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, WEDNESDAY, JANUARY 29, 2020 No. 19 Senate The Senate met at 1:13 p.m. and was onment, while the Senate of the United managers, as they have framed their called to order by the Chief Justice of States is sitting for the trial of the articles case, they have explained—and this is the United States. of impeachment exhibited by the House of pointed out in our trial memorandum— Representatives against Donald John Trump, that in the House Judiciary Committee f President of the United States. report, they specify that the standard TRIAL OF DONALD J. TRUMP, The CHIEF JUSTICE. The majority they have to meet is to show that this PRESIDENT OF THE UNITED leader is recognized. is a sham investigation; it is a bogus STATES ORDER OF PROCEDURE investigation. These investigations The CHIEF JUSTICE. The Senate Mr. MCCONNELL. Mr. Chief Justice, have—there is not any legitimate pub- will convene as a Court of Impeach- today the Senate will conduct up to 8 lic purpose. That is the language: any ment. hours of questions to the parties deliv- ‘‘legitimate public purpose.’’ That is The Chaplain will lead us in prayer. ered in writing to the Chief Justice. As the standard they have set for them- PRAYER a reminder, the two sides will alternate selves in being able to make this claim The Chaplain, Dr. Barry C. Black, of- and answers should be kept to 5 min- under their theory of what an abuse of fered the following prayer: utes or less. power offense can be. Let us pray. The majority side will lead off with a It is a very demanding standard that Divine Shepherd, honor, glory, and question from the Senator from Maine. they have set for themselves to meet, power belong to You. Refresh our Sen- Ms. COLLINS. Mr. Chief Justice. and they have even said—they came The CHIEF JUSTICE. The Senator is ators as they enter a new phase of this up, and they talked a lot about the recognized. impeachment trial. May they realize Bidens. They talked a lot about these Ms. COLLINS. I send a question to that You have appointed them for this issues and 2016 election interference be- the desk on behalf of myself, Senator great service, and they are accountable cause they were saying there is not MURKOWSKI, and Senator ROMNEY. to You. even a scintilla—a scintilla of any evi- Lord, empower them to labor today The CHIEF JUSTICE. This is a ques- dence of anything worth looking into with the dominant purpose of pleasing tion for the counsel for the President: there. And that is the standard that You, knowing that it is never wrong to If President Trump had more than one mo- they would have to meet, showing that do right. Give them resiliency in their tive for his alleged conduct, such as the pur- there is no possible public interest and toil, as they remember Your promise suit of personal political advantage, rooting the President couldn’t have had any that they will reap a bountiful harvest out corruption, and the promotion of na- smidgeon, even, of a public interest if they don’t give up. Help them to fol- tional interests, how should the Senate con- sider more than one motive in its assessment motive because they recognize that low the road of humility that leads to of article I? once you get into a mixed-motive situ- honor, as they find their safety in Mr. Counsel PHILBIN. Mr. Chief Jus- ation—if there is both some personal trusting You. We pray in Your majestic Name. tice, Senators, in response to that motive but also a legitimate public in- Amen. question, there are really two layers to terest motive—it can’t possibly be an my answer because I would like to offense because it would be absurd to PLEDGE OF ALLEGIANCE point out first that, even if there was have the Senate trying to consider: The Chief Justice led the Pledge of only one motive, the theory of abuse of Well, was it 48 percent legitimate in- Allegiance, as follows: power that the House managers have terest and 52 percent personal interest I pledge allegiance to the Flag of the presented, that the subjective motive or was it the other way, was it 53 per- United States of America, and to the Repub- lic for which it stands, one nation under God, alone can become the basis for an im- cent and 47 percent? You can’t divide it indivisible, with liberty and justice for all. peachable offense, we believe is con- that way. THE JOURNAL stitutionally defective. It is not a per- That is why they recognize that to The CHIEF JUSTICE. If there is no missible way to frame a claim of an have even a remotely coherent theory, objection, the Journal of proceedings of impeachable offense under the Con- the standard they have to set for them- the trial is approved to date. stitution. selves is establishing there is no pos- Without objection, it is so ordered. I will put that aside and address the sible public interest at all for these in- The Sergeant at Arms will make the question of mixed motive. If there were vestigations. And if there is any possi- proclamation. a motive that was of public interest bility, if there is something that shows The Sergeant at Arms, Michael C. and also of some personal interest, we a possible public interest and the Presi- Stenger, made proclamation as follows: think it follows even more clearly that dent could have that possible public in- Hear ye! Hear ye! Hear ye! All persons are that cannot possibly be the basis for an terest motive, that destroys their case. commanded to keep silent, on pain of impris- impeachable offense. Even the House So once you are into mixed-motive

∑ 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 23:30 Feb 11, 2020 Jkt 099060 PO 00000 Frm 00001 Fmt 4624 Sfmt 0634 E:\RECORD20\JANUARY\S29JA0.REC S29JA0 sradovich on DSKJLST7X2PROD with CONG-REC-ONLINE S646 CONGRESSIONAL RECORD — SENATE January 29, 2020 land, it is clear that their case fails. I would also add, in response to the Mr. Manager SCHIFF. One last video, There can’t possibly be an impeachable last question, that if any part of the which is even more important and on offense at all. President’s motivation was a corrupt point for Mr. Bolton—No. 3. Think about it. All elected officials, motive, if it was a causal factor in the (Text of Videotape presentation:) to some extent, have in mind how their action to freeze the aid or withhold the Mr. Counsel PURPURA. And once again, conduct, how their decisions, their pol- meeting, that is enough to convict. It not a single witness in the House record that icy decisions will affect the next elec- would be enough to convict under they compiled and developed under their pro- tion. There is always some personal in- criminal law. cedures that we discussed and will continue terest in the electoral outcome of pol- But here there is no question about to discuss provided any firsthand evidence that the President ever linked the Presi- icy decisions, and there is nothing the President’s motivation. And if you wrong with that. That is part of rep- dential meeting to any of the investigations. have any question about the Presi- Anyone who spoke with the President said resentative democracy. And to start dent’s motivation, it makes it all the that the President made it clear that there saying now that, well, if you have a more essential to call the man who was no linkage between security assistance part motive that is for your personal spoke directly with the President, and investigations. electoral gain that that somehow is whom the President confided in and Mr. Manager SCHIFF. We know that going to become an offense, it doesn’t said he was holding up this aid because is not correct, right? Because, of make any sense and it is totally un- he wanted Ukraine to conduct these course, Mick Mulvaney said that the workable and it can’t be a basis for re- political investigations that would help money was linked to these investiga- moving a President from office. him in the next election—if you have tions. He said, in acknowledging a quid The bottom line is, once you are into any question about whether it was a pro quo, that they do it all the time, any mixed-motive situation, once it is factor, the factor, a quarter of the fac- and we should just get over it. Gordon established that there is a legitimate tor, all of the factor, there is a witness Sondland also said the President said, public interest that could justify look- a subpoena away who could answer on the one hand, no quid pro quo but ing into something, just asking a ques- that question. also made it clear that Zelensky had to tion about something, the managers’ case fails, and it fails under their own But the overwhelming body of the go to the mic and announce these in- terms. They recognize that they have evidence makes it very clear, on July vestigations. to show no possible public interest. 26, the day after that phone call, Don- The CHIEF JUSTICE. The gentle- There isn’t any legitimate public inter- ald Trump speaks to Gordon Sondland. man’s time has expired. est, and they have totally failed to That is that conversation at a Ukraine Mr. Manager SCHIFF. Thank you, make that case. restaurant. What does Gordon Mr. Chief Justice. I think we have shown very clearly Sondland—what is the President’s The Senator is recognized. that both of the things that were men- question of Gordon Sondland the day Mr. THUNE. I have a question for the tioned, 2016 election interference and after that call? Is he going to do the in- President’s counsel. the Biden-Burisma situation, are vestigations? The CHIEF JUSTICE. To the Presi- things that raise at least some public Counsel for the President would have dent’s counsel: interest; there is something worth you believe the President was con- Would you please respond to the argu- looking at there. It has never been in- cerned about the burden-sharing. Well, ments or assertions the House managers just vestigated in the Biden situation. Lots he may have had a generic concern made in response to the previous question? of their own witnesses from the State about the burden-sharing in other con- Mr. Counsel PHILBIN. Mr. Chief Jus- Department said that on its face it ap- texts, but here the motivation was tice, Senators, a couple of points that I pears to be a conflict of interest. It is abundantly clear. On that phone with would like to make. at least worth raising a question about Gordon Sondland, the only question he Manager SCHIFF suggested that there or asking a question about it. And wanted an answer to was, Is he going to was no evidence the President was ac- there is that public interest, and that do the investigation? tually interested in burden-sharing be- means their case absolutely fails. Now, bear in mind he is talking to cause he didn’t, apparently, according Thank you. the Ambassador to the European to David Hale, raise it in the telephone The CHIEF JUSTICE. Thank you, Union. What better person to talk to if conversation he had with Gordon counsel. his real concern was about burden- Sondland that Hale seems to have over- The Democratic leader is recognized. sharing than the guy responsible for heard in a restaurant in Kiev. Mr. SCHUMER. Mr. Chief Justice, I Europe’s burden-sharing? But did the Let’s look at the real evidence. send a question to the desk. President raise this at all? Of course As we explained, on June 24, there is The CHIEF JUSTICE. The Demo- not. Of course not. And if you have any an email in the record. It is an email cratic leader asks of the House man- question about it at all, you need to from one person at the Department of agers: hear from his former National Security Defense to another, with the subject John R. Bolton’s forthcoming book states Advisor. Don’t wait for the book. Don’t line: ‘‘POTUS’ follow-up’’—President of that the President wanted to continue with- the United States’ follow-up—asking holding $391 million in military aid to wait until March 17, when it is in black and white, to find out the answer to specifically about burden-sharing. Ukraine until Ukraine announced investiga- It reads: ‘‘What do other NATO mem- tions into his top political rival and the de- your question: Was it all the motive, bunked conspiracy theory about the 2016 some of the motive, or none of the mo- bers spend to support Ukraine?’’ election. Is there any way for the Senate to tive? That was what they were following render a fully informed verdict in this case We think, as I mentioned, the case is up on for the President. without hearing the testimony of Bolton, overwhelmingly clear without John In the transcript of the July 25 call Mulvaney, and the other key eyewitnesses or Bolton, but if you have any question itself, the President said: without seeing the relevant documentary We spend a lot of effort and a lot of time evidence? about it, you can erase all doubt. Let me show a video to underscore— on Ukraine, much more than the European Mr. Manager SCHIFF. Thank you, countries are doing, and they should be help- Mr. Chief Justice. No. 2, slide 2—how important this is. ing you more than we are. Germany does al- The short answer to that question is (Text of Videotape presentation:) most nothing for you. All they do is talk, no. There is no way to have a fair trial Mr. Counsel CIPOLLONE. As House man- and I think it is something you should really without witnesses. And when you have agers, really their goal should be to give you ask them about. a witness who is as plainly relevant as all of the facts because they are asking you He goes on to say that he talks to John Bolton, who goes to the heart of to do something very, very consequential Angela Merkel about it and that they the most serious and egregious of the . . . and ask yourself, ask yourself, given the are not really doing as much as the facts you heard today that they didn’t tell President’s misconduct, who has volun- you, who doesn’t want to talk about the United States is doing. He is raising teered to come and testify, to turn him facts? Who doesn’t want to talk about the burden-sharing, and President away, to look the other way, I think, is facts? Zelensky agreed with him. deeply at odds with being an impartial Impeachment shouldn’t be a shell game. Manager SCHIFF also suggested that juror. They should give you the facts. there is evidence of some connection

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Of course, we asked John going to rely on a constitutional the- ing was garbled and/or misunderstood. Bolton to testify in the House, and he ory—a fringe theory—that even the ad- He immediately clarified and said on refused. We asked his deputy, Dr. vocate of which says is outside the con- that date: ‘‘The President never told Kupperman, to testify, and he refused. sensus of constitutional law to say that me to withhold any money until the Fortunately, we asked their deputy, a President can abuse his power with Ukrainians did anything related to the Dr. Fiona Hill, to testify, and she did. impunity. Imagine where that leads. server.’’ We asked her deputy, Colonel The President can abuse his power with Similarly, he issued a statement just Vindman, to testify, and he did. We did impunity. the other day, making clear again— seek the testimony of John Bolton as That argument made by Professor this is from his counsel; so it is phrased well as Dr. Kupperman, and they re- Dershowitz is at odds with the Attor- in the third person: ‘‘. . . nor did Mr. fused. ney General’s own expressed opinion on Mulvaney ever have a conversation When we subpoenaed Dr. Kupperman, the subject, with Ken Starr’s expressed with the President or anyone else indi- he sued us. He took us to court. When opinion on the subject, and with other cating that Ukrainian military aid was we raised a subpoena with John counsel for the President. Jonathan withheld in exchange for the Ukrainian Bolton’s counsel, the same counsel for Turley, who testified in the House, said investigation of Burisma, the Bidens, Dr. Kupperman, the answer was, ‘‘Sen- that theory is constitutionally, effec- or the 2016 election.’’ ator, you serve us with a subpoena, and tively, nonsense. Even 60-year-old Alan That was Mr. Mulvaney’s statement. we will sue you, too.’’ We knew, based Dershowitz doesn’t agree with 81-year- Lastly, as to the point of whether on the McGahn litigation, it would old Alan Dershowitz and for a reason— this Chamber should hear from Ambas- take months, if not years, to force because where that conclusion leads us sador Bolton—and I think it is impor- John Bolton to come and testify. is that a President can abuse his power tant to consider what that means, be- Because, I think, this is an essential in any kind of way, and there is noth- cause it is not just a question of, well, point to underscore, as the President’s ing you can do about it. should we just hear one witness? That lawyers say, ‘‘They didn’t try hard Are we really ready to accept the po- is not what the real question is going enough to get John Bolton,’’ or ‘‘they sition that this President or the next to be. should have subpoenaed John can withhold hundreds of millions of For this institution, the real ques- Bolton’’—that this is what they are dollars of military aid to an ally at war tion is, What is the precedent that is telling you—let me show you what unless he gets help in his reelection? going to be set for what is an accept- they are telling the court in the Would you say that you could, as able way for the House of Representa- McGahn litigation, if we could pull up President, withhold disaster relief from tives to bring an impeachment of a slide 39. a Governor unless that Governor got President of the United States to this This is from the President’s lawyers his Attorney General to investigate the Chamber, and can it be done in a hur- who are in the court of appeals right President’s political rival? ried, half-baked, partisan fashion? now in the McGahn litigation: ‘‘The That, to me, is the most dangerous They didn’t even subpoena John committee [meaning our committee] argument of all. It is a danger to have Bolton. They didn’t even try to get his lacks article III standing to sue to en- a President engage in this conduct, and testimony. To insist now that this force a congressional subpoena de- it is dangerous to have a trial with no body will become the investigative manding testimony from an individual witnesses and set that precedent. The body—that this body will have to do all on matters related to his duties as an biggest danger of all would be to accept of the discovery—then, this institution Executive Branch official.’’ the idea that a President could abuse will be effectively paralyzed for I mean, it takes your breath away, his office in this way and that the Con- months on end because it will have to the duplicity of that argument. They gress is powerless to do anything about sit as a Court of Impeachment while are before you, saying: They should it. That is certainly not what the now discovery will be done. It would be have tried harder to get these wit- Founders intended. Ambassador Bolton, and if there are nesses. They should have subpoenaed. The CHIEF JUSTICE. The Senator going to be witnesses, in order for They should have litigated for years; from Tennessee. there to be, as they said, a fair trial, Mrs. BLACKBURN. Mr. Chief Jus- and down the street in the Federal fair adjudication, then, the President tice, I send a question to the desk on courthouse, they are arguing: Judge, would have to have his opportunity to my behalf. I am also joined by Senators you need to throw them out. They have call his witnesses, and there would be LOEFFLER, CRAMER, LEE, and MCSALLY. no standing to sue to force a witness to depositions. This would drag on for The CHIEF JUSTICE. Senators testify. months. Then that will be the new BLACKBURN, LOEFFLER, CRAMER, LEE, Are we really prepared to accept precedent. Then that is the way all im- and MCSALLY ask of counsel for the that? peachments will operate in the future, President: Counsel says to think about the where the House doesn’t have to do the Is the standard for impeachment in the precedent we would be setting if you work—it does it quickly and throws it House a lower threshold to meet than the over the transom—and this institution allow the House to impeach a President standard for conviction in the Senate, and gets derailed and has to deal with it. and you permit them to call witnesses. have the House managers met their evi- That should not be the precedent that I would submit: Think about the prece- dentiary burden to support a vote of re- moval? is set here for the way this body will dent you would be setting if you don’t have to handle all impeachments in the allow witnesses in a trial. That, to me, Mr. Counsel PHILBIN. Mr. Chief Jus- future, because, if it becomes that easy is the much more dangerous precedent tice, Senators, as for the standard in for the House to do it, it will be doing here. the House, of course, the House is not it a lot. I will tell you something even more making a final determination. In the Thank you. dangerous, and this was something structure of the Constitution, an im- The CHIEF JUSTICE. Thank you, that we anticipated from the very be- peachment is simply an accusation, counsel. ginning, which is that we understood, and as in most systems where there is The Senator from Massachusetts. when we got to this point, they could simply an accusation being made, the Mr. MARKEY. Mr. Chief Justice, I no longer contest the facts that the House does not have to adhere to the send a question to the desk. President withheld military aid from same standard that is used in the Sen- The CHIEF JUSTICE. The question an ally at war to coerce that ally into ate. from Senator MARKEY to the House doing the President’s political dirty In most instances, House Members managers: work. So now they have fallen back on, have suggested in debates on articles—

VerDate Sep 11 2014 05:38 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00003 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.004 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S648 CONGRESSIONAL RECORD — SENATE January 29, 2020 of whether or not to approve Articles The only two people with statements Five, we also know there is no other of Impeachment—that they should on record who spoke to the President, reason. The entire apparatus and struc- have clear and convincing evidence in Gordon Sondland and Senator RON ture of the Defense Department, the the view of the Members voting on it JOHNSON, report that the President said State Department that should have that there was some impeachable of- to them there was no quid pro quo, and been dealing with the other legitimate fense, and that is all—some, not even the aid flowed without anything ever reasons—you know, the policy debate that standard. So there is simply being done related to investigations. that the President’s counsel wants you enough evidence that an accusation That is what is in the record. That is to believe that this was about—they can be made. It is definitely a lower what the House managers have to rely were all kept in the dark. standard than the standard that has to on to make their case, and they have And the supposed interagency proc- be met here in a trial for an ultimate failed to prove their case beyond a rea- ess that they made up several months verdict. sonable doubt, failed even to prove it after the fact had ended months before, The Constitution speaks in terms of by clear and convincing evidence— during the last interagency meetings. a conviction in the Senate. As both failed to prove it at all, in my opinion. Now I will make one final point. Professor Dershowitz and Judge Starr Thank you. Again, if you have any lingering ques- pointed out in their comments, every- The CHIEF JUSTICE. Thank you, tions about direct evidence, any where in the Constitution in which counsel. thoughts about anything we just there is any mention of impeachment, The Senator from California is recog- talked about, anything I have just re- it is spoken of in terms of the criminal nized. layed or that we have talked about the law. The offenses that define the juris- Mrs. FEINSTEIN. Mr. Chief Justice, I last week, there is a way to shed addi- diction for the Senate in its sitting as send a question to the House managers. tional light on it: You can subpoena a Court of Impeachment are treason, The CHIEF JUSTICE. Senator FEIN- Ambassador Bolton and ask him that bribery, and high crimes and mis- STEIN asks the House managers: question directly. demeanors. The Constitution speaks of The President’s counsel stated that ‘‘there The CHIEF JUSTICE. Thank you, a conviction, upon being convicted in is simply no evidence anywhere that Presi- Mr. Manager. the Senate. It speaks of all crimes dent Trump ever linked security assistance The Senator from Utah. being tried by a jury except in cases of to any investigations’’—is that true? Mr. LEE. Mr. Chief Justice, I send a impeachment—again, suggesting no- Mr. Manager CROW. Thank you, Mr. question to the desk. tions of the criminal law. Chief Justice, and thank you, Senator, The CHIEF JUSTICE. Senators LEE As we pointed out in our trial memo- for that question. and CRUZ ask of counsel for the Presi- randum, all of these textual references President’s counsel is not correct. dent: make it clear that the standards of the There is, in fact, overwhelming evi- The House managers have argued aggres- criminal law should apply in the trial, dence that the President withheld the certainly to the extent of the burden sively that the President’s actions con- military aid directly to get a personal travened U.S. foreign policy. Isn’t it the and standard of proof to be carried by political benefit to help his individual President’s place—certainly more than the the House managers, which means political campaign. place for career civil servants—to conduct proof beyond a reasonable doubt. It is There are a few points that I would foreign policy? very clear that there is not any re- like to submit for your consideration. Mr. Manager PHILBIN. Thank you, quirement for proof beyond a reason- First, look no further than the words Mr. Chief Justice, Senators, and thank able doubt simply for the House to vote of the President’s Acting Chief of Staff, you for that question. upon Articles of Impeachment. Mick Mulvaney, who, on October 17, It is definitely the President’s place There is a very much higher standard 2019, during a national press conference to set U.S. foreign policy, and the Con- at stake here. As we pointed out in our stitution makes this clear. Article II, trial memorandum, the mere accusa- mentioned—or he was asked about the section 1 vests the entirety of the exec- tion made by the House comes here direct connection between the aid, and utive authority in a President of the with no presumption of regularity at he said ‘‘Did he’’—meaning President United States, and it is critically im- all in its favor. The Senate sits as a Trump, referring to ‘‘he’’—‘‘also men- portant in our constitutional structure trier of both fact and law, reviewing tion to me in passing the corruption re- that that authority is vested solely in both factual and legal issues de novo, lated to the DNC server? Absolutely— the President because the President is and the House managers are held to a no question about that. That’s it, and standard of proving proof beyond a rea- that’s why we held up the money.’’ elected by the people every 4 years. sonable doubt of every element of what He was repeating the President’s own That is what gives the President demo- would be a recognizable impeachable explanation relayed directly to him. cratic legitimacy to have the powers offense. Second, Gordon Sondland testified he that he is given under the Constitu- Here they have failed in their burden spoke by phone with President Trump tion. of proof. They have also failed in the on September 7. The President denied Our system is somewhat unique in law. They have not stated in the Arti- there was a ‘‘quid pro quo,’’ but then the very broad powers that are as- cles of Impeachment anything that on outlined the very quid pro quo that he signed to the Executive, but it works, its face amounts to an impeachable of- wanted from Ukraine. and it makes sense in a democratic sys- fense. On that fact, I think we have Then he told Ambassador Sondland tem precisely because he is directly ac- demonstrated very clearly that they that President Zelensky should ‘‘go to countable to the people for the policies have not presented facts that would a microphone and announce the inves- that he sets. amount to an impeachable offense even tigations . . . he should want to do Those who are staffers in the execu- under their own theories. They have [it].’’ tive branch bureaucracy are not elect- presented only part of the facts and Third, the President’s own advisers, ed by the people. They have no ac- left out the key facts. Mr. Purpura, I including the Vice President and Sec- countability, and they have no legit- think, went through, very effectively, retary Pompeo, were also aware of the imacy or authority that comes from an showing that there are some facts that direct connection. In Warsaw, on Sep- election by the people, and so it is don’t change. tember 1, Ambassador Sondland told critically important to recognize the The transcript of the July 25 call Vice President PENCE that he was con- President sets foreign policy. shows the President doing nothing cerned the delay in security assistance Of course, within some constraints, wrong. President Zelensky said he had become ‘‘tied to the issue of inves- there are some roles for Congress in never felt any pressure. His other ad- tigations.’’ The Vice President simply foreign affairs. To some extent, stat- visers have said the Ukrainians never nodded, tacitly acknowledging the con- utes can be passed, funding provisions felt any pressure. They didn’t think ditionality of the aid. can be passed that relate to it, but the there was any quid pro quo. They Fourth, we heard from Ambassador Supreme Court has recognized time didn’t even know that the military as- Taylor, who, in direct emails and texts, and again that the President is, as the sistance had been held up until the PO- said it was crazy to tie the security as- Court said in Curtiss-Wright, the ‘‘sole LITICO article at the end of August. sistance to the investigations. organ of the nation’’ in foreign affairs.

VerDate Sep 11 2014 23:51 Jan 29, 2020 Jkt 099060 PO 00000 Frm 00004 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.005 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 29, 2020 CONGRESSIONAL RECORD — SENATE S649 So he sets foreign policy, and if staff- does not violate a criminal statute and thus eral statute regarding obstruction of ers disagree with him, that does not may not constitute grounds for impeach- justice in order to justify impeach- mean that the President is doing some- ment as ‘‘high Crimes and Misdemeanors.’’ ment. . . . The Framers intended im- thing wrong, and this is a critical point Does this reasoning imply that if the Presi- peachment to reach the full spectrum dent does not violate a criminal statute he because this is one of the centerpieces could not be impeached for abuses of power of Presidential misconduct that threat- of the abuse of power theory that the such as ordering tax audits of political oppo- ened the Constitution. They also in- House managers would like this body nents, suspending habeas corpus rights, in- tended that our Constitution endure to adopt, and that is that they are discriminately investigating political oppo- throughout the ages.’’ going to impeach the President based nents or asking foreign powers to investigate In other words, if it named one, two, solely on his subjective motive. Members of Congress? and three, but new ones came up and The premise of their case is the ob- Ms. Manager GARCIA of Texas. Mr. you had to keep up with the times, it jective actions that were taken were Chief Justice, Senators, I appreciate was better to have the full spectrum of perfectly permissible and within the the question. Presidential misconduct. Because it President’s constitutional authority, The simple answer is that a Presi- could not anticipate and specifically but if his real reason—if we get inside dent can be impeached without a statu- prohibit every single threat a Presi- his head and figure it out—then we can tory crime being committed. That was dent might someday pose, the Framers impeach him. And the way that they the position and the question that was adopted a standard sufficiently general have tried to explain that they can rejected in President Nixon’s case and and flexible to meet unknown future prove that the President had a bad mo- rejected again in President Clinton’s circumstances. This standard was tive is they say: Well, we compare what case. It should be rejected here in meant, as Mason put it, to capture ‘‘all did the President want to do with what President Trump’s case. manner of great and dangerous the interagency consensus was. The great preponderance of legal au- offences,’’ and compatible with the And I mentioned this the other day. thority confirms that impeachable of- Constitution. They say that the President defied and fenses—of legal authority confirms When the President uses the powers confounded every agency in the execu- that it is not defined in criminal con- of his high office to benefit himself tive branch. That is a constitutionally duct. This authority includes nearly while injuring or ignoring the very peo- incoherent statement. The President every legal scholar who has studied the ple he is duty-bound to serve, he has cannot defy the agencies within the ex- issue, multiple Supreme Court Justices committed an impeachable offense. ecutive branch that are subordinate to who addressed it in public remarks, The records of the Constitutional him. It is only they who can defy the and prior impeachments in the House. Convention offer further clarity. At the President’s determinations of policy. This conclusion follows that con- Constitutional Convention itself, no And so what this all boils down to is stitutional history, text, and structure delegate—no delegate—linked impeach- it shows that this case is built upon a and reflects the absurdities and prac- ment to the technicalities of criminal policy difference and a policy dif- tical difficulties that would result were law. Instead, the Framers principally ference where the President is the one the impeachment power confined to in- intended impeachment for three forms who gets to determine policy because dictable crimes. of Presidential wrongdoing, the ABCs he has been elected by the people to do As slide 35 shows, first, the plain text of impeachment: A, abuse of power; B, that. of the Constitution does not require betrayal of the national interests And we are right now only a few that an offense be a crime in order for through foreign entanglements; and C, months away from another election it to be impeachable. corruption of office and elections. where the people can decide for them- Alexander Hamilton explained that When the President uses his power to selves whether they like what the impeachable offenses, high crimes, and obtain illicit help in his election from President has done with that authority misdemeanors are defined fundamen- a foreign power, it undermines our na- or not, and that is the way disputes tally by the abuse or violation of some tional security and election integrity. about policy like that should be re- public trust—some public trust. They It is a trifecta. solved. are political as they relate chiefly to The CHIEF JUSTICE. Thank you, It is not legitimate to say that there injuries done immediately to society counsel. is some interagency consensus that dis- itself. The Senator from Louisiana. agrees with the President, and there- Offenses against the Constitution are Mr. KENNEDY. Mr. Chief Justice, fore we can show he did something different than offenses against the along with Senator BLACKBURN and wrong, and therefore he can be im- Criminal Code. Some crimes, like jay- Senator CORNYN, I send a question to peached. That is an extraordinarily walking, are not impeachable, and the desk for the House managers and dangerous proposition because it lacks some forms of misconduct often both for counsel to the President. any democratic legitimacy whatsoever. offend the Constitution and the crimi- The CHIEF JUSTICE. In the case of It is contrary to the Constitution, and nal law. such a question, addressed to both it should be rejected by this body. Impeachment and criminality must, sides, they will split the 5 minutes The President is the one who gets to therefore, be assessed separately, even equally. set foreign policy because that is the though the President’s commission of The Senators ask: role assigned to him in the Constitu- indictable crimes may further support Why did the House of Representatives not tion. a case of impeachment and removal. challenge President Trump’s claims of exec- And it was even Lieutenant Colonel The American experience with im- utive privilege and/or immunity during the Vindman, who had complained about peachment confirms this. A strong ma- House impeachment proceedings? the July 25 call, himself ultimately jority of impeachments voted by the We will begin with the House man- agreed that it was only a policy dif- House since 1789 have included one or agers. ference; it was a policy concern that he more allegations that did not charge a Mr. Manager JEFFRIES. Mr. Chief raised about the call. That is not violation of criminal law. Justice, distinguished Senators, thank enough to impeach a President of the Although President Nixon resigned you for your question. The answer is United States. before the House could consider the Ar- simple. We did not challenge any Thank you. ticles of Impeachment against him, the claims related to executive privilege The CHIEF JUSTICE. Thank you, Judiciary Committee’s allegations en- because, as the President’s own counsel counsel. compassed many, many noncriminal admitted during this trial, the Presi- The Senator from New Hampshire. acts. dent never raised the question of exec- Mrs. SHAHEEN. Mr. Chief Justice, I And in President Clinton’s case, the utive privilege. send a question to the desk. Judiciary Committee report accom- What the President did raise was this The CHIEF JUSTICE. Senator SHA- panying the Articles of Impeachment notion of blanket defiance, this notion HEEN asks the House managers: to the House floor stated that ‘‘the ac- that the executive branch, directed by The President’s counsel has argued that tions of President Clinton do not have the President, could completely defy the alleged conduct set out in the articles to rise to the level of violating the Fed- any and all subpoenas issued by the

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Senator LEAHY Yesterday, I had the privilege of at- over documents, not turn over wit- asks the House managers: tending the rolling-out of a peace plan nesses, not produce a single shred of in- The President’s counsel argues that there by the President of the United States formation in order to allow us to was no harm done, that the aid was ulti- regarding the Israel-Palestine conflict, present the truth to the American peo- mately released to Ukraine, the President and I offered you a hypothetical the ple. met with Zelensky at the U.N. in September, other day: What if a Democratic Presi- In the October 8 letter that was sent and that this President has treated Ukraine dent were to be elected and Congress more favorably than his predecessors. What were to authorize much money to ei- to the House of Representatives, there is your response? was no jurisprudence that was cited to ther Israel or the Palestinians and the Mrs. Manager DEMINGS. Mr. Chief justify the notion of blanket defiance. Democratic President were to say to Justice, Senators, thank you so much There has been no case law cited to jus- Israel ‘‘No; I am going to withhold this for your question. tify the doctrine of absolute immunity. money unless you stop all settlement Contrary to what the White House growth’’ or to the Palestinians ‘‘I will In fact, every single court that has counsel has said or has claimed—that considered any Presidential claims of withhold the money Congress author- there was no harm, no foul; that the ized to you unless you stop paying ter- absolute immunity such as the one as- aid eventually got there—we promised serted by the White House has rejected rorists, and the President said ‘‘Quid Ukraine in 2014 that if they gave up pro quo. If you don’t do it, you don’t it out of hand. their nuclear arsenal, that we would be The CHIEF JUSTICE. Counsel for the get the money. If you do it, you get the there for them, that we would defend President. money’’? There is no one in this Cham- them, that we would fight along beside Mr. Counsel PHILBIN. Mr. Chief Jus- ber who would regard that as in any them. tice, Senators, thank you for that way unlawful. The only thing that Fifteen thousand Ukrainians have would make a quid pro quo unlawful is question. died. It was interesting the other day Let me frame this partly in response if the quo were in some way illegal. when the White House counsel said Now, we talked about motive. There to what Manager JEFFRIES said, and I that no American life was lost, and we went through this before. The idea that are three possible motives that a polit- are always grateful and thankful for there was blanket defiance and no ex- ical figure can have: One, a motive in that. But what about our friends? What planation and no case law from the the public interest, and the Israel argu- about our allies in Ukraine? According White House is simply incorrect. I put ment would be in the public interest; to Diplomat Holmes and Ambassador the second is in his own political inter- up slides showing the letter—the letter Taylor, our Ukrainian friends continue est; and the third, which hasn’t been from October 18 that explains specifi- to die on the frontlines, those who are mentioned, would be in his own finan- cally that the subpoenas that had been fighting for us, fighting Russian ag- cial interest, his own pure financial in- issued by the House, because they were gression. When the Ukrainians have terest, just putting money in the bank. not authorized by a vote from the the ability to defend themselves, they I want to focus on the second one for House, were invalid. And there was a have the ability to defend us. just one moment. letter from the White House counsel The aid, although it did arrive, took Every public official whom I know saying that. There was a letter from the work of some Senators in this room believes that his election is in the pub- OMB saying that. There was a letter who had to pass additional laws to lic interest. Mostly, you are right. from the State Department saying make sure that the Ukrainians did not Your election is in the public interest. that. There was specific rationale lose out on 35 million additional dol- If a President does something which he given, citing cases—Watkins, Rumely, lars. believes will help him get elected—in and others—explaining that defect. The Contrary to the President’s tweet the public interest—that cannot be the House managers—the House, Manager that all of the aid arrived and that it kind of quid pro quo that results in im- SCHIFF—chose not to take any steps to arrived ahead of schedule—that is not peachment. correct that. true. All of the aid had not arrived. I quoted President Lincoln, when We also pointed out other defects. Let’s talk about what kind of signal President Lincoln told General Sher- We asserted the doctrine of absolute is sent, withholding the aid for no le- man to let the troops go to Indiana so immunity for senior advisers to the gitimate reason. The President talked that they could vote for the Republican President, which has been asserted by about burden-sharing, but nothing had Party. Let’s assume the President was every President since the 1970s. They changed on the ground. Holding the aid running at that point and it was in his chose not to challenge that in court. for no legitimate reason sent a strong electoral interests to have these sol- We also explained the problem that message that we would not want to diers put at risk the lives of many, they didn’t allow agency counsel to be send to Russia—that the relationship many other soldiers who would be left present at depositions. They chose not between the United States and Ukraine without their company. Would that be to challenge that in court. was on shaky ground. It actually un- an unlawful quid pro quo? No, because These are specific legal reasons, not dercut Ukraine’s ability to negotiate the President, A, believed it was in the blanket defiance. That is a misrepre- with Russia, with which, as everybody national interest, but B, he believed sentation of the record. And there was in this room knows, it is in an active that his own election was essential to no attempt to have that adjudicated in war, in a hot war. victory in the Civil War. Every Presi- court. The reason there was no attempt So when we talk about ‘‘The aid dent believes that. That is why it is so is that the House Democrats were just eventually got there; no harm, no dangerous to try to psychoanalyze the in a hurry. They had a timetable. One foul,’’ that is not true, Senators, and I President, to try to get into the intri- of the House managers said on the floor know that you know that. There was cacies of the human mind. here—they had no time for courts. harm and there was foul. And let us not Everybody has mixed motives, and They had to impeach the President be- forget that Ukraine is not an enemy. for there to be a constitutional im- fore the election, so they had to have They are not an adversary. They are a peachment based on mixed motives that done by Christmas. That is why friend. would permit almost any President to the proper process wasn’t followed The CHIEF JUSTICE. Thank you. be impeached. here, because it was a partisan and po- Senator CRUZ? How many Presidents have made for- litical impeachment that they wanted Mr. CRUZ. Mr. Chief Justice, I send a eign policy decisions after checking to get done all around timing for the question to the desk. with their political advisers and their election. The CHIEF JUSTICE. The question is pollsters? If you are just acting in the Thank you. addressed to counsel for the President: national interest, why do you need The CHIEF JUSTICE. Thank you, As a matter of law, does it matter if there pollsters? Why do you need political counsel. was a quid pro quo? Is it true that quid pro advisers? Just do what is best for the The Senator from Vermont. quos are often used in foreign policy? country. But if you want to balance Mr. LEAHY. Mr. Chief Justice, I have Mr. Counsel DERSHOWITZ. Mr. Chief what is in the public interest with a question for the House managers, and Justice, thank you very much for your what is in your party’s electoral inter- I send it to the desk. question. est and your own electoral interest, it

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So now the argument shifts to all Some are legitimate and some are cor- ticular Senator or Member of Con- quid pro quos are just fine, and they rupt, and you don’t need to be a mind gress—and maybe we are right; it is are all the same. reader to figure out which is which. not in the national interest for every- Well, I am going to apply Professor For one thing, you can ask John body who is running to be elected—but Dershowitz’s own test. He talked about Bolton. for it to be impeachable, you would the step test, John Rawls, the philoso- The CHIEF JUSTICE. Thank you, have to discern that he or she made a pher—let’s put the shoe on the other Mr. Manager. decision solely on the basis of, as the foot and see how that changes our per- Mr. GRASSLEY. Mr. Chief Justice. House managers put it, corrupt mo- ception of the case. I want to merge The CHIEF JUSTICE. The Senator tives, and it cannot be a corrupt mo- that argument with one of the other from Iowa. tive if you have a mixed motive that Presidential counsel’s argument when Mr. GRASSLEY. I send a question to partially involves the national inter- they resorted to the whataboutism the desk. est, partially involves electoral, and about Barack Obama’s open mic. The CHIEF JUSTICE. Senator does not involve personal pecuniary in- Now, that was a very poor analogy, I GRASSLEY asks counsel for the Presi- terest. think you will agree, but let’s use that dent: The House managers do not allege analogy and let’s make it more com- Does the House’s failure to enforce its sub- that this decision, this quid pro quo, as parable to today and see how you feel poenas render its ‘‘obstruction of Congress’’ they call it—and the question is based about this scenario. theory unprecedented? on the hypothesis there was a quid pro President Obama, on an open mic, Mr. Counsel PHILBIN. Mr. Chief Jus- quo. I am not attacking the facts. They said to Medvedev: Hey, Medvedev, I tice, Senators, the answer is yes. As far never allege that it was based on pure know you don’t want me to send this as I am aware, there has never been a financial reasons. It would be a much military money to Ukraine because prior instance in which there has been harder case. they are fighting and killing your peo- an attempt, even in the House, as in If a hypothetical President of the ple. I want you to do me a favor, the Nixon proceeding—never mind in United States said to a hypothetical though. I want you to do an investiga- the Clinton proceeding, which actually leader of a foreign country: Unless you tion of MITT ROMNEY, and I want you left the House and came to the Sen- build a hotel with my name on it and to announce you found dirt on MITT ate—to suggest that there can be ob- unless you give me a million-dollar ROMNEY, and if you are willing to do struction of Congress when there kickback, I will withhold the funds. that, quid pro quo, I will not give hasn’t been anything beyond simply That is an easy case. That is purely Ukraine the money they need to fight issuing a subpoena, getting resistance, corrupt and in the purely private inter- you on the frontline. and then throwing up your hands and est. Do any of us have any question that giving up and saying: Oh, well, that is But a complex middle case is: I want Barack Obama would be impeached for obstruction. to be elected. I think I am a great that kind of misconduct? Are we really In the Clinton situation, most of the President. I think I am the greatest ready to say that would be OK, that litigation was with independent coun- President there ever was, and if I am Barack Obama asked Medvedev to in- sel, and there were privileges asserted not elected, the national interest will vestigate his opponent and would with- in litigation and litigation again and suffer greatly. That cannot be. again, but the point is that the issues The CHIEF JUSTICE. Thank you, hold money from an ally that needed to about the privileges were all litigated, counsel. defend itself to get an investigation of Mr. DERSHOWITZ. Thank you, Mr. MITT ROMNEY? and they were resolved before things Chief Justice. That is the parallel here. And to say, came to this body. The CHIEF JUSTICE. I recognize the well, yes, we condition aid all the Similarly, in the Nixon impeachment democratic leader. time—for legitimate reasons, yes. For proceeding within the House, a lot of Mr. SCHUMER. Mr. Chief Justice, I legitimate reasons, you might say to a investigation had been done by the spe- send a question to the desk. Governor of a State: Hey, Governor of cial counsel, and there was litigation The CHIEF JUSTICE. Senator SCHU- the State, you should chip in more to- over assertions of privileges there in MER’s question is for the House man- ward your own disaster relief. But if order to get the tapes, and some tapes agers: the President’s real motive in depriv- and transcripts had already been Would you please respond to the answer ing the State of disaster relief is be- turned over, but, again, there was liti- that was just given by the President’s coun- cause that Governor will not get his at- gation about the assertion of the privi- sel? torney general to investigate the Presi- lege in response to the grand jury sub- Mr. Manager SCHIFF. I would be de- dent’s political rival, are we ready to poena that then fed into the House’s lighted. There are two arguments that say that the President can sacrifice the proceedings. Professor Dershowitz makes: one that interest of the people of that State or, So it would be completely unprece- is, I have to say, a very odd argument in the case of Medvedev, the people of dented for the House to attempt to ac- for a criminal defense lawyer to make, our country because all quid pro quos tually bring a charge of obstruction and that is, it is highly unusual to have are fine? It is carte blanche? Is that into the Senate where all they can a discussion in trial about the defend- really what we are prepared to say present is: Well, we issued a subpoena, ant’s state of mind, intent, or mens with respect to this President’s mis- and there were legal grounds asserted rea. conduct or the next? for the invalidity of the subpoena, and In every courtroom in America, in Because if we are, then the next there were different grounds, as I have every criminal case—or almost every President of the United States can ask gone through. I will not repeat them criminal case, except for a very small for an investigation of you. They can all in detail here. sliver where there is strict liability— ask for help in their next election from Some of those subpoenas were just the question of the defendant’s intent any foreign power, and the argument invalid when issued because there was and state of mind is always an issue. will be made: No, Donald Trump was no vote. Some of the subpoenas for wit- This is nothing novel here. You don’t acquitted for doing exactly the same nesses were invalid because senior ad- require a mind reader. In every crimi- thing; therefore, it must not be im- visers to the President had absolute nal case—and I would assume in every peachable. immunity from compulsion. Some were impeachment case—yes, you have to Now, bear in mind that efforts to that they were forcing executive show that the President was operating cheat an election are always going to branch officials to testify without the from a corrupt motive, and we have. be in proximity to an election. And if benefit of agency counsel and executive But he also makes an argument that you say you can’t hold a President ac- branch counsel with them. So there all quid pro quos are the same and all countable in an election year, where were various reasons asserted for the

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Mr. COTTON. I send a question to the again today—that, well, but if we had Zelensky’s people telling him he had to desk for the President’s counsel on be- gone to court, the Trump administra- do the investigations to get what he half of myself and Senators BOOZMAN, tion would have said that the courts wanted. All of this evidence makes us MCSALLY, BLACKBURN, KENNEDY, and don’t have jurisdiction over those understand that phone call even more TOOMEY. claims. Now, that is true. In some clearly. The CHIEF JUSTICE. The Senators cases—there is one being litigated Now, the President’s team claimed ask the President’s counsel: right now related to the former Coun- that Mr. Zelensky and other Ukrain- Did the House bother to seek testimony or sel for the President, Don McGahn. The ians said they never felt pressured over litigate executive privilege issues during the Trump administration’s position, just investigations. Now, of course, they month during which it held up the impeach- like the position of the Obama admin- didn’t say that publicly. They were ment articles before sending them to the istration, is that an effort by the House afraid of the Russians finding out. But Senate? to enforce a subpoena in an article III Zelensky said privately that he didn’t Mr. Counsel PHILBIN. Mr. Chief Jus- court is a nonjusticiable controversy. want to be involved in U.S. domestic tice, Senators, no, the House did not That is our position, and we would politics. He resisted announcing the in- seek to litigate any of the privilege argue that in court. vestigations. He only relented and issues during that time. In fact, they But that is part of what would have scheduled the CNN meeting after it be- filed no lawsuits arising from this im- to be litigated. That doesn’t change the came clear that he was not going to re- peachment inquiry to seek to contest fact that the House managers can’t ceive the support that he needed and the bases that the Trump administra- have it both ways. I want to make this that Congress had provided in our ap- tion gave for resisting the subpoenas, clear. The House managers want to say propriations. That is the definition of the bases for why those subpoenas were that they have an avenue for going to ‘‘pressure.’’ invalid. court; they are using that avenue for Now, Ukraine—the President’s law- When litigation was filed by one of going to court; and they actually told yers say—didn’t know that Trump was the subpoena recipients—that was Dr. the court in McGahn that once they withholding the security assistance Charles Kupperman, the Deputy Na- reached an impasse with the executive until it was public. Many witnesses tional Security Advisor—he went to branch, the courts were the only way have contested that, including the open the court and sought a declaratory to resolve the impasse. statement by Olena Zerkal, who was judgment, saying: The President has As I explained the other day, there then the Deputy Foreign Minister of told me I shouldn’t go. I have a sub- are mechanisms for dealing with these Ukraine, that they knew about the poena from the House saying I should disputes between the executive and President’s hold on security matters, go. Please, courts, tell me what my ob- Congress. First is an accommodations and in the end, everyone knew, it was ligations are. process. They didn’t do that. We of- public, and afterward, Ukraine did re- I believe that was filed around Octo- fered to do that in the White House lent and scheduled that testimony. ber 25. It was toward the end of Octo- Counsel’s October 8 letter. They didn’t Fourth, they said no witnesses, said ber. do accommodations. If they think they security was conditioned on the inves- Very shortly, within a few days, the can sue, they have to take that step be- tigations. Not so. There was Mulvaney, court had set an expedited briefing cause the Constitution, the courts have and we had other witnesses talking schedule and scheduled the hearing for made clear, requires incrementalism in about the shakedown for the security December 10. They were supposed to disputes between the executive and the assistance. But the important thing is, hear both preliminary motions to dis- legislative branch. you can get a witness who talked to miss and also the merits issue. So if they think that the courts can the President firsthand about what the So they were going to get a decision resolve that dispute, that is the next President thought he was doing. after a hearing on December 10 that step. They should do that and have Ultimately, of course, the funds—or would go to the merits of the issue, but that litigated, and then things can pro- at least some of them—were released, the House managers withdrew the sub- ceed on to a higher level of confronta- but the White House meeting that the poena. The House of Representatives tion. But to jump straight to impeach- President promised three different decided they wanted to moot out the ment, to the ultimate constitutional times still has not occurred, and we case so they wouldn’t get a decision. confrontation, doesn’t make sense. It is still don’t have the investigation of the So, no, the House has not pursued not the system that the Constitution Bidens. litigation to get any of these issues re- requires, and it is unprecedented in Getting caught doesn’t mitigate the solved. It has affirmatively avoided this case. Thank you. wrongdoing. The President is unrepent- getting into any litigation. That seems The CHIEF JUSTICE. Thank you, ant, and we fear he will do it again. to be at least in part based on—if you counsel. The independent Government Ac- look at the House Judiciary Committee The Senator from Michigan. countability Office concluded that the report—their assertion that under the Ms. STABENOW. Thank you, Mr. President violated Federal law when he sole power of impeachment assigned to Chief Justice. I send a question to the withheld that aid. That misconduct is the House, the House believes that the desk. still going on. All the aid has not yet Constitution assigns—I believe the The CHIEF JUSTICE. Senator STA- been released. exact words are that it gives the House BENOW asks the House managers: Finally, I would just like to say that the last word, something to that effect. Would the House Managers care to correct there has been some confusion, I think. I mentioned this the other day. This the record on any falsehoods or I am sure it is not intentional. But the is the new constitutional theory that mischaracterizations in the White House’s President surely does not need the per- because they have the sole power of im- opening arguments? mission of his staff about foreign pol- peachment, in their view, it is actually Ms. Manager LOFGREN. Mr. Chief icy. That information is offered to you the paramount power of impeachment Justice and Senators, thank you for as evidence of what he thought he was and that all other constitutionally that question. We believe that the doing. He did not appear to be pursuing based privileges or rights or immuni- President’s team has claimed basically a policy agenda. From all of the evi- ties or roles, even, of the other there were six facts that have not been dence, he appeared to be pursuing a branches—both the judiciary and the met and will not change and all six of corruption—a corruption of our elec- executive—fall away, and there is noth- those so-called facts are incorrect. tion that is upcoming; a high crime ing that can stand in the way of the

VerDate Sep 11 2014 23:51 Jan 29, 2020 Jkt 099060 PO 00000 Frm 00008 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.011 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 29, 2020 CONGRESSIONAL RECORD — SENATE S653 House’s power of impeachment. If they in which they are arguing, as I quoted The issue isn’t whether it is his first issue a subpoena, the executive has to earlier, that Congress has no right to term or his second. It isn’t whether the respond, and it can’t raise any con- come to the courts to force a witness election is a year away or 3 years stitutionally based separation of pow- to testify. So here we are 9 months away. The issue is, did he commit a ers concerns. If you do, that is obstruc- later in that litigation that they said high crime and misdemeanor? Is it a tion of the courts. The courts have no we are compelled under the Constitu- high crime and misdemeanor for a role. The House has the sole power of tion to bring, and they are saying in President of the United States to with- impeachment. court: You can’t bring this. And it is 9 hold hundreds of millions of dollars in That is a very dangerous construct months, and we still don’t have a deci- aid to an ally at war to get help, to for our Constitution. It suggests that sion. I think that tells you just where elicit foreign interference in our elec- once they flip the switch on to im- they are coming from. It all goes back tion? If you believe that it is, it doesn’t peachment, there is no check on their to the President’s directive to fight all matter what term it is, it doesn’t mat- power and what they want to do. That subpoenas, and they are. ter how far away the election is be- is not the way the Constitution is Nixon was going to be impeached for cause that President represents a structured. When there are interbranch far less obstruction than anything that threat to the integrity of our elections conflicts, the Constitution requires Donald Trump did. and, more than that, a threat to our that there be an accommodation proc- The argument: Well, if you impeach a national security. ess, that there be attempts to address President, you are overturning the re- As we have shown, by withholding the interests of both branches. sults of the last election and you are that aid—and I know the argument is, The House has taken the position— tearing up the ballots in the next elec- no harm, no foul—we withheld aid from and in other litigation—the McGahn tion. If that were the case, there would an ally at war. We sent a message to litigation—they are telling the courts be no impeachment clause in the Con- the Russians, when they learned of this that the courts are the only way to re- stitution because, by definition, if you hold, that we did not have Ukraine’s solve these issues. They brought that are impeaching a President, that Presi- back. We sent a message to the Rus- case in August. They already have a dent is in office and has won an elec- sians, as Zelensky was going into nego- decision from the district court. They tion. tiations with Putin to try to end that have an appeal in the DC Circuit. It Clearly, that is not what the Found- war, that Zelensky was operating from was argued on January 3. A decision ers had in mind. What they had in a position of weakness because there could come any day. That is pretty fast mind is, if the President commits high was a division between the President of for litigation. But in this impeach- crimes and misdemeanors, you must the United States and Ukraine. That is ment, they have decided that they remove him from office. It is not void- immediate damage. That is damage don’t want to do litigation. Again, it is ing the last election; it is protecting done every day. That damage continues because they had a timetable. One of the next election. Indeed, the impeach- to this day. the House managers admitted it on ment power was put in the Constitu- The damage the President does in this floor. They had to get the Presi- tion not as a punishment—that is what pushing out the Russian conspiracy dent impeached before the election. the criminal laws are for—but to pro- theories were identified during the They had no time for the courts, for tect the country. House proceedings—and you have heard anyone telling them what the rules Now, if you say you can’t impeach a it in the Senate—as Russian intel- were. They had to get it done by President before the next election, ligence propaganda. The danger the Christmas, and that is what they did. what you are really saying is you can President poses by taking Vladimir Then they waited around a month be- only impeach a President in their sec- Putin’s side over his own intelligence fore bringing it here. ond term. If that were going to be the agencies—that is a danger today. That I think that shows you what is really constitutional requirement, the Found- is a danger that continues every day he behind the claims of, oh, it is urgent, ers would have put in the Constitution: pushes out this Russian propaganda. then it is not urgent. It was urgent A President may commit whatever If the Framers meant impeachment when it was our timetable to get it high crimes and misdemeanors he only to apply in the second term, they done by Christmas. It is not so urgent wants as long as it is in the first term. would have said so. But that would when we can wait for a month because That is clearly not what any rational have made the Constitution a suicide we want to tell the Senate how to run Framer would have written, and, in- pact. That is not what it says, and that things. It is all a political charade. deed, they didn’t, and they didn’t for a is not how you should interpret it. That is part of the reason—a major reason. The Founders were concerned The CHIEF JUSTICE. Thank you, reason—that the Senate should reject that, in fact, the object of a President’s counsel. these Articles of Impeachment. corrupt scheme might be to cheat in Mr. PORTMAN. Mr. Chief Justice. The CHIEF JUSTICE. Thank you, the very form of accountability that The CHIEF JUSTICE. The Senator counsel. they have prescribed: the election. from Ohio. Mr. UDALL. Mr. Chief Justice. So counsel has continued to Mr. PORTMAN. I send a question to The CHIEF JUSTICE. The Senator mischaracterize what the managers the desk. from New Mexico. have said. We are not saying we had to The CHIEF JUSTICE. Senator Mr. UDALL. Thank you for the rec- hurry to impeach the President before PORTMAN’s question is directed to ognition, Mr. Chief Justice. I send a the election. We had to hurry because counsel for the President: question to the desk. the President was trying to cheat in Given that impeachment proceedings are The CHIEF JUSTICE. Senator that election. privileged in the Senate and largely prevent UDALL’s question is for the House man- The position of the President’s coun- other work from taking place while they are agers: sel is, well, yes, it is true that if a ongoing, please address the implications of Please address the President’s counsel’s ar- President is going to try to cheat an allowing the House to present an incomplete gument that House managers seek to over- election, by definition, that is prior to case to the Senate and request the Senate to turn the results of the 2016 election and that their reelection; by definition, that is seek testimony from additional witnesses. the decision to remove the President should going to be proximate to an election; Mr. Counsel PHILBIN. Thank you, be left to the voters in November. but, you know, let the voters decide, Mr. Chief Justice, Senators. I think Mr. Manager SCHIFF. Thank you for even though the object is to corrupt this is one of the most important the question. that vote of the people. That cannot be issues that this body faces, given these First, I just want to respond to some- what the Founders had in mind. calls to have witnesses, because the thing counsel just said—that 9 months One of the things I said at the very House managers tried to present it as is pretty fast for litigation in the opening of this proceeding is, yes, we if, oh, it is just a simple question; how courts. Sadly, I agree with that. Nine are to look to history; yes, we are to can you have a trial without witnesses? months is pretty fast in the McGahn try to define the intent of the Framers; But in real litigation, no one goes to case, and we still don’t have a decision but we are not to leave our common trial without doing discovery. No one yet. What is more, that is the very case sense at the door. goes to trial without having heard

VerDate Sep 11 2014 23:51 Jan 29, 2020 Jkt 099060 PO 00000 Frm 00009 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.012 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S654 CONGRESSIONAL RECORD — SENATE January 29, 2020 from the witnesses first. You don’t you make it that much easier—and we But to the extent that there are am- show up at trial and then start trying have said this on a couple of different biguities in your mind, this is a trial. A to call witnesses for the first time. points, both in terms of the standards trial involves witnesses. A trial in- The implications here in our con- for impeachable offenses but also in volves documents. A trial involves evi- stitutional structure, trying to run terms of the process that is used in the dence. That is not a new phenomenon things in such an upside-down way House. If you make it really way too for this distinguished body. The Sen- would be very grave for this body as an easy to impeach a President, then this ate, in its history, has had 15 different institution because, as the Senator’s Chamber is going to be dealing with impeachment trials. In every single question points out, it largely prevents that all the time. trial there were witnesses—every sin- this Chamber from getting other busi- As Minority Leader SCHUMER had gle trial. Why should this President be ness done as long as there is a trial pointed out at the time of the Clinton treated differently, held to a lower pending. impeachment—he was prophetic, as standard, at this moment of Presi- The idea that the House can do an in- White House counsel pointed out the dential accountability? complete job in trying to find out what other day—once you start down the In fact, in many of those trials, there witnesses there are, having them come path of partisan impeachments, they were witnesses who testified in the testify, trying to find out the facts— will be coming again and again and Senate who had not testified in the just rush something through and bring again. And if you make it easier, they House. That was the case most re- it here as an impeachment and then will come even more frequently, and cently in the Bill Clinton trial. It cer- start trying to call all the witnesses— this Chamber is going to be spending a tainly was the case in the trial of means that this body will end up tak- lot of time dealing with impeachment President Johnson. Thirty-seven out of ing over that investigatory task, and trials and cleaning up any incomplete, the 40 witnesses who testified in the all the regular business of this body half-baked procedures, rushed partisan Senate were new—37 out of 40. will be slowed down, hindered, pre- impeachments from the House if that Why can’t we do it in this instance, vented while that goes on. is the sort of system that is given the when you have such highly relevant And it is not a question of just one imprimatur here. witnesses like John Bolton, who had a witness. A lot of people talk right now That is a very important reason for direct conversation with President about John Bolton, but the President not accepting that procedure and not Trump, indicating that President would have the opportunity to call his trying to open things up now when Trump was withholding the aid because witnesses, just as a matter of funda- things haven’t been done properly in he wanted the phony investigations? mental fairness. There would be a long the House of Representatives. Counsel has said the greatest inven- list of witnesses if the body were to go Thank you. tion in the history of jurisprudence for in that direction. It would mean this The CHIEF JUSTICE. Thank you, ascertaining the truth has been the ve- would drag on for months and prevent counsel. hicle of cross-examination. Let’s call this Chamber from getting its business The Senator from Delaware. John Bolton. Let’s call Mick Mr. CARPER. Mr. Chief Justice, I done. Mulvaney. Let’s call other witnesses, send a question to the desk. There is a proper way to do things subject them to cross-examination, and The CHIEF JUSTICE. Senator CAR- and an upside-down way of doing present the truth to the American peo- PER’s question is for the House man- things. To have had the House not go ple. through a process that is thorough and agers: Some have claimed that subpoenaing wit- The CHIEF JUSTICE. Thank you. complete and to just rush things The Senator from Texas. through in a partisan and political nesses or documents would unnecessarily prolong this trial. Isn’t it true that deposi- Mr. CORNYN. Mr. Chief Justice, I manner and then dump it onto this tions of the three witnesses in the Clinton send a question to the desk. Chamber to clean everything up is a trial were completed in only one day each? The CHIEF JUSTICE. Senators COR- very dangerous precedent to be set. As And, isn’t it true that the Chief Justice, as NYN and GARDNER ask counsel for the I said the other day, whatever is ac- presiding officer in this trial, has the author- President: ity to resolve any claims of privilege or cepted in this case becomes the new What are the consequences to the Presi- other witness issues, without any delay? normal. If this Chamber puts its impri- dency, the President’s constitutional role as matur on this process, then that is the Mr. Manager JEFFRIES. Mr. Chief the head of the executive branch, and the ad- seal of approval for all time in the fu- Justice, the answer is yes. What is vice the President can expect from his senior ture. clear, based on the record that was advisers, if the Senate seeks to resolve If it becomes that easy for the House compiled by the House of Representa- claims of executive privilege for subpoenas of Representatives to impeach a Presi- tives, where up to five depositions per in this impeachment trial without any deter- dent of the United States—don’t at- week were completed, is that this can mination by an article III court? tempt to subpoena the witnesses, never be done in an expeditious fashion. Mr. Counsel PHILBIN. Mr. Chief Jus- mind litigation because it takes too It is important to note that the tice, I thank the Senators for the ques- long, but then leave it all to this record that exists before you right now tion. Chamber—and, as I said the other day: contains strong and uncontroverted The Supreme Court has recognized Remember, what do we think will hap- evidence that President Trump pres- that the confidentiality of communica- pen if some of these witnesses are sub- sured a foreign government to target tions with the President is essential— poenaed now that they never bothered an American citizen for political and keeping those communications con- to litigate about? Then there will be personal gain, as part of a scheme to fidential is essential for the proper the litigation now, most likely, and cheat in the 2020 election and solicit functioning of the government. then that will take time while this foreign interference. That is evidence In Nixon v. United States, the court Chamber is still stuck sitting as a from witnesses who came forward from explained that this privilege is ground- Court of Impeachment. the Trump administration, including ed in the separation of powers and es- That is not the way to do things, and individuals like Ambassador Bill Tay- sential for the functioning of the exec- it would forever change the relation- lor, a West Point graduate and a Viet- utive for this reason: In order to re- ship between the House of Representa- nam war hero; including individuals ceive candid advice, the President has tives and the Senate in terms of the like Ambassador Sondland, who gave $1 to be able to be sure that those who are way impeachments operate. million to President Trump’s inaugura- speaking with him have the confidence So I think it is vitally important for tion; including respected national secu- that what they say is not going to be this Chamber to consider what it really rity professionals like LTC Alexander revealed, that their advice can remain means to start having this Chamber do Vindman, as well as Dr. Fiona Hill—17 confidential. If it is not confidential, all that investigatory work, how this different witnesses, Trump administra- they would temper what they are say- Chamber would be paralyzed by that. tion employees, troubled by the cor- ing; they wouldn’t be candid with the And is that really the precedent? Is rupt conduct that took place, as al- President; and the President, then, that the way this Chamber wants ev- leged and proven by the House of Rep- would not be able to get the best ad- erything to operate in the future? Once resentatives. vice.

VerDate Sep 11 2014 01:36 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00010 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.014 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 29, 2020 CONGRESSIONAL RECORD — SENATE S655 It is the same concern that underpins precedents start to be set—if one Presi- debate about policy, a debate about the deliberative process aspect of exec- dent says: Well, I will not insist on the corruption, a debate about burden- utive privilege. Even if it is not a com- privilege then; I will let people inter- sharing, then, let’s have the documents munication directly with the Presi- view this person; I will not insist on that would show that. Let’s hear from dent, if it is the deliberative process the immunity—that sets precedent. the witnesses that would show that. within the executive branch, people Then the next time, when it is impor- The documents and the witnesses that have to be able, before coming up with tant to preserve the privilege, the we have forwarded and we have talked a decision, to discuss alternatives, to precedent is raised, and the privilege about show the exact opposite. probe what other ways might work to has been weakened—and is forever The American people in this Chamber address the problem, and to discuss weakened—and that damages the func- deserve to have a fair trial. The Presi- them candidly and openly, not with the tioning of government. dent deserves to have a fair trial. In feeling that the first thing they say is So this is a very serious issue to con- fact, if he is arguing that there is evi- going to be on the front page of the sider. It is important. The Supreme dence, that there was a policy debate, Washington Post the next day, because Court has made it clear for the proper then, I think everybody would love to if you don’t have the confidence that functioning of the executive branch, see those documents, would love to see what you are saying is going to be kept for the proper functioning of our gov- the witnesses and hear from them di- confidential, you will not be candid, ernment. And there would be grave rectly about what exactly was being you will not give your best advice, and issues raised attempting to have a Na- debated. that damages decision-making. It is tional Security Advisor to the Presi- The CHIEF JUSTICE. Thank you, bad for the government, and it is bad dent come under subpoena to testify. Mr. Manager. for the people of the United States be- That would all have to be dealt with, The Senator from South Carolina. cause it means the government and the and that would take some time before Mr. GRAHAM. I send a question to executive branch can’t function effi- things would continue. the desk from myself and Senator ciently. Thank you. CRUZ. So there is a critical need for the ex- The CHIEF JUSTICE. Thank you, The CHIEF JUSTICE. Senator GRA- ecutive to be able to have these privi- counsel. HAM and Senator CRUZ pose this ques- leges and to protect them, and that is The Senator from Hawaii. tion for the House managers: why the Supreme Court recognized Mr. SCHATZ. Mr. Chief Justice, I In Mr. SCHIFF’s hypothetical, if President that in Nixon v. United States and send a question to the desk. Obama had evidence that MITT ROMNEY’s son pointed out that there has to be some The CHIEF JUSTICE. The question was being paid $1 million per year by a cor- very high showing of need from an- from Senator SCHATZ is directed to the rupt Russian company—and MITT ROMNEY other branch of government if there is House managers, and the question also had acted to benefit that company—would Obama have authority to ask that that po- going to be any breach of that privi- is from Senator FEINSTEIN: tential corruption be investigated? lege. If the President were acting in the interest That is why there is an accommoda- of national security, as he alleges, would Mr. Manager SCHIFF. First of all, tions process. The courts have said there be documentary evidence or testimony the hypothetical is a bit off because it that, when the Congress and the legis- to substantiate his claim? If yes, has any presumes in that hypothetical that lature seek information from the exec- evidence like that been presented by the President Obama was acting corruptly utive and the executive has confiden- President’s counsel? or there was evidence he was acting tiality interests, both branches are Mr. Manager CROW. Thank you, Mr. corruptly with respect to his son. But, under an obligation to try to come to Chief Justice. Thank you, Senators, for nonetheless, let’s take your hypo- some accommodation to address the in- the question. thetical on its terms. terests of both branches. But it is not The answer is yes. There are well-es- Would it have been impeachable if a situation of simply that the Congress tablished processes, mechanisms, and Barack Obama had tried to get is supreme and can demand informa- agencies in place to pursue valid and Medvedev to do an investigation of tion from the executive and the execu- legitimate national security interests MITT ROMNEY, whether it was justified tive must present everything. The of the United States—like the National or unjustified? The reality is, for a courts have made that clear, because Security Council; like the National Se- President to withhold military aid that would be damaging to the func- curity Advisor, as in Ambassador John from an ally—or, in the hypothetical, tioning of government. Bolton; and many other folks within to withhold it to benefit an adversary— So here, in this case, there are vital the State Department and the Depart- to target their political opponent is interests at stake. And one of the po- ment of Defense. And as we have well wrong and corrupt—period, end of tential witnesses that the House man- established over the last week, none of story. agers have raised again and again is those folks, none of those agencies, If you allow a President to ration- John Bolton. John Bolton was a Na- would have been involved in having alize that conduct, rationalize jeopard- tional Security Advisor to the Presi- that deliberation, reviewing that evi- izing the Nation’s security to benefit dent. He has all of the Nation’s secrets dence, having that discussion, or incor- himself because he believes that his op- from the time that he was the National porated into any type of interagency ponent should be investigated by a for- Security Advisor, and that is precisely review process during the vast major- eign power, that is impeachable. the area, the field, in which the Su- ity of the time that we are talking If you have a legitimate reason to preme Court suggested, in Nixon v. about here. think that any U.S. person has com- United States, there might be some- From the time of the President’s call mitted an offense, there are legitimate thing approaching an absolute privi- on July 25 to the time the hold was ways to have an investigation con- lege of confidentiality in communica- lifted, those individuals, those agencies ducted. There are legitimate ways to tions with the President: the fields of were in the dark. They didn’t know have the Justice Department conduct national security and foreign affairs. what was happening, and, more so, not an investigation. That is the crown jewel of executive only were they in the dark, but the I would suggest to you that for a privilege. President violated the law by violating President to turn to his Justice De- So to suggest that the National Secu- the Impoundment Control Act to exe- partment and say, ‘‘I want you to in- rity Advisor—well, we will just sub- cute his scheme. None of that suggests vestigate my political rival,’’ taints poena him, and he will come in; that a valid, legitimate policy objective. whatever investigation they do. Presi- will be easy; there will not be any prob- More so, the President himself and dents should not be in the business of lem—that is not the way it would work his counsel are bringing at issue the asking even their own Justice Depart- because there is a vital constitutional question of documents and witnesses. If ment to investigate their rivals. privilege at stake there, and it is im- over and over again, as we have heard The Justice Department ought to portant for the institution of the Office in the last few days, the President was have some independence from the po- of the Presidency, for every President, simply pursuing a valid, legitimate litical desires of the President, and one to protect that privilege, because once policy objective, if this was a specific of the deeply troubling circumstances

VerDate Sep 11 2014 23:31 Feb 11, 2020 Jkt 099060 PO 00000 Frm 00011 Fmt 4624 Sfmt 0634 E:\RECORD20\JANUARY\S29JA0.REC S29JA0 sradovich on DSKJLST7X2PROD with CONG-REC-ONLINE S656 CONGRESSIONAL RECORD — SENATE January 29, 2020 of the current Presidency is you do criminal code or is a breach of public trust basis for impeachment. That is not have a President of the United States sufficient? Please explain. abuse of Presidential powers. It might speaking quite openly, urging his Jus- Ms. Manager LOFGREN. The Fram- be a crime. And yet, you could have ac- tice Department to investigate his per- ers were very clear that abuse of power tivities that are so dangerous to our ceived enemies. is an impeachable offense. In explain- Constitution, that are not a crime, That should not take place either, ing why the Constitution must allow that would be charged as an impeach- but under no circumstances do you go impeachment, Edmund Randolph able offense because they are an abuse outside of your own legitimate law en- warned that ‘‘the Executive will have of power. That is what the Framers forcement process to ask a foreign great opportunities of abusing his worried about. That is why they put power to investigate your rival, wheth- power.’’ the impeachment clause in the Con- er you think there is cause or you don’t Alexander Hamilton described ‘‘high stitution, and, frankly, they opined think there is cause, and you certainly crimes and misdemeanors’’ as ‘‘offenses that, because of the impeachment don’t invite that foreign power to try which proceed from the . . . abuse or clause, no Executive would dare exceed to influence an election to your ben- violation of some public trust.’’ their powers. Regrettably, that pre- efit. The Framers also described what it diction did not prove true, which is It is remarkable to me that we even meant. It was impeachable for a Presi- why we are here today with President have to have this conversation. Our dent to abuse his pardon power to shel- Trump having abused his broad powers own FBI Director has made it abun- ter people he was connected with in a to the detriment of our national inter- dantly clear—and it shouldn’t require suspicious manner. Future Supreme est for a corrupt purpose, his own per- an FBI Director to say this—that if we Court Justice James Iredell said the sonal interests. were approached with an offer of for- President would be liable to impeach- Thank you. eign help, we should turn it down. We ment if he acted from some corrupt The CHIEF JUSTICE. Thank you, should, of course, certainly not solicit motive or other or if he was willfully counsel. a foreign country to intervene in our abusing his trust. Senator. election. And whether we think there As was later stated in a treatise sum- Mr. ROUNDS. Mr. Chief Justice, I is grounds or we don’t, the idea that we marizing centuries of common law, send a question to the desk on behalf of would hold our own country’s security abuse of power occurs if a public offi- myself and Senator MURKOWSKI. hostage by withholding aid to a nation cer, entrusted with definite powers to The CHIEF JUSTICE. Thank you, at war to either damage our ally or be exercised for the benefit of the com- Senator. help our adversary because they will munity, wickedly abuses or fraudu- The CHIEF JUSTICE. Senators conduct an investigation into our oppo- lently exceeds them. ROUNDS and MURKOWSKI ask counsel for nent, I can’t imagine any circumstance So when the Framers said this—that the President: where that is justified, and I can’t abuse of power was impeachable—it Describe in further detail your contention imagine any circumstance where we was not just an empty, meaningless that all subpoenas issued prior to the pas- would want to say the President of the statement. Remember, the Founders sage of H. Res. 660 are an exercise of invalid United States can target his rival, can had been participating with over- subpoena authority by the House commit- solicit, elicit foreign help in an elec- throwing the British Government, a tees. tion, can help him cheat and that is King who was not accountable. Mr. Counsel PHILBIN. Mr. Chief Jus- OK, because that will dramatically They incorporated the impeachment tice. lower the bar for what we have a right power into the Constitution late, actu- Thank you, Senators, for that ques- to expect in the President of the ally, in the drafting of the Constitu- tion. United States; and that is, they are tion. They knew they were giving the As I explained the other day, this acting in our interests. President many powers, and they speci- contention is based on a principle that I would say it is wrong for the Presi- fied, if he abused them, that those pow- has been laid out in several Supreme dent of the United States to be asking ers could be taken away. Court cases explaining that the Con- for political prosecutions by his own Now, the prior articles that the Con- stitution assigns powers to each House Justice Department. I would say it is gress has had on impeachment did not of the legislative branch: to the House wrong for the President of the United include specific crimes. President of Representatives or to the Senate. States to ask a foreign power to engage Nixon was charged with abusing his And in particular, the language of the in an investigation of his political power, targeting political opponents, Constitution is clear in article I that rival, but, particularly, where, as we engaging in a coverup. the sole power of impeachment is as- have shown here, there is no merit to There was conduct specified. Some of signed to the House—as to the House of that investigation is even more egre- it was clearly criminal. Some of it was Representatives as a body. It is not as- gious. You know there is no merit to it not. But it was all impeachable because signed to any committee, to a sub- because he didn’t even want the inves- it was corrupt, and it was abusing his committee, or to any particular Mem- tigation. power. ber of the House. The more accurate parallel, Senator, In the House Judiciary Committee, And in cases such as Rumely v. The would be if Barack Obama said: I don’t we had witnesses called by both Repub- United States and the United States v. even need you, Russia, to do the inves- licans and Democrats. The Republican- Watkins, the Court has been called— tigation; I just want you to announce invited constitutional law expert Jona- there are disputes about subpoenas. it—because that portrays the fact than Turley testified unequivocally They are not specifically in the im- there was no legitimate basis, because that it is possible to establish a case peachment context, but they establish the President didn’t even need the in- for impeachment based on a non- the general rule, a principle, that vestigation done. He just wanted it an- criminal allegation of abuse of power. whenever a committee of either body nounced. There is no legitimate expla- Every Presidential impeachment, in- of Congress issues a subpoena to some- nation for that except he wanted their cluding this one, has included conduct one and that person resists the sub- help in cheating the next election. that violated the law, but each Presi- poena, the courts will examine what The CHIEF JUSTICE. Thank you, dential impeachment has included the was the authority of that committee or Mr. Manager. charges directly under the Constitu- subcommittee to issue that subpoena. The Senator from Michigan. tion. It has to be traced back to some au- Mr. PETERS. Chief Justice, I send a It is important to note that a specific thorizing rule or resolution from the question to the desk. criminal law violation was not in the House of Representatives itself, for ex- The CHIEF JUSTICE. The question is minds of the Founders, and it wouldn’t ample, in a House subcommittee. And from Senator PETERS and is for the make any sense today. You could have the courts will examine—the Supreme House managers. a criminal law violation, you could de- Court has made clear that that is the Does the phrase ‘‘or other high Crimes and face a post office box. That would be a charter of the committee’s authority. Misdemeanors’’ in Article II, Section 4 of the violation of Federal law. We would It gets its authority solely from an ac- Constitution require a violation of the U.S. laugh at the idea that that would be a tion by the House itself. That requires

VerDate Sep 11 2014 01:36 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00012 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.017 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 29, 2020 CONGRESSIONAL RECORD — SENATE S657 a vote of the House, either to establish OMB, I think the State Department— wasn’t true at the time of the Watkins the committee by resolution or to es- and in very specific terms, they set out case; it wasn’t true 15 years ago; but it tablish by rule the standing authority this rationale. That is the basis on is true now. of that committee. And if the com- which those subpoenas were invalid, Second, the House power is the sole mittee cannot trace its authority to a and they were properly resisted by the power of impeachment and the manner rule or a resolution from the House, administration. of its exercise may not be challenged then its subpoena is invalid. Thank you. from outside. Whether the President The Supreme Court made clear in The CHIEF JUSTICE. Thank you, should be convicted upon our accusa- those cases those subpoenas are null counsel. tion is a question for the Senate, but and void because they are ultra vires; The Senator from Pennsylvania. how we reached our accusation is a they are beyond the power of the com- Mr. CASEY. Mr. Chief Justice, I send matter solely for the House. mittee to issue. They can’t be enforced. a question to the desk. Thirdly, they talked about executive Our point here is very simple. There is The CHIEF JUSTICE. Thank you. privilege, and they pointed to the no standing rule in the House that pro- Senator CASEY’s question is directed Nixon case that established executive vides the committees that were issuing to the House managers: privilege; that the President has a subpoenas here, under the leadership of In Federalist 65, Alexander Hamilton right to private, candid advice and, writes that the subjects of impeachment are Manager SCHIFF, the authority to use therefore, executive privilege is estab- ‘‘those offenses which proceed from the mis- the impeachment power to issue sub- lished. The same case says that execu- conduct of public men, or, in other words, tive privilege cannot be used to hide poenas. Rule 10 of the House defines from the abuse or violation of some public the legislative jurisdiction of commit- trust.’’ Could you speak broadly to the du- wrongdoing and, in fact, President tees. It doesn’t mention the word ‘‘im- ties of being a public servant and how you Nixon was ordered in that case to turn peachment’’ even once. So no com- believe the President’s actions have violated over all his material. mittee under rule 10 was given the au- this trust? Thirdly, there is a doctrine of waiver. thority to issue subpoenas for impeach- Mr. Manager NADLER. Mr. Chief You cannot use executive privilege or ment purposes. Justice, Members of the Senate. any other privilege if you waive it. The This has always been the case in President Trump used the powers of moment President Trump said that every Presidential impeachment in the his office to solicit a foreign nation to John Bolton was not telling the truth history of the Nation. There has always interfere in our elections for his own when he said that the President told been a resolution from the House, first, benefit, and then he actively ob- him of the improper quid pro quo, he to authorize a committee to use the structed Congress in his attempts to waived any executive privilege that power of impeachment before it in- investigate his abuses of power. These might have existed. He cannot charac- tended to issue compulsory process. So actions are clearly impeachable. The terize a conversation and put it into in this case, there was no resolution key purpose of the impeachment clause the public domain and then claim exec- from the House. The authority, the is to control abuses of power by public utive privilege against it. The Presi- sole power of impeachment, remained officials; that is to say, conduct that dent, by the way, never claimed execu- with the House of Representatives violates the public trust. tive privilege ever. He has claimed, in- itself. And Speaker PELOSI, by herself, Since the founding of the Republic, stead, absolute immunity—a ridiculous did not have authority merely by talk- all impeachments have been based on doctrine that the President has abso- ing to a group of reporters on Sep- accusations of conduct that violates lute immunity from any questioning tember 24, to give the powers of the the public trust. When the Framers by the Congress or by anybody else. It House to any particular committee to wrote the phrase ‘‘high Crimes and is a claim rejected by every court that start issuing subpoenas. So the sub- Misdemeanors,’’ they intended to cap- has ever considered it. poenas that were issued were invalid ture the conduct of public officials, Finally, the difference from this when they were issued. like President Trump, who showed no President and any other President And then 5 weeks later, on October respect for their oath of office. Presi- claiming privilege of any sort is that 31, when the House finally adopted H. dent Trump ignored the law and the this President told us in advance: I will Res. 660, that authorized from that Constitution in order to gain a polit- defy all subpoenas, whatever their na- point—purported to authorize from ical favor. The Constitution and his ture. I will make sure that the Con- that point the issuance of subpoenas. oath of office prohibited him from gress gets no information. In other Nothing in that resolution addressed using his official favor to corruptly words: I am absolute. The Congress the subpoenas that had already been benefit himself rather than the Amer- cannot question what I do because I issued. It didn’t even attempt or pur- ican people. That is exactly what the will defy all subpoenas. I will make port to say the ones that have already President did, illegally withholding sure they get no information, no mat- been issued, we are going to try to military aid and a White House meet- ter what their rights, no matter what retroactively give authority to that. It ing until the President of Ukraine com- their situation. is a separate question about whether mitted to announcing an investigation That is the subject of our article II of that could have been done legally. of President Trump’s opponent. the impeachment because that is a They didn’t even attempt to do it. In the words of one constitutional claim of absolute monarchical power. This is all explained in the opinion scholar: ‘‘If what we’re talking about is The CHIEF JUSTICE. Thank you, from the Office of Legal Counsel, which not impeachable, then nothing is im- Mr. Manager. Mr. MCCONNELL. Mr. Chief Justice. is in our trial memorandum attached peachable.’’ The CHIEF JUSTICE. The majority as appendix C. It is a very detailed and This is precisely the misconduct that leader is recognized. thorough opinion; it is 37 pages of legal the Framers created the Constitution, Mr. MCCONNELL. I want to suggest reasoning, but it explains all of this, including impeachment, to protect that after two more questions on each the basic principle that applies, gen- against. side—I have been corrected, as I fre- I want to add something in reference erally, and the history that it has al- quently am—one more question on to some of the comments that were ways been done this way. There has al- each side, we take a 15-minute break. ways, in every Presidential impeach- made by some of the President’s coun- The CHIEF JUSTICE. Thank you. ment, been an authorizing resolution sel a few minutes ago. They talk about The Senator from Kansas. from the House. And the fact that the subpoena power, about the failure Mr. ROBERTS. I send a question to there was none here—so there was no of the House to act properly in the sub- the House counsel for a question. authority for those subpoenas—that poena power because they said the The CHIEF JUSTICE. Thank you. means that 23 subpoenas that were House did not delegate by rule—have a Senator ROBERTS asks: issued were invalid. resolution authorizing the committees Would you please respond to the argu- And this was explained, as I pointed to offer subpoena power. They appar- ments or assertions the House managers out the other day, in letters from the ently haven’t read the fact that the made in response to the previous questions? administration to the committees—a House has generally delegated all sub- This is directed to the counsel for the letter from the White House, from poena power to the committees. It President.

VerDate Sep 11 2014 06:38 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00013 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.019 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S658 CONGRESSIONAL RECORD — SENATE January 29, 2020 Mr. Counsel SEKULOW. Mr. Chief James Comey said was unverified and aren’t valid before the House resolu- Justice, Members of the Senate. I want salacious. Yet it was the basis upon tion, and then with respect to sub- to respond to a couple. which the Department of Justice and poenas issued after the House resolu- First, with regard to the question or the FBI obtained FISA warrants. This tion, like to Mulvaney, they are no the issues that have been raised as it was in 2016, against a rival campaign. good either. You have the argument relates to witnesses, it is important to So we don’t have to do hypotheticals. made that, we have absolute immu- note that in the Clinton impeachment It is precisely the situation. nity, and the court that addresses this proceeding, the witnesses who actually To take it an additional step, this says: No, you don’t; you are not a King. gave deposition testimony were wit- idea that a witness will be called—if That argument may have been thought nesses who had either been interviewed this body decides to go to witnesses— of with favor by various Presidents by deposition in the House proceedings, would be a violation of fundamental over history, but it has never been sup- grand jury proceedings, and then, more fairness. Of course, if witnesses are ported by any court in the land, and specifically, was Sid Blumenthal, called by the House managers through there is no constitutional support for Vernon Jordan, and Monica Lewinsky. that motion, the President’s counsel that either. New witnesses were not being called. would have the opportunity to call wit- There are documents that are being That is because the House, in their nesses as well, which we would. released right now, as we sit here, and process, moved forward with a full in- Thank you, Mr. Chief Justice. it is a mystery to the country, and it is vestigation. That did not happen here. The CHIEF JUSTICE. Thank you, a mystery to some of us. How are pri- There was another statement that counsel. vate litigants able to get documents was raised by Mr. Chairman SCHIFF, The Senator from California. through the Freedom of Information Manager SCHIFF, regarding the Chief Ms. HARRIS. Mr. Chief Justice, I Act that the administration has with- Justice could make the determination send a question to the desk. held from Congress? If they were oper- on executive privilege. And again, with The CHIEF JUSTICE. The question ating in any good faith, would that be no disrespect to the Chief Justice, the from Senator HARRIS is for the House the case? Of course, the answer is no. idea that the Presiding Officer of this managers: What we have instead is, we are going proceeding could determine a waiver or President Nixon said, ‘‘When the president to claim absolute immunity, although an applicability of executive privilege does it that means that it is not illegal.’’ Be- the court says that doesn’t exist. would be quite a step. There is no his- fore he was elected, President Trump said, They said: You know, the House torical precedent. There is no historic ‘‘When you’re a star, they let you do it. You withdrew the subpoena on Dr. precedent that would justify it. can do anything.’’ After he was elected, Kupperman. Why would they withdraw But there is something else. If we get President Trump said that Article II of the the subpoena on Dr. Kupperman when to the point of witnesses, then, for in- Constitution gives him ‘‘the right to do whatever [he] want[s] as president.’’ These he was only threatening to tie you up stance, if one of the witnesses to be statements suggest that each of them be- endlessly in court? called by the President’s lawyers was lieved that the president is above the law— Now, we suggested to counsel for Dr. ADAM SCHIFF in the role, basically, of a belief reflected in the improper actions Kupperman that, if they had a good- Ken Starr—Ken Starr presented the re- that both presidents took to affect their re- faith concern about testifying—if this port and made the presentation before election campaigns. If the Senate fails to were really good faith and it were not the House of Representatives. He had hold the President accountable for mis- just a strategy to delay; if it were not about 12 hours of questioning, I believe, conduct, how would that undermine the in- just part of the President’s wholesale is what Judge Starr had. If Representa- tegrity of our system of justice? ‘‘fight all subpoenas’’—they didn’t need tive SCHIFF was called as a witness, Mr. Manager SCHIFF. Mr. Chief Jus- to file separate litigation because there would, in fact, then issues of speech tice, Senators, I think this is exactly was actually a case already in court in- and debate clause privilege be litigated the fear. I think, if you look at the pat- volving Don McGahn on that very sub- and decided by the Presiding Officer or tern in this President’s conduct and his ject that was ripe for a decision. In- would it go to court or maybe they words, what you see is a President who deed, the decision would come out very would waive it, but those would be the identifies the state as being himself. shortly thereafter. We said: Let’s just kind of issues that would be very, very When the President talks about the agree to be bound by what the McGahn significant. people who report his wrongdoing—for court decides. Senator GRAHAM presented a hypo- example, when he describes a whistle- They didn’t want to do that, and it thetical, which Manager SCHIFF said, blower as a traitor or a spy—the only became obvious once the McGahn court well, that is not really the hypo- way you can conceive of someone who decision came out because the McGahn thetical, but hypotheticals are actually reports wrongdoing as committing a court said: There is no absolute immu- that; they are hypotheticals. To use crime against the country is if you be- nity. You must testify. Manager SCHIFF’s words, he talked lieve that you are synonymous with By the way, if you think people in- about how it would be wrong if FBI or the country, that any report of wrong- volved in national security—i.e. Dr. the Department of Justice was starting doing against the President—the per- Kupperman and John Bolton, if you are a political investigation of someone’s son the President—is a treasonous act. listening—are somehow absolutely im- political opponent. It is the kind of mentality that says mune, they are not. I am thinking to myself, but isn’t that under article II, I can do whatever So did Dr. Kupperman say: ‘‘Now I that exactly what happened? The De- I want, that I am allowed to fight all have the comfort I need because the partment of Justice and the FBI en- subpoenas. court has weighed in’’? The answer is, gaged in an investigation of the can- Counsel has given a variety of expla- of course not. didate for President of the United nations for the fighting of all sub- Counsel says: Well, we might have States when they started their oper- poenas. They might have had a plau- gotten a quick judgment in ation called Crossfire Hurricane. sible argument if the administration Kupperman. He said it would be targeting a rival. had given hundreds of documents but Yes—in the lower court. That is what that did. He said it would reserved some and made a claim of Do any of you believe for a single be calling for foreign assistance in privilege or if the administration has minute that they wouldn’t appeal to that. In the particular facts of Cross- said: We will allow these witnesses to the court of appeals and to the Su- fire Hurricane, it has been well estab- testify, but with these witnesses, with preme Court and that if the Supreme lished now that, in fact, Fusion GPS these particular questions, we want to Court struck down the absolute immu- utilized the services of a former foreign assert the privilege. nity argument, they wouldn’t be back intelligence officer, Christopher Steele, Of course, that is not what was done in the district court, saying: ‘‘OK. He is to put together a dossier and that here. What we have, instead, is a shift- not asking for absolute immunity any- Christopher Steele relied on his net- ing series of rationales, of expla- more, but we are going to claim execu- work of resources around the globe, in- nations, and duplicitous arguments— tive privilege over specific conversa- cluding Russia and other places, to put some made in court and some made tions that go to the President’s wrong- together this dossier, which then here—the argument that the subpoenas doing’’?

VerDate Sep 11 2014 23:34 Feb 11, 2020 Jkt 099060 PO 00000 Frm 00014 Fmt 4624 Sfmt 0634 E:\RECORD20\JANUARY\S29JA0.REC S29JA0 sradovich on DSKJLST7X2PROD with CONG-REC-ONLINE January 29, 2020 CONGRESSIONAL RECORD — SENATE S659 That is the sign of a President who under the Trump administration, in And just the other day, another arti- believes that he is above the law, that part, largely, because of that lethal cle came out—I believe it was from, at article II empowers him to do anything aid. the time, the Foreign Minister he wants. Ambassador Yovanovitch, Ambas- Danylyuk—explaining that when the I will say this: If you accept that ar- sador Volker, others also testified that POLITICO article was published on Au- gument—if you accept the argument U.S. policy providing that aid was gust 28, there was panic in Kyiv be- that the President of the United States greater support for Ukraine than was cause it was the first time they real- can tell you to pound sound when you provided in the Obama administration, ized there was any pause on the aid. So try to investigate his wrongdoing— particularly the provision of Javelin that was not something that was pro- there will be no force behind any Sen- anti-tank missiles, which they ex- viding any signal either to the Ukrain- ate subpoena in the future. plained were lethal and would kill Rus- ians or the Russians because it wasn’t The ‘‘fighting all subpoenas’’ started sian tanks and change the calculus for known. It was 2 weeks later, after it before the impeachment. If you allow a aggression from the Russians in the became public, that the aid was re- President to obstruct Congress so com- Donbas region in the eastern portion of leased. pletely in a way that Nixon could never Ukraine where that conflict was still The testimony in the record is that have contemplated, nor would the Con- ongoing. the pause was not significant; it was gress of that day have allowed, you will In terms of the pause, the temporary future money, not for current pur- eviscerate your own oversight capa- pause on aid here, the testimony in the chases; and it was released before the bility. record—put aside what the House man- end of the fiscal year. Thank you. agers have said about their speculation They point out that some of it wasn’t The CHIEF JUSTICE. The majority and they know what it is like to be de- out the door by the end of the fiscal leader is recognized. nied aid—the testimony in the record year. That happens every year. There RECESS is that this temporary pause was not is some percentage that doesn’t make it out the door by the end of the year. Mr. MCCONNELL. Mr. Chief Justice, significant. Again, it is 5-year money. It is not I ask unanimous consent that the Sen- And as for Volker, Ambassador like it is all going to be spent in the ate stand in recess until 4 p.m. Volker testified that the brief pause on next 30, 60, 90 days anyway. So the fact There being no objection, the Senate, releasing the aid was ‘‘not significant.’’ And Under Secretary of State for Po- that there was a little fix—Congress at 3:38 p.m., recessed until 4:06 p.m. and litical Affairs David Hale explained passed a fix to allow that $35 million to reassembled when called to order by that this is ‘‘future assistance, not to be spent; something similar happens the CHIEF JUSTICE. keep the Army going now.’’ for some amount almost every year; The CHIEF JUSTICE. The Senator So, in other words, this isn’t money and it was not affecting current pur- from Oklahoma. that had to flow every month in order chases—it wasn’t jeopardizing any- Mr. INHOFE. Mr. Chief Justice, I to fund current purchases or something thing at the frontlines. There is no evi- have a question for the President’s like that. It was money—it is 5-year dence about that in the record. The counsel, and it is cosponsored by Sen- money. Once it is obligated, it is there evidence is to the contrary. ators ROUNDS, WICKER, ERNST, BLACK- for 5 years, and it usually takes quite a Thank you. BURN, TILLIS, CRAMER, COTTON, SUL- bit of time to spend all of it. The CHIEF JUSTICE. Thank you, LIVAN, MCSALLY, all members of the So the idea, somehow, that during counsel. Senate Armed Services Committee. the couple of months in July, August, The Senator from Maine is recog- The CHIEF JUSTICE. The Senators and up until September 11—55 or 48 nized. ask the following question of the coun- days, depending upon how you count Mr. KING. Mr. Chief Justice, I have a sel for the President: it—that this was somehow denying question for both sets of counsel, which Mr. Cipollone, as Members of the Senate critical assistance to the Ukrainians I send to the desk. Armed Committee, we listened intently on the frontlines right then is simply The CHIEF JUSTICE. The question when Manager CROW was defending one of not true. from Senator KING is for both counsel Senator SCHUMER’s amendments to the orga- for the President and House managers: nizing resolution last week as he explained And now the House managers have President Trump’s former chief of staff, how he had firsthand experience being denied tried to pivot away from that because General John Kelly has reportedly said, ‘‘I military aid when he needed it during his they know it is not true. They say: No, believe John Bolton’’ and suggests Bolton service. As you know, David Hale, Under it was a signal to the Russians. It was should testify, saying, ‘‘If there are people Secretary of State for Political Affairs, con- a signal of lack of support that the that could contribute to this, either inno- firmed that the lethal aid provided to Russians would pick up on. But here cence or guilt, I think they should be heard.’’ Ukraine last year was future aid. Which again, it is critical, even the Ukrain- Do you agree with General Kelly that they would you say had the greater military im- should be heard? pact: President Trump’s temporary pause of ians didn’t know that the aid had been 48 days on future aid that will now be deliv- paused, and part of the reason was they I think, counsel for the President, it ered to Ukraine, or President Obama’s stead- never brought it up in any conversa- is your turn to go first. fast refusal to provide lethal aid to Ukraine tions with representatives of the U.S. Mr. Counsel SEKULOW. Thank you, for 3 years—more than 1,000 days—while Government. And as Ambassador Mr. Chief Justice, Members of the Sen- Ukraine attempted to hold back Russia’s in- Volker testified, representatives of the ate, this was a bit of a topic that I dis- vasion and preserve its sovereignty? U.S. Government didn’t bring it up to cussed yesterday, and that was the in- Mr. Counsel PHILBIN. Mr. Chief Jus- them because they didn’t want anyone formation that came out of the New tice. Thank you, Senators for that to know; they didn’t want to put out York Times piece about what is pur- question. any signal that might be perceived by portedly in a book by Ambassador I think it was far more serious and the Russians or by the Ukrainians as Bolton. far more jeopardy for the Ukrainians any sign of lack of support. It was kept Now, as I said, the idea that a manu- the decision of the Obama administra- internal to the U.S. Government. script is not in the book—there is not tion to not use the authority that was They pointed to some emails that a quote from the manuscript in the given by Congress—that many of you someone at the Department of Defense book; this is a perception of what the all, many Members of the House of or Department of State, Laura Cooper, statement might be. There have been Representatives voted for—giving the received from unnamed Embassy staff- very forceful statements, not just from U.S. Government the authority to pro- ers suggesting that there was a ques- the President but from the Attorney vide lethal aid to the Ukrainians, and tion about the aid, but her testimony General. The Department of Justice the Obama administration decided not was that she couldn’t even remember stated that while the Department of to provide that aid. what the question really was, and she Justice has not reviewed Mr. Bolton’s And multiple witnesses who were didn’t want to speculate. manuscript, the New York Times ac- called in the House by the House There is not evidence that any deci- count of this conversation grossly Democrats testified that United States sion makers in the Ukraine Govern- mischaracterizes what Attorney Gen- policy toward Ukraine got stronger ment knew about the pause. eral Barr and Mr. Bolton discussed. -

VerDate Sep 11 2014 05:38 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00015 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.021 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S660 CONGRESSIONAL RECORD — SENATE January 29, 2020 There was no discussion of his getting Mick Mulvaney, another relevant wit- We don’t know what Manager any personal favors or undue influence ness with firsthand information. If he SCHIFF’s staff’s contact with the whis- for the investigation, nor did Attorney is willing to say publicly, not under tleblower have been and what connec- General Barr state that the President’s oath, that Bolton is wrong, let him tions there are there. It is something conversations with foreign leaders were come and say that under oath. Yes, we that would seem to be relevant, since improper. So again, that goes to some are not saying that just one side gets the whistleblower started this entire of the allegations that were in the arti- to call witnesses; both sides get to call inquiry, but I can’t make any represen- cle. relevant witnesses. tations that we have particular knowl- The Vice President said the same Now, they also make the argument, edge of the facts suggested in the ques- thing. He said: In every conversation implicitly, that this is going to take tion. We know that there was a public with the President and Vice President, long. Senators, warn you, if you want report suggesting connections and in preparation for our trip to Poland, to have a real trial, it is going to re- prior working relationships between the President consistently expressed quire witnesses, and that is going to certain people—not something that I his frustration that the United States take time. I think the underlying can comment on other than to say that was bearing the lion’s share of respon- threat—and I don’t mean this in a there is a report there. harsh way—is: We are going to make sibility. We don’t know what the ICIG dis- this really time-consuming. There is also an interview that Am- cussed. We don’t know what the ICIG bassador Bolton had given, I think in The depositions took place very quickly in the House. We have a per- was told by the whistleblower. Other August, about the conversation, where public reports about inaccuracies in he said it was a perfectly appropriate fectly good Chief Justice behind me that can rule on evidentiary issues. the whistleblower’s report to the ICIG, conversation. I think that information we don’t know the testimony on that. is publicly available now. What is more, the President has waived and waived and waived any claim about We don’t know the situation of the So again, to move that into a change contacts, coordination, advice provided in proceeding, so to speak, I think is national security here by talking about himself, by declassifying the call by Manager SCHIFF’s staff to the whis- not correct. The evidence that has al- tleblower. That all remains unknown, ready been presented, an accusation record. We are not interested in asking but something that obviously—to get that if you get into witnesses, and I Bolton about Venezuela or other places to the bottom of motivations, bias, will do this very briefly—if we get or other countries, just Ukraine. If how this inquiry was all created could down the road on the witness issues, there is any question about it, the potentially be relevant. let’s be clear, it should not be—I cer- Chief Justice can resolve. These are The CHIEF JUSTICE. Thank you, tainly can’t dictate to this body—it relevant questions to the matter at counsel. should certainly not be, though, that hand. What you cannot do is use privi- the House managers get John Bolton, The Senator from New Mexico. lege to hide any wrongdoing of an im- and the President’s lawyers get no wit- Mr. HEINRICH. Mr. Chief Justice, I peachable kind and character. nesses. We would expect that if they send a question to the desk for the The CHIEF JUSTICE. Thank you, President’s counsel. are going to get witnesses, we will get Mr. Manager. witnesses, and those witnesses would The Senator from Utah. The CHIEF JUSTICE. then—but all of that, just to be clear, Mr. LEE. Mr. Chief Justice, I send a When did the President’s counsel first changes the nature and scope of the question to the desk on behalf of my- learn that the Bolton manuscript had been proceedings. They didn’t ask for it be- self and Senators CRUZ and HAWLEY. submitted to the White House for review, fore. The CHIEF JUSTICE. The question is and has the President’s counsel or anyone The CHIEF JUSTICE. Thank you, directed to counsel for the President: else in the White House attempted in any way to prohibit, block, disapprove, or dis- counsel. Is it true that Sean Misko, Abigail Grace, courage John Bolton, or his publisher, from Mr. Manager SCHIFF. Senators, Mr. and the alleged whistleblower were employed publishing his book? Chief Justice: What is the significance by or detailed to the National Security of the President’s former Chief of Staff Council during the same time period between Mr. Counsel PHILBIN. Thank you, saying that he believes John Bolton January 20, 2017, and the present? Do you Mr. Chief Justice, and thank you, Sen- and implicitly does not believe the have reason to believe that they knew each ator, for the question. other? Do you have any reason to believe President, that Bolton should testify? that the alleged whistleblower and Misko co- At some point—I don’t know off the It is really, at the end of the day, not ordinated to fulfill their reported commit- top of my head the exact date—the whether I believe John Bolton or ment to ‘‘do everything we can to take out manuscript had been submitted to the whether General Kelly believes John the President’’? NSC for review. It is with career NSC Bolton but whether you believe John Mr. Counsel PHILBIN. Mr. Chief Jus- staff for review. The White House Bolton or whether you will have an op- tice, Senators, the only knowledge that Counsel’s Office was notified that it portunity to hear directly from John we have—that I have of this comes was there. The NSC has released a Bolton or whether you will have the from public reports. I gather that there statement explaining that it has not opportunity to evaluate his credibility is a news report in some publication been reviewed by anyone outside NSC for yourself. that suggests a name for the whistle- staff. There are a few arguments made blower, suggests where he worked, that In terms of the second part of the against this. Some are rather extraor- he worked at that time while detailed question, has there been any attempt dinary. It would be unprecedented, the to the NSC staff for then-Vice Presi- to prevent its publication or to block suggestion, I think is, to have wit- dent Biden and that there were others its publication, I think that there was nesses in the trial. What an extraor- who worked there. We have no knowl- some misinformation put out into the dinary idea. But as my colleagues have edge of that, other than what is in public realm earlier today, and I can said, it would be extraordinary not to. those public reports, and I don’t want read for you a relatively short letter This would be the first impeachment to get into speculating about that. It is that was sent from NSC staff to trial in history that involves no wit- something that, to an unknown extent, Charles Cooper, who is the attorney for nesses, if you decide you don’t want to may have been addressed in the testi- Mr. Bolton, on January 23, which was hear from any, that you simply want to mony of the inspector general of the last week. rely on what was investigated in the intelligence community before Chair- It says: House. That would be unprecedented. man SCHIFF’s committees, but that tes- Yes, we should be able to call wit- timony, contacts with the whistle- Dear Mr. Cooper: Thank you for speaking nesses, and, yes, so should the Presi- blower, contacts between members of yesterday by telephone. As we discussed, the National Security Council . . . Access Man- dent—relevant witnesses. Manager SCHIFF’s staff and the whistle- agement directorate has been provided the Now, the President says that you blower are shrouded in secrecy to this manuscript submitted by your client, former can’t believe John Bolton, and Mick day. We don’t know what the testi- Assistant to the President for National Secu- Mulvaney says you can’t believe John mony of the ICIG was. That remains rity Affairs John Bolton, for prepublication Bolton. Well, let the President call secret. It has not been forwarded. review. Based on our preliminary review, the

VerDate Sep 11 2014 23:34 Feb 11, 2020 Jkt 099060 PO 00000 Frm 00016 Fmt 4624 Sfmt 0634 E:\RECORD20\JANUARY\S29JA0.REC S29JA0 sradovich on DSKJLST7X2PROD with CONG-REC-ONLINE January 29, 2020 CONGRESSIONAL RECORD — SENATE S661 manuscript appears to contain significant available, and there was a significant tarily and answer all relevant ques- amounts of classified information. It also ap- amount of testimony in the House pro- tions truthfully. pears that some of this classified informa- ceedings that President Trump’s policy But President Trump issued a blan- tion is at the TOP SECRET level, which is ket order directing the entire execu- defined by Executive Order 13526 as informa- toward Ukraine was actually stronger. tion that ‘‘reasonably could be expected to Ambassador Volker explained that tive branch to withhold all documents cause exceptionally grave harm to the na- America’s policy toward Ukraine has and testimony from the House of Rep- tional security’’ of the United States if dis- been strengthened under President resentatives. His order was categorical. closed without authorization. Under federal Trump and that each step, along the It was indiscriminate and unprece- law and the nondisclosure agreements your way in decisions that got to the Jav- dented. Its purpose was clear: to pre- client signed as a condition for gaining ac- elin missiles being provided, was made vent Congress from doing its duty cess to classified information, the manu- by President Trump. It is something under the Constitution to hold the script may not be published or otherwise dis- closed without the deletion of this classified that has substantially strengthened President accountable for high crimes information. our relationship with Ukraine and and misdemeanors. The manuscript remains under review in strengthened their ability to resist Telling every person who works in order for us to do our best to assist your cli- Russian aggression. the White House and every person who ent by identifying the classified information Ambassador Yovanovitch said that works in every department, agency, within the manuscript, while at the same President Trump’s decision to provide and office of the executive branch is time ensuring that publication does not just unprecedented. It wasn’t about harm the national security of the United lethal weapons meant that our policy States. We will do our best to work with you actually got stronger over the last 3 specific, narrowly defined privileges. to ensure your client’s ability to tell his years, and she called it ‘‘very signifi- He never asserted privileges, and the story in a manner that protects U.S. na- cant.’’ President’s counsel has mentioned over tional security. We will be in touch with you Another point to make in relation to and over that he had some reason be- shortly with additional, more detailed guid- this is, again, that the pause—the tem- cause of the subpoenas. ance regarding next steps that should enable porary pause that took place over the Well, I tell you, we adopt rules about you to revise the manuscript and move for- subpoenas in the House. The Senate is ward as expeditiously as possible. Sincerely, summer—is something that the Ukrainian Deputy Defense Minister de- a continuing body, but the House isn’t. And the signature of the career offi- scribed it as being so short that they In January, we adopted our rules, and cial. So it is with the NSC doing their didn’t even notice it. So President it allows the committee chairman to prepublication review. issue subpoenas, and that is what they Through his lawyer, Ambassador Trump’s policies, across the board, did. Bolton was notified that the manu- have been stronger than the prior ad- ministration’s in providing defensive He refused to comply with those sub- script he submitted contains a signifi- poenas, not because he exerted execu- cant amount of classified information, capability—lethal defensive capa- tive privilege but because he didn’t including at the top secret level, so bility—to Ukrainians, and I think that like what we were doing. He tried to that in its current form it can’t be pub- that is significant. say it was invalid, but it was valid. lished but that they will be working As to the specific part of the ques- tion, Senators, whether it was contrary Actually, he doesn’t have the author- with him as expeditiously as possible ity to be the arbiter of the rules of the to provide guidance so it can be revised to the advice of the President’s Defense Secretary and others, I believe that House. The House is the sole arbiter of and so that he can tell his story. its rules when it comes to impeach- That is the letter from the NSC that that is accurate. It was against the ad- ment. went out. Thank you. vice of the Secretary of Defense. It was The CHIEF JUSTICE. Thank you, President Trump’s decision to provide Now, this refusal to give testimony, counsel. the lethal assistance, and that has been documents, and the like is still going The Senator from Iowa. made public in the past. Thank you. on. We still have former or current ad- Ms. ERNST. Mr. Chief Justice, I send The CHIEF JUSTICE. Thank you, ministration officials who are refusing a question to the desk on behalf of my- counsel. to testify. You know, we would not self and Senators BURR, MCSALLY, Mrs. FEINSTEIN. Mr. Chief Justice. allow this in any other context. You DAINES, MORAN, YOUNG, and SASSE. The CHIEF JUSTICE. Senator FEIN- know, if a mayor said that I am not The CHIEF JUSTICE. The Senators’ STEIN. going to answer your subpoenas, they question is directed to counsel for the Mrs. FEINSTEIN. Thank you, Mr. would be dealt with harshly if it was to President. Chief Justice. I send a question to the cover up misdeeds and crimes, as we Is it true the Trump administration ap- desk on behalf of Senators CARPER, have here. The mayor would actually proved supplying Javelin anti-tank missiles COONS, HIRONO, LEAHY, TESTER, UDALL, go to jail for doing that. to Ukraine? Is it also true this decision came and myself to the House managers. If we allow the President to avoid ac- on the heels of a nearly three-year debate in Thank you. countability by simply refusing to pro- Washington over whether the United States vide any documents, any witnesses— should provide lethal defense weapons to The CHIEF JUSTICE. The question from Senator FEINSTEIN and the other unlike every single President who pre- counter further Russian aggression in Eu- ceded him—we are opening the door rope? By comparison, did President Obama Senators is to the House managers: not just to eliminating the impeach- refuse to send weapons or other lethal mili- The President has taken the position that tary gear to Ukraine? Was this decision there should be no witnesses and no docu- ment clause in the Constitution. Try against the advice of his Defense Secretary ments provided by the executive branch in doing oversight. Try doing oversight, and other key military leaders in his admin- response to these impeachment proceedings. Senators, working without that in the istration? Is there any precedent for this blanket re- House. If the President can just say, we Mr. Counsel PHILBIN. Mr. Chief Jus- fusal to cooperate, and what are the con- are not sending any witnesses; we are tice, Senators. Thank you, Senators, sequences if the Senate accepts this position not sending any documents; we don’t for the question. here? have to; we don’t like your processes; Yes, the Trump administration made Ms. Manager LOFGREN. Mr. Chief we have a wholesale rejection of what the decision to provide Javelin anti- Justice and Senators, President Trump you are doing—that is not the way our tank missiles, and there was a signifi- has taken really an extreme measure Constitution was created. Each body cant debate about that for some time. to hide this evidence from Congress. No has a responsibility. There is sharing of Authorization had been granted by President has ever issued an order to power. I, and I know you, cherish the Congress, and many of you voted for direct a witness to refuse to cooperate responsibility that we have that would that statutory authorization during in an impeachment inquiry before this. be eviscerated if the President’s com- the Obama administration to provide Despite his famous attempts to con- plete stalling is allowed to persist and lethal assistance to Ukraine, but the ceal the most damaging evidence be accepted by this body. You have to Obama administration decided not to against him, even President Nixon al- act now in this moment in history. provide that. lowed senior officials to testify under I yield back. It was only the Trump administra- oath. Not only did he allow them; he The CHIEF JUSTICE. Thank you. tion that made that lethal assistance told them to go to Congress volun- Mrs. CAPITO. Mr. Chief Justice.

VerDate Sep 11 2014 01:36 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00017 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.032 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S662 CONGRESSIONAL RECORD — SENATE January 29, 2020 The CHIEF JUSTICE. The Senator I suggest it to the Senate if they wish The answer is no. The evidence does from West Virginia. to have something to consider further not show that. We know that Defense Mrs. CAPITO. Thank you. I send a on this. Department official Laura Cooper tes- question to the desk for the President’s Danyliuk said he first found out that the tified that her staff received 2 emails counsel. U.S. was withholding aid to Ukraine by read- from the State Department on July 25 The CHIEF JUSTICE. Senator CAP- ing POLITICO’s article published Aug. 28. revealing that the Ukrainian Embassy ITO’s question is for counsel for the U.S. officials and Ukrainian diplomats, in- was ‘‘asking about security assist- President: cluding the country’s former Foreign Min- ance,’’ and, in fact, counsel for the You said that Ukrainian officials didn’t ister Olena Zerkal, have said publicly that President brought up these emails just know about the pause on aid until August 28, Kyiv was aware that there were problems with the U.S. aid as early as July. now. I would propose that the Senate 2019, when it was reported in POLITICO. But subpoena those emails and we can all didn’t Laura Cooper, the deputy assistant That is the article that they have see for ourselves what exactly was hap- secretary of defense for Russia, say that mentioned in the statement that the members of her staff received queries about pening. House managers have mentioned. We also know that career diplomat the aid from the Ukrainian Embassy on July Here is Mr. Danyliuk: 25? Does that mean that Ukrainian officials Catherine Croft stated that she was knew about the hold on aid earlier than the ‘‘I was really surprised and shocked. Be- ‘‘very surprised at the effectiveness of POLITICO article? cause just a couple of days prior to that . . . my Ukrainian counterparts’ diplomatic Mr. Counsel PURPURA. Mr. Chief I actually had a meeting with John Bolton. Actually, I had several meetings with him. tradecraft, as in to say they found out Justice, Members of the Senate, Sen- And we had extensive discussions. The last very early on, or much earlier than I ator, thank you for your question. thing I expected to read was an article about expected them to,’’ and that LTC Alex It does not mean that. As we ex- military aid being frozen,’’ Danyliuk said. Vindman testified that by mid-August plained on Saturday, the overwhelming ‘‘After that . . . I was trying to get the he was getting questions from Ukrain- body of evidence indicates that the truth. Was it true or not true?’’ ians about the status of security assist- Ukrainians, at the very highest lev- Danyliuk said that ‘‘it was a panic’’ inside ance. els—President Zelensky and his top ad- the Zelensky administration after the initial So the evidence shows over and over visers—only became aware of the pause news broke, saying Zelensky was convinced again from the House inquiry that there had been some sort of mistake. in the security assistance through the there was a lot of discussion, and there August 28 POLITICO article. That is President Zelensky. should be because we also know that I addressed this on Saturday—and so Danyliuk put in calls to the National Secu- delays matter. They matter a lot. You those comments will stand—the emails rity Council and asked other officials in don’t have to take my word for it. This that Deputy Assistant Secretary of De- Washington what to make of the news. is not just about a 48-day delay. fense Laura Cooper testified about pre- Again, this is on August 28, or right Ukrainians were consistently asking viously. What she had said was that after August 28. about it because it was urgent. They she—her staff—had gotten emails from ‘‘The next time we met in September . . . needed it. They needed it. someone at the State Department who it was in Poland for the commemoration of You know who else was asking for had had some sort of conversation with the beginning of the Second World War’’— it—American businesses. The contrac- Ukrainian officials here that somehow The Warsaw meeting we discussed tors who were going to be providing related to the aid at a time prior to previously— this were also making inquiries about August 28. She did not know the sub- Danyliuk said, adding that he met with it because there is a pipeline. stance of the emails or whether they Bolton on the sidelines of the commemora- As my esteemed Senate Armed Serv- mention ‘‘hold,’’ ‘‘pause,’’ ‘‘review,’’ or tion. ‘‘I had my suspicions. There was a spe- ices colleagues know very well, pro- anything of that nature. And she even cial situation with one of our defense compa- viding aid is not like turning on and off said herself that she didn’t want to nies that were acquired by the Chinese. And a light switch. You have to hire em- speculate as to what the emails meant the U.S. was concerned about this. Bolton ployees. You have to get equipment. actually made the public comments about and cannot say for certain what they this as well. So somehow I linked this to You have to ship it. It takes a long were about. things and tried to understand. OK, maybe time for that pipeline to go. In fact, we I presented on Saturday the evidence, this could be related to this.’’ had to come together as a Congress to which, again, is referencing the com- So not only did they not know until pass a law to extend that timeline be- mon sense that would be in play here. August 28—when they did find out—but cause we were at risk of losing it. And This was something that on August 28 they didn’t link it to any investiga- to this day, $18 million of that aid has caused a flurry of activity among the tion. Where is the quid pro quo? If it is still not been spent. highest ranking Ukrainian officials. such at the forefront of their minds, Let’s just assume for a minute, also Never before did they raise any ques- such pressure on them that the Ukrain- broadly speaking, that the President’s tions at any of the meetings they had ians have to do these investigations to counsels’ argument that support for with the high-ranking U.S. officials get the aid, when the aid was held up, Ukraine has never been better than it through July and August. There were they didn’t think it was connected to is today, that under the Trump admin- meetings on July 9, July 10, July 25 the investigations. istration, they are the strongest ally call, July 26, and August 27. At none of The CHIEF JUSTICE. Thank you, Ukraine has seen in years. Just assum- those meetings was the pause on aid re- counsel. ing for a minute that argument to be vealed or inquired about. However, as The Senator from Maryland. true, it kind of makes our own argu- soon as the POLITICO article came out Mr. CARDIN. Mr. Chief Justice, I ment. It kind of makes our argument: on August 28, within hours of that PO- have a question on behalf of Senator Then why hold the aid? Why hold the LITICO article coming out, Mr. aid? Because nothing had changed in BALDWIN and myself, and I send it to Yermak texted the article to Ambas- the desk. 2016; nothing had changed in 2017; and sador Volker and asked to speak with The CHIEF JUSTICE. The question is nothing had changed in 2018. One thing him. That is consistent with someone addressed to the House managers: had changed in 2019, and that was Vice finding out about it for the first time. President Biden was running for Presi- The Ukrainians have also made state- Is the White House correct in its trial dent. memorandum and in presentations of its ments that they learned about it for case that ‘‘President Zelensky and other sen- Lastly, the previous question by my the first time. ior Ukrainian officials did not even know Senate Armed Services colleagues And then Mr. Philbin just referenced that the security assistance had been framed this in terms of the military an article that came out yesterday in paused’’ before seeing press reports on Au- impact. They asked: What was greater the Daily Beast, which is an interview gust 28, 2019, which was more than a month in terms of military impact, not pro- with Mr. Danyliuk, who was, at the after the July 25 phone call between Presi- viding lethal aid or a 48-day delay? time, a high-ranking defense official dents Zelensky and Trump? Let’s not forget the reason for the with the Ukrainians. This is inter- Mr. Manager CROW. Thank you, delay, because there is a lot of discus- esting, and I am going to read this arti- Chief Justice and Senators, for the sion today about the technicalities of cle because I think it is important, and question. the delay and that the President’s

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As cles were published by ABC, by the we are here—that it does matter what long as he was still the President in New Yorker, and by the Washington the President intended to do because in Ukraine, it questioned the utility of Post before the July 25 call. matters of national security, the raising an incident in which he was the On July 22, 3 days before the call, the American people deserve to go to bed one who was taking the direction from Washington Post has an article specifi- every night knowing that the Presi- Vice President Biden to fire the pros- cally about the Bidens and Burisma. dent, the Commander in Chief, the per- ecutor. That is what makes it suddenly cur- son who is ultimately responsible for When you have an election in April of rent, relevant, probably to be in some- the safety and security of our Nation 2019 and you have a new President— one’s mind. every night, has the best interests of President Zelensky—who has run on an That is the timeline. them and their families and this coun- anti-corruption platform, and there is The CHIEF JUSTICE. Thank you, try in mind, not the best interests of a question ‘‘Is he really going to counsel. his political campaign. That is why we change things; is there going to be Mr. Counsel PHILBIN. Thank you, are here. something new in Ukraine?’’ it opens Senator. The CHIEF JUSTICE. Thank you, up an opportunity to really start look- Ms. HARRIS. Mr. Chief Justice. Mr. Manager. ing at anti-corruption issues and rais- The CHIEF JUSTICE. The Senator Ms. COLLINS. Mr. Chief Justice. ing questions. from California. The CHIEF JUSTICE. Senator. The other thing to understand in the Ms. HARRIS. Thank you. I send a Ms. COLLINS. I send a question to timeline is that we have heard a lot question to the desk on behalf of Sen- the desk on behalf of myself and Sen- about Rudy Giuliani, the President’s ator PATTY MURRAY and myself. ator MURKOWSKI. private lawyer, and what was he inter- The CHIEF JUSTICE. Senators HAR- The CHIEF JUSTICE. Thank you. ested in in Ukraine and what was his RIS and MURRAY ask the House man- The question is to counsel for the role? Well, as we know—it has been agers: President: made public—Mr. Giuliani, the Presi- The House of Representatives is now in Witnesses testified before the House that dent’s private lawyer, had been asking possession of a tape of President Trump say- President Trump consistently expressed the a lot of questions in Ukraine dating ing of Ambassador Maria Yovanovitch, ‘‘Get view that Ukraine was a corrupt country. back to the fall of 2018, and in Novem- rid of her! Get her out tomorrow. I don’t Before Vice President Biden formally en- ber 2018, he said publicly he was given care. Get her out tomorrow. Take her out. tered the 2020 presidential race in April 2019, some tips about things to look into. Okay? Do it.’’ President Trump gave this did President Trump ever mention Joe or order to Lev Parnas and Igor Fruman, two Hunter Biden in connection with corruption He gave a dossier to the State De- men who carried out Trump’s pressure cam- in Ukraine to former Ukrainian President partment in March of this year. Re- paign in Ukraine at the direction of Rudy Poroshenko or other Ukrainian officials, member, Vice President Biden an- Giuliani. Does the discovery of this tape sug- President Trump’s cabinet members or top nounced his candidacy in April—April gest that if the Senate does not pursue all aides, or others? If so, what did the President 25. In March, Rudy Giuliani gave docu- relevant evidence—including witnesses and say to whom and when? ments to the State Department, in- documents—that new evidence will continue Mr. Counsel PHILBIN. Mr. Chief Jus- cluding interview notes from inter- to come to light after the Senate renders a tice, Senators, thank you for that views he conducted both with Shokin verdict? question. and with Yuriy Lutsenko, who was also Mr. Manager SCHIFF. The answer is Of course, I think it is important at a prosecutor in Ukraine. Those inter- yes. the outset to frame the answer by bear- view notes are from January 23 and What we have seen, really, over the ing in mind I am limited to what is in January 25, 2019—so months before last several weeks, since the passage of the record, and what is in the record is Vice President Biden announced any the articles in the House of Represent- determined by what the House of Rep- candidacy—and it goes through in atives, is that every week—indeed, resentatives sought. It was their pro- these interview notes, Shokin explain- sometimes every day—there is new in- ceeding. They were the ones who ran it. ing that he was removed at the request formation coming to light. They were the ones who called the wit- of Mr. Joseph Biden, the Vice Presi- We know there is going to be new in- nesses. Part of the question refers to dent. It explains that he had been in- formation coming to light on March 17, conversations between President vestigating Burisma and that Hunter when the Bolton book comes out; that Trump and other Cabinet members and was on the board, and it raises all of is, if the NSC isn’t successful in redact- others like that. There is not some- the questions about that. ing it or preventing much of its publi- thing in the record on that. It wasn’t So it was Mr. Giuliani who had been, cation. thoroughly pursued in the record, so I as Jane Raskin as counsel for the On that issue, I do want to mention can’t point to something in the record President explained the other day—Mr. one other thing in response to the that shows President Trump, at an ear- Giuliani is looking into what went on question about the Bolton manuscript lier time, mentioning specifically in Ukraine: Is there anything related and what the White House lawyers something related to Joe or Hunter to 2016? Are there other things related knew. I listened very carefully to the Biden. there? answer to that question, and maybe It is in the record that he spoke to And he is given this information— you listened more carefully than I did. President Poroshenko twice about cor- tips about this—and starts pursuing What I thought I heard them say in an- ruption in Ukraine, both in June of 2017 that as well. He is digging into that in swer to the question ‘‘What did they and again in September of 2017. But January of 2019. know about the manuscript and when there is other information publicly We know that Mr. Giuliani is the did they know it?’’—their statement available and in the record that I think President’s private counsel. I can’t rep- was very precisely worded: The NSC is important for understanding the resent specific conversations they had. unit reviewing the book did not share timeline and understanding why it was They would be privileged. But we do the manuscript. that the information related to the know from testimony that the Presi- Well, that is a different question Bidens and the Burisma affair came up dent said in a May 23 Oval Office meet- than whether the White House lawyers when it did. ing with respect to Ukraine: Talk to found out what is in it, because you One important piece of information Rudy. Rudy knows about Ukraine. It don’t have to circulate the manuscript to bear in mind is that from the tapes seems from that that the President to have someone walk over to the we have seen, President Poroshenko gets information from Mr. Giuliani. White House and say: You do not want was the person who Joe Biden himself Months before Vice President Biden John Bolton to testify. Let me tell went to to have the prosecutor fired. announced his candidacy, Mr. Giuliani you, you do not want John Bolton to So as long as President Poroshenko is looking into this issue, interviewing testify. You don’t need to read his was still in charge in Ukraine, he was people, and getting information about manuscript because I can tell you what the person who Joe Biden had spoken it. is in it.

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We know United States Government develop concerns June. There was a two-part New York- that from the witnesses we have al- about Burisma in relation to corruption and er story about the Bidens and Burisma ready heard from, but we also know— concerns with Russia? in July. Then, on July 22, the Wash- at least if the reporting is correct, and Mr. Counsel PHILBIN. Mr. Chief Jus- ington Post had an article and ex- you should find out if it is—that John tice, I thank the Senators for that plained specifically on just July 22— Bolton tells a very different story. question. I think it bears on the answer this is 3 days before the July 25 call— There are going to continue to be that I was last giving to the last ques- the Washington Post reported that Mr. revelations, and Members of this body tion. Shokin, the prosecutor, believed ‘‘his on both sides of the aisle are going to This is something that became—of ouster was because of his interest in have to answer a question each time it course, President Trump, in his con- the company,’’ referring to Burisma, does: Why didn’t you want to know versation with President Zelensky in and he said that ‘‘had he remained in that when it would have helped inform the July 25 call, as the transcript his post, he would have questioned your decision? shows us, brought up a couple of Hunter Biden.’’ In every other trial in the land, you things. He brought up burden-sharing So I think it is a reasonable inference call witnesses to find out what you specifically, and he raised the issue of that, as there were these articles being can. Again, we are not a court of ap- corruption in two specifics: the specific published in close proximity to the peals here. We are the trial court. We case of potential Ukraine interference time, this was information that was are not confined to the record below. in the 2016 election, which he had heard available to the President, and it be- There is no ‘‘below.’’ In answer to the about and asked about, and the inci- came available to him as something Senator’s question about whether Don- dent involving the firing of a pros- that was a specific example of poten- ald Trump ever brought up the Hunter ecutor who, according to public re- tially serious corruption. And remem- Biden problem with President ports, had been looking into Burisma, ber, everyone who testified, who was Poroshenko in the past, counsel says: the company that the Vice President’s asked about it—does it seem like there Well, we are confined to the record be- son was on the board of. That was the is an appearance of a conflict of inter- fore us. President’s way of pinpointing specific est? Does it seem like that is fishy? Ev- You are not confined to the record in issues related to corruption. the House, nor is the President. The eryone testified: Well, yes, there is at So when did it become a part of the least an appearance of a conflict of in- President could call witnesses if they President’s concern, those issues re- existed. There is nothing to prevent terest there. lated to corruption in Ukraine? Of I think it was after the information them from saying: As a matter of fact, course, we have the evidence that ev- tomorrow we are going to call such and had come to Mr. Giuliani—long before eryone in the government—and Fiona Vice President Biden had announced such, and they are going to testify Hill testified to this—thought that that, indeed, Donald Trump brought up his candidacy—that it came to the at- anti-corruption was a major issue for tention of the President and became Hunter Biden to President Poroshenko. U.S. policy with respect to Ukraine. There is nothing prohibiting them from something worth raising. Again, Presi- When there was a new President elect- dent Poroshenko is the one who fired doing that. ed in April, President Zelensky, that At the end of the day, we are going to the prosecutor. While he is still the brought the possibility of reform to the continue to see new evidence come out President, there is not really as much forefront. all the time. Among the most signifi- of an opportunity or a possibility of Then we know that the President was cant evidence, we know what that is raising that. So I think it was in that receiving information from his private going to be. And the effort to suggest, timeframe, along that arc of the tim- attorney, Rudy Giuliani, and he spoke well, because this President was ing, that it came to the President’s at- in the Oval Office of, Rudy knows stronger in Javelins than his prede- tention, and that is why it was raised cessor—when we know from the July 25 about the Ukraine. You guys go talk to in that timing. call, the moment that Zelensky brings him. Thank you. up the Javelins, what is the very next He was explaining to the delegation The CHIEF JUSTICE. Thank you, thing the President says? He wants a that had just returned from the inau- counsel. favor. guration for the President, for Presi- The Senator from Connecticut. The question is, Why did he stop the dent Zelensky, that he had concerns Mr. BLUMENTHAL. Mr. Chief Jus- aid? Why did he stop the aid this year about Ukraine because they are all cor- tice, I have a question for the counsel and no prior year? Was it merely a co- rupt. He kept saying: It is a corrupt for the President. incidence? Are we to believe it was country. I don’t know. They tried to The CHIEF JUSTICE. Senator merely a coincidence that it was the get me in the election. BLUMENTHAL asks: year that Joe Biden was running for So it draws again on, there is his spe- Did anyone in the White House, or outside President? Are we to believe that, of cific experience with Ukrainian corrup- the White House, tell anyone in the White all the companies in all the land—of all tion because he knew from the public House Counsel’s Office that publication of the gin joints in all the land—of reports, as in the POLITICO article the Bolton book would be politically prob- lematic for the President? Ukraine, that it was just Hunter Biden that has been referenced many times. walking into this one; that was the The POLITICO article in January of Mr. Counsel PHILBIN. Mr. Chief Jus- reason why; that he was interested in 2017 explained a laundry list of Ukrain- tice, I thank the Senator for the ques- Burisma was just a coincidence that in- ian Government officials who had been tion. volved the son of his opponent? out there attempting to assist the Hil- No, no one from inside the White But, look, more and more is coming lary Clinton campaign and spread mis- House or outside the White House told out. Let’s make sure that you learn information or bad information or as- us that the publication of the book whatever you feel you need to know to sist in digging up dirt on members of would be problematic for the President. render a judgment now, when it can in- the Trump campaign. I think we assumed that Mr. Bolton form your decision, and not later. Mr. Giuliani had been investigating was disgruntled, and we didn’t expect The CHIEF JUSTICE. Thank you, things related to Ukraine in 2016 and he was going to be saying a lot of nice Mr. Manager. was led to the information about the things about the President, but no one The Senator from Nebraska. Burisma situation and Vice President told us anything like that. Mrs. FISCHER. Mr. Chief Justice, I Biden having the prosecutor fired. So The CHIEF JUSTICE. Thank you, send a question to the desk on behalf of that was in January that he had these counsel.

VerDate Sep 11 2014 02:45 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00020 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.026 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 29, 2020 CONGRESSIONAL RECORD — SENATE S665 The Senator from Texas. its staff, did not receive the complaint The CHIEF JUSTICE. Thank you, Mr. CRUZ. I send a question to the until the night before the Acting Direc- Mr. Manager. desk on behalf of myself and Senators tor of National Intelligence—we had an The Senator from Rhode Island. MORAN and HAWLEY. It is a question for open hearing with the Acting Director Mr. WHITEHOUSE. Mr. Chief Jus- the House managers. on September 26, more than 3 weeks tice, on my own behalf and on behalf of The CHIEF JUSTICE. The question after the legal deadline by which the Senators BLUMENTHAL, BOOKER, COONS, from the Senators to the House man- committee should have received the KLOBUCHAR, LEAHY, MARKEY, PETERS, agers: complaint. and UDALL, I send a question to the An August 26, 2019, letter from the Intel- In short, the conspiracy theory, desk. ligence Community Inspector General to the which I think was outlined earlier, The CHIEF JUSTICE. The question is Director of National Intelligence discussing that the whistleblower colluded with from Senator WHITEHOUSE and other the so-called whistleblower stated that the the Intel Committee staff to hatch an Senators to the House managers: Inspector General ‘‘identified some indicia of impeachment inquiry is a complete and The ‘‘missing-witness’’ rule—which dates an arguable political bias on the part of the back to 1893 Supreme Court case Graves v. Complainant in favor of a rival political can- total fiction. This was, I think, con- United States—allows one party to obtain an didate.’’ Multiple media outlets reported firmed by the remarkable accuracy of adverse inference against the other for fail- that this likely referred to the whistle- the whistleblower complaint, which ure to produce a witness under that party’s blower’s work with Joe Biden. has been corroborated by the evidence Did the so-called whistleblower work at control with material information. Here, one we subsequently gathered in all mate- party, the President, has prevented wit- any point for or with Joe Biden? If so, did he rial respects. work for or with Joe Biden on issues involv- nesses within his control from testifying or So I am not going to go into any- providing documents. Do the House man- ing Ukraine, and did he assist in any mate- thing that could reveal or lead to the rial way with the quid pro quo in which then- agers believe Senators should apply the Vice President Biden has admitted to condi- revelation of the identity of the whis- missing witness rule here, and if so, what ad- tioning loan guarantees to Ukraine on the tleblower, but I can tell you, because verse inferences should we draw about the firing of the prosecutor investigating my staff’s names have been brought missing testimony and documents? Burisma? into this proceeding, that my staff Mr. Manager SCHIFF. Mr. Chief Jus- Mr. Manager SCHIFF. Mr. Chief Jus- acted at all times with the most com- tice, Senators, we do believe that you tice, I thank the Senators for the ques- plete professionalism. should draw an adverse inference tion, and I want to be very careful in I am very protective of my staff, as I against the party resisting the testi- how I answer it so as not to disclose or know you are, and I am grateful that mony of these witnesses, like John give an indication that may allow oth- we have such bright, hard-working peo- Bolton. Courts have long recognized ers to identify the identity of the whis- ple working around the clock to pro- that when a party has relevant evi- tleblower. tect this country and who have served dence within his control, which he fails First, I want to talk about why we our committee so well. It really grieves to produce, that failure gives rise to an are making such an effort to protect me to see them smeared. Some of them inference that that evidence is unfavor- the identity of the whistleblower. mentioned here today have concerns able to him. If you could put up slide 48, this slide about their safety, and there are online Courts have frequently drawn ad- shows—it may be difficult for some of threats to members of my staff as a re- verse inferences where a party acts in you to read, so let me try to—actually, sult of some of the smears that have bad faith to conceal evidence or pre- if you could hand me a copy of that as been launched against them. clude witnesses from offering testi- well. I haven’t had a chance to dis- I can tell you there is no one who mony. tribute that to everyone. could understand the plight of Ambas- I would suggest that it is bad faith It is not just that we view the protec- sador Yovanovitch more than some of when counsel comes before you and tion of whistleblowers as important. my staff who have been treated to the says that if you really wanted these Members of this body have also made same kind of smears and now have con- witnesses, you should have sued to get strong statements about just how im- cerns over their own safety. They acted them in the House and goes into the portant it is to protect whistleblowers. at all times with the utmost propriety courtroom down the street and says: Senator GRASSLEY said: ‘‘This person and integrity. You can’t sue to get witnesses before appears to have followed the whistle- Your Senate Intelligence Com- the House. blower protection laws and ought to be mittee—and your chairman and vice But that is what has happened here. heard out and protected. We should al- chairman can tell you—encourage And you are, I think, not only per- ways work to respect whistleblowers’ whistleblowers to come to their com- mitted but absolutely should draw an requests for confidentiality.’’ mittee, and so do we. When they do, we adverse inference that when a party is Senator ROMNEY: ‘‘Whistleblowers try to figure out, is their complaint making that argument on both sides of should be entitled to confidentiality within the scope of jurisdiction of the the courthouse, that the evidence those and privacy because they play a vital intelligence community? And if it is, witnesses would provide runs against function in our democracy.’’ then we suggest they get a lawyer or them. Senator BURR: ‘‘We protect whistle- we suggest they talk to the inspector Now, the administration hasn’t pro- blowers. We protect witnesses in our general, which is what happened here. duced a single document, not one sin- committee.’’ The whistleblower did exactly what gle document. That is extraordinary. Even my colleague, the ranking they should—except, for the President, They can argue executive privilege and member, Mr. NUNES: ‘‘We want people that is unforgivable because the whis- absolute immunity. Most of that has to come forward, and we will protect tleblower exposed the wrongdoing of nothing to do with the overwhelming the identity of those people at all the President. In the President’s view, majority of these documents, not a wit. cost.’’ that makes him or her a traitor or a There is no absolute immunity from This has been a bipartisan priority spy, and, as the President tells us, providing documents. The vast, vast and one that we have done our best to there is a way we used to treat traitors majority don’t have anything to do maintain, so I want to be very careful, and spies. with privilege, and, if they did, there but let me be clear about several You wonder why we don’t want to would be redactions, very specific things about the whistleblower. call the whistleblower. First of all, we redactions. None of that happened. First of all, I don’t know who the know firsthand what the whistleblower Are you allowed to draw an adverse whistleblower is. I haven’t met them or wrote secondhand in that complaint. inference that the reason why the communicated with them in any way. There is no need for that whistleblower President’s team, which has possession The committee staff did not write the anymore, except to further endanger of those emails regarding inquiries by complaint or coach the whistleblower that person’s life. That, to me, does not Ukraine into why the aid was frozen— what to put in the complaint. The com- seem a worthwhile object for anyone in are you allowed to draw an inference— mittee staff did not see the complaint this Chamber or on the other side of if they won’t show you those emails. before it was submitted to the inspec- this building, in the Oval Office, or Those emails would confirm that tor general. The committee, including anywhere else. Ukraine knew the aid was withheld,

VerDate Sep 11 2014 23:38 Feb 11, 2020 Jkt 099060 PO 00000 Frm 00021 Fmt 4624 Sfmt 0634 E:\RECORD20\JANUARY\S29JA0.REC S29JA0 sradovich on DSKJLST7X2PROD with CONG-REC-ONLINE S666 CONGRESSIONAL RECORD — SENATE January 29, 2020 just like the former Deputy Foreign know, we keep going back and forth on But they wouldn’t have that. So they Minister of Ukraine said publicly when this—they keep representing that there mooted out the case. They withdrew she told the New York Times: Yes, we was a blanket defiance and there was the subpoena to moot out the case be- knew; by the end of July, we knew— no explanation and there was no legal cause they didn’t want to go to the this is the Deputy Foreign Minister at basis for what the President was doing. hearing in front of Judge Leon on De- the time—we knew the aid was frozen, And it is just not true. There were let- cember 10. but I was instructed by Andriy Yermak ters back and forth. I put them up on They have also pointed out, as if it is not to mention it. I had a trip planned the screen. There were specific immu- some outrage, that documents have to Washington to talk to Congress, and nities asserted. There were specific been more readily produced under I was told not to go. Why? Because legal deficiencies in the subpoenas that FOIA than in response to their sub- they didn’t want it public. were sent. poenas. But what that actually shows Are you entitled to draw an inference This is important because if you are is that when you turn square corners that those records they refused to turn going to impeach the President of the and follow the law and make a request over—all the State Department United States, turning square corners to the administration that follows the records; the fact that they won’t allow and proceeding by the law matters. For law, the administration follows the law John Bolton’s notes to be turned over; the House managers to come here and and responds. And that is right. The they won’t let Ambassador Taylor’s say it was blanket defiance, it was un- documents were produced. Information notes to be turned over—should you precedented, you have to draw an ad- came out. But they didn’t get it be- draw an adverse inference? You are verse inference against them because cause they issued invalid subpoenas, darned right you should. they didn’t respond to any of our docu- and they didn’t try to do anything to They say: Well, the President only ment subpoenas—all the document sub- establish the validity of their sub- told Sondland ‘‘no quid pro quo.’’ They poenas were issued without authoriza- poenas. leave out the other half where tion. Maybe they disagree with us, but If you are going to be sloppy and Sondland told Taylor: But he said, no they can’t just say we provided no ra- issue invalid subpoenas, you are not quid pro quo, but you have to go to the tionale and you have to draw an ad- going to get a response. But if some mike and announce these investiga- verse inference. There is a specific private litigant follows FOIA and sub- tions. legal rationale provided. mits a FOIA request, they get a re- Well, Ambassador Taylor wrote down They didn’t try to engage in the ac- sponse. the notes of that conversation. That commodation process, and they didn’t To act like the Trump administra- took place right after that call with try to go to court. And now, yes, it is tion has done some blanket denial of the President. Are you allowed to draw true that our position is that when everything simply isn’t accurate, and an adverse inference from the fact that they go to the court, article III courts there is no basis for any adverse infer- they don’t want you to see Ambassador don’t have jurisdiction over that. Their ence because there is a specific privi- Taylor’s notes, from the fact they position is, article III courts do have lege or basis for every reason not to don’t want you to see Ambassador Tay- jurisdiction over that. produce something. lor’s cable? You are darned right you They believe that they can get a The CHIEF JUSTICE. Thank you, should draw an adverse inference. court order to require us to comply counsel. Finally, with respect to who has be- with a valid subpoena, but they never come a central witness here, I think Ms. HASSAN. Mr. Chief Justice. tried to establish in court that their The CHIEF JUSTICE. The Senator the adverse inference screams at you as subpoenas were valid. We have an as- from New Hampshire. to why they don’t want John Bolton. sertion of a legal deficiency on one Ms. HASSAN. Thank you, Mr. Chief But you shouldn’t rely on an inference side. They think it is different. They Justice. here, not when you have a witness who don’t want to go to court to get it re- I send a question to the desk for the is willing to come forward. There is no solved. House managers. need for inference here. It is just a need We have the assertion of absolute im- The CHIEF JUSTICE. Senator HAS- for a subpoena. munity from congressional compulsion The CHIEF JUSTICE. Thank you, SAN’s question is for the House man- for senior advisers to the President. It agers: Mr. Manager. has been asserted by virtually every Mr. THUNE. Mr. Chief Justice. Did acting Chief of Staff Mick Mulvaney The CHIEF JUSTICE. The Senator President since Nixon. They try to say: waive executive privilege in his October 17 from South Dakota. Oh, it is preposterous. It is irrelevant. press conference in which he stated that Mr. THUNE. I have a question to We don’t have to worry about that. there was ‘‘political influence’’ in the Trump Every President since Nixon, vir- administration’s decision to withhold aid to send to the desk. Ukraine? The CHIEF JUSTICE. Senator tually, has asserted that. It has only THUNE’s question is for counsel for the been addressed by two district courts— Mr. Manager JEFFRIES. Mr. Chief President: trial-level courts. The first one re- Justice, distinguished Members of the Would you please respond to the argu- jected it, and its decision was stayed Senate, I thank you for that question. ments or assertions the House managers just by the appellate court, which means Mick Mulvaney has absolutely made in response to the previous questions? the appellate court thought probably waived executive privilege. He has Mr. Counsel PHILBIN. Mr. Chief Jus- you got it wrong or, at a minimum, it never asserted executive privilege. In tice. is a really difficult question; we are not fact, as President’s counsel has ac- Thank you, Senator, for the ques- sure about that. And the second dis- knowledged, they have not asserted ex- tion. trict court decision is being litigated ecutive privilege once. President’s I haven’t read recently the case that right now. They are litigating it. And counsel has said, when we made that was cited about the missing witness when Charlie Kupperman went to point during our opening arguments, rule. So I can’t say specifically what is court, they were trying to do some- that that was technically true. No, it is in it, but I am willing to bet that the thing reasonable to say: Oh, well, we true. It is not an alternate fact; it is a missing witness rule does not apply don’t want to litigate this with you; fact. You have never asserted executive when there has been a valid assertion you should just agree to be bound by privilege in connection with Mick of a privilege or other immunity for the McGahn decision. What is the say- Mulvaney’s testimony or anyone else. keeping the witness out of court. For ing? Every litigant gets his day in It was not asserted as it relates to any example, if they tried to subpoena the court. Why shouldn’t Charlie of the 17 witnesses who testified, 12 of defendant’s lawyer and the defendant Kupperman get to have his counsel whom testified publicly. said, ‘‘Wait, I have attorney-client argue that issue on his behalf? That is The other phony arguments that privilege; you can’t subpoena him,’’ what he wanted. He didn’t want to say: have been articulated, respectfully, are they are not going to be able to get an I am going to trust it to the other peo- that the House needed to vote in order adverse inference from that. ple litigating the other case. I’ve got for the subpoenas to be valid. There is That is critical because, as I have my case. I want to make the argu- nothing in the Constitution that re- gone through multiple times—and you ments. quired the full House to vote, nothing

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In Mr. Chief Justice, I send a question thereafter—after the House had voted, the Clinton case, the House did not to the desk to be asked of the House subpoenaed on November 7. Here it is. commit to any particular burden of manager. The next day, the White House re- proof. And I would recommend against The CHIEF JUSTICE. Senator BOOK- sponded. They responded with a two- including an express standard; instead, ER’s question is for the House manager: page letter dated November 8. There is like in Clinton’s, simply finding the Even if a communication or a document is no mention of executive privilege in facts and any inferences from those covered by executive privilege, that privilege the November 8 letter, but here is what facts without legal technicalities. can be overcome by showing the evidence is it does say: ‘‘The Department of Jus- It has been opined that, in the end, it important and unavailable elsewhere. On tice (the ‘‘Department’’) has advised is up to each Senator to make a judg- January 22, while this trial was underway, President Trump said, ‘‘I thought our team me that Mr. Mulvaney is absolutely ment, and I think there is much truth did a very good job. But honestly, we have immune from compelled congressional to that. Your oath holds you to a find- all the material. They don’t have the mate- testimony with respect to matters re- ing of impartial justice, and I trust rial.’’ Can you comment on whether execu- lated to his service as a senior adviser that each and every one of you is hold- tive privilege allows a President to conceal to the President.’’ ing that oath very dear to your heart information from Congress, particularly if What is interesting about this letter and will find the facts and lead to a the evidence cannot be obtained elsewhere? from Mr. Cipollone is that it doesn’t just result for our country, the Con- Mr. Manager JEFFRIES. Thank you, cite a single legal case for that out- stitution, and for a future that hope- Mr. Chief Justice, and I thank the dis- rageous proposition—a single legal fully is as free as our past has been. tinguished Senator from New Jersey case for the proposition that Mick I yield back. for his question. Mulvaney is absolutely immune. Why? The CHIEF JUSTICE. Thank you. President Trump alone has the power Because there is no law to support it. Mr. Counsel PHILBIN. Mr. Chief Jus- to assert executive privilege. As coun- The President tried to cheat, he got tice, Senators, thank you for the ques- sel admitted on Saturday, the Presi- caught, and then he worked hard to tion. dent had not formally invoked it over cover it up. I think that the Constitution makes any document requested in this im- The Senate can get to the truth. You it clear in the terms that it speaks of peachment inquiry. This has not been can get to the truth by calling wit- impeachment, all are related to the asserted as it relates to any single doc- nesses who can testify. Any privilege criminal law. It speaks of an offense. It ument. Executive privilege gives Presi- issues can be worked out by the Chief speaks of conviction. It speaks of a dent Trump a qualified form of con- Justice of the Supreme Court. The trial in saying that crimes shall be fidentiality when he does get advice American people deserve a fair trial. tried by a jury except in the case of im- from his aides in order to carry out the The President deserves a fair trial. The peachment. duties of his office. Constitution deserves a fair trial. That In both that and the gravity of a As I know you are all aware, it is includes Mulvaney. That includes Presidential impeachment, which is an often the case in congressional inves- Bolton. That includes other relevant issue of breathtaking importance for tigations that a President will claim witnesses. the country and could cause tremen- executive privilege over a very small The CHIEF JUSTICE. Thank you, dous disruption to our government, subset of materials. In that case, what Mr. Manager. both counsel are in favor of traditional the executive branch usually does and The Senator from Alaska. criminal standard of proof beyond a should do is to produce everything that Ms. MURKOWSKI. Mr. Chief Justice, reasonable doubt. it can and then provide a log of docu- I send a question to the desk on behalf In the Clinton impeachment, Sen- ments in dispute or permit a private of myself and Senator YOUNG and Sen- ators—both Republicans and Demo- review of the documents that have ator CRAPO. The question is to be di- crats—repeatedly advocated in favor of rected to both parties. been contested. that standard. That is not what has occurred in this The CHIEF JUSTICE. Thank you. Senator Russ Feingold then said: case because the President has ordered The question directed to counsel for In making a decision of this magnitude, it the President and the House managers: is best not to err at all. If we must err, how- the entire executive branch to defy our The Constitution does not specify the ever, we should err on the side . . . of re- constitutionally inspired impeachment standard of proof to be used in trials of im- specting the will of the people. inquiry. Blanket defiance is what has peachment, and the Senate has not adopted Similarly, Senator Barbara Mikulski taken place, and there is no right to do a uniform standard by rule, thus, the stand- said: that. ard of proof is arguably a question for each The U.S. Senate must not make the deci- Every court that has considered the individual Senator. In the Clinton trial and sion to remove a President based on a hunch matter has asserted that the President now with President Trump, it appears that that the charges may be true. The strength cannot assert a privilege to protect his Republicans and Democrats apply different of our Constitution and the strength of our own misconduct, to protect wrong- standards depending on whether the Presi- Nation dictate that the Senate be sure be- dent is a member of their party. What stand- doing, to protect evidence that the yond a reasonable doubt. ard of proof should be used in trials of im- Constitution may have been violated. peachment—preponderance of the evidence, The preponderance standard is whol- The President cannot do it. clear and convincing, beyond a reasonable ly insufficient. That means just 50.1 In an impeachment inquiry, the con- doubt—and why? percent. You think it is a little more gressional need for information and its I think it is the turn of the House likely than not. That is not sufficient constitutional authority, of course, are managers to go first. to remove the President. Even clear at their greatest. It is imperative to in- Ms. Manager LOFGREN. Mr. Chief and convincing evidence is not. It has vestigate serious allegations of mis- Justice, Senators, there is no court to be beyond a reasonable doubt. As conduct that might constitute high case on this. The House needs strong Senator Rockefeller explained at the crimes and misdemeanors, and that is evidence, but it has never been decided time of the Clinton impeachment, that what is before you right now. beyond a reasonable doubt, as the means ‘‘it is proven to a moral cer- Let’s look at what the Supreme President’s counsel has suggested, and, tainty the case is clear.’’ That is the Court has said in circumstances that as the question notes, the Constitution standard the Senators should apply be- are closest to what we face today—in does not specify either the House’s evi- cause the gravity of the issue before U.S. v. Nixon—in the context of a dentiary burden of proof or the Sen- you would not permit applying any grand jury subpoena. The Supreme ate’s. lesser standard. Court found that President Nixon’s

VerDate Sep 11 2014 02:45 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00023 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.030 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S668 CONGRESSIONAL RECORD — SENATE January 29, 2020 generalized assertion of privilege must The CHIEF JUSTICE. The Demo- is an OLC opinion that has been pub- yield to the demonstrated need for evi- cratic leader is recognized. lished—it is online and cited in our dence in the pending trial, and the Fed- Mr. SCHUMER. Mr. Chief Justice, I trial memorandum—stating it is un- eral court here in DC has recognized send a question to the desk for both constitutional to refuse to allow execu- that Congress’s need for information the counsel for the President and the tive branch personnel to have the as- and for documents during an impeach- House managers. sistance of executive branch counsel to ment inquiry is particularly compel- The CHIEF JUSTICE. Senator SCHU- protect privileged information during ling. MER’s question reads as follows: questioning, and, therefore, it is not Turning to the facts of this matter The House Managers say the President de- valid to force them to appear without briefly, any argument that every single mands absolute immunity. The President’s that counsel. document requested by Congress is sub- counsel disputes this. Can either of you The CHIEF JUSTICE. Thank you, ject to privilege or some form of abso- name a single witness or document to which Counsel. lute immunity is absurd. There are cal- the President has given access to the House Ms. Manager LOFGREN. Mr. Chief endar invitations, scheduling emails, when requested? Justice and Senators, you know, we photographs, correspondence with out- I believe it is time for counsel for the have received nothing as part of our side parties like Rudolph Giuliani. President to go first. impeachment inquiry. These are all important pieces of evi- Mr. Counsel PHILBIN. Mr. Chief Jus- It is worth pointing out that the dence for you to consider and are not tice, I thank you and Minority Leader House committees that subpoenaed be- the types of materials subject to any SCHUMER for the question. fore the House vote had standing au- reasonable claim of executive privilege. Let me try to be clear and distin- thority under the House rules, and they If you want a fair trial, it should in- guish a couple of things. were the Oversight Committee, which volve documents. Given the nature of The House managers have said there has the standard authority to inves- these proceedings, documents like Am- was blanket defiance. That is the way tigate any matter at any time, as does bassador Bolton’s notes and Lieutenant they characterized it—that we are not the Foreign Affairs Committee. It has Colonel Vindman’s Presidential deci- going to give you anything and that the authority, under the rules of the sion memo should also be provided to that is all we said. It was just a blan- House, adopted January 11, to issue you so you can seek the truth, the ket defiance. We are not going to re- subpoenas. They did, and they were de- whole truth, and nothing but the truth. spond. fied. The CHIEF JUSTICE. Thank you, What I have tried to explain several The idea of absolute immunity has Mr. Manager. times is that that was not the Presi- never been upheld by any court, and it The Senator from Louisiana. dent’s response. There were specifically is really incomprehensible to think Mr. KENNEDY. Senator MORAN, my articulated responses to different re- that somehow this concept of absolute colleague from Kansas, and I send a quests based on different legal ration- immunity has lurked in hiding, for cen- question to the desk for counsel for the ales because there were different prob- turies, for Presidents to use it in this President. lems with different subpoenas. day. When you think of the two cases— The CHIEF JUSTICE. Thank you. One problem is that all of the sub- the Miers case and the McGahn case— The question is for counsel for the poenas up until October 31 were not the courts completely rejected the idea President: validly authorized. So those subpoenas of absolute immunity. What did Hunter Biden do for the money we said we were not going to respond On the slide, there was a decision re- that Burisma holdings paid him? to because they were not validly cently made in the McGahn case, and Ms. Counsel BONDI. Thank you for issued. It was not an assertion of exec- here is what it reads: ‘‘Stated simply, the question. utive privilege. It was not an assertion the primary takeaway from the past Mr. Chief Justice, Senators, as far as of absolute immunity. It wasn’t any- 250 years of recorded American history we know, Hunter Biden has said he ‘‘at- thing else. It was the fact that they is that Presidents are not Kings . . . ’’ tended a couple of board meetings a were not validly authorized. Those are the judge’s words, not mine. year.’’ Here is what we do know: Hun- They pointed out that, aha, we sub- ‘‘[C]ompulsory appearance by dint of a ter Biden did attend one board meeting poenaed—I think they mentioned—Act- subpoena is a legal construct, not a po- in Monaco. Now, we also heard that ing Chief of Staff Mulvaney after Octo- litical one, and per the Constitution, when Zlochevsky—the owner of ber 31. That is true, but we didn’t rely no one is above the law.’’ Burisma—fled the Ukraine, he was liv- on the fact that the subpoena was not The President is not permitted by ing in Monaco. So Hunter Biden did at- authorized. We pointed out the doc- the Constitution or by the law to as- tend a board meeting in Monaco. We trine of the absolute immunity of sen- sert any kind of absolute immunity. also know that Hunter Biden went to ior advisers to the President. This is That does not exist in America, and as Norway on a fishing trip, and he took not some blanket absolute immunity the judges pointed out, that would be his daughter and his nephew. So he for the entire executive branch. It something that a King would assert. I took two of Joe Biden’s children with doesn’t apply to all of the subpoenas am not saying that, but I will say this. him on a fishing trip to Norway with they issued. As we explained in our It is something our Founders set up our Zlochevsky. That is as much as we brief, it applies to three. There were checks and balances to prevent. No- know, other than his statement that he three people they subpoenaed as wit- body has absolute power in our system attended one or two board meetings. nesses that, on this basis alone, the of government—not the Senate and Factually, that is what he said, and President declined to make available— House, not the President, not the judi- the timeline shows that. Again, Devon Acting Chief of Staff Mulvaney, Legal ciary. This is unprecedented and just Archer was on the board with him, and Advisor to the National Security Coun- wrong as a matter of law and as a mat- then Hunter Biden remained on the cil John Eisenberg, and Deputy Na- ter of the Constitution. board. Factually, in the record, that is tional Security Adviser Kupperman, I Thank you. as much as we know that he did involv- believe, but it is in our brief. It was The CHIEF JUSTICE. Thank you. ing Burisma and Zlochevsky. those three who had immunity—a doc- The Senator from Georgia. The Norway trip was in June of 2015. trine asserted by every President since Mr. PERDUE. Thank you, Mr. Chief He remained on the board until April of Nixon. Justice. 2019. We also know that, prior to then, Then there was a different problem I send a question to the desk for both a Ukrainian court in September of 2016 with some of the subpoenas. As to some the counsel to the President and the canceled Zlochevsky’s arrest warrant. of the other witnesses who were not House managers on behalf of Senator We also know, on December 15, Vice senior advisers to the President, the CRUZ and me. President Biden called President President did not assert that they had The CHIEF JUSTICE. The question, Poroshenko. Then, in mid-January absolute immunity. Instead, those sub- on behalf of Senators CRUZ and 2017, Burisma announced all legal pro- poenas refused to allow those executive PERDUE, reads as follows: ceedings against the company and branch personnel to have executive You refused to answer the question on po- Zlochevsky had been closed. branch counsel accompany them. There litical bias. Are the House Managers refusing

VerDate Sep 11 2014 02:45 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00024 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.034 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 29, 2020 CONGRESSIONAL RECORD — SENATE S669 to tell the Senate whether or not the so- Now, counsel for the President rely more, and I keep writing more, and I called whistleblower had an actual conflict on an opinion of the Office of Legal keep refining my views. of interest? There are 7 billion people on Counsel as its justification for vio- In 1998 the issue before this Senate planet earth; almost all had no involvement was not whether a crime was required; in Biden’s quid pro quo. Are the House Man- lating the Whistleblower Protection agers unwilling to say whether the so-called Act and not transmitting the com- it was whether the crime that Clinton whistleblower was a FACT WITNESS who di- plaint to Congress. was charged with was a high crime. rectly participated in (and could face crimi- The CHIEF JUSTICE. Thank you, When this impeachment began, the nal or civil liability for) Joe Biden’s demand- Mr. Manager. issue was whether a crime was re- ing Ukraine fire the prosecutor who was in- Mr. Counsel SEKULOW. Thank you, quired. vestigating Burisma? And why did you refuse Mr. Chief Justice and Members of the Actually, 2 years earlier, in a book to transmit to the Senate the Inspector Gen- Senate. and then an op-ed, I concluded—not on eral’s transcript? Page 5 of the inspector general’s re- partisan grounds—on completely aca- It is addressed to both sides. I think, port states: ‘‘Although the inspector demic grounds that you could not im- perhaps, the House managers should go general’s preliminary review identified peach for abuse of power and that tech- first. some indicia of an arguable political nical crime was not required but crimi- Mr. Manager SCHIFF. With respect bias on the part of the Complainant—’’ nal-like behavior was required. I stand to the ICIG, the President and his al- now, that is in the actual statement. by that view. lies have tried to shift the focus to the He goes on to say ‘‘—[involving] a rival The Framers rejected maladministra- inspector general of the intelligence political candidate, such evidence does tion. That was the prime criteria for community—a highly respected vet- not change his view about the credible impeachment under British law. Re- eran of the Justice Department—in his nature of the concern,’’ or what ap- member, too, the British never im- handling of the whistleblower’s com- pears to be credible; but to argue that peached Prime Ministers. They only plaint. There was an effort to insinuate it does not include an issue of political impeached middle-level and low-level wrongdoing on the part of the whistle- bias, the inspector general himself says people. blower, and there has been an effort to that that is, in fact—at least he said So the Framers didn’t want to adopt insinuate wrongdoing on behalf of the the preliminary reviews indicate some the British approach. They rejected it inspector general. political bias. by rejecting maladministration. And The briefings that we had with the Now, there have been reports in the what is a metaphor or what is a syn- ICIG related to the unusual and prob- media that the individual may have onym for maladministration? Abuse of lematic handling of this particular worked for Joe Biden when he was Vice power. And when they rejected mal- whistleblower’s complaint within the President, that he may have had some administration, they rejected abuse of executive branch, which diverts sharp- area under his watch involving power. ly from any prior whistleblower’s com- Mr. Congressman SCHIFF asked a rhe- Ukraine. plaint by anyone within the intel- I also thought it was interesting that torical question: Can a President en- ligence community. The Intelligence gage in abuse of power with impunity? Manager SCHIFF just talked about the Committee is continuing its ongoing importance of how they control the In my tradition we answer questions oversight to determine why and how process as it relates to a whistle- with questions, and so I would throw this complaint was initially concealed the question back: Can a President en- blower’s reports because of the sen- from the committee in violation of the gage in maladministration with impu- sitive nature of those. Do we not think law. nity? ICIG Michael Atkinson continues to that the sensitive nature of informa- That is a question you might have serve admirably and independently as tion shared by the President’s most asked James Madison had you been at he is supposed to do. senior advisers should not be subject to the Constitutional Convention. And he Like the Senate Intelligence Com- the same type of protections? Of would say: No. A President can engage mittee, the House Intelligence Com- course, it has to be. in that with impunity, but it is not an Thank you. mittee does not release the transcripts impeachable crime. Maladministration The CHIEF JUSTICE. Thank you, of its engagements with inspectors gen- is not impeachable, and abuse of power eral on sensitive matters because doing counsel. The Senator from West Virginia. is not impeachable. so risks undercutting an important The issue is not whether a crime is Mr. MANCHIN. Mr. Chief Justice, I mechanism for the committee to con- required. The issue is whether abuse of send a question to the desk for both duct oversight. The transcripts remain power is a permissible constitutional the President’s counsel and the House properly classified, in conformity with criteria, and the answer from the his- IC requirements, to protect sensitive managers. The CHIEF JUSTICE. The question tory is clearly, unequivocally no. If information. The ICIG made every ef- that had ever been put to the Framers, from Senator MANCHIN reads as follows: fort to protect the whistleblower’s they would have rejected it with the identity and briefed us with the expec- The Framers took the words ‘‘high crimes and misdemeanors’’ straight out of English same certainty they rejected mal- tation that it would not be made pub- law, where it had been applied to impeach- administration. lic, and we are trying to honor that ex- ments for 400 years before our Constitution The CHIEF JUSTICE. Thank you, pectation. was written. The Framers were well aware counsel. With respect to allegations of bias on when they chose those words that Par- Mr. Manager NADLER. Mr. Chief the part of the whistleblower, let me liament had impeached officials for ‘‘high Justice, Members of the Senate, it was just refer you to the conclusion of the crimes and misdemeanors’’ that were not in- always understood that the prime pur- inspector general’s, which is, after ex- dictable as crimes. The House has repeatedly pose of impeachment was to deal with amining the whistleblower, the whis- impeached, and the Senate has convicted, of- abuse of power. tleblower’s background, any potential ficers for ‘‘high crimes and misdemeanors’’ The first draft at the Constitutional allegations of any bias, the whistle- that were not indictable crimes. Even Mr. Dershowitz said in 1998 that an impeachable Convention said ‘‘treason or bribery.’’ blower drew two conclusions: The whis- offense ‘‘certainly doesn’t have to be a That was rejected because it wasn’t in- tleblower was credible. Meaning, given crime.’’ What has happened in the past 22 clusive enough. whatever issue—perceived or real—the years to change the original intent of the Somebody put—Mason proposed mal- inspector general found that whistle- Framers and the historic meaning of the administration. Found too vague—so blower to be credible. The inspector term ‘‘high crimes and misdemeanors?’’ they said ‘‘high Crimes and Mis- general also found that the whistle- It is counsel for the President’s turn. demeanors.’’ That was a well-under- blower’s complaint was urgent and Mr. Counsel DERSHOWITZ. Mr. Chief stood term in English law. It was a that it needed to be provided to Con- Justice, Senators, what happened since well-understood term in the Warren gress. The inspector general further 1998 is that I studied more, did more re- Hastings impeachment going on in found that it was withheld from Con- search, read more documents, and like England right then, and it meant, pri- gress in violation of the law, in viola- any academic, altered my views. That marily, abuse of power. That is the tion of the statute. For that, he is is what happens. That is what profes- main meaning of high crimes and mis- being attacked. sors ought to do, and I keep reading demeanors.

VerDate Sep 11 2014 02:45 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00025 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.036 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S670 CONGRESSIONAL RECORD — SENATE January 29, 2020 Charles Pinckney said those ‘‘who be- withhold any money until the Ukrainians In the first meeting, the Ukrainians have amiss or betray their public did anything related to the server. The only naturally wanted to raise the topic of trust’’; Edmund Randolph, ‘‘mis- reasons we were holding the money was be- getting the White House meeting that cause of concern about lack of support from President Zelensky so desperately behaves’’; I quoted Justice Story the other nations and concerns over corruption. other day. Every impeachment in Multiple times during the more-than 30 wanted. American history has been for abuse of minute briefing where I took over 25 ques- And after raising the issue, at some power in one form or another. tions, I referred to President Trump’s inter- point Ambassador Sondland said: No, The idea that you have to have a est in rooting out corruption in Ukraine, and no, we have got a deal. They will get crime—bribery is right there in the ensuring taxpayer dollars were spent respon- the meeting once they announce the Constitution: ‘‘Treason, Bribery or sibly and appropriately. There was never any investigations. other . . . crimes.’’ Bribery was not connection between the funds and the And this is the point where Ambas- Ukrainians doing anything with the server— sador Bolton stiffened. You can look up made a statutory crime until 1837. So this was made explicitly obvious by the fact there couldn’t have been impeach- that the aid money was delivered without Dr. Hill’s exact words. I am para- ment? any action on the part of the Ukrainians re- phrasing here. But this is the point The fact of the matter is that crimes garding the server. where Ambassador Bolton stiffens and and impeachment are two different There was never any condition on the flow he ends the meeting. things. Impeachments are not punish- of the aid related to the matter of the DNC Hill then goes, follows Sondland and ments for crimes. Impeachments are server. the delegation into another part of the protections of the Republic against a Then, on January 27, which was Mon- White House where the meeting con- President who would abuse his power, day, there was a statement from Bob tinues between the American delega- who would aggrandize power, who Driscoll, who is Mr. Mulvaney’s attor- tion and Ukrainian delegation, and would threaten liberty, who would ney. Now I will read it in its full. there it is even more explicit, because threaten the separation of powers, who The latest story from the New York Times, in that second meeting, Sondland would threaten the powers of the Con- coordinated with a book launch, has more to brings up the Bidens specifically. do with publicity than the truth. John gress, who would try to arrogate power Hill then goes to talk to Bolton and Bolton never informed Mick Mulvaney of informs him what has taken place in to himself. any concerns surrounding Bolton’s purported That is why punishment upon convic- August conversation with the President. Nor the following meeting, and Bolton’s re- tion for impeachment only goes to re- did Mr. Mulvaney ever have a conversation sponse is: Go talk to the lawyers, and moval from office. You can’t put him with the President or anyone else indicating let them know I don’t want to be part in jail, as you could for a crime. You that Ukrainian military aid was withheld in of this drug deal that Sondland and can’t fine him, as you could for a exchange for a Ukrainian investigation of Mulvaney have got cooking up. Burisma, the Bidens, or the 2016 election. So at that point, that specific con- crime. Furthermore, Mr. Mulvaney has no recollec- They are two different things. An im- versation is a reference to the quid pro tion of any conversation with Mr. Giuliani quo over the White House meeting. And peachable offense need not be a crime, resembling that reportedly described in Mr. and a crime need not be an impeach- Bolton’s manuscript, as it was Mr. we know, of course, from other docu- able offense—two completely different Mulvaney’s practice to excuse himself from ments, the testimony about the quid tests understood that way throughout conversations between the President and his pro quo, about the White House meet- American history and by all scholars— personal counsel to preserve any attorney- ing, and all the efforts by Giuliani to all scholars—in our history except for client privilege. make sure that the specific investiga- Mr. Dershowitz. So I wanted to read those statements tions aren’t mentioned in order to The CHIEF JUSTICE. Thank you, in full so that everyone had the full make this happen. Mr. Manager. context. But don’t take my word for it. We The Senator from North Carolina. Even after Mr. Philbin referenced the can bring in John Bolton and ask him Mr. BURR. Mr. Chief Justice, I send a statement after the press conference, exactly what he was referring to when question to the desk for counsel to the the House managers again came back he described the drug deal. President. and said Mr. Mulvaney indicated or ad- Now, did Bolton describe and discuss The CHIEF JUSTICE. Senator BURR mitted there was a quid pro quo. That this drug deal with the President? asks: is not true. Well, it certainly appears from what we If Mr. Mulvaney misspoke or if the We have seen the House managers repeat- know about this manuscript that they edly play video clips of Acting Chief of Staff words were garbled, he corrected it did talk about the freeze on aid. Mick Mulvaney’s press conference, in which that day and has been very clear. And whether John Bolton understood they claim he said there was a quid pro quo. Thank you. Thank you, Mr. Chief and at what point he understood that How do you respond to the House managers’ Justice. the drug deal was even bigger and more allegation that Mr. Mulvaney supported The CHIEF JUSTICE. Thank you, pernicious than he thought, that it in- their claims in his press conference? counsel. volved not just a meeting but involved Mr. Counsel PURPURA. Mr. Chief The Senator from Maryland. the military aid, there is one way to Justice, Members of the Senate, Sen- Mr. VAN HOLLEN. Mr. Chief Justice, find out. ator, thanks for the question. I send a question to the desk to the And I would add this in terms of Mr. We respond as Mr. Philbin did earlier President’s counsel and the House Mulvaney— today with that, which is Mr. managers. The CHIEF JUSTICE. Thank you, Mulvaney has issued two statements— The CHIEF JUSTICE. Senator VAN Mr. SCHIFF. one after his press conference and then HOLLEN’s question is to both parties Mr. Manager SCHIFF. Maybe I will one Monday after the New York Times and the House managers will go first: add it later. article concerning Mr. Bolton’s alleged What did National Security Advisor John Mr. HOEVEN. Mr. Chief Justice. manuscript—alleged statements in his Bolton mean when he referenced ‘‘whatever The CHIEF JUSTICE. The Presi- drug deal Sondland and Mulvaney are cook- dent’s counsel has 21⁄2 minutes. manuscript. ing up on this’’ and did he ever raise that So I think the easiest thing is just to Mr. Counsel PHILBIN. Thank you, issue in any meeting with President Trump? Mr. Chief Justice. Thank you, Senator, read them to understand what he said Mr. Manager SCHIFF. Mr. Chief Jus- and to put it into context for everyone for the question. tice, Senators, when John Bolton—and The question asks about what Am- in the Chamber. this is according to Dr. Hill’s testi- bassador Bolton meant in a comment This is from—this is the day of the mony—brought up the drug deal, it was that is purported hearsay by someone press conference. in the context of a July 10 meeting at else saying what he supposedly said. Once again, the media has decided to mis- the White House. There were two meet- But what we know is that there are construe my comments to advance a biased ings that day. There was a meeting and political witch hunt against President conflicting accounts of the July 10 Trump. Let me be clear, there was abso- that Ambassador Bolton was present meeting at the White House. lutely no quid pro quo between Ukrainian for, and then there was a follow-on Dr. Hill says that she heard Ambas- military aid and any investigation into the meeting after Ambassador Bolton sador Sondland say one thing. He de- 2016 election. The president never told me to abruptly ended the first meeting. nies that he said that. Dr. Hill says she

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It is a time refusing to provide to the Intel- clude abuse, corruption, misrule, dis- hearsay report of something he said ligence Committee. That material has honesty, misuse of office, and mis- about a meeting that he wasn’t in, been gathered. We know that it exists. behavior. characterized in some way, and I am But the NSA has been advised not to Even Professor Nikolas Bowie, a Har- not going to speculate about what he provide it. vard professor who was in favor of im- meant by that. Now the Director says that this is peachment, so this is an admission The CHIEF JUSTICE. Thank you. the Director’s decision, but neverthe- against interest by him—he is in favor The Senator from North Dakota. less there is a body of intelligence that of impeachment—he says abuse of Mr. HOEVEN. Thank you, Mr. Chief is relevant to the requests that we power is the same as misconduct in of- Justice. I have a question for myself have made that is not being provided. fice, and he says that his research leads and also for Senator PORTMAN and Sen- That raises a very different concern him to conclude that a crime is re- ator BOOZMAN. It is for the President’s than the one before this body, and that quired. counsel, and I am sending it to the is, are now other agencies like the in- By the way, the Congressman was desk. telligence community that we require just completely wrong when he said I The CHIEF JUSTICE. The question to speak truth to power, that we re- am the only scholar who supports this from the Senators is as follows: quire to provide us with the best intel- position. In the 19th century, which In September of 2019, the security assist- ligence, now also withholding informa- was closer in time to when the Framers ance aid was released to Ukraine. Yet, the tion at the urging of the administra- wrote, Dean White of Columbia Law House managers continue to argue that tion? That is, I think, a deeply con- School wrote that ‘‘the weight of au- President Trump conditioned the aid on an cerning and new phenomenon. That is a thority’’—by which he meant the investigation of the Bidens. Did the Ukrain- ian President or his government ultimately problem that we had previously with weight of scholarly authority and the meet any of the alleged requirements in other Departments that have been part weight of judicial authority—this was order to receive the aid? of the wholesale obstruction, but now in 1867—‘‘the weight of authority is in Mr. Counsel PURPURA. Mr. Chief it is rearing its ugly head with respect favor of requiring a crime.’’ Justice Justice. to the IC. Curtis came to the same conclusion. Thanks, Senator, for the question. But the shorter answer to the ques- Others have come to a similar conclu- The very short answer is no. I think tion of, apart from Jennifer Williams, sion. that is fair. I think we demonstrated in are there other relevant materials? The You ask what happened between 1998 our presentation on Friday and Mon- answer is yes, and I would encourage and the current time to change my day that the aid was released. The aid that you and we work together to find mind. What happened between the 19th flowed. There was a meeting at the out how you might access them. century and 20th century to change the The CHIEF JUSTICE. Thank you, U.N. General Assembly. There was a minds of so many scholars? Let me tell Mr. Manager. meeting previously scheduled in War- you what happened. What happened is The majority leader. saw, precisely as President Zelensky that the current President was im- Mr. MCCONNELL. Mr. Chief Justice, suggested, and there was never any an- peached. the next two questions—one from each If, in fact, President Obama or Presi- nouncement of any investigations un- side—would be the last before we break dertaken regarding the Bidens, dent Hillary Clinton would have been for dinner. I would ask that following impeached, the weight of current schol- Burisma, the 2016 election, no state- the next two questions, the Senate ments made, and no investigations an- arship would clearly be in favor of my stand in recess for 45 minutes. position because these scholars do not nounced or begun by the Ukrainian The CHIEF JUSTICE. Thank you. Government. pass the ‘‘shoe on the other foot’’ test. The Senator from Alabama. These scholars are influenced by their The CHIEF JUSTICE. Thank you, Mr. SHELBY. I send a question to the own bias, by their own politics, and counsel. desk. their views should be taken with that The Senator from Virginia. The CHIEF JUSTICE. Thank you. Mr. WARNER. Mr. Chief Justice, I Senator SHELBY’s question is di- in mind. They simply do not give objec- send a question to the desk for the rected to counsel for the President: tive assessments of the constitutional House managers. How does the noncriminal ‘‘abuse of history. The CHIEF JUSTICE. Senator WAR- power’’ standard advanced by the House Professor Tribe suddenly had a rev- NER’s question is: Managers differ from ‘‘maladministration’’— elation himself. At the time Clinton Do you know about additional information an impeachment standard rejected by the was impeached, he said: Oh, the law is related to Russia disseminating President Framers? Where is the line between such an clear. You cannot—you cannot—charge Trump’s or Rudolph Giuliani’s conspiracy ‘‘abuse of power’’ and a policy disagreement? a President with a crime while he is a theories? Should the Senate have this infor- Mr. Counsel DERSHOWITZ. Mr. Chief sitting President. mation before we deliberate on the Articles Justice, I will address this. Now we have our current President. of Impeachment? Senators, thank you very much for Professor Tribe got woke, and with no Mr. Manager SCHIFF. Mr. Chief Jus- that question because that question I apparent new research, he came to the tice, Senators, I think there are three think hits the key to the issue that is conclusion: Oh, but this President can categories of relevant material here. before you today. be charged while sitting in office. The first, we do have access to, and When the Founders rejected mal- That is not the kind of scholarship that is the supplemental testimony of administration—and recall that it was that should influence your decision. Jennifer Williams, and I would encour- introduced by Mason and rejected by You can make your own decisions. age you all to read it. I think it sheds Madison on the ground that it would Go back and read the debates, and you light very specifically on the Vice turn our new Republic into a par- will see that I am right that the Fram- President and what he may or may not liamentary democracy where a Prime ers rejected vague, open-ended cri- know vis-a-vis this scheme. So I would Minister—in this case, a President— teria—abuse of power. encourage you to read that submission. can be removed at the pleasure of the And what we had was the manager There was a second body of intel- legislature. making a fundamental mistake again. ligence that the committees have been Remember, too, that in Britain, im- She gave reasons why we have im- provided that is relevant to this trial peachment was not used against the peachment. Yes, we feared abuse of that you should also read, and we Prime Minister, and neither was a vote power. Yes, we feared criteria like mal- should figure out the mechanism that of no confidence; it was used against administration. That was part of the would permit you to do so because it is lower level people. reason. We feared incapacity. But none

VerDate Sep 11 2014 02:45 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00027 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.038 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S672 CONGRESSIONAL RECORD — SENATE January 29, 2020 of those made it into the criteria be- thing that takes place after a jury is try at war as a thank you for that ad- cause the Framers had to strike a bal- sworn in is the government makes its versary allowing him to build a Trump ance. Here are the reasons we need im- opening statement, the defense makes Tower in a country. OK, that may not peachment, yes. Now, here are the rea- theirs, and then begins the calling of be criminal, but are we really going to sons we fear giving Congress too much witnesses. say that we are going to have to permit power. So we strike a balance. How did I do want to take this opportunity to a President of the United States to they strike it? Treason, a serious respond to Professor Dershowitz’ argu- withhold military aid as a thank you crime; bribery, a serious crime; or ments while they are fresh. You can for a business proposition? other high crimes and misdemeanors— say a lot of things about Alan Now, counsel acknowledges that a crimes and misdemeanors akin to trea- Dershowitz, but you cannot say he is crime is not necessary but something son and bribery. That is what the unprepared. He is not unprepared akin to a crime. Well, we think there is Framers intended. They didn’t intend today. He was not unprepared 21 years a crime here of bribery or extortion— to give Congress a license to decide ago. And to believe that he would not conditioning official acts for personal whom to impeach and whom not to im- have read 21 years ago what Mason had favors. That is bribery. It is also what peach on partisan grounds. to say or Madison had to say or Ham- the Founders understood as extortion. I read you a list of 40 American ilton had to say—I am sorry, I don’t And you cannot argue—even if you Presidents who have been accused of buy that. I think 21 years ago he under- argue, well, under the modern defini- abuse of power. Should every one of stood that maladministration was re- tion of bribery, you have got to show them have been impeached? Should jected but so was a provision that con- such and such—you cannot plausibly every one of them have been removed fined the impeachable offenses to trea- argue that it is not akin to bribery. It from office? It is too vague a term. son and bribery alone was rejected. is bribery. But it is certainly akin to Reject my argument about crime. I think the Alan Dershowitz from 21 bribery. Reject it if you choose to. Do not reject years ago understood that, yes, while That is the import of what they my argument that abuse of power you can’t impeach for a policy dif- would argue—that, no, the President would destroy—destroy—the impeach- ference, you can impeach a President has a constitutional right. Under arti- ment criteria of the Constitution and for abuse of power. That is what he cle II, he can do anything he wants. He turn it, in the words of one of the Sen- said 21 years ago. Nothing has changed can abuse his office and do so sacri- ators at the Johnson trial, to make since then. ficing national security, undermining every Member of the Senate, every I don’t think you can write off the the integrity of the elections, and Member of Congress, be able to define consensus of constitutional opinion by there is nothing Congress can do about it. it from within their own bosom. saying they are all Never Trumpers. The CHIEF JUSTICE. Thank you, We heard from the other side that All the constitutional law professors— Mr. Manager. every Senator should decide whether in fact, let’s play a snippet from Pro- RECESS you need proof beyond a reasonable fessor Turley, who was in the House de- The CHIEF JUSTICE. We are in re- doubt or proof by a preponderance. fending the President, and see what he cess. Now we hear that every Senator should had to say recently. (Text of Videotape presentation:) There being no objection, at 6:32 decide on abuse of power. p.m., the Senate, sitting as a Court of The CHIEF JUSTICE. Thank you, Professor TURLEY. Abuse of power, in my view, is clear. You can impeach a President Impeachment, recessed until 7:25 p.m.; counsel. whereupon the Senate reassembled Mr. Counsel DERSHOWITZ. Thank for abuse of power and you can impeach a when called to order by the CHIEF JUS- you, Mr. Chief Justice. President for noncriminal conduct. Mr. Manager SCHIFF. We can’t argue TICE. The CHIEF JUSTICE. The Senator The CHIEF JUSTICE. The Senate plausibly that his position is owing to from Maryland. will come to order. some political bias, right? Just a few Mr. CARDIN. Mr. Chief Justice, I Ms. MCSALLY. Mr. Chief Justice. have a question on behalf of Senator weeks ago, he was in the House arguing The CHIEF JUSTICE. The Senator MARKEY and myself, and I send it to a case for my GOP colleagues that the from Arizona. the desk. President shouldn’t be impeached. Ms. MCSALLY. I send a question to The CHIEF JUSTICE. Thank you. Now, he did say: Well, if you can ac- the desk on behalf of myself and Sen- The question is as follows: tually prove these things, if you can ators SCOTT of Florida, HAWLEY, and Supreme Court Justice Byron White, in a prove—as, indeed, we have—that the HOEVEN. concurring opinion in Nixon v. United States President abused his power by condi- The CHIEF JUSTICE. Thank you. (1993), acknowledged that the Senate ‘‘has tioning military aid to help his reelec- The question is for counsel for the very wide discretion in specifying impeach- tion campaign, yes, that is an abuse of President from Senator MCSALLY, Sen- ment trial procedures,’’ but stated that the power. You can impeach with that kind ator SCOTT from Florida, Senator Senate ‘‘would abuse its discretion’’ if it of abuse of power, and that is exactly HAWLEY, and Senator HOEVEN: were to ‘‘insist on a procedure that could not what we have here. Chairman SCHIFF just argued that ‘‘we be deemed a trial by reasonable judges.’’ If We are not required to leave our com- think there’s a crime here of bribery or ex- the Senate does not allow for additional evi- tortion,’’ or ‘‘something akin to bribery.’’ Do dence and the testimony of key witnesses mon sense at the door. If we are to in- the articles of impeachment charge the with firsthand knowledge of President terpret the Constitution now as saying President with bribery, extortion, or any- Trump’s actions and intentions, would a that a President can abuse their thing akin to it? Do they allege facts suffi- ‘‘reasonable judge’’ conclude these pro- power—and I think the professor sug- cient to prove either crime? If not, are the ceedings constitute a constitutionally fair gested before the break that he can House Managers’ discussion of crimes they trial? abuse his power in a corrupt way to neither alleged nor proved appropriate in Mr. Manager SCHIFF. I think the an- help his reelection and you can’t do this proceeding? swer is no. I don’t know that we need anything about it—you can’t do any- Mr. Counsel PHILBIN. Mr. Chief Jus- to look to the words of a prior Justice thing about it because if he views it as tice, Senators, thank you for that to tell us that a trial without witnesses in his personal interest, that is just question. is not really a trial. It is certainly not fine. He is allowed to do it. No, the Articles of Impeachment do a fair trial. If the House moves forward None of the Founders would have ac- not charge the crime of bribery, extor- with impeachment and it comes before cepted that kind of reasoning. In fact, tion, or any other crime. And that is a the Senate and wants to call witnesses the idea that the core offense that the critical point because, as the Supreme and wants to make its case and is told Founders protected against—that core Court has explained, ‘‘No principle of ‘‘Thou shalt not call witnesses,’’ that is offense is abuse of power—is beyond procedural due process is more clearly not a fair trial. the reach of Congress through im- established than that of notice of the I think the American people under- peachment would have terrified the specific charge, and a chance to be stand that without reading the case Founders. I mean, you can imagine any heard in a trial of the issues raised by law. They go to jury duty themselves number of abuses of power—a President that charge . . . are among the con- every year, and they see that the first who withholds aid from another coun- stitutional rights of every accused.’’

VerDate Sep 11 2014 23:41 Feb 11, 2020 Jkt 099060 PO 00000 Frm 00028 Fmt 4624 Sfmt 0634 E:\RECORD20\JANUARY\S29JA0.REC S29JA0 sradovich on DSKJLST7X2PROD with CONG-REC-ONLINE January 29, 2020 CONGRESSIONAL RECORD — SENATE S673 That was the Supreme Court in Cole v. there is bribery and extortion is totally a false narrative that we know is un- Arkansas. unacceptable. It is not permissible, and true about interference in our election. The Court has also explained that for this body should not consider those ar- That is why we are here. And it real- over 130 years, a court cannot permit— guments. They are not permissible ly would help, I believe, the situation if it has been the rule that ‘‘a court can- bounds for argument. They are not in- the Attorney General, perhaps—the De- not permit the defendant to be tried on cluded in the Articles of Impeachment, partment of Justice has been pretty si- charges that are not made in the in- and they should be ignored. lent—would issue a ruling or an opin- dictment against him.’’ That is the Thank you. ion about any person of authority, es- rule in criminal law, and it is also the The CHIEF JUSTICE. Thank you, pecially the President of the United case for impeachments. counsel. States, using or abusing that authority It is the House’s responsibility to The Senator from New Mexico. to invite other powers into interfering make an accusation and a specific ac- Mr. UDALL. Thank you for the rec- in our election. cusation in Articles of Impeachment. ognition, Mr. Chief Justice. Mr. Chief So, Mr. Chief Justice, I will just close The House had the opportunity to do Justice, I have sent a question to the my remarks as I began them. Let us that, and they did that. The charges desk. I am joined in this question by stay focused. This doesn’t have any- that they put in the articles were Senators BLUMENTHAL, LEAHY, and thing to do with the President’s chil- abuse of power on a vague standard WHITEHOUSE. dren or the Bidens’ children. This is that they made up and obstruction of The CHIEF JUSTICE. Thank you. about the President’s wrongdoing. Congress. They put some discussion The question from Senator UDALL, Thank you. about other things in a House Judici- joined by Senators BLUMENTHAL, The CHIEF JUSTICE. Thank you. ary Committee report, but they did not LEAHY, and WHITEHOUSE, to the House The Senator from Idaho. put that in the Articles of Impeach- managers: Mr. CRAPO. Mr. Chief Justice, on be- ment. The President’s counsel has argued that half of myself and Senators RISCH, And if this were a criminal trial in an Hunter Biden’s involvement with Burisma CRUZ, GRAHAM, BRAUN, MORAN, and created a conflict of interest for his father ordinary court and Mr. SCHIFF had BOOZMAN, I send a question to the desk Joe Biden. President Trump, the Trump or- done what he just did on the floor here for the counsel for the President. ganization, and his family, including those The CHIEF JUSTICE. The question and start talking about crimes of brib- who serve in the White House, maintain sig- ery and extortion that were not in the nificant business interests in foreign coun- from Senator CRAPO and the other Sen- indictment, it would have been an tries and benefit from foreign payments and ators for the counsel for the President: automatic mistrial. We would all be investments. By the standard the President’s Does the evidence in the record show that done now, and we could go home. Mr. counsel has applied to Hunter Biden, should an investigation into the Burisma-Biden SCHIFF knows that because he is a Mr. Kushner and Ms. Trump’s conflicts of in- matter is in the national interest of the former prosecutor. terest with foreign governments also come United States and its efforts to stop corrup- under investigation? tion? It is not permissible for the House to come here, failing to have charged— Mrs. Manager DEMINGS. Mr. Chief Mr. Counsel PHILBIN. Mr. Chief Jus- failing to have put in Articles of Im- Justice, and to the Senators, thank tice, Senators, thank you for that peachment any crime at all, and then you so much for that question. Let me question. And the straightforward an- to start arguing that, actually, oh, we just preface what I am about to say swer is, yes, the evidence does show think there is some crime involved, with this statement: This has been a that it would be in the interest of the and, actually, we think we actually tough few days. It has been a trying United States. In fact, the evidence on proved it, even though we provided no time for each of us and for our Nation. that point is abundant. notice we were going to try to prove But I just want to say this in re- Here is what we know: Hunter Biden that. sponse to the question that has been was appointed to the board of an en- It is totally impermissible. It is a posed. I stand before you as the mother ergy company in Ukraine without any fundamental violation of due process. of three sons. I am sure that many of apparent experience that would qualify Scholars have pointed out those rules you in this Chamber have children— him for that position. He was ap- apply equally in cases of impeachment. sons and daughters—and grandchildren pointed shortly after his father, the Charles Black and Philip Bobbitt ex- that you think the world of. My chil- Vice President, became the Obama ad- plained in their work ‘‘Impeachment: A dren’s last name is Demings. So, when ministration’s point man for policy on Handbook’’ that is regarded as one of they go out to get a job, I wonder if Ukraine. the authorities—collecting sources of there are people who associate my sons We know that his appointment raised authority on impeachments: with their mother and their father. several red flags at the time. Chris I just believe, as we go through this Heinz, the stepson of the then-Sec- The senator’s role is solely one of acting on the accusations (Articles of Impeach- very tough, very difficult debate about retary of State, severed his business re- ment) voted by the House of Representa- whether to impeach and remove the lationship with Hunter citing Hunter’s tives. The Senate cannot lawfully find the President of the United States, that we lack of judgment in joining the board president guilty of something not charged by stay focused. The last few days we have of that company, Burisma, because the House, any more than a trial jury can seen many distractions. Many things Burisma was owned by an oligarch who find the defendant guilty of something not have been said to take our minds off of was repeatedly under investigation for charged in the indictment. the truth, off of why we are really here. corruption, for money laundering, and So what Manager SCHIFF just at- In my former line of work, I used to other offenses. tempted here was totally improper. It call it working with smoke and mir- Contemporaneous press reports spec- would have resulted in a mistrial in rors, anything that will take your at- ulated that Hunter’s role with Burisma any court in this country. There is tention off of what is painfully obvious, might undermine U.S. efforts led by his nothing that has been introduced in what is there in plain view. father then, at that time, to promote the facts that would satisfy the ele- The reason why we are here has noth- the U.S. anticorruption message in ments of the crime of extortion or brib- ing to do with anybody’s children, as Ukraine. ery either. we have talked about. The reason why The Washington Post said: ‘‘The ap- To attempt—after making their we are here is because the President of pointment of the Vice President’s son opening, after not charging anything in the United States, the 45th President, to a Ukrainian oil board looks the articles that is a crime, after not used the power of his office to try to nepotistic at best, nefarious at worst.’’ specifying any crime, after providing shake down—I will use that term be- There were other articles. There was no notice that they are going to at- cause I am familiar with it—a foreign one that reported: ‘‘The credibility of tempt to argue a crime—in the ques- power to interfere into this year’s elec- the United States was not helped by tion-and-answer session, to try to tion. In other words, the President of the news that . . . Hunter had been on change the charges that they have the United States tried to cheat and the board of the directors of Burisma.’’ made against the President of the then tried to get this foreign power, There was another article saying: United States and to say that actually this newly elected President, to spread ‘‘Sadly, the credibility of Mr. Biden’s

VerDate Sep 11 2014 23:41 Feb 11, 2020 Jkt 099060 PO 00000 Frm 00029 Fmt 4624 Sfmt 0634 E:\RECORD20\JANUARY\S29JA0.REC S29JA0 sradovich on DSKJLST7X2PROD with CONG-REC-ONLINE S674 CONGRESSIONAL RECORD — SENATE January 29, 2020 message may be undermined by the as- vestigations and to enforce the proper removal of the former prosecutor on sociation of his son with a Ukrainian anti-corruption message. that July 25 call. That is what he want- natural-gas company, Burisma Hold- Thank you. ed, not an investigation into Hunter ings, which is owned by a former gov- The CHIEF JUSTICE. Thank you, Biden. This is yet another reason you ernment official suspected of corrupt counsel. know that there is no basis for inves- practices.’’ The Senator from Illinois. tigating Vice President Biden. And it went on: Reports from the Mr. DURBIN. Mr. Chief Justice, I Can we get slide 52 up? Wall Street Journal said that activists send a question to the desk. The timing shows clearly that de- here—that is, in the Ukraine—say that The CHIEF JUSTICE. Thank you. spite the fact that this conduct oc- the U.S.’s anti-corruption message is Senator DURBIN’s question is directed curred in 2015, it wasn’t until Vice being undermined as his son receives to the House managers: President Biden began consistently money from a former Ukrainian offi- Would you please respond to the answer beating Trump in national polls in the cial who is being investigated for graft. that was just given by the President’s coun- spring of 2019 by significant margins At the same time, within the Obama sel? that the President targeted Biden. He administration, officials raised ques- Ms. Manager GARCIA of Texas. Mr. was scared of losing. The President tions. The Special Envoy for Energy Chief Justice, Senators, the President wanted to cast a cloud over a formi- Policy, Amos Hochstein, raised the sought Ukraine’s help in investigating dable political opponent. This wasn’t matter with the Vice President. Simi- the Bidens only after reports suggested about any genuine concern of wrong- larly, Deputy Assistant Secretary of Vice President Biden might enter the doing. The evidence proves that. This State Kent testified that he, too, 2020 Presidential race and would seri- was solely about the President wanting voiced concerns with Vice President ously challenge President Trump in the to make sure that he could do what- Biden’s office. polls. President Trump had no interest ever it took to make sure that he could Everyone who was asked in the pro- in Biden’s Obama-era Ukraine work in win. So he froze the critical money to ceedings before the House of Represent- 2017 or 2018 when Biden was not run- Ukraine to coerce Ukraine to help him atives agreed that there was at least an ning against him for President. attack his political opponent and se- appearance of a conflict of interest None of the 17 witnesses in the im- cure his reelection. when Mr. Biden’s son was appointed to peachment inquiry provided any cred- The President of the United States the board of this company. That in- ible evidence—no credible evidence—to cannot use our taxpayer dollars to cluded Ambassador Yovanovitch, Dep- support the allegation that former Vice pressure a foreign government to do his uty Assistant Secretary Kent, Lieuten- President Biden acted inappropriately personal bidding. No one is above the ant Colonel Vindman, Jennifer Wil- in any way in Ukraine. Instead, wit- law. liams, Ambassador Sondland, Dr. Fiona nesses testified that the former Vice I yield back. The CHIEF JUSTICE. The Senator Hill, and Ambassador Taylor. They all President was carrying out official U.S. from South Carolina. agreed there was an appearance of a policy in coordination with the inter- Mr. SCOTT of South Carolina. Thank conflict of interest. national community when he advo- you, sir. Even in the transcript of the July 25 cated for the ouster of a corrupt I send a question to the desk on be- telephone call, President Zelensky Ukrainian official. half of myself, Senators CRAPO and himself acknowledged the connection In short, the allegations are simply GRAHAM, for the White House counsel. between the Biden and Burisma inci- unfounded. President Trump’s own The CHIEF JUSTICE. The question is dent, the firing of the prosecutor who handpicked special envoy to Ukraine, from Senator SCOTT of South Carolina reportedly had been looking into Ambassador Kurt Volker, knew they and other Senators to the White House Burisma, when Vice President Biden were unfounded too. He testified that counsel: openly acknowledged he leveraged a he confronted the President’s attorney, House managers claim that the Biden/ billion dollars in U.S. loan guarantees Mr. Giuliani, about these conspiracy Burisma affair has been debunked. What to make sure that that particular pros- theories and told him that ‘‘it is sim- agency within the government or inde- ecutor was fired. He openly acknowl- ply not credible to me that Joe Biden pendent investigation led to the debunking? edged it was an explicit quid pro quo: would be influenced in his duties as Mr. Counsel HERSCHMANN. Mr. You don’t get a billion dollars in loan Vice President by money or things for Chief Justice, Members of the Senate, guarantees unless and until that pros- his son or anything like that. I’ve there is no evidence in the record about ecutor is fired. My plane is leaving in 6 known him a long time. He’s a person any investigation, let alone debunked, hours, he said on the tape. of integrity, and that is not credible.’’ shammed, discredited, or, as Manager And when the President, President Giuliani acknowledged that he did JEFFRIES told you tonight, phony. Trump, raised this in the July 25 call, not find one of the sources of these al- The House managers haven’t cited President Zelensky recognized that legations, a former Ukrainian pros- any evidence in the record because this related to corruption, and he said: ecutor, to be held credible. So even none exists. A couple of days ago, I ‘‘The issue of the investigation of the Giuliani knew the allegations were read to you a quote and statement case’’—and he’s referring to the case of false. from Vice President Biden dealing with Burisma—‘‘is actually the issue of Our own Justice Department con- corruption in Ukraine. What I didn’t making sure to restore the honesty, so firmed that the President never spoke tell you was he made those statements we will take care of that . . .’’ And he to the Attorney General about Ukraine before the Ukrainian Parliament di- later said in an interview that he rec- or any investigation into Vice Presi- rectly. ognized that President Trump had been dent Biden. If President Trump genu- He spoke about the historic battle of saying to him things are corrupt in inely believed that there was a legiti- corruption. He spoke about fighting Ukraine, and he was trying to explain, mate basis to request Ukraine’s assist- corruption, specifically in the energy no, we are going to change that; there ance in law enforcement investiga- sector. He spoke about no sweetheart is not going to be corruption. tions, there are specific formal proc- deals. He said oligarchs and So that explicit exchange in the July esses that he should have followed. nonoligarchs must play by the same 25 call shows that President Zelensky Specifically, he could have asked the rules: recognized that that Biden-Burisma in- DOJ to make an official request for as- Corruption siphons away resources from cident had an impact on corruption and sistance through the mutual legal as- the people. It blunts economic growth, and it anti-corruption. And so it was defi- sistance treaty. affronts the human dignity. nitely undermining the U.S. message It is worth noting, the President only Those were Vice President Biden’s on anti-corruption, and it was a per- cares about Hunter Biden to the extent words. So the real question is this. Is fectly legitimate issue for the Presi- that he is the Vice President’s son and, corruption related to the energy sector dent to raise with President Zelensky therefore, a means through which to in Ukraine run by a corrupt Ukrainian to make clear that the United States smear a political opponent. But Presi- oligarch who is paying our Vice Presi- did not condone anything that would dent Trump specifically mentioned dent’s son and his son’s business part- seem to interfere with legitimate in- Vice President Biden in asking for the ner millions of dollars for no apparent

VerDate Sep 11 2014 23:41 Feb 11, 2020 Jkt 099060 PO 00000 Frm 00030 Fmt 4624 Sfmt 0634 E:\RECORD20\JANUARY\S29JA0.REC S29JA0 sradovich on DSKJLST7X2PROD with CONG-REC-ONLINE January 29, 2020 CONGRESSIONAL RECORD — SENATE S675 legitimate reason while his father was what his father was doing? The only There has been conflicting testimony overseeing our country’s relationship problem is, that statement didn’t come about how long the Senate might be tied up with Ukraine merit any public inquiry, out until October of 2019. Only when in obtaining additional evidence. At the be- investigation, or interest? The answer the news stories started to break, only ginning of this trial, the minority leader of- fered 11 amendments to obtain additional is yes. when the House managers raised these evidence in the form of documents and depo- Simply saying it didn’t happen is ri- issues, did people start to talk about it. sitions from several federal agencies. If the diculous. With all due respect to the Tell us where we saw Joe Biden, Hun- Senate had adopted all 11 of these amend- House managers and citing to our chil- ter Biden, and John Kerry testify about ments, how long do you think this impeach- dren, the message to our children, espe- it. Tell us where you did it when you ment trial would take? cially when you oversee a corruption in did your impeachment hearings. I don’t Mr. Counsel SEKULOW. Mr. Chief trying to root it out in another coun- remember seeing that testimony. I Justice, Members of the Senate, it try, is to make sure your children don’t remember seeing the bank would take a long time. It would take aren’t benefiting from it. That is what records. We put the bank records in a long time just to get through those should be happening—not to sit there front of you. The people are entitled to motions. and say that it is OK. know exactly what was going on. But there have been 17 witnesses. We The House managers don’t deny that The CHIEF JUSTICE. Thank you, are talking about, now, additional wit- there is a legitimate reason to do an counsel. nesses that the managers have put for- investigation. They just say it was de- The Senator from Oregon. ward and that Democratic Leader bunked; it is a sham; it is delegitimate; Mr. MERKLEY. Thank you, Mr. SCHUMER has discussed. He has dis- but they don’t tell you when it hap- Chief Justice. cussed four witnesses in particular, as pened. On behalf of the Senator from New if this body—if it were to grant wit- We all remember the email that Mexico, MARTIN HEINRICH, and myself, nesses—would say: Yes, you get those Chris Heinz sent. Keep this in mind. He I have a question to send to the desk. four witnesses. And the White House is the stepson of the then-Secretary of The CHIEF JUSTICE. The question and the President’s counsel get what? State, John Kerry. He sends an official from Senator MERKLEY and other Sen- Mr. SCHUMER. Whatever you want. email to the State Department, to the ators is for counsel to the President: Mr. Counsel SEKULOW. Whatever I chief of staff to John Kerry, and special Please clarify your previous answer about want. That is what you said, Mr. SCHU- assistant. The subject is Ukraine. the Bolton manuscript. When, exactly, did MER. There is no question when you look at the first person on the President’s defense Whatever I want? Here’s what I want. that email that it is a warning shot to team first learn of the allegations in the I want ADAM SCHIFF. I want Hunter say: I don’t know what they are doing, manuscript? Secondly, Mr. Bolton’s lawyer Biden. I want Joe Biden. I want the but we are not invested in it. publicly disputes that any information in He is taking a giant step back. the manuscript could reasonably be consid- whistleblower. I want to also under- Think about the words, and remem- ered classified. Was the determination to stand there may be additional people ber the video that we saw about Hunter block its publication on the basis that it within the House Intelligence Com- Biden. What did he say? I am not going contains classified information made solely mittee that have had conversations to ‘‘open my kimono’’—I am not going by career officials, or were political ap- with that whistleblower—that I get pointees in the White House Counsel’s office, anybody we want. By the way, if we get to ‘‘open my kimono’’—when he was or elsewhere in the White House, involved? asked how much money he was mak- anybody we want, we will be here for a Mr. Counsel PHILBIN. Mr. Chief Jus- ing. In one month—in one month very long time. alone—Hunter Biden and his partner tice, Senators, to address your ques- The fact of the matter is, we are not made almost as much as every Senator tion specifically, the allegation that here to argue witnesses tonight, which, and Congressman—just in one month came out in the New York Times arti- obviously, is an undercurrent. But to alone—what you earn in a year. And cle about a conversation that is alleg- say that this is not going to extend you don’t think that merits inquiry? edly reported in the manuscript be- this proceeding—months, because un- Does anyone here think, when they tween the President and Ambassador derstand something else: Despite the, say it is a debunked investigation that Bolton and officials, lawyers in the you know, executive privilege and didn’t happen, that we wouldn’t re- White House Counsel’s Office learned other nonsense, I suspect Manager member if there was testimony of Hun- about that allegation for the first time SCHIFF—smart guy—he is going to say: ter Biden, Joe Biden, Secretary of on Sunday afternoon when the White Wait a minute, I have some speech and State John Kerry, his stepson, their House was contacted by the New York debate privileges that may be applica- business partner, his chief of staff, and Times. ble to this. special assistant? How can you tell the In terms of the classification review, I am not saying that they are. But American people it doesn’t merit in- it is conducted at the NSC. The White they may raise it. It would be legiti- quiry when our Vice President’s son is House Counsel’s Office is not involved mate to raise it. So this is a process supposedly doing this for corporate in classification review, determining that we would be—this would be the transparency in Ukraine? He is going what is classified or not classified. first of many weeks. to oversee the legal department of a I can’t state the specifics. My under- I think we have to be clear. They put Ukrainian company; he is going to help standing is that it is conducted by ca- this forward in an aggressive and fast- them. reer officials at the NSC, but it is han- paced way, and now they are saying And if you look at his statement that dled by the NSC. I am not in a position ‘‘Now we need witnesses’’—after 31 or I read to you beforehand, there is an- to give you full information on that. 32 times you said you proved every as- other part of it from October 2019. If My understanding is, it is being done pect of your case. That is what you you want to know whether he thought by career officials. But it is not being said. it dealt with outside of Ukraine in just done by lawyers in the White House He just said he did. Well, then, I Burisma—he said he was ‘‘advising Counsel’s Office. don’t think we need any witnesses. Burisma on its corporate reform initia- I hope that answers your question, Thank you. tives, an important aspect of fueling Senator. The CHIEF JUSTICE. Thank you, Burisma’s international growth and di- The CHIEF JUSTICE. Thank you, counsel. versity.’’ counsel. The Senator from New Jersey. Listen to this statement by Hunter The Senator from Alaska. Mr. MENENDEZ. Mr. Chief Justice, I Biden’s attorney: ‘‘Vibrant energy pro- Mr. SULLIVAN. Mr. Chief Justice, I send a question to the desk and refer it duction, particularly natural gas, was send a question to the desk on behalf of to the House managers. central to Ukraine’s independence and myself and Senator LANKFORD for the The CHIEF JUSTICE. The question is to stemming the tide of Vladimir President’s counsel. from Senator MENENDEZ to the House Putin’s attack on the principles of a The CHIEF JUSTICE. Thank you. managers: democratic Europe.’’ The question from Senators SUL- President Trump has maintained that he Do you think he understood, when he LIVAN and LANKFORD to the counsel for withheld U.S. security assistance to Ukraine was getting the millions of dollars, the President: because he was concerned about corruption.

VerDate Sep 11 2014 03:36 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00031 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.047 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S676 CONGRESSIONAL RECORD — SENATE January 29, 2020 Yet, his purported concern about corruption This leads us inevitably to only one nicipal traffic court proceeding. I re- did not prevent his Administration from conclusion, and that is that the Presi- mind everybody that we are talking sending congressionally-appropriated assist- dent of the United States used tax- about—under their Articles of Im- ance to Ukraine more than 45 times between payer dollars—the American people’s peachment, they are requesting the re- January 2017 and June 2019, totaling more than $1.5 billion. So why did the President money—to withhold aid from an ally at moval of the President of the United suddenly become concerned about corruption war to benefit his political campaign. States. So, you know, they are already in early 2019? Do not be distracted by Russian prop- saying in the media that their ongoing Mr. Manager CROW. Mr. Chief Jus- aganda, by conspiracy theories, by peo- investigation here—they are going to tice, Senator, thank you for the ques- ple asking you to look in other direc- continue to investigate. So are we tion. tions. That is what this is about. That going to be doing this every 3 weeks, He became concerned about corrup- will not change. The facts will con- every month except in the summer? tion supposedly in early 2019 because tinue to come out. Whether this body There is an election months away. The Vice President Biden was running for subpoenas them or not, the facts will people should have a right to vote. My election for the Presidency. That is come out. The question now is, Will colleague Pat Cipollone, the White what the overwhelming amount of the they come out in time, and will you be House counsel, said that. evidence shows because there is no the ones asking for them when you are So when I look at all of this, whether other legitimate reason, as your ques- going to be making the decision in a it is the late need of witnesses after tion points out. couple of days to sit in judgment? you prove your case, whether privileges First, the publicly released records of The CHIEF JUSTICE. Thank you, apply or not apply—Senator SCHUMER President Trump’s April 21 and 25 calls Mr. Manager. said: We get anybody we want—we The Senator from Wisconsin. would be here for a very, very long to President Zelensky never mentioned Mr. JOHNSON. Mr. Chief Justice, I time, and that is not good for the the word ‘‘corruption’’ despite the fact send a question to the desk for the United States. that the talking points for these calls President’s counsel. Thank you. prepared by his own staff listed ‘‘cor- The CHIEF JUSTICE. Thank you. The CHIEF JUSTICE. Thank you, ruption.’’ The question is from Senator JOHN- counsel. Second, in May 2019, the State De- SON for the President’s counsel: The Democratic leader is recognized. partment certified to Congress Ukraine If House Managers were certain it would had ‘‘taken substantial actions for the take months to litigate a subpoena for John Mr. SCHUMER. I have a question for purposes of decreasing corruption’’ and Bolton, why shouldn’t the Senate assume the desk. met the anti-corruption benchmarks lengthy litigation and make the same deci- The CHIEF JUSTICE. Senator SCHU- this very body established when it ap- sion as the House made—reject a subpoena MER’s question is for the House man- propriated $250 million of those funds. for John Bolton? agers: Third, by the time of the July 25 call, Mr. Counsel SEKULOW. Mr. Chief Would you please respond to the answer President Zelensky had already estab- Justice, Members of the Senate, I that was just given by the President’s coun- lished his anti-corruption bona fides, think that is precisely the point. And sel? having introduced a number of reform the fact is that if, in fact, we are to go Mr. Manager SCHIFF. I think we can bills in Ukraine. down that road of a witness or wit- all see what is going on here, and that Fourth, on July 26, the day after his nesses that had national—in the case of is, if the House wants to call witnesses, call with President Zelensky, President Ambassador Bolton, high-ranking if you want to hear from a single wit- Trump spoke to Ambassador Sondland, NSA—this is an individual that is giv- ness, if you want to hear what John who was in Ukraine. The one question ing the President advice at the highest Bolton has to say, we are going to the President asked Ambassador level. The Supreme Court has been make this endless. We, the President’s Sondland was not about corruption but very consistent on that. That is where lawyers, are going to make this end- about whether or not President privileges are at their highest level. less. We promise you, we are going to Zelensky was going to do the investiga- The presumed privilege, actually, is want ADAM SCHIFF to testify. We want tions. what the Supreme Court has said. Joe Biden to testify. Hunter Biden. We Fifth, the released aid—as your ques- And in a situation like this, I think are going to want the whistleblower. tion points out, Senator, the President we are going down a road—if the Sen- We are going to want everyone in the released the aid in 2017 and in 2018, and ate goes down this road—of a lengthy world. If you dare, if you have the un- he released it in 2019 only after having proceeding with a lot more witnesses. mitigated temerity to want witnesses gotten caught. In the words of Lieuten- And then I want to ask this question in a trial, we will make you pay for it ant Colonel Vindman and other wit- and just plant it as a thought: Is that with endless delay. The Senate will nesses, the conditions on the ground going to be the new norm for impeach- never be able to go back to its busi- had not changed. ment? You put an impeachment to- ness. So we are hearing a lot tonight about gether in a couple of weeks. We don’t That is their argument. the concerns about corruption, like what the President did. We get it How dare the House assume there Burisma, Russia, but the facts still through in a 2-day proceeding in front will be witnesses in a trial. Shouldn’t matter here. We are here for one reason of the Judiciary Committee. We wrap the House have known when they un- and one reason only: The President of it up and we send it up here and say: dertook its investigation that the Sen- the United States withheld foreign aid Now go figure it out. Because that is ate was never going to allow witnesses; that he was happy to give in the 2 prior what this is really becoming. That is that this would be the first impeach- years; that suddenly, we are to believe, what this actually is. ment trial in the history of the Repub- something changed, the conditions on So I think, if we are looking at the lic with no witnesses? the ground changed, and he had an institutional interests that are at So Mr. Sekulow wants me to testify. epiphany about corruption within a stake here, this is a very dangerous I would like Mr. Sekulow to testify week of Vice President Biden announc- precedent because what they are about his contact with Mr. Parnas or ing his candidacy. It doesn’t make any doing—what they are saying is basi- Mr. Cipollone about the efforts to im- sense. cally: We have enough to prove our plement the President’s fight on all One other thing I will say with re- case—that is what Manager Schiff subpoenas. I would like to ask ques- gard to the aid is, this assertion that says—but not really, so we really need tions about—well, I would like to ask President Trump has been the strong- more evidence—not because we need it; questions of the President and put him est supporter of Ukraine—I talked because we want it. But we didn’t want under oath. But we are not here to in- about this earlier. Let’s just assume it bad enough when we were in the dulge in fantasy or distraction; we are that to be the case, and if it is the case, House, so we didn’t get it. So now you here to talk about people with perti- as the President’s counsel has con- issue the subpoena, and then let’s duke nent and probative evidence. tended over and over again, then there it out in court and see what happens. And you know something? I trust the is, of course, no reason to withhold the It sounds like, to me, that this is— man behind me, sitting way up, whom aid, because nothing has changed. they are acting like this is some mu- I can’t see right now, but I trust him to

VerDate Sep 11 2014 03:36 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00032 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.048 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 29, 2020 CONGRESSIONAL RECORD — SENATE S677 make decisions about whether a wit- The CHIEF JUSTICE. Thank you, President Trump’s corrupt effort to nesses is material or not, whether it is Mr. Manager. cheat and solicit foreign interference appropriate to out a whistleblower or The Senator from Louisiana. in the 2020 election. not, whether to—whether a particular Mr. CASSIDY. Mr. Chief Justice, I There is a remedy for that type of passage in a document is privileged or send a question to the desk on behalf of stunning abuse of power, and that rem- not. It is not going to take months of myself and Senator RISCH, both to the edy is in the Constitution. That rem- litigation, although that is what the White House counsel and the House edy is impeachment and the consider- President’s counsel is threatening. managers. ation of removal, which is what this They are doing the same thing to the The CHIEF JUSTICE. Thank you. distinguished body is doing right now. Senate they did to the House, which is, Question from Senator CASSIDY and That is not partisan. That is not the you try to investigate the President, Senator RISCH to both parties, begin- Democratic Party’s playbook. That is you try to try the President, we will ning with the President’s counsel first: not the Republican Party’s playbook. tie you and your entire Chamber up in We saw a video of Mr. NADLER saying: That is the playbook in a democratic knots for weeks and months. And you ‘‘There must never be a narrowly voted im- republic given to us in a precious fash- know something? They will if you let peachment or an impeachment supported by ion by the Framers of the Constitution. them. one of our major political parties and op- The impeachment in this instance, of You don’t have to let them. You can posed by the other. Such an impeachment course, and the consideration of re- subpoena John Bolton. You can allow will lack legitimacy, will produce divisive- moval is necessary because President the Chief Justice to make a determina- ness and bitterness in our politics for years to come, and will call into question the very Trump’s conduct strikes at the very tion in camera whether something is legitimacy of our political institutions.’’ heart of our free and fair elections. As relevant, whether it deals with Ukraine Given the well-known dislike of some House North Carolinian delegate William or Venezuela, whether it is privileged Democrats for President Trump and the stat- Davie noted at the Constitutional Con- or it isn’t, whether the privilege is ed desire of some to impeach before the vention, ‘‘If he be not impeachable being misapplied to hide criminality or President was inaugurated, and the strictly whilst in office, he will spare no efforts wrongdoing. We don’t have to go up partisan vote in favor of impeachment, do or means whatsoever to get himself re- and down the courts; we have a per- the current proceedings typify that which elected.’’ fectly good Chief Justice sitting right Mr. NADLER warned against 20 years ago? The Framers of the Constitution un- behind me who can make these deci- Mr. Counsel PHILBIN. Mr. Chief Jus- derstood that perhaps this remedy sions in real time. tice, Senators, thank you for the ques- would one day be necessary. That is So don’t be thrown off by this claim: tion. The simple answer is yes. These why we are here right now. Oh, if you even think about it, we are are exactly the sort of proceedings that The American people should decide going to make you pay with delays like Manager NADLER warned against 20 an American election, not the Ukrain- you have never seen. We are going to years ago. It was a purely partisan im- ians, not the Russians, not the Chi- call witnesses that will turn this into a peachment. And it has been clear that nese—the American people. That is circus. at least some factions on the other side why this President was impeached. It shouldn’t be a circus. It should be of the aisle—the Democratic side of the That is why it is appropriate for the a fair trial. You can’t have a fair trial aisle—have been intent on finding some Democrats and the Republicans—both without witnesses. way to impeach the President from the sides of the aisle—not as partisans but I think when I was asked that ques- day he was sworn in and even before as Americans, to hold this President tion before, I answered in the affirma- the day he was sworn in, and that is accountable for his stunning abuse of tive—in the negative. You can’t have a dangerous for our country. power. fair trial without witnesses, and you To allow partisan venom and enmity The CHIEF JUSTICE. Thank you, shouldn’t presume that when a House like that to take hold and become the Mr. Manager. impeaches, the Senate trials from now norm for driving impeachments is ex- The Senator from Vermont. on will be witness-free, will be evi- actly what the Framers warned Mr. SANDERS. Mr. Chief Justice, I dence-free. That is not what the against. It is in Federalist No. 65. Ham- send a question to the desk for the Founders intended. If it was, they ilton warned against it. He warned House managers. would have made you the court of ap- against persecution by an intemperate The CHIEF JUSTICE. Thank you. peals. But they didn’t. They made you and designing majority in the House of Senator SANDERS asks the House the triers of fact. They expected you to Representatives, and that is exactly managers: hear from witnesses. They expected what the Framers did not want im- Republican lawyers have stated—on sev- you to evaluate their credibility. peachment to turn into. Yet that is eral occasions—that two people, Senator Don’t take my word for it about John clearly what it is turning into here. JOHNSON and Ambassador Sondland, were Bolton. Look, I am no fan of John Both Manager NADLER and Demo- told directly by President Trump that there was no quid pro quo in terms of holding back Bolton’s—although I like him a little cratic Leader SCHUMER, in the video that we saw, were prescient in fore- Ukraine aid in exchange for an investigation more than I used to—but you should into the Bidens. Given the media has docu- hear from him. You should want to. warning that, if we start to go down mented President Trump’s thousands of lies Don’t take General Kelly’s view for it. this road, one thing that seems to be while in office—more than 16,200 as of Janu- Make up your own mind whether you sure in Washington is that what goes ary 20—why should we be expected to believe are to believe him or Mick Mulvaney. around comes around. If it is done once that anything President Trump says has Will you believe John Bolton or the to one party, it will happen again to credibility? President? Make up your own mind. the other party and then to the other Mr. Manager SCHIFF. Well, I am not Yes, we proved our case, counsel. We party once the Office of the President quite sure where to begin with that proved it overwhelmingly. But you changes hands. Then we will be in a question except to say that if every de- chose to contest the fact that the cycle. It will get worse and worse, and fendant in a trial could be exonerated President withheld military aid to co- it will be more and more, and every just by denying the crime, there would erce an ally. You chose to contest it. President will be impeached. That is be no trial. It doesn’t work that way. You chose to make John Bolton’s testi- not what the Framers intended, and I think it is telling that when Am- mony relevant, pertinent. If you had this body shouldn’t allow it to happen bassador Sondland spoke with Presi- stipulated the President did as he is here. dent Trump, the first words out of his charged, then you might make the ar- Thank you. mouth, according to Sondland, were gument that you are making here, but The CHIEF JUSTICE. Thank you, ‘‘no quid pro quo.’’ That is the kind of you haven’t. You contested it. And now counsel. thing you blurt out when you have you want to say: But the Senate shall Mr. Manager JEFFRIES. The evi- been caught in the act and say: It was not hear from this witness. That is not dence is overwhelming that President not me. I didn’t do it. a fair trial. It is not even the appear- Trump pressured a foreign government Even then, the President couldn’t ance of fairness. You can’t have a fair to target an American citizen for per- help himself because the other half of trial without basic fairness. sonal and political gain as part of that conversation was ‘‘no quid pro

VerDate Sep 11 2014 05:38 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00033 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.046 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S678 CONGRESSIONAL RECORD — SENATE January 29, 2020 quo’’ but that Zelensky needs to go to day, we have people with firsthand The House managers a number of the mic, and what is more, he should knowledge who don’t have to rely on times have cited Nixon v. United want to—no quid pro quo but quid pro his false exculpatory. You don’t have States or—I might get it reversed quo. to rely on Mick Mulvaney’s recanting now—United States v. Nixon. It was This reminds me of something that what you all saw so graphically on TV. the case involving the President in came up earlier. Why would the Presi- How does somebody say, without a 1974. The Supreme Court determined dent—when he is on the call of July 25 doubt, this was a factor, that this is that, in that particular case, after a and knows that there are other people why he did it? balancing of interests, assertions of ex- listening, why on Earth would the By the way, Alan Dershowitz lost a ecutive privilege would have to give President engage in this kind of shake- criminal case in which he argued that way, but it did not say that there was down with others being within earshot? if a corrupt motive is only part of the just an absolute, blanket rule that any- You know, I think this question comes motive, you can’t convict. And the time there is an allegation of wrong- up in almost every criminal trial. Why court said: Oh, yes, you can. If a cor- doing or that there is an impeachment would the defendant do that? rupt motive is any part of it, you can going on in the background, that exec- Sometimes it is very hard to fathom, convict. So he has lost that argument utive privilege just disappears. That is and sometimes it is just that people before, and he makes this argument not the rule from that case. In fact, make mistakes. In this case, I think again before this court. It shouldn’t be even in that context, the Court pointed the President truly believes that he is any more availing here than it was out that there may be an absolute im- above the law. He truly believes that there. munity or privilege in the field of for- he is above the law. It doesn’t matter At the end of the day, though, there eign relations and national security, who is listening. It doesn’t matter who is no more interested party here than which is the field we are dealing with is listening. If it is good for him—I the President of the United States, and here. guess this is a version of Dershowitz’ I think we have seen he will say what- The Framers recognized that there argument—if it is good for him, it is ever he believes suits his interest. Let’s could be partisan and illegitimate im- good for the state because he is the instead rely on the evidence and rely peachments. They recognized that the state. If it helps his reelection, it is on others, and one is just a subpoena House could impeach for the wrong rea- good for America, and whatever means away. sons, but they didn’t leave the execu- he needs to effectuate his election, The CHIEF JUSTICE. Thank you, tive branch totally defenseless to that. Executive privilege and immunities whether it is withholding military aid Mr. Manager. rooted in executive privilege, such as or what have you, as long as it helps The Senator from Colorado. the absolute immunity for senior ad- him get elected, well, it is good for Mr. GARDNER. Mr. Chief Justice, I visers, still applies even in the context America because he is the state. This is send a question to the desk. of an impeachment. That is part of the why I think he is so irate when people The CHIEF JUSTICE. Thank you. checks and balances in the Constitu- come forward and blow the whistle, not The question from Senator GARDNER is tion. They don’t fall away simply be- just the whistleblower but people like for counsel to the President: cause the House says: Ah, now we want John Bolton or General Kelly. Arguments have been made that any asser- to proceed on impeachment. You might ask the question: Why do tion of protection from disclosure is indic- ative of guilt and that the House’s assertion It is necessary for the proper func- so many people who leave this adminis- of Impeachment power cannot be questioned tioning of the government and the sep- tration walk away from this President by the Executive. Is that interpretation of aration of powers for the executive with such conviction that he is under- the House’s Impeachment power consistent branch to retain that ability to protect mining our security that you cannot with the Constitution, and what protects the confidentiality interests, to protect the believe what he says? Think about this: Executive from the House abusing the Im- prerogatives of the Office of the Presi- peachment power in the future? The President’s now former Chief of dency. For any President to fail to as- Staff, General Kelly, doesn’t believe Mr. Counsel PHILBIN. Mr. Chief Jus- sert those rights and to protect them the President of the United States; he tice and Senators, thank you for that would do lasting damage to the Office believes John Bolton. question. of the Presidency for the future. I mean, can everybody be disgrun- The House managers’ assertion that I think that is a critical point to un- tled? Can it all be a matter of bias? I any effort to assert a privilege or as- derstand in that there is a danger in think we know the answer. I think we sert a legal immunity to decline dis- the legal theory that the House man- know the answer. I mean, how do you closing information is somehow a sign agers are proposing here because it believe a President to whom the Wash- of guilt is not the law. It is, actually, would do lasting damage to the separa- ington Post has documented so many fundamentally contrary to the law. tion of powers—to the structure of our false statements? The short answer is, Legal privileges exist for a reason. government—to have the idea be that, you can’t. We allow people to assert their rights. as soon as the House flips the switch I remember, early in his Presidency, It is a basic part of the American jus- that they want to start proceeding on many of us talked about how once as tice system. Asserting your rights—as- impeachment, the executive has no de- President, you lose your credibility, serting privileges and immunities to fenses and has to open every file and and once as President, your country or process rights even if it means limiting display everything. That is not the way your friends or allies around the world the information that might be turned the Framers had it in mind, because cannot rely on your word and just how over to a tribunal—is not and cannot the executive branch has to have still disruptive and dangerous it is to the be treated as evidence of guilt. its defenses for its sphere of authority country. So we can’t accept the denial. To the second part of the question, as under the Constitution. That is part of It is a false denial. to the House managers’ theory that the the checks and balances. Indeed, if you look at the Wall Street power of impeachment means that the And before I sit down, I would just Journal article that Senator JOHNSON President can’t resist any subpoena like to close by going back to the Sen- was interviewed in, when he had that that they issue pursuant to the power ator who asked the question about the conversation with Sondland and had of impeachment, it is not consistent review process in the Bolton book. I be- that sinking feeling because he didn’t with the Constitution. The Constitu- lieve I was clear about this, but I just want those two things tied together, tion gives the House the sole power of want to make 100 percent sure to the everyone understood they were tied to- impeachment, which means only that extent the Senator was asking for an gether. It was as simple as two plus the House is the only place—the only assurance that only career officials in two equals four. part of the government—that has that the NSC review it for classification re- So can you rely on a false excul- power. It doesn’t say that they have a view. patory? You can’t with this President paramount power of impeachment that I can’t make that assurance because any more than you can with any other destroys all other constitutional rights it is an NSC process, and I am not sure. accused and probably, given the Presi- or privileges or immunities. It doesn’t At the levels of the process, there dent’s track record, a lot less than mean that executive privilege suddenly might be other reviews. So I didn’t in- other accused. But at the end of the disappears. tend to give and I don’t want it to be

VerDate Sep 11 2014 03:36 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00034 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.049 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 29, 2020 CONGRESSIONAL RECORD — SENATE S679 understood as giving that assurance to And so a hypothetical that is con- like that, it sounds like the question you. trary to what the facts were here, to asks further, in terms of questions here Thank you. try to suggest that maybe there is in the trial, of admissibility of par- The CHIEF JUSTICE. Thank you, some element of bribery, that is all be- ticular evidence. It is my under- counsel. side the point. We have specific facts. standing, then, that the Presiding Offi- The Senator from Massachusetts. We have evidence that has been pre- cer—the Chief Justice—could make an Ms. WARREN. Mr. Chief Justice, I sented in the record. We have a specific initial determination if there were ob- send a question to the desk for House Article of Impeachment. It doesn’t say jections to admission of evidence, but managers and counsel to the President. bribery. It doesn’t say extortion. And that all such determinations can be The CHIEF JUSTICE. Thank you. there is no way to get that into this challenged by the Members of the Sen- The House managers will respond first case at this point because the House ate and would be subject to a vote. to this question from Senator WARREN. managers had the opportunity to frame So it would not be—I think there If Ukrainian President Zelensky called were some suggestions earlier—that we President Trump and offered dirt on Presi- their case. They had every opportunity dent Trump’s political rivals in exchange for to frame it any way they wanted be- don’t need any other courts; we don’t President Trump handing over hundreds of cause they controlled the whole proc- need anything involved with anyone millions in military aid, that would clearly ess. They controlled all the evidence else because the Chief Justice is here. be bribery and an impeachable offense. So that went in. They controlled all the That is not correct. On the subpoenas why would it be more acceptable—and some- evidence with the witnesses that were at the front end, that is not going to be how not impeachable—for the reverse, that called, and they could frame it any way something that is determined just— is, for President Trump to propose the same they wanted, and they didn’t put in with all respect, sir—just by the Chief corrupt bargain? any crime. There is no crime asserted Justice. That is something that would Mr. Manager NADLER. Bribery is ob- here. It is not part of the Articles of have to be sorted out at the courts or viously an impeachable offense. Brib- Impeachment, and it can’t be consid- by negotiation with the executive ery is contained within the accusation ered now. branch. at the House level of abuse of power. Thank you. Then, once we are here on specific We explained in the Judiciary Com- evidentiary objections, if we have a mittee report that the practice of im- The CHIEF JUSTICE. Thank you, counsel. witness and there are objections during peachment in the United States has depositions that have to be resolved, or tended to envelope charges of bribery The Senator from Kansas. Mr. MORAN. Thank you, Mr. Chief by a witness on the stand, if there are within the broader standard of other objections to particular documents— high crimes and misdemeanors. That is Justice. I submit to the desk a ques- tion on my behalf and on behalf of Sen- authentication or things like that—the the historical standard. Chief Justice could make an initial rul- The elements of bribery are clearly ator CORNYN. ing, but every one of those rulings established here. The abuse of power is The CHIEF JUSTICE. The question could be appealed to this body to vote clearly established. When the Presi- from Senator MORAN and Senator COR- by a majority vote on whether the evi- dent of the United States offers some- NYN is for counsel to the President: dence would come in or not. thing—extorts a foreign power to get a Is it true that in these proceedings that And you might have to consider benefit for himself, withholds military the Chief Justice can rule on the issue of rules, whether you are going to have aid in order to get that foreign power productions of exhibits and the testimony of the Federal Rules of Evidence apply or to do something that would help him witnesses over the objection of either the managers or the President’s counsel? Would some modified rules of evidence, and politically—that is clearly bribery, it a determination by the Chief Justice be sub- all of that would have to be sorted out. is clearly an abuse of power, and there ject to judicial review? I don’t think that we would get to is no question about it. Mr. Counsel PHILBIN. Mr. Chief Jus- the stage, then, of any determinations Now, by the way, the question was tice, Senators, thank you for the ques- in evidence here being in any way ap- raised earlier as to what the proper tion, and let me answer it this way— pealed out to the courts, but that standard of proof is. People pointed out lay out my understanding of the proc- would be a process that this body the Constitution doesn’t say. But the ess. would have to decide what would be ad- highest standard of proof is beyond a If we were going to start talking missible in evidence in the trial. reasonable doubt, and these facts have about subpoenaing witnesses, sub- Thank you. been proven not beyond a reasonable poenaing documents, having things The CHIEF JUSTICE. Thank you, doubt, beyond any doubt. come into evidence that way, the first counsel. The CHIEF JUSTICE. Thank you, The Senator from Minnesota. Mr. Manager. question would be subpoenas would have to be issued to the witnesses or Ms. SMITH. Thank you. Mr. Chief Mr. Counsel PHILBIN. Mr. Chief Jus- Justice, I send a question to the desk. tice, Senators, thank you for the ques- for the documents, and if those sub- poenas were resisted on the grounds of The CHIEF JUSTICE. Thank you. tion. The question from Senator SMITH is some privilege or immunity, then that I think what this hypothetical shows, to the House managers: what Manager NADLER shows, is this is would have to be sorted out because if the President asserted, for example, The President has stated multiple times in an effort to try to smuggle into Arti- public that his actions were perfect—yet he cles of Impeachment that do not men- the immunity of a senior adviser to the refuses to allow Bolton, Mulvaney, and oth- tion any crime the idea that there is President or an executive privilege ers to testify under oath. If the President’s some crime alleged here. There is not, over certain documents, then the Sen- actions are so perfect, why wouldn’t he allow and I went through that earlier. ate would have to determine whether it fact witnesses to testify under oath about The Articles of Impeachment specify was going to fight that assertion and what he has said publicly? a theory of the charge here that is how—through some accommodation Mr. Manager SCHIFF. Well, the short abuse of power. They do not allege the process and negotiation—or if the Sen- answer is, if the President were so con- elements of bribery or extortion. They ate were going to go to court to liti- fident that this was a perfect call and don’t mention bribery or extortion. gate that. And that whole process that those around him would agree If the House managers had wanted to would have to play out. That would be that there was nothing nefarious going bring those charges, they had to put the first stage, and that would have to on, he would want witnesses to come them in the Articles of Impeachment, be gone through anytime the President and testify. But, of course, he doesn’t. just the way a prosecutor, if he wants resisted the subpoena on the witnesses He doesn’t want his former National to put someone on trial for bribery, he or documents. That would take a Security Advisor to testify. He doesn’t has got to put it in the indictment. while. want his current Chief of Staff to tes- If you don’t, and you come to trial That is what the House managers de- tify. He doesn’t want those that were and then try to start arguing that, cided not to do in the House of Rep- heading OMB to testify. He doesn’t ‘‘well, actually, we think there is brib- resentatives. want you to hear from any of them. ery going on here,’’ that is impermis- Then, once there had been everything Now, I think that is pretty indicative sible. It is prosecutorial misconduct. resolved on a subpoena, or something that he knows what they have to say

VerDate Sep 11 2014 05:38 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00035 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.051 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S680 CONGRESSIONAL RECORD — SENATE January 29, 2020 and he doesn’t want you to hear what and in the proximity to elections—for future another witness, but you call none. they have to say. He doesn’t want you impeachments, toward the end of safe- That is another principle. to see any of the myriad of documents guarding public trust by putting guardrails And I think the reality is that what that he has been withholding from this on both parties? Professor Dershowitz said is true. I body as he did from the House. Mr. Counsel CIPOLLONE. Thank think, when you are thinking about But I also want to address the last you, Mr. Chief Justice, Members of the impeachment, as much as we can as question, if I could. Is the Chief Justice Senate. human beings, we should think about empowered under the Senate rules to In elaborating on the golden rule of it in terms of a President is a President adjudicate questions of witnesses and impeachment, I would say principle No. regardless of party, and how would we privilege? And the answer is yes. 1, if we listen to what the Democratic treat a President of our own party in Can the Chief Justice make those de- Senators said in the past and the House similar circumstances? I think that is terminations quickly? The answer is managers and other Members of the the golden rule of impeachment. yes. House, that should guide us, and that I don’t think we have to guess here Is the Senate empowered to overturn principle is—and it is a principle based because I think we have lots of state- the Chief Justice? Under certain cir- on precedent that you shouldn’t have a ments from Democrats when we were cumstances. partisan impeachment. here last time around and principles. Is the vote 50 or is the vote two- If you have a partisan impeachment, As I said, I agree with them, I agree thirds? That would be something that that, in and of itself, is a dangerous with those principles. I just ask that we would have to discuss with the Par- thing because that means that there is they be applied here. liamentarian and with the Chief Jus- not the bipartisan support that even That is my answer. Thank you. tice. the Speaker of the House has said you The CHIEF JUSTICE. Thank you, But the Chief Justice has the power would need to even begin to consider counsel. to do it, and, what is more, under the the impeachment of a President be- The Senator from Illinois. Senate rules, you want expedited proc- cause it is the overturning of an elec- Mr. DURBIN. Mr. Chief Justice, I ess? We are here to tell you: We will tion. They don’t dispute that it is the send a question to the desk. agree with the Chief Justice’s ruling on overturning of an election. The CHIEF JUSTICE. Thank you. witnesses, on their materiality, on the In addition, it is the removal of this Senator DURBIN asks the House man- application or nonapplication of privi- President from an election that is oc- agers: lege. We agree to be bound by the Chief curring just months from now, which I If President Trump were to actually in- Justice. We will not seek to litigate an think is another important principle. voke executive privilege in this proceeding, adverse ruling, and we will not seek to I think the other important fact here wouldn’t he be required to identify the spe- appeal an adverse ruling. is that there is actually bipartisan op- cific documents or communications con- Will the President’s counsel do the position to this impeachment. Demo- taining sensitive material that he seeks to protect? same? And, if not, just as the President crats voted against it in the House of doesn’t trust what these witnesses have Representatives. That is an important Mr. Manager NADLER. As stated be- to say, the President’s lawyers don’t principle. fore, executive privilege is a very lim- want to rely on what the Chief Jus- The other principle would be that if ited privilege that must be claimed by tice’s rulings might be. you have a process that is unprece- the President. He has at no time Now, why is that? They, as we, un- dented—if you have a process that is claimed executive privilege. Rather, he derstand the Chief Justice will be fair. unprecedented—that should be some- has claimed absolute immunity, a non- I am not for a moment suggesting they thing that ought to be considered. Al- existent concept that every court that don’t think the Chief Justice is fair— ways in the past there has been a vote has ever considered it has rejected. In- quite the contrary. They are afraid he authorizing an impeachment. Why? Be- stead, he has simply said: We will op- will be fair. They are afraid he will cause they say the House is the sole pose all subpoenas. We will deny to the make a fair ruling. That should tell authority of impeachment—but that is House all information—all informa- you something about the weakness of the House, not the Speaker of the tion. Whatever they want, they can’t their position. House at a press conference. That is have. This is way beyond the pale, and They don’t want a fair trial with wit- another important consideration. it is intended to be because he fears the nesses. They don’t want a fair Justice Another important consideration is facts. to adjudicate these questions. They all of the historical precedents related The facts are, he tried to extort a for- just want to suggest to you that they to rights given to a President in a proc- eign government through withholding will delay and delay and delay. ess have been violated. We haven’t seen military aid that this Congress had I think it was Thomas Paine who anything like that in our history. The voted—he broke the law to withhold said: Those who would enjoy the bless- President’s counsel wasn’t able to at- the aid that this Congress had man- ings of liberty must undergo the rigors tend, wasn’t allowed to cross-examine dated be sent to them in order to pres- of defending it—the fatigues of defend- witnesses, wasn’t allowed to call wit- sure them into announcing an inves- ing it. nesses; and they are coming here and tigation of his political opponent. Is it too much fatigue for us to hear basically asking you, No. 1, to call wit- Those are the facts. Those facts are from a witness? Is that how little effort nesses that they had refused to pursue, proven beyond any doubt at all. we are willing to put into the blessings but, more importantly, I think what So what do we have? We have a diver- of freedom and liberty? Is that how lit- they are saying is, do what they did— sion after diversion, diversions about tle fatigue we are willing to incur? only call witnesses that they want. what Hunter Biden may have done in The CHIEF JUSTICE. Thank you, Don’t allow the President to call wit- Ukraine—irrelevant, whatever he did Mr. Manager. nesses that the President wants. That in Ukraine. The question is, Did the The Senator from Nebraska. doesn’t work. That is not due process. President withhold foreign military aid Mr. SASSE. I send a question to the The other important principle there in order to extort a foreign government desk on behalf of myself, TIM SCOTT, is, we hear a lot about fairness, but in into helping him rig an American elec- and MARCO RUBIO. the American justice system fairness is tion? The CHIEF JUSTICE. Thank you. about fairness to the accused. Fairness We hear diversions about privilege. The question from Senator SASSE and is about fairness to the accused. So We hear questions about witnesses. We also on behalf of Senator SCOTT from how can you suggest that what we are know he is telling the Senators don’t South Carolina and Mr. RUBIO, directed going to do is, we are going to have a allow witnesses. Why? Because he to counsel for the President: trial. We will get the witnesses and knows what the witnesses will say. prosecutors that we want, even though We hear arguments from his counsel: Mr. Cipollone pointed Senators to the ‘‘golden rule of impeachment.’’ In elabo- you got to call no witnesses in the Well, we have taken enough time with rating on that rule, can you offer your views House. You got to cross-examine none witnesses. The House shouldn’t have on the limiting principles—both in the na- of the witnesses that we called, and voted if it didn’t have proof positive. ture of offenses that should be considered have we got a deal for you: Let’s call We had proof positive. We voted it. It

VerDate Sep 11 2014 03:36 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00036 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.052 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 29, 2020 CONGRESSIONAL RECORD — SENATE S681 doesn’t mean we shouldn’t have more specifically: What was the funding used over and over again, to produce any proof if it comes forward. for, i.e., did it go to U.S. firms; who documents or allow witnesses to tes- There is no argument that Mr. funded it; and what do other NATO tify. We thank God for the 17 public Bolton shouldn’t be permitted to tes- members spend to support Ukraine? servants who came forward in spite of tify. He is not going to waste our time. So from the very beginning, in June, the President’s efforts to obstruct. He has told us he will testify with a the President had expressed his con- In addition, Republican Members in subpoena. cern about burden-sharing, what do Congress had an equal opportunity to So all of these questions are diver- other NATO members do. Similarly, in ask questions during the depositions sions. They are diversions by a Presi- the July 25 transcript, there was—the and the hearings in both the Intel- dent who is desperate because we have President asked President Zelensky ligence and the Judiciary Committee proven the facts that he threatened a specifically. He raised the issue of bur- hearings. Republican Members called foreign government—not just threat- den-sharing. Again, showing that was three witnesses during the Intelligence ened them, did, in fact, withhold man- his concern. In addition, there was, I Committee’s hearings and an addi- dated American military aid from believe, Mr. Morrison, who testified tional witness during the Judiciary them in order to blackmail them into that he was aware from OMB that the Committee hearing. serving his political purposes, for pri- President had expressed concerns about Of course, a House impeachment in- vate political purposes. We know that. corruption and that there was a review quiry is not a full-blown criminal trial. Everything else is a diversion. process to consider corruption in We do know that. But this is a trial, No witnesses—because maybe those Ukraine. and, obviously, the President is being witnesses will testify in a way he So the evidence in the record shows afforded every due process right during doesn’t want. that the President raised concerns at these proceedings. Privilege—when you are dealing with least as of June 24; that people were The CHIEF JUSTICE. Thank you. accusations of wrongdoing against the aware of the hold as of July 3; the Ms. MURKOWSKI. Mr. Chief Justice. President, the Supreme Court told us President’s concerns about burden- The CHIEF JUSTICE. The Senator in the Nixon case, privilege yields. sharing were in the email on June 24; from Alaska. So all of these arguments are diver- they were reflected in the July 25 call. Ms. MURKOWSKI. I send a question sions. Keep your eye on the facts. The Similarly, there is testimony from to the desk. facts we have proven. And let’s see if later in the summer that the President The CHIEF JUSTICE. Thank you. the additional witnesses—and as Mr. had raised concerns about corruption Senator MURKOWSKI’s question is for SCHIFF said, witnesses should not be a in Ukraine. So that is the evidence in the House managers: threat, not to the Senate, not to any- the record that reflects the President’s In early October, Mr. Cipollone sent the body else. And it is not going to waste concerns. Thank you. letter saying none of the subpoenas issued by too much time because the Chief Jus- The CHIEF JUSTICE. Thank you, the House were appropriately authorized and tice can rule on relevant questions— counsel. The Senator from Nevada. thus invalid. When the House passed their questions of relevancy or privilege or resolution authorizing the impeachment in- Ms. CORTEZ MASTO. Mr. Chief Jus- quiry, and granting subpoena power to the anything else. tice, I send a question to the desk. Intelligence and Judiciary Committees, the But the facts are the facts. The The CHIEF JUSTICE. The question body could have addressed the deficiency the President is a danger to the United from Senator CORTEZ MASTO is to the White House pointed out and proclaimed States. He has tried to rig the next House managers: those subpoenas as valid exercises of the im- election. He has abused his power and The President’s counsel has claimed that peachment inquiry. Alternatively, the House he must be brought to heel and the the President was unfairly excluded from could have reissued the subpoenas after the country must be saved from his con- House impeachment processes. Can you de- resolution was adopted. Please explain why tinuing efforts to rig our elections. scribe the due process President Trump re- neither of those actions took place. The CHIEF JUSTICE. Thank you, ceived during House proceedings compared Ms. Manager GARCIA of Texas. Mr. Mr. Manager. to previous presidents? Did President Trump Chief Justice, Senator, I appreciate The Senator from Utah. take advantage of any opportunities to have your question. Mr. ROMNEY. Mr. Chief Justice, I his counsel participate? These arguments, plain and simple, submit a question to the desk. Mrs. Manager DEMINGS. Mr. Chief are a red herring. The House’s im- The CHIEF JUSTICE. Thank you. Justice, and to Senators, thank you so peachment inquiry and its subpoenas The question from Senator ROMNEY much for that question. were fully authorized by the Constitu- is for the counsel for the President: Let me make this plain. The Presi- tion, House rules, and precedent. It is On what specific date did President Trump dent is not the victim here. The victim for the House, not the President, to de- first order the hold on security assistance to in this case is the American people. cide how to conduct an impeachment Ukraine and did he explain the reason at President Trump was invited to attend inquiry. that time? and participate in all of the Judiciary The House’s autonomy to structure Mr. Counsel PHILBIN. Mr. Chief Jus- Committee hearings. He could have had its own proceedings for impeachment tice, Senator, thank you for the ques- Mr. Cipollone, Mr. Sekulow, or any of inquiry is rooted in two provisions of tion. the other attorneys who have joined at article I of the Constitution. First, ar- I don’t think that there is evidence the counsel table participate through- ticle I vests the House with the ‘‘sole in the record of a specific date—the out the Judiciary Committee pro- Power of Impeachment.’’ It contains no specific date—but there is testimony in ceedings in the House. They could have requirements—no requirements—as to the record that individuals at OMB and attended all of the Judiciary hearings, how the House must carry out that re- elsewhere were aware of the hold as of and imagine this—cross-examine wit- sponsibility. July 3, and there is evidence in the nesses, raise objections, present evi- Second, article I states that the record of the President’s rationale dence favorable to the President, if House is empowered to determine the from even earlier than that time. they had any to present, and they rules of proceedings. Taken together, There is an email from June 24 that could have requested to have President these provisions give the House sole has been publicly released. It was pub- Trump’s own witnesses called. discretion to determine the manner in licly released in response to a FOIA re- But President Trump refused to par- which they investigate, deliberate, and quest that is from one DOD staffer up ticipate. He wrote to the House, and I vote for grounds of impeachment. to the Chief of Staff of DOD—excuse quote: ‘‘If you are going to impeach In exercising its responsibility to in- me, sorry—from the Chief of Staff me, do it now, fast, so we can have a vestigate and consider the impeach- down to a staffer from DOD relating on fair trial in the Senate. . . .’’ ment of a President of the United the subject line: POTUS follow-up. Fol- In every event, President Trump was States, the House is constitutionally low-up from a meeting with POTUS, asked, and indeed legally required, to entitled to relevant information from President of the United States, ex- provide evidence during the Intel- the executive branch concerning the plaining questions that had been asked ligence Committee investigation, but President’s misconduct. The Framers, about Ukraine assistance, which were he refused, as we have already said the courts, and past Presidents have

VerDate Sep 11 2014 05:38 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00037 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.053 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S682 CONGRESSIONAL RECORD — SENATE January 29, 2020 recognized and honored Congress’s The President’s counsel has pointed to there was no compulsory process issue. right to information in an impeach- the Nixon impeachment with a full And in fact, Chairman Rodino of the ment investigation and is critical as a House. House Judiciary Committee specifi- safeguard to our system of divided pow- The CHIEF JUSTICE. Thank you cally determined, when there was a ers; otherwise, a President could hide very much. Thank you. move to have the House Judiciary his own wrongdoing to prevent Con- Ms. Manager GARCIA of Texas. Committee issue subpoenas after the gress from discovering impeachable Thank you. I yield back. Saturday Night Massacre, that the misconduct, effectively nullifying— The CHIEF JUSTICE. The Senator committee lacked the authority to nullifying—Congress’s impeachment from Rhode Island. issue any compulsory process until power. Mr. WHITEHOUSE. Mr. Chief Jus- there had been a vote by the full House That is precisely what President tice, I send a question to the desk, and authorizing the committee to do that. Trump has tried to achieve here. The because my question references an ear- This is not some esoteric special rule President has asserted the power to de- lier question, I have attached that ear- about impeachments. As I have tried to termine for himself which congres- lier question as a reference to provide explain, this is just a fundamental rule sional subpoenas he will respond to and it to the Office of the Parliamentarian under the Constitution about how au- those that he will not. The President’s in case it should be of interest. thority had been given by ‘‘we the peo- counsel would have you believe that The CHIEF JUSTICE. Thank you. ple’’ to Chambers of the legislature, ei- each time anyone in the executive The question from Senator WHITE- ther the House or the Senate. Once it is branch gets a subpoena, it is open sea- HOUSE is to counsel for the President: given there to the House, how does it son for creative lawyers in the White White House counsel refused to answer a get to a committee? It can only get House and DOJ to start inventing theo- direct question from Senator COLLINS and down to a committee if it is delegated ries about House rules and parliamen- Senator MURKOWSKI, saying he could only by the House. That can only happen if tary precedent. cite to the record. Five minutes afterward the House votes. There is no standing White House counsel read recent newspaper This is not how the separation of stories to the Senate from outside the House rule that gives the House Judiciary powers works, and to accept that argu- record. Could you please give an accurate Committee authority to use the power ment would wholly undermine the and truthful answer to the Senators’ ques- of impeachment as opposed to the au- House’s and Senate’s ability to provide tion: Did the President ever mention the thority to legislate. There is no rule oversight of the executive branch. It Bidens in connection to corruption in that gives you the power to use the au- would also make impeachment a nul- Ukraine before Vice President Biden an- thority of impeachment to issue com- lity. nounced his candidacy in April 2019? What pulsory process. The President argues that there was did the President say, to whom, and when? Rule 10 doesn’t mention impeach- no resolution fully authorizing the im- Mr. Counsel PHILBIN. Mr. Chief Jus- ment at all. The word doesn’t appear in peachment inquiry, but, again, there is tice, Senator, thank you for the ques- it. That is why it has always been the no requirement for the full House to tion. understanding that there must be a take a vote before conducting an im- I don’t think that I refused to answer vote from the House to authorize the peachment inquiry. President Trump the question at all. We had been ad- House Judiciary Committee or in this and his lawyers invented this theory. vised by the House managers that they case—it was contrary to all prior prac- As Chief Judge Howell of the U.S. were going to object if we attempted to tice—it was given to Manager SCHIFF’s District Court in DC has stated, and introduce anything that was not either committee and other committees the this is a direct quote: ‘‘This [claim] has in the public domain—so things that authority to use the power of impeach- no textual support in the U.S. Con- are in newspaper articles, things like ment to issue subpoenas. stitution [or] the governing rules of the that that are out there we could refer It was very clear to the House of Rep- House.’’ to—or things that were in the record. resentatives that the position of the The Constitution itself says nothing And so I can’t—I am not in a position executive branch was that all of the about how the House may exercise its to go back into things that the Presi- subpoenas issued before H. Res. 660 sole power of impeachment, but instead dent might have said in private, and were invalid on their face, and Senator confirms the House shall have the sole there has been no discovery into that. MURKOWSKI’s question is exactly cor- power to determine the rules of its own It is not part of this inquiry, so I can’t rect: There was no effort in H. Res. 660 proceedings. This conclusion is also go telling now about things that the either to attempt to retroactively au- confirmed by precedent. Numerous President might have said to Cabinet thorize those subpoenas or to say that judges have been subjected to impeach- Members. I am not in a position to say those subpoenas—to retroactively au- ment investigations in the House and that. I can tell you what is in the pub- thorize those subpoenas or then to re- even impeached by the House and con- lic, and I can tell you what is in the issue them under H. Res. 660, so the victed by the Senate without any pre- record. I answered the question fully to subpoenas remained invalid. There was vious vote of the House authorizing an the best of my ability based on what is no response from the House to that. impeachment inquiry. in the public domain and what is in the Thank you. As recently as the 114th Congress, the record. The CHIEF JUSTICE. Thank you, Judiciary Committee considered im- I would like to take a moment to counsel. peaching the IRS Commissioner fol- also respond to the last question that Mr. HAWLEY. Mr. Chief Justice. lowing a referral from another com- was posed by Senator MURKOWSKI with The CHIEF JUSTICE. The Senator mittee and absent a full House vote. respect to the vote on authorizing the from Missouri. The Judiciary Committee began an in- issuance of subpoenas because there Mr. HAWLEY. Mr. Chief Justice, I vestigation into President Nixon’s mis- has always been a vote from the full send to the desk a question for both conduct for 4 months before approval of House to authorize any impeachment counsel for the President and the a full House resolution. inquiry into a Presidential impeach- House managers on my own behalf and The House rules also do not preclude ment. It was that way in the Johnson on behalf of Senator CRUZ, Senator committees from inquiring into the po- impeachment. It was that way in the DAINES, and Senator BRAUN. tential grounds for impeachment. In- Nixon impeachment. The CHIEF JUSTICE. Thank you. stead, those rules vest the relevant There have been references to the The President’s counsel will respond committees of the House with robust fact that the House Judiciary Com- first to the question from Senator investigatory powers, including the mittee began some investigatory work HAWLEY and the other Senators: power to issue subpoenas. before the House actually voted on the When he took office, Viktor Shokin, Each of the three committees that resolution—I think it was Resolution Ukraine’s Prosecutor General, vowed to in- conducted the initial investigation of 803—to authorize the impeachment in- vestigate Burisma. Before Vice President Joe Biden pressed Ukrainian officials on cor- President Trump’s conduct in quiry. But all that work was simply ruption, including pushing for the removal of Ukraine—Intelligence, Oversight, and gathering things that were in the pub- Shokin, did the White House Counsel’s Office Foreign Affairs—indisputably had over- lic domain or that had been already or the Office of the Vice President legal sight jurisdiction over these matters. gathered by other committees, and counsel issue ethics advice approving Mr.

VerDate Sep 11 2014 03:36 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00038 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.055 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 29, 2020 CONGRESSIONAL RECORD — SENATE S683 Biden’s involvement in matters involving Shokin’s office investigated Burisma, along with Victoria Toensing, in his corruption in Ukraine or Shokin, despite the but the probe focused on a period be- ‘‘capacity as personal counsel to Presi- presence of Hunter Biden on the board of fore Hunter Biden joined the company. dent Trump and with his knowledge Burisma, a company widely considered to be corrupt? Did Vice President Biden ever ask But, again, another investigation was and consent.’’ Hunter Biden to step down from the board of warranted. Dismissing Shokin would Mr. Giuliani confirmed President Burisma? have made that more likely. Trump’s knowledge of actions with re- Mr. Counsel PHILBIN. Mr. Chief Jus- The CHIEF JUSTICE. Thank you. gard to Ukraine, stating: ‘‘He . . . tice, Senators, thank you for the ques- Mr. KING. Mr. Chief Justice. knows what I’m doing, sure, as his law- tion. The CHIEF JUSTICE. The Senator yer.’’ He added: We are not aware of any evidence from Maine. My only client is the president of the that then-Vice President Biden sought Mr. KING. Mr. Chief Justice, I have a United States. He’s the one I have an obliga- any ethics opinion. We are aware that question for the House managers I will tion to report to, tell him what happened. both Amos Hochstein and Deputy As- send to the desk. President Trump repeatedly in- sistant Secretary of State Kent testi- The CHIEF JUSTICE. Thank you. structed senior American and Ukrain- fied—excuse me—Amos Hochstein is in Senator KING’s question for the ian officials to talk to Rudy, dem- the public domain. Deputy Assistant House managers reads as follows: onstrating that Mr. Giuliani was a key Secretary of State Kent testified in the Mr. Rudolph Giuliani was in Ukraine ex- player in the corrupt scheme. proceedings before the House that they clusively on a political errand—by his own In the May 23 Oval Office meeting to each raised the issue with Vice Presi- admission—so doesn’t the President’s men- discuss Ukraine policy, President dent Biden of the potential appearance tion of Giuliani by name in the July 25th call Trump directed his handpicked three of a conflict of interest with his son conclusively establish the real purpose of the amigos to talk to Rudy. In response, Hunter being on the board of Burisma. call? Ambassador Sondland testified: ‘‘Sec- Deputy Assistant Secretary Kent testi- Mr. Manager NADLER. Mr. Chief retary Perry, Ambassador Volker and I fied that although he raised that issue Justice, Members of the Senate, Mr. worked with Mr. Rudy Giuliani on with the Vice President’s office, the re- Giuliani played a key role in President Ukraine matters at the express direc- sponse was that the Vice President’s Trump’s monthslong scheme to pres- tion of the President of the United Office—the Vice President was busy sure Ukraine to announce political in- States.’’ dealing then with the illness of his vestigations to benefit the President’s After two explosive White House other son, and there was no action reelection campaign. Remarkably, the meetings on July 10 in which Ambas- taken. So from what we know, there President’s defense is wrapping them- sador Sondland explicitly conveyed the wasn’t any effort to seek an ethics selves in Rudy Giuliani’s involvement President’s demand for political inves- opinion. We are not aware of an ethics in Ukraine while trying to minimize tigations to Ukrainian officials, top opinion having been issued. Although his role. Ukrainian aide Andriy Yermak texted the issue was flagged for the Vice There is overwhelming evidence—not Ambassador Volker: ‘‘I feel that the President’s Office, we are not aware just testimony but texts, call records, key for many things is Rudy.’’ that Vice President Biden asked his and other corroborating documents— And what was Rudy asking? Inves- son to step down or that any other ac- establishing Mr. Giuliani’s key role in tigations of two American citizens— tion was taken. And I believe that Vice executing the President’s pressure not corruption in general; investiga- President Biden has said that he never campaign beginning in early spring tions. In fact, he wasn’t even asking for discussed—he said publicly he never 2019 with a smear campaign against an investigation; he was just asking for an announcement of an investigation discussed his son’s overseas business Ambassador Yovanovitch and then so that American citizens—the dealings with him. throughout the summer. Everyone Thank you. knew that Rudy Giuliani was the gate- Bidens—could be smeared. On the July 25 call with President The CHIEF JUSTICE. Thank you, keeper to the President on Ukraine. Zelensky, President Trump mentioned counsel. On May 10, Mr. Giuliani canceled the Rudy Giuliani by name no less than Mrs. Manager DEMINGS. Mr. Chief trip to Ukraine, during which he four times and informed Zelensky that Justice and Senator, I appreciate your planned to dig up dirt on former Vice Rudy very much knows what is hap- question. The facts about Vice Presi- President Biden and on a discredited pening. He told President Zelensky: dent Biden’s conduct are clear and do conspiracy theory after his plans be- ‘‘Mr. Giuliani is a highly respected not change. Let’s go through them. came public. He admitted: ‘‘We’re not man.’’ He added, ‘‘Rudy very much First, every witness asked about this meddling in an election, we’re med- knows what is happening.’’ topic testified that Mr. Shokin was dling in an investigation.’’ He ex- widely considered to be a corrupt and In August, Mr. Giuliani met with a plained that someone can say it is im- ineffective prosecutor who did not top Ukrainian aide and conveyed that proper, and this isn’t—‘‘[Someone] prosecute corruption. Shokin was so Ukraine must issue a public statement could say it’s improper. And this isn’t corrupt that the entire free world—the announcing investigations. foreign policy—I’m asking them to do United States, the European Union, the Ambassador Sondland and Volker International Monetary Fund—pressed an investigation that they’re already then worked closely with Giuliani and for his office to be cleaned up. So I doing and that other people are telling the Ukrainians to ensure that the would caution you to be skeptical of them to stop.’’ He was talking about planned statement would meet Mr. anything that Mr. Shokin claims. the investigations of the Bidens. Giuliani’s demands. Specifically, Mr. Second, witnesses, including our own During a May 10 appearance on FOX Giuliani insisted that the statement anti-corruption advocate, Ambassador News, Giuliani also said that he can- include specific references to Burisma Yovanovitch—remember that very celed his trip because there are en- and the 2016 election and Biden. dedicated anti-corruption Ambas- emies of Trump’s around President Throughout this process, Sondland sador—testified that Shokin’s removal Zelensky. stated that he knew that they needed made it more likely that investiga- Mr. Giuliani’s associate Lev Parnas the approval of Giuliani for the press tions of corrupt European—Ukrainian produced a set of documents to the statement and that they knew Giuliani companies would move forward. Let me House Intelligence Committee that in- represented the interest of the Presi- repeat that. The dismissal of Shokin cluded a letter—and I believe we have dent. made it more likely that Burisma slide 50 here—Mr. Giuliani sent to Rudy Giuliani admitted on live tele- would be investigated. President-elect Zelensky during this vision to pressuring Ukraine to look Third, Burisma was not under scru- time period. In the letter dated May 10, into Joe Biden—not into corruption; tiny at the time Joe Biden called for Mr. Giuliani informed Zelensky that he into Joe Biden. Shokin’s ouster, according to the Na- represented President Trump as a pri- In September 2019, Chris Cuomo tional Anti-Corruption Bureau of vate citizen, not as President of the asked Giuliani: ‘‘So you did ask Ukraine, an organization several wit- United States. Ukraine to look into Joe Biden?’’ nesses testified is effective at fighting He also requested a meeting with In response, Giuliani insisted: ‘‘Of corruption. President Zelensky on May 13 and 14, course I did.’’

VerDate Sep 11 2014 03:36 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00039 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.056 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S684 CONGRESSIONAL RECORD — SENATE January 29, 2020 Mr. Giuliani insisted that Ukraine Manager SCHIFF confused my argu- if he is the President of the United look at an American citizen on behalf ment when he talked about intent and States and he has a corrupt son, the of his client, President Trump. motive. fact that he has announced his can- Finally, during the pendency of the You have said I am not a constitu- didacy is a very good reason for upping impeachment proceedings, Mr. Giuliani tional lawyer, but you admitted I am a the interest in his son. If he wasn’t has not ceased in his efforts to dig up criminal lawyer. And I have taught running for President, he is a has-been. dirt to benefit the President. criminal law for 50 years at Harvard. He is the former Vice President of the In December, he again traveled to There is an enormous distinction be- United States. OK, big deal. But if he is Ukraine to meet with Ukrainian offi- tween intent and motive. If somebody running for President, that is an enor- cials, which he described as a secret as- shoots somebody, the intent is that mous big deal. signment, and after which, the Presi- when you pull the trigger, you know a So the difference—the House man- dent reportedly called him imme- bullet will leave and will hit somebody agers would make—is whether the diately upon landing and asked, ‘‘What and may kill them. That is the intent President is in his first term or in his did you get?’’ to which Mr. Giuliani re- to kill them. Motive can be revenge. It second term, whether he is running for sponded, ‘‘More than you can imag- could be money. It almost never is reelection or not running for reelec- ine.’’ taken into consideration, except in ex- tion. I think they would have to con- It is worth noting that in Ms. treme cases. There are cases where mo- cede that, if he was not running for re- Raskin’s presentation about tive counts. election, this would not be a cross mo- Giuliani—— But let’s consider a hypothetical tive but would be a mixed motive but The CHIEF JUSTICE. Thank you, growing out of a situation that we have leaning on the side of national interest. Mr. Manager. discussed. Let’s assume that President If he is running for reelection, suddenly Mr. Manager NADLER.—he repeated Obama had been told by his advisers that turns it into an impeachable of- requests for investigations into Biden, that it really is important to send le- fense. not into corruption. thal weapons to the Ukraine, but then The CHIEF JUSTICE. Thank you. Mr. RUBIO. Mr. Chief Justice. he gets a call from his pollster and his Thank you, counsel. The CHIEF JUSTICE. The Senator political adviser, who says: We know it The Senator from Minnesota. from Florida. is in the national interest to send le- Ms. KLOBUCHAR. Mr. Chief Justice, Mr. RUBIO. I send a question to the thal weapons to the Ukraine, but we I submit a question to the desk di- desk on behalf of myself, Senators are telling you that the leftwing of rected to the House managers. SASSE, BRAUN, RISCH, MCSALLY, ROB- your party is really going to give you a The CHIEF JUSTICE. Thank you. ERTS, and HOEVEN. hard time if you start selling lethal The question is from Senator KLO- The CHIEF JUSTICE. Thank you. weapons and getting into a lethal war, BUCHAR to the House managers: The question from Senator RUBIO and potentially, with Russia. Would any- I was on the trial committee for the last the other Senators is for counsel for body here suggest that was impeach- impeachment trial in the Senate, which in- the President: able? Or let’s assume President Obama volved Judge Thomas Porteous, who was ul- timately removed. During that time, the How would the Framers view removing a said: I promised to bomb Syria if they Senate trial committee heard from 26 wit- President without an overwhelming con- had chemical weapons, but I am now nesses, 17 of whom had not previously testi- sensus of the American people and on the told by my pollsters that bombing fied in the House. What possible reason could basis of Articles of Impeachment supported Syria would hurt my electoral chances. there be for allowing 26 witnesses in a judi- by one political party and opposed by the Certainly not impeachable at all. cial impeachment trial and hearing none for other? So let me apply that to the current a President’s trial? Mr. Counsel DERSHOWITZ. Mr. Chief situation. As you know, I said pre- Mr. Manager SCHIFF. Mr. Chief Jus- Justice, thank you. viously there are three levels of pos- tice, Senator, as you know, I am quite Senators, Alexander Hamilton ad- sible motive. familiar with the Porteous impeach- dressed that issue very directly. He One is, the motive is pure—only in- ment. Someone asked me the last time said the greatest danger of impeach- terest is in the way of what is good for I tried a case. The answer is probably ment is if it turns on the votes of one the country. In the real world, that 30 years ago except for the impeach- party being greater than the votes of rarely happens. ment of Thomas Porteous, when I last another party in either House. So I The other one is, the motive is com- spent some quality time with you. think they would be appalled to see an pletely corrupt—I want money, kick- There is no difference in terms of the impeachment going forward in viola- back. Constitution. I would say that the need tion of the Schumer rule and the rules But then there is the third one that for witnesses in the impeachment trial of other Congressmen that were good is so complicated and that is often mis- of a President of the United States is a enough for us during the Clinton im- understood. When you have a mixed far more compelling circumstance than peachment but seemed to have changed motive—a motive in which you think the impeachment of a judge. Now, you dramatically in the current situation. you are doing good for the country, but might say, well, in the impeachment of The criteria that have been set out you are also doing good for yourself. a judge, how is it possible that the are so lawless, they basically para- You are doing good for me; you are time of the Senate could be occupied phrase Congresswoman MAXINE doing good for thee. You are doing by calling witnesses; that, as precious WATERS, who said: There is no law. good, and you altogether put it in a as your time is, we would occupy your Anything the House wants to do to im- bundle in which you are satisfied that time calling dozens of witnesses, but in peach is impeachable. That is what is you are doing absolutely the right the impeachment of a President, it is happening today. That places the thing. Let me give you a perfect exam- not worth the time; it is too much of House of Representatives above the ple of that from the case. an imposition. law. The argument has been made that Again, I would argue that the imper- We have heard much about, no one is the President of the United States only ative of calling judges and having a fair above the law. The House of Represent- became interested in corruption when trial when we are adjudicating the atives is not above the law. They may he learned that Joe Biden was running guilt of a President of the United not use the MAXINE WATERS—Gerald for President. Let’s assume hypo- States is paramount. Ford made the same point, but it was thetically that the President was in his Now, we have always argued that the about the impeachment of a judge. second term, and he said to himself: trial should be fair to the President Judges are different; there are many of You know, Joe Biden is running for and the American people. And, yes, it them. There is only one President. President. I really should now get con- is a big deal to impeach a President But to use that criteria, that it is cerned about whether his son is corrupt and remove that President from office. whatever the House says it is, whatever because he is not only a candidate—he It is also a big deal if you leave in place the Senate says it is, turns those bod- is not running against me; I am fin- a President when the House has proven ies into lawless bodies, in violation of ished with my term—but he could be that President has committed im- the intent of the Framers. the President of the United States. And peachable misconduct and is likely to

VerDate Sep 11 2014 03:36 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00040 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.058 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 29, 2020 CONGRESSIONAL RECORD — SENATE S685 continue committing it—because there but never a President. The eight judges have easy to imagine how a judge might is no doubt, I think, from the record been removed for bribery, perjury, tax eva- have to be removed for that. that not only did the President solicit sion, waging war against the United States, But the President—there is an and other unlawful actions. How do the cur- amendment to the Constitution, the Russian interference in 2016 but solic- rent impeachment articles differ from pre- ited Ukraine’s interference in the up- vious convictions and removals by the Sen- 25th Amendment, specifically provided coming election, solicited China’s in- ate? because there was a gap in the Con- terference—as my colleague just said, Mr. Counsel DERSHOWITZ. Mr. Chief stitution. And, please, Members of the had Rudy Giuliani, his personal agent, Justice, there is an enormous dif- Senate, it is important to understand, in Ukraine doing the same kind of ference between impeaching and re- your role is not to fill gaps that the thing just last month. moving a judge, even a justice, and im- Framers deliberately left open. And Senator, in response to that peaching and removing a President. No Good arguments have been made: question, isn’t it dispositive that judge, not even a Chief Justice, is the Why is it important to make sure peo- Giuliani, the personal agent of the judicial branch. You are the head of ple don’t abuse their power, people President, is running this Biden oper- the judicial branch, but there is a judi- don’t commit maladministration? But ation rather than any department of cial branch. the Framers left open, left those gaps. government? Isn’t that really disposi- The President is the executive Your job is not to fill in the gaps. Your tive of whether this was policy or poli- branch. He is irreplaceable. There isn’t job is to apply the Constitution as the tics? And I think the answer is yes. always a Vice President. Remember, Framers wrote it, and that doesn’t in- Giuliani has made it abundantly we had a period of time when there was clude abuse of power and obstruction of clear: I am not here doing foreign pol- no Vice President. We needed a con- Congress. icy. That is the President’s own law- stitutional amendment. Thank you. yer. I am not here to do foreign policy. So there is no comparison between The CHIEF JUSTICE. Thank you, Now, Professor Dershowitz just made impeaching a judge and impeaching a counsel. a rather astounding argument that an President. Moreover, there is a textual The Senator from Delaware. investigation of Joe Biden that is un- difference. The Constitution provides Mr. COONS. Mr. Chief Justice, I send warranted, unmerited, suddenly be- that judges serve during good behavior. a question to the desk for the Presi- comes warranted if he runs for Presi- That is the Congressman SCHIFF stand- dent’s counsel. dent. Now, he posited that in the Presi- ard, and it is a great standard. We wish The CHIEF JUSTICE. Thank you. dent’s second term, but it doesn’t mat- everybody served only during good be- The question from Senator COONS to ter whether he is in his first term or havior. But the Constitution doesn’t the President’s counsel is this: his second term. An illegitimate inves- say that the President shall serve dur- The President’s brief states, ‘‘Congress has tigation of Joe Biden doesn’t somehow ing good behavior. The big difference is forbidden foreigners’ involvement in Amer- become legitimate because he is run- ican elections.’’ However, in June 2019, Presi- the President runs every 4 years, and dent Trump said if Russia or China offered ning for President unless you view the public gets to judge his good behav- information on his opponent, ‘‘[t]here’s noth- your interests as synonymous with the ior. Judges don’t run, and so there is ing wrong with listening,’’ and he might not Nation’s interests. only one judge of the good behavior; alert the FBI because: ‘‘Give me a break. I think it is the most profound con- namely, the impeachment process. Life doesn’t work that way.’’ Does President flict for a President of one party, So to make a comparison is to make Trump agree with your statement that for- whether he is running for reelection or the same mistake that when people eigners’ involvement in American elections not, to suggest that all of a sudden an compare the British system to the is illegal? investigation of a leading candidate in American system. We have heard a lot Mr. Counsel PHILBIN. Mr. Chief Jus- the opposite party is justified because of argument that we adopted the Brit- tice, Senator, thank you for the ques- now they are running for President. I ish system by adopting five words: tion. mean, you really have to step aside ‘‘other high crimes and mis- I think Congress has specified spe- from what is going on to imagine that demeanors.’’ Yes, those words may cific ways in which foreigners cannot anyone could make that argument; have been borrowed from Great Brit- be involved in elections. Foreigners that running for office, running for ain, but the whole concept of impeach- can’t vote in elections. There are re- President now, means that you are a ment was not. First of all, impeach- strictions on foreign contributions to more justified target of investigation ment no longer exists in Great Britain; campaigns—things like that. than when you weren’t. That cannot but when it did, it only operated for When the whistleblower originally be. That cannot be. But that is essen- low-level and middle-level people. All made a complaint about this July 25 tially what is being argued here. the impeachment trials that have been call, and that was reviewed by the in- To get to conclude, Senator, the case cited involve this guy in India, this guy spector general for the intelligence for witnesses in a Presidential im- in the commerce, this guy here, this community, he framed that whistle- peachment where either, on the one guy there—utterly replaceable people. blower’s complaint and wrote a cover side, you remove a President or, on the In the British system, on the other letter framing it in terms of those other side, you leave in place a Presi- hand, you can get rid of the head of laws. And he said that there might be dent who may pose a continuing risk to state—the head of government, rather, an issue here related to soliciting a for- the country is far more compelling to by a simple vote of no confidence. That eign contribution to a campaign, a take the time to hear from witnesses is what the Framers rejected. The thing of value, foreign campaign inter- than a corrupt Louisiana judge who Framers rejected that for a President. ference. only impacts those who come before And so the notion that we borrowed the That was specifically reviewed by the his court. British system has it exactly back- Department of Justice. The Depart- All of us come before the court of the ward. We rejected the British system. ment of Justice concluded that there American people. We did not want a President to serve was no such violation here. So that is The CHIEF JUSTICE. Thank you, at the pleasure of the legislature. We not something that is involved in this Mr. Manager. wanted the President to serve at the case. The Senator from Montana. pleasure of the voters. President Trump’s interview with Mr. DAINES. Mr. Chief Justice, I Judges don’t serve at the pleasure of ABC that you cited does not involve send a question to the desk on behalf of the voters, so there needs to be dif- something that is a foreign campaign myself and Senator LANKFORD and Sen- ferent criteria and broader criteria, contribution, something that is ad- ator HAWLEY. and those criteria have been used in dressed by the law as passed by Con- The CHIEF JUSTICE. Thank you. practice. For the most part, judges gress. He was referring to the possi- The question from Senators DAINES, have been impeached for criminal and bility that information could come LANKFORD, and HAWLEY is for counsel removed for criminal behavior. from a source, and I think he pointed for the President: But take an example that was given. out in that interview that he might Over the past 244 years, eight judges have If a judge is completely drunk and in- contact the FBI, he might listen to been removed from office by the U.S. Senate capacitated and cannot do his job, it is something.

VerDate Sep 11 2014 03:36 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00041 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.059 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S686 CONGRESSIONAL RECORD — SENATE January 29, 2020 But mere information is not some- no contact with the whistleblower, Does an impeachable abuse of power re- thing that would violate the campaign that it was only his staff. But the ex- quire that a President’s corrupt plan actu- finance laws. And if there is credible tent to which there was some consulta- ally succeed? information, credible information of tion there hasn’t actually been probed Ms. Manager LOFGREN. Mr. Chief wrongdoing by someone who is running by any question. Justice and Senators, the answer is no. for a public office—it is not campaign All the questions that Republican Just as, although this is not a criminal interference for credible information Members of the House tried to ask offense, if you attempted murder but about wrongdoing to be brought to about that were shut down. And any didn’t succeed, you would not be inno- light, if it is credible information. questions as a result of questions into cent. The President has attempted to So I think that the idea that any in- determining who the whistleblower was upend the constitutional order for his formation that happens to come from and what his motivations and bias were own personal benefit. He used the pow- overseas is necessarily campaign inter- also shut down. ers of the—let’s put up slide 11, if we ference is a mistake. That is a non se- The inspector general for the intel- could. He has used the powers of his of- quitur. Information that is credible, ligence community noted—we heard fice to solicit foreign interference, and that potentially shows wrongdoing by that earlier this evening—in his letter we know this by the President’s own someone who happens to be running for to the Acting Director of the DNI that statements, the Acting Chief of Staff’s office, if it is credible information, is the whistleblower had the indicia of po- confession, substantial documentary relevant information for the voters to litical bias because the whistleblower evidence, and witness testimony. And know about, for people to be able to de- had connections with a Presidential this has grave consequences for our na- cide on who is the best candidate for an candidate of another party. tional security, for threatened election office. But the testimony from the inspector security, as well as undermining U.S. Thank you. general of the intelligence community credibility and our values abroad. The CHIEF JUSTICE. Thank you, remains secret. It was in executive ses- Now, because the President continues counsel. sion. It hasn’t been forwarded from to act in this manner, we believe that The majority leader is recognized. HPSCI to the House Judiciary Com- this is an ongoing threat. While the im- RECESS mittee and, therefore, is not part of the peachment was going on, the Presi- Mr. MCCONNELL. Mr. Chief Justice, RECORD here. There hasn’t been any dent’s personal lawyer, Mr. Giuliani, I recommend we take a break until 10 ability to probe into the relationships was in Ukraine, continuing this p.m. and then finish up for the evening. between the whistleblower and others scheme, and when he landed—he was There being no objection, at 9:44 who are materially relevant to the still taxiing—the President and he p.m., the Senate, sitting as a Court of issues in this inquiry. were on the phone. Impeachment, recessed until 10:07 p.m.; If the whistleblower, as is alleged in The President was asking him: What whereupon the Senate reassembled some public reports, actually did work did you get? What did you get? when called to order by the CHIEF JUS- for then-Vice President Biden on So this is an ongoing matter. The TICE. Ukraine issues, exactly what was his fact that he had to release the aid after Mr. MCCONNELL. Mr. Chief Justice, role? What was his involvement when his scheme was revealed does not end my understanding is we will finish up issues were raised? We know from tes- the problem. at about 11 p.m. timony the questions were raised about I have listened with great interest to The CHIEF JUSTICE. Thank you. the potential conflict of interest that the back-and-forth in the questions. It The Senator from Georgia. the Vice President then had when his is hard because I want to get up and Mrs. LOEFFLER. I send a letter to son was sitting on the board of answer all of the questions, and I can’t, the desk on behalf of myself, Senators Burisma. Was the alleged whistle- but I do think that the President has BLACKBURN, HYDE-SMITH, COTTON, blower involved in any of that and in made it clear that he believes he can do HAWLEY, BARRASSO, PERDUE, FISCHER, making decisions to not do anything whatever he wants—whatever he and CORNYN. related to that? Did he have some rea- wants—and there is no constraint that The CHIEF JUSTICE. Thank you. son to want to put the deep six on any is being recognized by the Congress. The question from Senator LOEFFLER question raising any issue about what Mr. Mulvaney, as we have noted, has and Senators BLACKBURN, HYDE-SMITH, went on with the Bidens and Burisma acknowledged that the President di- COTTON, HAWLEY, BARRASSO, PERDUE, and firing Shokin and withholding $1 rectly tied his hold on military aid to FISCHER, and CORNYN is for counsel for billion in loan guarantees and in forc- his desire to get Ukraine to conduct a the President: ing a very explicit quid pro quo: You political investigation, and he told us As a fact witness who was coordinating won’t get this $1 billion until you fire to just get over it. with the whistleblower, did Manager him. The President’s lawyers have sug- SCHIFF’s handling of the impeachment in- We don’t know. And because Manager gested we should not believe our eyes quiry create material due process issues for SCHIFF was guiding this whole process, because Mr. Mulvaney—when I was a the President to have a fair trial? because he was the chairman in charge kid, they would say: Don’t believe your Mr. Counsel PHILBIN. Mr. Chief Jus- of directing the inquiry and directing lying eyes—walked that back later. We tice, Senators, thank you for that it away from any of those questions, have an opportunity, actually, to hear question. that creates a real due process defect from a witness who directly spoke to And I believe the short answer is yes, in the record that has been presented the President, who, apparently, can it did create a material due process here. tell us that the President told him that issue. And as I explained the other day So yes, that is a major problem and the only reason this aid was held up in a portion of my argument, there major defect in the way the House pro- was to get dirt on the Democrats. were three major due process viola- ceedings occurred that infects this If we just think about it—put tions: the lack of an authorization, so record. It means that it is not a record Ukraine to one side—if a Chief Execu- that the whole proceeding started in an that could be relied upon to reach any tive called the Department of Justice illegitimate and constitutionally in- conclusion other than an acquittal for and said, ‘‘I want you to investigate valid manner; second, the lack of basic the President. my political opponents. I want you to due process protections related to fun- Thank you. announce an investigation,’’ there damental rights to present evidence, The CHIEF JUSTICE. Thank you, wouldn’t be any question that that cross-examine witnesses, present wit- counsel. would be an improper use of Presi- nesses; and the final one is that Man- The Senator from Michigan. dential power. It is really no different ager SCHIFF or his staff had some role Mr. PETERS. Mr. Chief Justice, I when you follow a foreign government in consulting with the whistleblower have a question for the House man- except that it is worse because one of that remains secret to this day. And all agers that I will send to the desk. the things that the Founders worried attempts to find out about that, to ask The CHIEF JUSTICE. Thank you. about was the involvement of foreign questions about that were shut down. Senator PETERS asks the House man- governments in our matters, in our Manager SCHIFF said today that he had agers: elections. So, yes, the fact that he

VerDate Sep 11 2014 06:47 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00042 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.060 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 29, 2020 CONGRESSIONAL RECORD — SENATE S687 didn’t succeed in that particular in- dent and the President asserts the im- Mr. BLUMENTHAL. Thank you, Mr. stance does not mean that we are safe. munity of the senior adviser—a doc- Chief Justice. I was stunned to hear that now, ap- trine that has been asserted by vir- Mr. Chief Justice, I send a question parently, it is OK for the President to tually every President since President to the desk on behalf of myself and get information from foreign govern- Nixon and goes back earlier than Senators WARNER, HEINRICH, and HAR- ments in an election. That is news to that—then there is a confrontation be- RIS. me, you know, that the election cam- tween the branches. That doesn’t sug- The CHIEF JUSTICE. Thank you. paign laws prohibit accepting anything gest an impeachable offense. What it The question from Senator of value. A thing of value is informa- suggests—what it shows—is a separa- BLUMENTHAL and Senators WARNER, tion. If you or I accepted material in- tion of powers in operation. That fric- HEINRICH, and HARRIS reads as follows: formation from a source—an email, a tion between the branches is part of Before the break, the President’s Counsel stated that accepting ‘‘mere information’’ database, and the like—without paying the constitutional design. from a foreign source is not something that for it or from a foreign nation, that It was Justice Louis Brandeis who would violate campaign finance law, and would be illegal; but the thought that explained that the separation of powers that it is not campaign interference to ac- this—as we go forward in this trial was enshrined in the Constitution not cept ‘‘credible information’’ from a foreign itself, we are creating additional dan- because it was the most efficient way source about someone who is running for of- gers to the Nation by suggesting that to have government, but because the fice. Under this view, acceptance of the kinds things that have long been prohibited friction that it caused and the inter- of propaganda disseminated by Russia in are now suddenly going to be OK be- action between the branches was part 2016—on Facebook and other social media platforms, using bots, fake accounts and cause they have been asserted in the of a way of guaranteeing liberty by en- other techniques to spread disinformation— President’s defense. suring that no one branch could ag- would be perfectly legal and appropriate. I yield back. grandize power to itself. Isn’t it true that accepting such a thing of The CHIEF JUSTICE. Thank you. What the House managers are sug- value is, in fact, a violation of law? And isn’t The Senator from Wyoming. gesting here is directly antithetical to it true that it is one of the highest priorities Mr. BARRASSO. Mr. Chief Justice, I that fundamental principle. What they of our Intelligence Community, including send a question to the desk on behalf of are suggesting is, once they decide the CIA, NSA, DNI, and FBI, to do every- thing possible to prevent such foreign inter- myself and Senators RISCH, HAWLEY, they want to pursue impeachment and ference or intervention in our elections? and MORAN. when they make demands for informa- Mr. Manager SCHIFF. It is, without The CHIEF JUSTICE. Thank you. tion to the Executive, the Executive question, among the very highest pri- The question is from Senators BAR- has no defenses. It can have no con- orities of our intelligence agencies and RASSO, RISCH, HAWLEY, and MORAN for stitutional authorities or prerogatives our law enforcement to prevent foreign counsel to the President: to raise in response to those subpoenas. interference in our election of the type Can the Senate convict a sitting U.S. It has to just turn over everything or it President of obstruction of Congress for ex- and character that we saw in 2016. is an impeachable offense. What that When Russia hacked the databases of ercising the President’s constitutional au- would lead to, as Professor Turley ex- thorities or rights? the Democratic National Committee— plained, is transforming our system of the DCCC—when they began a cam- Mr. Counsel PHILBIN. Mr. Chief Jus- government by elevating the House and paign of leaking those documents and tice and Senators, thank you for the making it, really, a parliamentary sys- when it engaged in a massive and sys- question. tem. temic social media campaign, our intel I think the short answer is, constitu- As Professor Dershowitz was explain- agencies and law enforcement had been tionally, no, the Senate may not con- ing, in the parliamentary system, the devoting themselves to preventing a re- vict the President for exercising his Prime Minister can simply be removed currence of that type of foreign inter- constitutional authorities. by a vote of no confidence, but if you ference. The theory that the House managers make it so easy to impeach the Presi- If I am understanding counsel and have presented—I think Professor dent—all the House has to do is de- the President correctly—and I think Turley, in testifying before the House, mand some information, goad a re- that I am—they are saying that not made it very clear—is itself an abuse of sponse from a President that this is only is that OK to willingly accept power by Congress and is dangerous for contrary to the principles that all that but that the very allegation the structure of our government be- Presidents before me have asserted, against the President that Bob Mueller cause the fundamental proposition at and I am going to stick by the execu- spent 2 years investigating didn’t the heart of the obstruction of Con- tive branch’s prerogatives—then the amount to criminal conspiracy. That gress charge that the House managers House can say: Well, that is it. You is, Did he prove beyond a reasonable have brought is that the House can will be impeached. doubt the crime of conspiracy? Again, simply demand information. If the votes are there to remove the we are talking about something sepa- If the executive branch resists, even President, you make the President de- rate from collusion here, although my if it provides lawful rationales—per- pendent on the legislature, and that is colleagues keep confusing the two. Bob haps ones that the House managers dis- what Gouverneur Morris warned Mueller didn’t address the issue of col- agree with but that are consistent with against specifically during the Con- lusion. What he did address was wheth- longstanding precedents and principles stitutional Convention. He warned the er he could prove the elements of applied by the executive branch—and if Framers, when we make a method for criminal conspiracy, and he found that the House managers disagree with making the President amenable to jus- he could not. them, they jump immediately to im- tice, we should make sure that we do What counsel for the President is peaching the President. That is dan- not make him dependent on the legisla- now saying is that, even if he could gerous for our structure of govern- ture. have, that is OK. It is now OK to crimi- ment. We are talking about principles It was the parliamentary system’s nally conspire with another country to here—one based on simply the failure making it easy to remove the Chief Ex- get help in a Presidential election, as of the House to proceed lawfully. ecutive that the Framers wanted to re- long as the President believes it would We have heard a lot about the Presi- ject, and this theory of obstruction of help his campaign, and, therefore, it dent is not above the law, but as Pro- Congress would create exactly that would help our country. That is now fessor Dershowitz pointed out, the system of easy removal, effectively a OK. It is OK to ask for that help. It is House of Representatives is not above parliamentary system of a vote of no OK to work with that power to get that the law. It has to turn square corners. confidence. That is not the structure of help. That is now OK. It has to proceed by the proper meth- the government that the Framers en- It has been a remarkable evolution of ods to issue subpoenas to the executive shrined in the Constitution for us. the Presidential defense. It began with branch. Thank you. ‘‘none of that stuff happened here.’’ It So, if the House has an issue about The CHIEF JUSTICE. Thank you, began with ‘‘nothing to see here.’’ It subpoenas and if the House attempts to counsel. migrated to, OK, they did seek inves- subpoena a senior adviser to the Presi- The Senator from Connecticut. tigations of the President’s political

VerDate Sep 11 2014 03:36 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00043 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.062 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S688 CONGRESSIONAL RECORD — SENATE January 29, 2020 rival, and then it became, OK, those in- bribery as defined in 18 U.S.C., section 201, The Senator from New York. vestigations were not sought by official and Honest Services Fraud as defined in 18 Mrs. GILLIBRAND. Mr. Chief Jus- channels to official policy. They were U.S.C., section 1346, but these offenses are tice, I send a question to the desk on not cited in the Articles of Impeachment. sought by the President’s lawyer in his Did the President’s actions as alleged in the behalf of Senators CASEY, MURPHY, personal capacity. Then it migrated to, Articles of Impeachment constitute viola- ROSEN, and myself for the House man- OK, we acknowledge that, while the tions of these Federal criminal laws, and if agers. President’s lawyer was conducting this so, why were they not included in the Arti- The CHIEF JUSTICE. Thank you, personal political errand, the President cles? Senator from New York. withheld the money, but we think that Mr. Manager JEFFRIES. Thank you, The question from Senators GILLI- is OK. Chief Justice, and thank you, Senator, BRAND, CASEY, MURPHY, and ROSEN is We have witnessed over the course of for your question. to the House managers: Our article I alleges corrupt abuse of the last few days and the long day How do the President’s actions differ from today a remarkable lowering of the bar power—corrupt abuse of power con- other holds, and how is the hold and release to the point now where everything is nected to the President’s effort to try of congressionally appropriated assistance to OK as long as the President believes it to cheat in the 2020 election by pres- foreign countries supposed to work? is in his reelection interest. You could suring Ukraine to target an American Mr. Manager CROW. Chief Justice, citizen, Joe Biden, solely for personal conspire with another country to get thank you, Senators, for the question. and political gain and then to solicit its help in your election either by its To be very clear, what the President foreign interference in the 2020 elec- intervening on your behalf to help you did is not the same as a routine with- tion. And the scheme was executed in a or by its intervening to hurt your oppo- holding or reviewing of foreign aid to variety of ways. nent. ensure that it aligns with the Presi- Now, we are told that that is not Now, Professor Dershowitz has indi- cated, based on his theory of what is dent’s policy priorities or to adjust the only OK, but it is beyond the reach of geopolitical developments because, in- the Constitution. Why? Because abuse impeachable, that it has to either be a technical criminal violation, though deed, if that were the case, if the Presi- of power is not impeachable. If you say dent had engaged that process, had abuse of power is impeachable, well, the weight of constitutional authority says the contrary, but he said that it gone through the interagency review then, you are impeaching Presidents process, had gone through the routine for mere policy. Well, that is nonsense. should be something that is either a criminal violation or something akin congressional certification process, we They are not the same thing. would have the documents, we would They are not the same thing as Pro- to a criminal violation—akin to a criminal violation. have the testimony, we would have the fessor Turley has argued. They are not facts to back that up. the same thing as Bill Barr has argued. And what we allege in article I falls into that category because what hap- But, indeed, what we have are none They are not the same thing as Pro- pened here is that President Trump so- of those facts, none of those docu- fessor Dershowitz argued 21 years ago, licited a thing of value in exchange for ments, and in an almost 2-month pe- and they are not the same thing today. an official act. The thing of value was riod, none of the individuals who would They are just not. You can’t solicit for- phony political dirt in the form of an normally be involved in that process eign interference, and the fact that you investigation sought against Joe were aware of the reason for the hold. are unsuccessful in getting it doesn’t Biden, his political opponent, and he Now, let’s look at some prior holds in exonerate you. The failed scheme asked for it explicitly on that July 25 the cases of Obama’s—President doesn’t make you innocent. call and through his intermediaries re- Obama’s—temporary holds. Congress A failed scheme doesn’t make you in- peatedly in the spring, throughout the was notified of the reasons for those nocent. If you take a hostage and you summer, into the fall—solicited a thing holds, and it was always done in the demand a ransom and the police are of value in exchange for two official national interest, whether it be corrup- after you and you release the hostage acts. tion, national security, in support of before you get the money, it doesn’t One official act was the release of our alliances—never the President’s make you innocent. It just makes you $391 million in security aid that was own personal interests. unsuccessful—an unsuccessful crook— passed by this Senate and by the House But let’s look at even President but it doesn’t mitigate the harmful on a bipartisan basis, and the President Trump’s other holds in Afghanistan be- conduct. withheld it without justification. Wit- cause of concerns about terrorism or in And this body should not accept nor nesses said there was no legitimate should the American people accept the Central America because of immigra- public policy reason, no legitimate sub- tion concerns. They were done for rea- idea put out by the President’s lawyers stantive reason, no legitimate foreign today that it is perfectly fine—unim- sons related to official U.S. policy. policy or national security reason for They weren’t concealed. They were peachable—for the President of the withholding the aid. It was withheld to United States to say ‘‘Hey, Russia’’ or public—widely publicized—and had en- solicit foreign interference. gaged not only Congress but the De- ‘‘Hey, Ukraine’’ or ‘‘Hey, China, I want Yes, that is akin to a crime. That is your help in my election’’ because that partment of Defense, Department of your standard, sir. State, and the entire apparatus that is is the policy of the President. We are The President also solicited that po- involved in conducting those holds— calling that policy now. It is the policy litical dirt in exchange for a second of- again, none of which happened here. of the President to demand foreign in- ficial act: the White House meeting terference and withhold money from an that the Ukrainian leader desperately So all of this goes to show—the evi- ally at war unless they get it. That is wanted—so much so that he mentioned dence shows that there is no legitimate what they call policy. it on the July 25 call, and even when policy reason. Why violate the Im- I am sorry; that is what I call corrup- President Trump met with President poundment Control Act? Why keep all tion, and they can dress it up in fine Zelensky at the sidelines of the U.N. in of the people involved in these holds in legalese, but corruption is still corrup- late September, the President of the dark? tion. Ukraine brought up the Oval Office The President’s agencies and advisers The CHIEF JUSTICE. Thank you, meeting again because it was valuable confirmed repeatedly that the aid was Mr. Manager. to him. The President withheld it— in the best interests of our country’s The Senator from Maine. withheld that official act—to solicit national security, including Secretary Ms. COLLINS. Mr. Chief Justice, I foreign interference in the 2020 elec- Esper, Secretary Pompeo, Vice Presi- send a question to the desk. tion. dent PENCE, Ambassador Bolton. Over The CHIEF JUSTICE. Thank you. That is not acceptable in America. and over again, everybody was implor- The question from Senator COLLINS is That undermines our democracy. That ing the President to release the hold— for the House managers: is a stunning, corrupt abuse of power. to no avail. The House Judiciary Committee report ac- And yes, sir, it is akin to a crime. The evidence also shows that even companying the Articles of Impeachment as- The CHIEF JUSTICE. Thank you, the process was unusual, as I talked serted the President committed criminal Mr. Manager. about earlier, and you have heard, over

VerDate Sep 11 2014 23:41 Feb 11, 2020 Jkt 099060 PO 00000 Frm 00044 Fmt 4624 Sfmt 0634 E:\RECORD20\JANUARY\S29JA0.REC S29JA0 sradovich on DSKJLST7X2PROD with CONG-REC-ONLINE January 29, 2020 CONGRESSIONAL RECORD — SENATE S689 the last week, a career OMB official, the judiciary—that had already im- peachment, and therefore, we are going Mr. Sandy, explain that Mr. Duffey, peached him, and they might have a to vote against impeachment even the President’s handpicked political predisposition. though we might think that the cri- appointee who has refused to testify at So in the course of the debate, it was teria for impeachment has been satis- the President’s direction, took over re- finally resolved that the Senate, which fied. sponsibility to authorize the aid. was a very different institution back at Do not vote for impeachment, do not Mr. Sandy confirmed that, in his en- the founding—obviously, Senators were vote for removal, unless you think the tire career at OMB, he had never seen not directly elected; they were ap- criteria articulated by the Senator and or experienced career officials having pointed by the legislature. They were the Congressman and, I believe, by the their apportionment authority re- supposed to serve as an institution Constitution and by Hamilton are met, moved by a political appointee. Sen- that checked on the House of Rep- namely, bipartisan, almost universal ators, this is what we are talking resentatives—more mature, more concern by the United States of Amer- about. There has been a lot of discus- sober, elected for longer periods of ica. That criteria is not met, and the sion. time, with an eye to the future, not so two-thirds requirement really illus- You haven’t heard from me in a little concerned about pleasing the popular trates the importance the Framers while. I suspect there is a reason for masses. gave to that criteria. that. I suspect it is because we don’t Remember, the Framers were very The CHIEF JUSTICE. Thank you, want to talk about the big issue. We concerned about democracy. Nobody counsel. don’t want to talk about what hap- ever called the United States a democ- The Senator from Connecticut. pened here. racy—‘‘a Republic, if you can keep it,’’ Mr. MURPHY. Mr. Chief Justice, I The President abused his authority, not a democracy—very great concern send a question to the desk. put the interests of himself over the in- about that. The CHIEF JUSTICE. Thank you. terests of the country, over the inter- And then, when it came time to as- The majority leader. ests of our national security, over the sign it to the Senate, there was discus- Mr. MCCONNELL. Mr. Chief Justice, interests of our free and fair elections. sion about what the criteria and what while the question is coming up, I un- That is what we are here to talk about. the—obviously—vote should be. The se- derstand that there are two more That is what happened. That is what lection of a two-thirds supermajority Democratic questions and two more the evidence shows. was plainly designed—plainly de- Republican questions. There is no evidence that shows a le- signed—to avoid partisan impeach- The CHIEF JUSTICE. Thank you. gitimate engagement of U.S. policy ments, plainly designed to effectuate The question from Senator MURPHY processes to forward legitimate ends. the very wise philosophy espoused by is to the President’s counsel: The CHIEF JUSTICE. Thank you, the Congressman and the Senator dur- The House Managers have committed to Mr. Manager. ing the Clinton campaign; that is, dur- abide by rulings by the Chief Justice regard- The Senator from Missouri. ing the Clinton impeachment. ing witness testimony and the admissibility Mr. BLUNT. Mr. Chief Justice, I send Never ever have an impeachment or of evidence, and that they will not appeal a question to the desk on behalf of my- removal that is partisan. Always de- such rulings. Will the President’s Counsel make the same commitment, thus obviating self, Senators MCCASKILL—MCSALLY, mand that it be a widespread con- any concerns about an extended trial? rather—LANKFORD—it was a terrifying sensus, a widespread national agree- moment—on behalf of myself, Senator ment, and bipartisan support. What Mr. Counsel SEKULOW. Mr. Chief MCSALLY, Senator LANKFORD, Senator better way of assuring bipartisan sup- Justice, Members of the Senate, we had GARDNER, Senator CAPITO, and Senator port than requiring a two-thirds vote this question. We will say it very clear- WICKER. This is a question for the because almost in every instance, in ly. We are not willing to do that, and President’s counsel. order to get a two-thirds vote, you we are not willing to do that because of The CHIEF JUSTICE. Thank you. need Members of both parties. the constitutional framework upon The question from Senator BLUNT The Johnson case was a perfect ex- which an impeachment is based and the and other Senators is for the counsel ample. In order to get that vote, you constitutional privileges that are at for the President: needed not only the party that was be- stake, with no disrespect at all to the What does the supermajority threshold for hind the impeachment, but you needed Chief Justice. conviction in the Senate, created by the people from the other side as well, and That is not the constitutional design. Framers, say about the type of case that when seven Republicans dissented It is the same thing they are doing should be brought by the House and the based, I believe, largely on the argu- again. Surrender the constitutional standard of proof that should be considered ments of Justice Curtis and others—ar- prerogatives you have, and then we in the Senate? guments I paraphrased here the other will proceed in this way. Give us docu- Mr. Counsel DERSHOWITZ. Mr. Chief day—it lost by merely one vote. The ments, give us witnesses, and if you Justice, Senators, there were several Clinton impeachment, if you remember don’t, we are going to charge you with debates among the Framers, of course: correctly, achieved a 50/50 split. Am I obstruction of Congress. Should you have impeachment at all? right about that? I think I am right In this case, it is ‘‘We are willing to We talked about that—what the cri- about that. And it only lost—and it live,’’ according to the managers, ‘‘by teria for impeachment should be. But could have been 51-to-49. It wouldn’t whatever the Chief Justice decides.’’ then there was another debate: Who have been enough. But that is not the way the constitu- should have the ultimate responsibility So I think it is plain that not only tional framework is set up, and it is for deciding whether the President does the two-thirds requirement serve putting us in exactly the same spot should be removed? as a check on the House, but I think it again: Give up your right to challenge James Madison suggested the Su- sends a message to every Senator. It a subpoena in court; rely only on the preme Court of the United States as a sends a message even to those Senators person who is here—by the way, again, completely nonpartisan institution. who would be in the one-third to recon- with no disrespect to the Chief Justice. Alexander Hamilton was concerned sider because if you are voting for a The Chief Justice is here as the Pre- about that issue, as well, but he said partisan impeachment, you are vio- siding Officer of this proceeding. the Supreme Court would be inappro- lating the spirit of the two-thirds re- So the President is not willing to priate because the judicial branch quirement. forgo those rights and privileges that should not become involved directly as There are many institutions where at he possesses under the Constitution, a branch—OK to preside over the the end of the day—for example, polit- under article II, for expediency. They trial—because ultimately an im- ical conventions—they seek a unani- tried that below in the House. We trust peached President can be put on trial mous vote just to show unity. I would that will not be the decision here in for crimes if he committed crimes. urge some Senators who favor im- the Senate. And Hamilton said that if he were to peachment to look at the two-thirds Thank you, Mr. Chief Justice. be put on trial, he would then be put on and say: If there is not going to be a The CHIEF JUSTICE. Thank you, trial in front of the same institution— two-thirds, there shouldn’t be an im- counsel.

VerDate Sep 11 2014 03:36 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00045 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.065 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S690 CONGRESSIONAL RECORD — SENATE January 29, 2020 The Senator from Mississippi. constraints of the Constitution. Do not didn’t occur until July. That is when Mr. WICKER. Mr. Chief Justice, I allow impeachment to become a nor- the July 25 call occurred. send a question to the desk for Pro- malized weapon, in the words of one of He won the majority in Parliament, fessor Dershowitz on behalf of myself the Framers. Make sure that it is re- but the Parliament was not actually and Senators MCSALLY and MORAN. served only for the most extraordinary going to be seated until later in Au- The CHIEF JUSTICE. The question of cases, like that of Richard Nixon. gust. Mr. Morrison testified that when for counsel to the President, directed This case does not meet those criteria. he and Ambassador Bolton were in to Professor Dershowitz, by Senators The CHIEF JUSTICE. Thank you, Kyiv in August, around August 27, that WICKER, MCSALLY, and MORAN, is this: counsel. the Parliament had just been seated, Professor Dershowitz: You stated during The Senator from Arizona. and Zelensky and his Ministers were your presentation that the House grounds for Ms. SINEMA. Mr. Chief Justice, I tired because they had been up all impeachment amount to the ‘‘most dan- submit a question to the President’s night. They kept the Parliament up gerous precedent.’’ What specific danger does counsel. late in session to pass the reform agen- this impeachment pose to our republic? To The CHIEF JUSTICE. Thank you. da right then, including things like its citizens? The question from Senator SINEMA to eliminating immunity for members of Mr. Counsel DERSHOWITZ. Thank President’s counsel is this: the Parliament from corruption, pros- you, Mr. Chief Justice. Thank you, The administration notified Congress of ecutions, and the legislature just set Senators. the hold of the Northern Triangle countries’ up the newly formed corruption court. I came of age during the period of funds in 2019, announced its decision to with- So these developments were positive McCarthyism. I then became a young hold aid to Afghanistan in September 2019, developments, but then Mr. Morrison professor during the divisive time of and worked with Congress for months in 2018 testified that President Zelensky, when the Vietnam war. I, as you, lived regarding funds being withheld due to Paki- he spoke to Vice President PENCE in through the division during the Iraq stan’s lack of progress meeting its counter- Warsaw, discussed these things, and war and 9/11 and following 9/11. terrorism responsibilities. In these in- President Zelensky went through what stances, the receiving countries knew the he was doing, and then that informa- I have never lived at a more divisive funds were being withheld to change behav- time in the United States of America ior and further publicly-stated American tion was relayed back to the President. than today. Families have broken up. policy. Why, when the administration with- So the hold had been in place so that Friends don’t speak to each other. Dia- held the Ukraine security assistance, did it the President could, within the U.S. logue has disappeared on university not notify Congress, or make Ukraine or Government, privately consider this in- campuses. We live in extraordinarily partner countries publicly aware of the hold formation, not to send a signal to the dangerous times. I am not suggesting and the steps needed to resolve the hold? outside world. that the impeachment decision by the Mr. Counsel PHILBIN. Mr. Chief Jus- This plays into some of the ideas House has brought that on us. Perhaps tice, Senator, thank you for the ques- that the House manager presented that it is merely a symptom of a terrific tion. somehow this was terrible; it sent a problem that we have facing us and I think that, in all of those instances signal to the Russians. Part of the likely to face us in the future. that were listed in the question, it was whole point, Ambassador Volker ex- I think it is the responsibility of this clear that withholding the aid was plained, was that there was concern mature Senate, whose job it is to look meant to send a signal. It was done that it not become public because it forward, whose job it is to ensure our publicly, and it was meant to send a would then not send a signal. That is future, to make sure the divisions signal to the country. I think that in what happened until the POLITICO ar- don’t grow even greater. the testimony before the House here, ticle came out on August 28. I think Were the President of the United Ambassador Volker made clear that he that is the best way to understand the States to be removed today, it would and others hoped that the hold would difference and approach there. Thank pose existential dangers to our ability not become public because they did not you. The CHIEF JUSTICE. Thank you, to live together as a people. The deci- want there to be any signal to the counsel. sion would not be accepted by many Ukrainians or to others. Mr. YOUNG. Mr. Chief Justice. Americans. Nixon’s decision was ac- People have talked here—the House The CHIEF JUSTICE. The Senator cepted—easily accepted. I think that managers talked about how, well, even from Indiana. decisions that would have been made in if the aid, when it was withheld, didn’t Mr. YOUNG. I send a question to the other cases would be accepted. This one lead to anything not being purchased desk on behalf of myself and Senator would not be easily accepted because it over the summer, it was still dangerous BRAUN. is such a divided country, such a di- because it sent a signal to the Rus- The CHIEF JUSTICE. Thank you. vided time. sians. The whole point was, it wasn’t The Senator from Indiana and Senator If the precedent is established that a public. The Ukrainians didn’t know. BRAUN ask both parties the following President can be removed on the basis The Russians didn’t know. It wasn’t question: of such vague and recurring and open- being done to send a signal; it was to We were promised by House managers that ended and targeted terms as ‘‘abuse of address concerns. the evidence supporting each article of im- power’’—40 Presidents have been ac- The President had raised concerns, peachment would be ‘‘overwhelming’’ and cused of abuse of power. I bet you all of and he wanted time to have those con- ‘‘uncontested.’’ Virtually every day, House them have. We just don’t know some of cerns addressed. He wanted to under- managers have insisted that the Senate can- the charges against some of them, but stand better burden-sharing—the issue not have a trial without witnesses. Do both parties agree that the Senate has included in we have documentation on so many. If that is reflected in the June 24 email evidence in this trial the testimony of every that criteria were to be used, this that I referred to earlier; it is referred single witness from which the House heard would just be the beginning of a recur- to in the July 25 call transcripts—and before they voted, except for the intelligence ring weaponization of impeachment he wanted to understand corruption community IG report that Chairman SCHIFF whenever one House is controlled by issues. He raised corruption issues. kept secret? one party and the Presidency is con- Over the course of the summer, the We begin with the House managers. trolled by another party. testimony of Mr. Morrison in par- Mr. Manager SCHIFF. Let me take Now the House managers say there ticular below explained that there were this opportunity, if I can, to answer a are dangers of not impeaching, but developments on corruption. President few questions. First, is the fact that those dangers can be eliminated in 8 Zelensky had just been elected in the testimony of the witnesses before months. If you really feel there is a April. At that time, multiple witnesses the House sufficient to relieve the Sen- strong case, then campaign against the testified that it was unclear. He had ate of an obligation to have a trial? President. But the danger of impeach- run on a reform agenda, but it was un- And the answer is no. There is no rea- ment will last my lifetime, your life- clear what he would be able to accom- son, and, indeed, every other Senate time, and the lifetime of our children. plish because it was unclear whether or trial—impeachment trial in history— So I urge you respectfully, you are not he would secure a majority in the has involved witnesses who did not tes- the guardians of our future. Follow the Ukrainian Parliament. Those elections tify before the House. This will be the

VerDate Sep 11 2014 03:36 Jan 30, 2020 Jkt 099060 PO 00000 Frm 00046 Fmt 4624 Sfmt 0634 E:\CR\FM\G29JA6.067 S29JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 29, 2020 CONGRESSIONAL RECORD — SENATE S691 first departure. It shouldn’t be if it is One final point. Mr. Sekulow said 29 times—the House managers have to be a fair trial. that is not how the Constitution used the phrase ‘‘overwhelming, I want to quickly respond to a couple works. The Constitution doesn’t allow uncontested, sufficient.’’ ‘‘Proved’’ of other points. The question was the Chief Justice to make those deci- they said 31 times. Now, that is just sions, but, you know, he doesn’t say asked: Why didn’t we charge bribery? what the record says. the Constitution prohibits. The Con- And the answer is we could have It is true that the record from the stitution permits it if they will agree, House was accepted provisionally sub- charged bribery. In fact, we outlined but they won’t. And he said it is the the facts that constitute bribery in the ject to evidentiary objections, but they same as in the House, and it is the are the ones who have said ‘‘over- article, but ‘‘abuse of power’’ is the same as in the House. And it is the highest crime. The Framers have it in whelmingly’’ and ‘‘proved.’’ Now, we, of same in this way: If they were oper- course, disagree with their conclusions mind as the highest crime. The facts ating in good faith, if they really want- we allege within that do constitute as a matter of fact and as a matter of ed a fair resolution, if they weren’t just law. But for them to come up here and bribery, but had we charged bribery shooting for delay, they would allow within the ‘‘abuse of power’’ article, I to argue ‘‘proved’’ and ‘‘overwhelm- the Chief Justice to make these deci- ingly’’ a total of, I guess, 64 times in a can assure you that counsel here would sions. be arguing: You have charged two of- couple of days, tells me a lot about But what they do not want is they do what they want. fenses within the same article. That not want you to hear John Bolton. And What we are asking for is this pro- makes that invalid. We wouldn’t have why? Because when you hear, graphi- ceeding to continue, and with that, we had Alan Dershowitz making that ar- cally, a man saying the President of are done. gument because he says abuse of power the United States told me to withhold Thank you, Mr. Chief Justice is not impeachable. They would have aid from our ally, to coerce foreign as- had Jonathan Turley here making that sistance in his election, when the The CHIEF JUSTICE. Thank you, argument. If we split them into two American people hear that firsthand— counsel. separate articles—one for abuse of not filtered through our statements— The majority leader is recognized. power and one for bribery—they would they will recognize impeachable con- f have argued you have taken one crime duct when they see it. and made it into two. The CHIEF JUSTICE. Thank you, ADJOURNMENT UNTIL 1 P.M. Mr. Manager. The important constitutional point TOMORROW Mr. Sekulow, you have 21⁄2 minutes. here is not that the acts within abuse Mr. Counsel SEKULOW. Thank you, Mr. MCCONNELL. Mr. Chief Justice, of power constitute bribery—although Mr. Chief Justice. I ask unanimous consent that the trial they do. The important point is we With regard to the last statement, I adjourn until 1 p.m., Thursday, tomor- charged a constitutional crime—the am just going to say: Asked and an- row, January 30, and this order also most serious crime. The Founders gave swered. I have answered the question constitute the adjournment of the Sen- the President enormous powers, and about the issue of moving forward if ate. their most important consideration there were witnesses and our view on There being no objection, at 11:05 was that the President not abuse that that. I don’t have to say anything else. p.m., the Senate, sitting as a Court of power, and they provided a remedy, Now, with regard to the question Impeachment, adjourned until Thurs- and that remedy is impeachment. that was actually presented, 29 times— day, January 30, 2020, at 1 p.m.

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