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Senators Ask Questions To The House Managers, Trump Lawyers. Aired 5-6p ET

Aired January 29, 2020 - 17:00   ET

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

[17:00:00]

The question is, why did he stop the aid? Why did he stop the aid this year and no prior year? Was it merely a coincidence? Are we to believe it was merely a coincidence that it was the year that Joe Biden was running for president? Are we to believe that of all the companies in all of the land, of all the gin joints in all the land in Ukraine that it was just Hunter Biden walking into this one, that was the reason why that he was interested in Burisma was just a coincidence that involved son of his opponent?

But look, more and more is coming out. Let's make sure that you learn whatever you feel you need to know to render a judgment now, when it can form your decision, and not later.

J. ROBERTS: Thank you, Manager.

FISCHER: Mr. Chief Justice.

J. ROBERTS: The senator from Nebraska.

FISCHER: I send a question to the desk on behalf of myself, Senator Crapo and Senator Risch.

J. ROBERTS: Thank you.

The senators ask counsel for the president, the president's counsel has underscored the administration's ongoing anti-corruption focus with our allies. At what point did the United States government develop concerns about Burisma in relation to corruption and concerns with Russia?

PHILBIN: (OFF-MIKE)... that question, and I think it bears on the answer that I was last giving to the last question. This is something that became -- of course, President Trump, in his conversation with President Zelensky on the July 25th call, as the transcript shows us, brought up a couple of things. He brought up burden-sharing specifically. And he raised the issue of corruption in two specifics. The specific case of potential Ukraine interference in the 2016 election, which he had heard about and asked about, and the incident involving the firing of a prosecutor who, according to public reports, had in looking into Burisma, the company that the vice president's son was on the board of. And it was -- that was the president's way of pinpointing specific issues related to corruption. So when did it become part of the president's concern, those issues related to corruption in Ukraine? Of course, we have the evidence that everyone in the government, Fiona Hill testified to this, thought that anti-corruption was a major issue for U.S. policy with respect to Ukraine.

When there was a new president elected in April, President Zelensky, that brought the possibility of reform to the forefront, then we know that the President was receiving information from his private attorney, Rudy Giuliani, and he spoke in the Oval Office of "Rudy knows about the Ukraine, you guys go talk to him" cause he was explaining to the delegation that had just returned from the inauguration for the President -- for President Zelensky that he had concerns about Ukraine cause they're all corrupt, and he kept saying "it's a corrupt country, I don't know, they tried to get me in the elections."

So it draws again -- and there's his specific experience with Ukrainian corruption because he knew from the public reports, as in the Politico article that has been referenced many times -- the Politico article in January of 2017 explained a laundry list of Ukrainian government officials who had been out there attempting to assist the Hillary Clinton campaign and spread misinformation or bad information or assist in digging up dirt on members of the Trump campaign.

Mr. Giuliani had been investigating things related to Ukraine in 2016 and was led to the information about the Burisma situation and Vice President Biden having the prosecutor fired, so that was in January that he had these interviews he turned over to the State Department in March.

And then there were a series also of public articles published. John Solomon in The Hill published an article in March, Rudy Giuliani tweeted about it in March.

[17:05:00]

There was an ABC story in June. There was a two-part New Yorker story about Bidens and Burisma in July. Then July 22nd, the Washington Post had an article and explained specifically on just July 22nd -- this was three days before the July 25th call -- the Washington Post reported that Mr. Shokin, the prosecutor, quote "believed his ouster was because of his interest in the company," end quote, referring to Burisma, and he said that quote "had he remained in his post, he would have questioned Hunter Biden," end quote.

So I think it is a reasonable inference that as there were these articles being published in close proximity to the time, this was information that was available to the President and it became available to him as something that was a specific example of potentially serious corruption.

And remember, everyone who testified who was asked about it -- "does it seem like there's an appearance of a conflict of interest, does it seem like that's fishy?" -- everyone testified below "yes, there's at least an appearance of a conflict of interest there."

And I think it was after the information had come to Mr. Giuliani, long before Vice President Biden had announced his candidacy, that it came to the attention of the President and became something worth raising because again, President Poroshenko is the one who fired the prosecutor. While he's still the President, it's not really as much of a -- an opportunity or a possibility of raising that.

And so I think it was in that timeframe, along that arc of the timing, that it came to the President's attention and that's why it was raised in that timing. Thank you.

J. ROBERTS: Thank (inaudible).

BLUMENTHAL: Mr. Chief Justice?

J. ROBERTS: The Senator from Connecticut?

BLUMENTHAL: Thank you, Mr. Chief Justice. I have a question for the counsel for the President.

J. ROBERTS: Thank you. Senator Blumenthal asks "did anyone in the White House or outside the White House tell anyone in the White House Counsel's Office that publication of the Bolton book would be politically problematic for the President?"

PHILBIN: Thank you, Mr. Chief Justice, thank you, Senator, for the question. No, no one from inside the White House or outside the White House in -- told us that the publication of the book would be problematic for the President.

I -- I think we assumed that Mr. Bolton was disgruntled and we didn't expect he was going to be saying a lot of nice things about the President but no -- no one told us anything like that.

J. ROBERTS: ... counsel (ph).

CRUZ: Mr. Chief Justice?

J. ROBERTS: The Senator from Texas?

CRUZ: I send a question to the desk on behalf of myself and senators Moran and Hawley and is a question for the House managers.

J. ROBERTS: Thank you. The question from the senators to the House managers -- "An August 26, 2019 letter from the Intelligence Community Inspector General to the Director of National Intelligence discussing the so-called whistleblower stated that the Inspector General identified some indicia of an arguable political bias on the part of the complainant in favor of a rival political candidate. Multiple media outlets reported that this likely referred to the whistleblower's work with Joe Biden. Did the so-called whistleblower work at any point for or with Joe Biden? If so, did he work for or with Joe Biden on issues involving Ukraine and did he assist in any material way with the quid pro quo in what -- in which then-Vice President Biden has admitted to conditioning loan guarantees to Ukraine on the firing of the Prosecutor investigating Burisma?"

[17:10:00]

SCHIFF: I thank the senators for the question and I want to be very careful in how I answer it so as not to disclose or give any indication that may allow others to identify the identity of the whistleblower. But first, I want to talk about why we're making such an effort to protect the identity of the whistleblower. If you could put up Slide 48?

This slide shows -- it may be difficult for some of you to read so let me try to -- actually, if you could hand me a copy of that, as well, and have a chance to distribute that to everyone? It's not just that we view the protection of whistleblowers as important. Members of this body have also made strong statements about just how important it is to protect whistleblowers.

Senator Grassley said "this person appears to have followed the whistleblower protection laws and ought to be heard out and protected. We should always work with -- to respect whistleblowers requests for confidentiality."

Senator Romney -- "whistleblowers should be entitled to confidentiality and privacy because they play a vital function in our democracy."

Senator Burr -- "we protect whistleblowers, we protect witnesses in our committee."

Even my colleague, the Ranking Member, Mr. Nunes -- "we want people to come forward and we will protect the identity of those at all costs."

This has been a bipartisan priority and one that we have done our best to maintain so I want to be very careful. But let me be clear about several things about the whistleblower. First of all, I don't know who the whistleblower is. I haven't met them or communicated with them in any way.

The community -- the committee staff did not write the complaint or coach the whistleblower what to put in the complaint. The committee staff did not see the complaint before it was submitted to the Inspector General.

The committee, including its staff, did not receive the complaint until the night before Acting Director of National Intelligence -- we had an open hearing with the Active (sic) Director on September 26, more than three weeks after the legal deadline by which the committee should have received the complaint.

In short, the conspiracy theory which I think was outlined earlier, that the whistleblower colluded with the Intel Committee staff to hatch an impeachment inquiry is a complete and total fiction. This was, I think, confirmed by the remarkable accuracy of the whistleblower complaint, which has been corroborated by the evidence we subsequently gathered in all material respects. So I'm not going to go into anything that could reveal or lead to the revelation of the identity of the whistleblower but I can tell you because my staff's names have been brought into this proceeding that my staff acted, at all times, with the most complete professionalism.

I am very protective of my staff, as I know you are, and I'm grateful that we have such bright, hard-working people working around the clock to protect this country and have served our committee so well. And it really grieves me to see them smeared and some of them mentioned here today have concerns about their safety and there are online threats to members of my staff as a result of some of the smears that have been launched against them.

I can tell you there's no one who could understand the plight of Ambassador Yovanovitch more than some of my staff, who have been treated to the same kind of smears and now have concerns over their own safety.

They acted at all times with the utmost propriety and integrity. Your Senate Intelligence Committee and your Chairman and Vice Chairman can tell you encourage whistleblowers to come to their committee and so do we.

And when they do, we try to figure out is there a complaint within the scope of jurisdiction of the Intelligence Committee? And if it is, then we suggest they get a lawyer or we suggest they talk to the Inspector General, which is what happened here.

The whistleblower did exactly what they should. Except for the President, that's unforgivable, because the whistleblower exposed the wrongdoing of the President. In the President's view, that makes him or her a traitor or a spy.

And as the President tells us, there is a way we used to treat traitors and spies. You wonder why we don't want to call the whistleblower? Well first of all, we know firsthand what the whistleblower wrote secondhand in that complaint.

[17:15:00]

There's no need for that whistleblower anymore except to further enganger (sic) that person's life. That, to me, does not seem a worthwhile object for anyone in this chamber, on the other side of this building, in the Oval Office or anywhere else.

J. ROBERTS: Thank you, counsel -- Mr. Manager. Senator from Rhode Island?

WHITEHOUSE: Mr. Chief Justice, on my own behalf and on behalf of senators Blumenthal, Booker, Coons, Klobuchar, Leahy, Markey, Peters and Udall, I send a question to the desk.

J. ROBERTS: The question from Senator Whitehouse and the other senators to the House managers -- "The missing witness rule, which dates back to 1893 Supreme Court case Graves v. United States, allows one party to obtain an adverse inference against the other for failure to produce a witness under that party's control with material information. Here, one party, the President, has prevented witnesses within his control from testifying or providing documents. Do the House managers believe senators should apply the missing witness rule here, and if so, what adverse inferences should we draw about the missing testimony and documents?"

SCHIFF: Mr. Chief Justice, senators, we do believe that you should draw an adverse inference against the party resisting the testimony of these witnesses, like John Bolton. Courts have long recognized that when a party has relevant evidence within his control which he fails to produce, that failure gives rise to an inference that that evidence is unfavorable to him.

Courts have frequently drawn adverse inferences where a party acts in bad faith to conceal evidence or preclude witnesses from offering testimony. And I would suggest that it is bad faith when some -- when counsel comes before you and says that "if you really wanted these witnesses, you should have sued to get them in the House" and goes into the court room down the street and says "you can't sue to get witnesses before the House."

But that's what's happened here and you are, I think, not only permitted but absolutely should draw an adverse inference that when a party is making that argument on both sides of the courthouse, that the evidence those witnesses would provide runs against them.

Now, the administration hasn't produced a single document, not one -- a single document, it's extraordinary. They can argue executive privilege and absolute immunity. Most of that has nothing to do with the overwhelming majority of these documents, not a wit. There's no absolute immunity from providing documents.

The vast, vast majority don't have anything to do with privilege, and if they did, they would be -- redactions -- very specific redactions. None of that happened. Are you allowed to draw an adverse inference that the reason why the President's team, which has possession of those e-mails regarding inquiries by Ukraine into why the aid was frozen, are you allowed to draw an inference if they won't show you those e-mails, that those e-mails would confirm that Ukraine knew the aid was withheld, just like the former Deputy Foreign Minister of Ukraine said publicly when she told the New York Times "yes, we knew -- by the end of July, we knew" -- this is the Deputy Foreign Minister at the time -- "we knew the aid was frozen but I was instructed by Andriy Yermak not to mention it. I had a trip planned to Washington, talk to Congress, I was told not to go." Why? Because they didn't want it public.

Are you entitled to draw an inference that those records they refuse to turn over, all those State Department records, the fact that they won't allow John Bolton's notes to be turned over, they won't let Ambassador Taylor's notes to be turned over.

Should you drive an adverse inference? You're darn right you should. Now they say, well the president only told Sondland no quid pro quo -- they leave out the other half where Sondland told Taylor that he said no quid pro quo, but you've got to go to the mike and announce these investigations.

Well Ambassador Taylor wrote down the notes of that conversation -- that took place right after that call with the president.

[17:20:00]

Are you allowed to draw an adverse inference from the fact they don't want you to see Ambassador Taylor's notes? From the fact they don't want you to see Ambassador Taylor's cable (ph) -- you're darn right you should draw an adverse inference.

And finally, with respect to the -- who has become the central witness here, I think the adverse inference screams at you as to why they don't want John Bolton, but you shouldn't rely on inference here -- not when you have a witness whose willing to come forward. There is no need for inference here, there's just a need for a subpoena.

J. ROBERTS: Thank you, Mr. Manager.

THUNE: Mr. Chief Justice.

J. ROBERTS: Yes, the Senator from South Dakota.

THUNE: A question sent to the desk.

J. ROBERTS: Thank you. Senator Thune's question is for counsel for the president. Would you please respond to the arguments or assertions the House managers just made in response to the previous questions?

PHILBIN: Mr. Chief Justice -- thank you, Senator for the question. I haven't read recently the case that was cited about the missing witness role, so I can't say specifically what's in it, but I'm willing to bet that the missing witness rule (ph) does not apply when there's been a valid assertion of a privilege or other immunity for keeping the witness out of court.

So for example if they tried to subpoena the defendant's lawyer and the defendant said, wait, I have attorney-client privilege you can't subpoena him -- they're not going to be able to get an adverse inference from that.

And that's critical, because as I've gone through multiple times, and you know, we keep going back and forth on this -- they keep representing that there was a blanket defiance and there was no explanation and there was no legal basis for what the president was doing -- and it's just not true.

There were letters back and forth, I put them up on the screen. There were specific immunities asserted, there were specific legal deficiencies in the subpoenas that were sent, and this is important because if you're going to impeach the president of the United States -- turning square corners and proceeding by the law matters.

And for the House managers to come here and say it was blanket defiance, it was unprecedented -- that you have to draw an adverse inference against them because they didn't respond to any of our document subpoenas -- all the document subpoenas were issued without authorization.

Maybe they disagree with us, but they can't just say we provided no rationale and you have to draw an adverse inference. There was a specific legal rationale provided, and they didn't try to engage in the accommodation process, and they didn't try to go to court. And now yes, it's true, our position is that when they go to the court, article three courts don't have jurisdiction over that.

Their position is article three courts do have jurisdiction over that -- they believe that they can get a court order to require us to comply with a valid subpoena, but they never tried to establish in court that their subpoenas were valid.

We have an assertion of a legal deficiency on one side, they think it's different, they don't want to go to court to get it resolved. We have the assertion of absolute immunity from Congressional compulsion for senior advisors to the president -- it's been asserted by virtually every president since Nixon.

They tried to say oh it's preposterous, it's irrelevant, and we don't have to worry about that. Every president since Nixon, virtually, has asserted that. It's only been addressed by two district courts, trial level courts.

The first one rejected it, and its decision was stayed by the appellate court which means the appellate court thought probably you got it wrong, or at a minimum it's a really difficult question we're not sure about that.

And the second district for a decision is being litigated right now -- they're litigating it. And when they say that when Charlie Kupperman went to court, they were trying to do something reasonable to say, oh well, we don't want to litigate this with you, you should just agree to be bound by the McGahn decision.

[17:25:00]

What's the saying every litigant gets his day in court? Why shouldn't Charlie Kupperman get to have his counsel argue that issue on his behalf? That's what he wanted.

He didn't want to say I'm going to trust it to the other people litigating the other case -- I've got my case, I want to make the arguments. But they wouldn't have that, so they mooted out the case. They withdraw the subpoena to moot out the case, because they didn't want to go to the hearing in front of Judge Leon (ph) on December 10.

They've also pointed out as if it's some outrage, that documents have been more readily produced under FOIA than in response to their subpoenas. What that actually shows is that when you turn square corners and follow the law, and make a request to the administration that follows the law -- the administration follows the law and responds, and that's right. The documents were produced, information came out.

But they didn't get it because they issued invalid subpoenas and they didn't try to do anything to establish the validity of their subpoenas. If you're going to be sloppy and issue invalid subpoenas, you're not going to get a response. But if some private litigant follows FOIA and submits a FOIA request, they get a response.

So to act like the Trump administration has done some blanket denial of everything simply isn't accurate, and there's no basis for any adverse inference, because there's a specific privilege or basis for every reason not to produce something. Thank you.

J. ROBERTS: Thank you counsel.

(UNKNOWN): Mr. Chief Justice.

J. ROBERTS: Yes, Senator from New Hampshire.

(UNKNOWN): Thank you Mr. Chief Justice, I send a question to the desk for the House managers.

J. ROBERTS: Thank you.

The question is for the House managers, did acting Chief of Staff Mick Mulvaney waive executive privilege in this October 17 press conference, in which he stated that there was, "political influence," in the Trump administration's decision to withhold aid to aid to Ukraine?"

JEFFRIES: Mr. Chief Justice, Distinguished Members of the Senate, I thank you for that question. Mick Mulvaney has absolutely waived executive privilege. He has never asserted executive privilege.

In fact, as the president's counsel has acknowledged, they have not asserted executive privilege once. The president's counsel has said when we made that point during our opening arguments that that was technically true.

No, it's true. It's not an alternate fact. It's a fact. You have never asserted executive privilege in connection with Mick Mulvaney's testimony or anyone else. It was not asserted as it related to any of the 17 witnesses who testified, 12 of whom testified publicly.

The other phony arguments that have been articulated, respectfully, are that the House needed to vote in order for the subpoenas to be valid. There is nothing in the Constitution that required the full House to vote, nothing in Supreme Court precedent, nothing under federal law, nothing under the House rules. It was a phony argument.

Yet, the House, after the initial stages of the investigation, did fully vote and fully voted on October 31st. Interestingly enough, Mick Mulvaney was subpoenaed thereafter -- not before, thereafter -- after the House had voted. Subpoenaed on November 7, here it is.

The next day, the White House responded.

[17:30:00]

It responded with a two-page letter dated November 8th. There is no mention of executive privilege in the November 8th letter. But here's what it does say, "The Department of Justice has advised me that Mr. Mulvaney is absolutely immune from compelled congressional testimony with respect to matters related to his service as a senior advisor to the president."

What's interesting about this letter from Mr. Cipollone is that it doesn't cite a single legal case for that outrageous proposition -- a single legal case -- for the proposition that Mick Mulvaney is absolutely immune. Why? Because there's no law to support it. The president tried to cheat, he got caught and then he worked hard to cover it up.

The Senate can get to the truth. You can get to the truth by calling witnesses who can testify. And any privilege issues can be worked out by the chief justice of the Supreme Court.

The American people deserve a fair trial. The president deserves a fair trial. The Constitution deserves a fair trial. That includes Mulvaney, that includes Bolton, that includes other relevant witnesses.

J. ROBERTS: (OFF-MIKE) Thank you, Mr. Manager.

MURKOWSKI: Mr. Chief Justice.

J. ROBERTS: Senator from Alaska.

MURKOWSKI: Mr. Chief Justice, I sent a question to the desk on behalf of myself and Senator Young and Senator Crapo, the question is to be directed to both parties.

J. ROBERTS: Thank you.

The question directed to counsel for the president and the House managers. The Constitution does not specify the standard of proof to be used in trials of impeachment. And the Senate has not adopted a uniform standard by rule, thus the standard of proof is arguably a question for each individual senator.

In the Clinton trial and now with President Trump, it appears that Republicans and Democrats apply different standards depending on whether the president is a member of their party. What standard of proof should be used in trials of impeachment, preponderance of the evidence, clear and convincing, beyond a reasonable doubt, and why?

I think it's the turn of the House managers to go first.

LOFGREN: Mr. Chief Justice, senators.

There is no court case on this. The House needs strong evidence but it has never been decided beyond a reasonable doubt, as the president's counsel has suggested, and as the question notes, the Constitution does not specify either the House's evidentiary burden of proof or the Senate's.

I would note that the House Judiciary Committee held itself to a clear and convincing standard of proof in the Nixon matter, which requires that the evidence of wrongdoing must be substantially more probable to be true than not, and that the trier (ph) of fact must have a firm belief in its factuality (ph).

In the Clinton case, the House did not commit to any particular burden of proof and I would recommend against including an express standard. Instead, like in the Clinton's, simply finding the facts and any inferences from those facts without legal technicalities. It has been opined that in the end it is up to each senator to make a judgment. And I think there is much truth to that.

Your oath holds you to a finding of impartial justice. And I trust that each and every one of you is holding that oath very dear to your heart. It will find the facts and lead to a just result for our country, the Constitution, and for a future that hopefully is as free as our past has been.

I yield back.

J. ROBERTS: Thank you.

PHILBIN: Mr. Chief Justice, senators, thank you for the question.

[17:35:00]

I think that the Constitution makes it clear in the terms that it speaks of impeachment are all related to the criminal law. It speaks of offense. It speaks of conviction. It speaks of a trial in saying that crimes shall be tried by jury except in the case of impeachment. And both that and the gravity of a presidential impeachment, which is an issue of importance for the country and could cause tremendous disruption to our government, both counsel in favor of the traditional criminal standard of proof beyond a reasonable doubt.

And in the Clinton impeachment senators, both Republicans and Democrats repeatedly advocated in favor of that standard. Senator Russ Feingold then said that quote, in making a decision of this magnitude, it is best not to err at all.

If we must err however, we should err on the side of respecting the will of the people. Similarly, Senator Barbara Mikulski then said quote, the U.S. senate must not make the decision to remove a president based on a hunch that the charges may be true.

The strength of our Constitution and the strength of our nation dictate that the Senate be sure beyond a reasonable doubt. The preponderance standard is wholly insufficient. That means just 50.1 percent, you think it's a little more likely than not. That's not sufficient to remove the president.

Even clear and convincing evidence is not. It has to be beyond a reasonable doubt. As Senator Rockefeller explained at the time of the Clinton impeachment that means quote, it is proven to a moral certainty the case is clear.

That is the standard that the Senators should apply because the gravity of the issue before you would not permit apply any lesser standard. Thank you.

J. ROBERTS: Counsel.

BOOKER: Mr. Chief Justice.

J. ROBERTS: Senator from New Jersey.

BOOKER: Thank you, sir. Mr. Chief Justice, I send a question to the desk.

(UNKNOWN): Manager (ph). Thank you.

J. ROBERTS: The question is for the House Manager. Even if a communication or a document is covered by executive privilege that privilege can be overcome by showing the evidence is important and unavailable elsewhere.

On January 22nd, while this trial was underway, President Trump said quote, I thought our team did a very good job. But honestly we have all the material. They don't have the material. End quote. Can you comment on whether executive privilege allows a president to conceal information from Congress, particularly if the evidence cannot be obtained elsewhere.

JEFFRIES: Thank you, Mr. Chief Justice. And I thank the distinguished senator from New Jersey for his question. President Trump alone has the power to assert executive privilege. And as the counsel admitted on Saturday, the president has not formally invoked it over any document requested in this impeachment inquiry.

It has not been asserted as it relates to any single document. Now executive privilege gives President Trump a qualified form of confidentially when he does get advice from his aids in order to carry out the duties of his office.

And as I know you are all aware, it is often the case in congressional investigations that a president will claim executive privilege over a very small subset of materials. In that case what the executive branch usually does and should do is to produce everything that it can.

[17:40:00]

And then provide a log of documents in dispute or permit a private review of the documents that have been contested.

That's not what has occurred in this case because the president has ordered the entire executive branch to defy our constitutionally inspired impeachment inquiry. Blanket defiance is what has taken place.

And there's no right to do that. Every court that has considered the matter has asserted that the president cannot assert a privilege to protect his own misconduct, to protect wrong doing, to protect evidence that the constitution may have been violated.

The president cannot do it. In an impeachment inquiry, the congressional need for information and its constitutional authority of course are at its greatest. It's imperative to investigate serious allegations of misconduct that might constitute high crimes and misdemeanors.

And that is what is before you right now. Let's look at what the Supreme Court has said in circumstances that are closest to what we face today in U.S. versus Nixon in the context of a Grand Jury subpoena.

The Supreme Court found that President Nixon's generalized assertion of privilege must yield to the demonstrated need for evidence in the pending trial. And the federal court here in D.C. has recognized that Congresses need for information and for documents during an impeachment inquiry is particularly compelling.

Turning to the fact of this matter briefly, any argument that every single document requested by Congress is subject to privilege or some form of absolute immunity is absurd. There are calendar invitations, scheduling emails, photographs, correspondence with outside parties like Rudolph Giuliani.

These are all important pieces of evidence for you to consider and are not the type of materials subject to any reasonable claim of executive privilege. If you want a fair trial, it should involve documents.

Given the nature of these proceedings; documents like Ambassador Bolton's notes, Lieutenant Colonel Vindman's presidential decision memo should also be provided to you so you can seek the truth; the whole truth and nothing but the truth.

J. ROBERTS: Thank you, Mr. Manager.

(UNKNOWN): Mr. Chief Justice.

J. ROBERTS: Senator from Louisiana.

(UNKNOWN): Senator Moran, my colleague from Kansas and I send a question to the desk for counsel for the president.

J. ROBERTS: Thank you. The question for counsel for the president is what did Hunter Biden do for the money that Burisma holdings paid him.

BONDI: Thank you for the question. Chief Justice, Senators; as far as we know, Hunter Biden has said he quote, attended a couple board meetings a year, end quote. Here's what we do know. Hunter Biden did attend one board meeting in -- in Monaco.

Now we also heard that when Zlochevsky, the owner of Burisma fled the Ukraine, he was living in Monaco. So Hunter Biden did attend a board meeting in Monaco. We also know that Hunter Biden went to Norway on a fishing trip and he took his daughter and his nephew.

So he took two of Joe Biden's children with him on a fishing trip to Norway with Zlochevsky and that is as much as we know other than his statement that he attended one or two board meetings.

[17:45:00]

Factually that is what he said and the timeline shows that, again, Devon Archer was on the board with him.

And then Hunter Biden remained on the board but factually in the record that is as much as we know that he did involving Burisma and Zlochevsky. The Norway trip was June of 2015. He remained on the board until April of 2019.

We also know that prior to then, a Ukrainian court in September of 2016 canceled Zlochevsky's arrest warrant. We also know December 15th, Vice President Biden called President Poroshenko.

And then mid-January 2017, Burisma announces all legal proceedings against the company and Zlochevsky had been closed.

J. ROBERTS: The Democratic leader is recognized.

SCHUMER: Question to the desk for both the counsel for the president and the House Managers.

J. ROBERTS: Thank you. The question reads as follows. The House Managers say the president demands absolute immunity. The president's counsel disputes this. Can either of you name a single witness or document to which the president was given access -- has given access to the House when requested. I believe it's time for counsel for the president to go first.

PHILBIN: Mr. Chief Justice, thank you Minority Leader Schumer for the question. And let me try to be clear and distinguish a couple of things. The House managers have said there was blanket defiance. That's the way they characterized it, just we're not going to give you anything and that's all we said, it was just blanket defiance, we are not going to respond.

What I've tried to explain several times is that that was not the president's response. There were specifically articulated responses to different requests based on different legal rationales because there were different problems with different subpoenas.

So one problem is all the subpoenas up until October 31st were not validly authorized. So those subpoenas, we said, we're not going to respond to those because they weren't validly issued. It wasn't an assertion of executive privilege. It wasn't an assertion of absolute immunity. It wasn't anything else. It was the fact that they weren't validly authorized.

They pointed out that, aha, we subpoenaed, I think it was they mentioned acting Chief of Staff Mulvaney, after October 31st. That is true. We didn't rely on the fact that the subpoena was not authorized. We pointed out the doctrine of the absolute immunity of senior advisers to the president. This is not some absolute immunity for the entire executive branch. It doesn't apply to all of the subpoenas they issued.

As we explained in our brief, it applies to three. There were three people they subpoenaed as witnesses that was on this basis alone that the president declined to make them available: acting Chief of Staff Mulvaney; the legal adviser to the National Security Council, John Eisenberg, and the deputy of national security adviser, Mr. Kupperman, I believe. But it's in our brief. It was those three who had immunity, a doctrine asserted by every president since Nixon.

Then there was a different problem with some of the subpoenas. Some of the other witnesses who were not senior advisers to the president, the president did not assert that they have absolute immunity. Instead those subpoenas refuse to allow those executive branch personnel to have executive branch counsel accompany them. And there's an OLC opinion, it has been published, its online, it's cited in our trial memorandum, saying that it is unconstitutional to refuse to allow the executive branch personnel to have the assistance of executive branch counsel to protect privileged information during the questioning.

[17:50:00]

And therefore it's not valid to force them to appear without that...

(CROSSTALK)

J. ROBERTS: Thank you, Counsel.

PHILBIN: Thank you.

LOFGREN: Mr. Chief Justice and senators.

You know, we have received nothing as part of our impeachment inquiry. It's worth pointing out that the House committees that subpoenaed before the House vote had standing authority under the House rules. And they were the Oversight Committee, which has under its standard authority to investigate any matter at any time, as well as the Foreign Affairs Committee. They have the authority under the rules of the House adopted January 11th to issue subpoenas.

They did and they were defied. The idea of absolute immunity has never been upheld by any court. And it's really incomprehensible to think that somehow this concept of absolute immunity has lurked in hiding for centuries for presidents to use it in this day. When you think of the two cases, the Miers case in the McGahn case, courts completely rejected the idea of absolute immunity.

On slide 38, if you could, there is a decision recently made in the McGahn case, and here's what it says. Stated simply, the primary takeaway from the past 250 years of recorded American history is that "presidents are not kings." That's the judge's words, not mine. Compulsory appearance by dint of the subpoena is a legal construct, not a political one, and per the Constitution, no one is above the law.

The president is not permitted by the Constitution or by the law to assert any kind of absolute immunity. That does not exist in America. And as the judges pointed out, that would be something that a king would assert. I'm not saying that, but I will say this, it's something our founders set up our checks and balances to prevent. Nobody has absolute power in our system of government, not the Senate and House, not the president, not the judiciary. This is unprecedented and just wrong as a matter of law and as a matter of the Constitution.

Thank you.

J. ROBERTS: Thank you.

(UNKNOWN): Mr. Chief Justice.

J. ROBERTS: The senator from Georgia.

(UNKNOWN): Thank you, Mr. Chief Justice. I sent a question to the desk for both the counsel to the president and the House managers on behalf of Senator Cruz and myself.

J. ROBERTS: Thank you.

The question is, you refuse to answer the question on political bias. Are the House managers refusing to tell the Senate whether or not the so-called whistle-blower had an actual conflict of interest? There are 7 billion people on planet Earth, almost all had no involvement in Biden's quid pro quo. Are the House managers unwilling to say whether the so-called whistle-blower was a fact witness who directly participated in and could face criminal or civil liability for Joe Biden's demanding Ukraine fire prosecutor who was investigating Burisma? And why did he refuse to transmit to the Senate the inspector general transcript?

J. ROBERTS: Which side is -- it's addressed to both sides. I think perhaps the House managers could go first.

SCHIFF: With respect to the ICIG, the president and his allies have tried to shift focus to the inspector general of the intelligence community, a highly respected veteran of the Justice Department, and his handling of the whistle-blower complaint. There's an effort to insinuate wrongdoing on the part of the whistle-blower, and there has been an effort to insinuate wrongdoing on behalf of the inspector general.

[17:55:00]

The briefings that we had with the ICIG related to usual and problematic handling of this particular whistle-blower complaint within the executive branch, which diverts sharply from any prior whistle-blower complaint by anyone within the intelligence community.

The Intelligence Committee is continuing its ongoing oversight to determine why and how this complaint was initially concealed from the committee in violation of the law. The ICIG, Michael Atkinson, continues to serve admirably and independently, as he is supposed to do.

Like the Senate Intelligence Committee, the House Intelligence Committee does not release the transcripts of its engagements with the inspector generals on sensitive matters because doing so risks undercutting an important mechanism for the committee to conduct oversight. The transcripts remain properly classified in conformity with IC requirements to protect sensitive information.

The ICIG made every effort to protect the whistle-blower's identity and briefed us with expedition -- with the expectation, rather, that it would not be made public. And we are trying to honor that expectation.

With respect to allegations of bias on the part of the whistle-blower, let me just refer you to the conclusion of the inspector general which is after examining the whistle-blower, the whistle-blower's background, any potential allegations of any bias, the whistle-blower drew two conclusions.

The whistle-blower was credible, meaning that whatever issue, perceived or real, the inspector general found that whistle-blower credible. The inspector general also found that the whistle-blower's complaint was urgent and that it needed to be provided to Congress.

The inspector general further found that it was withheld from Congress in violation of the law, in violation of the statute. And for that he is being attacked. Now counsel for the president will rely on an opinion of the Office of Legal Counsel as its justification for violating the Whistleblower Protection Act in not transmitting the complaint to Congress.

J. ROBERTS: Thank you, Mr. Manager.

SEKULOW: Mr. Chief Justice, members of the Senate, on page five of the inspector general's report it states, "although the inspector general's preliminary review identified some indicia of arguable political bias on the part of the complainant." Now that's in the actual statement. He goes on to say, involving a rival political candidate, such evidence does not change his view about the credible nature of the concern or the -- what appears to be credible.

But to argue that it does not include an issue of political bias, the inspector general himself says that that's in fact -- at least that they said that their preliminary reviews indicate some political bias. Now there has been political -- there has been reports in the media that the individual may have worked for Joe Biden when he was vice president. He may have had some area under his watch involving Ukraine.

But I also thought it was just interesting that Manager Schiff just talked about the importance of how they control the process as it relates to a whistle-blower report, because of the sensitive nature of those. Do we not think that the sensitive nature of information shared by the president's most senior advisers should not be subject to the same type of protections? Well, of course, it has to be.

Thank you.

J. ROBERTS: Thank you, Counsel.

MANCHIN: Mr. Chief Justice, I sent a question to the desk for both the president's counsel and the House managers. J. ROBERTS: The question from Senator Manchin reads as follows, the framers took the words "high crimes and misdemeanors" straight out of English law, where it had been applied to impeachments for 400 years before our Constitution was written. The framers were well aware when they chose those words that Parliament had impeached officials for high crimes and misdemeanors that were not indictable as crimes. The House has repeatedly impeached, and the Senate has convicted officers for high crimes and misdemeanors that were not indictable crimes. Even Mr. Dershowitz said in 1998 that an impeachable offense, quote, "certainly doesn't have to be a crime," end quote.

What has happened in the past 22 years to change the original intent of the framers and the historic meaning of the term "high crimes and misdemeanors"?

[18:00:00]

END