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The Impeachment Trial Of Donald J. Trump; Senate Voting On Tabling Amendment To Subpoena State Department Documents. Aired 6-7p ET

Aired January 21, 2020 - 18:00   ET



REP. VAL DEMINGS (D-FL): Any such suggestion is meritless. To start, the Constitution has never been understood to require such lawsuits -- which has never occurred -- it's never occurred in any previous impeachment. Moreover the president has repeatedly, and strenuously argued that the House is not even allowed to file a suit to enforce its subpoenas.

And under (ph) the Freedom of Information Act cases, the administration has only grudgingly and slowly produced an extremely small set of materials -- but has insisted on applying and dubious redactions.

FOIA lawsuits filed by third-parties cannot serve as a credible alternative to Congressional oversight -- in fact, it is still alarming that the administration has produced more documents pursuant to the federal office of information act lawsuits by private citizens and entities than Congressional subpoenas.

Finally, as we all know litigation would take an extremely long time -- likely years, not weeks or months. While the misconduct of this president requires immediate attention. The misconduct of this president requires immediate attention. If this body is truly committed to a fair trial, it cannot let the president play a game of keep-away and dictate what evidence the Senators can and cannot see bearing on his guilt or innocence.

This body cannot permit him to hide all the evidence while disingenuously insisting on lawsuits that he doesn't actually think we can file -- ones that he knows won't be resolved until after the election he is trying to cheat to win.

Instead to honor your oaths to do impartial justice, we urge each Senator to support a subpoena to the State Department, and that subpoena should be issued now at the beginning of the trial rather than at the end, so these documents can be reviewed and their importance weighed by the parties, the Senate, and by the American people.

That is how things work in every courtroom in the nation, and it is how they should work here, especially because the stakes, as you all know, are so high. The truth is there, facts are stubborn things -- the president is trying to hide it. This body should not surrender to his obstruction by refusing to demand a full record. That is why the House managers support this amendment. And Mr. Chief Justice, the House managers reserve the balance of our time.

ROBERTS: Mr. Cipollone?

CIPOLLONE: Thank you, Mr. Chief Justice. In the interest of time, I won't repeat all of the arguments that we've made already with respect to these motions. I would say one thing before I turn it over to my co-counsel.

Mr. Schiff came here and said he's not asking you to do something he wouldn't do -- do for himself and the House managers said we're not asking you to do our jobs for us. And Mr. Schiff came up here and he said "I call Ambassador Bolton." Remember Paul Harvey? It's time for the rest of the story. He didn't call him in the House, he didn't subpoena Ambassador Bolton in the House.


I have a letter here from Ambassador Bolton's lawyer. He's the same lawyer that Charlie Kupperman hired. It's dated November 8th. He said "I write as counsel to Dr. Charles Kupperman and to Ambassador John Bolton in response to one, to the letter of November 5th from Chairman Schiff, Chairman Engel and Acting Chair Maloney, the House chairs, withdrawing the subpoena to Dr. Kupperman" -- I mentioned that earlier -- "and two recent published reports announcing that the House chairs do not intend to issue a subpoena to Ambassador Bolton."

He goes on and said we -- says "we are dismayed that the committees have chosen not to join us in seeking resolution from the Judicial Branch of this momentous constitutional question." And he ends the letter by saying "if the House chooses not to pursue through a subpoena the testimony of Dr. Kupperman and Ambassador Bolton, let the record be clear, that is the House's decision and they made that decision."

They never subpoenaed Ambassador Bolton, they didn't try to call him in the House and they withdrew the subpoena for Charles Kupperman before the judge could rule and they asked that the case be mooted. And now they come here and they ask you to issue a subpoena for John Bolton. It's not right.

I yield the remainder of my time to Mr. Sekulow.

SEKULOW: Mr. Chief Justice, members of the Senate, managers (ph) said "facts are a stubborn thing." Let me give you some facts. It's from the transcripts. Ambassador Sondland actually testified unequivocally that the President did not tie aid to investigations. Instead, he acknowledged any leak he suggested was based entirely on his own speculation, unconnected to any conversation with the President.

Here's the question -- "what about the aid?" Ambassador Volker says that they were tied -- that the aid was not tied. Answer -- "I didn't say that they were conclusively tied, either. I said I was presuming it." Question -- "OK, and so the President never told you they were tied?" Answer -- "that is correct."

Question -- "So your testimony and Ambassador Volker's testimony is consistent and the President did not tie investigations -- aid to investigations?" Answer -- "that is correct." Ambassador Sondland also testified that he asked President Trump directly about these issues and the President explicitly told him that he did not want anything from Ukraine. "I want nothing, I want nothing, I want no quid pro quo, tell Zelensky to do the right thing." Similar comments were made to Senator Johnson.

Those are the facts -- stubborn, but that's the facts. No one is above the law. Here's the law -- as every member of Congress knows, undoubtedly aware, separate from even state secret privileges is the presidential communication executive privilege to communications and performance of a President's responsibilities.

The presidential communication privilege has constitutional origins, courts have recognized a great public interest in preserving the confidentiality of conversations that take place in the President's performance of his official duties because such confidentiality is needed to protect the effectiveness of the executive decision-making process. In (inaudible) cases, that was decided in the District of Columbia Court of Appeals.

The Supreme Court found such a privilege necessary to guarantee the candor of presidential advisors and to provide a President and those who assist him with freedom to explore alternatives in the process of ultimately shaping policies and making decisions and to do so in a way many would be unwilling to express except in private.

For these reasons, presidential conversations are presumably privileged. There's something else -- something else about this privilege. Communications made by presidential advisors, again quoting courts -- and by the way, lawyer lawsuits -- lawyer lawsuits? We're talking about the impeachment of a President of the United States, duly elected, and the members -- the managers are complaining about lawyer lawsuits? The Constitution allows lawyer lawsuits. It's disrespecting the Constitution of the United States to even say that in this chamber, lawyer lawsuits.

Here's the law -- communications made by presidential advisors in the course of preparing advice for the President come under the presidential communications privilege, even when these communications are not made directly to the President -- even when they're not made directly to the President, advisor to advisor.

Given the need to provide sufficient elbow room for advisors to obtain information from all knowledgable sources, the privilege must apply both to communications, which these advisors solicit and receive from others, as well as those they authorize themselves.

The privilege must also extend to communications authored or received in response to solicitation by members of a presidential advisor's staff since in many instances advisors must rely on their staffs to investigate an issue and formulate advice given to the President. Lawsuits, the Constitution, a dangerous moment for America when an impeachment of a President of the United States is being rushed through because of lawyer lawsuits. The Constitution allows it if necessary, the Constitution demands it if necessary. Thank you, Mr. Chief Justice.

ROBERTS: Ms. Demings, you have 13 minutes for a rebuttal. Mr. Schiff.

SCHIFF: Thank you, Mr. Chief Justice. Let me just respond to some of my colleagues points, if I can. First, Counsel said well, the House would like to call John Bolton but the House did not seek his testimony during its investigation.

Well first of all, we did. We invited John Bolton to testify and you know what he told us. I'm not coming and if you subpoena me I will sue you. That was his answer. I will sue you. Mr. Bolton is represented by the same lawyer who represents Dr. Kupperman who actually did sue us when he was subpoenaed.

So we know that John Bolton would make good on that threat. Now Mr. Sekulow says something about lawyer law suits. Now I have to confess I wasn't completely following the argument.

But something about lawyer law suits. That we're against lawyer law suits. Well, I don't know what that means but I can tell you this, the Trump Justice Department is in court in that case and other cases arguing Congress cannot go to court to enforce its subpoenas.

So when they say something about lawyer law suits and they say there's nothing wrong with the House suing to get these witnesses to show up and they should have sued to get them to show up, their own other lawyers are in court saying the House has no such right.

They're in court saying you can't have lawyer law suits. So that argument cannot be made in both directions. What's more, in the Kupperman litigation -- I'm sorry -- in the McGhan litigation, which tested this same bogus theory of absolute immunity, in that lawsuit once again involving the president's lawyer, Don McGhan, the one who was told to fire the Special Council and then to lie about it.

That lawsuit, to get his testimony. Judge Jackson ruled on that very recently when they made the same bogus claim, he's absolutely immune from showing up and the judge says that's nonsense. There's no support for that, not in the Constitution, not in the case law that is made out of whole cloth.

But you know the judge said something more that was very interesting because what we urged John Bolton's lawyer is you don't need to file a lawsuit. Dr. Kupperman, you don't need to file a lawsuit, there's one already filed involving Don McGhan that's about to be decided.

So unless your real purpose here is delay -- unless your purpose here it to avoid testimony and you just wish to give the impression of a willingness to come forward, you just want to have the courts blessing, if that's really true, agree to be bound by the McGhan decision. Well of course, they were not willing. Because they didn't want to testify. Now for whatever reason, John Bolton is now willing to testify. I don't know why that is. Maybe it's because he has a book coming out.

Maybe it's because it will be very hard to explain why he was unwilling to share important information with the senate the he could show up for a House deposition or interview because he would need court permission to do it but he could put it in a book.

I don't know. I can't speak to his motivation. But I can tell you he's willing to come now if you're willing to hear him. But of course, they weren't willing to be bound by that court decision in McGhan but the court said something very interesting.

Because one of the arguments they had been making, one of the arguments that John Bolton's lawyer had been making as to why they needed their own separate litigation was well, John Bolton and Dr. Kupperman, they're national security people and Don McGhan is just the White House Counsel.

No offense to the White House Counsel but apparently you have nothing to do with national security. And so they couldn't be bound by what the court and the McGhan case said.

Well, the judge in the McGhan case said this applies to national security stuff too. So we do have a court decision and once more we have the court decision, the Harriet Miers case in the George W. Bush administration where likewise the court made short shrift of this claim of absolute, complete, and total immunity.

Now there were also comments made about Ambassador Volker's testimony by Mr. Sekulow. And it was along these lines; Master (ph) Volker said the president never told him that the aid was being conditioned or the meeting was being conditioned on Ukraine doing the sham investigation.

So well, I guess that's case closed unless the president told everyone, called them into their office and said hey, I'm going to tell you now and then I'm going to tell you now. If he didn't tell everyone, I guess it's case closed.

Well, you know who the president did tell, among others, he told Mick Mulvaney. Mick Mulvaney went out on national television and said yes, they discussed it, this investigation, this Russian narrative that it wasn't Ukraine that invented in 2016, it was Russia. I'm sorry, it wasn't Russia it was Ukraine.

Yes, that bogus 2016 theory; yes, they discussed it. Yes, that was part of the reason they withheld the money. And when a reporter said well, you're kind of describing a quid pro quo. His answer was yes, get used to it -- or get over it. We do it all the time.

Now they haven't said they want to hear from Mick Mulvaney, I wonder why. The president did talk to Mick Mulvaney about it. Wouldn't you like to hear what Mick Mulvaney has to say. I mean if you really want to get to the bottom of this, if they're really changing the fact that the president conditioned $400 million of military aid to an ally at way, if Mick Mulvaney has already said publicly that he talked to the president about it and this is part of the reason why, don't you think you should hear from him.

Don't you think impartial justice requires you to hear from him. Now, Counsel also referred to Ambassador Sondland and Sondland saying well, the president told me there was no quid pro quo.

Now of course at the time the president said to Sondland, no quid pro quo, he became aware of the whistleblower complaint. Presumably by Mr. Cipollone. And so the president knew that this was going to come to light on the advice of apparently Mr. Cipollone or maybe others, the director of National Intelligence for the first time in history withheld a whistleblower complaint from Congress, its intended recipient.

But none the less, the White House was aware of that complaint. We launched our own investigations. Yes, they got caught and in the midst of being caught what does he say. It's called a false exculpatory, for those people at home that's a fancy word of saying it's a false, phony alibi.

No quid pro quo. He wasn't even asked the question, was there a quid pro quo. He just blurted it out. That's the defense that the president denies it. And what's more interestingly he didn't tell you about the other half of that conversation where the president says no quid pro quo.

He says no quid pro quo but Zelensky needs to go to the mic and he should want to do it. Which is the equivalent of saying no quid pro quo except the quid pro quo. And here's what the quid pro quo -- is he needs to go to the mic and he should want to do it.

That's their alibi. They didn't also mention, of course -- and you'll hear about this during the trial if we have a real trial -- Ambassador Sondland also said that we're often asked was there a quid pro quo; the answer is yes, there was a quid pro quo -- there was an absolute quid pro quo, and what's more, when it came to the military aid it was as simple as two plus two. Well, I'll tell you something, we're not the only people who can add up two plus two -- there are millions of people watching this, can add up two plus two also.

When the president tells his Chief of Staff we're holding up the aid because of this, as the Chief of Staff admitted. When the president gives no plausible or other explanation for holding up aid that you all and we all supported and voted on in a very bipartisan way, has no explanation for it.

When in that call he never brings up corruption, except the corruption he wants to bring about. It doesn't take a genius, it doesn't take Albert Einstein to add two plus two -- it equals four, in this case it equals guilt.

Now you're going to have 16 hours to ask questions, you're going to have 16 hours -- that's a long time to ask questions. Wouldn't you like to be able to ask about the documents in that 16 hours? Would you like to be able to say, the council for the president -- what did Mick Mulvaney when he e-mailed so and so and said such and such? What's your explanation for that?

Because that seems to be pretty damning evidence of exactly what the House is saying here, what's your explanation to that Mr. Sekulow? What's your explanation -- wouldn't you like to be able to ask about the documents? Or ask the House, Mr. Schiff, what about this text message?

Doesn't that suggest such as (ph) that the president is arguing -- wouldn't you like to be able to ask me that question, or my colleagues? I think you would -- I think you should, but the backwards way this resolution is drafted, you get 16 hours to ask questions about documents you've never seen.

And you know what's more? If you do decide at that point, after the trial is essentially over, that you do want to see the documents after all -- and the documents are produced, you don't get another 16 hours -- you don't get 16 minutes, you don't get 16 seconds to ask about those documents, does that make any sense to you? Does that make any sense at all?

Tell you something I'd like to know, that may be in the documents -- you've probably heard about -- you know more (ph) about the three amigos. My colleagues mention two of the three amigos -- amigo Volker, and amigo Sondland -- these are two of the three people that the president put in charge of Ukraine policy. The third amigo is Secretary Rick Perry, the former Secretary of Energy.

But (ph) we know from amigo Sondland's testimony that he was certainly in the loop that knew exactly all about this scheme, and we know from Ambassador Volker's testimony, and his text messages, and his WhatsApps that that amigo was in the loop.

What about the third amigo? Wouldn't you like to know if the third amigo was in the loops. Now as my colleagues were explaining (ph) when we get to the Department of Energy Records, that well, surprisingly we didn't get those either.

But any communication between the Department of Energy and the Department of State is covered by this amendment -- wouldn't you like to know? Don't you think the American people have a right to know what the third amigo knew about this scheme? I'd like to know. I think you should be able to ask questions about it in your 16 hours.

At the end of the day, I guess I'll finish with something Mr. Sekulow said, he said this was a dangerous moment, because we're trying to rush through this somehow. It is a dangerous moment, but we're not trying to rush through this trial, we're actually trying to have a real trial here -- it's the president that's trying to rush through this.

And I have to tell you that whatever you decide here, and maybe this is wasted breath -- and maybe it's already decided -- but whatever you decide here, I don't know who the next president's going to be -- maybe it'll be someone in this chamber.

But I guarantee you this, whoever that next president is whether they did something right or they did something wrong, there's going to come a time where you in this body are going to want to subpoena that president and that administration.

You're going to want to get to the bottom of serious allegations -- are you prepared to say that that president can simply say, I'm going to fight all subpoenas, are you prepared to say and accept that president saying, I have absolute immunity, you want me to come testify? Senator, do you want me to come testify? No, no -- I have absolute immunity, you can subpoena me all you like, I'll see you in court.

And when you get to court I'm going to tell you, you can't see me in court. Are you prepared for that? That's what the future looks like. Don't think this is the last president, if you allow this to happen, that's going to allow this to take place.

G. ROBERTS: Your time is expired.

SCHIFF: I yield back, I thank you.

G. ROBERTS: The majority leader is recognized.

MCCONNELL: Table the amendment (ph).

G. ROBERTS: The question is on the motion to table.

MCCONNELL: As to the ayes and nays (ph).

G. ROBERTS: Is there a sufficient second? There is, the Clerk will call the role.

CLERK: Mr. Alexander.


CLERK: Ms. Baldwin.


CLERK: Mr. Barrasso.


CLERK: Mr. Bennet.


CLERK: Ms. Blackburn.


CLERK: Mr. Blumenthal.


CLERK: Mr. Blunt.


CLERK: Mr. Booker.


CLERK: Mr. Boozman.


CLERK: Mr. Braun.


CLERK: Mr. Brown.


CLERK: Mr. Burr.

BURR: Aye (ph).

CLERK: Ms. Cantwell.


CLERK: Ms. Capito.


CLERK: Mr. Cardin.


CLERK: Mr. Carper.





WOLF BLITZER, CNN HOST: All right, so this is the second roll call of this trial, the effort to subpoena certain Department of State documents and records.

They're going through alphabetical order. All 100 U.S. senators are there, yeas and nays.

There are 53 Republicans, 47 Democrats -- 45 democrats, two independents. The first amendment failed, introduced by the Senate majority -- the

minority leader. That failed to get White House documents, this one State Department documents.

Now we're being told, Jake, there's a third -- there's a third resolution, a third amendment that's about to come forward after this one. Presumably, this one will fail as well, 53-47, strictly along party lines.

That will be for Office of Management and Budget records.


We expect this amendment -- this is Chuck Schumer, the Senate Democratic leader, the minority leader from New York, trying to force a vote on the matter of whether or not there should be new evidence.

In this case, it would be evidence from the State Department. And there was a -- one of the House impeachment managers, Congresswoman Val Demings, a Democrat from Florida, made the case about all the different pieces of evidence that were alluded to in the House impeachment hearings, but we never actually got to see a copy of, including a memo written from the top diplomat in Ukraine, former Ambassador Bill Taylor, to the secretary of state, Mike Pompeo, expressing his alarm on some of the goings-on.

We never got to see that. We never got to see a response from Secretary Pompeo, and on and on.

But it looks as though it's going to fail by a party-line vote. This is a motion right now from the Senate majority leader, the Republican Mitch McConnell, to table Schumer's amendment.

As you said, Wolf, it was a party-line vote to table the amendment to subpoena White House documents. This will be a party-line vote, in all likelihood, to table subpoenas to obtain State Department documents.

And we're going to see the same thing, I'm sure, with Office of Management and Budget documents.

BLITZER: Same thing.

Dana Bash is up on Capitol Hill, as we await the final roll call result.

Dana, what are you hearing?

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: Well, I just want to give you a little bit of color.

I went into the Senate chamber to listen and watch how the senators were acting and reacting.

And it really is kind of a remarkable thing to see all these senators, who were used to, when they're here doing their job, even when they're having a vote, milling around on the floor, just sitting quietly. There was some breaking of the rules. People were kind of whispering

to each other, but no electronics. Several of the senators -- particularly, I was watching closely Cory Gardner, who is probably up for the toughest reelection bid this year, taking copious notes.

Same with Susan Collins and others. It's a long day. And you could almost -- you could start to see it wearing on them.

And I'm starting to think about how this is going to go for many, many days, as they start to -- as they continue to try to consume the information that is coming at them, considering the fact that we are not there yet.

I mean, yes, you're hearing the arguments that the managers and the and the defense counsel is making, but in large -- large part, it's about the process still. And that's what we're seeing now.

And there's going to be probably several hours left today on the next amendment that Jake just talked about that Schumer is going to put up.

BLITZER: Yes, that's going to be on the documents that they want from the Office of Management and Budget.

And then they will have two hours, Dana, to...

BASH: That's right.

BLITZER: ... debate that as well, an hour for each side.


So, this could -- could go on for quite a while.

BASH: Exactly.

And the thing to keep in mind is that we know how it is going to turn out. Since the very first vote, even before that, it was clear that this is shirts and skins time on a procedural measure particularly since the Republicans who were not happy about the way that the Senate majority leader had originally laid out the plans and the rules of the road for this trial. He changed, he conceded some points in order to accommodate the concerns that you heard loud and clear. It was scrambled then changed.

So given that, we're going to see several votes on a party line vote, and so the question is going to be for Democratic Leader Chuck Schumer and other how many of these votes are they going to want their colleagues to take until the point is made.

TAPPER: All right. Dana Bash, thank you so much.

And, yes, this is a question of process. But, Jeffrey Toobin, this is also a question about the legislative branch provides oversight of the executive branch and the legislative branch has an opportunity to get documents here, documents relevant to whether or not the president was abusing his power. And the legislative branch, yes, they're doing so in a party line vote but they're voting to not execute those checks and balances.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Indeed. And I thought the most --

BLITZER: Looks like that roll call is about to be announced.


If not, the yays are 53 and nays 47. The motion to table is agreed to.

TAPPER: There we go, exactly another party line, 53 Republicans voting to table the Democratic notion.


ROBERTS: The Democratic leader is recognized.

SEN. CHUCK SCHUMER (D-NY): Mr. Chief Justice, I send an amendment to the desk to subpoena certain Office and Management and Budget documents, and I ask that it'd be read.