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The Impeachment Trial of Donald Trump; NYT: Bolton Says Trump Directed Him in Early May to Pressure Ukraine For Info on Dems, Trump Denies. Aired 4-4:30p ET

Aired January 31, 2020 - 16:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[16:00:00] SEKULOW: -- European and Eurasian Affairs, you saw his testimony, they called them. If we have witnesses we have the right to call that witness and to cross-examine Deputy Assistant Secretary Kent.

The Former United States Ambassador to Ukraine, Ambassador Yovanovitch, they called her, you saw that testimony. We did not have the opportunity to cross-examine her. If we have witnesses we would have to call her. Laura Cooper, Deputy Assistant Secretary of Defense for Russia, Ukraine and Eurasia, they called her, you saw her witness testimony, right here, we did not have the opportunity to cross- examine her. We would have to be given that opportunity. These are the witnesses against the President.

Laura Cooper, Deputy Assistant Secretary of Defense for Russia, Ukraine and Eurasia, again same thing. Dave Hale, the Under Secretary of State for Political Affairs, he was called by the House, you saw his testimony, we never had the opportunity to cross-examine. If we have witnesses, we have to have the opportunity to do that. There were other witnesses that were called or you saw their testimony or heard their testimony, or it was referred to, Catherine Croft, the Special Advisory for Ukraine Negotiations Department of the State, Mark Sandy, the Deputy Associate Director for National Security Program and Christopher Anderson, Special Advisory for Ukraine Negotiation Department of State. You heard their testimony referred to, we did not have the opportunity to cross-examine them. So this isn't going to happen if witnesses are called in a week.

Now, that's just the witness that had been produced, that you have seen, by the House Managers. You are being called upon to make consequential constitutional decisions, consequential decisions for our Constitution. We talk about the burden of proof, I've said this before, I'll say it again 31 times the Managers said they proved their case, 29 times they said the evidence was overwhelming. Manager Nadler, he didn't only say it was overwhelming in his view, on page 739 of the Congressional Record, he's very clear. He says not only is it strong there is no doubt. That's what he says. The one thing that the House Manager's thinks the President Counsel got right is quoting me, talking about Mr. Nadler, Manager Nadler, as saying beyond any doubt it is indeed beyond any doubt. Now, of course, we think that they have not proven their case by any stretch of any proper Constitutional analysis.

In the Clinton investigation they talk about witnesses being called, but the three witnesses that were called had either testified before the Grand Jury or before the House Committees, so weren't (ph) new witnesses. What Mr. Philbin said is correct, under our constitutional design they're suppose to investigate, your to deliberate. But what they're asking you to do is now become the investigative agency, the investigative body. If they needed all this additional evidence, which they said they don't need -- and by the way, not only did they say it in the record, this is House Manager Nadler, quote when he was on CNN back on the 15th of this month, "we brought the articles of impeachment because, despite the fact that we didn't hear from many witnesses we could have heard from, we heard from enough witnesses to prove the case beyond any doubt at all." The same can be said of Representative Lofgren, "you know, we have evidence proving the case through, for example, at the meeting when Bolton said it was a drug deal, well, we have fact witnesses . Hill was there, Vindman was there, Sondland was there." So this idea that they haven't had witnesses is -- that's the smokescreen. You've heard from a lot of witnesses. The problem with the case, the problem with their position is, even with all of those witnesses, it doesn't prove (ph) up in impeachable offense. The articles fail.

I think it's very dangerous if the House runs up, which they did, articles of impeachment quickly. So quickly that they are clamoring for evidence despite the fact that they put all f this evidence forward. They got their wish and impeachment by Christmas, that was the goal. But now they want you to do the work they failed to do.

[16:05:00]

But as I said, time and time again we heard -- you didn't hear from witnesses, you didn't hear from many witnesses. Mr. Schiff, modified that a little bit today, a little bit. You heard from a lot of witnesses, but if we go down the road witnesses, this is not a one- week process. Remember I talked about the waving the wand and Ukraine corruption -- Ukraine -- you're not going to have a witness wand here where we just say, OK, you've got a week to do this and get it done. There's no way that would be proper under due process.

But you know, due process is supposed to be for the person accused and they are turning it on its head. They bought the articles before you. They're the ones that rushed the case up and then held it before you could actually start proceedings. But they're the one that passed the articles before Christmas. You know, we talked a lot about the court system and the fact they were seeking witnesses and when it got close to actually having a court proceeding, they decided that they didn't want to have that witness go through that -- they actually withdrew the subpoena to move the case out.

How many constitutional challenges will we have in this body because they placed a burden on you that they wouldn't take themselves in putting their case forward? If we look at our constitutional framework and constitutional structure, that's not the way it's supposed to work. Now our opposition to this motion is rather straightforward as I've said. We came here ready to try the case on the record that they presented. The record that the managers told us was overwhelming and complete, Mr. Schiff went through every sentence of the articles of impeachment just a few days ago the problem and said proved, proved, proved. The problem is, what it proved, proved, proved, is not an impeachable offense.

You could have witnesses that prove other things but if there's not a violation of the law, if it doesn't meet the constitutional requirement process, the constitutional substantive issues, do these articles -- these allegations rise to a level of a -- sufficient for a removal of office for a duly (ph) elected president of the United States? It doesn't. And especially so, especially so when we are in the election year. I am not going to take the time, your time which is precious to go over each and every allegation about witnesses and (ph) I could. I could do it. I could stand here for a long time; I'm not going to do that. I'm just going to say this, they created a record, do not allow them to penalize the country and the Constitution because they failed to do their job. With that, Mr. Chief justice we yield our time.

J. ROBERTS: Thank you counsel. The House managers have 30 minutes remaining.

SCHIFF: Thank you Mr. Chief Justice. Senators, I want to walk through some of the arguments that you've just heard from president's council. The first were arguments made by Mr. Philbin. Mr. Philbin began by saying the House managers assert that you can't have a trial without witnesses and he said it's not that simple. Actually, it is. It is pretty simple, it is pretty simple. Every courthouse, every state, in every county in the country where they have trials, they have witnesses. And I think you heard Mr. Philbin tie himself into not as to why this should be the first trial in which witnesses are not necessary. But you know, some things are just as simple as they appear. A trial without witnesses is simply not a trial. You can call it something else, but it's not a trial. Known Mr. Sekulow said something very interesting, he said the House investigates and the Senate deliberates.

[16:10:00]

He would rewrite our constitution with that argument. Because the last time I checked, the constitution had said that the House has the sole power of impeachment and the Senate shall try the impeachment, not merely deliberate about it, not merely think about it, not merely wonder about it. I know you're the greatest deliberative body in the world, but not even you can deliberate in a trial without witnesses. But Mr. Sekulow would rewrite the Constitution. Your job is not to try the case, he says, your job is merely to deliberate. That is not what the founders had in mind, not by a long shot.

Now Mr. Philbin says none of these witnesses would have relevance on Article II, I guess conceding they would have relevance evidence on Article I. But that's not true either. Imagine what you will see when you hear from the witnesses who ran the Office of Management and Budget, or imagine what you will see when you read the documents from the Office of Management. What you will see what they have covered up. What you will see is the motive for their complete obstruction of Congress. When you see, not the redacted e-mails, not the fully blacked out e-mails that they dained (ph) to give in the litigation under the Freedom Of Information Act, but what you see what is under those redactions, you will have proof of motive. When you see those documents, you will see just how fallacious these non-assertions of executive privilege are. You will see, in essence, what they have covered up.

It could not be more relevant to whether their panoply of legal argumentation to justify "we shall fight all subpoenas" is merely a cover-up in legal window dressing. So these witnesses and documents are critical on both articles.

Now you also heard Mr. Philbin argue - and again, this is where we expected we'd be at the end of the proceeding, which is essentially they proved their case - they proved their case. We pretty much all know what's gone on here, we all understand just what this President did. No one really disputes that anymore. So what? So what? It's a version of the Dershowitz defense - so what, the President can do no wrong, the President is the state. If the President believes that corrupt conduct would help him get re-elected, if he believes shaking down an ally and withholding military aid, if he believes soliciting foreign interference in our election, whether it be from the Ukrainians or the Russians or the Israeli Prime Minister or anyone else in any form that it may take, so what? He has a God given right to abuse his power and there's nothing you can do about it. It's the Dershowitz principle of constitutional lawlessness.

That's - that's the end all argument for them. You don't need to hear witnesses who will prove the President's misconduct because he has a right to be as corrupt as he chooses under our Constitution and there's nothing you can do about it. God help us if that argument succeeds.

Now, they say that these witnesses already testified and so you don't need to hear from anybody, there were witnesses that already testified and so the House doesn't get to call witnesses in the Senate. That would be like a criminal trial in any courthouse in America where the defendant, if he's rich and powerful enough, can say to the judge "hey judge, the prosecution got to have witnesses in the grand jury, they don't get to call anyone here. They had their chance in the grand jury, they called witnesses in the grand jury, they don't get to call witnesses here."

That's not how it works in any courtroom in America and it's not how it should work in this courtroom. Of course, you heard the argument again, repeated time and time again, the House is saying they're not ready for trial. Of course, we never said we weren't ready for trial. We came here very prepared for trial.

[16:15:00]

I would submit to you the President's team came here unprepared for the trial, unprepared for the fact that there would be, as we all anticipated, a daily drip of new disclosures that would send them back on their heels. We came here to try a case, prepared to try a case and yes, we had, I hope, the not unreasonable expectation that in trying that case, like in every courtroom in America, we could call witnesses. That is not a lack of preparation, that is the presence of common sense. "They didn't try to get Bolton," they argue. Mr. Philbin said "they didn't even try to get Bolton." Now of course we did try to get Bolton and what he said when he refused to show up voluntarily is "if you subpoena me, I will sue you - I will sue you." He said basically what Don McGahn told us nine months ago - "I will sue you, good luck with that."

Now the public argument that was made by his counsel was that he and Dr. Kupperman, out of, you know, just due diligence, they just want a court to opine that it's OK for them to come forward and testify. As soon as the court blesses their testimony, they're more than willing to come in. They just are going to court to get a court opinion saying they could do it.

And so of course we said to them "if that's your real motivation, there's a court about to rule on this very issue of absolute immunity." And very shortly thereafter, that court did. That was the court Judge Jackson in the McGahn case and the judge said this argument about absolute immunity, which yes, presidents have always dreamed about and asserted but which has never succeeded in any court in the land - it was ridiculed in the case of Harriet Miers, it was made short shrift in the case of Don McGahn, where the judge said "no, we don't have kings here."

In the 250 years of jurisprudence, there is not a single case to support the proposition that the President can simply say that "my advisors are absolutely immune from process." And of course in every other non-impeachment context where the courts have looked at the issue of a Congress's power to enforce its subpoenas against witnesses or documents, the courts have said the power to compel compliance through a subpoena is co-equal, co-extensive with the power to legislate, because you can't do one without the other.

If we can't find out whether the President is breaking the law, violating the Impoundment Control Act or any other one when he is withholding aid we appropriated from an ally, how can we legislate a fix to make sure that this never happens again? We can't. If we can't get answers, we can't legislate.

That is the proposition vindicated by every court in the land and of course in the context of impeachment, the courts have said that is never more important - never more important. Now I don't know why, after saying he would sue us and we had to expect that, like Don McGahn, we are still in court nine months later, I don't know why he's changed his mind but I suspect it's for the reasons that if this trial goes forward and he keeps this to himself, it will be very difficult to explain to the country why he saved it for the book.

When he knew information of direct relevance and consequence to a decision that you have to make about whether a President of the United States should be removed from office, it would be very difficult to explain why that was saved for a book.

Well I would submit to you it will be equally difficult for you to explain as it would be for him. But you can ask him that question - why are you willing to testify before the Senate but not the House? And you should ask him that question.

Now, it was said (ph) and it has the character of you should have fought harder to overcome our obstruction. The House should have fought harder to overcome our stonewalling. Shame on the House for not fighting harder to overcome our stonewalling. If only they had fought harder to overcome our stonewalling maybe they could have gotten these witnesses earlier. That's a really hard argument to make while they're stonewalling. You should have tried harder. You should have taken the years that would be necessary to overcome our stonewalling.

[16:20:00]

And the reason why that argument is in such bad faith, as I pointed out to you yesterday that while they're in this body arguing the House was derelict, slapdash, they should have fought harder and longer and endlessly to overcome our stonewalling. While they're making that argument to you, the House should have fought up and down the courts from the district to the Court of Appeals, the Supreme Court and back again. They're in the courthouse arguing the opposite.

They're in the courthouse saying, judge, they're trying to force a subpoena on Don McGahn. You need to throw it out. They don't have the jurisdiction. This is non-justicable (ph). You can't hear this case. That is a really hard argument to make. I credit them for making it with a straight face, but that's the character of it. You should have fought harder to overcome our stonewalling and obstruction.

Now, they also say the chief justice cannot decide issues of privilege. No, the chief justice can't make those decisions. You need to let us litigate this up and down the court system. That's a pretty remarkable argument because the Senate rules allow the presiding officer to make judgments to rule on issues of evidence, materiality, and privilege. That is permitted under your own rules.

We don't need to go up and down the courts. We've got a perfectly good judge right here. Now, you heard our proposal yesterday that we take a week - just a week to depose the witnesses that we feel are relevant, that they feel are relevant, and that the justice rules are relevant. Just one week.

Now, they can say that the Constitution requires them to go to court, but of course it doesn't. There is absolutely no constitutional impediment from these fine lawyers (ph) saying, you know, that's eminently reasonable. We will allow a neutral party, the Chief Justice of the United States of America, to rule on whether a witness is material or immaterial, whether they're being called for purposes of probative evidence or harassment, and whether are you making a proper claim of privilege or merely trying to hide crime or fraud.

The concern they have is not that the chief justice will be unfair but rather that he will be fair. But do not make any mistake about it. Do not let them suggest that there is something constitutionally impermissible or it would violate the president's rights to allow the Chief Justice of the United States to make those decisions in this court because he is empowered to do so by your rules and by the Constitution which gives you the sole power to try impeachments. In the sole exercise of your power to try impeachments, you can say we will allow the chief justice to make those decisions.

Now, Mr. Sekulow said that you have heard the testimony of 13 witnesses, and I think the impression is meant to be given if not who you to know otherwise the maybe the people watching at home that they must have been in between errands while watching the Senate trial and missed where those 13 witnesses came before the Senate and testified, but of course you heard no live testimony in this body. There wasn't any live testimony before this body, and I don't recall any of you in that super secret basement bunker they've been talking about.

Now, I'll admit there were 100 member eligible to be there, so maybe I missed one of you, but I don't think you were there for the live testimony in the House. Now, Mr. Sekulow says the president was deprived of his right of calling these witnesses himself and cross examining these witnesses in the House, but that's not true either because the president was eligible to call witnesses in his defense in the Judiciary Committee and chose not to do so.

[16:25:00]

If the president's counsel felt that, you know, Bill Taylor says that he spoke with Sondland right after this phone call with the president and Sondland talked about how the military aid was conditioned on these investigations, the president wanted Zelensky in a public box, and I'd really like to cross examine that West Point grad Vietnam vet because I don't believe him.

You know, they could have called Bill Taylor in the Judiciary Committee and cross examined him. Or they could have called Mick Mulvaney and put him under oath and let him contradict what renowned (ph) John Bolton would say, but of course they didn't do that. No, there's - they said merely just get it over with in the House for all there was too quick, too slapdash, get it over with in the House because as the president said when it comes to the Senate we'll have a real trial where he gets to call witnesses, but they change their tune because now they know what they really have known all along which is those witnesses would deeply incriminate this president.

And so, instead they have fallen back on the argument that if we're going to go down the road to having a real trial -- if we're going to go down the road into have a real trial, we, the president's lawyers, are going to make you pay. And the form of this argument is we are going to call every witness under the sun. We're going to call every witnesses that testified before the House. We're going to call every witness that we can think about that would help smear the Bidens. We are going to keep you here until kingdom come. That's essentially the argument that they're making when Mr. Sekulow says we're going to bring in Fiona Hill and we're going to bring in Tim Morrison, we'll bring in this witness and bring in that witness. You have the sole power to try this case. You do not have to allow the president's lawyers to abuse your time or this process. You have the power to decide, no, we have each side 24 hours to make their arguments. we're going to give each side a shared week to call their witnesses. You have that power. If you didn't, you couldn't have constricted the amount of time for our argument. You can likewise determine how much time should be taken with witness testimony. Now, Mr. Sekulow ended his argument against witnesses with where Mr. Philbin essentially began - it all comes back to the Dershowitz principle.

What's the point of witnesses if the President can do whatever he wants under Article 2? What's the point of calling witnesses, what's the point of having a trial if the President can do whatever he wants under Article 2?

The only constraining principle - and I think that one of the senators asked yesterday "what's the limiting principle in the Dershowitz argument?" If a President can corruptly seek foreign interference in his election because he believes his election is in the national interest, then you cannot impeach him for it, no matter how damaging it may be to our national security. What is the limiting principle?

And I suppose the limiting principle is only this, it only requires the President to believe that his re-election is in the national interest. Well, it would require an extraordinary level of self- reflection and insight for a President of the United States to conclude that his own re-election was not in the national interest.

Not unprecedented, mind you. I think that was the decision that LBJ ultimately arrived at but I would not want to consider that a meaningful limitation on presidential power and neither should you.

Finally, counsel expressed some indignance - indignance that we should suggest that it's not just the Senate - it's not just the President, rather, who is on -

[16:30:00]