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 com- ment. 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