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Impeachment Trial Kicks Off With Fierce Battle Over Rules. Aired 4-4:30p ET

Aired January 21, 2020 - 16:00   ET


[16:00:00] LOFGREN: -- 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 in the unanimous objection freezing assistance to Ukraine and we know these documents exist. For example, on January 3, 2020, OMB stated in a letter to the "New York Times" that it had discovered 20 responsive documents consisting of 40 pages reflecting emails between White House official Robert Blair and OMB official Michael Duffy that relate directly to the freezing of the Ukraine Security assistance but OMB wouldn't release them in a Freedom of Information lawsuit and they have refused to produce these documents at the direction of the president in response to the House's lawful subpoena.

Now the "Washington Post" reported that a confidential White House review of President Trump's decision to hold up hundreds of documents that reveal extensive efforts to generate an after-the-fact justification for the debate over whether the delay was legal. That's known as a cover-u-up actually. The White House lawyers had apparently uncovered quote, early, August email exchanges between Acting Chief of Staff Mick Mulvaney and White House budget officials seeking to provide some explanation for withholding the funds the president had already ordered on hold.

The documents also reportedly include communications between White House officials and outside agencies. Not only does Congress have a right to see them, the public does too under Freedom of Information laws. Now as a matter of Constitutional authority, the Senate has the greatest interest in and right to compel those documents. Indeed, as the news article explains, White House lawyers are reportedly quote, worried about unflattering exchanges and facts that could at a minimum embarrass the president.

Perhaps they should be worried about that but the risk of embarrassment cannot outweigh the Constitutional interest in this impeachment proceeding. Any evidence of guilt including further proof of the real reason the president ordered the funds withheld or after the fact attempts to paper over(ph) knowingly unlawful conduct. They must be provided to ensure a full and fair trial. No privilege or national security rationale can be used as a shield from disclosing misconduct.

There are key White House documents relating to multiple instances when White House officials reported their concerns to White House lawyers about the president's scheme to press Ukraine to do the president a domestic political favor. For example, Lieutenant Colonel Vindman and Dr. Hill both informed NSC lawyers about the July 10 meeting in which Ambassador Sondland revealed he had a deal with Mr. Mulvaney.

I'm going to go directly to the clip by Dr. Hill because Dr. Hill - pardon me - at Bolton's direction also reported that meeting to Dr. - to John Eisenberg as she explained in her testimony.


HILL: I had a discussion with Ambassador Bolton both after the meeting in his office, a very brief one then one immediately after the subsequent meeting.

(UNKNOWN): So the subsequent meeting -- after both meetings when you spoke to him and relayed to him what Ambassador Sondland said, what did Ambassador Bolton say to you?

HILL: Well I just want to highlight first of all that Ambassador Bolton wanted me to hold back in the room a meeting after the meeting. Again, I was sitting on the sofa with a colleague...

(UNKNOWN): Right, but just in that second meeting, what did he say?

HILL: Yes, but he was making a very strong point that he wanted to know exactly what was being said and when I came back and relayed it to him, he had some very specific instruction for me and I'm presuming that that's what...

(UNKNOWN): What was that specific instruction?

HILL: The specific instruction was that I had to go to the lawyers, to John Eisenberg, our senior counsel for the National Security Council to basically say you tell Eisenberg Ambassador Bolton told me that I am not part of this whatever drug deal that Mulvaney and Sondland are cooking up.

(UNKNOWN): What did you understand him to mean by the drug deal that Mulvaney and Sondland were cooking up?

HILL: I took it to mean investigations for a meeting.

(UNKNOWN): Did you go speak to the lawyers?

HILL: I certainly did.

(UNKNOWN): You relayed everything that you just told us and more?


HILL: I relayed it precisely and then the (inaudible) details of how the meeting had unfolded as well which I gave a full description of this in my October 14 deposition.


LOFGREN: There was something wrong going on here and White House officials were told repeatedly, go tell the lawyers about it. Dr. Hill, Lieutenant Colonel Vindman, Mr. Morrison who reported to Mr. Eisenberg at least two conversations. We need the notes of those documents to find out what was said and again attorney-client privilege cannot shield information about misconduct from the impeachment trial of the President of the United States.

Now it's interesting, this amendment is supported by 200 years of precedent. It's needed to prevent the president from continuing to hide the evidence and that's why the specific documents requested are so important for this case. It's faithful to the Constitution's provision that the Senate shall have the sole power to try all impeachments. The final point I'll make today concerns urgency.

The Senate should act on this subpoena now at the outset of the trial. In 14 of the Senate's 15 full impeachment trials, threshold evidentiary matters including the timing, nature and scope of witness testimony and the gathering of all relevant documents were addressed at the very outset of the trial. There are practical considerations as why the subpoenas need to be issued now, resolving whether a subpoena should issue now would let us immediately engage with the White House to resolve assorted legitimate privilege issues if any exist and ensure you get the documents as soon as possible so they can be presented to the Senators in advance of witness testimony. Waiting to resolve these threshold matters until after the parties have presented their case would undercut the process of a genuine credible trial. Thus, common sense, tradition and fairness all compel that the amendment should be adopted and it should be adopted now.

Members of the Senate for all the reasons I walked through today, I urge you to support the amendment to issue a subpoena for White House documents, documents that are directly relevant to evaluating the President's scheme.

The House did its job. In the face of the presence of obstruction and categorical commitment to hide the evidence, we still gathered direct evidence of his conduct and determined that his conduct required impeachment.

The President complains about due process in the House investigation but he was not only permitted to participate, he was actually required to participate, yet he refused to do so, he refused to provide witnesses and documents that would tell his side of the story. So now it's up to you.

With the backing of the subpoena authorized by the Chief Justice of the United States, you can end President Trump's obstruction. If the Senate fails to take this step, if it won't even ask for this evidence, this trial and your verdict will be questioned.

Congress and the American people deserve the full truth. There is no plausible reason why anyone wouldn't want to hear all of the available evidence about the President's conduct. It's up to this body to make sure that happens. It's up to you to decide whether the Senate will affirm its sole power and constitutional duty to try impeachments, whether and when it will get the evidence that it needs to render a fair verdict.

Don't surrender to the President's stonewalling. It will allow the President to be above the law and deprive the American people of truth in the process.

A fair trial is essential in every way, important for the President who hopes to be exonerated, not merely acquitted by a trial seen as unfair. Important for the Senate, whose vital role is to continue to protect and defend the Constitution of the United States, which has preserved our American liberty for centuries. And finally, important for the American people, who expect a quest for truth, fairness and justice.

History is watching and the House managers urge that you support the amendment. And I reserve the balance of my time.

ROBERTS: Thank you, counsel. Mr. Cipollone?

CIPOLLONE: Mr. Chief Justice, Patrick Philbin will present our opposition.


ROBERTS: Very well. Mr. Philbin?

PHILBIN: Thank you. Mr. Chief Justice, Majority Leader McConnell, Democratic Leader Schumer, senators, it's remarkable that after taking the action of the breathtaking gravity of voting to impeach the duly elected President of the United States and after saying for weeks that they had overwhelming evidence to support their case, the first thing that the House managers have done upon arriving finally in this chamber, after waiting for 33 days, is to say "well, actually, we need more evidence, we're not ready to present our case, we need to have subpoenas and we need to do more discovery because we don't have the evidence we need to support our case."

This is stunning. It's a stunning admission of the inadequate and broken process that the House Democrats ran in this impeachment inquiry that failed to compile a record to support their charges, it's stunning that they don't have the evidence they need to present their case and that they don't really have a case.

If a litigant showed up in any court in this country on the day of trial and said to the judge "actually, Your Honor, we're not ready to go, we need more discovery, we need to do some more subpoenas, we need to do some more work," they'd be thrown out of court and the lawyers would probably be sanctioned.

This is not the sort of proceeding that this body should condone. Now, we've just heard that this is so important - let's consider what's really at issue in the resolution here and the amendment - it's a matter of timing, it's a matter of when this body will consider whether there should be witnesses or subpoenas for documents. Why is it that the managers - the House managers are so afraid to have to present their case, present - remember, they've had weeks of a process that they entirely controlled. They had 17 witnesses who testified first in secret and then in public, they've compiled a record with thousands of pages of reports and they're apparently afraid to just make a presentation based on the record that they compiled and then have you decide whether there's any there there, whether there's anything worth trying to talk to more witnesses about.

Why is it that they can't wait a few days to make their presentation on everything they've been preparing for weeks and then have that issue considered? Because they don't think that there is any there there and they want to ram this through now. And they want to ram this through now - and it's something they themselves failed to do.

So I want to unpack a couple of the aspects of what they're asking this body to do. Part of it relates to the broken process in the House and how that process was inadequate and invalid and compiled an inadequate record, part of it has to do with what accepting their request, to have this body do their job for them, would do to this institution going forward and how it would alter forever the relationship between the House and the Senate in impeachment proceedings.

So first, as to the process in the House, what they're asking - the House manager asking this body to do now is really to do their job for them because they didn't take the measures to pursue these documents in the House proceedings.

And there have been a number of statements made about they - they tried to get the documents and no executive privilege was asserted and things like that. Let's look at what actually happened. They issued a subpoena to the White House and the White House explained - and we were told a few minutes ago that the White House provided no response, it provided no rationale. That's not true. In a letter of October 18th, White House counsel Pat Cipollone explained, in three pages of legal argument, why that subpoena was invalid and that subpoena was invalid because it was issued without authorization.

We've heard a lot today about how the Constitution assigns the sole power of impeachment to the House. That's right, that's what Article 1, Section 2 says, it assigns the sole power of impeachment to the House, not to any member of the House. And no committee of the House can exercise that authority to issue subpoenas until it's been delegated that authority by a vote of the House. There was no vote from the House.

Instead, Speaker Pelosi held a press conference and she purported by holding a press conference on September 24th to delegate the authority of the House to manager Schiff and several other committees and have them issue subpoenas.


All of those subpoenas were invalid and that was explained to the - the House, to manager Schiff and the other chairmen of those committees, at the time in that October 18th letter. Did the House take any steps to remedy that? Did they try to dispute that? Did they go to court? Did they do anything to resolve that problem? No.

Because as we know, all that they wanted to do was issue a subpoena and move on. They just wanted to get through the impeachment process as quick as possible, and get it done before Christmas -- that was their goal.

So, those subpoenas were unauthorized. Now, what about some of the other things that they brought up? The witnesses -- witnesses who were directed not to testify. And impart (ph) on this, we've heard manager Schiff say several times that the White House never asserted executive privilege.

Well, let me clear on that -- that's a lawyer's trick, because it is technically true that the White House didn't assert executive privilege because there's a particular situation in which you do that, and a particular way that you do that.

But there's another doctrine of immunity, of senior advisors to the president that is based on the same principles as executive privilege and that has been asserted by presidents of both political parties since the 1970s at least.

So that's -- and this is what one attorney general explained about that, "the immunity such advisors enjoy from testimonial compulsion by a Congressional Committee is absolute, and may not be overborne by competing Congressional interests," that was Attorney General Janet Reno in the Clinton administration, explaining that senior advisors to the president are immune from Congressional compulsion.

And that doctrine -- that immunity is rooted in the same principles of executive privilege -- it's been asserted by all presidents since the 1970s, and that was the basis on which a number of the advisors whose pictures they put up were directed not to testify.

Did they try to challenge that in court (ph)? Did they go to court on that one? Did they try to go through the constitutionally mandated accommodations process to see if there was a way to come up with some aspect of testimony (inaudible) -- no, none of that.

They just wanted to forge ahead, rush through the process, not have the evidence and then use that as another charge in their charging sheet for the impeachment, calling it obstruction of Congress.

And what that is, as Professor Turley explained, this idea that when there's a conflict between the Executive branch and the House, and seeking information -- and the president is asserting constitutionally-based privileges, that's part of the operation of separation of powers -- that is the president's constitutional duty to defend the prerogatives of the office, for the future occupants of that office.

And it is not something that can be charged as an impeachable offense as the House Democrats have tried to say here. To do that, is an abuse of power -- that's what Professor Turley explained, it's Congress' -- it's the House Democrats abuse of power.

We just heard manager Lofgren refer to executive privilege as a distraction -- she was asserting that these issues of executive privilege are just a distraction that shouldn't roll things up.

This is what the Supreme Court has said about executive privilege in Nixon versus United States, that the protections for confidentiality and executive privilege are, "fundamental to the operations of government, and inextricably rooted in the separation of powers under the Constitution."

"Inextricably rooted in the separation of powers," that's why it's the president's duty to defend Executive branch confidentiality interests and that is what the president was doing here.

Now, the process that they pursued in the House abandoned any effort beyond issuing the first subpoena that was invalid, to work out an accommodation with the White House and instead just tried to rush ahead to have the impeachment done by Christmas. What does that lead to now? They're coming to this body after a process that was half- baked, that didn't compile a record sufficient to support their charges, and asking this body to do their job for them.


Now, as Leader McConnell pointed out in some comments earlier today, to allow that -- to accept the idea that the House can bring an impeachment here that is not adequately supported, that has not been investigated, that has not got a record to support it -- and to turn this body in to the investigatory body would permanently alter the relationship between the House and the Senate in impeachment proceedings.

It's not the role of the Senate to have to do the House's job for them. It's not the role of the Senate to be doing an investigation, and to be doing discovery in a matter like the impeachment of a president of the United States. If the House has not done the investigation and cannot support its case, it's not the time once it arrives here to start doing all that work.

That's something that's the House's role, so -- this is something that is important for this institution, I believe, not to allow the House to turn it in to a situation where this body would have to be doing the House's work for it. If there is not evidence to support the case, if they haven't done their investigation then they're not going to be able to do support their case.

Again, what's at issue here -- and I think it's important to recall on the issue of this amendment -- is not whether the Senate, whether this body will be considering whether there should be witnesses or not, but when that should be considered. And there is no reason not to take the approach that was done in the Clinton impeachment.

A hundred Senators agreed then that it made sense to hear from both sides before making a determination on that -- to hear from both sides to see what sort of case the House could present in the president's defense -- and that makes sense.

In every trial system there is a mechanism for determining whether the parties have actually presented a triable issue -- whether there is really some there (ph) there that requires the further proceedings, and this body should take that commonsense approach and hear what it is that the House managers have to say, why are they afraid to present their case?

They had weeks in a process that they controlled to compile their record, and they should be able to make that presentation now. And the one point that I will close on -- we've heard manager Schiff say several times that it -- we have to have a fair process here, and I was struck by it that at one point he said if you allow only one side to present evidence the outcome will be predetermined -- the outcome will be predetermined.

That's exactly what happened in the House, let's recall that the process they had in the House was one-sided. They locked the president and his lawyers out -- there was no due process for the president, they started with secret hearings in the basement, the President couldn't be present by his counsel he couldn't present evidence, he couldn't cross examine witnesses.

And then there was a second round in public where again they locked the President out and we've heard they just said that the President had an opportunity to participate. In the third round of hearings that they held before the Judiciary Committee after one hearing on December 4th, Speaker Pelosi on the morning of December 5th went out and announced the conclusion of the Judiciary Committee proceedings.

She announced that she was directing Chairman Nadler to draft articles of impeachment. That was before the day that they had set for the President even to tell them what rights he wanted to have in to exercising their proceedings. It was all already predetermined. The outcome had been predetermined. The Judiciary Committee had already decided it was not going to have any fact hearings. There was no process for the President. He was never allowed to participate.

So when Chairman Schiff says here that if you only allow one side to present evidence that predetermines the outcome. That's what they did in the House because they had a predetermined outcome there because it was all one sided and for him to lecture this body now on what a fair process would be takes some gull (ph).

A fair process would be when you come to the day of trial be ready to start the trial and present your case, not ask for more discovery. The President is ready to proceed and the House Managers should be ready to proceed and this amendment should be rejected. Thank you.


CHAIRMAN: Counsel, the House Managers have eight minutes remaining.

LOFGREN: The House is certainly not asking the Senate to do the Houses job. We're asking the Senate to do its job, to hold a trial. Have you ever heard of a trial that doesn't have evidence, that doesn't have witnesses? That's what this amendment is all about.

Just a moment about the subpoenas. The President - President Trump refused to provide any information to the House, ordered all of his people to stone wall us. Now it's been suggested that we should spend two or three years litigating that question. I was a young law student, actually, working on the Nixon impeachment many years ago and I remember the day that the Supreme Court issued its unanimous decision that the President had to release the tapes.

I think US v. Nixon still governors the President. The House and the Senate should not be required to litigate US v. Nixon back to the Supreme Court and down again for it to be good law. It is good law. The President has not complied with those requirements - the detriment of the truth.

This isn't about helping the House. This isn't about helping the Senate. This is about getting to the truth and making sure that in partial justice is done and that the American people are satisfied that a fair trial has been held. I would yield now to my colleague Mr. Schiff.

SCHIFF: Mr. Philbin says that the House is not ready presents its case. Of course that's not something you heard from any of the managers. We are ready. The House calls John Bolton. The House calls Mick Mulvaney. Let's get this trial started, shall we. We are ready to present our case. We are ready to call our witnesses. The question is will you let us? That is the question before us.

And Mr. Philbin says, well if I showed up in court and said I wasn't ready the Judge would throw me out of the court. Of course we're not saying we're not ready but do you know what will happened if Mr. Philbin went into a court and the Judge said, I've made a deal with the defendant, I'm not going to let the prosecutor call any witnesses, I'm not going to let the prosecutor present any documents. You know who'd get thrown out of the court? The Judge. The Judge would be taken out in handcuffs.

So let's step out of this body for a moment and imagine what a real trial would look like. It would begin with the government receiving documents, being able to introduce documents, being able to call witnesses. This trial should be no different. Now Mr. Philbin makes reference to the Cipollone letter on October 18th which followed a Cipollone eight page letter on October 8th saying we're not going to do anything you ask.

Law part diatribe, mostly diatribe. You should read it. It's a letter basically that says what the President said on that TV screen which is we're going to fight all subpoenas. The Doctrine of Absolute Immunity the counsel refers to has yes, it has been invoked or at least attempted by presidents of both parties and rejected uniformly by the courts including in the most recent decision involving Don McGahn, the President's former White House counsel where the court said that would make him a king, he's no king and this trial has determined that he shall not become a king accountable to no one, answerable to no one.

And what's more this idea of absolute immunity, this fever dream of presidents of both parties it has no application (ph) to documents. Again, this amendment is on documents. There's no absolute immunity from providing documents and as representative of Lofgren illustrated when this case had gone to the Supreme Court in the Nixon case the court held that the interest in confidentiality in an impeachment proceeding must give way to the interests of the truth and the Senate and the American people. You can not invoke privilege to protect wrong doing. You can not invoke privilege to protect evidence of a constitutional crime like we have here.

And finally, with respect to those secret hearings that counsel keeps referring to, those secret deposition in the House -