S1184 CONGRESSIONAL RECORD — SENATE February 27, 2020 bomb components, repair and return of weap- get. Laser designation for the LGB can be ests above the interests of the United States. ons, weapons training equipment, practice provided by a variety of laser target markers The House Impeachment Managers have bombs, TTU–595 Test Set and spares, fin as- or designators. proven that the President’s abuse of power semblies, rocket motors, training aids/de- 4. Mk–82 General Purpose (GP) bomb is a and congressional obstruction amount to the vices/spare parts, aircraft spare parts, sup- 500 pound, free-fall, unguided, low-drag weap- constitutional standard of ‘‘high Crimes and port equipment, clothing and textiles, publi- on usually equipped with the mechanical Misdemeanors’’ for which the sole remedy is cations and technical documentation, travel M904 (nose) and M905 (tail) fuzes or the conviction and removal from office. expenses, medical services, construction, air- radar-proximity FMU–113 air-burst fuze. The II. STATEMENT OF THE FACTS craft ferry support, technical and logistical Mk–82 is designed for soft, fragment sen- On December 18, 2019, the United States support services, major modifications/class sitive targets and is not intended for hard House of Representatives passed H. Res. 755,1 IV support, personnel training and training targets or penetrations. The explosive filling ‘‘Impeaching Donald John Trump, President equipment, U.S. Government and contractor is usually tritonal, though other composi- of the United States, for high crimes and program support, and other related elements tions have sometimes been used. misdemeanors.’’ H. Res. 755 contains two Ar- of logistics and program support. The esti- 5. BDU–50 (Mk–82 Inert) GP bomb is a 500 ticles of Impeachment. The first Article de- mated value is $325.8 million. pound, free-fall, unguided, low-drag training clares that the President abused his power This proposed sale will support the foreign weapon. There are no explosive elements by soliciting foreign interference to help his policy and national security of the United with this bomb; it does not have a fuze and bid for reelection in the 2020 United States States by helping to improve the defense ca- will not detonate when it hits the ground. It presidential election and conditioning pabilities and capacity of a major non-NATO is used from flight training to give the pilot United States government acts of significant ally, which is an important force for polit- the insight into aircraft handling character- value on the foreign power’s cooperation. ical stability and economic progress in North istics with the additional weight on the The second Article declares that the Presi- Africa. This potential sale will provide addi- wing. dent obstructed Congress by directing the tional opportunities for bilateral engage- 6. The Joint Programmable Fuze (JPF) categorical, indiscriminate defiance of sub- ments and further strengthen the bilateral FMU–152 is a multi-delay, multi-arm and poenas for witness testimony and documents relationship between the United States and proximity sensor compatible with general deemed vital to the House Impeachment in- Tunisia. purpose blast, frag and hardened-target pene- quiry. The proposed sale will improve Tunisia’s trator weapons. The JPF settings are cock- Pursuant to Article I, Section 3 of the ability to meet current and future threats by pit selectable in flight when used with JDAM United States Constitution, the United increasing their capability and capacity to weapons. States Senate convened as a Court of Im- counter-terrorism and other violent extrem- 7. Advanced Precision Kill Weapon System peachment on January 16, 2020, and each ist organization threats. The AT–6 platform (APKWS) II All-Up-Round (AUR) is an air-to- Senator took an oath to ‘‘do impartial jus- will bolster their capability to respond to ground weapon that consists of an APKWS II tice according to the Constitution and and engage threats in multiple areas across Guidance Section (GS), legacy 2.75 inch MK66 laws.’’ 2 Alexander Hamilton spoke about the the country. Additionally, the procurement Mod 4 rocket motor, and legacy MK152 and Senate’s role in an Impeachment trial in of the AT–6 aircraft strengthens interoper- MK435/436 warhead/fuze. APKWS II uses a Federalist Paper No. 65, when he wrote, ability between Tunisia, regional allies, and semi-active laser seeker. The GS is installed ‘‘What other body would be likely to feel the United States. Tunisia will have no dif- between the rocket motor and warhead to confidence enough in its own situation, to pre- ficulty absorbing this aircraft into its armed create a guided rocket. The APKWS II may serve unawed and uninfluenced the necessary forces. be procured as an independent component to impartiality between an individual accused The proposed sale of this equipment and be mated to appropriate 2.75-inch warheads/ and the representatives of the people, his accus- support will not alter the basic military bal- fuzes and rocket motors purchased sepa- ers?’’ 3 ance in the region. rately, or may be purchased as an AUR. The obligation of the Senate is to accord The prime contractor will be Textron Avia- 8. If a technologically advanced adversary the President, as the accused, the right to tion Defense LLC, Wichita, Kansas. There were to obtain knowledge of the specific conduct his defense fairly, while respecting are no known offset agreements proposed hardware and software elements, the infor- the House’s exclusive constitutional preroga- with this potential sale. However, the pur- mation could be used to develop counter- tive to bring Articles of Impeachment. At chaser typically requests offsets. Any offset measures, which might reduce weapon sys- the core of the Senate’s task is the funda- agreement will be defined in negotiations be- tem effectiveness or be used in the develop- mental understanding that our system of tween the purchaser and the contractor. ment of a system with similar or advanced laws recognizes the rights of defendants and Implementation of this proposed sale will capabilities. the responsibilities of the prosecution to require the assignment of two (2) U.S. con- 9. A determination has been made that the prove its case. Such a basic tenet of our law tractor logistics representatives to Tunisia. recipient country can provide substantially and our experience as a free people does not There will be no adverse impact on U.S. de- the same degree of protection for the tech- evaporate in the rarified atmosphere of a fense readiness as a result of this proposed nology being released as the U.S. Govern- Court of Impeachment, simply because the sale. ment. This sale is necessary in furtherance accused is the President and the accuser is TRANSMITTAL NO. 19–71 of the U.S. foreign policy and national secu- the House of Representatives. Notice of Proposed Issuance of Letter of rity objectives outlined in the Policy Jus- III. THE CONSTITUTIONAL GROUNDS FOR Offer Pursuant to Section 36(b)(1) of the tification. IMPEACHMENT Arms Export Control Act 10. All defense articles and services listed ‘‘The Senate shall have the sole Power to Annex Item No. vii in this transmittal have been authorized for try all Impeachments.’’ 4 With these few (vii) Sensitivity of Technology: release and export to the Government of Tu- words, the Framers of the Constitution en- l. The AT–6 Wolverine is a Beechcraft light nisia. trusted the Senate with the most awesome attack, armed reconnaissance and irregular f power within a democratic society: whether warfare and counterinsurgency mission air- to remove an impeached President from of- craft. With a single engine PT6A–68D Pratt & IMPEACHMENT fice. Whitney engine and Lockheed Martin A–1OC Mr. REED. Mr. President, I ask unan- A. High Crimes and Misdemeanors mission computer and plug- and-play weap- imous consent to have my opinion The Constitution states, ‘‘The President, ons management system with Seek Eagle memorandum in the impeachment trial Vice President and all civil Officers of the certification, the AT–6 Wolverine can fire United States, shall be removed from Office laser-guided rockets and deliver general pur- of President Donald John Trump print- on Impeachment for, and Conviction of, pose and inertially-aided munitions. ed in the RECORD. Treason, Bribery, or other high Crimes and 2. GBU–12 is a 5001b Mk–82 General Purpose There being no objection, the mate- Misdemeanors.’’ 5 (GP) bomb body fitted with the MXU–650 rial was ordered to be printed in the ‘‘Treason’’ and ‘‘Bribery’’ are foundational AFG, and MAU–209C/B or MAU–168L/B Com- RECORD, as follows: impeachable offenses. No more heinous ex- puter Control Group (CCG) to guide to its ample of an offense against the constitu- OPINION MEMORANDUM OF UNITED STATES laser designated target. The GBU–12 is a ma- tional order exists than betrayal of the na- SENATOR JOHN F. REED IN THE IMPEACH- neuverable, free-fall Laser Guided Bomb tion to an enemy or betrayal of duty for per- MENT TRIAL OF PRESIDENT DONALD JOHN (LGB) that guides to a spot of laser energy sonal enrichment. A President commits trea- TRUMP reflected off of the target. Laser designation son when he levies war against the United for the LGB can be provided by a variety of I. FINDINGS States or gives comfort or aid to its en- laser target markers or designators. Based on the evidence in the record, the ar- emies.6 As the House Judiciary Committee 3. GBU–58 is a 2501b Mk–81 GP bomb body guments of the House Impeachment Man- explains, a President engages in impeachable fitted with the MXU–1006 AFG, and MAU– agers, and the arguments of the President’s bribery when he ‘‘offers, solicits, or accepts 209C/B or MAU–l68L/B CCG to guide to its Counsel, I conclude as follows: The President something of personal value to influence his laser designated target. The GBU–58 is a ma- has violated his constitutional oath to ‘‘take own official actions.’’ 7 neuverable, free-fall LGB that guides to a care that the laws be faithfully executed’’ In interpreting ‘‘high Crimes and Mis- spot of laser energy reflected from the tar- and placed his personal and political inter- demeanors,’’ we must not only look to the

VerDate Sep 11 2014 04:10 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00024 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.018 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE February 27, 2020 CONGRESSIONAL RECORD — SENATE S1185 Federalist Papers and the records of the Con- Later commentators expressed similar impeachment to specific offenses against ‘al- stitutional Convention, but also to the con- views. In 1833, Justice Joseph Story quoted ready known and established law.’ ’’ 25 temporary and foundational writings on Im- favorably from the scholarship of William This assertion is clearly wrong. Article I, peachment available to the Framers. Rawle, who concluded that the ‘‘legitimate Section 3 of the United States Constitution Sir William Blackstone, whose influential causes of impeachment . . . can have ref- provides that ‘‘Judgment in Cases of Im- Commentaries on the Laws of England were erence only to public character, and official peachment shall not extend further than to published from 1765–1770, discussed a classi- duty . . . In general, those offenses, which removal from Office, and disqualification to fication of crimes he termed ‘‘public wrongs, may be committed equally by a private per- hold and enjoy any Office of honor, Trust or or crimes and misdemeanors’’ that he de- son, as a public officer, are not the subject of Profit under the United States: but the fined as breaches of the public duty that an 16 impeachment.’’ Party convicted shall nevertheless be liable individual owed to their entire community.8 This line of reasoning is buttressed by the and subject to Indictment, Trial, Judgment Blackstone viewed treason, murder, and rob- careful and thoughtful work of the House of and Punishment, according to Law.’’ 26 As bery as ‘‘public wrongs’’ not only because Representatives during the Watergate pro- Delegate James Wilson wrote, ‘‘impeach- they cause injury to individuals but also be- ceedings. The Democratic staff of the House ments, and offenses and offenders impeach- cause they ‘‘strike at the very being of soci- Judiciary Committee concluded that, ‘‘Be- able ‘‘[do not come] within the sphere of or- ety.’’ 9 cause impeachment of a President is a grave Richard Wooddeson, a legal scholar who dinary jurisprudence. They are founded on step for the nation, it is to be predicated different principles, are governed by dif- began giving lectures on English law in 1777, only upon conduct seriously incompatible defined impeachable offenses as misdeeds ferent maxims, and are directed to different with either the constitutional form and prin- objects: for this reason, the trial and punish- that fail to clearly fall under the jurisdiction ciples of our government or the proper per- of ordinary tribunals. These wrongs were ment of an offense on an impeachment, is no formance of constitutional duties of the bar to a trial and punishment of the same of- ‘‘abuse[s] of high offices of trust’’ that dam- 17 presidential office.’’ 27 10 fence at common law.’’ The independence aged the commonwealth. The deliberations at the Constitutional Much the same as Blackstone and of the Impeachment process from the pros- Convention also demonstrate a conscious Wooddeson, Alexander Hamilton included ecution of crimes underscores the function of movement to narrow the terminology as a the dual components of abuse of public trust Impeachment as a means to remove a Presi- means of raising the threshold for the Im- and national harm in his definition of im- dent from office, not only because of crimi- peachment process to require an offense peachable crimes and misdemeanors. In Fed- nal behavior, but because the President against the State. eralist Paper No. 65, Hamilton defined an im- poses a threat to the constitutional order. Early in the debate on the issue of presi- peachable offense as ‘‘those offenses which Criminal behavior is not irrelevant to an Im- dential Impeachment in July of 1787, it was proceed from the misconduct of public men, peachment, but it only becomes decisive if suggested that Impeachment and removal or in other words from the abuse or violation that behavior imperils the balance of powers could be founded on a showing of ‘‘mal- of some public trust. They are of a nature established in the Constitution. practice,’’ ‘‘neglect of duty,’’ or ‘‘corrup- which may with peculiar propriety be de- tion.’’ 18 By September of 1787, the issue of The assertion that an impeachable offense nominated POLITICAL, as they relate chief- presidential Impeachment had been referred must be predicated on a criminal act goes ly to injuries done immediately to the soci- to the Committee of Eleven, which was cre- against the well-established consensus of the ety itself.’’ 11 ated to resolve the most contentious issues. legal community. For example, the argu- B. The Constitutional Debates The Committee of Eleven considered wheth- ment by President’s Counsel is undercut by Adding impressive support to these con- er the grounds for Impeachment should be the President’s current Attorney General, sistent views of the meaning of the constitu- ‘‘treason or bribery.’’ 19 This was signifi- William Barr. Mr. Barr wrote in a 2018 memo tional term, ‘‘high Crimes and Mis- cantly more restricted than the amorphous to the Department of Justice (DOJ) when he demeanors,’’ is the history of the delibera- standard of ‘‘malpractice,’’ too restricted, in was still in private practice, that the Presi- tions at the Constitutional Convention. fact, for some delegates. George Mason ob- dent ‘‘is answerable for any abuses of discre- The convention delegates considered lim- jected and suggested that ‘‘maladministra- tion and is ultimately subject to the judg- iting Impeachment to treason and bribery. tion’’ be added to ‘‘treason and bribery.’’ 20 ment of Congress through the impeachment However, they concluded that these enumer- This suggestion was opposed by Madison as process [which] means that the president is 28 ated offenses alone could not anticipate being ‘‘equivalent to a tenure during pleas- not the judge in his own cause.’’ As Mr. every manner of profound misconduct that a ure of the Senate.’’ 21 Mason responded by Barr makes clear, Impeachment does not future President might engage in.12 George further refining his suggestion and offered need to be based on a crime. Mason, a delegate from Virginia, declared the term ‘‘other high crimes and mis- Furthermore, the assertion that an im- that ‘‘high crimes and misdemeanors’’ would demeanors against the State.’’ 22 The Mason peachable offense must involve the violation be an apt way to further capture ‘‘great and language was a clear reference to the English of an ‘‘already known or established’’ law, dangerous offences’’ or ‘‘[a]ttempts to sub- legal history of Impeachment. Mason’s pro- even if not criminal, is not supported by the vert the Constitution.’’ 13 posal explicitly narrowed these offenses to constitutional record. In advocating for the This wording would also set the nec- those ‘‘against the State.’’ The Convention inclusion of Impeachment at the Constitu- essarily high threshold for Impeachment itself further clarified the standard by re- tional Convention, James Madison made the that would be proportional to the severe placing ‘‘State’’ with the ‘‘United States.’’ 23 case that the country must be protected punishment of removing an elected official At the conclusion of the substantive delib- against any number of abuses that a Presi- and disqualification from holding future pub- erations on the constitutional standard of dent could engage in and which might cause lic office. Impeachment, it was obvious that only seri- permanent damage to the country. Madison Further insight is provided by James ous offenses against the governmental sys- wrote that: Iredell, a delegate to the North Carolina tem would justify Impeachment and subse- [It was] indispensable that some provision Convention that ratified the Constitution, quent removal from office. However, the should be made for defending the Commu- who later served as a Justice of the United final stylistic touches to the Constitution nity [against] the incapacity, negligence or States Supreme Court. During the Conven- were applied by the Committee of Style. perfidy of the chief Magistrate. The limita- tion debates, Iredell stated: This Committee had no authority to alter The power of impeachment is given by this tion of the period of his service, was not a the meaning of the carefully debated lan- Constitution, to bring great offenders to sufficient security . . . He might pervert his guage, but could only impose a stylistic con- punishment . . . This power is lodged in administration into a scheme of peculation sistency through, among other things, the those who represent the great body of the or oppression. He might betray his trust to elimination of redundancy. In its zeal to 29 people, because the occasion for its exercise foreign powers. streamline the text, the words ‘‘against the will arise from acts of great injury to the Confining Impeachment to criminal or United States’’ were eliminated as unneces- community, and the objects of it may be even codified offenses goes against the main- sary to the meaning of the passage.24 such as cannot be easily reached by an ordi- stream consensus on the meaning of ‘‘high The weight of both authoritative com- nary tribunal.14 Crimes and Misdemeanors’’ and would fail to mentary and the history of the Constitu- Iredell’s understanding sustains the view capture the universe of harms to the con- tional Convention combines to provide con- that an impeachable offense must cause stitutional order in which a President could vincing proof that the Impeachment process ‘‘great injury to the community.’’ Private engage. wrongdoing, without a significant, adverse was reserved for serious breaches of the con- D. Impeachment as a Remedy for Corrupting effect upon the nation, cannot constitute an stitutional order that threaten the country Foreign Influence impeachable offense. James Wilson, a dele- in a direct and immediate manner. gate to the Federal Constitutional Conven- C. An Impeachable Offense is Not Limited to The Founders were also gravely concerned tion and, like Iredell, later a Supreme Court Criminal Liability or A Defined Offense about the dangers of foreign influence cor- Justice, wrote that Impeachments are ‘‘pro- In the case before us, the President’s Coun- rupting our elections and interfering with ceedings of a political nature . . . confined to sel wholly reject a longstanding under- the rule of law.30 The United States was then political characters, to political crimes and standing of Impeachment, by arguing that a fledging union that had just gained inde- misdemeanors, and to political punish- abuse of power is not an impeachable offense pendence from Britain, with help from the ments.’’ 15 and by positing that ‘‘the Framers restricted French during the American Revolution. As

VerDate Sep 11 2014 04:10 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00025 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.111 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE S1186 CONGRESSIONAL RECORD — SENATE February 27, 2020 such, the Founders rightly feared that for- tional order, I believe that I am now required mising U.S. national security. As I will fur- eign governments might try to exploit Amer- to offer further analysis on which standard ther explain, the conduct described in Arti- ican politics in order to further their own in- of proof to apply. cle I amounts to an abuse of power and shows terests. During the Constitutional Conven- While the House Impeachment Managers in that President Trump remains an ongoing tion, Elbridge Gerry, a delegate from Massa- the current trial did not provide a single threat to the national interest if allowed to chusetts, warned that ‘‘[f]oreign powers will standard of proof required for conviction and remain in office. intermeddle in our affairs, and spare no removal, it was clear that the bar they set A. Abuse of Power Is an Impeachable Offense expence to influence them.’’ 31 was quite high, which is appropriate. How- A cardinal American principle that The Founders were also acutely aware of ever, what exact constitutional standard emerged during the drafting of the Constitu- the potential for public officials to betray should be used remains debatable. Practical tion is that no one is above the law. As dis- their office to a foreign power, if the tempta- concerns related to utilizing the Impeach- cussed in the previous section, this principle tion were strong enough. Hamilton conceded ment power should be considered when deter- was a chief subject of debate at the Constitu- in Federalist Paper No. 22 that ‘‘[o]ne of the mining the standard of proof required. Too tional Convention. The Framers understood weak sides of republics, among their numer- low of a standard may lead to removal, even that power corrupts and they would need to ous advantages, is that they afford too easy if significant doubts exist. A ‘‘. . . high build guardrails to protect the public good an inlet to foreign corruption.’’ 32 In Hamil- ‘criminal’ standard of proof could mean, in from a would-be authoritarian. The Framers ton’s view, when ordinary men are elevated practice, that a man could remain president were reacting to the overreach of King by their fellow citizens to high office, they whom every member of the Senate believed George III. ‘‘may find compensations for betraying their to be guilty of corruption, just because his Yet, the President’s Counsel argue that trust, which to any but minds animated and guilt was not shown ‘beyond a reasonable Impeachment is not an appropriate remedy guided by superior virtue, may appear to ex- doubt.’ ’’ 42 for abuse of power, arguing that the Framers ceed the proportion of interest they have in When uncertain about the standard of were not concerned about violations of the the common stock, and to over-balance the proof to apply, it is worth reviewing the public trust. The President’s Counsel instead obligations of duty. Hence it is that history writings of eminent scholars. In doing so, I argue that the Framers were primarily con- furnishes us with so many mortifying exam- have found a closer approximation to what cerned about an Executive that would be be- ples of the prevalency of foreign corruption the standard should be in many Impeach- holden to a heavy-handed legislature. In- in republican governments.’’ 33 ment trials as compared to those used in deed, during the debates at the Constitu- E. Conclusion general legal practice: ‘‘ ‘[o]verwhelming pre- tional Convention, this fear was raised by Authoritative commentary on, together ponderance of the evidence’ . . .’’ 43 Yet, I be- opponents of Impeachment. Rufus King, a with the structure of, the Constitution lieve that the severity of removing a Presi- delegate from Massachusetts, said ‘‘[im- makes it clear that the term, ‘‘other high dent of the United States warrants an even peachment by Congress] would be destruc- Crimes and Misdemeanors,’’ encompasses higher bar. As such, a definition slightly tive of his independence and of the principles conduct that involves the President in the modified, but modeled on that proposed of the Constitution. He relied on the vigor of impermissible exercise of the powers of his standard, is more applicable: overwhelm- the Executive as a great security for the 44 office to upset the constitutional order. ingly clear and convincing evidence. public liberties.’’ Clearly, King’s argu- Moreover, since the essence of Impeachment This standard more closely comports with ments did not carry the day. In drafting the Constitution, the Framers is removal from office, rather than punish- historical analysis of the Founders’ desire to had carefully calibrated the powers between ment for offenses, there is a strong inference separate criminal law and Impeachment, and Congress and the Executive. Ultimately, that the improper conduct must represent a the arguments made by scholars, while re- they decided that they could not leave the continuing threat to the American people flecting the serious constitutional harms al- nation without any recourse against a Presi- and the Constitution. It must be an episode leged in the Articles of Impeachment before dent who would be in a unique and potent po- that either cannot be dealt with in the the Senate. Further, after review of sub- sition to engage in any number of abusive Courts or that raises generalized concerns stantive differences between the Articles of acts. Without a mechanism to keep an out- about the continued service of the President, Impeachment that allege President Trump’s of-control President in check, there was lit- as is the case presented here. dire and ongoing threat to our constitutional order and the Articles of Impeachment lev- tle binding him to the law. Hamilton under- IV. STANDARD OF PROOF ied against President Clinton—which could scored the importance of the Impeachment In an Impeachment trial, each Senator has be more readily applied by analogy to crimi- process for holding the President liable by the obligation to establish the burden of nal law—a different standard is clearly war- drawing a contrast with the British mon- 34 proof he or she deems proper. The Founding ranted. In a future case, if Articles of Im- archy, for whom ‘‘there is no constitutional Fathers believed maximum discretion was peachment contain a set of facts or allega- tribunal to which he is amenable.’’ 45 critical for Senators confronting the gravest tions not contemplated in either the Clinton George Mason, a delegate from Virginia, 35 of constitutional choices. Differentiating Impeachment trial or in this case, I will underscores abuse of power as one of the key Impeachment from criminal trials, Alex- likely have to revisit this analysis. reasons for the need for presidential Im- ander Hamilton argued, in Federalist Paper The Articles, embodied in H. Res. 755, ac- peachment, asking ‘‘Shall any man be above No. 65, that Impeachments ‘‘can never be cuse the President of abuse of power and ob- Justice? Above all shall that man be above tied down by such strict rules . . . as in com- struction of Congress. After reading the ma- it, who can commit the most extensive injus- 46 mon cases serve to limit the discretion of terials and hearing the arguments presented tice?’’ Edmund Randolph, another delegate 36 courts in favor of personal security.’’ In at trial, I conclude that the evidence pre- from Virginia, concurred, noting that ‘‘[t]he this regard, Hamilton further distinguished sented at trial was more than compelling. In- Executive will have great opportunitys of Impeachment proceedings from a criminal deed, it was overwhelmingly clear and con- abusing his power[,]’’ and in such instances trial by stressing that an impeached official vincing. Having concluded that the charges ‘‘[g]uilt wherever found ought to be pun- 47 would be subject to the established rules of of abuse of power and obstruction of Con- ished.’’ 37 The Framers debate on these matters was criminal prosecution after Impeachment. gress rise to the level of ‘‘high Crimes and During the Clinton Impeachment trial, I prescient, as public officials have, in fact, Misdemeanors,’’ an analysis of the specific believed, as I do now, that the House Im- been found to have committed impeachable charges is necessary. peachment Managers bear the burden of offenses including abuse of power. Most well- proving their case.38 In that trial, the House V. ARTICLE I: ABUSE OF POWER known, President Nixon resigned after the Impeachment Managers asserted that the Article I of House Resolution 755 provides House Judiciary Committee (hereinafter Senators should reach a conclusion utilizing that, in the conduct of his office, the Presi- known as ‘‘Judiciary Committee’’) found he a beyond a reasonable doubt standard before dent abused his presidential powers, in viola- had abused his powers on multiple occa- voting to convict the President. The House tion of his constitutional duty to take care sions.48 Three district judges were also im- Impeachment Managers, explicitly stated, that the laws be faithfully executed, through peached during the 20th century for abusing ‘‘none of us, would argue . . . that the Presi- a scheme, or course of conduct, to solicit in- their power. In impeaching these judges, the dent should be removed from office unless terference of a foreign government, Ukraine, House used ‘‘abuse of power’’ to describe mis- you conclude he committed the crimes that in the 2020 U.S. presidential election for per- conduct ranging from the unlawful use of he is alleged to have committed.’’ 39 I chose sonal political gain. The scheme included contempt of court, to the ordering of a jury that standard of proof during that trial.40 As President Trump soliciting the Government to find a defendant guilty, to the improper I stated then, ‘‘[h]ad the charges of th[at] of Ukraine to publicly announce investiga- appointing of an associate to an official posi- case involved threats to our constitutional tions that would influence the 2020 U.S. pres- tion.49 order not readily characterized by criminal idential election to his advantage and the In stark contrast to the positions of the charges, I would have been forced to further disadvantage of a potential political oppo- Framers, the President’s Counsel argue that parse an exact standard. However, for all nent in that election. Article I provides fur- a President who does something to benefit practical purposes, the Managers have them- ther that President Trump, for corrupt pur- himself in a reelection, if he thinks it is in selves established the burden of proof in [the poses, used the powers of the Office in a man- the nation’s interest, has not committed an Clinton Impeachment] case.’’ 41 ner that injured the vital national interests impeachable offense. This is not a credible As the charges in this case against Presi- of the United States by harming the integ- argument because under this view, the Presi- dent Trump cut to the core of our constitu- rity of the democratic process and compro- dent would have free reign to solicit foreign

VerDate Sep 11 2014 04:33 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00026 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.113 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE February 27, 2020 CONGRESSIONAL RECORD — SENATE S1187 interference, unlawfully withhold security The scheme directed by the President com- forts to further the scheme. The President assistance, use his powers to target his polit- prised two separate efforts—both aimed to needed to undercut Vice President Biden as a ical opponents and engage in a whole host of damage his political rivals and benefit his candidate to enhance his chances of reelec- corrupt conduct that might help him get re- reelection prospects. The first effort was to tion.65 elected. This rings all too familiar of Presi- get the Ukrainian government to announce Successfully pressuring the Ukrainian gov- dent Nixon when he said ‘‘Well, when the an investigation into baseless accusations ernment to announce investigations into the president does it that means that it is not ille- propagated by a Russian disinformation 2016 campaign and Biden/Burisma theories gal.’’ 50 campaign,57 that Ukraine interfered in the was likely to garner the President several A.1. Definition of Abuse of Power 2016 election to benefit President Trump’s political benefits including help with his re- political rival, Hillary Clinton (hereinafter election efforts. As the House Impeachment Black’s Law Dictionary defines ‘‘abuse of referred to as the ‘‘2016 campaign theory’’). Managers state in their trial memo: power’’ as including ‘‘The misuse or im- The 2016 campaign theory comprised numer- Although these theories were groundless, proper exercise of one’s authority; esp., the ous unfounded allegations including that President Trump sought a public announce- exercise of a statutorily or otherwise duly Ukraine colluded with the Democrats to in- ment by Ukraine of investigations into them conferred authority in a way that is tortious, fluence the 2016 election and that the cyber- [2016/the Bidens] in order to help his 2020 re- unlawful or outside its proper scope.’’ 51 security company Crowdstrike, falsely al- election campaign. An announcement of a In its Impeachment inquiry of President leged to be owned by a Ukrainian oligarch, Ukrainian investigation into one of his key Richard Nixon, the Judiciary Committee investigated the hack of the Democratic Na- political rivals would be enormously valu- found the President repeatedly abused his tional Committee (DNC) computer infra- able to President Trump in his efforts to win power while in office.52 Among its findings, structure, and covered up evidence of reelection in 2020—just as the FBI’s inves- the Judiciary Committee determined that Ukrainian culpability in the cyber-attack by tigation into Hillary Clinton’s emails had President Nixon unlawfully directed or au- hiding the servers from the FBI inside helped him in 2016. And an investigation sug- thorized federal agencies, including the In- Ukraine.58 gesting that President Trump did not benefit ternal Revenue Service and the Federal Bu- President Trump’s fixation on the 2016 from Russian interference in the 2016 elec- reau of Investigation, to investigate and sur- campaign theory appears to have been in- tion would give him a basis to assert—false- veil American citizens, and used the result- tended to change public perceptions of Presi- ly—that he was the victim, rather than the ing information for his own political pur- dent Trump’s connection to Russia, in the beneficiary, of foreign meddling in the last poses.53 The Judiciary Committee further wake of the Intelligence Community assess- election. Ukraine’s announcement of that in- found that Nixon then interfered with inves- ment that Russia interfered in the 2016 elec- vestigation would bolster the perceived le- tigations into these and other actions to tion to support then candidate Trump,59 and gitimacy of his Presidency and, therefore, conceal his misconduct, and stressed that the Special Counsel’s mandate including to his political standing going into the 2020 Nixon’s actions in all of these instances review ‘‘any links or coordination between race.66 ‘‘served no valid national policy objec- the Russian government and individuals as- President Trump needed to obfuscate what tive.’’ 54 sociated with the Trump campaign.’’ 60 The was known and proven about Russian in- The Judiciary Committee concluded that Special Counsel noted ‘‘several [of President volvement on his behalf in the 2016 election the ‘‘conduct of Richard M. Nixon has con- Trump’s] advisors recalled that the Presi- to bolster the credibility of claims of stituted a repeated and continuing abuse of dent . . . viewed stories about his Russian Ukrainian Government involvement in the the powers of the presidency in disregard of connections, the Russian investigations and 2016 election and corruption allegations the fundamental principle of the rule of law the Intelligence Community assessment of against Vice President Biden ahead of the in our system of government. This abuse of Russian interference as a threat to the legit- 2020 election. By soliciting investigations the powers of the President was carried out imacy of his electoral victory.’’ 61 Further, in into the 2016 campaign and Biden/Burisma by Richard M. Nixon, acting personally and the spring of 2019, the Special Counsel af- theories, he sought to accomplish both of through his subordinates, for his own polit- firmed the assessments of the Intelligence those goals. ical advantage, not for any legitimate gov- Community and concluded that while there Throughout this scheme, which began in ernmental purpose and without due consider- was no direct conspiracy or coordination be- late 2018, President Trump employed Mr. 67 ation for the national good.’’ 55 tween the Kremlin and the Trump campaign, Giuliani as his principal agent, and enlisted In the current Impeachment of President ‘‘. . . the Russian government perceived it several U.S. government officials to assist Trump, the Judiciary Committee has defined would benefit from a Trump presidency and with efforts to compel Ukrainian officials to launch investigations into these baseless abuse of power as occurring ‘‘when a Presi- worked to secure that outcome, and that the theories. dent exercises the powers of his office to ob- campaign expected it would benefit tain an improper personal benefit while in- Mr. Giuliani involved associates in this electorally from information stolen and re- scheme, including Lev Parnas and Igor juring and ignoring the national interest.’’ 56 leased through Russian efforts . . .’’ 62 In di- From these sources, I have concluded that Fruman, both of whom have been indicted in recting this effort of the scheme, the Presi- the Southern District of New York for con- an abuse of power by a sitting President has dent was attempting to rewrite history by the following three elements: spiracy to violate election laws.68 Mr. Parnas having a foreign power make statements to and Mr. Fruman leveraged their Ukrainian 1) The use of official governmental power; validate his allegations that it was Ukraine 2) For personal or some other corrupt pur- connections to facilitate contacts between colluding with the Democrats rather than pose; Mr. Giuliani and then Ukrainian Prosecutor Russia interfering to benefit then candidate 3) Without due consideration for the na- General Yuriy Lutsenko and his predecessor Trump and exonerate himself of any wrong- tional interest. Victor Shokin to advance the scheme. Both President Trump’s conduct in soliciting doing or ties to Russia. Mr. Lutsenko69 and Mr. Shokin70 were re- In addition, the 2016 campaign theory foreign interference in the 2020 presidential moved from their positions under a cloud of sought to implicate the President’s political election meets each of these elements of the corruption. rival in 2016, former Secretary of State Hil- charge of abuse of power. Moreover, the de- The corrupt Ukrainian Prosecutors Gen- lary Clinton. As Deputy Assistant Secretary fenses put forth by the President’s Counsel eral Lutsenko and Shokin were among Mr. George Kent testified, the President ‘‘wanted are substantively deficient when viewed in Giuliani’s sources for the unfounded allega- nothing less than President [Zelensky] to go the context of the corrupt scheme conducted tions in support of the 2016 campaign and to [a] microphone and say investigations, by President Trump through his personal at- Biden/Burisma theories. During a January Biden, and Clinton.’’ He confirmed that 71 torney, Rudy Giuliani, starting in late 2018. 2019 call via Skype, Mr. Shokin asserted he ‘‘shorthand’’ for Clinton ‘‘was 2016.’’ 63 had overseen the investigation into B. The Corrupt Scheme The scheme also comprised a second effort Burisma.72 Mr. Shokin alleged that Vice President Trump engaged in a corrupt to get the Ukrainian government to an- President Biden forced his resignation to scheme to solicit foreign interference in the nounce an investigation into unfounded cor- stop further investigation into Burisma and 2020 presidential election to tarnish his polit- ruption allegations against former Vice cover up wrongdoing.73 He made additional ical rivals and bolster public perceptions of President Joe Biden and his son Hunter allegations including that he had wanted to the legitimacy of his 2016 electoral victory. Biden (hereinafter referred to as ‘‘Biden/ come to the United States to share informa- The corrupt scheme served to benefit the Burisma theory’’). The allegations associ- tion regarding corruption at the Embassy, President in a personal, political manner, ated with this theory surround Vice Presi- and that U.S. Ambassador to Ukraine Marie and was contrary to the national interest. dent Biden’s successful pressuring of Ukrain- Yovanovitch denied him a U.S. visa because President Trump repeatedly misused the ian President Poroshenko to remove Ukrain- she was close to Vice President Biden.74 Mr. powers of the presidency to increase pressure ian Prosecutor General Victor Shokin in Shokin later provided an affidavit espousing on Ukraine to further the corrupt scheme, 2016, who purportedly was investigating a allegations against Vice President Biden, including withholding a White House meet- Ukrainian energy company, Burisma, on which explicitly stated that his sworn state- ing and U.S. military assistance that the whose board Hunter Biden served.64 Vice ment was made at the behest of a pro-Putin Ukrainians desperately need to counter Rus- President Biden is a potential presidential Ukrainian oligarch.75 sia. This scheme continued even after a whis- challenger to President Trump in the 2020 Also, in January 2019, Mr. Giuliani met in tleblower exposed the President’s efforts and Presidential election and was viewed as a New York with Yuriy Lutsenko, who was even following the launch of the Impeach- frontrunner during the spring and summer of then the Ukrainian Prosecutor General. Dur- ment inquiry by the House. 2019 when President Trump directed such ef- ing these initial conversations with Mr.

VerDate Sep 11 2014 04:33 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00027 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.114 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE S1188 CONGRESSIONAL RECORD — SENATE February 27, 2020 Giuliani, Mr. Lutsenko made multiple alle- deed weigh in with the President of Ukraine dling in an investigation,’’ 103 and that Presi- gations that Ukrainian government officials to have Shokin fired but the motivations for dent Trump was aware of his activities.104 interfered in the 2016 election to help Demo- that are entirely different from those con- In trying to arrange a meeting with Presi- cratic candidate Hillary Clinton. He also tained in that allegation.’’ 94 Vice President dent Zelensky, Mr. Giuliani was acting in a made allegations about corrupt practices at Biden, acting as the point person for Ukraine private capacity, not as a public official or Burisma and raised the possibility that there policy in the Obama Administration, was to advance official U.S. policy. On May 10, could have been improper payments to Hun- representing the interests of the United 2019, Mr. Giuliani wrote to then President- ter Biden. In addition, Mr. Lutsenko made States and the international community,95 Elect Zelensky, to request a meeting in his false allegations against U.S. Ambassador to promoting increased transparency, corrup- capacity as ‘‘personal counsel to President Ukraine Marie Yovanovitch.’’ 76 tion reform, and the rule of law.96 Vice Presi- Trump and with his knowledge and con- Using these unfounded allegations, Mr. dent Biden’s public statements from the sent.’’ 105 Mr. Giuliani made clear in the let- Giuliani launched a disinformation cam- time reflect such efforts, focusing on com- ter he was representing Donald Trump as a paign on traditional and social media. In the batting corruption and institutional reform private citizen, not as President of the spring of 2019, Mr. Giuliani and his associates rather than specific companies, such as United States. While the letter did not state worked with columnist John Solomon, who Burisma.97 the purpose of the requested meeting, Mr. wrote a series of articles in The Hill, ampli- The President’s Counsel made misleading Giuliani stated publicly on the same day fying the false allegations of Mr. Lutsenko assertions that U.S. Government officials that he intended to tell President Zelensky and Mr. Shokin.77 Through these columns warned the Vice President of the appearance to pursue investigations into the 2016 cam- and a related interview, Mr. Lutsenko an- of wrongdoing in an attempt to convince him paign and Biden/Burisma theories.106 Then on nounced he was opening investigations into to take corrective action. One person they May 11th, Mr. Giuliani abruptly cancelled aspects of both the 2016 campaign and Biden/ cited was Amos Hochstein, a diplomat who his trip to Ukraine, declaring that President- 78 79 Burisma theories. The President, his son served in the Obama Administration.98 Mr. Elect Zelensky had surrounded himself with Donald Trump Jr.,80 and Mr. Giuliani 81 am- Hochstein did raise the matter with the Vice ‘‘enemies of the President’’ (referring to 107 plified the false allegations by retweeting President but did not recommend that Hun- President Trump). 82 President Trump intertwined Mr. the articles. President Trump and Mr. ter Biden resign from the board of Burisma.99 Giuliani 83 also repeated the false allegations By mid-May 2019, Mr. Lutsenko publicly Giuliani’s private mission and the activities contained in The Hill articles during press recanted previous allegations he made to Mr. of public officials when he directed U.S. offi- interviews. Giuliani, including admitting that he had no cials to aid his personal attorney in advanc- ing this scheme. At a May 23rd meeting in In furtherance of the corrupt scheme, evidence of wrongdoing by Vice President the Oval Office, President Trump was briefed President Trump directed the removal of Biden or Hunter Biden.100 Ambassador by Ambassador Paul Volker, Ambassador Ambassador Yovanovitch. As laid out in the Volker explained Mr. Lutsenko’s motiva- Gordon Sondland, and Secretary of Energy Statement of Material Facts by the House tions for making these baseless accusations, Rick Perry, who would subsequently describe Impeachment Managers, ‘‘the removal of ‘‘My opinion of Prosecutor General Lutsenko themselves as the ‘‘Three Amigos,’’ (herein- Ambassador Yovanovitch was the culmina- was that he was acting in a self-serving man- after referred to as the ‘‘Three Amigos’’) on tion of a months-long smear campaign waged ner, frankly making things up, in order to their recent trip to attend the inauguration by the President’s personal lawyer, Rudy appear important to the United States, be- of President Zelensky.108 Witness testimony Giuliani, and other allies of the President. cause he wanted to save his job.’’ 101 indicates that despite their positive assess- The President also helped amplify the smear At no point during the trial did the Presi- 84 ments about President Zelensky, President campaign.’’ Ambassador Yovanovitch testi- dent’s Counsel dispute the facts surrounding Trump was unconvinced, and replied that the fied she was told her removal from post was the scheme. The record is clear that the 85 Ukrainians tried to ‘‘take me down’’ in 2016, not for cause. Mr. Giuliani later admitted President directed the corrupt scheme to so- referring to the debunked 2016 campaign the- he ‘‘believed that [he] needed Ambassador licit investigations into the 2016 campaign ory.109 The President resisted the rec- Yovanovitch out of the way’’ because ‘‘[s]he and Biden/Burisma theories for his personal ommendation of the Three Amigos to invite was going to make the investigations dif- political gain. ficult for everybody.’’ 86 Documents obtained President Zelensky to the White House, and by the House Permanent Select Committee C. President Trump’s Misuse of his Office to Ad- instead repeatedly directed these three offi- on Intelligence further confirm that the Am- vance the Corrupt Scheme cials to ‘‘talk to Rudy.’’ 110 Ambassador bassador’s firing was part of the effort to fur- President Trump used the powers of his of- Sondland testified that he understood this to ther the corrupt scheme. A text message fice to advance the corrupt scheme through refer to Mr. Giuliani and that ‘‘if we did not from Ukrainian Prosecutor General multiple efforts, violating the public trust talk to Rudy, nothing would move forward Lutsenko warned Giuliani associate Lev and placing his own personal political inter- on Ukraine.’’ 111 Ambassador Sondland fur- Parnas that if they didn’t fire Ambassador ests above the interests of the nation. In ther explained that they chose to follow the Yovanovitch, ‘‘you are bringing into ques- doing so, the President abused the power of President’s direction to communicate with tion all my allegations including about his office. Mr. Giuliani, not because they liked it, but ‘‘B.’’ 87 Mr. Parnas confirmed in a press inter- C.1. President Trump Solicited Ukrainian Presi- because ‘‘it was the only constructive path view that the ‘‘B’’ referred to Hunter Biden.88 dent Zelensky to Open Investigations into open to us.’’ 112 As previously discussed, both the 2016 cam- the 2016 Campaign and Biden/Burisma The Three Amigos frequently operated out- paign and Biden/Burisma theories are un- Theories side regular diplomatic channels between the United States and Ukraine, but their activi- founded. The 2016 campaign theory is an ac- President Trump abused the powers of his 89 ties were not a secret to the President’s na- tive Russian disinformation campaign. On office in order to advance the corrupt tional security officials. Ambassador Bill December 9, 2019, FBI Director Christopher scheme by attempting to leverage the Taylor, Charge d’affaires at the U.S. Em- Wray stated, ‘‘We have no information that Ukrainian desire for an Oval Office meeting bassy in Kyiv, described in his testimony indicates that Ukraine interfered with the and U.S. security assistance as a quid pro 90 how, while he operated in the regular chan- 2016 presidential election.’’ quo for Ukrainian investigations into his po- Further, the President’s own national se- nel of U.S. policymaking regarding Ukraine, litical opponents that would benefit his re- curity officials have rejected the claim that beginning on May 23rd there emerged ‘‘an ir- election in 2020. Starting in May 2019, Presi- the Ukrainian government systematically regular, informal channel,’’ consisting of dent Trump directed a sustained campaign interfered in the 2016 election, including re- Special Envoy Volker, Ambassador to solicit newly-elected Ukrainian President futing the theory that Ukraine was behind Sondland, Secretary Perry, and Mr. Zelensky to undertake investigations into the hack of the DNC servers.91 Trump Home- Giuliani.113 As Ambassador Sondland testi- the 2016 campaign and Biden/Burisma theo- land Security adviser Tom Bossert stressed, fied, ‘‘everyone was in the loop,’’ 114 further ries. ‘‘[t]he DNC server and that conspiracy the- clarifying that President Trump, Secretary ory has got to go, they have to stop with C.1.a. President Trump conditioned an Oval Of- Pompeo, Mr. Giuliani, and Acting Chief of that, it cannot continue to be repeated . . . fice meeting on investigations into the 2016 Staff Mick Mulvaney were kept informed of in our discourse.’’ 92 campaign and Biden/Burisma theories the activities undertaken by the Three Ami- With regards to the Biden/Burisma theory, President Trump’s misuse of his official gos. Fiona Hill, National Security Council no proof of any wrongdoing has been made to powers, with regard to this matter, began Director for European and Russian Affairs, support this claim.93 No evidence has been shortly after Volodymyr Zelensky won the concluded that Ambassador Sondland was presented showing Vice President Biden spe- Ukrainian presidential election on April 21, correct that he was keeping the relevant of- cifically discussed Burisma with then Presi- 2019. In early May, Mr. Giuliani announced ficials informed of his activities because he dent Poroshenko in relation to the removal that he planned to travel to Ukraine to meet was ‘‘involved in a domestic political er- of the corrupt Prosecutor General. Further- with President-elect Zelensky ‘‘to urge him rand’’ while she and other government offi- more, U.S. diplomats, such as Former Spe- to pursue inquiries’’ into ‘‘the origin of the cials were conducting U.S. national security cial Envoy to Ukraine Ambassador Kurt Special Counsel’s investigation into Russia’s foreign policy, and ‘‘those two things had Volker defended Vice President Biden’s ac- interference in the 2016 election’’ and Hunter just diverged.’’ 115 tions. In his closed interview with the House Biden’s ‘‘involvement’’ in Burisma.102 Mr. The purpose of these two channels diverged Committees, Volker stated, ‘‘There is clear Giuliani admitted that he was not con- as well: while the career diplomats were en- evidence that Vice President Biden did in- ducting ‘‘foreign policy’’ but rather ‘‘med- gaged in promoting U.S. national security

VerDate Sep 11 2014 04:33 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00028 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.116 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE February 27, 2020 CONGRESSIONAL RECORD — SENATE S1189 interests in supporting Ukraine in its fight lion in Department of Defense Ukraine Secu- specified circumstances, and included a re- against Russian aggression, the irregular rity Assistance Initiative (USAI) funding and quirement to inform Congress. At no point channel was engaged in pursuing a quid pro $141 million in State Department Foreign did the Trump Administration either assert quo to secure Ukrainian investigations into Military Financing (FMF). At an inter- that it was impounding the Ukraine security the 2016 campaign and the Biden/Burisma agency meeting on July 18, 2019, a week be- assistance or inform Congress of any deferral theories for the benefit of the President’s fore the Trump-Zelensky phone call, OMB of- or rescission of funds. In reviewing the 2020 reelection. At the direction of the Presi- ficials instructed relevant U.S. government OMB’s withholding of funds appropriated to dent, as conveyed through Mr. Giuliani and departments and agencies to withhold obli- the Department of Defense for Ukraine secu- Acting White House Chief of Staff Mick gation of the Ukraine security assistance at rity assistance, the Government Account- Mulvaney, the Three Amigos pursued a quid the direction of the President.128 According ability Office concluded that OMB violated pro quo—the offer of a politically valuable to multiple witnesses, OMB did not provide a the ICA.137 Oval Office meeting with President Trump in reason for the President’s hold on the C.1.c. President Trump conditioned a White exchange for President Zelensky announcing Ukraine aid.129 OMB maintained this hold on House meeting and Ukrainian security assist- the desired investigations. Ambassador Ukraine security assistance through Sep- ance on investigations Sondland testified ‘‘Mr. Giuliani’s requests tember 11th, when OMB lifted the hold, again The House Impeachment Managers’ record were a quid pro quo for arranging a White without providing a rationale for the change demonstrates overwhelmingly that President 130 House visit for President Zelensky.’’ 116 of course. Trump conditioned both a White House The President’s Counsel claim that the The evidence shows that by early July, the meeting and nearly $400 million in U.S. secu- President’s hold on security assistance was message was conveyed to Ukrainian officials rity assistance for Ukraine on a commitment because of a policy difference, but that claim that investigations were a prerequisite for by President Zelensky to conduct investiga- is not supported by the evidence. The man- their desired White House meeting. Ambas- tions for the personal political benefit of ner in which the White House placed the hold sador Volker testified that when the Oval Of- Donald Trump. The President’s scheme to se- on security assistance for Ukraine differed fice meeting was not scheduled by late June, cure corrupt investigations to benefit his re- significantly from the process in which holds he ‘‘came to believe that the President’s election efforts converged with his official of assistance to other countries based on pol- long-held negative view toward Ukraine was duties during a July 25, 2019, phone call with icy considerations had previously occurred. causing hesitation in actually scheduling the President Zelensky. The President’s actions As the House Impeachment Managers stated, meeting.’’ 117 At a bilateral meeting in To- during that phone call, understood in the ‘‘What the President did is not the same as ronto in early July, Ambassador Volker tes- context of the broader corrupt scheme, are routine withholding of foreign aid to ensure tified that he told alerted President compelling evidence that the President solic- that it aligns with the President’s policy pri- Zelensky that he couldn’t get a date sched- ited foreign interference in U.S. elections. uled for the White House meeting. Ambas- orities or to adjust with geopolitical devel- The President’s own words during the July 131 sador Volker relayed to President Zelensky, opments.’’ The President began asking 25th call, as summarized in a memorandum ‘‘I think we have a problem here, and that about the hold based on the announcement of telephone conversation released by the of the release of funds, after the Department problem being the negative feed of informa- White House, demonstrate the President’s of Defense had certified that the Ukrainian tion from Mr. Giuliani.’’ 118 Ambassador demand for a quid pro quo.138 Far from show- government made progress on corruption re- Volker further testified that during the To- ing the ‘‘perfect call’’ that President Trump form, showing that the hold was not placed ronto meeting, he specifically mentioned in- claims,139 the memorandum of the telephone due to policy considerations. Further, no vestigations into ‘‘2016’’ election and conversation makes clear that the President geopolitical circumstances had changed in ‘‘Burisma’’ with President Zelensky.119 Soon solicited politically-motivated investiga- that timeframe to warrant the placing of a after this warning, President Zelensky’s tions from President Zelensky in exchange hold on security assistance funds to Ukraine. for a White House meeting and U.S. military close aide Andriy Yermak asked to be con- In addition, despite substantial evidence 120 aid. When the Ukrainian President indicated nected with Mr. Giuliani. that U.S. government officials were deeply The President’s conditions for securing a he would be seeking additional U.S. military concerned about conflicts with the Impound- White House meeting were communicated an arms that Ukraine desperately needed for its ment Control Act (ICA), there was no notifi- additional time, during a July 10, 2019, bilat- conflict with Russia, President Trump re- cation of the delay to Congress as required eral meeting led by then National Security sponded by requesting that President by this law, belying the idea that the Presi- Adviser John Bolton and then Ukrainian Na- Zelensky do him ‘‘a favor though.’’ 140 The dent harbored legitimate concerns about pol- tional Security Adviser Oleksandr memorandum of the telephone conversation icy.132 Congress has an established bipartisan Danylyuk. During the meeting, the Ukrain- makes clear that the favor President Trump record of robust support for Ukraine. Since ian delegation raised their desire to have a sought as a condition for future military aid 2014, the United States has provided more White House meeting.121 NSC official Hill was the two investigations into the 2016 cam- than $3.5 billion in foreign assistance to testified that Ambassador Sondland, who paign and the Biden/Burisma theories. Presi- Ukraine: $1.96 billion in military and other was in attendance at the meeting, responded dent Trump went on to espouse many of the security assistance and $1.6 billion in polit- to the Ukrainian request by stating, ‘‘We allegations associated with the debunked ical aid to Ukraine, all illustrating a policy have an agreement that there will be a meet- 2016 campaign theory, including that support to Ukraine furthers U.S. na- ing, if specific investigations are put under ‘‘Crowdstrike,’’ and ‘‘one of your wealthy tional security interests.133 Interagency con- way.’’ 122 NSC official Lt. Col. Vindman testi- people,’’ falsely insinuating that a Ukrainian versations while the hold was in place re- fied that during that afternoon’s meetings oligarch owned the cybersecurity firm that flected concerns that withholding the funds 141 with the Ukrainian delegation, Ambassador investigated the DNC hack. He then al- would in fact violate the ICA,134 yet there Sondland ‘‘emphasized the importance of leged that Ukraine has the server and added, were no plans to notify Congress or rescind Ukraine delivering the investigations into ‘‘. . . They say a lot of it started in Ukraine. the funds as required by under the ICA. Fur- 2016 elections, the Bidens and Burisma.’’ 123 Whatever you can do, it’s very important ther, when OMB official Mike Duffey di- 142 Later, Ambassador Sondland told Dr. Hill that you do it. . .’’ Later in the phone rected Acting DOD Comptroller Elaine that there was agreement with Mr. call, President Trump mentioned ‘‘the other McCusker to formally hold the assistance for Mulvaney that there would be a White House thing’’ he wanted investigated, declaring Ukraine, he added, ‘‘Given the sensitive na- meeting with President Zelensky ‘‘in return that there was ‘‘a lot of talk about’’ Vice ture of the request, I appreciate your keep- President ‘‘Biden’s son,’’ and that Vice for investigations.’’ 124 According to Dr. Hill, ing that information closely held to those President ‘‘Biden stopped the prosecu- Ambassador Bolton was so alarmed that he who need to know to execute the direc- tion.’’ 143 President Trump told President told her to inform the lawyers about what tion.’’ 135 The secrecy maintained by Admin- Zelensky, ‘‘A lot of people want to find out happened in the meeting, adding that he was istration officials regarding the hold on this about that, so whatever you can do with the not be part of ‘‘whatever drug deal that security assistance differs significantly from Attorney General would be great.’’ 144 In ad- Mulvaney and Sondland are cooking up.’’ 125 past practice and supports the inference that dition, it must be noted President Trump C.1.b. President Trump withheld military they were aware that the hold was contrary specifically urged President Zelensky to call assistance to U.S. policy and that they had no legiti- Mr. Giuliani, as well as Attorney General President Trump also used the powers of mate policy justification for a change in U.S. Barr,145 regarding investigations into the his office to order, through the Office of policy. 2016 campaign and Biden/Burisma theories.146 Management and Budget (OMB), the with- In withholding the security assistance for Given all of the steps taken by Mr. Giuliani holding of congressionally appropriated se- Ukraine, the President violated his duty to leading up to the call, including his letter to curity assistance to Ukraine. The evidence faithfully execute the laws. Congress enacted President Zelensky and public statements shows that the President fixated on a June the ICA in 1974 as one of many responses to urging President Zelensky to undertake in- 19, 2019 article in the Washington Examiner the abuses of President Nixon in order to re- vestigations into the 2016 campaign and announcing the release of Ukraine security quire the President to obligate funds appro- Biden/Burisma theories, it is clear that assistance as an additional leverage point to priated by Congress, unless Congress other- President Trump was signaling that he want- further the corrupt scheme.126 By no later wise authorizes the withholding.136 The ICA ed these investigations. than July 12, 2019,127 President Trump or- provides the President with narrowly cir- The President’s Counsel disputed the no- dered a hold on $391 million in security as- cumscribed authority to withhold, or ‘‘im- tion that there was a quid pro quo by claim- sistance for Ukraine, consisting of $250 mil- pound,’’ appropriated funds only in limited, ing that President Zelensky was not aware

VerDate Sep 11 2014 04:33 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00029 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.118 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE S1190 CONGRESSIONAL RECORD — SENATE February 27, 2020 of an arrangement and he felt no pressure Trump and Zelensky, Ambassador Sondland pressure in furtherance of the scheme. Start- during the July 25th phone call. However, called President Trump from Kyiv. Accord- ing in early August, Ambassadors Volker evidence shows that the President’s surro- ing to testimony from David Holmes, Coun- and Sondland, in coordination with Mr. gates prepped President Zelensky ahead of selor for Political Affairs at the U.S. Em- Giuliani, attempted to get President the call to say that he would conduct inves- bassy who overheard the phone call, Presi- Zelensky to publicly announce investiga- tigations into the 2016 campaign and Biden/ dent Trump asked Ambassador Sondland, tions into the 2016 campaign and Biden/ Burisma theories in order to get a White ‘‘So he’s going to do the investigation?’’ re- Burisma theories.170 Ambassadors Volker House meeting. Ambassadors Volker and ferring to the 2016 campaign and Burisma/ and Sondland worked in conjunction with Sondland had multiple exchanges with Presi- Biden theories.156 Holmes also testified that President Zelensky’s aide Mr. Yermak to dent Zelensky and his aide Mr. Yermak he asked Ambassador Sondland that same generate an acceptable statement.171 After ahead of the call. Ambassador Volker, after day if President Trump cared about Ukraine. the initial Ukrainian draft of the statement having breakfast with Mr. Giuliani, told Am- Sondland responded that President ‘‘Trump contained only a general commitment from bassador Taylor and Ambassador Sondland only cared about ‘big stuff’ that benefits the President Zelensky to fight corruption, Am- via text, ‘‘Most important is for Zelensky to President, like the ‘Biden investigation’ that bassadors Volker and Sondland consulted say that he will help with investigation.’’ 147 Mr. Giuliani was pushing.’’ 157 Mr. Giuliani who responded that if the state- That same day, Ambassador Sondland di- Most telling, President Trump’s Acting ment ‘‘doesn’t say Burisma and 2016, it’s not 172 rected President Zelensky to tell President Chief of Staff Mick Mulvaney publicly ad- credible.’’ Ambassador Volker then re- Trump, he would ‘‘run a fully transparent in- mitted at a press conference on October 17th vised President Zelensky’s draft statement to include specific references to ‘‘Burisma’’ vestigation and turn over every stone,’’ 148 that withholding the security assistance for and ‘‘the 2016 U.S. elections.’’ 173 No state- which he indicated in testimony referred to Ukraine provided leverage to convince ment was ever released by President the ‘‘Burisma and the 2016’’ investigations.149 Ukraine to investigate the source of the Zelensky, and Ambassador Volker testified The morning of the July 25th call, Ambas- hack of the DNC servers in 2016, an aspect of the 2016 campaign theory.158 Mr. Mulvaney that it was because the Ukrainians realized sador Sondland spoke to President Trump that making such a statement was tanta- and then alerted Ambassador Volker to con- confirmed that President Trump ‘‘[a]bsolutely’’ raised ‘‘corruption related to mount to a quid pro quo.174 tact him.150 Approximately a half hour later, Furthermore, witness testimony shows Ambassador Volker texted Zelensky aide Mr. the DNC server’’ and added that was part of ‘‘why we held up the money.’’ 159 When a re- that as the hold on the security assistance Yermak, ‘‘Heard from White House—assum- continued through the late summer, U.S. ing President Z[elensky] convinces Trump he porter pointed out that he had just described a quid pro quo, Mr. Mulvaney stated, ‘‘We do government officials realized the connection will investigate/ ‘get to the bottom of what between the hold and the President’s desire that all the time with foreign policy’’ and happened’ in 2016, we will nail down a date for Ukrainian announcements of investiga- told everyone to ‘‘Get over it. There’s going for a visit in Washington.’’ 151 tions into President Trump’s political rivals. to be political influence in foreign pol- The memorandum of the telephone con- By early September, Ambassador Taylor said icy.’’ 160 versation shows that President Zelensky un- his ‘‘clear understanding’’ was that Presi- Despite the assertions of the President’s derstood the messages that he was told to dent Trump would withhold security assist- counsel, evidence indicates that the convey during the call and followed those in- ance until President Zelensky ‘‘committed Zelensky Administration knew that there structions. During the call, President to pursue the investigations.’’ 175 Ambassador was a problem with the security assistance Zelensky said to President Trump, ‘‘I also Taylor further testified that his contempora- wanted to thank you for your invitation to well before the hold was reported publicly on neous notes reflect that President Trump 161 visit the United States, specifically Wash- August 28, 2019. The same afternoon of the wanted President Zelensky ‘‘in a box by ington D.C. On the other hand, I also want to July 25th phone call, Department of Defense making [a] public statement about ordering ensure you that we will be very serious officials learned that diplomats at the such investigations.’’ 176 Ambassador about the case and will work on the inves- Ukrainian Embassy in Washington had made Sondland explained to Ambassador Taylor tigation.’’ 152 Lt. Col. Vindman testified that multiple overtures to the Pentagon and the that ‘‘everything’’ (the Oval Office meeting aspects of the call, including President State Department ‘‘asking about security as- and security assistance) ‘‘was dependent on 162 Zelensky bringing up Burisma, suggested sistance.’’ Separately, during that same the Ukrainian government announcing the that he was ‘‘prepped’’ for this call.153 Presi- time frame, two different officials at the political investigations.’’ 177 Ambassador dent Zelensky knew what ‘‘favor’’ President Ukrainian Embassy contacted Ambassador Taylor responded to Ambassador Sondland Trump was asking for as a condition for re- Volker’s special assistant, Catherine Croft, that he thought it was ‘‘crazy to withhold se- 163 ceiving the White House meeting. to ask her in confidence about the hold. In curity assistance for help with a political early August 2019, the Ukrainians reportedly 178 C.1.d. The actions of Administration officials campaign.’’ Foreign Service Officer David made further inquiries about the security as- Holmes testified that his ‘‘clear impression’’ following the July 25th phone call dem- sistance funds.164 The message sent back was onstrate that the President conditioned U.S. around the same time was that ‘‘the security that the holdup was not bureaucratic in na- assistance hold was likely intended by the military aid to Ukraine and the White House ture, and that to address it they were ad- meeting on President Zelensky announcing President either to express dissatisfaction vised to reach out to Mick Mulvaney.165 NSC with the Ukrainians who had not yet agreed the investigations into the 2016 campaign and official Lt. Col. Vindman testified that by Biden/Burisma theories to the Burisma/Biden investigations, or as an mid-August 2019, he had also received inquir- effort to increase the pressure on them to do The President’s Counsel allege that there ies about the hold on the security assistance so.’’ 179 is no evidence that the President conditioned from an official at the Ukrainian Embassy.166 Once the hold on the security assistance U.S. military aid for Ukraine or the White Evidence and reporting regarding the was reported in the press in late August 2019, House meeting on a commitment by Presi- President’s interactions with then National the conditions for releasing the assistance dent Zelensky to announce investigations Security Adviser John Bolton further con- were soon overtly communicated to Presi- into the 2016 campaign and Biden/Burisma firms that the President held security assist- dent Zelensky. President Trump’s surrogates theories. The President’s Counsel assert that ance in order to further the corrupt scheme. informed President Zelensky and his aides any claims that President Trump made any On August 16, 2019, Ambassador Bolton re- that the security assistance was held up as a such linkage, particularly relating to the portedly made a personal appeal to President result of President Zelensky’s unwillingness military assistance, are unsupported and Trump to release the security assistance for to announce the investigations into Presi- based on second or third-hand sources and Ukraine and was ‘‘rebuffed.’’ 167 NSC official dent Trump’s political rivals. These direc- speculation. They claim that no one with Tim Morrison affirmed this account in his tions came from the President.180 Ambas- first-hand knowledge of the President’s testimony. Mr. Morrison testified that Am- sador Sondland testified that he had passed a thinking came forward and testified that he bassador Bolton said President Trump, message directly to President Zelensky’s conditioned the delivery of these official acts ‘‘wasn’t ready’’ to release the aid.168 Accord- aide Mr. Yermak on September 1, 2019, that, for Ukraine on the investigations. These ing to news reports that emerged during the ‘‘I believed that the resumption of U.S. aid claims are both disingenuous and wrong.154 Impeachment trial, an account from Ambas- would not likely occur until Ukraine took Furthermore, the actions of Administra- sador Bolton’s forthcoming book reportedly some kind of action on the public statement tion officials after the July 25th phone call makes this link even more explicit. that we had been discussing for weeks.’’ 181 make clear President Trump’s request was a Ambassador Bolton stated during the Au- Affirming this account, Ambassador Taylor quid pro quo. Approximately 90 minutes gust meeting, President Trump ‘‘appeared fo- testified that Ambassador Sondland told him after the call, OMB official Mike Duffey di- cused on the theories Mr. Giuliani had he had warned President Zelensky and Mr. rected Acting DoD Comptroller McCusker to shared with him, replying to Mr. Bolton’s Yermak that, ‘‘although this was not a quid formally hold the Department of Defense se- question that he preferred sending no assist- pro quo, if President Zelensky did not clear curity assistance for Ukraine.155 ance to Ukraine until officials turned over things up in public, we would be at a stale- In addition, conversations on July 26, 2019, all materials they had about the Russia in- mate.’’ 182 President Zelensky apparently un- detail that President Trump appeared solely vestigation that related to Mr. Biden and derstood the message because arrangements focused on whether efforts to pressure Presi- supporters of Mrs. Clinton in Ukraine.’’ 169 were made for the Ukrainian President to go dent Zelensky to initiate the investigations The record also shows that after the July on CNN to announce the investigations.183 had been successful. On July 26th, the day 25th Trump-Zelensky phone call, President The President’s Counsel argue that there after the phone call between Presidents Trump directed a campaign to increase the could not have been a quid pro quo because

VerDate Sep 11 2014 04:33 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00030 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.119 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE February 27, 2020 CONGRESSIONAL RECORD — SENATE S1191 the Ukrainians ultimately got the funding President’s Counsel asserted that President Ukrainian officials do not indicate that without making the commitment to conduct Trump had longstanding concerns about cor- President Trump held Ukrainian security as- the investigations. Essentially, they argue ruption and burden-sharing by European al- sistance due to concern about corruption in ‘‘no harm, no foul.’’ However, the President’s lies in support of Ukraine. Upon careful re- Ukraine. As discussed earlier, Ambassador solicitation of the politically-motivated in- view of the record, these assertions simply Volker and Ambassador Sondland had mul- vestigations in exchange for official acts is do not square with the facts. While there is tiple contacts with President Zelensky and in and of itself an abuse of his office and the some basis for the assertion that President his close aide Mr. Yermak ahead of the July public trust. Further, President Trump re- Trump cared about these issues, they were 25th call. No evidence shows that President leased the hold on the security assistance not the basis for the withholding of Ukraine Zelensky was advised to outline steps he was only after a whistleblower’s complaint had security assistance. taking to address corruption on the call.204 been provided to Congress and three House Evidence shows that President Trump’s so- Similarly, previously discussed diplomatic committees had initiated an investigation licitation alarmed Administration officials efforts in August focused on securing a pub- into the hold. On August 12, 2019, a whistle- who listened in to the July 25th call, and lic commitment by President Zelensky to in- blower filed a complaint with the Intel- their concerns did not stem from policy dif- vestigate the 2016 campaign and Biden/ ligence Community’s Inspector General, ferences. NSC official Lt. Col. Vindman tes- Burisma theories specifically, and a commit- tified that he was ‘‘concerned’’ about the call which stated multiple U.S. government offi- ment to pursue corruption generally was and ‘‘did not think it was proper to demand cials had told him or her information indi- deemed insufficient to meet President that a foreign government investigate a U.S. cating that the ‘‘President of the United Trump’s request.205 citizen.’’ 193 Vice Presidential aide Jennifer States is using the power of his office to so- The evidence also does not indicate that Williams, who also listened to the July 25th President Trump used official auspices to un- licit interference from a foreign country in call, testified she found it, ‘‘unusual because, the 2020 U.S. election.’’ 184 The complaint dertake a corruption investigation in fur- in contrast to other Presidential calls I had therance of official U.S. government policy. cited the July 25th call between Presidents observed, it involved discussion of what ap- Trump and Zelensky, the placing of the call If the President was interested in pursuing a peared to be a domestic political matter.’’ 194 particular corruption investigation with the on a codeword server, and other cir- Ms. Williams was informed of the security cumstances surrounding the call including Government of Ukraine, he could have done assistance hold on July 3rd and stated that so through established diplomatic channels. the role of Mr. Giuliani.185 The President was the call ‘‘shed some light on possible other reportedly briefed by White House Counsel The President could have directed his Attor- motivations behind a security assistance ney General to make an official request of on the existence of a whistleblower com- 195 hold.’’ Lt. Col. Vindman and NSC official Ukraine to initiate investigations into cor- plaint in late August.186 On September 9, Tim Morrison were sufficiently concerned ruption under the existing Mutual Legal As- 2019, the whistleblower complaint was re- that they separately reported the contents of sistance Treaty (MLAT) with Ukraine.206 In ferred to Congress.187 On the same day, the the call to NSC lawyers, Mr. Eisenberg and this instance, President Trump did not take House Permanent Select Committee on In- 196 Mr. Ellis. The President’s lawyers, in turn, such action. Rather, in the July 25th call, telligence, the House Committee on Over- took steps to restrict access to the rough President Trump asked President Zelensky sight and Government Reform, and the transcript of the call by placing it on a high- to work with both his personal attorney, Mr. House Committee on Foreign Affairs opened ly-restricted classified server.197 Giuliani, and Attorney General Barr to pur- an inquiry into the circumstances sur- Furthermore, the President’s Counsel’s sue investigations into his political rivals.207 rounding the hold.188 The President subse- claim that security assistance for Ukraine Further, supporting the idea that the Presi- quently lifted the hold on September 11, was withheld over concerns about corruption dent did not ask for any official investiga- 2019.189 is unfounded. On May 23, 2019, the Depart- Moreover, the corrupt scheme did not end ment of Defense certified to Congress that tions, the DOJ has denied knowledge of any even after the House Committees began the Ukraine had made progress on defense re- such investigations, declaring that ‘‘the Impeachment Inquiry. Mr. Giuliani, at the form and anti-corruption measures. Congress President has not asked the Attorney Gen- direction of the President, has continued to required this certification under the Na- eral to contact Ukraine—on this [the July 208 travel to Ukraine to generate compromising tional Defense Authorization Act in order to 25th call] or any other matter.’’ Addition- material on President Trump’s political op- allow USAI funding to be provided beyond ally, Mr. Yermak asked Ambassador Volker ponents,190 raising the possibility of future the first 50 percent of amounts authorized to make any official request for investiga- 209 attempts by President Trump to pressure and appropriated for Ukraine military aid.198 tions through formal channels, but there foreign leaders to interfere in the 2020 elec- Furthermore, support for providing security is no evidence that the DOJ or officials at tion. assistance to Ukraine was unanimous among the US Embassy Kyiv followed up on that 210 Consistent with the first element delin- relevant agencies of the United States gov- suggestion. That the President did not go eated for abuse of power, the evidence clear- ernment. Deputy Assistant Secretary of De- through regular inter-governmental chan- ly shows that President Trump misused his fense Laura Cooper testified that there was a nels supports the conclusion that his inter- office to advance a corrupt scheme. consensus within the interagency that cor- est in Ukrainian investigations was for his The fact that President Trump’s actions ruption was not a legitimate reason for the personal political benefit and not legitimate involve the misuse of the office of the presi- hold.199 Ambassador Taylor affirmed Ms. policy considerations. dency distinguishes the current proceedings Cooper’s recollection that no agencies raised In addition, there is no evidence to support from the circumstances in the 1999 Clinton policy-related concerns as reason for the the claim that President Trump withheld Impeachment trial. Based on the historical hold on security assistance testifying, ‘‘At Ukrainian military assistance out of con- record, the constitutional standard I applied every meeting, the unanimous conclusion cerns about European burden sharing. While in the Clinton proceedings was that ‘‘private was that the security assistance should be President Trump may be skeptical about Eu- wrongdoing, without a significant adverse ef- reassumed, the hold lifted. At one point the ropean contributions to mutual defense, Eu- fect upon the nation, cannot constitute an Defense Department was asked to perform an ropean nations contribute significantly more impeachable offense.’’ 191 On that basis, I con- analysis of the effectiveness of the assist- foreign aid overall to Ukraine than the cluded that ‘‘Citizens may well lack con- ance. Within a day, the Defense Department United States. The EU is the single largest fidence in the ability of President Clinton to came back with the determination that the contributor of foreign assistance to Ukraine, be honest about his personal life, this is not assistance was effective and should be re- having provided Ö15 billion since 2014 versus 200 however a threat to our government.’’ 192 The sumed.’’ $1.96 billion in security assistance that the circumstances regarding President Trump Nor does the evidence support the claim United States has provided over that same 211 can be distinguished both on the grounds that President Trump, himself, had concerns time period. The rationale that the President withheld that his actions involved the misuse of his about institutional corruption that would security assistance because he was concerned public office, not private wrongdoing, and lead him to withhold military assistance for with Europe paying more to support Ukraine because the nature of President Trump’s Ukraine. There is no evidence that President Trump in his interactions with his Ukrain- was not raised until well after the hold was abuse of power is an ongoing threat to our ian counterpart, raised concerns about cor- placed on U.S. security assistance for systems of government and our constitu- ruption. Indeed, corruption was not raised by Ukraine. Witness testimony indicates that tional order. President Trump during the two calls he had the President began making inquiries about D. The President’s Solicitation of Investiga- with President Zelensky,201 despite that the aid on June 19, 2019,212 and that all secu- tions by Ukraine into the 2016 Campaign issue being included in his talking points rity assistance for Ukraine had been put on and Biden/Burisma Theories Was for his prepared by NSC staff for both calls.202 Fur- hold by July 12, 2019.213 OMB official Mark Personal or Other Corrupt Purpose ther evidence that President Trump was not Sandy testified that when the hold was or- The second element of the offense of abuse interested in institutional corruption in dered no explicit reason was provided.214 Mr. of power, as previously delineated, is the use Ukraine came from Mr. Morrison, who lis- Sandy further testified that it wasn’t until of official governmental power for personal tened to the July 25th call, and testified that September, after the hold became public, or some other corrupt purpose. The Presi- President Trump did not make a ‘‘full- that a concern was expressed about Euro- dent’s Counsel have argued that the Presi- throated endorsement of the Ukraine reform pean burden sharing.215 dent had legitimate policy reasons for with- agenda that I was hoping to hear.’’ 203 Nor is there evidence that the Trump Ad- holding the Ukraine security assistance or Further, communications by U.S. dip- ministration made any efforts publicly or the White House meeting. Specifically, the lomats to President Zelensky or other privately to get additional contributions

VerDate Sep 11 2014 04:33 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00031 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.121 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE S1192 CONGRESSIONAL RECORD — SENATE February 27, 2020 from Europe while the aid was on hold. Mr. Second, President Trump’s corrupt scheme President Zelensky’s close aide Yermak, of Sandy testified that he was not aware of any threatened U.S. national security objectives the ‘‘high strategic value of a bipartisan sup- other countries committing to provide more by advancing a Russian disinformation nar- port for Ukraine and the importance of not financial assistance to Ukraine prior to the rative that it was Ukraine, and not Russia, getting involved in other country’s elec- lifting of the hold on September 11th.216 that interfered in the 2016 presidential cam- tions.’’ 230 Ambassador Volker also empha- Moreover, as the GAO decision makes paign. The Intelligence Community unani- sized the importance of the bipartisan sup- clear, the President does not have the au- mously assessed that ‘‘Russian President port in Congress for U.S. policy toward thority to withhold funding that Congress Vladimir Putin ordered an influence cam- Ukraine.231 has appropriated for a specific purpose. The paign in 2016 aimed at the U.S. presidential Finally, the President’s efforts to secure GAO determined ‘‘the law does not permit election.’’ 221 That assessment of the Intel- investigations into the 2016 campaign and the President to substitute his own policy ligence Community was affirmed by the bi- Biden/Burisma theories undermined U.S. pol- priorities for those that Congress has en- partisan Senate Select Committee on Intel- icy promoting the rule of law and fighting acted into law. OMB withheld funds for a ligence,222 and the Special Counsel’s inves- corruption, which included discouraging policy reason, which is not permitted under tigation.223 partner governments from launching politi- the Impoundment Control Act (ICA). The The perpetuation and promotion of a Rus- cally-motivated investigations into domestic withholding was not a programmatic delay. sian disinformation operation undermines rivals. Deputy Assistant Secretary George Therefore, we conclude that OMB violated U.S. efforts to protect our electoral institu- Kent, former Deputy Chief of Mission in the ICA.’’ 217 tions from Russian interference and to build Ukraine, testified to the official U.S. policies The OMB continued to implement the the resilience of the American people against in place in countries like Ukraine and Geor- President’s hold on the Ukraine security as- foreign interference. Former NSC official Dr. gia, stating that ‘‘having the President of sistance despite repeated warnings starting Fiona Hill underscored the importance of the United States effectively ask for a polit- in early August from Department of Defense countering this Russian information warfare ical investigation of his opponent would run (DOD) officials that further delays risked campaign when she testified before the directly contrary’’ to these efforts.232 As 218 violating the ICA. The OMB-directed hold House Intelligence Committee on November Chairman Schiff restated on December 18, on the apportionment of funds continued 21, 2019. She assessed: 2019: even after DOD warned that it could no The impacts of the successful 2016 Russian On September 14 in Ukraine, when Ambas- longer guarantee that the Department would campaign remains evident today. Our nation sador Volker sat down with Andriy Yermak, be able to obligate the funds before the end is being torn apart. Truth is questioned. Our the top adviser to Zelensky, and he did what of the fiscal year, a clear violation of the highly professional expert career Foreign he should do. He supported the rule of law, 219 ICA. Ultimately, DOD failed to execute $35 Service is being undermined. U.S. support for and he said: You, Andriy Yermak, should not million of the $250 million obligated for Ukraine which continues to face armed Rus- investigate the last President, President 220 USAI before the end of the fiscal year. sian aggression is being politicized. The Rus- Poroshenko, for political reasons. You The President’s Counsel have failed to sian Government’s goal is to weaken our should not engage in political investigations. produce credible evidence to support the con- country, to diminish America’s global role, And do you know what Yermak said: ‘‘Oh, tention that the President withheld security and to neutralize a perceived U.S. threat to you mean like what you want us to do with assistance and an Oval Office meeting from Russian interests. President Putin and the the Bidens and the Clintons? 233 Ukraine for legitimate policy reasons. In- Russian security services aim to counter Based on the above analysis, I find that stead, an adverse inference can be drawn U.S. foreign policy objectives in Europe in- there is overwhelmingly clear and con- that the President had no legitimate policy cluding in Ukraine, where Moscow wishes to vincing evidence that elements of abuse of basis for his actions. Further, the House Im- reassert political and economic domi- power have been met and that President peachment Managers have established that nance.224 Trump is guilty on the first Article of Im- the President acted for his own personal ben- Third, the President’s withholding of near- peachment. efit, specifically to advance the ongoing cor- ly $400 million in U.S. security assistance to VI. ARTICLE II: OBSTRUCTION OF CONGRESS rupt scheme to solicit foreign interference in Ukraine undermined U.S. national security Article II of House Resolution 755 provides the 2020 presidential election. objectives in the strategic competition with that, in the conduct of his office, the Presi- E. The President’s Solicitation of Investigations Russia, a central pillar of the Administra- dent directed the unprecedented and categor- into the 2016 Campaign and Biden/Burisma tion’s own National Defense Strategy. NSC ical indiscriminate defiance of subpoenas Theories was Without Due Consideration of official Tim Morrison stressed that ‘‘Ukraine issued pursuant to the House’s ‘‘sole Power U.S. National Interests is on the front lines of a strategic competi- of Impeachment.’’ 234 Article I provides fur- The final element of the offense of abuse of tion between the West and Vladimir Putin’s ther provides that President Trump’s order- power, as previously delineated, is that the revanchist Russia.’’ 225 He added, ‘‘The ing the White House and other Executive use of official power, for personal or some United States aids Ukraine and her people so Branch agencies and Executive Branch offi- other corrupt purpose, is made without due they can fight Russia over there, and we cials to defy House subpoenas sought ‘‘to consideration for the national interest. The don’t have to fight Russia here.’’ 226 Ambas- evidence presented at the Senate trial makes sador Taylor also testified on the importance seize and control the power of impeachment clear that in using the powers of his office to of supporting Ukraine for U.S. national secu- . . . a vital constitutional safeguard vested 235 I withhold valuable U.S. security assistance rity interests. He stressed, ‘‘One of our na- solely in the House of Representatives.’’ will first explain how historical and case and an Oval Office visit for the newly-elected tional security goals is to resolve conflicts in precedent proves that obstruction of Con- Ukrainian President to advance a corrupt Europe’’ and our aid to Ukraine is ‘‘in sup- gress is an impeachable offense. Next, I will scheme to solicit foreign interference for his port of a broader strategic approach to Eu- explain how, through his indiscriminate personal benefit, President Trump harmed rope . . .,’’ and is ‘‘to support Ukraine when order, President Trump sought to vitiate and the national interest of the United States. it negotiates with the Russians.’’ 227 President Trump’s efforts to leverage two of- Ambassador Taylor and other witnesses in fact, did undermine, the lawful authority ficial acts to advance a scheme to solicit for- were particularly alarmed by the with- of Congress. Finally, I will explain how each eign interference in the 2020 election is con- holding of the security assistance because of of the arguments that the President’s Coun- trary to the national interests of the United its potential impact on Ukraine at a critical sel put forward during the Impeachment States in a number of ways. time in its conflict with Russia. As Ambas- Trial to justify the President’s obstruction First and foremost, President Trump’s sador Taylor testified, ‘‘It’s one thing to try do not amount to a lawful cause or excuse. misuse of the powers of his office threatened to leverage a meeting in the White House. A. Obstruction of Congress Is An Impeachable the heart of the constitutional order itself, It’s another thing, I thought, to leverage se- Offense potentially undermining our democratic curity assistance to a country at war, de- When any one branch of government seeks process. By pressuring Ukraine to engage in pendent on both the security assistance and to obstruct an essential function of another election interference through the promotion the demonstration of support. It was much branch, it threatens a central feature of our of two unfounded theories, President more alarming.’’ 228 Ambassador Taylor fur- republic: the separation of powers.236 In the Trump’s conduct posed an urgent danger to ther underscored the harm from withholding case where a President seeks to derogate the the integrity of our constitutional system. If vital aid for Ukraine: ‘‘Security assistance authority of another branch, it can also un- the history of the 2016 election can be rewrit- was so important for Ukraine as well as our dermine the President’s constitutional obli- ten at the President’s direction to cast doubt national interests, to withhold that assist- gation to ‘‘take Care that the Laws be faith- on Russia’s interference, it invites Russia ance for no good reason other than help with fully executed.’’ 237 and other adversaries to interfere again in a political campaign made no sense. It was President Trump continues to thwart Con- the future knowing that there will be no con- counterproductive to all of what we had been gress’ oversight and investigative powers, sequences. Similarly, it risks distorting the trying to do. It was illogical. It could not be which are essential constitutional functions integrity of our electoral process if the explained. It was crazy.’’ 229 of the Legislative Branch. In McGrain v. President can leverage the power of the pres- President Trump’s actions also threatened Daugherty, the Supreme Court firmly estab- idency to pressure foreign countries to com- to undermine one of Ukraine’s greatest as- lished that such inquiry power is ‘‘an essen- mit their government resources to dig up sets in its conflict with Russia, the bipar- tial and appropriate auxiliary to the legisla- ‘‘dirt’’ on his political opponents in order to tisan nature of support for Ukraine in the tive function’’ and included the ability to benefit his reelection. U.S. Congress. Ambassador Taylor advised seek and enforce demands for information.238

VerDate Sep 11 2014 04:33 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00032 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.122 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE February 27, 2020 CONGRESSIONAL RECORD — SENATE S1193 The need to comply with subpoena-backed reports that President Trump and his associ- Additionally, as a result of the October 8th requests for information, including in an Im- ates might have been seeking assistance directive, multiple Trump Administration peachment, has been explicitly stated. In from the Ukrainian government in his bid officials have defied congressional subpoenas Kilbourn v. Thompson, the Supreme Court for reelection.245 As part of this inquiry, the and refused to testify in the Impeachment held that, ‘‘Where the question of such im- Investigating Committees requested that the proceedings.270 Overwhelming evidence of the peachment is before either [the House or White House provide documents related to President’s abuse of power has come to light, Senate] acting in its appropriate sphere on the President’s July 25th call with the despite the President’s obstructionist ef- that subject [of impeachment], we see no Ukrainian President.246 forts, largely because key Administration of- reason to doubt the right to compel the at- Speaker Nancy Pelosi subsequently an- ficials risked their jobs and careers to com- tendance of witnesses, and their answer to nounced on September 24, 2019 that the ply with subpoenas and requests issued by proper questions, in the same manner and by House would be commencing ‘‘an official Im- the House. Even in those cases, agency lead- the use of the same means that courts of jus- peachment inquiry.’’ 247 The Investigating ership worked to ensure that these officials tice can in like cases.’’ 239 Committees then subpoenaed documents and would only be able to give limited testi- Part of Congress’ broad oversight author- witness testimony from the White House,248 mony. In particular, the Department of ity is the power to hold sitting presidents ac- the Department of State,249 the Department State,271 the Department of Defense,272 and countable for grave misconduct and abuses of Defense,250 the Office of Management and the Department of Energy 273 prevented Exec- of public trust through Impeachment. In- Budget,251 the Department of Energy,252 and utive Branch employees who did participate deed, Article I, Section 2, Clause 5 of the U.S. Rudy Giuliani.253 as witnesses from accessing documents that Constitution gives the House of Representa- Once H.Res. 660 was approved by the House they identified as directly relevant to the tives ‘‘the sole Power of Impeachment.’’ 240 on October 31st, the subpoenas issued as part Impeachment inquiry—including their phone However, an Impeachment inquiry can only of the ongoing investigations leading up to records, emails, notes, and memoranda. As a be discharged through the cooperation of the the adoption of H.Res. 660 remained in full result, these witnesses were denied the op- 254 governmental branch being investigated; force. In addition, the House Intelligence portunity to have documents that could have Committee issued new subpoenas for witness only this branch can provide documents and helped them give more specific testimony, testimony to officials at the National Secu- witness testimony related to its own con- and some had to rely on their own notes and rity Council,255 White House,256 Office of 274 duct. By refusing to provide any informa- recollections. Management and Budget,257 and the Office of tion, President Trump is trying to stop Con- President Trump personally sought, the Vice President.258 gress from gathering relevant information through intimidation or influence, to impede As such, I conclude that there is over- the testimony of officials that cooperated and render the Impeachment process tooth- whelmingly clear and convincing evidence 241 with the House Impeachment inquiry. He less. As John Quincy Adams noted, it that the House used its lawful authority in would make a ‘‘mockery’’ of the Constitu- specifically sought to interfere with the tes- conducting its Impeachment inquiry. timonies of Ambassador Gordon Sondland,275 tion’s Impeachment power for Congress to C. President Trump Used the Powers of the Ambassador William Taylor,276 Ambassador have the power to impeach but ‘‘not the Presidency to Subvert the Powers of Con- Marie Yovanovitch,277 Lt. Col. Alexander power to obtain the evidence and proofs on gress Vindman,278 and Jennifer Williams.279 which their impeachment was based.’’ 242 President Trump used the vast powers of There is indeed overwhelmingly clear and The Judiciary Committee also confirmed convincing evidence that President Trump that subverting the constitutionally vested his office to prevent the House of Represent- atives from exercising its oversight author- used the powers of his office to prevent the powers of the Legislative Branch can be an House from exercising its constitutionally impeachable offense, when it previously ap- ity and sole power of Impeachment. The President did so by ordering the entire Exec- granted authority to conduct oversight re- proved Articles of Impeachment charging lated to the Impeachment inquiry. President Richard Nixon with the failure to utive Branch not to cooperate with the D. President Trump Obstructed the Impeach- comply with duly authorized congressional House Impeachment inquiry. White House ment Inquiry Without Lawful Cause or Ex- subpoenas. The Judiciary Committee ex- Counsel Pat Cipollone sent a letter to Speak- cuse plained that: er Pelosi and the Investigating Committees In refusing to produce these papers and on October 8, 2019, declaring that ‘‘President Whether President Trump obstructed Con- things, Richard M. Nixon, substituting his Trump cannot permit his Administration to gress turns on whether there is evidence that judgment as to what materials were nec- participate in this partisan inquiry under he had legal cause or excuse for his total 259 essary for the inquiry, interposed the powers these circumstances.’’ It is notable that, non-cooperation with the Impeachment in- even before sending the October 8th letter, of the Presidency against the lawful sub- quiry. I will address how each of the argu- President Trump had made his intentions poenas of the House of Representatives, ments that the President’s Counsel have clear to obstruct any and all oversight by thereby assuming to himself functions and made in attempting to justify the Presi- Congress, proclaiming, ‘‘We’re fighting all judgments necessary to the exercise of the dent’s stonewalling do not provide sufficient the subpoenas.’’ 260 President Trump further sole power of impeachment vested by the legal excuse for his conduct. asserted, ‘‘As the President of the United Constitution in the House of Representa- D.1. Validity of Congressional Subpoenas States, I have an absolute right, perhaps tives.243 The President’s Counsel argue that sub- even a duty, to investigate, or have inves- Based on the above historical and case poenas related to the Impeachment pro- tigated, CORRUPTION, and that would in- precedent, I conclude that obstruction of ceeding are invalid, if they were issued be- clude asking, or suggesting, other Countries fore the House voted to approve H.Res. 660 Congress can be an impeachable offense. I 261 help us out!’’ formalizing the Impeachment inquiry on Oc- also conclude that a sitting President com- The President’s sweeping directive on Oc- tober 31, 2019. In the President’s trial brief, mits obstruction of Congress by: tober 8th had the foreseeable effect of ob- Counsel states that ‘‘It was entirely proper 1) Contravening the lawful authority of the structing, and in fact, did materially thwart, for Administration officials to decline to Legislative Branch; the House Impeachment inquiry. Following comply with subpoenas issued pursuant to a 2) By imposing the powers of the presi- President Trump’s categorical order, the De- purported ‘impeachment inquiry’ before the dency; partment of State,262 the Office of Manage- 3) Without lawful cause or excuse. House of Representatives had authorized any ment and Budget,263 the Department of En- such inquiry. No House committee can issue B. The House of Representatives Exercised Its 264 265 ergy, and the Department of Defense subpoenas pursuant to the House’s Impeach- Lawful Authority in the Impeachment In- failed to produce a single document in re- quiry ment power without authorization from the sponse to requests or demands for records in House itself.’’ 280 Relying on the argument As explained in Section V, Subsection A of their possession. To date, the only docu- that subpoenas issued prior to the passage of this Memorandum, Congress has broad power ments the Executive Branch has released are H.Res. 660 were invalid, the White House, De- to conduct oversight and issue demands for summaries of President Trump’s phone calls partment of State, and the Department of 266 information, and is vested with the sole with President Zelensky on April 21, 2019 Defense instructed current and former em- 267 power to conduct Impeachment. and July 25, 2019. Even these documents ployees not to testify before the Inves- In this case, the House of Representatives are not complete. The President claimed the tigating Committees in the Impeachment was using both its lawful investigative and July 25th call is, ‘‘an exact word for word proceedings.281 Impeachment authorities, when it issued transcript of the conversation.’’ 268 However, The President’s Counsel’s argument broad- lawful subpoenas leading up to and after the witness testimony from the House Impeach- ly fails because it goes against well-estab- adoption of House Resolution 660 on October ment inquiry shows that there were key lished case law recognizing Congress’ power 31, 2019, which formalized the ongoing inves- omissions. NSC official Lt. Col. Vindman, to conduct investigations 282 and issues sub- tigations into whether sufficient grounds ex- who listened to the calls, testified that edits poenas,283 even when it is not engaged in an isted for the House of Representatives to im- that he provided to the draft July 25th docu- Impeachment. Furthermore, the standing peach President Donald John Trump.244 ment based on his notes were not included in rules of the House authorize a committee or On September 9, 2019, the House Commit- the transcript that was released. Lt. Col. subcommittee, with certain limitations, to tees on Intelligence, Foreign Affairs, and Vindman’s edits included a reference to issue subpoenas ‘‘[f]or the purpose of car- Oversight and Reform (hereinafter ‘‘Inves- Burisma and President Trump telling Presi- rying out any of its functions and duties.’’ 284 tigating Committees’’) first announced that dent Zelensky that there are recordings of Therefore, the relevant question on the va- they would be starting an investigation into Vice President Biden.269 lidity of the House subpoenas does not turn

VerDate Sep 11 2014 04:33 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00033 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.124 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE S1194 CONGRESSIONAL RECORD — SENATE February 27, 2020 on whether they were issued before or after think of a setting where congressional need Legislative Branch in good faith continued H.Res. 660, as the President’s Counsel argue. for information is greater than during an Im- into the Senate trial, as his Administration Rather, it should center on whether they peachment, which is the Constitution’s most continued to withhold the information that were issued as part of a lawful congressional potent way to hold the President account- was subpoenaed during the House inquiry. investigation.285 In this case, the subpoenas able for his misconduct.294 The President’s Counsel even went so far as at issue involved the legitimate purpose of The President’s Counsel further assert that to instruct the Senate that it could not con- investigating whether President Trump and senior advisors to the President do not have sider the evidence the House did obtain say- his associates sought assistance from the to comply with congressional subpoenas be- ing that ‘‘The Senate may not rely on a cor- Ukrainian government to influence the 2020 cause they have ‘‘absolute immunity.’’ This rupted factual record derived from constitu- election. As a result, there is convincing evi- doctrine of absolute immunity has also been tionally deficient proceedings to support a dence that the House Permanent Select rejected by the D.C. District Court in House conviction of the President of the United Committee on Intelligence, the House For- Judiciary Committee v. Miers 295 and House Ju- States.’’ 304 eign Affairs Committee, and the House Com- diciary Committee v. McGahn.296 In addition, as the Senate Impeachment mittee on Oversight and Reform had valid D.2.b. Accommodation of legislative branch proceedings were underway, new and mate- investigative and subpoena authority, even Moreover, even if President Trump did rial evidence of President Trump’s mis- before the passage of H.Res. 660. have a legitimate need to keep information conduct continued to come out. Lev Parnas, Even if the argument made by the Presi- confidential, each branch of government is the associate of Rudy Giuliani, asserted that dent’s Counsel was legitimate, the Trump required to accommodate the legitimate President Trump was fully aware of efforts Administration failed to abide by its rule. needs of the others to maintain the separa- to dig up ‘‘dirt’’ on his political rival, as Following the President’s Counsel’s own tion of powers. If President Trump had a were Vice President Mike Pence, Attorney logic, the President would have to recognize valid need to keep confidential some of the General William Barr, and former Energy the validity of and comply with subpoenas information that the House requested, the Secretary Rick Perry.305 According to news issued after the Impeachment inquiry was agencies and offices involved could have en- reports, it also has come to light that Presi- formalized on October 31, 2019. Yet, the tered into good-faith negotiations with the dent Trump directed John Bolton, his then- President did not permit officials from OMB House to resolve their conflicting needs. The national security adviser, to help with his and the National Security Council to testify Courts have suggested that the Framers in- pressure campaign against the Ukrainian even though they were subpoenaed after tended dynamic compromise as the most ef- government.306 Both Bolton and Parnas made H.Res. 660 passed the House.286 fective way to solve disputes between the it clear during the Impeachment trial that D.2. Assertions of Privilege branches and that view has been affirmed by they were willing to testify before the Sen- To the extent that the President has legiti- the longstanding historical practice of the ate.307 Yet, President Trump sought to dis- mate executive privilege claims, he failed to branches.297 In United States v. AT&T, the credit both witnesses 308 and even threatened properly assert them or to go through the D.C. Circuit Court held that ‘‘Under this to assert executive privilege to prevent John proper accommodation process to keep infor- view, the coordinate branches do not exist in Bolton from coming to testify and cooper- mation confidential. an exclusively adversary relationship to one ating in the Impeachment trial.309 D.2.a. Presidential privilege is not absolute another when a conflict in authority arises. D.3. Purported Defectiveness of Impeachment The President’s Counsel have stood by the Rather, each branch should take cognizance Inquiry October 8th letter from Mr. Cipollone to of an implicit constitutional mandate to The President’s Counsel argue that the Speaker Pelosi declaring that the President seek optimal accommodation through a real- subpoenas issued by the House are invalid and his Administration would not partici- istic evaluation of the needs of the con- not only because of when they were issued. pate in the Impeachment inquiry.287 Presi- flicting branches in the particular fact situa- They argue that the Impeachment inquiry 298 dent Trump himself has articulated his ex- tion.’’ itself is defective and unauthorized and It is this accommodation process that is pansive view of his powers saying, ‘‘Hon- therefore any compliance is unnecessary. the norm, not a wholesale refusal by one estly, we have all the material . . . They The President’s Counsel argue that ‘‘the branch to another. ‘‘Cooperation dominates don’t have the material.’’ 288 House has never undertaken the solemn re- However, in United States v. Nixon, the Su- most congressional requests for information, sponsibility of a presidential impeachment preme Court flatly rejected this kind of un- with the executive turning over the re- inquiry without first authorizing a par- limited assertion of executive power. The quested information as a matter of rou- ticular committee to begin the inquiry’’ and 299 Court held that ‘‘neither the doctrine of sep- tine.’’ A complete breakdown in these pro- ‘‘[t]hat has also been the House’s nearly un- aration of powers, nor the need for confiden- cedures is a rarity as ‘‘information access broken practice for every judicial impeach- tiality of high-level communications, with- disputes are typically worked out through ment for two hundred years.’’ 310 out more, can sustain an absolute, unquali- one of several intermediate options’’ such as As explained in Section V, Subsection D.1 fied Presidential privilege of immunity from the Executive Branch agency providing re- of this Memorandum, Congress’ power to judicial process under all circumstances.’’ 289 dacted documents or requiring Congress to conduct investigations and issue subpoenas, Instead, the Court found that, in an inter- keep the requested information confiden- even when not as part of an Impeachment, 300 branch dispute, when a claim of presidential tial. A memorandum written by the Office has been repeatedly and firmly settled by the privilege is based merely on the grounds of a of Legal Counsel (OLC) during the adminis- Courts. Therefore, even if one accepts that generalized interest in confidentiality, ‘‘the tration of President George H. W. Bush ex- the Impeachment investigation was invalid generalized assertion of privilege must yield plains that ‘‘[I]f further negotiation is unless authorized by the House, it does noth- to the demonstrated, specific need for evi- unavailing, it is necessary to consider asking ing to diminish the power of the committees dence.’’ 290 the President to assert executive privi- at hand to engage in an oversight investiga- A related D.C. Circuit Court case, Senate lege.’’ 301 Traditionally, Executive Branch tion. Nor does it diminish the duty to com- Select Committee on Presidential Campaign Ac- agency branch officials then present their ply with subpoenas that were issued under tivities v. Nixon, affirmed that presidential case for the assertion of executive privilege this oversight authority. privilege is not absolute and could be over- to the President and the agency asks Con- The President’s Counsel is contradicted by come by a ‘‘strong showing of need by an- gress to hold its request in abeyance, pend- the cases of President Johnson and Nixon, 302 other institution of government.’’ 291 The ing the President’s decision. where a committee of jurisdiction started Court in this case articulated the following The President’s Counsel claim that the Ex- taking steps toward Impeachment before the test in making its decision: Congress in ecutive Branch was willing to enter into an full House took any action. In the Johnson 303 using its investigative powers may override accommodation process with the House. Impeachment, the Judiciary Committee con- presidential privilege when it makes the req- However, whereas the presumption in an sidered Articles of Impeachment before re- uisite showing of need that ‘‘the subpoenaed inter-branch dispute is cooperation, the porting them out for a vote by the House.311 evidence is demonstrably critical to the re- White House’s default position has been total In the case of President Nixon, the Judiciary sponsible fulfillment of the Committee’s refusal of the House’s requests for informa- Committee employed a Special Counsel to function,’’ such as a legitimate oversight or tion. To this day, the Trump Administration assist in the inquiry, before the House ex- legislative purpose.292 has not turned over a single responsive docu- plicitly authorized the Committee’s inves- In this case, Mr. Cipollone’s October 8th ment or worked to make a single witness tigation to determine whether the House letter makes clear the President intended to available for questioning by Congress. The should impeach.312 exercise privileges over the whole of the Ex- Administration has not sought an inter- What’s more, the President’s Counsel’s po- ecutive Branch, regardless of whether an mediate option to make information avail- sition appears to be that the House must au- agency was involved in foreign policy or na- able to Congress. Nor has the Executive thorize an Impeachment before it has gath- tional security policy.293 In contrast, the In- Branch ever formally invoked executive ered enough evidence to warrant one, and vestigating Committees overwhelmingly privilege or asked Congress to hold its re- also that a congressional investigation demonstrated a particularized interest in ob- quests in abeyance pending the President’s which begins to produce evidence of grounds taining information to ascertain whether the decision to assert executive privilege. for Impeachment loses its investigative au- President used the powers of his office to so- D.2.c. Obstruction in Senate trial thority until the House votes to formalize licit foreign interference on his behalf in the President Trump’s obstruction of Congress the Impeachment inquiry. These arguments 2020 election. In addition, it would be hard to and his failure to resolve disputes with the defy both logic and past precedent.

VerDate Sep 11 2014 04:33 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00034 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.125 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE February 27, 2020 CONGRESSIONAL RECORD — SENATE S1195 Here, I am also persuaded by the House Im- entertain the Judiciary Committee’s sub- rooted in basic constitutional principles of peachment Managers’ argument that the poena-enforcement action, yet taking no po- fundamental fairness. Determining due proc- Constitution grants the ‘‘sole Power of Im- sition on the jurisdictional basis for the ess of the law ‘‘require[s] . . . that state ac- peachment’’ to the House of Representatives. President’s maintenance of lawsuits to pre- tion, whether through one agency or an- In addition, the Constitution says that, vent Congress from accessing his personal other, shall be consistent with the funda- ‘‘[t]he Senate shall have the sole Power to records by legislative subpoena, DOJ implic- mental principles of liberty and justice try all Impeachments.’’ 313 Nowhere does the itly suggests that (much like absolute testi- which lie at the base of all our civil and po- Constitution empower the President to uni- monial immunity) the subject-matter juris- litical institutions and not infrequently are laterally decide that an Impeachment is ille- diction of the federal courts is properly in- designated as ‘law of the land.’ ’’ 321 gitimate. I conclude that investigations voked only at the pleasure of the Presi- In evaluating whether President Trump leading up to H.Res. 660 and the formal in- dent.315 was afforded protections that are consistent quiry that continued afterward were duly au- The Judge in the McGahn case also noted with the ‘‘fundamental principles of liberty thorized. that the DOJ made conflicting arguments in and justice,’’ the analysis should center on D.4. Further Litigation the House’s lawsuit seeking grand jury evi- whether he was given rights customarily dence that contributed to former Special given to presidents in previous Impeach- The President’s Counsel argue that its cat- Counsel Robert Mueller’s report. The Judge ments. egorical and comprehensive defiance cannot goes on to write: During the Clinton Impeachment inquiry, be deemed to be obstruction of Congress be- During oral argument, when one of the the President’s Counsel was invited to at- cause the House has not sought judicial re- panelists asked DOJ about the district tend all Judiciary Committee executive ses- view of the subpoenas issued as part of the court’s subject-matter jurisdiction to enter- sions and open hearings, was allowed to Impeachment inquiry. tain the House’s legal action, DOJ Counsel cross-examine witnesses, object to pieces of This argument is unconvincing given that remarked that, while the Executive branch evidence, suggest that the Committee review the involvement of the Courts in information was ‘‘not advancing that argument[,]’’ it be- additional evidence, and respond to evidence access disputes between the Legislative and lieved that DOJ ‘‘certainly has both standing used by the Committee.322 During the Nixon Executive Branches has been rare, at least and jurisdiction’’ to seek review of the dis- Impeachment inquiry, the President’s Coun- with respect to conflicts over House sub- trict court’s injunction . . . But if DOJ’s po- sel was not invited to participate in the Ju- poenas. As the Congressional Research Serv- sition is that the federal courts have the au- diciary Committee’s proceedings until ice explains: months after the inquiry’s authorizing reso- The traditional preference for political thority to entertain a legal claim concerning lution was passed.323 Once invited, Nixon’s rather than judicial solutions seems sup- the House’s contested request for allegedly counsel was allowed to attend the initial ported by the fact that neither Congress nor privileged grand jury materials, how can it presentation of evidence and respond to it in the President appears to have turned to the be heard to argue, nearly simultaneously, later proceedings, attend later hearings with courts to resolve an investigative dispute that the instant Court has no jurisdiction to witnesses, submit requests to call witnesses, until the 1970s . . . The courts themselves entertain a legal claim concerning the en- cross-examine witnesses that were called, have also generally sought to avoid adjudi- forceability of a House committee’s sub- and object to pieces of evidence.324 cating investigative disputes between the ex- poena compelling the testimony of senior- 316 The House’s Impeachment inquiry into ecutive and legislative branches, instead en- level presidential aides? Further litigation is also problematic be- President Trump afforded the President couraging settlement of their differences cause, unlike Presidents Nixon and Clinton rights that were consistent with these prece- through a political resolution. Consistent who were in their second terms, President dents from prior presidential Impeachments. with that approach, lower federal courts Trump’s misconduct is immediately pre- The President’s Counsel was given the oppor- have suggested that judicial intervention in ceding and, in anticipation of, the upcoming tunity to participate in the House Judiciary investigative disputes ‘‘should be delayed presidential election. The crux of President Committee’s proceedings during the im- until all possibilities for settlement have Trump’s scheme was to corruptly use the peachment inquiry. This included the right been exhausted.’’ . . . [In addition] some evi- vast powers of his presidency to invite for- to attend every Judiciary Committee hear- dence suggests that both the House and the eign interference into the 2020 election in ing; request additional witnesses during courts have viewed judicial involvement in order to benefit himself politically. Allowing these hearings; present evidence orally or in an impeachment inquiry as inappropriate or President Trump to delay this Impeachment writing; have the President’s Counsel cross- in excess of the judiciary’s power.314 examine witnesses; and raise objections dur- Moreover, the argument of the President’s through litigation would enable him to keep ing Judiciary Committee hearings.325 In a Counsel is ineffective in the context of the relevant documents and witnesses from com- November 29th letter to the President, House dilatory tactics the Trump Administration ing out until after the 2020 election. It could Judiciary Committee Chairman Nadler in- has been using in other pending cases where also embolden him to engage in additional quired which of these privileges the Presi- the House also has subpoenaed documents. In unfettered misconduct aimed at increasing dent’s Counsel wished to exercise.326 In his particular, the Administration has used ar- his chances of getting reelected. December 6th response, Mr. Cipollone chose guments which, if taken together, seem to This threat to the integrity of our elec- not to exercise any of these rights and assert the President cannot be held account- tions is exactly the kind of misconduct that claimed the Impeachment inquiry violated able by either the Judicial or Legislative the Framers were worried about. In George due process rights.327 Branch. These stall tactics were highlighted Mason’s view, a risk of election fraud ‘‘fur- After reviewing this comparison, I con- in a case currently pending in the D.C. Cir- nished a peculiar reason in favor of impeachments[.]’’ 317 Another exchange be- clude President Trump has been afforded as cuit Court, Committee on the Judiciary v. tween two delegates, William Richardson least as much due process protection as McGahn. In this case, the House Judiciary Davie and James Wilson, highlights the im- Presidents Nixon and Clinton, and therefore Committee is trying to enforce a subpoena portance of safeguarding against a corrupt standards of fundamental fairness requisite against former White House Counsel, Don president that would cheat to get reelected. for due process have been met in the current McGahn. The D.C. District Court ruled Davie stated, ‘‘ ‘[i]f he be not impeachable Impeachment proceeding. against the DOJ, which claimed that whilst in office, he will spare no efforts or Based on the above analysis, I find that McGahn had absolute immunity from con- means whatever to get himself reelected.’ there is overwhelmingly clear and con- gressional subpoenas for his testimony. In [Davie] considered this as an essential secu- vincing evidence that President Trump ob- its decision, the Judge compares the DOJ’s rity for the good behaviour of the Execu- structed the House Impeachment inquiry inconsistent arguments in the McGahn case tive.’’ 318 Wilson concurred with Davie ‘‘in without lawful cause or excuse and that with a series of cases regarding congres- the necessity of making the Executive im- President Trump is guilty on the second Ar- sional subpoenas for the President’s tax re- peachable while in office.’’ 319 ticle of Impeachment. turns. The Judge points out that the: DOJ stood silent with respect to the juris- D.5. Due Process VII. LACK OF EVIDENTIARY RECORD dictional question, as President Trump (in The President’s Counsel assert that the A. Senate’s Role in Lack of Witnesses and Docu- his personal capacity) has invoked the au- Impeachment inquiry is defective because of ments thority of the federal courts, on more than a lack of due process protections for Presi- As I have explained, the House of Rep- one occasion, seeking resolution of a dispute dent Trump. Specifically, in Mr. Cipollone’s resentatives, as part of its Impeachment in- over the enforceability of a legislative sub- October 8th letter, he asserts that the Presi- quiry, subpoenaed documents and witnesses poena concerning his tax returns. A lawsuit dent was entitled to due process rights dur- from multiple Executive Branch agencies. To that asserts that a legislative subpoena ing the House’s Impeachment inquiry, which date, the Administration has produced zero should be quashed as unlawful is merely the he was not afforded, including ‘‘the right to responsive documents. In fact, the Adminis- flip side of a lawsuit that argues that a legis- see all evidence, to present evidence, to call tration has engaged in a coordinated and lative subpoena should be enforced. And it is witnesses, to have Counsel present at all systematic effort to deny relevant evidence either DOJ’s position that the federal courts hearings, to cross-examine all witnesses, to and testimony to the House of Representa- have jurisdiction to review such subpoena- make objections . . . and to respond to evi- tives in defiance of lawful Congressional sub- enforcement claims or that they do not. By dence and testimony.’’ 320 poenas.328 arguing vigorously here that the federal Procedural due process—meaning the legal Fortunately, patriotic and law-abiding fed- courts have no subject-matter jurisdiction to procedures to be used in a proceeding—is eral employees and former officials complied

VerDate Sep 11 2014 04:33 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00035 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.127 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE S1196 CONGRESSIONAL RECORD — SENATE February 27, 2020 with lawful subpoenas and appeared at depo- Clinton, ‘‘the independence of the Impeach- len by Russian Military Intelligence units, in sitions or public hearings. As described pre- ment process from the prosecution of crimes order to benefit himself politically in the viously, testimony provided by witnesses is underscores the function of Impeachment as 2016 election.345 In June 2019, President probative of the President’s guilt on both Ar- a means to remove a President from office, Trump publicly announced that he would ticles of Impeachment. not because of criminal behavior, but be- take information on his political rival from Once the Articles of Impeachment were re- cause the President poses a threat to the a foreign government.346 Moreover, he pres- ceived by the Senate, the Senate had the op- Constitutional order.’’ 340 Furthermore, dur- sured Ukraine to announce investigations portunity to utilize its own oversight and ing the Clinton Impeachment proceedings, I into his political opponents to benefit his Impeachment authority pursuant to Article concluded that the President’s improper con- 2020 campaign. Indeed, even after the House I of the Constitution to gather relevant doc- duct must represent a continuing threat to began its Impeachment inquiry and he was uments and testimony. However, in this Im- the American people.341 In the current case, confronted by allegations of soliciting for- peachment trial, unlike previous ones con- I have concluded that allowing President eign interference, President Trump doubled ducted by the Senate, whether of Presidents Trump to remain in office would pose such a down by asking China also to investigate the or other officials, no witnesses were al- continuing threat to our electoral system Bidens.347 In addition, as stated earlier, his lowed.329 and the Constitution. personal attorney, Mr. Giuliani as recently My Republican colleagues voted against A. Subversion of the Constitutional Order and as December 2019, was working to gather holding a fair trial. For example, Leader an Unaccountable President disinformation on political opponents.348 McConnell initially sought to have a set of The President’s Counsel have argued that The President has in no way taken respon- rules governing this Impeachment trial that even if President Trump abused the power of sibility for these actions or shown that he would not have included a provision to auto- his office to withhold U.S. military assist- understands the consequences of his behavior 330 matically adopt the House’s evidence. He ance to an ally, in order to pressure that and its harm to the Constitution. After the also sought to have twenty-four hours of country to conduct investigations for his Impeachment trial in 1999, President Clinton opening arguments over two days to speed up personal and political benefit, doing so apologized to the nation and acted contrite. 331 the trial. My Republican colleagues re- would not be an impeachable offense. Ac- In contrast, President Trump has not, in any lented on these points, allowing the House cording to the President’s Counsel, ‘‘If a way, admitted wrongdoing and clings to the Impeachment Managers and the President’s President does something which he believes fiction that his call with President Zelensky 349 Counsel to each have twenty-four hours of will help him get elected—in the public in- was ‘‘perfect.’’ This lack of remorse, com- 332 argument over three days. The Repub- terest—that cannot be the kind of quid pro bined with his past and present actions, lican-authored resolution ultimately did not quo that results in impeachment.’’ 342 It is on leaves open the possibility that President guarantee witnesses, only providing for a this basis that the President’s Counsel fur- Trump will repeat such offenses in the fu- vote on whether witnesses could be heard at ther argue that, even if the President did in ture. the end of arguments and the question pe- fact condition security assistance for C. Elections Cannot be the Sole Remedy 333 From the get-go, my Republican col- riod. Ukraine on politically-motivated investiga- It has been argued that Impeachment and leagues were reluctant to have evidence and tions, it would not be an impeachable of- removal of the President is not the appro- arguments put in front of the American peo- fense.343 That argument violates the funda- priate remedy when the country is roughly ple for judgment. mental principle of our constitutional sys- ten months away from an election. The My Democratic colleagues offered eleven tem that no one is above the law. President’s Counsel argue that any judgment amendments in an effort to ensure a fair Furthermore, President Trump has shown regarding the President’s actions should be trial.334 The amendments, if adopted, would that he will block any congressional check left to the American people when they go to have permitted Senators and the American on his misuse of office by ignoring subpoenas the polls in November 2020. However, by so- people to see relevant evidence and hear as he pleases, without asserting a lawful liciting foreign interference in the coming from witnesses. These amendments were de- cause. At the same time, Trump Administra- election, President Trump’s actions threaten feated—almost entirely along party lines.335 tion lawyers have been arguing in various the viability of our elections and the very After the question and answer portion of court cases that the Judiciary has no role in foundation of our constitutional order to the Impeachment trial, the Senate voted on enforcing the very subpoenas from Congress serve as a check on the President’s conduct. amendments offered by my Democratic col- that the Administration is resisting. The Founders were acutely aware of the leagues that would have provided for wit- President Trump’s defiance of both Con- dangers of foreign election interference. As nesses and documents.336 These amendments gress and the Courts on subpoenas threatens Alexander Hamilton said in Federalist Paper were again defeated, largely along partisan to nullify the constitutional authority of Number 68, ‘‘[t]he desire [of] foreign powers lines.337 It is crucial to note, that this second both the House and Senate, not merely to to gain an improper ascendant in our Coun- series of votes was taken after reports that check the personal excesses of any given sels’’ was one of ‘‘the most deadly adver- Ambassador Bolton’s draft manuscript con- president, but also to oversee the entire Ex- saries of republican government.’’ 350 The tained evidence relevant and central to the ecutive Branch. It validates and encourages Founders knew this risk was inevitable in an allegations in the Articles of Impeachment. the President’s strategy of large-scale ob- election setting. In a letter to John Adams, Through the end of the trial, the vast major- struction of congressional inquiries. It Thomas Jefferson wrote ‘‘You are apprehen- ity of my Republican colleagues did not want emboldens the President to defy investiga- sive of foreign Interference, Intrigue, Influ- to hear from Ambassador Bolton, other rel- tions into his misconduct and strengthens ence. So am I—But, as often as Elections evant witnesses, or see documents that the President’s determination to resist addi- happen, the danger of foreign Influence re- would likely reveal evidence damaging to tional congressional oversight. curs.’’ 351 the President. The result of permitting the Executive I reject the notion, put forward by the Further, Leader McConnell compared his Branch to wholly disregard Congressional re- President’s Counsel, that a President who approach in this trial to that of the Impeach- quests for information is not only to neuter believes his reelection is in the best interest ment Trial of President Clinton, when Sen- the Impeachment power, but more pro- of the country cannot be impeached for abus- ators voted on whether to hear witnesses at foundly, impact Congress as a fundamental ing his power to tilt the next election in his the end of arguments.338 Leader McConnell’s check on executive mismanagement, abuse, favor. The Impeachment clause cannot be assertion is disingenuous considering that corruption, and overreach embodied in the read to provide a carte blanche for the Presi- the Clinton Impeachment trial occurred power of congressional oversight. dent to engage in illegal acts 352 that directly after a lengthy and comprehensive investiga- B. Ongoing Harm to the Constitutional Order undermine the operation of our free and fair tion led by the then independent Counsel, An additional basis for seeking the re- electoral system. The remedy for a President Kenneth Starr, which included tens of thou- moval of a President from office is that his attempting to corrupt the next election can- sands of pages of evidence and recorded testi- conduct poses continuing harm to the con- not be allowing the President to corrupt that mony. During the Clinton Impeachment stitutional order. President Trump’s solici- election. Even a well-intentioned autocrat is trial, witnesses had also previously testified tation of foreign election interference, based still an autocrat and not a President subject in grand jury proceedings.339 There were no on the perpetuation and amplification of to the Constitution. If accepted as true, surprises as to what witnesses would say. baseless and unfounded theories that harm these views would pave the way for the type President Trump’s Impeachment Trial rep- his political opponents, serves to damage the of autocratic government that the Founders resents a stark departure from what oc- fundamental institutions of our democracy. feared and fought to leave behind. curred during the Clinton Impeachment President Trump’s behavior was not a one- For elections to express the will of the Trial and indeed, sets a damaging and dev- time indiscretion, but rather part of a pat- electorate, they must be free and fair. Elec- astating precedent. tern of behavior to invite foreign influence tions must be legitimate, and the public VIII. CONCLUSION: REMOVAL OF PRESIDENT into our elections which thereby undermines must have confidence in them. Even the per- TRUMP IS THE SOLE APPROPRIATE REMEDY the constitutional order and harms the in- ception that our elections are tainted would Conviction and removal of a President tegrity of our democracy. In 2016, then-can- lead voters to question whether their vote from office is a high standard, and one that didate Trump called on Russia to hack the matters. That is why one of our jobs as law- should only be arrived at when there are no emails of his political rival, Secretary Clin- makers is to ensure the integrity of the elec- other remedies available. As I laid out dur- ton.344 He also promoted hacked emails from toral process. We work to ensure that every ing the 1999 Impeachment trial of President Secretary Clinton’s campaign that were sto- vote cast is fairly and accurately counted.

VerDate Sep 11 2014 04:33 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00036 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.129 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE February 27, 2020 CONGRESSIONAL RECORD — SENATE S1197 We work to ensure that external forces, for- Rod Rosenstein, Deputy Attorney General, tion to ‘‘undermine public faith in the US eign or otherwise, cannot sway or pre-deter- Department of Justice, and Steve Engel, As- democratic process, denigrate Secretary mine the outcome of the election. The sistant Attorney General, Department of Clinton and her electability and potential United States government should not be Justice 12 (June 8, 2018) (on file with the New Presidency.’’ The Intelligence Community playing a role in advancing the goals of for- York Times) (emphasis in original). further assessed that ‘‘Putin and the Russian eign powers that seek to use our institutions 29. 2 The Records of the Federal Conven- Government developed a clear preference for to further their own interests. tion of 1787, supra note 12, at 65–66. President-elect Trump.’’) Acquitting President Trump would under- 30. The Federalist No. 68, at 458–459 (Alex- 60. 1 Robert S. Mueller, III, Report On The mine the integrity of our elections and clear ander Hamilton) (Jacob E. Cooke ed., 1961); 1 Investigation Into Russian Interference In the way for Russia or other countries to re- The Records of the Federal Convention of The 2016 Presidential Election 1–2 (Mar., peat in 2020, and beyond, the kind of election 1787 319 (Max Farrand, ed., 1911); 2 The 2019). (The Special Counsel’s investigation interference that the Intelligence Commu- Records of the Federal Convention of 1787, into Russian interference in the 2016 con- nity unanimously assessed occurred in the supra note 12, at 271–272. cluded that ‘‘. . . the Russian government 2016 election. Through acquittal, the Senate 31. 2 The Records of the Federal Conven- perceived it would benefit from a Trump will give its blessing for President Trump to tion of 1787, supra note 12, at 268. presidency and worked to secure that out- use any means at his disposal to sway the 32. The Federalist No. 22, at 142 (Alexander come, and that the campaign expected it next election in his favor, with no con- Hamilton) (Jacob E. Cooke ed., 1961). would benefit electorally from information sequences. President Trump has already 33. Id. stolen and released through Russian efforts demonstrated unequivocally that he has no 34. Charles L. Black, Jr. & Philip Bobbit, . . .’’) Impeachment: A Handbook, New Edition 17 compunction about violating the law, ob- 61. 2 Robert S. Mueller, III, Report On The (2018). structing congressional oversight, and put- Investigation Into Russian Interference In 35. The Federalist No. 65, supra note 3, at ting our nation and allies at risk. The dif- The 2016 Presidential Election 23 (Mar., 2019). ference now will be that President Trump 441; Laurence Tribe & Joshua Matz, To End will know that the Senate will give him a Presidency: The Power of Impeachment 127 62. 1 Mueller, supra note 60, at 1. cover for his future abuses of office. The on- (2018). 63. Interview of: George Kent Before the H. going threat to the constitutional order 36. The Federalist No. 65, supra note 3, at Perm. Select Comm. On Intelligence, Joint with must be remedied, and therefore removal of 441. the Comm. on Oversight and Reform and the the President is the only logical finding in 37. Id. at 442. Comm. on Foreign Affairs, 116th Cong. 268 and this case. 38. Opinion Memorandum of United States 275 (2019). Senator John F. Reed, Trial of President ENDNOTES 64. Interview of: Kurt Volker Before the H. William Jefferson Clinton 1 (Feb. 14, 1999). Perm. Select Comm. On Intelligence, Joint with 1. H.R. Res. 755, 116th Cong. (2019). 39. 145 Cong. Rec. 6, S260 (daily ed. Jan. 15, 2. U.S. Const. art. I, § 3, cl. 6; 166 Cong. Rec. the Comm. on Oversight and Reform and the 1999) (statement of Mr. Manager McCollum). Comm. on Foreign Affairs, 116th Cong. 37 10, S268 (daily ed. Jan. 16, 2020). 40. Opinion Memorandum of U.S. Senator 3. The Federalist No. 65, at 441 (Alexander (2019). (As part of Biden’s role as the lead on John F. Reed, supra note 38, at 6. Ukraine policy for the Obama Administra- Hamilton) (Jacob E. Cooke ed., 1961) (empha- 41. Id. sis in original). tion, he called for institutional reform in the 42. Black & Bobbitt, supra note 34. justice sector, including the firing of then 4. U.S. Const. art. I, § 3, cl. 6. 43. Id. (Black’s analysis is cited by several 5. U.S. Const. art. II, § 4. Prosecutor General Victor Shokin. The other scholars as persuasive; See e.g., Lau- 6. U.S. Const. art III, § 3, cl. 1. Obama administration had urged his resigna- 7. Staff of H. Comm. on the Judiciary, rence Tribe and Joshua Matz, To End a Pres- tion because he was not actively inves- 116th Cong., Rep. on Constitutional Grounds idency: The Power of Impeachment 137 (2018). tigating serious cases of corruption, and 44. 2 The Records of the Federal Conven- for Presidential Impeachment 14 (Comm. threatened to withhold $1 billion in loan tion of 1787, supra note 12, at 67. Print 2019). guarantees. The call for Shokin to resign 8. 2 Sir William Blackstone, Commentaries 45. The Federalist No. 69, at 463 (Alexander was the unanimous position of the United on the Laws of England 2152 (William Carey Hamilton) (Jacob E. Cooke ed., 1961). States and the West. Multiple witnesses tes- 46. 2 The Records of the Federal Conven- Jones ed., 1976). tified that Vice President Biden was acting 9. Id. at 2153. tion of 1787, supra note 12, at 65. in accordance with bipartisan US policy to- 10. Charles Doyle, Cong. Research Serv., 47. Id. at 67. wards Ukraine. For example, Ambassador 98–882, Impeachment Grounds: A Collection 48. H.R. Rep. No. 93–1305, at 139 (1974). Volker stated: ‘‘When Vice President Biden 49. S. Doc. No. 58–133, at 5 (1905); S. Doc. of Selected Materials 4 (1998). made those representations . . . he was rep- 11. The Federalist No. 65, supra note 3, at No. 69–101, at 1 (1926); S. Doc. No. 72–215, at 2 resenting U.S. policy at the time.’’); Im- 439 (emphasis in original). (1933). These judges were district judges peachment Inquiry: Ambassador Kurt Volker 12. 2 The Records of the Federal Conven- Charles Swayne of Florida, George English of and Timothy Morrison Before the H. Perm. Se- tion of 1787 550 (Max Farrand ed., 1911). Illinois, and Harold Louderback of Cali- lect Comm. on Intelligence, 116th Cong. 20 13. Id. fornia. (2019) (statement of Amb. Volker). (Ambas- 50. James M. Naughton, Nixon Says a Presi- 14. 4 The Debates in the Several State Con- sador Volker testified at his public hearing, dent Can Order Illegal Actions Against Dis- ventions on the Adoption of the Federal Con- ‘‘it’s not credible to me that former Vice sidents, Special to N.Y. Times, May 19, 1977, stitution 113 (Jonathon Elliot ed., 2nd ed. President Biden would have been influenced available at https://www.nytimes.com/1977/05/ 1861). in any way by financial or personal motives 19/archives/nixon-says-a-president-can-order- 15. Michael J. Gerhardt, The Federal Im- in carrying out his duties as Vice Presi- illegal-actions-against-dissidents.html. peachment Process: A Constitutional and dent.’’); Daryna Krasnolutska, Kateryna 51. Black’s Law Dictionary 13 (11th ed. Historical Analysis 21 (3rd ed. The Univer- Choursina and Stephanie Baker, Ukraine 2019). sity of Chicago Press 2019) (1996). Prosecutor Says No Evidence of Wrongdoing by 52. H.R. Rep. No. 93–1305, at 139 (1974). 16. 2 Joseph Story, Commentaries on the Bidens, Bloomberg, May 16, 2019, https:// 53. Id. at 3, 139–40. Constitutions 799 at 269–70 quoting William www.bloomberg.com/news/articles/2019-05-16/ Rawle, A View of the Constitution of the 54. Id. at 4, 139, 140. 55. Id. at 180. ukraine-prosecutor-says-no-evidence-of- United States at 213 (2d ed. 1829). wrongdoing-by-bidens. (Allegations of wrong 17. Staff of H. Comm. on the Judiciary, 56. H.R. Rep. No. 116–346, at 5 (2019). 57. Impeachment Inquiry: Fiona Hill and doing by Hunter Biden have also been found 93rd Cong., Rep. on Constitutional Grounds to be without merit including by then Pros- for Presidential Impeachment 27 (Comm. David Holmes Before the H. Perm. Select Comm. on Intelligence, 116th Cong. 40 (2019) (state- ecutor General Lutsenko who stated in mid- Print 1974). May 2019, that he had found no evidence of 18. 2 The Records of the Federal Conven- ment of Dr. Fiona Hill). (On November 21, 2019, NSC senior adviser Fiona Hill described wrongdoing by Hunter Biden, recanting his tion of 1787, supra note 12, at 64–65. previous allegations.) 19. Id. at 550 the theory of Ukrainian interference in the 65. See e.g. Arlette Saenz, Joe Biden An- 20. Id. 2016 election as ‘‘a fictional narrative that is 21. Id. being perpetrated and propagated by the nounces He is Running for President in 2020, 22. Id. Russian security services themselves.’’) CNN, Apr. 25, 2019, https://www.cnn.com/2019/ 23. Id. at 551. 58. Scott Shane, How a Fringe Theory About 04/25/politics/joe-biden-2020-president/ 24. Id. at 600. Ukraine Took Root in the White House, N.Y. index.html. (Vice President Biden declared 25. Trial Memorandum of President Donald Times, Oct. 3, 2019, https://www.nytimes.com/ his candidacy for president on April 25, 2019, J. Trump, In Proceedings Before the United 2019/10/03/us/politics/trump-ukraine-con- following months of speculation about States Senate 1 (Jan. 20, 2020). spiracy.html. whether he would run and being cast by the 26. U.S. Const. art. I, § 3, cl. 7. 59. Office of the Director of National Intel- press as a formidable rival to President 27. 1 The Collected Works of James Wilson ligence, National Intelligence Council, As- Trump.) 736 (Kermit L. Hall and Mark David Hall sessing Russian Activities in Recent US 66. Trial Memorandum of the United States eds., 2007). Elections ii (2017). (The Intelligence Commu- House of Representatives, In the Impeach- 28. Memorandum from William Barr, At- nity unanimously concluded on January 6, ment Trial of President Donald J. Trump 3 torney General, Department of Justice, to 2017, that Russia interfered in the 2016 elec- (Jan. 18, 2020).

VerDate Sep 11 2014 06:04 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00037 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.130 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE S1198 CONGRESSIONAL RECORD — SENATE February 27, 2020 67. Kenneth P. Vogel, Rudy Giuliani Plans Biden called for Mr. Shokin to be fired and pro-Trump legal team Victoria Toensing and Ukraine Trip to Push for Inquires that Could told Ukrainian authorities that the United Joe DiGenova, who have been working in co- Help Trump, N.Y. Times, May 9, 2019, https:// States would withhold $1 billion in loan ordination with Giuliani to further the cor- www.nytimes.com/2019/05/09/us/politics/ guarantees if he was not relieved of his posi- rupt scheme. As part of his legal representa- giuliani-ukraine-trump.html. (According to tion. The U.S. position that Mr. Shokin tion, Mr. Firtash retained Giuliani associate Mr. Giuliani, the President was fully witting should be removed and replaced with a pros- Lev Parnas to be his translator. Further- of the Mr. Giuliani’s activities to further the ecutor general that was dedicated to institu- more, court filings indicate that Mr. Firtash scheme. Mr. Giuliani told the New York Times tional reforms was coordinated with Euro- wired Mr. Parnas’s wife a million dollars that the President, ‘‘basically knows what pean allies and partners and held popular through an intermediary. It must be further I’m doing, sure, as his lawyer,’’ and, ‘‘[m]y support inside Ukraine. On March 29, 2016, noted that Mr. Giuliani referenced that Ms. only client is the president of the United the Ukrainian Rada (parliament) voted over- Toensing would accompany him to the meet- States. He’s the one I have an obligation to whelmingly in approval of President ing he requested with then President- elect report to, tell him what happened.’’) Poroshenko’s decision to fire Mr. Shokin); Zelensky in mid-May. While the letter did 68. See generally Karen Freifeld & Aram Interview of: George Kent, supra note 63, at 45. not state the purpose of the requested meet- Roston, Exclusive: Trump Lawyer Giuliani was (Regarding Mr. Shokin, Deputy Assistant ing, Mr. Giuliani stated publicly that he in- Paid $500,000 to Consult on Indicted Associate’s Secretary Kent, a leading authority on rule tended to tell President Zelensky to pursue Firm, Reuters, Oct. 14, 2019, https:// of law and anti-corruption efforts, assessed the investigation.); See also Letter from Ru- www.reuters.com/article/us-usa-trump-whis- in his deposition, ‘‘There was a broad-based dolph Giuliani to Volodymyr Zelensky, tleblower-giuliani-excl/exclusive-trump-law- consensus that he [Shokin] was a typical President-Elect, Ukraine (May 10, 2019) (on yer-giuliani-was-paid-500000-to-consult-on-in- Ukraine prosecutor who lived a lifestyle far file with H. Perm. Select Comm. On Intel- dicted-associates-firm-idUSKBN1WU07Z; in excess of his government salary, who ligence); Christian Berthelsen, Giuliani Ally Rosalind S. Helderman, Josh Dawsey, Paul never prosecuted anybody known for having Got $1 Million from Ukrainian Oligarch’s Law- Sonne and Tom Hamburger, How Two Soviet- committed a crime, and having covered up yer, Bloomberg, Dec. 17, 2019, https:// Born Emigres Made it into Elite Trump Circles— crimes that were known to have been com- www.bloomberg.com/news/articles/2019-12-17/ and the Center of the Impeachment Storm, mitted.’’) firtash-lawyer-was-source-of-1-million-to- Washington Post, Oct. 12, 2019, https:// 71. Interview of: George Kent, supra note 63, parnas-giuliani-ally. www.washingtonpost.com/politics/how-two- at 47. (The Skype call between Mr. Shokin 76. Andy Heil & Christopher Miller, U.S. Re- soviet-born-emigres-made-it-into-elite- and Mr. Giuliani occurred after Mr. Shokin jects Ukraine Top Prosecutor’s ‘Don’t Prosecute’ trump-circles-and-the-center-of-the-im- was denied a visa to travel to the United Accusation, Radio Free Europe, Mar. 21, 2019, peachment-storm/2019/10/12/9a3c03be-ec53- States, based on his record of corrupt deal- https://www.rferl.org/a/us-rejects-top-ukrain- 11e9-85c0-85a098e47b37_story.html; Kenneth P. ings. Deputy Assistant Secretary George ian-prosecutors-dont-prosecute-accusation/ Vogel, Ben Protess and Sarah Maslin Nir, Be- Kent testified that the State Department ob- 29834853.html. (On March 21, a State Depart- hind the Deal that put Giuliani Together with a jected to the visa because Mr. Shokin was ment spokesperson responded: ‘‘The allega- Dirt-Hunting Partner, N.Y. Times, Nov. 6, ‘‘very well and very unfavorably known to tions by the Ukrainian prosecutor-general 2019, https://www.nytimes.com/2019/11/06/us/ us. And we felt, under no circumstances, are not true and intended to tarnish the rep- politics/ukraine-giuliani-charles- should a visa be issued to someone who utation of Ambassador Yovanovitch.’’) gucciardo.html; United States of America v. knowingly subverted and wasted U.S. tax- 77. Staff of H. Perm. Select Comm. on In- Lev Parnas, Igor Fruman, David Correia, payer money.’’ Mr. Kent further testified telligence, 116th Cong., Rep. on The Trump- And Andrey Kukushkin, Defendants. No. 19 that White House aide Robert Blair called to Ukraine Impeachment Inquiry 44 (Comm. CRIM 725 (S.D.N.Y filed October 9, 2019). (In follow up on why Shokin was denied a visa.); Print 2019). (The House Committees who led the spring of 2018, Soviet born businessmen Deposition of: Marie ‘‘Masha’’ Yovanovitch, Be- the impeachment investigation, ‘‘uncovered Lev Parnas and Igor Fruman had multiple fore the H. Perm. Select Comm. On Intelligence, evidence of close ties and frequent contacts contacts with President Trump and his asso- Joint with the Comm. on Oversight and Reform between Mr. Solomon and Mr. Parnas, who ciates. Mr. Parnas and Mr. Fruman donated and the Comm. on Foreign Affairs, 116th Cong. was assisting Mr. Giuliani in connection $325,000 to the pro-Trump Super Pac America 264–265 (2019). (Ambassador Yovanovitch stat- with his representation of the President.’’); First Action through an LLC. Through those ed at her closed-door interview, ‘‘The em- Adam Entous, The Ukrainian Prosecutor Be- contacts, they forged a relationship with bassy had received a visa application for a hind Trump’s Impeachment, The New Yorker, Trump personal attorney Rudy Giuliani. In tourist visa from Mr. Shokin, the previous Dec. 16, 2019, https://www.newyorker.com/ August, 2018, Mr. Parnas and Mr. Fruman prosecutor general. And he said that he was magazine/2019/12/23/the-ukrainian-prosecutor- hired Giuliani for $500,000 to provide legal ad- coming to visit his children, who live in the behind-trumps-impeachment. (In December vice for their company ‘‘Fraud Guarantee.’’ United States . . . The consular folks . . . 2019, Giuliani affirmed coordination with Hill columnist John Solomon: ‘‘I said, ‘John [Sol- Press reports indicate that Fraud Guarantee got the application, recognized the name, omon], let’s make this as prominent as pos- appears to have no customers. On October 10, and believed he was ineligible for a visa, sible . . . I’ll go on TV. You go on TV. You 2019 a federal indictment from the Southern based on his . . . corrupt activities . . . so I do columns.’ ’’) District of New York charged Mr. Parnas and alerted Washington to this, that this had 78. See John Solomon, As Russia Collusion Mr. Fruman with funneling illegal campaign happened. And the next thing we knew, Fades, Ukrainian Plot to Help Clinton Emerges, contributions from foreign donors to U.S. Mayor Giuliani was calling the White House The Hill, Mar. 20, 2019, https://thehill.com/ government officials and political action as well as the Assistant Secretary of Con- opinion/campaign/435029-as-russia-collusion- committees.) sular Affairs, saying that I was blocking the fades-ukrainian-plot-to-help-clinton- 69. See Kim Hjelmgaard, Ukraine Opens visa for Mr. Shokin, and that Mr. Shokin emerges; John Solomon, US Embassy Pressed Case Against Former Prosecutor Yuriy was coming to meet him to provide informa- Ukraine to Drop Probe of George Soros Group Lutsenko, USA Today, Oct. 1, 2019, https:// tion about corruption at the embassy, in- During the 2016 election, The Hill, Mar. 26, www.usatoday.com/story/news/world/2019/10/ cluding my corruption.’’) 2019, https://thehill.com/opinion/campaign/ 01/ukraine-opens-case-against-ex-prosecutor- 72. Notes from Interview with Mr. Shokin, 435906-us-embassy-pressed-ukraine-to-drop- yuriy-lutsenko/3828779002/. (Mr. Lutsenko Rudolph Giuliani (Jan. 23, 2019) (on file with probe-of-george-soros-group-during-2016; was fired in late August 2019 by newly-elect- the State Department). John Solomon, Joe Biden’’s 2020 Ukrainian ed President Zelensky. In October 2019, 73. Id. Nightmare: A Closed Probe is Revived, The Hill, Ukraine’s State Bureau of investigations 74. Id. Apr. 1, 2019, https://thehill.com/opinion/ (SBI) opened criminal proceedings against 75. See Stephanie Baker & Irina Reznik, To white-house/436816-joe-bidens-2020-ukrainian- Mr. Lutsenko over possible abuse of power Win Giuliani’s Help, Oligarch’s Allies Pursued nightmare-a-closed-probe-is-revived; John charges, stemming from illegal gambling op- Biden Dirt, Bloomberg, Oct. 18, 2019, https:// Solomon, Ukrainian to U.S. Prosecutors: Why erations.) www.bloomberg.com/news/articles/2019-10-18/ Don’t You Want Our Evidence on Democrats?, 70. See Christopher Miller, Why was to-win-giuliani-s-help-oligarch-s-allies-pur- The Hill, Apr. 7, 2019, https://thehill.com/ Ukraine’’s Top Prosecutor Fired? The Issue at sued-biden-dirt. (In early September 2019, opinion/white-house/437719-ukrainian-to-us- the Heart of the Dispute Gripping Washington, Shokin swore in an affidavit that Vice Presi- prosecutors-why-dont-you-want-our-evi- Radio Free Europe, Sep. 24, 2019, https:// dent Biden pressured the Poroshenko admin- dence-on-democrats; (John Solomon wrote www.rferl.org/a/why-was-ukraine-top-pros- istration to fire him to protect Hunter the above columns based on the ecutor-fired-viktor-shokin/30181445.html. Biden. He further testified that he was forced disinformation that Mr. Giuliani gathered (Mr. Shokin had served as the Prosecutor out because he was leading ‘‘a wide ranging from Mr. Shokin, Mr. Lutsenko and others.) General during the Poroshenko administra- corruption probe’’ of Burisma and that he 79. See Donald J. Trump tion from February 2015–March 2016. In the was ‘‘forced to leave office, under direct and (@realDonaldTrump), Twitter (Mar. 20, 2019, fall of 2015, the Obama Administration grew intense pressure from Joe Biden and the U.S. 10:40 PM), https://twitter.com/ concerned that Mr. Shokin, despite promises Administration.’’ At the beginning of the af- realdonaldtrump/status/1108559080204001280. to increase anti-corruption investigations, fidavit, Shokin wrote that he was making (For instance, President Trump promoted a had not followed through, including on the statement at the request of lawyers act- link to Solomon’s column from March 20, promises to investigate corruption allega- ing for pro-Putin Ukrainian oligarch Dmitry 2019). tions against the Ukrainian energy company Firtash, who has a history of acting as a 80. See Donald Trump, Jr. Burisma. In March 2016, Vice President Russian agent and in July 2019, retained the (@DonaldJTrumpJr), Twitter (Apr. 2, 2019,

VerDate Sep 11 2014 04:33 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00038 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.094 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE February 27, 2020 CONGRESSIONAL RECORD — SENATE S1199 7:52 AM), https://twitter.com/donaldjtrumpjr/ 91. Chris Grancescani, President Trump’s grew concerned that Shokin, despite prom- status/1113046659456528385. (Donald Trump Jr. Former National Security Advisor ‘Deeply Dis- ises to increase anti-corruption investiga- retweeted Solomon’s April 1 column on April turbed’ by Ukraine Scandal: ‘Whole World is tions, had not followed through with enact- 2, 2019.) Watching’, ABC News, Sept. 29, 2019, https:// ing forms. For example, on September 24, 81. See Rudy Giuliani (@RudyGiuliani), abcnews.go.com/Politics/president-trumps- 2015, then US Ambassador to Ukraine Geof- Twitter (Mar. 22, 2019, 11:38 AM), https://twit- national-security-advisor-deeply-disturbed- frey Pyatt stated publicly that Shokin’s of- ter.com/RudyGiuliani/status/ ukraine/story?id=65925477. (Mr. Tom Bossert, fice ‘‘not only did not support investigations 1109117167176466432. (On March 22, Mr. President Trump’s former Homeland Secu- into corruption, but rather undermined pros- Giuliani tweeted an allegation from the arti- rity Adviser stated in a Press interview that ecutors working on legitimate corruption cle: ‘‘Hillary, Kerry, and Biden people the Crowdstrike allegations are, ‘‘completely cases.’’ Ambassador Pyatt specifically colluding with Ukrainian operatives to make debunked.’’ Mr. Bossert further stated, ‘‘The brought up Burisma as an example of an in- money and affect 2016 election.’’) United States government reached its con- vestigation that had languished under 82. Interview by Sean Hannity with Donald clusion on attributing to Russia the DNC Shokin’s tenure as Prosecutor General.) Trump, President, United States (Apr. 25, hack in 2016 before it even communicated it 97. See Joe Biden, then-Vice President, 2019). (Mr. Hannity asked the President if the to the FBI, before it ever knocked on the United States, Remarks to the Ukrainian people of the United States needed to see the door at the DNC. So a server inside the DNC Rada in Kyiv, Ukraine (Dec. 9, 2015). (On De- evidence Ukraine has with regards to was not relevant to our determination to the cember 9, 2015, Vice President Biden stated Ukraine colluding with Hillary Clinton’s attribution. It was made up front and before- in front of the Ukrainian Parliament (Rada): campaign. President Trump responded, ‘‘. . . hand.’’) ‘‘. . . you cannot name me a single democ- I think we do.’’ He went on to claim that 92. Allan Smith, ‘Enough’: Trump’s Ex- racy in the world where the cancer of corrup- that, ‘‘People have been saying . . . the con- Homeland Security Adviser ‘Disturbed,’ ‘Frus- tion is prevalent. You cannot name me one. cept of Ukraine, they have been talking trated’ by Ukraine Allegations, Says President They are thoroughly inconsistent. And it’s about it actually for a long time . . .’’) Must Let 2016 Go, NBC News, Sept. 29, 2019, not enough to set up a new anti-corruption 83. Interview by Howard Kurtz with Ru- https://www.nbcnews.com/politics/donald- bureau and establish a special prosecutor dolph Giuliani (Apr. 7, 2019). (For instance, trump/enough-trump-s-former-homeland-se- fighting corruption. The Office of the Gen- on April 7, 2019, Mr. Giuliani stated on Fox curity-adviser-disturbed-ukraine-allega- eral Prosecutor desperately needs reform. News, ‘‘I got information about three or four tions-n1060051. The judiciary should be overhauled. The en- months ago that a lot of the explanations for 93. See 166 Cong. Rec. 17, S596–98 (daily ed. ergy sector needs to be competitive, ruled by how this whole phony investigation started Jan. 27, 2020) (Statement of Ms. Counsel market principles—not sweetheart deals.’’) will be in the Ukraine, that there were a Bondi); See generally Adam Entous, Will Hun- 98. 166 Cong. Rec. 20, S727 (daily ed. Jan. 30, group of people in the Ukraine that were ter Biden Jeopardize his Father’s Campaign?, 2020) (statement of Mr. Counsel Philbin). working to help Hillary Clinton and were New Yorker, Jul. 1, 2019, https:// 99. Entous, supra note 86. colluding really . . . And then all of a sud- www.newyorker.com/magazine/2019/07/08/will- 100. See UNIAN, Ukrainian Prosecutor Gen- den, they revealed the story about Burisma hunter-biden-jeopardize-his-fathers-cam- eral Lutsenko Admits U.S. Ambassador Didn’t and Biden’s son . . . [Vice President Biden] paign; Michael Kranish & David L. Stern, As Give Him a Do Not Prosecute List, Apr. 18, 2019, bragged about pressuring Ukraine’s presi- Vice President, Biden Said Ukraine Should In- https://www.unian.info/politics/10520715- dent to firing [sic] a top prosecutor who was crease Gas Production. Then His Son Got a Job ukraine-prosecutor-general-lutsenko-admits- being criticized on a whole bunch of areas at a Ukrainian Gas Company., Washington u-s-ambassador-didn-t-give-him-a-do-not- but was conducting an investigation of this Post, Jul. 22, 2019, https:// prosecute-list.html; Daryna Krasnolutska, gas company which Hunter Biden served as a www.washingtonpost.com/politics/as-vice- Kateryna Choursina and Stephanie Baker, director . . .’’) president-biden-said-ukraine-should-in- Ukraine Prosecutor Says No Evidence of Wrong- 84. Trial Memorandum of the United States crease-gas-production-then-his-son-got-a- doing by Bidens, Bloomberg, May 16, 2019, House of Representatives, supra note 66, at job-with-a-ukrainian-gas-company/2019/07/21/ https://www.bloomberg.com/news/articles/ SMF 4. f599f42c-86dd-11e9-98c1- 2019-05-16/ukraine-prosecutor-says-no-evi- 85. Deposition of: Marie ‘‘Masha’’ e945ae5db8fb_story.html; Lucien Bruggeman, dence-of-wrongdoing-by-bidens; Michael Yovanovitch, Before the H. Perm. Select Comm. Biden Sought to Avoid a Conflict of Interest Be- On Intelligence, Joint with the Comm. on Over- Birnbaum, David L. Stern and Natalie fore the 2008 Campaign: Court Records, ABC sight and Reform and the Comm. on Foreign Af- Gryvnyak, Former Ukraine Prosecutor Says News, Oct. 8, 2019, https://abcnews.go.com/ fairs, 116th Cong. 131 (2019). (Ambassador Hunter Biden ‘Did Not Violate Anything’, Politics/joe-bidens-effort-dodge-sons-con- Yovanovitch testified that Deputy Secretary Washington Post, Sept. 26, 2019, https:// flict-interest-backfired/story?id=66371399; of State John Sullivan informed her that www.washingtonpost.com/world/europe/ Glen Kessler, GOP Tries to Connect Dots on ‘‘the President had lost confidence, and I former-ukraine-prosecutor-says-hunter- Biden and Ukraine, but Comes Up Short, Wash- would need to depart my post . . . And he biden-did-not-violate-anything/2019/09/26/ said, you’ve done nothing wrong. And he said ington Post, Dec. 4, 2019, https:// 48801f66-e068-11e9-be7f- _ that he had to speak to ambassadors who had www.washingtonpost.com/politics/2019/12/04/ 4cc85017c36f story.html; Andrew E. Kramer, been recalled for cause before and this was gop-tries-connect-dots-biden-ukraine-comes- Andrew Higgins and Michael Schwirtz, The not that.’’) up-short/. (The President’s Counsel made as- Ukrainian Ex-Prosecutor Behind the Impeach- 86. Adam Entous, The Ukrainian Prosecutor sertions of the appearance of conflict of in- ment Furor, N.Y. Times, Oct. 5, 2019, https:// Behind Trump’s Impeachment, The New York- terest, but did not produce evidence that www.nytimes.com/2019/10/05/world/europe/ er, Dec. 16, 2019, https://www.newyorker.com/ Hunter Biden broke the laws of the United ukraine-prosecutor-trump.html. (On April 21, magazine/2019/12/23/the-ukrainian-prosecutor- States or Ukraine or that Vice President 2019, Mr. Lutsenko admitted that the claim behind-trumps-impeachment. Biden acted corruptly in calling for the re- he made about U.S. ambassador Yovanovitch 87. Text Message from Yuriy Lutsenko, moval of then Prosecutor General Victor was false. In May 2019, Mr. Lutsenko said Prosecutor General, Ukraine, to Lev Parnas Shokin. Multiple media outlets have also un- there was no evidence of wronging by Vice (Mar. 22, 2019) (on file with H. Perm. Select dertaken investigations into the allegations President Biden or his son. In September Comm. on Intelligence). regarding Vice President Biden and Hunter 2019, Mr. Lutsenko said that Hunter Biden 88. Interview by Rachel Maddow with Lev Biden, and produced no evidence of wrong- did not violate Ukrainian laws. In October Parnas (Jan. 16, 2020). doing.) 2019, Mr. Lutsenko told the New York Times, 89. Impeachment Inquiry: Fiona Hill and 94. Interview of: Kurt Volker Before the H. ‘‘I understood very well what would interest David Holmes, supra note 57, at 40; Vladimir Perm. Select Comm. On Intelligence, Joint with them . . . I have 23 years in politics. I knew. Putin, President, Russia, Remarks in Joint the Comm. on Oversight and Reform and the I am a political animal.’’) News Conference with Hungarian Prime Min- Comm. on Foreign Affairs, 116th Cong. 36–37 101. Interview of: Kurt Volker, supra note 94, ister Viktor Orban (Feb. 2, 2017). (Russian (2019). at 354. President Vladimir Putin publicly accused 95. Alan Cullison, Bidens in Ukraine: An Ex- 102. Vogel, supra note, 67. Ukraine of interfering to support Secretary plainer, Wall Street Journal, Sept. 22, 2019, 103. Id. Clinton in 2016. On February 2, 2017 Putin https://www.wsj.com/articles/bidens- 104. Id. (Mr. Giuliani said, ‘‘He basically stated: ‘‘As we all know, during the presi- anticorruption-effort-in-ukraine-overlapped- knows what I am doing, sure, as his law- dential campaign in the United States, the with-sons-work-in-country-11569189782. (For yer.’’) Ukrainian government adopted a-unilateral example, Ukraine expert Anders Aslund from 105. Letter from Rudolph Giuliani to Arsen position in favor of one candidate. More than the Atlantic Council recalls, ‘‘Everyone in Avakov, Minister of Internal Affairs, that, certain oligarchs, certainly with the the Western community wanted Shokin Ukraine (May 10, 2019) (on file with H. Perm. approval of the political leadership, funded sacked. The whole G–7, the IMF, the EBRD, Select Comm. on Intelligence). (The letter . . . this female candidate.’’) everybody was united that Shokin must go, was provided to the House Permanent Select 90. Luke Barr & Alexander Mallin, FBI Di- and the spokesman for this effort was Joe Committee on Intelligence and was made rector Pushes Back on Debunked Conspiracy Biden.’’) public on January 14, 2020. In the letter, Mr. Theory About 2016 Election Interference, ABC 96. Geoffrey Pyatt, then-U.S. Ambassador Giuliani wrote, ‘‘I will be accompanied by News, Dec. 9, 2019, https://abcnews.go.com/ to Ukraine, Remarks at the Odesa Financial my colleague Victoria Toensing, a distin- Politics/fbi-director-pushes-back-debunked- Forum in Odesa, Ukraine (Sept. 24, 2015). (In guished American attorney who is very fa- conspiracy-theory-2016/story?id=67609244. the fall of 2015, the Obama Administration miliar with this matter.’’); Jo Becker, Walt

VerDate Sep 11 2014 04:33 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00039 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.096 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE S1200 CONGRESSIONAL RECORD — SENATE February 27, 2020 Bogdanich, Maggie Haberman, and Ben 126. See Releases Under FOIA, Just Secu- ‘‘[t]he nature of the communication was Protess, Why Giuliani Singled out 2 Ukrainian rity (Dec. 20, 2019) (on file at https://as- that—how could we institute a temporary Oligarchs to Help Look for Dirt, N.Y. Times, sets.documentcloud.org/documents/6590667/ hold consistent with the Impoundment Con- Nov. 25, 2019, https://www.nytimes.com/2019/ CPI-v-DoD-Dec-20-2019-Release.pdf). (Re- trol Act.’’); Deposition of: Laura Katherine 11/25/us/giuliani-ukraine-oligarchs.html; (As leased emails show that the OMB official Cooper Before the H. Perm. Select Comm. on In- noted prior, Victoria Toensing, along with Mike Duffey sent Acting Comptroller Elaine telligence, Joint with the Comm. on Oversight her Partner Joe DiGenova, were retained by McCusker a copy of the Washington Exam- and Reform and the Comm. on Foreign Affairs, pro-Putin Ukrainian oligarch Dmitry iner article on June 19, 2019 and said the 116th Cong. 47 (2019). (Deputy Assistant Sec- Firtash in July 2019. Facing extradition re- President ‘‘has asked about this funding re- retary of Defense Laura Cooper testified that lated to a bribery charge in Chicago in 2014, lease.’’); Eric Lipton, Maggie Haberman and at an interagency meeting soon after learn- Mr. Firtash was convinced by Mr. Giuliani Mark Mazzetti, Behind the Ukraine Aid ing that the hold was implemented for and his associates to get new legal represen- Freeze: 84 Days of Conflict and Confusion, N.Y. Ukraine security assistance the ‘‘deputies tation to better ingratiate himself with the Times, Dec. 29, 2019, https:// began to raise concerns about how this [the leadership at the Department of Justice www.nytimes.com/2019/12/29/us/politics/ hold] could be done a legal fashion . . .’’) under the Trump Administration. Mr. trump-ukraine-military- 133. Corey Welt, Cong. Research Serv., Firtash told the New York Times that Mr. aid.html?wpisrc=nl_powerup&wpmm=1. (The R45008, Ukraine: Background Conflict with Parnas and Mr. Fruman told him: ‘‘We may New York Times reported that OMB Officials Russia and U.S. Policy 30 (2019). help you, we are offering you good lawyers in learned President Trump had ‘‘a problem 134. Deposition of: Laura Katherine Cooper D.C. who might represent you and deliver with the aid’’ on June 19, 2019. The report Before the H. Perm. Select Comm. on Intel- this message to the U.S. DOJ.’’ Mr. Firtash further indicates: ‘‘Typical of the Trump ligence, Joint with the Comm. on Oversight and said that his contract to Ms. Toensing and White House, the inquiry was not born of a Reform and the Comm. on Foreign Affairs, Mr. DiGenova was $300,000 per month. Mr. rigorous policy process. Aides speculated 116th Cong. 47 (2019). (Deputy Assistant Sec- retary of Defense Cooper further explained Parnas’s lawyer told the New York Times, that someone had shown Mr. Trump a news that the conversation, ‘‘reflected a sense ‘‘Per Mr. Giuliani’s instructions, Mr. Parnas article about the Ukraine assistance and he that there was not an understanding of how told Mr. Firtash that Ms. Toensing and Mr. demanded to know more . . . [Acting OMB this [the hold] could legally play out,’’ and DiGenova were interested in collecting infor- Director Russell] Vought and his team took that ‘‘there was not an available [legal] mation on the Bidens.’’) to Google, and came upon a piece in the con- mechanism to simply not spend money’’ au- 106. See Eliana Johnson, Darren servative Washington Examiner saying that thorized, appropriated and notified to Con- Samuelsohn, Andrew Restuccia, and Daniel the Pentagon would pay for weapons and other military equipment for Ukraine, bring- gress for Ukraine.) Lippman, Trump: Discussing a Biden Probe 135. See Just Security FOIA Releases, supra ing American security aid to the country to with Barr Would Be ‘Appropriate’, Politico, note 126. May 10, 2019, https://www.politico.com/story/ $1.5 billion since 2014.’’) 136. See S. Rep. No. 93–688, at 75 (1987). (The 127. Deposition of: Mark Sandy Before the H. 2019/05/10/trump-biden-ukraine-barr-1317601. legislative history indicates that the purpose Perm. Select Comm. On Intelligence, Joint with 107. Charles Creitz, Giuliani Cancels Ukraine of the ICA was to ensure that ‘‘the practice the Comm. on Oversight and Reform and the Trip, Says He’d Be ‘‘Walking into a Group of of reserving funds does not become a vehicle Comm. on Foreign Affairs, 116th Cong. 39 People that are Enemies of the US,’’, Fox News, for furthering Administration policies and (2019). (OMB official Mark Sandy testified May 11, 2019, https://www.foxnews.com/poli- priorities at the expense of those decided by that he received an email on July 12, 2019, tics/giuliani-i-am-not-going-to-ukraine-be- Congress.’’) cause-id-be-walking-into-a-group-of-people- forwarded from White House aide Robert 137. U.S. Govt. Accountability Office, Legal that-are-enemies-of-the-us. Blair, which stated that the President had Decision Regarding Office of Management 108. Interview of: Kurt Volker, supra note 94, directed a hold on Ukraine security assist- and Budget—Withholding of Ukraine Security at 305; Impeachment Inquiry: Ambassador Gor- ance.); Deposition of: Jennifer Williams Before Assistance, File B–3311564, 1 (Jan. 16, 2020). don Sondland Before the H. Perm. Select Comm. the H. Perm. Select Comm. On Intelligence, 138. Memorandum from The White House of on Intelligence, 116th Cong. 8, 21 (2019) (state- Joint with the Comm. on Oversight and Reform President Trump’s Telephone Conversation ment of Amb. Sondland). and the Comm. on Foreign Affairs, 116th Cong. with President Zelenskyy of Ukraine (July 109. Interview of: Kurt Volker, supra note 94, 55 (2019). (Vice Presidential aide, Jennifer 25, 2019). at 31. Interview of: Ambassador Gordon Williams testified that she learned of a hold 139. Donald J. Trump (@realDonaldTrump), Sondland Before the H. Perm. Select Comm. On on State Department security assistance Twitter (Jan. 16, 2020, 3:39 PM), https://twit- Intelligence, Joint with the Comm. on Oversight funds (FMF) on July 3, 2019.) ter.com/realDonaldTrump/status/ and Reform and the Comm. on Foreign Affairs, 128. Impeachment Inquiry: Fiona Hill and 1217909231946477575?s=20 (President Trump has 116th Cong. 90 (2019). David Holmes, supra note 57, at 26. (Multiple repeatedly claimed that his call with Presi- 110. Interview of: Ambassador Gordon witnesses testified to this announcement oc- dent Zelensky on July 25 was perfect. For ex- Sondland Before the H. Perm. Select Comm. On curring at the July 18 interagency meeting ample, on January 16, 2020 President Trump Intelligence, Joint with the Comm. on Oversight on Ukraine, including Political Counselor to tweeted, ‘‘I JUST GOT IMPEACHED FOR and Reform and the Comm. on Foreign Affairs, US Embassy in Ukraine, David Holmes.). MAKING A PERFECT PHONE CALL!’’) 116th Cong. 91–92 (2019). 129. Impeachment Inquiry: Ambassador Wil- 140. Memorandum from The White House of 111. Id. at 71. liam B. Taylor and Mr. George Kent Before the President Trump’s Telephone Conversation 112. Id. at 22. H. Perm. Select Comm. on Intelligence, 116th with President Zelenskyy of Ukraine 3 (July 113. Deposition of: William B. Taylor Before Cong. 35 (2019). (For instance, Ambassador 25, 2019). the H. Perm. Select Comm. On Intelligence, Taylor testified the directive had come from 141. Id. Joint with the Comm. on Oversight and Reform the President to the Chief of Staff to OMB, 142. Id. and the Comm. on Foreign Affairs, 116th Cong. ‘‘but could not say why.’’) 143. Id. at 4. 23 (2019) (statement of Amb. Taylor). 130. Impeachment Inquiry: Ms. Jennifer Wil- 144. Id. at 4, 5. (The President referenced 114. Impeachment Inquiry: Ambassador Gor- liams and Lieutenant Colonel Alexander Attorney General Barr several times during don Sondland Before the H. Perm. Select Comm. Vindman, supra note 123, at 14–15. (For in- his phone call with President Zelensky.) on Intelligence, 116th Cong. 27 (2019) (state- stance, Vice Presidential aide Williams testi- 145. See Katie Benner, Justice Dept.’s Dis- ment of Amb. Sondland). fied that from when she first learned about missal of Ukraine Call Raises New Questions 115. Impeachment Inquiry: Fiona Hill and the hold on July 3, 2019, until it was lifted on About Barr, N.Y. Times, Sept. 25, 2019, https:// David Holmes, supra note 57, at 92. September 11, 2019, she never came to under- www.nytimes.com/2019/09/25/us/politics/wil- 116. Impeachment Inquiry: Ambassador Gor- stand why President Trump ordered the liam-barr-trump-ukraine.html. (As noted in don Sondland, supra note 114, at 18. hold.); Deposition of: Lieutenant Colonel Alex- the article, after the memorandum of tele- 117. Impeachment Inquiry: Ambassador Kurt ander S. Vindman Before the H. Perm. Select phone conversation from July 25th became Volker and Timothy Morrison Before the H. Comm. on Intelligence, Joint with the Comm. on public, the Justice Department spokesperson Perm. Select Comm. on Intelligence, 116th Cong. Oversight and Reform and the Comm. on For- stated, ‘‘Mr. Trump has not asked Mr. Barr 18 (2019) (statement of Mr. Morrison). eign Affairs, 116th Cong. 306 (2019). (Similarly, to contact Ukraine for any reason, Mr. Barr 118. Id. at 41. NSC official Lt. Col Vindman testified, none has not communicated with Ukraine on any 119. Id. at 94. of the ‘‘facts on the ground’’ changed before topic and Mr. Barr has not spoken with Mr. 120. Id. at 19. the President lifted the hold.) Giuliani about the president’s phone call ‘‘or 121. Impeachment Inquiry: Fiona Hill and 131. 166 Cong. Rec. 19, S688 (daily ed. Jan. anything related to Ukraine.’’) David Holmes, supra note 57, at 65–66. 29, 2020) (statement of Mr. Manager Crow). 146. See Mark Mazzetti & Katie Benner, 122. Id. at 66. 132. Deposition of: Mark Sandy Before the H. Trump Pressed Australian Leader to Help Barr 123. Impeachment Inquiry: Ms. Jennifer Wil- Perm. Select Comm. on Intelligence, Joint with Investigate Mueller Inquiry’s Origins, N.Y. liams and Lieutenant Colonel Alexander the Comm. on Oversight and Reform and the Times, Sept. 30, 2019, https:// Vindman Before the H. Perm. Select Comm. on Comm. on Foreign Affairs, 116th Cong. 51 www.nytimes.com/2019/09/30/us/politics/ Intelligence, 116th Cong. 19 (2019). (2019). (For instance, OMB official Mark trump-australia-barr-mueller.html. Kim 124. Impeachment Inquiry: Fiona Hill and Sandy testified that he conferred with other Sengupta, ‘‘It’s Like Nothing We Have Come David Holmes, supra note 57, at 66. officials such as Acting Deputy Assistant Across Before’’: UK Intelligence Officials Shak- 125. Id. at 67. Secretary (Comptroller) Elaine McCusker, en By Trump Administration’s Requests For

VerDate Sep 11 2014 04:33 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00040 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.098 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE February 27, 2020 CONGRESSIONAL RECORD — SENATE S1201 Help With Counter-Impeachment Inquiry, The claimed that the House Impeachment Man- 168. Deposition of: Tim Morrison Before the H. Independent, Nov. 1, 2019, https:// agers didn’t try to obtain first hand wit- Perm. Select Comm. on Intelligence, Joint with www.independent.co.uk/news/world/americas/ nesses while they were making their case in the Comm. on Oversight and Reform and the us-politics/trump-impeachment-inquiry-lat- the House. The President’s Counsel argued, Comm. on Foreign Affairs, 116th Cong. 268 est-russia-mueller-ukraine-zelensky- ‘‘They didn’t even subpoena John Bolton. (2019). a9181641.html. Katie Benner & Adam Gold- They didn’t even try to get his testimony. To 169. Maggie Haberman & Michael S. man, Justice Dept. is Said to Open Criminal In- insist now that this body will become the in- Schmidt, Trump Tied Ukraine Aid to Inquiries quiry Into Its Own Russia Investigation, N.Y. vestigative body—that this body will have to He Sought, Bolton Book Says, N.Y. Times, Times, Oct. 24, 2019, https:// do all of the discovery—then, this institution Jan. 26, 2020, https://www.nytimes.com/2020/ www.nytimes.com/2019/10/24/us/politics/john- will be effectively paralyzed for months on 01/26/us/politics/trump-bolton-book- durham-criminal-investigation.html. (De- end because it will have to sit as a Court of ukraine.html. spite denials that the Attorney General had Impeachment while now discovery will be 170. Text Messages from Gordon Sondland, no knowledge of the topics discussed on the done. It would be Ambassador Bolton, and if U.S. Ambassador to EU, to Kurt Volker, U.S. call, the Attorney General opened a Depart- there are going to be witnesses, in order for Ambassador to NATO and Special Envoy to ment of Justice investigation in April 2019, there to be, as they said, a fair trial, fair ad- Ukraine (Aug. 9, 2019) (on file with H. Perm. into the origins of the counterintelligence judication, then, the President would have to Select Comm. on Intelligence). (The effort investigation against the Trump campaign have his opportunity to call his witnesses, began with a text message from Ambassador in 2016. Aspects of this investigation in- and there would be depositions. This would Sondland to Ambassador Volker stating, ‘‘I volved contacting foreign leaders and asking drag on for months. Then that will be the think POTUS really wants the deliverable.); that their governments investigate aspects new precedent.’’ As the House Impeachment See Interview of: Kurt Volker, supra note 94, at of their involvement in that investigation. Managers argued, these assertions do not ac- 71–72. For example, at the Attorney General’s re- tually represent the facts, ‘‘We asked John 171. Interview of: Kurt Volker, supra note 94, quest, the President asked the governments Bolton to testify in the House, and he re- at 71. of Australia and the United Kingdom to as- fused. We asked his deputy, Dr. Kupperman, 172. Interview of: Kurt Volker, supra note 94, sist with the investigation including looking to testify, and he refused. Fortunately, we at 113. at the role that their intelligence and law asked their deputy, Dr. Fiona Hill, to testify, 173. Text Messages from Kurt Volker, U.S. enforcement agencies played. The New York and she did. We asked her deputy, Colonel Ambassador to NATO and Special Envoy to Times further reported that Attorney Gen- Vindman, to testify, and he did. We did seek Ukraine, to Gordon Sondland, U.S. Ambas- eral Barr ‘‘is closely managing the investiga- the testimony of John Bolton as well as Dr. sador to EU, and Andriy Yermak, Aide to tion even traveling to Italy to seek help Kupperman, and they refused. When we sub- Ukrainian President Zelensky (Aug. 13, 2019) from foreign officials there . . . Mr. Barr has poenaed Dr. Kupperman, he sued us. He took (on file with H. Perm. Select Comm. on In- also contacted government officials in Brit- us to court. When we raised a subpoena with telligence); Interview of: Kurt Volker, supra ain and Australia about their roles in the John Bolton’s counsel, the same counsel for note 94, at 71, 73. early stages of the Russia investigation.).); Dr. Kupperman, the answer was, ‘. . . you 174. Interview of: Kurt Volker, supra note 94, Interview by Rachel Maddow supra note 88. serve us with a subpoena, and we will sue at 188–189; See generally Text Message from (Additionally, Giuliani associate Lev Parnas you, too.’’ We knew, based on the McGahn Gordon Sondland, U.S. Ambassador to EU, to litigation, it would take months, if not stated publicly that Attorney General Barr, Kurt Volker, U.S. Ambassador to NATO and years, to force John Bolton to come and tes- ‘‘had to know everything’’ and was ‘‘basi- Special Envoy to Ukraine (Aug. 9, 2019) (on tify.’’) cally on the team.’’) file with H. Perm. Select Comm. on Intel- 155. Just Security FOIA Releases, supra 147. Text Message from Kurt Volker, U.S. ligence); Text Messages from Kurt Volker, note 126, at 40. Ambassador to NATO and Special Envoy to U.S. Ambassador to NATO and Special 156. Impeachment Inquiry: Fiona Hill and Ukraine, to Gordon Sondland, U.S. Ambas- Envoy to Ukraine, to Andriy Yermak, Aide David Holmes supra note 57, at 29. sador to EU, and William B. Taylor, Charge to Ukrainian President Zelensky (Aug. 10–12, 157. Id. at 29–30. 2019) (on file with H. Perm. Select Comm. on d’affaires at the U.S. Embassy in Kyiv (July 158. Mick Mulvaney, Acting Chief of Staff, Intelligence); (Ambassador Volker testified 19, 2019) (on file with H. Perm. Select Comm. The White House, at Press Briefing by Act- in his closed interview regarding the process on Intelligence). ing Chief of Staff Mick Mulvaney (Oct. 17, on the draft statement: ‘‘Rudy discussed, 148. Impeachment Inquiry: Ambassador Gor- 2019). don Sondland, supra note 114, at 27. 159. Id. Rudy Giuliani and Gordon [Sondland] and I, 149. Id. at 94–95. 160. Id. what it is they are looking for. And I shared 150. Id. at 52–55.; Text Message from Gordon 161. Caitlin Emma & Connor O’Brien, that with Andriy [Yermak]. And then Andriy Sondland, U.S. Ambassador to EU, to Kurt Trump Holds Up Ukraine Military Aid Meant to came back to me and said: We don’t think Volker, U.S. Ambassador to NATO and Spe- Confront Russia, Politico, Aug. 28, 2019, it’s a good idea. So that was obviously before cial Envoy to Ukraine (July 25, 2019) (on file https://www.politico.com/story/2019/08/28/ Andriy came back and said: We don’t want to with H. Perm. Select Comm. on Intel- trump-ukraine-military-aid-russia-1689531. do that.’’ Ambassador Volker further elabo- ligence). 162. Impeachment Inquiry: Ms. Laura Cooper rated: ‘‘So the Ukrainians were saying that 151. Text Message from Kurt Volker, U.S. and Mr. David Hale Before the H. Perm. Select just coming out of the blue and making a Ambassador to NATO and Special Envoy to Comm. on Intelligence, 116th Cong. 14 (2019) statement didn’t make any sense to them. If Ukraine, to Gordon Sondland, U.S. Ambas- (statement of Ms. Cooper). they’re invited to come to the White House sador to EU, and William B. Taylor, Charge 163. Deposition of: Catherine Croft Before the on a specific date for President Zelensky’s d’affaires at the U.S. Embassy in Kyiv (July H. Perm. Select Comm. on Intelligence, Joint visit, then it would make sense for President 19, 2019) (on file with H. Perm. Select Comm. with the Comm. on Oversight and Reform and Zelensky to come out and say something, on Intelligence); Text Message from Gordon the Comm. on Foreign Affairs, 116th Cong. 86– and it would be a much broader statement Sondland, U.S. Ambassador to EU, to Kurt 87, 101 (2019). (Croft, a career foreign service about a reboot of U.S.-Ukraine relations, not Volker, U.S. Ambassador to NATO and Spe- officer, further testified that she was sur- just on we’re investigating these things [2016/ cial Envoy to Ukraine (July 25, 2019) (on file prised at the effectiveness of their ‘‘diplo- Burisma].’’) with H. Perm. Select Comm. on Intel- matic tradecraft,’’ noting that they ‘‘found 175. Deposition of: William B. Taylor, supra ligence). (Text messages between Ambas- out very early on’’ that the United States note 113, at 190. sadors Sondland and Volker affirm that the was withholding critical security assistance 176. Id. at 36. message that Ambassador Volker passed to to Ukraine.) 177. Id. Mr. Yermak was passed by Ambassador 164. Andrew E. Kramer & Kenneth P. 178. Id. at 39–40. Volker in coordination with Ambassador Vogel, Ukraine Knew of Aid Freeze by Early 179. Deposition of: David A. Holmes Before the Sondland. On July 25, just prior to the phone August, Undermining Trump Defense, N.Y. H. Perm. Select Comm. on Intelligence, Joint call between Presidents Trump and Times, Oct. 23, 2019, https:// with the Comm. on Oversight and Reform and Zelensky, Ambassador Sondland texted to www.nytimes.com/2019/10/23/us/politics/ the Comm. on Foreign Affairs, 116th Cong. 28 Ambassador Volker: ‘‘call me.’’ Ambassador ukraine-aid-freeze-impeachment.html. (2019). Volker replied, ‘‘Had a great lunch w[ith] 165. Id. 180. Deposition of: William B. Taylor, supra Yermak and then passed your message to 166. Deposition of: Lieutenant Colonel Alex- note 113, at 39. (For instance, Ambassador him . . . think everything is in place.’’) ander S. Vindman Before the H. Perm. Select Taylor testified that he spoke to Sondland 152. Memorandum from The White House of Comm. on Intelligence, Joint with the Comm. on by phone and that Sondland, ‘‘said he had President Trump’s Telephone Conversation Oversight and Reform and the Comm. on For- talked to President Trump . . . Trump was with President Zelensky of Ukraine 5 (July eign Affairs, 116th Cong. 314 (2019). adamant that President Zelensky himself 25, 2019). 167. Eric Lipton, Maggie Haberman and had to clear things up and do it in public.’’); 153. Impeachment Inquiry: Ms. Jennifer Wil- Mark Mazzetti, Behind the Ukraine Aid Impeachment Inquiry: Ambassador Gordon liams and Lieutenant Colonel Alexander Freeze: 84 Days of Conflict and Confusion, N.Y. Sondland, supra note 114, at 109. (Ambassador Vindman, supra note 123, at 31. Times, Dec. 29, 2019, https:// Sondland did not dispute Taylor’s character- 154. 166 Cong. Rec. 19, S647 (daily ed. Jan. www.nytimes.com/2019/12/29/us/politics/ ization of these accounts.) 29, 2020) (statement of Mr. Counsel Philbin). trump-ukraine-military- 181. Impeachment Inquiry: Ambassador Gor- (For example, the President’s counsel falsely aid.html?wpisrc=nl_powerup&wpmm=1. don Sondland, supra note 114, at 19.

VerDate Sep 11 2014 04:33 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00041 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.100 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE S1202 CONGRESSIONAL RECORD — SENATE February 27, 2020 182. Impeachment Inquiry: Ambassador Wil- with President-Elect Zelenskyy of Ukraine ‘‘Andriy [Yermak, President Zelensky’s close liam B. Taylor and Mr. George Kent, supra (Apr. 21, 2019); Memorandum from The White aide] asked whether any request had ever note 129, at 44. House of President Trump’s Telephone Con- been made by the U.S. to investigate elec- 183. Id. at 44, 46. versation with President Zelenskyy of tion interference in 2016.’’ Ambassador 184. Letter from Whistleblower to Adam Ukraine (July 25, 2019). Volker confirmed in his testimony that Schiff, Chairman, H. Perm. Select Comm. on 202. Impeachment Inquiry: Ms. Jennifer Wil- Yermak’s inquiry equated to ‘‘a request from Intelligence, and Richard Burr, Chairman, S. liams and Lieutenant Colonel Alexander the Department of Justice.’’) Select Comm. on Intelligence (August 12, Vindman, supra note 123, at 24–25. (Lt. Col. 210. Interview of: Kurt Volker, supra note 94, 2019). Vindman testified that recommended talk- at 199. (Ambassador Volker testified that to 185. Id. ing points for the April 21 call included root- his knowledge there was not an official 186. Michael S. Schmidt, Julian E. Barnes, ing out corruption.); See Memorandum from United States Department of Justice re- and Maggie Haberman, Trump Knew of Whis- The White House of President Trump’s Tele- quest.). tleblower Complaint When He Released Aid to phone Conversation with President-Elect 211. European Union External Action, EU- Ukraine, N.Y. Times, Nov. 26, 2019, https:// Zelenskyy of Ukraine (Apr. 21, 2019). (The Ukraine Relations—Factsheet (Jan. 28, 2020), www.nytimes.com/2019/11/26/us/politics/ memorandum of telephone call from April 21 https://eeas.europa.eu/headquarters/head- trump-whistle-blower-complaint- shows the issue was not raised.); Impeachment quarters-homepage_en/4081/%20EU- ukraine.html. Inquiry: Ms. Jennifer Williams and Lieutenant 187. Letter from Michael K. Atkinson, In- Ukraine%20relations%20-%20factsheet; Iain Colonel Alexander Vindman, supra note 123, at King, Not Contributing Enough? A Summary spector General, the Intelligence Commu- 31. (Lt. Col Vindman further testified that he nity, to Adam Schiff, Chairman, House of European Military and Development As- prepared the President’s talking points for sistance to Ukraine Since 2014 (Ctr. for Stra- Perm. Select Comm. on Intelligence, and his July 25th phone call with President Devin Nunes, Ranking Member, House Perm. tegic & Int’l Studies, Sept. 26, 2019), https:// Zelensky and the topics for that call in- www.csis.org/analysis/not-contributing- Select Comm. on Intelligence (Sep. 9, 2019). cluded, ‘‘cooperation on supporting a reform 188. Press Release, H. Perm. Select Comm. enough-summary-european-military-and-de- agenda, anticorruption efforts, and helping on Intelligence, Three House Committees velopment-assistance-ukraine-2014. President Zelensky implement his plans to Launch Wide-Ranging Investigation into 212. See further discussion of this topic at end Russia’s war against Ukraine.’’); Memo- Trump-Giuliani Ukraine Scheme (Sept. 9, page 21. randum from The White House of President 2019). (On September 9, 2019, the House For- 213. Id. Trump’s Telephone Conversation with Presi- eign Affairs Committee, in conjunction with 214. Deposition of: Mark Sandy Before the H. dent Zelenskyy of Ukraine (July 25, 2019). the House Permanent Select Committee on Perm. Select Comm. on Intelligence, Joint with (The memorandum of telephone call from Intelligence, and House Committee on Over- the Comm. on Oversight and Reform and the July 25, 2019, indicates that the President did sight and Government Reform launched ‘‘a Comm. on Foreign Affairs, 116th Cong. 143 not raise these issues.); Impeachment Inquiry: wide-ranging investigation into reported ef- (2019). (Mr. Sandy testified that OMB Official Kurt Volker and Timothy Morrison, supra note forts by President Trump, the President’s Mike Duffey, ‘‘simply said, we need to let the 117, at 34. (NSC official Morrison testified personal lawyer Rudy Giuliani, and possibly hold take place . . . and then revisit this that references to Crowdstrike, the DNC others to pressure the government of issue with the President.’’) server, and 2016 election, and to Vice Presi- Ukraine to assist the President’s reelection 215. Id. at 179. (Mr. Sandy responded dent Biden and his son, were not included in campaign.’’) ‘‘that’s correct’’ to the question: ‘‘at some the President’s talking points as written by 189. See Just Security Releases, supra note point in early September, Mr. Blair stopped 126, at 1. the NSC.) 203. Deposition of: Tim Morrison, supra note by your office and told you that the reason 190. Kenneth P. Vogel & Benjamin Novak, for the hold was out of concern that the Giuliani, Facing Scrutiny, Travels to Europe to 168, at 41. 204. See further discussion of this topic on United States gives more aid to Ukraine Interview Ukrainians, N.Y Times, Dec. 4, 2019, pages 22–23. than other countries? Or, rather, that other https://www.nytimes.com/2019/12/04/us/poli- 205. See further discussion of this topic on countries should give more as well.’’) tics/giuliani-europe-impeachment.html. page 23. 216. Id. at 180. (For instance, Mr. Giuliani met with Mr. 206. Impeachment Inquiry: Ambassador Marie 217. U.S. Govt. Accountability Office, supra Shokin in Ukraine as part of a trip to gen- ‘‘Masha’’ Yovanovitch Before the H. Perm. Se- note 137. erate additional information on the Bidens lect Comm. on Intelligence, 116th Cong. 115 218. Kate Brannen, Exclusive: Unredacted and 2016 election collusion. According to the (2019). (For instance, during her testimony, Ukraine Documents Reveal Extent of Penta- New York Times, Giuliani’s trip was intended Ambassador Yovanovitch was asked whether gon’s Level Concerns, Just Security, Jan. 2, ‘‘to help prepare more episodes of a docu- it was appropriate to investigate corruption 2020, https://www.justsecurity.org/67863/exclu- mentary series for a conservative television including a potentially corrupt company sive-unredacted-ukraine-documents-reveal- outlet promoting his pro-Trump, anti-im- such as Burisma. Ambassador Yovanovitch extent-of-pentagons-legal-concerns/. peachment narrative.’’) responded: ‘‘I think it’s appropriate if it’s 219. Deposition of: Laura Katherine Cooper, 191. Opinion Memorandum of United States part of our national strategy. What I would supra note 134, at 79–81. Senator John F. Reed, supra note 38, at 3. say is that we have a process for doing that. 192. Id. at 9 220. Id. at 80–81. It’s called the Mutual Legal Assistance Trea- 193. Deposition of: Lieutenant Colonel Alex- 221. Office of the Director of National In- ty. We have one with Ukraine, and generally ander S. Vindman, supra note 166, at 18. telligence, National Intelligence Council, 194. Impeachment Inquiry: Ms. Jennifer Wil- it goes from our Department of Justice to supra note 63. liams and Lieutenant Colonel Alexander the Ministry of Justice in the country of in- 222. Staff of the S. Select Comm. on Intel- Vindman, supra note 123, at 15. terest.’’); Interview of: George Kent, supra ligence, 115th Cong., Rep. on The Intelligence 195. Deposition of: Jennifer Williams Before note 63, at 158. (Deputy Assistant Secretary Community Assessment: Assessing Russian the H. Perm. Select Comm. on Intelligence, Joint Kent, a career diplomat and recognized ex- Activities and Intentions in Recent U.S. with the Comm. on Oversight and Reform and pert on anti-corruption measures stated in Elections 2 (Comm. Print 2018). (On July 3, the Comm. on Foreign Affairs, 116th Cong. 149 his deposition: ‘‘. . . if there’s any criminal 2018, the Senate Select Committee on Intel- (2019). nexus for any activity involving the U.S., ligence announced that they had concluded 196. Deposition of: Lieutenant Colonel Alex- that U.S. law enforcement by all means an in-depth review of the Intelligence Com- ander S. Vindman, supra note 166, at 97; Depo- should pursue that case, and if there’s an mittee’s January 6, 2017, assessment and con- sition of: Tim Morrison, supra note 168, at 16. international connection, that we have cluded that the assessment ‘‘is a sound intel- 197. Letter from Whistleblower, supra note mechanisms to ask either through Depart- ligence product.’’) 184, at 3. ment of Justice MLAT in writing or through 223. 1 Mueller, supra note 60, at 1. (Special 198. Letter from John C. Rood, Under Sec- the presence of individuals representing the Counsel Mueller concluded ‘‘the Russian gov- retary of Defense, U.S. Department of De- FBI, our legal attaches, to engage foreign ernment interfered . . . in sweeping and sys- fense, to Eliot L. Engel, Chairman, H. Comm. governments directly based on our concerns tematic fashion.’’) on Foreign Affairs (May 23, 2019). that there had been some criminal act vio- 224. Impeachment Inquiry: Fiona Hill and 199. Deposition of: Laura Katherine Cooper, lating U.S. law.’’) David Holmes, supra note 57 (statement of Dr. supra note 134, at 49. (Ms. Cooper testified 207. Memorandum from The White House of Fiona Hill). that the officials present at the July 26 President Trump’s Telephone Conversation meeting did not consider corruption to be a with President Zelensky of Ukraine (July 25, 225. Impeachment Inquiry: Ambassador Kurt legitimate reason for the hold because they 2019). Volker and Timothy Morrison, supra note 117, unanimously agreed that Ukraine was mak- 208. Caitlin Oprysko, Trump pressed at 11. ing sufficient progress on anti-corruption re- Ukraine’s president to work with Barr for dirt 226. Id. forms, as certified by the Defense Depart- on Biden, Politico, Sep. 25, 2019, https:// 227. Impeachment Inquiry: Ambassador Wil- ment on May 23, 2019.) www.politico.com/story/2019/09/25/white- liam B. Taylor and Mr. George Kent, supra 200. Deposition of: William B. Taylor, supra house-releases-transcript-of-trumps-call- note 129, at 169–170. note 113, at 28. with-ukraines-president-1510767. 228. Id. at 57. 201. Memorandum from The White House of 209. Interview of: Kurt Volker, supra note 94, 229. Id. at 54. President Trump’s Telephone Conversation at 191. (Ambassador Volker testified that 230. Id. at 45.

VerDate Sep 11 2014 06:04 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00042 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.102 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE February 27, 2020 CONGRESSIONAL RECORD — SENATE S1203 231. Interview of: Kurt Volker, supra note 94, 247. Nancy Pelosi, Speaker, U.S. House of ter.com/realDonaldTrump/status/ at 15. Representatives, Impeachment Inquiry An- 1179925259417468928?s=20. 232. Interview of: George Kent, supra note 63, nouncement (Sep. 24, 2019). 262. Staff of H. Perm. Select Comm. on In- at 114. 248. Letter from Elijah E. Cummings, telligence, 116th Cong., Rep. on The Trump- 233. 165 Cong. Rec. 205, H12193 (daily ed. Chairman, H. Comm. on Oversight and Re- Ukraine Impeachment Inquiry 220–224 Dec. 18, 2019) (statement of Rep. Adam form, et al., to John Michael Mulvaney, Act- (Comm. Print 2019). Schiff). ing Chief of Staff to the President, The 263. Id. at 219–220. 234. H.R. Res. 755, 116th Cong. Art. II (2019). White House (Oct. 4, 2019). 264. Id. at 226–227. 235. Id. 249. Letter from Eliot L. Engel, Chairman, 265. Id. at 224–226. 236. See generally The Federalist Paper No. H. Comm. on Foreign Affairs, et al., to Mi- 266. Memorandum from The White House of 47 (James Madison) (Jacob E. Cooke ed., chael R. Pompeo, Secretary, U.S. Depart- President Trump’s Telephone Conversation 1961); The Federalist Paper No. 48 (James ment of State (Sept. 27, 2019); Letter from with President-Elect Zelenskyy of Ukraine Madison) (Jacob E. Cooke ed., 1961); The Fed- Eliot L. Engel, Chairman, H. Comm. on For- (Apr. 21, 2019). eralist Paper No. 49 (James Madison) (Jacob eign Affairs, et al., to T. Ulrich Brechbuhl, 267. Memorandum from The White House of E. Cooke ed., 1961); The Federalist Paper No. Counselor, U.S. Department of State (Oct. 25, President Trump’s Telephone Conversation 50 (James Madison) (Jacob E. Cooke ed., 2019). with President Zelenskyy of Ukraine (July 1961); The Federalist Paper No. 51 (James 250. Letter from Adam B. Schiff, Chairman, 25, 2019). Madison) (Jacob E. Cooke ed., 1961). (Fed- H. Perm. Select Comm. on Intelligence, et 268. Donald Trump, President, United eralist Papers No. 47 through No. 51 explain al., to Mark T. Esper, Secretary, U.S. De- States of America, Remarks by President how the Executive, Legislative, and Judicial partment of Defense (Oct. 7, 2019). Trump and President Niinist of the Republic Branches were to be wholly separated from 251. Letter from Adam B. Schiff, Chairman, of Finland in Joint Press Conference (Oct., 2, each other, yet accountable to each other H. Perm. Select Comm. on Intelligence, et 2019). (On October 2, 2019, President Trump through a system of checks and balances.); al., to Russell T. Vought, Acting Director, stated, ‘‘All because they didn’t know that I See also Nixon v. Administrator of General U.S. Office of Management and Budget (Oct. had a transcript done by very, very talented Services, 433 U.S. 425, 426 (1977). (In Nixon v. 7, 2019); Letter from Eliot L. Engel, Chair- people—word for word, comma for comma. GSA, the Supreme Court articulated the test man, H. Comm. on Foreign Affairs, et al., to Done by people that do it for a living. We for a violation of the separation of powers as Russell T. Vought, Acting Director, U.S. Of- had an exact transcript.’’) occurring when the action of one branch fice of Management and Budget (Oct. 25, 269. Deposition of: Lieutenant Colonel Alex- ‘‘prevents [another branch] from accom- 2019); Letter from Eliot L. Engel, Chairman, ander S. Vindman, supra note 166, at 53–55. 270. H.R. Rep. No. 116–346, at 134–135 (2019). plishing its constitutionally assigned func- H. Comm. on Foreign Affairs, et al., to Mi- (The following Trump Administration offi- tions.’’) chael Duffey, Associate Director for National cials defied congressional subpoenas direct- 237. U.S. Const. art. II, § 3. Security Programs, U.S. Office of Manage- ing them to testify in the impeachment in- 238. McGrain v. Daugherty, 273 U.S. 135, ment and Budget (Oct. 25, 2019). 174–175 (1927). (‘‘A legislative body cannot 252. Letter from Eliot L. Engel, Chairman, quiry: John Michael Mulvaney, Acting Chief legislate wisely or effectively in the absence H. Comm. on Foreign Affairs, et al., to of Staff to the President, The White House; of information respecting the conditions James Richard ‘‘Rick’’ Perry, Secretary, Robert B. Blair, Assistant to the President which the legislation is intended to affect or U.S. Department of Energy (Oct. 10, 2019). and Senior Advisor to the Chief of Staff, The change; and where the legislative body does 253. Letter from Adam B. Schiff, Chairman, White House; John A. Eisenberg, Deputy not itself possess the requisite information— H. Perm. Select Comm. on Intelligence, et Counsel to the President for National Secu- which not infrequently is true—recourse al., to Rudolph ‘‘Rudy’’ W. L. Giuliani, rity Affairs, the White House and Legal Ad- must be had to others who do possess it. Ex- Giuliani Partners LLC (Sept. 30, 2019). visor, National Security Council; Michael perience has taught that mere requests for 254. H.R. Rep. No. 116–266, at 3 (2019). Ellis, Senior Associate Counsel to the Presi- such information often are unavailing, and 255. Letter from Adam B. Schiff, Chairman, dent, The White House, and Deputy Legal also that information which is volunteered is H. Perm. Select Comm. on Intelligence, et Advisor, National Security Council; Preston not always accurate or complete; so some al., to Paul W. Butler, Esq., Counsel to Mi- Wells Griffith, Senior Director for Inter- means of compulsion are essential to obtain chael Ellis, Senior Associate Counsel to the national Energy and Environment, National what is needed. All this was true before and President, The White House, and Deputy Security Council; Russell T. Vought, Acting when the Constitution was framed and Legal Advisor, National Security Council Director, Office of Management and Budget; adopted. In that period the power of in- (Nov. 3, 2019); Letter from Adam B. Schiff, Michael Duffey, Associate Director for Na- quiry—with enforcing process—was regarded Chairman, H. Perm. Select Comm. on Intel- tional Security Programs, Office of Manage- and employed as a necessary and appropriate ligence, et al., to Karen Williams, Esq., ment and Budget; Brian McCormack, Asso- attribute of the power to legislate—indeed, Counsel to Preston Wells Griffith, Senior Di- ciate Director for Natural Resources, Energy was treated as inhering in it. Thus there is rector for International Energy and Environ- and Science, Office of Management and ample warrant for thinking, as we do, that ment, National Security Council (Nov. 4, Budget, and former Chief of Staff to Sec- the constitutional provisions which commit 2019). retary, U.S. Department of Energy; and T. the legislative function to the two houses 256. Letter from Adam B. Schiff, Chairman, Ulrich Brechbuhl, Counselor, Department of are intended to include this attribute to the H. Perm. Select Comm. on Intelligence, et State). end that the function may be effectively ex- al., to Whitney C. Ellerman, Counsel to Rob- 271. Staff of H. Perm. Select Comm. on In- ercised.’’) ert B. Blair, Assistant to the President and telligence, 116th Cong., Rep. on The Trump- 239. Kilbourn v. Thompson, 103 U.S. 168, 190 Senior Advisor to the Chief of Staff, The Ukraine Impeachment Inquiry 222–224 (1880). White House (Nov. 3, 2019); H. Perm. Select (Comm. Print 2019). 240. U.S. Const. art. I, § 2, cl. 5. Comm. on Intelligence, Subpoena to John 272. Id. at 225. 241. Frank O. Bowman III, High Crimes & Michael Mulvaney, Acting Chief of Staff, 273. Id. at 226–227. Misdemeanors: A History of Impeachment The White House (Nov. 7, 2019). 274. Id. at 25, 108–109, 134–135, 137–138. for the Age of Trump 199–200 (2019). (‘‘The 257. Letter from Eliot L. Engel, Chairman, 275. Donald J. Trump (@realDonaldTrump), subpoena power in impeachment cases arises H. Comm. on Foreign Affairs, et al., to Brian Twitter (Oct. 8, 2019, 9:23 AM), https://twit- directly from an explicit constitutional di- McCormack, Associate Director for Natural ter.com/realDonaldTrump/status/ rective that the House conduct an adjudica- Resources, Energy and Science, U.S. Office of 1181560772255719424. (Ten days before Ambas- tive proceeding akin to a grand jury, the suc- Management and Budget (Nov. 1, 2019). sador Sondland’s deposition before the House cess of which is necessarily dependent on the 258. Letter from Adam B. Schiff, Chairman, Permanent Select Committee on Intel- availability of relevant evidence. Without H. Perm. Select Comm. on Intelligence, et ligence, the President issued two tweets, in- the power to compel compliance with sub- al., to Justin Shur, Esq., Counsel to Jennifer dicating that Ambassador Sondland should poenas and the concomitant right to im- Williams, Special Advisor for Europe and not cooperate because he had done nothing peach a president for refusal to comply, the Russia, Office of the Vice President (Nov. 4, wrong: ‘‘I would love to send Ambassador impeachment power would be nullified.’’) 2019); H. Perm. Select Comm. on Intel- Sondland, a really good man and great 242. Cong. Globe, 27th Cong., 2d Sess. 580 ligence, Subpoena to Jennifer Williams, Spe- American, to testify, but unfortunately he (1842) (statement of Rep. John Quincy cial Advisor for Europe and Russia, Office of would be testifying before a totally com- Adams). the Vice President (Nov. 19, 2019). promised kangaroo court, where Repub- 243. H.R. Rep. 93–1305, at 4 (1974). 259. Letter from Pat A. Cipollone, Counsel lican’s rights have been taken away, and 244. H.R. Res. 660, 116th Cong. (2019). to the President, The White House, to Nancy true facts are not allowed out for the public. 245. Press Release, H. Perm. Select Comm. Pelosi, Speaker, U.S. House of Representa- . . . to see. Importantly, Ambassador on Intelligence, Three House Committees tives, et al. 7 (Oct. 8, 2019). Sondland’s tweet, which few report, stated, I Launch Wide-Ranging Investigation into 260. Jordyn Phelps, ‘We’re Fighting All the believe you are incorrect about President Trump-Giuliani Ukraine Scheme (Sept. 9, Subpoenas’: Trump on Battle with House Demo- Trump’s intentions. The President has been 2019). crats, ABC News, Apr. 24, 2019, https:// crystal clear: no quid pro quo’s of any kind.’ 246. Letter from Eliot L. Engel, Chairman, abcnews.go.com/Politics/fighting-subpoenas- That says it ALL!’’) H. Comm. on Foreign Affairs, et al., to Pat trump-battle-democrats/story?id=62600497. 276. Donald J. Trump (@realDonaldTrump), Cipollone, Counsel to the President, The 261. Donald J. Trump (@realDonaldTrump), Twitter (Oct. 23, 2019, 2:58 PM), https://twit- White House, (Sep. 9, 2019). Twitter (Oct. 3. 2019, 9:04 PM), https://twit- ter.com/realdonaldtrump/status/

VerDate Sep 11 2014 06:04 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00043 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.105 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE S1204 CONGRESSIONAL RECORD — SENATE February 27, 2020 1187080923961012228?lang=en. (The day after 283. McGrain v. Daugherty, 273 U.S. 135, 175 ‘‘essential check in the hands of [Congress] Ambassador Taylor’s October 22, 2019, deposi- (1927). (The Supreme Court in McGrain v. upon the encroachments of the executive’’ tion before the House Permanent Select Daugherty elaborated on Congress’ occa- and to ensure that the President could not be Committee on Intelligence, President Trump sional need to compel information, writing above the law.) suggested that Ambassador Taylor’s testi- that ‘‘A legislative body cannot legislate 295. Comm. on the Judiciary, U.S. House of mony was politically motivated: ‘‘Never wisely or effectively in the absence of infor- Representatives v. Miers, 558 F. Supp. 2d 53, Trumper Republican John Bellinger, rep- mation respecting the conditions which the 102–103 (2008). (‘‘Congress’s power of inquiry resents Never Trumper Diplomat Bill Taylor legislation is intended to affect or change; is as broad as its power to legislate and lies (who I don’t know), in testimony before Con- and where the legislative body does not itself at the very heart of Congress’s constitu- gress! Do Nothing Democrats allow Repub- possess the requisite information—which not tional role. Indeed, the former is necessary licans Zero Representation, Zero due proc- infrequently is true—recourse must be had to the proper exercise of the latter: accord- ess, and Zero Transparency. . . .’’) to others who do possess it. Experience has ing to the Supreme Court, the ability to 277. Donald J. Trump (@realDonaldTrump), taught that mere requests for such informa- compel testimony is ‘‘necessary to the effec- Twitter (Nov. 15, 2019, 10:01 AM), https://twit- tion often are unavailing, and also that in- tive functioning of courts and legislatures ... ter.com/realDonaldTrump/status/ formation which is volunteered is not always Thus, Congress’s use of (and need for vindica- 1195356211937468417. (The morning of her hear- accurate or complete; so some means of com- tion of) its subpoena power in this case is no ing on November 15, 2019, President Trump pulsion are essential to obtain what is need- less legitimate or important than was the issued a series of disparaging, accusatory ed.’’); See also Watkins v. United States, 354 grand jury’s in United States v. Nixon. Both tweets saying: ‘‘Everywhere Marie U.S. 178, 187–95 (1957); See also Eastland v. involve core functions of a co-equal branch Yovanovitch went turned bad. She started U.S. Servicemen’s Fund, 421 U.S. 491, 504–05 of the federal government, and for the rea- off in Somalia, how did that go? Then fast (1975). sons identified in Nixon, the President may forward to Ukraine, where the new Ukrain- 284. H.R. Doc. No. 115-77, at 586–588 (2019). only be entitled to a presumptive, rather ian President spoke unfavorably about her in 285. Watkins v. United States, 354 U.S. 178, than an absolute, privilege here. And it is my second phone call with him. It is a U.S. 179 (1957). (The Supreme Court held in Wat- certainly the case that if the President is en- President’s absolute right to appoint ambas- kins that ‘‘In authorizing an investigation by titled only to a presumptive privilege, his sadors.... They call it ‘‘serving at the a committee, it is essential that the Senate close advisors cannot hold the superior card pleasure of the President.’’ The U.S. now has or House should spell out the committee’s of absolute immunity.’’) a very strong and powerful foreign policy, jurisdiction and purpose with sufficient par- 296. Comm. on Judiciary, U.S. House of much different than proceeding administra- ticularity to insure that compulsory process Representatives v. McGahn, llF. Supp. 3d tions. It is called, quite simply, America is used only in furtherance of a legislative ll, No. 19–cv–2379 (KBJ), 2019 WL 6312011 First! With all of that, however, I have done purpose.’’ As such, the Court also held that (D.D.C. Nov. 25, 2019) (Ketanji Brown Jack- FAR more for Ukraine than O.’’) ‘‘a congressional investigation into indi- son, J.) (Rejecting the Department of Jus- 278. The White House (@WhiteHouse), vidual affairs is invalid if unrelated to any tice’s argument that presidential advisors Twitter (Nov. 19, 2019, 12:49 PM), https://twit- legislative purpose, because it is beyond the like Don McGahn enjoy absolute immunity from compelled congressional testimony.) ter.com/whitehouse/status/ powers conferred upon Congress by the Con- 297. William French Smith, Assertion of Ex- 1196848072929796096?lang=en. (During the stitution.’’) ecutive Privilege in Response to a Congressional hearing of Lt. Col Vindman on November 19, 286. Letter from Adam B. Schiff, Chairman, Subpoena in Opinions of the Legal Counsel, 2019, the official White House twitter ac- H. Perm. Select Comm. on Intelligence, et Department of Justice 31 (October 13, 1981) count tweeted the following message, sug- al., to Paul W. Butler, Esq., Counsel to Mi- (‘‘The accommodation required is not simply gesting that Lt. Col. Vindman was not a reli- chael Ellis, Senior Associate Counsel to the an exchange of concessions or a test of polit- able witness: ‘‘Tim Morrison, Alexander President, The White House, and Deputy Vindman’s former boss, testified in his depo- ical strength. It is an obligation of each Legal Advisor, National Security Council branch to make a principled effort to ac- sition that he had concerns about Vindman’s (Nov. 3, 2019); Letter from Adam B. Schiff, knowledge, and if possible to meet, the le- judgment.’’) Chairman, H. Perm. Select Comm. on Intel- 279. Donald J. Trump (@realDonaldTrump), gitimate needs of the other branch.’’) ligence, et al., to Karen Williams, Esq., 298. United States v. AT&T Co., 567 F.2d Twitter (Nov. 17, 2019, 2:57 PM), https://twit- Counsel to Preston Wells Griffith, Senior Di- 121, 127 (D.C. Cir. 1977). ter.com/realdonaldtrump/status/ rector for International Energy and Environ- 299. See e.g. Neal Devins, Congressional-Ex- 1196155347117002752?lang=en. (On Sunday, No- ment, National Security Council (Nov. 4, ecutive Information Access Disputes: A Modest vember 17, 2019, two days before Ms. Williams 2019); Letter from Adam B. Schiff, Chairman, Proposal—Do Nothing, 48 Admin. L. Rev. 109, scheduled hearing before the House Perma- H. Perm. Select Comm. on Intelligence, et 116 (1996). nent Select Committee on Intelligence on al., to Whitney C. Ellerman, Counsel to Rob- 300. See id. at 122, 125. (‘‘Types of inter- November 19, the President attempted to in- ert B. Blair, Assistant to the President and mediate options [when there are executive fluence her testimony by tweeting: ‘‘Tell Senior Advisor to the Chief of Staff, The privilege claims] include the executive pro- Jennifer Williams, whoever that is, to read White House (Nov. 3, 2019); H. Perm. Select viding the requested information in timed BOTH transcripts of the presidential calls, & Comm. on Intelligence, Subpoena to John stages, the executive releasing expurgated or see the just released ststement (sic) from Michael Mulvaney, Acting Chief of Staff, redacted versions of the information, the ex- Ukraine. Then she should meet with the The White House (Nov. 7, 2019); Letter from ecutive preparing summaries of the informa- other Never Trumpers, who I don’t know & Eliot L. Engel to Brian McCormack, supra tion, Congress promising to maintain con- mostly never even heard of, & work out a note 257; Letter from Eliot L. Engel, Chair- fidentiality regarding the information, and better presidential attack!’’) man, H. Comm. on Foreign Affairs, et al., to Congress inspecting the material while it re- 280. Trial Memorandum of President Don- John A. Eisenberg, Deputy Counsel to the mains in executive custody.’’) ald J. Trump, supra note 25, at 37. President for National Security Affairs, the 301. William P. Barr, Congressional Requests 281. Staff of H. Perm. Select Comm. on In- White House and Legal Advisor, National Se- for Confidential Executive Branch Information telligence, 116th Cong., Rep. on The Trump- curity Council (Nov. 1, 2019); H.R. Rep. No. in Opinions of the Legal Counsel, Depart- Ukraine Impeachment Inquiry 235–236, 239– 116–346, at 134–135 (2019). ment of Justice 153, 162 (June 19, 1989). 241, 243–250 (Comm. Print 2019). (From the 287. Letter from Pat A. Cipollone to Nancy 302. See John E. Bies, Primer on Executive Department of State, that included Marie Pelosi, supra note 259, at 2. Privilege and the Executive Branch Approach to Yovanovitch, Gordon Sondland, George 288. Donald Trump, President, United Congressional Oversight, Lawfare, June 16, Kent, William Taylor, and T. Ulrich States of America, Remarks by President 2017, https://www.lawfareblog.com/primer-ex- Brechbuhl. From the Department of Defense, Trump in Press Conference, Davos, Switzer- ecutive-privilege-and-executive-branch-ap- that included Laura Cooper. In addition, the land (Jan. 22, 2020). proach-congressional-oversight. (‘‘If negotia- White House directed Charles Kupperman 289. United States v. Nixon, 418 U.S. 683, 706 tions reach a standstill and these officials not to cooperate.). (1974). conclude that the circumstances warrant in- 282. See Watkins v. United States, 354 U.S. 290. Id. at 706, 713. (Dicta from United States vocation of executive privilege, they prepare 178, 187 (1957). (Even in exercising its ordi- v. Nixon further suggests that a claim of con- materials for the White House counsel to nary oversight powers, the Supreme Court fidentiality of presidential communications present the issue to the president for his or held in Watkins v. United States that ‘‘[t]he would be stronger if a need to protect mili- her decision. Traditionally, this presentation power of the Congress to conduct investiga- tary, diplomatic, or sensitive national secu- involves a memorandum from the head of the tions is inherent in the legislative process. rity secrets is claimed.) agency that received the congressional re- That power is broad. It encompasses inquir- 291. Senate Select Comm. on Presidential quest explaining the information sought by ies concerning the administration of existing Campaign Activities v. Nixon, 498 F.2d 725, Congress, why the information is privileged, laws as well as proposed or possibly needed 730 (D.C. Cir. 1974). and the efforts that the agency has made to statutes. It includes surveys of defects in our 292. Id. at 731. date to accommodate the congressional re- social, economic or political system for the 293. Letter from Pat A. Cipollone to Nancy quest; a memorandum from the attorney purpose of enabling the Congress to remedy Pelosi, supra note 259, at 2. general evaluating the legal basis for a privi- them. It comprehends probes into depart- 294. See The Federalist No. 66, at 446 (Alex- lege assertion over the requested informa- ments of the Federal Government to expose ander Hamilton) (Jacob E. Cooke ed., 1961). tion, including whether the qualified privi- corruption, inefficiency or waste.’’) (The Framers created impeachment as an lege might be overcome in the balancing of

VerDate Sep 11 2014 04:33 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00044 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.107 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE February 27, 2020 CONGRESSIONAL RECORD — SENATE S1205 interests and needs; and the White House 327. Letter from Pat A. Cipollone, Counsel done what ‘The Times’ reported about the counsel’s recommendation to the president. to the President, The White House, to content of the Bolton manuscript, that Pending the president’s decision, the agency Jerrold Nadler, Chairman, H. Comm. on the would not constitute an impeachable offense. is directed to ask Congress to hold the re- Judiciary (Dec. 6, 2019). Let me repeat it. Nothing in the Bolton rev- quest in abeyance, and to explain that this is 328. Trial Memorandum of the United elations, even if true, would rise to the level simply to protect the president’s ability to States House of Representatives, supra note of an abuse of power or an impeachable of- assert the privilege and does not itself con- 66, at SMF 58. fense . . . You cannot turn conduct that is stitute a claim of privilege.’’) 329. 166 Cong. Rec. 12, S381–S382 (daily ed. not impeachable into impeachable conduct 303. 166 Cong. Rec. 16, S575 (daily ed. Jan. Jan. 21, 2020) (statement of Mr. Manager simply by using words like ‘quid pro quo’ ’’ 25, 2020) (Statement of Mr. Counsel Philbin). Schiff). and ‘personal benefit.’ ’’) 304. Trial Memorandum of President Don- 330. Claudia Grisales & Kelsey Snell, After 344. Ashley Parker & David E. Sanger, Don- ald J. Trump, supra note 25, at 75. Pressure, McConnell Makes Last-Minute ald Trump Calls on Russia to Find Hillary Clin- 305. Alison Durkee, Lev Parnas: Trump Changes to Impeachment Trial Procedure, NPR, ton’s Missing Emails, N.Y. Times, July 27, ‘‘Knew Exactly What Was Going On’’ in Jan. 20, 2020, https://www.npr.org/2020/01/20/ 2016, https://www.nytimes.com/2016/07/28/us/ Ukraine, Vanity Fair, Jan. 6, 2020, https:// 798007597/read-mcconnell-lays-out-plan-for- politics/donald-trump-russia-clinton- www.vanityfair.com/news/2020/01/lev-parnas- senate-impeachment-trial-procedure; See S. emails.html. maddow-ukraine-trump; Olivia Rubin & Soo Res. 483, 116th Cong. (2019). 345. 1 Mueller, supra note 60, at 5. (The Spe- Rin Kim, Giuliani’s Associate Lev Parnas 331. Claudia Grisales & Kelsey Snell, After cial Counsel’s investigation concluded that, Speaks Again: ‘It Was All About 2020.’, ABC Pressure, McConnell Makes Last-Minute ‘‘[t]he presidential campaign of Donald J. News, Jan. 17, 2020, https://abcnews.go.com/ Changes to Impeachment Trial Procedure, NPR, Trump . . . showed interest in WikiLeaks’s Politics/giulianis-associate-lev-parnas- Jan. 20, 2020, https://www.npr.org/2020/01/20/ releases of documents and welcomed their speaks-2020/story?id=68340258. 798007597/read-mcconnell-lays-out-plan-for- potential to damage candidate Clinton.’’) 306. Maggie Haberman & Michael S. senate-impeachment-trial-procedure. 346. Interview by George Stephanopoulos Schmidt, Trump Told Bolton to Help His 332. S. Res. 483, 116th Cong. (2019). with Donald Trump, President, United Ukraine Pressure Campaign, Book Says, N.Y. 333. Id. States of America, in Washington, D.C. Times, Jan. 31, 2020, https:// 334. See S. Amdt. 1284 to S. Res. 483, 116th (June 16, 2019). 347. Peter Baker & Eileen Sullivan, Trump www.nytimes.com/2020/01/31/us/politics/ Cong. (2020); S. Amdt. 1285 to S. Res. 483, Publicly Urges China to Investigate the Bidens, trump-bolton-ukraine.html. 116th Cong. (2020); S. Amdt. 1286 to S. Res. N.Y. Times, Oct. 3, 2019, https:// 307. Adam Edelman, Lev Parnas, the Indicted 483, 116th Cong. (2020); S. Amdt. 1287 to S. www.nytimes.com/2019/10/03/us/politics/ Associate of Giuliani, Tries to Attend Trump Im- Res. 483, 116th Cong. (2020); S. Amdt. 1288 to S. Res. 483, 116th Cong. (2020); S. Amdt. 1289 trump-china-bidens.html. peachment Trial, NBC News, Jan. 29, 2020, 348. See discussion at page 21. https://www.nbcnews.com/politics/trump-im- to S. Res. 483, 116th Cong. (2020); S. Amdt. 349. Donald J. Trump (@realDonaldTrump), peachment-inquiry/lev-parnas-indicted-asso- 1290 to S. Res. 483, 116th Cong. (2020); S. Twitter (Jan. 16, 2020. 3:39 PM), https://twit- ciate-giuliani-tries-attend-trump-impeach- Amdt. 1291 to S. Res. 483, 116th Cong. (2020); ter.com/realDonaldTrump/status/ ment-trial-n1125601; Nicholas Fandos & Mi- S. Amdt. 1292 to S. Res. 483, 116th Cong. 1217909231946477575?s=20. (President Trump chael S. Schmidt, Bolton is Willing to Testify (2020); S. Amdt. 1293 to S. Res. 483, 116th has repeatedly claimed that his call with in Trump Impeachment Trial, Raising Pressure Cong. (2020); S. Amdt. 1294 to S. Res. 483, President Zelensky on July 25 was perfect. for Witnesses, N.Y. Times, Jan. 6, 2020, https:// 116th Cong. (2020). (These amendments in- For example, on January 16, 2020 President www.nytimes.com/2020/01/06/us/politics/ cluded: subpoenas for relevant documents Trump tweeted, ‘‘I JUST GOT IMPEACHED bolton-testify-impeachment-trial.html. held by the White House related to meetings FOR MAKING A PERFECT PHONE CALL!’’) 308. Fred Barbash, Trump Denies Telling and calls between President Trump and the 350. The Federalist No. 68, at 459 (Alex- Bolton that Ukraine Aid was Tied to Investiga- President of Ukraine; subpoenas compelling ander Hamiltoni) (Jacob E. Cooke ed., 1961). tions, as Explosive Book Claiming Otherwise the Secretary of State, Acting Director of 351. Letter from John Adams to Thomas Leaks, Washington Post, Jan. 27, 2020, https:// the Office of Management and Budget, and Jefferson (Dec. 6, 1787). www.washingtonpost.com/nation/2020/01/27/ Secretary of Defense to produce documents 352. Ellen L Weintraub trump-bolton-ukraine/; Justin Wise, Trump and records related to the July 25 phone call (@EllenLWeintraub), Twitter (June 13, 2019, Again Denies Knowing Lev Parnas: ‘He’s a Con between President Trump and the Ukrainian 7:11 PM), https://twitter.com/ Man,’, The Hill, Jan. 22, 2020, https:// President and records related to the freezing EllenLWeintraub/status/1139309394968096768/ thehill.com/homenews/administration/479317- of assistance to Ukraine; and subpoenas for photo/1. (In response to President Trump’s trump-again-denies-knowing-lev-parnas-hes- the testimony of Acting Chief of Staff Mick statement to George Stephanopoulos that he a-conman. Mulvaney and Ambassador John Bolton, would consider taking information from a 309. Caitlin Oprysko, Trump Suggests He’d both of whom have significant firsthand foreign government on one of his political Invoke Executive Privilege to Block Bolton Tes- knowledge of the events that are the subject opponents, Ellen Weintraub, Chair, Federal timony, Politico, Jan. 10, 2020, https:// of this impeachment trial. Other amend- Election Commissioner, wrote, ‘‘Let me www.politico.com/news/2020/01/10/trump-john- ments sought to ensure that there would be make something 100% clear to the American bolton-testimony-097349. votes on motions to subpoena witnesses, pro- public and anyone running for public office: 310. Trial Memorandum of President Don- vide additional time to respond to motions, It is illegal for any person to solicit, accept, ald J. Trump, supra note 25, at 40. and require the Chief Justice to rule on mo- or receive anything of value from a foreign 311. Bowman, supra note 241, at 164–165. tions to subpoena witnesses and documents.) national in connection with a U.S. election. 312. H.R. Rep. No. 93–1305, at 6 (1974). 335. 166 Cong. Rec. 12, S385–S431 (Jan. 21, This is not a novel concept. Electoral inter- 313. U.S. Const. art. I, § 3, cl. 6. 2020). vention from foreign governments has been 314. Todd Garvey, Cong. Research Serv., 336. 166 Cong. Rec. 21, S766–S769 (daily ed. considered unacceptable since the beginning R45983, Congressional Access to Information Jan. 31, 2020). of our nation. Our Founding Fathers sounded in an Impeachment Investigation 21 (2019). 337. Id. the alarm about ‘foreign interference, in- 315. Comm. on Judiciary, U.S. House of 338. Nicholas Fandos, McConnell Says He trigue and influence.’ They knew that when Representatives v. McGahn, ll F. Supp. 3d Will Proceed on Impeachment Trial Without foreign governments seek to influence Amer- ll, No. 19-cv-2379 (KBJ) 57-58, 2019 WL Witness Deal, N.Y. Times, Jan. 7, 2020, https:// ican politics, it is always to advance their 6312011 (D.D.C. Nov. 25, 2019) (Ketanji Brown www.nytimes.com/2020/01/07/us/politics/im- own interests, not America’s.’’) Jackson, J.) peachment-trial-witnesses.html. Mr. CASEY. Mr. President, I ask 316. Id. at 59. 339. H.R. Rep. 116–346, at 20, 24 (2019). 317. 2 The Records of the Federal Conven- 340. Opinion Memorandum of United States unanimous consent that the text of a tion of 1787, supra note 12, at 65. Senator John F. Reed, supra note 38, at 4. more comprehensive version of my 318. Id. at 64. 341. Id. statement regarding the impeachment 319. Id. 342. 166 Cong. Rec. 19, S650–S651 (daily ed. trial of President Donald John Trump 320. Letter from Pat A. Cipollone to Nancy Jan. 29, 2020) (statement of Mr. Counsel be printed in the RECORD. Pelosi, supra note 259, at 4. Dershowitz). There being no objection, the mate- 321. Hebert v. State of La., 272 U.S. 312, 316– 343. 166 Cong. Rec. 17, S614 (daily ed. Jan. rial was ordered to be printed in the 317 (1926). 27, 2020) (statement of Mr. Counsel RECORD, as follows: 322. H.R. Rep. No. 105–795, at 25–26 (1998). Dershowitz). (In response to the report in the 323. H.R. Rep. No. 116–346, at 17–19 (2019). New York Times on January 26, 2020, that STATEMENT ON THE IMPEACHMENT OF 324. Staff of H. Comm on the Judiciary, the manuscript of a book by former National PRESIDENT DONALD JOHN TRUMP 93rd Cong., Impeachment Inquiry Procedures Security Adviser John Bolton contends that I. INTRODUCTION 1–2 (Comm. Print 1974). President Trump directly tied the freeze on Throughout this impeachment trial, I have 325. H.R. Rep. No. 116–266, at 9–11 (2019). security assistance for Ukraine to Ukraine often thought of an inscription above the 326. Letter from Jerrold Nadler, Chairman, agreeing to conduct investigations into the front door of the Finance Building in Harris- H. Comm. on the Judiciary, to Donald 2016 campaign and Biden/Burisma theories, burg, Pennsylvania from the 1930s: ‘‘All pub- Trump, President, United States of America defense counsel Alan Dershowitz argued that lic service is a trust, given in faith and ac- (Nov. 29, 2019). ‘‘if a President-any President-were to have cepted in honor.’’

VerDate Sep 11 2014 04:33 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00045 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.109 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE S1206 CONGRESSIONAL RECORD — SENATE February 27, 2020 This inscription helped me frame my own imperiled yet again by another example of ligence Community 17 and the bipartisan understanding of the evidence offered during President Trump’s shameful and dishonor- Senate Select Committee on Intelligence.18 this trial because I believe that President able conduct. In response to Republican Sen- The Mueller investigation did not find evi- Trump and every public official in America ators who have expressed concern about the dence that President Trump’s 2016 campaign must earn that trust every day. That sacred President’s ‘‘inappropriate’’ conduct but conspired or coordinated with the Russian trust is given to us ‘‘in faith’’ by virtue of have repeatedly refused to hold him account- government, but Special Counsel Mueller did our election. The question for the Presi- able, I must ask: What will it take? What ac- confirm that ‘‘the Russian government per- dent—and every official—is: Will we accept tion will finally be so objectionable, so inap- ceived it would benefit from a Trump presi- that ‘‘trust’’ by our honorable conduct? The propriate to break from this President? He dency and worked to secure that outcome, trust set forth in the inscription is an echo will not learn. He will not change. When con- and that the [Trump] Campaign expected it of Alexander Hamilton’s words in Federalist fronted with a choice between the national would benefit electorally from information No. 65, where he articulated the standard for interests and his personal political interests, stolen and released through Russian ef- impeachment as ‘‘offenses which proceed President Trump will always choose the lat- forts.’’ 19 For example, then-candidate Trump from the misconduct of public men, or, in ter. The Senate’s failure to hold him ac- declared during a public rally in July 2016: other words, from the abuse or violation of countable in this impeachment trial would ‘‘Russia, if you’re listening, I hope you’re some public trust.’’ 1 be a stain on American history. able to find the 30,000 emails that are miss- Much time has been devoted to why and After a thorough, careful review of all of ing’’ from then-candidate Hillary Clinton’s how we got here. Let us make no mistake the available evidence in this impeachment email server.20 Russian hackers targeted about this—we are here because of the Presi- trial, I have determined that House Man- Clinton’s personal server within hours of dent’s conduct. He solicited the interference agers have not only met, but exceeded, their Trump’s request.21 After the Mueller Report, of a foreign government in our next election burden of proof in this case. President in June 2019, President Trump was asked and demanded that same government an- Trump violated his duty as a public servant whether he would accept opposition research nounce an investigation of his political oppo- by corruptly abusing his power to solicit for- from a foreign government against his polit- nent, as well as an investigation into a de- eign interference in the 2020 election and by ical opponent. President Trump responded ‘‘I bunked conspiracy theory about the last repeatedly obstructing Congress’s constitu- think I’d take it.’’ 22 presidential election. tionally-based investigation into his con- Rather than embrace the Special Counsel’s President Trump has exhibited an unmis- duct. President Trump’s clearly established investigation and condemn Russian inter- takable pattern of behavior that indicates a pattern of conduct indicates he will continue ference in the election, President Trump re- predisposition toward autocratic leadership to be a ‘‘threat to national security and the portedly tried to undermine the investiga- and a willingness to embrace an agenda Constitution if allowed to remain in office.’’ 8 tion by calling it a ‘‘witch hunt’’ 23 and a based on foreign propaganda, directly under- For these reasons, I will vote ‘‘guilty’’ on ‘‘hoax.’’ 24 In fact, in Volume II of his report, mining the national interests of the United both Article I and Article II. Special Counsel Mueller detailed the Presi- 2 States. The world watched President Trump II. PROCEDURAL HISTORY dent’s numerous efforts to obstruct the Spe- stand next to Russian President Vladimir Before discussing the facts of this case, it cial Counsel’s investigation into Russian in- 3 Putin in Helsinki, Finland in July 2018. is important to address the Senate trial terference and his attempts to remove the When President Trump was asked whether itself. To ensure a full and fair trial for all Special Counsel in order to end the inves- he believed President Putin or his intel- parties, Senate Democrats repeatedly called tigation. The Special Counsel identified ten ligence agencies—all of which definitively for relevant witnesses and relevant docu- separate episodes of potential obstruction of concluded that Russia interfered in the 2016 ments to be subpoenaed during this trial in justice including, but not limited to: (1) 4 election —President Trump responded: ‘‘My the Senate.9 The testimonial and documen- President Trump firing former FBI Director people came to me . . . [and] said they think tary evidence would supplement an already James Comey; 25 (2) President Trump at- it’s Russia. I have President Putin. He just substantial record presented by the House tempting to fire Special Counsel Mueller; 26 said it’s not Russia. I will say this: I don’t Managers and ensure that this was a fair and (3) President Trump requesting his 5 see any reason why it would be.’’ trial for all parties involved. Senate Repub- White House Counsel lie and publically deny After this press conference and despite his licans refused to allow any witnesses and that President Trump tried to fire Special attempts to retract his comments, President documents.10 Counsel Mueller.27 Trump faced widespread and bipartisan con- Seventy-five percent of Americans sup- Neither Special Counsel Mueller nor Attor- demnation. Republican members of Congress ported calling witnesses during his trial.11 ney General William Barr charged President called his performance ‘‘troubling,’’ ‘‘a step Unfortunately, President Trump has been Trump with a crime for the actions detailed backwards,’’ ‘‘shameful, ‘‘untenable,’’ ‘‘bi- calling the shots and dictating the Repub- in Special Counsel Mueller’s report,28 in part 6 zarre and flat-out wrong.’’ However, only lican approach to this trial.12 This is the because of a controversial Office of Legal Senator John McCain offered a forceful re- third Presidential impeachment trial in our Counsel opinion indicating that a sitting buke of President Trump: country’s history, and it is the only one to President cannot be indicted for a crime.29 Today’s press conference in Helsinki was be completed without calling a single wit- However, over a thousand former federal one of the most disgraceful performances by ness.13 In fact, every completed impeach- prosecutors, who served under Republican an American president in memory. The dam- ment trial in history has included new wit- and Democratic administrations, issued a age inflicted by President Trump’s naivete´, nesses that were not even originally inter- statement shortly after the release of the egotism, false equivalence, and sympathy for viewed in the House of Representatives.14 Special Counsel’s report that stated, in part, autocrats is difficult to calculate. By blocking relevant witnesses and rel- as follows: No prior president has ever abased himself evant documents, Senate Republicans have Each of us believes that the conduct of more abjectly before a tyrant. Not only did denied the American people the full and fair President Trump described in Special Coun- President Trump fail to speak the truth trial they deserve. It is clear that this pro- sel Robert Mueller’s report would, in the about an adversary; but speaking for Amer- ceeding was rigged from the start to protect case of any other person not covered by the ica to the world, our president failed to de- President Trump rather than to hear all of Office of Legal Counsel policy against indict- fend all that makes us who we are—a repub- the facts. ing a sitting President, result in multiple lic of free people dedicated to the cause of 30 III. MATERIAL FACTS felony charges for obstruction of justice. liberty at home and abroad. American presi- After releasing his report in April, Special dents must be the champions of that cause if Special Counsel Mueller & Russian Interference in the 2016 Presidential Election Counsel Mueller testified in front of the it is to succeed. Americans are waiting and House Judiciary Committee and the House To fully understand the facts established hoping for President Trump to embrace that Intelligence Committee on July 24, 2019.31 by the House Managers in this case, it is nec- sacred responsibility. One can only hope During his testimony, Special Counsel 7 essary to first understand the context in they are not waiting totally in vain. Mueller confirmed that Russia was still en- Over a year and a half later, the Presi- which President Trump engaged in this be- gaging in ongoing efforts to attack future dent’s pattern of conduct has made it clear. havior. In May 2017, Special Counsel Robert elections and warned that the United States Just as Senator McCain feared, Americans Mueller was appointed to investigate ‘‘ ‘the must ‘‘use the full resources that we have to have waited in vain for President Trump to Russian government’s efforts to interfere in address this’’ interference.32 On July 25, one embrace—or even understand—his duties as the 2016 presidential election,’ including any day after Special Counsel Mueller testified, a public servant. This President has not and links or coordination between the Russian President Trump spoke on the phone with never will be faithful to the ‘‘sacred respon- government and individuals associated with the newly-elected President of Ukraine, sibility’’ that he holds as President of the the Trump Campaign.’’ 15 Special Counsel President Volodymyr Zelensky.33 Unknown United States, nor will he ever truly honor Mueller released his comprehensive report in at the time, this phone call would soon set the trust that the people placed in him. April 2019, which established in meticulous off the comprehensive investigation leading Besides Senator McCain, Republican Sen- detail that Russian President Vladimir to President Trump’s impeachment and the ators failed to fully confront the President Putin personally directed an ongoing and current trial in the Senate. when he chose the word of a former KGB systemic Russian attack in the 2016 presi- agent over the United States Intelligence dential election in the United States.16 Ukraine Community. For this reason, it is Special Counsel Mueller’s conclusions were On April 21, 2019, several months before unsurprising that our Nation has found itself also confirmed by the United States Intel- Special Counsel Mueller’s public testimony,

VerDate Sep 11 2014 04:33 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00046 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.020 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE February 27, 2020 CONGRESSIONAL RECORD — SENATE S1207 Volodymyr Zelensky was elected President delegation because that was not what Mr. not give a [expletive] about Ukraine’’ and he of Ukraine and later that day, President Giuliani had told him.52 The President also only cared only about ‘‘big stuff,’’ meaning Trump called him to congratulate him on his reiterated that Ukraine ‘‘tried to take me ‘‘ ‘the Biden investigation’ that Mr. Giuliani victory.34 On that call, President Trump ex- down’’ during the 2016 election, confirming was pushing.’’ 71 tended a future invitation to the White that he still believed the conspiracy theory Around that time, the Ukrainian govern- House and he also promised that he would that Ukraine, not Russia, was actually re- ment also became aware that President send a ‘‘very, very high level’’ representative sponsible for 2016 election interference.53 Trump was withholding military aid.72 On from the United States to attend President President Trump directed Ambassador August 12, Ambassadors Volker and Zelensky’s inauguration.35 Sondland, Secretary Perry and Ambassador Sondland, with consultation from Mr. Two days after President Trump’s call Volker to ‘‘talk to Rudy’’ and coordinate en- Giuliani, edited a draft statement for Presi- with President Zelensky, on April 23, media gagement with the Ukraine government.54 dent Zelensky to publically release that in- reports confirmed that former Vice Presi- Despite President Trump’s misplaced con- cluded explicit references to ‘‘Burisma and dent Joe Biden would enter the 2020 presi- cerns about Ukrainian conspiracy theories, the 2016 U.S. elections.’’ 73 On that same day, dential race.36 Around this time, the Presi- in May 2019, the Department of Defense a whistleblower filed a complaint with the dent’s personal attorney, Rudy Giuliani, was (DOD) and the State Department certified Intelligence Community Inspector General leading a smear campaign to tarnish and re- that Ukraine had ‘‘taken substantial ac- expressing concerns about President Trump’s move then-U.S. ambassador to Ukraine, tions’’ to decrease corruption.55 This was im- phone call with President Zelensky on July Marie Yovanovitch, a respected diplomat portant because it was a necessary require- 25.74 known for advancing the United States’ anti- ment in order for DOD to release $250 million Ukraine ultimately did not release the corruption efforts abroad.37 The smear cam- in Ukrainian military assistance that had statement regarding investigations and no paign was also advanced by two ‘‘corrupt been appropriated and authorized by Con- further action was taken regarding a White 75 former prosecutors’’—Mr. Lutsenko and Mr. gress.56 Congress had also appropriated and House meeting. Furthermore, there were increasing concerns among national security Shokin—in Ukraine.38 It was widely con- authorized another $141 million to be admin- officials regarding President Trump’s hold firmed that the corrupt Ukraine prosecutors istered by the State Department for security on military aid, which many began to under- were seeking ‘‘revenge against’’ Ambassador assistance to Ukraine.57 stand was meant to pressure Ukraine too.76 Yovanovitch for exposing their misconduct.39 However, by July 12, the President had or- Ambassador Sondland testified that Presi- On the day after the media reported that dered a block on all military and security as- dent Trump’s effort to condition release of former Vice President Biden was entering sistance for Ukraine against overwhelming the security assistance on Ukraine announc- the presidential race, President Trump re- recommendations from across the Executive ing investigations was as clear as ‘‘two plus called Ambassador Yovanovitch from her po- Branch and strong bipartisan support for the two equals four.’’ 77 40 aid.58 The hold continued throughout August sition in Ukraine. On September 7, President Trump and Am- in violation of the Impoundment Control Act Mr. Lutsenko and Mr. Giuliani both pro- bassador Sondland spoke on the telephone of 1974.59 The President did not initially give moted two conspiracy theories that have and Ambassador Sondland explained that 41 a reason for the hold, although by Sep- been pursued by President Trump. One of President told him ‘‘there was no quid pro tember, the President claimed that the hold the conspiracy theories alleged that Ukraine quo, but President Zelensky must announce was because he was concerned about corrup- hacked a Democratic National Committee the opening of the investigations and he tion in Ukraine and burden-sharing for (DNC) server in 2016 in order to frame Russia should want to do it.’’ 78 Shortly after, on for election interference and help the Clin- Ukrainian assistance among European al- September 9, Ambassador Taylor texted Am- 42 60 ton Campaign. The other theory alleged lies. bassadors Sondland and Volker and explic- Throughout this time period, it also be- that former Vice President Biden coerced the itly said, ‘‘I think it’s crazy to withhold se- came clear that President Trump was with- Ukrainian government into firing Mr. curity assistance for help with a political holding the White House meeting that he Shokin to ‘‘prevent an investigation into campaign.’’ 79 On that same day, the Intel- promised President Zelensky during their Burisma Holdings, a Ukrainian energy com- ligence Community Inspector General noti- April 21 phone call.61 Ambassador Taylor, pany for which Vice President Biden’s son, fied Congress of the August 12 whistleblower 43 Ambassador Yovanovitch’s replacement in Hunter, served as a board member.’’ Both complaint regarding President Trump’s July Ukraine, pushed for the White House meet- theories have been criticized and debunked 25 phone call with President Zelensky.80 by officials in the Trump Administration.44 ing, but he learned that the meeting was Two days later, President Trump unexpect- On May 3, 2019, shortly after President conditioned explicitly on Ukraine publically edly released his hold on Ukraine’s security Zelensky’s election, President Trump and announcing investigations into the 2016 elec- assistance.81 Since President Trump lifted President Putin spoke by telephone and dis- tion and Burisma.62 Ambassador Sondland the hold, however, he has continued to press cussed, in part, the so-called ‘‘Russian was unequivocal in his description during his Ukraine, and even other foreign countries, to Hoax,’’ referring to Special Counsel testimony: ‘‘Was there a quid pro quo? As I open investigations into his political rival.82 Mueller’s investigation.45 During that con- testified previously with regard to the re- For example, on October 3, President Trump versation, President Putin reportedly spoke quested White House call and the White stated as follows on the White House lawn: negatively about Ukraine, suggesting that it House meeting, the answer is yes.’’ 63 Well I would think that if they [Ukraine] was corrupt and that President Zelensky was After a July 10 meeting, Dr. Fiona Hill, were honest about it, they’d start a major in- ‘‘in the thrall of oligarchs.’’ 46 A Washington former Senior Director of European and Rus- vestigation into the Bidens. It’s a very sim- Post article, published on December 19, 2019, sian Affairs at the National Security Coun- ple answer. They should investigate the reported that a senior White House official cil, informed then-National Security Advisor Bidens. . . . Likewise, China should start an even indicated that President Trump sug- John Bolton that Ambassador Sondland reit- investigation into the Bidens because what gested that ‘‘he knew Ukraine was the real erated the quid pro quo to Ukrainian offi- happened in China is just about as bad as culprit [of 2016 election interference] because cials during a meeting at the White House.64 what happened with Ukraine. So, I would say ‘Putin told me.’ ’’ 47 Dr. Hill testified that Mr. Bolton advised her that President Zelensky, if it were me, I On May 9, the New York Times reported to ‘‘go and tell [the NSC Legal Advisor] that would recommend that they start an inves- that the President’s personal attorney, Mr. I am not part of whatever drug deal tigation into the Bidens.83 Giuliani, would be traveling to Ukraine to Sondland and Mulvaney are cooking up on To date, President Zelensky still has not pressure the government to open investiga- this.’’ 65 Over the next two weeks, Mr. met with President Trump at the White tions into the conspiracy theories about Giuliani coordinated with Ambassadors House. Burisma and the 2016 election.48 Mr. Giuliani Sondland and Volker to arrange a phone call Congressional Investigations specifically acknowledged ‘‘[t]his isn’t for- between President Trump and President As noted above, Congress was notified on eign policy’’ but that the investigations Zelensky for President Zelensky to inform September 9 of the August 12 whistleblower ‘‘will be very, very helpful to my client.’’ 49 President Trump that he would announce complaint regarding President Trump’s Around May 13, President Trump ordered the investigations.66 phone call with Ukraine.84 Speaker Nancy Vice President Pence not to attend President On July 25, President Trump spoke on the Pelosi announced on September 24 that the 67 Zelensky’s inauguration and sent a lower- phone with President Zelensky. At one House would move forward with an official ranking delegation, despite his promise to point, President Zelensky thanked President impeachment inquiry.85 President Zelensky to send a ‘‘very, very Trump for the ‘‘great support’’ in military On September 9 and September 24, three high level’’ representative.50 This delegation assistance and indicated that Ukraine would House Committee sent letters to White included Secretary of Energy Rick Perry, be interested in purchasing more Javelin House Counsel Pat Cipollone asking for six Ambassador to the European Union Gordon anti-tank missiles soon.68 In response, imme- specific categories of documents related to Sondland, Special Representative for diately after the Javelin reference, President the Ukraine investigation.86 The White Ukraine Negotiations Ambassador Kurt Trump stated as follows: ‘‘I would like you House did not respond, and as a result, the Volker and NSC Director for Ukraine Lieu- to do us a favor though.’’ 69 President Trump Committees issued a subpoena to Acting tenant Colonel Alexander Vindman.51 brought up the investigations that he sought White House Chief of Staff, Mick On May 23, despite positive reports from into the Ukrainian election interference and Mulvaney.87 the delegation regarding President Biden conspiracy theories.70 After the call, On October 8, Mr. Cipollone responded and Zelensky’s effort to combat corruption, Ambassador Sondland informed a State De- indicated that ‘‘President Trump cannot per- President Trump said he ‘‘didn’t believe’’ the partment aide that President Trump ‘‘did mit his Administration to participate in this

VerDate Sep 11 2014 04:33 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00047 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.022 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE S1208 CONGRESSIONAL RECORD — SENATE February 27, 2020 partisan inquiry under these cir- So, the question is: Why? Was President a Democratic National Committee server.115 cumstances.’’ 88 The letter called the inquiry Trump acting corruptly to advance his own This theory is not supported by any evi- ‘‘constitutionally invalid’’ even though the political interests, or was he, as his defense dence. The U.S. Intelligence Community, the Constitution grants the House the sole power attorneys would have us believe, deeply con- Senate Select Committee on Intelligence and of impeachment.89 The letter made reference cerned about ongoing ‘‘corruption’’ in Special Counsel Robert Mueller all came to to ‘‘long-established Executive Branch con- Ukraine and ‘‘burden-sharing?’’ 103 The facts the conclusion that Russia, not Ukraine, fidentiality interests and privileges,’’ 90 al- clearly established that President Trump interfered in the 2016 election.116 Dr. Fiona though President Trump has never specifi- was acting corruptly to further his own po- Hill called this Ukraine theory a ‘‘fictional cally asserted an executive privilege over a litical interests. narrative that is being perpetrated and prop- single piece of information related to the in- First, while the President’s defense law- agated by the Russian security services’’ to quiry. yers have rightly argued that the President raise doubts about Russia’s own culpability As a result of President Trump’s blanket ‘‘defines foreign policy,’’ 104 the facts do not and to harm the relationship between the directive, every Executive Branch agency support that the President’s actions related United States and Ukraine.117 President that received an impeachment inquiry re- to Ukraine were based on ‘‘legitimate con- Trump’s former Homeland Security Advisor, quest or subpoena has not complied with the cerns’’ regarding corruption and burden- Tom Bossert, also indicated that the request.91 Specifically, the Executive Branch sharing.105 Also, if the President was so con- Ukraine theory was ‘‘not only a conspiracy has not produced a single document or per- cerned about corruption in Ukraine, why did theory, it is completely debunked.’’ 118 Pur- mitted a single witness to testify in response he dismiss one of the Nation’s best corrup- suing such a clearly debunked conspiracy to a subpoena.92 The only witnesses who did tion-fighting diplomats, Ambassador Marie theory only served to benefit President testify or submit documents did so in direct Yovanovitch? 106 Trump, and Putin, by raising doubts regard- violation of the White House’s directive.93 Second, the President was utilizing his per- ing Russia’s own election interference and sonal attorney, Mr. Giuliani, to coordinate IV. ARTICLES OF IMPEACHMENT its preference for President Trump’s election the announcement of investigations in in 2016. As we know, Article I, Section 2, Clause 5 Ukraine. Mr. Giuliani explicitly said that he of the Constitution states that ‘‘[t]he Senate Based on this evidence, it is clear that was not engaged in foreign policy, but was President Trump acted corruptly by condi- shall have the sole Power to try all Impeach- acting on behalf of President Trump in his 94 tioning the release of military aid and a ments.’’ As a Senator reviewing this case, ‘‘personal capacity.’’ 107 The State Depart- I have based my assessment of the evidence White House meeting on Ukraine announcing ment also released a statement in August investigations into his political opponent. on the following two questions: emphasizing that Mr. Giuliani is a private (1) Did the president do what he is charged Obstruction of Congress citizen acting in his personal capacity and with in the Articles?; and ‘‘does not speak on behalf of the U.S. govern- Under the second Article of Impeachment, (2) If so, is that action an impeachable of- ment.’’ 108 Accordingly, one cannot reason- the House charged that President Trump has fense that warrants removal from office? ably argue that the investigations pursued obstructed Congress by directing the ‘‘the Abuse of Power by Mr. Giuliani were related to ‘‘legitimate’’ unprecedented, categorical, and indiscrimi- In the first Article of Impeachment, the foreign policy when they were coordinated nate defiance of subpoenas issued by the House of Representatives charged President by the President’s personal attorney for the House of Representatives pursuant to its 119 Trump with abusing his power as President President’s personal benefit. ‘sole Power of Impeachment.’ ’’ I have con- by corruptly ‘‘soliciting the Government of Third, it was the prior practice of the Ad- cluded that the House has presented substan- Ukraine to publicly announce investigations ministration to release aid to Ukraine with- tial evidence to prove the allegations in this that would benefit his reelection, harm the out delay or regard to alleged corruption and Article. election prospects of a political opponent, burden-sharing concerns. Both of these as- On October 8, 2019, during the House im- and influence the 2020 United States Presi- serted concerns were an after-the-fact dis- peachment inquiry, the White House Counsel dential election to his advantage.’’ 95 In this traction from the truth. The Trump Admin- wrote that ‘‘President Trump cannot permit case, I have found that the House has pre- istration disbursed—without question—ap- his Administration to participate in this par- 120 sented substantial, persuasive evidence to proximately $511 million and $359 million to tisan inquiry under these circumstances.’’ prove the allegations in Article I. Ukraine in 2017 and 2018, respectively.109 The As a result of President Trump’s directives, First, there is no dispute that the White only thing that changed in 2019 was that the House did not receive a ‘‘single docu- House directly withheld $391 million dollars former Vice President Joe Biden announced ment’’ from the White House, the Vice Presi- in military aid from Ukraine.96 The Office of that he was running for President. dent, OMB, the Department of State, DOD or Management and Budget (OMB) held the aid, Finally, the proposed investigations into the Department of Energy—despite 71 re- at the direction of the President, despite the Burisma and 2016 election interference were quests and demands.121 Furthermore, the Department of Defense and the State Depart- debunked conspiracy theories that would only witnesses who testified or produced doc- ment certifying that Ukraine was taking have only benefited one person—Donald uments did so in opposition to the Presi- 122 necessary measures to reduce corruption.97 Trump. Regarding Burisma, President dent’s directive. Furthermore, all agencies—except OMB— Trump claimed that former Vice President President Trump did not assert a single strongly supported the release of the aid be- Biden corruptly forced Ukraine to fire then- claim of ‘‘executive privilege’’ over any spe- cause it was in the national interest of the Prosecutor General Shokin to avoid further cific document or piece of testimony during 123 United States.98 investigation into Burisma.110 The truth is this inquiry. Rather, he issued a blanket Nor is there dispute that President Trump that Vice President Biden was actually pur- directive that completely denied the con- withheld a White House meeting with Presi- suing Mr. Shokin’s termination—with bipar- stitutional oversight responsibilities of the 124 dent Zelensky. On his April 21 phone call, tisan and international support—because Mr. House. Based on this evidence, it is clear President Trump explicitly invited President Shokin was a corrupt and ineffective pros- that President Trump has obstructed Con- Zelensky to the White House in the future.99 ecutor.111 In fact, Mr. Shokin was not ac- gress. However, after former Vice President Joe tively investigating Burisma and his re- V. IMPEACHABLE CONDUCT Biden announced his candidacy for President moval would have made it more likely—not Having established that the President did, just a few days later, President Zelensky— less—that Burisma would be investigated in in fact, engage in the conduct alleged in despite numerous efforts—still has not met the future.112 these Articles—I now turn to whether this with President Trump at the White House. Furthermore, even if we were to accept conduct warrants removal from office. Second, the evidence establishes that that President Trump had legitimate inter- During the Constitutional Convention of President Trump conditioned the aid and the ests regarding alleged corruption in Ukraine, 1787, our Founders grappled significantly White House meeting on Ukraine announcing he certainly should not have asked a foreign with how to elect the Executive, but they investigations into Burisma and the 2016 government to announce the investigation. also debated how to hold the Executive ac- election. In the July 25 phone call, President Rather, he should have gone through official countable. While some delegates believed Trump asked President Zelensky to ‘‘do us a channels and asked the Department of Jus- that the President should only be held ac- favor though’’ and referenced the 2016 elec- tice to look into the allegations.113 Ambas- countable at the ballot box through elec- tion and Burisma investigations imme- sador Sondland indicated that President tions, others voiced the logical concern that diately after President Zelensky brought up Trump was only concerned about the an- ‘‘if [the President] be not impeachable whilst military assistance.100 nouncement of investigations—he was not in office, he will spare no efforts or means Related to the White House meeting, Am- concerned with the actual completion of in- whatever to get himself re-elected.’’ 125 After bassador Sondland could not have been more vestigations.114 President Trump was not ac- much debate, the Convention voted that the clear when he testified that ‘‘yes,’’ there was tually interested in corruption in Ukraine, Executive shall be ‘‘removable on impeach- a quid pro quid conditioning a White House but was only concerned with harming a po- ments’’ 126 and later confirmed the grounds meeting with Ukraine announcing investiga- litical opponent with the announcement of for impeachment included ‘‘Treason, bribery tions into the Bidens and Burisma.101 He fur- an investigation. and other high crimes and mis- ther testified that the conditioning of the Regarding Ukrainian election interference, demeanors.’’ 127 White House meeting and military assist- President Trump has suggested that Ukraine ‘‘High Crimes and Misdemeanors’’ is left ance on Ukraine publically announcing in- attempted to help the Hillary Clinton cam- ambiguous in the Constitution. At the time vestigations was as clear as ‘‘2+2=4.’’ 102 paign in 2016 by framing Russia and hacking of the drafting, the Founders’ understanding

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of ‘‘high Crimes and Misdemeanors’’ was in- abuses of power through the impeachment RUSSIAN INTERFERENCE IN THE 2016 PRESI- formed by centuries of English legal prece- process. This Senate trial is not simply DENTIAL ELECTION 1 (2019) [hereinafter dent.128 This understanding was reflected in about grave presidential abuse of power, it is MUELLER REPORT]. Federalist No. 65, written by Alexander Ham- about our Democracy, the sanctity of our 16. Id. at 1–2. ilton, which explained that impeachment elections and the very values that the 17. U.S. INTELLIGENCE CMTY., supra note 4, should stem from an ‘‘abuse or violation of Founders agreed should guide our Nation. at ii. some public trust.’’ 129 Noted historian Ron The inscription—‘‘[a]ll public service is a 18. 2 SELECT COMM. ON INTELLIGENCE, U.S. Chernow explained that Hamilton’s under- trust, given in faith and accepted in SENATE, 116TH CONG. REPORT ON RUSSIAN AC- standing of impeachment should ‘‘count honor’’—serves as a reminder to us all of the TIVE MEASURES CAMPAIGNS AND INTER- heavily because he was the foremost pro- bedrock principles of our republic. We must FERENCE IN THE 2016 U.S. ELECTION: RUSSIA’S ponent of a robust presidency, yet he also hold those accountable who violate this sa- USE OF SOCIAL MEDIA 3–4 (Comm. Print 2019). harbored an abiding fear that a brazen dema- cred trust. President Trump dishonored that 19. I MUELLER REPORT, supra note 15, at 5. gogue could seize the office.’’ 130 Informed by public trust given to him by abusing his 20. Id. at 49. this history, Congress has consistently inter- power for personal, political gain. In order to 21. Id. 22. preted ‘‘high Crimes and Misdemeanors’’ prevent continuing interference in our up- Transcript: ABC News’ George Stephan- broadly to mean ‘‘serious violations of the coming election and blatant obstruction of opoulos’ Exclusive Interview with President Trump, ABC NEWS (June 16, 2019), https:// public trust.’’ 131 Congress, the Senate should find him guilty The President’s defense lawyers argued under both Articles. abcnews.go.com/Politics/transcript-abc- news-george-stephanopoulos-exclusive-inter- that impeachment requires a violation of a ENDNOTES criminal statute to be constitutionally view-president/story?id=63749144. 1. THE FEDERALIST NO. 65 (Alexander Ham- 23. @realDonaldTrump, TWITTER (July 29, valid.132 This argument is not supported by ilton). 2018, 3:35 PM), https://twitter.com/ historical precedent, credible scholarship or 2. Vivian Salama & Julie Pace, Trump Has realdonaldtrump/status/1023653191974625280; our common sense about the sacred notion of Embraced Autocratic Leaders Without Hesi- see also Olivia Paschal, Trump’s Tweets and the public trust.133 When applying the accu- tation, PBS (Apr. 19, 2017), https:// the Creation of ‘Illusory Truth,’ ATLANTIC rate Hamiltonian standard for impeach- www.pbs.org/newshour/world/trump-em- (Aug. 3, 2018), https://www.theatlantic.com/ ment—an ‘‘abuse or violation of some public braced-autocratic-leaders-without-hesi- politics/archive/2018/08/how-trumps-witch- trust’’—it is clear that President Trump’s tation. See also Michael S. Schmidt & hunt-tweets-create-an-illusory-truth/566693/ conduct exceeds that standard. Any effort to Maggie Haberman, Bolton Was Concerned (explaining that President Trump referred to corrupt an election must be met with a swift That Trump Did Favors for Autocratic Lead- the Mueller investigation as a ‘‘witch hunt’’ measure of accountability as provided for ers, Book Says, N.Y. TIMES (Jan. 27, 2020), no less than 84 times between January and under the impeachment clause in the Con- https://www.nytimes.com/2020/01/27/us/poli- August 2018). stitution. There is no other remedy to con- tics/john-bolton-trump-book-barr.html (ex- 24. @realDonaldTrump, TWITTER (Aug. 1, strain a President who has acted, time and plaining that President Trump’s former Na- 2018, 3:35 PM), https://twitter.com/ again, to advance his personal interests over tional Security Advisor, John Bolton, was realdonaldtrump/status/1024656465158721536. those of the Nation. concerned that ‘‘President Trump was effec- 25. II MUELLER REPORT, supra note 15, at Furthermore, since his candidacy, Presi- tively granting personal favors to . . . auto- 62–64. dent Trump has engaged in substantial and cratic leaders’’). 26. Id. at 77–90. ongoing efforts to solicit foreign interference 3. Transcript: Trump and Putin’s Joint Press 27. Id. at 113–20. in our elections. As detailed in Special Coun- Conference, NPR (July 16, 2018) [hereinafter 28. Oversight of the Report on the Investiga- sel Mueller’s report, the Trump campaign Helsinki Transcript], https://www.npr.org/ tion Into Russian Interference in the 2016 Presi- routinely welcomed Russian interference in 2018/07/16/629462401/transcript-president- dential Election: Former Special Counsel Robert the 2016 presidential election because they trump-and-russian-president-putins-joint- S. Mueller, III: Hearing Before the H.R. Comm. ‘‘expected [the Campaign] would benefit press-conference. on the Judiciary, 116th Cong. 6 (2019) [herein- electorally from information stolen and re- 4. U.S. INTELLIGENCE CMTY., ICA 2017–01D, after Mueller Hearing I] (statement of Robert leased through Russian efforts.’’ 134 As an il- ASSESSING RUSSIAN ACTIVITIES AND INTEN- S. Mueller, III, Special Counsel); Letter from lustration of just how brazen President TIONS IN RECENT US ELECTIONS ii (2017). the Honorable William Barr, Att’y Gen., U.S. Trump has become in his conduct, his July 5. Helsinki Transcript, supra note 3. Dep’t of Justice, to Chairman Lindsay Gra- 25 phone call with President Zelensky oc- 6. How Republican Lawmakers Responded to ham, S. Comm. on the Judiciary, et al. (Mar. curred just one day after Special Counsel Trump’s Russian Meddling Denial, N.Y. TIMES 24, 2019), https://www.justice.gov/ag/page/file/ Mueller testified in Congress, where he (July 17, 2018), https://www.nytimes.com/ 1147981/download. warned of the ongoing threat of foreign in- interactive/2018/07/16/us/politics/republicans- 29. A Sitting President’s Amenability to In- terference in elections.135 As the Washington trump-putin-russia-reaction.html. dictment and Criminal Prosecution, 24 Op. Post reported on September 21 in a story 7. Niels Lesniewski, ‘Pathetic Rout,’ ‘Trag- O.L.C. 222 (2000), https://www.justice.gov/ written by three reporters who have covered ic Mistake’ and ‘Painful’—John McCain Holds sites/default/files/olc/opinions/2000/10/31/op- the President for several years, the Presi- Little Back in Describing Helsinki, ROLLCALL olc-v024-p0222—0.pdf. dent’s conduct on the Ukraine call revealed (July 16, 2018), https://www.rollcall.com/news/ 30. DOJ Alumni Statement, Statement by ‘‘a president convinced of his own invinci- politics/mccain-calls-trump-performance- Former Federal Prosecutors, MEDIUM (May 6, bility—apparently willing and even eager to with-putin-a-pathetic-rout. 2019), https://medium.com/@dojalumni/state- wield the vast powers of the United States to 8. H.R. Res. 755, 116th Cong. art. I (2019). ment-by-former-federal-prosecutors- taint a political foe and confident that no 9 See 166 CONG. REC. S438–41 (daily ed. Jan. 8ab7691c2aa1. one could hold him back.’’ 136 21, 2020) (identifying the amendments pro- 31. Mueller Hearing I, supra note 28; Former The President’s blanket obstruction of posed by Minority Leader Schumer seeking Special Counsel Robert S. Mueller III on the In- Congress also substantially imperils our con- documents and witnesses). vestigation into Russian Interference in the 2016 stitutional system of checks and balances. 10. See id. at S394–431 (detailing the amend- Presidential Election: Hearing Before the H.R. Not only has this President taken the un- ments and roll call votes on the amend- Perm. Select Comm. on Intelligence, 116th Cong. precedented step of issuing an outright re- ments). (2019) [hereinafter Mueller Hearing II]. fusal to cooperate with Congressional over- 11. Press Release, Quinnipiac Univ. Poll, 32. Mueller Hearing II, supra note 31, at 75. sight in this case, but President Trump has 75% Of Voters Say Allow Witnesses In Sen- 33. H.R. PERMANENT SELECT COMM. ON IN- exhibited an ongoing hostility to oversight ate Impeachment Trial, Quinnipiac Univer- TELLIGENCE, THE TRUMP-UKRAINE IMPEACH- of his administration. As detailed in Special sity National Poll Finds; 53% Say President MENT INQUIRY REPORT, H.R. REP. NO. 116–335, Counsel Mueller’s report, President Trump Trump Not Telling Truth About Ukraine at 2–3 (2019) [hereinafter HPSCI REPORT]. engaged in ten distinct efforts to obstruct (Jan. 28, 2020), https://poll.qu.edu/national/re- 34. Id. at 39. and curtail investigations into his conduct lease-detail?ReleaseID=3654. 35. Id. and Russia’s interference in the 2016 elec- 12. Sheryl Gay Stolberg, McConnell, Coordi- 36 Molly Nagle, Former Vice President Joe tion.137 It is clear that this President has en- nating With White House, Lays Plans for Im- Biden to Announce He’s Entering the 2020 Race gaged in an ongoing pattern of behavior that peachment Trial, N.Y. TIMES (Dec. 17, 2019), Thursday Morning, ABC NEWS (Apr. 23, 2019), threatens to diminish any meaningful future https://www.nytimes.com/2019/12/13/us/poli- https://abcnews.go.com/Politics/vice-presi- oversight of the Executive Branch. tics/mcconnell-white-house-impeachment- dent-joe-biden-announce-hes-entering-2020/ Given the President’s ongoing pattern of trial.html. story?id=62558852. 13. Press Release, Citizens For Responsi- corrupt behavior, especially as it relates to 37. HPSCI REPORT, supra note 33, at 25. bility & Ethics in Washington, New Analysis: the next election, I find him ‘‘guilty’’ under 38. Id. at 28. Every Impeachment Trial Has Had New Wit- both Articles of Impeachment. 39. Id. nesses (Jan. 28, 2020), https:// 40. Id. at 26–27. VI. CONCLUSION www.citizensforethics.org/press-release/new- 41. Id. at 29. Our Founders had the foresight to ensure witnesses-impeachment/. 42. Id. at 29–30. that the power of the President was not un- 14. Id. 43. Id. limited and that Congress could—if nec- 15. I ROBERT S. MUELLER, III, U.S. DEP’TOF 44. Id. at 88–89. Related to the Ukraine essary—hold the Executive accountable for JUSTICE, REPORT ON THE INVESTIGATION INTO election interference theory, President

VerDate Sep 11 2014 04:33 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00049 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.027 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE S1210 CONGRESSIONAL RECORD — SENATE February 27, 2020 Trump’s former Homeland Security Advisor, 63. Id. at 82. 126. Id. at 69 (Madison). Tom Bossert, publicly stated that it was 64. Id. at 76–78. 127. Id. at 550 (Madison). See also U.S. ‘‘not only a conspiracy theory, it is com- 65. Id. at 78. CONST. art. II, § 4 (‘‘The President, Vice pletely debunked.’’ Id. at 89. Dr. Fiona Hill, 66. Id. at 79–84. President and all civil Officers of the United former Senior Director of European and Rus- 67. Id. at 86. States, shall be removed from Office on Im- sian Affairs at the National Security Coun- 68. Id. at 87. peachment for, and Conviction of, Treason, cil, called it a ‘‘fictional narrative that is 69. Id. at 87–88. Bribery, or other high Crimes and Mis- being perpetrated and propagated by the 70. Id. at 88–90. demeanors.’’). Russian security services.’’ Id. at 88. She also 71. Id. at 99. 128. See CHARLES L. BLACK, JR. & PHILIP indicated that former National Security Ad- 72. Id. at 69–70. BOBBITT, IMPEACHMENT: A HANDBOOK, NEW visor H.R. McMaster ‘‘spent a lot of time’’ 73. Id. at 106–08. EDITION 43 (2018) (‘‘The phrase ‘high Crimes trying to convince President Trump that the 74. Id. at 128. and Misdemeanors’ comes to us out of theory was Russian propaganda. Id. at 89. 75. Id. at 110–11, 131–33. English law and practice, starting (as far as Furthermore, FBI Director Christopher 76. Id. at 111–25. we know) in 1386.’’). Wray confirmed that the FBI had ‘‘no infor- 77. Id. at 16. 129. THE FEDERALIST NO. 65 (Alexander mation that indicates that Ukraine inter- 78. Id. at 120. Hamilton). fered with the 2016 presidential election.’’ 79. Id. at 122. 130. Ron Chernow, Hamilton Pushed For Im- Luke Barr & Alexander Mallin, FBI Director 80. Id. at 128. peachment Powers. Trump Is What He Had In Pushes Back On Debunked Conspiracy Theory 81. Id. at 129–30. Mind., WASH. POST (Oct. 18, 2019), https:// About 2016 Election Interference, ABC NEWS 82. Id. at 131–35. www.washingtonpost.com/outlook/2019/10/18/ (Dec. 9, 2019), https://abcnews.go.com/Poli- 83. PBS NewsHour, Trump Says China hamilton-pushed-impeachment-powers- tics/fbi-director-pushes-back-debunked-con- Should Investigate the Bidens, YOUTUBE (Oct. trump-is-what-he-had-mind/?arc404=true. spiracy-theory-2016/story?id=67609244. 3, 2019), https://youtu.be/eJd1y0TPPl8?t=99. 131. H.R. REPT. NO. 101–36, at 5 (1989). 45. HPSCI REPORT, supra note 33, at 46. 84. HPSCI REPORT, supra note 33, at 128. 132. 166 CONG. REC. S611 (daily ed. Jan. 27, 46. Id. at 47. 85. Id. at 173. 2020) (statement of Counsel Dershowitz ex- 47. Shane Harris et al., Former White House 86. Id. at 181. plaining that ‘‘[p]urely non-criminal con- Officials Say They Feared Putin Influenced the 87. Id. duct, including abuse of power and obstruc- President’s Views on Ukraine and 2016 Cam- 88. Letter from Pat A. Cipollone, Counsel tion of Congress, are outside the range of im- paign, WASH. POST (Dec. 19, 2019), https:// to the President, to Speaker Nancy Pelosi, peachable offenses’’). www.washingtonpost.com/national-security/ House of Representatives, et al., 2 (Oct. 8, 133. See e.g., S. MISC. DOC. NO. 40–42, at 8 former-white-house-officials-say-they- 2019), https://www.whitehouse.gov/wp-con- (1868) (impeaching President Johnson for feared-putin-influenced-the-presidents- tent/uploads/2019/10/PAC-Letter-10.08.2019.pdf. bringing ‘‘the high office of the President of views-on-ukraine-and-2016-campaign/2019/12/ 89. Id. the United States into contempt, ridicule 19/af0fdbf6-20e9-11ea-bed5- 90. Id. at 4. and disgrace’’); H.R. REPT. NO. 93–1305, at 2 880264cc91a9_story.html. 91. HPSCI REPORT, supra note 33, at 180. (1974) (recommending Articles of Impeach- 48. Kenneth P. Vogel, Rudy Giuliani Plans 92. Id. ment against President Nixon because he Ukraine Trip to Push for Inquiries That Could 93. Id. ‘‘prevented, obstructed, and impeded the ad- Help Trump, N.Y. TIMES (May 9, 2019), https:// 94. U.S. CONST. art. I, § 2, cl. 5. ministration of justice’’); H.R. Res. 601, 105th www.nytimes.com/2019/05/09/us/politics/ 95. H.R. Res. 755, 116th Cong. art. I (2019). Cong. art. IV (1998) (impeaching President giuliani-ukraine-trump.html. 96. See supra text accompanying notes 58– Clinton for an ‘‘abuse of high office’’). 49. Id. Mr. Giuliani also wrote a letter to 60. 134. I MUELLER REPORT, supra note 15, at 5. President-elect Zelensky requesting a meet- 97. HPSCI REPORT, supra note 33, at 57. 135. See supra text accompanying note 31– ing as the attorney for President Trump in 98. Id. at 60–62. 33. his capacity as a ‘‘private citizen, not as 99. Id. at 39. 136. Philip Rucker et al., Trump’s Ukraine Call Reveals a President Convinced of His Own President of the United States.’’ H.R. COMM. 100. Id. at 87–90. Invincibility, WASH. POST (Sept. 21, 2019), ON THE JUDICIARY, IMPEACHMENT OF PRESI- 101. Id. at 82. https://www.washingtonpost.com/politics/ DENT DONALD JOHN TRUMP: THE EVIDENTIARY 102. Id. at 16. trumps-ukraine-call-reveals-a-president-con- RECORD PURSUANT TO H. RES. 798, H.R. DOC. 103. Trial Memorandum of President Don- vinced-of-his-own-invincibility/2019/09/21/ NO. 116–95, VOL. IV, at 7639 (2020) [hereinafter ald J. Trump at 10, In Re Impeachment of 1a56466c-dc6a-11e9-ac63- EVIDENTIARY RECORD]. President Donald J. Trump (Jan. 20, 2020). 50. HPSCI REPORT, supra note 33, at 39, 47. 104. Id. at 2. 3016711543felstory.html. 51. Id. at 48. 105. Id. at 10. 137. See II MUELLER REPORT, supra note 15, 52. Id. at 50. 106. See supra text accompanying notes 36– at 3–4 (summarizing the ten incidents). 53. Id. Despite reports that certain Ukrain- 40. Mr. CRAMER. Mr. President, I seek ian officials did prefer Hillary Clinton in the 107. EVIDENTIARY RECORD, vol. IV, supra recognition today regarding the recent 2016 election, there is little comparison to note 49, at 7639. impeachment trial of President Donald 108. Allan Smith, Giuliani Says State Dept. the Russian interference personally directed Trump. This was a rare moment in our by President Vladimir Putin to assist the Aided His Effort to Press Ukraine on Trump Op- Trump campaign: ‘‘There’s little evidence of ponents, NBC NEWS (Aug. 22, 2019), https:// young Nation’s history. We had little such a top-down effort by Ukraine. Longtime www.nbcnews.com/politics/donald-trump/ to guide us other than the Founding observers suggest that the rampant corrup- giuliani-says-state-dept-aided-his-effort- Fathers’ collective wisdom and sparse tion, factionalism and economic struggles press-ukraine-trump-n1045171. precedent. plaguing the country—not to mention its on- 109. Statement of Material Facts: Attach- The process may seem daunting, and going strife with Russia—would render it un- ment to the Trial Memorandum of the the debate over even the most basic able to pull off an ambitious covert inter- United States House of Representatives at mechanics of the trial could leave the ference campaign in another country’s elec- 14, In Re Impeachment of President Donald J. Trump (Jan. 18, 2020) [hereinafter House future Members of this body suscep- tion.’’ Kenneth P. Vogel & David Stern, tible to deception or misinformation. I Ukrainian Efforts to Sabotage Trump Backfire, Manager’s Statement of Material Facts]. POLITICO (Jan. 11, 2017), https:// 110. HPSCI REPORT, supra note 33, at 42–43. therefore want to offer my thoughts for www.politico.com/story/2017/01/ukraine-sabo- 111. Id. future Senators when this issue inevi- tage-trump-backfire-233446. 112. Id. at 43. tably rises again. 54. HPSCI REPORT, supra note 33, at 50. 113. Id. at 108–09. The impeachment trial proceedings 55. Id. at 57. 114. House Manager’s Statement of Mate- are unique. It is an inherently political 56. Id. rial Facts, supra note 109, at 20. process analogous to a legal trial. 115. HPSCI REPORT, supra note 33, at 88. 57. Id. at 57–58. There is a prosecution, represented by 58. Id. at 59. 116. Id. at 29. 59. U.S. GOV’T ACCOUNTABILITY OFF., B– 117. Id. at 88. the House managers, as well as a de- 331564, MATTER OF OFFICE OF MGMT. & BUDG- 118. Id. at 89. fense, representing the President. ET—WITHHOLDING OF UKRAINE SEC. ASSIST- 119. H.R. Res. 755, 116th Cong. art. II (2019) There is also a presiding judge, the ANCE (2020), https://www.gao.gov/assets/710/ (quoting U.S. CONST. art. I, § 2, cl. 5). Chief Justice of the Supreme Court. 703909.pdf. 120. HPSCI REPORT, supra note 33, at 175 As in a courtroom, the prosecution 60. HPSCI REPORT, supra note 33, at 59–62. 121. Id. at 180. and defense take opposite sides of the See, e.g., EVIDENTIARY RECORD, vol. II, pt. 1, 122. Id. judge as they make their arguments. supra note 49, at 48–49 (testifying that bur- 123. Id. at 179. den-sharing was first provided as a rationale 124. Id. The burden of proof is on the prosecu- to him in September). 125. 2 MAX FARRAND, ED., THE RECORDS OF tors, who must present their evidence, 61. HPSCI REPORT, supra note 33, at 70–71. THE FEDERAL CONVENTION OF 1787, 64 (1911) and it is the job of the defense to refute 62. Id. at 72. (Madison). the arguments.

VerDate Sep 11 2014 04:33 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00050 Fmt 4624 Sfmt 0634 E:\CR\FM\A27FE6.031 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE February 27, 2020 CONGRESSIONAL RECORD — SENATE S1211 There is also a jury, the U.S. Senate. While the question of whether a impeachment of President Trump. Like a courtroom jury, we sit in si- President can commit a crime and Speaker PELOSI herself said impeach- lence throughout the trial listening to therefore be impeached is firmly set- ment was 21⁄2 years in the making. the arguments of both sides and are tled, there arises another question this When House Democrats finally asked to render a verdict at the conclu- impeachment trial did not sufficiently agreed on a reason to impeach the sion. However, unlike a courtroom but answer but must be addressed in the fu- President, their vote to begin the proc- as instructed by the Constitution, we ture. ess received no Republican votes, and are not jurors subject to peremptory The Constitution says it is the job of multiple Democrats voted against it. It challenge; we are elected officials in- the House of Representatives to im- does not seem unreasonable to me that structed to offer impartial justice peach a President whose trial is held a vote to begin an impeachment in- based on the evidence presented to us. before the Senate. According to cur- quiry which has only partisan support We are not expected to check our rent Senate rules, our body must move and bipartisan opposition—as this one knowledge or our existing relationships forward with impeachment pro- did—is not what the Founders had in at the door. If this were a true trial, all ceedings, but is that according to the mind and is what they firmly rejected Senators would have to recuse them- Constitution? and cautioned us against. selves for the inherent bias connected Article I, section 3 of the Constitu- ‘‘Complaints are everywhere heard to the election certificate they earned. tion states: from our most considerate and vir- As Alexander Hamilton wrote in Fed- The Senate shall have the sole Power to tuous citizens, equally the friends of eralist Paper 65, ‘‘In many cases, it try all Impeachments. When sitting for that public and private faith, and of public [impeachment] will connect itself with Purpose, they shall be on Oath or Affirma- and personal liberty, that our govern- the pre-existing factions, and will en- tion. When the President of the United ments are too unstable, that the public list all their animosities, partialities, States is tried, the Chief Justice shall pre- good is disregarded in the conflicts of side: And no Person shall be convicted with- rival parties, and that measures are influence, and interest on one side or out the Concurrence of two-thirds of the on the other.’’ Rather, we are asked to too often decided, not according to the Members present. rules of justice and the rights of the follow our conscience, to hear the argu- With this impeachment behind us, ments of both sides with an open mind minor party, but by the superior force now is the time we as a body need to of an interested and overbearing major- and deliver a verdict. We also differ evaluate the constitutionality and wis- ity,’’ Founding Father James Madison from courtroom jurors in that we es- dom of our rules requiring the Senate wrote in Federalist Paper 10. ‘‘However tablish the rules for the proceedings. to move forward with any impeach- anxiously we may wish that these com- This is done through organizing resolu- ment articles. We must reaffirm our plaints had no foundation, the evi- tions we debate and pass. right to dictate what is considered on Before considering the merits of this dence, of known facts will not permit the Senate floor and when it is consid- us to deny that they are in some degree particular case, it is important to dis- ered, which is not without precedent. cuss the idea of impeachment itself in true.’’ Article II, section 2 of the Constitu- When it came time for the House to light of the present context. During tion says: vote on impeaching the President, the President Trump’s hearing, the Presi- He [the President] shall nominate, and by same ‘‘overbearing majority’’ outcome dent’s legal team alluded to the idea and with the Advice and Consent of the Sen- occurred. No minds were changed, but that a President can do essentially ate, shall appoint Ambassadors, other public the country was further torn apart and whatever he or she wants, and it will Ministers and Consuls, Judges of the Su- the process strayed beyond the original not be considered an impeachable of- preme Court, and all other Officers of the intent of the Founding Fathers. The United States. fense as long as that President’s inter- two Articles of Impeachment before ests in doing so align with the interests In 2016, after the passing of Supreme this body were, in my view, without of the United States. Court Justice Antonin Scalia, Presi- merit. They were an affront to this in- ‘‘If a President does something which dent Barack Obama appointed a Su- stitution and to our Constitution, rep- he believes will help him get elected in preme Court nominee to replace him. resenting the very same partisan de- the public interest, that cannot be the However, with the election of a new rangement that worried our Founding kind of quid pro quo that results in im- President just months away, the Sen- Fathers so much that they made the peachment,’’ said Alan Dershowitz, a ate declared it would not consider this threshold for impeachment so high. member of the President’s legal team, particular nominee and would instead I think it would be universally agree- during the trial. let the people decide whom they would able that Impeachment Articles passed I feel that particular statement is like to nominate a Supreme Court Jus- by a majority of one party and opposed wrong. The Constitution grants no tice. by members of both parties at the very President absolute power. There is a The Senate was well within its right least fail the spirit of the Constitution. threshold that can be reached. Thank- to decide the timing and consideration, To this point, detractors could say the fully, this was later clarified by Mr. or lack thereof, of this constitutional partisan nature of this impeachment Dershowitz in an opinion piece he obligation to consider judicial nomina- proceeding is the fault of Republicans wrote for The Hill entitled ‘‘I never tions, and the same should be true of who blindly follow President Trump, said the President could do anything to impeachment trials. rather than Democrats whose hatred get re-elected.’’ In it, he said: This is a question in need of an an- for this President compels them to act Any action by a politician motivated in swer for future impeachment pro- more than the facts in front of them. part by a desire to be reelected was, by its ceedings because impeachment articles Such an argument quickly falls apart nature, corrupt. Moving to my response, I brought by the House completely derail when you read the statements of Re- listed three broad categories of relevant mo- Senate legislative activity. We are un- tives, which are pure national interest to publicans who found the President’s ac- help the military, pure corrupt motive to ob- able to consider legislation, nomina- tions inappropriate but did not believe tain a kickback, and mixed-motive to help tions, or conduct any floor activity. they rose to the level of impeachment. the national interest in a way that can also While I agree such an enormous re- That argument further corrodes when help a reelection effort. I said the third mo- sponsibility should elicit our undivided you consider the content of the Im- tive was often the reality of politics, and attention, it seems illogical to auto- peachment Articles and the partisan helping your own reelection effort cannot by matically grant primacy to impeach- and secretive process House Democrats itself necessarily be deemed corrupt. ment articles, especially those as followed in writing them. In the end, it is the duty of every flawed as the ones presented by House Fundamentally, the Articles of Im- Senator to determine whether the Democrats. peachment were incomplete. Demo- President acted in a purely self-inter- The House’s impeachment process crats did not complete their own inves- ested manner without any regard for was entirely partisan. Since the mo- tigation before drafting and ultimately the national interest. Given the full ment he was sworn in, Democrats passing the articles, which is why Sen- context of his actions, it is clear Presi- schemed to remove Donald Trump from ate Democrats spent most of their time dent Trump did not act in a purely self- office. By May of 2017, 26 Democratic demanding witnesses and more docu- ish, boundless manner. Members of Congress had called for the ments. The House also did not provide

VerDate Sep 11 2014 04:33 Feb 28, 2020 Jkt 099060 PO 00000 Frm 00051 Fmt 4624 Sfmt 0634 E:\CR\FM\G27FE6.022 S27FEPT1 SSpencer on DSKBBXCHB2PROD with SENATE S1212 CONGRESSIONAL RECORD — SENATE February 27, 2020 due process to the President, nor to the the contents were damning. Contrast discourage future House actions like minority during the House investiga- President Trump’s actions even further what we just witnessed from ever oc- tion. In October of 2019, as the House with the House Democrats who pursued curring again. began formally considering impeach- a secretive, one-sided process to craft We must also find ways to take on a ment in earnest, Senator LINDSEY GRA- the narrative they wanted. bureaucracy run rampant. President HAM led several Senators in intro- Despite several pieces of information Trump was impeached because an ducing S. Res. 378. It laid out specific demonstrating the President’s inno- unelected bureaucrat provided false- issues we had with the House process in cence and none to the contrary, House hoods to an overly receptive Demo- hopes it would remedy the situation Democrats continued this crusade. cratic House chairman’s office with a before sending the articles to the Sen- Their fixation on his removal was a directive to remove President Trump. ate. conclusion in search of a justification. The opinion of Federal career staff is In it, we mentioned five rights Presi- They manufactured criminality from not sacrosanct. Without further action, dent Trump was being denied, although a simple phone conversation between these impeachment proceedings will be the House had provided similar due world leaders, leaked by one of the interpreted as empowering to them, process to Presidents Nixon and Clin- many career bureaucrats who seem to rather than a reminder of who holds ton during their impeachments. The have forgotten they work for the elect- constitutional power. denied rights included allowing the ed leaders in this country, not the Finally, as we seek to apply the les- President to be represented by counsel, other way around. Motives matter. In sons learned from this historic time, I permitting the President’s counsel to the future, Senators should be vigilant was reminded of the words Chaplain be present at all hearings and deposi- in figuring out an accuser’s intention. Black offered to us during his daily tions, permitting the President’s coun- There is a common narrative that ca- opening prayer. ‘‘We must pray for sel to present evidence and object to reer bureaucrats are simply righteous, God’s will to be done.’’ There is a high- the admission of evidence, allowing the opinion-less civil servants. This im- er power than any of us, and our coun- President’s counsel to call and cross- peachment and the actions leading up try would benefit from remembering examine witnesses; and giving the to it prove the exact opposite. By no that more often. President’s counsel access to and the means are all of them evil or ill-willed, f ability to respond to the evidence of- but this proceeding showed they are far BAHRAIN fered by the Committee. from unbiased, and they are capable of The impeachment process against weaponizing the tools and access they Mr. WYDEN. Mr. President, 9 years President Trump had been nothing are given. ago this month, citizens of Bahrain more than secretive hearings and selec- Unsurprisingly, this led to two Im- took up banners to demand a greater tive leaks designed to sway public peachment Articles being sent to the role in their society and political proc- opinion and hurt the President politi- Senate on a party-line vote that were ess. cally. It was a hyper-partisan process without merit. They were an affront to Bahrain’s ruling monarchy cracked completely void of due process, and this institution and to our Constitu- down on the peaceful protestors; State that never changed until it reached the tion, representing the very same par- police and security forces arrested hun- Senate. In our resolution, we also high- tisan derangement that worried our dreds and killed more than a dozen, ac- lighted the fact that ‘‘the main allega- Founding Fathers so much they made cording to press reports at the time. tions against President Trump are the threshold for impeachment this Bahrain’s leaders promised account- based on assertions and testimony high. ability and reforms in response to from witnesses whom he is unable to The Founders created the Senate for international condemnation, but they confront, as part of a process in which moments just like this. When Impeach- would implement hardly any of them, he is not able to offer witnesses in his ment Articles are sent to the Senate, it and they rolled back some of the few defense or have a basic understanding is not our job to fix the mistakes made they did implement. of the allegations lodged against him.’’ by the House, and it is not our job to Indeed, the situation in Bahrain has The issue of evidence, both its origin finish an investigation it admittedly only grown worse. Americans for De- and the lack of compelling proof from did not complete. It is the Senate’s sol- mocracy and Human Rights in Bahrain the House managers, became the foun- emn duty to set aside the heat of the wrote last year that ‘‘since 2017, the dation of this impeachment. This in- moment, prevent short-term stress government has intensified the repres- vestigation began because an anony- from leading to long-term decay, and sion through the arrest, detention, and mous national security official ap- deliver impartial justice. conviction of individuals who draw at- proached Democratic chairman ADAM As James Madison said at the Con- tention to the kingdom’s human rights SCHIFF with a secondhand claim that stitutional Convention, ‘‘The Senate is record or criticise the government.’’ President Trump sought to withhold to consist in its proceeding with more Last month, Human Rights Watch aid to a foreign country to force it to coolness, with more system, and with wrote, ‘‘Bahrain’s human rights record announce it would launch an investiga- more wisdom, than the popular worsened in 2019, as the government tion into one of the President’s polit- branch.’’ That is why, even under the carried out executions, convicted crit- ical rivals. cloud of purely partisan politics of the ics for peaceful expression, and threat- President Trump was quick to offer House of Representatives, the Senate ened social media activists.’’ the transcript of the phone call where conducted a complete, comprehensive It gives me no great pleasure to point this allegedly occurred. He did, and it trial. The obvious result of which was out the monarchy’s increasing repres- showed there was, in fact, no quid pro the conclusion that the Democratic-led sion. I have no personal animosity to- quo, and House Democrats in their in- House of Representatives failed to ward Bahrain, which remains an impor- vestigation were never able to produce meet the most basic standards of proof tant U.S. ally. a firsthand witness to testify other- and dramatically lowered the bar for But the U.S. Government has a wise. impeachment in the future to unac- duty—an obligation—to be honest with Future Senators should be sure to ceptable levels. friends and allies and to hold them to note the eagerness or reluctance of an With all of this established, we as a a high standard. I regret to say that accused President to share clarifying Congress and as a nation must unite the Obama administration did not do information. President Trump took un- around some commonsense changes, nearly enough to hold Bahrain to that precedented action to release the tran- both to institutional rules and to our high standard, as I repeatedly came to script of the conversation Democrats understanding of the impeachment this floor to discuss. The Trump ad- called into question—an action he was process. Lowering the bar for impeach- ministration has, for its part, been not legally required to take and most ment undermines our shared demo- even more callously indifferent to the of his predecessors have never done. cratic principles. regime’s abuses, despite Secretary of Contrast that with President Nixon, Impeachment must be a tool em- State Mike Pompeo speaking many who fought until the end to hide his re- ployed only when the evidence is over- times about the importance of human corded conversations because he knew whelming and well-founded. We must rights.

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