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The Impeachment Trial of Donald Trump; Senators Ask Questions. Aired 2:30-3p ET

Aired January 29, 2020 - 14:30   ET


[14:30:00] LOFGREN: -- witnesses, said security was conditioned on the investigations, not so.

Mulvaney and we had other witnesses talking about the shake down for the security assistance. But the important thing is you can get a witness who talked to the president firsthand about what the president thought he was doing.

Ultimately of course the funds, or at least some of them were released. But the White House meeting that the president promised three different times, still has not occurred. So -- and we still don't have the investigation of the Bidens.

Getting caught doesn't mitigate the wrong doing. The president's unrepentant and we fear he will do it again. Now, the Independent Government Accountability Office concluded that the president violated federal law when he withheld that aid.

That misconduct is still going on. All the aid is not yet been released. And finally I'd just like to say there's been some confusion, I think, I'm sure not intentional but the president surely does not need the permission of his staff about foreign policy.

That information is offered to you as evidence of what he thought he was doing. And he did not appear to be pursuing a policy agenda. He appeared from all the evidence to be pursuing a corruption -- a corruption of our election that's upcoming. A high crime and misdemeanor that requires conviction and removal. I yield back.

(UNKNOWN): Mr. Chief Justice.

J. ROBERTS: The Senator from Arkansas.

(UNKNOWN): I send a question to the desk for the president's counsel, on behalf of myself and Senator Boozman, McSally, Blackburn, Kennedy and Toomey.

J. ROBERTS: The senator has asked the president's counsel, did the House bother to seek testimony, or litigate executive privilege issues during the month during which it held up the impeachment articles before sending them to the Senate?

PHILBIN: Mr. Chief Justice, Senators -- no, the House did not seek to litigate any of the privilege issues during that time. In fact, they filed no lawsuits arising from this impeachment inquiry to seek to contest the basis (ph) that the Trump administration gave for resisting the subpoenas -- the basis for why those subpoenas were invalid.

And when litigation was filed by one of the subpoena recipients, that was Dr. Charles Kupperman, the Deputy National Security Advisor, he went to the court and sought its acclamatory (ph) judgment saying the president's told me I shouldn't go (ph), I have a subpoena from the House saying I should go -- please courts tell me what are my obligations?

And that was filed, I believe around October 25, it was toward the end of October -- very shortly within a few days the court had set an expedited briefing schedule and scheduled a hearing for December 10 that was supposed to hear both preliminary motions to dismiss, but also the merits issue.

So they were going to get a decision after a hearing on December 10 that would go to the merits of the issue. The House managers withdrew the subpoena, the House of Representatives decided they wanted to moot out the case so they shouldn't get a decision.

So no, the House has not pursued litigation to get any of these issues resolved. It's affirmatively avoided getting any litigation. And that seems to be, at least in part, based on -- if you look at the House Judiciary Committee report, their assertion that under the sole power of impeachment assigned to the House, the House believes that the Constitution assigns, I believe the exact words are, it gives the House the last word -- something to that effect.

And I mentioned this the other day, this is the new Constitutional theory that because they have the sole power of impeachment, in their view it's actually the paramount power of impeachment and all other Constitutionally based privileges, or rights, or immunities, or roles even of the other branches both the Judiciary and the Executive fall away, and there is nothing that can stand in the way of the House's power of impeachment.


If they issue a subpoena, the executive has to respond and it can't raise any Constitutionally based separation of powers concerns -- if you do, that's obstruction of courts -- courts have no role. The House has the sole power of impeachment, and that's a very dangerous construct for our Constitution.

It suggests that once they flip the switch on to impeachment there's no check on their power, on what they want to do -- and that's not the way the Constitution is structured. The Constitution requires, when there are inter-branch conflicts that there be an accommodation process, that there be attempts to address the interests of both branches, and if (ph) the House has taken the position and in other litigation the McGahn litigation they're telling the courts -- the courts are the only way to resolve these issues -- and they brought that case in August. They already have a decision from the district court, they have an appeal in the D.C. circuit, it was argued on January 3. A decision could come any day, that's pretty fast for litigation but they've decided in this impeachment they don't want to do litigation.

And again, it's because they had a timetable -- one of the House managers admitted it on this floor, they had to get the president impeached before the election, they had no time for the courts, for anyone telling them what the rules were -- and they had to get it done by Christmas, and that's what they did -- and then they waited around for the month before bringing it here.

And I think that shows you what's really behind the claims of, oh it's urgent then it's not urgent, it's urgent when it's our timetable to get done by Christmas, it's not so urgent when we can wait for a month because we want to tell the Senate how to run things -- it's all a political charade.

And that's part of the reason, a major reason that the Senate should reject these articles of impeachment. Thank you.

J. ROBERTS: Thank you, Counsel.

(UNKNOWN): Mr. Chief Justice -- Mr. Chief Justice.

J. ROBERTS: The Senator from New Mexico.

(UNKNOWN): Thank you for the recognition, Mr. Chief Justice. I send a question to the desk.

J. ROBERTS: The question is for the House managers -- please address the president's counsel's argument that House managers seek to overturn the results of the 2016 election, and that the decision to remove the president should be left to the voters in November.

SCHIFF: Thank you for the question. And you know, first I just want to respond to something counsel just said -- nine months is pretty fast for litigation in the courts, sadly I agree with that. Nine months is pretty fast in the McGahn case and we still don't have a decision yet. And what's more, that's the very case in which they're arguing, as I quoted earlier, that Congress has no right to come to the courts to force a witness to testify.

So here we are nine months later and that litigation that they said were compelled under the Constitution to bring (ph), and they're saying in court you can't bring this and it's nine months and we still don't have a decision. I think that tells you just where they're coming from -- it all goes back to the president's directive fight all subpoenas and they are.

Nixon was going to be impeached for far less obstruction than anything that Donald Trump did. Now, the argument's well, if you impeach a president you are overturning the results of the last election and you're tearing up the ballots in the next election. OK, if that were the case there would be no impeachment clause in the Constitution. Because by definition, if you're impeaching a president that president is in office and won an election. Clearly, that's not what the founders had in mind. What they had in mind is if the president commits high crimes and misdemeanors, you must remove him from office. It is not voiding the last election. It is protecting the next election. Indeed, the impeachment power was put in the Constitution not as a punishment, that's what the criminal laws are for, but to protect the country.


Now if you say you can't impeach a president before the next election, what you're really saying is you can only impeach a president in their second term. OK, if that were going to be the constitutional requirement, the founders would have put in the Constitution a president may commit whatever high crimes and misdemeanors that he wants as long as it's in the first term.

That is clearly not what any rational framer would have written and indeed, they didn't. And they didn't for a reason. The founders were concerned that, in fact, the object of a president's corrupt scheme might be to cheat in the very form of accountability that they had prescribed the election.

So counsel has continued to mischaracterize what the managers have said. We're not saying that we had to hurry to impeach the president before the election, we had to hurry because the president was trying to cheat in that election. And the position of the president's counsel is, well, yes, it's true that if a president is going to try to cheat an election, by definition -- that is prior to their re-election, by definition that's going to be proximate to an election, but, you know, let the voters decide even though the object is to corrupt that vote of the people.

That cannot be at the founders had in mind. One of the things I said at the very open of this proceeding is, yes, we are to look to history, yes, we are to try to divine in the intent of the framers, but we are not to leave our common sense at the door. The issue isn't whether this is his first term or his second. It isn't whether the election is a year away or three years away.

The issue is, did he commit a high crime and misdemeanor? Is it a high crime and misdemeanor for a president of the United States to withhold hundreds of millions of dollars in aid to an ally at war to get help, illicit foreign interference in our election? If you believe that it is, it doesn't matter what term it is, doesn't matter how far away the election is, because that president represents a threat to the integrity of our elections and, more than that, a threat to our national security.

As we have shown, by withholding that aid, and I know the argument, no harm no foul, we withhold -- withheld aid from an ally at war. We sent a message to the Russians, when they learned of this hold, that we did not have Ukraine's back. We sent a message to the Russians, as Zelensky was going into negotiations with Putin to try to end that war, that Zelensky was operating from a position of weakness because there was a division between the president of the United States and Ukraine.

That is immediate damage. That's damage done every day. That damage continues to this day. The damage the president does in pushing out the Russian conspiracy theories were identified during the House proceedings and you have heard in the Senate, as Russian intelligence propaganda, the danger the president poses by taking Vladimir Putin's side over his own intelligence agencies, that's a danger today. That's a danger that continues every day he pushes out this Russian propaganda.

The framers, if they meant impeachment only to apply in a second term, would have said so, but that would've made the Constitution a suicide pact. That is not what it says and that's not how you should interpret it.

J. ROBERTS: The senator from Ohio.


J. ROBERTS: Thank you.

The question is directed to counsel for the president. Given that impeachment proceedings are privileged in the Senate and largely prevent other work from taking place while they are ongoing, please address the obligations of allowing the House to present an incomplete case to the Senate and request the Senate to seek testimony from additional witnesses.

PHILBIN: Mr. Chief Justice, senators, I think this is one of the most important issues that this body faces, given these calls to have witnesses, because the House managers try to present it as if it's just a simple question, how can you have a trial without witnesses?

But in real litigation, no one goes to trial without doing discovery. No one goes to trial without having heard from the witnesses first. You don't show up at trial and then start trying to call witnesses for the first time. And the implications here, in our constitutional structure, for trying to run things in such an upside-down way, would be very grave for this body as an institution.


Because, as the senator's question points out, it largely prevents this chamber from getting other business done, as long as there is a trial pending. And the idea that the House can do an incomplete job in trying to find out what witnesses there are, having them come testify, trying to find out the facts, just rush something through and bring it here as an impeachment, and then start trying to call all the witnesses, means that this body will end up taking over that investigatory task.

And all of the regular business of this body will be slowed down, hindered, prevented while that goes on. And it's not a question of just one witness. It's not a question, a lot of people talk right now about John Bolton, but the president would have the opportunity to call his witnesses, just as a matter of fundamental fairness.

And there would be a long list of witnesses. If the body were to go in that direction, it would mean this would drag on for months and prevent this chamber from getting its business done. There is a proper way to do things and an upside-down way of doing things. And to have the House not go through a process that is thorough and complete and to just rush things through in a partisan and clinical manner, and then dump it onto this chamber to clean everything up, is a very dangerous precedent to be set.

As I said the other day, whatever is accepted in this case becomes the new normal. If this chamber puts its imprimatur on this process, then that is the seal of approval for all time in the future. And if it becomes that easy for the House of Representatives to impeach a president of the United States, don't attempt to subpoena the witnesses, never mind litigation, it takes too long, but then leave it all to this chamber, and as I said the other day, remember, what do we think will happen if some of these witnesses are subpoenaed now that they never bothered to litigate about? Then there will be litigation now, most likely. And then that will take time while this chamber is still stuck sitting as a court of impeachment.

It's not the way to do things. And it would forever change the relationship between the House of Representatives and the Senate in terms of the way impeachments operate. So I think it's vitally important for this chamber to consider what it really means to start having this chamber do all that investigatory work, how this chamber would be paralyzed by that, and is that really the precedent? Is that the way this chamber wants everything to operate in the future?

Once you make it that much easier - and we've said this on a - a couple of different points, both in terms of the standards for impeachable offenses but also in terms of the process that's used in the House. You make it really way too easy to impeach a President then this chamber's going to be dealing with that all of the time.

And as - as Minority Leader Schumer had pointed out at the time of the Clinton impeachment, he was prophetic, as White House counsel pointed out the other day - once you start down the path of partisan impeachments, they'll be coming again and again and again, and if you make it easier, they'll come even more frequently.

And this chamber's going to be - have to - spending a lot of time dealing with impeachment trials and cleaning up incomplete, half-baked procedures, rushed partisan impeachments from the House if that's the sort of system that's given your imprimatur (ph) here.

And that's a very important reason for not accepting that procedure and not trying to open things up now when things haven't been done properly in the House of Representatives. Thank you.

ROBERTS: So (ph) the senator from Delaware?

(UNKNOWN): Chief Justice, I send a question to the desk.

ROBERTS: The question is for the House managers. "Some have claimed that subpoenaing witnesses or documents would unnecessarily prolong this trial. Isn't it true that depositions of the three witnesses in the Clinton trial were completed in only one day each and isn't it true that the Chief Justice, as providing officer in this trial, has the authority to resolve any claims of privilege or other witness issues without any delay?"


JEFFRIES: Mr. Chief Justice, the answer is yes. What is clear based on the record that was compiled by the House of Representatives, where up to five depositions per week were completed, that this can be done in an expeditious fashion.

It's important to note that the record that exists before you right now contains strong and uncontroverted evidence that President Trump pressured a foreign government to target an American citizen for political and personal gain as part of a scheme to cheat in the 2020 election and solicit foreign interference.

That is evidence from witnesses who came forward from the Trump administration, including individuals like Ambassador Bill Taylor, West Point graduate, Vietnam War hero, including individuals like Ambassador Sondland, who gave $1 million to President Trump's inauguration, respected national security professionals like Lieutenant Colonel Alexander Vindman, as well as Dr. Fiona Hill.

17 different witnesses, Trump administration employees, troubled by the corrupt conduct that took place as alleged and proven by the House of Representatives. But to the extent that there are ambiguities in your mind, this is a trial. A trial involves witnesses, a trial involves documents, a trial involves evidence.

That is not a new phenomenon for this distinguished body. The Senate in its history has had 15 different impeachment trials. In every single trial, there were witnesses - every single trial. Why should this President be treated differently, held to a lower standard, at this moment of presidential accountability?

And in fact, in - in many of those trials, there were witnesses who testified in the Senate who had not testified in the House. That was the case most recently in the Bill Clinton trial. It certainly was the case in the trial of President Johnson. 37 out of the 40 witnesses who testified in the Senate were new - 37 out of 40. Why can't we do it in this instance when you have such highly relevant witnesses like John Bolton, who had a direct conversation with President Trump, indicating that President Trump was withholding the aid because he wanted the phony investigations?

Counsel has said the greatest invention in the history of jurisprudence for ascertaining the truth has been the vehicle of cross-examination. Let's call John Bolton, let's call Mick Mulvaney, let's call other witnesses, subject them to cross-examination and present the truth to the American people.

CORNYN: Mr. Chief Justice?

ROBERTS: The senator from Texas?

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

ROBERTS: Thank you. Senator Cornyn asks counsel for the President - "what are the consequences to the presidency, the President's constitutional role as the head of the Executive Branch, and the advice the President can expect from his senior advisors if the Senate seeks to resolve claims of executive privilege for subpoenas in this impeachment trial without any determination by an Article 3 court?"

PHILBIN: Mr. Chief Justice - and thank you, Senator, for the question - the Supreme Court has recognized that the confidentiality of communications with the President is essential - keeping the - those communications confidential is essential for the proper functioning of government.


In Nixon v the United States, the court explained that this privilege is grounded in the separation of powers and essential for the functioning of the Executive for this reason. In order to receive candid advice, the President has to be able to be sure that those who are speaking with him have the confidence that what they say is not going to be revealed, that their advice can remain confidential.

If it's not confidential, they would temper what they're saying; they wouldn't be candid with the president and they wouldn't be able - the president then would not be able to get the best advice and it's the same concern that underpinned the deliberative process aspect of executive privilege. Even if it's not a communication directly with the president, if it's the deliberative process within the executive branch, people have to be able before coming up with a decision to discuss alternative, to probe what other ways might work to address a problem and to discuss them candidly and openly, not with the feeling that the first thing they say is going to be on the front page of the "Washington Post" the next day.

Because if you - if you don't have the confidence that what you're saying is going to be kept confidential, you won't be candid; you won't give your best advice and that damages decision making. That's bad for the government and it's bad for the people of the United States because it means the government and the executive branch can't function efficiently.

So there is a critical need for the executive to be able to have these privileges and to protect them and that's why the Supreme Court recognized that in Nixon versus The United States and pointed out that there has to be some very high showing of need from another branch of government if there's going to be any breach of that privilege and that's why there is an accommodations process while the courts have said when the Congress - when the legislature seeks information from the executive and the executive has confidentiality interests, both branches are under an obligation to try to come to some accommodation to address the interest of both branches but it's not a situation of simply the Congress is supreme and can demand information from the executive and the executive must present everything. And the courts have made that clear because that would be damaging to the functioning of government. And so here in this case, there are vital interests at stake and you know in one of the potential witnesses that the House managers have raised again and again is John Bolton. Well John Bolton was the National Security Advisor to the president.

He has all of the nation's secrets from the time that he was the National Security Advisor and that's precisely the area, the field in which the Supreme Court suggested in Nixon versus The United States there might be something approaching an absolute privilege of confidentiality in communications with the president to feel the national security and foreign affairs. That's the crown jewels of executive privilege.

And so to suggest that the National Security Advisor, well we'll just subpoena him and he'll come in and that will be easy. There won't be any problem. That's not the way it would work because there's a vital Constitutional privilege at stake there and it's important for the institution of the office of the presidency for every president to protect that privilege because once precedent start to be set. If one president says well I won't insist on the privilege then. I will let people interview this person. I won't insist on the immunity.

That sets precedence and then the next time when it's important to preserve the privilege the president is raised and the privilege has been weakened and it's forever weakened and that damage is the functioning of government. So this is a very serious issue to consider. It's important the Supreme Court has made clear for the proper functioning of the executive branch for the proper functioning of our government and there would be grave issues raised attempting to have a National Security Advisor to the president come under subpoena to testify. And that would all have to be dealt with and that would take some time before things would continue. Thank you.

J. ROBERTS: Counsel. The Senator from Hawaii.

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

J. ROBERTS: The question from Senator Schatz is directed to the House Managers also from Senator Feinstein. If the president were acting in the interest of national security as he alleges --