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The Impeachment Trial of Donald J. Trump; Sen. McConnell Revises Trial Rules; House and Trump Legal Team Debate. Aired 2-2:30p ET

Aired January 21, 2020 - 14:00   ET



SCHIFF: -- to threaten the sanctity of our elections.

Resorting to the courts is also inconsistent with the Constitution that gives the House the sole power of impeachment. If the House were compelled to exhaust all legal remedies before impeaching the President, it would interpose the courts or the decision of a single judge between the House and the power to impeach. Moreover, it would invite the President to prevent his own impeachment by endlessly litigating the matter in court, appealing every judgment, engaging in every (inaudible) motion or device.

Indeed, in the case of Don McGahn, the President's lawyer who was ordered to fire the Special Counsel and lie about it, he was subpoenaed by the House in April last year and there is still no final judgment. The President may not defeat impeachment or accountability by engaging in endless litigation.

Instead, it's been the long practice of the House to compile court evidence necessary to reach a reasoned decision about whether to impeach and then to bring the case here to the Senate for a full trial. That is exactly what we did here with an understanding that the Senate has its own power to compel documents and testimony.

It would be one thing if the House had shown no interest in documents or witnesses during its investigation, although even there, the House has the sole right to determine its proceedings as long as it makes the full case to the House, as it did, but it's quite another when the President is the cause of his own complaint, when the President withholds witnesses and documents and then attempts to rely on his own noncompliance to justify further concealment.

President Trump made it crystal clear we would never see a single document or a single witness when he declared, as we just watched, that he would fight all subpoenas. As a matter of history and precedent, it would be wrong to assert that the Senate is unable to obtain and review new evidence during a Senate trial, regardless of why evidence was not produced in the House.

You can and should insist on receiving all of the evidence so you can render impartial justice and can earn the confidence of the public in the Senate's willingness to hold a fair trial. Under the Constitution, the Senate does not just vote on impeachments, it does not just debate them. Instead, it is commanded by the Constitution to try all cases of impeachment.

If the founders intended for the House to try the matter and the Senate to consider an appeal based on the cold record from the other chamber, they would have said so but they did not. Instead, they gave us the power to charge and you the power to try all impeachments.

The framers chose their language and the structure for a reason. As Alexander Hamilton said, "the Senate is given awful discretion in matters of impeachment, the Constitution not (ph) speaks to senators in their judicial character as a court for the trial of impeachments. It requires them to aim at -- aim at real demonstrations of innocence or guilt and requires them to do so by holding a trial."

The Senate has repeatedly subpoenaed and received new documents, often many of them while adjudicating cases of impeachment. Moreover, the Senate has heard witness testimony in every one of the 15 Senate trials -- full Senate trials in the history of this republic, including those for presidents Andrew Johnson and Bill Clinton.

Indeed, in President Andrew Johnson's Senate impeachment trial, the House managers were permitted to begin presenting documentary evidence to the Senate on the very first day of the trial. The House managers initial presentation of documents in President Johnson's case carried on for the first two days of the trial, immediately after which witnesses were called to appear in the Senate.

This has been the standard practice in prior impeachment trials. Indeed, in most trials, this body has heard from many witnesses, ranging from three in President Clinton's case to 40 in President Johnson's and well over 60 in other impeachments.

As these numbers make clear, the Senate has always heard from key witnesses when trying an impeachment. The notion that only evidence that was taken before the House should be considered is squarely and unequivocally contrary to Senate precedent. Nothing in law or history supports it.

To start, consider Leader McConnell's own description of his work at a prior Senate impeachment proceeding. After serving on the Senate Trial Committee in the case of Judge Claiborne, Leader McConnell described how the Senate Committee quote "labored intensively for more than two months, amassing the necessary evidence and testimony." In the same essay, Leader McConnell recognized the full body's responsibility for amassing and digesting evidence.


There was certainly a lot of evidence for the Senate to amass and digest in that proceeding, which involved charges against the District Court Judge, the Senate heard testimony from 19 witnesses and it allowed for over 2,000 pages of documents to be entered into the record over the course of that trial.

At no point did the Senate limit evidence to what was before the House, it did the opposite, consistent with unbroken Senate practice in every single impeachment trial, every single one. For example, of the 40 witnesses who testified during President Johnson's Senate trial, only three provided testimony to the House during its impeachment inquiry, only three. The remaining 37 witnesses in that presidential impeachment trial testified before the Senate.

Similarly, the Senate's full first impeachment trial, which involved charges against Judge Pickering, involved testimony from 11 witnesses, all of whom were new to the impeachment proceedings and not had -- had not testified before the House.

There are many other examples of this point, including the Senate's most recent impeachment trial of Judge Porteous in 2010. It is one that many of you and some of us know well. It, too, is consistent with this longstanding practice. There, the Senate heard testimony from 26 witnesses, 17 of whom had not testified before the House during its impeachment inquiry.

Thus, there is a definitive tradition of the Senate hearing from new witnesses when trying articles of impeachment. There has never been a rule limiting witnesses to those who appeared in the House or limiting evidence before the Senate to that which the House itself considered.

And that is because, as Senator Hiram Johnson explained in 1934, the integrity of Senate impeachment trials depend heavily upon the witnesses who are called, their appearance on the stand, their mode of giving testimony.

There is less than unbroken history of witness testimony in Senate impeachment trials, presidential and judicial. I would argue in the case of a president, it is even more important to hear the witnesses and see the documents.

Any conceivable doubt on this score and there should be none left as dispelled by the Senates own rules for trial of impeachment. Obtaining documents and hearing live witness testimony is so fundamental that the rules of procedure and practice in the Senate when sitting on impeachment trials, which date back to the 19th century, devote more attention to the gathering, handling and admission of new evidence than any other single subject.

These rules expressly contemplate that the Senate will hear evidence and conduct a thorough trial when sitting as a court of impeachment. At every turn they reject the notion that the Senate would take the House's evidentiary record, blind itself to everything else and vote to convict or acquit.

For example, Rule 6 says, the Senate shall have the power to compel the attendance of witnesses and enforce obedience to its orders. Rule 7, authorizes the presiding officer to rule on all questions of evidence, including but not limited to questions of relevancy, materiality and redundancy. This rule too presumes that the Senate trial will have testimony, giving rise to such questions.

Rule 11 authorizes the full Senate to designate a committee of Senators to receive evidence and take testimony, at such times and places as the committee may determine. As rule 11 makes clear, the committee's report must be transmitted to the full Senate for final adjudication.

But nothing here in the rules states shall prevent the Senate from sending for any witness and hearing his testimony in open Senate or by order of the Senate involving the entire trial in the open Senate.

Here too, the Senate's operative impeachment rules expressively contemplate and provide for subpoenaing and witnesses and hearing their testimony as part of the Senate trial. And the list goes on.

These rules plainly contemplate a robust role for the Senate in gathering and considering evidence. They reflect centuries of practice of accepting and requiring new evidence in Senate trials. This Senate should honor that practice today by rejecting this resolution.


What about the Clinton trial? What about the Clinton trial that would be argued? Even if we are departing from every other impeachment trial in history, including the president -- impeachment of President Andrew Johnson, what about the Clinton trial? Aren't we following the same processes in the Clinton trial? The answer is no.

First, the process for the Clinton trial was worked out by mutual consent among the Parties. That is not true here, where the process is sought to be imposed by one Party on the other.

Second, all of the documents in the Clinton trial were turned over prior to the trial. All 90,000 pages of them, so they could be used in the House's case. None of the documents have been turned over by the president in this case, and under Leader McConnell's proposal, none may every be.

The certainly won't be available to you or to us during most or all of the trial. If we are really going to follow the Clinton precedent, the Senate must insist on the documents now, before the trial begins.

Third, the issue in the Clinton trial was not one of calling witnesses, but of recalling witnesses. All the key witnesses in the Clinton trial had testified before the Grand Jury, or been interviewed by the FBI. One of them dozens of times, and their testimony was already known. President Clinton himself testified on camera and under oath before the Senate trial. He allowed multiple chiefs of staff and other key officials to testify. Again, before the Senate trial took place. Here, none of the witnesses we seek to call, none of them have testified or been interviewed by the House.

And as I said the president cannot complain that we didn't call these witnesses before the House when their unavailability was caused by the president himself. And last, as you will remember, those of you that were here, the testimony in the Clinton trial involved decorum issues that are not present here. You may rest assured, whatever else the case may be, such issues will not be present here.

In sum the Clinton precedent, if you're serious about it, if we're really serious about modeling this proceeding after the Clinton trial, the Clinton precedent is one where all the documents had been provided, up front, where all the witnesses had testified, up front, prior to the trial. That is not being replicated by the McConnell resolution, not in any way, not in any shape, not in any form, far from it. The traditional model followed in President Johnson's case and all of the others is really the one that's most appropriate to the circumstances.

The Senate should address all the documentary issues and most of the witnesses now, not later. The need to subpoena documents and testimony now has only increased due to the president's obstruction for several reasons: first, his obstruction has made him uniquely and personally responsible for the absences of the witnesses before the House, having ordered them not too appear he may not be heard to complain now that they followed his orders and refused to testify. To do otherwise, only rewards the president's obstruction and encourages further future presidents to defy lawful process in impeachment investigations.

Second, if the president wishes to contest the facts and his answer and trial brief indicates that he will try, he must not continue to deny the Senate access to the relevant witnesses and documents that shed light on the very factual matters he wishes to challenge. The senate trial is not analogous to an appeal where the parties must argue the facts on the basis of the record below. There is no record below. There is no below. This is the trial.

Third, the president must not be allowed to mislead the Senate by selectively introducing documents while withholding the vast body of documents that may contradict it. This is very important. The president must not be allowed to mislead you by introducing documents selectively and withholding all of the rest. All of the relevant documents should be produced, so there is full disclosure of the truth. Otherwise there is a clear risk that the president will continue to hide all evidence harmful to his position, while selectively producing documents without any context or opportunity to examine their creators.


And finally, you may infer the president's guilt from his continuing efforts to obstruct production of documents and witnesses. The president has said he wants witnesses like Mulvaney and Pompeo and others to testify, and that his interactions with Ukraine have been perfect. Counsel has affirmed today that will be the president's defense, his conduct was perfect, it's perfect. Perfectly fine to coerce an ally by withholding military aid to get help cheating in the next election. That will be part of the president's defense, although albeit not worded in that way.

But now he has changed course and does not want these witnesses to testify. The logical inference in any court of law would be that the party's continued obstruction of lawful subpoenas may be construed as evidence of guilt.

Let me conclude. The facts will come out in the end. The documents which the president is hiding will be released, through the Freedom of Information Act or through other means over time. Witnesses will tell their stories in books and film; the truth will come out. The question is, will it come out in time? And what answer shall we give if we did not pursue the truth now and let it remain hidden until it was too late to consider on the profound issue of the president's guilt or innocence.

There are many overlapping reasons for voting against this resolution, but they all converge on a single idea, fairness. The trial should be fair to the House, which has been wrongly deprived of evidence by a president who wishes to conceal it. It should be fair to the president, who will not benefit from an acquittal or dismissal, if the trial is not viewed as fair, if it is not viewed as impartial. And fair to you, Senators, who are tasked with the grave responsibility of determining whether to convict or acquit and should do so with the benefit of all of the facts. And fair to the American people who deserve the full truth and who deserve representatives who will seek it on their behalf. And with that, Mr. Chief Justice, I yield back.

ROBERTS: Mr. Cipollone, Mr. Sekulow, you have 57 minutes available.

SEKULOW: Thank you, Mr. Chief Justice. Members of the Senate, Leader McConnell, Democratic Leader Schumer, it is also my privilege to represent the President of the United States before this chamber. Senator Schumer said earlier today that the eyes of the founders are on these proceedings. Indeed, that's true. But it is the heart of the Constitution that governs these proceedings. And what we just heard from Manager Schiff, courts have no role, privileges don't apply, what happened in the past we should just ignore. In fact, manager Schiff just said try to summarize my colleagues' defense of the president. He said not in those words of course which is not the first time Mr. Schiff has put words into transcripts that did not exist.

Mr. Schiff also talked about a trifecta. I will give you a trifecta. During the proceedings that took place before the Judiciary Committee, the president was denied the right to cross-examine witnesses, the president was denied the right to access evidence, and the president was denied the right to have counsel present at hearings. That's a trifecta; a trifecta that violates the Constitution of the United States.

Mr. Schiff did say the courts really don't have a role in this, executive privilege, why would that matter? It matters because it's based in the Constitution of the United States. One manager said that it is you that are on trial, the Senate. He also said that -- and others did, that you're not capable of abiding by your oath.

And then we had the invocation of the ghost of the Mueller Report, I know something about that report -- it came up empty on the issue of collusion with Russia. There was no obstruction, in fact, the Mueller Report, to the contrary of what these managers say today -- came to the exact opposite conclusions of what they say.


Let me quote from the House impeachment report, page 16, "although President Trump has at times invoked the notion of due process, an impeachment trial -- an impeachment inquiry is not a criminal trial and should not be confused with it."

Believe me, what has taken place in these proceedings is not to be confused with due process, because due process demands, and the Constitution requires that fundamental fairness and due process -- we're hearing a lot about due process -- due process is designed to protect the person accused.

When the Russia investigation failed, it devolved in to the Ukraine. A quid pro quo, when that didn't prove out, it was then bribery or maybe extortion -- or somebody said -- one of the members, or the members of the House said treason.

But instead we get two articles of impeachment -- two articles of impeachment that have a vague allegation about a non-crime allegation of abuse of power and obstruction of Congress. Members, managers -- right here, before you today who have said that executive privilege and constitutional privileges have no place in these proceedings.

On June 28, 2012 Attorney General Eric Holder became the first United States Attorney General to be held in both civil and criminal contempt. Why? Because, President Obama asserted executive privilege.

With respect to the Holder contempt proceedings, Mr. Manager Schiff wrote, "the White House assertion of privilege is backed by decades of precedent that has recognized the need for the president and his senior advisors to receive candid advice and information from their top aides. Indeed that's correct, not because Manager Schiff said it, but because the Constitution requires it.

Mr. Manager, Nadler said that the effort to hold Eric Holder, Attorney General Holder, in contempt for refusing to comply with various subpoenas was, quote, "politically motivated," and Speaker Pelosi called the Holder matter and I quote, more than -- little more than a witch hunt.

What are we dealing with here? Why are we here? Are we here because of a phone call, or are we here before this great body because since the president was sworn in to office there was a desire to see him removed?

I remember in the Mueller Report there were discussions about insurance policies. Insurance policy didn't work out so well, so then we moved to other investigations. I guess you would call it reinsurance, or an umbrella policy, and that didn't work out so well. And here we are today.

Manager Schiff quoted the Supreme Court, and I'd like to make reference to the Supreme Court as well. It was then Justice Rehnquist, later to be Chief Justice Rehnquist who wrote from the majority in the United States versus Russell in 1973. These are the words: "We may someday be presented with a situation which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction." That day is today -- that day was a year ago, that day was in July when Special Counsel Mueller testified. I am not today going to take the time to review, I will do it later -- the pattern and practices of irregularities that have gone on in these investigations from the outset. But to say that the courts have no role -- the rush to impeachment, to not wait for a decision from a court on an issue as important as executive privilege. As if executive privilege hasn't been utilized by presidents since our founding, this is not some new concept.


We don't waive executive privilege, and there's a reason we keep executive privilege and we assert it when necessary -- and that is to protect -- to protect the Constitution and the separation of powers.

The president's opponents in their rush to impeach have refused to wait for complete Judicial review -- that was their choice. Speaker Pelosi clearly expressed her impatience and contempt for Judicial proceedings (ph) when she said "we cannot be at the mercy of the courts."

Think about that for a moment -- "we cannot be at the mercy of the courts." So take Article Three of the United States Constitution, remove it. We're acting as if the courts are an improper venue to determine constitutional issues of this magnitude -- that is why we have courts, that is why we have a Federal Judiciary.

It was interesting when Professor Turley testified before the House Judiciary Committee, in front of Mr. Nadler's Committee. He said, we have three branches of government, not two -- if you impeach a president, if you make a high crime and misdemeanor out of going to courts and abuse of power, it's your abuse of power. You know, it's more than that, a lot more than that. There's a lot more than an abuse of power if you say the courts don't apply, constitutional principles don't apply. Let's start with a clean slate as if nothing happened -- a lot has happened.

As we proceed in the days ahead, we will lay out our case. We're going to put forward to the American people -- but more important, for the Constitution's sake, what's taken place here -- that this idea that we should ignore what has taken place over the last three years is outrageous.

We believe that what Senator McConnell has put forward provides due process, allows the proceedings to move forward in an orderly fashion. Thirty-three days -- 33 days, they held onto those impeachment articles -- 33 days. It was such a rush of national security that -- impeach this president before Christmas that they then held them for 33 days. To do what? To act as if they negotiate -- the House of Representatives should negotiate the rules of the United States Senate. They didn't hide this. This was the expressed purpose. This was the reason they did it.

We're prepared to proceed, Majority Leader, Democratic Majority Leader. We're prepared to proceed. In our view, these proceedings should begin.

I yield the rest of my time to my colleague, the White House counsel. Thank you, Mr. Chief Justice.

ROBERTS: Mr. Cipollone?

CIPOLLONE: Thank you, Mr. Chief Justice.

I just want to make a couple of additional points. It's very difficult to sit there and listen to Mr. Schiff tell the tale that he just told. Let's remember how we all got here: They made false allegations about a telephone call. The president of the United States declassified that telephone call and released it to the public. How's that for transparency?

When Mr. Schiff found out that there were -- there was nothing to his allegations, he focused on the second telephone call. He made false -- and his colleagues made false allegations about that second telephone call that occurred before the one he had demanded. So the president of the United States declassified and released that telephone call. Still nothing. Again, complete transparency in a way that, frankly, I'm unfamiliar with any precedent of any president of the United States releasing a classified telephone call with a foreign leader.

When Mr. Schiff saw that his allegations were false -- and he knew it, anyway -- what did he do? He went to the House and he manufactured a fraudulent version of that call. He manufactured a false version of that call. He read it to the American people and he didn't tell them it was a complete fake.

Do you want to know about due process? I'll tell you about due --