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Senators Question House Managers, Trump Lawyers. The Impeachment Trial of Donald J. Trump. Aired 3-3:30p ET

Aired January 30, 2020 - 15:00   ET

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

REP. ADAM SCHIFF (D-CA): Their own attorney general doesn't agree with their theory of the case.

[15:00:00]

But again, we don't have to rely on Bill Barr's opinion or Alan Dershowitz opinion, or my opinion or the consensus of constitutional scholars everywhere who can rely on our common sense because the conclusion that a President can abuse his power by corruptly entering into a quid pro quo to get a foreign intelligence service or a foreign govern -- a foreign leader to do their political dirty work and help them cheat in the election, our common sense tells us that can not be compatible with the office of the presidency, and if we say it is, if we say it's beyond the reach of the impeachment power or we engage in the sophistry and we say because you put it under the rubric of abuse of power, even though that was the framers core offence, and you didn't put it under some other rubric.

Well, we won't even consider it, if we're going to engage in that kind of legal sophistry it leaves the country completely unprotected from a President who would abuse his power in this way. That cannot be what the framers had in mind.

The constitution is not a suicide pact. It does not require us to surrender our common sense. Our common sense as well as our morality tells us what the President did was wrong, when a president sacrifices the national security interests of the country, it's not only wrong, but it's dangerous when a president says as we saw just a moment again over and over again, he will continue to do it if left in office.

It is dangerous, the framers provided a remedy and we urge you to use it.

JOHN ROBERTS, CHIEF JUSTICE OF THE UNITED STATES: Thank you, Mr. Manager.

SEN. MIKE BRAUN (R-IN): Mr. Chief Justice.

ROBERTS: The Senator from Indiana.

BRAUN: I ask to send the question to the desk on my behalf on Senator Barrasso for the President's counsel. ROBERTS: Thank you. A question from Senator Braun and Barraso for Counsel for the President. The House managers have said the country must be saved from this President, and he does not have the best interests of the American people and their families in mind. Do you wish to respond to that claim?

ERIC HERSCHMANN, ATTORNEY FOR PRESIDENT DONALD TRUMP: Mr. Chief Justice, members of the Senate. While the House Managers are coming before you and accusing the President of doing things in their words, solely for personal and political gain and claiming that is not doing things in the best interest of the American people, the American people are telling you just the opposite. The President's approval rating while we are sitting here in the middle of these impeachment proceedings have hit an all time high.

A recent poll shows that the American people are the happiest they've been with the direction of the country in 15 years. Whether it's the economy, security, military preparedness, safer streets, or safer neighborhoods; they're all way up. We, the American people are happier. And yet, the House Managers tell you that the president needs to be removed because he's an immediate threat to our country.

Listen to the words that they just said. We -- we, the American people, cannot decide who should be our president because, as they tell us and these are their words, quote; we cannot be assured that the vote will be fairly won.

Do you really, really believe that. Do you really think so little of the American people? We don't. We trust the American people to decide who should be our president. Candidly, it's crazy to think otherwise. So what's really going on?

What's really going on is that he's a threat to them and he's an immediate legitimate threat to them. And he's an immediate legitimate threat to their candidates because the election is only eight months away.

Let's talk about some of the things the president has done. We've replaced NAFTA with the historic MCA. We've killed a terrorist, Al- Baghdadi and Soleimani. We secured $738 billion to rebuild the military.

[15:05:00]

There are more 7 million jobs created since the election. Illegal border crossings are down 78 percent since May and 100 miles of the wall have been built. The unemployment rate is the lowest in 50 years. More Americans, nearly 160 million are employed than ever before.

The African American unemployment, the Hispanic American unemployment, the Asian American unemployment has the lowest rate ever recorded. Women's unemployment recently hit the lowest rate in more than 65 years. Every U.S. metropolitan area saw per capita growth in 2018.

Real wages have gone up by 8 percent for the low income workers. Real median household income is now the highest level ever recorded. 40 million fewer people live in households receiving government assistance. We signed the biggest package of tax cuts and reforms in history.

Since then, over $1 trillion has poured back into the U.S. 650,000 single mothers have been lifted out of poverty. We secured the largest ever increase for child care funding, helping more than 800,000 low income families access high quality affordable care.

We passed, as Manager Jeffries will recall, bipartisan crystal -- criminal justice reform. Prescription drugs have been -- see the lowest price decrease -- the largest price decrease in over half a century. Drug overdose deaths fell nationwide in 2018 for the first time in nearly 30 years.

A Gallup Poll from just three days ago says that President Trump's upbeat view of the nation's economy, military strength, economic opportunity, and overall quality of life will likely resonate with Americans when he delivers the State of the Union Address to Congress next week.

If all that is solely -- solely, in their words, for his personal and political gain and not in the best interest of the American people, then I say God bless him. Keep doing it. Keep doing it. Keep doing it.

Maybe if the House Managers stop opposing him and harassing him and harassing everyone associated with him, with the constant letters and the constant investigations maybe we can even get more done. Let's try something different now. Join us. Join us. One nation -- one nation, one people. Enough is enough. Stop all of this. Thank you.

SEN. MICHAEL BENNET (D-CO): Mr. Chief Justice.

ROBERTS: The Senator from Colorado.

BENNET: Thank you. I send a question to the desk from myself and Senator Schatz, and Senator Menendez.

ROBERTS: Thank you. The question from Senators Bennet, Menendez and Schatz is to the House Managers. If the Senate accepts the president's blanket assertion of privilege in the House Impeachment Inquiry, what are the consequences to the American people.

How will the Senate insure that the current president or a future president will remain transparent and accountable? How will this affect the separation of powers? And in this context could you address the president's counsels' claim that the president's advisors are entitled to the same protections as a whistleblower.

NADLER: Senate, privileges are limited. We have voted to impeach the president for among other things, Article 2 of the impeachment is total defiance of House subpoenas. And the president announced in advance, I will defy all the subpoenas. What does this mean?

It means there's no information to Congress. It means the claim of monarchical dictatorial power. If Congress has no information it cannot act. If the president can define -- now he can dispute certain specific claims. You can claim privilege et cetera.

But to defy categorically all subpoenas to announce in advance you're going to do that and to do it is to say that Congress has no power at all, only the executive has power. That's why Article 2 is impeaching him for abuse of Congress.

That's why for much less a degree of offense, Richard Nixon was -- was impeached for abuse of Congress for the same defiance of any attempt to -- by the Congress to investigate. But this -- and what are the consequences.

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The consequences, if this is to be -- if he's to get away with it, is there subpoena you vote in the future, any information you want in the future from any future president may be denied you.

With no excuses announced in advance of to fight all the subpoenas, it eviscerates Congress and establishes the department -- the executive department is a total dictatorship. That's the consequences.

Now I want to also talk about and the motives -- the motives are clearly dictatorial. But I want to also take a point, since I have the floor to answer a question -- comment on a question that Senator Collins and Senator Murkowski asked yesterday.

And they asked about the question of mixed motives. What if -- how do you define -- how do you deal with a-- with a -- with a deed with a president who may have a corrupt motive and a find motive and how do you deal with it.

And Professor Dershowitz said well, you have to look at the -- you have to mix, you have to weigh balances. Nonsense. Nonsense. We never in American law look at decent motives if you can prove a corrupt motive. If I am offered a bribe and I accept the bribe, the corrupt motive, I will not be heard in defense to say, oh, I would have voted for the bill anyway. It was a good bill.

You don't inquire into other motives. Maybe you had good motives. But once the corrupt motive and the corrupt act was established there is no comparison. All of this is just nonsense to point away from the fact that the president has been proven beyond a shadow of a doubt and the defenders don't even bother really to defend. They just come out with distractions.

It has been proven beyond a reasonable doubt (ph) to abuse his power by violating the law, to withhold military aid from a foreign country, to extort that country and to helping his reelection campaign by slandering his opponent. Corrupt? No question. A violation of the law? No question. Factually, no question. They don't even make a real attempt to -- to deny it. Everything is a distraction and the one chief distraction is once you prove a corrupt act, that's it. You never measure the degree of maybe you had decent motives too. So Professor Dershowitz in talking about that and talking about the absolute power of the presidency was just absent from American law or any kind of western law. ROBERTS: Thank you Mr. Manager.

SEN. DAVID PERDUE (D-GA): Mr. Chief Justice?

ROBERTS: The Senator from Georgia.

PERDUE: I sent a question to the desk for the president's council on behalf of myself, Senator Ernst and Senator Barrasso.

ROBERTS: Thank you. The question from Senators Perdue, Ernst and Barrasso for the counsel for the president is as follows: Please summarize the House of Representatives three-stage investigation and how the president was denied due process in each stage. Combined with Manager Schiff's repeated leaks during the house's investigation, do these due process violations make this impeachment the fruit of the poisonous tree?

PAT PHILBIN, DEPUTY COUNSEL TO PRESIDENT DONALD TRUMP: Mr. Chief Justice, Senators, thank you for that question and the short answer as I think I've indicated a couple of the times that I've been up here is yes, this entire proceeding here is now the fruit of the poisonous tree.

It is the fruit of a proceeding that was fatally deficient in due process from the start to the beginning and as a result of that, it produced a record that is totally unreliable; can't be relied on here for any conclusion other than acquitting the president. And let me detail the three phases.

First, the first error was that the House began the proceeding in a totally unconstitutional, unlawful and illegitimate manner. It started an impeachment inquiry without any vote of the house to authorize that inquiry.

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And I want to spend a second on this because the House Managers have spent a lot of time today trying to go back and argue about why their proceeding was all right but they're not actually engaging the real issues.

In order for the House to exercise the power of impeachment, there has to be a delegation of that authority to a committee. That's just a fundamental principle that the Constitution gives power to the House itself, not to individual members of the house, not to the speaker.

Just as here in the Senate you wouldn't think that the Majority Leader could say if an impeachment arrived, the majority leader could say, guess what? We're not going to do a trial with the whole Senate. I, the Majority Leader am going to just decide that I'm going to have one committee hear the evidence, provide a summary and then you all can vote.

The Majority Leader doesn't have the authority on his own to do that. The Speaker doesn't have the authority in the House to give the power of impeachment to any committee to start pursuing an inquiry. And this is the key, there is no rule giving any committee in the House the authority to use the power of impeachment.

Rule 10 speaks of legislative authority not the power of impeachment. And all the subpoenas that were issued came with letters saying on them pursuing to the House's impeachment inquiry. They purported to be using a power that hadn't actually been delegated to the committee. That's the first flaw.

Illegitimate, unlawful proceeding from the start. Then there are due process flaws, three stages of hearings. One, secret hearings in the basement bunker; the president is locked out. No opportunity to cross- examine witnesses to see the evidence, to present evidence.

And then they go from that to the public hearings what's really just a public show trial because the president is still cut out; totally unprecedented in any presidential impeachment that there would be that second phase of public hearings where the president is still cut out. Can't present evidence; the minority members don't have equal subpoena authority.

The third phase in front of the House Judiciary Committee, the purport to have offered rights but I've explained that. It was a losery because they had already decided before the president was even supposed to respond with what rights he would like to exercise, the speaker had announced the result.

There were going to be Articles of Impeachment. The Judiciary Committee had decided they weren't going to hear from any fact witnesses. They had no plans for hearings. It was all a foregone conclusion because they had to get it done by Christmas.

And the third error that Chairman Schiff was in charge of all the fact finding and he had an interest because of the interactions of his office with the whistle-blower that we still don't know about to shut down questioning about the motive, the bias, the reasons that the whistle-blower or how this all came about.

All three of those areas affected this process from the very beginning. They resulted in a one-sided, slanted fact-finding that was rushed by a person finding the fact finding who had a motive to limit what facts would be allowed to get into the proceedings and it produced a record that cannot possibly be relied on here.

We've said many times the Supreme Court has made clear that cross examination is the greatest legal engine ever invented for the discovery of truth and they didn't permit the president the opportunity to cross examine anyone.

And that's an indication that the goal was not a search for the truth. It was a partisan charade intended to justify a preordained result and to get it done by Christmas and it's not a record that be relied on here. Thank you.

ROBERTS: Thank you Counsel.

SEN. TAMMY DUCKWORTH (D-IL): Mr. Chief Justice?

ROBERTS: The Senator from Illinois?

DUCKWORTH: I send a question to the desk for the House Managers.

ROBERTS: Thank you. The question from Senator Duckworth for the House Managers.

If the hold on aid to Ukraine was meant to be kept secret until the President could gather internal U.S. government information on Ukraine corruption and European cost sharing, then is there any documentary evidence of this?

For example, is there any evidence that the President was briefed on those issues by the NSC, DOD or State Department during the period of the hold in the Summer of 2019 or any evidence that he requested specific information on anti-corruption reform measures in Ukraine? Prior to releasing the aid on September 11th, 2019, did the President order any changes to administration policy to address corruption in Ukraine or burden sharing with our European allies?

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SEN. JASON CROW (D-CO): Chief Justice, thank you, senator, for that question. Let's just take a -- a moment and address what the process should have looked like because, you know, as we've already established and as President's counsel has conceded and we have conceded is this does happen, right?

There is a legitimate policy process for review and for a determination on hold because there is indeed legitimate policy reasons to hold aid and we've never said that corruption is not one of those or burden sharing wouldn't be one of those.

What we're saying is that there's no evidence in that what we are talking about today, that the President was concerned or engaged that process. So what would normally happen is Congress would come together, as we did, we passed appropriations bills and we made a determination that funding was appropriate for the aid, which 87 members of the Senate did this past year.

The President would then rely on the advice of government experts from the National Security Council, the Department of Defense, the State Department and the Office of Management and Budget regarding that aid.

That's the -- the interagency process that we've talked so much about, the interagency process that we went through earlier last year and at the conclusion of that interagency process, it was determined that it had met all of the conditions for the aid and all of the agencies determined that it should go forward.

The President would then seek permission from Congress that he intended to -- would normally, if there was a reason, the President would then go back and seek permission from Congress to hold the aid.

So let me repeat that -- if there were a reason to hold it, the President -- and President Trump has done this in the past, under legitimate processes, as has President Obama and prior presidents -- would go back to Congress under predescribed processes and make sure that they're not violating the Impoundment Control Act and seek permission to hold it. That did not happen.

Congress would then weigh on the request by either approving or denying the President's request and then unless Congress specifically approves the President's request, the aid must be made available. Of course, none of that happened.

In this instance, a hold was put in place -- we don't know exactly when because the President and his agencies have prevented us and his counsel have prevented us from getting that information -- but a hold was put in place, no reason was given.

In fact, the only one within the United States government who apparently knows why that hold was put in place is President's counsel, who tried to tell us last night why he thinks the hold was put in place but nobody else knows.

So yes, the answer is if there was a legitimate policy process put in place, there will be a lot of information about burden sharing, about corruption, but any of the other concerns to which we have no evidence.

And if burden sharing, to the last point of the question, was a concern then the person who should have been asked to discuss those concerns with the EU and our European partners would have been Ambassador Sondland because he is the United States Ambassador to the European Union.

And not once did President Trump go to Ambassador Sondland and say "discuss these issues with the EU and the Europeans, saying they need to provide more money."

Not once did that happen and it didn't happen because it wasn't the real concern. All of the evidence shows the President withheld taxpayer money, foreign aid to our partner at war to coerce them to start a political investigation to benefit his 2020 election campaign. That is what the evidence shows and that's why we are still here.

And there is one person that can provide additional information on that and that is Ambassador Bolton. And yes, it is still a good time to subpoena Ambassador Bolton.

ROBERTS: Thank you, Mr. Manager.

SEN. SUSAN COLLINS (R-ME): Mr. Chief Justice?

ROBERTS: The Senator from Maine?

COLLINS: I send a question to the desk on behalf of myself and senators Crapo, Brunt (ph) -- Blunt and Rubio.

ROBERTS: Thank you.

[15:25:00] The question from Senator Collins and the other senators for both parties -- "Are there legitimate circumstances under which a President could request a foreign country to investigate a U.S. citizen, including a political rival who is not under investigation by the U.S. government? If so, what are they and how do they apply to the present case?"

The House goes first.

SCHIFF: Mr. Chief Justice, Senator, it would be hard for me to contemplate circumstances where that would be appropriate, where it'd be appropriate for the President of the United States to seek a political investigation of an opponent.

One of the I think most important post-Watergate reforms was to divorce decisions about specific cases, specific prosecutions from the White House to the Justice Department, to build a wall. One of the many norms that has broken down in this presidency is that wall has been obliterated, where the President has affirmatively and aggressively sought to investigate his rivals.

I cannot conceive of circumstances where that is appropriate. It may be appropriate for the Justice Department acting independently and in good faith, to initiate an investigation. There is a process for doing that and we heard testimony about that.

You can make requests under the Mutual Legal Assistance Treaty, the MLAT process, when a foreign country has evidence involving a criminal case involving a U.S. person. There is a legitimate way to -- to do that. That didn't happen here.

In fact, when Bill Barr's name was first revealed when that transcript was brought to light, the Justice Department immediately said "we have nothing to do with this -- we have nothing to do with this." Here, this particular domestic political errand was being done by the President's personal lawyer.

I wanted to just follow up also while I can, Senator, on my colleague's comments in terms of mixed motives. If you conclude the President acted with mixed motives, some of them corrupt and forbidden, some of them legitimate -- you should vote to convict. That principle is deeply rooted in our legal tradition. It is commonplace in civil and criminal law going back centuries.

For example, in describing the standard for corrupt motive for obstruction, the 7th Circuit rejected any requirement that a defendant's only or even main purpose was to obstruct the due (ph) administration of justice. Instead, the court explained a defendant is guilty if his motives included any corrupt forbidden goals.

That case, the United States v. Cueto, which I cited earlier, is not only relevant here but that case was argued by Professor Dershowitz, and he lost. He made the argument he's made and the president's lawyers have made today. They lost that case, and for a good reason. It's contrary to the history of our legal traditions. If someone -- and this is -- the founders were concerned, for example, that a president might be charged with bribing members of the Electoral College.

PHILBIN: Mr. Chief Justice, Senators, thank you for that question.

I'd like to start by pointing out that the question sort of assumes that there is a request for an investigation in a foreign country of a United States person. I'd just like to bring it back, though, here, to the transcript of the July 25th call, where President Trump didn't ask President Zelensky specifically for an investigation, or an investigation into Vice President Biden or his son Hunter. I mean, there's a lot of loose talk and sort of shorthand reference to it that way.

But what he refers to is "the incident" in which the prosecutor was fired. And the first thing that he says, in that whole exchange, is talking about the prosecutor being fired. And he says it sounds horrible to him, and the situation with Burisma.

And so -- and all the president says is, "so, if you can look into it, it sounds horrible," it sounds like a bad situation. That's not calling for an investigation necessarily into Vice President Biden or his son, but the situation in which the prosecutor had been fired, which affected anti-corruption efforts in the Ukraine.

And President Zelensky responded by saying, "The issue of the investigation of the case is actually the issue of making sure to restore the honesty, so we will take care of that."

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