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Trump's Lawyers Argue Against Constitutionality of Trial. Aired. 3:30-4p ET.

Aired February 9, 2021 - 15:30   ET

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


BRUCE CASTOR, TRUMP IMPEACHMENT LAWYER: And the people represented by the members of the United States House of Representatives become incensed. And what do you do if a federal issue, if you're back in suburban Philadelphia, and something happens that makes the people who live there incensed?

[15:30:04]

You call your congressmen and your congressmen, elected every two years, with their pulse on the people of their district, 750,000 people, they respond, and boy do they respond. You -- the -- the congressman calls you back, a staffer calls you back, you get all of the information that they have on the issue, sometimes you even get invited to submit language that would improve whatever the issue is.

Well, when the pendulum swings, perhaps the next person that gets impeached and is set here for you to consider is Eric Holder, during Fast and Furious, the Attorney General of the United States, or any other person that the -- the other party considers to be a political danger to them down the road because of their avowed abilities and -- and being articulate and having a resume that -- with that -- that shows that they're capable.

I picked Eric simply because I think -- I think he has a -- a tremendous -- he's had a tremendous career and he might be somebody that some Republican some mayor -- where might be worried about. So maybe the next person they go after is Eric Holder.

And, you know, the Republicans might regain the House in two years. History does send -- tend to suggest that the party out of power in the White House does well in the midterm elections and certainly the -- the -- the 2020 elections, the House gained -- the House majority narrowed and there was a gain of Republicans.

So the members of the House, they have to worry about these consequences because if they don't react to whatever the problem of the day is, somebody in that jurisdiction there, somebody is going to say "if you make me the congressman, I'll react to that," and that means that the sitting member has to worry about it because their terms are short.

And it's not just members of the House of Representatives with their short -- with their short terms. I saw on television the last couple of days the honorable gentleman from Nebraska, Mr. Sasse, I saw that he faced backlash back home because of a vote he made some weeks ago, that it -- a political party was complaining about a decision he made as a United States senator.

You know, it's interesting because I don't want to steal the thunder from the other lawyers but Nebraska -- and you're going to hear -- is quite a judicial thinking place, and just maybe Senator Sasse is onto something, and you'll hear about what it is that the Nebraska courts have to say about the issue that you all are deciding this week. There seem to be some pretty smart jurists in Nebraska and I can't believe a United States senator doesn't know that.

A senator like the gentleman from Nebraska, whose Supreme Court history is ever present in his mind, and rightfully so, he -- he faces the whirlwind, even though he knows what the judiciary in his state thinks. People back home will demand their House members continue the cycle as political fortunes rise and fall.

The only entity that stands between the bitter infighting that led to the downfall of the Greek republic and the Roman republic and the American republic is the Senate of the United States. Shall the business of the Senate and thus the nation come to a halt, not just for the current weeks, while a new president is trying to fill out his administration, but shall the business of the Senate and the nation come to a halt because impeachment becomes the rule rather than the rare exception?

I know you can see this is a possibility because not a single one of you ever thought you would be doing a second impeachment inside of 13 months. And the pressure will be enormous to respond in kind.

[15:35:00]

To quote Everett Dirksen, "the gallop men and women of the Senate will not allow that to happen and this republic will endure" because the top responsibility of the United States senator and the top characteristic that you all have in common -- and boy, this is a diverse group -- but there isn't a single one of you who A, doesn't consider yourself a patriot of the United States, and two, there isn't a single one of you who doesn't consider the other 99 to be patriots of the United States. And that is why this attack on the Constitution will not prevail.

The document that is before you is flawed. The rule of the Senate concerning impeachment documents, articles of impeachment, Rule 23, says that such documents cannot be divided.

You might have seen that we wrote that in the answer. It might have been a little legalistic or legalese for the newspapers to opine on very much, but there is some significance. The -- the House managers, clever fellows that they are, they cast a broad net. They need to get 67 of you to agree they're right.

And that's a good strategy, I would use the same strategy except there is a rule that says you can't use that strategy. You see, Rule 23 says that the -- the -- the article of impeachment's indivisible.

And the reason why that's significant is, you have to agree that every single aspect of the entire document warrants impeachment because it's an all-or-nothing document. You can't cut out parts that you agree with, warrant impeachment, and parts that don't. Because it's not divisible, it flat-out says, in the Senate rules, it's not divisible.

Now, previous impeachments like President Clinton said the -- the president shall be found guilty of high crimes and misdemeanor for engaging in one or more of the following, and then gives a list. So all you had to do was win one. But they didn't do that here, it has to be all or nothing.

And some of these things that you are asked to consider might be close calls in your mind. But one of them is not. The argument about the 14th Amendment is absolutely ridiculous. The House managers tell you that the president should be impeached because he violated the 14th Amendment.

And here's what the 14th Amendment says. "No person shall be a senator or representative in Congress or elected president and vice president or hold any office civil or military under the United States or any other state who, having previously taken an oath as a member of Congress or as an officer of the United States or a member of any state legislature or as an executive or judicial officer of any state to support the Constitution, and shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may vote, by two thirds of each house, to remove such disability."

Now, it doesn't take a constitutional scholar to recognize that that's written for people who fought for the Confederacy, previous military officers who were in the government (ph) the Confederacy, and it doesn't take a constitutional scholar to require that they be convicted first in a court, with due process of law. So it never -- that question can never be ripe until those things have happened.

Now, if you agree with those arguments -- and I know you all get your constitutions out and you'll read it -- and if you agree with those arguments, the suggestion that the 14th Amendment applies here is ridiculous. And if you come to that conclusion, then because the managers have not separated out the counts, any counts within the -- the article of impeachment, the whole thing falls.

I didn't write that, they are married to that.

[15:40:00]

I wrote it out in individual responses because I didn't know how to respond to the -- the cast-a-wide-net effort. And fortunately, senators sometime in the past realized that you can't do that because you passed a rule that says, "Hey, you can't do that."

So that's why it's flawed. It's flawed in other ways too, and my colleagues will -- will explain that. I was struck, I thought the -- that the House managers who spoke earlier were brilliant speakers. And I made some notes, and they'll hear what I think about some of the things they said later, when I'm closing the case. I thought they were brilliant speakers, and I loved listening to them. They're smart fellas.

But why are the House managers afraid, and why is the majority of the House of Representatives afraid of the American people? I mean, let's understand why we are really here. We are really here because the majority in the House of Representatives does not want to face Donald Trump as a political rival in the future.

That's the real reason we're here, and that's why they have to get over the jurisdictional hurdle, which they can't get over. But that's why they have to get over that: in order to get to the part of the Constitution that allows removal. So that's the -- I -- nobody says it that plainly, but unfortunately I have a way of speaking that way.

And the reason that I am having trouble with the -- with the argument is, the American people just spoke. And they just changed administrations. So in the light most favorable to my colleagues on the other side of the aisle here, their system works.

The people are smart enough, in the light most favorable to them, they're smart enough to pick a new administration if they don't like the old one -- and they just did, and he's down there on Pennsylvania Avenue now, probably wondering how come none of my stuff is happening up at the Capitol.

Why -- why do you -- the members of the House of Representatives, the majority of the House of Representatives, why are they afraid of the very people that sent them to do this job, the people they hope will continue to send them back here? Why are they afraid that those same people who were smart enough to pick them as their congressman, aren't smart enough to pick somebody who is a candidate for president of the United States?

Why fear that the people will, all of a sudden, forget how to choose an administration in the next few years? And in fact, this happens all the time, when there are changes in administrations from one-term presidents to others. Well, Nixon was sort of a one and a half term, but Nixon to Ford, Ford to Carter, Carter to Reagan, Bush 41 to Clinton. It happens, the people get tired of an administration they don't want, and they know how to change it. And they just did.

So why think that they won't know how to do it in 2024 if they want to? Or is that what the fear is? Is the fear that the people in 2024 in fact will want to change and will want to go back to Donald Trump, and not the current occupant of the White House, President Biden? Because all these other times the people were smart enough to do it -- choose who the president should be.

And all these other times they were smart enough to chose who their members of Congress were -- and by the way, choose you all as well. But they're not smart enough to know how to change the administration -- especially since they just did. So it seems pretty evident to me that they do know how.

It has worked 100 percent of the time -- 100 percent of the time in the United States when the people got -- had been fed up with and had enough of the occupant of the White House they change the occupant of the White House.

[15:45:00]

Now, I know that one of the strengths of this body is its deliberative action. And I saw Senator Manchin on the T.V. the other night talking about the filibuster, and the main point was that Senator Manchin was explaining to those of us who don't operate here all the time, that this body has an obligation to try to reach consensus across the aisle to legitimize the decisions it makes. Obviously he's capable of making his own pronouncements on it, but that's what it came across on the television.

And I think that that is a good way of saying why the Senate of the United States is different than other places. You know, the Constitution is a document designed to protect the rights of the minority, not the rights of the majority. Congress shall make no law abridging all of these things, that's because those were the things that were of concern at the time.

It's easy to be in favor of liberty, and equality, and free speech when it's popular. I think that I want to give my colleague, Mr. Schoen an opportunity to explain to all of us the legal analysis on jurisdiction.

I'll be quite frank with you, we changed what we were going to do on account that we thought that the House manager's presentation was well done. And I wanted you to know that we have responses to those things.

I thought that what the first part of the case was, which was the equivalent of a motion to dismiss was going to be about jurisdiction alone and one of the fellows who spoke for the House managers, was a former Criminal Defense Attorney seemed to suggest that there's something nefarious that we were discussing jurisdiction and trying to get the case dismissed.

But this is where it happens in the case because jurisdiction is the first thing that has to be found. We have counterarguments to everything that they raised, and you will hear them later on in the case from Mr. Vanderbeam (ph) and from myself.

But on the issue of jurisdiction, the scholarly issue of jurisdiction -- I'll leave you with this before I invite David to come up and give you the (inaudible) explanation. Some of this was shown on the screen, but Article One, Section Three says judgments in cases of impeachment shall not extend further than to removal from office, and disqualification to hold any office of honor, trust, profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment trial, judgment and punishment according to the law.

So this idea of January amnesty is nonsense. If my colleagues on this side of the chamber actually think that President Trump committed a criminal offense -- and let's understand, a high crime is a felony, and a misdemeanor is a misdemeanor. The words haven't changed that much over time.

After he's out of office, you go and arrest him. So there is no opportunity where the president of the United States can run rampant in January at the end of his term and just go away scot free. The Department of Justice does know what to do with such people, and so far I haven't seen any activity in that direction. And not only that, the people who stormed this building and breached it were not accused of conspiring with the president.

But the section I read, judgment -- in other words, the bad thing that can happen -- the judgment, in cases of impeachment, ie what we are doing. Shall not extend further than removal from office. What is so hard about that? What -- which of those words are unclear? Shall not extend further than removal from office?

[15:50:00]

President Trump no longer is in office. The object of the Constitution has been achieved. He was removed by the voters. Mr. Schoen, are you ready? Now that I've taken all of his (ph) time.

DAVID SCHOEN, TRUMP IMPEACHMENT LAWYER: Thank you, Mr. President (ph).

Leaders -- quick adjustment. I stand before you on what (ph) I always thought as the hallowed ground of democracy. In this room American lives have been changed so dramatically, in just my lifetime, through so many of your legislative initiatives.

From the Civil Rights Act when I was a child through most recently the First STEP Act. Laws that have provided major opportunities for Americans to move forward and upward, and more fully enjoy all of the attributes of what has been the greatest nation on earth.

I've seen the changes these laws have made through my clients every day for the past 36 years. These laws have enabled me to fight for their enjoyment of a fair state in our American project.

I stand before a group of 100 United States senators who have chosen to serve your country from all corners of this great nation, giving up all sorts of professions, time with family, and perhaps other more lucrative opportunities to serve your country. Mr. President, you are a man who so honorably served this nation in the Senate and in public service before your tenure here.

It is an honor to appear in this historic hall of democracy, yet today that honor is tempered by an overriding feeling of grave concern. Grave concern for the danger to the institution of the presidency that I believe even convening these proceedings indicates.

The joy I believed I would feel if I ever had the great privilege of appearing before this body is replaced by sadness and pain. My overriding emotion is frankly wanting to cry for what I believe these proceedings will do to our great, so long-enduring, sacred Constitution and to the American people on both sides of the great divide that now characterizes our nation.

Esteemed members of the Senate, going forward with this impeachment trial of a former President of the United States is unconstitutional for reasons we have set out in our brief, some of which we will focus on here, and as a matter of policy it is wrong as wrong can go for all of us as a nation.

We are told by those who favor having these proceedings that we have to do it for accountability, but anyone truly interested in real accountability for what happened at the Capitol on July 6 -- January 6 would, of course, insist on waiting for a full investigation to be completed. Indeed, one is underway in earnest already, intent on getting to the bottom of what happened.

Anyone interested in ensuring that it's truly the one or ones responsible from whom accountability is sought would more than willingly wait for the actual evidence, especially with new evidence coming in every day about preplanning, about those who were involved, and about their agenda baring no relationship to the clams made here.

They say you need this trial before the nation can heal, that the nation cannot heal without it. I say our nation cannot possibly heal with it.

With this trial, you open up new and bigger wounds across the nation for a great many Americans see this process for exactly what it is, a chance by a group of partisan politicians seeking to eliminate Donald Trump from the American political scene and seeking to disenfranchise 74 million plus American voters and those who dare to share their political beliefs and vision of America.

[15:55:00]

They hated the result of the 2016 election and want to use this impeachment process to further their political agenda. These elitists have mocked them for four years. They've called their fellow Americans who believe in their country and their Constitution deplorables.

And the latest talk is that they need to deprogram those who supported Donald Trump and the Grand Old Party, but at the end of the day this is not just about Donald Trump or any individual. This is about our Constitution and abusing the impeachment power for political gain.

Excuse me. They tell us that we have to have this impeachment trial such as it is to bring about unity, but they don't want unity, and they know this so-called trial will tear the country in half, leaving tens of millions of Americans feeling left out of the nation's agenda as dictated by one political party that now holds the power in the White House and in our national legislature.

But there are proud Americans who never quit getting back up when they're down and they don't take dictates from another party based on partisan force feeding. This trial will tear this country a part perhaps like we have only seen once before in our history and to help the nation heal. We now learn that the House managers in their wisdom have hired a movie company and a large firm to create, manufacture, and splice for you a package designed by experts to chill and horrify you and our fellow Americans.

They want to put you through a 16-hour presentation over two days focusing on this as if it were some sort of blood spoil, and to what end? For healing? For unity? For accountability? Not for any of those for they -- surely there are much better ways to achieve each.

It is, again, for pure, raw misguided partisanship that makes them believe playing to our worst instincts somehow is good. They don't need to show you movies to show you that the riot happened here.

We will stipulate that it happened and you know all about it. This is a process fueled irresponsibly by base hatred by these House managers and those who gave them their charge, and they are willing to sacrifice our national character to advance their hatred and their fear that one day they might not be the party in power. They have a very different view of democracy and freedom.

From Justice Jackson who once wrote "but freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch at the heart of the existing order."

They have a very different view of democracy and freedom. This is nothing less than the political weaponization of the impeachment process. Pure, raw sport fueled by the misguided idea of party over country when, in fact, both will surely suffer.

I can promise you that if these proceedings go forward everyone will look bad. You will see in here many members of our Congress saying and doing things they most surely regret, but perhaps far more worse -- far worse than a moment of personal shame in a world in which history passes from our memories in a moment. Our great country, a model for all the world will be far more divided and our standing around the world will be badly broken.

Our arch enemies who pray each and every day for our downfall will watch with glee glowing in the moment as they see you at your worst and our country in internal divide. Let's be perfectly clear.

If you vote to proceed with this impeachment trial, future senators will recognize that you bought into a radical, constitutional theory that departs clearly from the language of the Constitution itself and holds -- and this is in their brief -- that any civil officer who ever dares to want to serve his or her country must know that they will subject to impeachment long after their service in office has ended subject only to the political and cultural landscape of the day that is in operation at any future time.

This is exactly the position taken by the House managers on page 65 of their brief. Unprecedented radical position. They unabashedly say so. Imagine the potential consequences for civil officers you know and who you believe served so honorably but who, in the view of a future Congress, might one day be deemed to be impeachment-worthy.