr. McCONNELL. On scheduling, assuming there are no more amendments,
the next vote will be on adoption of the resolution, and then all
Senators should stay in their seats until the trial is adjourned for
the evening.
The CHIEF JUSTICE. The question is on adoption of S. Res. 483.
Mr. THUNE. Mr. Chief Justice, I ask for yeas and nays.
The CHIEF JUSTICE. 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 other Senators in the Chamber
desiring to vote?
The result was announced--yeas 53, nays 47, as follows:

[Rollcall Vote No. 26 Leg.]

YEAS--53

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 CHIEF JUSTICE. The yeas are 53, and the nays are 47.
The resolution (S. Res. 483) was agreed to.
(The resolution is printed in today's Record under ``Submitted
Resolutions.'')

____________________

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

RECESS SUBJECT TO THE CALL OF THE CHAIR; Congressional Record Vol. 166, No. 12 (Senate - January 21, 2020)

Text available as:

RECESS SUBJECT TO THE CALL OF THE CHAIR; Congressional Record Vol. 166, No. 12
(Senate - January 21, 2020)