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Trump's Defense Team Delivers Opening Arguments. Aired 11a-12p ET

Aired January 25, 2020 - 11:00   ET

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

[10:59:43]

JAY SEKULOW, OUTSIDE LEGAL COUNSEL FOR PRESIDENT TRUMP: Let me say that again. This, the Mueller report, resulted in this -- that for this. Ultimately the investigation did not establish that the campaign coordinated or conspired with the Russian government in its election- related interference activities. This for that.

In his summation on Thursday night, Manager Schiff complained that the President chose not to go with the determination of his intelligence agencies regarding foreign interference and instead decided that he would listen to people that he trusted, and he would inquire about the Ukraine issue himself.

Mr. Schiff did not like the fact that the President did not apparently blindly trust some of the advice he was being given by the intelligence agencies.

First of all, let me be clear, disagreeing with the President's decision on foreign policy matters or whose advice he's going to take, is in no way an impeachable offense.

Second, Mr. Schiff and Mr. Nadler, of all people because they chair significant committees, really should know this and they should know what's happened.

Let me remind you of something, just six-tenths of a mile from this chamber sits the Foreign Intelligence Surveillance court, also known as the FISA court. It is the federal court established and authorized under the Foreign Intelligence Surveillance Act to oversee requests by federal agencies for surveillance orders against foreign spies inside of the United States, including American citizens.

Because of the sensitive nature of its business, the court is a more secret court. Its hearings are closed to the public. In this court, there are no defense counsel, no opportunity to cross-examine witnesses and no ability to test evidence. The only material the court ever sees are those materials that are submitted on trust -- on trust -- by members of the intelligence community with the presumption that they would be acting in good faith.

On December 17th, 2019 the FISA court issued a scathing order in response to the Justice Department inspector general's report on FBI's crossfire hurricane investigation into whether or not the Trump campaign was coordinating with Russia. We already know the conclusion. That report detailed the FBI's pattern of practice, systematic abuses of obtaining surveillance order requests and the process they utilized in its order.

This is the order from the court. I'm going to read it. This order responds to reports that personnel of the Federal Bureau of Investigation provided false information to the National Security Division of the Department of Justice and withheld material information from the NSD which was detrimental to the FBI's case in connection with four applications from the Foreign Intelligence Surveillance court.

When the FBI personnel misled NSD in the ways that are described in these reports, they equally misled the Foreign Intelligence Surveillance court.

This order has been followed up. There's been another order. It was declassified just a couple of days ago.

Thanks in large part, the court said, to the office of the inspector general's U.S. Department of Justice, the court has received notice of material misstatements and omissions in applications filed by the government in the above-captioned documents. DOJ assesses that with respect to the applications -- and it lists two specific docket numbers, 17375 and 17679, if not earlier.

There was not -- there was insufficient predication to establish probable cause to believe that Carter Page was acting as an agent of a foreign power.

The President had reason to be concerned about the information he was being provided. Now, we can ignore this. We can make believe this did not happen. But it did.

So as we begin introducing our arguments, I want to correct a couple of things on the record as well. That's what we are doing today. We really intend to show over the next several days that the evidence is actually really overwhelming that the President did nothing wrong.

Mr. Schiff and his colleagues repeatedly told you that the intelligence community assessment that Russia was acting alone, responsible for the election interference, implying that this somehow debunked the idea that there might be, you know, interference from other countries, including Ukraine.

[11:05:07]

SEKULOW: Mr. Nadler deployed a similar argument saying that President Trump thought, quote, "Ukraine, not Russia, interfered in our last presidential election." And this is basically what we call a strawman argument.

Let me be clear. The House managers in over a 23-hour period kept pushing this false dichotomy that it was either Russia or Ukraine but not both. They kept telling you the conclusion of the intelligence community and Mr. Mueller was Russia alone with regard to the 2016 elections.

Of course, that's not -- the report that Bob Mueller wrote focused on Russian interference, although there is some information in letters regarding Ukraine, and I'm going to point to those in a few moments.

In fact, let me talk about those letters right now. This is a letter dated May 4, 2018 to Mr. Yuriy Lutsenko, the general prosecutor for the Office of the Prosecutor General of Ukraine. It was a letter requesting that his office cooperate with the Mueller investigation involving Ukraine issues and issues involving Ukraine government or law enforcement officials. It's signed by Senator Menendez, Senator Leahy and Senator Durbin.

I'm doing this to put this in an entire perspective. House managers tried to tell you that the importance -- remember the whole discussion and my colleague Mr. Purpura talked about this between President Zelensky and President Trump and the bilateral meeting in the Oval Office at the White House.

As if an article of impeachment could be based upon a meeting not taking place in the White House but taking place someplace else, like the United Nations General Assembly, where it in fact did take place.

Now Dr. Fiona Hill was quite clear in saying that a White House meeting would supply the new Ukrainian government with the, quote, "legitimacy it needed", especially vis-a-vis the Russians and that Ukraine's view that the White House is a recognition of their legitimacy -- legitimacy of a sovereign state.

But here's what they did not play. Here's what they did not tell you. And I'm going to quote from Dr. Hill's testimony on page 145 of her transcript. These are her words, this is what she said under oath.

"It wasn't always a White House meeting per se, but definitely a presidential level meeting. You know a meeting with Zelensky and the President. I mean it could have taken place in Poland in Warsaw. It could have been, you know, a proper bilateral in some other context. But in other words a White House-level presidential meeting." That can be found on page 145.

And contrary to what Manager Schiff and some of the other managers told you is this meeting did in fact occur. It occurred at the U.N. General Assembly on September 25th, 2019.

Those were the words of Dr. Hill that you did not hear. This case is really not about presidential wrongdoing. This entire impeachment process is about the House managers' insistence that they are able to read everybody's thoughts. They can read everybody's intention, even when the principal speakers, the witnesses themselves, insist that those interpretations are wrong.

Manager Schiff, Managers Garcia and Demings relied heavily on selected clips from Ambassador Sondland's testimony. I'm not going to replay those. My colleague, Mr. Purpura played those for you. It's clear. We're not going to play the same clips seven times. He said it. You saw it. That's the evidence. [11:09:59]

SEKULOW: Miss Lofgren said that, you know, numerous witnesses testified -- and this is a quote -- that they were not provided with any reason for why the hold was lifted on September 11th, again suggesting that the President's reason for the hold, Ukrainian corruption and burden sharing, were somehow created after the fact. But again, as my colleague just showed you, burden sharing was raised in the transcript itself.

Mr. Schiff stated here that just like the implementation of the hold, President Trump provided no reason for the release. This also is wrong. In their testimony Ambassadors Volker and Sondland said that the President raised his concerns about Ukrainian corruption in the May 23, 2019 meeting with the Ukraine delegation.

Deputy Defense Secretary Laura Craft (SIC) testified that she received an email in June of 2019 listing follow-ups from a meeting between the Secretary of Defense's chief of staff and the President relating specifically to Ukrainian security assistance, including asking about what other countries are contributing -- burden sharing. That could be found in Laura Cooper's deposition pages 33 and 34. The President mentioned both corruption and burden sharing to Senator Johnson, as you already heard.

It's also important to note that as Ambassador David Hale testified that foreign aid generally was undergoing a review in 2019. From page 84 of his November 6, 2019 testimony, he said the administration did not want to take a sort of business-as-usual approach to foreign assistance. A feeling that once a country has received a certain assistance package, it's something that continues forever. They didn't talk about that in the 23-hour presentation.

Dr. Fiona Hill confirmed this review and testified on November 21, 2019. I'm going to again quote from page 75 of her testimony that, quote, "There had been a directive for wholesale -- a whole-scale review of our foreign policy, foreign policy assistance and the ties between our foreign policy objectives and that assistance. This had been going on actually for many months."

So multiple witnesses testified that the President had longstanding concerns and specific concerns about Ukraine. The House managers understandably -- understandably ignore the testimony that took place before their own committees.

In her testimony of October 14th, 2019 Dr. Hill testified at pages 118 and 119 of her transcript that she thinks the President has actually quite publicly said that he was very skeptical about corruption in Ukraine. And then she said, again in her testimony, "And in fact he's not alone because everyone -- because everyone has expressed great concerns about corruption in Ukraine."

Similarly, Ambassador Yovanovitch testified that they all had concerns about corruption in Ukraine and as noted on page 142 of her deposition transcript, when asked what she knew about the President's deep-rooted skepticism about Ukraine's business environment, she answered that President Trump delivered and anti-corruption message to former Ukrainian President Poroshenko in their first meeting in the White House on June 20th, 2017.

NSC senior director Morrison confirmed on November 19, 2019 at page 63 in his testimony transcript that, this was during the Volker/Morrison public hearing, that he was aware that the President thought Ukraine had a corruption problem -- his words again. And he continued, as did many others familiar with Ukraine.

[11:14:56]

SEKULOW: And according to her October 30th, 2019 testimony, the special adviser for Ukraine negotiations at the State Department, Catherine Croft, also heard the President raise the issue of corruption directly with then-President Poroshenko of Ukraine during a bilateral meeting at the United Nations General Assembly, this time in September of 2017.

Special Adviser Croft testified she also understood the President's concerns that, quote, "Ukraine is corrupt because she has been -- this is her words -- tasked to write a paper to help then NSA head McMasters, General McMasters, make the case to the President in connection with prior -- prior security assistance. These concerns were entirely justified."

When asked, and again a quote from Dr. Hill's October 14, 2019 hearing transcript. "Certainly -- these are her words -- eliminating corruption in Ukraine was one of -- the central goals of a foreign policy."

Now, does anybody think that one election of one president that ran on a reform platform, who finally gets a majority in their legislative body that corruption in Ukraine just evaporates? That's like looking at this and it goes back to the Mueller report -- you can't look at these issues in a vacuum. Virtually every witness agreed that confronting corruption be at the forefront of U.S. policy.

Now, I think there's some other things we have to understand about timing. This again is according to the testimony of Tim Morrison, his testimony. This is when President Zelensky was first elected. There was real -- these are his words -- concern about whether he would be a genuine reformer and whether he would genuinely try to root out corruption. It was also at this time -- this is before the election -- unclear whether President Zelensky's party would actually be able to get a workable majority.

I think we're all glad that they did. To say that's been tested or determined that corruption in Ukraine has been removed, the anti- corruption court of Ukraine did not commence its work until September 5th of 2019 -- 121 days ago, four months ago.

We're acting as if there was a magic wand, that there were new elections and everything was now fine. I will not -- because we're going to hear more about it -- get into some of the meetings the Vice President had. You will hear that in the days ahead. Manager Crow said this, "What's most interesting to me about this is that President Trump was only interested in Ukraine aid -- his words -- nobody else. The U.S. provides aid to dozens of countries around the world, lots of partners and allies. He didn't ask about any of them, just Ukraine."

I appreciate your service to our country. I really do. I didn't serve in the military. And I appreciate that. But let's get our facts straight. That is what Manager Crow said.

Here's what actually happened. President Trump has placed holds on aid a number of times. We just take basic due diligence to figure this out.

In September 2019 the administration announced that it was withholding over $100 million in aid to Afghanistan over concerns about government corruption.

In August 2019 President Trump announced that the administration in Seoul were in talks to substantially increase South Korea's burden sharing of the expenses of U.S. military aid support for South Korea.

[11:19:46]

SEKULOW: In June President Trump cut or paused over $550 million in foreign aid to El Salvador, Honduras and Guatemala because those countries were not fairly sharing the burdens of preventing mass migrations to the United States.

In June the administration temporarily paused $105 million in aid to Lebanon. The administration lifted that hold in December with one official explaining that the administration continually reviews and thoroughly evaluates the effectiveness of all United States foreign assistance to ensure that funds go towards activities that further U.S. foreign policy and also further our national security interests, like any administration would.

In September 2018 the administration canceled the $300 million -- $300 million in military aid to Pakistan because it was not meeting its counter terrorism obligations. You didn't hear about any of that from my Democratic colleagues, the House managers. None of that was discussed.

Under Secretary Hale, again his transcript, said that, quote, "Aid has been withheld from several countries across the globe for various reasons."

Dr. Hill similarly explained that there was a freeze put on all kinds of aid, also freeze was put on assistance because it was in the process at the time of an awful lot of reviews going on, on foreign assistance. That's the Hill deposition transcript.

She added -- this was one of the star witnesses for the managers -- she added, this again not played, that in her experience stops and starts are sometimes common with foreign assistance. And that the Office of Management and Budget holds up dollars all the time including in the past for dollars going to Ukraine -- in the past. Similarly, Ambassador Volker affirmed that aid gets held up from time to time for a whole assortment of reasons.

Manager Crow told you that the President's Ukraine policy was not strong against Russia noting that we help our partner fight Russia over there so we don't have to fight Russia here, our friends on the front lines in trenches and with sneakers. This was following the Russians invasion of Ukraine in 2014, the United States has stood by Ukraine. Those are your words.

While it's true that the United States has stood by Ukraine since the invasion of 2014, only one president since then took a very concrete step. Some of you supported it. And that step included actually providing Ukraine with lethal weapons, including javelin missiles. That's what President Trump did. Some of you in this very room, some of you managers, actually supported that.

Here's what Ambassador Taylor said that you didn't hear in the 23 hours. You didn't hear this. Javelin missiles are serious weapons. They will kill Russian tanks.

Ambassador Yovanovitch agreed stating that Ukraine policy under President Trump -- President Trump -- actually got stronger, stronger than it was under President Obama.

There were talks about sanctions. President Trump has also imposed heavy sanctions on Russia where President Zelensky thanked him. The United States has imposed heavy sanctions on Russia. President Zelensky thanked him.

Manager Jeffries said that the idea that Trump cares about corruption is laughable. This is what Dr. Hill said, they didn't play this. "Eliminating corruption in Ukraine was one of, if not the central goal, of U.S. foreign policy in Ukraine."

Let me say that again. Dr. Hill testified that eliminating corruption in Ukraine was one of, if not the central goal, of U.S. Foreign policy in Ukraine. You're taking notes. You can find that at the Hill deposition transcript 34:7-13.

Dr. Hill also said that she thinks the President has actually quite publicly said he was very skeptical about corruption in Ukraine. In fact, he's not alone, she said this well, everyone has expressed again great concerns about corruption.

Ambassador Yovanovitch, they didn't play this, she also said we all had concerns.

[11:24:48]

SEKULOW: National Security Director Morrison confirmed that, quote, he was aware that the President thought Ukraine had a corruption problem, as did many other people familiar with it.

I'm not going to continue to go over and over and over again the evidence that they did not put before you, because we would be here for a lot longer than 24 hours.

But to say the President of the United States did not -- was not concerned about burden sharing, that he was not concerned about corruption in Ukraine -- the facts from their hearing -- the facts from their hearing, established exactly the opposite. The President wasn't concerned about burden sharing? Read all of the records.

And then there was Mr. Schiff saying yesterday, maybe we can learn a lot more from our Ukrainian ally. Let me read you what our Ukrainian ally said. President Zelensky when asked about these allegations of quid pro quo, he said I think you read everything. I think you read the text. He said, we had a good phone call.

These are his words. It was normal. We spoke about many things. I think and you read it that nobody pushed me.

They think you can read minds. I think you look at the words.

I will yield the balance of my time to my colleague, the deputy White House counsel Pat Philbin. He's going to address the two issues. So we're going to try to do this in a very systematic way over the days ahead.

One involving issues related to -- because this came up near the end of there -- so I want to do this in a sequence. Obstruction as relates to some of the subpoenas that were issued. He's also going to touch on some of the due process issues since it was at the end of theirs and freshen everybody's minds.

Mr. Chief Justice.

PATRICK PHILBIN, DEPUTY COUNSEL TO THE PRESIDENT: Mr. Chief Justice, Senators, Majority Leader McConnell and Democratic Leader Schumer -- good morning.

As Mr. Sekulow said I'm going to touch on a couple of issues related to obstruction and due process. Just to hit on some points before we go into more detail in the rest of our presentation.

I would like to start with one of the points that Manager Jeffries focused a lot on towards the end of the presentation yesterday, related to the obstruction charge in the second article of impeachment.

Because he tried to portray a picture of what he called blanket defiance. That there was a response from the Trump administration that was simply, we won't cooperate with anything, we won't give you any documents, we won't do anything. And it was blanket defiance really without explanation, that that was all there was. It's just an assertion that we wouldn't cooperate.

He said, and I pull this from the transcript, that President Trump's objections are not generally rooted in the law and are not legal arguments. That's simply not true. That's simply not true.

In every instance when there was resistance to a subpoena, resistance to a subpoena for a witness or for documents, there was a legal explanation of the justification for it.

For example, they focused a lot on an October 8th letter from the counsel to the President Pat Cipollone but they didn't show you an October 18th letter, which is up on the screen now, that went through in detail why subpoenas that had been issued by Manager Schiff's committees were invalid. Because the House has not authorized your committees to conduct any such inquiry or to subpoena information in furtherance of it.

That was because the House had not taken a vote to authorize the committee, to exercise the power of impeachment, to issue any compulsory process. And I'm going to get into that issue in just a moment.

Not only was there a legal explanation, a specific reason for every resistance, not just blanket defiance. Every step that the administration took was supported by an opinion from the Department of Justice from the Office of Legal Counsel. And those are explained in our brief, and the major opinion from the Office of Legal Counsel is actually attached in our trial memorandum as an appendix.

[11:30:04]

PHILBIN: Now, Mr. Jeffries and other managers also suggested that the Trump administration took the approach of no negotiation, blanket refusal and no attempt to accommodate. That's also not true.

In the October 8th letter that Mr. Cipollone sent to Speaker Pelosi, it said explicitly, quote, "If the committee's wish to return to the regular order of oversight requests, we stand ready to engage in that process as we have in the past in a manner consistent with well- established, bipartisan Constitutional protections and a respect for the separation of powers enshrined in the Constitution," end quote.

It was Manager Schiff and his committees that did not want to engage in any accommodation process. We have said that we were willing to explore that.

The House managers have also asserted a number of times -- this came up on that first long night when we were here until 2:00 as well -- that the Trump administration never asserted executive privilege, never asserted executive privilege. And I explained at the time that's technically true but misleading.

Misleading because the rationale on which the subpoenas were resisted never depended on an assertion of executive privilege. Each of the rationales that we have offered -- and I will go into one of them today -- that the House subpoenas were not authorized -- did not depend on making that formal assertion of executive privilege. It's a different legal rationale.

The subpoenas weren't not authorized because there was no vote, or the subpoenas were to senior advisers to the President, who were immune from congressional compulsion or the subpoenas were forcing an executive branch official to testify without the presence of agency counsel, which is a separate legal infirmity again supported by an opinion from the Office of Legal Counsel at the Department of Justice.

But let me turn to the specific issue of the invalidity of the subpoenas because they weren't supported by a vote of the House authorizing Manager Schiff's committee to exercise the power of impeachment, to issue compulsory process.

Manager Jeffries said that there were no Supreme Court precedents suggesting such a requirement and that every investigation into a presidential impeachment in history has begun without a vote from the House. And those statements simply aren't accurate.

There is Supreme Court precedent explaining very clearly the principle that a committee of either House of Congress gets its authority only by a resolution from the parent body. The United States versus Romley (ph) and Watkins versus the United States make this very clear. And it's common sense.

The Constitution assigns the sole power of impeachment to the House of Representatives, to the House. Not to any member, not to a subcommittee. And that authority can be delegated to a committee to use only by a vote of the House.

It would be the same here in the Senate. The Senate has the sole power to try impeachments. But if there were no rules that had been adopted by the Senate, would you think that the Majority Leader himself could simply decide that he would have a committee receive evidence, handle that, submit a recommendation to the Senate and that would be the way the trial would occur without a vote from the senate to give authority to that committee?

I don't think so. It doesn't make sense. That's not the way the Constitution assigns that authority.

And it's the same in the House. Here there was no vote to authorize a committee to exercise the power of impeachment, and this law has been boiled down by the D.C. circuit in Exxon Corp. versus FTC to explain it this way. To issue a valid subpoena, a committee or subcommittee must conform strictly to the resolution establishing its investigatory powers. There must be a resolution voted on by the parent body to give the committee that power.

And the problem here is there is no standing rule, there was no standing authority giving Manager Schiff's committee the authority to use the power of impeachment to issue compulsory process. Rule 10 of the House discusses legislative authorities. It doesn't mention impeachment.

[11:34:58]

PHILBIN: And that is why in every presidential impeachment in history, the House has initiated the inquiry by voting to give a committee the authority to pursue that inquiry. So contrary to what Manager Jeffries suggested, there has always been in every presidential impeachment inquiry a vote from the full House to authorize a committee. And that is the only way an inquiry begins.

There were three different votes for the impeachment of President Andrew Johnson -- in January 1867, in March 1867 and in February 1868.

For President Nixon, Chairman Rodino of the House Judiciary Committee explained there was a move to have him issue subpoenas after the Saturday night massacre, and they determined that they did not have that authority in the House Judiciary Committee without a vote from the House. And he determined as he explained that a resolution has always been passed by the House. It is a necessary step if we are to meet our obligations.

There's been reference to investigatory activities starting in the House Judiciary Committee in the Nixon impeachment prior to a vote in the House but all that the committee was doing was assembling publicly available information and information that had been gathered by other congressional committees.

There was never an attempt to issue compulsory process until there had been a vote by the House to give the House Judiciary Committee that authority.

Similarly in the Clinton impeachment, there were two votes from the full House to give the House Judiciary Committee authority to proceed. First the vote on Resolution 525 just to allow the committee to examine the independent counsel report and determine and make recommendations on how to proceed. Then a separate resolution, House Resolution 581 that gave the House Judiciary Committee subpoena authority.

And at the time in a House report, the House Judiciary Committee explained, and I'm quoting, "Because the issue of impeachment is of such overwhelming importance, the committee decided that it must receive authorization from the full House before proceeding on any further course of action. Because impeachment is delegated solely to the House of Representatives by the Constitution, the full House of Representatives should be involved in critical decision-making regarding various stages of impeachment."

Here the House Democrats skipped over that step completely. What they had instead was simply a press conference from Speaker Pelosi announcing that she was directing committees to proceed with an impeachment inquiry against the President of the United States. Speaker Pelosi did not have the authority to delegate the power of the House to those committees on her own.

So why does it matter? It matters because the Constitution places that authority in the House and ensures that there is a democratic check on the exercise of that authority, that there will have to be a vote by the full House before there can be a proceeding to start inquiring into impeaching the President of the United States.

One of the things the framers were most concerned about an impeachment was the potential for a partisan impeachment. A partisan impeachment that was being pushed merely by a faction.

And a way to ensure a check on that is to require democratic accountability from the full House, to have a vote from the entire House, before an inquiry could proceed. That didn't happen here. It was only after five weeks of hearings that the House decided to have a vote. And what that meant at the outset was that all of the subpoenas that were issued under the law, the Supreme Court cases I discussed, all of those subpoenas were invalid.

And that is what the Trump administration pointed out specifically to the House. And that was the reason for not responding to them. Because under long-settled precedent, there had to be a vote from the House to give authority, and the administration would not respond to subpoenas that were invalid.

[11:39:40]

PHILBIN: Now, the next point I would like to touch on briefly has to do with due process. Because we've heard from the House managers that they offered the President due process at the House Judiciary Committee. And Manager Nadler described it as that he sent the President a letter, the President's counsel a letter, offering to allow the President to participate and the President's counsel just refused as if that was the only exchange and there was just a blanket refusal to participate.

But let me explain what actually happened. And I should note, before I get into those details, there was a suggestion also that due process is not required in the House proceeding, that it's simply a privilege.

But that wasn't the position that Manager Nadler has taken in the past. In 2016 he said, quote, "The power of impeachment is a solemn responsibility assigned to the House by the Constitution and to this committee by our peers. That responsibility demands a rigorous level of due process."

And in the Clinton impeachment in 1998 he explained, "What does due process mean? It means, among other things, the right to confront the witnesses against you, to call your own witnesses, and to have the assistance of counsel."

I think we all know that all of those rights were denied to the President in the first two rounds of hearings. The first round of secret hearings in the basement bunker where Manager Schiff had three committees holding hearings. And then around public hearings to take the testimony that had been screened in the basement bunker and have it in a public televised setting which was totally unprecedented in any presidential impeachment inquiry in both the Clinton and the Nixon inquiries.

For every public hearing, the President was allowed to be present by counsel and cross-examine witnesses. But the House managers say that's all right because when we got to the third round of hearings, after people had testified twice, then we were going to allow the President to have some due process.

But the way that played out was this. First, they scheduled the hearing for December 4th that was going to hear solely from law professors. And by the time they wanted the President to commit whether he would participate, it was unclear they could not specify how many law professors or who the law professors were going to be. And the President's counsel wrote back and declining to participate in that.

But at the same time Manager Nadler had asked what other rights under the House Resolution 660, the rules governing the House inquiry, the President would like to exercise? And the President's counsel wrote back asking specific questions in order to be able to make an informed decision, and asked whether you intend to allow fact witnesses to be called, including the witnesses who had been requested by HIPC (ph) ranking member Nunes?

Whether you intend to allow members of the Judiciary Committee and the President's counsel the right to cross-examine fact witnesses? And whether your Republican colleagues on the Judiciary Committee will be allowed to call witnesses of their choosing?

Manager Nadler didn't respond to that letter. There wasn't information provided. And we had discussions with the staff on the Judiciary Committee to try to find out what were the plans, what were the hearings going to be like?

And the way the week played out, on December 4th there was the hearing with the law professors, the first hearing before the Judiciary Committee. And on December 5th, the morning of December 5th, Speaker Pelosi announced the conclusion of the entire Judiciary Committee process because she announced that she was directing Chairman Nadler to draft articles of impeachment. So the conclusion of the whole process was already set.

Then after the close of business on the 5th, we learned from the staff that the committee had no plans other than a hearing on December 9th to hear from staffers who had prepared HIPC committee reports. They had no plans to have other hearings. No plans to hear from fact witnesses. No plans to do any factual investigation.

So the President was given a choice of participating in a process that was going to already have the outcome determined, the speaker had already said articles of impeachment are going to be drafted, and where there were no plans to hear from any fact witnesses. That's not due process.

[11:44:53]

PHILBIN: And that's why the President declined to participate in that process. Because the Judiciary Committee had already decided they were going to accept an ex parte record developed in Manager Schiff's process, and there was no point in participating in that.

So the idea that there was due process offered to the President is simply not accurate. The entire proceedings in the House from the time of the September 4th press conference until the Judiciary Committee began marking up articles of impeachment on December 11th lasted 78 days. It's the fastest investigatory process for a presidential impeachment in history.

And for 71 days of that process, for 71 days of the hearings and taking of depositions and hearing testimony, the President was completely locked out. He couldn't be represented by counsel, he couldn't cross-examine witnesses, he couldn't present evidence, he couldn't present witnesses for 71 of the 78 days. That's not due process.

And it goes to a point Mr. Cipollone raised earlier. Why would you have a process like that? What does that tell you about the process?

As we pointed out a couple of times, cross-examination in our legal system is regarded as the greatest legal engine ever invented for the discovery of truth. It's essential.

The Supreme Court said in Goldberg versus Kelly -- for any determination that's important, that requires determining facts, cross-examination has been one of the keys for due process.

Why did they design a mechanism here where the President was locked out and denied the ability to cross-examine witnesses? It's because they weren't really interested in getting at the facts and the truth.

They had a timetable to meet. They wanted to have impeachment done by Christmas. And that's what they were striving to do.

Now, as a slight shift in gears, I want to touch on one last point before I yield to one of my colleagues. And that relates to the whistle-blower. The whistle-blower who we haven't heard that much about, who started all of this.

The whistle-blower we know from a letter that the inspector general of the intelligence community sent that he thought that the whistle- blower had political bias. We don't know exactly what the political bias was because the inspector general testified in the House committees in an executive session, and that transcript is still secret.

It wasn't transmitted up to the House Judiciary Committee. We haven't seen it. We don't know what's in it. We don't know what he was asked and what he revealed about the whistle-blower.

Now, you would think that before going forward with an impeachment proceeding against the President of the United States that you would want to find out something about the complainant that had started all of it, because motivations, bias, reasons for wanting to bring this complaint could be relevant. But there wasn't any inquiry into that.

Recent reports, public reports suggest that potentially the whistle- blower was an intelligence community staffer who worked with then-vice president Biden on Ukraine matters, which, if true, would suggest an even greater reason for wanting to know about potential bias or motive for the whistle-blower.

And at first, when things started, it seemed like everyone agreed that we should hear from the whistle-blower, including Manager Schiff. And I think we have what he said.

(BEGIN VIDEO CLIP) REP. ADAM SCHIFF (D), CALIFORNIA: Yes, we would love to talk directly with to the whistle-blower.

We'll get the unfiltered testimony of that whistle-blower.

We don't need the whistle-blower.

(END VIDEO CLIP)

[11:49:48]

PHILBIN: What changed?

At first Manager Schiff agreed we should hear the unfiltered testimony from the whistle-blower. But then he changed his mind. And he suggested that it was because now we had the transcript.

But the second clip there was from September 29th, which was four days after the transcript had been released.

But there was something else that came into play. And that was something that Manager Schiff had said earlier when he was asked about whether he had spoken to the whistle-blower.

(BEGIN VIDEO CLIP)

SCHIFF: We have not spoken directly with the whistle-blower. We would like to.

(END VIDEO CLIP)

PHILBIN: And it turned out that that statement was not truthful. Around October 2nd or 3rd, it was exposed that Manager Schiff's staff at least had spoken with the whistle-blower before the whistle-blower filed the complaint and potentially had given some guidance of some sort to the whistle-blower.

And after that point it became critical to shut down any inquiry into the whistle-blower. And during the House hearings, of course, Manager Schiff was in charge, he was chairing the hearings.

And that creates a real problem from a due process perspective, from a search for truth perspective because he was an interested fact witness at that point. He had a reason since he had been caught out saying something that wasn't truthful about that contact. He had a reason to not want that inquiry and it was he who ensured there wasn't any inquiry into that.

Now, this is relevant here I think because as you heard from my colleagues a lot of what we've heard over the past 23 hours over the past three days has been from Chairman Schiff.

And he has been telling you things like what's in President Trump's head, what's in President Zelensky's head. It is all his interpretation of the facts and the evidence, trying to pull inferences out of things. And there's another statement that Chairman Schiff made that I think we have on video.

(BEGIN VIDEO CLIP)

CHUCK TODD, NBC NEWS HOST: So you admit it's -- all you have right now is a circumstantial case?

SCHIFF: Actually no -- Chuck. I can tell you that the case is more than that. And I can't go into the particulars but there's more than circumstantial evidence now, so again I think Director Clapper --

TODD: You have seen direct evidence of collusion?

SCHIFF: I don't want to go into specifics but I will say that there is evidence that is not circumstantial and is very much worthy of investigation.

(END VIDEO CLIP)

PHILBIN: So that was in March of 2017 when Chairman Schiff, as ranking member of his HIPC, was telling the public, the American public, that he had more than circumstantial evidence through his position on HIPC that President Trump's campaign had colluded with Russia.

Now of course, the Mueller report as Mr. Sekulow pointed out, after $32 million and over 500 search warrants, or roughly 500 search warrants, determined that there was no collusion. That that wasn't true.

And we wanted to point these things out simply because for this reason. Chairman Schiff has made so much of the House's case about the credibility of interpretations that the House managers want to place are not hard evidence but on inferences. They want to tell you what President Trump thought. They want to tell you don't believe what Zelensky said. We can tell you what Zelensky actually thought. Don't believe what the other Ukrainians actually said about not being pressured. We can tell you what they actually thought.

That it is very relevant to know whether the assessments of evidence he presented in the past are accurate. And we would submit that they have not been and that that is relevant for your consideration.

With that, I will yield to my colleague, Mr. Cipollone.

PAT CIPOLLONE, WHITE HOUSE COUNSEL: Mr. Chief Justice, members of the Senate -- I have good news just a few more minutes from us today.

[11:54:57]

CIPOLLONE: But I want to point out a couple of points.

Number one, just to follow-up on what Mr. Philbin just told you. Do you know who else didn't show up in the Judiciary Committee to answer questions about his report in the way Ken Starr did in the Clinton impeachment? Ken Starr was subjected to cross examination by the President's counsel.

Do you know who didn't show up in the Judiciary Committee? Chairman Schiff. He did not show up. He did not give Chairman Nadler the respect of appearing before his committee and answering questions from his committee. He did send his staff but why didn't he show up? Another good question you should think about.

Now, they've come here today and they basically said let's cancel an election over a meeting with Ukraine. As my colleagues have shown, they failed to give you key facts about the meeting and lots of other evidence that they produced themselves.

But let's talk about the meeting. They said it's all about invitation to a meeting.

If you look at the first transcript, at the first transcript, the President said to President Zelensky, "When you're settled in and ready, I'd like to invite you to the White House. We'll have a lot of things to talk about, but we're with you all the way."

And President Zelensky said, "Well, thank you for the invitation. We accept the invitation and look forward to the visit. Thank you again."

Then President Zelensky got a letter on May 29th inviting him again to come to the White House. And then going back to the transcript of the July 25th call, again, a part of the call that that they didn't talk to you about, President Trump said "Whenever you would like to come to the White House, feel free to call. Give us a date and we'll work that out. I look forward to seeing you."

President Zelensky replied, "Thank you very much. I would be very happy to come and would be happy to meet with you personally and get to know you better. I'm looking forward to our meeting. And I also would like to invite you to visit Ukraine and come to the city of Kiev, which is a beautiful city. We have a beautiful country which would welcome you."

Then he said "On the other hand, I believe on September 1 we will be in Poland and we can meet in Poland hopefully." Now, they didn't read you that part of the transcript and they didn't tell you what happened.

A meeting in Poland was scheduled. President Trump was scheduled to go to Poland. He was scheduled to meet with President Zelensky.

What happened? President Trump couldn't go to Poland. Why? Because there was a hurricane in the United States. And he thought it would be better for him to stay here to help deal with the hurricane. So the vice president went.

Why didn't they tell you that? Why didn't they tell you that President Zelensky suggested hey, how about we meet in Poland? Why didn't you tell them that that meeting was scheduled and had to be cancelled for a hurricane? Why? So that was our first question that we asked you.

You heard a lot of facts that they didn't tell you, facts that are critical, facts that they know completely collapse their case on the facts.

Now, you heard a lot from them. You're not going to hear facts from the President's lawyers. They're not going to talk to you about the facts.

That's all we've done today. And ask yourself. Ask yourself, given the facts you heard today that they didn't tell you, who doesn't want to talk about the facts? Who doesn't want to talk about the facts.

[12:00:02]

CIPOLLONE: The American people paid a lot of money for those facts. They paid a lot of money for this investigation.