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Trump Defense Team Delivers Closing Arguments. Aired 1:30-2p ET

Aired February 3, 2020 - 13:30   ET



PAT PHILBIN, DEPUTY COUNSEL TO PRESIDENT DONALD TRUMP: But the idea that there is no time for dealing with that friction with the executive branch is really antithetical to the proper functioning of the separation of powers. It goes against part of the way the separation of powers is supposed to work; that interbranch friction is meant to take time to resolve.

It's meant to slow things down and to be somewhat difficult to work through, and to force the branches to work together to accommodate the interests of each branch, not just to jump to the conclusion that, "Well, we have no time for that. We have to assert absolute authority on one side of the equation."

And this is something that Justice Brandeis pointed out in a famous dissent in Myers versus the United States that has since been cited many times by the court majority.

He said, quote, "The doctrine of the separation of powers was adopted by the Convention of 1787 not to promote efficiency" -- so he's saying, not to make government move quickly -- "but to preclude the exercise of arbitrary power.

The purpose was not to avoid friction, but by means of the inevitable friction incident to the distribution of the governmental powers among the departments to save the people from autocracy."

That is a vitally important principle that the friction between the branches, even if it means taking longer, even if it means not jumping straight to impeachment, is part of the constitutional design and it's required to force the branches to determine incrementally where their interests lie, so to resolve disputes incrementally and not to jump straight to the ultimate nuclear weapon in the Constitution.

We've also heard from the House managers that everything the president did here -- asserting prerogatives of his office, asserting principles of immunity -- must be wrong, it must be rejected because only the guilty will assert a privilege, only the guilty won't allow evidence.

That is definitely not a principle of American jurisprudence. It's antithetical to fundamental principles of our system of laws. As we pointed out in our trial memorandum, in Bordenkircher v. Hayes

and in other decisions, the Supreme Court has made clear that the very idea of punishing someone for asserting rights or privileges or suggesting that asserting the right or privilege is evidence of guilt is contrary to basic principles of due process.

And it takes on an even more malignant tenor to it when that principle is asserted in the context of a dispute between the branches relating to the boundaries of their relative powers because what the House is essentially asserting in this case is that any assertion of the prerogatives of the office of the president, any attempt to maintain the principles of separation of powers, of executive confidentiality that have been asserted by past presidents can be treated by the House as evidence of guilt.

And here, their entire second article of impeachment is structured on the assumption that the House can treat the assertion of principles grounded in the separation of powers as an impeachable offense. I mean, boiled down to its essence, it is an assertion that defending the separation of powers -- if the president does it in a way they don't like, in a time they don't like -- can be treated as an impeachable offense.

And that's an incredibly dangerous assertion because if it were accepted, it would fundamentally alter the balance between different branches of our government.

It would suggest -- and Professor Turley explained this, Professor Dershowitz explained it here -- that if Congress makes a demand on the Executive and the Executive resists based on separation of powers principles that past presidents have asserted, Congress can nonetheless say "we decided to proceed by impeachment, we have the sole power" -- and this is the principle they assert in the House Judiciary Committee report -- "we have the sole power of impeachment, that means we are the sole judge of our own actions.

There's no need for accommodation, there's no need for the courts. We will determine that any resistance you provide is itself impeachable."

That would fundamentally transform our government by essentially giving the House the same sort of power as a parliamentary system, to use impeachment as, in effect, a vote of no confidence against a Prime Minister.


Not the way the framers set up our three branch system of government, with a powerful Executive who would be independent from the legislature.

That's why Professor Turley explained that the second article of impeachment here would be an abuse of power by Congress. It would make the Executive dependent on Congress in a manner antithetical to the system that the framers envisioned.

So why is it that there are all of these defects in the House managers case for impeachment? Why are they asserting principles like only the guilty would assert privileges?

That's not part of our system of law. Why are they asserting that if the Executive resists, the House has the sole power to determine the boundaries of its own power in relation to the Executive? Also not something that is in our system of jurisprudence.

I think it's because -- and why -- why the lack of due process in the proceedings below? I think as we've explained is because this was a purely partisan impeachment from the start. It was purely partisan and purely political and that's something that the framers foresaw.

And I'll point to one passage from Federalist No. 65. A number of different passages from that have been cited over the course of the past week but I don't think this one has. It's just after Hamilton points out -- he warns that "An impeachment in the House could be the result of persecution of an intemperate or designing majority in the House of Representatives."

And then he goes on: "Though this later supposition may seem harsh and might not likely often to be verified, yet it ought not to be forgotten that the demon of faction will, at certain seasons, extend his scepter over all numerous bodies of men."

Now that's very 18th century language, we don't talk about demons extending their scepter over men, but it's prescient nonetheless. We might not be comfortable with the terms but it's accurate for what can happen and that is what's happened in this impeachment.

This was a purely partisan, political process. It was opposed bipartisanly in the House. It was done by a process that was not designed to persuade anyone or to get to the truth or to provide process and abide by past precedents, it was done to get it finished by Christmas on a political timetable and it's not something that this chamber should condone.

That, in itself, provides a sufficient and substantial reason for rejecting the articles of impeachment. Members of the Senate, it's been an honor to be able to address you over the past week and a half or two weeks and I thank you for your attention and I yield to Mr. Sekulow.

JAY SEKULOW, ATTORNEY TO PRESIDENT DONALD TRUMP: Mr. Chief Justice, Majority Leader McConnell, Democratic Leader Schumer, House managers, I want to join my colleagues in thanking you for your patience over these two weeks. I want to focus on one last point.

We believe that we have established overwhelmingly that both articles of impeachment fail to allege impeachable offenses and that therefore both articles one and two must fail. This entire campaign of impeachment that started from the very first day that the president was inaugurated was a partisan one and it should never happen again.

For three years, this push for impeachment came straight from the president's opponents and when it finally reached a crescendo, it put this body, the United States Senate, into a horrible position. I want to start by taking a look back. On the screen is a graphic of a Washington Post headline. On January 20th, 2017, "The Campaign to Impeach President Trump Has Begun." This was posted 19 minutes after he was sworn in.

I also want to play a video, where members, as early as January 15th, 2017, before the president was sworn into office, were calling for his impeachment.


REP. JAMIE RASKIN (D-MD): I want to say this for Donald Trump, who I may well be voting to impeach.


KEITH ELLISON, ATTORNEY GENERAL OF MINNESOTA: I think that he -- Donald Trump has already done a number of things which legitimately raise the question of impeachment.

REP. MAXINE WATERS (D-CA): And I will fight every day until he is impeached.

REP. AL GREEN (D-TX): I rise today, Mr. Speaker, to call for the impeachment of the president of the United States of America.

REP. STEVE COHEN (D-TN): The main reason I'm interested is not so much to win the Senate, which is a byproduct. It's because I think he's committed impeachable offenses and he has the scarlet I on his chest.

REP. JOAQUIN CASTRO (D-TX): But if we get to that point, then, yes, I think that's grounds to start impeachment proceedings.

COHEN: So we're calling upon the House to begin impeachment hearings immediately.

UNIDENTIFIED FEMALE: Why do you think that President Trump specifically should be impeached?

REP. ADRIANO ESPAILLAT (D-NY): Well, there are five reasons why we think he should be impeached.

UNIDENTIFIED MALE: On the impeachment of Donald Trump, would you vote yes or no?

REP. ILHAN OMAR (D-MI): I would vote yes.

REP. ALEXANDRIA OCASIO-CORTEZ (D-NY): I would vote -- I would vote to impeach.

REP. RASHIDA TLAIB (D-MI): Because we're going to go in there, we're going to impeach the (inaudible).

REP. BRAD SHERMAN (D-CA): I introduced articles of impeachment in July of 2017. All I did yesterday was make sure that those articles did not expire.

GREEN: I'm concerned that if we don't impeach this president, he will get re-elected.

SEN. ELIZABETH WARREN (D-MA): It is time to bring impeachment charges against him.

REP. JERRY NADLER (D-NY): My personal view is that he richly deserves impeachment.


SEKULOW: One of the members of the House of Representatives said, "We're bringing these articles of impeachment so he doesn't get elected again." And here we are, 10 months before an election, doing exactly what they predicted.

The whistleblower's lawyer, Mr. Zaid, sent out a tweet on January 30th, 2017, let me put that up on the screen: "The coup has started. First of many steps. Rebellion. Impeachment will follow ultimately." And here we are.

What this body, what this nation, and what this president has just endured, what the House managers have forced upon this great body is unprecedented and unacceptable. This is exactly and precisely what the founders feared. This was the first totally partisan presidential impeachment in our nation's history, and it should be our last.

What the House Democrats have done to this nation, to the Constitution, to the Office of the President, to the president himself and to this body is outrageous. They have cheapened the awesome power of impeachment. And unfortunately, of course, the country is not better for that.

We urge this body to dispense with these partisan articles of impeachment for the sake of the nation, for the sake of the Constitution. As we have demonstrably proved, the articles are flawed on their face. They were a product of a reckless impeachment inquiry that violated all notions of due process and fundamental fairness.

And then, incredibly -- incredibly, when these articles were finally brought to this chamber without a single Republican vote, the managers then claimed that, now -- now they need more process, now they need more witnesses, that all of the witnesses that they compiled and all the testimony that you heard was not enough, that your job was to do their job, the one, frankly, they failed to do.

We've already said, many times, the charges themselves do not allege a crime or a misdemeanor, let alone a high crime or misdemeanor. There is nothing in the charges that could permit the removal of a duly elected president or warrant the negation of an election and the subversion of the American people's will, and that should be whatever party you're affiliated with.

You are being asked to do this when, tonight, citizens of Iowa are going to be caucusing for the first caucus for the presidential season -- Election Season -- for the Democratic Party, tonight.

I think there's one thing that's clear. The president has had a concern about other countries carrying their fair share of burdens, or financial aid. No one can doubt -- and I think we've clearly set forth -- the issue of corruption in Ukraine. The president's and the administration's policy on evaluating foreign aid and the conditions upon which it's given have been clear. Mr. Purpura laid that out in great detail.


The bottom line is that the president's opponents don't like the president and they really don't like his policies. They objected to the fact that the president chose not to rely, each and every time, on the advice of some of his subordinates, even though he -- not those unelected bureaucrats, who work for him -- were elected to office. The president, under our constitutional structure, is the one who decides our nation's foreign policy.

Here is a perfect example, the House managers brought this up frequently, Lieutenant Colonel Vindman. He admitted on page 155 of his transcript testimony that he did not know if there was a crime or anything of that nature -- that's his quote -- but that he again, quote, "had deep policy concerns."

So there you have it. The real issue is policy disputes. Elections have consequences, we all know that. And if you do not like the policies of a particular administration or a particular candidate, you are free and welcome to vote for another candidate. But the answer is elections, not impeachment.

To be clear, in our country, in the United States, the president, elected by the American people, is, in the words of the Supreme Court, "the sole organ of the federal government in the field of international relations and foreign policy for our government." No unelected bureaucrats, not unhappy members of the House of Representatives.

And however you were to define high crimes and misdemeanors, there is no definition that includes disagreeing with a policy decision as an acceptable ground to removal of a president of the United States, none. The first article for -- of impeachment is therefore constitutionally invalid, and should be immediately rejected by the Senate.

Now, as to the second article of impeachment, President Trump in no way obstructed Congress. The president acted with extraordinary transparency by declassifying, releasing the transcript of the July 25th call and the earlier call. It is that July 25th call which is purportedly at the heart of the articles of impeachment.

He did so soon after the inquiry was announced, and despite the fact that privileges apply that could have been asserted, he released them anyways in order to facilitate the House's inquiry and cut through all of it -- all of the hearsay, all of the histrionics -- to get the transcript out.

Now, I want to take a moment, because my colleague, Deputy White House Counsel Pat Philbin, addressed this idea of privilege. I've heard over and over again -- and you have, too -- phrases like coverup, that the assertion of a privilege is a coverup. Here's what the Supreme Court of the United States has said about privileges in a variety of contexts:

To punish a person because he has done what the law allows him to do is a due process violation of the basic order, the basic sort (ph), and for an agent of the state to pursue a course of action whose objective is to penalize a person's reliance on his constitutional rights is patently unconstitutional," and how much more so when you're talking about the president of the United States?

How about this? And this goes in the context of assertions of privilege of other constitutional privileges. The allegation has been that if you assert a privilege you're assumed to be guilty. That's been the assertion. Why would -- why would you do that?

Well, we've -- we've explained at great length, and I do not want to go over that again, the importance of the executive privilege and what it means to separation of powers and the functioning of our government. But I will say this: As the Supreme Court has recognized in other contexts with other privileges, the privilege is served to protect the innocent who otherwise might be ensnared by ambiguous circumstances.

In another Supreme Court case, Guinn v. the United States, "The privilege this court has stated was generally regarded then as now as a privilege of great value, a protection of the innocent." The opinion goes on to say, "in a safeguard against heedless, unfounded or tyrannical prosecutions."

I traced for you, and I'm not going to do it again how all of this started all those years ago, three years ago, how all of this began. There is no point to go over that because that evidence is undisputed, and the FISA court's most recent order has put that in fair play.


We've talked about the fact that the House violated its own fundamental rules in a series of unlawful subpoenas. I won't go over that again, and Mr. Philbin laid that out in great detail.

But I do think it's important to note that when seeking the advice of the president's closest advisors, despite the well-known bipartisan guidance from the Department of Justice regarding immunity, the House managers ask -- act as if it does not exist.

They sought testimony on matters -- on matters from the executive branches, confidential, internal decision-making process on matters of foreign relations and national security, and that is when protections are at their highest level.

Let's not forget that the House barred the attendance of executive branch counsel at witness proceedings when executive branch members were being examined. Notwithstanding the substantial abuses of process, the executive branch responded to each and every subpoena and identified the specific -- specific deficiencies found in each. You cannot just remove constitutional violations by saying, "You didn't comply."

You've heard that one recipient of a subpoena -- and this is, in fact -- we've talked about it a number of times, but I think as we -- we wrap up I think it's worth seeing -- saying again. One subpoena recipient did seek a declaratory judgment as to the validity of the subpoena that he had received. It was sent up to go to court. A judge was going to make a decision.

The House withdrew the subpoena and mooted the recipient's case before the court could rule. Now, was that because they didn't like the judge that was selected? Was it because they didn't like the way the ruling was going to go? Was it they didn't mean to have that witness in the first place? Whatever the reason, there is one undisputed fact: As the case was in court they mooted it out by removing the subpoena.

The assertion of valid constitutional privileges cannot be an impeachable offense, and that's what Article 2 is based on: the obstruction of Congress.

For the sake of the Constitution, for the sake of the Office of the President this body must stand as a steady bulwark against this reckless and dangerous proposition. Doesn't just affect this president; it affects every man or woman who occupies that high office.

So as we said with the first article of impeachment, we believe the second article of impeachment is invalid. It should also be rejected. In passing the first article of impeachment the House attempted to usurp the president's constitutional power to determine policy, especially foreign policy.

In passing the second article of impeachment the House attempted to control the constitutional privileges and immunities of the executive branch, all of this while simultaneously disrespecting the framers' system of checks and balances, which designates the judicial branch as the arbiter of interbranch disputes.

By approving both articles, the House of Representatives violated our constitutional order, illegally abused their power of impeachment in order to obstruct the president's ability to faithfully execute the duties of his office.

These articles fail on their face, as they do not meet the constitutional standard for impeachable offenses. No amount of testimony could change that fact.

We've already discussed some of the specifics. I think Alexander Hamilton's been quoted a lot, and there's a reason. What has occurred over the past two weeks -- really, the past three months -- is exactly what Alexander Hamilton and other founders of our great country feared.

I believe that Hamilton was prophetic in Federalist 65 when he warned how impeachment had the ability to "agitate" -- his words -- "the passions of the whole community and divide it into parties more or less friendly or inimical to the accused." He warned that impeachment would, and I quote, "connect itself with pre-existing fractions and will enlist all their animosities, partialities, influence and interests on one side or on the other."

He continued, "The convention, it appears, thought the Senate" -- this body -- "most fit as the depository of this important trust; those who best can discern the intrinsic difficulty of the thing will be the least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it."


In the same Federalist 65, Hamilton regarded the members of this Senate not only as the inquisitors for the nation, but as the representatives of the nation's -- the nation as a whole.

He said these words, quote, "Where else than in the Senate could have been found a tribunal sufficiently dignified or significantly independent? What other body would be likely to feel confident enough in its own situation to preserve unawed and uninfluenced the necessary impartiality between an individual accused and the representatives of the people, his accusers?"

You took an oath, they questioned the oath. You are sitting here as a trier of fact, they said the Senate's on trial. Based on all of the presentations that we've made in our trial brief and the arguments that we put forth today, again we believe both articles should be immediately rejected.

Now, our nation's representatives holding office in this great body must unite today to protect our Constitution and separation of powers and you know there was a time not that long ago, even within this administration, where bipartisan agreements could be reached to serve the interests of the American people. Take a listen to this, take a listen.


UNIDENTIFIED MALE: Today, we had a beautiful bipartisan moment where Democrats and Republicans -- working together to keep that fentanyl out of our country, to use these devices to accomplish that goal. It's not perfect, we need to do a lot more, but today was a very good step and I want to praise all of the people, Democrats and Republicans and the President, for working together on this bill.

UNIDENTIFIED FEMALE: As (inaudible) said and we can see by the people assembled here, if we work together in a bipartisan way, we can get things done and this is a place where we can all agree that we've got to do more and where we can work together, so I applaud everyone's efforts.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: We are proudly joined today by so many members of Congress, Republicans, Democrats who worked very, very hard on this bill. This was really an effort of everybody. It was a bipartisan success, something you don't hear too much about but I think you will be. I actually believe we may be -- will be over the coming period of time. I hope so, I think so. It's so good for the country.

Thank you, everybody, this was incredible bipartisan support. We passed this in the Senate 8 to 12. That's unheard of. And then in the House, we passed it 358 to 36.

UNIDENTIFIED MALE: -- be here to help celebrate your signing of this next step in this critical women's growth and prosperity and development initiative. It dovetails nicely with the BUILD Act, bipartisan bill you signed into law with the WE Act, which recognizes this as a critical strategy, so I think this is a tremendous initiative. Thank you, Mr. President.

TRUMP: Thank you very much, I appreciate it.


SEKULOW: This is what the American people expect. I simply ask this body to stand firm today, protect the integrity of the United States Senate, stand firm today and protect the office of the President, stand firm today and protect the Constitution, stand firm today and protect the will of the American people and their vote, stand firm today and protect our nation and I ask that this partisan impeachment come to an end, to restore our constitutional balance, for that is in my view and in our view what justice demands and the Constitution requires.

With that, Mr. Chief Justice, I yield my time to the White House counsel, Mr. Pat Cipollone.

PAT CIPOLLONE, WHITE HOUSE COUNSEL: Thank you, Mr. Chief Justice, thank you, members of the Senate. I will leave you with just a few brief points. First, I want to express on behalf of our entire team our gratitude. Our gratitude to you, Mr. Chief Justice for presiding over this trial, our gratitude to you, Leader McConnell, our gratitude to you, Democratic Leader Schumer, and all of you on both sides of the aisle for your time and attention.

I also want to express our -- my gratitude to our team, it's large and with -- with a large number of people who have helped in this effort, I won't name them all but I want to thank them for their effort and their hard work in the defense of the Constitution, in defense of the President, in defense of the American peoples right to vote.

I want to thank, as members of that team, the Republican members of the House of Representatives who have also been engaged in that effort throughout this tire -- entire period of time and the Democrats in the House who voted against this partisan impeachment.