Congressional Record United States Th of America PROCEEDINGS and DEBATES of the 116 CONGRESS, SECOND SESSION

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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, TUESDAY, JANUARY 21, 2020 No. 12 Senate The Senate met at 12:30 p.m. and was Framers of our Constitution knew that crats had received when they were in called to order by the President pro the Senate—and only the Senate— the minority back in 1998. Here in the tempore (Mr. GRASSLEY). could handle. Our Founders trusted the Senate, every single Senator will have f Senate to rise above short-term pas- exactly the same rights and exactly sions and factionalism. They trusted the same ability to ask questions. PRAYER the Senate to soberly consider what The House broke with fairness by The Chaplain, Dr. Barry C. Black, of- has actually been proven and which cutting President Trump’s counsel out fered the following prayer: outcome best serves the Nation. That of their inquiry to an unprecedented Let us pray. is a pretty high bar, and you might say degree. Here in the Senate, the Presi- Eternal God, You are our rock and that later today, this body will take dent’s lawyers will finally receive a fortress. Keep us from dishonor. Only our entrance exam. level playing field with the House by walking in Your precepts can our Today, we will consider and pass an Democrats and will finally be able to lawmakers remain within the circle of organizing resolution that will struc- present the President’s case. Finally, Your protection and blessings. Lord, ture the first phase of the trial. This some fairness. On every point, our straightforward turn their ears to listen to Your admo- initial step will offer an early signal to resolution will bring the clarity and nition, as You infuse them with the our country. Can the Senate still serve fairness that everyone deserves—the courage to obey Your commands. We our founding purpose? Can we still put President of the United States, the have trusted You since the birth of this fairness, evenhandedness, and histor- House of Representatives, and the land we love. That is why we will de- ical precedent ahead of the partisan American people. This is the fair road- clare Your glory as long as we have passions of the day? Today’s vote will map for our trial. We need it in place contain some answers. The organizing breath. Lord, as our Senators prepare before we can move forward, so the resolution we will put forward already to gather for today’s impeachment Senate should prepare to remain in ses- has the support of a majority of the trial, we declare that You alone are our sion today until we complete this reso- Senate. That is because it sets up a hope. lution and adopt it. We pray in Your mighty Name. structure that is fair, evenhanded, and This basic, four-part structure aligns Amen. tracks closely with past precedents with the first steps of the Clinton im- f that were established unanimously. peachment trial in 1999. Twenty-one After pretrial business, the resolu- PLEDGE OF ALLEGIANCE years ago, 100 Senators agreed unani- tion establishes the four things that mously that this roadmap was the The President pro tempore led the need to happen next. First, the Senate right way to begin the trial. All 100 Pledge of Allegiance, as follows: will hear an opening presentation from Senators agreed the proper time to I pledge allegiance to the Flag of the the House managers. Second, we will consider the question of potential wit- United States of America, and to the Repub- hear from the President’s counsel. nesses was after—after—opening argu- lic for which it stands, one nation under God, Third, Senators will be able to seek ments and Senators’ questions. indivisible, with liberty and justice for all. further information by posing written Now, some outside voices have been f questions to either side through the urging the Senate to break with prece- Chief Justice. Fourth, with all that in- dent on this question. Loud voices, in- RECOGNITION OF THE MAJORITY formation in hand, the Senate will con- LEADER cluding the leadership of the House ma- sider whether we feel any additional jority, colluded with Senate Democrats The PRESIDING OFFICER (Mr. evidence or witnesses are necessary to and tried to force the Senate to CRUZ). The majority leader is recog- evaluate whether the House case has precommit ourselves to seek specific nized. cleared or failed to clear the high bar witnesses and documents before Sen- f of overcoming the presumption of inno- ators had even heard opening argu- cence and undoing a democratic elec- ments or even asked questions. These IMPEACHMENT tion. are potential witnesses whom the Mr. MCCONNELL. Mr. President, last The Senate’s fair process will draw a House managers themselves—them- Thursday, the U.S. Senate crossed one sharp contrast with the unfair and selves—declined to hear from, whom of the greatest thresholds that exist in precedent-breaking inquiry that was the House itself declined to pursue our system of government. We began carried on by the House of Representa- through the legal system during its just the third Presidential impeach- tives. The House broke with precedent own inquiry. ment trial in American history. This is by denying Members of the Republican The House was not facing any dead- a unique responsibility which the minority the same rights that Demo- line. They were free to run whatever

∑ 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 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00001 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.000 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S288 CONGRESSIONAL RECORD — SENATE January 21, 2020 investigation they wanted to run. If the President and with other executive ously oppose any attempt to begin the they wanted witnesses who would trig- branch officials lie at the very core of trial unless the reporters trying to ger legal battles over Presidential the President’s constitutional privi- enter the Galleries are seated. privilege, they could have had those lege. Pursuing those witnesses could The press is here to inform the Amer- fights. However, the chairman of the indefinitely delay the Senate trial and ican public about these pivotal events House Intelligence Committee and the draw our body into a protracted and in our Nation’s history. We must make chairman of the House Judiciary Com- complex legal fight over Presidential sure they are able to. Some may not mittee decided not to. They decided privilege. Such litigation could poten- want what happens here to be public; their inquiry was finished and moved tially have permanent repercussions we do. right ahead. The House chose not to for the separation of powers and the in- Mr. President, after the conclusion of pursue the same witnesses they appar- stitution of the Presidency that Sen- my remarks, the Senate will proceed to ently would now like—would now ators would need to consider very, very the impeachment trial of President like—the Senate to precommit to pur- carefully. Donald John Trump for committing suing ourselves. So the Senate is not about to rush high crimes and misdemeanors. Presi- As I have been saying for weeks, no- into these weighty questions without dent Trump is accused of coercing a body—nobody—will dictate Senate pro- discussion and without deliberation— foreign leader into interfering in our cedure to U.S. Senators. A majority of without even hearing opening argu- elections to benefit himself and then us are committed to upholding the ments first. There were good reasons doing everything in his power to cover unanimous, bipartisan Clinton prece- why 100 out of 100 Senators agreed two it up. If proved, the President’s actions dent against outside influences with re- decades ago to cross these bridges when are crimes against democracy itself. spect to the proper timing of these we came to them. That is what we will It is hard to imagine a greater sub- midtrial questions. So if any amend- do this time as well. Fair is fair. The version of our democracy than for pow- ments are brought forward to force pre- process was good enough for President ers outside our borders to determine mature decisions on midtrial ques- Clinton, and basic fairness dictates it the elections there within. For a for- tions, I will move to table such amend- ought to be good enough for this Presi- eign country to attempt such a thing ments and protect our bipartisan dent as well. on its own is bad enough. For an Amer- precedent. If a Senator moves to amend The eyes are on the Senate. The ican President to deliberately solicit the resolution or to subpoena specific country is watching to see if we can such a thing—to blackmail a foreign witnesses or documents, I will move to rise to the occasion. Twenty-one years country with military assistance to table such motions because the Senate ago, 100 Senators, including a number help him win an election—is unimagi- will decide those questions later in the of us who sit in the Chamber today, did nably worse. I can’t imagine any other trial, just like we did back in 1999. just that. The body approved a fair, President doing this. Now, today may present a curious commonsense process to guide the be- Beyond that, for then the President situation. We may hear House man- ginning of a Presidential impeachment to deny the right of Congress to con- agers themselves agitate for such trial. Today, two decades later, this duct oversight, deny the right to inves- amendments. We may hear a team of Senate will retake that entrance exam. tigate any of his activities, to say arti- managers led by the House Intelligence The basic structure we are proposing is cle II of the Constitution gives him the and Judiciary Committees chairmen just as eminently fair and evenhanded right to ‘‘do whatever [he] wants’’—we argue that the Senate must precommit as it was back then. The question is are staring down an erosion of the sa- ourselves to reopen the very investiga- whether the Senators are themselves cred democratic principles for which tion they themselves oversaw and vol- ready to be as fair and as evenhanded. our Founders fought a bloody war of untarily shut down. It would be curious The Senate made a statement 21 independence. Such is the gravity of to hear these two House chairmen years ago. We said that Presidents of this historic moment. argue that the Senate must precommit either party deserve basic justice and a Once Senator INHOFE is sworn in at 1 ourselves to supplementing their own fair process. A challenging political p.m., the ceremonial functions at the evidentiary record, to enforcing sub- moment like today does not make such beginning of a Presidential trial will be poenas they refused to enforce, to statements less necessary but all the complete. The Senate then must deter- supplementing a case they themselves more necessary, in fact. mine the rules of the trial. The Repub- have recently described as ‘‘over- So I would say to my colleagues lican leader will offer an organizing whelming’’—‘‘overwhelming’’—and across the aisle: There is no reason resolution that outlines his plan—his ‘‘beyond any reasonable doubt.’’ why the vote on this resolution ought plan—for the rules of the trial. It is These midtrial questions could po- to be remotely partisan. There is no completely partisan. It was kept secret tentially take us even deeper into even reason other than base partisanship to until the very eve of the trial. Now more complex constitutional waters. say this particular President deserves a that it is public, it is very easy to see For example, many Senators, including radically different rule book than what why. me, have serious concerns about blur- was good enough for a past President of ring—blurring—the traditional role be- your own party. I urge every single The McConnell rules seem to be de- tween the House and the Senate within Senator to support our fair resolution. signed by President Trump for Presi- the impeachment process. The Con- I urge everyone to vote to uphold the dent Trump. It asks the Senate to rush stitution divides the power to impeach Senate’s unanimous bipartisan prece- through as fast as possible and makes from the power to try. The first be- dent of a fair process. getting evidence as hard as possible. It could force presentations to take place longs solely to the House, and with the f power to impeach comes the responsi- at 2 o’clock or 3 o’clock in the morning bility to investigate. RECOGNITION OF THE MINORITY so the American people will not see The Senate agreeing to pick up and LEADER them. carry on the House’s inadequate inves- The PRESIDING OFFICER. The In short, the McConnell resolution tigation would set a new precedent Democratic leader is recognized. will result in a rushed trial, with little that could incentivize frequent and f evidence, in the dark of the night—lit- hasty impeachments from future House erally the dark of night. If the Presi- majorities. It could dramatically IMPEACHMENT dent is so confident in his case, if Lead- change the separation of powers be- Mr. SCHUMER. Mr. President, before er MCCONNELL is so confident the tween the House and the Senate if the I begin, there has been well-founded President did nothing wrong, why don’t Senate agrees we will conduct both the concern that the additional security they want the case to be presented in investigation and the trial of an im- measures required for access to the broad daylight? peachment. Galleries during the trial could cause On something as important as im- What is more, some of the proposed reporters to miss some of the events on peachment, the McConnell resolution new witnesses include executive branch the Senate floor. I want to assure ev- is nothing short of a national disgrace. officials whose communications with eryone in the press that I will vocifer- This will go down—this resolution—as

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00002 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.002 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S289 one of the darker moments in the Sen- own men. The documents are not dent is accused of coercing a foreign ate history, perhaps one of even the Democratic documents. They are docu- power to interfere in our elections to darkest. ments, period. We don’t know if the help himself. It is the job of the Senate Leader MCCONNELL has just said he evidence of the witnesses or the docu- to determine if these very serious wants to go by the Clinton rules. Then ments will be exculpatory to the Presi- charges are true. The very least we can why did he change them, in four impor- dent or incriminating, but we have an do is examine the facts, review the doc- tant ways at minimum, to all make the obligation—a solemn obligation, par- uments, hear the witnesses, try the trial less transparent, less clear, and ticularly now during this most deep case, not run from it, not hide from with less evidence? He said he wanted and solemn part of our Constitution— it—try it. to get started in exactly the same way. to seek the truth and then let the chips If the President commits high crimes It turns out, contrary to what the lead- fall where they may. and misdemeanors and Congress reer said—I am amazed he could say it My Republican colleagues have of- fuses to act, refuses even to conduct a with a straight face—that the rules are fered several explanations for opposing fair trial of his conduct, then Presi- the same as the Clinton rules. The witnesses and documents at the start dents—this President and future Presi- rules are not even close to the Clinton of the trial. None of them has much dents—can commit impeachable crimes rules. merit. Republicans have said we should with impunity, and the order and rigor Unlike the Clinton rules, the McCon- deal with the question of witnesses of our democracy will dramatically de- nell resolution does not admit the later in the trial. Of course, it makes cline. record of the House impeachment pro- no sense to hear both sides present The fail-safe—the final fail-safe of ceedings into evidence. Leader MCCON- their case first and then afterward de- our democracy will be rendered mute. NELL wants a trial with no existing evi- cide if the Senate should hear evidence. The most powerful check on the Execu- dence and no new evidence. A trial The evidence is supposed to inform ar- tive—the one designed to protect the without evidence is not a trial; it is a guments, not come after they are com- people from tyranny—will be erased. coverup. pleted. In a short time, my colleagues, each Second, unlike the Clinton rules, the Some Republicans have said the Sen- of us, will face a choice about whether McConnell resolution limits presen- ate should not go beyond the House to begin this trial in search of the tation by the parties to 24 hours per record by calling any witnesses, but truth or in service of the President’s side over only 2 days. We start at 1, 12 the Constitution gives the Senate the desire to cover it up, whether the Sen- hours a day, we are at 1 a.m., and that sole power to try impeachments—not ate will conduct a fair trial and a full is without breaks. It will be later. the sole power to review, not the sole airing of the facts or rush to a pre- Leader MCCONNELL wants to force the power to rehash but to try. determined political outcome. managers to make important parts of Republicans have called our request My colleagues, the eyes of the Na- their case in the dark of night. for witnesses and documents political. No. 3, unlike the Clinton rules, the If seeking the truth is political, then tion, the eyes of history, the eyes of McConnell resolution places an addi- the Republican Party is in serious the Founding Fathers are upon us. His- tional hurdle to get witnesses and doc- trouble. tory will be our final judge. Will Sen- uments by requiring a vote on whether The White House has said that the ators rise to the occasion? such motions are even in order. If that Articles of Impeachment are brazen I yield the floor. vote fails, then no motions to subpoena and wrong. Well, if the President be- f lieves his impeachment is so brazen witnesses and documents will be in RESERVATION OF LEADER TIME order. and wrong, why won’t he show us why? I don’t want anyone on the other side Why is the President so insistent that The PRESIDING OFFICER. Under to say: I am going to vote no first on no one come forward, that no docu- the previous order, the leadership time witnesses, but then later I will deter- ments be released? If the President’s is reserved. mine—if they vote for McConnell’s res- case is so weak, that none of the Presi- f olution, they are making it far more dent’s men can defend him under oath, difficult to vote in the future, later on shame on him and those who allow it CONCLUSION OF MORNING in the trial. to happen. What is the President hid- BUSINESS And finally, unlike the Clinton rules, ing? What are our Republican col- The PRESIDING OFFICER. Morning the McConnell resolution allows a mo- leagues hiding? If they weren’t afraid business is closed. tion to dismiss at any time—any of the truth, they would say: Go right f time—in the trial. ahead, get at the truth, get witnesses, In short, contrary to what the leader get documents. RECESS SUBJECT TO THE CALL OF has said, the McConnell rules are not In fact, at no point over the last few THE CHAIR at all like the Clinton rules. The Re- months have I heard a single, solitary The PRESIDING OFFICER. Under publican leader’s resolution is based argument on the merits of why wit- the previous order, the Senate stands neither in precedent nor in principle. It nesses and documents should not be in recess, subject to the call of the is driven by partisanship and the poli- part of the trial. No Republicans ex- Chair. tics of the moment. plained why less evidence is better Thereupon, the Senate, at 12:58 p.m., Today I will be offering amendments than more evidence. recessed subject to the call of the Chair to fix the many flaws in Leader MCCON- Nevertheless, Leader MCCONNELL is and reassembled at 1:18 p.m., when NELL’s deeply unfair resolution and poised to ask the Senate to begin the called to order by the CHIEF JUSTICE. seek the witnesses and documents we first impeachment trial of a President have requested, beginning with an in history without witnesses; that f amendment to have the Senate sub- rushes through the arguments as TRIAL OF DONALD J. TRUMP, poena White House documents. quickly as possible; that, in ways both PRESIDENT OF THE UNITED Let me be clear. These amendments shameless and subtle, will conceal the STATES are not dilatory. They only seek one truth—the truth—from the American thing: the truth. That means relevant people. The CHIEF JUSTICE. The Senate will convene as a Court of Impeach- documents. That means relevant wit- Leader MCCONNELL claimed that the nesses. That is the only way to get a House ‘‘ran the most rushed, least ment. fair trial, and everyone in this body thorough, and most unfair impeach- THE JOURNAL knows it. ment inquiry in modern history.’’ The The CHIEF JUSTICE. If there is no Each Senate impeachment trial in truth is, Leader MCCONNELL is plotting objection, the Journal of proceedings of our history, all 15 that were brought to the most rushed, least thorough, and the trial are approved to date. completion, feature witnesses—every most unfair impeachment trial in mod- The CHIEF JUSTICE. I am aware of single one. ern history, and it begins today. one Senator present who was unable to The witnesses we request are not The Senate has before it a very take the impeachment oath last Thurs- Democrats. They are the President’s straightforward question. The Presi- day.

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00003 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.003 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S290 CONGRESSIONAL RECORD — SENATE January 21, 2020 Will he please rise and raise his right the right of the American people to freely Third, the two individuals who have stated hand and be sworn. choose their President. This is a brazen and for the record that they spoke to the Presi- Do you solemnly swear that in all unlawful attempt to overturn the results of dent about the subject actually exonerate him. Ambassador to the European Union things pertaining to the trial of the im- the 2016 election and interfere with the 2020 election—now just months away. The highly Gordon Sondland stated that when he asked peachment of Donald John Trump, partisan and reckless obsession with im- the President what he wanted from Ukraine, President of the United States, now peaching the President began the day he was the President said: ‘‘I want nothing. I want pending, you will do impartial justice inaugurated and continues to this day. nothing. I want no quid pro quo.’’ Senator according to the Constitution and laws, The Articles of Impeachment are constitu- Ron Johnson reported that, when he asked so help you God? tionally invalid on their face. They fail to al- the President whether there was any connec- Mr. INHOFE. I do. lege any crime or violation of law whatso- tion between security assistance and inves- ever, let alone ‘‘high Crimes and Mis- tigations, the President responded: ‘‘No way. The CHIEF JUSTICE. The Secretary I would never do that.’’ House Democrats ig- will note the name of the Senator who demeanors,’’ as required by the Constitution. They are the result of a lawless process that nore these facts and instead rely entirely on has just taken the oath and will violated basic due process and fundamental assumptions, presumptions, and speculation present the oath book to him for signa- fairness. Nothing in these Articles could per- from witnesses with no first-hand knowl- ture. mit even beginning to consider removing a edge. Their accusations are founded exclu- The CHIEF JUSTICE. The Sergeant duly elected President or warrant nullifying sively on inherently unreliable hearsay that at Arms will make the proclamation. an election and subverting the will of the would never be accepted in any court in our country. American people. The Sergeant at Arms, Michael C. Fourth, the bilateral presidential meeting The Articles of Impeachment now before Stenger, made proclamation as follows: took place in the ordinary course, and the the Senate are an affront to the Constitution Hear ye! Hear ye! Hear ye! All persons are security assistance was sent, all without the of the United States, our democratic institu- commanded to keep silent, on pain of impris- Ukrainian government announcing any in- tions, and the American people. The Articles onment, while the Senate of the United vestigations. themselves—and the rigged process that States is sitting for the trial of the Articles Not only does the evidence collected by brought them here—are a transparently po- of Impeachment exhibited by the House of House Democrats refute each and every one litical act by House Democrats. They debase Representatives against Donald John Trump, of the factual predicates underlying the first the grave power of impeachment and the sol- President of the United States. Article, the transcripts of the April 21 call emn responsibility that power entails. They and the July 25 call disprove what the Arti- The CHIEF JUSTICE. The majority must be rejected. The House process violated cle alleges. When the House Democrats real- leader is recognized. every precedent and every principle of fair- ized this, Mr. Schiff created a fraudulent Mr. MCCONNELL. Mr. Chief Justice, ness governing impeachment inquiries for version of the July 25 call and read it to the I would like to state that, for the infor- more than 150 years. Even so, all that House American people at a congressional hearing, mation of all Senators, the trial briefs Democrats have succeeded in proving is that without disclosing that he was simply mak- filed yesterday by the parties have the President did absolutely nothing wrong. ing it all up. The fact that Mr. Schiff felt the President Trump categorically and un- need to fabricate a false version of the July been printed and are now at each Sen- equivocally denies each and every allegation 25 call proves that he and his colleagues ator’s desk. in both Articles of Impeachment. The Presi- knew there was absolutely nothing wrong UNANIMOUS CONSENT AGREEMENT—AUTHORITY dent reserves all rights and all available de- with that call. TO PRINT SENATE DOCUMENTS fenses to the Articles of Impeachment. For House Democrats ran a fundamentally The CHIEF JUSTICE. The following the reasons set forth in this Answer and in flawed and illegitimate process that denied the President every basic right, including documents will be submitted to the the forthcoming Trial Brief, the Senate must reject the Articles of Impeachment. the right to have counsel present, the right Senate for printing in the Senate Jour- to cross-examine witnesses, and the right to I. THE FIRST ARTICLE OF IMPEACHMENT MUST nal: the precept, issued January 16, present evidence. Despite all this, the infor- BE REJECTED 2020; the writ of summons, issued on mation House Democrats assembled actually January 16, 2020; and the receipt of The first Article fails on its face to state disproves their claims against the President. an impeachable offense. It alleges no crimes The President acted at all times with full summons, dated January 16, 2020. at all, let alone ‘‘high Crimes and Mis- The following documents, which were constitutional and legal authority and in our demeanors,’’ as required by the Constitution. national interest. He continued his Adminis- received by the Secretary of the Sen- In fact, it alleges no violation of law whatso- tration’s policy of unprecedented support for ate, will be submitted to the Senate for ever. House Democrats’ ‘‘abuse of power’’ Ulaaine, including the delivery of lethal printing in the Senate Journal, pursu- claim would do lasting damage to the separa- military aid that was denied to the Ukrain- ant to the order of January 16, 2020: the tion of powers under the Constitution. ians by the prior administration. answer of Donald John Trump, Presi- The first Article also fails on the facts, be- The first Article is therefore constitu- dent of the United States, to the Arti- cause President Trump has not in any way tionally invalid, founded on falsehoods, and ‘‘abused the powers of the Presidency.’’ At must be rejected. cles of Impeachment exhibited by the all times, the President has faithfully and ef- House of Representatives against him II. THE SECOND ARTICLE OF IMPEACHMENT MUST fectively executed the duties of his Office on BE REJECTED on January 16, 2020, received by the behalf of the American people. The Presi- The second Article also fails on its face to Secretary of the Senate on January 18, dent’s actions on the July 25, 2019, telephone state an impeachable offense. It does not al- 2020; the trial brief filed by the House call with President Volodymyr Zelensky of lege any crime or violation of law whatso- of Representatives, received by the Ukraine (the ‘‘July 25 call’’), as well as on ever. To the contrary, the President’s asser- Secretary of the Senate on January 18, the earlier April 21, 2019, telephone call (the tion of legitimate Executive Branch con- 2020; the trial brief filed by the Presi- ‘‘April 21 call’’), and in all surrounding and fidentiality interests grounded in the separa- related events, were constitutional, perfectly tion of powers cannot constitute obstruction dent, received by the Secretary of the legal, completely appropriate, and taken in Senate on January 20, 2020; the replica- of Congress. furtherance of our national interest. Furthermore, the notion that President tion of the House of Representatives, President Trump raised the important Trump obstructed Congress is absurd. Presi- received by the Secretary of the Senate issue of burden sharing on the July 25 call, dent Trump acted with extraordinary and on January 20, 2020; and the rebuttal noting that other European countries such unprecedented transparency by declassifying brief filed by the House of Representa- as Germany were not carrying their fair and releasing the transcript of the July 25 tives, received by the Secretary of the share. President Trump also raised the im- call that is at the heart of this matter. Senate on January 21, 2020. portant issue of Ukrainian corruption. Presi- Following the President’s disclosure of the dent Zelensky acknowledged these concerns Without objection, the foregoing doc- July 25 call transcript, House Democrats on that same call. issued a series of unconstitutional subpoenas uments will be printed in the CONGRES- Despite House Democrats having run an for documents and testimony. They issued SIONAL RECORD. entirely illegitimate and one-sided process, their subpoenas without a congressional vote The documents follow: several simple facts were established that and, therefore, without constitutional au- [In Proceedings Before the United States prove the President did nothing wrong: thority. They sought testimony from a num- Senate] First, the transcripts of both the April 21 ber of the President’s closest advisors de- call and the July 25 call make absolutely spite the fact that, under longstanding, bi- Answer of President Donald J. Trump clear that the President did nothing wrong. partisan practice of prior administrations of THE HONORABLE DONALD J. TRUMP, PRESI- Second, President Zelensky and other both political parties and similarly long- DENT OF THE UNITED STATES, HEREBY RE- Ukrainian officials have repeatedly con- standing guidance from the Department of SPONDS: firmed that the call was ‘‘good’’ and ‘‘nor- Justice, those advisors are absolutely im- The Articles of Impeachment submitted by mal,’’ that there was no quid pro quo, and mune from compelled testimony before Con- House Democrats are a dangerous attack on that no one pressured them on anything. gress related to their official duties. And

VerDate Sep 11 2014 20:14 Feb 11, 2020 Jkt 099060 PO 00000 Frm 00004 Fmt 4624 Sfmt 0634 E:\RECORD20\JANUARY\S21JA0.REC S21JA0 sradovich on DSKJLST7X2PROD with CONG-REC-ONLINE January 21, 2020 CONGRESSIONAL RECORD — SENATE S291 they sought testimony disclosing the Execu- [In the Senate of the United States Sitting Although these theories were groundless, tive Branch’s confidential communications as a Court of Impeachment] President Trump sought a public announce- and internal decision-making processes on In re Impeachment of President Donald J. ment by Ukraine of investigations into them matters of foreign relations and national se- Trump in order to help his 2020 reelection campaign.10 An announcement of a Ukrainian in- curity, despite the well-established constitu- TRIAL MEMORANDUM OF THE UNITED STATES vestigation into one of his key political ri- tional privileges and immunities protecting HOUSE OF REPRESENTATIVES IN THE IM- vals would be enormously valuable to Presi- PEACHMENT TRIAL OF PRESIDENT DONALD J. such information. As the Supreme Court has dent Trump in his efforts to win reelection TRUMP recognized, the President’s constitutional in 2020—just as the FBI’s investigation into authority to protect the confidentiality of INTRODUCTION Hillary Clinton’s emails had helped him in Executive Branch information is at its apex President Donald J. Trump used his offi- 2016. And an investigation suggesting that in the field of foreign relations and national cial powers to pressure a foreign government President Trump did not benefit from Rus- security. House Democrats also barred the to interfere in a United States election for sian interference in the 2016 election would attendance of Executive Branch counsel at his personal political gain, and then at- give him a basis to assert—falsely—that he witness proceedings, thereby preventing the tempted to cover up his scheme by obstruct- was the victim, rather than the beneficiary, ing Congress’s investigation into his mis- President from protecting important Execu- of foreign meddling in the last election. conduct. The Constitution provides a remedy Ukraine’s announcement of that investigative Branch confidentiality interests. when the President commits such serious tion would bolster the perceived legitimacy Notwithstanding these abuses, the Trump abuses of his office: impeachment and re- of his Presidency and, therefore, his political Administration replied appropriately to moval. The Senate must use that remedy standing going into the 2020 race. these subpoenas and identified their con- now to safeguard the 2020 U.S. election, pro- Overwhelming evidence shows that Presi- stitutional defects. Tellingly, House Demo- tect our constitutional form of government, dent Trump solicited these two investigations in order to obtain a personal political crats did not seek to enforce these constitu- and eliminate the threat that the President poses to America’s national security. benefit, not because the investigations tionally defective subpoenas in court. To the The House adopted two Articles of Im- served the national interest.11 The Presi- contrary, when one subpoena recipient peachment against President Trump: the dent’s own National Security Advisor char- sought a declaratory judgment as to the va- first for abuse of power, and the second for acterized the efforts to pressure Ukraine to lidity of the subpoena he had received, House obstruction of Congress.1 The evidence over- announce investigations in exchange for offi- Democrats quickly withdrew the subpoena to whelmingly establishes that he is guilty of cial acts as a ‘‘drug deal.’’ 12 His Acting Chief prevent the court from issuing a ruling. both. The only remaining question is wheth- of Staff candidly confessed that President Trump’s decision to withhold security assist- The House may not usurp Executive er the members of the Senate will accept and carry out the responsibility placed on them ance was tied to his desire for an investiga- Branch authority and may not bypass our by the Framers of our Constitution and their tion into alleged Ukrainian interference in Constitution’s system of checks and bal- constitutional Oaths. the 2020 election, stated that there ‘‘is going ances. Asserting valid constitutional privi- ABUSE OF POWER to be political influence in foreign policy,’’ leges and immunities cannot be an impeach- President Trump abused the power of his and told the American people to ‘‘get over able offense. The second Article is therefore 13 Another one of President Trump’s key office by pressuring the government of it.’’ national security advisors testified that the invalid and must be rejected. Ukraine to interfere in the 2020 U.S. Presi- agents pursuing the President’s bidding were dential election for his own benefit. In order III. CONCLUSION ‘‘involved in a domestic political errand,’’ to pressure the recently elected Ukrainian not national security policy.14 And, imme- The Articles of Impeachment violate the President, Volodymyr Zelensky, to announce diately after speaking to President Trump Constitution. They are defective in their en- investigations that would advance President by phone about the investigations, one of Trump’s political interests and his 2020 re- tirety. They are the product of invalid pro- President Trump’s ambassadors involved in election bid, the President exercised his offi- ceedings that flagrantly denied the President carrying out the President’s agenda in cial power to withhold from Ukraine critical any due process rights. They rest on dan- Ukraine said that President Trump ‘‘did not U.S. government support—$391 million of gerous distortions of the Constitution that give a [expletive] about Ukraine,’’ and in- vital military aid and a coveted White House would do lasting damage to our structure of stead cared only about ‘‘big stuff’’ that bene- meeting.2 government. During a July 25, 2019 phone call, after fitted him personally, like ‘‘the Biden inves- 15 In the the first Article, the House attempts President Zelensky expressed gratitude to tigation.’’ To execute his scheme, President Trump President Trump for American military as- to seize the President’s power under Article assigned his personal attorney, Rudy II of the Constitution to determine foreign sistance, President Trump immediately re- Giuliani, the task of securing the Ukrainian sponded by asking President Zelensky to ‘‘do policy. In the second Article, the House at- investigations.16 Mr. Giuliani repeatedly and 3 tempts to control and penalize the assertion us a favor though.’’ The ‘‘favor’’ he sought publicly emphasized that he was not engaged of the Executive Branch’s constitutional was for Ukraine to publicly announce two in- in foreign policy but was instead seeking a vestigations that President Trump believed privileges, while simultaneously seeking to personal benefit for his client, Donald would improve his domestic political pros- destroy the Framers’ system of checks and Trump.17 pects.4 One investigation concerned former President Trump used the vast powers of balances. By approving the Articles, the Vice President Joseph Biden, Jr.—a political House violated our constitutional order, ille- his office as President to pressure Ukraine rival in the upcoming 2020 election—and the into announcing these investigations. Presi- gally abused its power of impeachment, and false claim that, in seeking the removal of a dent Trump illegally withheld $391 million in attempted to obstruct President Trump’s corrupt Ukrainian prosecutor four years ear- taxpayer-funded military assistance to ability to faithfully execute the duties of his lier, then-Vice President Biden had acted to Ukraine that Congress had appropriated for Office. They sought to undermine his author- protect a company where his son was a board expenditure in fiscal year 2019.18 That assist- ity under Article II of the Constitution, member.5 The second investigation con- ance was a critical part of long-running bi- which vests the entirety of ‘‘[t]he executive cerned a debunked conspiracy theory that partisan efforts to advance the security in- Power’’ in ‘‘a President of the United States Russia did not interfere in the 2016 Presi- terests of the United States by ensuring that of America.’’ dential election to aid President Trump, but Ukraine is properly equipped to defend itself instead that Ukraine interfered in that elec- against Russian aggression.19 Every relevant In order to preserve our constitutional tion to aid President Trump’s opponent, Hil- Executive Branch agency agreed that contin- structure of government, to reject the poi- lary Clinton.6 ued American support for Ukraine was in sonous partisanship that the Framers These theories were baseless. There is no America’s national security interests, but warned against, to ensure one-party political credible evidence to support the allegation President Trump ignored that view and per- impeachment vendettas do not become the that the former Vice President acted improp- sonally ordered the assistance held back, ‘‘new normal,’’ and to vindicate the will of erly in encouraging Ukraine to remove an in- even after serious concerns—now confirmed the American people, the Senate must reject competent and corrupt prosecutor in 2016.7 by the Government Accountability Office both Articles of Impeachment. In the end, And the U.S. Intelligence Community, the (GAO) 20—were raised within his Administra- this entire process is nothing more than a Senate Select Committee on Intelligence, tion about the legality of withholding fund- and Special Counsel Robert S. Mueller, III dangerous attack on the American people ing that Congress had already appro- unanimously determined that Russia, not 21 themselves and their fundamental right to priated. President Trump released the fund- Ukraine, interfered in the 2016 U.S. Presi- ing only after he got caught trying to use vote. dential election ‘‘in sweeping and systematic the security assistance as leverage to obtain JAY ALAN SEKULOW, fashion’’ to help President Trump’s cam- foreign interference in his reelection cam- Counsel to President Donald J. Trump, paign.8 In fact, the theory that Ukraine, paign. When news of his scheme to withhold Washington, DC. rather than Russia, interfered in the 2016 the funding broke, and shortly after inves- PAT A. CIPOLLONE, election has been advanced by Russia’s intel- tigative committees in the House opened an Counsel to the President, The White House. ligence services as part of Russia’s propa- investigation, President Trump relented and Dated this 18th day of January, 2020. ganda campaign.9 released the aid.22

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00005 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.003 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S292 CONGRESSIONAL RECORD — SENATE January 21, 2020 As part of the same pressure campaign, tant given the Department of Justice’s posi- to understand why the Framers of our Con- President Trump withheld a crucial White tion that the President cannot be indicted. If stitution included the impeachment power as House meeting with President Zelensky—a the President could both avoid account- an essential part of the republic they cre- meeting that he had previously promised and ability under the criminal laws and preclude ated. that was a shared goal of both the United an effective impeachment investigation, he The Constitution entrusts Congress with States and Ukraine.23 Such face-to-face Oval would truly be above the law. the exclusive power to impeach the Presi- Office meetings with a U.S. President are im- But that is what President Trump has at- dent and to convict and remove him from of- tempted to do, and why President Trump’s mensely important for international credi- fice. Article I vests the House with the ‘‘sole 24 conduct is the Framers’ worst nightmare. He bility. In this case, an Oval Office meeting Power of Impeachment,’’ 38 and the Senate directed his Administration to defy every with President Trump was critical to the with the ‘‘sole Power to try all Impeach- subpoena issued in the House’s impeachment newly elected Ukrainian President because ments’’ and to ‘‘convict[]’’ upon a vote of investigation.31 At his direction, the White it would signal to Russia—which had invaded 39 House, Department of State, Department of two thirds of its Members. The Constitu- Ukraine in 2014 and still occupied Ukrainian tion specifies that the President ‘‘shall be re- territory—that Ukraine could count on Defense, Department of Energy, and Office of Management and Budget (OMB) refused to moved from Office on Impeachment for, and American support.25 That meeting still has produce a single document in response to Conviction of, Treason, Bribery, or other not occurred, even though President Trump 40 those subpoenas.32 Several witnesses also fol- high Crimes and Misdemeanors.’’ The Con- has met with over a dozen world leaders at lowed President Trump’s orders, defying re- stitution further provides that the Senate the White House since President Zelensky’s quests for voluntary appearances and lawful may vote to permanently ‘‘disqualif[y]’’ an election—including an Oval Office meeting 33 impeached President from government serv- 26 subpoenas, and refusing to testify. And with Russia’s top diplomat. President Trump’s interference in the ice.41 President Trump’s solicitation of foreign House’s impeachment inquiry was not an iso- The President takes an oath to ‘‘faithfully interference in our elections to secure his lated incident—it was consistent with his execute the Office of the President of the own political success is precisely why the past efforts to obstruct the Special Counsel’s United States.’’ 42 Impeachment imposes a Framers of our Constitution provided Con- investigation into Russian interference in check on a President who violates that oath gress with the power to impeach a corrupt the 2016 election.34 by using the powers of the office to advance President and remove him from office. One By categorically obstructing the House’s his own interests at the expense of the na- of the Founding generation’s principal fears impeachment inquiry, President Trump tional interest. Fresh from their experience was that foreign governments would seek to claimed the House’s sole impeachment power under British rule by a king, the Framers manipulate American elections—the defining for himself and sought to shield his mis- were concerned that corruption posed a feature of our self-government. Thomas Jef- conduct from Congress and the American grave threat to their new republic. As ferson and John Adams warned of ‘‘foreign people. Although his sweeping cover-up ef- George Mason warned the other delegates to Interference, Intrigue, Influence’’ and pre- fort ultimately failed—seventeen public offi- the Constitutional Convention, ‘‘if we do not dicted that, ‘‘as often as Elections happen, cials courageously upheld their duty, testi- provide against corruption, our government the danger of foreign Influence recurs.’’ 27 fied, and provided documentary evidence of will soon be at an end.’’ 43 The Framers The Framers therefore would have consid- the President’s wrongdoing 35—his obstruc- stressed that a President who ‘‘act[s] from ered a President’s attempt to corrupt Amer- tion will do long-lasting and potentially ir- some corrupt motive or other’’ or ‘‘willfully ica’s democratic processes by demanding po- reparable damage to our constitutional sys- abus[es] his trust’’ must be impeached,44 be- litical favors from foreign powers to be a sin- tem of divided powers if it goes unchecked. cause the President ‘‘will have great oppor- gularly pernicious act. They designed im- Based on the overwhelming evidence of the tunitys of abusing his power.’’ 45 peachment as the remedy for such mis- President’s misconduct in attempting to conduct because a President who manipu- thwart the impeachment inquiry, the House The Framers recognized that a President lates U.S. elections to his advantage can approved the Second Article of Impeach- who abuses his power to manipulate the avoid being held accountable by the voters ment, for obstruction of Congress.36 The Sen- democratic process cannot properly be held through those same elections. And they ate should now convict President Trump on accountable by means of the very elections would have viewed a President’s efforts to that Article. If it does not, future Presidents that he has rigged to his advantage.46 The encourage foreign election interference as all will feel empowered to resist any investiga- Framers specifically feared a President who the more dangerous where, as here, those ef- tion into their own wrongdoing, effectively abused his office by sparing ‘‘no efforts or forts are part of an ongoing pattern of mis- nullifying Congress’s power to exercise the means whatever to get himself re-elected.’’ 47 conduct for which the President is unrepent- Constitution’s most important safeguard Mason asked: ‘‘Shall the man who has prac- ant. against Presidential misconduct. That out- tised corruption & by that means procured The House of Representatives gathered come would not only embolden this Presi- his appointment in the first instance, be suf- overwhelming evidence of President Trump’s dent to continue seeking foreign interference fered to escape punishment, by repeating his misconduct, which is summarized in the at- in our elections but would telegraph to fu- guilt?’’ 48 ture Presidents that they are free to engage tached Statement of Material Facts and in Thus, the Framers resolved to hold the in serious misconduct without account- the comprehensive reports prepared by the President ‘‘impeachable whilst in office’’ as ability or repercussions. House Permanent Select Committee on In- The Constitution entrusts Congress with ‘‘an essential security for the good behaviour 49 telligence and the Committee on the Judici- the solemn task of impeaching and removing of the Executive.’’ By empowering Con- 28 ary. On the strength of that evidence, the from office a President who engages in gress to immediately remove a President House approved the First Article of Impeach- ‘‘Treason, Bribery, or other high Crimes and when his misconduct warrants it, the Fram- ment against President Trump for abuse of Misdemeanors.’’ 37 The impeachment power ers established the people’s elected rep- power.29 The Senate should now convict him is an essential check on the authority of the resentatives as the ultimate check on a on that Article. President Trump’s con- President, and Congress must exercise this President whose corruption threatened our tinuing presence in office undermines the in- power when the President places his personal democracy and the Nation’s core interests.50 tegrity of our democratic processes and en- and political interests above those of the Na- The Framers particularly feared that for- dangers our national security. tion. President Trump has done exactly that. eign influence could undermine our new sys- OBSTRUCTION OF CONGRESS His misconduct challenges the fundamental tem of self-government.51 In his farewell ad- President Trump obstructed Congress by principle that Americans should decide dress to the Nation, President George Wash- undertaking an unprecedented campaign to American elections, and that a divided sys- ington warned Americans ‘‘to be constantly prevent House Committees from inves- tem of government, in which no single awake, since history and experience prove tigating his misconduct. The Constitution branch operates without the check and bal- that foreign influence is one of the most entrusts the House with the ‘‘sole Power of ance of the others, preserves the liberty we baneful foes of republican government.’’ 52 Impeachment.’’ 30 The Framers thus ensured all hold dear. Alexander Hamilton cautioned that the what common sense requires—that the The country is watching to see how the ‘‘most deadly adversaries of republican gov- House, and not the President, determines the Senate responds. History will judge each ernment’’ may come ‘‘chiefly from the desire existence, scope, and procedures of an im- Senator’s willingness to rise above partisan in foreign powers to gain an improper as- peachment investigation into the President’s differences, view the facts honestly, and de- cendant in our councils.’’ 53 James Madison conduct. The House cannot conduct such an fend the Constitution. The outcome of these worried that a future President could ‘‘be- investigation effectively if it cannot obtain proceedings will determine whether genera- tray his trust to foreign powers,’’ which information from the President or the Exec- tions to come will enjoy a safe and secure de- ‘‘might be fatal to the Republic.’’ 54 And, of utive Branch about the Presidential mis- mocracy in which the President is not a particular relevance now, in their personal conduct it is investigating. Under our con- king, and in which no one, particularly the correspondence about ‘‘foreign Inter- stitutional system of divided powers, a Presi- President, is above the law. ference,’’ Thomas Jefferson and John Adams dent cannot be permitted to hide his offenses BACKGROUND discussed their apprehension that ‘‘as often from view by refusing to comply with a Con- I. Constitutional Grounds for Presidential Im- as Elections happen, the danger of foreign gressional impeachment inquiry and order- peachment Influence recurs.’’ 55 ing Executive Branch agencies to do the To understand why President Trump must Guided by these concerns, the Framers in- same. That conclusion is particularly impor- be removed from office now, it is necessary cluded within the Constitution various

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mechanisms to ensure the President’s ac- complied with their legal obligations and ARGUMENT countability and protect against foreign in- testified before the three investigating Com- I. The Senate Should Convict President Trump fluence—including a requirement that Presi- mittees in depositions or transcribed inter- of Abuse of Power dents be natural-born citizens of the United views that all Members of the Committees— President Trump abused the power of the States,56 prohibitions on the President’s re- as well as staff from the Majority and Minor- Presidency by pressuring a foreign govern- ceipt of gifts, emoluments, or titles from for- ity—were permitted to attend.72 Some wit- ment to interfere in an American election on eign states,57 prohibitions on profiting from nesses produced documentary evidence in his behalf.88 He solicited this foreign inter- the Presidency,58 and, of course, the require- their possession. In late November 2019, ference to advance his reelection prospects ment that the President face reelection after twelve of these witnesses, including three re- at the expense of America’s national secu- a four-year Term.59 But the Framers pro- quested by the Minority, testified in public rity and the security of Ukraine, a vulner- vided for impeachment as a final check on a hearings convened by the Intelligence Com- able American ally at war with Russia, an President who sought foreign interference to mittee.73 American adversary.89 His effort to gain a serve his personal interests, particularly to Stressing the ‘‘overwhelming’’ evidence of personal political benefit by encouraging a secure his own reelection. misconduct already uncovered by the inves- foreign government to undermine America’s In drafting the Impeachment Clause, the tigation, on December 3, 2019, the Intel- democratic process strikes at the core of Framers adopted a standard flexible enough ligence Committee released a detailed nearly misconduct that the Framers designed im- to reach the full range of potential Presi- 300-page report documenting its findings, peachment to protect against. President dential misconduct: ‘‘Treason, Bribery, or which it transmitted to the Judiciary Com- Trump’s abuse of power requires his convic- other high Crimes and Misdemeanors.’’ 60 The mittee.74 The Judiciary Committee held pub- tion and removal from office. decision to denote ‘‘Treason’’ and ‘‘Bribery’’ lic hearings evaluating the constitutional An officer abuses his power if he exercises as impeachable conduct reflects the Found- standard for impeachment and the evidence his official power to obtain an improper per- ing-era concerns over foreign influence and against President Trump—in which the sonal benefit while ignoring or undermining corruption. But the Framers also recognized President’s counsel was invited, but de- the national interest.90 An abuse that in- that ‘‘many great and dangerous offenses’’ clined, to participate—and then reported two volves an effort to solicit foreign inter- could warrant impeachment and immediate Articles of Impeachment to the House.75 ference in an American election is uniquely removal of a President from office.61 These On December 18, 2019, the House voted to dangerous. President Trump’s misconduct is ‘‘other high Crimes and Misdemeanors’’ pro- impeach President Trump and adopted two an impeachable abuse of power.91 vided for by the Constitution need not be in- Articles of Impeachment.76 The First Article A. President Trump Exercised His Official dictable criminal offenses. Rather, as Ham- for Abuse of Power states that President Power to Pressure Ukraine into Aiding His ilton explained, impeachable offenses involve Trump ‘‘abused the powers of the Presi- Reelection an ‘‘abuse or violation of some public trust’’ dency’’ by ‘‘soliciting the Government of After President Zelensky won a landslide and are of ‘‘a nature which may with pecu- Ukraine to publicly announce investigations victory in Ukraine in April 2019, President liar propriety be denominated political, as that would benefit his reelection, harm the Trump pressured the new Ukrainian Presi- they relate chiefly to injuries done imme- election prospects of a political opponent, dent to help him win his own reelection by diately to the society itself.’’ 62 The Framers and influence the 2020 United States Presi- announcing investigations that were politi- thus understood that ‘‘high crimes and mis- 77 dential election to his advantage.’’ Presi- cally favorable for President Trump and de- demeanors’’ would encompass acts com- dent Trump sought to ‘‘pressure the Govern- signed to harm his political rival.92 mitted by public officials that inflict severe ment of Ukraine to take these steps by con- First, President Trump sought to pressure 63 harm on the constitutional order. ditioning official United States Government President Zelensky publicly to announce an II. The House’s Impeachment of President Don- acts of significant value to Ukraine on its investigation into former Vice President ald J. Trump and Presentation of This Mat- public announcement of the investiga- Biden and a Ukrainian gas company, ter to the Senate tions.’’ 78 President Trump undertook these Burisma Holdings, on whose board Biden’s Committees of the House have undertaken acts ‘‘for corrupt purposes in pursuit of person sat.93 As Vice President, Biden had in investigations into allegations of mis- sonal political benefit’’ 79 and ‘‘used the pow- late 2015 encouraged the government of conduct by President Trump and his Admin- ers of the Presidency in a manner that com- Ukraine to remove a Ukrainian prosecutor istration. On September 9, 2019, after evi- promised the national security of the United general who had failed to combat corrup- dence surfaced that the President and his as- States and undermined the integrity of the tion.94 The Ukrainian parliament removed sociates were seeking Ukraine’s assistance in United States democratic process.’’ 80 These the prosecutor in March 2016.95 President the President’s reelection, the House Perma- actions were ‘‘consistent’’ with President Trump and his allies have asserted that the nent Select Committee on Intelligence, to- Trump’s ‘‘previous invitations of foreign in- former Vice President acted in order to stop gether with the Committees on Oversight terference in United States elections,’’ 81 and an investigation of Burisma and thereby pro- and Reform and Foreign Affairs, announced demonstrated that President Trump ‘‘will re- tect his son.96 This is false. There is no evi- a joint investigation into the President’s main a threat to national security and the dence that Vice President Biden acted im- conduct and issued document requests to the Constitution if allowed to remain in of- properly.97 He was carrying out official White House and State Department.64 fice.’’ 82 United States policy—with the backing of On September 24, 2019, Speaker Nancy The Second Article for Obstruction of Con- the international community and bipartisan Pelosi announced that the House was ‘‘mov- gress states that President Trump ‘‘abused support in Congress—when he sought the re- ing forward with an official impeachment in- the powers of the Presidency in a manner of- moval of the prosecutor, who was himself quiry’’ and directed the Committees to ‘‘pro- fensive to, and subversive of, the Constitu- corrupt.98 In addition, the prosecutor’s re- ceed with their investigations under that tion’’ when he ‘‘directed the unprecedented, moval made it more likely that the investiga- umbrella of [an] impeachment inquiry.’’ 65 categorical, and indiscriminate defiance of tion into Burisma would be pursued.99 Presi- They subsequently issued multiple sub- subpoenas issued by the House of Represent- dent Trump nevertheless sought an official poenas for documents as well as requests and atives pursuant to its ‘sole Power of Im- Ukrainian announcement of an investigation subpoenas for witness interviews and testi- peachment.’ ’’ 83 Without ‘‘lawful cause or ex- into this theory.100 mony.66 On October 31, 2019, the House ap- cuse, President Trump directed Executive Second, President Trump sought to pres- proved a resolution adopting procedures to Branch agencies, offices, and officials not to sure President Zelensky publicly to an- govern the impeachment inquiry.67 comply with those subpoenas’’ and ‘‘thus nounce an investigation into a conspiracy Both before and after Speaker Pelosi’s an- interposed the powers of the Presidency theory that Ukraine had colluded with the nouncement, President Trump categorically against the lawful subpoenas of the House of Democratic National Committee to interfere refused to provide any information in re- Representatives, and assumed to himself in the 2016 U.S. Presidential election in order sponse to the House’s inquiry. He stated that functions and judgments necessary to the ex- to help the campaign of Hillary Clinton ‘‘we’re fighting all the subpoenas,’’ and that ercise of the ‘sole Power of Impeachment’ against then-candidate Donald Trump.101 ‘‘I have an Article II, where I have the right vested by the Constitution in the House of This theory was not only pure fiction, but to do whatever I want as president.’’ 68 Representatives.’’ 84 The President’s ‘‘com- malign Russian propaganda.102 In the words Through his White House Counsel, the Presi- plete defiance of an impeachment inquiry of one of President Trump’s own top Na- dent later directed his Administration not to . . . served to cover up the President’s own tional Security Council officials, President cooperate.69 Heeding the President’s direc- repeated misconduct and to seize and control Trump’s theory of Ukrainian election inter- tive, the Executive Branch did not produce the power of impeachment.’’ 85 President ference is ‘‘a fictional narrative that is being any documents in response to subpoenas Trump’s misconduct was ‘‘consistent’’ with perpetrated and propagated by the Russian issued by the three investigating Commit- his ‘‘previous efforts to undermine United security services themselves’’ to deflect from tees,70 and nine current or former Adminis- States Government investigations into for- Russia’s culpability and to drive a wedge be- tration officials, including the President’s eign interference in United States elec- tween the United States and Ukraine.103 top aides, continue to refuse to comply with tions,’’ 86 demonstrated that he has ‘‘acted in President Trump’s own FBI Director con- subpoenas for testimony.71 a manner grossly incompatible with self-gov- firmed that American law enforcement has Notwithstanding the President’s at- ernance,’’ and established that he ‘‘will re- ‘‘no information that indicates that Ukraine tempted cover-up, seventeen current and main a threat to the Constitution if allowed interfered with the 2016 presidential elec- former government officials courageously to remain in office.’’ 87 tion.’’ 104 The Senate Select Committee on

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00007 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.008 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S294 CONGRESSIONAL RECORD — SENATE January 21, 2020 Intelligence similarly concluded that Russia, And in describing the claim of foreign inter- former Vice President as a serious political not Ukraine, interfered in the 2016 U.S. Pres- ference in the 2016 election, President Trump rival in the 2020 U.S. Presidential election. idential election.105 President Trump never- declared that ‘‘they say a lot of it started Unsurprisingly, President Trump’s efforts to theless seized on the false theory and sought with Ukraine,’’ and that ‘‘[w]hatever you can advance the conspiracy theory accelerated an announcement of an investigation that do, it’s very important that you do it if after news broke that Vice President Biden would give him a basis to assert that that’s possible.’’ 119 Absent from the discus- would run for President in 2020.132 President Ukraine rather than Russia interfered in the sion was any mention by President Trump of Trump benefited from such an announce- 2016 election. Such an investigation would anti-corruption reforms in Ukraine. ment of a criminal investigation into his eliminate a perceived threat to his own le- One of President Trump’s chief agents for Presidential opponent in 2016.133 An an- gitimacy and boost his political standing in carrying out the President’s agenda in nouncement of a criminal investigation re- advance of the 2020 election.106 Ukraine, Ambassador Gordon Sondland, tes- garding a 2020 rival would likewise be ex- In furtherance of the corrupt scheme, tified that President Trump’s effort to condi- tremely helpful to his reelection prospects. President Trump exercised his official power tion release of the much-needed security as- President Trump would similarly have to remove a perceived obstacle to Ukraine’s sistance on an announcement of the inves- viewed an investigation into Ukrainian in- pursuit of the two sham investigations. On tigations was as clear as ‘‘two plus two terference in the 2016 election as helpful in April 24, 2019—one day after the media re- equals four.’’ 120 Sondland communicated to undermining the conclusion that he had ben- ported that former Vice President Biden President Zelensky’s advisor that Ukraine efitted from Russian election interference in would formally enter the 2020 U.S. Presi- would likely not receive assistance unless 2016, and that he was the preferred candidate dential race 107—the State Department exe- President Zelensky publicly announced the of President Putin—both of which President cuted President Trump’s order to recall the investigations.121 And President Trump later Trump viewed as calling into question the le- U.S. ambassador to Ukraine, a well-regarded confirmed to Ambassador Sondland that gitimacy of his Presidency. An announce- career diplomat and anti-corruption cru- President Zelensky ‘‘must announce the ment that Ukraine was investigating its own sader.108 President Trump needed her ‘‘out of opening of the investigations and he should alleged 2016 election interference would have the way’’ because ‘‘she was going to make want to do it.’’ 122 turned these facts on their head. President the investigations difficult for every- President Trump ultimately released the Trump would have grounds to claim—false- body.’’ 109 President Trump then proceeded to military assistance, but only after the press ly—that he was elected President in 2016 not exercise his official power to pressure publicly reported the hold, after the Presi- because he was the beneficiary of Russian Ukraine into announcing his desired inves- dent learned that a whistleblower within the election interference, but in spite of Ukrain- tigations by withholding valuable support Intelligence Community had filed a com- ian election interference aimed at helping that Ukraine desperately needed and that he plaint about his misconduct, and after the his opponent. could leverage only by virtue of his office: House publicly announced an investigation Second, agents and associates of President $391 million in security assistance and a of the President’s scheme. In short, Presi- Trump who helped carry out his agenda in White House meeting. dent Trump released the security assistance Ukraine confirmed that his efforts to pres- for Ukraine only after he got caught.123 sure President Zelensky into announcing the WITHHELD SECURITY ASSISTANCE desired investigations were intended for his WITHHELD WHITE HOUSE MEETING President Trump illegally ordered the Of- personal political benefit rather than for a fice of Management and Budget to withhold On April 21, 2019, the day President legitimate policy purpose. For example, $391 million in taxpayer-funded military and Zelensky was elected, President Trump in- after speaking with President Trump, Am- other security assistance to Ukraine.110 This vited him to a meeting at the White bassador Sondland told a colleague that 124 assistance would provide Ukraine with snip- House. The meeting would have signaled President Trump ‘‘did not give a [expletive] er rifles, rocket-propelled grenade launchers, American support for the new Ukrainian ad- about Ukraine,’’ and instead cared only counter-artillery radars, electronic warfare ministration, its strong anti-corruption re- about ‘‘big stuff’’ that benefitted him person- detection and secure communications, and form agenda, and its efforts to defend ally ‘‘like the Biden investigation that Mr. night vision equipment, among other mili- against Russian aggression and to make Giuliani was pushing.’’ 134 And Mick tary equipment, to defend itself against Rus- peace.125 President Trump, however, exer- Mulvaney, President Trump’s Acting Chief of sian forces that occupied part of eastern cised his official power to withhold the meet- Staff, acknowledged to a reporter that there Ukraine since 2014.111 The new and vulner- ing as leverage in his scheme to pressure was a quid pro quo with Ukraine involving able government headed by President President Zelensky into announcing the in- the military aid, conceded that ‘‘[t]here is Zelensky urgently needed this assistance— vestigations to help his reelection campaign. going to be political influence in foreign pol- both because the funding itself was critically The evidence is unambiguous that Presi- icy,’’ and stated, ‘‘I have news for everybody: important to defend against Russia, and be- dent Trump and his agents conditioned the get over it.’’ 135 cause the funding was a highly visible sign of White House meeting on Ukraine’s an- Third, the involvement of President American support for President Zelensky in nouncement of the investigations. Ambas- Trump’s personal attorney, Mr. Giuliani— his efforts to negotiate an end to the conflict sador Sondland testified that President who has professional obligations to the from a position of strength.112 Trump wanted ‘‘a public statement from President but not the Nation—underscores Every relevant Executive Branch agency President Zelensky’’ committing to the in- that President Trump sought the investiga- supported the assistance, which also had vestigations as a ‘‘prerequisite[]’’ for the tions for personal and political reasons rath- broad bipartisan support in Congress.113 White House meeting.126 Ambassador er than legitimate foreign policy reasons. President Trump, however, personally or- Sondland further testified: ‘‘I know that Mr. Giuliani openly and repeatedly acknowl- dered OMB to withhold the assistance after members of this committee frequently frame edged that he was pursuing the Ukrainian in- the bulk of it had been appropriated by Con- these complicated issues in the form of a vestigations to advance the President’s in- gress and all of the Congressionally man- simple question: Was there a quid pro quo? terests, stating: ‘‘this isn’t foreign pol- dated conditions on assistance—including As I testified previously with regard to the icy.’’ 136 Instead, Mr. Giuliani said that he anti-corruption reforms—had been met.114 requested White House call and the White was seeking information that ‘‘will be very, 127 The Government Accountability Office has House meeting, the answer is yes.’’ very helpful to my client.’’ 137 Mr. Giuliani determined that the President’s hold was il- To this day, President Trump maintains made similar representations to the Ukrain- legal and violated the Impoundment Control leverage over President Zelensky. A White ian government. In a letter to President- 128 Act, which limits the President’s authority House meeting has still not taken place, elect Zelensky, Mr. Giuliani stated that he to withhold funds that Congress has appro- and President Trump continues publicly to ‘‘represent[ed] him [President Trump] as a priated.115 urge Ukraine to conduct these investiga- private citizen, not as President of the United 129 The evidence is clear that President Trump tions. States’’ and was acting with the President’s conditioned release of the vital military as- B. President Trump Exercised Official Power ‘‘knowledge and consent.’’ 138 President sistance on Ukraine’s announcement of the to Benefit Himself Personally Trump placed Mr. Giuliani at the hub of the sham investigations. During a telephone con- Overwhelming evidence demonstrates that pressure campaign on Ukraine, and directed versation between the two Presidents on the announcement of investigations on U.S. officials responsible for Ukraine to July 25, immediately after President which President Trump conditioned the offi- ‘‘talk to Rudy.’’ 139 Indeed, during their July Zelensky raised the issue of U.S. military cial acts had no legitimate policy rationale, 25 call, President Trump pressed President support for Ukraine, President Trump re- and instead were corruptly intended to assist Zelensky to speak with Mr. Giuliani di- plied: ‘‘I would like you to do us a favor his 2020 reelection campaign.130 rectly, stating: ‘‘Rudy very much knows though.’’ 116 President Trump then explained First, although there was no basis for the what’s happening and he is a very capable that the ‘‘favor’’ he wanted President two conspiracy theories that President guy. If you could speak to him that would be Zelensky to perform was to begin the inves- Trump advanced,131 public announcements great.’’ 140 tigations, and President Zelensky confirmed that these theories were being investigated Fourth, President Trump’s pursuit of the his understanding that the investigations would be of immense political value to him— sham investigations marked a dramatic de- should be done ‘‘openly.’’ 117 In describing and him alone. The public announcement of viation from longstanding bipartisan Amer- whom he wanted Ukraine to investigate, an investigation of former Vice President ican foreign policy goals in Ukraine. Legiti- President Trump mentioned only two people: Biden would yield enormous political bene- mate investigations could have been recog- former Vice President Biden and his son.118 fits for President Trump, who viewed the nized as an anti-corruption foreign policy

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00008 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.010 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S295 goal, but there was no factual basis for an in- pean allies, as he claimed after the scheme ing conflict with Russia.172 The United vestigation into the Bidens or into supposed was uncovered.157 States has approved military assistance to Ukrainian interference in the 2016 elec- Before news of former Vice President Ukraine with bipartisan support since 2014, tion.141 To the contrary, the requested inves- Biden’s candidacy broke, President Trump and that assistance is critical to preventing tigations were precisely the type of political showed no interest in corruption in Ukraine, Russia’s expansion and aggression. This mili- investigations that American foreign policy and in prior years he approved military as- tary assistance—which President Trump dissuades other countries from undertaking. sistance to Ukraine without controversy.158 withheld in service of his own political inter- That explains why the scheme to obtain the After his candidacy was announced, Presi- ests—‘‘saves lives’’ by making Ukrainian re- announcements was pursued through the dent Trump remained indifferent to anti-cor- sistance to Russia more effective.173 It like- President’s chosen political appointees and ruption measures beyond the two investiga- wise advances American national security his personal attorney; 142 why Trump Admin- tions he was demanding.159 When he first interests because, ‘‘[i]f Russia prevails and istration officials attempted to keep the spoke with President Zelensky on April 21, Ukraine falls to Russian dominion, we can scheme from becoming public due to its President Trump ignored the recommenda- expect to see other attempts by Russia to ex- ‘‘sensitive nature’’; 143 why no credible expla- tion of his national security advisors and did pand its territory and influence.’’ 174 Indeed, nation for the hold on security assistance not mention corruption at all—even though the reason the United States provides assist- was provided even within the U.S. govern- the purpose of the call was to congratulate ance to the Ukrainian military is ‘‘so that ment; 144 why, over Defense Department ob- President Zelensky on a victory based on an they can fight Russia over there, and we 160 jections, President Trump and his allies vio- anti-corruption platform. President don’t have to fight Russia here.’’ 175 Presi- lated the law by withholding the aid; 145 and Trump’s entire policy team agreed that dent Trump’s delay in providing the military why, after the scheme was uncovered, Presi- President Zelensky was genuinely com- assistance jeopardized these national secu- dent Trump falsely claimed that his pursuit mitted to reforms, yet President Trump re- rity interests and emboldened Russia even of the investigations did not involve a quid fused a White House meeting that the team though the funding was ultimately re- pro quo.146 advised would support President Zelensky’s leased—particularly because the delay oc- 161 Fifth, American and Ukrainian officials anti-corruption agenda. President Trump’s curred ‘‘when Russia was watching closely to alike saw President Trump’s scheme for own Department of Defense, in consultation gauge the level of American support for the what it was: improper and political. As we with the State Department, had certified in Ukrainian Government.’’ 176 But for a subse- expect the testimony of Ambassador John May 2019 that Ukraine satisfied all anti-cor- quent act of Congress, approximately $35 Bolton would confirm, President Trump’s ruption standards needed to receive the Con- million of military assistance to Ukraine National Security Advisor stated that he gressionally appropriated military aid, yet would have lapsed and been unavailable as a wanted no ‘‘part of whatever drug deal’’ President Trump nevertheless withheld that result of the President’s abuse of power.177 President Trump’s agents were pursuing in vital assistance.162 He recalled without ex- Ukraine.147 Dr. Hill testified that Ambas- planation Ambassador Yovanovitch, who was The White House meeting that President sador Sondland was becoming involved in a widely recognized as a champion in fighting Trump promised President Zelensky—but ‘‘domestic political errand’’ in pressing corruption,163 disparaged her while praising a continues to withhold—would similarly have Ukraine to announce the investigations.148 corrupt Ukrainian prosecutor general,164 and signaled to Russia that the United States Jennifer Williams, an advisor to Vice Presi- oversaw efforts to cut foreign programs stands behind Ukraine, showing ‘‘U.S. sup- dent Mike Pence, testified that the Presi- tasked with combating corruption in port at the highest levels.’’ 178 By refusing to dent’s solicitation of investigations was a Ukraine and elsewhere.165 hold this meeting, President Trump denied ‘‘domestic political matter.’’ 149 Lt. Col. Moreover, had President Trump truly Ukraine a showing of strength that could Alexander Vindman, the NSC’s Director for sought to assist Ukraine’s anti-corruption deter further Russian aggression and help Ukraine, testified that ‘‘[i]t is improper for efforts, he would have focused on ensuring Ukraine negotiate a favorable end to its war the President of the United States to de- that Ukraine actually conducted investiga- with Russia.179 The withheld meeting also mand a foreign government investigate a tions of the purported issues he identified. undercuts President Zelensky’s domestic U.S. citizen and a political opponent.’’ 150 But actual investigations were never the standing, diminishing his ability to advance William Taylor, who took over as Charge´ point. President Trump was interested only his ambitious anti-corruption reforms.180 d’Affaires in Kyiv after President Trump rein the announcement of the investigations be- Equally troubling is that President called Ambassador Yovanovitch, emphasized cause that announcement would accomplish Trump’s scheme sent a clear message to our that ‘‘I think it’s crazy to withhold security his real goal—bolstering his reelection ef- allies that the United States may capri- assistance for help with a political cam- forts.166 ciously withhold critical assistance for our paign.’’ 151 And George Kent, a State Depart- President Trump’s purported concern President’s personal benefit, causing our al- ment official, testified that ‘‘asking another about sharing the burden of assistance to lies to constantly ‘‘question the extent to country to investigate a prosecution for po- Ukraine with Europe is equally without which they can count on us.’’ 181 Because litical reasons undermines our advocacy of basis. From the time OMB announced the il- American leadership depends on ‘‘the power the rule of law.’’ 152 legal hold until it was lifted, no credible rea- of our example and the consistency of our Ukrainian officials also understood that son was provided to Executive Branch agen- purpose,’’ President Trump’s ‘‘conduct un- President Trump’s corrupt effort to solicit cies for the hold, despite repeated efforts by dermines the U.S., exposes our friends, and the sham investigations would drag them national security officials to obtain an ex- widens the playing field for autocrats like into domestic U.S. politics. In response to planation.167 It was not until September— President Putin.’’ 182 And President Trump’s the President’s efforts, a senior Ukrainian approximately two months after President use of official acts to pressure Ukraine to an- official conveyed to Ambassador Taylor that Trump had directed the hold and after the nounce politically motivated investigations President Zelensky ‘‘did not want to be used President had learned of the whistleblower harms our credibility in promoting demo- as a pawn in a U.S. reelection campaign.’’ 153 complaint—that the hold, for the first time, cratic values and the rule of law in Ukraine Another Ukrainian official later stated that was attributed to the President’s concern and around the world. American credibility ‘‘it’s critically important for the west not to about other countries not contributing more abroad ‘‘is based on a respect for the United pull us into some conflicts between their rul- to Ukraine.168 If the President was genuinely States,’’ and ‘‘if we damage that respect,’’ ing elites[.]’’ 154 And when Ambassador Kurt concerned about burden-sharing, it makes no American foreign policy cannot do its job.183 Volker tried to warn President Zelensky’s sense that he kept his own Administration in President Trump abused the powers of his advisor against investigating President the dark about the issue for months, never office to invite foreign interference in an Zelensky’s former political opponent—the made any contemporaneous public state- election for his own personal political gain prior Ukrainian president—the advisor re- ments about it, never ordered a review of and to the detriment of American national 169 torted, ‘‘What, you mean like asking us to burden-sharing, never ordered his officials security interests. He abandoned his oath to investigate Clinton and Biden?’’ 155 David to push Europe to increase their contribu- faithfully execute the laws and betrayed his 170 Holmes, a career diplomat at the U.S. Em- tions, and then released the aid without public trust. President Trump’s misconduct 171 bassy in Kyiv, highlighted this hypocrisy: any change in Europe’s contribution. The presents a danger to our democratic proc- ‘‘While we had advised our Ukrainian coun- concern about burden-sharing is an after- esses, our national security, and our com- terparts to voice a commitment to following the-fact rationalization designed to conceal mitment to the rule of law. He must be re- the rule of law and generally investigating President Trump’s abuse of power. moved from office. credible corruption allegations,’’ U.S. offi- C. President Trump Jeopardized U.S. II. The Senate Should Convict President Trump cials were making ‘‘a demand that President National Interests of Obstruction of Congress Zelensky personally commit on a cable news President Trump’s efforts to solicit foreign channel to a specific investigation of Presi- interference to help his reelection campaign In exercising its responsibility to inves- dent Trump’s political rival.’’ 156 is pernicious, but his conduct is all the more tigate and consider the impeachment of a Finally, there is no credible alternative ex- alarming because it endangered U.S. na- President of the United States, the House is planation for President Trump’s conduct. It tional security, jeopardized our alliances, constitutionally entitled to the relevant in- is not credible that President Trump sought and undermined our efforts to promote the formation from the Executive Branch con- announcements of the investigations because rule of law globally. cerning the President’s misconduct.184 The he was in fact concerned with corruption in Ukraine is a ‘‘strategic partner of the Framers, the courts, and past Presidents Ukraine or burden-sharing with our Euro- United States’’ on the front lines of an ongo- have recognized that honoring Congress’s

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00009 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.011 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S296 CONGRESSIONAL RECORD — SENATE January 21, 2020 right to information in an impeachment in- tion in a House impeachment investigation. rects Mr. Mulvaney not to appear at the vestigation is a critical safeguard in our sys- Even President Nixon produced numerous Committee’s scheduled deposition on Novem- tem of divided powers.185 Otherwise, a Presi- documents in response to Congressional sub- ber 8, 2019.’’ 207 When President Trump was dent could hide his own wrongdoing to pre- poenas and instructed ‘‘[a]ll members of the unable to silence witnesses, he resorted to vent Congress from discovering impeachable White House Staff . . . [to] appear volun- tactics to penalize and intimidate them. misconduct, effectively nullifying Congress’s tarily when requested by the [House],’’ to These efforts include President Trump’s sus- impeachment power.186 President Trump’s ‘‘testify under oath,’’ and to ‘‘answer fully tained attacks on the anonymous whistle- sweeping effort to shield his misconduct all proper questions’’ 197—consistent with the blower, and his public statements designed from view and protect himself from impeach- near uniform cooperation of prior Executive to discourage witnesses from coming forward ment thus works a grave constitutional Branch officials who had been subject to im- and to embarrass those who did testify.208 harm and is itself an impeachable offense. peachment investigations.198 Refusing to comply with a Congressional A. The House Is Constitutionally Entitled to Because President Nixon’s production of impeachment investigation is not a constitu- the Relevant Information in an Impeach- records in response to the House Judiciary tionally valid decision for a President to ment Inquiry Committee’s inquiry was incomplete in im- make. President Trump’s unprecedented ‘‘complete defiance of an impeachment in- The House has the power to issue sub- portant respects, however, the Committee quiry . . . served to cover up the President’s poenas and demand compliance in an im- voted to adopt an article of impeachment for 199 own repeated misconduct and to seize and peachment investigation. The Supreme his obstruction of the inquiry. As the Com- control the power of impeachment.’’ 209 Presi- Court has long recognized that, ‘‘[w]ithout mittee explained, in refusing to provide ma- dent Trump’s directive rejects one of the key the power to investigate—including of course terials that the Committee ‘‘deemed nec- features distinguishing our Republic from a the authority to compel testimony, either essary’’ to the impeachment investigation, monarchy: that ‘‘[t]he President of the through its own processes or through judi- President Nixon had ‘‘substitute[ed] his United States [is] liable to be impeached, cial trial—Congress could be seriously handi- judgment’’ for that of the House and inter- tried, and, upon conviction . . . removed.’’ 210 capped in its efforts to exercise its constitu- posed ‘‘the powers of the presidency against Allowing President Trump to avoid convic- tional function wisely and effectively.’’ 187 the lawful subpoenas of the House of Rep- The Court has stressed that it is the ‘‘duty of resentatives, thereby assuming to himself tion on the Second Article would set a dan- all citizens’’ and ‘‘their unremitting obliga- functions and judgments necessary to exer- gerous precedent for future Presidents to tion to respond to subpoenas, to respect the cise the sole power of impeachment vested hide their misconduct from Congressional dignity of the Congress and its committees by the Constitution in the House.’’ 200 The scrutiny during an impeachment inquiry and to testify fully with respect to matters Committee stated that it was not ‘‘within without fear of accountability. Notwithstanding President Trump’s ob- within the province of proper investiga- the power of the President to conduct an instruction, the House obtained compelling tion.’’ 188 The Court has repeatedly empha- quiry into his own impeachment, to deter- evidence that he abused his power. The fail- sized that Congress’s ‘‘power of inquiry— mine which evidence, and what version or ure of President Trump’s obstruction and at- with process to enforce it—is an essential portion of that evidence, is relevant and nec- tempted cover-up, however, does not excuse and appropriate auxiliary to the legislative essary to such an inquiry. These are matters his misconduct. There can be no doubt that function.’’ 189 Congress ‘‘cannot legislate which, under the Constitution, the House has the withheld documents and testimony wisely or effectively in the absence of infor- 201 the sole power to determine.’’ In the face would provide Congress with highly perti- mation.’’ 190 of Congress’s investigation and the mounting This principle is most compelling when the nent information about the President’s cor- evidence of his misdeeds, President Nixon re- rupt scheme. Indeed, witnesses have testified House exercises its ‘‘sole Power of Impeach- signed before the House had the chance to ment.’’ Congress’s already ‘‘broad’’ inves- about specific withheld records concerning impeach him for this misconduct. President Trump’s July 25 call with Presi- tigatory authority,191 and its need for infor- B. President Trump’s Obstruction of the Im- 211 and mation, are at their apex in an impeachment dent Zelensky and related materials, peachment Inquiry Violates Fundamental public reports have referred to additional re- inquiry. The principle that the President Constitutional Principles sponsive documents, including ‘‘hundreds of cannot stand in the way of an impeachment documents that reveal extensive efforts to investigation is ‘‘of great consequence’’ be- The Senate should convict President generate an after-the-fact justification for’’ cause, as Supreme Court Justice Joseph Trump of Obstruction of Congress as charged withholding the security aid.212 Story long ago explained, ‘‘the president in the Second Article of Impeachment. Presi- should not have the power of preventing a dent Trump unilaterally declared the C. President Trump’s Excuses for His thorough investigation of [his] conduct, or of House’s investigation ‘‘illegitimate.’’ 202 Obstruction Are Meritless securing [himself] against the disgrace of a President Trump’s White House Counsel no- President Trump has offered various public conviction by impeachment, if [he] tified the House that ‘‘President Trump can- unpersuasive excuses for his blanket refusal should deserve it.’’ 192 A Presidential im- not permit his Administration to participate to comply with the House’s impeachment in- peachment is ‘‘a matter of the most critical in this partisan inquiry under these cir- quiry. President Trump’s refusal to provide moment to the Nation’’ and it is ‘‘difficult to cumstances.’’ 203 President Trump then di- information is not a principled assertion of conceive of a more compelling need than rected his Administration categorically to executive privilege, but rather is a trans- that of this country for an unswervingly fair withhold documents and testimony from the parent attempt to cover-up wrongdoing and inquiry based on all the pertinent informa- House. amass power that the Constitution does not tion.’’ 193 The Supreme Court thus recognized The facts are undisputed. As charged in the give him, including the power to decide nearly 140 years ago that where the House or Second Article of Impeachment, President whether and when Congress can hold him ac- Senate is determining a ‘‘question of . . . im- Trump ‘‘[d]irect[ed] the White House to defy countable. peachment,’’ there is ‘‘no reason to doubt a lawful subpoena by withholding the pro- First, while Congressional investigators the right to compel the attendance of wit- duction of documents’’ to the Committees; often accommodate legitimate Executive nesses, and their answer to proper questions, ‘‘[d]irect[ed] other Executive Branch agen- Branch interests, the President’s blanket di- in the same manner and by the use of the cies and offices to defy lawful subpoenas and rective to all Executive Branch agencies and same means that courts of justice can in like withhold the production of documents and witnesses to defy Congressional subpoenas cases.’’ 194 records from the Committees’’; and was not based on any actual assertion of ex- Like the Supreme Court, members of the ‘‘[d]irected current and former Executive ecutive privilege or identification of par- earliest Congresses understood that, without Branch officials not to cooperate with the ticular sensitive information.213 The White ‘‘the right to inspect every paper and trans- Committees.’’ 204 In response to President House Counsel’s letter alluded to ‘‘long-es- action in any department . . . the power of Trump’s directives, OMB, the Department of tablished Executive Branch confidentiality impeachment could never be exercised with State, Department of Energy, and Depart- interests and privileges’’ that the State De- any effect.’’ 195 Previous Presidents have ac- ment of Defense refused to produce any docu- partment could theoretically invoke,214 and knowledged their obligation to comply with ments to the House, even though witness tes- the Justice Department’s Office of Legal an impeachment investigation, explaining timony has revealed that additional highly Counsel preemptively dismissed certain sub- that such an inquiry ‘‘penetrate[s] into the relevant records exist.205 To date, the House poenas as ‘‘invalid’’ on the ground that re- most secret recesses of the Executive De- Committees have not received a single docu- sponsive information was ‘‘potentially pro- partments’’ and ‘‘could command the attend- ment or record from these departments and tected by executive privilege.’’ 215 But nei- ance of any and every agent of the Govern- agencies pursuant to subpoenas, which re- ther document conveyed an actual assertion ment, and compel them to produce all pa- main in effect. of executive privilege,216 which would re- pers, public or private, official or unofficial, President Trump personally demanded quire, at a minimum, identification by the and to testify on oath to all facts within that his top aides refuse to testify in re- President of particular communications or their knowledge.’’ 196 That acknowledgement sponse to subpoenas, and nine Administra- documents containing protected material.217 is a matter of common sense. An impeach- tion officials followed his directive and con- The White House cannot justify a blanket re- ment inquiry cannot root out bad actors if tinue to defy subpoenas for testimony.206 For fusal to respond to Congressional subpoenas those same bad actors control the scope and example, when the Intelligence Committee based on an executive or other privilege it nature of the inquiry. issued a subpoena for Mick Mulvaney’s testi- never in fact invoked. President Trump is an aberration among mony, he produced a November 8 letter from Regardless, executive privilege is inappli- Presidents in refusing any and all coopera- the White House stating: ‘‘the President di- cable here, both because it may not be used

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00010 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.012 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S297 to conceal wrongdoing—particularly in an the Legislative Branch—in his view, neither him from continuing to facilitate foreign in- impeachment inquiry—and because the can engage in any review of his conduct. terference in U.S. elections. In June 2019, President and his agents have already dimin- This position conveys the President’s dan- President Trump declared that he sees ished any confidentiality interests by speak- gerously misguided belief that no other ‘‘nothing wrong with listening’’ to a foreign ing at length about these events in every branch of government may check his power power that offers information detrimental to forum except Congress.218 President Trump or hold him accountable for abusing it.229 a political adversary. In the President’s has been impeached for Obstruction of Con- That belief is fundamentally incompatible words: ‘‘I think I’d take it.’’ 236 Asked wheth- gress not based upon discrete invocations of with our form of government. er such information should be reported to privilege or immunity, but for his directive Months or years of litigation over each of law enforcement, President Trump retorted: that the Executive Branch categorically the House’s subpoenas is in any event no an- ‘‘Give me a break, life doesn’t work that stonewall the House impeachment inquiry by swer in this time-sensitive inquiry. The way.’’ 237 refusing to comply with all subpoenas.219 House’s subpoena to former White House Only one day after Special Counsel Mueller To the extent President Trump claims that Counsel Don McGahn was issued in April testified to Congress that the Trump Cam- he has concealed evidence to protect the Of- 2019, but it is still winding its way through paign welcomed and sought to capitalize on fice of the President, the Framers considered the courts over President Trump’s strong op- Russia’s efforts to damage the President’s and rejected that defense. Several delegates position, even on an expedited schedule.230 political rival in 2016, President Trump at the Constitutional Convention warned Litigating President Trump’s direction that spoke to President Zelensky, pressuring that the impeachment power would be ‘‘de- each subpoena be denied would conflict with Ukraine to announce investigations to dam- structive of [the executive’s] independ- the House’s urgent duty to act on the com- age President Trump’s political opponent in ence.’’ 220 But the Framers adopted an im- pelling evidence of impeachable misconduct the 2020 election and undermine Special 238 peachment power anyway because, as Alex- that it has uncovered. Further delay could Counsel Mueller’s findings. President Trump still embraces that call as both ‘‘rou- ander Hamilton observed, ‘‘the powers relat- also compromise the integrity of the 2020 tine’’ and ‘‘perfect.’’ 239 President Trump’s ing to impeachments’’ are ‘‘an essential election. conduct would have horrified the Framers of check in the hands of [Congress] upon the en- When the Framers entrusted the House our republic. croachments of the executive.’’ 221 The im- with the sole power of impeachment, they obviously meant to equip the House with the In its findings, the Intelligence Committee peachment power does not exist to protect emphasized the ‘‘proximate threat of further the Presidency; it exists to protect the na- necessary tools to discover abuses of power by the President. Without that authority, presidential attempts to solicit foreign in- tion from a corrupt and dangerous President terference in our next election.’’ 240 That like Donald Trump. the Impeachment Clause would fail as an effective safeguard against tyranny. A system threat has not abated. In a sign that Presi- Second, President Trump has no basis for dent Trump’s corrupt efforts to encourage objecting to how the House conducted its im- in which the President cannot be charged with a crime, as the Department of Justice interference in the 2020 election persist, he peachment proceedings. The Constitution reiterated his desire for Ukraine to inves- vests the House with the ‘‘sole Power of Im- believes, and in which he can nullify the impeachment power through blanket obstruc- tigate his political opponents even after the peachment’’ 222 and the power to ‘‘determine scheme was discovered and the impeachment the Rules of its Proceedings.’’ 223 tion, as President Trump has done here, is a system in which the President is above the inquiry was announced. When asked in Octo- The rights that President Trump has de- ber 2019 what he hoped President Zelensky manded have never been recognized and have law. The Senate should convict President Trump for his categorical obstruction of the would do about ‘‘the Bidens,’’ President not been afforded in any prior Presidential Trump answered that it was ‘‘very simple’’ House’s impeachment inquiry and ensure impeachment.224 President Trump has been and he hoped Ukraine would ‘‘start a major that this President, and any future Presi- afforded protections equal to or greater than investigation.’’ 241 Unsolicited, he added that dent, cannot commit impeachable offenses those afforded Presidents Nixon and Clinton ‘‘China should [likewise] start an investiga- and then avoid accountability by covering during their impeachment proceedings in the tion into the Bidens.’’ 242 House.225 Any claim that President Trump them up. President Trump has also continued to en- was entitled to due process rights modeled III. The Senate Should Immediately Remove gage Mr. Giuliani to pursue the sham inves- on a criminal trial during the entirety of the President Trump From Office to Prevent tigations on his behalf.243 One day after House impeachment inquiry ignores both law Further Abuses President Trump was impeached, Mr. and history. A House impeachment inquiry President Trump has demonstrated his Giuliani claimed that he gathered deroga- cannot be compared to a criminal trial be- continued willingness to corrupt free and tory evidence against Vice President Biden cause the Senate, not the House, possesses fair elections, betray our national security, during a fact-finding trip to Ukraine—a trip the ‘‘sole Power to try Impeachments.’’ 226 and subvert the constitutional separation of where he met with a current Ukrainian offi- The Constitution does not entitle President powers—all for personal gain. President cial who attended a KGB school in Moscow Trump to a separate, full trial first in the Trump’s ongoing pattern of misconduct dem- and has led calls in Ukraine to investigate House. onstrates that he is an immediate threat to Burisma and the Bidens.244 During the trip, Even indulging the analogy to a criminal the Nation and the rule of law. It is impera- Mr. Giuliani tweeted: ‘‘The conversation trial, no person appearing before a pros- tive that the Senate convict and remove him about corruption in Ukraine was based on ecutor or grand jury deciding whether to from office now, and permanently bar him compelling evidence of criminal conduct by bring charges would have the rights Presi- from holding federal office. then VP Biden, in 2016, that has not been re- dent Trump has claimed. As the House Judi- A. President Trump’s Repeated Abuse of solved and until it is will be a major obstacle ciary Committee Chairman observed during Power Presents an Ongoing Threat to Our to the US assisting Ukraine with its anti- Watergate, ‘‘it is not a right but a privilege Elections corruption reforms.’’ 245 Not only was Mr. or a courtesy’’ for the President to partici- President Trump’s solicitation of Ukrain- Giuliani perpetuating the false allegations pate through counsel in House impeachment ian interference in the 2020 election is not an against the former Vice President, but he proceedings.227 President Trump’s demands isolated incident. It is part of his ongoing was reiterating the threat that President are just another effort to obstruct the House and deeply troubling course of misconduct Trump had used to pressure President in the exercise of its constitutional duty. that, as the First Article of Impeachment Zelensky to announce the investigations: Third, President Trump’s assertion that his states, is ‘‘consistent with President that U.S. assistance to Ukraine would be impeachment for obstruction of Congress is Trump’s previous invitations of foreign in- withheld until Ukraine pursued the sham investigations. Mr. Giuliani has stated that he invalid because the Committees did not first terference in United States elections.’’ 231 seek judicial enforcement of their subpoenas These previous efforts include inviting and the President continue to be ‘‘on the 246 ignores again the Constitutional dictate that Russian interference in the 2016 Presidential same page.’’ Ukraine, as well, understands the House has sole authority to determine election.232 As Special Counsel Mueller con- that Mr. Giuliani represents President 247 how to proceed with an impeachment. It also cluded, the ‘‘Russian government interfered Trump’s interests. ignores President Trump’s own arguments to in the 2016 presidential election in sweeping President Trump’s unrepentant embrace of foreign election interference illustrates the the federal courts. and systematic fashion.’’ 233 Throughout the President Trump is telling one story to 2016 election cycle, the Trump Campaign threat posed by his continued occupancy of Congress while spinning a different tale in maintained significant contacts with agents the Office of the President. It also refutes the courts. He is saying to Congress that the of the Russian government who were offering the assertion that the consequences of his Committees should have sued the Executive damaging information concerning then-can- misconduct should be decided by the voters Branch in court to enforce their subpoenas. didate Trump’s political opponent, and Mr. in the 2020 election. The aim of President But he has argued to that court that Con- Trump repeatedly praised—and even publicly Trump’s Ukraine scheme was to corrupt the gressional Committees cannot sue the Execu- requested—the release of politically charged integrity of the 2020 election by enlisting a foreign power to give him an unfair advan- tive Branch to enforce their subpoenas.228 Russian-hacked emails.234 The Trump Cam- President Trump cannot tell Congress that it paign welcomed Russia’s election inter- tage—in short, to cheat. That threat persists must pursue him in court, while simulta- ference because it ‘‘expected it would benefit today. neously telling the courts that they are pow- electorally from information stolen and re- B. President Trump’s Obstruction of Con- erless to enforce Congressional subpoenas. leased through Russian efforts.’’ 235 gress Threatens Our Constitutional Order President Trump’s approach to the Judi- President Trump’s recent actions confirm President Trump’s obstruction of the cial Branch thus mirrors his obstruction of that public censure is insufficient to deter House’s impeachment inquiry intended to

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00011 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.013 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S298 CONGRESSIONAL RECORD — SENATE January 21, 2020 hold him accountable for his misconduct pre- Ukraine to engage in ‘‘selective politically 28. See Impeachment of Donald J. Trump, sents a serious danger to our constitutional associated investigations or prosecutions’’ President of the United States: Report of the checks and balances. undermines the power of America’s example Comm. on the Judiciary of the H. of Representa- President Trump has made clear that he and our longstanding efforts to promote the tives, together with Dissenting Views, to Accom- refuses to accept Congress’s express—and ex- rule of law abroad.256 pany H. Res. 755, H. Rep. No. 116–346 (2019); clusive—constitutional role in conducting An acquittal would also provide license to Report of the H. Permanent Select Comm. on In- impeachments.248 He has thereby subverted President Trump and his successors to use telligence on the Trump-Ukraine Impeachment the Constitution that he pledged to uphold taxpayer dollars for personal political ends. Inquiry, together with Minority Views, H. Rep. when he was inaugurated on the steps of the Foreign aid is not the only vulnerable source No. 116–335 (2019); see also Majority Staff of Capitol. By his words and deeds, President of funding; Presidents could also hold hos- the H. Comm. on the Judiciary, 116th Cong., Trump has obstructed the House’s impeach- tage federal funds earmarked for States— Constitutional Grounds for Presidential Im- ment inquiry at every turn: He has dismissed such as money for natural disasters, high- peachment (Comm. Print 2019). impeachment as ‘‘illegal, invalid, and uncon- ways, and healthcare—unless and until State 29. H. Res. 755, at 2–5. stitutional’’; 249 directed the Executive officials perform personal political favors. 30. U.S. Const., Art. I, § 2, cl. 5. Branch not to comply with House subpoenas Any Congressional appropriation would be 31. See Statement of Facts TT 164–69. for documents and testimony; 250 and intimi- an opportunity for a President to solicit a 32. Id. TT 179–83. dated and threatened the anonymous intel- favor for his personal political purposes—or 33. See, e.g., id. TT 186–87. ligence community whistleblower as well as for others to seek to curry favor with him. 34. See id. TT 191–93. the patriotic public servants who honored Such an outcome would be entirely incom- 35. Id. TT 187–90. their subpoenas and testified before the patible with our constitutional system of 36. See id. T 178; H. Res. 755, at 5–8. House.251 self-government. 37. U.S. Const., Art. II, § 4. President Trump’s obstruction is part of President Trump has betrayed the Amer- 38. U.S. Const., Art. I, § 2, cl. 5. an ominous pattern of efforts ‘‘to undermine ican people and the ideals on which the Na- 39. U.S. Const., Art. I, § 3, cl. 6. United States Government investigations tion was founded. Unless he is removed from 40. U.S. Const., Art. II, § 4. into foreign interference in United States office, he will continue to endanger our na- 41. U.S. Const., Art. I, § 3, cl. 6. elections.’’ 252 Rather than assist Special tional security, jeopardize the integrity of 42. U.S. Const., Art. II, § 1, cl. 8. Counsel Mueller’s investigation into Russian our elections, and undermine our core con- 43. 2 The Records of the Federal Convention interference in the 2016 election and his own stitutional principles. of 1787, at 392 (Max Farrand ed., 1911) campaign’s exploitation of that foreign as- Respectfully submitted, (Farrand). sistance, President Trump repeatedly used ADAM B. SCHIFF, 44. Background and History of Impeachment: the powers of his office to impede it. Among JERROLD NADLER, Hearing Before the Subcomm. on the Constitu- other actions, President Trump directed the ZOE LOFGREN, tion of the H. Comm. on the Judiciary, 105th White House Counsel to fire the Special HAKEEM S. JEFFRIES, Cong. 49 (1998) (quoting James Iredell). Counsel and then create a false record of the VAL BUTLER DEMINGS, 45. 2 Farrand at 67. firing, tampered with witnesses in the Spe- JASON CROW, 46. See id. at 65. cial Counsel’s investigation, and repeatedly SYLVIA R. GARCIA. 47. Id. at 64. and publicly attacked the legitimacy of the U.S. House of Rep- 48. Id. at 65. investigation.253 President Trump has in- resentatives Man- 49. Id. at 64. structed the former White House Counsel to agers 50. See The Federalist No. 65 (Alexander defy a House Committee’s subpoena for testi- January 18, 2020 Hamilton). mony concerning these matters and the De- The House Managers wish to acknowledge 51. See, e.g., 2 Farrand at 65–66; George partment of Justice has argued that the the assistance of the following individuals in Washington, Farewell Address (Sept. 19, courts cannot even hear the Committee’s ac- preparing this trial memorandum: Douglas 1796), George Washington Papers, Series 2, tion to enforce its subpoena.254 N. Letter, Megan Barbero, Josephine Morse, Letterbooks 1754–1799: Letterbook 24, April 3, President Trump’s current obstruction of Adam A. Grogg, William E. Havemann, and 1793–March 3, 1797, Library of Congress Congress is, therefore, not the first time he Jonathan B. Schwartz of the House Office of (Washington Farewell Address); Adams-Jef- has committed misconduct concerning a fed- General Counsel; Daniel Noble, Daniel S. ferson Letter, https://perma.cc/QWD8-222B. eral investigation into election interference Goldman, and Maher Bitar of the House Per- 52. Washington Farewell Address. and then sought to hide it. Allowing this pat- manent Select Committee on Intelligence; 53. The Federalist No. 68 (Alexander Ham- tern to continue without repercussion would Norman L. Eisen, Barry H. Berke, Joshua ilton). send the clear message that President Trump Matz, and Sophia Brill of the House Com- 54. 2 Farrand at 66. is correct in his view that no governmental mittee on the Judiciary; the investigative 55. Adams-Jefferson Letter, https:// body can hold him accountable for wrong- staff of the House Committee on Oversight perma.cc/QWD8-222B. doing. That view is erroneous and exception- and Reform; and David A. O’Neil, Anna A. 56. U.S. Const., Art. II, § 1, cl. 5. ally dangerous. Moody, and Laura E. O’Neill. 57. U.S. Const., Art. I, § 9, cl. 8. 58. U.S. Const., Art. II, § 1, cl. 7. C. The Senate Should Convict and Remove 59. U.S. Const., Art. II, § 1, cl. 1. President Trump to Protect Our System of ENDNOTES 60. U.S. Const., Art. II, § 4; see 2 Farrand at Government and National Security Inter- 1. H. Res. 755, 116th Cong. (2019). 550. ests 2. See Statement of Material Facts (State- 61. 2 Farrand at 550. ment of Facts) (Jan. 18, 2020), TT 1–151 (filed as The Senate should convict and remove 62. The Federalist No. 65 (Alexander Ham- President Trump to avoid serious and long- an attachment to this Trial Memorandum). TT ilton) (capitalization altered). term damage to our democratic values and 3. Id. 75–76. 4. Id. TT 76–77. 63. These issues are discussed at length in the Nation’s security. TT the report by the House Committee on the If the Senate permits President Trump to 5. Id. 11–12. 6. Id. TT 11, 76. Judiciary. See H. Rep. No. 116–346, at 28–75. remain in office, he and future leaders would 7. Id. T 12. 64. Statement of Facts T 160. be emboldened to welcome, and even enlist, 8. Id. T 13. 65. Id. T 161. foreign interference in elections for years to 9. Id. T 14. 66. See id. TT 166, 180, 183, 189–90. come. When the American people’s faith in 10. See, e.g., id. T 53. 67. Id. T 162. their electoral process is shaken and its re- 11. See, e.g., id. TT 16, 18. 68. Id. T 164. sults called into question, the essence of 12. Id. T 59. 69. Id. TT 164–69. democratic self-government is called into 13. Id. TT 120–21. 70. Id. T 183. doubt. 14. Id. T 122. 71. Id. T 187. Failure to remove President Trump would 15. Id. T 88. 72. Id. TT 188–89. signal that a President’s personal interests 16. See, e.g., id. T 24. 73. Id. T 189. may take precedence over those of the Na- 17. See, e.g., id. TT 19, 25, 145–47. 74. Id. T 176; see also H. Rep. No. 116–335. tion, alarming our allies and emboldening 18. Id. TT 28–48. 75. Statement of Facts T 176; see also H. Res. our adversaries. Our leadership depends on 19. Id. TT 30–31. 755. the power of our example and the consist- 20. Id. T 46. 76. Statement of Facts T 178; H. Res. 755. ency of our purpose,’’ but because of Presi- 21. Id. TT 43, 46–48. 77. H. Res. 755, at 2–3. dent Trump’s actions, ‘‘[b]oth have now been 22. See, e.g., id. TT 127, 131. 78. Id. opened to question.’’ 255 23. See id. TT 49–69. 79. Id. at 3. Ratifying President Trump’s behavior 24. Id. T 50. 80. Id. would likewise erode longstanding U.S. anti- 25. Id. TT 3–4, 50. 81. Id. at 4. corruption policy, which encourages coun- 26. See id. T 137. 82. Id. at 5. tries to refrain from using the criminal jus- 27. Letter from John Adams to Thomas 83. Id. at 6. tice system to investigate political oppo- Jefferson (Dec. 6, 1787) (Adams-Jefferson Let- 84. Id. nents. As many witnesses explained, urging ter), https://perma.cc/QWD8-222B. 85. Id. at 8.

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00012 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.014 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S299 86. Id. at 7. 147. Id. T 59. Although Bolton has not co- 195. 4 Annals of Cong. 601 (statement of 87. Id. at 5, 8. operated with the House’s inquiry, he has of- Rep. William Lyman). 88. See Statement of Facts TT 1–157. fered to testify to the Senate if subpoenaed. 196. Cong. Globe, 29th Cong., 1st Sess. 698 89. See id. TT 1–157. 148. Id. T 58. (1846) (statement of President James K. 90. See, e.g., Report of the Impeachment Trial 149. Id. T 84. Polk); see also H. Rep. No. 116–346, at 139–42. Comm. on the Articles Against Judge G. Thomas 150. Id. T 83. 197. Remarks by President Nixon (Apr. 17, Porteous, Jr., S. Rep. No. 111–347, at 6–7 (2010); 151. Id. T 118. 1973), reprinted in Statement of Information: Impeachment of Judge Alcee L. Hastings: Report 152. Id. T 55 (recalling his statement to Am- Hearings Before the Comm. on the Judiciary, H. of the H. Comm. of the Judiciary to Accompany bassador Volker in July 2019). of Representatives: Book IV—Part 2, Events H. Res. 499, H. Rep. No. 100–810, at 1–5, 8, 41 153. Id. T 68. Following the Watergate Break-in (1974). (1988); 132 Cong. Rec. H4710–22 (daily ed. July 154. Id. T 104. 198. H. Rep. No. 116–346, at 142; see Impeach- 22, 1986) (impeachment of Judge Claiborne). 155. Id. T 150. ment of Richard M. Nixon, President of the 91. For a more detailed discussion of abuse 156. Id. T 151. United States: Report of the Comm. on the Judi- T of power as an impeachable offense, see H. 157. Id. 143. ciary, H. of Representatives, H. Rep. No. 93– TT Rep. No. 116–346, at 43–48, 68–70, 78–81. 158. See id. 2, 33. 1305, at 196 (1974). T 92. Statement of Facts TT 1–151. 159. See id. 88. 199. See H. Rep. No. 93–1305, at 10. TT TT 160. See id. 1–2. 200. Id. at 4. 93. Id. 11–12. TT 94. See id. T 12. 161. See id. 22–24. 201. Id. at 194. 162. See id. TT 36 n.73, 39. 95. Id. 202. See Statement of Facts T 177. 163. See id. T 7. 96. Id. TT 11, 17. 203. See id. T 169. 164. See id. TT 8–9, 81. 97. Id. T 12. 204. H. Res. 755, at 7; see Statement of 165. See id. T 82 n.138. 98. Facts T 169. Id. 166. See e.g., id. TT 82, 131. 205. Statement of Facts TT 179–83. 99. Id. 167. See id. TT 41–48. TT 206. Id. TT 186–87. 100. Id.; see also id. 83–84, 150. 168. See id. TT 43–45. TT 207. Id. T 186. 101. Id. 11, 84. 169. See id. T 44. TT 208. Id. T 190 & nn.309–10. 102. Id. 12–14. 170. See id. T 209. H. Res. 755, at 8. 103. Id. 14. 171. See id. T 131. 210. (Alexander Ham- 104. Id. T 13. 172. Id. T 28. The Federalist No. 69 105. Id. 173. Id. T 31. ilton). T 106. See id. TT 11–13, 83–84. 174. Id. 211. See Statement of Facts 184 & nn.296– 107. Id. T 6. 175. Id. 97. T 108. Id. TT 7–9. 176. Id. T 4. 212. Id. 45. As noted above, the testimony 109. Id. T 10 (quoting Mr. Giuliani). 177. Id. TT 132–33. of Messrs. Mulvaney, Blair, and Duffey would 110. Id. TT 28–48. 178. Id. T 4 & n.8. shed additional light on the White House’s 111. Id. T 35. 179. See id. T 50. efforts to create an after-the-fact justifica- 112. See id. TT 30–31, 34–35. 180. See id. tion for the President’s withholding of secu- 113. Id. T 39. 181. Transcript, Impeachment Inquiry: Fiona rity assistance. Ambassador Bolton’s testi- 114. Id. TT 39, 41–42. Hill and David Holmes: Hearing Before the H. mony would likewise be illuminating in this 115. Id. T 46. The GAO opinion addresses Permanent Select Comm. on Intelligence, 116th regard given public reporting of his repeated, only the portion of the funds appropriated to Cong. 175 (Nov. 21, 2019). yet unsuccessful, efforts to convince the the Department of Defense. The opinion ex- 182. Transcript, Impeachment Inquiry: Am- President to lift the hold. plains that OMB and the State Department bassador Marie ‘‘Masha’’ Yovanovitch: Hearing 213. See id. T 172. have not provided the information GAO Before the H. Permanent Select Comm. on Intel- 214. Id. needs to evaluate the legality of the hold ligence, 116th Cong. 19 (Nov. 15, 2019) 215. Id. placed by the President on the remaining (Yovanovitch Hearing Tr.). 216. Id. funds. 183. Transcript, Impeachment Inquiry: Am- 217. See, e.g., Landry v. Fed. Deposit Ins. 116. Id. T 76. bassador William B. Taylor and George Kent: Corp., 204 F.3d 1125, 1135 (D.C. Cir. 2000). 117. Id. TT 76, 80. Hearing Before the H. Permanent Select Comm. 218. See, e.g., In re Sealed Case, 121 F.3d 729, 118. Id. T 82. on Intelligence, 116th Cong. 165 (Nov. 13, 2019). 738 (D.C. Cir. 1997); Statement of Facts T 173 & 119. Id. T 77. 184. 4 Annals of Cong. 601 (1796) (statement n.280. 120. Id. T 101. of Rep. William Lyman) (noting that Con- 219. See H. Res. 755, at 7. 121. Id. T 110. gress has ‘‘the right to inspect every paper 220. 2 Farrand at 67. 122. Id. T 114. and transaction in any department’’ during 221. The Federalist No. 66 (Alexander Ham- 123. Id. TT 103, 130–31. an impeachment inquiry). ilton). 124. Id. T 3. 185. See, e.g., The Federalist No. 65 (Alex- 222. U.S. Const., Art. I, § 2, cl. 5. 125. See, e.g., id. T 4. ander Hamilton) (referring to the House as 223. U.S. Const., Art. I, § 5, cl. 2. 126. Id. T 88. the ‘‘inquisitors for the nation’’ for purposes 224. See, e.g., Statement of Facts T 163; see 127. Id. T 52. of impeachment); Kilbourn v. Thompson, 103 also U.S. Const., Art. I, § 2, cl. 5. 128. Id. T 137. U.S. 168, 193 (1880); 4 James D. Richardson 225. Statement of Facts T 163; 165 Cong. Rec. 129. Id. TT 141–42, 150. ed., Messages and Papers of Presidents 434–35 E1357 (2019) (Impeachment Inquiry Proce- 130. See generally Statement of Facts; H. (1896); see also H. Rep. No. 116–346, at 139–42 dures in the Committee on the Judiciary Rep. No. 116–346; H. Rep. No. 116–335. (collecting examples of past Presidents be- Pursuant to H. Res. 660); Investigatory Powers 131. Statement of Facts TT 11–15. ginning with George Washington acknowl- of the Comm. on the Judiciary with Respect to 132. Id. TT 16–19. edging the importance of Congress’s right to its Impeachment Inquiry, H. Rep. No. 105–795 133. See id. TT 154–56 (then-candidate information from the Executive Branch in (1998); H. Rep. No. 93–1305, at 8. Trump’s actions relating to the FBI’s inves- impeachment inquiries). 226. U.S. Const., Art. I, § 3, cl. 6. tigation into Hillary Clinton). 186. See generally H. Rep. No. 116–346, at 139– 227. Impeachment Inquiry: Hearings Before 134. Id. T 88. 48. the H. Comm. on the Judiciary, Book I, 93d 135. Id. T 121. Mr. Mulvaney, along with his 187. Quinn v. United States, 349 U.S. 155, 160– Cong. 497 (1974) (statement of Chairman deputy Robert Blair and OMB official Mi- 61 (1955). Peter W. Rodino, Jr.). chael Duffey—who were subpoenaed by the 188. Watkins v. United States, 354 U.S. 178, 228. See Statement of Facts T 192; Def.’s House, but refused to testify at the Presi- 187–88 (1957). Mot. to Dismiss, or in the Alternative, for dent’s direction, see id. 187—would provide 189. McGrain v. Daugherty, 273 U.S. 135, 174 Summ. J. at 20, Kupperman v. U.S. House of additional firsthand testimony regarding the (1927). Representatives, No. 19–3224 (D.D.C. Nov. 14, President’s withholding of official acts in ex- 190. Id. at 175. 2019), ECF No. 40; Defs.’ and Def.-Intervenors’ change for Ukraine’s assistance with his re- 191. Watkins, 354 U.S. at 187. Mot. to Dismiss at 46–47, Comm. on Ways & election. 192. 2 Joseph Story, Commentaries on the Means v. U.S. Dep’t of the Treasury, No. 19– 136. Id. T 18. Constitution of the United States § 1501 (2d ed. 1974 (D.D.C. Sept. 6, 2019), ECF No. 44; see also 137. Id. 1851). Brief for Def.-Appellant at 2, 3233, Comm. on 138. Id. T 19 (emphasis added). 193. In re Report & Recommendation of June the Judiciary v. McGahn, No. 19–5331 (D.C. Cir. 139. Id. T 24. 5, 1972 Grand Jury Concerning Transmission of Dec. 9, 2019). 140. Id. 78. Evidence to House of Representatives, 370 F. 229. See also Statement of Facts T 164 (‘‘I 141. Id. TT 11–15. 122. Supp. 1219, 1230 (D.D.C. 1974). have an Article II, where I have the right to 142. Id. 194. Kilbourn, 103 U.S. at 190. The Court in do whatever I want as president.’’). 143. Id. T 42. Kilbourn invalidated a contempt order by the 230. See id. T 192 & n.316. 144. Id. TT 43–48. House but explained that the ‘‘whole aspect 231. H. Res. 755, at 5. 145. Id. TT 45–46. of the case would have changed’’ if it had 232. Statement of Facts TT 191–93. 146. Id. T 140. been an impeachment proceeding. Id. at 193. 233. Id. T 13.

VerDate Sep 11 2014 18:55 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00013 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.016 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S300 CONGRESSIONAL RECORD — SENATE January 21, 2020 234. Id. TT 152–56. consistent with his prior conduct during and ian oligarch—had colluded with the Demo- 235. Id. T 152. after the 2016 election. cratic National Committee (DNC) to frame 236. Id T 156. STATEMENT OF MATERIAL FACTS Russia and help the election campaign of 17 237. Id. I. President Trump’s Abuse of Power Hillary Clinton. 238. Id. TT 76, 157. 12. There was no factual basis for either in- A. The President’s Scheme To Solicit For- 239. Id. T 77 n.132. vestigation. As to the first, witnesses unani- eign Interference in the 2020 Election From 240. H. Rep. No. 116–335, at XI. mously testified that there was no credible the New Ukrainian Government Began in 241. Statement of Facts T 142. evidence to support the allegations that, in Spring 2019 242. Id. late 2015, Vice President Biden corruptly en- 243. See id. TT 144–49. 1. On April 21, 2019, Volodymyr Zelensky, a couraged Ukraine to remove then-Prosecutor 244. Id. political neophyte, won a landslide victory General Viktor Shokin because he was inves- 245. Id. T 146. in Ukraine’s Presidential election.3 Zelensky tigating Burisma.18 Rather, Vice President 246. Id. T 149. campaigned on an anti-corruption platform, Biden was carrying out official U.S. policy— 247. Id. TT 19, 69, 89. and his victory reaffirmed the Ukrainian with bipartisan support 19—and promoting 248. See, e.g., id. TT 169–71; U.S. Const., Art. people’s strong desire for reform.4 anti-corruption reforms in Ukraine because I, § 2, cl. 5; U.S. Const., Art. I, § 3, cl. 6. 2. When President Trump called to con- Shokin was viewed by the United States, its 249. Statement of Facts T 177. gratulate Zelensky later that day, President European partners, and the International 250. Id. T 169. Trump did not raise any concerns about cor- Monetary Fund to be ineffectual at pros- 251. Id. T 177. ruption in Ukraine, although his staff had ecuting corruption and was himself cor- 252. H. Res. 755, at 7–8. prepared written materials for him recom- rupt.20 In fact, witnesses unanimously testi- 253. See Statement of Facts T 193. mending that he do so, and the White House fied that the removal of Shokin made it more 254. Id. T 192 & n.316. call readout incorrectly indicated he did.5 likely that Ukraine would investigate corrup- 255. Yovanovitch Hearing Tr. at 19. 3. During the call, President Trump prom- tion, including Burisma and its owner, not 256. Statement of Facts T 122. ised President-elect Zelensky that a high- less likely.21 The Ukrainian Parliament re- level U.S. delegation would attend his inau- moved Shokin in March 2016.22 [In the Senate of the United States Sitting guration and told him, ‘‘When you’re settled as a Court of Impeachment] 13. As to the second investigation, the U.S. in and ready, I’d like to invite you to the Intelligence Community determined that In re Impeachment of President Donald J. White House.’’ 6 Russia—not Ukraine—interfered in the 2016 Trump 4. Both events would have demonstrated election.23 The Senate Select Committee on STATEMENT OF MATERIAL FACTS—ATTACH- strong support by the United States as Intelligence reached the same conclusion fol- MENT TO THE TRIAL MEMORANDUM OF THE Ukraine fought a war—and negotiated for lowing its own lengthy bipartisan investiga- UNITED STATES HOUSE OF REPRESENTATIVES peace—with Russia. ‘‘Russia was watching tion.24 Special Counsel Robert Mueller, III, IN THE IMPEACHMENT TRIAL OF PRESIDENT closely to gauge the level of American sup- likewise concluded that the ‘‘Russian gov- DONALD J. TRUMP port for the Ukrainian Government.’’ 7 A ernment interfered in the 2016 presidential White House visit also would have bolstered INTRODUCTION election in sweeping and systematic fash- Zelensky’s standing at home as he pursued ion.’’ 25 And FBI Director Christopher Wray, The U.S. House of Representatives has his anti-corruption agenda.8 adopted Articles of Impeachment charging a Trump appointee, recently confirmed that 5. Following the April 21 call, President law enforcement ‘‘ha[s] no information that President Donald J. Trump with abuse of of- Trump asked Vice President Mike Pence to fice and obstruction of Congress. The House’s indicates that Ukraine interfered with the lead the American delegation to President 2016 presidential election.’’ 26 Trial Memorandum explains why the Senate Zelensky’s inauguration. During his own call should convict and remove President Trump 14. As Dr. Fiona Hill—who served until with President-elect Zelensky on April 23, July 2019 as the Senior Director of European from office, and permanently bar him from Vice President Pence confirmed that he government service. The Memorandum relies and Russian Affairs at the National Security would attend the inauguration ‘‘if the dates Council (NSC) under President Trump until on this Statement of Material Facts, which worked out.’’ 9 summarizes key evidence relating to the July 2019—testified, the theory of Ukrainian 6. On April 23, the media reported that interference in the 2016 election is a ‘‘fic- President’s misconduct. former Vice President Biden was going to As further described below, and as detailed tional narrative that is being perpetrated enter the 2020 race for the Democratic nomi- and propagated by the Russian security serv- in House Committee reports,1 President 10 nation for President of the United States. ices themselves’’ to deflect from Russia’s Trump used the powers of his office and U.S. 7. The next day, April 24, the State Depart- taxpayers’ money to pressure a foreign coun- own culpability and to drive a wedge be- ment executed President Trump’s order to 27 try, Ukraine, to interfere in the 2020 U.S. tween the United States and Ukraine. In recall the U.S. ambassador to Ukraine, Marie fact, shortly after the 2016 U.S. election, this Presidential election on his behalf. President ‘‘Masha’’ Yovanovitch, who was a well-re- Trump’s goals—which became known to mul- conspiracy theory was promoted by none garded career diplomat and champion for other than President Vladimir Putin him- tiple U.S. officials who testified before the 11 anti-corruption reforms in Ukraine. self.28 On May 3, 2019, shortly after President House—were simple and starkly political: he 8. The removal of Ambassador Yovanovitch Zelensky’s election, President Trump and wanted Ukraine’s new President to announce was the culmination of a months-long smear investigations that would assist his 2020 re- President Putin spoke by telephone, includ- campaign waged by the President’s personal 29 election campaign and tarnish a political op- ing about the so-called ‘‘Russian Hoax.’’ lawyer, Rudy Giuliani, and other allies of 15. President Trump’s senior advisors had ponent, former Vice President Joseph Biden, 12 the President. The President also helped attempted to dissuade the President from Jr. As leverage, President Trump illegally 13 amplify the smear campaign. promoting this conspiracy theory, to no withheld from Ukraine nearly $400 million in 9. Upon her return to the United States, avail. Dr. Hill testified that President vital military and other security assistance Ambassador Yovanovitch was informed by Trump’s former Homeland Security Advisor that had been appropriated by Congress, and State Department officials that there was no Tom Bossert and former National Security an official White House meeting that Presi- substantive reason or cause for her removal, Advisor H.R. McMaster ‘‘spent a lot of time dent Trump had promised Volodymyr but that President Trump had simply ‘‘lost trying to refute this [theory] in the first Zelensky, the newly elected President of confidence’’ in her.14 year of the administration.’’ 30 Bossert later Ukraine. President Trump did this despite 10. Mr. Giuliani later disclosed the true said the false narrative about Ukrainian in- U.S. national security officials’ unanimous motive for Ambassador Yovanovitch’s re- terference in the 2016 election was ‘‘not only opposition to withholding the aid from moval: Mr. Giuliani ‘‘believed that [he] need- a conspiracy theory, it is completely de- Ukraine, placing his own personal and polit- ed Yovanovitch out of the way’’ because bunked.’’ 31 ical interests above the national security in- ‘‘[s]he was going to make the investigations terests of the United States and undermining difficult for everybody.’’ 15 B. The President Enlisted His Personal At- the integrity of our democracy. 11. Mr. Giuliani was referring to the two torney and U.S. Officials To Help Execute When this scheme became known and Com- politically motivated investigations that the Scheme for His Personal Benefit mittees of the House launched an investiga- President Trump solicited from Ukraine in 16. Shortly after his April 21 call with tion, the President, for the first time in order to assist his 2020 reelection campaign: President Zelensky, President Trump began American history, ordered the categorical one into former Vice President Biden and a to publicly press for the two investigations obstruction of an impeachment inquiry. Ukrainian gas company, Burisma Holdings, he wanted Ukraine to pursue. On April 25— President Trump directed that no witnesses on whose board Biden’s son sat; 16 the other the day that former Vice President Biden an- should testify and no documents should be into a discredited conspiracy theory that nounced his candidacy for the Democratic produced to the House, a co-equal branch of Ukraine, not Russia, had interfered in the nomination for President—President Trump government endowed by the Constitution 2016 U.S. election to help Hillary Clinton’s called into Sean Hannity’s prime time Fox with the ‘‘sole Power of Impeachment.’’ 2 campaign. One element of the latter con- News show. Referencing alleged Ukrainian President Trump’s conduct—both in solic- spiracy theory was that CrowdStrike—a interference in the 2016 election, President iting a foreign country’s interference in a NASDAQ-listed cybersecurity firm based in Trump said, ‘‘It sounds like big stuff,’’ and U.S. election and then obstructing the ensu- Sunnyvale, California, that the President er- suggested that the Attorney General might ing investigation into that interference—was roneously believed was owned by a Ukrain- investigate.32

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00014 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.018 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S301 17. On May 6, in a separate Fox News inter- to coordinate and work with Mr. Giuliani to struction and Development, and others) com- view, President Trump claimed Vice Presi- satisfy the President’s demands.46 mitted over 15 billion in grants and loans to dent Biden’s advocacy for Mr. Shokin’s dis- 25. Mr. Giuliani is not a U.S. government support the reform process in Ukraine.66 Ac- missal in 2016 was ‘‘a very serious problem’’ official and has never served in the Trump cording to EU data, Germany contributed and ‘‘a major scandal, major problem.’’ 33 Administration. Rather, as he has repeatedly Ö786.5 million to Ukraine between 2014 and 18. On May 9, the New York Times reported made clear, his goal was to obtain ‘‘informa- 2017; the United Kingdom contributed Ö105.6 that Mr. Giuliani was planning to travel to tion [that] will be very, very helpful to my million; and France contributed Ö61.9 million Ukraine to urge President Zelensky to pur- client’’—President Trump.47 Mr. Giuliani over that same period (not including the sue the investigations.34 Mr. Giuliani ac- made clear to Ambassadors Sondland and amounts these countries contribute through knowledged that ‘‘[s]omebody could say it’s Volker, who were in direct communications the EU).67 improper’’ to pressure Ukraine to open inves- with Ukrainian officials, that a White House 33. In 2017 and 2018, the United States pro- tigations that would benefit President meeting would not occur until Ukraine an- vided approximately $511 million and $359 Trump, but he argued: nounced its pursuit of the two political in- million, respectively, in foreign assistance to [T]his isn’t foreign policy—I’m asking vestigations.48 Ukraine, including military and other secu- them to do an investigation that they’re 26. On June 17, Ambassador Bill Taylor, rity assistance.68 During those two years, doing already, and that other people are tell- whom Secretary of State Mike Pompeo had President Trump and his Administration al- ing them to stop. And I’m going to give them asked to replace Ambassador Yovanovitch, lowed the funds to flow to Ukraine reasons why they shouldn’t stop it because arrived in Kyiv as the new Charge´ d’Af- unimpeded.69 that information will be very, very helpful to faires.49 34. For fiscal year 2019, Congress appro- my client, and may turn out to be helpful to 27. Ambassador Taylor quickly observed priated and authorized $391 million in tax- my government.35 that there was an ‘‘irregular channel’’ led by payer-funded security assistance to Ukraine: Ukraine was not, in fact, ‘‘already’’ con- Mr. Giuliani that, over time, began to under- $250 million in funds administered by the De- ducting these investigations. As described mine the official channel of U.S. diplomatic partment of Defense (DOD) and $115 million below, the Trump Administration repeatedly relations with Ukraine.50 Ambassador in funds administered by the State Depart- tried but failed to get Ukrainian officials to Sondland similarly testified that the agenda ment, with another $26 million carried over instigate these investigations. According to described by Mr. Giuliani became more ‘‘in- from fiscal year 2018.70 Mr. Giuliani, the President supported his ac- sidious’’ over time.51 Mr. Giuliani would 35. DOD planned to use the funds to provide tions, stating that President Trump ‘‘basi- prove to be, as the President’s National Se- Ukraine with sniper rifles, rocket-propelled cally knows what I’m doing, sure, as his law- curity Advisor Ambassador John Bolton told grenade launchers, counter-artillery radars, yer.’’ 36 a colleague, a ‘‘hand grenade that was going electronic warfare detection and secure com- 19. IN a letter dated May 10, 2019, and ad- to blow everyone up.’’ 52 munications, and night vision equipment, dressed to President-elect Zelensky, Mr. C. The President Froze Vital Military and among other military equipment, to defend Giuliani wrote that he ‘‘represent[ed] him Other Security Assistance for Ukraine itself against Russian forces, which have oc- [President Trump] as a private citizen, not cupied part of eastern Ukraine since 2014.71 as President of the United States.’’ In his ca- 28. Since 2014, Ukraine has been engaged in These purposes were consistent with the pacity as ‘‘personal counsel to President an ongoing armed conflict with Russia in the goals of Congress, which had appropriated 53 Trump, and with his knowledge and con- Donbas region of eastern Ukraine. Ukraine the funds administered by DOD under the sent,’’ Mr. Giuliani requested a meeting with is a ‘‘strategic partner of the United States,’’ Ukraine Security Assistance Initiative President Zelensky the following week to and the United States has long supported (USAI) for the purpose of providing ‘‘train- 54 discuss a ‘‘specific request.’’ 37 Ukraine in its conflict with Russia. As Am- ing; equipment; lethal assistance; logistics 20. On the evening of Friday, May 10, how- bassador Volker and multiple other wit- support, supplies and services; sustainment; ever, Mr. Giuliani announced that he was nesses testified, supporting Ukraine is ‘‘criti- and intelligence support to the military and canceling his trip.38 He later explained, ‘‘I’m cally important’’ to U.S. interests, including national security forces of Ukraine, and . . . not going to go’’ to Ukraine ‘‘because I’m countering Russian aggression in the re- replacement of any weapons or articles pro- gion.55 walking into a group of people that are en- vided to the Government of Ukraine.’’ 72 emies of the President.’’ 39 29. Ukrainians face casualties on a near- 36. On June 18, 2019, after all Congression- 21. By the following Monday morning, May daily basis in their ongoing conflict with ally mandated conditions on the DOD-admin- 56 13, President Trump had ordered Vice Presi- Russia. Since 2014, Russian aggression has istered aid—including certification that dent Pence not to attend President resulted in more than 13,000 Ukrainian Ukraine had adopted sufficient anti-corrup- 57 Zelensky’s inauguration in favor of a lower- deaths on Ukrainian territory, including tion reforms—were met, DOD issued a press ranking delegation led by Secretary of En- approximately 3,331 civilians, and has release announcing its intention to provide 58 ergy Rick Perry.40 wounded another 30,000 persons. the $250 million in security assistance to 22. The U.S. delegation—which also in- 30. Since 2014, following Russia’s invasion Ukraine.73 cluded Ambassador to the European Union of Ukraine and its annexation of the Cri- 37. On June 19, the Office of Management Gordon Sondland, Special Representative for mean Peninsula, Congress has allocated and Budget 1(OMB) received questions from Ukraine Negotiations Ambassador Kurt military and other security assistance funds President Trump about the funding for 59 Volker, and NSC Director for Ukraine Lieu- to Ukraine on a broad bipartisan basis. Ukraine.74 OMB, in turn, made inquiries with tenant Colonel Alexander Vindman—re- Since 2014, the United States has provided DOD.75 turned from the inauguration convinced that approximately $3.1 billion in foreign assist- 38. On June 27, Acting Chief of Staff Mick President Zelensky was genuinely com- ance to Ukraine: $1.5 billion in military and Mulvaney reportedly emailed his senior advi- mitted to anti-corruption reforms.41 other security assistance, and $1.6 billion in sor Robert Blair, ‘‘Did we ever find out about 23. At a meeting in the Oval Office on May non-military, non-humanitarian aid to the money for Ukraine and whether we can 23, members of the delegation relayed their Ukraine.60 hold it back?’’ Mr. Blair responded that it positive impressions to President Trump and 31. The military assistance provided by the would be possible, but they should ‘‘[e]xpect encouraged him to schedule the promised United States to Ukraine ‘‘saves lives’’ by Congress to become unhinged’’ if the Presi- Oval Office meeting for President Zelensky. making Ukrainian resistance to Russia more dent held back the appropriated funds.76 President Trump, however, said he ‘‘didn’t effective.61 It likewise advances U.S. na- 39. Around this time, despite overwhelming believe’’ the delegation’s positive assess- tional security interests because, ‘‘[i]f Rus- support for the security assistance from ment, claiming ‘‘that’s not what I hear’’ sia prevails and Ukraine falls to Russian do- every relevant Executive Branch agency,77 from Mr. Giuliani.42 The President cast his minion, we can expect to see other attempts and despite the fact that the funds had been dim view of Ukraine in personal terms, stat- by Russia to expand its territory and influ- authorized and appropriated by Congress ing that Ukraine ‘‘tried to take me down’’ ence.’’ 62 Indeed, the reason the United States with strong bipartisan support,78 the Presi- during the 2016 election—an apparent ref- provides assistance to the Ukrainian mili- dent ordered a hold on all military and other erence to the debunked conspiracy theory tary is ‘‘so that they can fight Russia over security assistance for Ukraine.79 that Ukraine interfered in the 2016 election there, and we don’t have to fight Russia 40. By July 3, OMB had blocked the release to help Hillary Clinton and harm his cam- here.’’ 63 of $141 million in State Department funds. paign.43 32. The United States’ European allies have By July 12, all military and other security 24. Rather than commit to a date for an similarly provided political and economic assistance for Ukraine had been blocked.80 Oval Office meeting with President support to Ukraine. Since 2014, the European 41. On July 18, OMB announced to the rel- Zelensky, President Trump directed the del- Union (EU) has been the largest donor to evant Executive Branch agencies during a se- egation to ‘‘[t]alk to Rudy, talk to Rudy.’’ 44 Ukraine.64 The EU has extended more macro- cure videoconference that President Trump Ambassador Sondland testified that ‘‘if [the financial assistance to Ukraine—approxi- had ordered a hold on all Ukraine security delegation] never called Rudy and just left it mately Ö3.3 billion—than to any other non- assistance.81 No explanation for the hold was alone nothing would happen with Ukraine,’’ EU country and has committed to extend an- provided.82 and ‘‘if [the President] was going to have his other Ö1.1 billion.65 Between 2014 and Sep- 42. On July 25—approximately 90 minutes mind changed, that was the path.’’ 45 Fol- tember 30, 2019, the EU and the European fi- after President Trump spoke by phone with lowing the May 23 meeting, Secretary Perry nancial institutions (including the European President Zelensky—OMB’s Associate Direc- and Ambassadors Sondland and Volker began Investment Bank, European Bank for Recon- tor for National Security Programs, Michael

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00015 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.110 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S302 CONGRESSIONAL RECORD — SENATE January 21, 2020 Duffey, a political appointee, instructed DOD was in America’s national security inter- stated—in front of multiple witnesses, in- officials: ‘‘Based on guidance I have received est.98 On August 30, however, an OMB official cluding two top advisors to President and in light of the Administration’s plan to advised a Pentagon official by email that Zelensky and Ambassador Bolton—that he review assistance to Ukraine, including the there was a ‘‘clear direction from POTUS to had an arrangement with Mr. Mulvaney to Ukraine Security Assistance Initiative, continue to hold.’’ 99 schedule the White House visit after Ukraine please hold off on any additional DoD obliga- 48. Contrary to U.S. national security in- initiated the ‘‘investigations.’’ 111 tions of these funds, pending direction from terests—and over the objections of his own 57. In a second meeting in the White House that process.’’ 83 He added: ‘‘Given the sen- advisors—President Trump continued to Ward Room shortly thereafter, ‘‘Ambassador sitive nature of the request, I appreciate withhold the funding to Ukraine through Au- Sondland, in front of the Ukrainians . . . was your keeping that information closely held gust and into September, without any cred- talking about how he had an agreement with to those who need to know to execute the di- ible explanation.100 Chief of Staff Mulvaney for a meeting with 84 rection.’’ D. President Trump Conditioned a White the Ukrainians if they were going to go for- 43. In late July, the NSC convened a series 112 More specifi- House Meeting on Ukraine Announcing It ward with investigations.’’ of interagency meetings during which senior cally, Lt. Col. Vindman testified that Am- Would Launch Politically Motivated Inves- Executive Branch officials discussed the hold bassador Sondland said ‘‘[t]hat the Ukrain- tigations on security assistance.85 Over the course of ians would have to deliver an investigation these meetings, a number of facts became 49. Upon his arrival in Kyiv in June 2019, into the Bidens.’’ 113 clear: (1) the President personally directed Ambassador Taylor sought to schedule the 58. During that meeting, Dr. Hill and Lt. the hold through OMB; 86 (2) no credible jus- promised White House meeting for President Col. Vindman objected to Ambassador tification was provided for the hold; 87 (3) Zelensky, which was ‘‘an agreed-upon goal’’ Sondland intertwining what Dr. Hill later with the exception of OMB, all relevant of policymakers in Ukraine and the United described as a ‘‘domestic political errand’’ agencies supported the Ukraine security as- States.101 with official national security policy toward sistance because, among other things, it was 50. As Ambassador Volker explained, a Ukraine.114 in the national security interests of the White House visit by President Zelensky 59. Following the July 10 meetings, Dr. Hill United States; 88 and (4) there were serious would constitute ‘‘a tremendous symbol of discussed what had occurred with Ambas- concerns about the legality of the hold.89 support’’ for Ukraine and would ‘‘enhance[] sador Bolton, including Ambassador 44. Although President Trump later [President Zelensky’s] stature.’’ 102 Sondland’s reiteration of the quid pro quo to claimed that the hold was part of an effort to 51. Ambassador Taylor learned, however, the Ukrainians in the Ward Room. Ambas- get European allies to share more of the that President Trump ‘‘wanted to hear from sador Bolton told her to ‘‘go and tell [the costs for security assistance for Ukraine, of- Zelensky,’’ who had to ‘‘make clear’’ to NSC Legal Advisor] that I am not part of ficials responsible for the security assistance President Trump that he was not ‘‘standing whatever drug deal Sondland and Mulvaney testified they had not heard that rationale in the way of investigations.’ ’’ 103 It soon be- are cooking up on this.’’ 115 discussed in June, July, or August. For ex- came clear to Ambassador Taylor and others 60. Both Dr. Hill and Lt. Col. Vindman sep- ample, Mark Sandy, OMB’s Deputy Associate that the White House meeting would not be arately reported Sondland’s description of Director for National Security Programs, scheduled until the Ukraine committed to the quid pro quo during the July 10 meetings who is responsible for DOD’s portion of the the investigations of ‘‘Burisma and alleged to NSC Legal Advisor, John Eisenberg, who 116 Ukraine security assistance, testified that Ukrainian influence in the 2016 elections.’’ 104 said he would follow up. 61. After the July 10 meetings, Andriy the European burden-sharing explanation 52. Ambassador Sondland was unequivocal Yermak, a top aide to President Zelensky was first provided to him in September—fol- in describing this conditionality. He testi- who was in the meetings, followed up with lowing his repeated requests to learn the rea- fied: Ambassador Volker by text message: ‘‘Thank son for the hold.90 Deputy Assistant Sec- I know that members of this committee you for meeting and your clear and very log- retary of Defense Laura Cooper, whose re- frequently frame these complicated issues in ical position . . . I feel that the key for sponsibilities include the Ukraine security the form of a simple question: Was there a many things is Rudi [sic] and I [am] ready to assistance, testified that she had ‘‘no recol- quid pro quo? As I testified previously with talk with him at any time.’’ 117 lection of the issue of allied burden sharing regard to the requested White House call and the White House meeting, the answer is 62. Over the next two weeks, Ambassadors coming up’’ in the three meetings she at- Sondland and Volker coordinated with Mr. yes.105 tended about the freeze on security assist- Giuliani and senior Ukrainian and American ance, nor did she recall hearing about a lack 53. According to Ambassador Sondland, the public announcement of the investigations— officials to arrange a telephone call between of funding from Ukraine’s allies as a reason President Trump and President Zelensky. 91 and not necessarily the pursuit of the inves- for the freeze. Ms. Cooper further testified They also worked to ensure that, during that tigations themselves—was the price Presi- that there was no policy or interagency re- phone call, President Zelensky would con- dent Trump sought in exchange for a White view process relating to the Ukraine security vince President Trump of his willingness to House meeting with Ukrainian President assistance that she ‘‘participated in or knew undertake the investigations in order to get 92 Zelensky.106 of’’ in August 2019. In addition, while the the White House meeting scheduled.118 aid was being withheld, Ambassador 54. Both Ambassadors Volker and Sondland 63. On July 19, Ambassador Volker had Sondland, the U.S. Ambassador to the EU, explicitly communicated this quid pro quo to breakfast with Mr. Giuliani at the Trump was never asked to reach out to the EU or its Ukrainian government officials. For exam- Hotel in Washington, D.C. After the meeting, member states to ask them to increase their ple, on July 2, in Toronto, Canada, Ambas- Ambassador Volker reported back to Ambas- contributions to Ukraine.93 sador Volker conveyed the message directly sadors Sondland and Taylor about his con- 45. Two OMB career officials, including one to President Zelensky and referred to the versation with Mr. Giuliani, stating, ‘‘Most of its legal counsel, ultimately resigned, in ‘‘Giuliani factor’’ in President Zelensky’s en- impt is for Zelensky to say that he will help 107 part, over concerns about the handling of the gagement with the United States. Ambas- investigation—and address any specific per- hold on security assistance.94 A confidential sador Volker told Ambassador Taylor that sonnel issues—if there are any.’’ 119 White House review has reportedly ‘‘turned during the Toronto conference, he counseled 64. The same day, Ambassador Sondland up hundreds of documents that reveal exten- President Zelensky about how he ‘‘could pre- spoke with President Zelensky and rec- sive efforts to generate an after-the-fact jus- pare for the phone call with President ommended that the Ukrainian leader tell tification’’ for the hold.95 Trump’’—specifically, that President Trump President Trump that he ‘‘will leave no 46. Throughout August, officials from DOD ‘‘would like to hear about the investiga- stone unturned’’ regarding the investiga- warned officials from OMB that, as the hold tions.’’ 108 tions during the upcoming Presidential continued, there was an increasing risk that 55. Ambassador Volker confirmed that, in phone call.120 the funds for Ukraine would not be timely ‘‘a pull-aside’’ meeting in Toronto, he 65. Following his conversation with Presi- obligated, in violation of the Impoundment ‘‘advise[d] [President Zelensky] that he dent Zelensky, Ambassador Sondland Control Act of 1974.96 On January 16, 2020, the should call President Trump personally be- emailed top Trump Administration officials, U.S. Government Accountability Office cause he needed to . . . be able to convey to including Secretary Pompeo, Mr. Mulvaney, (GAO) concluded that OMB had, in fact, vio- President Trump that he was serious about and Secretary Perry. Ambassador Sondland lated the Impoundment Control Act when it fighting corruption, investigating things stated that President Zelensky confirmed withheld from obligation funds appropriated that happened in the past and so forth.’’ 109 that he would ‘‘assure’’ President Trump by Congress to DOD for security assistance Upon hearing about this discussion, Deputy that ‘‘he intends to run a fully transparent to Ukraine. GAO stated that ‘‘[f]aithful exe- Assistant Secretary of State for European investigation and will turn over every cution of the law does not permit the Presi- and Eurasian Affairs George Kent told Am- stone.’ ’’ 121 dent to substitute his own policy priorities bassador Volker that ‘‘asking for another 66. Secretary Perry responded to Ambas- for those that Congress has enacted into country to investigate a prosecution for po- sador Sondland’s email, ‘‘Mick just con- law.’’ 97 litical reasons undermines our advocacy of firmed the call being set up for tomorrow by 47. In late August, Secretary of Defense the rule of law.’’ 110 NSC.’’ About an hour later, Mr. Mulvaney re- Mike Esper, Secretary of State Pompeo, and 56. On July 10, at a meeting with Ukrainian plied, ‘‘I asked NSC to set it up for tomor- National Security Advisor Bolton reportedly officials in Ambassador Bolton’s office at the row.’’ 122 urged the President to release the aid to White House, Ambassador Sondland was even 67. According to Ambassador Sondland, Ukraine, advising the President that the aid more explicit about the quid pro quo. He this email—and other correspondence with

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00016 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.111 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S303 top Trump Administration officials—showed 79. President Zelensky agreed, referencing tive] about Ukraine.’’ Rather, the President that his efforts regarding Ukraine were not Mr. Giuliani’s back-channel role, noting that cared only about ‘‘big stuff’’ that benefited part of a rogue foreign policy. To the con- Mr. Yermak ‘‘spoke with Mr. Giuliani just him personally, like ‘‘the Biden investiga- trary, Ambassador Sondland testified that recently and we are hoping very much that tion that Mr. Giuliani was pushing,’’ and ‘‘everyone was in the loop.’’ 123 Mr. Giuliani will be able to travel to Ukraine that President Trump had directly solicited 68. The Ukrainians also understood the and we will meet once he comes to during the July 25 call.147 quid pro quo—and the domestic U.S. political Ukraine.’’ 135 F. President Trump Conditioned the Release ramifications of the investigations they were 80. Later in the call, President Zelensky of Security Assistance for Ukraine, and being asked to pursue. On July 20, a close ad- heeded the directives he had received from Continued To Leverage a White House visor to President Zelensky warned Ambas- Ambassadors Sondland and Volker: he Meeting, To Pressure Ukraine To Launch sador Taylor that the Ukrainian leader ‘‘did thanked President Trump for his invitation Politically Motivated Investigations not want to be used as a pawn in a U.S. re- to the White House and then reiterated that, 89. As discussed further below, following election campaign.’’ 124 The next day, Ambas- ‘‘[o]n the other hand,’’ he would ‘‘ensure’’ the July 25 call, President Trump’s rep- sador Taylor warned Ambassador Sondland that Ukraine pursued ‘‘the investigation’’ resentatives, including Ambassadors that President Zelensky was ‘‘sensitive that President Trump had requested. Presi- Sondland and Volker, in coordination with about Ukraine being taken seriously, not dent Zelensky confirmed the investigations Mr. Giuliani, pressed the Ukrainians to issue merely as an instrument in Washington do- should be done ‘‘openly.’’ 136 a public statement announcing the inves- mestic, reelection politics.’’ 125 81. During the call, President Trump also tigations. At the same time, officials in both 69. Nevertheless, President Trump, directly attacked Ambassador Yovanovitch. He said, the United States and Ukraine became in- and through his hand-picked representatives, ‘‘The former ambassador from the United creasingly concerned about President continued to press the Ukrainian govern- States, the woman, was bad news and the Trump’s continuing hold on security assist- ment for the announcement of the investiga- people she was dealing with in the Ukraine ance.148 tions, including during President Trump’s were bad news so I just want to let you know 90. The Ukrainian government was aware July 25 call with President Zelensky.126 that.’’ He later added, ‘‘Well, she’s going to go through some things.’’ President Trump of the hold by at least late July, around the E. President Trump Directly Solicited Elec- time of President Trump’s July 25 call with tion Interference From President Zelensky also defended then-Ukrainian Prosecutor General Yuriy Lutsenko, who was widely President Zelensky. On the day of the call 70. In the days leading up to President itself, DOD officials learned that diplomats known to be corrupt.137 Trump’s July 25 call with President 82. The President did not mention any at the Ukrainian Embassy in Washington, Zelensky, U.S. polling data showed former other issues relating to Ukraine, including D.C., had made multiple overtures to DOD Vice President Biden leading in a head-to- concerns about Ukrainian corruption, Presi- and the State Department ‘‘asking about se- 127 149 head contest against President Trump. dent Zelensky’s anti-corruption reforms, or curity assistance.’’ 71. Meanwhile, Ambassadors Sondland and the ongoing war with Russia. The President 91. Around this time, two different officials Volker continued to prepare President only identified two people in reference to in- at the Ukrainian Embassy approached Am- Zelensky and his advisors for the call with vestigations: Vice President Biden and his bassador Volker’s special advisor to ask her 150 President Trump until right before it oc- son.138 about the hold. curred. 83. Listening to the call as it transpired, 92. By mid-August, before the hold was 72. On the morning of July 25, Ambassador several White House staff members became public, Lt. Col. Vindman also received in- Sondland spoke with President Trump in ad- alarmed. Lt. Col. Vindman immediately re- quiries from the Ukrainian Embassy. Lt. Col. vance of his call with President Zelensky. ported his concerns to NSC lawyers because, Vindman testified that during this time- Ambassador Sondland then called Ambas- as he testified, ‘‘[i]t is improper for the frame, ‘‘it was no secret, at least within gov- sador Volker and left a voicemail.128 President of the United States to demand a ernment and official channels, that security 73. After receiving Ambassador Sondland’s foreign government investigate a U.S. cit- assistance was on hold.’’ 151 message, Ambassador Volker sent a text izen and a political opponent.’’ 139 93. The former Ukrainian deputy foreign message to President Zelensky’s aide, Mr. 84. Jennifer Williams, an advisor to Vice minister, Olena Zerkal, has acknowledged Yermak, approximately 30 minutes before President Pence, testified that the call that she became aware of the hold on secu- the call: struck her as ‘‘unusual and inappropriate’’ rity assistance no later than July 30 based on Heard from White House—assuming Presi- and that ‘‘the references to specific individ- a diplomatic cable—transmitted the previous dent Z convinces trump he will investigate/ uals and investigations, such as former Vice week—from Ukrainian officials in Wash- ‘‘get to the bottom of what happened’’ in President Biden and his son, struck me as ington, D.C.152 She said that President 2016, we will nail down date for visit to political in nature.’’ 140 She believed Presi- Zelensky’s office had received a copy of the Washington. Good luck! 129 dent Trump’s solicitation of an investigation cable ‘‘simultaneously.’’ 153 Ms. Zerkal fur- 74. In his public testimony, Ambassador was ‘‘inappropriate’’ because it ‘‘appeared to ther stated that President Zelensky’s top ad- Sondland confirmed that Ambassador be a domestic political matter.’’ 141 visor, Andriy Yermak, told her ‘‘to keep si- Volker’s text message to Mr. Yermak accu- 85. Timothy Morrison, Dr. Hill’s successor lent, to not comment without permission’’ rately summarized the directive he had re- as the NSC’s Senior Director for Europe and about the hold or about when the Ukrainian ceived from President Trump earlier that Russia and Lt. Col. Vindman’s supervisor, government became aware of it.154 morning.130 said that ‘‘the call was not the full-throated 94. In early August, Ambassadors Sondland 75. During the roughly 30–minute July 25 endorsement of the Ukraine reform agenda and Volker, in coordination with Mr. call, President Zelensky thanked President that I was hoping to hear.’’ 142 He too re- Giuliani, endeavored to pressure President Trump for the ‘‘great support in the area of ported the call to NSC lawyers, worrying Zelensky to make a public statement an- defense’’ provided by the United States and that the call would be ‘‘damaging’’ if leaked nouncing the investigations. On August 10— stated that Ukraine would soon be prepared publicly.143 in a text message that showed the Ukrain- to purchase additional Javelin anti-tank 86. In response, Mr. Eisenberg and his dep- ians’ understanding of the quid pro quo— missiles from the United States.131 uty, Michael Ellis, tightly restricted access President Zelensky’s advisor, Mr. Yermak, 76. President Trump immediately re- to the call summary, which was placed on a told Ambassador Volker that, once a date sponded with his own request: ‘‘I would like highly classified NSC server even though it was set for the White House meeting, he you to do us a favor though,’’ which was ‘‘to did not contain any highly classified infor- would ‘‘call for a press briefing, announcing find out what happened’’ with alleged mation.144 upcoming visit and outlining vision for the Ukrainian interference in the 2016 election 87. On July 26, the day after the call, Am- reboot of US-UKRAINE relationship, includ- and to ‘‘look into’’ former Vice President bassador Sondland had lunch with State De- ing among other things Burisma and election Biden’s role in encouraging the removal of partment aides in Kyiv, including David meddling in investigations[.]’’ 155 the former Ukrainian prosecutor general. Holmes, the Counselor for Political Affairs 95. On August 11, Ambassador Sondland 77. Referencing Special Counsel Mueller’s at the U.S. Embassy in Kyiv. During the emailed two State Department officials, one investigation into Russian interference in lunch, Ambassador Sondland called Presi- of whom acted as a direct line to Secretary the 2016 election, President Trump told dent Trump directly from his cellphone. Pompeo, to inform them about the agree- President Zelensky, ‘‘[T]hey say a lot of it President Trump asked Ambassador ment for President Zelensky to issue a state- started with Ukraine,’’ and ‘‘[w]hatever you Sondland whether President Zelensky was ment that would include an announcement can do, it’s very important that you do it if ‘‘going to do the investigation.’’ Ambassador of the two investigations. Ambassador that’s possible.’’ 132 Sondland stated that President Zelensky was Sondland stated that he expected a draft of 78. President Trump repeatedly pressed the ‘‘going to do it’’ and would ‘‘do anything you the statement to be ‘‘delivered for our review Ukrainian President to consult with his per- ask him to.’’ 145 in a day or two[,]’’ and that he hoped the sonal lawyer, Mr. Giuliani, as well as Attor- 88. After the call, it was clear to Ambas- statement would ‘‘make the boss [i.e., Presi- ney General William Barr, about the two sador Sondland that ‘‘a public statement dent Trump] happy enough to authorize an specific investigations.133 President Trump from President Zelensky’’ committing to the invitation’’ for a White House meeting.156 stated, ‘‘Rudy very much knows what’s hap- investigations was a ‘‘prerequisite’’ for a 96. On August 12, Mr. Yermak texted Am- pening and he is a very capable guy. If you White House meeting.146 He told Mr. Holmes bassador Volker an initial draft of the state- could speak to him that would be great.’’ 134 that President Trump ‘‘did not give a [exple- ment. The draft referred to ‘‘the problem of

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00017 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.112 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S304 CONGRESSIONAL RECORD — SENATE January 21, 2020 interference in the political processes of the recently appointed Ukrainian prosecutor 114. On September 7, President Trump and United States,’’ but it did not explicitly general later remarked, ‘‘It’s critically im- Ambassador Sondland spoke by telephone.185 mention the two investigations that Presi- portant for the west not to pull us into some As Ambassador Sondland relayed later that dent Trump had requested in the July 25 conflicts between their ruling elites[.]’’ 169 day during a call with Mr. Morrison, Presi- call.157 105. On September 1—within days of Presi- dent Trump told him ‘‘that there was no quid 97. The next day, Ambassadors Volker and dent Trump rejecting the request from Sec- pro quo, but President Zelensky must an- Sondland discussed the draft statement with retaries Pompeo and Esper and Ambassador nounce the opening of the investigations and Mr. Giuliani, who told them, ‘‘If [the state- Bolton to release the hold 170—Vice President he should want to do it.’’ 186 ment] doesn’t say Burisma and 2016, it’s not Pence met with President Zelensky in War- 115. Mr. Morrison conveyed the substance credible[.]’’ 158 As Ambassador Sondland saw, Poland after President Trump cancelled of the September 7 call between President would later testify, ‘‘Mr. Giuliani was ex- his trip.171 Trump and Ambassador Sondland to Ambas- pressing the desires of the President of the 106. In advance of this meeting, Ambas- sador Taylor. Mr. Morrison said that the call United States, and we knew these investiga- sador Sondland told Vice President Pence had given him ‘‘a sinking feeling’’ because he tions were important to the President.’’ 159 that he ‘‘had concerns that the delay in aid feared the security assistance would not be 98. Ambassadors Volker and Sondland re- had become tied to the issue of investiga- released before September 30, the end of the layed this message to Mr. Yermak and sent tions.’’ 172 Sondland testified that Vice Presi- fiscal year, and because he ‘‘did not think it him a revised statement that included ex- dent Pence ‘‘nodded like, you know, he heard was a good idea for the Ukrainian President plicit references to ‘‘Burisma and the 2016 what I said, and that was pretty much it.’’ 173 to . . . involve himself in our politics.’’ 187 At U.S. elections.’’ 160 107. During the meeting that followed, Ambassador Bolton’s direction, Mr. Morrison 99. In light of President Zelensky’s anti- which Ambassador Sondland also attended, reported Ambassador Sondland’s description corruption agenda, Ukrainian officials re- ‘‘the very first question’’ that President of the President’s statements to the NSC sisted issuing the statement in August and, Zelensky asked Vice President Pence related lawyers.188 as a result, there was no movement toward to the status of U.S. security assistance.174 116. The next day, September 8, Ambas- scheduling the White House meeting.161 President Zelensky emphasized that ‘‘the sador Sondland confirmed in a phone call 100. Meanwhile, there was growing concern symbolic value of U.S. support in terms of with Ambassador Taylor that he had spoken about President Trump’s continued hold on security assistance . . . was just as valuable to President Trump and that ‘‘President the security assistance for Ukraine. The hold to the Ukrainians as the actual dollars.’’ 175 Trump was adamant that President Zelensky remained in place through August, against He also voiced concern that ‘‘any hold or ap- himself had to’’ announce the investigations the unanimous judgment of American na- pearance of reconsideration of such assist- publicly.189 tional security officials charged with over- ance might embolden Russia to think that 117. Ambassador Sondland also told Am- seeing U.S.-Ukraine policy. For example, the United States was no longer committed bassador Taylor that he had passed Presi- during a high-level interagency meeting in to Ukraine.’’ 176 dent Trump’s message directly to President late July, officials unanimously advocated 108. Vice President Pence told President Zelensky and Mr. Yermak and had told them for releasing the hold—with the sole excep- Zelensky that he would speak with President that ‘‘although this was not a quid pro quo, tion of OMB, which was acting under ‘‘guid- Trump that evening. Although Vice Presi- if President Zelensky did not clear things up ance from the President and from Acting dent Pence did speak with President Trump, in public, we would be at a stalemate’’— Chief of Staff Mulvaney to freeze the assist- the President still did not lift the hold.177 meaning ‘‘Ukraine would not receive the 190 ance.’’ 162 But even officials within OMB had 109. Following the meeting between Vice much-needed military assistance.’’ internally recommended that the hold be re- President Pence and President Zelensky, 118. Early the next morning, on September 9, Ambassador Taylor texted Ambassadors moved because ‘‘assistance to Ukraine is Ambassador Sondland pulled aside President Sondland and Volker: ‘‘As I said on the consistent with [U.S.] national security Zelensky’s advisor, Mr. Yermak, to explain phone, I think it’s crazy to withhold security strategy,’’ provides the ‘‘benefit . . . of op- that ‘‘the resumption of U.S. aid would like- assistance for help with a political cam- posing Russian aggression,’’ and is backed by ly not occur until Ukraine took some kind of paign.’’ 191 163 action on [issuing a] public statement’’ ‘‘bipartisan support.’’ 119. The Ukrainians succumbed to the pres- 101. Without an explanation for the hold, 178 about the investigations. sure. In early September, President Zelensky and with President Trump already condi- 110. Immediately following that conversa- agreed to do a televised interview, during tioning a White House visit on the announce- tion, Ambassador Sondland walked over to which he would publicly announce the inves- ment of the investigations, it became in- Mr. Morrison, who had been standing across tigations. The Ukrainians made arrange- the room observing their interactions. Am- creasingly apparent to multiple witnesses ments for the interview to occur on CNN that the security assistance was being with- bassador Sondland told Mr. Morrison that later in September.192 held in order to pressure Ukraine to an- ‘‘what he had communicated [to Mr. 120. The White House subsequently con- nounce the investigations. As Ambassador Yermak] was that . . . what could help firmed that the release of the security assist- Sondland testified, President Trump’s effort [Ukraine] move the aid was if the prosecutor ance had been conditioned on Ukraine’s an- to condition release of the security assist- general would go to the mike [sic] and announcement of the investigations. During a ance on an announcement of the investiga- nounce that he was opening’’ the White House press conference on October 17, tions was as clear as ‘‘two plus two equals investigations.179 Acting Chief of Staff Mulvaney acknowl- four.’’ 164 111. Later that day, Mr. Morrison reported edged that he had discussed security assist- 102. On August 22, Ambassador Sondland this conversation to Ambassador Bolton, ance with the President and that the Presi- emailed Secretary Pompeo in an effort to who advised him to ‘‘stay out of it’’ and to dent’s decision to withhold it was directly ‘‘break the logjam’’ on the security assist- brief the NSC’s lawyers. Mr. Morrison subse- tied to his desire that Ukraine investigate ance and the White House meeting. He pro- quently reported the conversation to Mr. alleged Ukrainian interference in the 2016 180 posed that President Trump should arrange Eisenberg. U.S. election.193 to speak to President Zelensky during an up- 112. Mr. Morrison also informed Ambas- 121. After a reporter attempted to clarify coming trip to Warsaw, during which Presi- sador Taylor about his conversation with this explicit acknowledgement of a ‘‘quid pro dent Zelensky could ‘‘look [President Ambassador Sondland. Ambassador Taylor quo,’’ Mr. Mulvaney replied, ‘‘We do that all Trump] in the eye and tell him’’ he was pre- was ‘‘alarmed by what Mr. Morrison told the time with foreign policy.’’ He added, ‘‘I pared ‘‘to move forward publicly . . . on [him] about the Sondland-Yermak conversa- have news for everybody: get over it. There those issues of importance to Potus and to tion.’’ 181 He followed up by texting Ambas- is going to be political influence in foreign the U.S.’’—i.e., the announcement of the two sador Sondland, ‘‘Are we now saying that se- policy.’’ 194 investigations.165 curity assistance and WH meeting are condi- 122. Multiple foreign policy and national 103. On August 28, news of the hold was tioned on investigations?’’ Ambassador security officials testified that the pursuit of publicly reported by Politico.166 Sondland responded, ‘‘Call me.’’ 182 investigations into the Bidens and alleged 104. As soon as the hold became public, 113. Ambassadors Sondland and Taylor Ukrainian interference in the 2016 election Ukrainian officials expressed significant con- then spoke by telephone. Ambassador was not part of official U.S. policy.195 In- cern to U.S. officials.167 They were deeply Sondland again relayed what he told Mr. stead, as Dr. Hill described, these investiga- worried not only about the practical impact Yermak and explained that he had made a tions were part of a ‘‘domestic political er- that the hold would have on efforts to fight ‘‘mistake’’ in telling Ukrainian officials that rand’’ of President Trump.196 Mr. Kent fur- Russian aggression, but also about the sym- only the White House meeting was condi- ther explained that urging Ukraine to en- bolic message the now-publicized lack of sup- tioned on a public announcement of the in- gage in ‘‘selective politically associated in- port from the Trump Administration sent to vestigations. He clarified that ‘‘every- vestigations or prosecutions’’ undermines the Russian government, which would al- thing’’—the White House meeting and secu- our longstanding efforts to promote the rule most certainly seek to exploit any real or rity assistance for Ukraine—was conditioned of law abroad.197 perceived crack in U.S. resolve toward on the announcement of the investiga- 123. Ambassador Volker, in response to an Ukraine. Mr. Yermak and other Ukrainian tions.183 Ambassador Sondland explained to inquiry from President Zelensky’s advisor, officials told Ambassador Taylor that they Ambassador Taylor that ‘‘President Trump Mr. Yermak, confirmed that the U.S. Depart- were ‘‘desperate’’ and would be willing to wanted President Zelensky in a public box, ment of Justice (DOJ) did not make an offi- travel to Washington to raise with U.S. offi- by making a public statement about order- cial request for Ukraine’s assistance in these cials the importance of the assistance.168 The ing such investigations.’’ 184 investigations.198

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00018 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.113 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S305 124. Within hours after the White House been no discernible changes in international ference in the 2016 election. He told report- publicly released a record of the July 25 call, assistance commitments for Ukraine or ers: DOJ itself confirmed in a statement that no Ukrainian anti-corruption reforms.211 What I want to do—and I think I have an such request was ever made: 132. Because of the hold the President obligation to do it, probably a duty to do it: The President has not spoken with the At- placed on security assistance for Ukraine, corruption—we are looking for corruption. torney General about having Ukraine inves- DOD was unable to spend approximately $35 When you look at what Biden and his son tigate anything related to former Vice Presi- million—or 14 percent—of the funds appro- did, and when you look at other people— dent Biden or his son. The President has not priated by Congress for fiscal year 2019.212 what they’ve done. And I believe there was asked the Attorney General to contact 133. Congress was forced to pass a new law tremendous corruption with Biden, but I Ukraine—on this or any other matter. The to extend the funding in order to ensure the think there was beyond—I mean, beyond cor- Attorney General has not communicated full amount could be used by Ukraine to de- ruption—having to do with the 2016 cam- with Ukraine—on this or any other sub- fend itself.213 Still, by early December 2019, paign, and what these lowlifes did to so ject.199 Ukraine had not received approximately $20 many people, to hurt so many people in the G. President Trump Was Forced to Lift the million of the military assistance.214 Trump campaign—which was successful, de- Hold but Has Continued to Solicit Foreign 134. Although the hold was lifted, the spite all of the fighting us. I mean, despite Interference in the Upcoming Election White House still had not announced a date all of the unfairness.229 for President Zelensky’s meeting with Presi- When asked by a reporter, ‘‘Is someone ad- 125. As noted above, by early September dent Trump, and there were indications that vising you that it is okay to solicit the help 2019, President Zelensky had signaled his President Zelensky’s interview with CNN of other governments to investigate a poten- willingness to announce the two investiga- would still occur.215 tions to secure a White House meeting and 135. On September 18, a week before Presi- tial political opponent?,’’ Trump replied in the security assistance. He was scheduled to dent Trump was scheduled to meet with part, ‘‘Here’s what’s okay: If we feel there’s make the announcement during a CNN inter- President Zelensky on the sidelines of the corruption, like I feel there was in the 2016 view later in September, but other events in- U.N. General Assembly in New York, Vice campaign—there was tremendous corruption 200 tervened. President Pence had a telephone call with against me—if we feel there’s corruption, we 230 126. On September 9, the House Permanent President Zelensky. During the call, Vice have a right to go to a foreign country.’’ Select Committee on Intelligence, the Com- President Pence ‘‘ask[ed] a bit more about 144. As the House’s impeachment inquiry mittee on Oversight and Reform, and the . . . how Zelensky’s efforts were going.’’ 216 unfolded, Mr. Giuliani, on behalf of the Committee on Foreign Affairs announced a Additional details about this call were pro- President, also continued to urge Ukraine to joint investigation into the scheme by Presi- vided to the House by Vice President Pence’s pursue the investigations and dig up dirt on dent Trump ‘‘to improperly pressure the advisor, Jennifer Williams, but were classi- former Vice President Biden. Mr. Giuliani’s Ukrainian government to assist the Presi- fied by the Office of the Vice President.217 own statements about these efforts further 201 dent’s bid for reelection.’’ The same day, Despite repeated requests, the Vice Presi- confirm that he has been working in further- the Committees sent document production dent has refused to declassify Ms. Williams’ ance of the President’s personal and political and preservation requests to the White supplemental testimony. interests.231 House and the State Department.202 136. On September 18 or 19, at the urging of 145. During the first week of December, Mr. 127. NSC staff members believed that the Ambassador Taylor,218 President Zelensky Giuliani traveled to Kyiv and Budapest to Congressional investigation ‘‘might have the cancelled the CNN interview.219 meet with both current and former Ukrain- effect of releasing the hold’’ on Ukraine mili- 137. To date, almost nine months after the ian government officials,232 including a cur- tary assistance, because it would have been initial invitation was extended by President rent Ukrainian member of Parliament who ‘‘potentially politically challenging’’ to Trump on April 21, a White House meeting attended a KGB school in Moscow and has ‘‘justify that hold.’’ 203 for President Zelensky has not occurred.220 led calls to investigate Burisma and the 128. Later that day, the Inspector General Since the initial invitation, President Bidens.233 Mr. Giuliani also met with the cor- of the Intelligence Community (ICIG) wrote Trump has met with more than a dozen rupt former prosecutor generals, Viktor to the Chairman and Ranking Member of the world leaders at the White House, including Shokin and Yuriy Lutsenko, who had pro- Intelligence Committee notifying them that a meeting in the Oval Office with the For- moted the false allegations underlying the a whistleblower had filed a complaint on Au- eign Minister of Russia on December 10.221 investigations President Trump wanted.234 gust 12 that the ICIG had determined to be 138. Since lifting the hold, and even after Mr. Giuliani told the New York Times that in both an ‘‘urgent concern’’ and ‘‘credible.’’ the House impeachment inquiry was an- meeting with Ukrainian officials he was act- The ICIG did not disclose the contents of the nounced on September 24, President Trump ing on behalf of his client, President Trump: 204 complaint. has continued to press Ukraine to inves- ‘‘[L]ike a good lawyer, I am gathering evi- 129. The ICIG further stated that the Act- tigate Vice President Biden and alleged 2016 dence to defend my client against the false ing Director of National Intelligence (DNI) election interference by Ukraine.222 charges being leveled against him.’’ 235 had taken the unprecedented step of with- 139. On September 24, in remarks at the 146. During his trip to Ukraine, on Decem- holding the whistleblower complaint from opening session of the U.N. General Assem- ber 5, Mr. Giuliani tweeted: ‘‘The conversa- Congress.205 It was later revealed that the bly, President Trump stated: ‘‘What Joe tion about corruption in Ukraine was based Acting DNI had done so as a result of com- Biden did for his son, that’s something they on compelling evidence of criminal conduct munications with the White House and the 223 [Ukraine] should be looking at.’’ by then VP Biden, in 2016, that has not been Department of Justice.206 The next day, Sep- 140. On September 25, in a joint public resolved and until it is will be a major obsta- tember 10, Chairman Schiff wrote to Acting press availability with President Zelensky, cle to the U.S. assisting Ukraine with its DNI Joseph Maguire to express his concern President Trump stated that ‘‘I want him to anti-corruption reforms.’’ 236 Not only was about the Acting DNI’s ‘‘unprecedented de- do whatever he can’’ in reference to the in- Mr. Giuliani perpetuating the false allega- parture from past practice’’ in withholding 224 vestigation of the Bidens. The same day, tions against Vice President Biden, but he the whistleblower complaint and observed President Trump denied that his pursuit of was reiterating the threat that President that the ‘‘failure to transmit to the Com- 225 the investigation involved a quid pro quo. Trump had used to pressure President mittee an urgent and credible whistleblower 141. On September 30, during remarks at Zelensky to announce the investigations: complaint, as required by law, raises the the swearing-in of the new Labor Secretary, that U.S. assistance to Ukraine could be in prospect that an urgent matter of a serious President Trump stated: ‘‘Now, the new jeopardy until Ukraine investigated Vice nature is being purposefully concealed from President of Ukraine ran on the basis of no President Biden. the Committee.’’ 207 corruption.... But there was a lot of cor- 130. The White House was aware of the con- ruption having to do with the 2016 election 147. Mr. Giuliani told the Wall Street Jour- tents of the whistleblower complaint since at against us. And we want to get to the bottom nal that when he returned to New York on December 7, President Trump called him as least August 26, when the Acting DNI in- of it, and it’s very important that we do.’’ 226 formed the White House Counsel’s Office of 142. On October 3, when asked by a reporter his plane was still taxiing down the runway. the complaint.208 White House Counsel Pat what he had hoped President Zelensky would ‘‘ ‘What did you get?’ he said Mr. Trump Cipollone and Mr. Eisenberg reportedly do following their July 25 call, President asked. ‘More than you can imagine,’ Mr. 237 briefed President Trump on the whistle- Trump responded: ‘‘Well, I would think that, Giuliani replied.’’ blower complaint in late August and dis- if they were honest about it, they’d start a 148. Later that day, President Trump told cussed whether they had to give it to Con- major investigation into the Bidens. It’s a reporters that he was aware of Mr. Giuliani’s gress.209 very simple answer.’’ 227 The President also efforts in Ukraine and believed that Mr. 131. On September 11—two days after the suggested that ‘‘China should start an inves- Giuliani wanted to report the information ICIG notified Congress of the whistleblower tigation into the Bidens, because what hap- he’d gathered to the Attorney General and complaint and the three House Committees pened in China is just about as bad as what Congress.238 announced their investigation—President happened with—with Ukraine.228 149. On December 17, Mr. Giuliani con- Trump lifted the hold on security assistance. 143. On October 4, President Trump equat- firmed that President Trump has been ‘‘very As with the implementation of the hold, no ed his interest in ‘‘looking for corruption’’ to supportive’’ of his continuing efforts to dig credible reason was provided for lifting the the investigation of two particular subjects: up dirt on Vice President Biden in Ukraine hold.210 At the time of the release, there had the Bidens and alleged Ukrainian inter- and that they are ‘‘on the same page.’’ 239

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00019 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.114 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S306 CONGRESSIONAL RECORD — SENATE January 21, 2020 150. Such ongoing efforts by President opponent, the President responded, ‘‘I think ing all the subpoenas,’’ 267 and ‘‘I have an Ar- Trump, including through his personal attor- I’d take it.’’ 253 President Trump declared ticle II, where I have the right to do what- ney, to solicit an investigation of his polit- that he sees ‘‘nothing wrong with listening’’ ever I want as president.’’ 268 ical opponent have undermined U.S. credi- to a foreign power that offers information 165. In response to the House impeachment bility. On September 14, Ambassador Volker detrimental to a political adversary.254 inquiry regarding Ukraine, the Executive advised Mr. Yermak against the Zelensky Asked whether such an offer of information Branch categorically refused to provide any Administration conducting an investigation should be reported to law enforcement, requested documents or information at into President Zelensky’s own former polit- President Trump retorted: ‘‘Give me a break, President Trump’s direction. ical rival, former Ukrainian President Petro life doesn’t work that way.’’ 255 Just weeks 166. On September 9, 2019, three House Poroshenko. When Ambassador Volker later, President Trump froze security assist- Committees sent a letter to White House raised concerns about such an investigation, ance to Ukraine as his agents were pushing Counsel Pat Cipollone requesting six cat- Mr. Yermak retorted, ‘‘What, you mean like that country to pursue investigations that egories of documents relevant to the Ukraine asking us to investigate Clinton and would help the President’s reelection cam- investigation by September 16.269 When the Biden?’’ 240 Ambassador Volker offered no re- paign.256 White House did not respond, the Commit- sponse.241 157. In addition, President Trump’s request tees sent a follow-up letter on September 151. Mr. Holmes, a career diplomat, high- for the investigations on the July 25 call 24.270 lighted this hypocrisy: ‘‘While we had ad- with President Zelensky took place one day 167. Instead of responding directly to the vised our Ukrainian counterparts to voice a after former Special Counsel Mueller testi- Committees, the President publicly declared commitment to following the rule of law and fied before the House Judiciary Committee the impeachment inquiry ‘‘a disgrace,’’ and generally investigating credible corruption and the House Permanent Select Committee stated that ‘‘it shouldn’t be allowed’’ and allegations,’’ U.S. officials were making ‘‘a on Intelligence about the findings of his in- that ‘‘[t]here should be a way of stopping demand that President Zelensky personally vestigation into Russia’s interference in the it.’’ 271 commit on a cable news channel to a specific 2016 Presidential election and President 168. When the White House still did not re- investigation of President Trump’s political Trump’s efforts to undermine that investiga- spond to the Committees’ request, the Com- rival.’’ 242 tion.257 During his call with President mittees issued a subpoena compelling the White House to turn over documents.272 H. President Trump’s Conduct Was Con- Zelensky, President Trump derided former 169. The President’s response to the sistent with His Previous Invitations of Special Counsel Mueller’s ‘‘poor perform- House’s inquiry—sent by Mr. Cipollone on Foreign Interference in U.S. Elections ance’’ in his July 24 testimony and specu- October 8 sought to accomplish the Presi- 152. President Trump’s efforts to solicit lated that ‘‘that whole nonsense . . . started with Ukraine.’’ 258 dent’s goal of ‘‘stopping’’ the House’s inves- Ukraine’s interference in the 2020 U.S. Presi- tigation. Mr. Cipollone wrote ‘‘on behalf of dential election to help his own reelection II. President Trump’s Obstruction of Congress President Donald J. Trump’’ to notify Con- campaign were consistent with his prior so- 158. President Trump ordered categorical gress that ‘‘President Trump cannot permit licitation and encouragement of Russia’s in- obstruction of the impeachment inquiry un- his Administration to participate in this par- terference in the 2016 election, when the dertaken by the House under Article I of the tisan inquiry under these circumstances.’’ 273 Trump Campaign ‘‘expected it would benefit Constitution, which vests the House with the 170. Despite the Constitution’s placement electorally from information stolen and re- ‘‘sole Power of Impeachment.’’ 259 of the ‘‘sole Power’’ of impeachment in the leased through Russian efforts.’’ 243 A. The House Launched an Impeachment House, Mr. Cipollone’s October 8 letter 153. As a Presidential candidate, Mr. Inquiry opined that the House’s inquiry was ‘‘con- Trump repeatedly sought to benefit from 159. During the 116th Congress, a number of stitutionally invalid,’’ ‘‘lack[ed] . . . any Russia’s actions to help his campaign. For Committees of the House have undertaken basis,’’ ‘‘lack[ed] the necessary authorization example, during a public rally on July 27, investigations into allegations of mis- for a valid impeachment,’’ and was merely 2016, then-candidate Trump declared: ‘‘Rus- conduct by President Trump and his Admin- ‘‘labeled . . . as an ‘impeachment in- sia, if you’re listening, I hope you’re able to 274 istration, including to determine whether to quiry.’ ’’ find the 30,000 emails that are missing’’ from recommend articles of impeachment.260 171. The letter’s rhetoric aligned with the opposing candidate Hillary Clinton’s per- 160. As discussed above, on September 9, President’s public campaign against the im- sonal server.244 Within hours, Russian hack- the Intelligence Committee and the Commit- peachment inquiry, which he has branded ‘‘a ers targeted Clinton’s personal office for the tees on Oversight and Reform and Foreign COUP, intended to take away the Power of first time.245 275 Affairs announced they would conduct a the People,’’ an ‘‘unconstitutional abuse 154. Days earlier, WikiLeaks had begun re- 276 joint investigation into the President’s of power,’’ and an ‘‘open war on American leasing emails and documents that were sto- 277 scheme to pressure Ukraine to announce the Democracy.’’ len by Russian military intelligence services 172. Although President Trump has cat- politically motivated investigations.261 in order to damage the Clinton campaign.246 161. Given the gravity of the allegations egorically sought to obstruct the House’s im- WikiLeaks continued releasing stolen docu- that President Trump was soliciting foreign peachment inquiry, he has never formally as- ments through October 2016.247 Then-can- interference in the upcoming 2020 election, serted a claim of executive privilege as to didate Trump repeatedly applauded and Speaker Nancy P. Pelosi announced on Sep- any document or testimony. Mr. Cipollone’s sought to capitalize on WikiLeaks’s releases tember 24 that the House was ‘‘moving for- October 8 letter refers to ‘‘long-established of these stolen documents, even after Rus- ward with an official impeachment in- Executive Branch confidentiality interests sia’s involvement was heavily reported by and privileges’’ but the President did not ac- quiry.’’ 262 Speaker Pelosi directed the Com- the press.248 Members of the Trump Cam- 278 mittees to ‘‘proceed with their investiga- tually assert executive privilege. Simi- paign also planned messaging and commu- tions under that umbrella of [an] impeach- larly, a Department of Justice Office of nications strategies around releases by Legal Counsel November 1, 2019 opinion only ment inquiry.’’ 263 WikiLeaks.249 In the last month of the cam- 162. On October 31, the House enacted a res- recognized that information responsive to paign, then-candidate Trump publicly re- olution confirming the Committees’ author- the subpoenas was ‘‘potentially protected by ferred to the emails hacked by Russia and 279 ity to conduct the impeachment inquiry and executive privilege.’’ disseminated by WikiLeaks over 150 times.250 173. In addition, the President and his adopting procedures governing the in- 155. Multiple members of the Trump Cam- agents have spoken at length about these quiry.264 paign used additional channels to seek Rus- events to the press and on social media. 163. The procedures adopted by the House sia’s assistance in obtaining damaging infor- Since the impeachment inquiry was an- afforded procedural privileges to the Presi- mation about Clinton. For example, senior nounced on September 24, the President has dent that were equivalent to, or in some in- representatives of the Trump Campaign—in- made numerous public statements about his stances exceeded, those afforded during prior cluding the Campaign’s chairman and the communications with President Zelensky impeachment inquiries.265 Transcripts of all President’s son—met with a Russian attor- and his decision-making relating to the hold witness interviews and depositions were re- ney in June 2016 who had offered to provide on security assistance.280 leased to the public, and President Trump damaging information about Clinton from 174. The President’s agents have done the was offered—but refused—multiple opportu- the Russian government.251 A foreign policy same. For example, on October 16, Secretary nities to have his counsel participate in pro- advisor to the Trump Campaign also met re- Perry gave an interview to the Wall Street ceedings before the Judiciary Committee, in- peatedly with people connected to the Rus- Journal. During the interview, Secretary cluding by cross-examining witnesses and sian government and their associates, one of Perry stated that after the May 23 meeting presenting evidence.266 whom claimed to have ‘‘dirt’’ on Clinton in at which President Trump refused to sched- the form of ‘‘thousands of emails.’’ 252 B. President Trump Ordered Categorical Ob- ule a White House meeting with President 156. Even after Special Counsel Mueller re- struction of the House’s Impeachment In- Zelensky, Secretary Perry ‘‘sought out Rudy leased his report, President Trump con- quiry Giuliani this spring at President Trump’s di- firmed his willingness to benefit from for- 164. Even before the House launched its im- rection to address Mr. Trump’s concerns eign election interference. When asked dur- peachment inquiry into President Trump’s about alleged Ukrainian corruption.’’ 281 Dur- ing a televised interview in June 2019 wheth- misconduct concerning Ukraine, he rejected ing a phone call with Secretary Perry, Mr. er he would accept damaging information Congress’s Article I investigative and over- Giuliani said, ‘‘Look, the president is really from a foreign government about a political sight authority, proclaiming, ‘‘[W]e’re fight- concerned that there are people in Ukraine

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00020 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.115 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S307 that tried to beat him during this presi- gress that were directly relevant to the im- nesses.315 President Trump has since in- dential election.... He thinks they’re cor- peachment inquiry.297 structed McGahn to defy a House Commit- rupt and . . . that there are still people over 185. Some responsive documents have been tee’s subpoena for testimony, and his DOJ there engaged that are absolutely cor- released by the State Department, DOD, and has erroneously argued that the courts can rupt.’’ 282 OMB pursuant to judicial orders issued in re- play no role in enforcing Congressional sub- 175. On October 17, Acting Chief of Staff sponse to lawsuits filed under the Freedom poenas.316 Mulvaney acknowledged during a White of Information Act (FOIA).298 Although lim- 193. Special Counsel Mueller’s investiga- House press conference that he discussed se- ited in scope and heavily redacted, these tion—like the House’s impeachment in- curity assistance with the President and FOIA productions confirm that the Trump quiry—sought to uncover whether President that the President’s decision to withhold it Administration is withholding highly perti- Trump coordinated with a foreign govern- was directly tied to his desire that Ukraine nent documents from Congress without any ment in order to obtain an improper advan- investigate alleged Ukrainian interference in valid legal basis.299 tage during a Presidential election.317 And the 2016 U.S. election.283 D. President Trump Ordered Top Aides Not the Mueller investigation—like the House’s 176. On December 3, 2019, the Intelligence to Testify, Even Pursuant to Subpoena impeachment inquiry—exposed President Trump’s eagerness to benefit from foreign Committee transmitted a detailed nearly 186. President Trump directed government election interference.318 In the former in- 300-page report documenting its findings witnesses to violate their legal obligations about this scheme and about the related instance, the President used his powers of of- and defy House subpoenas—regardless of fice to undermine an investigation con- vestigation into it, to the Judiciary Com- their offices or positions. In some instances, mittee.284 The Judiciary Committee held ducted by officials within the Executive the President personally directed that senior Branch.319 In the latter, he attempted to public hearings evaluating the constitu- aides defy subpoenas on the ground that they tional standard for impeachment and the block the United States House of Represent- are ‘‘absolutely immune’’ from compelled atives from exercising its ‘‘sole Power of Im- evidence against President Trump—in which testimony.300 Other officials refused to ap- the President’s counsel was invited to par- peachment’’ assigned by the Constitution. In pear ‘‘as directed by’’ Mr. Cipollone’s Octo- both instances, President Trump obstructed ticipate, but declined—and then reported two ber 8 letter.301 Still others refused to appear 285 investigations into foreign election inter- Articles of Impeachment to the House. because—consistent with the House Deposi- 177. The President maintained his obstruc- ference to hide his own misconduct. tion Rules drafted by the then-majority Re- 1. See Report of the H. Permanent Select tionist position throughout this process, de- publicans—agency counsel was not permitted claring the House’s investigation ‘‘illegit- Comm. on Intelligence on the Trump-Ukraine in the depositions.302 Impeachment Inquiry, together with Minority imate’’ in a letter to Speaker Nancy Pelosi 187. This Administration-wide effort to pre- Views, H. Rep. No. 116–335 (2019); Impeachment on December 17, 2019.286 President Trump fur- vent witnesses from providing testimony was of Donald J. Trump, President of the United ther attempted to undermine the House’s in- coordinated and comprehensive. In total, States: Report of the Comm. on the Judiciary of quiry by dismissing impeachment as ‘‘ille- twelve current or former Administration of- the H. of Representatives, together with Dis- gal, invalid, and unconstitutional’’ 287 and by ficials refused to testify as part of the senting Views, to Accompany H. Res. 755, H. intimidating and threatening an anonymous House’s impeachment inquiry into the Rep. No. 116–346 (2019). Intelligence Community whistleblower as Ukrainian matter, nine of whom did so in de- 2. U.S. Const., Art. I, § 2, cl. 5. well as the patriotic public servants who fiance of duly authorized subpoenas.303 House 3. Transcript, Deposition of Lt. Colonel honored their subpoenas and testified before Committees advised such witnesses that Alexander S. Vindman Before the H. Perma- the House.288 their refusal to testify may be used as an ad- nent Select Comm. on Intelligence 16 (Oct. 178. On December 18, 2019, the House voted verse inference against the President.304 29, 2019) (Vindman Dep. Tr.); Anton to impeach President Trump and adopted Nonetheless—despite being instructed by Troianovski, Comedian Volodymyr Zelensky two Articles of Impeachment.289 senior political appointees not to cooperate Unseats Incumbent in Ukraine’s Presidential C. Following President Trump’s Directive, with the House’s impeachment inquiry, in di- Election, Exit Polls Show, Wash. Post (Apr. 21, the Executive Branch Refused to Produce rectives that frequently cited or enclosed 2019), https://perma.cc/J8KE-2UJU. Requested and Subpoenaed Documents copies of Mr. Cipollone’s October 8 letter 305— 4. Id. 179. Adhering to President Trump’s direc- many current and former officials complied 5. See White House, Memorandum of Tele- phone Conversation (Apr. 21, 2019) (Apr. 21 tive, every Executive Branch agency that re- with their legal obligations to appear for tes- Memorandum), https://perma.cc/EY4N-B8VS; ceived an impeachment inquiry request or timony. Deb Riechmann et al., Conflicting White subpoena defied it.290 188. House Committees conducted deposi- House Accounts of 1st Trump-Zelenskiy Call, 180. House Committees issued document re- tions or transcribed interviews of seventeen 306 Associated Press (Nov. 15, 2019), https:// quests or subpoenas to the White House, the witnesses. All members of the Commit- perma.cc/A6U9-89ZG. Office of the Vice President, OMB, the De- tees—as well as staff from the Majority and the Minority—were permitted to attend. The 6. Apr. 21 Memorandum at 2, https:// partment of State, DOD, and the Department perma.cc/EY4N-B8VS. 291 Majority and Minority were allotted an of Energy. 7. Transcript, Impeachment Inquiry: Ambas- equal amount of time to question wit- 181. In its response, the Office of the Vice sador William B. Taylor and George Kent: Hear- President echoed Mr. Cipollone’s assertions nesses.307 189. In late November 2019, twelve of these ing Before the H.Permanent Select Comm. on that the impeachment inquiry was proce- Intelligence, 116th Cong. 40 (Nov. 13, 2019) durally invalid,292 while agencies such as witnesses testified in public hearings convened by the Intelligence Committee, includ- (Taylor-Kent Hearing Tr.). OMB and DOD expressly cited the Presi- 8. See, e.g., Transcript, Interview of Kurt 293 ing three witnesses called by the Minority.308 dent’s directive. Volker Before the H. Permanent Select 182. The Executive Branch has refused to 190. Unable to silence certain witnesses, President Trump resorted to intimidation Comm. on Intelligence 58–59 (Oct. 3, 2019) produce any documents in response to the (Volker Interview Tr.); Transcript, Interview Committees’ valid, legally binding sub- tactics to penalize them.309 He also levied sustained attacks on the anonymous whistle- of George Kent Before the H. Permanent Se- poenas, even though witness testimony has lect Comm. on Intelligence 202 (Oct. 15, 2019) blower.310 revealed that highly relevant records (Kent Dep. Tr.); Transcript, Deposition of exist.294 E. President Trump’s Conduct Was Con- Fiona Hill Before the H. Permanent Select 183. Indeed, by virtue of President Trump’s sistent with His Previous Efforts to Ob- Comm. on Intelligence 64–65 (Oct. 14, 2019) order, not a single document has been pro- struct Investigations into Foreign Inter- (Hill Dep. Tr.); see also Transcript, Deposi- duced by the White House, the Office of the ference in U.S. Elections tion of David A. Holmes Before the H. Per- Vice President, OMB, the Department of 191. President Trump’s obstruction of the manent Select Comm. on Intelligence 18 State, DOD, or the Department of Energy in House’s impeachment inquiry was consistent (Nov. 15, 2019) (Holmes Dep. Tr.) (‘‘[A] White response to 71 specific, individualized re- with his previous efforts to undermine Spe- House visit was critical to President quests or demands for records in their pos- cial Counsel Mueller’s investigation of Rus- Zelensky,’’ because ‘‘[h]e needed to dem- session, custody, or control. These agencies sia’s interference in the 2016 election and of onstrate U.S. support at the highest levels, and offices also blocked many current and the President’s own misconduct. both to advance his ambitious anti-corrup- former officials from producing records to 192. President Trump repeatedly used his tion agenda at home and to encourage Rus- the Committees.295 powers of office to undermine and derail the sian President Putin to take seriously Presi- 184. Certain witnesses, however, defied the Mueller investigation, particularly after dent Zelensky’s peace efforts.’’). President’s order and identified the sub- learning that he was personally under inves- 9. Transcript, Deposition of Jennifer Wil- stance of key documents. For example, Lt. tigation for obstruction of justice.311 Among liams Before the H. Permanent Select Col. Vindman described a ‘‘Presidential Deci- other things, President Trump ordered White Comm. on Intelligence 36–37 (Nov. 7, 2019) sion Memo’’ he prepared in August that con- House Counsel Don McGahn to fire Special (Williams Dep. Tr.). veyed the ‘‘consensus views’’ among foreign Counsel Mueller; 312 instructed Mr. McGahn 10. Matt Viser, Joe Biden to Enter 2020 Presi- policy and national security officials that to create a record and issue statements false- dential Race with Thursday Video Announce- the hold on aid to Ukraine should be rely denying this event; 313 sought to curtail ment, Wash. Post (Apr. 23, 2019), https:// leased.296 Other witnesses identified addi- Special Counsel Mueller’s investigation in a perma.cc/M2B9-6J48. tional documents that the President and var- manner exempting his own prior conduct; 314 11. Transcript, Impeachment Inquiry: Ambas- ious agencies were withholding from Con- and tampered with at least two key wit- sador Marie ‘‘Masha’’ Yovanovitch: Hearing

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00021 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.116 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S308 CONGRESSIONAL RECORD — SENATE January 21, 2020 Before the H. Permanent Select Comm. on Intel- 22. See Kent Dep. Tr. at 101–02. 40. Williams Dep. Tr. at 37; Volker Inter- ligence, 116th Cong. 21–22 (Nov. 15, 2019) 23. Office of the Dir. of Nat’l Intelligence, view Tr. at 288–90; Vindman Dep. Tr. at 125– (Yovanovitch Hearing Tr.); Transcript, Im- ICA 2017–01D, Assessing Russian Activities and 27. peachment Inquiry: Fiona Hill and David Intentions in Recent U.S. Elections (Jan. 6, 41. Volker Interview Tr. at 29–30, 304. Holmes: Hearing Before the H. Permanent Select 2017), https://perma.cc/M4A3-DWML; see, e.g., 42. Id. at 305. Comm. on Intelligence, 116th Cong. 18–19 (Nov. id. at ii (‘‘We assess Russian President Vladi- 43. Id. at 304; Transcript, Interview of Gor- 21, 2019) (Hill-Holmes Hearing Tr.); Holmes mir Putin ordered an influence campaign in don Sondland Before the H. Permanent Se- Dep. Tr. at 13–14, 142. 2016 aimed at the US presidential election. lect Comm. on Intelligence 337 (Oct. 17, 2019) 12. See, e.g., Taylor-Kent Hearing Tr. at 25; Russia’s goals were to undermine public (Sondland Dep. Tr.). Yovanovitch Hearing Tr. at 21–22; Hill- faith in the US democratic process, deni- 44. Sondland Dep. Tr. at 62, 69–70; Volker Holmes Hearing Tr. at 19–21. grate Secretary Clinton, and harm her Interview Tr. at 305; Transcript, Impeachment 13. See, e.g., Donald J. Trump electability and potential presidency. We Inquiry: Ambassador Kurt Volker and Timothy (@realDonaldTrump), Twitter (Mar. 20, 2019, further assess Putin and the Russian Govern- Morrison: Hearing Before the H. Permanent Se- 7:40 PM), https://perma.cc/D4UT-5M6F (ref- ment developed a clear preference for Presi- lect Comm. on Intelligence, 116th Cong. 39–40 erencing Sean Hannity’s interview with John dent-elect Trump. We have high confidence (Nov. 19, 2019) (Volker-Morrison Hearing Tr.). 45. Sondland Dep. Tr. at 90. Solomon regarding his opinion piece in The in these judgements.’’). 46. See id. at 77–78; Volker-Morrison Hear- 24. Senate Select Comm. on Intelligence, Hill titled As Russia Collusion Fades, Ukrain- ing Tr. at 17, 19; see also Timothy Puko & Re- Russian Active Measures Campaigns and Inter- ian Plot to Help Clinton Emerges (Mar. 20, becca Ballhaus, Rick Perry Called Rudy ference in the 2016 U.S. Election, Vol. II (May 2019), https://perma.cc/2M35-LUQE). Giuliani at Trump’s Direction on Ukraine Con- 14. Yovanovitch Hearing Tr. at 21–22, 34–35. 8, 2018), https://perma.cc/96EC-22RU; see, e.g., cerns, Wall Street J. (Oct. 16, 2019) (Rick Perry 15. Adam Entous, The Ukrainian Prosecutor id. at 4–5 (‘‘The Committee found that the Called Rudy Giuliani), https://perma.cc/E4F2- Behind Trump’s Impeachment, New Yorker [Russian-based Internet Research Agency 9U23.25. (Dec. 16, 2019), https://perma.cc/5XMR-BS8L (IRA)] sought to influence the 2016 U.S. pres- 47. Giuliani Plans Ukraine Trip, https:// (quoting Mr. Giuliani). idential election by harming Hillary Clin- perma.cc/SC6J-4PL9. 16. See White House, Memorandum of Tele- ton’s chances of success and supporting Don- 48. See, e.g., Transcript, Impeachment In- phone Conversation 4 (July 25, 2019) (July 25 ald Trump at the direction of the Krem- quiry: Ambassador Sondland: Hearing Before Memorandum), https://perma.cc/8JRD-6K9V; lin.... The Committee found that the Rus- the H. Permanent Select Comm. on Intelligence, Kyle Cheney, ‘‘Of Course I Did’’: Giuliani Ac- sian government tasked and supported the 116th Cong. 18 (Nov. 20, 2019) (Sondland Hear- knowledges Asking Ukraine to Investigate IRA’s interference in the 2016 U.S. elec- ing Tr.) (‘‘[A]s I testified previously . . . Mr. Biden, Politico (Sept. 19, 2019), https:// tion.’’). Giuliani’s requests were a quid pro quo for perma.cc/J7PY-N3SG. 25. Robert S. Mueller III, Report on the In- arranging a White House visit for President 17. July 25 Memorandum at 3, https:// vestigation into Russian Interference in the 2016 Zelensky’’); id. at 34, 42–43. perma.cc/8JRD-6K9V; see also Remarks by Presidential Election, Vol. I at 1 (2019) 49. Transcript, Deposition of William B. President Trump and President Putin of the (Mueller Report), https://perma.cc/DN3N- Taylor Before the H. Permanent Select Russian Federation in Joint Press Conference, 9UW8. Comm. on Intelligence (Oct. 22, 2019) (Taylor White House (July 16, 2018), https://perma.cc/ 26. Luke Barr & Alexander Mallin, FBI Di- Dep. Tr.). 6M5R-XW7F (‘‘[A]ll I can do is ask the ques- rector Pushes Back on Debunked Conspiracy 50. Taylor-Kent Hearing Tr. at 34–36. tion. My people came to me, Dan Coates Theory About 2016 Election Interference, ABC 51. Sondland Dep. Tr. at 240. came to me and some others—they said they News (Dec. 9, 2019), https://perma.cc/8JKC- 52. Hill Dep. Tr. at 127 (Dr. Hill, quoting think it’s Russia. I have President Putin; he 6RB8 (quoting Mr. Wray). Mr. Bolton). just said it’s not Russia. I will say this: I 27. Hill-Holmes Hearing Tr. at 40–41, 56–57. 53. See Taylor Dep. Tr. at 20, 23, 27–28, 31, don’t see any reason why it would be, but I 28. Press Statement, President of Russ., 33–34; Transcript, Deposition of Ambassador really do want to see the server.’’); Transcript Joint News Conference with Hungarian Marie ‘‘Masha’’ Yovanovitch Before the H. of AP Interview with Trump, Associated Press Prime Minister Viktor Orban (Feb. 2, 2017), Permanent Select Comm. on Intelligence 16, (Apr. 23, 2017), https://perma.cc/2EFT-84N8 https://perma.cc/5Z2R-ZECB (‘‘[A]s we all 18, 73, 302 (Oct. 11, 2019) (Yovanovitch Dep. (‘‘TRUMP: . . . Why wouldn’t (former Hil- know, during the presidential campaign in Tr.); see also Conflilct in Ukraine Enters Its lary Clinton campaign chairman John) Pode- the United States, the Ukrainian govern- Fourth Year with No End in Sight, Office of sta and Hillary Clinton allow the FBI to see ment adopted a unilateral position in favour the U.N. High Comm’r for Human Rights the server? They brought in another com- of one candidate. More than that, certain (June 13, 2017), https://perma.cc/K9N8-F22E. pany that I hear is Ukrainian-based. AP: oligarchs, certainly with the approval of the 54. Taylor-Kent Hearing Tr. at 28. 55. Volker Interview Tr. at 329; see CrowdStrike? TRUMP: That’s what I heard. I political leadership, funded this candidate, Yovanovitch Hearing Tr. at 17–18; Volker- heard it’s owned by a very rich Ukrainian, or female candidate, to be more precise.’’). Morrison Hearing Tr. at 11. that’s what I heard.’’). 29. See Kent Dep. Tr. at 338; @realDonaldTrump (May 3, 2019, 10:06 AM) 56. Transcript, Deposition of Catherine 18. See, e.g., Volker Interview Tr. at 203. Croft Before the H. Permanent Select Comm. 19. See, e.g., Press Release, Senator Rob https://perma.cc/7LS9-P35U. on Intelligence 16 (Oct. 30, 2019) (Croft Dep. Portman, Portman, Durbin, Shaheen, and 30. Hill Dep. Tr. at 234; see also id. at 235. Tr.). Senate Ukraine Caucus Reaffirm Commit- 31. Chris Francescani, President Trump’s Former National Security Advisor ‘‘Deeply Dis- 57. Kent Dep. Tr. at 338–39. ment to Help Ukraine Take on Corruption 58. Viacheslav Shramovych, Ukraine’s (Feb. 12, 2016), https://perma.cc/9WD2-CZ29 turbed’’ by Ukraine Scandal: ‘‘Whole World Is Watching,’’ ABC News (Sept. 29, 2019), https:// Deadliest Day: The Battle of Ilovaisk, August (quoting bipartisan letter urging then-Presi- 2014, BBC News (Aug. 29, 2019), https:// dent Poroshenko of Ukraine ‘‘to press ahead perma.cc/C76K-7SMA (quoting Mr. Bossert). 32. Full Video: Sean Hannity Interviews perma.cc/6B2F-B72W. with urgent reforms to the Prosecutor Gen- Trump on Biden, Russia Probe, FISA Abuse, 59. See Transcript, Deposition of Laura eral’s office and judiciary’’). Comey, Real Clear Politics (Apr. 26, 2019), Katherine Cooper Before the H. Permanent 20. See, e.g., Kent Dep. Tr. at 45, 91–94 (de- Select Comm. on Intelligence 16, 38, 98 (Oct. scribing ‘‘a broad-based consensus’’ among https://perma.cc/3CLR-9MVA. 33. Transcript: Fox News Interview with 23, 2019) (Cooper Dep. Tr.); Vindman Dep. Tr. the United States, European allies, and President Trump, Fox News (May 6, 2019), at 41, 57, 165; Transcript, Deposition of Mark international financial institutions that Mr. https://perma.cc/NST6-X7WS. Sandy Before the H. Permanent Select Shokin was ‘‘a typical Ukraine prosecutor 34. Kenneth P. Vogel, Rudy Giuliani Plans Comm. on Intelligence 59–60 (Nov. 16, 2019) who lived a lifestyle far in excess of his gov- Ukraine Trip to Push for Inquiries That Could (Sandy Dep. Tr.); Taylor-Kent Hearing Tr. at ernment salary, who never prosecuted any- Help Trump, N.Y. Times (May 9, 2019) 29–30; Taylor Dep. Tr. at 38, 40–41, 171, 217–18, body known for having committed a crime’’ (Giuliani Plans Ukraine Trip), https:// 281–82; Letter from Senators Jeanne Shaheen and who ‘‘covered up crimes that were perma.cc/SC6J-4PL9. et al. to Acting White House Chief of Staff known to have been committed.’’); Daryna 35. Id. (quoting Mr. Giuliani). Mick Mulvaney (Sept. 3, 2019) (Sept. 3 Let- Krasnolutska et al., Ukraine Prosecutor Says 36. Id. (quoting Mr. Giuliani). ter), https://perma.cc/4TU8-H7UR; Letter No Evidence of Wrongdoing by Bidens, 37. Lev Parnas Production to the House from Senator Christopher Murphy to Chair- Bloomberg (May 16, 2019), https://perma.cc/ Permanent Select Comm. on Intelligence at man Adam B. Schiff, House Permanent Se- YYX8-U33C (quoting Yuriy Lutsenko, 28 (Jan. 14, 2019), https://perma.cc/PWX4- lect Comm. on Intelligence, and Acting Ukraine’s then-Prosecutor General: ‘‘Hunter LEMS (letter from Rudolph Giuliani to Chairwoman Carolyn Maloney, House Comm. Biden did not violate any Ukrainian laws—at Volodymyr Zelensky, President-elect of on Oversight and Reform (Nov. 19, 2019) (Nov. least as of now, we do not see any wrong- Ukraine (May 10, 2019)). 19 Letter), https://perma.cc/4BDP-2SRJ. doing. A company can pay however much it 38. See Andrew Restuccia & Darren 60. Cory Welt, Cong. Research Serv., wants to its board . . . . Biden was definitely Samuelsohn, Giuliani Cancels Ukraine Trip R45008, Ukraine: Background, Conflict with not involved .... We do not have any amid Political Meddling Charges, Politico Russia, and U.S. Policy 30 (Sept. 19, 2019), grounds to think that there was any wrong- (May 11, 2019), https://perma.cc/V5S8-2FV4. https://perma.cc/4HCR-VKA5; see also Hill- doing starting from 2014 [when Hunter Biden 39. Giuliani: I Didn’t Go to Ukraine to Start Holmes Hearing Tr. at 97 (testimony of joined the board of Burisma].’’). an Investigation, There Already Was One, Fox David Holmes) (‘‘The United States has pro- 21. See Kent Dep. Tr. at 45, 93–94; Volker News (May 11, 2019), https://perma.cc/HT7V- vided combined civilian and military assist- Interview Tr. at 36–37, 330, 355. 2ZYA. ance to Ukraine since 2014 of about $3 billion,

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00022 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.118 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S309 plus two $1 billion—three $1 billion loan Military Aid Concerned Members of Congress for 100. See, e.g., Sandy Dep. Tr. at 133 (‘‘[W]ere guarantees. That is not—those get paid back Months, CNN (Sept. 30, 2019), https:// we ever given any reason for the hold? And I largely. So just over $3 billion.’’). perma.cc/5CHF-HFKJ; Sandy Dep. Tr. at 38– would say only in September did we receive 61. Taylor Dep. Tr. at 153. 39 (describing July 12 email from White an explanation that the hold—that the Presi- 62. Yovanovitch Hearing Tr. at 18. House to OMB stating ‘‘that the President is dent’s direction reflected his concerns about 63. Volker-Morrison Hearing Tr. at 11. directing a hold on military support funding the contributions from other countries for 64. Iain King, Not Contributing Enough? A for Ukraine.’’). Ukraine.’’); Cooper Dep. Tr. at 93–94; Summary of European Military and Develop- 81. See Sandy Dep. Tr. at 90; Hill Dep. Tr. Vindman Dep. Tr. at 181–82; Williams Dep. at ment Assistance to Ukraine Since 2014, Ctr. for at 225; Taylor-Kent Hearing Tr. at 35; 91–92. Strategic & Int’l Stud. (Sept. 26, 2019), Vindman Dep. Tr. at 181; Holmes Dep. Tr. at 101. Taylor Dep. Tr. at 24–25 (‘‘In late June, https://perma.cc/FF6F-Q9MX. 153–54. one of the goals of both channels was to fa- 65. EU-Ukraine Relations—Factsheet, Euro- 82. Taylor-Kent Hearing Tr. at 35; Hill Dep. cilitate a visit by President Zelensky to the pean External Action Serv. (Sept. 30, 2019), Tr. at 225. White House for a meeting with President https://perma.cc/4YKE-T2WT. 83. Email from Michael Duffey, Assoc. Dir. Trump, which President Trump had prom- 66. Id. for Nat’l Sec. Programs, Office of Mgmt. & ised in his congratulatory letter of May 29. 67. See EU Aid Explorer: Donors, European Budget, to David Norquist et al. (July 25, [The] Ukrainians were clearly eager for the Comm’n, https://perma.cc/79H6-AFHY. 2019, 11:04 AM), https://perma.cc/PG93-3M6B. meeting to happen. During a conference call 68. U.S. Foreign Aid by Country, USAID, 84. Id. with Ambassador Volker, Acting Assistant https://perma.cc/9YK2-9BKJ (last updated 85. Kent Dep. Tr. at 303, 307, 311; Taylor- Secretary of State for European and Eur- Sept. 23, 2019) (Ukraine data for fiscal year Kent Hearing Tr. at 36; Vindman Dep. Tr. at asian Affairs Phil Reeker, Secretary Perry, 2017 and fiscal year 2018). 182–85, Cooper Dep. Tr. at 45. Ambassador Sondland, and Counselor of the 69. Transcript, Impeachment Inquiry: Ms. 86. Kent Dep. Tr. at 303–305; Hale Dep. Tr. U.S. Department of State Ulrich Brechbuhl Laura Cooper and Mr. David Hale: Hearing Be- at 81. on June 18, it was clear that a meeting before the H. Permanent Select Comm. on Intel- 87. Croft Dep. Tr. at 15; Hale Dep. Tr. at tween the two presidents was an agreed-on— ligence, 116th Cong. 22–23 (Nov. 20, 2019) (Coo- 105; Holmes Dep. Tr. at 21; Kent Dep. Tr. at agreed-upon goal.’’). per-Hale Hearing Tr.); Cooper Dep. Tr. at 95– 304, 310; Cooper Dep. Tr. at 44–45; Sandy Dep. 102. Volker Interview Tr. at 59, 328. 96. Tr. at 91, 97; Morrison Dep. Tr. at 162–63. Mr. 103. Id. 70. Department of Defense and Labor, Morrison testified that, during a Deputies 104. Taylor Dep. Tr. at 26. Health and Human Services, and Education Committee meeting on July 26, OMB stated 105. Sondland Hearing Tr. at 26. Appropriations Act, 2019 and Continuing Ap- that the ‘‘President was concerned about 106. Id. at 43. propriations Act, 2019, Pub. L. No. 115–245, corruption in Ukraine, and he wanted to 107. Kurt Volker Text Messages Received § 9013 (2018); Consolidated Appropriations make sure that Ukraine was doing enough to by the House Committees at KV00000027 (Oct. Act, 2019, Pub. L. No. 116–6, § 7046(a)(2) (2019); manage that corruption.’’ Morrison Dep. Tr. 2, 2019) (Volker Text Messages), https:// Conference Report to Accompany H.J. Res. 31, at 165. Mr. Morrison did not testify that con- perma.cc/CG7Y-FHXZ. H. Rep. No. 116–9, at 869 (2019) (allocating cerns about Europe’s contributions were 108. Taylor Dep. Tr. at 65–66. $115,000,000 in assistance to Ukraine for the raised during this meeting. In addition, 109. Volker-Morrison Hearing Tr. at 70. Foreign Military Financing Program); Aaron Mark Sandy testified that, as of July 26, de- 110. Kent Dep. Tr. at 246–47. Mehta, U.S. State Department Clears Ukraine spite OMB’s own statement, senior OMB offi- 111. Hill Dep. Tr. at 67. Security Assistance Funding. Is the Pentagon cials were unaware of the reason for the hold 112. Id. at 69. Next?, Def. News (Sept. 12, 2019), https:// at that time. See Sandy Dep. Tr. at 55–56. 113. Vindman Dep. Tr. at 64. perma.cc/723T-9XUN (noting that approxi- 88. Sandy Dep. Tr. at 99; Vindman Dep. Tr. 114. Id. at 69–70; Vindman Dep. Tr. at 31; see mately $26 million rolled over from fiscal at 181–82; Kent Dep. Tr. at 305; Morrison Dep. Hill-Holmes Hearing Tr. at 92. year 2018). Tr. at 264. 115. Hill Dep. Tr. at 70–72. 71. Press Release, Dep’t of Def., DOD An- 89. Morrison Dep. Tr. at 163; Cooper Dep. 116. Id. at 139 (‘‘I told him exactly, you nounces $250M to Ukraine, (June 18, 2019) Tr. at 47–48. For example, Deputy Assistant know, what had transpired and that Ambas- (DOD Announces $250M to Ukraine), https:// Secretary of Defense Laura Cooper testified sador Sondland had basically indicated that perma.cc/U4HX-ZKXP. that, during an interagency meeting on July there was an agreement with the Chief of 72. Pub. L. No. 115–245, § 9013. 26 involving senior leadership from the State Staff that they would have a White House 73. DOD Announces $250M to Ukraine, Department and DOD and officials from the meeting or, you know, a Presidential meet- https://perma.cc/U4HX-ZKXP. DOD had cer- National Security Council, ‘‘immediately ing if the Ukrainians started up these inves- tified in May 2019 that Ukraine satisfied all deputies began to raise concerns about how tigations again.’’); Vindman Dep. Tr. at 37 anti-corruption standards needed to receive this could be done in a legal fashion’’ and (‘‘Sir, I think I—I mean, the top line I just the Congressionally appropriated military there ‘‘was a sense that there was not an offered, I’ll restate it, which is that Mr. aid. See Letter from John C. Rood, Under available mechanism to simply not spend Sondland asked for investigations, for these Sec’y of Def. for Pol’y, Dep’t of Def., to money’’ that already had been notified to investigations into Bidens and Burisma. I ac- Chairman Eliot L. Engel, House Comm. on Congress or earmarked for Ukraine. Cooper tually recall having that particular con- Foreign Affairs (May 23, 2019), https:// Dep. Tr. at 47–48. versation. Mr. Eisenberg doesn’t really work perma.cc/68FS-ZXZ6 (‘‘Ukraine has taken 90. Sandy Dep. Tr. at 42–43. on this issue, so I had to go a little bit into substantial actions to make defense institu- 91. Cooper-Hale Hearing Tr. at 75–76. the back story of what these investigations tional reforms for the purposes of decreasing 92. Cooper Dep. Tr. at 91. were, and that I expressed concerns and corruption. . . . [N]ow that this defense in- 93. Sondland Dep. Tr. at 338–39. thought it was inappropriate.’’). A third NSC stitution reform has occurred, we will use 94. Sandy Dep. Tr. at 149–55. official, P. Wells Griffith, also reported the the authority provided . . . to support pro- 95. Josh Dawsey et al., White House Review July 10 meeting to the NSC Legal Advisor, grams in Ukraine further.’’). Turns Up Emails Showing Extensive Efforts to but he refused to comply with a subpoena 74. Sandy Dep. Tr. at 24–25; Cooper Dep. Tr. Justify Trump’s Decision to Block Ukraine Mili- and did not testify before the House. at 33–34. tary Aid, Wash. Post (Nov. 24, 2019), https:// 117. Volker Text Messages at KV00000018. 75. Sandy Dep. Tr. at 24–28. perma.cc/99TX-5KFE. Because the President 118. See, e.g., id. at KV00000037; Ambassador 76. Eric Lipton et al., Behind the Ukraine obstructed the House’s investigation, the Gordon D. Sondland, Opening Statement Be- Aid Freeze: 84 Days of Conflict and Confusion, House was unable to obtain documents to fore the U.S. House of Representatives Perma- N.Y. Times (Dec. 29, 2019) (Behind the Ukraine confirm this reporting. nent Select Comm. on Intelligence 15 (Nov. 20, Aid Freeze), https://perma.cc/TA5J-NJFX. 96. See Sandy Dep. Tr. at 75; Kate Brannen, 2019) (Sondland Opening Statement), https:// 77. See, e.g., Cooper Dep. Tr. at 13, 16, 32, 46, Exclusive: Unredacted Ukraine Documents Re- perma.cc/Z2W6–A9HS (‘‘As I communicated 60–62, 64–65; Taylor Dep. Tr. at 28, 132, 170. veal Extent of Pentagon’s Legal Concerns, Just to the team, I told President Zelensky in ad- 78. See Nov. 19 Letter, https://perma.cc/ Security (Jan. 2, 2020) (Just Security Re- vance that assurances to run a fully trans- 4BDP-2SRJ; Sept. 3 Letter, https://perma.cc/ port), https://perma.cc/VA6U-RYPK (report- parent investigation and turn over every 4TU8-H7UR. ing about review of unredacted copies of stone were necessary in his call with Presi- 79. Williams Dep. Tr. at 54; Croft Dep. Tr. OMB documents that were produced to the dent Trump.’’). at 15; Kent Dep. Tr. at 303–305; Transcript, Center for Public Integrity in redacted 119. Volker Text Messages at KV00000037. Deposition of Ambassador David Maclain form). 120. Taylor-Kent Hearing Tr. at 37–38 (Am- Hale Before the H. Permanent Select Comm. 97. Matter of Office of Mgmt. & Budget— bassador Taylor quoting Ambassador on Intelligence 81 (Oct. 31, 2019) (Hale Dep. Withholding of Ukraine Sec. Assistance, B– Sondland). Tr.); Sandy Dep. Tr. at 99; Vindman Dep. Tr. 331564 (Comp. Gen. Jan. 16, 2020), https:// 121. Sondland Hearing Tr. at 27; Sondland at 181–82; Transcript, Deposition of Ambas- perma.cc/5CDX-XLX6. Opening Statement at 21, Ex. 4. sador Tim Morrison Before the H. Permanent 98. See Behind the Ukraine Aid Freeze, 122. Sondland Opening Statement at 21, Ex. Select Comm. on Intelligence 264 (Nov. 6, https://perma.cc/TA5J-NJFX. 4. 2019) (Morrison Dep. Tr.). 99. See Just Security Report, https:// 123. Sondland Hearing Tr. at 27. 80. Cooper-Hale Hearing Tr. at 14; Vindman perma.cc/VA6U-RYPK (quoting email from 124. Taylor Dep. Tr. at 30. Dep. Tr. at 178–79; see also Stalled Ukraine Michael Duffey to Elaine McCusker). 125. Volker Text Messages at KV00000037.

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00023 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.119 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S310 CONGRESSIONAL RECORD — SENATE January 21, 2020 126 See, e.g., id. at KV00000019; July 25 162. Hale Dep. Tr. at 81; Vindman Dep. Tr. Announce Trump’s ‘‘Quo’’ on My Show. Here’s Memorandum at 3–4, https://perma.cc/8JRD- at 184. What Happened., Wash. Post (Nov. 14, 2019) 6K9V. 163. Sandy Dep. Tr. at 59–60. (Zelensky Planned to Announce Trump’s 127. See, e.g., Washington Post–ABC News 164. Sondland Hearing Tr. at 56–58; see also ‘‘Quo’’), https://perma.cc/MMT7-D8XJ. Poll, June 28–July 1, 2019, Wash. Post (July 11, Taylor Dep. Tr. at 190 (Ambassador Taylor’s 193. Press Briefing by Acting Chief of Staff 2019), https://perma.cc/NS4B-PRWC. ‘‘clear understanding’’ was that ‘‘security as- Mick Mulvaney, White House (Oct. 17, 2019) 128. Sondland Hearing Tr. at 53–54. sistance money would not come until the (Oct. 17 Briefing), https://perma.cc/Q45H- 129. Volker Text Messages at KV00000019. [Ukrainian] President committed to pursue EMC7 (‘‘Q. So the demand for an investiga- 130. Sondland Hearing Tr. at 53–55. the investigation’’); Hill-Holmes Hearing Tr. tion into the Democrats was part of the rea- 131. See July 25 Memorandum at 2, https:// at 32 (Mr. Holmes’s ‘‘clear impression was son that he ordered to withhold funding to perma.cc/8JRD-6K9V. that the security assistance hold was likely Ukraine? MR. MULVANEY: The look back 132. Id. at 3–4. President Trump continues intended by the President either as an ex- to what happened in 2016—Q. The investiga- to embrace this call as both ‘‘routine’’ and pression of dissatisfaction with the Ukrain- tion into Democrats. MR. MULVANEY:—cer- ‘‘perfect.’’ See, e.g., Remarks by President ians, who had not yet agreed to the Burisma/ tainly was part of the thing that he was wor- Trump upon Arriving at the U.N. General As- Biden investigation, or as an effort to in- ried about in corruption with that nation. sembly, White House (Sept. 24, 2019) (Trump crease the pressure on them to do so.’’). And that is absolutely appropriate. Q. And Sept. 24 Remarks), https://perma.cc/ZQ4P- 165. Sondland Opening Statement at 23. withholding the funding? MR. MULVANEY: FGT4; Colby Itkowitz, Trump Defends Call 166. Caitlin Emma & Connor O’Brien, Yeah. Which ultimately, then, flowed.’’). with Ukrainian President, Calling It ‘‘Perfectly Trump Holds Up Ukraine Military Aid Meant to 194. Id. Fine and Routine,’’ Wash. Post (Sept. 21, Confront Russia, Politico (Aug. 28, 2019), 195. Volker-Morrison Hearing Tr. at 146–47 2019), https://perma.cc/T3ZM-GKLB. https://perma.cc/54RZ-Q6NJ.104. (Mr. Morrison did not follow up on the Presi- 133. See July 25 Memorandum at 4–5, 167. Volker Text Messages at KV00000020; dent’s request to ‘‘investigate the Bidens’’ https://perma.cc/8JRD-6K9V. Volker Interview Tr. at 80–81; Taylor Dep. because he ‘‘did not understand it as a policy 134. Id. at 4. Tr. at 34. objective’’); Vindman-Williams Hearing Tr. 135. Id. 168. Taylor Dep. Tr. at 137–38. at 119 (Mr. Vindman confirmed that he was 136. Id. at 3, 5. 169. Roman Olearchyk, Cleaning Up Ukraine not ‘‘aware of any written product’’ from the 137. See id. at 2. in the Shadow of Trump, Fin. Times (Nov. 28, NSC suggesting that these investigations 138. See generally id. Mr. Trump had pre- 2019), https://perma.cc/YMX9-XJ2B (quoting were ‘‘part of the official policy of the viously engaged in efforts to cut aid to anti- current Ukrainian Prosecutor General United States’’); Taylor-Kent Hearing Tr. at corruption programs in Ukraine and other Ruslan Ryaboshapka). 179 (‘‘Mrs. Demings[:] Was Mr. Giuliani pro- foreign nations. See Erica Werner, Trump Ad- 170. Behind the Ukraine Aid Freeze, https:// moting U.S. national interests or policy in ministration Sought Billions of Dollars in Cuts perma.cc/TA5J-NJFX. Ukraine . . . ? Ambassador Taylor[:] I don’t to Programs Aimed at Fighting Corruption in 171. Readout of Vice President Mike Pence’s think so, ma’am.... Mr. Kent[:] No, he was Ukraine and Elsewhere, Wash. Post (Oct. 23, Meeting with Ukrainian President Volodymyr not.’’). 2019), https://perma.cc/R9AJ-AZ65. Zelensky, White House (Sep. 1, 2019), https:// 196. Hill-Holmes Hearing Tr. at 92. 139. Transcript, Impeachment Inquiry: Ms. perma.cc/K2PH-YPVK; Taylor-Kent Hearing 197. Taylor-Kent Hearing Tr. at 24. Jennifer Williams and Lieutenant Colonel Alex- Tr. at 41. 198. Volker Interview Tr. at 197. ander Vindman: Hearing Before the H. Perma- 172. Sondland Hearing Tr. at 30. 199. Morgan Chalfant & Brett Samuels, nent Select Comm. on Intelligence, 116th Cong. 173. Id. at 38. White House Memo Shows Trump Pressed 19 (Nov. 19, 2019) (Vindman-Williams Hearing 174. Williams Dep. Tr. at 81. Ukraine Leader to Look into Biden, Hill (Sept. Tr.). 175. Id. at 82. 25, 2019), https://perma.cc/5LHW-V4EB 140. Id. at 34; Williams Dep. Tr. at 148–49. 176. Id. at 82–83. (quoting DOJ spokesperson Kerri Kupec). 141. Vindman-Williams Hearing Tr. at 15. 177. Id. at 94. 200. Taylor Dep. Tr. at 207–209; Taylor-Kent 142. Morrison Dep. Tr. at 41. 178. Sondland Hearing Tr. at 31. Hearing Tr. at 158 (‘‘[A]s we’ve determined, 143 Id. at 43. 179. Morrison Dep. Tr. at 134. as we’ve discussed here on September 11th, 144. Id. at 43, 47–50, 52; see also Vindman 180. Id. at 182–83. just before any CNN discussion or interview, Dep. Tr. at 49–51, 119–22. 181. Taylor-Kent Hearing Tr. at 42. the hold was released, the hold on the secu- 145. Holmes Dep. Tr. at 24. 182. Volker Text Messages at KV00000039. 146. Sondland Hearing Tr. at 26–27. rity assistance was released.’’ (quoting Am- 183. Taylor-Kent Hearing Tr. at 42. 147. Holmes Dep. Tr. at 25–26. bassador Taylor)). 184. Id.; see also Taylor Dep. Tr. at 144. 148. See, e.g., Cooper-Hale Hearing Tr. at 13– 201. Press Release, House Permanent Se- 185. In Ambassador Sondland’s testimony, 14; Vindman Dep. Tr. at 222; Sandy Dep. Tr. lect Comm. on Intelligence, Three House he was not clear on whether he had one or at 59–60. Committees Launch Wide-Ranging Inves- 149. Cooper-Hale Hearing Tr. at 13–14. two conversations with the President in tigation into Trump-Giuliani Ukraine 150. Croft Dep. Tr. at 86–88. which the subject of a quid pro quo came up, Scheme (Sept. 9, 2019) (Sept. 9 Press Release), 151. Vindman Dep. Tr. at 222. or on precisely which date such conversa- https://perma.cc/AX4Y-PWSH. 152. Andrew E. Kramer, Ukraine Knew of tions took place during the period of Sep- 202. Letter from Chairman Eliot L. Engel, Aid Freeze in July, Says Ex-Top Official in tember 6 through 9. Regardless of the date, House Comm. on Foreign Affairs, et al., to Kyiv, N.Y. Times (Dec. 3, 2019), https:// Ambassador Sondland did not contest telling Pat A. Cipollone, Counsel to the President 3– perma.cc/SD98-VPRN. both Mr. Morrison and Ambassador Taylor— 4 (Sept. 9, 2019) (Sept. 9 Letter), https:// 153. Id. (quoting Ms. Zerkal). both of whom took contemporaneous notes— perma.cc/R2GH-TZ9P; Letter from Chairman 154. Id. (quoting Ms. Zerkal’s summary of a of a conversation he had with the President Eliot L. Engel, House Comm. on Foreign Af- statement by Mr. Yermak). that reaffirmed Ambassador Sondland’s un- fairs, et al., to Michael R. Pompeo, Sec’y, 155. Volker Text Messages at KV00000019. derstanding that President Zelensky had to Dep’t of State (Sept. 9, 2019), https:// 156. Sondland Opening Statement at 22, Ex. make a public statement announcing the in- perma.cc/C4W4-UBTF. 7; Sondland Hearing Tr. at 28, 102. vestigations in order to obtain the White 203. Vindman Dep. Tr. at 304. 157. Volker Text Messages at KV00000020. House meeting and security assistance. See 204. Letter from Michael K. Atkinson, In- 158. Volker Interview Tr. at 113. Sondland Hearing Tr. at 109. Both documen- spector Gen. of the Intelligence Community, 159. Sondland Hearing Tr. at 18. tary evidence and testimony confirmed that to Chairman Adam Schiff, House Permanent 160. Volker Text Messages at KV00000023. the conversation described by Mr. Morrison Select Comm. on Intelligence, and Ranking Ambassador Volker claimed that he and Ambassador Taylor occurred on Sep- Member Devin Nunes, House Permanent Se- ‘‘stopped pursuing’’ the statement from the tember 7. See, e.g., Morrison Dep. Tr. at 144– lect Comm. on Intelligence 2 (Sept. 9, 2019), Ukrainians around this time because of con- 45; Taylor Dep. Tr. at 38; Volker Text Mes- https://perma.cc/K78N-SMRR. cerns raised by Mr. Yermak. Ambassador sages at KV00000053 (Sondland text message 205. Id. Kurt Volker, Testimony Before the House of to Volker and Taylor on September 8 stat- 206. Maguire Hearing Tr. at 14, 19–24. Representatives Committee on Foreign Affairs, ing, ‘‘Guys, multiple convos with Ze, Potus. 207. Letter from Chairman Adam B. Schiff, Permanent Select Committee on Intelligence, Lets talk’’). House Permanent Select Comm. on Intel- and Committee on Oversight 8 (Oct. 3, 2019) 186. Morrison Dep. Tr. at 190–91. ligence, to Joseph Maguire, Acting Dir. of (Volker Opening Statement), https:// 187. Id. at 145. Nat’l Intelligence (Sept. 10, 2019), https:// perma.cc/9DDN-2WFW; Volker Interview Tr. 188. Id. at 223, 238. perma.cc/9X9V-G5ZN. at 44–45, 199; Volker-Morrison Hearing Tr. at 189. Taylor-Kent Hearing Tr. at 44. 208. Transcript, Whistleblower Disclosure: 21. 190. Sondland Hearing Tr. at 7; Taylor Dep. Hearing Before the H. Permanent Select Comm. 161. See, e.g., Sondland Opening Statement Tr. at 39. on Intelligence, 116th Cong. 110 (Sept. 26, 209) at 16 (‘‘[M]y goal, at the time, was to do 191. Volker Text Messages at KV00000053. (testimony of Joseph Maguire, Acting Dir., what was necessary to get the aid released, 192. Sondland Hearing Tr. at 110–11; Andrew Nat’l Intelligence) (Maguire Hearing Tr.) to break the logjam. I believed that the pub- E. Kramer, Ukraine’s Zelensky Bowed to (‘‘Chairman Schiff, when I received the let- lic statement we had been discussing for Trump’s Demands until Luck Spared Him, N.Y. ter from Michael Atkinson on the 26th of Au- weeks was essential to advancing that Times (Nov. 7, 2019), https://perma.cc/A5JE- gust, he concurrently sent a letter to the Of- goal.’’). N25L; Fareed Zakaria, Zelensky Planned to fice of White House Counsel asking the

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00024 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.121 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S311 White House counsel to control and keep any (Trump Oct. 4 Remarks), https://perma.cc/ 254. Id. information that pertained to that phone C78K-NMDS. 255. Id. call on the 25th.’’). 230. Id. 256. Sandy Dep. Tr. at 37–39; Morrison Dep. 209. Michael S. Schmidt et al., Trump Knew 231. See, e.g., Kenneth P. Vogel & Benjamin Tr. at 161. of Whistle-Blower Complaint When He Released Novak, Giuliani, Facing Scrutiny, Travels to 257. See Press Release, House Permanent Aid to Ukraine, N.Y. Times (Nov. 26, 2019), Europe to Interview Ukrainians, N.Y. Times Select Comm. on Intelligence, House Judici- https://perma.cc/7473-YFSY. (Dec. 4, 2019) (Giuliani, Facing Scrutiny, Trav- ary and House Intelligence Committees to 210. See Morgan Philips, Trump Administra- els to Europe), https://perma.cc/N28V-GPAC; Hold Open Hearing with Special Counsel tion Lifts Hold on $250M in Military Aid for Dana Bash & Michael Warren, Giuliani Says Robert Mueller (July 19, 2019), https:// Ukraine, Fox News (Sept. 12, 2019), https:// Trump Still Supports His Dirt-Digging in perma.cc/6TZZ-BJKS. perma.cc/8ABM-XNPV. Ukraine, CNN (Dec. 17, 2019) (Giuliani Says 258. The July 25 Memorandum at 3, https:// 211. See, e.g., Morrison Dep. Tr. at 244; Trump Still Supports His Dirt-Digging), https:// perma.cc/8JRD-6K9V. Vindman Dep. Tr. at 306; Williams Dep. Tr. perma.cc/F399–B9AY. 259. U.S. Const., Art. I, § 2, cl. 5. at 147. Mr. Sandy testified that he was not 232. Giuliani, Facing Scrutiny, Travels to Eu- 260. See, e.g., Resolution Recommending That aware of any other countries committing to rope, https://perma.cc/HZ6F-E67G; David L. the House of Representatives Find William P. provide more financial assistance to Ukraine Stern & Robyn Dixon, Ukraine Lawmaker Barr, Attorney General, U.S. Department of prior to the lifting of the hold on September Seeking Biden Probe Meets with Giuliani in Justice, in Contempt of Congress for Refusal to 11. Sandy Dep. Tr. at 180. Lt. Col. Vindman Kyiv, Wash. Post (Dec. 5, 2019) (Ukraine Law- Comply with a Subpoena Duly Issued by the similarly confirmed that none of the ‘‘facts maker Seeking Biden Probe), https://perma.cc/ Committee on the Judiciary, H. Rep. No. 116– on the ground’’ changed before the President C3GW-RF4T; Will Sommer, Rudy’s New 105, at 13 (June 6, 2019) (‘‘The purposes of this lifted the hold. Vindman Dep. Tr. at 306. Ukraine Jaunt Is Freaking Out Trump’s Lieu- investigation include . . . considering wheth- 212. Sandy Dep. Tr. at 146–47; H. Rep. No. tenants—and He Doesn’t Care, Daily Beast er any of the conduct described in the Spe- 116–335, at 474. (Dec. 6, 2019) (Rudy’s New Ukraine Jaunt), cial Counsel’s Report warrants the Com- 213. Continuing Appropriations Act, 2020, https://perma.cc/UNR9-VWFZ. mittee in taking any further steps under and Health Extenders Act of 2019, Pub. L. No. 233. Ukraine Lawmaker Seeking Biden Probe, Congress’ Article I powers. That includes 116–59, § 124 (2019). https://perma.cc/W3Q2-E8QY. whether to approve articles of impeachment 214. Molly O’Toole & Sarah D. Wire, Mil- 234. Philip Bump, Giuliani May Be Making a with respect to the President[.]’’); Directing lions in Military Aid at Center of Impeachment Stronger Case Against Trump Than Biden, Certain Committees to Continue Their Ongoing Hasn’t Reached Ukraine, L.A. Times (Dec. 12, Wash. Post (Dec. 16, 2019), https://perma.cc/ Investigations as Part of the Existing House of 2019), https://perma.cc/AR26-3KY2 (citing a 7HR4-TC9W; Rudy’s New Ukraine Jaunt, Representatives Inquiry into Whether Sufficient DOD aide). https://perma.cc/UNR9-VWFZ. Grounds Exist for the House of Representatives 215. Hill-Holmes Hearing Tr. at 33; Taylor- 235. Giuliani, Facing Scrutiny, Travels to Eu- to Exercise its Constitutional Power to Impeach Kent Hearing Tr. at 106–07; see also Zelensky rope, https://perma.cc/HZ6F-E67G. Donald John Trump, President of the United Planned to Announce Trump’s ‘‘Quo’’, https:// 236. Rudy Giuliani (@RudyGiuliani), Twit- States of America, and for Other Purposes, H. perma.cc/MMT7-D8XJ. ter (Dec. 5, 2019, 1:42 PM), https://perma.cc/ Rep. No. 116–266, at 4 (Oct. 2019). 216. Williams Dep. Tr. at 156. 829X-TSKJ. 261. Sept. 9 Press Release, https://perma.cc/ 217. Classified Supp’l Submission of Jen- 237. Rebecca Ballhaus & Julie Bykowicz, AX4Y-PWSH. nifer Williams to the House Permanent Se- ‘‘Just Having Fun’’: Giuliani Doubles Down on 262. Press Release, Speaker of the House, lect Comm. on Intelligence (Nov. 26, 2019) Ukraine Probes, Wall Street J. (Dec. 13, 2019), Pelosi Remarks Announcing Impeachment (describing additional details of the Vice https://perma.cc/5B69-2AVR. Inquiry (Sept. 24, 2019), https://perma.cc/ President’s call with President Zelensky on 238. David Jackson, Trump Says Rudy 6EQM-34PT. September 18). Giuliani Will Give Information About Ukraine 263. Id. 218. Taylor-Kent Hearing Tr. at 106–07; Hill- to Justice Department, Congress, USA Today 264. H. Res. 660, 116th Cong. (2019). Holmes Hearing Tr. at 33. 265. Compare 165 Cong. Rec. E1357 (2019) (Im- 219. Zelensky Planned to Announce Trump’s (Dec. 7, 2019), https://perma.cc/7RXJ-JG7F. peachment Inquiry Procedures in the Com- ‘‘Quo’’, https://perma.cc/MMT7-D8XJ. 239. Giuliani Says Trump Still Supports His 220. Hill-Holmes Hearing Tr. at 46–47 (testi- Dirt-Digging, https://perma.cc/F399-B9AY; see mittee on the Judiciary Pursuant to H. Res. mony of David Holmes) (‘‘And although the also Asawin Suebsaeng & Erin Banco, Trump 660), with Investigatory Powers of the Com- hold on the security assistance may have Tells Rudy to Keep Pushing the Biden Conspir- mittee on the Judiciary with Respect to Its Im- been lifted, there were still things they acies, Daily Beast (Dec. 18, 2019), https:// peachment Inquiry, H. Rep. No. 105–795 (1998), wanted that they weren’t getting, including perma.cc/S5K6-K8J9 (quoting source who re- and with Impeachment Inquiry: Hearings Before a meeting with the President in the Oval Of- ported that President Trump told Mr. the H. Comm. on the Judiciary, Book III, 93d fice.... And I think that continues to this Giuliani to ‘‘keep at it’’). Cong. 2249–52 (1974); see also H. Rep. No. 116– day.’’). 240. Volker-Morrison Hearing Tr. at 139; see 346, at 17–25. 221. John Hudson & Anne Gearan, Trump Kent Dep. Tr. at 329. 266. H. Rep. No. 116–346, at 22–24. Meets Russia’s Top Diplomat amid Scrap over 241. Kent Dep. Tr. at 329. 267. Remarks by President Trump Before Ma- Election Interference, Wash. Post (Dec. 10, 242. Hill-Holmes Hearing Tr. at 32. rine One Departure, White House (Apr. 24, 2019), https://perma.cc/X5WC-LKT5; see also 243. Mueller Report, Vol. I at 1–2. 2019), https://perma.cc/W7VZ-FZ3T. Philip Bump, Trump Promised Zelensky a 244. Mueller Report, Vol. I at 49 (quoting 268. Remarks by President Trump at Turning White House Meeting. More Than a Dozen then-candidate Donald Trump). Point USA’s Teen Student Action Summit 2019, Other Leaders Got One Instead, Wash. Post 245. Id. Beginning in early November 2019, White House (July 23, 2019), https://perma.cc/ (Dec. 13, 2019), https://perma.cc/4XSP-R3JB while the House’s impeachment inquiry was EFF6-9BE7. (compiling White House meetings involving ongoing, Russian military hackers report- 269. Sept. 9 Letter, https://perma.cc/R2GH- foreign officials since April 2019). edly hacked Burisma’s server using ‘‘strik- TZ9P. 222. E.g., H. Rep. No. 116–346, at 124; see also ingly similar’’ tactics to those used to hack 270. Letter from Chairman Eliot L. Engel, Hill-Holmes Hearing Tr. at 46–47. the DNC in 2016. See Nicole Perlroth & Mat- House Comm. on Foreign Affairs, et al., to 223. Trump Sept. 24 Remarks, https:// thew Rosenberg, Russians Hacked Ukrainian Pat A. Cipollone, Counsel to the President 3 perma.cc/ZQ4P-FGT4. Gas Company at Center of Impeachment, N.Y. (Sept. 24, 2019), https://perma.cc/SCG3-6UEW. 224. Remarks by President Trump and Presi- Times (Jan. 13, 2019), https://perma.cc/5NSA- 271. Remarks by President Trump upon Air dent Zelensky of Ukraine Before Bilateral Meet- BELW. Force One Arrival, White House (Sept. 26, ing, White House (Sept. 25, 2019) (Trump 246. Mueller Report, Vol. I at 6. 2019), https://perma.cc/5RWE-8VTB. Sept. 25 Remarks), https://perma.cc/XCJ4- 247. Id., Vol. I at 58. 272. Letter from Chairman Elijah E. Cum- A67L. 248. See Aaron Blake, The Trump Team’s mings, House Comm. on Oversight and Re- 225. Trump Quotes Sondland Quoting Him: ‘‘I History of Flirting with—and Promoting—Now- form, et al., to John Michael Mulvaney, Act- Want Nothing. I Want No Quid Pro Quo.,’’ CBS Accused-Criminal Julian Assange, Wash. Post ing Chief of Staff to the President (Oct. 4, News (Nov. 20, 2019), https://perma.cc/X34R- (Nov. 16, 2018), https://perma.cc/UL9R-YQN. 2019) (Oct. 4 Letter), https://perma.cc/6RXE- QG3R. 249. Mueller Report, Vol. I at 54; id., Vol. II WER8. 226. Remarks by President Trump at the at 18. 273. Letter from Pat A. Cipollone, Counsel Swearing-In Ceremony of Secretary of Labor 250. Judd Legum, Trump Mentioned to the President, to Speaker Nancy Pelosi, Eugene Scalia, White House (Sept. 30, 2019) WikiLeaks 164 Times in Last Month of Election, House of Representatives, et al. 7 (Oct. 8, (Trump Sept. 30 Remarks), https://perma.cc/ Now Claims It Didn’t Impact One Voter, 2019), https://perma.cc/5P57-773X (Oct. 8 R94C-5HAY. ThinkProgress (Jan. 8, 2017), https:// Cipollone Letter). 227. Remarks by President Trump Before Ma- perma.cc/5J46-Y8RG. 274. Id. at 1–3, 6. rine One Departure, White House (Oct. 3, 2019) 251. Mueller Report, Vol. I at 110–20. 275. @realDonaldTrump (Oct. 1, 2019, 4:41 (Trump Oct. 3 Remarks), https://perma.cc/ 252. Id., Vol. I at 83–84, 87–89. PM), https://perma.cc/UX8Z-BFKL. WM8A-NRA2. 253. Transcript: ABC News’ George Stephan- 276. Letter from President Donald J. 228. Id. opoulos’ Exclusive Interview with President Trump to Speaker Nancy Pelosi, House of 229. Remarks by President Trump Before Ma- Trump, ABC News (June 16, 2019), https:// Representatives (Dec. 17, 2019), https:// rine One Departure, White House (Oct. 4, 2019) perma.cc/C8DS-637R. perma.cc/MY49-HRXH.

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00025 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.124 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S312 CONGRESSIONAL RECORD — SENATE January 21, 2020 277. Id. 293. Letter from Jason Yaworske, Assoc. 9PHC-84AM; Letter from Pat A. Cipollone, 278. Oct. 8 Cipollone Letter at 4. Dir. for Legislative Affairs, Office of Mgmt. Counsel to the President, to William Burck, 279. Exclusion of Agency Counsel from Con- & Budget, to Chairman Adam B. Schiff, Counsel to Deputy Counsel to the President gressional Depositions in the Impeachment House Permanent Select Comm. on Intel- for Nat’l Security Affairs John Eisenberg Context, 43 O.L.C. *1 (Nov. 1, 2019), https:// ligence (Oct. 15, 2019), https://perma.cc/AL7W- (Nov. 3, 2019), https://perma.cc/QP4G-YMKQ. perma.cc/T2PH-KC9V (emphasis added). YBLR; Letter from Robert R. Hood, Assist- 301. See, e.g., Letter from Jason A. 280. See, e.g., Trump Sept. 25 Remarks, ant Sec’y of Def. for Legislative Affairs, Yaworske, Associate Dir. for Leg. Affairs, Of- https://perma.cc/XCJ4-A67L; Trump Sept. 30 Dep’t of Def., to Chairman Adam B. Schiff, fice of Mgmt. & Budget, to Chairman Adam Remarks, https://perma.cc/R94C-5HAY; Re- House Permanent Select Comm. on Intel- B. Schiff, House Permanent Select Comm. on marks by President Trump and President ligence, et al. (Oct. 15, 2019), https://perma.cc/ Intelligence (Nov. 4, 2019), https://perma.cc/ Niinisto¨ of the Republic of Finland Before Bilat- 79ZG-ASGM. 4AYC-8SD9 (asserting OMB’s ‘‘position that, eral Meeting, White House (Oct. 2, 2019), 294. See, e.g., Vindman-Williams Hearing as directed by the White House Counsel’s Oc- https://perma.cc/FN4D-6D8W; Trump Oct. 3 Tr. at 31–32 (briefing materials for President tober 8, 2019 letter, OMB will not participate Remarks, https://perma.cc/WM8A-NRA2; Trump’s call with President Zelensky on in this partisan and unfair inquiry,’’ and Trump Oct. 4 Remarks, https://perma.cc/ July 25 prepared by Lt. Col. Vindman, Direc- that three OMB officials would therefore C78K-NMDS; @realDonaldTrump (Nov. 10, tor for Ukraine at the NSC); Vindman Dep. defy subpoenas for their testimony). 2019, 11:43 AM), https://perma.cc/F9XH-48Z2; Tr. at 53 and Morrison Dep. Tr. at 19–20 302. See H. Rep. No. 116–335, at 195, 198–99, id. (Dec. 4, 2019, 7:50 PM), https://perma.cc/ (notes relating to the July 25 call taken by 201, 203. Such witnesses included Robert Q4VY-T3CN; id., https://perma.cc/3WCM- Lt. Col. Vindman and Mr. Morrison, the Blair, Michael Ellis, P. Wells Griffith, Rus- AQJG. former Senior Director for Europe and Rus- sell Vought, and Brian McCormack. Id. 281. Rick Perry Called Rudy Giuliani, https:// sia on the NSC); Vindman Dep. Tr. at 186–87 303. See id. at 193–206 (describing and perma.cc/S2ED-AUPR. and Morrison Dep. Tr. at 166–67 (an August 15 quoting from correspondence with each wit- 282. Id. (quoting Secretary Rick Perry). ‘‘Presidential decision memo’’ prepared by ness who refused to appear). 283. Oct. 17 Briefing, https://perma.cc/Q45H- Lt. Col. Vindman and approved by Mr. Morri- 304. See H. Rep. No. 116–346, at 200, 365; see, EMC7. son conveying ‘‘the consensus views from the e.g., Letter from Chairman Adam B. Schiff, 284. H. Rep. No. 116–346, at 11 (‘‘On Decem- entire deputies small group’’ that ‘‘the secu- House Permanent Select Comm. on Intel- ber 3, 2019, in consultation with the Commit- rity assistance be released’’); Cooper Dep. Tr. ligence, et al., to Michael Duffey, Assoc. Dir. tees on Oversight and Reform and Foreign at 42–43 (NSC staff summaries of conclusions for Nat’l Sec. Programs, Office of Mgmt. & Affairs, HPSCI released and voted to adopt a from meetings at the principal, deputy, or Budget (Oct. 25, 2019), https://perma.cc/3S5B- report of nearly 300 pages detailing its exten- sub-deputy level relating to Ukraine, includ- FH94; Email from Daniel S. Noble, Senior In- sive findings about the President’s abuse of ing military assistance); Sondland Hearing vestigative Counsel, House Permanent Se- his office and obstruction of Congress.’’). Tr. at 78–79 (call records between President lect Comm. on Intelligence, to Mick 285. The Impeachment Inquiry into President Trump and Ambassador Sondland,); Vindman Mulvaney, Acting Chief of Staff to the Presi- Donald J. Trump: Constitutional Grounds for Dep. Tr. at 36–37 (NSC Legal Advisor dent (Nov. 7, 2019), https://perma.cc/A62P- Presidential Impeachment: Hearing Before the Eisenberg’s notes and correspondence relat- 5ACG. H. Comm. on the Judiciary, 116th Cong. (Dec. 4, ing to discussions with Lt. Col. Vindman re- 305. See, e.g., Letter from Brian Bulatao, 2019); The Impeachment Inquiry into President garding the July 10 meetings in which Am- Under Sec’y of State for Mgmt., Dep’t of Donald J. Trump: Presentations from H. Perma- bassador Sondland requested investigations State, to Lawrence S. Robbins, Counsel to nent Select Comm. on Intelligence and H. Comm. in exchange for a White House meeting); Ambassador Marie Yovanovitch 1 (Oct. 10, on the Judiciary Before the H. Comm. on the Ju- Holmes Dep. Tr. at 31 (the memorandum of 2019), https://perma.cc/48UC-KJCM (‘‘I write diciary, 116th Cong. (Dec. 9, 2019). conversation from President Trump’s meet- on behalf of the Department of State, pursu- 286. See, e.g., Letter from President Donald ing in New York with President Zelensky on ant to the President’s instruction reflected J. Trump to Speaker Nancy Pelosi, U.S. September 25); Sondland Opening Statement in Mr. Cipollone’s letter, to instruct your cli- House of Representatives (Dec. 17, 2019), (emails and other messages between Ambas- ent . . . consistent with Mr. Cipollone’s let- https://perma.cc/Y6X4-TTPR. sador Sondland and senior White House offi- ter, not to appear before the Committees.’’); 287. Katie Rogers, At Louisiana Rally, cials, including Acting Chief of Staff id. at 3–10 (enclosing Mr. Cipollone’s letter); Trump Lashes Out at Impeachment Inquiry and Mulvaney, Senior Advisor to the Chief of Letter from David L. Norquist, Deputy Sec’y Pelosi, N.Y. TIMES (Oct. 11, 2019), https:// Staff Blair, and then-National Security Ad- of Def., Dep’t of Def., to Daniel Levin, Coun- perma.cc/RX9Z-DQHK. visor Bolton, among other high-level Trump sel to Deputy Assistant Sec’y of Def. Laura 288. See e.g., Danny Cevallos, Trump Administration officials). K. Cooper 1–2 (Oct. 22, 2019), https://perma.cc/ Tweeted as Marie Yovanovitch Testified: Was It 295. See H. Rep. No. 116–335, at 180–244. WM97-DZJZ (‘‘This letter informs you and Witness Tampering?, NBC News (Nov. 16, 2019), 296. Vindman Dep. Tr. at 186–87; Morrison Ms. Cooper of the Administration-wide direc- https://perma.cc/RG5N-EQYN; Dep. Tr. at 166–67; see also, e.g., Sandy Dep. tion that Executive Branch personnel ‘can- @realDonaldTrump (Sept. 29, 2019, 3:53 PM), Tr. at 58–60 (describing an OMB memo- not participate in [the impeachment] inquiry https://perma.cc/9C3P-E437; Trump War randum prepared in August that rec- under these circumstances.’ ’’ (quoting Mr. Room—Text FIGHT to 88022 ommended removing the hold). Cipollone’s letter)); id. at 25–32 (enclosing (@TrumpWarRoom) (Dec. 26, 2019, 1:50 PM), 297. Taylor Dep. Tr. at 33–34, 45–46 (describ- Mr. Cipollone’s letter). https://perma.cc/M5H7-B4VS (retweeted by ing August 27 cable to Secretary Pompeo, 306. See H. Rep. No. 116–346, at 9; see also @realDonaldTrump on Dec. 26, 2019). WhatsApp messages with Ukrainian and Read for Yourself: President Trump’s Abuse of 289. H. Res. 755, 116th Cong (2019). American officials, and notes); Volker Dep. Power, House Permanent Select Comm. on 290. See H. Rep. No. 116–335, at 180–92. Tr. at 20 (describing State Department’s pos- Intelligence, https://perma.cc/2L54-YY9P. 291. Oct. 4 Letter, https://perma.cc/6RXE- session of substantial paper trail of cor- 307. See H. Rep. No. 116–346, at 9. WER8; Letter from Chairman Eliot L. Engel, respondence concerning meetings with 308. See id. at 10–11. 309. See H. Rep. No. 116–335, at 217–20 (de- House Comm. on Foreign Affairs, et al., to Ukraine); Yovanovitch Dep. Tr. at 61 (detailing the ways that ‘‘President Trump pub- Vice President Michael R. Pence (Oct. 4, scribing classified email to Under Secretary licly attacked and intimidated witnesses 2019), https://perma.cc/E6TR-5N5F; Letter Hale); id. at 197–200 (describing a dispute be- who came forward to comply with duly au- from Chairman Adam B. Schiff, House Per- tween George Kent and the State Depart- thorized subpoenas and testify about his con- manent Select Comm. on Intelligence, et al., ment pertaining to subpoenaed documents). to Russell T. Vought, Acting Dir., Office of 298. See, e.g., State Department Releases duct.’’); H. Rep. No. 116–346, at 366–67. 310. See H. Rep. No. 116–335, at 221–23 (de- Mgmt. & Budget (Oct. 7, 2019), https:// Ukraine Documents to American Oversight, tailing the ways that President Trump perma.cc/2HBV-2LNB; Letter from Chairman American Oversight (Nov. 22, 2019), https:// ‘‘threatened and attacked an Intelligence Eliot L. Engel, House Comm. on Foreign Af- perma.cc/N7K2–D7G3; Joint Status Report at Community whistleblower’’); H. Rep. No. 116– fairs, et al., to Michael R. Pompeo, Sec’y, 1, American Oversight v. Dep’t of State, No. Dep’t of State (Sept. 27, 2019), https:// 346, at 366–67. 19–cv–2934 (D.D.C. Nov. 25, 2019), ECF No. 19. 311. See generally Mueller Report, Vol. II; H. perma.cc/8N7L-VSDR; Letter from Chairman 299. For example, documents produced by Rep. No. 116–346, at 159–61. Adam B. Schiff, House Permanent Select OMB, unredacted copies of which reportedly 312. Mueller Report, Vol. II at 85–86. Comm. on Intelligence, et al., to Mark Esper, were obtained by the online forum Just Secu- 313. Id., Vol. II at 114–17. Sec’y, Dep’t of Def. (Oct. 7, 2019), https:// rity, corroborate the witnesses who testified 314. Id., Vol. II at 90–93. perma.cc/LMU8-XWE9; Letter from Chair- that the military aid for Ukraine was with- 315. Id., Vol. II at 120–56. man Eliot L. Engel, House Comm. on For- held at the express direction of President 316. See Comm. on the Judiciary v. eign Affairs, et al., to Rick Perry, Sec’y, Trump and that the White House was in- McGahn,—F. Supp. 3d—, No. 19–2379. 2019 WL Dep’t of Energy (Oct. 10, 2019), https:// formed that doing so may violate the law. 6312011 (D.D.C. Nov. 25, 2019), appeal pending, perma.cc/586S-AR8A. See Just Security Report, https://perma.cc/ No. 19–5331 (D.C. Cir.). The U.S. Court of Ap- 292. Letter from Matthew E. Morgan, Coun- VA6U-RYPK. peals for the D.C. Circuit heard oral argu- sel to the Vice President, to Chairman Elijah 300. See Letter from Pat A. Cipollone, ment in the case on January 3, 2020. E. Cummings, House Comm. on Oversight Counsel to the President, to William Pittard, 317. Mueller Report, Vol. I at 1 (describing and Reform, et al. (Oct. 15, 2019), https:// Counsel to Acting Chief of Staff Mick the scope of the order appointing Special perma.cc/L6LD-C4YM. Mulvaney (Nov. 8, 2019), https://perma.cc/ Counsel Mueller).

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00026 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.126 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S313 318. See, e.g., id., Vol. I at 1–2 (the Trump 1. By limiting impeachment to cases of Janet Reno explained that ‘‘the immunity Campaign ‘‘expected it would benefit ‘‘Treason, Bribery, or other high Crimes and such [immediate] advisers enjoy from testi- electorally from information stolen and re- Misdemeanors,’’ 1 the Framers restricted im- monial compulsion by a congressional com- leased through Russian efforts’’). peachment to specific offenses against ‘‘al- mittee is absolute and may not be overborne 319. See generally id., Vol. II. As the Mueller ready known and established law.’’ 2 That by competing congressional interests.’’ 13 Report summarizes, the Special Counsel’s in- was a deliberate choice designed to constrain c. Under the President’s supervision, Exec- vestigation ‘‘found multiple acts by the the impeachment power. In keeping with utive Branch officials were directed not to President that were capable of exerting that restriction, every prior presidential im- comply with subpoenas because the commit- undue influence over law enforcement inves- peachment in our history has been based on tees seeking their testimony refused to allow tigations, including the Russian-interference alleged violations of existing law—indeed, them to be accompanied by agency counsel. and obstruction investigations. The inci- criminal law.3 House Democrats’ newly in- OLC concluded that the committees ‘‘may dents were often carried out through one-on- vented ‘‘abuse of power’’ theory collapses at not bar agency counsel from assisting an ex- one meetings in which the President sought the threshold because it fails to allege any ecutive branch witness without contravening to use his official power outside of usual violation of law whatsoever. the legitimate prerogatives of the Executive channels. These actions ranged from efforts 2. House Democrats’ concocted theory that Branch,’’ and that attempting to enforce a to remove the Special Counsel and to reverse the President can be impeached for taking subpoena while barring agency counsel the effect of the Attorney General’s recusal; permissible actions if he does them for what ‘‘would be unconstitutional.’’ 14 to the attempted use of official power to they believe to be the wrong reasons would 2. Defending the separation of powers is not limit the scope of the investigation; to direct also expand the impeachment power beyond an impeachable offense and indirect contacts with witnesses with constitutional bounds. It would allow a hos- Contrary to House Democrats’ claims, as- the potential to influence their testimony.’’ tile House to attack almost any presidential serting legal rights and constitutional privi- Id., Vol. II at 157. action by challenging a President’s subjec- leges of the Executive Branch is not ‘‘ob- [In Proceedings Before the United States tive motives. Worse, House Democrats’ struction.’’ Senate] methods for identifying supposedly illicit a. In a government of laws, asserting legal motives ignore the constitutional structure defenses cannot be treated as obstruction; it TRIAL MEMORANDUM OF PRESIDENT DONALD J. of our government. As proof of improper mo- is a fundamental right. As the Supreme TRUMP tive, they claim that the President sup- Court has instructed: ‘‘[F]or an agent of the EXECUTIVE SUMMARY posedly ‘‘disregarded United States foreign State to pursue a course of action whose ob- The Articles of Impeachment now before policy towards Ukraine,’’ 4 that he was jective is to penalize a person’s reliance on the Senate are an affront to the Constitution ‘‘briefed on official policy’’ 5 but chose to ig- his legal rights is ‘patently unconstitu- and to our democratic institutions. The Arti- nore it, and that he ‘‘ignored, defied, and tional.’ ’’ 15 The same principles apply in im- cles themselves—and the rigged process that confounded every office and agency within peachment. During the Clinton impeach- brought them here—are a brazenly political the Executive Branch.’’ 6 These assertions ment, Harvard Law Professor Laurence Tribe act by House Democrats that must be re- are preposterous and dangerous. They mis- put it this way: jected. They debase the grave power of im- understand the assignment of power under The allegations that invoking privileges peachment and disdain the solemn responsi- the Constitution and the very concept of and otherwise using the judicial system to bility that power entails. Anyone having the democratic accountability. Article II states shield information . . . is an abuse of power most basic respect for the sovereign will of that ‘‘[t]he executive Power shall be vested that should lead to impeachment and re- the American people would shudder at the in a President.’’ 7 It is the President who de- moval from office is not only frivolous, but enormity of casting a vote to impeach a duly fines foreign policy, not the unelected bu- also dangerous.16 elected President. By contrast, upon tallying reaucrats who are his subordinates. Any the- In 1998, now-Chairman Jerrold Nadler their votes, House Democrats jeered until ory of an impeachable offense that turns on agreed that a president cannot be impeached they were scolded into silence by the Speak- ferreting out supposedly ‘‘constitutionally for asserting a legal privilege: ‘‘[T]he use of er. The process that brought the articles improper’’ 8 motives by measuring the Presi- a legal privilege is not illegal or impeachable here violated every precedent and every dent’s policy decisions against a purported by itself, a legal privilege, executive privi- 17 principle of fairness followed in impeach- interagency consensus 9 is both fundamen- lege.’’ And Chairman Adam Schiff has ment inquiries for more than 150 years. Even tally anti-democratic and an absurdly imper- turned the law on its head with his unprece- so, all that House Democrats have succeeded missible inversion of the constitutional dented claim that it is ‘‘obstruction’’ for any in proving is that the President did abso- structure. official to assert rights that might prompt House committees even ‘‘to consider litiga- lutely nothing wrong. B. House Democrats’ Theory of ‘‘Obstruction tion’’ to establish the validity of their sub- After focus-group testing various charges of Congress’’ Is Not an Impeachable Offense for weeks, House Democrats settled on two poenas in court.18 House Democrats’ ‘‘obstruction of Con- flimsy Articles of Impeachment that allege b. Where, as here, the principles the Presi- gress’’ claim is frivolous and dangerous. no crime or violation of law whatsoever— dent invoked are critical for preserving Ex- House Democrats propose removing the much less ‘‘high Crimes and Misdemeanors,’’ ecutive Branch prerogatives, treating the as- President from office because he asserted as required by the Constitution. They do not sertion of privileges as ‘‘obstruction’’ would legal rights and privileges of the Executive remotely approach the constitutional do permanent damage to the separation of Branch against defective subpoenas—based threshold for removing a President from of- powers—among all three branches. House on advice from the Department of Justice. fice. The diluted standard asserted here Democrats have essentially announced that Accepting that theory would do lasting dam- would permanently weaken the Presidency they may treat any resistance to their de- age to the separation of powers. and forever alter the balance among the mands as ‘‘obstruction’’ without taking any branches of government in a manner that of- 1. President Trump properly asserted steps to resolve their dispute with the Presi- fends the constitutional design established executive branch prerogatives dent. Accepting that unprecedented ap- by the Founders. House Democrats jetti- Contrary to the mistaken charge that the proach would fundamentally damage the sep- soned all precedent and principle because President lacked ‘‘lawful cause or excuse’’ to aration of powers by making the House itself their impeachment inquisition was never resist House Democrats’ subpoenas,10 the the sole judge of its authority. It would per- really about discovering the truth or con- President acted only after securing advice mit Congress to threaten every President ducting a fair investigation. Instead, House from the Department of Justice’s Office of with impeachment merely for protecting the Democrats were determined from the outset Legal Counsel (OLC) and based on estab- prerogatives of the Presidency. As Professor to find some way—any way—to corrupt the lished legal principles or immunities. Jonathan Turley testified before the House extraordinary power of impeachment for use a. Several Executive Branch officials re- Judiciary Committee: ‘‘Basing impeachment as a political tool to overturn the result of fused to comply with subpoenas purportedly on this obstruction theory would itself be an the 2016 election and to interfere in the 2020 issued pursuant to an ‘‘impeachment in- abuse of power . . . by Congress.’’ 19 election. All of this is a dangerous perversion quiry’’ before the House had authorized any c. At bottom, the ‘‘obstruction’’ charge of the Constitution that the Senate should such inquiry, because, as OLC advised, the asks the Senate to remove a duly elected swiftly and roundly condemn. subpoenas were unauthorized and had no President from office because he acted on legal force.11 the advice of the Department of Justice con- I. The articles fail because they do not identify b. The President directed three of his most cerning his legal and constitutional rights as any impeachable offense senior advisers not to comply with sub- President. Stating that proposition exposes A. House Democrats’ Theory of ‘‘Abuse of poenas seeking their testimony because they it as frivolous. The Framers restricted im- Power’’ Is Not an Impeachable Offense are immune from compelled testimony be- peachment to reach only egregious conduct House Democrats’ novel theory of ‘‘abuse fore Congress. Through administrations of that endangers the Constitution. A dif- of power’’ improperly supplants the standard both political parties, OLC ‘‘has repeatedly ference of legal opinion over whether sub- of ‘‘high Crimes and Misdemeanors’’ with a provided for nearly five decades’’ that ‘‘Con- poenas are enforceable cannot be dressed up made-up theory that would permanently gress may not constitutionally compel the to approach that level. As Edmund Randolph weaken the Presidency by effectively per- President’s senior advisers to testify about explained in the Virginia ratifying conven- mitting impeachments based merely on pol- their official duties.’’ 12 In the Clinton ad- tion, ‘‘No man ever thought of impeaching a icy disagreements. ministration, for example, Attorney General man for an opinion.’’ 20

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00027 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.127 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S314 CONGRESSIONAL RECORD — SENATE January 21, 2020 II. The impeachment inquiry in the House was process protections in an impeachment in- collusion myth. Instead, they launched hear- irredeemably flawed quiry. Chairman Nadler himself has ex- ings and issued subpoenas straining to find A. House Democrats’ Inquiry Violated All plained that a House impeachment inquiry wrongdoing where Special Counsel Mueller Precedent and Due Process ‘‘demands a rigorous level of due process.’’ 27 and the Department of Justice had found 1. The process that resulted in these Arti- Specifically, he explained that ‘‘due process none. And they launched new investigations, cles of Impeachment was flawed from the mean[s] . . . the right to confront the wit- trying to rummage through the President’s start. Since the Founding of the Republic, nesses against you, to call your own wit- tax returns and pushing fishing expeditions the House has never launched an impeach- nesses, and to have the assistance of coun- everywhere in the hope that they might find 28 ment inquiry against a President without a sel.’’ Here, however, all due process rights something. No other President in history has vote of the full House authorizing it. And were denied to the President. been subjected to a comparable barrage of 3. Chairman Schiff’s hearings were fatally there is good reason for that. No committee investigations, subpoenas, and lawsuits, all defective for another reason—Schiff himself can investigate pursuant to powers assigned in service of an insatiable partisan desire to was instrumental in helping to create the by the Constitution to the House—including find some way to remove him from office. story behind them. This inquiry centered on the ‘‘sole Power of Impeachment’’ 21—unless When those proceedings went nowhere, the President’s conversation on July 25, 2019, the House has voted to delegate authority to House Democrats seized on the next vehicle with the President of Ukraine. That call be- the committee.22 Here, it was emblematic of that could be twisted to carry their impeach- came a matter of public speculation after a the lack of seriousness that characterized ment dream: a perfectly appropriate tele- so-called whistleblower relayed a distorted, this whole process that House Democrats phone call between President Trump and the second-hand version of the call to the Inspec- cast law and history aside and started their President of Ukraine. House Democrats have tor General of the Intelligence Community purported inquiry with nothing more than a pursued their newly concocted charges for (ICIG). Before laundering his distortions press conference.23 On that authority alone, two reasons. First, they have been obsessed through the ICIG, the same person secretly they issued nearly two dozen subpoenas that for years with overturning the 2016 election. shared his false account with Chairman OLC determined were unauthorized and in- Radical left Democrats have never been able Schiff’s HPSCI staff and asked ‘‘for guid- valid.24 The full House did not vote to au- to come to grips with losing the election, ance.’’ 29 After initially lying about it, Chair- thorize the inquiry until five weeks later and impeachment provides them a way to man Schiff was forced to admit that his staff when it adopted House Resolution 660 on Oc- nullify the judgment of the tens of millions had conferred with the so-called whistle- tober 31, 2019. That belated action was a tell- of voters who rejected their candidate. Sec- blower before he filed his complaint. But the ing admission that the process was unau- ond, they want to use impeachment to inter- entirety of the role that Chairman Schiff and thorized. fere in the 2020 election. It is no accident 2. Next, House Democrats concocted an un- his staff played in orchestrating the com- that the Senate is being asked to consider a heard of procedure that denied the President plaint that launched this entire farce re- presidential impeachment during an election any semblance of fair process. The pro- mains shrouded in secrecy to this day— year. Put simply, Democrats have no re- ceedings began with secret hearings in a Chairman Schiff himself shut down every ef- sponse to the President’s record of achieve- basement bunker before three committees fort to inquire into it. ment in restoring prosperity to the Amer- 4. The denial of basic due process rights to under the direction of Chairman Schiff of the ican economy, rebuilding America’s mili- the President is such a fundamental error in- House Permanent Select Committee on In- tary, and confronting America’s adversaries fecting the House proceedings that the Sen- telligence (HPSCI). The President was denied abroad. Instead, they are held hostage by a ate could not possibly rely upon the cor- any right to participate at all. He was denied radical left wing that has foisted on their rupted House record to reach a verdict of the right to have counsel present, to cross party an agenda of socialism at home and ap- conviction. Any such record is tainted, and examine witnesses, to call witnesses, and to peasement abroad that Democrat leaders any reliance on a record created through the see and present evidence. Meanwhile, House know the American people will never accept. wholesale denial of due process rights would Democrats selectively leaked distorted For the Democrats, impeachment became an be unconstitutional. Nor is it the Senate’s versions of the secret testimony to compli- electoral imperative. Congressman Al Green role to remedy the House’s errors by pro- ant members of the press, who happily fed summarized that thinking best: ‘‘[I]f we viding a ‘‘do-over’’ and developing the record the public a false narrative about the Presi- don’t impeach the [P]resident, he will get re- itself. dent. elected.’’ 34 In their scorched-earth campaign Then, House Democrats moved on to a true B. House Democrats’ Goal Was Never to against the President, House Democrats view show trial as they brought their hand-picked Ascertain the Truth impeachment merely as the continuation of witnesses, whose testimony had already been House Democrats resorted to these unprec- politics by other means. set in private, before the cameras to present edented procedures because the goal was The result of House Democrats’ pursuit of prescreened testimony to the public. There, never to get to the truth. The goal was to their obsessions—and their willingness to before HPSCI, they continued to deny the impeach the President, no matter the facts. sacrifice every precedent and every principle President any rights. He could not be rep- House Democrats’ impeachment crusade standing in their way—is exactly what the resented by counsel, could not present evi- started the day the President took office. As Framers warned against: a wholly partisan dence or witnesses, and could not cross ex- Speaker Pelosi confirmed in December 2019, impeachment. These articles were adopted amine witnesses. her party’s quest to impeach the President without a single Republican vote. Indeed, This process not only violated every prece- had already been ‘‘going on for 22 months there was bipartisan opposition to them.35 30 The dent from the Nixon and Clinton impeach- . . . [t]wo and a half years, actually.’’ Democrats used to recognize that the mo- moment the President was sworn in, ment inquiries, it violated every principle of The mentous act of overturning a national elec- reported that partisans had justice and fairness known to our legal tradi- Washington Post tion by impeaching a President should never launched a campaign to impeach him.31 The tion. For more than 250 years, the common be done on a partisan basis. As Chairman current proceedings began with a complaint law system has regarded cross-examination Nadler explained: as the ‘‘greatest legal engine ever invented prepared with the assistance of a lawyer who for the discovery of truth.’’ 25 House Demo- declared in 2017 that he would use ‘‘impeach- There must never be a narrowly voted im- crats denied the President that right and ment’’ to effect a ‘‘coup.’’ 32 peachment or an impeachment supported by every other right because they were not in- House Democrats originally pinned their one of our major political parties and op- terested in the truth. Their only interest was impeachment hopes on the lie that the posed by another. Such an impeachment will securing an impeachment, and they knew Trump Campaign had colluded with Russia produce divisiveness and bitterness in our that a fair process could not get them there. during the 2016 election. That fixation politics for years to come, and will call into When the impeachment stage-show moved brought the country the Mueller investiga- question the very legitimacy of our political on to the Judiciary Committee, House Demo- tion. But after almost two years, $32 million, institutions.36 crats again denied the President his rights. 2,800 subpoenas, and nearly 500 search war- Senator Patrick Leahy agreed: ‘‘A partisan The Committee had already decided to fore- rants 33—along with incalculable damage to impeachment cannot command the respect go fact-finding and to adopt the one-sided the Nation—the Mueller investigation thor- of the American people. It is no more valid record from HPSCI’s ex parte hearings. oughly disproved Democrats’ Russian collu- than a stolen election.’’ 37 Chairman Nadler, Worse, Speaker Nancy Pelosi had already in- sion delusion. To make matters worse, we again, acknowledged that merely ‘‘hav[ing] structed the Committee to draft articles of now know that the Mueller investigation the votes’’ and ‘‘hav[ing] the muscle’’ in the impeachment. The only role for the Com- (and its precursor, Crossfire Hurricane) also House, without ‘‘the legitimacy of a national mittee was to ram through the articles to se- brought with it shocking abuses in the use of consensus,’’ is just an attempted ‘‘partisan cure a House vote by Christmas.26 There FISA orders to spy on American citizens and coup d’etat.’’ 38 Just last year, even Speaker could not have been a more blatant admis- a major-party presidential campaign—in- Pelosi acknowledged that an impeachment sion that evidence did not matter, the proc- cluding omissions and even outright lies to ‘‘would have to be so clearly bipartisan in ess was rigged, and impeachment was a pre- the Foreign Intelligence Surveillance Court terms of acceptance of it.’’ 39 All of these ordained result. and the fabrication of evidence by a com- prior invocations of principle have now been All of this reflected shameful hypocrisy mitted partisan embedded in the FBI. abandoned, adding to the wreckage littering from House Democrat leaders, who for dec- House Democrats could not tolerate the the wake of House Democrats’ impeach-at- ades had insisted on the importance of due findings of the Mueller Report debunking the all-costs strategy.

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00028 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.039 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S315 III. Article I fails because House Democrats 6. The undisputed reality is that U.S. sup- of House Democrats’ own star witnesses, Dr. have no evidence to support their claims port for Ukraine against Russia has increased Fiona Hill, acknowledged that Ukrainian of- A. The Evidence Shows That the President under President Trump. President Trump ficials ‘‘bet on Hillary Clinton winning the Did Not Condition Security Assistance or a provided Ukraine Javelin anti-tank missiles election,’’ and that ‘‘they were trying to Presidential Meeting on Announcements of to use against Russia after President Obama curry favor with the Clinton campaign’’ in- Any Investigations refused to provide that assistance. President cluding by ‘‘trying to collect information House Democrats have falsely charged that Trump also imposed heavy sanctions on Rus- . . . on Mr. Manafort and on other people as 56 the President supposedly conditioned mili- sia, for which President Zelensky thanked well.’’ All of that—and more—provides le- tary aid or a presidential meeting on him.49 A parade of State Department and Na- gitimate grounds for inquiry. 2. It also would have been legitimate to Ukraine’s announcing a specific investiga- tional Security Council (NSC) career offi- mention the Biden-Burisma affair. Public re- tion. Yet despite running an entirely ex cials universally acknowledged that Presi- ports indicate that then-Vice President parte, one-sided process to gather evidence, dent Trump’s policy was stronger in support Biden threatened withholding U.S. loan House Democrats do not have a single witness of Ukraine against Russia than his prede- guarantees to secure the dismissal of a who claims, based on direct knowledge, that cessor’s. Ambassador Yovanovitch testified Ukrainian prosecutor even though Biden the President ever actually imposed such a that ‘‘our policy actually got stronger’’ 50 was, at the time, operating under what ap- condition. Several undisputed, core facts under President Trump, and Ambassador peared to be, at the very least, a serious con- make clear that House Democrats’ charges Taylor agreed that aid under President flict of interest. The prosecutor reportedly are baseless. Trump was a ‘‘substantial improvement’’ 1. In an unprecedented display of trans- over the previous administration, largely be- had been investigating Burisma—a Ukrain- parency, the President released the tran- cause ‘‘this administration provided Javelin ian energy company notorious for corrup- script of his July 25 call with President anti-tank weapons,’’ which ‘‘are serious tion—and Biden’s son, Hunter, was sitting on 57 Volodymyr Zelensky, and it shows that the weapons’’ that ‘‘will kill Russian tanks.’’ 51 Burisma’s board. Unless being son of the President did nothing wrong. The Depart- The evidence shows that President Trump Vice President counted, Hunter had no ap- ment of Justice reviewed the transcript had legitimate concerns about corruption parent qualifications to merit that seat, or months ago and rejected the suggestion by and burden-sharing with our allies—two con- to merit being compensated (apparently) the ICIG (based on the whistleblower’s dis- sistent themes in his foreign policy. When more richly than board members at Fortune 58 torted account) that the call might have his concerns had been addressed, the aid was 100 energy giants like ConocoPhillips. In raised an election-law violation.40 released on September 11 without any action fact, numerous career State Department and 2. President Zelensky, his Foreign Min- concerning investigations. Similarly, a bilat- NSC employees agreed that Hunter Biden’s ister, and other Ukrainian officials have re- eral meeting with President Zelensky was connection with Burisma created, at a min- peatedly said there was no quid pro quo and first scheduled for September 1 in Warsaw imum, the appearance of a conflict of inter- 59 no pressure placed on them by anyone. and, after rescheduling due to Hurricane Do- est, and The Washington Post reported as 3. President Zelensky, his senior advisers, rian, took place on September 25 in New early as 2014 that ‘‘[t]he appointment of the [V]ice [P]resident’s son to a Ukrainian oil and House Democrats’ own witnesses have York, again, all without the Ukrainians all confirmed that Ukraine’s senior leaders board looks nepotistic at best, nefarious at doing anything related to investigations. 60 did not even know the aid was paused until As Professor Turley summed it up, this im- worst.’’ More than one official raised the after a Politico article was published on Au- peachment ‘‘stand[s] out among modern im- issue with the Vice President’s office at the time, but the Vice President took no action gust 28, 2019—over a month after the July 25 peachments as the shortest proceeding, with in response.61 call and barely two weeks before the aid was the thinnest evidentiary record, and the nar- released on September 11. On those facts, it would have been appro- rowest grounds ever used to impeach a presi- priate to raise this incident with President 4. House Democrats’ case rests almost en- dent.’’ 52 It is a constitutional travesty. tirely on: (i) statements from Ambassador to Zelensky. Ukraine cannot rid itself of cor- the European Union Gordon Sondland that B. House Democrats Rest on the False ruption if its prosecutors are always sty- he had come to believe (before talking to the Premise that There Could Have Been No mied. Here, public reports suggested that President) that the aid and a meeting were Legitimate Reason To Mention 2016 or the Vice President Biden played a role in derail- ‘‘likely’’ linked to investigations; and (ii) Biden-Burisma Affair ing a legitimate inquiry while under a monu- hearsay and speculation from others echoing The charges in Article I are further flawed mental conflict of interest. If Biden were not Sondland second- or third-hand. But because they rest on the mistaken premise running for President, House Democrats Sondland admitted that he was only ‘‘pre- that it would have been illegitimate for the would not argue that merely raising the inci- suming’’ a link.41 He stated unequivocally President to mention to President Zelensky dent would have been improper. But former that he has no evidence ‘‘[o]ther than [his] either (i) possible Ukrainian interference in Vice President Biden did not immunize his own presumption’’ that President Trump the 2016 election; or (ii) an incident in which past conduct (or his son’s) from all scrutiny connected releasing the aid to investiga- then-Vice President Biden had forced the dis- simply by declaring his candidacy for the tions, and he agreed that ‘‘[n]o one on this missal of a Ukrainian prosecutor. House presidency. planet told [him] that Donald Trump was Democrats acknowledge that, even under Importantly, even under House Democrats’ tying aid to investigations.’’ 42 Similarly, as their theory of ‘‘abuse of power,’’ they must theory, mentioning the matter to President for a link between a meeting and investiga- establish (in their words) that these matters Zelensky would have been entirely justified tions, Sondland admitted that he was specu- were ‘‘bogus’’ or ‘‘sham investigations’’ 53— as long as there was a basis to think that would advance the public interest. To defend lating about that as well, based on hearsay.43 that the only reason for raising them would merely asking a question, the President would When asked if ‘‘the President ever [told him] have been ‘‘to obtain an improper personal not have to show that Vice President Biden personally about any preconditions for any- political benefit.’’ 54 But that is obviously (or his son) actually committed any wrong- thing’’—i.e., for aid or a meeting—Sondland false. Even if the President had raised those doing. By contrast, under their own theory responded, ‘‘No.’’ 44 And when Ambassador issues, there were legitimate reasons to do of the case, to show ‘‘abuse of power,’’ the Kurt Volker, the special envoy who had ac- so. House Managers would have to prove that tually been negotiating with the Ukrainians, 1. Uncovering potential foreign inter- the inquiry could have no public purpose was asked if the President ever withheld a ference in U.S. elections is always a legiti- whatsoever. They have no such evidence. The meeting to pressure the Ukrainians, he said: mate goal, whatever the source of the inter- record shows it would have been legitimate ‘‘The answer to the question is no.’’ 45 ference and whether or not it fits with to mention the Biden-Burisma affair. ‘‘[T]here was no linkage like that.’’ 46 Democrats’ preferred narrative about 2016. The only two people with statements on House Democrats’ assertion that asking his- IV. The articles are structurally deficient and record who spoke directly to the President torical questions about the last election can only result in acquittal on the matter—Sondland and Senator Ron somehow equates to securing ‘‘improper in- The articles are also defective because Johnson—directly contradicted House Demo- terference’’ in the next election is nonsen- each charges multiple different acts as pos- crats’ false allegations. Sondland testified sical. Asking about the past cannot be twist- sible grounds for conviction. The problem that when he asked the President what he ed into interference in a future election. with offering such a menu of options is that, wanted, the President stated unequivocally: Even if facts uncovered about conduct in the for a valid conviction, the Constitution re- ‘‘I want nothing. I want no quid pro quo.’’ 47 last election were to have some impact on quires two-thirds of Senators present to Similarly, Senator Johnson related that, the next election, uncovering historical facts agree on the specific basis for conviction. A when he asked the President if there was any is not improper interference. Nor can House vote on these articles, however, cannot en- linkage between investigations and the aid, Democrats self-servingly equate asking any sure that a two-thirds majority agreed on a the President responded: ‘‘(Expletive de- questions about Ukraine with advocating particular ground for conviction. Instead, leted)—No way. I would never do that.’’ 48 that Ukraine, instead of Russia, interfered in such a vote could reflect an amalgamation of 5. The military aid flowed on September 11, 2016.55 Actors in more than one country can votes resting on several different theories, 2019, and a presidential meeting was first interfere in an election at the same time, in no single one of which would have garnered scheduled for September 1 and then took different ways and for different purposes. two-thirds support if it had been presented place on September 25, 2019, all without the And there has been plenty of public report- separately. This structural deficiency cannot Ukrainian government having done anything ing to give reason to be suspicious about be remedied by dividing the different allega- about investigations. many Ukrainians’ conduct in 2016. Even one tions within each article for voting, because

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00029 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.040 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S316 CONGRESSIONAL RECORD — SENATE January 21, 2020 that is prohibited under Senate rules.62 The that the House could impeach for the wrong volves official corruption of a highly malig- only constitutional option is for the Senate reasons.68 That is why the Constitution en- nant sort, threatening the very soul of a de- to reject the articles as framed and acquit trusts the Senate with the ‘‘sole Power to mocracy committed to equality under the the President. try all Impeachments.’’ 69 Under that charge, law.’’ 81 According to Professor Philip The Framers foresaw that the House might it is the Senate’s constitutional duty to de- Bobbitt, ‘‘[l]ike treason, the impeachable of- at times fall prey to tempestuous partisan cide for itself all matters of law and fact fense of bribery . . . must be an act that ac- tempers. Alexander Hamilton recognized bearing upon this trial.70 These decisions in- tually threatens the constitutional stability that ‘‘the persecution of an intemperate or clude whether the accusation presented by and security of the State.’’ 82 The text of the designing majority in the House of Rep- House Democrats even rises to the level of Constitution thus indicates that the ‘‘other’’ resentatives’’ was a real danger in impeach- describing an impeachable offense, the crimes and misdemeanors that qualify as im- ments,63 and Jefferson acknowledged that standard of proof that House Democrats peachable offenses must be sufficiently egre- impeachment provided ‘‘the most formidable must meet to prove their case, and whether gious that, like treason and bribery, they in- weapon for the purposes of dominant faction they have met this burden. As Rep. John volve a fundamental betrayal that threatens that ever was contrived.’’ 64 That is why the Logan, a House manager in President John- to subvert the constitutional order of gov- Framers entrusted the trial of impeachments son’s impeachment trial, explained ‘‘all ernment. to the Senate. As Justice Story explained, questions of law or of fact are to be decided Treason and bribery are also, of course, of- the Framers saw the Senate as a tribunal in these proceedings by the final vote’’ 71 of fenses defined by law. Each of the seven ‘‘removed from popular power and passions the Senate, and ‘‘in determining this general other references in the Constitution to im- . . . and from the more dangerous influence issue Senators must consider the sufficiency peachment also supports the conclusion that of mere party spirit,’’ and guided by ‘‘a deep or insufficiency in law or in fact of every ar- impeachments must be evaluated in terms of offenses against settled law: The Constitu- responsibility to future times.’’ 65 Now, per- ticle of accusation.’’ 72 tion refers to ‘‘Conviction’’ for impeachable haps as never before, it is essential for the B. An Impeachable Offense Requires a Violation offenses twice 83 and ‘‘Judgment in Cases of Senate to fulfill the role Hamilton envi- of Established Law that Inflicts Sufficiently Impeachment.’’ 84 It directs the Senate to sioned for it as a ‘‘guard[] against the danger Egregious Harm on the Government that It ‘‘try all Impeachments’’ 85 and requires the of persecution, from the prevalency of a fac- Threatens to Subvert the Constitution. 66 Chief Justice’s participation when the Presi- tious spirit’’ in the House. The President of the United States occu- 86 The Senate should speedily reject these de- dent is ‘‘tried.’’ And it implies impeachable pies a unique position in the structure of our offenses are ‘‘Crimes’’ and ‘‘Offenses’’ in the ficient Articles of Impeachment and acquit government. He is chosen directly by the the President. The only threat to the Con- Jury Trial Clause and the Pardon Clause, re- People through a national election to be the spectively.87 These are all words that indi- stitution that House Democrats have head of an entire branch of government and cate violations of established law. brought to light is their own degradation of Commander-in-Chief of the armed forces and The use of the term ‘‘high’’ in the Im- the impeachment process and trampling of is entrusted with enormous responsibilities peachment Clause is also significant, and the separation of powers. Their fixation on for setting policies for the Nation. Whether was clearly deliberate. Under English com- damaging the President has trivialized the Congress should supplant the will expressed mon law, ‘‘high’’ indicated crimes against momentous act of impeachment, debased the by tens of millions of voters by removing the the state; Blackstone defined ‘‘high treason’’ standards of impeachable conduct, and per- President from office is a question of breath- to include only offenses against ‘‘the su- verted the power of impeachment by turning taking gravity. Approaching that question preme executive power, or the king and his it into a partisan, election-year political requires a clear understanding of the limits government,’’ calling it the ‘‘highest civil tool. The consequences of accepting House the Constitution places on what counts—and crime.’’ 88 Democrats’ diluted standards for impeach- what does not count—as an impeachable of- In addition, ‘‘high Crimes and Mis- ment would reverberate far beyond this elec- fense. demeanors’’ had a technical meaning in tion year and do lasting damage to our Re- 89 1. Text and Drafting History of the English law, and there is evidence that the public. As Senator Lyman Trumbull, one of Impeachment Clause Framers were aware of this ‘‘limited,’’ ‘‘tech- the seven Republican Senators who crossed 90 Fearful that the power of impeachment nical meaning.’’ In England, ‘‘high Crimes the aisle to vote against wrongfully con- and Misdemeanors’’ referred to offenses that victing President Andrew Johnson, ex- might be abused, and recognizing that constitutional protections were required for the could be the subject of impeachment in par- plained: ‘‘Once [we] set the example of im- liament. No less an authority than Black- Executive, the Framers crafted a limited peaching a President for what, when the ex- stone, however, made clear that ‘‘an im- power of impeachment.73 The Constitution citement of the hour shall have subsided, peachment before the lords by the commons restricts impeachment to enumerated of- will be regarded as insufficient causes . . . no of Great Britain, in parliament, is a prosecu- fenses: ‘‘Treason, Bribery, or other high future President will be safe .... [A]nd tion of the already known and established Crimes and Misdemeanors.’’ 74 Treason and what then becomes of the checks and bal- law.’’ 91 As a result, nothing in the Constitu- bribery are well defined offenses and are not ances of the Constitution, so carefully de- tion’s use of the term ‘‘other high Crimes at issue in this case. The operative text here vised and so vital to its perpetuity? They are and Misdemeanors’’ suggests that impeach- is the more general phrase ‘‘other high all gone.’’ 67 It is the solemn duty of this ment under the Constitution could reach Crimes and Misdemeanors.’’ The structure body to be the bulwark of the Constitution anything other than a known offense defined and language of the clause—the use of the protecting against exactly this result. in existing law. Enough of the Nation’s time and resources adjective ‘‘other’’ to describe ‘‘high Crimes Significantly, the records of the Constitu- have been wasted on House Democrats’ par- and Misdemeanors’’ in a list immediately tional Convention also make clear that, in tisan obsessions. The Senate should bring a following the specific offenses ‘‘Treason’’ and important respects, the Framers intended decisive end to these excesses so that Con- ‘‘Bribery’’—calls for applying the ejusdem the scope of impeachable offenses under the gress can get back to its real job: working generis canon of interpretation. This canon Constitution to be much narrower than under together with the President to improve the instructs that ‘‘ ‘[w]here general words fol- English practice. When the draft Constitu- lives of all Americans. low specific words in a statutory enumera- tion had limited the grounds for impeach- tion, the general words are construed to em- 92 STANDARDS ment to ‘‘Treason, or bribery,’’ George brace only objects similar in nature to those Mason argued that the provision was too The extraordinary process invoked by objects enumerated by the preceding specific House Democrats under Article II, Section 4 narrow because ‘‘[a]ttempts to subvert the words.’’ 75 Under that principle, ‘‘other high Constitution may not be Treason’’ and that of the Constitution is not the constitu- Crimes and Misdemeanors’’ must be under- tionally preferred means to determine who the clause ‘‘will not reach many great and stood to have the same qualities—in terms of 93 should lead our country. It is a mechanism dangerous offenses.’’ He proposed the addi- seriousness and their effect on the func- 94 of last resort, reserved for exceptional cir- tion of ‘‘maladministration,’’ which had tioning of government—as the crimes of been a ground for impeachment in English cumstances—not present here—in which a ‘‘Treason’’ and ‘‘Bribery.’’ 76 President has engaged in unlawful conduct practice. Madison opposed that change on Treason is defined specifically in the Con- the ground that ‘‘[s]o vague a term’’ would that strikes at the core of our constitutional stitution and ‘‘consist[s] only in levying War make the President subject to ‘‘a tenure dur- system of government. against [the United States], or in adhering to ing [the] pleasure of the Senate,’’ 95 and the A. The Senate Must Decide All Questions of their Enemies, giving them Aid and Com- Convention agreed on adding ‘‘other high Law and Fact. fort.’’ 77 This offense is ‘‘a crime against and crimes & misdemeanors’’ instead.96 The Constitution makes clear that an im- undermining the very existence of the Gov- By rejecting ‘‘maladministration,’’ the peachment by the House of Representatives ernment.’’ 78 Bribery, like treason, is a seri- Framers significantly narrowed impeach- is nothing more than an accusation. The Ar- ous offense against the government that sub- ment under the Constitution and made clear ticles of Impeachment approved by the verts the proper functioning of the state. that mere differences of opinion, unpopular House come to the Senate with no presump- Blackstone, a ‘‘dominant source of author- policy decisions, or perceived misjudgments tion of regularity in their favor. On each of ity’’ for the Framers,79 called bribery an ‘‘of- cannot constitutionally be used as the basis the two prior occasions that the House fense against public justice.’’ 80 Professor for impeachment. Indeed, at various earlier adopted articles of impeachment against a Akhil Amar describes bribery as ‘‘secretly points during the Convention, drafts of the President, the Senate refused to convict on bending laws to favor the rich and powerful’’ Constitution had included as grounds for im- them. Indeed, the Framers wisely forewarned and contends that in this context it ‘‘in- peachment ‘‘malpractice or neglect of

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00030 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.041 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S317 duty’’ 97 and ‘‘neglect of duty [and] ing the process of voting for candidates for articles of impeachment approved by the malversation,’’ 98 but the Framers rejected the next presidential election, removing a House Judiciary Committee included mul- all of these formulations. The ratification President from office and taking that deci- tiple violations of law.120 Article I alleged debates confirmed the point that differences sion away from the people requires meeting obstruction of justice.121 And Article II as- of opinion or differences over policy could an extraordinarily high standard. As then- serted numerous legal breaches.122 not justify impeachment. James Iredell Senator Biden confirmed during President The impeachment of Andrew Johnson warned delegates to North Carolina’s ratify- Clinton’s trial, ‘‘to remove a duly elected proves the same point. In 1867, the House Ju- ing convention that ‘‘[a] mere difference of president will unavoidably harm our con- diciary Committee recommended articles of opinion might be interpreted, by the malig- stitutional structure’’ and ‘‘[r]emoving the impeachment against President Johnson. nity of party, into a deliberate, wicked ac- President from office without compelling The articles, however, did not allege any vio- tion,’’ 99 and thus should not provide the evidence would be historically anti-demo- lation of law. Largely as a result of that basis for impeachment. And Edmund Ran- cratic.’’ 109 fact, the Committee could not secure ap- dolph pointed out in the Virginia ratifying Any lesser standard would be inconsistent proval for them from a majority of the convention that ‘‘[n]o man ever thought of with the unique importance of the Presi- House. The minority report from the Com- impeaching a man for an opinion.’’ 100 dent’s role in the structure of the govern- mittee arguing against adoption of the arti- Taken together, the text, drafting history, ment, the profound disruption and danger of cles of impeachment explained that ‘‘[t]he and debates surrounding the Constitution uncertainty that attend to removing a presi- House of Representatives may impeach a make several points clear. First, the debates dent from office, and the grave implications civil officer, but it must be done according ‘‘make quite plain that the Framers, far of negating the will of the people expressed to law. It must be for some offence known to from proposing to confer illimitable power to in a national election. the law, and not created by the fancy of the 123 Rep. James F. impeach and convict, intended to confer a Second, because the President himself is members of the House.’’ Wilson argued the position of the minority limited power.’’ 101 As Senator Leahy has put vested with the authority of an entire report on the House floor, explaining that it, ‘‘[t]he Framers purposely restrained the branch of the federal government, his re- ‘‘no civil officer of the United States can be Congress and carefully circumscribed [its] moval would cause extraordinary disruption lawfully impeached except for a crime or power to remove the head of the co-equal Ex- to the Nation. Article II, Section 1 declares misdemeanor known to the law.’’ 124 As one 102 in no uncertain terms that ‘‘[t]he executive ecutive Branch.’’ historian has explained, ‘‘[t]he House had re- Second, the terminology of ‘‘high Crimes Power shall be vested in a President of the 110 fused to impeach Andrew Johnson . . . at and Misdemeanors’’ makes clear that an im- United States of America.’’ As Justice least in part because many representatives peachable offense must be a violation of es- Breyer has explained, ‘‘Article II makes a did not believe he had committed a specific tablished law. The Impeachment Clause did single President responsible for the actions violation of law.’’ 125 It was only after Presi- not confer upon Congress a roving license to of the Executive Branch in much the same dent Johnson violated the Tenure of Office make up new standards of conduct for gov- way that the entire Congress is responsible Act, a law passed by Congress, that he was ernment officials and to permit removal for the actions of the Legislative Branch, or successfully impeached.126 from office merely on a conclusion that con- the entire Judiciary for those of the Judicial Even if judicial impeachments have been duct was ‘‘bad’’ if there was not an existing Branch.’’ 111 As a result, ‘‘the application of based on charges that do not involve a crimi- law that it violated. the Impeachment Clause to the President of nal offense or violation of statute,127 that Third, by establishing that ‘‘other’’ im- the United States involves the uniquely sol- would provide no sound basis for diluting the peachable offenses must fall in the same emn act of having one branch essentially standards for presidential impeachment. Tex- class as the specific offenses of ‘‘treason’’ overthrow another.’’ 112 It also carries the tually, the Constitution’s Good Behavior and ‘‘bribery,’’ the Framers intended to es- risk of profound disruption for the operation Clause alters the standard for the impeach- tablish a requirement of particularly egre- of the federal government. ment of judges.128 In addition, for all the rea- gious conduct threatening the constitutional As ‘‘the chief constitutional officer of the sons outlined above, the President’s unique order to justify impeachment. Justice Story Executive branch,’’ the President is ‘‘en- role in the constitutional structure sets him recognized impeachment was ‘‘intended for trusted with supervisory and policy respon- apart and warrants more rigorous standards occasional and extraordinary cases’’ only.103 sibilities of utmost discretion and sensi- for impeachment. ‘‘When Senators remove For Professor Bobbitt, ‘‘[a]n impeachable of- tivity.’’ 113 Because he is assigned responsi- one of a thousand federal judges (or even one fense is one that puts the Constitution in bility to ‘‘take Care that the Laws be faith- of nine justices), they are not transforming jeopardy.’’ 104 Removal of the freely elected fully executed,’’ 114 all federal law enforce- an entire branch of government. But that is President of the United States based on any ment depends, ultimately, on the direction exactly what happens when they oust Amer- lesser standard would violate the plan of the of the President. In addition, he is the Com- ica’s one and only President, in whom all ex- Founders, who built our government on the mander-in-Chief of the armed forces 115 and ecutive power is vested by the first sentence principle it would ‘‘deriv[e] [its] just powers ‘‘the sole organ of the federal government in of Article II.’’ 129 Unlike a presidential im- from the consent of the governed.’’ 105 the field of international relations.’’ 116 The peachment inquiry, impeachment of a federal judge ‘‘does not paralyze the Nation’’ or 2. The President’s Unique Role in Our foreign policy of the Nation is determined cast doubt on the direction of the country’s Constitutional Structure primarily by the President. His removal would necessarily create uncertainty and domestic and foreign policy.130 Similarly, For at least two reasons, the President’s pose unique risks for U.S. interests around ‘‘[t]he grounds for the expulsion of the one unique role in our constitutional structure the globe. As OLC put it, removal of the person elected by the entire nation to pre- buttresses the conclusion that offenses war- President would be ‘‘politically and constitu- side over the executive cannot be the same ranting presidential impeachment must in- tionally a traumatic event,’’ 117 and Senator as those for one member of the almost four- volve especially egregious conduct that 131 Bob Graham rightly called it ‘‘one of the thousand-member federal judiciary.’’ threatens to subvert the constitutional order Thus, as then-Senator Biden recognized: most disruptive acts imaginable in a democ- of government. ‘‘The constitutional scholarship overwhelm- racy’’ during President Clinton’s trial.118 First, conviction of a President raises par- ingly recognizes that the fundamental struc- ticularly profound issues under our constitu- 3. Practice Under the Impeachment Clause tural commitment to a separation of powers tional structure because it means over- The practical application of the Impeach- requires [the Senate] to view the President turning the democratically expressed will of ment Clause by Congress supports the con- as different than a Federal judge.’’ 132 Indeed, the people in the only national election in clusion that an impeachable offense requires ‘‘our history establishes that, as applied, the which all eligible citizens participate. The especially egregious conduct that threatens constitutional standard for impeaching the impeachment power permits the possibility the constitutional order and, specifically, President has been distinctive, and properly that ‘‘the legislative branch [will] essen- that it requires a violation of established so.’’ 133 tially cancel[] the results of the most solemn law. The extraordinary threshold required C. The Senate Cannot Convict Unless It collective act of which we as a constitutional for impeachment is evidenced by the fact Finds that the House Managers Have democracy are capable: the national election that, in over two centuries under our Con- Proved an Impeachable Offense Beyond a of a President.’’106 stitution, the House has impeached a Presi- Reasonable Doubt As even the House Managers have acknowl- dent only twice. In each case, moreover, the Given the profound implications of remov- edged, ‘‘the issue’’ in a presidential impeach- Senate found the charges brought by the ing a duly elected president from office, an ment trial ‘‘is whether to overturn the re- House insufficient to warrant removal from exceptionally demanding standard of proof sults of a national election, the free expres- office. must apply in a presidential impeachment sion of the popular will of the American peo- In addition, until now, even in the articles trial.134 Senators should convict on articles ple.’’ 107 That step can be justified only by an of impeachment that the Senate found insuf- of impeachment against a President only if offense crossing an exceptional threshold. As ficient, the House has never impeached a they find that the House Managers have car- Chairman Nadler has put it, ‘‘[w]e must not President on charges that did not include a ried their burden of proving that the Presi- overturn an election and remove a President violation of established law. President Clin- dent committed an impeachable offense be- from office except to defend our system of ton was impeached on charges that included yond a reasonable doubt. government or our constitutional liberties perjury and obstruction of justice, both felo- As Senator Russ Feingold recognized in against a dire threat ....’’108 Especially nies under federal law.119 Similarly, in the the Clinton impeachment, ‘‘[i]n making a de- where the American people are already start- near-impeachment of President Nixon, the cision of this magnitude, it is best not to err

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at all. If we must err, however, we should err on the part of [the so-called whistleblower] THE ARTICLES SHOULD BE REJECTED AND THE on the side of . . . respecting the will of the in favor of a rival political candidate.’’ 149 PRESIDENT SHOULD IMMEDIATELY BE ACQUIT- 135 people.’’ Democrat and Republican Sen- On September 24, 2019, Speaker Nancy TED. ators alike applied the beyond a reasonable Pelosi unilaterally announced at a press con- I. The Articles Fail to State Impeachable Of- doubt standard during President Clinton’s ference that ‘‘the House of Representatives fenses as a Matter Of Law. 136 impeachment trial. As Senator Barbara is moving forward with an official impeach- A. House Democrats’ Novel Theory of Mikulski put it then: ‘‘The U.S. Senate must ment inquiry’’ 150 based on the anonymous ‘‘Abuse of Power’’ Does Not State an Im- not make the decision to remove a President complaint about the July 25 telephone call. peachable Offense and Would Do Lasting based on a hunch that the charges may be There was no vote by the House to authorize Damage to the Separation of Powers true. The strength of our Constitution and such an inquiry. House Democrats’ novel conception of the strength of our Nation dictate that [the On September 25, pursuant to a previous ‘‘abuse of power’’ as a supposedly impeach- Senate] be sure—beyond a reasonable able offense is constitutionally defective. It doubt.’’ 137 announcement,151 the President declassified and released the complete record of the July supplants the Framers’ standard of ‘‘high D. The Senate May Not Consider Allegations 166 25 call.152 Crimes and Misdemeanors’’ with a made- Not Charged in the Articles of Impeachment up theory that the President can be im- Under the Constitution, the House is given On September 26, HPSCI held its first hear- peached and removed from office under an the ‘‘sole Power of Impeachment’’ and the ing regarding the so-called whistleblower amorphous and undefined standard of ‘‘abuse Senate is given the ‘‘sole Power to try all complaint.153 And just one week later, on Oc- of power.’’ The Framers adopted a standard Impeachments.’’ 138 An impeachment is lit- tober 3, Chairman Schiff began a series of se- that requires a violation of established law erally a ‘‘charge’’ of particular wrong- cret, closed-door hearings regarding the to state an impeachable offense. By contrast, doing.139 Thus, under the division of respon- complaint.154 The President and his counsel in their Articles of Impeachment, House sibility in the Constitution, the Senate can were not permitted to participate in any of Democrats have not even attempted to iden- conduct a trial solely on the charges speci- these proceedings. tify any law that was violated. Moreover, fied in articles of impeachment approved by On October 31, after five weeks of hearings, House Democrats’ theory in this case rests a vote of the House and presented to the Sen- House Democrats finally authorized an im- on the radical assertion that the President ate. The Senate cannot expand the scope of peachment inquiry when the full House could be impeached and removed from office a trial to consider mere assertions appearing voted to approve House Resolution 660.155 By entirely for his subjective motives—that is, for in House reports that the House did not in- its terms, the Resolution did not purport to undertaking permissible actions for sup- clude in the articles of impeachment sub- retroactively authorize investigative efforts posedly ‘‘forbidden reasons.’’ 167 That unprec- mitted to a vote. Similarly, House Managers before October 31.156 edented test is so flexible it would vastly ex- trying the case in the Senate must be con- pand the impeachment power beyond con- On November 13, HPSCI held the first of fined to the specific conduct alleged in the stitutional limits and would permanently seven public hearings featuring some of the Articles approved by the House. weaken the Presidency by effectively per- These restrictions follow both from the witnesses who had already testified in secret. mitting impeachments based on policy dis- plain terms of the Constitution limiting the At this stage, too, the President and his agreements. Senate to trying an ‘‘impeachment’’ framed counsel were denied any opportunity to par- House Democrats cannot salvage their un- by the House and from elementary principles ticipate. HPSCI released a report on Decem- precedented ‘‘abuse of power’’ standard with 157 of due process. ‘‘[T]he senator’s role is solely ber 3, 2019. fuzzy claims that the Framers particularly one of acting on the accusations (Articles of On December 4, the House Judiciary Com- intended impeachment to address ‘‘foreign Impeachment) voted by the House of Rep- mittee held its first hearing, which featured entanglements’’ and ‘‘corruption of elec- resentatives. The Senate cannot lawfully four law professors, three of whom were se- tions.’’ 168 Those assertions are makeweights find the president guilty of something not lected by Democrats.158 that distort history and add no legitimacy to the radical theory of impeachment based on charged by the House, any more than a trial The next day, December 5, Speaker Pelosi jury can find a defendant guilty of some- subjective motive alone. announced the outcome of the Judiciary Under the Constitution, impeachable of- thing not charged in the indictment.’’ 140 ‘‘No Committee’s proceedings and directed Chair- principle of procedural due process is more fenses must be defined under established law. man Jerrold Nadler to draft articles of im- And they must be based on objective wrong- clearly established than that notice of the peachment.159 specific charge, and a chance to be heard in a doing, not supposed subjective motives trial of the issues raised by that charge, if de- On December 9, four days after Speaker dreamt up by a hostile faction in the House sired, are among the constitutional rights of Pelosi announced that articles of impeach- and superimposed onto a President’s entirely lawful conduct. every accused.’’ 141 As the Supreme Court has ment would be drafted, the Judiciary Com- explained, it has been the rule for over 130 mittee held its second and last hearing, 1. House Democrats’ Novel Theory of ‘‘Abuse years that ‘‘a court cannot permit a defend- which featured presentations solely from of Power’’ as an Impeachable Offense Sub- ant to be tried on charges that are not made staff members from HPSCI and the Judiciary verts Constitutional Standards and Would 160 in the indictment against him.’’ 142 Doing so Committee. The House Judiciary Com- Permanently Weaken the Presidency is ‘‘fatal error.’’ 143 mittee did not hear from any fact witnesses House Democrats’ theory that the Presi- Under the same principles of due process, at any time. dent can be impeached and removed from of- the Senate must similarly refuse to consider On December 10, Chairman Jerrold Nadler fice under a vaguely defined concept of any uncharged allegations as a basis for con- offered two articles of impeachment for the ‘‘abuse of power’’ would vastly expand the viction. Judiciary Committee’s consideration,161 and impeachment power beyond the limits set by PROCEDURAL HISTORY the Committee approved the articles on De- the Constitution and should be rejected by House Democrats have focused these pro- cember 13 on a party-line vote.162 the Senate. ceedings on a telephone conversation be- On December 18, a mere 85 days after the (a) House Democrats’ made-up ‘‘abuse of tween President Trump and President press conference purportedly launching the power’’ standard fails to state an impeach- Zelensky of Ukraine on July 25, 2019.144 At inquiry, House Democrats completed the able offense because it does not rest on vio- some unknown time shortly after that call, a fastest presidential impeachment inquiry in lation of an established law staffer in the Intelligence Community (IC)— history and adopted the Articles of Impeach- House Democrats’ claim that the Senate who had no first-hand knowledge of the ment over bipartisan opposition.163 can remove a President from office for run- call—approached the staff of Chairman ning afoul of some ill-defined conception of House Democrats justified their unseemly Adam Schiff on the House Permanent Select ‘‘abuse of power’’ finds no support in the text haste by claiming they had to move forward Committee on Intelligence (HPSCI) raising or history of the Impeachment Clause. As ex- ‘‘without delay’’ because the President complaints about the call.145 Although it is plained above,169 by limiting impeachment to would allegedly ‘‘continue to threaten the known that Chairman Schiff’s staff provided cases of ‘‘Treason, Bribery, or other high Nation’s security, democracy, and constitu- the IC staffer some ‘‘guidance,’’ 146 the extent Crimes and Misdemeanors,’’ 170 the Framers tional system if he is allowed to remain in of the so-called whistleblower’s coordination restricted impeachment to specific offenses office.’’ 164 In a remarkable reversal, how- with Chairman Schiff’s staff remains un- against ‘‘already known and established ever, as soon as they had voted, they decided known to this day. law.’’ 171 That was a deliberate choice de- that there was no urgency at all. House The IC staffer retained counsel, including signed to constrain the power of impeach- Democrats took a leisurely to an attorney who had announced just days four weeks ment.172 Restricting impeachment to of- complete the ministerial act of transmitting after President Trump took office that he fenses established by law provided a crucial the articles to the Senate—more than three supported a ‘‘coup’’ and ‘‘rebellion’’ to re- protection for the independence of the Exec- times longer than the entire length of pro- move the President from office.147 utive from what James Madison called the On August 12, 2019, the IC staffer filed a ceedings before the House Judiciary Com- ‘‘impetuous vortex’’ of legislative power.173 complaint about the July 25 telephone call mittee. As many constitutional scholars have recog- with the Inspector General of the IC.148 The The Senate now has the ‘‘sole Power to nized, ‘‘the Framers were far more concerned Inspector General found that there was try’’ the Articles of Impeachment trans- with protecting the presidency from the en- ‘‘some indicia of an arguable political bias mitted by the House.165 croachments of Congress . . . than they were

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As the Republican previously explained (in defending the power were too expansive, the Framers minority on the House Judiciary Committee Obama Administration against charges of feared that the Legislative Branch may in the Nixon impeachment inquiry ex- abuse of power) that ‘‘the President has the ‘‘hold [impeachments] as a rod over the Ex- plained, ‘‘[t]he whole tenor of the Framers’ ability to . . . strongly push back against ecutive and by that means effectually de- discussions, the whole purpose of their many any inquiry into either the motivations or stroy his independence.’’ 175 One key voice at careful departures from English impeach- support for his actions.’’ 196 the Constitutional Convention, Gouverneur ment practice, was in the direction of limits The Framers did not intend to expand the Morris, warned that, as they crafted a mech- and of standards.’’ 185 impeachment power infinitely by allowing anism to make the President ‘‘amenable to House Democrats’ theory also has no Congress to attack objectively lawful presi- Justice,’’ the Framers ‘‘should take care to grounding in the history of presidential im- dential conduct based solely on unwieldy in- provide some mode that will not make him peachments. Until now, the House of Rep- quiries into subjective intent. Under the dependent on the Legislature.’’ 176 To limit resentatives has never impeached a President Framers’ plan, impeachment was intended to the impeachment power, Morris argued that of the United States without alleging a vio- apply to objective wrongdoing as identified by only ‘‘few’’ ‘‘offences . . . ought to be im- lation of law—indeed, a crime. The articles offenses defined under existing law. As noted peachable,’’ and the ‘‘cases ought to be enu- of impeachment against President Clinton above, the Framers rejected maladministration as a ground for impeachment precisely merated & defined.’’ 177 specified charges of perjury and obstruction because it was ‘‘[s]o vague a term.’’ 197 In- Indeed, the debates over the text of the Im- of justice, both felonies under federal law.186 stead, they settled on ‘‘high Crimes and Mis- peachment Clause particularly reveal the In the Nixon impeachment inquiry, the arti- demeanors,’’ 198 as a term with a ‘‘limited Framers’ concern that ill-defined standards cles approved by the House Judiciary Com- could give free rein to Congress to utilize im- and technical meaning.’’ 199 ‘‘[H]igh Crimes mittee accused the President of obstructing and Misdemeanors,’’ as well as ‘‘Treason’’ peachment to undermine the Executive. As justice, among multiple other violations of 178 and ‘‘Bribery,’’ 200 all denote objectively explained above, when ‘‘maladministra- the law.187 And as explained above,188 the im- tion’’ was proposed as a ground for impeach- wrongful conduct as defined by existing law. peachment of President Johnson provides Each of the seven other references in the ment, it was rejected based on Madison’s the clearest evidence that a presidential im- concern that ‘‘[s]o vague a term will be Constitution to impeachment also supports peachment requires alleged violations of ex- the conclusion that impeachments must be equivalent to a tenure during [the] pleasure isting law. When the House Judiciary Com- 179 evaluated in terms of offenses against set- of the Senate.’’ Madison rightly feared mittee recommended impeaching Johnson in that a nebulous standard could allow Con- tled law: The Constitution refers to ‘‘Convic- 1867 based on allegations that included no 201 gress to use impeachment against a Presi- tion’’ for impeachable offenses twice and violations of law, the House rejected the rec- ‘‘Judgment in Cases of Impeachment.’’ 202 It dent based merely on policy differences, ommendation.189 A majority in the House making it function like a parliamentary no- directs the Senate to ‘‘try all Impeach- was persuaded by the arguments of the mi- ments’’ 203 and requires the Chief Justice’s confidence vote. That would cripple the inde- nority on the Judiciary Committee, who ar- participation when the President is pendent Executive the Framers had crafted gued that ‘‘[t]he House of Representatives ‘‘tried.’’ 204 And it implies impeachable of- and recreate the Parliamentary system they may impeach a civil officer, but it must be fenses are ‘‘Crimes’’ and ‘‘Offenses’’ in the had expressly rejected. Circumscribing the done according to law. It must be for some of- Jury Trial Clause and the Pardon Clause, re- impeachment power to reach only existing, fence known to the law, and not created by spectively.205 These are all words that indi- defined offenses guarded against such misuse the fancy of the members of the House.’’ 190 180 cate violations of established law. The Fram- of the authority. Congress did not impeach President Johnson As Luther Martin, who had been a delegate ers’ words limited the impeachment power until the following year, when he was im- at the Constitutional Convention, summa- and, in particular, sought to ensure that impeached for violating the Tenure of Office peachment could not be used to attack a rized the point at the impeachment trial of Act.191 The history of presidential impeach- President based on mere policy differences. Justice Samuel Chase in 1804, ‘‘[a]dmit that ments provides no support for House Demo- Given their apprehensions about misuse of the House of Representatives have a right to crats’ vague ‘‘abuse of power’’ charge. the impeachment power, it is inconceivable impeach for acts which are not contrary to (b) House Democrats’ unprecedented theory that the Framers crafted a purely intent- law, and that thereon the Senate may con- based impeachment standard. Such a stand- vict and the officer be removed, you leave of impeachable offenses defined by subjective intent alone would permanently weak- ard would be so vague and malleable that en- your judges and all your other officers at the tirely permissible actions could lead to im- 181 en the presidency mercy of the prevailing party.’’ The Fram- peachment of a President (and potentially House Democrats’ conception of ‘‘abuse of ers prevented that dangerous result by lim- removal from office) based solely on a hos- power’’ is especially dangerous because it iting impeachment to defined offenses under tile Congress’s assessment of the President’s the law. rests on the even more radical claim that a subjective motives. If that were the rule, any House Democrats cannot reconcile their President can be impeached and removed President’s political opponents could take amorphous ‘‘abuse of power’’ standard with from office solely for doing something he is virtually any of his actions, mischaracterize the constitutional text simply by asserting allowed to do, if he did it for the ‘‘wrong’’ his motives after the fact, and misuse im- that, ‘‘[t]o the founding generation, abuse of subjective reasons. Under this view, impeach- peachment as a tool for political opposition power was a specific, well-defined of- ment can turn entirely on ‘‘whether the instead of as a safeguard against egregious 182 fense.’’ In fact, they conspicuously fail to President’s real reasons, the ones actually in presidential misconduct.206 As Republicans 192 provide any citation for that assertion. No- his mind at the time, were legitimate.’’ on the House Judiciary Committee during where have they identified any contempora- That standard is so malleable that it would the Nixon impeachment inquiry rightly ex- neous definition delimiting this purportedly permit a partisan House—like this one—to plained, ‘‘[a]n impeachment power exercised ‘‘well-defined’’ offense. attack virtually any presidential decision by without extrinsic and objective standards Nor can House Democrats shore up their questioning a President’s motives. By elimi- would be tantamount to the use of bills of 183 theory by invoking English practice. Ac- nating any requirement for wrongful con- attainder and ex post facto laws, which are cording to House Democrats, 400 years of duct, House Democrats have tried to make expressly forbidden by the Constitution and parliamentary history suggests that the par- thinking the wrong thoughts an impeachable are contrary to the American spirit of jus- ticular offenses charged in English impeach- offense. tice.’’ 207 ments can be abstracted into several cat- House Democrats’ theory of impeachment House Democrats justify their focus on egories of offenses, including one involving based on subjective motive alone is unwork- subjective motives based largely on a cherry- abuse of power.184 From there, they jump to able and constitutionally impermissible. picked snippet from a statement James the conclusion that ‘‘abuse of power’’ itself First, by making impeachment turn on Iredell made in the North Carolina ratifica- can be treated as an offense and that any nearly impossible inquiries into the subjec- tion debates.208 Iredell observed that ‘‘the fact pattern that could be described as show- tive intent behind entirely lawful conduct, President would be liable to impeachment ing abuse of power can be treated as an im- House Democrats’ standard would open vir- [if] . . . he had acted from some corrupt mo- peachable offense. But that entire method- tually every presidential decision to partisan tive or other.’’ 209 But nothing in that general ology is antithetical to the approach the attack based on questioning a President’s statement suggests that Iredell—let alone Framers took in defining the impeachment motives. As courts have repeatedly observed, the Framers or the hundreds of delegates power. The Framers sought to confine im- ‘‘[i]nquiry into the motives of elected offi- who ratified the Constitution in the states— peachable offenses within known bounds to cials can be both difficult and undesirable, subscribed to House Democrats’ current the- protect the Executive from arbitrary exer- and such inquiry should be avoided when ory treating impeachment as a roving li- cises of power by Congress. Indeed, the possible.’’ 193 Thus, for example, courts will cense for Congress to attack a President’s Framers expressly rejected vague standards not invalidate laws within Congress’s con- lawful actions based on subjective motive such as ‘‘maladministration’’ that had been stitutional authority based on allegations alone. To the contrary, in the very same used in England in order to constrain the im- about legislators’ motives.194 As constitu- speech, Iredell himself warned against the peachment power within defined limits. De- tional historian Raoul Berger has observed, dangers of allowing impeachment based on riving general categories from ancient this principle ‘‘is equally applicable to exec- assessments of subjective motive. He ex- English cases and using those categories as utive action within statutory or constitu- plained that there would often be divisions

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Manu- party, into a deliberate, wicked action.’’ 211 might have on the next election. And there facturing an impeachment out of such an as- That, he argued, should not be a basis for im- is nothing wrong with that. sertion ought to be dismissed out of hand. peachment.212 By making ‘‘personal political gain’’ an il- House Democrats’ abuse-of-power theory is House Democrats’ assertions that past licit motive for official action, House Demo- also profoundly anti-democratic. In assign- presidential impeachments provide support crats’ radical theory of impeachment would ing the Executive Power to the President, for their made-up impeachment-based-on- permit a partisan Congress to remove vir- the Constitution ensures that power is exer- subjective-motives-alone theory are also tually any President by questioning the ex- cised by a person who is democratically re- wrong.213 Contrary to their claims, neither tent to which his or her action was moti- sponsible to the people through a quadren- the Nixon impeachment inquiry nor the im- vated by electoral considerations rather nial election.232 This ensures that the people peachment of President Johnson supports than the ‘‘right’’ policy motivation. None of themselves will regularly and frequently their assertions. this has any basis in the constitutional text, have a say in the direction of the Nation’s In the Nixon impeachment inquiry, none of which specifies particular offenses as im- policy, including foreign policy. As a result, the articles recommended by the House Judi- peachable conduct. Just as importantly, removing a President on the ground that his ciary Committee was labeled ‘‘abuse of under such a rule, impeachments would turn foreign policy decisions were allegedly based power’’ or framed the charge in those terms. on unanswerable questions that ultimately on ‘‘illicit motives’’—because they failed to And it is simply wrong to say that the the- reduce to policy disputes—exactly what the conform to a purported ‘‘consensus’’ of ca- ory underlying the proposed articles was Framers saw as an impermissible basis for reer bureaucrats—would fundamentally sub- that President Nixon had taken permissible impeachment. For example, if it is impeach- vert the democratic principles at the core of actions with the wrong subjective motives. able conduct to act with too much of a view our Constitution. Article I alleged President Nixon obstructed toward electoral results, how much of a This very impeachment shows how anti- 214 justice, a clear violation of law. And Arti- focus on electoral results is too much, even democratic House Democrats’ theory really cle II asserted numerous breaches of the law. assuming that Congress could accurately is. Millions of Americans voted for President It claimed that President Nixon ‘‘violat[ed] disaggregate a President’s actual motives? Trump precisely because he promised to dis- the constitutional rights of citizens,’’ And how does one measure presidential mo- rupt the foreign policy status quo. He prom- ‘‘contraven[ed] the laws governing agencies tives against some unknowable standard of ised a new, ‘‘America First’’ foreign policy of the executive branch,’’ and ‘‘authorized the ‘‘right’’ policy result uninfluenced by that many in the Washington establishment and permitted to be maintained a secret in- considerations of political gain? That ques- derided. And the President has delivered, vestigative unit within the office of the tion, of course, quickly boils down to noth- bringing fresh and successful approaches to President . . . which unlawfully utilized the ing more than a dispute about the ‘‘right’’ foreign policy in a host of areas, including resources of the Central Intelligence Agency, policy in the first place. None of this pro- relations with NATO, China, Israel, and [and] engaged in covert and unlawful activi- vides any permissible basis for impeaching a North Korea. In particular, with respect to 215 ties.’’ Those allegations did not turn on President. Ukraine and elsewhere, his foreign policy has Third, aptly demonstrating why all of this describing permissible conduct that had sim- focused on ensuring that America does not leads to unconstitutional results, House ply been done with the wrong subjective mo- shoulder a disproportionate burden for var- 216 Democrats have invented standards for iden- tives. Instead, they charged unlawful con- ious international missions, that other coun- 217 tifying supposedly illicit presidential mo- duct. tries do their fair share, and that taxpayer House Democrats’ reliance on the Johnson tives that turn the Constitution upside dollars are not squandered. House Demo- impeachment fares no better. According to down. According to House Democrats, they crats’ theory that a purported inter-agency House Democrats, the Johnson impeachment can show that President Trump acted with ‘‘consensus’’ among career bureaucrats can supports their concocted impeachment- illicit motives because, in their view, the be used to show improper motive is an af- based-on-subjective-motives theory under President supposedly ‘‘disregarded United front to the tens of millions of American the following tortured logic: The articles of States foreign policy towards Ukraine,’’ 225 citizens who voted for President Trump’s for- impeachment actually adopted by the House ignored the ‘‘official policy’’ 226 that he had eign policy and not a continuation of the charged the violation of the Tenure of Office been briefed on, and ‘‘ignored, defied, and Washington establishment’s policy pref- Act.218 But that was not the ‘‘real’’ reason confounded every agency within the Execu- erences. the House sought to remove President John- tive Branch’’ with his decisions on son. The real reason was that he had under- Ukraine.227 These assertions are preposterous 2. House Democrats’ assertions that the mined Reconstruction. And, in House Demo- and dangerous. They fundamentally mis- framers particularly intended impeach- crats’ view, his improper desire to thwart understand the assignment of power under ment to guard against ‘‘foreign entangle- Reconstruction was actually a better reason the Constitution. ments’’ and ‘‘corruption’’ of elections are to impeach him.219 For support, House Demo- Article II of the Constitution states that makeweights that distort history crats cite a recent book co-authored by one ‘‘the executive Power shall be vested in a House Democrats try to shore up their of their own staffers (Joshua Matz) and Lau- President’’—not Executive Branch staff.228 made-up theory of abuse of power by pre- rence Tribe.220 This is nonsense. Nothing in The vesting of the Executive Power in the tending that anything related to what they the Johnson impeachment involved charging President makes him ‘‘the sole organ of the call ‘‘foreign entanglements’’ or elections the President with taking objectively per- nation in its external relations, and its sole strikes at the core of impeachment.233 This missible action for the wrong subjective rea- representative with foreign nations.’’ 229 He novel accounting of the concerns animating sons. Johnson was impeached for violating a sets foreign policy for the Nation, and in the impeachment power conveniently allows law passed by Congress.221 Moreover, Presi- ‘‘this vast external realm,’’ the ‘‘President House Democrats to claim that their allega- dent Johnson was acquitted, despite what- alone has the power to speak . . . as a rep- tions just happen to raise the perfect storm ever subjective motives he might have had. resentative of the nation.’’ 230 The Constitu- of impeachable conduct, as if their accusa- House Democrats cannot conjure a precedent tion assigns him control over foreign policy tions show that ‘‘President Trump has real- out of thin air by simply imagining that the precisely to ensure that the Nation speaks ized the Framers’ worst nightmare.’’ 234 That Johnson impeachment articles said some- with one voice.231 His decisions are authori- is preposterous on its face. The Framers thing other than what they said.222 tative regardless of the judgments of the were concerned about the possibility of trea- If the Johnson impeachment established unelected bureaucrats participating in an son and the danger that foreign princes with any precedent relevant here, it is that the inter-agency process that exists solely to fa- vast treasuries at their disposal might actu- House refused to impeach the President until cilitate his decisions, not to make decisions ally buy off the Chief Executive of a fledg- he clearly violated the letter of the law. As for him. Any theory of an impeachable of- ling, debt-ridden republic situated on the one historian has explained, despite wide- fense that turns on ferreting out supposedly seaboard of a vast wilderness continent— spread anger among Republicans about ‘‘constitutionally improper’’ motives by most of which was still claimed by European President Johnson’s actions undermining measuring the President’s policy decisions powers eager to advance their imperial inter- Reconstruction, until Johnson violated the against a purported ‘‘interagency consensus’’ ests. Their worst nightmare was not the Tenure of Office Act, ‘‘[t]he House had re- formed by unelected staff is a transparent President of the United States-as-superpower fused to impeach [him] . . . at least in part and impermissible inversion of the constitu- having an innocuous conversation with the because many representatives did not believe tional structure. leader of a comparatively small European re- he had committed a specific violation of It requires no leap of imagination to see public and disclosing the conversation for all law.’’ 223 the absurd consequences that would follow Americans to see. Second, House Democrats’ theory raises from House Democrats’ theory. Imagine a To peddle their distortion of history, particular dangers because it makes ‘‘per- President who, in an election year, deter- House Democrats cobble together snippets sonal political benefit’’ one of the ‘‘forbidden mined to withdraw troops from an overseas from the Framers’ discussions on various dif- reasons’’ for taking government action.224 deployment to have them home by Christ- ferent subjects and try to portray them as if

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00034 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.047 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S321 they define the contours of impeachable of- they feared, there is no reason to think that of President, it was essential for the Presi- fenses. As explained above, the Framers in- the Impeachment Clause must be stretched dent, like past occupants of the Office, to tended a limited impeachment power. But and contorted to reach other conduct simply protect Executive Branch confidentiality when House Democrats find the Framers because it has to do with something foreign. against House Democrats’ overreaching in- raising concerns about any risks to the new The Framers’ approach to treason, in par- trusions. government, they leap to the conclusion that ticular, suggests that House Democrats’ The President’s proper concern for requir- those concerns must identify impeachable logic is wrong. The Framers defined treason ing the House to proceed by lawful measures offenses. Such transparently results-driven in the Constitution to limit it.244 Nothing and for protecting long-settled Executive historical analysis is baseless and provides about their concern for limiting treason sug- Branch confidentiality interests cannot be no support for House Democrats’ drive to re- gests that a general concern about foreign twisted into an impeachable offense. To the move the President. betrayal should be used as a ratchet to ex- contrary, House Democrats’ charge of ‘‘ob- First, House Democrats mangle history in pand the scope of the Impeachment Clause struction’’ comes nowhere close to the con- offering ‘‘foreign entanglements’’ as a type and make it infinitely malleable so that all stitutional standard. It does not charge any of impeachable offense. Their approach con- charges cast in the vague language of ‘‘for- violation of established law. More impor- fuses two different concepts—entangling the eign entanglements’’ should automatically tant, it is based on the fundamentally mis- country in alliances and fears of foreign gov- state impeachable conduct. taken premise that the President can be re- ernments buying influence—to create a false Second, House Democrats point to the moved from office for invoking established impression that there is something insidious Founders’ concerns that a President might legal defenses and immunities against defec- about anything involving a foreign connec- bribe electors to stay in office.245 But that tive subpoenas from House committees. tion that should make it a particularly ripe specific concern does not mean, as they The President does not commit ‘‘obstruc- ground for impeachment. claim, that anything to do with an election tion’’ by asserting legal rights and privi- When the Framers spoke about foreign was a central concern of impeachment and leges.250 And House Democrats turn the law ‘‘entanglements’’ they had a particular dan- that impeachment is the tool the Framers on its head with their unprecedented claim ger in mind. That was the danger of the created to deal with it. The historical evi- that it is ‘‘obstruction’’ for anyone to assert young country becoming ensnared in alli- dence shows the Framers had a specific con- rights that might require the House to try to ances that would draw it into conflicts be- cern with presidential candidates bribing establish the validity of its subpoenas in tween European powers. When President members of the Electoral College.246 That court.251 House Democrats’ radical theories Washington asserted that ‘‘history and expe- concern was addressed by the clear terms of are especially misplaced where, as here, the rience prove that foreign influence is one of the Constitution, which made ‘‘Bribery’’ a legal principles invoked by the President and the most baneful foes of republican govern- basis for impeachment.247 Nothing in House other Administration officials are critical ment,’’ he was not warning about Chief Ex- Democrats’ sources suggests that simply be- 235 for preserving the separation of powers—and ecutives meriting removal from office. He cause one grave form of corruption related to was advocating for neutrality in American based on advice from the Department of Jus- elections became a basis for impeachment, tice’s Office of Legal Counsel. foreign policy, and in particular, with re- then any accusations of any sort related to 236 Treating a disagreement regarding con- spect to Europe. One of President Wash- elections necessarily must fall within the ington’s most controversial decisions was es- stitutional limits on the House’s authority ambit of impeachable conduct. That is sim- to compel documents or testimony as an im- tablishing American neutrality in the esca- ply an invention of the House Democrats. lating war between Great Britain and revolu- peachable offense would do permanent dam- tionary France.237 He then used his Farewell B. House Democrats’ Charge of ‘‘Obstruc- age to the Constitution’s separation of pow- Address to argue against ‘‘entangl[ing] tion’’ Fails Because Invoking Constitu- ers and our structure of government. It [American] peace and prosperity in the toils tionally Based Privileges and Immunities would allow the House of Representatives to of European ambition, rivalship, interest, to Protect the Separation of Powers Is Not declare itself supreme and turn any disagree- humor [and] caprice.’’ 238 Again, he was warn- an Impeachable Offense ment with the Executive over informational ing about the United States being drawn into House Democrats’ charge of ‘‘obstruction’’ demands into a purported basis for removing foreign alliances that would trap the young is both frivolous and dangerous. At the out- the President from office. As Professor country in disputes between European pow- set, the very suggestion that President Turley has explained, ‘‘Basing impeachment ers. House Democrats’ false allegations here Trump has somehow ‘‘obstructed’’ Congress on this obstruction theory would itself be an 252 have nothing to do with the danger of a for- is preposterous. The President has been ex- abuse of power . . . by Congress’’ eign entanglement as the Founders under- traordinarily transparent about his inter- 1. President Trump acted properly—and upon stood that term, and the admonitions from actions with President Zelensky. Imme- advice from the Department of Justice—by the Founding era they cite are irrelevant.239 diately after questions arose, President asserting established legal defenses and The Framers were also concerned about Trump took the unprecedented step of de- immunities to resist legally defective de- the distinct problem of foreign attempts to classifying and releasing the full record of mands for information from House com- interfere in the governance of the United his July 25 telephone call, and he later re- mittees States.240 But on that score, they identified leased the transcript of an April 21, 2019 call House Democrats’ purported ‘‘obstruction’’ particular concerns based on historical ex- as well. It is well settled that the President charge is based on three actions by the amples and addressed them specifically. has a virtually absolute right to maintain President or Executive Branch officials act- They were concerned about officials being the confidentiality of his diplomatic commu- ing under his authority, each of which was 248 bought off by foreign powers. Gouverneur nications with foreign leaders. And keep- entirely proper and taken only after securing Morris articulated this concern: ‘‘Our Execu- ing such communications confidential is es- advice from OLC. tive . . . may be bribed by a greater interest sential for the effective conduct of diplo- to betray his trust; and no one would say macy, because it ensures that foreign leaders (a) Administration officials properly refused that we ought to expose ourselves to the dan- will be willing to talk candidly with the to comply with subpoenas that lacked au- ger of seeing the first Magistrate in foreign President. Nevertheless, after weighing such thorization from the House pay without being able to guard [against] it concerns, the President determined that It was entirely proper for Administration by displacing him.’’ 241 He specifically men- complete transparency was important in this officials to decline to comply with subpoenas tioned the bribe King Louis XIV of France case, and he released both call records so issued pursuant to a purported ‘‘impeach- had paid to King Charles II of England to in- that the American people could judge for ment inquiry’’ before the House of Rep- fluence English policy.242 This is why ‘‘Brib- themselves exactly what he said to the resentatives had authorized any such in- ery’’ and ‘‘Treason’’ were made impeachable President of Ukraine. That should have put quiry. No House committee can issue sub- offenses. The Framers also addressed the an end to this inquiry before it began. The poenas pursuant to the House’s impeachment danger of foreign inducements directed at President was not ‘‘obstructing’’ when he power without authorization from the House the President by barring his acceptance of freely released the central piece of evidence itself. On precisely that basis, OLC deter- ‘‘any present, Emolument, Office, or Title’’ in this case. mined that all subpoenas issued before the in the Foreign Emoluments Clause.243 House The President also was not ‘‘obstructing’’ adoption of House Resolution 660 on October Democrats’ Articles of Impeachment make when he rightly decided to defend estab- 31, 2019, purportedly to advance an ‘‘im- no allegations under any of these specific of- lished Executive Branch confidentiality in- peachment inquiry,’’ were unauthorized and fenses identified in the Constitution. terests, rooted in the separation of powers, invalid.253 Numerous witness subpoenas and In the end, House Democrats’ ahistorical against unauthorized efforts to rummage all of the document subpoenas cited in Arti- arguments rest on a non sequitur. They es- through Executive Branch files and to de- cle II are invalid for this reason alone. These sentially argue that because the Framers mand testimony from some of the Presi- invalid subpoenas imposed no legal obliga- showed concern about the Nation being be- dent’s closest advisers. As the Supreme tion on the recipients, and it was entirely trayed in these specific provisions, any accu- Court has explained, the privilege protecting lawful for the recipients not to comply with sations that relate to foreign influence must the confidentiality of presidential commu- them.254 The belated adoption of House Reso- equally amount to impeachable conduct. nications ‘‘is fundamental to the operation lution 660 on October 31 to authorize the in- That simply does not follow. To the con- of Government and inextricably rooted in quiry essentially conceded that a vote was trary, since the Framers made specific provi- the separation of powers under the Constitu- required and did nothing to remedy the in- sions for the types of foreign interference tion.’’ 249 For future occupants of the Office quiry’s invalid beginnings.

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00035 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.076 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S322 CONGRESSIONAL RECORD — SENATE January 21, 2020 (i) A delegation of authority from the House such as the power to hold hearings and to peachment. To paraphrase the Supreme is required before any committee can in- issue subpoenas. Each committee’s specific Court, ‘‘when considered against 200 years of vestigate pursuant to the impeachment investigative powers under Rule XI are re- settled practice, we regard these few scat- power stricted to Rule X’s jurisdictional limits 265— tered examples as anomalies.’’ 278 In addition, No committee can exercise authority as- which do not include impeachment.266 as explained above,279 ‘‘[t]he impeachment of signed by the Constitution to the House ab- Rule X’s history confirms that the absence a federal judge does not provide the same sent a clear delegation of authority from the of any reference to ‘‘impeachment’’ was de- weighty considerations as the impeachment House itself.255 The Constitution assigns the liberate. When the House considered a num- of a president.’’ 280 Setting aside these three ‘‘sole Power of Impeachment’’ 256 to the ber of proposals between 1973 and 1974 to outliers, precedent shows that a House vote House as a chamber—not to individual Mem- transfer power from the House to commit- is required to initiate an impeachment in- bers or subordinate units. Assessing the va- tees and to remake committee jurisdiction, quiry for judges and subordinate executive lidity of a committee’s inquiry and sub- the House specifically rejected an initial pro- officials. At least the same level of process poenas thus requires ‘‘constru[ing] the scope posal that would have added ‘‘impeach- must be used to begin the far more serious of the authority which the House of Rep- ments’’ to the Judiciary Committee’s juris- process of inquiring into impeachment of the resentatives gave to’’ the committee.257 diction.267 Instead, the House amended the President. Where a committee cannot demonstrate that rules to provide standing authorization for (iv) The Subpoenas Issued Before House Res- its inquiries have been authorized by an af- committees to use investigatory powers only olution 660 Were Invalid and Remain In- firmative vote of the House assigning the pursuant to their legislative jurisdiction 268 valid Because the Resolution Did Not Rat- committee authority, the committee’s ac- (previously, for example, a separate House ify Them tions are ultra vires, and its subpoenas have vote was required to delegate subpoena au- The impeachment inquiry was unauthor- no force.258 thority to a particular committee for a par- ized and all the subpoenas issued by House 269 To pursue an ‘‘impeachment inquiry,’’ and ticular topic). Thus, after these amended committees in pursuit of the inquiry were to compel testimony and the production of rules were adopted, committees were able to therefore invalid. OLC reached the same con- begin investigations within their legislative documents for such an inquiry, the com- clusion.281 The vast bulk of the proceedings mittee must be authorized to conduct an in- jurisdiction and issue subpoenas without se- in the House were thus founded on the use of quiry pursuant to the House’s impeachment curing House approval, but that resolution unlawful process to compel testimony. Until power. That power is distinct from the power did not authorize self-initiated impeachment now, House Democrats have consistently to legislate assigned to Congress in Article I, inquiries. Indeed, it was precisely because agreed that a vote by the House is required Section 1. Congress’s power to investigate in ‘‘impeachment was not specifically included to authorize an impeachment inquiry. In support of its power to legislate is limited to within the jurisdiction of the House Judici- 2016, House Democrats on the Judiciary inquiring into topics ‘‘on which legislation ary Committee’’ that then-Chairman Peter Committee agreed that ‘‘[i]n the modern era, 259 could be had.’’ An impeachment inquiry is Rodino announced that the ‘‘Committee on the impeachment process begins in the not subject to the same constraint. An im- the Judiciary will have to seek subpoena House of Representatives only after the peachment inquiry does not aid Congress in power from the House’’ for the Nixon im- House has voted to authorize the Judiciary 270 considering legislation, but instead requires peachment inquiry. The House majority, Committee to investigate whether charges minority, and Parliamentarian, as well as reconstructing past events to examine the are warranted.’’ 282 As current Judiciary conduct of specific persons. That differs from the Department of Justice, all agreed on this Committee member Rep. Hank Johnson said 271 the forward-looking nature of any legislative point. in 2016, ‘‘[t]he impeachment process cannot 260 investigation. Given these differences, a (iii) More than 200 years of precedent con- begin until the 435 Members of the House of committee seeking to investigate pursuant firm that the House must vote to begin an Representatives adopt a resolution author- to the impeachment power must show that impeachment inquiry izing the House Judiciary Committee to con- the House has actually authorized the com- Historical practice confirms the need for a duct an independent investigation.’’ 283 As mittee to use that specific power. House vote to launch an impeachment in- Chairman Nadler put it, an impeachment in- The Speaker of the House cannot treat the quiry. Since the Founding of the Republic, quiry without a House vote is ‘‘an obvious House’s constitutional power as her own to the House has never undertaken the solemn sham’’ and a ‘‘fake impeachment,’’ 284 or as distribute to committees based on nothing responsibility of a presidential impeachment House Manager Rep. Hakeem Jeffries ex- more than her own say-so. That would exac- inquiry without first authorizing a par- plained, it is ‘‘a political charade,’’ ‘‘a erbate the danger of a minority faction in- ticular committee to begin the inquiry. That sham,’’ and ‘‘a Hollywood-style produc- voking the power of impeachment to launch has also been the House’s nearly unbroken tion.’’ 285 disruptive inquiries without any constitu- practice for every judicial impeachment for These invalid subpoenas remain invalid tional legitimacy from a majority vote in two hundred years. today. House Resolution 660 merely directed the House. It would also permit a minority In every prior presidential impeachment the six investigating committees to ‘‘con- to seize the House’s formidable investigative inquiry, the House adopted a resolution ex- tinue their ongoing investigations’’ 286 and powers to pursue divisive investigations for plicitly authorizing the committee to con- did not even purport to ratify retroactively partisan purposes that a House majority duct the investigation before any compul- the nearly two dozen invalid subpoenas might not be willing to authorize. House sory process was used.272 In President Clin- issued before it was adopted,287 as OLC has Democrats have not identified any credible ton’s impeachment, the House Judiciary explained.288 The House knows how to use support for their theory of authorization by Committee explained that the resolution was language effectuating ratification when it 261 press conference. a constitutional requirement ‘‘[b]ecause im- wants to—indeed, it used such language less (ii) Nothing in existing House rules author- peachment is delegated solely to the House than six months ago in a resolution that ized any committee to pursue an impeach- of Representatives by the Constitution’’ and ‘‘ratifie[d] . . . all subpoenas previously ment inquiry thus ‘‘the full House of Representatives issued’’ by a committee.289 The omission of Nothing in the House Rules adopted at the should be involved in critical decision mak- anything similar from House Resolution 660 beginning of this Congress delegated authoring regarding various stages of impeach- means that subpoenas issued before House ity to pursue an impeachment inquiry to any ment.’’ 273 As the Judiciary Committee Resolution 660 remain invalid, and the entire committee. In particular, Rule X, which de- Chairman explained during President Nix- fact-gathering process pursuant to those sub- fines each committee’s jurisdiction, makes on’s impeachment, an ‘‘authoriz[ation] . . . poenas was ultra vires. clear that it addresses only committees’ resolution has always been passed by the Contrary to false claims from House Demo- ‘‘legislative jurisdiction’’—not impeach- House’’ for an impeachment inquiry and ‘‘is crats, the President did not ‘‘declare[] him- ment.262 Rule X does not assign any com- a necessary step.’’ 274 Thus, he recognized self above impeachment,’’ reject ‘‘any efforts mittee any authority whatsoever with re- that, without authorization from the House, at accommodation or compromise,’’ or de- spect to impeachment. It does not even men- ‘‘the committee’s subpoena power [did] not clare ‘‘himself and his entire branch of gov- tion impeachment. And that silence is not now extend to impeachment.’’ 275 Indeed, ernment exempt from subpoenas issued by accidental. Rule X devotes more than 2,000 with respect to impeachments of judges or the House.’’ 290 The White House simply made words to describing the committees’ areas of lesser officers in the Executive Branch, the clear that Administration officials should jurisdiction in detail. The six committees requirement that the full House pass a reso- not participate in House Democrats’ inquiry that Speaker Pelosi instructed to take part lution authorizing an impeachment inquiry ‘‘under these circumstances’’—meaning a in the purported impeachment inquiry here traces back to the first impeachments under process that was unauthorized under the have their jurisdiction defined down to the the Constitution.276 House’s own rules and suffered from the most obscure legislative issues, ranging from That historical practice has continued into other serious defects.291 The President’s the Judiciary Committee’s jurisdiction over the modern era, in which there have been counsel also made it clear that, if the inves- ‘‘[s]tate and territorial boundary lines’’ 263 to only three impeachments that did not begin tigating committees sought to proceed under the Oversight Committee’s responsibility for with a House resolution authorizing an in- their oversight authorities, the White House ‘‘[h]olidays and celebrations.’’ 264 But Rule X quiry. Each of those three outliers involved stood ‘‘ready to engage in that process as [it] does not assign any committee authority re- impeachment of a lower court judge during a ha[s] in the past, in a manner consistent garding impeachment. Neither does Rule short interlude in the 1980s.277 Those outliers with well-established bipartisan constitu- XI’s grant of specific investigative powers, provide no precedent for a presidential im- tional protections.’’ 292 It was Chairman

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00036 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.078 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S323 Schiff and his colleagues who refused to en- ideas, and ‘‘[h]uman experience teaches that counsel, an Executive Branch employee gage in any accommodation process with the those who expect public dissemination of might not be able to determine when a ques- White House. their remarks may well temper candor with tion invaded a privileged area.320 It is the (b) The President Properly Asserted Immu- a concern for appearances and for their own vital role of agency counsel to ensure that nity of His Senior Advisers From Com- interests to the detriment of the decision- constitutionally based confidentiality inter- pelled Congressional Testimony making process.’’ 306 Protecting the confiden- ests are protected. Congressional rules do The President also properly directed his tiality of communications ensures the Presi- not override these constitutional principles, 307 senior advisers not to testify in response to dent’s ability to receive candid advice. and there is no legitimate reason for House Second, there can be no dispute that the Democrats to seek to deprive these officials subpoenas.293 Those subpoenas suffered from matters at issue here implicate national se- 321 a separate infirmity: they were unenforce- of the assistance of appropriate counsel. curity and foreign policy. As Deputy Na- The important role of agency counsel in able because the President’s senior advisers tional Security Adviser Kupperman has ex- congressional inquiries has been recognized are immune from compelled testimony be- plained, House Democrats were ‘‘seeking tes- by administrations of both political parties. fore Congress.294 Consistent with the long- timony relating to confidential national se- During the Obama Administration, for in- standing position of the Executive Branch, curity communications concerning stance, OLC stated that exclusion of agency OLC advised the Counsel to the President Ukraine.’’ 308 But OLC has established that counsel ‘‘could potentially undermine the that those senior advisers (the Acting Chief ‘‘immunity is particularly justified’’ where a Executive Branch’s ability to protect its of Staff, the Legal Advisor to the National senior official’s ‘‘duties concern national se- confidentiality interests in the course of the Security Council, and the Deputy National curity’’ or ‘‘relations with a foreign govern- constitutionally mandated accommodation Security Advisor) were immune from the ment’’ 309—subject areas where the Presi- process, as well as the President’s constitu- subpoenas issued to them.295 tional authority to consider and assert exec- Across administrations of both political dent’s authority is at its zenith under the 310 As the Supreme Court ex- utive privilege where appropriate.’’ 322 parties, OLC ‘‘has repeatedly provided for Constitution. plained in the ‘‘courts Requiring agency counsel to be present nearly five decades’’ that ‘‘Congress may not United States v. Nixon, have traditionally shown the utmost def- when Executive Branch employees testify constitutionally compel the President’s sen- erence to Presidential responsibilities’’ for does not raise any insurmountable problems ior advisers to testify about their official du- foreign policy and national security, and for congressional information gathering. To 296 For example, President Obama as- ties.’’ the contrary, as recently as April 2019, the serted the same immunity for a senior ad- claims of privilege in this area thus receive a higher degree of deference than invoca- House Committee on Oversight and Govern- viser in 2014.297 Similarly, during the Clinton ment Reform and the Trump Administration administration, Attorney General Janet tions of ‘‘a President’s generalized interest 311 were able to work out an accommodation Reno opined that ‘‘immediate advisers’’ to in confidentiality.’’ The House’s inquiry involved communica- that satisfied both an information request the President are immune from being com- tions with a foreign leader and the develop- and the need to have agency counsel present pelled to testify before Congress, and that ment of foreign policy toward a foreign for an interview. In that case, after initially the ‘‘the immunity such advisers enjoy from country. There are few areas where the threatening contempt proceedings over a dis- testimonial compulsion by a congressional President’s powers under the Constitution pute, the late Chairman Elijah Cummings al- committee is absolute and may not be are greater and his obligation to protect in- lowed White House attorneys to attend a overborne by competing congressional inter- ternal Executive Branch deliberations more transcribed interview of the former Director ests.’’ 298 She explained that ‘‘compelling one profound. of the White House Personnel Security Of- of the President’s immediate advisers to tes- Third, House Democrats were seeking de- fice.323 House Democrats could have elimi- tify on a matter of executive decision-mak- liberative process information. For instance, nated a significant legal defect in their sub- ing would . . . raise serious constitutional the committees requested White House docu- poenas simply by following Chairman Cum- problems, no matter what the assertion of con- ments reflecting internal deliberations about mings’ example. They did not take this step, gressional need.’’ 299 foreign aid, the delegation to President so the Administration properly accepted the This immunity exists because senior advis- Zelensky’s inauguration, and potential meet- advice of OLC that House Democrats’ actions ers ‘‘function as the President’s alter ings with foreign leaders.312 Courts have long were unconstitutional and directed witnesses ego.’’ 300 Allowing Congress to summon the recognized that the ‘‘deliberative process not to appear without agency counsel President’s senior advisers would be tanta- privilege’’ applies across the Executive present. mount to permitting Congress to subpoena Branch and protects ‘‘materials that would the President, which would be intolerable 2. Asserting legal defenses and immunities reveal advisory opinions, recommendations under the Constitution: ‘‘Congress may no grounded in the constitution’s separation and deliberations comprising part of a proc- more summon the President to a congres- of powers is not an impeachable offense ess by which governmental decisions and sional committee room than the President House Democrats’ theory that it is ‘‘ob- policies are formulated.’’ 313 The privilege may command Members of Congress to ap- struction’’ for the President to assert legal prevents ‘‘injury to the quality of agency de- pear at the White House.’’ 301 rights—especially rights and immunities cisions by allowing government officials In addition, immunity is essential to pro- grounded in the separation of powers—turns freedom to debate alternative approaches in tect the President’s ability to secure candid the law on its head and would do permanent private,’’ 314 and the privilege has been con- and confidential advice and have frank dis- damage to the structure of our government. sistently recognized by administrations of cussions with his advisers. It thus serves, in (a) Asserting Legal Defenses and Privileges both political parties.315 part, to protect the same interests that un- Is Not ‘‘Obstruction.’’ derlie Executive Privilege.302 As the Supreme (c) Administration officials properly in- Under fundamental principles of our legal Court has explained, the protections for con- structed employees not to testify before system, asserting legal defenses cannot be fidentiality embodied in the doctrine of Ex- committees that improperly excluded labeled unlawful ‘‘obstruction.’’ In a govern- ecutive Privilege are ‘‘fundamental to the agency counsel ment of laws, asserting legal defenses is a operation of Government and inextricably Subpoenas for testimony from other Exec- fundamental right. As the Supreme Court rooted in the separation of powers under the utive Branch officials suffered from a dis- has explained: ‘‘[F]or an agent of the State Constitution.’’ 303 The subpoenas issued to tinct flaw. They impermissibly demanded to pursue a course of action whose objective the President’s senior advisers in this in- that officials testify without agency counsel is to penalize a person’s reliance on his legal quiry necessarily implicated three core areas present.316 OLC has determined that congres- rights is ‘patently unconstitutional.’ ’’ 324 As of Executive Privilege—presidential commu- sional committees ‘‘may not bar agency Harvard Law Professor Laurence Tribe cor- nications, national security and foreign pol- counsel from assisting an executive branch rectly explained in 1998, the same basic prin- icy information, and deliberative process. witness without contravening the legitimate ciples apply in impeachment: First, one of the House Democrats’ obvious prerogatives of the Executive Branch,’’ and The allegations that invoking privileges objectives was to find out about presidential that attempting to enforce a subpoena while and otherwise using the judicial system to communications. The document subpoena barring agency counsel ‘‘would be unconsti- shield information . . . is an abuse of power sent to Acting White House Chief of Staff tutional.’’ 317 As OLC explained, that prin- that should lead to impeachment and re- Mulvaney, for instance, sought materials re- ciple applies in the context of the House’s moval from office is not only frivolous, but flecting the President’s discussions with ad- purported impeachment inquiry just as it ap- also dangerous.325 visers,304 and Chairman Schiff’s report spe- plies in more routine congressional oversight Similarly, in 1998, now-Chairman Nadler of cifically identified documents that House requests.318 the House Judiciary Committee agreed that Democrats sought, including ‘‘briefing mate- The requirement for congressional com- a president cannot be impeached for assert- rials for President Trump,’’ a ‘‘presidential mittees to permit agency counsel to attend ing a legal privilege. As he put it, ‘‘the use decision memo,’’ and presidential call depositions of Executive Branch officials is of a legal privilege is not illegal or impeach- records.305 firmly grounded in the President’s constitu- able by itself, a legal privilege, executive Courts have long recognized constitutional tional authorities ‘‘to protect privileged in- privilege.’’ 326 limits on Congress’s ability to obtain presi- formation from disclosure’’ and to ‘‘control House Democrats, however, ran roughshod dential communications. As the Supreme the activities of subordinate officials within over these principles. They repeatedly Court has explained, executive decision- the Executive Branch.’’ 319 As OLC has ex- threatened Executive Branch officials with making requires the candid exchange of plained, without the assistance of agency obstruction charges if the officials dared to

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00037 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.079 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S324 CONGRESSIONAL RECORD — SENATE January 21, 2020 assert legal rights against defective sub- must automatically be obeyed on pain of im- his predecessors. As Professor Turley ex- poenas. They claimed that any ‘‘failure or peachment would undermine the plained, ‘‘[i]f this Committee elects to seek refusal to comply with [a] subpoena, includ- foundational premise that the Legislative impeachment on the failure to yield to con- ing at the direction or behest of the Presi- and Executive Branches are coequal gressional demands in an oversight or im- dent or others at the White House, shall con- branches of the government, neither of peachment investigation, it will have to dis- stitute evidence of obstruction.’’ 327 Even which is subservient to the other. As Madi- tinguish a long line of cases where prior worse, Chairman Schiff made the remarkable son explained, where the Executive and the presidents sought . . . [judicial] review while claim that any action ‘‘that forces us to liti- Legislative Branches come into conflict withholding witnesses and documents.’’ 351 gate or have to consider litigation, will be ‘‘neither of them, it is evident, can pretend House Democrats fare no better in claim- considered further evidence of obstruction of to an exclusive or superior right of settling ing that President Trump announced a more justice.’’ 328 Those assertions turn core prin- the boundaries between their respective pow- ‘‘categorical’’ refusal to cooperate with 352 ciples of the law inside out. ers.’’ 339 That is why the courts have insisted House demands than any past president. That claim misunderstands the law and mis- (b) House Democrats’ Radical Theory of ‘‘Ob- on an accommodations process by which the two branches work to reach a compromise in represents both the President’s conduct and struction’’ Would Do Grave Damage to the history. On the law, there is nothing imper- Separation of Powers which the interest of each branch is addressed.340 House Democrats, by contrast, missible about asserting rights consistently More important, in the context of House have declared the House supreme not only and ‘‘categorically.’’ There is no requirement demands for information from the Executive over the Executive Branch, but also over the for a President to cede Executive Branch Branch, House Democrats’ radical theory Judicial Branch, by baldly proclaiming that, confidentiality interests some of the time that asserting legal privileges should be whenever a committee chairman invokes the lest he be too ‘‘categorical’’ in their defense. treated immediately as impeachable ‘‘ob- possibility of impeachment, the House itself On the facts, the President did not issue a struction’’ would do lasting damage to the is the sole judge of its own powers, because categorical refusal. As noted above, the separation of powers. (in their view) ‘‘the Constitution gives the Counsel to the President made clear to The Legislative and Executive Branches House the final word.’’ 341 House Democrats that, if they sought to pur- have frequently clashed on questions of con- House Democrats’ theory is unprecedented sue regular oversight, the Administration stitutional interpretation, including on and dangerous for our structure of govern- would ‘‘stand ready to engage in that process issues surrounding congressional demands ment. There is no reason to believe that the as we have in the past, in a manner con- for information, since the very first presi- House, acting as judge in its own case, will sistent with well-established bipartisan con- dential administration.329 Such interbranch properly acknowledge limits on its own pow- stitutional protections.’’ 353 It was House conflicts are not evidence of an impeachable ers. That is evident from numerous cases in Democrats who refused to engage in the ac- offense. To the contrary, they are part of the which courts have refused to enforce con- commodation process. And as for history, constitutional design. The Founders antici- gressional subpoenas because they are in- past Presidents—such as Presidents Truman, pated that the branches might have differing valid or overbroad.342 More important, the Coolidge, and Jackson—did announce cat- interpretations of the Constitution and House Democrats’ theory means that the egorical refusals to cooperate at all with might come into conflict. As Madison ex- House could dangle the threat of impeach- congressional inquiries.354 None was im- plained, ‘‘the Legislative, Executive, and Ju- ment over every congressional demand for peached as a result. dicial departments . . . must, in the exercise information. Trivializing impeachment in Contrary to House Democrats’ assertions, of its functions, be guided by the text of the this manner would functionally transform it also makes no difference that the sub- Constitution according to its own interpreta- our government into precisely the type of poenas here were purportedly issued as part 355 tion of it.’’ 330 Friction between the branches parliamentary system the Framers rejected. of an impeachment inquiry. The defenses on such points is part of the separation of In his testimony before the House Judici- and immunities the President has asserted powers at work.331 ary Committee, Professor Turley rightly are grounded in the separation of powers and When the Legislative and Executive pointed out that, by ‘‘claiming Congress can protect confidentiality interests that are Branches disagree about their constitutional demand any testimony or documents and vital for the functioning of the Executive duties with respect to sharing information, then impeach any president who dares to go Branch. Those defenses and immunities do the proper and historically accepted solution to the courts,’’ House Democrats were ad- not disappear the instant the House opens an is not an article of impeachment. Instead, it vancing a position that was ‘‘entirely unten- impeachment inquiry. Just as with the judicial need for evidence in a criminal trial, the is for the branches to engage in a constitu- able and abusive [of] an impeachment.’’ 343 tionally mandated accommodation process Other scholars agree. In the Clinton im- House’s interest in investigating does not mean Executive Privilege goes away; in- in an effort to resolve the disagreement.332 peachment, for example, Professor Susan stead, ‘‘it is necessary to resolve those com- As courts have explained, this ‘‘[n]egotiation Low Bloch testified that ‘‘impeaching a peting interests in a manner that preserves between the two branches’’ is ‘‘a dynamic president for invoking lawful privileges is a the essential functions of each branch.’’ 356 If process affirmatively furthering the con- dangerous and ominous precedent.’’ 344 stitutional scheme.’’ 333 In the past, the House itself has agreed and anything, the interbranch conflict inherent Where the accommodation process fails, has recognized that a President cannot be in an impeachment inquiry heightens the Congress has other tools at its disposal to impeached for asserting a privilege. For ex- need for scrupulous adherence to principles address a disagreement with the Executive. ample, the House Judiciary Committee re- preserving each branch’s mechanisms for protecting its own legitimate sphere of au- Historically, the House has held Executive jected as a ground for impeachment the alle- thority. Branch officials in contempt.334 The process gation that President Clinton had ‘‘frivo- House Democrats’ insistence that the Con- of holding a formal vote of the House on a lously and corruptly asserted executive stitution assigns the House the ‘‘sole Power contempt resolution ensures that the House privilege’’ in connection with a criminal in- of Impeachment’’ 357 does nothing to advance 345 itself examines the subpoena in question and vestigation. Although the Committee be- their argument. That provision simply weighs in on launching a full-blown con- lieved that ‘‘the President ha[d] improperly makes clear that the power of impeachment 335 346 frontation with the Executive Branch. In exercised executive privilege,’’ it never- is assigned to the House and not anywhere addition, in recent times, the House of Rep- theless determined that this was not an ‘‘im- else. It does not make the power of impeach- 347 resentatives has taken the view that it may peachable offense[].’’ Similarly, over 175 ment a paramount authority that sweeps sue in court to obtain a judicial determina- years ago, the House rejected an attempt to away the constitutionally based privileges of tion of the validity of its subpoenas and an impeach President Tyler ‘‘for abusing his other branches.358 The fundamental 336 injunction to enforce them. powers based on his refusals to share with Madisonian principle that each branch must In this case, if House Democrats had actu- the House inside details on whom he was place checks on the others—that ‘‘[a]mbition ally been interested in securing information considering to nominate to various confirm- must be made to counteract ambition’’—con- (rather than merely adding a phony count to able positions and his vetoing of a wide tinues to apply even when the House invokes their impeachment charge sheet), the proper range of Whig-sponsored legislation.’’ 348 the power of impeachment.359 The mere fact course would have been to engage with the If House Democrats’ unprecedented theory that impeachment provides an ultimate Administration in one or more of these of ‘‘obstruction of Congress’’ were correct, check on the Executive does not mean the mechanisms for resolving the interbranch virtually every President could have been Framers made it a blank check for the House conflict.337 House Democrats rejected any ef- impeached. Throughout our history, Presi- to expand its power without limit. fort to pursue any of these avenues. Instead, dents have refused to share information with OLC has determined that Executive Privi- they simply announced that constitutional Congress. For example, when Congress inves- lege principles continue to apply in an im- accommodation, contempt, and litigation tigated Operation Fast and Furious during peachment inquiry.360 And scholars agree were all too inconvenient for their politi- the last administration, President Obama in- that Presidents may assert privileges in re- cally driven timetable and that they must voked Executive Privilege with respect to sponse to demands for information in an im- impeach the President immediately.338 documents responsive to a congressional sub- peachment inquiry, as Executive Privilege is Permitting that approach and treating the poena.349 Instead of a rash rush to impeach- ‘‘essential to the . . . dignified conduct of President’s response to the subpoenas as an ment, House Republicans secured a favorable the presidency and to the free flow of candid impeachable offense would do grave damage court ruling on President Obama’s assertion advice to the President.’’ 361 to the separation of powers. Suggesting that of privilege.350 President Trump’s actions are None of the excuses House Democrats have every congressional demand for information entirely consistent with such steps taken by offered justifies their unprecedented leap to

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Second, the impeachment in- As Professor Turley has explained, ‘‘[t]he de- tempted to probe into matters involving the quiry failed to provide due process to the cision to adopt an abbreviated schedule for conduct of foreign relations—matters President as required by the Constitution. the investigation and not to seek to compel squarely at the core of Executive Privilege See Part II.B. Contrary to 150 years of prece- such testimony [in court] is a strategic where the President’s powers and need to dent, the House excluded the President from choice of the House leadership. It is not the preserve confidentiality are at their apex. the process, denying him any right to par- grounds for an impeachment.’’ 363 Nor is their (c) The President cannot be removed from ticipate or defend himself. House Democrats claim about urgency credible. The only con- office based on a difference in legal opinion only pretended to provide the President any straint on timing here came from House House Democrats’ reckless ‘‘obstruction’’ rights after the entire factual record had Democrats’ self-imposed deadline to ensure theory is further flawed because it asks the been compiled in ex parte hearings and after that this impeachment charade would not Senate to remove a duly elected President Speaker Pelosi had predetermined the result drag on into the Democratic primary season. from office based on differences of legal opin- by instructing the Judiciary Committee to They also showed no urgency when they ion in which the President acted on the ad- draft articles of impeachment. Third, the waited four weeks to send the Articles of Im- vice of OLC. As explained above, the Framers House’s factual investigation was supervised peachment to the Senate. If House Demo- restricted impeachment to remedy solely by an interested fact witness, Chairman crats had cared about constitutional prece- egregious conduct that endangers the con- Schiff, who—after falsely denying it—admit- dent, they would have adhered to the ordi- stitutional structure of government. No mat- ted that his staff had been in contact with nary timetable for something as momentous ter how House Democrats try to dress up the whistleblower and had given him guid- as a presidential impeachment and would ance. See Part II.C. These three fundamental have taken the time to work out disputes their claim, a difference of legal opinion over an assertion of grounds to resist subpoenas errors infected the underpinnings of this with the Executive Branch on subpoenas. trial, and the Senate cannot constitutionally House Democrats arbitrarily decided to skip does not rise to that level. The Framers themselves recognized that differences of rely upon House Democrats’ tainted record that step. to reach any verdict other than acquittal. Next, Democrats falsely claim that that opinion could not justify impeachment. As Edmund Randolph explained in the Virginia See Part II.D. Nor is it the Senate’s role to ‘‘the House has never before relied on litiga- give House Democrats a ‘‘do-over’’ to develop tion to compel witness testimony or the pro- ratifying convention, ‘‘[n]o man ever thought of impeaching a man for an opin- the record anew in the Senate. These errors duction of documents in a Presidential im- require rejecting the Articles and acquitting peachment proceeding.’’ 364 But the House ion.’’ 374 the President. has filed such lawsuits, including just last Until now, that principle has prevailed, as year. In one case, the House made a court fil- the House has expressly rejected attempts to A. The Purported Impeachment Inquiry Was ing asserting that its impeachment inquiry impeach presidents based on legal disputes Unauthorized at the Outset and Compelled entitled it to certain grand jury information over assertions of privilege. As noted above, Testimony Based on Nearly Two Dozen In- on the same day the House Judiciary Com- in the Clinton impeachment, the House Judi- valid Subpoenas mittee issued its report.365 And in another ciary Committee rejected a draft article al- It is emblematic of the rush to judgment case purportedly based on an impeachment leging that President Clinton had ‘‘frivo- throughout the House’s slap-dash impeach- inquiry, House Democrats recently argued lously and corruptly asserted executive ment inquiry that Chairman Schiff’s inves- that, when at an impasse, disputes with the privilege.’’ 375 Even though the Committee tigating committees began issuing sub- Executive Branch can ‘‘only be resolved by concluded that ‘‘the President ha[d] improp- poenas and compelling testimony when they the courts.’’ 366 These filings are flatly incon- erly exercised executive privilege,’’ 376 it de- plainly had no authority to do so. The House sistent with House Democrats’ position here, cided that this was not an ‘‘impeachable committees built their one-sided record by where they claim that any impasse should offense[].’’ 377 The Committee concluded it purporting to compel testimony and docu- lead to impeachment. did not have ‘‘the ability to second guess the ments using nearly two dozen subpoenas Lastly, House Democrats also find no sup- rationale behind the President or what was ‘‘[p]ursuant to the House of Representatives’ port for their theory of ‘‘obstruction’’ in the in his mind in asserting that executive privi- impeachment inquiry.’’ 380 But their only au- Clinton and Nixon impeachment pro- lege’’ and it ‘‘ought to give . . . the benefit thority was Speaker Pelosi’s announcement ceedings.367 To the contrary, the Clinton proof the doubt [to the President] in the asser- at a press conference on September 24, 2019. ceedings establish conclusively that there is tion of executive privilege.’’ 378 As the Com- As a result, the inquiry and the almost two no plausible basis for an article of impeach- mittee recognized, members of Congress need dozen subpoenas issued before October 31, ment based on the assertion of rights and not agree that a President’s assertion of a 2019 came before the House delegated any au- privileges. In 1997 and 1998, there had been privilege or immunity is correct to recognize thority under its ‘‘sole Power of Impeach- numerous court rulings rejecting various as- that making the assertion of legal privileges ment’’ to any committee.381 As OLC summa- sertions of Executive Privilege by President itself an impeachable offense is a dangerous rized: Clinton.368 The House Judiciary Committee and unwarranted step. The Constitution vests the ‘‘sole Power of concluded that Clinton’s assertions of Execu- The House took a similar view in rejecting Impeachment’’ in the House of Representa- tive Privilege were frivolous, especially be- an attempt to impeach President Tyler in tives. U.S. Const. art. I, § 2, cl. 5. For pre- cause they related to ‘‘purely private’’ mat- 1843 when he refused congressional demands cisely that reason, the House itself must au- ters—not official actions.369 Nevertheless, for information. As Professor Gerhardt has thorize an impeachment inquiry, as it has the Committee decided that the assertions of explained: done in virtually every prior impeachment privilege did not constitute an ‘‘impeachable Tyler’s attempts to protect and assert investigation in our Nation’s history, includ- offense[].’’ 370 what he regarded as the prerogatives of his ing every one involving a President. A con- Nothing from the Nixon impeachment pro- office were a function of his constitutional and gressional committee’s ‘‘right to exact testi- ceedings supports House Democrats either. policy judgments; they might have been mony and to call for the production of docu- The record there included evidence that, as wrong-headed or even poorly conceived (at ments’’ is limited by the ‘‘controlling char- part of efforts to cover up the Watergate least in the view of many Whigs in Con- ter’’ the committee has received from the break-in, the President had (among other gress), but they were not malicious efforts to House. United States v. Rumely, 345 U.S. 41, 44 things): provided information from the De- abuse or expand his powers. . . .379 (1953). Yet the House, by its rules, has au- partment of Justice to subjects of criminal President Trump’s resistance to congres- thorized its committees to issue subpoenas investigations to help them evade justice; sional subpoenas here was similarly ‘‘a func- only for matters within their legislative juris- used the FBI, Secret Service, and Executive tion of his constitutional and policy judg- diction. Accordingly, no committee may un- Branch personnel to conduct illegal elec- ments.’’ As the House recognized in the cases dertake the momentous move from legisla- tronic surveillance; and illegally attempted of President Tyler and President Clinton, di- tive oversight to impeachment without a to secure access to tax return information in vergent views on such matters cannot pos- delegation by the full House of such author- order to influence individuals.371 Moreover, sibly be sufficient to remove a duly elected ity.382 the Committee had transcripts of tapes on president from office. And that is especially Thus, as explained above, all subpoenas which the President discussed asserting the case here, where President Trump’s ac- issued before the adoption of House Resolu- privileges, not to protect governmental deci- tions were expressly based on advice from tion 660 on October 31, 2019, purportedly to sion making, but solely to stymie the inves- the Department of Justice. advance an ‘‘impeachment inquiry,’’ were tigation into the break-in.372 It was only in II. The Articles Resulted from an Impeachment unauthorized and invalid. that context that the House Judiciary Com- Inquiry that Violated All Precedent and De- B. House Democrats’ Impeachment Inquiry mittee narrowly recommended an article of nied the President Constitutionally Re- Deprived the President of the Fundamen- impeachment asserting that President Nixon quired Due Process. tally Fair Process Required by the Con- had ‘‘failed without lawful cause or excuse to Three defects make the House’s purported stitution produce papers and things’’ sought by Con- impeachment inquiry irredeemably flawed. The next glaring defect in House Demo- gress.373 There is nothing remotely com- First, as the Department of Justice advised crats’ impeachment proceedings was the parable in this case. Among other things, at the time, the House’s investigating com- wholly unfair procedures used to conduct the

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Both the Due Impeachment by the House alone has an im- would foster precisely the factionalism that Process Clause and separation of powers pact warranting the protections of due proc- the Framers foresaw as one of the greatest principles require the House to provide the ess.397 The House’s efforts to deprive the dangers in impeachments. ‘‘By forcing the President with fair process and an oppor- President of these constitutionally protected House and Senate to act as tribunals rather tunity to defend himself. Every modern pres- property and liberty interests necessarily than merely as legislative bodies, the Fram- idential impeachment inquiry—and every implicate the Due Process Clause. The fact ers infused the process with notions of due impeachment investigation for the last 150 that impeachment is a constitutionally pre- process to prevent impeachment from be- years—has expressly preserved the accused’s scribed mechanism for removing federal offi- coming a common tool of party politics.’’ 405 rights to a fundamentally fair process and cials from office does not make it any the The need for fair process as a reflection of ensured a balanced development of the evi- less a mechanism affecting rights within the respect for the separation of powers is fur- dence. These included the rights to cross-ex- ordinary ambit of the clause. ther buttressed by the unique role of the amine witnesses, to call witnesses, to be rep- The gravity of the deprivation at stake in President in the constitutional structure. As resented by counsel at all hearings, to make an impeachment—especially a presidential explained above,406 ‘‘presidential impeach- objections relating to the examination of impeachment—buttresses the conclusion ments are qualitatively different from all witnesses or the admissibility of evidence, that some due process limitations must others’’ because they overturn a national and to respond to evidence and testimony re- apply. It would be incompatible with the election and risk grave disruption of the gov- ceived. There is no reason to think that the Framers’ understanding of the ‘‘delicacy and ernment.407 It is unthinkable that a process Framers designed a mechanism for the pro- magnitude of a trust which so deeply con- carrying such grave risks for the Nation foundly disruptive act of impeaching the cerns the political reputation and existence should not be regulated by any constitu- President that could be accomplished of every man engaged in the administration tional limits. And the need for fair process is through any unfair and arbitrary means that of public affairs’’ 398 to think that they envi- even more critical where, as here, impeach- the House might invent.383 sioned a system in which the House was free ment turns on how the President has exer- 1. The Text and Structure of the Constitu- to devise any arbitrary or unfair mechanism cised authorities within his exclusive con- tion Demand that the House Ensure Fun- it wished for impeaching individuals. The stitutional sphere. The President is ‘‘the damentally Fair Procedures in an Im- Supreme Court has described due process as constitutional representative of the United peachment Inquiry ‘‘the protection of the individual against ar- States in its dealings with foreign na- (a) The Due Process Clause Requires Fair bitrary action.’’ 399 There is no reason to tions.’’ 408 Preserving the President’s ability Process think that protection was not intended to to carry out this constitutional function re- The federal Due Process Clause broadly extend to impeachments. quires that he be provided fair process and Similarly, the momentous impact of a states that ‘‘[n]o person shall . . . be dean opportunity to defend himself in any in- presidential impeachment on the operation prived of life, liberty, or property, without vestigation into how he has exercised his au- of the government suggests that the drafters due process of law’’ 384 and applies to every thority to conduct foreign affairs. Otherwise, of the Constitution expected the process to part of the federal government. In any pro- a partisan faction could smear the President be governed by procedures that would ensure ceeding that may lead to deprivation of a with one-sided allegations with no oppor- a fair assessment of evidence. The Bill of protected interest, it requires fair procedures tunity for the President to respond. That Rights guarantees due process, not out of an commensurate with the interests at stake.385 would threaten to ‘‘undermine the Presi- abstract, academic interest in process as an There is no exemption from the clause for dent’s capacity’’ for ‘‘effective diplomacy’’ end in itself, but rather due to a belief, deep- Congress. Thus, for example, the Supreme and ‘‘compromise the very capacity of the ly rooted in the Anglo-American system of Court has held that due process protections President to speak for the Nation with one law, that procedural protections reduce the 409 apply to congressional investigations and voice in dealing with other governments.’’ chances of erroneous decision-making.400 The provide witnesses in such investigations cer- (c) The House’s Sole Power of Impeachment Framers surely did not intend to approve a tain rights.386 Congress’s ‘‘power to inves- and Power to Determine Rules of Its Own process for determining impeachments that tigate, broad as it may be, is also subject to Proceedings Do Not Eliminate the Con- would be wholly cut loose from all tradi- recognized limitations’’—including those stitutional Requirement of Due Process tional mechanisms deemed essential in our ‘‘found in the specific individual guarantees Nothing in the House’s ‘‘sole Power of Im- legal heritage for discovering the truth. of the Bill of Rights.’’ 387 It would be anoma- peachment’’ 410 and power to ‘‘determine the The sole judicial opinion to reach the ques- lous if the Due Process Clause applied to in- Rules of its Proceedings’’ 411 undermines the tion held that the Due Process Clause applies vestigations conducted under Congress’s leg- House’s obligation to use fundamentally fair to impeachment proceedings.401 In Hastings v islative power—which aim merely to gather procedures in impeachment. Those provi- United States, the district court held that the information for legislation—but somehow sions simply mean that the House, and no Due Process Clause imposes an independent did not apply to impeachment investigations other entity, has these powers. The Supreme constitutional constraint on how the Senate aimed at stripping individuals of their gov- Court has made clear that independent con- exercises its ‘‘sole Power to try all Impeach- ernment positions. An impeachment inves- stitutional constraints limit otherwise ple- ments.’’ 402 In 1974, the Department of Justice tigation against the President potentially nary powers committed to one of the polit- suggested the same view, opining that seeks to charge the President with ‘‘Treason, ical branches.412 For example, even though ‘‘[w]hether or not capable of judicial enforce- Bribery, or other high Crimes and Mis- ‘‘[t]he [C]onstitution empowers each house ment, due process standards would seem to demeanors,’’ 388 and to strip the President of to determine its rules of proceedings,’’ each be relevant to the manner of conducting an both (1) his constitutionally granted right to House ‘‘may not by its rules ignore constitu- impeachment proceeding’’ in the House—in- ‘‘hold his Office during the Term of Four tional restraints or violate fundamental cluding ‘‘the ability of the President to be years,’’ 389 and (2) his eligibility to ‘‘hold and rights.’’ 413 Similarly, the doctrine of Execu- represented at the inquiry of the House Com- enjoy any Office of honor, Trust or Profit tive Privilege, which is rooted in the separa- mittee, to cross-examine witnesses, and to under the United States,’’ 390 including to be tion of powers, constrains Congress’s exer- offer witnesses and evidence,’’ completely re-elected as President.391 cise of its constitutionally assigned powers. separate from the trial in the Senate.403 Those actions plainly involve deprivations A congressional committee cannot simply of property and liberty interests protected (b) The Separation of Powers Requires Fair demand access to information protected by by the Due Process Clause.392 As a threshold Process Executive Privilege. Instead, if it can get ac- matter, it is settled law that even the lowest A proper respect for the head of a co-equal cess to such information at all, it must show level ‘‘public employees who can be dis- branch of the government also requires that that the information ‘‘is demonstrably crit- charged only for cause have a constitu- the House use procedures that are not arbi- ical to the responsible fulfillment of the tionally protected property interest in their trary and that are designed to permit the Committee’s functions.’’ 414 The House could tenure and cannot be fired without due proc- fair development of evidence. The Framers not evade that constraint by invoking its ess.’’ 393 Nothing in the Constitution suggests intended the impeachment power to be lim- plenary authority to ‘‘determine the Rules of that the impeachment process for addressing ited to ‘‘guard[] against the danger of perse- its Proceedings’’ 415 and adopting a rule al- charges crossing the extraordinarily high cution, from the prevalency of a factious lowing its committees to override Executive threshold of ‘‘Treason, Bribery, or other high spirit.’’ 404 The Constitution places the power Privilege.416 Executive Privilege, which is Crimes and Misdemeanors’’ 394 should involve of impeachment in the entire House pre- itself grounded in the Constitution, similarly less fair process than what the Constitution cisely to ensure that a majority of the elect- constrains the House’s ability to demand in- requires for every lower-level federal em- ed representatives of the people decide to formation pursuant to its ‘‘sole Power of Im- ployee. The Constitution also explicitly move an impeachment forward. That design peachment.’’ 417 gives the President (and every individual) a would be undermined if a House vote were Nixon v. United States, in any case, does not protected liberty interest in eligibility for shaped by an investigatory process so lop- suggest otherwise.418 Nixon addressed wheth- election to the Office of President—so long sided that it effectively empowered only one er the use of a committee to take evidence in as the individual meets the qualifications es- faction to develop evidence and foreclosed a Senate impeachment trial violated the di- tablished by the Constitution.395 Finally, the ability of others—including the ac- rection in the Constitution that the Senate

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00040 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.083 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S327 shall have ‘‘sole Power to try all Impeach- English impeachment of Warren Hastings,432 impeachment, that ‘‘[t]he Constitution guar- ments.’’ 419 The Court held that the challenge knew that ‘‘the House of Commons did hear antees the right of anyone who is accused of presented a non-justiciable political ques- the accused, and did permit him to produce any wrongdoing, and fundamental fairness tion 420—specifically, that ‘‘[i]n the case before testimony, before they voted an impeach- guarantees the right of anyone, to have the us, there is no separate provision of the Con- ment against him.’’ 433 And practice in the right to confront the witness against stitution that could be defeated by allowing United States rapidly established that the him.’’ 449 Rep. Hank Johnson—a current Judi- the Senate final authority to determine the accused in an impeachment must be allowed ciary Committee member—has similarly rec- meaning of the word ‘try’ in the Impeach- fair process. Although a few early impeach- ognized that ‘‘[t]here is a reason for a careful ment Trial Clause.’’ 421 But Nixon did not ment investigations were ex parte,434 the process when it comes to the most drastic hold that all questions related to impeach- House provided the accused with notice and action of impeachment; it is called due proc- ment are non-justiciable 422 or that there are an opportunity to be heard in the majority ess.’’ 450 no constitutional constraints on impeach- of cases starting as early as 1818.435 The two modern presidential impeachment ment. To the contrary, the Court ‘‘agree[d] By Judge Peck’s impeachment in 1830, inquiries also abundantly confirm the due with Nixon that courts possess power to re- House Members, explicitly acknowledging process protections that apply to the accused view either legislative or executive action that ‘‘it was obvious that it had not yet been in an impeachment inquiry. In fact, every that transgresses identifiable textual lim- settled by precedent,’’ had an extensive de- President who has asked to participate in an its,’’ but merely concluded ‘‘that the word bate to ‘‘settle[]’’ ‘‘[t]he practice in cases of impeachment investigation has been af- ‘try’ in the Impeachment Trial Clause does impeachments, so far as regards the pro- forded extensive rights to do so.451 The House not provide an identifiable textual limit on ceedings in this House.’’ 436 Judge Peck had Judiciary Committee adopted explicit proce- the authority which is committed to the asked for the House to give him the ability dures to provide Presidents Clinton and Senate.’’ 423 More importantly, the to submit a ‘‘written exposition of the whole Nixon with robust opportunities to defend justiciability of such questions is irrelevant. case, embracing both the facts and the law, themselves, including the rights ‘‘to attend Constitutional obligations need not be en- and give him, also, process to call his wit- all hearings, including any held in executive forceable by the judiciary to exist and con- nesses from Missouri in support of his state- session’’; ‘‘respond to evidence received and 437 strain the political branches. As Madison ex- ments.’’ The Judiciary Committee Chair- testimony adduced by the Committee’’; plained, ‘‘as the Legislative, Executive, and man, James Buchanan, pointed out that ‘‘in ‘‘submit written requests’’ for ‘‘the Com- Judicial departments of the United States the case of Warren Hastings’’ in England, mittee to receive additional testimony or are co-ordinate, and each equally bound to ‘‘the House of Commons did hear the ac- other evidence’’; 452 ‘‘question any witness cused, and did permit him to produce testi- support the Constitution, it follows that called before the Committee’’; and raise mony, before they voted an impeachment each must in the exercise of its functions, be ‘‘[o]bjections relating to the examination of against him.’’ 438 Mr. Ingersoll explained guided by the text of the Constitution ac- witnesses, or to the admissibility of testi- that, in a prior impeachment inquiry against cording to its own interpretation of it.’’ 424 mony and evidence.’’ 453 President Clinton Vice President Calhoun, ‘‘a friend of the Vice Particularly in the impeachment context, was given access to the grand-jury evidence President had been permitted to appear, and ‘‘we have to divest ourselves of the common that underpinned the Starr report.454 The represent him throughout the whole inves- misconception that constitutionality is Committee also ensured that the minority tigation,’’ that ‘‘[w]itnesses, also, had been discussable or determinable only in the could fully participate in the investigation examined on the part of the accused,’’ and courts, and that anything is constitutional and hearings, including by submitting evi- that ‘‘witnesses in favor of the Vice Presi- which a court cannot or will not over- dence, objecting to witness examination and dent had been examined, as well as against turn.... Congress’s responsibility to pre- evidence, and exercising co-equal subpoena him, and that his representative had been al- serve the forms and the precepts of the Con- authority to issue a subpoena subject to lowed to present before the committee stitution is greater, rather than less, when overruling by the full Committee.455 Both through every stage of the examination.’’ 439 the judicial forum is unavailable, as it some- Presidents were thus able to present robust He noted that ‘‘[t]he committee at that time times must be.’’ 425 A holding that a par- defenses before the Committee.456 Indeed, took some pains to ascertain what was the ticular question is a non-justiciable political President Clinton’s counsel gave an opening proper mode of proceeding, and they became question leaves that question to the political statement, the President called 14 expert satisfied that the party accused had, in these branches to use ‘‘nonjudicial methods of witnesses over two days, and the President’s preliminary proceedings, a right to be thus working out their differences’’ 426 and does counsel also gave a closing statement 457 and heard.’’ 440 Mr. Pettis similarly concluded not relieve the House of its constitutional cross-examined the witnesses, including that ‘‘[t]he request of the Judge is supported obligation. ‘‘question[ing] Judge Starr for an hour.’’ 458 by the whole train of English decisions in In this impeachment inquiry, the House In- 2. The House’s Consistent Practice of Pro- cases of a like kind’’ and that he should be telligence Committee fulfilled the investiga- viding Due Process in Impeachment Inves- given those rights here as well.441 The debate tory role that the House Judiciary Com- tigations for the Last 150 Years Confirms was thus settled in favor of due process mittee filled in prior impeachments, and that the Constitution Requires Due Proc- rights for Judge Peck.442 ess By at least the 1870s, despite some unset- thus, these rights should have been available Historical practice provides a gloss on the tled practice in the interim, the House Judi- in the proceedings before the Intelligence requirements of the Constitution and strong- ciary Committee concluded that an oppor- Committee. ly confirms that House impeachment inves- tunity for the ‘‘accused by himself and his 3. The President’s Counsel Must Be Allowed tigations must adhere to basic forms of due counsel [to] be heard’’ had ‘‘become the es- To Be Present at Hearings, See and process. ‘‘In separation-of-powers cases, th[e] tablished practice of the [Judiciary Com- Present Evidence, and Cross-Examine All [Supreme] Court has often put significant mittee] in cases of impeachment’’ and thus Witnesses weight upon historical practice.’’ 427 As ‘‘deemed it due to the accused that he should The exact contours of the procedural pro- James Madison explained, it ‘‘was foreseen have’’ due process.443 That ‘‘established prac- tections required during an impeachment in- at the birth of the Constitution, that dif- tice’’ has been followed in every House im- vestigation must, of course, be adapted to ficulties and differences of opinion might oc- peachment investigation for the past 150 the nature of that proceeding. The hallmarks casionally arise in expounding terms [and] years 444 and has provided a fixed meaning for of a full blown trial are not required, but phrases necessarily used in such a charter the constitutional requirements governing procedures must reflect, at a minimum, . . . and that it might require a regular House impeachment proceedings.445 The fact basic protections that are essential for en- course of practice to liquidate [and] settle that the House has not followed a perfectly suring a fair process that is designed to get the meaning of some of them.’’ 428 The Con- consistent practice dating all the way back at the truth. stitution ‘‘contemplates that practice will to 1789, or that there were early outliers, is The Supreme Court’s ‘‘precedents establish integrate the dispersed powers [of the federal irrelevant.446 the general rule that individuals must re- government] into a workable govern- The House’s Parliamentarian acknowl- ceive notice and an opportunity to be heard ment.’’ 429 The Supreme Court has thus ex- edges that while ‘‘the committee sometimes before the Government deprives them’’ of a plained that historical practice reflects ‘‘an made its inquiry ex parte’’ in ‘‘earlier prac- constitutionally protected interest.459 That admissible view of the Constitution,’’ 430 and tice’’ before the 1870s, the practice dating to means, at a minimum, that the evidence ‘‘consistent congressional practice requires the 1870s ‘‘is to permit the accused to testify, must be disclosed to the accused, and the ac- our respect.’’ 431 Although constitutional represent witnesses, cross-examine witnesses, cused must be permitted an opportunity to quirements governing House impeachment and be represented by counsel.’’ 447 Current test and respond to the evidence—particu- proceedings may have been unsettled when House Democrats are already on record larly through ‘‘[t]he rights to confront and the Constitution was adopted, by the 1870s agreeing that due process protections apply cross-examine witnesses,’’ which ‘‘have long consistent practice in the House (unbroken in the House’s impeachment inquiries. Chair- been recognized as essential to due proc- since then) gave meaning to the Constitution man Nadler has admitted that ‘‘[t]he power ess.’’ 460 For 250 years, ‘‘the policy of the and settled the minimum procedures that of impeachment is a solemn responsibility, Anglo-American system of evidence has been must be afforded for a fair impeachment in- assigned to the House by the Constitution,’’ to regard the necessity of testing by cross- quiry. and ‘‘[t]hat responsibility demands a rig- examination as a vital feature of the law.’’ 461 The Framers, who debated impeachment orous level of due process.’’ 448 He has rightly Cross-examination is ‘‘the greatest legal en- with reference to the contemporaneous acknowledged, expressly in the context of gine ever invented for the discovery of

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For example, Chairman Schiff repeat- Before HPSCI ‘‘[i]n almost every setting where important edly shut down any line of questioning that After four weeks of secret—and wholly un- decisions turn on questions of fact, due proc- would have exposed personal self-interest, authorized—hearings, House Democrats fi- ess requires an opportunity to confront and prejudice, or bias of the whistleblower.471 nally introduced a resolution to have the cross-examine adverse witnesses.’’ 465 It is Finally, House Democrats made clear that House authorize an impeachment inquiry unthinkable that the Framers, steeped in the the proceedings’ secrecy was just a partisan and to set procedures for it. House Resolu- history of Anglo-American jurisprudence, stratagem. Daily leaks describing purported tion 660, however, merely compounded the would create a system that would allow the testimony of witnesses were calculated to fundamentally unfair procedures from the Chief Executive and Commander-in-Chief of present the public with a distorted view of secret cellar hearings by subjecting the the armed forces to be impeached based on a what was taking place behind closed doors President to a second round of ex parte hear- process that developed evidence without pro- and further the narrative that the President ings before Chairman Schiff’s committee. viding any of the elementary procedures that had done something wrong.472 The only difference was that this second the common law developed over centuries for House Democrats’ assertions that the base- round took place in public.484 Thus, after ensuring the proper testing of evidence in an ment Star Chamber hearings were justified screening witnesses’ testimony behind closed adversarial process. because the House ‘‘serves in a role analo- doors, Chairman Schiff moved on to a true 473 The most persuasive source indicating gous to a grand jury and prosecutor’’ are show trial—a stage-managed inquisition in what the Constitution requires in an im- baseless. The House’s unbroken practice of front of the cameras, choreographed with peachment investigation is the record of the providing due process over the last 150 years pre-screened testimony to build a narrative House’s own past practice, as explained confirms that the House is not merely a aiming at a pre-determined result. The above.466 The due process rights consistently grand jury.474 Chairman Nadler, other House President was still denied any opportunity to afforded by the House to the accused for the Democrats, and then-Representative Schu- participate, to cross-examine witnesses, to past 150 years have generally included the mer rejected such analogies as a ‘‘cramped present witnesses or evidence, or to protect right to appear and to be represented by view of the appropriate role of the House constitutionally privileged Executive Branch counsel at all hearings, to have access to and [that] finds no support in the Constitution information by having agency counsel respond to the evidence, to submit evidence and is completely contrary to the great present. All of this was directly contrary to and testimony, to question witnesses and ob- weight of historical precedent.’’ 475 The Judi- the rules that had governed the Nixon and ject to evidence, and to make opening state- ciary Committee’s own impeachment con- Clinton impeachment inquiries. There, the ments and closing arguments.467 Chairman sultant and staff have rejected ‘‘[g]rand jury President had been allowed to cross-examine Nadler, Chairman Schiff, other House Demo- analogies’’ as ‘‘badly misplaced when it any fact witnesses called by the com- crats, and then-Representative Schumer comes to impeachment.’’ 476 mittee.485 In addition, the President had been have repeatedly confirmed these procedural More importantly, the narrow rationales permitted to call witnesses, and the ranking requirements.468 that justify limiting procedural protections member on the investigating committee had 477 4. The House Impeachment Inquiry Failed to in grand juries simply do not apply here. been permitted co-equal subpoena author- Provide the Due Process Demanded by the For example, it is primarily grand jury se- ity.486 Constitution and Generated a Fundamen- crecy—not the preliminary nature of grand (c) Phase III: The Ignominious Rubber Stamp tally Skewed Record That Cannot Be Re- jury proceedings in developing the basis for a from the Judiciary Committee charge—that ‘‘justif[ies] the limited proce- lied Upon in the Senate The House Committee on the Judiciary dural safeguards available to . . . persons Despite clear precedent mandating due simply rubber-stamped the ex parte record under investigation.’’ 478 That secrecy, in process for the accused in any impeachment compiled by Chairman Schiff and, per the turn, promotes two primary objectives. It al- inquiry—and especially in a presidential im- Speaker’s direction, relied on it to draft arti- lows an investigation to proceed without no- peachment inquiry—House Democrats con- cles of impeachment. Under House Resolu- tice to those under suspicion and thus may cocted a wholly unprecedented three-stage tion 660, it was only during this third phase further the investigation.479 In addition, a process in this case that denied the Presi- that the President was even nominally al- ‘‘cornerstone’’ of grand jury secrecy is the dent fair process at every step of the way. In- lowed a chance to participate and some rudi- policy of protecting the public reputations of deed, because the process started without mentary elements of process.487 With fact- those who may be investigated but never finding already over, there was no meaning- any actual authorization from the House, 480 charged. ful way to allow the President to use those committees initially made up the process as Neither rationale applied to Chairman rights for a balanced factual inquiry. In- they went along. In the end, all three phases Schiff’s proceedings for a straightforward of the House’s inquiry failed to afford the stead, the Judiciary Committee doubled reason: in relevant respects, the proceedings down on using the skewed, one-sided record President even the most rudimentary proce- were entirely public. Chairman Schiff made dures demanded by the Constitution, funda- developed by Chairman Schiff. Thus, the no secret that the target of his investigation only procedural protections that House Res- mental fairness, and over 150 years of prece- was President Trump. He and his colleagues dent. olution 660 provided the President were inad- held news conferences to announce that fact, equate from the outset because they came (a) Phase I: Secret Hearings in the Basement and they leaked information intended to Bunker far too late in the proceedings to be effec- damage the President from their otherwise tive. Procedural protections such as cross- The first phase involved secret proceedings 481 secret hearings. In addition, the exact wit- examination are essential as the factual in a basement bunker where the President ness list with the dates, times, and places of record is being developed. Providing process was not given any rights at all. This phase witness testimony were announced to the only after the record has been compiled and consisted of depositions taken by joint hear- world long in advance of each hearing. And after charges are being drafted can do little ings of the House Permanent Select Com- witnesses’ opening statements, as well as to remedy the distortions built into the mittee on Intelligence (HPSCI), the House slanted summaries of their testimony, were record. Here, most witnesses testified twice Committee on Foreign Affairs, and the selectively leaked to the press in real time. under oath on the same topics—once in a se- House Committee on Oversight and Reform. The entire direction of the investigation, as cret rehearsal to preview their testimony, To ensure there would be no transparency well as specific testimony, was thus and again in public—without any cross-ex- for the President or the American people, telegraphed to the world. These acts would amination by the President’s counsel. Lock- depositions were conducted in a facility de- have violated federal criminal law if grand ing witnesses into their stories by having signed for securing highly classified informa- jury rules had applied.482 them testify twice vastly reduces the benefit tion—even though all of the depositions were It is also well settled that the one-sided of cross-examination. Any deviation from ‘‘conducted entirely at the unclassified procedures employed by Chairman Schiff prior testimony potentially exposes a wit- level.’’ 469 The President was denied any op- were not designed to be the best mechanism ness to a double perjury charge, and, worse, portunity to participate. He was denied the for getting at the truth. Grand jury proce- the prior ex parte testimony becomes fixed in right to have counsel present. He was denied dures have never been justified on the theory each witness’s mind in place of actual mem- the right to cross-examine witnesses, call that they are well adapted for uncovering ul- ory. witnesses, and present evidence. He was even timate facts. To the contrary, as explained While it would have been next to impos- denied the right to have Executive Branch above, the Anglo-American legal system has sible for a proceeding before the Judiciary counsel present during depositions of Execu- long recognized that ‘‘adversarial testing,’’ Committee to remedy the defects in the tive Branch officials, thereby undermining particularly cross-examination, ‘‘will ulti- prior two rounds of hearings, Chairman Nad- any ability for the President to protect long- mately advance the public interest in truth ler had no interest in even attempting to do standing constitutional privileges over Exec- and fairness.’’ 483 Those essential procedural that. His only interest was following march- utive Branch information.470 Members in the rights are no less necessary in impeachment ing orders to report articles of impeachment Republican minority on the investigating proceedings unless one adopts the counter- to the House so they could be voted on before committees could not provide a counter- intuitive assumption that the Framers did Christmas. Thus, he repeatedly provided weight to remedy the lack of process for the not intend an impeachment inquiry to use vague and inadequate notice about what pro- President. They were denied subpoena au- any of the familiar mechanisms developed ceedings were planned until he ultimately

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00042 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.086 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S329 informed the President that he had no plans President in his defense.496 Later that day, Chairman Nadler ultimately refused to for any evidentiary hearings at all. Committee counsel informed the President’s allow the Committee to hear from a single For example, on November 26, 2019—two counsel that—other than a report addressing fact witness or hear any evidence first-hand. days before Thanksgiving—Chairman Nadler the meaning of ‘‘high Crimes and Mis- He also blatantly violated House Rules by re- informed the President and the Ranking demeanors’’ based on the December 4 con- fusing to allow the minority to have a mi- Member that the Judiciary Committee stitutional law seminar and other than a nority hearing day.504 Instead, the Judiciary would hold a hearing on December 4 vaguely hearing on December 9 involving a presen- Committee simply relied on the ex parte evi- limited to ‘‘the historical and constitutional tation of the HPSCI majority and minority dence gathered by Chairman Schiff’s show basis of impeachment.’’ 488 The Chairman reports solely by staff—there were no imme- trial with no procedural protections at all. provided no further information about the diate plans to issue any other reports or And there could be no clearer admission that hearing, including the identities of the wit- have any other hearings. the evidence simply did not matter than nesses, but nonetheless required the Presi- Meanwhile, Chairman Nadler was also Speaker Pelosi’s instruction to begin draft- dent to indicate whether he wished to par- playing hide-the-ball with the minority ing articles of impeachment before the Com- ticipate by Sunday, December 1. Every as- members of his own Committee. The Com- mittee had even heard any evidence whatso- mittee’s Ranking Member, Doug Collins, pect of the planning for this hearing de- ever.505 parted from the Clinton and Nixon prece- sent at least seven letters to Chairman Nad- All of this conduct highlights rank hypoc- dents. The Committee afforded the President ler trying to find out about the process the risy by Chairman Nadler, who, during the Committee would follow and requesting spe- no scheduling input, no meaningful informa- Clinton impeachment, decried the fact that cific rights to ensure a balanced presentation tion about the hearing, and so little time to there had been ‘‘no witness called in front of of the law and facts, including requesting prepare that it effectively denied the Admin- this committee against the President’’ and witnesses.497 Chairman Nadler simply ig- istration a fair opportunity to participate. declared it ‘‘a failure of the Chairman of this nored them. He offered only an after-the-fact The Committee ultimately announced the committee that we are going to consider vot- response 498 that denied his request for wit- identities of the witnesses less than two days ing impeachment, having heard no witnesses 489 nesses in part on the misleading claim that before the hearing. For a similar hearing whatsoever against the President.’’ 506 Then, with scholars in the Clinton impeachment, ‘‘the President is not requesting any witnesses,’’ when it was Chairman Nadler who Chairman Nadler argued that the Judiciary the Committee provided two-and-a-half Committee cannot simply receive a report weeks’ notice to prepare and scheduled the had refused to commit to allowing the Presi- dent to call witnesses in the first place.499 compiled by another entity (there, the Inde- hearing on a date suggested by the Presi- pendent Counsel) and proceed to judgment. 490 As a backdrop to all of this, Chairman dent’s attorneys. President Trump under- That, in his words, ‘‘would be to say that the standably declined to participate in that bi- Nadler had threatened to invoke the unprecedented provision of the Committee’s Im- role of this committee of the House is a mere ased constitutional law seminar because he peachment Inquiry Procedures Pursuant to transmission belt or rubber stamp,’’ 507 and could not ‘‘fairly be expected to participate House Resolution 660 that allowed him to would ‘‘conclude the inquiry expeditiously, in a hearing while the witnesses are yet to be deny the President any due process rights if but not fairly, and not without trashing the named and while it remains unclear whether the President continued to assert long- Constitution and every principle of due proc- the Judiciary Committee will afford the standing privileges and immunities to pro- ess and fundamental fairness that we have President a fair process through additional tect Executive Branch information and to held sacred since the Magna Carta.’’ 508 House 491 hearings.’’ challenge the validity of the investigating Democrats on the Judiciary Committee Meanwhile, in a separate letter on Novem- committees’ subpoenas.500 This approach also made the same point just a few years ago in ber 29, 2019, Chairman Nadler asked the departed from all precedent in the Clinton 2016: ‘‘[i]n all modern cases, the Committee President to specify, by December 6, how he and Nixon proceedings.501 Even though both has conducted an independent, formal inves- would participate in future undefined ‘‘pro- Presidents had asserted numerous privileges, tigation into the charges underlying a reso- ceedings’’ and which ‘‘privileges’’ in the Ju- the Judiciary Committee never con- lution of impeachment—again, even when diciary Committee’s Impeachment Proce- templated that offering the opportunity to other authorities and other congressional dures the President’s counsel would seek to present a defense and to have a fair hearing committees have already investigated the exercise.492 At the same time, he gave no in- should be conditioned on forcing the Presi- underlying issue.’’ 509 dication as to what these ‘‘proceedings’’ dent to abandon the longstanding constitu- The House’s constitutionally deficient pro- would involve, what subjects they would ad- tional rights and privileges of the Executive ceedings have so distorted the factual record dress, whether witnesses would be heard (or Branch. The Supreme Court has already ad- compiled in the House that it cannot con- who they would be), or when any hearings dressed such Catch–22 choices and has made stitutionally be relied upon for the Senate to would be held.493 To inform the President’s clear that it is ‘‘intolerable that one con- reach any verdict other than acquittal. decision, the President’s counsel asked stitutional right should have to be surren- C. The House’s Inquiry Was Irredeemably De- Chairman Nadler for information about the dered in order to assert another.’’ 502 Condi- ‘‘scope and nature of the proceedings’’ he fective Because It Was Presided Over by an tioning access to basic procedural rights on Interested Fact Witness Who Lied About planned, including topics of hearings, wheth- an agreement to waive other fundamental er he intended ‘‘to allow for fact witnesses to Contact with the Whistleblower Before the rights is the same as denying procedural Complaint Was Filed be called,’’ and whether he would allow ‘‘the rights altogether. President’s counsel the right to cross exam- As a result, by the December 6 deadline, The House’s entire factual investigation ine fact witnesses.’’ 494 The President’s coun- the President had been left with no meaning- was carefully orchestrated—and restricted— sel even offered to meet with Chairman Nad- ful choice at all. The Committee was already by an interested fact witness: Chairman ler to discuss a plan for upcoming hear- under instructions to draft articles of im- Schiff. His repeated falsehoods about the ings.495 All to no avail—Chairman Nadler did peachment before hearing any evidence; President leave him with no credibility not even bother to respond. Chairman Nadler had kept the President in whatsoever. In March 2017, Chairman Schiff And the Judiciary Committee continued to the dark until the last minute about how and lied, announcing that he already had evi- hide the ball. Throughout the week of De- when the Committee would proceed; and dence that the Trump campaign colluded cember 2, the President’s counsel were in Committee counsel had finally confirmed with Russia.510 That was proved false when contact with Committee counsel trying to that the Committee’s plan was to hear solely the Mueller Report was released and the en- get answers concerning what hearings were a staff presentation of the HPSCI report and tire Russian hoax Chairman Schiff had been planned, so that the President could deter- not to hold any other hearings. It was abun- peddling was disproved. mine whether and how to participate. But all dantly clear that, if the President asked to In this proceeding, Chairman Schiff vio- that Committee staff were authorized to con- present or cross examine any witnesses, any lated basic fairness by overseeing and pros- vey was: (i) a hearing on an unknown topic future hearings would merely be window- ecuting the proceedings while secretly being had been publicly announced for December 9; dressing designed to place a veneer of fair a witness in the case. Before public release of (ii) before that hearing, the Committee process on a stage-managed show trial al- the whistleblower complaint, when asked might be issuing two additional reports (one ready hurtling toward a preordained result. whether he had ‘‘heard from the whistle- based on the December 4 constitutional law The President would not be given any mean- blower,’’ Chairman Schiff falsely denied hav- seminar and one dredging up unspecified as- ingful opportunity to question fact witnesses ing ‘‘heard from the whistleblower,’’ saying: pects of Special Counsel Mueller’s report); or otherwise respond to the one-sided factual ‘‘We have not spoken directly with the whis- and (iii) they would not have an answer to record transmitted by HPSCI. The Judiciary tleblower. We would like to . . . But yes, we any other questions about the subjects of the Committee’s assertion that the President would love to talk directly with the whistle- December 9 hearing or whether any other ‘‘could have had his counsel make a presen- blower.’’ 511 As multiple media outlets con- hearings would be scheduled until after the tation of evidence or request that other wit- cluded, that statement was ‘‘flat-out close of business on Thursday, December 5. nesses be called’’ 503 is thus entirely disingen- false’’ 512—a ‘‘[w]hopper’’ of a lie that earned On the morning of December 5, Speaker uous. Under those circumstances, the Presi- ‘‘four Pinnochios’’ from The Washington Pelosi instructed the Judiciary Committee dent determined that he would not condone Post 513—because it ‘‘wrongly implied the to begin drafting articles of impeachment be- House Democrats’ violations of due process— committee had not been contacted’’ by the fore the Committee had received any presen- and that he would not lend legitimacy to whistleblower before the complaint was tation on the HPSCI report, heard any fact their unprecedented procedures—by partici- filed.514 Subsequent reporting showed that witness, or heard a single word from the pating in their show trial. Chairman Schiff’s staff had not only had

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00043 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.087 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S330 CONGRESSIONAL RECORD — SENATE January 21, 2020 contact with the whistleblower, but appar- ty’s quest for impeachment had ‘‘been going Russia. As the Mueller Report informed the ently played some still-unverified role in ad- on for 22 months . . . [t]wo and a half years, public, Special Counsel Mueller and his team vising the whistleblower before the com- actually.’’ 520 The moment that the President of investigators and FBI agents could not plaint was filed.515 And Chairman Schiff was sworn in, two liberal advocacy groups find any evidence of collusion between the began the hearings in this matter by lying launched a campaign to impeach him.521 The Trump Campaign and the Russian govern- once again and reading a fabricated version current proceedings began with a complaint ment.540 While the Mueller investigation was of the President’s telephone conversation prepared with the assistance of a lawyer who pending, though, Chairman Schiff flatly lied with President Zelensky to the American declared in 2017 that he was already planning to the American people, telling them that he people.516 to use ‘‘impeachment’’ to effect a ‘‘coup.’’ 522 was privy to ‘‘ ‘more than circumstantial evi- Given the role that Chairman Schiff and The first resolution proposing articles of im- dence’ that the President’s associates his staff apparently played in advising the peachment against President Trump was colluded with Russia.’’ 541 He played up the whistleblower, Chairman Schiff made him- filed before he had been in office for six Mueller investigation, promising that it self a fact witness in these proceedings. The months.523 As soon as Democrats gained con- would show wrongdoing ‘‘of a size and scope American people understand that Chairman trol of the House in the 2018 midterm elec- probably beyond Watergate.’’ 542 Schiff cannot covertly assist with the sub- tions, they made clear that they would stop The damage caused by Democrats’ Russian mission of a complaint, mislead the public at nothing to impeach the President. Rep. collusion delusion stretches far beyond any- about his involvement, and then pretend to Rashida Tlaib, for example, announced in thing directly attributable to the Mueller in- be a neutral ‘‘investigator.’’ No wonder January 2019: ‘‘[W]e’re going to go in there vestigation. The Mueller investigation itself Chairman Schiff repeatedly denied requests and we’re gonna impeach the was triggered by an FBI investigation, to subpoena the whistleblower and shut down motherf****r.’’ 524 known as Crossfire Hurricane, that involved any questions that he feared might identify Over the past three years, House Demo- gross abuses of FBI investigative tools—in- the whistleblower. Questioning the whistle- crats have filed at least eight resolutions to cluding FISA orders and undercover agents. blower would have exposed before the Amer- impeach the President, alleging a vast range The FBI abused its extraordinary authorities ican people the role Chairman Schiff and his of preposterous purported offenses. They to spy on American citizens and a major- 543 staff had in concocting the very complaint have repeatedly charged the President with party presidential campaign. According to a report from the Inspector General of the they purported to be investigating. obstruction of justice in connection with the Mueller investigation 525—an allegation that Department of Justice, these abuses included D. The Senate May Not Rely on a Factual ‘‘multiple instances’’ of factual assertions to Record Derived from a Procedurally Defi- the Department of Justice resoundingly re- 526 the FISA court that were knowingly ‘‘inac- cient House Impeachment Inquiry jected. One resolution sought to impeach the President for protecting national secu- curate, incomplete, or unsupported by appro- The Senate may not rely on a corrupted 544 rity by restricting U.S. entry by nationals of priate documentation’’ —in other words, factual record derived from constitutionally eight countries 527—an action upheld by the lies to the FISA court. One FBI official, who deficient proceedings to support a conviction Supreme Court.528 Another tried to impeach openly advocated for ‘‘resistance’’ against of the President of the United States. Nor is the President for publishing disparaging the President, even fabricated evidence to it the Senate’s role to attempt to remedy the tweets about Democrat House members in persuade the FISA court to maintain surveil- House’s errors by providing a ‘‘do-over’’ to response to their own attacks on the Presi- lance on an American citizen connected with 545 develop the record anew in the Senate. In the dent.529 Still another gathered a hodge-podge the Trump Campaign. Tellingly, the In- courts, comparable fundamental errors un- of absurd charges, including failing to nomi- spector General could not rule out the possi- derpinning the foundations of a case would nate persons to fill vacancies and insulting bility that Crossfire Hurricane was corrupted require throwing the case out. The denial of the press.530 by political bias, because the FBI could not ‘‘basic protections’’ of due process ‘‘nec- In this case, House Democrats ran the fast- provide ‘‘satisfactory explanations’’ for the essarily render[s]’’ a proceeding ‘‘fundamen- est presidential impeachment fact-finding on extraordinary litany of errors and abuses tally unfair,’’ precluding it from ‘‘reliably record. They raced through their entire proc- that plagued the investigation from its in- serv[ing] its function as a vehicle for deter- ess in less than three months from the begin- ception—all of which indicated bias against mination of guilt or innocence.’’ 517 A ‘‘pro- ning of their fact-finding investigation on the President.546 ceeding infected with fundamental proce- September 24, 2019 to the adoption of articles Despite all of this, House Democrats have dural error, like a void judicial judgment, is on December 18—meeting their deadline of refused to accept the conclusions of the a legal nullity.’’ 518 That is why, for example, impeachment by Christmas. That rushed Mueller Report. They held hearings and criminal indictments may not proceed to three-month process stands apart from every issued subpoenas hoping to uncover collusion where Mueller had found none. Failing that, trial when they result from ‘‘fundamental’’ prior presidential impeachment—the fastest they tried to keep the impeachment flame errors that cause ‘‘the structural protections of which took place after a fact-finding pe- alive by manufacturing an obstruction of the grand jury [to] have been so com- riod nearly four times as long. Independent charge—even though the Department of Jus- promised as to render the proceedings fun- Counsel Ken Starr received authorization to 519 tice had already rejected such a claim.547 damentally unfair.’’ The same principles investigate the charges that led to President They embarked on new fishing expeditions, should apply in the impeachment trial con- Clinton’s impeachment in January 1998,531 al- such as demanding the President’s tax re- text. The Senate cannot rely on a record de- most a full year before the House impeached turns, investigating the routine Executive veloped in a hopelessly defective House pro- President Clinton in December 1998.532 Con- Branch practice of granting case-by-case ex- ceeding to convict the President. gress began investigating President Nixon’s ceptions to the President’s voluntarily un- E. House Democrats Used an Unprecedented conduct in February 1973,533 more than one dertaken ethics guidelines, and the costs of and Unfair Process Because Their Goal to year before July 1974, when the House Judici- Impeach at Any Cost Had Nothing To Do the July 4 ‘‘Salute to America’’ event—all in ary Committee voted to recommend articles the hope that rummaging through those with Finding the Truth 534 of impeachment. The investigation into records might give them some new basis for House Democrats’ impeachment inquiry President Johnson also exceeded 12 months. attacking the President. was never a quest for the truth. Instead it Except for a two-month break between a Democrats have been fixated on impeach- was an inquisition in pursuit of an offense to vote rejecting articles of impeachment in ment and Russia for the past three years for justify a pre-ordained outcome—impeaching 1867 and the authorization of a second im- two reasons. First, they have never accepted President Trump by any means necessary. peachment inquiry,535 President Johnson’s the results of the 2016 election and have been The procedural protections that the House impeachment was investigated over 14 consumed by an insatiable need to justify has afforded to the accused in every im- months from January 1867 536 to the adoption their continued belief that President Trump peachment for the last 150 years were incom- of articles of impeachment in March 1868.537 could not ‘‘really’’ have won. Long before patible with that agenda. Ensuring a fair The two inquiries were closely related,538 and votes had been cast, Democrats had taken it process that uses time-tested methods for one article of impeachment was carried over as an article of faith that Hillary Clinton getting at the truth—like adversarial cross from the first impeachment inquiry.539 The would be the next President. House Demo- examination of witnesses by counsel for the Democrats’ need for speed only underscores crats’ impeachment and Russia obsessions accused—takes time and it also risks under- that, unlike prior impeachments, these pro- thus stem from a pair of false beliefs held as mining the accusers’ preferred version of the ceedings were never about conducting a seri- dogma: that Donald Trump should not be facts. But House Democrats had no time. By ous inquiry into the truth. President and that he is President only by September 2019, when the President released Although they tried everything, Demo- virtue of foreign interference. the transcript of his telephone call with crats pinned their impeachment dreams pri- The second reason for Democrats’ fixations President Zelensky, the 2020 campaign for marily on the Mueller investigation and is that they desperately need an illegitimate the presidency was already well underway, their dogmatic faith in the myth that Presi- boost for their candidate in the 2020 election, and they needed a fast and tightly controlled dent Trump—or at least his campaign—was whoever that may be. Put simply, Democrats process that would yield their political goal: somehow in league with Russia. After $32 have no response to the President’s record of impeachment by Christmas. million, 2,800 subpoenas, nearly 500 search achievement in restoring growth and pros- In fact, House Democrats have been on a warrants, 230 orders for communications perity to the American economy, rebuilding crusade to impeach the President since the records, and 500 witness interviews, that in- America’s military, and confronting Amer- moment he took office three years ago. As quisition disproved the myth of collusion be- ica’s adversaries abroad. They have no poli- Speaker Pelosi recently confirmed, her par- tween the President or his campaign and cies and no ideas to compete against that.

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00044 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.064 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S331 Instead, they are held hostage by a radical would be based on the ‘‘comparative strength in which Vice President Biden had threat- left wing that has foisted on the party a rad- of parties’’ rather ‘‘than by the real dem- ened withholding U.S. loan guarantees to se- ical agenda of socialism at home and ap- onstrations of innocence or guilt.’’ 558 The cure the dismissal of a prosecutor when peasement abroad that Democrat leaders Senate would thus ‘‘guard[] against the dan- Biden had been operating under, at the very know the American people will never accept. ger of persecution, from the prevalency of a least, the appearance of a serious conflict of For Democrats, President Trump’s record of factious spirit’’ in the House.559 It now falls interest. success made impeachment an electoral im- to the Senate to fulfill the role of guardian A. The Evidence Refutes Any Claim That the perative. As Congressman Al Green ex- that the Framers envisioned and to reject President Conditioned the Release of Secu- plained it: ‘‘if we don’t impeach the these wholly insubstantial Articles of Im- rity Assistance on an Announcement of In- [P]resident, he will get re-elected.’’ 548 peachment that have been propelled forward vestigations by Ukraine The result of House Democrats’ relentless by nothing other than partisan enmity to- The evidence squarely refutes the made-up pursuit of their obsessions—and their will- ward the President. claim that the President leveraged security ingness to sacrifice every precedent, every III. Article I Fails Because the Evidence Dis- assistance in exchange for Ukraine announc- principle, and every procedural right stand- proves House Democrats’ Claims ing an investigation into either interference ing in their way—is exactly what the Fram- in the 2016 election or the Biden-Burisma af- ers warned against: a wholly partisan im- Despite House Democrats’ unprecedented, fair. peachment. The Articles of Impeachment rigged process, the record they compiled now before the Senate were adopted without clearly establishes that the President did 1. The July 25 Call Transcript Shows the a single Republican vote. Indeed, the only bi- nothing wrong. President Did Nothing Wrong partisan aspect of these articles was congres- This entire impeachment charade centers The most important piece of evidence dem- sional opposition to their adoption.549 on a telephone call that President Trump onstrating the President’s innocence is the Democrats used to recognize that the mo- had with President Zelensky of Ukraine on transcript of the President’s July 25 tele- mentous act of overturning a national elec- July 25, 2019. There is no mystery about what phone call with President Zelensky. In an tion by impeaching a President should never happened on that call, because the President unprecedented act of transparency, the take place on a partisan basis, and that im- has been completely transparent: he released President made that transcript public peachment should not be used as a partisan a transcript of the call months ago. And that months ago.561 President Trump did not even tool in electoral politics. As Chairman Nad- transcript shows conclusively that the call mention the security assistance on the call, ler explained in 1998: was perfectly appropriate. Indeed, the person and he certainly did not make any connec- The effect of impeachment is to overturn on the other end of the call, President tion between the assistance and any inves- the popular will of the voters. We must not Zelensky, has confirmed in multiple public tigation. Instead, the record shows that he overturn an election and remove a President statements that the call was perfectly nor- raised two issues that are entirely consistent from office except to defend our system of mal. Before they had even seen the tran- with both his authority to conduct foreign government or our constitutional liberties script, though, House Democrats concocted relations and his longstanding concerns against a dire threat, and we must not do so all their charges based on distortions peddled about how the United States spends tax- without an overwhelming consensus of the by a so-called whistleblower who had no first- payers’ money on foreign aid: burden-sharing American people. There must never be a nar- hand knowledge of the call. And contrary to and corruption. rowly voted impeachment or an impeach- their claims, the transcript proves that the Burden-sharing has been a consistent ment supported by one of our major political President did not seek to use either security theme of the President’s foreign policy,562 parties and opposed by another. Such an im- assistance or a presidential meeting as lever- and he raised burden-sharing directly with peachment will produce divisiveness and bit- age to pressure Ukrainians to announce in- President Zelensky, noting that ‘‘Germany terness in our politics for years to come, and vestigations on two subjects: (i) possible does almost nothing for you’’ and ‘‘[a] lot of will call into question the very legitimacy of Ukrainian interference in the 2016 election; the European countries are the same our political institutions.550 or (ii) an incident in which then-Vice Presi- way.’’ 563 President Zelensky acknowledged Senator Leahy agreed: ‘‘A partisan im- dent Biden had forced the dismissal of a that European countries should be Ukraine’s peachment cannot command the respect of Ukrainian anti-corruption prosecutor who biggest partner, but they surprisingly were the American people. It is no more valid than reportedly had been investigating a company not.564 a stolen election.’’ 551 Chairman Schiff like- (Burisma) that paid Biden’s son, Hunter, to President Trump also raised concerns wise recognized that a partisan impeachment sit on its board.560 The President did not about corruption. He first raised these con- would be ‘‘doomed for failure,’’ adding that even mention the security assistance on the cerns in connection with reports of Ukrain- there was ‘‘little to be gained by putting the call, and he invited President Zelensky to ian actions in the 2016 presidential election. country through that kind of wrenching ex- the White House without any condition Numerous media outlets have reported that perience.’’ 552 Earlier last year even Speaker whatsoever. When the President released the Ukrainian officials took steps to influence Pelosi acknowledged that, ‘‘before I think we transcript of the call on September 25, 2019, and interfere in the 2016 election to under- should go down any impeachment path,’’ it it cut the legs out from under all of House mine then-candidate Trump, and three Sen- ‘‘would have to be so clearly bipartisan in Democrats’ phony claims about a quid pro ate committee chairmen are currently inves- terms of acceptance of it.’’ 553 quo. That should have ended this entire mat- tigating this interference.565 President Now, however, House Democrats have com- ter. Trump raised ‘‘this whole situation’’ and pletely abandoned those principles and Nevertheless, House Democrats forged noted particularly that President Zelensky placed before the Senate Articles of Im- ahead, determined to gin up some other evi- was ‘‘surrounding [him]self with some of the peachment that are partisan to their core. In dence to prop up their false narrative. But same people.’’ 566 President Zelensky re- their rush to impeach the President before even their rigged process failed to yield the sponded by noting that he had recalled the Christmas, Democrats allowed speed and po- evidence they wanted. Instead, the record af- Ukrainian Ambassador to the United litical expediency to conquer fairness and firmatively refutes House Democrats’ States—an individual who had sought to in- truth. As Professor Turley explained, this claims. In addition to the transcript, the fluence the U.S. election by authoring an impeachment ‘‘stand[s] out among modern central fact in this case is this: there are anti-Trump op-ed.567 As Democrats’ witness impeachments as the shortest proceeding, only two people who have made statements Dr. Hill testified, many officials in the State with the thinnest evidentiary record, and the on the record who say they spoke directly to Department and NSC were similarly con- narrowest grounds ever used to impeach a the President about the heart of this mat- cerned about individuals surrounding president.’’ 554 And as the vote closed, House ter—Ambassador Gordon Sondland and Sen- Zelensky.568 Democrats could not contain their glee. Sev- ator Ron Johnson. And they both confirmed The President also mentioned an incident eral Democrats clapped; others cheered; and that the President stated unequivocally that involving then-Vice President Joe Biden and still others raised exclamations of joy on the he sought nothing and no quid pro quo of any a corruption investigation involving floor of the House of Representatives—until kind from Ukraine. House Democrats’ claims Burisma.569 In that incident, a corruption in- the Speaker shamed them into silence.555 are built entirely on speculation from wit- vestigation involving Burisma had report- The Framers foresaw clearly the possi- nesses who had no direct knowledge about edly been stopped after Vice President Biden bility of such an improper, partisan use of anything and who never even spoke to the threated to withhold one billion dollars in impeachment. As Hamilton recognized, im- President about this matter. U.S. loan guarantees unless the Ukrainian peachment could be a powerful tool in the House Democrats’ charges also rest on the government fired a prosecutor.570 At the hands of determined ‘‘pre-existing fac- fundamentally mistaken premise that it time, Vice President Biden’s son, Hunter, tions.’’ 556 The Framers fully recognized that would have been illegitimate for the Presi- was sitting on the Burisma’s board of direc- ‘‘the persecution of an intemperate or de- dent to ask President Zelensky about either: tors.571 The fired prosecutor reportedly had signing majority in the House of Representa- (i) Ukrainian interference in the 2016 elec- been investigating Burisma at the time.572 In tives’’ was a real danger.557 That is why they tion or (ii) the Biden-Burisma affair. That is fact, on July 22, 2019—just days before the chose the Senate as the tribunal for trying obviously wrong. Asking another country to July 25 call—The Washington Post reported impeachments. Further removed from the examine potential interference in a past U.S. that the prosecutor ‘‘said he believes his politics of the day than the House, they be- election is always permissible. Similarly, it ouster was because of his interest in lieved the Senate could mitigate the ‘‘danger would not have been improper for the Presi- [Burisma]’’ and ‘‘[h]ad he remained in his that the decision’’ to remove a President dent to ask the Ukrainians about an incident post. . .he would have questioned Hunter

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Ukrainian Officials Confirmed There Was learned of the pause in the aid ‘‘by reading a As these examples show, President Trump No Quid Pro Quo and No Pressure on Them news article,’’ and Deputy Minister of De- raised corruption issues with President Concerning Investigations fense Oleh Shevchuk learned ‘‘through media Zelensky. House Democrats’ claim that he 608 The Ukrainian government also made clear reports.’’ did not address corruption because the inci- that President Trump did not connect secu- Further confirmation that the Ukrainians dents he raised were ‘‘not part of any official rity assistance and investigations on the did not know about the pause comes from briefing materials or talking points’’ is non- call. The Ukrainians’ official statement did the fact that the Ukrainians did not raise sense.574 President Trump spoke extempo- not reflect any such link,592 and President the security assistance in any of the numer- raneously and used specific examples rather Zelensky has been crystal clear about this in ous high-level meetings held over the sum- than following boilerplate talking points his public statements. He has explained that mer—something Yermak told Bloomberg they proposed by the NSC.575 That is the Presi- 609 he ‘‘never talked to the President from the would have done had they known. Presi- dent’s prerogative. He is not bound to raise position of a quid pro quo’’ 593 and stated that dent Zelensky did not raise the issue in his concerns with a foreign leader in the they did not discuss the security assistance meetings with Ambassador Taylor on either terms a staffer placed on a briefing card. 610 on the call at all.594 Indeed, President July 26 or August 27. And Volker—who was More important, President Zelensky has in touch with the highest levels of the publicly confirmed that he understood Presi- Zelensky has confirmed several separate times that his communications with Presi- Ukrainian government—explained that dent Trump to be talking precisely about Ukrainian officials ‘‘would confide things’’ corruption. On the call, President Zelensky dent Trump were ‘‘good’’ and ‘‘normal,’’ and 595 in him and ‘‘would have asked’’ if they had acknowledged that the incidents President ‘‘no one pushed me.’’ The day after the call, President Zelensky met with Ambas- any questions about the aid.611 Things Trump had raised highlighted ‘‘the issue of changed, however, within hours of the publi- making sure to restore the honesty.’’ 576 As sador Volker, Ambassador Sondland, and Ambassador Taylor in Kyiv. Ambassador cation of the Politico article, when Yermak, a President Zelensky later explained, he un- top adviser to President Zelensky, texted derstood President Trump to be saying ‘‘we Volker reported that the Ukrainians 596 Ambassador Volker to ask about the re- 577 ‘‘thought [the call] went well.’’ Likewise, are tired of any corruption things.’’ Presi- port.612 dent Zelensky explained that his response Ambassador Taylor reported that President Zelensky stated that he was ‘‘happy with the The House Democrats’ entire theory falls was essentially, ‘‘[w]e are not corrupt.’’ 578 apart because President Zelensky and other In contrast to the explicit discussions call.’’ 597 And Ms. Croft, who met with Presi- dent Zelensky’s chief of staff Andriy Bohdan officials at the highest levels of the Ukrain- about burden-sharing and corruption, there ian government did not even know about the was no discussion of the paused security as- the day after the call, heard from Bohdan that the call ‘‘was a very good call, very temporary pause until shortly before the sistance on the July 25 call. To fill that gap, President released the security assistance. House Democrats seize on President positive, they had good chemistry.’’ 598 Other high ranking Ukrainian officials As Ambassador Volker said: ‘‘I don’t believe Zelensky’s statement that Ukraine was ‘‘al- . . . they were aware at the time, so there most ready to buy more Javelins,’’ and confirmed that they never perceived a connection between security assistance and in- was no leverage implied.’’ 613 These facts alone President Trump’s subsequent turn of the vindicate the President. conversation as he said, ‘‘I would like you to vestigations. Ukrainian Foreign Minister do us a favor though because our country has Vadym Prystaiko stated his belief that 4. House Democrats Rely Solely on 599 been through a lot and Ukraine knows a lot ‘‘there was no pressure,’’ he has ‘‘never Speculation Built on Hearsay about it.’’ 579 According to House Democrats, seen a direct link between investigations and House Democrats’ charge is further dis- that sequence alone somehow linked the se- security assistance,’’ and ‘‘there was no clear proved by the straightforward fact that not a 600 curity assistance to a ‘‘favor’’ for President connection between these events.’’ Simi- single witness with actual knowledge ever Trump relating to ‘‘his reelection efforts.’’ 580 larly, when President Zelensky’s adviser, testified that the President suggested any That is nonsense. Andriy Yermak, was asked if ‘‘he had ever connection between announcing investiga- First, President Trump asked President felt there was a connection between the U.S. tions and security assistance. Assumptions, Zelensky to ‘‘do us a favor,’’ and he made military aid and the requests for investiga- presumptions, and speculation based on clear that ‘‘us’’ referred to ‘‘our country’’ as tions,’’ he was ‘‘adamant’’ that ‘‘[w]e never hearsay are all that House Democrats can he put it, ‘‘because our country has been had that feeling’’ and ‘‘[w]e did not have the rely on to spin their tale of a quid pro quo. through a lot.’’ 581 Second, nothing in the flow feeling that this aid was connected to any House Democrats’ claims are refuted first of the conversation suggests that the Presi- one specific issue.’’ 601 and foremost by the fact that there are only dent was drawing a connection between the 3. President Zelensky and Other Senior two people with statements on record who Javelin sales and the next topics he turned Ukrainian Officials Did Not Even Know spoke directly with the President about the to.582 The President was clearly That the Security Assistance Had Been matter—and both have confirmed that the transitioning to a new subject. Third, as Paused President expressly told them there was no Democrats’ own witnesses conceded, Javelins House Democrats’ theory is further dis- connection whatsoever between the security are not part of the security assistance that proved because the evidence shows that assistance and investigations. Ambassador had been temporarily paused.583 Accordingly, President Zelensky and other senior Ukrain- Sondland testified that he asked President House Democrats’ assertion that ‘‘President ian officials did not even know that the aid Trump directly about these issues, and the Trump froze’’ Javelin sales ‘‘without expla- had been paused until more than a month President explicitly told him that he did not nation’’ is demonstrably false.584 Fourth, the after the July 25, 2019 call, when the pause want anything from Ukraine: President frequently uses variations of the was reported in Politico at the end of Au- I want nothing. I want nothing. I want no phrase ‘‘do us a favor’’ in the context of gust.602 The Ukrainians could not have been quid pro quo. Tell Zelensky to do the right international diplomacy, and the ‘‘favors’’ pressured by a pause on the aid they did not thing ....614 have nothing to do with the President’s per- even know about. Similarly, Senator Ron Johnson has said sonal interests.585 The President cannot be The uniform and uncontradicted testimony that he asked the President ‘‘whether there removed from office because House Demo- from American officials who actually was some kind of arrangement where crats deliberately misconstrue one of his interacted with President Zelensky and Ukraine would take some action and the commonly used phrases. other senior Ukrainian officials was that hold would be lifted,’’ and the answer was Notably, multiple government officials they had no reason to think that Ukraine clear and ‘‘[w]ithout hesitation’’: ‘‘(Expletive were on the July 25 call, and only one of knew of the pause until more than a month deleted)—No way. I would never do that.’’ 615 them—NSC Director for European Affairs after the July 25 call. Ambassador Volker Although he did not speak to the President Alexander Vindman—raised any concerns at testified that he ‘‘believe[s] the Ukrainians directly, Ambassador Volker also explained the time about the substance of it.586 His became aware of the delay on August 29 and that President Trump never linked security concerns were based primarily on policy dis- not before.’’ 603 Ambassador Taylor agreed assistance to investigations, and the Ukrain- agreements and a misplaced belief that the that, to the best of his knowledge, ‘‘nobody ians never indicated that they thought there President of the United States should have in the Ukrainian Government became aware was any connection: deferred to him on matters of foreign rela- of a hold on military aid until . . . August [Q.] Did the President of the United States tions. Lt. Col. Vindman testified that he had 29th.’’ 604 Mr. Morrison concurred, testifying ever say to you that he was not going to ‘‘deep policy concerns’’ 587 about Ukraine re- that he had ‘‘no reason to believe the allow aid from the United States to go to [ ] taining bipartisan support,588 but he ulti- Ukrainians had any knowledge of the review Ukraine unless there were investigations mately conceded that the President not a until August 28, 2019.’’ 605 Deputy Assistant into Burisma, the Bidens, or the 2016 elec- staffer like him sets policy.589 Secretary Kent and Ambassador Sondland tions? Mr. Morrison, Lt. Col. Vindman’s super- agreed.606 [A.] No, he did not. visor, affirmed that ‘‘there was nothing im- Public statements from high-level Ukrain- [Q.] Did the Ukrainians ever tell you that proper that occurred during the call.’’ 590 ian officials have confirmed the same point. they understood that they would not get a

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00046 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.066 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S333 meeting with the President of the United entirely unrelated factors. See infra Part eign policy, foreign policy assistance, and States, a phone call with the President of III.B. The paused aid, moreover, was entirely the ties between our foreign policy objec- the United States, military aid or foreign aid distinct from U.S. sales of Javelin missiles tives and the assistance. This had been going from the United States unless they under- and thus had no effect on the supply of those on actually for many months.’’ 636 took investigations of Burisma, the Bidens, arms to Ukraine.624 With regard to Ukraine, witnesses testified or the 2016 elections? 6. President Trump’s Record of Support for that President Trump was concerned about [A.] No, they did not.616 Ukraine Is Beyond Reproach corruption and whether other countries were Against all of that unequivocal testimony, Part of House Democrats’ baseless charge contributing their share. House Democrats base their case entirely on is that the temporary pause on security as- 1. Witnesses Testified That President Trump witnesses who offer nothing but speculation. sistance somehow ‘‘compromised the na- Had Concerns About Corruption in Ukraine Worse, it is speculation that traces back to tional security of the United States’’ by Contrary to the bald assertion in the House one source: Sondland. Other witnesses re- leaving Ukraine vulnerable to Russian ag- Democrats’ trial brief that ‘‘[b]efore news of peatedly invoked things that Ambassador gression.625 The record affirmatively dis- former Vice President Biden’s candidacy Sondland had said in a chain of hearsay that proves that claim. In fact, Chairman Schiff’s broke, President Trump showed no interest would never be admitted in any court. For hearings established beyond a doubt that the in corruption in Ukraine,’’ 637 multiple wit- example, Chairman Schiff’s leading witness, Trump Administration has been a stronger, nesses testified that the President has long Ambassador Taylor, acknowledged that, to more reliable friend to Ukraine than the had concerns about this issue. Dr. Hill, for the extent he thought there was a connec- prior administration. Ambassador instance, testified that she ‘‘think[s] the tion between the security assistance and in- Yovanovitch testified that ‘‘our policy actu- President has actually quite publicly said vestigations, his information came entirely ally got stronger’’ under President Trump, that he was very skeptical about corruption from things that Sondland said—or (worse) largely because, unlike the Obama adminis- in Ukraine. And, in fact, he’s not alone, be- second-hand accounts of what Morrison told tration, ‘‘this administration made the deci- cause everyone has expressed great concerns 617 Taylor that Sondland had said. Similarly, sion to provide lethal weapons to Ukraine’’ about corruption in Ukraine.’’ 638 Similarly, Morrison testified that he ‘‘had no reason to to help Ukraine fend off Russian aggres- Ambassador Yovanovitch testified that ‘‘we believe that the release of the security-sec- sion.626 Yovanovitch explained that ‘‘we all all’’ had concerns about corruption in tor assistance might be conditioned on a felt [that] was very significant.’’ 627 Ambas- Ukraine and noted that President Trump de- public statement reopening the Burisma in- sador Taylor similarly explained that the aid livered an anti-corruption message to former vestigation until [his] September 1, 2019, con- package provided by the Trump Administra- Ukraine President Petro Poroshenko in their versation with Ambassador Sondland.’’ 618 tion was a ‘‘substantial improvement’’ over first meeting in the White House on June 20, Sondland, however, testified unequivocally the policy of the prior administration, be- 2017.639 NSC Senior Director Morrison con- that ‘‘the President did not tie aid to inves- cause ‘‘this administration provided Javelin firmed that he ‘‘was aware that the Presi- tigations.’’ Instead, he acknowledged that antitank weapons,’’ which ‘‘are serious weap- dent thought Ukraine had a corruption prob- any link that he had suggested was based en- ons’’ that ‘‘will kill Russian tanks.’’ 628 Dep- lem, as did many others familiar with tirely on his own speculation, unconnected to uty Assistant Secretary Kent agreed that Ukraine.’’ 640 And Ms. Croft also heard the any conversation with the President: Javelins ‘‘are incredibly effective weapons at President raise the issue of corruption di- [Q.] What about the aid? [Ambassador stopping armored advance, and the Russians rectly with then-President Poroshenko of Volker] says that they weren’t tied, that the are scared of them,’’ 629 and Ambassador Ukraine during a bilateral meeting at the aid was not tied — Volker explained that ‘‘President Trump ap- United Nations General Assembly in Sep- [A.] And I didn’t say they were conclu- proved each of the decisions made along the tember 2017.641 She also understood the sively tied either. I said I was presuming it. way,’’ and as a result, ‘‘America’s policy to- President’s concern ‘‘[t]hat Ukraine is cor- [Q.] Okay. And so the President never told wards Ukraine strengthened.’’ 630 As Senator rupt’’ because she had been ‘‘tasked[] and you they were tied. Johnson has noted, President Trump capital- retasked’’ by then-National Security Advisor [A.] That is correct. ized on a longstanding congressional author- General McMaster ‘‘to write [a] paper to help [Q.] So your testimony and [Ambassador ization that President Obama did not: ‘‘In [McMaster] make the case to the President’’ Volker’s] testimony is consistent, and the 2015, Congress overwhelmingly authorized in connection with prior security assist- President did not tie aid to investigations. $300 million of security assistance to 642 619 ance. [A.] That is correct. Ukraine, of which $50 million was to be Concerns about corruption in Ukraine were Indeed, Sondland testified that he did ‘‘not available only for lethal defensive weaponry. also entirely justified. As Dr. Hill affirmed, recall any discussions with the White House The Obama administration never supplied ‘‘eliminating corruption in Ukraine was one on withholding U.S. security assistance from the authorized lethal defensive weaponry, of, if [not] the central, goals of U.S. foreign Ukraine in return for assistance with the but President Trump did.’’ 631 policy’’ in Ukraine.643 Virtually every wit- 620 President’s 2020 reelection campaign.’’ Thus, any claim that President Trump put ness agreed that confronting corruption And he explained that he ‘‘did not know (and the security of Ukraine at risk is flatly in- should be at the forefront of U.S. policy with still do[es] not know) when, why, or by whom correct. The pause on security assistance respect to Ukraine.644 the aid was suspended,’’ so he just ‘‘presumed (which was entirely distinct from the Javelin 2. The President Had Legitimate Concerns that the aid suspension had become linked to sales) was lifted by the end of the fiscal year, About Foreign Aid Burden-Sharing, Includ- the proposed anti-corruption statement.’’ 621 and the aid flowed to Ukraine without any ing With Regard to Ukraine In his public testimony alone, Sondland used preconditions. Ambassador Volker testified President Trump also has well-documented variations of ‘‘presume,’’ ‘‘assume,’’ ‘‘guess,’’ that the brief pause on releasing the aid was concerns regarding American taxpayers or ‘‘speculate’’ over thirty times. When asked ‘‘not significant.’’ 632 And Under Secretary of being forced to cover the cost of foreign aid if he had any ‘‘testimony [] that ties Presi- State for Political Affairs David Hale ex- while other countries refuse to pitch in. In dent Trump to a scheme to withhold aid plained that ‘‘this [was] future assistance. fact, ‘‘another factor in the foreign affairs from Ukraine in exchange for these inves- . . . not to keep the army going now,’’ dis- review’’ discussed by Under Secretary Hale tigations,’’ he stated that he has nothing proving the false claim made by House was ‘‘appropriate burden sharing.’’ 645 The ‘‘[o]ther than [his] own presumption,’’ and he Democrats that the pause caused any harm President’s 2018 Budget discussed this precise conceded that ‘‘[n]o one on this planet told to Ukraine over the summer.633 In fact, ac- issue: [him] that Donald Trump was tying aid to cording to Oleh Shevchuk, the Ukrainian The Budget proposes to reduce or end di- investigations.’’ 622 House Democrats’ asser- Deputy Minister of Defense who oversaw rect funding for international programs and tion that ‘‘President Trump made it clear to U.S. aid shipments, ‘‘the hold came and went organizations whose missions do not sub- Ambassador Sondland—who conveyed this so quickly’’ that he did not notice any stantially advance U.S. foreign policy inter- message to Ambassador Taylor—that every- change.634 thing was dependent on such an announce- ests. The Budget also renews attention on B. The Administration Paused Security As- the appropriate U.S. share of international ment [of investigations],’’ simply misrepre- sistance Based on Policy Concerns and Re- sents the testimony.623 spending at the United Nations, at the World leased It After the Concerns Were Satisfied Bank, and for many other global issues 5. The Security Assistance Flowed Without What the evidence actually shows is that where the United States currently pays more Any Statement or Investigation by Ukraine President Trump had legitimate policy con- than its fair share.646 The made-up narrative that the security cerns about foreign aid. As Under Secretary Burden-sharing was reemphasized in the assistance was conditioned on Ukraine tak- Hale explained, foreign aid to all countries President’s 2020 budget when it advocated for ing some action on investigations is further was undergoing a systematic review in 2019. reforms that would ‘‘prioritize the efficient disproved by the straightforward fact that As he put it, ‘‘the administration did not use of taxpayer dollars and increased burden- the aid was released on September 11, 2019, want to take a, sort of, business-as-usual ap- sharing to rebalance U.S. contributions to without the Ukrainians taking any action on proach to foreign assistance, a feeling that international organizations.’’ 647 investigations. President Zelensky never once a country has received a certain assist- House Democrats wrongly claim that ‘‘[i]t made a statement about investigations, nor ance package . . . it’s something that con- was not until September . . . that the hold, did anyone else in the Ukrainian govern- tinues forever.’’ 635 Dr. Hill confirmed this re- for the first time, was attributed to the ment. Instead, the evidence confirms that view and explained that ‘‘there had been a President’s concern about other countries the decision to release the aid was based on directive for whole-scale review of our for- not contributing more to Ukraine’’ 648 and

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00047 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.068 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S334 CONGRESSIONAL RECORD — SENATE January 21, 2020 that President Trump ‘‘never ordered a re- stan because it was not meeting its counter- ably like my final decision.’’ 677 On Sep- view of burden-sharing.’’ 649 These assertions terrorism obligations.662 tember 3, 2019, Senators Johnson and are demonstrably false. Indeed, Under Secretary Hale agreed that Portman, along with other members of the Mr. Morrison testified that he was well ‘‘aid has been withheld from several coun- Senate’s bipartisan Ukraine Caucus, wrote aware of the President’s ‘‘skeptical view’’ 650 tries across the globe for various reasons, to the President concerning the status of the on foreign aid generally and Ukrainian aid and, in some cases, for reasons that are still aid,678 and on September 5 the Chairman and specifically. He affirmed that the President unknown just in the past year.’’ 663 Dr. Hill Ranking Member of the House Foreign Af- was ‘‘trying to scrutinize [aid] to make sure similarly explained that ‘‘there was a freeze fairs Committee followed suit with another the U.S. taxpayers were getting their mon- put on all kinds of aid and assistance be- letter.679 ey’s worth’’ and explained that the President cause it was in the process at the time of an Most significantly, Mr. Morrison testified ‘‘was concerned that the United States awful lot of reviews of foreign assistance.’’ 664 that the Vice President advised the Presi- seemed to—to bear the exclusive brunt of se- She added that, in her experience, ‘‘stops and dent that the relationship with Zelensky ‘‘is curity assistance to Ukraine. He wanted to starts [are] sometimes common . . . with for- one that he could trust.’’ 680 The Vice Presi- see the Europeans step up and contribute eign assistance’’ and that ‘‘OMB [Office of dent had met with President Zelensky in more security assistance.’’ 651 Management and Budget] holds up dollars all Warsaw on September 1 and had heard first- There is other evidence as well. In a June the time,’’ including in the past for dollars hand that the new Ukrainian administration 24 email with the subject line ‘‘POTUS fol- going to Ukraine.665 Similarly, Ambassador was taking concrete steps to address corrup- low up,’’ a Department of Defense official re- Volker affirmed that aid gets ‘‘held up from tion and burden-sharing. On corruption relayed several questions from a meeting with time-to-time for a whole assortment of rea- form, President Zelensky ‘‘stated his strong the President, including ‘‘What do other sons,’’ and explained that ‘‘[i]t’s something commitment’’ and shared ‘‘some of the NATO members spend to support that had happened in [his] career in the things he had been doing,’’ specifically what 652 Ukraine?’’ Moreover, as discussed above, past.’’ 666 his party had done in the ‘‘2 or 3 days’’ since President Trump personally raised the issue 4. The aid was released after the Presi- the new parliament had been seated.681 Mor- of burden-sharing with President Zelensky dent’s concerns were addressed. rison testified that, on burden-sharing, on July 25.653 Senator Johnson similarly re- To address President Trump’s concerns ‘‘President Zelensky agreed with Vice Presi- lated that the President had shared concerns about corruption and burden-sharing, a tem- dent Pence that the Europeans should be about burden-sharing with him. He re- porary pause was placed on the aid to doing more’’ and ‘‘related to Vice President counted an August 31 conversation in which Ukraine. Mr. Morrison testified that ‘‘OMB Pence conversations he’d been having with President Trump described discussions he represented that . . . the President was con- European leaders about getting them to do would have with Angela Merkel, Chancellor cerned about corruption in Ukraine, and he more.’’ 682 of Germany. According to Senator Johnson, wanted to make sure that Ukraine was doing Moreover, on September 11, 2019, the Presi- President Trump explained: ‘‘Ron, I talk to enough to manage that corruption.’’ 667 And dent heard directly from Senator Angela and ask her, ‘Why don’t you fund OMB Deputy Associate Director for National Portman.683 Mr. Morrison testified that Sen- these things,’ and she tells me, ‘Because we Security Mark Sandy testified that he un- ator Portman made ‘‘the case . . . to the know you will.’ We’re schmucks, Ron. We’re derstood the pause to have been a result of President that it was the appropriate and schmucks.’’ 654 And Ambassador Taylor testi- the President’s ‘‘concerns about the con- prudent thing to do’’ to lift the pause on the fied that, when the Vice President met with tribution from other countries to aid.684 He testified that the Vice President President Zelensky on September 1, the Vice Ukraine.’’ 668 (who had just returned from Europe on Sep- President reiterated that ‘‘President Trump Over the course of the summer and early tember 6) and Senator Portman thus ‘‘con- wanted the Europeans to do more to support September, two series of developments vinced the President that the aid should be Ukraine.’’ 655 helped address the President’s concerns: disbursed immediately’’ 685—and the tem- President Trump’s burden-sharing con- First, President Zelensky secured a major- porary pause was lifted after the meeting.686 cerns were entirely legitimate. The evidence ity in the Ukrainian parliament and was able C. The Evidence Refutes House Democrats’ shows that the United States pays more than to begin reforms under his anti-corruption Claim that President Trump Conditioned a its fair share for Ukrainian assistance. As agenda. As Mr. Morrison explained, when Meeting with President Zelensky on Inves- Deputy Assistant Secretary Cooper testified, Zelensky was first elected, there was real tigations ‘‘U.S. contributions [to Ukraine] are far ‘‘concern about whether [he] would be a gen- more significant than any individual coun- uine reformer’’ and ‘‘whether he would genu- Lacking any evidence to show a connection try’’ and ‘‘EU funds tend to be on the eco- inely try to root out corruption.’’ 669 It was between releasing the security assistance nomic side,’’ rather than for ‘‘defense and se- also unclear whether President Zelensky’s and investigations, House Democrats fall curity.’’ 656 Even President Zelensky noted in party would ‘‘be able to get a workable ma- back on the alternative theory that Presi- the July 25 call that the Europeans were not jority in the Ukrainian Parliament’’ to im- dent Trump used a bilateral meeting as le- helping Ukraine as much as they should and plement the corruption reforms he prom- verage to pressure Ukraine to announce in- certainly not as much as the United ised.670 It was only later in the summer that vestigations. But no witness with any direct States.657 President’s Zelensky’s party won a majority knowledge supported that claim either. It is undisputed that a bilateral presidential-level 3. Pauses on Foreign Aid Are Often in the Rada—the Ukrainian parliament. As meeting was scheduled for September 1 in Necessary and Appropriate. Mr. Morrison testified, on ‘‘the opening day of the [new] Rada,’’ the Ukrainians worked Warsaw and then took place in New York Placing a temporary pause on aid is not City on September 25, 2019,687 without unusual. Indeed, the President has often through ‘‘an all-night session’’ to move forward with concrete reforms.671 Indeed, Mr. Ukraine saying or doing anything related to paused, re-evaluated, and even canceled for- investigations. eign aid programs. For example: Morrison and Ambassador Bolton were in 1. A Presidential Meeting Occurred Without In September 2019, the Administration an- Kyiv on August 27, and Mr. Morrison ‘‘ob- Precondition nounced that it was withholding over $100 served that everybody on the Ukrainian side million in aid to Afghanistan over concerns of the table was exhausted, because they had Contrary to House Democrats’ claims, the about government corruption.658 been up for days working on . . . reform legis- evidence shows that a bilateral meeting be- In August 2019, President Trump an- lation.’’ 672 President Zelensky ‘‘named a new tween President Trump and President nounced that the Administration and Seoul prosecutor general’’—a reform that the NSC Zelensky was scheduled without any connec- were in talks to ‘‘substantially’’ increase was ‘‘specifically interested in.’’ 673 He also tion to any statement about investigations. South Korea’s share of the expense of U.S. ‘‘had his party introduce a spate of legisla- Mr. Morrison—whose ‘‘responsibilities’’ in- military support for South Korea.659 tive reforms, one of which was particularly cluded ‘‘help[ing] arrange head of state visits In June, President Trump cut or paused significant,’’ namely, ‘‘stripping Rada mem- to the White House or other head of state over $550 million in foreign aid to El Sal- bers of their parliamentary immunity.’’ 674 meetings’’ 688—testified that he was trying to vador, Honduras, and Guatemala because Additionally, the High Anti-Corruption schedule a meeting without any restrictions those countries were not fairly sharing the Court of Ukraine commenced its work on related to investigations. He testified that burdens of preventing mass migration to the September 5, 2019.675 he understood that arranging ‘‘the White United States.660 As a result of these developments, Mr. House visit’’ was a ‘‘do-out’’ that ‘‘came In or around June, the Administration Morrison affirmed that by Labor Day there from the President’’ on the July 25 call,689 temporarily paused $105 million in military had been ‘‘definitive developments’’ to ‘‘dem- and he moved forward with a scheduling pro- aid to Lebanon. The Administration lifted onstrate that President Zelensky was com- posal.690 He worked with Ambassador Taylor the hold in December, with one official ex- mitted to the issues he campaigned on.676 and the NSC’s Senior Director responsible plaining that the Administration ‘‘contin- Second, the President heard from multiple for visits to ‘‘determine dates that would be ually reviews and thoroughly evaluates the parties about Ukraine, including trusted ad- mutually agreeable to President Trump and effectiveness of all United States foreign as- visers. Senator Johnson has said that he President Zelensky.’’ 691 But due to com- sistance to ensure that funds go toward ac- spoke to the President on August 31 urging peting scheduling requests, ‘‘it became clear tivities that further U.S. foreign policy and release of the security assistance. Senator that the earliest opportunity for the two national security interests.’’ 661 Johnson has stated that the President told Presidents to meet would be in Warsaw’’ at In September 2018, the Administration can- him then that, as to releasing the aid, the beginning of September.692 In other celled $300 million in military aid to Paki- ‘‘[w]e’re reviewing it now, and you’ll prob- words, Mr. Morrison made it clear that he

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00048 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.070 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S335 was trying to schedule the meeting in the or- Sondland’s mere presumptions about such a 1. It Was Entirely Appropriate for President dinary course. He did not say that anyone link are not evidence. As he put it, the most Trump To Ask About Possible Ukrainian told him to delay scheduling the meeting he could do is ‘‘repeat . . . what [he] heard Interference in the 2016 Election until President Zelensky had made some an- through Ambassador Volker from House Democrats’ theory that it would nouncement about investigations. Instead, Giuliani,’’ 702 who, he ‘‘presumed,’’ spoke to have been improper for President Trump to he explained that, after the July 25 call, he the President on this issue.703 But Ambas- ask President Zelensky about any role that understood that it was the President’s direc- sador Volker testified unequivocally that Ukraine played in interfering with the 2016 tion to schedule a visit, and he proceeded to there was no connection between the meeting election makes no sense. Uncovering any execute that direction. and investigations: form of foreign interference in a U.S. presi- Q. Did President Trump ever withhold a Ultimately, the notion that a bilateral dential election is squarely a matter of na- meeting with President Zelensky or delay a meeting between President Trump and Presi- tional interest. In this case, moreover, there meeting with President Zelensky until the dent Zelensky was conditioned on a state- is abundant information already in the pub- Ukrainians committed to investigate the al- ment about investigations is refuted by one lic domain suggesting that Ukrainian offi- legations that you just described concerning straightforward fact: a meeting was planned cials systematically sought to interfere in the 2016 Presidential election? for September 1, 2019 in Warsaw without the the 2016 election to support one candidate: Ukrainians saying a word about investiga- A. The answer to the question is no, if you want a yes-or-no answer. But the reason the Hillary Clinton. tions. As Ambassador Volker testified, Ad- To give just a few examples, a former ministration officials were ‘‘working on a bi- answer is no is we did have difficulty scheduling a meeting, but there was no linkage Democratic National Committee (DNC) con- lateral meeting to take place in Warsaw on sultant, Alexandra Chalupa, admitted to a the margins of the commemoration on the like that. Q. You said that you were not aware of any reporter that Ukraine’s embassy in the beginning of World War II.’’ 693 Indeed, by linkage between the delay in the Oval Office United States was ‘‘helpful’’ in her efforts to mid-August, U.S. officials expected the meeting between President Trump and Presi- collect dirt on President Trump’s then-cam- meeting to occur,694 and the Ukrainian gov- dent Zelensky and the Ukrainian commit- paign manager, Paul Manafort.711 As Politico ernment was making preparations.695 As it ment to investigate the two allegations as reported, ‘‘Chalupa said the [Ukrainian] em- turned out, President Trump had to stay in you described them, correct? bassy also worked directly with reporters re- the U.S. because Hurricane Dorian rapidly A. Correct.704 searching Trump, Manafort and Russia to intensified to a Category 5 hurricane, so he Sondland confirmed the same point. When point them in the right directions.’’ 712 A sent the Vice President to Warsaw in his asked if ‘‘the President ever [told him] per- former political officer in that embassy also place.696 sonally about any preconditions for any- claimed the Ukrainian government coordi- Even that natural disaster did not put off thing,’’ Sondland responded, ‘‘No.’’ 705 And nated directly with the DNC to assist the the meeting between the Presidents for long. when asked if the President ever ‘‘told [him] Clinton campaign in advance of the 2016 pres- They met at the next earliest possible date— about any preconditions for a White House idential election.713 And Nellie Ohr, a former September 25, 2019, on the sidelines of the meeting,’’ he again responded, ‘‘[p]ersonally, researcher for the firm that hired a foreign United Nations General Assembly. President no.’’ 706 No credible testimony has been ad- spy to produce the Steele Dossier, testified Zelensky confirmed that there were no pre- vanced supporting House Democrats’ claim to Congress that Serhiy Leshchenko, then a 697 conditions for this meeting. Nor was there of a quid pro quo. member of Ukraine’s Parliament, also pro- anything unusual about the meeting occur- D. House Democrats’ Charges Rest on the vided her firm with information as part of ring in New York rather than Washington. False Premise That There Could Have Been the firm’s opposition research on behalf of As Ambassador Volker verified, ‘‘these meet- No Legitimate Purpose To Ask President the DNC and the Clinton Campaign.714 Even ings between countries sometimes take a Zelensky About Ukrainian Involvement in high-ranking Ukrainian government officials long time to get scheduled’’ and ‘‘[i]t some- the 2016 Election and the Biden-Burisma played a role. For example, Arsen Avakov, 698 times just doesn’t happen.’’ Affair Ukraine’s Minister of Internal Affairs, called House Democrats cannot salvage their The charges in Article I are further flawed then-candidate Trump ‘‘an even bigger dan- claim by arguing that the high-profile meet- because they rest on the transparently erro- ger to the US than terrorism.’’ 715 ing in New York City did not count and that neous proposition that it would have been il- At least two news organizations conducted only an Oval Office meeting would do. Dr. legitimate for the President to mention two their own investigations and concluded Hill explained that what mattered was a bi- matters to President Zelensky: (i) possible Ukraine’s government sought to interfere in lateral presidential meeting, not the loca- Ukrainian interference in the 2016 election; the 2016 election. In January 2017, Politico tion of the meeting: and (ii) an incident in which then-Vice Presi- concluded that ‘‘Ukrainian government offi- [I]t wasn’t always a White House meeting dent Biden forced the dismissal of a Ukrain- cials tried to help Hillary Clinton and under- per se, but definitely a Presidential-level, ian anti-corruption prosecutor who report- mine Trump by publicly questioning his fit- you know, meeting with Zelensky and the edly had been investigating Burisma. House ness for office.’’ 716 And on the other side of President. I mean, it could’ve taken place in Democrats’ characterizations of the Presi- the Atlantic, a separate investigation by The Poland, in Warsaw. It could’ve been, you dent’s conversation are false. Moreover, as Financial Times confirmed Ukrainian election know, a proper bilateral in some other con- House Democrats frame their charges, to interference. The newspaper found that oppo- text. But in other words, a White House-level prove the element of ‘‘corrupt motive’’ at sition to President Trump led ‘‘Kiev’s wider Presidential meeting.699 the heart of Article I, they must establish political leadership to do something they The Ukrainians had such a meeting sched- (in their own words) that the only reason for would never have attempted before: inter- uled for September 1 in Warsaw (until Hurri- raising those matters would have been ‘‘to vene, however indirectly, in a US elec- cane Dorian disrupted plans), and the meet- obtain an improper personal political ben- tion.’’ 717 These efforts were designed to un- ing took place on September 25 in New efit.’’ 707 And as they cast their case, any in- dermine Trump’s candidacy because, as one York—all without anyone making any state- vestigation into those matters would have member of the Ukrainian parliament put it, ment about investigations. been ‘‘bogus’’ or a ‘‘sham’’ because, accord- the majority of Ukrainian politicians were 2. No Witness With Direct Knowledge Testi- ing to House Democrats, neither investiga- ‘‘on Hillary Clinton’s side.’’ 718 fied that President Trump Conditioned a tion would have been ‘‘premised on any le- Even one of House Democrats’ own wit- Presidential Meeting on Investigations gitimate national security or foreign policy nesses, Dr. Hill, acknowledged that some House Democrats’ tale of a supposed quid interest.’’ 708 That is obviously incorrect. Ukrainian officials ‘‘bet on Hillary Clinton pro quo involving a presidential meeting is It would have been entirely proper for the winning the election,’’ and so it was ‘‘quite further undermined by the fact that it rests President to ask President Zelensky to find evident’’ that ‘‘they were trying to curry entirely on mere speculation, hearsay, and out about any role that Ukraine played in favor with the Clinton campaign,’’ including innuendo. Not a single witness provided any the 2016 presidential election. Uncovering po- by ‘‘trying to collect information . . . on Mr. first-hand evidence that the President ever tential foreign interference in U.S. elections Manafort and on other people as well.’’ 719 linked a presidential meeting to announcing is always a legitimate goal. Similarly, it If even a fraction of all this is true, investigations. also would have been proper to ask about an Ukrainian interference in the 2016 election is Once again, House Democrats’ critical wit- incident in which Vice President Biden actu- squarely a matter of national interest. It is ness—Sondland—actually destroys their ally leveraged the threat of withholding one well settled that the United States has a case. He is the only witness who spoke di- billion dollars in U.S. loan guarantees to se- ‘‘compelling interest . . . in limiting the par- rectly to President Trump on the subject. cure the dismissal of a Ukrainian prosecutor ticipation of foreign citizens in activities of And Sondland testified that, when he broad- who was reportedly investigating Burisma— American democratic self-government, and ly asked the President what he wanted from at a time when his son, Hunter, was earning in thereby preventing foreign influence over Ukraine, the President answered unequivo- vast sums for sitting on Burisma’s board.709 the U.S. political process.’’ 720 Congress has cally: ‘‘I want nothing. I want no quid pro House Democrats’ own witnesses established forbidden foreigners’ involvement in Amer- quo. I just want Zelensky to do the right ample justification for asking questions ican elections.721 And President Trump made thing, to do what he ran on.’’ 700 about the Biden-Burisma affair, as they ac- clear more than a year ago that ‘‘the United Sondland clearly stated that ‘‘the Presi- knowledged that Vice President Biden’s con- States will not tolerate any form of foreign dent never discussed’’ a link between inves- duct raises, at the very least, the appearance meddling in our elections’’ during his Ad- tigations and a White House meeting,701 and of a conflict of interest.710 ministration.722 Even Chairman Schiff is on

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00049 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.071 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S336 CONGRESSIONAL RECORD — SENATE January 21, 2020 record agreeing that the Ukrainian efforts to tire Mueller investigation and false allega- Multiple witnesses said it appeared that aid the Clinton campaign described above tions about the Trump Campaign colluding Burisma hired Hunter Biden for improper would be ‘‘problematic,’’ if true.723 with Russia. He then broadly expressed in- reasons.749 A request for Ukraine’s assistance in this terest in ‘‘find[ing] out what happened with Hunter’s role on the board raised red flags case also would have been particularly ap- this whole situation’’ with Ukraine.733 After in several quarters. Chris Heinz, the step-son propriate because the Department of Justice mentioning a DNC server, the President of then-Secretary of State John Kerry, sev- had already opened a probe on a similar sub- made clear that he was casting a wider net ered his business relationship with Hunter, ject matter to examine the origins of foreign as he said that ‘‘[t]here are a lot of things citing Hunter’s ‘‘lack of judgment’’ in join- interference in the 2016 election that led to that went on’’ and again indicated that he ing the Burisma board as ‘‘a major cata- the false Russian-collusion allegations was interested in ‘‘the whole situation.’’ 734 lyst.’’ 750 against the Trump Campaign. In May of last He then noted his concern that President Contemporaneous press reports openly year, Attorney General Barr publicly an- Zelensky was ‘‘surrounding [him]self with speculated that Hunter’s role with Burisma nounced that he had appointed U.S. Attorney some of the same people.’’ 735 President might undermine U.S. efforts—led by his fa- John Durham to lead a review of the origins Zelensky clearly understood this to be a ref- ther—to promote an anti-corruption message and conduct of the Department of Justice’s erence to Ukrainian officials who had sought in Ukraine.751 Indeed, The Washington Post Russia investigation and targeting of mem- to undermine then-candidate Trump during reported that ‘‘[t]he appointment of the vice bers of the Trump campaign, including any the campaign, as he responded by imme- president’s son to a Ukrainian oil board potential wrongdoing.724 As of October, it diately noting that he ‘‘just recalled our am- looks nepotistic at best, nefarious at was publicly revealed that aspects of the bassador from [the] United States.’’ 736 That worst.’’ 752 probe had shifted to a criminal investiga- ambassador, of course, had penned a harsh, Within the Obama Administration, Hunt- tion.725 As the White House explained when undiplomatic op-ed criticizing then-can- er’s position caused the special envoy for en- the President announced measures to ensure didate Trump, and it had been widely re- ergy policy, Amos Hochstein, to ‘‘raise[] the cooperation across the federal government ported that a DNC operative met with matter with Biden.’’ 753 Deputy Assistant with Mr. Durham’s probe, his investigation Ukrainian embassy officials during the cam- Secretary of State Kent testified that he, will ‘‘ensure that all Americans learn the paign to dig up information detrimental to too, voiced concerns with Vice President truth about the events that occurred, and President Trump’s campaign.737 Biden’s office.754 the actions that were taken, during the last Notably, Democrats have not always be- In fact, every witness who was asked Presidential election and will restore con- lieved that asking Ukraine for assistance in agreed that Hunter’s role created at least fidence in our public institutions.’’ 726 uncovering foreign election interference con- the appearance of a conflict of interest for Asking for foreign assistance is also rou- stituted a threat to the Republic. To the his father.755 tine. Such requests for cooperation are com- contrary, in 2018, three Democratic Sen- On February 2, 2016, the Ukrainian Pros- mon and take many different forms, both ators—Senators Menendez, Leahy, and Dur- ecutor General obtained a court order to formal and informal.727 Requests can be bin—asked Ukraine to cooperate with the seize Zlochevsky’s property.756 made pursuant to a Mutual Legal Assistance Mueller investigation and ‘‘strongly According to press reports, Vice President Treaty, and the U.S. has such a treaty with encourage[d]’’ then-Prosecutor General Biden then spoke with Ukraine’s President Ukraine that specifically authorizes requests Yuriy Lutsenko to ‘‘halt any efforts to im- Poroshenko three times by telephone on for cooperation.728 There can also be infor- pede cooperation.’’ 738 Not a single Democrat February 11, 18, and 19, 2016.757 mal requests for assistance.729 Because the in either house has called for sanctions Vice President Biden has openly bragged President is the Chief Executive and chief against them. Nothing that President Trump that, around that time, he threatened Presi- law enforcement officer of the federal gov- said went further than the senators’ request, dent Poroshenko that he would withhold one ernment—as well as the ‘‘sole organ of the and efforts to claim that it was somehow im- billion dollars in U.S. loan guarantees unless federal government in the field of inter- proper are rank hypocrisy. the Ukrainians fired the Prosecutor General national relations’’ 730—requesting foreign 2. It Would Have Been Appropriate for Presi- who was investigating Burisma.758 assistance is well within his ordinary role. dent Trump To Ask President Zelensky Deputy Assistant Secretary Kent testified Given the self-evident national interest at About the Biden-Burisma Affair that the Prosecutor General’s removal ‘‘be- stake in identifying any Ukrainian role in House Democrats’ theory that there could came a condition of the loan guarantee.’’ 759 the 2016 election, House Democrats resort to not have been any legitimate basis for a On March 29, 2016, Ukraine’s parliament distorting the President’s words. They strain President of the United States to raise the dismissed the Prosecutor General.760 In Sep- to recast his request to uncover historical Biden-Burisma affair with President tember 2016, a Kiev court cancelled an arrest truth about the last election as if it were Zelensky is also wrong. The following facts warrant for Zlochevsky.761 something relevant only for the President’s have been publicly reported: In January 2017, Burisma announced that personal political interest in the next elec- Burisma is a Ukrainian energy company all cases against the company and tion. Putting words in the President’s with a reputation for corruption. Lt. Col. Zlochevsky had been closed.762 mouth, House Democrats pretend that, be- Vindman called it a ‘‘corrupt entity.’’ 739 It On these facts, it would have been wholly cause the President mentioned a hacked was founded by a corrupt oligarch, Mykola appropriate for the President to ask Presi- DNC server, he must have been pursuing a Zlochevsky, who has been under several in- dent Zelensky about the whole Biden- claim that Ukraine ‘‘rather than Russia’’ vestigations for money laundering.740 Burisma affair. The Vice President of the had interfered in the 2016 election 731—and Deputy Assistant Secretary of State Kent United States, while operating under an ap- that assertion, they claim, was relevant sole- testified that Burisma’s reputation was so parent conflict of interest, had possibly used ly for boosting President Trump’s 2020 presi- poor that he dissuaded the United States a billion dollars in U.S. loan guarantees to dential campaign. But that convoluted chain Agency for International Development force the dismissal of a prosecutor who may of reasoning is hopelessly flawed. (USAID) from co-sponsoring an event with have been pursuing a legitimate corruption To start, simply asking about any Ukrain- Burisma. He testified that he did not think investigation. In fact, on July 22, 2019—just ian involvement in the 2016 election—includ- co-sponsorship with a company of Burisma’s days before the July 25 call—The Washington ing with respect to hacking a DNC server— reputation was ‘‘appropriate for the U.S. Post reported that the fired prosecutor ‘‘said does not imply that Russia did not attempt Government.’’ 741 he believes his ouster was because of his in- to interfere with the 2016 election. It is en- In April 2014, Hunter Biden was recruited terest in [Burisma]’’ and ‘‘[h]ad he remained tirely possible that foreign nationals from to sit on Burisma’s board.742 At that time, in his post . . . he would have questioned more than one country sought to interfere in his father had just been made the ‘‘public Hunter Biden.’’ 763 Even if the Vice Presi- our election by different means (or coordi- face of the [Obama] administration’s han- dent’s motives were pure, the possibility nated means), and for different reasons. Un- dling of Ukraine,’’ 743 and Britain’s Serious that a U.S. official used his position to derail covering all the facts about any interference Fraud Office (SFO) had just recently frozen a meritorious investigation made the Biden- benefits the United States by laying bare all $23 million in accounts linked to Zlochevsky Burisma affair a legitimate subject to raise. foreign attempts to meddle in our elections. as part of a money-laundering investiga- Indeed, any President would have wanted to And if the facts uncovered end up having any tion.744 Zlochesvsky fled Ukraine sometime make clear both that the United States was influence on the 2020 election, that would not in 2014.745 not placing any inquiry into the incident off be improper. House Democrats cannot place Hunter Biden had no known qualifications limits and that, in the future, there would be an inquiry into historical facts off limits for serving on Burisma’s board of directors, no efforts by U.S. officials do something as based on fears that the facts might harm and just two months before joining the ‘‘horrible’’ as strong-arming Ukraine into their interests in the next election. board, he had been discharged from the Navy dropping corruption investigations while op- In addition, House Democrats have simply Reserve for testing positive for cocaine on a erating under an obvious conflict of inter- misrepresented President Trump’s words. drug test.746 He himself admitted in a tele- est.764 The President did not ask narrowly about a vised interview that he would not have got- As the transcript shows, President DNC server alone, but rather raised a whole ten the board position ‘‘if [his] last name Zelensky recognized precisely the point. He collection of issues related to the 2016 elec- wasn’t Biden.’’ 747 responded to President Trump by noting tion. President Trump introduced the topic Nevertheless, Hunter Biden was paid more that ‘‘[t]he issue of the investigation of the by noting that ‘‘our country has been than board members at energy giants like case is actually the issue of making sure to through a lot,’’ 732 which referred to the en- ConocoPhillips.748 restore the honesty[.]’’ 765

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00050 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.072 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S337 It is absurd for House Democrats to argue menu of options is that the Constitution re- wrong. But that’s not fair to Judge Nixon, to that any reference to the Biden-Burisma af- quires two-thirds of Senators present to the Senate, or to the American people.’’ 783 fair had no purpose other than damaging the agree on the specific basis for conviction. A B. The Articles Are Unconstitutionally President’s potential political opponent. The vote on a duplicitous article, however, could Duplicitous two participants on the call—the leaders of never provide certainty that a two-thirds Here, each Article is impermissibly two sovereign nations—clearly understood majority had actually agreed upon a ground duplicitous. Each Article presents a smor- the discussion to advance the U.S. foreign for conviction. Instead, such a vote could be gasbord of multiple, independent acts as pos- policy interest in ensuring that Ukraine’s the product of an amalgamation of votes sible bases for conviction. Under the um- new President felt free, in President resting on several different theories, no sin- brella charge of ‘‘abuse of power,’’ Article I Zelensky’s words, to ‘‘restore the honesty’’ gle one of which would have garnered two- offers Senators a menu of at least four dif- to corruption investigations.766 thirds support if it had been presented sepa- ferent bases for conviction: (1) ‘‘corruptly’’ Moreover, House Democrats’ accusations rately. Accordingly, duplicitous articles like requesting that Ukraine announce an inves- rest on the false and dangerous premise that those exhibited here are facially unconstitu- tigation into the Biden-Burisma affair; (2) Vice President Biden somehow immunized tional. ‘‘corruptly’’ requesting that Ukraine an- his conduct (and his son’s) from any scrutiny A. The Constitution Requires Two-Thirds of nounce an investigation into alleged Ukrain- by declaring his run for the presidency. Senators To Agree on the Specific Act that ian interference in the 2016 election; (3) There is no such rule of law. It certainly was Is the Basis for Conviction and Thus Pro- ‘‘corrupt[ly]’’ conditioning the release of not a rule applied when President Trump was hibits Duplicitous Articles Ukraine’s security assistance on these inves- a candidate. His political opponents called In impeachment trials, the Constitution tigations; and (4) ‘‘corrupt[ly]’’ conditioning for investigations against him and his chil- mandates that ‘‘no Person shall be convicted a White House meeting on these investiga- dren almost daily.767 Nothing in the law re- without the Concurrence of two thirds of the tions.784 Article II similarly invites Senators quires the government to turn a blind eye to Members present.’’ 772 That provision re- to pick and choose among at least 10 dif- potential wrongdoing based on a person’s quires two-thirds agreement on the specific ferent bases for obstruction including: (1) di- status as a candidate for President of the act that warrants conviction. That is why recting the White House and agencies, ‘‘with- United States. If anything, the possibility the Senate has repeatedly made clear in out lawful cause or excuse,’’ not to produce that Vice President Biden may ascend to the prior impeachments that acquittal is re- documents in response to a congressional highest office in the country provides a com- quired when duplicitous articles are pre- subpoena; or (2) directing one or more of nine pelling reason for ensuring that, when he sented. different individuals, ‘‘without lawful cause forced Ukraine to fire its Prosecutor Gen- In the Clinton impeachment,773 for exam- or excuse,’’ not to testify in response to a eral, his family was not corruptly benefit- ple, Senator Carl Levin explained his vote to congressional subpoena.785 ting from his actions. acquit by pointing out that the House had As a result, the Articles invite the danger Importantly, mentioning the whole Biden- ‘‘made a significant and irreparable mistake of an unconstitutional conviction if less than Burisma affair would have been entirely jus- in the actual drafting of the articles.’’ 774 Be- two-thirds of Senators agree that any par- tified as long as there was a reasonable basis cause each article alleged multiple acts of ticular act was an abuse of power or obstruc- to think that looking into the matter would wrongdoing, it would be ‘‘impossible’’ ever to tion. With at least four independent bases al- advance the public interest. To defend mere- determine ‘‘whether a two-thirds majority of leged for abuse of power, Article I invites ly asking a question, the President would not the Senate actually agreed on a particular conviction if as few as 18 Senators agree that bear any burden of showing that Vice Presi- allegation.’’ 775 Senator Charles Robb echoed any one alleged act occurred and constituted dent Biden (or his son) actually committed those concerns, explaining that ‘‘the uncon- an abuse of power. any wrongdoing. stitutional bundling of charges’’ in these ar- The deficiency in the articles cannot be By contrast, under their own theory of the ticles ‘‘violates this constitutional require- remedied by dividing the articles, because case, for the House Managers to carry their ment’’ of two-thirds agreement to convict.776 that is prohibited.786 The only constitutional burden of proving that merely raising the As he pointed out, because Article II, in par- option is to reject the articles and acquit the matter was ‘‘illegitimate,’’ they would have ticular, ‘‘contain[ed] 7 subparts each alleging President. to prove that raising the issue could have no a separate act of obstruction of justice, the legitimate purpose whatsoever. Their theory CONCLUSION bundling of these allegations would allow re- is obviously false. And especially on this The Articles of Impeachment presented by moval of the President if only 10 Senators record, the House Managers cannot possibly House Democrats are constitutionally defi- agreed on each of the 7 separate sub- carry that burden, because no such definitive cient on their face. The theories underpin- parts.’’ 777 Senator Chris Dodd agreed, ex- proof exists. Nobody, not even House Demo- ning them would do lasting damage to the plaining that ‘‘[t]his smorgasbord approach crats’ own witnesses, could testify that the separation of powers under the Constitution to the allegations’’ was a threshold legal Bidens’ conduct did not at least facially and to our structure of government. The Ar- flaw that even called for dismissal outright raise an appearance of a conflict of interest. ticles are also the product of an unprece- and pointed to the ‘‘deeply troubling pros- And while House Democrats repeatedly in- dented and unconstitutional process that de- pect’’ of ‘‘convict[ing] and remov[ing] with- sist that any suggestions that Vice President nied the President every basic right guaran- out two-thirds of the Senate agreeing on pre- Biden or his son did anything wrong are ‘‘de- teed by the Due Process Clause and funda- cisely what [the President] did wrong.’’ 778 mental principles of fairness. These Articles bunked conspiracy theories’’ and ‘‘without The Senate similarly rejected a duplicitous 768 they lack any evidence to support reflect nothing more than the ‘‘persecution merit,’’ article against President Andrew Johnson. those bald assertions, because they have of an intemperate or designing majority in That article alleged that Johnson had de- steadfastly cut off any real inquiry into the the House of Representatives’’ 787 that the clared in a speech that the Thirty-Ninth Bidens’ conduct. For example, they have re- Framers warned against. The Senate should Congress was not lawful and that he com- fused to call Hunter Biden to testify.769 In- reject the Articles of Impeachment and ac- mitted three different acts in pursuit of that stead, they have been adamant that Ameri- quit the President immediately. declaration.779 In opposing the article, Sen- Respectfully submitted, cans must simply accept the diktat that the ator John Henderson emphasized ‘‘the great JAY ALAN SEKULOW, Bidens’ conduct could not possibly have been difficulty’’ presented by the omnibus article part of a course of conduct in which the Of- Counsel to President in ascertaining ‘‘what it really charges.’’ 780 Donald J. Trump, fice of the Vice President was misused to Senator Garrett Davis similarly complained Washington, DC. protect the financial interests of a family that the allegations were apparently ‘‘drawn PAT A. CIPOLLONE, member. with studied looseness, duplicity, and vague- The Senate cannot accept House Demo- Counsel to the Presi- ness, as with the purpose to mislead’’ and crats’ mere say-so as proof. Especially in the dent, The White should have ‘‘been separately’’ and ‘‘dis- context of this wholly partisan impeach- House. tinctly stated.’’ 781 ment, House Democrats’ assurance of, ‘‘trust The Senate has also rejected unconsti- January 20, 2020. us, there’s nothing to see here,’’ is not a per- tutionally duplicitous articles of impeach- ENDNOTES missible foundation for building a case to re- ment against judges. In the impeachment of 1. U.S. Const. art. II, § 4. move a duly elected President from office— Judge Nixon, for example, Senator Frank 2. 4 William Blackstone, Commentaries on especially given Chairman Schiff’s track Murkowski rejected the ‘‘the omnibus nature the Laws of England *256. record for making false claims in order to of article III,’’ which charged the judge with 3. See Impeachment Inquiry into President 770 damage the President. making multiple different false statements, Donald J. Trump: Constitutional Grounds for IV. The Articles Are Structurally Deficient and and he ‘‘agree[d] with the argument that the Presidential Impeachment Before the H.R. Can Only Result in Acquittal article could easily be used to convict Judge Comm. on the Judiciary, 116th Cong. (2019) The Articles also suffer from a fatal struc- Nixon by less than the super majority vote (written statement of Professor Jonathan tural defect. Put simply, the articles are required by the Constitution.’’ 782 Senator Turley, Geo. Wash. Univ. Law Sch., at 15, impermissibly duplicitous—that is, each ar- Herbert Kohl explained why this defect was https://perma.cc/QU4H-FZC4); H.R. Res. 611, ticle charges multiple different acts as pos- fatal: ‘‘The House is telling us that it’s OK to 106th Cong. (1998); H.R. Comm. on the Judici- sible grounds for sustaining a conviction.771 convict Judge Nixon on [the article] even if ary, Impeachment of William Jefferson Clinton, The problem with an article offering such a we have different visions of what he did President of the United States, H.R. Rep. No.

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00051 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.074 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S338 CONGRESSIONAL RECORD — SENATE January 21, 2020 105–830, 105th Cong. 143 (1998) (additional 5, 2019), https://perma.cc/H7BR-HNC4 (‘‘House 48. Letter from Sen. Ron Johnson to Jim views of Rep. Bill McCollum); H.R. Comm. on leaders have signaled they hope to wrap up Jordan, Ranking Member, H.R. Comm. on the Judiciary, Impeachment of Richard M. proceedings in their chamber before Con- Oversight & Reform, and Devin Nunes, Rank- Nixon, President of the United States, H.R. gress leaves for the December holidays .... ing Member, H.R. Permanent Select Comm. Rep. No. 93–1305, 93d Cong. 1–3 (1974). ‘Wouldn’t that be a great Christmas gift for on Intelligence, at 6 (Nov. 18, 2019). 4. H.R. Comm. on the Judiciary, Impeach- it to all wrap up by Christmas?’ Rep. Val 49. Memorandum of Tel. Conversation with ment of Donald J. Trump, President of the Demings (D–FL) asked.’’); Mary Clare President Zelensky of Ukraine, at 2 (July 25, United States, H.R. Rep. No. 116–346, 116th Jalonick, What’s Next in Impeachment: A Busy 2019) (July 25 Call Mem.). The transcript is Cong. 99 (2019) (HJC Report). December, and on to 2020, AP News (Nov. 23, attached as Appendix A. 5. Id. 2019), https://perma.cc/2HJH-QLMR (‘‘Time is 50. M. Yovanovitch Dep. Tr. at 140:24–141:3 6. Id. at 103; see also Trial Mem. of the U.S. running short if the House is to vote on im- (Oct. 11, 2019); see also Impeachment Inquiry: House of Representatives at 4. peachment by Christmas, which Democrats Ambassador Marie ‘‘Masha’’ Yovanovitch Be- 7. U.S. Const. art. II, § 1. privately say is the goal.’’). fore The H.R. Permanent Select Comm. on Intel- 8. HJC Report at 101. 27. Examining the Allegations of Misconduct ligence, 116th Cong. 76–77 (Nov. 15, 2019) 9. See id. at 102. Against IRS Commissioner John Koskinen (Part (Yovanovitch Public Hearing). 10. H.R. Res. 755, 116th Cong. art. II (2019). 51. W. Taylor Dep. Tr. at 155:2–156:6 (Oct. 11. This advice was memorialized in a writ- II): Hearing Before the H.R. Comm. on the Judi- ciary, 114th Cong. 3 (2016) (statement of Rep. 22, 2016). ten opinion on January 19, 2020, which is at- 52. Turley Written Statement, supra note 3, tached as Appendix C. See Memorandum from Jerrold Nadler). 28. Background and History of Impeachment: at 4. Steven A. Engel, Assistant Attorney Gen- Hearing Before the Subcomm. on the Constitu- 53. Trial Mem. of the U.S. House of Rep- eral, Office of Legal Counsel, to Pat A. tion of the H.R. Comm. on the Judiciary, 105th resentatives at 24; HJC Report at 4, 6. Cipollone, Counsel to the President, Re: Cong. 17 (1998) (statement of Rep. Jerrold 54. H.R. Res. 755 art. I. House Committees’ Authority to Investigate for Nadler). 55. Trial Mem. of the U.S. House of Rep- Impeachment, at 1 (Jan. 19, 2020) (Impeachment 29. Alex Rogers, Whistleblower Went to Intel- resentatives at 2, 18; HJC Report at 10. Inquiry Authorization). 56. Impeachment Inquiry: Dr. Fiona Hill and 12. Testimonial Immunity Before Congress of ligence Committee for Guidance Before Filing Complaint, CNN (Oct. 2, 2019), https:// Mr. David Holmes Before the H.R. Permanent the Former Counsel to the President, 43 Op. Select Comm. on Intelligence, 116th Cong. 112:2– O.L.C. l, *1 (May 20, 2019); see also infra note perma.cc/5NVZ-W78H. 30. Zack Stanton, Pelosi: Unless We Impeach 9 (Nov. 21, 2019) (Hill-Holmes Public Hear- 296 (collecting prior opinions). ing). 13. See Assertion of Executive Privilege with Trump, ‘Say Hello to a President-King’, Polit- ico (Dec. 18, 2019), https://perma.cc/XLX5- 57. Michael Kranish & David L. Stern, As Respect to Clemency Decision, 23 Op. O.L.C. 1, Vice President, Biden Said Ukraine Should In- 5 (1999) (emphasis added). XE7Z. 31. Matea Gold, The Campaign to Impeach crease Gas Production. Then His Son Got a Job 14. Exclusion of Agency Counsel from Con- with a Ukrainian Gas Company, Wash. Post gressional Depositions in the Impeachment Con- President Trump Has Begun, Wash. Post (Jan. 20, 2017), https://perma.cc/2376-PS6U. (July 22, 2019), https://perma.cc/6JD2-KFCN text, 43 Op. O.L.C. l, at *4 (Nov. 1, 2019). (‘‘In an email interview with The Post, 15. Bordenkircher v. Hayes, 434 U.S. 357, 363 32. Mark S. Zaid (@MarkSZaidEsq), Twit- Shokin [the fired prosecutor] said he believes (1978) (citations omitted); see also, e.g., United ter (Jan. 30, 2017 6:54 PM), https://perma.cc/ his ouster was because of his interest in States v. Goodwin, 357 U.S. 368, 372 (1982) BFV6-MKRE. [Burisma] .... Had he remained in his post, (‘‘For while an individual certainly may be 33. Katelyn Polantz, Mueller Investigation Shokin said, he would have questioned Hun- penalized for violating the law, he just as Cost $32 Million, Justice Department Says, CNN (July 24, 2019), https://perma.cc/DX6K-58Y3; ter Biden.’’). certainly may not be punished for exercising 58. Compare Tobias Hoonhout, Hunter Biden a protected statutory or constitutional Special Counsel Robert S. Mueller, III, Re- port on the Investigation into Russian Inter- Served as ‘Ceremonial Figure’ on Burisma right.’’). Board for $80,000 Per Month, National Rev. 16. Harvey Berkman, Top Profs: Not Enough ference in the 2016 Presidential Election, vol. I (Oct. 18, 2019), https://perma.cc/7WBU-XHCJ to Impeach, The National Law J. (Oct. 5, 1998) at 13 (Mar. 2019), https://perma.cc/EGB4- (reporting Hunter Biden’s monthly com- (quoting Professor Tribe), reprinted in 144 WA76. pensation to be $83,333 monthly, or nearly $1 Cong. Rec. H10031 (1998). 34. Rebecca Shabad and Alex Moe, Impeach- 17. H.R. Comm. on the Judiciary, 105th ment Inquiry Ramps up as Judiciary Panel million per year), with 2019 Proxy Statement, Cong., Ser. No. 18, Impeachment Inquiry: Adopts Procedural Guidelines, NBC News ConocoPhillips, at 30 (Apr. 1, 2019), https:// William Jefferson Clinton, President of the (Sept. 12, 2019), https://perma.cc/4H7N-6ZPD. perma.cc/8HK2-XJTL (showing director com- United States, Consideration of Articles of 35. See Clerk, H.R., Final Vote Results for pensation averaging approximately $302,000), Impeachment 398 (Comm. Print 1998). Roll Call 695 on Agreeing to Article I of the and ConocoPhillips, Fortune 500, https://for- 18. See Transcript of Pelosi Weekly Press Resolution (Dec. 18, 2019), http://clerk tune.com/fortune500/2019/conocophillips/ (list- Conference Today (Oct. 2, 2019) (statement of house.gov/evs/2019/roll695.xml; Clerk, H.R., ing ConocoPhillips as #86). Rep. Adam Schiff), https://perma.cc/RM2N- Final Vote Results for Roll Call 696 on 59. See, e.g., Hill-Holmes Public Hearing, F2RC. Agreeing to Article II of the Resolution (Dec. supra note 56, at 89–90; Impeachment Inquiry: 19. Turley Written Statement, supra note 3, 18, 2019), http://clerk.house.gov/evs/2019/ Ms. Jennifer Williams & Lt. Col. Alexander at 42 (emphasis added) (ellipsis in original). roll696.xml. Vindman, 116th Cong. 129 (Nov. 19, 2019); 20. 3 The Debates in the Several State Conven- 36. 144 Cong. Rec. H11786 (1998) (statement Yovanovitch Public Hearing, supra note 50, tions, on the Adoption of the Federal Constitu- of Rep. Jerrold Nadler). at 135–36; Taylor Dep. Tr. at 90:3–5; G. Kent tion, as Recommended by the General Conven- 37. 145 Cong. Rec. S1582 (1999) (statement of Interview Tr. at 227:3–8 (Oct. 15, 2019); Im- tion at Philadelphia, in 1787, 401 (J. Elliot ed. Sen. Patrick Leahy). peachment Inquiry: Ambassador William B. 1836). 38. 144 Cong. Rec. H11786 (1998) (statement Taylor & Mr. George Kent Before the H.R. Per- 21. U.S. Const. art. I, § 2, cl. 5. of Rep. Jerrold Nadler). manent Select Comm. on Intelligence, 116th 22. Watkins v. United States, 354 U.S. 178, 39. Nicole Gaudiano and Eliza Collins, Ex- Cong. 148:23–25 (Nov. 13, 2019); see also 200–10 (1957); see also United States v. Rumely, clusive: Nancy Pelosi Vows ‘Different World’ for Sondland Public Hearing, supra note 41, at 345 U.S. 41, 42–43 (1953); Exxon Corp. v. FTC, Trump, No More ‘Rubber Stamp’ in New Con- 171. 589 F.2d 582, 592 (D.C. Cir. 1978) (‘‘To issue a gress, USA Today (Jan. 3, 2019), https:// 60. Adam Taylor, Hunter Biden’s New Job at valid subpoena, . . . a committee or sub- perma.cc/55PK-3PZL. a Ukrainian Gas Company is a Problem for U.S. committee must conform strictly to the res- 40. Tierney Sneed, DOJ Declined to Act on Soft Power, Wash. Post (May 14, 2014), https:// olution establishing its investigatory powers Criminal Referral in Trump’s Ukraine Smear perma.cc/7DNH-GPF4. . . . .’’); Tobin v. United States, 306 F.2d 270, Campaign, Talking Points Memo (Sept. 25, 61. Kent Interview Tr. at 227:1–23; Adam 275 (D.C. Cir. 1962) (‘‘[T]he first issue we must 2019), https://perma.cc/HA3M-FBGU (quoting Entous, Will Hunter Biden Jeopardize His Fa- decide is whether Congress gave the Judici- Statement of Kerri Kupec, Spokesperson for ther’s Campaign?, The New Yorker (July 1, ary Committee . . . authority . . . to con- the Department of Justice). 2019), https://perma.cc/WB24-FTJG. duct the sweeping investigation undertaken 41. Impeachment Inquiry: Ambassador Gordon 62. Rules of Procedure and Practice in the in this case.’’). Sondland Before the H.R. Permanent Select Senate when Sitting on Impeachment Trials, 23. Speaker Pelosi Announcement of Im- Comm. on Intelligence, 116th Cong. 148–49 (Nov. Rule XXIII (1986), in Senate Manual Con- peachment Inquiry, C-SPAN (Sept. 24, 2019), 20, 2019) (Sondland Public Hearing). taining the Standing Rules, Orders, Laws https://www.c-span.org/video/?464684-1/speak- 42. Id. at 150–51. and Resolutions Affecting the Business of er-pelosi-announces-formal-impeachment-in- 43. G. Sondland Interview Tr. at 297:22–298:1 the United States Senate, S. Doc. 113–1, 113th quiry-president-trump. (Oct. 17, 2019). Cong. 228 (2014). 24. See Impeachment Inquiry Authorization, 44. Sondland Public Hearing, supra note 41, 63. The Federalist No. 65, at 400 (Alexander infra Appendix C, at 1–3. at 70. Hamilton) (Clinton Rossiter ed., 1961). 25. Perry v. Leeke, 488 U.S. 272, 283 n.7 (1989) 45. K. Volker Interview Tr. at 36:1–9 (Oct. 3, 64. Letter from Thomas Jefferson to James (quoting 5 J. Wigmore, Evidence § 1367 (J. 2019). Madison (Feb. 15, 1798), in 3 Memoir, Cor- Chadbourn ed. 1974)). 46. Id. respondence, and Miscellanies, from the Papers 26. See, e.g., Andrew Prokop, Why Democrats 47. Sondland Public Hearing, supra note 41, of Thomas Jefferson 373 (Thomas Jefferson Are Moving So Fast on Impeachment, Vox (Dec. at 40. Randolph ed., 1830).

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00052 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.051 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S339 65. 2 Joseph Story, Commentaries on the digm of bribery that the Framers had in 109. Clinton Senate Trial, supra note 78, vol. Constitution § 743 (1833). mind as he cited King Louis XIV of France’s IV at 2578, 2580 (statement of Sen. Joseph R. 66. The Federalist No. 66, at 402 (Alexander bribe of England’s King Charles II and ar- Biden, Jr.). Hamilton) (Clinton Rossiter ed., 1961). gued, ‘‘no one would say that we ought to ex- 110. U.S. Const. art. II, § 1. 67. Trial of Andrew Johnson, President of the pose ourselves to the danger of seeing the 111. See Clinton v. Jones, 520 U.S. 681, 712 United States, Before the Senate of the United first Magistrate in foreign pay without being (1997) (Breyer, J., concurring in the judg- States on Impeachment by the House of Rep- able to guard [against] it by displacing him.’’ ment). resentatives for High Crimes and Misdemeanors, 2 The Records of the Federal Convention of 112. Tribe, supra note 106, at 723. The 40th Cong., vol. III, at 328 (1868) (opinion of 1787, at 68–69 (Max Farrand ed., 1911). unique importance of a presidential im- Sen. Lyman Trumbull). 83. U.S. Const. art. I, § 3, cl. 6; art. II, § 4. peachment is reflected in the text of the 68. The Federalist No. 65, at 400 (Alexander 84. U.S. Const. art. I, § 3, cl. 7 (emphasis Constitution as it requires, in contrast to all Hamilton) (Clinton Rossiter ed., 1961). added). other cases of impeachment, that the Chief 69. U.S. Const. art. I, § 3, cl. 6. 85. U.S. Const. art. I, § 3, cl. 6 (emphasis Justice of the United States preside over any 70. Michael J. Gerhardt, The Lessons of Im- added). Senate trial of a President. U.S. Const. art. peachment History, 67 Geo. Wash. L. Rev. 603, 86. Id. I, § 3, cl. 6. 617 (1999) (noting that, ‘‘[g]iven the division 87. U.S. Const. art. III, § 2, cl. 3 (‘‘The Trial 113. Nixon v. Fitzgerald, 457 U.S. 731, 750 of impeachment authority between the of all Crimes, except in Cases of Impeach- (1982). House and the Senate, the Senate has . . . ment, shall be by Jury . . . .’’); U.S. Const. 114. U.S. Const. art. II, § 3. the opportunity to review House decisions on art. II, § 2, cl. 1 (‘‘[H]e shall have Power to 115. U.S. Const. art. II, § 2, cl. 1. what constitutes an impeachable offense’’ grant Reprieves and Pardons for Offenses 116. United States v. Curtiss-Wright Export and has rejected House judgments in the against the United States, except in Cases of Corp., 299 U.S. 304, 320 (1936). past). Impeachment.’’). 117. Memorandum from Robert G. Dixon, 71. Proceedings in the Trial of Andrew John- 88. See 4 Blackstone, Commentaries *74–75. Jr., Assistant Attorney General, Office of son, President of the United States, Before the 89. See Berger, supra note 73, at 71. Legal Counsel, Re: Amenability of the Presi- U.S. Senate on Articles of Impeachment, 40th 90. Id. at 86–87. Shortly before the Conven- dent, Vice President and other Civil Officers to Cong. 524 (1868). tion agreed to the ‘‘high Crimes and Mis- Federal Criminal Prosecution While in Office, 72. Id. demeanors’’ standard, delegates rejected the at 32 (Sept. 24, 1973). 73. See, e.g., Raoul Berger, Impeachment: use of ‘‘high misdemeanor’’ in the Extra- 118. Clinton Senate Trial, supra note 78, vol. The Constitutional Problems 86 (1973). dition Clause because ‘‘high misdemeanor’’ IV at 2793 (statement of Sen. Bob Graham). 74. U.S. Const. art. II, § 4. was thought to have ‘‘a technical meaning 119. H.R. Res. 611, 105th Cong. (1998); H.R. 75. Circuit City Stores v. Adams, 532 U.S. 105, too limited.’’ 2 Records of the Federal Conven- Comm. on the Judiciary, Impeachment of Wil- 114–15 (2001) (quoting 2A N. Singer, Suther- tion, supra note 82, at 443; see also Berger, liam Jefferson Clinton, President of the United land on Statutes and Statutory Construction supra note 73, at 74. States, H.R. Rep. No. 105–830, 105th Cong. 143 § 47.17 (1991)). 91. 4 Blackstone, Commentaries *256 (empha- (1998) (additional views of Rep. Bill McCol- 76. Background and History of Impeachment: sis added). Blackstone, in fact, listed numer- lum) (‘‘President Clinton actively sought to Hearing Before the Subcomm. on the Constitu- ous ‘‘high misdemeanors’’ that might subject thwart the due administration of justice by tion of the H.R. Comm. on the Judiciary, 105th an official to impeachment, including ‘‘mal- repeatedly committing the felony crimes of Cong. 69 (1998) (Clinton Judiciary Comm. Hear- administration.’’ Id. at *121. perjury, witness tampering, and obstruction ing on Background of Impeachment) (state- 92. 2 Records of the Federal Convention, of justice.’’). ment of Professor Matthew Holden, Jr., supra note 82, at 499. 120. H.R. Comm. on the Judiciary, Impeach- Univ. of Va., Dept. of Gov’t and Foreign Af- 93. Id. at 550. ment of Richard M. Nixon, President of the fairs) (‘‘[I]t seems that this late-added provi- 94. Id. United States, H.R. Rep. No. 93–1305, 93d Cong. sion refers to such ‘other high Crimes and 95. Id. 1–4 (1974); see also id. at 3 (alleging that Nixon Misdemeanors,’ as would be comparable in 96. Id. ‘‘The conscious and deliberate char- ‘‘violat[ed] the constitutional rights of citi- their significance to ‘treason’ and ‘brib- acter of [the Framers’] rejection [of ‘mal- zens’’ and ‘‘contravene[ed] the laws gov- ery.’ ’’); Arthur M. Schlesinger, Jr., Reflec- administration’] is accentuated by the fact erning agencies of the executive branch.’’). tions on Impeachment, 67 Geo. Wash. L. Rev. that a good many state constitutions of the 121. Id. at 34 (asserting that Nixon ‘‘caused 693, 693 (1999) (‘‘According to the legal rule of time did have ‘maladministration’ as an im- action . . . to cover up the Watergate break- construction ejusdem generis, the other high peachment ground.’’ Black & Bobbitt, supra in. This concealment required perjury, de- crimes and misdemeanors must be on the note 82, at 27. struction of evidence, obstruction of jus- same level and of the same quality as trea- 97. 2 Records of the Federal Convention, tice—all of which are crimes’’). son and bribery.’’). supra note 82, at 64. 122. Article II claimed that President 77. U.S. Const. art. III, § 3, cl. 1. This defini- 98. Id. at 337. Nixon ‘‘violat[ed] the rights of citizens,’’ tion is repeated in the United States crimi- 99. 4 The Debates in the Several State Conven- ‘‘contraven[ed] the laws governing agencies nal code: ‘‘Whoever, owing allegiance to the tions on the Adoption of the Federal Constitu- of the executive branch,’’ and ‘‘authorized United States, levies war against them or ad- tion, at 127 (Jonathan Elliot 2nd ed. 1987). and permitted to be maintained a secret in- heres to their enemies, giving them aid and 100. 3 The Debates in the Several State Con- vestigative unit within the Office of the comfort within the United States or else- ventions on the Adoption of the Federal Con- President . . . [that] engaged in covert and where, is guilty of treason . . . .’’ 18 U.S.C. stitution, at 401 (Jonathan Elliot 2nd ed. 1987). unlawful activities.’’ Id. at 3. Although the § 2381 (2018). 101. Berger, supra note 73, at 86. House Judiciary Committee’s report de- 78. Proceedings of the U.S. Senate in the Im- 102. Clinton Senate Trial, supra note 78, vol. scribed Article II generally as involving peachment Trial of President William Jefferson IV at 2842 (statement of Sen. Patrick J. ‘‘abuse of the powers of the office of Presi- Clinton, Vol. IV: Statements of Senators Re- Leahy); see also id. at 2883 (statement of Sen. dent,’’ id. at 139, that was not the actual garding the Impeachment Trial of William Jef- James M. Jeffords) (‘‘The framers inten- charge included in the articles of impeach- ferson Clinton, S. Doc. 106–4 at 2861 (1999) tionally set this standard at an extremely ment. The actual charges in the rec- (Clinton Senate Trial) (statement of Sen. Pat- high level to ensure that only the most seri- ommended article of impeachment included rick J. Leahy). ous offenses would justify overturning a pop- specific violations of laws. 79. See Clinton Judiciary Comm. Hearing on ular election.’’). 123. H.R. Rep. Com. No. 7, 40th Cong. 60 Background of Impeachment, supra note 76, at 103. 2 Joseph Story, Commentaries on the (1867) (emphasis added). 40 (statement of Gary L. McDowell, Director, Constitution § 749 (1833); see also 1 James 124. Cong. Globe, 40th Cong., 2d Sess. app. Inst. for U.S. Studies, Univ. of London) Bryce, The American Commonwealth 283 (1888) 63 (1867). (‘‘[T]he most dominant source of authority (‘‘Impeachment . . . is the heaviest piece of 125. Michael Les Benedict, The Impeachment on the common law for those who wrote and artillery in the congressional arsenal, but and Trial of Andrew Johnson 102 (1973). ratified the Constitution was Sir William because it is so heavy it is unfit for ordinary 126. Cong. Globe, 40th Cong., 2d Sess., 1616– Blackstone and his justly celebrated Com- use. It is like a hundred-ton gun which needs 18, 1638–42 (1868). mentaries on the Laws of England (1765–69). complex machinery to bring it into position, 127. See, e.g., Berger, supra note 73, at 56–57. That was a work that was described by Madi- an enormous charge of powder to fire it, and Some scholars dispute the characterization son in the Virginia ratifying convention as a large mark to aim at.’’). that many judicial impeachments do not in- nothing less than ‘a book which is in every 104. Black & Bobbitt, supra note 82, at 111. volve charges that amount to violations of man’s hand.’ ’’). 105. The Declaration of Independence para. law. See, e.g., Frank Thompson, Jr., & Daniel 80. 4 William Blackstone, Commentaries on 2 (U.S. 1776). H. Pollitt, Impeachment of Federal Judges: An the Laws of England *139. 106. Laurence H. Tribe, Defining ‘‘High Historical Overview, 49 N.C. L. Rev. 87, 118 81. Akhil Reed Amar, On Impeaching Presi- Crimes and Misdemeanors’’: Basic Principles, 67 (1970) (‘‘Except for a few abberations [sic] in dents, 28 Hofstra L. Rev. 291, 302 (1999). Geo. Wash. L. Rev. 712, 723 (1999). the early-1800[s] period of unprecedented po- 82. Charles L. Black, Jr. & Philip Bobbitt, 107. 144 Cong. Rec. H10018 (1998) (statement litical upheaval, Congress has refused to im- Impeachment: A Handbook 110 (2018). of Rep. Jerrold Nadler). peach a judge for lack of ‘good behaviour’ Gouverneur Morris’s comments at the Con- 108. Id. at H11786 (statement of Rep. Jerrold unless the behavior was both job-related and stitutional Convention indicate the para- Nadler). criminal.’’).

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00053 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.052 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S340 CONGRESSIONAL RECORD — SENATE January 21, 2020 128. U.S. Const. art. III, 1; see also John R. fore Filing Complaint Against Trump, Wash. tion of the H.R. Comm. on the Judiciary, 105th Labovitz, Presidential Impeachment 92–93 Post (Oct. 2, 2019), https://perma.cc/23UT- Cong. 48 (1998) (‘‘Of these distinctive fea- (1978) (The Good Behavior Clause ‘‘could be BGJL. tures, the one of greatest contemporary con- interpreted as a separate standard for the 147. Mark S. Zaid (@MarkSZaidEsq), Twit- cern is the founders’ choice of the words— impeachment of judges or it could be inter- ter (Jan. 30, 2017, 6:54 PM), https://perma.cc/ treason, bribery, and other high crimes and preted as an aid in applying the term ‘high Z9LS-TDM2 (‘‘#coup has started. First of misdemeanors’—for the purpose of narrowing crimes and misdemeanors’ to judges. Which- many steps. #rebellion. #impeachment will the scope of the federal impeachment proc- ever interpretation was adopted, it was clear follow ultimately. #lawyers.’’). ess.’’) (statement of Professor Michael that the clause made a difference in judicial 148. Letter from IC Staffer to Richard Gerhardt) (Clinton Judiciary Comm. Hearing impeachments, confounding the application Burr, Chairman, S. Comm. on Intelligence, on Background of Impeachment). of these cases to presidential impeach- and Adam Schiff, Chairman, H.R. Permanent 173. The Federalist No. 48, at 309 (James ment.’’); Clinton Senate Trial, supra note 78, Select Comm. on Intelligence (Aug. 12, 2019), Madison) (Clinton Rossiter ed., 1961). vol. IV at 2692 (statement of Sen. Max https://perma.cc/MT4D–634A. 174. Jack N. Rakove, Statement on the Back- Cleland) (citing the ‘‘Good Behaviour’’ 149. Letter from Michael K. Atkinson, In- ground and History of Impeachment, 67 Geo. clause and explaining ‘‘that there is indeed a spector General of the Intelligence Commu- Wash. L. Rev. 682, 688 (1999). The Framers’ different legal standard for impeachment of nity, to Joseph Maguire, Acting Director of ‘‘predominant fear’’ was ‘‘oppression at the Presidents and Federal judges’’). National Intelligence, at 5 (Aug. 26, 2019), hands of Congress.’’ Raoul Berger, Impeach- 129. Amar, supra note 81, at 304. https://perma.cc/2SV7–BUP5. ment: The Constitutional Problems 4 (1973); see 130. See Cass R. Sunstein, Impeaching the 150. Speaker Pelosi Announcement of Im- also Consumer Energy Council of Am. v. Fed. President, 147 U. Pa. L. Rev. 279, 304 (1998). peachment Inquiry, C-SPAN (Sept. 24, 2019), Energy Regulatory Comm’n, 673 F.2d 425, 464 131. Black & Bobbitt, supra note 82, at 119. https://www.c-span.org/video/?464684–1/speak- (D.C. Cir. 1982) (‘‘Perhaps the greatest fear of 132. Clinton Senate Trial, supra note 78, vol. er-pelosi-announces-formal-impeachment-in- the Framers was that in a representative de- IV at 2575 (statement of Sen. Joseph R. quiry-president-trump. mocracy the Legislature would be capable of Biden, Jr.). Numerous other Senators distin- 151. Donald J. Trump (@realDonaldTrump), using its plenary lawmaking power to swal- guished the lower standard for judicial im- Twitter (Sept. 24, 2019, 11:12 AM), https:// low up the other departments of the Govern- peachments. See, e.g., id. at 2692 (statement perma.cc/UZ4E-D3ST (‘‘I am currently at the ment.’’); Ronald C. Kahn, Process and Rights of Sen. Max Cleland) (‘‘After review of the United Nations representing our Country, Principles in Modern Constitutional Theory: record, historical precedents, and consider- but have authorized the release tomorrow of The Supreme Court and Constitutional Democ- ation of the different roles of Presidents and the complete, fully declassified and racy, 37 Stan. L. Rev. 253, 260 (1984) (‘‘[T]he Federal judges, I have concluded that there unredacted transcript of my phone conversa- Framers’ greatest fear was the unlawful use is indeed a different legal standard for im- tion with President Zelensky of Ukraine.’’). of legislative power.’’). The ratification de- peachment of Presidents and Federal 152. July 25 Call Mem., infra Appendix A. bates also reflected fear of Congress. Berger, judges.’’); id. at 2811 (statement of Sen. Ed- 153. Whistleblower Disclosure: Hearing Before supra, at 119. ward M. Kennedy) (‘‘Removal of the Presi- the H.R. Permanent Select Comm. on Intel- 175. 2 The Records of the Federal Convention dent of the United States and removal of a ligence, 116th Cong. (Sept. 26, 2019). of 1787, at 66 (Max Farrand ed., 1911) (Records Federal judge are vastly different.’’). 154. K. Volker Interview Tr. (Oct. 3, 2019). of the Federal Convention) (Charles Pinck- 133. Sunstein, supra note 130, at 300; see also 155. H.R. Res. 660, 116th Cong. (2019). ney). 176. Id. at 69 (Gouverneur Morris). Clinton Judiciary Comm. Hearing on Back- 156. Id. ground of Impeachment, supra note 76, at 350 177. Id. at 65. 157. Press Release, H.R. Permanent Select 178. See supra notes 92–100 and accom- (statement of Professors Frank O. Bowman, Comm. on Intelligence, House Intelligence panying text. III, Stephen L. Sepinuck, Gonzaga Univer- Committee Releases Draft Report as Part of Im- 179. 2 Records of the Federal Convention, sity School of Law) (‘‘[C]omparative analysis peachment Inquiry (Dec. 3, 2019), https:// supra note 175, at 550 (James Madison). suggests that Congress has applied a discern- perma.cc/B23P–7NBD. 180. Alexander Hamilton’s description in ibly different standard to the removal of 158. The Impeachment Inquiry into President Federalist No. 65 does not support House judges.’’). Donald J. Trump: Constitutional Grounds for Democrats’ theory of a vague abuse-of-power 134. To the extent that the Senate voted in Presidential Impeachment: Hearing Before the offense. In an often-cited passage, Hamilton the impeachment trial of Judge Claiborne H.R. Comm. on Judiciary, 116th Cong. (Dec. 4, observed that the subjects of impeachment not to require all Senators to apply the be- 2019). are ‘‘offenses which proceed from the mis- yond-a-reasonable-doubt standard, see 132 159. Nicholas Fandos, Pelosi Says House Will conduct of public men, or, in other words, Cong. Rec. 29,153 (1986), that decision in a ju- Draft Impeachment Charges Against Trump, from the abuse or violation of some public dicial impeachment has little relevance here. N.Y. Times (Dec. 5, 2019), https://perma.cc/ trust.’’ The Federalist No. 65, at 396 (Alex- 135. Clinton Senate Trial, supra note 78, vol. T7SC-W2VX. ander Hamilton) (Clinton Rossiter ed., 1961). IV at 3052 (statement of Sen. Russell D. Fein- 160. The Impeachment Inquiry into President Hamilton was merely noting fundamental gold); see also id. at 2563 (statement of Sen. Donald J. Trump: Presentations from the House characteristics common to impeachable of- Patty Murray) (‘‘If we are to remove a Presi- Permanent Select Comm. on Intelligence and fenses—that they involve (or ‘‘proceed dent for the first time in our Nation’s his- House Judiciary Comm.: Hearing Before the from’’) misconduct in public office or abuse tory, none of us should have any doubts.’’). H.R. Comm. on Judiciary, 116th Cong. (Dec. 9, of public trust. He was no more saying that 136. See, e.g., Proceedings of the U.S. Senate 2019). ‘‘abuse or violation of some public trust’’ in the Impeachment Trial of President William 161. Press Release, H.R. Comm. on Judici- provided, in itself, the definition of a charge- Jefferson Clinton, Volume II: Floor Trial Pro- ary, Chairman Nadler Announces the Introduc- able offense than he was saying that ‘‘mis- ceedings, S. Doc. 106–4 at 1876 (1999) (state- tion of Articles of Impeachment Against Presi- conduct of public men’’ provided such a defi- ment of Sen. Chris Dodd); Clinton Senate dent Donald J. Trump (Dec. 10, 2019), https:// nition. Trial, supra note 78, vol. IV at 2548 (state- perma.cc/9ERV–9PZX. 181. III Hinds’ Precedents 2361, at 763 (1907) ment of Sen. Kay Bailey Hutchison); id. at 162. House Judiciary Passes Articles of Im- (Hinds’ Precedents). Justice Chase was ac- 2559 (statement of Sen. Kent Conrad); id. at peachment Against President Trump, C-SPAN quitted by the Senate. Id. at § 2363, at 770–71. 2562 (statement of Sen. Tim Hutchinson); id. (Dec. 13, 2019), https://www.c-span.org/video/ He had been charged with purported offenses at 2642 (statement of Sen. George V. Voino- ?467395-1/house-judiciary-committee-ap- that turned largely on claims that he had vich). proves-articles-impeachment-23-17. misapplied the law in his rulings while sit- 137. Id. at 2623 (statement of Sen. Barbara 163. H.R. Res. 755, 116th Cong. (2019); Clerk, ting as a circuit justice. See William H. A. Mikulski). H.R., Final Vote Results for Roll Call 695 on Rehnquist, Grand Inquests 76–77, 114 (1992). 138. U.S. Const. art. I, § 2, cl. 5; id. at § 3, cl. Agreeing to Article I of the Resolution (Dec. His acquittal has been credited with having 6. 139. 1 John Ash, New and Complete Dic- 18, 2019), http://clerk.house.gov/evs/2019/ ‘‘a profound effect on the American judici- tionary of the English Language (1775) (defini- roll695.xml; Clerk, H.R., Final Vote Results ary,’’ because the Senate’s rejection of the tion of ‘‘impeachment’’: ‘‘[a] public charge of for Roll Call 696 on Agreeing to Article II of charges was widely viewed as ‘‘safeguard[ing] something criminal, an accusation’’). the Resolution (Dec. 18, 2019), http:// the independence’’ of federal judges. Id. at 140. Black & Bobbitt, supra note 82, at 14. clerk.house.gov/evs/2019/roll696.xml. 114. 141 Cole v. Arkansas, 333 U.S. 196, 201 (1948) 164. HJC Report at 129–30. 182. HJC Report at 5. (emphases added). 165. U.S. Const. art. I, § 3, cl. 6. 183. See, e.g., id. at 38–40. 142. Stirone v. United States, 361 U.S. 212, 217 166. U.S. Const. art. II, § 4. 184. Id. at 39. House Democrats rely on sev- (1960). 167. HJC Report at 44. eral secondary sources, each of which ex- 143. Id. 168. See id. at 48–53; Trial Mem. of U.S. tracts general categories of impeachment 144. July 25 Call Mem., infra Appendix A. House of Representatives at 10–11. cases from specific prosecutions. See, e.g., 145. Julian Barns et al., Schiff Got Early Ac- 169. See supra Standards Part B.1. Berger, supra note 174, at 70 (asserting that count of Accusations as Whistle-Blower’s Con- 170. U.S. Const. art. II, § 4. impeachment cases are ‘‘reducible to intel- cerns Grew, N.Y. Times (Oct. 2, 2019), https:// 171. 4 William Blackstone, Commentaries on ligible categories’’ including those involving perma.cc/5KWF-U7ZS. the Laws of England *256 (emphasis added). ‘‘abuse of official power’’); Staff of H.R. 146. Ellen Nakashima, Whistleblower Sought 172. Background and History of Impeachment: Comm. on the Judiciary, 93d Cong., Constitu- Informal Guidance from Schiff’s Committee Be- Hearing Before the Subcomm. on the Constitu- tional Grounds for Presidential Impeachment 7

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00054 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.052 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S341 (Comm. Print 1974) (arguing that ‘‘particular 208. Trial Mem. of U.S. House of Represent- 224. HJC Report at 44. allegations of misconduct’’ in English cases atives at 9; HJC Report at 31, 46, 70, 78. 225. Id. at 99. suggest several general types of damage to 209. 4 Elliot, Debates in the Several State 226. Id. the state, including ‘‘abuse of official Conventions on the Adoption of the Federal 227. Id. at 103. power’’). Constitution 126 (2d ed. 1888). 228. U.S. Const. art. II, § 1. 185. H.R. Comm. on the Judiciary, Impeach- 210. Id. at 127. 229 United States v. Curtiss-Wright Exp. ment of Richard M. Nixon, President of the 211. Id. Corp., 299 U.S. 304, 319 (1936) (citation omit- United States, H.R. Rep. No. 93–1305, 93d Cong. 212. Id. ted). 213. See HJC Report at 45–48. 371 (1974) (Minority Views of Messrs. Hutch- 230. Id. 214. H.R. Rep. No. 93–1305, at 1 2. ‘‘This re- inson, Smith, Sandman et al.). 231. See Zivotofsky ex rel. Zivotofsky v. Kerry, port . . . contains clear and convincing evi- 186. See H.R. Comm. on the Judiciary, Im- 135 S. Ct. 2076, 2086 (2015). dence that the President caused action—not peachment of William Jefferson Clinton, Presi- 232. U.S. Const. art. II, § 1; cf. Joseph Story, only by his own subordinates but by agencies dent of the United States, H.R. Res. 611, 105th Commentaries on the Constitution § 1450 (1833) of the United States . . .—to cover up the Cong. (1998); see also H.R. Rep. No. 105–830, (‘‘One motive, which induced a change of the Watergate break-in. This concealment re- 105th Cong. 143 (1998) (additional views of choice of the president from the national quired perjury, destruction of evidence, ob- Rep. Bill McCollum) (‘‘President Clinton ac- legislature, unquestionably was, to have the struction of justice—all of which are tively sought to thwart the due administra- sense of the people operate in the choice of crimes.’’ Id. at 33–34. the person, to whom so important a trust tion of justice by repeatedly committing the 215. Id. at 3. While the House Judiciary was confided.’’); Hamdi v. Rumsfeld, 542 U.S. felony crimes of perjury, witness tampering, Committee’s report described Article II gen- and obstruction of justice.’’). erally as involving ‘‘abuse of the powers of 507, 531 (2004) (plurality opinion) (empha- 187. H.R. Rep. No. 93–1305, at 1–3; see also id. the office of President,’’ id. at 139, it is sig- sizing that ‘‘our Constitution recognizes that at 10 (alleging that Nixon ‘‘violated the con- nificant that the actual charge the Judiciary core strategic matters of warmaking belong stitutional rights of citizens’’ and ‘‘con- Committee specified in the recommended ar- in the hands of those who are best positioned travened the laws governing agencies of the ticle of impeachment was not framed in and most politically accountable for making executive branch’’). terms of that amorphous concept. To the them’’). 188. See supra notes 123–126 and accom- contrary, the article of impeachment itself 233. HJC Report at 48–53, 79–81. panying text. charged unlawful actions and dropped the 234. Id. at 131; see also id. at 31 (pretending 189. See III Hinds’ Precedents § 2407, at 843. vague terminology of ‘‘abuse of power.’’ that House Democrats’ have presented ‘‘the 190. H.R. Rep. Com. No. 7, 40th Cong. 60 216. The third recommended article strongest possible case for impeachment and (1867) (Minority Views) (emphasis added); see charged President Nixon with defying con- removal from office’’). also Michael Les Benedict, The Impeachment gressional subpoenas ‘‘without lawful cause 235. Trial Mem. of U.S. House of Represent- and Trial of Andrew Johnson 102 (1973). or excuse’’ and asserted that the President atives at 10–11 (quoting George Washington 191. Cong. Globe, 40th Cong., 2d Sess., 1616– had violated the assignment of the ‘‘sole Farewell Address (1796), https://perma.cc/ 18, 1638–42 (1868); see also Charles L. Black & power of impeachment’’ to the House by re- 6FSA–8HBN (Washington Farewell Address)); Philip Bobbitt, Impeachment: A Handbook, sisting subpoenas. Id. at 4. It also provides no HJC Report at 31 (quoting Washington Fare- New Edition 114 (2018); HJC Report at 48 precedent for House Democrats’ abuse-of- well Address). (‘‘Rather than directly target President power theory. 236. Washington Farewell Address, supra Johnson’s faithless execution of the laws, 217. See, e.g., Debate on Articles of Impeach- note 235. and his illegitimate motives in wielding ment: Hearings Before the H.R. Comm. on the 237. William R. Casto, Foreign Affairs and power, the House resorted to charges based Judiciary, 93d Cong. 412 (1974) (statement of the Constitution in the Age of the Fighting Sail, on the Tenure of Office Act.’’). Rep. Don Edwards) (‘‘[A]rticle II charges 19–34, 59–82 (2006). 192. HJC Report at 33 (emphasis in origi- President Nixon with intentional violations 238. Washington Farewell Address, supra nal). of the Constitution, chiefly amendments one, note 235. 193. United States v. Marengo Cty. Comm’n, four, five, and six.’’). 239. If anything, the concerns of the Found- 731 F.2d 1546, 1558 (11th Cir. 1984). 218. HJC Report at 45. ing generation would suggest here that the 194. See Berger, supra note 174, at 294–95. 219. Id. at 47–48. U.S. should not be giving aid to Ukraine to 195. Id. at 295. 220. Id. at 48 n.244. halt Russian aggression because that is a for- 196. Obama Administration’s Abuse of Power: 221. Cong. Globe, 40th Cong., 2d Sess., 1616– eign entanglement. The foreign policy needs Hearing Before the H.R. Comm. on the Judici- 18, 1638–42 (1868). of the Nation have obviously changed. ary, 112th Cong. 20 (2012) (written statement 222. Even the source they cite undermines 240. See HJC Report at 49–50. of Professor Michael J. Gerhardt). House Democrats’ theories. Tribe and Matz 241. 2 Records of the Federal Convention, 197. 2 Records of the Federal Convention, explain that one of the most important les- supra note 175, at 68. supra note 175, at 550. sons from Johnson’s impeachment is ‘‘it 242. Id. at 69–70. 198. U.S. Const. art. II, § 4. really does matter which acts are identified 243. U.S. Const. art. I, § 9, cl. 8; 2 Records of 199. Berger, supra note 174, at 118 (internal in articles of impeachment’’ and that im- the Federal Convention, supra note 175, at 389. quotation marks omitted). 200. U.S. Const. art. II, § 4. peachment proceedings are ‘‘technical and 244. Benjamin Franklin explained the 201. U.S. Const. art. I, § 3, cl. 6; art. II, § 4. legalistic.’’ Laurence Tribe & Joshua Matz, Framers adopted a narrow definition of trea- 202. U.S. Const. art. I, § 3, cl. 7 (emphasis To End a Presidency: The Power of Impeach- son because ‘‘prosecutions for treason were added). ment 54 (2018). generally virulent; and perjury too easily 203. U.S. Const. art. I, § 3, cl. 6 (emphasis 223. Benedict, supra note 190, at 102. Even if made use of against innocence.’’ 2 Records of added). President Johnson’s impeachment did sup- the Federal Convention, supra note 175, at 348. 204. Id. port House Democrats’ novel theory—which Article III, Section 3 not only defines trea- 205. U.S. Const. art. III, § 2, cl. 3 (‘‘The Trial it does not—it does not provide a model to be son in specific terms but it establishes a high of all Crimes, except in Cases of Impeach- emulated. As House Democrats’ hand-picked standard of proof, requiring the testimony of ment, shall be by Jury....’’); U.S. Const. expert, Professor Michael Gerhardt, has ex- two witnesses or a confession. art. II, § 2, cl. 1 (‘‘[H]e shall have Power to plained, the Johnson impeachment is a ‘‘du- 245. HJC Report at 52, 80. grant Reprieves and Pardons for Offenses bious precedent’’ because it is ‘‘widely re- 246. 2 Records of the Federal Convention, against the United States, except in Cases of garded as perhaps the most intensely par- supra note 175, at 65 (George Mason) (‘‘One Impeachment.’’). tisan impeachment rendered by the House’’— objection agst. Electors was the danger of 206. The offense of bribery, of course, in- at least until now. Michael J. Gerhardt, The their being corrupted by the Candidates: & volves an element of intent, and thus requires Federal Impeachment Process 179 (3d ed. 2019); this furnished a peculiar reason in favor of some evaluation of the accused’s motiva- see also Berger, supra note 174, at 295 (‘‘The impeachments whilst in office.’’); id. at 69 tions and state of mind. See 4 Blackstone, impeachment and trial of Andrew Johnson, (Gouverneur Morris) (‘‘The Executive ought Commentaries *139 (‘‘BRIBERY . . . is when a to my mind, represent a gross abuse of the therefore to be impeachable for . . . Cor- judge, or other person concerned in the ad- impeachment process. . . .’’); Jonathan rupting his electors.’’). ministration of justice, takes any undue re- Turley, Democrats Repeat Failed History with 247. U.S. Const. art. II, § 4. ward to influence his behavior in his of- Mad Dash to Impeach Donald Trump, The Hill 248. United States v. Nixon, 418 U.S. 683, 710– fice.’’). There is a wide gulf, however, be- (Dec. 17, 2019), https://perma.cc/4Y3X-FCBW 11 (1974) (explaining that ‘‘courts have tradi- tween proving a specific offense such as brib- (‘‘The Johnson case has long been widely re- tionally shown the utmost deference to Pres- ery that involves wrongful conduct along garded as the very prototype of an abusive idential responsibilities’’ for foreign policy with the requisite intent and House Demo- impeachment.... Some critics have actu- and national security and emphasizing that crats’ radical theory that any lawful action ally cited Johnson as precedent to show that claims of privilege in this area would receive may be treated as an impeachable offense impeachment can be done on purely political a higher degree of deference than invoca- based on a characterization of subjective in- grounds. In other words, the very reason the tions of ‘‘a President’s generalized interest tent alone. Johnson impeachment is condemned by his- in confidentiality’’); Assertion of Executive 207. H.R. Rep. No. 93–1305, at 371 (Minority tory is now being used today as a justifica- Privilege for Documents Concerning Conduct of Views of Messrs. Hutchinson, Smith, Sand- tion to dispense with standards and defini- Foreign Affairs with Respect to Haiti, 20 Op. man et al.). tions of impeachable acts.’’). O.L.C. 6, 6 (1996) (citing Nixon, 418 U.S. at 705–

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00055 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.053 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S342 CONGRESSIONAL RECORD — SENATE January 21, 2020 13); see also Department of the Navy v. Egan, First, the court, like the Committees, mis- ies’’ to those ‘‘necessary or appropriate in 484 U.S. 518, 529 (1988) (‘‘The Court also has read a House annotation to Jefferson’s Man- the exercise of its responsibilities under rule recognized the generally accepted view that ual. See, e.g., Letter from Elijah E. Cum- X’’); H.R. Rule XI.2(m)(1) (limiting the power foreign policy was the province and responsi- mings, Chairman, House Oversight Com- to hold hearings and issue subpoenas to ‘‘the bility of the Executive.’’) (internal quotation mittee, et al., to John Michael Mulvaney, purpose of carrying out any of [the commit- marks and citation omitted). Acting White House Chief of Staff, at 2 (Oct. tee’s] functions and duties under this rule 249. Nixon, 418 U.S. at 708. 4, 2019). The language quoted by the court and rule X (including any matters referred to 250. See Prosecution for Contempt of Congress states that ‘‘various events have been credit under clause 2 of rule XII)’’). of an Executive Branch Official Who Has As- ited with setting an impeachment in mo- 266. The mere referral of an impeachment serted a Claim of Executive Privilege, 8 Op. tion.’’ H. Doc. 114–192, 114th Cong. § 603 (2017). resolution by itself could not authorize a O.L.C. 101, 140 (1984) (‘‘[T]he Constitution But that does not mean that any of these committee to begin an impeachment in- does not permit Congress to make it a crime ‘‘various events’’ automatically confers au- quiry. The ‘‘Speaker’s referral authority for an official to assist the President in as- thority on a committee to begin an impeach- under Rule XII is . . . limited to matters serting a constitutional privilege that is an ment inquiry. It merely acknowledges the within a committee’s Rule X legislative ju- integral part of the President’s responsibil- historical fact that there is more than one risdiction’’ and ‘‘may not expand the juris- ities under the Constitution.’’). way the House may receive information that diction of a committee by referring a bill or 251. Press Release, Transcript of Pelosi may prompt the House to then authorize a resolution falling outside the committee’s Weekly Press Conference Today (Oct. 2, 2019), committee to pursue an impeachment inves- Rule X legislative authority.’’ Impeachment https://perma.cc/YPM4WCNX (Rep. Adam tigation. Inquiry Authorization, infra Appendix C, at 30; Schiff, Chairman of the House Intelligence Second, the court misread III Hinds’ Prece- see H.R. Rule XII.2(a); 18 Deschler’s Prece- Committee, stating that ‘‘any action like dents § 2400 as showing that ‘‘a resolution dents of the House of Representatives, app. that, that forces us to litigate or have to ‘authoriz[ing]’ HJC ‘to inquire into the offi- at 578 (1994) (Deschler’s Precedents). If a consider litigation, will be considered fur- cial conduct of Andrew Johnson’ was passed mere referral could authorize an impeach- ther evidence of obstruction of justice’’). after HJC ‘was already considering the sub- ment inquiry, then a single House member 252. Impeachment Inquiry into President Don- ject.’ ’’ Id. at *27. That section discusses two could trigger the delegation of the House’s ald J. Trump: Constitutional Grounds for Presi- House votes on two separate resolutions that ‘‘sole Power of Impeachment’’ to a com- dential Impeachment Before the H.R. Comm. on occurred weeks apart. The House first voted mittee and thus, for the House’s most serious the Judiciary, 116th Cong. (Dec. 4, 2019) (writ- to authorize the Johnson inquiry (which the investigations, end-run Rule XI.1(b)(1)’s limi- ten statement of Professor Jonathan Turley, court missed), and it then voted to refer a tation of committee investigations to the George Washington Univ. Law School, at 42, second matter (the resolution cited by the committees’ jurisdiction under Rule X. https://perma.cc/QU4H-FZC4) (emphasis court), which touched upon President John- 267. H.R. Res. 988, 93d Cong. 1, 13 (1974), re- added). son’s impeachment, ‘‘to the Committee on printed in H.R. Select Comm. on Comms., 253. Memorandum from Steven A. Engel, the Judiciary, which was already considering Committee Reform Amendments of 1974, H.R. Assistant Attorney General, Office of Legal the subject.’’ III Hinds’ Precedents § 2400. The Rep. No. 93–916, 93d Cong. 367, 379 (1974); see Counsel, to Pat A. Cipollone, Counsel to the court also misread the Nixon precedent as also 120 Cong. Rec. 32,962 (1974). President, Re: House Committees’ Authority to involving an ‘‘investigation well before the That language was stripped from the reso- Investigate for Impeachment, at 1–3 (Jan. 19, House passed a resolution authorizing an im- lution by an amendment, see 120 Cong. Rec. 2020) (Impeachment Inquiry Authorization), peachment inquiry.’’ In re Application of the 32,968–72 (1974), the amended resolution was infra Appendix C. Comm. on the Judiciary, 2019 WL 5485221, at adopted, id. at 34,469–70, and impeachment 254. See Watkins v. United States, 354 U.S. *27. But that pre-resolution work did not in- has remained outside the scope of any stand- 178, 206, 215 (1957) (holding that congressional volve any exercise of the House’s impeaching committee’s jurisdiction ever since. Cf. subpoenas were invalid where they exceeded ment power and was instead limited to pre- Barenblatt v. United States, 360 U.S. 109, 117–18 ‘‘the mission[] delegated to’’ a committee by liminary, self-organizing work conducting (1959) (disapproving of ‘‘read[ing] [a House the House); United States v. Rumely, 345 U.S. ‘‘research into the constitutional issue of de- rule] in isolation from its long history’’ and 41, 44 (1953) (holding that the congressional fining the grounds for impeachment’’ and ignoring the ‘‘persuasive gloss of legislative committee was without power to compel the ‘‘collecting and sifting the evidence avail- history’’). production of certain information because able in the public domain.’’ Staff of H.R. 268. H.R. Res. 988, 93d Cong. (Oct. 8, 1974); the requests exceeded the scope of the au- Comm. on the Judiciary, Constitutional Staff of the Select Comm. on Comms., Com- thorizing resolution); Tobin v. United States, Grounds for Presidential Impeachment, 93d mittee Reform Amendments of 1974, 93d Cong. 306 F.2d 270, 276 (D.C. Cir. 1962) (reversing a Cong. 1–3 (Comm. Print 1974). The Chairman 117 (Comm. Print 1974). contempt conviction on the basis that the of the Committee himself acknowledged 269. Certain committees, not relevant here, subpoena requested documents outside the that, to actually launch an inquiry, a House had authority to issue subpoenas. Rules of scope of the Subcommittee’s authority to in- resolution ‘‘is a necessary step.’’ 120 Cong. the House of Representatives of the United vestigate). Rec. 2351 (Feb. 6, 1974 statement of Rep. Ro- States, H.R. Doc. No. 114–192, at 584 (2017). 255. Watkins, 354 U.S. at 200–10. dino). 270. Congressional Quarterly, Impeachment 256. U.S. Const. art. I, § 2, cl. 5. Third, the court misread House Resolution and the U.S. Congress 20 (Robert A. Diamond 257. Rumely, 345 U.S. at 42–44; see also Trump 430, which was adopted on June 11, 2019. The ed., 1974). v. Mazars USA, LLP, 940 F.3d 710, 722 (D.C. court plucked out language from the resolu- 271. 3 Deschler’s Precedents ch. 14, § 15.2, at Cir. 2019); Exxon Corp. v. FTC, 589 F.2d 582, 592 tion granting the Judiciary Committee ‘‘any 2171 (statements of Rep. Peter Rodino and (D.C. Cir. 1978); Tobin, 306 F.2d at 275. and all necessary authority under Article I Rep. Hutchinson); id. at 2172 (Parliamentar- 258. E.g., Watkins, 354 U.S. at 207 of the Constitution,’’ as if to suggest that ian’s Note); see also Dep’t of Justice, Office of (‘‘[C]ommittees are restricted to the mis- the Judiciary Committee could, under that Legal Counsel, Legal Aspects of Impeachment: sions delegated to them . . . .’’); Tobin, 306 grant, initiate an impeachment inquiry. In re An Overview, at 42 n.21 (1974), https:// F.2d at 276; Alissa M. Dolan et al., Cong. Re- Application of Comm. on Judiciary, 2019 WL perma.cc/X4HU-WVWS. search Serv., RL30240, Congressional Oversight 5485221, at *29 (quoting H.R. Res. 430, 116th 272. H.R. Res. 581, 105th Cong. (1998) (Clin- Manual 24 (2014). Cong. (2019)). But House Resolution 430 is ac- ton); H.R. Res. 803, 93d Cong. (1974) (Nixon); 259. McGrain v. Daugherty, 273 U.S. 135, 177 tually much more narrow. After providing Cong. Globe, 40th Cong., 2d Sess. 784–85, 1087 (1927). certain authorizations for filing lawsuits, (1868) (Johnson); Cong. Globe, 39th Cong., 2d 260. Senate Select Comm. on Presidential Cam- the resolution simply gave committees au- Sess. 320–21 (1867) (Johnson); see also III paign Activities v. Nixon, 498 F.2d 725, 732 (D.C. thority to pursue litigation effectively by Hinds’ Precedents of the House of Represent- Cir. 1974). providing that, ‘‘in connection with any judi- atives 2408, at 845 (1907) (Hinds’ Precedents) 261. Nothing in the recent decision in In re cial proceeding brought under the first or sec- (Johnson); id. § 2400, at 823–24 (Johnson). Application of Committee on the Judiciary es- ond resolving clauses, the chair of any stand- 273. H.R. Comm. on the Judiciary, Inves- tablishes that a committee can pursue an in- ing or permanent select committee exer- tigatory Powers of the Comm. on the Judiciary vestigation pursuant to the impeachment cising authority thereunder has any and all with Respect to its Impeachment Inquiry, H.R. power without authorization by a vote from necessary authority under Article I of the Rep. No. 105–795, 105th Cong. 24 (1998). the House. SeellF. Supp. 3dll, 2019 WL Constitution.’’ H.R Res. 430 (emphasis 274. 3 Deschler’s Precedents ch. 14, § 15.2, at 5485221, at *26–28 (D.D.C. Oct. 25, 2019). Any added). Simply by providing authority to 2171 (statement of Rep. Rodino) (emphasis such discussion was dicta. The question be- pursue lawsuits, House Resolution 430 did added); see also, e.g., 120 Cong. Rec. 2356 (1974) fore the court was whether a particular Judi- not authorize any committee to initiate an (statement of Rep. Jordan). ciary Committee inquiry was being con- impeachment investigation. 275. Richard L. Lyons, GOP Picks Jenner as ducted ‘‘preliminarily to’’ an impeachment 262. Clerk, House of Representatives, Rules Counsel, Wash. Post (Jan. 8, 1974), at A1, A6. trial in the Senate, a question that the court of the House of Representatives, 116th Cong. 276. In 1796, the Attorney General advised viewed as depending on the inquiry’s ‘‘pur- (2019) (H.R. Rule). the House that, to proceed with impeach- pose’’ and whether it could lead to such a 263. H.R. Rule X.1(l)(18). ment of a territorial judge, ‘‘a committee of trial—‘‘not the source of authority Congress 264. H.R. Rule X.1(n)(5). the House of Representatives’’ must ‘‘be ap- acts under.’’ Id. at *28 n.37. In any event, the 265. H.R. Rule XI.1(b)(1) (limiting the pointed for [the] purpose’’ of examining evi- court’s analysis was flawed. power to conduct ‘‘investigations and stud- dence. III Hinds’ Precedents § 2486, at 982.

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00056 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.054 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S343 The House accepted and ratified this advice 286. H.R. Res. 660, 116th Cong. (2019). dent and his immediate advisors are abso- in its first impeachment the next year and in 287. See infra Appendix B. lutely immune from testimonial compulsion each of the next twelve impeachments of 288. Impeachment Inquiry Authorization, by a Congressional committee.’’ (quotations judges and subordinate executive officers. III infra Appendix C, at 37. and citations omitted)). Hinds’ Precedents §§ 2297, 2300, 2321, 2323, 289. H.R. Res. 507, 116th Cong. (2019) (ex- 300. 2014 OLC Immunity Opinion, 38 Op. 2342, 2364, 2385, 2444–2445, 2447–2448, 2469, 2504; pressly ‘‘ratif[ying] and affirm[ing] all cur- O.L.C. at *3 (quotations and citation omit- VI Cannon’s Precedents of the House of Rep- rent and future investigations, as well as all ted); see also Assertion of Executive Privilege resentatives §§ 498, 513, 544 (1936) (Cannon’s subpoenas previously issued or to be issued in with Respect to Clemency Decision, 23 Op. Precedents); 3 Deschler’s Precedents ch. 14, the future’’) (emphasis added). O.L.C. at 5 (‘‘[A] senior advisor to the Presi- § 18.1. In some cases before 1870, such as the 290. HJC Report at 134, 137, 157. dent functions as the President’s alter ego impeachment of Judge Pickering, the House 291. See supra Part I.B.1(a); infra Part II; . . . .’’). relied on information presented directly to Letter from Pat A. Cipollone, Counsel to the 301. 2019 OLC Immunity Opinion, 43 Op. the House to impeach an official before con- President, to Nancy Pelosi, Speaker, House O.L.C. at *5 (citations omitted). ducting an inquiry, and then authorized a of Representatives, et al., at 7 (Oct. 8, 2019). 302. Id. at *4 (‘‘Like executive privilege, the committee to draft specific articles of im- 292. Oct. 8, 2019 Letter from Pat. A immunity protects confidentiality within peachment and exercise investigatory pow- Cipollone, supra note 291, at 8. the Executive Branch and the candid advice ers. III Hinds’ Precedents § 2321. Those few 293. See Letter from Pat A. Cipollone, that the Supreme Court has acknowledged is cases adhere to the rule that a vote of the Counsel to the President, to William Pittard, essential to presidential decision-making.’’ full House is necessary to authorize any Counsel for Mick Mulvaney (Nov. 8, 2019); (citing Nixon, 418 U.S. at 705)). committee to investigate for impeachment Letter from Pat A. Cipollone, Counsel to the 303. Nixon, 418 U.S. at 708. purposes. President, to Bill Burck, Counsel for John 304. Subpoena from the House Committee 277. H.R. Comm. on the Judiciary, Impeach- Eisenberg (Nov. 3, 2019); Letter from Pat A. on Oversight and Reform to John Michael ment of Walter L. Nixon, Jr., H.R. Rep. No. 101– Cipollone, Counsel to the President, to Mulvaney, Acting White House Chief of Staff 36, 101st Cong. 12–13 (1989) (Judge Nixon Jr.); Charles J. Cooper, Counsel for Charles (Oct. 4, 2019) (requesting documents con- H.R. Comm. on the Judiciary, Impeachment of Kupperman (Oct. 25, 2019). cerning a May 23 Oval Office meeting, among Judge Alcee L. Hastings, H.R. Rep. No. 100–810, 294. See generally Memorandum for John D. other presidential communications). 100th Cong. 7–8, 29–31, 38–39 (1988) (Judge Has- Ehrlichman, Assistant to the President for 305. H.R. Permanent Select Comm. on In- tings); H.R. Comm. on the Judiciary, Im- Domestic Affairs, from William H. telligence, The Trump-Ukraine Impeachment peachment of Judge Harry E. Claiborne, H.R. Rehnquist, Assistant Attorney General, Of- Inquiry Report, H.R. Rep. No. 116–335, 116th Rep. No. 99–688, 99th Cong. 18–20 (1986) (Judge fice of Legal Counsel, Re: Power of Congres- Cong. 181–82 (2019) (HPSCI Report). Claiborne). These aberrations are still distin- sional Committee to Compel Appearance or Tes- 306. Nixon, 418 U.S. at 705. 307. See, e.g., 2014 OLC Immunity Opinion, 38 guishable because the House adopted resolu- timony of ‘‘White House Staff,’’ at 8 (Feb. 5, Op. O.L.C. at *6 (‘‘[S]ubjecting an immediate tions authorizing subpoenas for depositions 1971) (Rehnquist Memorandum) (‘‘The Presi- presidential adviser to Congress’s subpoena during the impeachment investigations of dent and his immediate advisers—that is, power would threaten the President’s auton- Judges Nixon and Hastings, see H.R. Res. 562, those who customarily meet with the Presi- 100th Cong. (1988); H.R. Res. 320, 100th Cong. omy and his ability to receive sound and dent on a regular or frequent basis—should (1987), and the Judiciary Committee appar- candid advice.’’). be deemed absolutely immune from testi- ently did not issue any subpoenas in Judge 308. See Compl. at 11, Kupperman v. U.S. monial compulsion by a congressional com- Claiborne’s impeachment inquiry. House of Representatives, No. 19–cv–3224 mittee.’’). 278. NLRB v. Noel Canning, 573 U.S. 513, 538 (D.D.C. Oct. 25, 2019), ECF No. 1. (2014); see also Impeachment Inquiry Authoriza- 295. Letter from Steven A. Engel, Assistant 309. Letter from Steven A. Engel, Assistant tion, infra Appendix C, at 27. Attorney General, to Pat A. Cipollone, Coun- Attorney General, to Pat A. Cipollone, Coun- 279. See supra Standards Part B.3. sel to the President (Nov. 7, 2019) (regarding sel to the President, at 3 (Nov. 3, 2019) (re- 280. H.R. Rep. No. 105–830, at 265 (Minority Acting White House Chief of Staff garding Legal Advisor to the National Secu- Views). Mulvaney); Letter from Steven A. Engel, As- rity Council Eisenberg); Letter from Steven 281. See Impeachment Inquiry Authorization, sistant Attorney General, to Pat A. A. Engel, Assistant Attorney General, to Pat infra Appendix C, at 1–3. Although the com- Cipollone, Counsel to the President (Nov. 3, A. Cipollone, Counsel to the President, at 2 mittees also referred to their oversight and 2019) (regarding Legal Advisor to the Na- (Oct. 25, 2019) (regarding Deputy National Se- legislative jurisdiction in issuing these sub- tional Security Council Eisenberg); Letter curity Advisor Kupperman). These letters poenas, the committees cannot ‘‘leverage from Steven A. Engel, Assistant Attorney are attached, infra, at Appendix D. their oversight jurisdiction to require the General, to Pat A. Cipollone, Counsel to the 310. See Chicago & S. Air Lines v. Waterman production of documents and testimony that President (October 25, 2019) (regarding Dep- S.S. Corp., 333 U.S. 103, 109 (1948). the committees avowedly intended to use for uty National Security Advisor Kupperman). 311. 418 U.S. at 710–11; see also Harlow v. an unauthorized impeachment inquiry.’’ Id. These letters are attached, infra, at Appen- Fitzgerald, 457 U.S. 800, 812 (1982) (‘‘For aides at 32–33. These ‘‘assertion[s] of dual authori- dix D. entrusted with discretionary authority in ties’’ were merely ‘‘token invocations of 296. Testimonial Immunity Before Congress of such sensitive areas as national security or ‘oversight and legislative jurisdiction,’ ’’ the Former Counsel to the President, 43 Op. foreign policy, absolute immunity might without ‘‘any apparent legislative purpose.’’ O.L.C. ll, *1 (May 20, 2019) (2019 OLC Immu- well be justified to protect the unhesitating Id. The committees transmitted the sub- nity Opinion); see also Immunity of the Assist- performance of functions vital to the na- poenas ‘‘[p]ursuant to the House[’s] impeach- ant to the President and Director of the Office tional interest.’’); Committee on Judiciary v. ment inquiry,’’ admitted that documents of Political Strategy and Outreach from Con- Miers, 558 F. Supp. 2d 53, 101 (D.D.C. 2008) would ‘‘be collected as part of the House’s gressional Subpoena, 38 Op. O.L.C. ll(July (noting that ‘‘[s]ensitive matters of ‘discre- impeachment inquiry,’’ and confirmed that 15, 2014) (2014 OLC Immunity Opinion); Immu- they would be ‘‘shared among the Commit- tionary authority’ such as ‘national security nity of the Former Counsel to the President from or foreign policy’ may warrant absolute im- tees, as well as with the Committee on the Compelled Congressional Testimony, 31 Op. Judiciary as appropriate’’—all to be used in munity in certain circumstances.’’). O.L.C. 191, 192 (2007); Immunity of the Counsel 312. Subpoena from the House Committee the impeachment inquiry. E.g., Letter from to the President from Compelled Congressional Elijah E. Cummings, Chairman, H.R. Comm. on Oversight and Reform to John Michael Testimony, 20 Op. O.L.C. 308, 308 (1996); Memo- on Oversight & Reform, et al., to John M. Mulvaney, Acting White House Chief of Staff randum for Fred F. Fielding, Counsel to the Mulvaney, Acting White House Chief of (Oct. 4, 2019). President, from Theodore B. Olson, Assistant Staff, at 1 (Oct. 4, 2019). 313. In re Sealed Case, 121 F.3d 729, 737 (D.C. 282. Press Release, Democratic Staff of the Attorney General, Office of Legal Counsel, Cir. 1997) (internal quotation marks and cita- H.R. Comm. on the Judiciary, Fact Sheet: Re: Congressional Testimony by Presidential As- tions omitted). GOP Attacks on IRS Commissioner are Not sistants at 1 (Apr. 14, 1981); Memorandum for 314. Id. 315. See Assertion of Executive Privilege Over Impeachment Proceedings (Sept. 21, 2016) All Heads of Offices, Divisions, Bureaus and (emphasis in original), https://perma.cc/ Boards of the Department of Justice, from Documents Generated in Response to Congres- 6W8E-7KV8. John M. Harmon, Acting Assistant Attorney sional Investigation into Operation Fast and 283. Impeachment Articles Referred on John General, Office of Legal Counsel, Re: Execu- Furious, 36 Op. O.L.C. ll, at *3 (June 19, Koskinen (Part III): Hearing Before the H.R. tive Privilege, at 5 (May 23, 1977); Rehnquist 2012) (‘‘The threat of compelled disclosure of Comm. on the Judiciary, 114th Cong. 30 (2016) Memorandum, supra note 294. confidential Executive Branch deliberative (Koskinen Impeachment Hearing: Part III) 297. See 2014 OLC Immunity Opinion, 38 Op. material can discourage robust and candid (statement of Rep. Johnson) (emphasis O.L.C. at *3. deliberations.’’); Assertion of Executive Privi- added). 298. See Assertion of Executive Privilege with lege Over Communications Regarding EPA’s 284. Id. at 16 (statement of Rep. Nadler); Respect to Clemency Decision, 23 Op. O.L.C. 1, Ozone Air Quality Standards and California’s Jerry Nadler (@RepJerryNadler), Twitter 5 (1999) (emphasis added). Greenhouse Gas Waiver Request, 32 Op. O.L.C. (Sept. 21, 2016, 7:01 AM), https://perma.cc/ 299. Id. at 5–6 (emphasis added); see also Im- ll, *2 (June 19, 2008) (‘‘Documents gen- A4VY-TFGM. munity of the Counsel to the President from erated for the purpose of assisting the Presi- 285. Koskinen Impeachment Hearing: Part III, Compelled Congressional Testimony, 20 Op. dent in making a decision are protected’’ and supra note 283, at 54 (statement of Rep. O.L.C. at 308 (‘‘It is the longstanding posi- these protections also ‘‘encompass[] Execu- Jeffries). tion of the executive branch that the Presi- tive Branch deliberative communications

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00057 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.055 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S344 CONGRESSIONAL RECORD — SENATE January 21, 2020 that do not implicate presidential decision- sent a letter to the House stating, ‘‘[t]o 1332 (D.D.C. Nov. 21, 2012), ECF No. 17. Unless making’’). admit, then, a right in the House of Rep- and until the justiciability question is re- 316. See, e.g., Letter from Eliot L. Engel, resentatives to demand, and to have, as a solved by the Supreme Court, the House can- Chairman, H.R. Comm. on Foreign Rela- matter of course, all the papers respecting a not simultaneously (i) insist that the courts tions, et al., to John Michael Mulvaney, Act- negotiation with a foreign Power, would be may decide whether any particular refusal to ing White House Chief of Staff, at 4 (Nov. 5, to establish a dangerous precedent’’ (citation comply with a congressional committee’s de- 2019) (explaining that House rules ‘‘do not omitted)); Jonathan L. Entin, Separation of mand for information was legally proper and permit agency counsel to participate in Powers, the Political Branches, and the Limits (ii) claim that the House can treat resistance depositions’’). of Judicial Review, 51 Ohio St. L.J. 175, 186–209 to any demand for information from Con- 317. Exclusion of Agency Counsel from Con- (1990). gress as a ‘‘high crime and misdemeanor’’ gressional Depositions in the Impeachment Con- 330. Letter from James Madison to Mr. ll justifying impeachment without securing any text, 43 Op. O.L.C. ll, *4 (Nov. 1, 2019). (1834), in 4 Letters and other Writings of judicial determination that the Executive 318. Id. at *2; see generally Attempted Exclu- James Madison 349 (1884) (emphasis added). Branch’s action was improper. sion of Agency Counsel from Congressional 331. Myers v. United States, 272 U.S. 52, 85 337. See Am. Tel. & Tel. Co., 567 F.2d at 127 Depositions of Agency Employees, 43 Op. O.L.C. (1926) (‘‘The purpose was not to avoid fric- (‘‘[E]ach branch should take cognizance of an ll(May 23, 2019) (same, in the oversight tion, but, by means of the inevitable friction implicit constitutional mandate to seek op- context). incident to the distribution of the govern- timal accommodation through a realistic 319. Exclusion of Agency Counsel from Con- mental powers among three departments, to evaluation of the needs of the conflicting gressional Depositions in the Impeachment Con- save the people from autocracy.’’); The Fed- branches in the particular fact situation.’’). text, 43 Op. O.L.C. at *2. eralist No. 51, at 320–21 (James Madison) 338. See Transcript: Nancy Pelosi’s Public and 320. Attempted Exclusion of Agency Counsel (Clinton Rossiter ed., 1961) (arguing that Private Remarks on Trump Impeachment, NBC from Congressional Depositions of Agency Em- ‘‘liberty’’ requires that the government’s News (Sept. 24, 2019), https://www. ployees, 43 Op. O.L.C. at *10 (‘‘[I]n many ‘‘constituent parts . . . be the means of keep- nbcnews.com/politics/trump-impeachment- cases, agency employees will have only lim- ing each other in their proper places’’). inquiry/transcript-nancy-pelosi-s-speech- ited experience with executive privilege and 332. United States v. Am. Tel. & Tel. Co., 567 trump-impeachment-n1058351 (‘‘[R]ight now, may not have the necessary legal expertise F.2d 121, 127 (D.C. Cir. 1977) (when Congress we have to strike while the iron is hot.... to determine whether a question implicates asks for information from the Executive And, we want this to be done expeditiously. a protected privilege.’’). Branch, that request triggers the ‘‘implicit Expeditiously.’’); Ben Kamisar, Schiff Says 321. See INS v. Chadha, 462 U.S. 919, 955 n.21 constitutional mandate to seek optimal ac- House Will Move Forward with Impeachment (1983) (Congress’s power to ‘‘determin[e] commodation . . . of the needs of the con- Inquiry After ‘Overwhelming’ Evidence from specified internal matters’’ is limited be- flicting branches.’’). Hearings, NBC News (Nov. 24, 2019), https:// cause the Constitution ‘‘only empowers Con- 333. Id. at 130. www.nbcnews.com/politics/meet-the-press/ gress to bind itself’’); United States v. Ballin, 334. Congressional Requests for Confidential schiff-says-house-will-move-forward- im- 144 U.S. 1, 5 (1892) (Congress ‘‘may not by its Executive Branch Information, 13 Op. O.L.C. peachment-inquiry-after-overwhelming- rules ignore constitutional restraints’’); HJC 153, 162 (1989) (‘‘If after assertion of executive n1090221 (‘‘[T]here are still other witnesses, Report at 198 (Dissenting Views) (‘‘The Con- privilege the committee remains unsatisfied other documents that we’d like to obtain. stitution’s grant of the impeachment power with the agency’s response, it may vote to But we are not willing to go the months and to the House of Representatives does not hold the agency head in contempt of Con- months and months of rope-a-dope in the temporarily suspend the rights and powers of gress.’’). courts, which the administration would love 335. As the Minority Views on the House the other branches established by the Con- to do.’’). stitution.’’). Judiciary Committee’s Report in the Nixon 339. The Federalist No. 49, at 314 (James 322. Authority of the Department of Health proceedings pointed out, it is important to Madison) (Clinton Rossiter ed., 1961). and Human Services to Pay for Authority of the have a body other than the committee that 340. Am. Tel. & Tel. Co., 567 F.2d at 127. Department of Health and Human Services to issued a subpoena evaluate the subpoena be- 341. HJC Report at 154. Pay for Private Counsel to Represent an Em- fore there is a move to contempt. ‘‘[I]f the 342. See, e.g., Senate Select Comm. on Presi- ployee Before Congressional Committees, 41 Op. Committee were to act as the final arbiter of dential Campaign Activities v. Nixon, 498 F.2d O.L.C. ll, *5 n.6 (Jan. 18, 2017). the legality of its own demand, the result 725, 733 (D.C. Cir. 1974) (holding that a con- 323. Letter from Rep. Elijah E. Cummings, would seldom be in doubt.... It is for the gressional committee’s need for subpoenaed Chairman, H.R. Comm. on Oversight & Re- reason just stated that, when a witness be- material ‘‘is too attenuated and too tangen- form, to Carl Kline, at 2 (Apr. 27, 2019) (‘‘Both fore a Congressional Committee refuses to tial to its functions to permit a judicial your personal counsel and attorneys from give testimony or produce documents, the judgment that the President is required to the White House Counsel’s office will be per- Committee cannot itself hold the witness in comply with the Committee’s subpoena’’); mitted to attend.’’); see also Kyle Cheney, contempt.... Rather, the established pro- Gojack v. United States, 384 U.S. 702, 716 (1966) Cummings Drops Contempt Threat Against cedure is for the witness to be given an op- (reversing Petitioner’s contempt of Congress Former W.H. Security Chief, Politico (Apr. 27, portunity to appear before the full House or conviction because ‘‘the subcommittee was 2019), https://perma.cc/F273-EJZW. Senate, as the case may be, and give reasons, without authority which can be vindicated 324. Bordenkircher v. Hayes, 434 U.S. 357, 363 if he can, why he should not be held in con- by criminal sanctions’’); United States v. (1978) (citations omitted); see also, e.g., United tempt.’’ H.R. Rep. No. 93–1305, at 484 (1974) Rumely, 345 U.S. 41, 47–48 (1953) (holding that States v. Goodwin, 357 U.S. 368, 372 (1982) (Minority Views); see also id. at 516 (addi- a congressional committee subpoena sought (‘‘For while an individual certainly may be tional views of Rep. William Cohen). materials outside the scope of the author- penalized for violating the law, he just as 336. As examples of such lawsuits, see izing resolution); United States v. McSurely, certainly may not be punished for exercising Compl., Comm. on Oversight and Gov’t Reform 473 F.2d 1178, 1194 (D.C. Cir. 1972) (reversing a a protected statutory or constitutional v. Holder, No. 1:12–cv–1332 (D.D.C. August 13, congressional contempt conviction and ap- right.’’). 2012), ECF No. 1 (suing to enforce subpoenas plying Fourth Amendment protections to a 325. Harvey Berkman, Top Profs: Not in the Fast and Furious investigation during congressional investigation). Enough to Impeach, The National Law J. the Obama Administration); Compl., Comm. 343. Turley Written Statement, supra note (Oct. 5, 1998) (quoting Professor Tribe), re- on the Judiciary v. McGahn, No. 19–cv–2379 252, at 39. printed in 144 Cong. Rec. H10031 (1998). (D.D.C. Aug. 7, 2019), ECF No. 1. Addition- 344. Background and History of Impeachment: 326. Impeachment Inquiry: William Jefferson ally, for Senate subpoenas, Congress has af- Hearing Before the Subcomm. on the Const. of Clinton, President of the United States, Consid- firmatively passed legislation creating sub- the H.R. Comm. on Judiciary, 105th Cong. 236 eration of Articles of Impeachment, 105th Cong. ject matter jurisdiction in federal court to (1998) (Clinton Judiciary Comm. Hearing on 398 (1998) (statement of Rep. Jerrold Nadler). hear such cases. See 28 U.S.C. §1365 (2018). The Background of Impeachment) (written state- 327. See, e.g., Letter from Rep. Elijah E. Trump Administration, like the Obama Ad- ment of Professor Susan Low Bloch, George- Cummings, Chairman, H.R. Comm. on Over- ministration, has taken the position that a town University Law Center); see also Alan sight & Reform, et al., to John Michael suit by a congressional committee attempt- Dershowitz, Supreme Court Ruling Pulls Rug Mulvaney, Acting White House Chief of ing to enforce a subpoena against an Execu- out from under Article of Impeachment, The Staff, at 1 (Oct. 4, 2019). tive Branch official is not a justiciable con- Hill (Dec. 16, 2019), https://perma.cc/H5BA- 328. Transcript of Pelosi Weekly Press Con- troversy in an Article III court. See Comm. on TKVX (stating that ‘‘the House Judiciary ference, supra note 251 (statement of Rep. Oversight & Gov’t Reform v. Holder, 979 F. Committee has arrogated to itself the power Adam Schiff) (emphasis added). Supp. 2d 1, 9–10 (D.D.C. 2013) (‘‘The defendant to decide the validity of subpoenas, and the 329. See History of Refusals by Executive . . . maintains that Article III of the Con- power to determine whether claims of execu- Branch Officials to Provide Information De- stitution actually prohibits the Court from tive privilege must be recognized’’ and argu- manded by Congress, Part I—Presidential Invo- exercising jurisdiction over what he charac- ing that those authorities ‘‘properly belong cations of Executive Privilege Vis-aˆ -Vis Con- terizes as ‘an inherently political dis- with the judicial branch of our government, gress, 6 Op. O.L.C. 751, 753 (1982) (explaining pute.’ ’’). The House of Representatives, how- not the legislative branch’’). that in response to a request for documents ever, has taken the opposite view. See Pl.’s 345. H.R. Rep. No. 105–830, at 85. relating to negotiation of the Jay Treaty Opp’n to Def.’s Mot. to Dismiss, Comm. on 346. Id. at 84 (quoting Rep. Bob Goodlatte). with Great Britain, President Washington Oversight & Gov’t Reform v. Holder, No. 12–cv– 347. Id.

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00058 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.055 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S345 348. Clinton Judiciary Comm. Hearing on Presidents have acknowledged their obliga- think that there is any question that the Background of Impeachment, supra note 344, at tion to comply with an impeachment inves- President abused executive privilege here, 54 (written statement of Professor Michael J. tigation.’’ Id. at 32–33. OLC has clarified because it can only be used to protect offi- Gerhardt, The College of William and Mary that, when read in context, President Polk’s cial functions.’’). School of Law). statement actually ‘‘acknowledg[es] the con- 370. Id. at 84 (quoting Rep. Bob Goodlatte). 349. See Assertion of Executive Privilege Over tinued availability of executive privilege’’ 371. H.R. Rep. No. 93–1305, at 1–4. Documents Generated in Response to Congres- because President Polk explained that ‘‘even 372 Id. at 203–04 (quoting President Nixon sional Investigation into Operation ‘Fast and in the impeachment context, the Executive as saying ‘‘I want you all to stonewall it, let Furious, 36 Op. O.L.C. at *1, *8. branch would adopt all wise precautions to them plead the Fifth Amendment, cover-up 350. See, e.g., Harper Neidig, Judge Rules prevent the exposure of all such matters the or anything else, if it’ll save it—save the Against Obama on ‘Fast and Furious’, The Hill publication of which might injuriously affect plan. That’s the whole point.’’). (Jan. 19, 2016), https://perma.cc/FSA2–YQFT the public interest, except so far as this 373 Id. at 188 (reflecting a vote of 21–17). (‘‘A federal judge on Tuesday ruled President might be necessary to accomplish the great 374. 3 The Debates in the Several State Con- Obama cannot use executive privilege to ends of public justice.’ ’’ Impeachment Inquiry ventions on the Adoption of the Federal Con- keep records on the ‘Fast and Furious’ gun- Authorization, infra Appendix C, at 11 n.13 stitution, at 401 (Jonathan Elliot 2nd ed. 1987). tracking program from Congress . . . (quoting Memorandum for Elliot Richardson, 375. H.R. Rep. No. 105–830, at 85. House Republicans launched the suit after Attorney General, from Robert G. Dixon, Jr., 376 Id. at 84 (quoting Rep. Bob Goodlatte). 377. Id. voting to hold then-Attorney General Eric Assistant Attorney General, Office of Legal 378. Id. at 92 (quoting Rep. George Gekas). Holder in contempt for refusing to turn over Counsel, Re: Presidential Immunity from Coer- 379. Clinton Judiciary Comm. Hearing on the records.’’). cive Congressional Demands for Information at Background of Impeachment, supra note 344, at 351. Turley Written Statement, supra note 22–23 (July 24, 1973)). 54 (written statement of Professor Michael J. 252, at 42. 359. The Federalist No. 51, supra note 331, Gerhardt, The College of William & Mary 352. See Trial Mem. of the U.S. House of at 322. Representatives at 33–34; HJC Report at 136– 360. Exclusion of Agency Counsel from Con- School of Law) (emphasis added). 380. E.g., Oct. 4, 2019 Letter from Elijah E. 37. gressional Depositions in the Impeachment Con- Cummings, supra note 281; see infra Appendix 353. Oct. 8, 2019 Letter from Pat A. text, 43 Op. OLC at *2 (discussing how the B (listing subpoenas). The HPSCI Majority Cipollone, supra note 291, at 8. ‘‘same principles apply to a congressional Report also relies on several ‘‘[d]ocument 354. History of Refusals, 6 O.L.C. Op. at 771 committee’s effort to compel the testimony [p]roduction[s]’’ from AT&T and Verizon, re- (‘‘President Truman issued a directive proof an executive branch official in an im- portedly in response to subpoenas issued by viding for the confidentiality of all loyalty peachment inquiry’’ as in other contexts). files and requiring that all requests for such 361. Black & Bobbitt, supra note 191, at 20; Chairman Schiff beginning in September be- files from sources outside the Executive see also Turley Written Statement, note 252, fore House Resolution 660 was passed. See Branch be referred to the Office of the Presi- at 40 (‘‘Congress cannot substitute its judg- Editorial Bd., Schiff’s Surveillance State, Wall dent, for such response as the President may ment as to what a President can withhold.’’). St. J. (Dec. 4, 2019), https://perma.cc/2ZQP- determine . . . At a press conference held 362. HJC Report at 129–31. JW5V; HPSCI Report at 31 n.49, 80 n.529. on April 22, 1948, President Truman indicated 363. Turley Written Statement, supra note 381. U.S. Const. art. I, § 2, cl. 5. that he would not comply with the request 252, at 41. 382. Memorandum from Steven A. Engel, to turn the papers over to the Committee.’’ 364. HJC Report at 155 (emphasis in origi- Assistant Attorney General, Office of Legal (citations omitted)); id. at 769 (noting Presi- nal). Counsel, to Pat A. Cipollone, Counsel to the dent Coolidge refused to provide the Senate 365. Appellee Br. at 13, In re: Application of President, Re: House Committees’ Authority to ‘‘a list of all companies in which the Sec- the Comm. on the Judiciary, No. 19–5288 (D.C. Investigate for Impeachment, at 1 (Jan. 19, retary of the Treasury was interested’ ’’ and Cir. Dec. 16, 2019) (‘‘If the House approves Ar- 2020) (emphasis in original) (Impeachment In- instead sent a letter ‘‘calling the Senate’s in- ticles of Impeachment, relevant grand-jury quiry Authorization), infra Appendix C. vestigation an ‘unwarranted intrusion,’ born material that the Committee obtains in this 383. Impeachment is not just a political of a desire other than to secure information litigation could be used during the subse- process unconstrained by law. ‘‘The subjects for legitimate legislative purposes’’ (quoting quent Senate proceedings. And the Com- of [an impeachment trial] are those offenses 65 Cong. Rec. 6087 (1924))); id. at 757 (noting mittee continues its impeachment investiga- which proceed from the misconduct of public President Jackson refused to provide to the tion into Presidential misconduct .... men, or, in other words, from the abuse or Senate a paper purportedly read by the Material that the Committee obtains in this violation of some public trust’’—that is, President to his Cabinet and instead asserted litigation could be used in that investigation ‘‘POLITICAL, as they relate chiefly to inju- ‘‘the Legislature had no constitutional au- as well.’’). ries done immediately to the society itself.’’ thority to ‘require of me an account of any 366. Pl.’s Reply in Support of its Mot. for The Federalist No. 65, at 396 (Alexander communication, either verbally or in writ- Expedited Partial Summary Judgment at 3, Hamilton) (Clinton Rossiter ed., 1961). But ing, made to the heads of Departments act- Comm. on the Judiciary v. McGahn, No. 19–cv– ‘‘Hamilton didn’t say the process of impeaching as a Cabinet council . . . [nor] might I 2379 (D.D.C. Oct. 16, 2019), ECF No. 38 (‘‘The ment is entirely political. He said the offense be required to detail to the Senate the free President has stated that the Executive has to be political.’’ Alan M. Dershowitz, and private conversations I have held with Branch will not articipate in’ the House’s on- Hamilton Wouldn’t Impeach Trump, Wall St. J. those officers on any subject relating to going impeachment inquiry, and has de- (Oct. 9, 2019), https://perma.cc/97PH-QPGT their duties and my own.’ ’’). clared that McGahn is absolutely immune (emphasis in original). ‘‘Hamilton’s descrip- 355. As explained above, many of the sub- from Congressional process. The parties are tion in Federalist 65 should not be taken to poenas were not authorized as part of any currently at an impasse that can only be re- mean that impeachments have a conven- impeachment inquiry because they were solved by the courts.’’ (emphasis in origi- tional political nature, unmoored from tradi- issued when the House had not voted to au- nal)); see also Compl. § 1, Comm. on the Judici- tional criminal process.’’ J. Richard thorize any such inquiry. See supra Part ary v. McGahn, No. 19–cv–2379 (D.D.C. Aug. 7, Broughton, Conviction, Nullification, and I.B.1(a). 2019), ECF No. 1 (arguing that witness testi- the Limits of Impeachment As Politics, 68 356. Nixon, 418 U.S. at 707. mony is needed because ‘‘[t]he Judiciary Case W. Res. L. Rev. 275, 288 (2017). Federalist 357. See, e.g., Trial Mem. of the U.S. House Committee is now determining whether to No. 65 goes to ‘‘pains to show that the Senate of Representatives at 33–34; HJC Report at recommend articles of impeachment against can act in ‘their judicial character as a 136–37. the President’’). ‘court for the trial of impeachments,’’ and 358. House Democrats’ reliance on Kilbourn 367. See HJC Report at 146–48. ‘‘[t]he entire essay is an attempt to show v. Thompson is misplaced. Kilbourn merely 368. See, e.g., Clinton v. Jones, 520 U.S. 681, that the Senate can overcome its political na- states that, when conducting an impeach- 692 (1997) (holding that a sitting president ture as an elected body . . . and act as a ment inquiry, the House or Senate may does not have immunity during his term proper court for the trial of impeach- ‘‘compel the attendance of witnesses, and from civil litigation about events occurring ments.’ ’’ Charles L. Black, Jr. & Philip their answer to proper questions, in the same prior to entering office); In re Grand Jury Bobbitt, Impeachment: A Handbook 102 (2018) manner and by the use of the same means Proceedings, 5 F. Supp. 2d 21 (D.D.C. 1998) (re- (emphasis in original). Hamilton emphasized that courts of justice can in like cases.’ ’’ jecting the privilege for information sought that impeachment and removal of ‘‘the ac- Trial Mem. of the U.S. House of Representa- from a Deputy White House Counsel per- cused’’ must be based on partially legal con- tives at 32 (quoting Kilbourn, 103 U.S. 168, 190 taining to potential presidential criminal siderations involving ‘‘real demonstrations (1880)). But constitutionally based privileges misconduct), aff’d in part, rev’d in part sub of innocence or guilt’’ rather than purely po- apply in ‘‘courts of justice,’’ so Kilbourn does nom. In re Lindsey, 158 F.3d 1263 (D.C. Cir. litical factors like ‘‘the comparative not foreclose the assertion of privileges and 1998). strength of parties.’’ Id. at 102–03 (quoting immunities in impeachment proceedings. Re- 369. H.R. Rep. No. 105–830, at 92 (‘‘[I]ndeed, The Federalist No. 65). Thus, ‘‘one should not gardless, the statement quoted by House the President repeatedly argued that he diminish the significance of impeachment’s Democrats is dictum and, therefore, not should not be impeached precisely because legal aspects, particularly as they relate to binding. Additionally, House Democrats these matters are purely private in na- the formalities of the criminal justice proc- point to an 1846 statement by President Polk ture.’’); id. (quoting Rep. Bill McCollum) ess. It is a hybrid of the political and the to support the proposition that ‘‘[p]revious (‘‘With regard to executive privilege, I don’t legal, a political process moderated by legal

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00059 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.056 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S346 CONGRESSIONAL RECORD — SENATE January 21, 2020 formalities . . . .’’ Broughton, supra note Corp., 299 U.S. 304, 319 (1936) (‘‘The President War, on the Articles of Impeachment Exhibited 383, at 289. is the sole organ of the nation in its external by the House of Representatives, 44th Cong. 98 384. U.S. Const. amend. V. relations, and its sole representative with (1876) (statement of Sen. Timothy Howe); 385. See, e.g., Walters v. Nat’l Ass’n of Radi- foreign nations.’’) (quoting 10 Annals of Scott S. Barker, An Overview of Presidential ation Survivors, 473 U.S. 305, 320 (1985) (‘‘[T]he Cong. 613 (1800) (statement of Rep. John Mar- Impeachment, 47 Colo. Lawyer 30, 32 (Sept. processes required by the Clause with respect shall)); Ex parte Hennen, 38 U.S. (13 Pet.) 225, 2018). to the termination of a protected interest 235 (1839). 433. 6 Reg. Deb. 737 (1830) (statement of will vary depending upon the importance at- 409. Crosby v. Nat’l Foreign Trade Council, Rep. James Buchanan). tached to the interest and the particular cir- 530 U.S. 363, 381 (2000). 434. See III Hinds’ Precedents § 2319, at 681 cumstances under which the deprivation 410. U.S. Const. art. I, § 2, cl. 5. (Judge Pickering); id. 2343, at 716 (Justice may occur.’’); Mathews v. Eldridge, 424 U.S. 411. U.S. Const. art. I, § 5, cl. 2. Chase). 319, 334 (1976) (‘‘Due process is flexible and 412. See, e.g., INS v. Chadha, 462 U.S. 919, 435. See 32 Annals of Cong. 1715, 1715–16 calls for such procedural protections as the 940–41 (1983); Buckley v. Valeo, 424 U.S. 1, 132 (1818); see, e.g., III Hinds’ Precedents § 2491, at particular situation demands.’’) (quoting (1976), superseded on other grounds by statute 988 (Judge Thurston, 1825); id. § 1736, at 97–98 Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). as stated in McConnell v. FEC, 540 U.S. 93 (Vice President Calhoun, 1826); id. §§ 2365–2366 386. See, e.g., Watkins v. United States, 354 (2003). (Judge Peck, 1830–1831); id. § 2491, at 989 U.S. 178, 188 (1957); Quinn v. United States, 349 413. United States v. Ballin, 144 U.S. 1, 5 (Judge Thurston, 1837); id. § 2495, at 994 & n.4 U.S. 155, 161 (1955). (1892); see also Barry v. United States ex rel. (Judge Watrous, 1852); Cong. Globe, 35th 387. Quinn, 349 U.S. at 161. Cunningham, 279 U.S. 597, 614 (1929); Morgan Cong., 1st Sess. 2167 (1858) (statement of Rep. 388. U.S. Const. art. II, § 4. v. United States, 801 F.2d 445, 451 (D.C. Cir. Horace Clark) (Judge Watrous, 1858); III 389. U.S. Const. art. II, § 1, cl. 1. 1986) (Scalia, J.). Hinds’ Precedents § 2496, at 999 (Judge 390. U.S. Const. art. I, § 3, cl. 7. 414. Senate Select Comm. on Presidential Cam- Watrous, 1858); id. § 2504, at 1008 (Judge 391. See U.S. Const. art. II, § 1, cl. 5. paign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Delahay, 1873). 392. See generally Board of Regents of State Cir. 1974). 436. 6 Reg. Deb. 738 (1830) (statement of Colleges v. Roth, 408 U.S. 564, 571–72 (1972) 415. U.S. Const. art I, § 5, cl. 2. Rep. Spencer Pettis). (‘‘The Court has also made clear that the 416. See Attempted Exclusion of Agency Coun- 437. III Hinds’ Precedents § 2366, at 776. property interests protected by procedural sel from Congressional Depositions of Agency 438. 6 Reg. Deb. 737 (1830) (statement of due process extend well beyond actual own- Employees, 43 Op. O.L.C. ___, *2 (2019). Rep. James Buchanan). ership of real estate, chattels, or money.’’); 417. See supra Part I.B.2(b). 439. Id. at 737–38 (statement of Rep. Charles Bolling v. Sharpe, 347 U.S. 497, 499 (1954) (‘‘Al- 418. 506 U.S. 224 (1993). Ingersoll). though the Court has not assumed to define 419. U.S. Const. art. I, § 3, cl. 6; see Nixon, 440. Id. at 738 (emphasis added). liberty’ with any great precision, that term 506 U.S. at 226. 441. Id. (statement of Rep. Spencer Pettis). is not confined to mere freedom from bodily 420. Nixon, 506 U.S. at 228–29. 442. See III Hinds’ Precedents § 2365, at 774. restraint.’’). 421. Id. at 237 (emphasis added). 443. Cong. Globe, 42d Cong., 3d Sess. 2122 393. Gilbert v. Homar, 520 U.S. 924, 928–29 422. In concurrence, Justice Souter ex- (1873) (emphasis added); III Hinds’ Precedents (1997). plained that some approaches by the Senate § 2506, at 1011 (noting, in Judge Durrell’s im- 394. U.S. Const. art. II, § 4. might be so extreme that they would merit peachment in 1873, that ‘‘[i]t has been the 395. Cf. U.S. Term Limits, Inc. v. Thornton, judicial review under the Impeachment Trial practice of the Committee on the Judiciary 514 U.S. 779, 789 (1995). Clause. As he explained: ‘‘If the Senate were to hear the accused in matters of impeach- 396. See, e.g., Roth, 408 U.S. at 573; see also, to act in a manner seriously threatening the ment whenever thereto requested, by wit- e.g., Doe v. Dep’t of Justice, 753 F.2d 1092, 1106– integrity of its results, convicting, say, upon nesses or by counsel, or by both’’). 07 (D.C. Cir. 1985); McGinnis v. D.C., 65 F. a coin toss, or upon a summary determina- 444. E.g., H.R. Rep. No. 111–427, 111th Cong. Supp. 3d 203, 213 (D.D.C. 2014). tion that an officer of the United States was 11–12 (2010) (Judge Porteous); 155 Cong. Rec. 397. See, e.g., Message of Protest from An- simply ‘a bad guy,’ . . . judicial inter- H7055, H7056 (2009) (Judge Kent) (statement drew Jackson, President, to the U.S. Senate ference might well be appropriate.’’ Id. at of Rep. Adam Schiff); H.R. Rep. No. 101–36, (Apr. 15, 1834) (noting that the Framers were 253–54 (Souter, J., concurring in judgment) 101st Cong. 15 (1989) (Judge Nixon); Impeach- ‘‘undoubtedly aware’’ that impeachment, (quoting Nixon, 506 U.S. at 239 (White, J., ment Inquiry: Hearings Before the Subcomm. on ‘‘whatever might be its result, would in most concurring in judgment)). Criminal Justice of H.R. Comm. on the Jud., cases be accompanied by so much of dishonor 423. Id. at 237–38. Nixon did not address 100th Cong. 10–12; H.R. Rep. No. 100–810, 100th and reproach, solicitude and suffering, as to whether the Due Process Clause constrained Cong. 11–12 (1988) (Judge Hastings); Conduct make the power of preferring it one of the the conduct of an impeachment trial in the of Harry E. Claiborne, U.S. Dist. Judge, D. Nev.: highest solemnity and importance.’’); 2 Jo- Senate because no due process claim was Hearing Before the Subcomm. on Courts, Civil seph Story, Commentaries on the Constitution raised by the parties. Liberties, & Admin. of Justice of H.R. Comm. on 686 (1833) (observing the ‘‘notoriety of the 424. Letter from James Madison to Mr. ___ the Jud., 99th Cong. 2–3, 6–7, 48–78; H.R. Rep. [impeachment] proceedings’’ and ‘‘the deep (1834), in 4 Letters and Other Writings of No. 99–688, 99th Cong. 4–5 (1986) (Judge Clai- extent to which they affect the reputations James Madison 349, 349 (Philadelphia, J.B. borne); Justice William O. Douglas: First Report of the accused,’’ even apart from the ‘‘igno- Lippincott & Co. 1865); see also William by the Special Subcomm. on H.R. Res. 920 of miny of a conviction’’). Baude, Constitutional Liquidation, 71 Stan. L. H.R. Comm. on the Judiciary, 91st Cong. 12 398. The Federalist No. 65, supra note 383, at Rev. 1, 21, 35 (2019). (Comm. Print 1970); Conduct of Albert W. 397 (Alexander Hamilton). 425. Charles L. Black & Philip Bobbitt, Im- Johnson & Albert L. Watson, U.S. Dist. Judges, 399. Ohio Bell Tel. Co. v. Pub. Serv. Comm’n, peachment: A Handbook, New Edition 22–23 M.D. Pa.: Hearing Before the Subcomm. of H.R. 301 U.S. 292, 302 (1937). (2018). Comm. on the Judiciary, 79th Cong. 3 (1946); 400. See Marshall v. Jerrico, Inc., 446 U.S. 426. Zivotofsky ex rel. Zivotofsky v. Clinton, Conduct of Halsted L. Ritter, U.S. Dist. Judge, 238, 242 (1980) (one of the ‘‘central concerns of 566 U.S. 189, 219 (2012) (Zivotofsky I) (Breyer, S.D. Fla.: Hearing Before the Subcomm. of H.R. procedural due process’’ is ‘‘the prevention of J., dissenting); see also Coleman v. Miller, 307 Comm. on the Judiciary, 73d Cong. 2–3, 12, 39, unjustified or mistaken deprivations’’); U.S. 433, 454 (1939). 86, 102, 148, 233 (1933); Hearing Before the H.R. Carey v. Piphus, 435 U.S. 247, 259–60 (1978) 427. Zivotofsky ex rel. Zivotofsky v. Kerry, 135 Special Comm. Appointed to Inquire into the Of- (similar). S. Ct. 2076, 2091 (2015) (Zivotofsky II) (internal ficial Conduct of Judge Harold Louderback, 72d 401. See Hastings v. United States, 802 F. quotation marks omitted); see also McCulloch Cong. 10–11, 33–34, 92, 109, 131–33, 329–30 (1932); Supp. 490, 504 (D.D.C. 1992), vacated and re- v. Maryland, 17 U.S. 316, 401 (1819). Conduct of Hon. Wright Patman Against the manded on other grounds by Hastings v. United 428. Noel Canning, 573 U.S. at 525 (quoting Sec’y of the Treasury: Hearings on H.R. Res. 92 States, 988 F.2d 1280 (D.C. Cir. 1993) (per cu- Letter to Spencer Roane (Sept. 2, 1819), in 8 Before the H.R. Comm. on the Judiciary, 72d riam). Writings of James Madison 450 (G. Hunt ed. Cong. 6, 13–14, 53, 62–69, 152–177, 197 (1932) 402. Id.; U.S. Const. art. I, § 3, cl. 6. 1908)). (Sec’y of Treasury Andrew W. Mellon); Con- 403. Dep’t of Justice, Office of Legal Coun- 429. Youngstown Sheet & Tube Co. v. Sawyer, duct of Grover M. Moscowitz: Hearing Before sel, Legal Aspects of Impeachment: An Over- 343 U.S. 579, 635 (1952) (Jackson, J., concur- H.R. Special Comm., 70th Cong. 1–2, 4, 15, 18 view, at 45 (1974), https://perma.cc/X4HU- ring). (1929); Conduct of Harry B. Anderson: Hearing WVWS. 430. Curtiss-Wright Export Corp., 299 U.S. at Before H.R. Comm. on Judiciary, 71st Cong. 2, 404. The Federalist No. 66, at 402 (Alex- 329. 5–7, 48–49 (1931); Charges Against Hon. Frank ander Hamilton) (Clinton Rossiter ed., 1961). 431. Bahlul v. United States, 840 F.3d 757, 765 Cooper: Hearing on H.R. Res. 398 & 415 Before 405. John O. McGinnis, Impeachment: The (D.C. Cir. 2016) (Kavanaugh, J., concurring). H.R. Comm. on the Judiciary, 69th Cong. 1, 12 Structural derstanding, 67 Geo. Wash. L. Rev. 432. 2 Records of the Federal Convention of (1927); Charges of Impeachment Against Fred- 650, 663 (1999). 1787, at 550 (M. Farrand ed. 1966); see, e.g., erick A. Fenning: Hearing on H.R. Res. 228 Be- 406. See supra Standards Part B.2. Richard M. Pious, Impeaching the President: fore H.R. Comm. on the Judiciary, 69th Cong. 407. Akhil Reed Amar, On Impeaching The Intersection of Constitutional and Popular 10, 153, 366, 520–21, 523, 566–70, 1092–93 (1926); Presidents, 28 Hofstra L. Rev. 291, 304 (1999). Law, 43 St. Louis L.J. 859, 872 (1999); see also, Conduct of George W. English: Hearing Before 408. United States v. Louisiana, 363 U.S. 1, 35 e.g., Proceedings of the Senate Sitting for the the H. Special Comm., 69th Cong. 5–7, 48–53, 81– (1960); see also United States v. Curtiss-Wright Trial of William W. Belknap, Late Secretary of 84, 95–96, 106–08, 126–27, 149–55, 212–216, 239–40,

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00060 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.056 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S347 243–45 (1925); Hearing Before H.R. Comm. on the Sess., 2122–23 (1873) (statement of Mr. Butler 465. Goldberg v. Kelly, 397 U.S. 254, 269 (1970). Judiciary, 68th Cong. 1, 9–10, 26, 36–37 (1925) during impeachment investigation of Judge 466. See supra Part II.B.2. (Judge Baker); VI Cannon’s Precedents § 537, Sherman). 467. See generally supra notes 443–454 and ac- at 771 (Att’y Gen. Daugherty); Conduct of 452. Authorization of an Inquiry into Whether companying text. Judge Kenesaw Mountain Landis: Hearing Be- Grounds Exist for the Impeachment of William 468. See, e.g., Background and History of Im- fore H.R. Comm. on Judiciary, 66th Cong. 7 Jefferson Clinton, President of the United peachment: Hearing Before the Subcomm. on the (1921); H.R. Rep. No. 66–544, 64th Cong. (1916), States: Meeting of the H.R. Comm. on the Judi- Constitution of the H.R. Comm. on the Judici- in 53 Cong. Rec. 6137 (1916) (U.S. Dist. Att’y ciary; Presentation by Inquiry Staff Consider- ary, 105th Cong. 17 (1998) (statement of Rep. Marshall); Judge Alston G. Dayton: Hearings ation of Inquiry Resolution; Adoption of In- Jerrold Nadler) (in the context of a House Before H.R. Comm. on Judiciary & Special quiry Procedures, 105th Cong. 220 (Comm. impeachment investigation, ‘‘due process Subcomm. Thereof, 63d Cong. 210 (1915); Daniel Print 1998) (Clinton Impeachment Inquiry Pro- mean[s] . . . the right to be informed of the Thew Wright: Hearings Before Subcomm. of cedures); see also H.R. Rep. No. 105–795, at 25– law, of the charges against you, the right to H.R. Comm. on the Judiciary, 63d Cong. 8–9 26; 3 Deschler’s Precedents ch. 14, § 6.5, at 2046 confront the witnesses against you, to call (1914); Conduct of Emory Speer: Hearings Before (same); H.R. Comm. on the Judiciary, Im- your own witnesses, and to have the assist- Subcomm. of H.R. Comm. on the Judiciary, 63d peachment of Richard M. Nixon, President of ance of counsel’’); H.R. Rep. No. 111–427, Cong. 23 (1914); 48 Cong. Rec. 8907 (1912) the United States, H.R. Rep. No. 93–1305, 93d 111th Cong. 11–12 (2010); H.R. Rep. No. 111–159, (Judge Archbald); VI Cannon’s Precedents Cong. 8–9 (1974) (same, Nixon impeachment). 111th Cong. 14 (2009); H.R. Rep. No. 105–830, at § 526, at 745 (Judge Hanford); Hearings Before 453. Clinton Impeachment Inquiry Procedures, 265–66 (‘‘[I]mpeachment not only mandates Subcomm. of H.R. Comm. on the Judiciary upon supra note 452, at 220; 3 Deschler’s Precedents due process, but [] ‘due process quad- the Articles of Impeachment of Lebbeus R. ch. 14, § 6.5, at 2045–47 (Nixon Impeachment rupled.’ ’’). Wilfley, Judge of U.S. Ct. for China, 60th Cong. Inquiry Procedures); see also H.R. Rep. No. 469. See, e.g., T. Morrison Dep. Tr. at 8:14– 3–4 (1908); Impeachment of Judge Charles 93–1305, at 8–9 (affording the President Nix- 15 (Oct. 31, 2019). Swayne: Evidence Before the Subcomm. of H.R. on’s counsel the ‘‘opportunity to . . . ask 470. 116th Congress Regulations for Use of Comm. on the Judiciary, 58th Cong. III (1904); such questions of the witnesses as the Com- Deposition Authority § 3, in 165 Cong. Rec. III Hinds’ Precedents § 2520, at 1034 (Judge mittee deemed appropriate’’). H1216 (2019). Ricks); id. § 2518, at 1031 (Judge Boarman); id. 454. See Impeachment Inquiry Pursuant to 471. See, e.g., A. Vindman Dep. Tr. at 77–80, § 2516, at 1027 (Judge Blodgett); id. § 2445, at H.R. Res. 581: Presentations by Investigative 82, 274–75 (Oct. 29, 2019); Morrison Dep. Tr. at 904 (Sec’y of War Belknap); id. § 2514, at 1024 Counsel, 105th Cong. 93 (Dec. 10, 1998); Hearing 69:23–70:5. (Consul-Gen. Seward); H.R. Rep. No. 43–626, Before the H.R. Comm. on the Judiciary: Im- 472. See David M. Drucker, Impeachment 43d Cong. V (1874) (Judge W. Story, J.); III peachment Inquiry Pursuant to H.R. Res. 581: Spin Win: Democrats Killing GOP in Testimony Hinds’ Precedents § 2507, at 1011 (Judge Presentation on Behalf of the President, 105th Leak Game, Wash. Examiner (Nov. 1, 2019), Durell); id. § 2512, at 1021 (Judge Busteed); Cong. 69 (Dec. 8–9, 1998) (Clinton Presentation https://perma.cc/FC7T-FZ49 (‘‘House Demo- Cong. Globe, 42d Cong., 3d Sess. 2124 (1873) on Behalf of the President). crats are crushing Republicans with the use (Judge Sherman); III Hinds Precedents § 2504, 455. H.R. Res. 581 § 2(b); 3 Deschler’s Prece- of testimony to frame the impeachment of at 1008 (Judge Delahay). dents ch. 14, § 6.5, at 2046; H.R. Res. 803 § 2(b). President Trump for American voters, 445. See, e.g., William Baude, Rethinking the 456 President Clinton’s counsel gave open- weaponizing selective leaks from closed-door Federal Eminent Domain Power, 122 Yale L.J. ing and closing statements, called 14 expert depositions to portray a commander in chief 1738, 1811 (2013) (explaining that the Founders witnesses, and cross-examined the witnesses. that abused his power.’’); see also, e.g., The envisioned that ‘‘post-ratification practice See generally Clinton Presentation on Behalf of Editorial Bd., Schiff’s Secret Bombshells, Wall can serve to give concrete meaning to a con- the President, supra note 454; Submission by St. J. (Oct. 23, 2019), https://perma.cc/T964- stitutional provision even if it was vague as Counsel for President Clinton to the H.R. 8DMS; Russell Berman & Elaine Godfrey, an original matter’’ and that ‘‘this is con- Comm. on the Judiciary, H.R. Comm. on the The Closed-Door Impeachment, The Atlantic sistent with an originalist theory of con- Judiciary, Comm. Print, Ser. No. 16, 105th (Oct. 19, 2019), https://perma.cc/JPT8-W7KB. stitutional construction’’); Caleb Nelson, Cong., 2nd Sess. (1998) (Submission by Counsel 473. HJC Report at 37. Originalism and Interpretive Conventions, 70 U. for President Clinton); H.R. Comm. on the Ju- 474. See supra Part II.B.2; see supra note Chi. L. Rev. 519, 521 (2003); see generally diciary, Impeachment of William Jefferson Clin- 443–454 and accompanying text. Baude, Constitutional Liquidation, supra note ton, President of the United States, H.R. Rep. 475. H.R. Rep. No. 105–830, at 210–11 (Minor- 424. No. 105–830, 105th Cong. 127 (1998); Clinton Ju- ity Views). 446. See NLRB v. Noel Canning, 573 U.S. 513, diciary Comm. Hearing Appearance of Inde- 476. Laurence Tribe & Joshua Matz, To End 525 (2014) (‘‘These precedents show that this pendent Counsel, supra note 449. President a Presidency: The Power of Impeachment 78 Court has treated practice as an important Nixon’s counsel attended all Committee (2018). interpretive factor even when the nature or hearings to hear the initial presentation of 477. ‘‘[T]he invocation of grand jury inter- longevity of that practice is subject to dis- evidence, submitted an 800-plus page re- ests is not ‘some talisman that dissolves all pute, and even when that practice began sponse, gave a two-day oral argument, ques- constitutional protections.’ ’’ Butterworth v. after the founding era.’’); Free Enter. Fund v. tioned witnesses, objected to testimony, sub- Smith, 494 U.S. 624, 630 (1990) (quoting United Public Co. Accounting Oversight Bd., 561 U.S. mitted a 151-page closing brief, and was States v. Dionisio, 410 U.S. 1, 11 (1973)). Grand 477, 505 (2010) (a ‘‘handful of isolated’’ exam- given all ‘‘the time that you want’’ to argue. juries do not ‘‘enjoy blanket exemption from ples cannot overcome the otherwise settled See Statement of Information Submitted on Be- the commands of due process.’’ United States ‘‘past practice of Congress’’); see also, e.g., half of President Nixon: Hearings Pursuant to v. Briggs, 514 F.2d 794, 804 (5th Cir. 1975); Sara Dames & Moore v. Regan, 453 U.S. 654, 684 H.R. Res. 803 Before the H.R. Comm. on the Ju- Sun Beale et al., Grand Jury Law and Practice (1981). diciary, 93d Cong. (1974) (Books I–IV); Hear- § 2:4 n.1 (2d ed. 2019); see, e.g., United States v. 447. Charles W. Johnson et al., House Prac- ings Pursuant to H.R. Res. 803 Before the H.R. Calandra, 414 U.S. 338, 346 (1974); Peters v. tice: A Guide to the Rules, Precedents, and Pro- Comm. on the Judiciary, 93d Cong. 1719–1866 Kiff, 407 U.S. 493, 504 (1972) (plurality opinion cedures of the House, 115th Cong., 1st Sess., (June 27–28, 1974); Testimony of Witnesses: of Marshall, J.); United States v. Hodge, 496 ch. 27, § 7, at 616 (2017), https://perma.cc/RB2S- Hearings Pursuant to H.R. Res. 803 Before the F.2d 87, 88 (5th Cir. 1974). Q965 (House Practice) (citing, as support for H.R. Comm. on the Judiciary, 93d Cong. (1974); 478. Illinois v. Abbott & Assocs., Inc., 460 U.S. this ‘‘modern practice,’’ the 1876 impeach- id., Book I at 70–90, 135–42, 232–41; id., Book II 557, 566 n.11 (1983). ment investigation of William Belknap in III at 29–55, 160–65, 196–98, 216–17, 257–88; id., Book 479. See, e.g., United States v. Procter & Gam- Hinds’ Precedents § 2445, at 904). III at 107–23, 134, 179–81, 399–45, 517–18, 669–92, ble Co., 356 U.S. 677, 681 n.6 (1958). 448. Impeachment Articles Referred on John 1888; 10 Weekly Comp. Pres. Docs. 840 (1974). 480. In re Am. Historical Ass’n, 62 F. Supp. 2d Koskinen (Part II): Hearing Before the H.R. 457. See Clinton Presentation on Behalf of the 1100, 1103 (S.D.N.Y. 1999); see also, e.g., Procter Comm. on the Judiciary, 114th Cong. 3 (2016) President, supra note 454; Submission by Coun- & Gamble Co., 356 U.S. at 681 n.6; Douglas Oil (statement of Rep. Jerrold Nadler). sel for President Clinton, supra note 456. Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 219 449. Hearing Pursuant to H.R. Res. 581 Before 458. H.R. Rep. No. 105–830, at 127; see gen- (1979). the H.R. Comm. on the Judiciary: Appearance of erally Clinton Independent Counsel Hearing, 481. See supra note 472 and accompanying Independent Counsel, 105th Cong. 6 (Nov. 19, supra note 449. text. 1998) (Clinton Independent Counsel Hearing) 459. United States v. James Daniel Good Real 482. See Fed. R. Crim. P. 6(e); 18 U.S.C. (statement of Rep. Jerrold Nadler). Prop., 510 U.S. 43, 48 (1993) (emphasis added). §§ 401(3), 641, 1503 (2018); see, e.g., United States 450. Impeachment Articles Referred on John 460. Chambers v. Miss., 410 U.S. 284, 294 v. Jeter, 775 F.2d 670, 675–82 (6th Cir. 1985); Koskinen (Part III): Hearing Before the H.R. (1973); see also, e.g., Greene v. McElroy, 360 Martin v. Consultants & Adm’rs, Inc., 966 F.2d Comm. on the Judiciary, 114th Cong. 30 (2016) U.S. 474, 496 (1959). 1078, 1097 (7th Cir. 1992); In re Sealed Case No. (statement of Rep. Hank Johnson). 461. Perry v. Leeke, 488 U.S. 272, 283 n.7 (1989) 99–3091, 192 F.3d 995, 1001 (D.C. Cir. 1999) (per 451. President Johnson was apparently ‘‘no- (quoting 5 Wigmore, Evidence § 1367 curiam); Beale et al., supra note 477, § 5:6, at tified of what was going on, but never asked (Chadbourn rev. 1974)). 5–28. to appear’’—a fact that Judiciary Committee 462. Id. 483. Polk Cty. v. Dodson, 454 U.S. 312, 318 members later found significant in dis- 463. Id. (quoting 4 J. Weinstein, Evidence (1981); see supra notes 459–465 and accom- counting President Johnson’s impeachment § 800[01] (1988)). panying text. as a precedent. Cong. Globe, 42d Cong., 3d 464. Id. 484. H.R. Res. 660 § 2(1).

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00061 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.057 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S348 CONGRESSIONAL RECORD — SENATE January 21, 2020 485. H.R. Rep. No. 105–830, at 126–127; 3 503. HJC Report at 23–24. 523. H.R. Res. 438, 115th Cong. (2017). Deschler’s Precedents ch. 14, § 6.5, at 2046–47. 504. See Rules of the House of Representa- 524. Caitlin Oprysko, Freshman Rep. Tlaib: 486. See supra notes 452–458 and accom- tives, Rule XI, cl. 2(j)(1) (‘‘[M]inority mem- Dem Majority Will ‘Impeach the Motherf_er’, panying text. bers of the committee shall be entitled, upon Politico (Jan. 4, 2019), https://perma.cc/ 487. See 165 Cong. Rec. E1357 (2019) (Im- request to the chair by a majority of them MAW7-WLQY. peachment Inquiry Procedures in the Com- before the completion of the hearing, to call 525. H.R. Res. 438, 115th Cong. (2017). mittee on the Judiciary Pursuant to H.R. witnesses selected by the minority to testify 526. Press Release, Dep’t of Justice, Attor- Res. 660). with respect to that measure or matter dur- ney General William P. Barr Delivers Re- 488. Letter from Jerrold Nadler, Chairman, ing at least one day of hearing thereon.’’ marks on the Release of the Report on the H.R. Comm. on Judiciary, to President Don- (emphasis added)). Investigation into Russian Interference in ald J. Trump, at 1 (Nov. 26, 2019). 505. E.g., Pelosi Says House Will Draft Im- the 2016 Presidential Election (Apr. 18, 2019), 489. See Press Release, House Judiciary peachment Charges Against Trump, supra note https://perma.cc/K5ZJ-2KA2 (‘‘[T]he evidence Committee, Wednesday: House Judiciary to 496. developed by the Special Counsel is not suffi- Hold Hearing on Constitutional Grounds for 506. Impeachment Inquiry Pursuant to H.R. cient to establish that the President com- Presidential Impeachment (Dec. 2, 2019), Res. 581: Consequences of Perjury and Related mitted an obstruction-of-justice offense.’’). https://perma.cc/5PFE-LCS5. Crimes: Hearing Before the H.R. Comm. on the 527. H.R. Res. 705, 115th Cong. (2018). 490. Letter from Charles F.C. Ruff, Counsel Judiciary, 105th Cong. 18–19 (1998) (Clinton Ju- 528. See Trump v. Hawaii, 138 S. Ct. 2392 to the President, et al., to Henry J. Hyde, diciary Comm. Hearing on Perjury) (statement (2018). Chairman, H.R. Comm. on Judiciary, et al. of Rep. Jerrold Nadler). 529. H.R. Res. 498, 116th Cong. (2019). (Oct. 21, 1998); Guy Gugliotta, House Hearing 507. Id. at 19. 530. H.R. Res. 396, 116th Cong. (2019). Set on Impeachment History, Wash. Post (Oct. 508. Clinton Judiciary Comm. Hearing on 531. In re Madison Guar. Sav. & Loan Ass’n, 24, 1998), https://perma.cc/2LDX-XDL2. Background of Impeachment, supra note 468, at No. 94–1, 1998 WL 472444, at *1 (D.C. Cir. Spe- 491. Letter from Pat A. Cipollone, Counsel 17 (statement of Rep. Jerrold Nadler). cial Div. Jan. 16, 1998); see also H.R. Doc. No. to the President, to Jerrold Nadler, Chair- 509. Press Release, Committee on the Judi- 105–310, Communication from Kenneth W. Starr, man, H.R. Comm. on Judiciary, at 4 (Dec. 1, ciary, U.S. House of Representatives, Fact Independent Counsel, Transmitting A Referral, 2019). Sheet: GOP Attacks on IRS Commissioner 105th Cong., at 3 (1998). The House authorized 492. Letter from Jerrold Nadler, Chairman, are Not Impeachment Proceedings (Sept. 21, the House Judiciary Committee’s review of H.R. Comm. on Judiciary, to President Don- 2016) (emphasis added), https://perma.cc/ the Independent Counsel’s referral two days ald J. Trump (Nov. 29, 2019). 6VYE-9JQV. after receiving it. H.R. Res. 525, 105th Cong. 493. See id. 510. Madeline Conway, Schiff: There Is Now (1998). 494. Dec. 1, 2019 Letter from Pat A. ‘More Than Circumstantial Evidence’ of Trump- 532. H.R. Res. 611, 105th Cong. (1998). Cipollone, supra note 491, at 4. Russia Collusion, Politico (Mar. 22, 2017), 533. The Senate Select Committee on Pres- 495. Id. (‘‘We stand ready to meet with you https://perma.cc/P5SL-BNM6. idential Campaign Activities was established to discuss a plan for these proceedings at 511. Rep. Schiff on MSNBC Morning Joe: by the U.S. Senate on February 7, 1973 to in- your convenience.’’). Trump Must Come to Congress for Any Strike vestigate 1972 presidential campaign fund- 496. Nicholas Fandos, Pelosi Says House Will Against Iran, YouTube (Sept. 17, 2019), https:// raising practices, the Watergate break-in, Draft Impeachment Charges Against Trump, perma.cc/J7X4-F6N2 (at 0:36–1:07). and the concealment of evidence relating to N.Y. Times (Dec. 5, 2019), https://perma.cc/ 512. Schiff’s False Claim His Committee Had the break-in. H.R. Rep. No. 93–1305, at 116. L8PG-23DL (Speaker Pelosi: ‘‘Today, I am Not Spoken to the Whistleblower, Wash. Post Prior to the conclusion of that Committee’s asking our Chairman to proceed with arti- (Oct. 4, 2019), https:// investigation, the House authorized the cles of impeachment.’’). www.washingtonpost.com/politics/2019/10/04/ House Judiciary Committee’s impeachment 497. Letter from Doug Collins, Ranking schiffs-false-claim-his-committee-had-not- inquiry in February 1974. Id. at 6. Member, H.R. Comm. on Judiciary, et al., to spokenwhistleblower/. 534. Id. at 10–11. Jerrold Nadler, Chairman, H.R. Comm. on 513. Glenn Kessler, About The Fact Checker 535. The House voted against President Judiciary, at 2 (Nov. 12, 2019); Letter from (Jan. 21, 2017), https://perma.cc/VCD4-N3NB. Johnson’s impeachment in December 1867. III Doug Collins, Ranking Member, H.R. Comm. 514. Lori Robertson, Schiff Wrong on Whis- Hinds’ Precedents § 2407, at 843. In February on Judiciary, to Jerrold Nadler, Chairman, tleblower Contact, FactCheck.org (Oct. 6, 1868, the House transferred the record from H.R. Comm. on Judiciary, at 1–2 (Nov. 14, 2019), https://perma.cc/BZ8FSWJW. the first impeachment inquiry to the Com- 2019); Letter from Doug Collins, Ranking 515. See, e.g., Julie E. Barnes et al., Schiff mittee on Reconstruction as part of Presi- Member, H.R. Comm. on Judiciary, to Got Early Account of Accusations as Whistle- dent Johnson’s second impeachment inquiry. Jerrold Nadler, Chairman, H.R. Comm. on Blower’s Concerns Grew, N.Y. Times (Oct. 2, Id. § 2408, at 845. Judiciary, at 6 (Nov. 18, 2019); Letter from 2019), https://perma.cc/7ZZ4-BLRC; Ellen 536. Id. § 2400, at 823. Doug Collins, Ranking Member, H.R. Comm. Nakashima, Whistleblower Sought Informal 537. Id. § 2416, at 855–56. on Judiciary, to Jerrold Nadler, Chairman, Guidance from Schiff’s Committee Before Filing 538. Impeachment Inquiry into President Don- H.R. Comm. on Judiciary (Dec. 2, 2019); Let- Complaint Against Trump, Wash. Post (Oct. 2, ald J. Trump: Constitutional Grounds for Presi- ter from Doug Collins, Ranking Member, 2019), https://perma.cc/SM2B-6BJN. dential Impeachment: Hearing Before the H.R. H.R. Comm. on Judiciary, to Jerrold Nadler, 516. ‘‘Whistleblower Disclosure’’: Hearing of Comm. on the Judiciary, 116th Cong. (Dec. 4, Chairman, H.R. Comm. on Judiciary (Dec. 4, the H.R. Permanent Select Comm. on Intel- 2019) (written statement of Professor Jona- 2019); Letter from Doug Collins, Ranking ligence, 116th Cong. (Sept. 26, 2019) (statement than Turley, George Washington Univ. Law Member, H.R. Comm. on Judiciary, to of Rep. Adam Schiff); see also, e.g., Daniel School, at 4 n.7, https://perma.cc/QU4H- Jerrold Nadler, Chairman, H.R. Comm. on Dale, Fact Check: Breaking Down Adam FZC4); III Hinds’ Precedents § 2408, at 845 (re- Judiciary (Dec. 5, 2019); Letter from Doug Schiff’s Account of Trump’s Ukraine Call, CNN ferring evidence from the first impeachment Collins, Ranking Member, H.R. Comm. on (Sept. 27, 2019), https://perma.cc/SM2B-6BJN. inquiry to committee conducting second im- Judiciary, to Jerrold Nadler, Chairman, H.R. 517. Rose v. Clark, 478 U.S. 570, 577–78 (1986); peachment inquiry); cf. HJC Report at 47–48. Comm. on Judiciary (Dec. 6, 2019). see also, e.g., United States v. Cronic, 466 U.S. 539. Raoul Berger, Impeachment: The Con- 498. Letter from Jerrold Nadler, Chairman, 648, 659 (1984) (holding that denial of rep- stitutional Problems 271–72 (1973). H.R. Comm. on Judiciary, to Doug Collins, resentation by counsel ‘‘makes the adversary 540. Special Counsel Robert S. Mueller, III, Ranking Member, H.R. Comm. on Judiciary process itself presumptively unreasonable’’). Report on the Investigation into Russian Inter- (Dec. 8, 2019). 518. Winterberger v. Gen. Teamsters Auto ference in the 2016 Presidential Election, vol. I 499. See supra notes 491–495, 497–498 and ac- Truck Drivers & Helpers Local Union 162, 558 at 2 (Mar. 2019), https://perma.cc/EGB4-WA76. companying text. F.2d 923, 925 (9th Cir. 1977) (administrative 541. Kailani Koenig, Schiff: ‘More Than Cir- 500. Nov. 26, 2019 Letter from Jerrold Nad- law). cumstantial Evidence’ Trump Associates ler, supra note 488. 519. Bank of Nova Scotia v. United States, 487 Colluded With Russia, NBC News (Mar. 22, 501. See 165 Cong. Rec. E1357 (2019) (Im- U.S. 250, 256 (1988); see also, e.g., Beck v. Wash- 2017), https://perma.cc/P5KE-6BE4. peachment Inquiry Procedures in the Com- ington, 369 U.S. 541, 546 (1962); United States v. 542. Tim Hains, Adam Schiff: Republicans in mittee on the Judiciary Pursuant to H.R. Estepa, 471 F.2d 1132, 1137 (2d Cir. 1972) Congress (Ryan, Gowdy, Nunes, Meadows, Jor- Res. 660 T F) (‘‘Should the President unlaw- (Friendly, J.) (reversing judgment of convic- dan) Are Complicit in Trump’s Lies, fully refuse to make witnesses available for tion because the government’s argument be- RealClearPolitics (May 27, 2018), https:// testimony to, or to produce documents re- fore the grand jury relied upon hearsay). perma.cc/H5JM-RZHK. quested by, the investigative committees 520. Zack Stanton, Pelosi: Unless We Im- 543. See U.S. Dep’t of Justice Office of the . . . , the chair shall have the discretion to peach Trump, ‘Say Hello to a President-King’, Inspector General, Review of Four FISA Ap- impose appropriate remedies, including by Politico (Dec. 18, 2019), https://perma.cc/ plications and Other Aspects of the FBI’s denying specific requests by the President or 3R3M-D356. Crossfire Hurricane Investigation (Dec. 2019) his counsel under these procedures to call or 521. Matea Gold, The Campaign to Impeach (OIG FISA Report); id. at vii–viii, 95–96, 172, question witnesses.’’), and H.R. Rep. No. 116– President Trump Has Begun, Wash. Post (Jan. 256 n.400; Order, In re Accuracy Concerns Re- 266, 116th Cong. 9–10 (2019). 20, 2017), https://perma.cc/HW4U-LBX6. garding FBI Matters Submitted to the FISC, No. 502. Simmons v. United States, 390 U.S. 377, 522. Mark S. Zaid (@MarkSZaidEsq), Twit- Misc. 19–02 (FISA Ct. Dec. 17, 2019). 394 (1968); see also Bourgeois v. Peters, 387 F.3d ter (Jan. 30, 2017, 6:54 PM), https://perma.cc/ 544. OIG FISA Report, supra note 543, at 1303, 1324 (11th Cir. 2004). TUF2-NLP3. viii.

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00062 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.057 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S349 545. Id. at 160, 256 n.400; see also Jerry concerned that the United States seemed tion for his April 21 and July 25 calls, yet ig- Dunleavy, FBI Lawyer Under Criminal Inves- to—to bear the exclusive brunt of security nored them both times and did not mention tigation Altered Document to Say Carter Page assistance to Ukraine. He wanted to see the corruption on either call.’’). ‘Was Not a Source’ for Another Agency, Wash. Europeans step up and contribute more secu- 575. See A. Vindman Dep. Tr. at 109, 241 Exam. (Dec. 9, 2019), https://perma.cc/3J4Z- rity assistance.’’). (Oct. 29, 2019) (explaining that the NSC talk- WZCJ. 564. July 25 Call Mem., infra Appendix A, at ing points discussed ‘‘deliver[ing] on the 546. OIG FISA Report, supra note 543, at 2. anticorruption agenda’’ and ‘‘reinforc[ing] xiii; Inspector General Report on Origins of 565. See, e.g., Sharyl Attkisson, Timeline of efforts to root out corruption’’). FBI’s Russia Inquiry: Hearing Before S. Comm. Alleged Ukrainian-Democrat Meddling in 2016 576. July 25 Call Mem., infra Appendix A, at on the Judiciary, C-SPAN at 1:19:22, 3:49:34 Presidential Election, Epoch Times (Nov. 27, 4. (Dec. 11, 2019), https://www.cspan.org/video/ 2019), https://perma.cc/9EYP-9RUE; Andrew 577. Kyiv Post, Zelensky Talks Trump, U.S. ?466593-1/justice-department-ig-horowitz-de- E. Kramer, Ukraine Court Rules Manafort Dis- Elections, Giuliani at All-Day Press Marathon, fends-report-highlights-fisa-problems; id. at closure Caused ‘Meddling’ in U.S. Election, YouTube, at 0:17 (Oct. 10, 2019), https:// 4:59:16 (Inspector General Horowitz: ‘‘There N.Y. Times (Dec. 12, 2018), https://perma.cc/ youtu.be/iG5kVNm_R5Y?t=17. is such a range of conduct here that is inex- 87B2-XYAN; Kenneth P. Vogel & David 578. Id. at 0:33, https://youtu.be/ Stern, Ukrainian Efforts to Sabotage Trump plicable. And the answers we got were not iG5kVNm_R5Y?t=33. Backfire, Politico (Jan. 11, 2017), https:// satisfactory that we’re left trying to under- 579. July 25 Call Mem., infra Appendix A, perma.cc/5K56-46YG; Roman Olearchyk, stand how could all these errors have oc- at 2–3. Ukraine’s Leaders Campaign Against ‘Pro- curred over a nine-month period or so, 580. HPSCI Report at XI. Putin’ Trump, Financial Times (Aug. 28, 2016), among three teams, hand-picked, one of the 581. July 25 Call Mem., infra Appendix A, at https://www.ft.com/content/c98078d0-6ae7- highest profile, if not the highest profile, 3 (emphases added). case in the FBI, going to the very top of the 11e6-a0b1-d87a9fea034f; Press Release, Sen- ators Seek Interviews on Reported Coordination 582. Id. at 2–3. organization, involving a presidential cam- 583. M. Yovanovitch Dep. Tr. at 314:15–18 paign.’’). Between Ukrainian Officials, DNC Consultant to Aid Clinton in 2016 Elections (Dec. 6, 2019), (Oct. 11, 2019) (‘‘[Q.] The foreign aid that was 547. Press Release, Dep’t of Justice, Attor- has been reported as being held up, it doesn’t ney General William P. Barr Delivers Re- https://perma.cc/PAE6-RV78?type=image. 566. July 25 Call Mem., infra Appendix A, at relate to Javelins, does it? [A.] No. At least marks on the Release of the Report on the 3. I’m not aware that it does.’’); id. at 315:4–7 Investigation into Russian Interference in 567. See infra note 737 and accompanying (‘‘[Q.] But it was actually aid that had been the 2016 Presidential Election (Apr. 18, 2019), text; July 25 Call Mem., infra Appendix A at appropriated and it had nothing to do with https://perma.cc/K5ZJ-2KA2.elected.’’ 3. Javelins. Would you agree with that? [A.] 548. Rebecca Shabad & Alex Moe, Impeach- 568. F. Hill Dep. Tr. at 76:20–77:11 (Oct. 14, That’s my understanding.’’); T. Morrison ment Inquiry Ramps Up as Judiciary Panel 2019); see also C. Croft Dep. Tr. at 125:12– Dep. Tr. at 79:25–80:2 (Oct. 31, 2019) (‘‘[Q.] Adopts Procedural Guidelines, NBC News 126:15 (Oct. 30, 2019). Senator Johnson re- Okay. In your mind, are the Javelins sepa- (Sept. 12, 2019), https://perma.cc/6694-SWXX. called similar concerns over ‘‘rumors that rate from the security assistance funds? [A.] 549. Clerk, H.R., Final Vote Results for [President] Zelensky was going to appoint Yes.’’). Roll Call 695 on Agreeing to Article I of the Andriy Bohdan, the lawyer for oligarch Igor 584. See HPSCI Report at XI. Resolution (Dec. 18, 2019), http://clerk Kolomoisky, as his chief of staff.’’ Letter 585. See, e.g., Remarks By President Trump house.gov/evs/2019/roll695.xml; Clerk, H.R., from Sen. Ron Johnson to Rep. Jim Jordan, And Prime Minister Abe of Japan Before Bi- Final Vote Results for Roll Call 696 on Ranking Member, H.R. Comm. on Oversight lateral Meeting, New York, NY (Sept. 25, Agreeing to Article II of the Resolution (Dec. & Reform, and Rep. Devin Nunes, Ranking 2019), https://perma.cc/6E4V-AYC4 (‘‘So we 18, 2019), http://clerk.house.gov/evs/2019/ Member, H.R. Permanent Select Comm. on did [China] a favor. But they’re doing us a roll696.xml. Intelligence, at 3 (Nov. 18, 2019). And Ambas- favor. But they’re buying a lot of agricul- 550. 144 Cong. Rec. H11786 (1998) (statement sadors Taylor and Volker even discussed tural product and, in particular, where you of Rep. Jerrold Nadler). these concerns directly with President are.’’); Remarks by President Trump at the 551. 145 Cong. Rec. S1582 (1999) (statement Zelensky. See W. Taylor Dep. Tr. at 86:13–22 2019 White House Business Session With Our of Sen. Patrick Leahy) (emphasis added). (Oct. 22, 2019); K. Volker Interview Tr. at Nation’s Governors (Feb. 25, 2019), https:// 552. Brooke Singman & Guerin Hays, Dem. 137:15–25 (Oct. 3, 2019). perma.cc/WK7Z-L82N (‘‘And I said to Presi- Rep. Brushes Off Pelosi Pushback, Says He’ll 569. See July 25 Call Mem., infra Appendix dent Xi—I said, ‘President, you have to do Pursue Trump Impeachment, Fox News (Mar. A, at 4 (President Zelensky understood me a favor. As part of our trade deal. . .’ ’’); 12, 2019), https://perma.cc/2LK6-W4TR (brack- President Trump’s comments to be referring Remarks by President Trump at Workforce ets in original). ‘‘specifically to the company’’). Development Roundtable (July 26, 2018), 553. Nicole Gaudiano & Eliza Collins, Exclu- 570. See Tim Hains, FLASHBACK, 2018: Joe https://perma.cc/AT2V-U4PQ (‘‘I said to the sive: Nancy Pelosi Vows ‘Different World’ for Biden Brags at CFR Meeting About With- Europeans, I said, ‘Do me a favor. Would you Trump, No More ‘Rubber Stamp’ in New Con- holding Aid to Ukraine to Force Firing of Pros- go out to the farms in Iowa and all the dif- gress, USA Today (Jan. 3, 2019), https:// ecutor, RealClearPolitics (Sept. 27, 2019), ferent places in the Midwest? Would you buy perma.cc/LF66-R7NU; see also, e.g., Brian https://www.realclearpolitics.com/video/2019/ a lot of soybeans, right now?’ ’’); Geoff Fung, Pelosi Tamps Down Talk of Impeach- 09/27/flashback _2018 _joe _biden _brags _at Brumfiel, Trump Says North Korea Will De- ment, Wash. Post (Jan. 6, 2019), https:// _cfr _meeting _about _withholding _aid _to stroy Missile Site. But Which One?, NPR (June perma.cc/8VQ3-RYZ5 (Pelosi: ‘‘If and when _ukraine _to _force _firing_of _prosecutor 12, 2018), https://perma.cc/LKV5-7YAG (‘‘I the time comes for impeachment, it will html. said, ‘Do me a favor. You’ve got this missile have to be something that has such a cre- 571. See Adam Taylor, Hunter Biden’s New engine testing site. . . .’ I said, ‘Can you scendo in a bipartisan way.’’). Job at a Ukrainian Gas Company Is a Problem 554. Impeachment Inquiry into President Don- for U.S. Soft Power, Wash. Post (May 14, 2014), close it up?’ ’’); Transcript: Donald Trump’s ald J. Trump: Constitutional Grounds for Presi- https://perma.cc/Q4QS-4H3B. New York Press Conference (Sept. 26, 2018), dential Impeachment Before the H.R. Comm. on 572. See, e.g., Kenneth P. Vogel & Iuliia https://perma.cc/G6Y9-XHST (‘‘Japan just the Judiciary, 116th Cong. (Dec. 4, 2019) (writ- Mendel, Biden Faces Conflict of Interest Ques- gave us some numbers that are incred- ten statement of Professor Jonathan Turley, tions That Are Being Promoted by Trump and ible.... I said, ‘You have to do me a favor. Geo. Wash. Univ. Law Sch., at 4, https:// Allies, N.Y. Times (May 1, 2019), https:// We don’t want these big deficits. You’re perma.cc/QU4H-FZC4). perma.cc/6A4G-2CRE (‘‘Among those who had going to have to buy more.’ ’’). 555. Justine Coleman, Pelosi Reaction to a stake in the outcome was Hunter Biden, 586. NSC Senior Director Morrison raised Democrats Clapping After Impeachment Vote Mr. Biden’s younger son, who at the time concerns ‘‘about a potential leak of the Goes Viral, The Hill (Dec. 19, 2019), https:// was on the board of an energy company [transcript],’’ but he had no concern about perma.cc/LJ5U-E8VA. owned by a Ukrainian oligarch who had been the substance of the call. Morrison Dep. Tr. 556. The Federalist No. 65, at 396 (Alex- in the sights of the fired prosecutor gen- at 16:4–10. ander Hamilton) (Clinton Rossiter ed., 1961). eral.’’). 587. Vindman Dep. Tr. at 155. 557. Id. at 400. 573. Michael Kranish & David L. Stern, As 588. Id. at 18–19. 558. Id. at 396–97. Vice President, Biden Said Ukraine Should In- 589. Impeachment Inquiry: Ms. Jennifer Wil- 559. The Federalist No. 66, at 402 (Alex- crease Gas Production. Then His Son Got a Job liams & Lt. Col. Alexander Vindman Before the ander Hamilton) (Clinton Rossiter ed., 1961). with a Ukrainian Gas Company, Wash. Post H.R. Permanent Select Comm. on Intelligence, 560. H.R. Res. 755, 116th Cong. art. I (2019). (July 22, 2019), https://perma.cc/L24P-367Z 116th Cong. 130–31 (Nov. 19, 2019) (Williams- 561. July 25 Call Mem., infra Appendix A. (‘‘In an email interview with The Post, Vindman Public Hearing); Vindman Dep. Tr. 562. See infra Part III.B.2. Shokin [the fired prosecutor] said he believes at 155. 563. July 25 Call Mem., infra Appendix A, at his ouster was because of his interest in 590. Morrison Dep. Tr. at 60. 2; see also Impeachment Inquiry: Amb. Kurt [Burisma].... Had he remained in his post, 591. Press Release, The White House, State- Volker and Mr. Timothy Morrison Before the Shokin said, he would have questioned Hun- ment from Lt. Gen. Keith Kellogg, National H.R. Permanent Select Comm. on Intelligence, ter Biden.’’). Security Advisor to Vice President Mike 116th Cong. 64 (Nov. 19, 2019) (Volker-Morri- 574. HJC Report at 121; id. at 101 (‘‘He was Pence (Nov. 19, 2019), https://perma.cc/7FT8- son Public Hearing) (‘‘The President was given extensive talking points about corrup- U3QY.

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00063 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.059 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S350 CONGRESSIONAL RECORD — SENATE January 21, 2020 592. Press Release, President of Ukraine, that the first time that you believe the In your mind, are the Javelins separate from Volodymyr Zelensky Had a Phone Conversa- Ukrainians may have had a real sense that the security assistance funds? A. Yes.’’). tion with President of the United States the aid was on hold? [A.] Yes.’’). 625. H.R. Res. 755, 116th Cong. art. I (2019); (July 25, 2019), https://perma.cc/DKP3-VKCH. 606. Taylor-Kent Public Hearing, supra see also HPSCI Report at 24; HJC Report at 593. Simon Shuster, ‘I Don’t Trust Anyone note 604, at 154:19–23 (‘‘[Q.] Mr. Kent, . . . 76. at All.’ Ukrainian President Volodymyr when was the first time a Ukrainian official 626. Yovanovitch Dep. Tr. at 140:24–141:3 Zelensky Speaks Out on Trump, Putin, and a contacted you, concerned about potential (‘‘And I actually felt that in the 3 years that Divided Europe, Time (Dec. 2, 2019), https:// withholding of USAID [sic]? [A.] It was after I was there, partly because of my efforts, but perma.cc/Z65U-FKAR. the article in Politico came out, in that first also the interagency team, and President 594. Ukraine President Downplays Trump intense week of September.’’); G. Sondland Trump’s decision to provide lethal weapons Pressures in All-Day Media Marathon, Politico Interview Tr. at 177:11–17 (Oct. 17, 2019) (testi- to Ukraine, that our policy actually got (Oct. 10, 2019), https://perma.cc/QVM-HFNK fying that ‘‘I don’t recall exactly when I stronger over the last 3 years.’’). (‘‘Responding to questions from The Associ- learned that the Ukrainians learned’’ but 627. Yovanovitch Dep. Tr. at 144:14–16. ated Press, Zelenskiy said he only learned agreeing that ‘‘by the time there was a Po- 628. Taylor Dep. Tr. at 155:14–23. after their July 25 phone call that the U.S. litico report . . . everyone would have 629. G. Kent Interview Tr. at 294:10–17 (Oct. had blocked hundreds of millions of dollars known.’’). 15, 2019). in military aid to Ukraine. ‘We didn’t speak 607. Stephanie Baker & Daryna 630. Volker-Morrison Public Hearing, supra about this’ during the July call, Zelenskiy Krasnolutska, Ukraine’s Fraught Summer In- note 563, at 58; see also id. at 58–59 (‘‘[Q.] And said. There was no blackmail.’ ’’). cluded a Rogue Embassy in Washington, for many years, there had been an initiative 595. See President Trump Meeting with Bloomberg (Nov. 22, 2019), https://perma.cc/ in the interagency to advocate for lethal de- Ukrainian President, C-SPAN, at 08:10 (Sept. YUB5-E92S. fensive weaponry for Ukraine. Is that cor- 25, 2019), https://www.c-span.org/video/?464711- 608. Andrew E. Kramer, Trump’s Hold on rect? [A.] That is correct. [Q.] And it wasn’t 1/president-trump-meets-ukrainian-leader- Military Aid Blindsided Top Ukrainian Offi- until President Trump and his administra- memo-release (‘‘[W]e had, I think, [a] good cials, N.Y. Times (Sept. 22, 2019), https:// tion came in that that went through? [A.] phone call. It was normal. We spoke about perma.cc/7PR9-DAAS. That is correct.’’). many things. And I—so I think, and you read 609. Ukraine’s Fraught Summer Included a 631. Nov. 18, 2019 Letter from Sen. Ron it, that nobody pushed—pushed me.’’); Meg Rogue Embassy in Washington, supra note 607 Johnson, supra note 568, at 2. Wagner et al., Ukraine President Insists ‘‘No (‘‘Had the top people in Kyiv known about 632. Volker Interview Tr. at 80:6–7. One Can Put Pressure on Me’’ to Investigate the holdup earlier, they said, the matter 633. D. Hale Dep. Tr. at 85:2–3 (Nov. 6, 2019). 634. Trump’s Hold on Military Aid Blindsided Bidens, CNN (Oct. 1, 2019), https://perma.cc/ would have been raised with National Secu- Top Ukrainian Officials, supra note 608. AAV7-74G4 (‘‘I don’t feel pressure.... I have rity Advisor John Bolton during his visit on 635. Hale Dep. Tr. at 82:2–6. lots of people who’d like to put pressure on Aug. 27.’’). 636. Impeachment Inquiry: Dr. Fiona Hill and me here and abroad. I’m the president of an 610. Taylor-Kent Public Hearing, supra Mr. David Holmes Before the H.R. Permanent independent Ukraine—no one can put pres- note 604, at 108:4–19. Select Comm. on Intelligence, 116th Cong. 75:17– sure on me.’’). 611. Volker Interview Tr. at 168:10–169:23. 19 (Nov. 21, 2019) (Hill-Holmes Public Hear- 596. Volker Interview Tr. at 313:2–9. 612. Volker-Morrison Public Hearing, supra ing). 597. Taylor Dep. Tr. at 31:6–8. note 563, at 68 (‘‘I received a text message 637. Trial Mem. of the U.S. House of Rep- 598. Croft Dep. Tr. at 117:7–12. from one of my Ukrainian counterparts on 599. Matthias Williams, Ukraine Minister resentatives at 26. August 29th forwarding that article, and 638. Hill Dep. Tr. at 118:19–22. Denies Trump Put Pressure on Zelenskiy During that’s the first they raised it with me.’’); 639. Yovanovitch Dep. Tr. at 142:10–16 (‘‘Q. Call: Report, Reuters (Sept. 21, 2019), https:// Text Message from Andriy Yermak, Adviser Were you aware of the President’s deep-root- perma.cc/J8TF-8SQ3. to President Zelensky, to Kurt Volker, U.S. ed skepticism about Ukraine’s business envi- 600. Mairead McArdle, Ukrainian Foreign Special Rep. for Ukraine Negotiations, at ronment? A. Yes. Q. And what did you know Minister Denies Sondland Linked Military Aid KV00000020 (Aug. 29, 2019, 3:06:14 AM), https:// about that? A. That he—I mean, he shared Delay to Biden Investigation, National Rev. perma.cc/PV4B-T6HM. (Nov. 14, 2019), https://perma.cc/DPF6-GB5V that concern directly with President 613. Volker Interview Tr. at 124:11–125:1 Poroshenko in their first meeting in the (citing Interfax-Ukraine); see also Matthias (emphasis added). Oval Office.’’); 143:8–10 (Q. The administra- Williams, U.S. Envoy Sondland Did Not Link Impeachment Inquiry: Amb. Gordon 614. tion had concerns about corruption in Biden Probe to Aid: Ukraine Minister, Reuters Sondland Before the H.R. Permanent Select (Nov. 14, 2019), https://perma.cc/2URG-9H5Y Ukraine, correct? A. We all did.’’). Comm. on Intelligence, 116th Cong. 40 (Nov. 20, 640. Morrison Dep. Tr. at 16:16–17. (‘‘ ‘I have never seen a direct relationship be- 2019) (Sondland Public Hearing). 641. Croft Dep. Tr. at 21:20–22:5; see also The tween investigations and security assist- 615. Letter from Sen. Ron Johnson, supra White House, President Trump Meets with ance,’ [Ukraine Foreign Minister Vadym] note 568, at 6. President Poroshenko of Ukraine (Sept. 22, Prystaiko was quoted as saying by 616. Volker-Morrison Public Hearing, supra 2017), https://perma.cc/A5AC-PNS2 (‘‘The Interfax.’’). note 563, at 106 07. President recommended that President 601. Simon Shuster, Exclusive: Top Ukraine 617. Taylor-Kent Public Hearing, supra Poroshenko continue working to eliminate Official Andriy Yermak Casts Doubt on Key Im- note 604, at 109:18–20 (testifying that his corruption and improve Ukraine’s business peachment Testimony, Time (Dec. 10, 2019), ‘‘clear understanding’’ ‘‘came from Ambas- climate.’’). https://perma.cc/A93U-KVKF. sador Sondland’’); id. at 110:6–8 (‘‘[Q.] You 642. Croft Dep. Tr. at 32:16–25. 602. See Caitlin Emma & Connor O’Brien, said you got this from Ambassador 643. Hill Dep. Tr. at 34:7–13. Trump Holds up Ukraine Military Aid Meant to Sondland. [A.] That is correct.’’); Taylor 644. See, e.g., Yovanovitch Dep. Tr. at 17:9– Confront Russia, Politico (Aug. 28, 2019), Dep. Tr. at 297:21–298:1 (‘‘[Q.] But if I under- 12; Taylor Dep. Tr. at 87:20–25; Kent Inter- https://perma.cc/9FFS-B9WT. stand this correctly, you’re telling us that view Tr. at 105:15–18, 151:2122. 603. Volker-Morrison Public Hearing, supra Tim Morrison told you that Ambassador 645. Hale Dep. Tr. at 82:18–22. note 563, at 22; see also id. at 143; Volker Sondland told him that the President told 646. Office of Mgmt. & Budget, Budget of the Interview Tr. at 125:14–17 (‘‘To my knowl- Ambassador Sondland that Zelensky would U.S. Government Fiscal Year 2018, at 13 (May edge, the news about a hold on security as- have to open an investigation into Biden?’’ 23, 2017), https://perma.cc/GE2U-MPMU. sistance did not get into Ukrainian Govern- [A.] That’s correct.’’); see also, e.g., id. at 647. Office of Mgmt. & Budget, Budget of the ment circles, as indicated to me by the cur- 35:20–25, 38:13–16. U.S. Government Fiscal Year 2020, at 71 (Mar. rent foreign minister, then diplomatic ad- 618. Morrison Dep. Tr. at 17:13–16. 11, 2019), https://perma.cc/5ER6-7A3Q. viser, until the end of August.’’). 619. Sondland Public Hearing, supra note 648. Trial Mem. of the U.S. House of Rep- 604. Taylor Dep. Tr. at 119:21–24; Impeach- 614, at 148–49 (emphasis added). resentatives at 28. ment Inquiry: Amb. William Taylor & Mr. 620. Sondland Interview Tr. at 35:8–11. 649. Id. George Kent Before the H.R. Permanent Select 621. Declaration of Ambassador Gordon D. 650. Volker-Morrison Public Hearing, supra Comm. on Intelligence, 116th Cong. 154:10–13 Sondland T 4 (Nov. 4, 2019) (emphasis added). note 563, at 63. (Nov. 13, 2019) (Taylor-Kent Public Hearing) 622. Sondland Public Hearing, supra note 651. Id. at 64. (‘‘[Q.] Ambassador Taylor, earlier you were 614, at 150–51. 652. Email from Eric Chewning, Chief of testifying that Ukrainian officials did not 623. HJC Report at 97 (quotations omitted). Staff, Office of the Secretary of Defense, to become aware of potential U.S. assistance 624. M. Yovanovitch Dep. Tr. at 314:15–18 John Rood, Under Secretary of Defense for being withheld until August 29th. Is that ac- (Oct. 11, 2019) (‘‘[Q.] . . . The foreign aid that Policy, and Elaine McCusker, Under Sec- curate? [A.] That’s my understanding, Mr. was—has been reported as being held up, it retary of Defense (Comptroller) (June 24, Hurd.’’). doesn’t relate to Javelins, does it? [A.] No. 2019), available at https://publicintegrity.org/ 605. Morrison Dep. Tr. at 17:11–12 (‘‘I have At least I’m not aware that it does.’’); id. at national-security/trump-administration-offi- no reason to believe the Ukrainians had any 315:4–7 (‘‘[Q.] But it was actually aid that had cials-worried-ukraine- aid-halt-violated- knowledge of the review until August 28, been appropriated and it had nothing to do spending-law (page 11); L. Cooper Dep. Tr. at 2019.’’); see also Volker-Morrison Public Hear- with Javelins. Would you agree with that? 33 (Oct. 23, 2019) (summarizing follow-up ing, supra note 563, at 68 (‘‘[Q.] You men- [A.] That’s my understanding.’’); Morrison questions from ‘‘a meeting with the Presi- tioned the August 28th Politico article. Was Dep. Tr. at 79:25–80:2 (Oct. 31, 2019) (‘‘Q. Okay. dent’’).

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00064 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.060 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S351 653. See supra Part III.A.1. on the first day of work of the new par- 715. Ukrainian Efforts to Sabotage Trump 654. Nov. 18, 2019 Letter from Sen. Johnson, liament, including those aimed to overcome Backfire, supra note 565. supra note 568, at 5. corruption.’’). 716. Id. 655. Taylor Dep. Tr. at 35:8–19; see also J. 682. Morrison Dep. Tr. at 225:8–11. 717. Ukraine’s Leaders Campaign Against Williams Dep. Tr. at 81:7–11 (Nov. 7, 2019) (the 683. Id. at 242:12–243:7. ‘Pro-Putin’ Trump, supra note 565 (‘‘Hillary Vice President wanted to ‘‘hear if there was 684. Id. at 243:2–7, 244:7–12. Clinton, the Democratic nominee, is backed more that European countries could do to 685. Id. at 243:6–7. by the pro-western government that took support Ukraine’’); Morrison Dep. Tr. at 686. Id. at 242:22–24. power after Mr. Yanukovich was ousted by 224:19–225:6 (‘‘[T]he President believed that 687. See President Trump Meeting with street protests in 2014.... If the Republican the Europeans should be contributing more Ukrainian President, supra note 595. candidate [Donald Trump] loses in Novem- in security-sector assistance.’’). 688. Morrison Dep. Tr. at 115:10–12. ber, some observers suggest Kiev’s actions 656. Cooper Dep. Tr. at 14. 689. Id. at 106:10–15, 107:2–6. may have played at least a small role.’’). 690. Id. at 106:10 107:4, 107:10–16. 657. July 25 Call Mem., infra Appendix A, at 718. Id. (internal quotation marks omit- 691. Id. at 106:10–15. 2. ted). 692. Id. at 108:20–21. 658. Karen DeYoung, U.S. Withdrawing $100 719. Hill-Holmes Public Hearing, supra note 693. Volker Interview Tr. at 127:12–14. Million in Aid to Afghanistan Amid Corruption 694. Morrison Dep. Tr. at 266:8–10 (‘‘We were 636, at 112:2–9. Concerns, Wash. Post (Sept. 19, 2019), https:// expecting the President to meet with Presi- 720. United States v. Concord Mgmt. & Con- perma.cc/TK8K-4332. dent Zelensky on 1 September. It’s the mid- sulting LLC, 347 F. Supp. 3d 38, 56 n.9 (D.D.C. 659. Rachel Frazin, Trump: South Korea dle of August; it’s about 2 weeks.’’). 2018) (ellipsis in original) (quoting Bluman v. Should Pay ‘Substantially More’ for Defense 695. See Foreign Ministry, Presidential Office FEC, 800 F. Supp. 2d 281., 288 (D.D.C. 2011)). Costs, The Hill (Aug. 7. 2019), https:// Prepares Zelensky-Trump Meeting in Warsaw, 721. See 52 U.S.C. § 30121 (2018). 722. President Donald J. Trump, Statement perma.cc/T672-JNN3. National News Agency of Ukraine (Aug. 22, on Signing an Executive Order on Imposing 660. Camilo Montoya-Galvez, U.S. Cuts Mil- 2019), https://perma.cc/EK2G-5RSZ. lions in Aid to Central America, Fulfilling 696. Hale Dep. Tr. at 72:24 73:1; Volker Certain Sanctions in the Event of Foreign Trump’s Vow, CBS News (June 18, 2019), Interview Tr. at 130:17–23 (‘‘This was the Interference in a United States Election, 2018 https://perma.cc/2K6V-337X. President’s trip to Warsaw as part of that Daily Comp. Pres. Doc. 592 (Sept. 12, 2018), 661. Ben Gittleson & Conor Finnegan, World War II commemoration. That was https://perma.cc/ BEQ3-T3T3. 723. Tim Hains, Rep. Adam Schiff: Democrats Trump Administration Releases Lebanon Mili- when he cancelled because of the hurricane Meeting Ukrainians ‘‘Different Degree Of In- tary Aid After It Was Held Up for Months, ABC watch.’’); Isabel Togoh, Hurricane Dorian: volvement’’ Than Trump-Russia, Real Clear News (Dec. 2, 2019), https://perma.cc/ B4YJ- Trump Cancels Poland Trip to Focus on Storm Politics (July 16, 2017), https://perma.cc/ Z77C. in Last-Minute Move, Forbes (Aug. 30, 2019), D4HC–3ETE. 662. Saphora Smith and Reuters, Trump https://perma.cc/TQ83-6QKD. 724. Adam Goldman et al., Admin Cancels $300m Aid to Pakistan over Ter- 697. See Ukraine President Downplays Trump Barr Assigns U.S. ror Record, NBC News (Sept. 2, 2018), https:// Pressures in All-Day Media Marathon, supra Attorney in Connecticut to Review Origins of perma.cc/U32X-8N69. note 594. Russia Inquiry, N.Y. Times (May 13, 2019), 663. Impeachment Inquiry: Ms. Laura Cooper 698. Volker Interview Tr. at 78:5–9, 78:17–25; https://perma.cc/VS3E-DWT3. The Depart- and Mr. David Hale Before the H.R. Permanent see also Kent Interview Tr. at 202:14–16 (‘‘The ment of Justice has acknowledged that Mr. Select Comm. on Intelligence, 116th Cong. 22 time on a President’s schedule is always sub- Durham’s investigation is ‘‘broad in scope (Cooper-Hale Public Hearing). ject to competing priorities.’’). and multifaceted’’ and is ‘‘intended to illu- 664. Hill Dep. Tr. at 225:9–12. 699. Hill Dep. Tr. at 145:6–12. minate open questions regarding the activi- 665. Id. at 254:20–24, 352:14–20. 700. Sondland Public Hearing, supra note ties of U.S. and foreign intelligence services 666. Volker-Morrison Public Hearing, supra 614, at 74. as well as non-governmental organizations note 563, at 59–60. 701. Sondland Interview Tr. at 216:6–7. and individuals.’’ See Letter from Stephen 667. Morrison Dep. Tr. at 165:6–11. 702. Id. at 216:4–7. Boyd, Assistant Attorney General, Dep’t of 668. M. Sandy Dep. Tr. at 133:10–13 (Nov. 16, 703. Sondland Public Hearing, supra note Justice, to Jerrold Nadler, Chairman, House 2019). 614, at 36. Judiciary Comm. (June 10, 2019). 669. Morrison Dep. Tr. at 127:10–16. 704. Volker Interview Tr. at 36:1–9; 40:11–16. 725. See Katie Benner & Adam Goldman, 670. Hill Dep. Tr. at 76:6–8 (‘‘There was, you 705. Sondland Public Hearing, supra note Justice Dept. Is Said to Open Criminal Inquiry know, speculation in all analytical circles, 614, at 70. Into Its Own Russia Investigation, N.Y. Times both in Ukraine and outside, that he might 706. Id. (Oct. 24, 2019), https://perma.cc/ZR3G-SWHE. not be able to get a workable majority in the 707. H.R. Res. 755, 116th Cong. art. I. 726. Press Release, The White House, State- Ukrainian Parliament.’’). 708. HJC Report at 4–6. ment from the Press Secretary (May 23, 671. Morrison Dep. Tr. at 129:14–17. 709. See Hunter Biden ‘Was Paid $83,333 a 2019), https://perma.cc/S9LT-LPCM. 672. Id. at 129:4–8. Month by Ukrainian Gas Company to be a 727. See U.S. Dep’t of Justice, Criminal Re- 673. Id. at 128:18–20. ‘‘Ceremonial Figure’’, The Ukrainian Week source Manual § 274. 674. Id. at 128:20–24. (Oct. 20, 2019), https://perma.cc/7WBU-XHCJ; 728. See Treaty on Mutual Legal Assistance 675. High Anti-Corruption Court Starts Work Tobias Hoonhout, Hunter Biden Served as in Criminal Matters, U.S.-Ukr., July 22, 1998, in Ukraine (Video), Ukrainian Independent In- ‘Ceremonial Figure’ on Burisma Board for T.I.A.S. No. 12978. formation Agency of News (UNIAN) (Sept. 5, $80,000 Per Month, National Rev. (Oct. 18, 729. See U.S. Dep’t of Justice, Criminal Re- 2019), https://perma.cc/2XNC-F8YF. 2019), https://perma.cc/6RAH-J5GU; FLASH- source Manual § 278. 676. Morrison Dep. Tr. at 129:18–24. BACK, 2018: Joe Biden Brags at CFR Meeting 730. United States v. Curtiss-Wright Export 677. Letter from Sen. Ron Johnson, supra About Withholding Aid to Ukraine to Force Fir- Corp., 299 U.S. 304, 320 (1936). note 568, at 6. ing of Prosecutor, supra note 570; Biden Faces 731. H.R. Res. 755 art. I. 678. Letter from Sen. Rob Portman et al., Conflict of Interest Questions That Are Being 732. July 25 Call Mem., infra Appendix A, at to Mick Mulvaney, Director, Office of Man- Promoted by Trump and Allies, supra note 572. 3. agement & Budget, at 1 (Sept. 3, 2019). 710. See, e.g., Taylor-Kent Public Hearing, 733. Id. 679. Letter from Eliot L. Engel, Chairman, supra note 604, at 25:3–5 (Kent: ‘‘[I]n a brief- 734. Id. H.R. Comm. on Foreign Affairs, and Michael ing call with the national security staff of 735. Id. T. McCaul, Ranking Member, H.R. Comm. on the Office of the Vice President in February 736. Id. Foreign Affairs, to Mick Mulvaney, Director, of 2015, I raised my concern that Hunter 737. Amb. Valeriy Chaly, Ukraine’s Ambas- Office of Management & Budget, and Russell Biden’s status as a board member could cre- sador: Trump’s Comments Send Wrong Message Vought, Acting Director, Office of Manage- ate the perception of a conflict of interest.’’). to World, The Hill (Aug. 4, 2016), https:// ment & Budget, at 1—2 (Sept. 5, 2019). 711. Ukrainian Efforts to Sabotage Trump perma.cc/872A-Z28Y; Ukrainian Efforts to Sab- 680. Morrison Dep. Tr. at 209:10–210:4; see Backfire, supra note 565 (‘‘[O]fficials there [at otage Trump Backfire, supra note 565. also id. at 210:24 211:2. the Ukrainian embassy] became ‘helpful’ in 738. Letter from Sen. Robert Menendez, et 681. Id. at 225:12–16; see also Press Release, Chalupa’s efforts, she said, explaining that al. to Yuriy Lutsenko, Prosecutor General, Office of the President of Ukraine, she traded information and leads with them. Office of the Prosecutor General of Ukraine Volodymyr Zelensky Discussed Military- ‘If I asked a question, they would provide (May 4, 2019), https://perma.cc/9EH2–LDFG. Technical Assistance for Ukraine and Co- guidance, or if there was someone I needed to 739. Vindman Dep. Tr. at 320; see also operation in the Energy Sphere with the U.S. follow up with.’ ’’). Volker Interview Tr. at 106:9–11 (Burisma Vice President (Sept. 1, 2019), https:// 712. Id. ‘‘had a very bad reputation as a company for perma.cc/4KKX-E9QL (explaining that ‘‘[t]he 713. Natasha Bertrand & Kyle Cheney, ‘I’m corruption and money laundering’’); Kent U.S. Vice President raised the issue of re- On A Mission To Testify,’: Dem Ukraine Activ- Interview Tr. at 88:7 (‘‘Burisma had a poor forms and fight against corruption that will ist Eager for Impeachment Cameo, Politico reputation.’’). be carried out by the new government’’ and (Nov. 12, 2019), https://perma.cc/7RJR-6YQQ. 740. Oliver Bullough, The Money Machine: President Zelensky ‘‘noted that Ukraine was 714. N. Ohr. Interview Tr., 115th Cong., 113– How a High-Profile Corruption Investigation determined to transform and emphasized 15 (Oct. 19, 2018), https://perma.cc/E3YE- Fell Apart, The Guardian (Apr. 12, 2017), that over 70 draft laws had been registered QKYJ. https://perma.cc/XTF6–DGJ3.

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00065 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.061 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S352 CONGRESSIONAL RECORD — SENATE January 21, 2020 741. Kent Interview Tr. at 88:8–9. Anticorruption Message, Wall St. J. (Dec. 7, 763. As Vice President, Biden Said Ukraine 742. Press Release, Burisma Holdings, Hun- 2015), https://www.wsj.com/articles/ukrain- Should Increase Gas Production. Then His Son ter Biden Joins the Team of Burisma Holdings ians-see-conflict-in-bidens-anticorruption- Got a Job with a Ukrainian Gas Company, (May 12, 2014), https://perma.cc/U9YS-JL5G; message–1449523458 (‘‘[A]ctivists here say supra note 573 (‘‘In an email interview with Adam Entous, Will Hunter Biden Jeopardize that [Joe Biden’s anti-corruption] message is The Post, Shokin [the fired prosecutor] said His Father’s Campaign?, The New Yorker being undermined as his son receives money he believes his ouster was because of his in- (July 1, 2019), https://perma.cc/UJ8G-GRWT from a former Ukrainian official who is terest in [Burisma]. . . . Had he remained (‘‘Hunter joined . . . the Burisma board in being investigated for graft.’’). in his post, Shokin said, he would have ques- April, 2014.’’). 752. Hunter Biden’s New Job at a Ukrainian tioned Hunter Biden.’’). 743. Susan Crabtree, Joe Biden Emerges as Gas Company Is a Problem for U.S. Soft Power, 764. July 25 Call Mem., infra Appendix A, at Obama’s Trusty Sidekick, Wash. Examiner supra note 571. 4. (Apr. 25, 2014), https://perma.cc/KVQ6–V2NF. 753. Will Hunter Biden Jeopardize His Fa- 765. Id. (emphasis added). 744. Approved Judgement of the Central ther’s Campaign?, supra note 742. 766. Id. Criminal Court, Serious Fraud Office v. 754. Kent Interview Tr. at 227:1–8 (‘‘And 767. See, e.g., Louis Nelson, Sen. Boxer Calls Mykola Zlochevskyi, 1, 7 (Jan. 21, 2015), when I was on a call with somebody from the for Probe Into Trump Model Management, Po- https://www.justsecurity.org/wp-content/ Vice President’s staff and I cannot recall litico (Sept. 7, 2016), https://perma.cc/8827– uploads/2019/09/Zlochevsky-SFO-v-MZ-Final- who it was . . . I raised my concerns that CT24; Josh Rogin, Democrats Ask the FBI to JudgmentRevised.doc. I had heard that Hunter Biden was on the Investigate Trump Advisers’ Russia Ties, Wash. 745. Biden Faces Conflict of Interest Ques- board of a company owned by somebody that Post (Aug. 30, 2016), https://perma.cc/7HAE- tions That Are Being Promoted by Trump and the U.S. Government had spent money try- Y2NN. Allies, supra note 572. ing to get tens of millions of dollars back 768. HPSCI Report at 29–30, 38. 746. See The Money Machine: How a High- and that could create the perception of a 769. See Letter from Devin Nunes, Ranking Profile Corruption Investigation Fell Apart, conflict of interest.’’). Member, H.R. Permanent Select Comm. on supra note 740 (‘‘The White House insisted 755. Impeachment Inquiry: Amb. Marie Intelligence, to Adam Schiff, Chairman, the position was a private matter for Hunter ‘‘Masha’’ Yovanovitch Before the H.R. Perma- House Permanent Select Comm. on Intel- Biden, and unrelated to his father’s job, but nent Select Comm. on Intelligence, 116th Cong. ligence (Nov. 9, 2019); Letter from Doug Col- 135–36 (Nov. 15, 2019) (Yovanovitch Public that is not how anyone I spoke to in Ukraine lins, Ranking Member, H.R. Comm. on Judi- Hearing) (‘‘I think that it could raise the ap- interpreted it. Hunter Biden is an ciary, to Jerrold Nadler, Chairman, H.R. pearance of a conflict of interest.’’); Taylor- undistinguished corporate lawyer, with no Comm. on Judiciary (Dec. 6, 2019). Kent Public Hearing, supra note 604, at 25, previous Ukraine experience.’’); Will Hunter 770. See, e.g., Madeline Conway, Schiff: 94–95 (Kent testifying that ‘‘I raised my con- Biden Jeopardize His Father’s Campaign?, There is Now ‘More Than Circumstantial Evi- cern that Hunter Biden’s status as a board supra note 742. dence’ of Trump-Russia Collusion, Politico member could create the perception of a con- 747. Victoria Thompson, et al., Exclusive: (Mar. 22, 2017), https://perma.cc/U9R4–MQVS. flict of interest . . . And my concern was ‘I’m Here’: Hunter Biden Hits Back at Trump 771. ‘‘ ‘Duplicity’ is the joining of two or that there was the possibility of a perception Taunt in Exclusive ABC News Interview, ABC more distinct and separate offenses in a sin- of a conflict of interest.’’); Williams- News (Oct. 15, 2019), https://abcnews.go.com/ gle count’’; ‘‘ ‘[m]ultiplicity’ is charging a Vindman Public Hearing, supra note 589, at Politics/exclusive-hiding-plain-sight-hunter- single offense in several counts.’’ 1A Charles 129 (Vindman and Williams agreeing ‘‘that bidendefends-foreign/story?id=66275416. Alan Wright et al., Federal Practice and Pro- Hunter Biden, on the board of Burisma, has 748. Biden Faces Conflict of Interest Ques- cedure § 142 (4th ed. 2019); see, e.g., United the potential for the appearance of a conflict tions That Are Being Promoted by Trump and States v. Root, 585 F.3d 145, 150 (3d Cir. 2009); of interest’’); Sondland Public Hearing, supra Allies, supra note 572; Polina Ivanova et al., United States v. Chrane, 529 F.2d 1236, 1237 n.3 What Hunter Biden Did on the Board of note 614, at 171 (‘‘Well, clearly it’s an appearance of a conflict.’’); Hill-Holmes Public (5th Cir. 1976). Ukrainian Energy Company Burisma, Reuters 772. U.S. Const. art. I, § 3, cl. 6. Hearing, supra note 636, at 89:20–90:3 (Hill af- (Oct. 18, 2019), https://perma.cc/7PL4–JMPY. 773. President Clinton was charged in one firming that ‘‘there are perceived conflict of Compare Hunter Biden Served as ‘Ceremonial article of providing perjurious, false and mis- interest troubles when the child of a govern- Figure’ on Burisma Board for $80,000 Per leading testimony on any ‘‘one or more’’ of ment official is involved with something Month, supra note 709 (reporting Hunter four topics and in another article of obstruc- that that government official has an official Biden’s monthly compensation to be $83,333 tion through ‘‘one or more’’ of seven discrete monthly, or nearly $1 million per year), with policy role in’’); Taylor Dep. Tr. at 90:3–5 (conceding that a reasonable person could ‘‘acts’’ that involved different behavior in 2019 Proxy Statement, ConocoPhillips, at 30 say there are perceived conflicts of interest different months with different persons. H.R. (Apr. 1, 2019), https://perma.cc/4GP8–9ZWV in Hunter Biden’s position on Burisma’s Res. 611, 105th Cong. (Dec. 19, 1998); see Pro- (disclosing cash and stock awards provided board). ceedings of the U.S. Senate in the Impeachment to each active director with total compensa- 756. Letter from Lindsey O. Graham, Chair- Trial of President William Jefferson Clinton, tion for the year ranging from $33,125 to man, S. Comm. on Judiciary, to Michael R. 106th Cong., vol. I at 472–75 (1999) (Clinton $377,779). Pompeo, Secretary of State, at 1 (Nov. 21, Senate Trial) (Trial Mem. of President Clin- 749. Vindman Dep. Tr. at 334–35 (explaining 2019); see also Interfax-Ukraine, Court Seizes ton). that ‘‘it doesn’t look like [Hunter Biden] Property of Ex-minister Zlochevsky in Ukraine 774. Id., vol. IV at 2745 (statement of Sen. was’’ qualified); Volker Interview Tr. at 09 PGO, Kyiv Post (Feb. 4, 2016), https:// Carl Levin). 106:9–12 (speculating that Burisma hired perma.cc/P8RA-TKR6. 775. Id. Biden because of his connection to his politi- 757. John Solomon, The Ukraine Scandal 776. Id. at 2655 (statement of Sen. Charles cally connected father); see also Paul Sonne Timeline Democrats and Their Media Allies Robb). et al., The Gas Tycoon and the Vice President’s Don’t Want America to See, John Solomon Re- 777. Id. Son: The Story of Hunter Biden’s Foray into ports (Nov. 20, 2019), https://perma.cc/FC8V- 778. Id., vol. II at 1875–76 (statement of Sen. Ukraine, Wash. Post (Sept. 28, 2019), https:// P2AG. Chris Dodd). perma.cc/A8VJ-YUY4 (the Executive Direc- 758. Foreign Affairs Issue Launch with 779. Proceedings in the Trial of Andrew John- tor of Ukraine’s Anti-Corruption Action Cen- Former Vice President Joe Biden, Council on son, President of the United States, Before the ter asserting that Burisma added ‘‘people Foreign Relations (Jan. 23, 2018), https:// U.S. Senate, on Articles of Impeachment, 40th with these fancy names’’ to its board in an www.cfr.org/event/foreign-affairs-issue- Cong. 6 (1868). effort to ‘‘whitewash[]’’ the firm’s reputa- launch-former-vice-president-joe-biden 780. Id. at 1073–75 (statement of Sen. John tion). (‘‘[Y]ou’re not getting the billion . . . I Henderson). 750. The Gas Tycoon and the Vice President’s looked at them and said: I’m leaving in six 781. Id. at 912 (statement of Sen. Garrett Son: The Story of Hunter Biden’s Foray into hours. If the prosecutor is not fired, you’re Davis). Ukraine, supra note 749. not getting the money.’’). 782. Proceedings of the U.S. Senate in the Im- 751. The Money Machine: How a High-Profile 759. Kent Interview Tr. at 94:21–24. peachment Trial of Walter L. Nixon, Jr., a Corruption Investigation Fell Apart, supra note 760. Andrew E. Kramer, Ukraine Ousts Judge of the U.S. District Court for the South- 740 (‘‘The credibility of the United States Viktor Shokin, Top Prosecutor, and Political ern District of Mississippi, 101st Cong., 1st was not helped by the news that . . . Hun- Stability Hangs in the Balance, N.Y. Times Sess. 464 (1989) (Judge Nixon Senate Trial) ter had been on the board of directors of (Mar. 29, 2016), https://perma.cc/J2XH-JUWH. (statement of Sen. Frank Murkowski); H.R. Burisma’’); The Editorial Board, Joe Biden 761. The Money Machine: How a High-Profile Rep. No. 101–36, 101st Cong. 656 (1989). Lectures Ukraine, N.Y. Times (Dec. 11, 2015), Corruption Investigation Fell Apart, supra note 783. Judge Nixon Senate Trial, supra note 782, https://perma.cc/P9JH-YEBP (‘‘Sadly, the 740. at 449 (statement of Sen. Herbert Kohl). The credibility of Mr. Biden’s message may be 762. Attorney John Buretta: In the Case of Senate similarly refused to convict Judge undermined by the association of his son Burisma and Zlochevskiy I Met with Prosecutor Louderback on an omnibus article. In that with a Ukrainian natural-gas company, General Yury Lutsenko, Burisma (Feb. 1, 2017), case, Senator Josiah Bailey asserted that the Burisma Holdings, which is owned by a https://burisma-group.com/eng/media/attor- article ‘‘ought not to have been considered’’ former government official suspected of cor- ney-john-buretta-in-the-case-of-burisma-and- at all. Proceedings of the U.S. Senate in the rupt practices.’’); Paul Sonne and Laura zlochevskiy-i-met-with-prosecutor-general- Trial of Impeachment of Harold Louderback, Mills, Ukrainians See Conflict in Biden’s yury-lutsenko/. U.S. District Judge for the Northern District of

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00066 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.062 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S353 California, 73d Cong., 839–40 (1933) (statement more often and we can talk over the phone President Zelensky: Yes it is very impor- of Sen. Josiah Bailey). more often. tant for me and everything that you just Although the Senate has convicted a few The President: [laughter] That’s a very mentioned earlier. For me as a President, it lower court judges on duplicitous articles, good idea. I think your country is very is very important and we are open for any fu- those convictions provide no precedent to happy about that. ture cooperation. We are ready to open a new follow here. First, no duplicity objection ap- President Zelensky: Well yes, to tell you page on cooperation in relations between the pears to have been timely raised in those the truth, we are trying to work hard be- United States and Ukraine. For that pur- cases before the votes on conviction, and cause we wanted to drain the swamp here in pose, I just recalled our ambassador from thus the Senate never squarely faced and de- our country. We brought in many many new United States and he will be replaced by a cided the issue. See, e.g., 80 Cong. Rec. 5606 people. Not the old politicians, not the typ- very competent and very experienced ambas- (1936) (parliamentary inquiry based on du- ical politicians, because we want to have a sador who will work hard on making sure plicity raised only by a Senator after Judge new format and a new type of government. that our two nations are getting closer. I You are a great teacher for us and in that. Ritter was convicted). would also like and hope to see him having The President: Well it’s very nice of you to Second, far from being examples to follow, your trust and your confidence and have per- say that. I will say that we do a lot for sonal relatives with you so we can cooperate these judges’ convictions only illustrate the Ukraine. We spend a lot of effort and a lot of constitutional danger of umbrella charges, even more so. I will personally tell you that time. Much more than the European coun- one of my assistants spoke with Mr. Giuliani which allow the form of the articles chosen tries are doing and they should be helping by the House, rather than actual guilt or in- just recently and we are hoping very much you more than they are. Germany does al- that Mr. Giuliani will be able to travel to nocence, to determine conviction. Judge Rit- most nothing for you. All they do is talk and Ukraine and we will meet once he comes to ter, for example, was charged with discrete I think it’s something that you should really Ukraine. I just wanted to assure you once impeachable acts in separate articles, with a ask them about. When I was speaking to An- again that you have nobody but friends catch-all article combining all of the prior gela Merkel she talks Ukraine, but she around us. I will make sure that I surround articles tacked on. He was acquitted on each doesn’t do anything. A lot of the European myself with he best and most experienced separate article, but convicted on the catch- countries are the same way so I think it’s people. I also wanted to tell you that we are all article that amounted to a charge of something you want to look at but the friends. We are great friends and you Mr. ‘‘general misbehavior.’’ Id. at 5202–06. United States has been very very good to President have friends in our country so we Third, that the Senate may have convicted Ukraine. I wouldn’t say that it’s reciprocal can continue our strategic partnership. I a few lower court judges on duplicitous arti- necessarily because things are happening also plan to surround myself with great peo- cles is hardly precedent to be followed in a that are not good but the United States has ple and in addition to that investigation, I presidential impeachment. See supra Stand- been very very good to Ukrane. guarantee as the President of Ukraine that ards Part B.3. President Zelensky: Yes you are absolutely all the investigations will be done openly 784. H.R. Res. 755 art. I. right. Not only 100%, but actually 1000% and and candidly. That I can assure you. 785. H.R. Res. 755 art. II. I can tell you the following; I did talk to An- The President: Good because I heard you 786. Rules of Procedure and Practice in the gela Merkel and I did meet with her. I also had a prosecutor who was very good and he Senate when Sitting on Impeachment Trials, met and talked with Macron and I told them was shut down and that’s really unfair. A lot Rule XXIII (‘‘An article of impeachment that they are not doing quite as much as of people are talking about that, the way shall not be divisible for the purpose of vot- they need to be doing on the issues with the they shut your very good prosecutor down ing thereon at any time during the trial.’’). sanctions. They are not enforcing the sanc- and you had some very bad people involved. The committee report accompanying this tions. They are not working as much as they Mr. Giuliani is a highly respected man. He rule made clear that the ‘‘more familiar’’ should work for Ukraine. It turns out that was the mayor of New York City, a great practice was to ‘‘embod[y] an impeachable even though logically, the European Union mayor, and I would like him to call you. I offense in an individual article’’ rather than should be our biggest partner but technically will ask him to call you along with the At- relying on broad, potentially duplicitous ar- the United States is a much bigger partner torney General. Rudy very much knows ticles. Amending the Rules of Procedure and than the European Union and I’m very grate- what’s happening and he is a very capable Practice in the Senate When Sitting on Im- ful to you for that because the United States guy. If you could speak to him that would be peachment Trials, Report of the Comm. on is doing quite a lot for Ukraine. Much more great. The former ambassador from the Rules and Admin., S. Rep. No. 99–401, 99th than the European Union especially when we United States, the woman, was bad news and Cong., 8 (1986). are talking about sanctions against the Rus- the people she was dealing with in the 787. The Federalist No. 65, at 400 (Alex- sian Federation. I would also like to thank Ukraine were bad news so I just want to let ander Hamilton) (Clinton Rossiter ed., 1961). you for your great support in the area of de- you know that. The other thing. There’s a APPENDIX A fense. We are ready to continue to cooperate lot of talk about Biden’s son, that Biden for the next steps specifically we are almost stopped the prosecution and a lot of people MEMORANDUM OF JULY 25, 2019 TELE- ready to buy more Javelins from the United want to find out about that so whatever you PHONE CONVERSATION BETWEEN States for defense purposes. can do with the Attorney General would be PRESIDENT TRUMP AND PRESIDENT CAUTION: A Memorandum of a Telephone great. Biden went around bragging that he ZELENSKYY Conversation (TELCON) is not a verbatim stopped the prosecution so if you can look MEMORANDUM OF TELEPHONE CONVERSATION transcript of a discussion. The text in this into it. . . It sounds horrible to me. Subject: Telephone Conversation with Presi- document records the notes and recollections President Zelensky: I wanted to tell you dent Zelensky of Ukraine. of Situation Room Duty Officers and NSC about the prosecutor. First of all I under- Participants: President Zelensky of Ukraine. policy staff assigned to listen and memori- stand and I’m knowledgeable about the situ- Notetakers: The White House Situation alize the conversation in written form as the ation. Since we have won the absolute ma- Room. conversation takes place. A number of fac- jority in our Parliament, the next prosecutor Date, Time and Place: July 25, 2019, 9:03–9:33 tors can affect the accuracy of the record, in- general will be 100% my person, my can- a.m. EDT, Residence. cluding poor telecommunications connec- didate, who will be approved by the par- tions and variations in accent and/or inter- liament and will start as a new prosecutor in The President: Congratulations on a great pretation. The word ‘‘inaudible’’ is used to September. He or she will look into the situ- victory. We all watched from the United indicate portions of a conversation that the ation, specifically to the company that you States and you did a terrific job. The way notetaker was unable to hear. mentioned in this issue. The issue of the in- you came from behind, somebody who wasn’t The President: I would like you to do us a vestigation of the case is actually the issue given much of a chance, and you ended up favor though because our country has been of making sure to restore the honesty so we winning easily. It’s a fantastic achievement. through a lot and Ukraine knows a lot about will take care of that and will work on the Congratulations. it. I would like you to find out what hap- investigation of the case. On top of that, I President Zelensky : You are absolutely pened with this whole situation with would kindly ask you if you have any addi- right Mr . President. We did win big and we Ukraine, they say Crowdstrike. . . I guess tional information that you can provide to worked hard for this. We worked a lot but I you have one of your wealthy people. . . The us, it would be very helpful for the investiga- would like to confess to you that I had an op- server, they say Ukraine has it. There are a tion to make sure that we administer justice portunity to learn from you. We used quite a lot of things that went on, the whole situa- in our country with regard to the Ambas- few of your skills and knowledge and were tion. I think you’re surrounding yourself sador to the United States from Ukraine as able to use it as an example for our elections with some of the same people. I would like to far as I recall her name was Ivanovich. It and yes it is true that these were unique have the Attorney General call you or your was great that you were the first one who elections. We were in a unique situation that people and I would like you to get to the bot- told me that she was a bad ambassador be- we were able to achieve a unique success. I’m tom of it As you saw yesterday, that whole cause I agree with you 100%. Her attitude to- able to tell you the following; the first time, nonsense ended with a very poor perform- wards me was far from the best as she ad- you called me to congratulate me when I ance by a man named Robert Mueller, an in- mired the previous President and she was on won my presidential election, and the second competent performance, but they say a lot of his side. She would not accept me as a new time you are now calling me when my party it started with Ukraine. Whatever you can President well enough. won the parliamentary election. I think I do, it’s very important that you do it if The President: Well, she’s going to go should run more often so you can call me that’s possible. through some things. I will have Mr.

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00067 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.062 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S354 CONGRESSIONAL RECORD — SENATE January 21, 2020 Giuliani give you a call and I am also going 7. Subpoena from Adam B. Schiff to Igor islative oversight, but ‘‘[p]ursuant to the to have Attorney General Barr call and we Fruman (Oct. 10, 2019) House of Representatives’ impeachment in- will get to the bottom of it. I’m sure you will 8. Subpoena from Adam B. Schiff to Lev quiry.’’ 2 In the following days, the commit- figure it out. I heard the prosecutor was Parnas (Oct. 10, 2019) tees issued subpoenas to the Acting White treated very badly and he was a very fair 9. Subpoena from Adam B. Schiff to James House Chief of Staff, the Secretary of De- prosecutor so good luck with everything. Richard Perry, Secretary of Energy (Oct. 10, fense, the Secretary of Energy, and several Your economy is going to get better and bet- 2019) others within the Executive Branch. ter I predict. You have a lot of assets. It’s a 10. Subpoena from Adam B. Schiff to Marie Upon the issuance of these subpoenas, you great country. I have many Ukrainian Yovanovitch, former U.S. Ambassador to asked whether these committees could com- friends, their incredible people. Ukraine (Oct. 11, 2019) pel the production of documents and testi- President Zelensky: I would like to tell 11. Subpoena from Adam B. Schiff to Fiona mony in furtherance of an asserted impeach- you that I also have quite a few Ukrainian Hill, former Senior Director for Russian and ment inquiry. We advised that the commit- friends that live in the United States. Actu- European Affairs, National Security Council tees lacked such authority because, at the ally last time I traveled to the United (Oct. 14, 2019) time the subpoenas were issued, the House States, I stayed in New York near Central 12. Subpoena from Adam B. Schiff to had not adopted any resolution authorizing the committees to conduct an impeachment Park and I stayed at the Trump Tower. I will George Kent, Deputy Assistant Secretary of inquiry. The Constitution vests the ‘‘sole talk to them and I hope to see them again in State for European and Eurasian Affairs Power of Impeachment’’ in the House of Rep- the future. I also wanted to thank you for (Oct. 15, 2019) your invitation to visit the United States, resentatives. U.S. Const. art. I, § 2, cl. 5. For 13. Subpoena from Adam B. Schiff to Dr. specifically Washington DC. On the other precisely that reason, the House itself must Charles Kupperman, former Deputy National hand, I also want to ensure you that we will authorize an impeachment inquiry, as it has Security Advisor (Oct. 21, 2019) be very serious about the case and will work done in virtually every prior impeachment 14. Subpoena from Adam B. Schiff to Wil- on the investigation. As to the economy, investigation in our Nation’s history, includ- liam B. Taylor, Jr., Acting U.S. Ambassador there is much potential for our two countries ing every one involving a President. A con- to Ukraine (Oct. 21, 2019) and one of the issues that is very important gressional committee’s ‘‘right to exact testi- 15. Subpoena from Adam B. Schiff to Laura for Ukraine is energy independence. I believe mony and to call for the production of docu- K. Cooper, Deputy Assistant Secretary of De- we can be very successful and cooperating on ments’’ is limited by the ‘‘controlling char- fense for Russia (Oct. 23, 2019) energy independence with United States. We ter’’ the committee has received from the are already working on cooperation. We are 16. Subpoena from Adam B. Schiff to Mi- House. United States v. Rumely, 345 U.S. 41, 44 buying American oil but I am very hopeful chael Duffey, Associate Director of National (1953). Yet the House, by its rules, has au- for a future meeting. We will have more time Security Programs, OMB (Oct. 24, 2019) thorized its committees to issue subpoenas and more opportunities to discuss these op- 17. Subpoena from Adam B. Schiff to Rus- only for matters within their legislative juris- portunities and get to know each other bet- sell T. Vought, Acting Director of OMB (Oct. diction. Accordingly, no committee may un- ter. I would like to thank you very much for 24, 2019) dertake the momentous move from legisla- your support 18. Subpoena from Peter DeFazio to Emily tive oversight to impeachment without a The President: Good. Well, thank you very W. Murphy, Administrator of General Serv- delegation by the full House of such author- much and I appreciate that. I will tell Rudy ices Administration (Oct. 24, 2019) ity. and Attorney General Barr to call. Thank 19. Subpoena from Adam B. Schiff to We are not the first to reach this conclu- you. Whenever you would like to come to the Ulrich Brechbuhl, Counselor to Secretary of sion. This was the position of the House in White House, feel free to call. Give us a date State (Oct. 25, 2019) the impeachments of Presidents Nixon and and we’ll work that out. I look forward to 20. Subpoena from Adam B. Schiff to Philip Clinton. In the case of President Nixon, fol- seeing you. Reeker, Acting Assistant Secretary of State lowing a preliminary inquiry, the House President Zelensky: Thank you very much. of European and Eurasian Affairs (Oct. 26, adopted a formal resolution as a ‘‘necessary I would be very happy to come and would be 2019) step’’ to confer the ‘‘investigative powers’’ of happy to meet with you personally and get 21. Subpoena from Adam B. Schiff to Alex- the House ‘‘to their full extent’’ upon the Ju- to know you better. I am looking forward to ander S. Vindman, Director for European Af- diciary Committee. 120 Cong. Rec. 2350–51 our meeting and I also would like to invite fairs, National Security Council (Oct. 29, (1974) (statement of Rep. Rodino); see H.R. you to visit Ukraine and come to the city of 2019) Res. 803, 93d Cong. (1974). As the House Par- Kyiv which is a beautiful city. We have a 22. Subpoena from Adam B. Schiff to Cath- liamentarian explained, it had been ‘‘consid- beautiful country which would welcome you. erine Croft, Special Adviser for Ukraine Ne- ered necessary for the House to specifically On the other hand, I believe that on Sep- gotiations, Department of State (Oct. 30, vest the Committee on the Judiciary with tember 1 we will be in Poland and we can 2019) the investigatory and subpena power to con- meet in Poland hopefully. After that, it 23. Subpoena from Adam B. Schiff to Chris- duct the impeachment investigation.’’ 3 might be a very good idea for you to travel topher Anderson, former Special Advisor for Lewis Deschler, Deschler’s Precedents of the to Ukraine. We can either take my plane and Ukraine Negotiations, Department of State United States House of Representatives ch. 14, go to Ukraine or we can take your plane, (Oct. 30, 2019) § 5.2, at 2172 (1994) (Parliamentarian’s Note).3 The House followed the same course in the which is probably much better than mine. APPENDIX C: The President: Okay, we can work that impeachment of President Clinton. After re- out. I look forward to seeing you in Wash- OFFICE OF LEGAL COUNSEL, MEMO- viewing the Independent Counsel’s referral, ington and maybe in Poland because I think RANDUM OPINION RE: HOUSE COMMIT- the Judiciary Committee ‘‘decided that it we are going to be there at that time. TEES’ AUTHORITY TO INVESTIGATE must receive authorization from the full President Zelensky: Thank you very much FOR IMPEACHMENT (JAN. 19, 2019) House before proceeding on any further Mr. President. U.S. DEPARTMENT OF JUSTICE, course of action.’’ H.R. Rep. No. 105–795, at 24 The President: Congratulations on a fan- OFFICE OF LEGAL COUNSEL, (1998). The House again adopted a resolution tastic job you’ve done. The whole world was Washington, DC, January 19, 2020. authorizing the committee to issue compul- watching. I’m not sure it was so much of an MEMORANDUM FOR PAT A. CIPOLLONE sory process in support of an impeachment upset but congratulations. COUNSEL TO THE PRESIDENT investigation. See H.R. Res. 581, 105th Cong. President Zelensky: Thank you Mr. Presi- (1998). As Representative John Conyers sum- dent bye-bye. Re: House Committees’ Authority to Investigate marized in 2016: ‘‘According to parliamentar- APPENDIX B: for Impeachment ians of the House past and present, the im- On September 24, 2019, Speaker of the UNAUTHORIZED SUBPOENAS PURPORT- peachment process does not begin until the House Nancy Pelosi ‘‘announc[ed]’’ at a press EDLY ISSUED PURSUANT TO THE House actually votes to authorize [a] Com- conference that ‘‘the House of Representa- HOUSE’S IMPEACHMENT POWER BE- mittee to investigate the charges.’’ 4 tives is moving forward with an official im- FORE HOUSE RESOLUTION 660 In marked contrast with these historical peachment inquiry’’ into the President’s ac- precedents, in the weeks after the Speaker’s 1. Subpoena from Eliot L. Engel to Michael tions and that she was ‘‘directing . . . six announcement, House committees issued R. Pompeo, Secretary of State (Sept. 27, 2019) Committees to proceed with’’ several pre- 2. Subpoena from Adam B. Schiff to Rudy subpoenas without any House vote author- viously pending ‘‘investigations under that izing them to exercise the House’s authority Giuliani (Nov. 30, 2019) 1 3. Subpoena from Elijah E. Cummings to umbrella of impeachment inquiry.’’ Shortly under the Impeachment Clause. The three John Michael Mulvaney, Acting White House thereafter, the House Committee on Foreign committees justified the subpoenas based Chief of Staff (Oct. 4, 2019) Affairs issued a subpoena directing the Sec- upon the Rules of the House, which authorize 4. Subpoena from Adam B. Schiff to Mark retary of State to produce a series of docu- subpoenas for matters within a committee’s T. Esper, Secretary of Defense (Oct. 7, 2019) ments related to the recent conduct of diplo- jurisdiction. But the Rules assign only ‘‘leg- 5. Subpoena from Adam B. Schiff to Rus- macy between the United States and islative jurisdiction[ ]’’ and ‘‘oversight re- sell T. Vought, Acting Director of OMB (Oct. Ukraine. See Subpoena of the Committee on sponsibilities’’ to the committees. H.R. 7, 2019) Foreign Affairs (Sept. 27, 2019). In an accom- Rules, 116th Cong., Rule X, cl. 1 (Jan. 11, 6. Subpoena from Adam B. Schiff to Gor- panying letter, three committee chairmen 2019) (‘‘Committees and their legislative ju- don Sondland, U.S. Ambassador to the Euro- stated that their committees jointly sought risdictions’’), cl. 2 (‘‘General oversight re- pean Union (Oct. 8, 2019) these documents, not in connection with leg- sponsibilities’’); see also H.R. Rule X, cls.

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00068 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.092 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S355 3(m), 11. The House’s legislative power is dis- for Pat Cipollone, White House Counsel, from with the Inspector General of the Intel- tinct from its impeachment power. Compare Jerrold Nadler, Chairman, Committee on the ligence Community. The complaint, cast in U.S. Const. art. I. § 1, with id. art. I, § 2, cl. 5. Judiciary, U.S. House of Representatives at the form of an unsigned letter to the con- Although committees had that same delega- 3–6 (May 16, 2019) (describing the ‘‘legislative gressional intelligence committees, alleged tion during the Clinton impeachment and a purpose of the Committee’s investigation’’ that, in a July 25, 2019 telephone call, the materially similar one during the Nixon im- (capitalization altered)). President sought to pressure Ukrainian peachment, the House determined on both Over time, the Judiciary Committee ex- President Volodymyr Zelensky to inves- occasions that the Judiciary Committee re- panded the description of its investigation to tigate the prior activities of one of the Presi- quired a resolution to investigate. Speaker claim that it was considering impeachment. dent’s potential political rivals. See Letter Pelosi purported to direct the committees to The committee first mentioned impeach- for Richard Burr, Chairman, Select Com- conduct an ‘‘official impeachment inquiry,’’ ment in a May 8, 2019 report recommending mittee on Intelligence, U.S. Senate, and but the House Rules do not give the Speaker that the Attorney General be held in con- Adam Schiff, Chairman, Permanent Select any authority to delegate investigative tempt of Congress. In a section entitled ‘‘Au- Committee on Intelligence, U.S. House of power. The committees thus had no delega- thority and Legislative Purpose,’’ the com- Representatives at 2–3 (Aug. 12, 2019). After tion authorizing them to issue subpoenas mittee stated that one purpose of the inquiry the Inspector General reported the existence pursuant to the House’s impeachment power. was to determine ‘‘whether to approve arti- of the complaint to the intelligence commit- In the face of objections to the validity of cles of impeachment with respect to the tees, the President declassified the official the committee subpoenas that were ex- President or any other Administration offi- record of the July 25 telephone call and the pressed by the Administration, by ranking cial.’’ H.R. Rep. No. 116–105, at 12, 13 (2019).7 complaint, and they were publicly released minority members in the House, and by The committee formally claimed to be in- on September 25 and 26, respectively. many Senators, among others, on October 31, vestigating impeachment when it petitioned On September 24, the day before the re- 2019, the House adopted Resolution 660, the U.S. District Court for the District of Co- lease of the call record, Speaker Pelosi which ‘‘directed’’ six committees ‘‘to con- lumbia to release grand-jury information re- ‘‘announc[ed]’’ that ‘‘the House of Represent- tinue their ongoing investigations’’ as part lated to the Special Counsel’s investigation. atives is moving forward with an official im- of the ‘‘existing House of Representatives in- See Application at 1–2, In re Application of the peachment inquiry’’ and that she was , quiry into whether sufficient grounds exist’’ Comm. on the Judiciary, U.S. House of Reps. ‘‘direct[ing] . . . six [c]ommittees to proceed No. 19–gj–48 (D.D.C. July 26, 2019); see also to impeach President Trump. H.R. Res. 660, with their investigations under that um- Memorandum for Members of the Committee 116th Cong. § 1 (2019). Resolution 660’s direc- brella of impeachment inquiry.’’ Pelosi Press on the Judiciary from Jerrold Nadler, Chair- tion, however, was entirely prospective. The Release, supra note 1. In an October 8, 2019 man, Re: Lessons from the Mueller Report, Part resolution did not purport to ratify any pre- court hearing, the House’s General Counsel III: ‘‘Constitutional Processes for Addressing viously issued subpoenas or even make any invoked the Speaker’s announcement as pur- Presidential Misconduct’’ at 3 (July 11, 2019) mention of them. Accordingly, the pre-Octo- portedly conclusive proof that the House had (advising that the Committee would seek ber 31 subpoenas, which had not been author- opened an impeachment inquiry. Tr. of Mot. documents and testimony ‘‘to determine ized by the House, continued to lack compul- Hrg. at 23, In re Application of the Comm. on whether the Committee should recommend sory force.5 the Judiciary (‘‘We are in an impeachment in- articles of impeachment against the Presi- quiry, an impeachment investigation, a for- I. dent or any other Article I remedies, and if mal impeachment investigation because the Since the start of the 116th Congress, some so, in what form’’).8 The committee advanced House says it is. The speaker of the House members of Congress have proposed that the the same contention when asking the dis- has specifically said that it is.’’). House investigate and impeach President trict court to compel testimony before the On September 27, Chairman Engel of the Trump. On January 3, 2019, the first day of committee by former White House Counsel Foreign Affairs Committee issued a sub- the new Congress, Representative Brad Sher- Donald McGahn. See Compl. for Declaratory poena to Secretary of State Pompeo man introduced a resolution to impeach and Injunctive Relief 1, Comm. on the Judici- ‘‘[p]ursuant to the House of Representatives’ ‘‘Donald John Trump, President of the ary, U.S. House of Reps. v. McGahn, No. 19–cv– impeachment inquiry.’’ Three Chairmen’s United States, for high crimes and mis- 2379 (D.D.C. Aug. 7, 2019) (contending that Letter, supra note 2, at 1. That subpoena was demeanors.’’ H.R. Res. 13, 116th Cong. (2019). the Judiciary Committee was ‘‘now deter- the first to rely on the newly proclaimed The Sherman resolution called for impeach- mining whether to recommend articles of ‘‘impeachment inquiry.’’ A number of sub- ment based upon the President’s firing of the impeachment against the President based on poenas followed, each of which was accom- Director of the Federal Bureau of Investiga- the obstructive conduct described by the panied by a letter signed by the chairmen of tion, James Comey. See id. Consistent with Special Counsel’’). three committees (Foreign Affairs, Oversight settled practice, the resolution was referred In connection with this litigation, Chair- and Reform, and the Permanent Select Com- to the Judiciary Committee. See H.R. Doc. man Nadler described the committee as con- mittee on Intelligence (‘‘HPSCI’’)). Although No. 115–177, Jefferson’s Manual § 605, at 324 ducting ‘‘formal impeachment proceedings.’’ the September 27 letter mentioned only the (2019). David Priess & Margaret Taylor, What if the ‘‘impeachment inquiry’’ as a basis for the ac- The Judiciary Committee did not act on House Held Impeachment Proceedings and No- companying subpoena, subsequent letters the Sherman resolution, but it soon began an body Noticed?, Lawfare (Aug. 12, 2019), claimed that other subpoenas were issued oversight investigation into related subjects www.lawfareblog.com/what-if-house-held-im- both ‘‘[p]ursuant to the House of Representa- that were also the focus of a Department of peachment-proceedings-and-nobody-noticed tives’ impeachment inquiry’’ and ‘‘in exer- Justice investigation by Special Counsel (chronicling the evolution in Chairman cise of’’ the committees’ ‘‘oversight and leg- Robert S. Mueller, III. On March 4, 2019, the Nadler’s descriptions of the investigation). islative jurisdiction.’’ 9 committee served document requests on the Those assertions coincided with media re- Following service of these subpoenas, you White House and 80 other agencies, entities, ports that Chairman Nadler had privately and other officials within the Executive and individuals, ‘‘unveil[ing] an investiga- asked Speaker Pelosi to support the opening Branch requested our advice with respect to tion . . . into the alleged obstruction of jus- of an impeachment inquiry. See, e.g., Andrew the obligations of the subpoenas’ recipients. tice, public corruption, and other abuses of Desiderio, Nadler: ‘This is Formal Impeachment We advised that the subpoenas were invalid power by President Trump, his associates, Proceedings,’ Politico (Aug. 8, 2019), because, among other reasons, the commit- and members of his Administration.’’ 6 Those www.politico.com/story/2019/08/ 08/nadler- tees lacked the authority to conduct the pur- document requests did not mention impeach- this-is-formal-impeachment-proceedings– ported inquiry and, with respect to several ment. 1454360 (noting that Nadler ‘‘has privately testimonial subpoenas, the committees After the Special Counsel finished his in- pushed Speaker Nancy Pelosi to support a impermissibly sought to exclude agency vestigation, the Judiciary Committee de- formal inquiry of whether to remove the counsel from scheduled depositions. In reli- manded his investigative files, describing its president from office’’). On September 12, the ance upon that advice, you and other respon- request as an exercise of legislative over- Judiciary Committee approved a resolution sible officials directed employees within sight authority. See Letter for William P. describing its investigation as an impeach- their respective departments and agencies Barr, Attorney General, from Jerrold Nadler, ment inquiry and adopting certain proce- not to provide the documents and testimony Chairman, Committee on the Judiciary, U.S. dures for the investigation. See Resolution requested under those subpoenas. House of Representatives at 3 (May 3, 2019) for Investigative Procedures Offered by On October 8, 2019, you sent a letter to (asserting that ‘‘[t]he Committee has ample Chairman Jerrold Nadler, H. Comm. on the Speaker Pelosi and the three chairmen ad- jurisdiction under House Rule X(l) to con- Judiciary, 116th Cong. (Sept. 12, 2019), vising them that their purported impeach- duct oversight of the Department [of Jus- docs.house.gov/meetings/JU/JU00/20190912/ ment inquiry was ‘‘constitutionally invalid’’ tice], undertake necessary investigations, 109921/BILLS-116pih- because the House had not authorized it.10 and consider legislation regarding the fed- ResolutionforInvestigative Procedures.pdf. The House Minority Leader, Kevin McCar- eral obstruction of justice statutes, cam- Speaker Pelosi did not endorse the Judici- thy, and the Ranking Member of the Judici- paign-related crimes, and special counsel in- ary Committee’s characterization of its in- ary Committee, Doug Collins, had already vestigations, among other things’’). The vestigation during the summer of 2019. But made the same objection.11 Senator Lindsey committee’s subsequent letters and public she later purported to announce a formal im- Graham introduced a resolution in the Sen- statements likewise described its inquiry as peachment inquiry in connection with a sep- ate, co-sponsored by 49 other Senators, serving a ‘‘legislative purpose.’’ E.g., Letter arate matter arising out of a complaint filed which objected to the House’s impeachment

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00069 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.094 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S356 CONGRESSIONAL RECORD — SENATE January 21, 2020 process because it had not been authorized tive judgments normally depend more on the the trial of impeachments.’’ Id. at 439; see by the full House and did not provide the predicted consequences of proposed legisla- also The Federalist No. 66, at 445–46 (defending President with the procedural protections tive actions and their political acceptability, the ‘‘partial intermixture’’ in the impeach- enjoyed in past impeachment inquiries. S. than on precise reconstruction of past ment context of usually separated powers as Res. 378, 116th Cong. (2019). events,’’ Senate Select Comm. on Presidential ‘‘not only proper, but necessary to the mu- On October 25, 2019, the U.S. District Court Campaign Activities v. Nixon, 498 F.2d 725, 732 tual defense of the several members of the for the District of Columbia granted the Ju- (D.C. Cir. 1974) (en banc). By contrast, an im- government, against each other’’; noting diciary Committee’s request for grand-jury peachment inquiry must evaluate whether a that dividing ‘‘the right of accusing’’ from information from the Special Counsel’s in- civil officer did, or did not, commit treason, ‘‘the right of judging’’ between ‘‘the two vestigation, holding that the committee was bribery, or another high crime or mis- branches of the legislature . . . avoids the in- conducting an impeachment inquiry that demeanor, U.S. Const. art. II, § 4, and it is convenience of making the same persons was ‘‘preliminar[y] to . . . a judicial pro- more likely than a legislative oversight in- both accusers and judges’’). The House’s im- ceeding,’’ for purposes of the exception to vestigation to call for the reconstruction of peachment authority differs fundamentally grand-jury secrecy in Rule 6(e)(3)(E)(i) of the past events. in character from its legislative power. Federal Rules of Criminal Procedure. See In Thus, the House has traditionally marked With respect to both its legislative and its re Application of the Comm. on the Judiciary, the shift to an impeachment inquiry by impeachment powers, the House has cor- U.S. House of Reps., No. 19–gj–48, 2019 WL adopting a resolution that authorizes a com- responding powers of investigation, which 5485221 (D.D.C. Oct. 25, 2019), stay granted, No. mittee to investigate through court-like pro- enable it to collect the information nec- 19–5288 (D.C. Cir. Oct. 29, 2019), argued (D.C. cedures differing significantly from those essary for the exercise of those powers. The Cir. Jan. 3, 2020). In so holding, the court used in routine oversight. See, e.g., Jefferson’s Supreme Court has explained that ‘‘[t]he concluded that the House need not adopt a Manual § 606, at 324 (recognizing that, in power of inquiry—with process to enforce resolution before a committee may begin an modern practice, ‘‘the sentiment of commit- it—is an essential and appropriate auxiliary impeachment inquiry. Id. at *26–28. As we tees has been in favor of permitting the ac- to the legislative function.’’ McGrain, 273 discuss below, the district court’s analysis of cused to explain, present witnesses, cross-ex- U.S. at 174. Thus, in the legislative context, this point relied on a misreading of the his- amine, and be represented by counsel’’ (cita- the House’s investigative power ‘‘encom- torical record. tions omitted)); see also Cong. Research passes inquiries concerning the administra- Faced with continuing objections from the Serv., R45983, Congressional Access to Informa- tion of existing laws as well as proposed or Administration and members of Congress to tion in an Impeachment Investigation 15 (Oct. possibly needed statutes.’’ Watkins v. United the validity of the impeachment-related sub- 25, 2019) (‘‘[D]uring both the Nixon and Clin- States, 354 U.S. 178, 187 (1957); see also Scope of poenas, the House decided to take a formal ton impeachment investigations, the House Congressional Oversight and Investigative vote to authorize the impeachment inquiry. Judiciary Committee adopted resolutions af- Power with Respect to the Executive Branch, 9 See Letter for Democratic Members of the fording the President and his counsel the Op. O.L.C. 60, 60 (1985) (‘‘Congress may con- House from Nancy Pelosi, Speaker of the right to respond to evidence gathered by the duct investigations in order to obtain facts House (Oct. 28, 2019). On October 31, the committee, raise objections to testimony, pertinent to possible legislation and in order House adopted a resolution ‘‘direct[ing]’’ sev- and cross-examine witnesses[.]’’).12 A House to evaluate the effectiveness of current eral committees ‘‘to continue their ongoing resolution authorizing the opening of an im- laws.’’). The Court has further recognized investigations as part of the existing House peachment inquiry plays a highly significant that the House also has implied powers to in- of Representatives inquiry into whether suf- role in directing the scope and nature of the vestigate in support of its other powers, in- ficient grounds exist for the House of Rep- constitutional inquest that follows. cluding its power of impeachment. See, e.g., resentatives to exercise its Constitutional Such a resolution does not just reflect tra- Kilbourn v. Thompson, 103 U.S. 168, 190 (1880); power to impeach Donald John Trump, ditional practice. It is a constitutionally re- see also In re Request for Access to Grand Jury President of the United States of America.’’ quired step before a committee may exercise Materials, 833 F.2d 1438, 1445 (11th Cir. 1987) Resolution 660, § 1. The resolution also adopt- compulsory process in aid of the House’s (the House ‘‘holds investigative powers that ed special procedures for impeachment pro- ‘‘sole Power of Impeachment.’’ U.S. Const. are ancillary to its impeachment power’’); ceedings before HPSCI and the Judiciary art. I, § 2, cl. 5. In this Part, we explain the Mazars USA, 940 F.3d at 749 (Rao, J., dis- Committee. basis for this conclusion. First, we address senting) (‘‘The House . . . has a separate II. the constitutional distinction between the power to investigate pursuant to The Constitution vests in the House of House’s power to investigate for legislative impeachment[.]’’). Representatives a share of Congress’s legisla- purposes and for impeachment purposes. We Because the House has different investigative power and, separately, ‘‘the sole Power next explain why an impeachment inquiry tive powers, establishing which authority of Impeachment.’’ U.S. Const. art. I, § 1; id. must be authorized by the House itself. Fi- has been delegated has often been necessary art. I, § 2, cl. 5. Both the legislative power nally, we review the historical record, which in the course of determining the scope of a and the impeachment power include an im- confirms, across dozens of examples, that the committee’s authority to compel witnesses plied authority to investigate, including by House must specifically authorize commit- and testimony. In addressing the scope of the means of compulsory process. But those in- tees to conduct impeachment investigations House’s investigative powers, all three vestigative powers are not interchangeable. and to issue compulsory process. branches of the federal government have rec- The House has broadly delegated to commit- A. ognized the constitutional distinction be- tees its power to investigate for legislative The Constitution vests several different tween a legislative investigation and an im- purposes, but it has held impeachment au- powers in the House of Representatives. As peachment inquiry. thority more closely, granting authority to one half of Congress, the House shares with 1. conduct particular impeachment investiga- the Senate the ‘‘legislative Powers’’ granted We begin with the federal courts. In tions only as the need has arisen. The House in the Constitution (U.S. Const. art. I, § 1), Kilbourn, the Supreme Court held that a has followed that approach from the very which include the ability to pass bills (id. House committee could not investigate a first impeachment inquiry through dozens art. I, § 7, cl. 2) and to override presidential bankrupt company indebted to the United more that have followed over the past 200 vetoes (id. art. I, § 7, cl. 3) in the process of States because its request exceeded the years, including every inquiry involving a enacting laws pursuant to Congress’s enu- scope of the legislative power. According to President. merated legislative powers (e.g., id. art. I, the Court, the committee had employed in- In so doing, the House has recognized the § 8), including the power to appropriate fed- vestigative power to promote the United fundamental difference between a legislative eral funds (id. art. I, § 9, cl. 7). But the House States’ interests as a creditor, rather than oversight investigation and an impeachment has other, non-legislative powers. It is, for for any valid legislative purpose. See 103 U.S. investigation. The House does more than instance, ‘‘the Judge of the Elections, Re- at 192–95. At the same time, the Court con- simply pick a label when it ‘‘debate[s] and turns and Qualifications of its own Mem- ceded that ‘‘the whole aspect of the case decide[s] when it wishes to shift from legis- bers.’’ Id. art. I, § 5, cl. 1. And it has ‘‘the sole would have been changed’’ if ‘‘any purpose lating to impeaching’’ and to authorize a Power of Impeachment.’’ Id. art. I, § 2, cl. 5. had been avowed to impeach the committee to take responsibility for ‘‘the The House and Senate do not act in a legis- [S]ecretary’’ of the Navy for mishandling the grave and weighty process of impeachment.’’ lative role in connection with impeachment. debts of the United States. Id. at 193. But, Trump v. Mazars USA, LLP, 940 F.3d 710, 737, The Constitution vests the House with the after reviewing the resolution authorizing 738 (D.C. Cir. 2019), cert. granted, No. 19–715 authority to accuse civil officers of ‘‘Trea- the actions of the committee, the Court con- (Dec. 13, 2019); see also id. at 757 (Rao, J., dis- son, Bribery, or other high Crimes and Mis- firmed that the House had not authorized senting) (recognizing that ‘‘the Constitution demeanors’’ that warrant removal and dis- any impeachment inquiry. Id. forces the House to take accountability for qualification from office. U.S. Const. art. I, In a similar vein, the D.C. Circuit distin- its actions when investigating the Presi- § 2, cl. 5; id. art. I, § 3, cl. 7; id. art. II, § 4. As guished the needs of the House Judiciary dent’s misconduct’’). Because a legislative Alexander Hamilton explained, the members Committee, which was conducting an im- investigation seeks ‘‘information respecting of the House act as ‘‘the inquisitors for the peachment inquiry into the actions of Presi- the conditions which the legislation is in- nation.’’ The Federalist No. 65, at 440 (Jacob dent Nixon, from those of the Senate Select tended to affect or change,’’ McGrain v. E. Cooke ed., 1961). And Senators, in turn, Committee on Presidential Campaign Activi- Daugherty, 273 U.S. 135, 175 (1927), ‘‘legisla- act ‘‘in their judicial character as a court for ties, whose investigation was premised upon

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00070 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.096 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S357 legislative oversight. See Senate Select Comm., tives, from Lewis Cass, Secretary of War House Judiciary Committee determined that 498 F.2d at 732. The court recognized that the (Mar. 2, 1832)). the House must provide express authoriza- impeachment investigation was rooted in In 1846, another House select committee re- tion before any committee may exercise ‘‘an express constitutional source’’ and that quested that President Polk account for dip- compulsory powers in an impeachment in- the House committee’s investigative needs lomatic expenditures made in previous ad- vestigation. See infra Part II.C.1. Thus, mem- differed in kind from the Senate committee’s ministrations by Secretary of State Daniel bers of the House, like the other branches of oversight needs. Id. In finding that the Sen- Webster. Polk refused to disclose informa- government, have squarely recognized the ate committee had not demonstrated that tion but ‘‘cheerfully admitted’’ that the distinction between congressional investiga- President Nixon’s audiotapes were ‘‘critical House may have been entitled to such infor- tions for impeachment purposes and those to the performance of its legislative func- mation if it had ‘‘institute[d] an [impeach- for legislative purposes. ment] inquiry into the matter.’’ Cong. Globe, tions,’’ the court recognized ‘‘a clear dif- B. 29th Cong., 1st Sess. 698 (1846).13 Notably, he ference between Congress’s legislative tasks Although the House of Representatives has and the responsibility of a grand jury, or any took this position even though some members of Congress had suggested that evidence ‘‘the sole Power of Impeachment,’’ U.S. institution engaged in like functions,’’ such as Const. art. I, § 2, cl. 5 (emphasis added), the the House Judiciary Committee, which had about the expenditures could support an impeachment of Webster.14 In these and other associated power to conduct an investigation ‘‘begun an inquiry into presidential impeach- for impeachment purposes may, like the ment.’’ Id. (emphases added). instances, the Executive Branch has consistently drawn a distinction between the power House’s other investigative powers, be dele- More recently, the D.C. Circuit acknowl- gated. The full House may make such a dele- edged this same distinction in Mazars USA. of legislative oversight and the power of impeachment. See Mazars USA, 940 F.3d at 761– gation by adopting a resolution in exercise of As the majority opinion explained, ‘‘the Con- its authority to determine the rules for its stitution has left to Congress the judgment 64 (Rao, J., dissenting) (discussing examples from the Buchanan, Grant, Cleveland, Theo- proceedings, see id. art. I, § 5, cl. 2, and each whether to commence the impeachment House has broad discretion in determining process’’ and to decide whether the conduct dore Roosevelt, and Coolidge Administra- the conduct of its own proceedings. See, e.g., in question is ‘‘better addressed through tions). NLRB v. Noel Canning, 573 U.S. 513, 551–52 oversight and legislation than impeach- 3. (2014); United States v. Ballin, 144 U.S. 1, 5 ment.’’ 940 F.3d at 739. Judge Rao’s dissent House members, too, have consistently rec- (1892); see also 1 Deschler’s Precedents ch. 5, § 4, ognized the difference between a legislative also recognized the distinction between a at 305–06. But the House must actually exer- oversight investigation and an impeachment legislative oversight investigation and an cise its discretion by making that judgment investigation. See Alissa M. Dolan et al., impeachment inquiry. See id. at 757 (‘‘The in the first instance, and its resolution sets Framers established a mechanism for Con- Cong. Research Serv., RL30240, Congressional the terms of a committee’s authority. See gress to hold even the highest officials ac- Oversight Manual 25 (Dec. 19, 2014) (‘‘A com- United States v. Rumely, 345 U.S. 41, 44 (1953). mittee’s inquiry must have a legislative pur- countable, but also required the House to No committee may exercise the House’s in- pose or be conducted pursuant to some other take responsibility for invoking this vestigative powers in the absence of such a power.’’). Judge Rao disagreed with the ma- constitutional power of Congress, such as the authority . . . to . . . conduct impeach- delegation. jority insofar as she understood Congress’s As the Supreme Court has explained in the ment proceedings.’’ (emphases added)); Cong. impeachment power to be the sole means for context of legislative oversight, ‘‘[t]he the- Research Serv., Congressional Access to Infor- investigating past misconduct by impeach- ory of a committee inquiry is that the com- mation in an Impeachment Investigation at 1 able officers. But both the majority and the mittee members are serving as the rep- (distinguishing between ‘‘legislative dissent agreed with the fundamental propo- resentatives of the parent assembly in col- sition that the Constitution distinguishes investigation[s]’’ and ‘‘[m]uch more rare[]’’ ‘‘impeachment investigation[s]’’). lecting information for a legislative pur- between investigations pursuant to the pose’’ and, in such circumstances, commit- House’s impeachment authority and those For instance, in 1793, when debating the House’s jurisdiction to investigate Secretary tees ‘‘are endowed with the full power of the that serve its legislative authority (includ- Congress to compel testimony.’’ Watkins, 354 ing oversight). of the Treasury Alexander Hamilton, some members argued that the House could not U.S. at 200–01. The same is true for impeach- 2. 15 adopt a resolution of investigation into ment investigations. Thus, Hamilton recog- The Executive Branch similarly has long Hamilton’s conduct without adopting the nized, the impeachment power involves a distinguished between investigations for leg- ‘‘solemnities and guards’’ of an impeachment trust of such ‘‘delicacy and magnitude’’ that islative and for impeachment purposes. In inquiry. See, e.g., 3 Annals of Cong. 903 (1793) it ‘‘deeply concerns the political reputation 1796, the House ‘‘[r]esolved’’ that President (statement of Rep. Smith); id. at 947–48 and existence of every man engaged in the Washington ‘‘be requested to lay before th[e] (statement of Rep. Boudinot) (distinguishing administration of public affairs.’’ The Fed- House a copy of the instructions’’ given to between the House’s ‘‘Legislative capacity’’ eralist No. 65, at 440. The Founders foresaw John Jay in preparation for his negotiation and its role as ‘‘the grand inquest of the Na- that an impeachment effort would ‘‘[i]n of a peace settlement with Great Britain. 5 tion’’); see also Mazars USA, 940 F.3d at 758 many cases . . . connect itself with the pre- Annals of Cong. 759–62 (1796). Washington re- (Rao, J., dissenting) (discussing the episode). existing factions’’ and ‘‘inlist all their ani- fused to comply because the Constitution In 1796, when the House debated whether to mosities, partialities, influence and interest contemplates that only the Senate, not the request the President’s instructions for ne- on one side, or on the other.’’ Id. at 439. As House, must consent to a treaty. See id. at gotiating the Jay Treaty, Representative a result, they placed the solemn authority to 760–61. ‘‘It d[id] not occur’’ to Washington Murray concluded that the House could not initiate an impeachment in ‘‘the representa- ‘‘that the inspection of the papers asked for, meddle in treatymaking, but acknowledged tives of the nation themselves.’’ Id. at 440. In c[ould] be relative to any purpose under the that ‘‘the subject would be presented under order to entrust one of its committees to in- cognizance of the House of Representatives, an aspect very different’’ if the resolution’s vestigate for purposes of impeachment, the except that of an impeachment.’’ Id. at 760 (em- supporters had ‘‘stated the object for which full House must ‘‘spell out that group’s juris- phasis added). Because the House’s ‘‘resolu- they called for the papers to be an impeach- diction and purpose.’’ Watkins, 354 U.S. at tion ha[d] not expressed’’ any purpose of pur- ment.’’ 5 Annals of Cong. 429–30 (1796). 201. Otherwise, a House committee con- suing impeachment, Washington concluded Similarly, in 1846, a House select com- trolled by such a faction could launch open- that ‘‘a just regard to the constitution . . . mittee agreed with President Polk’s decision ended and untethered investigations without forb[ade] a compliance with [the House’s] re- not to turn over requested information re- the sanction of a majority of the House. quest’’ for documents. Id. at 760, 762. garding State Department expenditures Because a committee may exercise the In 1832, President Jackson drew the same where the House did not act ‘‘with a view to House’s investigative powers only when au- line. A select committee of the House had re- an impeachment.’’ H.R. Rep. No. 29–684, at 4 thorized, the committee’s actions must be quested that the Secretary of War (1846) (noting that four of the committee’s within the scope of a resolution delegating ‘‘furnish[]’’ it ‘‘with a copy’’ of an unratified five members ‘‘entirely concur with the authority from the House to the committee. 1830 treaty with the Chickasaw Tribe and President of the United States’’ in deciding As the D.C. Circuit recently explained, ‘‘it ‘‘the journal of the commissioners’’ who ne- not to ‘‘communicate or make [the requested matters not whether the Constitution would gotiated it. H.R. Rep. No. 22–488, at 1 (1832). documents] public, except with a view to an give Congress authority to issue a subpoena The Secretary conferred with Jackson, who impeachment’’ and that ‘‘[n]o dissent from if Congress has given the issuing committee refused to comply with the committee’s re- the views of that message was expressed by no such authority.’’ Mazars USA, 940 F.3d at quest on the same ground cited by President the House’’); see also Mazars USA, 940 F.3d at 722; see Dolan, Congressional Oversight Manual Washington: he ‘‘d[id] not perceive that a 761 (Rao, J., dissenting). To take another ex- at 24 (‘‘Committees of Congress only have copy of any part of the incomplete and un- ample, in 1879, the House Judiciary Com- the power to inquire into matters within the ratified treaty of 1830, c[ould] be relative to mittee distinguished ‘‘[i]nvestigations look- scope of the authority delegated to them by any purpose under the cognizance of the ing to the impeachment of public officers’’ their parent body.’’). In evaluating a com- House of Representatives, except that of an from ‘‘an ordinary investigation for legisla- mittee’s authority, the House’s resolution impeachment, which the resolution has not tive purposes.’’ H.R. Rep. No. 45–141, at 2 ‘‘is the controlling charter of the commit- expressed.’ ’’ Id. at 14 (reprinting Letter for (1879). tee’s powers,’’ and, therefore, the commit- Charles A. Wickliffe, Chairman, Committee Most significantly, during the impeach- tee’s ‘‘right to exact testimony and to call on Public Lands, U.S. House of Representa- ments of Presidents Nixon and Clinton, the for the production of documents must be

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00071 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.097 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S358 CONGRESSIONAL RECORD — SENATE January 21, 2020 found in this language.’’ Rumely, 345 U.S. at or reviewed available information without 1980s judicial inquiries as if they represented 44; see also Watkins, 354 U.S. at 201 (‘‘Those conducting a formal investigation, in nearly a rule of practice, rather than a marked de- instructions are embodied in the authorizing every case in which the committee resorted viation from the dozens of occasions where resolution. That document is the commit- to compulsory process, the House expressly the House recognized the need to adopt a for- tee’s charter.’’); id. at 206 (‘‘Plainly [the authorized the impeachment investigation. mal resolution to delegate its investigative House’s] committees are restricted to the That practice was foreseen as early as 1796. authority. As our survey below confirms, the missions delegated to them .... No witness When Washington asked his Cabinet for opin- historical practice with respect to Presi- can be compelled to make disclosures on ions about how to respond to the House’s re- dents, other executive officers, and judges is matters outside that area.’’); Exxon Corp. v. quest for the papers associated with the Jay consistent with the structure of our Con- FTC, 589 F.2d 582, 592 (D.C. Cir. 1978) (‘‘To Treaty, the Secretary of the Treasury, Oliver stitution, which requires the House, as the issue a valid subpoena, . . . a committee or Wolcott Jr., explained that ‘‘the House of ‘‘sole’’ holder of impeachment power, to au- subcommittee must conform strictly to the Representatives has no right to demand pa- thorize any impeachment investigation that resolution establishing its investigatory pers’’ outside its legislative function a committee may conduct on its behalf. powers[.]’’); United States v. Lamont, 18 F.R.D. ‘‘[e]xcept when an Impeachment is proposed 1. 27, 32 (S.D.N.Y. 1955) (Weinfeld, J.) (‘‘No com- & a formal enquiry instituted.’’ Letter for While many Presidents have been the sub- mittee of either the House or Senate, and no George Washington from Oliver Wolcott Jr. ject of less-formal demands for impeach- Senator and no Representative, is free on its (Mar. 26, 1796), reprinted in 19 The Papers of ment, at least eleven have faced resolutions or his own to conduct investigations unless George Washington: Presidential Series 611–12 introduced in the House for the purpose of authorized. Thus it must appear that Con- (David R. Hoth ed., 2016) (emphasis added). initiating impeachment proceedings.19 In gress empowered the Committee to act, and From the very first impeachment, the some cases, the House formally voted to re- further that at the time the witness alleg- House has recognized that a committee ject opening a presidential impeachment in- edly defied its authority the Committee was would require a delegation to conduct an im- vestigation. In 1843, the House rejected a res- acting within the power granted to it.’’). peachment inquiry. In 1797, when House olution calling for an investigation into the While a committee may study some matters members considered whether a letter con- impeachment of President Tyler. See Cong. without exercising the investigative powers tained evidence of criminal misconduct by Globe, 27th Cong., 3d Sess. 144–46 (1843). In of the House, a committee’s authority to Senator William Blount, they sought to con- 1932, the House voted by a wide margin to compel the production of documents and tes- firm Blount’s handwriting but concluded table a similar resolution introduced against timony depends entirely upon the jurisdic- that the Committee of the Whole did not President Hoover. See 76 Cong. Rec. 399–402 tion provided by the terms of the House’s have the power of taking evidence. See 7 An- (1932). In many other cases, the House simply nals of Cong. 456–58 (1797); 3 Asher C. Hinds, delegation. referred impeachment resolutions to the Ju- In Watkins, the Supreme Court relied upon Hinds’ Precedents of the House of Representa- diciary Committee, which took no further those principles to set aside a conviction for tives of the United States § 2294, at 644–45 (1907). action before the end of the Congress. But, in contempt of Congress because of the author- Thus, the committee ‘‘rose,’’ and the House three instances before President Trump, the izing resolution’s vagueness. The uncertain itself took testimony. 3 Hinds’ Precedents House moved forward with investigating the § 2294, at 646. Two days later, the House ap- impeachment of a President.20 Each of those scope of the House’s delegation pointed a select committee to ‘‘prepare and presidential impeachments advanced to the impermissibly created ‘‘a wide gulf between report articles of impeachment’’ and vested investigative stage only after the House the responsibility for the use of investigative in that committee the ‘‘power to send for adopted a resolution expressly authorizing a power and the actual exercise of that persons, papers, and records.’’ 7 Annals of committee to conduct the investigation. In power.’’ 354 U.S. at 205. If the House wished Cong. at 463–64, 466; 3 Hinds’ Precedents § 2297, no case did the committee use compulsory to authorize the exercise of its investigative at 648.16 As we discuss in this section, we process until the House had expressly au- power, then it needed to take responsibility have identified dozens of other instances thorized the impeachment investigation. for the use of that power, because a congres- where the House, in addition to referring The impeachment investigation of President sional subpoena, issued with the threat of a proposed articles of impeachment, author- Andrew Johnson. On January 7, 1867, the criminal contempt citation, necessarily ized formal impeachment investigations. House adopted a resolution authorizing the placed ‘‘constitutional liberties’’ in ‘‘dan- Against this weighty historical record, ‘‘Committee on the Judiciary’’ to ‘‘inquire ger.’’ Id. which involves nearly 100 authorized im- into the official conduct of Andrew Johnson The concerns expressed by the Court in peachment investigations, the outliers are . . . and to report to this House whether, in Watkins apply with equal, if not greater, few and far between.17 In 1879, it appears that their opinion,’’ the President ‘‘has been force when considering the authority of a a House committee, which was expressly au- guilty of any act, or has conspired with oth- House committee to compel the production thorized to conduct an oversight investiga- ers to do acts, which, in contemplation of of documents in connection with inves- tion into the administration of the U.S. con- the Constitution, are high crimes or mis- tigating impeachment. As John Labovitz, a sulate in Shanghai, ultimately investigated demeanors.’’ Cong. Globe, 39th Cong., 2d House impeachment attorney during the and recommended that the former consul- Sess. 320–21 (1867); see also 3 Hinds’ Precedents Nixon investigation, explained: general and former vice consul-general be § 2400, at 824. The resolution conferred upon ‘‘[I]mpeachment investigations, because the committee the ‘‘power to send for per- impeached. In addition, between 1986 and they involve extraordinary power and (at sons and papers and to administer the cus- 1989, the Judiciary Committee considered the least where the president is being inves- tomary oath to witnesses.’’ Cong. Globe, 39th impeachment of three federal judges who had tigated) may have extraordinary con- Cong., 2d Sess. 320 (1867). The House referred been criminally prosecuted (two of whom sequences, are not to be undertaken in the a second resolution to the Judiciary Com- had been convicted). The Judiciary Com- same manner as run-of-the-mill legislative mittee on February 4, 1867. Id. at 991; 3 Hinds’ mittee pursued impeachment before there investigations. The initiation of a presi- Precedents § 2400, at 824.21 Shortly before that had been any House vote, and issued sub- dential impeachment inquiry should itself Congress expired, the committee reported poenas in two of those inquiries. Since then, require a deliberate decision by the House.’’ that it had seen ‘‘sufficient testimony . . . to however, the Judiciary Committee re- John R. Labovitz, Presidential Impeachment justify and demand a further prosecution of affirmed during the impeachment of Presi- 184 (1978). Because a committee possesses the investigation.’’ H.R. Rep. No. 39–31, at 2 dent Clinton that, in order to conduct an im- only the authorities that have been dele- (1867). On March 7, 1867, the House in the new peachment investigation, it needed an ex- gated to it, a committee may not use com- Congress adopted a resolution that author- press delegation of investigative authority pulsory process to investigate impeachment ized the committee ‘‘to continue the inves- from the House. And in all subsequent cases without the formal authorization of the tigation authorized’’ in the January 7 resolu- the House has hewed to the well-established House. tion and to ‘‘send for persons and papers’’ practice of authorizing each impeachment and administer oaths. Cong. Globe, 40th C. investigation. Cong., 1st Sess. 18, 25 (1867); 3 Hinds’ Prece- Historical practice confirms that the The U.S. District Court for the District of dents § 2401, at 825–26. The committee rec- House must authorize an impeachment in- Columbia recently reviewed a handful of his- ommended articles of impeachment, but the quiry. See, e.g., Zivotofsky v. Kerry, 135 S. Ct. torical examples and concluded that House House rejected those articles on December 7, 2076, 2091 (2015) (recognizing that ‘‘[i]n sepa- committees may conduct impeachment in- 1867. See Cong. Globe, 40th Cong., 2d Sess. 67– ration-of-powers cases,’’ the Court has placed vestigations without a vote of the full House. 68 (1867). In early 1868, however, the House ‘‘significant weight’’ on ‘‘accepted under- See In re Application of the Comm. on the Judi- adopted resolutions authorizing another in- standings and practice’’); Noel Canning, 573 ciary, 2019 WL 5485221, at *26–28. Yet, as the vestigation, with compulsory powers, by the U.S. at 514 (same). The House has expressly discussion below confirms, the district court Committee on Reconstruction and trans- authorized every impeachment investigation misread the lessons of history.18 The district ferred to that committee the evidence from of a President, including by identifying the court treated the House Judiciary Commit- the Judiciary Committee’s earlier investiga- investigative committee and authorizing the tee’s preliminary inquiries in the Clinton tion. See Cong. Globe, 40th Cong., 2d Sess. use of compulsory process. The same thing and Nixon impeachments as investigations, 784–85, 1087 (1868); 3 Hinds’ Precedents § 2408, at has been true for nearly all impeachment in- without recognizing that, in both cases, the 845. vestigations of other executive officials and committee determined that a full House vote On February 21, 1868, the impeachment ef- judges. While committees have sometimes was necessary before it could issue sub- fort received new impetus when Johnson re- studied a proposed impeachment resolution poenas. The district court also treated the moved the Secretary of War without the

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00072 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.098 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S359 Senate’s approval, contrary to the terms of sisted of digesting publicly available docu- to the Judiciary Committee the powers con- the Tenure of Office Act, which Johnson ments and prior impeachment precedents. tained in this resolution, we will be pro- (correctly) held to be an unconstitutional That was consistent with the committee’s viding that committee with the resources it limit on his authority. See Cong. Globe, 40th ‘‘only mandate,’’ which was to ‘‘study more needs to inform the whole House of the facts Cong., 2d Sess. 1326–27 (1868); 3 Hinds’ Prece- than a dozen impeachment resolutions sub- of this case.’’); id. at 2362 (statement of Rep. dents § 2408–09, at 845–47; see also Myers v. mitted’’ in 1973. James M. Naughton, Im- Boland) (‘‘House Resolution 803 is intended United States, 272 U.S. 52, 176 (1926) (finding peachment Panel Seeks House Mandate for In- to delegate to the Committee on the Judici- that provision of the Tenure of Office Act quiry, N.Y. Times, Jan. 25, 1974, at 1. ary the full extent of the powers of this ‘‘was invalid’’). That day, the Committee on In January, the committee determined House in an impeachment proceeding[]—both Reconstruction reported an impeachment that a formal investigation was necessary, as to the persons and types of things that resolution to the House, which was debated and it requested ‘‘an official House mandate may be subpenaed and the methods for doing on February 22 and passed on February 24. to conduct the inquiry,’’ relying upon the so.’’). Only after the Judiciary Committee Cong. Globe, 40th Cong., 2d Sess. 1400 (1868); ‘‘precedent in each of the earlier [impeach- had received authorization from the House 3 Hinds’ Precedents §§ 2409–12, at 846–51. ment] inquiries.’’ Id. at 17. On January 7, did it request and subpoena tape recordings The impeachment investigation of President Chairman Rodino ‘‘announced that the Com- and documents from President Nixon. See Nixon. Although many resolutions were in- mittee’s subpoena power does not extend to H.R. Rep. No. 93–1305, at 187 (1974).23 troduced in support of President Nixon’s im- impeachment and that . . . the Committee The impeachment investigation of President peachment earlier in 1973, the House’s formal would seek express authorization to sub- Clinton. On September 9, 1998, Independent impeachment inquiry arose in the months poena persons and documents with regard to Counsel Kenneth W. Starr, acting under 28 following the ‘‘Saturday Night Massacre,’’ the impeachment inquiry.’’ Legal Aspects of U.S.C. § 595(c), advised the House of Rep- during which President Nixon caused the ter- Impeachment at 43; see also Richard L. Lyons, resentatives that he had uncovered substan- mination of Special Prosecutor Archibald GOP Picks Jenner as Counsel, Wash. Post, Jan. tial and credible information that he be- Cox at the cost of the resignations of his At- 8, 1974, at A1, A6 (‘‘Rodino said the com- lieved could constitute grounds for the im- torney General and Deputy Attorney Gen- mittee will ask the House when it recon- peachment of President Clinton. 18 Deschler’s eral. See Letter Directing the Acting Attor- venes Jan. 21 to give it power to subpoena Precedents app. at 548–49 (2013). Two days ney General to Discharge the Director of the persons and documents for the inquiry. The later, the House adopted a resolution that Office of Watergate Special Prosecution committee’s subpoena power does not now referred the matter, along with Starr’s re- Force (Oct. 20, 1973), Pub. Papers of Pres. extend to impeachment proceedings, he port and 36 boxes of evidence, to the Judici- Richard Nixon 891 (1973). Immediately there- ary Committee. H.R. Res. 525, 105th Cong. said.’’). As the House Parliamentarian later after, House members introduced resolutions (1998). The House directed that committee to explained, the Judiciary Committee’s gen- calling either for the President’s impeach- review the report and ‘‘determine whether eral authority to conduct investigations and ment or for the opening of an investigation.22 sufficient grounds exist to recommend to the issue subpoenas ‘‘did not specifically include The Speaker of the House referred the reso- House that an impeachment inquiry be com- impeachments within the jurisdiction of the lutions calling for an investigation to the menced.’’ Id. § 1. The Rules Committee’s Committee on the Judiciary,’’ and it was Rules Committee and those calling for im- Chairman emphasized that the House would therefore ‘‘considered necessary for the peachment to the Judiciary Committee. See need to adopt a subsequent resolution if it House to specifically vest the Committee on Office of Legal Counsel, U.S. Dep’t of Jus- decided to authorize an impeachment in- the Judiciary with the investigatory and tice, Legal Aspects of Impeachment: An Over- quiry: ‘‘[T]his resolution does not authorize subpena power to conduct the impeachment view at 40 (Feb. 1974) (‘‘Legal Aspects of Im- or direct an impeachment inquiry.... It investigation.’’ 3 Deschler’s Precedents ch. 14, peachment’’); 3 Deschler’s Precedents ch. 14, § 5, merely provides the appropriate parameters § 15.2, at 2172 (Parliamentarian’s Note). at 2020. for the Committee on the Judiciary . . . to On February 6, 1974, the House approved Following the referrals, the Judiciary . . . make a recommendation to the House as Resolution 803, which ‘‘authorized and di- Committee ‘‘beg[a]n an inquiry into whether to whether we should commence an impeach- rected’’ the Judiciary Committee ‘‘to inves- President Nixon ha[d] committed any of- ment inquiry.’’ 144 Cong. Rec. 20021 (1998) tigate fully and completely whether suffi- fenses that could lead to impeachment,’’ an (statement of Rep. Solomon). exercise that the committee considered ‘‘pre- cient grounds exist for the House of Rep- On October 7, 1998, the Judiciary Com- liminary.’’ Richard L. Madden, Democrats resentatives to exercise its constitutional mittee did recommend that there be an in- Agree on House Inquiry into Nixon’s Acts, N.Y. power to impeach Richard M. Nixon, Presi- vestigation for purposes of impeachment. As Times, Oct. 23, 1973, at 1. The committee dent of the United States of America.’’ H.R. explained in the accompanying report: started collecting publicly available mate- Res. 803, 93d Cong. § 1. The resolution specifi- ‘‘[T]he Committee decided that it must receive rials, and Chairman Peter Rodino Jr. stated cally authorized the committee ‘‘to require authorization from the full House before pro- that he would ‘‘set up a separate committee . . . by subpena or otherwise . . . the attend- ceeding on any further course of action. Be- staff to ‘collate’ investigative files from Sen- ance and testimony of any person’’ and ‘‘the cause impeachment is delegated solely to the ate and House committees that have exam- production of such things’’ as the committee House of Representatives by the Constitu- ined a variety of charges against the Nixon ‘‘deem[ed] necessary’’ to its investigation. tion, the full House of Representatives Administration.’’ James M. Naughton, Ro- Id. § 2(a). should be involved in critical decision mak- dino Vows Fair Impeachment Inquiry, N.Y. Speaking on the House floor, Chairman Ro- ing regarding various stages of impeach- Times, Oct. 30, 1973, at 32. dino described the resolution as a ‘‘necessary ment.’’ H.R. Rep. No. 105–795, at 24 (emphasis Although the committee ‘‘adopted a reso- step’’ to confer the House’s investigative added). The committee also observed that ‘‘a lution permitting Mr. Rodino to issue sub- powers on the Judiciary Committee: resolution authorizing an impeachment in- poenas without the consent of the full com- We have reached the point when it is im- quiry into the conduct of a president is con- mittee,’’ James M. Naughton, House Panel portant that the House explicitly confirm sistent with past practice,’’ citing the reso- Starts Inquiry on Impeachment Question, N.Y. our responsibility under the Constitution. lutions for Presidents Johnson and Nixon Times, Oct. 31, 1973, at 1, no subpoenas were We are asking the House of Representa- and observing that ‘‘numerous other inquir- ever issued under that purported authority. tives, by this resolution, to authorize and di- ies were authorized by the House directly, or Instead, the committee ‘‘delayed acting’’ on rect the Committee on the Judiciary to in- by providing investigative authorities, such the impeachment resolutions. James M. vestigate the conduct of the President of the as deposition authority, to the Committee Naughton, House Unit Looks to Impeachment, United States .... on the Judiciary.’’ Id. N.Y. Times, Dec. 2, 1973, at 54. By late De- As part of that resolution, we are asking The next day, the House voted to authorize cember, the committee had hired a special- the House to give the Judiciary Committee the Judiciary Committee to ‘‘investigate ized impeachment staff. A Hard-Working the power of subpena in its investigations. fully and completely whether sufficient Legal Adviser: John Michael Doar, N.Y. Times, Such a resolution has always been passed by grounds exist for the House of Representa- Dec. 21, 1973, at 20. The staff continued the House.... It is a necessary step if we are tives to exercise its constitutional power to ‘‘ ‘wading through the mass of material al- to meet our obligations. impeach William Jefferson Clinton, Presi- ready made public,’ ’’ and the committee’s .... dent of the United States of America.’’ H.R. members began considering ‘‘the areas in . . . The sole power of impeachment carries Res. 581, 105th Cong. § 1 (1998). The resolution which the inquiry should go.’’ Bill Kovach, with it the power to conduct a full and com- authorized the committee ‘‘to require . . . by Vote on Subpoena Could Test House on Im- plete investigation of whether sufficient subpoena or otherwise . . . the attendance peachment, N.Y. Times, Jan. 8, 1974, at 14; see grounds for impeachment exist or do not and testimony of any person’’ and ‘‘the pro- also Staff of the H. Comm. on the Judiciary, exist, and by this resolution these investigative duction of . . . things,’’ and to require the 93d Cong., Rep. on Work of the Impeachment powers are conferred to their full extent upon furnishing of information ‘‘by interrog- Inquiry Staff as of February 5, 1974, at 2–3 the Committee on the Judiciary. atory.’’ Id. § 2(a). ‘‘On November 5, 1998,’’ as (1974) (noting that the staff was ‘‘first col- 120 Cong. Rec. 2350–51 (1974) (emphases part of its investigation, ‘‘the Committee lecting and sifting the evidence available in added). During the debate, others recognized presented President Clinton with 81 requests the public domain,’’ then ‘‘marshaling and that the resolution would delegate the for admission,’’ which the Committee ex- digesting the evidence available through var- House’s investigative powers to the Judici- plained that it ‘‘would have . . . compelled ious governmental investigations’’). By Jan- ary Committee. See, e.g., id. at 2361 (state- by subpoena’’ had President Clinton not uary 1974, the committee’s actions had con- ment of Rep. Rostenkowski) (‘‘By delegating complied. H.R. Rep. No. 105–830, at 77, 122

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00073 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.099 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S360 CONGRESSIONAL RECORD — SENATE January 21, 2020 (1998). And the Committee then ‘‘approved the investigation contemplated in the initial without providing any investigative author- the issuance of subpoenas for depositions and resolution). ity. See 162 Cong. Rec. H7251–54 (daily ed. materials’’ from several witnesses. 144 Cong. In a few instances, the House asked com- Dec. 6, 2016). The committee never sought to Rec. D1210–11 (daily ed. Dec. 17, 1998). mittees to draft articles of impeachment compel the appearance of Koskinen or any In discussing the Clinton precedent, the without calling for any additional impeach- other witness, and the committee does not district court in In re Application of the Com- ment investigation. For example, in 1876, appear to have taken any further action be- mittee on the Judiciary treated the D.C. Cir- after uncovering ‘‘unquestioned evidence of fore the Congress expired. cuit’s approval of the disclosure of Starr’s the malfeasance in office by General William In his 1978 book on presidential impeach- report and associated grand-jury information W. Belknap’’ (who was then Secretary of ment, former House impeachment attorney as evidence that the Judiciary Committee War) in the course of another investigation, John Labovitz observed that there were a may ‘‘commence an impeachment investiga- the House approved a resolution charging ‘‘few exceptions,’’ ‘‘mostly in the 1860s and tion’’ without a House vote. 2019 WL 5485221, the Committee on the Judiciary with the re- 1870s,’’ to the general rule that ‘‘past im- at *27 & n.36. But the D.C. Circuit did not au- sponsibility to ‘‘prepare and report without peachment investigations ha[ve] been authorize that disclosure because of any pend- unnecessary delay suitable articles of im- thorized by a specific resolution conferring ing House investigation. It did so because a peachment.’’ 4 Cong. Rec. 1426, 1433 (1876). subpoena power.’’ Labovitz, Presidential Im- statutory provision required an independent When a key witness left the country, how- peachment at 182 & n.18. In our review of the counsel to ‘‘advise the House of Representa- ever, the committee determined that addi- history, we have identified one case from tives of any substantial and credible infor- tional investigation was warranted, and it that era where a House committee com- mation which such independent counsel re- asked to be authorized ‘‘to take further menced a legislative oversight investigation ceives . . . that may constitute grounds for an proof’’ and ‘‘to send for persons and papers’’ and subsequently moved, without separate authorization, to consider impeachment.25 impeachment.’’ 28 U.S.C. § 595(c) (emphasis in its search for alternative evidence. Id. at But the overwhelming historical practice to added). And the D.C. Circuit viewed the re- 1564, 1566; see also 3 Hinds’ Precedents §§ 2444– the contrary confirms the Judiciary Com- port as reflecting ‘‘information of the type 45, at 902–04. mittee’s well-considered conclusions in 1974 described in 28 U.S.C. § 595(c).’’ In re Madison In. some cases, the House declined to au- and 1998 that a committee requires specific Guar. Sav. & Loan Ass’n, Div. No. 94–1 (D.C. thorize a committee to investigate impeach- authorization from the House before it may Cir. Spec. Div. July 7, 1998), reprinted in H.R. ment with the aid of compulsory process. In use compulsory process to investigate for Doc. No. 105–331, pt. 1, at 10 (1998). The order 1873, the House authorized the Judiciary Committee ‘‘to inquire whether anything’’ in impeachment purposes. authorizing the transmission of that infor- testimony presented to a different com- mation to the House did not imply that any 3. mittee implicating Vice President Schuyler committee was conducting an impeachment The House has followed the same practice Colfax ‘‘warrants articles of impeachment of investigation. To the contrary, after the in connection with nearly all impeachment any officer of the United States not a mem- House received the information, ‘‘no person investigations involving federal judges. Com- ber of this House, or makes it proper that had access to’’ it until after the House adopt- mittees sometimes studied initial referrals, further investigation should be ordered in ed a resolution referring the matter to the but they waited for authorization from the his case.’’ Cong. Globe, 42d Cong., 3d Sess. Judiciary Committee. H.R. Rep. No. 105–795, full House before conducting any formal im- 1545 (1873); see 3 Hinds’ Precedents § 2510, at at 5. And the House then adopted a second peachment investigation. Three cases from 1016–17. No further investigation was author- the late 1980s departed from that pattern, resolution (Resolution 581) to authorize a ized. A similar sequence occurred in 1917 in formal investigation. In other words, the but the House has returned during the past the case of an impeachment resolution of- three decades to the historical baseline, re- House voted to authorize the Judiciary Com- fered against members of the Federal Re- mittee both to review the Starr evidence and peatedly ensuring that the Judiciary Com- serve Board. See 54 Cong. Rec. 3126–30 (1917) mittee had a proper delegation for each im- to conduct an impeachment investigation. (impeachment resolution); H.R. Rep. No. 64– Neither the D.C. Circuit nor the Judiciary peachment investigation. 1628, at 1 (1917) (noting that following the re- The practice of having the House authorize Committee suggested that any committee ferral of the impeachment resolution, the each specific impeachment inquiry is re- could have taken such action on its own. Committee had reviewed available informa- flected in the earliest impeachment inves- 2. tion and determined that no further pro- tigations involving judges. In 1804, the House The House has historically followed these ceedings were warranted). In 1932, the House considered proposals to impeach two judges: same procedures in considering impeach- referred to the Judiciary Committee a reso- Samuel Chase, an associate justice of the Su- ment resolutions against executive branch lution calling for the investigation of the preme Court, and Richard Peters, a district officers other than the President. In many possible impeachment of Secretary of the judge. See 3 Hinds’ Precedents § 2342, at 711–16. cases, an initial resolution laying out Treasury Andrew Mellon. H.R. Res. 92, 72d There was a ‘‘lengthy debate’’ about whether charges of impeachment or authorizing an Cong. (1932); see also 3 Deschler’s Precedents the evidence was appropriate to warrant the investigation was referred to a select or ch. 14, § 14.1, at 2134–39. The following month, institution of an inquiry. Id. at 712. The standing committee.24 Following such a re- the House approved a resolution dis- House then adopted a resolution appointing ferral, the designated committee reviewed continuing any investigation of the charges. a select committee ‘‘to inquire into the offi- the matter and considered whether to pursue 75 Cong. Rec. 3850 (1932); see also 3 Deschler’s cial conduct’’ of Chase and Peters ‘‘and to re- a formal impeachment inquiry—it did not Precedents ch. 14, § 14.2, at 2139–40. port’’ the committee’s ‘‘opinion whether’’ ei- treat the referral as stand-alone authoriza- Most recently, in the 114th Congress, the ther of the judges had ‘‘so acted, in their ju- tion to conduct an investigation. When a House referred to the Judiciary Committee dicial capacity, as to require the interposi- committee concluded that the charges war- resolutions concerning the impeachment of tion of the constitutional power of this ranted investigation, it reported to the full the Commissioner of the Internal Revenue House.’’ 13 Annals of Cong. 850, 875–76 (1804); House, which then considered whether to Service, John Koskinen. See H.R. Res. 494, 3 Hinds’ Precedents § 2342, at 715. A few days adopt a resolution to authorize a formal in- 114th Cong. (2015); H.R. Res. 828, 114th Cong. later, another resolution ‘‘authorized’’ the vestigation. (2016). Shortly after an attempt to force a committee ‘‘to send for persons, papers, and For example, in March 1867, the House ap- floor vote on one of the resolutions, records.’’ 13 Annals of Cong. at 877; see also 3 proved a resolution directing the Committee Koskinen voluntarily appeared before the Hinds’ Precedents § 2342, at 715. At the conclu- on Public Expenditures ‘‘to inquire into the committee at a hearing. See Impeachment Ar- sion of its investigation, the committee rec- conduct of Henry A. Smythe, collector of the ticles Referred on John Koskinen (Part III): ommended that Chase, but not Peters, be im- port of New York.’’ Cong. Globe, 40th Cong., Hearing Before the H. Comm. on the Judiciary, peached. 3 Hinds’ Precedents § 2343, at 716. The 1st Sess. 132 (1867); see also id. (noting that 114th Cong. 2 (2016). The ranking minority House thereafter agreed to a resolution im- the resolution had been modified following member, Representative John Conyers, ob- peaching Chase. Id. at 717. Congress recessed debate ‘‘so as to leave out that part about served that, despite the title, ‘‘this is not an before the Senate could act, but, during the bringing articles of impeachment’’). Weeks impeachment hearing’’ because, ‘‘[a]ccording next Congress, the House appointed an al- later, the House voted to authorize an im- to parliamentarians of the House past and most identical select committee, which was peachment investigation. Id. at 290 (author- present, the impeachment process does not ‘‘given no power of investigation.’’ Id. §§ 2343 izing the investigating committee to ‘‘send begin until the House actually votes to au- 0944, at 717–18. The committee recommended for persons and papers’’). The House followed thorize this Committee to investigate the revised articles of impeachment against this same procedure in 1916 for U.S. Attorney charges.’’ Id. at 3; see also id. at 30 (similar Chase, which were again adopted by the H. Snowden Marshall. H.R. Res. 90, 64th statement by Rep. Johnson). During the House. Id. § 2344, at 718–19. In 1808, the House Cong. (1916) (initial resolution referred to the hearing, Commissioner Koskinen offered to again separately authorized an investigation Judiciary Committee); H.R. Res. 110, 64th provide a list of supporting witnesses who when it considered whether Peter Bruin, a Cong. (1916) (resolution approving the inves- could be cross-examined ‘‘if the Committee Mississippi territorial judge, should be im- tigation contemplated in the initial resolu- decided it wanted to go to a full-scale impeached for ‘‘neglect of duty and drunken- tion). And the process repeated in 1922 for peachment process, which I understand this ness on the bench.’’ Id. § 2487, at 983–84. A Attorney General Harry Daugherty. H.R. is not.’’ Id. at 45. Two months later, one of member of the House objected ‘‘that it would Res. 425, 67th Cong. (1922) (referring the ini- the impeachment resolutions was briefly ad- hardly be dignified for the Congress to pro- tial resolution to the committee); H.R. Res. dressed on the floor of the House, and again ceed to an impeachment’’ based on the terri- 461, 67th Cong. (1922) (resolution approving referred to the Judiciary Committee, but torial legislature’s referral and proposed the

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00074 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.100 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S361 appointment of a committee ‘‘to inquire into 2019 WL 5485221, at *26 (discussing these in- III. the propriety of impeaching.’’ Id. at 984; see vestigations). All three judges had been Having concluded that a House committee 18 Annals of Cong. 2069 (1808). The House then criminally prosecuted, and two had been con- may not conduct an impeachment investiga- passed a resolution forming a committee to victed. See H.R. Rep. No. 101–36, at 12–13 tion without a delegation of authority, we conduct an inquiry, which included the (1989) (describing Nixon’s prosecution and next consider whether the House provided ‘‘power to send for persons, papers, and conviction); H.R. Rep. No. 100–810, at 7–8, 29– such a delegation to the Foreign Affairs records’’ but, like most inquiries to follow, 31, 38–39 (1988) (describing Hastings’s indict- Committee or to the other committees that did not result in impeachment. 18 Annals of ment and trial and the subsequent decision issued subpoenas pursuant to the asserted Cong. at 2189; 3 Hinds’ Precedents § 2487, at 984. to proceed with a judicial-misconduct pro- impeachment inquiry. During the five weeks Over the course of more than two centuries ceeding in lieu of another prosecution); H.R. between the Speaker’s announcement on thereafter, members of the House introduced Rep. No. 99–688, at 9, 17–20 (1986) (describing September 24 and the adoption of Resolution resolutions to impeach, or to investigate for Claiborne’s prosecution and conviction). In 660 on October 31, the committees issued nu- potential impeachment, dozens more federal the Claiborne inquiry, the committee does merous impeachment-related subpoenas. See judges, and the House continued, virtually not appear to have issued any subpoenas. See supra note 9. We therefore provided advice without exception, to provide an express au- H.R. Rep. No. 99–688, at 4 (noting that the during that period about whether any of the thorization before any committee proceeded committee sent ‘‘[i]nvitational letters to all committees had authority to issue those sub- 26 to exercise investigative powers. In one 1874 witnesses,’’ who apparently cooperated to poenas. Because the House had not adopted case, the Judiciary Committee realized only the Committee’s satisfaction). The com- an impeachment resolution, the answer to after witnesses had traveled from Arkansas mittee did issue subpoenas in the Nixon and that question turned on whether the com- that it could not find any resolution grant- Hastings investigations, yet no witness ap- mittees could issue those subpoenas based ing it compulsory powers to investigate pre- pears to have objected on the ground that upon any preexisting subpoena authority. viously referred charges against Judge Wil- the committee lacked jurisdiction to issue In justifying the subpoenas, the Foreign liam Story. See 2 Cong. Rec. 1825, 3438 (1874); the subpoenas, and at least one witness ap- Affairs Committee and other committees 29 3 Hinds’ Precedents § 2513, at 1023. In order to pears to have requested a subpoena. In pointed to the resolution adopting the Rules ‘‘cure’’ that ‘‘defect,’’ the committee re- those two cases, though, the Judiciary Com- of the House of Representatives, which es- ported a privileged resolution to the floor of mittee effectively compelled production tablish the committees and authorize inves- the House that would grant the committee without any express authorization from the tigations for matters within their jurisdic- 30 ‘‘power to send for persons and papers’’ as House. tion. The committees claimed that Rule XI In the years after these outliers, the Judi- part of the impeachment investigation. 2 confers authority to issue subpoenas in con- ciary Committee returned to the practice of Cong. Rec. at 3438. The House promptly nection with an impeachment investigation. agreed to the resolution, enabling the com- seeking specific authorization from the Although the House has expanded its committee to ‘‘examine’’ the witnesses that day. House before conducting impeachment inves- mittees’ authority in recent decades, the Id. tigations. Most notably, as discussed above, In other cases, however, no full investiga- the Judiciary Committee ‘‘decided that it House Rules continue to reflect the long-es- tion ever materialized. In 1803, John Pick- must receive authorization from the full House tablished distinction between legislative and ering, a district judge, was impeached, but before proceeding’’ with an impeachment in- non-legislative investigative powers. Those the House voted to impeach him without vestigation of President Clinton. H.R. Rep. rules confer legislative oversight jurisdiction conducting any investigation at all, relying No. 105–795, at 24 (emphasis added). And the on committees and authorize the issuance of instead upon documents supplied by Presi- House has used the same practice with re- subpoenas to that end, but they do not grant dent Jefferson. See 3 Hinds’ Precedents § 2319, spect to federal judges.31 Thus, in 2008, the authority to investigate for impeachment at 681–82; see also Lynn W. Turner, The Im- House adopted a resolution authorizing the purposes. While the House committees could peachment of John Pickering, 54 Am. Hist. Judiciary Committee to investigate the im- have sought some information relating to Rev. 485, 491 (1949). Sometimes, the House au- peachment of Judge G. Thomas Porteous, the same subjects in the exercise of their thorized only a preliminary inquiry to deter- Jr., including the grant of subpoena author- legislative oversight authority, the sub- mine whether an investigation would be war- ity. See H.R. Rep. No. 111–427, at 7 (2010); H.R. poenas they purported to issue ‘‘pursuant to ranted. In 1908, for instance, the House asked Res. 1448, 110th Cong. (2008); 154 Cong. Rec. the House of Representatives’ impeachment the Judiciary Committee to consider pro- 19502 (2008). After the Congress expired, the inquiry’’ were not in support of such over- posed articles impeaching Judge Lebbeus House in the next Congress adopted a new sight. We therefore conclude that they were Wilfley of the U.S. Court for China. In the resolution re-authorizing the inquiry, again unauthorized. ensuing hearing, the Representative who had with subpoena authority. See H.R. Res. 15, A. introduced the resolution acknowledged that 111th Cong. (2009); 155 Cong. Rec. 568, 571 The standing committees of the House the committee was not ‘‘authorized to sub- (2009). Several months later, another district trace their general subpoena powers back to poena witnesses’’ and had been authorized to judge, Samuel Kent, pleaded guilty to ob- the House Rules, which the 116th Congress conduct only ‘‘a preliminary examination,’’ struction of justice and was sentenced to 35 adopted by formal resolution. See H.R. Res. 6, which was ‘‘not like an investigation ordi- months of incarceration. See H.R. Rep. 111– 116th Cong. (2019). The House Rules are more narily held by the House,’’ but was instead 159, at 9–13 (2009). The House then adopted a than 60,000 words long, but they do not in- dedicated solely to determining ‘‘whether resolution directing the Judiciary Com- clude the word ‘‘impeachment.’’ The Rules’ you believe it is a case that ought to be in- mittee to investigate impeachment, again silence on that topic is particularly notable vestigated at all.’’ 27 In many other cases, it specifically granting subpoena authority. See when contrasted with the Senate, which has is apparent that—even when impeachment id. at 13; H.R. Res. 424, 111th Cong. (2009); 155 adopted specific ‘‘Rules of Procedure and resolutions had been referred to them—com- Cong. Rec. at 12211–13. Practice’’ for impeachment trials. S. Res. mittees conducted no formal investigation.28 Thus, the House’s long-standing and nearly 479, 99th Cong. (1986).32 The most obvious In 1970, in a rhetorical departure from well- unvarying practice with respect to judicial conclusion to draw from that silence is that established practice, a subcommittee of the impeachment inquiries is consistent with the the current House, like its predecessors, re- Judiciary Committee described itself as in- conclusion that the power to investigate in tained impeachment authority at the level vestigating the impeachment of Justice Wil- support of the House’s ‘‘sole Power of Im- of the full House, subject to potential delega- liam O. Douglas based solely upon an impeachment,’’ U.S. Const. art. I, § 2, cl. 5, may tions in resolutions tailored for that pur- peachment resolution referred to the Judici- not be exercised by a committee without an pose. ary Committee. See 116 Cong. Rec. 11920, 11942 express delegation from the House. In the Rule XI of the Rules of the House affirma- (1970); 3 Deschler’s Precedents ch. 14, §§ 14.14– cases of Judges Nixon and Hastings, the Ju- tively authorizes committees to issue sub- 14.16, at 2151–64; see also Labovitz, Presidential diciary Committee did exercise compulsory poenas, but only for matters within their Impeachment at 182 n.18 (noting that ‘‘[t]he authority despite the absence of any delega- legislative jurisdiction. The provision has Douglas inquiry was the first impeachment tion from the House. But insofar as no party been a part of the House Rules since 1975. See investigation in twenty-five years, and devi- challenged the committee’s authority at the H.R. Res. 988, 93d Cong. § 301 (1974). Clause ation from the older procedural pattern was time, and no court addressed the matter, 2(m)(1) of Rule XI vests each committee with not surprising’’). Yet, the subcommittee did these historical outliers do not undermine the authority to issue subpoenas ‘‘[f]or the not resort to any compulsory process during the broader constitutional principle. As the purpose of carrying out any of its functions its inquiry, and it did not recommend im- Supreme Court observed in Noel Canning, and duties under this rule and rule X (includ- peachment. 3 Deschler’s Precedents ch. 14, ‘‘when considered against 200 years of settled ing any matters referred to it under clause 2 §§ 14.15–14.16, at 2158–63. Accordingly, the practice,’’ a ‘‘few scattered examples’’ are of rule XII).’’ Rule XI, cl. 2(m)(1); see also committee did not actually exercise any of rightly regarded ‘‘as anomalies.’’ 573 U.S. at Rule X, cl. 11(d)(1) (making clause 2 of Rule the investigative powers of the House. 538. They do not call into question the sound- XI applicable to HPSCI). The committees In the late 1980s, the House Judiciary Com- ness of the House’s otherwise consistent his- therefore have subpoena power to carry out mittee considered the impeachment of three torical practice, much less the constitu- their authorities under three rules: Rule X, district-court judges without any express au- tional requirement that a committee exer- Rule XI, and clause 2 of Rule XII. thorization from the House: Walter Nixon, cise the constitutional powers of the House Rule X does not provide any committee Alcee Hastings, and Harry Claiborne. See In only with an express delegation from the with jurisdiction over impeachment. Rule X re Application of the Comm. on the Judiciary, House itself. establishes the ‘‘standing committees’’ of

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00075 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.102 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S362 CONGRESSIONAL RECORD — SENATE January 21, 2020 the House and vests them with ‘‘their legis- H.R. Res. 658, 95th Cong. § 1 (1977) (resolution Clinton for impeachment purposes. H.R. Rep. lative jurisdictions.’’ Rule X, cl. 1. The juris- establishing HPSCI, explaining its purpose No. 105–795, at 24 (emphasis added). And, even diction of each committee varies in subject as ‘‘provid[ing] vigilant legislative oversight before Rule XI was adopted, the House had matter and scope. While the Committee on over the intelligence and intelligence-related conferred on the Judiciary Committee a ma- Ethics, for example, has jurisdiction over activities of the United States’’ (emphasis terially similar form of investigative author- only ‘‘[t]he Code of Official Conduct’’ (Rule added)). Again, those powers sound in legis- ity (including subpoena power) in 1973.35 The X, cl. 1(g)), the jurisdiction of the Foreign lative oversight, and nothing in the Rules Judiciary Committee nevertheless recog- Affairs Committee spans seventeen subjects, suggests that HPSCI has any generic delega- nized that those subpoena powers did not au- including ‘‘[r]elations of the United States tion of the separate power of impeachment. thorize it to conduct an impeachment in- with foreign nations generally,’’ Consistent with the foregoing textual anal- quiry about President Nixon. In other words, ‘‘[i]ntervention abroad and declarations of ysis, Rule X has been seen as conferring leg- the Rules Committee’s recent interpretation war,’’ and ‘‘[t]he American National Red islative oversight authority on the House’s of clause 2(m) (which it did not explain in its Cross’’ (Rule X, cl. 1(i)(1), (9), (15)). The rule committees, without any suggestion that report) cannot be reconciled with the Judici- likewise spells out the jurisdiction of the impeachment authorities are somehow in- ary Committee’s well-reasoned conclusion, Committee on Oversight and Reform (Rule cluded therein. The Congressional Research in both 1974 and 1998, that Rule XI (and its X, cl. 1(n), cl. 3(i)), and the jurisdiction of the Service describes Rule X as ‘‘contain[ing] materially similar predecessor) do not confer Judiciary Committee (Rule X, cl. 1(l)). the legislative and oversight jurisdiction of any standing authority to conduct an im- Clause 11 of Rule X establishes HPSCI and each standing committee, several clauses on peachment investigation. vests it with jurisdiction over ‘‘[t]he Central committee procedures and operations, and a In modern practice, the Speaker has re- Intelligence Agency, the Director of Na- clause specifically addressing the jurisdic- ferred proposed resolutions calling for the tional Intelligence, and the National Intel- tion and operation of the Permanent Select impeachment of a civil officer to the Judici- ligence Program’’ and over ‘‘[i]ntelligence Committee on Intelligence.’’ Michael L. ary Committee. See Jefferson’s Manual § 605, and intelligence-related activities of all Koempel & Judy Schneider, Cong. Research at 324. Consistent with this practice, the other departments and agencies.’’ Rule X, cl. Serv., R41605, House Standing Committees’ Speaker referred the Sherman resolution 11(a)(1), (b)(1)(A)–(B). Rules on Legislative Activities: Analysis of (H.R. Res. 13, 116th Cong.) to the Judiciary The text of Rule X confirms that it ad- Rules in Effect in the 114th Congress 2 (Oct. 11, Committee, because it called for the im- dresses the legislative jurisdiction of the 2016); see also Dolan, Congressional Oversight peachment of President Trump. Yet the re- standing committees. After defining each Manual at 25 (distinguishing a committee in- ferral itself did not grant authority to con- standing committee’s subject-matter juris- quiry with ‘‘a legislative purpose’’ from in- duct an impeachment investigation. House diction, the Rule provides that ‘‘[t]he var- quiries conducted under ‘‘some other con- committees have regularly received referrals ious standing committees shall have general stitutional power of Congress, such as the and conducted preliminary inquiries, with- oversight responsibilities’’ to assist the authority’’ to ‘‘conduct impeachment pro- out compulsory process, for the purpose of House in its analysis of ‘‘the application, ad- ceedings’’). In the chapter of Deschler’s Prece- determining whether to recommend that the ministration, execution, and effectiveness of dents devoted to explaining the House open a formal impeachment investiga- Federal laws’’ and of the ‘‘conditions and cir- ‘‘[i]nvestigations and [i]nquiries’’ by the tion. See supra Part II.C. Should a committee cumstances that may indicate the necessity House and its committees, the Parliamen- determine that a formal inquiry is war- or desirability of enacting new or additional tarian repeatedly notes that impeachment ranted, then the committee recommends legislation,’’ as well as to assist the House in investigations and other non-legislative pow- that the House adopt a resolution that au- its ‘‘formulation, consideration, and enact- ers are discussed elsewhere. See 4 Deschler’s thorizes such an investigation, confers sub- ment of changes in Federal laws, and of such Precedents ch. 15, § 1, at 2283; id. § 14, at 2385 poena power, and provides special process to additional legislation as may be necessary or n.12; id. § 16, at 2403 & n.4. the target of the investigation. The Judici- appropriate.’’ Rule X, cl. 2(a)(1)–(2). The com- Rule X concerns only legislative oversight, ary Committee followed precisely that pro- mittees are to conduct oversight ‘‘on a con- and Rule XI does not expand the committees’ cedure in connection with the impeachment tinuing basis’’ ‘‘to determine whether laws subpoena authority any further. That rule investigations of Presidents Nixon and Clin- and programs addressing subjects within the rests upon the jurisdiction granted in Rule ton, among many others. By referring an im- jurisdiction of a committee’’ are imple- X. See Rule XI, cl. 1(b)(1) (‘‘Each committee peachment resolution to the House Judiciary mented as Congress intends ‘‘and whether may conduct at any time such investigations Committee, the Speaker did not expand that they should be continued, curtailed, or and studies as it considers necessary or ap- committee’s subpoena authority to cover a eliminated.’’ Rule X, cl. 2(b)(1). Those are all propriate in the exercise of its responsibil- formal impeachment investigation. In any functions traditionally associated with legis- ities under rule X.’’). Nor does Rule XII con- event, no impeachment resolution was ever lative oversight, not the separate power of fer any additional jurisdiction. Clause 2(a) referred to the Foreign Affairs Committee, impeachment. See supra Part II.A. Clause 3 of states that ‘‘[t]he Speaker shall refer each HPSCI, or the Committee on Oversight and Rule X further articulates ‘‘[s]pecial over- bill, resolution, or other matter that relates Reform. Rule XII thus could not provide any sight functions’’ with respect to particular to a subject listed under a standing com- authority to those committees in support of subjects for certain committees; for exam- mittee named in clause 1 of rule X[.]’’ Rule the impeachment-related subpoenas issued ple, the Committee on Foreign Affairs ‘‘shall XII, cl. 2(a). The Speaker’s referral authority before October 31. review and study on a continuing basis laws, under Rule XII is thus limited to matters Accordingly, when those subpoenas were programs, and Government activities relat- within a committee’s Rule X legislative ju- issued, the House Rules did not provide au- ing to . . . intelligence activities relating risdiction. See 18 Deschler’s Precedents app. at thority to any of those committees to issue to foreign policy,’’ Rule X, cl. 3(f). And 578 (‘‘All committees were empowered by ac- subpoenas in connection with potential im- clause 4 addresses ‘‘[a]dditional functions of tual language of the Speaker’s referral to peachment. In reaching this conclusion, we committees,’’ including functions related to consider only ‘such provisions of the meas- do not question the broad authority of the the review of appropriations and the special ure as fall within their respective jurisdic- House of Representatives to determine how authorities of the Committee on Oversight tions under Rule X.’’’). Accordingly, the and when to conduct its business. See U.S. and Reform, Rule X, cl. 4(a)(1), (c)(1). But Speaker may not expand the jurisdiction of a Const. art. I, § 5, cl. 2. As the Supreme Court none of the ‘‘[s]pecial oversight’’ or committee by referring a bill or resolution has recognized, ‘‘‘all matters of method are ‘‘[a]dditional’’ functions specified in clauses falling outside the committee’s Rule X au- open to the determination’’’ of the House, 3 and 4 includes any reference to the House’s thority.33 ‘‘as long as there is ‘a reasonable relation be- impeachment power. In reporting Resolution 660 to the House, tween the mode or method of proceeding es- The powers of HPSCI are addressed in the Rules Committee expressed the view that tablished by the rule and the result which is clause 11 of Rule X. Unlike the standing clause 2(m) of Rule XI gave standing com- sought to be attained,’ and the rule does not committees, HPSCI is not given ‘‘[g]eneral mittees the authority to issue subpoenas in ‘ignore constitutional restraints or violate oversight responsibilities’’ in clause 2. But support of impeachment inquiries. See H.R. fundamental rights.’’’ Noel Canning, 573 U.S. clause 3 gives it the ‘‘[s]pecial oversight Rep. No. 116–266, at 18 (2019). But the com- at 551 (quoting United States v. Ballin, 144 functions’’ of ‘‘review[ing] and study[ing] on mittee did not explain which terms of the U.S. 1, 5 (1892)). The question, however, is not a continuing basis laws, programs, and ac- rule provide such authority. To the contrary, ‘‘what rules Congress may establish for its tivities of the intelligence community’’ and the committee simply asserted that the rule own governance,’’ but ‘‘rather what rules the of ‘‘review[ing] and study[ing] . . . the granted such authority and that the text of House has established and whether they have sources and methods of’’ specified entities Resolution 660 departed from its predecessors been followed.’’ Christoffel v. United States, that engage in intelligence activities. Rule on account of amendments to clause 2(m) 338 U.S. 84, 88–89 (1949); see also Yellin v. X, cl. 3(m). And clause 11 further provides that were adopted after the ‘‘Clinton and United States, 374 U.S. 109, 121 (1963) (stating that proposed legislation about intelligence Nixon impeachment inquiry resolutions.’’ Id. that a litigant ‘‘is at least entitled to have activities will be referred to HPSCI and that Yet clause 2(m) of Rule XI was adopted two the Committee follow its rules and give him HPSCI shall report to the House ‘‘on the na- decades before the Clinton inquiry.34 Even consideration according to the standards it ture and extent of the intelligence and intel- with that authority in place, the Judiciary has adopted in’’ the relevant rule); United ligence-related activities of the various de- Committee recognized in 1998 that it ‘‘must States v. Smith, 286 U.S. 6, 33 (1932) (‘‘As the partments and agencies of the United receive authorization from the full House be- construction to be given to the rules affects States.’’ Rule X, cl. 11(b)(1), (c)(1); see also fore proceeding’’ to investigate President persons other than members of the Senate,

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00076 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.103 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S363 the question presented is of necessity a judi- production of documents and testimony that ess. But the Executive Branch was not con- cial one.’’). Statements by the Speaker or by the committees avowedly intended to use for fronted with that situation. The committee committee chairmen are not statements of an unauthorized impeachment inquiry. We chairmen unequivocally attempted to con- the House itself. Cf. Noel Canning, 573 U.S. at advised that, under the circumstances of duct an impeachment inquiry into the Presi- 552–53 (relying on statements and actions of these subpoenas, the committees could not dent’s actions, without the House, which has the Senate itself, as reflected in the Journal do so. the ‘‘sole Power of Impeachment,’’ having of the Senate and the Congressional Record, Any congressional inquiry ‘‘must be re- authorized such an investigation. Absent to determine when the Senate was ‘‘in ses- lated to, and in furtherance of, a legitimate such an authorization, the committee chairs’ sion’’). Our conclusion here turned upon task of the Congress.’’ Watkins, 354 U.S. at passing mention of ‘‘oversight and legisla- nothing more, and nothing less, than the 187. The Executive Branch need not presume tive jurisdiction’’ did not cure that funda- rules and resolutions that had been adopted that such a purpose exists or accept a mental defect. by a majority vote of the full House.36 ‘‘makeweight’’ assertion of legislative juris- C. The text of those provisions determined diction. Mazars USA, 940 F.3d at 725–26, 727; We next address whether the House ratified whether the House had delegated the nec- see also Shelton v. United States, 404 F.2d 1292, any of the previous committee subpoenas essary authority. See id. at 552 (‘‘[O]ur def- 1297 (D.C. Cir. 1968) (‘‘In deciding whether the when it adopted Resolution 660 on October erence to the Senate cannot be absolute. purpose is within the legislative function, 31, 2019—after weeks of objections from the When the Senate is without the capacity to the mere assertion of a need to consider ‘re- Executive Branch and many members of medial legislation’ may not alone justify an act, under its own rules, it is not in session Congress to the committees’ efforts to con- investigation accompanied with compulsory even if it so declares.’’). Thus, the Supreme duct an unauthorized impeachment inquiry. process[.]’’). Indeed, ‘‘an assertion from a Court has repeatedly made clear that a tar- Resolution 660 provides that six committees committee chairman may not prevent the get of the House’s compulsory process may of the House ‘‘are directed to continue their Executive from confirming the legitimacy of question whether a House resolution has ac- ongoing investigations as part of the exist- an investigative request.’’ Congressional Com- tually conferred the necessary powers upon a ing House of Representatives inquiry into mittee’s Request for the President’s Tax Returns committee, because the committee’s ‘‘right whether sufficient grounds exist for the Under 26 U.S.C. § 6103(f), 43 Op. O.L.C. _, at *20 to exact testimony and to call for the pro- House of Representatives to exercise its Con- (June 13, 2019). To the contrary, ‘‘a threshold duction of documents must be found in [the stitutional power to impeach Donald John inquiry that should be made upon receipt of resolution’s] language.’’ Rumely, 345 U.S. at Trump, President of the United States of 44; see also Watkins, 354 U.S. at 201. In Rumely, any congressional request for information is whether the request is supported by any le- America.’’ Resolution 660, § 1. The resolution the Court expressly rejected the argument further prescribes certain procedures by that the House had confirmed the commit- gitimate legislative purpose.’’ Response to Congressional Requests for Information Regard- which HPSCI and the Judiciary Committee tee’s jurisdiction by adopting a resolution may conduct hearings in connection with the that merely held the witness in contempt ing Decisions Made Under the Independent Counsel Act, 10 Op. O.L.C. 68, 74 (1986); see also investigation defined by that resolution. after the fact. As the Court explained, what Resolution 660 does not speak at all to the Congressional Requests for Confidential Execu- was said ‘‘after the controversy had arisen committees’ past actions or seek to ratify tive Branch Information, 13 Op. O.L.C. 153, 159 regarding the scope of the resolution . . . (1989) (recognizing that the constitutionally any subpoena previously issued by the House had the usual infirmity of post litem motam, mandated accommodation process ‘‘requires committees. See Trump v. Mazars USA, LLP, self-serving declarations.’’ 345 U.S. at 48. In that each branch explain to the other why it 941 F.3d 1180, 1182 (D.C. Cir. 2019) (Rao, J., other words, even a vote of the full House believes its needs to be legitimate’’). dissenting from the denial of rehearing en could not ‘‘enlarge[]’’ a committee’s author- Here, the committee chairmen made clear banc); see also Exclusion of Agency Counsel ity after the fact for purposes of finding that upon issuing the subpoenas that the commit- from Congressional Depositions in the Impeach- a witness had failed to comply with the obli- tees were interested in the requested mate- ment Context, 43 Op. O.L.C. _, at *5 (Nov. 1, gations imposed by the subpoena. Id. rials to support an investigation into the po- 2019). The resolution ‘‘direct[s]’’ HPSCI and Here, the House committees claiming to tential impeachment of the President, not to other committees to ‘‘continue’’ their inves- investigate impeachment issued subpoenas uncover information necessary for potential tigations, and the Rules Committee appar- before they had received any actual delega- legislation within their respective areas of ently assumed, incorrectly in our view, that tion of impeachment-related authority from legislative jurisdiction. In marked contrast earlier subpoenas were legally valid. See H.R. the House. Before October 31, the commit- with routine oversight, each of the sub- Rep. No. 116–266, at 3 (‘‘All subpoenas to the tees relied solely upon statements of the poenas was accompanied by a letter signed Executive Branch remain in full force.’’). But Speaker, the committee chairmen, and the by the chairs of three different committees, the resolution’s operative language does not Judiciary Committee, all of which merely who transmitted a subpoena ‘‘[p]ursuant to address any previously issued subpoenas or asserted that one or more House committees the House of Representatives’ impeachment provide the imprimatur of the House to give had already been conducting a formal im- inquiry’’ and recited that the documents those subpoenas legal force. peachment inquiry. There was, however, no would ‘‘be collected as part of the House’s And the House knows how to ratify exist- House resolution actually delegating such 37 impeachment inquiry,’’ and that they would ing subpoenas when it chooses to do so. On authority to any committee, let alone one be ‘‘shared among the Committees, as well as July 24, 2019, the House adopted a resolution that did so with ‘‘sufficient particularity’’ to with the Committee on the Judiciary as ap- that expressly ‘‘ratif[ied] and affirm[ed] all compel witnesses to respond. Watkins, 354 propriate.’’ See supra note 9 and accom- current and future investigations, as well as U.S. at 201; cf. Gojack v. United States, 384 panying text. Apart from their token invoca- all subpoenas previously issued or to be issued U.S. 702, 716–17 (1966). At the opening of this tions of ‘‘oversight and legislative jurisdic- in the future,’’ related to certain enumerated Congress, the House had not chosen to confer tion,’’ the letters offered no hint of any leg- subjects within the jurisdiction of standing investigative authority over impeachment islative purpose. The committee chairmen or select committees of the House ‘‘as estab- upon any committee, and therefore, no were therefore seeking to do precisely what lished by the Constitution of the United House committee had authority to compel they said—compel the production of infor- States and rules X and XI of the Rules of the the production of documents or testimony in mation to further an impeachment inquiry. House of Representatives.’’ H.R. Res. 507, furtherance of an impeachment inquiry that In reaching this conclusion, we do not fore- 116th Cong. § 1 (2019) (emphasis added). There, it was not authorized to conduct. close the possibility that the Foreign Affairs as here, the House acted in response to ques- B. Committee or the other committees could tions regarding ‘‘the validity of . . . [com- Lacking a delegation from the House, the have issued similar subpoenas in the bona mittee] investigations and subpoenas.’’ Id. committees could not compel the production fide exercise of their legislative oversight ju- pmbl. Despite that recent model, Resolution of documents or the testimony of witnesses risdiction, in which event the requests would 660 contains no comparable language seeking for purposes of an impeachment inquiry. Be- have been evaluated consistent with the to ratify previously issued subpoenas. The cause the first impeachment-related sub- long-standing confidentiality interests of the resolution directs certain committees to poena the September 27 subpoena from the Executive Branch. See Watkins, 354 U.S. at ‘‘continue’’ investigations, and it specifies Foreign Affairs Committee—rested entirely 187 (recognizing that Congress’s general in- procedures to govern future hearings, but upon the purported impeachment inquiry, see vestigative authority ‘‘comprehends probes nothing in the resolution looks backward to Three Chairmen’s Letter, supra note 2, at 1, into departments of the Federal Government actions previously taken. Accordingly, Reso- it was not enforceable. See, e.g., Rumely, 345 to expose corruption, inefficiency or waste’’); lution 660 did not ratify or otherwise author- U.S. at 44. Perhaps recognizing this infir- McGrain, 273 U.S. at 179–80 (observing that it ize the impeachment-related subpoenas mity, the committee chairmen invoked not is not ‘‘a valid objection to the investigation issued before October 31, which therefore merely the impeachment inquiry in connec- that it might possibly disclose crime or still had no compulsory effect on their re- tion with subsequent impeachment-related wrongdoing on [the Attorney General’s] cipients. subpoenas but also the committees’ ‘‘over- part’’). Should the Foreign Affairs Com- IV. sight and legislative jurisdiction.’’ See supra mittee, or another committee, articulate a Finally, we address some of the con- note 9 and accompanying text. That asser- legitimate oversight purpose for a future in- sequences that followed from our conclusion tion of dual authorities presented the ques- formation request, the Executive Branch that the committees’ pre-October 31 im- tion whether the committees could leverage would assess that request as part of the con- peachment-related subpoenas were unauthor- their oversight jurisdiction to require the stitutionally required accommodation proc- ized. First, because the subpoenas exceeded

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00077 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.104 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S364 CONGRESSIONAL RECORD — SENATE January 21, 2020 the committees’ investigative authority and the appropriate protection of privileged in- testimony in support of the House’s ‘‘sole lacked compulsory effect, the committees formation during the deposition. See id. at Power of Impeachment.’’ U.S. Const. art. I, were mistaken in contending that the recipi- *4–5. In addition, we have concluded that the § 2, cl. 5. The House had not authorized such ents’ ‘‘failure or refusal to comply with the testimonial immunity of the President’s sen- an investigation in connection with the im- subpoena [would] constitute evidence of ob- ior advisers ‘‘applies in an impeachment in- peachment-related subpoenas issued before struction of the House’s impeachment inquiry just as it applies in a legislative over- October 31, 2019, and the subpoenas therefore quiry.’’ Three Chairmen’s Letter, supra note sight inquiry.’’ Letter for Pat A. Cipollone, had no compulsory effect. The House’s adop- 2, at 1.38 As explained at length above, when Counsel to the President, from Steven A. tion of Resolution 660 did not alter the legal the subpoenas were issued, there was no Engel, Assistant Attorney General, Office of status of those subpoenas, because the reso- valid impeachment inquiry. To the extent Legal Counsel at 2 (Nov. 3, 2019). lution did not ratify them or otherwise ad- that the committees’ subpoenas sought in- Thus, even when the House takes the steps dress their terms. formation in support of an unauthorized im- necessary to authorize a committee to inves- Please let us know if we may be of further peachment inquiry, the failure to comply tigate impeachment and compel the produc- assistance. with those subpoenas was no more punish- tion of needed information, the Executive STEVEN A. ENGEL, able than were the failures of the witnesses Branch continues to have legitimate inter- Assistant Attorney General. in Watkins, Rumely, Kilbourn, and Lamont to ests to protect. The Constitution does not 1. Nancy Pelosi, Speaker of the House, answer questions that were beyond the scope oblige either branch of government to sur- Press Release: Pelosi Remarks Announcing Im- of those committees’ authorized jurisdiction. render its legitimate prerogatives, but ex- peachment Inquiry (Sept. 24, 2019), See Watkins, 354 U.S. at 206, 215 (holding that pects that each branch will negotiate in good www.speaker.gov/newsroom/92419-0 (‘‘Pelosi conviction for contempt of Congress was in- faith with mutual respect for the needs of Press Release’’). valid because, when the witness failed to an- the other branch. See United States v. Am. Tel. 2. Letter for Michael R. Pompeo, Secretary swer questions, the House had not used suffi- & Tel. Co., 567 F.2d 121, 127 (D.C. Cir. 1977) of State, from Eliot L. Engel, Chairman, cient ‘‘care . . . in authorizing the use of (‘‘[E]ach branch should take cognizance of an Committee on Foreign Affairs, U.S. House of compulsory process’’ and the committee had implicit constitutional mandate to seek op- Representatives, Adam Schiff, Chairman, not shown that the information was perti- timal accommodation through a realistic Permanent Select Committee on Intel- nent to a subject within ‘‘the mission[] dele- evaluation of the needs of the conflicting ligence, U.S. House of Representatives, and gated to’’ it by the House); Rumely, 345 U.S. branches in the particular fact situation.’’); Elijah E. Cummings, Chairman, Committee at 42–43, 48 (affirming reversal of conviction see also Memorandum for the Heads of Execu- on Oversight & Reform, U.S. House of Rep- for contempt of Congress because it was not tive Departments and Agencies from Presi- resentatives at 1 (Sept. 27, 2019) (‘‘Three clear at the time of questioning that ‘‘the dent Ronald Reagan, Re: Procedures Gov- Chairmen’s Letter’’). committee was authorized to exact the infor- erning Responses to Congressional Requests for 3. Although volume 3 of Deschler’s Prece- mation which the witness withheld’’); Information (Nov. 4, 1982). The two branches dents was published in 1979, our citations of Kilbourn, 103 U.S. at 196 (sustaining action should work to identify arrangements in the Deschler’s Precedents use the continuously brought by witness for false imprisonment context of the particular requests of an in- paginated version that is available at because the committee ‘‘had no lawful au- vestigating committee that accommodate www.govinfo.gov/collection/precedents-of- thority to require Kilbourn to testify as a both the committee’s needs and the Execu- the-house. 4. Impeachment Articles Referred on John witness beyond what he voluntarily chose to tive Branch’s interests. tell’’); Lamont, 18 F.R.D. at 37 (dismissing in- For these reasons, the House cannot plau- Koskinen (Part III): Hearing Before the H. dictment for contempt of Congress in part sibly claim that any executive branch offi- Comm. on the Judiciary, 114th Cong. 3 (2016). 5. This opinion memorializes the advice we because the indictment did not sufficiently cial engaged in ‘‘obstruction’’ by failing to gave about subpoenas issued before October allege, among other things, ‘‘that the [Per- comply with committee subpoenas, or direct- 31. We separately addressed some subpoenas manent Subcommittee on Investigations] ing subordinates not to comply, in order to issued after that date. See, e.g., Letter for . . . was duly empowered by either House of protect the Executive Branch’s legitimate Congress to conduct the particular inquiry’’ Pat A. Cipollone, Counsel to the President, interests in confidentiality and the separa- or ‘‘that the inquiry was within the scope of from Steven A. Engel, Assistant Attorney tion of powers. We explained thirty-five the authority granted to the General, Office of Legal Counsel (Nov. 7, 2019) years ago that ‘‘the Constitution does not [sub]committee’’). That alone suffices to pre- (subpoena to Mick Mulvaney); Letter for Pat permit Congress to make it a crime for an of- vent noncompliance with the subpoenas from A. Cipollone, Counsel to the President, from ficial to assist the President in asserting a constituting ‘‘obstruction of the House’s im- Steven A. Engel, Assistant Attorney Gen- constitutional privilege that is an integral peachment inquiry.’’ eral, Office of Legal Counsel (Nov. 3, 2019) part of the President’s responsibilities under Second, we note that whether or not the (subpoena to John Eisenberg); Exclusion of the Constitution.’’ Prosecution for Contempt of impeachment inquiry was authorized, there Agency Counsel from Congressional Depositions Congress of an Executive Branch Official Who were other, independent grounds to support in the Impeachment Context, 43 Op. O.L.C. _ Has Asserted a Claim of Executive Privilege, 8 directions by the Executive Branch that wit- (Nov. 1, 2019). Op. O.L.C. 101, 140 (1984). Nor may Congress nesses not appear in response to the commit- 6. U.S. House of Representatives Com- ‘‘utilize its inherent ‘civil’ contempt powers tees’ subpoenas. We recently advised you mittee on the Judiciary, Press Release: House to arrest, bring to trial, and punish an execu- that executive privilege continues to be Judiciary Committee Unveils Investigation into tive official who assert[s] a Presidential available during an impeachment investiga- Threats Against the Rule of Law (Mar. 4, 2019), claim of executive privilege.’’ Id. at 140 n.42. tion. See Exclusion of Agency Counsel from judiciary.house.gov/news/press-releases/ We have reaffirmed those fundamental con- Congressional Depositions in the Impeachment house-judiciary-committee-unveils-inves- clusions in each of the subsequent decades.39 Context, 43 Op. O.L.C. __, at *2–5. The mere tigation-threats-against-rule-law; see also The constitutionally required accommoda- existence of an impeachment investigation Letter for the White House, c/o Pat tion process, of course, is a two-way street. does not eliminate the President’s need for Cipollone, from Jerrold Nadler, Chairman, In connection with this investigation, the confidentiality in connection with the per- Committee on the Judiciary, U.S. House of House committees took the unprecedented formance of his duties. Just as in the context Representatives (Mar. 4, 2019). steps of investigating the impeachment of a of a criminal trial, a dispute over a request 7. On June 11, 2019, the full House adopted President without any authorization from for privileged information in an impeach- Resolution 430. Its first two clauses author- the full House; without the procedural pro- ment investigation must be resolved in a ized the Judiciary Committee to file a law- tections provided to Presidents Nixon and manner that ‘‘preserves the essential func- suit to enforce subpoenas against Attorney Clinton, see supra note 12; and with express tions of each branch.’’ United States v. Nixon, General William Barr and former White threats of obstruction charges and unconsti- 418 U.S. 683, 707 (1974). Thus, while a com- House Counsel Donald McGahn and pur- tutional demands that officials appear and mittee ‘‘may be able to establish an interest ported to authorize the Bipartisan Legal Ad- provide closed-door testimony about privi- justifying its requests for information, the visory Group to approve future litigation. leged matters without the assistance of exec- Executive Branch also has legitimate inter- See H.R. Res. 430, 116th Cong. (2019). The next utive branch counsel. Absent any effort by ests in confidentiality, and the resolution of clause of the resolution then stated that, ‘‘in the House committees to accommodate the these competing interests requires a careful connection with any judicial proceeding Executive Branch’s legitimate concerns with balancing of each branch’s need in the con- brought under the first or second resolving the unprecedented nature of the committees’ text of the particular information sought.’’ clauses, the chair of any standing or perma- actions, it was reasonable for executive Exclusion of Agency Counsel from Congres- nent select committee exercising authority branch officials to decline to comply with sional Depositions in the Impeachment Context, thereunder has any and all necessary author- the subpoenas addressed to them. 43 Op. O.L.C. __, at *4. ity under Article I of the Constitution.’’ Id. Accordingly, we recognized, in connection V. The resolution did not mention ‘‘impeach- with HPSCI’s impeachment investigation For the reasons set forth above, we con- ment’’ and, by its terms, authorized actions after October 31, that the committee may clude that the House must expressly author- only in connection with the litigation au- not compel an executive branch witness to ize a committee to conduct an impeachment thorized ‘‘under the first or second resolving appear for a deposition without the assist- investigation and to use compulsory process clauses.’’ On the same day that the House ance of agency counsel, when that counsel is in that investigation before the committee adopted Resolution 430, Speaker Pelosi stat- necessary to assist the witness in ensuring may compel the production of documents or ed that the House’s Democratic caucus was

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00078 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.105 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S365 ‘‘not even close’’ to an impeachment inquiry. dents, the House committees did not provide id. The House committee considering the pe- Rep. Nancy Pelosi (D-CA) Continues Resisting President Trump with any right to attend, tition about Turner agreed with Lee’s sug- Impeachment Inquiry, CNN (June 11, 2019), participate in, or cross-examine witnesses in gestion and recommended that the House transcripts.cnn.com/TRANSCRIPTS/1906/11/ connection with the impeachment-related take no further action. See Inquiry into the cnr.04 html. depositions conducted by the three commit- Official Conduct of a Judge of the Supreme 8. While the House has delegated to the Bi- tees before October 31. Resolution 660 simi- Court of the Northwestern Territory (Feb. 27, partisan Legal Advisory Group the ability to larly did not provide any such rights with re- 1797), reprinted in 1 Am. State Papers: Misc. ‘‘articulate[ ] the institutional position of ’’ spect to any of the public hearings conducted at 157. the House, it has done so only for purposes of by HPSCI, limiting the President’s oppor- 16. After the House impeached Senator ‘‘litigation matters.’’ H.R. Rule II, cl. 8(b). tunity to participate to the Judiciary Com- Blount, the Senate voted to dismiss the Therefore, neither the group, nor the House mittee, which did not itself participate in de- charges on the ground that a Senator is not counsel implementing that group’s direc- veloping the investigative record upon which a civil officer subject to impeachment. See 3 tions, could assert the House’s authority in the articles of impeachment were premised. Hinds’ Precedents § 2318, at 678–80. connection with an impeachment investiga- See H.R. Res. 660, 116th Cong. § 4(a); 165 Cong. 17. A 2007 overview concluded that ‘‘[t]here tion, which is not a litigation matter. Rec. E1357 (daily ed. Oct. 29, 2019) (‘‘Impeach- have been approximately 94 identifiable im- 9. E.g., Letter for John Michael Mulvaney, ment Inquiry Procedures in the Committee peachment-related inquiries conducted by Acting Chief of Staff to the President, from on the Judiciary’’). Congress[.]’’ H.R. Doc. No. 109–153, at 115 Elijah E. Cummings, Chairman, Committee 13. In denying the congressional request (2007). Since 2007, two more judges have been on Oversight & Reform, U.S. House of Rep- before him, President Polk suggested, in the impeached following authorized investiga- resentatives, Adam B. Schiff, Chairman, Per- equivalent of dictum, that, during an im- tions. manent Select Committee on Intelligence, peachment inquiry, ‘‘all the archives and pa- 18. The district court’s erroneous conclu- U.S. House of Representatives, and Eliot L. pers of the Executive departments, public or sions rested upon the arguments offered by Engel, Chairman, Committee on Foreign Af- private, would be subject to the inspection the House Judiciary Committee, which re- fairs, U.S. House of Representatives at 1 and control of a committee of their body.’’ lied principally upon the judicial outliers (Oct. 4, 2019); Letter for Mark T. Esper, Sec- Cong. Globe, 29th Cong., 1st Sess. 698 (1846). from the 1980s, a misunderstanding of the retary of Defense, from Adam B. Schiff, That statement, however, dramatically un- Nixon impeachment inquiry, and a Chairman, Permanent Select Committee on derstates the degree to which executive misreading of the committee’s subpoena Intelligence, U.S. House of Representatives, privilege remains available during an im- power under the House Rules. See Applica- Eliot L. Engel, Chairman, Committee on peachment investigation to protect confiden- tion at 33–34, In re Application of the Comm. on Foreign Affairs, U.S. House of Representa- tiality interests necessary to preserve the es- the Judiciary (D.D.C. July 26, 2019); Reply of tives, and Elijah E. Cummings, Chairman, sential functions of the Executive Branch. the Committee on the Judiciary, U.S. House Committee on Oversight & Reform, U.S. See Exclusion of Agency Counsel from Congres- of Representatives, in Support of Its Applica- House of Representatives at 1 (Oct. 7, 2019); sional Depositions in the Impeachment Context, tion for an Order Authorizing the Release of Letter for Gordon Sondland, U.S. Ambas- 43 Op. O.L.C. _, at *3 & n.1 (Nov. 1, 2019). In Certain Grand Jury Materials, at 16 n.19, In sador to the European Union, from Adam B. a prior opinion, this Office viewed Polk as re Application of the Comm. on the Judiciary Schiff, Chairman, Permanent Select Com- acknowledging the continued availability of (D.D.C. Sept. 30, 2019). HPSCI and the Judici- mittee on Intelligence, U.S. House of Rep- executive privilege, because we read Polk’s ary Committee later reiterated these argu- resentatives, Elijah E. Cummings, Chairman, preceding sentence as ‘‘indicat[ing]’’ that, ments in their reports, each contending that Committee on Oversight & Reform, U.S. even in the impeachment context, ‘‘the Ex- executive branch officials had ‘‘obstructed’’ House of Representatives, and Eliot L. ecutive branch ‘would adopt all wise pre- the House’s impeachment inquiry by declin- Engel, Chairman, Committee on Foreign Af- cautions to prevent the exposure of all such ing to comply with the pre-October 31 im- fairs, U.S. House of Representatives at 1 matters the publication of which might inju- peachment-related subpoenas. H.R. Rep. No. (Oct. 8, 2019); Letter for James Richard riously affect the public interest, except so 116–335, at 168–72, 175–77 (2019); H.R. Rep. No. ‘‘Rick’’ Perry, Secretary of Energy, from far as this might be necessary to accomplish 116–346, at 10, 13–16 (2019). But those reports Eliot L. Engel, Chairman, Committee on the great ends of public justice.’ ’’ Memo- asserted that the pre-October 31 subpoenas Foreign Affairs, U.S. House of Representa- randum for Elliot Richardson, Attorney Gen- were authorized because the committees tives, Adam B. Schiff, Chairman, Permanent eral, from Robert G. Dixon, Jr., Assistant misunderstood the historical practice con- Select Committee on Intelligence, U.S. Attorney General, Office of Legal Counsel, cerning the House’s impeachment inquiries House of Representatives, and Elijah E. Re: Presidential Immunity from Coercive Con- (as we discuss in Part II.C) and they misread Cummings, Chairman, Committee on Over- gressional Demands for Information at 22–23 the committees’ subpoena authority under sight & Reform, U.S. House of Representa- (July 24, 1973) (quoting Polk’s letter). the House Rules (as we discuss in Part III.A). tives at 1 (Oct. 10, 2019). 14. See, e.g., Cong. Globe, 29th Cong., 1st 19. See, e.g., Cong. Globe, 27th Cong., 3d 10. Letter for Nancy Pelosi, Speaker, U.S. Sess. 636 (1846) (statement of Rep. Ingersoll) Sess. 144, 146 (1843) (John Tyler); Cong. Globe, House of Representatives, et al., from Pat A. (‘‘Whether . . . [Webster’s] offences will be 39th Cong., 2d Sess. 320 (1867) (Andrew John- Cipollone, Counsel to the President at 2–3 deemed impeachable misdemeanors in office, son); 28 Cong. Rec. 5627, 5650 (1896) (Grover (Oct. 8, 2019). conviction for which might remove him from Cleveland); 76 Cong. Rec. 399–402 (1932) (Her- 11. See Letter for Nancy Pelosi, Speaker, the Senate, and disqualify him to hold any bert Hoover); H.R. Res. 607, 82d Cong. (1952) U.S. House of Representatives, from Kevin office of honor, trust, or profit, under the (Harry Truman); H.R. Res. 625, 93d Cong. McCarthy, Republican Leader, U.S. House of United States, will remain to be consid- (1973) (Richard Nixon); H.R. Res. 370, 98th Representatives at 1 & n.1 (Oct. 3, 2019); ered.’’); Todd Garvey, The Webster and Inger- Cong. (1983) (Ronald Reagan); H.R. Res. 34, Mem. Amicus Curiae of Ranking Member soll Investigations, in Morton Rosenberg, The 102d Cong. (1991) (George H.W. Bush); H.R. Doug Collins in Support of Denial at 5–21, In Constitution Project, When Congress Comes Res. 525, 105th Cong. (1998) (Bill Clinton); re Application of the Comm. on the Judiciary Calling 289 (2017). H.R. Res. 1258, 110th Cong. (2008) (George W. (D.D.C. Oct. 3, 2019). 15. When the House first considered im- Bush); H.R. Res. 13, 106th Cong. (2019) (Don- 12. The House Judiciary Committee per- peachment in 1796, Attorney General Charles ald Trump). mitted President Nixon’s counsel to submit Lee advised that, ‘‘before an impeachment is 20. In 1860, the House authorized an inves- and respond to evidence, to request to call sent to the Senate, witnesses must be exam- tigation into the actions of President witnesses, to attend hearings and examina- ined, in solemn form, respecting the charges, Buchanan, but that investigation was not tions, to object to the examination of wit- before a committee of the House of Rep- styled as an impeachment investigation. See nesses and the admissibility of testimony, resentatives, to be appointed for that pur- Cong. Globe, 36th Cong., 1st Sess. 997–98 (1860) and to question witnesses. See H.R. Rep. No. pose.’’ Letter for the House of Representa- (resolution establishing a committee of five 93–1305, at 8–9 (1974); 3 Deschler’s Precedents tives from Charles Lee, Attorney General, members to ‘‘investigat[e] whether the ch. 14, § 6.5, at 2045–47. Later, President Clin- Re: Inquiry into the Official Conduct of a Judge President of the United States, or any other ton and his counsel were similarly ‘‘invited of the Supreme Court of the Northwestern Terri- officer of the government, ha[d], by money, to attend all executive session and open com- tory (May 9, 1796), reprinted in 1 Am. State patronage, or other improper means, sought mittee hearings,’’ at which they were per- Papers: Misc. 151 (Walter Lowrie & Walter S. to influence the action of Congress’’ or ‘‘by mitted to ‘‘cross examine witnesses,’’ ‘‘make Franklin eds., 1834). Because the charges of combination or otherwise, . . . attempted to objections regarding the pertinency of evi- misconduct concerned the actions of George prevent or defeat, the execution of any dence,’’ ‘‘suggest that the Committee receive Turner, a territorial judge, and the witnesses law’’). It appears to have been understood by additional evidence,’’ and ‘‘respond to the were located in far-away St. Clair County the committee as an oversight investigation. evidence adduced by the Committee.’’ H.R. (modern-day Illinois), Lee suggested that the See H.R. Rep. No. 36–648, at 1–28 (1860). Rep. No. 105–795, at 25–26; see also 18 Deschler’s ‘‘most solemn’’ mode of prosecution, an im- Buchanan in fact objected to the House’s use Precedents app. at 549 (2013) (noting that, dur- peachment trial before the Senate, would be of its legislative jurisdiction to circumvent ing the Clinton impeachment investigation, ‘‘very inconvenient, if not entirely impracti- the protections traditionally provided in the House made a ‘‘deliberate attempt to cable.’’ Id. Lee informed the House that connection with impeachment. See Message mirror [the] documented precedents and pro- President Washington had directed the terri- for the U.S. House of Representatives from ceedings’’ of the Nixon investigation). In a torial governor to arrange for a criminal James Buchanan (June 22, 1860), reprinted in departure from the Nixon and Clinton prece- prosecution before the territorial court. See 5 A Compilation of the Messages and Papers of

VerDate Sep 11 2014 17:29 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00079 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.106 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S366 CONGRESSIONAL RECORD — SENATE January 21, 2020 the Presidents 625 (James D. Richardson ed., 99th Cong. (1985) (same and others); H.R. Res. tigation of Daniel Wright); 68 Cong. Rec. 3532 1897) (objecting that if the House suspects 1025, 95th Cong. (1978) (Attorney General (1927) (same for Frank Cooper). presidential misconduct, it should ‘‘transfer Griffin Bell); H.R. Res. 1002, 95th Cong. (1978) 27. Articles for the Impeachment of Lebbeus R. the question from [its] legislative to [its] ac- (same); H.R. Res. 569, 93d Cong. (1973) (Vice Wilfley, Judge of the U.S. Court for China: cusatory jurisdiction, and take care that in President Spiro Agnew); H.R. Res. 67, 76th Hearings Before a Subcomm. of the H. Comm. on all the preliminary judicial proceedings pre- Cong. (1939) (Secretary of Labor Frances Per- the Judiciary, 60th Cong. 4 (1908) (statement paratory to the vote of articles of impeach- kins and others); 28 Cong. Rec. 114, 126 (1895) of Rep. Waldo); see also id. at 45–46 (statement the accused should enjoy the benefit of (Ambassador to Great Britain Thomas Bay- ment of Rep. Moon) (‘‘This committee con- cross-examining the witnesses and all the ard); 16 Cong. Rec. 17–19 (1884) (U.S. Marshal ceives to be its duty solely, under the resolu- other safeguards with which the Constitu- Lot Wright); Cong. Globe, 40th Cong., 1st tion referring this matter to them, to exam- tion surrounds every American citizen’’); see Sess. 778–79 (1867) (Minister to Great Britain ine the charges preferred in the petition . . . also Mazars USA, 940 F.3d at 762 (Rao, J., dis- Charles Francis Adams). On occasion, the and to report thereon whether in its judge- senting) (discussing the episode). House voted to table these resolutions in- ment the petitioner has made out a prima 21. The district court’s recent decision in stead of referring them to a committee. See, facie case; and also whether . . . Congress In re Application of the Committee on the Judi- e.g., H.R. Res. 545, 105th Cong. (1998) (resolu- should adopt a resolution instructing the Ju- ciary misreads Hinds’ Precedents to suggest tion of impeachment for Independent Coun- diciary Committee to proceed to an inves- that the House Judiciary Committee (which sel Kenneth Starr); H.R. Res. 1267, 95th Cong. tigation of the facts of the case.’’); 6 Can- the court called ‘‘HJC’’) began investigating (1978) (resolution of impeachment for Ambas- non’s Precedents § 525, at 743– 45 (summarizing President Johnson’s impeachment without sador to the United Nations Andrew Young). the Wilfley case, in which the Judiciary any authorizing resolution. According to the 25. In 1878, the Committee on Expenditures Committee ultimately reported that no for- district court, ‘‘a resolution authoriz[ing]’ in the State Department, which was charged mal investigation was warranted). The case HJC to inquire into the official conduct of with investigative authority for ‘‘the expos- of Judge Samuel Alschuler in 1935 similarly Andrew Johnson’ was passed after HJC ‘was ing of frauds or abuses of any kind,’’ 7 Cong. involved only a preliminary investigation— already considering the subject.’ ’’ 2019 WL Rec. 287, 290 (1878), was referred an investiga- albeit one with actual investigative powers. 5485221, at *27 (quoting 3 Hinds’ Precedents tion into maladministration at the consulate The House first referred to the Judiciary § 2400, at 824). In fact, the committee was ‘‘al- in Shanghai during the terms of Consul-Gen- Committee a resolution that, if approved, ready considering the subject’’ at the time of eral George Seward and Vice Consul-General would authorize an investigation of potential the February 4 resolution described in the O.B. Bradford, id. at 504, 769. Eventually, the impeachment charges. See 79 Cong. Rec. 7086, quoted sentence because, as explained in the committee began to consider Seward’s im- 7106 (1935). Six days later, it adopted a reso- text above, the House had previously adopted peachment, serving him with a subpoena for lution that granted the committee investiga- a separate resolution authorizing an im- testimony and documents, in response to tive powers in support of ‘‘the preliminary peachment investigation. See Cong. Globe, which he asserted his privilege against self- examinations deemed necessary’’ for the 39th Cong., 2d Sess. 320–21 (1867); 3 Hinds’ incrimination. See 3 Hinds’ Precedents § 2514, committee to make a recommendation about Precedents § 2400, at 824. at 1023–24; H.R. Rep. No. 45–141, at 1–3 (1879). whether a full investigation should occur. Id. 22. See, e.g., H.R. Res. 625, 631, 635, and 638, The committee recommended articles of im- at 7393–94. The committee ultimately rec- 93d Cong. (1973) (impeachment); H.R. Res. peachment, but the House declined to act be- ommended against a full investigation. See 626, 627, 628, 636, and 637, 93d Cong. (1973) (Ju- fore the end of the Congress. See 8 Cong. Rec. H.R. Rep. No. 74–1802, at 2 (1935). diciary Committee or subcommittee inves- 2350–55 (1879); 3 Hinds’ Precedents § 2514, at 28. See, e.g., 18 Annals of Cong. 1885–86, 2197– tigation). 1025. During this same period, the Committee 98 (1808) (Harry Innes, 1808; the House passed 23. A New York Times article the following on Expenditures reported proposed articles a resolution authorizing an impeachment in- day characterized House Resolution 803 as of impeachment against Bradford but rec- vestigation, which concluded that the evi- ‘‘formally ratif[ying] the impeachment in- ommended ‘‘that the whole subject be re- dence accompanying the resolution did not quiry begun by the committee [the prior] Oc- ferred to the Committee on the Judiciary’’ support impeachment); 3 Hinds’ Precedents tober.’’ James M. Naughton, House, 410–4, for further consideration. H.R. Rep. No. 45– § 2486, at 981–83 (George Turner, 1796; no ap- Gives Subpoena Power in Nixon Inquiry, N.Y. 818, at 7 (1878). The House agreed to the refer- parent investigation, presumably because of Times, Feb. 7, 1974, at 1. But the resolution ral, but no further action was taken. 7 Cong. the parallel criminal prosecution rec- did not grant after-the-fact authorization for Rec. at 3667. ommended by Attorney General Lee, as dis- any prior action. To the contrary, the reso- 26. See, e.g., 3 Hinds’ Precedents § 2489, at 986 cussed above); id. § 2488, at 985 (Harry lution ‘‘authorized and directed’’ a future in- (William Van Ness, Mathias Tallmadge, and Toulmin, 1811; the House ‘‘declined to order vestigation, including by providing subpoena William Stephens, 1818); id. § 2490, at 987 (Jo- a formal investigation’’); 40 Annals of Cong. power. In the report recommending adoption seph Smith, 1825); id. § 2364, at 774 (James 463–69, 715–18 (1822–23) (Charles Tait, 1823; no of the resolution, the committee likewise de- Peck, 1830); id. § 2492, at 990 (Alfred Conkling, apparent investigation beyond examination scribed its plans in the future tense: ‘‘It is 1830); id. § 2491, at 989 (Buckner Thurston, of documents containing charges); 3 Hinds’ the intention of the committee that its in- 1837); id. § 2494, at 993–94 (P.K. Lawrence, Precedents § 2493, at 991–92 (Benjamin John- vestigation will be conducted in all respects 1839); id. §§ 2495, 2497, 2499, at 994, 998, 1003 son, 1833; no apparent investigation); id. on a fair, impartial and bipartisan basis.’’ (John Watrous, 1852–60); id. § 2500, at 1005 § 2511, at 1019–20 (Charles Sherman, 1873; the H.R. Rep. No. 93–774, at 3 (1974). (Thomas Irwin, 1859); id. § 2385, at 805 (West Judiciary Committee received evidence from 24. As with Presidents, many of these reso- Humphreys, 1862); id. § 2503, at 1008 (anony- the Ways and Means Committee, which had lutions remained with the committees until mous justice of the Supreme Court, 1868); id. been investigating corruption in Congress, they expired at the end of the Congress. Sev- § 2504, at 1008–09 (Mark Delahay, 1872); id. but the Judiciary Committee conducted no eral merely articulated allegations of im- § 2506, at 1011 (Edward Durell, 1873); id. § 2512, further investigation); 6 Cannon’s Precedents peachment. See, e.g., H.R. Res. 1028, 115th at 1021 (Richard Busteed, 1873); id. § 2516, at § 535, at 769 (Kenesaw Mountain Landis, 1921; Cong. (2018) (Deputy Attorney General Rod 1027 (Henry Blodgett, 1879); id. §§ 2517–18, at the Judiciary Committee reported that Rosenstein); H.R. Res. 417, 114th Cong. (2015) 1028, 1030–31 (Aleck Boarman, 1890–92); id. ‘‘charges were filed too late in the present (Administrator of the Environmental Pro- § 2519, at 1032 (J.G. Jenkins, 1894); id. § 2520, at session of the Congress’’ to enable investiga- tection Agency Regina McCarthy); H.R. Res. 1033 (Augustus Ricks, 1895); id. § 2469, at 949– tion); 3 Deschler’s Precedents ch. 14, § 14.6, at 411, 113th Cong. (2013) (Attorney General Eric 50 (Charles Swayne, 1903); 6 Clarence Cannon, 2144–45 (Joseph Molyneaux, 1934; the Judici- Holder); H.R. Res. 333, 110th Cong. (2007) Cannon’s Precedents of the House of Represent- ary Committee took no action on the refer- (Vice President Richard Cheney); H.R. Res. atives of the United States § 498, at 685 (1936) ral of a resolution that would have author- 629, 108th Cong. (2004) (Secretary of Defense (Robert Archbald, 1912); id. § 526, at 746–47 ized an investigation). Donald Rumsfeld); H.R. Res. 805, 95th Cong. (Cornelius H. Hanford, 1912); id. § 527, at 749 29. See H.R. Rep. No. 100–810, at 11 & n.14 (1977) (United Nations Ambassador Andrew (Emory Speer, 1913); id. § 528, at 753 (Daniel (stating that, in the Hastings investigation, Young); H.R. Res. 274, 95th Cong. (1977) (Com- Wright, 1914); id. § 529, at 756 (Alston Dayton, a committee subpoena had been issued for missioner of the Federal Trade Commission 1915); id. § 543, at 777–78 (William Baker, 1924); William Borders, who challenged the sub- Paul Dixon); H.R. Res. 881, 94th Cong. (1975) id. § 544, at 778–79 (George English, 1925); id. poena on First, Fourth, Fifth, and Eighth (U.S. Attorney Jonathan Goldstein and Prin- § 549, at 789–90 (Frank Cooper, 1927); id. § 550, Amendment grounds); H.R. Rep. No. 100–1124, cipal Assistant U.S. Attorney Bruce Gold- at 791–92 (Francis Winslow, 1929); id. § 551, at at 130 (1989) (noting the issuance of ‘‘sub- stein); H.R. Res. 647, 94th Cong. (1975) (Am- 793 (Harry Anderson, 1930); id. § 552, at 794 poenas duces tecum’’ in the investigation of bassador to Iran Richard Helms); H.R. Res. (Grover Moscowitz, 1930); id. § 513, at 709–10 Judge Nixon); 134 Cong. Rec. 27782 (1988) 547, 94th Cong. (1975) (Special Crime Strike (Harold Louderback, 1932); 3 Deschler’s Prece- (statement of Rep. Edwards) (explaining the Force Prosecutor Liam Coonan). Others dents ch. 14, § 14.4, at 2143 (James Lowell, subcommittee’s need to depose some wit- called for an investigation. See, e.g., H.R. 1933); id. § 18.1, at 2205–06 (Halsted Ritter, nesses pursuant to subpoena in the Nixon in- Res. 589, 110th Cong. (2007) (Attorney General 1933); id. § 14.10, at 2148 (Albert Johnson and vestigation); Judge Walter L. Nixon, Jr., Im- Alberto Gonzales); H.R. Res. 582, 105th Cong. Albert Watson, 1944); H.R. Res. 1066, 94th peachment Inquiry: Hearing Before the (1998) (Independent Counsel Kenneth Starr); Cong. (1976) (certain federal judges); H.R. Subcomm. on Civil & Constitutional Rights of H.R. Res. 102, 99th Cong. (1985) (Chairman of Res. 966, 95th Cong. (1978) (Frank Battisti); the H. Comm. on the Judiciary, 101st Cong. 530– the Board of Governors of the Federal Re- see also 51 Cong. Rec. 6559–60 (1914) (noting 606 (1988) (reprinting deposition of Mag- serve System Paul Volcker); H.R. Res. 101, passage of authorizing resolution for inves- istrate Judge Roper).

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00080 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.107 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S367 30. The House did pass resolutions author- ments or testimony in an impeachment in- inquiry. Setting aside the question whether izing funds for investigations with respect to vestigation. the inquiry has been lawfully authorized, the Hastings impeachment, see H.R. Res. 134, 37. Even if the House had sought to ratify you have asked whether the Committee may 100th Cong. (1987); H.R. Res. 388, 100th Cong. a previously issued subpoena, it could give compel Mr. Kupperman to testify even as- (1988), and resolutions authorizing the com- that subpoena only prospective effect. As suming an authorized subpoena. We conclude mittee to permit its counsel to take affida- discussed above, the Supreme Court has rec- that he is absolutely immune from com- vits and depositions in both the Nixon and ognized that the House may not cite a wit- pelled congressional testimony in his capac- Hastings impeachments, see H.R. Res. 562, ness for contempt for failure to comply with ity as a former senior adviser to the Presi- 100th Cong. (1988) (Nixon); H.R. Res. 320, a subpoena unsupported by a valid delega- dent. 100th Cong. (1987) (Hastings). tion of authority at the time it was issued. The Committee seeks Mr. Kupperman’s 31. In the post-1989 era, as before, most of See Rumely, 345 U.S. at 48; see also Exxon, 589 testimony about matters related to his offi- the impeachment resolutions against judges F.2d at 592 (‘‘To issue a valid subpoena, . . . cial duties at the White House. We under- that were referred to the Judiciary Com- a committee or subcommittee must conform stand that Committee staff informed Mr. mittee did not result in any further inves- strictly to the resolution establishing its in- Kupperman’s private counsel that the Com- tigation. See, e.g., H.R. Res. 916, 109th Cong. vestigatory powers[.]’’). (2006) (Manuel Real); H.R. Res. 207, 103d Cong. 38. The letters accompanying other sub- mittee wishes to question him about the (1993) (Robert Collins); H.R. Res. 177, 103d poenas, see supra note 9, contained similar telephone call between President Trump and Cong. (1993) (Robert Aguilar); H.R. Res. 176, threats that the recipients’ ‘‘failure or re- the President of Ukraine that took place on 103d Cong. (1993) (Robert Collins). fusal to comply with the subpoena, including July 25, 2019, during Mr. Kupperman’s tenure 32. Unlike the House, ‘‘the Senate treats at the direction or behest of the President,’’ as a presidential adviser, and related mat- its rules as remaining in effect continuously would constitute ‘‘evidence of obstruction of ters. See ‘‘Urgent Concern’’ Determination by from one Congress to the next without hav- the House’s impeachment inquiry.’’ the Inspector General of the Intelligence Com- ing to be re-adopted.’’ Richard S. Beth, Cong. 39. See, e.g., Attempted Exclusion of Agency munity, 43 Op. O.L.C. __, at *1–3 (Sept. 3, 2019) Research Serv., R42929, Procedures for Consid- Counsel from Congressional Depositions of (discussing the July 25 telephone call). ering Changes in Senate Rules 9 (Jan. 22, 2013). Agency Employees, 43 Op. O.L.C. __, at *14 The Department of Justice has for decades Of course, like the House, the Senate may (May 23, 2019) (‘‘[I]t would be unconstitu- taken the position, and this Office recently change its rules by simple resolution. tional to enforce a subpoena against an agen- reaffirmed, that ‘‘Congress may not con- 33. Nor do the Rules otherwise give the cy employee who declined to appear before stitutionally compel the President’s senior Speaker the authority to order an investiga- Congress, at the agency’s direction, because advisers to testify about their official du- tion or issue a subpoena in connection with the committee would not permit an agency ties.’’ Testimonial Immunity Before Congress of impeachment. Rule I sets out the powers of representative to accompany him.’’); Testi- the Former Counsel to the President, 43 Op. the Speaker. She ‘‘shall sign . . . all writs, monial Immunity Before Congress of the Former O.L.C. ____, at *1 (May 20, 2019) (‘‘Immunity of warrants, and subpoenas of, or issued by Counsel to the President, 43 Op. O.L.C. __, at the Former Counsel’’). This testimonial im- order of, the House.’’ Rule I, cl. 4. But that *20 (May 20, 2019) (‘‘The constitutional sepa- munity is rooted in the separation of powers provision applies only when the House itself ration of powers bars Congress from exer- and derives from the President’s status as issues an order. See Jefferson’s Manual § 626, cising its inherent contempt power in the the head of a separate, co-equal branch of at 348. face of a presidential assertion of executive government. See id at *3–7. Because the 34. Clause 2(m) of Rule XI was initially privilege.’’); Whether the Department of Justice President’s closest advisers serve as his alter adopted on October 8, 1974, and took effect on May Prosecute White House Officials for Con- egos, compelling them to testify would un- January 3, 1975. See H.R. Res. 988, 93d Cong. tempt of Congress, 32 Op. O.L.C. 65, 65–69 (2008) dercut the ‘‘independence and autonomy’’ of The rule appears to have remained materi- (concluding that the Department cannot the Presidency, id. at *4, and interfere di- ally unchanged from 1975 to the present (in- take ‘‘prosecutorial action, with respect to rectly with the President’s ability to faith- cluding during the time of the Clinton inves- current or former White House officials who fully discharge his responsibilities. Absent tigation). See H.R. Rule XI, cl. 2(m), 105th . . . declined to appear to testify, in response immunity, ‘‘congressional committees could Cong. (Jan. 1, 1998) (version in effect during to subpoenas from a congressional com- wield their compulsory power to attempt to the Clinton investigation); Jefferson’s Manual mittee, based on the President’s assertion of supervise the President’s actions, or to har- § 805, at 586–89 (reprinting current version executive privilege’’); Application of 28 U.S.C. ass those advisers in an effort to influence and describing the provision’s evolution). § 458 to Presidential Appointments of Federal their conduct, retaliate for actions the com- 35. At the start of the 93rd Congress in 1973, Judges, 19 Op. O.L.C. 350, 356 (1995) (‘‘[T]he mittee disliked, or embarrass and weaken the Judiciary Committee was ‘‘authorized to criminal contempt of Congress statute does the President for partisan gain.’’ Immunity of conduct full and complete studies and inves- not apply to the President or presidential the Assistant to the President and Director of tigations and make inquiries within its juris- subordinates who assert executive privi- the Office of Political Strategy and Outreach diction as set forth in [the relevant provi- lege.’’); see also Authority of Agency Officials From Congressional Subpoena, 38 Op. O.L.C. __, sion] of the Rules of the House of Represent- to Prohibit Employees from Providing Informa- at *3 (July 15, 2014). Congressional ques- atives’’ and was empowered ‘‘to hold such tion to Congress, 28 Op. O.L.C. 79, 80–82 (2004) tioning of the President’s senior advisers hearings and require, by subpena or other- (explaining that the Executive Branch has would also undermine the independence and wise, the attendance and testimony of such the constitutional authority to supervise its candor of executive branch deliberations. See witnesses and the production of such books, employees’ disclosure of privileged and other Immunity of the Former Counsel, 43 Op. O.L.C. records, correspondence, memorandums, pa- information to Congress). at *5–7. Administrations of both political pers, and documents, as it deems necessary.’’ APPENDIX D parties have insisted on the immunity of H.R. Res. 74, 93d Cong. §§ 1, 2(a) (1973); see also senior presidential advisers, which is critical Cong. Research Serv., R45769, The Impeach- LETTER OPINIONS FROM THE OFFICE OF to protect the institution of the Presidency. ment Process in the House of Representatives 4 LEGAL COUNSEL TO COUNSEL TO THE Assertion of Executive Privilege with Respect to (updated Nov. 14, 2019) (noting that, before PRESIDENT REGARDING ABSOLUTE IM- Clemency Decision, 23 Op. O.L.C. 1, 5 (1999) Rule XI vested subpoena power in standing MUNITY OF THE ACTING CHIEF OF (A.G. Reno). committees, the Judiciary Committee and STAFF, LEGAL ADVISOR TO THE NA- other committees had often been given sub- TIONAL SECURITY COUNSEL, AND DEP- Mr. Kupperman qualifies as a senior presi- poena authority ‘‘through resolutions pro- UTY NATIONAL SECURITY ADVISOR dential adviser entitled to immunity. The viding blanket investigatory authorities U.S. DEPARTMENT OF JUSTICE, testimonial immunity applies to the Presi- that were agreed to at the start of a Con- OFFICE OF LEGAL COUNSEL, dent’s ‘‘immediate advisers—that is, those gress’’). Washington, DC, October 25, 2019. who customarily meet with the President on 36. The Judiciary Committee has also in- PAT A. CIPOLLONE, a regular or frequent basis.’’ Memorandum voked House Resolution 430 as an inde- Counsel to the President, The White House, for John D. Ehrlichman, Assistant to the pendent source of authority for an impeach- Washington, DC. President for Domestic Affairs, from William ment inquiry. See Tr. of Mot. Hrg. at 91–92, In DEAR MR. CIPOLLONE: Today, the Perma- H. Rehnquist, Assistant Attorney General, re Application of the Comm. on the Judiciary; nent Select Committee on Intelligence of the Office of Legal Counsel, Re: Power of Congres- see also Majority Staff of H. Comm. on the House of Representatives issued a subpoena sional Committee to Compel Appearance or Tes- Judiciary, 116th Cong., Constitutional Grounds seeking to compel Charles Kupperman, timony of ‘‘White House Staff’’ at 7 (Feb. 5, for Presidential Impeachment 39 (Dec. 2019). As former Assistant to the President and Dep- 1971). Your office has informed us that Mr. discussed above, however, that resolution did uty National Security Advisor, to testify on Kupperman served as the sole deputy to Na- not confer any investigative authority. Monday, October 28. The Committee subpoe- tional Security Advisor John R. Bolton, and Rather, it granted ‘‘any and all necessary naed Mr. Kupperman as part of its purported briefly served as Acting National Security authority under Article I’’ only ‘‘in connec- impeachment inquiry into the conduct of the Advisor after Mr. Bolton’s departure. As tion with’’ certain ‘‘judicial proceeding[s]’’ President. The Administration has pre- Deputy National Security Advisor, Mr. in federal court. H.R. Res. 430, 116th Cong. viously explained to the Committee that the Kupperman generally met with the President (2019); see supra note 7. The resolution there- House has not authorized an impeachment multiple times per week to advise him on a fore had no bearing on any committee’s au- inquiry, and therefore, the Committee may wide range of national security matters, and thority to compel the production of docu- not compel testimony in connection with the he met with the President even more often

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during the frequent periods when Mr. Bolton U.S. DEPARTMENT OF JUSTICE, sistant Attorney General, Office of Legal was traveling. Mr. Kupperman participated OFFICE OF LEGAL COUNSEL, Counsel at 2 & n.l (Nov. 1, 2019). The testi- in sensitive internal deliberations with the Washington, DC, November 3, 2019. monial immunity of senior presidential ad- President and other senior advisers, main- PAT A. CIPOLLONE, visers is ‘‘broader’’ than executive privilege tained an office in the West Wing of the Counsel to the President, The White House, and exists in part to prevent the inadvertent White House, traveled with the President on Washington, DC. disclosure of privileged information, Immu- official trips abroad on multiple occasions, DEAR MR. CIPOLLONE: On November 1, 2019, nity of the Former Counsel, 43 Op. O.L.C. at *4, and regularly attended the presentation of the Permanent Select Committee on Intel- *6, so it follows that testimonial immunity the President’s Daily Brief and meetings of ligence of the House of Representatives also continues to apply in the impeachment the National Security Council presided over issued a subpoena seeking to compel John context. More importantly, the commence- by the President. Eisenberg to testify at a deposition on Mon- ment of an impeachment inquiry only Mr. Kupperman’s immunity from com- day, November 4. Mr. Eisenberg serves as As- heightens the need to safeguard the separa- pelled testimony is strengthened because his sistant to the President, Deputy Counsel to tion of powers and preserve the ‘‘independ- duties concerned national security. The Su- the President for National Security Affairs, ence and autonomy’’ of the Presidency—the preme Court held in Harlow v. Fitzgerald, 457 and Legal Advisor to the National Security principal concerns underlying testimonial U.S. 800 (1982), that senior presidential advis- Council. The Committee subpoenaed Mr. immunity. Id. at *4. Even when impeachment ers do not enjoy absolute immunity from Eisenberg as part of its impeachment inquiry proceedings are underway, the President civil liability—a holding that, as we have into the conduct of the President. See H.R. must remain able to continue to discharge previously explained, does not conflict with Res. 660, 116th Cong. (2019). You have asked the duties of his office. The testimonial im- our recognition of absolute immunity from whether the Committee may compel Mr. munity of the President’s senior advisers re- compelled congressional testimony for such Eisenberg to testify. We conclude that he is mains an important limitation to protect advisers, see, e.g., Immunity of the Former absolutely immune from compelled congres- the independence and autonomy of the Presi- Counsel, 43 Op. O.L.C. at *13–14. Yet the Har- sional testimony in his capacity as a senior dent himself. low Court recognized that ‘‘[f]or aides en- adviser to the President. We do not doubt that there may be im- trusted with discretionary authority in such The Committee has made clear that it peachment investigations in which the sensitive areas as national security or for- seeks to question Mr. Eisenberg about mat- House will have a legitimate need for infor- eign policy,’’ even absolute immunity from ters related to his official duties at the mation possessed by the President’s senior suit ‘‘might well be justified to protect the White House. The Committee informed him advisers, but the House may have a legiti- unhesitating performance of functions vital that it is investigating the President’s con- mate need in a legislative oversight inquiry. to the national interest.’’ 457 U.S. at 812; see duct of foreign relations with Ukraine and In both instances, the testimonial immunity also id. at 812 n.19 (‘‘a derivative claim to that it believes, ‘‘[b]ased upon public report- of the President’s senior advisers will not Presidential immunity would be strongest in ing and evidence gathered as part of the im- prevent the House from obtaining informa- such ‘central’ Presidential domains as for- peachment inquiry,’’ that Mr. Eisenberg has tion from other available sources. The im- eign policy and national security, in which ‘‘information relevant to these matters.’’ munity of those immediate advisers will not the President could not discharge his sin- Letter for John Eisenberg from Adam B. itself prevent the House from obtaining tes- gularly vital mandate without delegating Schiff, Chairman, House Permanent Select timony from others in the Executive Branch, functions nearly as sensitive as his own’’). Committee on Intelligence, et al. at 1 (Oct. including in the White House, or from ob- Immunity is also particularly justified 30, 2019); see also Letter for John Eisenberg taining pertinent documents (although the here because the Committee apparently from Adam B. Schiff, Chairman, House Per- House may still need to overcome executive seeks Mr. Kupperman’ s testimony about the manent Select Committee on Intelligence, et privilege with respect to testimony and doc- President’s conduct of relations with a for- al. at 1 (Nov. 1, 2019). uments to which the privilege applies). In ad- eign government. The President has the con- The Executive Branch has taken the posi- dition, the President may choose to author- stitutional responsibility to conduct diplo- tion for decades that ‘‘Congress may not con- ize his senior advisers to provide testimony matic relations, see Assertion of Executive stitutionally compel the President’s senior because ‘‘the benefit of providing such testi- Privilege for Documents Concerning Conduct of advisers to testify about their official du- mony as an accommodation to a committee’s Foreign Affairs with Respect to Haiti, 20 Op. ties.’’ Testimonial Immunity Before Congress of interests outweighs the potential for harass- O.L.C. 5, 7 (1996) (A.G. Reno), and as a result, the Former Counsel to the President, 43 Op. ment and harm to Executive Branch con- the President has the ‘‘exclusive authority O.L.C. __, at *1 (May 20, 2019) (‘‘Immunity of fidentiality.’’ Immunity of the Assistant to the to determine the time, scope, and objectives the Former Counsel’’). This testimonial im- President, 38 Op. O.L.C. at *4 n.2. Accordingly, of international negotiations.’’ Unconstitu- munity is rooted in the separation of powers our recognition that the immunity applies to tional Restrictions on Activities of the Office of and derives from the President’s status as an impeachment inquiry does not preclude Science and Technology Policy in Section the head of a separate, co-equal branch of the House from obtaining information from 1340(a) of the Department of Defense and Full- government. See id. at *3–7. Because the other sources. Year Continuing Appropriations Act, 2011, 35 President’s closest advisers serve as his alter We next consider whether Mr. Eisenberg Op. O.L.C. __, at *4 (Sept. 19, 2011) (quotation egos, compelling them to testify would un- qualifies as a senior presidential adviser. The marks omitted). Compelling testimony dercut the ‘‘independence and autonomy’’ of testimonial immunity applies to the Presi- about these sensitive constitutional respon- the Presidency, id. at *4, and interfere di- dent’s ‘‘immediate advisers—that is, those sibilities would only deepen the very con- rectly with the President’s ability to faith- who customarily meet with the President on cerns—about separation of powers and con- fully discharge his constitutional respon- a regular or frequent basis.’’ Memorandum fidentiality—that underlie the rationale for sibilities. Absent immunity, ‘‘congressional for John D. Ehrlichman, Assistant to the testimonial immunity. See New York Times committees could wield their compulsory President for Domestic Affairs, from William Co. v. United States, 403 U.S. 713, 728 (1971) power to attempt to supervise the Presi- H. Rehnquist, Assistant Attorney General, (Stewart, J., concurring) (‘‘[I]t is elementary dent’s actions, or to harass those advisers in Office of Legal Counsel, Re: Power of Congres- that the successful conduct of international an effort to influence their conduct, retali- sional Committee to Compel Appearance or Tes- diplomacy and the maintenance of an effec- ate for actions the committee disliked, or timony of ‘‘White House Staff’’ at 7 (Feb. 5, tive national defense require both confiden- embarrass and weaken the President for par- 1971). We believe that Mr. Eisenberg meets tiality and secrecy.’’). tisan gain.’’ Immunity of the Assistant to the that definition. Mr. Eisenberg has served as Finally, it is inconsequential that Mr. President and Director of the Office of Political an adviser to the President on sensitive legal Kupperman is now a private citizen. In Im- Strategy and Outreach From Congressional Sub- and national security matters since the first munity of the Former Counsel, we reaffirmed poena, 38 Op. O.L.C. __, at *3 (July 15, 2014) day of the Administration, and his direct re- that for purposes of testimonial immunity, (‘‘Immunity of the Assistant to the President’’). lationship with the President has grown over there is ‘‘no material distinction’’ between Congressional questioning of the President’s time. Your office has informed us that he ‘‘current and former senior advisers to the senior advisers would also undermine the regularly meets with the President multiple President,’’ and therefore, an adviser’s de- independence and candor of executive branch times each week, frequently in very small parture from the White House staff ‘‘does not deliberations. See Immunity of the Former groups, and often communicates with the alter his immunity from compelled congres- Counsel, 43 Op. O.L.C. at *5–7. For these rea- President multiple times per day. He is one sional testimony on matters related to his sons, the Executive Branch has long recog- of a small number of advisers who are au- service to the President.’’ 43 Op. O.L.C. at nized the immunity of senior presidential ad- thorized to contact the President directly, *16; see also Immunity of the Former Counsel to visers to be critical to protecting the institu- and the President directly seeks his advice. the President from Compelled Congressional tion of the Presidency. Mr. Eisenberg is therefore the kind of imme- Testimony, 31 Op. O.L.C. 191, 192–93 (2007). It is This testimonial immunity applies in an diate presidential adviser that the Executive sufficient that the Committee seeks Mr. impeachment inquiry just as it applies in a Branch has historically considered immune Kupperman’s testimony on matters related legislative oversight inquiry. As our Office from compelled congressional testimony. to his official duties at the White House. recently advised you, executive privilege re- Mr. Eisenberg’s eligibility for immunity is Please let us know if we may be of further mains available when a congressional com- particularly justified because his duties con- assistance. mittee conducts an impeachment investiga- cern national security. The Supreme Court STEVEN A. ENGEL, tion. See Letter for Pat A. Cipollone, Counsel held in Hurluw v. Fitzgerald, 457 U.S. 800 Assistant Attorney General. to the President, from Steven A. Engel, As- (1982), that senior presidential advisers do

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00082 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.088 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S369 not enjoy absolute immunity from civil li- President for Domestic Affairs, from William [In the Senate of the United States Sitting ability—a holding that, as we have pre- H. Rehnquist, Assistant Attorney General, as a Court of Impeachment] viously explained, does not conflict with our Office of Legal Counsel, Re: Power of Congres- In re Impeachment of President Donald J. recognition of absolute immunity from com- sional Committee to Compel Appearance or Tes- Trump pelled congressional testimony for such ad- timony of ‘‘White House Staff’’ at 7 (Feb. 5, REPLICATION OF THE UNITED STATES HOUSE OF visers, see Immunity of the Assistant to the 1971) (‘‘Rehnquist Memorandum’’). We re- President, 38 Op. O.L.C. at *5–9. Yet the Har- cently advised you that this immunity ap- REPRESENTATIVES TO THE ANSWER OF low Court recognized that ‘‘[f]or aides en- plies in an impeachment inquiry just as in a PRESIDENT DONALD J. TRUMP TO THE ARTI- trusted with discretionary authority in such legislative oversight inquiry. See Letter for CLES OF IMPEACHMENT sensitive areas as national security or for- Pat A. Cipollone, Counsel to the President, The House of Representatives, through its eign policy,’’ even absolute immunity from from Steven A. Engel, Assistant Attorney Managers and counsel, replies to the Answer suit ‘‘might well be justified to protect the General, Office of Legal Counsel at 2 (Nov. 3, of President Donald J. Trump as follows: unhesitating performance of functions vital 2019). ‘‘Even when impeachment proceedings PREAMBLE to the national interest.’’ 457 U.S. at 812; see are underway,’’ we explained, ‘‘the President The House denies each and every allega- also id. at 812 n.19 (‘‘a derivative claim to must remain able to continue to discharge tion and defense in the Preamble to the An- Presidential immunity would be strongest in the duties of his office. The testimonial im- swer. such ‘central’ Presidential domains as for- munity of the President’s senior advisers re- The American people entrusted President eign policy and national security, in which mains an important limitation to protect Trump with the extraordinary powers vested the President could not discharge his sin- the independence and autonomy ofthe Presi- in his Office by the Constitution, powers gularly vital mandate without delegating dent himself.’’ Id. which he swore a sacred Oath to use for the functions nearly as sensitive as his own’’). This immunity applies in connection with Moreover, the Committee seeks Mr. the Committee’s subpoena for Mr. Nation’s benefit. President Trump broke Eisenberg’s testimony about the President’s Mulvaney’s testimony. The Committee in- that promise. He used Presidential powers to conduct of relations with a foreign govern- tends to question Mr. Mulvaney about mat- pressure a vulnerable foreign partner to ment. The President has the constitutional ters related to his official duties at the interfere in our elections for his own benefit. responsibility to conduct diplomatic rela- White House—specifically the President’s In doing so, he jeopardized our national secu- tions, see Assertion of Executive Privilege for conduct of foreign relations with Ukraine. rity and our democratic self-governance. He Documents Concerning Conduct of Foreign Af- See Letter for Mick Mulvaney from Adam B. then used his Presidential powers to orches- fairs with Respect to Haiti, 20 Op. O.L.C. 5, 7 Schiff, Chairman, House Permanent Select trate a cover-up unprecedented in the his- (1996) (A.G. Reno), and as a result, the Presi- Committee on Intelligence, et al. (Nov. 5, tory of our Republic: a complete and relent- dent has the ‘‘exclusive authority to deter- 2019). And Mr. Mulvaney, as Acting Chief of less blockade of the House’s constitutional mine the time, scope, and objectives of inter- Staff, is a ‘‘top presidential adviser[],’’ In re power to investigate high Crimes and Mis- national negotiations.’’ Unconstitutional Re- Sealed Case, 121 F.3d 729, 757 (D.C. Cir. 1997), demeanors. strictions on Activities of the Office of Science who works closely with the President in su- President Trump maintains that the Sen- and Technology Policy in Section 1340(a) of the pervising the staff within the Executive Of- ate cannot remove him even if the House Department of Defense and Full-Year Con- fice ofthe President and managing the advice proves every claim in the Articles of im- tinuing Appropriations Act, 2011, 35 Op. O.L.C. the President receives. See David B. Cohen & peachment. That is a chilling assertion. It is __, at *4 (Sept. 19, 2011) (quotation marks Charles E. Walcott, White House Transition also dead wrong. The Framers deliberately omitted). Compelling testimony about these Project, Report 2017–21, The Office of Chief of drafted a Constitution that allows the Sen- sensitive constitutional responsibilities Staff l5–26 (2017). Mr. Mulvaney meets with ate to remove Presidents who, like President would only deepen the very concerns—about and advises the President on a daily basis Trump, abuse their power to cheat in elec- separation of powers and confidentiality— about the most sensitive issues confronting tions, betray our national security, and ig- that underlie the rationale for testimonial the government. Thus, he readily qualifies as nore checks and balances. That President immunity. See New York Times Co. v. United an ‘‘immediate adviser[]’’ who may not be Trump believes otherwise, and insists he is States, 403 U.S. 713, 728 (1971) (Stewart, J., compelled to testify before Congress. free to engage in such conduct again, only concurring) (‘‘[I]t is elementary that the suc- Rehnquist Memorandum at 7. highlights the continuing threat he poses to cessful conduct of international diplomacy This conclusion also follows from this Of- the Nation if allowed to remain in office. and the maintenance of an effective national fice’s prior recognition that certain Deputy Despite President Trump’s stonewalling of defense require both confidentiality and se- White House Chiefs of Staff were immune the impeachment inquiry, the House crecy.’’). from compelled congressional testimony. See amassed overwhelming evidence of his guilt. Please let us know if we may be of further Letter for Pat A. Cipollone, Counsel to the It did so through fair procedures rooted firm- assistance. President, from Steven A. Engel, Assistant ly in the Constitution and precedent. It ex- STEVEN A. ENGEL, Attorney General, Office ofLegal Counsel tended President Trump protections equal Assistant Attorney General. (Sept. 16, 2019) (former Deputy Chief of Staff to, or greater than, those afforded to Presi- for Policy Implementation Rick Dearborn); dents in prior impeachment inquiries. To U.S. DEPARTMENT OF JUSTICE, Letter for Fred F. Fielding, Counsel to the prevent President Trump’s obstruction from OFFICE OF LEGAL COUNSEL, President, from Steven G. Bradbury, Prin- delaying justice until after the very election Washington, DC, November 7, 2019. cipal Deputy Assistant Attorney General, Of- he seeks to corrupt, the House moved deci- PAT A. CIPOLLONE, fice of Legal Counsel (Aug. 1, 2007) (Deputy sively to adopt the two Articles of impeach- Counsel to the President, The White House, White House Chief of Staff Karl Rove). In ad- ment. Still, new evidence continues to Washington, DC. dition, as we have noted with respect to emerge, all of which confirms these charges. DEAR MR. CIPOLLONE: On November 7, 2019, other recently issued subpoenas, testimonial Now it is the Senate’s duty to conduct a the Permanent Select Committee on Intel- immunity is particularly justified because fair trial—fair for President Trump, and fair ligence of the House of Representatives the Committee seeks Mr. Mulvaney’s testi- for the American people. Only if the Senate issued a subpoena seeking to compel Mick mony about the President’s conduct of rela- sees and hears all relevant evidence—only if Mulvaney, Assistant to the President and tions with a foreign government. See, e.g., it insists upon the whole truth—can it render Acting White House Chief of Staff, to testify Letter for Pat A. Cipollone, Counsel to the impartial justice. That means the Senate at a deposition on Friday, November 8. The President, from Steven A. Engel, Assistant should require the President to turn over the Committee subpoenaed Mr. Mulvaney as part Attorney General, Office of Legal Counsel at documents he is hiding. It should hear from of its impeachment inquiry into the conduct 2–3 (Oct. 25, 2019); see also Harlow v. Fitz- witnesses, as it has done in every impeach- of the President. See H.R. Res. 660, 116th gerald, 457 U.S. 800, 812 n.19 (1982) (‘‘[A] deriv- ment trial in American history; it especially Cong. (2019). You have asked whether the ative claim to Presidential immunity would should hear from witnesses the President Committee may compel him to testify. We be strongest in such ‘central’ Presidential blocked from testifying in the House. Presi- conclude that Mr. Mulvaney is absolutely domains as foreign policy and national secu- dent Trump cannot have it both ways. His immune from compelled congressional testi- rity, in which the President could not dis- Answer directly disputes key facts. He must mony in his capacity as a senior adviser to charge his singularly vital mandate without either surrender all evidence relevant to the the President. delegating functions nearly as sensitive as facts he has disputed or concede the facts as The Executive Branch has taken the posi- his own.’’). charged. Otherwise, this impeachment trial tion for decades that ‘‘Congress may not con- Please let us know if we may be of further will fall far short of the American system of stitutionally compel the President’s senior assistance. justice. advisers to testify about their official du- STEVEN A. ENGEL, President Trump asserts that his impeach- ties.’’ Testimonial Immunity Before Congress Assistant Attorney General. ment is a partisan ‘‘hoax.’’ He is wrong. The ofthe Former Counsel to the President, 43 Op. House duly approved Articles of impeach- O.L.C. __, at *1 (May 20, 2019). The immunity [IN PROCEEDINGS BEFORE THE UNITED ment because its Members swore Oaths to applies to those ‘‘immediate advisers . . . STATES SENATE] support and defend the Constitution against who customarily meet with the President on TRIAL MEMORANDUM OF PRESIDENT all threats, foreign and domestic. The House a regular or frequent basis.’’ Memorandum DONALD J. TRUMP has fulfilled its constitutional duty. Now, for John D. Ehrlichman, Assistant to the January 20, 2020. Senators must honor their own Oaths by

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00083 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.089 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S370 CONGRESSIONAL RECORD — SENATE January 21, 2020 holding a fair trial with all relevant evi- Trump got caught. President Trump then de- tors. Nor has any President or other official dence. The Senate should place truth above manded to Ambassador Sondland that himself defied such a subpoena—except for faction. And it should convict the President Ukraine execute the very this-for-that cor- President Nixon, who, like President Trump, on both Articles. rupt exchange that is alleged in Article I. As faced an article of impeachment for Obstruc- ARTICLE I to the second denial cited in the Answer, tion of Congress. Instead, Presidents have The House denies each and every allega- President Trump made this statement to recognized that Congressional power is at its tion in the Answer to Article I that denies Senator Ron Johnson also after having apex in an impeachment. As President James the acts, knowledge, intent, or wrongful con- learned of the whistleblower complaint, Polk stated: the ‘‘power of the House’’ in duct charged against President Trump. The while inexplicably refusing the Senator’s ur- cases of impeachment ‘‘would penetrate into House states that each and every allegation gent plea to release the military aid. In any the most secret recesses of the Executive De- in Article I is true, and that any affirmative event, these self-serving false statements are partments.’’ President Trump’s defenses are wrong. At defenses set forth in the Answer to Article I contradicted by all of the other evidence. his personal direction, nine officials refused are wholly without merit. The House further They show a cover-up and consciousness of subpoenas to testify and the White House, states that Article I properly alleges an im- guilt, not a credible defense for the Presi- Office of Management and Budget, and De- peachable offense under the Constitution, is dent. partments of State, Defense, and Energy all not subject to a motion to dismiss, and Lastly, the President notes that he met defied valid subpoenas for documents. The should be considered and adjudicated by the with President Zelensky at the U.N. General fact that President Trump caved to public Senate sitting as a Court of Impeachment. Assembly and released the aid without pressure and released two call transcripts— Article I charges President Trump with Ukraine announcing the investigations. But which, in fact, expose his guilt—hardly Abuse of Power. The President solicited and he did so only after he was caught red-hand- amounts to ‘‘transparency’’ and does not pressured a foreign nation, Ukraine, to help ed. And he still has not met with President mitigate his obstruction. him cheat in the next Presidential election Zelensky at the White House, which Ukraine Nor is President Trump’s Obstruction of by announcing two investigations: the first has long sought to demonstrate United Congress excused by his incorrect legal argu- into an American citizen who was also a po- States support in the face of Russian aggression. ments. litical opponent of his; the second into a First, the impeachment inquiry was prop- baseless conspiracy theory promoted by Rus- The Answer offers an unconvincing and implausible defense against the factual allega- erly authorized and Congressional subpoenas sia that Ukraine, not Russia, interfered in do not require a vote of the full House. the 2016 election. President Trump sought to tions in Article I. The ‘‘simple facts’’ that it recites confirm President Trump’s guilt, not Second, President Trump’s blanket and cat- coerce Ukraine into making these announce- egorical defiance of the House stemmed from ments by withholding two official acts: the his innocence. Moreover, fairness demands that if the President wants to put the facts his unilateral decision not to ‘‘participate’’ release of desperately needed military aid in the impeachment investigation, not from and a vital White House meeting. There is at issue, he must end his cover-up and provide the Senate with all of the relevant docu- any legal assertion. overwhelming evidence of the charges in Ar- Third, President Trump never actually as- ticle I, as set forth in the 111-page brief and ments and testimony. He cannot deny facts established by overwhelming evidence while serted executive privilege, a limited doctrine statement of material facts that the House that has never been accepted as a basis for submitted on January 18, 2020. concealing additional relevant evidence. The President also asserts that Article I defying impeachment subpoenas. The foreign In his Answer, the President describes affairs and national security setting of this ‘‘several simple facts’’ that prove he ‘‘did does not state an impeachable offense. In his view, the American people are powerless to impeachment does not require a different re- nothing wrong.’’ This is false. President sult here; it makes the President’s obstruc- Trump cites the record of his July 25, 2019 remove a President for corruptly using his Office to cheat in the next election by solic- tion all the more alarming. The Framers ex- phone call with President Volodymyr plicitly stated that betrayal involving for- Zelensky of Ukraine. But we have read the iting and coercing a foreign power to sabotage a rival and spread conspiracy theories eign powers is a core impeachable offense. It transcript and it confirms his guilt. It shows, follows that the House is empowered to in- first and foremost, that he solicited a foreign helpful to the President. This is the argument of a monarch, with no basis in the Con- vestigate such abuses, as all 17 current and power to announce two politically motivated former Executive Branch officials who testi- investigations that would benefit him per- stitution. Abuse of Power is an impeachable offense. fied about these matters recognized. sonally. It also indicates that he linked The Framers made this clear, including Fourth, the President’s invocation of ‘‘ab- these investigations to the release of mili- Alexander Hamilton, James Madison, James solute immunity’’ fails because this fictional tary assistance: on the call, he responded to Iredell, and Edmund Randolph. The Supreme doctrine has been rejected by every court to President Zelensky’s inquiries about U.S. Court has recognized as much, as did the consider it in similar circumstances; Presi- military support by pressing him to ‘‘do us a House Judiciary Committee in President dent Trump extended it far beyond any un- favor though’’ and pursue President Trump’s Richard Nixon’s case. derstanding by prior Presidents; and it offers desired political investigations. Astound- When the Framers wrote the Impeachment no explanation for his across-the-board re- ingly, the Answer claims that President Clause, they aimed it squarely at abuse of of- fusal to turn over every single document Trump raised the issue of ‘‘corruption’’ dur- fice for personal gain, betrayal of the na- subpoenaed. ing the July 25 call, but that word appears Finally, the President’s lawyers have ar- tional interest through foreign entangle- nowhere in the record of the call, despite the gued in court that it is constitutionally for- ments, and corruption of elections. President urging of his national security staff. In fact, bidden for the House to seek judicial enforce- Trump has engaged in the trifecta of con- President Trump did not care at all about ment of its subpoenas, even as they now stitutional misconduct warranting removal. Ukraine; he only cared about the ‘‘big stuff’’ argue in the Senate that the House is re- He is the Framers’ worst nightmare come to that affected him personally, specifically the quired to seek such enforcement. Again, life. Biden investigation. President Trump would have it both ways: President Trump also points to statements ARTICLE II he argues simultaneously that the House by ‘‘President Zelensky and other Ukrainian The House denies each and every allega- must use the courts and that it is prohibited officials’’ denying any impropriety. Yet tion in the Answer to Article II that denies from using the courts. This duplicity is poor there is clear proof that Ukrainian officials the acts, knowledge, intent, or wrongful con- camouflage for the weakness of President felt pressured by President Trump and duct charged against President Trump. The Trump’s legal arguments. More signifi- grasped the corrupt nature of his scheme. House further states that each and every al- cantly, any judicial enforcement effort For example, a Ukrainian national security legation in Article II is true, and that any would have taken years to pursue. In grant- advisor stated that President Zelensky ‘‘is affirmative defenses set forth in the Answer ing the House the ‘‘sole Power of Impeach- sensitive about Ukraine being taken seri- to Article II are wholly without merit. The ment,’’ along with the power to investigate ously, not merely as an instrument in Wash- House further states that Article II properly grounds for impeachment, the Framers did ington domestic, reelection politics.’’ As ex- alleges an impeachable offense under the not require the House to exhaust all alter- perts testified in the House, President Constitution, is not subject to a motion to native methods of obtaining evidence, espe- Zelensky remains critically dependent on dismiss, and should be considered and adju- cially when those alternatives would fail to continued United States military and diplo- dicated by the Senate sitting as a Court of deal with an immediate threat. To protect matic support. He has powerful incentives to Impeachment. the Nation, the House had to act swiftly in avoid angering President Trump. Article II charges President Trump with addressing the clear and present danger President Trump places great weight on directing the categorical and indiscriminate posed by President Trump’s misconduct. two of his own statements denying a quid pro defiance of every single subpoena served by President Trump engaged in a cover-up quo. These are hardly convincing. One denial the House in its impeachment inquiry. No that itself establishes his consciousness of the President blurted out, unprompted, to President or other official in the history of guilt. Innocent people seek to bring the Ambassador Gordon Sondland, but only after the Republic has ever ordered others to defy truth to light. In contrast, President Trump the White House had learned about a whis- an impeachment subpoena; Presidents An- has acted in the way that guilty people do tleblower complaint and the Washington drew Johnson, Richard Nixon, and Bill Clin- when they are caught and fear the facts. But Post had reported the President’s corrupt ton all allowed their most senior advisors to the stakes here are even higher than that. In scheme—in other words, after President give testimony to Congressional investiga- completely obstructing an investigation into

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00084 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.004 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S371 his own misconduct, President Trump as- he wishes, at whatever cost to the Nation, Chief of Staff honestly disclosed, President serted the prerogative to nullify Congress’s and then hide his actions from the represent- Trump has tried to hide what the evidence impeachment power itself. He placed himself atives of the American people without reper- plainly reveals: the Emperor has no clothes. above the law and eviscerated the separation cussion. Fourth, President Trump’s assertion that of powers. This claim evokes monarchy and First, President Trump’s argument that he has acted with ‘‘transparency’’ during despotism. It has no place in our democracy, abuse of power is not an impeachable offense this impeachment is yet another falsehood. where even the highest official must answer is wrong—and dangerous. That argument In fact, unlike any of his predecessors, Presi- to Congress and the Constitution. would mean that, even accepting that the dent Trump categorically refused to provide House’s recitation of the facts is correct— the House with any information and de- CONCLUSION which it is—the House lacks authority to remanded that the entire Executive Branch The House denies each and every allega- move a President who sells out our democ- coverup his misconduct. President Trump’s tion and defense in the Conclusion to the An- racy and national security in exchange for a subordinates fell in line. swer. personal political favor. The Framers of our Similarly wrong is the argument by Presi- President Trump did not engage in this Constitution took pains to ensure that such dent Trump’s lawyers that his blanket claim corrupt conduct to uphold the Presidency or egregious abuses of power would be impeach- of immunity from investigation should now protect the right to vote. He did it to cheat able. They specifically rejected a proposal to be understood as a valid assertion of execu- in the next election and bury the evidence limit impeachable offenses to treason and tive privilege—a privilege he never actually when he got caught. He has acted in ways bribery and included the term ‘‘other high invoked. And President Trump’s continued that prior Presidents expressly disavowed, Crimes and Misdemeanors.’’ 1 attempt to justify his obstruction by citing while injuring our national security and de- There can be no reasonable dispute that to constitutional separation of powers mis- mocracy. And he will persist in that mis- the Framers would have considered a Presi- understands the nature of an impeachment. conduct—which he deems ‘‘perfect’’—unless dent’s solicitation of a foreign country’s His across-the-board refusal to provide Con- and until he is removed from office. The Sen- election interference in exchange for critical gress with information and his assertion ate should do so following a fair trial. American military and diplomatic support that his own lawyers are the sole judges of Respectfully submitted, to be an impeachable offense. Nor can there Presidential privilege undermines the con- United States House of Representatives be any dispute that the Framers would have stitutional authority of the people’s rep- ADAM B. SCHIFF, recognized that allowing a President to pre- resentatives and shifts power to an imperial JERROLD NADLER, vent Congress from investigating his mis- President. ZOE LOFGREN, conduct would nullify the House’s ‘‘sole Fifth, President Trump’s complaints about HAKEEM S. JEFFRIES, Power of Impeachment.’’ 2 No amount of the House’s impeachment procedures are VAL BUTLER DEMINGS, legal rhetoric can hide the fact that Presi- meritless excuses. President Trump was of- JASON CROW, dent Trump exemplifies why the Framers in- fered an eminently fair process by the House SYLVIA R. GARCIA, cluded the impeachment mechanism in the and he will receive additional process during U.S. House of Rep- Constitution: to save the American people the Senate proceedings, which, unlike the resentatives Man- from these kinds of threats to our republic. House investigation, constitute an actual agers. Second, President Trump’s assertion that trial. As President Trump recognizes, the January 20, 2020. impeachable offenses must involve criminal Senate must ‘‘decide for itself all matters of conduct is refuted by two centuries of prece- law and fact.’’ 6 [In the Senate of the United States Sitting dent and, if accepted, would have intolerable The House provided President Trump with as a Court of Impeachment] consequences. But this argument has not process that was just as substantial—if not more so—than the process afforded other In re Impeachment of President Donald J. been accepted in previous impeachment pro- Presidents who have been subject to an im- Trump ceedings and should not be accepted here. As one member of President Trump’s legal team peachment inquiry, including the right to REPLY MEMORANDUM OF THE UNITED STATES previously conceded, President Trump’s the- call witnesses and present evidence. Because HOUSE OF REPRESENTATIVES IN THE IM- ory would mean that the President could not he had too much to hide, President Trump PEACHMENT TRIAL OF PRESIDENT DONALD J. be impeached even if he allowed an enemy did not take advantage of what the House of- TRUMP power to invade and conquer American terri- fered him and instead decided to shout from the sidelines—only to claim that the process INTRODUCTION tory.3 The absurdity of that argument dem- President Trump’s brief confirms that his onstrates why every serious constitutional he obstructed was unfair. President Trump’s lengthy trial brief does not explain why, misconduct is indefensible. To obtain a per- scholar to consider it—including the House even now, he has not offered any documents sonal political ‘‘favor’’ designed to weaken a Republicans’ own legal expert—has rejected or witnesses in his defense or provided any political rival, President Trump corruptly it.4 The Framers intentionally did not tie information in response to the House’s re- pressured the newly elected Ukrainian Presi- ‘‘high Crimes and Misdemeanors’’ to the fed- peated requests. This is not how an innocent dent into announcing two sham investiga- eral criminal code—which did not exist at person behaves. President Trump’s process tions. As leverage against Ukraine in his cor- the time of the Founding—but instead cre- arguments are simply part of his attempt to rupt scheme, President Trump illegally ated impeachment to cover severe abuses of cover up his wrongdoing and to undermine withheld hundreds of millions of dollars in the public trust like those of President the House in the exercise of its constitu- security assistance critical to Ukraine’s de- Trump. tional duty. fense against Russian aggression, as well as Third, President Trump now claims that he Finally, President Trump’s impeachment a vital Oval Office meeting. When he got had virtuous reasons for withholding from trial is an effort to safeguard our elections, caught, President Trump sought to cover up our ally Ukraine sorely needed security as- not override them. His unsupported conten- his scheme by ordering his Administration sistance and that there was no actual threat tions to the contrary have it exactly back- to disclose no information to the House of or reward as part of his proposed corrupt wards. President Trump has shown that he Representatives in its impeachment inves- bargain. But the President’s after-the-fact will use the immense powers of his office to tigation. President Trump’s efforts to hide justifications for his illegal hold on security manipulate the upcoming election to his own his misdeeds continue to this day, as do his assistance cannot fool anybody. The reason advantage. Respect for the integrity of this efforts to solicit foreign interference. Presi- President Trump jeopardized U.S. national Nation’s democratic process requires that dent Trump must be removed from office security and the integrity of our elections is President Trump be removed before he can now because he is trying to cheat his way to even more pernicious: he wanted leverage corrupt the very election that would hold victory in the 2020 Presidential election, and over Ukraine to obtain a personal, political him accountable to the American people. thereby undermine the very foundation of favor that he hoped would bolster his reelec- In addition, President Trump is wrong to our democratic system. tion bid. suggest that the impeachment trial is an at- President Trump’s lengthy brief to the If withholding the security assistance to tempt to overturn the prior election. If the Senate is heavy on rhetoric and procedural Ukraine had been a legitimate foreign policy Senate convicts and removes President grievances, but entirely lacks a legitimate act, then there is no reason President Trump from office, then the Vice President defense of his misconduct. It is clear from Trump’s staff would have gone to such elected by the American people in 2016 will his response that President Trump would lengths to hide it, and no reason President become the President.7 The logic of Presi- rather discuss anything other than what he Trump would have tried so hard to deny the dent Trump’s argument is that because he actually did. Indeed, the first 80 pages of his obvious when it came to light. It is common was elected once and stands for reelection brief do not meaningfully attempt to defend sense that innocent people do not behave again, he cannot be impeached no matter his conduct—because there is no defense for like President Trump did here. As his own how egregiously he betrays his oath of office. a President who seeks foreign election inter- Acting Chief of Staff Mick Mulvaney bluntly This type of argument would not have fooled ference to retain power and then attempts to confessed and as numerous other witnesses the Framers of our Constitution, who in- cover it up by obstructing a Congressional confirmed, there was indeed a quid pro quo cluded impeachment as a check on Presi- inquiry. The Senate should swiftly reject with Ukraine. The Trump Administration’s dents who would abuse their office for per- President Trump’s bluster and evasion, message to the American people was clear: sonal gain, like President Trump. which amount to the frightening assertion ‘‘We do that all the time with foreign pol- The Framers anticipated that a President that he may commit whatever misconduct icy.’’ 5 Instead of embracing what his Acting might one day seek to place his own personal

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00085 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.005 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S372 CONGRESSIONAL RECORD — SENATE January 21, 2020 and political interests above those of our Na- They therefore rejected a proposal to limit . . . as peculiarly injure the commonwealth tion, and they understood that foreign inter- impeachable offenses to only treason and by the abuse of high offices of trust,’’ wheth- ference in our elections was one of the bribery. They recognized the peril of setting er or not those misdeeds violate existing gravest threats to our democracy. The Fram- a rigid standard for impeachment, and adopt- statutes intended for other circumstances.24 ers also knew that periodic democratic elec- ed terminology that would encompass what Story observed that the focus was not tions cannot serve as an effective check on a George Mason termed the many ‘‘great and ‘‘crimes of a strictly legal character,’’ but President who seeks to manipulate the those dangerous offenses’’ that might ‘‘subvert the instead ‘‘what are aptly termed, political elections. The ultimate check on Presi- Constitution.’’ 13 The Framers considered and offences, growing out of personal mis- dential misconduct was provided by the rejected as too narrow the word ‘‘corrup- conduct, or gross neglect, or usurpation, or Framers through the power to impeach and tion,’’ deciding instead on the term ‘‘high habitual disregard of the public interests, in remove a President—a power that the Fram- Crimes and Misdemeanors’’ because it would the discharge of the duties of political of- ers vested in the representatives of the encompass the type of ‘‘abuse or violation of fice.’’ 25 American people. some public trust’’—the abuse of power— The fact that impeachment is not limited Indeed, on the eve of his impeachment that President Trump committed here.14 to violations of ‘‘established law’’ reflects its trial, President Trump continues to insist 2. Impeachable Conduct Need Not Violate Es- basic function as a remedy reserved for of- that he has done nothing wrong. President tablished Law. President Trump argues that a fice-holders who occupy special positions of Trump’s view that he cannot be held ac- President’s conduct is impeachable only if it trust and power. Statutes of general applica- countable, except in an election he seeks to violates a ‘‘known offense defined in existing bility do not address the ways in which those 15 to whom impeachment applies may abuse fix in his favor, underscores the need for the law.’’ That contention conflicts with con- their unique positions. Limiting impeach- Senate to exercise its solemn constitutional stitutional text, Congressional precedents, ment only to those statutes would defeat its duty to remove President Trump from office. and the overwhelming consensus of constitu- basic purpose. If the Senate does not convict and remove tional scholars. The Framers borrowed the term ‘‘high Modern constitutional scholars over- President Trump, he will have succeeded in whelmingly agree. That includes one of placing himself above the law. Each Senator Crimes and Misdemeanors’’ from British practice and state constitutions. As that President Trump’s own attorneys, who ar- should set aside partisanship and politics gued during President Clinton’s impeach- and hold President Trump accountable to term was applied in England, officials had long been impeached for non-statutory of- ment: ‘‘It certainly doesn’t have to be a protect our national security and democ- crime, if you have somebody who completely racy. fenses, such as the failure to spend money allocated by Parliament, disobeying an order corrupts the office of president, and who ARGUMENT of Parliament, and appointing unfit subordi- abuses trust and who poses great danger to 26 I. President Trump must be Removed for Abus- nates.16 The British understood impeachable our liberty.’’ More recently, that attorney ing his Power offenses to be ‘‘so various in their character, changed positions and now maintains that a A. President Trump’s Abuse of Power Is a and so indefinable in their actual involu- President cannot be impeached even for al- Quintessential Impeachable Offense tions, that it is almost impossible to provide lowing a foreign sovereign to conquer an 27 President Trump contends that he can systematically for them by positive law.’’ 17 American State. The absurdity of that argument helps explain why it has been so uni- abuse his power with impunity—in his words, American precedent confirms that the Im- formly rejected. ‘‘do whatever I want as President’’ 8—pro- peachment Clause is not confined to a statu- Even if President Trump were correct that vided he does not technically violate a stat- tory code. The articles of impeachment against President Nixon turned on his abuse the Impeachment Clause covers only conduct ute in the process. That argument is both that violates established law, his argument wrong and remarkable. History, precedent, of power, rather than on his commission of a statutory offense. Many of the specific alle- would fail. President Trump concedes that and the words of the Framers conclusively ‘‘high crimes and misdemeanors’’ encom- gations set forth in those three articles did establish that serious abuses of power—of- passes conduct that is akin to the terms that not involve any crimes. Instead, the House fenses, like President Trump’s, that threaten precede it in the Constitution—treason and Judiciary Committee emphasized that Presi- our democratic system—are impeachable. bribery.28 And there can be no reasonable dent Nixon’s conduct was ‘‘undertaken for President Trump’s own misconduct illus- dispute that his misconduct is closely akin his own personal political advantage and not trates the implications of his position. In to bribery. ‘‘The corrupt exercise of power in in furtherance of any valid national policy President Trump’s view, as long as he does exchange for a personal benefit defines im- objective’’ 18—and expressly stated that his not violate a specific statute, then the only peachable bribery.’’ 29 Here, President Trump abuses of power warranted removal regard- check on his corrupt abuse of his office for conditioned his performance of a required less whether they violated a specific stat- his personal gain is the need to face reelec- duty (disbursement of Congressionally ap- ute.19 tion—even if the very goal of his abusive be- propriated aid funds to Ukraine) on the re- Previous impeachments were in accord. In havior is to cheat in that election. If Presi- ceipt of a personal benefit (the announce- 1912, for example, Judge Archibald was im- dent Trump were to succeed in his scheme ment of investigations designed to skew the peached and convicted for using his position and win a second and final term, he would upcoming election in his favor). This con- to generate business deals with potential face no check on his conduct. The Senate duct carries all the essential qualities of litigants in his court, even though this be- should reject that dangerous position. bribery under common law and early Amer- havior had not been shown to violate any 1. The Framers Intended Impeachment as a ican precedents familiar to the Framers.30 It then-existing statute or laws regulating Remedy for Abuse of High Office. President would be all the more wrong in their view be- Trump appears to reluctantly concede that judges. The House Manager in the Archibald cause it involves a solicitation to a foreign the fear that Presidents would abuse their impeachment asserted that ‘‘[t]he decisions government to manipulate our democratic power was among the key reasons that the of the Senate of the United States, of the process. And President Trump did actually Framers adopted an impeachment remedy.9 various State tribunals which have jurisdic- violate an ‘‘established law’’: the Impound- But he contends that abuse of power was tion over impeachment cases, and of the Par- ment Control Act.31 Thus, even under his never intended to be an impeachable offense liament of England all agree that an offense, own standard, President Trump’s conduct is in its own right.10 in order to be impeachable, need not be in- impeachable. President Trump’s focus on the label to be dictable either at common law or under any 3. Corrupt Intent May Render Conduct an Im- applied to his conduct distracts from the statute.’’ 20 As early as 1803, Judge Pickering peachable Abuse of Power. President Trump fundamental point: His conduct is impeach- was impeached and then removed from office next contends that the Impeachment Clause able whether it is called an ‘‘abuse of power’’ by the Senate for refusing to allow an ap- does not encompass any abuse of power that or something else. The Senate is not engaged peal, declining to hear witnesses, and appear- turns on the President’s reasons for acting. in an abstract debate about how to cat- ing on the bench while intoxicated and Thus, according to President Trump, if he egorize the particular acts at issue; the ques- thereby ‘‘degrading the honor and dignity of could perform an act for legitimate reasons, tion instead is whether President Trump’s the United States.’’ 21 then he necessarily could perform the same conduct is impeachable because it is a seri- President Trump’s argument conflicts with act for corrupt reasons.32 That argument is ous threat to our republic. For the reasons a long history of scholarly consensus, includ- obviously wrong. set forth in the House Manager’s opening ing among ‘‘some of the most distinguished The Impeachment Clause itself forecloses brief, the answer is plainly yes. members of the [Constitutional] conven- President Trump’s argument. The specific In any event, President Trump is wrong tion.’’ 22 As a leading early treatise on the offenses enumerated in that Clause—bribery that abuses of power are not impeachable. Constitution explained, impeachable offenses and treason—both turn on the subjective in- The Framers focused on the toxic combina- ‘‘are not necessarily offences against the tent of the actor. Treason requires a ‘‘dis- tion of corruption and foreign interference— general laws . . . [for] [i]t is often found that loyal mind’’ and bribery requires corrupt in- what George Washington in his Farewell Ad- offences of a very serious nature by high offi- tent.33 Thus, a President may form a mili- dress called ‘‘one of the most baneful foes of cers are not offences against the criminal tary alliance with a foreign nation because republican government.’’ 11 James Madison code, but consist in abuses or betrayals of he believes that doing so is in the Nation’s put it simply: The President ‘‘might betray trust, or inexcusable neglects of duty.’’ 23 In strategic interests, but if the President his trust to foreign powers.’’ 12 his influential 1833 treatise, Supreme Court forms that same alliance for the purpose of To the Framers, such an abuse of power Justice Joseph Story similarly explained taking up arms and overthrowing the Con- was the quintessential impeachable conduct. that impeachment encompasses ‘‘misdeeds gress, his conduct is treasonous. Bribery

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00086 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.019 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S373 turns on similar considerations of corrupt ed was conditioned on the investigations of and Oval Office meeting on foreign policy intent. And, contrary to President Trump’s Burisma and alleged Ukrainian interference grounds when it was underway. To the con- assertion, past impeachments have con- in the 2016 U.S. elections.’’ 44 Other witnesses trary, President Trump’s lawyer Rudy cerned ‘‘permissible conduct that had been testified similarly.45 Giuliani acknowledged about his Ukraine simply done with the wrong subjective mo- President Trump’s principal answer to this work that ‘‘this isn’t foreign policy.’’ 58 tives.’’ 34 The first and second articles of im- evidence is to point to two conversations in President Trump sought to hide the scheme peachment against President Nixon, for ex- which he declared to Ambassador Sondland from the public and refused to give any example, charged him with using the powers of and Senator Ron Johnson that there was ‘‘no planation for it even within the U.S. govern- his office with the impermissible goals of ob- quid pro quo.’’ 46 Both conversations occurred ment. He persisted in the scheme after his structing justice and targeting his political after the President had been informed of the own Defense Department warned—cor- opponents—in other words, for exercising whistleblower complaint against him, at rectly—that withholding military aid appro- Presidential power based on impermissible which point he obviously had a strong mo- priated by Congress would violate federal reasons.35 tive to come up with seemingly innocent law, and after his National Security Advisor There are many acts that a President has cover stories for his misconduct. likened the arrangement to a ‘‘drug deal.’’ 59 ‘‘objective’’ authority to perform that would In addition, President Trump’s brief omits And he released the military aid shortly constitute grave abuses of power if done for the second half of what he told Ambassador after Congress announced an investiga- corrupt reasons. A President may issue a Sondland during their call. Immediately tion 60—in other words, after he got caught. pardon because the applicant demonstrates after declaring that there was ‘‘no quid pro The various explanations that President remorse and meets the standards for clem- quo,’’ the President insisted that ‘‘President Trump now presses are after-the-fact pre- ency, but if a President issued a pardon in Zelensky must announce the opening of the texts that cannot be reconciled with his ac- order to prevent a witness from testifying investigations and he should want to do tual conduct.61 against him, or in exchange for campaign do- it.’’ 47 President Trump thus conveyed that The Anti-Corruption Pretext. The evidence nations, or for other corrupt motives, his President Zelensky ‘‘must’’ announce the shows that President Trump was actually in- conduct would be impeachable—as our Su- sham investigations in exchange for Amer- different to corruption in Ukraine before preme Court unanimously recognized nearly ican support—the very definition of a quid Vice President Biden became a candidate for a century ago.36 The same principle applies pro quo, notwithstanding President Trump’s President. After Biden’s candidacy was an- here. self-serving, false statement to the contrary. nounced, President Trump remained uninter- ested in anti-corruption measures in Ukraine B. The House Has Proven that President Indeed that statement shows his conscious- beyond announcements of two sham inves- Trump Corruptly Pressured Ukraine to ness of guilt. President Trump also asserts that there tigations that would help him personally.62 Interfere in the Presidential Election for cannot have been a quid pro quo because In fact, he praised a corrupt prosecutor and His Personal Benefit President Zelensky and other Ukrainian offi- recalled a U.S. Ambassador known for her President Trump withheld hundreds of mil- cials have denied that President Trump anti-corruption efforts. President Trump did lions of dollars in military aid and an impor- acted improperly.48 But the evidence shows not seek investigations into alleged corrup- tant Oval Office meeting from Ukraine, a that Ukrainian officials understood that tion—as one would expect if anti-corruption vulnerable American ally, in a scheme to ex- they were being used ‘‘as a pawn in a U.S. re- were his goal—but instead sought only an- tort the Ukrainian government into an- election campaign.’’ 49 It is hardly surprising nouncements of investigations—because nouncing investigations that would help that President Zelensky has publicly denied those announcements are what would help President Trump and smear a potential rival the existence of a quid pro quo given that him politically. in the upcoming U.S. Presidential election. Ukraine remains critically dependent on As Ambassador Sondland testified, Presi- He has not come close to justifying that mis- continued U.S. military and diplomatic sup- dent Trump ‘‘did not give a [expletive] about conduct. port, and given that President Zelensky ac- Ukraine,’’ and instead cared only about ‘‘big 1. President Trump principally maintains cordingly has a powerful incentive to avoid stuff’’ that benefitted him personally like that he did not in fact condition the military angering an already troubled President ‘‘the Biden investigation.’’ 63 While President aid and Oval Office meeting on Ukraine’s an- Trump. Trump asserts that he released the aid in re- nouncement of the investigations—repeat- President Trump’s assertion that the evi- sponse to Ukraine’s actual progress on cor- edly asserting that there was ‘‘no quid pro dence of a quid pro quo cannot be trusted be- ruption,64 in fact he released the aid two quo.’’ 37 The overwhelming weight of the evi- cause it is ‘‘hearsay’’ is incorrect.50 The days after Congress announced an investiga- dence refutes that assertion. And President White House’s readout of the July 25 phone tion into his misconduct. And President Trump has effectively muzzled witnesses who call itself establishes that President Trump Trump’s claim that the removal of the could shed additional light on the facts. linked military assistance on President former Ukrainian prosecutor general encour- Although President Trump argues that he Zelensky’s willingness to do him a ‘‘favor’’— aged him to release the aid is astonishing.65 ‘‘did not make any connection between the which President Trump made clear was to On the July 25 call with President Zelensky, assistance and any investigation,’’ 38 his own investigate former Vice President Biden and President Trump praised that very same Acting Chief of Staff, Mick Mulvaney, ad- alleged Ukrainian election interference.51 prosecutor—and Mr. Giuliani continues to mitted the opposite during a press con- One of the people who spoke directly to meet with that prosecutor to try to dig up ference—conceding that the investigation President Trump—and whose testimony dirt on Vice President Biden to this day.66 into Ukrainian election interference was therefore was not hearsay—was Ambassador The Burden-Sharing Pretext. Until his part of ‘‘why we held up the money.’’ 39 After Sondland, who confirmed the existence of a scheme was exposed, President Trump never a reporter inquired about this concession of quid pro quo and provided some of the most attempted to attribute his hold on military a quid pro quo, Mr. Mulvaney replied, ‘‘[W]e damning testimony against President aid to a concern about other countries not do that all the time with foreign policy,’’ Trump.52 Other witnesses provided compel- sharing the burden of supporting Ukraine.67 added, ‘‘get over it,’’ and then refused to ex- ling corroborating evidence of the Presi- One reason he never attempted to justify the plain these statements by testifying in re- dent’s scheme.53 hold on these grounds is that it is not sponse to a House subpoena.40 The Presi- President Trump’s denials of the quid pro grounded in reality. Other countries in fact dent’s brief does not even address Mr. quo are, therefore, plainly false. There is a contribute substantially to Ukraine. Since Mulvaney’s admission. Ambassador Taylor term for this type of self-serving denial in 2014, the European Union and European fi- also acknowledged the quid pro quo, stating, criminal cases—a ‘‘false exculpatory’’— nancial institutions have committed over $16 ‘‘I think it’s crazy to withhold security as- which is strong evidence of guilt.54 When a billion to Ukraine.68 sistance for help with a political cam- defendant ‘‘intentionally offers an expla- In addition, President Trump never even paign.’’ 41 And Ambassador Sondland testi- nation, or makes some statement tending to asked European countries to increase their fied that the existence of a quid pro quo re- show his innocence, and this explanation or contributions to Ukraine as a condition for garding the security assistance was as clear statement is later shown to be false,’’ such a releasing the assistance. He released the as- as ‘‘two plus two equals four.’’ 42 President false statement tends to show the defend- sistance even though European countries did Trump’s lawyers also avoid responding to ant’s consciousness of guilt.55 President not change their contributions. President these statements. Trump’s denial of the quid pro quo under- Trump’s asserted concern about burden-shar- The same is true of the long-sought Oval scores that he knows his scheme to procure ing is impossible to credit given that he kept Office meeting. As Ambassador Sondland the sham investigations was improper, and his own Administration in the dark about testified: ‘‘I know that members of this com- that he is now lying to cover it up. the issue for months, never made any con- mittee frequently frame these complicated 2. President Trump next argues that he temporaneous public statements about it, issues in the form of a simple question: Was withheld urgently needed support for never asked Europe to increase its contribu- there a quid pro quo?’’ He answered that, Ukraine for reasons unrelated to his political tion,69 and released the aid without any ‘‘with regard to the requested White House interest.56 But President Trump’s asserted change in Europe’s contribution only two call and the White House meeting, the an- reasons for withholding the military aid and days after an investigation into his scheme swer is yes.’’ 43 Ambassador Taylor re- Oval Office meeting are implausible on their commenced.70 affirmed the existence of a quid pro quo re- face.57 The Burisma Pretext. The conspiracy theory garding the Oval Office meeting, testifying President Trump never attempted to jus- regarding Vice President Biden and Burisma that ‘‘the meeting President Zelensky want- tify the decision to withhold the military aid is baseless. There is no credible evidence to

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00087 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.020 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S374 CONGRESSIONAL RECORD — SENATE January 21, 2020 support the allegation that Vice President under subpoena refused to appear.81 That is a he seeks to protect. Executive privilege gen- Biden encouraged Ukraine to remove one of cover-up, and there is nothing transparent erally cannot be used to shield misconduct, its prosecutors in an improper effort to pro- about it. and it does not apply here because President tect his son. To the contrary, Biden was car- President Trump emphasizes that he pub- Trump and his associates have repeatedly rying out official U.S. policy—with bipar- licly released the memorandum of the July and publicly discussed the same matters he tisan support—when he sought that prosecu- 25 call with President Zelensky. But Presi- claims must be kept secret. tor’s ouster because the prosecutor was dent Trump did so only after the public had President Trump instead maintains that known to be corrupt.71 In any event, the already learned that he had put a hold on his advisors should be ‘‘absolutely immune’’ prosecutor’s removal made it more likely that military aid to Ukraine and after the exist- from compelled Congressional testimony.91 Ukraine would investigate Burisma, not less ence of the Intelligence Community whistle- But this claim of absolute immunity—which likely—a fact that President Trump does not blower complaint became public.82 The fact turns on the theory that certain high-level attempt to dispute. The allegations against that President Trump selectively released Presidential advisors are ‘‘alter egos’’ of the Biden are based on events that occurred in limited information under public pressure, President—cannot possibly justify the deci- late 2015 and early 2016—yet President only to obstruct the House’s investigation sion to withhold the testimony of the lower- Trump only began to push Ukraine to inves- into his corrupt scheme, does not support his level agency officials whom President Trump tigate these allegations in 2019, when it ap- assertion of transparency. ordered not to testify. Regardless, the so- peared likely that Vice President Biden B. President Trump Categorically Refused to called absolute immunity theory is an inven- would enter the 2020 Presidential race to Comply with the House’s Impeachment In- tion of the Executive Branch, and every challenge President Trump’s reelection. quiry court to consider this argument has rejected it—including the Supreme Court in an im- The Ukrainian-Election-Interference Pretext. In an impeachment investigation, the The Intelligence Community, Senate Select portant ruling requiring President Nixon to House has a constitutional entitlement to disclose the Watergate Tapes.92 In other Committee on Intelligence, and Special information concerning the President’s mis- Counsel Mueller all unanimously found that words, President Trump’s defenses depend on conduct. President Trump’s categorical ob- arguments that disgraced former President Russia—not Ukraine—interfered in the 2016 struction would, if accepted, seriously im- election. President Trump’s own FBI Direc- Nixon litigated and lost. pair the impeachment process the Framers President Trump additionally attempts to tor confirmed that American law enforce- carefully crafted to guard against Presi- ment has ‘‘no information that indicates justify his obstruction on the ground that dential misconduct.83 that Ukraine interfered with the 2016 presi- Executive Branch counsel were barred from President Trump asserts that individual- 93 dential election.’’ 72 In fact, the theory of attending House depositions. Of course, the ized disputes regarding responses to Congres- absence of counsel at depositions does not Ukrainian interference is Russian propa- sional subpoenas do not rise to the level of ganda—‘‘a fictional narrative that is being excuse the President’s refusal to disclose an impeachable offense.84 But this argument documents in response to the House’s sub- perpetrated and propagated by the Russian distorts the categorical nature of his refusal security services themselves’’ to drive a poenas. And the decades-old rule excluding to comply with the House’s impeachment in- agency counsel from House depositions—first wedge between the United States and vestigation. President Trump has refused 73 adopted by a Republican House of Represent- Ukraine. any and all cooperation and ordered his Ad- Thanks to President Trump, this Russian atives majority—exists for good reasons. It ministration to do the same. No President in propaganda effort is spreading. In November, prevents agency officials implicated in Con- our history has so flagrantly undermined the President Vladimir Putin said, ‘‘Thank God gressional investigations from misleadingly impeachment process. shaping the testimony of agency employees. no one is accusing us of interfering in the President Nixon ordered ‘‘[a]ll members of U.S. elections anymore; now they’re accus- It also protects the rights of witnesses to the White House Staff [to] appear volun- 94 74 speak freely and without fear of reprisal — ing Ukraine.’’ President Trump is correct tarily when requested by the committee,’’ to in asserting ‘‘that the United States has a a protection indisputably necessary here ‘‘testify under oath,’’ and to ‘‘answer fully given that President Trump has repeatedly compelling interest . . . in limiting the par- all proper questions.’’ 85 Even so, the Judici- ticipation of foreign citizens in activities of sought to intimidate and silence witnesses ary Committee voted to impeach him for not against him.95 American democratic self-government’’ 75— fully complying with House subpoenas when President Trump finally maintains that and that is exactly why his misconduct is so he withheld complete responses to certain complying with the impeachment inquiry harmful, and warrants removal from Office. subpoenas on executive privilege grounds. would somehow violate the constitutional II. President Trump must be removed for ob- The Committee emphasized that ‘‘the doc- separation of powers doctrine.96 This argu- structing congress trine of separation of powers cannot justify ment is exactly backwards. The President President Trump has answered the House’s the withholding of information from an im- cannot reserve the right to be the arbiter of constitutional mandate to enforce its ‘‘sole peachment inquiry’’ because ‘‘the very pur- his own privilege—particularly in an im- power of Impeachment’’ 76 with open defi- pose of such an inquiry is to permit the peachment inquiry designed by the Framers ance: obstructing this constitutional process [House], acting on behalf of the people, to of the Constitution to uncover Presidential wholesale by withholding documents, direct- curb the excesses of another branch, in this misconduct. The fact that President Trump ing witnesses not to appear, threatening instance the Executive.’’ 86 If President Nix- has found lawyers willing to concoct theories those who did, and declaring both the courts on’s obstruction of Congress raised a ‘‘slip- on which documents or testimony might be and Congress powerless to compel his com- pery slope’’ concern, then President Trump’s withheld is no basis for his refusal to comply pliance. As President Trump flatly stated, ‘‘I complete defiance takes us to the ‘‘bottom of with an impeachment inquiry. The check of have an Article II, where I have the right to the slope, surveying the damage to our Con- impeachment would be little check at all if do whatever I want as president.’’ 77 Presi- stitution.’’ 87 the law were otherwise. dent Trump now seeks to excuse his obstruc- President Trump’s attempt to fault the III. The House conducted a constitutionally tion by falsely claiming that he has been House for not using ‘‘other tools at its dis- valid impeachment process transparent and by hiding behind hypo- posal’’ to secure the withheld information— As explained in the House Managers’ open- thetical executive privilege claims that he such as seeking judicial enforcement of its ing brief, the House conducted a full and fair has never invoked and that do not apply. subpoenas 88—is astonishingly disingenuous. impeachment proceeding with robust proce- A. President Trump’s Claim of Transparency President Trump cannot tell the House that dural protections for President Trump, Ignores the Facts it must litigate the validity of its subpoenas which he tellingly chose to ignore. The Com- President Trump does not appear to dis- while simultaneously telling the courts that mittees took 100 hours of deposition testi- pute that obstructing Congress during an im- they are powerless to enforce them.89 mony from 17 witnesses with personal knowl- peachment investigation is itself an im- C. President Trump’s Assertion of Invented edge of key events, and all Members of the peachable offense. He instead falsely insists Immunities Does Not Excuse His Categor- Committees as well as Republican and that he ‘‘has been extraordinarily trans- ical Obstruction Democratic staff were permitted to attend parent about his interactions with President Having used the power of his office to and given equal opportunity to ask ques- Zelensky[].’’ 78 stonewall the House’s impeachment inquiry, tions. The Committees heard an additional President Trump’s transparency claim President Trump has now enlisted his law- 30 hours of public testimony from 12 of those bears no resemblance to the facts. In no un- yers in the White House Counsel’s Office— witnesses, including three requested by the certain terms, President Trump has stated and coopted his Department of Justice’s Of- Republicans.97 President Trump’s lawyers that ‘‘we’re fighting all the subpoenas [from fice of Legal Counsel—to justify the cover- were invited to participate at the public Congress].’’ 79 Later, through his White up.90 But his lawyers’ attempts to excuse his hearings before the Judiciary Committee.98 House Counsel, President Trump directed the obstruction do not work. Rather than do so, he urged the House: ‘‘if entire Executive Branch to defy the House’s One fact is essential to recognize: Presi- you are going to impeach me, do it now, fast, subpoenas for documents in the impeach- dent Trump has never actually invoked execu- so we can have a fair trial in the Senate.’’ 99 ment—and as a result not a single document tive privilege. That is because, under long- But faced with his Senate trial, President from the Executive Branch was produced to standing law, invoking executive privilege Trump now cites a host of procedural hurdles the House.80 He also demanded that his cur- would require President Trump to identify that he claims the House failed to satisfy. rent and former aides refuse to testify—and with particularity the documents or commu- Nobody should be fooled by this obvious as a result nine Administration officials nications containing sensitive material that gamesmanship.

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00088 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.022 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S375 A. The Constitution Does Not Authorize to be conducted in the manner the House respect. Where the articles charged Presi- President Trump to Second Guess the deems most fair, efficient, and appropriate. dent Clinton with engaging in ‘‘one or more’’ House’s Exercise of Its ‘‘Sole Power of Im- But even assuming a House vote on the sub- of several acts,131 the Articles of Impeach- peachment’’ poenas was necessary, there was such a vote ment against President Trump do not. This President Trump’s attack on the House’s here. When it adopted H. Res. 660, the House difference distinguishes President Trump’s conduct of its impeachment proceedings dis- understood that numerous subpoenas had al- case from President Clinton’s—where, in any regards the text of the Constitution, which ready been issued as part of the impeach- event, the Senate rejected the effort to have gives the House the ‘‘sole Power of Impeach- ment inquiry. As the Report accompanying the articles of impeachment dismissed as ment,’’ 100 and empowers it to ‘‘determine the the Resolution explained, these ‘‘duly au- duplicitous. The bottom line is that the Rules of its Proceedings.’’ 101 As the Supreme thorized subpoenas’’ issued to the Executive House knew precisely what it was doing Court has observed, ‘‘the word ‘sole’ ’’— Branch ‘‘remain in full force.’’ 119 when it drafted and adopted the Articles of which appears only twice in the Constitu- B. President Trump Received Fair Process Impeachment against President Trump, and deliberately avoided the possible problem tion—‘‘is of considerable significance.’’ 102 In As his lawyers well know, the various raised in the impeachment proceedings the context of the Senate’s ‘‘sole’’ power criminal trial rights that President Trump against President Clinton. over impeachment trials, the Court stressed demands have no place in the House’s im- There was no procedural flaw in the that this term means that authority is ‘‘re- peachment process.120 It is not a trial, much House’s impeachment inquiry. But even as- posed in the Senate and nowhere else’’ 103 and less a criminal trial to which Fifth or Sixth suming there were, that would be irrelevant that the Senate ‘‘alone shall have authority Amendment guarantees would attach. The to the Senate’s separate exercise of its ‘‘sole to determine whether an individual should rights President Trump has demanded have Power to try all Impeachments.’’ 132 Any be acquitted or convicted.’’ 104 The House’s never been recognized in any prior Presi- imagined defect in the House’s previous pro- ‘‘sole Power of Impeachment’’ likewise vests dential impeachment investigation, just as ceedings could be cured when the evidence is it with the independent authority to struc- they have never been recognized for a person presented to the Senate at trial. President ture its impeachment proceedings in the under investigation by a grand jury—a more Trump, after all, touted his desire to ‘‘have manner it deems appropriate. The Constitu- apt analogy to the House’s proceedings here. a fair trial in the Senate.’’ 133 And as Presi- tion leaves no room for President Trump to Although President Trump faults the dent Trump admits, it is the Senate’s ‘‘con- object to how the House, in the exercise of House for not allowing him to participate in stitutional duty to decide for itself all mat- its ‘‘sole’’ power to determine impeachment, depositions and witness interviews, no Presi- ters of law and fact bearing upon this conducted its proceedings here. dent has ever been permitted to participate trial.’’ 134 Acquitting President Trump on President Trump has no basis to assert during this initial fact-finding process. For baseless objections to the House’s process that the impeachment inquiry was ‘‘flawed example, the Judiciary Committee during would be an abdication by the Senate of this from the start’’ because it began before a for- the Nixon impeachment found ‘‘[n]o record duty. mal House vote was taken.105 Neither the . . . of any impeachment inquiry in which Constitution nor the House rules requires Respectfully submitted, the official under investigation participated United States House of Representatives such a vote.106 And notwithstanding Presi- in the investigation stage preceding com- ADAM B. SCHIFF, dent Trump’s refrain that the House’s in- mencement of Committee hearings.’’ 121 In JERROLD NADLER, quiry ‘‘violated every precedent and every both the President Nixon and President Clin- ZOE LOFGREN, principle of fairness followed in impeach- ton impeachment inquiries, the President’s HAKEEM S. JEFFRIES ment inquiries for more than 150 years,’’ 107 counsel was not permitted to participate in VAL BUTLER DEMINGS House precedent makes clear that an im- or even attend depositions and interviews of JASON CROW, peachment inquiry does not require a House witnesses.122 And in both cases, the House re- SYLVIA R. GARCIA. vote. As even President Trump is forced to lied substantially on investigative findings U.S. House of Rep- acknowledge, several impeachment inquiries by special prosecutors and grand juries, nei- resentatives Man- conducted in the House ‘‘did not begin with ther of which allowed the participation of agers. a House resolution authorizing an in- the target of the investigation.123 Indeed, the January 21, 2020. quiry.’’ 108 In fact, the House has impeached reasons grand jury proceedings are kept con- The House Managers wish to acknowledge several federal judges without ever passing fidential—‘‘to prevent subornation of perjury the assistance of the following individuals in such a resolution 109—and the Senate then or tampering with the witnesses who may preparing this reply memorandum: Douglas convicted and removed them from office.110 testify before grand jury’’ and ‘‘encourage N. Letter, Megan Barbero, Josephine Morse, Here, by contrast, the House adopted a reso- free and untrammeled disclosures by persons Adam A. Grogg, William E. Havemann, Jona- lution confirming the investigating Commit- who have information,’’ 124—apply with spe- than B. Schwartz, Christine L. Coogle, Lily tees’ authority to conduct their inquiry into cial force here, given President Trump’s Hsu, and Nate King of the House Office of ‘‘whether sufficient grounds exist for the chilling pattern of witness intimidation.125 General Counsel; Daniel Noble, Daniel S. House of Representatives to exercise its Con- In his litany of process complaints, Presi- Goldman, and Maher Bitar of the House Per- stitutional power to impeach Donald John dent Trump notably omits the fact that his manent Select Committee on Intelligence; Trump, President of the United States of counsel could have participated in the pro- Norman L. Eisen, Barry H. Berke, Joshua America.’’ 111 ceedings before the Judiciary Committee in Matz, and Sophia Brill of the House Com- President Trump is similarly mistaken multiple ways. The President, through his mittee on the Judiciary; the investigative that a formal ‘‘delegation of authority’’ to counsel, could have objected during witness staff of the House Committee on Oversight the Committees was needed at the outset.112 examinations, cross-examined witnesses, and and Reform; and David A. O’Neil, Anna A. The House adopted its Rules 113—‘‘a power submitted evidence of his own.126 President Moody, David Sarratt, Laura E. O’Neill, and that the Rulemaking Clause [of the Con- Trump simply chose not to have his counsel Elizabeth Nielsen. stitution] reserves to each House alone’’ 114— do so. Having deliberately chosen not to ENDNOTES but did not specify rules that would govern avail himself of these procedural protec- impeachment inquiries. It is thus difficult to 1. U.S. Const., Art. II, § 4. tions, President Trump cannot now pretend 2. U.S. Const., Art. I, § 2, cl. 5. understand how the House’s impeachment they did not exist. 3. See Alan Dershowitz, The Case Against inquiry could violate its rules or delegation Nor is the President entitled to have the Impeaching Trump 26–27 (2018). authority. Not only did Speaker Pelosi in- charges against him proven beyond a reason- 4. See, e.g., Jonathan Turley, Written struct the Committees to proceed with an able doubt.127 That burden of proof is appli- Statement, The Impeachment Inquiry into ‘‘impeachment inquiry,’’ 115 but in passing H. cable in criminal trials, where lives and lib- President Donald J. Trump: The ‘‘Constitu- Res. 660, the full House ‘‘directed’’ the Com- erties are at stake, not in impeachments. tional Basis’’ for Presidential Impeachment 10– mittees to ‘‘continue their ongoing inves- For this reason, the Senate has rejected the 11 (Dec. 4, 2019), https://perma.cc/92PY- tigations as part of the existing House of proof-beyond-a-reasonable-doubt standard in MBVY; Charlie Savage, ‘Constitutional Non- Representatives inquiry’’ into impeach- prior impeachments 128 and instead has ‘‘left sense’: Trump’s Impeachment Defense Defies ment.116 the choice of the applicable standard of proof Legal Consensus, N.Y. Times (Jan. 20, 2020), President Trump is wrong that the sub- to each individual Senator.’’ 129 Once again, https://perma.cc/76TD-94XT. poenas were ‘‘unauthorized and invalid’’ be- President Trump’s lawyers well know this 5. Statement of Material Facts T 121 (Jan. cause they were not approved in advance by fact. 18, 2020) (Statement of Facts) (filed as an at- the House.117 There is no requirement in ei- President Trump’s contention that the Ar- tachment to the House’s Trial Memo- ther the Constitution or the House Rules ticles of Impeachment must fail on grounds randum). that the House vote on subpoenas. Indeed, of ‘‘duplicity’’ is wrong. President Trump al- 6. Trial Memorandum of President Donald such a requirement would be inconsistent leges that the Articles are ‘‘structurally de- J. Trump at 13 (Jan. 20, 2020) (Opp.). with the operations of the House, which in ficient’’ because they ‘‘charge[] multiple dif- 7. As the then-House Managers explained modern times largely functions through its ferent acts as possible grounds for sustaining in President Clinton’s impeachment trial, Committees.118 The absence of specific proce- a conviction.’’ 130 But this simply repeats the ‘‘[t]he 25th Amendment to the Constitution dures prescribing how the House and its argument from the impeachment trial of ensures that impeachment and removal of a Committees must conduct impeachment in- President Clinton, which differed from Presi- President would not overturn an election be- quiries allows those extraordinary inquiries dent Trump’s impeachment in this critical cause it is the elected Vice President who

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00089 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.023 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S376 CONGRESSIONAL RECORD — SENATE January 21, 2020 would replace the President not the losing indictable offence, in them, to exact and re- 66. Statement of Facts T 81, 144–45. presidential candidate.’’ Reply of the U.S. ceive any thing, but what the law allows, for 67. See id. TT 41–48. House of Representatives to the Trial Mem. the performance of their legal duties,’’ be- 68. See id. TT 30–32. of President Clinton, in Proceedings of the cause ‘‘at common law, being against sound 69. See id. United States Senate in the Impeachment Trial policy, and, quasi, extortion.’’); accord Kick 70. See id. T 131. of President Willian Jefferson Clinton, Volume v. Merry, 23 Mo. 72, 75 (1856); United States v. 71. Id. II: Floor Trial Proceedings, S. Doc. No. 106–4, Matthews, 173 U.S. 381, 384–85 (1899) (col- 72. Id. T 13. at 1001 (1999). lecting cases). 73. Id. T 14. 8. Statement of Facts T 164. 31. Matter of Office of Mgmt. & Budget— 74. ‘Thank God’: Putin thrilled U.S. ‘political 9. Opp. at 57 n.383. Withholding of Ukraine Sec. Assistance, B– battles’ over Ukraine taking focus off Russia, 10. Opp. at 1–2. 331564 (Comp. Gen. Jan. 16, 2020), https:// Associated Press (Nov. 20, 2019), https:// 11. George Washington, Farewell Address perma.cc/5CDX-XLX6. perma.cc/7ZHY-44CY. (Sept. 19, 1796), George Washington Papers, Se- 32. Opp. at 28. 75. Opp. at 100. ries 2, Letterbooks 1754–1799: Letterbook 24, 33. Cramer v. United States, 325 U.S. 1, 30–31 76. U.S. Const., Art. I, § 2, cl. 5. April 3, 1793–March 3, 1797, Library of Con- (1945) (Treason); United States v. Sun- 77. Statement of Facts T 164. gress. DiamondGrowers of California, 526 U.S. 398, 78. Opp. at 35. 12. 2 The Records of the Federal Convention 404–05 (1999) (Bribery). 79. Statement of Facts T 164. of 1787, at 66 (Max Farrand ed., 1911). 34. Opp. at 30. 80. Id. TT 179–83. 13. Id. at 550. 35. See H. Rep. No. 93–1305 (1974). 81. Id. TT 186–87. 14. The Federalist No. 65 (Alexander Ham- 36. Ex Parte Grossman, 267 U.S. 87, 122 (1925) 82. See Michael D. Shear & Maggie ilton); see The Federalist Nos. 68 (Alexander (the President could be impeached for using Haberman, Do Us a Favor’’: Call Shows Hamilton); The Federalist No. 69 (Alexander his pardon power in a manner that destroys Trump’s Interest in Using U.S. Power for His Hamilton). the Judiciary’s power to enforce its orders). Gain, N.Y. Times (Sept. 25, 2019), https:// 15. Opp. at 14–16. 37. Statement of Facts T 114. perma.cc/B7P9–BPK2; Karoun Demirjian et 16. Raoul Berger, Impeachment: The Con- 38. Opp. at 81. al., Trump Ordered Hold on Military Aid Days stitutional Problems 67–69 (1973). 39. Statement of Facts T 121. Before Calling Ukrainian President, Officials 17. 2 Joseph Story, Commentaries on the 40. Id. Say, Wash. Post (Sept. 23, 2019), https:// Constitution of the United States § 762 (1833). 41. Id. T 118. perma.cc/N7PQ-K9WB; Letter from Michael The President’s brief selectively quotes 42. Id. T 101. K. Atkinson, Inspector Gen. of the Intel- Blackstone’s Commentaries for the propo- 43. Id. T 52. ligence Community, to Chairman Adam sition that impeachment in Britain required 44. Transcript, Impeachment Inquiry: Ambas- Schiff, House Permanent Select Comm. on a violation of ‘‘known and established law.’’ sador William B. Taylor and George Kent: Hear- Intelligence, and Ranking Member Devin Opp. at 15. But that reflected the well-known ing Before the H. Permanent Select Comm. on Nunes, House Permanent Select Comm. on and established nature of the parliamentary Intelligence, 116th Cong. 35 (Nov. 13, 2019) Intelligence (Sept. 9, 2019), https://perma.cc/ impeachment process, not some requirement (statement of Ambassador Taylor). K78N-SMRR. that the underlying conduct violate a then- 45. Transcript, Impeachment Inquiry: Fiona 83. See The Federalist No. 69 (Alexander existing law. See also 4 William Blackstone, Hill and David Holmes: Hearing Before the H. Hamilton). Commentaries on the Law of England *5 n.7 Permanent Select Comm. on Intelligence, 116th 84. Opp. at 48–54. (1836) (‘‘The word crime has no technical Cong. 18–19 (Nov. 21, 2019) (statement of Mr. 85. Remarks by President Nixon (Apr. 17, meaning in the law of England. It seems, Holmes) (‘‘[I]t was made clear that some ac- 1973), reprinted in Statement of Information: when it has a reference to positive law, to tion on Burisma/Biden investigation was a Hearings Before the Comm. on the Judiciary, H. comprehend those acts which subject the of- precondition for an Oval Office visit.’’). of Representatives: Book IV—Part 2, Events fender to punishment. When the words high 46. See Opp. at 87–88. Following the Watergate Break-in (1974). crimes and misdemeanors are used in prosecu- 47. Statement of Facts T 114. 86. H. Rep. No. 93–1305, at 208 (1974). tions by impeachment, the words high crimes 48. Opp. at 84–85. 87. H. Rep. No. 116–346, at 161. President have no definite signification, but are used 49. Statement of Facts T 68. Trump’s new lawyer, Kenneth Starr simi- merely to give greater solemnity to the 50. Opp. at 87. larly argued that President Clinton’s asser- charge.’’). 51. Statement of Facts T 75–80. tion of executive privilege in grand jury pro- 18. Impeachment of Richard M. Nixon, Presi- 52. See, e.g., id. T 52. ceedings, which ‘‘thereby delayed any poten- dent of the United States: Report of the Comm. 53. See, e.g., id. T 49–67. tial congressional proceedings,’’ constituted on the Judiciary, H. of Representatives, H. Rep. 54. See, e.g., United States v. Kahan, 415 U.S. conduct ‘‘inconsistent with the President’s No. 93–1305, at 139 (1974). 239, 240–41 (1974) (per curiam). Constitutional duty to faithfully execute the 19. See id. at 136. 55. United States v. Penn, 974 F.2d 1026, 1029 laws. Communication from Kenneth W. Starr, 20. Proceedings of the U.S. Senate and the (8th Cir. 1992). Independent Counsel, Transmitting a Referral House of Representatives in the Trial of Im- 56. Opp. at 89. to the United States House of Representatives peachment of Robert W. Archbald, Vol. II, S. 57. As the Supreme Court reiterated in re- Filed in Conformity with the Requirements of Doc. No. 62–1140, at 1399 (1913). jecting a different pretextual Trump Admin- Title 28, United States Code, Section 595(c), H. 21. Extracts from the Journal of the U.S. Sen- istration scheme, when reviewing the Execu- Doc. No. 105–310, at 129, 204 (1998). ate in All Cases of Impeachment Presented by tive’s conduct, it is not appropriate ‘‘to ex- 88. Opp. at 48–49 & n.336. the House of Representatives, 1798–1904, S. Doc. hibit a naivete´ from which ordinary citizens 89. See Statement of Facts 192; Def.’s Mot. No. 62–876, at 20–22 (1912). are free.’’ Dep’t of Commerce v. New York, 139 to Dismiss, or in the Alternative, for Summ. 22. S. Doc. No. 62–1140, at 1401 (1913) (citing S. Ct. 2551, 2575 (2019) (quoting United States J. at 20, Kupperman v. U.S. House of Rep- 15 The American and English Encyclopedia of v. Stanchich, 550 F.2d 1294, 1300 (2d Cir. 1977) resentatives, No. 19–3224 (D.D.C. Nov. 14, 2019), Law 1066 (John Houston Merrill ed., 1891)). (Friendly, J.)). ECF No. 40; Defs.’ and Def.-Intervenors’ Mot. 23. See Thomas M. Cooley, The General Prin- 58. Statement of Facts T 18. President to Dismiss at 46–47, Comm. on Ways & Means ciples of Constitutional Law 159 (1880). Trump’s brief never addresses the role of Mr. v. U.S. Dep’t of the Treasury, No. 19–1974 24. 2 Story § 788. Giuliani, who served as President Trump’s (D.D.C. Sept. 6, 2019), ECF No. 44; see also 25. Id. § 762. principal agent in seeking an announcement Brief for Def.-Appellant at 2, 3233, Comm. on 26. James Walker, Alan Dershowitz Said a of the investigations. the Judiciary v. McGahn, No. 19–5331 (D.C. Cir. ‘‘Technical Crime’’ Wasn’t Needed for Impeach- 59. Id. 59. Dec. 9, 2019). ment in Resurfaced 1998 Interview, Newsweek 60. Id. 131. 90. Opp. app’x C (House Committees’ Author- (Jan. 20, 2020), https://perma.cc/6JCG-2GDW 61. After Congress began investigating ity to Investigate for Impeachment, 44 Op. (Dershowitz 1998 Interview). President Trump’s conduct, the White House O.L.C. (2020)) at 1–2, 37 (opining that the 27. Dershowtiz at 26–27. Counsel’s Office reportedly conducted an in- House’s impeachment investigation was not 28. Opp. at 14. ternal review of ‘‘hundreds of documents,’’ authorized under the House’s ‘‘sole Power of 29. Impeachment of Donald J. Trump, Presi- which ‘‘reveal[ed] extensive efforts to gen- Impeachment,’’ U.S. Const., Art. I, § 2, cl. 5). dent of the United States: Report of the Comm. erate an after-the-fact justification’’ for the 91. See Opp. at 43–44. on the Judiciary of the H. of Representatives, hold ordered by President Trump. Josh 92. See United States v. Nixon, 418 U.S. 683, together with Dissenting Views, to Accompany Dawsey et al., White House Review Turns Up 706 (1974) (‘‘neither the doctrine of separation H. Res. 755, H. Rep. No. 116–346, at 42 n. 207 Emails Showing Extensive Effort to Justify of powers, nor the need for confidentiality of (2019) (quotation marks omitted); see 2 Story Trump’s Decision to Block Ukraine Military high-level communications, without more, § 794. Notably, President Trump’s counsel, Aid, Wash. Post (Nov. 24, 2019), https:// can sustain an absolute, unqualified Presi- Professor Dershowitz, indicated in a recent perma.cc/99TX-5KFE. These documents dential privilege of immunity from judicial television appearance that he and Professor would be highly relevant in this Senate trial. process’’). Tribe agree on this point. See Dershowitz 1998 62. See Statement of Facts T 88. 93. Opp. at 46–47. Interview, https://perma.cc/6JCG-2GDW. 63. Id. T 88. 94. See H. Rep. No. 116–346, at 544. 30. See, e.g., Gilmore v. Lewis, 12 Ohio 281, 286 64. Opp. at 94–95. 95. See, e.g., Statement of Facts T 190. (1843) (For ‘‘public officers, . . . [i]t is an 65. Opp. at 94. 96 Opp. at 36; see id. at 48–54.

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00090 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.024 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S377 97. See Statement of Facts TT 188–89; H. Rep. 122. Id. at 19, 21. Tricia Engle, Assistant Minority Secretary No. 116–346, at 130. 123. See id. at 17–22. Leigh Hildebrand, Assistant Parliamen- 98. Statement of FactsA6.176. 124. United States v. Procter & Gamble Co., tarian 99. H. Rep. No. 116–346, at 12 (quoting Let- 356 U.S. 677, 681 n.6 (1958). Christy Amatos, Parliamentary Clerk ter from Pat A. Cipollone, Counsel to the 125. Statement of Facts TT 177, 190. Mary Anne Clarkson, Senior Assistant President, to Jerrold Nadler, Chairman, H. 126. Statement of Facts T 163; 165 Cong. Legislative Clerk Comm. on the Judiciary (Dec. 6, 2019)). Rec. E1357 (2019) (Impeachment Inquiry Pro- Megan Pickel, Senior Assistant Journal 100. U.S. Const., Art. I, § 2, cl. 5. cedures in the Committee on the Judiciary Clerk 101. U.S. Const., Art. I, § 5, cl. 2. Pursuant to H. Res. 660); see id. at (A)(3), Adam Gottlieb, Assistant Journal Clerk 102. Nixon v. United States, 506 U.S. 224, 230 (B)(2)–(3), (C)(1)–(2), (4). Dorothy Rull, Chief Reporter (1993). 127. Opp. at 20–21. Carole Darche, Official Reporter 103. Id. at 229. 128. See, e.g., 132 Cong. Rec. S29124–94 (daily Diane Dorhamer, Official Reporter 104. Id. at 231. ed. October 7, 1986). Chantel Geneus, Official Reporter 105. Opp. at 4. 129. Cong. Research Serv., 98–990 A, Stand- Andrea Huston, Official Reporter 106. One district court presented with this ard of Proof in Senate Impeachment Pro- Catalina Kerr, Official Reporter same argument recently concluded that ‘‘[i]n ceedings 6 (1999), https://perma.cc/9YKG- Julia LaCava, Official Reporter cases of presidential impeachment, a House TJLH. Michele Melhorn, Official Reporter resolution has never, in fact, been required 130. Opp. at 107–09. Shannon Taylor-Scott, Official Reporter to begin an impeachment inquiry,’’ explain- 131. H. Res. 611, 105th Cong. (1998). Adrian Swann, Morning Business Coordi- 132. U.S. Const., Art. I, § 3, cl. 6. See also ing that the argument ‘‘has no textual sup- nator Nixon v. United States, 506 U.S. 224, 229–31 port in the U.S. Constitution [or] the gov- Sara Schwartzman, Bill Clerk (1993). erning rules of the House.’’ In re Application Jeff Minear, Counselor to the Chief Justice of Comm. on Judiciary, U.S. House of Rep- 133. H. Rep. No. 116–346, at 12 (quoting Let- PROGRAM resentatives, for an Order Authorizing Release ter from Pat A. Cipollone, Counsel to the of Certain Grand Jury Materials, No. 19–48 President, to Jerrold Nadler, Chairman, H. Mr. MCCONNELL. Mr. Chief Justice, (BAH), 2019 WL 5485221, at *27 (D.D.C. Oct. 25, Comm. on the Judiciary (Dec. 6, 2019)). for the further information of all Sen- 2019). Although both President Trump and 134. Opp. at 13. ators, I am about to send a resolution the Office of Legal Counsel of the Depart- The CHIEF JUSTICE. I note the pres- to the desk that provides for an outline ment of Justice go to great lengths to criti- ence in the Senate Chamber of the of the next steps in these proceedings. cize the district court’s analysis, see, e.g., managers on the part of the House of It will be debatable by the parties for 2 Opp. app’x C at 38 n.261, the Department of Representatives and counsel for the hours, equally divided. Senator SCHU- Justice tellingly has declined to advance these arguments in litigation on the appeal President of the United States. MER will then send an amendment to of this decision. The majority leader is recognized. the resolution to the desk. Once that 107. Opp. at 1. PRIVILEGES OF THE FLOOR amendment has been offered and re- 108. Opp. at 41. Mr. MCCONNELL. Mr. Chief Justice, corded, we will have a brief recess. 109. See In re Application of Comm. on Judici- I send to the desk a list of floor privi- When we reconvene, Senator SCHU- ary, 2019 WL 5485221, at *26 (citing pro- leges for closed sessions. It has been MER’s amendment will be debatable by ceedings relating to Judges Walter Nixon, the parties for 2 hours. Upon the use or Alcee Hastings, and Harry Claiborne). agreed to by both sides. I ask that it be 110. See Proceedings in the United States Sen- inserted in the RECORD and agreed to yielding back of time, I intend to move ate in the Impeachment Trial of Walter Nixon, by unanimous consent. to table Senator SCHUMER’s amend- Jr., a Judge of the United States District Court The CHIEF JUSTICE. Without objec- ment. for the Southern District of Mississippi, S. Doc. tion, it is so ordered. f No. 101–22, at 439 (1989); Proceedings of the FLOOR PRIVILEGES DURING CLOSED SESSION United States Senate in the Impeachment Trial PROVIDING FOR RELATED PROCE- Sharon Soderstrom, Chief of Staff, Major- of Alcee L. Hastings, a Judge of the United DURES CONCERNING THE ARTI- ity Leader States District Court for the Southern District of Scott Raab, Deputy Chief of Staff, Major- CLES OF IMPEACHMENT Florida, S. Doc. No. 101–18, at 705 (1989); Pro- ity Leader AGAINST DONALD JOHN TRUMP, ceedings of the United States Senate in the Im- Andrew Ferguson, Chief Counsel, Majority PRESIDENT OF THE UNITED peachment Trial of Harry E. Claiborne, a Judge Leader STATES of the United States District Court for the Dis- Robert Karem, National Security Advisor, Mr. Chief Justice, I send a resolution trict of Nevada, S. Doc. No. 99–48, at 298 (1986). Majority Leader 111. H. Res. 660, 116th Cong. (2019); State- Stefanie Muchow, Deputy Chief of Staff, to the desk and ask that it be read. T ment of Facts 162. Majority Leader (Cloakroom only) The CHIEF JUSTICE. The clerk will 112. See Opp. at 37–38. Nick Rossi, Chief of Staff, Assistant Major- read the resolution. 113. See H. Res. 6, 116th Cong. (2019). ity Leader The legislative clerk read as follows: 114. Barker v. Conroy, 921 F.3d 1118, 1130 Mike Lynch, Chief of Staff, Democratic (D.C. Cir. 2019) (quotation marks omitted). A resolution (S. Res. 483) to provide for re- T Leader lated procedures concerning the articles of 115. Statement of Facts 161. Erin Vaughn, Deputy Chief of Staff, Demo- 116. Id. T 162; see H. Res. 660. impeachment against Donald John Trump, cratic Leader President of the United States. 117. Opp. at 37; see Opp. at 41. Mark Patterson, Counsel, Democratic 118. See, e.g., House Rule XI.1(b)(1) (author- Resolved, That the House of Representa- Leader tives shall file its record with the Secretary izing standing committees of the House to Reginald Babin, Counsel, Democratic of the Senate, which will consist of those ‘‘conduct at any time such investigations Leader publicly available materials that have been and studies as [they] consider[] necessary or Meghan Taira, Legislative Director, Demo- submitted to or produced by the House Judi- appropriate’’); see also id. X1.2(m)(1)(B) (au- cratic Leader thorizing committees to ‘‘require, by sub- Gerry Petrella, Policy Director, Demo- ciary Committee, including transcripts of poena or otherwise, the attendance and testi- cratic Leader public hearings or markups and any mate- mony of such witnesses and the production Reema Dodin, Deputy Chief of Staff, Demo- rials printed by the House of Representatives of such books, records, correspondence, cratic Whip or the House Judiciary Committee pursuant memoranda, papers, and documents as [they] Dan Schwager, Counsel, Secretary of the to House Resolution 660. Materials in this consider[] necessary’’). Senate record will be admitted into evidence subject 119. Directing Certain Committees to Continue Mike DiSilvestro to any hearsay, evidentiary, or other objec- Their Ongoing Investigations as Part of the Ex- Pat Bryan, Senate Legal Counsel tions that the President may make after isting House of Representatives Inquiry into Morgan Frankel, Deputy Senate Legal opening presentations are concluded. All ma- Whether Sufficient Grounds Exist for the House Counsel terials filed pursuant to this paragraph shall of Representatives to Exercise its Constitutional Krista Beal, ASAA, Capitol Operations, be printed and made available to all parties. Power to Impeach Donald John Trump, Presi- (Bob Shelton will substitute for Krista Beal The President and the House of Represent- dent of the United States of America, and for if needed) atives shall have until 9 a.m. on Wednesday, Other Purposes, H. Rep. No. 116–266, at 3 Jennifer Hemingway, Deputy SAA January 22, 2020, to file any motions per- (2019). Terence Liley, General Counsel mitted under the rules of impeachment with 120. Opp. at 57. Robert Shelton, Deputy ASAA, Capitol the exception of motions to subpoena wit- 121. H. Rep. No. 116–346, at 19 (quoting Im- Operations* nesses or documents or any other evi- peachment Inquiry Staff, H. Comm. on the Brian McGinty, ASAA, Office of Security dentiary motions. Responses to any such mo- Judiciary, Memorandum: Presentation Proce- and Emergency Preparedness tions shall be filed no later than 11 a.m. on dures for the Impeachment Inquiry 11, 93d Robert Duncan, Assistant Majority Sec- Wednesday, January 22, 2020. All materials Cong. (1974)). retary filed pursuant to this paragraph shall be

VerDate Sep 11 2014 20:04 Feb 11, 2020 Jkt 099060 PO 00000 Frm 00091 Fmt 4624 Sfmt 0634 E:\RECORD20\JANUARY\S21JA0.REC S21JA0 sradovich on DSKJLST7X2PROD with CONG-REC-ONLINE S378 CONGRESSIONAL RECORD — SENATE January 21, 2020 filed with the Secretary and be printed and agers to stand up and make their open- even if this conduct is proved, that made available to all parties. ing statement and make their case. there is nothing that the House or this Arguments on such motions shall begin at They have delayed bringing this im- Senate may do about it. It is the Presi- 1 p.m. on Wednesday, January 22, 2020, and peachment to this body for 33 days, and each side may determine the number of per- dent’s apparent belief that under arti- sons to make its presentation, following it is time to start with this trial. It is cle II he can do anything he wants, no which the Senate shall deliberate, if so or- a fair process. They will have the op- matter how corrupt, outfitted in gaudy dered under the impeachment rules, and vote portunity to stand up and make their legal clothing. on any such motions. opening statement. They will get 24 And yet, when the Founders wrote Following the disposition of such motions, hours to do that. Then the President’s the impeachment clause, they had pre- or if no motions are made, then the House of attorneys will have a chance to re- cisely this type of misconduct in Representatives shall make its presentation spond. After that, all of you will have mind—conduct that abuses the power in support of the articles of impeachment for 16 hours to ask whatever questions you a period of time not to exceed 24 hours, over of his office for personal benefit, that up to 3 session days. Following the House of have of either side. Once that is fin- undermines our national security, that Representatives’ presentation, the President ished and you have all of that informa- invites foreign interference in our shall make his presentation for a period not tion, we will proceed to the question of democratic process of an election. It is to exceed 24 hours, over up to 3 session days. witnesses and some of the more dif- the trifecta of constitutional mis- Each side may determine the number of per- ficult questions that will come before conduct justifying impeachment. sons to make its presentation. this body. In article II the President is charged Upon the conclusion of the President’s We are in favor of this. We believe with other misconduct that would like- presentation, Senators may question the that once you hear those initial presen- wise have alarmed the Founders—the parties for a period of time not to exceed 16 tations, the only conclusion will be hours. full, complete, and absolute obstruc- Upon the conclusion of questioning by the that the President has done absolutely tion of a coequal branch of govern- Senate, there shall be 4 hours of argument nothing wrong and that these Articles ment, the Congress, during the course by the parties, equally divided, followed by of Impeachment do not begin to ap- of its impeachment investigation into deliberation by the Senate, if so ordered proach the standard required by the the President’s own misconduct. This under the impeachment rules, on the ques- Constitution, and, in fact, they them- is every bit as destructive to our con- tion of whether it shall be in order to con- selves will establish nothing beyond stitutional order as the misconduct sider and debate under the impeachment those articles. You will look at those charged in the first article. rules any motion to subpoena witnesses or articles alone, and you will determine documents. The Senate, without any inter- If a President can obstruct his own that there is absolutely no case. investigation, if he can effectively nul- vening action, motion, or amendment, shall So we respectfully ask you to adopt then decide by the yeas and nays whether it lify a power the Constitution gives shall be in order to consider and debate this resolution so that we can begin solely to Congress—indeed, the ulti- under the impeachment rules any motion to with this process. It is long past time mate power—the ultimate power the subpoena witnesses or documents. to start this proceeding, and we are Constitution gives to prevent Presi- Following the disposition of that question, here today to do it, and we hope that dential misconduct, then, the Presi- other motions provided under the impeach- the House managers will agree with us ment rules shall be in order. dent places himself beyond account- and begin this proceeding today. ability, above the law. He cannot be in- If the Senate agrees to allow either the We reserve the remainder of our time dicted, cannot be impeached. It makes House of Representatives or the President to for rebuttal. subpoena witnesses, the witnesses shall first Mr. Manager SCHIFF. Mr. Chief Jus- him a monarch, the very evil against be deposed and the Senate shall decide after tice, Senators, and counsel for the which our Constitution and the balance deposition which witnesses shall testify, pur- of powers it carefully laid out was de- suant to the impeachment rules. No testi- President, the House managers, on behalf of the House of Representatives, signed to guard against. mony shall be admissible in the Senate un- Shortly, the trial in these charges rise in opposition to Leader MCCON- less the parties have had an opportunity to will begin, and when it has concluded, depose such witnesses. NELL’s resolution. At the conclusion of the deliberations by Let me begin by summarizing why. you will be asked to make several de- the Senate, the Senate shall vote on each ar- Last week we came before you to terminations. Did the House prove that ticle of impeachment. present the Articles of Impeachment the President abused his power by The CHIEF JUSTICE. The resolution against the President of the United seeking to coerce a foreign nation to is arguable by the parties for 2 hours, States for only the third time in our help him cheat in the next election; equally divided. history. Those articles charge Presi- and did he obstruct the Congress in its Mr. Manager Schiff, are you a pro- dent Donald John Trump with abuse of investigation into his own misconduct ponent or an opponent of this motion? power and obstruction of Congress. The by ordering his agencies and officers to Mr. Manager SCHIFF. Mr. Chief Jus- misconduct set out in those articles is refuse to cooperate in any way—to tice, the House managers are in opposi- the most serious ever charged against a refuse to testify, to refuse to answer tion to this resolution. President. subpoenas for documents, and through The CHIEF JUSTICE. Thank you. The first article, abuse of power, every other means. Mr. Cipollone, are you a proponent or charges the President with soliciting a And if the House has proved its an opponent of the motion? foreign power to help him cheat in the case—and we believe the evidence will Mr. Counsel CIPOLLONE. We are a next election. Moreover, it alleges— not be seriously contested—you will proponent of the motion. and we will prove—that he sought to have to answer at least one other crit- The CHIEF JUSTICE. Mr. Cipollone, coerce Ukraine into helping him cheat ical question: Does the commission of your side may proceed first, and we by withholding official acts—two offi- these high crimes and misdemeanors will be able to reserve rebuttal time if cial acts: a meeting that the new Presi- require the conviction and removal of you wish. dent of Ukraine desperately sought the President? Mr. Counsel CIPOLLONE. Thank with President Trump at the White We believe that it does, and that the you, Mr. Chief Justice. House to show the world and the Rus- Constitution requires that it be so or Majority Leader MCCONNELL, Demo- sians, in particular, that the Ukranian the power of impeachment must cratic Leader SCHUMER, Senators, my President had a good relationship with deemed irrelevant or a casualty to par- name is Pat Cipollone. I am here as his most important patron, the Presi- tisan times and the American people counsel to the President of the United dent of the United States. And even left unprotected against a President States. Our team is proud to be here, more perniciously, President Trump il- who would abuse his power for the very representing President Trump. legally withheld almost $400 million in purpose of corrupting the only other We support this resolution. It is a taxpayer-funded military assistance to method of accountability, our elections fair way to proceed with this trial. It is Ukraine, a nation at war with our Rus- themselves. modeled on the Clinton resolution, sian adversary, to compel Ukraine to And so you will vote to find the which had 100 Senators supporting it help him cheat in the election. President guilty or not guilty, to find the last time this body considered im- Astonishingly, the President’s trial his conduct impeachable or not impeachment. It requires the House man- brief, filed yesterday, contends that peachable. But I would submit to you

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00092 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.007 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S379 these are not the most important deci- when the witnesses are called, the doc- she decides they want to cooperate sions you will make. umentary evidence will be available with a Senate investigation or another How can that be? How can any deci- and must be available to question them impeachment inquiry and trial. Our sion you will make be more important with. Any other order makes no sense. system of checks and balances will be than guilt or innocence, than removing Next, the resolution should allow the broken. Presidents will become ac- the President or not removing the House managers to call their witnesses, countable to no one. President? and then the President should be al- Now, it has been reported that Lead- I believe the most important decision lowed to do the same, and any rebuttal er MCCONNELL has already got the in this case is the one you will make witnesses. And when the evidentiary votes to pass his resolution, the text of today. The most important question is portion of the trial ends, the parties which we did not see until last night, the question you must answer today. argue the case. You deliberate and and which has been changed even mo- Will the President and the American render a verdict. ments ago. people get a fair trial? Will there be a If there is a dispute as to whether a And they say that Leader MCCON- fair trial? particular witness is relevant or mate- NELL is a very good vote counter. None- I submit that this is an even more rial to the charges brought, under the theless, I hope that he is wrong, and important question than how you vote Senate rules, the Chief Justice would not just because I think this process— on guilt or innocence, because whether rule on the issue of materiality. the process contemplated by this reso- we have a fair trial will determine Why should this trial be different lution—is backwards and designed with whether you have a basis to render a than any other trial? The short answer a result in mind and that the result is fair and impartial verdict. It is is it shouldn’t. But Leader MCCON- not a fair trial. I hope that he is wrong foundational—the structure upon NELL’s resolution would turn the trial because whatever Senators may have which every other decision you will process on its head. His resolution re- said or pledged or committed has been make must rest. quires the House to prove its case with- superseded by an event of constitu- If you only get to see part of the evi- out witnesses, without documents, and tional dimensions. You have all now dence, if you only allow one side or the only after it is done will such questions sworn an oath—not to each other, not other a chance to present their full be entertained, with no guarantee that to your legislative leadership, not to case, your verdict will be predeter- any witnesses or any documents will be the managers or even to the Chief Jus- mined by the bias in the proceeding. If allowed even then. That process makes tice. You have sworn an oath to do im- the defendant is not allowed to intro- no sense. partial justice. That oath binds you. duce evidence of his innocence, it is not So what is the harm of waiting until That oath supersedes all else. a fair trial. So too for the prosecution. the end of the trial, of kicking the can Many of you in the Senate and many If the House cannot call witnesses or down the road on the question of docu- of us in the House have made state- introduce documents and evidence, it is ments and witnesses? Beside the fact it ments about the President’s conduct or not a fair trial. It is not really a trial is completely backwards—trial first, this trial or this motion or expecta- at all. then evidence—beside the fact that the tions. None of that matters now. That Americans all over the country are documents would inform the decision is all in the past. Nothing matters now watching us right now, and imagine on which witnesses and help in their but the oath to do impartial justice, they are on jury duty. Imagine that the questioning, the harm is this: You will and that oath requires a fair trial—fair judge walks into that courtroom and not have any of the evidence the Presi- to the President and fair to the Amer- says that she has been talking to the dent continues to conceal throughout ican people. defendant, and at the defendant’s re- most or all of the trial. But is that really possible? Or as the quest, the judge has agreed not to let And although the evidence against Founders feared, has factionalism or an the prosecution call any witnesses or the President is already overwhelming, excessive partisanship made that now introduce any documents. The judge you may never know the full scope of impossible? and the defendant have agreed that the the President’s misconduct or those One way to find out what a fair trial prosecutor may only read to the jury around him, and neither will the Amer- should look like, devoid of partisan the dry transcripts of the grand jury ican people. consideration, is to ask yourselves how proceedings. That is it. The charges here involve the sac- would you structure the trial if you Has anyone on jury duty in this rifice of our national security at home didn’t know what your party was and country ever heard a judge describe and abroad and a threat to the integ- you didn’t know what the party of the such a proceeding and call it a fair rity of the next election. If there are President was? Would it make sense to trial? Of course not. That is not a fair additional remedial steps that need to you to have the trial first and then de- trial. It is a mockery of a trial. be taken after the President’s convic- cide on witnesses and evidence later? Under the Constitution, this pro- tion, the American people must know Would that be fair to both sides? I have ceeding, the one we are in right now, is about it. to think that your answer would be no. the trial. This is not the appeal from a But if, as a public already jaded by Let me be blunt. Let me be very trial. You are not appellate court experience has come to suspect, this blunt. Right now a great many, per- judges. OK, one of you is. And unless resolution is merely the first step of an haps even most, Americans do not be- this trial is going to be different from effort orchestrated by the White House lieve there will be a fair trial. They any other impeachment trial or any to rush the trial, hide the evidence, and don’t believe that the Senate will be other kind of trial, for that matter, render a fast verdict, or worse, a fast impartial. They believe that the result you must allow the prosecution and de- dismissal to make the President go is precooked. The President will be ac- fense, the House managers and the away as quickly as possible, to cover quitted, not because he is innocent—he President’s lawyers, to call relevant up his misdeeds, then the American is not—but because the Senators will witnesses. You must subpoena docu- people will be deprived of a fair trial vote by party, and he has the votes— ments that the President has blocked and may never learn just how deep the the votes to prevent the evidence from but which bear on his guilt or inno- corruption of this administration goes coming out, the votes to make sure the cence. You must impartially do just as or what other risk to our security and public never sees it. your oath requires. elections remain hidden. The American people want a fair So what does a fair trial look like in The harm will also endure for this trial. They want to believe their sys- the context of impeachment? The short body. If the Senate allows the Presi- tem of governance is still capable of answer is it looks like every other dent to get away with such extensive rising to the occasion. They want to trial. First, the resolution should allow obstruction, it will affect the Senate’s believe that we can rise above party the House managers to obtain docu- power of subpoena and oversight just and do what is best for the country, but ments that have been withheld—first, as much as the House. The Senate’s a great many Americans don’t believe not last—because the documents will ability to conduct oversight will be be- that will happen. inform the decision about which wit- holden to the desires of this President Let’s prove them wrong. Let’s prove nesses are most important to call. And and future Presidents, whether he or them wrong.

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00093 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.008 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S380 CONGRESSIONAL RECORD — SENATE January 21, 2020 How? By convicting the President? block that would flesh out the full ex- Indeed, in some cases agencies have No, not by conviction alone, by content of the President’s misconduct and already produced documents in FOIA victing him if the House proves its case those around him. lawsuits, albeit in heavily redacted and only if the House proves its case, We have seen that, over the past few form. Witnesses with direct knowledge but by letting the House prove its case, weeks, new evidence has continued to or involvement should be heard. That by letting the House call witnesses, by come to light as the nonpartisan Gov- includes the President’s Acting Chief of letting the House obtain documents, by ernment Accountability Office has de- Staff, Mick Mulvaney; his former Na- letting the House decide how to present termined that the hold on military aid tional Security Advisor, John Bolton, its own case and not deciding it for to Ukraine was illegal and broke the who has publicly offered to testify— us—in sum, by agreeing to a fair trial. law; as John Bolton has offered to tes- two senior officials integral to imple- Now let’s turn to the precise terms of tify in the trial; as one of the Presi- menting the President’s freeze on the resolution, the history of impeach- dent’s agents, Lev Parnas, has pro- Ukraine’s military aid also have very ment trials, and what fairness and im- duced documentary evidence that relevant testimony; why not hear it?— partiality require. clarifies Mr. Giuliani’s activities on be- Robert Blair, who served as Mr. Although we have many concerns half of the President and corroborates Mulvaney’s senior adviser; Michael about the resolution, I will begin with Ambassador Sondland’s testimony that Duffey, a senior official at OMB; and its single biggest flaw. The resolution everyone was in the loop; as documents other witnesses with direct knowledge does not ensure that subpoenas will, in released under the Freedom of Infor- whom we reserve the right to call fact, be issued for additional evidence mation Act have documented the later—but these witnesses with whom that the Senate and the American peo- alarm at the Department of Defense we wish to begin the trial. ple should have—and that the Presi- that the President illegally withheld Last month, President Trump made dent continues to block—to fairly de- military support for Ukraine, an ally clear that he supported having senior cide the President’s guilt or innocence. at war with Russia, without expla- officials testifying before the Senate Moreover, it guarantees that such sub- nation; as the senior Office of Manage- during his trial, declaring that he poenas will not be issued now, when it ment and Budget official, Michael would ‘‘love’’ to have Secretary would be most valuable to the Senate, Duffey, instructed Department of De- Pompeo, Mr. Mulvaney, now former the parties, and the American people. fense officials on July 25, 90 minutes Secretary Perry, and ‘‘many other peo- According to the resolution the lead- after President Trump spoke by phone ple testify’’ in the Senate trial: er has introduced, first the Senate re- with President Zelensky, that the De- (Text of Videotape presentation:) ceives briefs and filings from the par- fense Department should pause all obli- So, when it’s fair, and it will be fair in the Senate, I would love to have Mike Pompeo, ties. Next it hears lengthy presen- gation of Ukraine military assistance tations from the House and the Presi- I’d like to have Mick, I’d love to have Rick under its purview—90 minutes after Perry and many other people testify. dent. Now my colleagues, the Presi- that call. dent’s lawyers, have described this as Mr. Manager SCHIFF. The Senate Duffey added, ‘‘Given the sensitive has an opportunity to take the Presi- opening statements. But let’s not kid nature of the request, I appreciate your ourselves; that is the trial that they dent up on his offer to make his senior keeping that information closely held aides available, including Secretaries contemplate. The opening statements to those who need to know to execute are the trial. They will either be most Perry and Pompeo. the direction.’’ But now the President is changing of the trial or they will be all of the Although the evidence is already his tune. The bluster of wanting these trial. If the Senate votes to deprive more than sufficient to convict, there witnesses to testify is over. Notwith- itself of witnesses and documents, the is simply no rational basis for the Sen- standing the fact that he has never as- opening statements will be the end of ate to deprive itself of all relevant inserted the claim of privilege in the the trial. So to say ‘‘Let’s just have the formation in making such a hugely course of the House impeachment pro- opening statements, and then we will consequential judgment. ceedings, he threatens to invoke one see’’ means ‘‘Let’s have the trial, and Moreover, as the President’s answer now in a last-ditch effort to keep the maybe we can sweep this all under the to his summons and his trial brief rest of the truth from coming out. rug.’’ made clear, the President intends to The President sends his lawyers here So we will hear these lengthy presen- contest the facts in false and mis- to breathlessly claim that these wit- tations from the House. There will be a leading ways. nesses or others cannot possibly testify question-and-answer period for the But the President should not have it because it involves national security. Senators, and then—and only then— both ways. He should not be permitted Never mind that it was the President’s after, essentially, the trial is over, to claim that the facts uncovered by actions in withholding military aid after the briefs have been filed, after the House are wrong while also con- from an ally at war that threatened the arguments have been made, and cealing mountains of evidence that our national security in the first place. after Senators have exhausted other bear precisely on those facts. Never mind that the most impeachable, questions, only then will the Senate If this body seeks impartial justice, serious offenses will always involve na- consider whether to subpoena crucial it should ensure that subpoenas are tional security because they will in- documents and witness testimony that issued and that they are issued now, volve other nations, and that mis- the President has desperately tried to before the Senate begins extended pro- conduct based on foreign entanglement conceal from this Congress and the ceedings based on a record that every is what the Framers feared most. American people—documents and wit- person in this room and every Amer- The President’s absurdist argument ness testimony that, unlike the Clin- ican watching at home knows does not amounts to this: We must endanger na- ton trial, have not yet been seen or include documents and witness testi- tional security to protect national se- heard. mony it should because the President curity. We must make a President’s It is true that the record compiled by would not allow it to be so. conduct threatening our security be- the House is overwhelming. It is true Complying with these subpoenas yond the reach of impeachment powers the record already compels the convic- would not impose a burden. The sub- if we are to save the Presidency. tion of the President in the face of un- poenas cover narrowly tailored and tar- This is dangerous nonsense. precedented resistance by the Presi- geted documents and witnesses that As Justices of the Supreme Court dent. The House has assembled a pow- the President has concealed. have underscored, the Constitution is erful case, evidence of the President’s The Senate deserves to see the docu- not a suicide pact. high crimes and misdemeanors that in- ments from the White House, the State But let us turn from the abstract to cludes direct evidence and testimony of Department, the Office of Management the very concrete, and let me show you officials who were unwilling and unwit- and Budget, and the Department of De- just one example of what the President ting in this scheme and saw it for what fense. These agencies already should is hiding in the name of national secu- it was. Yet there is still more evi- have collected and at least preserved rity. dence—relative and probative evi- these documents in response to House There is a document, which the dence—that the President continues to subpoenas. President has refused to turn over, in

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That is The administration refuses to turn scheme unfold in realtime; OMB exactly what we did here, with an un- over that document and so many more. records demonstrating evidence to fab- derstanding that the Senate has its We only know about its existence, we ricate an after-the-fact rationale for own power to compel documents and have only seen its contents because it the President’s order, showing internal testimony. was turned over by a cooperating wit- objections that the President’s orders It would be one thing if the House ness. violated the law; Defense Department had shown no interest in documents or This is what the President would records reflecting baffle and alarm that witnesses during its investigation—al- hide from you and from the American the President suspended military aid to though, even there, the House has the people. In the name of national secu- a key security partner without expla- sole right to determine its proceedings rity, he would hide graphic evidence of nation. as long as it makes the full case to the his dangerous misconduct. The only Many of the President’s aides have House, as it did—but it is quite another question is—and it is the question also followed his orders and refused to when the President is the cause of his raised by this resolution—Will you let testify. These include essential figures own complaint, when the President him? in the impeachment inquiry, including withholds witnesses and documents Last year, President Trump said that White House Chief of Staff Mick and then attempts to rely on his own article II of the Constitution would Mulvaney, former National Security noncompliance to justify further con- allow him to do anything he wanted, Advisor John Bolton, and many others cealment. and evidently believing that article II with relevant testimony, like Robert President Trump made it crystal empowered him to denigrate and defy a Blair and Michael Duffey. Mr. Blair, clear that we would never see a single coequal branch of government, he also who serves as a senior adviser to Act- document or a single witness when he declared that he would fight all sub- ing Chief of Staff Mulvaney, worked di- declared, as we just watched, that he poenas. Let’s hear the President’s own rectly with Mr. Duffey, a political ap- would fight all subpoenas. As a matter words: ‘‘Then I have an Article II, pointee in the Office of Management of history and precedent, it would be where I have the right to do whatever and Budget, to carry out the Presi- wrong to assert that the Senate is un- I want as President.’’ dent’s order to freeze vital military able to obtain and review new evidence True to his pledge to obstruct Con- and security assistance to Ukraine. during a Senate trial regardless of why The Trump administration has re- gress, when President Trump faced an evidence was not produced in the fused to disclose their communica- impeachment inquiry in the House of House. Representatives, he ordered the execu- tions, even though we know from writ- You can and should insist on receiv- tive branch to defy every single request ten testimony, public reporting, and ing all the evidence so you can render on every single subpoena. He issued even Freedom of Information Act law- impartial justice and can earn the con- suits that they were instrumental in this order through his White House fidence of the public in the Senate’s implementing the hold and extending Counsel, Pat Cipollone, on October 8— willingness to hold a fair trial. the same counsel who stood before you it at the President’s express direction Under the Constitution, the Senate even—even—as career officials warned a moment ago to defend the President’s does not just vote on impeachments. It accurately that doing so would violate misconduct. He then affirmed it again does not just debate them. Instead, it the law. is commanded by the Constitution to at a rally on October 10. The President has also made the in- Following President Trump’s cat- try all cases of impeachment. If the supportable claim that the House egorical order, we never received the Founders intended for the House to try should have enforced its subpoenas in documents and communications. It is the matter and the Senate to consider court and allowed the President’s im- important to note, in refusing to re- peachment to delay for years. If we had an appeal based on the cold record from spond to Congress, the President did done so, we would have abdicated our the other Chamber, they would have not make any—any—formal claim of constitutional duty to act on the over- said so, but they did not. Instead, they privilege, ever. Instead, Mr. Cipollone’s whelming facts before us and the evi- gave us the power to charge and you letter stated, in effect, that the Presi- dence the President was seeking to the power to try all impeachments. The Framers chose their language dent would withhold all evidence from cheat in the next election. the executive branch unless the House We could not engage in a deliberately and the structure for a reason. As Alex- surrendered to demands that would ef- protracted court process while the ander Hamilton said, the Senate is fectively place President Trump in President continued to threaten the given ‘‘awful discretion’’ in matters of charge of the inquiry into his own mis- sanctity of our elections. impeachment. The Constitution thus conduct. Resorting to the courts is also incon- speaks to Senators in their judicial Needless to say, that was a non- sistent with the Constitution that character as a court for the trial of im- starter and designed to be so. The gives the House the sole power of impeachments. It requires them to aim at President was determined to obstruct peachment. If the House were com- real demonstrations of innocence or Congress no matter what we did, and pelled to exhaust all legal remedies be- guilt and requires them to do so by his conduct since—his attacks on the fore impeaching the President, it would holding a trial. impeachment inquiry, his attacks on interpose the courts or the decision of The Senate has repeatedly subpoe- witnesses—has affirmed that the Presi- a single judge between the House and naed and received new documents, dent never had any intention to co- the power to impeach. Moreover, it often many of them while adjudicating operate under any circumstance. And would invite the President to present cases of impeachment. Moreover, the why? Because the evidence and testi- his own impeachment by endlessly liti- Senate has heard witness testimony in mony he conceals would only further gating the matter in court—appealing every one of the 15 Senate trials—full prove his guilt. The innocent do not every judgment, engaging in any frivo- Senate trials—in the history of this act this way. lous motion or device. Indeed, in the Republic, including those of Presidents Simply stated, this trial should not case of Don McGhan—the President’s Andrew Johnson and Bill Clinton. In- reward the President’s obstruction by lawyer, who was ordered to fire the deed, in President Andrew Johnson’s allowing him to control what evidence special counsel and lie about it—he was Senate impeachment trial, the House is seen and when it is seen and what subpoenaed by the House in April of managers were permitted to begin pre- evidence will remain hidden. The docu- last year, and there is still no final senting documentary evidence to the ments the President seeks to conceal judgment. Senate on the very first day of the include White House records, including A President may not defeat impeach- trial. The House managers’ initial pres- records about the President’s unlawful ment or accountability by engaging in entation of documents in President

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I Second, all of the documents in the many witnesses, ranging from 3 in would argue, in the case of a President, Clinton trial were turned over prior to President Clinton’s case to 40 in Presi- it is even more important to hear the the trial—all 90,000 pages of them—so dent Johnson’s case and well over 60 in witnesses and see the documents. they could be used in the House’s case. other impeachments. As these numbers Any conceivable doubt on this None of the documents have been make clear, the Senate has always score—and there should be none left—is turned over by the President in this heard from key witnesses when trying dispelled by the Senate’s own rules for case, and under Leader MCCONNELL’s an impeachment. trial of impeachment. Obtaining docu- proposal, none may ever be. They cer- The notion that only evidence that ments and hearing live witness testi- tainly will not be available to you or to was taken before the House should be mony is so fundamental that the Rules us during most or all of the trial. If we considered is squarely and unequivo- of Procedure and Practice in the Sen- are really going to follow the Clinton cally contrary to Senate precedent. ate When Sitting on Impeachment precedent, the Senate must insist on Nothing in law or history supports it. Trials, which date back to 19th cen- the documents now before the trial be- To start, consider Leader MCCON- tury, devote more attention to the gins. NELL’s own description of his work in a gathering, handling, and admission of Third, the issue in the Clinton trial prior Senate impeachment proceeding. new evidence than any other single was not one of calling witnesses but of In the case of Judge Claiborne, after subject. These rules expressly con- recalling witnesses. All of the key wit- serving on the Senate trial committee, template that the Senate will hear evi- nesses in the Clinton trial had testified Leader MCCONNELL described how the dence and conduct a thorough trial before the grand jury or had been inter- Senate committee ‘‘labored intensively when sitting as a Court of Impeach- viewed by the FBI—one of them, dozens for more than 2 months, amassing the ment. At every turn, they reject the of times—and their testimony was al- necessary evidence and testimony.’’ In notion that the Senate would take the ready known. President Clinton him- the same essay, Leader MCCONNELL House’s evidentiary record, blind itself self testified on camera and under oath recognized the full body’s responsi- to everything else, and vote to convict before the Senate trial. He allowed bility for amassing and digesting evi- or acquit. multiple chiefs of staff and other key dence. It was certainly a lot of evi- For example, rule VI says the Senate officials to testify, again, before the dence for the Senate to amass and di- shall have the power to compel the at- Senate trial took place. Here, none of tendance of witnesses and enforce obe- gest in that proceeding, which involved the witnesses we seek to call—none of dience to its own orders. charges against a district court judge. them—have testified or have been Rule VII authorizes the Presiding Of- The Senate heard testimony from 19 ficer to rule on all questions of evi- interviewed by the House. And, as I witnesses, and it allowed for over 2,000 dence, including, but not limited to, said, the President cannot complain pages of documents to be entered into questions of relevancy, materiality, that we did not call these witnesses be- the record over the course of that trial. and redundancy. This rule, too, pre- fore the House when their unavail- At no point did the Senate limit evi- sumes that the Senate trial will have ability was caused by the President dence to what was before the House. It testimony, giving rise to such ques- himself. Last, as you will remember—those of did the opposite, consistent with un- tions. broken Senate practice in every single Rule XI authorizes the full Senate to you who were here—the testimony in impeachment trial—every single one. designate a committee of Senators to the Clinton trial involved decorum For example, of the 40 witnesses who receive evidence and take testimony at issues that are not present here. You testified during President Johnson’s such times and places as the com- may rest assured, whatever else the Senate trial, only 3 provided testimony mittee may determine. As Rule XI case may be, such issues will not be to the House during its impeachment makes clear, the committee’s report present here. inquiry—only 3. The remaining 37 wit- must be transmitted to the full Senate In sum, the Clinton precedent—if we nesses in that Presidential impeach- for final adjudication. But nothing here are serious about it, if we are really se- ment trial testified before the Senate. in the rules states: shall prevent the rious about modeling this proceeding Similarly, the Senate’s full first im- Senate from sending for any witness after the Clinton trial—is one where all peachment trial, which involved and hearing his testimony in open Sen- the documents had been provided up charges against Judge Pickering, in- ate or by order of the Senate involving front and where all the witnesses had volved testimony from 11 witnesses, all the entire trial in the open Senate. testified up front prior to the trial. of whom were new to the impeachment Here, too, the Senate’s operative im- That is not being replicated by the proceedings and had not testified be- peachment rules expressly contemplate McConnell resolution—not in any way, fore the House. and provide for subpoenaing witnesses not in any shape, not in any form. It is There are many other examples of and hearing their testimony as part of far from it. The traditional model fol- this point, including the Senate’s most the Senate trial. lowed in President Johnson’s case and recent impeachment trial of Judge And the list goes on. all of the others is really the one that Porteous in 2010. It is one that many of These rules plainly contemplate a ro- is most appropriate to the cir- you and some of us know well. It, too, bust role for the Senate in gathering cumstances. is consistent with this longstanding and considering evidence. They reflect The Senate should address all the practice. There, the Senate heard testi- centuries of practice of accepting and documentary issues and most of the mony from 26 witnesses, 17 of whom requiring new evidence in Senate witnesses now, not later. The need to had not testified before the House dur- trials. This Senate should honor that subpoena documents and testimony ing its impeachment inquiry. practice today by rejecting this resolu- now has only increased due to the Thus, there is a definitive tradition tion. President’s obstruction for several rea- of the Senate hearing from new wit- It will be argued: What about the sons. nesses when trying Articles of Im- Clinton trial? Even if we are departing First, his obstruction has made him peachment. There has never been a rule from every other impeachment trial in uniquely and personally responsible for limiting witnesses to those who ap- history, including the impeachment of the absence of the witnesses before the peared in the House or limiting evi- President Andrew Johnson, it will be House. Having ordered them not to ap- dence before the Senate to that which argued: What about the Clinton trial? pear, he may not be heard to complain the House itself considered. As Senator Aren’t we following the same process now that they followed his orders and Hiram Johnson explained in 1934, that as in the Clinton trial? The answer is refused to testify. To do otherwise only is because the integrity of Senate im- no. rewards the President’s obstruction

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00096 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.012 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S383 and encourages future Presidents to viewed as fair, if it is not viewed as im- process—we are hearing a lot about due defy lawful process in impeachment in- partial. It should be fair to Senators, process. Due process is designed to pro- vestigations. who are tasked with the grave respon- tect the person accused. Second, if the President wishes to sibility of determining whether to con- When the Russia investigation failed, contest the facts—and his answer and vict or acquit and should do so with it devolved into the Ukraine, a quid pro trial brief indicate that he will try—he the benefit of all the facts. And it quo. When that didn’t prove out, it was must not continue to deny the Senate should be fair to the American people, then bribery or maybe extortion. access to the relevant witnesses and who deserve the full truth and who de- Somebody said—one of the Members of documents that shed light on the very serve representatives who will seek it the House said treason. Instead, we get factual matters he wishes to challenge. on their behalf. two Articles of Impeachment—two Ar- The Senate trial is not analogous to an With that, Mr. Chief Justice, I yield ticles of Impeachment that have a appeal where the parties must argue back. vague allegation about a noncrime al- the facts on the basis of the record The CHIEF JUSTICE. Mr. Cipollone, legation of abuse of power and obstruc- below. There is no record below. There Mr. Sekulow, you have 57 minutes tion of Congress. is no below. This is the trial. available. Members, managers—right here be- Third, the President must not be al- Mr. Counsel SEKULOW. Mr. Chief fore you today—who have said that ex- lowed to mislead the Senate by selec- Justice, Members of the Senate, Leader ecutive privilege and constitutional tively introducing documents while MCCONNELL, and Democratic Leader privileges have no place in these pro- withholding the vast body of docu- SCHUMER, it is also my privilege to rep- ceedings—on June 28, 2012, Attorney ments that may contradict them. This resent the President of the United General Eric Holder became the first is very important. The President must States before this Chamber. U.S. Attorney General to be held in not be allowed to mislead you by intro- Senator SCHUMER said earlier today both civil and criminal contempt. ducing documents selectively and with- that the eyes of the Founders are on Why? Because President Obama as- holding all of the rest. All of the rel- these proceedings. Indeed, that is true, serted executive privilege. evant documents should be produced so but it is the heart of the Constitution With respect to the Holder contempt there is full disclosure of the truth; that governs these proceedings. proceedings, Mr. Manager SCHIFF otherwise, there is a clear risk that the What we just heard from Manager wrote: ‘‘The White House assertion of President will continue to hide all evi- SCHIFF is that courts have no role; privilege is backed by decades of precedence harmful to his position, while se- privileges don’t apply; and what hap- dent that has recognized the need for lectively producing documents without pened in the past, we should just ig- the President and his senior advisers to any context or opportunity to examine nore. In fact, Manager SCHIFF just tried receive candid advice and information their creators. to summarize my colleague’s defense of from their top aides.’’ Finally, you may infer the Presi- the President. He said it not in his Indeed, that is correct—not because dent’s guilt from his continuing efforts words, of course, which is not the first Manager SCHIFF said it but because the to obstruct the production of docu- time Mr. SCHIFF has put words into Constitution requires it. ments and witnesses. The President transcripts that did not exist. Mr. Manager Nadler said that the ef- has said he wants witnesses like Mr. SCHIFF also talked about a fort to hold Attorney General Holder in Mulvaney and Pompeo and others to trifecta. I will give you a trifecta. Dur- contempt for refusing to comply with testify and that his interactions with ing the proceedings that took place be- various subpoenas was ‘‘politically mo- Ukraine have been perfect. Counsel has fore the Judiciary Committee, the tivated,’’ and Speaker PELOSI called affirmed today that would be the Presi- President was denied the right to the Holder matter ‘‘little more than a dent’s defense: His conduct was perfect. cross-examine witnesses; the President witch hunt.’’ It was perfect. It was perfectly fine to was denied the right to access evi- What are we dealing with here? Why coerce an ally by withholding military dence; and the President was denied are we here? Are we here because of a aid to get help cheating in the next the right to have counsel present at phone call or are we here before this election. That will be part of the Presi- hearings. That is a trifecta—a trifecta great body because, as the President dent’s defense, although albeit not that violates the Constitution of the was sworn into office, there was a de- worded in that way. United States. sire to see him removed? Now he has changed course. He does Mr. SCHIFF did say that the courts I remember in the Mueller report not want his witnesses to testify. The really don’t have a role in this. Execu- there were discussions about—remem- logical inference in any court of law tive privilege—why would that matter? ber—insurance policies. The insurance would be that the party’s continued ob- It matters because it is based on the policy didn’t work out so well, so then struction of lawful subpoenas may be Constitution of the United States. One we moved to other investigations. I construed as evidence of guilt. manager said it is you that is on trial: guess you would call them a reinsur- Let me conclude. The facts will come the Senate. He also said—and others ance or an umbrella policy. That didn’t out in the end. The documents which did—that you are not capable of abid- work out so well, and here we are the President is hiding will be released, ing by your oath. today. through the Freedom of Information Then we had the invocation of the Manager SCHIFF quoted the Supreme Act or through other means over time. ghost of the Mueller report. I know Court, and I would like to make ref- Witnesses will tell their stories in something about that report. It came erence to the Supreme Court as well. It books and film. The truth will come up empty on the issue of collusion with was then-Justice Rehnquist, later to be out. Russia. There was no obstruction. In Chief Justice Rehnquist, who wrote for The question is, Will it come out in fact, the Mueller report, contrary to the majority in United States v. Rus- time? And what answer shall we give if what these managers say today, came sell in 1973. These are the words: ‘‘ . . . we did not pursue the truth now and let to the exact opposite conclusions of we may someday be presented with a it remain hidden until it was too late what they said. situation in which the conduct of law to consider on the profound issue of the Let me quote from the House im- enforcement agents is so outrageous President’s guilt or innocence? peachment report at page 16: that due process principles would abso- There are many overlapping reasons Although President Trump has at times in- lutely bar the government from invok- for voting against this resolution, but voked the notion of due process, an impeaching judicial process to obtain a convic- they all converge on this single idea: ment trial, impeachment inquiry, is not a tion. . . . ’’ fairness. criminal trial and should not be confused That day is today. That day was a The trial should be fair to the House, with it. year ago. That day was in July when which has been wrongly deprived of Believe me, what has taken place in Special Counsel Mueller testified. I am evidence by a President who wishes to these proceedings is not to be confused not today going to take the time to re- conceal it. It should be fair to the with due process because due process view, but I will do it later, the patterns President, who will not benefit from an demands and the Constitution requires and practices of irregularities that acquittal or dismissal if the trial is not that fundamental parities and due have gone on in these investigations

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00097 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.013 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S384 CONGRESSIONAL RECORD — SENATE January 21, 2020 from the outset; but to say that the Mr. Counsel CIPOLLONE. Mr. Chief argument about. That is because they courts have no role, the rush to im- Justice, I just want to make a couple have no case. Frankly, they have no peachment, to not wait for a decision of additional points. charge. from a court on an issue as important It is very difficult to sit there and When you look at these Articles of as executive privilege—as if executive listen to Mr. SCHIFF tell the tale he Impeachment, they are not only ridicu- privilege hasn’t been utilized by Presi- just told. Let’s remember how we all lous; they are dangerous to our repub- dents since our founding. This is not got here: They made false allegations lic. And why? First of all, the notion some new concept. We don’t waive ex- about a telephone call. The President that invoking your constitutional ecutive privilege, and there is a reason of the United States declassified that rights to protect the executive branch, we keep executive privilege and we as- telephone call and released it to the that has been done by just about every sert it when necessary, and that is to public. How is that for transparency? President since George Washington— protect—to protect the Constitution When Mr. SCHIFF found out there was that is obstruction. and the separation of powers. nothing to his allegations, he focused That is our patriotic duty, Mr. The President’s opponents, in their on the second telephone call. He made SCHIFF, particularly when confronted rush to impeach, have refused to wait false and his colleagues made false al- with a wholesale trampling of constitu- for a complete judicial review. That legations about that second telephone tional rights that I am unfamiliar with was their choice. Speaker PELOSI clear- call that occurred before the one he in this country. Frankly, it is the kind ly expressed her impatience and con- had demanded. So the President of the of thing that our State Department tempt for judicial proceedings when United States declassified and released would criticize if we see it in foreign she said: ‘‘We cannot be at the mercy that telephone call. Still nothing. countries. We have never seen anything of the courts.’’ Think about that for a Again, complete transparency in a like it. moment. We cannot be at the mercy of way that, frankly, I am unfamiliar And Mr. SCHIFF said: Have I got a the courts. with any precedent of any President of deal for you. Abandon all your con- So take article III of the U.S. Con- the United States releasing a classified stitutional rights, forget about your stitution and remove it. We are acting telephone call with a foreign leader. lawyers, and come in and do exactly as if the courts are an improper venue When Mr. SCHIFF saw that his allega- what I say. to determine constitutional issues of tions were false and he knew it any- No, thank you. No, thank you. this magnitude? That is why we have way, what did he do? He went to the And then has the temerity to come courts. That is why we have a Federal House, and he manufactured a fraudu- into the Senate and say: We have no judiciary. lent version of that call. He manufac- use for courts. tured a false version of that call. He It was interesting when Professor It is outrageous. read it to the American people, and he Turley testified before the House Judi- Let me tell you another story. There didn’t tell them it was a complete fake. ciary Committee, in front of Mr. NAD- is a man named Charlie Kupperman. He Do you want to know about due proc- LER’s committee. He said: is the Deputy National Security Advi- ess? I will tell you about due process. We have three branches of government, not sor. He is the No. 2 to John Bolton. two. If you impeach a President and you Never before in the history of our coun- You have to remember that Mr. make a high crime and misdemeanor out of try has a President of the United going to courts an abuse of power, it’s your States been confronted with this kind SCHIFF wants you to forget, but you abuse of power. of impeachment proceeding in the have to remember how we got here. You know it is more than that. It is House. It wasn’t conducted by the Ju- They threatened him. They sent him a subpoena. Mr. Kupperman did whatever a lot more than that. There is a lot diciary Committee. Mr. NADLER, when more than abuse of power if you say he applied for that job, told his col- any American should be allowed to do, the courts don’t apply, constitutional leagues, when they took over the used to be allowed to do. He was forced principles don’t apply. House, that he was really good at im- to get a lawyer. He was forced to pay Let’s start with a clean slate as if peachment. for that lawyer, and he went to court. nothing happened. A lot has happened. But what happened was the pro- Mr. SCHIFF doesn’t like courts. He As we proceed in the days ahead, we ceedings took place in a basement of went to court. will lay out our case. We are going to the House of Representatives. The And he said: Judge, tell me what to put forward to the American people— President was forbidden from attend- do. I have obligations that, frankly, but, more importantly, for the Con- ing. The President was not allowed to rise to what the Supreme Court has stitution’s sake—what is taking place have a lawyer present. called the apex of executive privilege here; that this idea that we should ig- In every other impeachment pro- in the area of national security. And nore what is taking place over the last ceeding, the President has been given a then I have a subpoena from Mr. 3 years is outrageous. minimal due process. Nothing here. SCHIFF. What do I do? We believe that what Senator Not even Mr. SCHIFF’s Republican col- You know what Mr. SCHIFF did? Mr. MCCONNELL has put forward provides leagues were allowed into the SCIF. In- Kupperman went to the judge, and the due process and allows the proceedings formation was selectively leaked out. House said: Never mind. We withdraw to move forward in an orderly fashion. Witnesses were threatened. Good public the subpoena. We promise not to issue Thirty-three days—thirty-three servants were told that they would be it again. days—they held on to those impeach- held in contempt. They were told that And then they come here and ask you ment articles. Thirty-three days. It they were obstructing. to do the work that they refused to do was such a rush for our national secu- What does Mr. SCHIFF mean by ‘‘ob- for themselves. They ask you to tram- rity to impeach this President before structing’’? He means that unless you ple on executive privilege. Christmas that they then held them for do exactly what he says, regardless of Would they ever suggest that the ex- 33 days. To do what: to act as if the your constitutional rights, then, you ecutive could determine on its own House of Representatives should nego- are obstructing. what the speech or debate Clause tiate the rules of the U.S. Senate. They The President was not allowed to call means? Of course not. Would they ever didn’t hide this. This was the expressed witnesses. By the way, there is still suggest the House could invade the dis- purpose. This was the reason they did evidence in the SCIF that we haven’t cussions the Supreme Court has behind it. been allowed to see. I wonder why. No closed doors? I hope not. But they We are prepared to proceed. Majority witnesses. come here, and they ask you to do leader, Democratic minority leader, we Let’s think about something else for what they refuse to do for themselves. are prepared to proceed. In our view, a second. Let’s think about something They had a court date. They with- these proceedings should begin. else. They held these articles for 33 drew the subpoena. The evaded the de- Mr. Chief Justice, I yield the rest of days. We hear all this talk about an cision, and they are asking you to be- my time to my colleague, the White overwhelming case—an overwhelming come complicit in that evasion of the House Counsel. case that they are not even prepared courts. It is ridiculous. We should call The CHIEF JUSTICE. Mr. Cipollone. today to stand up and make an opening it out for what it is.

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00098 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.015 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S385 Obstruction for going to court? It is from the ballot. They will not tell you of United States foreign assistance, military an act of patriotism to defend the con- that. They don’t have the guts to say it assistance, or security assistance of any kind stitutional rights of the President, be- directly, but that is exactly what they to Ukraine, including but not limited to the cause if they can do it to the President, are here to do. They are asking the Ukraine Security Assistance Initiative (USAI) and Foreign Military Financing they can do it to any of you and do it Senate to attack one of the most sa- (FMF); to any American citizen, and that is cred rights we have as Americans—the (D) all documents, communications, notes, wrong. Laurence Tribe, who has been right to choose our President in an and other records created or received by Act- advising them—I guess he didn’t tell election year. It has never been done ing Chief of Staff Mick Mulvaney, then-Na- you that in the Clinton impeachment, before. It shouldn’t be done. tional Security Advisor John R. Bolton, Sen- it is dangerous to suggest that invok- The reason it has never been done is ior Advisor to the Chief of Staff Robert B. ing constitutional rights is impeach- because no one ever thought that it Blair, and other White House officials relat- able. It is dangerous. would be a good idea for our country, ing to efforts to— You know what? It is dangerous, Mr. for our children, for our grandchildren (i) solicit, request, demand, induce, persuade, or coerce Ukraine to conduct or an- SCHIFF. to try to remove a President from a nounce investigations; What are we doing here? We have the ballot, to deny the American people (ii) offer, schedule, cancel, or withhold a House that completely concocted a the right to vote based on a fraudulent White House meeting for Ukraine’s presi- process that we have never seen before. investigation conducted in secret with dent; or They lock the President out. By the no rights. (iii) hold and then release military and way, will Mr. SCHIFF give documents? I could go on and on, but my point is other security assistance to Ukraine; We asked them for documents. We very simple. It is long past time we (E) meetings at or involving the White asked them for documents when, con- start this so we can end this ridiculous House that relate to Ukraine, including but trary to his prior statements, it turned charade and go have an election. not limited to— out that his staff was working with the Thank you very much, Mr. Chief Jus- (i) President Zelensky’s inauguration on May 20, 2019, in Kiev, Ukraine, including but whistleblower. tice. not limited to President Trump’s decision We said: Let us see the documents; The CHIEF JUSTICE. Does the Presi- not to attend, to ask Vice President Pence to release them to the public. dent’s counsel yield back the remain- lead the delegation, directing Vice President We are still waiting. der of their time? Pence not to attend, and the subsequent de- The idea that they would come here Mr. Manager NADLER. We do. cision about the composition of the delega- and lecture the Senate—by the way, I The CHIEF JUSTICE. The Demo- tion of the United States; was surprised to hear that. Did you re- cratic leader is recognized. (ii) a meeting at the White House on or around May 23, 2019, involving, among oth- alize you are on trial? Mr. NADLER is AMENDMENT NO. 1284 putting you on trial. ers, President Trump, then-Special Rep- Mr. SCHUMER. Mr. Chief Justice, I resentative for Ukraine Negotiations Ambas- Everybody is on trial except for send an amendment to the desk to sub- sador Kurt Volker, then-Energy Secretary them. It is ridiculous. It is ridiculous. poena certain documents and records Rick Perry, and United States Ambassador They said in their brief: We have from the White House, and I ask that it to the European Union Gordon Sondland, as overwhelming evidence. And they are be read. well as any private meetings or conversa- afraid to make their case. Think about The CHIEF JUSTICE. The clerk will tions with those individuals before or after it. Think about it. It is common read the document. the larger meeting; sense—overwhelming evidence to im- The legislative clerk read as follows: (iii) meetings at the White House on or about July 10, 2019, involving Ukrainian offi- peach the President of the United The Senator from New York [Mr. SCHUMER] States. And then, they come here on cials Andriy Yermak and Oleksander proposes an amendment numbered 1284. Danylyuk and United States Government of- the first day and say: You know what, (Purpose: To subpoena certain White House ficials, including, but not limited to, then- we need some more evidence. documents and records) National Security Advisor John Bolton, Sec- Let me tell you something. If I At the appropriate place in the resolving retary Perry, Ambassador Volker, and Am- showed up in any court in this country clause, insert the following: bassador Sondland, to include at least a and said: Judge, my case is over- SEC. lll. Notwithstanding any other meeting in Ambassador Bolton’s office and a whelming, but I am not ready to go provision of this resolution, pursuant to subsequent meeting in the Ward Room; yet; I need more evidence before I can rules V and VI of the Rules of Procedure and (iv) a meeting at the White House on or make my case, I would get thrown out Practice in the Senate When Sitting on Im- around August 30, 2019, involving President peachment Trials— Trump, Secretary of State Mike Pompeo, in 2 seconds. And that is exactly what (1) the Chief Justice of the United States, and Secretary of Defense Mark Esper; should happen here. That is exactly through the Secretary of the Senate, shall (v) a planned meeting, later cancelled, in what should happen here. issue a subpoena to the Acting Chief of Staff Warsaw, Poland, on or around September 1, It is too much to listen to almost— of the White House commanding him to 2019 between President Trump and President the hypocrisy of the whole thing. What produce, for the time period from January 1, Zelensky, and subsequently attended by Vice are the stakes? What are the stakes? 2019, to the present, all documents, commu- President Pence; and There is an election in almost 9 nications, and other records within the pos- (vi) a meeting at the White House on or months. Months from now, there is session, custody, or control of the White around September 11, 2019, involving Presi- House, including the National Security dent Trump, Vice President Pence, and Mr. going to be an election. Senators in Council, referring or relating to— Mulvaney concerning the lifting of the hold this body the last time had very wise (A) all meetings and calls between Presi- on security assistance for Ukraine; words. They echoed the words of our dent Trump and the President of Ukraine, (F) meetings, telephone calls or conversa- Founders. ‘‘A partisan impeachment is including documents, communications, and tions related to any occasions in which Na- like stealing an election.’’ That is ex- other records related to the scheduling of, tional Security Council officials reported actly what we have. preparation for, and follow-up from the concerns to National Security Council law- Talk about the Framers’ worst night- President’s April 21 and July 25, 2019 tele- yers, including but not limited to National mare. It is a partisan impeachment phone calls, as well as the President’s Sep- Security Council Legal Advisor, John they delivered to your doorstep, in an tember 25, 2019 meeting with the President of Eisenberg, regarding matters related to Ukraine in New York; Ukraine, including but not limited to— election year. Some of you are upset (B) all investigations, inquiries, or other (i) the decision to delay military assist- because you should be in Iowa right probes related to Ukraine, including any ance to Ukraine; now, but, instead, we are here, and that relate in any way to— (ii) the July 10, 2019 meeting at the White they are not ready to go. It is out- (i) former Vice President Joseph Biden; House with Ukrainian officials; rageous. It is outrageous. (ii) Hunter Biden and any of his associates; (iii) the President’s July 25, 2019 call with The American people will not stand (iii) Burisma Holdings Limited (also the President of Ukraine; for it. I will tell you that right now. known as ‘‘Burisma’’); (iv) a September 1, 2019 meeting between They are not here to steal one election. (iv) interference or involvement by Ambassador Sondland and a Ukrainian offi- Ukraine in the 2016 United States election; cial; and They are here to steal two elections. It (v) the Democratic National Committee; or (v) the President’s September 7, 2019 call is buried in the small print of their ri- (vi) CrowdStrike; with Ambassador Sondland; diculous Articles of Impeachment. (C) the actual or potential suspension, (G) any internal review or assessment They want to remove President Trump withholding, delaying, freezing, or releasing within the White House regarding Ukraine

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00099 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.016 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S386 CONGRESSIONAL RECORD — SENATE January 21, 2020 matters following the September 9, 2019, re- First, it is worth noting they said President are in court saying the exact quest for documents from the House Perma- nothing about the resolution. They opposite of what they are telling you nent Select Committee on Intelligence, the said nothing about the resolution. today. They are saying: You cannot en- House Committee on Oversight and Reform, They made no effort to defend it. They force congressional subpoenas. That is and the House Committee on Foreign Af- fairs, including, but not limited to, docu- made no effort to even claim that this nonjusticiable. You can’t do it. ments collected that pertain to the hold on was like the Senate trial in the Clinton Counsel brings up the case involving military and other security assistance to proceeding. They made no argument Charles Kupperman, who was a deputy Ukraine, the scheduling of a White House that, well, this is different here be- to John Bolton on the National Secu- meeting for the president of Ukraine, and cause of this or that. They made no ar- rity Council, and says: He did what he any requests for investigations by Ukraine; gument about that whatsoever. They should do. He went to court to fight us. (H) the complaint submitted by a whistle- made no argument that it makes sense Well, the Justice Department took blower within the Intelligence Community to try the case and then consider docu- the position that he can’t do that. So on or around August 12, 2019, to the Inspector ments. They made no argument about these lawyers are saying he should, and General of the Intelligence Community; why it makes sense to have a trial then those lawyers are saying he (I) all meetings or calls, including requests shouldn’t. They can’t have it both for or records of meetings or telephone calls, without witnesses. scheduling items, calendar entries, White And why? Because it is indefensible. ways. House visitor records, and email or text mes- It is indefensible. No trial in America Now, interestingly, while Mr. sages using personal or work-related devices has ever been conducted like that, and Kupperman—Dr. Kupperman—went to between or among— so you heard nothing about it. And court—and they applaud him for doing (i) current or former White House officials that should be the most telling thing that—his boss, John Bolton, now says or employees, including but not limited to about counsel’s argument. there is no necessity for him to go to President Trump; and They had no defense of the McCon- court. He doesn’t have to do it. He is (ii) Rudolph W. Giuliani, Ambassador nell resolution because there is none. willing to come and talk to you. He is Sondland, Victoria Toensing, or Joseph They couldn’t defend it on the basis of willing to come and testify and tell you diGenova; and (J) former United States Ambassador to setting precedent. They couldn’t defend what he knows. The question is, Do you Ukraine Marie ‘‘Masha’’ Yovanovitch, in- it on the basis of Senate history, tradi- want to hear it? Do you want to hear cluding but not limited to the decision to tionally. They couldn’t defend it on the it? Do you want to hear from someone end her tour or recall her from the United basis of the Constitution. They who was in the meetings, someone who States Embassy in Kiev; and couldn’t defend it at all. described what the President did—this (2) the Sergeant at Arms is authorized to And so what did they say? Well, first deal between Mulvaney and Sondland— utilize the services of the Deputy Sergeant they made the representation that the as a drug deal? Do you want to know at Arms or any other employee of the United House is claiming there is no such why it was a drug deal? Do you want to States Senate in serving the subpoena au- thing as executive privilege. That is ask him why it was a drug deal? Do you thorized to be issued by this section. nonsense. No one here has ever sug- want to ask him why he repeatedly The CHIEF JUSTICE. The majority gested there is no such thing as execu- told people: Go talk to the lawyers? leader is recognized. tive privilege, but the interesting thing You should want to know. They don’t Mr. MCCONNELL. Mr. Chief Justice, here is they have never claimed execu- want you to know. They don’t want I ask the Court for a brief 15-minute re- tive privilege. Not once during the you to know. The President doesn’t cess before the parties are recognized House investigation did they ever say want you to know. to debate the Schumer amendment. that a single document was privileged Can you really live up to the oath f or a single witness had something priv- you have taken to be impartial and not RECESS SUBJECT TO THE CALL OF ileged to say. know? I don’t think you can. THE CHAIR And why didn’t they invoke privi- Now, they also made the argument lege? Why are we now? And even now that you will hear more later on from, Mr. MCCONNELL. Mr. Chief Justice, they haven’t quite invoked it? Why are apparently, Professor Dershowitz that, I ask unanimous consent that the Sen- we now? Why not in the House? well, abuse of power is not an impeach- ate stand in recess subject to the call Because in order to claim privilege, able offense. It is interesting that they of the Chair. as they know, because they are good had to go outside the realm of con- There being no objection, at 2:49 lawyers, you have to specify which doc- stitutional lawyers and scholars to a p.m., the Senate, sitting as a Court of ument, which line, which conversation, criminal defense lawyer to make that Impeachment, recessed until 3:16 p.m.; and they didn’t want to do that be- argument, because no reputable con- whereupon the Senate reassembled cause to do that the President would stitutional law expert would do that. when called to order by the Chief Jus- have to reveal the evidence of his guilt. Indeed, the one they called in the tice. That is why they made no invocation House—that Republicans called in the The CHIEF JUSTICE. There are now of privilege. House—Jonathan Turley, said exactly 2 hours of argument on Senator SCHU- Now they make the further argument the opposite. There is a reason that MER’s amendment. that the House should only be able to Jonathan Turley is not sitting at the Mr. SCHIFF, do you wish to be heard impeach after they exhaust all legal table, much to his dismay, and that is on the amendment, and as the pro- remedies, as if the Constitution says: because he doesn’t support their argu- ponent or as the opponent? The House shall have the sole power of ment. So they will cite him for one Mr. Manager SCHIFF. Mr. Chief Jus- impeachment, asterisk, but only after thing, but they will ignore him for the tice, we wish to be heard and are a pro- it goes to court in the district court, other. ponent of the amendment. then the court of appeals, then the en Now they say: Oh, the President is The CHIEF JUSTICE. Very well. banc, then the Supreme Court. Then it very transparent. He may have refused Mr. Cipollone. is remanded, and they go back up the every subpoena, every document re- Mr. Counsel CIPOLLONE. Mr. Chief chain, and it takes years. quest, but he released two documents— Justice, we are an opponent of the Why didn’t the Founders require the the document on the July 25 call and amendment. exhaustion of legal remedies? Because the document on the April 21 call. The CHIEF JUSTICE. Mr. SCHIFF, they didn’t want to put the impeach- Well, let’s face it. He was forced to you have an hour. ment process in the courts. release the record of the July 25 call Mr. Manager SCHIFF. Thank you, And you know what is interesting is when he got caught, when a whistle- Mr. Chief Justice. that while these lawyers for the Presi- blower filed a complaint, when we In a moment, I will introduce House dent are here before you today saying opened an investigation. He was forced Manager LOFGREN from California to the House should have gone to court, because he got caught. You don’t get respond on the amendment, but I did they were in court saying the House credit for transparency when you get want to take this opportunity, before may not go to court to enforce sub- caught. And what is more, what is re- certain representations became poenas. I kid you not. vealed in that, of course, is damning. congealed, to respond to my colleagues’ Other lawyers—maybe not the ones Now they point to the only other argument on the resolution at large. at this table—but other lawyers for the record he has apparently released, the

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00100 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.002 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S387 April 21 call, and that is interesting them attacking House managers, I records of the people who may have ob- too. Now, that is just a congratulatory want you to ask yourself: Away from jected to this scheme, such as Ambas- call, but what is interesting about it is what issue are they trying to distract sador Bolton. the President was urged on that call to me? What was the issue that came up This is an important impeachment bring up an issue of corruption. And, just before this? What are they trying case against the President. The most indeed, in the readout of that call the to deflect my attention from? Why important documents are going to be White House misleadingly said he did, don’t they have a better argument to at the White House. The documents but now that we have seen the record, make on the merits? Senator SCHUMER’s amendment targets we see that he didn’t. And notwith- Finally, Mr. Sekulow asked: Why are would provide more clarity and context standing counsel’s claim in their trial we here? Why are we here? about President Trump’s scheme. The brief that the President raised the Well, I will tell you why we are here: amendment prevents the President issue of corruption in his phone call, Because the President used the power from hiding evidence, as he has pre- the July 25 call, of course, that word of his office to coerce an ally at war viously tried to do. doesn’t appear in either conversation. with an adversary, at war with Russia, The House subpoenaed these docu- And why? Because the only corruption used the powers of his office to with- ments as part of the impeachment in- he cared about was the corruption that hold hundreds of millions of dollars of quiry, but the President completely re- he could help bring about. military aid that you appropriated and jected this and every document subpoe- Now, Mr. Cipollone and Mr. Sekulow we appropriated to defend an ally and naed from the House. As powerful as made the representation that Repub- defend ourselves, because it is our na- our evidence is—and make no mistake, licans were not even allowed in the tional security as well. And why? To it overwhelmingly proves his guilt—we depositions conducted in the House. fight corruption? That is nonsense, and did not receive a single document from Now, I am not going to suggest to you you know it. the executive branch agency, including that Mr. Cipollone would deliberately He withheld that money and he with- the White House itself. make a false statement. I will leave to held even meeting with him in the Oval Recent revelations from press re- it Mr. Cipollone to make those allega- Office—the President of Ukraine—be- ports, Freedom of Information Act re- tions against others. But I will tell you cause he wanted to coerce Ukraine into quests, and additional witnesses, such this: He is mistaken. He is mistaken. these sham investigations of his oppo- as Lev Parnas, underscore how rel- Every Republican on the three inves- nent that he was terrified would beat evant these documents are and, there- tigative committees was allowed to him in the next election. That is what fore, why the President has been so participate in the depositions, and, this is about. desperate to hide them and his mis- more than that, they got the same You want to say that is OK? Their conduct from Congress and the Amer- time we did. You show me another pro- brief says that is OK. The President ican people. ceeding, another Presidential impeach- has a right to do it. Under article II, we A trial without all the relevant evi- ment or other that had that kind of ac- heard the President can do whatever he dence is not a fair trial. It would be cess for the opposite party. wants. You want to say that is OK? wrong for you Senators, acting as And, now, there were depositions in Then you have got to say that every fu- judges, to be deprived of relevant evi- the Clinton impeachment. There were ture President can come into office and dence of the President’s offenses when depositions in the Nixon impeachment. they can do the same thing. Are we you are judging these most serious So what they would say is some secret prepared to say that? Well, that is why charges. It would also be unfair to the process. Well, they were the same pri- we are here. American people, who overwhelmingly vate depositions in these other im- I now yield to Representative LOF- believe the President should produce peachments as well. GREN. Finally, on a couple last points, they all relevant documents and evidence. Ms. Manager LOFGREN. Mr. Chief Now, documentary evidence is used made the argument that the President Justice, Senators, counsel for the was not allowed, in the Judiciary Com- in all trials for a simple reason. As the President, the House managers strong- mittee chaired by my colleague Chair- story goes, the documents don’t lie. ly support Senator SCHUMER’s amend- Documents give objective real-time in- man NADLER, to be present, to present evidence, to have his counsel present. ment, which would ensure a fair, legiti- sight into the events under investiga- That is also just plain wrong, just plain mate trial based on a full evidentiary tion. The need for such evidence is es- wrong. I am not going to suggest to record. pecially important in Senate impeach- you that they are being deliberately The Senate can remedy President ment trials. More than 200 years of misleading here, but it is just plain Trump’s unprecedented coverup by Senate practice make clear that docu- wrong. taking a straightforward step. It can ments are generally the first order of You have also heard my friends at ask for the key evidence that the business. They have been presented to the other table make attacks on me President has improperly blocked. Sen- the Senate before witnesses take the and Chairman NADLER. You will hear ator SCHUMER’s amendment does just stand in great volume to ensure the more of that. I am not going to do that. Senate has the evidence it needs to them the dignity of responding to The amendment authorizes the sub- evaluate the case. them, but I will say this. They make a poena for White House documents that Documentary evidence in Senate very important point, although it is are directly relevant to this case. trials has never been limited to the not the point I think they are trying to These documents focus on the Presi- documents sent by the House. The Sen- make. When you hear them attack the dent’s scheme to strong-arm Ukraine ate, throughout its existence, has exer- House managers, what you are really to announce an investigation into his cised its authority pursuant to its hearing is: We don’t want to talk about political opponent to interfere with the clear rules of procedure to subpoena the President’s guilt. We don’t want to 2020 election. documents at the outset of the trial. talk about the McConnell resolution The documents will reveal the extent We don’t know with certainty what and how patently unfair it is. We don’t of the White House’s coordination with the documents will say. We simply want to talk about how—pardon the the President’s agents, such as Ambas- want the truth, whatever that truth expression—ass-backward it is to have sador Sondland and Rudy Giuliani, who may be, and so do the American people. a trial and then ask for witnesses. And pushed the President’s so-called ‘‘drug They want to know the truth, and so so they will attack House managers be- deal’’ on Ukrainian officials. The docu- should everybody in this Chamber, re- cause maybe we can distract you for a ments will also show us how key play- gardless of party affiliation. moment from what is before you. ers inside the White House, such as the There are key reasons why this Maybe if we attack House managers, President’s Acting Chief of Staff, Mick amendment is necessary. We will begin you will be thinking about them in- Mulvaney, and his deputy, Robert by walking through the history and stead of thinking about the guilt of the Blair, helped set up the deal by exe- precedent of Senate impeachment President. cuting the freeze on all military aid trials. I will let you know about the So you will hear more of that, and and withholding a promised visit to the House’s efforts to get the documents, every time you do, every time you hear White House. The documents include which were met by the President and

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00101 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.019 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S388 CONGRESSIONAL RECORD — SENATE January 21, 2020 his administration’s categorical com- to present new evidence and submis- to the White House Acting Chief of mitment to hide all the evidence at all sion of additional documents and three Staff, Mick Mulvaney, this time com- costs, and we will address the specific witnesses. pelling the production of documents need for these subpoenaed White House The Clinton impeachment precedent from the White House by October 18. documents. I will tell you why these also shows how President Trump’s re- On October 8, before the White House documents are needed now, not at the fusal to produce any relevant docu- documents were due, the White House end of the trial, in order to ensure a ments in response to congressional sub- Counsel sent a letter to Speaker full, fair trial based on a complete evi- poenas is different from past Presi- PELOSI, stating the President’s position dentiary record. dents—different from President Clin- that President Trump and his adminis- Someone suggested incorrectly that ton, different from President Johnson, tration cannot participate in this par- the Senate is limited only to evidence and less even than President Nixon. In tisan inquiry under the circumstances. gathered before the House approved its short, not a single President has cat- The President simply declared that he Articles of Impeachment. Others have egorically refused to cooperate with an will not participate in an investigation suggested, also incorrectly, that it impeachment investigation. Not a sin- he didn’t like. would somehow be strange for the Sen- gle President has issued a blanket di- Ten days later, on October 18, the ate to issue subpoenas. These claims rection to his administration to White House Counsel sent a letter to are without any historical, preceden- produce no documents and no wit- the House, confirming that it would tial, or legal support. nesses. These are the precedents the continue to stonewall. The White Over the past two centuries, the Sen- Senate must rely on. House Counsel again stated that the ate has always understood that its sole The Senate should issue a subpoena President refused to participate. power under the Constitution to try all for documents at the very outset of the Well, the Constitution, article I, sec- impeachments requires the Senate to proceedings so that this body, the tion 2, says that the House will have sit as a Court of Impeachment and hold House managers, the President can all the sole power of impeachment, just as a trial. In fact, the Founders assigned account for those documents in their in article I, section 3, the Senate has sole authority only twice in the Con- presentations and deliberations. the sole power to try. Participation in stitution, first, giving the House sole It doesn’t make sense to request and a duly authorized congressional inves- authority to impeach, and, second, giv- receive documents after the parties tigation isn’t optional. It is not up to ing the Senate sole authority to try present their cases. The time is now to the President to decide whether to par- that impeachment. do that. So why is the amendment ticipate or not. The Constitution gives If the Founders had intended for the needed to prevent President Trump the House the sole power of impeach- Senate to serve as some kind of appel- from continuing his categorical comment. It gives the Senate the sole late body, they would have said that. mitment to hide the evidence? power to try all impeachments. In this case the House sought White But, no, instead they wrote this in arti- The President may not like being im- House documents. Why don’t we have cle I, section 3: ‘‘The Senate shall have peached, but if the President, not the them? It is not because we didn’t try. sole Power to try all Impeachments.’’ Congress, decides when impeachment It is because the White House refused The Senate has always received the proceedings are appropriate, then the to give them to us. The President’s de- relevant documents in impeachment impeachment power is no power at all. fense team seems to believe that the trials, and, indeed, the Senate’s own If you let him block from Congress and White House is permitted to com- rules of procedure and practice make from the American people the evidence pletely refuse to provide any docu- clear that new evidence will be consid- to cover up his offenses, then the im- ments without regard to whether or ered. Precedent shows this. All 15 full peachment power truly will be mean- not it is privileged. They apparently Senate impeachment trials considered believe that Congress’s authority is ingless. new evidence. With all the back-and-forth about subject to the approval of the Presi- Let’s look at a few examples that these documents, we have heard the dent. But that is not what the Con- show the Senate takes new evidence in phrase ‘‘executive privilege.’’ The stitution says. Our Constitution sets impeachment trials. President and his lawyers keep say- forth a democracy with a system of The first-ever impeachment trial in ing—they talk about a vast legal right checks and balances to ensure that no 1868 against President Andrew Johnson one, and certainly not the President, is to justify hiding the truth, withholding allowed the House managers to spend above the law. Even President Nixon information. But that is a distraction. the first 2 days of the trial introducing produced more than 30 transcripts of That is not what the Constitution pro- new documentary evidence. White House recordings and notes in vides. It was the same in Judge John The truth is, as has been mentioned the meetings with the President. Pickering’s trial in 1804. New docu- Here, even before the House launched by Mr. SCHIFF, in the course of the en- ments were presented to the Senate the investigation that led to this trial, tire impeachment inquiry, President nearly a week before House managers President Trump rejected Congress’s Trump has not once asserted executive made their opening statements and constitutional responsibility to use its privilege—not a single time. It was not later throughout the trial. lawful authority to investigate his ac- the reason provided by Mr. Cipollone As has been mentioned earlier by Mr. tions. He asserted that his administra- for refusing to comply with the House SCHIFF, in modern times, in 2010, Judge tion was fighting all the subpoenas, subpoenas. Indeed, President Trump Porteous’s impeachment trial included proclaiming: ‘‘I have an Article II, didn’t offer legal justification for with- 7 months of pretrial discovery and 6,000 where I have the right to do whatever holding the evidence. pages of documentary evidence admit- I want as President.’’ Here is the truth. The President, ted at trial. After that evidence was Here is what he said: ‘‘I have an Arti- Members of Congress, judges, and the admitted, the Senate held its trial. cle II, where I have the right to do Supreme Court have recognized President Clinton’s case did not in- whatever I want as President.’’ throughout our Nation’s history that volve subpoenas for documents. Why Even after the House formally an- Congress’s investigative powers are at was that? Because President Clinton nounced its investigation of the Presi- their absolute peak during impeach- had already produced a huge trove of dent’s conduct in Ukraine, the Presi- ment proceedings—your powers. Execu- documents. The independent counsel dent still continued his obstruction. tive privilege cannot be a barrier to turned over to Congress some 90,000 Beginning on September 9, 2019, the give absolute secrecy to cover up pages of relevant documents gathered House investigative committee made wrongdoing. If it did, the House and during the course of his years-long in- two attempts to voluntarily obtain the Senate would see their powers dis- vestigation, and I remember, as a mem- documents from the White House. The appear. ber of the Judiciary Committee, going White House refused to engage and, When President Nixon tried that ar- over to the Ford building and looking frankly, to even respond to the House gument by refusing to produce tape re- at the boxes of the documents. But committee. cordings to prosecutors and to Con- even with all those documents, the On October 4, the House Committee gress, he was soundly rebuked by the Clinton trial included the opportunity on Oversight Reform sent a subpoena other two branches of government. The

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00102 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.021 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S389 Supreme Court unanimously ruled Mr. SCHIFF. That was something the From witness testimony, we know against him. The House Judiciary Com- President was supposed to raise in the con- that Ambassador Bolton hosted the mittee voted that he be impeached for versation with President Zelensky? July 10, 2019, meeting where Ambas- obstruction of Congress. Colonel VINDMAN. Those were the rec- sador Sondland told Ukrainian officials ommended talking points that were cleared It would be remarkable for the through NSC staff for the President, yes. that the promised White House meet- United States Senate to declare for the ing would be scheduled if they an- Ms. Manager LOFGREN. The mate- first time in our Nation’s history that nounce the investigations. We know rials provided for the July 25 call that the President has an absolute right to Bolton was briefed about this meeting Lieutenant Colonel Vindman men- decide whether his own impeachment immediately following it when Ambas- tioned are highly relevant. They could trial is legitimate. It would be extraor- sador Sondland said he had a deal with help confirm that the President’s ac- dinary for the Senate to refuse to seek Mick Mulvaney to schedule the prom- tual statements to President Zelensky important documentary evidence, espe- ised White House meeting if Ukraine were unrelated to the foreign policy ob- cially when the President has yet to announced investigations into the jectives of his own administration and assert any privilege to justify with- Bidens in the 2016 election. show that they served his own personal holding documents. We also know Ambassador Bolton There is another reason this amend- interest at the expense of America’s was involved in briefing the President ment is important. The documents national security interest. on a Presidential decision memo- sought are directly relevant to the These documents also include hand- randum in August reflecting the con- President’s misconduct. The White written notes and other documents sensus interagency opinion that the House is concealing documents involv- that White House officials generated Ukrainian security assessment was ing officials who had direct knowledge during the calls and meetings. We vital to America’s national security— of key events at the heart of this trial. know, for example, that Lieutenant something the Congress had approved This isn’t just a guess. We know these Colonel Vindman, Mr. Morrison, and appropriately and something the Presi- dent had signed. documents exist from the witnesses Jennifer Williams all testified to tak- Press reports indicate that he, too, who testified in the House and from ing contemporaneous handwritten notes during the July 25 call. Ms. Wil- was involved in the late August Oval other public release of documents. Office meeting where he, Secretary Let’s walk through those specific liams and Lieutenant Colonel Vindman Pompeo, and Secretary Esper all tried documents that the White House both testified that President Zelensky to convince the President to release should send to the Senate. They in- made an exclusive reference to the aid. clude, among other documents relating Burisma that was not included in the memorandum that the White House re- Now, Ambassador Bolton has come to President Trump, direct commu- forward and publicly confirmed that he nications with President Zelensky; leased to the public. Here is a clip of their testimony. was a witness to important events but President Trump’s request for political also that he has new evidence that no investigations, including communica- [Text of Videotape presentation:] Mr. SCHIFF. Both of you recall President one has seen yet. If we know there is tions with Rudy Giuliani, Ambassador evidence that has not yet come out, all Sondland, and others; President Zelensky in that conversation raising the issue or mentioning Burisma; do you not? of us should want to hear it. We should Trump’s unlawful hold of the $391 mil- Ms. WILLIAMS. That is correct. want to hear it now before Ambassador lion of military aid; concerns that Colonel VINDMAN. Correct. Bolton testifies. We should get docu- White House officials reported to NSC Mr. SCHIFF. And yet the word ‘‘Burisma’’ ments and records relating to his testi- legal counsel in realtime; and the appears nowhere in the call record that has mony, including his notes, which would President’s decision to recall Ambas- been released to the public; is that right? provide contemporaneous evidence sador Marie Yovanovitch from Ms. WILLIAMS. That is right. Colonel VINDMAN. Correct. about what was discussed in meetings Ukraine. related to Ukraine, which would help The first set of documents the Senate Ms. Manager LOFGREN. Why do we to evaluate his testimony. should get about President Trump’s need documents generated after the The evidence is not restricted to just communication with the President of calls and meetings? They would shed Ambassador Bolton. During his public Ukraine would include the phone calls light on how these events were per- testimony, Ambassador Gordon on April 21 and July 25, as well as the ceived in the White House and what ac- Sondland stated: I have not had access September 25, 2019, meeting with Presi- tions were taken moving forward. For to all my phone records. He also said dent Zelensky in New York. example, National Security Advisor that he and his lawyers had asked re- We know, for example, that NSC offi- John Bolton wasn’t on the 25th call, peatedly for these materials. He said cials prepared talking points for the but he was apparently informed about the materials would help refresh his President in preparation for both calls the contents of the call afterward. His memory. We should go get that mate- to the Ukrainian President. The talk- reaction, once he was informed, would rial. ing points were about American policy, be helpful to understanding the extent Ambassador Sondland also testified as reflected by the votes of Congress, to which President Trump’s action de- that he exchanged a number of emails as well as the Trump administration viated from American policy and with top officials, like Mick Mulvaney, itself. They didn’t include any mention American security interest. about his efforts to pressure Ukraine to of the Bidens or the 2016 election inter- There is another set of documents announce the investigations President ference or investigations that Presi- that the Senate should get, and they Trump demanded. Here is his testi- dent Trump requested on the July 25 relate to the political investigations mony. call. that President Trump and his agents [Text of Videotape presentation:] Here is a clip of Lieutenant Colonel repeatedly asked Ukrainian officials to Ambassador SONDLAND. First, let me say Vindman explaining how the President announce. These documents were about precisely, because we did not think that we ignored the points about American pol- efforts to pressure Ukraine to an- were engaging in improper behavior, we icy reflecting the views of both the nounce investigations and the decision made every effort to ensure that the relevant to place a hold on military aid to decision makers at the National Security Congress and the Trump administra- Council and The State Department knew the tion. Ukraine. They would be very impor- important details of our efforts. The sugges- [Text of Videotape presentation:] tant for you to evaluate the Presi- tion that we were engaged in some irregular Mr. SCHIFF. Colonel Vindman, if I can dent’s conduct. or rogue diplomacy is absolutely false. I have turn your attention to the April 21 call that For example, Ambassador Bolton is a now identified certain State Department is the first call between President Trump firsthand witness to President Trump’s emails and messages that provide contem- and President Zelensky. Did you prepare abuse of power. He reported directly to poraneous support for my view. These emails talking points for the President’s use during the President. He supervised the entire show that the leadership of the State De- partment, the National Security Council, that call? staff of the National Security Council. Colonel VINDMAN. Yes, I did. and the White House were all informed about Mr. SCHIFF. Do those talking points in- Public reports indicate that John the Ukraine efforts from May 23, 2019, until clude rooting out corruption in Ukraine? Bolton is a voracious note-taker at the security aid was released on September Colonel VINDMAN. Yes. every meeting. 11, 2019.

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00103 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.022 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S390 CONGRESSIONAL RECORD — SENATE January 21, 2020 Ms. Manager LOFGREN. These agencies that the aid should be re- the Ukraine security assistance. But emails referenced in this testimony are leased. OMB wouldn’t release them in a Free- in the possession of the White House, Importantly, according to the Gov- dom of Information lawsuit, and they the State Department, and even the ernment Accountability Office, his ac- have refused to produce these docu- Department of Energy since officials tion violated the law. On January 16, ments at the direction of the President from all three entities communicated 2020, the GAO—an independent watch- in response to the House’s lawful sub- together. dog—issued a legal opinion finding that poena. Now, during his testimony, Ambas- President Trump violated the law when The Washington Post reported that a sador Sondland described it this way: he held up security assistance to ‘‘confidential White House review’’ of Everyone was in the loop. It was no se- Ukraine. The GAO said: President Trump’s decision to hold up cret. Faithful execution of the law does not per- ‘‘hundreds of documents that reveal ex- These emails are therefore important mit the President to substitute his own pol- tensive efforts to generate an after-the- to understanding the full scope of the icy priorities for those that Congress enacted fact justification for the . . . debate scheme. into law. OMB withheld funds for a policy over whether the delay was legal’’— A request for relevant evidence is not reason, which is not permitted under the Im- that is known as a coverup, actually. confined to Trump administration offi- poundment Control Act. The withholding The White House lawyers had, appar- cials. The Senate should also get White was not a programmatic delay. Therefore, we ently, uncovered ‘‘early August email House records relating to the Presi- conclude that OMB violated the ICA. exchanges between acting chief of staff dent’s private agents who acted on his The fact that the President’s action Mick Mulvaney and White House budg- behalf in Ukraine, including Victoria to freeze the aid, which he used to pres- et officials seeking to provide some ex- Toensing and Joe diGenova. Witness sure Ukraine to announce the political planation for withholding the funds the testimony and documents have made investigations he wanted, was against president had already ordered a hold’’ clear that Mr. Giuliani, a frequent vis- not only the official consensus of his on. itor to the White House who also re- own administration but also against The documents also reportedly in- ceived and made frequent calls to the the law, and it was to help himself. clude communications between White White House, was acting on behalf of That helps demonstrate these actions House officials and outside agencies. the President to press Ukrainian offi- were taken for President Trump’s per- Not only does Congress have a right to cials to announce investigations that sonal and political benefit. see them, but the public does, too, would personally and politically ben- Witness testimony and public report- under freedom of information laws. efit the President. ing made clear the White House has a As a matter of constitutional author- For example, the May 10, 2019, letter significant body of documents that re- ity, the Senate has the greatest inter- from Mr. Giuliani to President-elect late to these key aspects of the Presi- est in and the right to compel those Zelensky that is shown on this slide dent’s scheme. Some of these docu- documents. Indeed, as the news article states he was acting ‘‘as personal coun- ments outline the planning of the explains, White House lawyers are re- sel to President Trump with his knowl- President’s freeze. portedly worried about ‘‘unflattering edge and consent.’’ He requested a For example, the New York Times re- exchanges and facts that could at a minimum embarrass the president.’’ meeting with the President-elect, to be ported in June that Mr. Mulvaney Perhaps they should be worried about joined by Ms. Toensing, who is ‘‘very emailed his senior adviser, Mr. Blair: that, but the risk of embarrassment familiar with this matter.’’ The evi- Did we ever find out about the money cannot outweigh the constitutional in- dence indicates he was collaborating for Ukraine and whether we can hold it terests in this impeachment pro- with Ms. Toensing and Mr. diGenova in back? This shows that Mr. Mulvaney was in email contact with his aides ceeding. this effort. Any evidence of guilt, including fur- The Senate should get the White about the very issues under investiga- ther proof of the real reason the Presi- House records of the meeting and of tion as part of this impeachment. It tells us that the White House is in pos- dent ordered the funds withheld, or the calls involving Mr. Giuliani, Ms. after-the-fact attempts to paper over session of communications that go to Toensing, or Mr. diGenova. These knowingly unlawful conduct, must be the heart of the charges before you. records are important to help you un- provided to ensure a full and fair trial. The Senate should also get materials derstand the extent to which the White No privilege or national security ra- prepared for summary notes from the House was involved in Mr. Giuliani’s tionale can be used as a shield from late August meeting with President efforts to coerce Ukraine to announce disclosing misconduct. the investigation the President want- Trump, Secretary of Defense Mark There are key White House docu- ed. The records would also show how Esper, and Secretary of State Mike ments relating to multiple instances the President’s personal political agen- Pompeo when they try to convince the when White House officials reported da became more important than poli- President that ‘‘freeing up the money their concerns to White House lawyers cies to help America’s national secu- for Ukraine was the right thing to do.’’ about the President’s scheme to press rity interests. According to the New York Times, Am- Ukraine to do the President a domestic The President’s counsel may—con- bassador Bolton told the President this political favor. For example, Lieuten- sistent with his prior attempts to hide is in America’s interest. ant Colonel Vindman and Dr. Hill both evidence—assert that attorney/client The Senate should review that highly informed NSC lawyers about the July privilege would cover these documents, relevant document, which reflects real- 10 meeting in which Ambassador but the President’s personal attorney/ time assertions by President Trump’s Sondland revealed he had a deal with client privilege cannot shield evidence own senior aides that Ukrainian aid Mr. Mulvaney. of misconduct in office or that of his was in the national security interest of I am going to go directly to the clip aides or his lawyers’ participation in the United States and that there was by Dr. Hill because, at Bolton’s direc- corrupt schemes. We aren’t asking for no legitimate reason to hold up the aid. tion, Dr. Hill also reported that meet- documents reflecting legitimate legal There are documents that include ing to John Eisenberg, as she explained advice; we need documents about their after-the-fact justifications to try to in her testimony. actions to pressure Ukraine to an- overcome legal problems and the unan- (Text of Videotape presentation:) nounce an investigation into President imous objections to freezing the assist- Ms. HILL. I had a discussion with Ambas- Trump’s political opponent. ance to Ukraine, and we know these sador Bolton both after the meeting in his There is a set of White House docu- documents exist. office, a very brief one, and then one imme- ments that relate directly to the Presi- On January 3, 2020, OMB stated in a diately afterward, the subsequent meeting. dent’s unlawful decision to withhold letter to the New York Times that it Mr. GOLDMAN. So the subsequent meet- $391 million appropriated—bipartisan— had discovered 20 responsive documents ing—after both meetings when you spoke to to help Ukraine. Witnesses have testi- consisting of 40 pages reflecting emails him and relayed to him what Ambassador Sondland said, what did Ambassador Bolton fied that President Trump directly or- between White House official Robert say to you? dered a hold on the security assistance Blair and OMB official Michael Duffey Ms. HILL. Well, I just want to highlight, despite the unanimous opinion of these that relate directly to the freezing of first of all, that Ambassador Bolton wanted

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00104 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.024 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S391 me to hold back in the room immediately ment should be adopted, and it should weeks that they had overwhelming evi- after the meeting. Again, I was sitting on be adopted now. dence to support their case, the first the sofa with a colleague— Members of the Senate, for all of the thing that the House managers have Mr. GOLDMAN. Right. But just in that second meeting, what did he say? reasons I have walked through today, I done upon arriving, finally, at this Ms. HILL. Yes, but he was making a very urge you to support the amendment to Chamber, after waiting for 33 days, is strong point that he wanted to know exactly issue a subpoena for White House docu- to say: Well, actually, we need more what was being said. And when I came back ments—documents that are directly evidence. We are not ready to present and related it to him, he had some very spe- relevant to evaluating the President’s our case. We need to have subpoenas, cific instruction for me. And I’m presuming scheme. and we need to do more discovery be- that that’s— Mr. GOLDMAN. What was that specific in- The House did its job. In the face of cause we don’t have the evidence we struction? the President’s obstruction and cat- need to support our case. Ms. HILL. The specific instruction was egorical commitment to hide the evi- This is stunning. It is a stunning ad- that I had to go to the lawyers—to John dence, we still gathered direct evidence mission of the inadequate and broken Eisenberg, the senior counsel for the Na- of his conduct and determined that his process that the House Democrats ran tional Security Council, to basically say: conduct required impeachment. in this impeachment inquiry that You tell Eisenberg Ambassador Bolton told The President complains about due failed to compile a record to support me that I am not part of this—whatever drug deal that Mulvaney and Sondland are cook- process in the House investigation. But their charges. It is stunning that they ing up. he was not only permitted to partici- don’t have the evidence they need to Mr. GOLDMAN. What did you understand pate; he was actually required to par- present their case and that they don’t it to mean by the drug deal that Mulvaney ticipate. Yet he refused to do so. He re- really have a case. and Sondland were cooking up? fused to provide witnesses and docu- If a litigant showed up in any court Ms. HILL. I took it to mean investigations ments that would tell his side of the in this country on the day of trial and for a meeting. Mr. GOLDMAN. Did you go speak to the story. So now it is up to you. said to the judge, ‘‘Actually, Your lawyers? With the backing of a subpoena, au- Honor, we are not ready to go; we need Ms. HILL. I certainly did. thorized by the Chief Justice of the more discovery; we need to do some Mr. GOLDMAN. And you relayed every- United States, you can end President more subpoenas; we need to do some thing that you just told us and more? Trump’s obstruction. If the Senate more work,’’ they would be thrown out Ms. HILL. I relayed it, precisely, and then more of the details of how the meeting had fails to take this step, if it will not of court, and the lawyers would prob- unfolded, as well, which I gave a full descrip- even ask for this evidence, this trial ably be sanctioned. This is not the sort tion of this in my October 14 deposition. and your verdict will be questioned. of proceeding that this body should Ms. Manager LOFGREN. There was Congress and the American people condone. something wrong going on here, and deserve the full truth. There is no plau- We have just heard that this is so im- White House officials were told repeat- sible reason why anyone wouldn’t want portant. Let’s consider what is really edly: Go tell the lawyers about it—Dr. to hear all of the available evidence at issue in the resolution here and the Hill, Lieutenant Colonel Vindman, and about the President’s conduct. amendment. It is a matter of timing. It Mr. Morrison, who reported to Mr. It is up to this body to make sure is a matter of when this body will con- Eisenberg at least two conversations. that happens. It is up to you to decide sider whether there should be witnesses We need the notes of those documents whether the Senate will affirm its sole or subpoenas for documents. to find out what was said. Again, attor- power and constitutional duty to try Why is it that the House managers ney-client privilege cannot shield in- impeachments and whether and when are so afraid to have to present their formation about misconduct from the it will get the evidence that it needs to case? Remember, they have had weeks impeachment trial of the President of render a fair verdict. Don’t surrender of a process that they entirely con- the United States. to the President’s stonewalling. It will trolled. They had 17 witnesses who tes- It is interesting. This amendment is allow the President to be above the law tified first in secret and then in public. supported by 200 years of precedent. It and deprive the American people of They have compiled a record with is needed to prevent the President from truth in the process. thousands of pages of reports, and they continuing to hide the evidence, and A fair trial is essential in every way. are apparently afraid to just make a that is why the specific documents re- It is important for the President, who presentation based on the record that quested are so important for this case. hopes to be exonerated, not merely ac- they compiled and then have you de- It is faithful to the Constitution’s pro- quitted by a trial seen as unfair. It is cide whether there is any ‘‘there’’ vision that the Senate shall have the important for the Senate, whose vital there—whether there is anything worth sole power to try all impeachments. role is to continue to protect and de- trying to talk to more witnesses about. The final point I will make today fend the Constitution of the United Why is it that they can’t wait a few concerns urgency. The Senate should States, which has preserved our Amer- days to make their presentation on ev- act on this subpoena now, at the outset ican liberty for centuries. And, finally, erything they have been preparing for of the trial. In 14 of the Senate’s 15 full it is important for the American peo- weeks and then have that issue consid- impeachment trials, threshold evi- ple, who expect a quest for truth, fair- ered? It is because they don’t think dentiary matters, including the timing, ness, and justice. there is any ‘‘there’’ there, and they nature, and scope of witness testimony, History is watching, and the House want to ram this through now. They and the gathering of all relevant docu- managers urge that you support the want to ram this through now when it ments, were addressed at the very out- amendment. is something that they, themselves, set of the trial. There are practical I reserve the balance of my time. failed to do. considerations as to why the subpoenas The CHIEF JUSTICE. Thank you, I want to unpack a couple of aspects need to be issued now. Resolving counsel. of what they are asking this body to whether a subpoena should issue now Mr. Cipollone. do. Part of it relates to the broken would let us immediately engage with Mr. Counsel CIPOLLONE. Mr. Chief process in the House and how that the White House to resolve asserted le- Justice, Patrick Philbin will present process was inadequate and invalid and gitimate privilege issues, if any exist, our opposition. compiled an inaccurate record, and and ensure you get the documents as The CHIEF JUSTICE. Very well. part of it has to do with what accept- soon as possible so they can be pre- Mr. Philbin. ing their request to have this body do sented to the Senators in advance of Mr. Counsel PHILBIN. Thank you. their job for them would do to this in- witness testimony. Waiting to resolve Mr. Chief Justice, Majority Leader stitution going forward and how it these threshold matters until after the MCCONNELL, Democratic Leader SCHU- would forever alter the relationship be- parties have presented their case would MER, and Senators, it is remarkable tween the House and the Senate in im- undercut the process of a genuine cred- that after taking the action of the peachment proceedings. ible trial. breathtaking gravity of voting to im- First, as to the process in the House. Thus, common sense, tradition, and peach the duly elected President of the What the House managers are asking fairness all compel that the amend- United States and after saying for this body to do now is to really do

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00105 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.025 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S392 CONGRESSIONAL RECORD — SENATE January 21, 2020 their job for them because they didn’t overborne by competing congressional House can bring in an impeachment take the measures to pursue these doc- interests.’’ here that is not adequately supported, uments in the House proceedings. That was Attorney General Janet that has not been investigated, that There have been a number of state- Reno in the Clinton administration ex- has not got a record to support it, and ments made that they tried to get the plaining that senior advisers to the turn this body into the investigatory documents and no executive privilege President are immune from congres- body would permanently alter the rela- was asserted, and things like that. sional compulsion. That doctrine, that tionship between the House and the Let’s look at what actually hap- immunity, is rooted in the same prin- Senate in impeachment proceedings. It pened. ciples of executive privilege that has is not the role of the Senate to have to They issued a subpoena to the White been asserted by all Presidents since do the House’s job for them. It is not House, and the White House explained. the 1970s, and that was the basis on the role of the Senate to be doing an And we were told a few minutes ago which a number of these advisers investigation and to be doing discovery that the White House provided no re- whose pictures they put up were di- in a matter like the impeachment of a sponse, provided no rationale. That is rected not to testify. President of the United States. If the not true. In a letter of October 18, Did they try to challenge that in- House has not done the investigation White House Counsel Pat Cipollone ex- quiry? Did they go to court on that and cannot support its case, it is not plained in three pages of legal argu- one? Did they try to go through the the time, once it arrives here, to start ment why that subpoena was invalid. constitutionally mandated accom- doing all that work. That is something That subpoena was invalid because it modations process to see if there was a that is the House’s role. was issued without authorization. way to come up with some aspect of So this is something that is impor- We have heard a lot today about how testimony to be provided? No, none of tant for this institution, I believe, not the Constitution assigns the sole power that. They just wanted to forge ahead, to allow the House to turn it into a sit- of impeachment to the House. That is rush through the process, not have the uation where this body would have to right. That is what article I, section 2, evidence, and then use that as another be doing the House’s work for it. If says, that it assigns the sole power of charge in their charging sheet for the there is not evidence to support the impeachment to the House, not to any impeachment, calling it obstruction of case, if they haven’t done their inves- Member of the House. And no com- Congress. tigation, then they are not going to be mittee of the House can exercise that And what that is, as Professor Turley able to support their case. authority to issue subpoenas until it explained, is this idea that, when there Again, what is at issue here—and I has been delegated that authority by a is a conflict between the executive think it is important to recall—on the vote of the House. There was no vote branch and the House in seeking infor- issue of this amendment, is not wheth- from the House. Instead, Speaker mation and the President is asserting er the Senate, whether this body, will PELOSI held a press conference, and she constitutionally based privileges, that be considering whether there should be purported, by holding a press con- is part of the operation of separation of witnesses or not but when that should ference on September 24, to delegate powers. That is the President’s con- be considered. There is no reason not the authority of the House to Manager stitutional duty to defend the preroga- to take the approach that was done in SCHIFF and several other committees tives of the office for the future occu- the Clinton impeachment. One hundred and have them issue subpoenas. All of pants of that office. It is not something Senators agreed then that it made those subpoenas were invalid. That was that can be charged as an impeachable sense to hear from both sides before explained to the House, to Manager offense, as the House Democrats have making determination on that, to hear SCHIFF, and the other chairmen of the tried to say here. To do that is an from both sides to see what sort of case committees at the time in that October abuse of power. That is what Professor the House could present and the Presi- 18 letter. Turley explained. It is Congress’s—it is dent’s defense. Did the House take any steps to rem- the House Democrats’ abuse of power. That makes sense. In every trial sys- edy that? Did they try to dispute that? We just heard Manager LOFGREN tem there is a mechanism for deter- Did they go to court? Did they do any- refer to executive privilege as a dis- mining whether the parties have actu- thing to resolve that problem? No, be- traction. She was asserting that these ally presented a triable issue, whether cause, as we know, all that they want- issues of executive privilege are just a there is really some ‘‘there’’ there that ed to do was issue a subpoena and move distraction that shouldn’t hold things requires the further proceedings. This on. They just wanted to get through up. This is what the Supreme Court has body should take that commonsense the impeachment process as quickly as said about executive privilege in Nixon approach and hear what it is that the possible and get it done before Christ- v. United States; that the protections House managers have to say. mas. That was their goal. So those sub- for confidentiality and executive privi- Why are they afraid to present their poenas were unauthorized. lege are ‘‘fundamental to the oper- case? They had weeks in a process that Now, what about some of the other ations of government and inextricably they controlled to compile their things they brought up: the witnesses, rooted in the separation of powers record, and they should be able to the witnesses who were directed not to under the Constitution.’’ make that presentation now. testify. In part on this, we have heard Inextricably rooted in the separation The one point that I will close on is Manager SCHIFF say several times that of powers. That is why it is the Presi- we heard Manager SCHIFF say several the White House never asserted execu- dent’s duty to defend executive branch times that we have to have a fair proc- tive privilege. Well, let me be clear on confidentiality and interests, and that ess here. I was struck by it that at one that. That is a lawyer’s trick because is what the President was doing here. point he said, if you allow only one side it is technically true that the White Now, the process they pursued in the to present evidence, the outcome will House didn’t assert executive privilege House abandoned any effort beyond be predetermined. The outcome will be because there is a particular situation issuing the first subpoena that was in- predetermined. in which you do that and a particular valid to work out an accommodation That is exactly what happened in the way that you do that. with the White House and, instead, just House. Let’s recall that the process There is another doctrine of immu- tried to rush ahead to have the im- they had in the House was one-sided. nity of senior advisers to the President peachment done by Christmas. What They locked the President and his law- that is based on the same principles as does that lead to now? They are com- yers out. There was no due process for executive privilege, and that has been ing to this body after a process that the President. They started in secret asserted by Presidents of both political was half-baked, that didn’t compile hearings in the basement. The Presi- parties since the 1970s at least. records sufficient to support their dent couldn’t be present or, by his This is what one Attorney General charges, and asking this body to do counsel, he couldn’t present evidence. explained about that: ‘‘ . . . the immu- their job for them. He couldn’t cross-examine the wit- nity such advisers enjoy from testi- Now, as Leader MCCONNELL pointed nesses. Then there was a second round monial compulsion by a congressional out in some comments earlier today, to in public where, again, they locked the committee is absolute and may not be allow that, to accept the idea that the President out.

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00106 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.026 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S393 We have heard—and they just said Mr. Chief Justice, I would yield now Finally, with respect to those secret that the President had an opportunity to my colleague Mr. SCHIFF. hearings that counsel keeps referring to participate in the third round of Mr. Manager SCHIFF. Mr. Chief Jus- to, those secret depositions in the hearings that they held before the Ju- tice, Mr. Philbin says that the House is House were so secret that only 100 diciary Committee. After one hearing not ready to present its case. Of course, Members of Congress were able to be on December 4, Speaker PELOSI, on the that is not something you heard from there and participate—only 100. That is morning of December 5, went out and any of the managers. We are ready. how secret that Chamber was. announced the conclusion of the Judi- The House calls John Bolton. The Imagine that, in the grand jury pro- ciary Committee proceedings. She an- House calls John Bolton. The House ceedings in the Clinton investigation nounced that she was directing Chair- calls Mick Mulvaney. Let’s get this or in the Jaworski and the Nixon inves- man NADLER to draft Articles of Im- trial started, shall we? We are ready to tigation—imagine inviting 50 or 100 peachment. That was before the day present our case. We are ready to call Members of Congress to sit in on those. they had set for the President to even our witnesses. The question is, Will Imagine, as the President would like tell them what rights he wanted to you let us? That is the question before here, apparently, the President insist- have and to exercise in their pro- us. ing on having his lawyer in the grand ceedings. Mr. Philbin says: Well, if I showed up jury because it was a case being inves- It was all already predetermined. The in court and said I wasn’t ready, the tigated against him. outcome had been predetermined. The judge would throw me out of the court. We had no grand jury here. Why is Judiciary Committee had already de- Of course, we are not saying we aren’t that? Why did we have no grand jury cided it was not going to have any fact ready. You know what would happen if here? Why was there no special pros- hearings. There was no process for the Mr. Philbin went into a court and the ecutor here? Because the Justice De- President. He was never allowed to par- judge said: I have made a deal with the partment said they are not going to ticipate. defendant. I am not going to let the look into this. Bill Barr’s Justice De- So when Chairman SCHIFF says here prosecutor call any witnesses. I am not partment said there is nothing to see that, if you only allow one side to going to let the prosecutor present any here. If it were up to that Justice De- present evidence, that predetermines documents. partment, you wouldn’t know anything the outcome, that is what they did in You know who would get thrown out about this. That is why there was no the House because they had a predeter- of court? The judge. The judge would grand jury. That is why we, and the mined outcome there, because it was be taken out in handcuffs. House, had to do the investigative all one-sided. For him to lecture this So let’s step out of this body for a work ourselves, and, yes, just like in body now on what a fair process would moment and imagine what a real trial the Nixon case, just like in the Clinton be takes some gall. A fair process would look like. It would begin with case, we used depositions. Do you know what deposition rules would be, when you come to the day of the government receiving documents, we used, those terribly unfair deposi- trial, be ready to start the trial and being able to introduce documents, and tion rules we used? They were written present your case and not ask for more being able to call witnesses. This trial by the Republicans. We used the same discovery. should be no different. rules that the GOP House Members The President is ready to proceed. Mr. Philbin makes reference to the used. That is how terribly unfair they The House managers should be ready to Cipollone letter on October 18, which followed a Cipollone eight-page letter were. proceed. My gosh, they used our rules. How This amendment should be rejected. on October 8, saying: We are not going dare they? How dare they? Thank you. to do anything you ask. Why do we do depositions? Because Part law, part diatribe. Mostly dia- The CHIEF JUSTICE. The House we didn’t want one witness to hear managers have 8 minutes remaining. tribe. You should read it. It is a letter, what another witness was saying so Ms. Manager LOFGREN. Mr. Chief basically, that says what the President they could either tailor their stories or Justice, the House is certainly not ask- said on that TV screen, which is we are know they just had to admit so much ing the Senate to do the House’s job. going to fight all subpoenas. and no more. It is how every credible We are asking the Senate to do its job, The doctrine of absolute immunity investigation works. to hold the trial. Have you ever heard that counsel refers to has, yes, been in- Counsel can repeat all they like that of a trial that doesn’t have evidence, voked or at least attempted by Presi- the President didn’t have a chance to that doesn’t have witnesses? That is dents of both parties and rejected uni- participate, didn’t have a chance to what this amendment is all about. formly by the courts, including the have counsel present in the Judiciary Just a moment about the subpoenas. most recent decision involving Don Committee or to offer evidence. They The President—President Trump—re- McGahn, the President’s former White can say it as much as they like, but it fused to provide any information to the House Counsel, where the court said: does not make it any more true when House, ordered all of his people to That would make him a King. He is no they make the same false representa- stonewall us. Now, it has been sug- King, and this trial has determined tions time and again. It makes it that gested that we should spend 2 or 3 that he shall not become a King, ac- much more deliberate and onerous. years litigating that question. I was a countable to no one, answerable to no The President could have presented young law student—actually working one. evidence in the Judiciary Committee. on the Nixon impeachment—many What is more, this idea of absolute He chose not to. There is a reason for years ago, and I remember the day the immunity, this fever dream of Presi- that. There is a reason why the wit- Supreme Court issued its unanimous dents of both parties, it has no applica- nesses they have talked about aren’t decision that the President had to re- tion to documents. Again, this amend- material witnesses. They don’t go to lease the tapes. I think United States ment is on documents. There is no ab- the question of whether the President v. Nixon still governs the President. solute immunity from providing docu- withheld the aid for this corrupt pur- The House and the Senate should not ments. pose. They don’t go to any of that, be- be required to litigate United States v. As Representative LOFGREN illus- cause they have no witnesses to ab- Nixon back in the Supreme Court and trated, when this case has gone to the solve the President on the facts. down again for it to be good law. It is Supreme Court, in the Nixon case, the You should want to see these docu- good law. The President has not com- Court held that the interest and con- ments. You should want to see them. plied with those requirements, to the fidentiality in an impeachment pro- You should want to know what these detriment of the truth. ceeding must give way to the interests private emails and text messages have This isn’t about helping the House. of the truth and the Senate and the to say. If you are going to make a This isn’t about helping the Senate. American people. guess about the President’s guilt or in- This is about getting to the truth and You cannot invoke privilege to pro- nocence, if you are going to make a de- making sure that impartial justice is tect wrongdoing. You cannot invoke cision about whether he should be re- done and that the American people are privilege to protect evidence of a con- moved from office, you should want to satisfied that a fair trial has been held. stitutional crime like we have here. see what these documents say.

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00107 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.028 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S394 CONGRESSIONAL RECORD — SENATE January 21, 2020 If you don’t care, if you have made The Senator from New York [Mr. SCHUMER] tions with those individuals before or after up your mind—he is the President of proposes an amendment, No. 1285. the larger meeting; my party or, for whatever reason, I am (Purpose: To subpoena certain Department (iii) meetings at the White House on or not interested, and what is more, I of State documents and records) about July 10, 2019, involving Ukrainian offi- At the appropriate place in the resolving cials Andriy Yermak and Oleksander don’t really want the country to see Danylyuk and United States Government of- this—that is a totally different matter, clause, insert the following: SEC. lll. Notwithstanding any other ficials, including, but not limited to, then- but that is not what your oath re- provision of this resolution, pursuant to National Security Advisor John Bolton, Sec- quires. It is not what your oath re- rules V and VI of the Rules of Procedure and retary Perry, Ambassador Volker, and Am- quires. The oath requires you to do im- Practice in the Senate When Sitting on Im- bassador Sondland, to include at least a partial justice, which means to see the peachment Trials— meeting in Ambassador Bolton’s office and a evidence—to see the evidence. That is (1) the Chief Justice of the United States, subsequent meeting in the Ward Room; all we are asking. Just don’t blind through the Secretary of the Senate, shall (iv) a meeting at the White House on or issue a subpoena to the Secretary of State around August 30, 2019, involving President yourself to the evidence. Trump, Secretary of State Mike Pompeo, I yield back. commanding him to produce, for the time period from January 1, 2019, to the present, and Secretary of Defense Mark Esper; The CHIEF JUSTICE. The majority (v) a planned meeting, later cancelled, in all documents, communications, and other leader is recognized. Warsaw, Poland, on or around September 1, records within the possession, custody, or 2019 between President Trump and President MOTION TO TABLE control of the Department of State, referring Zelensky, and subsequently attended by Vice Mr. MCCONNELL. Mr. President, I or relating to— President Pence; and send a motion to the desk to table the (A) all meetings and calls between Presi- (vi) a meeting at the White House on or amendment, and I ask for the yeas and dent Trump and the President of Ukraine, around September 11, 2019, involving Presi- including documents, communications, and nays. dent Trump, Vice President Pence, and Mr. other records related to the scheduling of, The CHIEF JUSTICE. The question is Mulvaney concerning the lifting of the hold preparation for, and follow-up from the on agreeing to the motion to table. on security assistance for Ukraine; Is there a sufficient second? President’s April 21 and July 25, 2019 tele- (E) all communications, including but not There appears to be a sufficient sec- phone calls, as well as the President’s Sep- limited to WhatsApp or text messages on pri- ond. tember 25, 2019 meeting with the President of vate devices, between current or former The clerk will call the roll. Ukraine in New York; State Department officials or employees, in- The senior assistant legislative clerk (B) the actual or potential suspension, cluding but not limited to Secretary Michael withholding, delaying, freezing, or releasing R. Pompeo, Ambassador Volker, Ambassador called the roll. of United States foreign assistance, military The CHIEF JUSTICE. Are there any Sondland, Ambassador Taylor, and Deputy assistance, or security assistance of any kind Assistant Secretary Kent, and the following: other Senators in the Chamber wishing to Ukraine, including but not limited to the to vote or change his or her vote? President Zelensky, Andriy Yermak, or indi- Ukraine Security Assistance Initiative viduals or entities associated with or acting The result was announced—yeas 53, (USAI) and Foreign Military Financing in any capacity as a representative, agent, or nays 47, as follows: (FMF), including but not limited to all com- proxy for President Zelensky before and [Rollcall Vote No. 15] munications with the White House, Depart- after his election; YEAS—53 ment of Defense, and the Office of Manage- (F) all records specifically identified by ment and Budget, as well as the Ukrainian witnesses in the House of Representatives’ Alexander Fischer Perdue government’s knowledge prior to August 28, Barrasso Gardner Portman impeachment inquiry that memorialize key 2019, of any actual or potential suspension, Blackburn Graham Risch events or concerns, and any records reflect- Blunt Grassley Roberts withholding, delaying, freezing, or releasing ing an official response thereto, including Boozman Hawley Romney of United States foreign assistance to but not limited to— Braun Hoeven Rounds Ukraine, including all meetings, calls, or (i) an August 29, 2019 cable sent by Ambas- Burr Hyde-Smith Rubio other engagements with Ukrainian officials sador Taylor to Secretary Pompeo; Capito Inhofe Sasse regarding potential or actual suspensions, Cassidy Johnson (ii) an August 16, 2019 memorandum to file Scott (FL) holds, or delays in United States assistance Collins Kennedy written by Deputy Assistant Secretary Kent; Scott (SC) Cornyn Lankford to Ukraine; and Shelby Cotton Lee (C) all documents, communications, notes, (iii) a September 15, 2019 memorandum to Cramer Loeffler Sullivan and other records created or received by, Thune file written by Deputy Assistant Secretary Crapo McConnell Secretary Michael R. Pompeo, Counselor T. Kent; Cruz McSally Tillis Ulrich Brechbuhl, former Special Represent- (G) all meetings or calls, including but not Daines Moran Toomey ative for Ukraine Negotiations Ambassador Wicker limited tp all requests for or records of meet- Enzi Murkowski Kurt Volker, Deputy Assistant Secretary Ernst Paul Young ings or telephone calls, scheduling items, George Kent, then-United States Embassy in calendar entries, State Department visitor NAYS—47 Ukraine Charge d’Affaires William B. Tay- records, and email or text messages using Baldwin Hassan Rosen lor, and Ambassador to the European Union personal or work-related devices, between or Bennet Heinrich Sanders Gordon Sondland, and other State Depart- among— Blumenthal Hirono Schatz ment officials, relating to efforts to— Booker Jones (i) current or former State Department of- Schumer (i) solicit, request, demand, induce, per- ficials or employees, including but not lim- Brown Kaine Shaheen suade, or coerce Ukraine to conduct or an- Cantwell King Sinema ited to Secretary Michael R. Pompeo, Am- Cardin Klobuchar nounce investigations; bassador Volker, and Ambassador Sondland; Smith (ii) offer, schedule, cancel, or withhold a Carper Leahy Stabenow and Casey Manchin White House meeting for Ukraine’s presi- Tester (ii) Rudolph W. Giuliani, Victoria Coons Markey dent; or Udall Toensing, or Joseph diGenova; and Cortez Masto Menendez Van Hollen (iii) hold and then release military and Duckworth Merkley (H) the curtailment or recall of former Warner other security assistance to Ukraine; United States Ambassador to Ukraine Marie Durbin Murphy (D) any meetings or proposed meetings at Feinstein Murray Warren ‘‘Masha’’ Yovanovitch from the United Gillibrand Peters Whitehouse or involving the White House that relate to States Embassy in Kiev, including credible Harris Reed Wyden Ukraine, including but not limited to— threat reports against her and any protec- (i) President Zelensky’s inauguration on The motion to table is agreed to; the tive security measures taken in response; May 20, 2019, in Kiev, Ukraine, including but and amendment is tabled. not limited to President Trump’s decision The CHIEF JUSTICE. The Demo- (2) the Sergeant at Arms is authorized to not to attend, to ask Vice President Pence to utilize the services of the Deputy Sergeant cratic leader is recognized. lead the delegation, directing Vice President at Arms or any other employee of the Senate AMENDMENT NO. 1285 Pence not to attend, and the subsequent de- in serving the subpoena authorized to be Mr. SCHUMER. Mr. Chief Justice, I cision about the composition of the delega- issued by this section. send an amendment to the desk to sub- tion of the United States; The CHIEF JUSTICE. The majority poena certain documents and records (ii) a meeting at the White House on or leader is recognized. around May 23, 2019, involving, among oth- Mr. MCCONNELL. Mr. Chief Justice, from the State Department, and I ask ers, President Trump, then-Special Rep- that it be read. resentative for Ukraine Negotiations Ambas- I ask for a brief 10-minute recess before The CHIEF JUSTICE. The clerk will sador Kurt Volker, then-Energy Secretary the parties are recognized to debate the read the amendment. Rick Perry, and United States Ambassador Schumer amendment. At the end of the The senior assistant legislative clerk to the European Union Gordon Sondland, as debate time, I will again move to table read as follows: well as any private meetings or conversa- the amendment, as the timing of these

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00108 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.029 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S395 votes are specified in the underlying powerful evidence of the President’s Deputy Assistant Secretary of State resolution. high crimes and misdemeanors—17 wit- George Kent, who oversaw Ukraine pol- f nesses, 130 hours of testimony, com- icy matters in Washington for the bined with the President’s own admis- State Department, wrote at least four RECESS SUBJECT TO THE CALL OF sions on phone calls and in public com- memos to file to document concerning THE CHAIR ments, confirmed and corroborated by conduct he witnessed or heard. Mr. MCCONNELL. Mr. Chief Justice, hundreds of texts, emails, and docu- Ambassador Kurt Volker, the Special I ask unanimous consent that the Sen- ments. Representative for Ukraine Negotia- ate stand in recess subject to the call Much of that evidence came from pa- tions, provided evidence that he and of the Chair. triotic, nonpartisan, decorated officials other American officials commu- There being no objection, at 4:48 in the State Department. They are nicated with high-level Ukrainian offi- p.m., the Senate, sitting as a Court of brave men and women who honored cials—including President Zelensky Impeachment, recessed until 5:16 p.m.; their obligations under the law and himself—via text message and whereupon the Senate reassembled gave testimony required by congres- WhatsApp about the President’s im- when called to order by the CHIEF JUS- sional subpoena in the face of the proper demands and how Ukrainian of- TICE. President’s taunts and insults. These ficials would respond to them. The CHIEF JUSTICE. The amend- officials described the President’s cam- Based on the testimony we received ment is arguable by the parties for 2 paign to induce and pressure Ukraine and on evidence that has since hours equally divided. to announce political investigations; emerged, all of these documents and Mr. Manager SCHIFF, are you a pro- his use of $391 million of vital military others that we will describe bear di- ponent or an opponent? aid—taxpayer money appropriated on a rectly on the allegations set forth in Mr. Manager SCHIFF. Proponent, bipartisan basis by Congress—as lever- the first Article of Impeachment. They Mr. Chief Justice. would help complete our understanding The CHIEF JUSTICE. Thank you. age to force Ukraine to comply; and his And Mr. Cipollone? withholding of a meeting desperately of how the President’s scheme unfolded Mr. Counsel CIPOLLONE. Opponent. sought by the newly-elected President in real time. They would support the The CHIEF JUSTICE. Mr. SCHIFF, of Ukraine. conclusion that senior Ukrainian offi- you have an hour, and you will be able This testimony was particularly cials understood the corrupt nature of to reserve time for rebuttal. compelling because the State Depart- President Trump’s demand. They Mrs. Manager DEMINGS. Chief Jus- ment is at the very center of President would further expose the extent to tice Roberts, Senators, counsel for the Trump’s wrongdoing. We heard first- which Secretary Pompeo, Acting Chief White House, I am VAL DEMINGS from hand from diplomatic officials who saw of Staff Mick Mulvaney, and other sen- the State of Florida. up close and personal what was hap- ior Trump administration officials The House managers strongly sup- pening and who immediately—imme- were aware of the President’s plot and port the amendment to issue a sub- diately—sounded the alarms. helped carry it out. poena for documents to the State De- Ambassador William Taylor, who re- We are not talking about a burden- partment. turned to Ukraine in June of last year some number of documents; we are As we explained, the first Article of as Acting Ambassador, texted other talking about a specific, discrete set of Impeachment charges the President State Department officials: ‘‘I think materials held by the State Depart- with using the power of his office to so- it’s crazy to withhold security assist- ment—documents the State Depart- licit and pressure Ukraine to announce ance for help with a political cam- ment has already collected in response investigations that everyone in this paign.’’ to our subpoena but has never pro- Chamber knows to be bogus. The Presi- Ambassador to the European Union duced. We know these materials exist, dent didn’t even care if an investiga- Gordon Sondland, who was delegated we know they are relevant, and we tion was actually conducted, just that authority over Ukraine matters by know the President is desperately try- it was announced. Why? Because this none other than President Trump, tes- ing to conceal them. was for his own personal and political tified: ‘‘We knew these investigations As I will describe, the Senate should benefit. The first article further were important to the President’’ and subpoena the following: No. 1, charges that the President did so with ‘‘we followed the President’s orders.’’ WhatsApp and other text message com- corrupt motives and that his use of David Holmes, a senior official at the munications; 2, emails; 3, diplomatic power for personal gain harmed the na- U.S. Embassy in Kyiv, said: ‘‘[I]t was cables; and 4, notes. tional security of the United States. made clear that some action on a Given the significance and relevance As the second Article of Impeach- Burisma/Biden investigation was a pre- of these documents, the House re- ment charges, the President sought to condition for an Oval Office meeting.’’ quested that they be provided. When conceal evidence of this conduct. He During their testimony, many of these requests were denied—when our did so by ordering his entire adminis- these State Department officials de- requests were denied—the House issued tration—every office, every agency, scribed specific documents—including subpoenas commanding that the docu- every official—to defy every subpoena text messages, emails, former diplo- ments be turned over, but at the Presi- served in the House impeachment in- matic cables, and notes—that would dent’s direction, the Department of quiry. No President in history has ever corroborate their testimony and shed State unlawfully defied that subpoena. done anything like this. Many Presi- additional light on President Trump’s As I stand here now, the State De- dents have expressly acknowledged corrupt scheme. partment has all these documents in that they couldn’t do anything like For instance, Ambassador Taylor, its possession but refuses, based on the this. who raised concerns that military aid President’s order, to let them see the President Trump did not take these had been conditioned on the Presi- light of day. This is an affront to the extreme steps to hide evidence of his dent’s demand for political investiga- House, which has full power to see innocence or to protect the institution tions, described a ‘‘little notebook’’ in these documents. It is an affront to the of the Presidency. As a career law en- which he would ‘‘take notes on con- Senate, which has been denied a full forcement officer, I have never seen versations’’ he had with key officials. record on which to judge the Presi- anyone take such extreme steps to hide Ambassador Sondland referred by dent’s guilt or innocence. It is an af- evidence allegedly proving his inno- date and recipient to emails regarding front to the Constitution, which makes cence, and I do not find that here the President’s demand that Ukraine clear that nobody, not even the Presi- today. The President is engaged in this announce political investigations. As dent, is above the law. It is an affront coverup because he is guilty, and he we will see, those emails were sent to to the American people, who have a knows it. And he knows that the evi- some of President Trump’s top advis- right to know what the President and dence he is concealing will only further ers, including Acting White House his allies are hiding from them and demonstrate his culpability. Chief of Staff Mick Mulvaney, Sec- why it is being hidden. Notwithstanding this effort to stone- retary of State Michael Pompeo, and In prior impeachment trials, this wall our inquiry, the House amassed Secretary of Energy Rick Perry. body has issued subpoenas requiring

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00109 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.031 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S396 CONGRESSIONAL RECORD — SENATE January 21, 2020 the recipient to hand over relevant nicate with each other and foreign gov- things is Rudi and I ready to talk with documents. It must do so again here, ernment officials. him at any time.’’ and it must do so now at the beginning As Deputy Assistant Secretary Kent This is evidence that, immediately of the trial, not the end. explained, WhatsApp is the dominant following Ambassador Sondland’s ulti- Of course the need for a Senate sub- form of electronic communication in matum, Ukrainian officials recognized poena arises because, as I have noted, certain parts of the world. We know that they needed to appease Rudy the President ordered the State De- that the State Department possesses Giuliani by carrying out the investiga- partment to defy a subpoena from the records of WhatsApp and text messages tions. Of course, Mr. Giuliani had pub- House. At this point, I would like to from critical eyewitnesses to these pro- licly confirmed that he was not en- briefly describe our own efforts to get ceedings, including from Ambassadors gaged in ‘‘foreign policy’’ but was in- those materials. I will then address in Sondland and Taylor and Deputy As- stead advancing his client’s—the Presi- a more detailed fashion exactly what sistant Secretary Kent. dent’s—own personal interests. documents the State Department has We know that the Department is de- Further, in another text message ex- hidden from the American people and liberately concealing these records at change provided by Ambassador why the Senate should require it to the direction of the President, and we Volker, we see evidence that Ukraine turn them over. know that they could contain highly understood President Trump’s demands On September 9, exercising their arti- relevant testimony about the Presi- loud and clear. cle I oversight authority, the House in- dent’s plan to condition official Presi- On the morning of July 25, half an vestigating committee sent a docu- dential acts on the announcement of hour before the infamous call between ment request to the State Department. investigations for his own personal and President Trump and President The committee sought materials re- political gain. Zelensky, Ambassador Volker wrote to lated to the President’s effort to pres- We know this not only from testi- a senior Ukrainian official: sure Ukraine to announce investiga- mony but also because Ambassador Heard from White House—assuming Presi- tions into his political rival, as well as Volker was able to provide us with a dent Z convinces trump he will investigate/ his dangerous, unexplained withholding small but telling selection of his ‘‘get to the bottom of what happened’’ in of millions of dollars in vital military WhatsApp messages. Those records 2016, we will nail down date for visit to aid. confirm that a full review of these Washington. Good luck! See you tomorrow— After the State Department failed to texts and WhatsApp messages from rel- Kurt. produce any documents, the House evant officials would help to paint a Ambassador Sondland confirmed that Committee on Foreign Affairs issued a vivid, firsthand picture of statements, this text accurately summarized the subpoena to the State Department on decisions, concerns, and beliefs held by President’s directive to him earlier September 27. important players unfolding in real that morning. In a letter on October 1, Secretary time. After the phone call between Presi- Pompeo acknowledged receipt of the For example, thanks to Ambassador dent Trump and President Zelensky, subpoena. At that time, he stated that Volker’s messages, we know that Am- the Ukrainian official responded, he would respond to the committee’s bassador Sondland—a key player in the pointedly: ‘‘Phone call went well.’’ He subpoena for documents by the return President’s pressure campaign who tes- then discussed potential dates for a date, October 4, but his response never tified in the House about a quid pro White House meeting. came. quo arrangement—texted directly with Then, the very next day, Ambassador Instead, on October 8, President the Ukrainian President, President Volker wrote to Rudy Giuliani: ‘‘Ex- Trump’s lawyer—writing on the Presi- Volodymyr Zelensky. This image pro- actly the right messages as we dis- dent’s behalf—issued a direction con- duced by Ambassador Volker appears cussed.’’ firming that the administration would to be a screenshot of a text message These messages confirm Mr. stonewall the impeachment inquiry. that Ambassador Sondland exchanged Giuliani’s central role, the premedi- To date, the State Department has with President Zelensky about plans tated nature of President Trump’s so- not produced a single document—not a for a White House visit—the very same licitation of political investigations, single document—in response to the visit that President Zelensky badly and the pressure campaign on Ukraine congressional subpoena, but witnesses needed and that President Trump later waged by Mr. Giuliani and senior offi- who testified indicated that the State withheld as part of the quid pro quo de- cials at President Trump’s direction. Department had gathered all of the scribed by Ambassador Sondland in his Again, this is just some of what we records and was prepared to provide testimony. learned from Ambassador Volker’s them before the White House directed This body and the American people records. As you will see during this it to defy the subpoena. have a right to know what else Ambas- trial presentation, there were numer- Notwithstanding this unlawful ob- sador Sondland and President Zelensky ous WhatsApp messages in August struction, through the testimony of said in this and other relevant ex- while Ambassadors Volker and brave State Department employees, changes about the White House meet- Sondland and Mr. Giuliani were pres- the House was able to identify, with re- ing or about the military aid and the suring President Zelensky’s top aide to markable precision, several categories President’s demands, but we don’t issue a statement announcing the in- of documents relevant to the first Arti- know exactly what was conveyed and vestigation that President Trump cle of Impeachment that are sitting when. We don’t know it because Presi- wanted. Ambassador Taylor’s text that right now—right now—the documents dent Trump directed the State Depart- you saw earlier about withholding the are sitting right now at the State De- ment to conceal these vital records. aid further reveals how much more ma- partment. These are records that the State De- terial there likely is that relates to the I would like to walk you through partment would have otherwise turned Articles of Impeachment. four key categories of documents that over if not for the President’s direction There can be no doubt that a full pro- should be subpoenaed and which illus- and desire to cover up his wrongdoing. duction of relevant texts and trate the highly relevant documents To get a sense of why texts and WhatsApp messages from other offi- the State Department could produce WhatsApp messages are so vital, just cials involved in Ukraine and in touch immediately to this trial. consider yet another piece of evidence with Ukrainian officials—including The first category consists of we have gleaned from Ambassador Ambassador Sondland, Ambassador WhatsApp and other text messages Volker’s partial production. Taylor, and Deputy Assistant Sec- from State Department officials On July 10, after the White House retary Kent—would further illuminate caught up in these events, including meetings at which Ambassador the malfeasance addressed in our first Ambassadors Sondland and Taylor and Sondland pressured Ukrainian officials article. also Deputy Assistant Secretary to announce investigations of Presi- This leads to the second category of George Kent, all three of whom con- dent Trump’s political opponents, a documents that the State Department firmed in their testimony that they Ukraine official texted Ambassador is unlawfully withholding—emails in- regularly use WhatsApp to commu- Volker: ‘‘I feel that the key for many volving key State Department officials

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00110 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.033 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S397 concerning interactions with senior into the State Department’s secret associate of Rudy Giuliani who assisted Ukrainian officials and relating to records demonstrates that those him in his representation of President military aid, a White House meeting, records are full of information relevant Trump, that Giuliani likely spoke with and the President’s demand for an in- to this trial. Secretary Pompeo about Ukraine mat- vestigation into his rivals. For example, several of these newly ters even earlier than previously un- For example, on July 19, Ambassador released emails show multiple contacts derstood. Gordon Sondland spoke directly with between the State Department, includ- According to documents obtained President Zelensky about the upcoming Secretary Pompeo, and Mr. from Mr. Parnas, Mr. Giuliani wrote in ing July 25 call between President Giuliani throughout 2019. This is an early February of 2019 that he appar- Trump and President Zelensky. important fact. ently spoke with Secretary Pompeo Ambassador Sondland sent an email Mr. Giuliani served as the President’s about the removal of the U.S. Ambas- updating key officials, including Sec- point person and executed his corrupt sador in Ukraine, Marie Yovanovitch. retary Pompeo, Acting White House scheme. Mr. Giuliani repeatedly em- Mr. Giuliani viewed her as an impedi- Chief of Staff Mulvaney, and his senior phasized that his role was to advance ment to implementing the President’s adviser, Robert Blair. In this email, he the President’s personal agenda—the corrupt scheme and orchestrated a noted that he ‘‘prepared’’ President President’s political interests, not to long-running smear campaign against Zelensky, who was willing to make the promote the national security interests her. Here is what Mr. Parnas said about announcements of political investiga- of the United States. The fact that the this just last week. tions that President Trump desired. President’s private attorney was in (Text of Videotape presentation:) contact at key junctures with the Sec- Secretary Perry and Mick Mulvaney Ms. MADDOW. Do you believe that part of then responded to Sondland, acknowl- retary of State, whose senior officials the motivation to get rid of Ambassador edging they received the email and rec- were directed by the President to sup- Yovanovitch, to get her out of post, was she ommending to move forward with the port Mr. Giuliani’s efforts in Ukraine, was in the way of this effort to get the gov- phone call that became the July 25 call is relevant, disturbing, and telling. ernment of Ukraine to announce investiga- For example, we know that on March between the Presidents of the United tions of Joe Biden? 26, as Mr. Giuliani was pursuing the Mr. PARNAS. That was the only motiva- States and Ukraine. President’s private agenda in Ukraine, tion. We know all of this not because the and just 1 week after The Hill pub- Ms. MADDOW. That was the only motiva- State Department provided us with lished an article featuring Mr. tion? critical documents but, instead, be- Giuliani’s Ukraine conspiracy theories, Mr. PARNAS. There was no other motivation. cause Ambassador Sondland provided Secretary Pompeo and Mr. Giuliani us a reproduction of the email. spoke directly on the phone. Mrs. Manager DEMINGS. These are In his further testimony, Ambassador That same week, President Trump’s just some of the email communications Sondland quite correctly explained former personal secretary was asked by that we know to exist, but there are that this email demonstrated ‘‘every- Mr. Giuliani’s assistant for a direct undoubtedly more, including, for exam- one was in the loop.’’ connection to Secretary Pompeo. ple, Ambassador Yovanovitch’s request (Text of Videotape presentation:) Based on these records, it is also for the State Department to issue a Everyone was in the loop. It was no secret. clear that Secretary Pompeo was al- statement of support of her around the Everyone was informed via email on July ready actively engaged with Mr. time that Mr. Giuliani was speaking di- 19th, days before the Presidential call. As I Giuliani in early spring of 2019. It also rectly with Secretary Pompeo, but communicated to the team, I told President appears that these efforts were backed that statement never came. Zelensky in advance that assurances to run The State Department has gathered a fully transparent investigation and turn by the White House, given the involve- over every stone were necessary in his call ment of President Trump’s personal these records, and they are ready to be with President Trump. secretary. turned over pursuant to a subpoena This body and the American people from the Senate. It would not be a Mrs. Manager DEMINGS. Even need to see these emails and other files time-consuming or lengthy process to viewed alone, this reproduced email is at the State Department, flushing out obtain them, and there are clearly— damning. It was sent shortly after Am- these exchanges and the details sur- clearly—important and relevant docu- bassador Sondland personally conveyed rounding Mr. Giuliani’s communica- ments to the President’s scheme. If we the President’s demand for investigations with Secretary Pompeo. More- want the full and complete truth, then tions to Ukrainians at the White over, based on call records lawfully ob- we need to see those emails. House, leading several officials to tained by the House from this period, The Senate should also seek a third sound alarms. It was said just a few we know that from March 24 to March item that the State Department has re- days before the July 25 call, where 30, Mr. Giuliani called the White House fused to provide, and that is Ambas- President Trump asked for a ‘‘favor,’’ several times and also connected with sador Taylor’s extraordinary first-per- and, by itself, this email shows who an unidentified number numerous son diplomatic cable to Secretary was involved in President Trump’s plan times. Pompeo, dated August 29 and sent at to pressure the Ukrainian President for These records show that on March 27, the recommendation of the National his own political gain. Mr. Giuliani placed a series of calls— Security Advisor, John Bolton, in But it is obvious that the full email series of calls—to the State Depart- which Ambassador Taylor strenuously chain and other related emails to this ment switchboard, Secretary Pompeo’s objected to the withholding of military key time period would also be highly assistant, and the White House switch- aid from Ukraine, as Ambassador Tay- relevant. We don’t have those emails board in quick succession, all within lor recounted in his deposition. because the State Department is hiding less than 30 minutes. (Text of Videotape presentation:) them, at the direction of the President. Obtaining emails and other docu- The Senate should issue the proposed ments regarding the State Department Ambassador TAYLOR. Near the end of Am- subpoena to ensure a complete record bassador Bolton’s visit, I asked to meet him leadership’s interaction with President privately, during which I expressed to him of these and other relevant emails. Trump’s private lawyer in this period, my serious concern about the withholding of Any doubt that the State Depart- when Mr. Giuliani was actively orches- military assistance to Ukraine while the ment is concealing critical evidence trating the pressure campaign in Ukrainians were defending their country from this body was resolved when the Ukraine related to the sham investiga- from Russian aggression. Ambassador Bolton State Department was recently ordered tion into Vice President Biden and the recommended that I send a first-person cable to release documents, including emails, 2016 election, would further clarify the to Secretary Pompeo directly relaying my pursuant to a lawsuit under the Free- President’s involvement and direction concerns. dom of Information Act. These docu- I wrote and transmitted such a cable on at this key juncture in the formation August 29th, describing the folly I saw in ments are heavily redacted and are of a plot to solicit foreign interference withholding military aid to Ukraine at a limited to a very narrow time period, in our election. time when hostilities were still active in the but, nevertheless, despite the heavy We also know, based on recently ob- east and when Russia was watching closely redactions, this highly limited glimpse tained documents from Lev Parnas, an to gauge the level of American support for

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00111 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.035 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S398 CONGRESSIONAL RECORD — SENATE January 21, 2020 the Ukrainian Government. The Russians, as his testimony. Ambassador Taylor who had opened their authorities under I said at my deposition, would love to see the took extensive notes of nearly every Zelensky, had opened investigations of humiliation of President Zelensky at the conversation he had—some in a little former President Poroshenko. He didn’t hands of the Americans. I told the Secretary think that was appropriate. that I could not and would not defend such a notebook. David Holmes, the Embassy And then Andriy Yermak said: What? You policy. official in Ukraine, was a consistent mean the type of investigations you’re push- Although I received no specific response, I notetaker of important meetings with ing for us to do on Biden and Clinton? heard that soon thereafter the Secretary car- Ukrainian officials. The conversation makes clear the ried the cable with him to a meeting at the (Text of Videotape presentation:) Ukrainian officials understood the cor- White House focused on security assistance Mr. GOLDMAN. Did you take notes of this rupt nature of President Trump’s re- for Ukraine. conversation on September 1st with Ambas- Mrs. Manager DEMINGS. While we quest and therefore doubted American sador Sondland? credibility on anti-corruption meas- know from Ambassador Taylor and Ambassador TAYLOR. I did. Deputy Assistant Secretary Kent that Mr. GOLDMAN. And did you take notes re- ures. Records of these conversations—and the cable was received, we do not know lated to most of the conversations, if not all other notes and memorandum by sen- whether or how the State Department of them, that you recited in your opening ior American officials in Ukraine— responded, nor do we know if the State statement? Ambassador TAYLOR. All of them, Mr. would flesh out and help complete the Department possesses any other inter- Goldman. record for the first Article of Impeach- nal records relating to this cable. ... This cable is vital for three reasons. ment. They would tell the whole truth Mr. GOLDMAN. And you are aware, I pre- to the American people and to this First, it demonstrates the harm that sume, that the State Department has not President Trump did to our national provided those notes to the committee. Is body. You should require the State De- security when he used foreign policy as that right? partment to provide them. an instrument of his own personal, po- Ambassador TAYLOR. I am aware. To summarize, the Senate should litical gain. Second, on the same day Mr. GOLDMAN. So we don’t have the ben- issue the subpoena proposed and the the cable was sent, President efit of reviewing them to ask you these ques- amendment requiring the State De- tions. partment to turn over relevant text Zelensky’s senior aide told Ambassador Ambassador TAYLOR. Correct. I under- Taylor that he was ‘‘very concerned’’ messages and WhatsApp messages, stand that they may be coming, sooner or emails, diplomatic cables, and notes. about the hold on military assistance. later. He added that the Ukrainians were Mr. GOLDMAN. Well, we would welcome These documents bear directly on the ‘‘just desperate’’ for it to be released. that. trial of this body—the trial that this In other words, President Trump’s ef- Mrs. Manager DEMINGS. The State body is required by the Constitution to fort to use military aid to apply addi- Department never produced those hold. They are immediately relevant to tional pressure on Ukraine was work- notes. the first Article of Impeachment. Their ing. As another example, Deputy Assist- existence has been attested to by cred- Finally, based on reporting by the ant Secretary Kent testified about a ible witnesses in the House, and the New York Times, we now know that key document that he drafted on Au- only reason we don’t already have within days of Ambassador Taylor gust 16, describing his concerns that them is that the President has ordered sending this cable, President Trump the Trump administration was at- his administration, including Sec- discussed Ukrainian security assist- tempting to pressure Ukraine into retary Pompeo, to hide them. The President’s lawyers may suggest ance with Secretary Pompeo, Defense opening politically motivated inves- that the House should have sought Secretary Esper, and National Security tigations. these materials in court or awaited fur- Advisor Bolton. The investigation un- (Text of Videotape presentation:) covered testimony that Secretary [Ms. SPEIER.] I’d like to start with ther lawsuits under the Freedom of In- Pompeo brought Ambassador Taylor’s you, Mr. Kent. In your testimony, you formation Act, a.k.a. FOIA lawsuits. cable to the White House; perhaps it said that you had—‘‘In mid-August, it Any such suggestion is meritless. To start, the Constitution has never was during this meeting. There, per- became clear to me that Giuliani’s ef- been understood to require such law- haps prodded by Ambassador Taylor’s forts to gin up politically motivated suits, which has never occurred—never cable, all three of them pleaded—plead- investigations were now infecting U.S. occurred—in any previous impeached—with the President to resume the engagement with Ukraine, leveraging crucial military aid. Yet the President ment. President Zelensky’s desire for a White Moreover, the President has repeat- refused. House meeting.’’ Mr. Kent, did you ac- This body has a right to see Ambas- edly and strenuously argued that the tually write a memo documenting your sador Taylor’s cable, as well as the House is not even allowed to file a suit concerns that there was an effort under other State Department records ad- to enforce its subpoenas. way to pressure Ukraine to open an in- dressing the official response to it. Al- In the Freedom of Information Act vestigation to benefit President though it may have been classified at cases, the administration has only Trump? the time, the State Department could grudgingly and slowly produced an ex- no longer claim that the topic of secu- Mr. KENT. Yes, ma’am. I wrote a memo to tremely small set of materials but has the file on August 16th. rity assistance remains classified today insisted on applying heavy and dubious Ms. SPEIER. But we don’t have access to redactions. in light of the President’s decision to that memo, do we? declassify his two telephone calls with Mr. KENT. I submitted it to the State De- FOIA lawsuits filed by third parties President Zelensky and Mr. Mulvaney’s partment, subject to the September 27th sub- cannot serve as a credible alternative public statements about security as- poena. to congressional oversight. In fact, it is sistance. Ms. SPEIER. And we have not received one still alarming that the administration The fourth category of documents piece of paper from the State Department has produced more documents pursuant that the Senate should subpoena are relative to this investigation. to Freedom of Information Act law- contemporaneous, first-person ac- Mrs. Manager DEMINGS. Deputy As- suits by private citizens and entities counts from State Department officials sistant Secretary Kent also memorial- than congressional subpoenas. who were caught up in President ized a September 15 conversation in Finally, as we all know, litigation Trump’s corrupt scheme. These docu- which Ambassador Taylor described a would take an extremely long time— ments, which were described in detail Ukrainian official accusing America of likely years, not weeks or months— by Deputy Assistant Secretary Kent, hypocrisy for advising President while the misconduct of this President Ambassador Taylor, and political offi- Zelensky against investigating a prior requires immediate attention. The mis- cer David Holmes, would help complete Ukrainian president. Mr. Kent de- conduct of this President requires im- the record and clarify how the Presi- scribed that conversation during his mediate attention. dent’s scheme unfolded in realtime and testimony. He said: If this body is truly committed to a how the Ukrainians reacted. But the more awkward part of the con- fair trial, it cannot let the President Mr. Kent wrote notes or memos to versation came after Special Representative play a game of ‘‘keep away’’ and dic- file at least four times, according to Volker made the point that the Ukrainians, tate what evidence the Senators can

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00112 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.036 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S399 and cannot see bearing on his guilt or Charles Kupperman before the judge courts—and by the way, lawyer law- innocence. This body cannot permit could rule, and they asked that the suits? Lawyer lawsuits? We are talking him to hide all the evidence while dis- case be mooted. Now they come here, about the impeachment of a President ingenuously insisting on lawsuits that and they ask you to issue a subpoena of the United States, duly elected, and he doesn’t actually think we can file— for John Bolton. It is not right. the Members and the managers are ones that he knows will not be resolved I yield the remainder of my time to complaining about lawyer lawsuits? until after the election he is trying to Mr. Sekulow. The Constitution allows lawyer law- cheat to win. Instead, to honor your Mr. Counsel SEKULOW. Mr. Chief suits. It is disrespecting the Constitu- oaths to do impartial justice, we urge Justice, Members of the Senate, the tion of the United States to even say each Senator to support a subpoena to managers said facts are a stubborn that in this Chamber, ‘‘lawyer law- the State Department. And that sub- thing. Let me give you some facts. It is suits.’’ poena should be issued now, at the be- from the transcripts. Here is the law. Communications ginning of the trial, rather than at the Ambassador Sondland actually testi- made by Presidential advisers in the end so these documents can be re- fied unequivocally that the President course of preparing advice for the viewed and their importance weighed did not tie aid to investigations. In- President come under the Presidential by the parties, by the Senate, and by stead, he acknowledged that any leak communications privilege even when the American people. That is how he had suggested was based entirely on these communications are not made di- things work in every courtroom in the his own speculation, unconnected to rectly to the President—even when Nation, and it is how they should work any conversation with the President. they are not made directly to the here, especially because the stakes, as Here is the question: President—adviser to adviser. Given you all know, are so high. What about the aid? Ambassador Volker the need to provide sufficient elbow The truth is there. Facts are stub- says that the aid was not tied. room for advisers to obtain informa- born things. The President is trying to Answer. I didn’t say that they were conclu- tion from all knowledgeable sources, hide it. This body should not surrender sively tied either. I said I was presuming it. the privilege must apply both to com- Question. OK. And so the President never to his obstruction by refusing to de- told you they were tied? munications which these advisers solic- mand a full record. That is why the Answer. That is correct. ited and received from others, as well House managers support this amend- Question. So your testimony and Ambas- as those they authorized themselves. ment. sador Volker’s testimony is consistent, and The privilege must also extend to Mr. Chief Justice, the House man- the President did not tie investigations, aid communications authored or received agers reserve the balance of our time. to investigations? in response to solicitation by members The CHIEF JUSTICE. Mr. Cipollone. Answer. That is correct. of a Presidential adviser’s staff since in Mr. Counsel CIPOLLONE. Thank Ambassador Sondland also testified many instances advisers must rely on you, Mr. Chief Justice. that he asked President Trump di- their staffs to investigate an issue and In the interest of time, I will not re- rectly about these issues, and the formulate advice given to the Presi- peat all of the arguments we have President explicitly told him that he dent. made already with respect to these mo- did not want anything from Ukraine. Lawsuits, the Constitution—it is a tions. I would say one thing before I He said: dangerous moment for America when turn it over to my cocounsel. Mr. I want nothing. I want nothing. I want no an impeachment of a President of the SCHIFF came here and said he is not quid pro quo. Tell Zelensky to do the right United States is being rushed through asking you to do something he thing. because of lawyer lawsuits. The Con- wouldn’t do for himself, and the House Similar comments were made to Sen- stitution allows it, if necessary. The manager said: We were not asking you ator JOHNSON. Constitution demands it, if necessary. to do our jobs for us. Those are the facts—stubborn, but Thank you, Mr. Chief Justice. Mr. SCHIFF came up here and said: ‘‘I those are the facts. The CHIEF JUSTICE. Mrs. DEMINGS, call Ambassador Bolton.’’ Remember No one is above the law. Here is the you have 13 minutes for rebuttal, or Paul Harvey? It is time for the rest of law. As every Member of Congress Mr. SCHIFF. the story. He didn’t call him in the knows and is undoubtedly aware, sepa- Mr. Manager SCHIFF. Thank you, House. He didn’t subpoena Ambassador rate from even state sacred privileges Mr. Chief Justice. Bolton in the House. is the Presidential communication ex- Let me respond to some of my col- I have a letter here from Ambassador ecutive privilege to communications in league’s points, if I can. Bolton’s lawyer. He is the same lawyer performance of a President’s respon- First, counsel said: Well, the House that Charlie Kupperman hired. It is sibilities. The Presidential communica- would like to call John Bolton, but the dated November 8. He said: I write as tion privilege has constitutional ori- House did not seek his testimony dur- counsel to Dr. Charles Kupperman and gins. Courts have recognized a great ing its investigation. to Ambassador John Bolton in response public interest in preserving the con- Well, first of all, we did. We invited to, one, the letter of November 5 from fidentiality of conversations that take John Bolton to testify. Do you know Chairman SCHIFF, Chairman ENGEL, place in the President’s performance of what he told us? He said: and Acting Chair MALONEY, the House his official duties because such con- I am not coming. And if you subpoena me, chairs, withdrawing the subpoena to fidentiality is needed to protect the ef- I will sue you. Dr. Kupperman—I mentioned that ear- fectiveness of the Executive decision- That was his answer: ‘‘I will sue lier—and to recent published reports making process. That is In re Sealed you.’’ announcing that the House chairs do Case, which was decided in the District Mr. Bolton is represented by the not intend to issue subpoenas to Am- of Columbia Court of Appeals. same lawyer who represents Dr. bassador Bolton. The Supreme Court found such a Kupperman, who actually did sue us He goes on to say: ‘‘We are dismayed privilege necessary to guarantee the when he was subpoenaed. So we knew that committees have chosen not to candor of Presidential advisers and to that John Bolton would make good on join in seeking resolution from the Ju- provide a President and those who as- that threat. dicial Branch of this momentous Con- sist him with freedom to explore alter- Mr. Sekulow said something about stitutional question.’’ He ends the let- natives in the process of ultimately lawyer lawsuits. I have to confess, I ter by saying: ‘‘If the House chooses shaping policies and making decisions wasn’t completely following the argu- not to pursue through subpoena the and to do so in a way many would be ment, but he said something about law- testimony of Dr. Kupperman and Am- unwilling to express except in private. yer lawsuits and that we are against bassador Bolton, let the record be For these reasons, Presidential con- lawyer lawsuits. I don’t know what clear: that is the House’s decision.’’ versations are presumptively privi- that means, but I can tell you this: The They made that decision. They never leged. Trump Justice Department is in court subpoenaed Ambassador Bolton. They There is something else about this in that case and in other cases arguing didn’t try to call him in the House. privilege. Communications made by that Congress cannot go to court to en- They withdrew the subpoena for Presidential advisers—again quoting force its subpoenas. So when they say

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They are in court by Mr. Cipollone, and they were along except the quid pro quo, and here is saying that you can’t have lawyer law- these lines: Ambassador Volker said what it is. The quid pro quo is he needs suits. That argument cannot be made the President never told him that the to go to the mike, and he should want in both directions. aid was being conditioned or that the to do it. That is their alibi? What is more, in the McGhan issue, meeting was being conditioned on They didn’t also mention, of course— which tested this same bogus theory of Ukraine doing the sham investigation. and you will hear about this during the absolute immunity—once again, that So I guess that is case closed—unless trial, if we have a real trial. Ambas- lawsuit involving the President’s law- the President told everyone, called sador Sondland also said: We are often yer, Don McGahn, the one who was told them into the office and said: Hey, I asked was there a quid pro quo, and the to fire the special counsel and then to am going to tell you now; and then: I answer is, yes, there was a quid pro lie about it, that lawsuit to get his tes- am going to tell you now. If he didn’t quo. There was an absolute quid pro timony—Judge Jackson ruled on that tell everyone, I guess it is case closed. quo. very recently when they made the Well, you know who the President What is more, when it came to the same bogus claim, saying that he is ab- did tell, among others? He told Mick military aid, it was as simple as two solutely immune from showing up. Mulvaney. Mick Mulvaney went out on plus two. Well, I will tell you some- The judge said: national television and said, yes, they thing. We are not the only people who That is nonsense. There is no support for discussed it, this investigation, this can add up two plus two. There are mil- that—not in the Constitution, not in the Russian narrative that it wasn’t lions of people watching this who can case. That is made out of whole cloth. Ukraine that intervened in 2016; it was add up two plus two also. When the But the judge said something more Russia. I am sorry. It wasn’t Russia; it President tells his Chief of Staff: We that was very interesting. What we was Ukraine. Yes, that bogus 2016 the- are holding up the aid because of this, urged John Bolton’s lawyer was, you ory; yes, they discussed it; yes, it was as the Chief of Staff admitted; when don’t need to file a lawsuit. Dr. part of the reason why they withheld the President gives no plausible or Kupperman, you don’t need to file a the money. other explanation for holding up aid lawsuit. There is one already filed in- When a reporter said: Well, you are that you all and we all supported and volving Don McGahn that is about to kind of describing a quid pro quo, his voted on in a very bipartisan way, has be decided. So unless your real purpose answer was: Yes, get used to it—or get no explanation for it; when in that call here is delay, unless your real purpose over it. We do it all the time. he never brings up corruption except here is to avoid testimony and you just Now, they haven’t said they want to the corruption he wants to bring about, wish to give the impression of a will- hear from Mick Mulvaney. I wonder it doesn’t take a genius, it doesn’t take ingness to come forward, you just want why. The President did talk to Mick Albert Einstein to add up two plus two. to have the court’s blessing—if that is Mulvaney about it. Wouldn’t you like It equals four. In this case, it equals really true, agree to be bound by the to hear what Mick Mulvaney has to guilt. McGahn decision. say? If you really want to get to the Now, you are going to have 16 hours Well, of course, they were not willing bottom of this, if they are really chal- to ask questions. You are going to have because they didn’t want to testify. lenging the fact that the President 16 hours. That is a long time to ask Now, for whatever reason, John Bolton conditioned $400 million in military aid questions. Wouldn’t you like to be able is now willing to testify. I don’t know to an ally at war, if Mick Mulvaney has to ask about the documents in that 16 why that is. Maybe it is because he has already said publicly that he talked to hours? Would you like to be able to a book coming out. Maybe it is because the President about it, and this is part say: Counsel for the President, what it would be very hard to explain why he of the reason why, don’t you think we did Mick Mulvaney mean when he was unwilling to share important infor- should hear from him? Wouldn’t you emailed so-and-so and said such and mation with the Senate; that he think impartial justice requires you to such? What is your explanation for couldn’t show up for a House deposi- hear from him? that because that seems to be pretty tion or interview because he would Now, counsel also referred to Ambas- damning evidence of exactly what the need court permission to do it, but he sador Sondland and Sondland saying: House is saying. What is your expla- could put it in the book. I don’t know. Well, the President told me there was nation of that? Mr. Sekulow, what is I can’t speak to his motivation. I can no quid pro quo. Now, of course, at the your explanation? tell you he is willing to come now, if time the President said to Sondland no Wouldn’t you like to be able to ask you are willing to hear him. quid pro quo, he became aware of the about the documents or ask the House: Of course, they weren’t willing to be whistleblower complaint, presumably Mr. SCHIFF, what about this text mes- bound by that court decision in by Mr. Cipollone. So the President sage? Doesn’t that suggest such—what McGahn, but the court said something knew that this was going to come to the President is arguing? Wouldn’t you very interesting, because one of the ar- light. On the advice, apparently, of Mr. like to be able to ask me that question, guments they happened to make—one Cipollone, or maybe others, the Direc- or one of my colleagues? I think you of the arguments that John Bolton’s tor of National Intelligence, for the would. I think you should. lawyer had been making as to why first time in history, withheld a whis- But the backward way this resolu- they needed their own separate litiga- tleblower complaint from Congress, its tion is drafted, you get 16 hours to ask tion was, well, John Bolton and Dr. intended recipient. Nonetheless, the questions about documents you have Kupperman, they are national security White House was aware of that com- never seen. You know what is more? If people, and Don McGahn is just a plaint. We launched our own investiga- you do decide at that point, after the White House Counsel. No offense to the tions. trial is essentially over, that you do White House Counsel, but apparently it Yes, they got caught. In the midst of want to see the documents after all and had nothing to do with the national se- being caught, what does he say? It is the documents are produced, you don’t curity so they couldn’t be bound by called a false exculpatory. For those get another 16 hours. You don’t get 16 what the court in the McGahn case people at home, that is a fancy word of minutes. You don’t get 16 seconds to said. Well, the judge in the McGahn saying it is a false, phony alibi. No ask about those documents. Does that case said this applies to national secu- quid pro quo. He wasn’t even asked the make any sense to you? Does that rity stuff too. question was there a quid pro quo. He make any sense at all? So we do have the court decision. just blurted it out. That is the defense? I will tell you something I would like What is more, we have the court deci- The President denies it? What is more to know that may be in the documents. sion in the Harriet Miers case, in the interesting, he didn’t tell you about You probably heard before about the

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00114 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.039 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S401 three amigos. My colleague has men- The CHIEF JUSTICE. The question is the Office of Management and Budget, refer- tioned two of the three amigos: Amigo on agreeing to the motion to table. ring or relating to— Volker and Amigo Sondland. These are Mr. MCCONNELL. I ask for the yeas (A) the actual or potential suspension, and nays. withholding, delaying, freezing, or releasing two of the three people whom the of United States foreign assistance, military President put in charge of Ukraine pol- The CHIEF JUSTICE. Is there a suffi- assistance, or security assistance of any kind icy. The third amigo is Secretary Rick cient second? to Ukraine, including but not limited to the Perry, former Secretary of Energy. We There appears to be a sufficient sec- Ukraine Security Assistance Initiative (re- know from Amigo Sondland’s testi- ond. ferred to in this section as ‘‘USAI’’) and For- mony that he was certainly in the loop, The clerk will call the roll. eign Military Financing (referred to in this knew exactly all about this scheme, The legislative clerk called the roll. section as ‘‘FMF’’), including but not limited and we knew from Ambassador The CHIEF JUSTICE. Are there any to— (i) communications among, between, or re- Volker’s testimony and his text mes- Senators in the Chamber wishing to ferring to Director Michael John ‘‘Mick’’ sages and his WhatsApps that that vote or change their vote? Mulvaney, Assistant to the President Robert amigo was in the loop. The result was announced—yeas 53, Blair, Acting Director Russell Vought, Asso- What about the third amigo? nays 47, as follows: ciate Director Michael Duffey, or any other Wouldn’t you like to know if the third [Rollcall Vote No. 16] Office of Management and Budget employee; (ii) communications related to requests by amigo was in the loop? Now, as my col- YEAS—53 President Trump for information about leagues will explain when we get to the Alexander Fischer Perdue Department of Energy records, well, Ukraine security or military assistance and Barrasso Gardner Portman responses to those requests; surprisingly, we didn’t get those either. Blackburn Graham Risch (iii) communications related to concerns Blunt Grassley Any communication between the De- Roberts raised by any Office of Management and Boozman Hawley Romney partment of Energy and the Depart- Budget employee related to the legality of Braun Hoeven Rounds ment of State is covered by this Burr Hyde-Smith Rubio any hold on foreign assistance, military as- amendment. Wouldn’t you like to Capito Inhofe Sasse sistance, or security assistance to Ukraine; Cassidy Johnson Scott (FL) (iv) communications sent to the Depart- know? Don’t you think the American Collins Kennedy Scott (SC) ment of State regarding a hold or block on people have a right to know what the Cornyn Lankford Shelby congressional notifications regarding the re- third amigo knew about this scheme? I Cotton Lee Sullivan lease of FMF funds to Ukraine; would like to know. I think you should Cramer Loeffler Crapo McConnell Thune (v) communications between— be able to ask questions about it in Cruz McSally Tillis (I) officials at the Department of Defense, your 16 hours. Daines Moran Toomey including but not limited to Undersecretary At the end of the day, I guess I will Enzi Murkowski Wicker of Defense Elaine McCusker; and finish with something Mr. Sekulow Ernst Paul Young (II) Associate Director Michael Duffey, said. He said this was a dangerous mo- NAYS—47 Deputy Associate Director Mark Sandy, or ment because we are trying to rush any other Office of Management and Budget Baldwin Hassan Rosen employee; Bennet Heinrich through this somehow. It is a dan- Sanders (vi) all draft and final versions of the Au- Blumenthal Hirono Schatz gerous moment, but we are not trying gust 7, 2019, memorandum prepared by the Booker Jones Schumer to rush through this trial. We are actu- Brown Kaine Shaheen National Security Division, International ally trying to have a real trial here. It Cantwell King Sinema Affairs Division, and Office of General Coun- is the President who is trying to rush Cardin Klobuchar Smith sel of the Office of Management and Budget Carper Leahy Stabenow about the release of foreign assistance, secu- through this. Casey Manchin Tester rity assistance, or security assistance to I have to tell you that whatever you Coons Markey Udall Ukraine; decide here—maybe this is a waste of Cortez Masto Menendez Van Hollen (vii) the Ukrainian government’s knowl- breath and maybe it is already decided, Duckworth Merkley Durbin Murphy Warner edge prior to August 28, 2019, of any actual or but whatever you decide here—I don’t Feinstein Murray Warren potential suspension, withholding, delaying, know who the next President is going Gillibrand Peters Whitehouse freezing, or releasing of United States for- to be; maybe it will be someone in this Harris Reed Wyden eign assistance, military assistance, or secu- Chamber, but I guarantee you this: The motion to table is agreed to; the rity assistance to Ukraine, including all Whoever that next President is, wheth- amendment is tabled. meetings, calls, or other engagements with er they did something right or they did Ukrainian officials regarding potential or ac- The CHIEF JUSTICE. The Demo- tual suspensions, holds, or delays in United something wrong, there is going to cratic leader is recognized. States assistance to Ukraine; come a time where you, in this body, AMENDMENT NO. 1286 (B) communications, opinions, advice, are going to subpoena that President Mr. SCHUMER. Mr. Chief Justice, I counsel, approvals, or concurrences provided and that administration. You are going send an amendment to the desk to sub- by any employee in the Office of Manage- to want to get to the bottom of serious ment and Budget regarding the actual or po- poena certain Office of Management tential suspension, withholding, delaying, allegations. Are you prepared to say and Budget documents, and I ask that that that President can simply say: I freezing, or releasing of security assistance it be read. to Ukraine including legality under the Im- am going to fight all the subpoenas. The CHIEF JUSTICE. The clerk will poundment Control Act; Are you prepared to say and accept read the amendment. (C) Associate Director Michael Duffey tak- that President saying: I have absolute The legislative clerk read as follows: ing over duties related to apportionments of immunity. You want me to come tes- USAI or FMF from Deputy Associate Direc- The Senator from New York [Mr. SCHUMER] tor Mark Sandy or any other Office of Man- tify? Senator, do you want me to come proposes an amendment numbered 1286. testify? No, no. I have absolute immu- agement and Budget employee; (Purpose: To subpoena certain Office of Man- (D) all meetings related to the security as- nity. You can subpoena me all you agement and Budget documents and like. I will see you in court. And when sistance to Ukraine including but not lim- records) ited to interagency meetings on July 18, 2019, you get to court, I am going to tell At the appropriate place in the resolving July 23, 2019, July 26, 2019, and July 31, 2019, you, you can’t see me in court. clause, insert the following: including any directions provided to staff Are you prepared for that? That is SEC. lll. Notwithstanding any other participating in those meetings and any what the future looks like. Don’t think provision of this resolution, pursuant to readouts from those meetings; this is the last President, if you allow rules V and VI of the Rules of Procedure and (E) the decision announced on or about this to happen, who is going to allow Practice in the Senate When Sitting on Im- September 11, 2019, to release appropriated this to take place. peachment Trials— foreign assistance, military assistance, or se- Mr. Chief Justice, I yield back. (1) the Chief Justice of the United States, curity assistance to Ukraine, including but The CHIEF JUSTICE. The majority through the Secretary of the Senate, shall not limited to any notes, memoranda, docu- leader is recognized. issue a subpoena to the Acting Director of mentation or correspondence related to the the Office of Management and Budget com- decision; MOTION TO TABLE manding him to produce, for the time period (F) all draft and final versions of talking Mr. MCCONNELL. Mr. Chief Justice, from January 1, 2019, to the present, all doc- points related to the withholding or release I send a motion to the desk to table the uments, communications, and other records of foreign assistance, military assistance, or amendment. within the possession, custody, or control of security assistance to Ukraine, including

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00115 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.041 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S402 CONGRESSIONAL RECORD — SENATE January 21, 2020 communications with the Department of De- they need it, it is personal to me. To be any documents to the House in re- fense related to concerns about the accuracy clear here, we are talking of $391 mil- sponse to multiple subpoenas and re- of the talking points; and lion of taxpayer money intended to quests. Based on what is known from (G) all meetings and calls between Presi- protect our national security by help- the testimony and the few documents dent Trump and the President of Ukraine, including documents, communications, and ing our strategic partner, Ukraine, that have been obtained through public other records related to the scheduling of, fight against Vladimir Putin’s Russia, reporting and lawsuits, it is clear that preparation for, and follow-up from the an adversary of the United States. the President is trying to hide this evi- President’s April 21 and July 25, 2019, tele- The President could not carry out dence because he is afraid of what it phone calls, as well as the President’s Sep- this scheme alone. He needed a lot of would show. The documents offer stark tember 25, 2019, meeting with the President people to help him. That is why we examples of the chaos and confusion of Ukraine in New York; and know as much about it as we do today. that the President’s scheme set off (2) the Sergeant at Arms is authorized to But there is much more to know. That across our government and made clear utilize the services of the Deputy Sergeant at Arms or any other employee of the Senate is what trials are for, to get the full the importance of the documents that in serving the subpoena authorized to be picture. are still being concealed by the Presi- issued by this section. We know there is more because Presi- dent. The CHIEF JUSTICE. The majority dent Trump needed the Office of Man- We know that OMB has documents leader is recognized. agement and Budget to figure out how that reveal that as early as June, the PROGRAM to stop what should have been a rou- President was considering holding Mr. MCCONNELL. Mr. Chief Justice, tine release of funds mandated by Con- military aid for Ukraine. The President first a scheduling note: As the parties gress—a release of funds that was al- began questioning military aid to are ready to debate this amendment, I ready under way. Ukraine after Congress appropriated suggest we go ahead, get through the The people in this Chamber don’t and authorized the money—$250 million debate, and vote before we take a 30- need me to tell you that because 87 of in DOD funds and $140 million in State minute recess for dinner. you in this room voted for those vital Department funds. This funding had I remind everyone that I will be mov- funds to support our partner Ukraine. wide bipartisan support because, as ing to table the amendment. It is also Witnesses before the House testified many witnesses testified, providing important to remember that both the extensively about OMB’s involvement military aid to Ukraine to defend itself evidence and witnesses are addressed in in carrying out the hold. It was OMB against Russian aggression also bene- the underlying resolution. that relayed the President’s instruc- fits our own national security. Impor- The CHIEF JUSTICE. The amend- tions and implemented them. It was tantly, the President’s questions came ment is arguable by the parties for 2 OMB that scrambled to justify the weeks after the Department of Defense hours, equally divided. freeze. already certified that Ukraine had un- Mr. Manager SCHIFF, are you a pro- OMB has key documents that Presi- dertaken the anti-corruption reforms ponent or opponent of this motion? dent Trump has refused to turn over to and other measures mandated by Con- Mr. Manager SCHIFF. Proponent, Congress. It is time to subpoena those gress as a condition for receiving that Mr. Chief Justice. documents. These documents would aid. There is a process for making sure The CHIEF JUSTICE. Mr. Cipollone, provide insight into critical aspects of that the funds make it to the right are you a proponent or opponent? the military aid hold. They would show place and to the right people—a process Mr. Counsel CIPOLLONE. Mr. Chief the decision-making process and moti- that has been followed every year that Justice, we are an opponent. vations behind President Trump’s we have been providing that security The CHIEF JUSTICE. Mr. SCHIFF, freeze. They would reveal the concerns assistance to Ukraine, including the your side will proceed first, and you expressed by career OMB officials, in- first 2 years under the Trump adminis- will be able to reserve time for rebut- cluding lawyers, that the hold was vio- tration. tal. lating the law. They would expose the Nonetheless, the President’s ques- Mr. Manager CROW. Mr. Chief Jus- lengths to which OMB went to justify tions came days after DOD issued a tice, before I begin, the House man- the President’s hold. They would reveal press release on June 18, announcing agers will reserve the balance of our concerns about the impact of the freeze they would provide its $250 million por- time to respond to the counsel for the on Ukraine and U.S. national security. tion of the taxpayer-funded military President. They would show that senior officials aid to Ukraine. According to public re- Mr. Chief Justice, Senators, counsel repeatedly attempted to convince porting, the day after DOD’s press re- for the President, and the American President Trump to release the hold. lease, a White House official named people, I am JASON CROW from the In short, they would show exactly Robert Blair called OMB’s Acting Di- great State of Colorado. how the President carried out the rector, Russell Vought, to talk about The House managers strongly sup- scheme to use our national defense the military aid to Ukraine. According port this amendment to subpoena key funds to benefit his personal political to public reports, Mr. Blair told documents from the Office of Manage- campaign. Vought: ‘‘We need to hold it up.’’ ment and Budget, or OMB. These docu- We are not speculating about the ex- OMB has refused to produce any doc- ments go directly to one of President istence of these documents. We are not uments related to this conversation. Trump’s abuses of power: his decision guessing what the documents might The Senate can get them by passing to withhold vital military aid from a show. During the course of the inves- the amendment and issuing a sub- strategic partner that is at war to ben- tigation in the House, witnesses who poena. efit his own personal reelection cam- testified before the committees identi- But there is more. The same day paign. Why should that matter? Why fied multiple documents directly rel- Blair told Vought to hold up the aid, should anybody care? Why should I evant to the impeachment inquiry that Michael Duffey, a political appointee care? OMB continues to hold to this day. at OMB who reports to Vought, Before I was a Member of Congress, I We know these documents exist, and emailed Deputy Under Secretary of De- was an American soldier serving in we know that the only reason we do fense Elaine McCusker and told her Iraq and Afghanistan. Although some not have them is because the President that the President had questions about years have passed since that time, directed OMB not to produce them be- the aid. Duffey copied Mark Sandy, a there is still some memories that are cause he knows what they would show. career official at OMB, who told us seared in my brain. One of those memo- To demonstrate the significance of about the email in his testimony before ries was scavenging scrap metal on the the OMB documents and the value they the House. streets of Baghdad in the summer of would provide in this trial, I would like Like all others, that email was not 2003, which we had to bolt onto the side to walk you through some of what we produced by the Trump administration of our trucks because we had no armor know exists for which the Trump ad- in the House impeachment investiga- to protect against roadside bombs. ministration has refused to turn over. tion. We know this email exists, how- When we talk about troops not get- As we have discussed, the Trump ad- ever, because in response to a Freedom ting the equipment they need, when ministration has refused to turn over of Information Act lawsuit, the Trump

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00116 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.032 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S403 administration was forced to release a curity assistance to Ukraine but could not That email is on the screen in front redacted email consistent with Sandy’s say why. Toward the end of an otherwise of you. We have a redacted copy of this description. normal meeting, a voice on the call—the per- email because it was recently released son was off-screen—said that she was from But OMB provided none of those doc- OMB and her boss had instructed her not to through the Freedom of Information uments to the House. With this pro- approve any additional spending on security Act. It was not released by the Trump posed amendment, the Senate has an assistance for Ukraine until further notice. administration in response to the opportunity to obtain and review the I and others sat in astonishment. The House’s subpoena. full record that can further dem- Ukrainians were fighting the Russians and In this email, Duffey told DOD offi- onstrate how and why the President counted on not only the training and weap- cials that, based on the guidance it re- ons but also the assurance of U.S. support. ceived, they should ‘‘hold off on any was holding the aid. These documents All that the OMB staff person said was that would also shed light on the Presi- the directive had come from the President, additional DOD obligations of these dent’s order to implement the hold. to the Chief of Staff, to OMB. In an instant, funds.’’ He added that the request was On July 3, the State Department told I realized that one of the key pillars of our ‘‘sensitive’’ and that they should keep various officials that OMB blocked it strong support for Ukraine was threatened. this information ‘‘closely held,’’ mean- from dispensing $141 million in aid. Mr. Manager CROW. It is hard to being, don’t tell anybody about it. OMB had directed the State Depart- lieve OMB would not have any docu- Why did Duffey consider the informa- ment not to send a notification to Con- ments following this bombshell an- tion sensitive? Why didn’t he want gress about spending the money, and nouncement. It surely does. It was the anyone to learn about it? Answers to without that notification, the aid was agency that delivered the shocking those questions may be found in OMB effectively blocked. Why did OMB news to the rest of the U.S. Govern- emails—emails that we could all see if block the congressional notification? ment that the President was with- you issue a subpoena. Who told them to do it? What was the holding the vital military aid from our But there is more. Remember, the ad- reason? The Senate would get those an- partner, and we would see these docu- ministration needed to create a way to swers if it issued this subpoena. ments if the Senate issued a subpoena. stop funding that was already under- But there is more. On July 12, Blair— The July 18 meeting was just the way. The train had already left the sta- the White House official who had called first in a series of meetings where OMB tion and something like this had never Vought on June 19 and said ‘‘We need held the line and enforced the Presi- been done before. Later in the evening to hold it up’’—sent an email to Duffey dent’s hold on the aid. But there was a of July 25, OMB found a way, even at OMB. Blair said: ‘‘The President is second meeting on July 23, where we though DOD had already notified Con- directing a hold on military support understood agencies raised concerns gress that the funds would be released. funding for Ukraine.’’ about the legality of OMB’s hold on the Here is how this scheme worked. We haven’t seen this email. The only aid and then a third meeting, at a more OMB sent DOD a funding document reason we know about it is from the senior level, on July 26. Witnesses tes- that included a carefully worded foot- testimony of Mark Sandy, the career tified that at that meeting, OMB strug- note directing DOD to hold off on OMB official who followed the law and gled to offer an explanation for the spending the funds ‘‘to allow for an President’s hold on the aid. Then there complied with his subpoena. As you interagency process to determine the was a fourth meeting on July 31, where can see from the transcript excerpt in best use.’’ Remember that language, the legal concerns about the hold were front of you, Sandy testified that the ‘‘to allow for an interagency process to raised. At each of these meetings, there July 12 email did not mention concerns determine the best use.’’ was confusion about the scope and the Let me explain that. The footnote about any other country or any other reasons for the hold. Nobody seemed to aid packages, just Ukraine. So of the stated that this ‘‘brief pause’’ would know what was going on. But that was not prevent DOD from spending the dozens of countries we provide aid and exactly the point. money by the end of the fiscal year, support for, the President was only All of the agencies—except OMB, concerned about one of them—Ukraine. which was simply conveying the Presi- which was coming up on September 30. Why? Well, we know why. But OMB has dent’s order—supported the military OMB had to do this because it knew still refused to provide a copy of this aid and argued for lifting the hold. that not spending the money was ille- July 12 email and has refused to pro- OMB did not produce a single docu- gal, and they knew that DOD would be vide any documents surrounding it, all ment providing information about his worried about that. And they were because the President told OMB to con- participation, preparation, or followup right; DOD was worried about it. Mr. tinue to hide the truth from Congress from any of these meetings. Sandy testified that in his 12 years of and the American people. Did these OMB officials come pre- experience at OMB, he could not recall What was he afraid of? A subpoena pared with talking points for these anything like this ever happening be- issued by the Senate would show us. meetings? Did OMB officials take notes fore. The drafting of this unusual fund- OMB also has documents about a key during any of these meetings? Did they ing document and the issuance of the series of meetings triggered by the exchange emails about what was going document must have generated a sig- President’s order to hold military aid. on? Did OMB discuss what reasons they nificant amount of email traffic, In the second half of July, the National could give everyone else for the hold? memos, and other documentation at Security Council convened a series of By issuing this subpoena, the Senate OMB—memos, email traffic, and docu- interagency meetings about the Presi- can find out the answers to all of those mentation that we would all see if the dent’s hold on military aid. OMB docu- questions and others like them. The Senate issued a subpoena. ments would show what happened dur- American people deserve answers. What was the result from this series ing those meetings. For example, on OMB documents would also reveal of events on July 25? Where was Mr. July 18, the National Security Council key facts about what happened on July Duffey’s guidance to implement the staff convened a routine interagency 25. On July 25, President Trump con- hold coming from? Why was the re- meeting to discuss Ukraine policy. ducted his phone call with President quest ‘‘sensitive’’? What was the con- During the meeting, it was the OMB Zelensky, during which he demanded nection between OMB’s direction to representative who announced that ‘‘a favor.’’ This favor was for Ukraine DOD and the call President Trump had President Trump placed a hold on all to conduct an investigation to benefit with President Zelensky just 90 min- military aid to Ukraine. the President’s reelection campaign. utes before? Did agency officials com- Ambassador Bill Taylor, our most That call was at 9 a.m. Just 90 minutes municate about the questions coming senior diplomat to Ukraine, partici- after President Trump hung up the from Ukrainian officials? pated in that meeting, and he described phone, Duffey, the political appointee The American people deserve an- his reaction at his own hearing. at OMB who is in charge of national se- swers. A subpoena would provide those (Text of Videotape presentation:) curity programs, emailed DOD to ‘‘for- answers. Mr. TAYLOR. In a regular NSC secure malize’’ the hold on the military aid, OMB documents also would reveal in- video conference call on July 18, I heard a just 90 minutes after President formation about the decision to have a staff person from the Office of Management Trump’s call—a call in which the Presi- political appointee take over Ukraine and Budget say that there was a hold on se- dent had asked for ‘‘a favor.’’ funding responsibility. The tensions

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The OMB documents would shed in foreign aid to El Salvador, Hon- think of no other explanation of a po- light on all of these questions, and the duras, and Guatemala because those litical appointee’s taking on this re- American people deserve answers. countries were not fairly sharing the sponsibility. Sandy was given no rea- I remember what it feels like to not burden of preventing mass migration son other than Mr. Duffey wanted to be have the equipment you need when you to the United States. ‘‘more involved in daily operations.’’ need it. Real people’s lives are at It is not the only administration. As During his deposition, Sandy con- stake. That is why this matters. We I said, President Obama withheld hun- firmed that he was removed from the need this information so we can ensure dreds of millions of dollars of aid to funding approval process after he had that this never happens again. Eventu- Egypt. raised concerns to Duffey about wheth- ally, this will all come out. We will To be clear—and I want to be clear— er the hold was legal under the Im- have answers to these questions. The Ambassador Yovanovitch herself testi- poundment Control Act. Needless to question now is whether we will have fied that our policy actually got say, OMB has refused to turn over any them in time and who here will be on stronger under President Trump, large- documents or communications involv- the right side of history. ly because, unlike the Obama adminis- ing that decision to replace Mr. Sandy. I reserve the balance of our time for tration, ‘‘this administration made the Why did Duffey—a political ap- an opportunity to respond to the Presi- decision to provide lethal weapons to pointee with no relevant experience in dent’s argument. Ukraine to help Ukraine fend off Rus- this area—take over responsibility for The CHIEF JUSTICE. Thank you. sian aggression.’’ She testified in a dep- Ukraine’s funding approval? Was the Mr. Sekulow. osition before your various committees White House involved in that decision? Mr. Counsel SEKULOW. Thank you, that it actually had felt, ‘‘in the 3 Was Sandy removed because he had ex- Mr. Chief Justice and Members of the years that I was there, partly because pressed concerns about the legality of Senate. of my efforts but also the interagency the hold? Manager CROW, you should be happy team and President Trump’s decision By August 7, people in our govern- to know that the aid that was provided to provide lethal weapons to Ukraine, ment were worried, and when people in to Ukraine over the course of the that our policy actually got stronger.’’ the government get worried, some- present administration included lethal Deputy Assistant Secretary Kent, times what they do is they draft weapons. Those were not provided by whose name has come up a couple of memos, because when they are con- the previous administration. The sug- times, agrees that Javelins are incred- cerned about getting caught up in gestion that Ukraine failed to get any ibly effective weapons at stopping ad- something that doesn’t seem right, equipment is false. The security assist- vance and that the Russians are scared they don’t want to be a part of it. ance was not for funding Ukraine over of them. So, on that day, Mark Sandy and the summer of 2019. There was no lack Ambassador Volker explained that other colleagues at the OMB drafted of equipment due to the temporary President Trump approved each of the and sent a memo about Ukraine mili- pause. It was for future funding. decisions made along the way, and as a tary aid to Acting Director Vought. Ukraine’s Deputy Minister of De- result, America’s policy toward According to Sandy, the memo advo- fense, who oversaw the U.S. aid ship- Ukraine strengthened. cated for the release of the funds. It ment, said: ‘‘The hold went and came So when we want to talk about facts, said that the military aid was con- so quickly they did not notice any go to your own discovery and your own sistent with American national secu- change.’’ witnesses that you called. rity interests, that it would help to op- Under Secretary of State David Hale This all supposedly started because pose Russian aggression, and that it explained: ‘‘The pause to aid was for fu- of a whistleblower. Where is that whis- was backed by strong bipartisan sup- ture assistance, not to keep the army tleblower? port. But President Trump did not lift going now.’’ The CHIEF JUSTICE. The House the hold. So the made-up narrative that secu- managers have 35 minutes remaining. Over the next several weeks, the rity assistance was conditioned on Mr. Manager CROW. Mr. Chief Jus- OMB continued to issue funding docu- Ukraine’s taking some action on inves- tice, in war, time matters; minutes and ments that kept kicking the can down tigations is further disproved by the hours can seem like years. So the idea the road, supposedly to allow for more straightforward fact that the aid was that, well, it made it there eventually of this ‘‘interagency process’’ while in- delivered on September 11, 2019, with- just doesn’t work. And, yes, the aid was serting those footnotes throughout the out Ukraine’s taking any action on any provided. It was provided by Congress— apportionment documents, stating that investigation. this Senate and the House of Rep- the delay wouldn’t affect the funding. It is interesting to note that the resentatives—with the President’s sig- But here is the really shocking part: Obama administration withheld $585 nature. The Congress is the one that There was no interagency process. million of promised aid to Egypt in sends the aid, and millions of dollars of They made it up. It had ended months 2013, but the administration’s public this aid would have been lost because before. They made it up because no- message was that the money was not of the delay had Congress not actually body could say the real reason for the officially on hold as, technically, it passed another law that extended that hold. In total, the OMB issued nine of was not due until September 30—the deadline to allow the funds to be spent. these documents between July 25 and end of the fiscal year—so that then Let me repeat that. The delay had September 10. they didn’t have to disclose the halt to jeopardized the expenditure of the Did the White House respond to the anyone. money to such an extent that Congress OMB’s concerns and recommendation It sounds like this may be a practice had to pass another law to extend the to release the aid? Did the White House of a number of administrations. In fact, deadline so that the money and the instruct the OMB to continue creating this President has been concerned equipment got to the people on the a paper trail in an effort to justify the about how aid is being put forward, so frontlines. hold? Who knew what and when the there have been pauses on foreign aid Need I also reiterate, as to the sup- OMB documents would shed light on in a variety of contexts. posed interagency process—the con- the OMB’s actions as the President’s In September of 2019, the administra- cerns that the President and his coun- scheme unraveled? Did the White tion announced that it was withholding sel continue to raise about corruption House direct the OMB to continue over $100 million in aid to Afghanistan and making sure that the process went issuing the hold? What was OMB told over concerns about government cor- right—there was no interagency proc- about the President’s reasons for re- ruption. In August of 2019, President ess. The whole thing was made up. It

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00118 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.046 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S405 was a phantom. There was a delay, and new President of Ukraine—this new, and he is sitting with David Holmes, delays matter. untested, former comedian President of who is a career diplomat—U.S. dip- Mr. Chief Justice, I reserve the bal- Ukraine who was at war with Russia lomat—in the Ukraine Embassy. Gor- ance of my time for Mr. SCHIFF. was going to be going into a negotia- don Sondland takes out his phone, and The CHIEF JUSTICE. Mr. SCHIFF. tion with Vladimir Putin with an eye he calls the White House. Gordon Mr. Manager SCHIFF. Thank you, to ending that conflict, and whether he Sondland calling for the White House. Mr. Chief Justice. went into that negotiation from a posi- Gordon Sondland holding for the Presi- There are just a few additional points tion of strength or a position of weak- dent. And it takes a while to be con- I would like to make on this amend- ness would depend on whether we had nected, but he is connected to the ment and on my colleagues’ argu- his back. President. That is pretty impressive, ments. And so when the Ukrainians learned right? This isn’t some guy with no re- First of all, Mr. Sekulow makes the and the Russians learned that the lationship to the President. The Presi- point that the aid ultimately got re- President of the United States did not dent may say: Gordon Sondland, I bare- leased. They ultimately got the money, have his back, was withholding this ly know him, or something to that ef- right? Yes, they got the money after aid, what message do you think that fect, but this is a guy who picked up the President got caught, after the sent to Vladimir Putin? What message his cell phone, and he can call the President was forced to relieve the hold do you think it sent to Vladimir Putin President of the United States from a on the aid. After he got caught, yes, when Donald Trump wouldn’t let restaurant in Kyiv, and he does. but even then, they had held on to the Volodymyr Zelensky, our ally, in the And the President’s voice is so loud aid so long that it took a subsequent door at the White House but would let that David Holmes, this diplomat, can act of Congress to make sure it could the Russian Foreign Minister? What hear it. And what does the President all go out the door. message does that send? say? Does he say: How is that reform So, what, is the President supposed So it is not just the aid, and it is not coming? How is the attack on corrup- to get credit for that—that we had to just when the aid is delivered, it is not tion going? intervene because he withheld the aid just if all of the aid is delivered, it is No. He just says: Is he going to do the for so long and that this is the only also what message does the freeze send investigation? Is Zelensky going to do reason Ukraine got all of the aid we to our friend and, even more impor- the investigation? And Sondland says: had approved in the first place? tantly, to our foe, and the message it Yes. He will do anything you want. He My colleagues have glossed over the sent was a disaster—was a disaster. loves your ass. fact that what they did was illegal, Now, you might ask yourself because This is the extent of the President’s that the GAO—independent watchdog counselors said: Hey, President Trump interest in Ukraine. They go on to talk agency—found that that hold was ille- has given lethal weapons to Ukraine— about other things, and then they hang gal. So it not only violated the law, it you might ask yourself, if the Presi- up. And David Holmes turns to the Am- not only took an act of Congress to dent was so concerned about corrup- bassador and says—in language which I make sure they ultimately got the aid, tion, why didn’t he do that in 2017, and will have to modify to remove an ex- but this is supposed to be the defense why didn’t he do that in 2018? Why was pletive—says something along the lines as to why you shouldn’t see the docu- it only 2019 that there was a problem? of: Does the President give a ‘‘blank’’ ments? Is that what we are to believe? Was there no corruption in Ukraine in about Ukraine? And Sondland says: No. Now, counsel also says, well, he is 2017? Was there no corruption in He doesn’t give a ‘‘blank’’ about not the first President to withhold aid. Ukraine in 2018? Ukraine. He only cares about the big And that is true. After all, counsel No. Ukraine has always battled cor- stuff, like the investigation of the says: Well, President Obama withheld ruption. It wasn’t the presence or lack Bidens that Giuliani wants. aid to Egypt. Yes. It was at the urging of corruption in one year to another; it This is a million-dollar donor to the was the presence of Joe Biden as a po- of the Members of Congress. Senators Trump inaugural admitting the Presi- tential candidate for President. That dent doesn’t care about Ukraine. He McCain and GRAHAM urged that that was the key change in 2019. That made doesn’t care whether they get military aid be withheld. And why? Because all the difference. dollars to defend themselves. He there was a revolution in Egypt after it Let’s get back to one of the key mo- doesn’t care about what position was appropriated. It was not something ments in this saga. A lot of you are at- Zelensky goes into in these negotia- that was hidden from Congress. That torneys—you are probably much better tions with Putin. He doesn’t care about was a pretty darned good reason to attorneys than I am—and I am sure that. think, do we still want to give aid to you had the experience in cases you Isn’t that clear? It is why he didn’t this government after this revolution? tried where there was some vignette, care about corruption in 2017 or 2018, We are not saying that aid has never some conversation, some document. It and he certainly didn’t care about it in been withheld—that is absurd—but I may not have been the most important 2019. All he cared about was the big would hope and expect this is the first on its face, but it told you something stuff that affected him personally, like time aid has been withheld by a Presi- about the case that was much larger this investigation that he wanted of dent of the United States to coerce an than that conversation. the Bidens. ally at war to help him cheat in the For me, one of those conversations So we do ask: Do you want to see next election. I think that is a first, was not on July 25 between President these documents? Do you want to know but what we do here may determine Trump and President Zelensky but on if these documents corroborate Ambas- whether it is the last. July 26, the very next day. sador Sondland? Will the documents There is one other thing about this Now, you may have watched some of show, as we fully expect they will, that pause in aid, right? It is the argument: the House proceedings or you may not the only thing he cared about was the Well, no harm, no foul. OK. You got have, and people watching may have big stuff that affected him? caught. They got the aid. What is the seen it and maybe they didn’t, but David Holmes’ response was: Well, big deal? there is this scene in a Ukrainian res- you know, there is some big stuff going Well, as we heard during the trial, it taurant—a restaurant in Kyiv—with on here, like the war with Russia. This is not just the aid. Aid is obviously the Gordon Sondland. Now, bear in mind it isn’t withholding aid because of a revo- most important thing, as Mr. CROW was Gordon Sondland who said there lution in Egypt. This is withholding mentioned—you know, without it, you was absolutely quid pro quo and two aid from a country in which 15,000 peo- can’t defend yourself—and we will have plus two equals four. This is not some ple have died fighting the Russians, testimony as to just what kind of mili- Never Trumper. This is a million-dollar and as Ambassador Taylor said and tary aid the President was with- donor to the Trump inauguration. OK? others: You know, Russia is fighting to holding. But we also had testimony If there is a bias there, it is clearly in remake the map of Europe by dint of that it was the fact of the aid itself a million-dollar bias in favor of this military force. that was so important to Ukraine, the President, not against him. If we think that is just about fact that the United States had So there is the scene in Kyiv, in this Ukraine’s security, we are very de- Ukraine’s back. And why? Because this restaurant. Sondland has a cell phone, ceived. It is about our security. It is

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00119 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.048 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S406 CONGRESSIONAL RECORD — SENATE January 21, 2020 about the tens of thousands of troops [Rollcall Vote No. 17] RECESS we have in Europe. And if we undercut YEAS—53 Mr. MCCONNELL. Mr. Chief Justice, our own ally, if we give Russia reason Alexander Fischer Perdue I ask unanimous consent that the Sen- to believe we will not have their back, Barrasso Gardner Portman ate stand in recess until 8 p.m. that we will use Ukraine as a play Blackburn Graham Risch There being no objection, at 7:31 thing or worse to get them to help us Blunt Grassley Roberts Boozman Hawley p.m., the Senate, sitting as a Court of cheat in an election, that will only em- Romney Braun Hoeven Rounds Impeachment, recessed until 8:13 p.m. bolden Putin to do more. Burr Hyde-Smith Rubio and reassembled when called to order Capito Inhofe Sasse by the Presiding Officer, the CHIEF JUS- You said it as often as I have—the Cassidy Johnson Scott (FL) only thing he respects is strength. You Collins Kennedy TICE. Scott (SC) Cornyn Lankford The CHIEF JUSTICE. Mr. SCHIFF, are think that looks like strength to Shelby Cotton Lee Vladimir Putin? I think that looks like Sullivan you in favor of the motion or opposed? Cramer Loeffler Mr. Manager SCHIFF. In favor, Your something that Vladimir Putin is only Crapo McConnell Thune too accustomed to, and that is the kind Cruz McSally Tillis Honor. of corruption that he finds and perpet- Daines Moran Toomey The CHIEF JUSTICE. Mr. Cipollone? Enzi Murkowski Wicker Mr. Counsel CIPOLLONE. We are op- uates in his own regime and pushes all Ernst Paul Young posed. around the world. NAYS—47 The CHIEF JUSTICE. Mr. SCHIFF, My colleague VAL DEMINGS made ref- the managers will go first and are able erence to a conversation which I think Baldwin Hassan Rosen Bennet Heinrich Sanders to reserve time for rebuttal. is one of the other key vignettes in this Blumenthal Hirono Schatz Mr. Manager JEFFRIES. Mr. Chief whole sad saga, and that is a conversa- Booker Jones Schumer Justice, distinguished Members of the tion that Ambassador Volker had with Brown Kaine Shaheen Senate, counsel for the President, my Cantwell King Sinema Andriy Yermak, one of the top aides to Cardin Klobuchar name is HAKEEM JEFFRIES, and I have President Zelensky. Smith the honor of representing the 8th Con- Carper Leahy Stabenow Casey Manchin This is a conversation in which Am- Tester gressional District of New York, in Coons Markey Udall Brooklyn and Queens. It is one of the bassador Volker is doing exactly what Cortez Masto Menendez Van Hollen he is supposed to be doing, which is he Duckworth Merkley most diverse districts in the Nation. In is telling Yermak: You know, you guys Durbin Murphy Warner fact, I have been told that I have the Feinstein Murray Warren 9th most African-American district in shouldn’t really do this investigation Whitehouse Gillibrand Peters the country and the 16th most Jewish. of your former President Poroshenko Harris Reed Wyden because it would be for a political rea- Here on the Hill, some folks have son. You really shouldn’t engage in po- The CHIEF JUSTICE. On this vote, said: Hakeem, is that complicated? But as my friend Leon Goldenberg litical investigations. And as Rep- the yeas are 53, the nays are 47. The motion to table is agreed to; the says back at home: Hakeem, you have resentative DEMINGS said: What is the amendment is tabled. the best of both worlds. response of the Ukrainians? Oh, you You see, in America, our diversity is mean like the one you want us to do of The CHIEF JUSTICE. The Demo- cratic leader is recognized. a strength; it is not a weakness. And the Bidens and the Clintons. Threw it one of the things that binds us to- right back in his face. Ukraine is not AMENDMENT NO. 1287 gether—all of us—as Americans, re- oblivious to that hypocrisy. Mr. SCHUMER. Mr. Chief Justice, I gardless of race, regardless of religion, Mr. Sekulow says: What are we here send an amendment to the desk to regardless of region, regardless of sex- for? You know, part of our strength is issue a subpoena to John Michael ual orientation, and regardless of gen- not only our support for our allies, it is ‘‘Mick’’ Mulvaney, and I ask that it be der is that we believe in the rule of law not only our military might, it is what read. and the importance of a fair trial. we stand for. The CHIEF JUSTICE. The clerk will The House managers strongly sup- We used to stand for the rule of law. report. port this amendment to subpoena wit- We used to champion the rule of law The legislative clerk read as follows: ness testimony, including with respect around the world. Part of the rule of The Senator from New York [Mr. SCHUMER] to Mick Mulvaney. law is, of course, that no one is above proposes an amendment numbered 1287. Who has ever heard of a trial with no the law. witnesses? But that is exactly what (Purpose: To subpoena John Michael ‘‘Mick’’ some are contemplating here today. But to be out in Ukraine or anywhere Mulvaney) This amendment would address that else in the world championing the rule At the appropriate place in the resolving fundamental flaw. It would ensure that of law and saying don’t engage in polit- clause, insert the following: the trial includes testimony from a key ical prosecutions and having them SEC. lll. Notwithstanding any other witness: the President’s Acting Chief of throw it right back in our face: Oh, you provision of this resolution, pursuant to Staff and head of the Office of Manage- mean like the one you want us to do— rules V and VI of the Rules of Procedure and ment and Budget, Mick Mulvaney, and that is why we are here. That is why Practice in the Senate When Sitting on Im- it would ensure that the Senate can we are here. That is why we are here. peachment Trials, the Chief Justice of the United States, through the Secretary of the consider his testimony immediately. I yield back. Senate, shall issue a subpoena for the taking Let’s discuss why the need to hear Mr. MCCONNELL. Mr. Chief Justice. of testimony of John Michael ‘‘Mick’’ from Mick Mulvaney is so critical. The CHIEF JUSTICE. The majority Mulvaney, and the Sergeant at Arms is au- First, Leader MCCONNELL’s resolu- leader is recognized. thorized to utilize the services of the Deputy tion undercuts more than 200 years of Sergeant at Arms or any other employee of Senate impeachment trial practice. It MOTION TO TABLE the Senate in serving the subpoena author- departs from every impeachment trial ized to be issued by this section. Mr. MCCONNELL. Mr. Chief Justice, conducted to date. It goes against the I send a motion to the desk to table the The CHIEF JUSTICE. The majority Senate’s own longstanding impeach- amendment, and I ask for the yeas and leader is recognized. ment rules, which contemplate the pos- nays. Mr. MCCONNELL. Mr. Chief Justice, sibility of new witness testimony. In The CHIEF JUSTICE. Is there a suffi- I ask unanimous consent for a 30- fact, it departs from any criminal or cient second? minute recess before the parties are civil trial procedure in America. Why recognized to debate the Schumer There is a sufficient second. should this President be held to a dif- amendment. ferent standard? The clerk will call the roll. Following the debate time, I will Second, the proposed amendment for The legislative clerk proceeded to once again move to table the amend- witness testimony is necessary in light call the roll. ment because those witnesses and evi- of the President’s determined effort to The result was announced—yeas 53, dence, as I repeatedly said, are ad- bury the evidence and cover up his cor- nays 47, as follows: dressed in the underlying resolution. rupt abuse of power.

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00120 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.050 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S407 The House tried to get Mr. other times, they included dozens. In is doing. Complete and total Presi- Mulvaney’s testimony. We subpoenaed one case, there were over 100 different dential obstruction is unprecedented in him. Mr. Mulvaney, together with witnesses. American history. Even President other key witnesses—National Secu- As the slide shows, the average num- Nixon, whose Articles of Impeachment rity Advisor John Bolton, senior White ber of witnesses to appear at a Senate included obstruction of Congress, did House aide Robert Blair, Office of Man- impeachment trial is 33, and in at least not block key White House aides from agement and Budget official Michael 3 of those instances, including the im- testifying in front of Congress during Duffey, and National Security Council peachment of Bill Clinton, witnesses the Senate Watergate hearings. In fact, lawyer John Eisenberg—were called to appeared before the Senate who had he publicly urged White House aides to testify before the House as part of this not previously appeared before the testify. impeachment inquiry, but President House. That is because the Senate, this Remember all of those witnesses who Trump was determined to hide from great institution, has always taken its came in front of this body? Take a look the American people what they had to responsibility to administer a fair trial at the screen. John Dean, the former say. The President directed the entire seriously. The Senate has always taken White House Counsel, testified for mul- executive branch and all of his top its duty to obtain evidence, including tiple days pursuant to a subpoena. H.R. aides and advisers to defy all requests witness testimony, seriously. The Sen- Haldeman, President Nixon’s former for their testimony. That cannot be al- ate has always taken its obligation to Chief of Staff, was subpoenaed and tes- lowed to stand. evaluate the President’s conduct based tified. Alexander Butterfield, the White Third, Mr. Mulvaney is a highly rel- on a full body of available information House official who revealed the exist- evant witness to the events at issue in seriously. This is the only way to en- ence of the tapes, testified publicly be- this trial. Mr. Mulvaney was at the sure fundamental fairness for everyone fore the Senate, and so did several oth- center of every stage of the President’s involved. ers. President Trump’s complete and substantial pressure campaign against Respectfully, it is important to total obstruction makes Richard Nixon Ukraine. Based on the extensive evi- honor that unbroken precedent today look like a choirboy. dence the House did obtain, it is clear so that Mr. Mulvaney’s testimony, Two other Presidents have been tried that Mulvaney was crucial in planning without fear or favor as to what he before the Senate. How did they con- the scheme, executing its implementa- might say, can inform this distin- duct themselves? tion, and carrying out the coverup. guished body of Americans. William Jefferson Clinton and An- Emails and witness testimony show This amendment is also important to drew Johnson did not block any wit- counter the President’s determination that Mr. Mulvaney was in the loop on nesses from participating in the Senate to bury the evidence of high crimes and the President’s decision to explicitly trial. President Trump, by contrast, re- misdemeanors. fuses to permit relevant witnesses from condition a White House meeting on As we have explained in detail today, testifying to this very day. Ukraine’s announcement of investiga- despite considerable efforts by the Many of President Clinton’s White tions beneficial to the President’s re- House to obtain relevant documents House aides testified in front of Con- election prospects. and testimony, President Trump has He was closely involved in imple- gress, even before the commencement directed the entire executive branch to menting the President’s hold on the se- of formal impeachment profession. execute a coverup. He has ordered the curity assistance and subsequently ad- During various investigations in the entire administration to ignore the mitted that the funds were being with- mid-1990s, the House and the Senate powers of Congress’s separate and co- held to put pressure on Ukraine to con- heard from more than two dozen White equal branch of government to inves- duct one of the phony political inves- House aides, including the White House tigate his offenses in a manner that is tigations that the President wanted— Counsel, the former Chief of Staff, and unprecedented in American history. multiple senior advisers to President phony political investigations. There were 71 requests by the House A trial would not be complete with- for relevant evidence. In response, the Clinton. President Clinton himself gave testi- out the testimony of Mick Mulvaney. White House produced zero documents mony on camera and under oath. He Make no mistake. The evidentiary in this impeachment inquiry—71 re- also allowed his most senior advisers, record that we have built is powerful quests, 0 documents. and can clearly establish the Presi- President Trump is personally re- including multiple Chiefs of Staff and dent’s guilt on both of the Articles of sponsible for depriving the Senate of White House Counsels, to testify in the Impeachment, but it is hardly com- information important to consider in investigation that led to his impeach- plete. The record comes to you without this trial. This point cannot be over- ment. the testimony of Mr. Mulvaney and stated. When faced with a congres- As you can see in the chart, their tes- other important witnesses. sional impeachment inquiry, a process timony was packaged and delivered to That brings me to one final prelimi- expressly set forth by the Framers of the Senate. There were no missing wit- nary observation. The American people the Constitution in article I, the Presi- nesses who had defied subpoenas. No agree that there cannot be a fair trial dent refused to comply in any respect, aides who had personal knowledge of without hearing from witnesses who and he ordered his senior aides to fall his misconduct were directed to stay have relevant information to provide. in line. silent by President Clinton. The Constitution, our democracy, the As shown on the slide, as a result of We have an entirely different situa- Senate, the President and, most impor- President Trump’s obstruction, 12 key tion in this case. Here we are seeking tantly, the American people deserve a witnesses, including Mr. Mulvaney, re- witnesses the President has blocked fair trial. A fair trial requires wit- fused to appear for testimony in the from testifying before the House. Ap- nesses in order to provide the truth, House’s impeachment inquiry. No one parently, President Trump thinks he the whole truth, and nothing but the has heard what they have to say. These can do what no other President before truth. That is why this amendment witnesses include central figures in the him has attempted to do in such a bra- should be adopted. abuse of power charged in article I. zen fashion: float above the law and Before we discuss Mr. Mulvaney’s What is the President hiding? hide the truth from the American peo- knowledge of the President’s geo- Equally troublesome, President ple. That cannot be allowed to stand. political shakedown, it is important to Trump and his administration did not Let me now address some bedrock note that an impeachment trial with- make any legitimate attempts to reach principles about the Congress’s author- out witnesses would be a stunning de- a reasonable accommodation with the ity to conduct investigations. Our parture from this institution’s past House or compromise regarding any broad powers of inquiry are at their practice. document requests or witness sub- strongest during an impeachment pro- This distinguished body has con- poenas. Why? Because President Don- ceeding, when the House and Senate ducted 15 impeachment trials. All have ald John Trump wasn’t interested in exercise responsibilities expressly set included witnesses. Sometimes those cooperating. He was plotting a coverup. forth in article I of the Constitution. trials included just a handful of wit- It is important to take a step back Nearly 140 years ago, the Supreme nesses, as indicated on the screen. At and think about what President Trump Court recognized that, when the House

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00121 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.055 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S408 CONGRESSIONAL RECORD — SENATE January 21, 2020 or Senate is determining a question of even admitted publicly that the aid (Text of Videotape presentation:) impeachment, there is no reason to was withheld in order to pressure Dr. HILL. So I was upset with him that he doubt the right to compel the attend- Ukraine into announcing an investiga- wasn’t fully telling us about all of the meet- ance of witnesses, and their answer to tion designed to elevate the President’s ings that he was having. And he said to me, proper questions, in the same manner political standing. But I’m briefing the President, I’m briefing and by the use of the same means that Mr. Mulvaney, perhaps more than Chief of Staff Mulvaney, I’m briefing Sec- any other administration witness, ex- retary Pompeo, and I talked to Ambassador courts of justice can in like cases. Our Bolton. Who else do I have to deal with? And Nation’s Founders and greatest legal cepting the President, has firsthand in- the point is, we have a robust interagency minds recognized these principles early sight into the decision to withhold $391 process that deals with Ukraine. It includes on. Supreme Court Justice Joseph million in military and security aid to Mr. Holmes. It includes Ambassador Taylor Story explained that the President a vulnerable Ukraine without justifica- as the charge in Ukraine. It includes a whole should not have the power of pre- tion. Indeed, our investigation revealed load of other people. But it struck me when venting a thorough investigation of his that President Trump personally or- yesterday, when you put up on the screen conduct or of securing himself against dered Mr. Mulvaney to execute the Ambassador Sondland’s emails and who was freeze in July of 2019. Mr. Mulvaney on these emails, and he said, These are the the disgrace of a public conviction by people who need to know, that he was abso- impeachment, if he should deserve it. holds the senior-most staff position at lutely right. Because he was being involved President Trump cannot function as the White House. He is a member of in a domestic political errand, and we were judge, jury, and executioner of our de- President Trump’s Cabinet, and he is being involved in national security foreign mocracy. It wasn’t just the courts that responsible for President Trump’s team policy, and those two things had just di- confirmed this for us. It was some of at 1600 Pennsylvania Avenue. He re- verged. our Nation’s leading public servants. mains the Director of the Office of Mr. Manager JEFFRIES. And there Representative John Quincy Adams, Management and Budget, which imple- is more—much more. A month later, speaking on the floor of the House, mented the hold on the security assist- President Trump’s National Security after he had served as President, once ance, in violation of the law, as the Advisor at the time, John Bolton, told explained: ‘‘What mockery would it be Government Accountability Office re- Dr. Fiona Hill to tell the National Se- for the Constitution of the United cently concluded. curity Council’s lawyers that he was States to say that the House should In short, respectfully, the Senate’s not part of whatever drug deal have the power of impeachment, ex- responsibility to conduct a complete Sondland and Mulvaney were cooking tending even to the President of the and fair trial demands that Mr. up. He made that statement after Am- United States himself, and yet to say Mulvaney testify. bassador Sondland specifically said that the House had not the power to Second, Mr. Mulvaney’s testimony is that he had a deal with Mr. Mulvaney obtain the evidence and proofs on critical because of his knowledge of the to schedule a White House visit for which their impeachment was based.’’ planning of President Trump’s abuse of President Zelensky if Ukraine an- As Hamilton, Story, Adams, and oth- power. Ambassador Gordon Sondland, nounced the two phony investigations ers have recognized, the President can- the U.S. Ambassador to the European involving the Bidens and 2016 election not insulate himself from Congress’s Union, testified that there was a quid interference—investigations that were investigations of his wrongdoing. If the pro quo. Ambassador Sondland is not a sought by President Donald John President could decide what evidence so-called Never Trumper. Mr. Sondland Trump. gets to be presented in his own trial, gave $1 million to President Trump’s Here is Dr. Hill’s testimony about that would fundamentally nullify the inauguration. Sondland describing this drug deal he constitutional power of impeachment. He testified that everybody was in had with Mulvaney. This amendment is important be- the loop and that it was no secret what (Text of Videotape presentation:) cause President Trump simply cannot was going on. In fact, as early as May Dr. HILL. And so when I came in, Gordon be allowed to hide the truth. No other of 2019, Ambassador Sondland made Sondland was basically saying, well, look, we President has done it; the Supreme clear that he was coordinating on have a deal here that there will be a meet- Court does not allow it; and the Presi- Ukraine matters with Mr. Mulvaney. ing. I have a deal here with Chief of Staff dent is not above the law. Here is what David Holmes, an offi- Mulvaney that there will be a meeting if the cial at the U.S. Embassy in Ukraine, Ukrainians open up or announce these inves- Witnesses matter. Documents mat- tigations into 2016 and Burisma. And I cut it ter. Evidence matters. The truth mat- had to say on that matter: off immediately there. Because by this point, ters. (Text of Videotape presentation:) having heard Mr. Giuliani over and over Let me now turn to the third jus- Mr. HOLMES. While Ambassador again on the television and all of the issues tification for this amendment. Mr. Sondland’s mandate as the accredited Am- that he was asserting, by this point it was Mulvaney’s testimony is critical to bassador to the European Union did not clear that Burisma was code for the Bidens, considering the case for removal. It is cover individual member states, let alone because Giuliani was laying it out there. I nonmember countries like Ukraine, he made could see why Colonel Vindman was alarmed, imperative that we hear from the clear that he had direct and frequent access President’s closest aide, a man inti- and he said, this is inappropriate, we’re the to President Trump and Chief of Staff Mick National Security Council, we can’t be in- mately involved at key stages of this Mulvaney and portrayed himself as the con- volved in this. extraordinary abuse of power. Presi- duit to the President and Mr. Mulvaney for Mr. Manager JEFFRIES. The ref- dent Trump knows this. Why else this group. erenced agreement between Ambas- would he be trying so hard to prevent Mr. Manager JEFFRIES. After the sador Sondland and Mick Mulvaney Mick Mulvaney from testifying before U.S. delegation returned from the inau- was so upsetting that Dr. Hill reported you? guration of the new Ukrainian Presi- it to National Security Council legal There are at least four reasons why dent in April, they were able to secure advisers. Here is the testimony of Dr. Mr. Mulvaney’s testimony is critical. an Oval Office meeting with President Hill explaining these particular con- To begin with, as Acting White House Trump to brief him on their trip, in cerns. Chief of Staff and head of the Office of part because of Ambassador Sondland’s (Text of Videotape presentation:) Management and Budget, Mick connections to Mick Mulvaney. Dr. HILL. Yes, but he was—he was making Mulvaney has firsthand knowledge Then, during a June 18, 2019, meeting, a very strong point that he wanted to know about President Trump’s efforts to Ambassador Sondland informed Na- exactly what was being said. And when I shake down Ukraine and pressure its tional Security Council Senior Direc- came back and related it to him, he had new President into announcing phony tor Dr. Fiona Hill that he was in some very specific instructions for me. And investigations. charge of Ukraine and that he had been I’m presuming that that’s the question that Mr. Mulvaney was in the loop at each briefing senior White House officials, you’re asking. critical stage of President Trump’s including Mr. Mulvaney, about his ef- Mr. GOLDMAN. What was that specific instruction? scheme. He was in the loop in the plan- forts to undertake, as Dr. Hill put it, a Dr. HILL. The specific instruction was ning of the scheme; he was in the loop domestic political errand in Ukraine. that I had to go to the lawyers, to John in its implementation; and he was in Here is Dr. Hill explaining this her- Eisenberg, our senior counsel for the Na- the loop when the scheme fell apart. He self. tional Security Council, to basically say,

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00122 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.057 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S409 you tell Eisenberg, Ambassador Bolton told scheme, including the unlawful White Mr. Mulvaney presumably has an- me that I am not part of this whatever drug House freeze on $391 million in aid to swers to these questions. We don’t deal that Mulvaney and Sondland are cook- Ukraine. know what those answers are, but he ing up. This isn’t just other people fingering should provide them to this Senate and Mr. GOLDMAN. What did you understand Mr. Mulvaney. Mr. Mulvaney has him- him to mean by the drug deal that Mulvaney to the American people. and Sondland were cooking up? self admitted that he was involved. Finally, on October 17, 2019, at a Dr. HILL. I took it to mean investigations (Text of Videotape presentation:) press briefing at the White House, Mr. for a meeting. Mr. MULVANEY. Again, I was involved Mulvaney left no doubt that President Mr. GOLDMAN. Did you go speak to the with the process by which the money was Trump withheld the essential military lawyers? held up temporarily, okay? aid as leverage to try to extract phony Dr. HILL. I certainly did. Mr. Manager JEFFRIES. The public political investigations as part of his Mr. Manager JEFFRIES. Sondland’s reports confirm Mr. Mulvaney’s own effort to solicit foreign interference in testimony not only corroborates Dr. account that he has information that the 2020 election. Hill’s account. He actually says that goes to the heart of this inquiry, spe- This was an extraordinary press con- Mick Mulvaney, the subject of this cifically related to why the President ference. Mr. Mulvaney made clear that amendment, who should appear before ordered the hold on aid to Ukraine and the President was, in fact, pressuring the Senate if we are going to have a kept it in place, despite deep-seated Ukraine to investigate the conspiracy free and fair trial—Sondland says Mick concerns among Trump administration theory that Ukraine, rather than Rus- Mulvaney knew all about it. officials. sia, had interfered in the 2016 elec- (Text of Videotape presentation:) This New York Times article on the tion—a conspiracy theory promoted by The CHAIRMAN. What I want to ask you screen summarizes an email conversa- none other than the great purveyor of about is, he makes reference in that drug tion between Mr. Mulvaney and Robert democracy, Vladimir Putin himself. deal to a drug deal cooked up by you and Blair, a senior administration adviser, When White House reporters at- Mulvaney. It’s the reference to Mulvaney on June 27, when Mr. Mulvaney asked: tempted to clarify this acknowledge- that I want to ask you about. You’ve testi- ‘‘Did we ever find out about the money ment of a quid pro quo related to secu- fied that Mulvaney was aware of this quid for Ukraine and whether we can hold it rity assistance, Mr. Mulvaney replied, pro quo, of this condition that the Ukrain- back?’’ ians had to meet, that is, announcing these ‘‘We do that all the time with foreign What prompted that email? Accord- policy. I have news for everybody: get public investigations to get the White House ing to public reports, Mr. Mulvaney over it.’’ meeting. Is that right? was on Air Force One—Air Force One— Mr. SONDLAND. Yeah. A lot of people Let’s listen to a portion of that stun- were aware of it. And— with President Trump when he sent it. ning exchange. The CHAIRMAN. Including Mr. Mulvaney? What other conversations did Mr. (Text of Videotape presentation:) Mr. SONDLAND. Correct. Mulvaney have with the President and Answer. Did he also mention to me in the Mr. Manager JEFFRIES. The docu- White House officials about this unlaw- past that the corruption related to the DNC ments also highlight the extensive in- ful freeze? The American people de- server, absolutely. No question about that. volvement of Mick Mulvaney in this serve to know. But that’s it. And that’s why we held up the There is other significant evidence geopolitical shakedown scheme. Email money. Now there was a report— concerning Mr. Mulvaney’s role in im- Question. So the demand for an investiga- messages summarized by Ambassador plementing the scheme. According to tion into the Democrats was part of the rea- Sondland during his sworn testimony multiple witnesses, the direction to son that he wanted to withhold funding to show that he informed Mr. Mulvaney, freeze the security assistance to Ukraine. as well as Secretary Pompeo and Sec- Answer. The look back to what happened Ukraine was delivered by Mick retary Perry, of his efforts to persuade in 2016— Mulvaney himself. President Zelensky to announce the in- Question. The investigation into Demo- Office of Management and Budget of- crats— vestigations desired by President ficial Mark Sandy testified about a Answer.—certainly was part of the thing Trump. July 12 email from Mr. Will Blair stat- he was worried about in corruption with that For example, as shown on the screen, ing that President Trump ‘‘is directing nation. That is absolutely appropriate. on July 19, Ambassador Sondland a hold on military support funding for Question. But to be clear, what you just emailed several top administration of- described is a quid pro quo. It is: Funding Ukraine.’’ will not flow unless the investigation into ficials, including Mr. Mulvaney, stat- Was Mr. Blair acting at Mr. ing that he had talked to President the Democratic server happens as well. Mulvaney’s express direction? The Answer. We do that all the time with for- Zelensky to help prepare him for a Members of this distinguished body de- eign policy. We were holding money at the phone call with President Trump, and serve to know. same time for—what was it? The Northern he reported that President Zelensky On July 18, the hold was announced Triangle countries. We were holding up aid planned to assure President Trump to the agencies in the administration at the Northern Tribal countries so that that he intends to run a fully trans- overseeing Ukraine policy matters. they would change their policies on immi- parent investigation and will turn over Those present were blindsided by the gration. By the way—and this speaks to an every stone. announcement that the security aid important point—I’m sorry? This speaks to Ambassador Sondland made clear in an important point, because I heard this yes- appropriated by this Congress on a bi- terday and I can never remember the gen- his testimony that he was referring to partisan basis to Ukraine, which is still tleman who testified. Was it McKinney, the the Burisma/Biden and 2016 election in- at war with Russian-backed separatists guy—was that his name? I don’t know him. terference investigations that were ex- in the east, were alarmed that that aid He testified yesterday. And if you go—and if plicitly mentioned by President Trump had inexplicably been put on hold. you believe the news reports—okay? Because on the July 25 phone call. Meanwhile, officials at the Defense we’ve not seen any transcripts of this. The Mr. Mulvaney wrote in a response: I Department and within the Office of only transcript I’ve seen was Sondland’s tes- asked NSC to set it up. Management and Budget became in- timony this morning. If you read the news What exactly did Mr. Mulvaney know creasingly concerned that the hold also reports and you believe them—what did McKinney say yesterday? Well, McKinney about the Ukrainian commitment to violated the law. Their concerns turned said yesterday that he was really upset with turn over every stone? And when did he out to be accurate. the political influence in foreign policy. know it? Public reports have indicated that That was one of the reasons he was so upset These are many of the questions that the White House is in possession of about this. And I have news for everybody: require answers, under oath, from Mr. early August emails, exchanges be- Get over it. There’s going to be political in- Mulvaney. Mr. Mulvaney is also a cen- tween Acting Chief of Staff Mick fluence in foreign policy. tral figure with respect to how Presi- Mulvaney and White House budget offi- Mr. Manager JEFFRIES. In this ex- dent Trump implemented his pressure cials seeking to provide an explanation traordinary press conference, Mr. campaign. for the funds—an explanation, I should Mulvaney spoke with authority and According to public reports and wit- note, that they were trying to provide conviction about why President Trump ness testimony, Mr. Mulvaney was after the President had already ordered withheld the aid. He did not mince his deeply involved with implementing the the hold. words. But then following the press

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00123 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.058 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S410 CONGRESSIONAL RECORD — SENATE January 21, 2020 conference, he tried to walk back his fact, even the words President Trump evening. My name is Michael Purpura. statements, as if he had not said them, used through his White House Counsel I serve as Deputy Counsel to the Presi- or had not meant them. We need to were made up. dent. hear from Mick Mulvaney directly so In the letter, Mr. Cipollone referred We strongly oppose the amendments he can clarify his true intentions. to so-called ‘‘executive branch con- and support the resolution. There is Having gone through the need for the fidentiality interests.’’ But that is not simply no need to alter the process on evidence, let’s briefly address the a recognized jurisprudential shield, not witnesses and documents from that of President’s arguments that he can a proper assertion of executive privi- the Clinton trial, which was supported block this testimony. That argument is lege. To the extent that there are privi- by this body 100 to 0. not only wrong, it fundamentally un- lege issues to consider, those can be re- At its core, this case is very simple, dermines our system of checks and bal- solved during their testimony, as they and the key facts are undisputed. ances. have been for decades. First, you have seen the transcripts Step back for a moment and consider And finally, the President claimed which the President released—trans- the extraordinary position that Presi- that Mr. Mulvaney could not be com- parent and unprecedented. There was dent Trump is trying to manufacture pelled to testify because of so-called no quid pro quo for anything. Security for himself. absolute immunity. But every court to assistance funds aren’t even mentioned The Department of Justice has al- address this legal fiction has rejected on the call. ready said that the President cannot be it. Second, President Zelensky and the indicted or prosecuted in office. As we As the Supreme Court emphatically highest ranking officials in the Ukrain- sit here today, the President has actu- stated, in unanimous fashion, in its de- ian Government repeatedly have said ally filed a brief in the Supreme Court cision on the Nixon tapes, confiden- there was no quid pro quo and there saying he cannot be criminally inves- tiality interests of the President must was no pressure. Third, the Ukrainians were not even tigated while in the White House. yield to an impeachment inquiry when aware of the pause in the aid at the The Senate and the House are the there is a legitimate need for the infor- time of the call and weren’t aware of only check that is left when the Presi- mation, as there is here today. it—they did not become aware of it dent abuses his power, tries to cheat in There can be no doubt that Mr. the next election, undermines our na- until more than a month later. Mulvaney, as the President’s Chief of Fourth, the only witnesses in the tional security, breaks the law in doing Staff and head of the Office of Manage- House record who actually spoke to the so, and then tries to cover it up. This is ment and Budget, is uniquely situated President about the aid—Ambassador America. No one is above the law. to provide this distinguished body with But if the President is allowed to de- Sondland and Senator RON JOHNSON— relevant and important information say the President was unequivocal in termine whether he is even inves- about the charges in the Articles of Im- tigated by Congress, if he is allowed to saying there was no quid pro quo. peachment. Fifth, and this one is pretty obvious, decide whether he should comply with The President’s obstruction has no the aid flowed and President Trump lawful subpoenas in connection with an basis in law and should yield to this and President Zelensky met without impeachment inquiry or trial, then he body’s coequal authority to investigate any investigations started or an- is the ultimate arbiter of whether he impeachable and corrupt conduct. nounced. did anything wrong. That cannot One final point bears mentioning. If Finally—and I ask that you not lose stand. the President wanted to make wit- sight of the big picture here—by pro- If he can’t be indicted, and he can’t nesses available, even while preserving viding legal aid to Ukraine, President be impeached, and he can’t be removed, the limited protections of executive Trump has proven himself to be a bet- then he can’t be held accountable. That privilege, he can do so. In fact, Presi- ter friend and ally to Ukraine than his is inconsistent with the U.S. Constitu- dent Trump expressed his desire for predecessor. tion. witnesses to testify in the Senate just The time for the House managers to You will no doubt hear that the rea- last month. bring their case is now. They had their son the President blocked all of these Let’s go to the videotape. chance to develop their evidence before witnesses, including Mr. Mulvaney, (Text of Videotape presentation:) they sent the Articles of Impeachment from testifying is because of some lofty President TRUMP. So, when it’s fair, and to this Chamber. This Chamber’s role concern for the Office of the Presi- it will be fair in the Senate, I would love to is not to do the House’s job for it. dency and the preservation of execu- have Mike Pompeo, I’d love to have Mick, I’d I yield the balance of my time to Mr. tive privilege. love to have Rick Perry and many other peo- Cipollone. Let’s get real. How can blocking wit- ple testify. Mr. Counsel CIPOLLONE. Thank nesses from telling the truth about the Mr. Manager JEFFRIES. If President you, Mr. Chief Justice. President’s misconduct help preserve Trump had nothing to hide, as he and Just a couple of observations. First the Office of the Presidency? This type his advisers repeatedly claim, they of all, as Mr. Purpura said, what we are of blanket obstruction undermines the should all simply testify in the Senate talking about is when this question is credibility of the Office of the Presi- trial. What is President Donald John addressed. Under the resolution, that dency and deals the Constitution a po- Trump hiding from the American peo- will be next week. This resolution was tentially mortal death blow. ple? accepted 100 to 0. Some of you were To be clear, executive privilege does The Constitution requires a fair trial. here then and thought it was great. If not provide a legally justifiable basis Our democracy needs a fair trial. we keep going like this, it will be next for his complete and total blockage of The American people deserve a fair week. For those of you keeping score evidence. In fact, as you heard earlier trial. A fair trial means witnesses. A at home, they haven’t even started yet. today, President Trump never even in- fair trial means documents. A fair trial We are here today. We came hoping voked executive privilege—not once. means a consideration of all of the to have a trial. They spent the entire And without ever asserting this privi- available evidence. A fair trial means day telling you and the American peo- lege, how can you consider his argu- testimony from Mick Mulvaney. ple that they can’t prove their case. I ment in a serious fashion? Mr. Chief Justice, the House man- could have told you that in 5 minutes Instead, speaking through Mr. agers reserve the balance of our time. and saved us all a lot of time. Cipollone, the distinguished White The CHIEF JUSTICE. Mr. Cipollone. They came here talking about the House Counsel, in a letter dated Octo- Mr. Counsel CIPOLLONE. Thank GAO. It is an organization that works ber 8, 2019, President Trump simply de- you. for Congress. Do you know who dis- cided that he did not want to partici- Mr. Mike Purpura from the White agrees with the GAO? Don’t take it pate in the investigation into his own House Counsel’s Office, Deputy Counsel from me; they do. They sent you Arti- wrongdoing. to the President, will give the argu- cles of Impeachment that make no It was a categorical decision not to ment. claim of any violation of any law. cooperate, without consideration of Mr. Counsel PURPURA. Mr. Chief By the way, you can search high and specific facts or legal arguments. In Justice, Members of the Senate, good low in the Articles of Impeachment,

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00124 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.060 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S411 and you know what it doesn’t say? It Mr. Manager JEFFRIES. Counsel to dent Trump and President Zelensky. doesn’t say ‘‘quid pro quo’’ because the President indicated that we have Let’s think back to what was discussed there wasn’t any. Only in Washington not charged President Trump with a in that call. You might remember from would someone say that it is wrong crime. We have charged him with that call that President Zelensky when you don’t spend taxpayer dollars crimes against the U.S. Constitution— thanks President Trump for the Jav- fast enough even if you spend them on high crimes and misdemeanors and elin anti-tank weapons and says they time. abuse of power. It strikes at the very are ready to order some more. Let’s talk about the Judiciary Com- heart of what the Framers of the Con- And what is President Trump’s im- mittee for a second. They spent 2 days stitution were concerned about—be- mediate response? in the Judiciary Committee—2 days. trayal of one’s oath of office for per- I have a favor to ask, though. The Judiciary Committee is supposed sonal gain and the corruption of our What was it about the President of to be in charge of impeachments. The democracy. High crimes and mis- Ukraine’s bringing up military assist- delivery time for the articles they have demeanors are what this trial is all ance that triggered the President to go produced was 33 days. I think this about. immediately to the favor that he want- might be the first impeachment in his- Counsel for the President again has ed? I think that it is telling that it tory where the delivery time was declined to address the substantive takes place in that part of the con- longer than the investigation in the merits of the amendment that has been versation. Judiciary Committee. offered and tried to suggest that House So, yes, security assistance, military They come here and falsely accuse Democrats have only been focused on assistance did come up in that call. It people—by the way, they falsely ac- trying to oust President Trump. Noth- came up immediately preceding the cused you. You are on trial now. They ing could be further from the truth. ask. What kind of message do you falsely accused people of phony polit- In the last year, we passed 400 bills think that sends to Ukraine? They are ical investigations. Really. Since the and sent them to this Chamber, and 275 not stupid. The people watching this House Democrats took over, that is all of those bills are bipartisan in nature, aren’t stupid. we have had from them. They have addressing issues like lowering Now, Mr. Purpura said: Well, they used their office and all the money healthcare costs and prescription drug never found out about it—or they that the taxpayers send to Washington prices, trying to deal with the gun vio- didn’t find out about the freeze of the to pay them to conduct phony political lence epidemic. We have worked with aid until a month later. Mr. Purpura investigations against the President, President Trump on criminal justice needs to be a little more careful with against his family, against anyone who reform. I personally worked with him, his facts. Let me tell you about some knew him. They started impeaching along with all of you, on the First Step of the testimony you are going to hear, him the minute he was elected. They Act. We worked with him on the U.S.- and you will only hear it because it weaponized the House of Representa- Mexico-Canada trade agreement. We took place in the House. These were tives to investigate incessantly their worked with him to fund the govern- other witnesses from whom you political opponent. And they come here ment. We don’t hate this President, but wouldn’t be able to hear it. and make false allegations of phony we love the Constitution. We love You had Catherine Croft, a witness political investigations. I think the America. We love our democracy. That from the State Department, a career doctors call that projection. It is time is why we are here today. official at the State Department, who for it to end. It is time for someone— The question was asked by Mr. talked about how quickly, actually, for the Senate to hold them account- Sekulow as he opened before this dis- after the freeze went into place that able. tinguished body: Why? Why are we the Ukrainians found out about it, and Think about what they are asking. I here? she started getting contacts from the said it; they didn’t deny it. They are Let me see if I can just posit an an- Ukrainian Embassy here in Wash- trying to remove President Trump’s swer to that question. We are here, sir, ington. She said she was really im- name from the ballot, and they can’t because President Trump pressured a pressed with her diplomatic tradecraft. prove their case. They have told you foreign government to target an Amer- What does that mean? It means she that all day long. Think about what ican citizen for political and personal was really impressed with how quickly they are asking some of you Senators gain. We are here, sir, because Presi- the Ukrainians found out about some- to do. Some of you are running for dent Trump solicited foreign inter- thing that the administration was try- President. They are asking you to use ference in the 2020 election and cor- ing to hide from the American people. your office to remove your political op- rupted our democracy. We are here, sir, Ukraine found out about it. In fact, ponent from the ballot. That is wrong. because President Trump withheld $391 Laura Cooper, a career official at the That is not in the interest of our coun- Defense Department, said that her of- try. And to be honest with you, it is million in military aid from a vulnerable Ukraine without justification in a fice started getting inquiries from not really a show of confidence. Ukraine about the issues with the aid I suppose we will have this debate manner that has been deemed unlaw- on July 25—the very day of the call. So again next week if we ever get there. It ful. We are here, sir, because President much for Ukraine’s not finding out is getting late. I would ask you, re- Donald Trump elevated his personal about this until a month later. spectfully, if we could simply start— political interests and subordinated the national security interests of the I thought this was very telling, too: maybe tomorrow we can start, and The New York Times disclosed that by they can make their argument, and United States of America. We are here, sir, because President Trump corruptly July 30—so within a week of the call they can, I guess, make a case that between President Trump and Presi- they once called ‘‘overwhelming.’’ We abused his power, and then he tried to cover it up. And we are here, sir, to fol- dent Zelensky—Ukraine’s Foreign Min- will see. istry received a diplomatic cable from But this resolution is right, it is fair, low the facts, apply the law, be guided its Embassy, indicating that Trump and it makes sense. You have a right to by the Constitution, and present the had frozen the military aid. Within a hear what they have to say before you truth to the American people. That is week, that cable is reported to have have to decide these critical issues. why we are here, Mr. Sekulow. And if gone from the Ukrainian Embassy to That is all this is about. Is it now or is you don’t know, now you know. the Ukrainian Foreign Ministry. it a week from now? Seriously, can we I yield to my distinguished colleague, Former Ukrainian Deputy Foreign please start? Chairman SCHIFF. Minister Olena Zerkal said: Thank you. Mr. Manager SCHIFF. I thank the The CHIEF JUSTICE. Mr. Cipollone, gentleman for yielding and just want We had this information. It was definitely is your side complete? to provide a couple of quick fact mentioned that there were some issues. Mr. Counsel CIPOLLONE. Yes, we checks to my colleagues at the other She went on to say that the cable are, Mr. Chief Justice. table. was simultaneously provided to Presi- The CHIEF JUSTICE. Thank you. First, Mr. Purpura said that security dent Zelensky’s office, but Andrii The House managers have 14 minutes assistance funds were not mentioned at Derkach, whom you will hear more remaining. all in the July 25 call between Presi- about later—a top aide to President

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00125 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.061 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S412 CONGRESSIONAL RECORD — SENATE January 21, 2020 Zelensky—reportedly directed her to when, as if, well, later, they are going ments, whether he might be willing to keep silent and not discuss the hold to say: Oh, yes, well, we are happy to enter into a unanimous consent agree- with reporters or Congress. have the witnesses now. It is just a ment to stack these votes. Now, we heard testimony about why question of when. The CHIEF JUSTICE. Without objec- the Ukrainians wanted to keep it se- OK. As my colleague said, let’s be tion, it is so ordered. cret that they knew about the hold. real. There will be no ‘‘when.’’ Do you The inquiry is permitted. You can imagine why Zelensky didn’t think they are going to have an epiph- Mr. SCHUMER. Thank you, Mr. Chief want his own people to know that the any a few days from now and say: OK, Justice. President of the United States was we are ready for witnesses? No. No, The bottom line is very simple. holding back aid from him. What does their goal is to get you to say no now, As has been clear to every Senator that look like for a new President of to get you to have the trial, and then and the country, we believe witnesses Ukraine who is trying to make the case argue to ‘‘make it go away.’’ Let’s dis- and documents are extremely impor- that he is going to be able to defend his miss the whole thing. tant and that a compelling case has own country because he has such a That is the plan. A vote to delay is a been made for them. We will have votes great relationship with the great pa- vote to deny. Let’s make no mistake on all of those. tron, the United States? He didn’t want about that. They are not going to have Also, the leader, without consulting the Ukrainians to know about it. But an epiphany a few days from now and us, made a number of significant do you know? Even more than that, he suddenly say: OK, the American people changes that significantly deviated didn’t want the Russians to know do deserve the answers. Their whole from the 1999 Clinton resolution. We about it for the reasons we talked goal is that you will never get to that want to change those, so there will be about earlier. So, yes, the Ukrainians point. You will never get to that point. a good number of votes. We are willing kept it close to the vest. When they say when, they mean never. to do some of those votes tomorrow. Mr. Purpura also went on to say: I yield back. There is no reason we have to do them Well, the Ukrainians say they don’t The CHIEF JUSTICE. The majority all tonight and inconvenience the Sen- feel any pressure. leader is recognized. ate and the Chief Justice, but we will That is what they say now. Of course, MOTION TO TABLE not back off on getting votes on all of we know that it is not true. Mr. MCCONNELL. Mr. Chief Justice, these amendments, which we regard as We have had testimony that they I make a motion to table the amend- extremely significant and important to didn’t want to be used as a political ment, and I ask for the yeas and nays. the country. pawn in U.S. domestic politics. They The CHIEF JUSTICE. Is there a suffi- The CHIEF JUSTICE. The majority resisted it. You will hear more testi- cient second? leader is recognized. mony about that, about the efforts to There appears to be a sufficient sec- Mr. MCCONNELL. Mr. Chief Justice, push back on this public statement— ond. as I have said repeatedly, all of these how they tried to water it down and The clerk will call the roll. amendments under the resolution how they tried to leave out the spe- The senior assistant legislative clerk could be dealt with at the appropriate cifics of how Giuliani, at the Presi- called the roll. time. dent’s behest, forced them: You know, The result was announced—yeas 53, I suggest the absence of a quorum. no, this isn’t going to be credible if you nays 47, as follows: The CHIEF JUSTICE. The clerk will don’t add in Burisma and if you don’t [Rollcall Vote No. 18] call the roll. add in 2016. YEAS—53 The senior assistant legislative clerk You will hear about the pressure. Alexander Fischer Perdue proceeded to call the roll. They felt it. So why isn’t President Barrasso Gardner Portman Mr. MCCONNELL. Mr. Chief Justice, Zelensky now saying he was pressured? Blackburn Graham Risch I ask unanimous consent that the order Blunt Grassley Roberts for the quorum call be rescinded. Well, can you imagine the impact of Boozman Hawley Romney The CHIEF JUSTICE. Without objec- that? Can you imagine the impact if Braun Hoeven Rounds President Zelensky were to acknowl- Burr Hyde-Smith Rubio tion, it is so ordered. edge today: Hell, yes, we felt pressured. Capito Inhofe Sasse Mr. SCHUMER. Mr. Chief Justice. Cassidy Johnson Scott (FL) The CHIEF JUSTICE. The Demo- You would, too. We are at war with Collins Kennedy Scott (SC) Russia for crying out loud. Yes, we felt Cornyn Lankford cratic leader is recognized. Shelby Cotton Lee AMENDMENT NO. 1288 pressured. We needed those hundreds of Sullivan Cramer Loeffler Mr. SCHUMER. Mr. Chief Justice, I millions in military aid. Do you think Crapo McConnell Thune I am going to say that now? I still Cruz McSally Tillis send an amendment to the desk to sub- can’t get in the White House door. Daines Moran Toomey poena certain documents and records They let Lavrov in, the Russian For- Enzi Murkowski Wicker from the Department of Defense, and I Ernst Paul Young eign Minister. They let him in, but I ask that it be read. can’t even get in the White House door. NAYS—47 The CHIEF JUSTICE. The clerk will Do you think I am going to go out now Baldwin Hassan Rosen read the document. and admit to this scheme? Bennet Heinrich Sanders The senior assistant legislative clerk Blumenthal Hirono Schatz read as follows: I mean, anyone who has watched this Booker Jones Schumer President in the last 3 years knows how Brown Kaine Shaheen The Senator from New York [Mr. SCHUMER] vindictive he can be. Do you think it Cantwell King Sinema proposes an amendment numbered 1288. would be smart for the President of Cardin Klobuchar Smith At the appropriate place in the resolving Carper Leahy Stabenow Ukraine to contradict the President of Casey Manchin clause, insert the following: Tester Coons Markey SEC. lll. Notwithstanding any other the United States so directly on an Udall Cortez Masto Menendez provision of this resolution, pursuant to issue he is being impeached for? That Van Hollen Duckworth Merkley rules V and VI of the Rules of Procedure and Warner would be the worst form of malpractice Durbin Murphy Practice in the Senate When Sitting on Im- for the new President of Ukraine. We Feinstein Murray Warren Whitehouse peachment Trials— shouldn’t be surprised he would deny Gillibrand Peters (1) the Chief Justice of the United States, Harris Reed Wyden it. We should be surprised if he were to through the Secretary of the Senate, shall admit it. The motion to table is agreed to; the issue a subpoena to the Secretary of Defense Let me just end with a couple of ob- amendment is tabled. commanding him to produce, for the time servations about Mr. Cipollone’s com- The CHIEF JUSTICE. The majority period from January 1, 2019, to the present, ments. leader is recognized. all documents, communications, and other records within the possession, custody, or He says: This is no big deal. We are UNANIMOUS CONSENT REQUEST control of the Department of Defense, refer- not talking about when we are going to Mr. MCCONNELL. Mr. Chief Justice, ring or relating to— have witnesses—or if we are going to I ask unanimous consent to ask the (A) the actual or potential suspension, have witnesses. We are just talking Democratic leader, as there are certain withholding, delaying, freezing, or releasing about when. We are just talking about similarities to all of these amend- of United States foreign assistance, military

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00126 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.063 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S413 assistance, or security assistance of any kind Mr. Manager SCHIFF. We are a pro- for the President didn’t say is that all to Ukraine, including but not limited to the ponent. of their aid has not made it there. Con- Ukraine Security Assistance Initiative The CHIEF JUSTICE. Mr. Cipollone? gress had to pass another law so that (USAI) and Foreign Military Financing Mr. Counsel CIPOLLONE. Mr. Chief $35.2 million of that aid wouldn’t expire (FMF), including but not limited to— Justice, we are an opponent. (i) communications among or between offi- and lapse. We did, but to this day, $18.5 The CHIEF JUSTICE. Mr. SCHIFF, cials at the Department of Defense, White million of that money remains out- House, Office of Management and Budget, the House managers can proceed first standing and hasn’t made its way to Department of State, or Office of the Vice and reserve their time for rebuttal. the battlefield. President; Mr. Manager CROW. Mr. Chief Jus- It was DOD that repeatedly advised (ii) documents, communications, notes, or tice, the House managers will be re- the White House and OMB of the im- other records created, sent, or received by serving the balance of our time to re- portance of security assistance not Secretary Mark Esper, Deputy Secretary spond to the argument of the counsel only to Ukraine but also U.S. national David Norquist, Undersecretary of Defense for the President. security. It was DOD in August of 2019 Elaine McCusker, and Deputy Assistant Sec- Mr. Chief Justice, Senators, counsel that warned OMB that the freeze was retary of Defense Laura Cooper, or Mr. Eric for the President, and the American Chewning; unlawful and that the funds could be (iii) draft or final letters from Deputy Sec- people, I would like to begin by getting lost as a result. It was DOD that retary David Norquist to the Office of Man- something off of my chest, something scrambled, after the hold was lifted agement and Budget; and that has been bothering me for a little without explanation on September 11, (iv) unredacted copies of all documents re- while. to spend the funds before they expired leased in response to the September 25, 2019, Counsel for the President and some at the end of the month. Freedom of Information Act request by the other folks in this room have been Without a doubt, DOD has key docu- Center for Public Integrity (tracking number talking a lot about how late it is get- ments that the President has refused 19-F-1934); ting, how long this debate is taking. It to turn over to Congress—key docu- (B) the Ukrainian government’s knowledge is almost 10 p.m. in Washington, DC. prior to August 28, 2019, of any actual or po- ments that go to the heart of the ways tential suspension, withholding, delaying, They say: Let’s get the show on the in which the President abused his freezing, or releasing of United States for- road. Let’s get moving. power. It is time to subpoena those eign assistance, military assistance, or secu- The whole time, the only thing I can documents. rity assistance to Ukraine, including but not think about is how late it is in other DOD documents would provide in- limited to all meetings, calls, or other en- places because right now, it is the mid- sight into critical aspects of this hold. gagements with Ukrainian officials regard- dle of the night in Europe, where we They would show the decisionmaking ing potential or actual suspensions, holds, or have over 60,000 U.S. troops. There are process and motivations behind Presi- delays in United States assistance to helicopter pilots flying training mis- dent Trump’s freeze. They would reveal Ukraine, including but not limited to— sions, tankers maneuvering across (i) communications received from the De- the concerns expressed by DOD and partment of State concerning the Ukrainian fields, infantrymen walking with 100- OMB officials that the hold was vio- Embassy’s inquiries about United States for- pound packs, and, yes, Ukrainian sol- lating the law. They would reveal our eign assistance, military assistance, and se- diers getting ready to wake up in their defense officials’ grave concerns about curity assistance to Ukraine; and trenches facing off against Russian the impact of the freeze on Ukraine (ii) communications received directly from tanks rights now. I don’t think any of and U.S. national security. They would the Ukrainian Embassy about United States those folks want to hear us talk about show that senior Defense Department foreign assistance, military assistance, and how tired we are or how late it is. We officials repeatedly attempted to con- security assistance to Ukraine; have time to have this debate. (C) communications, opinions, advice, vince President Trump to release the That is why the House managers aid. In short, they would further estab- counsel, approvals, or concurrences provided strongly support this amendment to by the Department of Defense, Office of Man- lish the President’s scheme to use our agement and Budget, or the White House, on subpoena key documents from the De- national defense funds to benefit his the legality of any suspension, withholding, partment of Defense, because just like personal political campaign. delaying, freezing, or releasing of United the subpoena for OMB, these docu- We are not speculating about the ex- States foreign assistance, military assist- ments from DOD speak directly to one istence of these documents, and we are ance, and security assistance to Ukraine; of President Trump’s abuses—his with- not guessing about what they might (D) planned or actual meetings with Presi- holding of critical military aid from show because during the course of the dent Trump related to United States foreign our partner Ukraine to further his per- investigation in the House, witnesses assistance, military assistance, or security sonal political campaign. who testified before the committees assistance to Ukraine, including but not lim- In fact, $250 million of taxpayer-fund- ited to any talking points and notes for Sec- identified multiple documents directly retary Mark Esper’s planned or actual meet- ed military aid for Ukraine was man- relevant to the impeachment inquiry ings with President Trump on August 16, Au- aged by the Department of Defense as that DOD continues to withhold. We gust 19, or August 30, 2019; part of the Ukraine Security Assist- know these documents exist, and we (E) the decision announced on or about ance Initiative. These funds, approved know that the only reason we do not September 11, 2019, to release appropriated by 87 Senators in this very room, would have them is because the President foreign assistance, military assistance, and purchase additional training, equip- himself directed the Pentagon not to security assistance to Ukraine, including but ment, and advising to strengthen the produce them because he knows what not limited to any notes, memoranda, docu- capacity of Ukraine’s Armed Forces. mentation or correspondence related to the they would show. decision; and The equipment approved for Ukraine To demonstrate the significance of (F) all meetings and calls between Presi- included sniper rifles, rocket-propelled the DOD documents and the value they dent Trump and the President of Ukraine, grenade launchers, counter-artillery would provide in this trial, I would like including but not limited to documents, radar, night vision goggles, and med- to walk you through some of what we communications, and other records related ical supplies. This equipment was to be know exists but that the Trump admin- to the scheduling of, preparation for, and fol- purchased almost exclusively from istration continues to refuse to turn low-up from the President’s April 21 and American businesses. This equipment, over. Again, based on what is known July 25, 2019 telephone calls, as well as the along with the training and advising from the testimony and the few docu- President’s September 25, 2019 meeting with the President of Ukraine in New York; and provided by DOD, was intended to pro- ments that have been obtained from (2) the Sergeant at Arms is authorized to tect our national security by helping public reporting and lawsuits, it is utilize the services of the Deputy Sergeant our friend Ukraine fight against Vladi- clear that the President is trying to at Arms or any other employee of the Senate mir Putin’s Russia. hide this evidence because he is afraid in serving the subpoena authorized to be Earlier, counsel for the President of what it would show the American issued by this section. tried to make the argument: Well, it people. The CHIEF JUSTICE. The amend- made it there. The aid eventually made We know that DOD has documents ment is arguable by the parties for 2 it there. The delay doesn’t really mat- that reveal that as early as June, the hours. ter. President was considering withholding Mr. Manager SCHIFF, are you a pro- You heard me talk about why the military aid for Ukraine. As I men- ponent or opponent? delay does matter, but what counsel tioned earlier, the President began

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00127 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.037 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S414 CONGRESSIONAL RECORD — SENATE January 21, 2020 questioning military aid to Ukraine in ments would also reveal key facts doing. They also underscore why the June of last year. The President’s ques- about what happened on July 25 after Senate must subpoena DOD documents tions came days after DOD issued a OMB directed DOD to ‘‘hold off’’ on to ensure that all of the relevant facts press release on June 18 announcing it any additional DOD obligations for the come to light, and, yes, there is more. would provide its $250 million portion assistance to Ukraine. How did DOD of- Based on the concerns expressed by of the aid to Ukraine. ficials react to OMB’s directive to keep McCusker and others at DOD, OMB According to public reporting, Dep- this order quiet? Did DOD officials eventually dropped from the docu- uty Under Secretary of Defense Elaine raise immediate concerns about the le- ments the statement that the hold McCusker, who manages the DOD’s gality of the hold—concerns that they would not preclude timely execution of budget, learned about the President’s would eventually vocally articulate to the funds. But OMB also circulated questions. We know this email exists OMB in August? Did DOD officials hear talking points claiming: ‘‘No action because in response to a Freedom of In- from the American businesses that has been taken by OMB that would pre- formation Act lawsuit, the Trump ad- were on tap to provide the equipment clude the obligation of these funds be- ministration was forced to release a re- for Ukraine? Was DOD informed that fore the end of the fiscal year.’’ dacted email. But DOD provided none the President’s hold would undermine Let me just explain what is going on of those documents to the House. American jobs? Answers to those ques- here. Everybody is getting worried. Ev- Deputy Assistant Secretary of De- tions may be found in DOD emails— erybody knows that something bad is fense Laura Cooper and her team were emails that we can all see if you issue about to happen. Nobody has a good ex- tasked by the Secretary of Defense the subpoena. planation, and nobody wants to be left with responding to the President’s Earlier, I mentioned that by late holding the bag. So they are sending questions about Ukraine assistance. July, officials in our government had the emails, and they are sending the Ms. Cooper testified that she put those raised significant concerns about the memos to say: I told you so, and I am answers in an email and described impact and the legality of President’s not going to be held responsible. DOD’s McCusker took issue with those emails during her deposition. She Trump’s hold on the military aid. We OMB’s talking point. She did so in testified that DOD advised that the se- know this from witness testimony, writing. Ms. McCusker emailed Mr. curity assistance was crucial for both public reporting, and documents pro- Duffey to tell him that OMB’s talking Ukraine and U.S. national security and duced in the Freedom of Information points were ‘‘just not accurate’’ and had strong bipartisan support in Con- Act lawsuits. For example, at an inter- that DOD had been consistently congress. But DOD provided none of those agency meeting on July 31, Laura Coo- veying that point for weeks. Again, we documents to the House. per, one of the officials at DOD, an- know this from a press report—not With this proposed amendment, the nounced that because there were two from documents produced to Congress Senate has an opportunity to obtain legally available options to continue and review the full record that can fur- by the Trump administration. the hold and they did not have direc- Now, President Trump did release ther demonstrate how and why the tion to pursue either of those legal op- some documents in response to a law- President was holding the aid. tions, DOD would have to start spend- Laura Cooper also testified about the suit under the Freedom of Information ing the funds on August 6. Cooper ex- Act, but here is what Ms. McCusker’s interagency meetings that occurred in plained that if they did not start email looked like when it was released late 2019—the meetings at which DOD spending the funds, they would risk by the Trump administration. was shocked to learn that President violating the Impoundment Control Her concern that OMB’s talking Trump had placed a mysterious hold on Act. It was a fateful warning because point was ‘‘just not accurate’’ was, the security assistance. We know what that is exactly what happened. again, entirely blacked out. What else happened at several of those meetings Throughout August, Pentagon offi- is being hidden from the American peo- because Ms. Cooper participated in cials grew increasingly concerned as ple? The Senate should issue the sub- them, in some cases with other senior the hold dragged on. According to pub- poena. Defense Department officials. However, lic reporting, DOD wrote to OMB on DOD documents would also shed light we don’t have Laura Cooper’s notes August 9 to say that it could no longer on OMB’s actions as the President’s from those meetings. We don’t have the claim the delay would have no effect on scheme unraveled. On September 9, Ms. emails she sent to senior DOD officials the Defense Department’s ability to McCusker informed Duffey that DOD reporting the stunning news about the spend the funds. We only know this could fall short of spending $120 million President’s hold. We don’t have the through recent reporting about the or more because of the hold. Duffey re- emails that show the response from the contents of the email. sponded by suggesting that it would be Secretary of Defense and other senior President Trump certainly hasn’t DOD’s fault if they ended up violating defense officials because DOD has re- made this information public. In re- the Impoundment Control Act. fused to provide them. sponse to a Freedom of Information McCusker responded: ‘‘You can’t be Separately, Laura Cooper testified Act request, the Trump administration serious. I am speechless.’’ about when the Ukraine first learned of released this August 9 email from It will come as no surprise, then, the President’s secret hold on the mili- Elaine McCusker, the Pentagon’s chief that the administration entirely retary assistance. The same day as the budget officer. As you can see from the dacted this email, too, when it pro- President’s July 25 call with President slide in front of you, it is almost en- duced the documents in connection Zelensky, DOD officials received two tirely blacked out. with the Freedom of Information Act emails from the State Department in- According to public reporting, the lawsuit. Thanks to public reporting, dicating that officials from the Ukrain- email said: though, we do know its contents, but ian Embassy and congressional staff As we discussed, as of 12 AUG, we don’t what else is being hidden from the had become aware of the hold and were think we can agree that the pause ‘‘will not American people? What other reactions starting to ask questions. preclude timely execution.’’ We hope it won’t did this exchange set off within DOD? Ms. Cooper testified that she was in- and will do all we can to execute once the And were those concerns brought back formed that ‘‘the Ukrainian embassy policy decision is made, but can no longer to the White House? and House Foreign Affairs Committee make that declarative statement. The Department of Defense’s docu- are asking about the military aid’’ and Let me interpret what is actually ments would shed light on these ques- that ‘‘The Hill’’ knows about the FMS being said here. What is actually being tions. The American people deserve an- situation to an extent, and so does the said is: We are in trouble. We can’t swers. Ukrainian Embassy. All of this shows spend the money in the time that we Make no mistake, the record before that people were starting to get very have left, and we are not going to cover the House fully supports the conclusion worried. your tracks anymore and say that we that President Trump froze vital mili- Again, this amendment for a sub- can. The extensive redactions in the tary aid to pressure Ukraine into help- poena to DOD would compel the pro- Freedom of Information Act producing the President’s political campaign. duction of these important documents, tions highlight the administration’s ef- The DOD documents would provide fur- but, again, there is more. DOD docu- forts to conceal the President’s wrong- ther evidence of this scheme. They

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00128 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.068 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S415 would expose the full extent of the in this room can fix it. It is time to in their proceeding to get these docu- truth to Congress and the American issue the subpoenas. ments? They issued one invalid sub- people and would firmly rebut any no- Mr. Chief Justice, the House man- poena totally unauthorized under the tion that President Trump was acting agers reserve the balance of our time Constitution. It was unprecedented be- based on concerns about corruption or for an opportunity to respond to the cause it was issued in an impeachment other countries’ contributions, and the President’s argument. inquiry reportedly without any vote President knows it. If there was any The CHIEF JUSTICE. Mr. Cipollone? from the House. It had never happened doubt, recent events prove that DOD Mr. Counsel CIPOLLONE. Mr. Chief before in our history in a Presidential has documents that are directly rel- Justice, Mr. Philbin will address the impeachment. It was unlawful. It was evant to this trial. argument. unauthorized. That is why no docu- As I spoke about earlier, before I was The CHIEF JUSTICE. Mr. Philbin. ments were produced, and they made Mr. Counsel PHILBIN. Mr. Chief Jus- a Member of Congress, I was a soldier no other efforts to pursue that. tice, Members of the Senate, I will be in Iraq and Afghanistan. I do know We have heard a lot about the rule of brief. This may seem like some deja vu what it feels like to not have the equip- law. The rule of law applies to House all over again because we have been ar- ment that you need. The men and Democrats, as well, and they didn’t guing about the same issues, really, women who work at the Department of abide by it. It was unprecedented to over and over and over for a long time. Defense and administer this vital aid have a process in which the President I think something that Americans understand that reality too. That is had no opportunity to present his de- why they repeatedly made the case to don’t really understand about Wash- ington is how could the House Demo- fense, no opportunity to present wit- President Trump that military assist- nesses, no opportunity to be rep- ance to Ukraine is important and that crats think that it is the best use of time for this body to spend an entire resented by counsel, and no oppor- it would not only help Ukraine but also tunity to present evidence whatsoever bolster our deterrence against further day deciding simply the issue of when this body should decide about whether in three rounds of hearings. Russian aggression in Europe. Every They will mention: Oh, in the Judici- time we have these discussions, that or not there should be witnesses and documents subpoenaed? That is the ary Committee, they were willing to might seem abstract to people around issue before the body now. It is not the give the President rights. But in the the country. I do think about those question, finally, of whether there Judiciary Committee, after one hear- 60,000 U.S. troops we have in Europe, should be witnesses or documents. ing, the Speaker announced the conclu- many of whom, by the way, are sta- As the majority leader has made sion that articles were going to be tioned there with their families, their clear multiple times, the underlying drafted and the committee had already spouses, their children, and how they resolution simply allows that issue to decided it would hear no fact witnesses. are training and working every day to be addressed a week from now. The There were no rights for the President. hold the line and fight for freedom and only question at issue now—and the So it makes sense, what is rational— liberty in Europe. And if the war in House managers keep saying: How can what 100 Senators 21 years ago thought Ukraine spills over outside of Ukraine, you have a trial without witnesses? was rational was to hear the case that it is those men and women who will How can you have a trial without docu- can be presented on the record estab- have to get into their tanks and their ments? That is not even the issue. The lished so far and then decide if some- helicopters and do their job. only issue now is whether you have to thing else needs to be done. Let the The United States Senate cannot let decide that issue to subpoena docu- President make his case. We are ready this information remain hidden. It goes ments or witnesses now or decide it in to get this started. The House man- directly to one of President Trump’s a week after you hear the presen- agers should be as well. abuses of power—again, withholding tations. Why are they so eager to have Mr. Counsel CIPOLLONE. Mr. Chief aid that 87 people in this room already you buy a pig in a poke? Why is it nec- Justice, we yield the balance of our voted for. The President, the Senate, essary to make that decision without time. and the American people deserve a fair having more information? The CHIEF JUSTICE. The House trial. Let’s see the documents and let’s In the Clinton trial, this body agreed managers have 38 minutes remaining. see them now and let the facts speak 100 to 0 that it made more sense to Mr. Manager CROW. Mr. Chief Jus- for themselves. have more information and then decide tice, I will be brief. I would like to end by reading a short how to proceed and that it was rational Counsel for the President continues transcript, something that I was think- to have more information to hear the to say a lot of things that just really ing about earlier this evening. This is a presentations and then decide what rubs me the wrong way. When he says: transcript from Ambassador Taylor’s more was necessary. Why is it so im- You know, we are talking and saying testimony. I just want to take a portant that you have to make that de- the same argument over and over and minute to read it to you. He was talk- cision now without that information? over again, well, I am ready to keep ing about a trip that he made to visit That doesn’t make any sense. going because this is an important de- our friends in Ukraine. The rational thing to do is to hear bate, and we need to have it now. We had a meeting with the defense min- what sort of case they present and, im- He also said something about what ister. It was the first meeting of the day. We portantly, to hear the President’s de- the American people don’t understand went over there. They invited us to a cere- fense because the President had no op- about Washington. Well, I haven’t been mony that they have in front of their min- portunity in the House to present any here very long, but I can tell you that istry every day. Every day they have this I don’t think the American people care ceremony, and it is about a half-an-hour defense. ceremony where soldiers are in formation, We have heard a lot about the rule of very much about whether or not people the defense minister, and families of soldiers law and about precedent. What was un- in Washington are sitting around de- who have been killed are all there. The selec- precedented was the process that was bating all the time and thinking about tion of which soldiers who have been killed used in the House, a process that began what you are concerned about right are honored is on the date of it. with an impeachment inquiry that now. What they are concerned about is So whatever today’s date is, you started without any vote by the House. whether or not their government is know if we were there today, on the This is the point I made earlier. The working for them and whether or not 22nd of October, the families of those Constitution assigns the sole power of there is corruption in their govern- soldiers who were killed on any 22nd of impeachment to the House, not to any ment. That is what they understand, October in the previous 5 years would single Member of the House. So the and that is what this debate is about. be there. press conference that Speaker PELOSI Counsel for the President said: Why Ambassador Taylor was talking held on September 24 did not validly now? Why the information now? about our friends. At least 13,000 of initiate an impeachment inquiry, nor The better question is: Why not now? them have given their lives in the last did it validly give power to committees This trial has started. Let’s have the 5 years in the fight for liberty in Eu- to issue subpoenas. facts and information now. rope. This, ladies and gentleman, is a We are talking now about the DOD Ladies and gentlemen, the time is national disgrace, and only the people documents. What efforts did they make right. There is no reason why we

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00129 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.069 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S416 CONGRESSIONAL RECORD — SENATE January 21, 2020 shouldn’t issue those subpoenas, get basis for redaction under the Freedom There is a sufficient second. the facts, get the testimony, have the of Information Act. That is what we The clerk will call the roll. debate, and let the American people see call a coverup. The senior assistant legislative clerk what is really going on. They don’t want you to see that called the roll. Mr. Chief Justice, I yield the balance today. They don’t want you to see the The CHIEF JUSTICE. Are there any of my time to Mr. SCHIFF. before and the after, the redacted and Senators in the Chamber who wish to The CHIEF JUSTICE. Thank you. the nonredacted. They don’t want you change his or her vote? Mr. Manager SCHIFF. Senators, I to hear from these witnesses about the The result was announced—yeas 53, will be brief, but I do want to respond detailed personal notes they took. Am- nays 47, as follows: to a couple of points my colleagues bassador Taylor took detailed personal [Rollcall Vote No. 19] have made. notes. YEAS—53 First is the argument that you heard They want to try to contest what Alexander Fischer Perdue before—and I have no doubt you will Ambassador Sondland said about his Barrasso Gardner Portman hear again—that the subpoenas issued conversations with the President be- Blackburn Graham Risch Blunt Grassley by the House are invalid. Well, that is cause Sondland, after he talked with Roberts Boozman Hawley Romney really wonderful. I imagine when you the President, talked directly with Braun Hoeven Rounds issue subpoenas, they will declare Ambassador Taylor and talked directly Burr Hyde-Smith Rubio yours invalid as well. Capito Inhofe Sasse with Mr. Morrison and explained his Cassidy Johnson Scott (FL) What is the basis of the claim that conversation to the President. Guess Collins Kennedy Scott (SC) they are invalid? It is because they Cornyn Lankford what. Mr. Morrison and Ambassador Shelby weren’t issued the way the President Taylor took detailed notes. If there is a Cotton Lee Cramer Loeffler Sullivan wants. dispute about what the President told Crapo McConnell Thune Part of the argument is that you Mr. Sondland, wouldn’t you like to see Cruz McSally Tillis have to issue the subpoenas the way we the notes? They don’t want you to Daines Moran Toomey say, and that can only be done after Enzi Murkowski Wicker know the notes exist. Ernst Paul Young there is a resolution that we approve of They don’t want to have this debate. adopted by the full House. First, they They would rather just argue: No, it is NAYS—47 complained there was no resolution, no just about the documents. It is just Baldwin Hassan Rosen formal resolution of the impeachment Bennet Heinrich Sanders about when. We want the Senators to Blumenthal Hirono inquiry, and then when we passed the Schatz have their 16 hours of questions before Booker Jones Schumer formal resolution, they complained they can see any of this stuff. And do Brown Kaine Shaheen about that. They complained when we you know what? Then we are going to Cantwell King Sinema Cardin didn’t have one, and they complained move to dismiss the case. As I said ear- Klobuchar Smith Carper Leahy Stabenow when we did have one. lier, the ‘‘when’’ means never. Casey Manchin Tester Coons Markey They made that argument already in Finally, the Clinton precedent. Presi- Udall Cortez Masto Menendez court, and they lost. In the McGahn dent Clinton turned over 90,000 pages of Van Hollen Duckworth Merkley case, they similarly argued that this documents before the trial. I agree. Durbin Murphy Warner subpoena for Mr. McGahn is invalid. Do Let’s follow the Clinton precedent. It is Feinstein Murray Warren you know what the judge said? The not going to take 90,000 documents. Gillibrand Peters Whitehouse Wyden judge essentially said: That is non- The documents are already collected. Harris Reed sense. You heard the testimony on the The motion to table is agreed to; the The President doesn’t get to decide screen of Ambassador Taylor saying: amendment is tabled. how the House conducts an impeach- Oh, they are going to turn them over Mr. SCHUMER. Mr. Chief Justice. ment proceeding. The President doesn’t shortly. But we are still waiting. They The CHIEF JUSTICE. The Demo- get to decide whether a subpoena at are still sitting there at the State De- cratic leader is recognized. issue is valid or invalid. No, the House partment. AMENDMENT NO. 1289 gets to decide because the House is We even played a video for you of Mr. SCHUMER. Mr. Chief Justice, I given the sole power of impeachment, Secretary Esper on one of the Sunday send an amendment to the desk to not the President of the United States. shows saying, we are going to comply issue subpoenas to Robert B. Blair and Counsel says: Why are we going with these subpoenas. Michael P. Duffey, and I ask that it be through all of these documents? Aren’t That was one week. Then somebody read. all of these motions the same? The fact got to him and all of a sudden he was The CHIEF JUSTICE. The clerk will is, we are not talking about the same singing a different tune. report the amendment. documents here. They would like noth- They don’t want you to know what The senior assistant legislative clerk ing better than for you to know noth- these documents hold. And, yes, we are read as follows: ing about the documents we seek. They showing you what these witnesses can The Senator from New York [Mr. SCHUMER] don’t want you to know what Defense tell you. We are showing you what proposes an amendment numbered 1289. Department documents they are with- Mulvaney can tell you. And, yes, we At the appropriate place in the resolving holding. Of course, they don’t want you are making it hard for you. We are clause, insert the following: SEC. lll. Notwithstanding any other to hear that. They don’t want you to making it hard for you to say no. We provision of this resolution, pursuant to know what State Department docu- are making it hard for you to say: I rules V and VI of the Rules of Procedure and ments are there because if it is just ab- don’t want to hear from these people. I Practice in the Senate When Sitting on Im- stract, if it is just your argument for don’t want to see these documents. peachment Trials— documents, well, they can say: Well, We are making it hard. It is not our (1) the Chief Justice of the United States, that is really not that important, job to make it easy for you. It is our through the Secretary of the Senate, shall— right? It is just some generic thing. job to make it hard to deprive the (A) issue a subpoena for the taking of testi- But when you learn, as you have American people of a fair trial, and mony of Robert B. Blair; and learned today and tonight, what those that is why we are taking the time to (B) issue a subpoena for the taking of testimony of Michael P. Duffey; and documents are, when you have seen the do it. (2) the Sergeant at Arms is authorized to efforts to conceal those Freedom of In- I yield back. utilize the services of the Deputy Sergeant formation Act emails that my col- The CHIEF JUSTICE. The majority at Arms or any other employee of the Senate league Mr. CROW just referred to, and leader is recognized. in serving the subpoena authorized to be when you see what was released to the MOTION TO TABLE issued by this section. public, and it is all redacted, and we Mr. MCCONNELL. Mr. Chief Justice, The CHIEF JUSTICE. The amend- find out what is under those I make a motion to table the amendment is arguable by the parties for 2 redactions, wow, surprise. It is incrimi- ment, and I ask for the yeas and nays. hours, equally divided. nating information they have redacted The CHIEF JUSTICE. Is there a suffi- Mr. Manager SCHIFF, are you a pro- out. That is not supposed to be the cient second? ponent or opponent?

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00130 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.071 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S417 Mr. Manager SCHIFF. Mr. Chief Jus- tor, Russell Vought, and with numer- Mulvaney? between themselves? What tice, we are a proponent. ous officials of the State Department about the funding release and the The CHIEF JUSTICE. Mr. Cipollone? and the Department of Defense. They President’s so-called questions? Blair Mr. Counsel CIPOLLONE. Mr. Chief stood at the center of this tangled web. and Duffey could provide the answers. Justice, we are an opponent. Some of their communications are They could explain what directions The CHIEF JUSTICE. Mr. SCHIFF and known to us from the testimony of they received, when they were pro- the House managers will proceed and other witnesses before House commit- vided, and who provided them. The reserve time for rebuttal. tees. Other communications have been American people deserve to know these Ms. Manager GARCIA of Texas. Mr. revealed through public reporting and facts. Chief Justice, Senators, counsel for the the Freedom of Information Act re- The next significant event in our President, my name is SYLVIA GARCIA, leases. But these communications only timeline happened at the end of June. and I am a Congresswoman from Texas partly penetrate the secrecy in which On June 27, Blair got an email from his in the Houston region. President Trump sought to cloak his boss, Mulvaney. Mulvaney was on Air I have been sitting for some time, as instruction to freeze military aid to a Force One with President Trump. Ac- well as you, and it brought to mind the vulnerable strategic partner. As plenti- cording to public reports, Mulvaney many years I spent as a judge, just as ful evidence confirms, officials asked Blair: ‘‘Did we ever find out all of you today are judges in this hear- throughout the government were about the money for Ukraine and ing. stumped—literally stumped—about whether we can hold it back?’’ Blair re- It is important that I say a few words why the freeze was happening. They sponded it would be possible, but he before I start our argument for this were thwarted when they tried to get said they should ‘‘expect Congress to amendment because, in the scheme of explanations from Blair and Duffey. become unhinged.’’ things, it is really not that very com- Consistent with President Trump’s ef- When did Mulvaney and Blair first plicated. The American people, every- fort to hide all evidence, Blair and discuss the President’s freeze on mili- day Americans, know what a trial Duffey have defied the House’s sub- tary aid? Was there further discussion looks like, whether they have seen it poenas at the President’s direction. about the issue in this email? Did on ‘‘Perry Mason’’ or ‘‘Law & Order,’’ To explain why this amendment Mulvaney explain why it was so impor- or maybe they have been in court should be passed, I would like to walk tant to freeze the money, even if it themselves. They know what a trial is. you through some key events in which would cause Congress ‘‘becoming un- It is about making sure that people Blair and Duffey participated. hinged’’? Did they discuss why Con- have an opportunity to be heard—both To start, Blair and Duffey were di- gress would have such a strong reac- sides. It is about witnesses. It is about rectly involved in the initial stages of tion and whether it would be justified? documents. It is about getting a fair President Trump’s freeze of the mili- Did Blair raise any objections to this shot. tary aid. seemingly unexplained decision to That is all we are asking for today, is On June 18, the Department of De- freeze the funds? The Senate could ob- to make sure we give the American fense issued a statement that it would tain these answers by hearing from people the trial they expect, to make be providing its $250 million portion of these witnesses directly. sure the American people know that the assistance to Ukraine and that Now let’s move on to the implemen- this President needs to be held ac- Ukraine had met all the required pretation of the freeze. Despite Blair’s countable, because if it were they who conditions for receiving the money. warning about how Congress would were accused or alleged to have done The very next day, on June 19, Blair, in react, President Trump ordered a something, they would want the same his role as assistant to the President, freeze on military aid to Ukraine in thing. called Vought, the Acting Director of July. Blair and Duffey were directly in- So, for me, it is about making sure OMB. The call was to talk about the volved in executing the President’s we get a fair trial, which is why I am military aid to Ukraine. According to order. To be clear, decisions remain here representing the House managers public reports, Blair told Vought: ‘‘We shrouded in secrecy, but key actions to strongly support this amendment to need to hold it up.’’ have been revealed. subpoena Robert Blair and Michael That same day, Duffey, who reports On July 3, the State Department told Duffey. Blair and Duffey are the two to Vought, emailed Deputy Under Sec- various officials that OMB was block- officials who carried out President retary of Defense Elaine McCusker ing it from spending its $141 million Trump’s order to freeze vital military about the military aid. Although the portion of the aid. More specifically, aid to Ukraine. Their testimony would administration refused to produce that OMB directed the State Department shed light on central facts the House email to the House—and all other docu- not to send a notification to Congress uncovered in our impeachment inquiry. ments—a copy of that email was re- about spending the aid. Without that Their testimony will further affirm cently produced in response to a Free- notification, the aid was effectively that President Trump had no legiti- dom of Information Act lawsuit. In the frozen. mate policy reason for the order. email, Duffey informed DOD that ‘‘the Who from OMB ordered the State De- Blair works in the White House as a President has asked about this funding partment not to send its congressional senior adviser to the Acting Chief of release.’’ notification? Did they give a reason? Staff, Mick Mulvaney. Duffey is a po- Duffey copied Mark Sandy, a career We just don’t know. Remember, at litical appointee. He works in the Of- official who reports to him and who President Trump’s instruction, OMB fice of Management and Budget. There, testified before the House about this and the State Department refused to he serves as the Associate Director for email. Sandy testified that McCusker produce a single document to the National Security Programs. Both provided the requested information to House, but the direction almost cer- were subpoenaed by the House inves- him, which he shared with Duffey. tainly came from Duffey or one of his tigative committees. Both were or- These communications raised many subordinates, acting on behalf of Presi- dered not to appear, so both failed to questions about Blair and Duffey, and dent Trump. appear for the scheduled depositions they are in the best position to provide We also know that on July 12, Blair despite repeated outreach and despite answers. For example, who or what sent an email to Duffey. Duffey’s sub- their legal subpoenas to comply. prompted Blair to tell Vought that ordinate, Mark Sandy, saw the email Blair and Duffey are not household OMB needed to freeze the aid? Who? and described it in his testimony before names. Many Americans have never What reason was Blair given? Who in- the House. As Sandy testified, it was heard of them. But they operated the structed Duffey to reach out to the De- Blair who conveyed that ‘‘the Presi- machinery of the executive branch. partment of Defense? Who told him the dent is directing a hold on military They implemented President Trump’s President had questions, and what were support funding for Ukraine.’’ And that instruction to freeze military aid to those questions? Did Duffey and Blair email only addressed Ukraine. Ukraine. They communicated about have communications about the mili- Blair’s email raises several questions. the freeze with each other, with tary aid to Ukraine with the Presi- What other discussions took place Mulvaney, with OMB’s Acting Direc- dent? with Acting Chief of Staff Mick about the President’s decision to freeze

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00131 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.073 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S418 CONGRESSIONAL RECORD — SENATE January 21, 2020 the aid? Did the President or Mulvaney the trial, these facts contradict the Senators, the American people de- give Blair a reason for the freeze? Did White House’s recent claims of why serve to hear if Blair shared the con- Blair know that the President was President Trump froze the Ukraine aid. cerns of the other officials who listened holding the aid to pressure Ukraine to Those facts clearly show efforts by this to the President’s call. What was his announce investigations of his political President and those around him to fab- reaction to the call? Did he take notes? rival? ricate explanations after the Presi- Was he at all concerned like the other We also know that 2 days before Blair dent’s illegal scheme came to light. officials? Did he know exactly what sent his email to Duffey, Ambassador In fact, the White House Counsel’s was happening and why? Did the evi- Sondland told Ukrainian officials that own review of the freeze reportedly dence we have suggest he did know? he had a deal with Mulvaney. The deal found that Mulvaney and OMB at- But the Senate should have the oppor- consisted of a White House visit for tempted to create an after-the-fact jus- tunity to ask him directly. President Zelensky on Ukraine con- tification for the President’s decision. Just 90 minutes after that July 25 ducting the political investigations That is a polite way of saying call, Blair’s contact at OMB, Michael that President Trump sought. That is Mulvaney’s team led an effort to cover Duffey, sent officials of the Depart- what prompted Ambassador Bolton to up the President’s conduct and to man- ment of Defense an email to make sure say he was ‘‘not part of whatever drug ufacture misleading pretextual expla- that DOD continued to freeze the mili- deal Sondland and Mulvaney are cook- nations to hide the corruption. tary aid that Ukraine so desperately ing up.’’ Senators, there is still more. Blair needed. This email, like all others, was Blair is Mulvaney’s senior adviser. and Duffey were also involved in the not produced to the House. However, it Did Blair know about the Sondland/ events surrounding President’s July 25 was produced pursuant to court order Mulvaney deal? Did he know that they phone call with President Zelensky. On in a Freedom of Information Act law- were leveraging an official White July 19, Blair, along with other offi- suit. House visit for the President to get cials, received an email from Ambas- As the email reflects, Duffey told the Ukraine to investigate his political sador Sondland. The email described a DOD officials that based on the guid- rival? The White House was unable to conversation he had just had with ance he had received, they should provide any reason for the hold. President Zelensky. Ambassador ‘‘hold off any additional DOD obliga- Throughout this period, officials Sondland stated that Zelensky was tions of these funds.’’ across the executive branch started ‘‘prepared to receive POTUS’ call,’’ and Duffey added that the request was asking questions—questions about the ‘‘will assure him that he intends to run sensitive and that they should keep freeze on the military aid. Around July a fully transparent investigation’’ and this information closely held. This 17 or 18, Duffey emailed Blair. He asked will ‘‘turn over every stone.’’ email, too, raises questions that Duffey about the reason for the freeze, but he As reflected in this email and con- should answer. What exactly was the got no explanation. Instead, Blair in- firmed by his testimony, Ambassador guidance Duffey received? Who gave it sisted: We need to let the hold take Sondland had helped President to him? Was it connected to President place and they could revisit the issue Zelensky prepare for his July 25 phone Trump’s phone call? And why was it so with the President later. call with President Trump, telling him sensitive that he directed DOD to keep In the House, we heard testimony it was necessary to assure President it closely held? The Senate should de- from multiple officials, including Am- Trump that he would conduct the in- mand the answers to these questions. bassador Taylor, who was until very re- vestigations. Ambassador Sondland The Senate should also hear from cently our top diplomat in Ukraine, then reported back to Blair and others Duffey as to why he abruptly removed our numero uno. We also heard from that President Zelensky was prepared a career OMB official who questioned several other officials from the Depart- to do just that. the freeze on military aid to Ukraine ment of Defense, the NSC staff, and Blair knew the plan. As Ambassador and whether he did so at the direction OMB, but no one—no one—heard any Sondland put it, he was in the loop on of the White House or President credible evidence, any credible expla- the scheme. Trump. Throughout July, Mark Sandy, nation for the freeze at the time. No Why was Blair part of this group? the OMB career official who handled one. Nada. Senators, think about it. What was his involvement in setting up military aid to Ukraine, repeatedly Not even our top U.S. diplomat to the call? What did he understand tried to get Duffey to provide an expla- Ukraine had any idea as to why the Sondland’s message to mean? What did nation for the freeze. He was unsuc- President had ordered the funds frozen. he know about the investigations cessful. That is shocking. That should worry sought by the President? Did he have Sandy and other officials from OMB every single one of us here. any conversations with the President and the Pentagon also raised questions Here are some of those witnesses. or Mulvaney about the President’s re- about the freeze violating the Em- They are up on the slide. Again, no one quest for the investigations? We need powerment Control Act, the Federal tells why—why this decision was made Blair’s testimony to answer these ques- law that limits the President’s ability so secretly and without any expla- tions. to withhold funds that have been allo- nation. Why was the President compro- And then, 6 days later, Blair was in cated by Congress. mising the safety of his strategic ally the Situation Room, listening in—lis- In fact, two career OMB officials ulti- in the region? Why was he harming our tening in—on President Trump’s July mately resigned, in part, based on con- national security interests in the proc- 25 call with President Zelensky. He cerns about the handling of the ess? heard President Zelensky raise the Ukraine military aid freeze. These con- On July 26, Duffey attended a meet- issue of U.S. aid to Ukraine. He heard cerns were not unfounded. ing of high-level executive branch offi- President Trump respond but asked Just last week, the nonpartisan Gov- cials. Duffey made clear that the freeze him for ‘‘a favor, though’’—namely, in- ernment Accountability Office issued a on military aid was based on President vestigations of the 2016 election and of detailed legal opinion finding that Trump’s express direction. Vice President Biden. OMB had violated Federal law by exe- But, apparently, he could not clearly The House heard the testimony of cuting the President’s order to freeze explain whether it was a freeze beyond three of the other officials who listened military aid to Ukraine. Remarkably, a vague reference to concerns about into the President’s July 25 call—di- on July 29, after Sandy had expressed corruption. rectly listened in. Lieutenant Colonel his concerns about the legality of the Witnesses who testified before the Vindman, Tim Morrison, and Jennifer freeze, Duffey removed Sandy from re- House all provided the same consistent Williams—each of them expressed con- sponsibility for Ukraine military aid. recounting of what happened. As you cerns about the call. Lieutenant Colo- Instead, Duffey took over responsi- can see from the statements on the nel Vindman and Tim Morrison imme- bility for withholding the aid himself. slide, officials were not provided a diately reported the call to NSC law- He was a political appointee. He had no clear explanation for such a dramatic yers. Jennifer Williams said the call relevant experience. He had no dem- step. ‘‘struck her as unusual and inappro- onstration of interest in such matters. As we have already discussed earlier priate,’’ and further, ‘‘more political in His last job had been as a State-level and will explain in more depth during nature.’’ Republican Party official.

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00132 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.075 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S419 He is the one who took over responsi- expressed reservations about it. In Au- least, not break the law. Blair and bility for withholding the aid? He gave gust, he signed off on a memorandum Duffey would help shed more light on no credible explanation for his deci- to Acting Director Vought that rec- how the President’s orders were carried sion. He only said that he wanted to ommended releasing the aid. That out. That is why committees of the become ‘‘more involved in daily oper- memo stated that the military aid was House issued subpoenas for both of ations.’’ consistent with the United States’ na- their testimony, but Blair and Duffey, Sandy, who has decades of experi- tional security strategy in the region, as I said earlier, like many other ence, testified that nothing like this that it served to counter Russian ag- Trump officials, refused to appear be- had ever happened in his career. His gression, and that the aid was rooted in cause the President ordered them not boss, a political appointee, just hap- bipartisan support in Congress. This is to appear. I might add, as a former pened to have a sudden interest in contrary to Duffey’s actions leading up judge, I have never seen anything like being more hands-on and was now to the memo. What changed? What this before, where someone is ordered laser-focused exclusively on Ukraine. caused Duffey to disagree with the not to appear by one party and the wit- The Senate should ask Duffey why he President’s direction to continue to nesses just don’t appear. took over the handling of the Ukraine withhold the aid? Duffey should be The Senate should not allow the military aid. Was he directed to? Why called to explain why he recommended President and his administration to was Sandy removed from his responsi- that the President release the aid, continue to evade accountability based bility over Ukraine aid? Was it because what other steps he took to advocate on these ever-shifting and ever- he expressed concerns about the legal- for the release. Does he know why meritless excuses. We need to hold him ity of the freeze? Vought and the White House appar- accountable because no one is above These questions are those that ently disregarded the recommenda- the law. Duffey would be able to answer. tion? (English translation of statement Now we move on to warnings from Based on public reporting, we know, made in Spanish is as follows:) DOD. Around this period, in late July after the press reported the freeze in No one is above the law. and early August, Duffey also ignored late August, OMB circulated talking Blair and Duffey have valuable testi- warnings from DOD about the legality points falsely claiming ‘‘no action has mony to offer. The Senate should call of the freeze. The Senate should hear been taken by OMB that would pre- upon them to do their duty by issuing from him and judge what he has to say. clude the obligation of these funds be- this subpoena. Throughout July and August, Duffey fore the end of the fiscal year.’’ Mr. Chief Justice, the House man- executed President Trump’s freeze of According to public reporting, agers reserve the balance of our time the military aid through a series of McCusker responded with an email to for an opportunity to respond to the funding documents from OMB. Duffey to tell him that this was ‘‘just President’s argument. In carefully worded footnotes, OMB not accurate’’ and that DOD had been The CHIEF JUSTICE. Mr. Cipollone. tried to claim that this ‘‘was a brief ‘‘consistently conveying’’ that for Mr. Counsel CIPOLLONE. Mr. Chief pause and it would not affect DOD’s weeks. Due to the public release of Justice, Pam Bondi, Special Advisor to ability to spend the money on time.’’ these emails and recent reporting, we the President, former attorney general As we now know from public report- also know that Duffey emailed of Florida. ing, as a freeze continued, DOD offi- McCusker on August 30 and told her The CHIEF JUSTICE. Ms. Bondi. cials grew more and more alarmed. there was a ‘‘clear direction from Ms. Counsel BONDI. Honorable Sen- They knew the freeze would impact POTUS’’ to continue the freeze. ators, just to fact-correct, please, a few DOD’s ability to spend the funds before McCusker continued to warn that the things. Mr. Duffey didn’t come from a the end of the fiscal year. DOD offi- freeze was having real effects on DOD’s State job. Mr. Duffey came from Dep- cials, including Deputy Under Sec- ability to spend the military aid, and uty Chief of Staff at DOD before he retary McCusker, voiced these con- the impact would keep growing if the went to OMB. There is a big difference cerns to Duffey on multiple occasions. freeze continued. According to recent there. First, in an email on August 9, reports, around September 9, after the Manager Garcia said he failed to ap- McCusker told Duffey DOD could no President’s scheme had been exposed pear. Well, the House committee would longer support OMB’s claim that the and the House had launched its inves- not allow agency counsel to appear freeze would not preclude timely exe- tigations, Duffey responded to with Mr. Duffey or Mr. Blair. They cution of the aid for Ukraine. Her McCusker’s warnings with a formal and would not let agency counsel appear email read: lengthy email. He asserted it would be with either of them. As we discussed, as of 12 August, I don’t DOD’s fault, not OMB’s, if DOD was un- Office of Legal Counsel determined, think we can agree that the pause will not able to spend funds in time. Deputy of course, that the exclusion of agency preclude timely execution. We hope it won’t, Under Secretary of Defense Elaine counsel from House proceedings is un- and we will do all we can to execute once the McCusker reportedly responded: ‘‘I am constitutional. It is a pretty basic policy decision is made but can no longer speechless.’’ right. So what did they do? They took make that declarative statement. We now know that DOD’s concerns no action on the subpoenas, but now Then, again, on August 12, McCusker were well-founded. The President’s they want you to take action on them. warned Duffey in an email: The foot- freeze on the security aid was illegal. What the House managers have been notes needed to include a caveat that Duffey should be called to testify about telling you all day is that the White ‘‘execution risk increases continued why DOD’s repeated warnings went House is trying to hide from American delays.’’ unheeded. What prompted his email people what witnesses had to say. They The House never received these docu- that attempted to shift blame to DOD have been saying we want to bury evi- ments from OMB or DOD. We know about the fact that the President re- dence; we want to hide evidence. That what they contain because of public released the aid only after his scheme hypocrisy is astounding. They have porting, despite persistent efforts by was exposed? been saying: Let’s not forget why we the Trump administration to keep Senators, make no mistake. We have are here. them from Congress and the public. a detailed factual record showing the Well, we are here tonight because The Pentagon’s alarm should have freeze was President Trump’s decision they threw due process, fundamental raised concerns for Duffey. Did he and that he did it to pressure Ukraine fairness, and our Constitution out the share DOD’s concerns with anyone to announce the political investiga- window in the House proceedings. That else? Did he agree with those concerns tions he wanted. is why we are here—because they start- or take any actions in response? Did he But President Trump’s decisions also ed in the secret bunker hearings where take direction from Blair, the White set off a cascade of confusion and mis- the President and his counsel weren’t House, or President Trump? These are direction within the executive branch. even allowed to participate when they questions that Duffey should answer. As the President’s political appointees were trying to impeach him. Despite his actions executing the carried out his orders, career officials Intel and Judiciary Committee was a President’s freeze, Duffey internally tried to do their jobs—or, at the very one-sided circus. Ranking Member

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00133 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.076 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S420 CONGRESSIONAL RECORD — SENATE January 21, 2020 NUNES asked to call witnesses. He ex- By the way, those agency minders Cramer Johnson Romney plained why in detail. It was denied by don’t get to sit in on grand jury inter- Crapo Kennedy Rounds Cruz Lankford Rubio Manager SCHIFF. Ranking Member COL- views either. There is a very good in- Daines Lee Sasse LINS asked to call witnesses, which was vestigative reason that has been used Enzi Loeffler Scott (FL) denied by Manager NADLER. And that is by Republicans and Democrats who Ernst McConnell Scott (SC) Fischer McSally what they call fairness? That is not have been adamant about the policy of Shelby Gardner Moran Sullivan Graham Murkowski how our American justice system excluding agency counsel. Thune Grassley Paul works, and it is certainly not how our It was also represented that the In- Tillis Hawley Perdue Toomey impeachment process is designed by telligence Committee and the Judici- Hoeven Portman our Constitution. ary Committee wouldn’t allow the mi- Hyde-Smith Risch Wicker The House took no action on the sub- nority to call any witnesses. That is Inhofe Roberts Young poenas issued to Mr. Duffey and Mr. just not true. In fact, fully one-third of NAYS—47 Blair because they didn’t want a court the witnesses who appeared in open Baldwin Hassan Rosen to tell them that they were trampling hearing in our committee were minor- Bennet Heinrich Sanders on their constitutional rights. Now ity-chosen witnesses. What they ended Blumenthal Hirono Schatz they want this Chamber to do it for Booker Jones Schumer up having to say was pretty darn in- Brown Kaine them. Shaheen criminating of the President, but, Cantwell King Sinema Mr. Counsel CIPOLLONE. Mr. Chief nonetheless, they chose them. Cardin Klobuchar Smith Justice, we yield the remainder of our So about this idea that, well, we had Carper Leahy Stabenow Casey Manchin Tester time. no due process, the fact of the matter Coons Markey Udall The CHIEF JUSTICE. House man- is, we followed the procedures in the Cortez Masto Menendez Van Hollen agers have 24 minutes remaining. Clinton and Nixon impeachments. They Duckworth Merkley Mr. Manager SCHIFF. Mr. Chief Jus- Durbin Murphy Warner can continue to say we didn’t, but we Feinstein Murray Warren tice, a couple of fact checks, once did. In some respects, we gave even Gillibrand Peters Whitehouse again. greater due process opportunities here Harris Reed Wyden First of all, the complaint is made than there. The fact that the President The motion to table was agreed to; that, well, the House wouldn’t allow would take no advantage of them the amendment is tabled. agency counsel. Why wouldn’t the doesn’t change the fact that they had The CHIEF JUSTICE. The Demo- House allow agency counsel to be that opportunity. cratic leader is recognized. present in those secret depositions that Finally, the claim is made that we AMENDMENT NO. 1290 you have been hearing so much about? trampled on the constitutional rights Mr. SCHUMER. Mr. Chief Justice, I As I mentioned earlier, those secret by daring to subpoena these witnesses. send an amendment to the desk to pre- depositions allowed 100 Members of the How dare we subpoena administration vent the selective admission of evi- House to participate. There are 100 officials—right?—because Congress dence and provide for the appropriate Members of the Senate. We could have never does that. How dare we do that. handling of classified and confidential had that secret deposition right here How dare we subpoena them. Well, the materials, and I ask that it be read. It on the Senate floor. During those depo- court heard that argument in the case is short. sitions, Members of both parties were of Don McGahn, and you should read The CHIEF JUSTICE. The clerk will given equal time to ask questions of the judge’s opinion in finding that this read the amendment. these witnesses. claim of absolute immunity has no sup- The legislative clerk read as follows: By the way, where did Democrats get port, no substance; it would have re- The Senator from New York [Mr. SCHUMER] that rule of no agency counsel during sulted in a monarchy. It is essentially proposes an amendment numbered 1290. these depositions? We got it from the the judicial equivalent of: Don’t let the On page 2, between lines 4 and 5, insert the Republicans. This was the Republican door hit you in the backside on the following: deposition rule, and we can cite you ad- If, during the impeachment trial of Donald way out, Counsel. There is no merit amant explanations by Trey Gowdy John Trump, any party seeks to admit evi- there. and others about how these rules are so dence that has not been submitted as part of Counsel can repeat that argument as important that the depositions not be the record of the House of Representatives often as they like, but there is no sup- and that was subject to a duly authorized public, that agency counsel be export in the courts for it. There should subpoena, that party shall also provide the cluded. be no support for it in this body, not if opposing party all other documents respon- And why? Well, you get a good sense sive to that subpoena. For the purposes of of it when you see the testimony of you want any of your subpoenas in the future to mean anything at all. this paragraph, the term ‘‘duly authorized Deputy Assistant Secretary George subpoena’’ includes any subpoena issued pur- Kent. Kent describes how he is at a I yield back. suant to the impeachment inquiry of the meeting with some of the State De- The CHIEF JUSTICE. The majority House of Representatives. partment lawyers and others, and they leader is recognized. The Senate shall take all necessary measures to ensure the proper handling of con- MOTION TO TABLE are talking about the document re- fidential and classified information in the quest from Congress and what are they Mr. MCCONNELL. Mr. Chief Justice, record. going to do about these and what docu- I have a motion at the desk to table The CHIEF JUSTICE. The majority ments are responsive and what docu- the amendment. leader is recognized. ments aren’t responsive. The issue I ask for the yeas and nays. Mr. MCCONNELL. Let’s take a 5- comes up in a letter the State Depart- The CHIEF JUSTICE. Is there a suffi- minute break. I ask everybody to stay ment sent to Congress saying: You are cient second? close to the Chamber. We will go with intimidating the witnesses. Secretary There appears to be a sufficient sec- a hard 5 minutes. Kent testified: No, no, no. The Con- ond. f gress wasn’t intimidating witnesses; it The clerk will call the roll. was the State Department that was in- The legislative clerk called the roll. RECESS SUBJECT TO THE CALL OF timidating witnesses to try to prevent The CHIEF JUSTICE. Are there any THE CHAIR them from testifying. other Senators in the Chamber wishing Mr. MCCONNELL. Mr. Chief Justice, My colleagues at the other table say: to vote or change their vote? I ask unanimous consent that the Sen- Why aren’t you allowing the Members The result was announced—yeas 53, ate stand in recess subject to the call from the State Department to sit next nays 47, as follows: of the Chair. to those witnesses and hear what they [Rollcall Vote No. 20] There being no objection, the Senate, have to say in the depositions? We have at 11:19 p.m., recessed until 11:39 p.m. YEAS—53 seen all too much witness intimidation and reassembled when called to order Alexander Boozman Cassidy in this investigation, to begin with, HIEF USTICE Barrasso Braun Collins by the C J . without having an agency minder sit- Blackburn Burr Cornyn The CHIEF JUSTICE. Mr. SCHIFF, are ting in on the deposition. Blunt Capito Cotton you in favor or opposed?

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00134 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.078 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S421 Mr. Manager SCHIFF. In favor. resolution by providing for the proper I reserve the balance of our time. The CHIEF JUSTICE. Mr. Cipollone. handling of confidential and classified The CHIEF JUSTICE. Mr. Cipollone. Mr. Counselor CIPOLLONE. Mr. information for the record. This Mr. Counsel CIPOLLONE. Thank Chief Justice, we are opposed. amendment seeks to balance the you, Mr. Chief Justice. Mr. Philbin and The CHIEF JUSTICE. There are 2 public’s interest in transparency with Mr. Sekulow will argue. hours for argument, equally divided. the importance of protecting limited, The CHIEF JUSTICE. Mr. Philbin. Mr. SCHIFF, you may proceed first. sensitive information bearing directly Mr. Counsel PHILBIN. Mr. Chief Jus- Mr. Manager SCHIFF. Senators, the on the case you are trying. tice and Members of the Senate, the majority leader amended his resolution As for confidential information, some President opposes this amendment, and earlier today to allow the admission of of the evidence in this case includes I can be brief in explaining why. the House record into evidence, though records of phone calls. They establish This amendment would say that any the resolution leaves the record subject important patterns of conduct, as we subpoena that was issued pursuant to to objections. explain in the Ukraine impeachment the House’s impeachment inquiry—any But there is a gaping hole—another report. subpoena that they issued at all—be- gaping hole—in the resolution. The res- But the original phone records, incomes defined as a duly authorized sub- olution would allow the President to cluding a great deal more information poena for purposes of this amendment. cherry-pick documents he has refused in context, should be available for this As we have explained several times to produce to the House and attempt to body to review if needed in a confiden- today, because the House began this in- admit them into evidence here. tial setting. It contains personally sen- quiry without taking a vote, it never That would enable the President to sitive information concerning individ- authorized any of its committees to use his obstruction not only as a shield uals who are not at issue in this trial issue subpoenas pursuant to the im- to his misconduct but also as a sword and would potentially subject them to peachment power. The first 23 subpoenas, at a min- in his defense. That would be patently intrusions on their privacy. imum, that the House committees unfair and wholly improper. It must The Secretary of the Senate has the issued were all unauthorized in ultra not be permitted, and that is what the capacity to handle such material and vires, and that is why the Trump ad- Schumer amendment addresses. make it available to you as needed. ministration did not respond to them The amendment addresses that issue The amendment allows the privacy and did not comply with them. That by providing that if any party seeks to interests of many individuals to be pro- was explained in a letter of October 18, admit, for the first time here, informa- tected, while allowing the Senators ac- from White House Counsel Cipollone to tion that was previously subject to cess to the full record. As for the classified information that Chairman SCHIFF and others, that it is subpoena, that party must do a simple this amendment addresses, there may a legal infirmity in those subpoenas. and fair thing; it must provide the op- be several very relevant classified doc- There has never been an impeach- posing party all of the other documents uments. ment inquiry initiated by the House of responsive to the subpoena. That is Let me just highlight one in par- Representatives against a President of how the law works in America. It is ticular. It involves the testimony of the United States without it being au- called the rule of completeness. the Vice President’s national security thorized by a vote of the full House. When the selective introduction of aide, Jennifer Williams, and it con- This is a principle that the Supreme evidence distorts facts or sows confu- cerns a conversation between the Vice Court has made clear in cases such as sion in a trial, there is a solution. It is President and the President of United States vs. Rumely, that no to ensure that documents that provide Ukraine, and the House managers be- committee of Congress can exercise au- for a complete picture can be intro- lieve that it would be of value to this thority assigned by the Constitution to duced to avert such distortions and body to see, in trying the case. the Chamber itself, of the House or the confusion. Let me start by saying that we have Senate, without being delegated that The rule of completeness is rooted in twice requested that the Vice Presi- authority by the House or the Senate. the commonsense evidentiary principle dent declassify this document. We have In Rumely, the Court explains that that a fair trial does not permit the reviewed it, and there is no basis to to determine the validity of a subpoena parties to selectively introduce evi- keep it classified. The Vice President requires ‘‘construing the scope of the dence in a way that would mislead has not responded, and we can only authority which the House of Rep- factfinders. The Senators should em- conclude this was an additional effort resentatives gave to the committee.’’ brace it as a rule for this trial, and the by the President to conceal wrongdoing So this is a legal issue, an infirmity amendment does just that. from the public. But as it stands now, in those subpoenas, and this amend- This amendment does not in any way it remains classified. It must be han- ment proposes to do away with that limit the evidence the President may dled like any other classified document legal infirmity by defining all their introduce during his trial. He should be by this body in a method that would subpoenas as duly authorized, and we able to defend himself against the allow them. do not support that amendment. charges against him as every defendant Let me just take a moment to go fur- In addition to that, I just want to re- has the right to do around the country. ther. The public should see that supple- spond briefly to Chairman SCHIFF’s de- But this amendment does make sure mental testimony as well. That supple- scription of the rule of completeness. that he does it in a fair way and that mental testimony—that classified tes- This is not about the rule of complete- his obstruction cannot be used as a timony—was added to the record by ness. The rule of completeness has to weapon. the Vice President’s aide because she do with a particular document or a par- It is an amendment based on simple believed, I think, on further reflection, ticular piece of evidence which is mis- fairness, and it will help the Senate that it would shed additional light on leading in itself. With that document, and the American people get to the what she has said publicly. You should if there is something specific about it truth. see it and you should evaluate it for that there is another response on the House managers are not afraid of the what it has to say, but, what is more, email chain—something like that— evidence, whatever it may be. We want so should the American people. that particular document has some an open process designed to get to the So I would urge not only that you specific thing attached to it, and then truth, no matter whether it helps or support this amendment to make sure that should also come into evidence. hurts our case. That is what the Senate that you can handle the classified in- But since all the evidentiary motions should want, and that is what the formation, there is a mechanism for it, are being preserved and objections can American people certainly want. and personal identifiable information be made later, evidentiary arguments This amendment helps that process need not be made public, but also infor- under the underlying resolution can be of getting more evidence so we can get mation that is improperly classified made. The rule of completeness can be to the truth, and we urge you to vote that bears or sheds light on her deci- argued. There is no need for that to do for it. sion should be accessible to you and this amendment, because this amend- The amendment also addresses an- should be accessible to the American ment doesn’t have anything to do with other omission in the majority leader’s people. the rule of completeness.

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00135 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.086 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S422 CONGRESSIONAL RECORD — SENATE January 21, 2020 With that, I will yield the remainder Look at what they did in response to ing the skepticism I think the country of my time to Mr. Sekulow. the FOIA, or Freedom of Information feels about whether that is possible, The CHIEF JUSTICE. Mr. Sekulow. Act, requests. They blacked out all the how much they want to believe this is Mr. Counsel SEKULOW. Thank you, incriminating information. They possible. But I have to say, watching Mr. Chief Justice and Members of the blacked out the ‘‘we can’t represent now at midnight, this effort to hide Senate. I will be brief. This amendment any more that we are going to be able this in the dead of night cannot be en- to the resolution we oppose, as Mr. to actually spend this money in time. couraging to them about whether there Philbin just said, because it is in es- We can’t represent that we are not will be a fair trial. sence an unconstitutional attempt to going to be in violation of the law of I yield back. cure a defect—a defect in their own the Impoundment Act.’’ They redact The CHIEF JUSTICE. The majority proceeding. that. leader is recognized. To be clear, we are reserving our ob- Is that what you want in this trial, MOTION TO TABLE jections as it relates to hearsay, which for them to be able to introduce one Mr. MCCONNELL. Mr. Chief Justice, is what the record primarily consists part of an email chain and not show I have a motion at the desk to table of. you the rest? I also want to respond very briefly to the amendment. You want to be able to have a situa- The CHIEF JUSTICE. The question is what Manager SCHIFF said regarding tion where the President has withheld on agreeing to the motion. the proceedings in the House of Rep- all these documents from you, can in- resentatives and the lack of agency Is there a sufficient second? troduce a document that suggests a be- There is a sufficient second. counsel. He said it is much like the nign explanation but not the reply that grand jury. He best be glad and the Mr. MCCONNELL. I ask for the yeas confirms the corrupt explanation, be- and nays. Members of his committee best be glad cause that is what we are really talk- that it is not like a grand jury, because The CHIEF JUSTICE. The clerk will ing about here. call the roll. if it was a grand jury and information Now they clothe this in the argument The legislative clerk called the roll. was leaked, which it was consistently that, well, we don’t think these were The CHIEF JUSTICE. Does any Sen- throughout this process, they could be duly authorized subpoenas. We are ator in the Chamber wish to change his subject to felony. merely categorizing the universe of or her vote? So I want to be clear. Utilizing this documents they should turn over if The result was announced—yeas 53, amendment to cure a constitutional they want to turnover selective docu- nays 47, as follows: defect—and that is what this is—is ex- ments. Let them call them unduly au- actly what we have been arguing about thorized, therefore. The point is, that [Rollcall Vote No. 21 Leg.] now for almost 11 hours. It is changing the documents that should be turned YEAS—53 the rules. It is different rules. over should not be cherry-picked by a Alexander Fischer Perdue I can’t determine if we are dealing White House that has already shown Barrasso Gardner Portman with a trial, a pretrial motion—but we Blackburn Graham Risch such a deliberate intent to deceive. Blunt Grassley have now have spent 11 hours arguing Roberts Finally, counsel says they can’t tell Boozman Hawley Romney about something that we will be argu- whether we are dealing with a trial Braun Hoeven Rounds ing again next week. here. Well, do you know something? Burr Hyde-Smith Rubio But the idea that you can cure in Capito Inhofe Sasse Neither can we. If they are confused, Cassidy Johnson Scott (FL) three paragraphs constitutional defects they are confused for a good reason, be- Collins Kennedy Scott (SC) doesn’t pass constitutional muster. Cornyn Lankford cause this doesn’t look like any other Shelby We yield the rest of our time. Cotton Lee trial that they are used to. People Cramer Loeffler Sullivan The CHIEF JUSTICE. The House watching—they are confused, too, be- Thune managers have 54 minutes remaining. Crapo McConnell cause they would think if this was a Cruz McSally Tillis Mr. Manager SCHIFF. Well, first of Toomey trial, there would be no debate about Daines Moran all, the counsel makes the argument Enzi Murkowski Wicker whether the party with the burden of Ernst Paul Young once again that with subpoenas, the proof could call witnesses. Of course, President gets to decide which are they could. Of course, they can. NAYS—47 valid and which are invalid, and any The defendant doesn’t get to decide Baldwin Hassan Rosen subpoena the President doesn’t like, he who the prosecution can call as a wit- Bennet Heinrich Sanders Blumenthal Hirono may simply declare invalid, and that is ness. If you are confused, so is the pub- Schatz the end of the story. Therefore, it is in- Booker Jones Schumer lic. They want this to look like a reg- Brown Kaine Shaheen valid, and no documents are required, ular trial, and it should. That has been Cantwell King Sinema and no witnesses need to show up, and, the history of this body. That has been Cardin Klobuchar Smith therefore, you don’t need to consider Carper Leahy Stabenow the history of this body. Casey Manchin Tester whether the President should be able Now I know it is late, but I have to Coons Markey Udall to game the system by showing you a Cortez Masto Menendez tell you it doesn’t have to be late. We Van Hollen handful of documents to mislead you Duckworth Merkley don’t control the schedule here. We are Durbin Murphy Warner and deprive you of seeing all of the not deciding we want to carry on Feinstein Murray Warren other documents relevant to that same through the evening. We don’t get to Gillibrand Peters Whitehouse subject. That is their argument. The decide the schedule. Harris Reed Wyden President didn’t like the way the sub- There is a reason for why we are still The motion to table is agreed to; the poenas were issued, even though the here at 5 minutes to midnight. There is amendment is tabled. Court has already ruled on this issue a reason why we are here at 5 minutes The CHIEF JUSTICE. The Demo- and said: No, Mr. President, you don’t to midnight, and that is because they cratic leader is recognized. get to decide whether a subpoena is don’t want the American people to see AMENDMENT NO. 1291 valid or not in an impeachment pro- what is going on here. They are hoping Mr. SCHUMER. Mr. Chief Justice, I ceeding. That is the sole responsibility people are asleep. You know, a lot of send an amendment to the desk to of the House. people are asleep right now, all over issue a subpoena to John Robert But no, I guess they would suggest to the country, because it is midnight. Bolton, and I ask that it be read. you the President would never mislead Now, maybe in my State of Cali- The CHIEF JUSTICE. The clerk will you about documents. If they seek to fornia people are still awake and read the amendment. introduce something, you can be as- watching, but is this really what we The legislative clerk read as follows: sured that that document tells the should be doing when we are deciding The Senator from New York [Mr. SCHUMER] complete truth. the fate of a Presidency—that we proposes an amendment numbered 1291. But we already know you can place should be doing this in the midnight At the appropriate place in the resolving no such reliance on the President. How hour? clause, insert the following: do we know this? We have already seen I started out the day asking whether SEC. lll. Notwithstanding any other it. there could be a fair trial and express- provision of this resolution, pursuant to

VerDate Sep 11 2014 20:20 Feb 11, 2020 Jkt 099060 PO 00000 Frm 00136 Fmt 4624 Sfmt 0634 E:\RECORD20\JANUARY\S21JA0.REC S21JA0 sradovich on DSKJLST7X2PROD with CONG-REC-ONLINE January 21, 2020 CONGRESSIONAL RECORD — SENATE S423 rules V and VI of the Rules of Procedure and has relevant evidence not yet disclosed Ambassador Bolton is a firsthand Practice in the Senate When Sitting on Im- to the public. His comments reaffirm witness to President Trump’s abuse of peachment Trials, the Chief Justice of the what is obvious from the testimony power. As the National Security Advi- United States, through the Secretary of the and documents obtained by the House, sor, he reported directly to the Presi- Senate, shall issue a subpoena for the taking of testimony of John Robert Bolton, and the which highlight Ambassador Bolton’s dent and supervised the entire National Sergeant at Arms is authorized to utilize the role in the repeated criticism of the Security Council. That included three services of the Deputy Sergeant at Arms or President’s misconduct. key witnesses with responsibility for any other employee of the Senate in serving In fact, extensive evidence collected Ukraine matters who testified in great the subpoena authorized to be issued by this by the House makes clear that Ambas- detail before the House—Dr. Fiona Hill, section. sador Bolton not only had firsthand Tim Morrison, and LTC Alexander The CHIEF JUSTICE. The amend- knowledge of the Ukraine scheme but Vindman. ment is arguable by the parties with 2 that he was deeply concerned with it. Moreover, in his role, John Bolton hours equally divided. He described the scheme as a ‘‘drug was the tip of the spear for President Mr. Manager SCHIFF, are you a pro- deal’’ to a senior member of the staff. Trump on national security. It was his ponent? He warned that President Trump’s per- responsibility to oversee everything Mr. Manager SCHIFF. Yes, I am. sonal lawyer, Rudy Giuliani, would happening in the Trump administra- The CHIEF JUSTICE. Mr. Cipollone, ‘‘blow everybody up.’’ Indeed, in ad- tion regarding foreign policy and na- are you an opponent? vance of the July 25, 2019, call, Ambas- tional security. By virtue of his unique Mr. Counsel CIPOLLONE. Yes, Mr. sador Bolton expressed concern that position appointed by the President, Chief Justice. President Trump would ask the Bolton had knowledge of the latest in- The CHIEF JUSTICE. Mr. SCHIFF, Ukrainian President to announce these telligence and developments in our re- you may proceed, and you may reserve political investigations, which is, of lationship with Ukraine, including our time for rebuttal. course, exactly what happened. Of support of the country and its new Mr. Manager NADLER. Before I course, there weren’t to be any inves- President, and that is why the Presi- begin, Mr. Chief Justice, the House tigations. All he cared about was an dent and some Members of this body managers will be reserving the balance announcement to smear a political are afraid to hear from Ambassador of our time to respond to the argu- rival in the United States. He repeat- Bolton—because they know he knows ments of the counsel for the President. edly urged his staff to report their own too much. Mr. Chief Justice, Senators, counsel concerns about the President’s conduct There is also substantial evidence for the President, the House managers to legal counsel—that is, Ambassador that Ambassador Bolton kept a keen strongly support this amendment to Bolton did, not the President—as the eye on Rudy Giuliani, who was acting subpoena John Bolton. I am struck by scheme was unfolding. on behalf of the President in connec- what we have heard from the Presi- Finally, as National Security Advi- tion with Ukraine. As we will describe, dent’s counsel so far tonight. They sor, he also objected to the President’s Ambassador Bolton communicated di- complain about process, but they do freezing of military aid to Ukraine and rectly with Mr. Giuliani at key mo- not seriously contest any of the allega- advocated for the release of that aid, ments. He knows the details of the so- tions against the President. They in- including directly with President called drug deal he would later warn sist that the President has done noth- Trump. Of course, as we all know, the against. ing wrong, but they refuse to allow the Impoundment Control Act makes ille- Perhaps most importantly, Ambas- evidence and hear from the witnesses. gal the President’s withholding of that sador Bolton has said both that he will They will not permit the American aid after Congress had voted for it, but testify and that he has relevant infor- people to hear from the witnesses, and the President ignored the warnings mation that has not yet been disclosed. they lie and lie and lie and lie. about that because all he cared about A key witness has come forward and For example, for months, President was smearing a political rival. The law confirmed not only that he partici- Trump has repeatedly complained that meant nothing to him. pated in critically important events the House denied them the right to call Ambassador Bolton has made clear but that he has new evidence we have witnesses, to cross-examine witnesses, that he is ready, willing, and able to not yet heard. That is precisely what and so forth. You heard Mr. Cipollone testify about everything he witnessed, Ambassador Bolton has done. His law- repeat this lie today. Well, I have with but President Trump does not want yer tells us that Ambassador Bolton me the letter that I sent as Chairman you to hear from Ambassador Bolton, was ‘‘personally involved in many of of the House Judiciary Committee last and the reason has nothing to do with the events, meetings, and conversa- November 26, inviting the President executive privilege or this other non- tions about which the House heard tes- and his counsel to attend our hearings, sense. The reason has nothing to do timony, as well as many relevant meet- to cross-examine the witnesses, to call with national security. If the President ings and conversations that have not witnesses of his own, and so forth. I cared about national security, he yet been discussed in the testimony also have the White House letter signed would not have blocked military assist- thus far.’’ by Mr. Cipollone, rejecting that offer. ance to a vulnerable strategic ally in Ambassador Bolton was requested as We should expect at least a little re- the attempt to secure a personal polit- a witness in the House inquiry, but he gard for the truth from the White ical favor for himself. refused to appear voluntarily. His law- House, but that is apparently too much No, the President does not want you yers informed the House Intelligence to expect. to hear from Ambassador Bolton be- Committee that Ambassador Bolton Ladies and gentlemen, this is a trial. cause the President does not want the would take the matter to court if At a trial, the lawyers present evi- American people to hear firsthand tes- issued a subpoena, as his subordinate dence. The American people know that. timony about the misconduct at the did, but the Ambassador changed his Most 10-year-olds know that. If you heart of this trial. The question is tune. He recently issued a statement vote to block this witness or any of the whether the Senate will be complicit in confirming that ‘‘if the Senate issues a evidence that should be presented here, the President’s crimes by covering subpoena for my testimony, I am pre- it can only be because you do not want them up. Any Senator who votes pared to testify.’’ the American people to hear the evi- against Ambassador Bolton’s testi- So the question presented as to Am- dence, that you do not want a fair mony or any relevant testimony shows bassador Bolton is clear. It comes down trial, and that you are complicit in that he or she wants to be part of the to this: Will the Senate do its duty and President Trump’s efforts to hide his coverup. What other possible reason is hear all the evidence? Or will it slam misconduct and hide the truth from there to prohibit a relevant witness this door shut and show it is partici- the American people. from testifying here? Unfortunately, so pating in a coverup because it fears to Ambassador Bolton was appointed by far, I have seen every Republican Sen- hear testimony from the former Na- President Trump. He has stated his ator has shown that they want to be tional Security Advisor of the Presi- willingness to testify in this trial. He part of the coverup by voting against dent, because it fears what he might is prepared to testify. He says that he every document and witness proposed. say or it fears he knows too much?

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The question is whether Re- Ambassador Bolton became aware of Mr. Manager NADLER. These state- Mr. Giuliani’s coordination with Am- publican Senators here today will par- ments of events are reason enough to ticipate in that coverup. bassadors Volker and Sondland, he told insist that Ambassador Bolton testify. Dr. Hill and other members of the Na- The reasons seem clear. President He can explain the misconduct that tional Security Council staff that ‘‘no- Trump wants to block this witness be- caused him to characterize the Ukraine body should be meeting with Giuliani.’’ cause Ambassador Bolton has direct scheme as a drug deal and why he di- But, he, of course, did not know of the knowledge of the Ukraine scheme, rected his subordinates to report their President’s plot as to why people were which he called a drug deal. Let’s start concerns to a legal counsel. He can tell meeting with Giuliani. with the key meeting that took place us everything else he knows about how Dr. Hill also testified that Ambas- on July 10. Ambassador Sondland, Mr. Mulvaney, sador Bolton was ‘‘closely monitoring Just 2 weeks before President and others were attempting to press what Mr. Giuliani was doing and the Trump’s now famous July 25 call with the Ukrainians to do President messaging that he was sending out.’’ President Zelensky, Ambassador Trump’s political bidding. Once more, But Ambassador Bolton was keenly Bolton hosted senior Ukrainian offi- only Ambassador Bolton can tell us aware that Mr. Giuliani was doing the cials in his West Wing office. That what he was thinking and what he President’s bidding. That is also why meeting included Dr. Hill, Lieutenant knew as this scheme developed. That is the President fears his testimony. Colonel Vindman, Ambassadors why the President fears his testimony. During a meeting on June 13, 2019, Sondland and Volker, and Energy Sec- That is why some Members of this body Ambassador Bolton made clear that he retary Rick Perry. As they did in every fear his testimony. supported more engagement with meeting they took with U.S. officials, Ambassador Bolton’s involvement Ukraine by senior White House offi- Ukrainian officials asked when Presi- was not limited to a few isolated cials but questioned that ‘‘Mr. Giuliani dent Trump would schedule a White events; he was a witness at key mo- was a key voice with the president on House meeting for the newly elected ments in the course of the Ukraine Ukraine.’’ He joked that every time Ukrainian President because it was scheme, especially in July, August, and Ukraine is mentioned, Giuliani pops very important for the Ukrainian September of last year. I would like to up. President, a new President of an em- walk through some of these events. Ambassador Bolton also commu- battled democracy being invaded by Please remember, as I am describing nicated directly with Mr. Giuliani at Russia, to show that he had legitimacy them, that this is not the entire uni- key junctures. According to call by a meeting with the United States. verse of issues to which Ambassador records obtained by the House, Mr. Dr. Hill testified that Ambassador Bolton could testify; they are only ex- Giuliani connected with Ambassador Sondland blurted out that he had a amples that show why he is such an im- Bolton’s office three times for brief deal with Mr. Mulvaney for a White portant witness and why the President calls between April 23 and May 10, 2019, House visit, provided that Ukraine first is desperate to block his testimony. a time period that corresponds with announce investigations into the Presi- We know from Ambassador Bolton’s the recall of Ambassador Yovanovitch dent’s political rivals. Ambassador attorney that there may be other and the acceleration of Mr. Giuliani’s Bolton immediately stiffened and meetings and conversations that have efforts on behalf of President Trump to ended the meeting. Dr. Hill’s testimony not yet come to our attention. To take pressure Ukraine into opening inves- is on the screen. one example, we know from witness tigations that would benefit his reelec- In other words, Ambassador Bolton testimony that Ambassador Bolton re- tion campaign. and others at the meeting were inter- peatedly expressed concerns about the For instance, on April 23, the day be- ested in the national security of the involvement of President Trump’s per- fore the State Department recalled United States. They were interested in sonal lawyer, Mr. Giuliani. Ambassador Yovanovitch from protecting an American ally against In the spring and summer of 2019, Ukraine, Mr. Giuliani had an 8-minute Russian invasion. They couldn’t under- Ambassador Bolton caught wind of Mr. 28-second call from the White House. stand why this sudden order was com- Giuliani’s involvement in Ukraine and Thirty minutes later, he had a 48-sec- ing from the President to abandon that soon began to express concerns. Am- ond call with a phone number associ- ally because they didn’t yet know— bassador Bolton expressed strong con- ated with Ambassador Bolton. they didn’t yet know—of the Presi- cerns about Mr. Giuliani’s involvement If he were called to testify, we could dent’s plot to try to extort the Ukrain- in Ukraine matters. ask Ambassador Bolton directly what ian Government into doing him a polit- When Ambassador Bolton described transpired on that call and whether ical favor by announcing an investiga- Mr. Giuliani as ‘‘a hand grenade that that phone call informed his assess- tion of a political rival. was going to blow everybody up,’’ it ment that Mr. Giuliani was ‘‘a hand When Dr. Hill reported back to Am- was based on his fear that Mr. grenade that was going to blow every- bassador Bolton about the second con- Giuliani’s work on behalf of the Presi- one up.’’ We can ask Mr. Bolton why, versation, Ambassador Bolton told Dr. dent, his attempts to have Ukraine an- when there are approximately 1.8 mil- Hill to go to the National Security nounce these investigations—these lion companies in Ukraine—several Council’s legal advisor, John sham investigations—and his campaign hundred thousand of which have been Eisenberg, and tell him: ‘‘I am not part to smear Ambassador Yovanovitch accused of corruption—the President of whatever drug deal Sondland and would ultimately backfire and cause was focused on only one. He didn’t care Mulvaney are cooking up on this.’’ lasting damage to the President. It about anything else. He cared only Here is an excerpt of her hearing tes- turns out he was right. about the company on which the timony. (Text of Videotape presentation:) former Vice President’s son had been a (Text of Videotape presentation:) Ms. SEWELL. Did your boss, Dr. Bolton— board member. Can you believe that he Ms. HILL. The specific instruction was I mean Ambassador Bolton, tell you that was concerned with corruption and that I had to go to the lawyers—to John Giuliani was ‘‘a hand grenade’’? only knew about one company, when Eisenberg, the senior counsel for the Na- Ms. HILL. He did, yes. there are hundreds of thousands that tional Security Council, to basically say: Ms. SEWELL. What do you think he meant You tell Eisenberg Ambassador Bolton told by his characterization of Giuliani as a hand were accused of corruption? me that I am not part of this—whatever drug grenade? Although Ambassador Bolton did not deal that Mulvaney and Sondland are cook- Ms. HILL. What he meant by this was pret- listen in on the July 25 call between ing up. ty clear to me in the context of all of the President Trump and President

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00138 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.091 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S425 Zelensky in which President Trump to be concerned about corruption. And sador Bolton said that the entire Cabi- asked the Ukrainian President a the President also opposed funding for net supported releasing the freeze and favor—a favor to investigate one com- corruption aid to Ukraine. wanted to get the issue to President pany and Joe Biden’s son—we have Why did Ambassador Bolton tell his Trump as soon as possible. learned from witness testimony that subordinates to report these issues to When did Ambassador Bolton first Ambassador Bolton was opposed to the national security lawyers? What become aware that President Trump scheduling the call in the first place. does he know about how the lawyers was withholding military aid to Why? Because he accurately predicted, responded to the concerns of Dr. Hill or Ukraine and conditioning the release of in the words of Ambassador Taylor, of Lieutenant Colonel Vindman and that aid on Ukraine announcing polit- that ‘‘there could be some talk of in- Mr. Morrison? Again, only Ambassador ical investigations? What was he told vestigations or worse on the call.’’ In Bolton can answer these questions, and was the reason? What else did he learn fact, he did not want the call to happen we must assume that the answers go to about the President’s actions in these at all because he ‘‘thought it was going the heart of the President’s mis- meetings? Again, only Ambassador to be a disaster.’’ conduct, given the President’s attempt Bolton can answer these questions, and How did Ambassador Bolton know to block his testimony. Why would the again we must presume that President that President Trump would bring this President oppose the testimony of his Trump is desperate for us not to hear up? What made him so concerned that own appointee as the National Security those answers. I hope not too many of a call would be a disaster? I think we Advisor of the United States unless he the Members of this body are desperate know, but only Ambassador Bolton can knew that testimony would be dam- to make sure that the American people answer these questions. ming to him? Those are other reasons don’t hear these same answers. Based on extensive witness testi- the President fears Ambassador We know that Ambassador Bolton mony, we also know that throughout Bolton’s testimony. tried throughout August, without suc- this period, multiple people on the Na- I would like to now turn to Ambas- cess, to persuade the President that tional Security Council’s staff reported sador Bolton’s knowledge of and con- the aid to Ukraine had to be released concerns to Ambassador Bolton about cerns about President Trump’s illegal because that was in America’s best in- tying American foreign policy to Presi- withholding of the military aid to terest and necessary for our national dent Trump’s ‘‘domestic political er- Ukraine. security. rand,’’ as Dr. Hill so aptly put it. Of course, we all know that under the In mid-August, we know Lieutenant After he abruptly ended the July 10 Anti-Impoundment Act of 1974—passed Colonel Vindman wrote a Presidential meeting—the meeting in which Ambas- to prevent President Nixon from refus- decision memorandum recommending sador Sondland abruptly told the ing to spend money appropriated by that the freeze be lifted based on the Ukrainians that a White House meet- Congress—withholding money appro- consensus views of the entire Cabinet. ing could be scheduled in exchange for priated by Congress is illegal; nonethe- The memo was given to Ambassador the announced investigations—Ambas- less, the President did it for obviously Bolton, who subsequently had a direct, sador Bolton spoke to Dr. Hill and di- corrupt motives. one-on-one conversation with the rected her to report her concerns to By July of last year, Ambassador President in which he tried but failed National Security Council’s legal ad- Bolton was well aware that President to convince him to release the hold. (Text of Videotape presentation:) viser John Eisenberg. Trump was illegally withholding secu- At the end of August, Ambassador rity assistance to Ukraine, and he and Mr. SWALWELL. You said Ambassador Bolton had a one-on-one meeting with Presi- Bolton advised Ambassador Taylor to his subordinates tried to convince the dent Trump in late August 2019, but the send a first-person cable to Secretary President to pursue America’s national President was not yet ready to approve the Pompeo to relay concerns about the security interests and release the aid release of the assistance. Do you remember hold on the military aid. instead of continuing to withhold vital that? Ambassador Bolton also advised Mr. military assistance to the President— Mr. MORRISON. This was 226? Morrison—Dr. Hill’s successor as the instead of holding that vital military Mr. SWALWELL. Yes, 266 and 268. But I am top Russia and Ukraine official on the asking you: Did that happen or did it not? assistance hostage to the President’s Mr. MORRISON. Sir, I just want to be National Security Council—on at least personal political agenda. clear characterizing it. OK, sir. two different occasions to report what Throughout the rest of July, over the Mr. SWALWELL. Yes. You testified to he had heard to the National Security course of several interagency meetings, that. What was the outcome of that meeting Council’s lawyers, it sounding so sus- the National Security Council repeat- between Ambassador Bolton and President picious. edly discussed the freeze on Ukraine’s Trump? On September 1, Ambassador Bolton security assistance. As National Secu- Mr. MORRISON. Ambassador Bolton did directed Mr. Morrison to report to the not yet believe the President was ready to rity Advisor, Ambassador Bolton su- approve the assistance. National Security Council’s lawyers an pervised that process. These meetings Mr. SWALWELL. Did Ambassador Bolton explicit proposal from Ambassador worked their way up to the level of inform you of any reason for the ongoing Sondland to a senior Ukrainian official Cabinet deputies, and every agency in- hold that stemmed from this meeting? that ‘‘what could help them move the volved, except for the Office of Manage- Mr. Manager NADLER. Ambassador aid was if the prosecutor general would ment and Budget, supported releasing Bolton’s efforts failed. By August 30, go to the mike and announce that he the aid. OMB, meanwhile, said its posi- OMB informed DOD that there was was opening the Burisma investigation was based on President Trump’s ‘‘clear direction from POTUS to con- tion.’’ express orders. tinue to hold.’’ What rationale did On September 7, Ambassador Bolton We know that a number of individ- President Trump give Ambassador instructed Mr. Morrison to report to uals at OMB and the Department of De- Bolton and other senior officials for re- the lawyers another conversation Mr. fense raised serious concerns about the fusing to release the aid? Were these Morrison had with Ambassador legality of freezing the funds, which we reasons convincing to Ambassador Sondland. This time, Ambassador know is illegal. We now have an ex- Bolton, and did they reflect the best in- Sondland had conveyed that the ad- plicit ruling from the Government Ac- terests of our national security or the ministration would not release the countability Office, which we didn’t President’s personal political inter- military aid unless President Zelensky need because we knew that is why the ests? announced the investigations de- law was passed in 1974, that the freeze Only Ambassador Bolton can tell us manded by President Trump—the in- ordered by President Trump was ille- the answers. A fair trial in this body vestigations of one company because gal—and he was obviously told this— would ensure that he testifies. The the President was so concerned about and violated the Impoundment Control President does not want you to hear the corruption in Ukraine. It was one Act. Ambassador Bolton’s testimony. Why company that had had Vice President We also know that after the meeting is that? For all the obvious reasons I Biden’s son on the board, and the of Cabinet deputies on July 26, Tim have stated. President just happened to pick that Morrison talked to Ambassador Bolton, The President claims that he froze company from hundreds of thousands and according to Mr. Morrison, Ambas- aid to Ukraine in the interest of our

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00139 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.093 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S426 CONGRESSIONAL RECORD — SENATE January 21, 2020 national security. If that is true, why conceal the evidence from the Amer- wrote them a letter. He said very clear- would he oppose testimony from his ican people. ly: If the House chooses not to pursue own former National Security Advisor? We cannot be surprised that the through subpoena the testimony of Dr. Make no mistake. President Trump President objects to calling witnesses Kupperman and Ambassador Bolton, had no legal grounds to block Ambas- who would prove his guilt. That is who let the record be clear. That is the sador Bolton’s testimony in this trial. he is. He does not want you to see evi- House’s decision. Executive privilege is not a spell that dence or hear testimony that details They didn’t pursue Ambassador the President can cast to cover up evi- how he betrayed his office and asked a Bolton, and they withdrew the sub- dence of his own misconduct. It is a foreign government to intervene in our poena to Mr. Kupperman. So, for them qualified privilege that protects senior election. But we should be surprised to come here now and demand that, be- advisers performing official functions. that, here in the U.S. Senate, the fore we even start the arguments—they Executive privilege is a shield, not a greatest deliberative body in the world, ask you to do something that they sword. It cannot be used to block a wit- where we are expected to put our oath refuse to do for themselves and then ness who is willing to testify, as Am- of office ahead of political expediency, accuse you of a coverup when you don’t bassador Bolton says he is. where we are expected to be honest, do it—it is ridiculous. Talk about out- As we know from the Nixon case in where we are expected to protect the of-control governing. Watergate, the privilege also does not interests of the American people—we Now, let me read you a quote from prevent us from obtaining specific evi- should be surprised, shocked—that any Mr. NADLER not so long ago: dence of wrongdoing. The Supreme Senator would vote to block this wit- The effect of impeachment is to overturn Court unanimously rejected President ness or any relevant witness who might the popular will of the voters. There must Nixon’s attempts to use executive shed additional light on the President’s never be a narrowly voted impeachment or privilege to conceal incriminating tape obvious misconduct. an impeachment supported by one of our major political parties and opposed by the recordings. All the similar efforts by The President is on trial in the Sen- other. Such an impeachment would produce President Trump must also fail. ate, but the Senate is on trial in the divisiveness and bitterness in our politics for The President sometimes relies on a eyes of the American people. Will you years to come and will call into question the theory of absolute immunity that says vote to allow all of the relevant evi- very legitimacy of our political institutions. that he can order anybody in the exec- dence to be presented here, or will you Well, you have just seen it for your- utive branch not to testify to the betray your pledge to be an impartial self. What happened, Mr. NADLER? House or the Senate or to a court. Ob- juror? Will you bring Ambassador What happened? viously, this is ridiculous. It has been Bolton here? Will you permit us to The American people pay their sala- flatly rejected by every Federal court present you with the entire record of ries, and they are here to take away to consider the idea. It is embarrassing the President’s misconduct, or will their vote. They are here to take away that the President’s counsel would talk you, instead, choose to be complicit in their voice. They have come here, and about this today. the President’s coverup? they have attacked every institution of Again, even if President Trump as- So far, I am sad to say, I see a lot of our government. They have attacked serts that Ambassador Bolton is abso- Senators voting for a coverup, voting the President, the executive branch. lutely immune from compelled testi- to deny witnesses—an absolutely inde- They have attacked the judicial mony, the President has no authority fensible vote, obviously a treacherous branch. They say they don’t have time to block Ambassador Bolton from ap- vote, a vote against an honest consid- for courts. They have attacked the U.S. pearing here. As one court recently ex- eration of the evidence against the Senate, repeatedly. It is about time we plained, Presidents are not Kings, and President, a vote against an honest bring this power trip in for a landing. they do not have subjects whose des- trial, a vote against the United States. President Trump is a man of his tiny they are entitled to control. A real trial, we know, has witnesses. word. He made promises to the Amer- This body should not act as if the We urge you to do your duty, permit a ican people, and he delivered—over and President is a King. We will see, with fair trial. All the witnesses must be over and over again. And they come the next vote on this question, whether permitted. That is elementary in here and say, with no evidence, spend- the Members of this body want to pro- American justice. Either you want the ing the day complaining, that they tect the President against all inves- truth and you must permit the wit- can’t make their case, attacking a res- tigation, against all suspicion, against nesses, or you want a shameful cover- olution that had 100 percent support in any crimes, or not. up. History will judge. So will the elec- this body. And some of the people here The Framers of our Constitution torate. supported it at the time. It is a farce, were most concerned about abuse of Mr. Chief Justice, we reserve the bal- and it should end. power where it affects national secu- ance of our time—the managers. Mr. NADLER, you owe an apology to rity. President Trump has been im- The CHIEF JUSTICE. Mr. Cipollone. the President of the United States and peached for placing his political inter- Mr. Counsel CIPOLLONE. Mr. Chief his family. You owe an apology to the ests ahead of our national security. It Justice, Members of the Senate, we Senate. But, most of all, you owe an is imperative, therefore, that we hear came here today to address the false apology to the American people. from the National Security Advisor case brought to you by the House man- Mr. Chief Justice, I yield the remain- who witnessed the President’s scheme agers. We have been respectful of the der of my time to Mr. Sekulow. from start to finish. To be clear, the Senate. We have made our arguments The CHIEF JUSTICE. Mr. Sekulow. record, as it stands, fully supports both to you. Mr. Counsel SEKULOW. Mr. Chief Articles of Impeachment. It is beyond You don’t deserve and we don’t de- Justice, Members of the Senate, chair- argument that President Trump serve what just happened. Mr. NADLER man NADLER talked about treacherous, mounted a sustained pressure cam- came up here and made false allega- and at about 12:10 a.m., January 22, the paign to get Ukraine to announce in- tions against our team. He made false chairman of the Judiciary Committee, vestigations that would benefit him po- allegations against all of you. He ac- in this body, on the floor of this Sen- litically and then tried to cover it up. cused you of a coverup. He has been ate, said ‘‘executive privilege and other The President does not seriously deny making false allegations against the nonsense.’’ Now, think about that for a any of these facts. President. The only one who should be moment—‘‘executive privilege and The only question left is this: Why is embarrassed, Mr. NADLER, is you, for other nonsense.’’ the President so intent on concealing the way you have addressed this body. Mr. NADLER, it is not nonsense. These the evidence and blocking all docu- This is the U.S. Senate. You are not in are privileges recognized by the Su- ments and testimony here today? Only charge here. preme Court of the United States. To guilty people try to hide the evidence. Now let me address the issue of Mr. shred the Constitution on the floor of Of course, all of this is relevant only Bolton. I have addressed it before. the Senate—to serve what purpose? if this here today is a fair trial, only if They don’t tell you that they didn’t The Senate is not on trial. The Con- you, the Senate, sitting as an impartial bother to call Mr. Bolton themselves. stitution doesn’t allow what just took jury, do not work with the accused to They didn’t subpoena him. Mr. COOPER place.

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00140 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.094 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S427 Look at what we have dealt with for It is an assertion of the kingly pre- get Ukraine to interfere in our elec- the last now 13 hours. We, hopefully, rogative, a monarchical prerogative. tion. The President said, even while are closing the proceedings, but not on Only the President—only the President the impeachment investigation was a very high note. has rights, and the people as rep- going on, when he was asked: What did Only guilty people try to hide evi- resented in Congress cannot get infor- you want in that call with Zelensky, dence? So, I guess, when President mation from the executive branch at and his answer was: Well, if we are Obama instructed his Attorney General all. This body has committees. It has a being honest about it, Zelensky should to not give information, he was guilty 200-year record of issuing subpoenas, of do that investigation of the Bidens. of a crime. That is the way it works, having the administration of the day He hasn’t stopped asking them to Mr. NADLER? Is that the way you view testify, of sometimes having subpoena interfere. Do you think the Ukrainians the U.S. Constitution? Because that is fights, but no President has ever have any doubt about what he wants? not the way it was written. That is not claimed the right to stonewall Con- One of the witnesses, David Holmes, the way it is interpreted, and that is gress on everything, period. Congress testified about the pressure that not the way the American people has no right to get information. The Ukraine feels. He made a very impor- should have to live. American people have no right to get tant point: It isn’t over. It is not like I will tell you what is treacherous: information. That, in fact, is article II they don’t want anything else from the To come to the floor of the Senate and of the impeachment that we have United States. say ‘‘executive privilege and other non- voted. This effort to pressure Ukraine goes sense.’’ It is beyond belief that the President on to this day, with the President’s Mr. Chief Justice, we yield the rest of claims monarchical powers—I can do lawyer continuing the scheme, as we our time. whatever I want under article II, says speak, with the President inviting The CHIEF JUSTICE. The managers he—and then acts on that, defies every- other nations to also involve them- have 27 minutes remaining. selves in our election. Mr. Manager NADLER. Mr. Chief thing, defies the law to withhold aid from Ukraine, defies the law in a dozen China—he wants to now investigate Justice, Members of the Senate, the the Bidens. This is no intangible threat different directions all the time, and President’s counsel has no standing to to our elections. Within the last couple lies about it all the time and says to talk about lying. He told this body of weeks, it has been reported that the Mr. Cipollone to lie about it. These today—the President has told this Russians have tried to hack Burisma. facts are undeniable—undeniable. body—and told the American people re- Why do you think they are hacking peatedly, for example, that the House I reserve. Mr. Manager SCHIFF. Mr. Cipollone, Burisma? Because, as Chairman NAD- of Representatives refused to allow the LER says, everybody seems to be inter- President due process. I told you that once again, complained that we did not request John Bolton to testify in the ested in this one company out of hun- it is available—public document, No- dreds of thousands Ukrainian compa- vember 26 letter from me, as chairman House, but of course we did. We did request his testimony, and he was a no- nies. It is a coincidence that the same of the Judiciary Committee, to the company that the President has been President, offering him due process, of- show. When we talked to his counsel about trying to smear Joe Biden over hap- fering witnesses, offering cross-exam- subpoenaing his testimony, the answer pens to be the company the Russians ination. was: You give us a subpoena, and we are hacking. A few days later, we received a letter Why would the Russians do that? If will sue you. And, indeed, that is what from Mr. Cipollone on White House sta- you look back to the last election, the Mr. Bolton’s attorney did with the sub- tionery that said: No, we have no inter- Russians hacked the DNC, and they poena for Dr. Kupperman. est in appearing. started to leak campaign documents in There was no willingness by Mr. On the one hand, the House is con- a drip, drip, drip, and the President was Bolton to testify before the House. He demned by the President for not giving only too happy—over 100 times in the said he would sue us. What is the prob- him due process after they rejected the last couple of months in the cam- lem with his suing us? Their Justice offer of due process. That letter reject- paign—to cite those Russian-hacked ing it was December 1. Department, under Bill Barr, is in Russian documents, and now the Rus- The President’s counsel says that the court arguing—actually in that very sians are at it again. House should have issued subpoenas. case involving Dr. Kupperman—that This is no illusory threat to the inde- We did issue subpoenas. The President, Dr. Kupperman can’t sue the adminis- pendence of our elections. The Rus- you may recall—you should recall— tration and the Congress. sians are at it, as we speak. What does said he would oppose all subpoenas, and That is the same position that Con- the President do? Is he saying: Back he did. So many of those subpoenas are gress has taken, the same position the off, Russia; I am not interested in your still being fought in court—subpoenas administration is taking but, appar- help; I don’t want foreign interference? issued last April. So that is also un- ently, not the same position these law- No, he is saying: Come on in, China. He true. It takes a heck of a lot of nerve yers are taking. has his guy in Ukraine continuing the to criticize the House for not issuing Here is the bigger problem with that. scheme. subpoenas when the President said he We subpoenaed Don McGahn, as I told We can’t wait a year or 2 years or 3 would oppose all subpoenas. We have you earlier. You should know we sub- years, like we have had to wait with issued a lot of subpoenas. He opposes poenaed Don McGahn in April of 2019. Don McGahn, to get John Bolton in to all of them, and they are tied up in It is January of 2020. We still don’t testify to let you know that this threat court. have a final decision from the court re- is ongoing. The President claims—and most quiring him to testify. In a couple of Counsel also says: Well, this is just Members of this body know better, ex- months, it will be 1 year since we like Obama, right? This is just like ecutive privilege, which is a limited issued that subpoena. Obama, citing, I suppose, the Fast and privilege, which exists but not as a The President would like nothing Furious case. They don’t mention to shield, not as a shield against wrong- more than for us to have to go through you that in that investigation, the doing, as the Supreme Court specifi- 1 year or 2 years or 3 years of litigation Obama administration turned over tens cally said in the Nixon case in 1974. The to get any witness to come before the of thousands of documents. They don’t President claims absolute immunity. House. The problem is, the President is want you to know about that. They say Mr. Cipollone wrote some of those let- trying to cheat in this election. We it is just like Obama. ters, not only saying the President but don’t have the luxury of waiting 1 year When you find video of Barack that nobody should testify that he or 2 years or 3 years, when the very ob- Obama saying that under article II he doesn’t want, and then they have the ject of this scheme was to cheat in the can do anything, then you can compare nerve—and that is a violation of the next election. It is not like that threat Barack Obama to Donald Trump. When constitutional rights of the House of has gone away. you find a video of Barack Obama say- Representatives and the Senate and of Just last month, the President’s law- ing: I am going to fight all subpoenas, the American people represented yer was in Ukraine still trying to then you can compare Barack Obama through them. smear his opponent and still trying to to Donald Trump.

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00141 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.096 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S428 CONGRESSIONAL RECORD — SENATE January 21, 2020 And finally, Mr. Cipollone says, Cardin Kaine Schatz that you are going to get a chance to President Trump is a man of his word. Carper King Schumer vote on specific witnesses. Casey Klobuchar Shaheen It is too late in the evening for me to Coons Leahy Sinema All the resolution provides is that go into that one, except to say this. Cortez Masto Manchin Smith you are going to get an opportunity to President Trump gave his word he Duckworth Markey Stabenow vote to have a debate on whether to ul- Durbin Menendez would drain the swamp. He said he Tester timately have a vote on a particular Feinstein Merkley Udall Gillibrand Murphy witness. This would strip that middle would drain the swamp. What have we Van Hollen Harris Murray seen? We have seen his personal lawyer Warner layer. It would strip the debate on Hassan Peters Warren whether to have a debate on a par- go to jail, his campaign chairman go to Heinrich Reed jail, his deputy campaign chairman Hirono Rosen Whitehouse ticular witness. convicted of a different crime, his asso- Jones Sanders Wyden If my counsel, my colleagues for the ciates’ associate, Lev Parnas, under in- The motion to table is agreed to; the President’s team, are making the point dictment. The list goes and on. That is, amendment is tabled. that ‘‘Well, you are going to get that I guess, how you drain the swamp. You The CHIEF JUSTICE. The Demo- opportunity later,’’ the reality is that have all your people go to jail. cratic leader is recognized. under the McConnell resolution, we I don’t think that is really what was AMENDMENT NO. 1292 may never get to have a debate about meant by that expression. For the pur- Mr. SCHUMER. Thank you, Mr. Chief particular witnesses. You heard the discussion of four wit- poses of why we are here today, how Justice. does someone who promises to drain I send an amendment to the desk to nesses tonight. There may be others the swamp coerce an ally of ours into provide for a vote of the Senate on any who come to the attention of this body doing a political investigation? That is motion to subpoena witnesses or docu- who are able to get documents that we the swamp. That is not draining the ments after the question period, and I should also call. But will you ever get swamp; that is exporting the swamp. waive its reading. to hear a debate about why a par- I yield back. The CHIEF JUSTICE. Is there any ticular witness is necessary? Well, you The CHIEF JUSTICE. I think it is objection to the waiving of the read- may only get a debate over the debate. appropriate at this point for me to ad- ing? This amendment would remove that monish both the House managers and Mr. Counsel CIPOLLONE. I object. debate over debate regarding par- the President’s counsel in equal terms Mr. SCHUMER. I withdraw my re- ticular witnesses. to remember that they are addressing quest for a waiver. The other thing this resolution would the world’s greatest deliberative body. The CHIEF JUSTICE. Does any Sen- provide is that you should hear from One reason it has earned that title is ator have an objection to the waiving these witnesses directly. The McCon- because its Members avoid speaking in of the reading? nell resolution says that we deposed, a manner and using language that is Ms. MURKOWSKI. I object. and that is it. It doesn’t say you are not conducive to civil discourse. The CHIEF JUSTICE. The clerk will ever going to actually hear these wit- In the 1905 Swayne trial, a Senator read the amendment. nesses for yourself, which means that objected when one of the managers The legislative clerk read as follows: you, as the triers of fact, may not get to see and witness the credibility of used the word ‘‘pettifogging,’’ and the The Senator from New York [Mr. SCHUMER] Presiding Officer said the word ought proposes an amendment numbered 1292. these witnesses. You may only get to not have been used. I don’t think we On page 3, line 8, strike ‘‘4 hours’’ and in- see a deposition or deposition tran- need to aspire to that high a standard, sert ‘‘2 hours’’. script or maybe a video of a deposition. but I think those addressing the Senate On page 3, line 10, strike ‘‘the question of’’ I don’t know. But if there is any con- and all that follows through ‘‘rules’’ on line testing of facts, wouldn’t you like to should remember where they are. 12. The majority leader is recognized. hear from the witnesses yourself and On page 3, line 14, insert ‘‘any such mo- very directly? MOTION TO TABLE tion’’ after ‘‘decide’’. On page 3, line 15, strike ‘‘whether’’ and all Now, the reason why it was done this Mr. MCCONNELL. Mr. Chief Justice, way in the Clinton case and why there it will surprise no one that I move to that follows through ‘‘documents’’ on line 17. On page 3, line 18, strike ‘‘that question’’ were depositions—and again, in the table the amendment and ask for the and insert ‘‘any such motion’’. Clinton case, all these people had been yeas and nays. On page 3, lines 23 and 24 strike ‘‘and the interviewed and deposed or testified be- The CHIEF JUSTICE. Is there a suffi- Senate shall decide after deposition which fore. The reason it was done that way cient second? witnesses shall testify’’ and insert ‘‘and then in the Clinton case is because of the sa- There is a sufficient second. shall testify in the Senate’’. lacious nature of the testimony. No- The legislative clerk called the roll. The CHIEF JUSTICE. The amend- body wanted witnesses on the Senate The CHIEF JUSTICE. Are there any ment is arguable by the parties for 2 floor talking about sex. Well, as I said other Senators in the Chamber desiring hours, equally divided. earlier, I can assure you that will not to vote? Mr. Manager Schiff, are you a probe the issue here. The result was announced—yeas 53, ponent or opponent? To whatever degree there was a re- nays 47, as follows: Mr. Manager SCHIFF. Proponent. luctance in the Clinton case to have [Rollcall Vote No. 22 Leg.] Mr. Counsel CIPOLLONE. We oppose live testimony because of its salacious YEAS—53 it. character, that is not an issue here. The CHIEF JUSTICE. Mr. SCHIFF, Alexander Fischer Perdue That is not a reason here not to hear Barrasso Gardner Portman you may proceed and reserve time for from those witnesses yourself. Blackburn Graham Risch rebuttal. This resolution makes those two im- Blunt Grassley Roberts Mr. Manager SCHIFF. Senators, this portant changes, and I would urge your Boozman Hawley Romney amendment makes two important Braun Hoeven support. Rounds changes to the McConnell resolution. Burr Hyde-Smith Rubio I reserve time. Capito Inhofe Sasse The first is, the McConnell resolution The CHIEF JUSTICE. Mr. Cipollone. Cassidy Johnson Scott (FL) does not actually provide for an imme- Mr. Counsel CIPOLLONE. Thank Collins Kennedy Scott (SC) Cornyn Lankford diate vote even later on the witnesses you, Mr. Chief Justice. Shelby Cotton Lee we have requested. Mr. Purpura will argue this motion. Cramer Loeffler Sullivan What the McConnell resolution says Thune Mr. Counsel PURPURA. Mr. Chief Crapo McConnell is that at some point after, essentially, Justice, Members of the Senate, good Cruz McSally Tillis Daines Moran Toomey the trial is over—after you have had morning. I will be very brief on this. Enzi Murkowski Wicker the arguments of both sides and you We strongly oppose the amendment. Ernst Paul Young have had the 16 hours of questioning— We support the resolution as written. NAYS—47 then there will be a debate as to wheth- We believe, as to the two areas that Baldwin Blumenthal Brown er to have a vote and a debate on a par- Manager Schiff discussed, the resolu- Bennet Booker Cantwell ticular witness. There is no guarantee tion appropriately considers those

VerDate Sep 11 2014 20:24 Feb 11, 2020 Jkt 099060 PO 00000 Frm 00142 Fmt 4624 Sfmt 0634 E:\RECORD20\JANUARY\S21JA0.REC S21JA0 sradovich on DSKJLST7X2PROD with CONG-REC-ONLINE January 21, 2020 CONGRESSIONAL RECORD — SENATE S429 questions and strikes the impeachment person depositions—but we have no AMENDMENT NO. 1293 balance in the Senate’s discretion as idea what rules they will adopt for Mr. SCHUMER. Mr. Chief Justice, I the sole trier of impeachments. these depositions. Maybe the public send an amendment to the desk to The rules in place here in the resolu- will see them; maybe they won’t. allow adequate time for written re- tion are similar to the Clinton pro- Maybe you will get to see them; I as- sponses to any motions by the parties, ceeding in that regard in the sense that sume you will get to see them. But at and I ask that it be read. this body has the discretion as to the end of the day, this is also a vote The CHIEF JUSTICE. The clerk will whether to hear from the witness live, you have to cast that says: No, I don’t read the amendment. if there are witnesses at some point, or want to hear them for myself. No, I The senior assistant legislative clerk not. don’t want to evaluate their credibility read as follows: But, more fundamentally, the pre- for myself. The Senator from New York [Mr. SCHUMER] liminary question has to be overcome, This is, after all, only a vote, only a proposes an amendment numbered 1293. which is there will be 4 hours total, case, only a trial about the impeach- On page 2, beginning on line 10, strike ment of the President of the United ‘‘11:00 a.m. on Wednesday, January 22, 2020’’ with 2 hours for them to try to con- and insert ‘‘9:00 a.m. on Thursday, January vince you, after the parties have made States. If you have a bank robbery 23, 2020’’. their presentation—which they will trial or you have a trial where some- On page 2, line 15, strike ‘‘Wednesday, Jan- have 24 hours to do—as to the prelimi- body is stealing a piece of mail, you uary 22, 2020’’ and insert ‘‘Thursday, January nary question of whether it shall be in could get live witnesses. But to im- 23, 2020’’. order to consider and debate any mo- peach the President of the United The CHIEF JUSTICE. The amend- tion to subpoena witnesses or docu- States, they are saying: No, we don’t ment is arguable by the parties for 2 ments. need to see their credibility. hours, equally divided. Those were precisely the Clinton Is that really where we are here to- Mr. Manager SCHIFF, are you a pro- rules—actually, stronger than the Clin- night? Is that what the American peo- ponent of this amendment? ton rules. Those rules, as I have indi- ple expect of a fair trial? I don’t think Mr. Manager SCHIFF. Mr. Chief Jus- cated before, passed 100 to 0. We think it is. tice, I am a proponent. that the resolution strikes the appro- I yield back. The CHIEF JUSTICE. Mr. Cipollone, priate balance, and we urge that the The CHIEF JUSTICE. The majority are you a proponent or an opponent of amendment be rejected. leader is recognized. this amendment? I yield my time. MOTION TO TABLE Mr. Counsel CIPOLLONE. Mr. Chief The CHIEF JUSTICE. Thank you, Mr. MCCONNELL. Mr. Chief Justice, Justice, I am an opponent. counsel. I move to table the amendment and The CHIEF JUSTICE. Okay. Mr. SCHIFF, you have 57 minutes. ask for the yeas and nays. Mr. SCHIFF, you may proceed and re- Mr. Manager SCHIFF. Don’t worry. I The CHIEF JUSTICE. Is there a suffi- serve time for rebuttal if you wish. won’t use it. cient second? Mr. Manager SCHIFF. Thank you, I will say only that if there were any There appears to be a sufficient sec- Mr. Chief Justice. veneer left to camouflage where the ond. This amendment is quite simple. President’s counsel is really coming The clerk will call the roll. Under the McConnell resolution, the The senior assistant legislative clerk from, the veneer is completely gone parties file motions tomorrow at 9 called the roll. now. After saying we are going to have a.m.—written motions, that is—and The PRESIDING OFFICER. Are there the responding party has to file their an opportunity to have a vote on these any other Senators in the Chamber de- witnesses later, now they are saying: reply 2 hours later. That really doesn’t siring to vote? give anybody enough time to respond No, you are just going to have a vote The result was announced—yeas 53, on whether to debate having a vote on to a written motion. nays 47, as follows: When the President’s team filed, for the witnesses. [Rollcall Vote No. 23 Leg.] example, their trial brief, it was over The camouflage was pretty thin to YEAS—53 begin with, but it is completely gone 100 pages. We at least had 24 hours to Alexander Fischer Perdue file our reply, and that is all we would now. Barrasso Gardner Portman What they really want is to get to ask for. In the Clinton trial—again, if Blackburn Graham Risch we are interested in the Clinton case— that generic debate about whether or Blunt Grassley Roberts not to have a debate on witnesses and Boozman Hawley Romney they had 41 hours to respond to written Braun Hoeven have you vote it down so you never ac- Rounds motions. We are not asking for 41 Burr Hyde-Smith Rubio hours, but we are asking for enough tually have to vote to refuse these wit- Capito Inhofe Sasse Cassidy Johnson time to write a decent response to a nesses, although you had to do that to- Scott (FL) Collins Kennedy motion. night. I don’t see what purpose that Scott (SC) Cornyn Lankford That is essentially it, and I would serves except, I suppose, to put one Shelby Cotton Lee hope that we could agree at least on more layer in the way of account- Cramer Loeffler Sullivan Thune this. ability. Crapo McConnell Cruz McSally Tillis I reserve the balance of my time. But the veneer is gone. All this prom- Daines Moran Toomey The CHIEF JUSTICE. Mr. Sekulow. ise about ‘‘You are going to get that Enzi Murkowski Wicker Mr. Counsel SEKULOW. Thank you, Ernst Paul Young opportunity, it is just a question of Mr. Chief Justice and Members of the when’’—no, the whole goal is for you to NAYS—47 Senate. never get the chance to take that vote. Baldwin Hassan Rosen So it seems like tomorrow is a day And what is more, the vote on this res- Bennet Heinrich Sanders off according to your procedure; is that olution is a vote that says that you Blumenthal Hirono Schatz Booker Jones correct, Mr. SCHIFF? don’t want to hear from these wit- Schumer Brown Kaine Shaheen Mr. Manager SCHIFF. I forgot the nesses yourself. You don’t want to Cantwell King Sinema time. evaluate the credibility of these wit- Cardin Klobuchar Smith Mr. Counsel SEKULOW. Today is to- nesses yourself. Maybe—just maybe— Carper Leahy Stabenow Casey Manchin morrow, and tomorrow is today. The Tester you will let them be deposed, but you Coons Markey answer is that we are ready to proceed. Udall Cortez Masto Menendez don’t want to hear them yourself. You Van Hollen We will respond to any motions. We don’t want to see these witnesses put Duckworth Merkley Durbin Murphy Warner would ask the Chamber to reject this up their hand and take an oath. Feinstein Murray Warren amendment. I don’t know what the rules of these Gillibrand Peters Whitehouse The CHIEF JUSTICE. Mr. SCHIFF, depositions are going to be. Maybe the Harris Reed Wyden there are 59 minutes remaining. public isn’t going to ever get to see The motion to table is agreed to; the Mr. Manager SCHIFF. I yield back what happens in those depositions. We amendment is tabled. our time. released all the deposition transcripts The CHIEF JUSTICE. The Demo- The CHIEF JUSTICE. The majority from our depositions—the secret 100- cratic leader is recognized. leader is recognized.

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00143 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.100 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S430 CONGRESSIONAL RECORD — SENATE January 21, 2020 MOTION TO TABLE The CHIEF JUSTICE. Mr. Cipollone, Mr. Manager SCHIFF. Well, this is a Mr. MCCONNELL. Mr. Chief Justice, are you a proponent or an opponent of good note to conclude on because don’t I move to table the amendment. the motion? let it be said we haven’t made progress The CHIEF JUSTICE. Is there a suffi- Mr. Counsel CIPOLLONE. Mr. Chief today. cient second? Justice, I am an opponent. The President’s counsel has just ac- There is a sufficient second. The CHIEF JUSTICE. Mr. SCHIFF, knowledged for the first time that this The clerk will call the roll. you may proceed and reserve time for is not an appellate court. I am glad we The senior assistant legislative clerk rebuttal. have established that. This is the trial, called the roll. Mr. Manager SCHIFF. Senators, this not the appeal, and the trial ought to The result was announced—yeas 52, amendment would provide that the have witnesses and the trial should be nays 48, as follows: Presiding Officer shall rule to author- based on the cold record from the court [Rollcall Vote No. 24 Leg.] ize the subpoena of any witness or any below, but there is no court below, be- document that a Senator or a party cause, as the counsel has just admit- YEAS—52 moves to subpoena if the Presiding Of- ted, you are not the appellate court. Alexander Gardner Portman ficer determines that that witness is But I think what we have also seen Barrasso Graham Risch Blackburn Grassley Roberts likely to have probative evidence rel- here tonight is, they not only don’t Blunt Hawley Romney evant to either Article of Impeach- want you to hear these witnesses, they Boozman Hoeven Rounds ment. don’t want to hear them live. They Braun Hyde-Smith Rubio Burr Inhofe It is quite simple. It would allow the don’t want even really to hear them de- Sasse Chief Justice and it would allow Sen- posed. They don’t want a neutral Jus- Capito Johnson Scott (FL) Cassidy Kennedy Scott (SC) ators, the House managers, and the tice to weigh in because if the neutral Cornyn Lankford Shelby President’s counsel to make use of the Justice weighs in and says: You know, Cotton Lee Sullivan Cramer Loeffler experience of the Chief Justice of the pretty hard to argue that John Bolton Crapo McConnell Thune Supreme Court to decide the questions is not relevant here, pretty hard to Cruz McSally Tillis of the relevance of witnesses. Either argue that Mick Mulvaney is not rel- Daines Moran Toomey Enzi Murkowski Wicker party can call the witnesses, and if we evant here—I just watched that video- Ernst Paul Young can’t come to an agreement on wit- tape where he said he discussed this Fischer Perdue nesses ourselves, we will pick a neutral with the President. They are con- NAYS—48 arbiter, that being the Chief Justice of testing it. Pretty relevant. the Supreme Court. If the Chief Justice What about Hunter Biden? Hunter Baldwin Harris Reed Bennet Hassan Rosen finds that a witness would be pro- Biden is probably the real reason they Blumenthal Heinrich Sanders bative, that witness would be allowed don’t want the Chief Justice to have to Booker Hirono Schatz to testify. If the Chief Justice finds the rule on the materiality of a witness, Brown Jones Schumer Cantwell Kaine Shaheen testimony would be immaterial, that right? What can Hunter Biden tell us Cardin King Sinema witness would not be allowed to tes- about why the President withheld hun- Carper Klobuchar Smith tify. dreds of millions of dollars from Casey Leahy Stabenow Now, it still maintains the Senate’s Ukraine? I can tell you what he can Collins Manchin Tester Coons Markey Udall tradition that if you don’t agree with tell us—nothing. What does Hunter Cortez Masto Menendez Van Hollen the Chief Justice, you can overrule Biden know about why the President Duckworth Merkley Warner him. If you have the votes, you can wouldn’t meet with President Durbin Murphy Warren Feinstein Murray Whitehouse overrule the Chief Justice and say you Zelensky? He can’t tell us anything Gillibrand Peters Wyden disagree with what the Chief Justice about that. What can he tell us about these Defense Department documents The motion to table is agreed to; the has decided. But it would give this decision to a or OMB documents? What can he tell amendment is tabled. neutral party. That right is extended us about the violation of the law, with- The CHIEF JUSTICE. The Demo- to both parties, who will be done in holding this money? Of course he can’t cratic leader is recognized. line with the schedule that the major- tell us anything about that because his AMENDMENT NO. 1294 ity leader has set out. It is not the testimony is immaterial and irrele- Mr. SCHUMER. Mr. Chief Justice, on schedule we want. We still don’t think vant. The only purpose in calling him behalf of Senator VAN HOLLEN, I send it makes any sense to have the trial is to succeed at what they failed to do an amendment to the desk to help en- and then decide our witnesses. But if earlier in this whole scheme, and that sure impartial justice by requiring the we are going to have to do it that way, is to smear Joe Biden by going after Chief Justice of the United States to and it looks like we are, at least let’s his son. rule on motions to subpoena witnesses have a neutral arbiter decide—much as We trust the Chief Justice of the Su- and documents. I ask that it be read. he may loathe the task—whether a wit- preme Court to make that decision This is our last amendment of the ness is relevant or a witness is not. that he is not a material witness. This evening. We would hope that if there is noth- isn’t like fantasy football here. We are The CHIEF JUSTICE. The clerk will ing else we can agree on tonight, that not making trades—or we shouldn’t be. read the amendment. we could agree to allow the Chief Jus- We will trade you one completely irrel- The senior assistant legislative clerk tice to give us the benefit of his experi- evant, immaterial witness who allows read as follows: ence in deciding which witnesses are us to smear the President’s opponent The Senator from New York [Mr. SCHU- relevant to this inquiry and which wit- in exchange for ones who are really rel- MER], for Mr. VAN HOLLEN, proposes an nesses are not. evant whom you should hear. Is that a amendment numbered 1294. With that, I reserve the balance of fair trial? On page 3, line 20, insert ‘‘The Presiding my time. If you can’t trust the Chief Justice, Officer shall rule to authorize the subpoena The CHIEF JUSTICE. Mr. Sekulow. appointed by a Republican President, of any witness or any document that a Sen- ator or a party moves to subpoena if the Pre- Mr. Counsel SEKULOW. Mr. Chief to make a fair decision about materi- siding Officer determines that the witness or Justice, Members of the Senate, and ality, I think it betrays the weakness document is likely to have probative evi- with no disrespect to the Chief Justice, of your case. dence relevant to either article of impeach- this is not an appellate court. This is Look, I will be honest. There has ment before the Senate.’’ after ‘‘order.’’. the U.S. Senate. There is not an arbi- been some apprehension on our side The CHIEF JUSTICE. The amend- tration clause in the U.S. Constitution. about this idea, but we have confidence ment is arguable by the parties for 2 The Senate shall have the sole power that the Chief Justice would make a hours, equally divided. to try all impeachments. We oppose the fair and impartial decision and that he Mr. Manager SCHIFF, are you a pro- amendment. would do impartial justice, and it is ponent or an opponent of the motion? We yield our time. something that my colleagues rep- Mr. Manager SCHIFF. Mr. Chief Jus- The CHIEF JUSTICE. Mr. SCHIFF, resenting the President don’t. They tice, I am a proponent. you have 57 minutes remaining. don’t. They don’t want a fair judicial

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00144 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.103 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S431 ruling about this. They don’t want one Mr. THUNE. Mr. Chief Justice, I ask Life. This year’s theme is ‘‘Life Em- that you could overturn because they for yeas and nays. powers: Pro-Life is Pro-Woman.’’ This don’t want a fair trial. The CHIEF JUSTICE. There is a suf- theme recognizes that 2020 is the cen- And so we end where we started— ficient second. tennial anniversary of the 19th amend- with one party wanting a fair trial and The clerk will call the roll. ment. The earliest feminists regarded one party that doesn’t; one party that The senior assistant legislative clerk abortion as a terrible consequence of doesn’t fear a fair trial and one party called the roll. our society’s failure to embrace wom- that is terrified of a fair trial. The CHIEF JUSTICE. Are there any en’s intrinsic value. These women in- I yield back. other Senators in the Chamber desiring stinctively embraced the sanctity of The CHIEF JUSTICE. The majority to vote? innocent human life, even though they leader is recognized. The result was announced—yeas 53, could not have foreseen the advances in MOTION TO TABLE nays 47, as follows: technology that have made it possible Mr. MCCONNELL. Mr. Chief Justice, [Rollcall Vote No. 26 Leg.] for newborn babies to survive at earlier I make a motion to table the amend- YEAS—53 and earlier stages of fetal development. ment, and I ask for the yeas and nays. Alexander Fischer Perdue Two examples of such miracle babies The CHIEF JUSTICE. Is there a suffi- Barrasso Gardner Portman are Micah Pickering of Iowa, born pre- Blackburn Graham Risch maturely at 22 weeks gestation, who is cient second? Blunt Grassley Roberts now 7 years old, and Jaden Wesley Mor- There appears to be a sufficient sec- Boozman Hawley Romney ond. Braun Hoeven Rounds row, born at 23 weeks gestation, who The clerk will call the roll. Burr Hyde-Smith Rubio died a few weeks after his birth in Des Capito Inhofe Sasse Moines last year. We today celebrate The senior assistant legislative clerk Cassidy Johnson Scott (FL) Collins Kennedy the lives of these miracle babies, recalled the roll. Scott (SC) Cornyn Lankford member all the others who were lost to The CHIEF JUSTICE. Are there any Shelby Cotton Lee abortion, and focus on how women are other Senators in the Chamber desiring Cramer Loeffler Sullivan to vote? Crapo McConnell Thune empowered by upholding the dignity of The result was announced—yeas 53, Cruz McSally Tillis life. Toomey nays 47, as follows: Daines Moran f Enzi Murkowski Wicker [Rollcall Vote No. 25 Leg.] Ernst Paul Young IMPEACHMENT YEAS—53 NAYS—47 Mrs. BLACKBURN. Mr. President, Alexander Fischer Perdue Baldwin Hassan Rosen today the Senate begins in earnest our Barrasso Gardner Portman Bennet Heinrich Sanders efforts to determine if our colleagues Blackburn Graham Risch Blumenthal Hirono Schatz Blunt Grassley in the House of Representatives have Roberts Booker Jones Boozman Hawley Schumer Romney Brown Kaine compiled sufficient evidence to justify Braun Hoeven Shaheen Rounds Cantwell King removing a sitting President from of- Burr Hyde-Smith Sinema Rubio Cardin Klobuchar Capito Inhofe Smith fice. This is no small task, and it will Sasse Carper Leahy Cassidy Johnson Stabenow Scott (FL) Casey Manchin be made more difficult by the swirl of Collins Kennedy Tester Scott (SC) Coons Markey commentary that has engulfed the im- Cornyn Lankford Udall Shelby Cortez Masto Menendez peachment inquiry since well before it Cotton Lee Van Hollen Duckworth Merkley Cramer Loeffler Sullivan was officially initiated. Durbin Murphy Warner Crapo McConnell Thune Feinstein Murray Warren Much has been made of our debate Cruz McSally Tillis Gillibrand Peters Whitehouse over the inclusion of additional witness Daines Moran Toomey Harris Reed Wyden testimony into the prosecution’s case Enzi Murkowski Wicker Ernst Paul Young The CHIEF JUSTICE. The yeas are against President Donald John Trump—so much, in fact, that many of NAYS—47 53, and the nays are 47. The resolution (S. Res. 483) was my colleagues are inclined to allow Baldwin Hassan Rosen that testimony in the name of bipar- Bennet Heinrich Sanders agreed to. Blumenthal Hirono Schatz (The resolution is printed in today’s tisan compromise. How misguided of Booker Jones Schumer RECORD under ‘‘Submitted Resolu- them. Such a move would open the Brown Kaine Shaheen tions.’’) floodgates to a parade of politically- Cantwell King Sinema Cardin Klobuchar f motivated testimony, a protracted Smith legal battle, and ultimately unjustified Carper Leahy Stabenow Casey Manchin MORNING BUSINESS Tester impeachment proceedings in the U.S. Coons Markey Udall Senate. Cortez Masto Menendez Van Hollen The Democratic Members of the Duckworth Merkley CELEBRATION OF LIFE DAY Durbin Murphy Warner House of Representatives spent a great Feinstein Murray Warren Mr. GRASSLEY. Mr. President, Jan- deal of their time and energy holding Gillibrand Peters Whitehouse uary 22 is celebration of life day, and I hearings, interviewing witnesses, and Harris Wyden Reed wanted to take that opportunity to putting together what they have in- The motion to table is agreed to; the recognize women facing unplanned sisted is their best, ironclad case amendment is tabled. pregnancies or parenting young chil- against President Trump. I encourage Mr. MCCONNELL. Mr. Chief Justice. dren. Women with unplanned preg- my colleagues to resist allowing an ad- The CHIEF JUSTICE. The majority nancies sometimes lack access to additional, cathartic airing of grievances leader is recognized. vice and support. They deserve the and instead accept that it is now the Mr. MCCONNELL. Mr. Chief Justice, backing of their community and access Senate’s turn to listen to the facts as I would like to say, on behalf of all of to information, resources, and quality they are presented, deliberate, and cast us, we want to thank you for your pa- care. In Iowa, programs like Ruth Har- a final vote. tience. bor in Des Moines provide a safe place f (Applause.) for young women, giving them coun- The CHIEF JUSTICE. Comes with seling, education support, life-skills TRIBUTE TO DR. JAMES the job. Please. training, parenting training, adoption NARAMORE Mr. MCCONNELL. On scheduling, as- assistance, and access to health care at Mr. ENZI. Mr. President, I rise today suming there are no more amendments, no cost. Programs like these are crit- to acknowledge the retirement of my the next vote will be on adoption of the ical. friend, Dr. Jim Naramore. Dr. resolution, and then all Senators f Naramore is retiring after 40 years of should stay in their seats until the service practicing family medicine in trial is adjourned for the evening. 47TH ANNUAL MARCH FOR LIFE Gillette, WY. He has been an out- The CHIEF JUSTICE. The question is Mr. GRASSLEY. Mr. President, Fri- standing doctor to many patients in on adoption of S. Res. 483. day marks the 47th annual March for Gillette, including myself, and will be

VerDate Sep 11 2014 20:26 Feb 11, 2020 Jkt 099060 PO 00000 Frm 00145 Fmt 4624 Sfmt 0634 E:\RECORD20\JANUARY\S21JA0.REC S21JA0 sradovich on DSKJLST7X2PROD with CONG-REC-ONLINE S432 CONGRESSIONAL RECORD — SENATE January 21, 2020 remembered for his excellence in med- Tribal service were as dynamic as Rick well as the countless many whose lives ical care and helping out in the com- himself. Grandson of Dr. Lillie Rosa he touched in immeasurable ways. To munity. Minoka-Hill—only the second indige- all who knew him, Rick will be remem- I know Dr. Naramore not only as a nous female doctor in America—Rick bered as a visionary, full of brilliance leader in my hometown of Gillette but was destined to live an exceptional life. and fortitude, with the resolve pos- also as my personal doctor. About 25 Early on, Rick proved to be an elite sessed by the few, true champions of years ago, I wasn’t feeling well and athlete, earning the title of West De our times. He will also be remembered went to see Dr. Naramore. He ran some Pere High School Athlete of the Year as a calm, quiet presence, generous tests and soon discovered that I had a in 1971. In keeping with Wisconsin tra- with his laughter and jokes, with a torn heart valve. By that night, I was dition, his favorite sport was football. heart full of devotion to those he in open heart surgery to repair my He would later serve as executive pro- served. I will be forever grateful that heart valve, and it has served me well ducer of a film still in production, enti- Rick’s legacy will live on in the pride since. I credit Dr. Naramore with sav- tled ‘‘Bright Path: The Story of Jim of the Native peoples he championed ing my life. Thorpe,’’ honoring the NFL Hall-of- and forever honored to call him my Dr. Naramore has spent his entire ca- Famer and America’s first Native ath- friend. reer helping people and giving back to lete to win an Olympic Gold Medal. His f the community. Born and raised in Gil- natural strength and enduring achieve- lette, WY, Dr. Naramore received his REMEMBERING RONALD ‘‘RON’’ ments in athletic competition were McCREA bachelor’s degree from John Brown precursors to the successes that would University, his medical degree from eventually define his true legacy: his Ms. BALDWIN. Mr. President, I rise the University of Utah, and completed tireless, unbeatable, loving dedication today to honor a distinguished citizen a family practice residency at the Uni- to the advancement of Native commu- of Wisconsin, Ronald Alan McCrea, who versity of Nebraska affiliated hos- nities. passed away in Madison on Dec. 14, pitals. After his residency, Dr. At age 23, influenced by his time 2019. McCrea’s career included praise- Naramore returned to Gillette to work spent attending Tribal meetings with worthy journalism, architectural in the emergency room at the Camp- his father, Rick became the youngest scholarship on Frank Lloyd Wright, bell County Memorial Hospital. person to serve on Oneida’s Tribal and gay activism. Ron McCrea came from a family of In 1980, Dr. Naramore began his prac- Council. He would serve two terms as journalists. His grandfather, Archie tice and became a full-time member of chairman of the Oneida Nation, from McCrea, was editor of the Muskegon the medical staff of Campbell County 1990 to 1993 and from 2008 to 2011. His Chronicle in Michigan, and his father Memorial Hospital. In 1981, he moved first term brought the first gaming was an editor for the Saginaw News to private practice at Family Health in compact between the Oneida Nation and Toledo Blade. Ron began his jour- Gillette. His family health clinic has and the State of Wisconsin, a major nalism career editing his high school provided excellent care to residents of milestone that would reshape the eco- paper, the Arthur Hill News. He would Gillette for years and has attracted nomic future of the Oneida. Gaming to much needed providers and specialists also edit the Albion College Pleiad. He Rick was more than a business venture to the area. worked at the Boston Globe, the Wash- or a path to profit—the advancement of Dr. Naramore has served in countless ington Post, the Washington Star, the leadership positions both in Gillette gaming was the continuation of the Long Island Newsday, and the San Jose and around Wyoming. He has received fight for the sovereignty, empower- Mercury News. Ron was one of the out- many awards for his hard work and ment, and advancement of all Native standing journalists in Madison, where outstanding achievements, most re- peoples from coast to coast. Gaming he served as an editor and reporter at cently receiving the 2019 Outstanding brought revenue for healthcare, em- the Capital Times from 1970 to 1977 and Healthcare Award. Dr. Naramore is a ployment, education, and a host of again from 1998 to 2008. While in Madi- committed man of faith. He is actively other basic services crucial to inde- son, he was also an editor of the Press involved in his church, serving as an pendence. Connection from 1977 to 1980, the paper elder, deacon, worship leader, and Sun- Not surprisingly, in 1993, while still that emerged from a newspaper strike day school teacher. serving as chairman of the Oneida Na- that he helped lead. The University of Wyoming has a slo- tion, Rick became chairman of the Na- Ron graduated from Albion College gan saying that the world needs more tional Indian Gaming Association, in 1965 with a B.A. in political science. cowboys. Well, I would also say that NIGA, a position he would hold until He was awarded an M.A. from the Wyoming needs more doctors, espe- 2001. Rick flourished in this role: he Fletcher School of Law and Diplomacy cially doctors like Dr. Naramore. If his rallied and unified other Native Tribes at Tufts University and did further past is any indication of his future, I to the cause, tirelessly traveling to graduate work at the Medill School of think it is clear that he will be closing promote Indian gaming both inside the Journalism at Northwestern Univer- the door on this great chapter of his courtroom and in discussions with Gov- sity. life and moving on to something new. ernors and U.S. Senators. His gay activism began in the early Whatever that may prove to be, I am Even outside of his official service in 1970s when he joined the Wisconsin’s certain it will make good use of his the Oneida Nation and the NIGA, first gay rights organization, the Madi- abilities, background, and experience. Rick’s entrepreneurial efforts to lift up son Alliance for Homosexual Equality, Diana joins in sending our best wishes and diversify Native economies made MAHE, which was founded in the fall of to Dr. Naramore and his family. We history. His unique ability to unify 1969 after the Stonewall Riots. Ron thank him for his hard work and dedi- Tribes in pursuit of common goals was participated in panels that the early cation to his patients and community best exemplified by the creation of Gay Center sent out to classes on the throughout his career. Four Fires, LLC. This four-Tribe part- University of Wisconsin-Madison cam- nership, the first inter-Tribal economic f pus. In line with his labor activism, he undertaking of its kind in history, cul- successfully lobbied for the Newspaper REMEMBERING RICHARD ‘‘RICK’’ minated in the creation of a $43 million Guild to include nondiscrimination on GRAHAM HILL development located a short walk from the basis of sexual orientation in its Ms. BALDWIN. Mr. President, I rise our Nation’s Capitol and only three model contract used throughout the today to honor the life and legacy of blocks from the Smithsonian National Nation. Mr. Richard ‘‘Rick’’ Graham Hill, re- Museum of the American Indian. This When elected in 1982, Governor An- vered leader of the Oneida Nation of is the first Tribally owned enterprise in thony Earl asked Ron to serve as his Wisconsin, whose tireless work on be- Washington, DC. press secretary. Because of his advo- half of all Native peoples will be hon- Rick’s memory will be kept alive by cacy, one of the State’s major papers ored, admired, and emulated for gen- his three sons, Richard Graham headlined the appointment of an erations to come. Lo’nikuhliyo’stu, Jr., aka Lotni; Sage ‘‘Avowed Homosexual.’’ Earl refused Rick’s work and accomplishments McKinney Lolihwaka´ .te Hill; and Da- McCrea’s offer to withdraw the ap- throughout his lifelong dedication to kota Grahame Tehokahtlu’.ni Hill, as pointment as too controversial.

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00146 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.139 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S433 During his journalism career, Ron Jeff Aulbech and Mike Jacobson con- Under the authority of the order of McCrea became the chronicler of some tinued working the emergency situa- the Senate of January 3, 2019, as modi- unique LGBT history in the Madison tion. Jeff and Mike promptly evaluated fied by the order of January 16, 2020, area. One of his earliest efforts in- their options. They decided the best the Secretary of the Senate, on Janu- cluded stories on the hidden 1962 Gay course was to divert a flight of KC–135 ary 21, 2020, during the adjournment of Purge at the UW-Madison. He also con- tankers from a nearby, unrelated mis- the Senate, received a message from tributed many unique items to the sion and to conduct a mid-air refueling. the House of Representatives announc- LGBT Collection of the UW-Madison Jeff explained to the KC–135 pilots that ing that pursuant to 15 U.S.C. 1024(a), Archives. the F–16 was at ‘‘Bingo Fuel’’—a term and the order of the House of January Ron loved a good story and enter- used by military pilots when they 3, 2019, the Speaker appointed the fol- tained many of his friends with his de- reach a critical and emergency fuel lowing Member on the part of the lightful skill in presenting a tale. He state. When he secured agreement from House of Representatives to the Joint had a deep love of music and was both crews, Jeff executed precise time Economic Committee: Mrs. Carolyn B. known for singing with Madison choral intercept vectors to join the two air- Maloney of New York, to rank after groups and tripping the ivories at the craft and begin refueling. As Jeff Mr. Beyer of Virginia. piano bar at Going My Way. worked with the aircraft in the sky, f Ron is survived by his wife of 26 Mike worked the radar and commu- years, Elaine DeSmidt, and his stepson, EXECUTIVE AND OTHER nicated with the airport in Syracuse to COMMUNICATIONS Benjamin DeSmidt. Elaine, described confirm suitable landing conditions. A as his partner, passion and love, was The following communications were short time later, the F–16 safely laid before the Senate, together with also involved in public life as an elect- touched the ground in Syracuse. ed member of the Dane County Board accompanying papers, reports, and doc- Quick thinking and error-free execu- uments, and were referred as indicated: of Supervisors. tion from Neil Co´ spito, Jeff Aulbech, Ron McCrea was an accomplished EC–3777. A communication from the and Mike Jacobson saved the F–16 and storyteller, a humorous character, and Chief Counsel, Federal Emergency its pilot from a number of dangerous a courageous pioneer. He leaves behind Management Agency, Department of alternatives, and they played a pivotal a legacy of humble but bold encourage- Homeland Security, transmitting, pur- role in maneuvering this flawless re- ment of the gay community. I am suant to law, the report of a rule enti- fueling with a number of other planes proud to honor his unflinching advo- tled ‘‘Suspension of Community Eligi- cacy, personal kindness, and steadfast sharing the skies. As many of us travel bility’’ ((44 CFR Part 64) (Docket No. leadership. across the country throughout the FEMA–2019–0003)) received in the Office year, we should take a moment to re- f of the President of the Senate on Janu- flect on the significance of air traffic ary 16, 2020; to the Committee on Bank- ADDITIONAL STATEMENTS controllers like Neil, Jeff, and Mike ing, Housing, and Urban Affairs. and thank them for working every EC–3778. A communication from the minute of every day each year to keep Senior Legal Advisor for Regulatory TRIBUTE TO JEFF AULBECH, NEIL our skies safe. CO´ SPITO, AND MICHAEL JACOBSON Affairs, Financial Stability Oversight On behalf of the people of New Hamp- Council, transmitting, pursuant to law, ∑ Mrs. SHAHEEN. Mr. President, I rise shire, I ask my colleagues and all the report of a rule entitled ‘‘Authority today to salute the work of three New Americans to join me in thanking Neil, to Require Supervision and Regulation Hampshire-based air traffic control- Jeff, and Mike for their service and of Certain Nonbank Financial Compa- lers—Jeff Aulbech, Neil Co´ spito, and wishing them all the best as they con- nies’’ (RIN4030–ZA00) received in the Michael Jacobson—who calmly and tinue their good work.∑ Office of the President of the Senate on quickly resolved a complex situation in f January 15, 2020; to the Committee on the snowy skies of New England in 2018. Banking, Housing, and Urban Affairs . The three men were awarded the pres- MESSAGE FROM THE HOUSE EC–3779. A communication from the tigious Archie League Medal of Safety RECEIVED DURING ADJOURNMENT Attorney-Advisor, Office of General Award from the National Air Traffic ENROLLED BILL SIGNED Counsel, Department of Transpor- Controllers Association, NATCA, last Under the authority of the order of tation, transmitting, pursuant to law, year, and I ask all Americans to join the Senate of January 3, 2019, as modi- a report relative to a vacancy for the me and NATCA in marveling at the fied by the order of January 16, 2020, position of Administrator, Federal poise they all showed on that Novem- the Secretary of the Senate, on Janu- Transit Administration, Department of ber afternoon. ary 21, 2020, during the adjournment of Transportation, received in the Office Jeff, Neil and Michael work at the of the President of the Senate on Janu- Boston Air Traffic Control Center, a re- the Senate, received a message from the House of Representatives announc- ary 15, 2020; to the Committee on Bank- gional air route traffic control center ing, Housing, and Urban Affairs. in Nashua, NH, that covers tens of ing that the Speaker had signed the following enrolled bill: EC–3780. A communication from the thousands of miles of airspace above Secretary, Securities and Exchange H.R. 5430. An act to implement the Agree- New England, New York, and northeast Commission, transmitting, pursuant to Pennsylvania. On Tuesday, November ment between the United States of America, the United Mexican States, and Canada at- law, the report of a rule entitled ‘‘Ad- 20, 2018, Neil was working an F–16 air- tached as an Annex to the Protocol Replac- justments to Civil Monetary Penalty craft from the 158th Fighter Wing of ing the North American Free Trade Agree- Amounts’’ (Rel. Nos. 33–10740; 34–87905; the Vermont Air National Guard. Poor ment. IA–5428; IC–33740) received in the Office weather conditions were preventing the Under the authority of the order of of the President of the Senate on Janu- pilot from landing the aircraft at its the Senate of January 3, 2019, as modi- ary 15, 2020; to the Committee on Bank- home base in Burlington, VT. Neil fied by the order of January 16, 2020, ing, Housing, and Urban Affairs. scoured the region for a suitable loca- the Secretary of the Senate, on Janu- EC–3781. A communication from the tion outside of the sprawling weather ary 21, 2020, during the adjournment of Management and Program Analyst, system, and he quickly found one in the Senate, received a message from Federal Aviation Administration, De- Syracuse, NY. He cleared the aircraft the House of Representatives announc- partment of Transportation, transmit- to travel southwest to its new destina- ing that the House had passed the fol- ting, pursuant to law, the report of a tion and asked the pilot to estimate his lowing joint resolution, in which it re- rule entitled ‘‘Standard Instrument time en-route and his remaining fuel. quests the concurrence of the Senate: Approach Procedures; Miscellaneous When the pilot relayed that he had 15 Amendments (49); Amendment No. H.J. Res. 76. Joint resolution providing for minutes of fuel for a 15–minute trip, congressional disapproval under chapter 8 of 3885’’ ((RIN2120–AA65) (Docket No. Neil knew that the F–16 had become an title 5, United States Code, of the rule sub- 31289)) received in the Office of the emergency aircraft. mitted by the Department of Education re- President of the Senate on January 16, As the aircraft left Neil’s controlled lating to ‘‘Borrower Defense Institutional 2020; to the Committee on Commerce, airspace, fellow air traffic controllers Accountability’’. Science, and Transportation.

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00147 Fmt 4624 Sfmt 0634 E:\CR\FM\G21JA6.082 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S434 CONGRESSIONAL RECORD — SENATE January 21, 2020 EC–3782. A communication from the rule entitled ‘‘Amendment of Class D and Worker’s Compensation Settle- Management and Program Analyst, and Class E Airspace; Eagle County, ment Recovery Threshold’’; to the Federal Aviation Administration, De- CO’’ ((RIN2120–AA66) (Docket No. FAA– Committee on Finance. partment of Transportation, transmit- 2019–0637)) received in the Office of the EC–3795. A communication from the ting, pursuant to law, the report of a President of the Senate on January 16, Senior Advisor, Department of Health rule entitled ‘‘Airworthiness Direc- 2020; to the Committee on Commerce, and Human Services, transmitting, tives; The Boeing Company Airplanes’’ Science, and Transportation. pursuant to law, a report relative to a ((RIN2120–AA64) (Docket No. FAA–2019– EC–3789. A communication from the vacancy in the position of Inspector 0326)) received in the Office of the Attorney-Advisor, Office of General General, Department of Health and President of the Senate on January 16, Counsel, Department of Transpor- Human Services, received in the Office 2020; to the Committee on Commerce, tation, transmitting, pursuant to law, of the President of the Senate on Janu- Science, and Transportation. a report relative to a vacancy in the ary 15, 2020; to the Committee on Fi- EC–3783. A communication from the position of Assistant Secretary for nance. Management and Program Analyst, Transportation Policy, Department of EC–3796. A communication from the Federal Aviation Administration, De- Transportation, received in the Office General Counsel, Government Account- partment of Transportation, transmit- of the President of the Senate on Janu- ability Office, transmitting, pursuant ting, pursuant to law, the report of a ary 15, 2020; to the Committee on Com- to law, a report entitled ‘‘Office of rule entitled ‘‘Airworthiness Direc- merce, Science, and Transportation. Management and Budget - Withholding tives; Airbus SAS Airplanes’’ EC–3790. A communication from the of Ukraine Security Assistance’’; to ((RIN2120–AA64) (Docket No. FAA–2016– Attorney-Advisor, Office of General the Committee on Foreign Relations. 6144)) received in the Office of the Counsel, Department of Transpor- EC–3797. A communication from the President of the Senate on January 16, tation, transmitting, pursuant to law, Assistant Legal Adviser for Treaty Af- 2020; to the Committee on Commerce, a report relative to a vacancy in the fairs, Department of State, transmit- Science, and Transportation. position of Assistant Secretary for Re- ting, pursuant to the Case-Zablocki EC–3784. A communication from the search and Technology, Department of Act, 1 U.S.C. 112b, as amended, the re- Management and Program Analyst, Transportation, received in the Office port of the texts and background state- Federal Aviation Administration, De- of the President of the Senate on Janu- ments of international agreements, partment of Transportation, transmit- ary 15, 2020; to the Committee on Com- other than treaties (List 2020–0001 - ting, pursuant to law, the report of a merce, Science, and Transportation. 2020–0003); to the Committee on For- rule entitled ‘‘Airworthiness Direc- EC–3791. A communication from the eign Relations. EC–3798. A communication from the tives; Airbus SAS Airplanes’’ Director of the Regulatory Manage- Director, Office of Government Ethics, ((RIN2120–AA64) (Docket No. FAA–2019– ment Division, Environmental Protec- transmitting, pursuant to law, the re- 0609)) received in the Office of the tion Agency, transmitting, pursuant to port of a rule entitled ‘‘2020 Civil Mone- President of the Senate on January 16, law, the report of a rule entitled ‘‘Ap- tary Penalties Inflation Adjustments 2020; to the Committee on Commerce, proval and Conditional Approval of for Ethics in Government Act Viola- California Air Plan Revision; Imperial Science, and Transportation. tions’’ (RIN3209–AA49) received in the EC–3785. A communication from the County Air Pollution Control District; Office of the President of the Senate on Management and Program Analyst, Reasonably Available Control Tech- January 15, 2020; to the Committee on Federal Aviation Administration, De- nology (RACT)’’ (FRL No . 10004–30–Re- Homeland Security and Governmental partment of Transportation, transmit- gion 9) received in the Office of the Affairs. ting, pursuant to law, the report of a President of the Senate on January 16, EC–3799. A communication from the rule entitled ‘‘Amendment of Class E 2020; to the Committee on Environment Secretary, Judicial Conference of the Airspace; Walla Walla, WA’’ ((RIN2120– and Public Works. United States, transmitting, pursuant AA66) (Docket No. FAA–2019–0679)) re- EC–3792. A communication from the to law, a report entitled ‘‘Report of the ceived in the Office of the President of Director of the Regulatory Manage- Proceedings of the Judicial Conference the Senate on January 16, 2020; to the ment Division, Environmental Protec- of the United States’’ for the Sep- Committee on Commerce, Science, and tion Agency, transmitting, pursuant to tember 2019 session; to the Committee Transportation. law, the report of a rule entitled ‘‘Ap- on the Judiciary. EC–3786. A communication from the proval and Promulgation of Air Qual- EC–3800. A communication from the Management and Program Analyst, ity Implementation Plans; District of Associate General Counsel for General Federal Aviation Administration, De- Columbia; Infrastructure Requirements Law, Department of Homeland Secu- partment of Transportation, transmit- for the 2015 Ozone National Ambient rity, transmitting, pursuant to law, a ting, pursuant to law, the report of a Air Quality Standard’’ (FRL No. 10004– report relative to a vancancy in the po- rule entitled ‘‘IFR Altitudes; Miscella- 09–Region 3) received in the Office of sition of Director, U.S. Citizenship and neous Amendments’’ ((RIN2120–AA63) the President of the Senate on January Immigration Services, Department of (Docket No. 31291)) received in the Of- 16, 2020; to the Committee on Com- Homeland Security, received in the Of- fice of the President of the Senate on merce, Science, and Transportation. fice of the President of the Senate on January 16, 2020; to the Committee on EC–3793. A communication from the January 16, 2020; to the Committee on Commerce, Science, and Transpor- Director of the Regulatory Manage- the Judiciary. tation. ment Division, Environmental Protec- EC–3787. A communication from the tion Agency, transmitting, pursuant to f Management and Program Analyst, law, the report of a rule entitled ‘‘Ex- INTRODUCTION OF BILLS AND Federal Aviation Administration, De- tension of Time-Limited Tolerances for JOINT RESOLUTIONS partment of Transportation, transmit- Emergency Exemptions (Multiple The following bills and joint resolu- ting, pursuant to law, the report of a Chemicals, Various Commodities)’’ tions were introduced, read the first rule entitled ‘‘Standard Instrument (FRL No. 10002–88–OCSPP) received in and second times by unanimous con- Approach Procedures; Miscellaneous the Office of the President of the Sen- sent, and referred as indicated: Amendments (24); Amendment No. ate on January 16, 2020; to the Commit- By Mr. MARKEY (for himself, Ms. 3886’’ ((RIN2120–AA65) (Docket No. tees on Environment and Public BALDWIN, Ms. SMITH, Mr. CARDIN, Mr. 31290)) received in the Office of the Works; and Agriculture, Nutrition, and VAN HOLLEN, Mr. SANDERS, Mr. MUR- President of the Senate on January 16, Forestry. PHY, Ms. HASSAN, Mr. MERKLEY, Mrs. 2020; to the Committee on Commerce, EC–3794. A communication from the SHAHEEN, Mr. BLUMENTHAL, Mr. Science, and Transportation. Acting Assistant Secretary for Legisla- WYDEN, Mrs. GILLIBRAND, Ms. HIRONO, EC–3788. A communication from the tion, Department of Health and Human Ms. WARREN, and Ms. KLOBUCHAR): S. 3218. A bill to amend the Communica- Management and Program Analyst, Services, transmitting, pursuant to tions Act of 1934 to modify the definition of Federal Aviation Administration, De- law, a report entitled ‘‘Computation of franchise fee, and for other purposes; to the partment of Transportation, transmit- Annual Liability Insurance (Including Committee on Commerce, Science, and ting, pursuant to law, the report of a Self-Insurance), No-Fault Insurance, Transportation.

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00148 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.143 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S435 By Mr. SANDERS: Committee on Health, Education, Labor, and of suicide prevention services for vet- S. 3219. A bill to ensure full labor protec- Pensions. erans at risk of suicide and veteran tions for graduate student workers, and for By Mr. MCCONNELL: families through the award of grants to other purposes; to the Committee on Health, S. Res. 483. A resolution to provide for re- such entities, and for other purposes. Education, Labor, and Pensions. lated procedures concerning the articles of By Mr. PORTMAN: impeachment against Donald John Trump, S. 1967 S. 3220. A bill to amend title XIX of the So- President of the United States; considered At the request of Mr. WYDEN, the cial Security Act to clarify that the provi- and agreed to. name of the Senator from Alabama sion of home and community-based services f (Mr. JONES) was added as a cosponsor is not prohibited in an acute care hospital, of S. 1967, a bill to promote innovative and for other purposes; to the Committee on ADDITIONAL COSPONSORS Finance. approaches to outdoor recreation on S. 578 By Mr. BOOKER: Federal land and to increase opportuni- S. 3221. A bill to place a moratorium on At the request of Mr. COTTON, the ties for collaboration with non-Federal large concentrated animal feeding oper- name of the Senator from Iowa (Ms. partners, and for other purposes. ations, to strengthen the Packers and Stock- ERNST) was added as a cosponsor of S. S. 1989 yards Act, 1921, to require country of origin 578, a bill to amend title II of the So- At the request of Mr. SCOTT of South labeling on beef, pork, and dairy products, cial Security Act to eliminate the five- and for other purposes; to the Committee on Carolina, the name of the Senator from month waiting period for disability in- Mississippi (Mr. WICKER) was added as Agriculture, Nutrition, and Forestry. surance benefits under such title for in- By Mrs. SHAHEEN (for herself, Ms. a cosponsor of S. 1989, a bill to amend HASSAN, and Mr. MANCHIN): dividuals with amyotrophic lateral title XVIII of the Social Security Act S. 3222. A bill to establish a grant program sclerosis. to provide for transparency of Medicare relating to the prevention of student and S. 696 secondary payer reporting information, student athlete opioid misuse; to the Com- At the request of Mr. MERKLEY, the and for other purposes. mittee on Health, Education, Labor, and name of the Senator from Alaska (Mr. Pensions. S. 2001 SULLIVAN) was added as a cosponsor of By Mrs. SHAHEEN (for herself, Ms. At the request of Ms. STABENOW, the MURKOWSKI, Mr. DURBIN, Mr. ROM- S. 696, a bill to designate the same indi- names of the Senator from Wyoming NEY, Ms. BALDWIN, and Ms. COLLINS): vidual serving as the Chief Nurse Offi- (Mr. ENZI), the Senator from Oklahoma S. 3223. A bill to apply user fees with re- cer of the Public Health Service as the (Mr. LANKFORD), the Senator from spect to tobacco products deemed subject to National Nurse for Public Health. Florida (Mr. RUBIO) and the Senator the requirements of chapter IX of the Fed- S. 792 eral Food, Drug, and Cosmetic Act; to the from Massachusetts (Ms. WARREN) were Committee on Health, Education, Labor, and At the request of Ms. BALDWIN, the added as cosponsors of S. 2001, a bill to Pensions. name of the Senator from Maine (Ms. award a Congressional Gold Medal to By Mr. CASSIDY (for himself and Mr. COLLINS) was added as a cosponsor of S. Willie O’Ree, in recognition of his ex- TESTER): 792, a bill to require enforcement traordinary contributions and commit- S. 3224. A bill to require the Secretary of against misbranded milk alternatives. ment to hockey, inclusion, and rec- Veterans Affairs to allow for the use of com- S. 1510 reational opportunity. mercial institutional review boards for research, and for other purposes; to the Com- At the request of Mr. YOUNG, the S. 2085 mittee on Veterans’ Affairs. name of the Senator from Kentucky At the request of Ms. ROSEN, the By Ms. ERNST: (Mr. PAUL) was added as a cosponsor of name of the Senator from Illinois (Ms. S. 3225. A bill to reduce Federal spending S. 1510, a bill to amend the Internal DUCKWORTH) was added as a cosponsor and the deficit by terminating taxpayer fi- Revenue Code of 1986 to modify the def- of S. 2085, a bill to authorize the Sec- nancing of Presidential election campaigns; inition of full-time employee for pur- retary of Education to award grants to to the Committee on Finance. poses of the employer mandate in the eligible entities to carry out edu- By Mr. KENNEDY: S. 3226. A bill to amend title 18, United Patient Protection and Affordable Care cational programs about the Holo- States Code, to prohibit certain abortion Act. caust, and for other purposes. procedures, and for other purposes; to the S. 1737 S. 2112 Committee on the Judiciary. At the request of Mr. MURPHY, the At the request of Ms. HARRIS, the f name of the Senator from Minnesota name of the Senator from Connecticut SUBMISSION OF CONCURRENT AND (Ms. SMITH) was added as a cosponsor (Mr. BLUMENTHAL) was added as a co- SENATE RESOLUTIONS of S. 1737, a bill to strengthen parity in sponsor of S. 2112, a bill to enhance the mental health and substance use dis- rights of domestic workers, and for The following concurrent resolutions order benefits. other purposes. and Senate resolutions were read, and S. 1750 referred (or acted upon), as indicated: S. 2179 At the request of Ms. HARRIS, the At the request of Mr. CARDIN, the By Mr. BOOKER (for himself, Mr. name of the Senator from Maryland name of the Senator from Illinois (Ms. MENENDEZ, and Ms. HARRIS): S. Res. 479. A resolution designating Janu- (Mr. VAN HOLLEN) was added as a co- DUCKWORTH) was added as a cosponsor ary 23, 2020, as ‘‘Maternal Health Awareness sponsor of S. 1750, a bill to establish of S. 2179, a bill to amend the Older Day’’; to the Committee on the Judiciary. the Clean School Bus Grant Program, Americans Act of 1965 to provide social By Ms. KLOBUCHAR (for herself, Mr. and for other purposes. service agencies with the resources to GRASSLEY, Mrs. FEINSTEIN, Ms. S. 1843 provide services to meet the urgent HIRONO, Ms. HARRIS, Ms. ERNST, Mrs. At the request of Mr. PETERS, the needs of Holocaust survivors to age in BLACKBURN, Mr. TILLIS, and Mr. place with dignity, comfort, security, CRAPO): name of the Senator from Maryland S. Res. 480. A resolution raising awareness (Mr. CARDIN) was added as a cosponsor and quality of life. and encouraging the prevention of stalking of S. 1843, a bill to amend the Securi- S. 2695 by designating January 2020 as ‘‘National ties Exchange Act of 1934 to require the At the request of Mr. ROBERTS, the Stalking Awareness Month’’ ; to the Com- disclosure of the total number of do- name of the Senator from Georgia mittee on the Judiciary. mestic and foreign employees of cer- (Mrs. LOEFFLER) was added as a cospon- By Ms. ROSEN (for herself, Mr. tain public companies, and for other sor of S. 2695, a bill to authorize the LANKFORD, Mr. MENENDEZ, Mr. CRAMER, and Mr. CARDIN): purposes. Secretary of Agriculture to provide for S. Res. 481. A resolution commemorating S. 1906 the defense of United States agri- the 75th anniversary of the liberation of the At the request of Mr. BOOZMAN, the culture and food through the National Auschwitz extermination camp in Nazi-occu- name of the Senator from Georgia Bio and Agro-Defense Facility, and for pied Poland; to the Committee on Foreign (Mrs. LOEFFLER) was added as a cospon- other purposes. Relations. S. 2699 By Mr. TOOMEY (for himself, Mr. sor of S. 1906, a bill to require the Sec- RUBIO, and Mr. MANCHIN): retary of Veterans Affairs to provide fi- At the request of Mr. MARKEY, the S. Res. 482. A resolution supporting the nancial assistance to eligible entities name of the Senator from Maryland contributions of Catholic schools; to the to provide and coordinate the provision (Mr. CARDIN) was added as a cosponsor

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00149 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.145 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S436 CONGRESSIONAL RECORD — SENATE January 21, 2020 of S. 2699, a bill to reauthorize the Fed- lamic Republic of Iran that have not Whereas certain social determinants of eral Ocean Acidification Research and been authorized by Congress. health, including bias and racism, have a negative impact on maternal health out- Monitoring Act of 2009, and for other S.J. RES. 68 purposes. comes; At the request of Mr. KAINE, the Whereas significant disparities in maternal S. 2705 name of the Senator from Minnesota health exist, including that— At the request of Mrs. MURRAY, the (Ms. KLOBUCHAR) was added as a co- (1) Black women are more than 3 times as names of the Senator from Illinois (Ms. sponsor of S.J. Res. 68, a joint resolu- likely to die from a pregnancy-related cause DUCKWORTH), the Senator from Cali- tion to direct the removal of United as are White women; fornia (Mrs. FEINSTEIN), the Senator States Armed Forces from hostilities (2) American Indian and Alaska Native from Hawaii (Ms. HIRONO), the Senator against the Islamic Republic of Iran women are more than twice as likely to die from a pregnancy-related cause as are White from New Jersey (Mr. MENENDEZ) and that have not been authorized by Con- women; gress. the Senator from Maryland (Mr. VAN (3) Black, American Indian, and Alaska Na- HOLLEN) were added as cosponsors of S. S. RES. 469 tive women with at least some college edu- 2705, a bill to amend title 10, United At the request of Mr. GRAHAM, the cation are more likely to die from a preg- States Code, to modify the require- name of the Senator from Texas (Mr. nancy-related cause than are women of all ments relating to the use of construc- CORNYN) was added as a cosponsor of S. other racial and ethnic backgrounds with tion authority in the event of a dec- Res. 469, a resolution supporting the less than a high school diploma; laration of war or national emergency, people of Iran as they engage in legiti- (4) Black, American Indian, and Alaska Na- and for other purposes. mate protests, and condemning the Ira- tive women are about twice as likely to suffer from severe maternal morbidity as are S. 2950 nian regime for its murderous re- White women; At the request of Mr. SULLIVAN, the sponse. (5) women who live in rural areas have a names of the Senator from North Caro- S. RES. 477 greater likelihood of severe maternal mor- lina (Mr. TILLIS), the Senator from Ne- At the request of Mrs. MURRAY, the bidity and mortality compared to women vada (Ms. ROSEN), the Senator from In- names of the Senator from Michigan who live in urban areas; 1 diana (Mr. YOUNG), the Senator from (Ms. STABENOW) and the Senator from (6) nearly ⁄2 of rural counties do not have a hospital with obstetric services; South Dakota (Mr. ROUNDS), the Sen- Michigan (Mr. PETERS) were added as (7) counties with more Black and Hispanic ator from Arkansas (Mr. BOOZMAN) and cosponsors of S. Res. 477, a resolution residents and lower median incomes are less the Senator from Tennessee (Mrs. designating the week of February 3 likely to have access to hospital obstetric BLACKBURN) were added as cosponsors through 7, 2020, as ‘‘National School services; of S. 2950, a bill to amend title 38, Counseling Week’’. (8) more than 50 percent of women who live United States Code, to concede expo- f in a rural area must travel more than 30 sure to airborne hazards and toxins minutes to access hospital obstetric services, from burn pits under certain cir- SUBMITTED RESOLUTIONS compared to 7 percent of women who live in cumstances, and for other purposes. urban areas; and (9) American Indian and Alaska Native S. 2973 SENATE RESOLUTION 479—DESIG- women living in rural communities are twice At the request of Mr. SCOTT of South NATING JANUARY 23, 2020, AS as likely as their White counterparts to re- Carolina, the name of the Senator from ‘‘MATERNAL HEALTH AWARE- port receiving late or no prenatal care; Oklahoma (Mr. LANKFORD) was added NESS DAY’’ Whereas more than 40 States have des- as a cosponsor of S. 2973, a bill to Mr. BOOKER (for himself, Mr. ignated committees to review maternal amend the Fair Labor Standards Act of deaths; MENENDEZ, and Ms. HARRIS) submitted 1938 to harmonize the definition of em- Whereas State and local maternal mor- the following resolution; which was re- ployee with the common law. tality review committees are positioned to ferred to the Committee on the Judici- comprehensively assess maternal deaths and S. 3080 ary: identify opportunities for prevention; At the request of Mr. SULLIVAN, the S. RES. 479 Whereas more than 25 States are partici- name of the Senator from North Da- Whereas, every year in the United States, pating in the Alliance for Innovation on Ma- kota (Mr. CRAMER) was added as a co- approximately 700 women die as a result of ternal Health, which promotes consistent sponsor of S. 3080, a bill to state the complications related to pregnancy and and safe maternity care to reduce maternal policy of the United States regarding childbirth; morbidity and mortality; the need for strategic placement of Whereas the pregnancy-related mortality Whereas community-based maternal military assets in the Arctic, and for ratio, defined as the number of pregnancy-re- health care models, including midwifery childbirth services, doula support services, other purposes. lated deaths per 100,000 live births, more than doubled between 1987 and 2016; community and perinatal health worker S. 3167 Whereas the United States is the only de- services, and group prenatal care, in collabo- At the request of Mr. BOOKER, the veloped country whose maternal mortality ration with culturally competent physician name of the Senator from California rate has increased over the last several dec- care, show great promise in improving ma- (Ms. HARRIS) was added as a cosponsor ades; ternal health outcomes and reducing dispari- of S. 3167, a bill to prohibit discrimina- Whereas, of all pregnancy-related deaths ties in maternal health outcomes; between 2011 and 2015— Whereas many organizations have imple- tion based on an individual’s texture or mented initiatives to educate patients and style of hair. (1) nearly 31 percent occurred during pregnancy; providers about— S.J. RES. 4 (2) about 36 percent occurred during child- (1) all causes of, contributing factors to, At the request of Mr. KAINE, the birth or the week after childbirth; and and disparities in maternal mortality; name of the Senator from Oregon (Mr. (3) 33 percent occurred between 1 week and (2) the prevention of pregnancy-related MERKLEY) was added as a cosponsor of 1 year postpartum; deaths; and S.J. Res. 4, a joint resolution requiring Whereas more than 60 percent of maternal (3) the importance of listening to and em- deaths in the United States are preventable; powering all women to report pregnancy-re- the advice and consent of the Senate or lated medical issues; and an Act of Congress to suspend, termi- Whereas, in 2014 alone, 50,000 women suf- Whereas several States, communities, and nate, or withdraw the United States fered from a ‘‘near miss’’ or severe maternal morbidity, which includes potentially life- organizations recognize January 23 as ‘‘Ma- from the North Atlantic Treaty and threatening complications that arise from ternal Health Awareness Day’’ to raise authorizing related litigation, and for labor and childbirth; awareness about maternal health and pro- other purposes. Whereas 28 percent of women who gave mote maternal safety: Now, therefore, be it S.J. RES. 63 birth in a hospital in the United States re- Resolved, That the Senate— At the request of Mr. KAINE, the ported experiencing 1 or more types of mis- (1) designates January 23, 2020, as ‘‘Mater- name of the Senator from Rhode Island treatment, such as— nal Health Awareness Day’’; (1) loss of autonomy; (2) supports the goals and ideals of Mater- (Mr. REED) was added as a cosponsor of (2) being shouted at, scolded, or threat- nal Health Awareness Day, including— S.J. Res. 63, a joint resolution to direct ened; and (A) raising public awareness about mater- the removal of United States Armed (3) being ignored or refused or receiving no nal mortality, maternal morbidity, and dis- Forces from hostilities against the Is- response to requests for help; parities in maternal health outcomes; and

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00150 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.147 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S437 (B) encouraging the Federal Government, stalking through more aggressive investiga- non-Jewish Poles, Romani people, Soviet ci- States, territories, Tribes, local commu- tion and prosecution; vilians and prisoners of war, Afro-Germans, nities, public health organizations, physi- Whereas there is a need for an increase in Jehovah’s Witnesses, people with disabil- cians, health care providers, and others to the availability of victim services across the ities, gay men and women, and other ethnic take action to reduce adverse maternal United States, and the services must include minorities; health outcomes and improve maternal safe- programs tailored to meet the needs of vic- Whereas these innocent civilians were sub- ty; tims of stalking; jected to torture, forced labor, starvation, (3) promotes initiatives— Whereas individuals 18 to 24 years old expe- rape, medical experiments, and being sepa- (A) to address and eliminate disparities in rience the highest rates of stalking victim- rated from loved ones; maternal health outcomes; and ization, and a majority of stalking victims Whereas the names of many of these inno- (B) to ensure respectful and equitable ma- report their victimization first occurred be- cent civilians who perished have been lost ternity care practices; fore the age of 25; forever; (4) honors the mothers who have passed Whereas up to 75 percent of women in col- away as a result of pregnancy-related causes; lege who experience behavior relating to Whereas the Auschwitz extermination and stalking experience other forms of victimiza- camp symbolizes the extraordinary brutality (5) supports and recognizes the need for tion, including sexual or physical victimiza- of the Holocaust; further investments in efforts to improve tion; Whereas the United States Holocaust Me- maternal health, eliminate disparities in Whereas there is a need for an effective re- morial Museum teaches about and promotes maternal health outcomes, and promote response to stalking on each campus; and remembrance of the Holocaust; spectful and equitable maternity care prac- Whereas the Senate finds that ‘‘National Whereas the people of the United States tices. Stalking Awareness Month’’ provides an op- must never forget the terrible crimes against f portunity to educate the people of the humanity committed at the Auschwitz ex- United States about stalking: Now, there- termination camp; SENATE RESOLUTION 480—RAISING fore, be it Whereas the people of the United States AWARENESS AND ENCOURAGING Resolved, That the Senate— must educate future generations to promote THE PREVENTION OF STALKING (1) designates January 2020 as ‘‘National understanding of the dangers of intolerance BY DESIGNATING JANUARY 2020 Stalking Awareness Month’’; in order to prevent similar injustices, includ- AS ‘‘NATIONAL STALKING (2) applauds the efforts of service providers ing acts of violent anti-Semitism, from hap- AWARENESS MONTH’’ for victims of stalking, police, prosecutors, pening again; national and community organizations, cam- Whereas, in recent years, there has been an Ms. KLOBUCHAR (for herself, Mr. puses, and private sector supporters to pro- increase in the number and intensity of anti- GRASSLEY, Mrs. FEINSTEIN, Ms. HIRONO, mote awareness of stalking; Semitic incidents in the United States and Ms. HARRIS, Ms. ERNST, Mrs. BLACK- (3) encourages policymakers, criminal jus- around the world; BURN, Mr. TILLIS, and Mr. CRAPO) sub- tice officials, victim service and human serv- mitted the following resolution; which ice agencies, institutions of higher edu- Whereas hate crime statistics collected by was referred to the Committee on the cation, and nonprofit organizations to in- the Federal Bureau of Investigation dem- Judiciary: crease awareness of stalking and continue to onstrate a marked rise in anti-Semitic incidents in the United States over the past sev- S. RES. 480 support the availability of services for victims of stalking; and eral years, and the Special Envoy to Monitor Whereas approximately 1 in 6 women in the (4) urges national and community organi- and Combat Anti-Semitism of the Depart- United States, at some point during their zations, businesses in the private sector, and ment of State recently stated that the Jew- lifetimes, have experienced stalking victim- the media to promote awareness of the crime ish people worldwide are facing the worst ization, during which the women felt very of stalking through ‘‘National Stalking wave of anti-Semitism since the Holocaust; fearful or believed that they or someone Awareness Month’’. close to them would be harmed or killed; Whereas, in 2018, the United States experi- Whereas, during a 1-year period, an esti- f enced the single deadliest attack against the mated 7,500,000 individuals in the United Jewish community in the history of the States reported that they had been victims SENATE RESOLUTION 481—COM- United States with the murder of 11 individ- of stalking; MEMORATING THE 75TH ANNI- uals at the Tree of Life synagogue in Pitts- Whereas more than 80 percent of victims of VERSARY OF THE LIBERATION burgh, Pennsylvania; stalking reported that they had been stalked OF THE AUSCHWITZ EXTERMI- Whereas the attack in Pittsburgh was fol- by someone they knew; NATION CAMP IN NAZI-OCCUPIED lowed in 2019 by a vicious anti-Semitic at- Whereas nearly 70 percent of intimate POLAND tack in Poway, California, and later, by a se- partner stalking victims were threatened ries of violent attacks against the Orthodox with physical harm by stalkers; Ms. ROSEN (for herself, Mr. Jewish community in the State of New York; Whereas 11 percent of victims of stalking LANKFORD, Mr. MENENDEZ, Mr. CRAMER, and reported having been stalked for more than 5 and Mr. CARDIN) submitted the fol- Whereas, especially in a period of rising years; lowing resolution; which was referred anti-Semitism, commemoration of the lib- Whereas two-thirds of stalkers pursue to the Committee on Foreign Rela- eration of the Auschwitz extermination their victims at least once a week; tions: camp will instill in all people of the United Whereas many victims of stalking are forced to take drastic measures to protect S. RES. 481 States a greater awareness of the Holocaust themselves, including relocating, changing Whereas, during World War II, the Nazi re- and knowledge of the horrors brought upon jobs, or obtaining protection orders; gime and its collaborators systematically by the Nazi regime’s systematic murder of Whereas the prevalence of anxiety, insom- murdered 6,000,000 Jews and millions of other 6,000,000 Jews and millions of other innocent nia, social dysfunction, and severe depres- individuals; individuals: Now, therefore, be it sion is much higher among victims of stalk- Whereas the Auschwitz concentration Resolved, That the Senate— ing than the general population; camp complex in Nazi-occupied Poland, (1) commemorates January 27, 2020, as the Whereas many victims of stalking do not which included a killing center at Birkenau, 75th anniversary of the liberation of the report stalking to the police or contact a was the largest death camp complex estab- Auschwitz extermination camp by Allied victim service provider, shelter, or hotline; lished by the Nazi regime; Forces during World War II; Whereas stalking is a crime under Federal Whereas, on January 27, 1945, the Ausch- (2) calls on all people of the United States law and the laws of all 50 States, the District witz extermination camp was liberated by to remember the 1,100,000 innocent victims of Columbia, and the territories of the Allied Forces during World War II, after al- murdered at the Auschwitz extermination United States; most 5 years of murder, rape, and torture at Whereas stalking affects victims of every the camp; camp as part of the Holocaust, the 6,000,000 race, age, culture, gender, sexual orienta- Whereas nearly 1,300,000 innocent civilians Jews killed throughout the Holocaust, and tion, physical and mental ability, and eco- were deported to Auschwitz from their all of the victims of the Nazi reign of terror; nomic status; homes across Eastern and Western Europe, (3) honors the legacy of the survivors of Whereas national organizations, local vic- particularly from Hungary, Poland, and the Holocaust and of the Auschwitz extermi- tim service organizations, campuses, pros- France; nation camp; ecutor’s offices, and police departments Whereas nearly 1,100,000 innocent civilians (4) calls on the people of the United States stand ready to assist victims of stalking and were murdered at the Auschwitz extermi- to continue to work toward tolerance, peace, are working diligently to develop effective nation camp between 1940 and 1945; and justice and to continue to work to end and innovative responses to stalking, includ- Whereas at least 960,000 of the nearly all genocide and persecution; and ing online stalking; 1,100,000 murdered people were Jewish; (5) recommits to combatting all forms of Whereas there is a need to improve the re- Whereas the more than 100,000 other vic- anti-Semitism. sponse of the criminal justice system to tims who perished at Auschwitz included

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Succeed.’’: Now, there- Upon the conclusion of the President’s fore, be it presentation, Senators may question the Mr. TOOMEY (for himself, Mr. RUBIO, Resolved, That the Senate— parties for a period of time not to exceed 16 and Mr. MANCHIN) submitted the fol- (1) supports the goals of National Catholic hours. lowing resolution; which was referred Schools Week, an event— Upon the conclusion of questioning by the to the Committee on Health, Edu- (A) cosponsored by the National Catholic Senate, there shall be 4 hours of argument cation, Labor, and Pensions: Educational Association and the United by the parties, equally divided, followed by States Conference of Catholic Bishops; and deliberation by the Senate, if so ordered S. RES. 482 (B) established to recognize the vital con- under the impeachment rules, on the ques- Whereas Catholic schools in the United tributions of the thousands of Catholic ele- tion of whether it shall be in order to con- States are internationally acclaimed for mentary and secondary schools in the United sider and debate under the impeachment their academic excellence and provide stu- States; rules any motion to subpoena witnesses or dents with more than just an exceptional (2) applauds the National Catholic Edu- documents. The Senate, without any inter- scholastic education; cational Association and the United States vening action, motion, or amendment, shall Whereas Catholic schools instill a broad, Conference of Catholic Bishops on the selec- then decide by the yeas and nays whether it values-added education emphasizing the life- tion of a theme that all people can celebrate; shall be in order to consider and debate long development of moral, intellectual, and under the impeachment rules any motion to physical, and social values in young people (3) supports— subpoena witnesses or documents. in the United States; (A) the dedication of Catholic schools, stu- Following the disposition of that question, Whereas Catholic schools serve the United dents, parents, and teachers across the other motions provided under the impeach- States by providing a diverse student popu- United States to academic excellence; and ment rules shall be in order. lation, from all regions of the country and (B) the key role that Catholic schools, stu- If the Senate agrees to allow either the all socioeconomic backgrounds, a strong aca- dents, parents, and teachers across the House of Representatives or the President to demic and moral foundation, and of that stu- United States play in promoting and ensur- subpoena witnesses, the witnesses shall first dent population— ing a brighter, stronger future for the United be deposed and the Senate shall decide after (1) 39 percent of students are from racial States. deposition which witnesses shall testify, pur- and ethnic minority backgrounds; and suant to the impeachment rules. No testi- f (2) 19 percent of students are from non- mony shall be admissible in the Senate un- Catholic families; SENATE RESOLUTION 483—TO PRO- less the parties have had an opportunity to Whereas Catholic schools are an affordable depose such witnesses. VIDE FOR RELATED PROCE- At the conclusion of the deliberations by option for parents, particularly in under- DURES CONCERNING THE ARTI- served urban areas; the Senate, the Senate shall vote on each ar- CLES OF IMPEACHMENT ticle of impeachment. Whereas Catholic schools produce students AGAINST DONALD JOHN TRUMP, who are strongly dedicated to their faith, f values, families, and communities by pro- PRESIDENT OF THE UNITED STATES AMENDMENTS SUBMITTED AND viding an intellectually stimulating environ- PROPOSED ment rich in spiritual, character, and moral Mr. MCCONNELL submitted the fol- development; lowing resolution; which was consid- SA 1284. Mr. SCHUMER proposed an Whereas Catholic schools are committed to ered and agreed to: amendment to the resolution S. Res. 483, to community service, producing graduates who provide for related procedures concerning hold ‘‘helping others’’ as a core value; S. RES. 483 the articles of impeachment against Donald Whereas, during the 2018–2019 academic Resolved, That the House of Representa- John Trump, President of the United States. year in the United States, almost 1,800,000 tives shall file its record with the Secretary SA 1285. Mr. SCHUMER proposed an students were enrolled in Catholic schools of the Senate, which will consist of those amendment to the resolution S. Res. 483, and the student-teacher ratio for Catholic publicly available materials that have been supra. schools was 12 to 1; submitted to or produced by the House Judi- SA 1286. Mr. SCHUMER proposed an Whereas the graduation rate of students ciary Committee, including transcripts of amendment to the resolution S. Res. 483, from Catholic high schools is 99 percent, public hearings or mark-ups and any mate- supra. with 86 percent of graduates attending 4-year rials printed by the House of Representatives SA 1287. Mr. SCHUMER proposed an colleges; or the House Judiciary Committee pursuant amendment to the resolution S. Res. 483, Whereas, in the 2005 pastoral message enti- to House Resolution 660. Materials in this supra. tled ‘‘Renewing Our Commitment to Catho- record will be admitted into evidence subject SA 1288. Mr. SCHUMER proposed an lic Elementary and Secondary Schools in the to any hearsay, evidentiary, or other objec- amendment to the resolution S. Res. 483, Third Millennium’’, the United States Con- tions that the President may make after supra. ference of Catholic Bishops stated, ‘‘Catholic opening presentations are concluded. All ma- SA 1289. Mr. SCHUMER proposed an schools are often the Church’s most effective terials filed pursuant to this paragraph shall amendment to the resolution S. Res. 483, contribution to those families who are poor be printed and made available to all parties. supra. and disadvantaged, especially in poor inner The President and the House of Represent- SA 1290. Mr. SCHUMER proposed an city neighborhoods and rural areas. Catholic atives shall have until 9:00 a.m. on Wednes- amendment to the resolution S. Res. 483, schools cultivate healthy interaction among day, January 22, 2020, to file any motions supra. the increasingly diverse populations of our permitted under the rules of impeachment SA 1291. Mr. SCHUMER proposed an society. In cities and rural areas, Catholic with the exception of motions to subpoena amendment to the resolution S. Res. 483, schools are often the only opportunity for witnesses or documents or any other evi- supra. economically disadvantaged young people to dentiary motions. Responses to any such mo- SA 1292. Mr. SCHUMER proposed an receive an education of quality that speaks tions shall be filed no later than 11:00 a.m. on amendment to the resolution S. Res. 483, to the development of the whole person. . . . Wednesday, January 22, 2020. All materials supra. Our Catholic schools have produced count- filed pursuant to this paragraph shall be SA 1293. Mr. SCHUMER proposed an less numbers of well-educated and moral filed with the Secretary and be printed and amendment to the resolution S. Res. 483, citizens who are leaders in our civic and made available to all parties. supra. ecclesial communities.’’; Arguments on such motions shall begin at SA 1294. Mr. SCHUMER (for Mr. VAN HOL- Whereas the week of January 26, 2020, to 1:00 p.m. on Wednesday, January 22, 2020, and LEN) proposed an amendment to the resolu- February 1, 2020, has been designated as ‘‘Na- each side may determine the number of per- tion S. Res. 483, supra. tional Catholic Schools Week’’ by the Na- sons to make its presentation, following f tional Catholic Educational Association and which the Senate shall deliberate, if so or- the United States Conference of Catholic dered under the impeachment rules, and vote TEXT OF AMENDMENTS Bishops, and January 29, 2020, has been des- on any such motions. SA 1284. Mr. SCHUMER proposed an ignated as ‘‘National Appreciation Day for Following the disposition of such motions, amendment to the resolution S. Res. Catholic Schools’’; or if no motions are made, then the House of 483, to provide for related procedures Whereas National Catholic Schools Week Representatives shall make its presentation concerning the articles of impeach- was first established in 1974 and has been in support of the articles of impeachment for ment against Donald John Trump, celebrated annually for the past 46 years; a period of time not to exceed 24 hours, over Whereas 30 percent of Catholic schools up to 3 session days. Following the House of President of the United States; as fol- have waiting lists for admission, and new Representatives’ presentation, the President lows: schools are opening across the United States; shall make his presentation for a period not At the appropriate place in the resolving and to exceed 24 hours, over up to 3 session days. clause, insert the following:

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SEC. lll. Notwithstanding any other meeting in Ambassador Bolton’s office and a Practice in the Senate When Sitting on Im- provision of this resolution, pursuant to subsequent meeting in the Ward Room; peachment Trials— rules V and VI of the Rules of Procedure and (iv) a meeting at the White House on or (1) the Chief Justice of the United States, Practice in the Senate When Sitting on Im- around August 30, 2019, involving President through the Secretary of the Senate, shall peachment Trials— Trump, Secretary of State Mike Pompeo, issue a subpoena to the Secretary of State (1) the Chief Justice of the United States, and Secretary of Defense Mark Esper; commanding him to produce, for the time through the Secretary of the Senate, shall (v) a planned meeting, later cancelled, in period from January 1, 2019, to the present, issue a subpoena to the Acting Chief of Staff Warsaw, Poland, on or around September 1, all documents, communications, and other of the White House commanding him to 2019 between President Trump and President records within the possession, custody, or produce, for the time period from January 1, Zelensky, and subsequently attended by Vice control of the Department of State, referring 2019, to the present, all documents, commu- President Pence; and or relating to— nications, and other records within the pos- (vi) a meeting at the White House on or (A) all meetings and calls between Presi- session, custody, or control of the White around September 11, 2019, involving Presi- dent Trump and the President of Ukraine, House, including the National Security dent Trump, Vice President Pence, and Mr. including documents, communications, and other records related to the scheduling of, Council, referring or relating to— Mulvaney concerning the lifting of the hold preparation for, and follow-up from the (A) all meetings and calls between Presi- on security assistance for Ukraine; President’s April 21 and July 25, 2019 tele- dent Trump and the President of Ukraine, (F) meetings, telephone calls or conversa- phone calls, as well as the President’s Sep- including documents, communications, and tions related to any occasions in which Na- tember 25, 2019 meeting with the President of other records related to the scheduling of, tional Security Council officials reported Ukraine in New York; preparation for, and follow-up from the concerns to National Security Council law- (B) the actual or potential suspension, President’s April 21 and July 25, 2019 tele- yers, including but not limited to National withholding, delaying, freezing, or releasing phone calls, as well as the President’s Sep- Security Council Legal Advisor, John of United States foreign assistance, military tember 25, 2019 meeting with the President of Eisenberg, regarding matters related to Ukraine, including but not limited to— assistance, or security assistance of any kind Ukraine in New York; to Ukraine, including but not limited to the (B) all investigations, inquiries, or other (i) the decision to delay military assistance to Ukraine; Ukraine Security Assistance Initiative probes related to Ukraine, including any (USAI) and Foreign Military Financing that relate in any way to— (ii) the July 10, 2019 meeting at the White House with Ukrainian officials; (FMF), including but not limited to all com- (i) former Vice President Joseph Biden; munications with the White House, Depart- (ii) Hunter Biden and any of his associates; (iii) the President’s July 25, 2019 call with the President of Ukraine; ment of Defense, and the Office of Manage- (iii) Burisma Holdings Limited (also ment and Budget, as well as the Ukrainian known as ‘‘Burisma’’); (iv) a September 1, 2019 meeting between Ambassador Sondland and a Ukrainian offi- government’s knowledge prior to August 28, (iv) interference or involvement by 2019, of any actual or potential suspension, Ukraine in the 2016 United States election; cial; and (v) the President’s September 7, 2019 call withholding, delaying, freezing, or releasing (v) the Democratic National Committee; or of United States foreign assistance to (vi) CrowdStrike; with Ambassador Sondland; (G) any internal review or assessment Ukraine, including all meetings, calls, or (C) the actual or potential suspension, other engagements with Ukrainian officials withholding, delaying, freezing, or releasing within the White House regarding Ukraine matters following the September 9, 2019, re- regarding potential or actual suspensions, of United States foreign assistance, military holds, or delays in United States assistance assistance, or security assistance of any kind quest for documents from the House Perma- nent Select Committee on Intelligence, the to Ukraine; to Ukraine, including but not limited to the (C) all documents, communications, notes, Ukraine Security Assistance Initiative House Committee on Oversight and Reform, and the House Committee on Foreign Af- and other records created or received by, (USAI) and Foreign Military Financing Secretary Michael R. Pompeo, Counselor T. (FMF); fairs, including, but not limited to, documents collected that pertain to the hold on Ulrich Brechbuhl, former Special Represent- (D) all documents, communications, notes, ative for Ukraine Negotiations Ambassador and other records created or received by Act- military and other security assistance to Ukraine, the scheduling of a White House Kurt Volker, Deputy Assistant Secretary ing Chief of Staff Mick Mulvaney, then-Na- George Kent, then-United States Embassy in tional Security Advisor John R. Bolton, Sen- meeting for the president of Ukraine, and any requests for investigations by Ukraine; Ukraine Charge d’Affaires William B. Tay- ior Advisor to the Chief of Staff Robert B. lor, and Ambassador to the European Union (H) the complaint submitted by a whistle- Blair, and other White House officials relat- Gordon Sondland, and other State Depart- blower within the Intelligence Community ing to efforts to— ment officials, relating to efforts to— on or around August 12, 2019, to the Inspector (i) solicit, request, demand, induce, per- (i) solicit, request, demand, induce, per- General of the Intelligence Community; suade, or coerce Ukraine to conduct or an- suade, or coerce Ukraine to conduct or an- (I) all meetings or calls, including requests nounce investigations; nounce investigations; for or records of meetings or telephone calls, (ii) offer, schedule, cancel, or withhold a (ii) offer, schedule, cancel, or withhold a scheduling items, calendar entries, White White House meeting for Ukraine’s presi- White House meeting for Ukraine’s presi- House visitor records, and email or text mes- dent; or dent; or sages using personal or work-related devices (iii) hold and then release military and (iii) hold and then release military and other security assistance to Ukraine; between or among— other security assistance to Ukraine; (E) meetings at or involving the White (i) current or former White House officials (D) any meetings or proposed meetings at House that relate to Ukraine, including but or employees, including but not limited to or involving the White House that relate to not limited to— President Trump; and Ukraine, including but not limited to— (i) President Zelensky’s inauguration on (ii) Rudolph W. Giuliani, Ambassador (i) President Zelensky’s inauguration on May 20, 2019, in Kiev, Ukraine, including but Sondland, Victoria Toensing, or Joseph May 20, 2019, in Kiev, Ukraine, including but not limited to President Trump’s decision diGenova; and not limited to President Trump’s decision not to attend, to ask Vice President Pence to (J) former United States Ambassador to not to attend, to ask Vice President Pence to lead the delegation, directing Vice President Ukraine Marie ‘‘Masha’’ Yovanovitch, in- lead the delegation, directing Vice President Pence not to attend, and the subsequent de- cluding but not limited to the decision to Pence not to attend, and the subsequent decision about the composition of the delega- end her tour or recall her from the United cision about the composition of the delegation of the United States; States Embassy in Kiev; and tion of the United States; (ii) a meeting at the White House on or (2) the Sergeant at Arms is authorized to (ii) a meeting at the White House on or around May 23, 2019, involving, among oth- utilize the services of the Deputy Sergeant around May 23, 2019, involving, among others, President Trump, then-Special Rep- at Arms or any other employee of the United ers, President Trump, then-Special Rep- resentative for Ukraine Negotiations Ambas- States Senate in serving the subpoena au- resentative for Ukraine Negotiations Ambas- sador Kurt Volker, then-Energy Secretary thorized to be issued by this section. sador Kurt Volker, then-Energy Secretary Rick Perry, and United States Ambassador SA 1285. Mr. SCHUMER proposed an Rick Perry, and United States Ambassador to the European Union Gordon Sondland, as amendment to the resolution S. Res. to the European Union Gordon Sondland, as well as any private meetings or conversa- well as any private meetings or conversations with those individuals before or after 483, to provide for related procedures tions with those individuals before or after the larger meeting; concerning the articles of impeach- the larger meeting; (iii) meetings at the White House on or ment against Donald John Trump, (iii) meetings at the White House on or about July 10, 2019, involving Ukrainian offi- President of the United States; as fol- about July 10, 2019, involving Ukrainian officials Andriy Yermak and Oleksander lows: cials Andriy Yermak and Oleksander Danylyuk and United States Government of- At the appropriate place in the resolving Danylyuk and United States Government officials, including, but not limited to, then- clause, insert the following: ficials, including, but not limited to, then- National Security Advisor John Bolton, Sec- SEC. lll. Notwithstanding any other National Security Advisor John Bolton, Sec- retary Perry, Ambassador Volker, and Am- provision of this resolution, pursuant to retary Perry, Ambassador Volker, and Am- bassador Sondland, to include at least a rules V and VI of the Rules of Procedure and bassador Sondland, to include at least a

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00153 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.154 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE S440 CONGRESSIONAL RECORD — SENATE January 21, 2020 meeting in Ambassador Bolton’s office and a issue a subpoena to the Acting Director of mentation or correspondence related to the subsequent meeting in the Ward Room; the Office of Management and Budget com- decision; (iv) a meeting at the White House on or manding him to produce, for the time period (F) all draft and final versions of talking around August 30, 2019, involving President from January 1, 2019, to the present, all doc- points related to the withholding or release Trump, Secretary of State Mike Pompeo, uments, communications, and other records of foreign assistance, military assistance, or and Secretary of Defense Mark Esper; within the possession, custody, or control of security assistance to Ukraine, including (v) a planned meeting, later cancelled, in the Office of Management and Budget, refer- communications with the Department of De- Warsaw, Poland, on or around September 1, ring or relating to— fense related to concerns about the accuracy 2019 between President Trump and President (A) the actual or potential suspension, of the talking points; and Zelensky, and subsequently attended by Vice withholding, delaying, freezing, or releasing (G) all meetings and calls between Presi- President Pence; and of United States foreign assistance, military dent Trump and the President of Ukraine, (vi) a meeting at the White House on or assistance, or security assistance of any kind including documents, communications, and around September 11, 2019, involving Presi- to Ukraine, including but not limited to the other records related to the scheduling of, dent Trump, Vice President Pence, and Mr. Ukraine Security Assistance Initiative (re- preparation for, and follow-up from the Mulvaney concerning the lifting of the hold ferred to in this section as ‘‘USAI’’) and For- President’s April 21 and July 25, 2019, tele- on security assistance for Ukraine; eign Military Financing (referred to in this phone calls, as well as the President’s Sep- (E) all communications, including but not section as ‘‘FMF’’), including but not limited tember 25, 2019, meeting with the President limited to WhatsApp or text messages on pri- to— of Ukraine in New York; and vate devices, between current or former (i) communications among, between, or re- (2) the Sergeant at Arms is authorized to State Department officials or employees, in- ferring to Director Michael John ‘‘Mick’’ utilize the services of the Deputy Sergeant cluding but not limited to Secretary Michael Mulvaney, Assistant to the President Robert at Arms or any other employee of the Senate R. Pompeo, Ambassador Volker, Ambassador Blair, Acting Director Russell Vought, Asso- in serving the subpoena authorized to be Sondland, Ambassador Taylor, and Deputy ciate Director Michael Duffey, or any other issued by this section. Assistant Secretary Kent, and the following: Office of Management and Budget employee; President Zelensky, Andriy Yermak, or indi- (ii) communications related to requests by SA 1287. Mr. SCHUMER proposed an viduals or entities associated with or acting President Trump for information about amendment to the resolution S. Res. in any capacity as a representative, agent, or Ukraine security or military assistance and 483, to provide for related procedures proxy for President Zelensky before and responses to those requests; concerning the articles of impeach- after his election; (iii) communications related to concerns raised by any Office of Management and ment against Donald John Trump, (F) all records specifically identified by President of the United States; as fol- witnesses in the House of Representatives’ Budget employee related to the legality of impeachment inquiry that memorialize key any hold on foreign assistance, military as- lows: events or concerns, and any records reflect- sistance, or security assistance to Ukraine; At the appropriate place in the resolving ing an official response thereto, including (iv) communications sent to the Depart- clause, insert the following: but not limited to— ment of State regarding a hold or block on SEC. lll. Notwithstanding any other (i) an August 29, 2019 cable sent by Ambas- congressional notifications regarding the re- provision of this resolution, pursuant to lease of FMF funds to Ukraine; sador Taylor to Secretary Pompeo; rules V and VI of the Rules of Procedure and (v) communications between— (ii) an August 16, 2019 memorandum to file Practice in the Senate When Sitting on Im- (I) officials at the Department of Defense, written by Deputy Assistant Secretary Kent; peachment Trials, the Chief Justice of the including but not limited to Undersecretary and United States, through the Secretary of the of Defense Elaine McCusker; and (iii) a September 15, 2019 memorandum to Senate, shall issue a subpoena for the taking (II) Associate Director Michael Duffey, file written by Deputy Assistant Secretary of testimony of John Michael ‘‘Mick’’ Deputy Associate Director Mark Sandy, or Kent; Mulvaney, and the Sergeant at Arms is au- any other Office of Management and Budget (G) all meetings or calls, including but not thorized to utilize the services of the Deputy employee; limited tp all requests for or records of meet- Sergeant at Arms or any other employee of (vi) all draft and final versions of the Au- ings or telephone calls, scheduling items, the Senate in serving the subpoena author- gust 7, 2019, memorandum prepared by the ized to be issued by this section. calendar entries, State Department visitor National Security Division, International records, and email or text messages using Affairs Division, and Office of General Coun- SA 1288. Mr. SCHUMER proposed an personal or work-related devices, between or sel of the Office of Management and Budget amendment to the resolution S. Res. among— about the release of foreign assistance, secu- (i) current or former State Department of- 483, to provide for related procedures rity assistance, or security assistance to concerning the articles of impeach- ficials or employees, including but not lim- Ukraine; ited to Secretary Michael R. Pompeo, Am- (vii) the Ukrainian government’s knowl- ment against Donald John Trump, bassador Volker, and Ambassador Sondland; edge prior to August 28, 2019, of any actual or President of the United States; as fol- and potential suspension, withholding, delaying, lows: (ii) Rudolph W. Giuliani, Victoria freezing, or releasing of United States for- At the appropriate place in the resolving Toensing, or Joseph diGenova; and eign assistance, military assistance, or secu- clause, insert the following: (H) the curtailment or recall of former rity assistance to Ukraine, including all SEC. lll. Notwithstanding any other United States Ambassador to Ukraine Marie meetings, calls, or other engagements with provision of this resolution, pursuant to ‘‘Masha’’ Yovanovitch from the United Ukrainian officials regarding potential or ac- rules V and VI of the Rules of Procedure and States Embassy in Kiev, including credible tual suspensions, holds, or delays in United Practice in the Senate When Sitting on Im- threat reports against her and any protec- States assistance to Ukraine; peachment Trials— tive security measures taken in response; (B) communications, opinions, advice, (1) the Chief Justice of the United States, and counsel, approvals, or concurrences provided through the Secretary of the Senate, shall (2) the Sergeant at Arms is authorized to by any employee in the Office of Manage- issue a subpoena to the Secretary of Defense utilize the services of the Deputy Sergeant ment and Budget regarding the actual or po- commanding him to produce, for the time at Arms or any other employee of the Senate tential suspension, withholding, delaying, period from January 1, 2019, to the present, in serving the subpoena authorized to be freezing, or releasing of security assistance all documents, communications, and other issued by this section. to Ukraine including legality under the Im- records within the possession, custody, or poundment Control Act; control of the Department of Defense, refer- SA 1286. Mr. SCHUMER proposed an (C) Associate Director Michael Duffey tak- ring or relating to— amendment to the resolution S. Res. ing over duties related to apportionments of (A) the actual or potential suspension, 483, to provide for related procedures USAI or FMF from Deputy Associate Direc- withholding, delaying, freezing, or releasing concerning the articles of impeach- tor Mark Sandy or any other Office of Man- of United States foreign assistance, military ment against Donald John Trump, agement and Budget employee; assistance, or security assistance of any kind President of the United States; as fol- (D) all meetings related to the security as- to Ukraine, including but not limited to the lows: sistance to Ukraine including but not lim- Ukraine Security Assistance Initiative ited to interagency meetings on July 18, 2019, (USAI) and Foreign Military Financing At the appropriate place in the resolving July 23, 2019, July 26, 2019, and July 31, 2019, (FMF), including but not limited to— clause, insert the following: including any directions provided to staff (i) communications among or between offi- SEC. lll. Notwithstanding any other participating in those meetings and any cials at the Department of Defense, White provision of this resolution, pursuant to readouts from those meetings; House, Office of Management and Budget, rules V and VI of the Rules of Procedure and (E) the decision announced on or about Department of State, or Office of the Vice Practice in the Senate When Sitting on Im- September 11, 2019, to release appropriated President; peachment Trials— foreign assistance, military assistance, or se- (ii) documents, communications, notes, or (1) the Chief Justice of the United States, curity assistance to Ukraine, including but other records created, sent, or received by through the Secretary of the Senate, shall not limited to any notes, memoranda, docu- Secretary Mark Esper, Deputy Secretary

VerDate Sep 11 2014 17:43 Jan 22, 2020 Jkt 099060 PO 00000 Frm 00154 Fmt 4624 Sfmt 0634 E:\CR\FM\A21JA6.156 S21JAPT1 SSpencer on DSKBBXCHB2PROD with SENATE January 21, 2020 CONGRESSIONAL RECORD — SENATE S441 David Norquist, Undersecretary of Defense ment against Donald John Trump, 483, to provide for related procedures Elaine McCusker, and Deputy Assistant Sec- President of the United States; as fol- concerning the articles of impeach- retary of Defense Laura Cooper, or Mr. Eric lows: ment against Donald John Trump, Chewning; At the appropriate place in the resolving (iii) draft or final letters from Deputy Sec- President of the United States; as fol- clause, insert the following: retary David Norquist to the Office of Man- lows: SEC. lll. Notwithstanding any other agement and Budget; and provision of this resolution, pursuant to On page 3, line 8, strike ‘‘4 hours’’ and in- (iv) unredacted copies of all documents re- rules V and VI of the Rules of Procedure and sert ‘‘2 hours’’. leased in response to the September 25, 2019, Practice in the Senate When Sitting on Im- On page 3, line 10, strike ‘‘the question of’’ Freedom of Information Act request by the peachment Trials— and all that follows through ‘‘rules’’ on line Center for Public Integrity (tracking number (1) the Chief Justice of the United States, 12. 19-F-1934); through the Secretary of the Senate, shall— On page 3, line 14, insert ‘‘any such mo- (B) the Ukrainian government’s knowledge (A) issue a subpoena for the taking of testi- tion’’ after ‘‘decide’’. prior to August 28, 2019, of any actual or po- mony of Robert B. Blair; and On page 3, line 15, strike ‘‘whether’’ and all tential suspension, withholding, delaying, (B) issue a subpoena for the taking of testi- that follows through ‘‘documents’’ on line 17. freezing, or releasing of United States for- mony of Michael P. Duffey; and On page 3, line 18, strike ‘‘that question’’ eign assistance, military assistance, or secu- (2) the Sergeant at Arms is authorized to and insert ‘‘any such motion’’. rity assistance to Ukraine, including but not utilize the services of the Deputy Sergeant On page 3, lines 23 and 24 strike ‘‘and the limited to all meetings, calls, or other en- at Arms or any other employee of the Senate gagements with Ukrainian officials regard- Senate shall decide after deposition which in serving the subpoena authorized to be witnesses shall testify’’ and insert ‘‘and then ing potential or actual suspensions, holds, or issued by this section. delays in United States assistance to shall testify in the Senate’’. Ukraine, including but not limited to— SA 1290. Mr. SCHUMER proposed an SA 1293. Mr. SCHUMER proposed an (i) communications received from the De- amendment to the resolution S. Res. amendment to the resolution S. Res. partment of State concerning the Ukrainian 483, to provide for related procedures Embassy’s inquiries about United States for- 483, to provide for related procedures concerning the articles of impeach- eign assistance, military assistance, and se- concerning the articles of impeachment against Donald John Trump, curity assistance to Ukraine; and ment against Donald John Trump, (ii) communications received directly from President of the United States; as follows: President of the United States; as fol- the Ukrainian Embassy about United States lows: foreign assistance, military assistance, and On page 2, between lines 4 and 5, insert the security assistance to Ukraine; following: On page 2, beginning on line 10, strike (C) communications, opinions, advice, If, during the impeachment trial of Donald ‘‘11:00 a.m. on Wednesday, January 22, 2020’’ counsel, approvals, or concurrences provided John Trump, any party seeks to admit evi- and insert ‘‘9:00 a.m. on Thursday, January by the Department of Defense, Office of Man- dence that has not been submitted as part of 23, 2020’’. agement and Budget, or the White House, on the record of the House of Representatives On page 2, line 15, strike ‘‘Wednesday, Jan- the legality of any suspension, withholding, and that was subject to a duly authorized uary 22, 2020’’ and insert ‘‘Thursday, January delaying, freezing, or releasing of United subpoena, that party shall also provide the 23, 2020’’. States foreign assistance, military assist- opposing party all other documents respon- ance, and security assistance to Ukraine; sive to that subpoena. For the purposes of SA 1294. Mr. SCHUMER (for Mr. VAN (D) planned or actual meetings with Presi- this paragraph, the term ‘‘duly authorized HOLLEN) proposed an amendment to dent Trump related to United States foreign subpoena’’ includes any subpoena issued pur- the resolution S. Res. 483, to provide suant to the impeachment inquiry of the assistance, military assistance, or security for related procedures concerning the assistance to Ukraine, including but not lim- House of Representatives. ited to any talking points and notes for Sec- The Senate shall take all necessary meas- articles of impeachment against Don- retary Mark Esper’s planned or actual meet- ures to ensure the proper handling of con- ald John Trump, President of the ings with President Trump on August 16, Au- fidential and classified information in the United States; as follows: record. gust 19, or August 30, 2019; On page 3, line 20, insert ‘‘The Presiding (E) the decision announced on or about Officer shall rule to authorize the subpoena September 11, 2019, to release appropriated SA 1291. Mr. SCHUMER proposed an amendment to the resolution S. Res. of any witness or any document that a Sen- foreign assistance, military assistance, and ator or a party moves to subpoena if the Pre- security assistance to Ukraine, including but 483, to provide for related procedures siding Officer determines that the witness or not limited to any notes, memoranda, docu- concerning the articles of impeach- document is likely to have probative evi- mentation or correspondence related to the ment against Donald John Trump, dence relevant to either article of impeach- decision; and President of the United States; as fol- ment before the Senate.’’ after ‘‘order.’’. (F) all meetings and calls between Presi- lows: The CHIEF JUSTICE. The majority dent Trump and the President of Ukraine, At the appropriate place in the resolving leader is recognized. including but not limited to documents, clause, insert the following: communications, and other records related SEC. lll. Notwithstanding any other f to the scheduling of, preparation for, and fol- provision of this resolution, pursuant to low-up from the President’s April 21 and rules V and VI of the Rules of Procedure and July 25, 2019 telephone calls, as well as the Practice in the Senate When Sitting on Im- ADJOURNMENT UNTIL 1 P.M. President’s September 25, 2019 meeting with peachment Trials, the Chief Justice of the TODAY the President of Ukraine in New York; and United States, through the Secretary of the (2) the Sergeant at Arms is authorized to Senate, shall issue a subpoena for the taking Mr. MCCONNELL. Mr. Chief Justice, utilize the services of the Deputy Sergeant of testimony of John Robert Bolton, and the I ask unanimous consent that the trial at Arms or any other employee of the Senate Sergeant at Arms is authorized to utilize the adjourn until 1 p.m., Wednesday, Janu- in serving the subpoena authorized to be services of the Deputy Sergeant at Arms or ary 22, and that this order also con- issued by this section. any other employee of the Senate in serving stitute the adjournment of the Senate. the subpoena authorized to be issued by this SA 1289. Mr. SCHUMER proposed an section. There being no objection, the Senate, amendment to the resolution S. Res. sitting as the Court of Impeachment, 483, to provide for related procedures SA 1292. Mr. SCHUMER proposed an at 1:50 a.m., adjourned until Wednes- concerning the articles of impeach- amendment to the resolution S. Res. day, January 22, 2020, at 1 p.m.

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