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Senators Ask Questions to House Managers; Trump Lawyers; GOP's Lee: Isn't it the President's Place, Not That of Civil Servants, To Conduct Foreign Policy. Aired 1:30-2p ET

Aired January 29, 2020 - 13:30   ET

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

[13:30:03]

PAT PHILBIN, DEPUTY COUNSEL TO PRESIDENT DONALD TRUMP: As we explained on June 24th there is an email in the record showing it's an email from one person at the Department of Defense to another with a subject line of POTUS follow up -- President of the United States follow up -- asking specifically about burden sharing.

It says, "What do other NATA members spend to support Ukraine"? That was what they were following up on for the President and in the transcript itself -- excuse me -- in the transcript of the July 25th call itself the President asked, he said we spend a lot of effort and a lot of time for Ukraine, much more than the European countries are doing and they should be helping you more than we are.

Germany does almost nothing for you. All they do is talk and I think it's something you should really ask you about and he goes on to say that he talks to Angela Merkel about it and that they're not really doing as much as the United States is doing. He's raising burden sharing and President Zelensky agreed with him.

Now, Manager Schiff also suggested that there is evidence of some connection between the military assistance and investigations into 2016 election interference because of a statement that acting Chief of Staff Mulvaney made at a press conference but that has been -- it's been clear in the record since that press conference that what he was saying was garbled and or misunderstood and he immediately clarified and said on that day, "The President never told me to withhold any money until the Ukrainian's did anything related to the server".

And similarly he issued a statement just the other day making clear again that he said this is from his counsel so it's phrased in the third person, nor did Mr. Mulvaney ever have a conversation with the President or anyone else indicating the Ukrainian military aid was withheld in exchange for Ukrainian investigation of Burisma, the Biden's, or the 2016 election. That is Mr. Mulvaney's statement.

Lastly onto the point of whether this chamber should hear from Ambassador Bolton and I think it's important to consider what that means because it's not just a question of well should we just hear one witness.

That's not what the real question is going to be. For this institution, the real question is what is the precedent that is going to be set for what is an acceptable way for the House of Representatives to bring an impeachment of a President of the United States to this chamber and can't be done in a hurried, half baked partisan fashion without -- they didn't even subpoena John Bolton below.

They didn't even try to get his testimony and to insist now that this body will become the investigative body that this body will have to do all the discovery and that this institution will be effectively paralyzed for months on end because it has to sit as a court of impeachment while now discovery is done because it would be Ambassador Bolton and if there are going to be witnesses then the President would have to in order -- they said fair trial, fair adjudication then the President would have to have his opportunity to call his witnesses.

And there'd be depositions and this would drag on for months and then that's the new precedent then that's the way all impeachments operate in the future. The House doesn't have to do the work. They do it quick, they throw it over the transom and this institution gets derailed and has to deal with it.

And that should not be the way -- that should not be the precedent that is set here for the way this body will have to handle all impeachments in the future because if it becomes that easy for the House to do it they'll be doing it a lot. Thank you.

JOHN ROBERTS, CHIEF JUSTICE OF THE UNITED STATES: Thank you counsel. The Senator from Massachusetts send a question to the desk.

Question from Senator Markey to the House Managers. On Monday, President Trump tweeted, "The Democrat controlled House never even asked John Bolton to testify". So that the record is accurate, did House impeachment investigators ask Mr. Bolton to testify?

[13:35:00]

REP. ADAM SCHIFF (D-CA): Senators, the answer is yes, of course we asked John Bolton to testify in the House and he refused. We asked his Deputy, Dr. Kupperman to testify and he refused. Fortunately we asked their Deputy, Dr. Fiona Hill to testify and she did. We asked her deputy, the Colonel Vindman to testify and he did.

But we did seek the testimony of John Bolton as well as Dr. Kupperman and they refused. When we subpoenaed Dr. Kupperman, he sued us, took us to court. When we raised a subpoena with John Bolton's counsel, the same counsel for Dr. Kupperman; the answer was, Senator, you serve us with a subpoena and we will sue you too,

We knew based on the McGahn litigation it would take months if not years to force John Bolton to come and testify. And I should point out because I think this is an essential point to underscore as the president's lawyers say, they didn't try hard enough to get John Bolton or they should have subpoenaed John Bolton.

That's what they're telling you but let me show you what they're telling the court in the McGahn litigation. If we could pull up slide number 39. This is the president's lawyers in court in the McGahn litigation.

In the Court of Appeals right now, quote the committee, meaning our committee, lacks Article 3 standing to sue to enforce a congressional subpoena demanding testimony from an individual on matters related to duties as an executive branch official.

I mean it takes your breath away the duplicity of that argument. They're before you saying they should have tried harder to get these witnesses, they should have subpoenaed, they should have litigated for years, and down the street in the Federal courthouse they're arguing, Judge, you need to throw them out.

They have no standing to sue to force a witness to testify. Are we really prepared to accept that. Now Counsel says think about the precedent that we would be setting if you allow a house to impeach a president and you permit them to call witnesses.

Well I would submit, think about the precedent you will be setting if you don't allow witnesses in a trial. That to me is the much more dangerous precedent here. But I'll tell you there's something even more dangerous and this was something that we anticipated from the very beginning, which is we understood when we got to this point they could no long contest the facts that the president withheld military aid from an ally at war to coerce that ally to doing the president's political dirty work.

So now they have fallen back on you shouldn't hear any further evidence, any further witnesses on this subject. What's more, we're going to use the -- the end all argument, so what. A president is free (ph) to abuse their power.

We're going to rely on a constitutional theory, a fringe theory that even that advocate of which says is outside of the consensus of Constitutional law to say that a president can abuse his power with impunity.

Now imagine where that leads. The president can abuse his power with impunity. Now that argument made by Professor Dershowitz is at odds with the attorney general's own expressed opinion on the subject, with Ken Starr's expressed opinion on the subject, with not only other counsel for the president; Jonathan Turley who testified in the House says that theory is constitutional effectively nonsense.

But even 60 year old Alan Dershowitz doesn't agree with 81 year old Alan Dershowitz and for a reason. Because where that conclusion leads us is that a president can abuse his power in any kind of way and there's nothing you can do about it. Now, are we really ready to accept the position that this president on the next can withhold hundreds of millions of dollars of military aid to an ally at war unless they get help in their re-election.

Would we say that you could, as president, withhold disaster relief from a governor unless that governor got his attorney general to investigate the president's political rival. That to me is the most dangerous argument of all. It's a danger to have a president who would engage in this conduct. It's a danger to have a trial with no witnesses and set that precedent. But the biggest danger of all, I think, would be to accept the idea that a president could abuse his office in this way and the Congress is powerless to do anything about it. It is certainly not what the founders intended.

[13:40:04]

SEN. MARSHA BLACKBURN (R-TN): Mr. Chief Justice.

ROBERTS: The Senator from Tennessee.

BLACKBURN: Thank you, Mr. Chief Justice. I send a question to the desk on my behalf and also joined by Senators Loeffler, Lee, Cramer, and McSally.

ROBERTS: The Senators ask of counsel for the president; is the standard for impeachment in the House a lower threshold to meet than the standard for conviction in the Senate and have the House Managers met their evidentiary burden to support a vote of removal.

PHILBIN: Mr. Chief Justice, Senators; the standard in the House -- of course the House is not making a final determination in the structure of the Constitution. An impeachment is simple an accusation. And as in most systems where there is simply an accusation being made, the House does not have to adhere to the same standard that is used in the Senate.

In most instances House members have suggested in debates on articles of whether or not to approve Articles of Impeachment that they should be -- have clear and convincing evidence in the view of the members voting on it that there was some impeachable offense.

And that is all. Some not even that standard. And so it is simply enough evidence that their -- an accusation can be made. It is definitely a lower standard than the standard that has to be met here on a trial for an ultimate verdict.

The Constitution speaks in terms of a conviction in the Senate. And as both professor Dershowitz and Judge Starr pointed out in their comments, everywhere in the Constitution that there's any mention of impeachment, it is spoken of in terms of the criminal law; the offenses that define the jurisdiction for the Senate sitting as a court of impeachment are treason, bribery, and high crimes and misdemeanors.

The Constitution speaks of a conviction upon being convicted in the Senate. It speaks of all crimes being tried by a jury except in cases of impeachment. Again, suggesting notions of the criminal law.

And as we pointed out in our trial memorandum, all of these textual references make it clear that the standards of the criminal law should apply in the trial, certainly to the extent of the burden and standard of proof to be carried by the House Managers, which means proof beyond a reasonable doubt. And it's very clear that there is not any requirement for proof beyond

a reasonable doubt simply for the House to vote upon Articles of Impeachment. There's a very much higher standard at stake here.

As we pointed out in our trial memorandum the mere acquisition made the House comes here with no presumption of regularity at all in its favor. The Senates sits as tryer (ph) of both fact and law reviewing both factual and legal issues DaNovo (ph) and the trial manager, the House mangers are held to a standard of proving proof beyond a reasonable doubt of every element of what would be a cognizable (ph) impeachable offense.

Here they have failed in their burden of proof. They have also failed on the law. They have not stated in the Articles of Impeachment anything that on it's face amounts to an impeachable offense. And on the facts I think we have demonstrated very clearly that they have not presented facts that would amount to an impeachable offense.

Even under their own theories, they present only part of the facts and left out the key facts. And Mr. Purpura I think went through very effectively showing that there are some facts that don't change. The transcript of the July 25th call shows the President doing nothing wrong.

President Zelensky said he never felt any pressure. His other advisors have said the Ukrainians never felt any pressure. They didn't think there was any quid pro quo.

They didn't even know that the military assistance had been held up until the Politico article at the end of August.

[13:45:03]

The only two people with statements on record who spoke to the President who are Sondland and Senator Ron Johnson, report that the President said to them there was no quid pro quo.

And the aid flowed without ever, anything ever being done related to investigations. That is what's in the records. That is what the House Managers have to rely on to make their case. And they have failed to prove their case beyond a reasonable doubt. Failed even to prove it by clearing convincing evidence. Failed to prove it at all, in my opinion.

Thank you.

ROBERTS: Thank you, Counsel. Ms. Senator from California is recognized.

SEN. DIANNE FEINSTEIN (D-CA): Thank you. Mr. Chief Justice, I send a question to the House Managers.

ROBERTS: Senator Feinstein asks the House Managers, the President Counsel stated that quote "there is simply no evidence anywhere that President Trump ever linked security assistance to any investigations" is that true? REP. JASON CROW (D-CO): Thank you Mr. Chief Justice and thank you Senator for that question. The President's counsel is not correct. There is in fact overwhelming evidence that the President withheld the Military Aid directly to get a personal political benefit to help his individual political campaign.

There's a few points that I'd like to submit for your consideration. First, look no further than the words of the President's Acting Chief of Staff, Mick Mulvaney who on October 17, 2019 during a National Press Conference mentioned quote or he was asked about the direct connection between aid (ph) and he said quote "did he".

Meaning President Trump referring to he, quote "also mentioned to me in passing the corruption related to the DNC server absolutely, no question about it but that's it and that's why we held up the money". He was repeating the President's own explanation relayed directly to him.

Second, Gordon Sondland testified he spoke by phone with President Trump on September 7th. The President denied there was a quote "quid pro quo" but then outlined the very quid pro quo that he wanted from Ukraine. Then he told President Sondland to quote "go that, President Zelensky should quote "go to the microphone and announce the investigations, he should want to do it".

Third, the President's own advisories including the Vice President and Secretary Pompeo were also aware of the direct connection. In Warsaw on September 1st, Ambassador Sondland told Vice President Pence that he was concerned the delay in security assistance had become quote "tied to the issue of investigations. The Vice President simply nodded passively acknowledging the conditionality of the aid.

Fourth, we heard from Ambassador Taylor, who in direct emails and text said it was crazy to tie the security assistance to the investigations.

Five, we also know there's not other reason. The entire apparatus and structure of the Defense Department, the State Department that should have been dealing with the other legitimate reasons.

You know the policy debate that the President's counsel wants you to believe that this was about, they were all kept in the dark. And this supposed interagency process that they made up several months after the fact had ended months before during the last interagency meetings.

And I'll make one final point. Again, if you have any lingering questions about direct evidence. Any thoughts about anything we just talked about. Anything I just relayed or that we've talked about the last week, there is a way to shed additional light on it. You can subpoena Ambassador Bolton and ask him that question, directly.

ROBERTS: Thank you Mr. Manager.

SEN. MIKE LEE (R-UT): Mr. Chief Justice?

ROBERTS: Senator from Utah. LEE: I send a question to the desk.

ROBERTS: Senator Lee asks of Counsel for the President, the House Managers have argued aggressively that the President's actions contravened US Foreign Policy. Isn't it the President's place, certainly more than the place of career civil servants to conduct Foreign Policy?

[13:50:15]

PHILBIN: Thank you, Mr. Chief Justice, Senators and thank you for that question. It is definitely the President's place to set US Foreign Policy and the Constitution makes this clear. Article Two Section One vest the entirety of the Executive Authority in a President of the United States.

And it's critical important in our Constitutional structure that that authority is vested solely in the President. Because the President is elected by the people every four years. That's what gives the President Democratic legitimacy to have the powers that he is given under the Constitution.

Our system is somewhat unique in the very broad powers that are assigned to the Executive. But it works and it makes sense in a Democratic system precisely because he is directly accountable to the people for the policies that he sets. Those who are staffers in the Executive Branch bureaucracy are not elected by the people. They have no accountability and they have no legitimacy or authority that comes from an election by the people.

And so it's critically important to recognize the President sets foreign policy, of course within some constraints there's roles for Congress in foreign affairs to some extent. Statutes can be passed. Funding provisions can be passed that relate to it but the constant -- the Supreme Court has recognized time and again that the President is, as the court said and Curtiss-Wright, the sole organ of the nation in foreign affairs so he sets foreign policy.

And if staffers disagree with him that does not mean that the President is doing something wrong and this is a critical point because this is one of the center pieces of the abuse of power theory that the House Managers would like this body to adopt.

And that is that they are going to impeach the President based solely on his subjective motive. The premise of their case is the object of actions that were taken were perfectly permissible and within the President's constitutional authority but if his real reason if we get inside his head and figure it out then we can impeach him.

And the way that they have tried to explain that they can prove that the President had a bad motive is they say well we compare what did the President want to do was what the inner agency consensus was.

And I mentioned this the other day. They say that the President defied and confounded every agency in the Executive Branch. That's a constitutionally incoherent statement. The President can not defy the agencies within the Executive Branch that are subordinate to him.

It is only they who can defy the President's determinations of policy. And so what this all boils down to really is it shows that this case is built on a policy difference and a policy difference where the President is the one who gets to determine policy because he's been elected by the people to do that.

And we're right now only a few months away from another election where the people can decide for themselves whether they like what the President has done with that authority or not. And that's the way disputes about policy like that should be resolved. It's not legitimate to say that there's some inner agency consensus that disagrees with the President and therefore we can show he did something wrong and therefore he could be impeached.

That's an extraordinarily dangerous proposition because it lacks any Democratic legitimacy whatsoever is contrary to the Constitution and it should be rejected by this body.

The President is the one who gets to set foreign policy because that's the role assigned to him in the Constitution. And it was even Lieutenant Colonel Vindman who had complained about the July 25th call. Himself ultimately agreed that it was only a policy difference -- it was a policy concern that he raised about the call. That's not enough to impeach a President of the United States. Thank you.

ROBERTS: Thank you, Counsel. The Senator from New Hampshire.

SEN. JEANNE SHAHEEN (D-NH): Mr. Chief Justice, I send a question to the desk.

[13:55:00]

ROBERTS: Senator Shaheen asks the House Managers. The President's counsel has argued that the alleged conduction set out in the articles does not violate a criminal statute and thus may not constitute grounds for impeachment as high crimes and misdemeanors.

Does this reasoning imply that if the President does not violate a criminal statute he could not be impeached for abuses of power such as ordering tax audits of politic opponents, suspending habeas corpus rights, indiscriminately investigating political opponents, or asking foreign powers to investigate members of Congress?

REP. SYLVIA GARCIA (D-TX): Mr. Chief Justice, Senators, I appreciate the question. The simple answer is that a President can be impeached without a statutory crime being committed. That was the position and the (ph) question was rejected in President Nixon's case and rejected again in President Clinton's case. It should be rejected here in President Trump's case.

The great preponderance of legal authority confirms that impeachable offensives of legal authority confirms that it is not defied in crime conduct. This according through nearly every legal scholar to have studied the issue, multiple Supreme Court justices who addressed it in public remarks, and prior impeachments in the house. This conclusion follows that constitutionalist history, text, and structure and reflects the absurdities and practical difficulties that would result where the impeachment power confine to indictable crimes. As slide 35 shows, first the plain text of the Constitution does not require that an offense be a crime in order for it to be impeachable.

Alexander Hamilton explained that impeachable offenses, high crimes and misdemeanors are defined fundamentally by the abuse or violation of some public trust -- some public trust. They are political as they relate chiefly to injuries done immediately to the society itself.

Offenses against the Constitution are different than offenses against the criminal code. Some crimes like jaywalking are not impeachable and some forms of misconduct often offend the -- both offend the Constitution and the criminal law. Impeachment and criminality must therefore be assessed separately even though the President's commission of indictable crimes may further support a case of impeachment and removal. The American experience with impeachment confirms this.

A strong majority of impeachments voted by the House since 1789 have included one or more allegations that did not charge a violation of criminal law, although President Nixon resigned before the House could consider the articles in the impeachment against him, Judiciary Committee allegations encompass many, many noncriminal acts.

And in President Clinton's case the Judiciary Committee report accompanied the articles of impeachment to the House floor stated that, "The actions of President Clinton did not have to rise to the level of violating the federal statute regarding articles obstruction of justice in order to justify impeachment.

The framers intended impeachment to reach the full spectrum of presidential misconduct that threatened the Constitution. They also intended that our Constitution endure throughout the ages - in other (inaudible) one, two and three but new ones came (ph) came up if you had to keep up with the times because it was better to have the full spectrum of presidential misconduct.

Because they could not anticipate and specifically prohibit every single threat a president might some day pose, the framers adopted a standard sufficiently general and flexible to meet unknown future circumstances.

[14:00:00]