Congressional Record—Senate S386
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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.