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The Fourth Day in President Donald Trump's Impeachment Trial. 4:30-5pm ET

Aired January 24, 2020 - 16:30   ET



He called it a witchhunt, a coup, an unconstitutional power grab, a fraud against the American people. He said it's the phony impeachment scam, the phony impeachment hoax, the Ukraine hoax, and a continuation of the greatest scam in witchhunt in the history of our country.

And those are probably some of the ones that can repeat here. And it didn't stop. The attacks did not end there. President Trump turn from rhetoric to action.

On October 8th, the White House sent a letter to Speaker Nancy Pelosi informing her that President Trump would seek to completely obstruct the impeachment inquiry. They sent this letter, White House stationery. I shouldn't say this but I'm a lawyer but very lawyerly, it's an eight-page letter, lawyers can't do one thing in one page. We got to do seven or eight.

This was eight pages and it's long and, no worries, I'm not going to read it all. I just want to get to the bottom line. It says President Trump cannot permit his administration to participate in this partisan inquiry under the circumstances.

He was just saying we're not going to cooperate and the letter is dated, again, October 8th and it's signed by Pat Cipollone who is here, of course, with us today as the lead counsel for the President.

The President did not make any claim of privilege. The President did not make any attempt to compromise. He had no valid excuse. And although we're all too familiar with President Trump's rhetoric and rants, these words in this letter on White House stationery signed by his lead counsel here today have consequences.

These words had consequences. They were more than just ink on a page. They were more than just eight pages of words.

In the days that followed, President Trump's agencies and officials followed his order to conceal information from Congress. Over the past few days, you've heard in extensive detail from all of us about some of the specific and incriminating documents that the President has withheld from Congress.

But, again, here's the bottom line, the House investigating committees sought a total of 71 specific categories of documents from six different agencies and offices. President Trump blocked every single one of these requests. All of them.

Between September 27 and October 10, the investigating committee issued subpoenas to the Department of State, to the White House, the Office of Management and Budget, Department of Defense and the Department of Energy. The committees always remain open to working with the Executive Branch to discuss and prioritize the subpoenas.

Some agencies initially suggested that they might comply. For example, a few days after receiving the subpoena, the Department of State sent staff and reached out to the committee to, quote, "discuss accommodations." As you all know, the accommodation process is when Congress and the Executive Branch discuss priorities and concerns so that the committee gets what it needs most efficiently while minimizing any burden to the agency.

So, on October 7th, the committee staff met with State Department officials. During that conversation, the committee made a good-faith attempt to engage the Department in negotiations.


To start, the committees requested that the Department prioritize the production of a narrow set of nonprivileged documents. The Department representatives stated that they would take the request back to senior State Department officials.

But that was the end. That was the end. Those priority documents were never provided to the committees.

In addition to the State Department, the Department of Defense also showed an initial interest in cooperating. During an October 13 television appearance, Secretary of Defense Mark Esper stated repeatedly that the Department of Defense would seek to comply. He said on air, on TV, that they would seek to comply with the subpoenas.

In an exchange on "Face the Nation" he was specifically asked, question, very quickly, are you going to comply with a subpoena that the House provided you and provide documents to them regarding to the halt to military aid to Ukraine? Answer from the Secretary, yes, we would do everything we can to cooperate with the Congress. Just in the last week or two, my general counsel sent out a note as we typically do in these situations to ensure documents are retained.

But, again, the question is, is that a yes? Answer by the Secretary, that's a yes. Question, you will comply with the subpoena? Answer again by the Secretary, we will do everything we can comply. These are his very own words. We will -- we can comply -- we can comply.

But remember, that October 8th letter from the White House counsel sent to the Speaker stating that the President's position of total defiance. President Trump -- again, I'll quote it, had said, "President Trump cannot permit his administration to participate in this partisan inquiry under these circumstances."

So, every department, every office, top to bottom, of the Executive Branch was under these instructions. That is about 2 million public servants, top to bottom. The Executive Branch all ordered by President Trump not to provide information to Congress.

The President offered no accommodation and no opportunity for negotiation. Ultimately, each agency and office followed the President's order. In response to each subpoena, the Trump administration produced no documents. Nothing. Nada.

And the agencies and offices make clear that it was due to the President's instructions. They always deferred to that October 8th letter. For example, despite the Secretary's initial signal of cooperation, I gave you the quote when he was asked specifically on TV, he said they would try to cooperate. But despite that, the Department of Defense later refused to respond to the committees' subpoena.

In a letter to the committees, the Department of Defense echoed many of the White House's unsupported legal arguments and concluded, I quote, "In light of these concerns and in view of the President's position as expressed in the White House Counsel's October 8 letter, and without waiving any other objections to the subpoena that the Department may have, the Department is unable to comply with your request for documents at this time."

Again, on a TV interview, on "Face the Nation," they tried to ask him again. So, when asked by Chris Wallace on Fox News, question, and but you -- but do you feel Congress has the right to oversight and to be able to see documents from the Pentagon about a program that was approved by Congress? Answer, well, they do, but provided it's done in the right way and proper way. And I think that was the issue.


Again, I think my reputation is pretty good in terms of being very transparent. I like to communicate with members of Congress. But in this case, there were -- my recollection is that they were technical and legal issues that prohibited us from doing exactly what was requested by Congress.

So, he said he would try to cooperate to seek to comply but now they're backpedaling. But, Senators, there was no valid technical or legal arguments. None were put forth to justify the stonewalling of the impeachment inquiry.

The documents President Trump is withholding are highly relevant, responsive and would further our understanding of the President's scheme.

Here is just a sampling of the documents we know exist that are currently being withheld. National Security Adviser John Bolton's notes, Ambassador Taylor's first-person cable to Secretary Pompeo, emails between OMB and other agencies about the President's directive to place a hold on the Ukraine military aid, and the hundreds of heavily redacted documents that the administration now turned over to third parties under FOIA court orders.

Certainly, the documents released pursuant to the FOIA lawsuits were not subject to any claims of privilege or confidentiality or burden. The administration released them publicly. By contrast, the President turned over nothing in response to the House impeachment investigation. Now, Senators, there still is another component of the President's obstruction that I want all of us to focus on. Not only did the President block agencies and offices for producing documents, his administration also blocked current and former officials from identifying, producing or even reviewing relevant documents.

First, the Trump administration actively discouraged its employees from even identifying documents responsive to the committees' request. Deputy Assistant Secretary George Kent testified in his deposition that he informed the State Department attorney about additional responsive records that the Department had not collected.

According to Kent, the Department attorney, quote, "got very angry," end quote, objected to Kent raising of the additional information. He, quote, "made clear" that he did not think it was appropriate for Kent to make the suggestion.

So, here's a lawyer telling the witness don't say that. I'm just frankly isn't --again, a lawyer and former judge, I just can't believe something like this would happen. But Kent responded that he was just trying to, quote, "make sure that the Department was being fully responsive."

Second, the Trump administration refused to permit individual witnesses to produce relevant documents themselves. After the State Department failed to respond to voluntary requests for documents at the beginning of the investigation, the committee sent document request to six individual State Department employees.

Secretary Pompeo objected to the committee's request to state officials calling them, quote, "it's an act of intimidation and an invitation to violate federal court loss." He also claimed that the House inquiry, quote, "an attempt to intimidate, bully and treat improperly these distinguished professionals of the Department of State."

Now, we were the bullies. But let's be clear, his statement has been contradicted by actual State Department professionals from whom the committee sought documents.


Kent testified that he, quote, "had not felt bullied, threatened and intimidated by the House."

In fact, Kent said that the language in Secretary Pompeo's letter, which had been drafted by his State Department attorney, was without consulting Mr. Kent. He said, quote, "it was inaccurate." Inaccurate.

Then the State Department ordered witnesses to withhold documents from Congress. For example, on October 14, the Department sent a letter to Kent's personal attorney warning, quote, "your client is not authorized to disclose to Congress any records relating to official duties." Certain witnesses defied these orders and produced the substance of key documents providing critical insight into the President's scheme. Other witnesses produced documents to the Trump administration so they could be turned over to Congress.

But now, the administration is also sitting on those documents and is refusing to turn them over. Ambassador Taylor testified that he turned over documents to the Trump administration but to his knowledge, they had not been produced to the House. Let's watch.


QUIGLEY: Well, has any of the documents that you turned over, to your knowledge, been turned over to the committee?



GARCIA: Well, Senators, I will confirm, the committees have not seen, not one, of these documents. None.

Finally, if it could be any worse, well, it is. A Trump administration official Ambassador Sondland informed us that he was not even permitted to review his own relevant records in preparation for the testimony. Again, this would be his own records so that he could prepare to testify. So, let's watch.


SONDLAND: I have not had access to all of my phone records, State Department emails and many, many other State Department documents, and I was told I could not work with my EU staff to pull together the relevant files and information.

Having access to the State Department materials would have been very helpful to me in trying to reconstruct with whom I spoke and met and when and what was said. My lawyers and I have made multiple requests to the State Department and the White House for these materials. Yet, these materials were not provided to me and they have also refused to share these materials with this committee. These documents are not classified and in fairness -- and in fairness should have been made available.


GARCIA: Of course, we agree.

At President Trump's order, agencies and offices refused to produce documents in response to the committee's requests and they refused to allow individual witnesses to do so either.

So, let's recap. No documents, zero, goose egg, nada, in response to over 70 requests, 70 requests and five subpoenas. No attempt to negotiate. No genuine attempt to accommodate categorical, indiscriminate and unprecedented stonewalling. Again, never in my time as a lawyer or as a judge have I seen this kind of total disrespect in defiance of a lawfully issued subpoena and all on President Trump's orders.

And it could continue because this obstruction of Congress is real and it's beyond, beyond comparison. This President should be removed.


LOFGREN: Mr. Chief Justice and Senators, let's turn to President Trump's efforts to stop witnesses from testifying. No other president facing impeachment has taken the extreme step to prohibit executive witnesses -- branch witnesses from testifying before Congress.

Even President Nixon who famously attempted to defy a subpoena for tape recordings of his conversations, he let his most senior staff testify before Congress. I remember listening on TV as John Dean testified before the Senate Watergate Committee. He was the President's lawyer. President Nixon didn't block him.

Not only did President Nixon allow his staff to testify before Congress. He publicly directed them to testify and without demanding a subpoena. Actually, with the Senate Watergate investigation, President Nixon said, and this is a quote, "all members of the White House staff will appear voluntarily when requested by the committee. They will testify under oath and they will answer fully all proper questions."

Now, compare to President Trump. He publicly attacked the House's impeachment inquiry calling it, quote, "constitutionally invalid"


and he ordered every single person working in the Executive Branch to defy the House impeachment inquiry.

As just discussed in the letter to the Speaker of the House, the White House counsel said that President Trump, quote, "cannot permit his administration to participate."

No president ever used the official power of his office to prevent witnesses from giving testimony to Congress in such a blanket and indiscriminate manner. There's no telling how many government officials would have come forward if the President hadn't issued this order.

Let's look at some of the witnesses who followed the President's orders. The House issued subpoenas to compel the testimony of three officials at the Office of Management and Budget, Acting Director Russell Vought, Associate Director Michael Duffey and Associate Director Michael (sic) McCormack.

Now, according to the testimony in the House, which was reinforced by emails, recently revealed through the Freedom of Information Act lawsuits, OMB was just sinful to the President's hold on security assistance to Ukraine. Its officials served as conduits for the White House to implement the hold without directly engaging the agencies that actually supported release of the aid. President Trump directed these three OMB officials to violate their legal obligation by defying lawful subpoenas and they followed his orders. This isn't just an argument. It's a fact.

In response to House subpoenas, the OMB sent a letter to Chairman Schiff refusing to comply and this is what the letter said, as directed by the White House Counsel's October 8, 2019 letter, OMB will not participate in this partisan and unfair impeachment inquiry.

In that simple statement, OMB admitted several key points. First, Mr. Cipollone's letter of October 8 was an official directive from the White House. Second, President Trump's blanket order applied to OMB and the three officials subpoenaed by the House. Third, President Trump's blanket order not only directed them to refuse to participate voluntarily, it also directed them to defy House subpoenas. Fourth, President Trump's blanket order directly prevented the three OMB officials from providing testimony to the House.

There's no question about the scope of President Trump's order. It was total. There's no question about the intent of the order. It was clearly understood by administration officials as shown by OMB. And there's no question the order had an impact. It directly prevented the House from getting testimony from the three senior officials at OMB.

So, here we are. The President of the United States issued an official order forbidding every single person who works with the Executive Branch of our government from giving testimony to the House as part of an impeachment investigation. That order prevented the House in getting testimony from witnesses who knew about the President's conduct.

The matter is simple. It's plain to see. The question we here in Congress must ask is whether we're prepared to turn a blind eye to a president's obstruction. Obstruction not only of oversight but also the power to determine whether Congress may gather evidence in an impeachment proceeding.

If the Senate is prepared to accept that, it will mean not -- that not only President Trump, all presidents after him will have veto power over Congress' ability to conduct oversight and the power of impeachment. The House was not prepared to accept that and that's why the House approved Article II.

As you consider what you think about this, please know that President Trump's blanket order was not the end of his campaign to obstruct the impeachment inquiry. Actually, it was just the beginning.

In addition to his total ban of government witnesses, President Trump also sent specific explicit orders. He directed key witnesses to defy subpoenas and to refuse to testify as part of the House's impeachment inquiry.

As you know, the House subpoenaed Acting White House Chief of Staff Mick Mulvaney. We wanted his testimony as. At a White House press briefing in October, I know you've seen it before, Mr. Mulvaney confirmed what we had suspected. Mr. Mulvaney admitted that President Trump withheld the aid to pressure Ukraine into announcing an investigation into the conspiracy theory that Ukraine interfered in the 2016 elections. Here's his words.


MULVANEY: Did he also mentioned to me in the past the corruption related to the DNC server? Absolutely. No question about that. But that's it and that's why we held up the money.


LOFGREN: After this really stunning admission, the House issued a subpoena to require Mr. Mulvaney to testify. But on the day of Mr. Mulvaney's scheduled deposition, the White House sent a letter to his personal attorney. It prohibited from obeying the subpoena and the letter said, quote, "The president directs Mr. Mulvaney not to appear at the committee's scheduled deposition."

When he issued this order, President Trump doubled down on this previous blanket order. He did so after the House voted to approve Resolution 660 which, in no uncertain terms, made clear that Mr. Mulvaney was being subpoenaed to testify in an impeachment investigation. This order was the first of many.

President Trump also ordered another White House official Robert Blair not to testify. Mr. Blair is Mr. Mulvaney's senior adviser and his closest aided. He was involved in communications about the hold on Ukraine aid.

The day after his initially scheduled deposition, Mr. Blair's personal attorney sent a letter to the House. It said, quote, "Mr. Blair has been directed by the White House not to appear and testify."

The House also wanted testimony from John Eisenberg, the senior attorney on President Trump's National Security Council. As you've heard over the past few days, key witnesses, including Dr. Hill, Lieutenant Colonel Vindman, said they were concerned by President Trump's efforts to pressure Ukraine. They were told to report these concerns to Mr. Eisenberg.

On the day before his scheduled deposition, the White House sent a letter to Mr. Eisenberg's personal attorney. It said, quote, "The President directs Mr. Eisenberg not to appear at the committee's deposition." Now, that language is starting to sound familiar.

Mr. Eisenberg's personal attorney then sent a letter to the House. The letter said this, Under these circumstances, Mr. Eisenberg has no other option that is consistent with his legal and ethical obligations except to follow the direction of his client and employer, the President of the United States. Accordingly, Mr. Eisenberg will not be appearing for a deposition at this time.

Now, that language I think is important and it's telling.