January 15, 2020 - Issue: Vol. 166, No. 9 — Daily Edition116th Congress (2019 - 2020) - 2nd Session
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IMPEACHMENT; Congressional Record Vol. 166, No. 9
(Senate - January 15, 2020)
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[Pages S211-S213] From the Congressional Record Online through the Government Publishing Office [www.gpo.gov] IMPEACHMENT Mr. CORNYN. Mr. President, about 4 weeks after the House voted on the Articles of Impeachment, the House will name impeachment managers, and we will see those Impeachment Articles delivered here to the Senate, but for the impeachment managers' role in the Senate, that will conclude the House's participation in the impeachment process, and ours--the Senate's responsibilities--will begin. As I said, this vote occurs 4 weeks after the House concluded its whirlwind impeachment investigation. As I look more and more closely at this, it strikes me as a potential case of impeachment malpractice, and I will explain. Four weeks after they passed these two Articles of Impeachment, 4 weeks after they concluded the President has acted in a way to invoke our most extreme constitutional sanction that he should be removed from office, they finally will send these Impeachment Articles to us. As I look at the Impeachment Articles, I am astonished that even though we heard discussions of quid pro quo, bribery, and other crimes, the House of Representatives chose not to charge President Trump with a crime. How you then go on to prove a violation of the constitutional standard of high crimes and misdemeanors when you don't even charge the President with a crime, I am looking forward to having the impeachment managers and the President's lawyers address that. At least at first blush, it does not appear to meet the constitutional standard of bribery, treason, high crimes, and misdemeanors. President Clinton was charged with a crime--the crime of perjury-- but, here, President Trump has not been accused of a crime. The vague allegation is that he abused his office. That can mean anything to anybody. Just think, if we dumb down the standard for impeachment below the constitutional standard, what that does is it opens up the next President, who may have a House majority composed of the other party, vulnerable to charges of impeachment based on the allegation that he abused his office, even if they did not commit a high crime or misdemeanor. So impeachment becomes a political weapon, which is what this appears to be, rather than a constitutional obligation for the House and the Senate. Last month, the chairman of the House Judiciary Committee, Jerry Nadler, said on national television it was a ``rock-solid case'' against the President--``rock-solid,'' but in the moments after the House voted to impeach the President, there seemed to be a lot of doubt about whether there was sufficient evidence to convict the President of high crimes and misdemeanors; so much doubt, in fact, that it led the Speaker of the House to withhold the articles until the Senate promised to fill in the gaps left by the House's inadequate record. She sought promises from Senator McConnell, the majority leader, that the Senate would continue the House's investigation--continue the House's investigation--the one which only a few weeks prior one of her top Members said was a rock-solid case. Well, it either is or isn't. I would say that the Speaker's actions and her cold feet and her reluctance to send the Impeachment Articles here for the last month indicate to me that she is less than confident that the House has done their job. As a matter of fact, in the second Article of Impeachment, they charged the President with obstruction of Congress. Here is the factual underpinning of that allegation: Chairman Schiff would issue a subpoena to somebody who works at the White House. They would say: Well, I have to go to court to get the judge to direct me because I have conflicting obligations--a subpoena from Congress and perhaps a claim of some privilege based on confidential communications with the President. Rather than pursue that in court, which is what happened in the Clinton impeachment and what should happen in any dispute over executive privilege, Chairman Adam Schiff of the House Intelligence Committee dropped them like a hot potato, and they simply moved on in their rush to impeach without that testimony and without that evidence. So now they want the Senate to make up for their failure here by calling additional witnesses. I sometimes joke that I am a recovering lawyer and a recovering judge. I spent 20 years or more of my life either in courtrooms trying cases or presiding over those cases or reviewing the cases that had been tried based on an appellate record in the Texas Supreme Court. Our system of justice is based on an adversary system. You have the prosecutor who charges a crime--that is basically what the Articles of Impeachment are analogous to--and then you have a jury and a judge who try the case presented by the prosecution. We have a strange, even bizarre, suggestion by the Democratic leader in the Senate that somehow the jury ought to call additional witnesses before we even listen to the arguments of the President, his lawyers, and the impeachment managers who spent 12 weeks getting 100 hours or more worth of testimony from 17 different witnesses. So this discussion about whether there will be witnesses or no witnesses is kind of maddening to me. Of course, there will be witnesses--witnesses whom the impeachment managers choose to present, maybe through their sworn testimony and not live in the well of the Senate, but it is no different in terms of its legal effect, or witnesses and evidence, documentary evidence, that the President's lawyers choose to present. I think the majority leader has wisely proposed--and now it looks like 53 Senators have agreed--that we defer this whole issue of additional witnesses until after both sides have had the chance to present their case and Senators have a chance to ask questions in writing. This is going to be a very difficult process for people who make their living talking all the time, which is what Senators do. Sitting here and being forced to listen and let other people do the talking is going to be a challenge, but we will have a chance to ask questions in writing, and the Chief Justice will direct those questions to the appropriate party--either the impeachment managers or the President's lawyers--and they will attempt to answer those questions. As I look at this record more, I am beginning to wonder whether the basic [[Page S212]] facts are really disputed. So when people talk about calling additional witnesses, I think what they are more interested in is a show trial and getting cameras and media coverage rather than actually resolving any disputed facts and applying the legal standard--which is what the Constitution provides--in order to decide whether the President should be acquitted or convicted. That should be the role of the Senate sitting as a jury. The House, it seems, was under no deadline--other than an internally imposed deadline--to complete their impeachment investigation. They could have subpoenaed more witnesses. They could have waited for those subpoenas to play their way out in court and held a vote once they truly believed they had sufficient evidence to impeach the President, enough evidence that they felt confident presenting at a Senate trial. If a prosecutor were to do in a court of law what the House impeachment inquiry did, they would be justly accused of malpractice. To drop the witnesses rather than to actually go to court to try to get the testimony you need in order to support the Articles of Impeachment, that is malpractice because you know if this were a court of law, in all likelihood, the judge would summarily dismiss the case, saying: You haven't shown the evidence to support the charges that the grand jury-- in this case, the House--has made under the Articles of Impeachment. We know that rather than develop the record that would be sufficient to prove their case, Members of the House gave themselves an arbitrary deadline for their investigation and made speed their top priority. Now finding themselves with the short end of the stick, they are trying to pin their regrets and their malpractice on Members of the Senate. Our Democratic colleagues are trying to paint the picture in a way that makes it look like Senate Republicans are failing in their duties, but we will fulfill our constitutional role and duties. The only question is, did the House perform their constitutional duties in an adequate way to meet the constitutional standard? Speaker Pelosi went so far as to say that failing to allow additional witnesses would result in a ``coverup.'' I think I have heard that same charge by the Democratic leader here. I don't really understand the logic of that one. It seems like the only coverup happening is when the Speaker is covering up her caucus's shoddy and insufficient investigation. She is trying to distract from the fact that there is very little, if any, evidence to support the Articles of Impeachment. She is trying to place the blame on the Senate--a strategy you don't have to have x-ray vision to see through. The Speaker went so far as to say last Sunday that Senators will ``pay a price'' for not calling witnesses, but I think they are now beginning to take the mask off and expose their true motivation. Based on what we know now, this is no longer about 67 votes to convict and remove President Trump; this is about forcing Senators who are running for election in 2020 to take tough political votes that can be then exploited in TV ads. That seems to me to demean this whole impeachment affair. This is a thermonuclear weapon in a constitutional sense. To accuse someone of high crimes and misdemeanors and to seek to convict them in a court and remove them from office is a very serious matter, but it has been treated and is being treated like a trivial political matter, a political football. Based on the way that Speaker Pelosi and others have characterized the need for additional witnesses, you would think no one had testified before or had been deposed. But that would be to ignore the House Intelligence Committee's 298-page report--a 298-page report--detailing their impeachment inquiry. It details the actions of the committee, including dozens of subpoenas and the taking of more than 100 hours of testimony from 17 witnesses. So when somebody says this is a question of witnesses or no witnesses, I say that is not true. Those are not the facts. We already have 100 hours of testimony that could be presented in the Senate if it is actually relevant to the Articles of Impeachment, to what is charged. To be clear, all the information will be available to the Senate, and the testimony of 17 of those witnesses will likely be presented by the impeachment managers. Again, our Democratic friends in the House apparently are having a little bit of buyer's remorse, cold feet. Pick your metaphor. With 4 weeks of deep contemplation separating them from the impeachment vote they took, they no longer believe, apparently, that they have enough evidence to prove a high crime and misdemeanor, which is the constitutional standard. As for that 298-page report that they were once so proud of, apparently now they concede by their actions that it falls short of that rock-solid case they promised. So rather than taking responsibility for their own impeachment malpractice, rather than admitting that they rushed through the investigation, skipped over witnesses whom they now deem critical to the inquiry, they try now to blame the Senate and put the burden of proof on our shoulders. Well, as I said earlier, there is no question whether witnesses will be presented. Some of them will be presented who testified in the House of Representatives--the 17 witnesses who testified over 100 hours. I think the Senate, based on the vote of 53 Senators, has wisely deferred whether additional witnesses will be subpoenaed until after we have had a chance to hear from the parties to the impeachment and an opportunity by Senators to actually ask clarification questions. Leader McConnell has been consistent in saying that we wouldn't be naming witnesses before the start of the trial, in line with the precedent set by the Clinton impeachment trial. Ironically, the Democratic leader was in a position during the Clinton impeachment trial that no additional witnesses should be offered and now finds himself, ironically enough, in the opposite posture based on nothing more than the difference in the identity of the President being impeached. To reiterate, we will have a chance to hear the arguments from both sides, along with any documents they choose to present. We will move to the Senators' questions, and then we will decide whether more evidence is required. I personally am disinclined to have the jury conduct the trial by demanding additional evidence. I think that is the role of the impeachment managers and of the President's lawyers. I know fair-minded people can differ, and if 51 Senators want additional witnesses under this resolution, they will have an opportunity to have them subpoenaed. This is going to be a fair process, unlike the House process, which has been--well, I was going to say ``a three-ring circus,'' but that is not fair to the circus. We are going to have a dignified, sober, and deliberate process here, befitting the gravity of what we have been asked to decide. No one, neither the prosecution nor the defense, will be precluded from participating. As a matter of fact, they will drive the process. That is the way trials are conducted in every courthouse in America, and that is the process we should adopt here. In stark contrast to the partisan chaos that consumed the impeachment inquiry in the House, we are going to restore order, civility, and fairness. Over the last 4 weeks, there has been a whole lot of talk but not much action from our colleagues on the other side of the aisle in the House. They have taken what should be a serious and solemn responsibility in Congress and turned it into a partisan playground less than a year before the next election, when tens of millions of Americans will be voting on their choice for President of the United States. By needlessly withholding the Articles of Impeachment for 4 weeks, the Speaker has all but ensured that the Senate's impeachment trial will overlap with the Iowa caucuses. That is where our Democratic friends will choose their Presidential primary winner, starting with the Iowa caucuses. This trial could even stretch into the New Hampshire primary or the Nevada caucuses. I find it curious that the Speaker's decision will force four Senators who are actually running for President in those primary contests to leave the campaign trail in these battleground States and come back to Washington, DC, and be glued to their seats, sitting as jurors during this trial, when I am sure they would rather be out on the hustings. Rather than [[Page S213]] shaking hands with voters, they will be sitting here like the rest of us. That will be a big blow to their election. Based on what we have seen in the press, these four Senators aren't what I would call ``happy campers,'' and I don't blame them. You had better believe, though, that their competitors are celebrating. They are going to have the Iowa caucuses, perhaps, and maybe New Hampshire and Nevada all to themselves while these four Senators who are running for President in the Democratic primary will have to be here like the rest of us. So, in holding the articles for 4 weeks, the Speaker just cleared out some of the top contenders in the Presidential primaries--the early ones--and it is pretty clear that the candidate who stands the most to gain from their absence is former Vice President Biden. The politics of this impeachment circus show that it was never a serious one. A constitutional issue? Wrong. It was a political exercise from the start, meant to hurt this President and help the Speaker's party elect a Democrat in his stead in November--or at least Nancy Pelosi's friends in the Democratic Party. Over these last 4 weeks, we have been standing by, waiting to do our duty, wasting valuable time, while the Democrats in the House try to come to terms with their embarrassing and inadequate investigation, and watching them as they try to figure out how they could possibly get themselves out of this embarrassing box canyon they have walked into. I know we are all eager for the process to finally shift from the House's hands to the Senate, and I am hopeful that later this evening we will finally be free from Speaker Pelosi's manipulative games when it comes to impeachment. ____________________
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