E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 116 CONGRESS, SECOND SESSION

Vol. 166 WASHINGTON, MONDAY, JANUARY 27, 2020 No. 17 Senate The Senate met at 1:05 p.m. and was The Sergeant at Arms, Michael C. hear more about that. I want to give called to order by the Chief Justice of Stenger, made the proclamation as fol- you a little bit of an overview of what the United States. lows: we plan to do today in our presen- f Hear ye! Hear ye! Hear ye! All persons are tation. commanded to keep silence, on pain of im- You will hear from a number of law- TRIAL OF DONALD J. TRUMP, prisonment, while the Senate of the United yers. Each one of these lawyers will be PRESIDENT OF THE UNITED States is sitting for the trial of the articles addressing a particular aspect of the STATES of impeachment exhibited by the House of President’s case. I will introduce the The CHIEF JUSTICE. The Senate Representatives against Donald John Trump, issues that they are going to discuss, President of the United States. will convene as a Court of Impeach- and, then, that individual will come up ment. The CHIEF JUSTICE. The majority and make their presentation. We want The Chaplain will lead us in prayer. leader is recognized. to do this on an expeditious but yet PRAYER Mr. MCCONNELL. Mr. Chief Justice, thorough basis. The Chaplain, Dr. Barry C. Black, of- as the Chaplain has indicated, on be- Let me start with, just for a very fered the following prayer: half of all of us, happy birthday. I am brief few moments, taking a look at Let us pray. sure this is exactly how you had where we were. One of the things that Lord, through all the generations, planned to celebrate the day. became very clear to us as we looked at You have been our mighty God. As mil- The CHIEF JUSTICE. Thank you the presentation from the House man- lions mourn the deaths of Kobe and very much for those kind wishes, and agers was the lack of focus on that Gianna Bryant and those who died with thank you to all the Senators for not July 25 transcript. That is because the them, we think about life’s brevity, un- asking for the yeas and nays. transcript actually doesn’t say what certainty, and legacy. Remind us that (Laughter.) they would like it to say. We have we all have a limited time on Earth to ORDER OF PROCEDURE heard—and you will hear more—about leave the world better than we found Mr. MCCONNELL. For the informa- that in the days ahead. We know about it. tion of all Senators, we should expect Mr. SCHIFF’s version of the transcript. As this impeachment process unfolds, to break every 2 or 3 hours and then at You heard it. You saw it. give our Senators the desire to make 6 o’clock a break for dinner. I want to keep coming back to the most of their time on Earth. Teach And with that, Mr. Chief Justice, I facts—facts that are undisputed. The them how to live, O God, and lead them yield the floor. President, in his conversation, was along the path of honesty. May they The CHIEF JUSTICE. Pursuant to clear on a number of points, but so was hear the words of Jesus of Nazareth re- the provisions of S. Res. 483, the coun- President Zelensky. I mentioned that verberating down the corridors of the sel for the President have 22 hours and at the close of my arguments earlier, centuries: ‘‘And you shall know the 5 minutes remaining to make the pres- that it was President Zelensky who truth, and the truth shall make you entation of their case. The Senate will said: No pressure, I didn’t feel any pres- free.’’ now hear you. sure. And Lord, thank You for giving our The Senate will now hear you, Mr. And, again, as this kind of reading of Chief Justice another birthday. Amen. Sekulow. minds of what people were saying, I PLEDGE OF ALLEGIANCE OPENING STATEMENT—CONTINUED think we need to look at what they ac- The Chief Justice led the Pledge of Mr. Counsel SEKULOW. Mr. Chief tually said and how it is backed up. Allegiance, as follows: Justice, Members of the Senate, man- It is our position as the President’s I pledge allegiance to the Flag of the agers, what we have done on Saturday counsel that the President was at all United States of America, and to the Repub- is the pattern that we are going to con- time acting under his constitutional lic for which it stands, one nation under God, tinue today, as far as how we are going authority, under his legal authority, in indivisible, with liberty and justice for all. to deal with the case. We deal with our national interest, and pursuant to THE JOURNAL transcript evidence. We deal with pub- his oath of office. Asking a foreign The CHIEF JUSTICE. Please be seat- licly available information. We do not leader to get to the bottom of issues of ed. If there is no objection, the Journal deal with speculation, allegations that corruption is not a violation of an of proceedings of the trial is approved are not based on evidentiary standards oath. to date. at all. It was interesting because there was Without objection, it is so ordered. We are going to highlight some of a lot of discussion the other day about The Sergeant at Arms will make the those very facts we talked about very Lieutenant Colonel Vindman, and one proclamation. quickly on Saturday. You are going to of the things that we reiterate is that

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

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VerDate Sep 11 2014 23:26 Feb 11, 2020 Jkt 099060 PO 00000 Frm 00001 Fmt 4624 Sfmt 0634 E:\RECORD20\JANUARY\S27JA0.REC S27JA0 sradovich on DSKJLST7X2PROD with CONG-REC-ONLINE S580 CONGRESSIONAL RECORD — SENATE January 27, 2020 he himself said that he did not know if Mr. Chief Justice, House Managers, is being called to sit as the High Court there was anything of crime or any- and staff, Members of the Senate, the of Impeachment all too frequently. In- thing of that nature. He had deep pol- majority leader, and the minority lead- deed, we are living in what I think can icy concerns. I think that is what this er, at the beginning of these pro- aptly be described as the ‘‘age of im- is really about—deep policy concerns, ceedings on January 16, the Chief Jus- peachment.’’ In the House, resolution deep policy differences. tice administered the oath of office to after resolution, month after month, We live in a constitutional Republic the Members of this body and then has called for the President’s impeach- where you have deep policy concerns again on Tuesday. In doing so, the ment. and deep differences. That should not Chief Justice was honoring the words How did we get here, with Presi- be the basis of an impeachment. If the of our Constitution, article I, section 3. dential impeachment invoked fre- bar of impeachment has now reached We all know the first sentence of that quently in its inherently destabilizing, that level, then, for the sake of the Re- article by heart: ‘‘The Senate shall as well as acrimonious way? Briefly public, the danger that puts not just have the sole Power to try all Impeach- told, the story begins 42 years ago. this body but our entire constitutional ments.’’ But then the constitutional In the wake of the long national framework in is unimaginable. Every text goes on to say this: ‘‘When sitting nightmare of Watergate, Congress and time there is a policy difference of sig- for that Purpose, they shall be on Oath President Jimmy Carter collabo- nificance or an approach difference of Or Affirmation.’’ That oath or affirma- ratively ushered in a new chapter in significance about a policy, are we tion, in turn, requires each Member of America’s constitutional history. To- going to start an impeachment pro- the Senate to do impartial justice. gether, in full agreement, they enacted ceeding? This constitutionally administered the independent counsel provisions of As I said earlier, I don’t think this oath or affirmation has been given in the Ethics in Government Act of 1978. was about just a phone call. There was every proceeding in this body since But the new chapter was not simply a pattern in practice of attempts over 1798. Indeed, to signify the importance the age of independent counsels; it be- a 3-year period to not only interfere of the occasion, the Senate’s more re- came, unbeknownst to the American with the President’s capability to gov- cent traditions call for you, as you did, people, the age of impeachment. ern—which, by the way, they were to sign the book. And that book is not During my service in the Reagan ad- completely unsuccessful at; just look simply part of the record; it is en- ministration as Counsel and Chief of at the state of where we are as a coun- trusted to the National Archives. In Staff to Attorney General William try—but also interfere with the con- contrast, Members of the House of Rep- French Smith, the Justice Department stitutional framework. resentatives do not take an oath in took the position that, however well- I am going to say this because I want connection with impeachment. The intentioned, the independent counsel to be brief. We are going to have a se- Framers of our Constitution well knew provisions were unconstitutional. Why? ries of lawyers address you. So it will when an oath or affirmation should be In the view of the Department, those not be one lawyer for hours and hours. required—the Senate, yes; the House, provisions intruded into the rightful We are going to have a series of law- no. Thus, each Member of the world’s domain and prerogative of the execu- yers address you on a variety of issues. greatest deliberative body now has spe- tive branch of the Presidency. This is how we envision the President’s cial—indeed unique—duties and obliga- The Justice Department’s position defense going. We thought it would be tions imposed under our founding docu- was eventually rejected by the Su- appropriate to start with an overview, ment. preme Court, but most importantly, in if you will, of some of the significant During the Clinton impeachment helping us understand this new era in historical issues, constitutional issues, trial 21 years ago in this Chamber, the our country’s history, Justice Antonin involving impeachment proceedings, Chief Justice of the United States Scalia was in deep dissent. Among his since we don’t have a long history of ruled in response to an objection that stinging criticisms of that law, Justice that. I think that is a good thing for was interposed by Senator Tom Harkin Scalia wrote this: ‘‘The context of this the country that we don’t, and I think of Iowa. The Senators are not sitting statute is acrid with the smell of that we would all agree. But if this be- as jurors, Senator Harkin noted, and threatened impeachment.’’ Impeach- comes the new standard, the future is the Chief Justice agreed with that ment. going to look a lot different. proposition. Rather, the Senate is a Justice Scalia echoed the criticism of We are going to hear next from my court. In fact, history teaches us that the court in which I was serving at the cocounsel Judge Kenneth Starr. Judge for literally decades, this body was re- time, the District of Columbia Circuit, Starr is a former judge for the U.S. ferred to in this context as the High which had actually struck down the Court of Appeals for the District of Co- Court of Impeachment. So we are not a law as unconstitutional in a very im- lumbia. He served as the 39th Solicitor legislative Chamber during these pro- pressive opinion by renowned Judge General of the United States, arguing ceedings. We are in a tribunal. We are Laurence Silberman. cases before the Supreme Court of the in court. Why would Justice Scalia refer to United States on behalf of the United Alexander Hamilton has been quoted impeachment? This was a reform meas- States. frequently in these proceedings, but in ure. There would be no more Saturday I had the privilege of arguing a case Federalist 78, he was describing the Night Massacres—the firing of Special alongside Judge Starr—we were talk- role of courts—your role—and in doing Prosecutor, as he was called, Archibald ing about this earlier—many years ago. so, he distinguished between what he Cox by President Nixon. Government He also served as the independent called the exercise of judgment on the would now be better, more honest, counsel during the Clinton Presidency one hand, which is what courts do, and greater accountability, and the inde- and author of the Starr report. He tes- the exercise of will or policy pref- pendent counsel would be protected. tified for almost 12 hours before the Ju- erences, if you will, on the other hand. But the word ‘‘impeachment’’ haunts diciary Committee with regard to that That is what legislative bodies do. that dissenting opinion, and it is not report. Judge Starr is very familiar According to Hamilton, courts were hard to discover why—because the with this process. He is going to ad- to be, in his word, ‘‘impartial.’’ There statute, by its terms, expressly di- dress a series of deficiencies, which are is that word again. You know, that is a rected the independent counsel to be- legal issues with regard to articles I daunting task for judges struggling to come, in effect, an agent of the House and II—constitutional implications, do the right thing, to be impartial— of Representatives. And to what end? historical implications, and legal im- equal justice under law. It is certainly To report to the House of Representa- plications of where this case now hard in life to be impartial. In politics, tives when a very low threshold of in- stands. it is not even asked of one to be impar- formation was received that an im- I would like to yield my time right tial. But that is the task that the Con- peachable offense, left undefined, may now to, if it please the Chief Justice, stitution chose to impose upon each of have been committed. Ken Starr. you. To paraphrase President Clinton’s The CHIEF JUSTICE. Mr. Starr. Significantly, in this particular junc- very able counsel at the time, Bernie Mr. Counsel STARR. Thank you. ture in America’s history, the Senate Nussbaum, this statute is a dagger

VerDate Sep 11 2014 01:33 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00002 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.002 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE January 27, 2020 CONGRESSIONAL RECORD — SENATE S581 aimed at the heart of the Presidency. practice which had last been attempted the Nation’s highest office, who had President Clinton, nonetheless, signed in Britain in 1868 failed to meet modern just won reelection by a landslide. the reauthorized measure into law, and procedural standards of fairness—fair- It bears emphasis before this high the Nation then went through the long ness. court that this was the first Presi- process known as Whitewater, result- As Sir William McKay recently re- dential impeachment in over 100 years. ing in the findings by the office which marked: ‘‘Impeachment in Britain is It also bears emphasis that it was pow- I led, the Office of Independent Coun- dead.’’ erfully bipartisan. And it was not just sel, and a written report to the House Yet, here at home, in the world’s the vote to authorize the impeachment of Representatives. That referral to longest standing constitutional Repub- inquiry. Indeed, the House Judiciary Congress was stipulated in the Ethics lic, instead of a once-in-a-century phe- chair, Peter Rodino, of New Jersey, in Government Act of 1978. nomenon, which it had been, Presi- was insistent that, to be accepted by To put it mildly, Democrats were dential impeachment has become a the American people, the process had very upset about what had happened. weapon to be wielded against one’s po- to be bipartisan. They then joined Republicans across litical opponent. Like war, impeachment is hell or, at the aisle who, for their part, had been In her thoughtful Wall Street Jour- least, Presidential impeachment is outraged by an earlier independent nal op-ed a week ago, Saturday, Peggy hell. Those of us who lived through the counsel investigation, that of a very Noonan wrote this: Clinton impeachment, including Mem- distinguished former judge, Lawrence Impeachment has now been normalized. It bers of this body, full well understand Walsh. will not be a once-in-a-generation act but an that a Presidential impeachment is During the Reagan administration, every-administration act. The Democrats tantamount to domestic war. Albeit Judge Walsh’s investigation into what will regret it when the Republicans are hand- thankfully protected by our beloved became known to the country as Iran- ing out the pens [for the signing ceremony]. First Amendment, it is a war of words Contra spawned enormous criticism on When we look back down the cor- and a war of ideas, but it is filled with the Republican side of the aisle, both ridors of time, we see that for almost acrimony, and it divides the country as to the investigation itself but also our first century as a constitutional re- like nothing else. Those of us who lived as to statute. public the sword of Presidential im- through the Clinton impeachment un- The acrimony surrounding Iran- peachment remained sheathed. Had derstand that in a deep and personal Contra and then the impeachment and there been controversial Presidents? way. the trial and President Clinton’s ac- Oh, yes, indeed. Think of John Adams Now, in contrast, wisely and judi- quittal by this body led inexorably to and the Alien and Sedition Acts. Think cially conducted, unlike in the United the end of the independent counsel era. of Andrew Jackson and Henry Clay. Kingdom, impeachment remains a vital Enough was enough. Living through Were partisan passions occasionally in- and appropriate tool in our country to that wildly controversial, 21-year, bold flamed during that first century? Of serve as a check with respect to the experiment with the independent coun- course. Federal judiciary. After all, in the Con- sel statute, Congress, in a bipartisan And lest there be any doubt, the stitution’s brilliant structural design, way, had a change of heart. It allowed early Congresses full well knew how to Federal judges know, as this body full the law to expire in accordance with its summon impeachment to the floor, in- well knows from its daily work, of a terms in 1999. cluding against a Member of this pivotally important feature—independ- That would-be and well-intentioned body—Senator William Blount, of Ten- ence from politics—exactly what Alex- reform measure died a quiet and un- nessee. During the Jefferson adminis- ander Hamilton was talking about in eventful death, and it was promptly re- tration, the unsuccessful impeachment Federalist 78: during the Constitution’s placed by Justice Department internal of Justice Samuel Chase—a surly and regulations promulgated by Attorney term, good behavior; in practical ef- partial jurist, who was, nonetheless, fect, life tenure. Impeachment is, thus, General Janet Reno during the waning acquitted by this Chamber—became an months of the President Clinton ad- a very important protection for we the early landmark in maintaining the ministration. One can review those reg- people against what could be serious treasured independence of our Federal ulations and see no reference to im- article III wrongdoing within that judiciary. peachment—none. No longer were the branch. It took the national convulsion of poison pill provisions of Presidential And so it is that, when you count, of the Civil War, the assassination of Mr. impeachment part of America’s legal the 63 impeachment inquiries author- Lincoln, and the counter-reconstruc- landscape. They were gone. The Reno ized by the House of Representatives tion measures aggressively pursued by regulation seemed to signal a return to over our history, only 8 have actually Mr. Lincoln’s successor, Andrew John- traditional norms. Impeachment would been convicted in this high court and son, to bring about the Nation’s very no longer be embedded in the actual removed from office, and each and first Presidential impeachment. Fa- laws of the land but returned to the every one has been a Federal judge. mously, of course, your predecessors in language of the Constitution. This history leads me to reflect on In the meantime, America’s constitu- this High Court of Impeachment ac- the nature of your weighty responsibil- tional DNA and its political culture quitted the unpopular and controver- ities here in this high court as judges had changed. Even with the dawn of sial Johnson but only by virtue of Sen- in the context of Presidential impeach- the new century, the 21st century, ‘‘im- ators from the party of Lincoln break- ment—the fourth Presidential im- peachment’’ remained on the lips of ing ranks. peachment. I am counting the Nixon countless Americans and echoed fre- It was over a century later that the proceedings in our Nation’s history, quently in the people’s House. The im- Nation returned to the tumultuous but the third over the past half cen- peachment habit proved to be hard to world of Presidential impeachment, ne- tury. kick. cessitated by the rank criminality of And I respectfully submit that the Ironically, while this was happening the Nixon administration. In light of Senate, in its wisdom, would do well in here at home, across the Atlantic, the the rapidly unfolding facts, including its deliberations to guide the Nation in use of impeachment as a weapon dis- uncovered by the Senate select com- this world’s greatest deliberative body appeared. In the United Kingdom, from mittee, in an overwhelmingly bipar- to return to our country’s traditions which, of course, we inherited the proc- tisan vote of 410 to 4, the House of Rep- when Presidential impeachment was ess, impeachment was first used more resentatives authorized an impeach- truly a measure of last resort. Mem- than two centuries before those first ment inquiry; and, in 1974, the House bers of this body can help and in this settlers crossed the Atlantic. But upon Judiciary Committee, after lengthy very proceeding restore our constitu- thoughtful examination, a number of hearings, voted again in a bipartisan tional and historical traditions, above modern-day parliamentary committees manner to impeach the President of all, by returning to the text of the Con- looked and found impeachment to be the United States. Importantly, Presi- stitution itself. It can do so by its ex- obsolete. dent Nixon’s own party was slowly but ample here in these proceedings in Among other criticisms, Members of inexorably moving toward favoring the weaving the tapestry of what can Parliament came to the view that the removal of their chosen leader from rightly be called the common law of

VerDate Sep 11 2014 01:33 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00003 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.004 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE S582 CONGRESSIONAL RECORD — SENATE January 27, 2020 Presidential impeachment. That is peachments, as I will seek to dem- relevant, the commission of a crime is what courts do. They weave the com- onstrate, serves as a clarifying and sta- by no means sufficient to warrant the mon law. There are indications within bilizing element. It increases predict- removal of our duly elected President. the constitutional text—I will come to ability—to do what?—to reduce the Why? our history—so that this fundamental profound danger that a Presidential This body knows. We appoint judges question is appropriate to be asked— impeachment will be dominated by and you confirm them and they are you are familiar with the arguments: partisan considerations—precisely the there for life. Not Presidents. And the Was there a crime or other violation of evil that the Framers warned about. Presidency is unique. The Presidency established law alleged? And so to history. stands alone in our constitutional So let’s turn to the text. History bears out the point. The Na- framework. Throughout the Constitution’s de- tion’s most recent experience—the Before he became the Chief Justice of scription of impeachment, the text Clinton impeachment—even though se- the United States, John Marshall, then speaks always—always—without excep- verely and roundly criticized, charged sitting as a Member of the people’s tion, in terms of crimes. It begins, of crimes. These were crimes proven in House, made a speech on the floor of course, with treason—the greatest of the crucible of the House of Represent- the House, and there he said this: crimes against the state and against atives’ debate beyond any reasonable The President is the sole organ of the Na- we the people, but so misused as a observer’s doubt. tion in its external relations, and its sole bludgeon and parliamentary experi- So too the Nixon impeachment. The representative with foreign nations. ence, to lead the Founders to actually articles charged crimes. What about ar- If that sounds like hyperbole, it has define the term in the Constitution ticle II in Nixon, which is sometimes been embraced over decades by the Su- itself. Bribery—an iniquitous form of referred to as abuse of power? Was that preme Court of the United States, by moral and legal corruption and the the abuse of power article—the pre- Justices appointed by many different basis of so many of the 63 impeachment cursor to article I that is before this Presidents. The Presidency is unique. proceedings over the course of our his- court? Not at all. When one returns to There is no other system quite like tory—again, almost all of them against article II in Nixon—approved by a bi- ours, and it has served us well. judges. And then the mysterious partisan House Judiciary Committee— And so as to the Presidency, im- terms—other high crimes and mis- article II of Nixon sets forth a deeply peachment and removal not only over- demeanors. Once again, the language is troubling story of numerous crimes— turns a national election and perhaps employing the language of crimes. The not one, not two, numerous crimes— profoundly affects an upcoming elec- Constitution is speaking to us in terms carried out at the direction of the tion, in the words of Yale’s Akhil of crimes. President himself. Amar, it entails a risk, and these are Each of those references, when you And so the appropriate question: Akhil’s words, Professor Amar’s, ‘‘a count them—count seven, count Were crimes alleged in the articles of grave disruption of the government.’’ eight—supports the conclusion that the common law of Presidential im- Professor Amar penned those words in impeachments should be evaluated in peachment? In Nixon, yes. In Clinton, connection with the Clinton impeach- terms of offenses against established yes. Here, no—a factor to be considered ment. ‘‘Grave disruption of the govern- law but especially with respect to the as the judges of the high court. ment.’’ Regardless of what the Presi- Presidency, where the Constitution re- Come, as you will, individually to dent has done, ‘‘grave disruption.’’ quires the Chief Justice of the United your judgment. We will all agree that the Presidents, States and not a political officer—no Even in the political cauldron of the under the text of the Constitution and matter how honest, no matter how im- Andrew Johnson impeachment, article its amendments, are to serve out their partial—to preside at trial. Guided by XI charged a violation of the con- term absent a genuine national con- history, the Framers made a deliberate troversial Tenure of Office Act. You sensus, reflected by the two-thirds ma- and wise choice to cabin, to constrain, are familiar with it. And that act jority requirement of this court, that to limit the power of impeachment. warned expressly the Oval Office; that the President must go away. Two- And so it was, on the very eve of the its violation would institute a high thirds. In politics and in impeachment, impeachment of President Andrew misdemeanor, employing the very lan- that is called a landslide. Johnson, that the eminent scholar and guage of constitutionally cognizable Here, I respectfully submit to the dean of Columbia Law School, Theo- crimes. court, that all fairminded persons will dore Dwight, wrote this: ‘‘The weight This history represents, and I be- surely agree there is no national con- of authority is that no impeachment lieve, may it please the court, it em- sensus. We might wish for one, but will lie except for a true crime—a bodies the common law of Presidential there isn’t. To the contrary, for the breach of the law—which would be the impeachment. These are facts gleaned first time in America’s modern history, subject of indictment.’’ I am not mak- from the constitutional text and from not a single House Member of the ing that argument. I am noting what the gloss of the Nation’s history. President’s party supported either of he is saying. He didn’t over-argue the And under this view, the commission the two Articles of Impeachment—not case. He said ‘‘the weight of author- of an alleged crime, the violation of es- one, not in committee, not on the ity,’’ ‘‘the weight of authority.’’ tablished law, can appropriately be House floor. And so this issue is a weighty one. considered, again, a weighty and an im- And that pivotal fact puts in bold re- Has the House of Representatives, with portant consideration and element of a lief the Peter Rodino principle—call it all due respect, in these two Articles of historically supportable Presidential the Rodino rule—impeachment must be Impeachment charged a crime or a vio- impeachment. bipartisan in nature. lation of established law or not? This Will law professors agree with this? Again, sitting as a court, this body is—I don’t want to over-argue—an ap- No, but with all due respect to the should signal to the Nation the return propriate and weighty consideration academy, this is not an academic gath- to our traditions—bipartisan impeach- for the Senate but especially as I am ering. We are in court. We are not just ments. trying to emphasize in the case not of in court. With all due respect to the What is the alternative? Will the a Federal judge but of the President. Chief Justice and the Supreme Court of President be King? Do oversight. The Courts consider prudential factors, and the United States, we are in democ- tradition of oversight—an enormous there is a huge prudential factor that racy’s ultimate court. check on Presidential power through- this trial is occurring in an election And the better constitutional answer out our history, and it continues avail- year, when we the people, in a matter to the question is provided by a rig- able today. of months, will go to the polls. orous and faithful examination of the In Iran-Contra, no impeachment was In developing the common law of constitutional text and then looking undertaken. The Speaker of the House, Presidential impeachment, this thresh- faithfully and respectfully to our his- a Democrat, Jim Wright from Texas, old factor, consistent with the con- tory. from Fort Worth, where the West be- stitutional text, consistent with the The very divisive Clinton impeach- gins, knew better. He said no. But as Nation’s history and Presidential im- ment demonstrates that, while highly befits the age of impeachment, a House

VerDate Sep 11 2014 01:33 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00004 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.005 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE January 27, 2020 CONGRESSIONAL RECORD — SENATE S583 resolution to impeach President Ron- in recognizing the President’s profound the Speaker of the House of Represent- ald Reagan was introduced. It was interest in confidentiality, regardless atives, with all her abilities and her filed, and the effort to impeach Presi- of the world view or philosophy of the vast experience, under our Constitu- dent Reagan was supported by a lead- justice, the Justices were unanimous. tion, she was powerless to do what she ing law professor whose name you This isn’t just a contrivance; it is built purported to do. As has been said now would well recognize, and you will hear into the very nature of our constitu- time and again, especially throughout it again this evening from Professor tional order. So let me comment, brief- the fall, the Constitution does entrust Dershowitz. I will leave to it him to ly. the sole power of impeachment to the identify the learned professor. But the This constitutionally based recogni- House of Representatives, but that is Speaker of the people’s House, emu- tion of executive privilege and then the House, its 435 Members elected lating Peter Rodino, said no. companion privileges—the deliberative from across the constitutional Repub- So I, respectfully, submit that the process privilege, the immunity of lic—not one, no matter how able she Senate should close this chapter, this close Presidential advisers from being may be. In the people’s House, every idiosyncratic chapter, on this increas- summoned to testify—these are all Congressperson gets a vote. We know ingly disruptive act, this era, this age firmly established in our law. the concept: one person, one vote. of resorting to the Constitution’s ulti- If there is a dispute between the peo- More generally, the President, as I mate democratic weapon for the Presi- ple’s House and the President of the reviewed the record, has consistently dency. Let the people decide. United States over the availability of and scrupulously followed the advice There was a great Justice who sat for documents or witnesses—and there is and counsel of the Justice Department 30 years, Justice John Harlan, in the in each and every administration—then and, in particular, the Office of Legal mid-century of the 20th century. And go to court. It really is as simple as Counsel. He has been obedient. As you in a lawsuit involving a very basic that. I don’t need to belabor the point. know, that important office—many of question: Can citizens whose rights But here is the point I would like to you have had your own experiences have clearly been violated by Federal emphasize. Frequently, the Justice De- professionally with that office—is law enforcement agencies and agents partment advises the President of the staffed with lawyers of great ability. It bring an action for damages when Con- United States that the protection of has a reputation for superb work. It gress has not so provided—no law that the Presidency calls—whatever the has done such thoughtful work with gave the wounded citizen a right to re- President might want to do as a polit- both Democratic and Republican ad- dress through damages? ical matter, as an accommodation in ministrations. The office is now headed And Justice Harlan, in a magnificent the spirit of comity—to protect privi- by a brilliant lawyer who served as a concurring opinion in Bivens v. Six leged conversations and communica- law clerk to Justice Anthony Kennedy. Unnamed Federal Agents, suggested tions. The House may disagree with the that courts—here you are—should take I have heard it, in my two tours of guidance provided to the President by into consideration in reaching its judg- duty at the Justice Department: Don’t that office; the House frequently does ment—their judgment—what he called release the documents, Mr. President. disagree. But for the President to fol- factors counseling restraint. If you do, you are injuring the Presi- low the guidance of the Department of He was somewhat reluctant to say dency. Go to court. Justice with respect to an interbranch that we, the Supreme Court, should We have heard concerns about the legal and constitutional dispute cannot grant this right, that we should create length of time that the litigation reasonably be viewed as an obstruction it when Congress hasn’t acted and Con- might take. Those of us who have liti- and, most emphatically, not as an im- gress could have acted, but it hadn’t. gated know that sometimes litigation peachable offense. But he reluctantly came to the conclu- does take longer than we would like. History, once again, is a great teach- sion that the Constitution itself em- Justice delayed is justice denied. We er. In the Clinton impeachment, the powered the Federal courts to create could all agree with that. House Judiciary Committee rejected a this right for our injured citizens, to But our history—Churchill’s maxim, draft article asserting that President give them redress, not just an injunc- study history—our history tells us that Clinton—and here are the words that tive relief but damages, money recov- is not necessarily so. Take by way of were drafted: ‘‘fraudulently and cor- ery, for violations of their constitu- example the Pentagon Papers case—or- ruptly asserted executive privilege.’’ tional rights. Factors counseling re- ders issued preventing and sanctioning Strong words, ‘‘fraudulently and cor- straint. And he addressed them, and he a gross violation of the First Amend- ruptly.’’ That was the draft article. came to the view—it was so honest— ment’s guarantee of freedom of the In my view, having lived through the and said: I came to the case with a dif- press, an order issued out of the dis- facts and with all due respect to the ferent view, but I changed my mind trict court June 15, 1971. That order former President, he did. He did it time and voted in favor of the Bivens family was reversed in an opinion by the Su- and again, month after month. We having redress against the Federal preme Court of the United States 2 would go to court, and we would win. agents who had violated their rights, weeks later. June 15. Many members—not everybody—on the judging in its most impartial, elegant The House of Representatives could House Judiciary Committee agreed sense. have followed that well-trodden path. that the President had, indeed, improp- I am going to draw from Justice Har- It could have sought expedition. The E. erly claimed executive privilege, lan’s matrix of factors counseling re- Barrett Prettyman Courthouse is 6 rebuffed time and again by the Judici- straint and simply identify these. I blocks down. The judges are there. ary. But at the end of the day, that think there may be others. They are all very able. They are hard- Committee, the Judiciary Committee The articles do not charge a crime working people of integrity. Follow the of the House, chaired by Henry Hyde, for violations established. I am sug- path. Follow the path of the law. Go to wisely concluded that President Clin- gesting it is a relevant factor. I think court. ton’s doing so should not be considered it is a weighty factor, when we come to There would have been at least one an impeachable offense. Presidential impeachment, not judicial problem had the House seen fit to go to Here is the idea. It is not an impeach- impeachment. court and remain in court. The issue is able offense for the President of the Secondly, the articles come to you before you. United States to defend the asserted with no bipartisan support. They come But among other flaws, the Office of legal and constitutional prerogatives of to you as a violation of what I am dub- Legal Counsel determined—and I have the Presidency. bing the Rodino rule. read the opinion, and I believe it is cor- This is, and I am quoting here from And third, as I will now discuss, the rect—that with all respect, all House page 55 of the President’s trial brief, ‘‘a pivotally important issue of process, subpoenas issued prior to the adoption function of his constitutional and pol- the second Article of Impeachment: of H.R. 660, which for the first time au- icy judgments,’’ not just a policy judg- Obstruction of Congress. thorized the impeachment inquiry as a ment, but a constitutional judgment. This court is very familiar with House, all subpoenas were invalid. I would guide this court, as it is com- United States v. Nixon. Its unanimity They were void. With all due respect to ing through the deliberation process,

VerDate Sep 11 2014 01:33 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00005 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.007 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE S584 CONGRESSIONAL RECORD — SENATE January 27, 2020 to read the President’s trial brief with ored. The House rules, the House’s tra- Fourth, not a single witness testified respect to process. It was Justice Felix ditions could have been honored, but that the President himself said that Frankfurter, confidante of FDR, bril- what is done is done. These two arti- there was any connection between any liant jurist, who reminded America cles come before this court, this High investigation, security assistance, a that the history of liberty is in large Court of Impeachment, dripping with Presidential meeting, or anything else. measure the history of process, proce- fundamental process violations. Fifth, the security assistance flowed dure. The courts—and you are the court— on September 11, and a Presidential In particular, I would guide the high are confronted with this kind of phe- meeting took place on September 25 court to the discussion of the long his- nomenon, a train of fairness violations. without the Ukrainian Government— tory of the House of Representatives— Courts of this country do the right without the Ukrainian Government— over two centuries—in providing due thing. They do impartial justice. They announcing any investigations. process protections in its impeachment invoke, figuratively or literally, the Finally, in the blind drive to impeach investigations. It is a richly historical words of the preamble to America’s the President, President Trump, in re- discussion. Constitution. The very first order of ality, strategically, has been the best The good news is, you can read the our government after ‘‘to form a more friend and supporter of Ukraine, cer- core of it in four pages, pages 62 to 66, perfect Union’’ is to ‘‘establish Jus- tainly, in our recent history. These are of the trial brief. It puts in bold relief, tice’’—to ‘‘establish justice.’’ Even be- the facts. That is what is before you. I believe, an irrefutable fact. This fore getting to the words to ‘‘provide Deputy White House Counsel Mike House of Representatives, with all re- for the common Defense, to promote Purpura will now address additional spect, sought to turn its back on its the general Welfare, to insure domestic facts related to these proceedings. own established procedures—proce- Tranquility,’’ the Constitution speaks Mr. Counsel PURPURA. Mr. Chief dures that have been followed faith- in terms of justice—establishing jus- Justice, Members of the Senate, good fully decade after decade, regardless of tice. afternoon. I would inform the leader who was in control, regardless of polit- Courts would not allow this. They that I believe we will be ready to take ical party. All those procedures were would not allow this because—why? a break at the conclusion of my re- torn asunder and all over the vigorous They knew, and they know, that the marks, if it meets with his approval. On Saturday, we walked through objections of the unanimous and vocal purpose of our founding instrument is some of the evidence that the House minority. to protect our liberties, to safeguard managers put forward and didn’t put I need not remind this high court us, but to safeguard us as individuals forward during their 21-plus hours of that in this country, minority rights against the powers of government. presentation. The evidence that we re- are important. Minority rights should Why? In the benedictory words of the counted was drawn directly from the be protected. Equal justice. preamble, to ‘‘secure the Blessings of House managers’ own record, the case But, then again, the House Members Liberty to ourselves and our Pos- they chose to submit to this Chamber. took no oath to be impartial. The Con- terity.’’ Liberty under law. I thank the court. To echo my colleague Mr. Sekulow stitution didn’t require them to say by briefly, the House managers’ own evi- oath or affirmation: We will do impar- The CHIEF JUSTICE. Mr. Sekulow. Mr. Counsel SEKULOW. Mr. Chief dence shows that President Trump did tial judgment—justice. When they Justice, Members of the Senate, House not condition anything on investiga- chose to tear asunder their procedures, managers: Judge Starr laid out before tions during the July 25 call with they were oathless. They could toss out you the solemn nature of these pro- President Zelensky and did not even their own rule book through raw ceedings. I want to contrast the solemn mention the pause on the security as- power. nature of these proceedings and what sistance on the call. President Here we have—tragically for the has been laid out before us from both a Zelensky said that he felt no pressure country and, I believe, tragically for historical and constitutional perspec- on the call. the House of Representatives—in arti- tive. President Zelensky and the top cle II of these impeachment articles a I want you to think about this, to Ukrainian officials did not learn of the runaway House. It has run away not history, the importance and solemnity pause on the security assistance until only from its longstanding procedures; of what we are engaged in in this body, more than a month after the July 25 it has run away from the Constitu- with what took place in the House of call, and the House managers’ own tion’s demand of fundamental fairness Representatives upon the signing of record—their record that they devel- captured in those hallowed terms, ‘‘due Articles of Impeachment—pens distrib- oped and brought before this Cham- process of law.’’ We have cared about uted to the impeachment managers. A ber—reflects that anyone who spoke this as an English-speaking people celebratory moment—think about with the President said that the Presi- since the Magna Carta. that; think about this—a poignant mo- dent made clear that there was no link- By doing so, however, the House has ment. age between security assistance and in- inadvertently pointed this court to an We are next going to address a fac- vestigations. exit ramp. It is an exit ramp provided tual analysis. To briefly reflect, my There is another category of evidence by the Constitution itself. It is an exit colleague, the Deputy White House that demonstrated that the pause on ramp built by the most noble of build- Counsel, Mike Purpura, will be joining security assistance was distinct and ers, the founding generation. Despite us in a moment to discuss more of the unrelated to investigations. The Presi- the clearest precedent requiring due facts, to continue the discussion that dent released the aid without the process for the accused in an impeach- we had on Saturday. But let me just Ukrainians ever announcing any inves- ment inquiry but, surely, all the more recap very quickly what was laid out tigations or undertaking any investiga- so in a Presidential impeachment, on Saturday. tions. House Democrats chose to conduct a First, the transcript shows that the Here is Ambassador Sondland. wholly unprecedented process in this President did not condition either se- (Text of Videotape presentation:) case, and they did so knowingly and de- curity assistance or a meeting on any- Ms. STEFANIK. And the fact is the aid was liberately because they were warned at thing. The paused security assistance given to Ukraine without any announcement every turn: Don’t do it. Don’t do it that funds aren’t even mentioned on the of new investigations? way. Ambassador SONDLAND. That’s correct. call. Ms. STEFANIK. And President Trump did And process—the process of being de- Second, President Zelensky and in fact meet with President Zelensky in Sep- nied the basic rights that have been af- other Ukrainian officials repeatedly tember at the United Nations, correct? forded to every single accused Presi- said there was no quid pro quo and no Ambassador SONDLAND. He did. dent in the history of the Republic, pressure on them to review anything. Ms. STEFANIK. And there was no an- even to the racist Andrew Johnson Third, President Zelensky and high- nouncement of investigations before this seeking to undo Mr. Lincoln’s great ranking Ukrainian officials did not meeting? Ambassador SONDLAND. Correct. legacy—he got those rights—but not even know the security assistance was Ms. STEFANIK. And there was no an- here. Due process could have been hon- paused until the end of August, over a nouncement of investigations after this ored; basic rights could have been hon- month after the July 25 call. meeting?

VerDate Sep 11 2014 01:33 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00006 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.009 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE January 27, 2020 CONGRESSIONAL RECORD — SENATE S585 Ambassador SONDLAND. That’s right. of his campaign platform. President So what happened during the brief Mr. Counsel PURPURA. So while the Trump is especially wary of sending period of time while the Ukraine secu- security assistance was paused, the ad- American taxpayer dollars abroad rity assistance was paused? People ministration did precisely what you when other countries refuse to pitch in. were gathering information and moni- would expect. It addressed President Mr. Morrison and Mr. Hale both tes- toring the facts on the ground in Trump’s concerns about the two issues tified at length about President Ukraine as the new Parliament was that I mentioned on Saturday: burden- Trump’s longstanding concern with sworn in and began introducing anti- sharing and corruption. burden-sharing in foreign aid pro- corruption legislation. A number of law- and policymakers grams. Here is what they said. Notwithstanding what the House also contacted the President and the (Text of Videotape presentation:) managers would have you believe, the White House to provide input on the se- Mr. RATCLIFFE. The President was con- reason for the pause was no secret curity assistance issue during this pe- cerned that the United States seemed to bear within the White House and the agen- riod, including Senator LINDSEY GRA- the exclusive brunt of security assistance to cies. According to Mr. Morrison, in a HAM. The process culminated on Sep- Ukraine. He wanted to see the Europeans July meeting attended by officials tember 11, 2019. On that day, the Presi- step up and contribute more security assist- throughout the executive branch agen- ance. dent spoke with Vice President PENCE Mr. HALE. We’ve often heard at the State cies, the reason provided for the pause and Senator ROB PORTMAN. The Vice Department that the President of the United by a representative of the Office of President, in NSC Senior Director Tim States wants to make sure that foreign as- Management and Budget was that the Morrison’s words, was ‘‘armed with his sistance is reviewed scrupulously and make President was concerned about corrup- conversation with President Zelensky sure that it is truly in the U.S. national in- tion in Ukraine and he wanted to make from their meeting just days earlier in terests and that we evaluate it continuously sure Ukraine was doing enough to man- Warsaw, Poland, and both the Vice and that it meets certain criteria the Presi- age that corruption. In fact, as Mr. dent has established. President and Senator PORTMAN re- Morrison testified, by Labor Day, there Mr. RATCLIFFE. And has the President lated their view of the importance of expressed that he expected our allies to give had been definitive developments to the assistance to Ukraine and con- their fair share of foreign aid as evidenced by demonstrate that President Zelensky vinced the President that the aid the point that he raised during the July 25th was committed to the issues he cam- should be disbursed immediately. After phone call to President Zelensky to that ef- paigned on: anti-corruption reforms. the meeting, President Trump termi- fect? Mr. Morrison also testified that the nated the pause, and the support Mr. HALE. The principle of fair burden- administration was working on answer- flowed to Ukraine.’’ sharing by allies and other like-minded ing the President’s concerns regarding I want to take a step back now and states is an important element of the foreign burden-sharing. Here is Mr. Morrison. assistance review. talk for a moment about why the secu- (Text of Videotape presentation:) Mr. Counsel PURPURA. The Presi- rity assistance was briefly paused— Mr. CASTOR. Was there any interagency again, in the words of the House man- dent expressed these precise concerns activity by either the State Department or agers’ own witnesses. Witness after to Senator RON JOHNSON, who wrote: the Defense Department coordinated by the witness testified that confronting He reminded me how thoroughly corrupt National Security Council to look into that Ukrainian corruption should be at the Ukraine was and again conveyed his frustra- a little bit for the President? forefront of U.S. foreign policy towards tion that Europe doesn’t do its fair share of Mr. MORRISON. We were surveying the providing military aid. data to understand who was contributing Ukraine. They also testified that the what and sort of in what categories. President had longstanding and sincere The House managers didn’t tell you about this. Why not? And President Mr. CASTOR. And so the President evinced concerns about corruption in Ukraine. concerns. The interagency tried to address The House managers, however, told Trump was right to be concerned that them? you that it was laughable to think that other countries weren’t paying their Mr. MORRISON. Yes. the President cared about corruption fair share. As Laura Cooper testified, Mr. Counsel PURPURA. How else do in Ukraine, but that is not what the U.S. contributions to Ukraine are far we know that the President was await- witnesses said. more significant than any individual ing information on burden-sharing and According to Ambassador Volker, country, and she also said EU funds anti-corruption efforts in Ukraine be- President Trump demonstrated that he tend to be on the economic side rather fore releasing the security assistance? had a very deeply rooted negative view than for defense and security. Senator Because that is what Vice President JOHNSON also confirmed that other of Ukraine based on past corruption, PENCE told President Zelensky. and that is a reasonable position, ac- countries refused to provide the lethal On September 1, 2019, Vice President defensive weapons that Ukraine needs cording to Ambassador Volker. Most PENCE met with President Zelensky. people who know anything about in its war with Russia. President Trump was scheduled to at- Ukraine would think that. Please keep in mind also that the tend the World War II commemoration Dr. Hill testified: pause of the Ukraine security assist- in Poland but instead remained in the I think the President has actually quite ance program was far from unusual or United States to manage the emer- publicly said that he was very skeptical out of character for President Trump. gency response to Hurricane Dorian. about corruption in Ukraine. And, in fact, he The American people know that the Remember, this was 3 days—3 days— is not alone, because everyone has expressed President is skeptical of foreign aid after President Zelensky learned great concerns about corruption in Ukraine. and that one of his top campaign prom- through the POLITICO article about The House managers have said the ises and priorities in office has been to the review of the security assistance. President’s concern with corruption is avoid wasteful spending of American Just as Vice President PENCE and his disingenuous. They said that President taxpayer dollars abroad. aides anticipated, Jennifer Williams Meanwhile, the same people who Trump didn’t care about corruption in testified that once the cameras left the today claimed that President Trump 2017 or 2018 and he certainly didn’t care room, the very first question that was not genuinely concerned about about it in 2019. Those were their President Zelensky had was about the burden-sharing were upset when, as a words. Not according to Ambassador status of the security assistance. The candidate, President Trump criticized Yovanovitch, however, who testified Vice President responded by asking free-riding by NATO members. that President Trump shared his con- about two things: burden-sharing and This past summer, the administra- cern about corruption directly with corruption. tion paused, reviewed, and in some President Poroshenko—President Here is how Jennifer Williams de- cases canceled hundreds of millions of Zelensky’s predecessor—in their first scribed it: meeting in the Oval Office. When was dollars in foreign aid to Afghanistan, El Salvador, Honduras, Guatemala, and And the VP responded by really expressing that meeting? In June of 2017—2017. our ongoing support for Ukraine, but want- The President also has well-known Lebanon. These are just some of the re- ing to hear from President Zelensky, you concerns about foreign aid generally. views of foreign aid undertaken at the know, what the status of his reform efforts Scrutinizing and in some cases cur- very same time that the Ukraine aid were that he could then convey back to the tailing foreign aid was a central plank was paused. President, and also wanting to hear if there

VerDate Sep 11 2014 01:33 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00007 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.011 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE S586 CONGRESSIONAL RECORD — SENATE January 27, 2020 was more that European countries could do on September 25, 2019. The White House ditioned on a statement about inves- to support Ukraine. was working to schedule the meeting tigations is completely defeated by one Vice President PENCE knows Presi- earlier at the White House or in War- straightforward fact: A bilateral meet- dent Trump, and he knew what Presi- saw, but those options fell through due ing between President Trump and dent Trump wanted to hear from Presi- to normal scheduling and a hurricane. President Zelensky was planned for dent Zelensky. The Vice President was The two Presidents met at the earliest September 1 in Warsaw—the same War- echoing the President’s two recurring convenience without President saw meeting we were just discussing— themes: corruption and burden-sharing. Zelensky ever announcing or beginning without the Ukrainians saying a word It is the same, consistent themes every any investigations. about investigations. time. The first thing to know about the al- As it turned out, President Trump Ambassador Taylor received a simi- leged quid pro quo for a meeting is that was not able to attend the meeting in lar readout of the meeting between the by the end of the July 25 call, the Warsaw because of Hurricane Dorian. Vice President and President Zelensky, President had invited President President Trump asked Vice President including the Vice President’s focus on Zelensky to the White House on three PENCE to attend in his place, but even corruption and burden-sharing. Here is separate occasions, each time without that scheduling glitch did not put off Ambassador Taylor. any preconditions. their meeting for long. President (Text of Videotape presentation:) President Trump invited President Trump and President Zelensky met at Ambassador TAYLOR. On the evening of Zelensky to an in-person meeting on the next available date, September 25, September 1st, I received a readout of the their initial April 21 call. He said: on the sidelines of the United Nations Pence-Zelensky meeting over the phone from ‘‘When you’re settled in and ready, I’d General Assembly. Mr. Morrison during which he told me that like to invite you to the White House.’’ As President Zelensky, himself, has President Zelensky had opened the meeting On May 29, the week after President said, there were ‘‘no preconditions’’ for by immediately asking the Vice President Zelensky’s inauguration, President his meeting with President Trump. about the security cooperation. The Vice Trump sent a congratulatory letter, Those are his words: ‘‘No conditions.’’ President did not respond substantively but again, inviting President Zelensky to You are probably wondering how the said that he would talk to President Trump House managers could claim there was that night. The Vice President did say that the White House. He said: President Trump wanted the Europeans to As you prepare to address the many chal- a quid pro quo for a meeting with do more to support Ukraine and that he lenges facing Ukraine, please know that the President Trump when the two Presi- wanted the Ukrainians to do more to fight American people are with you and are com- dents actually did meet without Presi- corruption. mitted to helping Ukraine realize its vast po- dent Zelensky announcing any inves- Mr. Counsel PURPURA. On Sep- tential. To help show that commitment, I tigations? Well, the House managers would like to invite you to meet with me at moved the goalpost again. They claim tember 11, based on the information the White House in Washington, D.C., as collected and presented to President that the meeting couldn’t be just an in- soon as we can find a mutually convenient person meeting with President Trump. Trump, the President lifted the pause time. on the security assistance. As Mr. Mor- What it had to be was a meeting at the Then, on July 25, President Trump Oval Office and in the White House. rison explained, ‘‘our process gave the personally invited President Zelensky President the confidence he needed to That is nonsense. to participate in a meeting for a third Putting to one side the absurdity of approve the release of the security-sec- time. He said: Whenever you would like tor assistance.’’ the House managers trying to remove a to come to the White House, feel free duly-elected President of the United The House managers say that the to call. Give us a date, and we’ll work talk about corruption and burden-shar- States from office because he met with that out. I look forward to seeing you. a world leader in one location versus ing is a ruse. No one knew why the se- Those are three separate invitations curity assistance was paused, and no another, this theory has no basis in for a meeting, all made without any fact. one was addressing the President’s con- preconditions. cerns with Ukrainian corruption and As Dr. Hill testified, what mattered During this time, and behind the was that there was a bilateral Presi- burden-sharing. The House managers’ scenes, the White House was working own evidence—their own record—tells dential meeting, not the location of the diligently to schedule a meeting be- meeting. She said: a different story, however. They didn’t tween the Presidents at the earliest tell you about this, not in 21 hours. [I]t wasn’t always a White House meeting possible date. Tim Morrison, whose re- per se, but definitely a Presidential-level, Why not? sponsibilities included helping to ar- you know, meeting with Zelensky and the The President’s concerns were ad- range head-of-state visits to the White President. I mean, it could’ve taken place in dressed in the ordinary course. The House or other head-of-state meetings, Poland, in Warsaw. It could’ve been, you President wasn’t caught, as the House testified that he understood that ar- know, a proper bilateral in some other con- managers allege. The managers are ranging the White House visit with text. But, in other words, a White House- wrong. All of this, together with what President Zelensky was a do-out that level Presidential meeting. we discussed on Saturday, dem- came from the President. The House managers didn’t tell you onstrates that there was no connection The House managers didn’t mention about Dr. Hill’s testimony. Why not? In between security assistance and inves- the work that the White House was fact, just last week they said that tigations. doing to schedule the meeting between President Zelensky still hasn’t gotten When the House managers realized President Trump and President his White House meeting. Why didn’t their ‘‘quid pro quo’’ theory on security Zelensky; did they? Why not? they tell you about Dr. Hill’s testi- assistance was falling apart, they cre- Scheduling a Presidential meeting mony so you would have the full con- ated a second alternative theory. Ac- takes time. Mr. Morrison testified that text and information? They spoke for cording to the House managers, Presi- his directorate, which was just one of over 21 hours. They couldn’t take a dent Zelensky desperately wanted a several, had a dozen schedule requests couple of minutes to give you that con- meeting at the White House with Presi- in with the President for meetings with text? How else do we know that Dr. dent Trump, and President Trump con- foreign leaders that we were looking to Hill was right? Because President ditioned that meeting on investiga- land and Ukraine was but one of those Zelensky said so on the July 25 call. tions. requests. Remember, when President Trump What about the managers’ backup ac- According to Mr. Morrison, due to invited President Zelensky to Wash- cusations? Do they fare any better both Presidents’ busy schedule, ‘‘it be- ington on the July 25 call, President than their quid pro quo for security as- came clear that the ‘earliest oppor- Zelensky said he would be ‘‘happy to sistance? No. No, they don’t. tunity for the two Presidents to meet meet with you personally’’ and offered A Presidential-level meeting hap- would be in Warsaw’ at the beginning to host President Trump in Ukraine or, pened without any preconditions at the of September.’’ on the other hand, meet with President first available opportunity in a widely The entire notion that a bilateral Trump on September 1 in Poland. That televised meeting at the United Na- meeting between President Trump and is exactly what the administration tions General Assembly in New York President Zelensky was somehow con- planned to do.

VerDate Sep 11 2014 01:33 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00008 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.012 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE January 27, 2020 CONGRESSIONAL RECORD — SENATE S587 If it weren’t for Hurricane Dorian, Here is what we know. President Get everybody—security, advance, ev- President Trump would have met with Trump invited President Zelensky to eryone—to Ukraine. Jennifer Williams President Zelensky in Poland on Sep- meet three times without pre- testified that it was very short notice, tember 1, just as President Zelensky conditions. The White House was work- so it would have been difficult for the had requested and without any pre- ing behind the scenes to schedule the Vice President to attend, particularly conditions. meeting. The two Presidents planned since they hadn’t sent out the advance As it happened, President Zelensky to meet in Warsaw, just as President team. met with the Vice President instead Zelensky had asked, and ultimately George Kent testified that the short and just a few weeks later met with met 3 weeks later without Ukraine an- notice left almost no time for either President Trump in New York—all nouncing any investigations. proper preparations or foreign delega- without anyone making any statement No one testified in the House record tions to visit and that the State De- about any investigations. And, once that the President ever said there was partment scrambled on Friday the 17th again, not a single witness in the a connection between a meeting and in- to try and figure out who was avail- House record that they compiled and vestigations. Those are the facts, plain able. Mr. Kent suggested that Sec- developed under their procedures that and simple. So much for a quid pro quo retary of Energy Perry be the anchor we have discussed and will continue to for a meeting with the President. for the delegation, as ‘‘someone who discuss, provided any firsthand evi- Before I move on, let me take a brief was a person of stature and whose job dence that the President ever linked moment to address a side allegation had relevance to our agenda.’’ Sec- the Presidential meeting to any inves- that was raised in the original whistle- retary Perry led the delegation, which tigations. blower complaint and that the House also included Ambassador Sondland, The House managers have seized managers are still trying to push. Ambassador Volker, and Senator JOHN- upon Ambassador Sondland’s claim The managers claim that President SON. Ambassador Volker testified that that Mr. Giuliani’s requests were a Trump ordered Vice President PENCE it was the largest delegation from any quid pro quo for arranging a White not to attend President Zelensky’s in- country there, and it was a high-level House visit for President Zelensky. auguration in favor of a lower ranking one. The House managers didn’t tell But, again, Ambassador Sondland was delegation in order—according to only guessing based on incomplete in- you this. Why not? them—to single a downgrading of the The claim that the President in- formation. He testified that the Presi- relationship between the United States structed the Vice President not to at- dent never told him there was any sort and Ukraine. tend President Zelensky’s inauguration of a condition for a meeting with Presi- That is not true. As I am sure every- is based on House manager assump- dent Zelensky. Why, then, did he think one in this room can greatly appre- there was one? tions with no evidence that the Presi- ciate, numerous factors had to align In his own words, Ambassador dent did something wrong. Sondland said that he could only re- for the VP to attend. Finally, as I am coming to the end, if First, dates of travel were limited. peat what he heard ‘‘through Ambas- the evidence doesn’t show a quid pro For national security reasons, the sador Volker from Giuliani.’’ So he quo, what does it show? Unfortunately President and Vice President generally didn’t even hear from Mr. Giuliani for the House managers, one of the few avoid being out of the country at the himself. But Ambassador Volker, who things that all of the witnesses agreed is the supposed link between Mr. same time for more than a few hours. on was that President Trump has The President had scheduled trips to Giuliani and Ambassador Sondland, strengthened the relationship between Europe and Japan during the period thought no such thing. Ambassador the United States and Ukraine and when our Embassy in Ukraine antici- Volker testified unequivocally that that he has been a more stalwart friend pated the Ukrainian inauguration there was no linkage between the to Ukraine and a more fierce opponent meeting with President Zelensky and would occur, at the end of May or in of Russian aggression than President Ukrainian investigations. early June. Jennifer Williams testified Obama. The House managers repeat- I am going to read the full questions that the Office of the Vice President edly claimed that President Trump and answers because this passage is advised the Ukrainians that, if the doesn’t care about Ukraine. They are key. This is from Ambassador Volker’s Vice President were to participate in attributing views to President Trump deposition testimony. the inauguration, the ideal dates would that are contrary to his actions. More Question. Did President Trump ever with- be around May 29, May 30, May 31, or importantly, they are contrary to the hold a meeting with President Zelensky or June 1, when the President would be in House managers’ own evidence. delay a meeting with President Zelensky the United States. She said ‘‘if it But don’t take my word for it. Am- until the Ukrainians committed to inves- wasn’t one of those dates, it would be bassadors Yovanovitch, Taylor, and tigate the allegations that you just described very difficult or impossible’’ for the Volker all testified to the Trump ad- concerning the 2016 Presidential election? Vice President to attend. ministration’s positive new policy to- Answer. The answer to the question is no, Second, the House managers act as if if you want a yes-or-no answer. But the rea- ward Ukraine based especially on son the answer is no is we did have difficulty no other priorities in the world could President Trump’s decision to provide scheduling a meeting, but there was no link- compete for the administration’s time. lethal aid to Ukraine. Ambassador age like that. The Vice President’s Office was simul- Taylor testified that President Question. You said that you were not taneously planning a competing trip Trump’s policy toward Ukraine was a aware of any linkage between delaying the for May 30 in Ottawa, Canada, to par- substantial improvement over Presi- Oval Office meeting between President ticipate in an event supporting passage Trump and President Zelensky and the dent Obama’s policy. Ambassador Ukrainian commitment to investigate the of the United States-Mexico-Canada Volker agreed that America’s policy two allegations as you described them, cor- Agreement. Ultimately, the Vice Presi- toward Ukraine has been strengthened rect? dent traveled to Ottawa on May 30 to under President Trump, whom he cred- Answer. Correct. meet with Prime Minister Justin ited with approving each of the deci- Over the past week, on no fewer than Trudeau and to promote the passage of sions made along the way. 15 separate occasions, the House man- the USMCA. This decision, as you Ambassador Yovanovitch testified agers played a video of Ambassador know, advanced the top administration that President Trump’s decision to pro- Sondland saying that the announce- priority and an issue President Trump vide lethal weapons to Ukraine meant ment of the investigations was a pre- vigorously supported. that our policy actually got stronger requisite for a meeting or call with the What you did not hear from the over the last 3 years. She called the President—15 times. They never once House managers was that the Ukrain- policy shift that President Trump di- read to you the testimony that I just ian inauguration dates did not go as rected very significant. Let’s hear from did. They never once read to you the planned. On May 16—May 16—the Ambassador Taylor, Ambassador testimony in which Ambassador Volker Ukrainians surprised everyone and Volker, and Ambassador Yovanovitch. refuted what Ambassador Sondland scheduled the inauguration for just 4 (Text of Videotape presentation:) claimed he heard from Ambassador days later, on May 20—Monday, May 20. Ms. STEFANIK. The Trump administra- Volker. So think about that: May 16, May 20. tion has indeed provided substantial aid to

VerDate Sep 11 2014 01:33 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00009 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.014 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE S588 CONGRESSIONAL RECORD — SENATE January 27, 2020 Ukraine in the form of defensive lethal aid, There being no objection, at 2:52 household name. He is a legendary Fed- correct? p.m., the Senate, sitting as a Court of eral prosecutor who took down the Ambassador TAYLOR. That is correct. Impeachment, recessed until 3:17 p.m.; Mafia, corrupt public officials, Wall Ms. STEFANIK. And that is more so than Street racketeers. He is the crime- the Obama administration, correct? whereupon the Senate reassembled Ambassador TAYLOR. The Trump admin- when called to order by the CHIEF JUS- busting mayor who cleaned up New istration— TICE. York and turned it around, a national Ms. STEFANIK. Defensive lethal aid. The CHIEF JUSTICE. The majority hero, America’s mayor after 9/11, and, Ambassador TAYLOR. Yes. leader is recognized. after that, an internationally recog- Ambassador VOLKER. President Trump Mr. MCCONNELL. It is my under- nized expert on fighting corruption. To approved each of the decisions made along standing that, having consulted with be sure, Mr. Giuliani has always been the way, providing lethal defensive equip- the President’s lawyers, we are looking somewhat of a controversial figure for ment. his hard-hitting, take-no-prisoners ap- Ambassador YOVANOVITCH. And the at around 6 p.m. for dinner, and we will Trump administration strengthened our pol- plow right through until 6 p.m. proach, but it is no stretch to say that icy by approving the provision to Ukraine of The CHIEF JUSTICE. Thank you. he was respected by friend and foe antitank missiles known as Javelins. President’s counsel can continue alike for his intellect, his tenacity, his They are obviously tank busters. And so, if with their case. accomplishments, and his fierce loy- the war with Russia all—all of a sudden ac- Mr. Counsel SEKULOW. Thank you, alty to his causes and his country. celerated in some way and tanks come over Mr. Chief Justice. And then, the unthinkable happened. the horizon, Javelins are a very serious Mr. Chief Justice, Members of the He publicly supported the candidacy of weapon to deal with that. Senate, House managers, there has President Trump—the one who was not Mr. Counsel PURPURA. Ukraine is been a lot of talk in both the briefs and supposed to win. And then, in the better positioned to fight Russia today in the discussions over the last week spring of 2018, he stood up to defend the than it was before President Trump about one of our colleagues, former President—successfully, it turns out— took office. As a result, the United mayor of New York, Rudy Giuliani. against what we all now know is the States is safer too. The House man- Mayor Giuliani served as one of the real debunked conspiracy theory; that agers did not tell you about this testi- leaders of the President’s defense team the Trump campaign colluded with mony from Ambassadors Taylor, during the Mueller investigation. He is Russia during the 2016 campaign. The Volker, and Yovanovitch. Why not? mentioned 531 times—20 in the brief House managers would have you be- These are the facts, as drawn from and about 511, give or take, in the ar- lieve that Mr. Giuliani is at the center the House managers’ own record on guments, including the motion day. of this controversy. They have anoint- which they impeached the President. We had a robust team that worked on ed him the proxy villain of the tale, the This is why the House managers’ first the President’s defense during the leader of a rogue operation. Their pres- Article of Impeachment must fail, for Mueller probe, consisting of Mayor entations were filled with ad hominem the six reasons I set forth when I began Giuliani, Andrew Ekonomou, Stuart attacks and name-calling: cold-blooded on Saturday: Roth, Jordan Sekulow, Ben Sisney, political operative, political bagman. There was no linkage between inves- Mark Goldfeder, Mayor Giuliani, of But I suggest to you that he is front tigations and security assistance or a course, and Marty Raskin, as well as and center in their narrative for one meeting on the July 25 call. The Jane Raskin. Jane Serene Raskin was reason and one reason alone: to dis- tract from the fact that the evidence Ukrainians said there was no quid pro one of the leading attorneys on the does not support their claims. quo and they felt no pressure. The top Mueller investigation for the defense of Ukrainians did not even know that se- So what is the first tell that Mr. the President. Giuliani’s role in this may not be all curity assistance was paused until The issue of Mayor Giuliani has come that it is cracked up to be? They didn’t more than a month after the July 25 up here in this Chamber a lot. We subpoena him to testify. In fact, Mr. call. The House managers’ record re- thought it would be appropriate now to flects that anyone who spoke with the SCHIFF and his committee never even turn to that issue, the role of the invited him to testify. They took a President said that the President made President’s lawyer, his private counsel, clear that there was no linkage. The stab at subpoenaing his documents in this proceeding. I would like to yield back in September, and when his law- security assistance flowed, and the my time, Mr. Chief Justice, to Jane Se- Presidential meeting took place, all yer responded with legal defenses to rene Raskin. the production, the House walked without any announcement of inves- Ms. Counsel RASKIN. Mr. Chief Jus- tigations. And President Trump has en- away. But if Rudy Giuliani is every- tice, Majority Leader MCCONNELL, thing they say he is, don’t you think hanced America’s support for Ukraine Members of the Senate. in his 3 years in office. they would have subpoenaed and pur- I expect you have heard American sued his testimony? Ask yourselves, These facts all require that the first poet Carl Sandburg’s summary of the Article of Impeachment fail. You have why didn’t they? trial lawyer’s dilemma: In fact, it appears the House com- already heard and will continue to hear If the facts are against you, argue the law. mittee wasn’t particularly interested from my colleagues on why the second If the law is against you, argue the facts. If in presenting you with any direct evi- article must fail. Once again, this is the facts and the law are against you, pound dence of what Mayor Giuliani did or the case that the House managers the table and yell like hell. why he did it. Instead, they ask you to chose to bring. This is the evidence Well, we have heard the House man- rely on hearsay, speculation, and as- they brought before the Senate. agers do some table-pounding and a lit- sumption—evidence that would be in- The very heavy burden of proof rests tle yelling, but, in the main, they have admissible in any court. with them. They say their case is over- used a different tactic here, a tactic fa- For example, the House managers whelming and uncontested. It is not. miliar to trial lawyers, though not suggest that Mr. Giuliani, at the Presi- They say they have proven each of the mentioned by Mr. Sandburg. If both dent’s direction, demanded that articles against President Trump. They the law and the facts are against you, Ukraine announce an investigation of have not. The facts and evidence of the present a distraction, emphasize a sen- the Bidens and Burisma before agree- case the House managers have brought sational fact or perhaps a colorful or ing to a White House visit. They base exonerate the President. controversial public figure who appears that on a statement to that effect by Thank you for your attention. on the scene, then distort certain facts, Ambassador Sondland. Mr. Chief Justice, I think we are ignore others, even when they are the But what the House managers don’t ready for a break. most probative, make conclusory tell you is that Sondland admitted he The CHIEF JUSTICE. The majority statements, and insinuate the shiny was speculating about that. He pre- leader is recognized. object is far more important than the sumed that Mr. Giuliani’s requests RECESS actual facts allow; in short, divert at- were intended as a condition for a Mr. MCCONNELL. Mr. Chief Justice, tention from the holes in your case. White House visit. Even worse, his as- colleagues, we will take a 15-minute Rudy Giuliani is the House man- sumption was on thirdhand informa- break. agers’ colorful distraction. He is a tion. As he put it, the most he could do

VerDate Sep 11 2014 03:51 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00010 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.015 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE January 27, 2020 CONGRESSIONAL RECORD — SENATE S589 is repeat what he heard through Am- think that Mayor Giuliani had vember 2018, when he was contacted by bassador Volker from Giuliani, whom parachuted into the President’s orbit someone he describes as a well-known he presumed spoke to the President on in the spring of 2019 for the express investigator. The Washington Post and the issue. And by the way, as Mr. Pur- purpose of carrying out a political hit many other news outlets reported the pura has explained, the person who was job. They would have you believe that same information. actually speaking to Mr. Giuliani, Am- Mayor Giuliani was only there to dig So, yes, Mayor Giuliani was Presi- bassador Volker, testified clearly that up dirt against former Vice President dent Trump’s personal attorney, but he there was no linkage between the Biden because he might be President was not on a political errand. As he has meeting with President Zelensky and Trump’s rival in the 2020 election. stated repeatedly and publicly, he was Ukrainian investigations. Of course, Mr. Giuliani’s intent is no doing what good defense attorneys do. The House managers also make much small matter here. It is a central and He was following a lead from a well- of a May 23 White House meeting dur- essential premise of the House man- known private investigator. He was ing which the President suggested to agers’ case that Mr. Giuliani’s motive gathering evidence regarding Ukrain- his Ukraine working group, including in investigating Ukrainian corruption ian election interference to defend his Ambassadors Volker and Sondland, and interference in the 2016 election client against the false allegations that they should talk to Rudy. The was an entirely political one, under- being investigated by Special Counsel managers told you that President taken at the President’s direction. But Mueller, but the House managers didn’t Trump gave a directive and a demand what evidence have the managers actu- even allude to that possibility. Instead, that the group needed to work with ally offered you to support that propo- they just repeated their mantra that Giuliani if they wanted him to agree sition? On close inspection, it turns out Giuliani’s motive was purely political. with the Ukraine policy they were pro- virtually none. They just say it over That speaks volumes about the bias posing, but those words, ‘‘directive’’ and over and over. with which they have approached their and ‘‘demand,’’ are misleading. They And they offer you another false di- mission. misrepresent what the witnesses actu- chotomy. Either Mr. Giuliani was act- The bottom line is, Mr. Giuliani de- ally said. ing in an official capacity to further fended President Trump vigorously, re- Ambassador Volker testified that he the President’s foreign policy objec- lentlessly, and publicly throughout the understood, based on the meeting, that tives or he was acting as the Presi- Mueller investigation and in the non- Giuliani was only one of several dent’s personal attorney, in which stop congressional investigations that sources of information for the Presi- case, they conclude, ipse dixit, his mo- followed, including the attempted dent, and the President simply wanted tive would only be to further the Presi- Mueller redo by the House Judiciary officials to speak to Mr. Giuliani be- dent’s political objectives. Committee, which the managers would cause he knows all these things about The House managers then point to apparently like to sneak in the back Ukraine. As Volker put it, the Presi- various of Mr. Giuliani’s public state- door here. dent’s comment was not an instruction ments in which he is clear and com- The House managers may not like his but just a comment. Ambassador pletely transparent about the fact that style—you may not like his style—but Sondland agreed. He testified that he he is, indeed, the President’s personal one might argue that he is everything didn’t take it as an order, and he added attorney. There you have it. Giuliani Clarence Darrow said a defense lawyer that the President wasn’t even specific admits he is acting as the President’s must be—outrageous, irreverent, blas- about what he wanted us to talk to personal attorney, and therefore he had phemous, a rogue, a renegade. The fact Giuliani about. to have been acting with a political is, in the end, after a 2-year siege on So it may come as no surprise to you motive to influence the 2020 election. the Presidency, two inspector general that after the May 23 meeting, the one No other option, right? Wrong. There reports, and a $32 million special coun- during which the House managers told is, of course, another obvious answer to sel investigation, it turns out Rudy you the President demanded that his the question, what motivated Mayor was spot-on. Ukraine team talk to Giuliani, neither Giuliani to investigate the possible in- It seems to me we are keeping score Volker nor Sondland even followed up volvement of Ukrainians in the 2016 on who got it right on allegations of with Mr. Giuliani until July, and the election? The House managers know FISA abuse, egregious misconduct at July followup by Mr. Volker happened what the answer is. It is in plain sight, the highest level of the FBI, alleged only because the Ukrainian Govern- and Mr. Giuliani has told any number collusion between the Trump campaign ment asked to be put in touch with of news outlets exactly when and why and Russia, and supposed obstruction him. Volker testified that President he became interested in the issue. of justice in connection with the spe- Zelensky’s senior aide, Andriy Yermak, It had nothing to do with the 2020 cial counsel’s investigation. The score approached him to ask to be connected election. Mayor Giuliani began inves- is Mayor Giuliani 4, Mr. SCHIFF 0. But to Mr. Giuliani. tigating Ukraine corruption and inter- in this trial, in this moment, Mr. House Democrats also rely on testi- ference in the 2020 election way back in Giuliani is just a minor player—that mony that Mayor Giuliani told Ambas- November of 2018—a full 6 months be- shiny object designed to distract you. sadors Volker and Sondland that, in fore Vice President Biden announced Senators, I urge you most respect- his view, to be credible, a Ukrainian his candidacy and 4 months before the fully: Do not be distracted. statement on anti-corruption should release of the Mueller report, when the Thank you, Mr. Chief Justice. specifically mention investigations biggest false conspiracy theory in cir- I yield back to Mr. Sekulow. into 2016 election interference and culation that the Trump campaign had Mr. Counsel SEKULOW. Mr. Chief Burisma. colluded with Russia during the 2016 Justice, Members of the Senate, and But when Ambassador Volker was campaign was still in wide circulation. House managers, we are going to now asked whether he knew if Giuliani was As The Hill reported: ‘‘As President move to a section dealing with the law. ‘‘conveying messages that President Trump’s highest profile defense attor- There are two issues in particular that Trump wanted conveyed to the Ukrain- ney, the former New York City mayor, my colleague Pat Philbin, the Deputy ians,’’ Volker said that he did not have often known simply as ‘Rudy,’ believed White House Counsel, will be address- that impression. He believed that the Ukrainians’ evidence could assist ing, issues involving due process and Giuliani was doing his own commu- in his defense against the Russia collu- legal issues specifically dealing with nication about what he believed he was sion investigation and former Special the second Article of Impeachment: interested in. Counsel Robert Mueller’s final report.’’ Obstruction of Congress. So I yield my But even more significant than the So Giuliani began to check things time now, Mr. Chief Justice, to Mr. reliance on presumptions, assumptions, out in late 2018 and early 2019. Philbin. and unsupported conclusions is the The genesis of Mayor Giuliani’s in- Mr. Counsel PHILBIN. Mr. Chief Jus- managers’ failure to place in any fair vestigation was also reported by nu- tice, Senators, Majority Leader context Mr. Giuliani’s actual role in merous other media outlets, including MCCONNELL, Minority Leader SCHUMER, exploring Ukrainian corruption. To CNN, which related that Giuliani’s role the other day, as we opened our presen- hear their presentation, you might in Ukraine could be traced back to No- tation, I touched on two areas: some of

VerDate Sep 11 2014 01:33 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00011 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.017 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE S590 CONGRESSIONAL RECORD — SENATE January 27, 2020 the due process violations that charac- Judge Starr, the House Democrats es- there have been public hearings, the terized the proceedings in the House sentially abandoned the principles that President has been represented by and some of the fundamental have governed impeachment inquiries counsel and could cross-examine wit- mischaracterizations and errors that in the House for over 150 years. I will nesses. Why did there have to be pub- underpinned the House Democrats’ touch on just a few points and respond lic, televised hearings where the Presi- charge for obstruction. I will complete to a couple of points that the House dent was excluded? That was nothing the presentation today on those points managers have made. more than a show trial. to round out some of the fundamen- The first is that, in denying due proc- I also addressed the other day the tally unfair procedures that were used ess rights, the House proceedings were House managers’ contention that they in the House and their implications in a huge reversal from the positions the had offered the President due process; this proceeding before you now and House Democrats themselves had that when things reached the third also address in detail the purported taken in the recent past, particularly round of hearings in front of the House charges of obstruction in the second in the Clinton impeachment pro- Judiciary Committee, Manager NADLER Article of Impeachment. ceeding. offered the President due process. I ex- On due process, there are three fun- I believe we have Manager NADLER’s plained why that was illusory. There damental errors that affected the pro- description of what was required. Per- was no genuine offer there because, be- ceedings in the House. The first is, as I haps not. Manager NADLER was ex- fore any hearings began, other than the explained on Saturday, the impeach- plaining that due process requires at a law professor’s seminar on December 4, ment inquiry was unauthorized and un- minimum notice of the charges against the Speaker had already determined constitutional from the beginning. you, the right to be represented by the outcome, had already said there No committee of the House has the counsel, the right to cross-examine were going to be Articles of Impeach- power to launch an inquiry under the witnesses against you, and the right to ment, and the Judiciary Committee House’s impeachment power unless the present evidence. All of those rights had informed the counsel’s office that they had no plans to call any fact wit- House itself has taken a vote to give were denied to the President. that authority to a committee. I noted Now, one of the responses that the nesses or have any factual hearings whatsoever. It was all done. It was that, in cases such as Rumely v. United managers have made to the defect that locked in. It was baked. States and United States v. Watkins, we pointed out in the secret pro- There was something else hanging ceedings, where Manager SCHIFF began the Supreme Court has set out these over that when they had purportedly these hearings in the basement bunker, principles, general principles derived offered to allow the President some due is that, well, that was really just best from the Constitution, which assign process rights, and that was a special authority to each Chamber of the legis- investigative practice; they were oper- provision in the rules for the House Ju- lative branch—to the House and to the ating like a grand jury. Don’t be fooled diciary Committee proceedings—also Senate—but not to individual members by that. Those hearings operated noth- unprecedented—that allowed the House or to subcommittees. For an authority ing like a grand jury. Judiciary Committee to deny the A grand jury has secrecy primarily of the House to be transferred to a President any due process rights at all committee, the House has to vote on for two reasons: to protect the direc- if he continued to refuse to turn over that. tion of the investigation so others documents or not allow witnesses to The DC Circuit has distilled the prin- won’t know what witnesses are being testify, so that if the President didn’t ciples from those cases this way: ‘‘To called in and what they are saying—to give up his privileges and immunities issue a valid subpoena, a committee or keep that secret for the prosecutor to that he had been asserting over execu- a subcommittee must conform strictly be able to keep developing the evi- tive branch confidentiality—if he to the resolution establishing its inves- dence—and to protect the accused be- didn’t comply with what the House tigatory powers.’’ That was the prob- cause the accused might not ever be in- Democrats wanted—then it was up to lem here in that there was no such res- dicted. Chairman NADLER, potentially, to say: olution. There was no vote from the In this case, all of that information No rights at all. There is a term for House authorizing the issuance of sub- was made public every day. The House that in the law. It is called an uncon- poenas under the impeachment power. Democrats destroyed any legitimate stitutional condition. You can’t condi- So this inquiry began with nearly two analogy to a grand jury, because that tion someone’s exercise of some rights dozen invalid subpoenas. The Speaker was all public. They made no secret on his surrendering other constitu- had the House proceed on nothing more that the President was the target. tional rights. You can’t say: We will let than a press conference in which she They issued vile calumnies about him you have due process in this way if you purported to authorize committees to every day. They didn’t keep the direc- waive your constitutional privilege on begin an impeachment power. Under tion of their investigation secret. Their another issue. the Constitution, she lacked that au- witness lists were published daily, and The last point I will make about due thority. the direction of the investigation was process is this: It is important to re- As the chairman of the House Judici- open. The testimony that took place member that due process is enshrined ary Committee, Peter Rodino, pointed was selectively leaked to a compliant in the Bill of Rights for a reason. It is out during the Nixon impeachment in- media to establish a false narrative not that process is just an end in itself. quiry: about the President. Instead, it is a deep-seated belief in our Such a resolution [from the House] has al- If that sort of conduct had occurred legal tradition that fair process is es- ways been passed by the House. . . . It is a in a real grand jury, that would have sential for accurate decision making. necessary step if we are to meet our obliga- been a criminal violation. Prosecutors Cross-examination of witnesses, in tion. can’t do that. Under rule 6(e) of the particular, is one of the most impor- So we began this process with unau- Federal criminal rules, it is a criminal tant procedural protections for any thorized subpoenas that imposed no offense to be leaking what takes place American. The Supreme Court has ex- compulsion on the executive branch to in a grand jury. plained that, for over 250 years, our respond with documents or witnesses. I Also, the grand jury explanation pro- legal tradition has recognized cross-ex- will be coming back to that point, that vides no rationale whatsoever for this amination as the greatest legal engine threshold foundational point, when we second round of hearings. Remember, ever invented for the discovery of get to the obstruction charge. after the basement bunker—after the truth. The second fundamental due process secret hearings where the testimony So why do House Democrats jettison error is that the House Democrats de- was prescreened—then the same wit- every precedent and every principle of nied the President basic due process re- nesses who had already been deposed due process in the way they devise quired by the Constitution and by the were put on in a public hearing where these hearing procedures? Why did fundamental principles of fairness in the President was still excluded. they devise a process that kept the the procedures that they used for the Ask yourself, what was the reason for President blocked out of any hearings hearings. I am not going to go back in that? In every prior Presidential im- for 71 of the 78 days of the so-called in- detail over those. As we heard from peachment in the modern era where vestigation?

VerDate Sep 11 2014 01:33 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00012 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.019 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE January 27, 2020 CONGRESSIONAL RECORD — SENATE S591 I would submit because their process Chamber should not put its imprimatur ion from the Department of Justice’s was never about finding truth. Their on a process in the House that would Office of Legal Counsel. process was about achieving a predeter- force this Chamber to take on that So the first is executive branch offi- mined outcome on a timetable and role. cials declined to comply with sub- having it done by Christmas, and that Now, I will move on to the charge of poenas that had not been authorized, is what they achieved. obstruction in the second Article of and that is the point I made at the be- Now, the third fundamental due proc- Impeachment. ginning. There was no vote from the ess error is that the whole foundation Accepting that Article of Impeach- House. Without a vote from the House, of these proceedings was also tainted ment would fundamentally damage the subpoenas that were issued were beyond repair because an interested separation of powers under the Con- not authorized. And I pointed out that fact witness supervised and limited the stitution by permanently altering the in an October 18 letter from White course of the factual discovery, the relationship between the executive and House Counsel that specific ground was course of the hearings. I explained the the legislative branches. In the second explained. other day that Manager SCHIFF had a article, House Democrats are trying to And it wasn’t just from the White reason, potentially, because of his of- impeach the President for resisting le- House counsel. There were other let- fice’s contact with the so-called whis- gally defective demands for informa- ters. On the screen now is an October 15 tleblower and what was discussed and tion by asserting established legal de- letter from OMB, which explains: how the complaint was framed, which fenses and immunities based on legal Absent a delegation by a House rule or a all remained secret, to limit inquiry advice from the Department of Jus- resolution of the House, none of your com- into that, which is relevant. tice’s Office of Legal Counsel. In es- mittees have been delegated jurisdiction to The whistleblower began this whole sence, the approach here is that House conduct an investigation pursuant to the im- process. His bias, his motive, why he Democrats are saying: When we de- peachment power under article I, section 2 of was doing it, what his sources were— mand documents, the executive branch the Constitution. that is relevant to understand what must comply immediately, and the as- The letter went on to explain that generated this whole process, but there sertions of privilege or defenses to our legal rationale—not blanket defiance. was no inquiry into that. subpoenas are further evidence of ob- There were specific exchanges of let- So what conclusion does this all lead struction. We don’t have to go through ters explaining these legal grounds for to—all of these due process errors that the constitutionally mandated accom- resisting. have infected the proceeding up to modations process to work out an ac- The second ground, the second prin- now? ceptable solution with the executive ciple that the Trump administration I think it is important to recognize branch. We don’t have to go to the asserted was that some of these sub- the right conclusion is not that this courts to establish the validity of our poenas purported to require the Presi- body, this Chamber, should try to redo subpoenas. dent’s senior advisers, his close advis- everything—to start bringing in new At one point, Manager SCHIFF said ers, to testify. evidence, bring in witnesses because that anything that makes the House Following at least 50 years of prece- the President wasn’t allowed witnesses even contemplate litigation is evidence dent, the Department of Justice’s Of- below and redo the whole process. And of obstruction. Instead, the House fice of Legal Counsel advised that that is for a couple of reasons. claims it can jump straight to im- three senior advisers to the President— One is, first, as my colleagues have peachment. the Acting White House Chief of Staff, demonstrated, despite the one-sided, What this really means, in this case, the Legal Advisor to the National Se- unfair process in the House, the record is that they are saying for the Presi- curity Council, and the Deputy Na- that the House Democrats collected dent to defend the prerogatives of his tional Security Advisor—were abso- through that process already shows office, to defend the constitutionally lutely immune from compelled con- that the President did nothing wrong. grounded principles of executive gressional testimony. And based on It already exonerates the President. branch privileges of immunities is an that advice from the Office of Legal But the second and more important impeachable offense. Counsel, the President directed those reason is because of the institutional If this Chamber accepts that premise, advisers not to testify. implications it would have for this that what has been asserted here con- Administrations of both political Chamber. Whatever precedent is set, stitutes an impeachable offense, it will parties have asserted this immunity whatever this body accepts now as a forever damage the separation of pow- since the 1970s. President Obama as- permissible way to bring an impeach- ers. It will undermine the independence serted it as to the Director of the Of- ment proceeding and to bring it to this of the executive and destroy the fice of Political Strategy and Out- Chamber becomes the new normal. And bounds between the legislative and ex- reach. President George W. Bush as- if the new normal is going to be that ecutive branches that the Framers serted it as to his former counsel and there can be an impeachment pro- crafted in the Constitution. to his White House Chief of Staff. ceeding in the House that violates due As Professor Turley testified before President Clinton asserted it as to two process, that doesn’t provide the Presi- the House Judiciary Committee, ‘‘bas- of his counsel. President Reagan as- dent or another official being im- ing impeachment on this obstruction serted it as to his counsel, Fred Field- peached due process rights, that fails theory would itself be an abuse of ing, and President Nixon asserted it. to conduct a thorough investigation, power . . . by Congress.’’ This is not something that was just that doesn’t come here with facts es- And I would like to go through that made up recently. There is a decades- tablished, that then this body should and unpack and explain something. I long history of the Department of Jus- become the investigatory body and will start by outlining what the Trump tice providing the opinion that senior start redoing what the House didn’t do administration actually did in response advisers to the President are immune and finding new witnesses and doing to subpoenas, because there are three from compelled congressional testi- things over and getting new evidence, different actions—three different le- mony, and it is the same principle that then, that is going to be the new nor- gally based assertions for resisting dif- was asserted here. mal, and that will be the way that this ferent subpoenas that the Trump ad- There are important rationales be- Chamber has to function, and there ministration made. hind this immunity. One is that the will be a lot more impeachments com- I pointed out on Saturday that there President’s most senior advisers are es- ing because it is a lot easier to do an has been this constant refrain from the sentially his alter egos, and allowing impeachment if you don’t have to fol- House Democrats that there was just Congress to subpoena them and compel low due process and then come here blanket defiance, blanket obstruction, them to come testify would be tanta- and expect the Senate to do the work as if it were unexplained obstruction— mount to allowing Congress to sub- that the House didn’t do. just, we won’t cooperate with that war- poena the President and force him to I submit that is not the constitu- rant. And that is not true. There were come testify, but that in separation of tional function of this Chamber sitting very specific legal grounds provided, powers would not be tolerated. Con- as a Court of Impeachment, and this and each one was supported by an opin- gress could no more do that with the

VerDate Sep 11 2014 01:33 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00013 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.021 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE S592 CONGRESSIONAL RECORD — SENATE January 27, 2020 President than the President could week, suggested that executive privi- the President was consulting with the force Members of Congress to come to lege was a distraction, and Manager Department of Justice, receiving ad- the White House and answer to him. NADLER called it ‘‘nonsense.’’ vice from the very respected Office of There is also a second and important Not at all—it is a principle recog- Legal Counsel, and following that ad- rationale behind this immunity, and nized by the Supreme Court—a con- vice about the constitutional preroga- that relates to executive privilege. The stitutional principle grounded in sepa- tives of his office and the constitu- immunity protects the same interests ration of powers. tional prerogatives of the executive that underlie executive privilege. The They also asserted that this immu- branch. Again, administrations of both Supreme Court has recognized execu- nity has been rejected by every court political parties have recognized the tive privilege that protects the con- that has addressed it, as if to make it important role that agency counsel fidentiality of the communications seem that lots of courts have addressed plays. with the President and deliberations this. They have all said that this the- In the Obama administration, the Of- within his executive branch. As the ory just doesn’t fly. That is not accu- fice of Legal Counsel stated that the Court put it in United States v. Nixon, rate. That is not true. exclusion of agency counsel ‘‘could po- ‘‘The privilege is fundamental to the In fact, in most instances, once the tentially undermine . . . the Presi- operation of government and inex- President asserts immunity for a sen- dent’s constitutional authority to con- tricably rooted in the separation of ior adviser, the accommodations proc- sider and assert executive privilege powers under the Constitution.’’ ess between the executive branch and where appropriate.’’ So the Supreme Court has recognized the legislature begins, and there is usu- So why is agency counsel important? the executive needs this privilege to be ally some compromise to allow, per- As I tried to explain, the executive able to function. It is rooted in the sep- haps, some testimony, not in open privilege of confidentiality for commu- aration of powers. hearing but in a closed hearing or a nications with the President for inter- As Attorney General Janet Reno ad- deposition, perhaps to provide some nal deliberative communications of the vised President Clinton, ‘‘immunity other information instead of live testi- executive branch—those are important such advisers enjoy from testimonial mony. There is a compromise. legal rights. They are necessary for the compulsion by a congressional com- But in the only two times it has been proper functioning of the executive mittee is absolute and may not be litigated, district courts, it is true, re- branch, and the agency counsel is es- overborne by competing congressional jected the immunity. One was in a case sential to protect those legal rights. interests.’’ involving former counsel to George W. When an individual employee goes in So that is Attorney General Janet Bush, Harriet Miers. The district court to testify, he or she might not know— Reno advising President Clinton. This rejected the immunity, but imme- probably would not know—where is the is not a partisan issue. This is not a diately on appeal, the Court of Appeals line for what is covered by executive Republican or Democrat issue. Admin- of the DC Circuit stayed that decision. privilege or deliberative process privi- istrations of both parties have asserted And that decision means—to stay that lege—not things the employees nec- this principle of immunity for senior district court decision—that the appel- essarily know, and their personal coun- advisers. late court thought there was a likeli- sel, even if they are permitted to have And why does it matter? It matters hood of success on appeal, that the ex- their personal counsel with them— because the Supreme Court has ex- ecutive branch might succeed, or, at a same thing. Most personal attorneys plained that the fundamental principle behind executive privilege is that it is minimum, that the issue of immunity for employees don’t know the finer necessary to have confidentiality in presented ‘‘questions going to the mer- points of executive branch confiden- communications and deliberations in its so serious, substantial, difficult, tiality interests or deliberative process order to have good and worthwhile de- and doubtful as to make them a fair privilege. It is also not their job to pro- liberations, in order to have people pro- ground for litigation.’’ The first deci- tect those interests. They are the per- vide their candid advice to the Presi- sion was stayed. sonal lawyer for the employee who is dent. Because if they knew that what The second district court decision is testifying, trying to protect that em- they were going to say was going to be still being litigated right now. It is the ployee from potential legal con- on the front page of the Washington McGahn case that the House has sequences. Post the next day or the next week, brought, trying to get testimony from We usually have lawyers to protect they wouldn’t tell the President what former counsel to President Trump, legal rights, so it makes sense when they actually thought. If you want to Donald McGahn. That case was just ar- there is an important legal and con- have good decision making, there has gued in the DC Circuit on January 3. stitutionally based right at stake—the to be that zone of confidentiality. So there is no established law sug- executive privilege—that there should This is the way the Supreme Court gesting that this immunity somehow be a lawyer there to protect that right put it: ‘‘Human experience teaches that has been rejected by the court. It is for the executive branch, and that is those who expect public dissemination still being litigated right now. It is an the principle that the Office of Legal of their remarks may well temper can- immunity that is a standard principle Counsel enjoys. dor with a concern for appearances and asserted by every administration in This also doesn’t raise any insur- for their own interests to the det- both parties for the past 40 years. As- mountable problems for congressional riment of the decision-making proc- serting that principle cannot be treat- investigations for finding information. ess.’’ ed as obstruction of Congress. In fact, just as recently as April of 2019, That was also from United States v. The third action that the President the House Committee on Oversight and Nixon. took—the administration took—re- Government Reform reached an accom- So those are exactly the interests lated to the fact that House Demo- modation with the Trump administra- that are protected by having senior ad- crats’ subpoenas tried to shut out exec- tion after the administration had de- visers to the President be immune from utive branch counsel, agency counsel clined to make someone available for a compelled congressional testimony. from the depositions of executive deposition because of the lack of agen- Because once someone is compelled to branch employees. Now, the Office of cy counsel. That issue was worked out sit in the witness seat and start an- Legal Counsel concluded that congres- and accommodation was made, and swering questions, it is very hard for sional committees may not bar agency there was some testimony provided in them to protect that privilege, to make counsel from assisting an executive other circumstances. So it doesn’t al- sure that they don’t start revealing branch witness without contravening ways result in the kind of escalation something that was discussed. the legitimate prerogatives of the exec- that was seen here—straight to im- So for a small circle of those close to utive branch and that attempting to peachment. The accommodation proc- the President, for the past 40 to 50 enforce a subpoena while barring agen- ess can work things out. years, administrations of both parties cy counsel would be ‘‘unconstitu- House Democrats have pointed to a have insisted on this principle. tional.’’ House rule that excludes agency coun- Now, the other night, House man- The President relied on that legal ad- sel, but, of course, that House rule can- agers, when we were here very late last vice here. As Judge Starr pointed out, not override a constitutional privilege.

VerDate Sep 11 2014 01:33 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00014 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.022 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE January 27, 2020 CONGRESSIONAL RECORD — SENATE S593 So those are the three principles that tional demands into a supposed basis when sued in the McGahn case, has the Trump administration asserted. for removing the President from office. taken the view that those cases are not Now I would like to turn to the claim It would effectively create for us the justiciable in article III courts. That is that somehow the assertion of these very parliamentary system that the correct. That is the view of the Trump principles created an impeachable of- Framers sought to avoid because, by administration; that was the view of fense. making any demand for information the Obama administration. So there is The idea that asserting defenses and and goading the Executive to a refusal that resistance in the court cases to immunity—legal defenses and immu- and treating that, then, as impeach- the jurisdiction of the courts to ad- nity in response to subpoenas, acting able, the House would effectively be dress those. But the House managers on advice of the Department of Jus- able to function with a no-confidence are missing the point when they iden- tice—is an impeachable offense is ab- vote power. That is not the Framers’ tify that position that the administra- surd and is dangerous for our govern- design. The legislative and executive tion has taken because the House can- ment. Let me explain why. branches frequently clash on questions not claim that they have a mechanism House Democrats’ obstruction theory of constitutional interpretation, in- for going to court—they are in court is wrong first and foremost because, in cluding about congressional demands right now asserting that mechanism in a government of laws, asserting privi- for information. These conflicts have the McGahn case and simultaneously leges and rights to resist compulsion is happened since the founding. saying that, well, they don’t have to not obstruction; it is a fundamental In 1796, George Washington, our first bother with that mechanism; they can right. In Bordenkircher v. Hayes, the President, resisted demands from Con- jump to impeachment. Supreme Court explains that to ‘‘pun- gress for information about the nego- Impeachment under the Constitution ish a person because he has done what tiation of the Jay Treaty, and there is the thermonuclear weapon of inter- the law plainly allows him to do is a have been conflicts between the Execu- branch friction, and where there is due process violation of the most basic tive and the Congress in virtually something like a rifle or a bazooka at sort, and for an agent of the State to every administration since then about the House’s disposal to address some pursue a course of action whose objec- congressional demands for informa- friction with the executive branch, tive is to penalize a person’s reliance tion. that is the next step. It is on his legal rights is patently unconsti- The Founding Fathers expected the incrementalism in the Constitution— tutional.’’ branches to have these conflicts. James not jumping straight to impeach- This is a principle that in the past, in Madison pointed out that ‘‘the legisla- ment—that is the solution. the Clinton impeachment, was recog- tive, executive, and judicial depart- If the House could jump straight to nized across the board, that it would be ments . . . must, in the exercise of its impeachment, that would alter the re- improper to suggest that asserting functions, be guided by the text of the lationship between the branches. It rights is an impeachable offense. Har- Constitution according to its own in- would suggest that the House could vard law professor Laurence Tribe said: terpretation of it.’’ It was recognized make itself superior over the Executive ‘‘The allegation that invoking privi- that there would be friction. to dangle the threat of impeachment leges and otherwise using the judicial Similarly in Federalist 51, Madison over any demand for information made system to shield information . . . is an pointed out that ‘‘the great security to the Executive. abuse of power that should lead to im- against a gradual concentration of the That is contrary to the Framers’ peachment and removal from office is several powers in the same department plan. Madison explained that where the not only frivolous, but also dan- consists in giving to those who admin- executive and legislative branches gerous.’’ ister each department the necessary come into conflict, in Federalist No. 49, Manager NADLER said that the use of constitutional means and personal mo- ‘‘[neither] of them, it is evident, can a legal privilege is not illegal or im- tives to resist encroachment of the pretend to exclusive or superior right peachable itself—a legal privilege, ex- others.’’ This is checks and balances, of settling the batteries between their ecutive privilege. Minority Leader this friction, this clashing between the respective powers.’’ But that is exactly SCHUMER, in the Clinton impeachment, branches. It is not evidence of an im- what the House managers have as- expressed the same view: peachable offense. It is the separation serted in this case. They have said that (Text of Videotape presentation:) of powers in its practical operation. It the House becomes supreme. There is Mr. SCHUMER. To suggest that any sub- is part of the constitutional design. no need for them to go to court. The ject of an investigation, much less the Presi- Now, the proper and historically ac- Executive must be wrong. Any resist- dent with obligations to the institution of cepted way that these disagreements ance to their subpoena is obstruction. the presidency, is abusing power and inter- have been resolved is through the con- If you claim that our subpoena is in- fering with an investigation by making le- stitutionally mandated accommoda- valid, we don’t have to do anything to gitimate legal claims, using due process and tions process. Courts have explained address that concern; we will just im- asserting constitutional rights, is beyond se- that the branches are required to en- peach you because resistance is ob- rious consideration. gage in an accommodation process to struction of Congress. Mr. Counsel PHILBIN. That was ex- resolve disagreements where there is a The House put it this way in their re- actly correct then and it is exactly cor- clash over a demand for information. port to the Judiciary Committee. They rect now. As the DC Circuit has explained, when effectively said that the House is the More important than simply the Congress asks for information from the judge of its own powers, because what principle that asserting rights can’t be executive branch that triggers ‘‘an im- they said was ‘‘the Constitution gives considered obstruction, when the plicit constitutional mandate to seek the House the final word.’’ That is on rights the President has asserted are optimal accommodation . . . of the page 154 of the House Judiciary Com- based on executive privilege, when they needs of the conflicting branches,’’ the mittee report. are constitutionally grounded prin- goal is to accommodate the needs of What that is essentially saying—they ciples that are essential for the separa- both branches to reach a compromise. point to the fact that article I, section tion of powers and for protecting the If that accommodation process fails, 2, gives the House ‘‘the sole Power of institution of the Office of the Presi- Congress has other tools at its disposal Impeachment,’’ and they claim because dency, to call that obstruction is to to address the disagreement. The it has the sole power of impeachment, turn the Constitution on its head. De- House traditionally has proceeded to the courts have no role; the House is fending the separation of powers can- contempt—to vote on a contempt reso- the final word; it is the judge of its own not be deemed an impeachable offense lution. In recent times, the House has powers. But that is contrary to con- without destroying the Constitution. taken the position that it may sue in stitutional design. There is no power Accepting that approach would do per- the courts to determine the validity of that is unchecked in the Constitution. manent damage to the separation of its subpoenas and secure an injunction The sole power of impeachment given powers and would allow the House of to enforce them. to the House simply means that power Representatives to turn any disagree- The House managers have pointed is given solely to the House, not any- ment with the Executive over informa- out that the Trump administration, where else.

VerDate Sep 11 2014 02:32 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00015 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.023 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE S594 CONGRESSIONAL RECORD — SENATE January 27, 2020 The Constitution does not say that of Presidents who would have to be dis- Court agreed to hear the case, granting the power of impeachment is the para- tinguished if the principles being as- cert before judgment in the Court of mount power that makes all other con- serted now in this case were applied to Appeals, and on July 24, the Supreme stitutional rights and privileges and all past Presidents in history. Court issued the decision. That is prerogatives of the other branches fall Now, House Democrats have given a lightning fast. away. few different justifications for this ap- So when there is urgency to the case, The Framers recognized that there proach, but I submit none can be rec- when there is a reason for it, there can could be partisan impeachments and onciled with the Constitution. They be expedition in the courts, and a deci- there could be impeachments for the say that if we cannot impeach the sion can be had in a timely manner. wrong reasons, and they did not strip President for this obstruction, then the In the one case that actually arose the executive branch of any of its needs President is above the law. Not so. I from these impeachment proceedings, for protecting its own sphere of author- think I pointed out that the President it was the House that derailed the case. ity and its own prerogatives under the is staying within the law, asserting the This was the case involving Deputy Na- Constitution. Those principles of exec- law, and relying on the legal advice tional Security Advisor Charlie utive privilege and those immunities from the Department of Justice to Kupperman, because when he received still survive, even in the context of im- make his arguments based on long-rec- a subpoena, he went to court and asked peachment. ognized constitutional principles, and, the court for a declaratory judgment The power of impeachment is not indeed, is making the fundamental explaining what his obligations were: like the House can simply flip a switch point, with respect to the subpoenas, Should he take the directive from the and say now we are in impeachment, that it is Congress that is not above President that he was immune and not and they have constitutional the law. It is the House. The House has go or should he obey the subpoena? kryptonite that makes the powers of to follow the law as well. It has to Now, in that case, he filed suit on Octo- the executive eliminated. So when issue valid subpoenas. And if the law ber 25. The court, within a few days, set there are these conflicts, even in the isn’t followed, those subpoenas are null an expedited briefing schedule, but the context of impeachment inquiry, the and void, and the Executive doesn’t House withdrew the subpoena on No- executive can continue to assert its have to comply with them. vember 5, just 11 days later, in order to privileges and prerogatives under the The House Democrats say that they moot the case. Constitution, and, indeed, it must in shouldn’t go to the courts because the So I think litigation is a viable ave- order to protect the institutional inter- courts have no role in impeachment. I nue, along with the accommodation ests of the Office of the Presidency and think I pointed out that the House process, as a first step. Then, if the to preserve the proper balance between Democrats can’t say that they have House believes it can go to court and the branches under the Constitution. the—just because of the provision of wants to litigate the jurisdiction and Professor Turley, rightly, pointed the sole power of impeachment, that it litigate the validity of its subpoenas, out that by claiming Congress can de- is a paramount power, and that no that is also available to them, but im- mand any testimony or documents and other branch plays any role in pro- peachment as the first step doesn’t impeach any President who dares to go viding a check on how the power is ex- make any sense. to the courts, House Democrats were ercised. And in addition, the House I should point out, in part, when the advancing a position that was ‘‘en- Democrats have gone to court. House managers say they didn’t have tirely untenable and abusive of im- In the McGahn case that they are time to litigate, they didn’t have time peachment.’’ Other scholars agree. litigating right now, they have as- to go to the courts, but they now come In the Clinton impeachment, Pro- serted that is part of the impeachment to this Chamber and say this Chamber fessor Susan Low Bloch testified that inquiry. The Trump administration has should issue some more subpoenas, this ‘‘impeaching a President for invoking explained that it was not validly part Chamber should get some witnesses lawful privileges is a dangerous and of the impeachment inquiry, but that that we didn’t bother to fight about, ominous precedent.’’ It would achieve is the ground on which they are liti- what do you think will happen then? exactly the result that Gouverneur gating under. That there will not be similar asser- Morris, one of the Framers, warned They say that they have no time for tions of privilege and immunity? That against at the Constitutional Conven- the courts. I think what that really there wouldn’t be litigation about tion. He explained that ‘‘when we make means is they have no time for the rule that? him [referring to the President] ame- of law in the way that they are pur- Again, this goes back to the point nable to Justice however we should suing the inquiry. The other day, one that I made. If you put your impri- take care to provide some mode that of the House managers actually said on matur on a process that was broken will not make him dependent on the the floor of the Senate that they had to and say, yes, that was a great way to Legislature.’’ get it moving. They couldn’t wait for run things, this was a great package to That is exactly what this Article of litigation. They had to impeach the bring here, and we will clean up the Impeachment would do. It would make President before the election. That is mess and issue subpoenas and try to do the President dependent on the legisla- not a valid reason to not pursue litiga- all the work that wasn’t done, then tion because any demand for informa- tion in the courts. that becomes the new normal, and that tion, be it by Congress, could be used I think it is relevant to bear in mind doesn’t make sense for this body. as a threat of impeachment to enforce what sort of delay are we talking A proper way to have things handled compliance by the executive. The very about? In the McGahn case that the is to have the House—if it wants to theory that the House Democrats have House managers referred to a number bring an impeachment here ready for asserted is that there can be no asser- of times—which they have pointed out, trial—do the investigation. The infor- tions of privileges and no constitu- they presented as being very long and mation it wants to get, if there is going tionally based prerogatives of the Ex- drawn out—they issued a subpoena in to be resistance, that has to be re- ecutive to stand in the way. April, but they did not file a lawsuit solved, and it has to be ready to pro- If that theory were true, virtually until August. By November—November ceed, not transfer the responsibility to every President could have been im- 25—they had a decision from the dis- this Chamber to do the work that peached. Virtually every President has trict court, and it was argued on appeal hasn’t been done. asserted, at one time or another, these in the DC Circuit on January 3. For They also assert that President constitutional prerogatives. President litigation, that is pretty fast, and it Trump’s assertion of these privileges is Obama famously, in the Fast and Furi- can go faster. somehow different because it is unprec- ous investigation, refused to turn over In the Nixon case, during Watergate, edented, and it is categorical. Well, it documents that led to his Attorney the special prosecutor issued a sub- is unprecedented, perhaps, in the sense General being held in contempt, but poena on April 18, 1974. On May 20—so that there was a broad statement that that didn’t lead to impeachment. It in less than a month—the district a lot of subpoenas wouldn’t be com- could be a long list. Professor Turley court denied a motion to quash the plied with, but that is because it was testified there could be a very long list subpoena. On May 31, the Supreme unprecedented for the House to begin

VerDate Sep 11 2014 01:33 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00016 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.025 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE January 27, 2020 CONGRESSIONAL RECORD — SENATE S595 these proceedings without voting to with their obstruction theory should be Representatives.’’ That is exactly what authorize the committee to issue the brushed aside and the President’s as- this case presents. subpoenas. That was the first unprece- sertions of immunities and defenses Justice Story recognized that the dented step. That is what had never have to be treated as something nefar- Senate provides the proper tribunal for happened before in history. So, of ious because, as Mr. NADLER said: Only trying impeachments because it was course, the response to that would be, guilty people try to hide the evidence. believed by the Framers to have a in some sense, unprecedented. The That is what he said from last Tuesday greater sense of obligation to the fu- President simply pointed out that night. And Mr. SCHIFF, similarly, in ture, to future generations, not to be without that vote, there were no valid discussing the assertion of the execu- swayed by the passions of the moment. subpoenas. tive branch’s constitutional rights, One of the essential questions here is, There have also been categorical re- said: ‘‘The innocent do not act this Will the Chamber adopt a standard for fusals in the past. President Truman, way.’’ impeachment—a diluted standard— when the House Committee on Un- Really? Is that the principle in the that fundamentally disrupts, damages, American Activities, in 1948, issued United States of America that if you and alters the separation of powers in subpoenas to his administration, issued assert legal privileges or rights, that our constitutional structure of govern- a directive to the entire executive means you are guilty? If the innocent ment? Because that is what both the branch that any subpoena or demand don’t assert their rights, that the first article—for reasons that Judge or request for information, reports, or President can’t defend the constitu- Starr and Professor Dershowitz have files in the nature described in those tional prerogatives of his office? covered—and the second article, the subpoenas shall be respectfully de- That doesn’t make any sense. At bot- obstruction charge, would do. clined on the basis of this directive, tom, the second Article of Impeach- I will close with a quotation from one and he referred also to inquiries of the ment comes down to a dispute over a of the Republican Senators who crossed Office of the President for such re- legal issue relating to constitutional the aisle and voted against convicting sponse as the President may determine limits on the ability of the House to President Andrew Johnson during his to be in the public interest. The Tru- compel information from the Execu- impeachment trial. It was Lyman man administration responded to none tive. No matter how House Democrats Trumbull who I think explained the of them. try to dress up their charges, a dif- great principle that applies here. He A last point on the House Democrats’ ference of legal opinion does not rise to said: claim that privileges simply disappear the level of impeachment. ‘‘Once [we] set the example of impeaching because this is impeachment power of Until now, the House has repeatedly a President for what, when the excitement of the House. They have referred a num- rejected attempts to impeach the the hour shall have subsided will be regarded ber of times to United States v. Nixon, President based on legal disputes over as insufficient causes, no future President the Supreme Court decision, suggesting assertions of privilege. As Judge Starr will be safe . . . and what then becomes of the checks and balances of the constitution, that that somehow determines that pointed out, in the Clinton pro- so carefully devised and so vital to its per- when you are in an impeachment in- ceedings, the House Judiciary Com- petuity? They are all gone. quiry, executive privilege falls away. mittee concluded that the President Thank you, Mr. Chief Justice. That is not true. In fact, United States had improperly exercised executive I will yield to Mr. Sekulow. v. Nixon was not even actually address- privilege, yet still concluded that it did Mr. Counsel SEKULOW. Mr. Chief ing a congressional subpoena. It was a not have the ability to second-guess Justice, Members of the Senate, House subpoena from the special prosecutor, the rationale behind the President or managers, Mr. Philbin just concluded and even in that context, the Court did what was in his mind asserting execu- on the importance of executive privi- not state that executive privilege sim- tive privilege, and it could not treat lege. ply disappears. Instead, the Court said: that as an impeachable offense. It re- Professor Turley, who testified before ‘‘It is necessary to resolve these com- jected an Article of Impeachment the House, said we have three branches peting interests’’—they are the inter- based on Clinton’s assertions of privi- of government, not two. If you impeach ests of the judicial branch in admin- lege. a President, if you make a high crime istering a criminal prosecution in a And as the House Democrat’s own and misdemeanor out of going to court, case where the evidence was needed— witness, Professor Gerhardt, has ex- it is an abuse of power. It is your abuse ‘‘these competing interests in a man- plained, in 1843, President Tyler simi- of power. ner that preserves the essential func- larly was investigated for potential im- With regard to executive privilege, it tions of each branch.’’ peachment—his attempts to protect was Mr. NADLER who called it ‘‘execu- And it even held out the possibility and assert what he regarded as the pre- tive privilege and other nonsense.’’ that in the field of foreign relations rogatives of his office as he resisted de- When Attorney General Holder re- and national security, there might be mands for information from Congress. fused to comply with subpoenas, Presi- something approaching an absolute ex- Professor Gerhardt explained Tyler’s dent Obama invoked executive privi- ecutive privilege. That is exactly the attempt to protect and assert what he lege, arguing ‘‘compelled disclosure field we are in, in this case—foreign re- regarded as the prerogatives of his of- would be inconsistent with the separa- lations and national security matters. fice were the function of his constitu- tion of powers established in the Con- Another thing you have heard is that tional and policy judgments, and they stitution’’—‘‘executive privilege and President Clinton voluntarily cooper- could not be used by Congress to im- other nonsense.’’ ated with the investigation that led to peach him. President Trump’s resist- Manager SCHIFF wrote that the White his impeachment—produced tens of ance to congressional subpoenas was no House assertion of executive privilege thousands of documents. That is not less a function of his constitutional was backed by decades of precedent really accurate. That was only after and policy judgment, and it provides no that has been recognized and has recog- long litigation again and again about basis to impeach him. nized the need for the President and his assertions of privilege. He asserted nu- I would like to close with a final senior advisers to receive candid advice merous privileges. The House Judiciary thought. One of the greatest issues— and information from their top aides— Committee then explained ‘‘during the and perhaps the greatest issue—for ‘‘executive privilege and other non- Lewinsky investigation, President your consideration in this case is how sense.’’ Clinton abused his power through re- the precedent set in this case will af- We talked about this the other night. peated privilege assertions of executive fect the future. The nonsense is to treat the separation privilege by at least five of his aides.’’ The Framers recognized that there of powers and constitutional privileges Unlike the House in this case, Inde- would be partisan and illegitimate im- as if they are asbestos in the ceiling pendent Counsel Starr first negotiated peachments. In Federalist No. 65, Ham- tiles. You can’t touch them. That is with the White House and then liti- ilton expressly warned about impeach- not the way the Constitution is de- gated those claims and got them re- ments that reflected what he called signed. solved. Ultimately, the House man- ‘‘the persecution of an intemperate or We are going to now turn our atten- agers argued that all of the problems designing majority in the House of tion to a separate topic. It is one that

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Zlochevsky, the oli- crats pointed out Hunter Biden’s ac- an issue that the House managers have garch, is well-known. tivities created a conflict of interest put pretty much at the center of their George Kent, the very first witness for Joe Biden. The article stated: ‘‘The case, and that is the issue of corruption that the Democrats called during their move raises questions about a poten- in Ukraine, particularly with regard to public hearings, testified that tial conflict of interest for Joe Biden.’’ a company known as Burisma. Zlochevsky stood out for his self-deal- Even Chris Heinz, Hunter Biden’s Mr. Chief Justice, I yield my time to ings, even among other oligarchs. own business partner, had grave con- former Attorney General Pam Bondi. House managers didn’t tell you that. cerns. He thought that working with Ms. Counsel BONDI. Mr. Chief Jus- Ambassador Kurt Volker explained Burisma was unacceptable. This is tice, Senators, Members of the Senate, that Burisma had ‘‘a very bad reputa- Chris Heinz. He was worried about the when the House managers gave you tion as a company for corruption and corruption, the geopolitical risk, and their presentation, when they sub- money laundering.’’ House managers how bad it would look. So he wisely mitted their brief, they repeatedly ref- didn’t tell you that. distances himself from Hunter Biden erenced Hunter Biden and Burisma. Burisma was so corrupt that George and Devon Archer’s appointments to They spoke to you for over 21 hours, Kent said he intervened to prevent Burisma. and they referenced Biden or Burisma USAID from cosponsoring an event He didn’t simply call his stepfather, over 400 times. And when they gave with Burisma. Do you know what this the Secretary of State, and say: I have these presentations, they said there event was? It was a child’s contest, and a problem with this. He didn’t tell his was nothing—nothing—to see. It was a the prize was a camera. They were so friends: Hey, guys, I am not getting on sham. This is fiction. bad—Burisma—that our country the board. I want nothing to do with In their trial memorandum, the wouldn’t even cosponsor a children’s this. House managers described this as base- event with Burisma. He went so far as to send an email to In March 2014, the United Kingdom’s less. Why did they say that? Why did senior State Department officials Serious Fraud Office opened a money they invoke Biden or Burisma over 400 about this issue. This is Chris Heinz. laundering investigation into the oli- times? The reason they needed to do He wrote: garch, Zlochevsky, and the company that is because they are here saying Apparently, Devon and Hunter have joined Burisma. The very next month, April that the President must be impeached the board of Burisma, and a press release 2014, according to a public report, Hun- and removed from office for raising a went out today. I can’t speak [to] why they ter Biden quietly joins the board of decided to, but there is no investment by our concern, and that is why we have to Burisma. firm in their company. talk about this today. Remember, early 2014 was when Vice What did Hunter Biden do? He stayed They say sham. They say baseless. President Biden began leading Ukraine on the board. What did Chris Heinz do? They say this because if it is OK for policy. He subsequently stopped doing business someone to say, ‘‘hey, you know what, Here is how Hunter Biden came to with his college roommate Devon Ar- maybe there is something here worth join Burisma’s board in 2014. He was cher and his friend Hunter Biden. Chris raising,’’ then, their case crumbles. brought on the board by Devon Archer, Heinz’ spokesperson said the lack of They have to prove beyond a reason- his business partner. Devon Archer was judgment in this matter was a major able doubt that there is no basis to college roommates with Chris Heinz, catalyst for Mr. Heinz ending his busi- raise this concern, but that is not what the stepson of Secretary of State John ness relationship with Mr. Archer and public records show. Kerry. All three men—Hunter Biden, Here are just a few of the public Mr. Biden. Devon Archer, and Chris Heinz—had all Now, the media also noticed. The sources that flagged questions sur- started an investment firm together. same day, an ABC News reporter asked rounding this very same issue. The Public records show that on April 16, Obama White House Press Secretary United Kingdom’s Serious Fraud Of- 2014, Devon Archer meets with Vice Jay Carney about it. Here is what hap- fice, Deputy Assistant Secretary of President Biden at the White House. pened. State George Kent, Hunter Biden’s Just 2 days later, on April 18, 2014, (Text of Videotape presentation:) former business associate, ABC White Hunter Biden quietly joins Burisma. Jon KARL. Hunter Biden has now taken a House reporter, ABC’s Good Morning That is according to public reporting. position with the largest oil and gas com- America, the Washington Post, the Remember, this is just 1 month after pany—holding company in Ukraine. Is there New York Times, Ukrainian law en- the United Kingdom’s Serious Fraud any concern about at least the appearance of forcement, and the Obama State De- Office opened a money laundering case a conflict there—the Vice President’s son— partment itself—they all raised this into Burisma, and Hunter Biden joins Jay CARNEY. I would refer you to the Vice issue. their board. President’s Office. I saw those reports. You We would prefer not to be talking know, Hunter Biden and other members of And not only 10 days after Hunter the Biden family are obviously private citi- about this. We would prefer not to be Biden joins the board, British authori- zens, and where they work does not reflect discussing this. But the House man- ties seized $23 million in British bank an endorsement by the administration or by agers have placed this squarely at accounts connected to the oligarch the Vice President or President. But I would issue. So we must address it. Zlochevsky, the owner of Burisma. Did refer you to the Vice President’s Office. Let’s look at the facts. In early 2014, Hunter Biden leave the board then? No. Ms. Counsel BONDI. The next day, Joe Biden, our Vice President of the The British authorities also an- the Washington Post ran a story about United States, led the U.S. foreign pol- nounced that they had started a crimi- it. It said: ‘‘The appointment of the icy in Ukraine with the goal of rooting nal investigation into potential money Vice President’s son to a Ukrainian oil out corruption. According to an annual laundering. Did Hunter Biden leave the board looks nepotistic at best, nefar- study published by Transparency Inter- board? No. ious at worst.’’ Again, ‘‘The appoint- national, during this time, Ukraine What happened was, then—and only ment of the Vice President’s son to a was one of the most corrupt countries then—did the company chose to an- Ukrainian oil board looks nepotistic at in the entire world. nounce that Hunter Biden had joined best, nefarious at worst.’’ There is a natural gas company in the board after the assets of Burisma And the media didn’t stop asking Ukraine called Burisma. Burisma has and its oligarch owner, Zlochevsky, questions here. It kept going. Here is been owned by an oligarch named were frozen and a criminal investiga- ABC. Mykola Zlochevsky. Here is what hap- tion had begun. Hunter Biden’s deci- (Text of Videotape presentation:) pened very shortly after Vice President sion to join Burisma raised flags al- Vice President BIDEN. You have to fight Biden was made U.S. point man for most immediately. the cancer of corruption.

VerDate Sep 11 2014 01:33 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00018 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.027 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE January 27, 2020 CONGRESSIONAL RECORD — SENATE S597 LLAMAS. But then something strange When speaking with ABC News about Ms. Counsel BONDI. But House man- happened. Just three weeks later a Ukrain- his qualifications to be on Burisma’s agers didn’t tell you that. ian natural gas company, Burisma, accused board, Hunter Biden didn’t point to This is all while Hunter Biden sat on of corruption appoints Hunter Biden, seen any of the usual qualifications of a Burisma’s board. Did Hunter Biden here in their promotional videos, to their board of directors, paying his firm more than board member. Hunter Biden had no stop working for Burisma? No. Did a million dollars a year. experience in natural gas, no experi- Vice President Biden stop leading the Ms. Counsel BONDI. Here is more ence in the energy sector, and no expe- Obama administration’s foreign policy from ABC, continued on. rience with Ukrainian regulatory af- efforts in Ukraine? No. In the mean- (Text of Videotape presentation:) fairs. As far as we know, he doesn’t time, Vice President Biden is still at LLAMAS. And Ukraine wasn’t the only speak Ukrainian. So naturally the the forefront of the U.S.-Ukraine pol- country where Hunter Biden’s business and media has asked questions about his icy. He pledges a billion-dollar loan his father’s diplomacy as Vice President board membership. Why was Hunter guarantee to Ukraine contingent on its intersected. It also happened in China. This Biden on this board? progress in rooting out corruption. video shows Chinese diplomats greeting Vice (Text of Videotape presentation:) Around the same time as the $1 bil- President Biden as he arrived in Beijing in Amy ROBACH. If your last name wasn’t lion announcement, other people raised December of 2013. Right by his side, his son Biden, do you think you would’ve been asked the issue of a conflict. As the Obama Hunter. Less than 2 weeks later, Hunter’s to be on the board of Burisma? administration special envoy for en- firm had new business, creating an invest- Mr. Hunter BIDEN. I don’t know. I don’t ergy policy told the New Yorker, he ment fund in China involving the govern- know. Probably not. ment-controlled Bank of China, with reports raised Hunter Biden’s participation on they hoped to raise $1.5 billion. Ms. Counsel BONDI. So let’s go back the board of Burisma directly with the and talk about his time on the board. Vice President himself. This is a spe- Ms. Counsel BONDI. In fact, every Remember, he joined Burisma’s witness who was asked about Hunter cial envoy to President Obama. board in April 2014, while the United The media had questions too. On De- Biden’s involvement with Burisma Kingdom had an open money laun- cember 8, 2015, the New York Times agreed there was a potential appear- dering case against Burisma and its publishes an article that Prosecutor ance of a conflict of interest. Multiple owner, the oligarch Zlochevsky. On Au- General Shokin was investigating House Democratic witnesses, including gust 20, 2014, 4 months later, the Burisma and its owner, Zlochevsky. those from the Department of State, Ukrainian prosecutor general’s office Here is their quote: ‘‘The credibility of the National Security Council, and initiates a money laundering investiga- the vice president’s anticorruption others, unanimously testified there tion into the same oligarch, message may have been undermined by was a potential appearance of a con- Zlochevsky. This is one of 15 investiga- the association of his son, Hunter flict of interest. These were their wit- tions into Burisma and Zlochevsky, ac- Biden,’’ with Burisma and its owner, nesses. How much money did Hunter Biden cording to a recent public statement Zlochevsky. And it wasn’t just one reporter who get for being on the board? Well, if we made by the current prosecutor gen- asked questions about the line between start looking at these bank records, ac- eral. Burisma and the Obama administra- cording to reports, between April 2014 On January 16, 2015, prosecutors put tion. As we learned recently through and October 2015, Burisma paid more Zlochevsky, the owner of Burisma, on reporting on FOX News, on January 19, than $3.1 million to Devon Archer and whose board Hunter Biden sat, on the 2016, there was a meeting between Hunter Biden. That is over the course country’s wanted list for fraud—while Obama administration officials and of a year and a half. How do we know Hunter Biden is on the board. Then a British court orders that Ukrainian prosecutors. this? Some of Devon Archer’s bank Zlochevsky’s $23 million in assets be Ken Vogel, journalist for the New records were disclosed during an unre- unfrozen. Why was the money York Times, asked the State Depart- lated Federal criminal case having unfrozen? Deputy Assistant Secretary ment about this meeting. He wanted nothing to do with Hunter Biden. Kent testified to it. more information about the meeting These bank records show 17 months (Text of Videotape presentation:) ‘‘where U.S. support for prosecutions of that Burisma wired two payments of KENT. Somebody in the General Prosecu- Burisma Holdings in the United King- $83,333—not just for 1 month, for 2 tor’s Office of Ukraine shut the case, issued dom and Ukraine were discussed.’’ But months, for 3 months, but for 17 a letter to his lawyer, and that money went the story never ran. months. According to Reuters, sources poof. Around the time of the reported report that of the two payments of CASTOR. So essentially paid a bribe to story—January 2016—a meeting be- $83,333 each, one was for Hunter Biden make the case go away. tween the Obama administration and and one, Devon Archer. KENT. That is our strong assumption, yes, sir. Ukrainian officials took place, and a Hunter Biden was paid significantly Ukrainian press report, as translated, more than board members for major Ms. Counsel BONDI. He also testified that the Ukrainian prosecutor gen- says: The U.S. Department of State U.S. Fortune 100 companies such as made it clear to the Ukrainian authori- Goldman Sachs, Comcast, and eral’s office actions led to the unfreezing of the assets. ties that it was linking the $1 billion in Citigroup. The typical board member loan guarantees to the dismissal of of these Fortune 100 companies, we After George Kent’s confirmation, that prosecutor was out. Viktor Prosecutor General Viktor Shokin. know, are the titans of their industry. Now, we all know the Obama admin- They are highly qualified, and as such, Shokin becomes prosecutor general. This is the prosecutor you will hear istration, from the words of Vice Presi- they are well compensated. Even so, dent Biden himself—he advocated for Hunter Biden was paid significantly about later, the one Vice President Biden has publicly said he wanted out the prosecutor general’s dismissal. more. This is how well he was com- There was ongoing investigation into pensated: Hunter Biden was paid over of office. In addition to flagging questions the oligarch Zlochevsky, the owner of $83,000 a month, while the average about previous prosecutors’ actions, Burisma, at the time. We know this be- American family of four, during that George Kent also specifically voiced cause on February 2, 2016, the Ukrain- time, each year made less than $54,000. other concerns—this time to the Vice ian prosecutor general obtained a re- That is according to the U.S. Census President’s Office—about Hunter newal of a court order to seize the Bureau during that time. Ukrainian oligarch’s assets. A Kyiv This is what has been reported about Biden. In February 2015, he raised con- cerns about Hunter Biden to Vice Post article published on February 4, his work on the board. The Washington 2015, says the oligarch Zlochevsky is Post said: ‘‘What specific duties Hunter President Biden’s Office. (Text of Videotape presentation:) ‘‘suspected of committing a criminal Biden carried out for Burisma are not offense of illicit enrichment.’’ fully known.’’ The New Yorker re- KENT. In a briefing call with the National Security staff in the Office of the Vice Presi- Over the next few weeks, the Vice ported: ‘‘Once or twice a year, he at- dent in February 2015, I raised my concern President had multiple calls with tended Burisma board meetings and en- that Hunter Biden’s status as a board mem- Ukraine’s President Poroshenko. ergy forums that took place in Eu- ber could create the perception of a conflict Days after the last call, on February rope.’’ of interest. 24, 2016, a DC consultant reached out to

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Around this time, Vice Presi- without evidence, that everything we member. dent Biden leaves office. just have said has been debunked, that In an email summarizing the call, the Years later now, former Vice Presi- the evidence points entirely and un- State Department official says that the dent Biden publicly details what we equivocally in the other direction. consultant noted that two high-profile know happened: his threat to withhold That is a distraction. citizens are affiliated with the com- more than $1 billion in loan guarantees You have heard from the House man- pany, including Hunter Biden as a unless Shokin was fired. agers. They do not believe that there board member. She added that the con- Here is the Vice President. was any concern to raise here, that all sultant would like to talk with Under (Text of Videotape presentation:) of this was baseless. And all we are Secretary of State Novelli about get- Vice President BIDEN. I said I’m not—we saying is that there was a basis to talk ting a better understanding of how the are not going to give you the billion dollars. about this, to raise this issue, and that United States came to the determina- They said: You have no authority. You’re is enough. tion that the country is corrupt. not the President. The President said—I I yield my time. To be clear, this email documents said: Call him. I said: I’m telling you, you The CHIEF JUSTICE. Mr. Sekulow. that the U.S. Government had deter- are not getting the billion dollars. I said: Mr. Counsel SEKULOW. Mr. Chief You are not getting the billion. I’m going to Justice, Majority Leader MCCONNELL, mined Burisma to be corrupt, and the be leaving here in, I think it was about 6 Democratic Leader SCHUMER, House consultant was seeking a meeting with hours. I looked at them and said: I’m leaving an extremely senior State Department in six hours. If the prosecutor is not fired, managers, Members of the Senate, this official to discuss the U.S. Govern- you’re not getting the money. Well, son of a will be our last presentation before din- ment’s position. Her pitch for the bitch. (Laughter.) He got fired. And they put ner. meeting specifically used Hunter in place someone who was solid at the time. The next lawyer representing the Biden’s name, and according to the Ms. Counsel BONDI. What he didn’t President is Eric Herschmann. He is a email, the meeting was set for a few say on the video—according to the New partner in the Kasowitz firm, the law days later. York Times, this was the prosecutor firm which has been representing the Later that month, on March 29, 2016, investigating Burisma, Shokin. President for over two decades. He is a the Ukrainian Parliament finally votes What he also didn’t say on the video former prosecutor and trial lawyer, and to fire the prosecutor general. This is was that his son was being paid signifi- he ran a natural gas company in the the prosecutor general investigating cant amounts by the oligarch owner of United States. the oligarch, owner of Burisma, on Burisma to sit on that board. He is going to discuss additional evi- whose board Hunter Biden sat. Only then does Hunter Biden leave dence the House managers ignored or Two days after the prosecutor gen- the board. He stays on the board until misstated and how other Presidents eral is voted out, Vice President Biden April 2019. In November 2019, Hunter might have measured up under this announces that the United States will Biden signs an affidavit saying he ‘‘has new impeachment standard. provide $335 million in security assist- been unemployed’’ and has no other Mr. Counsel HERSCHMANN. Mr. ance to Ukraine. He soon announces ‘‘monthly income since May 2019.’’ Chief Justice, Members of the Senate, I that the United States will provide $1 This was in November of 2019, so we am Eric Herschmann. I have the honor billion in loan guarantees to Ukraine. know, from after April 2019 to May 2019 and privilege of representing the Presi- Let’s talk about one of the Demo- through November 2019, he was unem- dent of the United States in these pro- crats’ central witnesses: Ambassador ployed, by his own statement—April ceedings. I have been carefully listen- Yovanovich. In May 2016, Ambassador 2019 to November 2019. ing to and reviewing the House man- Yovanovitch was nominated to be Am- Despite his resignation from the agers’ case. That case pretty much bassador to Ukraine. Here is what hap- board, the media continued to raise the boils down to one straightforward con- pened when she was preparing for her issue relating to a potential conflict of tention—that the President abused his Senate confirmation hearing. interest. power to promote his own personal in- (Text of Videotape presentation:) On July 22, 2019, the Washington Post terests and not our country’s interests. Representative RATCLIFFE. Congress- wrote that fired Prosecutor General The House managers say that the woman Stefanik had asked you how the Shokin ‘‘believes his ouster was be- President did not take the steps that Obama-Biden State Department had pre- cause of his interest in the company,’’ they allege for the benefit of our coun- pared you to answer questions about referring to Burisma. The Post further try but only for his own personal ben- Burisma and Hunter Biden specifically. Do wrote that ‘‘had he remained in his efit. If that is wrong, if what the Presi- you recall that? dent had wanted would have benefited Ambassador YOVANOVITCH. Yes. post, he would have questioned Hunter Biden. our country, then the managers have Representative RATCLIFFE. Out of thou- not met their burden, and these Arti- sands of companies in the Ukraine, the only On July 25, 2019, 3 days later, Presi- one that you recall the Obama-Biden State dent Trump speaks with President cles of Impeachment must be rejected. Department preparing you to answer ques- Zelensky. He said: As we will see, the House managers do tions about was the one where the Vice not come close to meeting the burden. The other thing, There’s a lot of talk about President’s son was on the board, is that Last week, Manager SCHIFF said that Biden’s son, that Biden stopped the prosecu- fair? tion and a lot of people want to find out the investigations President Trump Ambassador YOVANOVITCH. Yes. about that so whatever you can do with the supposedly asked President Zelensky Ms. Counsel BONDI. So she is being Attorney General would be great. Biden went about on the July 25 call could not prepared to come before all of you—all around bragging that he stopped the prosecu- have been in the country’s interest be- of you—and talk about world issues, tion so if you can look into it . . . It looks cause he said they were ‘‘discredited going to be in charge of the Ukraine, horrible to me. entirely.’’ The House managers say and what did they feel the only com- The House managers talked about that the investigations had been de- pany—the company—that it was im- the Bidens and Burisma 400 times, but bunked; they were sham investiga- portant to brief her on in case she got they never gave you the full picture. tions. Now we have the question: Were a question? Burisma. But here are those who did: The United they really? Ambassador Yovanovich was con- Kingdom’s Serious Fraud Unit; Deputy The House managers in the over 21 firmed July 2016 as the Obama adminis- Assistant Secretary of State George hours of the repetitive presentation tration was coming to a close. In Sep- Kent; Chris Heinz, the ABC White never found the time to support those tember 2016, a Ukrainian court cancels House reporter; ABC ‘‘Good Morning conclusory statements. Was it, in fact, the oligarch Zlochevsky’s arrest war- America’’; the Washington Post; the true that any investigation had been rant for lack of progress in the case. New York Times; Ukrainian law en- debunked? The House managers do not

VerDate Sep 11 2014 02:32 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00020 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.030 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE January 27, 2020 CONGRESSIONAL RECORD — SENATE S599 identify for you who supposedly con- ruled by market principles—not sweetheart ruption-ridden country Vice President ducted any investigations, who sup- deals. It’s not enough to push through laws Biden was responsible for. posedly did the debunking, who dis- to increase transparency with regard to offi- And Manager SCHIFF says: Move cial sources of income. Senior elected offi- along; there is nothing to see here. credited it. Where and when were any cials have to remove all conflicts between such investigations conducted? When their business interests and their govern- What are the House managers afraid of were the results published? And much ment responsibilities. finding out? In an interview with ABC more is left unanswered. As Attorney General Bondi said, here in October of last year, Hunter Biden Attorney General Bondi went are the facts we do know about Hunter said he was on the board of Burisma to through for you some of what we know Biden’s involvement with Ukraine. focus on principles of corporate govern- about Burisma in its millions of dollars Burisma, a Ukrainian natural gas com- ance and transparency. in payments to Vice President Biden’s pany, paid Hunter Biden millions of (Text of Videotape presentation:) son and his son’s business partner. dollars to serve on its board of direc- Mr. HUNTER BIDEN. Bottom line is that I There is no question that any ration- tors. He did not have any relevant ex- know I was completely qualified to be on the board, to head up the corporate governance al person would like to understand pertise or experience. He had no exper- what happened. I am going to go and transparency committee on the board. tise or experience in the natural gas in- And that’s all that I focused on. through some additional evidence, dustry. He had no known expertise in Mr. Counsel HERSCHMANN. But which was easily available to the corporate governance nor any expertise when asked how much money Burisma House managers but which they never in Ukrainian law. He doesn’t, so far as was paying him, he responded he sought or considered. we know, speak Ukrainian. So why— doesn’t want to ‘‘open his kimono’’ and Based on what Attorney General why—did Burisma want Hunter Biden disclose how much. He does refer to Bondi told you in this additional evi- on its board? Why did they want to pay public reports about how much he was dence, you can judge for yourself him millions of dollars? Well, he did whether the conduct was suspect. As have one qualification. He was the son being paid, but as we now know, he was you know, one of the issues concerned of the Vice President of the United being paid far more than what was in Hunter Biden’s involvement with the States. He was the son of the man in the public record. (Text of Videotape presentation:) Ukrainian natural gas company, which charge of the Ukrainian portfolio for paid him millions of dollars while his the prior administration. And we are to Ms. ROBACH. You were paid $50,000 a father was Vice President and was in month for your position? believe there is nothing to see here, Mr. HUNTER BIDEN. Look, I’m a private charge of the Ukrainian portfolio dur- that for anyone to investigate or in- citizen. One thing that I don’t have to do is ing the prior administration. I will get quire about this would be a sham— sit here and open my kimono as it relates to to those supposedly discredited allega- nothing to see here. how much money I make or made or did or tions identified by the House managers But tellingly, Hunter Biden’s attor- didn’t. But it’s all been reported. in a few minutes. ney, on October 13, 2019, issued a state- Mr. Counsel HERSCHMANN. So what The other issue was what Manager ment on his behalf. He indicated that was the real reason that Hunter Biden, SCHIFF called ‘‘the baseless conspiracy in April 2014, Hunter was asked to join the Vice President’s son, was being theory that Ukraine, not Russia, inter- the board of Burisma, then states Hun- paid by Burisma? Was it based on his fered in the 2016 election.’’ ter stepped off Burisma’s board in April knowledge and understanding of the Manager SCHIFF said that President 2019. natural gas industry in Ukraine? Was Trump wanted to ‘‘erase from history Now listen to the commitment that he going to discuss how our govern- his previous political misconduct.’’ But Hunter Biden is supposedly willing to ment regulates the energy industry there was no previous political mis- make to all of us. Hunter makes the here? Was he going to discuss how we conduct. If any theory has actually following commitment: Under a Biden set gas rates? Was he going to discuss been discredited, it is the theory that administration, Hunter will readily pipeline development construction or President Trump colluded with Russia comply with any and all guidelines or environmental impact statements? Did in 2016. It was that theory that was dis- standards a President Biden may issue he know anything about the natural credited, and discredited entirely, by to address purported conflicts of inter- gas industry at all? Of course not. Mr. Mueller’s massive investigation— est or the appearance of such conflicts, So what was the reason? I think you the same investigation the Democrats including any restrictions related to do not need to look any further than demanded since President Trump took overseas business interests. the explanation that Hunter Biden office; the same investigation they That statement almost tells us all we gave during the ABC interview when he knew, they were absolutely sure, would need to know. That is the rule that was asked why. expose such collusion; the same inves- should have been in place in 2014 be- Here is what he had to say. tigation, which, after 22 months of ex- cause there already was an Obama- (Text of Videotape presentation:) haustive work at a cost to the tax- Biden administration. What changed? Ms. ROBACH. If your last name wasn’t payers of $32 million, found no con- What changed? Biden, do you think you would have been spiracy and no evidence of Russian col- Remember a couple of minutes ago asked to be on the board of Burisma? lusion with the Trump campaign. when I quoted an expert on Ukraine, Mr. HUNTER BIDEN. I don’t know. Prob- As we will see, the Democrats are as the one who said that Ukraine must ably no. I don’t think there are a lot of clean up its energy sector, the one who things that would have happened in my life wrong now about the Articles of Im- if my last name wasn’t Biden. peachment as they were in 2016 about said that Ukraine’s senior elected offi- Mr. Counsel HERSCHMANN. And as the Russian collusion. cials have to remove all conflicts be- if to confirm how suspect this conduct As to the other incident President tween their business interests and was that it should be a concern to our Trump mentioned—the one concerning their government responsibilities? You country, Hunter Biden and his lawyer the Ukrainian gas company Burisma— know who said that about Ukraine? could not even keep their story I actually think this is something that Vice President Joe Biden in December straight. Compare the press release is undisputed, that Ukraine had a par- of 2015. that was issued by Burisma on May 12, ticularly bad corruption problem. It Vice President Biden went to 2014, with Hunter Biden’s lawyer’s was so corrupt that dealing with cor- Ukraine approximately 12 to 13 times. statement on October 13 of 2019. The ruption and solving the corruption was He spoke with legislators, business peo- May 2014 press release begins: ‘‘R. a priority for our U.S. foreign policy. ple, and officials. He was purportedly [Robert] Hunter Biden will be in charge Here is how one knowledgeable ob- fighting corruption in Ukraine. He was of holding’s legal unit.’’ He was going server of Ukraine put it in 2015: urging Ukraine to investigate and up- root corruption. to be in charge of a Ukrainian gas com- It’s not enough to set up a new anti-cor- One thing he apparently did not do, pany owned by an oligarch’s legal unit. ruption bureau and establish a special pros- ecutor fighting corruption. The Office of the however, was to tell his son not to However, in his lawyer’s statement in General Prosecutor desperately needs re- trade on his family connections. He did October of 2019, after his involvement form. The judiciary should be overhauled. not tell his son to especially stay away with Burisma came under renewed pub- The energy sector needs to be competitive, from the energy sector in the very cor- lic scrutiny, he now claims: ‘‘At no

VerDate Sep 11 2014 01:33 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00021 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.031 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE S600 CONGRESSIONAL RECORD — SENATE January 27, 2020 time was Hunter in charge of the com- closed—nothing like that. He cannot billion unless one individual was fired pany’s legal affairs.’’ say those things because he knows within a certain matter of hours. Was Which is it? What was Hunter Biden Devon and Hunter well and he knows that really or could it ever be our doing at Burisma in exchange for mil- they have no particular qualifications, United States policy? lions of dollars? Who knows? What whatsoever, to do those things, espe- According to the House managers’ were they looking to hide so much for cially for a Ukrainian gas company. theory, we were willing to jeopardize his corporate governance and trans- Instead, Mr. Heinz is planning to go Ukrainians unless somebody who hap- parency? on the record to report what Hunter pened to be investigating Burisma was But let’s take a step back and realize and Devon were doing through official promptly fired. Are we going to jeop- what actually transpired, because the channels to take pains to disassociate ardize a Ukrainian economy because a House managers would have us believe himself from what they were doing. prosecutor was not fired in the 6-hour this had nothing at all to do with our And what did the State Department do time period Vice President Biden de- government, nothing at all to do with with this information that the Sec- manded? Does anyone really believe our country’s interests, nothing at all retary of State’s stepson thought they that was or ever could be our U.S. for- to do with our Vice President, nothing needed to know? Apparently, nothing. eign policy? And, just in case, the man- at all to do with the State Department. They did not tell Mr. Heinz to stay agers or others tried to argue: No, no, It was simply private citizen Hunter away. They did not tell Mr. Heinz there no, he wasn’t serious about that; he Biden doing his own private business. is no problem—nothing. But all this, was just bluffing. What kind of mes- It was purely coincidental that it was the House managers want us to believe, sage would that send to the Russians in his father’s portfolio in Ukraine, in does not even merit any inquiry. Any- about our support for the Ukrainians the exact sector—the energy sector— one asking for one, anyone discussing that we would bluff and bluff with the that his father said was corrupt. one is now corrupt. Ukrainian economy? But we have a document here—again, Does it matter in an inquiry why a From 2014 to 2017, Vice President something that House managers did corrupt company in a corrupt country Biden claimed to be on a crusade not show you or even put before the would be paying our Vice President against corruption in Ukraine. He re- House before voting on these baseless son’s a million dollars per year, plus, it peatedly spoke about how the cancer of Articles of Impeachment. If you look appears, some additional expenses, and corruption was endemic in Ukraine, at that email, it is an email from Chris paying his business partner an addi- hobbled Ukraine, how Ukraine faced no Heinz. And as Attorney Bondi already tional million dollars per year? Sec- more consequential mission than con- told you, he is the stepson of the then- retary of State Kerry’s stepson thought fronting corruption, and he encouraged Secretary of State John Kerry, and he it was important enough to report. Ukraine to close the space for corrupt was the other business partner with Why aren’t the House managers con- middlemen who rip off the Ukrainian Hunter Biden and Devon Archer. Our cerned? people. The Vice President railed Secretary of State’s stepson and our And I ask you, why would it not against monopolistic behavior where a Vice President’s son are in business to- merit an investigation? You know select few profit from so many sweet- gether. something else about Vice President heart deals that has characterized that It was sent on May 13, 2014, to the of- Biden? Well, back in January of 2018, as country for so long. ficial government email addresses of you heard, former Vice President Biden On his last official visit to Ukraine, 4 two senior people at the State Depart- bragged that he had pressured the days before he left office, he spoke out ment. These two people are the Chief of Ukrainians—threatened them, indeed, against corruption and oligarchy, that Staff to the Secretary of State and the coerced them—into firing the state eats away like a cancer, and against Special Adviser to the Secretary of prosecutor who reportedly was inves- corruption, which continues to eat State. The subject line in the email is tigating the very company that paid away at Ukraine’s democracy within. not ‘‘corporate transparency.’’ It is not millions of dollars to his son. He Why was Vice President doing this? ‘‘corporate governance.’’ It is not bragged that he gave them 6 hours to Was he so concerned about corruption ‘‘here’s a heads-up.’’ The subject line is fire the prosecutor or he would cut off in Ukraine—even singling out that ‘‘Ukraine.’’ $1 billion in U.S. loan guarantees. country’s energy sector—because cor- Chris Heinz certainly understood the (Text of Videotape presentation:) ruption in Ukraine is a critical policy sensitivity to our U.S. foreign policy. Vice President BIDEN. I said: We’re not concern for our country? What does the Secretary of State’s going to give you the billion dollars. But during this whole time, what else stepson say about Hunter Biden and They said: You have no authority. You’re was happening? His son and his son’s Devon Archer? He says this: not the President. The President said— business partner were raking in over $1 I said: Call him. I said: I’m telling you, Apparently Devon and Hunter both joined million a year from what was regarded you’re not getting the billion dollars. I said: the board of Burisma and a press release as one of the most corrupt Ukrainian You’re not getting the billion. I’m going to went out today. I can’t speak to why they be leaving here in—I think it was, what—6 companies in the energy sector, owned decided to, but there was no investment by hours. I looked at him and said: I’m leaving and controlled by one of the most cor- our firm in their company. in 6 hours. If the prosecutor is not fired, rupt oligarchs. Were Vice President What is the most telling thing about you’re not getting the money. Biden’s words and advice to Ukraine this? It is clear that the Chief of Staff Well, son of a bitch, he got fired, and they just hollow? According to the House and the Special Assistant to the Sec- put in place someone who was solid at the managers, the answer apparently is retary already knew who Devon was time. yes, they were empty words, at least because Mr. Heinz did not include his Mr. Counsel HERSCHMANN. Are we when it came to anyone questioning last name. It is just ‘‘Devon.’’ They ob- really to believe it was the policy of his son’s own sweetheart deal, his own viously knew who Hunter was because, our government to withhold $1 billion son’s deal with Ukraine’s corruption again, it is Hunter Biden. This is Chris of guarantees to Ukraine unless they and oligarchy. Heinz saying: ‘‘I can’t speak to why fired a prosecutor on the spot? Was Again, to raise Manager SCHIFF’s own they decided to join the board of that really our policy? We have all question: What kind of message did Burisma.’’ He is their business part- heard continuously from the managers this send to future U.S. Government of- ner—not that there were good cor- and many agree about the risks to the ficials? Your family can accept money porate reasons that they are going Ukrainians posed by the Russians. We from foreign corrupt companies? No there for corporate governance, not have heard the managers say that a problem. You can pay family members that they are there to enhance cor- slight delay in providing funding to of our highest government officials, porate transparency, not that they are Ukraine endangers our national secu- and no one is allowed to even ask ques- there to further U.S. policy, not that rity and jeopardizes our interests and, tions. they are there to help fight corruption therefore, the President must imme- What was going on? We have to just in Ukraine, not that they are there to diately be removed from office. Yet, accept now the House managers’ con- ensure boards of directors’ compensa- they also argue that it was the official clusory statements, like ‘‘sham,’’ ‘‘dis- tion and benefits are publicly dis- policy of our country to withhold $1 crediting,’’ even though no one has

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The House managers alleged that an additional efforts to support Ukraine’s And when it finally appeared that a Oval Office meeting with the President efforts to defend the sovereign terri- true Ukrainian corruption fighter had was critical to the newly elected tory, including the transfer of lethal assumed the country’s Presidency, Ukrainian President because it would defense weapons to the Ukraine mili- President Trump was not supposed to— signal to Russia, which had invaded tary. he was not permitted to—- follow up on Ukraine in 2014 and still occupied On March 23, the House of Represent- Vice President Biden’s own words Ukrainian territory, that Ukraine atives overwhelmingly passed a resolu- about fighting corruption and try to could count on American support. They tion urging President Obama to imme- make those words something other actually argued that it was a quid pro diately exercise the authority by Con- than empty? quo, that the President withheld this gress to provide Ukraine with a lethal According to the House managers, critical Oval Office meeting that would defensive weapons system. Ukrainian corruption is now only a pri- deter the Russians and save the The very next day, this Senate vate interest. It no longer is a serious Ukrainians because he wanted some- passed a unanimous resolution urging important concern for our country. thing personal. the President to prioritize and expedite Now I want to take a moment to Now, if that were, in fact, critical to the provision of defensive lethal and cover a few additional points about the President Zelensky for the safety of his nonlethal military assistance to July 25 telephone call in which the own citizens, he would have imme- Ukraine, consistent with U.S. national House managers believe that the Presi- diately jumped at the opportunity to interests and policies. dent of the United States, in their come to the Oval Office, especially As one Senator here stated in March words, was shaking down and pres- when President Trump offered him 2015, ‘‘Providing nonlethal equipment suring the President of Ukraine to do that invitation during the July 25 call. like night vision goggles is all well and his personal bidding. Let’s see what President Zelensky ac- good, but giving the Ukrainians the First of all, this was not the first tually said when he was invited to ability to see the Russians coming but telephone call that the President of the Washington on that call. not the ability to stop them is not the United States had with other foreign He does not say: Oh, this is what I answer.’’ leaders. Think about this for a mo- would like to do. It is critical for my Yet President Obama refused. He re- ment. The call was routed through the people. We will arrange it in a meeting. fused even in the face of support by Situation Room. It was a scheduled His response is: senior career professionals recom- call. There were other people on the I would be very happy to come and would mending he provide lethal weapons to call. There were other people taking be happy to meet you personally and get to the Ukrainians. notes. Obviously, the President was know you better . . . On the other hand, I be- By contrast, what did President aware of that fact. lieve that, on September 1, we will be in Po- Zelensky and the Russians know? They The House managers talked about land, and we could meet in Poland, hope- knew that President Trump did—did— the fact that the President did not fol- fully. provide that support. That, clearly, low the approved talking points as if If an Oval Office meeting were crit- was the most material thing to him, the President—any President—is obli- ical to President Zelensky, that was much more important than a meeting gated to follow approved talking the time to say so, not to suggest an- in the Oval Office. points. The last time I checked—and I other venue. The House managers also made much think this is clear to the American When we look at the evidence that is of the contention that President people—President Trump knows how to before us, it is clear that the only peo- Trump supposedly wanted President speak his mind. ple who talked about having an Oval Zelensky only to announce an inves- Do you remember the fake transcript Office meeting were lower level govern- tigation, not conduct it, but that con- that Manager SCHIFF read when he was ment employees who thought it was a tention makes no sense. President before the Intelligence Committee—his good idea. But for the principals in- Trump’s call with President Zelensky mob, gangster-like, fake rendition of volved, those who actually make the was in July of 2019—almost a year and the call? Well, I prosecuted organized decisions—President Zelensky, Presi- a half before our next election. Would crime for years. The type of description dent Trump—to them, it was not crit- only a bare announcement so far in ad- of what goes on—what House Manager ical, it was not material, and it was vance, with no followup, really have SCHIFF tried to create for the American definitely never a quid pro quo. What had any effect on the election, as the people—is completely detached from was important to President Zelensky managers claim? Would anyone have reality. It is as if we were supposed to was not an Oval Office meeting but the remembered the announcement a year believe that mobsters would invite peo- lethal weapons that President Trump or more later? ple they do not know into an organized supplied to Ukraine and the sanctions Ironically, it is the House managers crime meeting to sit around and take that President Trump enforced against who have put Burisma and its connec- notes to establish their corrupt intent. the Russians. That is what the tran- tion to the Bidens front and center in Manager SCHIFF, our jobs as prosecu- script of the July 25 call demonstrates. this proceeding, and now the voters tors—and I know you were one—would Let us now consider what President will know about it and probably will have been a lot easier if that were how Zelensky knew about the support that remember it. Be careful what you wish it worked. President Trump had provided to for. Think about what he is saying. Ukraine compared to the support—or Manager SCHIFF—well, there he goes Think about the managers’ position: more accurately, the lack thereof— again. He is putting words in the Presi- that our President decided with cor- that the prior administration had pro- dent’s mouth that were never there. rupt intent to shake down, in their vided to Ukraine. Again, look at the transcript of the words, another foreign leader, and he In February 2004, Russia began its July call. President Trump never asked decided to do it in front of everyone, in military campaign against Ukraine. about any announcement of any type a documented conversation, in the Against the advice and urgings of Con- of investigation, and President presence of people he did not even gress and of many in his own adminis- Zelensky told President Trump: know, just so he could get this personal tration, President Obama refused then I guarantee, as the President of Ukraine, benefit that was not in our country’s and throughout the remainder of his that all the investigations will be done open- interest. This logic is flawed—it is Presidency to provide lethal assistance ly and candidly. That I can assure you. completely illogical—because that is to Ukraine. What happened next? not what happened, and that is why In the House, Manager SCHIFF joined The House managers say President Manager SCHIFF ran away from the ac- many of his colleagues in a letter-writ- Zelensky did not want to get mixed up

VerDate Sep 11 2014 01:33 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00023 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.034 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE S602 CONGRESSIONAL RECORD — SENATE January 27, 2020 in U.S. politics, but it is precisely the Do we want the type of government President Obama: Democrats who politicized the issue. where questions about facially suspect This is my last election. After my election, Last August, they began circling the conduct are suppressed or dismissed as I will have more flexibility. wagons in trying to protect Vice Presi- illegitimate because someone is intimi- President Medvedev responds: dent Biden, and they are still doing it dating or screams or is just too impor- I understand. I will transmit this informa- in these proceedings. They contend tant? No. That is precisely when an in- tion to Vladimir. that any investigation into the mil- vestigation is most important. As we all know, it is Vladimir Putin. lions of dollars of payments by a cor- Last Thursday night, Manager As you just saw in 2012, President rupt Ukraine company—owned by a JEFFRIES provided us with the Demo- Obama asked the Russians for space corrupt Ukraine oligarch—to the son of crats’ standard for abuse of power. until after the upcoming 2012 election, the second highest officeholder in our He said: ‘‘Abuse of power occurs when after which he would have more flexi- land, who was supposed to be in charge the President exercises his official bility. of fighting corruption in Ukraine, to be power to obtain a corrupt personal ben- Now, let me apply Mr. JEFFRIES’ and a sham, debunked. But there has never efit while ignoring or injuring the na- the House managers’ three-part test for been an investigation, so how could it tional interest.’’ abuse of power. be a sham—simply because the House Mr. JEFFRIES and the House man- managers say so? agers contend that, under this stand- One, the President exercises his offi- Which brings me to yet another one ard, President Trump has committed cial power. President Obama’s actions of the House managers’ baseless con- an impeachable offense and must be clearly meet the test for exercising of- tentions—that President Trump raised immediately removed from office. But ficial power because in his role as head of state during the nuclear security the matter with President Zelensky be- if Manager JEFFRIES’ standard applies, cause Vice President Biden had just an- then where were these same Demo- summit, after asking President nounced his candidacy for President. crats’ calls for impeachment when Medvedev for space, he promised him But, of course, it was far from a secret uncontroverted, smoking-gun evidence that ‘‘missile defense can be solved.’’ that Vice President Biden was planning emerged that President Obama had vio- What else did that mean but solved in to run. lated their standard? a way favorable to the Russians, who What had, in fact, changed? The American people understand this were dead set against the expansion of First, President Zelensky had been basic notion as equal justice under the a U.S. missile defense system in Eu- elected in April on an anti-corruption law. It is as American as apple pie. Yet rope? platform. In July, running on the same the House managers want to apply Two, to obtain a corrupt personal platform, his party took control of the their own version of selective justice benefit. President Obama’s actions Ukrainian Parliament. That made it here, which applies only to their polit- were clearly for his own corrupt per- the opportune time to raise the issue ical opponents. They want one system sonal benefit because he was asking an because finally there was a receptive of justice for Democrats and another adversary for space for the express pur- government in Ukraine that was com- system of justice for everyone else. pose of furthering his own election mitted to fighting precisely the kind of You do not need to take my word for it; chances. highly questionable conduct displayed let’s walk through the facts. Again, President Obama said: by Burisma in its payments to Hunter On March 26, 2012, on the eve of the This is my last election. After my election, Biden and his partner, just as Joe 2012 Nuclear Security Summit in I have more flexibility. Biden had raised years before. Seoul, South Korea, President Obama President Obama knew the impor- There are two other things. met with Russian President Dmitry tance of missile defense in Europe but In late June, ABC News ran a story enti- Medvedev to discuss one of the pressing decided to use that as a bargaining tled ‘‘Hunter Biden’s foreign deals. Did Joe Biden’s son profit off of his father’s position issues in the U.S. national security in- chip with the Russians to further his as Vice President?’’ terests—missile defense. own election chances in 2012. Then, just a couple of weeks before How important was the issue of mis- Three, while ignoring or injuring our President Trump’s telephone call with sile defense to the strategic relation- national interest. As President President Zelensky, the New Yorker ship between the United States and Obama’s Defense Secretary said, ‘‘Mis- magazine—not exactly a supporter of Russia? siles would give us the ability to pro- As President Obama’s Defense Sec- President Trump’s—ran an expose— tect our troops, our bases, our facili- ‘‘Will Hunter Biden Jeopardize His Fa- retary Robert Gates said in June 2010, ties, and our allies in Europe.’’ ther’s Campaign?’’—and went through upgraded missile interceptors in devel- Surely, sacrificing the ability to pro- some of the facts that we do know opment ‘‘would give us the ability to tect our troops and our allies would in- about Hunter Biden’s involvement with protect our troops, our bases, our fa- jure the national interest. Yet Presi- Burisma and his involvement with the cilities and our allies in Europe.’’ dent Obama was willing to barter away Gates continued: Chinese company. the safety of our troops and the safety The New Yorker reporter—again, this There is no meeting of the minds on mis- of our allies in exchange for space in was in July, just a couple of weeks be- sile defense. The Russians hate it. They have the upcoming election. hated it since the late 1960s. They will al- fore the phone call—said that some of In short, President Obama leveraged ways hate it, mostly because we will build it, the power of his office to the detriment Vice President Biden’s advisers were and they won’t. worried that Hunter would expose the of U.S. policy on missile defense in During the Nuclear Security Sum- order to influence the 2012 election Vice President to criticism. mit, President Obama had a private ex- A former senior White House aide solely to his advantage. And we never change with Russian President told the New Yorker reporter that would have known had President Medvedev that was picked up on a hot Hunter’s behavior invited questions Obama realized that the microphone microphone. was on; that there was a hot mic. about whether he was ‘‘leveraging ac- (Text of Videotape presentation:) cess for his benefit.’’ The reporter One could easily substitute President President OBAMA. This is my last elec- Obama’s 2012 exchange with President wrote: ‘‘When I asked members of tion. After my election, I have more flexi- Biden’s staff whether they did raise bility. Medvedev into article I of the House’s their concern with the Vice President, President MEDVEDEV. I understand. I will Impeachment Articles against Presi- several of them said they had been too transmit this information to Vladimir, and I dent Trump. intimidated to do so.’’ stand with you. Using the powers of his high office, ‘‘Everyone who works for him has President Obama said: President Obama solicited interference been screamed at,’’ a former adviser On all these issues, but particularly mis- of a foreign government, Russia, in the told the reporter. ‘‘I don’t know wheth- sile defense, this can be solved, but it’s im- 2012 U.S. Presidential election. He did er anyone has been intimidated by Vice portant for him to give me space. so through a scheme or course of con- President Biden or has been screamed President Medvedev responded: duct that included soliciting the Gov- at by him about Burisma or his son’s Yeah, I understand. I understand your mes- ernment of Russia to give him ‘‘space’’ involvement.’’ sage about space. Space for you. on missile defense that would benefit

VerDate Sep 11 2014 01:33 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00024 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.036 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE January 27, 2020 CONGRESSIONAL RECORD — SENATE S603 his reelection and influence the 2012 And how do we know that they know cial review of congressional subpoenas, U.S. Presidential election to his advan- it? Because they went on vacation and I think we all remember Fast and tage. after they adopted the Articles of Im- Furious. In doing so, President Obama used peachment. They did not cancel their The same attorney, when he wrote to the powers of the Presidency in a man- recess. They did not rush back to de- the House chair, said: ner that compromised the national se- liver the Articles of Impeachment to The House chairmen, Mr. SCHIFF and Mr. curity of the United States and under- the Senate because of this supposed NADLER, are mistaken to say the lawsuit is mined the integrity of the U.S. demo- terrible imminent threat to our na- intended to delay or otherwise obstruct the cratic process. He thus ignored and in- tional security. What did they do? committees’ vital investigatory work. jured the interest of the Nation. (Text of Videotape presentation:) He continued: Does it sound familiar, House man- Speaker PELOSI. Urgency. Nor has this lawsuit been coordinated in agers? It should, as the case against Mr. SCHIFF. Timing is really driven by any way with the White House any more President Obama would have been far the urgency. than it has been coordinated with the House stronger than the allegations against Mr. SWALWELL. The urgency. of Representatives. If the House chooses not President Trump. Mr. NADLER. Nothing could be more ur- to pursue through subpoenaed testimony, let President Obama’s abuse of power to gent. the record be clear that is the House’s deci- Mr. RICHMOND. The urgency. sion, if they come before you and they blame benefit his own political interests was Speaker PELOSI. And urgent. And urgent. there and is here now for everyone to the administration and they blame you if Mr. SWALWELL. There is an urgency, you you don’t subpoena witnesses and have them hear. It was a direct, unquestionable know, to this. before you. quid pro quo. No mind reading was Mr. NADLER. Then we must move swiftly. Yet even in the face of this over- needed there. Where were the House Mr. SWALWELL. We don’t have time to screw around. whelming evidence, they claim that managers then? Speaker PELOSI. It’s about urgency. the President is to blame for their deci- And that points out the absurdity of Mr. TAPPER. House Speaker NANCY the House managers’ case against sion to withdraw their own subpoenas PELOSI is still holding on to the Articles of or not issue others. Their choice, but President Trump. It was President Impeachment. Obama, not President Trump, who was the President is responsible. That is Mr. Counsel HERSCHMANN. Ur- one of their claims. It is ludicrous. weak on Russia and weak on support to gency? Urgency, for which you want to Ukraine. They are blaming the President be- immediately remove the President of cause they decided on their own not to President Obama caved to Russia and the United States? You sat on the arti- Putin on missile defense when he de- seek judicial review and enforcement cles for a month—the longest delay in of their own subpoenas and for some cided to scrap the U.S. plans to install the history of our country. missile bases in Poland. Yet he criti- witnesses never even issued subpoenas. They adopted them on Friday, De- In their minds, that is impeachable. cized Senator ROMNEY during the 2012 cember 13, 2019—Friday the 13th—went Presidential campaign when Senator Manager NADLER spoke eloquently on vacation, and finally decided after back before the House Judiciary Com- ROMNEY said Russia was the greatest one of their Democratic Presidential geopolitical threat to the U.S. mittee hearing in December of 1998. He debates had finished and after the BCS said: (Text of Videotape presentation:) football championship game, that it President OBAMA. I’m glad that you rec- There must never be a narrowly voted im- was time to deliver them. peachment or an impeachment substantially ognize that al-Qaida’s a threat because a few What happened to their national se- months ago when you were asked what’s the supported by one of our major political par- biggest geopolitical threat facing America, curity interest argument? Wasn’t that ties and largely opposed by the other. Such you said Russia. Not al-Qaida, you said Rus- the reason that they said they had to an impeachment would lack legitimacy, sia, and the 1980s are now calling to ask for rush to vote? It is urgent, they told us. would produce divisiveness and bitterness in their foreign policy back because, you know, No due process for this President. It is our politics for years to come, and will call the Cold War’s been over for 20 years. a crisis of monumental proportion. Our into question the very legitimacy of our po- Mr. Counsel HERSCHMANN. Now, national security is at risk every addi- litical institutions. when it is politically convenient, the tional day that he is in office, they tell Manager NADLER was right then, and Democrats are saying the same thing us. it is equally true today. Divisiveness that President Obama criticized Sen- The House managers also used the and bitterness. Divisiveness and bitter- ator ROMNEY for saying. In fact, they same excuse for not issuing subpoenas ness. Listen to his words. are basing their entire politicized im- for testimony. They had no time for Impeachments by one party cause di- peachment on this inversion of reality, the normal judicial review. They even visiveness and bitterness in our coun- this claim that President Trump is not complained about the judicial review try. That is what a partisan impeach- supporting Ukraine far more than the process sitting in this Chamber before ment leads to. prior administration. the Chief Justice of the U.S. Supreme Sadly, when Manager NADLER elo- President Obama caved on missile de- Court—a judicial review in which the quently warned against divisiveness fense in late 2009. His hot mic moment judge agreed to an expedited schedule. and bitterness, the House did not fol- occurred in March 2012. His reelection Even that was not good enough for low his admonition. They did not heed was 8 months later. Two years later, in them when they issued the subpoenas. his advice, and that is one of the rea- March 2014, Russia invaded Ukraine One of the lawyers for the subpoe- sons we are sitting here today with Ar- and annexed Crimea. President Obama naed witnesses wrote to the House gen- ticles of Impeachment that are not refused to provide lethal aid to Ukraine eral counsel: ‘‘We are dismayed that found in our Constitution or the evi- to enable it to defend itself. Where the House committees have chosen not dence and are brought simply for par- were the House managers then? to join us in seeking resolution from tisan politics. The House managers would have the the judicial branch of this momentous This is a sad time for all of us. This American people believe that there is a constitutional question as expedi- is not a time to give out souvenirs, the threat—an imminent threat—to the tiously as possible.’’ pens used to sign two Articles of Im- national security of our country for He continued: ‘‘It is important to get peachment, trying to improperly im- which the President must be removed a definitive judgment from the judicial peach our country’s representative to immediately from the highest office in branch determining their constitu- the world. the land because of what? Because he tional duty in the place of conflicting This is not the time to try to get digs had a phone call with a foreign leader demands of the legislative and execu- in that the President will always be and discussed corruption? Because he tive branches.’’ impeached because we had the major- paused for a short period of time giving Isn’t that the point? Isn’t that how ity and we could do it to you and we away our tax dollars to a foreign coun- our system of government works? Isn’t did it to you. It is wrong. It is not what try? That is their theory. that how it has always worked? Isn’t the American people deserve or want. It is absurd on its face. Not one that how it is supposed to work? Sadly, the House managers do not American life was in jeopardy or lost These same Democrats defended trust their fellow Americans to choose by this short delay, and they know it. other administrations who fought judi- their own President. They do not think

VerDate Sep 11 2014 01:33 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00025 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.037 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE S604 CONGRESSIONAL RECORD — SENATE January 27, 2020 that they can legitimately win an elec- Mr. Chief Justice, Members of the of power, and obstruction of Congress. tion against President Trump, so they Senate, House managers, we are going But unlike how House managers—and, need to rush to impeach him imme- to do two things this evening. We are indeed, the entire House—45 years later diately. That is what they have contin- going to first hear from former inde- in December 2019 proceeded here, bipar- ually told the American people, and pendent counsel Robert Ray. He is tisan consensus in 1974, among both that—that is a shame. going to discuss issues of how he was House Democrats and House Repub- We, on the other hand, trust our fel- involved in the investigation, the legal licans, was the order of the day. In- low Americans to choose their Presi- issues, some of the history of how that deed, it became apparent then, that dent. Choose your candidate. Let the works, and then we will conclude this narrow partisan views aside, the House Senators who are here who are trying evening with a presentation from Pro- Judiciary Committee would step into to become the Democratic nominee try fessor Dershowitz. the breach only insofar as evidence of to win that election, and let the Amer- With that, I yield my time, Mr. Chief criminal Presidential conduct war- ican people choose. Justice, to Robert Ray. ranted. Maybe—maybe they are concerned Mr. Counsel RAY. Mr. Chief Justice, The tapes of Oval Office conversa- that the American people like histori- Members of the Senate, distinguished tions involving the President provided cally low unemployment. Maybe the House managers, and may it please this that evidence. The Supreme Court, in American people like that their 401(k) Court of Impeachment, I stand before effect, overruled the claim of executive accounts have done extremely well. you today in defense of my fellow privilege and ordered the release of the Maybe the American people like prison Americans, who in November 2016 tapes to the House Judiciary Com- reform and giving people a second elected Donald Trump to serve the peo- mittee. chance. ple as their President. Their reasons As a result, 3 days later, the high Tellingly, some of these House man- for that vote were as varied as any im- crime of obstruction of justice, includ- agers worked constructively with this portant decisions are, but their collec- ing suborning perjury tethered to a administration to give Americans a tive judgment, accepted as legitimate second Article of Impeachment 2 days second chance. That was the public in- under our Constitution, is deserving of after that, alleging abuse of power, was terest. That is what the country de- my respect and yours. approved by the House Judiciary Com- mands. That is what society deserves. For only the third time in our Na- mittee by a vote of 27 to 11 and 28 to 10, Maybe the American people like an tion’s history, the Senate is convened respectively. administration that is fighting the to try the President of the United The second Article of Impeachment opioid epidemic. Maybe the American States on Articles of Impeachment. alleged, among other things, unlawful people like secure borders. Maybe the Those articles do not allege crimes. use of the CIA and its resources, in- American people like better trade The Constitution, the Framers’ intent, cluding covert activity in the United States and interference with the law agreements with our biggest trading and historical practice all dictate that enforcement actions of the FBI to ad- partners. Maybe the American people well-founded Articles of Impeachment vance the coverup; that is, the criminal like other countries sharing in the bur- allege both that a high crime has been conspiracy to obstruct justice charge den when it comes to foreign aid. committed, and that, as such, removal from office is warranted only when in the first Article of Impeachment. Maybe the American people actually The crimes alleged were serious, in- such an offense also constitutes an like low taxes. In other words, maybe volving unlawful electronic surveil- abuse of the public trust; that is, in the the American people like their current lance of an opposing political party, President—a President who has kept case of the President, a violation of his paying hush money out of a White his promises and delivered on them. oath of office. Both are required and House safe to burglars and other co- If you think Americans want to neither one, by clear and unmistakable conspirators to silence cooperation abandon our prosperity and our unprec- evidence, is shown here by these Arti- with law enforcement, and attempts to edented successes under this President, cles of Impeachment. alter testimony under oath. then convince the electorate in Novem- I am here this evening in this Cham- Six Republican House committee ber at the ballot box. Do not try to im- ber distinctly privileged to represent members joined all 21 Democrats in properly interfere with an election that and defend the President of the United supporting those two articles. My Con- is only months away, based on these States on the facts, on the law, and on gressman was among those six Repub- Articles of Impeachment. the constitutional principles that must lican House Members. Another one of In your trial memorandum that you be paramount to you, Members of the the six was then a young Congressman submitted here before the Senate, you Senate, in deciding the great question from Maine, who later became a Mem- speak about the Framers of the Con- of whether these articles warrant, with ber of this body, serving with distinc- stitution believing that President or without witnesses, the removal of tion as a Senator and later as Presi- Trump’s alleged conduct is their the President from office. dent Bill Clinton’s Secretary of De- ‘‘worst nightmare’’ and that they Because there is and can be no basis fense. That young Congressman was would be horrified. in these articles on which the Senate Bill Cohen. A third of the six was Rep- In fact, sadly, sadly, it is the House can or should convict a President on resentative Caldwell Butler, a Repub- managers’ conduct in bringing these what is alleged, the President must not lican from Virginia, whose papers are baseless Articles of Impeachment that be removed from office. That judgment housed at Washington and Lee Univer- would clearly be their and our worst is reserved to the people in the ordi- sity in Lexington, VA, in the State nightmare. nary course of elections, the next of where I grew up and where I later went Thank you. which is just over 9 months away. to law school. The CHIEF JUSTICE. The majority Now, 40 years ago, in 1980, I first Together, these six Republicans made leader is recognized. came to Capitol Hill as a legislative in- history. They did so with no sense of RECESS tern for a Congressman who only 6 triumph—in today’s parlance, no fist Mr. MCCONNELL. Mr. Chief Justice, years earlier had played an important bumps—but in the words of my Con- I think we are looking at a 45-minute and critical role in the impeachment gressman, only ‘‘with deep reluctance’’ break for dinner. proceedings against President Richard and only because the evidence was I ask unanimous consent that the Nixon. The Congressman of whom I clear and unmistakable of unlawful ac- Senate stand in recess. speak, whom I came to respect im- tivities by the President in a criminal There being no objection, at 6:01 mensely, served then, in 1974, in the coverup that was—in the concluding p.m., the Senate, sitting as a Court of House Judiciary Committee. He was language of the first Article of Im- Impeachment, recessed until 6:48 p.m., tasked in the summer of 1974, together peachment—‘‘contrary to his trust as and thereupon reassembled when called with his colleagues, in evaluating and President.’’ to order by the CHIEF JUSTICE. voting on, as most of the House man- As to the third article in the Nixon The CHIEF JUSTICE. The Senate agers here have, Articles of Impeach- impeachment, that article charging ob- will come to order. Ready to proceed? ment. Those articles included the struction of Congress did not enjoy bi- Mr. Counsel SEKULOW. Yes, sir. crime of obstruction of justice, abuse partisan support but instead was voted

VerDate Sep 11 2014 05:01 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00026 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.038 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE January 27, 2020 CONGRESSIONAL RECORD — SENATE S605 on by the House Judiciary Committee elected by the people. And for what? that we are talking about here, the re- along party lines by a vote of 21 to 17. Articles of Impeachment that do not pository of and entrusted under the Republicans objected then to the third even allege crimes. Constitution with all of the executive article in the face of the President’s President Trump is right. That power of the United States—in other good-faith prior claim to executive course, if sustained, cheapens the im- words, an entire branch of govern- privilege by withholding certain evi- peachment process and, thus, is an ment—removal from office cannot be dence until such time as the matter American tragedy all its own. based upon an impeachable offense or was definitively resolved by the Su- Indeed, during the impeachment trial offenses which are, in essence, nothing preme Court. 21 years ago in January 1999, none more than—paraphrasing President My point in mentioning these three other than President Clinton’s highly Gerald Ford now—whatever a partisan votes by the House Judiciary Com- respected White House Counsel Charles majority of the House of Representa- mittee is simply this: Count votes, and Ruff stated it best: ‘‘To argue then, as tives considers them to be. do the math. I understand that you all the managers do, that the phrase To supplement that cited statement have been deprived of your phones and, ‘other high crimes and misdemeanors’ 50 years ago, in 1970, from then-Con- thus, a calculator app, so I will do it was really meant to encompass a wide gressman Jerry Ford in connection for you. range of offenses . . . simply flies in with the prospect of potentially im- A 27-to-11 vote was not only bipar- the face of the clear intent of the fram- peaching a Supreme Court Justice, tisan, as I have indicated, but over- ers, who carefully chose their lan- Ford pointedly clarified that executive whelmingly so—indeed, over 70 percent; guage, knew exactly what those words branch impeachments are different be- that is to say, greater than a two- meant and knew exactly what risk cause voters can remove the President, they intended to promote against.’’ thirds supermajority. the Vice President, and all persons Counsel Ruff went on to explain: One That vote sent a powerful signal to holding office at their pleasure at least the full House and indeed the Senate of those concerns and risks was that ‘‘impeachment be limited and well de- every 4 years. To remove a President in that impeachment was overwhelmingly midterm—it has been tried before and bipartisan and, therefore, politically fined.’’ For our purposes here, what is re- never done—would indeed, he said, re- and legally legitimate. quired is both that crimes be alleged quire crimes of the magnitude of trea- President Nixon’s fate was sealed, son and bribery. and the result was inevitable. Thus, and that those crimes be of the type that, in particular, are so serious that Professor Akhil Amar of Yale Law less than 2 weeks after that initial they—again, in Mr. Ruff’s words—‘‘sub- School made largely the same point committee vote on impeachment, the vert our system of government and during the Clinton impeachment about President resigned. the danger presented through Presi- During the course of those pro- would justify overturning a popular election.’’ Otherwise, what you have— dential impeachment of transforming ceedings, my Congressman commented an entire branch of government: simply and plainly that it was, in his in Tocqueville’s words—is legislative tyranny. When they remove a duly elected Presi- words, ‘‘a great American tragedy.’’ I respectfully submit, Members of the dent, they undo the votes of millions of ordi- But the greater point was—and is—that Senate, taken in its proper context, nary Americans on Election Day. This is not impeachment was never designed or in- that is what Alexander Hamilton well something that Senators should do lightly, tended to be a partisan tool and was to lest we slide toward a kind of parliamentary understood and meant, and so did my government that our entire structure of gov- be undertaken only as a last resort. Congressman. That Congressman was, This then brings me to what was in- ernment was designed to repudiate. of course, Hamilton Fish, Jr. Actually, tended by the Framers of the Constitu- In hammering home the constitu- he was not really a junior but Ham- tion relative to impeachment. That tional uniqueness of Presidential im- ilton Fish IV. His great-grandfather subject will be addressed at some peachments, he emphasized the case of was also Hamilton Fish, who was born length by my colleague Professor Richard Nixon and distinguished it in 1808, later served as Governor of New Dershowitz, but, for now, let me just from Andrew Johnson; that is to say, York, a U.S. Senator immediately be- say that much has been said by House only when extremely high crimes and fore the Civil War, and, notably, as managers in reliance on Alexander gross abuses of official power indeed President Ulysses Grant’s Secretary of Hamilton’s oft-quoted statement in pose a threat to our basic constitu- State. But at the time back in 1980, Federalist No. 65. That is the one re- tional system, a threat as high and what I didn’t realize—even though now, peatedly taken out of context and cited truly as malignant to democratic gov- perhaps, it is so obvious—the original in favor of an expansive scope of juris- ernment as treason and bribery, he rea- Hamilton Fish was named after his diction by Congress over alleged of- soned, would the Senate ever be justi- parents’ best friend, none other than fenses. fied in nullifying the votes of millions Alexander Hamilton himself. In Hamilton’s words, ‘‘which proceed What Congressman Hamilton Fish, of Americans and removing a President from misconduct of [a] public [official from the Watergate era, courageously from office. constituting] the abuse of or violation understood is the same historical les- My point is this: History—our Amer- of some public trust.’’ The irony that son that Jeffrey A. Engel, founding di- ican history—matters. To listen to how Hamilton—the greatest proponent in rector of the Center for Presidential the House managers would have it, Ar- this country of executive and Presi- History at Southern Methodist Univer- ticles of Impeachment are merely—as dential authority that perhaps ever sity, has written about in a coauthored Chuck Ruff warned a generation ago— lived—should be front and center in 2018 book on impeachment: empty vessels into which can be poured this partisan impeachment effort to re- The charge must be treason, bribery any number of charges, even those con- move a duly elected President from of- or other high crimes and mis- sidered and abandoned. fice is apparently lost on House im- demeanors. It must be one for which At least in the case of President Clin- peachment managers. I dare say that clear and unmistakable proof can be ton’s impeachment, the articles actu- Hamilton would roll over in his grave produced. Only if the evidence actually ally charged crimes. The Senate there- at the end of Wall Street in New York produced against the President is in- after determined, by its vote in that City to know that, contrary to what he deed irrefutable such that his own con- case, in effect, that while those explicitly acknowledged in Federalist stituents—in this case, the 63 million crimes—perjury and obstruction of jus- No. 69, a President can only be removed people, like me, who voted for Presi- tice—may have been committed, those from office ‘‘upon conviction of trea- dent Trump—accept his guilt of the of- crimes were not high enough crimes son, bribery, or other high crimes or fense charged in order to overwhelm- damaging to the body politic to war- misdemeanors.’’ We should just read ingly persuade a supermajority of rant the President’s removal from of- the word ‘‘crime’’ right out of the im- Americans, and, thus, their Senators, fice. peachment clause of the Constitution of malfeasance, warranting his removal That judgment was, of course, within and proceed merrily along the way to- from office. this body’s discretion to render, and it ward an impeachment trial, with wit- And, finally, because it is the Presi- has been accepted as such by the coun- nesses, no less, of a President duly dent of the United States, after all, try—whether you agreed with it or

VerDate Sep 11 2014 01:33 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00027 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.041 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE S606 CONGRESSIONAL RECORD — SENATE January 27, 2020 not—as legitimate. It is also one that The lesson for me was a simple one we are going to say that the Presi- is historically consistent with Hamil- that I am sure every American citizen, dent’s conduct was criminal nonethe- ton’s views and Madison’s, too, con- whatever their own experience or polit- less. Aside from being exceedingly un- cerning the proper scope of impeach- ical perspective, can understand: Be fair to call something criminal and not ment as applied to a President. humble and act with humility. Never stand behind the allegation and actu- When I entered the scene and suc- be too sure that you are right. ally charge it, it just ain’t so. ceeded my colleague and cocounsel Today, 20 years later, what have we I have heard House Manager HAKEEM here, Judge Kenneth Starr, as inde- learned from that experience? I fear JEFFRIES argue before this body that pendent counsel in October of 1999, it that the answer to that question is he and his team have overwhelming was left for me to decide whether pros- nothing at all. If these Impeachment evidence of an explicit—his word, not ecution of President Clinton following Articles now are sustained beyond mine—quid pro quo by the President; impeachment, nonetheless, was war- summary resolution in favor of acquit- that is, an explicit, purported, and pro- ranted, consistent with the Depart- tal, impeachment in the future lit- posed exchange by President Trump of ment of Justice’s Principles of Federal erally will mean not only that proof of something of personal benefit to him- Prosecution. That matter was exhaus- high crimes is no longer necessary to self in return for an official act by the tively considered in the midst of a Fed- sustain the effort but that no crime at U.S. Government. eral grand jury investigation that I all is sufficient so long as a partisan As I have explained as far back as commissioned in order to decide, first, majority in the House says so. November of last year in a TIME maga- whether crimes, in fact, had been com- Thus, during the past 4 months alone, zine cover story, the problem with this mitted. I found that they had, and I we have witnessed the endless proces- legal theory is that an unlawful quid later said so publicly in the final report sion of legal theories used to sustain pro quo is limited to those arrange- expressly authorized and mandated by this partisan impeachment—from trea- ments that are corrupt; that is to say, Congress concluding the Lewinsky in- son to quid pro quo, to bribery, to ex- only those that are clearly and unmis- vestigation. tortion, to obstruction of justice, to so- takably improper are therefore illegal. Significantly, though, I also deter- liciting an illegal foreign campaign And, in the eyes of the law, the spe- mined that the prosecution of the contribution, to a violation of the Im- cific, measurable benefit that an inves- President, while in, or once he left of- poundment Control Act—to who knows tigation—or even the announcement of fice, would not be in the national inter- what all is next. an investigation—against the Bidens est, given alternative available means, What you are left with, then, are con- might bring President Trump is, at short of prosecution, in order to hold stitutionally deficient articles aban- best, nebulous. the President accountable for his con- doning any pretense of the need to al- I should add here also that any effort duct. Those means included a written lege crimes that are another vehicle or to contend that this purported thing of acknowledgement by the President 2 weapon, if you will, in order to damage value also constitutes an illegal for- years after his Senate trial that his the President politically in an election eign campaign contribution to the testimony under oath before the grand year. President of the United States is jury had, in fact, been false and a re- It is, I submit, decidedly not in the fraught with doubt as a matter of law. lated agreement to suspend his law li- country’s best interest to have the Indeed, the Justice Department has cense. prosecution of the grave issue of im- said as much. So, too, have courts The price paid by President Clinton peachment and the drastic prospect of which have struggled since at least the was indeed high, and it stemmed, in removal from office become just poli- early 1990s with application of the Fed- the end, from the need to vindicate the tics by other means, any more than it eral anticorruption laws to situations principle, first raised most promi- would be appropriate for the huge like this when an in-kind benefit in the nently during Watergate, that no per- power of prosecution of offenses under form of campaign interference or as- son, including the President, is above the Federal Criminal Code to be exer- sistance is alleged to be illegal. None of the law. cised not on the merits, without fear or this would permit the requisite finding Despite President Clinton’s subse- favor, but instead as a raw, naked, and supported by clear and unmistakable quent protestation in his memoirs that pernicious exercise of partisan power evidence of a violation of law necessary I was just another Federal prosecutor and advantage. to sustain impeachment as an abuse of out to extract, in his words, a pound of I have spent the better part of my power. flesh, I credit the President to this day professional life, for over 30 years—as a But back to Manager JEFFRIES’ con- with agreeing to do what was necessary Federal prosecutor for 13 years through tention, proof of an explicit quid pro in order to exercise my discretion not two independent counsel investigations quo by the President—which, par- to prosecute; namely, that for the good and now as a defense lawyer for over 17 enthetically, as previously noted by of the country and recognizing the years—trying my level best always to Mr. Cipollone, is nowhere to be found unique place that the President—in- ensure that politics and prosecution do in the Articles of Impeachment—would deed, any President—occupies in our not mix. It must not happen here. A have required a very different tele- constitutional government, account- standardless and partisan impeach- phone call than the one President ability and discretion go hand in hand ment is illegitimate and should be re- Trump actually had with Ukraine and permitted—indeed, demanded— jected as such overwhelmingly by this President Zelensky. As I tried to ex- such an appropriate resolution. It en- body, I hope and submit, or alter- plain in the TIME magazine piece, an abled the country to move on, and it natively and, if need be, by only a par- explicit quid pro quo for alleged im- was as much, if not more, a credit to tisan Republican majority—for the proper campaign interference would Bill Clinton than to any credit I re- good of the country. have had President Trump saying to ceived or deserved that we were able to Turning now to what the House man- his counterpart in Ukraine, in words or reach agreement and avoid any further agers have alleged, regarding the first substance, ‘‘Here is the deal,’’ and fol- partisan recriminations or interference article, the House Judiciary Com- lowed up by explicitly linking a de- with the will of the American people in mittee report on impeachment con- mand for an investigation of the Bidens electing and reelecting President Clin- tains a rather extraordinary state- to the provision or release of foreign ton in the first place—and his suc- ment. It says as follows: ‘‘Although aid. None of that was said or ever hap- cessor, President George W. Bush. President Trump’s actions need not pened. The call transcript itself dem- In short, I was absolutely mindful rise to the level of a criminal violation onstrates that beyond any doubt. In and exceedingly concerned throughout to justify impeachment, his conduct the President’s words, read the tran- my tenure as independent counsel that, here was criminal.’’ So, in short, we script. although crimes had been committed, needn’t bother in an Impeachment Ar- By the way, the demand character- Bill Clinton was the elected official ticle charging the President with a ization apparently creeps into this placed in office by voters throughout crime, implicitly recognizing that phone call largely as the result of the Nation and head of the executive there is insufficient evidence to prove Army LTC Alexander Vindman’s testi- branch, and I was not. that such a crime was committed, but mony where he equates a request based

VerDate Sep 11 2014 01:33 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00028 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.042 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE January 27, 2020 CONGRESSIONAL RECORD — SENATE S607 upon his military experience, and hav- v. Sun-Diamond before the Supreme about who is right. Law review articles ing listened in on the call, by a supe- Court over 20 years ago in 1999. That have been written about it, one as re- rior officer—in this case, the Com- proposition lost—unanimously. The cently as last June in the Harvard Law mander in Chief—as the same thing as vote was 9 to 0. Review. an order in the chain of command. In any event, the coveted meeting— Congress, through its arm, the GAO, While all of this may be true in the and it was, after all, just a meeting, had an opposing view from that of the military, it goes without saying that whether at the White House or not— administration and OMB—big surprise. President Zelensky, as the leader and was not permanently withheld. It later I am reminded of one of President head of a sovereign nation, was not and happened between the two Presidents Kennedy’s famous press conferences, is not in our military chain of com- at the United Nations in New York where he was asked to comment about mand. City at the first available opportunity a report that the Republican National I say that to you, Members of the in September 2019. Committee had voted a resolution that Senate, as the son of a U.S. Army colo- Finally, the argument by Chairman concluded he was a total failure as nel and Vietnam war veteran buried in JERRY NADLER that this call by Presi- President. He famously quipped: ‘‘I am Arlington National Cemetery and as dent Trump with President Zelensky sure that it was passed unanimously.’’ the father of a U.S. Army major cur- represented an ‘‘extortionate demand’’ That is all that this is here: politics. rently serving with President Trump’s is patently ridiculous. The essential No more, no less. And in the end, what Space Force Command in Aurora, CO, element of the crime of extortion is are we talking about? The temporary near Denver. pressure. No pressure was exercised or hold was lifted and the funds were re- With all due respect, Lieutenant exerted during the call. Ukrainian offi- leased, as they had to be under the law Colonel Vindman’s testimony in this cials, including President Zelensky and as acknowledged was required by regard is at best, I submit to you, dis- himself, have since repeatedly denied none other than Acting Chief of Staff torted and unpersuasive. that any such pressure existed. Indeed, Mick Mulvaney, 19 days before the end Next, the purported implicit link be- to the contrary, the evidence strongly of the fiscal year on September 11, 2019. In any event, an alleged violation of tween foreign aid and the investiga- suggests Ukraine was perfectly capable the Impoundment Act can no more sus- tions, or the announcement of them, is of resisting any efforts to entangle tain an Impeachment Article than can weak. The most that Ambassador Gor- itself in United States domestic party an assertion of executive privilege in don Sondland was able to give was his politics and partisanship. opposition to a congressional subpoena, presumption that such a link likely ex- What, then, remains of the first Arti- absent a final decision of a court order- isted, and that presumption was flatly cle of Impeachment? No crimes were contradicted by the President’s express ing compliance with that subpoena. committed. Indeed, no crimes were Mere assertion of a privilege or ob- denial of the existence of a quid pro even formally alleged. In that regard, quo to Ambassador Sondland as well as jection in a legitimate interbranch dis- what exactly is left? It is not treason. pute is a constitutional prerogative. It to Senator RON JOHNSON. Ukraine is our ally, not our enemy or The President was emphatic to Am- should never result in an impeachable our adversary. And Russia is not our bassador Sondland. The President said: offense for abuse of power or obstruc- enemy, only our adversary. It is not I want nothing. I want no quid pro quo. I tion of Congress. And, yet, in a last- just want Zelensky to do the right thing, to bribery. There is no quid pro quo. It is ditch effort to reframe its first Article do what he ran on. not extortion—no pressure. of Impeachment on abuse of power, It is not an illegal foreign campaign And to Senator JOHNSON, the same House managers, as part of the House contribution. The benefit of the an- thing, just two words: ‘‘No way.’’ Judiciary Committee report, have gone Recognizing this flaw in the testi- nouncement of an investigation is not back into history—always a treach- mony, House managers have focused tangible enough to constitute an in- erous endeavor for lawyers. They now instead on an alternate quid pro quo kind campaign contribution war- argue that President Andrew Johnson’s rationale, that the exchange was condi- ranting prosecution under Federal law. impeachment, from over 150 years ago tioned on a foreign head-of-state meet- It is also not a violation of the Im- following the end of the Civil War and ing at the White House in return for poundment Control Act. Let’s take a during reconstruction, was not about a Ukraine publicly announcing an inves- look at that last one for a moment, violation of the Tenure of Office Act, tigation of the Bidens. shall we. The U.S. Government Ac- which, after all, was the violation of In the House Judiciary report, it countability Office, an arm of the U.S. law charged as the principle Article of states as follows: ‘‘It is beyond ques- Congress, in its infinite wisdom, has Impeachment but, instead, rested on tion that official White House visits decided, contrary to the position of the his use of power with illegitimate mo- constitute a ‘formal exercise of govern- executive branch Office of Management tives. mental power’ within the meaning of and Budget, OMB, that while the Presi- In an ahistorical sleight of hand wor- McDonnell.’’ dent may temporarily withhold funds thy only of the New York Times recent Not so fast. Actually, the Supreme from obligation—but not beyond the ‘‘1619’’ series—a series, by the way, Court in McDonnell helpfully boiled it end of the fiscal year—he may not do roundly criticized by two of my Prince- down to only those acts that constitute so with vague or general assertions of ton Civil War and reconstruction his- the formal exercise of government policy priorities contrary to the will of tory professors as inaccurate—House power and that are more specific and Congress. managers now claim that President focused than a broad policy objective. The President’s response to this Johnson’s removal of Lincoln’s Sec- An exchange resulting in meetings, interbranch dispute between Congress retary of War Edwin Stanton without events, phone calls, as those terms are and the executive branch was to assert Congress’s permission in violation of a typically understood as being routine, his authority over foreign policy to de- congressional statute, later found to be according to the Supreme Court’s defi- termine the timing of the best use of unconstitutional, is best understood nition of an official act, do not count. funds. Ultimately, this is a dispute with the benefit of revisionist hind- The fact that the meeting involved that has constitutional implications sight to be motivated not by his desire was a formal one, with all of the under separation of power principles, to violate the statute but on his illegit- trappings of a state visit by the Presi- about which this body is well familiar. imate use of power to undermine recon- dent of Ukraine and hosted by the It pits the President’s constitutional struction and subordinate African President of the United States, makes prerogatives to control foreign policy Americans following the Civil War. no difference. The Supreme Court is against Congress’s reasonable expecta- That all may be true, but it is an- talking about an official act as a for- tion that the President will comply other thing altogether to claim that mal exercise of decision-making power, with the Constitution’s faithful execu- that motive actually was the basis of not the formality of the visit. Even if tion of the law requirement of his oath Johnson’s impeachment. Professor the allegation were true, this could not of office. Laurence Tribe, who was the source for constitute a quid pro quo. This issue has come up before with this misguided reinterpretation of the I should know. I argued, in effect, the other Presidents. There is a huge con- Johnson impeachment, simply sub- contrary proposition in United States stitutional debate among legal scholars stitutes his own self-described, far

VerDate Sep 11 2014 02:40 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00029 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.044 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE S608 CONGRESSIONAL RECORD — SENATE January 27, 2020 more compelling basis for Johnson’s re- more. To ignore the requirement of other words, a defendant’s Sixth moval from office from the one that proving that a crime was committed is Amendment right to a fair trial in col- the House of Representatives actually to sidestep the constitutional design as lateral proceedings was what the court voted on and the Senate considered at well as the lessons of history. actually found dispositive in rejecting his impeachment trial. I know that many of you may come the President’s claim of privilege to There has been an awful lot of that to conclude, or may have already con- prevent Congress from gaining access going on in this impeachment—people cluded, that the call was less than per- to the Watergate tapes. substituting their own interpretations fect. I have said on any number of oc- All subsequent administrations have for the ones that the principles actu- casions previously—and publicly—that defended that narrow exception against ally and explicitly insist on. it would have been better, in attempt- any general claim of access to execu- At any rate, a President’s so-called ing to spur action by a foreign govern- tive branch confidential communica- illegitimate motives in wielding power ment in coordinating law enforcement tions, documents, and witnesses who can no more frame and legitimize the efforts with our government, to have are the President’s closest advisers. Johnson impeachment than recasting done so through proper channels. While Thus, it should be a matter of accept- the Nixon impeachment as really about the President certainly enjoys the ed wisdom and historical premise that his motives in defying Congress over power to do otherwise, there is con- a President cannot be removed from of- the country’s foreign policy in Viet- sequence to that action, as we have fice for invoking established legal nam. Again, all of that may be true, now witnessed. After all, that is why rights, defenses, privileges, and immu- but it has nothing to do with impeach- we are all here. nities, even in the face of subpoenas ment. Not only that, it is also bad his- But it is another thing altogether to from House committees. Back in 1998, tory. claim that such conduct is clearly and Professor Tribe called out any argu- As recognized 65 years ago by then- unmistakably impeachable as an abuse ment to the contrary as frivolous and Senator John F. Kennedy in his book of power. There can be no serious ques- dangerous. ‘‘Profiles in Courage,’’ President John- tion that this President, or any Presi- House managers respond now by ar- son was saved from removal from office dent, acts lawfully in requesting for- guing, nonetheless, that the President has no right to defy a legitimate sub- by one vote and thus by one courageous eign assistance with investigations poena, particularly, I suppose, when Senator who recognized the legislative into possible corruption, even when it their impeachment efforts are at stake. overreach that the Tenure of Office Act might potentially involve another poli- And thus, it is an issue rising to the represented. tician. level of an interbranch conflict that in Quoting now from Senator Edmund To argue otherwise would be to en- our system of government only accom- G. Ross in ‘‘Profiles in Courage,’’ who gage in the specious contention that a modation between the branches and, explained his vote as follows: Presidential candidate or, for that matter, any candidate enjoys absolute ultimately, courts can finally resolve. The independence of the executive office as The House chose to forgo that course immunity from investigations during a coordinate branch of the government was and to plow forward with impeach- on trial. . . . If . . . the President must step the course of a campaign. ment. House managers cannot be heard down . . . upon insufficient proofs and from I can tell you that is not the case to complain now that their own stra- partisan considerations, the office of Presi- from my own experience. I did so dur- tegic choice can form any basis to dent would be degraded. ing 2000 in investigating Hillary Clin- place blame on the President for it and, So, too, here. Contrary, apparently ton while she was running for office to worse yet, to then impeach him on that to the fashion now, Senator Ross’s ac- become a U.S. Senator from New York, basis and seek his removal from office. tion eventually was praised and accept- to which she was elected. ed several decades after his service and My point simply is this: This Presi- That is no basis at all, as Professor Jonathan Turley persuasively has ex- again many years later by President dent has been impeached and stands on plained. Kennedy as a courageous stand against trial here in the Senate for allegedly Compliance with a legitimate sub- legislative mob rule. Professor doing something indirectly about poena is enforced over a claim of exec- Dershowitz will have more to say about which he was entirely permitted to do utive privilege or Presidential immu- one other courageous Senator from directly. That cannot form a basis as nity only when a court with jurisdic- that impeachment. More on that later. an abuse of power article sufficient to tion says so in a final decision. For now, the point is that our history warrant his removal from office. In sum, calling a subpoena legiti- demonstrates that Presidents should Turning now to the second Article of mate, as House managers have done not be subject to impeachment based Impeachment, as we argued in our here, does not make it so. An analogy upon bad or ill motives, and any written trial brief, at the outset, it taken from baseball, which I believe thought to the contrary should strike must be noted that it is at least a little the Chief Justice might appreciate, you, I submit, as exceedingly dan- odd for House managers to be arguing makes the point: A longtime major gerous to our constitutional structure that President Trump somehow ob- league umpire named Bill Klem, who of government. structed Congress when he declassified worked until 1941 after 37 years in the If that were the standard, what Presi- and released what is the central piece big leagues, was once asked during a dent would ever be safe by way of im- of evidence in this case. And that is, of game by a player whether a ball was peachment from what Hamilton de- course, the transcript of the July 25 fair or foul. The umpire replied: It ain’t cried as the ‘‘persecution of an intem- call, as well as the call with President nothing until I call it. perate or designing majority in the Zelensky that preceded it on April 21, I say the same thing to Chairman House of Representatives’’? 2019. SCHIFF now. It’s not a legitimate and, The central import of the abuse of Release of that full call record should therefore, enforceable subpoena until a power Article of Impeachment—indeed, have been the end of this claim of ob- court says that it is. when added together with the obstruc- struction, but apparently not. Instead, Preceding the Clinton impeachment tion of justice article—is a result not again, relying on the United States v. and, indeed, in response to demands far off from what one citizen tweet I Nixon, House managers have proffered not just from the Whitewater inde- saw back in December described as ar- a broad claim to documents and wit- pendent counsel but also from several ticle I, Democrats don’t like President nesses in an impeachment inquiry, not- other of the independent counsel inves- Trump; article II, Democrats can’t beat withstanding the Nixon court’s limited tigations that were ongoing at that President Trump. holding that an objection by the Presi- time—and, again, I know, I was in one President Trump is not removable dent based on executive privilege could of them—the White House repeatedly from office just because a designing only be overcome in the limited cir- asserted claims of executive privilege. majority in the House, as represented cumstances presented there where the Many of those claims were litigated for by their managers, believes that the information sought was also material months, not weeks, and in some cases President abused the power of his office to the preparation of the defense by his for years. during the July 25 call with President coconspirators in pending cases await- When I hear Mr. SCHIFF’s complaint Zelensky. The Constitution requires ing trial following indictments. In that the House’s request for former

VerDate Sep 11 2014 02:40 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00030 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.046 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE January 27, 2020 CONGRESSIONAL RECORD — SENATE S609 White House Counsel Don McGahn’s Democrats is not, I submit, in the best stand before you today to present a testimony, grand jury material, and interest of this country because in the constitutional argument against the other documents has been drawn out final analysis, we will all be judged in impeachment and removal not only of since April of last year, I can only say the eyes of history on whether, in this this President but of all and any future in response: Boohoo. moment, we act with the country’s Presidents who may be charged with Did I think at the time that many of overriding welfare firmly in mind rath- the unconstitutional grounds of abuse those claims of privilege were frivolous er than in advancing the cause of par- of power and obstruction of Congress. and an abuse of the judicial process? Of tisan political advantage. I stand before you today as I stood in course. And, indeed, that was the de- I have always believed as an article 1973 and 1974 for the protection of the termination of the House Judiciary of faith that in good times and in hard constitutional and procedural rights of Committee during the Clinton im- times and even in bad times, with mat- Richard Nixon, whom I personally ab- peachment. What did they do about it? ters of importance at stake, that this horred, and whose impeachment I per- Nothing. The committee properly con- country gets the big things right. I sonally favored; and as I stood for the cluded then that those assertions of have seen that in my own life and for rights of President Clinton, whom I ad- privilege, even if ill-founded, did not my own experience, even in Wash- mired and whose impeachment I constitute an impeachable offense. Did ington, DC. strongly opposed. I stand against the I believe that the Clinton administra- Well, Members of the Senate, this, application and misapplication of the tion’s actions in this regard have ad- what lies before you now, is just such a constitutional criteria in every case versely impacted our investigation? big thing. The next election awaits. and against any President without re- You bet I did. And I said so in the final Election day is only 9 months away. gard to whether I support his or her report. But never did I seriously con- As Senator Dale Bumpers eloquently parties or policies. I would be making sider that those efforts by the White concluded in arguing against President the very same constitutional argument House, although endlessly frustrating Clinton’s removal from office: had Hillary Clinton, for whom I voted, and damaging to the independent coun- That is the day when we reach across this been elected and had a Republican sel’s investigation, would constitute aisle and hold hands, Democrats and Repub- House voted to impeach her on these the crime of obstruction of justice or licans, and we say, win or lose, we will abide unconstitutional grounds. any related impeachable offense for ob- by the decision. It is a solemn event, a Presi- I am here today because I love my struction of Congress. Instead, I and dential election, and it should not be undone country and our Constitution. Every- my colleagues did the best that we lightly or just because one side has political one in this room shares that love. I will clout and the other one doesn’t. could in reaching an accommodation argue that our Constitution and its with the White House where possible or Otherwise, as Abraham Lincoln terms, high crimes and misdemeanors, through litigation, when necessary, in warned us during his first inaugural do not encompass the two articles order to complete the task at hand, to address: charging abuse of power and obstruc- the best of our ability to do so. If the minority will not acquiesce . . . the tion of Congress. In offering these ar- Any contention that what has tran- government must cease. guments, I stand in the footsteps and spired here involving this administra- So that rejecting the majority principle, in the spirit of Justice Benjamin Cur- anarchy . . . in some form, is all that is left. tion’s assertion of valid and well-recog- tis, who was of counsel to impeached nized claims of privileges and immuni- This impeachment and the refusal to President Andrew Johnson and who ex- ties is somehow contrary to law and accept the results of the last election plained to the Senate that ‘‘a greater impeachable is ludicrous. In short, to in 2016 cannot be left to stand. For the principle was at stake than the fate of add to the parade of criminal offenses reasons stated, the Articles of Im- any particular president’’ and of Wil- not sustained on this impeachment, peachment, therefore, should be re- liam Evarts, a former Secretary of there was no obstruction of justice or jected, and the President must be ac- State, another one of Andrew John- of Congress, period. quitted. son’s lawyers, who reportedly said that The President cannot be impeached Members of the Senate, thank you he had come to the defense table not as and removed from office for asserting, very much. a ‘‘partisan,’’ not as a ‘‘sympathizer,’’ subject to judicial review, what he has With that, Mr. Chief Justice, I yield but to ‘‘defend the Constitution.’’ every right to assert. That is true now, back to Mr. Sekulow. The Constitution, of course, provides as it has been true of every President Thank you. that the Senate has the sole role and all the way back to President George Mr. Counsel SEKULOW. Mr. Chief power to try all impeachments. In ex- Washington. Justice, we are going to now delve into ercising that power, the Senate must In short, as to both Articles of Im- the constitutional issues for a bit and consider three issues in this case. peachment, all the President is asking our presenter is Professor Alan The first is whether the evidence pre- for here is basic fairness and to be held Dershowitz. He is the Felix Frank- sented by the House managers estab- to the very same standard that both furter Professor Emeritus of Harvard lishes, by the appropriate standard of House Speaker NANCY PELOSI proffered Law School. After serving as a law proof—proof beyond a reasonable in March 2019 and which previously was clerk for Judge David Bazelon of the doubt—that the factual allegations oc- endorsed during the Clinton impeach- U.S. Court of Appeals for the District curred. ment in strikingly similar language by of Columbia, he served as a law clerk The second is whether, if these fac- House manager JERRY NADLER 20-odd for Justice Arthur Goldberg at the U.S. tual allegations occurred, did they rise years ago in 1998. The evidence must be Supreme Court. At the age of 28, Pro- to the level of abuse of power and/or nothing less than ‘‘compelling, over- fessor Dershowitz became the youngest obstruction of Congress? whelming, and bipartisan.’’ We agree. tenured professor at Harvard Law Finally, the Senate must determine No amount of witness testimony, docu- School. Mr. Dershowitz spent 50 years whether abuse of power and obstruc- ments, high-fives, fist-bumps, signing as an active faculty member at Har- tion of Congress are constitutionally pens, or otherwise are ever going to be vard, teaching generations of law stu- authorized criteria for impeachment. sufficient to sustain this impeachment dents, including several Members of The first issue is largely factual and under the Democrats’ own standard. this Chamber, in classes ranging from I leave that to others. The second is a With that, I am ready to conclude. criminal law to constitutional law, combination of traditional and con- The President’s only instruction to me criminal procedure, constitutional liti- stitutional law, and I will touch on for this trial was a simple one: Do what gation, legal ethics, and even courses those. The third is a matter of pure you think is right. on impeachment. He will address the constitutional law. Do charges of abuse As a country, we need to put a stop constitutional issues raised by these and obstruction rise to the level of im- to doing anything and everything that articles. peachable offenses under the Constitu- we can do and start doing what is right Mr. Counsel DERSHOWITZ. Mr. Chief tion? and what needs to be done in the Na- Justice, distinguished Members of the I will begin, as all constitutional tion’s best interests. A brazenly par- Senate, our friends, lawyers, fellow analysis begins, with the text of the tisan, political impeachment by House lawyers, it is a great honor for me to Constitution governing impeachment. I

VerDate Sep 11 2014 02:40 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00031 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.047 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE S610 CONGRESSIONAL RECORD — SENATE January 27, 2020 will then examine why the Framers se- You will recall in the many Articles jury.’’ This demonstrated, according to lected the words they did as the sole of Impeachment against President Curtis, that impeachment requires a criteria authorizing impeachment. In Johnson were accusations of non- crime, but unlike other crimes, it does making my presentation, I will trans- criminal but outrageous misbehavior, not require a jury trial. You are the port you back to a hot summer in including ones akin to abuse of power judge and the jury. He also pointed out Philadelphia and a cold winter in and obstruction of Congress. For exam- that an impeachment trial, by the ‘‘ex- Washington. I will introduce you to pa- ple, article X charged Johnson ‘‘did at- press words’’ of the Constitution, re- triots and ideas that helped shape our tempt to bring into disgrace, ridicule, quires an ‘‘acquittal’’ or a ‘‘convic- great Nation. hatred, contempt and reproach, the tion,’’ judgments generally rendered To prepare for this journey, I have Congress of the United States.’’ only in the trials of crimes. immersed myself in a lot of dusty old Article XI charged Johnson with de- Now, President Johnson’s lawyers, of volumes from the 18th and 19th cen- nying that Congress was [a]uthorized course, argued in the alternative, as all tury. I ask your indulgence as I quote by the Constitution to exercise the leg- lawyers do when there are questions of from the wisdom of our Founders. This islative power’’ and denying that ‘‘[t]he fact and law. He argued that Johnson return to the days of yesteryear is nec- legislation of said Congress was obliga- did not violate the Articles of Impeach- essary because the issue today is not tory upon him.’’ Those are pretty seri- ment, as you heard from other lawyers what the criteria of impeachment ous charges. today but, even if he did, that the arti- should be, not what a legislative body Here is how Justice Curtis responded cles do not charge impeachable of- or a constitutional body might today to these noncriminal charges: fenses, which is the argument that I decide are the proper criteria for im- My first position is, that when the Con- am making before you this evening. peachment of a President but what the stitution speaks of treason, bribery, and Justice Curtis’s first position, how- Framers of our Constitution actually other crimes and misdemeanors, it refers to, ever, was that the articles did not chose and what they expressly and im- and includes only, high criminal offenses charge an impeachable offense because against the United States, made so by some plicitly rejected. they did not allege ‘‘high criminal of- I will ask whether the Framers would law of the United States existing when the fenses against the United States.’’ have accepted such vague and open- acts complained of were done, and I say that According to Harvard historian and ended terms as ‘‘abuse of power’’ and this is plainly to be inferred from each and law professor Nikolas Bowie, Curtis’s ‘‘obstruction of Congress’’ as governing every provision of the Constitution on the subject of impeachment. constitutional arguments were persua- criteria. I will show by close review of sive to at least some Senators who the history that they did not and would I will briefly review those other pro- were no friends of President Johnson’s, not accept such criteria for fear that visions of the Constitution with you. including the coauthors of the 13th and these criteria would turn our new Re- Judge Curtis’s interpretation is sup- the 14th Amendments. As Senator Wil- public into a British-style parliamen- ported—indeed, in his view it was com- liam Pitt Fessenden later put it, tary democracy in which the Chief Ex- pelled—by the constitutional text. ‘‘Judge Curtis gave us the law, and we ecutive’s tenure would be, in the words Treason, bribery, and other high of James Madison, father of our Con- crimes and misdemeanors are high followed it.’’ Senator James W. Grimes echoed stitution, ‘‘at the pleasure’’ of the leg- crimes. Other high crimes and mis- Curtis’s argument by refusing to ‘‘ac- islature. demeanors must be akin to treason and The conclusion I will offer for your bribery. Curtis cited the Latin phrase cept an interpretation’’ of high crimes consideration is similar, though not ‘‘Noscitur a sociis,’’—I am sorry for my and misdemeanors that changes ‘‘ac- identical, to that advocated by highly pronunciation—referring to a classic cording to the law of each Senator’s respected Justice Benjamin Curtis, who rule of interpretation that when the judgment, enacted in his own bosom as you know, dissented from the Su- meaning of a word that is part of a after the alleged commission of the of- preme Court’s notorious decision in group of words is uncertain, you should fense.’’ Though he desperately wanted Dred Scott, and who, after resigning in look to the other words in that group to see President Johnson, whom he de- protest from the High Court, served as that provide interpretive context. spised, out of office, he believed that an counsel to President Andrew Johnson The late Justice Antonin Scalia gave impeachment removal without the vio- in the Senate impeachment trial. He the following current example. If one lation of law would be ‘‘construed into argued that ‘‘there can be no crime, speaks of Mickey Mantle, Rocky approval of impeachments as part of there can be no misdemeanor without a Marciano, Michael Jordan, and other future political machinery.’’ law, written or unwritten, express or great competitors, the last noun does According to Professor Bowie, Jus- implied.’’ not reasonably refer to Sam Walton, tice Curtis’s constitutional arguments In so arguing, he was echoing the who is a great competitor, but in busi- may well have contributed to the deci- conclusion reached by Dean Theodore ness, or Napoleon, a great competitor sion by at least some of the seven Re- Dwight of the Columbia Law School, on the battlefield. Applying that rule publican dissidents to defy their party who wrote in 1867, just before the im- to the groups of words ‘‘treason, brib- and vote for acquittal, which was se- peachment, that ‘‘unless the crime is ery, or other high crimes and mis- cured by a single vote. specifically named in the Constitu- demeanors,’’ the last five words should Today, Professor Bowie has an arti- tion’’—treason and bribery—‘‘impeach- be interpreted to include only serious cle in the New York Times in which he ments, like indictments, can only be criminal behavior akin to treason and repeats his view of ‘‘impeachment re- instituted for crimes committed bribery. quires a crime,’’ but he now argues against the statutory law of the United Justice Curtis then reviewed the that the Articles of Impeachment do States.’’ As Judge Starr said earlier other provisions of the Constitution charge crimes. He is simply wrong. He today, he described that as the weight that relate to impeachment. First, he is wrong because, in the United States of authority being on the side of that started with the provision that says v. Hudson—a case decided almost more proposition at a time much closer to ‘‘the President of the United States than 200 years ago now—the U.S. Su- the framing than we are today. shall have Power to grant Reprieves preme Court ruled that Federal courts The main thrust of my argument, and Pardons’’—listen now—‘‘for Of- have no jurisdiction to create common however, and the one most relevant to fenses against the United States, ex- law crimes. Crimes are only what are these proceedings is that even if that cept in Cases of Impeachment.’’ in the statute book. position is not accepted, even if crimi- He cogently argued that if impeach- So Professor Bowie is right that the nal conduct were not required, the ment were not for ‘‘offenses against the Constitution requires a crime for im- Framers of our Constitution implicitly United States’’—was not based on an peachment but wrong when he says rejected—and, if it had been presented offense against the United States— that common law crimes can be used as to them, would have explicitly re- there would have been no need for any a basis for impeaching even though jected—such vague terms as ‘‘abuse of constitutional exception. they don’t appear in the statute books. power’’ and ‘‘obstruction of Congress’’ He then went on to a second provi- Now, I am not here arguing that the as among the enumerated and defined sion: ‘‘The trial of all crimes, except in current distinguished Members of the criteria for impeaching a President. cases of impeachment, shall be by Senate are in any way bound—legally

VerDate Sep 11 2014 02:40 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00032 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.049 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE January 27, 2020 CONGRESSIONAL RECORD — SENATE S611 bound—by Justice Curtis’s arguments fenses because these crimes, though This is precisely the kind of view ex- or those of Dean Dwight, but I am ar- not specified in the Constitution, are pressly rejected by the Framers, who guing that you should give them seri- akin to treason and bribery. This feared having a President serve at the ous consideration—the consideration would be true even if some of the tech- ‘‘pleasure’’ of the legislature, and it is to which they are entitled by the emi- nical elements—time and place—were precisely the view rejected by Senator nence of their author and the role they absent. James Grimes when he refused to ac- may have played in the outcome of the What Curtis and Dwight and I agree cept an interpretation of high crimes closest precedent to the current case. upon—and this is the key point in this and misdemeanors that would change I want to be clear. There is a nuanced impeachment case; please understand ‘‘according to the law of each Senator’s difference between the arguments what I am arguing—is that purely non- judgment, enacted in his own bosom.’’ made by Curtis and Dwight and the ar- criminal conduct, including abuse of The Constitution requires, in the gument that I am presenting here power and obstruction of Congress, are words of Gouverneur Morris, that the today based on my reading of history. outside the range of impeachable of- criteria for impeachment must be Curtis argued that there must be a fenses. That is the key argument I am ‘‘enumerated and defined.’’ Those who specific violation of preexisting law. He presenting today. advocate impeachment today are recognized that, at the time of the Con- This view was supported by text writ- obliged to demonstrate how the cri- stitution, there were no Federal crimi- ers and judges close in time to the teria accepted by the House in this nal statutes. Of course not. The Con- founding. William Oldhall Russell, case are enumerated and defined in the stitution established a national gov- whose 1819 treatise on criminal law was Constitution. ernment, so we couldn’t have statutes a Bible among criminal law scholars The compelling textual analysis pro- prior to the establishment of our Con- and others, defined ‘‘high crimes and vided by Justice Curtis is confirmed by stitution and our Nation. misdemeanors’’ as ‘‘such immoral and the debate in the Constitutional Con- This argument is offered today by unlawful acts as are nearly allied, and vention, by the Federalist Papers, by proponents of this impeachment on the equal in guilt, to a felony; and yet, the writings of William Blackstone, claim that the Framers could not have owing to the absence of some technical and, I believe, by the writings of Alex- intended to limit the criteria for im- circumstances’’—technical cir- ander Hamilton, which were heavily re- peachment to criminal-like behavior. cumstances—‘‘do not fall within the lied on by lawyers at the time of the Justice Curtis addressed that issue and definition of a felony.’’ Similar views Constitution’s adoption. that argument head-on. were expressed by some State courts. There were at the time of the Con- He pointed out that crimes such as Others disagreed. stitution’s adoption two great debates bribery would be made criminal ‘‘by Curtis’s considered views and those that went on, and it is very important the laws of the United States, which of Dwight, Russell, and others, based to understand the distinction between the Framers of the Constitution knew on careful study of the text and his- these two great debates. It is hard to would be passed.’’ In other words, he tory, are not ‘‘bonkers,’’ ‘‘absurdist,’’ imagine today, but the first was, anticipated that Congress would soon ‘‘legal claptrap,’’ or other demeaning Should there be any power to impeach enact statutes punishing and defining epithets thrown around by partisan a President at all? There were several supporters of this impeachment. As crimes such as burglary, extortion, per- members of the founding generation Judge Starr pointed out, they have the jury, et cetera. He anticipated that, and of the Framers of the Constitution weight of authority. They were accept- and he based his argument, in part, on who said no—who said, no, a President ed by the generation of the Founders that. shouldn’t be allowed to be impeached. and the generations that followed. If The Constitution already included The second—and the second is very, they are not accepted by academics treason as a crime, and that was de- very important in our consideration today, that shows a weakness among fined in the Constitution itself, and today—is, If a President is to be sub- the academics, not among the Found- ject to impeachment, what should the then it included other crimes; but what ers. Those who disagree with Curtis’s criteria be? These are very different Justice Curtis said is that you could textual analysis are obliged, I believe, issues, and they are often erroneously include laws, ‘‘written or unwritten, to respond with reason, counter inter- conflated. express or implied’’—by which he pretations, not name-calling. Let’s begin with the first debate. meant common law, which, at the time If Justice Curtis’s arguments and During the broad debate about of the Constitution, there were many those of Dean Dwight are rejected, I whether a President should be subject common law crimes—and they were en- think then proponents of impeachment to impeachment, proponents of im- forceable, even federally, until the Su- must offer alternative principles and peachment used vague and open-ended preme Court, many years later, decided alternative standards for impeachment terms, such as ‘‘unfit,’’ ‘‘obnoxious,’’ that common law crimes were no and removal. ‘‘corrupt,’’ ‘‘misconduct,’’ ‘‘mis- longer part of Federal jurisdiction. We just heard that, in 1970, Congress- behavior,’’ ‘‘negligence,’’ ‘‘mal- So the position that I have derived man Gerald Ford, whom I greatly ad- practice,’’ ‘‘perfidy,’’ ‘‘treachery,’’ ‘‘in- from history would include—and this is mired, said the following in the context capacity,’’ ‘‘peculation,’’ and ‘‘mal- a word that will upset some people— of an impeachment of justice: ‘‘[A]n administration.’’ They worried that a criminal-like conduct akin to treason impeachable offense is whatever a ma- President might ‘‘pervert his adminis- and bribery. There need not be, in my jority of the House of Representatives tration into a scheme of speculation view, conclusive evidence of a tech- considers it to be at a given moment in and oppression’’; that he might be nical crime that would necessarily re- history,’’ et cetera. You all know the ‘‘corrupted by foreign influence’’; and— sult in a criminal conviction. Let me quote. yes, this is important—that he might explain. Congresswoman MAXINE WATERS re- have ‘‘great opportunities of abusing For example, if a President were to cently put it more succinctly in the his power.’’ receive or give a bribe outside of the context of a Presidential impeachment. Those were the concerns that led the United States and outside of the stat- Here is what she said: Framers to decide that a President ute of limitations, he could not tech- Impeachment is whatever Congress says it must be subject to impeachment, but nically be prosecuted in the United is. There is no law. not a single one of the Framers sug- States for such a crime, but I believe But this lawless view would place gested that these general fears justi- he could be impeached for such a crime Congress above the law. It would place fying the need for an impeachment and because he committed the crime of Congress above the Constitution. For removal mechanism should automati- bribery even though he couldn’t tech- Congress to ignore the specific words of cally be accepted as a specific criterion nically be accused of it in the United the Constitution itself and substitute for impeachment. Far from it. States. That is the distinction that I its own judgments would be for Con- As Gouverneur Morris aptly put it: think we draw. Or if a President com- gress to do what it is accusing the ‘‘[C]orruption and some other offenses mitted extortion, perjury, or obstruc- President of doing—and no one is above . . . ought to be impeachable, but . . . tion of justice, he could be charged the law, not the President and not Con- the cases ought to be enumerated and with these crimes as impeachable of- gress. defined.’’

VerDate Sep 11 2014 02:40 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00033 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.057 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE S612 CONGRESSIONAL RECORD — SENATE January 27, 2020 The great fallacy of many contem- move the President, the Framers set A constitutional amendment with porary scholars and pundits and, with out to strike the appropriate balance carefully drawn procedural safeguards due respect, Members of the House of between the broad concerns that led against abuse was required to remedy Representatives is that they fail to un- them to vote for a provision author- the daunting problem of a President derstand the critical distinction be- izing the impeachment of the President who was deemed incapacitated. tween the broad reasons for needing an and the need for specific criteria not Now, another reason why incapacita- impeachment mechanism and the care- subject to legislative abuse or overuse. tion was not included among impeach- fully enumerated and defined criteria Among the criteria proposed were: able offenses is because it is not crimi- that should authorize the deployment malpractice, neglect of duty, nal. It is not a crime to be incapaci- of this powerful weapon. malconduct, neglect in the execution tated. It is not akin to treason. It is Let me give you a hypothetical ex- of office, and—and this word we will not akin to bribery, and it is not a high ample that might have faced Congress come back to talk about—maladmin- crime and misdemeanor. or, certainly, will face Congress. istration. The Framers believed that impeach- Let’s assume that there is a debate It was in response to that last term, able offenses must be criminal in na- over regulating the content of social a term used in Britain, as a criteria for ture and akin to the most serious media—whether we should have regula- impeachment that Madison responded: crimes. Incapacity simply did not fit tions or criminal, civil regulations ‘‘So vague a term will be equivalent to into this category. Nothing criminal over Twitter or Facebook, et cetera. In a tenure during the pleasure of the about it. the debate over regulating the social Senate.’’ So the Constitution had to be amend- media, proponents of regulation might Upon hearing Madison’s objections ed to include a different category of well cite broad dangers, such as false Colonel Mason withdrew ‘‘maladmin- noncriminal behavior that warranted information, inappropriate content, istration’’ and substituted ‘‘other high removal. I urge you to consider seriously that hate speech. Those are good reasons for crimes and misdemeanors.’’ Had a delegate proposed inclusion of important part of the history of the having regulation; but when it came to ‘‘abuse of power’’ or ‘‘obstruction of adoption of our Constitution. enumerating and defining what should Congress’’ as enumerated and defined I think that Blackstone and Ham- be prohibited, such broad dangers criteria for impeachment, history ilton also support this view. would have to be balanced against strongly suggests that Madison would There is no disagreement over the other important policies, and the re- have similarly opposed it, and it would conclusion that the words ‘‘treason, sulting legislation would be much nar- have been rejected. bribery, or other high crimes’’—those rower and more carefully defined than I will come back to that argument a words require criminal behavior. The the broad dangers that necessitated little later on when I talk specifically debate is only over the words ‘‘and mis- some regulation. about abuse of power. demeanors.’’ The Framers of the Con- The Framers understood and acted Indeed, Madison worried that a par- stitution were fully cognizant of the on this difference, but I am afraid that tisan legislature could even misuse the fact that the word ‘‘misdemeanor’’ was many scholars and others and Members word ‘‘misdemeanor’’ to include a a species of crime. of Congress fail to see this distinction, broad array of noncrimes, so he pro- The book that was most often and they cite some of the fears that led posed moving the trial to the non- deemed authoritative was written by to the need for an impeachment mech- partisan Supreme Court. The proposal William Blackstone of Great Britain, anism. They cite them as the criteria was rejected. and here is what he says about this in themselves. That is a deep fallacy, and Now, this does not mean, as some the version that was available to the it is crucially important that the dis- have suggested, that Madison suddenly Framers: tinction be sharply drawn between ar- changed his mind and favored such A crime, or misdemeanor, is an act com- guments made in favor of impeaching misuse to expand the meaning of ‘‘mis- mitted or omitted, in violation of the [pub- and the criteria then decided upon to demeanor’’ to include broad terms like lic] law, either forbidding or commanding it. justify the impeachment specifically of ‘‘misbehavior.’’ No, it only meant that The general definition comprehends both the President. he feared—he feared that the word crimes and misdemeanors; which, properly speaking, are mere synonymous terms. The Framers understood this, and so ‘‘misdemeanor’’ could be abused. His they got down to the difficult business fear has been proved prescient by the Mere synonymous terms. He went of enumerating and defining precisely misuse of that term, ‘‘high crimes and then on: which offenses, among the many that misdemeanors,’’ by the House, in this [T]hough, in common usage, the word they feared a President might commit, ‘‘crimes’’ is made to denote such offenses are case. of a deeper and more atrocious dye; while should be impeachable as distinguished Now, the best evidence that the smaller faults, and omissions of less con- by those left to the voters to evaluate. broad concerns cited by the Framers to sequence, are comprised under the gentler Some Framers, such as Roger Sher- justify impeachment were not auto- name of ‘‘misdemeanors’’ only. man, wanted the President to be re- matically accepted as criteria justi- Interestingly, though, he pointed out movable by ‘‘the National legislature’’ fying impeachment is the manner by that misdemeanors were not always so at its ‘‘pleasure,’’ much like the Prime which the word ‘‘incapacity’’—focus on gentle. Minister can be removed by a simple that word, please—incapacity was There was a category called ‘‘capital vote of no confidence by Parliament. treated. misdemeanors,’’ where if you stole That view was rejected. Madison and others focused heavily somebody’s pig or other fowl, you could Benjamin Franklin opposed decidedly on the problem of what happens if a be sentenced to death, but it was only the making of the Executive ‘‘the mere President becomes incapacitated. Cer- for a misdemeanor. Don’t worry. It is creature of the legislature.’’ tainly, a President who is incapaci- not for a felony. But there were mis- Gouverneur Morris was against ‘‘a tated should not be allowed to continue demeanors that were capital in nature. dependence of the Executive on the to preside over this great country. And Moreover, Blackstone wrote that par- Legislature, considering the Legisla- everyone seemed to agree that the pos- liamentary impeachment ‘‘is a pros- ture’’—you will pardon me for quoting sibility of Presidential incapacity is a ecution’’—a prosecution—‘‘of already this—‘‘a great danger to be appre- good and powerful reason for having known and established law [presented] hended . . . ‘’ impeachment provisions. to the most high and Supreme Court of I don’t agree with that. But when it came time to estab- criminal jurisdiction’’—analogous to James Madison expressed concern lishing criteria for actually removing a this great court. about the President being improperly President, ‘‘incapacity’’ was not in- He observed that ‘‘[a] commoner [can dependent on the legislature. Others cluded. Why not? Presumably because be impeached] but only for high mis- worried about a feeble executive. it was too vague and subjective a term. demeanors: a peer may be impeached Hearing these and other arguments And when we had the incapacitated for any crime’’—any crime. against turning the new Republic into President in the end of the Woodrow This certainly suggests that Black- a parliamentary democracy, in which Wilson second term, he was not im- stone deemed high misdemeanors to be the legislature had the power to re- peached and removed. a species of crime.

VerDate Sep 11 2014 02:40 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00034 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.058 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE January 27, 2020 CONGRESSIONAL RECORD — SENATE S613 Hamilton is a little less clear on this misconduct, abuse, or violation. If any- relied upon by many of our own Jus- issue, and not surprisingly because he thing, he was contracting them to re- tices and judges over the years. It was was writing—in Federalist No. 65, he quire, in addition to proof of the speci- well known to the legal members of the was writing not to define what the cri- fied crimes, also proof that the crime founding generations. teria for impeachment were, he was must be of a political nature. It required that in construing a writing primarily in defense of the This would exclude President Clin- criminal statute that is capable of Constitution as written and less to de- ton’s private, nonpolitical crimes. In more than one reasonable interpreta- fine its provisions, but he certainly fact, and this is interesting, Hamilton’s tion, the interpretation that favors the cannot be cited as in favor of criteria view was cited by Clinton’s advocates defendant should be selected unless it such as abuse of power or obstruction as contracting, not expanding, the conflicts with the intent of the statute. of Congress, nor of impeachment voted meaning of ‘‘high crimes.’’ It has been applied by Chief Justice along party lines. Today, some of these same advocates, Marshall, Justice Oliver Wendell He warned that the ‘‘greatest dan- you look at the same words and cite Holmes, Felix Frankfurter, Justice ger’’—these were his words—‘‘the them as expanding its meaning. Antonin Scalia and others. greatest danger [is] that the decision Clinton was accused of a crime—per- Now, applying that rule to the inter- will be regulated more by the compara- jury—and so the issue in his case was pretation of ‘‘high crimes and mis- tive strength of parties, than by the not whether the Constitution required demeanors’’ would require that these real demonstrations of innocence or a crime for impeachment. Instead, the words be construed narrowly to require guilt.’’ issue was whether Clinton’s alleged criminal-like conduct akin to treason In addition to using the criminal crime could be classified as a ‘‘high and bribery rather than broadly to en- terms ‘‘innocence’’ or ‘‘guilt,’’ Ham- crime’’ in light of the personal nature. compass abuse of power and obstruc- ilton also referred to ‘‘prosecution’’ During the Clinton impeachment, I tion of Congress. and ‘‘sentence.’’ He cited the constitu- stated in an interview that I did not In other words, if Senators are in tional provisions that states that ‘‘the think that a technical crime was re- doubt about the meaning of ‘‘high party convicted shall nevertheless be quired but that I did think that abus- crimes and misdemeanors,’’ the rule of libel and subject’’ to a criminal trial, ing trust could be considered. I said lenity should incline them toward ac- as a reason for not having the Presi- that. cepting a narrower rather than a broad dent tried before the Supreme Court. At that time, I had not done the ex- interpretation, a view that rejects He feared a double prosecution, a var- tensive research on that issue because abuse of power and obstruction of Con- iation of double jeopardy, before the it was irrelevant to the Clinton case, gress as within the constitutional cri- same judiciary. These points all sound and I was not fully aware of the com- teria. in criminal terms. pelling counterarguments. So I simply Now, even if the rule of lenity is not But advocates of a broad, open-ended, accepted the academic consensus on an technically applicable to impeach- noncriminal interpretation of ‘‘high issue that was not on the front burner ment—that is a question—certainly, crimes and misdemeanors’’ insist that at the time. the policies underlying that rule are Hamilton is on their side, and they cite But because this impeachment di- worthy and deserving of consideration the following words regarding the rectly raises the issue of whether as guides to constitutional interpreta- court of impeachment. And I think I criminal behavior is required, I have tion. heard these words quoted more than gone back and read all the relevant his- Now, here I am making, I think, a any other words in support of a broad torical material, as nonpartisan aca- very important point. Even if the Sen- view of impeachment, and they are demics should always do, and have now ate were to conclude that a technical misunderstood. Here is what he said concluded that the Framers did intend crime is not required for impeachment, when describing the court of impeach- to limit the criteria for impeachment the critical question remains—and it is ment. He said: to criminal-type acts akin to treason, the question I now want to address my- The subjects of its jurisdiction— bribery, and they certainly did not in- self to—do abuse of power and objec- tion of Congress constitute impeach- Those are important words, the sub- tend to extend it to vague and open- able offenses? jects of its jurisdiction, by which he ended and noncriminal accusations The relevant history answers that meant treason, bribery, and other high such as abuse of power and obstruction question clearly in the negative. Each crimes and misdemeanors. of Congress. I published this academic conclusion of these charges suffers from the vice The subjects of its jurisdiction are those well before I was asked to present the of being ‘‘so vague a term that they offenses which proceed from the misconduct of public men, or, in other words, from the argument to the Senate in this case. will be equivalent of tenure at the abuse or violation of some public trust. They My switch in attitude, purely aca- pleasure of the Senate,’’ to quote again are of a nature which may with peculiar pro- demic, purely nonpartisan. the Father our Constitution. priety be denominated POLITICAL, as they Nor am I the only participant in this Abuse of power is an accusation eas- relate chiefly to injuries done immediately proceeding who has changed his mind. ily leveled by political opponents to society itself.’’ Several Members of Congress, several against controversial presidents. In our Those are Hamilton’s words. They Senators expressed different views re- long history, many Presidents have are often misunderstood as suggesting garding the criteria for impeachment been accused of abusing their power. I that the criteria authorizing impeach- when the subject was President Clinton will now give you a list of Presidents ment include ‘‘the misconduct of pub- than they do now. who in our history have been accused lic men’’ or ‘‘the abuse or violation of When the President was Clinton, my of abusing their power and who would some public trust.’’ colleague and friend Professor Lau- be subject to impeachment under the That is a misreading. These words rence Tribe, who is advising Speaker House managers’ view of abuse: George were used to characterize the constitu- PELOSI now, wrote that a sitting Presi- Washington, for refusal to turn over tional criteria that are ‘‘the subject dent could not be charged with a crime. documents relating to the Jay Treaty; of’’ the jurisdiction of the court of im- Now he has changed his mind. That is John Adams for signing and enforcing peachment: namely, ‘‘treason, bribery, what academics do and should do, the Alien and Sedition laws; and Thom- or other high crimes and mis- based on new information. as Jefferson, for purchasing Louisiana demeanors.’’ If there are reasonable doubts about without congressional authorization. Those specified crimes are political the intended meaning of ‘‘high crimes I will go on—John Quincy Adams; in nature. They are the crimes that in- and misdemeanors,’’ Senators might Martin Van Buren; John Tyler, ‘‘arbi- volve ‘‘misconduct of public men’’ and consider resolving these doubts by ref- trary, despotic and corrupt use of the ‘‘the abuse or violation of some public erence to the legal concept known as veto power’’; James Polk—and here I trust.’’ lenity. quote Abraham Lincoln. Abraham Lin- Hamilton was not expanding the Lenity goes back to hundreds of coln accused Polk of abusing the power specified criteria to include—as inde- years before the founding of our coun- of his office, ‘‘contemptuously dis- pendent grounds for impeachment— try and was a concept in Great Britain, regarding the Constitution, usurping

VerDate Sep 11 2014 02:40 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00035 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.050 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE S614 CONGRESSIONAL RECORD — SENATE January 27, 2020 the role of Congress, and assuming the tion. All politicians understand that dy- That is clear from the language of the role of dictator.’’ He didn’t seek to im- namic. Constitution. You cannot turn conduct peach him, just sought to defeat him. Like all human beings, Presidents that is not impeachable into impeach- Abraham Lincoln was accused of and other politicians, persuade them- able conduct simply by using words abusing his power for suspending the selves that their actions seen by their like ‘‘quid pro quo’’ and ‘‘personal ben- writ of habeas corpus during the Civil opponents as self-serving are primarily efit.’’ War; President Grant, Grover Cleve- in the national interest. In order to It is inconceivable that the Framers land, William McKinley, Theodore Roo- conclude that such mixed-motive ac- would have intended so politically sevelt, William Taft, Woodrow Wilson, tions constitute an abuse of power, op- loaded and promiscuously deployed a Franklin Roosevelt, Harry Truman, ponents must psychoanalyze the Presi- term as ‘‘abuse of power’’ to be Jimmy Carter, Ronald Reagan—con- dent and attribute to him a singular, weaponized as a tool of impeachment. cerning Iran-Contra, and now I say, self-serving motive. Such a subjective It is precisely the kind of vague, open- Professor Laurence Tribe said the fol- probing of motives cannot be the legal ended, and subjective term that the lowing: ‘‘Therein lies what appears to basis for a serious accusation of abuse Framers feared and rejected. be the most serious breach of duty by of power that could result in the re- Consider the term ‘‘maladministra- the President, a breach that may well moval of an elected President. tion.’’ I want to get back to that term entail an impeachable abuse of Yet this is precisely what the man- because it was a term explicitly re- power’’—George H.W. Bush, ‘‘The fol- agers are claiming. Here is what they jected by the Framers. Recall that it lowing was released today by the Clin- said: ‘‘Whether the President’s real was raised, Madison objected to it, and ton-Gore campaign: In the past weeks, reason, the one actually in his mind, it was then withdrawn, and it was not Americans have begun to learn the ex- are at the time legitimate.’’ a part of the criteria. We all agree that tent to which George Bush and his ad- What a standard, what was in the maladministration is not a ground for impeachment. If the House were to im- ministration have abused their govern- President’s mind—actually in his peach on maladministration, it would mental power for political purposes.’’ mind? What was the real reason? Would be placing itself above the law. There is That is how abuse of power should be you want your actions to be probed for no doubt about that because the Fram- used, as campaign rhetoric. It should what was ‘‘the real reason’’ why you ers explicitly rejected maladministra- be issued as statements of one political acted? Even if a President were—and it clearly shows in my mind that the tion. party against the other. That is the na- Now what is maladministration? It is Framers could not have intended this ture of the term. Abuse of power is a comparable in many ways to abuse of psychoanalytical approach to Presi- political weapon, and it should be lev- power. Maladministration has been de- dential motives to determine the dis- eled against political opponents. Let fined as ‘‘abuse, corruption, misrule, tinction between what is impeachable the public decide if that is true. dishonesty, misuse of office, and mis- and what is not. Barack Obama, the House Committee behavior.’’ Professor Bowie in his arti- Here, I come to a relevant and con- on the Judiciary held an entire hearing cle in today’s ‘‘New York Times’’ temporaneous issue: Even if a Presi- entitled ‘‘Obama Administration’s equates abuse of power with ‘‘mis- dent—any President—were to demand a Abuse of Power.’’ conduct in office’’—misconduct in of- quid pro quo as a condition to sending By the standards applied to earlier fice—thus supporting the view that, aid to a foreign country—obviously a Presidents, nearly any controversial when the Framers rejected maladmin- highly disputed matter in this case— act by a Chief Executive could be de- istration, they also rejected abuse of that would not, by itself, constitute an nominated as abuse of power. For ex- power as a criteria for impeachment. ample, past Presidents have been ac- abuse of power. Blackstone denominated maladmin- cused of using their foreign policy, Consider the following hypothetical istration as a ‘‘high misdemeanor’’ even their war powers, to enhance their case that is in the news today as the that is punishable ‘‘by the method of electoral prospects. Presidents often Israeli Prime Minister comes to the parliamentary impeachment, wherein have mixed motives that include par- United States for meetings. Let’s as- such penalties, short of death, are in- tisan personal benefits, along with the sume a Democratic President tells flicted.’’ He included among those im- national interest. Israel that foreign aid authorized by prisonment. In other words, you can go Professor Josh Blackman, constitu- Congress will not be sent or an Oval Of- to prison for maladministration. De- tional law professor, provided the fol- fice meeting will not be scheduled un- spite this British history, Madison in- lowing interesting example: less the Israelis stop building settle- sisted it be rejected as a constitutional In 1864, during the height of the Civil War, ments—quid pro quo. I might dis- criteria for impeachment because ‘‘so President Lincoln encouraged General Wil- approve of such a quid pro quo demand vague a term will be equivalent to a liam Sherman to allow soldiers in the field on policy grounds, but it would not tenure during pleasure of the Senate,’’ to return to Indiana to vote. constitute an abuse of power. and it was subsequently rejected and What was Lincoln’s primary motiva- Quid pro quo alone is not a basis for withdrawn by its sponsor. tion, the professor asks. abuse of power. It is part of the way This important episode in our con- He wanted to make sure that the govern- foreign policy has been operated by stitutional history supports the con- ment of Indiana remained in the hands of Re- Presidents since the beginning of time. clusion that the Framers did not ac- publican loyalists who would continue the The claim that foreign policy decisions cept, whole hog, the British approach war until victory. Lincoln’s request risked can be deemed abuses of power based to impeachment as some have mistak- undercutting the military effort by depleting on subjective opinions about mixed or enly argued. Specifically, they rejected the ranks. Moreover, during this time, sol- sole motives that the President was in- vague and open-ended criteria, even diers in the remaining States faced greater terested only in helping himself dem- risks than did the returning Hoosiers. those that carried the punishment of onstrate the dangers of employing the The professor continues: imprisonment in Britain because they vague, subjective, and politically mal- did not want to turn our new Republic Lincoln had personal motives. Privately, leable phrase ‘‘abuse of power’’ as a into a parliamentary-style democracy he sought to secure victory for his party; but constitutionally permissible criteria the President, as a President and as a party in which the Chief Executive could be leader and Commander in Chief made a deci- for the removal of a President. removed from office simply by a vote sion with life-or-death consequences. Now, it follows from this that, if a of nonconfidence. That is what they President—any President—were to Professor Blackman used the fol- didn’t want. have done what ‘‘The Times’’ reported lowing relevant conclusion from this Sure, nobody was above the law, but about the content of the Bolton manu- and other historical events. He said: they created a law. They created a law script, that would not constitute an by which Congress could impeach, and Politicians routinely promote the under- impeachable offense. Let me repeat it. standing of the general welfare while at the they did not want to expand that law back of their minds considering how these Nothing in the Bolton revelations, even to include all the criteria that per- actions will affect their popularity. Often if true, would rise to the level of an mitted impeachment in Great Britain. the two concepts overlap. What is good for abuse of power or an impeachable of- The Framers would never have in- the country is good for the official’s reelec- fense. That is clear from the history. cluded and did not include abuse of

VerDate Sep 11 2014 02:40 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00036 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.052 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE January 27, 2020 CONGRESSIONAL RECORD — SENATE S615 power as an enumerated and defined tweets, find somebody who doesn’t In any event, it is the actual articles criteria for impeachment. By expressly tweet. That will be easy. But don’t that charge abuse of power and ob- rejecting maladministration, they im- allow your subjective judgments to de- struction of justice—neither of which plicitly rejected abuse. termine what is and is not an impeach- are in the Constitution. It is the actual Nor would the Framers have included able offense. Professor Tribe, as I men- articles on which you must all vote, obstruction of Congress as among the tioned, argued that under the criteria not on the more specific list of means enumerated defined criteria—it, too, is of abuse of power, President Ronald included in the text of the articles. vague and indefinable, especially in a Reagan should have been impeached. An analogy to a criminal indictment constitutional system in which, ac- Would any American today accept a might be helpful. If a defendant were cording to Hamilton in Federalist No. legal system in which prosecutors accused of dishonesty, committing the 78, ‘‘the legislative body’’ is not them- could charge a citizen with abuse of crime of dishonesty, it wouldn’t matter selves ‘‘the constitutional judge of conduct? Can you imagine, abuse of that the indictment listed as well the their own powers’’ and the ‘‘construc- conduct? Fortunately, we have con- means toward dishonesty, a variety of tion they put on them’’ is not ‘‘conclu- stitutional protections against a stat- far more specific potential offenses. sive upon other departments.’’ Instead, ute that ‘‘either forbids or requires the Dishonesty is simply not a crime. It is he said, ‘‘the courts were designed as doing of an act in terms so vague that too broad a concept. It is not in the an intermediate body between the peo- men and women of common intel- statute. It is not a crime. The indict- ple [as declared in the Constitution] ligence must necessarily guess at its ment would be dismissed because dis- and the legislature’’ in order ‘‘to keep meaning and differ as to its applica- honesty is a sin and not a crime, even the latter within the limits assigned to tion.’’ It is very difficult to imagine if the indictment included a long list of their authority.’’ criteria that fits this description of more specific acts of dishonesty. Under our system of separation of what the Supreme Court has said vio- Nor can impeachment be based on a powers and checks and balances, it can- lates the first essential rule of due bunching together of nonimpeachable not be an ‘‘obstruction of Congress’’ for process more closely than abuse of sins, none of which, standing alone, a President to demand judicial review power and obstruction of Congress. meet the constitutional criteria. Only of legislative subpoenas before they are Another constitutional rule of con- if at least one constitutionally author- complied with. The legislature is not struction is that, when words can be in- ized offense is proved can the Senate the ‘‘Constitutional judge of their own terpreted in an unconstitutionally then consider other conduct in deciding powers,’’ including the power to issue vague manner or a constitutional pre- the discretionary issue of whether re- subpoenas. The courts were designated cise manner, the latter must be chosen. moval is warranted. to resolve disputes between the execu- You are entitled to use that rule of in- In other words, your jurisdiction is tive and legislative branches, and it terpretation as well in deciding wheth- based on commission of an impeach- cannot be obstruction of Congress to er or not obstruction of Congress or able offense. Once that jurisdictional invoke the constitutional power of the abuse of power can be defined as fitting element is satisfied, you have broad courts to do so. within the criteria of high crimes and discretion to determine whether re- By their very nature, words like misdemeanors. moval is warranted, and you can con- ‘‘abuse of power’’ and ‘‘obstruction of For the Senate to remove a duly- sider a wide array—a wide array—of Congress’’ are standardless. It is impos- elected President on vague, noncon- conduct, criminal and noncriminal. sible to put standards into words like stitutional grounds, such as abuse of But you have no jurisdiction to remove that. Both are subjective matters of de- power or obstruction of Congress, unless there is at least one impeach- gree and amenable to varying powers of would create a dangerous precedent able offense within the meaning of high interpretations. It is impossible to and ‘‘be construed,’’ in the words of crimes and misdemeanors. know in advance whether a given ac- Senator James N. Grimes, ‘‘into ap- In the 3 days of argument, the House tion will subsequently be deemed to be proval of impeachment as part of fu- managers tossed around words even on one side or the other of the line. In- ture political machinery.’’ vaguer and more open-ended than deed, the same action with the same This is a realistic threat to all future ‘‘abuse’’ and ‘‘obstruction’’ to justify state of mind can be deemed abusive or Presidents who serve with opposing their case for removal. These words in- obstructive when done by one person legislative majorities that could easily clude ‘‘trust,’’ ‘‘truth,’’ ‘‘honesty,’’ and but not when done by another. That is concoct vague charges of abuse or ob- finally ‘‘right.’’ These aspirational the essence of what the rule of law is struction. The fact that a long list of words of virtue are really important, not, when you have a criteria that can Presidents who were accused of abuse but they demonstrate the failure of the be applied to one person in one way and of power were not impeached dem- managers to distinguish alleged polit- another person in another way and onstrates how selectively this term has ical sins from constitutionally im- they both fit within the terms ‘‘abuse and can be used in the context of im- peachable offenses. of power.’’ peachment. We all want our Presidents and other A few examples will illustrate the I am sorry, House managers, you just public officials to live up to the highest dangers of standardless impeachment picked the wrong criteria. You picked standards set by Washington and Lin- criteria. My friend and colleague Pro- the most dangerous possible criteria to coln, although both of them were ac- fessor Noah Feldman argued that a serve as a precedent for how we super- cused of abuse of power by their polit- tweet containing what he believed false vise and oversee future Presidents. The ical opponents. information could ‘‘get the current idea of abuse of power and obstruction The Framers could have demanded President impeached if it is part of a of Congress are so far from what the that all Presidents must meet Con- broader course of conduct’’—a tweet. Framers had in mind that they so gressman SCHIFF’s standards of being Professor Allan Lichtman has argued clearly violate the Constitution and honest, trustworthy, virtuous, and that the President could be impeached would place Congress above the law. right in order to complete their terms, based on his climate change policy, Nor are these vague, open-ended, and but they didn’t because they under- which he regards as ‘‘a crime against unconstitutional Articles of Impeach- stand human fallibility. As Madison humanity.’’ I have to tell you, I dis- ment that were charged here—they are put it, ‘‘If men were angels, no govern- agree with our President’s climate not saved by the inclusion in these ar- ment would be necessary,’’ and then, change policy, as I do many of his ticles of somewhat more specific but speaking of Presidents and other public other policies, but that is not a criteria still not criminal-type conduct. The officials, ‘‘If angels were to govern for impeachment. That is a criteria for specifications are themselves vague, men, neither internal nor external con- deciding who you are going to vote for. open-ended, and do not charge im- trols on government would be nec- If you don’t like the President’s poli- peachable offenses. They include such essary.’’ cies on climate change, vote for the accusations as compromising national The Framers understood that if they other candidate. Find a candidate who security, abusing the power of the set the criteria for impeachment too has better policies on climate change. Presidency, and violating his oath of low, few Presidents would serve their If you don’t like the President’s office. terms. Instead, their tenure would be

VerDate Sep 11 2014 02:40 Jan 28, 2020 Jkt 099060 PO 00000 Frm 00037 Fmt 4624 Sfmt 0634 E:\CR\FM\G27JA6.053 S27JAPT1 dlhill on DSKBBY8HB2PROD with SENATE S616 CONGRESSIONAL RECORD — SENATE January 27, 2020 at the pleasure of the legislature, as it count. In other words, I was on the dress this distinguished body on this was and still is in Britain. So they set other side of that issue. I thought the important matter. Thank you so much the standards and the criteria high, re- Supreme Court in that case favored the for your attention. quiring not sinful behavior—not dis- Republicans over the Democrats, and I The CHIEF JUSTICE. The majority honesty, distrust, or dishonor—but asked them to apply the ‘‘shoe on the leader is recognized. treason, bribery, or other high crimes other foot’’ test. I am sorry. Are you complete? and misdemeanors. I now respectfully ask this distin- Mr. Cipollone. I end this presentation today with a guished Chamber to consider that heu- Mr. Counsel CIPOLLONE. Mr. Chief nonpartisan plea for fair consideration ristic test in evaluating the arguments Justice, Majority Leader MCCONNELL, of my arguments and those made by you have heard in this historic Cham- Democratic Leader SCHUMER, Senators, counsel and managers on both sides. I ber. It is an important test because don’t worry, this won’t take very long. willingly acknowledge that the aca- how you vote on this case will serve as We are going to stop for the day, and demic consensus is that criminal con- a precedent for how other Senators of we will continue with our presen- duct is not required for impeachment different parties, different back- tations tomorrow. I just had three ob- and that abuse of power and obstruc- grounds, and different perspectives servations that I wanted to briefly tion of Congress are sufficient. I have vote in future cases. make for you. read and respectfully considered the Allowing a duly-elected President to First of all, thank you very much, academic work of my many colleagues be removed on the basis of Professor Dershowitz and all the pre- who disagree with my view and the few standardless, subjective, ever-changing senters from our side today. who accept it. I do my own research, criteria—abuse of power and obstruc- I was sitting here listening to Pro- and I do my own thinking, and I have tion of Congress—risks being ‘‘con- fessor Dershowitz, and believe it or never bowed to the majority on intel- strued,’’ in the words of Senator not, my mind went back to law school, lectual or scholarly matters. Grimes, a Republican Senator from and I began thinking, how would this What concerns me is that during this Iowa, who voted against impeaching impeachment look as a law school hy- impeachment proceeding, there have President Andrew Johnson, ‘‘into ap- pothetical question on an exam? How been few attempts to respond to my ar- proval of impeachments as part of fu- would we answer that question? And I guments and other people’s arguments ture political machinery.’’ found myself thinking maybe that is a opposed to the impeachment of this As I began, I will close. I am here good way to think about it. President. Instead of answering my ar- today because I love my country. I love The question would go something guments and those of Justice Curtis the country that welcomed my grand- like this: Imagine you are a U.S. Sen- and Professor Bowie and others on parents and made them into great pa- ator and you are sitting in an impeach- triots and supporters of the freest and their merits and possible demerits, ment trial. The Articles of Impeach- most wonderful country in the history they have simply been rejected with ment before you had been passed on a of the world. I love our Constitution— negative epithets. purely partisan basis for the first time I urge the Senators to ignore these the greatest and most enduring docu- in history. In fact, there was bipartisan epithets and to consider the arguments ment in the history of human kind. opposition to the Articles of Impeach- I respectfully urge you not to let and counterarguments on their merits, ment. They have been trying to im- your feelings about one man—strong as especially those directed against the peach the President from the moment they may be—establish a precedent unconstitutional vagueness of abuse of of his inauguration for no reason—just that would undo the work of our because he won. power and obstruction of Congress. Founders, injure the constitutional fu- I now offer a criteria for evaluating The articles before you do not allege ture of our children, and cause irrep- conflicting arguments. The criteria a crime or even any violation of the arable damage to the delicate balance that I offer I have long called the ‘‘shoe civil law. One article alleges obstruc- of our system of separation of powers on the other foot’’ test. It is a collo- tion of Congress simply for exercising and checks and balances. quial variation of the test proposed by As Justice Curtis said during the longstanding constitutional rights that the great legal and political thinker, trial of Andrew Johnson, a greater every President has exercised. The my former colleague, John Rawls. It is principle is at stake than the fate of President was given no rights in the simple in its statement but difficult in any particular President. The fate of House of Representatives. The Judici- its application. future Presidents of different parties ary Committee conducted only 2 days As a thought experiment, I respect- and policies is also at stake, as is the of hearings. fully urge each of you to imagine that fate of our constitutional system. The You are sitting through your sixth the person being impeached were of the passions and fears of the moment must day of trial. The House is demanding opposite party of the current President not blind us to our past and to our fu- witnesses from you that they refused but that in every other respect, the ture. to seek themselves. When confronted facts were the same. Hamilton predicted that impeach- with expedited court proceedings re- I have applied this test to the con- ment would agitate the passions of the garding subpoenas they had issued, stitutional arguments I am offering whole community and enlist all their they actually withdrew those sub- today. I would be making the same animosities, partialities, influence, and poenas. constitutional arguments in opposition interest on one or the other. The Sen- They are now criticizing you in to the impeachment on these two ate—the Senate—was established as a strong, accusatory language if you grounds regardless of whether I voted wise and mature check on the passions don’t capitulate to their unreasonable for or against the President and re- of the moment with ‘‘a deep responsi- demands and sit in your seats for gardless of whether I agreed or dis- bility to future times.’’ months. An election is only months agreed with his or her policies. Those I respectfully urge the distinguished away, and for the first time in history, of you who know me know that is the Members of this great body to think they are asking you to remove a Presi- absolute truth. I am nonpartisan in my beyond the emotions of the day and to dent from the ballot. They are asking application of the Constitution. Can vote against impeaching on the uncon- you to do something that violates all the same can be said for all of my col- stitutional articles now before you. To past historical precedents that you leagues who support this impeachment, remove a duly-elected President and to have studied in class and principles of especially those who opposed the im- prevent the voters from deciding his democracy and take the choice away peachment of President Bill Clinton? fate on the basis of these articles would from the American people. It would I first proposed the shoe test 20 years neither do justice to this President nor tear apart the country for generations ago in evaluating the Supreme Court’s to our enduring Constitution. There is and change our constitutional system decision in Bush v. Gore, asking the no conflict here. Impeaching would forever. Justices to consider how they would deny both justice to an individual and Question: What should you do? have voted had it been Candidate Bush, justice to our Constitution. Your first thought might be, that is rather than Gore, who was several hun- I thank you for your close attention. not a realistic hypothetical. That could dred votes behind and seeking a re- It has been a great honor for me to ad- never happen in America.

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