January 3, 2020 - Issue: Vol. 165, No. 211 — Daily Edition116th Congress (2019 - 2020) - 1st Session
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IMPEACHMENT; Congressional Record Vol. 166, No. 1
(Senate - January 03, 2020)
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[Pages S4-S7] From the Congressional Record Online through the Government Publishing Office [www.gpo.gov] IMPEACHMENT Mr. SCHUMER. Mr. President, the Senate begins this new session of Congress preparing to do something that has happened only twice before in American history: serving as a court of impeachment in a trial of the President of the United States. President Donald Trump stands accused by the House of Representatives of committing one of the offenses the Founding Fathers most feared when it came to the stability of the Republic: abusing the powers of his office for personal gain and soliciting the interference of a foreign power in our elections to benefit himself. The House has also charged the President with obstructing Congress in the investigation into those matters, the consequence of an unprecedented blockade of relevant witnesses and documents--flatly denying the legislative branch's constitutional authority to provide oversight of the Executive. As all eyes turn to the Senate, the question before us is, Will we fulfill our duty to conduct a fair impeachment trial of the President of the United States or will we not? That is the most pressing question facing the Senate at the outset of this second session of the 116th Congress. Will we conduct a fair trial that examines all the facts or not? The country just saw Senator McConnell's answer to that question. His answer is no. Instead of trying to find the truth, he is still using the same feeble talking points he was using last December. The country just saw how the Republican leader views his responsibility at this pivotal moment in our Nation's history. The Republican leader prefers finger-pointing and name-calling to avoid answering the looming question: Why shouldn't the Senate call witnesses? The Republican leader hasn't given one good reason why there shouldn't be relevant witnesses or relevant documents. We did not hear one from Leader McConnell today or any day. [[Page S5]] Once again, Leader McConnell tried to bury his audience under an avalanche of partisan recriminations and misleading references to precedents. There is only one precedent that matters here: that never, never in the history of our country has there been an impeachment trial of the President in which the Senate was denied the ability to hear from witnesses. Let me repeat that. That is the salient fact here. There is only one precedent that matters: There has never, never in the history of our country been an impeachment trial of the President in which the Senate was denied the ability to hear from witnesses. Yet the Republican leader seems intent on violating that precedent and denying critical evidence to this body and to the American people. Leader McConnell has been clear and vocal that he has no intention to be impartial in this process. Leader McConnell reminds us today and previous days that rather than acting like a judge and a juror, he intends to act as the executioner of a fair trial. Thankfully, the rules of the impeachment trial will be determined by the majority of Senators in this Chamber, not by the Republican leader alone. The crux of the issue still is whether the Senate will hear testimony from witnesses and receive documentary evidence directly relevant to the charges against the President. Since Congress recessed for the holidays, there have been several events that have significantly bolstered my argument for four specific witnesses and specific categories of documents. Nothing--nothing--in that time has bolstered Leader McConnell's argument that there shouldn't be relevant witnesses or documents. On December 21, the Center for Public Integrity obtained emails through a Freedom of Information Act request that showed that Michael Duffey, a top OMB official and one of the four witnesses I have requested, asked the Defense Department to ``hold off'' on sending military aid to Ukraine 91 minutes after President Trump's July phone call with Ukrainian President Zelensky. On December 29, the New York Times' report included several revelations about the extent of Chief of Staff Mulvaney's involvement in the delayed military assistance; about the efforts by lawyers at OMB, Justice, and the White House to create legal justifications for the delay in assistance; and about the depth of opposition to and indeed alarm about the delay in military assistance from parts of the administration, particularly the Pentagon. Then, just yesterday, there was a new report about a trove of newly unredacted emails that further exposed the serious concerns raised by Trump administration officials about the propriety and legality of the President's decision to delay military assistance to Ukraine. One of those emails released yesterday was from Michael Duffey--one of the witnesses we have requested--to the Pentagon comptroller, and it reads: ``Clear direction from POTUS [the President] to continue the hold.'' Clear direction from the President to continue the hold is what Duffey wrote. What constituted ``clear direction''? Did Michael Duffey get an order from the President, or did someone like Mr. Mulvaney get an order from the President that was passed on to Mr. Duffey? Were there discussions by administration officials about covering up the reasons for the President directing the delay in military assistance? These are questions that can only be answered by examination of the documentary evidence and by the testimony of key Trump administration officials, under oath, in a Senate trial. These developments are a devastating blow to Leader McConnell's push to have a trial without the documents and witnesses we have requested. Each new revelation mounts additional pressure on the Members of this Chamber to seek the whole truth. With these new emails, we are getting certain portions of the truth. We need the whole truth. For example, much of the evidence that was obtained by the recent FOIA requests has been heavily redacted. Here is an email chain between officials at the Pentagon regarding the Politico article that first revealed that the Trump administration was delaying military assistance to Ukraine. It is completely redacted. Every word crossed out. Not available. Can't be seen. Here is another email, with the subject line ``apportionment,'' between officials at OMB and the Pentagon, completely redacted. None of the words can be seen at all. We know now that some of these redactions were covered up--but only some of them. Why did they redact the sections they redacted? Who ordered the redactions? Why are they covering it up? What are they hiding? These questions must be asked. When you are accused of something, you don't suppress evidence that will exonerate you. The fact that the administration is going to such lengths to prevent such emails from coming out is extraordinarily telling. It seems like they themselves feel they are guilty. Getting the full documentary record would undoubtedly shed light on the issues at hand. These were senior Trump officials discussing the delay in military assistance to Ukraine, who ordered it, why it was ordered, whether or not it was legal, and how it was connected to the effort to pressure Ukraine into announcing investigations regarding a political rival of the President. And these emails represent just a sliver of the documentary evidence that exists in this case. There was an exceedingly strong case to call witnesses and request documents before the Senate went out of session for the Christmas break. In the short time since, that case has gotten stronger and remarkably so. We are not asking for critics of the President to serve as witnesses in the trial. We are asking only that the President's men, his top advisers, tell their side of the story, and Leader McConnell, once again, has been unable to make one argument--one single argument--as to why these witnesses and these documents should not be part of a trial. I want to respond to one suggestion by Leader McConnell, that we follow the 1999 example of beginning the impeachment first and then deciding on witnesses and documents at a later date. First, to hear Leader McConnell say ``no witnesses now but maybe some later'' is just another indication that he has no argument against witnesses and documents on the merits. Will Leader McConnell commit to witnesses and documents now and discuss timing later? Second, Leader McConnell's comparisons to 1999 are hopelessly flawed and inaccurate. There were witnesses in 1999, Leader McConnell. You want the precedent of 1999. There were witnesses, as there were in every single impeachment trial of the President in history. It would be a break in precedent for there not to be witnesses. Third, there was even a greater rationale for witnesses in the Clinton trial. In 1999, the witnesses in question had already testified under oath extensively, and there were also bipartisan concerns about the suitability of the subject matter for the floor of the Senate. There is no analogy to today's situation. The witnesses we have requested never testified under oath, and the documents we have requested have not been produced. Fourth, we have a tradition in America of a fair and speedy trial. That is why we requested only the relevant information, up front, so that the trial can truly be speedy and fair. It makes no sense and, in fact, it is a ruse to suggest that the Senate wait until the end of the trial to settle the hardest question, when it might take time for witnesses to prepare testimony and for the Senate to review new documentary evidence. We can and should begin that process now and ensure that the trial is informed by the facts and does not suffer unnecessary delays. Fifth and, finally, when Leader McConnell suggests that we have both sides present their arguments and then deal with witnesses, he is essentially proposing to conduct a whole trial and, then, once the trial is basically over, consider the question of evidence. That makes no sense. That is ``Alice in Wonderland'' logic. The trial must be informed by the evidence, not the other way around. The House managers should be allowed to present all of the evidence to make their case, not make their case and, then, afterward, ask for evidence we know is out there. [[Page S6]] If we don't get a commitment up front that the House managers will be able to call witnesses as part of their case, the Senate will act as little more than a nationally televised meeting of the mock trial club. If we leave the witness question and documents until after all of the presentations are complete, Leader McConnell will argue that the Senate has heard enough and we shouldn't prolong the trial any longer. At that point, you can be sure he will label anyone who wants to subpoena evidence as a partisan who wants to drag the whole affair out. I know this because he has already told us what his position will be. This is not a mystery. ``After we've heard the arguments,'' Leader McConnell said on FOX News, ``we ought to vote and move on.'' Does that sound like someone who, in good faith, intends to have the Senate reasonably consider witnesses at a later date? No, it does not. Leader McConnell's proposal to vote on witnesses and documents later is nothing more than a poorly disguised trap. ``After we've heard the arguments,'' Leader McConnell said, ``we ought to vote and move on.'' All of my fellow Senators--Democrat and Republican--should take stock of the Leader's words and remember the commitment he made on national television to take his cues from the White House. I say to the Chair, it may feel like we are no closer to establishing the rules for a Senate trial than when we last met, but the question-- the vital question--of whether or not we have a fair trial ultimately rests with a majority of the Senators in this Chamber. The President faces gravely serious charges--abuse of power, abuse of his public trust, soliciting the interference of a foreign power in our elections, unprecedented obstruction of Congress--and, if convicted, the President faces the most severe punishment our Constitution imagines. The Framers gave us--this Chamber, the U.S. Senate--the sole power to discharge this most difficult and somber duty. Will the Senate rise to the occasion? I yield the floor. The ACTING PRESIDENT pro tempore. The Chair recognizes the distinguished Senator from Maryland. Mr. VAN HOLLEN. Mr. President, I start by thanking Senator Schumer, the minority leader, for his pursuit of a fair impeachment trial in the Senate, something supported by the overwhelming majority of the American people, whether they be Republicans, Democrats, or Independents. The Senate will soon undertake this most serious of its duties-- considering the impeachment of a President. None of us relish this moment, but we all have a solemn responsibility under the Constitution to try this case, to assess the evidence, and to render fair judgment. We will hear a case from the House of Representatives and from the President's lawyers, and we will first be sworn in to do ``impartial justice according to the Constitution and laws.'' While Senators are primarily expected to listen to the evidence and weigh that evidence, we also have a special ability that most juries do not have: We can request additional information, we can request witnesses, and we can request documents. It only takes a simple majority, 51 Senators, to call witnesses and request those documents. In the two other times in the history of the Senate when we have considered a Presidential impeachment, we have required witnesses to testify directly or give sworn depositions. In President Clinton's impeachment trial, three witnesses were deposed even though they had all given prior sworn testimony in related proceedings. At that time, now-Majority Leader McConnell called their request for testimony ``modest''--a modest request. Senate Democrats have another modest request that is pending today. We would like to hear from four witnesses who have not testified previously, who did not testify in the House, who have not testified under penalty of perjury, like we saw other House witnesses testify. Why is that? That is because President Trump has ordered them not to testify. Those four witnesses are White House Acting Chief of Staff Mick Mulvaney, former National Security Advisor John Bolton, and top administration officials Michael Duffey and Robert Blair. We are also asking the Senate to request key documents the President has refused to provide. We know these are relevant witnesses. We know it even more after the reporting from this week, which has shown that these four witnesses have clear, firsthand knowledge of withholding of congressionally appropriated funds for Ukraine to fight Russian aggression--one of the actions at the center of the House's abuse-of-power charge. Newly revealed emails, which the Trump administration tried to keep secret, show that just 91 minutes after President Trump had his call with Ukrainian President Zelensky, Mr. Duffey emailed the Department of Defense and their officials to inform them that the administration would formally withhold military assistance for Ukraine. We know that days after the phone call, Mr. Duffey, a political appointee, took over the Ukraine portfolio from a career civil servant at OMB, under the guise of wanting to ``learn about the apportionment process.'' The administration claims that the reason for the hold was to conduct a review of Ukraine assistance, even though the hold was formally ordered on the same day President Trump personally pressured President Zelensky to investigate Vice President Joe Biden and the 2016 election in order to boost President Trump's personal political agenda. There is no evidence that any real review of assistance to Ukraine took place, and none of the emails about the hold on assistance discuss any review actually happening. Instead, we now know that Mr. Duffey tried to keep the hold a secret, known to as few people as possible. Here is what he wrote in his email informing the Department of Defense about the hold: ``Given the sensitive nature of the request, I appreciate your keeping that information closely held to those who need to know to execute the direction.'' We also know that OMB would eventually issue nine of what they called footnotes from July to September to delay releasing the congressionally authorized funding for assistance to Ukraine. The emails that have surfaced also reveal that the Defense Department raised concerns that the hold was breaking the law--something the administration has tried to hide. Congress, many years ago, passed a law called the Impoundment Control Act to address situations like this, where funding is provided in law but the President--whoever the President may be--refuses to spend it. The Impoundment Control Act only allows the executive branch to withhold funding in very limited circumstances. It requires the President to notify Congress when he withholds legally appropriated funding, something President Trump never did when he withheld assistance to Ukraine. In addition to abusing his power by pressuring Ukraine to interfere in our elections, I think the evidence will also show that President Trump violated the Impoundment Control Act. I have asked the Government Accountability Office to look into this and give us an independent legal opinion. GAO is working on this now, and as part of their review, they asked the Trump administration to explain what happened. In their response, OMB claimed that the Defense Department's general counsel never told OMB that the hold would legally prevent the funds from being spent before they expire at the end of the fiscal year. Thanks to newly revealed emails--in fact, emails that we saw in their unredacted form for the first time yesterday--we know that this was, at best, extremely misleading. As the hold continued, Defense Department officials repeatedly raised concerns about its legality. In an email sent on August 27, the Defense Department shared a draft letter that they had prepared to send to OMB that included the following sentence about continuing to withhold funding for the Ukraine Security Assistance Initiative, called USAI for short. Here is what they wrote: ``As a result, we have repeatedly advised OMB officials that pauses beyond August 19, 2019, jeopardize the Department's ability to obligate . . . [USAI] funding prudently and [[Page S7]] fully, consistent with the Impoundment Control Act.'' Here, we have Defense Department officials directly raising concerns about the hold breaking the law, despite what OMB said to GAO. Here is what we saw earlier. This is one of the redacted emails. This is the draft letter I just referred to that had been prepared for the signature of the Deputy Secretary of Defense. It is addressed to Mr. Vought, the Acting Director over at OMB. When the administration first released the emails in response to a Freedom of Information request-- something the administration didn't want to do but was required by law--they decided to black out this entire email, to redact it. What we learned yesterday was that this blackout contained the sentences that I just read about the Department of Defense being very, very worried that continued withholding violated the law, violated the Impoundment Control Act. I can't imagine how, in good faith, the Justice Department or whoever it was in the administration just blacked this out. I am told it was the Attorney General. That is abuse of power to deny that information to the American people and to the Congress, and this appears to be just the tip of the iceberg. Ultimately, we know that the President's hold on the Ukraine funds continued until September 12, and the Defense Department was unable to deliver $35 million of that vitally needed aid to Ukraine before the funds expired at the end of the fiscal year. It was only because Congress later acted by a vote of both Houses of Congress to extend that funding that the Defense Department can now deliver this assistance. This is why it is all the more important for the Senate to hear testimony from the witnesses under oath, under penalty of perjury, and to review the relevant documents for ourselves. Mr. Mulvaney, Mr. Blair, and Mr. Duffey were all directly involved in carrying out President Trump's order to withhold Ukraine assistance. Mr. Bolton, according to testimony of Dr. Fiona Hill, raised significant concerns about the hold. So far as we just heard, the majority leader, Senator McConnell, has rejected these reasonable requests for witnesses and documents, despite the fact that they are clearly directly relevant to the impeachment trial. I think people have a very simple question: Why is the President and why is the majority leader so desperate, so scared to provide these documents and prevent these individuals from testifying under penalty of perjury? It has been deeply disappointing to hear the majority leader say that he is ``not an impartial juror'' and that he will work in lockstep with the President's lawyers. He is asking the Senate to allow the defendant in this case, the President of the United States, to set the terms of his own trial. This is not just an affront to our constitutional duty, it defies justice and common sense. Make no mistake that those who vote to block the Senate from considering additional evidence from witnesses and documents are going to be complicit in rigging a trial and in a coverup. I would challenge my colleagues to tell me one case where, after you have a grand jury proceeding, the prosecution is not allowed to call witnesses at trial. That would be nuts. For the Senate to deliberately choose to close its eyes and shut its ears to evidence would be a miscarriage of justice and a violation of our constitutional obligations. I heard the majority leader talk about how the Speaker of the House is holding up sending the Articles of Impeachment. Well, if the majority leader were to just agree to do what we allow in every other trial in the country, which is call relevant witnesses and get relevant documents, we could start this trial tomorrow. It is the refusal of the majority leader to agree to what an overwhelming majority of Americans consider common sense and plain justice that we are experiencing whatever delay we end up experiencing in this case. The House has presented overwhelming evidence to support its two Articles of Impeachment: abuse of power and obstruction of Congress. The Senate trial is about hearing the case on both sides, including hearing from those who are directly involved before rendering a final verdict. President Trump has said many times he wants to call witnesses. He wants to have a full trial. If he has evidence to rebut the facts established by the House, the Senate needs to hear it, and we should render a final verdict after all the evidence is in and not before. Some may have heard our Republican colleagues argue that we need to rush to trial to get back to legislative business. First, let's remember that impeachment is our constitutional responsibility, and we can have a trial that is both speedy and fair. Second, as we have seen in the House of Representatives, it is possible to conduct robust oversight and legislate at the same time. In fact, the week before the House of Representatives voted on impeachment, they passed a very important bill to reduce the costs of prescription drugs. In fact, the House has passed over 300 bills that Senator McConnell has refused to bring up for a vote here in the Senate, including hundreds with bipartisan support. The House has acted to expand background checks for gun purchases to reduce gun violence, passed legislation to get Big Money out of politics, to strengthen voting rights, to raise the minimum wage for the first time in more than a decade, to protect employee pensions, and to reauthorize the Violence Against Women Act. Senator McConnell has not only blocked consideration of these critical measures, he has boasted about his obstruction, calling himself the ``grim reaper.'' So let's not fall for the claim that the majority leader suddenly wants to get to work on these initiatives that are important to the American people. To date, he has made no commitment to take up any of those bills, whether or not there is an impeachment trial. As the Senate discharges its constitutional duties, whether by conducting an impeachment trial or passing legislation, it should never be an instrument of a President, regardless of party. We should not be a rubberstamp. We should never outsource our judgment or our votes to any White House. We serve the American people and must render justice fairly and honorably at this critical time in our history. ____________________
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