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The 8th Day in the Impeachment Trial of President Donald J. Trump. Aired 8-9p Et

Aired January 29, 2020 - 20:00   ET



CROW: Mr. Chief Justice, Senator, thank you for the question. He became concerned about corruption supposedly in early 2019 because Vice President Biden was running for an election for the presidency. That is what the overwhelming amount of the evidence shows because there's no other legitimate reason as your question points out.

First, the publicly released records of President Trump's April 21 and 25 calls with President Zelensky never mentioned the word corruption despite the fact that the talking points for these calls prepared by his own staff, listed corruption.

Second, in May 2019, the State and Defense Department certified the Congress Ukraine had, quote, "taken substantial actions for the purposes of decreasing corruption" and met the anti-corruption benchmarks this very body had established when it appropriated $250 million of those funds.

Third, by the time of the July 25th call, President Zelensky had already established his anti-corruption bona fides having introduced the number of reform bills in Ukraine.

Fourth, on July 26, the day after his call with President Zelensky, President Trump spoke to Ambassador Sondland who is in Ukraine. The one question then the President asked Ambassador Sondland was not about corruption but about whether or not President Zelensky was going to do the investigations.

Fifth, the released aid -- as your question points out, Senator, the President released the aid in 2017 and in 2018 and he released that in 2019 only after having gotten caught. In the words of Lieutenant Colonel Vindman and other witnesses, the conditions on the ground had not changed.

So, we're hearing a lot tonight about the concerns about corruption, Burisma, Russia. But the facts still matter here. We are here for one reason and one reason only. The President of the United States withheld foreign aid that was happy to give in the two prior years that suddenly we are to believe something changed, the conditions on the ground changed and he had an epiphany about corruption within a week of Vice President Biden announcing his candidacy.

It doesn't make any sense. And one other thing I will say with regard to the aid is this assertion that President Trump has been the strongest supporter of Ukraine and I talked about this earlier. Let's just assume that to be the case and if it is the case as the President's counsel has contended over and over again, then there is, of course, no reason to withhold the aid because nothing has changed.

This leads us inevitably only to one conclusion and that is that the President of the United States used taxpayer dollars, the American people's money, to withhold aid from an ally at war to benefit his political campaign. Do not be distracted by Russian propaganda, by conspiracy theories, by people asking you to look in other directions.

That is what this is about. That will not change. The facts will continue to come out whether this body subpoenas them or not. The facts will come out. The question now is will they come out in time and will you be the ones asking for them when you are going to be making the decision in a couple days to sit in judgment?

J. ROBERTS: Thank you, Manager.

JOHNSON: Mr. Chief Justice?

J. ROBERTS: Senator from Wisconsin

JOHNSON: I sent a question to the desk for the president's counsel.

J. ROBERTS: Thank you.

Question from Senator Johnson for the president's counsel. If House managers were certain it would take months to litigate a subpoena for John Bolton, why shouldn't the Senate assume lengthy litigation and make the same decision as the House made, reject the subpoena for John Bolton?


SEKULOW: Mr. Chief Justice, members of the Senate, I think that's precisely the point and the fact is that if in fact we are to go down that road of a witness or witnesses that had national -- in the case of Ambassador Bolton, high ranking NSA, this is an individual that's giving the president advice at the highest level, the Supreme Court has been very consistent on that, that's where privileges are at their highest level.

The presumed privilege, actually, is what the Supreme Court has said and in a situation like this, I think we're going down a road if the Senate goes this road of a lengthy proceeding was a lot more witnesses and then I want to ask this question and just plant it as a thought, is that going to be the new norm for impeachment?

You put an impeachment together in a couple weeks. We don't like what the president did. We get it through in a two-day proceeding in front of the Judiciary Committee. We wrap it up and we send it up here and say, now, go figure it out.

Because that's what this is really becoming, that's what this actually is. So, I think if we're looking at the institutional interests that are at stake here, this is a very dangerous precedent because what they're doing, what they're saying is basically, well, we have enough to prove our case, that's what Manager Schiff says, but not really.

So, we really need more evidence, not because we need it, because we want it. But we didn't want it bad enough when we were in the House so we didn't get it. So, now, you issued a subpoena and then let's do get out in court and see what happens.

Sounds like to me that this is -- they're acting like this is some municipal traffic court proceeding. I remind everybody that we're talking about -- under their articles of impeachment, they're requesting the removal of the President of the United States.

So, they are already saying in the media that there are ongoing investigations. They're going to continue to investigate. So, I could be -- are we going to be doing this every three weeks, every month except in the summer?

There's an election months away. The people should have the right to vote, my colleague Pat Cipollone, the way that counsel said that. So, I'm going to look at all of this whether it's the late need of witnesses after you said you proved your case, if it's how the privileges apply or not apply.

Senator Schumer said we get anybody want. We'd be here for a very, very long time and that's not good for the United States. Thank you.

J. ROBERTS: Thank you, counsel.

The Democratic Leader is recognized.

SCHUMER: I have a question.

J. ROBERTS: The question is for the House managers. Would you please respond to the answer that was just given by the president's counsel?

SCHIFF: I think we can all see what's going on here and that is if the House wants to call witnesses, if you want to hear from a single witness, if you want to hear what John Bolton has to say, we are going to make this endless.

We, the president's lawyers, are going to make this endless. We promise you, we're going to want Adam Schiff to testify. We're going to want Joe Biden to testify. We're going to Hunter Biden. We're going to want the whistleblower. We're going to want everyone in the world.

If you dare, if you have the unmitigated temerity to want witnesses in a trial, we will make you pay for it with endless delay. The Senate will never be able to go back to its business.

That's their argument. How dare the House assume there will be witnesses in a trial? Shouldn't the House have known when they undertook its investigation that the Senate was never going to allow witnesses? That this would be the first impeachment trial in the history of the republic with no witnesses? So, Mr. Sekulow wants me to testify. I like Mr. Sekulow to testify about his contacts with Mr. Parnas or Mr. Cipollone about the efforts to implement the President's fight on all subpoenas. I'd like to ask questions about -- well, I'd like to ask questions to the President and put him under oath.

But we're not here to indulge in fantasy or distraction. We're here to talk about people with pertinent and probative evidence and you know something, I trust the man behind me sitting way up who I can't see right now, but I trust him to make decisions about whether witnesses material or not, whether it's appropriate to out a whistleblower or not, whether to -- whether a particular passage in a


document is privileged or not.

It's not going to take months of litigation although that's what the president's counsel is threatening. They're doing the same thing to the Senate they did to the House, which is you try to investigate the president, you try to try the president, we will tie you and your entire chamber up in knots for weeks and months.

And you know something, they will if you let them. You don't have to let them. You can subpoena John Bolton. You can allow the Chief Justice to make a determination in camera whether something is relevant, whether it deals with Ukraine or Venezuela, whether it's privileged or it isn't, whether it's the privilege is being misapplied to hide criminality or wrongdoing.

We don't have to go up and down the courts. We've got a perfectly good chief justice sitting right behind me who can make these decisions in real time. So, don't be thrown off by this claim, if you even think about it, we are going to make you pay with delays like you've never seen. We're going to witnesses that will turn this into a circus.

It shouldn't be a circus. It should be a fair trial. You can't have a fair trial without witnesses, and I think when I was asked that question before, I answered at the affirmative, what I meant (ph) the negative. You can't have a fair trial without witnesses and you shouldn't presume that when the House impeaches, the Senate trials from now on will be witness free, will be evidence free.

That's not what the founders intended. If it was, they would have made you the Court of Appeals. But they didn't. They made you the triers of fact. They expected you to hear from witnesses. They expected you to evaluate the credibility.

Don't take my word for it about John Bolton. Look, I'm no fan of John Bolton although I like him a little more than I used to. But you should hear from him, you should want to.

Don't take General Kelly's view for it. Make up your own mind whether you believe him or Mick Mulvaney. Would you believe John Bolton or the President? Make up your own mind. Yes, we proved our case, counsel. We proved it overwhelmingly. But you chose to contest the fact that the President withheld military aid to coerce an ally. You chose to contest it. You chose to make John Bolton's testimony relevant, pertinent.

If you had stipulated the President did as he is charged, then you might make the argument that you're making here. But you have it, you've contested it. And now you want to say but the Senate shall not hear from this witness. That's not a fair trial. That's not even the appearance of fairness. You can't have a fair trial without basic fairness.

J. ROBERTS: Thank you, Mr. Manager.

CASSIDY: Mr. Chief Justice?

J. ROBERTS: The Senator from Louisiana?

CASSIDY: I sent a question to the desk on behalf of myself and Senator Risch. It should be both to the White House counsel and the House managers.

J. ROBERTS: Thank you. Question from Senator Cassidy and Senator Risch for both parties beginning with the president's counsel first. We saw a video of Mr. Nadler saying, quote, "there must never be a narrowly voted impeachment or an impeachment supported by one of our major political parties and opposed by the other. Such an impeachment will lack legitimacy, will produce divisiveness and bitterness in our politics for years to come and will call into question the very legitimacy of our political institutions. " End quote.

Given the well-known dislike of some House Democrats for President Trump and the stated desire, excuse me, of some to impeach before the President was inaugurated and the strictly partisan vote in favor of impeachment, do the current proceedings typify that which Mr. Nadler warned against 20 years ago?

PHILBIN: M. Chief Justice, Senators, thank you for the question. The simple answer is, yes, these are the exactly the sort of proceedings that Manager Nadler warned against 20 years ago. It is a purely a partisan impeachment and it has been clear that at least some factions on the other side of the aisle, on the democratic side of the aisle, have been intent on finding some way to impeach the President from the day he was sworn in and even before the day he was sworn in, and that's dangerous for our country.


To allow partisan venom and enmity like that to take hold and become the norm for driving impeachment is exactly what the framers warned against. It's in Federalist No. 65, Hamilton warned against it.

He warned against persecution by an intemperate and designing majority in the House of Representatives and that's exactly what the framers did not want impeachment to turn into. And yet, that is clearly what it is turning into here. And both Manager Nadler and Democratic Leader Schumer in the video that we saw were prescient and forewarning that if we start to go down this road, I mean, one thing that seems to be sure in Washington is that what goes around comes around. If it's done once to one party, it will happen again from the other party to the other party once the president -- the Office of the Presidency change hands and then we'll be in a cycle, it will get worse and worse and there will be more and more, and every president will be impeached.

That's not what the framers intended and this body shouldn't allow it to happen here. Thank you.

J. ROBERTS: Counsel?

JEFFRIES: The evidence is overwhelming that President Trump pressured foreign government to target an American citizen for personal and political gain as part of President Trump's corrupt effort to cheat and solicit foreign interference in the 2020 election.

There is a remedy for that type of stunning abuse of power and that remedy is in the Constitution. That remedy is impeachment and the consideration of removal, which is what this distinguished body is doing right now. That's not partisan. That's not the Democratic Party playbook. That's not the Republican Party playbook. That is the playbook in a democratic republic given to us in a precious fashion by the framers of the Constitution.

The impeachment in this instance, of course, in the consideration of removal, is necessary because President Trump's conduct strikes at the very heart of our free and fair elections. As North Carolinian Delegate William Davie noted at the Constitutional Convention, quote, "if he be not impeachable while in office, he will spare no efforts or means whatsoever to get himself reelected."

The framers of the Constitution understood that perhaps this remedy would one day be necessary. That is why we are here right now. The American people should decide in a American election. Not the Ukrainians. Not the Russians. Not the Chinese. The American people.

That is why this President was impeached. That is why it's appropriate for Democrats and Republicans, both sides of the aisle, not as partisan as Americans, to hold this President accountable for his stunning abuse of power.

J. ROBERTS: Thank you, Mr. Manager.

SANDERS: Mr. Chief Justice?

J. ROBERTS: Senator from Vermont?

SANDERS: I sent a question to the desk for the House managers.

J. ROBERTS: Thank you.

Senator Sanders asked the House managers, Republican lawyers have stated on several occasions that two people, Senator Johnson and Ambassador Sondland, were told directly by President Trump that there was no quid pro quo in terms of holding back Ukraine aid in exchange for an investigation into the Bidens.

Given the media has documented President Trumps' thousands of lies while in offices, more than 16,200 as of January 20th, why should we be expected to believe that anything President Trump says has credibility?


SCHIFF: Well, I'm not quite sure where to begin with that question except to say that if every defendant in a trial could be exonerated just by denying the crime, there would be no trial, it doesn't work that way.

I think it's telling that when Ambassador Sondland spoke with President Trump, the first words out of his mouth, according to Sondland, were no quid pro quo. That's the kind of thing you do. You blurt out what you've been caught in the act and you say, it wasn't me, I didn't do it.

But even then the President couldn't help himself because the other half of that conversation was no quid pro quo but Zelensky needs to go to the mic and what's more he should want to. No quid pro quo but quid pro quo.

Now, this reminds me of something that came up earlier, why would the President when he's on the call on July 25th, knowing that there are other people listening, why on earth would the President engage in this kind of shakedown with others within earshot?

And I think this question comes up in almost every criminal trial, why would the defendant do that, and sometimes it's very hard to fathom. Sometimes, it's just people make mistakes.

But I think in the case of this president, he truly believes that he is above the law. He truly believes that he is above the law. Doesn't matter who's listening. It doesn't matter who's listening. If it's good for him -- this is I guess a version of the Dershowitz argument, if it's good for him, it's good for the state because he is the state.

If it helps his reelection, it's good for America. And whatever means he needs to effectuate his election whether it's withholding military aid or what have you, as long as it helps him get elected, well, it's good for America because he is the state.

This is why I think he is so irate when people come forward and blow the whistle, not just the whistleblower but people like John Bolton or General Kelly. You might ask the question, why do so many people who leave this administration, why do they walk away from this president with such a conviction that he is undermining our security that you cannot believe what he says.

I mean, think about this, the President's now former Chief of Staff General Kelly doesn't believe the President of the United States. He believes John Bolton. I mean, can everybody be disgruntled? Can it all be a matter of bias?

I think we know the answer. I think we know the answer. I mean, how do you believe a president that the "Washington Post" has documented so many false statements? The short answer is you can't deny. Remember, early in this presidency, many of us talked about how once as president you lose your credibility, once as president, your country or your friends or allies around the world, can't rely on your word, just how destructive and dangerous it is to the country.

And so, we can't accept the denial. It's a false denial. And indeed, if you look at that "Wall Street Journal" article that Senator Johnson was interviewed in when he had that conversation with Sondland and had that sinking feeling because he didn't want those two things tied together, everyone understood they were tied together. It was just simple as two plus two equals four.

So, can you rely on a false exculpatory? You can't with this president any more than you can't with an any other accused, and probably, given the President's track record, a lot less than other accused.


But at the end of the day, we have people with first-hand knowledge. You don't have to rely on his false exculpatory. You don't have to rely on Mick Mulvaney. He's recanting what you all saw so graphically on TV.

How does someone who say, without a doubt, this was a factor, this is why he did it, and by the way, Alan Dershowitz lost a criminal case in which he argued that if a corrupt motive was only part of the motive, you can't convict and the court said, yes, you can.

If a corrupt motive is any part of it, you can't convict. So, he's lost that argument before he makes that argument again before this court. It shouldn't be any more availing here than it was there.

At the end of the day though, there's no more interested party here than the President of the United States, and I think we have seen he will say whatever he believes suits his interest. Let's instead rely on the evidence and rely on others and one is just a subpoena away.

J. ROBERTS: Thank you, Mr. Manager.

GARDNER: Mr. Chief Justice?

J. ROBERTS: Senator from Colorado?

GARDNER: I sent a question to the desk.

J. ROBERTS: Thank you.

Question from Senator Gardner is for counsel to the president. Arguments have been made that any assertion of protection from disclosure is indicative of guilt and that the House's assertion of impeachment power cannot be questioned by the executive. Is that interpretation of the House's impeachment power consistent with the Constitution and what protects the executive from the House abusing the impeachment power in the future?

PHILBIN' Mr. Chief Justice and Senators, thank you for that question. The House managers' assertion that any effort to assert a privilege, assert a legal immunity to decline disclosing information somehow sign of guilt is not the law. It is actually fundamentally contrary to the law.

Legal privileges exist for a reason. We allow people to assert their rights. It's a basic part of the American justice system and asserting your rights, asserting privileges, immunities, due process rights even if it means limiting the information that might be turned over to a tribunal is not and cannot be treated as evidence of guilt.

And to the second part of the question as to the House managers' theory that the power of impeachment means that the president can't resist any subpoena that they issue pursuant to the power of impeachment is not consistent with the Constitution. The Constitution gives the House the sole power of impeachment, which means only that the House is the only place, the only part of the government that has that power.

It doesn't say that they have a paramount power of impeachment that destroys all other constitutional rights or privileges or immunities. It doesn't mean that executive privilege suddenly disappears.

And the House managers, a number of times, have cited Nixon versus United States or I might get it reversed now, United States versus Nixon. The case involving President Nixon in 1974, the Supreme Court determined that in that particular case, after a balancing of interests, assertions of executive privilege would have to give way. But it did not say that there is just an absolute blanket rule that any time there is an allegation of wrongdoing or that there is some impeachment going on in the background, executive privilege just disappears.

That is not the rule from that case. And in fact, even in that context, the court pointed out that there might be an absolute immunity or privilege in the field of foreign relations and national security, which is the field we're dealing with here.

The framers recognized that there could be partisan and illegitimate impeachments. They recognized that the House could impeach for the wrong reasons. They didn't leave the Executive Branch totally defenseless to that.

Executive privilege, immunities rooted in executive privilege such as the absolute immunity for senior advisers still applies even in the context of an impeachment. That's part of the checks and balances in the Constitution. They don't fall away simply because the House says, now, we want to proceed on impeachment.

It's necessary for the proper functioning of the government and the separation of powers for the Executive Branch to retain that ability, to protect confidentiality interest, to protect the prerogatives of the Office of the Presidency. And for any president to fail to assert those rights and to protect them would do lasting damage to the Office of the Presidency for the future.

And I think that's a critical point to understand that there is a danger in the legal theory that the House managers are proposing here because it would do lasting damage to the separation of powers to the structure of our government to have the idea be that as soon as the House flips the switch that they want to start proceeding on impeachment, the executive has no defenses and has to open every file and display everything.

That's not the way the framers had it in mind because the Executive Branch has to have still its defenses for its fear of authority under the Constitution. That's part of the checks and balances.


And before I sit down, I just like to close, going back to the senator who asked the question about the review process on the Bolton book, I believe I was clear about this but I just want to make 100 percent sure that the extent the senator was asking for an assurance that only career officials in the NSC review it for classification review, I can't make that assurance because it's an NSC process and I'm not sure at the levels of the process, there might be other reviews.

So, I didn't intend to give and I don't want it to be understood as giving that assurance to you. Thank you.

J. ROBERTS: Thank you, counsel.

The Senator from Massachusetts?

WARREN: Mr. Chief Justice, I sent a question to the desk for House managers and counsel to the president.

J. ROBERTS: Thank you.

The House managers will respond first to this question from Senator Warren. If Ukrainian President Zelensky called President Trump and offered dirt on President Trump's political rivals in exchange for President Trump handing over hundreds of millions in military aid, that would clearly be bribery and an impeachable offense. So, why would it be more acceptable and somehow not impeachable for the reverse, that is for President Trump to propose the same corrupt bargain?

NADLER: Bribery is obviously an impeachable offense. Bribery is contained within the accusation that the House levels of abuse of power. We explained in the Judiciary Committee report the practice of impeachment in the United States has tended to envelop charges of bribery within the broader standard of other higher crimes and misdemeanors. That's the historical standard.

The elements of bribery are clearly established here. The abuse of power is clearly established when the President of the United States offers something of extorts to foreign power to get a benefit for himself, withholds military aid in order to get that foreign power to do something that would help him politically. That is clearly bribery, it's clearly an abuse of power and there's no question about it.

Now, by the way, the question was raised earlier as to what the proper standard of proof is. People pointed out the Constitution doesn't say. But the highest standard of proof is beyond a reasonable doubt and these facts have been proven not beyond a reasonable doubt, beyond any doubt.

PHILBIN: The question, I think what this hypothetical shows and Manager Nadler shows is this is an effort to try to smuggle into articles of impeachment that do not mention any crime, the idea that there is some crime alleged here. There is not and I went through that earlier.

The articles of impeachment specify a theory of the charge here that is abuse of power. They do not allege the elements of bribery or extortion. They don't mention bribery or extortion.

If the House managers had wanted to bring those charges, they had to put them in the articles of impeachment. Just the way of prosecutor, if he wants to put someone on trial for bribery, he's got to put it in the indictment. If you don't and you come to trial and then try to start arguing that, well, actually, we think there is bribery going on here, that's impermissible. It's prosecutorial misconduct.

And so, a hypothetical that is contrary to what the facts we're here to try to suggest that maybe there's some element of bribery, that's all beside the point. We have specific facts. We have evidence that has been presented in the record. We have specific articles of impeachment. It doesn't say bribery. It doesn't say extortion.

And there's no way to get that into this case at this point because the House managers had the opportunity to frame their case. They had every opportunity to frame it anyway they want it because they control the whole process,


they control all the evidence that went it, they control all the evidence who -- that was the witnesses that were called and they could frame it anyway they want it, and they didn't put in any crime.

There is no crime asserted here. It's not part of the articles of impeachment and it can't be considered now. Thank you.

J. ROBERTS: Thank you, counsel.

MORAN: Mr. Chief Justice?

J. ROBERTS: The Senator from Kansas.

MORAN: Thank you, Mr. Chief Justice. I submit to the desk a question on my behalf and on behalf of Senator Cornyn.

J. ROBERTS: The question from Senator Moran and Senator Cornyn is for counsel to the president. Is it true that in these proceedings that the chief justice can rule on the issue of production of exhibits and the testimony of witnesses over the objection of either the managers or the president's counsel? Would a determination by the chief justice be subject to judicial review?

PHILBIN: Mr. Chief Justice, Senators, thank you for the question and let me answer it this way, lay out my understanding of the process. If we were going to start talking about subpoenaing witnesses, subpoenaing documents, having things come to evidence that way, the first question would be, subpoenas would have to be issued to the witnesses or for the documents and if those subpoenas were resisted on the grounds of some privilege or immunity, then that would have to be sorted out because if the president asserted, for example, the immunity of a senior adviser to the president or an executive privilege over certain documents, then the senate would have to determine whether it was going to fight that assertion and how through some accommodation process and negotiation or if the Senate were going to go to court to litigate that and that whole process would have to play out.

That would be the first stage and that would have to be gone through any time the president resisted the subpoena on the witnesses or documents. That would take a while.

That's what the House managers decided not to do in the House of Representatives. Then once there had been everything resolved on a subpoena or something like that, it sounds like the question asks further in terms of questions here in the trial admissibility of particular evidence.

It's my understanding then that the presiding officer, the Chief Justice, could make an initial determination if there were objections to admission of evidence but that all such determination can be challenged by the members of the Senate and would be subject to a vote.

So, it would not be -- I think there were some suggestions earlier that we don't need any other courts, we don't need anything involving with anyone else because the Chief Justice is here. That's not correct. On the subpoenas at the front end, that's not going to be something that's determined just, with all respect, asserted by the Chief Justice.

That's something that would have to be asserted out in the courts or by negotiation with the Executive Branch. Then once we hear on specific evidentiary objections, if we have a witness and there are objections during depositions that have to be resolved or by witness on the stand, if there are objections to particular documents, authentication or things like that, the Chief Justice could make an initial ruling but every one of those rulings could be appealed to this body to vote by a majority vote on whether the evidence would come in or not.

And you might have to consider rules whether you're going to have the federal rules of evidence apply or some modified rules of evidence and all that would have to be sorted out.

I don't think that we would get to the stage then of any determinations and evidence here being anyway appealed out to the courts but that would be a process that this body would have to decide what would be admissible in evidence in the trial. Thank you.

J. ROBERTS: Thank you, counsel.

SMITH: Mr. Chief Justice? Mr. Chief Justice, I sent a question ...

J. ROBERTS: I'm sorry, excuse me? Yes, Senator from Minnesota.

SMITH: Thank you. I sent a question to the desk.

J. ROBERTS: Thank you.

The question from Senator Smith is to the House managers. The President has stated multiple times in public that his actions were perfect.


Yet, he refuses to allow Bolton, Mulvaney, and others to testify under oath. If the President's actions are so perfect, why wouldn't he allow fact witnesses to testify under oath about what he has said publicly?

SCHIFF: Well, the short answer is if the President were so confident that this was a perfect call and that those around him would agree that there was nothing nefarious going on, he would want witnesses to come and testify. But, of course, he doesn't.

He doesn't want his former national security advisor to testify. He doesn't want his current chief of staff to testify. He doesn't want those that were heading OMB to testify. He doesn't want you to hear from any of them.

Now, I think that's pretty indicative that he knows what they have to say and he doesn't want you to hear what they have to say. He doesn't want you to see any of the myriad of documents that he has been withholding from this body as he did from the House.

But I also want to address the last question if I could. Is the chief justice empowered under the Senate rules to adjudicate questions of witnesses, and privilege and the answer is yes. Can the chief justice make those determinations quickly? The answer is yes.

Is the Senate empowered to overturn the chief justice under certain circumstances? Is the vote 50 or is the vote two thirds? That would be something that we would have to discuss with the parliamentarian and with the chief justice.

But the chief justice has the power to do it and what's more, under the Senate rules, you want expedited process, we are here to tell you we will agree with the chief justice's ruling on witnesses, on their materiality, on the application or nonapplication of privilege.

We agree to be bound by the chief justice. We will not seek to litigate an adverse ruling. We will not seek to appeal an adverse ruling. Will the president's counsel do the same? And if not, just as the president doesn't trust what these witnesses have to say, the president's lawyers don't want to rely on what the chief justice's rulings might be.

Now, why is that? They -- as we understand, the chief justice will be fair. I don't -- 3333333I'm not, for a moment, suggesting they don't think the chief justice is fair, quite the contrary. They're afraid he'll be fair.

They're afraid he'll make a fair ruling. That should tell you something about the weakness of their position. They don't want a fair trial of witnesses. They don't want a fair justice to adjudicate these questions. They just want to suggest to you that they will delay and delay an delay.

I think it was Thomas Paine who said, those who would enjoy the blessings of liberty must undergo the rigors of defending it, the fatigues of defending it. Is it too much fatigue for us to hear from a witness? Is that how little effort we're willing to put into the blessings of freedom and liberty? Is that how little fatigue we are willing to incur?

J. ROBERTS: Thank you, Mr. Manager.

SASSE: Mr. Chief Justice?

J. ROBERTS: The gentleman from Nebraska.

SASSE: I sent a question to the desk on behalf of myself, Tim Scott and Marco Rubio.

J. ROBERTS: Thank you.

Question from Senator Sasse and also on behalf of Senator Scott from South Carolina and Mr. Rubio. It's directed to counsel for the president. Mr. Cipollone pointed senators to the, quote, "golden rule of impeachment" end quote. In elaborating on that rule, can you offer your views on the limiting principles both in the nature of offenses that should be considered and in the proximity to elections for future impeachments toward the end of safeguarding public trust by putting guardrails on both parties?

CIPOLLONE: Thank you, Mr. Chief Justice, members of the Senate. In elaborating on the golden rule of impeachment, I would say principle number one, if we listen to what the democratic senators said in the past and the House managers and other


members of the House, that should guide us and that principle is -- and it's a principle based in president that you shouldn't have a partisan impeachment.

If you have a partisan impeachment, that in and of itself is a danger sign because that means that there's not the bipartisan support that even the speaker of the House has said, you would need to even begin to consider the impeachment of a president because it is the overturning of an election.

They don't dispute that. It is the overturning of an election. In addition, it is the removal of this president from an election that's occurring in just months from now, which I think is another important principle.

I think the other important fact here is that there's actually bipartisan opposition to this impeachment. Democrats voted against it in the House of Representatives. That's an important principle.

The other principle would be that if you have a process that's unprecedented, if you have a process that's unprecedented, that should be something that ought to be considered. Always in the past, there has been an authorized -- there's been a vote authorizing an impeachment. Why? Because they say the House is the sole authority of an impeachment but that's the House, not the Speaker of the House, at a press conference. That's another important consideration.

Another important consideration is all of the historical precedents related to rights given to a president in a process have been violated. We haven't seen anything like that in our history. The president's counsel wasn't able to attend -- wasn't allowed to cross examine witnesses, wasn't allowed to call witnesses.

And they're coming here and basically asking you, number one, to call witnesses that they refused to pursue, but more importantly, I think what they're saying is, do what they did, only call witnesses that they want. Don't allow the president to call witnesses that the president wants.

That doesn't work. That's not due process. The other important principle there is we hear a lot about fairness but in the American justice system, fairness is about fairness to the accused. Fairness is about fairness to the accused.

So, how you could suggest that what we're going to do is we're going to have a trial, we'll get the witnesses as prosecutors that we want even though you got to call no witnesses in the House, you got to cross examine none of the witnesses that we called and have -- we got a deal for you, let us call another witness but you call none. That's another principle.

And I think the reality is that what Professor Dershowitz said is true, I think when you're thinking about impeachment as much as we can as human beings, we should think about it in terms of the president is the president regardless of party and how would we treat a president of our own party in similar circumstances, and I think that's the golden rule of impeachment.

And I don't think we have to guess here because I think we have lots of statements from Democrats when we were here last time around and principles and I said, I agree with them , I agree with those principles. I just asked that they be applied here.

So, that's my answer. Thank you.

J. ROBERTS: Thank you, counsel.

Senator from Illinois. Thank you. Senator Durbin asked the House managers, if President Trump were to actually invoke executive privilege in this proceeding, wouldn't he be required to identify the specific documents or communications containing sensitive material that he seeks to protect?

NADLER: As stated before, executive privilege is a very limited privilege that must be claimed by the president. He has at no time claimed executive privilege. Rather, he's claimed absolute immunity, a non-existing concept that every court that has ever considered it has rejected it.

Instead, he has simply said,


we will oppose all subpoenas, we will deny to the House all information, all information, whatever they want, they can't have. This is way beyond the pale.

And it is intended to because he fears the facts and the facts are he tried to extort a foreign government through withholding military aid that this Congress had voted, he broke the law to withhold the aid that this Congress had mandated be sent to them in order to pressure them into announcing investigation of his political opponents.

Those are the facts. Those facts are proven beyond any doubt at all. So, what do we have? We have a diversion after diversion. Diversions about what Hunter Biden may have done in Ukraine. Irrelevant. Whatever he did in Ukraine, the question is, did the President withhold foreign military aid in order to extort a foreign government into helping him rig in American election?

We hear diversions about privilege. We hear questions about witnesses. We know he's telling the senators, don't allow witnesses. Why? Because he knows what the witnesses will say.

We hear arguments from his counsels, wow, we've taken enough time with the witnesses. The House shouldn't have voted it if it didn't have a proof positive. We had proof positive, we voted it. It doesn't mean you shouldn't have more proof if it comes forward.

There is no argument that Mr. Bolton shouldn't be permitted to testify and he's not going to waste our time. He's told us he will take -- he'll testify with the subpoena.

So, all of these, the questions, are diversions. They're diversions by a president who is desperate because we have proven the facts that he threatened a foreign government, not just threatened them, did in fact withhold mandated American military aid from them in order to blackmail them into serving his political purposes for private political purposes. We know that.

Everything else is a diversion. No witnesses because maybe those witnesses will testify in a way he doesn't want. Privilege, when you're dealing with accusations of wrongdoing against the president, Supreme Court told us the Nixon case privilege yields. So, all of these arguments are diversions. Keep your eye on the facts, the facts we have proven, and let's see if the additional witnesses and as the -- as Mr. Schiff said, witnesses should not be a threat, not to the Senate, not anybody else.

And it's not going to waste too much time because the chief justice can rule on relevant questions of relevancy or privilege or anything else. But the facts are the facts. The president is a danger to the United States. He's tried to rig the next election. He's abused his power and he must be brought to heel and the country must be saved from his continuing efforts to rig our elections.

J. ROBERTS: Thank you, Mr. Manager.

ROMNEY: Mr. Chief Justice?

J. ROBERTS: Senator from Utah?

ROMNEY: I submit a question to the desk.

J. ROBERTS: Thank you.

The question from Senator Romney is for the counsel to the president. On what specific date did President Trump first order the hold on security assistance to Ukraine and did he explain the reason at that time?

PHILBIN: Mr. Chief Justice, Senator, thank you for the question. I don't think that there is evidence in the record of a specific date, the specific date. But there is testimony in the record that individuals at OMB and elsewhere were aware of a hold as of July 3rd and there is evidence in the record of the President's rationales from even earlier than that time.


There's an e-mail from June 24th that has been publicly released. It was publicly released in response to a FOIA request that is from one DOD staff or up to the chief of staff in DOD -- excuse me, sorry. From the chief of staff down to a staff from DOD relating on the subject line POTUS Followup. It's a followup from a meeting with POTUS, President of the United States, explaining questions that had been asked about the Ukraine assistance which were specifically, what was the funding used for, i.e. did it go to U.S. firms, who funded it and what do other NATO members spend to support Ukraine?

So, from the very beginning in June, the President had expressed his concern about burden sharing what other NATO members do. Similarly, in the July 25th transcript, there was -- the President asked President Zelensky specifically. He raised the issue of burden sharing, again, showing that that was his concern.

In addition, it was, I believe, Mr. Morrison who testified that he was aware from OMB that the President had expressed concerns about corruption and that there was a review process to consider corruption in Ukraine.

So, the evidence in the record shows that the President raised concerns at least as of June 24th that people were aware of the hold as of July 3rd. The President's concerns about burden sharing were in the e-mail on June 24th. They reflected in the July 25th call.

Similarly, there's testimony from later in the summer that the President had raised concerns about corruption in Ukraine. And so, that is the evidence in the record that reflects the President's concerns. Thank you.

J. ROBERTS: Thank you, counsel.

CORTEZ MASTO: Mr. Chief Justice?

J. ROBERTS: The senator from Nevada?

CORTEZ MASTO: Thank you. I sent a question to the desk.

J. ROBERTS: Thank you.

The question from Senator Cortez Masto is to the House managers. The president's counsel has claimed that the president was unfairly excluded from House impeachment processes. Can you describe the due process President Trump received during House proceedings compared to previous presidents? Did President Trump take advantage of any opportunities to have his counsel participate?

DEMINGS: Mr. Chief Counsel and to the Senator, thank you so much for that question. Let me make this plain. The President is not the victim here. The victim in that -- this case is the American people.

President Trump was invited to attend and participate in all of the Judiciary Committee hearings. He could have had Mr. Cipollone, Mr. Sekulow or any of the other attorneys who have joined at the counsel's table participate throughout the Judiciary Committee's proceedings in the House. They could have attended all of the judiciary hearings and imagine this, cross examine witnesses, raise objections, present evidence favorable to the President if they had any to present.

And they could have requested to have President Trump's own witnesses called. But President Trump refused to participate. He wrote to the House, and I quote, "if you are going to impeach me, do it now fast so we can have a fair trial in the Senate."

In every event, President Trump was asked and indeed legally required to provide evidence during the Intelligence Committee's investigation but he refused as we've already said over and over again to produce any documents or allow witnesses to testify. We thank, God, for the 17 public servants who came forward in spite of the President's efforts to obstruct.