TRIAL OF DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES; Congressional Record Vol. 166, No. 18
(Senate - January 28, 2020)

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[Pages S619-S627]
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.
  O God, You are our rock of safety. Protect us in an unsafe world. 
Guard us from those who smile but plan evil in their hearts. Use our 
Senators to bring peace and unity to our world. May they permit 
Godliness to make them bold as lions. Give them a clearer vision of 
your desires for our Nation. Remind them that they borrow their 
heartbeats from You each day. Provide them with such humility, hope, 
and courage that they will do Your will.
  Lord, grant that this impeachment trial will make our Nation 
stronger, wiser, and better.
  We pray in Your strong 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. Please be seated. If there is no objection, the 
Journal of proceedings of the trial is approved to date.


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

  
  On page S619, January 28, 2020, first column, the following 
appears: The CHIEF JUSTICE. If there is no objection, the Journal 
of proceedings of the trial is approved to date.
  
  The online Record has been corrected to read: The CHIEF JUSTICE. 
Please be seated. If there is no objection, the Journal of 
proceedings of the trial is approved to date.


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


  Without objection, it is so ordered.
  The Sergeant at Arms will make the proclamation.
  The Sergeant at Arms, Michael C. Stenger, made 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, we expect several hours of session 
today, with probably one quick break in the middle.
  The CHIEF JUSTICE. Thank you. Pursuant to the provisions of S. Res 
483, the counsel for the President have 15 hours and 33 minutes 
remaining to make the presentation of their case, though it will not be 
possible to use the remainder of that time before the end of the day.


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

  
  On page S619, January 28, 2020, second column, the following 
appears: The CHIEF JUSTICE. Pursuant to the provisions of S. Res 
483, the counsel for the President have 15 hours and 33 minutes
  
  The Record has been corrected to read: The CHIEF JUSTICE. Thank 
you. Pursuant to the provisions of S. Res 483, the counsel for the 
President have 15 hours and 33 minutes


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


  The Senate will now hear you.
  Mr. Counsel CIPOLLONE. Mr. Chief Justice, Members of the Senate, just 
to give you a very quick, brief overview of today, we do not intend to 
use much of that time today. Our goal is to be finished by dinnertime 
and well before. We will have three presentations. First will be Pat 
Philbin, Deputy White House counsel. Then, Jay Sekulow will give a 
presentation. We will take a break, if that is OK with you, Mr. Leader. 
And then, after that, I will finish with a presentation. That is our 
goal for the day. With that, I will turn it over to Pat Philbin.
  Mr. Counsel PHILBIN. Mr. Chief Justice, Members of the Senate, 
Majority Leader McConnell, Minority Leader Schumer, I would like to 
start today by making a couple of observations related to the abuse of 
power charge in the first Article of Impeachment. I wouldn't presume to 
elaborate on Professor Dershowitz' presentation from yesterday evening, 
which I thought was complete and compelling, but I wanted to add a 
couple of very specific points in support of the exposition of the 
Constitution and the impeachment clause that he set out.
  It begins from a focus on the point in the debate about the 
impeachment clause at the Constitutional Convention where 
maladministration was offered by George Mason as a grounds for 
impeachment, and James Madison responded that that was a bad idea, and 
he said: ``So vague a term will be equivalent to a tenure during the 
pleasure of the Senate.'' That evinced the deep-seated concern that 
Madison had, and it is part of the whole design of our Constitution for 
ways that can lead to exercises of arbitrary power.
  The Constitution was designed to put limits and checks on all forms 
of government power. Obviously, one of the great mechanisms for that is 
the separation of powers--the structural separation of powers in our 
Constitution. But it also comes from defining and limiting powers and 
responsibilities and a concern that vague terms, vague standards are 
themselves an opportunity for the expansion of power and the exercise 
of arbitrary power. We see that throughout the Constitution and in the 
impeachment clause as well. This is why, as Gouverneur Morris argued in 
discussing the impeachment clause, that only few offenses--he said few 
offenses--ought to be impeachable, and the cases ought to be enumerated 
and defined.
  Many terms had been included in earlier drafts, when it was narrowed 
down to treason and bribery, and there was a suggestion to include 
maladministration, which had been a ground for impeachment in English 
practice. The Framers rejected it because it was too vague; it was too 
expansive. It would allow for arbitrary exercises of power.

  We see throughout the Constitution, in terms that relate and fit in 
with the impeachment clause, the same concern. One is in the definition 
of ``treason.'' The Framers were very concerned that the English 
practice of having a vague concept of treason that was malleable and 
could be changed even after the fact to define new concepts of treason 
was dangerous. It was one of the things that they wanted to reject from 
the English system. So

[[Page S620]]

they defined in the Constitution very specifically what constituted 
treason and how it had to be proved, and then that term was 
incorporated into the impeachment clause.
  Similarly, in the rejection of maladministration, which had been an 
impeachable offense in England, the Framers rejected that because it 
was vague. A vague standard, something that is too changeable, that can 
be redefined, that can be malleable after the fact, allows for the 
arbitrary exercise of power, and that would be dangerous to give that 
power to the legislature as a power to impeach the executive.
  Similarly--and it relates again to the impeachment clause--one of the 
greatest dangers from having changeable standards that existed in the 
English system was bills of attainder. Under a bill of attainder, the 
Parliament could pass a specific law saying that a specific person had 
done something unlawful--they were being attainted--even though it 
wasn't unlawful before that.
  The Framers rejected that entire concept. In article I, section 9, 
they eliminated both bills of attainder and all ex post facto laws for 
criminal penalties at the Federal level, and they also included a 
provision to prohibit States from using bills of attainder.
  In the English system, there was a relationship, to some extent, 
between impeachment and bills of attainder because both were tools of 
the Parliament to get at officials in the government. You could impeach 
them for an established offense or you could pass a bill of attainder.
  It was because the definition of ``impeachment'' was being narrowed 
that George Mason at the debates suggested--he pointed out--that in the 
English system there is a bill of attainder. It has been a great, 
useful tool for the government, but we are eliminating that, and now we 
are getting a narrow definition of ``impeachment,'' and we ought to 
expand it to include ``maladministration.'' Madison said no, and the 
Framers agreed: We have to have enumerated and defined offenses--not a 
vague concept, not something that can be blurry and interpreted after 
the fact and that could be used, essentially, to make policy 
differences or other differences like that the subject of impeachment.
  All of the steps that the Framers took in the way they approached the 
impeachment clause were in terms of narrowing, restricting, 
constraining, and enumerating offenses and not a vague and malleable 
approach, as they had been in the English system.
  I think the minority views of Republican Members of the House 
Judiciary Committee at the time of the Nixon impeachment inquiry summed 
this up and reflected it well because they explained--and I am quoting 
from the minority views in the report:

       The whole tenor of the Framers' discussions, the whole 
     purpose of their many careful departures from English 
     impeachment practice, was in the direction of limits and of 
     standards. An impeachment power exercised without extrinsic 
     and objective standards would be tantamount to the use of 
     bills of attainder and ex post facto laws, which are 
     expressly forbidden by the Constitution and are contrary to 
     the American spirit of justice.

  What we see in the House managers' charges and their definition of 
abuse of power is exactly antithetical to the Framers' approach because 
their very premise for their abuse of power charge is that it is 
entirely based on subjective motive--not objective standards, not 
predefined offenses, but the President can do something that is 
perfectly lawful, perfectly within his authority. But if the real 
reason, as Professor Dershowitz pointed out--that is the language from 
their report--the reason in the President's mind is something that they 
ferret out and decide is wrong, that becomes impeachable, and that is 
not a standard at all. It ends up being infinitely malleable.
  It is something that I think--a telling factor that reflects how 
malleable it is and how dangerous it is in the House Judiciary's report 
because after they define their concept of abuse of power and they say 
that it involves your exercising government power for personal interest 
and not the national interest and it depends on your subjective 
motives, they realize that is infinitely malleable.
  There is not really a clear standard there, and it is violating a 
fundamental premise of the American system of justice that you have to 
have notice of what is wrong. You have to have notice of an offense. 
This is something Professor Dershowitz pointed out last night. There 
has to be a defined offense in advance. The way they try to resolve 
this is to say: Well, in addition to our definition, high crimes and 
misdemeanors involve conduct that is recognizably wrong to a reasonable 
person. And that is their kind of add-on to deal with the fact that 
they have an unconstitutionally vague standard.


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

  
  On page S620, January 28, 2020, second column, the following 
appears: There is not really a clear standard there, and it is 
violating a fundamental premise of the American system of justice 
that you have to have notice of what is wrong. You have to have 
notice of an offense. This is something Professor Derschowitz 
pointed out last . . .
  
  The online Record has been corrected to read: There is not 
really a clear standard there, and it is violating a fundamental 
premise of the American system of justice that you have to have 
notice of what is wrong. You have to have notice of an offense. 
This is something Professor Dershowitz pointed out last . . .


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


  They don't have a standard that really defines a specific offense. 
They don't have a standard that really defines, in coherent terms that 
are going to be identifiable, what the offenses are, so they just add 
on. It has to be recognizably wrong.
  They say they are doing this to resolve a tension, they call it, 
within the Constitution because they point out--and this is quoting 
from the report--``The structure of the Constitution, including its 
prohibition on bills of attainder and the ex post facto clause, implies 
that peaceable offenses should not come as a surprise.''
  That is exactly what Professor Dershowitz pointed out. And everything 
about the terms of the Constitution, speaking of an offense and a 
conviction, that crime should be tried by jury except impeachments. 
They all talk about impeachment in those criminal offense terms.


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

  
  On page S620, January 28, 2020, second column, the following 
appears: That is exactly what Professor Derschowitz pointed out. 
And everything about the terms of the Constitution, speaking of an 
offense and a . . .
  
  The online Record has been corrected to read: That is exactly 
what Professor Dershowitz pointed out. And everything about the 
terms of the Constitution, speaking of an offense and a . . .


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


  But the tension here isn't within the Constitution; it is between the 
House managers' definition, which lacks any coherent definition of an 
offense that would catch people by surprise and the Constitution. That 
is the tension that they are trying to resolve between their malleable 
standards that actually states no clear offense and the Constitution 
and the principles of justice embodied in the Constitution that 
requires some clear offense.
  I wanted to point that out in relation to the standards for 
impeachable offenses because it is another piece of the constitutional 
puzzle that fits in with the exposition that Professor Dershowitz set 
out. And it also shows an inherent flaw in the House managers' theory 
of abuse of power, regardless of whether or not one accepts the view 
that an impeachable offense has to be a defined crime. There is still 
the flaw in their definition of abuse of power; that it is so 
malleable, based on purely subjective standards, that it does not 
provide any recognizable notice of an offense. It is so malleable that 
it, in effect, recreates the offense of maladministration that the 
Framers expressly rejected, as Professor Dershowitz explained.


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

  
  On page S620, January 28, 2020, third column, the following 
appears: I wanted to point that out in relation to the standards 
for impeachable offenses because it is another piece of the 
constitutional puzzle that fits in with the exposition that 
Professor Derschowitz set out. And it also shows an inherent flaw 
in the House managers' theory of abuse of power, regardless of 
whether or not one accepts the view that an impeachable offense 
has to be a defined crime. There is still the flaw in their 
definition of abuse of power; that it is so malleable, based on 
purely subjective standards, that it does not provide any 
recognizable notice of an offense. It is so malleable that it, in 
effect, recreates the offense of maladministration that the 
Framers expressly rejected, as Professor Derschowitz explained.
  
  The online Record has been corrected to read: I wanted to point 
that out in relation to the standards for impeachable offenses 
because it is another piece of the constitutional puzzle that fits 
in with the exposition that Professor Dershowitz set out. And it 
also shows an inherent flaw in the House managers' theory of abuse 
of power, regardless of whether or not one accepts the view that 
an impeachable offense has to be a defined crime. There is still 
the flaw in their definition of abuse of power; that it is so 
malleable, based on purely subjective standards, that it does not 
provide any recognizable notice of an offense. It is so malleable 
that it, in effect, recreates the offense of maladministration 
that the Framers expressly rejected, as Professor Dershowitz 
explained.


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


  The second point that I wanted to make is, how do we tell, under the 
House managers' standard, what the illicit motive is; when is there 
illicit motive? How are we supposed to get the proof of what is inside 
the President's head because, of course, motive is inherently difficult 
to prove when you are talking about, as they conceded they are talking 
about, perfectly lawful actions, on their face, within the 
constitutional authority of the President? They want to make it 
impeachable if it is just the wrong idea inside the President's head. 
And they explain in the House Judiciary Committee report that the way 
we will tell if the President had the wrong motive is we will compare 
what he did to what staffers in the executive branch said he ought to 
do. They say that the President ``disregarded United States foreign 
policy towards Ukraine'' and that he ignored ``official'' policy that 
he had been briefed on and that ``he ignored, defied, and confounded 
every . . . agency within the Executive Branch.''
  That is not a constitutionally coherent statement. The President 
cannot defy agencies within the executive branch. Article II, section 1 
of the Constitution vests all of the Executive power in a President of 
the United States. He alone is an entire branch of government. He sets 
policy for the executive branch. He is given vast power. And, of 
course, within limits set by laws passed by Congress and within limits 
set by spending priorities--spending laws passed by Congress--he, 
within those constraints, sets the policies of the government. And in 
areas of foreign affairs, military affairs, national security--which is 
what we are dealing with in this case--in foreign affairs and head of 
state communications, he has vast powers.
  As Professor Dershowitz explained, for over two centuries, the 
President

[[Page S621]]

has been regarded as the sole organ of the Nation in foreign affairs. 
So the idea that we are going to find out when the President has a 
wrong subjective motive by comparing what he did to the recommendations 
of some interagency consensus among staffers is fundamentally anti-
constitutional. It inverts the constitutional structure, and it is also 
fundamentally anti-democratic because our system is rather unique in 
the amount of power that it gives to the President.


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

  
  On page S620, January 28, 2020, third column, the following 
appears: As Professor Derschowitz explained, for over two 
centuries, the President . . .
  
  The online Record has been corrected to read: As Professor 
Dershowitz explained, for over two centuries, the President . . .


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


  The Executive here has much more power than in a parliamentary 
system, but part of the reason that the President can have that power 
is if he is directly democratically accountable to the people. There is 
an election every 4 years to ensure that the President stays 
democratically accountable to the people. Those staffers in these 
supposed interagencies who have their meetings and make recommendations 
to the President are not accountable to the people. There is no 
democratic legitimacy or accountability to their decisions or 
recommendations. And that is why the President, as head of the 
executive branch, has the authority to actually set policies and make 
determinations, regardless of what his staffers may recommend. They are 
there to provide information and recommendations, not to set policy.

  The idea that we are going to start impeaching Presidents by deciding 
that they have illicit motives if we can show they disagree with some 
interagency consensus is fundamentally contrary to the Constitution and 
fundamentally anti-democratic. Those were the two observations I wanted 
to add to supplement specific points on Professor Dershowitz' comments 
from last night.


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

  
  On page S621, January 28, 2020, first column, the following 
appears: The idea that we are going to start impeaching Presidents 
by deciding that they have illicit motives if we can show they 
disagree with some interagency consensus is fundamentally contrary 
to the Constitution and fundamentally anti-democratic. Those were 
the two observations I wanted to add to supplement specific points 
on Professor Derschowitz' comments from last night . . .
  
  The online Record has been corrected to read: The idea that we 
are going to start impeaching Presidents by deciding that they 
have illicit motives if we can show they disagree with some 
interagency consensus is fundamentally contrary to the 
Constitution and fundamentally anti-democratic. Those were the two 
observations I wanted to add to supplement specific points on 
Professor Dershowitz' comments from last night . . .


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


  I want to shift gears and respond to a couple of points that the 
House managers have brought up that are really completely extraneous to 
this proceeding. They involve matters that are not charged in the 
Articles of Impeachment. They do not relate directly to the President 
and his actions, but they are accusations that were brought up somewhat 
recklessly, in any event, and we can't close without some response to 
them. The first has to do with the idea that somehow the White House 
and White House lawyers were involved in some sort of coverup related 
to the transcript of the July 25 call because it was stored on a highly 
classified system.
  Let me start with that. The House managers made this accusation of 
something nefarious going on. Let's see what the witnesses actually had 
to say. LTC Alexander Vindman--remember Lieutenant Colonel Vindman is 
the person who was listening in on the call and who raised a concern. 
He was the only person who went and raised a concern with NSC lawyers 
that he thought there was something improper, something wrong with the 
call. Even though he later conceded under cross-examination it was 
really a policy concern, but he thought there was something wrong.
  And he had to say: ``I do not think there was malicious intent or 
anything of that nature . . . to cover anything up.''
  He is the one who went and talked to the lawyers. He is the one whose 
complaint spurred the idea that, wait, there might be something that is 
really sensitive here. Let's make sure this is not going to leak. He 
thought there was nothing covering it up.
  His boss, Senior Director Tim Morrison, had similar testimony.
  (Text of Videotape presentation:)

       Mr. CASTOR. So to your knowledge, there was no malicious 
     intent in moving the transcript to the compartmented server?
       Mr. MORRISON. Correct.

  Mr. Counsel PHILBIN. The idea that there was some sort of coverup is 
further destroyed by the simple fact that everyone who as part of their 
job needed access to that transcript, still had access to it, including 
Lieutenant Colonel Vindman. The person who raised the complaint still 
had access to the transcript the entire time.
  This is the way Mr. Morrison's testimony explained that.
  (Text of Videotape presentation:)

       Mr. CASTOR. And even on the code word server, you had 
     access to it?
       Lieutenant Colonel VINDMAN. Yes.
       Mr. CASTOR. So at no point in time in your official duties 
     were you denied access to this information, is that correct?
       Lieutenant Colonel VINDMAN. Correct.
       Mr. CASTOR. And to your knowledge, anybody on NSC staff 
     that needed access to their official duties always was able 
     to access it, correct, people that had a need to know and a 
     need to access it?
       Mr. MORRISON. Once it was moved to the departmental system? 
     Yes.
       Mr. CASTOR. OK.

  Mr. Counsel PHILBIN. Now, Mr. Morrison testified that he recommended 
restricting access to the transcript, not because he was concerned 
there was anything improper or illegal, but he was concerned about a 
potential leak and, as he put it, how that ``would play out in 
Washington's polarized environment'' and would ``affect bipartisan 
support our Ukrainian partners are currently experiencing in 
Congress.''
  He was right to be concerned, potentially, about leaks because the 
Trump administration has faced national security leaks at an alarming 
rate. Lieutenant Colonel Vindman, himself, said concerns about leaks 
seemed justified, and it was not unusual that something would be put in 
a more restricted circulation.
  Now, what else is in the record evidence? Mr. Morrison explained his 
understanding of how the transcript ended up on that server.
  (Text of Videotape presentation:)

       Mr. MORRISON. I spoke with the NSC executive secretariat 
     staff, asked them why, and they did their research and they 
     informed me that it had been moved to the higher 
     classification system at the direction of John Eisenberg, 
     whom I then asked why. I mean, if that was the judgment he 
     made, that's not necessarily mine to question, but I didn't 
     understand it. And he essentially told me: I gave no such 
     direction. He did his own inquiry, and he represented back to 
     me that it was his understanding that it was kind of an 
     administrative error, that when he also gave direction to 
     restrict access, the executive secretariat staff also 
     understood that as an apprehension that there was something 
     in the content of the Memcon that could not exist on the 
     lower classification system.
       Mr. CASTOR. To the best of your knowledge, there was no 
     malicious intent in moving the transcript to the 
     compartmented server?
       Mr. MORRISON. Correct.

  Mr. Counsel PHILBIN. Everyone who knew something about it and who 
testified agreed there was no malicious intent. The call was still 
available to everyone who needed it as part of their job, and it 
certainly wasn't covered up or deep-sixed in some way. The President 
declassified it and made it public. So why we are even here talking 
about these accusations about a coverup, when it is a transcript that 
was preserved and made public, is somewhat absurd.
  The other point I would like to turn to--another accusation from the 
House managers--is that the whistleblower complaint was not forwarded 
to Congress. They have said that lawyers at the Department of Justice, 
this time, they accused OLC, the Office of Legal Counsel, of providing 
a bogus opinion for why the Director of National Intelligence did not 
have to advance the whistleblower's complaint to Congress.
  Manager Jeffries said that OLC opined ``without any reasonable basis 
that the Acting DNI did not have to turn over the complaint to 
Congress.''
  The way he portrayed this--now, there is a statute that says if the 
inspector general of the intelligence community finds a matter of 
urgent concern, it must be forwarded to Congress. And Manager Jeffries 
portrayed this as if the only thing to decide was were these claims 
urgent. He said: ``What can be more urgent than a sitting President 
trying to cheat in an American election by soliciting foreign 
interference?''
  Except that is not the only question. The statute doesn't just say, 
if it is urgent, you have to forward it. It talks about ``urgent 
concern'' as a defined term. If the House managers want to come and 
cast accusations that the political and career officials at the Office 
of Legal Counsel, which we all know is a very respected office of the 
Department of Justice, provides opinions for the executive branch on 
what governing law is, they should come backed up with analysis.
  So let's look at what the law actually says, and I think we have the 
slide of that.
  ``Urgent concern is defined as a serious or flagrant problem, abuse, 
violation of law relating to the funding, administration, or operation 
of an intelligence activity within the responsibility and authority of 
the Director of National Intelligence involving classified 
information.''
  So the Office of Legal Counsel was consulted by the General Counsel 
at

[[Page S622]]

the DNI's office, and they looked at this definition, and they did an 
analysis. They determined that the alleged misconduct was not an urgent 
concern within the meaning of the statute because they were not just 
talking about ``Do we think it is urgent?'' ``Do we think it is 
important?'' No. They were analyzing the law, and they looked at the 
terms of the statute.
  ``The alleged misconduct is not an urgent concern within the meaning 
of the statute because it does not concern the funding, administration, 
or operation of an intelligence activity under the authority of the 
DNI.''
  Remember, what we are talking about here is a head-of-state 
communication between the President of the United States and another 
head of state. This isn't some CIA operation overseas. This isn't the 
NSA's doing something. This isn't any intelligence activity going on 
within the intelligence community under the supervision of the DNI. It 
is the head of the executive branch, in the exercising of his 
constitutional authority, engaging in foreign relations with a foreign 
head of state.
  So, in reaching that conclusion, the Office of Legal Counsel looked 
at the statute, case law, and the legislative history. It concluded 
that this phrase ``urgent concern'' included matters relating to an 
intelligence activity subject to the DNI's supervision, but it did not 
include allegations of wrongdoing arising outside of any intelligence 
activity or outside the intelligence community itself.
  That makes sense. This statute was meant to provide for an ability of 
the inspector general's of the intelligence community, in overseeing 
the activities of the intelligence community, to receive reports about 
what was going on at intelligence agencies, those who were members of 
the intelligence community, and if there were fraud, waste, abuse--
something unlawful--in those activities. It was not meant to create an 
inspector general of the Presidency, an inspector general of the Oval 
Office, to purport to determine whether the President, in exercising 
his constitutional authorities, had done something that should be 
reported.
  This law is narrow, and it does not cover every alleged violation of 
law, the OSC explained, or other abuse that comes to the attention of a 
member of the intelligence community. Just because you are in the 
intelligence community and happen to see something else doesn't make 
this law apply. The law does not make the inspector general for the 
intelligence community responsible for investigating and reporting on 
allegations that do not involve intelligence activities or the 
intelligence community.
  Nonetheless, the President, of course, released the July 25 call 
transcript, and it was also not the end of the matter that the 
whistleblower complaint and the ICIG's letter were not sent directly to 
Congress. As the OLC explained, if the alleged complaint does not 
involve an urgent concern but if there is anything else there that you 
want to have checked out, the appropriate action is to refer the matter 
to the Department of Justice, and that is what the DNI's office did.
  They sent the ICIG's letter, with the complaint, to the Department of 
Justice, and the Department of Justice looked at it. This was all made 
public some time ago. The Department of Justice examined the exact 
allegations of the whistleblower's and the exact framing and concern 
raised by the inspector general, which had to do with the potential of, 
perhaps, a campaign finance law violation. The DOJ looked at it--looked 
at the statutes, analyzed it--and determined there was no violation, 
and it closed the matter. It announced that months ago.
  When something gets sent over to the Department of Justice to 
examine, you can't call that a coverup. Everything here was done 
correctly. The lawyers analyzed the law. The complaint was sent to the 
appropriate person for review. It was not within the statute that it 
required transmission to Congress. Everything was handled entirely 
properly.
  Again, actually extraneous to the matters before you, there is 
nothing about these two points in the Articles of Impeachment, but it 
merits a response when reckless allegations are made against those at 
the White House and at the Department of Justice.
  With that, Mr. Chief Justice, I yield my time to Mr. Sekulow.
  Mr. Counsel SEKULOW. Thank you, Mr. Chief Justice, Majority Leader 
McConnell, Democratic Leader Schumer, House managers, Members of the 
Senate.

  What we are involved in here, as we conclude, is perhaps the most 
solemn of duties under our constitutional framework--the trial of the 
leader of the free world and the duly elected President of the United 
States. It is not a game of leaks and unsourced manuscripts. That is 
politics, unfortunately, and Hamilton put impeachment in the hands of 
this body--the Senate--precisely and specifically to be above that 
fray. This is the greatest deliberative body on Earth.
  In our presentation so far, you have now heard from legal scholars 
from a variety of schools of thought, from a variety of political 
backgrounds, but they do have a common theme with a dire warning--
danger, danger, danger. To lower the bar of impeachment based on these 
Articles of Impeachment would impact the functioning of our 
constitutional Republic and the framework of that Constitution for 
generations.
  I asked you to put yourselves--in quoting Mr. Schiff's statement that 
his father made--in the shoes of someone else, and I said I would like 
you to put yourselves in the shoes of the President. I think it is 
important, as we conclude today, that we are reminded of that fact.
  The President of the United States, before he was the President, was 
under an investigation. It was called Crossfire Hurricane. It was an 
investigation, led by the FBI, the Federal Bureau of Investigation. 
James Comey eventually told the President a little bit about the 
investigation and referenced the Steele dossier. James Comey, the then-
Director of the FBI, said it was salacious and unverified--so salacious 
and unverified that they used it as a basis to obtain FISA warrants. 
Members--managers here, managers at this table right here--said that 
any discussions on the abuse from the Foreign Intelligence Surveillance 
Act, utilized to get the FISA warrants from the court, were conspiracy 
theories.
  At the very beginning, I asked you to put yourselves in the shoes of 
not just this President but of any President who would have been under 
this type of attack. FISA warrants were issued on people affiliated 
with his campaign--American citizens affiliated with the people of his 
campaign, citizens of the United States being surveilled pursuant to an 
order that has now been acknowledged by the very court that issued the 
order that it was based on a fraudulent presentation.
  In fact, evidence specifically changed--changed by the very FBI 
lawyer who was in charge of this, changed to such an extent that the 
Foreign Intelligence Surveillance Court--as I said earlier, and I will 
not repeat it again--issued two orders, saying that when this agent--
this lawyer--made these misrepresentations to the National Security 
Division, they also made a misrepresentation to a Federal court--the 
Federal court--the Foreign Intelligence Surveillance Court. This is a 
court where there are no defense witnesses and is a court where there 
is no cross-examination. It is a court based on trust. That trust was 
violated.
  Then the Director of the Federal Bureau of Investigation, James 
Comey, decides he will leak a memo of a conversation he had with the 
President of the United States. He is leaking the memo for a purpose, 
he said--to obtain the appointment of a special counsel. Lo and behold, 
a special counsel is appointed. It just so happens that that FBI 
agent--lawyer--who committed the fraud on the FISA Court, became a 
lawyer for the Mueller investigation, only to be removed because of 
political animus and bias found by the inspector general.
  Then we have a special counsel investigation. Lisa Page, Agent 
Strzok--I am not going to go into the details. You know them. They are 
not in controversy. They are uncontroverted. The facts are clear. But 
does it bother your sense of justice even a little bit--even a little 
bit--that Bob Mueller allowed the evidence on the phones of those 
agents to be wiped clean while there was an investigation going on by 
the inspector general?

[[Page S623]]

  Now, if you did it, or if you did it, Manager Schiff, or if you did 
it, Manager Jeffries, or if I did that--destroyed evidence--if anyone 
in this Chamber did this, we would be in serious trouble. Their serious 
trouble is their getting fired. Bob Mueller's explanation for it is, I 
don't know what happened. I don't know what happened. I can't recall 
conversations.
  You can't view this case in a vacuum. You are being asked--and I say 
this with the utmost respect--to remove a duly elected President of the 
United States. We have referenced the law school exams, and I love 
that. I thought there was great analysis yesterday. I appreciate all of 
that, but I want to focus today on my section, on what you are being 
asked to do. You are being asked to remove a duly elected President of 
the United States, and you are being asked to do it in an election 
year--in an election year.
  There are some of you in this Chamber right now who would rather be 
someplace else, and that is why we will be brief. I understand. You 
would rather be someplace else. Why would you rather be someplace else? 
Because you are running for President, for the nomination of your 
party. I get it, but this is a serious, deliberative situation. You are 
being asked to remove a duly elected President of the United States. 
That is what the Articles of Impeachment call for--removal.
  So we had a special counsel, and we got the report. Just for a 
moment, putting yourselves in the shoes of this President--or of any 
President who would be under this situation--you are No. 4 at the 
Department of Justice. His wife is working for the firm that is doing 
the opposition research on him and is communicating with the foreign 
former spy, Christopher Steele, who put together the dossier. It is 
being handled by Christopher Steele, through Nellie Ohr, to her 
husband--then, the fourth ranking member at the Department of Justice, 
Bruce Ohr. All of this is going on, and he doesn't want to tell 
everybody--and he has testified to this--what he is doing because he is 
afraid he might have to stop.
  Might have to stop?
  How did this happen? This is the Federal Bureau of Investigation. And 
then we ask why the President is concerned about advice he is being 
given?
  Put yourself in his shoes. Put yourself in his shoes.
  We have given you--and our approach has been to give--an overview, 
and to be very specific, to remove a duly elected President, which is 
what you are being asked to do, for essentially policy disagreements--
you heard a lot about policy, although the one that I still--it still 
troubles me, this idea that the President--it was said by several of 
the managers--is only doing these things for himself.
  Understanding what is going on in the world today, as we are here--
they raised it, by the way. I am not trying to be disrespectful. They 
raised it: This President is only doing things for himself while the 
leaders of opposing parties, by the way, at the highest level, to 
obtain peace in the Middle East--to say you are only doing that for 
yourself? I think the irony is that those statements were made while 
all of that was going on and other acts that this body has passed, some 
of them bipartisan, to help the American people.
  Policy differences--those policy differences cannot be used to 
destroy the separation of powers. House managers spoke for--I know we 
have had disagreements on the time. It was 21 hours or 23 hours. They 
spoke during their time--a lot of time--most of it attacking the 
President, policy decisions. They didn't like what they heard. They 
didn't like there was a pause on foreign aid.
  I have laid out before that there were pauses on all kinds of foreign 
aid. He is not the first President to do it.
  But the one thing I am still trying to understand from the managers' 
perspective--and maybe it is not fair to ask the managers because you 
are not the leader of the House. But remember the whole idea that this 
was a dire national security threat, a danger to our Nation, and we had 
to get this over here right away. It had to be done before Christmas. 
It was so important; it was so significant; the country was in such 
jeopardy; the jeopardy was so serious that it had to be done 
immediately.
  Let's hold on to the Articles of Impeachment for a month to see if 
the House could force the Senate to adopt rules that they wanted, which 
is not the way the Constitution is set up.
  But it was such a dire emergency, it was so critical for our Nation's 
national interests, that we could hold them for 33 days. Danger, 
danger, danger. That is politics.
  As I said, you are being called upon to remove the duly elected 
President of the United States. That is what these Articles of 
Impeachment call for.
  They never really answered the question of why they thought there was 
such a national emergency. Maybe they will during questions; I don't 
know. If there was such a national emergency, they never did explain 
why it was that they waited. They certainly didn't wait to have the 
proceedings, as my colleagues have laid out; I mean, those proceedings 
moved in record time. I suspect that we have been here more than the 
House actually considered the actual Articles of Impeachment.
  Is that the way the Constitution is supposed to work? Is that the 
design of the Constitution?
  And then their question, of course, came up yesterday on the whole 
situation with Burisma and the Bidens and that whole issue, and my 
colleague went through that a great deal, and I am not going to do 
that.
  But do we have a--we used to call this, in free speech cases, like a 
free speech zone. You could have your free speech activities over here; 
you can't have them over there. Do you we have like a Biden-free zone? 
Was that was this was? You mention someone or you are concerned about a 
company, and it is now off limits? You can impeach the President of the 
United States for asking a question? I think we significantly showed 
the question.
  I am not going to go through a detail-by-detail analysis of the 
facts, but there are some that we just have to go through.
  You heard a lot of new facts yesterday in our presentation. On 
Saturday, what we were pointing to was a very quick overview, and then 
yesterday we spent the day--and we appreciate everybody's patience on 
that--going through the facts: They showed you this, but they didn't 
show you that.
  The facts are important, though, because facts have legal 
ramifications; legal ramifications impact the decisions you make. So I 
don't take facts lightly, and I certainly don't take the constitutional 
mandate lightly, and we can't.
  The facts we demonstrated yesterday and briefly on Saturday 
demonstrate that there was, in fact, a proper governmental interest in 
the questions that the President asked and the issues that the 
President raised on that phone call.
  A phone call--now, let's--again, put your feet in the shoes of the 
President. Put yourself in the President's position. Do you think he 
thought, when he was on the call, it was him and President Zelensky he 
was talking to, and that was it? Or as I heard one commentator say it 
was--people listening in on the call--the President and 3,000 of his 
closest friends.
  Let's be realistic. The President of the United States knew, when he 
was on that call, there were a lot of people listening from our side 
and from their side. So he knew what he was saying. He said it. We 
released a transcript of it.
  The facts on the call that have been kind of the focus of all of this 
really focused on foreign policy initiatives both in Ukraine and around 
the globe. They talked about other countries. The President has been 
very concerned about other countries carrying some of the financial 
load here, not just the United States. That is a legitimate position 
for a President to take. If you disagree with it, you have the right to 
do that, but he is the President. As my colleague Deputy White House 
Counsel Philbin just said, that is the executive branch prerogative. 
That is their constitutional, appropriate role.

  So the call is well documented. There were lots of people on the 
call. The person that would be on the other end of the quid pro quo, if 
it existed, would have been President Zelensky. But President 
Zelensky--and we already laid out the other officials from Ukraine--has 
repeatedly said there was no pressure. It was a good call. They didn't 
even know there was a pause in

[[Page S624]]

the aid. All of that is well documented. I am not going to go through 
each and every one of those facts. We did that over the last several 
days.
  President Zelensky's senior adviser, Andriy Yermak, was asked if he 
ever felt there was a connection between military aid and the request 
for investigations, and he was adamant that ``We never had that 
feeling'' and ``We did not have the feeling that this aid was connected 
to any one specific issue.'' This is coming from the people who were 
receiving the aid.
  So we talk about this whole quid pro quo, and that was a big issue. 
That is how this--actually, before it became an impeachment proceeding, 
there was--as the proceedings were beginning in the House Permanent 
Select Committee on Intelligence under Chairman Schiff's role, there 
were all these discussions: Is it a quid pro quo? Was it extortion? Was 
it bribery? What was it?
  And we are clear in our position that there was no quid pro quo. But 
then yesterday, my cocounsel, Professor Alan Dershowitz, explained last 
night that these articles must be rejected--he was talking about from a 
constitutional framework--even if it was a quid pro quo, which we have 
clearly established there was not.
  And this is what he said, and I am going to quote it verbatim:

       The claim that foreign policy decisions can be deemed 
     abuses of power based on subjective opinions about mixed or 
     sole motives that the President was interested only in 
     helping himself demonstrate the dangers of employing the 
     vague, subjective, and politically malleable phrase ``abuse 
     of power'' as a constitutionally permissible criteria for the 
     removal of a President.

  He went on to say:

       Now, it follows from this that if a President--any 
     President--were to have done what ``The Times'' reported 
     about the content of John Bolton's manuscript, that would not 
     constitute an impeachable offense.

  I am quoting exactly from Professor Dershowitz. He said:

       Let me repeat it. Nothing in the Bolton revelations, even 
     if true--

  Even if true.

     would rise to the level of abuse of power or an impeachable 
     offense. That is clear from history. That is clear from the 
     language of the Constitution. You cannot turn conduct that is 
     not impeachable into impeachable conduct simply by using 
     words like ``quid pro quo'' and ``personal benefit.''
       It is inconceivable that the Framers would have intended so 
     politically loaded and promiscuously deployed a term as 
     ``abuse of power'' to be weaponized--

  Again, Professor Dershowitz.

     as a tool of impeachment. It is precisely the kind of vague, 
     open-ended, and subjective term Framers feared and rejected.

  Now, to be specific: You cannot impeach a President on an unsourced 
allegation. But what Professor Dershowitz was saying is that even if 
everything in there is true, it constitutionally doesn't rise to that 
level.
  But I want to be clear on this because there is a lot of speculation 
out there with regard to what John Bolton has said, which referenced a 
number of individuals. We will start with the President. Here is what 
the President said in response to that New York Times piece:

       I NEVER told John Bolton that the aid to Ukraine was tied 
     to investigations into Democrats, including the Bidens. In 
     fact, he never complained about this at the time of his very 
     public termination. If John Bolton said this, it was only to 
     sell a book.

  The Department of Justice.

       While the Department of Justice has not reviewed Mr. 
     Bolton's manuscript, the New York Times' account of his 
     conversation grossly mischaracterizes what Attorney General 
     Barr and Bolton discussed.
       There was no discussion of ``personal favors'' or ``undue 
     influence'' on investigations, nor did Attorney General Barr 
     state that the President's conversations with foreign leaders 
     were improper.

  The Vice President's chief of staff issued a statement:

       In every conversation with the President and the Vice 
     President, in preparation for our trip to Poland--

  Remember, that was the trip that was being planned for the meeting 
with President Zelensky.

     the President consistently expressed his frustration that the 
     United States was bearing the lion's share of responsibility 
     for aid to Ukraine and that European nations weren't doing 
     their part.
       The President also expressed concerns about corruption in 
     Ukraine, and at no time did I hear him tie Ukraine aid to 
     investigations into the Biden family or Burisma.

  That was the response responding to an unpublished manuscript that 
maybe some reporters have an idea of maybe what it says. I mean, that 
is what the evidence--if you want to call that evidence. I don't know 
what you call that. I would call it inadmissible, but that is what it 
is.
  To argue that the President is not acting in our national interest 
and is violating his oath of office, which the managers have put 
forward, is wrong based on the facts and the way the Constitution is 
designed.
  When you look at the fullness of the record of their witnesses--their 
witnesses--the witnesses' statements, the transcripts--there is one 
thing that emerged: There is no violation of law. There is no violation 
of the Constitution. There is a disagreement on policy decisions.
  Most of those who spoke at your hearings did not like the President's 
policy. That is why we have elections. That is where policy 
differentials and differences are discussed. But to have a removal of a 
duly elected President based on policy differences is not what the 
Framers intended.
  If you lower the bar that way, danger, danger, danger, because the 
next President or the one after that--he or she would be held to that 
same standard. I hope not. I pray that is not what happens, not just 
for the sake of my client but for the Constitution. Professor 
Dershowitz gave a list of Presidents, from Washington to where we are 
today, who, under the standard that they are proposing, could be 
subject to abuse of power or obstruction of Congress.
  We know that this is not about a President pausing aid to Ukraine. It 
is really not about the law. It is about a lot of attempts on policy 
disagreements that are not being debated here. My goodness, how much 
time--how much time has been spent in the House of Representatives 
hoping? They were hoping that the Mueller probe would result in--I 
mean, I am not going to play all the--I was thinking about it, playing 
all the clips from all the commentators the day after Bob Mueller 
testified. Bob Mueller was unable to answer, under his examination, 
basic and fundamental questions. He had to correct himself, actually. 
He had to correct himself before the Senate for something that he said 
before the House. So that is what the President has been living with.
  And we are today arguing about what? A phone call to Ukraine or 
Ukraine aid being held or a question about corruption or a question 
about corruption that happened to involve a high-profile public figure? 
Is that what this is? Is that where we are?
  Then what do we find out? The aid was released. It was released in an 
orderly fashion. The reform President, President Zelensky, wins, but 
there was a question on whether his party would take the Parliament. It 
did. They worked late into the evening with the desire to put forward 
reforms. So everybody was waiting, including--and you heard the 
testimony from, I will say, their witnesses--you heard the testimony--
everybody was concerned about Ukraine. Everybody was concerned about 
whether these reforms could actually take place. Everybody was 
concerned about it. So you hold back.
  It didn't affect anything that was going on in the field. We heard 
Mr. Crow worrying about the soldiers. I understand that, I appreciate 
that, but none of that aid was affecting what was going on in the 
battlefield right then or for the next 4 months because it was future 
aid. Are we having an impeachment proceeding because aid came out 3 
weeks before the end of the fiscal year, for a 6-minute phone call? You 
boil it down, that is what this is.
  It is interesting to me that everybody said: Well, the aid was 
finally released September 11 only because of the committee and the 
whistleblower we have never seen. Mr. Philbin dealt with that in great 
detail. I am not going to go over that again. But, you know, the new 
high court, the anti-corruption court, wasn't established and did not 
sit until September 5, 2019. So while the President of Ukraine was 
trying to get reforms put in place, the court that was going to decide 
corruption issues was not set until September 5.
  I want you to think about this for a moment too. They needed a high 
court of corruption for corruption. Think

[[Page S625]]

about that for a moment. Now, it is good that they recognized it, but 
remember when I said the other day that you don't wave a magic wand and 
now Ukraine doesn't have a corruption problem? The high court of 
corruption, which they have to have because it is not just past 
corruption--they are concerned about ongoing corruption issues.
  You could put all of your witnesses back under oath in the next 
hearings you will have when this is all over, and you are going to be 
back in the House and you are going to be doing this again, putting 
them all back under oath, and ask them, Mr. Schiff, is there a problem 
with corruption in Ukraine? If they get up there and say: No. 
Everything is great now, hallelujah--but I suspect they are going to 
say: We are working really hard on it. But this idea that it has just 
vanished and now we are back into ``everything is fine'' is absurd.
  Mr. Morrison testified that while the developments were taking place, 
the Vice President also met with President Zelensky in Warsaw. That was 
the meeting of September 1--the one, by the way, where the Vice 
President's Office said in response to this New York Times article that 
nobody told him about aid being held or linked to investigations.
  Are you going to stop--are you going to allow proceedings on 
impeachment to go from a New York Times report about someone that says 
what they hear is in a manuscript? Is that where we are? I don't think 
so. I hope not.

  What did Morrison say? You heard firsthand that the new Ukraine 
administration was taking concrete steps to address corruption. That is 
good. He advised the President that the relationship with Zelensky is 
one that could be trusted. Good.
  President Zelensky also agreed with Vice President Pence--this is 
interesting--that the Europeans should be doing more and related to 
Vice President Pence conversations he had been having with European 
leaders about getting them to do more.
  In sum, the President raised two issues he was concerned with to get 
them addressed.
  Now I have already gone over--again, this is just the closing moments 
here of our portion of this proceeding. Aid was withheld or paused, put 
on a pause button not just for Ukraine but for Afghanistan, South 
Korea, El Salvador, Guatemala, Lebanon, and Pakistan. I am sure I am 
leaving countries out. But do you think the American people are 
concerned if the President says: You know, before we give a country, I 
don't know, $550 million--some countries, only $400 million--we would 
like to know what they are doing with it. You are supposed to be the 
guardians of the trust here. It is the taxpayers' money we are 
spending.
  There was a lot of testimony from Dr. Fiona Hill, John Bolton's 
deputy. Here is what she said about aid that was being held. This was 
her testimony: There was a freeze put on all kinds of aid and 
assistance because it was in the process at the time of an awful lot of 
reviews of foreign assistance.
  Oh, you mean there was a policy within the administration to review 
foreign assistance and how we are doing it because we spend a lot of 
money?
  By the way, I am not complaining about the money. I don't think 
anybody doesn't want to help. But we do need to know what is going on, 
and those are valid and important questions.
  Manager Crow told you that the President's Ukraine policy was not 
strong against Russia, but Ambassador Yovanovitch stated the exact 
opposite. She said in her deposition that our country's Ukraine policy 
under President Trump actually--her words--``got stronger'' than it was 
under President Obama.
  So, again, policy disagreements. Disagreements on approach. Have 
elections. That is what we do in our Republic.
  For 3 long days, House managers presented their case by selectively 
showing parts of testimony. Good lawyers show parts of testimony. You 
don't have to show the whole thing. But other good lawyers show the 
rest of the testimony. And that is what we sought to do to give you a 
fuller view of what we saw as the glaring omissions by my colleagues, 
the House managers.
  The legal issues here are the constitutional ones, and I have been I 
think pretty clear over the last week, starting when we had the motions 
arguments, in my concern about the constitutional obligations that we 
are operating under. I have been critical of Manager Nadler's 
``executive privilege and other nonsense.''
  I want you to look at it this way. Take out executive privilege; 
First Amendment free speech and other nonsense; the free exercise of 
religion and other nonsense; the right to due process and other 
nonsense; the right of equal protection under the law and other 
nonsense. You can't start doing that. You would not do that. No 
administration has done that, in fact, since the first administration, 
George Washington. They wanted information. He thought it was 
privileged. He said it was executive privilege.
  Let's not start calling constitutional rights ``other nonsense'' and 
lumping them together. This is from the House of Representatives that 
actually believes the attorney/client privilege doesn't apply, which 
should scare every lawyer in Washington, DC, but more scary for their 
clients. They say that in writing, in letters. They don't hide it.
  I would ask them--I am not going to; it is not my privilege to do 
that--do you really believe that? Do you really believe that the 
attorney/client privilege does not apply in a congressional hearing? Do 
you really believe that? Because if that is what is believed or 
implied, then there is no attorney/client privilege--or is that the 
attorney/client privilege and other nonsense? Danger, danger, danger.
  We believe that article I fails constitutionally. The President has 
constitutional authority to engage in and conduct foreign policy and 
foreign affairs. It is our position legally--the President at all times 
acted with perfect legal authority, inquired of matters in our national 
interest, and, having received assurances of those matters, continued 
his policy that his administration put forward of what really is 
unprecedented support for Ukraine, including the delivery of a military 
aid package that was denied to the Ukrainians by the prior 
administration.
  Some of the managers right here, my colleagues at the other table, 
voted in favor of those--wanted Javelin anti-tank missiles for Ukraine. 
Some of the Members here did not, didn't want to do that, voted against 
that. I am glad we gave it to them. I am glad we allowed them to 
purchase Javelins.
  I never served in the military. I have tremendous, tremendous respect 
for the men and women who protect our freedom. I have tremendous 
respect for what they are doing and continue to do.
  This President actually allowed the Javelins to go. Some of you liked 
that idea; some of you did not. Policy difference. Were you going to 
impeach President Obama because he did not give them lethal aid? No. 
Nor should you. You should not do that. It is a policy difference. 
Policy differences do not rise to the level of constitutionally 
mandated or constitutional applications for removal from office. It is 
policy differences.
  By the way, it is not just on lethal weapons; President Obama, as I 
said, withheld aid. He had the right to do that. You have allowed him 
to do that.

  Oh, but we don't like that this President did it, so the rules 
change. So this President's rules are different than--he has a 
different set of standards he has to apply than what you allowed the 
previous administrations to apply. And you know what--or the future 
administrations to apply. That is the problem with these articles.
  We have laid out, I believe, a compelling case on what the 
Constitution requires. When they were in the House of Representatives 
putting this together, did they go through a constitutionally mandated 
accommodation process to see if there was a way to come up with 
something? No, they did not. Did they run to court? No. And the one 
time it was about to happen, they ran the other way.
  Separation of powers means something. It is not separation of powers 
and other nonsense. If we have reached now, at this very moment in the 
history of our Republic, a bar of impeachment because you don't like 
the President's policies or you don't like the

[[Page S626]]

way he undertook those policies--because we heard a lot about policy. 
If partisan impeachment is now the rule of the day, which these Members 
and Members of this Senate said should never be the rule of the day--my 
goodness, they said it--some of them--5 months ago, but then we had the 
national emergency, a phone call. It is an emergency, except we will 
just wait.
  But if partisan impeachment based on policy disagreements, which is 
what this is, and personal presumptions or newspaper reports and 
allegations in an unsourced--maybe this is in somebody's book who is no 
longer at the White House--if that becomes the new norm, future 
Presidents, Democrats and Republicans, will be paralyzed the moment 
they are elected, before they can even take the oath of office. The bar 
for impeachment cannot be set this low.
  Majority Leader McConnell, Democratic Leader Schumer, House managers, 
Members of the Senate--danger, danger, danger. These articles must be 
rejected. The Constitution requires it. Justice demands it.
  We would ask the majority leader for a short recess, if we can, about 
15 minutes.
  The CHIEF JUSTICE. The majority leader is recognized.


                                 Recess

  Mr. McCONNELL. Mr. Chief Justice, we will be in recess for 15 
minutes.
  There being no objection, at 2:18 p.m., the Senate, sitting as a 
Court of Impeachment, recessed until 2:44 p.m.; whereupon the Senate 
reassembled when called to order by the Chief Justice.
  The CHIEF JUSTICE. The Senate will come to order. Please be seated.
  Mr. Cipollone.
  Mr. Counsel CIPOLLONE. I thank Mr. Chief Justice and Members of the 
Senate.
  Well, I had kind of a lengthy presentation prepared, but I think you 
have heard a lot from our side, and I think we have made our case.
  I just want to leave you with a couple of points. First of all, I 
thank the majority leader and thank Democratic Leader Schumer and all 
of you for the privilege of speaking on the floor of the Senate and for 
your time and attention. We really appreciate it.
  We made three basic points. One, all you need in this case is the 
Constitution and your common sense. If you just look at the Articles of 
Impeachment, the Articles of Impeachment fall far short of any 
constitutional standard, and they are dangerous. If you look to the 
words from the past that I think are instructive, as I said last night, 
they are instructive because they were right then and they are right 
now, and I will leave you with some of those words.
  (Text of Videotape presentation:)

       Mr. NADLER. There must never be a narrowly voted 
     impeachment or an impeachment supported by one of our major 
     political parties and opposed by the other. Such an 
     impeachment will lack legitimacy, will produce divisiveness 
     and bitterness in our politics for years to come, and will 
     call into question the very legitimacy of our political 
     institutions.
       Ms. LOFGREN. 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.
       Mr. MARKEY. This is a constitutional amendment that we are 
     debating, not an impeachment resolution. The Republicans are 
     crossing out the impeachment standard of high crimes and 
     misdemeanors, and they are inserting the words ``any crime or 
     misdemeanor.'' We are permitting a constitutional coup d'etat 
     which will haunt this body and our country forever.
       Mr. MENENDEZ. I warn my colleagues that you will reap the 
     bitter harvest of the unfair partisan seeds you sow today. 
     The constitutional provision for impeachment is a way to 
     protect our government and our citizens, not another weapon 
     in the political arsenal.
       Mr. SCHUMER. I suspect history will show that we have 
     lowered the bar on impeachment so much we have broken the 
     seal on this extreme penalty so cavalierly that it will be 
     used as a routine tool to fight political battles. My fear is 
     that when a Republican wins the White House Democrats will 
     demand payback.

  Mr. Counsel CIPOLLONE. You were right, but I am sorry to say you were 
also prophetic, and I think I couldn't say it better myself, so I will 
not. You know what the right answer is in your heart. You know what the 
right answer is for our country. You know what the right answer is for 
the American people.
  What they are asking you to do is to throw out a successful President 
on the eve of an election with no basis and in violation of the 
Constitution. It would dangerously change our country and weaken--
weaken--forever all of our democratic institutions. You all know that 
is not in the interest of the American people. Why not trust the 
American people with this decision? Why tear up their ballots? Why tear 
up every ballot across this country? You can't do that. You know you 
can't do that.
  So I ask you to defend our Constitution, to defend fundamental 
fairness, to defend basic due process rights, but most importantly--
most importantly--to respect and defend the sacred right of every 
American to vote and to choose their President. The election is only 
months away. The American people are entitled to choose their 
President.
  Overturning the last election and massively interfering with the 
upcoming one would cause serious and lasting damage to the people of 
the United States and to our great country. The Senate cannot allow 
this to happen. It is time for this to end, here and now. So we urge 
the Senate to reject these Articles of Impeachment for all of the 
reasons we have given you. You know them all. I don't need to repeat 
them.
  They have repeatedly said, over and over again, a quote from Benjamin 
Franklin: ``It is a republic, if you can keep it.'' And every time I 
heard it, I said to myself: It is a republic, if they let us keep it.
  I have every confidence--every confidence--in your wisdom. You will 
do the only thing you can do, what you must do, what the Constitution 
compels you to do: Reject these Articles of Impeachment for our country 
and for the American people.
  It will show that you put the Constitution above partisanship. It 
will show that we can come together on both sides of the aisle and end 
the era of impeachment for good. You know it should end. You know it 
should end. It will allow you all to spend all of your energy and all 
of your enormous talent and all of your resources on doing what the 
American people sent you here to do: to work together, to work with the 
President, to solve their problems.
  So this should end now, as quickly as possible. Thank you again for 
your attention. I look forward to answering your questions.
  With that, that ends our presentation. Thank you very much.
  The CHIEF JUSTICE. The majority leader is recognized.


                      Unanimous Consent Agreement

  Mr. McCONNELL. Mr. Chief Justice, I have reached an agreement with 
the Democratic leader on how to proceed during the question period. 
Therefore, I ask unanimous consent that the question period for 
Senators start when the Senate reconvenes on Wednesday; further, that 
the questions alternate between the majority and minority sides for up 
to 8 hours during that session of the Senate; and finally, that on 
Thursday, the Senate resume time for Senators' questions, alternating 
between sides for up to 8 hours during that session of the Senate.
  The CHIEF JUSTICE. Is there objection? Without objection, it is so 
ordered.
  Mr. McCONNELL. Mr. Chief Justice, we will complete the question 
period over the next 2 days. I remind Senators that their questions 
must be in writing and will be submitted to the Chief Justice. During 
the question period of the Clinton trial, Senators were thoughtful and 
brief with their questions, and the managers and counsel were succinct 
in their answers. I hope we can follow both of these examples during 
this time.
  The CHIEF JUSTICE. During the impeachment trial of President Clinton, 
Chief Justice Rehnquist advised ``counsel on both sides that the Chair 
will operate on a rebuttable presumption that each question can be 
fully and fairly answered in 5 minutes or less.'' The transcript 
indicates that the statement was met with ``laughter.''

[[Page S627]]

  Nonetheless, managers and counsel generally limited their responses 
accordingly. I think the late Chief's time limit was a good one and 
would ask both sides to abide by it.

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