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President Trump's Defense Team Delivers Their Closing Arguments. Aired 1-1:30p ET

Aired February 03, 2020 - 13:00   ET

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

[13:00:00]

KENNETH STARR, ATTORNEY TO PRESIDENT DONALD TRUMP: Compare and contrast the thoroughness of that committee in the age of Nixon, its thoroughness in the age of Clinton with all of its divisiveness, with then the committee in this proceeding.

A question to be asked: Did the House Judiciary Committee rush to judgment in fashioning the articles of impeachment? Did it carefully gather the facts, assess the facts before it concluded, we need nothing more than the panel of very distinguished professors and the splendid presentations by both the majority counsel and the minority counsel?

We asked them questions, the Republicans asked them questions. We heard their answers. We're ready to vote, we're ready to try this case in the high court of impeachment.

What was being said in the sounds of silence was this: We don't have time to follow the rules. We won't even allow the House Judiciary minority members, who have been beseeching us, time and again, to have their day, just one day, to call their witnesses. Oh, yes, that is expressly provided for in the rules. We'll break those rules. That's not liberty and justice for all.

The great political scientist of yesteryear, Richard Neustadt of Columbia, observed that the power of the president is ultimately the power to persuade. Oh, yes, the commander-in-chief, and, yes, charged with the conduct and authority to guide the nation's foreign relations; but, ultimately, it's the power to persuade.

I suggest to you that so, too, the House's sole power to impeach is likewise ultimately a power to persuade, over in the House. A question to be asked: In the fast-track impeachment process in the House of Representatives, did the House majority persuade the American people? Not just partisans. Rather, did the House's case win over the overwhelming majority, a consensus of the American people?

The question fairly to be asked: Will I cast my vote to convict and remove the president of the United States when not a single member of the president's party, the party of Lincoln, was persuaded at any time in the process?

In contrast -- and when I was here last week -- I noted for the record of these proceedings, that in the Nixon impeachment, the House vote to authorize the impeachment inquiry was 410 to four. In the Clinton impeachment -- divisive, controversial -- 31 Democrats voted in favor of the impeachment inquiry.

Here, of course, and in sharp contrast, the answer is none. It is said that we live in highly -- and perhaps hopelessly -- partisan times; it is said that no one is open to persuasion any more. They're getting their news entirely from their favorite media platform, and that platform of choice is fatally deterministic.

Well, at least the decision of decision-makers under oath, who are bound by sacred duty by oath or affirmation, to do impartial justice, leaves the platforms out, those modern-day intermediaries and shapers of thought, of expression, of opinion are outside these walls, where you serve.

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Finally, does what is before this court -- very energetically described by the able House managers -- but fairly viewed, rise to the level of a high crime or a misdemeanor? One so grave and so serious to bring about the profound disruption of the Article II branch, the disruption of the government?

And to tell the American people -- and yes, I will say, this is the way it would be read -- your vote in the last election is hereby declared null and void. And by the way, we're not going to allow you, the American people, to sit in judgment on this president and his record in November.

That is neither freedom nor is it justice. It's certainly not consistent with the most basic freedom of We the People, the freedom to vote.

I thank the court, I yield to my colleague, Mr. Purpura.

MIKE PURPURA, DEPUTY WHITE HOUSE COUNSEL: Mr. Chief Justice.

Members of the Senate, good afternoon. I will be relatively brief today, and will not repeat the arguments that we've made throughout, but I just want to highlight a few things.

There are a number of reasons why the articles of impeachment are deficient and must fail. My colleagues have spent the past week describing those reasons. In my time today, I'd like to review just a few core facts, which, again, remember, are all drawn from the record on which the president was impeached in the House, and that the House managers brought to this body in support of the president's removal.

First, the president did not condition security assistance or a meeting on anything during the July 25 call. In fact, both Ambassador Yovanovitch and Mr. Tim Morrison confirmed that the Javelin missiles and the security assistance were completely unrelated.

The concerns that Lieutenant Colonel Vindman expressed on the call were by his own words and admission "based on deep policy concerns." And remember, as we said before and everyone in this room knows, the president sets the foreign policy, the unelected staff implements the foreign policy.

Others on the call, including Lieutenant Colonel Vindman's boss, Mr. Morrison, as well as Lieutenant General Keith Kellogg had no such concerns and have stated that they heard nothing improper, unlawful or otherwise troubling on the July 25 call.

Second, President Zelensky and his top advisors agree that there was nothing wrong with the July 25 call and that they felt no pressure from President Trump. President Zelensky said that the call was "good, normal" and no one pushed him.

President Zelensky's top advisor, Andriy Yermak, was asked if he had ever felt there was a connection between the U.S. military aid and the request for investigations. He was adamant that he never had that feeling and we did not have the feeling that this aid was connected to any one specific issue.

Several other top Ukrainian officials have said the same, both publicly and in readouts of the July 25 call to Ambassador Taylor, Ambassador Volker and others.

Third, President Zelensky and the highest levels of the Ukrainian government did not learn of the pause until August 28th, 2019, more than a month after the July 25 call between President Trump and President Zelensky.

President Zelensky himself said "I had no idea the military aid was held up. When I did find out, I raised it with Pence at a meeting in Warsaw," referring to the vice president. The meeting in Warsaw took place three days after the Politico article was published on September 1st, 2019.

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Mr. Yermak likewise said that "President Zelensky and his key advisors learned of the pause only from the August 28 Politico article." And just last week, while we were in this trial, Oleksandr Danylyuk, former Chairman of Ukraine's National Security and Defense Council, said he first found out that the U.S. was withholding aid to Ukraine by reading Politico's article published August 28.

Mr. Danylyuk also said there was panic within the Zelensky administration when they found out about the hold from the Politico article, indicating that the highest levels of the administration were unaware of the pause until the article was published.

And if that's not enough, Ambassador Volker, Ambassador Taylor, Deputy Assistant Secretary of State George Kent and Mr. Morrison all also testified that the Ukrainians did not know about the security hold until the Politico article on August 28.

And we showed you the text message from Mr. Yermak to Ambassador Volker just hours after the Politico article was published. You also remember all of the high level bilateral meetings at which the Ukrainians did not bring up the pause in the security assistance because they did not know about it.

When they did find out on August 28, they raised the issue at the very next meeting in Warsaw on September 1st. This is a really important point -- as Ambassador Volker testified, if the Ukrainians didn't know about the pause then there was no leverage implied.

That's why the House managers have kept claiming and continued to claim throughout the trial that the high level Ukrainians somehow knew about the pause before late August. That's inaccurate.

We pointed out that Laura Cooper, on whom they rely, testified that she didn't really know what the e-mails she saw relating to security assistance were about. We told you that Catherine Croft, who worked for Ambassador Volker -- who worked for Ambassador Volker, couldn't remember the specifics of when she believed the Ukrainian embassy learned of the pause and that she didn't remember when news of the pause became public.

The House managers also mentioned Lieutenant Colonel Vindman, who claimed vague recollections of fielding unspecified queries about aid from Ukrainians in the mid-August timeframe. But Lieutenant Colonel Vindman ultimately agreed that the Ukrainians first learned about the hold on security assistance "probably around when the first stories emerged in the open source."

And former Deputy Foreign Minister Olena Zerkal's claim that she knew about the pause in July is inconsistent with statements by her boss, the then-Foreign Minister of Ukraine, who said that he "learned of the pause from a news article, of which the August 28 Politico article was the first," as well as those of all of the other top level Ukrainian officials I've mentioned, the testimony of the top U.S. diplomats responsible for Ukraine and the many intervening meetings at which the pause was not mentioned.

Fourth, none of the House witnesses testified that President Trump ever said there was any linkage between security assistance and investigations. When Ambassador Sondland asked the president on approximately September 9, the president told him "I want nothing, I want nothing, I want no quid pro quo."

Before he asked the president, Ambassador Sondland presumed and told Ambassador Taylor and Mr. Morrison that there was a connection between the security assistance and the investigations. That was before he asked the president directly.

Even earlier, on August 31, Senator Ron Johnson asked the president if there was any connection between security assistance and investigations. the president answered "no way, I would never do that, who told you that?"

Undersecretary of State David Hale, Mr. Kent and Ambassador Volker all testified that they were not aware of any connection whatsoever between security assistance and investigations. The House managers repeatedly point to a statement by Acting Chief of Staff Mick Mulvaney during an October press conference. When it became clear that the media was misinterpreting his comments or that he had simply misspoken, Mr. Mulvaney promptly, on the very day of the press conference, issued a written statement making clear that there was no quid pro quo.

Here's his statement -- "let me be clear, there was absolutely no quid pro quo between Ukrainian military aid and any investigation into the 2016 election. the president never told me to withhold any money until the Ukrainians did anything related to the server. The only reasons we were holding the money was because of concern about lack of support from other nations and concerns over corruption."

Accordingly, Mr. Mulvaney, in no way confirmed the link between the pause in security assistance and investigations.

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A garbled or misinterpreted statement or a mistaken statement that is promptly clarified on the same day as the original statement is not the kind of reliable evidence that would lead to the removal of the president of the United States from office.

And in any event, Mr. Mulvaney also stated during the press conference itself that "the money held up had absolutely nothing to do with Biden." Now, why does this all matter? I think Senator Romney really got to the heart of this issue on Thursday evening, when he asked both parties whether there is any evidence that President Trump directed anyone to tell the Ukrainians that security assistance was being held up on the condition of an investigation into the Bidens, that was the question. There is no such evidence.

Fifth, the security assistance was released when the president's concerns with burden-sharing and corruption were addressed by a number of people, including some in this chamber today, without Ukraine ever announcing or undertaking any investigations.

You have heard, repeatedly, that no one in the administration knew why the security assistance was paused. That's not true. Two of the House managers' own witnesses testified regarding the reason for the pause.

As Mr. Morrison testified, in a July meeting attended by officials throughout the executive branch agencies, the reason provided for the pause by a representative from the Office of Management and Budget was that the president was concerned about corruption in Ukraine and he wanted to make sure that Ukraine was doing enough to manage that corruption.

Further, according to Mark Sandy, deputy associate director for National Security at the Office of Management and Budget, we had received requests for additional information on what other countries were contributing to Ukraine.

We told you about the work that was being done to monitor and collect information about anti-corruption reforms in Ukraine and burden- sharing during the summer pause. We told you about how, when President Zelensky asked Vice President Pence in Poland about the pause, Vice President Pence asked -- according to Jennifer Williams -- what the status of his reform efforts were that we -- he could then convey back to the president, and also wanting to hear if there was more that European countries could do to support Ukraine.

Mr. Morrison, who was actually at the Warsaw meeting, testified similarly that Vice President Pence delivered a message about anti- corruption and burden-sharing.

We told you about the September 11 call with President Trump, Senator Portman and Vice President Pence. Mr. Morrison testified, the entire process, culminating in the September 11 call, gave the president the confidence he needed to approve the release of the security sector assistance, all without any investigations being announced.

Now, I've focused so far on the House managers' allegation that there was a quid pro quo for the security assistance. Let me turn very briefly to the claim that a presidential meeting was also conditioned on investigations.

Remember, by the end of the July 25 call, President Trump had personally invited President Zelensky to meet three times: twice by phone, once in a letter, without any preconditions. You heard that the White House was working behind the scenes to schedule the meeting, and how difficult scheduling those meetings can be.

The two presidents planned to meet in Warsaw, just as President Zelensky requested on the July 25 call. President Trump had to cancel at the last minute due to Hurricane Dorian; President Trump and President Zelensky then met, three weeks later, in New York, without Ukraine announcing any investigations.

Finally, one thing that the House managers' witnesses agreed upon was that President Trump has strengthened the relationship between the U.S. and Ukraine, and that he has been a better friend to Ukraine and stronger opponent of Russian aggression than President Obama.

Most notably, Ambassador Taylor, Ambassador Volker and Ambassador Yovanovitch all testified that President Trump's reversal of his predecessor's refusal to send the Ukrainians lethal aid was a meaningful and significant policy development and improvement for which President Trump deserves credit.

Just last week, Ambassador Volker, who knows more about U.S.-Ukraine relationships than nearly if not everyone, published a piece in Foreign Policy magazine. I'd like to read you an excerpt.

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"Beginning in mid-2017 and continuing until the impeachment investigation began in September 2019, U.S. policy toward Ukraine was strong, consistent and enjoyed support across the administration, bipartisan support in Congress, and support among U.S. allies and in Ukraine itself." The Trump administration also coordinated Ukraine policy closely with allies in Europe and Canada, maintaining a united front against Russian aggression and in favor of Ukraine's democracy, reform, sovereignty, and territorial integrity. Ukraine policy is one of the few areas where U.S. and European policies have been in lockstep.

The administration lifted the Obama-era ban on the sale of lethal defensive arms to Ukraine, delivering, among other things, Javelin anti-tank missiles, Coast Guard cutters and anti-sniper systems.

Despite the recent furor over the pause in U.S. security assistance this past summer, the circumstances of which are the topic of impeachment hearings, U.S. defensive support for Ukraine has been and remains robust and more, according to Ambassador Volker.

"It is therefore a tragedy for both the United States and Ukraine that U.S. partisan politics, which have culminated in the ongoing impeachment process, have left Ukraine and its new reform-minded president Volodymyr Zelensky exposed and relatively isolated. The only one who benefits from this is Russian President Vladimir Putin."

Those are the words of Ambassador Volker. He was one of the House managers' key witnesses. He was the very first witness to testify in the House proceedings on October 3rd. And so I think it's fitting that he may be the last witness we hear from. In his parting words, Ambassador Volker admonishes that it is U.S. partisan politics, which have culminated in this impeachment process, that have imperiled Ukraine.

In sum, the House managers' case is not overwhelming and it is not undisputed. The House managers bear the very heavy burden of proof. They did not meet it. It's not because they didn't get the additional witnesses or documents that they failed to pursue. It's because their own witnesses have already offered substantial evidence undermining their case.

And importantly, as you have heard from Professor Dershowitz and from Mr. Philbin, the first article does not support or allege an impeachable offense regardless of any additional witnesses or documents.

Members of the Senate, it has been an incredible honor and privilege to speak to you in this chamber. I hope that what I've shown has been helpful to your understanding of the facts, and I respectfully ask you to vote to acquit the president of the wrongful charges against him.

I yield to Mr. Philbin.

PAT PHILBIN, DEPUTY COUNSEL TO PRESIDENT DONALD TRUMP: Mr. Chief Justice, members of the Senate, we've heard repeatedly throughout the past week and a half or so that the president is not above the law.

And I'd like to focus in my last remarks here on an equally important principle, which is that the House of Representatives also is not above the law in the way they conduct the impeachment proceedings and bring a matter here before the Senate. Because in very significant and important respects, they didn't follow the law.

From the outset, they began an impeachment inquiry here without a vote from the House, and therefore, without lawful authority delegated to any committees to begin an impeachment inquiry against the president of the United States. That was unprecedented in our history.

The speaker of the House does not have authority, by holding a press conference, to delegate the sole power of impeachment from the House to a committee, and the result was 23 totally unauthorized and invalid subpoenas were issued as a beginning of this impeachment inquiry.

After that, the House violated every principal in -- of due process and fundamental fairness in the way the hearings were conducted, and we've been through that. I'm not going to go through the details again.

But it's significant because denying the president the ability to be present, through counsel, to cross-examine witnesses and to present evidence fundamentally skewed the proceedings in the House of Representatives.

It left the president without the ability to have a fair proceeding and it meant -- it reflected the fact that those proceedings were not truly designed as a search for truth. We have procedural protections. We have the right of cross-examination as a mechanism for getting to the facts, and that was not present in the House of Representatives.

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And lastly, Manager Schiff, as an interested witness who had been involved in -- or at least, his staff -- in discussions with the whistleblower, then guided the factual inquiry in the House.

So why does all of this matter? It matters because the lack of the vote meant that there was no democratic accountability and no lawful authorization for the beginning of the process.

It meant that there were procedural defects that produced a record that this chamber can't rely on for any conclusion other than to reject the articles of impeachment and to acquit the president.

And it mattered because the president, in response to these -- these violations of the president's rights and to the failure to follow proper procedure, failure to follow the law, has rights of his own, rights of the executive branch to be asserted, and that's the president's response to the invalid subpoenas was that they're invalid, and we're not going to comply with them.

And the president asserted other rights of the executive branch. When there were subpoenas for his senior advisors to come and testify, along with virtually every president since Nixon, he asserted the principle of immunity of his senior advisors; that they could not be called to testify.

And the president asserted the defects in subpoenas that called for executive branch officials to testify without the presence of agency counsel, all established principles that have been asserted before.

Now, what did the House managers say in response? They accused the president, in their second article of impeachment, trying to assert obstruction, that this was unprecedented response, an unprecedented refusal to cooperate.

It was unprecedented that 23 subpoenas were issued in a presidential impeachment inquiry without valid authorization from the House. The president's response was to a totally unprecedented attempt by the House to do that which it had no authority to do.

They've asserted today and on other occasions that the president's legal arguments in response to these subpoenas -- they -- they've said that it's indiscriminate. There was just a blanket defiance.

I think I've shown that that wasn't true. There were three very specific legal rationales provided by the executive branch as to different defects in different subpoenas, and there were letters explaining those defects.

But there was no attempt by the House to attempt an accommodations process, even though the White House offered to engage in an accommodations process. There was no attempt by the House to use other mechanisms to resolve the differences with the executive branch. It was just straight to impeachment.

Now, they've asserted today and on other occasions that the president's counsel, that I and my colleagues have made bad faith legal arguments that are just window dressing. Now, in an ordinary court of law, one doesn't accuse opposing counsel of making bad faith arguments lightly, and if you make that accusation it has to be backed up with analysis. But there hasn't been analysis here; there's just been accusation.

When the president asserts the immunity of his senior advisors, that's a principle that's been asserted by virtually every president since Nixon. And let me read you what Attorney General Janet Reno, during the Clinton administration, said about this exact immunity.

She said that immediate advisors to the president are immune from being compelled to testify before Congress, and that, quote, "The immunity such advisors enjoy from testimonial compulsion by a congressional committee is absolute and may not be overborne by competing congressional interests," end quote.

And she went on to say, quote, "Compelling one of the president's immediate advisors to testify on a matter of executive decision-making would raise serious constitutional problems no matter what the assertion of congressional need," end quote.

Was that bad faith? Was Attorney General Reno asserting that principle in bad faith, and President Clinton?

President Obama asserted the same principle for his senior political advisor. Was that bad faith? Of course not. These are principles defending the separation of powers that presidents have asserted for decades. President Trump was defending the institutional interests of the office of the presidency in asserting the same principles here. That is vital for the continued operation of the separation of powers.

Now, House managers have also said that once the president asserted these defects in their subpoenas and resisted them, they had no time to do anything else. They had to just go straight to impeachment. They couldn't accommodate. They couldn't go through a contempt process. They couldn't litigate.

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