Transcript: Key Moments in January 29 Impeachment Trial Q&A Session

Key Q&A 1

Chief Justice: (00:01)
The senator’s question is directed to counsel for the President. Is it true the Trump Administration approved supplying Javelin anti-tank missiles to Ukraine? Is it also true this decision came on the heels of a nearly three-year debate in Washington over whether United States should provide lethal defense weapons to counter further Russian aggression in Europe? By comparison, did President Obama refuse to send weapons or other lethal military gear to Ukraine? Was this decision against the advice of his Defense Secretary and other key military leaders in his administration?

Patrick Philbin: (01:01)
Mr. Chief Justice, thank you Senators for the question. Yes. The Trump administration made the decision to provide Javelin anti-tank missiles and there was a significant debate about that for some time. Authorization had been granted by Congress and many of you voted for that statutory authorization during the Obama administration to provide lethal assistance to Ukraine. But the Obama administration decided not to provide that.

It was only the Trump administration that made that lethal assistance available. And there was a significant amount of testimony in the House proceedings that President Trump’s policy towards Ukraine was actually stronger. Ambassador Volker explained that America’s policy toward Ukraine has been strengthened under President Trump. And at each step along the , in the decisions that got to the Javelin missiles being provided, was made by President Trump.

It is something that has substantially strengthened our relationship with Ukraine and strengthened their ability to resist Russian aggression. Ambassador Yovanovitch said that President Trump’s decision to provide lethal weapons meant that our policy actually got stronger over the last three years and she called it very significant.

Another point to make in relation to this is again the pause, the temporary pause that took place over the summer, is something that the Ukrainian Deputy Defense Minister described as being so short that they didn’t even notice it. So President Trump’s policies across the board have been stronger than the prior administrations in providing defensive capability, lethal defensive capability, to the Ukrainians. And I think that that’s significant. The specific part of the question, Senators, whether it was contrary to the advice of the President’s Defense Secretary and others, I believe that that is accurate. It was against the advice of the Secretary of Defense. It was President Trump’s decision to provide this lethal assistance. And that has been made public in the past. Thank you.

Thank you, counsel.

Key Q&A 2

Alan Dershowitz: (00:00)
Every public official that I know believes that his election is in the public interest and mostly you’re right, your election is in the public interest. And if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment. I quoted President Lincoln. When President Lincoln told general Sherman to let the troops go to Indiana so that they can vote for the Republican party, let’s assume the president was running at that point and it was in his electoral interest to have these soldiers, put at risk the lives of many, many other soldiers who would be left without their company. Would that be an unlawful quid pro quo? No, because the president, A, believed it was in the national interest, but B, he believed that his own election was essential to victory in the Civil War. Every president believes that. That’s why it’s so dangerous to try to psychoanalyze a president, to try to get into the intricacies of the human mind. Everybody has mixed motives, and for there to be a constitutional impeachment based on mixed motives, would permit almost any president to be impeached.

Key Q&A 3

The question for counsel to the President, directed to Professor Dershowitz by Senator Wicker is this, Professor Dershowitz, you stated during your presentation that the house grounds for impeachment amount to the “most dangerous precedent”, what specific danger does this impeachment pose to our republic to its citizens?

Thank you senators. I came of age during the period of McCarthyism. I then became a young professor during the division of time of the Vietnam War. I, as all of you lived through the division during the Iraq war and 9/11 and following 9/11. I have never lived at a more divisive time in the United States of America than today. Families are broken up. Friends don’t speak to each other. Dialogue has disappeared on university campuses. We live in extraordinarily dangerous times. I’m not suggesting that the impeachment decision by the house has brought that on us. Perhaps it’s merely a symptom of a terrific problem that we have facing us and likely to face us in the future. I think it is the responsibility of this mature Senate, whose job it is to look forward, whose job it is to assure our future, to make sure the divisions don’t grow even greater.

We’re a President of the United States to be removed today, it would pose existential dangers to our ability to live together as a people. The decision would not be accepted by many Americans. Nixon’s decision was accepted, easily accepted. I think that decisions that would have been made in other cases would be accepted. This one would not be easily accepted because it’s such a divided country, such a divided time. And if the precedent is established that a President can be removed on the basis of such vague and recurring and open ended and targeted terms as abusive power. 40 Presidents have been accused of abusive power. I bet you all of them have. We just don’t know some of the charges against some of them, but we have documentation on so many. If that criteria were to be used, this will just be the beginning of a recurring weaponization of impeachment, whenever one house is controlled by one party and the presidency is controlled by another party.

Now the house manager say there are dangers of not impeaching, but those dangers can be eliminated in eight months. If you really feel there’s a strong case, then campaign against the president. But the danger of impeachment will last my lifetime, your lifetime, and the lifetime of our children. So I urge you respectfully, you are the guardians of our future. Follow the constraints of the constitution. Do not allow impeachment to become a normalized weapon in the word of one of the framers. Make sure that it’s reserved only for the most extraordinary of cases like that of Richard Nixon. This case does not meet those criteria. Thank you.

Thank you, counsel.

Key Q&A 4

The house of representatives is now in possession of a tape of President Trump saying of ambassador Marie Yovanovitch, “get rid of her, get her out tomorrow. I don’t care. Get her out tomorrow. Take her out. Okay, do it.” President Trump gave this order to Lev Parnas and Igor Fruman, two men who carried out Trump’s pressure campaign in Ukraine at the direction of Rudy Giuliani. Does the discovery of this tape suggest that if the Senate does not pursue all relevant evidence, including witnesses and documents, that new evidence will continue to come to light after the Senate renders a verdict?

Adam Schiff: (00:41)
The answer is yes. What we have seen really over the last several weeks since the passage of the articles in the house of representatives is every week indeed, sometimes every day, there is new information coming to light. We know there’s going to be new information coming to light on March 17th when the Bolton book comes out. That is if the NSC isn’t successful in redacting it or preventing much of its publication. And on that issue, I do want to mention one other thing in response to the question about the Bolton manuscript and what did the white house lawyers know because I listened very carefully to the answer of that question and maybe listen more carefully than I did. What I thought I heard them say the answer that question, what did they know about the manuscript and when did they know it? Their statement was very precisely worded. The NSC unit reviewing the book did not share the manuscript.

Well that’s a different question than whether the white house lawyers found out what’s in it because you don’t have to circulate the manuscript and have someone walk over to the White House and say, “you do not want John Bolton to testify. Let me tell you, you do not want John Bolton to testify. You don’t need to read his manuscript because I can tell you what’s in it.” So the deny was a very carefully worded one. I don’t know what the White House lawyers knew and when they knew it, but they did represent to you repeatedly that the president never told a witness that he was freezing the aid to get Ukraine to do these investigations. And we know that’s not true.

You know that from the witnesses we’ve already heard from. But we also know at least, if the reporting is correct and you should find out if it is, that John Bolton tells a very different story. So there are going to continue to be revelations and members of this body of both sides of the aisle are going to have to answer a question each time it does. Why didn’t want to know that when it would have helped inform your decision?

In every other trial in the land you call witnesses to find out what you can. Again, we’re not a court of appeals here we are the trial court. We’re not confined to the record below, there is no below. Counsel says in answer to the senators question about whether Donald Trump ever brought up the Hunter Biden problem with President Prochenko in the past and says, “well, we’re confined to the record before us.” You’re not confined to the record in the house, nor is the president. The president could call witnesses if they existed. There’s nothing to prevent them from saying, “as a matter of fact, tomorrow we’re going to call such and such and they’re going to testify that indeed Donald Trump brought up Hunter Biden to President Prochenko.” There’s nothing prohibiting them from doing that.

But the end of the day we are going to continue to see new evidence come out all the time. But among the most significant evidence, we know what that’s going to be. And you know the effort to suggest that because this president was stronger on javelins than his predecessor, when we know from the July 25th call, the moment that Zelensky brings up the javelins, what’s the very next thing the president says? He wants a favor.

The question is why did he stop the aide? 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 the land of all the gin joints in all the land in Ukraine, that it was just a Hunter Biden walking into this one, that was the reason why that he was interested in Barisma, was just a coincidence that involved the 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 it can form your decision and not later.

Key Q&A 5

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. Howitzer said in 1998 that an impeachable offense, “Certainly doesn’t have to be a crime.” 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? It’s counsel for the president’s turn.

What happened since 1998 is that I studied more, did more research, read more documents, and like any academic, altered my views. That’s what happens. That’s what professors ought to do. I keep reading more and I keep writing more and I keep refining my views. In 1998 the issue before this Senate was not whether a crime was required. It was whether the crime that Clinton was charged with was a high crime. When this impeachment began,. The issue was whether a crime is required. Actually two years earlier in a book and then an op-ed, I concluded, not on partisan grounds, on completely academic grounds that you could not impeach for abuse of power and that a technical crime was not required but criminal like behavior was required. I stand by that view.

The framers rejected maladministration. That was a prime criteria for impeachment under British law. Remember too the British never impeached prime ministers. They only impeached middle level and low level people. So the framers didn’t want to adopt the British approach. They rejected it by rejecting mal administration. What’s a metaphor or what’s a synonym for maladministration? Abuse of power. When they rejected maladministration, they rejected abuse of power.

Mr. Congressman Schiff asked a rhetorical question. Can a president engage in abusive power with impunity? In my tradition, we answer questions with questions. So I would throw the question back. Can a president engage in maladministration with impunity? That’s a question you might’ve asked James Madison had you been at the constitutional convention. He would say, “No, a president can’t engage in that with impunity, but it’s not an impeachable crime.” Maladministration is not impeachable, and abuse of power is not impeachable. The issue is not whether a crime is required. The issue is whether abuse of power is a permissible constitutional criteria. The answer from the history is clearly, unequivocally no. If that had ever been put to the framers, they would have rejected it with the same certainty they rejected maladministration.

Thank you.

Jerry Nadler: (03:29)
[inaudible 00:03:29] abuse of power. The first draft of the constitution convention said treason of bribery. That was rejected because it wasn’t inclusive enough. Mason proposed maladministration, found too vague. So they said high crimes and misdemeanors. That was a well understood term in English law, is well understood term in the Warren Hastings impeachment going on in England right then. It meant primarily abuse of power. That is the main meaning of high crimes and misdemeanor. Charles Pinckney said, “Those who behave amiss or betray their public trust [inaudible 00:04:13] misbehaves. I quoted Justice Story the other day. Every impeachment in American history has been for abuse of power in one form or another. The idea that you have to have a crime. Bribery is right there in the constitution. Treason, bribery, or other crimes. Bribery was not made a statutory crime until 1837, so it couldn’t have been impeachment.

The fact of the matter is that crimes and impeachment are two different things. Impeachments are not punishments for crimes. Impeachments are protections of the Republic against the president who would abuse his power, who would aggrandize power, who would threaten liberty, who would threaten the separation of powers, who would threaten the powers of the Congress, who would try to arrogate power to himself. That is why punishment upon conviction for impeachment only goes through removal from office. Can’t put him in jail as you could for a crime. You can’t fine him as you could for a crime. They are two different things. An impeachable offense need not be a crime, and a crime need not be an impeachable offense. Two completely different tests understood that way throughout American history and by all scholars. All scholars in our history except for Mr. Howitzer.

Thank you, Mr. Manager.

Key Q&A 6

The question to both parties and House managers will go first. What did National Security Advisor John Bolton mean when he referenced, “Whatever drug deal Sondland and Mulvaney are cooking up on this,” and did he ever raise that issue in any meeting with President Trump?

Mr. Justice, Senators, when John Bolton and this is according to Doctor Hill’s testimony, brought up the drug deal, it was in the context of a July 10th meeting at the White House.

There were two meetings that day. There was a meeting that Ambassador Bolton was present for and then there was a follow on meeting after Ambassador Bolton abruptly ended the first meeting. In the first meeting, the Ukrainians naturally wanted to raise the topic of getting the White House meeting that President Zelensky so desperately wanted and after raising the issue at some point, Ambassador Sondland said, “No, no. We’ve got a deal. They’ll get the meeting once they announce the investigations,” and this is the point where Ambassador Bolton stiffened. You can look up Doctor Hill’s exact words, I’m paraphrasing here, but this is the point where Ambassador Bolton stiffens and he ends the meeting.

Hill then goes, follows Sondland and the delegation into another part of the White House where the meeting continues between the American delegation and the Ukrainian delegation and there it’s even more explicit because in that second meeting Sondland says, brings up the Bidens specifically.

Hill then goes to talk to Bolton and informs him what’s taken place in the [inaudible 00:01:58] meeting and Bolton’s response is, “Go talk to the lawyers and let them know, I don’t want to be part of this drug deal that Sondland and Mulvaney have got cooking up.”

So at that point, that specific conversation is a reference to the quid pro quo over the White House meeting. Now we know of course from other documents and testimony about the quid pro quo about the White House meeting and all the efforts by Giuliani to make sure that the specific investigations are mentioned in order to make this happen.

But don’t take my word for it. We can bring in John Bolton and ask him exactly what he was referring to when he described the drug deal. Now did Bolton describe and discuss this drug deal with the president? Well, it certainly appears from what we know about this manuscript, that they did talk about the freeze on aid and whether John Bolton understood and at what point he understood that the drug deal was even bigger and more pernicious than he thought, that it involved not just the meeting but involved the military aid, there’s one way to find out and I went out of this in terms of Mr. Mulvaney.

[inaudible 00:03:11] No, maybe I’ll add it later.

Speaker 3: (03:18)
Mr. Chief Justice.

Two and a half minutes.

Thank you, Mr. Chief Justice. Thank you Senator for the question. The question asks about what Ambassador Bolton meant in a comment that is reported is hearsay by someone else saying what he supposedly said.

What we know is that there are conflicting accounts of the July 10th meeting at the White House. Doctor Hill says that she heard Ambassador Sondland one say one thing. He denies that he said that. Dr. Hill says she went and talked to Ambassador Bolton and Bolton said something to her about what was said in the meeting where he wasn’t there, but he was saying something about it, calling it a drug deal and what he meant by that, I’m not going to speculate about it. It’s a hearsay report of something that he said about a meeting that he wasn’t in, characterizing it some way and I’m not going to speculate about what he meant by that.

Key Q&A 7

Senator Sanders asks the house managers, Republican lawyers have stated on several occasions that two people, Senator Johnson and Ambassador Sondland were told directly by President Trump that there was no quid pro quo in terms of holding back Ukraine aid in exchange for an investigation into the Bidens. Given the media has documented President Trump’s thousands of lies, while in office. More than 16,200 as of January 20th, why should we be expected to believe that anything president Trump says has credibility?

Well, I’m not quite sure where to begin with that question except to say that if every defendant in a trial could be exonerated just by denying the crime, there would be no trial. It doesn’t work that way. I think it’s telling that when Ambassador Sondland spoke with President Trump, the first words out of his mouth according to Sondland were no quid pro quo. That’s the kind of thing you do. You blurt out when you’ve been caught in the act and you say, “It wasn’t me, I didn’t do it.” But even then the president couldn’t help himself because the other half of that conversation was no quid pro quo, but Zelensky needs to go to the mic and what’s more, he should want to. No quid pro quo, but quid pro quo.

Now this reminds me of some that came up earlier. Why would the president, when he’s on the call on July 25th knowing that there are other people listening, why on earth would the president engage in this kind of shakedown with others within earshot? And I think this question comes up in almost every criminal trial. Why would the defendant do that? And sometimes it’s very hard to fathom. Sometimes just people make mistakes. But I think in the case of this president, he truly believes that he’s above the law. He truly believes that he’s above the law. It doesn’t matter who’s listening, it doesn’t matter who’s listening. If it’s good for him, this is I guess a version of the Dershowitz argument. If it’s good for him, it’s good for the state because he is the state. If it helps his reelection, it’s good for America and whatever means he needs to effectuate this election, whether it’s withholding military aid or what have you.

As long as it helps him get elected. Well, it’s good for America because he is the state. This is why I think he is so irate when people come forward and blow the whistle, not just the whistle blower, but people like John Bolton or General Kelly. And you might ask the question, why do so many people who leave this administration, why do they walk away from this president with such a conviction that he is undermining our security? That you cannot believe what he says. I mean, think about this. The president’s now former chief of staff General Kelly doesn’t believe the President of the United States. He believes John Bolton. I mean, can everybody be disgruntled? Can it all be a matter of bias? I think we know the answer. I think we know the answer.

I mean, how do you believe a president that the Washington Post has documented so many false statements? The short answer is you can’t, and I remember early in this presidency, many of us talked about how once as president, you lose your credibility, once as president, your country or your friends or allies around the world cannot rely on your word. Just how destructive and dangerous it is to the country. And so we can’t accept the denial. It’s a false denial.

And indeed, if you look at that Wall Street Journal article that Senator Johnson was interviewed in when he had that conversation with Sondland and had that sinking feeling because he didn’t want those two things tied together. Everyone understood they were tied together. It was as simple as two plus two equals four. So can you rely on a false exculpatory? You can’t with this president any more than you can with any other accused. And probably given the president’s track record a lot less than other accused. But at the end of the day we have people with firsthand knowledge. You don’t have to rely on his false exculpatory. You don’t have to rely on Mick Mulvaney is recanting what you all saw so graphically on TV. How does someone who say without a doubt, this was a factor. This is why he did it.

And by the way, Alan Dershowitz lost a criminal case in which he argued that if a corrupt motive was only part of the motive, you can’t convict. And the court said, “Oh yes you can.” If a corrupt motive is any part of it, you can convict. So he’s lost that argument before he makes that argument again before this court. It shouldn’t be any more availing here than it was there. The end of the day though, there’s no more interested party here than the President of the United States. And I think we have seen, he will say whatever he believes suits his interest. Let’s instead rely on the evidence and rely on others. And one is just a subpoena away.

Key Q&A 8

Senator Graham and Senator Cruz pose this question for the House Managers. In Mr Schiffs hypothetical, if President Obama had evidence that Mitt Romney’s son was being paid $1 million per year by a corrupt Russian company, and Mitt Romney had acted to benefit that company, would Obama have authority to ask that that potential corruption be investigated?

Well, first of all, the hypothetical is a bit off because it presumes that in that hypothetical that President Obama was acting corruptly or there was evidence he was acting corruptly with respect to his son. But none the less, let’s take your hypothetical on its terms. Would it have been impeachable if Barack Obama had tried to get [Medvedev 00:01:02] to do an investigation of Mitt Romney, whether it was justified or unjustified. The reality is, for a President to withhold military aid from an ally, or in the hypothetical to withhold it to benefit an adversary, to target their political opponent is wrong and corrupt. Period. End of story.

And if you allow a President to rationalize that conduct, rationalize jeopardizing the nation security to benefit himself because he believes that his opponent should be investigated by a foreign power, that is impeachable. Now, if you have a legitimate reason to think that any US person has committed an offense, there are legitimate ways to have an investigation conducted.

There are legitimate ways to have the Justice Department conduct an investigation. I would suggest to you that for a President to turn to his Justice Department and say, “I want you to investigate my political rival,” taints whatever investigation they do.

Presidents should not be in the business of asking even their own Justice Department to investigate their rivals. The Justice Department ought to have some independence from the political desires of the President. And one of the deeply troubling circumstances of the current presidency is you do have a President of the United States speaking quite openly, urging his Justice Department to investigate his perceived enemies. That should not take place either. But under no circumstances do you go outside of your own legitimate law enforcement process to ask a foreign power to investigate your rival, whether you think there’s cause or you don’t think there’s cause. And you certainly don’t invite that foreign power to try to influence an election to your benefit.

It’s remarkable to me that we even have to have this conversation. I mean, our own FBI Director has made it abundantly clear, and it shouldn’t require an FBI Director to say this, that if we were approached with an offer of foreign help, we should turn it down. We should of course certainly not solicit a foreign country to intervene in our election. And whether we think there’s grounds or we don’t, the idea that we would hold our own country’s security hostage by withholding aid to a nation at war to either damage our ally or help our adversary because they will conduct an investigation into our opponent. I can’t imagine any circumstance where that’s justified. And I can’t imagine any circumstance where we would want to say the President of United States can target his rival, can solicit elicit foreign help in an election, can help him cheat, and that’s okay.

Because that will dramatically lower the bar for what we have a right to expect in the President of the United States, and that is they’re acting in our interests. So I would say it’s wrong for a President of the United States to be asking for political prosecutions by his own Justice Department. I would say it’s wrong for a President of the United States to ask a foreign power to engage in an investigation of his political rival.

But particularly where, as we have shown here, there is no merit to that investigation, is even more egregious. And you know there is no merit to it because he didn’t even want the investigation. And the more accurate parallel, Senator, would be if Barack Obama said, “I don’t even need you, Russia, to do the investigation, I just want you to announce it.” Because that betrays the fact there was no legitimate basis. Because the president didn’t even need the investigation done. He just wanted it announced. And there is no legitimate explanation for that except he wanted their help in cheating in the next election.

Speaker 3: (05:16)

Key Q&A 9

The question from Senator King is for both counsel to the President and the house managers. President Trump’s former Chief of Staff, General John Kelly has reportedly said, “I believe John Bolton” and suggests Bolton should testify saying, “If there are people that could contribute to this either innocence or guilt, I think they should be heard”. Do you agree with General Kelly that they should be heard? I think counsel for the President, it’s your turn to go first.

Jay Sekulow: (00:38)
Thank you Mr. Chief Justice, members of the Senate. This was a bit of a topic that I discussed yesterday and that was the information that came out in the New York Times piece about what is purportedly in a book by Ambassador Bolton. Now, as I said, the idea that a manuscript is not in the book, there’s not a quote from the manuscript in the book. This is a perception of what the statement might be. There have been very forceful statements, not just from the President but from the Attorney General, the Department of Justice stated that while the Department Justice has not reviewed Mr. Bolton’s manuscript, the New York Times account of this conversation grossly mischaracterizes what Attorney General Barr and Mr. Bolton discussed. There was no discussion of, and this again personal favors or undue influence on investigations nor did Attorney General Barr state that the President’s conversations with foreign leaders weren’t proper.

So again, that goes to just some of the allegations that were in the article. The Vice President said the same thing. He said, in every conversation with the President and Vice President in preparation for our trip to Poland, the President consistently expressed his frustration that the United States was bearing the lion’s share of responsibility. There’s also an interview that Ambassador Bolton had given, I think, in August about the conversation where he said it was a perfectly appropriate conversation. I think that information’s publicly available now.

So, again, to move that into a change in proceeding, so to speak. I think it is not correct. The evidence that has already been presented, a accusation that if you get into witnesses, I’ll do this very briefly, if we get down the road on the witness issues, let’s be clear. I certainly can’t dictate to this body. It should certainly not be, though, that the house managers get John Bolton and the President’s lawyers get no witnesses. We would expect if they’re going to get witnesses, we will get witnesses and those witnesses would then… But all of that, just to be clear, changes the nature and scope of the proceedings. They didn’t ask for it before.

Thank you, counsel.

Senator Justice, what’s the significance of the President’s former chief of staff saying that he believes John Bolton and implicitly does not believe the President that Bolton should testify? It’s really, at the end of the day, not whether I believe John Bolton or whether General Kelly believes John Bolton, but whether you believe John Bolton, whether you’ll have an opportunity to hear directly from John Bolton, whether you have the opportunity to evaluate his credibility for yourself.

Now, there are a few arguments made against this. Some are rather extraordinary. It would be unprecedented, the suggestion, I think, is to have witnesses in a trial. What an extraordinary idea. But as my colleagues have said, it would be extraordinary not to. This will be the first impeachment trial in history that involves no witnesses if you decide, you don’t want to hear from any, that you simply want to rely on what was investigated in the House. That would be unprecedented.

Yes, we should be able to call witnesses and yes, so should the President, relevant witnesses. Now, the President says that you can’t believe John Bolton and Mick Mulvaney says you can’t believe John Bolton. Well let the President call Mick Mulvaney, another relevant witness with firsthand information. If he’s willing to say publicly, not under oath, that Bolton is wrong, let him come and say that under oath. Yes, we’re not saying that just one side gets to call witnesses. Both sides get to call relevant witnesses.

Now, they also make the argument implicitly, this is going to take long, Senators, got to warn you. If you run a real trial, it’s going to require witnesses and that’s going to take time. I think the underlying threat, and I don’t mean this in a harsh way, but is we’re going to make this really time consuming. The deposition took place very quickly in the House. We have a perfectly good Chief Justice behind me that can rule an evidentiary issues.

What’s more, the President has waived and waived and waived any claim about national security here by talking about himself, by declassifying the call record. We’re not interested in asking John Bolton about Venezuela or other places or other countries, just Ukraine. If there’s any question about it, the Chief Justice can resolve these are relevant questions to the matter at hand. What you cannot do is use privilege to hide wrongdoing of an impeachable kind and character.


Key Q&A 10

The question from Senator Blumenthal and the other senators is for the House managers. It reads as follows, “Before the break, the President’s counsel stated that accepting mere information from a foreign source is not something that would violate campaign finance law and that it is not campaign interference to accept credible information from a foreign source about someone who is running for office. Under this view, acceptance of the kinds of propaganda disseminated by Russia in 2016, on Facebook and other social media platforms, using bots, fake accounts and other techniques to spread disinformation would be perfectly legal and inappropriate.” Excuse me. “Isn’t it true that accepting such a thing of value is in fact a violation of law and isn’t it true that it is one of the highest priorities of our intelligence community, including the CIA, NSA, DNI, and FBI to do everything possible to prevent such foreign interference or intervention in our elections?”

It is without question among the very highest priorities of our intelligence agencies, our law enforcement to prevent foreign interference in our election of the type and character that we saw in 2016. When Russia hacked the databases of the Democratic National Committee, the D triple C, when they began a campaign of leaking those documents. When it engaged in a massive and systemic social media campaign, our intel agencies and law enforcement had been devoting themselves to preventing a recurrence of that type of foreign interference. If I’m understanding counsel for the President correctly, and I think that I am, they’re saying that not only is that okay to willingly accept that, but the very allegation against the President that Bob Mueller spent two years investigating, didn’t amount to criminal conspiracy. That is, could he prove beyond a reasonable doubt the crime of conspiracy.

Again, we’re talking about something separate from collusion here. Although, my colleagues keep confusing the two. Bob Mueller didn’t address the issue of collusion. What he did address is whether he could prove the elements of criminal conspiracy and he found that he could not. But what counsel for the President is now saying is even if he could have, that’s okay. It’s now okay to criminally conspire with another country to get help in a presidential election. As long as the president believes, it would help his campaign and therefore it would help our country. That’s now okay. It’s okay to ask for that help. It’s okay to work with that power to get that help. That’s not okay. I mean, it’s been a remarkable evolution of the presidential defense. It began with, none of that stuff happened here. It began with, nothing to see here. It migrated to, okay, they did seek investigations of the President’s political rival.

And then it became okay those investigations were not sought by official channels to official policy, they were sought by the President’s lawyer in his personal capacity. And then it migrated to, okay, we acknowledge that while the President’s lawyer was conducting this personal political errand, the President withheld the money, but we think that’s okay. We’ve witnessed over the course of the last a few days and the long day today, a remarkable lowering of the bar to the point now where everything’s okay as long as the President believes it’s in his reelection interest. You could conspire with another country to get their help in your election, either by intervening on your behalf to help you or by intervening to hurt your opponent. And now we’re told that’s not only okay, but it’s beyond the reach of the Constitution. And why? Because abuse of power is not impeachable. Because if you say abuse of power’s impeachable well then you’re impeaching people, presidents for mere policy.

Well, that’s nonsense. They’re not the same thing. They’re not the same thing as Professor Turley has argued. They’re not the same thing as Bill Barr has argued. They’re not the same thing as Professor Dershowitz argued 21 years ago. And they’re not the same thing today. They’re just not. You can’t solicit foreign interference. And the fact that you’re unsuccessful in getting it doesn’t exonerate you. A failed scheme doesn’t make you innocent. If you take a hostage and you demand a ransom and the police are after you and you release the hostage before you get the money, it doesn’t make you innocent. It just makes you unsuccessful, an unsuccessful crook. But it doesn’t mitigate the harmful conduct.

And this body should not accept, nor should the American people accept the idea put out by the President’s lawyers today that it is perfectly fine, unimpeachable for a President of the United States to say, “Hey, Russia, or hey, Ukraine, or hey China, I want your help in my election because that’s the policy of the president.” We’re calling that policy now. It’s the policy of the president to demand foreign interference and withhold money from an ally at war unless they get it. That’s what they call policy. I’m sorry, that’s what I call corruption and they can dress it up and find legalese but corruption is still corruption.

Thank you Mr. Manager.

Key Q&A 11

Question is directed to counsel for the president. How does the non-criminal abusive power standard advanced by the house managers differ from maladministration and impeachment standard rejected by the framers? Where is the line between such an abusive power and a policy disagreement?

Thank you very much for that question because that question I think hits the key to the issue that’s before you. Today when the framers rejected maladministration and recall that it was introduced by Mason and rejected by Madison on the ground that it would turn our new Republic into a parliamentary democracy where a prime minister, in this case a president, can be removed at the pleasure of the legislature. Remember too that in Britain, impeachment was not used against the prime minister. All you needed was a vote of no confidence. It was used against lower level people.

And so maladministration was introduced by Mason. And Madison said, “No, it would turn us.” It was just too vague and too general. Now what is maladministration? If you look it up in the dictionary and you look up synonyms, the synonyms include abuse, corruption, misrule, dishonesty, misuse of office and misbehavior. Even professor Nicholas Buoy, a Harvard professor who was in favor of impeachment, so this is an admission against interest by him. He’s in favor of impeachment. He says, “Abusive power is the same as misconduct in office.” And he says that his research leads him to conclude that a crime is required.

By the way, the Congressman was just completely wrong when he said I’m the only scholar who supports this position in the 19th century, which is much closer in time to when the framers wrote Dean Dwight of the Columbia law school wrote that the weight of authority, by which he meant the weight of scholarly authority and the weight of judicial authority, this is 1867, the weight of authority is in favor of requiring a crime. Justice Curtis came to the same conclusion. Others have come to a similar conclusion. You asked what happened between 1998 and the current to change my mind, what happened between the 19th century and the 20th century to change the minds of so many scholars?

Let me tell you what happened. What happened is that the current president was impeached. If in fact, president Obama or president Hillary Clinton had been impeached, the weight of current scholarship would be clearly in favor of my position because these scholars do not pass the shoe on the other foot test. These scholars are influenced by their own bias, by their own politics, and their views should be taken with that in mind. They simply do not give objective assessments of the constitutional history.

Professor Tribe suddenly had a revelation himself. At the time when Clinton was impeached he said, “Oh, the law is clear. You cannot charge a president with a crime while he’s the sitting president.” Now we have a current president. Professor Tribe got woke, and with no apparent new research he came to the conclusion, oh, but this president can be charged while sitting in office. That’s not the kind of scholarship that should influence your decision. You can make your own decisions. Go back and read the debates and you will see that I am right, that the framers rejected vague, open-ended criteria, abusive power.

And what we had is the manager made a fundamental mistake again. She gave reasons why we have impeachment. Yes, we feared abuse of power. Yes, we feared criteria like maladministration. That was part of the reason. We feared incapacity. But none of those made it into the criteria because the framers had to strike a balance. Here are the reasons we need impeachment. Yes. Now, here are the reasons we fear giving Congress too much power, so we strike a balance. How did they strike it? Treason, a serious crime. Bribery, a serious crime. Or other high crimes and misdemeanors, crimes and misdemeanors akin to treason and bribery. That’s what the framers intended. They didn’t intend to give Congress a license to decide who to impeach and who not to impeach on partisan grounds.

I read you the list of 40 American presidents who had been accused of abuse of power. Should every one of them be impeached? Should every one of them have been removed from office? It’s too vague a term. Reject my argument about crime, reject it if you choose to. Do not reject my argument that abuse of power would destroy the impeachment criteria of the constitution and turn it in the words of one of the senators of the Johnson trial to make every president, every member of the Senate, every member of Congress be able to define itself from within their own bosom.

We heard from the other side that every Senator should decide whether you need proof beyond a reasonable doubt or proof by a preponderance. Now we hear that every Senator should [crosstalk 00:05:26] abuse of power.

Thank you, counsel.

Thank you, Chief Justice.

Thank you. Senator from Maryland.

Speaker 3: (05:32)
Chief Justice, I have a question on behalf of Senator Markey and myself that I send to the desk for the house managers.

The question is as follows. Supreme Court Justice Byron White in a concurring opinion in Nixon versus United States 1993 acknowledged that the Senate quote, “has very wide discretion in specifying impeachment trial procedures,” end quote, but stated that the Senate quote, “would abuse its discretion,” end quote. If it were to quote, “insist on a procedure that could not be deemed at trial by reasonable judges,” end quote. If the Senate does not allow for additional evidence and the testimony of key witnesses with firsthand knowledge of president Trump’s actions and intentions, would a reasonable judge conclude these proceedings constitute a constitutionally fair trial?

Speaker 6: (06:47)
I think the answer is yes. I don’t know that we need to look to the words of a prior justice to tell us that a trial without witnesses is not really a trial. It’s certainly not a fair trial. If the house moves forward with impeachment and comes before the Senate and wants to call witnesses and wants to make its case and is told thou shall not call witnesses, that’s not a fair trial. I think that the American people understand that without reading the case law. They go to jury duty themselves every year and they see the first thing that takes place after the jury is sworn in is the government makes its opening statement. The defense makes theirs. And then begins the calling of witnesses.

Speaker 6: (07:43)
I do want to take this opportunity to respond to professor Dershowitz’s argument while they’re fresh. You can say a lot of things about Alan Dershowitz. You cannot say he’s unprepared. He’s not unprepared today. He wasn’t unprepared 21 years ago. And to believe that he would not have read 21 years ago what Mason had to say, or Madison had to say, or Hamilton had to say, I’m sorry I don’t buy that. I think 21 years ago we understood that maladministration was rejected, but so was a provision that confined the impeachable offenses to treason and bribery alone was rejected. I think the Alan Dershowitz from 21 years ago understood that, yes, while you can’t impeach for a policy difference, you can impeach a president for abuse of power. That’s what he said 21 years ago.

Speaker 6: (08:35)
Nothing has changed since then. I don’t think you can write off the consensus of constitutional opinion by saying they’re all never Trumpers. All the constitutional law professors… In fact, let’s play a snippet from professor Turley who was in the house defending the president and see what he had to say recently.

Prof Turley: (08:57)
On abuse of power, in my view, it’s clear. You can impeach a president for abuse of power. You can impeach a president for non criminal conduct.

Speaker 6: (09:07)
Okay. Now we can’t argue plausibly that his position is owing to some political bias, right? I mean, just a few weeks ago, he was in the house arguing the case for my GOP colleagues that the president shouldn’t be impeached. Now he did say, well, if you could actually prove these things and you could prove, as indeed we have, that the president abused his power by conditioning military aid to help his reelection campaign. Yes. That is abuse of power. You can impeach for that kind of abuse of power. And that’s exactly what we have here. We’re not required to leave our common sense at the door.

Speaker 6: (09:50)
If we’re to interpret the constitution now as saying that a president can abuse their power, and I think the professor suggested before the break that he can abuse this power in a corrupt way to help his reelection and you can’t do anything about it. You can’t do anything about it. Because if he views it as in his personal interest, that’s just fine. He’s allowed to do it. None of the founders would have accepted that kind of reasoning. In fact, the idea that the core offense that the founders protected against, that core offense is abuse of power, is beyond the reach of Congress through impeachment would have terrified the founders.

Speaker 6: (10:37)
I mean, you can imagine any number of abuses of power. A president who withholds aid from another country at war as a thank you for that adversary allowing him to build a Trump tower in that country. Okay. That may not be criminal, but are we really going to say that we’re going to have to permit a president of the United States to withhold military aid as a thank you for a business proposition?

Speaker 6: (11:06)
Now, counsel acknowledges that a crime is not necessary, but something akin to a crime. Well, we think there’s a crime here of bribery or extortion, conditioning official acts for personal favors, that is bribery. It’s also what the founders understood as extortion. And you cannot argue, even if you argue well under the modern definition of bribery, you’ve got to show such and such, you cannot plausibly argue that it’s not akin to bribery. It is bribery, but it’s certainly akin to bribery. But that’s the import of what they would argue, that no, the president has a constitutional right. In article two he can do anything he wants. He can abuse his office and do so sacrificing our national security, undermining the integrity of the elections, and there’s nothing Congress can do about it.

Key Q&A 12

The question from Senator Harris is for the house managers. President Nixon said, “When the president does it, that means that it is not illegal.” Before he was elected president, Trump said, “When you’re a star, they let you do it. You can do anything.” After he was elected, President Trump said that Article Two of the Constitution gives him “the right to do whatever he wants as president.” These statements suggest that each of them believed that the president is above the law, a belief reflected in the improper actions that both presidents took to affect their reelection campaigns. If the Senate fails to hold the president accountable for misconduct, how would that undermine the integrity of our system of justice?

Mr. Chief Justice, senators, I think this is exactly the fear. I think if you look at the pattern in this president’s conduct and his words, what you see is a president who identifies the state as being himself, when the president talks about people that report his wrongdoing, for example, when he describes a whistleblower as a traitor or a spy. The only way you can conceive of someone who reports wrongdoing as committing a crime against the country is if you believe that you are synonymous with the country, that any report of wrongdoing against the person of the president is a treasonous act. It is the kind of mentality that says, “Under Article Two, I can do whatever I want, that I’m allowed to fight all subpoenas.”

Now, counsel has given a variety of explanations for the fighting of all subpoenas. They might have a plausible argument if the administration had given hundreds of documents, but reserved some and made a claim of privilege, or the administration has said, “We’ll allow these witnesses to testify, but with these witnesses, with these particular questions, we want to assert a privilege.” Of course, that’s not what was done here. What we have instead is a shifting series of rationales and explanations and duplicitous arguments, some made in court and some made here.

We have the argument that the subpoenas aren’t valid before the House resolution, and then with respect to subpoenas issued after the House resolution, like to Mulvaney, well, those are no good either. You have the argument made that we have absolute immunity, and the court that addresses this says, “No, you don’t. You’re not a king. That argument may be thought of with favor by various presidents over history. It has never been supported by any court in the land. There’s no constitutional support for that either.”

Documents that are being released right now as we sit here, and it’s a mystery to the country and it’s a mystery to some of us, how are private litigants able to get documents through the Freedom of Information Act that the administration has withheld from Congress? If they were operating in any good faith, would that be the case? Of course, the answer is no. What we have instead is we’re going to claim absolute immunity, even though the court says that doesn’t exist.

Now, they said, well, the House withdrew the subpoena on Dr. Kupperman. Why would they withdraw the subpoena on Dr. Kupperman when he was only threatening to tie you up endlessly in court? Now, we suggested to counsel for Dr. Kupperman that if they had a good-faith concern about testifying, if this was really good faith and it wasn’t just a stratagem to delay, if it wasn’t just part of the president’s wholesale fight all subpoenas, they didn’t need to file separate litigation, because there was actually a case already in court involving Don McGahn on that very subject that was ripe for decision. Indeed, the decision would come out very shortly thereafter. We said, “Let’s just agree to be bound by what the McGahn court decides.” Well, they didn’t want to do that, and it became obvious once the McGahn court decision came out, because the McGahn court said, “There’s no absolute immunity. You must testify.” By the way, if you think people involved in national security, i.e., Dr. Kupperman and John Bolton, if you’re listening, if you think you’re somehow absolutely immune, you’re not.

Did Dr. Kupperman say, “Well, now I have the comfort I needed because the court has weighed in”? The answer is, of course not. Now, counsel says, “Well, we might’ve gotten a quick judgment in Kupperman.” Yeah, in the lower court. Do any of you believe for a single minute they wouldn’t appeal to the court of appeals and to the Supreme Court, and if the Supreme Court struck down the absolute immunity argument, they wouldn’t be back in the district court saying, “Okay, he’s not absolutely immune anymore, but we’re going to claim executive privilege over specific conversations that go to the president’s wrongdoing”?

That is the sign of a president who believes he is above the law, that Article Two empowers him to do anything he wants. I’ll say this, if you accept that argument, if you accept the argument that the president of the United States can tell you to pound sand when you try to investigate his wrongdoing, there will be no force behind any Senate subpoena in the future. The fighting all subpoenas started before the impeachment. If you allow a president to obstruct Congress so completely, in a way that Nixon could never have contemplated, nor would the Congress of that day have allowed, you will eviscerate your own oversight capability-

Thank you, counsel.

… not just in impeachments.

Key Q&A 13

John Roberts: (00:02)
Question from Senator Johnson for the President’s counsel. If House Managers were certain it would take months to litigate a subpoena for John Bolton, why shouldn’t the Senate assume lengthy litigation and make the same decision as the House made, reject a subpoena for John Bolton?

Mr. Chief Justice, members of the Senate. I think that’s precisely the point. And the fact is that if in fact we are to go down that road of a witness or witnesses, in the case of Ambassador Bolton, high ranking NSA, this is an individual that’s giving the President advice at the highest level, the Supreme Court’S been very consistent on that. That’s where privileges are at their highest level. The presumed privilege actually, is what the Supreme Court has said. And in a situation like this, I think we’re going down a road. If the Senate goes this road, of a lengthy proceeding, with a lot more witnesses and then I want to ask this question and just plant it as a thought, is that going to be the new norm for impeachment?

You put an impeachment together in a couple of weeks. We don’t like what the president did. We get it through in a two day proceeding in front of the judiciary committee. We wrap it up and we send it up here and say, “Now go figure it out.” Because that’s what this is really becoming. That’s what this actually is. So I think if we’re looking at the institutional interests that are at stake here, this is a very dangerous precedent because what they’re doing, what they’re saying is basically, “Well, we have enough to prove our case.” That’s what Manager Schiff said, but not really. So we really need more evidence, not because we need it because we want it, but we didn’t want it bad enough when we were in the House so we didn’t get it. So now you issued a subpoena and then let’s duke it out in court and see what happens.

Sounds like to me that this is, they’re acting like this is some municipal traffic court proceeding. I remind everybody that we’re talking about, under their articles of impeachment, they are requesting the removal of the President of the United States. So they’re already saying, in the media that their ongoing investigation, they’re going to continue to investigate, are we going to be doing this every three weeks? Every month except in the summer? There’s an election months away. The people should have a right to vote. My colleague, Pat Cipollone, the White House counsel said that. So when I look at all of this, whether it’s the late need of witnesses, after you said you proved your case. If it’s how do privileges apply or not apply, Senator Schumer said we get anybody we want. We’d be here for a very, very long time. And that’s not good for the United States. Thank you.

Thank you, counsel. The Democratic leader is recognized.

Chuck Schumer: (03:13)
I have a question.

The question is for the House Managers, would you please respond to the answer that was just given by the President’s counsel?

I think we can all see what’s going on here and that is if the House wants to call witnesses, if you want to hear from a single witness, if you want to hear what John Bolton has to say, we are going to make this endless. We, the President’s lawyers are going to make this endless. We promise you, we’re going to want Adam Schiff. We’re going to want Joe Biden to testify. We’re going to want Hunter Biden, we’re going to want the whistleblower. We’re going to want everyone in the world. If you dare, if you have the unmitigated temerity to what witnesses in a trial, we will make you pay for it with endless delay. The Senate will never be able to go back to its business. That’s their argument. “How dare the House assume there will be witnesses in a trial?” Shouldn’t the House have known when they undertook its investigation that the Senate was never going to allow witnesses? That this would be the first impeachment trial in the history of the Republic with no witnesses?”

So Mr. Sekulow wants me to testify. I’d like Mr. Sekulow to testify about his contacts with Mr. Parnas. Or Mr. Cipollone about the efforts to implement the President’s fight on all subpoenas. I’d like to ask questions about, well, I’d like to ask questions of the President and put him under oath. But we’re not here to indulge in fantasy or distraction. We’re here to talk about people with pertinent and probative evidence. And you know something? I trust the man behind me sitting way up who I can’t see right now, but I trust him to make decisions about whether a witness is material or not, whether it’s appropriate to out a whistleblower or not, whether a particular passage in a document is privileged or not. It’s not going to take months of litigation. Although that’s what the President’s counsel is threatening. They’re doing the same thing to the Senate they did to the House, which is you try to investigate the president, you try to try the president. We will tie you and your entire chamber up in knots for weeks and months.

And you know something? They will if you let them. You don’t have to let them. You can subpoena John Bolton. You can allow the Chief Justice to make a determination in-camera whether something is relevant. Whether it deals with Ukraine or Venezuela. Whether it’s privileged or it isn’t. Whether the privilege is being misapplied to hide criminality or wrongdoing. We don’t have to go up and down the courts. We’ve got a perfectly good Chief Justice sitting right behind me who can make these decisions in real time. So don’t be thrown off by this claim, “Oh, if you even think about it, we are going to make you pay with delays like you’ve never seen. We’re going to call witnesses that will turn this into a circus.”

Shouldn’t be a circus, should be a fair trial. You can’t have a fair trial without witnesses. I think when I was asked that question before I answered in the affirmative one and then the negative. You can’t have a fair trial without witnesses and you shouldn’t presume that when a House impeaches, the Senate trials from now on will be witness free, will be evidence free. That’s not what the Founders intended. If it was, they would have made you the court of appeals, but they didn’t. They made you the triers of fact. They expected you to hear for, is they expected you to evaluate the credibility. Don’t take my word for it about John Bolton. Look, I’m no fan of John Bolton, although I like them a little more than I used to. But you should hear from him, you should want to.

Don’t take General Kelly’s view for it. Make up your own mind. Whether you’d believe him or Mick Mulvaney. Would you believe John Bolton or the President. Make up your own mind. Yes, we proved our case counsel. We proved it overwhelmingly, but you chose to contest the fact that the President withheld military aid to coerce an ally. You chose to contest it. You chose to make John Bolton’s testimony relevant, pertinent. If you had stipulated the President did as he is charged, then you might make the argument that you’re making here. But you haven’t, you’ve contested. It and now you want to say, “But the Senate shall not hear from this witness.” That’s not a fair trial. That’s not even the appearance of fairness. You can’t have a fair trial without basic fairness.


Key Q&A 14

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

Senators, the answer is yes. Of course we asked John Bolton to testify in the House and he refused. We asked his deputy, Dr. Kupperman to testify and he refused. Fortunately, we asked their Deputy Dr. Fiona Hill to testify and she did. We asked her deputy, the Colonel Vindman to testify and he did. But we did seek the testimony of John Bolton, as well as Dr. Kupperman and they refused. When we subpoenaed Dr. Kupperman, he sued us. Took us to court. When we raised a subpoena with John Bolton’s counsel, the same counsel for Dr. Kupperman, the answer was, “Senator, you serve us with a subpoena and we will sue you, too.” We knew based on the McGahn litigation, it would take months, if not years to force John Bolton to come and testify. I should point out, because I think this is an essential point to underscore, as the president’s lawyers say, “They didn’t try hard enough to get John Bolton or they should have subpoenaed John Bolton.”

That’s what they’re telling you, but let me show you what they’re telling the court in the McGahn litigation. If we could pull up slide number 39… This is the president’s lawyers in court in the McGahn litigation. In the court of appeals right now, “The committee,” meaning our committee, “lacks article III standing to sue to enforce a congressional subpoena demanding testimony from an individual on matters related to duties as an executive branch official.” It takes your breath away, the duplicity of that argument. They’re before you saying they should have tried harder to get these witnesses, they should subpoena, they should have litigated for years. Down the street in the federal courthouse they’re arguing, “Judge, you need to throw them out. They have no standing to sue to force a witness to testify.” Are we really prepared to accept that? Now, counsel says, “Think about the precedent that we would be setting if you allow a House to impeach a president and you permit them to call witnesses.”

Well, I would submit, think about the precedent you will be setting if you don’t allow witnesses in a trial. That, to me, is the much more dangerous precedent. But I’ll tell you there’s something even more dangerous. This was something that we anticipated from the very beginning, which is we understood when we got to this point, they could no longer contest the facts that the president withheld military aid from the ally at war to coerce that ally to doing the president’s political dirty work. Now they have fallen back on, “You shouldn’t hear any further evidence, any further witnesses on this subject. What’s more, we’re going to use the end-all argument, ‘so what?’ A president is free to abuse their power.” We’re going to rely on a constitutional theory, a fringe theory that even the advocate of which says is outside of the consensus of constitutional law, to say that a president can abuse his power with impunity. Now, imagine where that leads. A president can abuse his power with impunity.

Now, that argument made by Professor Dershowitz is at odds with the attorney general’s own expressed opinion on the subject, with Ken Starr’s expressed opinion on the subject, with not only other counsel for the president, Jonathan Turley, who testified in the House, says that theory is constitutional effectively nonsense. Even 60 year old Alan Dershowitz doesn’t agree with 81 year old Alan Dershowitz. And for a reason. Because where that conclusion leads us is that a president can abuse his power in any kind of way and there’s nothing you can do about it.

Now, are we really ready to accept the position that this president or the next can withhold hundreds of millions of dollars in military aid to an ally at war unless they get help in their reelection? Would we say that you could, as president, withhold disaster relief from a governor unless that governor got his attorney general to investigate the president’s political rival? That, to me, is the most dangerous argument of all. It’s a danger to have a president who would engage in this conduct. It’s a danger to have a trial with no witnesses and set that precedent. But the biggest danger of all, I think, would be to accept the idea that a president could abuse his office in this way and the Congress is powerless to do anything about it. That is certainly not what the founders intended.

Key Q&A 15

The question is addressed to counsel for the President. As a matter of law, does it matter if there was a quid pro quo? Is it true that quid pro quos are often used in foreign policy?

Chief justice, thank you very much for your question. Yesterday I had the privilege of attending the rolling out of a peace plan by the President of the United States, regarding the Israel Palestine conflict. And I offered you a hypothetical the other day, what if a democratic President were to be elected and Congress were to authorize much money, to either Israel or the Palestinians? And the democratic President were to say to Israel, “No, I’m going to withhold this money unless you stop all settlement growth.” Or to the Palestinians, “I will withhold the money Congress authorized to you unless you stopped paying terrorists.”

And the President said, “Quid pro quo. If you don’t do it, you don’t get the money. If you do it, you get the money.” There’s no one in this chamber that would regard that as in any way unlawful. The only thing that would make a quid pro quo unlawful is if the quo were in some way illegal. Now we talked about motive. There are three possible motives that a political figure can have. One, a motive in the public interest and the Israel argument would be in the public interest. The second is in his own political interest and the third which hasn’t been mentioned, would be in his own financial interest. His own pure financial interests, just putting money in the back.

I want to focus on the second one for just one moment. Every public official that I know believes that his election is in the public interest and mostly you’re right, your election is in the public interest. And if a President does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment. I quoted President Lincoln. When President Lincoln told general Sherman to let the troops go to Indiana so that they can vote for the Republican party.

Let’s assume the President was running at that point and it was in his electoral interest to have these soldiers put at risk the lives of many, many other soldiers, who would be left without their company. Would that be an unlawful quid pro quo? No, because the President A, believed it was in the national interest, but B, he believed that his own election was essential to victory in the civil war. Every President believes that, that’s why it’s so dangerous to try to psychoanalyze a President, to try to get into the intricacies of the human mind. Everybody has mixed motives. And for there to be a constitutional impeachment based on mixed motives would permit almost any President to be impeached.

How many Presidents have made foreign policy decisions after checking with their political advisors and their pollsters? If you’re just acting in the national interest, why do you need pollsters? Why do you need political advisors? Just do what’s best for the country. But if you want a balance what’s in the public interest with what’s in your party’s electoral interests and your own electoral interest, it’s impossible to discern how much weight is given to one to the other. Now, we may argue that it’s not in the national interest for a particular President to get reelected, or for a particular Senator or a member of Congress.

And maybe you were right, it’s not in the national interest for everybody who’s running to be elected. But for it to be impeachable you would have to discern that he or she made a decision solely on the basis of, as the House managers put it, corrupt motives. And it cannot be a corrupt motive if you have a mixed motive that partially involves the national interest, partially involves electoral and does not involve personal pecuniary interests. And the House managers do not allege that this decision, this quid pro quo as they call it and the question is based on the hypothesis, there was a quid pro quo. I’m not [inaudible 00:04:52] the facts.

They never alleged that it was based on pure financial reasons. It would be a much harder case if a hypothetical President of the United States said to a hypothetical leader of a foreign country, “Unless you build a hotel with my name on it and unless you give me a million dollar kickback, I will withhold the funds.” That’s an easy case. That’s purely corrupt and in the purely private interest. But a complex middle case is, “I want to be elected. I think I’m a great President. I think I’m the greatest President there ever was and if I’m not elected, the national interest will suffer greatly.” That cannot be an impeachable offense. Thank you Chief Justice.

Recognize the Democratic leader.

Mr. Chief Justice, I send the question to the desk.

The question is for the House managers. Would you please respond to the answer that was just given by the President’s council?

I would be delighted. There are two arguments that Professor Dershowitz makes. One that is, I have to say, a very odd argument for a criminal defense lawyer to make. And that is, it is highly unusual to have a discussion in trial about the defendant’s state of mind intent or mens rea. In every courtroom in America, in every criminal case or almost every criminal case, except for a very small sliver that are strict liability, the question of the defendant’s intent and state of mind is always an issue. So this is nothing novel here, you don’t require a mind reader. In every criminal case and I would assume in every impeachment case, yes, you have to show that the President was operating from a corrupt motive and we have.

But he also makes an argument that all quid pro quos are the same and all are perfectly copacetic. “Now, some of you said earlier, well, if they could prove a quid pro quo over the military, now that would be something.” Well, we have. So now the argument shifts to all quid pro quos are just fine. They’re all the same. Well, I’m going to apply Professor Dershowitz’s own test. He talked about the step test, John Rawls, the philosopher, let’s put the shoe on the other foot and see how that changes our perception of things. But I want to merge that argument with one of the other Presidential council’s argument when they resorted to the what about ism, about Barack Obama’s open mic.

Now, that was a very poor analogy, I think you’ll agree. But let’s use that analogy and let’s make it more comparable to today and see how you feel about this scenario. President Obama on an open mic says to Medvedev, “Hey Medvedev, I know you don’t want me to send this military money to Ukraine because they’re fighting and killing your people. I want you to do me a favor though. I want you to do an investigation of Mitt Romney. And I want you to announce you found a dirt on Mitt Romney. And if you’re willing to do that, quid pro quo, I won’t give Ukraine the money they need to fight you on the front line.”

Do any of us have any question that Barack Obama would be impeached for that kind of misconduct? Are we really ready to say that that would be okay? If Barack Obama asked Medvedev to investigate his opponents and would withhold money from an ally that it needed to defend itself, to get an investigation of Mitt Romney. That’s the parallel here and to say, “Well, yes, we condition aid all the time.” For legitimate reason, yes. For legitimate reasons you might say to a governor of a state, “Hey, governor of a state, you should chip in more towards your own disaster relief.”

But if the President’s real motive in depriving a state of disaster relief is because that governor won’t get his attorney general to investigate the presence political rival, are we ready to say that the President can sacrifice the interests of the people of that state or in the case of Medvedev, the people of our country, because all quid pro quos are fine, it’s carte blanche? Is that really what we’re prepared to say with respect to this President’s conduct or the next? Because if we are, then the next President of the United States can ask for an investigation of you. They can ask for help in their next election from any foreign power.

And the argument will be made, “Nope, Donald Trump was acquitted for doing exactly the same thing, therefore it must not be impeachable.” Now bear in mind that efforts to cheat an election are always going to be in proximity to an election. And if you say you can’t hold a President accountable in an election year where they’re trying to cheat in that election, then you are giving them carte blanche. So all quid pros are not the same. Some are legitimate and some are corrupt, and you don’t need to be a mind reader to figure out which is which. For one thing, you can ask John Bolton.

Key Q&A 16

The question is directed to the House Managers. “In Federalist 65, Alexander Hamilton writes that the subjects of impeachment are, ‘Those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.’ Could you speak broadly to the duties of being a public servant and how you believe the President’s actions have violated this trust?”

Mr. Chief Justice, members of the Senate. President Trump used the powers of his office to solicit a foreign nation to interfere in our elections for his own benefit. Then he actively obstructed Congress in his attempts to investigate his abuses of power. These actions are clearly impeachable. The key purpose of the impeachment clause is to control abuses of power by public officials, that is to say, conduct that violates the public trust. Since the founding of the Republic, all impeachments have been based on accusations of conduct that violates the public trust. When the framers wrote the phrase “high crimes and misdemeanors” the intended to capture the conduct of public officials like President Trump, who showed no respect for their oath of office. President Trump ignored the law and the Constitution in order to gain a political favor.

The Constitution and his oath of office prohibited him from using his official favor to corruptly benefit himself rather than the American people. That’s exactly what the President did, illegally withholding military aid and a White House meeting until the president of Ukraine committed to announcing an investigation of President Trump’s opponent. In the words of one Constitutional scholar, “If what we’re talking about is not impeachable, then nothing is impeachable.”

This is precisely the misconduct that the framers created the Constitution, including impeachment, to protect against. And I want to add in reference to some of the comments that were made by some of the President’s counsel a few minutes ago. They talk about the subpoena power, about the failure of the House to act properly in the subpoena power. Because, they said, the House did not delegate by rule, have a resolution authorizing the committee’s to offer subpoena power. They apparently haven’t read the fact that the House has generally delegated all subpoena power to the committees. That wasn’t true at the time of the Watkins case, it wasn’t true fifteen years ago, but it is true now.

Second, the House has the sole power of impeachment, and the manner of its exercise may not be challenged from outside, whether we do it… Whether the President should be convicted upon our accusation is a question for the Senate, but how we reached our accusation is a matter solely for the House. Thirdly, they talk about executive privilege and they point to the Nixon case that established executive privilege, that the President has a right to private… To candid advice, and therefore executive privilege is established, but the same case says that executive privilege cannot be used to hide wrongdoing, and in fact, President Nixon was ordered in that case to turn over all the material.

Thirdly, there’s the doctrine of waiver. You cannot use executive privilege, or any other privilege, if you waive it. The moment President Trump said that John Bolton was not telling the truth when he said that the President told him of the improper quid pro quo, he waived any executive privilege that might have existed. He cannot characterize a conversation and put it into the public domain and then claim executive privilege against it. The President, by the way, never claimed executive privilege, ever. He has claimed instead absolute immunity, a ridiculous doctrine that the president has absolute immunity from any questioning by the Congress or by anybody else, a claim rejected by every court that has ever considered it.

And finally, the difference from this president and any other president claiming privilege of any sort is that this president told us in advance, “I will defy all subpoenas. Whatever their nature, I will make sure that the Congress gets no information.” In other words, “I am absolute. The Congress cannot question what I do because I will defy all subpoenas. I will make sure they get no information no matter what their rights, no matter what the situation.” That is the subject of Article II of the impeachment because that is a claim of absolute monarchical power.

Thank you Mr. Manager. The Majority Leader is recognized-

Sen McConnell: (05:11)
I want to suggest after two more questions on each side… One more. I’ve been corrected, as I frequently am. One more question on each side, we take a fifteen minute break.

Thank you.

Sen Roberts: (05:27)
Mr. President.

Yes, the Senator from Kansas.

Sen Roberts: (05:34)
I sent a question to the desk for the counsel for the President.

Thank you.

Senator Roberts asks, “Would you please respond to the arguments or assertions the House Manager’s made in response to the previous questions?” Directed to the counsel for the President.

Sekulow: (06:13)
Mr. Chief Justice, members of the Senate. I want to respond to a couple. First with regard to the question or the issues that have been raised as it relates to witnesses, it’s important to note that in the Clinton impeachment proceeding, the witnesses that actually gave deposition testimony were witnesses that had either been interviewed by deposition in the House proceedings, grand jury proceedings, and it was specifically, it was Sid Blumenthal, Vernon Jordan, and Monica Lewinsky. New witnesses were not being called. That’s because the House in their process moved forward with a full investigation. That did not happen here.

Sekulow: (06:55)
There was another statement that was raised by Mr. Chairman Schiff, Manager Schiff, regarding the Chief Justice can make the determination on executive privilege, and again, with no disrespect to the Chief Justice, the idea that the presiding officer at this proceeding could determine a waiver or the applicability of executive privilege would be quite a step. There’s no historical precedent that would justify it. But there’s something else. If we get to the point of witnesses, then for instance, if one of the witnesses to be called were, by the President’s lawyers, was Adam Schiff, in the role basically of Ken Starr. Ken Starr presented the report, made the presentation before the House of Representatives, had about 12 hours of questioning I believe is what Judge Starr had, if Representative Schiff was called as a witness, would in fact then issues of speech and debate clause privilege be litigated and decided by the presiding officer or would it go to court? Or maybe they would waive it.

Sekulow: (08:12)
But those would be the kind of issues that would be very, very significant. Senator Graham presented a hypothetical which Manager Schiff said, “Well that’s not really the hypothetical,” but hypotheticals actually are that. They’re hypotheticals. To use Manager Schiff’s words, he talked about, it would be wrong if the FBI or the Department of Justice was starting a political investigation of someone’s political opponent. And I’m thinking to myself, but isn’t that exactly what happened? The Department of Justice and the FBI engaged in an investigation of the candidate for president of the United States when they started their operation called Crossfire Hurricane. He said it would be targeting a rival. Well that’s what that did. He said it would be calling for foreign assistance in that.

Sekulow: (09:11)
Well, in the particular facts of Crossfire Hurricane, it has been well established now that in fact Fusion GPS utilized the services of a former foreign intelligence officer, Christopher Steele, to put together a dossier, and that Christopher Steele relied on his network of resources around the globe, including in Russia and other places. To put together this dossier which then James Comey said was unverified and salacious, but yet it was the basis upon which the Department of Justice and the FBI obtained FISA warrants, and this was in 2016, against a rival campaign. So, we don’t have to do hypotheticals. That’s precisely the situation. But to take it an additional step, this idea that a witness will be called, if this body decides to go to witnesses, that a witness will be called would be a violation of fundamental fairness. Of course, if witnesses are called by the House Managers through that motion, well, the President’s counsel would have the opportunity to call witnesses as well, which we would. Thank you Mr. Chief Justice.

Thank you counsel.

Transcript: Key Moments in January 29 Impeachment Trial Q&A Session

Key Q&A 1

Key Q&A 2

Key Q&A 3

Key Q&A 4

Key Q&A 5

Key Q&A 6

Key Q&A 7

Key Q&A 8

Key Q&A 9

Key Q&A 10

Key Q&A 11

Key Q&A 12

Key Q&A 13

Key Q&A 14

Key Q&A 15

Key Q&A 16

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