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Senators Continue to Question Trump Lawyers and House Managers in Impeachment Trial. Aired 3-3:30p ET

Aired January 29, 2020 - 15:00   ET


J. ROBERTS: -- also from Senator Feinstein. If the president were acting in the interest of national security as he alleges, would there be documentary evidence or testimony to substantiate his claim? If yes, has any evidence like that been presented by the president's counsel?

CROW: Thank you Mr. Chief Justice. Thank you Senators for the question. The answer is yes. There are well established processes, mechanisms and agencies in place to pursue valid and legitimate national security interests of the United States like the National Security Council, like the National Security Advisor as in Ambassador John Bolton and many other folks within the State Department and the Department of Defense and as we have well established over the last week, none of those folks, none of those agencies that would have been involved in having that deliberation, reviewing that evidence, having that discussion were incorporated into any type of interagency review process during the vast majority of the time that we are talking about here.

From the time of the president's call on July 25th to the time the lift - the hold was lifted, those individuals, those agencies were in the dark. They didn't know what was happening and more so not only were they in the dark, but the president violated the law by violating the Impoundment Control Act to execute his scheme.

None of that suggests a valid legitimate policy objective. Moreso, the president himself and his counsel is bringing at issue the question of documents and witnesses. If over and over again as we've heard in the last few days that the president was simply pursuing a valid legitimate policy objective, if this was a specific debate about policy, a debate about corruption, a debate about burden sharing then let's have the documents that would show that.

Let's hear from the witnesses that would show that because the documents and the witnesses that we have forwarded that we have talked about show the exact opposite. So the American people in this chamber deserve to have a fair trial. The president deserves to have a fair trial. In fact, if he is arguing that there is evidence that there was a policy debate, then I think everybody would love to see those documents, would love to see the witnesses and hear from them directly about what exactly was being debated.

J. ROBERTS: Thank you Mr. Manager. GRAHAM: Mr. Chief Justice.

J. ROBERTS: The Senator from South Carolina.

GRAHAM: I send a question to the desk from myself and Senator Cruz.

J. ROBERTS: Thank you.

Senator Graham and Senator Cruz pose this question for the House managers - "In Mr. Schiff's hypothetical, if President Obama had evidence that Mitt Romney's son was being paid $1 million per year by a corrupt Russian company and Mitt Romney had acted to benefit that company, would Obama have authority to ask that that potential corruption be investigated?"

SCHIFF: Well first of all, the hypothetical is a bit off because it presumes that - in that hypothetical that President Obama was acting corruptly or there was evidence he was acting corruptly with respect to his son. But nonetheless, let's take your hypothetical on its terms.

Would it have been impeachable if Barack Obama had tried to get Medvedev to do an investigation of Mitt Romney, whether it was justified or unjustified? The reality is for a President to withhold military aid from an ally, or in the hypothetical, to withhold it to benefit an adversary, to target their political opponent is wrong and corrupt, period, end of story.


And if you allow a President to rationalize that conduct, rationalize jeopardizing the nation's security to benefit himself because he believes that his opponent should be investigated by a foreign power, that is impeachable.

Now, if you have a legitimate reason to think that any U.S. person has committed an offense, there are legitimate ways to have an investigation conducted. There are legitimate ways to have the Justice Department conduct an investigation. I would suggest to you that for a President to turn to his Justice Department and say "I want you to investigate my political rival" taints whatever investigation they do.

Presidents should not be in the business of asking even their own Justice Department to investigate their rivals. The Justice Department ought to have some independence from the political desires of the President and one of the deeply troubling circumstances of the current presidency is you do have a President of the United States speaking quite openly, urging his Justice Department to investigate his perceived enemies. That should not take place, either.

But under no circumstances do you go outside of your own legitimate law enforcement process to ask a foreign power to investigate your rival whether you think there's cause or you don't think there's cause and you certainly don't invite that foreign power to try to influence an election to your benefit. It's remarkable to me that we even have to have this conversation. And our own FBI Director has made it abundantly clear, and it shouldn't require an FBI Director to say this, that if we were approached with an offer of foreign help, we should turn it down. We should, of course, certainly not solicit a foreign country to intervene in our election.

And whether we think there's grounds or we don't, the idea that we would hold our own country's security hostage by withholding aid to a nation at war, to either damage our - our ally or help our adversary because they will conduct an investigation into our opponent, I can't imagine any circumstance where that's justified.

And I can't imagine - imagine any circumstance where we would want to say the President of the United States can target his rival, can solicit illicit foreign help in an election, can help him cheat and that's OK, because that will dramatically lower the bar for what we have a right to expect in the President of the United States, and that is they're acting in our interests.

So I would say it's wrong for a President of the United States to be asking for political prosecutions by his own Justice Department, I would say it's wrong for a President of the United States to ask a foreign power to engage in an investigation of his political rival, but particularly where, as we have shown here, there is no merit to that investigation is even more egregious.

And you know there's no merit to it because he didn't even want the investigation. And the more accurate parallel, Senator, would be if - if Barack Obama said "I don't even need you, Russia, to do the investigation, I just want you to announce it," because that betrays the fact there was no legitimate basis, because the President didn't even need the investigation done, he just wanted it announced, and there is no legitimate explanation for that except he wanted their help in cheating the next election.

J. ROBERTS: Thank you, Mr. Manager. The Senator from Michigan?

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

J. ROBERTS: Thank you. The question from Senator Peters is for the House managers - "Does the phrase 'or other high crimes and misdemeanors' in Article 2, Section 4 of the Constitution require a violation of U.S. criminal code or is a breach of public trust sufficient? Please explain."


LOFGREN: The framers were very clear that abuse of power is an impeachable offense. In explaining why the Constitution must allow impeachment, Edmund Randolph warned that quote "the Executive will have great opportunities of abusing his power." Alexander Hamilton described "high crimes and misdemeanors as offenses which proceed from the abuse or violation of some public trust."

The framers also described what it meant. It was impeachable for a President to abuse his pardon power, to shelter people he was connected with in a suspicious manner. Future Supreme Court Justice James Iredell said "the President would be liable to impeachment if he'd acted from some corrupt motive or other or if he was willfully abusing his trust."

As was later stated in a treatise summarizing centuries of common law, abuse of power curs of the public officer entrusted with definite powers to be exercised for the benefit of the community wickedly abuses or fraudulently exceeds them.

So when the framers said this, that abuse of power was impeachable, it wasn't just an empty, meaningless state -- remember, the founders had been participating with overthrowing the British government, a king who was not accountable.

They incorporated the impeachment power into the Constitution -- late, actually, in the drafting of the Constitution. They knew that they were giving the President many powers and they specified if he abused them, that those powers could be taken away.

Now, the prior articles that the Congress has had on impeachment did not include specific crimes. President Nixon was charged with abusing his power, targeting political opponents, engaging in a cover-up. Now, there was conduct specified, some of it was clearly criminal, some of it was not but it was all impeachable because it was corrupt and it was abusing his power.

In the House Judiciary Committee, we had witnesses called by both Republicans and Democrats and the Republican invited constitutional law expert, Jonathan Turley, testified unequivocally that it is possible to establish a case for impeachment based on a non-criminal allegation of abuse of power.

Every presidential impeachment including this one has included conduct that violated the law but each presidential impeachment has included the charges directly under the Constitution. It's important to note that a -- a specific criminal law violation was not in the minds of the founders and it wouldn't make any sense today.

You could have a criminal law violation -- you could -- you could deface a -- a post office box, that would be a violation of federal law. We would laugh at the idea that that would be a basis for impeachment. That is not abuse of presidential powers. It might be a crime.

And yet you could have activities that are so dangerous to our Constitution that are not a crime, that would be charged as an impeachable offense because they are an abuse of power. That's what the faith -- the framers worried about, that's why they put the impeachment clause in the Constitution, and frankly they opined that because of the impeachment clause, no Executive would dare exceed their powers.

Regrettably, that prediction did not prove true, which is why we are here today, with President Trump having abused his broad powers to the detriment of our national interest for a corrupt purpose, his own personal interest. Thank you.

ROBERTS: Thank you, counsel.

(UNKNOWN): Mr. Chief Justice?

ROBERTS: Oh, Senator? Thank you.

(UNKNOWN): Mr. -- thank you, Mr. Chief Justice. I send a question to the desk on -- on behalf of myself and Senator Murkowski.


ROBERTS: Thank you, Senator. Senators ask counsel for the President -- "describe in further detail your contention that all subpoenas issued prior to the passage of House Resolution 660 are an exercise of invalid subpoena authority by the House committees."

PHILBIN: Mr. Chief Justice, thank you, senators, for that question. As I explained the other day, this contention is based on a principle that has been laid out in several Supreme Court cases, explaining that the Constitution assigns powers to each House of the Legislative Branch -- to the House of Representatives or to the Senate, and in particular the language of the Constitution is clear in Article 1 that the sole power of impeachment is assigned to the House -- that's to the House of Representatives as a body and it's not assigned to any committee, to a subcommittee or to any particular member of the House.

And in cases such as Rooney v. the United States (ph) and the United States v. Watkins, the court has been called -- there are disputes about subpoenas. They're not specifically in the impeachment context but they establish a general rule, a principle, that whenever a committee of either body of Congress issues a subpoena to someone and that person resists the subpoena, the courts will examine what was the authority of that committee or subcommittee to issue that subpoena?

And it has to be traced back to some authorizing rule or resolution from the House of Representatives itself -- for example, in the House Subcommittee -- and the courts will examine the -- the Supreme Court has made clear that that is the charter of the committee's authority. It gets its authority solely from an action by the House itself that requires a vote of the House, either to establish the committee by a resolution or to establish by rule the standing authority of that committee.

And if the committee cannot trace its authority to a rule or a resolution from the House then its subpoena is invalid. And the Supreme Court's made clear in those cases such subpoenas are null and void cause they're ultra vires, they're beyond the power of the committee to issue, they can't be enforced.

And our point here is very simple. There is no standing rule in the House that provides the committees that were issuing subpoenas here under the -- the leadership of Manager Schiff the authority to use the impeachment power to issue subpoenas.

Rule 10 of the House defines the legislative jurisdiction of committees. It doesn't mention the word "impeachment" even once. And so no committee under Rule 10 was given the authority to issue subpoenas for impeachment purposes.

And this has always been the case in every presidential impeachment in the history of the nation, there has always been a resolution from the House first to authorize a committee to use the power of impeachment before it attempted to issue a compulsory process.

So in this case, there was no resolution from the House. The authority of the sole power of impeachment remained with the House of Representatives itself and Speaker Pelosi, by herself, did not have authority merely by talking to a group of reporters on September 24th to give the powers of the House to any particular committee to start issuing subpoenas.

So the subpoenas that were issued were invalid when they were issued and then five weeks later, on October 31st when the House finally adopted House Resolution 660 that authorized from that point -- purported to authorize, at least, from that point the issuance of subpoenas, nothing in that resolution addressed the subpoenas that had already been issued. It didn't even attempt, it didn't purport to say the ones that have already been issued, we're going to try to retroactively give authority for that.

It's a separate question whether that could have been done legally. They didn't even attempt to do it. And this is all explained in the opinion from the Office of Legal Counsel, which is in our trial memorandum attached as Appendix C and it's a very detailed and thorough opinion, 37 pages of legal reasoning, but it explains all of this -- the basic principle that applies generally, the history that it has always been done this way, there has always, in every presidential impeachment, been an authorizing resolution from the House, and the fact that there was none here, so there was no authority for those subpoenas.


And that means that 23 subpoenas that were issued were invalid. And this was explained, as I pointed out the other day, in letters from the administration to the committees -- a letter from the White House, from OMB, I think the State Department, and in very specific terms set out this rationale.

So that is the basis on which those subpoenas were invalid and they were properly resisted by the administration. Thank you.

ROBERTS: Thank you, counsel. The Senator from Pennsylvania?

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

ROBERTS: Thank you. The question is directed to the House managers -- "in Federalist 65, Alexander Hamilton writes that the subjects of impeachment are quote 'those offenses which proceed from the misconduct of public men or, in other words, from the abuse or violation of some public trust,' end quote. Could you speak broadly to the duties of being a public servant and how you believe the President's actions have violated this trust?"

NADLER: Mr. Chief Justice, members of the Senate, President Trump used the powers of his office to solicit a foreign nation to interfere in our elections for his own benefit, then he actively obstructed Congress in his attempts to investigate his abuses of power.

These actions are clearly impeachable. The key purpose of the impeachment clause is to control abuses of power by public officials, that is to say conduct that violates the public trust. Since the founding of the republic, all impeachments have been based on accusations of conduct that violates the public trust.

When the framers wrote the phrase "high crimes and misdemeanors," they intended to capture the conduct of public officials like President Trump who showed no respect for their oath of office. President Trump ignored the law and the Constitution in order to gain a political favor.

The Constitution and his oath of office prohibited him from using his official favor to corruptly benefit himself rather than the American people. That's exactly what the President did, illegally withholding military aid and a White House meeting until the President of Ukraine committed to announcing an investigation of President Trump's opponent.

In the words of one constitutional scholar, "if what we're talking about is not impeachable then nothing is impeachable." This is precisely the misconduct that the framers created the Constitution including impeachment to protect against.

Now, I want to add in reference to some of the comments that were made by some of the President's counsel a few minutes ago. They talk about the subpoena power, about the failure of the House to act properly in the subpoena power, because, they said, the House did not delegate by rule, have a resolution authorizing the committees to offer subpoena power. You apparently have read the fact that the House has generally delegated all subpoena power to the committees. That wasn't true at the time of the Watkins case. It wasn't true 15 years ago but it is true now.

Second, the House is the sole power of impeachment and the manner of its exercise may not be challenged from outside whether we do it -- whether -- the president should be convicted upon our accusation is a question for the Senate. But how we reached our accusation is a matter solely for the House.

Thirdly, they talk about executive privilege and they point to the Nixon case that established executive privilege that the president has a right to private -- to candid advice and therefore executive privilege is established. But the same case says that executive privilege cannot be used to hide wrongdoing and in fact President Nixon was ordered in that case to turn over all of the material.

Thirdly, there's the Doctrine of Waiver. You cannot use executive privilege or any other privilege if you waive it. The moment President Trump said that John Bolton was not telling the truth when he said that the president told him of the improper quid pro quo, he waived any executive privilege that might have existed. He kind of characterized the conversation and that -- and put it into the public domain and then claim executive privilege against it.


The president, by the way, never claimed executive privilege. Ever. He has claimed instead absolute immunity, a ridiculous doctrine that the president has absolute immunity from any questioning by the Congress or by anybody else, a claim rejected by every court that has ever considered it.

And finally, the difference in this president and any other president claiming privilege of any sort is that this president told us in advance, I will defy all subpoenas, whatever their nature, I will make sure that the Congress gets no information. In other words, I am absolute. The Congress cannot question what I do because I will defy all subpoenas. I will make sure they get no information no matter what their rights, no matter what the situation.

That, is the subject of Article 2 of the Impeachment because that is a claim of absolute monarchial power.

J. ROBERTS: Thank you Mr. Manager. The Majority Leader is recognized.

MCCONNELL: I'm going to suggest after two more questions on each side -- one more, I've been corrected...

(LAUGHTER) I frequently am. One more question on each side we take a 15 minute break.

J. ROBERTS: Thank you.

P. ROBERTS: Mr. (Inaudible).

J. ROBERTS: Yes, the Senator from Kansas.

P. ROBERTS: I send a question to the desk for the counsel for the president.

J. ROBERTS: Thank you. Senator Roberts asks, would you please respond to the arguments or assertions the House Managers made in response to the previous questions? Directed to the counsel for the president.

SEKULOW: Mr. Chief Justice, members of the Senate, I want to respond to a couple. First with regard to the question or the issues that have been raised as it relates to witnesses. It's important to note that in the Clinton impeachment proceeding, the witnesses that actually gave deposition testimony were witnesses that had either been interviewed by deposition in the House proceedings, grand jury proceedings, and specifically it was Sid Blumenthal, Vernon Jordan, and Monica Lewinsky. New witnesses were not being called. That's because the House, in their process, moved forward with a full investigation. That did not happen here. There was another statement that was raised by Mr. -- Chairman Schiff, Manager Schiff, regarding the chief justice could make the determination on executive privilege. And, again, with no disrespect to the chief justice, the idea that the presiding officer of this proceeding could determine a waiver or the applicability of executive privilege would be quite a step.

There's nothing historic precedent -- there's no historic precedent that would justify it. But there's something else. If we get to the point of witnesses, then, for instance, if one of the witnesses to be called were, by the president's lawyers, was Adam Schiff in the role basically of Ken Starr, Ken Starr presented the report, made the presentation before the House of Representatives, had about 12 hours of questioning, I believe, that's what Judge Starr had.

If Representative Schiff was called as a witness, would in fact then issues of speech and debate clause privilege be litigated and decided by the presiding officer or would he go to court, or maybe they would waive it? But those would be the kind of issues that would be very, very significant.

Senator Graham presented a hypothetical which Manager Schiff said, well, that's not really the hypothetical. But hypotheticals actually are that, they are hypotheticals. I'll give you -- to use Adam -- Manager Schiff's words, he talked about it would be wrong if the FBI or the Department of Justice was starting a political investigation of someone's political opponent.

And I'm thinking to myself, but isn't that exactly what happened? The Department of Justice and the FBI engaged in an investigation of the candidate for president of the United States, when they started their operation called Crossfire Hurricane. He said it would be targeting a rival, well, that's what that did. He said it would be calling for foreign assistance in that.