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The Impeachment Trial; Senators Ask Questions. Aired 2-2:30p ET

Aired January 29, 2020 - 14:00   ET


[14:00:00] GARCIA: -- every single threat a president might someday pose, the framers adopted a standard sufficiently general and flexible to meet unknown future circumstances. This standard was meant, as Mason put it, to capture all manner of great and dangerous offenses incompatible with the Constitution.

When the president uses the powers of his high office to benefit himself while injuring or ignoring the American people he is duty- bound to serve, he has committed an impeachable offense.

The records of the Constitutional Convention offer further clarity. At the Constitutional Convention itself, no delegate, no delegate linked impeachment to the technicalities of criminal law.

Instead, the framers principally intended impeachment for three forms of presidential wrongdoing. The ABCs of impeachment: A, abuse of power; B, betrayal of the national interests through foreign entanglements; and, C, corruption of office and elections.

When a president abuses his power to obtain illicit help in his election from a foreign power and undermine our national security and election integrity it is a trifecta.

J. ROBERTS: Thank you. Thank you, Counsel.

GARCIA: Thank you.

J. ROBERTS: The senator from Louisiana?

KENNEDY: Mr. Chief Justice, along with Senator Blackburn and Senator Cornyn, I send a question to the desk for the House managers and for counsel for the president.

ROBERTS: In the case of such a question addressed to both sides, they will split the five minutes equally.

The senators ask, "Why did the House of Representatives not challenge President Trump's claims of executive privilege and/or immunity during the House impeachment proceedings?"

We'll begin with the House managers.

(OFF-MIKE) You'll have to start the clock soon. JEFFERIES: Mr. Chief Justice, Distinguished Senators, thank you for your question. The answer is simple. We did not challenge any claims related to executive privilege because, as the president's own counsel admitted during this trial, the president never raised the question of executive privilege.

What the president did raise was this notion of blanket defiance. This notion that the executive branch, directed by the president, could completely defy any and all subpoenas issued by the House of Representatives, not turn over documents, not turn over witnesses, not produce a single shred of information in order to allow us to present the truth to the American people.

In the October 8th letter that was sent to the House of Representatives, there was no jurisprudence that was cited to justify the notion of blanket defiance. There has been no case law cited to justify the doctrine of absolute immunity. In fact, every single court that has considered any presidential claim of absolute immunity, such as the one asserted by the White House, has rejected it out of hand.

J. ROBERTS: Counsel for the president?

PHILBIN: Mr. Chief Justice, Senators, thank you for that question. Let me frame this partly in response to what Manager Jefferies just said. And I went through this before, the idea that there was blanket defiance, and no explanation, and no case law from the White House is simply incorrect. I put up slides showing the letters.


A letter from October 18th that explained specifically that the subpoenas that had been issued by the House, because they were not authorized from a -- by a vote from the House, were invalid. And there was a letter from the White House counsel saying that. There was a letter from OMB saying that. There was a letter from the State Department saying that.

There were specific rationales given, citing the cases Watkins, Rumely and others, explaining that defect. The House managers -- the House Manager Schiff chose not to take any steps to correct that.

We also pointed out other defects. We asserted the doctrine of absolute immunity for senior advisors to the president, which has been asserted by every president since the 1970s. They chose not to challenge that in court.

We also explained the problem that they didn't allow agency counsel to be present at depositions. They chose not to challenge that in court.

These were specific legal reasons, not blanket defiance, right. That's just a misrepresentation of the record. And there was no attempt to have that adjudicated in court.

And the reason that there was no attempt is that the House Democrats were just in a hurry, they had a timetable. One of the House managers said on the floor here they had no time for courts. They had to impeach the president before the election, so they had to have that done by Christmas. That's why the proper process wasn't followed here, because it was a partisan and political impeachment that they wanted to get done all around timing for (ph) the election.

Thank you.

J. ROBERTS: Thank you, Counsel.

Senator from Vermont?

LEAHY: (OFF-MIKE) Yes. Thank you.

J. ROBERTS: Senator Leahy asks the House managers, "The president's counsel argues that there was no harm done, that the aid was ultimately released to Ukraine. The president met with Zelensky at the U.N. in September and that this president has treated Ukraine more favorably than his predecessors. What is your response?"

DEMINGS: Mr. Chief Justice and Senators, thank you so much for your question. Contrary to what the White House Counsel has said or has claimed that there was no harm, no foul that the aid eventually got their (inaudible).

We promised Ukraine in 2014 that if they gave up their nuclear arsenal that we would be there for them. That we would defend them. That we would fight along beside them. 15,000 Ukrainians have died. It was interesting the other day when the White House Counsel said that no American life was lost and we are always grateful and thankful for that but what about our friends? What about our allies in Ukraine?

According to Diplomat Holmes and Ambassador Taylor that are Ukrainian friends continued to die on the front lines, those who were fighting for us - fighting Russian aggression. When you fight Russian aggression when the Ukraine's have the ability to defend themselves they have the ability to defend us.

The aid, although it did arrive, it took the work of some Senators in this room who had to pass additional laws to make sure that the Ukrainians did not lose out on $35 million additional and contrary to the President's tweet that all of the aid arrived and that it arrived ahead of schedule, that is not true. All of the aid has not arrived.

And let's talk about what kind of signal withholding the aid for no legitimate reason. The President talked about burden sharing but nothing had changed on the ground. Holding the aid for no legitimate reason sent a strong message that we would not want to send to Russia that the relationship between the United States and Ukraine was on shaky ground. It actually undercut Ukraine's ability to negotiate with Russian, with whom as everybody in this room knows is in an active war - in a hot war.

[14:10:00] So when we talk about the aid eventually got there no harm, no foul that is not true, Senators, and I know that you know that. There was harm and there was foul and let us not forget that Ukraine is not an enemy. They're not an adversary. They are our friends.

J. ROBERTS: Thank you. Senator Cruz?

CRUZ: Mr. Chief Justice, I sent a question to the desk.

J. ROBERTS: Thank you. The question is address to counsel for the President. As a matter of law, does it matter if there was a quid pro quo? Is it true that quid pro quo's are often used in foreign policy?

DERSHOWITZ: Chief Justice, thank you very much for your question. Yesterday I had the privilege of attending the rolling out of a peace plan by the President of the United States regarding the Israel/Palestine conflict and I offered you a hypothetical the other day.

What if a Democratic President were to be elected and Congress were to authorize much money to either Israel or Palestinians and the Democratic President were to say to Israel, no I'm going to withhold this money unless you stop all settlement growth or to the Palestinians, I will withhold the money Congress authorized to you unless you stopped paying terrorist and the President said, quid pro quo. If you don't do it you don't get the money. If you do it you get the money.

There's no one in this chamber that would regard that as in any way unlawful. The only thing that would make a quid pro quo unlawful is if the quo were, in some way, illegal. Now we talked about motive. There are three possible motives that a political figure can have.

One, a motive in the public interest and the Israel argument would be in the public interest. The second is in his own politic interest and the third, which hasn't been mentioned would be in his own financial interest - his own pure financial interest just putting money in the bank.

I want to focus on the second one for just one moment. Every public official that I know believes that his election is in the public interest and mostly you're right. Your election is in the public interest and if a President does something which he believes will help him get elected in the public interest that can not be the kind of quid pro quo that results in impeachment.

I quoted President Lincoln. When President Lincoln told General Sherman to let the troops go to Indiana so that they can vote for the Republican party. Let's assume the President was running at that point and it was his electoral interest to have these soldiers put at risk - the lives of many, many other soldiers who would be left without their company.

Would that be an unlawful quid pro quo? No because the President, A, believed it was in the national interest but B, he believed that his own election was essential to victory in the Civil War, every President believes that. That's why its so dangerous to try to cycle analyze a President to get into the intricacies of the human mind. Everybody has mixed motives and for there to be a constitutional impeachment based on mixed motives would permit almost any President to be impeached. How many Presidents have made foreign policy decisions after checking with their politic advisors and their pollsters. If you're just acting in the national interest why do you need pollsters? Why do you need political advisors? Just do what's best for the country but if you want to balance what's in the public interest with what's in your parties electoral interest and your own electoral interest it's impossible to discern how much weight is given to one to the other.


Now we may argue that it's not in the national interest for a particular President to get reelected over a particular Senator or member of Congress and maybe we're right. It's not in the national interest for everybody who's running to be elected but for it to be impeachable you would have to discern that he or she made a decision solely on the basis of, as the House managers put it, corrupt motives. And it cannot be a corrupt motive if you have a mixed motive that partially involves the national interest, partially involves electoral and does not involve personal, pecuniary interests.

And the House managers do not allege that this decision, this quid pro quo, as they call it, and the question is based on the hypothesis there was a quid pro quo, I'm not (inaudible) the facts, they never allege that it was based on pure financial reasons. It would be a much harder case if a hypothetical President of the United States said to a hypothetical leader of a foreign country "unless you build a hotel with my name on it and unless you give me $1 million kickback, I will withhold the funds."

That's an easy case. That's purely corrupt and in the purely private interest. But a complex middle case is "I want to be elected, I think I'm a great President, I think I'm the greatest president there ever was and if I'm not elected, the national interest will suffer greatly." That cannot be an impeachable offense. Thank you, Mr. Chief Justice.

ROBERTS: Recognize the Democratic Leader.

SCHUMER: Mr. Chief Justice, I send a question to the desk.

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 would be delighted.


There are two arguments that Professor Dershowitz makes. One of - it is - I have to say a very odd argument for a criminal defense lawyer to make and that is it is highly unusual to have a discussion in trial about the defendant's state of mind, intent or mens rea.

In every courtroom in America, in every criminal case or almost every criminal case except for a very small sliver that are strict liability, the question of the defendant's intent and state of mind is always an issue. So this is nothing novel here, you don't require a mind reader. In every criminal case and I would assume in every impeachment case, yes, you have to show that the President was operating from a corrupt motive, and we have.

But he also makes an argument that all quid pro quos are the same and all are perfectly copacetic. Now some of you said earlier "well if they could prove a quid pro quo over the military aid, now that would be something." Well, we have.

So now the argument shifts to all quid pro quos are just fine, they're all the same. Well I'm going to apply Professor Dershowitz's own test - he talked about the step test, John Rawls, the philosopher. Let's put the shoe on the other foot and see how that changes our perception of things.

But I want to merge that argument with one of the other presidential counsel's argument when they - when they resorted to the whataboutism about Barack Obama's open mic. Now, that was a very poor analogy, I think you'll agree, but let's use that analogy and let's make it more comparable to today and see how you feel about this scenario.

President Obama, on an open mic, says to Medvedev "Hey, Medvedev, I know you don't want me to send this military money to Ukraine cause they're fighting and killing your people. I want you to do me a favor, though. I want you to do an investigation of Mitt Romney and I want you to announce you found dirt on Mitt Romney. And if you're willing to do that, quid pro quo, I won't give Ukraine the money they need to fight you on the front line."

Do any of us have any question that Barack Obama would be impeached for that kind of misconduct? Are we really ready to say that that would be OK, if Barack Obama asked Medvedev to investigate his opponents and would withhold money from an ally that it needed to defend itself to get an investigation of Mitt Romney? That's - that's the parallel here.

And to say "well, yes, we condition aid all the time," for legitimate reasons, yes - for legitimate reasons, you might say to a governor of a state "hey, governor of a state, you should chip in more towards your own disaster relief."


But if the President's real motive in depriving a state of disaster relief is because that governor won't get his Attorney General to investigate the President's political rival? Are we ready to say that the President can sacrifice the interests of the people of that state, or in the case of Medvedev, the people of our country, because all quid pro quos are fine, it's carte blanche?

Is that really what we're prepared to say with respect to this President's conduct or the next? Because if we are, then the next President of the United States can ask for an - an investigation of you. They can ask for help in their next election from any foreign power. And the argument will be made "nope, Donald Trump was acquitted for doing exactly the same thing. Therefore, it must not be impeachable." Now, bear in mind that efforts to cheat an election are always going to be in proximity to an election and if you say you can't hold a President accountable in an election year where they're trying to cheat in that election then you are giving them carte blanche.

So all quid pros are not the same. Some are legitimate and some are corrupt and you don't need to be a mind reader to figure out which is which. For one thing, you can ask John Bolton.

ROBERTS: Thank you, Mr. Manager.

GRASSLEY: Mr. Chief Justice?

ROBERTS: Senator from Iowa?

GRASSLEY: I send a question to the desk.

ROBERTS: Senator Grassley asks counsel for the President - "does the House's failure to enforce its subpoenas render its quote 'obstruction of Congress' end quote theory unprecedented?"

PHILBIN: Mr. Chief Justice, senators, the answer is yes, as far as I am aware, there has never been a prior instance in which there's been an attempt, even in the House, as in the Nixon proceeding, never mind in the Clinton proceeding, which actually left the House and came to the Senate, to suggest that there can be obstruction of Congress when there hasn't been anything beyond simply issuing a subpoena, getting resistance and then throwing up your hands and giving up and saying "oh, well that's obstruction."

In the Clinton situation, most of the litigation was with the independent counsel and there were privileges asserted and litigation and litigation again and again, but the point is that the issues about the privileges were all litigated and they were resolved before things came to this body.

Similarly, in the Nixon impeachment proceeding in - within the House, a lot of investigation had been done by the Special Counsel and there was litigation over assertions of privileges there in order to get at the tapes and some tapes or transcripts had already been turned over.

But again, there was litigation about the assertion of the privilege in response to the Grand Jury subpoena that then fed into the House's proceedings. So it would be completely unprecedented for the House to attempt to actually bring a charge of obstruction into the Senate where all they can present is well, we issued a subpoena and there were legal grounds asserted for the invalidity of the subpoena and there were different grounds as I've gone through.

I won't repeat them all in detail here. But some were because the subpoenas were just invalid when issued because there was no vote. Some is that the subpoenas for witnesses were invalid because senior advisors to the president had absolute immunity from compulsion.

Some that they were forcing executive branch officials to testify without the benefit of agency council and the executive branch council with them. So various reason asserted for the invalidity and the defects in various subpoenas and then no attempt to enforce them.

No attempt to litigate out what the validity or invalidity might be but just bring it here as an obstruction charge is unprecedented.

And I'll note the House managers have said and I'm sure that they will say again today that well, but if we had gone to court the Trump administration would have said that the courts don't have jurisdiction over those claims.


Now that is -- that is true in some cases. There's one being litigated right now related to the former counsel to the president, Don McGahn. The Trump administration position, just like the position of the Obama administration is that an effort by the House to enforce a subpoena in Article 3 court is a non judiciable (ph) controversy.

That is our position and we would argue that in court. But that's part of what would have to be litigated. That doesn't change the fact that the House Managers can't have it both ways. And want to make this clear.

The House Managers want to say that they have an avenue for going to court. They're using that avenue for going to court. They actually told the court in McGahn that once they reached an impasse with the Executive Branch, the courts were the only way to resolve the impasse.

And -- and as I explained the other day, there are mechanisms for dealing with these disputes between the executive and Congress. The first is an accommodations process. They didn't do that. We offered to do that in the White House Council's October 8th letter. They didn't do accommodations.

If they think they can sue, they have to take that step because the Constitution, the courts have made clear require incremental wisdom in disputes between the Executive and the Legislative Branch.

So if they think that the courts can resolve that dispute that's the next step, they should do that and have they litigated. And then things can proceed on to a high level of confrontation. But to jump straight to impeachment to the ultimate constitutional confrontation doesn't make sense. It's not the system that the constitution requires. And it is unprecedented in this case. Thank you.

J. ROBERTS: Thank you, Counsel. The Senator from Michigan.

STABENOW: Thank you. Mr. Chief Justice, I send a question to the desk.

J. ROBERTS: Senator Stabenow ask the House Managers, would the House Managers care to correct the record on any falsehoods or mischaracterizations in the White House's opening arguments?

LOFGREN: Mr. Chief Justice and Senators, thank you for that question. We believe that the president's team has claimed basically there were six facts that have not been met and will not change and all six of those so called facts are incorrect. Let's be clear, on July 25th that's not the whole evidence before us even though it includes devastating evidence of the president's scheme. President Trump's intent was made clear on the July 25th call but we had evidence of information before the meetings with Mr. Bolton, the text message to Mr. Zelensky's people telling him he had to do the investigations to get what he wanted.

All of this evidence that makes us understand that phone call even more clearly. Now, the president's team claim that Mr. Zelensky and other Ukrainians said they never felt pressure to open investigations.

Now, of course they didn't say that publicly, they were afraid of the Russians finding out. But Zelensky said privately that he didn't want to be involved in U.S. domestic politics. He resisted announcing the investigations.

He only relented and scheduled the CNN meeting after it became clear that he was not going to receive the -- the support that he needed and that Congress had provided in our appropriations.

That's the definition of pressure. Now Ukraine, the president's lawyers say didn't know that Trump was withholding the security assistance until it was public. Many witnesses have contested that including the open statement by Olena Zerkal who was then the Deputy Foreign Minister of Ukraine that they knew about the president's hold on the security matters.

And in the end, everyone knew, it was public. And after it was, Ukraine did relent and schedule that testimony. For what they said no witnesses, said security was conditioned on the investigations, not so.

Mulvaney and we had other witnesses -