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The Impeachment Trial of Donald Trump; House Managers and Trump Team Debate Trial Rules. Aired 3:30-4p ET

Aired January 21, 2020 - 15:30   ET


[15:30:00] LOFGREN: -- so-called drug deal on Ukrainian officials.

The documents will also show us how key players inside the White House, such as the President's Acting Chief of Staff, Mick Mulvaney, and his deputy, Robert Blair, helped set up the deal by executing the freeze on all military aid and withholding a promised visit to the White House.

The documents include records of the people who may have objected to this scheme, such as Ambassador Bolton. This is an important impeachment case against the President. The most important documents are going to be at the White House.

The documents Senator Schumer's amendment targets would provide more clarity and context about President Trump's scheme. The amendment prevents the President from hiding evidence, as he has previously tried to do.

Now, the House subpoenaed these documents as part of the impeachment inquiry but the President completely rejected this and every document subpoenaed from the House. As powerful as our evidence is -- and make no mistake, it overwhelmingly approves -- proves his guilt -- we did not receive a single document from the executive branch agency including the White House itself. Recent revelations from press reports, Freedom of Information Act requests, and additional witnesses such as Lev Parnas underscore how relevant these documents and therefore why the president has been so desperate to hide them and his misconduct from Congress and from the American people.

A trial without all the relevant evidence is not a fair trial. It would be wrong for you Senators acting as judges to be deprived of relevant evidence at the president's offenses when you are judging these most serious charges. It would also be unfair to the American people who overwhelmingly believe the president should produce all relevant documents and evidence.

Now documentary evidence is used in all trials for a simple reason, as the story goes the documents don't lie. Documents give objective, real time insight into the events under investigation. The need for such evidence is especially important in Senate impeachment trials. More than 200 years of Senate practice make clear that documents are generally the first order of business.

They presented -- been presented to the Senate before witnesses take the stand in great volume to ensure the Senate has the evidence it needs to evaluate the case. Now documentary evidence in Senate trials has never been limited to the document sent by the House. The Senate threw out its existence, has exercised its authority pursue it to its clear rules and procedure to subpoena documents at the outside of a trial.

We don't know with certainty what the documents will say. We simply want the truth whatever that truth may be, so do the American people. They want to know the truth and so should everybody in this chamber regardless of our party affiliation. There are key reasons why this amendment is necessary. We'll begin by walking through the history and president of Senate impeachment trials.

I'll let you know about the House's efforts to get the document, which were met by the president and his administrations categorical commitment to hide all the evidence at all cost. And we'll address the specific need for these subpoenaed White House documents. I'll tell you why these documents are needed now, not at the end of the trial, in order to ensure a full, fair trial based on a complete evidentiary record.

Now some have suggested incorrectly that the Senate is limited only to evidence gathered before the House approved its articles of impeachment. Others have suggested, also incorrectly, that it would somehow be strange for the Senate to issue subpoenas. These claims are without any historical, presidential, or legal support.

Over the past two centuries the Senate has always understood that its sole power under the Constitution to try all impeachments, requires the Senate to sit as a court of impeachment and hold a trial. In fact, the founders assigned sole authority only twice in the Constitution. First, giving the House sole authority to impeach. And second, giving the Senate sole authority to try that impeachment.


If the founders had intended for the Senate to serve as some kind of appellate body, they would have said that but no, instead they wrote this. Article 1 Section 3, the Senate shall have the sole power to try all impeachments. The Senate has always received the relevant documents in impeachment trials and indeed the Senate's own rules, the procedure and practice make clear that new evidence will be considered.

President shows this. All 15 full Senate impeachment trials considered new evidence. Let's look at a few examples that show the Senate takes new evidence in impeachment trials.

The first ever presidential impeachment trial in 1868 against President Andrew Johnson allowed the House managers to spend the first two days of the trial introducing new documentary evidence. It was the same in Judge John Pickering's trial in 1804. New documents were presented to the Senate nearly a week before House managers made their opening statement and later throughout the trial.

And as been mentioned earlier by Mr. Schiff in modern times in 2010, Judge Porteous's impeachment trial included seven months of pre-trial discovery and 6,000 pages of documentary evidence admitted at trial. After that evidence was admitted the Senate held its trial.

President Clinton's case did not involve subpoenas for documents. Now why was that? Because President Clinton had already produced a huge trove of documents. The independent counsel turned over to Congress some 90,000 pages of relevant documents gathered during the course of his years-long investigation. And I remember as a member of the Judiciary Committee going over to the Ford Building, looking at the boxes of the documents, but even with all those documents the Clinton trial included the opportunity to present new evidence and the admission of additional documents and three witnesses.

The Clinton impeachment precedent also shows how President Trump's refusal to produce any relevant documents in response to congressional subpoenas is different from past presidents, different from President Clinton, different from President Johnson, and less even than President Nixon. In short, not a single president has categorically refused to cooperate with an impeachment investigation.

Not a single president has issued a blanket direction to his administration to produce no documents and no witnesses. These are the presidents the Senate must rely on. The Senate should issue a subpoena for documents at the very outset of the proceedings so that this body, the House Managers, the President can all account for those documents in their presentations and deliberations.

It doesn't make sense to request and receive documents after the party's present their cases. The time is now to do that so why is the amendment needed to prevent President Trump from continuing his categorical commitment to hide the evidence?

In this case the House sought White House documents. Why do we have them? It's not because we didn't try it's because the White House refused to give them to us. The President's defense team seems to believe that the White House is permitted to completely refuse to provide any documents without regard to whether or not it is privileged. They apparently believe that Congress's authority is subject to the approval of the President but that's not what the Constitution says.

Our Constitution sets forth a democracy with a system of checks and balances to ensure that no one and certainly not the President, is above the law. Now even President Nixon produced more than 30 transcripts of White House recordings and notes from meetings with the President. Here even before the House launched the investigation that led to this trial, President Trump rejected Congress' Constitutional responsibility to use its lawful authority to investigate his actions.

He asserted that his administration was fighting all the subpoenas, proclaiming, I have an article two -- or I have the right to do whatever I want as president. Here is what he said.

TRUMP: Here I have an article two, where I have the right to do whatever I want as president.

[15:40:00] LOFGREN: Even after the House formally announced its investigation of the president's conduct in Ukraine, the president still continued his obstruction. Beginning on September 9, 2019 the House Investigative Committees made two attempts to voluntarily obtain documents from the White House.

The White House refused to engage with frankly, or even respond to the House committees. On October 4, the House Committee on Oversight and Reform sent a subpoena to White House Acting Chief of Staff, Mick Mulvaney, this time compelling the production of documents from the White House by October 18.

On October 8 before the White House documents were due, the White House Counsel sent a letter to Speaker Pelosi stating the president's position that President Trump and his administration cannot participate in this partisan inquiry under these circumstances.

The president simply declared that he will not participate in an investigation he didn't like. Ten days later on October 18, the White House Counsel sent a letter to the House confirming that it would continue to stonewall.

The White House Counsel again stated, the president refused to participate. Well, the Constitution article one section two says that the House shall have the sole power of impeachment, just as in article one section three the Senate has the sole power to try -- participation in a duly authorized Congressional investigation isn't optional -- it's not up to the president to decide whether to participate or not.

The Constitution gives the House the sole power of impeachment -- it gives the Senate the sole power to try all impeachments. The president may not like being impeached, but it's the president -- not the -- if the president, not the Congress decides when impeachment proceedings are appropriate, then the impeachment power is no power at all.

And if you let him block from Congress, and from the American people the evidence to cover up his offenses, then the impeachment power truly will be meaningless.

With all the back and forth about these documents we've heard the phrase executive privilege. The president and his lawyers keep saying it, they talk about vast legal rights to justify hiding the truth withholding information -- but that's a distraction -- that's not what the Constitution provides.

And the truth is -- as has been mentioned by Mr. Schiff, in the course of the entire impeachment inquiry President Trump has not once asserted executive privilege. Not a single time. It was not the reason provided by Mr. Cipollone for refusing to comply with the House's subpoena.

Indeed, President Trump didn't offer legal justification for withholding the evidence -- here's the truth -- presidents, members of Congress, judges, and the Supreme Court have recognized throughout our nation's history that Congress' investigative power are at their absolute peak during impeachment proceedings -- your powers.

Executive privilege cannot be a barrier to give absolute secrecy to cover up wrongdoing. If it did the House and the Senate would see their power disappear. When President Nixon tried that argument, by refusing to produce tape recordings to prosecutors and to Congress, he was soundly rebuked by the other two branches of government -- the Supreme Court unanimously ruled against him, the House Judiciary Committee voted that he be impeached for obstruction of Congress.

It would be remarkable for the United States Senate to declare for the first time in our nation's history, that the president has an absolute right to decide whether his own impeachment is legitimate. And it would be extraordinary for the Senate to refuse to seek important documentary evidence, especially when the president has yet to assert any privilege to justify withholding documents.

Now there's another reason this amendment is important -- the documents sought are directly relevant to the president's misconduct. The White House is concealing documents involving officials who have direct knowledge of key events at the heart of this trial.

This isn't just a guess, we know these documents exist from the witnesses who testified in the House and from other public release of documents. And let's walk through those specific documents that the White House should send to the Senate.

They include, among other documents relating to President Trump's direct communications with President Zelensky, President Trump's request for political investigations including communications with Rudy Giuliani, Ambassador Sondland, and others.


President Trump's unlawful hold of the $391 million of military aid, concerns that White House officials reported to NSC legal counsel in real time. The president's decision to recall Ambassador Marie Yovanovitch from Ukraine.

The first set of documents, that the Senate should get about President Trump's communication with the President of Ukraine would include the phone calls on April 21 and July 25, as well as the September 25, 2019 meeting with President Zelensky in New York.

We know, for example, that NSC officials prepared talking points for the president in preparation for both calls with the Ukrainian president. The talking points were about American policy, as reflected by the votes of Congress as well as the Trump administration itself. They didn't include any mention of the Bidens' or the 2016 election interference, or investigations that President Trump requested on the July 25 call.

Here's a clip of Lieutenant Colonel Vindman explaining how the president ignored the points about American policy, reflecting the views of both the Congress and the Trump administration.

SCHIFF: Colonel Vindman, if I could turn your attention to the April 21 call -- that is the first call between President Trump and President Zelensky. Did you prepare talking points for the president to use during that call?

VINDMAN: Yes, I did.

SCHIFF: And did those talking points include rooting out corruption in Ukraine?


SCHIFF: That was something the president was supposed to raise in the conversation with President Zelensky?

VINDMAN: Those were the recommended talking points that were cleared through the NSC staff for the president, yes.

LOFGREN: The materials provided for the July 25 call that Lieutenant Colonel Vindman mentioned, are highly relevant. They could help confirm that the president's actual statements to President Zelensky were unrelated to the foreign policy objectives of his own administration and show that they served his own personal interests at the expense of America's national security interests.

These documents also include handwritten notes and other documents that White House officials generated during the calls and meetings. We know, for example, that Lieutenant Colonel Vindman, Mr. Morrison, Jennifer Williams, all testified to taking contemporaneous handwritten notes during the July 25th call.

Ms. Williams and Lieutenant Colonel Vindman both testified that President Zelensky made an explicit reference to Burisma that was not included in the memorandum that the White House released to the public. Here's a clip of their testimony.


SCHIFF: Both of you recall President Zelensky in that conversation raising the issue or mentioning Burisma, do you not?

WILLIAMS: That's correct.

VINDMAN: Correct.

SCHIFF: And yet, the word "Burisma" appears nowhere in the call record that has been released to the public, is that right?

WILLIAMS: That's right.

VINDMAN: Correct.


LOFGREN: Why you need documents generated after the calls and meetings? They would shed light on how these events were perceived in the White House and what actions were taken moving forward. For example, National Security Adviser John Bolton wasn't on the 25th call but he was apparently informed about the contents of the call afterward. His reaction, once he was informed, would be helpful to understanding the extent to which President Trump's action deviated from American policy and America's security interests.

There is another set of documents that the Senate should get, and they relate to the political investigations that President Trump and his agents repeatedly asked Ukrainian officials to announce. These documents about efforts to pressure Ukraine to announce investigations and the decision to place a hold on military aid to Ukraine, it would be very important for you to evaluate the president's conduct.

For example, Ambassador Bolton is a first-hand witness to President Trump's abuse of power. He reported directly to the president. He supervised the entire staff of the National Security Council. Public reports indicate that John Bolton is a voracious note-taker at every meeting.


From witness testimony, we know that Ambassador Bolton hosted the July 10th, 2019 meeting where Ambassador Sondland told Ukrainian officials that the promised White House meeting would be scheduled if they announced the investigations. We know Bolton was briefed about the meeting immediately following it when Ambassador Sondland said he had a deal with Mick Mulvaney to schedule the promised White House meeting if Ukraine announced investigations into the Bidens and the 2016 election.

We also know Ambassador Bolton was involved in briefing the president on a Presidential Decision Memorandum in August, reflecting the consensus inter-agency opinion that Ukrainian security assistance was vital to America's national security, something that Congress had approved, appropriated, something the president had signed.

Press reports indicate that he too was involved in a late August Oval Office meeting where he, Secretary Pompeo, and Secretary Esper all tried to convince the president to release the aid.

Now Ambassador Bolton has come forward and publicly confirmed that he was a witness to important events, but also that he has new evidence that no one has seen yet. If we know there's evidence that has not yet come out, all of us should want to hear it. We should want to hear it now before Ambassador Bolton testifies.

We should get documents and records relating to his testimony, including his notes, which would provide contemporaneous evidence about what was discussed in meetings related to Ukraine, which would help to evaluate his testimony. The evidence is not just restricted to Ambassador Bolton. During his public testimony, Ambassador Gordon Sondland stated, "I have not had access to all my phone records."

He also said that he and his lawyers had asked repeatedly for these materials. He said the materials would help refresh his memory, we should look at those -- that material. Ambassador Sondland also testified that he exchanged a number of emails with top officials like Mick Mulvaney about his efforts to pressure Ukraine to announce the investigations President Trump demanded. Here's his testimony.



SONDLAND: Third, let me say, precisely because we did not think that we were engaging in improper behavior, we made every effort to ensure that the relevant decision-makers at the National Security Council and the State Department knew the important details of our efforts.

The suggestion that we were engaged in some irregular or rogue diplomacy is absolutely false. I have now identified certain State Department emails and messages that provide contemporaneous support for my view. These emails show that the leadership of the State Department, the National Security Council, and the White House were all informed about the Ukraine efforts from May 23rd, 2019, until the security aid was released on September 11th, 2019.


LOFGREN: These emails, among others, are in the possession...


LOFGREN: These emails referenced in this testimony are in the possession of the White House, the State Department, and even the Department of Energy since officials from all three entities communicated together.

Now during his testimony, Ambassador Sondland described it this way. "Everyone was in the loop, it was no secret." These emails are therefore important to understanding the full scope of the scheme. The request for relevant evidence is not confined to Trump administration officials.

The Senate should also get White House records relating to the president's private agents who acted on his behalf in Ukraine, including Rudy Giuliani, Victoria Toensing, and Joe diGenova. Witness testimony and documents have made clear that Mr. Giuliani, a frequent visitor to the White House who also received and made frequent calls to the White House, was acting on behalf of of the president to press Ukrainian officials to announce investigations that would personally and politically benefit the president.

For example, the May 10th, 2019 letter for Mr. Giuliani to President- elect Zelensky, that's shown on this slide, states he was acting "as personal counsel for President Trump with his knowledge and consent." He requested a meeting with the president-elect, to be joined by Ms. Toensing who is "very familiar with this matter." The evidence indicates he was collaborating with Ms. Toensing and Mr. diGenova in this effort. The Senate should get the White House records of meeting, of calls involving Mr. Giuliani, Ms. Toensing, or Mr. diGenova. These records are important to help you understand the extent to which the White House was involved and Mr. Giuliani's efforts to coerce Ukraine to announce the investigations the present ordered (ph).

The records would also show how the president's personal political agenda became more important than policies to help America's national security interests. The president's council may consist with this prior task (ph) to hide evidence, assured (ph) that attorney client privilege would cover these documents. But the President's personal attorney client privilege cannot shield evidence of misconduct in office or that of his aids, or of his lawyers participation in corrupt schemes. We aren't asking for documents reflecting legitimate legal advice, you need documents about their actions to pressure Ukraine to announce an investigation into President Trump's political opponent.

There's a set of White House documents that relate directly to -- the President's unlawful decision to withhold $391 million appropriated bipartisan to help Ukraine. Witnesses have testified that President Trump directly ordered a hold on the security systems despite the unanimous (ph) opinion of these agencies that the aid should be released. Importantly, according to the government accountability office, his action violated the law, on January 16th 2020 the GAO and independent watchdog issued a legal opinion finding that President Trump violated the law when he held up security assistance to Ukraine.

The GAO said and I quote "faithful execution of law does not permit the President to substitute his own policy priorities for those that Congress enacted into law." OMB withheld funds for a policy reason which is not permitted under the Impoundment Control Act. The withholding was not programmatic (ph) delay, therefore we conclude that OMB violated the ICA. The fact that the President's action to freeze the aid which he used to pressure Ukraine to announce the political investigations he wanted was against not only the official -- consensus of his own administration, but also against the law and it was to help himself.

That helps demonstrate these action were taken for President Trump's personal and political benefit. With this testimony and public reporting made clear, the White House has a significant body of documents that relate to these key aspects of the President's scheme. Some of these documents outline the planning of the Presidents freeze. For example, the New York Times reported in June that Mr. Mulvaney emailed his senior advisor Mr. Blair, did we ever find out about the money for Ukraine and whether we can hold it back.

This shows that Mr. Mulvaney was in email contact with -- his aides about the very issues under investigation as part of this impeachment. It tells us the White House is in possession of communications that go to the heart of the charges before you. The senate should also get materials prepared for summary notes from a late August meeting with President Trump, Secretary of Defense Mark Esper and Secretary of State Mike Pompeo when they tried to convince the president that freeing, and this is a quote, freeing up the money for Ukraine was the right thing to do.

According to the "New York Times", Ambassador Bolton told the president, this is in America's interest. The senate should review that highly relevant document which reflects real-time assertion by President Trump's own senior aides that Ukrainian aid was in the national security interest of the United States and that there was no legitimate reason to hold up the aid.

There are documents that include after the fact justifications to try and overcome legal problems -