TRIAL OF DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES; Congressional Record Vol. 166, No. 20
(Senate - January 30, 2020)

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[Pages S693-S739]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        TRIAL OF DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES

  The CHIEF JUSTICE. The Senate will convene as a Court of Impeachment.
  The Chaplain will lead us in prayer.


                                 prayer

  The Chaplain, Dr. Barry C. Black, offered the following prayer:
  Let us pray.
  Eternal Lord God, send Your Holy Spirit into this Chamber. Permit our 
Senators to feel Your presence during this impeachment trial. 
Illuminate their minds with the light of Your wisdom, exposing truth 
and resolving uncertainties. May they understand that You created them 
with cognitive capabilities and moral discernment to be used for Your 
glory. Grant that they will comprehend what really matters, separating 
the relevant from the irrelevant. Lord, keep them from fear, as they 
believe that Your truth will triumph through them. Eliminate discordant 
static with the music of Your wisdom.
  We pray in Your great Name. Amen.


                          Pledge of Allegiance

  The Chief Justice led the Pledge of Allegiance, as follows:

       I pledge allegiance to the Flag of the United States of 
     America, and to the Republic for which it stands, one nation 
     under God, indivisible, with liberty and justice for all.


                              The Journal

  The CHIEF JUSTICE. The Senators will please be seated.
  If there is no objection, the Journal of proceedings of the trial is 
approved to date.
  The Deputy Sergeant at Arms will make the proclamation.
  The Deputy Sergeant at Arms, Jennifer Hemingway, made the 
proclamation as follows:

       Hear ye! Hear ye! Hear ye! All persons are commanded to 
     keep silence, on pain of imprisonment, while the Senate of 
     the United States is sitting for the trial of the articles of 
     impeachment exhibited by the House of Representatives against 
     Donald John Trump, President of the United States.

  The CHIEF JUSTICE. The majority leader is recognized.


                           Order of Procedure

  Mr. McCONNELL. Mr. Chief Justice, the Senate will conduct another 
question and answer period today. We were able to get through nearly 
100 questions yesterday. Senators posed constructive questions, and the 
parties were succinct and responsive. I would like to compliment all 
who participated yesterday.
  We will again break every 2 to 3 hours and look to take a break for 
dinner around 6:30.
  We have been respectful of the Chief Justice's unique position in 
reading our questions. I want to be able to continue to assure him that 
that level of consideration for him will continue.
  The CHIEF JUSTICE. Thank you.
  Mrs. MURRAY. Mr. Chief Justice.
  The CHIEF JUSTICE. The Senator from Washington.
  Mrs. MURRAY. Mr. Chief Justice, I send a question to the desk for the 
House managers.
  The CHIEF JUSTICE. Thank you.
  Senator Murray asks the House managers:

       Yesterday, when asked about why the House did not amend or 
     reissue subpoenas after it passed its resolution authorizing 
     its impeachment inquiry, the House Managers touched upon the 
     House having the sole Power of Impeachment as specified by 
     Article I of the Constitution. Could you further elaborate as 
     to why that authority controls despite any arguments brought 
     forth by members of the defense team contesting the validity 
     of those subpoenas?

  Ms. Manager LOFGREN. Mr. Chief Justice and Senators, that is a good 
question.
  The answer is that these were validly issued subpoenas under the 
House rules. The White House argument to the contrary is wrong, and it 
would have profound negative implications for how Congress and our 
democracy function.
  On January 9, 2019, the House adopted its rules, like we do every 
Congress, and these rules gave the committee the power to issue 
subpoenas. They are not ambiguous rules. Here is the relevant portion 
of rule XI on slide 55: The House's standing rules give each committee 
subpoena power ``for the purpose of carrying out any of its functions 
and duties'' as it considers necessary. This investigation began on 
September 9, before the Speaker's announcement on September 24 that it 
would become part of the impeachment inquiry umbrella.
  The President doesn't dispute that the subpoenas issued by these 
committees were fully within their respective jurisdiction. The 
argument is that somehow, by declaring that this investigation also 
falls under an inquiry to consider Articles of Impeachment, which gives 
Congress actually greater authority, somehow it nullifies the 
traditional oversight authority. And this just doesn't make any sense.
  The President counters that we have to take a full vote on 
impeachment first because that is what has been done in the past. In 
the Nixon inquiry, however, the Judiciary Committee needed a House 
resolution to delegate subpoena power, and that is different than the 
Committee's standing rules today.
  The President actually compels the opposite conclusion. Several 
Federal judges have been investigated and impeached and convicted in 
the Senate without the House having ever taken an official vote to 
authorize the inquiry, and a Federal court recently confirmed there was 
no need for a formal vote of the full House to commence impeachment 
proceedings.
  Even assuming a House vote was necessary, there was a vote. The text 
of H.

[[Page S694]]

Res. 660 declared that the six investigative committees of the House 
were directed to continue their ongoing investigations as part of the 
existing House of Representatives inquiry into whether there was 
sufficient grounds for the House of Representatives to exercise its 
constitutional power to impeach. And the committee report, which 
accompanies the resolution, specifically described the subpoenas that 
had been issued by the investigating committees and said ``all 
subpoenas to the executive branch remain in full force.''
  So why didn't the House committee just reissue these subpoenas after 
the resolution? The short answer is they didn't need to. The subpoenas 
were already fully authorized.
  In any event, even after the resolution passed, the committees issued 
subpoenas to Mick Mulvaney, Robert Blair, and four other witnesses, and 
the President continued to block those subpoenas. The argument about a 
full House vote really is just an excuse about President Trump's 
obstruction. The President refused to comply with the House subpoenas 
before the House vote and after the House vote. The only logical 
explanation is the one that President Trump gave us all along: He was 
determined to fight all the subpoenas because, in President Trump's 
view, according to what he said, he can do what he wants.
  That is not what the constitutional Republic entrusted to us by the 
Founders had in mind. This argument doesn't just apply to impeachment. 
It would apply to ordinary oversight investigations. And it doesn't 
just apply to the House. It would also apply to the Senate.
  By sanctioning the President's blanket obstruction, the Senate would 
be curtailing its own subpoena power in the future, as well as the 
House's, and the oversight obligation that we have, as we now know it, 
would be permanently altered.
  I yield back.
  The CHIEF JUSTICE. Thank you, Ms. Manager.
  Mr. PAUL. Mr. Chief Justice.
  The CHIEF JUSTICE. The Senator from Kentucky.
  Mr. PAUL. I have a question to present to the desk for the House 
Manager Schiff and for the President's counsel.
  The CHIEF JUSTICE. Thank you.
  The Presiding Officer declines to read the question as submitted.
  The CHIEF JUSTICE. The Senator from Wisconsin.
  Ms. BALDWIN. Mr. Chief Justice, I send a question to the desk.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Baldwin is addressed to the House managers:

       Given that the White House Counsel couldn't answer Senator 
     Romney's question that asked for the exact date the President 
     first ordered the hold on security assistance to Ukraine, 
     what witness or witnesses could answer Senator Romney's 
     question?

  Mr. Manager CROW. Thank you, Mr. Chief Justice. Thank you, Senator, 
for the question.
  You are right. They were not able to directly answer that question, 
and we believe that there is a tremendous amount of material out there 
in the form of emails, text messages, conversation, and witness 
testimony that can shed additional light on that, including an email 
from last summer between Mr. Bolton and Mr. Blair, where we know from 
witness testimony this issue was discussed.
  What we do know is from multiple witnesses. Ukrainian officials knew 
that President Trump had placed a hold on security assistance soon 
after it was ordered in July of 2019. So we know that not only did U.S. 
officials know about it and OMB communicated about it, Ukrainians knew 
about it as well.
  We know from former Deputy Foreign Minister of Ukraine, Olena 
Zerkal--she stated publicly, in fact, that the Ukrainian officials knew 
about it and had found out about it in July. We also know from the 
testimony of Laura Cooper that her staff received two emails from the 
State Department on July 25 revealing that the Ukrainian Embassy was 
``asking about security assistance'' and that ``the Hill knows about 
the FMS situation to an extent and so does the Ukrainian embassy.'' 
That was on July 25, the same day as President Trump's call with 
President Zelensky.
  What we also know is that career diplomat, Catherine Croft, stated 
that she was ``very surprised at the effectiveness of my Ukrainian 
counterparts' diplomatic tradecraft, as in to say they found out very 
early on or much earlier than I expected them to.''
  We also know that LTC Alexander Vindman testified that by mid-August 
he was getting questions from Ukrainians about the status of security 
assistance. So there is a lot of evidence surrounding it.
  The administration continues to obstruct wholly our efforts to get 
the emails and correspondence that we have asked for. That obviously 
can be remedied by this body with the appropriate subpoenas; namely, a 
subpoena to Ambassador Bolton to testify and a subpoena to the State 
Department--the Department of State, the Department of Defense, and 
others to actually provide that material.
  The last thing I would like to say is, last evening, counsel for the 
President was asked the question about why did the hold for Ukraine 
differ from holds in the Northern Triangle and other holds like 
Afghanistan. He provided an explanation that I am still trying to wrap 
my brain around because he seems to be the only person in the 
administration that actually has an explanation. As far as I could 
tell, the explanation was somewhere along the lines of one was public, 
trying to put public pressure on the countries in question, and one was 
not. It was a private conversation, a private effort to put pressure.
  If that were true, then, of course, there would be plenty of 
evidence, plenty of emails, text messages, and other correspondence 
within the entire interagency process that we know is robust that would 
illustrate that to be the case, but they have failed to provide any 
evidence to corroborate that.
  Let me finish with this. I happen to know that a lot of people in 
this Chamber, a lot of people in the Chamber on the other side of the 
Capitol, including me, have often described much consternation about 
redtape and bureaucracy and layers of government that run too slow. And 
I sometimes share that concern, right, that sometimes it takes a long 
time. There are memos for everything, emails for everything. There are 
paper trails for everything in this town. I think that is true with 
respect to this issue, and it is time that we actually see that 
information so we can get to the bottom of what actually happened. This 
body could get that information.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The Senator from Pennsylvania.
  Mr. TOOMEY. Mr. Chief Justice, I send a question to the desk on 
behalf of myself and Senators Sasse, McSally, Crapo, Thune, Young, 
Ernst, and Braun.
  The CHIEF JUSTICE. The question from Senator Toomey and others is for 
counsel for the President:

       Given that the election of the president is one of the most 
     significant political acts in which we as citizens engage in 
     our democratic system, how much weight should the Senate give 
     to the fact that removing the president from office and 
     disqualifying him from ever holding future federal office 
     would undo that democratic decision and kick the President 
     off the ballot in this year's election?

  Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the Senate.
  One of the concerns that we have raised throughout this process over 
the last several months, going back to the time when the House was 
dealing with this in their various committees, is we are in an election 
year. There are some in this room that are days away from the Iowa 
caucuses taking place. So we are discussing the possible impeachment 
and removal of the President of the United States not only during 
election season, in the heart of the election season. And I think that 
this does a disservice to the American people.
  Again, we think the basis upon which this has moved forward is 
irregular, to say the least. But I do think it complicates the matter 
for the American people that we are literally at the dawn of a new 
season of elections. I mean, we are at that season now, and yet we are 
talking about impeaching a President.

  And I want to tie this into the urgency that was so prevalent in 
December with my colleagues, the managers. It was so urgent to move 
this forward that they had to do it by mid-December, before Christmas, 
because national security was at stake, and then they waited 33 days to 
bring it here. And now they are asking you to do all the

[[Page S695]]

investigation, although they say they proved their case but still need 
more to prove it.
  Whereas, we believe--and I want to be clear here--that their entire 
process was corrupt from the beginning, and they are just putting it on 
this body. But to do it while the American people are selecting 
candidates for nomination to be the head of their party, to run as 
President of the United States--some of you in this very room--and to 
talk about the removal of a President of the United States, I think 
that is all part and parcel of the same pattern and practice of 
irregularities that have taken place with this impeachment proceeding 
since the beginning. The Speaker allowed the articles to linger. It was 
such a nationally urgent matter that they could linger for a month.
  So we think that this points to the exact problem of what is taking 
place here and that is, as my colleague Mr. Cipollone said, this is 
really taking the vote away from the American people.
  Thank you, Mr. Chief Justice.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from Montana.
  Mr. TESTER. Mr. Chief Justice, I send a question to the desk for the 
House managers.
  The CHIEF JUSTICE. Thank you.
  Senator Tester asks the House managers:

       Yesterday Mr. Dershowitz stated, ``If a President does 
     something which he believes will help him get elected in the 
     public interest that cannot be the kind of quid pro quo that 
     results in impeachment.'' Do you believe there is any limit 
     to the type or scope of quid pro quo a sitting President 
     could engage in with a foreign entity, as long as the intent 
     of the sitting President is to get reelected in what he or 
     she believes is in the public's best interest?



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

  
  On page S695, January 30, 2020, first column, the following 
appears: Senator TESTER asks the House managers: Yesterday Mr. 
Derschowitz stated, ``If a President does something which he 
believes . . .
  
  The online Record has been corrected to read: Senator TESTER 
asks the House managers: Yesterday Mr. Dershowitz stated, ``If a 
President does something which he believes . . .


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


  Mr. Manager SCHIFF. Mr. Chief Justice, Senator.
  There is no limiting principle to the argument that we heard last 
night from the President's team; that is, if there is a quid pro quo 
that the President believes will help him get reelected and he believes 
his reelection is in the national interest, then it doesn't matter how 
corrupt that quid pro quo is. It is astonishing that on the floor of 
this body someone would make that argument.
  Now, it didn't begin that way, in the beginning of the President's 
defense, but what we have seen over the last couple days is a descent 
into constitutional madness because that way madness lies. If we are to 
accept the premise that a President, essentially, can do whatever he 
wants, engage in whatever quid pro quo he wants--I will give you this 
if you will give me that to help me get elected. I will give you 
military dollars if you will give me help in my reelection, if you will 
give me illicit foreign interference in our election.
  Now, the only reason you made that argument is because you know your 
client is guilty and dead to rights. That is an argument made of 
desperation.
  Now, what is so striking to me is almost half a century ago we had a 
President who said: ``Well, when the President does it, that means it 
is not illegal.'' That, of course, was Richard Nixon. Watergate is now 
40 to 50 years behind us. Have we learned nothing in the last half 
century? Have we learned nothing at all? It seems like we are back to 
where we were: The President says it is not illegal or Donald Trump's 
version under article II, ``I can do whatever I want,'' or Professor 
Dershowitz' point, if the President believes it helps his reelection, 
it is, therefore, in the national interest; he can do whatever he 
wants.


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

  
  On page S695, January 30, 2020, second column, the following 
appears: . . . says it is not illegal or Donald Trump's version 
under article II, ``I can do whatever I want,'' or Professor 
Derschowitz' point, if the President believes it helps his 
reelection, it is, therefore, in the national interest; he can do 
whatever he wants.
  
  The online Record has been corrected to read: . . . says it is 
not illegal or Donald Trump's version under article II, ``I can do 
whatever I want,'' or Professor Dershowitz' point, if the 
President believes it helps his reelection, it is, therefore, in 
the national interest; he can do whatever he wants.


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


  In fact, much as we thought that we progressed post-Watergate: We 
enacted Watergate reforms; and we tried to insulate the Justice 
Department from interference by the Presidency; we are trying to put an 
end to the political abuses of that Department--as much as we thought 
we enacted campaign finance reforms, we are right back to where we were 
a half century ago. And I would argue, we may be in a worse place 
because this time--this time that argument may succeed.
  That argument--if the President says it, it can't be illegal--failed, 
and Richard Nixon was forced to resign. But that argument may succeed 
here now. That means we are not back to where we were; we are worse off 
than where we are. That is the normalization of lawlessness.
  I would hope that every American would recognize that it is wrong to 
seek foreign help in an American election; that Americans should decide 
American elections. I would hope--and I believe that every American 
understands that, and every American understands that is true for 
Democratic Presidents and Republican ones. I would hope that we would 
understand it. I would hope that this trial would be one conducive of 
the truth.
  The Senator asked what witnesses could shed light on when the 
President ordered the hold and why. Well, we know Mick Mulvaney would. 
That instruction came from OMB. You remember the testimony of 
Ambassador Taylor, the shock that went through the National Security 
Council and the shock he experienced in that video conference when it 
was first announced, and the instruction was, this comes through the 
President's Chief of Staff, OMB, but it is a direct order from the 
President.
  Well, Mick Mulvaney knows when that order went into place and he 
knows why that order went into place and he made that statement 
publicly, which he now wishes to recant. I am sure he got an earful 
from the President after he did, but, apparently, it doesn't matter. 
None of that matters because if the President believes it is in his 
interest, it is OK.
  Now, there was an argument also, what if it was a credible reason? Of 
course, there is no evidence that this was a credible reason to 
investigate the President's political rival, but let's say it was a 
credible reason; does that make it right?
  What President is not going to think he has a credible reason to 
investigate his opponent? What President is going to think he doesn't 
have a credible reason or wouldn't be able to articulate one or come up 
with some fig leaf?
  They compounded the dangerous argument that they made that no quid 
pro quo is too corrupt if you think it will help your reelection. They 
compounded it by saying, if what you want is to target your rival, it 
is even more legitimate. That way, madness lies.
  The CHIEF JUSTICE. The Senator from North Dakota.
  Mr. CRAMER. I send a question to the desk on behalf of myself and 
Senator Young.
  The CHIEF JUSTICE. Thank you.
  The question from Senators Cramer and Young is for the counsel for 
the President:

       Manager Schiff regularly states that if the President is 
     innocent he would agree to all of the witnesses and documents 
     that the Managers want. Is the President the first innocent 
     defendant not to waive his rights?

  Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for that 
question because the answer is, obviously, no. The President is not the 
first innocent defendant who decided not to waive his rights, and I 
think it is striking and shocking that it is one of the arguments that 
has been repeatedly deployed by the House managers throughout these 
proceedings.
  You heard Manager Nadler say only the guilty hide evidence, only the 
guilty don't respond to subpoenas, and Manager Schiff say that this is 
not the way innocent people act. Well, of course, that is contrary to 
the very spirit of our American justice system, where people have 
rights, and asserting those rights cannot be interpreted as an 
indication of guilt. That is expressly forbidden by the laws and by the 
Constitution.
  The Supreme Court explained in Bordenkircher v. Hayes--a case that is 
cited in our trial memorandum--that the very idea of punishing someone, 
which is what the House managers are attempting to do here with their 
obstruction of Congress charge--they said that if the President insists 
on the constitutional prerogatives of his office; if the President 
insists that, like virtually every President--at least since Nixon and 
some going further back than that--he is going to assert the immunity 
of his senior advisers to compel congressional testimony; if he is 
going to assert those rights grounded in the separation of powers and 
essential for protecting constitutionally based executive branch 
confidentiality interests, we are going to call that obstruction of 
Congress and impeach him.
  It is this fundamental theme running throughout both their 
obstruction charge and their arguments generally here that if the 
President stands on his constitutional rights--if he tries to

[[Page S696]]

protect the institutional prerogatives of his office, which he is duty-
bound to do for future occupants of that office--that it is somehow an 
indication of guilt and shows that he ought to be impeached.
  That is fundamentally antithetical to the American system of justice 
and to our principles of due process, to our principles of 
acknowledging that rights can be defended, that rights exist to be 
defended, and that asserting those rights cannot be treated either as 
something punishable or as evidence of guilt.
  There would be a long line of past Presidents--as Professor 
Dershowitz pointed out, there are a lot of Presidents who have been 
accused of abuse of power. There would also be a long line of 
Presidents who could have been impeached for ``obstruction of 
Congress'' if every time a President insisted upon the prerogatives of 
the office of the Presidency and insisted on defending the separation 
of powers, it could be treated as something impeachable and as evidence 
of guilt.
  President Obama himself refused to turn over a lot of documents to 
the House in the Fast and Furious investigation, and his Attorney 
General was held in contempt, but no one thought that it was an 
impeachable offense.
  So the concept of saying that when the President asserts the 
constitutionally grounded prerogatives of his office, that it is 
evidence of guilt is a completely bogus assertion. It is contrary to 
all of the principles of our American justice system and to the 
fundamental principles of fairness, and it ought to be rejected by this 
body.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from Alabama.
  Mr. JONES. Thank you, Mr. Chief Justice. I send a question to the 
desk.
  The CHIEF JUSTICE. Thank you.
  Senator Jones' question is for the House managers:

       Aside from the House's Constitutional impeachment 
     authority, please identify specifically which provision or 
     provisions, if any, in the House rules or a House Resolution 
     authorized the subpoenas issued by the House Committees prior 
     to the passage of House Resolution 660.
       In addition, please list the subpoenas that were issued 
     after House Resolution 660.

  Mr. Manager SCHIFF. Senator, we will compile the list. We don't have 
it accessible at the moment. Oh, we do have it.
  Specifically, the subpoenas that went out after the passage of the 
House resolution were the subpoena to John Eisenberg and the subpoenas 
to Brian McCormack, Robert Blair, Michael Ellis, Preston Wells 
Griffith, and Mick Mulvaney.
  Let me underscore something that my colleague Manager Lofgren had to 
say, and let me break this down, if I can, in very practical terms.
  What is the practical import of what counsel for the President would 
argue? It is this: Let's say that a Democrat is elected in November, 
and let's say that any one of you who chairs a committee in the Senate 
determines that you think that the next President is engaged in 
something questionable, maybe even in some wrongdoing, and you begin an 
investigation. I would imagine that in your Senate rules, like in our 
House rules--and it is House rule X, Senator, that has the specific 
language authorizing the issuance of subpoenas as a part of our normal 
oversight responsibility. That power didn't exist at the time of 
Watergate, so they had to have a separate resolution. But that House 
rule, passed each session, empowers us to issue subpoenas, as committee 
chairs, as part of our oversight jurisdiction.

  So there you are with a Democratic President. You are a chair, and 
you start to do oversight. You issue subpoenas. You start to learn 
more, and what you learn becomes more and more concerning, and you 
issue more subpoenas.
  The administration's effort to cover up its misconduct says: We are 
not going to comply with any of your subpoenas. We are going to fight 
all subpoenas.
  And they come up with one bad-faith excuse after another as to why 
they don't have to comply.
  As you investigate further and you are able to overcome the wall of 
obstruction, then you begin an impeachment inquiry, and that leads to 
the passage of yet another resolution.
  They would argue to you that all of the work you did before you 
determined that it merited potential impeachment must be thrown out, 
that they were perfectly empowered to obstruct you in your oversight 
responsibility, that you must begin with your conclusion and you must 
begin with the conclusion that you were prepared to impeach the 
President before you issued a single subpoena; otherwise, they can say 
whatever you did before you got to that place should be thrown out.
  Now, we did not have the Justice Department do the initial 
investigation here. Why? Because Bill Barr turned it down. The same 
Attorney General that mentioned that July 25 call said there was 
nothing to see here. So there was no DOJ investigation. There was no 
special counsel investigation. It was not as if someone like Ken Starr 
handed us a package and said: Here is the evidence. Now you can take up 
an impeachment resolution because we have done the investigative work. 
No. We had to do that work ourselves.
  They would have you believe that any subpoena you issue as a part of 
your oversight responsibility that, down the road, reveals evidence 
that leads you to embark on an impeachment inquiry must be disregarded. 
That cannot and is not the law. It would render the oversight function 
meaningless.
  Court after court has looked at the Congress's power to issue 
subpoenas, and they have all reached the same conclusions. That is, if 
you have the power to legislate, you have the power to oversee. Here, 
we have a violation of the Impoundment Control Act. That is, Congress 
passes military spending. The President doesn't spend it, and he gives 
no reason. He keeps it a secret. We are investigating that. That can't 
be more squarely within the oversight power of Congress--to find out 
why aid we appropriated was not going out the door.
  They would say: You can't look into that unless you are prepared to 
impeach the President and announce it firsthand. That is the import of 
that argument. It would cripple your oversight capacity, and without 
your oversight capacity, your legislative capacity is crippled. That is 
the real-world import of this legal window dressing. They would strip 
you of your ability to do meaningful oversight.
  Particularly here, where we are talking about the misconduct of an 
impeachable kind and character, it would mean that a President could 
obstruct his own investigation.
  If you need any evidence of his bad faith, which is abundant--of the 
shifting and springing rationalizations and explanations--when we had 
Corey Lewandowski in the Intelligence Committee, they said, under 
instructions of the White House, he wouldn't answer questions because 
they might claim executive privilege. Now, this was someone who had 
never worked for the executive, but they made the claim he might use 
executive privilege.
  The CHIEF JUSTICE. Time is expired.
  Mr. Manager SCHIFF. Thank you.
  The CHIEF JUSTICE. The Senator from Texas.
  Mr. CRUZ. Mr. Chief Justice, I send a question to the desk on behalf 
of myself and Senators Hawley and Graham.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Cruz, along with Senators Hawley and 
Graham, is for both sides--the counsel for the President and the House 
managers:



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

  
  On page S696, January 30, 2020, third column, the following 
appears: The question from Senator Cruz, along with Senators 
HAWLEY and GRAHAM, is for both sides--counsel for the President 
and the House managers.
  
  The online Record has been corrected to read: The question from 
Senator Cruz, along with Senators HAWLEY and GRAHAM, is for both 
sides--the counsel for the President and the House managers.


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


       Yesterday, Manager Demings refused to answer whether Joe 
     Biden sought any legal advice concerning his conflict of 
     interest on Burisma, the corrupt Ukrainian company that was 
     paying his son Hunter $1 million per year.
       USA Today reported that, when asked about it, Vice 
     President Biden said, ``He hadn't spoken to his son Hunter 
     Biden about his overseas business.''
       That account was contradicted by Hunter Biden, who told the 
     New Yorker that he told his father about Burisma, and ``Dad 
     said, `I hope you know what you're doing,' and I said, `I 
     do.' ''
       Why do Joe and Hunter Bidens' stories conflict? Did the 
     House ask either one that question?

  The White House Counsel goes first.
  Ms. Counsel BONDI. Chief Justice, Senators, you heard our answer 
regarding that yesterday, but it is very interesting that he said he 
never spoke to his son about overseas dealings and that his son said 
different things.

[[Page S697]]

  Joe Biden was the point man for Ukraine. The Ukrainians were 
investigating at that time a corrupt company, Burisma, and Zlochevsky, 
its owner--an oligarch--who, by all media accounts, as we have 
discussed, was extremely corrupt.
  Hunter Biden was paid $83,000 a month--a month--to sit on that board 
with having no experience in energy, no experience in the Ukraine, and 
didn't speak the language. We clearly know that he had a very fancy job 
description, and he did none of those things. He attended one or two 
board meetings--one in Monaco. Then he went on a fishing trip with Joe 
Biden's family in Norway.
  The entire time, Joe Biden knows that this oligarch is corrupt. 
Everyone knows that. There are news reports everywhere. No one will 
dispute that. In fact, it raised eyebrows worldwide. Yet the Vice 
President, by his account, never once asked his son to leave the board. 
We wouldn't be sitting here if he did. He never asked his son to leave 
the board. Instead, he started investigating the prosecutor who was 
going after Burisma and this corrupt oligarch, who they say was corrupt 
even by oligarch standards, who had fled the country--fled the 
country--and was living in Monaco.
  He does not ask him to leave the board. He does the opposite.
  In 2015, what does he do? We know by reports he has close contact 
with President Poroshenko. He travels to Ukraine twice. He links it to 
the--he links their aid to the firing.
  Same thing in 2016 at a White House meeting--links the aid to the 
firing of the prosecutor; calls him four times in the 8 days up--
leading to the prosecutor--the prosecutor investigating Hunter Biden. 
Yet he never says that. All cases closed.
  Days before Biden leaves office, he jokes to Poroshenko that he may 
have to call him every couple weeks to check in. Hunter Biden stays on 
that board for 3 years--3 years.
  Then we hear the video of Joe Biden bragging about firing the 
prosecutor, linking it to aid. Then we have a 6-minute phone call.
  Ms. ROSEN. Mr. Chief Justice.
  The CHIEF JUSTICE. I am sorry. The House managers have 2\1/2\ 
minutes.
  Mrs. Manager DEMINGS. Mr. Chief Justice and to our Senators, 
Senators, thank you so much for that question. I know you have asked 
about a conversation between a father and his son, and what I can tell 
you, probably like just about everybody in this Chamber, there are 
probably some conversations that I can't repeat to you about my 
conversations with my son. So I don't know the answer to your question, 
Senator, what that exact conversation was.
  But what I can tell you is this: If we are serious about why we are 
here--and I have no reason to doubt that we are--we are serious about 
seeking the truth because the truth matters, not just for those who 
have paid the price in our history to form a more perfect union and 
protect our democracy, but it is important for our future. And in this 
case, if we are serious about that, then I can tell you this: that we 
are serious, then, about hearing from fact witnesses.
  Looking at the Bidens, no matter how many times we call their name, 
we have no evidence to point to the fact that either Biden has anything 
at all to tell us about the President shaking down a foreign power to 
help him cheat in the next election--the President's election trying to 
steal each individual in this country's vote.
  I don't believe either Biden has any information about that, but let 
me tell you who I think does. Maybe we should call Ambassador Bolton. 
If we are serious about the truth, maybe we should call him because we 
have a good idea about what he might say. Or what about Mr. Mulvaney, 
who had day-to-day contact with the principal in our investigation--the 
President of the United States.
  That is not good enough? Well, what about--the question was asked 
about when did we know--or when did the President first put the hold 
on. Well, we do have reports that say on June 19 of 2019, Mr. Blair 
personally instructed the Director of OMB to hold up security 
assistance from Ukraine--over a month before the infamous July 25 call.
  The CHIEF JUSTICE. Thank you, Mrs. Manager Demings.
  Mrs. Manager DEMINGS. Thank you, Mr. Chief Justice.
  The CHIEF JUSTICE. The Senator from Nevada.
  Ms. ROSEN. Mr. Chief Justice, I send a question to the desk.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Rosen is addressed to the House managers:

       Over the course of your arguments, you have tried to make a 
     case that the President put his personal interests over those 
     of the Nation, risking our national security in the process. 
     What precedent do you believe the President's actions set for 
     future Presidents?

  Mr. Manager CROW. Mr. Chief Justice, Senator, thank you for that 
question. It is one that I have wanted to answer for some time now.
  You have heard me speak before about some of my personal experience 
in service to the country, and one thing that experience has taught me 
is that we are strong not just because of the service and the sacrifice 
of our men and women in uniform, which is extreme and pure in all of 
its sense and something that I think everybody in this Chamber actually 
appreciates and respects, but we are also strong because we have 
friends. We are strong because America doesn't go it alone.
  You know, when I was in Iraq and Afghanistan, I worked frequently 
with Afghan Army partners, Iraqi Army partners and others, not because 
it was important but because it was essential. We couldn't accomplish 
the mission without it. But if those partners feel like our policies--
what we say publicly--don't matter; if they feel like we are not a 
reliable and predictable partner; if they feel like the American 
handshake isn't worth anything, then they will not stand by us. They 
will not stand by us.
  For over 70 years, since the end of World War II, the partnerships, 
the alliances that we have built, that we have strived to create, that 
have ushered in an unprecedented period of peace and prosperity 
throughout the world, will start to fray because the American handshake 
will not matter. Ukraine has started to learn that.
  Our 68,000 troops throughout Europe deserve better because every day, 
they get up and they do their job--the job we have asked them to do--
and they rely on our consistency, our predictability. They rely on the 
interest being in the national interest, not the whims and the personal 
interest of the President, whether that be President Trump or any other 
President.
  It will continue to call into question our broader alliances, and it 
will send a message that the American handshake doesn't matter.
  We have a slide that shows the evolution of some of the different 
arguments that we have seen on the other side that I think is important 
to see.
  (Text of Videotape presentation:)

       President TRUMP. Russia, if you are listening, I hope you 
     are able to find the 30,000 emails that are missing. I think 
     you will probably be rewarded mightily by our press. Let's 
     see if that happens.
       Mr. STEPHANOPOULOS. The campaign this time around, if 
     foreigners, if Russia and China, if someone else offers 
     information on an opponent, should they accept it or should 
     they call the FBI?
       President TRUMP. I think maybe they do both. I think you 
     might want to listen. There is nothing wrong with listening. 
     If somebody called from a country--Norway: We have 
     information on your opponent--I think I would want to hear 
     it.
       Mr. STEPHANOPOULOS. You want that kind of interference in 
     our elections?
       President TRUMP. It's not an interference. They have 
     information. I think I would take it.
       Unidentified SPEAKER. Let's move to the third excerpt there 
     related to Vice President Biden, and it says, ``The other 
     thing, there's a lot of talk about Biden's son--'' this is 
     President Trump speaking--``that Biden stopped the 
     prosecution and a lot of people want to find out about that 
     so that whatever you can do with the Attorney General would 
     be great. Biden went around bragging that he stopped the 
     prosecution so if you can look into it . . . It sounds 
     horrible to me.''
       President TRUMP. Well, I would think that if they were 
     honest about it, they'd start a major investigation into the 
     Bidens. It's a very simple answer.
       President TRUMP. If we feel there is corruption, like I 
     feel there was in the 2016 campaign, there was tremendous 
     corruption against me--if we feel there's corruption, we have 
     a right to go to a foreign country.
       President TRUMP. And by the way, likewise, China should 
     start an investigation into the Bidens because what happened 
     in China is just about as bad as what happened with--with 
     Ukraine.

  Mr. Manager CROW. The American people deserve to know what happened.

[[Page S698]]

The American people deserve to know when they go to bed tonight that 
there is a President that has their interests in mind, that will put 
the national security of the country above his own political self-
interest. The American people deserve answers. And, yes, it is still a 
good time to call Ambassador Bolton to testify.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The Senator from Ohio.
  Mr. PORTMAN. Mr. Chief Justice, I send a question to the desk on 
behalf of myself, Senators Toomey, Cornyn, Crapo, Ernst, and Moran.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Portman and the other Senators is for the 
counsel for the President:

       I have been surprised to hear the House managers repeatedly 
     invoke constitutional law Professor Jonathan Turley to 
     support their position, including playing a part of a video 
     of him. Isn't it true that Professor Turley opposed this 
     impeachment in the House and has also said that abuse of 
     power is exceedingly difficult to prove alone without an 
     accompanying criminal allegation, abuse of power has never 
     been the sole basis for a presidential impeachment and was 
     not proven in this case?

  Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for that 
question.
  And that is exactly correct. Professor Turley was very critical of 
the entire process in the House and of the charges that the House--
House Democrats were considering here, both the abuse of power charge 
and the obstruction charge. He explained that this was a rushed 
process; they did not adequately pursue an investigation; that, as the 
Senators point out in the question, abuse of power is an exceedingly 
difficult theory to use to impeach a President, and it has never been 
used without alleging violations of the law. I think that in the 
discussions we have had over the past week and a half, we have pointed 
that out multiple times.
  Every Presidential impeachment in our history, including even the 
Nixon impeachment proceedings, which didn't actually lead to 
impeachment, have used charges that include specific violations of the 
law and the criminal law.
  Andrew Johnson was charged mostly in counts that involved violation 
of the Tenure of Office Act, which Congress had specifically made 
punishable by fine and imprisonment and even wrote into the statute 
that violation would constitute either a high crime or a high 
misdemeanor--one of those terms--to make it clear that it was going to 
be used to trigger an impeachment.
  In the proceedings in the Nixon impeachment inquiry, each of the 
Articles of Impeachment there--except for the obstruction of Congress 
charge is sort of treated separately on the obstruction theory--
included specific violations of law. There were specific violations 
alleged in the second Article of Impeachment, which is often sort of 
referred to loosely as the abuse of power article. It wasn't actually 
entitled ``abuse of power.'' It didn't charge abuse of power. The 
specifications there were violations of the law--violating the 
constitutional rights of the citizens, violating the laws governing 
executive branch agencies, unlawful electronic surveillance, using the 
CIA and others. Specific violations of law.
  Clearly, in the Clinton impeachment, President Clinton was impeached 
for perjury and obstruction of justice. Those are crimes.
  While Professor Turley does not take the view that a crime is 
necessarily required, he pointed out here that there was not nearly a 
sufficient basis and not nearly a sufficient record compiled in the 
House of Representatives to justify an abuse of power charge.
  He also was very critical of the obstruction of Congress theory, and 
he pointed out that it would be an abuse of power by Congress under 
these circumstances where Congress has simply demanded information, 
gotten a refusal from the executive branch based on constitutionally 
based prerogatives of the executive or refusal to provide that 
information, then to simply go straight to impeachment without going 
through the accommodations process, without considering contempt, 
without going to the courts. That is Professor Turley's view on how 
incrementally the House of Representatives would have to proceed if 
they were going to try to reach ultimately some theory of obstruction 
of Congress.
  So to cite Professor Turley, it is true, in his academic writing and 
in his testimony, he did not adopt the view that you must have a crime 
and only a crime as the charge for an Article of Impeachment. He still 
thought that neither of the Articles of Impeachment here could be 
justified or sufficient or could be used to impeach the President--both 
the abuse of power article and the obstruction article. So taking 
snippets out of what he said really does an injustice to the totality 
of his testimony, because the totality of his testimony was entirely 
against what the House ended up doing.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from Ohio.
  Mr. BROWN. Mr. Chief Justice, on behalf of Senator Wyden and myself, 
I send a question to the desk for the House managers.
  The CHIEF JUSTICE. Thank you.
  Senators Brown and Wyden ask the following question to the House 
managers:

       During yesterday's proceedings, the President's counsel 
     failed to give an adequate response to a question related to 
     whether acceptance of information provided by a foreign 
     country to a political campaign or candidate would constitute 
     a violation of the law and whether offers of such information 
     should be reported to the FBI. FBI Director Christopher Wray, 
     who was appointed by President Trump, has said ``if any 
     public official or member of any campaign is contacted by any 
     nation-state about influencing or interfering with our 
     election, then that [is] something that the FBI would want to 
     know about,'' and ``we'd like to make sure people tell us 
     information promptly so that we can take appropriate steps to 
     protect the American people.'' If President Trump remains in 
     office, what signal does that send to other countries intent 
     on interfering in our elections in the future, and what might 
     we expect from those countries and the President?

  Mr. Counsel JEFFRIES. Mr. Chief Justice, distinguished Members of the 
Senate, thank you for that question.
  I will take the last part first. It would send a terrible message to 
autocrats and dictators and enemies of democracy and the free world for 
the President and his team to essentially put out there for all to 
consume that it is acceptable in the United States to solicit foreign 
interference in our free and fair elections or accept political dirt 
simply to try to cheat in the next election.
  I was certainly shocked by the comments from the President's Deputy 
White House Counsel yesterday, right here on the floor, when he said: 
``I think that the idea that any information that happens to come from 
overseas is necessarily campaign interference is a mistake.''
  No. It is wrong. It is wrong in the United States of America.
  He also added ``Information that is credible, that potentially shows 
wrongdoing by someone that happens to be running for office, if it's 
credible information, is relevant information for the voters to know . 
. . to be able to decide on who is the best candidate. . . . ''
  This is not a banana republic. It is the democratic Republic of the 
United States of America. It is wrong.
  The single most important lesson that we learned from 2016 was that 
nobody should seek or welcome foreign interference in our elections. 
But now we have this President and his counsel essentially saying it is 
OK.
  It is not OK. It strikes at the very heart of what the Framers of the 
Constitution were concerned about--abuse of power, betrayal by the 
President of his oath of office, corrupting the integrity of our 
democracy and our free and fair elections by entangling oneself with 
foreign powers. That is at the heart of what the Framers of the 
Constitution were concerned about.
  Don't just trust me. We have several folks who have made this 
observation. The FBI Director--the Trump FBI Director--said that the 
FBI would want to know about any attempt at foreign election 
interference.
  The Chair of the Federal Elections Commission also issued a statement 
reiterating the view of U.S. law enforcement. She said in part:

       Let me make something 100 percent clear to the American 
     public and anyone running for [public] office: It is illegal 
     for any person to solicit, accept, or receive anything of 
     value from a foreign national in connection with a U.S. 
     election.

  This is not a novel concept. Election intervention from foreign 
governments

[[Page S699]]

has been considered unacceptable since the beginning of our Nation. It 
is wrong, it is corrupt, it is lawless, it is an abuse of power, it is 
impeachable, and it should lead to the removal of President Donald John 
Trump.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The Senator from Missouri.
  Mr. HAWLEY. I send a question to the desk on behalf of myself and on 
behalf of Senator Lee.
  The CHIEF JUSTICE. Thank you.
  The question from Senators Hawley and Lee is for counsel to the 
President:

       The U.S. Federal Courts have held, most prominently in the 
     Blagojevich case, that it is not unlawful for a public 
     official to condition his official acts on official acts 
     performed by another public officer. Is there any application 
     to the allegations against President Trump?

  Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for that 
question.
  I think an important threshold point to make here is that we are not 
even in the realm of exchanging official acts, because there has been 
no proof of a quid pro quo here. We are not in the realm of a situation 
where there is one official act being traded for another.
  I think that we have gone through the evidence that makes it quite 
clear that both, with respect to a meeting with the President--a 
bilateral meeting--and with respect to the temporary pause of security 
assistance, the evidence just doesn't stack up to show that President 
Trump linked either of those. Both took place--the meeting and the 
release of the aid--without Ukrainians doing anything, announcing or 
beginning any investigations. There is nothing in the transcript 
linking them to a quid pro quo. The Ukrainians didn't even know that 
there had been a temporary pause on the aid, and I could go on with a 
list of points on that.

  I think if there were any application hypothetically, it would come 
in the realm of the fact that in foreign policy there are situations 
where there can be situations where one government wants some action 
from another and wants that action from another in a way that would 
condition other policies of one country.
  You can say: We would like you--and this happens. For example, with 
the Northern Triangle countries: We want you to do more to stop the 
flow of illegal immigration. We are going to be conditioning some of 
our policies toward you, unless and until you do a better job stopping 
the flow of illegal immigration. It is a real problem on our southern 
border.
  That happens all the time, and when there is something legitimate to 
look into, there could be a situation where the United States would 
say: You've got to do better on corruption. You've got to do better on 
these specific areas of corruption, or we are not going to be able to 
keep the same relationship with you.
  One example like that, I believe it was pointed out that aid was held 
up to Afghanistan. President Trump held up aid to Afghanistan 
specifically because of concerns about corruption. In situations like 
that, there would be nothing wrong whatsoever with conditioning one 
policy approach on a foreign country modifying their policy to be more 
in line, to attune more directly to U.S. foreign interests. That is 
what foreign policy is all about. That could arise in situations of 
even calling for investigations.
  I think it is interesting to point out that in May of 2018, three 
Democratic Senators sent a letter to the then-prosecutor in Ukraine 
suggesting that we have heard some things that you might not be 
cooperating with the Mueller investigation. And there was sort of an 
implicit indication behind the letter that there is not going to be as 
much support for Ukraine. This is something that is important. You have 
got to be helping with that investigation.
  There is nothing wrong with encouraging the prosecutor general to 
assist with something important to the United States. That is part of 
foreign policy. It happens all the time. So to the extent that the 
Blagojevich case is relevant, it is in the general concept that were 
there some linkage between ``we want your country to pursue these 
policies; it is going to affect our policies towards you,'' that is 
entirely legitimate. That is not something that is a violation of any 
law or is improper. Again, coming back to the point here, there is no 
proof of that linkage. There no proof of what we have come to call 
``quid pro quo'' in this case.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from Washington.
  Ms. CANTWELL. Mr. Chief Justice, I send a question to the desk.
  The CHIEF JUSTICE. Thank you.
  Senator Cantwell's question is for the House managers:

       In his opening remarks, Chairman Schiff said the Ukraine 
     scheme was expansive and involved many people. Is there any 
     evidence that Acting White House Chief of Staff Mick 
     Mulvaney, Secretary of State Pompeo, Attorney General Barr or 
     anyone on the outside were involved in this scheme to 
     withhold military aid or obstruction of Congress?

  Mrs. Manager DEMINGS. Mr. Chief Justice and Senator, thank you so 
much for that question.
  If we remember Ambassador Sondland's testimony, where he said, 
``everyone was in the loop,'' we don't just have to take his word for 
it. During his hearing, Mr. Sondland discussed a July 19 email he sent 
to the President's top aides, including Secretary Mike Pompeo, Acting 
Chief of Staff Mick Mulvaney, Mr. Mulvaney's senior adviser, Robert 
Blair, Secretary Rick Perry, and Brian McCormick, Secretary Perry's 
Chief of Staff.
  We should at least start with, if we are serious about getting to the 
truth, issuing a subpoena for State Department emails. If you pay 
attention to the slide, in the email, Sondland stated:

       I talked to Zelensky just now.
       He is prepared to receive POTUS's call. Will assure him 
     that he intends to run a fully transparent investigation and 
     will ``turn over every stone''. He would greatly appreciate a 
     call prior to Sunday so that he can put out some media about 
     a ``friendly and productive call'' (no details). . . .

  Mr. Mulvaney, in the email, acknowledges receipt and responds 
shortly: I asked the NSC to set up the call for tomorrow--6 days before 
President Trump's now infamous July 25th call in which he told 
President Zelensky to conduct investigations into the Bidens and the 
2016 election. Mr. Sondland sent an email to the President's top aides 
updating them on the status of the scheme.
  Again, ``everyone was in the loop.'' On August 11, Ambassador 
Sondland emailed Mr. Brechbuhl to ask him to brief Secretary Pompeo on 
the statement he was negotiating with President Zelensky with the aim 
of ``making the boss happy''--the boss being the President--enough to 
authorize the investigation.
  Ambassador Sondland wrote to Mr. Brechbuhl:

       Kurt and I negotiated a statement from Z--

  Mr. Zelensky.

     to be delivered for our review in a day or two. The content 
     will hopefully make the boss happy enough to authorize an 
     invitation.

  And he is talking about the invitation for a White House Oval Office 
meeting, which we know was much more critical and important than a 
sideline meeting at the U.N.
  Yet, further evidence that ``everyone was in the loop,'' Attorney 
General Barr reportedly responded at some point--there was a New York 
Times article that was done, and Attorney General Barr responded to 
that article by stating that he was aware of DOJ investigations into 
some countries, and that he was concerned President Trump was giving 
world leaders the impression he had undue influence over what would 
ordinarily be independent investigations. He cited conversations the 
President had with leaders of Turkey and China, further demonstrating 
that there was concern about the President abusing the power of his 
office for personal, political reasons. Again, it proves that everybody 
was in the loop, and we should want to subpoena and review those emails 
involving the State Department and others.

  The CHIEF JUSTICE. Thank you, Mrs. Manager.
  Mr. THUNE. Mr. Chief Justice.
  The CHIEF JUSTICE. The Senator from South Dakota.
  Mr. THUNE. I send a question to the desk on behalf of myself and 
Senators Moran, Daines, Ernst, Scott of Florida, and Crapo.
  The CHIEF JUSTICE. Thank you. Senator Thune and the other Senators 
ask the counsel for the President:


[[Page S700]]


  

       On March 6, 2019, Speaker Nancy Pelosi said, ``impeachment 
     is so divisive to the country that unless there's something 
     so compelling and overwhelming and bipartisan, I don't think 
     we should go down that path because it divides the country.'' 
     Alexander Hamilton also warned in Federalist 65 against the 
     ``persecution of an intemperate or designing majority in the 
     House of Representatives'' with respect to impeachment. In 
     evaluating the case against the President, should the Senate 
     take into account the partisan nature of the impeachment 
     proceedings in the House?

  Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice and Members of 
the Senate.
  Absolutely you should take that into account. That is dispositive. 
That should end it. Based on the statements that we heard the last time 
from our friends on the Democratic side, that is a reason why you 
shouldn't have an impeachment. Speaker Pelosi was right when she said 
that. Unfortunately, she didn't follow her own advice.
  We have never been in a situation where we have the impeachment of a 
President in an election year with the goal of removing the President 
from the ballot. As I have said before, that is the most massive 
election interference we have ever witnessed. It is domestic election 
interference; it is political election interference; and it is wrong.
  They don't talk about the horrible consequences to our country of 
doing that, but they would be terrible. They would tear us apart for 
generations, and the American people wouldn't accept it.
  Let me address, in that context, the importance of the vote for their 
inquiry, which also had bipartisan opposition. Now they said: Well, we 
were fine when Speaker Pelosi announced it. We didn't need a vote. The 
subpoenas were authorized.
  Then why did they have a vote? They had a vote because they 
understood they had a big problem that they needed to fix. But what is 
more important about the vote than the procedural issue? The important 
thing about the vote is that if you are going to start an impeachment 
investigation, particularly in an election year, there needs to be 
political accountability to the American people. You can't just go have 
a press conference. If you are going to say that the votes of the 
American people need to be disallowed and that all of the ballots need 
to be torn up, then at the very least you need to be accountable to 
your home district for that decision, and now they are--and now they 
are.
  If the American people decide--if they are allowed to vote--if the 
American people decide that they don't like what has happened here; 
that they don't like the constitutional violations that have happened; 
that they don't like the attack on a successful President for purely 
partisan political purposes, then they can do something about it, and 
they can throw them out. That is why a vote is important.
  We should never even consider removing the name of a President from a 
ballot on a purely partisan basis in an election year. Important? I 
will say it is important. For that reason alone and for the interest of 
uniting our country, it must be rejected.
  Thank you, Mr. Chief Justice.
  The CHIEF JUSTICE. Thank you, counsel.
  Mr. REED. Mr. Chief Justice.
  The CHIEF JUSTICE. The Senator from Rhode Island.
  Mr. REED. Mr. Chief Justice, I send a question to the desk on behalf 
of Senators Duckworth and Harris and myself for the House managers and 
for the President's counsel.
  The CHIEF JUSTICE. Thank you. The question from Senator Reed and the 
other Senators is for both parties, beginning with the House managers:

       It has been reported that President Trump has not paid Rudy 
     Giuliani, his personal attorney, for his services. Can you 
     explain who has paid for Rudy Giuliani's legal fees, 
     international travel, and other expenses in his capacity as 
     President Trump's attorney and representative?

  Mr. Manager SCHIFF. A short answer to the question is, I don't know 
who is paying Rudy Giuliani's fees, and if he is not being paid by the 
President to conduct this domestic political errand for which he has 
devoted so much time, if other clients are paying and subsidizing his 
work in that respect, it raises profound questions--questions that we 
can't answer at this point.
  There are some answers that we do know. As he has acknowledged, he is 
not there to inform policy. So when counsel for the President says this 
is a policy dispute and you can't impeach a President over policy, what 
Rudy Giuliani was engaged in, by his own admission, has nothing to do 
with policy--has nothing to do with policy.
  And let me mention one other thing about this scheme that Giuliani 
was orchestrating and the consequence of the argument that they would 
make that quid pro quos are just fine. Let's say Rudy Giuliani does 
another errand for the President--this time an errand in China--and he 
says to the Chinese: We will give you a favorable deal with respect to 
Chinese farmers as opposed to American farmers. We will betray the 
American farmer in the trade deal, but here is what we want. The quid 
pro quo is we want you to do an investigation of the Bidens. You know 
the one, the one the President has been calling for. They would say 
that is OK. They would say that is a quid pro quo to help his 
reelection. He can betray the American farmer; that is OK. That is 
their argument. Where does that argument lead us? That is exactly the 
kind of domestic, corrupt, political errand that Rudy Giuliani was 
doing gratis, without payment--at least not payment, apparently, from 
the President.

  So who is paying the freight for it? I don't know who is directly 
paying the freight for it, but I can tell you the whole country is 
paying the freight for it because there are leaders around the world 
who are watching this, and they are saying the American Presidency is 
open for business. This President wants our help, and if we help him, 
he will be grateful.
  He will be grateful. Is that the kind of message we want to send to 
the rest of the world? That is the result of normalizing lawlessness of 
the kind that Rudy Giuliani was engaged in.
  One other thing, if I have--my time is not expired.
  The CHIEF JUSTICE. I am sorry; your time is expired. Counsel.


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

  
  On page S700, January 30, 2020, third column, the following 
appears: The CHIEF JUSTICE. I am sorry; your time is expired.
  
  The online Record has been corrected to read: The CHIEF JUSTICE. 
I am sorry; your time is expired. Counsel.


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


  Mr. Counsel SEKULOW. Mr. Chief Justice and Members of the Senate, it 
is hard for me to believe the words that just came out of the manager's 
mouth: ``open for business.'' I will tell you who was open for 
business. You know who was open for business? The Vice President of the 
United States was charged by the then-President of the United States 
with developing policies to avoid and assist in removing corruption 
from Ukraine, and his son was on the board of a company that was under 
investigation for Ukraine, and you are concerned about what Rudy 
Giuliani, the President's lawyer, was doing when he was over trying to 
determine what was going on in Ukraine?
  And by the way, it is a little bit interesting to me--and my 
colleague, the Deputy White House Counsel referred to this. It is a 
little bit ironic to me that you are going to be questioning 
conversations with foreign governments about investigations when three 
of you--three Members of the Senate--Senator Menendez, Senator Leahy, 
and Senator Durbin sent a letter that read something--quickly--like 
this. They wrote the letter to the prosecutor general of Ukraine. They 
said they are advocates--talking about the Congressmen--they are 
``strong advocates for a robust and close relationship with Ukraine 
[and] we believe that our cooperation . . . extend to such legal 
matters, regardless of politics.'' And their concern was ongoing 
investigations and whether the Mueller team was getting appropriate--
appropriate--responses from Ukraine regarding investigations of what? 
The President of the United States. And you are asking about whether 
foreign investigations are appropriate? I think it answers itself.
  Thank you, Mr. Chief Justice.
  The CHIEF JUSTICE. Thank you, counsel.
  Mr. LANKFORD. Mr. Chief Justice.
  The CHIEF JUSTICE. The Senator from Oklahoma.
  Mr. LANKFORD. Mr. Chief Justice, I send a question to the desk on 
behalf of myself, Senator Ernst, and Senator Crapo.
  The CHIEF JUSTICE. Thank you. The question from Senator Lankford and 
the other Senators is for the counsel for the President:

       House managers have described any delay in military aid and 
     State Department funds to Ukraine in 2019 as a cause to 
     believe there was a secret scheme or quid pro quo by the 
     President. In 2019, 86% of the DOD funds were

[[Page S701]]

     obligated to Ukraine in September, but in 2018, 67% of the 
     funds were obligated in September and in 2017, 73% of the 
     funds were obligated in September. In the State Department, 
     the funds were obligated September 30 in 2019, but they were 
     obligated September 28 in 2018. Each year, the vast majority 
     of the funds were obligated in the final month or days of the 
     fiscal year. Was there a national security risk to Ukraine or 
     the United States from the funds going out at the end of 
     September in the 2 previous years? Did it weaken our 
     relationship with Ukraine because the vast majority of our 
     aid was released in September each of the last 3 years?

  Mr. Counsel PHILBIN. Mr. Chief Justice and Senators, thank you for 
that question. And the short, straightforward answer is there was no 
jeopardy to the national security interest of the United States from 
the timing of the release of this money. As the question indicated, the 
vast bulk of the funds in each of the prior 2 fiscal years were also 
obligated in September. So the fact that the funds were released here 
on September 11 and obligated by the end of the fiscal year was 
consistent with the timing in past years.
  There was--and it is also the case that at the end of every fiscal 
year, there is some funding in this Ukrainian military assistance that 
doesn't actually make it out the door. It isn't obligated by the end of 
the fiscal year. We heard the House managers point to the fact that 
Congress had to put something in the continuing resolution, a special 
provision, to get $35 million of the aid extended so it can be used in 
the next fiscal year. My understanding is that every fiscal year there 
is some amount of money. It is not always that same amount, but there 
is some amount of money that that has to be done for every year because 
it doesn't get out the door by the end of the year.
  Now, it is not just from the raw data that we can see that the funds 
went out roughly the same timing toward the end of the year that, 
therefore, it doesn't suggest any great risk to Ukraine or risk to the 
national security of the United States. We know that from testimony as 
well.
  Ambassador Volker testified that the brief pause on the aid was not 
significant, and the Under Secretary of State for Political Affairs, 
David Hale, explained that this is future assistance, and I mentioned 
this the other day. It is not like this money is being spent month by 
month to supply current needs in Ukraine. It is 5-year money. Once it 
is obligated, it can go to U.S. firms for providing materiel to the 
Ukrainians, and it doesn't get spent down finally and materiel shipped 
to Ukraine for a long time. So a delay of 48 or 55 days--depending on 
how you count it--and the money being released before the end of the 
fiscal year ends up having no real effect. It is not current money. It 
is supplying immediate needs.

  Despite what we have heard about the idea that on the frontlines in 
the Donbas, Ukrainian soldiers are being put at risk, that is just not 
accurate.
  And we know that also from Oleg Shevchuk, the Ukrainian Deputy 
Minister of Defense, who gave an interview to the New York Times and 
explained that the hold came and went so quickly that he didn't even 
notice any change.
  And, remember, the Ukrainians didn't even know. President Zelensky 
and his advisers--Yermak and others--have made it abundantly clear. 
There was another interview just the other day with Danylyuk, who--I 
might get his title wrong. I think he was the Foreign Minister at the 
time. But there was an interview just the other day that was published. 
And he explained, again, that they didn't know the aid had been held up 
until the POLITICO article on August 28. And then he said there was a 
panic in Kyiv because they were just trying to figure out what to do. 
Well, within 2 weeks, it had been released.
  And so we have also heard the idea that, well, it was just the fact 
of the delay that gave the Russians a signal, and it gave the 
Ukrainians a signal, and that was what the damage to the national 
security was. But the whole point is, leaders of the Government in 
Ukraine didn't know. It wasn't made public. So they weren't being given 
a signal by that, and the Russians weren't being given a signal by 
that. So that theory for damage to the national security also doesn't 
work.
  There was a pause temporarily so that there could be some assessment 
to address concerns the President had raised. The money was released by 
the end of the fiscal year. There was no damage to the national 
security either in terms of materiel not being available to the 
Ukrainians or in terms of any signal sent to any foreign power. The 
money got out the door roughly the same time as in prior years. A 
little bit more left over at the end that had to be fixed, but there is 
some left over at the end every year that has to be fixed with a rider 
on the next appropriations bill or continuing resolution. So no damage 
whatsoever to the national security of the United States.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from Hawaii.
  Ms. HIRONO. ``Aloha.'' I send a question to the desk for the House 
managers.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Hirono for the House managers reads as 
follows:

       In contrast to arguments by the President's counsel, acting 
     White House Chief of Staff Mick Mulvaney stated that 
     President Trump held up aid to Ukraine to get his 
     politically-motivated investigations. He claimed: ``We do 
     that all the time with foreign policy'' and ``Get over it.'' 
     What was different about President Trump's withholding of aid 
     to Ukraine from prior aid freezes? Are you aware of any other 
     Presidents who have withheld foreign aid as a bribe to 
     extract personal benefits?

  Mr. Manager SCHIFF. Thank you, Senator.
  I will respond to the question, but let me begin with something in 
the category of: You can't make this stuff up.
  Today, while we have been debating whether a President can be 
impeached for essentially bogus claims of privilege for attempting to 
use the courts to cover up misconduct, the Justice Department, in 
resisting House subpoenas, is in court today and was asked: Well, if 
the Congress can't come to the court to enforce subpoenas because, as 
we know, they are in here arguing, Congress must go to court to enforce 
its subpoenas, but they are in the court saying: Congress, thou shall 
not do that, so the judge says: If the Congress can't enforce its 
subpoenas in court, then what remedy is there? And the Justice 
Department lawyers' response is impeachment--impeachment. You can't 
make this up. I mean, what more evidence do we need of the bad faith of 
this effort to cover up?
  I said the other day they are in this court making this argument; 
they are down the street making the other argument. I didn't think they 
would make it on the same day, but that is exactly what is going on.
  Now, in response to the question about how is this aid different, 
this hold different from other holds, it is certainly appropriate to 
ask that question.
  The laws Congress passed authorizing this appropriation did not allow 
for the hold by this President. And as the GAO--the Government 
Accountability Office--found, it violated the law to hold the aid the 
way it did.
  Once the Department of Defense, in consultation with the Department 
of State, certified that Ukraine had met the anti-corruption benchmarks 
required under the law, there was nothing that would allow for a hold. 
The money had to flow.
  And that was intentional. Military assistance to Ukraine is critical 
to our national security. It has overwhelming bipartisan support.
  And recall that in the spring of 2019, the Defense Department 
certified Ukraine had met all of the anti-corruption benchmarks. The 
Department of State sent the Senate a letter saying that the benchmarks 
had been met. It issued a press release saying that the aid was moving 
forward. It began to spend the funds to help Ukraine, but then the 
President stepped in. Without legal authority, he secretly had placed a 
hold on the aid.
  Now, the President's counsel, in their presentation, gives specific 
examples of past holds, as if we cannot distinguish one for a corrupt 
reason and one that is for a policy reason.
  In many of their examples, the law explicitly provided the executive 
branch the authority to pause, reevaluate, or cancel foreign aid 
programs as the situation in a recipient country evolved.
  For example, with regard to foreign assistance to El Salvador, 
Honduras, or Guatemala, the law explicitly allows

[[Page S702]]

the Secretary of State to ``suspend, in whole or in part'' that 
``assistance'' if at any time the Secretary deems ``that sufficient 
progress has not been made by a central government.''
  On a host of priorities, from respecting human rights to upholding 
the law, those are the priorities that you, the Senate, agreed to, and 
the President was required to implement them; similarly, aid to 
Afghanistan, the subject of periodic reevaluations by law. And the law 
explicitly directs the Secretary of State should ``suspend assistance 
for the Government of Afghanistan'' should be it assessed that the 
Afghan Government is ``failing to make measurable progress'' in meeting 
certain anti-corruption, human rights, and counterterrorism benchmarks.
  The overthrow of the democratically elected Government in Egypt, we 
have had that brought up as another example. Members of this body, 
including Senators McCain, Leahy, and Graham, pressed the Obama 
administration to suspend military aid. It wasn't hidden from the 
Senate. It was urged on the administration by the Senate. Senators 
pressed for that aid to be withheld because the law was clear, in 
instances of a military coup, aid must be suspended. Senators McCain 
and Graham wrote an op-ed in the Washington Post:

       Not all coups are created equal, but a coup is still a 
     coup. Morsi--

  That is the deposed leader of Egypt.

     was elected by a majority of voters, and U.S. law requires 
     the suspension of foreign assistance.

  I could go on and on with examples. No one has suggested you can't 
condition aid, but I would hope that we would all agree that you can't 
condition aid for a corrupt purpose, to try to get a foreign power to 
cheat in your election.
  Now, counsel says that if you decide the prosecution has proved that 
he engaged in this corrupt scheme, if you decide, as impartial jurors, 
that the Constitution requires his removal from office, that the public 
will not accept your judgment. I have more confidence in the American 
people.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  Mr. BOOZMAN. Mr. Chief Justice.
  The CHIEF JUSTICE. The Senator from Arkansas.
  Mr. BOOZMAN. I send a question to the desk on behalf of myself, 
Senators Cotton, Ernst, Young, Hawley, Risch, Fischer, and Hoeven.
  The CHIEF JUSTICE. Thank you.
  Senator Boozman and the other Senators pose a question to both sides:

       In the House Managers' opening statement, they argue that 
     it is necessary to pursue impeachment because ``The 
     President's misconduct cannot be decided at the ballot box. 
     For we cannot be assured that the vote would be fairly won.'' 
     How would acquitting the President prevent voters from making 
     an informed decision in the 2020 presidential election?

  The President's counsel goes first.
  Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice, Members of the 
Senate.
  That is exactly who should decide who should be President, the 
voters. All power comes from the people in this country. That is why 
you are here; that is why people are elected in the House; and that is 
why the President is elected. It is exactly who should decide the 
question, particularly in a case like this, where it is purely 
partisan.
  Here is the other thing, when we are talking about impeachment as a 
political weapon, they didn't tell you what they told the court over 
the holidays when they were waiting to deliver the Impeachment 
Articles. They went and told the court: They are actually still 
impeaching over there in the House; did you know that? They are 
actually still impeaching.
  They are coming here, and they are telling you: Please do the work 
that we didn't do, where we had 2 days in the House Judiciary 
Committee; we had to rush delivery for Christmas; and then we waited 
and waited and waited. But now we want you to call witnesses that we 
never called; that we didn't subpoena. They want to turn you into an 
investigative body. In the meantime, they are saying: By the way, we 
are still doing it over there. We are still impeaching. And they want 
to slow down now. They don't want to speed up. They want to slow it 
down and take up the election year and continue this political charade. 
It is all so wrong. It is all so wrong.
  Let's leave it to the people of the United States. Let's trust them. 
They are asking you not to trust them. Maybe they don't trust them. 
Maybe they won't like the result. We should trust them. That is who 
should decide who the President of this country should be. It will be a 
few months from now, and they should decide.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  Mr. Manager SCHIFF. Mr. Chief Justice, Senators, I appreciate the 
question.
  President Trump must be removed from office because of his ongoing 
abuse of power. It threatens the integrity of the next election.
  As we saw from the video montage, the President has made no bones 
about the fact that he is willing to seek foreign intervention to help 
him cheat in the next election.
  Now, counsel for the President says the next election is the remedy. 
It is not the remedy when the President is trying to seek to cheat in 
that very election. This is why the Founders did not put a requirement 
that a President can only be impeached in their first term. Indeed, at 
that time, of course, there weren't term limits on the Presidency.
  If it were the intent of the Framers to say that a President can't be 
impeached in an election year, they would have said so. Now, they 
didn't for a reason, because they were concerned about a President who 
might try to cheat in that very election.
  Now, counsel--as I was getting to a moment ago--made the argument: If 
you make the decision as impartial jurors that the President has 
violated the Constitution, he has abused his power, he should be 
convicted and removed from office, that the country will not accept it. 
I have more confidence in the American people than that. But I will 
assure you of this: If you make the decision that a fair trial can be 
conducted without hearing from witnesses, the American people will not 
accept that judgment because the American people understand what goes 
into a fair trial, and they understand that a fair trial requires both 
sides to have the opportunity to present their case.
  We would like to present our case. We would like to call our 
witnesses. We would like to rely on more than our argumentation.
  There are few things about this trial that Americans agree on, but 
one thing they are squarely in agreement on--well, two. They believe a 
trial should have witness testimony, and they want to hear from John 
Bolton. That is the overwhelming consensus of the American people, and 
it is consistent with common sense.
  Let's give the country a trial they can be proud of. Let's show that 
at least the process worked and that we followed the Founders' intent 
that a trial have witnesses. I don't think anyone can quarrel with the 
fact, when you look at the history of this body and evidence of 
impeachment--
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The Senator from Virginia.
  Mr. KAINE. Mr. Chief Justice, I send a question to the desk for the 
House managers.
  The CHIEF JUSTICE. Thank you. The question from Senator Kaine to the 
House managers:


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

  
  On page S702, January 30, 2020, third column, the following 
appears: The CHIEF JUSTICE. Thank you. The question from Senator 
KAINE for the House Managers:
  
  The online Record has been corrected to read: The CHIEF JUSTICE. 
Thank you. The question from Senator KAINE to the House Managers:


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



       If the Senate acquits the President on article II, after he 
     violated both the Impoundment Control Act and the 
     Whistleblower Act to hide the Ukraine scheme from Congress, 
     what is to stop President Trump from complete refusal to 
     cooperate with Congress on any matter?

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

[[Page S703]]

part of every single subpoena served by the House.
  A President who issues orders like this is a President who can place 
himself above the law and a system of checks and balances. He can do 
whatever he wants and get away with it by using his powers to 
orchestrate a massive coverup. The President's lawyers haven't disputed 
that point. They can't. It is obvious that a President who ignores and 
can ignore all oversight is a threat to the American people.
  Instead, they have argued assertion of a grab bag of legal privileges 
warranting this categorical defiance. These arguments are unprecedented 
and wrong.
  The first thing to note is the President's arguments conveniently 
ignore the October 8 letter sent at the President's behest declaring 
that the President will not ``participate'' in the impeachment 
investigation.
  I will not participate. This blanket defiance preceded all of the 
other letters and creative OLC opinions the President relied upon. It 
made clear that the rationale for blanket defiance was the President's 
belief that he can declare his own innocence and make it illegitimate 
to investigate him. This was not about privileges or legal arguments. 
Those came later, as his lawyers rushed to justify that Congress has no 
power whatsoever to enforce subpoenas against anyone.
  Let's be clear. They may claim that their October 8 letter where they 
said they will not participate was somehow an offer to accommodate, but 
what the real condition was, was that the House simply drop the 
impeachment investigation or place the President in charge of its 
direction. That wasn't a real offer. That was a poison pill.
  Now, what about the remaining arguments? The first point is that none 
of them justify his order to defy all the subpoenas. He never asserted 
executive privilege over any documents, and his remaining arguments 
that absolute immunity or agency counsel not being allowed to attend 
depositions have nothing to do with documents--nothing. So none of his 
legal arguments even applies to his direction that every single office 
and agency defy every single subpoena for documents.
  And what about the total obstruction of the witnesses? Here, too, he 
never invoked executive privilege. Absolute immunity obviously couldn't 
apply to many of the lower level officials we subpoenaed.
  The only remaining legal ground for defiance was the argument it is 
unconstitutional for Congress to prevent agency counsel from going to 
depositions--the fallback of fallback of fallbacks--except this rule 
was originally passed by a Republican Congress and has been used 
repeatedly by both Republican- and Democratic-led majorities and 
committees. It can't possibly justify obstruction of witness subpoenas. 
It is nothing more than a phony cover for an obstruction that President 
Trump decided upon at the outset.
  These arguments are, thus, incorrect on their own terms and fail to 
explain this categorical order.
  One final irony, even before the argument in court today: At a recent 
oral argument in the DC Circuit, they made the same claim they made 
today. Let's pull up slide 56. In litigation, again, to enforce 
subpoenas, the judge said they can make it grounds for impeachment for 
obstruction of Congress. And the President's own lawyers said 
impeachment is certainly one of the tools that Congress has. We agree; 
it is one of the tools that you have for when a President would use a 
categorical obstruction of investigation into his own wrongdoing.
  It is a tool that should be applied here. There cannot be a better 
case for impeachment on obstructing a coequal branch of Congress than 
the one before you where the obstruction is so complete and so 
categorical.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The Senator from Florida.
  Mr. SCOTT of Florida. Mr. Chief Justice, I send a question to the 
desk on behalf of myself and Senator Braun, and it is to the 
President's counsel.
  The CHIEF JUSTICE. Thank you. The question from Senators Scott of 
Florida and Braun for counsel for the President:

       If Speaker Pelosi, Chairman Schiff, Chairman Nadler, and 
     House Democrats were so confident in the gravity of the 
     President's conduct and the ``overwhelming evidence'' of an 
     impeachable offense that prompted the inquiry, why were the 
     House Republicans denied the procedural accommodations and 
     substantive rights afforded to the minority party in the 
     Clinton impeachment? Additionally, why were the President's 
     counsel and agency attorneys denied access to cross-examine 
     witnesses during committee testimony and present the 
     testimony of witnesses in defense of the issues under review?

  Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice, Members of the 
Senate. I don't know why they would do that. I don't know. They 
violated every past precedent. They violated all forms of due process.
  Now, they say that is a process argument, and it is, but it is more 
than that. It is more than that. If you feel confident in your facts, 
then why do you design a process that completely shuts out the 
President? Why do you cook up the facts in a basement SCIF instead of 
in the light of day? Why do you do that?
  Why don't you allow the minority to call witnesses, as they have had 
the right to do in all past impeachments? And then they come here and 
say: By the way, we were fully in charge, so completely in charge that 
we locked out the President's counsel, denied all rights, denied the 
minority any witnesses at all. But when we come here, they don't--they 
still don't get witnesses. They want you not only to do their job but 
to make the same mistake, the same violation of due process, that they 
did. They said: Well, let's just pick the witnesses that we want. The 
other ones are irrelevant--not relevant.

  In listening to Mr. Schiff over these months, I have come to a 
determination about what he means by ``irrelevant.'' He means bad for 
them, OK. He means witnesses that the President wants to call. So I 
don't know why they did that.
  I will say something else. I will say something else. I have respect 
for you, and I have respect for the House. And when I first got this 
job, I went--one of the first things I did is I went to visit Mr. 
Schiff, Chairman Schiff. I went to visit Chairman Nadler. I went to 
visit Chairman Cummings at that time. And I said: We are here to work 
with you, to cooperate where we can, but in the institutional interest, 
obviously. We will participate in oversight, but if we have 
constitutional points to make, we will make them and we will make them 
directly.
  And the administration has participated in oversight. Many, many 
witnesses have testified in oversight hearings. A large number of 
documents have been produced in oversight hearings.
  And in fact, in the letter that I sent on October 8, I made the same 
offer. I said: Look, this is not really a valid impeachment proceeding, 
for all of the reasons that we have stated, but if the committees wish 
to return to the regular order of oversight requests, we stand ready to 
engage in that process. But that never happened.
  So I respect Congress. The administration respects Congress, but we 
respect the Constitution. We respect the Constitution, too, and we have 
an obligation to the executive branch and to the future Presidency--
future Presidents--to vindicate the Constitution and vindicate those 
rights.
  Thank you.
  The CHIEF JUSTICE. The Senator from Oregon.
  Mr. WYDEN. Mr. Chief Justice, I send a question to the desk for the 
House floor managers.
  The CHIEF JUSTICE. Thank you. The question from Senator Wyden for the 
House managers:

       The Intelligence Community is prohibited from requesting 
     that a foreign entity target an American citizen when the 
     Intelligence Community is itself prohibited from doing so. In 
     2017, during [Director] Mike Pompeo's confirmation hearing to 
     be the Director of the Central Intelligence Agency, he 
     testified that ``it is not lawful to outsource that which we 
     cannot do.'' So when President Trump asked a foreign country 
     to investigate an American when the U.S. government had not 
     established a legal predicate to do so, how is that not an 
     abuse of power?

  Mr. Manager SCHIFF. It is absolutely an abuse of power. And what is 
more, if you believe that a President can essentially engage in any 
corrupt activity as long as he believes that it will assist his 
reelection campaign and

[[Page S704]]

that campaign is in the public interest, then what is to stop a 
President from tasking his intelligence agencies to do political 
investigations? What is to stop him from tasking the Justice 
Department? If it can come up with some credible or incredible claim 
that his opponent deserves to be investigated, their argument would 
lead you to the conclusion that he has every right to do that, to use 
the intelligence agencies or the Justice Department to investigate a 
rival. And when they become a rival, it is even more justified.
  But you are absolutely right. If Secretary Pompeo was correct and you 
can't use your own intelligence agencies, you sure shouldn't be able to 
use the Russian ones or the Ukrainian ones.
  And here we have the President on that phone call pushing out this 
Russian propaganda, this Russian intelligence service propaganda--
CrowdStrike, the server, as if there was just one server and it was 
whisked away to Ukraine; the Ukrainians hacked the server and not the 
Russians. A made-for-you-in-the-Kremlin conspiracy theory that 
undermines our own intelligence agencies but suits the political 
interests of the President.
  And his legal agent, Rudy Giuliani, is out there peddling this 
fiction. The President himself is out there promoting this fiction, 
standing side by side with Vladimir Putin.
  But you are absolutely right. It would be a monumental abuse of 
power, and it is a monumental abuse of power. And if you don't think 
abuse of power is impeachable, well, don't take my word for it. Don't 
take, earlier, Professor Dershowitz' word for it or Jonathan Turley's 
word for it. Let's look to our Attorney General. This is what he said: 
``Under the Framers' plan, the determination whether the President is 
making decisions based on improper motives''--something that Professor 
Dershowitz says we are not allowed to consider--``based on `improper' 
motives or whether he is `faithfully' discharging his responsibilities 
is left to the People, through the election process, and the Congress, 
through the Impeachment process. . . . The fact that [the] President is 
answerable for any abuses of discretion and is ultimately subject to 
the judgment of Congress through the impeachment process means that the 
President is not the judge in his own cause.''
  Their own Attorney General doesn't agree with their theory of the 
case. But again, we don't have to rely on Bill Barr's opinion or Alan 
Dershowitz' opinion or my opinion or the consensus of constitutional 
scholars everywhere; we can rely on our common sense. The conclusion 
that a President can abuse his power by corruptly entering into a quid 
pro quo to get a foreign intelligence service or a foreign government 
or foreign leader to do their political dirty work and help them cheat 
in the election--our common sense tells us that cannot be compatible 
with the Office of the Presidency.
  If we say it is, if we say it is beyond the reach of the impeachment 
power, or we engage in this sophistry and we say: Because you put it 
under the rubric of abuse of power--even though that was the Framers' 
core offense--and you didn't put it under some other rubric, well, we 
won't even consider it--if we are going to engage in that kind of legal 
sophistry, it leaves the country completely unprotected from a 
President who would abuse his power in this way. That cannot be what 
the Framers had in mind.
  The Constitution is not a suicide pact. It does not require us to 
surrender our common sense. Our common sense, as well as our morality, 
tells us what the President did was wrong. When a President sacrifices 
the national security interests of the country, it is not only wrong, 
but it is dangerous. When a President says, as we saw just a moment 
ago, over and over again, he will continue to do it if left in office, 
it is dangerous. The Framers provided a remedy, and we urge you to use 
it.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  Mr. BRAUN. Mr. Chief Justice.
  The CHIEF JUSTICE. The Senator from Indiana.
  Mr. BRAUN. I ask to send a question to the desk on my behalf and 
Senator Barrasso's for the President's counsel.
  The CHIEF JUSTICE. Thank you.
  The question from Senators Braun and Barrasso for counsel for the 
President:

       The House Managers have said the country must be saved from 
     this President, and he does not have the best interests of 
     the American people and their families in mind. Do you wish 
     to respond to that claim?

  Mr. Counsel HERSCHMANN. Mr. Chief Justice, Members of the Senate, 
while the House managers are coming before you and accusing the 
President of doing things, in their words, solely for personal and 
political gain and claiming that he is not doing things in the best 
interests of the American people, the American people are telling you 
just the opposite.
  The President's approval ratings, while we are sitting here in the 
middle of these impeachment proceedings, have hit an alltime high. A 
recent poll shows that the American people are the happiest they have 
been with the direction of the country in 15 years. Whether it is the 
economy, security, military preparedness, safer streets, or safer 
neighborhoods, they are all way up. We, the American people, are 
happier. Yet the House managers tell you that the President needs to be 
removed because he is an immediate threat to our country.
  Listen to the words that they just said: We--we, the American 
people--cannot decide who should be our President because, as they tell 
us--and these are their words--``we cannot be assured that the vote 
will be fairly won.'' Do you really, really believe that? Do you really 
think so little of the American people? We don't. We trust the American 
people to decide who should be our President. Candidly, it is crazy to 
think otherwise.
  What is really going on? What is really going on is that he is a 
threat to them, and he is an immediate, legitimate threat to them, and 
he is an immediate, legitimate threat to their candidates because the 
election is only 8 months away.
  Let's talk about some of the things the President has done. We have 
replaced NAFTA with the historic MCA. We have killed a terrorist--al-
Baghdadi and Soleimani. We secured $738 billion to rebuild the 
military. There have been more than 7 million jobs created since the 
election. Illegal border crossings are down 78 percent since May, and 
100 miles of the wall have been built. The unemployment rate is the 
lowest in 50 years. More Americans--nearly 160 million--are employed 
than ever before. The African-American unemployment, the Hispanic-
American unemployment, the Asian-American unemployment has the lowest 
rate ever recorded. Women's unemployment recently hit the lowest rate 
in more than 65 years. Every U.S. metropolitan area saw per capita 
growth in 2018. Real wages have gone up by 8 percent for the low-income 
workers. Real median household income is now the highest level ever 
recorded. Forty million fewer people live in households receiving 
government assistance. We signed the biggest package of tax cuts and 
reforms in history. Since then, over $1 trillion has poured back into 
the United States. Six hundred and fifty thousand single mothers have 
been lifted out of poverty. We secured the largest ever increase for 
childcare funding, helping more than 800,000 low-income families access 
high-quality, affordable care. We passed, as Manager Jeffries will 
recall, bipartisan criminal justice reform. Prescription drugs have 
received the largest price decrease in over half a century. Drug 
overdose deaths fell nationwide in 2018 for the first time in nearly 30 
years.
  The Gallup poll from just 3 days ago says that President Trump's 
upbeat view of the Nation's economy, military strength, economic 
opportunity, and overall quality of life will likely resonate with 
Americans when he delivers the State of the Union Address to Congress 
next week.
  If all that is solely--solely, in their words--for his personal and 
political gain and not in the best interests of the American people, 
then I say: God bless him. Keep doing it. Keep doing it. Keep doing it.
  Maybe if the House managers stop opposing him and harassing him and 
harassing everyone associated with him, with the constant letters and 
the constant investigations, maybe we can even get more done.

  Let's try something different now. Join us. Join us. One Nation. One 
Nation. One people. Enough is enough. Stop all of this.

[[Page S705]]

  Thank you.
  Mr. BENNET. Mr. Chief Justice.
  The CHIEF JUSTICE. The Senator from Colorado.
  Mr. BENNET. Thank you. I send a question to the desk from myself and 
Senator Schatz and Senator Menendez.
  The CHIEF JUSTICE. Thank you.
  The question from Senators Bennet, Menendez, and Schatz is to the 
House managers:

       If the Senate accepts the President's blanket assertion of 
     privilege in the House impeachment inquiry, what are the 
     consequences to the American people? How will the Senate 
     ensure that the current president or a future president will 
     remain transparent and accountable? How will this affect the 
     separation of powers? And, in this context, could you address 
     the President's counsel's claim that the President's advisers 
     are entitled to the same protections as a whistleblower?

  Mr. Manager NADLER. Mr. Chief Justice, Members of the Senate, 
privileges are limited. We have voted to impeach the President for, 
among other things--article II of the impeachment is total defiance of 
House subpoenas.
  And the President announced it in advance: I will defy all the 
subpoenas. What does this mean? It means that there is no information 
to Congress. It means the claim of monarchical, dictatorial power. If 
Congress has no information, it cannot act. If the President can 
define--now, he can dispute certain specific claims. You can claim 
privilege, et cetera. But to defy categorically all subpoenas, to 
announce in advance you are going to do that and to do it, is to say 
that Congress has no power at all, that only the executive has power.
  That is why article II is impeaching him for abuse of Congress. That 
is why, for a much lesser degree of offense, Richard Nixon was 
impeached for abuse of Congress--for the same defiance of any attempt 
by the Congress to investigate.
  What are the consequences? The consequences, if this is to be--if he 
is to get away with it, is that any subpoena you vote in the future, 
any information you want in the future from any future President may be 
denied you, with no excuses, announced in advance--I will defy all the 
subpoenas. It eviscerates Congress and establishes the executive 
department as a total dictatorship. That is the consequence.
  I want to also talk about--and the motives are clearly dictatorial.
  I want to also take a point, since I have the floor, to answer a 
question--to comment on a question that Senator Collins and Senator 
Murkowski asked yesterday. They asked about the question of mixed 
motives. How do you define--how do you deal with a deed--with a 
President who may have a corrupt motive and a fine motive? How do you 
deal with it?
  Professor Dershowitz said: Well, you have to look at the--you have to 
mix. You have to weigh the balances.
  Nonsense. Nonsense. We never, in American law, look at decent motives 
if you can prove a corrupt motive. If I am offered a bribe and I accept 
the bribe for corrupt motive, I will not be heard in defense to say: 
Oh, I would have voted for the bill anyway; it was a good bill. You 
don't inquire into other motives. Maybe you had good motives, but once 
the corrupt motive and the corrupt act was established, there is no 
comparison.
  All of this is just nonsense to point away from the fact that the 
President has been proven beyond a shadow of a doubt--and the defenders 
don't even bother, really, to defend; they just come out with 
distractions--has been proven beyond a reasonable doubt to have abused 
his power by violating the law to withhold military aid from a foreign 
country to extort that country into helping his reelection campaign by 
slandering his opponent. Corrupt--no question. Violation of the law--no 
question. Factually--no question. They don't even make a real attempt 
to deny it. Everything is a distraction.
  And the one chief distraction is, once you prove a corrupt act, that 
is it. You never measure the degree of, maybe he had decent motives 
too. Professor Dershowitz, in talking about that and in talking about 
the absolute power of the Presidency, was just absent from American law 
or any kind of Western law.
  I yield back.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  Mr. PERDUE. Mr. Chief Justice.
  The CHIEF JUSTICE. The Senator from Georgia.
  Mr. PERDUE. I send a question to the desk for the President's counsel 
on behalf of myself, Senator Ernst, and Senator Barrasso.
  The CHIEF JUSTICE. Thank you.
  The question from Senators Perdue, Ernst, and Barrasso for counsel 
for the President is as follows:

       Please summarize the House of Representatives' three-stage 
     investigation and how the President was denied due process in 
     each stage. Combined with Manager Schiff's repeated leaks 
     during the House's investigation, do these due-process 
     violations make this impeachment the fruit of the poisonous 
     tree?

  Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for that 
question. The short answer, as I think I have indicated a couple of the 
times I have been up here, is, yes, this entire proceeding here is now 
the fruit of the poisonous tree. It is the fruit of a proceeding that 
was fatally deficient in due process from the start to the beginning. 
As a result of that, it produced a record that is totally unreliable, 
can't be relied on here for any conclusion other than acquitting the 
President.
  Let me detail the three phases.
  The first error was the House began the proceeding in a totally 
unconstitutional, unlawful, and illegitimate manner that started with 
an impeachment inquiry without any vote of the House to authorize that 
inquiry. I want to spend a second on this because the House managers 
have spent a lot of time today trying to go back and argue about why 
their proceeding was all right, but they are not actually engaging the 
real issues.
  In order for the House to exercise the power of impeachment, there 
has to be a delegation of that authority to a committee. That is just a 
fundamental principle that the Constitution gives power to the House 
itself, not to individual Members of the House, not to the Speaker. 
Just as here in the Senate you wouldn't think that the majority leader 
could say--if an impeachment arrived, the majority leader could say: 
Guess what. We are not going to do a trial with the whole Senate. I, 
the majority leader, will decide I will have one committee hear the 
evidence, provide a summary, and then you all can vote.
  The majority leader doesn't have the authority on his own to do that. 
The Speaker doesn't have the authority in the House to give the power 
of impeachment to any committee to start pursuing an inquiry, and this 
is the key. There is no rule giving any committee in the House the 
authority to use the power of impeachment. Rule X speaks of legislative 
authority, not power of impeachment, and all the subpoenas that were 
issued came with letters saying on them: Pursuant to the House's 
impeachment inquiry. They purported to be using a power that hadn't 
actually been delegated to the committee. That is the first flaw--
illegitimate, unlawful proceeding from the start.
  Then there are the due process laws. Three stages of the hearings: 
One, secret hearings in the basement bunker; the President is locked 
out. No opportunity to cross-examine witnesses, to see the evidence, to 
present evidence.
  And then, they go from that to the public hearings, what was really 
just a public show trial, because the President is still cut out, 
totally unprecedented in any Presidential impeachment--that there would 
be that second phase of public hearings where the President is still 
cut out, can't present evidence. The minority Members don't have equal 
subpoena authority.
  In the third phase in front of the House Judiciary Committee, they 
purport to have offered rights, but I have explained that. It was 
illusory because they had already decided. Before the President was 
even supposed to respond to what rights he would like to exercise, the 
Speaker had announced the result that there were going to be Articles 
of Impeachment. The Judiciary Committee decided they weren't going to 
hear from any fact witnesses. They had no plans for hearings. It was 
all a foregone conclusion because they had to get it done by Christmas.
  And the third error: Chairman Schiff was in charge of all the fact-
finding and he had an interest, because of the interactions of his 
office with the whistleblower that we still don't know about, to shut 
down questioning about

[[Page S706]]

the motives, the bias, the reasons that the whistleblower--how this all 
came about.
  All three of those errors affected this process from the very 
beginning. They resulted in a one-sided, slanted fact-finding that was 
rushed by a person controlling the fact-finding who had a motive to 
limit what facts would be allowed to get into the proceedings and 
produced a record that cannot possibly be relied on here. We said many 
times that the Supreme Court has made clear that cross-examination is 
the greatest legal engine ever invented for the discovery of truth. And 
they didn't permit the President the opportunity to cross-examine 
anyone. And that is an indication that the goal was not a search for 
the truth. It was a partisan charade intended to justify a preordained 
result and to get it done by Christmas, and it is not a record that can 
be relied on here.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from Illinois.
  Ms. DUCKWORTH. Mr. Chief Justice, I send a question to the desk for 
the House managers.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Duckworth for the House managers:

       If the hold on aid to Ukraine was meant to be kept secret 
     until the President could gather internal U.S. government 
     information on Ukraine corruption and European cost sharing, 
     then is there any documentary evidence of this? For example, 
     is there any evidence that the President was briefed on those 
     issues by the NSC, DOD or State Department during the period 
     of the hold in the summer of 2019, or any evidence that he 
     requested specific information on anti-corruption reform 
     measures in Ukraine? Prior to releasing the aid on September 
     11, 2019, did the President order any changes to 
     Administration policy to address corruption in Ukraine or 
     burden sharing with our European allies?

  Mr. Manager CROW. Mr. Chief Justice. Thank you, Senator, for that 
question.
  Let's just take a moment and address what the process should have 
looked like, because, as we have already established and as President's 
counsel has conceded and we have conceded, this does happen. Right? 
There is a legitimate policy process for review and for determination 
on hold because there is, indeed, legitimate policy reasons to hold 
aid. And we have never said that corruption is not one of those or 
burden-sharing wouldn't be one of those. What we are saying is that 
there is no evidence that what we are talking about today--- that the 
President was concerned or engaged in that process.
  So what would normally happen is Congress would come together as we 
did. We passed appropriations bills, and we made the determination that 
funding was appropriate for the aid, which 87 Members of the Senate did 
this past year. The President would then rely on the advice of 
government experts from the National Security Council, the Department 
of Defense, State Department, and the Office of Management and Budget 
regarding that aid. That is the interagency process that we have talked 
so much about--the interagency process that we went through earlier 
last year. And at the conclusion of that interagency process, it was 
determined that it had met all the conditions for the aid and all the 
agencies determined that it should go forward. The President would then 
seek permission from Congress that he intended--normally, if there was 
a reason, the President would go back and seek permission from 
Congress--to hold the aid. So let me repeat that. If there were a 
reason to hold it, the President--and President Trump has done this in 
the past under legitimate processes, as has President Obama and prior 
Presidents--would go back to Congress under predescribed processes and 
make sure that they are not violating the Impoundment Control Act and 
seek permission to hold it. That did not happen.
  Congress would then weigh in on the request by approving or denying 
the President's request. Unless Congress specifically approves the 
President's request, the aid must be made available. Of course, none of 
that happened.
  In this instance, a hold was put in place. We don't know exactly when 
because the President and his agencies have prevented us, and his 
counsel prevented us, from getting that information. But a hold was put 
in place. No reason was given. The only one in the United States 
Government who apparently knows why that hold was put in place is 
President's counsel, who tried to tell us last night why he thinks the 
hold was put in place, but nobody else knows.
  So yes, the answer is if there was a legitimate policy process put in 
place, there will be a lot of information about burden-sharing, about 
corruption, about any of the other concerns to which we have no 
evidence.
  And if burden-sharing--to the last point of the question--was a 
concern, then the person who should have been asked to discuss those 
concerns with the EU and our European partners would have been 
Ambassador Sondland, because he is the United States Ambassador to the 
European Union. And not once did President Trump go to Ambassador 
Sondland and say: Discuss these issues with the EU and the Europeans, 
saying they need to provide more money. Not once did that happen, and 
it didn't happen because it wasn't the real concern.
  All the evidence shows the President withheld taxpayer money, foreign 
aid to our partner at war to coerce them to start a political 
investigation to benefit his 2020 election campaign. That is what the 
evidence shows, and that is why we are still here. And there is one 
person that can provide additional information on that, and that is 
Ambassador Bolton. And, yes, it is still a good time to subpoena 
Ambassador Bolton.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The Senator from Maine.
  Ms. COLLINS. Mr. Chief Justice, I send a question to the desk on 
behalf of myself and Senators Crapo, Blunt, and Rubio.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Collins and the other Senators for both 
parties:

       Are there legitimate circumstances under which a President 
     could request a foreign country to investigate a U.S. 
     citizen, including a political rival, who is not under 
     investigation by the U.S. government? If so, what are they 
     and how do they apply to the present case?

  The House goes first.
  Mr. Manager SCHIFF. Mr. Chief Justice, Senator.
  It would be hard for me to contemplate circumstances where that would 
be appropriate, where it would be appropriate for the President of the 
United States to seek a political investigation of an opponent.
  One of the, I think, most important post-Watergate reforms was to 
divorce decisions about specific cases, specific prosecutions from the 
White House to the Justice Department, to build a wall. One of the many 
norms that has broken down in this Presidency is that wall has been 
obliterated, where the President has affirmatively and aggressively 
sought to investigate his rivals. I cannot conceive of circumstances 
where that is appropriate.
  It may be appropriate for the Justice Department, acting 
independently and in good faith, to initiate an investigation. There is 
a process for doing that. We heard testimony about doing that. You can 
make a request under the mutual legal assistance treaty, MLAT, process 
when a foreign country has evidence involving a criminal case involving 
a U.S. person. There is a legitimate way to do that.
  That didn't happen here. In fact, when Bill Barr's name was first 
revealed, when that transcript was brought to light, the Justice 
Department immediately said: We have nothing to do with this--nothing 
to do with this. Here, this particular domestic political error was 
being done by the President's personal lawyer.
  I want to just follow up also while I can, Senator, on my colleague's 
comments in terms of mixed-motives. If you conclude the President acted 
with mixed-motives--some corrupt and forbidden, some legitimate--you 
should vote to commit. That principle is deeply rooted in our legal 
tradition. It is commonplace in civil and criminal law going back 
centuries.
  For example, in describing the standard for corrupt motive for 
obstruction, the 7th Circuit rejected any requirement that a 
defendant's only or main purpose was to obstruct the due administration 
of justice and, instead, the court explained a defendant is guilty if 
his motives included any corrupt, forbidden goals. That case, United 
States

[[Page S707]]

v. Cueto, which I cited earlier, is not only relevant here, but that 
case was argued by Professor Dershowitz and he lost. He made the 
argument he has made and the President's lawyer have made today. They 
lost that case and for a good reason. It is contrary to the history of 
our legal traditions. If someone, and this is--the Founders were 
concerned, for example, that a President might be charged with bribing 
managers of the electoral college.


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

  
  On page S707, January 30, 2020, first column, the following 
appears: . . . v. Cueto, which I cited earlier, is not only 
relevant here, but that case was argued by Professor Derschowitz 
and he lost. He made the argument he has made and the President's 
lawyer have made today. They lost that case and . . .
  
  The online Record has been corrected to read: . . . v. Cueto, 
which I cited earlier, is not only relevant here, but that case 
was argued by Professor Dershowitz and he lost. He made the 
argument he has made and the President's lawyer have made today. 
They lost that case and . . .


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


  The CHIEF JUSTICE. The President's counsel.
  Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for that 
question.
  I would like to start by pointing out that the question sort of 
assumes that there is a request for an investigation in a foreign 
country of a United States person.
  I would just like to bring it back, though, here, to the transcript 
of the July 25 call, where President Trump didn't ask President 
Zelensky, specifically, for an investigation or investigation into Vice 
President Biden or his son Hunter. There is a lot of loose talk in sort 
of shorthand reference to it that way.
  What he refers to is the incident in which the prosecutor was fired. 
The first thing that he says in that whole exchange is talking about 
the prosecutor being fired--and he says it sounds horrible to him--and 
the situation with Burisma. And all the President says is: ``So if you 
can look into it. . . . It sounds horrible.'' It sounds like a bad 
situation.
  That is not calling for an investigation, necessarily, into Vice 
President Biden or his son, but the situation in which the prosecutor 
had been fired which affected anti-corruption efforts in the Ukraine.
  President Zelensky responded by saying the issue of the investigation 
of the case is actually the issue of making sure to restore the 
honesty. So we will take care of that. He is explaining that he 
understands that it is an issue that has to do with, was an 
investigation over there, which their prosecutor was handling, derailed 
in a way that affected their anti-corruption efforts, and was it 
something worth looking into?
  It is the President's making clear that we are not saying that it is 
off-limits. It sounds bad to the U.S. as well.
  Let me get more specifically to the question of, Is there any 
situation where it might be legitimate to ask for an investigation 
overseas?
  Yes. If there were conduct by a U.S. person overseas that potentially 
violated the law of that country but didn't violate the law of this 
country but there were a national interest in having some information 
about that and understanding what went on, then it would be perfectly 
legitimate to suggest that this was something worth looking into.
  We have an interest in knowing about this, even if it is not 
something that would mean a criminal investigation here in the United 
States. So that could arise in various circumstances where a person had 
done something overseas, but there was a national interest in knowing 
what they had done.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  The Democratic leader is recognized.
  Mr. SCHUMER. Mr. Chief Justice, I send a question to the desk for 
President's counsel and the House managers.
  The CHIEF JUSTICE. Thank you.
  The Democratic leader's question is this:

       Yesterday I asked the President's Counsel about the 
     President's claim of absolute immunity. Specifically, I asked 
     the President's lawyers to name a single document or witness 
     that the President turned over to the House impeachment 
     inquiry in response to their request or subpoena. Mr. Philbin 
     spoke for 5 minutes and talked about the various types of 
     immunities and privileges the President could invoke, but did 
     not answer my question. So I ask once again, can you name a 
     single witness or document that the President turned over to 
     the House impeachment inquiry?

  It is directed to both parties, and the President's counsel goes 
first.
  Mr. Counsel PHILBIN. Mr. Chief Justice, Minority Leader Schumer, 
thank you for that question. I apologize if I was not direct at getting 
to the nub of the question yesterday.
  I was intending to explain the rationales that the administration had 
provided for its actions and to explain, contrary to the question, that 
there was not simply absolute defiance and not simply a blanket 
assertion that we won't do anything. That is the way the House managers 
have tried to characterize it.
  So let me be clear. There were document subpoenas issued prior to the 
adoption of H. Res. 660. The President explained--the administration 
explained--in various letters that all of those were invalid, and there 
were no documents produced in response. There were no documents 
produced in response because all of those subpoenas were invalid. There 
was no attempt to reissue those subpoenas or to retroactively attempt 
to authorize them.
  There were then subpoenas for witnesses who were senior advisers to 
the President. The President advised the head of the committees that 
had issued those that those senior advisers had absolute immunity, and 
they were not produced for testimony. Those three senior advisers were 
not produced.
  There were then subpoenas for witnesses to others whom the House 
Democrats insisted would be required to testify without the benefit of 
agency counsel, and I have explained that principle. The Office of 
Legal Counsel advised that those subpoenas attempting to require 
executive branch officials to testify without the benefit of agency 
counsel were unconstitutional, and so those witnesses were not 
produced. Still, there were 17 witnesses who testified, not including 
the 18th witness, the ICIG, whose testimony is still secret.
  So there was quite a bit of testimony, and there have been, 
subsequently, some documents relevant to this, produced under FOIA. I 
just want to raise that because it makes clear that, if you follow the 
law and you follow the rules and you make a document request that is 
valid, documents get produced. If you don't follow the law, the 
administration resists. That is why the documents were not produced--
because the subpoenas were invalid. We made that very clear.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  Mr. Manager SCHIFF. The quick answer, Senator, is that not a single 
document was turned over and not a single witness was produced. The 
witnesses who did come came in defiance of the orders of the President.
  Counsel has, obviously, made all of these claims that we think are 
completely spurious, but what they don't answer is, what was the 
motivation to fight all of these subpoenas?
  They argue this interpretation which the courts have rejected--that 
the courts have looked at it and that somehow these subpoenas were 
invalid. But why didn't they produce the documents? Why did they insist 
on this ``now discredited by the courts'' legal theory? Because they 
were covering up the President's misconduct.
  I want to return briefly to finish the comments I was making earlier 
about the Senator's question earlier on mixed motives.
  There is a good reason mixed motives are no defense. Otherwise, 
officials who commit misconduct could always claim that, even if they 
did it and even if it were corrupt, they must be acquitted because they 
were able to invent some phony motivation and insist it played some 
minor role in their scheme.
  Imagine how that principle would apply to a President charged with 
bribing members of the electoral college. Multiple Framers cited this 
specific threat while discussing impeachment at the Constitutional 
Convention. Could a President defend himself on the ground that he was 
motivated, in part, by a noble desire to reward members of the 
electoral college for their public service? Could he defend it on the 
ground that, even as he handed over the bribes, he wasn't just acting 
corruptly but was also seeking to advance the public interest by 
keeping himself in power? According to the President's lawyers, yes, he 
could.
  Indeed, for all of the reasons we provided, there is no doubt that 
the President's quid pro quo, the solicitation of foreign interference, 
and his use of official acts to compel that interference were a 
fundamentally corrupt scheme, by which I mean the motive and intent was 
to benefit himself--to obtain personal political gain while ignoring 
and injuring core national interests in our democracy and our security.

[[Page S708]]

  We have demonstrated, we believe, that the scheme was entirely 
corrupt, but if you have any question about that, ask John Bolton. If 
there is any question about whether the motive was mixed or not mixed, 
ask John Bolton. He has relevant testimony. You can ask, also, Mick 
Mulvaney.
  You can subpoena the documents and answer the earlier questions as to 
what the documents say about when the President withheld the aid and 
whether there was any interagency discussion of reforms in the errata. 
I mean, the President's counsel literally made the argument that the 
circumstance that changed was a change in the errata, but there is no 
evidence to support that idea.
  The CHIEF JUSTICE. The manager's time has expired.
  The majority leader is recognized.


                                 Recess

  Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent that the 
Senate stand in recess until 4 p.m.
  There being no objection, at 3:37 p.m., the Senate, sitting as a 
Court of Impeachment, recessed until 4:03 p.m.; whereupon the Senate 
reassembled when called to order by the Chief Justice
  The CHIEF JUSTICE. The Senator from Idaho.
  Mr. CRAPO. Mr. Chief Justice, I send a question to the desk on behalf 
of myself and Senators Risch, Graham, Ernst, Fischer, Cruz, and Perdue.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Crapo and the other Senators for counsel 
for the President:

       How many witnesses have been presented to the Senate at 
     this point in this trial, how many pages of documentary 
     evidence have been put in the record before the Senate in 
     this trial, and how many other clips and transcripts of 
     evidence have been presented to the Senate in this trial?

  Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for that 
question.
  I think it is important to recognize that--because the House managers 
keep talking about the need for witnesses, you can't have a trial 
without witnesses--you have seen a lot of witnesses. There were 17 
witnesses who were deposed and testified--12 in public, 17 who were in 
closed hearings below.
  So far you have seen in these presentations 192 video clips from 13 
different witnesses. So testimony was shown here to you. Just as you 
would in a trial in an ordinary court sometimes play the video of a 
deposition instead of having the witness take the stand, you have seen 
video clips from 13 different witnesses.
  The House managers dramatically wheeled into the Senate a record--I 
think it was reported as being 29,000 pages. I think the more official 
number is 28,578 pages. So you have got over 28,000 pages of documents 
submitted into the record provisionally in evidence in this trial, 
subject later to potential objections for hearsay and other evidentiary 
objections.
  You have also heard here the arguments that have been presented, 
along with presentation of both the documentary and testimonial 
evidence by video clip and by slides that were put up. You have heard 
arguments for up to 24 hours from each side. We didn't take all of our 
time. The House managers argued for over 21 hours, putting on, with 
their video clips and their excerpts from documents in the record, 
their case.
  So at this point there has been a lot put on here in terms of a 
trial. You have seen the witnesses in the clips--all the most relevant 
parts. You have seen the documents put up in excerpts on screens.
  And as a result of this, the House managers have consistently said 
over and over again--before they came here, they said they had an 
overwhelming case. It was already buttoned down. They didn't need 
anything else.
  They said when they got here that it was proven--every single 
allegation, every line in each Article of Impeachment. They said: 
Proven, proven, proven.
  We don't think that that is true, but those are their words. That is 
what they are telling you--that they have had sufficient evidence to 
make their case. They said ``proven,'' ``sufficient,'' ``uncontested,'' 
and ``overwhelming'' at least 68 times in the proceedings on the floor 
here.
  Manager Nadler told us just today that they think they have not only 
proved it beyond a reasonable doubt but beyond any doubt because of the 
evidence that they have already put on in front of you.
  We don't think that is true. We think we have demonstrated it is not.
  But the point is that the House managers have already put on a 
substantial amount of testimony from witnesses through their clips of 
prior deposition and hearing testimony. They have already presented to 
you a large portion of the most relevant documents from those 28,000. 
You have heard from the witnesses; you have seen where their testimony 
conflicts. You can see which is the better, more persuasive version of 
the facts.
  You have been able to see what it is that they have in the record 
that they say was overwhelming--already ready to go to trial--and this 
proceeding, therefore, has already had a lot of the earmarks of a 
trial.
  So don't be taken in by the idea that we can't have a trial here, you 
can't have a valid proceeding unless they bring someone in here to 
testify live, because it wouldn't be just one person. If we start to go 
down that route, it is not presenting the case that was prepared in the 
hearings below; it is opening up discovery for an entirely new case, 
and there would have to be depositions and witnesses on both sides, and 
there is no need to do that if they really believe what they are 
telling you--that it is already overwhelming. It is already proven.
  There is no need to go on to anything else when you have already seen 
so much and House managers had their chance to prepare their case.
  And, again, I would also just make the point to bear in mind what is 
the set--what precedent would be set if this Chamber has to become the 
investigatory body for impeachments that were not prepared properly in 
the House.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from Arizona.
  Ms. SINEMA. Mr. Chief Justice, I submit a question to the desk for 
the President's counsel on behalf of myself, Senator Manchin, Senator 
Murkowski, and Senator Collins.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Sinema and the other Senators for counsel 
for the President:

       The Logan Act prohibits any U.S. citizen without the 
     authority of the United States from communicating with any 
     foreign government with the intent to influence that 
     government's conduct in relation to any controversy with the 
     United States. Will the President assure the American public 
     that private citizens will not be directed to conduct 
     American foreign policy or national security policy, unless 
     they have been specifically and formally designated by the 
     President and the State Department to do so?

  Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for the 
question.
  Let me preface--let me answer in several parts.
  The first is, I just want to make clear that there was no conduct of 
foreign policy being carried on here by a private person.
  The testimony was clear from Ambassador Volker--and I assume that the 
reference would be to Mr. Giuliani, the President's private counsel. 
Ambassador Volker was clear that he understood Mr. Giuliani just to be 
a source of information for the President and someone who knew about 
Ukraine and someone who spoke to the President.
  And, in fact, it was the testimony that it was the Ukrainians, Andriy 
Yermak, who asked to be connected to Mr. Giuliani simply because he was 
someone who could provide information to the President.
  And Ambassador Volker testified that it was not his understanding, he 
did not believe, that Mr. Giuliani was carrying out policy directives 
of the President but, rather, indicating his views of what he thought 
would be something useful for the Ukrainians to convince the President 
of their anti-corruption bona fides. So I just wanted to make that 
point.
  It is, of course, the President's policy always to abide by the laws, 
and I am not in a position to make pledges for the President here, but 
the President's policy is always to abide by the laws, and we continue 
to do so.

[[Page S709]]

  I think it is worth pointing out that many Presidents, starting with 
President Washington, have relied on persons who are their trusted 
confidants but who are not actually employees of the government to 
assist in the conduct of foreign diplomacy.
  President Washington relied on Gouverneur Morris to carry messages in 
certain circumstances, I believe, to the French. FDR had his confidants 
whom he relied on in certain circumstances to be a go-between with 
foreign powers, and there is a list of others. They were mentioned in 
some of the testimony during the House proceedings.
  So I don't think that there is anything--again, as I said, it was not 
here, but there would not be anything improper for a President in some 
circumstances to rely on a personal confidant to be able to convey 
messages or receive messages back and forth from a foreign government 
that would relate to the President's conduct in foreign affairs. That 
is not prohibited but within his authority under the Constitution under 
article II.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  Mr. KENNEDY. Your Honor.
  The CHIEF JUSTICE. The Senator from Louisiana.
  Mr. KENNEDY. Thank you, Your Honor. On behalf of myself and Senator 
Ernst, I send a question to the desk for Mr. Nadler and Mr. Philbin.
  The CHIEF JUSTICE. The question from Senator Kennedy and Senator 
Ernst to both parties, and the House managers will be first:

       If the president asks for an investigation of possible 
     corruption by a political rival under circumstances that 
     objectively are in the national interest, should the 
     president be impeached if a majority of the House believes 
     the president is in it for the wrong reason?

  Mr. Manager NADLER. The President, of course, is entitled to conduct 
foreign policy; he is entitled to look into corruption in the United 
States or elsewhere; he is entitled to use the Department of State or 
any other Departments in that effort. He is not entitled to target an 
American citizen specifically, nor did he do so innocently here. It was 
only after Mr. Biden became an announced candidate for President that 
he suddenly decided that Ukraine ought to look into the Bidens.
  And he made it very clear--he made it very clear--that he wasn't 
interested in an investigation; he was interested in an announcement of 
an investigation just so the Bidens could be smeared.
  So it is probably never suitable for a President to order an 
investigation of an American citizen. If he thinks there is general 
corruption and there is an investigation ongoing, the Justice 
Department certainly can ask the foreign government to assist in an 
investigation. But that wasn't done here. The President specifically 
targeted an individual with an obvious political motive, and I would 
simply say that that is so clear that there is no question that it was 
a political motive against a specific individual.
  There are about 1.8 million companies in Ukraine. The estimates were 
that about half of them were corrupt. The President chose one--the one 
with Mr. Biden.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for the 
question.
  I think the short answer is no; the President should not be 
impeached. And I think what the focus of the question is getting at is 
to the situation of mixed motives, which has come up a couple of times 
here.
  If the President, as chief law enforcement officer, head of the 
executive branch, is in a situation where there is a legitimate 
investigation being pursued and he indicates that it should be pursued, 
is it possible that he should be impeached for that if there is some 
dispute about his motives, whether there is a legitimate basis for that 
conduct? The answer is no, and the House managers themselves, in the 
way they framed their case, recognized this.
  In the House Judiciary Committee report, they repeatedly say that the 
standard they are going to have to meet--they are going to have to show 
that these are sham investigations; these are baseless investigations 
that they are alleging that the President wanted to initiate; and they 
had no legitimate--there was not any legitimate basis for pursuing the 
investigation. I am pretty sure that is page 5 of the House Judiciary 
report.
  They use that standard and they talk about there not being a 
scintilla of evidence about anything that anyone could reasonably want 
to ask about related to the Bidens and Burisma because they know they 
can't get into a mixed-motive scenario, because if you have a 
legitimate basis for asking a question about something, if there is a 
legitimate national interest there, it is totally unacceptable to start 
getting into the field of saying: Well, we are going to impeach the 
President and remove him from office by putting him on the 
psychiatrist's couch to try to get inside his head and find out was it 
48 percent in this motive and 52 in the other--or did he have some 
other rationale? No. If it is a legitimate inquiry in the national 
interest, that is the end of it, and you can't say that we are going to 
impeach the President, remove him from office, decapitate the executive 
branch of the government, disrupt the functioning of the government of 
the country in an election year by trying to parse out subjective 
motives and which percentage of the motive was a good motive or some 
other motive--something like that. If it is a legitimate inquiry in the 
national interest, if that possibility is there, if the national 
interest is there, that is the end of it. Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  I haven't specified this before, but I think it would be best if 
Senators directed their questions to one of the parties or both and 
leave it up to them to figure out who they want to go up to bat, rather 
than particular counsel.
  The Senator from Illinois.
  Mr. DURBIN. Mr. Chief Justice, now I send a question to the desk.
  The CHIEF JUSTICE. The question from Senator Durbin to the House 
managers:

       Would you please respond to the answer that was given by 
     President's counsel to Senator Sinema's question?

  Mr. Manager SCHIFF. Senators, Mr. Chief Justice, in answer to that 
question, we heard a rather breathtaking admission by the President's 
lawyer, and it was said in an understated way, so you might have missed 
it. But what the President's counsel said was that no foreign policy 
was being conducted by a private party here; that is, Rudy Giuliani was 
not conducting U.S. foreign policy. Rudy Giuliani was not conducting 
policy.
  That is a remarkable admission because, to the degree that they have 
attempted to suggest or claim or insinuate that this is a policy 
difference, that a concern over burden-sharing or some big corruption 
was a policy issue, they have now acknowledged that the person in 
charge of this was not conducting policy. That is a startling 
admission.

  So the investigations that Giuliani was charged with trying to get 
Ukraine to announce into Joe Biden, into this Russia propaganda theory, 
they have just admitted were not part of policy. They were not policy 
conducted by Mr. Giuliani.
  So what were they? They were, in the words of Dr. Hill, ``a domestic 
political errand,'' not to be confused with policy. They have just 
undermined their entire argument--even as to mixed motives--because the 
man in charge of it was undergoing a domestic errand.
  You heard a suggestion that he was only doing this because he was 
asked by Andriy Yermak. That is laughable. Giuliani tried to get the 
meeting with Zelensky, remember? And he couldn't get in the door, and 
then he announced that there were enemies around President Zelensky. 
And then they go into the phone call on July 25, and the Ukrainians try 
to persuade the President: You don't have enemies in Ukraine; we are 
only friends. And what was the President's response? I want you to 
``talk to Rudy.'' That is not policy being conducted; that is a 
personal, political errand. They just undermined their entire argument.
  Now the President's counsel also essentially argues, in terms of 
witnesses, if their case is as strong as Mr. Schiff and Mr. Nadler and 
others say, then why do they need witnesses? You know, you can imagine 
a scene in any courtroom in America where, before the trial begins, 
defense counsel for the defendant stands up and says: Your

[[Page S710]]

Honor, if the prosecution's case is so strong, let them prove it 
without witnesses. That is essentially what is being argued here.
  Well, I will make an offer to opposing counsel, who have said that 
this will stretch on indefinitely if you decide to have a single 
witness: Let's cabin the depositions to 1 week.
  In the Clinton trial, it was 1 week of depositions, and do you know 
what the Senate did during that week? They did the business of the 
Senate. The Senate went back to its ordinary legislative business while 
the depositions were being conducted. If you want the Clinton model, 
let's use the Clinton model. Let's take a week.
  Let's take a week to have a fair trial. You can continue your 
business. We can get the business of the country done. Is that too much 
to ask in the name of fairness, that we follow the Clinton model, that 
we take 1 week?
  I mean, are we really driven by the timing of the State of the Union? 
Should that be our guiding principle?
  Can't we take 1 week to hear from these witnesses? I think we can. I 
think we should. I think we must.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The Senator from Alaska.
  Ms. MURKOWSKI. Mr. Chief Justice, I send to the desk a question 
submitted on behalf of myself and Senator Schatz, directed to both 
White House counsel and the House managers.
  The CHIEF JUSTICE. Thank you.
  The question from Senators Murkowski and Schatz directed to both 
parties:

       Would you agree that almost any action a President takes, 
     or indeed any action the vast majority of politicians take, 
     is, to one degree or another, inherently political? Where is 
     the line between permissible political actions and 
     impeachable political actions?

  The President's counsel will go first.
  Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for that 
question, and I think that the question really hits the nail on the 
head.
  As I mentioned the other day, in a representative democracy, elected 
officials almost always have at least one eye looking on to the next 
election and how their actions--their policy decisions, their actions 
in office--will be received by the electorate, and there is nothing 
wrong with that. That is good. It is part of the way representative 
democracy works. So having part of your motives being looking toward 
the next election, looking toward how that will affect electoral 
chances--that is part of the nature of elected office. And to start 
getting into motives about ``Will this affect my prospects in the next 
election?'' and calling that corrupt, and, if you have got that as part 
of your motive, looking into whether you were doing something for 
electoral advantage and saying ``That is going to be a corrupt motive; 
we will say that you can be charged for wrongdoing with that or 
impeached'' is very dangerous because there is almost no way to get 
inside someone's head and parcel out which percentage was one motive 
and which percentage was another motive.
  If you start down that path, it is totally amorphous. This is part of 
the point that Professor Dershowitz was making and that was made here a 
couple of times. This idea of impeaching a President on a theory of 
abuse of power depends entirely on analyzing subjective motives because 
that is what the House managers have suggested--that we are assuming 
there is an act, on its face, that is legitimate and is within the 
President's authority and is not, on its face, in any way unlawful or 
unconstitutional, but solely based on motive, we are going to impeach 
him. And by saying ``Well, if it was really directed at the next 
election, that is the corrupt motive,'' that is a very dangerous path 
because there is always some eye on the next election.
  It ends up becoming a standard so malleable that it really is a 
substitute for a policy difference: If we don't like your policy, we 
attribute it to bad motives. That is something that Justice Iredell 
warned about in the North Carolina ratifying convention, that if you 
base something just on motive because of what he called ``malignity of 
party,'' the other party will always attribute bad motives.
  The CHIEF JUSTICE. Thank you, counsel.
  Mr. Counsel PHILBIN. Thank you.
  Mr. Manager SCHIFF. Senators, I think the answer is yes.
  I think the answer is yes, that public officials are inherently 
political animals. I don't mean that in the derogatory term. They run 
for office; they hold office; they conduct acts as political figures. 
But if we look at what Hamilton had to say about the core of offenses 
that warrant the impeachment power, he talked about the crimes being 
political in character and the remedies being political in character 
because we are not talking about imprisonment here. We are not talking 
about taking away someone's liberty.
  So we are talking about a political punishment for a political crime. 
Now, what is a political crime? Yes, everyone in office has a political 
motivation. But certainly that doesn't mean that we can't draw a line 
between corrupt activity that is undertaken, yes, for a political 
reason and noncorrupt activity. Indeed, we have to draw that line.

  Let's show what Professor Dershowitz had to say about where we should 
draw the line.
  (Text of Videotape presentation:)

       Mr. DERSHOWITZ. If a President does something which he 
     believes will help him get elected--in the public interest--
     that cannot be the kind of quid pro quo that results in 
     impeachment. The fact that he has announced his candidacy is 
     a very good reason for upping the interest in this son. If he 
     wasn't running for President, he's a has-been. He is the 
     former Vice President of the United States. OK, big deal. But 
     if he is running for President, that is an enormous big deal.

  Mr. Manager SCHIFF. So it is certainly true that when public 
officials take actions, they may have in mind, when they make a policy 
judgment, what is the impact on my political career going to be, or, 
what is the impact going to be on my reelection prospects, but that is 
a very different question than whether they can engage in a corrupt act 
to help their election--in this case, to get foreign help to cheat in 
an election.
  I think we can distinguish between the fact that political actors 
have political interests and what the President's defense would argue, 
and that is, if he believes it is in his reelection interest, then no 
quid pro quo is too corrupt. If we go down that road, there is no limit 
to what this or any other President can do. There is no limit to what 
foreign powers will feel they can offer a corrupt President to help 
their reelection if that is the precedent we intend to establish.
  The CHIEF JUSTICE. Thank you, counsel. Thank you, Mr. Manager.
  The Senator from New Jersey.
  Mr. MENENDEZ. Mr. Chief Justice, I have a question, which I send to 
the desk and ask the House managers to respond to it.
  The CHIEF JUSTICE. Thank you. The question for the House managers 
from Senator Menendez:

       The President was seeking investigations from a foreign 
     power based partly on what Fiona Hill called ``a fictional 
     narrative perpetrated and propagated by the Russian security 
     services.'' The US Intelligence Community has warned that the 
     Russian government is already preparing to attack our 
     election in 2020, and the President has said publicly he 
     would welcome foreign interference in our elections. Why 
     should Americans be concerned about foreign interference and 
     why does it matter that the President continues to solicit 
     foreign interference in our elections?

  Mr. Manager CROW. Mr. Chief Justice and Senator, thank you for the 
question.
  Let's outline the facts that we do know about today. None of the 17 
witnesses who testified as part of the House's impeachment inquiry were 
aware of any factual basis to support the allegations that it was 
Ukraine and not Russia that interfered in the 2016 election. FBI 
Director Christopher Wray, who was nominated by President Trump and 
confirmed by this body, stated as recently as this past December that 
we have no reason to believe that Ukraine interfered in the 2016 U.S. 
election. He said: ``We have no information that indicates that Ukraine 
interfered with the 2016 Presidential election.''
  President Trump's own Homeland Security advisor, Tom Bossert, said 
about this allegation: ``It's not only a conspiracy theory, it is 
completely debunked.'' He added: ``Let me just repeat here again, it 
has no validity.''
  And, of course, Ms. Hill, as the question indicated, said ``fictional 
narrative that is being perpetrated and propagated by the Russian 
security services themselves.''

[[Page S711]]

  The U.S. intelligence community has unanimously determined that there 
is no validity to this--our own intelligence and law enforcement. 
Special Counsel Mueller found that Russia's interference was ``sweeping 
and systematic.''
  But don't take our own law enforcement and intelligence community's 
word for it; let's hear what Vladimir Putin himself said recently about 
this. In November of 2019, Mr. Putin was overheard saying: ``Thank God 
no one is accusing us of interfering in the U.S. elections anymore. Now 
they are accusing Ukraine.''
  Let me end with that one because that one demonstrates to me why this 
matters. That one demonstrates to me why anyone in the United States 
should matter. Vladimir Putin could care less about delivering 
healthcare for the people of Russia and building infrastructure in 
Russia. Vladimir Putin, as many people in this Chamber know well--
because I have worked with some of you on this--wakes up every morning 
and goes to bed every night trying to figure out how to destroy 
American democracy, and he has organized the infrastructure of his 
government around that effort.
  This is a battle over resolve. It is the battle over the hearts and 
minds of our people. It is the battle over information and 
disinformation. And if a message from the very top of our government, 
from the very top of our leaders--if the message from some folks over 
the last couple of weeks is that facts don't matter, that our law 
enforcement doesn't matter, that our intelligence communities' 
unanimous consensus doesn't matter, that is dangerous. That is what 
Vladimir Putin and Russia are looking for, and that makes us less safe.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The Senator from Wisconsin.
  Mr. JOHNSON. Mr. Chief Justice, I send a question to the desk on 
behalf of myself and Senators Hawley, Cruz, Cramer, Braun, Perdue, 
Barrasso, Rubio, Risch, Sullivan, Ernst, Scott of Florida, Daines, and 
Fischer for both the House managers, with response from the counsel for 
the President.
  The CHIEF JUSTICE. Thank you. The question from Senator Johnson and 
the other Senators for both parties:

       Recent reporting described two NSC staff holdovers from the 
     Obama Administration attending an ``all hands'' meeting of 
     NSC staff held about two weeks into the Trump Administration 
     and talking loudly enough to be overheard saying ``we need to 
     do everything we can to take out the President.'' On July 26, 
     2019, the House Intelligence Committee hired one of those 
     individuals, Sean Misko. The report further describes 
     relationships between Misko, Lt Col Vindman, and the alleged 
     whistleblower. Why did your committee hire Sean Misko the day 
     after the phone call between President Trump and Zelensky, 
     and what role has he played throughout your committee's 
     investigation?

  The House will begin.
  Mr. Manager SCHIFF. First of all, there have been a lot of attacks 
upon my staff, and, as I said when this issue came up earlier, I am 
appalled at some of the spearing of the professional people that work 
for the Intelligence Committee.
  Now, this question refers to allegations in a newspaper article which 
are circulating smears on my staff and asks me to respond to those 
smears, and I will not dignify those smears on my staff by giving them 
any credence whatsoever; nor will I share any information that I 
believe could or could not lead to the identification of the 
whistleblower.
  I want to be very clear about something. Members of this body used to 
care about the protection of whistleblower identities. They didn't used 
to gratuitously attack members of committee staff, but now they do. Now 
they do. Now they will take an unsubstantiated, repressed article and 
use it to smear my staff. I think that is disgraceful. I think it is 
disgraceful.
  You know, whistleblowers are a unique and vital resource for the 
intelligence community. And why? Because, unlike other whistleblowers 
who can go public with their information, whistleblowers in the 
intelligence community cannot because it deals with classified 
information. They must come to a committee. They must talk to the staff 
of that committee or to the inspector general. That is what they are 
supposed to do. Our system relies upon it. And when you jeopardize a 
whistleblower by trying to out them this way, then you are threatening 
not just this whistleblower but the entire system.
  Now, the President would like to have nothing better than that, and I 
am sure the President is applauding this question because he wants his 
pound of flesh and he wants to punish anyone that has the courage to 
stand up to him. Well, I can't tell you who the whistleblower is 
because I don't know, but I can tell you who the whistleblower should 
be. It should be every one of us. Every one of us should be willing to 
blow the whistle on Presidential misconduct. If it weren't for this 
whistleblower, we wouldn't know about this misconduct, and that might 
be just as well for this President, but it would not be good for the 
country.
  And I worry that future people that see what I am doing are going to 
watch how this person has been treated, the threats against this 
person's life, and they are going to say: Why stick my neck out? Is my 
name going to be dragged through the mud?
  Will people join our staff if they know that their names are going to 
be dragged through the mud?
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  Mr. Counsel SEKULOW. Mr. Chief Justice and Members of the Senate, 
there are two responses that I would like to get to, one with regard to 
the issue of witnesses and, in this case, the whistleblower.
  Mr. Schiff put the whistleblower issue front and center with his own 
words during the course of their investigation. He talked about the 
whistleblower testifying.
  Retribution is what is prohibited under the statute, against a 
whistleblower. That is what the whistleblower statute protects, that 
there is no retribution. In other words, you are not being fired from 
blowing the whistle.
  But this idea that there is complete anonymity--and I am not saying 
that we should disclose the individual's name. I would be happy to 
handle that in executive session or any way you want. But we can't just 
say it is not a relevant inquiry to know who on the staff that 
conducted the primary investigation here was in communication with that 
whistleblower, especially after Mr. Schiff denied that he or his staff 
initially had even had any conversations with the whistleblower.
  It goes back to the whole witness issue. I want to go to that for 
just 30 seconds here. It seems to me that the discussion on witnesses--
I heard what Mr. Schiff said about the 30--we will do depositions in a 
week. The Democratic leader said I can have any witnesses I want 
yesterday. I got it from the transcript. And you couldn't get all the 
witnesses you want in a week. You couldn't get the discovery done in a 
week.
  But if, in fact--if, in fact, they believe they have presented this 
overwhelming case that they have, all--they talked about subterfuge and 
smokescreens. The smokescreen here is that they used 13 of their 17 
witnesses to try to prove their case, and we were able to use those 
very witnesses to undercut that case. So I think we just have to keep 
that in perspective.
  Thank you, Mr. Chief Justice.
  The CHIEF JUSTICE. Thank you, counsel.
  Mrs. MURRAY. Mr. Chief Justice.
  The CHIEF JUSTICE. The Senator from Washington.
  Mrs. MURRAY. Thank you, Mr. Chief Justice. I send a question to the 
desk for the House managers.
  The CHIEF JUSTICE. Thank you.
  The question for the House managers from Senator Murray:

       If there are no consequences to openly defying a valid 
     congressional subpoena, how will Congress be able to perform 
     its constitutional oversight responsibility to make sure any 
     administration is following the law and acting in the best 
     interests of American families?

  Ms. Manager GARCIA of Texas. Well, they could have very serious, 
devastating, and dire consequences. If the Senate ignores President 
Trump's ongoing obstruction of Congress, it would lead to the end of 
congressional oversight as we know it today.
  President Trump's attorneys argued that our congressional subpoenas 
are constitutionally invalid until a court determines otherwise. Their 
argument is false, and it is an attack on congressional oversight 
powers.

[[Page S712]]

  A vote against article II is a vote to condone President Trump's 
corrupted view of America's constitutional balance. Voting against 
article II would grant President Trump--and every other President from 
now until forever--the power to simply ignore all congressional 
subpoenas unless and until we seek a court to enforce it.
  Under President Trump's view, even if all of you Senators were to 
vote to favor to issue a subpoena for documents or witnesses, the 
administration could still ignore them until a court ruled on it.
  I think Mr. Schiff addressed some of that earlier in another 
question. You could go to court to enforce it. Then, it would get 
appealed, then, go back to court. We could go on and on because, quite 
frankly, that is what their position is.
  So, again, as Mr. Schiff said earlier, imagine yourselves having 
jurisdiction over an item that you care deeply about, and you needed 
information. You heard of some wrongdoing. You heard there was a 
whistleblower complaint on something, and you decided that you wanted 
to do a hearing. It is very possible that the President would just 
flatly refuse your subpoena, because, if we ignore article II, that 
would be the precedent--to ignore all subpoenas.
  But we need you to issue a subpoena for us today not only to get Mr. 
Bolton here but Mr. Duffey, Mr. Mulvaney, and everyone else with 
relevant evidence on this case.
  Now, when the administration exerts executive privilege, there might 
be some privilege, one, that is available to them on any of these 
documents, but those have to be asserted with every document as we send 
a subpoena.
  So don't buy the White House argument that our subpoenas are invalid 
because we don't have any authority to issue them. We know we do. You 
know we do. So let's make sure that this body will make sure that no 
future President will just simply defy, disrespect, and ignore 
subpoenas because some day you may be in our shoes wanting to get 
information, wanting to get to the bottom line to ensure that no 
President is above the law.
  Thank you.
  The CHIEF JUSTICE. Thank you, Ms. Manager.
  Mr. SULLIVAN. Mr. Chief Justice.
  The CHIEF JUSTICE. The Senator from Alaska.
  Mr. SULLIVAN. Mr. Chief Justice, I send a question to the desk on 
behalf of myself, Senators Risch, Blunt, Kennedy, Johnson, and Capito 
for the President's counsel.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Sullivan and the other Senators for counsel 
for the President:

       Given that the Senate is now considering the very 
     evidentiary record assembled and voted on by the House, which 
     Chairman Nadler has repeatedly claimed constitutes 
     overwhelming evidence for impeachment, how can the Senate be 
     accused of engaging in, what Mr. Nadler described as ``a 
     coverup,'' if the Senate makes its decision based on the 
     exact same evidentiary record the House did?

  Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for that 
question.
  I think that is exactly right. I think it is rather preposterous to 
suggest that this Senate would be engaging in a coverup to rely on the 
same record that the House managers have said is overwhelming.
  They have said it dozens of times. They have said that, in their 
view, they have had enough evidence presented already to establish 
their case beyond any doubt, not just beyond a reasonable doubt. And it 
is totally incoherent to claim at the same time that it would be 
improper for the Senate to rely on that record.
  Your judgment may be and should be, we submit, different from the 
House managers' assessment of that evidence because it hasn't 
established their case at all. But if they are willing to tell you that 
it is complete and it has everything they need--it has everything they 
need to establish everything they want--I think you should be able to 
take them at their word that that is all that is there.
  And to switch now to say, ``Well, no, we need more; we need more 
witnesses,'' I think just demonstrates that they haven't proved their 
case. They don't have the evidence to make their case.
  As I went through a minute ago, they have already presented a record 
with over 28,000 pages of documents that is here. They have already 
presented video clips of 13 witnesses. You have heard all of the key 
evidence that they gathered. It was their process. They were the ones 
who said what the process was going to be, how it had to be run, who 
ought to testify, when to close it, when to decide they had enough, and 
you heard all the key highlights from that, and that is sufficient for 
this body to make a decision.
  In the time I have remaining, I just want to turn to one point in 
response to something that was said a couple of minutes ago. We keep 
hearing repeatedly today the refrain of the idea that President Trump 
was somehow trying to peddle Vladimir Putin's conspiracy theory that it 
was Ukraine and not Russia that interfered in the 2016 election. And 
the House Democrats tried to present this binary view of the world that 
only one country, and one country alone, could have done something to 
interfere in the election, and it was Russia. And if you mention any 
other country doing something related to election interference, you are 
just a pawn of Vladimir Putin, trying to peddle his conspiracy 
theories.
  That is obviously not true. More than one country and foreign 
nationals from more than one country could be doing different things 
for different reasons in different ways to try to interfere in the 
election, and that is exactly what President Trump was interested in.
  In the telephone call, the July 25 transcript, he mentions 
CrowdStrike. He mentions the server. But he talks about--he says:

       There are a lot of things that went on, the whole 
     situation. I think you're surrounding yourself with some of 
     the same people.

  So he is talking about much more than just the DNC server. And he 
closes it again, saying--he refers to Robert Mueller's testimony, and 
he says: ``They say a lot of it started in Ukraine.'' There are just a 
lot of stuff going on. Twice in that exchange he says there is a lot of 
stuff--the whole situation.
  And what is that referring to, surrounding yourself with the same 
people? President Zelensky refers immediately to changing out the 
Ambassador because the previous Ambassador, who had been there under 
Poroshenko, had written an op-ed criticizing President Trump during the 
election.
  We also know that there was a POLITICO article in January 2017 
cataloging multiple Ukrainian officials who did things either to 
criticize President Trump or to assist a DNC operative, Alexandra 
Chalupa, in gathering information against the Trump campaign.
  And they said: There was no evidence in the record; no one said that 
there was anything done by Ukraine.
  That is not true. One of their star witnesses, Fiona Hill, 
specifically testified in her public hearing, because she said she went 
back and checked because she hadn't recalled the POLITICO article. And 
then she said that she acknowledged that some Ukrainian officials ``bet 
on Hillary Clinton winning the election.'' And so it was quite evident, 
in her words, that they were trying to favor the Clinton campaign, 
including trying to collect information on people working in the Trump 
campaign. That was Fiona Hill. She acknowledged the Ukrainian officials 
were doing that.
  So this idea that it is a binary world--it is either Russia or 
Ukraine; if you mention Ukraine, you are just doing Vladimir Putin's 
bidding--is totally false, and you shouldn't be fooled by that.
  Ukrainians--various Ukrainians--were doing things to interfere in the 
election campaign, and that is what President Trump was referring to.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from Vermont.
  Mr. LEAHY. Mr. Chief Justice, I ask to send a question to the desk on 
behalf of myself and Senator Blumenthal to the House managers.
  The CHIEF JUSTICE. Thank you, Senator.
  The question for the House managers from Senator Leahy and Senator 
Blumenthal:

       The President's counsel claimed, ``If a president does 
     something which he believes will help him get elected in the 
     public interest that cannot be the kind of quid pro quo that 
     results in impeachment.'' He added a

[[Page S713]]

     hypothetical, ``'I think I'm the greatest president there 
     ever was and if I'm not elected, the national interest will 
     suffer greatly.' That cannot be an impeachable offense.'' 
     Under this view, there is no remedy to prevent a president 
     from conditioning foreign security assistance, in violation 
     of the Impoundment Control Act, on the recipient's 
     willingness to do the president a political favor. If the 
     Senate fails to reject this theory, what would stop a 
     president from withholding disaster aid funding from a U.S. 
     city until that mayor endorses him? What would stop the 
     president from withholding nearly any part of the $4.7 
     trillion annual federal budget subject to his personal 
     political benefit?

  Mr. Manager JEFFRIES. Mr. Chief Justice, distinguished Members of the 
Senate, I thank the Senators for that very important question.
  Certainly, what we have alleged in this case is that the President 
solicited a personal political benefit in exchange for an official act, 
solicited dirt on a political opponent in exchange for the release of 
$391 million in military aid, and solicited dirt in exchange for a 
White House meeting. And if this Senate were to say that is acceptable, 
then, precisely as was outlined in that question could take place all 
across America in the context of the next election and any election--
grants allocated to cities or towns or municipalities across the 
country, where the President could say: You are not going to get that 
money, Mr. Mayor, Mrs. County Executive, Mrs. Town Supervisor, unless 
you endorse me for reelection. The President could say that to any 
Governor of our 50 States.
  That is unacceptable. That cannot be allowed to happen in our 
democratic Republic.
  Now, by my count, as of this afternoon, the Framers of the 
Constitution and the Founders of our great Republic had been quoted 
either directly or mentioned by name 123 times: Alexander Hamilton, 48 
times; James Madison, 35 times; George Washington, 24 times; John 
Adams, 8 times; Thomas Jefferson and Ben Franklin, pulling up the rear, 
4 times.
  It seems to me that Ben Franklin and Thomas Jefferson need a little 
bit more love, and so let me try to do my part.
  Thomas Jefferson once observed that ``tyranny is defined as that 
which is legal for the government but illegal for the citizenry.'' 
``Legal for the government but illegal for the citizenry''--that is 
what we confront right now.
  President Trump corruptly abused his power. He targeted an American 
citizen, pressured a foreign government to try to cheat in the upcoming 
election, and the President's counsel would have you believe that is OK 
because he is the President of the United States.
  But our fellow citizens cannot cheat the Workers' Compensation Board 
by claiming a fake injury and escape accountability. Our fellow 
citizens cannot cheat the stock market by engaging in insider trading 
and then escape accountability. Our fellow citizens cannot cheat the 
college admissions process in order to get their child into an elite 
university and then escape accountability.
  Why should the President of the United States be allowed to cheat in 
the upcoming election and escape accountability?
  Tyranny is defined as that which is legal for the government and 
illegal for the citizenry.
  The President's counsel has suggested that President Trump can do 
anything--anything that he wants--and escape accountability. President 
Trump can solicit foreign interference in the upcoming election and 
escape accountability. He can cheat and escape accountability. He can 
engage in a coverup and escape accountability. He can corruptly abuse 
his power, escape accountability; elevate his personal political 
interest, subordinate America's national security interest, and escape 
accountability.
  That is the Fifth Avenue standard of Presidential accountability: I 
can do anything I want. I can shoot someone on Fifth Avenue, and it 
doesn't matter.
  No. Lawlessness matters. Abuse of power matters. Corruption matters. 
The Constitution matters.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The Senator from Louisiana.
  Mr. CASSIDY. Mr. Chief Justice, I send a question to the desk on 
behalf of myself and Senator Risch to both the House managers and the 
White House counsel. And although I cannot pick, ideally, it would be 
Manager Lofgren.
  The CHIEF JUSTICE. The question from Senators Cassidy and Risch for 
both parties is as follows:

       In the Clinton proceedings, we saw a video of Manager 
     Lofgren saying, ``This is unfair to the American people. By 
     these actions you would undo the free election that expressed 
     the will of the American people in 1996. In so doing, you 
     will damage the faith the American people have in this 
     institution and in the American democracy. You will set the 
     dangerous precedent that the certainty of Presidential terms, 
     which has so benefited our wonderful America, will be 
     replaced by the partisan use of impeachment. Future 
     Presidents will face election, then litigation, then 
     impeachment. The power of the President will diminish in the 
     face of the Congress, a phenomena much feared by the Founding 
     Fathers.''
       What is different now? If the response is that the country 
     cannot risk the President interfering in the next election, 
     isn't impeachment the ultimate interference? How does this 
     not cheat those who did and/or would vote for President Trump 
     from their participation in the democratic process? I ask 
     Manager Lofgren to address the question directly and to not 
     avoid, as Manager Jeffries did with a related question last 
     night.

  The President's counsel answers first.


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

  
  On page S713, January 30, 2020, second column, the following 
appears: Oh. The President's counsel answers first.
  
  The online Record has been corrected to read: The President's 
counsel answers first.


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


  Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice, Members of the 
Senate.
  Well, as I have said before, I agree 100 percent with Manager 
Lofgren's comments from the past, and I think they should guide the 
Senate. There is really no better way to say it.
  What they are doing here--they keep falsely accusing the President of 
wanting to cheat, when they are coming here and telling you ``take him 
off the ballot'' in a political impeachment. Talk about cheating. You 
don't even want to face him.
  And let me say one more thing while I am up here. I listened to 
Manager Schiff come up here and say he won't even dignify a legitimate 
question about his staff with a response because he won't stand here 
and listen to people on his staff be besmirched--who will join his 
staff.
  Since the beginning of this Congress, Manager Schiff, the other House 
managers, and others in the House have falsely accused the President--
and they have come here and done it--the Vice President, the Secretary 
of State, the Attorney General, the Chief of Staff, lawyers on my 
staff--false accusations, calumny after calumny, in dulcet tones. And 
that is wrong.
  And when you turn that around and say he will not respond to a 
legitimate question that I ask--it is a legitimate question: Who 
communicated with the whistleblower? Why were you demanding something 
that you already knew about?
  I asked him, in another part of my October 8 letter that doesn't get 
a lot of attention from Mr. Schiff--I said: You have the full ability 
to release these documents on your own. No response.
  So I think--I think you deserve an answer to that question, and I 
think it is time in this country that we start--that we stop assuming 
that everybody has horrible motives, in the puritanical rage of just 
everybody is doing something wrong except for you--you cannot be 
questioned. That is part of the problem here.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  Ms. Manager LOFGREN. Mr. Chief Justice and Senators, I was a member 
of the House Judiciary Committee during the Clinton impeachment, and I 
was a member of the staff of a member of the Judiciary Committee during 
the Nixon impeachment. And during the Clinton impeachment, I found 
myself comparing what we were doing in Clinton to what we were doing or 
had done with Nixon, and here is what I saw and I still see today: a 
special prosecutor started with Whitewater, spent several years, until 
they found DNA on a blue dress. And they had a lie. The President lied 
about a sexual affair under oath, and that was wrong. It was a crime, 
but it was not a misuse of Presidential power.
  Any husband caught would have lied about it. It was wrong, but it was 
not a misuse of Presidential power. And so, throughout the Clinton 
matters, I kept raising the issue that it was a misuse--and it turned 
out to be a partisan misuse--of impeachment to equate a lie about a 
sexual affair to a high crime and misdemeanor.

[[Page S714]]

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

  I would add, unfortunately, that I never thought I would be in a 
third impeachment. Unfortunately, that is what we see in this case with 
President Trump.
  The CHIEF JUSTICE. Thank you, Ms. Manager.
  The Senator from West Virginia.
  Mr. MANCHIN. Mr. Chief Justice, I send a question to the desk on 
behalf of myself, Senator Gillibrand, and Senator Schatz to the 
President's counsel and the House managers.
  The CHIEF JUSTICE. Thank you. The question from Senators Manchin, 
Gillibrand, and Schatz for both parties:

       Have you ever been involved in any trial--civil, criminal, 
     or other--in which you were unable to call witnesses or 
     submit relevant evidence?

  I believe the House is first.
  Mrs. Manager DEMINGS. Thank you, Mr. Chief Justice, and thank you to 
the Senator for the question.
  I want us to imagine for just a moment someone broke into your house; 
stole your property; police caught them; they returned the property. 
Now, the fact that they returned the property changes nothing. They 
would still be held accountable.
  But imagine if they had the power to obstruct every witness, prevent 
witnesses from appearing. Imagine if they had the power to destroy or 
obstruct any evidence in the case against them from being presented to 
the court.
  I have had the opportunity to appear in a lot of hearings and be a 
part of building a lot of cases. We all know. I know everybody here 
knows that witness testimony and evidence or documentation in a case is 
everything. It is the life and breath of any case. It is the 
prosecutor's dream or the police officer's or detective's dream to have 
information and evidence.
  It truly baffles me, really, as a 27-year law enforcement officer, 
that we would not accept or welcome or be delighted about the 
opportunity to hear from direct witnesses, people who have firsthand 
knowledge.
  We know that the President cannot be charged with a crime. We know 
that. The Department of Justice has already ruled on that. But the 
remedy for that is impeachment. That is the tool that, as we know, has 
solely been given--that power, solely--to the House of Representatives, 
solely tried before the Senate.
  So, to answer your question, it is extremely--let me say it this way: 
Only in a case where there are no available witnesses or no available 
evidence have I ever seen that occur.
  Thank you.
  The CHIEF JUSTICE. Thank you, Mrs. Manager.
  Counsel.
  Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice, Members of the 
Senate.
  I would respond to that question in this way. Thank you for the 
question. The House managers controlled the process in the House. I 
think we can all agree to that. They were in charge, and they ran it. 
And they chose not to allow the President's counsel to have any 
witnesses. And they chose not to call the witnesses that they are now 
asking you to call, demanding you to call, accusing you of a coverup if 
you don't call.
  I have never been in any proceeding, trial or otherwise, where you 
show up on the first day, and the judge says: Let's go. And you say: 
Well, I'm not ready yet. Let's stop everything. Let's take a bunch of 
depositions.
  Well, did you subpoena the witnesses you are now seeking?
  Well, some but not others.
  Well, when you did subpoena them, did you try to enforce that 
subpoena in court?
  No.
  The other witnesses that you did subpoena, did they go to court?
  Yes.
  What did you do? I withdrew the subpoena and mooted out the case. And 
now I want them. I want them. Otherwise, you are doing the coverup.
  Let me make another point because they keep making this point: What 
will we do? The President is not producing documents.
  I would like to refresh your recollection about the Mueller 
investigation, OK. The Mueller investigation had 2,800 subpoenas, 500 
search warrants, 500 witnesses. The President's Counsel, the Chief of 
Staff, and many, many others from the administration testified. 
Documents--voluminous documents--were produced. And what happened? Bob 
Mueller came back with a conclusion. He announced it. There was no 
collusion.
  What did the House do? They didn't like it. Didn't like the outcome. 
So what did they do? They wanted a do-over. They wanted to do it all 
again themselves, despite the $34 million or more that was spent.
  So I don't think anybody really believes that the Trump 
administration hasn't fully cooperated with the investigations. The 
problem is, when they don't like the outcome, they just keep 
investigating. They keep wasting the public's money because they don't 
really care about truth; they care about a political outcome.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from Utah.
  Mr. LEE. Mr. Chief Justice, I send a question to the desk on behalf 
of myself and Senators Hawley, Ernst, and Braun.
  The CHIEF JUSTICE. The question for counsel for the President from 
Senator Lee and other Senators:

       Under the standard embraced by the House Managers, would 
     President Obama have been subject to impeachment charges 
     based on his handling of the Benghazi attack, the Bergdahl 
     swap, or DACA? Would President Bush have been subject to 
     impeachment charges based on his handling of NSA 
     surveillance, detention of combatants, or use of 
     waterboarding?

  Mr. Counsel HERSCHMANN. Thank you, Mr. Chief Justice, Members of the 
Senate. Under the standard, which is no standard that they bring their 
impeachment to the Senate, any President would be subject to 
impeachment for anything. Presidents would be subject to impeachment 
for exercising longstanding constitutional rights, even when the House 
chose not to enforce their subpoenas under their vague theory of abuse 
of power.
  I guess any President--as Professor Dershowitz, he had a long list of 
Presidents who might have been subject to impeachment. So I am not 
going to go through the particular incidents because I don't want to 
besmirch past Presidents.
  I don't think the standard that they announced is helpful. I think it 
is very dangerous. I mean, you might want to get a lock on that door 
because they are going to be back a lot if that is the standard.
  The truth of the matter is, you don't have to look at anything. They 
are talking about witnesses. You don't have to look at anything, except 
the Articles of Impeachment.
  I tried to seek areas of agreement. I think we all agree that they 
don't allege a crime. That is why they spend all their time saying you 
don't need one. I remember one of the clips I showed where someone was 
saying, with a lot of passion, they are trying to cross out ``high 
crime'' and make it ``any crime.'' Now they are trying to cross out 
``crime,'' any crime. No crime is necessary.
  That is not what impeachment is about. This is dangerous. And it is 
more dangerous because it is an election year. So, yes, under the 
standardless impeachment, any President can be impeached for anything. 
And that is wrong. By the way, they should be held to their Articles of 
Impeachment. A lot of what they are trying to sell here, their own 
House colleagues weren't buying. They didn't make it into the Articles 
of Impeachment.
  Read the Articles of Impeachment. They don't allege a crime. They 
don't allege a violation of law. You don't need anything else, except 
their Articles of Impeachment, your Constitution, and your common 
sense, and you can end this. Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from Michigan.
  Ms. STABENOW. Thank you, Mr. Chief Justice.

[[Page S715]]

  I send a question to the desk on behalf of myself, Senator Cortez 
Masto, and Senator Rosen.
  The CHIEF JUSTICE. The question for the House managers from Senators 
Stabenow, Cortez Masto, and Rosen to both parties:

       In June 2019, Ellen Weintraub, then-chair of the Federal 
     Election Commission, wrote in a statement that ``It is 
     illegal for any person to solicit, accept, or receive 
     anything of value from a foreign national in connection with 
     a U.S. election. This is not a novel concept. Electoral 
     intervention from foreign governments has been considered 
     unacceptable since the beginnings of our nation.'' In a 2007 
     advisory opinion, the FEC found that campaign contributions 
     from foreign nationals are prohibited in federal elections, 
     even if ``the value of these materials may be nominal or 
     difficult to ascertain.'' How valuable would a public 
     announcement of an investigation into the Bidens be for 
     President Trump's reelection campaign?

  Begin with the White House Counsel.
  Mr. Counsel PHILBIN. Mr. Chief Justice and Senators, thank you for 
the question.
  The idea that these investigations were a thing of value--something 
that was specifically examined by the Department of Justice--as I 
explained the other day, the inspector general for the intelligence 
community wrote a cover letter on the whistleblower complaint, in which 
he had actually exaggerated in the complaint--the idea that there was a 
demand for some assistance with the President's reelection campaign. 
That was forwarded to the Department of Justice. They examined it, and 
they announced back in September that there was no election law 
violation because it did not qualify as a thing of value. I think that 
that issue has been thoroughly examined by the Department of Justice 
here.
  I just want to clarify one thing. The other day there was--yesterday 
there was a question about information coming from overseas, and I was 
asked a question about that. And I want to be very precise; that I 
understood the question to be about was there a violation of a campaign 
finance law, would there be one if someone simply got information from 
overseas? And the answer is no, as a matter of law.
  Think about this. If pure information--if information that came to 
someone in a campaign could be called a thing of value, if it comes 
from overseas, a thing of value is a prohibited campaign contribution; 
it is not allowed. If it comes from within the country, it has to be 
reported.
  So that would mean that anytime a campaign got information from 
within the country about an opponent or about something else that maybe 
would be useful in the campaign, they would have to report the receipt 
of information as a thing of value under the campaign finance laws.
  That is not how the laws work, and there would be tremendous First 
Amendment implications if someone attempted to enforce the laws that 
way. So that is simply the point that I wanted to make.
  Pure information that is credible information is not something that 
is prohibited from being received under the campaign finance laws.
  The CHIEF JUSTICE. Thank you, counsel.
  Mr. Manager SCHIFF. Mr. Chief Justice.
  The CHIEF JUSTICE. Yes, Mr. Manager.
  Mr. Manager SCHIFF. How valuable would it be for the President to get 
Ukraine to announce his investigations? And the answer is immensely 
valuable. And if it wasn't going to be immensely valuable, why would 
the President go to such lengths to make it happen? Why would he be 
willing to violate the law, the Impoundment Control Act; why would he 
be willing to ignore the advice of all of his national security 
professionals; why would he be willing to withhold hundreds of millions 
of dollars from an ally at war if he didn't think it was going to 
really benefit his campaign? You have only to look at the President's 
actions to determine just how valuable he believed it would be to him.
  Now, how would he make use of this? Well, if we look in the past, we 
get a perfect illustration of how Donald Trump would have made use of 
this political help from Ukraine.
  Let's look at 2016, when the Russians hacked the DCCC and the DNC, 
and they started dripping out these documents through WikiLeaks and 
other Russian platforms.
  What did the President do? Did he make use of it? Did he condemn it? 
Oh, he made beautiful use of it. Over 100 times in the last 3 months of 
the campaign, the President brought up time after time after time, 
rally after rally after rally, the Clinton Russian stolen documents.
  We have had a debate since then. What was the impact of the Russian 
interference in 2016? In an election that close, was it decisive? No 
one will ever know. Was it valuable? You only have to look at Donald 
Trump's actions to know just how valuable he thought it was. He thought 
it was immensely valuable.
  And you can darn well expect that if he had gotten this help from 
Ukraine, he would be out there every day talking about how Ukraine was 
investigating Joe Biden, and Ukraine is conducting an investigation 
into Joe Biden. It would be proof of his argument against his feared 
opponent.
  You are darn right it would be valuable. What is more, it is illegal. 
And do we have to go through all the turmoil of the Russian 
interference perhaps to have the President do it all over again?
  One of the things I found so significant was the day after Bob 
Mueller reached his conclusion that this President was back on the 
phone asking yet another country to help cheat in another election. You 
are darn right that would have been valuable.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  Mr. GRAHAM. Mr. Chief Justice.
  The CHIEF JUSTICE. The Senator from South Carolina.
  Mr. GRAHAM. I send a question to the desk on behalf of myself, 
Senators Cruz and Cornyn, for both parties.
  The CHIEF JUSTICE. Thank you.
  The question from Senators Graham, Cornyn, and Cruz is for both 
parties:

       When DOJ Inspector General Horowitz testified before the 
     Judiciary Committee, he said their DOJ had a ``low 
     threshold'' to investigate the Trump campaign. At the 
     hearing, Sen. Feinstein said, ``your report concluded that 
     the FBI had an adequate predicate, reason, to open the 
     investigation on the Trump campaign ties to Russia. Could you 
     define the predicate?'' Horowitz replied, ``yeah, so the 
     predicate here was the information that the FBI got at the 
     end of July from the friendly foreign government.'' Why is 
     the legal standard for investigating Trump so much lower than 
     the standard for investigating Biden? And why was it ok to 
     get the information from a ``friendly foreign government?''

  The House managers are first.
  Mr. Manager SCHIFF. The inspector general's report found that the 
investigation was properly predicated. That was the bottom-line 
conclusion that this was not a politically motivated investigation.
  The inspector general also found, though, there were serious flaws 
with the FISA Court process. There were serious flaws on how the FISA 
applications were written in the information that was used and 
prescribed a whole series of remedies, which the FBI Director has now 
said should be implemented. But they found it was properly predicated. 
They found they did not have to ignore the evidence that had come to 
their attention that the campaign for the President was having illicit 
contacts, potentially; that it may be colluding or conspiring with a 
foreign power. Indeed, it would have been derelict for them to ignore 
it.
  But the argument--the implicit argument here is, because there were 
problems, albeit serious problems, on the FISA Court application 
involving a single person, that somehow we should ignore the 
President's conduct here; that somehow that justifies the President's 
embrace of the Russian propaganda; that somehow that justifies the 
President's distrust of the entire intelligence community; that somehow 
that justifies his ignoring what his own Director of the FBI said, 
which his lawyers ignore today, which is there is no evidence that 
Ukraine interfered in the 2016 election. Because of a single FISA 
application against a single person and the flaws in it, you should 
ignore the evidence of the President's wrongdoing. Turn away from that. 
Let's not look at whether the President conditioned military aid and a 
White House meeting on help with an investigation. Let's look at flaws 
in how the FBI conducted a FISA application. The one does not follow 
from the other.
  The reality is that what you must judge here is: Did the President 
commit the conduct he is charged with?

[[Page S716]]

Did the President withhold military aid and a coveted meeting to secure 
foreign interference in the election? And if he did, as we believe we 
have shown, does that warrant his removal from office? That is the 
issue before you, whether the FBI made one mistake or five mistakes 
with the FISA application.
  Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the Senate, let me 
actually answer the question.
  The inspector general said, in a response actually from Senator 
Graham, when James Comey said he was vindicated by the inspector 
general's report, the inspector general said: No one who touched this 
was vindicated.
  With regard to the FISA--you make so light, Manager Schiff, of what 
the FBI did. It wasn't a FISA warrant. There was an order unsealed just 
days ago saying the process was so tainted by the Federal Bureau of 
Investigation--so tainted--that not only was the NSD misled, but so was 
the FISA Court.
  For those that don't know that are watching, the FISA Court--you 
can't blame the court on this, by the way. You have to blame the 
Federal Bureau of Investigations for allowing this to happen. That is 
the court that issues warrants on people that are alleged to be spies. 
There are no lawyers in those proceedings. There is no cross-
examination. The court itself in its order said: We rely on the good 
faith of the officers presenting the affidavits.
  Are there two standards for investigations? That is an 
understatement. But to belittle what took place in the FISA 
proceedings--frankly, Manager Schiff, you know better than that.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from Illinois.
  Mr. DURBIN. Mr. Chief Justice, I send a question to the desk.
  The CHIEF JUSTICE. The question from Senator Durbin is to both 
parties.

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



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

  
  On page S716, January 30, 2020, first column, the following 
appears: Emails between DOD and OMB officials reveal that by 
August 12 the Pentagon could no longer guarantee that all of the 
$250 million in DOD aid to Ukraine could be spent before it 
expired. Deputy Secretary of Defense Norquist drafted a letter and 
stated that the Pentagon had ``repeatedly advised OMB officials 
that pauses beyond August 19 jeopardize the Department's ability 
to obligate USAI funding prudently and fully.'' Why did the 
President persist in withholding the funds when DOD officials were 
sounding the alarm that the hold would violate the law and short-
change an ally of needed military aid?
  
  The online Record has been corrected to read: Emails between DOD 
and OMB officials reveal that by August 12 the Pentagon could no 
longer guarantee that all of the $250 million in DOD aid to 
Ukraine could be spent before it expired. Deputy Secretary of 
Defense Norquist drafted a letter and stated that the Pentagon had 
``repeatedly advised OMB officials that pauses beyond August 19 
jeopardize the Department's ability to obligate USAI funding 
prudently and fully.'' Why did the President persist in 
withholding the funds when DOD officials were sounding the alarm 
that the hold would violate the law and short-change our ally of 
needed military aid?


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


  It is the turn of the White House counsel to go first.
  Mr. Counsel PHILBIN. Mr. Chief Justice and Senator, thank you for 
that question.
  I think the thing to understand is, there was a series of 
communications reflected, I believe, in the letter that OMB has sent to 
the JAO and in some of the testimony in the proceeding below that the 
Office of Management and Budget was encouraging DOD to take what steps 
it could to get everything lined up, have everything ready to obligate 
the funds so everything would be able to move quickly when the pause 
was lifted.
  The email you mentioned suggests--was saying: We are running out of 
time. We are running out of time. We are going to have difficulty doing 
it.
  But the fact was that the deadline for obligating the funds was not 
going to be until the end of the fiscal year. And as it turned out, as 
I explained earlier in response to Senator Lankford's question, the 
funds were released on September 11, and the vast majority of them were 
obligated by the end of the fiscal year, so that the procedures that 
had been used to try to get everything preplanned were mostly 
successful.
  Yes, there were some funds--I believe it was $35 million--that did 
not get out of the door by the end of the fiscal year--slightly more 
than in past years. But in every year--in fiscal year 2017, fiscal year 
2018--there were funds in the security assistance program that didn't 
make it out of the door by the end of the year. Each of those years, 
there was also a little fix in either the appropriations bill or CR to 
allow those funds to carry over.
  So the planning had been to try to ensure that when the decision was 
made to release the funds, it would be done by the end of the fiscal 
year. Not quite all of that got out of the door, that is true, but 
there is always some that doesn't get out of the door by the end of the 
fiscal year.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  Mr. Manager CROW. Mr. Chief Justice, Members of the Senate, thank you 
for that question.
  As we go further and further down this rabbit hole, I think we need 
to make it very clear that, you know, of the 17 witnesses that the 
House interviewed, nobody had an explanation. Yet again, like last 
night, Mr. Philbin seems to know more than anybody else in the 
government, more than anyone in the Department of Defense, more than 
anybody in the Department of State, more than anybody in OMB who had 
come forward with information about how exactly this happened.
  But, again, here are the facts. OMB interviewed about an interagency 
process that they supposedly said was going on long after the 
interagency process had already ended. In fact, as OMB was doing those 
footnotes that we talked about last week--those footnotes that had 
never been done before, that Mr. Sandy said he had never seen in his 12 
years of time working this process--as that was going on, DOD was 
asking the question about why we are doing this. They had no idea.
  Then when the release was finally getting ready to be finally 
lifted--the hold, rather--OMB emailed DOD, saying: Listen, as we have 
been saying all along, under the Impoundment Control Act, there are no 
problems here, and if there is a problem, it is your fault. To which 
DOD replied back, as you may recall: You have got to be kidding me. 
``I'm speechless.'' Because they did not know. Nobody had told them 
anything. None of the other 17 witnesses knew about it.
  So I do want to address, before I finish one other point, this idea 
that the delay didn't matter. Listen, it doesn't matter if it was a 4-
day delay, a 40-day delay, or a 400-day delay; every delay in combat 
matters. Every delay in combat matters.
  And I will say--they talked about delays in the past. Well, in past 
years, there was about 3 to 6 percent of the funds unobligated because 
of unforeseen and legitimate reasons following the policy process. In 
2019, 14 percent of the funds went unobligated for foreseeable and 
avoidable reasons--because the President could have held them. And to 
this day, $16 million is unspent.
  The CHIEF JUSTICE. Thank you, Mr. Manager. Your time has expired.
  The Senator from Wyoming.
  Mr. BARRASSO. Mr. Chief Justice, I send a question to the desk on 
behalf of myself and Senators Risch, Young, Fischer, Blunt, and Capito.
  The CHIEF JUSTICE. Thank you. The question from Senator Barrasso and 
the other Senators is for the counsel to the President:



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

  
  On page S716, January 30, 2020, third column, the following 
appears: And I will say--they talked about delays in the past. 
Well, in past years, there was about 3 to 6 percent of the funds 
unobligated because of unforeseen and legitimate reasons following 
the policy process. In 2019, 14 percent of the funds went 
unobligated for foreseeable and avoidable reasons--because the 
President-- The CHIEF JUSTICE. Thank you. Mr. Manager CROW.--could 
have held them. And to this day, $16 million is unspent. The CHIEF 
JUSTICE. Thank you, Mr. Manager. Your time has expired. The 
Senator from Wyoming. Mr. BARRASSO. Mr. Chief Justice, I send a 
question to the desk on behalf of myself and Senators RISCH, 
YOUNG, FISCHER, BLUNT, and CAPITO. The CHIEF JUSTICE. The question 
from Senator BARRASSO and the other Senators is for the counsel to 
the President:
  
  The online Record has been corrected to read: And I will say--
they talked about delays in the past. Well, in past years, there 
was about 3 to 6 percent of the funds unobligated because of 
unforeseen and legitimate reasons following the policy process. In 
2019, 14 percent of the funds went unobligated for foreseeable and 
avoidable reasons--because the President could have held them. And 
to this day, $16 million is unspent. The CHIEF JUSTICE. Thank you, 
Mr. Manager. Your time has expired. The Senator from Wyoming. Mr. 
BARRASSO. Mr. Chief Justice, I send a question to the desk on 
behalf of myself and Senators RISCH, YOUNG, FISCHER, BLUNT, and 
CAPITO. The CHIEF JUSTICE. Thank you. The question from Senator 
BARRASSO and the other Senators is for the counsel to the 
President:


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


       Is it within a U.S. President's authority to personally 
     address the issue of corruption with a head of a foreign 
     government when he believes the established U.S. process has 
     been unsuccessful in the past?

  Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for that 
question.
  The short answer is yes. The President is, under article II, vested 
with the entirety of the executive power, and it has been made clear 
since the founding, since the early part of the 1800s, in decisions by 
the Supreme Court, that the President is the sole organ of the Nation 
in foreign affairs. He is vested with the authority to speak on behalf 
of the Nation. As the Supreme Court has described it, he is to be the 
sole voice of the Nation in foreign affairs. And that is why that 
authority was assigned in the Constitution to the Executive.
  Alexander Hamilton explained in the Federalist Papers that the 
Executive is characterized by unity and dispatch, the ability to have 
one view, to act quickly, and also the ability to maintain secrecy, and 
therefore it is the Executive that is uniquely suited and uniquely has 
the ability to carry out the responsibilities of engaging with foreign 
nations and carrying out diplomacy.
  So when the President believes that there is an issue of interest to 
the United States, including corruption in another country, and there 
hasn't been the sort of progress that he would want to see in dealing 
with that issue in the foreign country--perhaps interactions

[[Page S717]]

with prior administrations, prior officials of prior administrations 
that don't look great from an anti-corruption perspective--it is 
entirely within the President's prerogative and his province to raise 
those issues with a foreign leader, to point out where he believes 
there needs to be something done in the interest of the United States. 
If there is an issue related to corruption or whether it is something 
else--an issue related to economic matters, trade matters, antitrust 
matters, cross-border trade--those are all things the President can 
raise with a foreign leader.
  Corruption is not taken off the table. And it is also not taken off 
the table if it is an issue that happens to involve an official from a 
prior administration, whether that official is not or may have recently 
decided to run for another office. If it relates to the national 
interest of the United States, he has legitimate reason for raising it, 
and it is within his authority as the Chief Executive.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from Massachusetts.
  Ms. WARREN. Mr. Chief Justice, I send a question to the desk.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Warren is for the House managers:

       At a time when large majorities of Americans have lost 
     faith in government, does the fact that the Chief Justice is 
     presiding over an impeachment trial in which Republican 
     senators have thus far refused to allow witnesses or evidence 
     contribute to the loss of legitimacy of the Chief Justice, 
     the Supreme Court, and the Constitution?

  Mr. Manager SCHIFF. Senator, I would not say it contributes to a loss 
of confidence in the Chief Justice. I think the Chief Justice has 
presided admirably.
  But I will say this: I was having a conversation the other day on the 
House floor with one of my colleagues,   Tom Malinowski, from Jersey--a 
brilliant colleague--and I was harkening back to what I thought was a 
key exchange during the course of this saga.
  This is when Ambassador Volker, in September, is talking with Andriy 
Yermak. Volker is making the case that the new President of Ukraine 
should not do a political investigation and prosecution of the former 
President of Ukraine, Poroshenko. He is making the case we often make 
when we travel around the country and meet with other Parliamentarians 
about not engaging in political investigations. And when he makes that 
remark, Yermak throws it right back in his face and says: Oh, you mean 
like the investigation you want us to do with the Clintons and the 
Bidens?
  I was lamenting this to my colleague. What is our answer to that? 
What is the answer to that from a country that prides itself on 
adherence to the rule of law? How do we answer that? And his response, 
I thought, was very interesting. He said: This proceeding is our 
answer. This proceeding is our answer.
  Yes, we are a more than fallible democracy and we don't always live 
up to our ideals, but when we have a President who demonstrates 
corruption of his office, who sacrifices the national interest for his 
personal interests, unlike other countries, there is a remedy. So, yes, 
we don't always live up to our ideals, but this trial is part of our 
constitutional heritage, that we were given the power to impeach the 
President.
  I don't think a trial without witnesses reflects adversely on the 
Chief Justice. I do think it reflects adversely on us. I do think it 
diminishes the power of this example to the rest of the world if we 
cannot have a fair trial in the face of this kind of Presidential 
misconduct. This is the remedy. This is the remedy for Presidential 
abuse. But it does not reflect well on any of us if we are afraid of 
what the evidence holds.
  This will be the first trial in America where the defendant says at 
the beginning of the trial: If the prosecution case is so good, why 
don't they prove it without any witnesses? That is not a model we can 
hold up in pride to the rest of the world.
  Yes, Senator, I think that will feed cynicism about this institution, 
that we may disagree on the President's conduct or not, but we can't 
even get a fair trial. We can't even get a fair shake for the American 
people. Oh my God, we can't hear what John Bolton has to say.
  God forbid we should hear what a relevant witness has to say. Hear no 
evil. That cannot reflect well on any of us. It is certainly no cause 
for celebration or vindication or anything like it.
  My colleague says that I am a Puritan who speaks in dulcitones. I 
think that is the nicest thing he has ever said about me. I wouldn't 
describe myself as a Puritan, but, yes, I do believe in right and 
wrong, and I think right matters. I think a fair trial matters, and I 
think that the country deserves a fair trial.
  Yes, Senator, if they don't get that fair trial, it will just further 
a cynicism that is corrosive to this institution and to our democracy.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The Senator from Alabama.
  Mr. SHELBY. Mr. Chief Justice, I send a question to the desk.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Shelby is for the counsel for the 
President:

       Though not charged in the Articles of Impeachment, House 
     Managers and others have stated the President's actions 
     constituted criminal bribery. Can this claim be reconciled 
     with the Supreme Court's unanimous decision in McDonnell v. 
     United States?

  Mr. Counsel PHILBIN. Mr. Chief Justice, Senator, thank you for that 
question.
  I think the answer is, no, it can't be reconciled with the McDonnell 
case. Let me make a couple of points in my answer.
  The first is, of course, because there is no bribery or extortion 
charge in the Articles of Impeachment, the managers can't rely on that 
now to try to establish their case.
  I pointed out yesterday, I believe, that that is a due process 
violation of the most fundamental sort to have a charging document and 
leave out certain charges in the charging document, then come to trial 
and say: Well, it is not in the indictment, and it is not in the 
charge, but, actually, what we have shown you is he did something else 
wrong. It was ``this crime.'' As the House managers well know, that 
would result in an automatic mistrial in any actual trial in a court in 
this country. So that is the initial problem with trying to go there on 
bribery or something else.
  Then, as the Senator's question raises, the McDonnell case made 
clear, that simply arranging a meeting for someone--simply setting up a 
meeting with other government officials--couldn't be treated as a thing 
of value in an exchange under the bribery statute. It pointed out, 
particularly in terms of government officials who all the time are 
asked by their constituents to introduce them to someone else in the 
government, to arrange a meeting, that that is not an official act. It 
is not an official policy decision, an action that is determining some 
government policy. It is simply allowing someone to have a meeting and 
then talk about something. If that is the nature of the meeting, that 
can't be the thing of value that is being exchanged and can't support a 
charge of bribery.
  So they can't raise it because it is not in the Articles of 
Impeachment. If they had wanted to charge that, they had to charge it 
in the Articles of Impeachment. They can't come here now and try to try 
a different case from the one they framed in the charging document that 
they had complete control over drafting. Even if they did, they can't 
make out the claim with respect to the White House meeting because the 
McDonnell case prohibits that.
  I would like to make one other point because the House managers today 
have brought up a lot. There have been a lot of questions again and 
again about the subpoena power and were their subpoenas actually valid 
and how it is going to destroy oversight if the President's arguments 
are accepted. I just want to point something out.
  The subpoenas that were issued--that were purported to have been 
issued--were not under oversight authority but pursuant to--every 
letter that came out said: pursuant to the House's impeachment inquiry. 
They purported to be exercising the authority of impeachment, and that 
makes a difference.
  One of the House managers mentioned that the legislative oversight--

[[Page S718]]

the authority to acquire the information for legislative purposes--has 
to actually relate to something that legislation could be passed on. 
There are certain constraints on what information can be sought. It is 
slightly different if you are going under the impeachment power because 
then you can investigate into specific past facts more readily because 
that is relevant to an impeachment inquiry that might not be for 
legislative purposes. They purported to be using the impeachment 
authority. They didn't have that authorization because the Speaker's 
press conference did not validly give them that authorization. We 
pointed out that the subpoenas were invalid. They did nothing to try to 
cure that deficiency. They didn't reissue the subpoenas. They didn't 
have the votes to reissue them or anything.
  To say now that all oversight will be destroyed forever if you accept 
the President's arguments is totally false. It is totally misleading 
because they were not purporting to do just regular oversight. As we 
pointed out several times in the October 8 letter that the White House 
Counsel sent to Chairman Schiff and others, it said, specifically, if 
you want to return to regular oversight, we are happy to do that. As we 
have in the past, subject to constitutional constraints, we will 
participate in the accommodation process. It was the House Democrats 
who didn't want to take that route. They insist on using the 
impeachment authority. We pointed out that they didn't have it, and 
they didn't seek to cure that problem.
  Accepting the President's position here has nothing to do with 
destroying oversight by Congress for all time and all circumstances. It 
has to do with the mistake that they made in trying to assert a 
particular authority that they didn't have in this case.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from Virginia.
  Mr. WARNER. Mr. Chief Justice, on behalf of myself, Senator Bennet, 
Senator Blumenthal, and Senator Heinrich, I have a question to send to 
the desk for the House managers.
  The CHIEF JUSTICE. Thank you.
  The question from Senators Warner, Bennet, Blumenthal, and Heinrich 
is for the House managers:

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

  This is for the House managers.
  Mr. Manager SCHIFF. Senators and the Mr. Chief Justice, that is the 
natural conclusion of what the President's lawyers are arguing.
  Essentially, if the President believes that it would serve his 
reelection interest to seek the help of a foreign intelligence service 
to provide dirt on his opponent or in other ways assist his campaign, 
as long as he thinks his winning is in the national interest, then that 
is OK.
  It is not OK, but no restraint can be placed upon him. Even if he 
were to go so far as to proclaim a quid pro quo--hey, Russia, you have 
got among the best intelligence services on the planet. If you will 
engage those intelligence services on my behalf, I will refuse to 
enforce sanctions on you over your invasion of Ukraine. That may injure 
the security of our country, but, look, I think my reelection is more 
important--that is where this bastardization of the Constitution leads 
us--to the idea that no abuse of power is within reach of the Congress.
  Now I want to take this opportunity to respond to a couple of other 
quick points if I can.
  First, counsel neglects the fact that, when we issued those 
subpoenas, we stated in the letters accompanying their issuances that 
they were being issued consistent with both the impeachment inquiry and 
our oversight authority. They neglected to tell you the latter part--
that we explicitly made reference to our oversight capacity as 
legislators.
  Finally, on the issue of bribery, in the Nixon impeachment, there was 
an umbrella Article of Impeachment that listed a series of specific 
acts. Some of those acts involved criminal activity, and some involved 
just unethical activity. If you were to accept counsel's argument, you 
would have said that the articles that passed out of the House 
Judiciary Committee in Nixon were likewise infirm because, if they were 
going to charge the President with engaging in a criminal act, they 
needed to make a separate article of it. Otherwise, how dare they? It 
would be a violation of due process, and it would be thrown out of any 
court--prosecutorial misconduct and the like.
  OK. That is nonsense. On the one hand, they want to argue there is no 
conduct here that is even akin to a crime, when, under McDonnell, in 
fact, this would constitute bribery. Withholding a White House meeting 
and withholding the provision of hundreds of millions of dollars in aid 
under the precedent of McDonnell would be bribery, but there is no 
doubt it is akin to bribery. They would say, unless you charge that--in 
the Nixon case, they had 15 articles on each particular act, criminal 
and noncriminal--then you could not make out a viable charge. That has 
never been a constitutional principle. Just as they would have had the 
House organize its impeachment investigation along the terms they 
dictate, they now want to dictate how we can charge an offense.
  At the end of the day, the task is to determine whether the conduct 
that is charged has been committed and whether that abuse of power 
rises to the level warranting impeachment. This is a technical legal 
argument that, no, you have to charge it as we would like you to charge 
it, and you can't make reference to the fact that, yes, these acts also 
constitute bribery and that that is somehow offensive to legal or 
constitutional principles. It is not. Yes, we could have charged 
bribery. We could have had two separate counts. That is not a 
constitutional requirement. Had we done that, as I said last night, 
they would have attacked that, saying you are taking one offense and 
making it into two.
  That does not detract from the fact that the President's conduct 
violated our bribery laws, particularly as they were understood by the 
Framers, not as they were understood 200 years later. They violated 
what the Framers understood from British common law to constitute 
extortion. They violated the modern-day Impoundment Control Act. They 
violated the Whistleblower Protection Act. They violated multiple laws, 
but that is not even necessary.
  What is necessary is that they abused their power. Counsel says: 
Well, claims are made of abuse of power all the time. Yes, that is true 
in political rhetoric, but these circumstances warranted impeachment. 
The President was not impeached over climate change or any of the other 
enumerable examples they gave of people rhetorically saying the 
President is abusing his office. That is not what brought us here. What 
brought us here was the President decided that he could withhold 
military aid to an ally at war to get help in his reelection.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The Senator from Oklahoma.
  Mr. INHOFE. Mr. Chief Justice, I have a question for the President's 
counsel, and I am being joined by Senators Rounds and Young.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Inhofe, joined by Senators Rounds and 
Young, is for counsel to the President:

       Even if additional witnesses are called, do you ever 
     envision the House Managers agreeing there has been a fair 
     Senate trial if it ends in the President's acquittal?

  Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the Senate, the 
answer is no.
  Now, they will not agree that it is fair because what will happen is, 
if there is a discussion of witnesses and if we go to witnesses, Mr. 
Schumer has laid out the four he wants, and he tells me we could have 
anybody we want. The reality is that also includes documents, and that 
includes other witnesses that it may lead to. So, at some point, this 
body will say--because this cannot go on forever, and we will be at the 
election--this has to come to an end, and they will say: Aha, it has 
been brought to an end as we were about to get the key evidence.

[[Page S719]]

  But what is so interesting here is they had 17 witnesses--that they 
had. When the hearing took place before the Judiciary Committee, if I 
am not mistaken, Manager Nadler, you had four witnesses at one point, 
when you had the law professors, and there were three law professors 
from the Democratic side and there was one from the Republican side. So 
if we are going to take that same four-to-one analysis, for every one 
of their witnesses, we should get four.
  But there was a question earlier asked about the truth of the 
poisonous tree. The taint of the poison does not age well. The longer 
it goes does not make that poison go away. It gets deeper and deeper 
into the soil, and here, the soil we are talking about is a trial that 
would be not only ongoing, but they put up 17 witnesses. You have heard 
them. They are acting like there have been no witnesses presented here. 
They presented the testimony of 17. They may not have liked that we 
were able to respond to those 17 by playing those witnesses' words. By 
the way, those witnesses--the testimony of those witnesses--were never 
done with cross-examination by the counsel for the President.
  So does this end? Will it ever be enough? No, it will only be enough 
if they got a conviction because that is what it is about, because 
let's not forget for a moment that this has been going on, in one stage 
or another, for 3\1/2\, 3 years now.
  My concern is there is not a--where is the end point in that? So 
their end point is: Well, just give us John Bolton, and then, you know, 
you don't get anybody or then, you know, you get one and we get one, 
and then that one may lead to somebody else. It is not the way it 
works.
  So they have said ``overwhelming,'' ``proved,'' 63 times--63 times. 
And as we are 3 hours away from answering the end of the question 
section, we are about to go into--I mean, it sounds like we have been 
arguing about witnesses for the last couple hours, but that starts 
tomorrow.
  But do I think that there will be--is it our position that there will 
be--a recognition that there is due process that has been reached and 
we have reached a happy accord? No, I do not believe that.
  I also don't believe that what can be cured here. I don't think what 
they did can be cured here by anything you were to do as far as 
witnesses or anything else. That process was so tainted, and I thought 
Mr. Philbin did a very effective job of explaining--painstakingly, now, 
and multiple times, I know--the issue of those subpoenas. And I thought 
the perfect analysis was when one of the managers said: Well, when 
people file freedom of information requests, they get answers. And Mr. 
Philbin said: That is because they followed the law; they followed the 
rules. That is not what happened here.
  Thank you, Mr. Chief Justice.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from Delaware.
  Mr. CARPER. Mr. Chief Justice, on behalf of our colleagues Senators 
Booker, Cardin, Kaine, Markey, Menendez, Merkley, Murphy, and Shaheen, 
I send a question to the desk for the House managers.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Carper and the other Senators addressed to 
the House managers:

       The President's aides and defenders have claimed that it is 
     ``normal'' or ``usual'' to use U.S. foreign assistance as the 
     President did to achieve a desired outcome. How was the 
     President's act in withholding U.S. security assistance to 
     Ukraine different from how the U.S. uses foreign assistance 
     to achieve foreign policy goals and national security 
     objectives, and how should we evaluate the defense argument 
     that this is what is ``done all the time''?

  Mr. Manager CROW. Mr. Chief Justice, Senators, thank you for the 
question.
  So to understand the answer to this, you don't have to look inside 
the President's mind. You just have to look at recent history and then 
what was done last year.
  As I talked about earlier, and even yesterday, other Presidents have 
held holds in aid for legitimate reasons, even this President. We 
concede that. But there are a variety of legitimate policy reasons for 
holding aid, whether it be corruption or burden-sharing.
  See, even in the President's other holds--like Afghanistan, because 
of concerns about terrorism, or Central America, because of immigration 
concerns--even though some might disagree with that, that is a 
legitimate policy debate.
  The difference here is that every witness testified--these 17 
witnesses that you hear about testified--that there was no reason 
provided for the implementation of this hold. Right?
  I talked about earlier how there is a process for doing this. Right? 
There is a well-prescribed process for allocating the funds, like we 
all did here in this Chamber and 87 of you agreed on it, and then an 
interagency process to review it to make sure that it meets the 
standards and criteria outlined by this body, anticorruption reforms. 
And that was done in this case. That interagency process was followed. 
That certification was made. The notification to Congress was 
conducted. The train had left the station, just like the train had left 
the station in 2018, in 2017, in 2016. And every element of the 
agencies and the bureaucracy involved in that process in prior years 
had been engaged and had signed off, except this year.
  In 2019, rather, that all changed. A hold was implemented for no 
known reason. There was no notification given to Congress, which 
violated the Impoundment Control Act. DOD, Department of State, 
Secretary Esper, Secretary Pompeo, even Vice President Pence, and the 
entire National Security Council implored the President to release the 
aid because it not only had met all of the certifications but it was in 
the U.S. national interest and consistent with U.S. policy.
  And yet, nobody knew why it happened, and, to this day, the 
individual who could shed light on this, Mr. Bolton, is 
being prohibited from coming forward to explain why the President told 
him it happened.

  So, yes, it is still a good time to subpoena Ambassador Bolton and 
get that information.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The Senator from North Carolina.
  Mr. BURR. Mr. Chief Justice, I have a question for both sets of 
counsel, sponsored by myself, Senator Cruz, Senator Scott of South 
Carolina, Hawley, Sasse, and Rubio.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Burr and the other Senators is for both 
parties. The House will answer first:

       Hillary Clinton's campaign and the Democratic National 
     Committee hired a retired foreign spy to work with Russian 
     contacts to build a dossier of opposition research against 
     her political opponent, Donald Trump. Under the House 
     Manager's standard, would the Steele dossier be considered as 
     foreign interference in a US election, a violation of the 
     law, and/or an impeachable offense?

  Mr. Manager Jeffries. Thank you, Mr. Chief Justice and distinguished 
Senators. I thank you for the question.
  The analogy is not applicable to the present situation because, 
first, to the extent that opposition research was obtained, it was 
opposition research that was purchased.
  But this speaks to the underlying issue of the avoidance of facts--
the avoidance of the reality of what President Trump did in this 
particular circumstance.
  Now, I have tremendous respect for the President's counsel, but one 
of the arguments that we consistently hear on the floor of this Senate, 
this great institution in America's democracy, is conspiracy theory 
after conspiracy theory after conspiracy theory.
  We have heard about the deep-state conspiracy theory. We have heard 
about the ``Adam Schiff is the root of all evil'' conspiracy theory. We 
have heard about the Burisma conspiracy theory. We have heard about the 
CrowdStrike conspiracy theory. We have heard about the whistleblower 
conspiracy theory. It is hard to keep count.
  This is the Senate. This is America's most exclusive political club. 
This is the world's greatest deliberative body, and all you offer us is 
conspiracy theories because you can't address the facts in this case, 
that the President corruptly abused his power to target an American 
citizen for political and personal gain. He tried to cheat in the 
election by soliciting foreign interference. That is an impeachable 
offense. That is a crime against the Constitution. That is the reason 
that we are here. That is what is before this great body of 
distinguished Senators.

[[Page S720]]

  The CHIEF JUSTICE. Thank you, Mr. Manager.
  Mr. SEKULOW. Mr. Chief Justice, Members of the Senate, so, I guess 
you can buy--that is what it sounds like; you can buy a foreign 
interference. If you purchase it, if you purchase their opposition 
research, I guess that is OK.
  So let me try to debunk the conspiracy, Manager Jeffries; and that 
is, it is not conspiracy that Christopher Steele was engaged to obtain 
and prepare a dossier on the Presidential candidate for the Republican 
Party, Donald Trump. It is not a conspiracy that Christopher Steele 
utilized his network of assets--including assets, apparently, in 
Russia--to draft the dossier. It is not a conspiracy that the dossier 
was shared with the Department of Justice through Bruce Ohr, who was 
the No. 4 ranking member of the Department of Justice at that time, 
because his wife, Nellie Ohr, happened to be working for the 
organization, Fusion GPS, that was putting the dossier together. This 
is also not a conspiracy. It sounds like one, except it is real. And it 
is also not a conspiracy that that dossier--purchased dossier--was 
taken by the FBI, submitted to the Foreign Intelligence Surveillance 
Court to obtain a foreign intelligence surveillance order on an 
American citizen. It is also not a conspiracy that that court issued an 
order--two of them now--condemning the FBI's practice and acknowledging 
that many of those orders were not properly issued. None of that is a 
conspiracy theory. That is just the facts.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from Wisconsin.
  Ms. BALDWIN. Mr. Chief Justice, I send a question to the desk for 
both President's counsel and House managers.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Baldwin is for both parties, and counsel 
for the President will answer first:

       Can you assure us that the Jennifer Williams document 
     submitted to the House was not classified SECRET for any 
     reasons prohibited by Executive Order 13526, such as 
     preventing embarrassment to a person? If yes, please describe 
     or identify the serious damage to national security that 
     would be caused by declassifying this document, pursuant to 
     the same Executive Order.

  Mr. Counsel PHILBIN. Mr. Chief Justice and Senator, in response to 
your question, the Trump administration's policy is always to abide by 
the requirements for classification of material, and the 
classification--my understanding is that that document is derivatively 
classified because it refers to another document, a transcript that was 
originally classified. I can't represent to you a specific reason that 
the classification officer classified that document, but I can tell you 
that it was originally classified according to proper procedures. It is 
a properly classified document, and that is the policy of the 
administration, to follow the classification procedures.

  The memorandum that she submitted is derivatively classified because 
of that transcript. Now, that transcript relates to a conversation with 
a foreign head of state. Almost all conversations with foreign heads of 
state are classified. They are classified because the confidentiality 
relates to those communications. It is important for ensuring that 
there can be candid conversations with foreign heads of state.
  The President took an extraordinary action in declassifying two of 
his conversations with foreign heads of state--unprecedented--because 
he carefully weighed the balance of what was at stake in this case and 
the need for transparency to the American public in those two 
conversations. But that was an exception to the usual rule that such 
conversations are properly classified.
  The CHIEF JUSTICE. Thank you, counsel.
  Mr. Manager SCHIFF. Senators, I would encourage you, if you haven't 
already had the opportunity, to read that document for yourself and ask 
whether you think there is any legitimate basis to classify that 
supplemental testimony.
  Now, the Vice President has said that he had no knowledge of this 
scheme. He has denied any knowledge, involvement in any way, shape, or 
form.
  We heard the testimony of Ambassador Sondland that Ambassador 
Sondland raised to the Vice President that the aid was being held up 
and was tied to these investigations, and the Vice President didn't 
say: What are you talking about? That could never be. The President 
would never allow such a thing.
  There was nothing but a silent nod of acknowledgment of what he was 
being told. But, nonetheless, the Vice President says that he knew 
nothing, and the Vice President points to the open testimony of 
Jennifer Williams to support that contention. But the classified 
submission goes to that phone call between the Vice President and 
President Zelensky. You should read that and ask yourself whether that 
submission is being classified because it would either embarrass or 
undermine what the President and the Vice President are saying or there 
is some legitimate reason.
  Now, the Vice President at one point said that he wanted to release 
the record of his call. He certainly talked all about this issue, as 
has the President. If it was so classified, then why are they all 
talking about it? But we are to be assured that this classification 
decision was made absolutely above board. I am sure that John Bolton's 
manuscript will be treated with the same rigid, objective scrutiny.
  You read that. Don't take my word for it. You read that, and you ask 
yourselves, is there anything that--other than avoiding evidence that 
the administration doesn't want you to see--that the public shouldn't 
see in Jennifer Williams' supplemental testimony? I don't think you can 
conclude that it is, except that it would be inconsistent with what you 
are being told and what the American people are being told. Well, they 
deserve the whole truth, and that is part of the truth. So let the 
public see it.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The Senator from Tennessee.
  Mr. ALEXANDER. Thank you, Mr. Chief Justice. I send a question to the 
desk on behalf of myself, Senator Daines, and Senator Cruz.
  The CHIEF JUSTICE. Thank you.
  The question from Senators Alexander, Daines, and Cruz is for the 
House managers:

       Compare the bipartisanship in the Nixon, Clinton, and Trump 
     impeachment proceedings. Specifically, how bipartisan was the 
     vote in the House of Representatives to authorize and direct 
     the House committees to begin formal impeachment inquiries 
     for each of the three Presidents?

  Ms. Manager LOFGREN. Mr. Chief Justice and Senators, in the Nixon 
impeachment, you look back and think about the vote in the House 
Judiciary Committee. It ended up bipartisan, but it didn't start that 
way. The parties were dug in, as parties are today. The Republicans and 
Democrats saw it differently. But as the evidence emerged, a bipartisan 
consensus emerged on the committee, and a number of Republicans--Tom 
Railsback, who just passed away, and Caldwell Butler, who loved Richard 
Nixon--he was a huge fan of Richard Nixon's. But they couldn't turn 
away from the evidence that their President had committed abuse of 
power, cheated the election, and they had to vote to impeach him.
  When it came to the Clinton impeachment, that was--again, it started 
out along very partisan lines, and it ended along partisan lines. I 
believe the reason why, as I said a short while earlier, was that we 
never had a high crime and misdemeanor. That was the problem.
  With Nixon, we had clear abuse of Presidential authority to upend the 
Constitution, scheme to cheat in an election, and Members of both 
parties voted to impeach. With Clinton, we had private misconduct. Yes, 
I would call it a crime because he lied about that under oath, but it 
wasn't misuse of Presidential authority. As I said, any husband caught 
in an affair could have lied about it. And it didn't involve the use of 
Presidential authority. So we never got beyond our partisan divisions 
on that. And many of us--and I will include myself--believed that it 
was being done for a partisan purpose, because it didn't reach a high 
crime and misdemeanor.
  In the Trump case--and I will say I have been disappointed, because I 
serve with a number of Republicans in the House whom I like, whom I 
respect, whom I work with on legislation, and I honestly believed that 
when this evidence came out, as with the Nixon administration, we would 
have a coming

[[Page S721]]

 together. But it didn't happen, much to my disappointment.

  I think you have a new opportunity here in the Senate. For one thing, 
this is a smaller body. You are, as has been mentioned, the greatest 
deliberative body on the planet. You have an opportunity to do 
something that we didn't have a chance to do, which is to call 
firsthand witnesses and hear from them.
  A lot of things have happened since the impeachment articles were 
adopted. One of them was emails that have been released that we didn't 
know about.
  It has been said by counsel that the Freedom of Information Act 
information shows that if you follow the process, you get information. 
No, they had to sue, and they are still in a lockdown fight over the 
Freedom of Information Act and redactions that were not proper. So that 
is a big fight that is still going on, but we got information.
  But most tellingly, Mr. Bolton has now stepped forward and said he is 
willing to testify. He is willing to come here and testify under oath. 
And I think we can all learn something. As Mr. Schiff has mentioned, I 
think we can structure this in such a way that it would respect the 
Senate's need to do other business, which we also do in the House.
  Let's get that done, and let's see if that kind of information can 
help the Senators come together, as happened in the House Judiciary 
Committee so many years ago when we dealt with the serious problem of 
Presidential misconduct--abuse of power to cheat an election--when 
Richard Nixon shocked the Nation and ultimately had to resign.
  The CHIEF JUSTICE. Thank you, Ms. Manager.
  Mr. SCHUMER. Mr. Chief Justice.
  The CHIEF JUSTICE. The Democratic leader is recognized.
  Mr. SCHUMER. I send a question to the desk for the House managers.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Schumer for the House managers:

       Many of our colleagues are worried that if we were able to 
     bring witnesses and documents in the trial it would take too 
     long. Mr. Schiff mentioned we could do depositions in one 
     week. Please elaborate. What can you say that will reassure 
     us that having witnesses and documents can be done in a short 
     time, minimally impeding the business of the Senate?

  Mr. Manager SCHIFF. I thank the Senator for the question.
  First of all, with respect to the documents that we subpoenaed and 
sought to get in the House, those documents have been collected. So 
that work has been done. We have been informed, for example, that the 
State Department documents have been collected. Those can readily be 
provided to the Senate for its consideration.
  With respect to witnesses, if we agree to a 1-week period to do 
depositions while you continue to conduct the business of the Senate, 
it doesn't mean that we would have unlimited witnesses during that 
week. We would have to decide on witnesses who are relevant and 
probative of the issues. Neither side would have an unlimited capacity 
to call endless witnesses. We would have a limited period of time, just 
as we had a limited period of time for our opening presentations and 
for this question and answer period.
  If there is any dispute over whether a witness is truly material or 
probative, that decision can be made by the Chief Justice in very short 
order. If there is a dispute as to whether a passage in a document is 
covered by an applicable privilege and if, for the first time, the 
White House would actually invoke a privilege, the Chief Justice can 
decide, is that properly made or is that merely an attempt to conceal 
crime or fraud?
  So this can be done very quickly. This can be done, I think, 
effectively. We have never sought to depose every witness under the 
face of the Sun. We have specified four in particular, who we think are 
particularly appropriate and relevant here. But we should be able to 
reach an agreement on concluding that process within a week. So that is 
how we would contemplate it being done.
  We would make that proposal to our opposing counsel. It would be 
respectful of your time. It would, I think, be a reasonable 
accommodation. And counsel says that the Constitution mandates a 
reasonable accommodation. Well, let's have a reasonable accommodation 
here, and the reasonable accommodation could be to take 1 week to 
continue with the business of the Senate. We will do the depositions, 
and then we will come back, and we will present to you what the 
witnesses had to say in those depositions. That is how we contemplate 
the process would work.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The majority leader is recognized.
  Mr. McCONNELL. Mr. Chief Justice, I am about to send a question to 
the desk, but I am going to suggest that following the response to my 
question and one more Democratic question, we take a 45-minute break 
for dinner.
  So I send a question to the desk.
  The CHIEF JUSTICE. I am sure there is no objection.
  The question from the majority leader is for the counsel to the 
President:

       Would you please respond to the question on bipartisanship 
     by Senator Alexander and any assertions the House managers 
     made in response to any of the previous questions?



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

  
  On page S721, January 30, 2020, second column, the following 
appears: The question from the majority leader is for the counsel 
to the President: Would you please respond to the question on 
bipartisanship by Senator ALEXANDER and any assertions the House 
managers made in response to any previous questions?
  
  The online Record has been corrected to read: The question from 
the majority leader is for the counsel to the President: Would you 
please respond to the question on bipartisanship by Senator 
ALEXANDER and any assertions the House managers made in response 
to any of the previous questions?


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


  Mr. Counsel PHILBIN. Mr. Chief Justice, majority leader, thank you 
for that question.
  In response to Senator Alexander, your question, in the Nixon case, 
the authorizing resolution--this is in the House to authorize the 
inquiry--was passed by a vote of 410 to 4. Four hundred and ten voted 
in favor of the inquiry; only four voted against. Two hundred and 
thirty-two Democrats, 177 Republicans, and 1 Independent voted in 
favor.
  In the Clinton authorizing resolution--this was H. Res. 581--they 
authorized just the beginning of the inquiry. It passed by a vote of 
258 to 176 Now, 31 Democrats joined 227 Republicans voting in favor of 
authorizing that inquiry. That was substantial bipartisan support to 
authorize the inquiry.

  In this case, H. Res. 660, which was passed on October 31, had 
bipartisan opposition. The votes in favor of the resolution were 231 
Democrats and 1 Independent. The opposition was all Republicans, 194, 
plus 2 Democrats voting against.
  In terms of other assertions that have been made, there are just a 
couple of points I wanted to touch on. There has been a lot said 
about--House managers have suggested that counsel for the President 
have argued that the President could do anything he wants now--solicit 
any foreign interference in any election. If he thinks it will help him 
get elected, that is OK, and that is the theory of the case. That is 
absolutely false. That is a gross distortion of what has been 
presented, and let me make a couple of points about that.
  There have been questions about the campaign finance laws, and one 
narrow point that we have made in response to specific questions about 
the campaign finance laws is simply that information--limited 
information--being presented to a party is not a contribution, a thing 
of value under the campaign finance laws. And that is not just my 
conclusion; that is what the Mueller report said. When the Mueller 
report looked into this, it said: ``No judicial decision has treated 
the voluntary provision of uncompensated opposition research or similar 
information as a thing of value that could amount to a contribution 
under campaign-finance law.'' That is volume I, page 187. So that is a 
limited point.
  The bigger point: The suggestion has been made, because of Professor 
Dershowitz's comments, that the theory that the President's counsel is 
advancing is the President can do anything he wants. If he thinks it 
will advance his reelection, any quid pro quo, anything he wants, 
anything goes. That is not true. Professor Dershowitz today issued a 
statement to show that that was an exaggeration of what he was saying.
  But let me make an even more narrow point. Aside from what Professor 
Dershowitz was saying the other night and explaining in abstract and 
hypothetical terms and academic terms, we have a specific case here. 
And the specific case here is the one that has been framed by the House 
managers. And the defects in that case and their theory of the case 
are, there is abuse of power that involves no allegation of a crime 
whatsoever and no allegation of a violation of established law. 
Instead, the theory that you can take action that, on its face, is 
objectively permissible under the powers of the President and determine 
that it is going to be

[[Page S722]]

treated as impeachable and impermissible solely on an inquiry into 
subjective motives--that is what the House Judiciary Committee report 
says. That is a theory that is infinitely malleable. It provides no 
standard--no real standard at all. And that was one core point 
Professor Dershowitz was making, that it is tantamount to impeachment 
for maladministration.
  The other point I will make is they set the standard for themselves 
with respect to investigations. They have to establish, in order to 
establish their bad motive, that there is not a scintilla of evidence--
there is nothing that you can look at that would suggest any possible 
legitimate national interest in inquiring into 2016 election 
interference or the Biden and Burisma affair. They can't possibly meet 
that standard. It is overdetermined that there is a legitimate policy 
interest in at least raising a question about those things.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  Mr. COONS. Mr. Chief Justice.
  The CHIEF JUSTICE. The Senator from Delaware.
  Mr. COONS. On behalf of myself and Senator Klobuchar, I send a 
question to the desk, addressed to the President's counsel and the 
House managers.
  The CHIEF JUSTICE. Thank you. The House will go first in answering 
the question from Senators Coons and Klobuchar:

       Mr. Sekulow said earlier that the President's Counsel would 
     expect to call their own witnesses in this trial if Mr. 
     Bolton or others are called by the House managers. Can you 
     tell the Senate if any of those witnesses would have first-
     hand knowledge of the charges against the President and his 
     actions?

  Mr. Manager SCHIFF. Mr. Justice and Senators, there certainly are 
witnesses that the President could call with firsthand information. I 
don't know that they are--the witnesses that they have described so 
far, their position is, apparently, if you are the chairman of a 
committee doing an investigation, that makes you a relevant witness. It 
doesn't--or you all become witnesses in your own investigations.
  They want to call Joe Biden as a witness. Joe Biden can't tell us why 
military aid was withheld from Ukraine while it was fighting a war. Joe 
Biden can't tell us why President Zelensky couldn't get in the door of 
the White House while the Russian Foreign Minister could. He is not in 
a position to answer those questions. He can't tell us whether this 
rises to an impeachable abuse of power, although he probably has 
opinions on the subject.
  But are there witnesses they could call? Absolutely. They have said 
Mick Mulvaney issued a statement saying: The President never said what 
I had said he had said earlier. Well, if that is the case, then why 
don't they call Mick Mulvaney? He should be on their witness list. If 
Secretary Pompeo has evidence that there was a policy basis to withhold 
the aid and it was discussed, well, then, why don't they call him? That 
is a relevant fact witness.
  They don't want to allow the Chief Justice to decide issues of 
materiality because they know what they are trying to do involves 
witnesses that don't shed light on the charges against the President. 
They do satisfy the appetite of their client, but they don't have 
probative value to the issues here.

  So, yes, there are witnesses. Now, the reason they are not on the 
President's witness list is because if they were truthful under oath, 
they would incriminate the President. Otherwise, they would be begging 
to have Mick Mulvaney come testify; otherwise, they would be begging to 
have the head of OMB, who helped administer the freeze on behalf of the 
President: Let's bring him in. He will tell you it was completely 
innocent. It was all about burden-sharing.
  So why don't they want the head of OMB in? Why don't they want their 
own people in? Because their own people will incriminate the President.
  But there is no shortage of relevant, probative witnesses. They just 
don't want you to hear what they have to say.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  Mr. Counsel SEKULOW. Mr. Chief Justice, so besides the fact that Mr. 
Schumer said--and it is on page 675 of the transcript--that we can call 
any witnesses we want, Mr. Schiff just said we don't really get--we can 
call their witnesses. That is what he said. We can call their witnesses 
because, under their theory, if we wanted to talk to the whistleblower, 
even in a secure setting to find out if he, in fact, may have worked 
for the Vice President or may have worked on Ukraine or may have been 
in communication with the staff, that is irrelevant.
  We can't talk to Joe Biden or Hunter Biden because that is 
irrelevant--except the conversation that is the subject matter of this 
inquiry, the phone call transcript that you selectively utilized, has a 
reference to Hunter Biden. The conversation with Burisma, they raised 
it for about a half a day, saying there was nothing there. Well, let me 
find out through cross-examination.
  But I just think of the irony of this--before we go to dinner--that 
we could call anyone we want, except for witnesses we want, but we can 
call their witnesses that they want.
  Remember we said ``the fruit of the poisonous tree''? It is still the 
fruit of the poisonous tree. It doesn't get better with age, as I said.
  This idea that this is going to be a fair process--call the witnesses 
they want; don't call the witnesses you want because they are 
irrelevant. They may be irrelevant to them. They are not irrelevant to 
the President, and they are not irrelevant to our case. Thank you.
  The CHIEF JUSTICE. Thank you, counsel.


                                 Recess

  The CHIEF JUSTICE. Mr. Majority Leader, I understand we have 45 
minutes?


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

  
  On page S722, January 30, 2020, third column, the following 
appears: The CHIEF JUSTICE. Mr. Majority Leader, I understand we 
have 45 minutes.
  
  The online Record has been corrected to read: The CHIEF JUSTICE. 
Mr. Majority Leader, I understand we have 45 minutes?


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


  Mr. McCONNELL. Mr. Chief Justice, we do indeed.
  There being no objection, at 6:39 p.m., the Senate, sitting as a 
Court of Impeachment, recessed until 7:37 p.m.; whereupon the Senate 
reassembled when called to order by the Chief Justice.
  The CHIEF JUSTICE. Senators, please be seated.
  The Senate will come to order.
  Mr. GRASSLEY. Mr. Chief Justice.
  The CHIEF JUSTICE. The Senator from Iowa.
  Mr. GRASSLEY. I send a question to the desk on behalf of myself, 
Senators McConnell, Hoeven, and Wicker.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Grassley and the other Senators is 
addressed to counsel for the President:

       During President Clinton's impeachment trial, he argued 
     that ``no civil officer--no President, no judge, no cabinet 
     member--has ever been impeached by so narrow a margin . . . 
     [and] that the closeness and partisan division of the vote 
     reflected the constitutionally dubious nature of the charges 
     against him.'' President Trump has raised similar concerns 
     during these proceedings and argues that the lack of 
     bipartisan consensus highlights the partisan nature of the 
     charges. Are the President's concerns well-founded?



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

  
  On page S722, January 30, 2020, third column, the following 
appears: During President Clinton's impeachment trial, he argued 
that ``no civil officer--no President, no judge, no cabinet 
member--has ever been impeached by so narrow a margin . . . [and] 
that the closeness and partisan division of the vote reflected the 
constitutionally dubious nature of the charges'' against him.
  
  The online Record has been corrected to read: During President 
Clinton's impeachment trial, he argued that ``no civil officer--no 
President, no judge, no cabinet member--has ever been impeached by 
so narrow a margin . . . [and] that the closeness and partisan 
division of the vote reflected the constitutionally dubious nature 
of the charges against him.''


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


  Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for that 
question.
  I think the concerns are very well-founded. I think that they are 
concerns that echo back to our founding, when Alexander Hamilton warned 
in Federalist No. 65 precisely against partisan impeachments. A 
partisan impeachment is one of the greatest dangers that the Framers 
saw in the impeachment power. And in Federalist No. 65, Hamilton 
specifically said that impeachments could become ``persecution of an 
intemperate or designing majority in the House of Representatives,'' 
and that is what we have in this case.
  In fact, there was bipartisan opposition to the Articles of 
Impeachment here in the House. So this is one of the--it is the most 
divisive sort of impeachment that could be brought here, and it 
reflects very poorly on the process that was run in the House, which 
had not had bipartisan support, and the charges that were ultimately 
adopted in the House, because it is a purely partisan impeachment.
  And I think that that is important to bear in mind also, that the 
House managers themselves and some of the Members of this Chamber, at 
the time of the Clinton impeachment, warned very eloquently against 
partisan impeachments. They recognized that a partisan impeachment 
would not be valid, that it would do grave damage to our political 
community, to our polity, to the country. It would create deep 
divisions

[[Page S723]]

that would last for years. And in the Clinton impeachment, they made 
those warnings when it was not even arising in the context of an 
election year.
  Now we have a partisan impeachment--as we have pointed out--when 
there is an election only 9 months away, and it will be perceived, and 
is perceived by many in the country, as simply an attempt to interfere 
with the election and to prevent the voters from having their choice of 
who they want to be President for the next 4 years.
  And the House managers have said: We can't allow the voters to decide 
because we can't be sure it will be a fair election. That can't be the 
way we approach democracy in the United States. We have to respect the 
ability of the voters to take in information, because all the 
information is out now. They have had plenty of opportunity, with the 
process that they ran in the House, to make all the information public 
that they want and to be able to make their accusations against the 
President. We think they have been disapproved, and the voters should 
be able to decide.
  And the most important thing, the greatest danger from this partisan 
impeachment, I believe, is the one that Minority Leader Schumer warned 
about back in 1998, which is that, once we start down the road of 
purely partisan impeachments, once we start to normalize that process 
and make it all right to have a purely partisan impeachment, especially 
in an election year, then we have just turned impeachment into a 
partisan political tool, and it will be used again and again and again 
and more frequently and more frequently. And that is not a process--
that is not a future--for the country that this Chamber should accept.
  Instead, this Chamber should put an end to the growing pattern 
towards partisan impeachments in this country, put an end to that 
practice and definitively make clear that a purely partisan impeachment 
not based on adequate charges, not based on charges that meet the 
constitutional standard will not get any consideration in this Chamber 
and will be rejected.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  Mr. VAN HOLLEN. Mr. Chief Justice.
  The CHIEF JUSTICE. The Senator from Maryland.
  Mr. VAN HOLLEN. Mr. Chief Justice, on behalf of myself and Senator 
Klobuchar, I send a question to the desk directed to both parties.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Van Hollen is to both parties. The 
President's counsel will go first:

       In his response to an earlier question this evening, Mr. 
     Sekulow cited individuals like the Bidens as being ``not 
     irrelevant to our case.'' Are you opposed to having the Chief 
     Justice make the initial determinations regarding the 
     relevance of documents and witnesses, particularly as the 
     Senate could disagree with the Chief Justice's ruling by a 
     majority vote?

  The President's counsel is first.
  Mr. Counsel SEKULOW. Mr. Chief Justice, again, to make our position 
clear, we think, constitutionally, that would not be the appropriate 
way to go.
  Again, no disrespect to the Chief Justice at all, who is presiding 
here as the Presiding Officer, but our view is that, if there are 
issues that have to be resolved on constitutional matters, that it 
should be done in the appropriate way.
  You have Senate rules that govern that, as to what you would do, and 
then there is--you know, if litigation were to be necessary for a 
particular issue, that would have to be looked at. But this idea that 
we can short circuit the system, which is what they have been doing for 
3 months, is not something we are willing to go with.
  I have said that. I said it all day yesterday. And, again, no 
disrespect to the Senator's question, but we are just--that is not a 
position that we will accept as far as moving these proceedings 
forward.
  Thank you.
  Mr. Manager SCHIFF. Senators, counsel for the President says that 
would not be constitutionally appropriate. Why not? Where is it 
prohibited in the Constitution that in an impeachment trial, upon the 
agreement of the parties, the Chief Justice cannot resolve issues of 
materiality of the witnesses? Of course that is permitted by the 
Constitution.
  Now, counsel earlier said that the House managers want to decide on 
which witnesses the President should be able to call; we want them to 
call our witnesses. Well, you would think that Mick Mulvaney, the White 
House Chief of Staff, would be their witness. If indeed he supports 
what the President is claiming, if indeed he is willing to say under 
oath what he is willing to say in a press statement, you would think he 
would be their witness.
  But I am not saying that we get to decide. That is not the proposal 
here. The proposal is we take a week; the Senate goes about its 
business; we do depositions. The witnesses are not witnesses on the 
President's behalf that we get a decision on as House managers; but, 
rather, that we entrust the Chief Justice of the United States to make 
a fair and impartial decision as to whether a witness is material or 
not, whether a witness has relevant facts or not, or whether a witness 
is simply being brought before this body for the purposes of 
retribution--in the case of the whistleblower--or to smear the Bidens 
without material purpose relevant to these proceedings.
  We are not asking that you accept our judgment on that. We are 
proposing that the Chief Justice make that decision. And I think the 
reason, of course, that they don't want the Chief Justice to make that 
decision, as I indicated the other night, is not because they don't 
trust the Chief Justice to be fair. It is because they fear the Chief 
Justice will be fair. And I think that tells you everything you need to 
know about the lack of good faith when it comes to the arguments they 
make about why they went to court, why they refused to comply with any 
subpoenas, why they refused to provide any documents, why they are here 
before you saying that the House managers must sue to get witnesses and 
they are in court on the same day saying you can't sue to get 
witnesses.
  This is why they don't want the Chief Justice to make that decision, 
because they know the witnesses they are requesting are for purposes of 
retribution or distraction.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The Senator from North Carolina.
  Mr. TILLIS. Mr. Chief Justice, I send a question to the desk on 
behalf of myself and Senator Cruz.
  The CHIEF JUSTICE. Thank you. The question from Senators Tillis and 
Cruz is for the House managers:

       You have based your case on the proposition that it was 
     utterly ``baseless'' and a ``sham'' to ask for an 
     investigation into possible corruption of Burisma and the 
     Bidens.
       Chris Heinz, the step-son of then-Secretary of State John 
     Kerry, emailed Kerry's Chief of Staff that ``Apparently, 
     Devon and Hunter both joined the board of Burisma and a press 
     release went out today. I can't speak to why they decided to, 
     but there was no investment by our firm in their company.'' 
     Heinz subsequently terminated his business relationship with 
     Devon Archer and Hunter Biden because ``working with Burisma 
     is unacceptable,'' and showed a ``lack of judgment.''
       Do you agree with Chris Heinz that working with Burisma was 
     ``unacceptable''? Did John Kerry or Joe Biden agree with 
     Chris Heinz? If not, why not?

  Mr. Manager SCHIFF. The reason why Joe Biden is not material to these 
proceedings, the reason why this is a baseless smear is that the issue 
is not whether Hunter Biden should have sat on that board or not sat on 
that board. The issue is not whether Hunter Biden was properly 
compensated or improperly compensated or whether he speaks Ukrainian or 
he doesn't speak Ukrainian.
  What the President asked for was an investigation of Joe Biden, and 
the smear against Joe Biden is that he sought to fire a prosecutor 
because he was trying to protect his son. I guess that is the nature of 
the allegation. And that is a baseless smear.
  As we demonstrated--as the unequivocal testimony in the House 
demonstrated, when the Vice President sought the dismissal of a corrupt 
and incompetent prosecutor, it had nothing to do with Hunter Biden's 
position on the board. It had everything to do with the fact that the 
State Department, our allies, the International Monetary Fund were in 
unanimous agreement that this prosecutor was corrupt. And the 
uncontradicted testimony was also that, in getting rid of that 
prosecutor, it would increase the chances of real

[[Page S724]]

corruption prosecutions going forward, not that it would decrease them.
  So the sham is this: The sham is that Joe Biden did something wrong 
when he followed United States policy, when he did what he was asked to 
do by our European allies, when he did what he was asked to do by 
international financial institutions.
  And the other sham is the Russian propaganda sham that this 
CrowdStrike--kooky conspiracy theory that the Ukrainians, not the 
Russians, hacked the DNC and that someone whisked the server away to 
Ukraine to hide it. That is Russian intelligence propaganda, and yes, 
it is a sham. And it is worse than a sham. It is a Russian propaganda 
coup is what it is. Thank God, Putin says, that they are not talking 
about Russian interference anymore; they are talking about the 
Ukrainian interference.
  Now, counsel says: Well, isn't it possible that two countries 
interfered?
  But you heard what our own Director of the FBI, Christopher Wray, 
said: There is no evidence of Ukrainian interference in our election. 
There is no evidence. So, yes, I think we can cite the FBI Director for 
the proposition that that is a sham. And that is why--that is why--we 
refer to it as such.
  But at the end of the day, what this is all about is the President 
using the power of his office, abusing the power of that office to 
engage in soliciting investigations--and actually just the announcement 
of them. If the President thought there was so much merit there, then 
why was it that he just needed their announcement?
  And what is more, as counsel just conceded before the break, Rudy 
Giuliani was not pursuing the policy of the United States. OK. If it 
wasn't the policy of the United States, then what was it? If it wasn't 
the policy to pursue an investigation of the Bidens, then what was it?
  It was a ``domestic political errand'' is what it was.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The Senator from Oregon.
  Mr. WYDEN. Mr. Chief Justice, on behalf of Senator Menendez, Senator 
Brown, and myself, I send a question to the desk for the House 
managers.
  The CHIEF JUSTICE. Thank you. Senators Wyden, Menendez, and Brown ask 
the House managers:

       The President's counsel has argued that the President's 
     actions are based on his desire to root out corruption. 
     However, new reporting indicates that Attorney General Barr 
     and former National Security Advisor Bolton shared concerns 
     that the President was granting personal favors to autocratic 
     foreign leaders like President Erdogan of Turkey. The 
     President has also acknowledged his private business 
     interests in the country like Trump Towers Istanbul. The 
     Treasury Department has not denied that the President 
     directed Treasury and the Department of Justice to intervene 
     in the criminal investigation of Halkbank, the Turkish state-
     owned bank, which has been accused of a scheme to evade 
     Iranian sanctions. Has the President engaged in a pattern of 
     conduct in which he places his personal and political 
     interests above the national security interests of the United 
     States?

  Mr. Manager JEFFRIES. Thank you, Mr. Chief Justice. I also want to 
thank the Senators, again, for your hospitality and for listening to 
both sides as we have endeavored to answer your questions. Thank you 
for that question.
  I think, first and foremost, there has been a troubling pattern of 
possible conflicts of interest that we have seen from the beginning of 
this administration through this moment, but the allegation here 
related to the abuse of power charge is that, in this specific 
instance, the President tried to cheat by soliciting foreign 
interference in an American election by trying to gin up phony 
investigations against a political opponent.
  Now, what counsel for the President has said is that what the 
President was really interested in is corruption, that he is an anti-
corruption crusader. For you to believe the President's narrative, you 
have to conclude that he is an anti-corruption crusader. Perhaps his 
domestic record is part of what Senators can reasonably consider, but 
let's look at the facts of the central charge here.
  The President had two calls with President Zelensky, on April 21 and 
on July 25. In both instances, he did not mention the word 
``corruption'' once. Released the transcripts. The word ``corruption'' 
was not mentioned by Donald Trump once.
  We also know that in May of last year President Trump's own 
Department of Defense indicated that the new Ukrainian Government had 
met all necessary preconditions for the receipt of the military aid, 
including the implementation of anti-corruption reforms. That is 
President Trump's Department of Defense saying there is no corruption 
concern as it relates to the release of the aid.
  Now, I think we can all acknowledge, as the President's counsel 
indicated, that there was a general corruption challenge with Ukraine. 
I think the exact quote from Mr. Purpura was: ``Since the fall of the 
Soviet Union, Ukraine has suffered from one of the worst environments 
for corruption in the world.''
  Certainly I believe that that is the case, but here is the key 
question: Why did President Trump wait until 2019 to pretend as if he 
wanted to do something about corruption? Let's explore.
  Did Ukraine have a corruption problem in 2017, generally? The answer 
is yes. Did President Trump dislike foreign aid in 2017? The answer is 
yes. What did President Trump do about these alleged concerns in 2017? 
The answer is nothing.
  Under the same exact conditions that the President now claims 
motivated him to seek a phony political investigation against the 
Bidens and place a hold on the money, the President did nothing. He did 
not seek an investigation into the Bidens in 2017. He did not put a 
hold on the aid in 2017. But the Trump administration oversaw $560 
million in military and security aid to Ukraine in 2017.
  In 2018, the same conditions existed. If President Trump is truly an 
anti-corruption crusader--but what happened in 2018? He didn't seek an 
investigation into the Bidens. He didn't put a hold on the aid. Rather, 
the Trump administration oversaw $620 million in military and security 
aid to Ukraine, which brings us to this moment.
  Why the sudden interest in Burisma, in the Bidens, in alleged 
corruption concerns about Ukraine? What changed in 2019? What changed 
is that Joe Biden announced his candidacy. The President was concerned 
with that candidacy. Polls had him losing to the former Vice President, 
and he was determined to stop Joe Biden by trying to cheat in the 
election, smear him, solicit foreign interference in 2020.
  That is an abuse of power. That is corrupt. That is wrong.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The Senator from Maine.
  Ms. COLLINS. Mr. Chief Justice, I send a question to the desk on 
behalf of myself, Senator Rubio, and Senator Risch.
  The CHIEF JUSTICE. Thank you. The question from Senators Collins, 
Rubio, and Risch is addressed to the House managers:

       The House of Representatives withdrew its subpoena to 
     compel Charles Kupperman's testimony. Why did the House 
     withdraw the Kupperman subpoena? Why didn't the House pursue 
     its legal remedies to enforce its subpoenas?

  Mr. Manager SCHIFF. Senators, I thank you for the question.
  When we--our practice in the House was to invite witnesses to come 
voluntarily; if they refused, to give them a subpoena. In the case of 
Dr. Kupperman, he refused to come in voluntarily, and we subpoenaed 
him.
  Almost instantly upon receipt of the subpoena, a lengthy complaint 
was filed in court where he sought to challenge that subpoena. 
Interestingly, and contrary to, I think, what you are hearing from the 
President's counsel here today, the House took the position that a 
witness cannot challenge--does not have standing to challenge a 
congressional subpoena.
  We were joined, by the way, in that position by the Justice 
Department, which also said that Dr. Kupperman didn't have jurisdiction 
to challenge or get a declaratory judgment as to the validity of the 
subpoena.
  So, in that litigation, we were often on the same page as the Justice 
Department. But more meaningful to us, we were simply not going to 
engage in a yearslong process of delay to get the answers that we 
needed.
  We proposed to Dr. Kupperman's counsel that if, as you claim, this is 
really about just wanting to get a court blessing, there is a 
willingness to

[[Page S725]]

come forward, but we just want to make sure that it is appropriate that 
we do so, if you are sincere about that, there is already a case that 
has been filed, the McGahn case, that is about to be decided. Let's 
agree to be bound by what conclusion Judge Jackson reaches in that 
case. And their answer was no.
  And, indeed, that opinion would come out shortly thereafter. That 
opinion said, this claim of absolute immunity is absolute nonsense, and 
there is no precedent for it in the 250 years of jurisprudence on this 
subject.
  So we went back to Dr. Kupperman, and, of course, Dr. Kupperman said: 
No, we would like to get our own judicial opinion.
  Now, had we gone to fruition, even though we don't believe--and it 
would have created a bad precedent that they have standing to challenge 
subpoenas that way. Had they lost, they would have gone to the court of 
appeals and the Supreme Court. They would have come back to the 
district court. And now no longer arguing absolute immunity because 
that would have been, we believe, defeated, they would make claims of 
executive privilege, and they would litigate those up through the court 
of appeals and the Supreme Court.
  We knew that course because we are in it with Don McGahn. Nine months 
after he was subpoenaed, we are still litigating it. And they are in 
Court saying Congress shouldn't do what they are saying that we should 
do before this body.
  So that is why we withdrew the subpoena. We were not going to go 
through that exercise.
  You have to ask the question, I think, why did Fiona Hill feel that 
she could come and testify? She worked for Dr. Kupperman. Why was she 
willing to show the courage to come and testify when her boss wasn't?
  There is not a good answer to that question, but I am awfully glad 
that she did because, without her, we would be that much less 
knowledgeable about this President's scheme.
  So that was the history of the Kupperman subpoena. Likewise, John 
Bolton, who has the same counsel, told us if we subpoenaed him, he 
would sue.
  Now, why is it that he is willing to testify now, and he wasn't 
willing to testify before the House? You should ask him that question. 
But that was the predicament we faced. And in our view, a President 
should not be able to defeat an investigation into his wrongdoing by 
endlessly litigating the matter in court, particularly when they are in 
court saying you can't use the court to enforce your subpoenas.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  Ms. HIRONO. Mr. Chief Justice.
  The CHIEF JUSTICE. The Senator from Hawaii.
  Ms. HIRONO. I send a question to the desk for the House managers.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Hirono is for the House managers:

       Can you talk about what has happened to whistleblowers when 
     they have been outed against their will? What are the 
     consequences of revealing their identity, particularly when 
     we have a President who has tried to bully and threaten 
     impeachment witnesses?

  Mr. Manager SCHIFF. Senator, I don't know that we can give you 
examples of whistleblowers who were the subject of retaliation, 
although I have no doubt that there are many. We can seek by the latter 
part of this evening to get a list of some of the whistleblowers that 
have confronted retaliation.
  But I--this does give me an opportunity to speak a little more--in a 
more fulsome way about a point I made earlier about the unique 
importance of whistleblowers in the intelligence community.
  Our area of intelligence is unique in this respect. If you are a 
whistleblower who wants to blow the whistle on a fraudulent contract in 
a transportation project, you can go public. If you are blowing the 
whistle on misconduct in the area of housing, you can go public. You 
can have a press conference, and you can declare the wrongdoing that 
you have seen.
  If you are a whistleblower in the intelligence community, however, 
you cannot go public. You have no recourse to bring to the public's 
attention wrongdoing, except one of really two vehicles. You can go to 
an Intelligence Committee or you can go to the inspector general.
  And in this area, where our hearings are in closed session, where you 
don't have outside stakeholders that can point out the flaws in what an 
agency is representing, if you are on the Transportation Committee and 
someone comes in and they say: This high-speed rail project is on time 
and under budget, you have outside validators and stakeholders that can 
say that is just not true.
  In the intel world where our hearings are in closed session, there 
are not outside stakeholders that are listening, that can hold those 
agencies to account. And so we are uniquely dependent when there is 
wrongdoing on two things: self-reporting by the agencies and the 
willingness of people of good faith to come forward and blow the 
whistle.
  And we do injury to that when we expose those whistleblowers to 
retaliation. I don't think any of us would have imagined a circumstance 
in which a President of the United States before now would have called 
a whistleblower a traitor or a spy or suggested that people that blow 
the whistle on his wrongdoing are traitors and spies, and we should 
treat them as we used to treat traitors and spies.
  I don't think we could have imagined a circumstance where a President 
of the United States would have told a foreign leader that the U.S. 
Ambassador--our anti-corruption champion in Ukraine--was ``going to go 
through some things.'' I don't think we could have imagined that 
happening before this Presidency. And sometimes you just have to step 
back and realize just how striking and abhorrent this is and what a 
risk it is to civility, to decency, to our institutions.
  We have become inured to it through endless repetition of attacks on 
anyone who will stand up to this President. And, of course, the risk 
is--the very reason we have a whistleblower protection, the very reason 
why whistleblowers should enjoy a right of anonymity, is that in the 
absence of that, misconduct and wrongdoing will proliferate. If there 
is not a mechanism for people lawfully to expose wrongdoing, you can 
bet that wrongdoing is going to increase. And that is why there have 
been great champions, like Senator Grassley, of whistleblower 
protections, Senator Burr and Senator Warner, and many others, because 
we all understand--at least we did heretofore--the vital importance and 
contributions that are made by American citizens who bring wrongdoing 
to our attention.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  Mr. BLUNT. Mr. Chief Justice.
  The CHIEF JUSTICE. The Senator from Missouri.


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

  
  On page S725, January 30, 2020, third column, the following 
appears: The PRESIDING OFFICER. The Senator from Missouri.
  
  The online Record has been corrected to read: The CHIEF JUSTICE. 
The Senator from Missouri.


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


  Mr. BLUNT. Mr. Chief Justice, I send a question to the desk on behalf 
of myself, Senators Hawley, Wicker, and Capito.
  The CHIEF JUSTICE. Thank you.
  The question from Senators Blunt, Hawley, Wicker, and Capito is 
addressed to counsel for the President:

       What responsibility does the president have to safeguard 
     the use of taxpayer dollars for foreign aid and work to root 
     out corruption?

  Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice and Members of 
the Senate.
  The President has an important responsibility to safeguard taxpayer 
dollars that are used in foreign aid or used anywhere, frankly, and to 
root out corruption. Now, it is no secret that President Trump, from 
the beginning, from the time he came down the escalator, has been 
committed to ensuring that American taxpayer dollars are used 
appropriately--are used appropriately. And if they are going to foreign 
countries, he wants to make sure that they are used wisely. And there 
is ample evidence of that--ample evidence of that. I don't think that 
is even disputed or disputable. And he is fulfilling that obligation.
  The other point that he makes repeatedly is that if we are helping 
countries around the world, other countries should help us help them. 
We use the word ``burden-sharing.'' What does that mean? ``Burden-
sharing'' means that if American taxpayers are going to help with a 
problem in a country around the world--and we do, and we do a lot. We 
do it to the tune of billions and billions

[[Page S726]]

of dollars. When here in our country, we need to fix our roads; we need 
to fix our bridges. So if we are going to take money away from those 
important projects here in America that come from the hard-earned 
dollars of taxpayers, why can't other countries help us? That is called 
burden-sharing. It is also called fairness. So he has that obligation, 
and every day he fulfills that obligation.
  Let me make another point in response to Senator Warren's question. 
The most important thing, in terms of the fairness of this proceeding--
and that is why I have quoted repeatedly. I haven't played the videos 
over and over again, but you remember them--the wise words, the true 
words of the Democrats in the Clinton impeachment years. And the only 
point the American people understand--they understand it, and I think 
everyone in this body understands it; that there can't be one standard 
for one political party and another for the other political party. That 
is important. Those words should be applied here. We can't have a 
standard that changes depending on what somebody thinks about political 
issues.
  In order to be fair, the same standard has to be applied, regardless 
of your party. So that is the critical issue here. And that is the 
bedrock principle, not a double standard for justice in the Senate but 
one standard--the true standard, the standard that has been articulated 
eloquently by Democrats over and over again in the Clinton proceedings. 
That is the standard that is right. That is the standard that we ask 
for, regardless of political party.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  Mr. KING. Mr. Chief Justice.
  The CHIEF JUSTICE. The Senator from Maine.
  Mr. KING. I am sending a question to the desk.
  The CHIEF JUSTICE. Senator King asks the President's counsel:

       Would it be permissible for a President to inform the Prime 
     Minister of Israel that he was holding congressional 
     appropriated military aid unless the Prime Minister promised 
     to come to the United States and publicly charge his opponent 
     with antisemitism in the midst of an election campaign?

  Mr. Counsel PHILBIN. Mr. Chief Justice and Senator, thank you for the 
question, but the question really has nothing do with this case. I 
mean, it seems to be trying to get at the most extreme hypothetical 
related to a misinterpretation of what Professor Dershowitz was saying 
the other night. It is totally irrelevant here.
  The charges that have been brought here, articulated in the Articles 
of Impeachment, are based on a theory of abuse of power; that the House 
Democrats, the House managers have made clear depends for them to make 
their case to establish that when the President raised two issues on 
the call with President Zelensky of Ukraine, he raised the 2016 
election interference, and he mentioned the Biden and Burisma incident; 
that there was not any legitimate public policy or foreign policy 
interest in mentioning those things to the President of Ukraine. That 
is the standard they have set for themselves. It is on page 5 of the 
House Judiciary Committee report, and it is on page 4. They say they 
have to show it is a sham investigation, and I think it is on page 6 
they say it is a bogus investigation. That is their standard because 
they know they have to establish that there is no legitimate public 
policy interest at all in mentioning those in order to come anywhere 
close to being able to assert something that could be a wrongful 
conduct by the President, because if there is a legitimate interest, if 
there is something there that is worth asking, they don't have a case. 
And that is why they have tried to tell you again and again there is 
not a scintilla of evidence.

  This is really pretty preposterous, for the House managers to come 
and say, particularly with respect to the Biden-Burisma incident, there 
can't be any legitimate interest in raising that question because it 
has all been debunked. And the question has been asked: Where was it 
was debunked? By whom was it debunked? Who conducted that 
investigation? Where is the report from that investigation? Who 
established that there is nothing there? There is no such report. They 
have been asked; they haven't been able to cite it. There has been no 
such investigation.
  But what do we know? We do know that every witness who was asked 
about it said, at a minimum, there was an appearance of a conflict of 
interest. We do know that these two members of the Obama 
administration--Amos Hochstein and Deputy Assistant Secretary of State 
Kent--raised the issue of the conflict of interest with Vice President 
Biden's Office. We know that Chris Heinz, the stepson of Secretary of 
State Kerry, who had been a business partner with Hunter Biden, broke 
off his business ties with him because Hunter Biden took a seat on the 
board of Burisma.
  So to say that there is nothing that could possibly merit asking a 
question about that is utterly disingenuous. It can't be said with a 
straight face. Every witness that was asked about it said that there 
was something, at least, that gave the appearance of a conflict of 
interest. There hasn't been any investigation to debunk this theory. 
There hasn't been any inquiry to find out if there is ``there'' there 
or not.
  It doesn't have to do, as Manager Schiff was suggesting, just with, 
well, why was Hunter Biden on the board, or were they paying him? It is 
the whole situation--the whole situation of, all of a sudden, he is put 
on the board at the time when his father was put in charge of Ukraine 
policy. And there are people--there were witnesses who testified in the 
House proceedings that it appeared like Burisma was trying to whitewash 
their reputation by putting people with connections on their board. And 
then there is the prosecutor being fired.
  It is just not reasonable to say that no one could possibly say: That 
looks fishy. There is something maybe that somebody should look into 
there.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from Alaska.
  Ms. MURKOWSKI. Mr. Chief Justice, I send a question to the desk.
  The CHIEF JUSTICE. Thank you. Senator Murkowski asks counsel for the 
President:

       You explain that Ambassador Sondland and Senator Johnson 
     both said the President explicitly denied that he was looking 
     for a quid pro quo with Ukraine. The reporting on Ambassador 
     Bolton's book suggests the President told Bolton directly 
     that the aid would not be released until Ukraine announced 
     the investigations the President desired. This dispute about 
     material facts weighs in favor of calling additional 
     witnesses with direct knowledge. Why should this body not 
     call Ambassador Bolton?

  Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for the 
question.
  I think the primary consideration here is to understand that the 
House could have pursued Ambassador Bolton. The House considered 
whether or not they would try to have him come testify. They chose not 
to subpoena him.
  This all goes back to the most important consideration, I think, that 
this Chamber has before it in some ways, especially on this threshold 
issue of whether there should be witnesses or not. It has to do with 
the precedent that is established here for what kind of impeachment 
proceeding this body will accept from now going forward, because 
whatever is accepted in this case becomes the new normal for every 
impeachment proceeding in the future.
  And it will do grave damage to this body as an institution to say 
that the proceedings in the House don't have to really be complete. You 
don't have to subpoena the witnesses that you think are necessary to 
prove your case. You don't really have to put it all together before 
you bring the package here. When you are impeaching the President of 
the United States--the gravest impeachment that they could possibly 
consider--you don't have to do all of that work before you get to this 
institution.
  Instead, when you come to this Chamber, it can be kind of half-baked, 
not finished--we need other witnesses, and we want this Chamber to do 
the investigation that wasn't done in the House of Representatives. And 
then this Chamber will have to be issuing the subpoenas and dealing 
with that. And that is not the way this Chamber should allow 
impeachments to be presented to it.
  We have heard--there was some exchange the other day about, well, 
there

[[Page S727]]

were a lot of witnesses in the Judge Porteous impeachment, and this 
Chamber was able to handle that. It is very different in the 
impeachment of a judge, which is being handled by a committee. My 
understanding is that, under rule XI of the Senate procedures, there 
was a committee receiving that evidence. But in a Presidential 
impeachment, there is not going to be just a committee; it is the 
entire Chamber that is going to have to be sitting as Court of 
Impeachment, and that will affect the business of the Chamber.
  So I think the idea that something comes out and somebody makes an 
assertion in a book, allegedly--it is only an alleged; it is simply 
alleged now that the manuscript says that; Ambassador Bolton hasn't 
come out to verify that, to my knowledge--that then we should start 
having this Chamber calling new witnesses and establish the new normal 
for impeachment proceedings as being that there doesn't have to be a 
complete investigation in the House, I think that is very damaging for 
the future of this institution.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from Hawaii.
  Mr. SCHATZ. Mr. Chief Justice, I have a question on behalf of myself 
and Senators Whitehouse and Heinrich, and this is for the counsel for 
the President and the House managers.
  The CHIEF JUSTICE. Thank you.
  Question from Senators Schatz, Whitehouse, and Heinrich for both 
parties:

       Can the White House really not admit that Senator King's 
     hypothetical would be wrong?

  We begin with the House managers.
  Mr. Manager SCHIFF. Senator, we have no trouble recognizing just how 
wrong that would be, but more than that, it is the natural extension of 
Professor Dershowitz' argument that if the President believed that kind 
of quid pro quo would help his reelection, then it is perfectly fine 
and nonimpeachable. There was a reason, of course, why they didn't want 
to address that hypothetical.
  Let me go back also to the question that was asked about the other 
written reports that Ambassador Bolton and Attorney General Barr were 
concerned that the President was intervening in cases in which he had 
business investments, like Turkey. Under the theory of the President's 
lawyers, that is perfectly OK, too. If the President thinks somehow 
that that is in the United States' interest because it is in his 
interest, that is perfectly fine. It is unimpeachable.
  Now, is it a crime to give preference to autocrats, to give special 
consideration to autocrats where your business investments are? That 
may not be criminal, but it is impeachable. It certainly should be 
impeachable if we are going to sacrifice the national security of the 
country, if we are going to withhold military aid, if we are going to 
bestow favors in U.S. resources to countries where the President has 
investments. Is that what we want driving U.S. policy? But that is the 
implication of what they have to say.
  I agree with counsel about one thing they said: If we have a trial 
with no witnesses, that will be a new precedent. We should be very 
concerned about the precedent we set here because it will mean 
heretofore--that when a President is impeached, that one party can deny 
the other witnesses, and that will be the new normal, that we have 
trials without witnesses, and I don't think that is the precedent we 
should be setting here.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  Mr. Counsel PHILBIN. Mr. Chief Justice, Senator, thank you for the 
question.
  Let me just begin by noting I think it is a little bit rich for 
Manager Schiff to say that one party--i.e., the President--is going to 
deny them witnesses. It was the President who was denied any witnesses 
throughout this process up until now.
  But to get back to the question on Senator King's hypothetical, if 
the President insisted that a foreign leader come here and lie about 
someone else and he was holding up military aid or a package of 
congressional aid and saying ``You have to go out and lie about this,'' 
that would be wrong. But that is not this case, and it has nothing to 
do with this case.
  But I would like to address something that Manager Schiff said 
because he immediately pivoted now to the next thing. What is in the 
newspapers? What else can we bring in from the newspapers? There is an 
allegation that the manuscript says something about conversations that 
Ambassador Bolton had with Attorney General Barr. Well, Attorney 
General Barr has issued a statement saying that allegation, that 
assertion, is not accurate, that that is false. And there are other 
allegations that are made about what might be in this manuscript. Mick 
Mulvaney has issued a statement saying that is not true.
  So to sort of play the game of, there is going to be another leak; 
somebody might write a book; there is something else--and that is, 
again, turning this body into the one doing the investigation because 
the House didn't pursue the investigation. That is not prudentially a 
wise move for this Chamber to take on that task.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from Louisiana.
  Mr. KENNEDY. Your Honor, I send a question to the desk for counsel 
for the President.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Kennedy is for counsel for the President:

       Has the House of Representatives, in its impeachment 
     proceedings or otherwise, investigated the veracity of the 
     statement by former Ukrainian Prosecutor General Victor 
     Shokin that Mr. Shokin ``believes his ouster was because of 
     his interest in [Burisma Holdings], and his claim that had he 
     remained in his post, Shokin said he would have questioned 
     Hunter Biden,'' as reported on July 22, 2019 in an article in 
     The Washington Post entitled ``As Vice President, Biden said 
     Ukraine Should Increase Gas Production. Then His Son got a 
     job with a Ukrainian Gas Company,'' by Michael Kranish and 
     David L. Stern.

  Mr. Counsel PHILBIN. Mr. Chief Justice, Senator, thank you for that 
question.
  The answer, to the best of my knowledge, is no, the House of 
Representatives did not investigate the veracity of the truth of that 
reporting about Prosecutor General Shokin. In fact, that was part of 
the point.
  As Manager Schiff was saying here, again, the House Democrats' 
position is that everything related to the entire incident of the 
Bidens and Burisma and what was going on with the prosecutor--it is all 
debunked. There is nothing to see there. Move along. Don't ask about 
it. But they didn't investigate it, and they can't point to anyone who 
has investigated it. They can't point to anyone who has really looked 
at it.

  As I said a minute ago--and I will not belabor the point--every 
witness who was asked said that they thought, yes, there was at least 
the appearance of a conflict of interest there. At least one witness--
and there is a public reporting of another person, whose name is 
Hochstein, in the Obama administration--raised the issue with Vice 
President Biden's Office, but nothing was done about it.
  There have been questions about whether Vice President Biden sought 
or received an ethics opinion. We don't know--not that I have heard of, 
not that I have seen anywhere. It is just something that no one has 
actually inquired into.
  There have been questions raised about ``Why now?'' ``Why are they 
being raised now?'' The implication the House managers have tried to 
make is it is just because Joe Biden decided in April he was going to 
run for the Presidency.
  As I explained the other day, Rudy Giuliani, as the President's 
private counsel, was exploring matters in Ukraine starting in the fall 
of 2018. He had tips because he was interested in finding out--
remember, the Mueller investigation was still ongoing at that point. It 
wasn't clear what the outcome of the Mueller investigation was going to 
be. He was trying to find out what were the origins of Russian 
interference, of the Steele dossier, of allegations of collusion by the 
Trump campaign. That led, in part, to Ukraine, and he got information 
that led him to various strands to pursue. One of them became the issue 
of the Biden and Burisma incident.
  He prepared a little package on that based on interview notes on 
January 23 and January 25 of 2019. Months before

[[Page S728]]

Joe Biden announced that he was going to run for the Presidency, Rudy 
Giuliani was interviewing Shokin and Lutsenko and wrote down in the 
interview notes stuff about the Biden and Burisma incident and the 
firing of Shokin. He put it all in a package, and he delivered it to 
the State Department in March--still before Joe Biden said he was going 
to be running for President. That didn't happen until April 25. It was 
all done--all put in a package, all delivered.
  That is public now because that little package that he sent to the 
State Department was released, I think it was, under the FOIA 
litigation, but it has been released publicly, and the notes that he 
took, his interview notes, were released publicly.
  So the timing dates back to when Rudy Giuliani was pursuing that, 
starting back in the fall of 2018 with his taking time to pursue leads. 
He was trying to get Shokin to come to this country to interview him. 
He couldn't get him a visa and had to interview him by phone. Lutsenko 
was in New York, and he prepared this package. That is why there is 
that timing.
  Then there were public articles published about the Biden-Burisma 
affair. One of them was just mentioned in the question--a Washington 
Post article, July 22, 2019, specifically about it--about the firing of 
Shokin 3 days before the July 25 telephone call. It was in the news. It 
was topical.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from Michigan.
  Mr. PETERS. Chief Justice, on behalf of myself and Senator Cornyn, I 
send a question to the desk for both House managers and the President's 
counsel.
  The CHIEF JUSTICE. Thank you.
  The question from Senators Peters and Cornyn for both parties reads:

       How would the verdict in this trial alter the balance of 
     power between the executive and legislative branches in the 
     future?

  The President's counsel goes first.
  Mr. Counsel CIPOLLONE. A verdict--a final judgment--of acquittal 
would be the best thing for our country and would send a great message 
that will actually help in our separation of powers. Here is why.
  As I have said repeatedly--and according to the standard articulated 
so well during the Clinton impeachment--what are we dealing with here? 
We are dealing with a purely partisan impeachment with bipartisan 
opposition, no crime, and no violation of law in an election year. It 
has never happened before--no investigation, no due process, nothing.
  What they are telling you--I mean, we can talk all we want, and we 
will, but what are we talking about at the end of the day? We are 
talking about removing the President of the United States from the 
ballot in an election that is occurring in months. Who thinks that is a 
good idea, particularly when you are dealing with a purely partisan 
impeachment that was warned about from the Framers?
  The only appropriate result that will not damage our country 
horribly--maybe forever but certainly for generations--is a verdict of 
acquittal.
  Here is the other point. In getting back to the question of 
witnesses, Mr. Schiff is up here: Let's make a deal. How about we have 
the Chief Justice--and we have the greatest respect for the Chief 
Justice. Here is the problem. We are talking about critical 
constitutional rights that have been protected by the Supreme Court 
over our history. So what is he really saying? Think about these 
questions.
  The Senate can decide about executive privilege by a vote--by a 
majority vote. With the greatest respect--with the greatest respect--if 
the Senate can just decide there is no executive privilege, guess what? 
You are destroying executive privilege. Can the Senate decide the 
House's speech or debate protection? I mean, when we ask for documents 
from Mr. Schiff and his staff and he says ``speech or debate,'' are you 
going to decide that? Is that how we are going to do this? Are we going 
to flip a coin? Is that going to be your next suggestion?
  We are talking about an election of the President. There are critical 
constitutional issues that will alter our balance of power for 
generations if we go down that road.

  Down this road is the path provided by the Democrats so wisely during 
the Clinton administration.
  The CHIEF JUSTICE. Thank you, counsel.
  Mr. Manager SCHIFF. Mr. Chief Justice, it may be different in the 
court than it is in this Chamber and in the House, but when anybody 
begins a sentence with the phrase ``I have the greatest respect for,'' 
you have to look out for what follows.
  We trust the Justice will make the right decision. The Justice has, I 
think, conducted these proceedings in an eminently fair way.
  There is nothing in the Constitution that would preclude us from 
taking a week to hear from witnesses and allowing the Chief Justice to 
make those calls.
  I would say also, with respect to an argument counsel made about the 
Porteous impeachment trial, where, yes, the Senate designated 12 
Senators to hear the witness testimony, the implication is, you can't 
do that in an impeachment of the President. That is only half correct. 
The other half is, you can do depositions in which only a couple of 
Members of the body need participate. So it is a false argument to say 
or to suggest that the whole body would need to conduct the whole of 
the depositions. So much as we would like live testimony, we have 
offered a compromise.
  With respect to the question about what this will do to the balance 
of power, I would say this: As I mentioned earlier, our relationship 
with Ukraine will survive this debacle. But if we hold that a President 
can defy all subpoenas, can tie up the Congress endlessly with bad-
faith claims of privilege--claiming here one thing and claiming in 
court something else--it will eviscerate our oversight power. If the 
President is allowed to decide which subpoenas they will deign to 
consider valid and which they will deign to consider invalid, your 
oversight power and our oversight power is gone. That is an irrevocable 
change to the balance of power.
  What is more, if we adopt their theory of the case that a President 
can abuse his power and do so by holding another country hostage by 
withholding congressionally appropriated funds and can violate the law 
in doing so as long as they think it is in their interest, imagine what 
that will do to the balance of power. Article II will really mean what 
the President says it means, which is he can do whatever he wants.
  So, yes, the stakes are big here. Article II goes to whether our 
oversight power--particularly in a case of investigating the 
President's own wrongdoing--continues to have any weight or whether the 
impeachment power itself is now a nullity.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The Senator from Florida.
  Mr. RUBIO. Mr. Chief Justice, I send a question to the desk on behalf 
of myself and Senators Capito and Scott of South Carolina--with all due 
respect.
  The CHIEF JUSTICE. The question from Senators Rubio, Capito, and 
Scott of South Carolina is directed to both parties, and we will begin 
with counsel for the House managers.
  The question reads:

       If I understand the Managers' Case: The President abused 
     his power because he acted contrary to the advice of his 
     advisors, but he is guilty of obstruction of Congress because 
     he acted in accordance to the advice of his advisors.

  Mr. Manager SCHIFF. That is not our argument at all. The President is 
impeached on article I not because he acted contrary to the advice of 
his advisers. That is a red herring offered by the President's legal 
team. We are not saying that the President is not free to disregard the 
advice of his counsel. He is. He is entitled to disregard even really 
good advice. What he is not free to do is to engage in corruption. What 
he is not free to do is to withhold military aid--not for a valid 
policy disagreement. They have conceded Rudy Giuliani was not doing 
policy. What is not permitted is for a President to withhold 
congressionally appropriated money for a corrupt purpose--to secure 
help, to illicit foreign help, and cheat in an election. That is no 
policy disagreement.
  Now, are we arguing in article II that he should be impeached for 
following his lawyers' advice? No. They were following his advice. His 
advice was to fight all subpoenas. They were giving

[[Page S729]]

the legal window dressing to that. They were going to court and arguing 
one thing and coming before you and arguing another. He was not 
following their advice; they were following his. You can say a lot 
about Donald Trump, but he is not led around by the nose by his legal 
counsel. Ask Don McGahn about that. Don McGahn stood up to the 
President.
  Bob Mueller--if we are going to talk about the Mueller report--found 
several instances--and this goes to the pattern of the President's 
misconduct--in which he sought to obstruct that investigation, 
including telling the President's lawyer that he should fire the 
special counsel and then that he should lie about that instruction.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice, Members of the 
Senate.
  You are right. That is yet another way in which the House managers' 
theories of impeachment are incoherent and dangerous.
  With respect to article II--and again, I won't respond to the ad 
hominem attacks that keep coming. I will say, just for the record, you 
are right--I haven't been elected to anything, but when I say ``with 
the greatest respect,'' I mean it.
  Article II: The President has been impeached for exercising 
longstanding constitutional rights. He is looking out for 
constitutional rights in the face of a House process that violated all 
of them against all precedent, and he is looking out for future 
Presidents and for the executive branch. How? If he had said, ``OK. 
Fine. No rights. No counsel. No witnesses. No right to cross-examine. 
Here is everything you asked for,'' what sort of precedent would that 
set? That would irreparably damage the separation of powers.
  Again, all you need to look at are the Articles of Impeachment. The 
Articles of Impeachment do not allege a crime. They do not even allege 
a violation of law. They are purely partisan. They were opposed by 
Democrats in the House.
  It is an election year, and they are here, saying: Instead of an 
election, let's confront very consequential, constitutional issues that 
have never really been confronted, and let's do it in a week. Let's 
destroy executive privilege. Maybe let's destroy speech and debate 
privilege.
  Let me point out one other thing. It is not right to accuse somebody 
falsely of something and then say: Unless you waive your constitutional 
rights, you are guilty. That is not right. We shouldn't accept that in 
this country. These are the longstanding privileges. They have been 
respected for hundreds of years, and we should continue to respect 
them.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from West Virginia.
  Mr. MANCHIN. Mr. Chief Justice, I send a question to the desk on 
behalf of myself for the President's counsel and House managers.
  The CHIEF JUSTICE. Thank you.
  The question is from Senator Manchin for both parties. We will begin 
with the President's counsel.

       Over the past two weeks, the White House counsel had 
     detailed all the problems associated with the House's 
     decision to move quickly through their impeachment 
     proceedings. Why shouldn't this body heed their advice and 
     slow down and at least allow the judge to rule in the McGahn 
     case to give the members of this body an official opinion 
     from the Judiciary on Article II?

  Mr. Counsel PHILBIN. Mr. Chief Justice, Senator, thank you for the 
question.
  I think the key point here is the McGahn case is not going to 
directly resolve something related to the obstruction charges here. It 
is going to address a legal issue with respect to an assertion of 
absolute immunity for Don McGahn.
  There should be a decision from the DC Circuit sometime soon, but 
that will almost certainly go to the Supreme Court. I mean, that 
immunity is being challenged, and it has been relied upon by the 
executive for over 40 years. That is an issue destined for the Supreme 
Court.
  So the idea--it is not going to be just to slow down here a little 
bit. This trial can't be held open pending a final resolution of that 
litigation, and that is an important point, because this is something 
that Alexander Hamilton pointed out in Federalist No. 65, when he was 
discussing who should be the body to try impeachments. One 
consideration was potentially drawing in judges from various States to 
create a new body to try impeachments, and the rationale that Hamilton 
gave that that would be a bad idea is that there has to be swift 
progression from an impeachment to the trial, to a verdict, to having 
it finished, precisely because this is where he talked about ``the 
persecution of an intemperate or designing majority in the House of 
Representatives.''
  He recognized there could be partisan impeachments, and that 
accusation, that impeachment, shouldn't been hanging out there. There 
should be a swift trial to determine things finally, and that is why 
all of the preparation ought to be done in the House of Representatives 
to ensure that there is an investigation, there is a case put together. 
And, if they are ready to impeach the President of the United States, 
they had better be finished, have everything buttoned down, and have 
their case ready because they can't have a trial of the President--
Hamilton warned against that specifically--hanging over the country for 
months on end.
  And so to push off this trial to say: Well, we will wait for 
litigation and at that point--that is a very dangerous idea, and that 
is not the way that the trial here should operate. It ought to be 
finished on the basis of the case that the House managers came ready to 
present. If they weren't ready to present a case that can win, there 
should be an acquittal.
  Thank you.
  Mr. SCOTT of South Carolina. Mr. Chief Justice.


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

  
  On page S729, January 30, 2020, third column, the following 
appears: Thank you. Mr. SCOTT of South Carolina. Mr. Chief 
Justice.
  
  The online Record has been corrected to read: Thank you, 
Counsel. Mr. SCOTT of South Carolina. Mr. Chief Justice.


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


  The CHIEF JUSTICE. We have another half of the presentation.
  Mr. Manager SCHIFF. If we could--Senator, if we could pull up slide 
37, this is what the district court had to say in the McGahn 
litigation, now on appeal:

       Executive branch officials are not absolutely immune from 
     compulsory congressional process no matter how many times the 
     executive branch has asserted as much over the years.

  That is consistent with the decision in the Miers case, where the 
court said:

       Clear precedent and persuasive policy reasons confirm that 
     the Executive cannot be the judge of its own privilege and 
     hence Ms. Miers is not entitled to absolute immunity.

  Let's look at what the court said on slide 38, where Judge Jackson 
said:

       Stated simply, the primary takeaway from the past 250 years 
     of recorded American history is that Presidents are not kings 
     . . . compulsory appearance by dint of a subpoena is a legal 
     constrict not a political one, and per the Constitution no 
     one is above the law.

  This is the district court saying: Thou shalt appear and this claim 
of absolute immunity is absolute nonsense.
  In the court, now, this is what the Justice Department is arguing in 
that case, if we can see slide 39.

       The committee lacks article III standing to sue to enforce 
     a congressional subpoena demanding testimony from an 
     individual on matters related to his duties as an executive 
     branch official.

  And so here we are. We are now in a court of appeals, the Justice 
Department is saying that you cannot force congressional subpoenas, and 
they are saying: Well, let's continue to litigate the matter. Let this 
play out further.
  To what end? To what end? Yes, I suppose we could wait for a court of 
appeals decision, but, of course, they would say they are not satisfied 
with that court throwing out this idea either.
  Well, look, we have got a perfectly good Justice right here that can 
make these decisions. Let's let him make the call. Let's let him make 
the call. Let's trust that he would be fair and impartial.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The Senator from South Carolina
  Mr. SCOTT of South Carolina. Thank you, sir.
  I send a question to the desk on behalf of myself, Senators Hawley, 
Sasse, and Barrasso.
  The CHIEF JUSTICE. Thank you.
  The question from Senators Scott of South Carolina, Hawley, Sasse, 
and Barrasso is to the counsel for the President:

       During their presentation, the House Managers referenced 
     Chairman Gowdy and the

[[Page S730]]

     House Benghazi Investigation. The final report on Benghazi 
     flatly says ``The administration did not cooperate with the 
     investigation.'' That committee fought for two years to 
     access information, and often had information requests 
     ignored or denied. Yet this House investigation, after just 3 
     months, already supposedly justifies impeachment. Does 
     President Trump owe more compliance than other Presidents 
     did?

  Mr. Counsel SEKULOW. Thank you, Mr. Chief Justice.
  Part of what we are seeing, I believe, is kind of a two-fold attack 
or approach. We just saw a citation to two district court opinions, as 
if the final arbiter of an issue of this magnitude is going to be the 
district court--or, for that matter, the court of appeals.
  You are right. It is going to be the Supreme Court of the United 
States, if it goes in that direction.
  Now, with regard to the question about the statement in the Benghazi 
report that the administration did not cooperate, the same was also 
true with Fast and Furious and the investigation there. And in that 
particular investigation, it reached such a significant point that 
Members of the House determined that the then-Attorney General of the 
United States should be held in contempt.
  Now, President Obama exercised executive privilege over documents and 
testimony related to Fast and Furious. The constitutional process was 
followed.
  Now, I am not the one that makes the decision whether that was 
privileged or not privileged. If there was going to be a challenge, it 
would have been adjudicated. But the fact of the matter is, at least 10 
times tonight Manager Schiff has said: We have complete confidence in 
the Chief Justice, ignoring the fact that it is not his call. And I 
mean that with all sincerity, since you are making fun of people who 
are saying ``with due respect.'' It is not--that is not the way it is 
set up.
  Now, you could agree to anything. Sure, you can negotiate. You can 
negotiate that all the witnesses that will be called will be the 
witnesses they requested, or you could negotiate that since they had 17 
and we had none, we get 17 and they get 4. All kinds of things can be 
negotiated under their view.
  But this is brought to you by the managers who have an overwhelming 
case that they proved over and over again. That is what they say. They 
have proved it. It is overwhelming. It is incredible. We were able to 
put it together in a record amount of time. And now we want you, the 
U.S. Senate, to start calling witnesses for our overwhelmingly proved 
case.
  I would just lay this down: If we are negotiating, why don't we just 
go to closing arguments, and see what this body decides?
  But I respect the process. The process is we have 2 days of 
questioning. Tomorrow there will be an argument on the motion. There 
will be a decision on the motion, and we have to--that is the system 
that is in place. That is the system we should follow.
  But this idea that two district court judges have decided an issue of 
this magnitude and that is now the determination--they wouldn't accept 
it if they were in our position. They would say: Well, the district 
court decided; so that is going to be it.
  So I think we need to look at what is really at stake. These are 
really significant issues. These are serious. I mean, the idea that 
executive privilege should just be waived or doesn't exist, that, in 
your view, absolute immunity can't possibly exist--it has only been 
utilized for administrations for 50 years or more.
  Professor Dershowitz gave you the list of Presidents that have put 
forward executive privilege, and in a lot of his writings, he talks 
about it.
  But to say tonight that we are just going to--you know, we will just 
cut a deal. We will do it in a week. We will get some depositions, and 
that will make everyone happy.
  It doesn't make the Constitution happy.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from Ohio.
  Mr. BROWN. Mr. Chief Justice, I send a question to the desk on behalf 
of Senators Casey, Klobuchar, Warren, and Wyden for the House managers.
  The CHIEF JUSTICE. Thank you.
  The question for the House managers from Senator Brown and the other 
Senators is as follows:

       Yesterday, you referenced how President Trump's 
     perpetuating and propagating Russian conspiracy theories 
     undercut our national security objectives. If acquitted in 
     the Senate, what would prevent the President from continuing 
     to side with Putin and other adversaries, instead of our 
     intelligence community and career diplomats, and what are the 
     implications on our national security agenda if such behavior 
     continues, unchecked?

  Mr. Manager CROW. Mr. Chief Justice, Senators, thank you for the 
question.
  You know, I have talked a lot tonight and throughout the last week 
about what is at stake here, because, you know, it is getting late into 
the night, and we have been having this debate for several days now. 
There is a lot of discussion in the legal aspects of this. So I don't 
want to get into, again, you know, the issues of our troops in Europe, 
the hot war that continues to happen right now as we are speaking in 
Ukraine, but I will reiterate the precedent that we set with regard to 
Russia and foreign adversaries--you know, this idea that it is OK to 
continue to pedal in Russian propaganda and debunked conspiracy 
theories--because counsel for the President would have you believe 
that, you know, this is a policy discussion, that, you know, we have 
not resolved this, that there is a lot of debate about this issue. And 
if that is indeed the case, if we concede that, then, there are some 
witnesses that we can call on, including Ambassador Bolton, that could 
shed additional light on it.
  But the fact pattern that we are sitting at right now--what we are 
talking about right now--is 17 witnesses that were called in the House, 
none of whom had any indicia or had any data to provide that any of 
these theories were accurate.
  We have the entire intelligence and law enforcement community of the 
United States unanimously saying that there is no indication that 
Ukraine was involved in the 2016 election, that it was Russia.
  And don't buy the red herring, by the way, that counsel for the 
President has brought forth--this idea that, oh, it can only be Russia. 
You know, they said earlier that we are claiming that it can only be 
Russia. That is not what we are saying. Nobody on this team has ever 
said it can only be Russia, because, indeed, we know, as many of these 
people in the Chamber know well, that there are a lot of mal actors out 
there, that there are a lot of countries out there that have the 
capability and the will and that regularly try to attack us in a 
variety of ways.
  What we are saying is, with respect to this issue that is before the 
body right now, that, unanimously, the law enforcement agencies of the 
United States and the intelligence communities of the United States 
have said that it was Russia that interfered in the 2016 elections and 
that there is no data to suggest Ukraine was involved. That is the 
issue.

  So the precedent--bringing it all around to the beginning of the 
question, the precedent is that all of our adversaries, including 
Vladimir Putin, will understand that they can play to the whims of one 
person, whether that be President Trump or some future President, 
Democrat or Republican. They can play to the whims and the interests 
and the personal political ambitions of one person and get that 
individual to propagate their propaganda, get them to undermine our own 
intelligence and law enforcement communities. That is a precedent that 
I don't think anybody here is willing and interested in sending, and 
that is truly what is at stake.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The Senator from North Dakota.
  Mr. HOEVEN. Mr. Chief Justice, I am sending a question to the desk 
for myself, Senator Boozman, Senator Wicker, and Senator Capito.
  The CHIEF JUSTICE. The question for counsel for the President from 
Senators Hoeven, Boozman, Wicker, and Capito:

       House managers contend that they have an overwhelming case 
     and that they have made their case in clear and convincing 
     fashion. Doesn't that assertion directly contradict their 
     request for more witnesses?

  Mr. PHILBIN. Mr. Chief Justice, Senators, thank you for the question.
  I think it does directly contradict their claim now that they need 
more

[[Page S731]]

witnesses. They said for weeks that it was an overwhelming case. They 
came here and they have said 63 times that it is overwhelming or proved 
beyond a reasonable doubt. Manager Nadler said twice today that based 
on what they have already shown you, it has been proved beyond any 
doubt.
  All right, if that is their position, why do they need more witnesses 
or evidence? It is completely self-contradictory.
  I would like to address a couple of other points while I am here and 
I have the time, and we have gone back and forth on this, and I don't 
know why I have to say it again, but the House managers keep coming up 
here and saying and acting as if, if you mention Ukraine in connection 
with election interference, if you even mention it, you are a pawn of 
Vladimir Putin because only the Russians interfered in the election and 
there is not any evidence in the record--they say--the Ukrainians did 
anything.
  I read it before; I will read it again. One of their star witnesses, 
Fiona Hill, said that some Ukrainian officials ``bet on Hillary Clinton 
winning the election,'' so it was ``quite evident'' that ``they were 
trying to curry favor with the Clinton campaign,'' including by 
``trying to collect information . . . on Mr. Manafort and on other 
people as well.'' That was Fiona Hill.
  There was also evidence in the record from a POLITICO article in 
2017. There was a whole bunch of Ukrainian officials who had done 
things to try to help the Clinton campaign and the DNC and to harm the 
Trump campaign.
  In addition, two news organizations, both POLITICO and the Financial 
Times did their own investigative reporting, and the Financial Times 
concluded that the opposition to President Trump led ``Kiev's wider 
political leadership to do something they would never have attempted 
before: [to] intervene, however indirectly, in a US election''--the 
Financial Times.
  So the idea that there is no evidence whatsoever of Ukrainians doing 
anything to interfere in any way is just not true. They come up here 
and say it again and again, and it is just not true.
  The other thing I would like to point out, Manager Schiff is 
suggesting that somehow we are coming here and saying one thing and the 
Department of Justice is saying something else in court about 
litigation. That is also not true.
  We have been very clear every time. The position of the Trump 
administration, like the Obama administration, is that when Congress 
sues in an article III court to try to enforce a subpoena against an 
executive branch official, that is not a justiciable controversy, and 
there is not jurisdiction over it. The House managers in the House, 
though, take the position that they have that avenue open to them.
  So our position is when we go to court, we will resist jurisdiction 
in the court, but if the House managers want to proceed to impeachment, 
where they claim that they have an alternative mechanism available to 
them, our position is, the Constitution requires incrementalism in 
conflicts between the branches, and that means that first there should 
be an accommodation process, and then Congress can consider other 
mechanisms at its disposal, such as contempt or such as squeezing the 
President's policies by withholding appropriations or other mechanisms 
to deal with that interbranch conflict or, if they claim they can sue 
in court, to sue in court. But an impeachment is a measure of last 
resort.
  Now, earlier, Manager Schiff suggested that today in court, the 
Department of Justice went in and said: There is no jurisdiction. And 
when the judge said: Well, if there is no jurisdiction to sue, then 
what can Congress do? And the DOJ, the key representative, simply said: 
Well, if they can't sue, then they can impeach--as if that was the 
direct answer to just go from if you can't sue, the next step is 
impeachment.
  Now that didn't seem right to me, because I didn't think that was 
what DOJ would be saying, and DOJ put out a statement. I don't have a 
transcript of the hearing. They don't have the transcript ready yet, as 
far as I know, but DOJ said, and this is a quote from the statement:

       The point we made in court is simply that Congress has 
     numerous political tools it can use in battles with the 
     executive branch--appropriations, legislation, nominations, 
     and potentially in some circumstances even impeachment. For 
     example, it can hold up funding for the President's preferred 
     programs, pass legislation he opposes, or refuse to confirm 
     his nominees.

  This is continuing their statement:

       But it is absurd for Chairman Schiff to portray our mere 
     description of the Constitution as somehow endorsing his rush 
     to an impeachment trial.

  Thank you.
  The CHIEF JUSTICE. The Senator from Connecticut.
  Mr. BLUMENTHAL. Thank you, Mr. Chief Justice. I send a question to 
the desk for the House managers.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Blumenthal to the House managers:

       On April 24, 2019--one day after the media reported that 
     former Vice President Biden would formally enter the 2020 
     U.S. Presidential race--the State Department executed 
     President Trump's order to recall Ambassador Marie 
     Yovanovitch, a well-regarded career diplomat and anti-
     corruption crusader. Why did President Trump want, in his 
     words, to ``take her out''?

  Mr. Manager SCHIFF. Mr. Giuliani has provided the answer to that 
question. He stated publicly that the reason they needed to get 
Ambassador Yovanovitch out of the way was that she was going to get in 
the way of these investigations that they wanted. This is the 
President's own lawyer's explanation for why they had to push out--why 
they had to smear--Ambassador Yovanovitch.
  So the President's own lawyer gives us the answer, and that ought to 
tell us something in a couple of respects: one, that the President's 
own agents have said that she was an impediment to getting these 
investigations. She was this anti-corruption champion, this anti-
corruption champion who is at an awards ceremony or recognition 
ceremony for a Ukrainian anti-corruption fighter, a woman who had acid 
thrown in her face and died a painful death after months. She is at the 
very ceremony acknowledging this other champion fighting corruption 
when she gets the word: You need to come back on the next plane.
  One of the reasons the Ukrainians knew they had to deal with Rudy 
Giuliani is that Rudy Giuliani was trying to get this Ambassador 
replaced. And, you know, he succeeded. He succeeded, and that sent a 
message to the Ukrainians that if Rudy Giuliani had the juice with the 
President of the United States, the power with the President of the 
United States to recall an Ambassador from her post, this is not only 
somebody who had the ear of the President but could make things happen.
  So the short answer is that Rudy Giuliani tells us why she had to go.
  Now why they had to smear her, why the President couldn't simply 
recall her--that is harder to explain. But the reason they wanted her 
out of the way is they wanted to make these investigations go forward, 
and they knew someone there fighting corruption was getting in the way 
of that.
  Now I wanted to say, with respect to some of the arguments against 
having the testimony of John Bolton, these are some of the former 
National Security Advisors who have been called to hearings and 
depositions: Zbigniew Brzezinski, National Security Advisor for 
President Carter, provided 8 hours of public hearing testimony and 
additional deposition testimony before the Senate Judiciary Committee 
Subcommittee to Investigate Individuals Regarding the Interests of 
Foreign Governments; Admiral Poindexter testified, providing 25 hours 
of public hearing testimony and 20 hours of deposition testimony before 
the House Select Committee to Investigate Covert Arms Transactions with 
Iran; Robert McFarland, former National Security Advisor for President 
Ronald Reagan, provided over 20 hours of hearing testimony and 3 
additional hours of deposition testimony; Samuel Berger, National 
Security Advisor to President Clinton, provided 2 hours of public 
hearing testimony before the Senate Committee on Governmental Affairs, 
its inquiry into campaign finance practices; Condoleezza Rice, National 
Security Advisor to President George W. Bush, 3 hours of public 
testimony, additional closed session testimony; Susan Rice provided 
closed session testimony to the House Select Committee on how the Obama 
administration handled identification of U.S. citizens in U.S. 
intelligence reports.

[[Page S732]]

  There is ample precedent where it is necessary to have testimony of 
National Security Advisors.
  Now you saw, I think, President's counsel dancing on the head of a 
pin to try and explain why they are before you arguing ``We can't have 
these people come here; the House should sue in court'' and why they 
are in court saying ``The court can't hear it.''
  I have to say I have a great understanding of the difficulty of that 
position. I wouldn't want to be in a position of having to advocate 
that argument. But it goes to the demonstration of bad faith here. How 
can you be before this body saying ``You have got to go to court; the 
House was derelict because it didn't go to court,'' and go to the same 
court and say ``The House shouldn't be here''? How do you do that?
  Now, they say: Well, the House is in court, so the House must think 
it is OK, even though we don't think so, and we will argue that and 
take it all the way up to the Supreme Court if we have to.
  We don't think that is an adequate remedy. That is the whole problem. 
When you have bad faith indication of privilege, when you have, in 
fact, nonassertion of privilege, when you have a President who wants to 
continue to cover up his wrongdoing indefinitely--a President who is 
trying to get foreign help on the very next election--that process of 
going endlessly up and down the courts with a duplicitous counsel to 
the President arguing ``In one place you can do it and the other place 
you can't'' shows the flaw with a precedent that Congress must exhaust 
all remedies before it can insist on answers with the ultimate remedy 
of impeachment.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The majority leader is recognized.


                                 Recess

  Mr. McCONNELL. Mr. Chief Justice, I suggest we take a 5-minute break.
  The CHIEF JUSTICE. Without objection, it is so ordered.
  There being no objection, the Senate, at 9:13 p.m., sitting as a 
Court of Impeachment, recessed until 9:25 p.m., whereupon, the Senate 
reassembled when called to order by the Chief Justice.
  The CHIEF JUSTICE. The Senate will come to order.
  Ms. ERNST. Mr. Chief Justice.
  The CHIEF JUSTICE. The Senator from Iowa.
  Ms. ERNST. Mr. Chief Justice, I send a question to the desk for 
myself and Senator Lankford.
  The CHIEF JUSTICE. Thank you. The question from Senators Ernst and 
Lankford is for the counsel for the President:

       Members of the House Permanent Select Committee on 
     Intelligence, of which Manager Schiff sits as Chairman, 
     conducted a number of depositions related to this impeachment 
     inquiry. One of the individuals deposed was Intelligence 
     Community Inspector General Michael Atkinson. Has the White 
     House been provided a copy of this deposition transcript? Do 
     you believe this transcript would be helpful? If so, why?



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

  
  On page S732, January 30, 2020, first and second columns, the 
following appears: Members of the House Permanent Select Committee 
on Intelligence, of which Manager SCHIFF sits as Chairman, 
conducted a number of depositions related to this impeachment 
inquiry. One of the individuals deposed was the Intelligence 
Community Inspector General Michael Atkinson. Has the White House 
been provided a copy of this deposition transcript? Do believe 
this transcript would be helpful? If so, why?
  
  The online Record has been corrected to read: Members of the 
House Permanent Select Committee on Intelligence, of which Manager 
SCHIFF sits as Chairman, conducted a number of depositions related 
to this impeachment inquiry. One of the individuals deposed was 
Intelligence Community Inspector General Michael Atkinson. Has the 
White House been provided a copy of this deposition transcript? Do 
you believe this transcript would be helpful? If so, why?


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


  Mr. Counsel PHILBIN. Mr. Chief Justice and Senator, thank you for 
that question.
  We have not been provided that transcript. My understanding is that 
the inspector general for the intelligence community, Mr. Atkinson, 
testified in executive session, and HPSCI has retained that transcript 
in executive session and was not transmitted to the House Judiciary 
Committee, and, therefore, under the terms of H. Res. 660, was not 
turned over to the White House counsel, so we have not seen it.
  I just want to clarify: We don't think there is any need to start 
getting into more evidence or witnesses, but if one were to start going 
down that road, I think that that transcript could be relevant because 
it is my understanding, from public reports, that there were questions 
asked of the inspector general about his interactions with the 
whistleblower, and there is some question in public reports about 
whether the whistleblower was entirely truthful with the inspector 
general on the forms that were filled out and whether or not, you know, 
there were certain representations made about whether or not there had 
been any contact with Congress, and that then ties into the contact 
that the whistleblower apparently had with the staff and committee, 
which we also don't know about.
  So if we were to go down the road, we don't think it necessary. We 
think that this--these Articles of Impeachment should be rejected. But 
if one were to go down the road with any more evidence or witnesses, it 
would certainly be relevant to find out what the inspector general of 
the intelligence community had to say about the whistleblower, along 
with the other issues that we mentioned about the whistleblower's bias, 
motivation: What were his connections with the whole situation of the 
Bidens? And, apparently, if he worked with Vice President Biden, did he 
work--he worked on Ukraine issues, according to public reports--how 
does that all tie in? All of those things would become relevant in that 
instance. Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  Mr. JONES. Mr. Chief Justice.
  The CHIEF JUSTICE. The Senator from Alabama.
  Mr. JONES. Thank you, Mr. Chief Justice. I send a question to the 
desk on behalf of myself, Senator Manchin, and Senator Sinema.
  The CHIEF JUSTICE. Thank you. The question from Senators Jones, 
Manchin, and Sinema is directed to the House managers:

       So much of the questions and answers, as well as the 
     presentations, have focused on the completeness of the House 
     record. Should the House have initiated the formal 
     accommodations process with the Administration to negotiate 
     for documents and witnesses after the passage of H. Res. 660? 
     And regardless of whether the House record is sufficient or 
     insufficient to find the President guilty or not guilty, what 
     duty, if any, does the Senate owe to the American public to 
     ensure that all relevant facts are made known in this trial 
     and not at some point in the future?

  Mr. Manager SCHIFF. Senators, thank you for the question.
  It was apparent from the very beginning, when the President announced 
that they would fight all subpoenas, when the White House Counsel 
issued its October 8 diatribe saying they would not participate in the 
inquiry, that they were not interested in any accommodation.
  We tried to get Don McGahn to testify. We tried that route. We have 
been trying that route for 9 months now. We tried for quite some time 
before we took that matter to court, with absolutely no success.
  And I think what we have seen is, there was no desire on the part of 
the President to reach any accommodation. Quite the contrary, the 
President was adamant that they were going to fight in every single 
way.
  Now, if they had an interest in accomodation, we wouldn't be before 
you without a single document. There would have been hundreds and 
hundreds of documents provided. We would have entered an accommodation 
process over claims of--narrow claims of privilege as to this sentence 
or that sentence. They would have had to make a particularized claim 
that we could have negotiated over. But, of course, they did none of 
that.
  They said: Your subpoenas are invalid. You have to depart from the 
bipartisan rules of how you conduct your depositions. Essentially, our 
idea of accommodation is you have to do it our way or the highway. And 
the President's instructions, the President's marching orders were: Go 
pound sand.
  Now, what is the Senate's responsibility in the context of a House 
impeachment for which there was such blanket obstruction? And bear in 
mind, if you compare this to the Nixon impeachment, Richard Nixon told 
his people to cooperate, provided documents to the Congress. Yes, there 
were some that were withheld, and that led to litigation, and the 
President lost that litigation. But the circumstances here are very 
different.
  Frankly, the President could have made this difficult case but didn't 
because of the wholesale nature of the obstruction.
  Now, in terms of the Senate's responsibility, the Constitution says:

       The Senate shall have the sole Power to try all 
     Impeachments. When sitting for that Purpose, they shall be on 
     Oath or Affirmation.

  And so you have the sole power.
  That expression is used, I believe, only twice in the Constitution: 
One, when it tells the House that we have the sole power to conduct an 
impeachment proceeding; and, again, the process we used--and they can 
repeat this

[[Page S733]]

as often as they would like--it is the same process used in the Clinton 
and Nixon impeachments. And I am sure Clinton and Nixon thought that 
was unfair, but, nonetheless, we used the same process.
  But, here, you have the sole power to try the case. And if you decide 
that 1 week is not too long, in the interest of a fair trial, to have 
depositions of key witnesses, that is for you to decide. You get to 
decide how to try the case.
  And so if you decide that you have confidence in the Chief Justice of 
the Supreme Court to make decisions about materiality and relevance and 
privilege and make those line-by-line redactions, if they are 
warranted, if you decide you trust the Chief Justice to decide whether 
privilege is being applied properly or improperly to conceal crime or 
fraud or for legitimate national security purpose, you have the sole 
power to make that happen. That is within--every bit within your right, 
and we would urge you to do so.
  Now, counsel for the President says the Constitution doesn't require 
that. The Constitution doesn't prohibit that. It gives you the sole 
power to try this case. And under your sole power, you can say: We have 
made a decision. We are going to give the parties 1 week. We are going 
to let the Chief Justice make a fair determination of who is pertinent 
and who is not. We are not going to let the House decide who the 
President's witnesses are; we are not going to let the President decide 
who the House witnesses are. We are going to let them both submit their 
top priorities, and we are going to let the Chief Justice decide who is 
material and who is not. That is fully within your power.
  And so, in sum and substance, there is no evidence of an intention or 
willingness in any way, shape, or form to accommodate in the House. If 
there was, we wouldn't be here. Instead, there was: We will fight all 
subpoenas, and under article II, I can do whatever I want. And now we 
are here.
  And they make the astounding claim: If their case is so good, let 
them try it without witnesses. That wouldn't fly before any judge in 
America, and it shouldn't fly here either.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  Mrs. BLACKBURN. Mr. Chief Justice.
  The CHIEF JUSTICE. The Senator from Tennessee.
  Mrs. BLACKBURN. I send to the desk a question on behalf of myself and 
Senators Lee and Johnson.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Blackburn and Senators Lee and Johnson is 
for counsel for the President:

       What was the date of first contact between any member of 
     the House Intelligence committee staff and the whistleblower 
     regarding the information that resulted in the complaint? How 
     many times have House Intelligence committee members or staff 
     communicated in any form with the whistleblower since that 
     first date of contact?

  Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for that 
question.
  The answer is, we don't know. Nobody knows. We don't know when the 
first contact was. We don't know how many contacts there were. We don't 
know what the substance of the contact was. That all remains shrouded 
in some secrecy.
  And as I said a moment ago, we think that the way this case has been 
presented, this body should simply acquit. There is no need to get more 
evidence to probe into that.

  But if we were to go down the road of any evidence or witnesses, then 
those are certainly relevant questions and relevant things to know 
about, to understand what those contacts were, what the whistleblower's 
motivation was, what is the connection between the whistleblower and 
any staffers, and how that played any role in the formulation of the 
complaint. That would all be relevant to understand how this whole 
process began.
  Now, I do want to mention something else, while I have the moment, in 
response to some things that Manager Schiff said.
  Again, the House managers come up--it seems like they keep saying the 
same thing, and we keep pointing to actual evidence and letters that 
disprove what they are saying. They come up and say that the President 
said: It is my way or the highway--blanket defiance--there is nothing 
you can do. And they say that, well, they would have accommodated if we 
were willing to participate in the accommodation process.
  The October 8 letter that Counsel for the President, who Mr. Schiff 
says acts in bad faith and called duplicitous here on the floor of the 
Senate, sent a letter on October 8 to Mr. Schiff and others explaining: 
``If the Committees wish to return to the regular order of oversight 
requests, we stand ready to engage in that process as we have in the 
past, in a manner consistent with well-established bipartisan 
constitutional protections and a respect for the separation of powers 
enshrined in our Constitution.''
  That was followed up in an October 18 letter that I mentioned before, 
a letter that specified the defects in the subpoenas that had been 
issued--not blanket defiance, not simply ``we don't cooperate''--
specifying the legal errors in the subpoenas.
  And it concluded: ``As I stated in my letter of October 8th, if the 
Committees wish to return to the regular order of oversight requests, 
we stand ready to engage in that process as we have in the past, in a 
manner consistent with well-established constitutional protections and 
a respect for the separation of powers enshrined in our Constitution.''
  The President stood ready to engage in the accommodations process. If 
anyone said: ``My way or the highway'' here, it was the House because 
the House was determined that they wanted just to get their impeachment 
process done on the fastest track they could. They didn't want to do 
any accommodation. They didn't want to do any litigation. They didn't 
want anything to slow them down. They wanted to get it done as fast as 
they could so it was finished by Christmas.
  It was a partisan charade from the beginning. It resulted in a 
partisan impeachment, with bipartisan opposition, and it is not 
something this Chamber should condone.
  The CHIEF JUSTICE. Thank you, counsel.
  Ms. ROSEN. Mr. Chief Justice.
  The CHIEF JUSTICE. The Senator from Nevada.
  Ms. ROSEN. I have a question I send to the desk for the House 
managers.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Rosen is for the House managers:

       During the President's phone call with Ambassador Sondland 
     he insisted there was no ``quid pro quo'' involving the 
     exchange of aid and a White House meeting for an 
     investigation, but he also said, according to Sondland, that 
     the stalemate over aid will continue until President Zelensky 
     announces the investigations. Isn't that the definition of 
     the exact quid pro quo that the President claimed didn't 
     exist?

  Mr. Manager SCHIFF. The short answer is yes; that is exactly what a 
quid pro quo is.
  When someone says: ``I am not going to ask you to do this,'' but then 
says: ``I am going to ask you to do this,'' that is exactly what 
happened here.
  Sondland calls the President, and the first words out of his mouth 
are ``no quid pro quo.'' Now, that is suspicious enough when someone 
blurts out there--what we would find out is a false exculpatory, but 
then the President goes on, nonetheless, to say: ``No quid pro quo.''
  At the same time, Zelensky has got to go to the mic to announce these 
investigations--that is the implication--and he should want to do it. 
So no quid pro quo over the money, but Zelensky has got to go to the 
mic.
  And if you have any question about the accuracy of that, you should 
demand to see Ambassador Taylor's notes, Tim Morrison's notes. And, of 
course, Sondland goes and tells Ukraine about this coupling of the 
money in order to get the investigations.
  Let me just, if I can, go through a little of the history of that. 
You have Rudy Giuliani and others trying to make sure the Ukrainians 
make these statements in the runup to that July phone call. This is the 
quid pro quo over the meeting. So they are trying to get the statement 
that they want. They are trying to get the announcement of the 
investigations. And around this time, prior to the call, the President 
puts a freeze on the military aid. And then you have that call, and the 
minute that Zelensky brings up the defense support and the desire to 
buy

[[Page S734]]

more Javelins, that is when the President immediately goes to the favor 
he wants.
  So the Ukrainians, at this point, know that the White House meeting 
is conditioned on getting these investigations announced, but in that 
call, the minute military aid is brought up, the President pivots to 
the favor he wants of these investigations they already know about.
  Now, after that call, the Ukrainians quickly find out about the 
freeze in aid. According to the former Deputy Foreign Minister, they 
found out within days. July 25 is the call. By the end of July, Ukraine 
finds out the aid is frozen. The Deputy Foreign Minister is told by 
Andriy Yermak: Keep this secret. We don't want this getting out. She 
had planned to come to Washington. They canceled her trip to Washington 
because they don't want this made public.
  And so, in August, there is this effort to get the investigations 
announced. That is the only priority for the President and his men. So 
the Ukrainians know the aid is withheld. They know they can't get the 
meeting. They know what the President wants, these investigations. And 
the Ukrainians, like the Americans, can add up two plus two equals 
four. But if they had any question about that, Sondland removes all 
doubt on September 1 in Warsaw, when Sondland goes over--after the 
Pence-Zelensky meeting, he goes over to Yermak, and he says that 
``until you announce these investigations, you are not getting this 
aid.''
  He makes explicit what they already knew--that not just the meeting 
but the aid itself was tied. And on September 7, Sondland tells 
Zelensky directly: The aid is tied to your doing investigations. And it 
is at that point, on September 7, when Zelensky is told by Sondland 
directly of the quid pro quo, that Zelensky finally capitulates and 
says: All right; I will make the announcement on CNN.
  And then the President is caught. The scheme is exposed. The 
President is forced to release the aid. And what does Zelensky do? He 
cancels the CNN interview because the money was forced to be released 
when the President got caught.
  But that is the chronology here. Let's make no mistake. The 
Ukrainians are sophisticated actors. As one of the witnesses said, they 
found out very shortly after the hold. The Ukrainians have good 
tradecraft. They understood very quickly about this hold.
  And what would you expect when you are fighting a war and your ally 
is withholding military aid without explanation and the only thing they 
tell you that they want from you are the announcement of these 
investigations? And if it wasn't clear enough, they hammered them over 
the head with it and told Yermak on September 1: You are not getting 
the money without announcing these investigations. They tell Zelensky 
himself on September 7: You are not getting the money without these 
investigations. And finally the resistance of this anti-corruption 
reformer, Zelensky, is broken down. He desperately needs the aid. 
Finally, the resistance is broken down: All right; I will do it. He is 
going to go on CNN.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The Senator from Kansas.
  Mr. MORAN. Mr. Chief Justice, I have a message to be sent to the 
desk, a question. It is on my behalf and on behalf of Senator Rubio, 
Senator Crapo, and Senator Risch.
  The CHIEF JUSTICE. Thank you.
  The question from Senators Moran, Crapo, Rubio, and Risch for the 
counsel for the President reads as follows:

       Impeachment and removal are dramatic and consequential 
     responses to Presidential conduct, especially in an election 
     year with a highly divided citizenry. Yet checks and balances 
     is an important constitutional principle. Does the Congress 
     have other means--such as appropriations, confirmations, and 
     oversight hearings--less damaging to our nation?

  Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for the 
question. And yes, Congress has a lot of incremental steps, a lot of 
means short of impeachment to address friction or conflicts with the 
executive branch. That was the point that I was making a moment ago 
with respect to what the Department of Justice has said in litigation 
today where the absolute immunity for senior advisers--actually, I 
think it was a different issue in that case. I beg your pardon.
  But anyway, there is a dispute in that case about information 
requests, and the point the DOJ was making there is the Constitution 
requires incremental steps where there is friction between the 
branches.
  As I mentioned the other day, friction between the branches--between 
Congress and the executive--on information requests in particular is 
part of the constitutional design. It has been with us since the first 
administration. George Washington denied requests from Congress for 
information about the negotiation of the Jay Treaty. So from the very 
beginning, there has been this friction leading to jockeying for 
position and accommodations and confrontation and leading to ways of 
working things out when Congress demands information from the executive 
and the executive asserts to protect the institutional authorities of 
the executive branch, the sphere where the executive can be able to 
keep information confidential.
  But the first step in response to that should be the accommodations 
process. And the courts have described that as constitutionally 
mandated, something that actually furthers the constitutional scheme, 
to have the branches negotiate and try to come to an arrangement that 
addresses the legitimate needs of both branches of the government.
  Part of that accommodations process is--or as it gets--as the 
confrontation continues can involve Congress exercising the levers of 
authority that it has under article I to try to put pressure on the 
executive. So, for example, appropriations, not funding the policy 
priorities of a particular administration or cutting funding on some 
policy priorities; or legislation, not passing legislation that the 
President favors or passing other legislation that the President 
doesn't favor. Or the Senate has the power not to approve nominees. As 
I am sure many of you well know, holding up nominees in committee can 
be effective in some points, putting pressure on an administration to 
get particular policies picked loose, things accomplished in a 
particular department or agency.
  All of these elements of the interplay of the branches of 
government--that is part of the constitutional design. But impeachment 
is the very last resort for the very most serious conflict where there 
is no other way to resolve it.
  So there are all of these multiple intermediate steps, and they all 
should be used. They all should be exercised in an incremental fashion. 
That is exactly what didn't happen in this case. There was no attempt 
at the accommodations. There was no attempt even to respond to the 
legal issues, the legal defects that counsel for the President and the 
departments and agencies pointed out in each of the subpoenas that were 
issued by the House committees.
  And even the issue of agency counsel--there was no attempt to try to 
negotiate on that. And that is really something that, in the past--even 
last April, with the House Committee on Oversight and Government Reform 
with Chairman Cummings, there was a dispute about that. We wouldn't 
allow a witness to go without agency counsel, and then we had a meeting 
with Chairman Cummings, and it got worked out. And it was turned into a 
transcribed interview, I think, and the--but agency counsel was 
permitted to be there. But the committee got the interview. They got to 
talk to the person. They got the information they wanted. But the 
executive branch got to have agency counsel there to protect executive 
branch interests. That is the way it is supposed to work, but there was 
no attempt at anything like that from the House in this case.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from Massachusetts.
  Mr. MARKEY. Mr. Chief Justice, I send a question to the desk for the 
House managers.
  The CHIEF JUSTICE. Thank you. Senator Markey's question for the House 
managers reads as follows:

       It has recently been reported that the Russians have hacked 
     the Ukrainian natural gas company Burisma, presumably looking 
     for information on Hunter Biden. Our intelligence community 
     has warned us that the Russians will be interfering in the 
     2020 election. If Donald Trump is acquitted of these pending 
     charges but is later found to have invited Russian or other 
     foreign interference

[[Page S735]]

     in our 2020 election, what recourse will there be for 
     Congress under the Dershowitz standard for impeachment, which 
     requires a president to have committed a statutory crime?

  Mr. Manager SCHIFF. Senator, absolutely no recourse. No recourse 
whatsoever. If, in fact, it were later to be shown that not only did 
the Russians hack Burisma to try to get dirt on the Bidens and drip, 
drip, drip it out as they did in the 2016 election--let's say it were 
found that they did so at the request of the President of the United 
States; that in one of these meetings that the President had with 
Vladimir Putin, whose contents is unknown, that the President of the 
United States asked the President of Russia to hack Burisma because he 
couldn't get the Ukrainians to do what he wanted, so now he was turning 
to the Russians to do it. Under the Dershowitz theory of the case, 
under the President's theory of the case, that is perfectly fine.
  But that is not--that is not how bad it is because it goes further 
than that. If the President went further and said to Putin in that 
secret meeting: I want you to hack Burisma. I couldn't get the 
Ukrainians to do it, and I will tell you what, if you hack Burisma and 
you get me some good stuff, then I am going to stop sending money to 
Ukraine. And I will go a step further. I am going to stop sending money 
to Ukraine so that they can't fight you in Donbass. And what is more, 
those sanctions that we imposed on you for your intervention on my 
behalf in the last election, I am going to make those go away. I am 
going to simply refuse to enforce them. I am going to call it a policy 
difference.
  That is perfectly fine under their standard. That is not an abuse of 
power. You can't say that is criminal. Yet it is akin to crime--or 
maybe it is not, but that is what an acquittal here means. It means 
that the President is free to engage in all the rest of that conduct, 
and it is perfectly fine.
  And what is the remedy that my colleagues representing the President 
say that you have to that abuse? Well, you can hold up a nominee. That 
seems wholly out of scale with the magnitude of the problem. That 
process of the appropriations or nominations is not sufficient for a 
Chief Executive Officer of the United States who will betray the 
national security for his own personal interests.
  He got on the phone with Zelensky asking for this favor the day after 
Bob Mueller testifies. What do you think he will be capable of doing 
the day after he is acquitted here, the day after he feels: I have 
dodged another bullet. I really am beyond the reach of the law. My 
Attorney General says I can't be indicted; I can't even be 
investigated. He closed the investigation into this matter before he 
even opened it. And I can't be impeached either. I have got the best of 
both worlds. I have got Bill Barr saying I can't be investigated. I 
can't be prosecuted. I can be impeached, however. That is what Bill 
Barr says. But I have got other lawyers who say I can't be impeached.
  That is a recipe for a President who is above the law. Not only is it 
not required by the Constitution--quite the contrary. The Founders 
knew, coming from a monarchy, that if they were going to give 
extraordinary powers to their new Executive, they needed an 
extraordinary constraint. They needed a constraint commensurate with 
the evil which they sought to contain. That remedy is not holding up a 
nomination. The remedy they gave for an Executive that would abuse 
their power and endanger the country, that would endanger the integrity 
of our elections, was the power of impeachment.
  As one of the experts said in the House, if this conduct isn't an 
impeachable offense, then nothing is.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The Senator from South Carolina.
  Mr. GRAHAM. Mr. Chief Justice, I send a question to the desk on 
behalf of myself and Senators Alexander, Cruz, Portman, Toomey, 
Sullivan, and Murkowski to the counsel for the President.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Graham and the other Senators is for the 
counsel for the President:

       Assuming for argument's sake that Bolton were to testify in 
     the light most favorable to the allegations contained in the 
     Articles of Impeachment, isn't it true that the allegations 
     still would not rise to the level of an impeachable offense 
     and that, therefore, for this and other reasons, his 
     testimony would add nothing to this case?

  Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for the 
question.
  Let me start by just making very clear that there was no quid pro 
quo. There was no--and there is no evidence to show that. There was not 
that sort of linkage that the House managers have suggested.
  But let me answer the question directly, which I understand to be 
assuming for the sake of argument that Ambassador Bolton would come and 
testify the way the New York Times article alleges, the way his book 
describes the conversation. Then it is correct that, even if that 
happened, even if he gave that testimony, the Articles of Impeachment 
still wouldn't rise to an impeachable offense. That is for at least two 
reasons. Let me explain that.
  The first is, on their face, the Articles of Impeachment, as they 
have been laid out by the House managers, even if you take everything 
that is alleged in them, they don't, as a matter of law, rise to the 
level of an impeachable offense because even the House managers haven't 
characterized them as involving a crime. So that is one level of the 
answer, that an impeachable offense would require a crime.

  Even going beyond that, a second level, the theory of abuse of power 
that they have alleged--put aside whether or not it is a crime, the 
thory of abuse of power that they have asserted is not something that 
conforms with the constitutional standard of high crimes and 
misdemeanors. It depends entirely on subjective intent, and it is 
subjective intent alone.
  As Professor Dershowitz explained, and as I have explained--and I 
don't mean in the more radical portion of his explanation of his 
theory, I mean just in terms of what is high crimes and misdemeanors. 
He explained that something that is based entirely on subjective intent 
is equivalent to maladministration. It is equivalent to exactly the 
standard that the Framers rejected because it is completely malleable. 
It doesn't define any real standard for an offense. It allows you to 
take any conduct that on its face is perfectly permissible, and on the 
basis of your projection of a disagreement with that conduct, a 
disagreement with the reasons for it to attribute a bad motive, to try 
to say there is a bad subjective motive for doing that and will make it 
impeachable, that doesn't conform to the constitutional standard.
  At the common law, they would call the reaction to a charge like this 
a demurrer. You demur and simply say, even if everything you say is 
true, that is not an impeachable offense under the law. And that is an 
appropriate response here. Even if everything you allege is true, even 
if John Bolton would say it is true, that is not an impeachable offense 
under the constitutional standard because the way you have tried to 
define the constitutional standard, this theory of abuse of power is 
far too malleable. It goes purely to subjective intent. It can't be 
relied upon.
  The third level of my answer is this. We have demonstrated that there 
is a legitimate public policy interest in both of the matters that were 
raised on that telephone call: the 2016 election interference and the 
Biden Burisma affair. Because there is a legitimate public policy 
interest in both of those issues, even if it were true that there was 
some connection, even if it were true that the President had suggested 
or thought that, well, maybe I should hold up this aid until they do 
something, that is perfectly permissible where there is that legitimate 
public policy interest.
  It is just the same as if there is an investigation going on. The 
President wants a foreign country to provide some assistance. It is a 
legitimate foreign policy interest to get that assistance. It is 
legitimate to use the levers of foreign policy to secure that 
assistance. So because there is a legitimate public policy interest in 
both of those issues--and I think we have demonstrated that clearly--it 
would be permissible for there to be that linkage.
  But again, I will close where I began, which is there was no such 
linkage here. I just want to make that clear. But taking for the sake 
of argument the question as phrased, even if Ambassador Bolton would 
testify to that,

[[Page S736]]

even if you assumed it were true, there is no impeachable offense 
stated in the Articles of Impeachment.
  Thank you.
  The CHIEF JUSTICE. Thank you.
  The Senator from Illinois.
  Mr. DURBIN. Mr. Chief Justice, I send a question to the desk.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Durbin for the House managers:

       Would you please respond to the answer that was just given 
     by the President's counsel?

  Mr. Manager SCHIFF. Senators, it has been a long couple of days, so 
let me be blunt about where I think we are. I think we all know what 
happened here. I think we all understand what the President did here. I 
don't think there is really much question at this point about why the 
military aid was withheld or why President Zelensky couldn't get in the 
door of the Oval Office. I don't think there is any confusion about why 
he wanted Joe Biden investigated or why he was pushing the CrowdStrike 
conspiracy theory. I don't think there is really much question about 
that. I don't think there is any question about what we could expect if 
and when John Bolton testifies, although the details of which we 
certainly don't know. I don't think there is really much question about 
that. But what is extraordinary is, although they can claim that this 
was a radical mistake or notion of Professor Dershowitz that they seem 
to be distancing themselves from right now, I guess they think they are 
accusing Dershowitz now of some maladministration in his argument of 
the defense--they are still embracing that idea.
  What they just told you admittedly in outline of A, B, and C, what 
they just told you is: accept everything the House said, accept the 
President withheld the military aid to coerce Ukraine into helping him 
cheat in the election, accept that these investigations are a sham, 
accept that he obstructed all subpoenas and witnesses, accept all of 
that. Too bad. There is nothing you can do. That is not impeachable.
  A President of the United States--this is now where we have come to 
in this moment of our history, the President of the United States can 
withhold hundreds of millions of dollars in aid that we appropriated, 
can do so in violation of the law, can do so to coerce an ally, in 
order to help him cheat in an election, and you can't do anything about 
it, except hold up a nomination. That is not impeachable.
  They can abuse their power all they want--the President, this 
President, the next President can abuse their power all they want in 
the furtherance of their reelection as long as--here is the limiting 
principle--as long as they think their reelection is in the national 
interest. Well, that is quite a constraint. That is where we have come 
now after 2\1/2\ centuries of our history.
  I think our Founders would be aghast that anyone would make that 
argument on the floor of the Senate. I think they would be aghast, 
having come out of a monarchy, having literally risked their lives, 
having taken this great gamble that people could be entrusted to run 
their own government and choose their own leaders, recognizing that we 
are not angels, setting up a system that would have ambition, 
counterambition, that we would so willingly abdicate that 
responsibility and say that a Chief Executive now has the full power to 
coerce our ally--a foreign power to intervene in our election--because 
they think it is in the national interest that they get reelected.
  Is that really what we think the Founders would have condoned or do 
we think that this is precisely the kind of character of conduct that 
they provided a remedy for? I think we know the answer to that.
  They wrote a beautiful Constitution. They understood a lot about 
human nature. They understood, as we do, that absolute power corrupts 
absolutely. And they provided a constraint, but it will only be as good 
and as strong as the men and women of this institution's willingness to 
uphold it, to not look away from the truth.
  The truth is staring us in the eyes. We know why they don't want John 
Bolton to testify. It is not because we don't really know what happened 
here. They just don't want the American people to hear it in all of its 
ugly, graphic detail. They don't want the President's National Security 
Advisor on live TV or even a nonlive deposition to say: I talked with 
the President, and he told me in no uncertain terms: John--
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  Mr. Manager SCHIFF. To be continued.
  The CHIEF JUSTICE. The Senator from Georgia.
  Mrs. LOEFFLER. I send a question to the desk on behalf of myself and 
Senators Hawley, Cruz, Perdue, Gardner, Lankford, Hoeven, Toomey, Scott 
of Florida, Portman, and Fischer.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Loeffler and the other Senators is for the 
counsel of the President:

       As reported by Politico, ``in January 1999, then-Sen Joe 
     Biden argued strongly against deposing additional witnesses 
     or seeking new evidence in a memo sent to fellow Democrats 
     ahead of Bill Clinton's impeachment trial.'' Politico reports 
     that Sen Schumer agreed with Biden. Why should the Biden rule 
     not apply here?

  Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the Senate, in a 
memorandum dated January 5, 1999, that is captioned ``Arguments in 
Support of Summary Impeachment Trial,'' Senator Biden discussed some 
history first regarding two Senate impeachment proceedings that were 
put forward in the Senate that were summarily decided. This is what he 
said:

       These two cases demonstrate that the Senate may dismiss 
     articles of impeachment without holding a full trial or 
     taking any evidence. Put another way, the Constitution does 
     not impose on the Senate the duty to hold a trial. In fact, 
     the Senate need not hold a trial even though the House wishes 
     to present evidence and hold a full trial (Blount) and the 
     elements of jurisdiction are present (English).

  He went on to say:

       In a number of previous impeachment trials, the Senate has 
     reached the judgment in its constitutional role as sole trier 
     of impeachments does not require it to take new evidence or 
     hear live witness testimony.
       This follows from the Senate's consideration of motions for 
     summary disposition in at least three trials [and it listed 
     the three trials of Judges Ritter, Claiborne, and Nixon]. In 
     each, the Senate considered a motion for summary disposition 
     on the merits and in no case did the Senate decline to 
     consider a motion for summary disposition as beyond the 
     Senate's authority or as forbidden by the Constitution.

  The Framers did not mean that this political process was to be a 
partisan process. Instead, they meant it to be political in the higher 
sense. The process was to be conducted in the way that would best 
secure the public interest or, in their phrase, the ``general 
welfare.'' That was the Biden doctrine of impeachment proceedings.
  Now, some Members in this Chamber agreed with that. Some Members that 
serve on the--as managers also agreed with that. But now the rules are 
different. The rules are different because Manager Schiff just moments 
ago did what he is now famous for and created a conversation, 
purportedly from the President of the United States, regarding Russia 
hacking of Burisma. And it is the same thing he did when he started his 
hearings.
  So this is a common practice. But if we want to look at common 
practice and common procedures, the Biden rule is one. I would like to 
address something else because we have heard it time and time again 
about two judges have decided this issue of executive privilege. I want 
to address two things very quickly.
  My very first case at the Supreme Court of the United States--and it 
was a long time ago, over 30--over 30 years ago, 33 years ago. My 
client lost in the district court. They said: Well, we will appeal to 
the Ninth Circuit Court of Appeals. We went to the Ninth Circuit Court 
of Appeals, was not so successful and did not win there either. My 
client said: Well, what do we do?
  I said: We have one option. We can file a petition for certiorari to 
the Supreme Court of the United States. Chances are they are not going 
to take the case. But at this point, it is an important issue to you, 
so why don't we proceed. My client agreed to proceed.
  A petition for certiorari was granted, and the Court reversed 9 to 0. 
And that is why you continue to utilize courts when appropriate. That 
is why you do it. And you don't rely on what a district court judge 
says.

[[Page S737]]

  The last thing I want to say, they are asking you, as a Senate body, 
to waive executive privilege on the President of the United States. 
Think about that for a moment. They are asking you to vote to determine 
or have the Chief Justice in his individual capacity as Presiding Judge 
vote to waive executive privilege as it relates to the President of the 
United States. And that is what they think is the appropriate role for 
this proceeding to continue. I think you should adopt the Biden rule.

  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from Colorado.
  Mr. BENNET. Mr. Chief Justice, thank you. I would like to send a 
question to the desk on behalf of myself and Senator Warner.
  The CHIEF JUSTICE. Thank you.
  The question from Senators Bennet and Warner is to the House 
managers:

       Mr. Sekulow said that if the Senate votes for witnesses, he 
     will call a long chain of witnesses that will greatly 
     lengthen the trial. Isn't it true that the Senate will 
     establish by majority vote which, and how many witnesses 
     there will be? Isn't it also true that prior impeachment 
     trials in the Senate commonly have heard witnesses who did 
     not testify in the House?

  Mr. Manager JEFFRIES. I thank you, Mr. Chief Justice. I thank the 
distinguished Senators for their questions.
  It certainly is the case that all we are asking the Senate to do is 
to hold a full and fair trial consistent with the Senate's 
responsibility--article I, section 3 of this Constitution: ``The Senate 
shall have the sole Power'' with respect to an impeachment trial. And 
this great institution has interpreted that, during the 15 different 
impeachment trials that have taken place during our Nation's history, 
that a full and fair trial means witnesses, because this institution, 
every time it has held a trial, has heard witnesses all 15 times, 
including in several instances where there were witnesses who did not 
testify in the House who testified in the Senate.
  Now, the point was raised earlier about Benghazi. And Trey Gowdy--he 
is a good man. I served with him. He is a very talented lawyer. I am 
sure he is pleased--the distinguished gentleman from the Palmetto 
State--that his name has been brought into this proceeding. But Trey 
Gowdy, according to one of the questions, said that the administration 
didn't cooperate. The White House, in that instance, and the State 
Department turned over tens of thousands of documents pursuant to a 
House subpoena. That is cooperation. Several witnesses appeared 
voluntarily in Benghazi, including GEN David Petraeus, former CIA 
Director; Susan Rice, who at the time was the National Security 
Advisor; Ben Rhodes, the Deputy National Security Advisor; ADM Mike 
Mullen, former Chairman of the Joint Chiefs of Staff; GEN Carter Ham, 
former commander of AFRICOM; Defense Secretary Leon Panetta, he also 
showed up; GEN Michael Flynn, former DIA Director. Who else showed up? 
The former Secretary of State, Hillary Clinton. She testified publicly 
under oath for 11 hours. That is cooperation.
  What happened in this particular instance in the House? No documents, 
no witnesses, no information, no cooperation, no negotiation, no 
reasonable accommodation--blanket defiance. That is what resulted in 
the obstruction of Congress article.
  So all we are asking for is the Senate to hold a fair trial 
consistent with past practice. At every single trial this Senate has 
held, the average number of witnesses was 33. We cannot normalize 
lawlessness. We cannot normalize corruption. We cannot normalize abuse 
of power--a fair trial.
  Lastly, of the witnesses that did testify, voluntarily showed up, 
what did they have to say? These were Trump administration witnesses.
  Ambassador Sondland, how did he characterize the shakedown scheme, 
the geopolitical shakedown at the heart of these allegations? 
Ambassador Sondland, ``quid pro quo''; Ambassador Taylor, ``crazy''; 
Dr. Fiona Hill, ``a domestic political errand''; Lieutenant Colonel 
Vindman, ``improper''; John Bolton, ``drug deal.''
  What would the Framers have said? The highest of high crimes against 
the Constitution.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The Senator from Utah.
  Mr. ROMNEY. I have a question to send to the desk.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Romney is for both parties, and I believe 
the House manager will go first:

       Do you have any evidence that anyone was directed by 
     President Trump to tell the Ukrainians that security 
     assistance was being held upon the condition of an 
     investigation into the Bidens?

  Mr. Manager SCHIFF. Senator, the evidence that is currently in the 
record--there are two people who had direct conversations with the 
President about the conditioning of aid on the performance of the 
investigations. The first was Gordon Sondland, who on September 7 had a 
conversation with the President that thereafter he relayed to Tim 
Morrison as well as Ambassador Taylor. And in the conversation that 
Ambassador Sondland described at the time, he said the President on the 
one hand said no quid pro quo but then went on to say that Zelensky has 
to announce these investigations and he should want to.
  So the President made the direct link to Ambassador Sondland. 
Ambassador Sondland then made a direct link--or had already made the 
direct link to Andriy Yermak. But the conversation with--the President 
had a conversation with Zelensky himself and conveyed what he had been 
informed by the President, that Zelensky was going to have to conduct 
these investigations. And that is when Zelensky made the commitment to 
go on CNN.
  So Ambassador Sondland has acknowledged the tie between the two. So 
did Mick Mulvaney. And I think that video is now etched in our minds 
for all of history. Trying to walk that back as he may, he was quite 
adamant when he was asked about that, and the reporter even followed up 
when he said that part of the reason why they held up the aid was the 
desire for this investigation into 2016. And the reporter said: Well, 
what you are saying is a quid pro quo. You don't get the money unless 
you do the investigation of the Democrats. And the Chief of Staff's 
answer was: ``We do that all the time; get over it.''
  So you have it from the President's own Chief of Staff. You have it 
from one of the three amigos, the President's point people. And bear in 
mind, Ambassador Sondland--of course, not a Never Trumper; a million-
dollar donor to the Trump inaugural; someone the President deputized to 
have a significant part of the Ukraine portfolio; someone who, given he 
is an EU Ambassador, if this was about burden-sharing, would have said 
this was about burden-sharing, but he didn't, of course. He said it was 
about the investigations.
  The third direct witness would be John Bolton if we are allowed to 
bring him before you.
  But there already are witnesses and evidence in the record of people 
who spoke directly to the President about this and to which the 
conditionality was made clear.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  Mr. Counsel PURPURA. Mr. Chief Justice, Senator, thank you for your 
question.
  I believe the question was, is there any evidence that anyone told--
that President Trump had anyone tell the Ukrainians directly that the 
aid was linked? I believe that was the question, and the answer in the 
House record is no. I described this on Saturday when I walked through 
it at length, and so I refer back to that presentation.
  Ambassador Sondland and Senator Johnson. Ambassador Sondland 
indicated in approximately the September 9 timeframe--as we all heard 
his statement, he asked the President. The President said: ``I want 
nothing. I want nothing. I want no quid pro quo.''
  And you heard a lot from the House managers about, go out to the 
microphones or make this--do the right thing. But I believe the 
statement was, he needs to do the right thing. He needs to do what he 
campaigned on.
  Even early, Senator Johnson--again, because Ambassador Sondland told 
Senator Johnson that there was a linkage. So Senator Johnson asked the 
President directly, and we know the answer to that. The President said: 
Was there any connection--when Senator Johnson asked if there was any 
connection between security assistance and investigations, the 
President answered: ``No way. I would never do

[[Page S738]]

that. Who told you that?'' And the answer was Sondland. And Ambassador 
Sondland had come to that presumption prior to speaking to the 
President. And we saw the montage from Ambassador Sondland about 
presumptions and assumptions and guessing and speculating and belief. 
So we also remember the montage in which Ambassador Sondland was asked: 
Did anyone on the planet tell you that the aid was linked to the 
investigations? And his answer was no.
  So in the House record before us, there is no evidence that the 
President told anyone to tell the Ukrainians that the aid was linked. 
And, in fact, the article from the Daily Beast yesterday--
  The CHIEF JUSTICE. Thank you, Mr. Counsel.
  Mr. Counsel PURPURA. Thank you, Chief Justice.
  The CHIEF JUSTICE. The Senator from Oregon.
  Mr. MERKLEY. Mr. Chief Justice, I send a question to the desk for 
Senator Schatz, for Senator Carper, and for myself.
  The CHIEF JUSTICE. Thank you.
  The question is for the House managers from Senators Merkley, Schatz, 
and Carper:

       Yesterday, Alan Dershowitz stated that a President cannot 
     be impeached for soliciting foreign interference in his re-
     election campaign if he thinks it's in the public interest. 
     The President's Counsel stated the President cannot be 
     prosecuted for committing a crime. And the President himself 
     has said ``I have the right to do whatever I want as 
     President.'' Aren't these views exactly what our Framers 
     warned about: an imperial President escaping accountability? 
     If these arguments prevail, won't future Presidents have the 
     unchecked ability to use their office to manipulate future 
     elections like corrupt foreign leaders in Russia and 
     Venezuela?

  Mr. Manager SCHIFF. Thank you for the question, Senators. Before I 
address it, I just want to complete my answer to the last question.
  On September 7, the President has a conversation with Gordon 
Sondland, and the President says: No quid pro quo, but Zelensky has got 
to go to the mic, and he should want to do so.
  This is in the context of whether the aid is being withheld in order 
to secure the investigations. After that call on the same day, Sondland 
calls Zelensky, the President of Ukraine, and says: You are not going 
to get the money unless you do the investigations.
  So you have got the communication between the President and Sondland 
and Sondland conveying the message to the Ukrainians in short 
succession. And so I think you see that the message the President gave 
to Sondland was, in fact, communicated immediately to the Ukrainians.
  Of course, Sondland went on to explain to Ambassador Taylor and to 
Tim Morrison that the President wanted Zelensky in a public box. What 
was meant by that is he wanted him to have to go out and announce 
publicly these investigations if he were going to get the money. 
Remember, Sondland explained that the President is a businessman, and 
before he gives away something, he wants to--before he signs the check, 
he wants to get the deliverable. Ambassador Taylor says: That doesn't 
make any sense. Ukraine doesn't owe him anything.
  So it was clear to everyone, including the Ukrainians, that they were 
not going to get the money unless they did the investigations that the 
President wanted. That is the connection on September 7 that makes it 
crystal clear.
  In terms of the Dershowitz argument, when coupled with a President 
who believes that, under article II, he can do whatever he wants, yes. 
I mean, this is the description of a President, not just of an imperial 
President but of an absolute President with absolute power because, if 
a President can take this action and extort one country, he can extort 
any country. If he can make a deal with the President of Venezuela or 
take an action that is antagonistic to what Congress has legislated 
with respect to that country and can violate the law in doing it to get 
help in his reelection--and I think that example that Senator King 
asked about is directly on point--then there is no limiting principle 
here, as long as the President thinks it is in the interest of his 
reelection.
  So, yes, he can ask the Israeli Prime Minister to come to the United 
States and call his opponent an anti-Semite if he wants to get U.S. 
military aid. That principle can be applied anywhere to anything, to 
the grave danger of the country.
  That is the logical extension not just to what Professor Dershowitz 
said yesterday but to what the President's counsel said today. You can 
accept every fact of the articles, and we still think it is fine and 
beyond the reach of the Constitution. The President can extort an ally 
by withholding military aid and withholding meetings. He can ask them 
to do sham investigations, even if you acknowledge the fact that they 
are a sham. In fact, they don't even have to be done; they just have to 
be announced, and there is nothing Congress can do about it. That is a 
prescription for a President with no constraint.
  The CHIEF JUSTICE. Thank you, Mr. Manager.
  The Senator from Indiana.
  Mr. BRAUN. Mr. Chief Justice, I, along with Senator Lee, send to the 
desk a question for the President's counsel.
  The CHIEF JUSTICE. Thank you.
  The question from Senators Braun and Lee is for the counsel for the 
President:

       Under Professor Dershowitz's theory, is what Joe Biden is 
     alleged to have done potentially impeachable, in contrast to 
     what has been alleged against President Trump?

  Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for the 
question.
  I believe that, under Professor Dershowitz' theory, remember, he 
tried to categorize things into three buckets. One was of purely good 
motives. One was, well, you might have some motive for your personal 
political gain, as well as public interest motives for doing something 
or intent. Then there was the third bucket of purely private pecuniary 
gain. He said that is the one, if you are doing it for purely private 
pecuniary gain, that has the problem.
  I think that would be the distinguishing factor in what is 
potentially a presence in the facts known about the Biden and Burisma 
incident because the conflict of interest that would be apparent on the 
face of the facts that are known is that there would be a personal, 
family financial interest in that situation.
  Vice President Biden is in charge of Ukraine policy. His son is 
sitting on the board of a company that is known for corruption. The 
public reports are that, apparently, the prosecutor general was 
investigating that company and its owner, the oligarch, at the time. 
Then Vice President Biden quite openly said that he leveraged $1 
billion in U.S. loan guarantees to ensure that that particular 
prosecutor was fired at that time.
  One could put together fairly easily from those known facts the 
suggestion that there was a family financial benefit coming from the 
end of that investigation because it protected the position of the 
younger Biden on the board, and that would be a purely private 
pecuniary--financial--gain. That is the third bucket that Professor 
Dershowitz was describing and the one that is necessarily problematic 
when he said that that is where there is going to be a problem, that 
that is where you would have a crime and a potentially impeachable 
offense.
  So I think that would be the distinction there. That is one that, if 
all of those facts lined up under Professor Dershowitz' categorization 
of things, would be the problematic category.
  Thank you.
  The CHIEF JUSTICE. Thank you, counsel.
  The Senator from Minnesota.
  Ms. KLOBUCHAR. Mr. Chief Justice, on behalf of myself, Senator 
Cardin, and Senator Van Hollen, I have a question for the House 
managers that I will submit to the desk.
  The CHIEF JUSTICE. Thank you.
  The question from Senator Klobuchar and Senators Cardin and Van 
Hollen is directed to the House managers:

       Could you please respond to the answer just given by the 
     President's counsel, and provide any other comments the 
     Senate would benefit from hearing before we adjourn for the 
     evening?

  Mr. Manager NADLER. Mr. Chief Justice, Members of the Senate, what we 
have just heard from the President's counsel is the usual nonsense. As 
we draw to a close tonight, there are only three things to remember.
  One, this is a trial. It is a trial, and as any 10-year-old knows, we 
should

[[Page S739]]

have witnesses. We are told we can't have witnesses because, after all, 
the House says we proved our case, as we have. So why should we need 
witnesses? Well, that is like saying that, in a bank robbery, the DA 
announces that he has proved his case. He has had all the witnesses. 
Then an eyewitness shows up, and he shouldn't be allowed to testify 
because, after all, the DA was sure he proved his case first. That is 
absurd, and any 10-year-old knows it is absurd.
  That is the President's case against witnesses, that we have had 
enough. There is always more. There aren't too many more here. The fact 
is, when there are witnesses to be asked, they should be asked.
  Second, there is only one real question in this trial. Everything 
else is a distraction--a three-card Monte game being played by the 
President's counsel--distractions. Don't look at the real question. 
Look at everything else. Everything else is irrelevant. Look at the 
whistleblower--irrelevant. Look at the House procedures--irrelevant. 
Look at Hunter Biden--irrelevant. Look at whether President Obama's 
policy was as good as or better than President Trump's policy with 
respect to Ukraine--irrelevant. Look at the Steele dossier--irrelevant.
  There is only one relevant question: Did the President abuse his 
power by violating the law to withhold military aid from a foreign 
country and extort that country into helping him--into helping his 
reelection campaign--by slandering his opponent? That is the only 
relevant question for the trial.
  The House managers have proved that question beyond any doubt.
  The one thing the House managers think the President's counsel got 
right is quoting me as saying ``beyond any doubt.'' It is, indeed, 
beyond any doubt.
  That is why all of these distractions. That is why the President's 
people are telling you to avoid witnesses--because they are afraid of 
witnesses. They know the witnesses--they know Mr. Bolton and others 
will only strengthen the case.
  And, yes, we hear: Well, if the House managers say their case is so 
strong, why do you need more witnesses? Because the truth can be 
bolstered.
  I yield back.
  The CHIEF JUSTICE. Thank you, counsel.


                 Notice of Intent to Suspend the Rules

       In accordance with rule V of the Standing Rules of the 
     Senate, Mr. Blumenthal (for himself, Mr. Brown, and Mr. 
     Durbin) hereby gives notice in writing of his intention to 
     move to suspend the following portions of the Rules of 
     Procedure and Practice in the Senate When Sitting on 
     Impeachment Trials during consideration of the question of 
     whether it shall be in order to consider and debate under the 
     impeachment rules any motion to subpoena witnesses or 
     documents in connection with the impeachment trial of Donald 
     John Trump:
       (1) The phrase ``without debate'' in Rule VII.
       (2) The following portion of Rule XX: ``, unless the Senate 
     shall direct the doors to be closed while deliberating upon 
     its decisions. A motion to close the doors may be acted upon 
     without objection, or, if objection is heard, the motion 
     shall be voted on without debate by the yeas and nays, which 
     shall be entered on the record''.
       (3) In Rule XXIV, the phrases ``without debate'', ``except 
     when the doors shall be closed for deliberation, and in that 
     case'', and ``, to be had without debate''.


                 notice of intent to suspend the rules

       In accordance with Rule V of the Standing Rules of the 
     Senate, I (for myself, Mr. Blumenthal, and Mr. Durbin) hereby 
     give notice in writing that it is my intention to move to 
     suspend the following portions of the Rules of Procedure and 
     Practice in the Senate When Sitting on Impeachment Trials 
     during the impeachment trial in the Senate of President 
     Donald John Trump:
       (1) The phrase ``without debate'' in Rule VII.
       (2) The following portion of Rule XX: ``, unless the Senate 
     shall direct the doors to be closed while deliberating upon 
     its decisions. A motion to close the doors may be acted upon 
     without objection, or, if objection is heard, the motion 
     shall be voted on without debate by the yeas and nays, which 
     shall be entered on the record''.
       (3) In Rule XXIV, the phrases ``without debate'', ``except 
     when the doors shall be closed for deliberation, and in that 
     case'', and ``, to be had without debate''.

  The CHIEF JUSTICE. The majority leader is recognized.


                   Adjournment until 1 P.M. Tomorrow

  Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent that the 
trial adjourn until 1 p.m. Friday, January 31.
  There being no objection, at 10:40 p.m., the Senate, sitting as a 
Court of Impeachment, adjourned until Friday, January 31, 2020, at 1 
p.m.

                          ____________________