Jan 28, 2020
Trump Defense Lawyer Impeachment Trial Final Arguments January 28 – Philbin, Cipollone, Sekulow
Donald Trump’s Impeachment trial continued in the Senate on Tuesday January 28, with his lawyers giving their final series of defense arguments. We heard from Patrick Philbin, Jay Sekulow, and a closing argument by Pat Cipollone.
Patrick Philbin Defense Argument
Patrick Philbin: (00:01)
Mr. Chief Justice, members of the Senate, Majority Leader McConnell, Minority Leader Schumer. I’d like to start today by making a couple of observations related to the abusive power charge in the first article of impeachment and I wouldn’t presume to elaborate on Professor Dershowitz’s presentation from yesterday evening, which I thought was complete and compelling, but I wanted to just add a couple of very specific points in support of the exposition of the Constitution and the impeachment clause that he set out.
Patrick Philbin: (00:37)
And it begins from a focus on the point and the debate about the impeachment clause at the constitutional convention where maladministration was offered by George Mason as a grounds for impeachment. And James Madison responded that that was a bad idea and he said, “So vague a term will be equivalent to a tenure during the pleasure of the Senate.” And that evinced a deep state of concern that Madison had and it’s part of the whole design of our Constitution for ways that can lead to exercises of arbitrary power.
Patrick Philbin: (01:17)
The Constitution was designed to put limits and checks on all forms of government power. Obviously one of the great mechanisms for that is the separation of powers, the structural separation of powers in our Constitution, but it also comes from defining and limiting powers and responsibilities and a concern that vague terms, vague standards are themselves an opportunity for the expansion of power in the exercise of arbitrary power. And we see that throughout the Constitution and in the impeachment clause as well. And this is why as Gouverneur Morris argued in discussing the impeachment clause that only few offenses, he said, “Few offenses ought to be impeachable and the cases ought to be enumerated and defined.” And that’s why we see in the debate that the Constitution, many terms had been included in earlier drafts when it was narrowed down to treason and bribery. And there was a suggestion to include maladministration, which had been a ground for impeachment and English practice. The framers rejected it because it was too vague, it was too expansive. It would allow for arbitrary exercises of power.
Patrick Philbin: (02:31)
And we see throughout the Constitution in terms that relate and fit in with the impeachment clause the same concern. One is in the definition of treason. The framers were very concerned that the English practice of having a vague concept of treason that was malleable and could be changed even after the facts to define new concepts of treason was dangerous. It was one of the things that they wanted to reject from the English system. So they defined in the Constitution very specifically what constituted trees and how it had to be proved. And then that term was incorporated into the impeachment clause. Similarly, in the rejection of maladministration, which had been an impeachable offense in England, the framers rejected that because it was vague, a vague standard, something that’s too changeable, that can be redefined, can be malleable after the fact, allows for the arbitrary exercise of power. And that would be dangerous to give that power to the legislature as a power to impeach the executive.
Patrick Philbin: (03:37)
And similarly, and it relates again to the impeachment clause, one of the greatest dangers from having changeable standards that existed in the English system was bills of attainder. Under a bill of attainder, the parliament could pass a specific law saying that a specific person had done something unlawful. They were being attainted, even though it wasn’t unlawful before that. And the framers rejected that entire concept. In Article One, Section Nine they eliminated both bills of attainder and all ex post facto laws for criminal penalties at the federal level. And they also included a provision to prohibit states from using bills of attainder.
Patrick Philbin: (04:18)
Now in the English system, there was a relationship to some extent between impeachment and bills of attainder because both were tools of the parliament to get at officials in the government. You could impeach them for an established defense or you could pass a bill of attainder. And it was because the definition of impeachment was being narrowed, that George Mason at the debates suggested and he pointed out, in the English system, there’s a bill of attainder. It’s been a great useful tool for the government, but we’re eliminating that and now we’re getting a narrow definition of impeachment. We ought to expand it to include maladministration. And Madison said, “No.” And the framers agreed we have to have a numerated and defined offenses, not a vague concept, not something that can be blurry and interpreted after the fact. And it could be used essentially to make policy differences or other differences like that to subject of impeachment.
Patrick Philbin: (05:19)
All of the steps that the framers took in the way they approached the impeachment clause were in terms of narrowing, restricting, constraining, enumerating offenses and not a vague and malleable approach as there had been in the English system. And I think the minority views of Republican members of the house judiciary committee at the time of the Nixon impeachment inquiry summed this up and reflected it well because they explained, and I’m quoting from the minority views in the report, “The whole tenor of the framers discussions, the whole purpose of there are many careful departures from English impeachment practice was in the direction of limits and of standards. An impeachment power exercised without extrinsic and objective standards would be tantamount to the use of bills of attainder and ex post facto laws which are expressly forbidden by the Constitution and are contrary to the American spirit of justice.”
Patrick Philbin: (06:22)
And what we see in the house manager’s charges and their definition of abuse of power is exactly antithetical to the framers approach because their very premise for their abuse of power charge is that it is entirely based on subjective motive, not objective standards, not predefined offenses, but the President can do something that is perfectly lawful, perfectly within his authority. But if the real reason, as professor Dershowitz pointed out, that’s the language from their report, the reason in the President’s mind is something that they fare it out and decide is wrong, that becomes impeachable. And that’s not a standard at all. It ends up being infinitely malleable. And it’s something that I think a telling factor that reflects how malleable it is and how dangerous it is is in the house judiciary committee’s report. Because after they define their concept of abusive power and they say that it involves you exercising government power for personal interest and not the national interest, and it depends on your subjective motives, they realize that that’s infinitely malleable. There’s not really a clear standard there and it’s violating a fundamental premise of the American system of justice that you have to have notice of what is wrong. You have to have notice of an offense. And this is something that professor Dershowitz pointed out last night. There has to be a defined offense and advance.
Patrick Philbin: (07:55)
And the way they tried to resolve this is to say, “Well, in addition to our definition, high crimes and misdemeanors involve conduct that is recognizably wrong to a reasonable person.” And that’s their kind of add on to deal with the fact that they have an unconstitutionally vague standard. They don’t have a standard that really defines a specific offense. They don’t have a standard that really defines in coherent terms that are going to be identifiable what the offenses are. So they just add on and it’s got to be recognizably wrong. And they say that they’re doing this to resolve a tension, they call it within the Constitution because they point out, and this is quoting from the report, “The structure of the Constitution, including its prohibition on bills of attainder and the ex post facto clause implies that impeachable offenses should not come as a surprise.”
Patrick Philbin: (08:52)
That’s exactly what professor Dershowitz pointed out. And everything about the terms of the Constitution, speaking of an offense and a conviction that it’s a crime should be tried by jury except impeachments. They all talk about impeachment in those criminal offense terms, but the tension here isn’t within the Constitution. It’s between the house manager’s definition, which lacks any coherent definition of an offense that would catch people by surprise and the Constitution. That’s the tension that they’re trying to resolve is between their malleable standard that actually States no clear offense and the Constitution and the principles of justice embodied in the Constitution that requires some clear offense.
Patrick Philbin: (09:36)
So I wanted to point that out in relation to the standards for impeachable offenses because it’s another piece of the constitutional puzzle that fits in with the exposition that professor Dershowitz set out. And it also shows an inherent flaw in the house managers’ theory of abuse of power regardless of whether or not one accepts the view that an impeachable offense has to be a crime, a defined crime, there is still the flaw in their definition of abuse of power, that it is so malleable based on purely subjective standards that it does not provide any cognizable notice of an offense. It is so malleable, it in effect recreates the offensive maladministration that the framers expressly rejected as professor Dershowitz explained.
Patrick Philbin: (10:31)
The second point that I wanted to make is that how do we tell under the house managers’ standard what an illicit motive is? When there’s an illicit motive? How are we supposed to get the proof of what’s inside the President’s head? Because of course the motive is inherently difficult to prove where you’re talking about as they’ve conceited, they’re talking about perfectly lawful actions on their face within the constitutional authority of the President, but they want to make it impeachable if it’s just the wrong idea inside the President’s head. And they explain in the house judiciary committee report that the way we’ll tell if the President had the wrong motive is we’ll compare what he did to what staffers in the executive branch said he ought to do.
Patrick Philbin: (11:26)
So they say “that the President disregarded the United States foreign policy towards Ukraine” and that he ignored “official policy that he had been briefed on” and that he “ignored, defied and confounded every agency within the executive branch”. That is not a constitutionally coherent statement. The President cannot defy agencies within the executive branch. Article Two Section One of the Constitution vests all of the executive power in a President of the United States. He alone is an entire branch of government. He sets policy for the executive branch. He’s given vast power and of course within limits set by laws passed by Congress and within limits set by spending priorities, spending laws passed by Congress, he within those constraints sets the policies of the government. And in areas of foreign affairs, military affairs, national security, which is what we’re dealing with in this case, foreign affairs, head of state communications. He has vast powers. As professor Dershowitz explained, for over two centuries, the President has been regarded as the sole organ of the nation in foreign affairs.
Patrick Philbin: (12:53)
So the idea that we’re going to find out when the President had the wrong subjective motives by comparing what he did to the recommendations of some interagency consensus among staffers is fundamentally anti-constitutional. It inverts the constitutional structure and it’s also fundamentally anti-democratic because our system is rather unique in the amount of power that it gives to the President. The executive here has much more power than in a parliamentary system. But part of the reason that the President can have that power is that he is directly democratically accountable to the people. There is an election every four years to ensure that the President stays democratically accountable to the people.
Patrick Philbin: (13:45)
But those staffers in these supposed interagency who have their meetings and make recommendations to the President are not accountable to the people. There is no democratic legitimacy or accountability to their decisions or recommendations. And that is why it is the President is head of the executive branch who has the authority to actually set policies and make determinations regardless of what the staffers may recommend. They’re there to provide information and recommendations, not to set policy. So the idea that we’re going to start impeaching Presidents by deciding that they have illicit motives, if we can show that they disagreed with some interagency consensus is fundamentally contrary to the Constitution and fundamentally anti-democratic. So those were the two observations I wanted to add to supplement specific points on professor Dershowitz’s comments from last night.
Patrick Philbin: (14:41)
Now I want to shift gears and respond to a couple of points that the house managers have brought up that are really completely extraneous to this proceeding. They involve matters that are not charged in the articles of impeachment. They do not directly relate direct, excuse me, relate directly to the President or his actions, but they are accusations that were brought up somewhat recklessly in any event. And we cannot close without some response to them. And the first has to do with the idea that somehow the White House and White House lawyers were involved in some sort of cover up related to the transcript of the July 25th call because it was stored on a highly classified system. So let me start with that.
Patrick Philbin: (15:34)
The house managers made this accusation there was something nefarious going on, but let’s see what the witnesses actually had to say. Lieutenant Colonel Alexander Veneman and remember Lieutenant Colonel Veneman is the person who was listening in on the call and who raised a concern. The only person who went and raised a concern with NSC lawyers that he thought there was something improper, something wrong with the call, even though he later conceded under cross examination, it was really a policy concern, but he thought there was something wrong. And he had to say that he did not think… He said, “So I do not think there was malicious intent or anything of that nature to cover anything up.” He’s the one who went and talked to the lawyers. He’s the one whose complaint spurred the idea that wait, there might be something that’s really sensitive here. We should make sure that this is not going to leak. He thought there was nothing covering it up. His boss, senior director Tim Morrison, had similar testimony.
Steve Castor: (16:41)
So to the best of your knowledge, there’s no malicious intent in moving the transcript to the compartmented server?
Patrick Philbin: (16:49)
And the idea that there was some sort of cover up is further destroyed by the simple fact that everyone who as part of their jobs needed access to that transcript, still had access to it, including Lieutenant Colonel Veneman. Right? So the person who raises a complaint still has access to the transcript the entire time. And this is the way Mr. Morrison’s testimony explained that.
Steve Castor: (17:13)
And even on the codeword server, you had access to it?
Alex Vindman: (17:16)
Steve Castor: (17:19)
So at no point in time during the course of your official duties were you denied access to this information.
Alex Vindman: (17:24)
Steve Castor: (17:25)
Is that correct? And to your knowledge, anybody on the NSC staff that needed access to the transcript for their official duties always was able to access it, correct. People that had a need to know and a need to access it?
Once it was moved to the compartmented system?
Steve Castor: (17:40)
Steve Castor: (17:42)
Patrick Philbin: (17:44)
Now, as Mr. Morrison testified, he recommended restricting access to the transcript, not because he had any concern that there was anything improper or illegal, but he was concerned about a potential leak and as he put it, how that “would play out in Washington’s polarized environment” and would “effect the bipartisan support our Ukrainian partners currently experience in Congress.” And he was right to be concerned potentially about leaks because the Trump administration has faced national security leaks at an alarming rate. Lieutenant Colonel Veneman himself said the concerns about leaks seemed justified and it was not unusual that something would be put in a more restricted circulation.
Patrick Philbin: (18:33)
Now, what else is in the record evidence? Mr. Morrison explained his understanding of how the transcript ended up on that server.
I spoke with the NFC executive secretary at staff, ask them why and they did their research and they informed me it had been moved to the higher classification system at the direction of John Eisenberg, whom I then asked why? I mean if that was the judgment he made, that’s not necessarily mine to question, but I didn’t understand it and he essentially told me I gave no such direction. He did his own inquiry and he represented back to me that his understanding was it was a kind of administrative error that when he also gave direction to restrict access, the executive secretary at staff understood that as an apprehension, that there was something in the content of the MEMCON that could not exist on the lower classification system.
Steve Castor: (19:33)
So to the best of your knowledge, there’s no malicious intent in moving the transcript to the compartmented server?
Patrick Philbin: (19:42)
Everyone who knew something about it and who testified, agreed there was no malicious intent. The call was still available to everyone who needed it as part of their job and it certainly wasn’t covered up or deep six to some way. The President declassified it and made it public, so why are we even here talking about these accusations about a cover up when it’s a transcript that was preserved and made public? Is somewhat absurd.
Patrick Philbin: (20:10)
Now, the other point I’d like to turn to another accusation from the house managers is that the whistleblower complaint. When the whistleblower complaint was not forwarded to Congress, they’ve said that lawyers at the Department of Justice this time, they accused OLC, the Office of Legal Counsel, of providing a bogus opinion for why the director of National Intelligence did not have to advance the whistleblower’s complaint to Congress. And manager Jeffries said that OLC opined “without any reasonable basis that the acting DNI did not have to turn over the complaint to Congress”. And the way he portrayed this, now there’s a statute. It says, if the inspector general of the intelligence community finds a matter of urgent concern, it must be forwarded to Congress. And manager Jeffries portrayed this as if the only thing to decide was were these claims urgent. He said, “What could be more urgent than a sitting Presidents trying to cheat in an American election by soliciting foreign interference?”
Patrick Philbin: (21:26)
That’s not the only question. The statute doesn’t just say if it’s urgent, you have to forward it. It talks about urgent concern as a defined term. Now if the house managers want to come and cast accusations at the political and career officials at the Office of Legal Counsel, which we all know, is a very respected office of the Department of Justice, provides opinions for the executive branch on what governing law is, they should come backed up with analysis. So let’s look at what the law actually says. And I think we have the slide of that. Urgent concern is defined as “a serious or flagrant problem, abuse, violation of law relating to the funding administration or operation of an intelligence activity within the responsibility and authority of the Director of National Intelligence involving classified information.”
Patrick Philbin: (22:30)
So the Office of Legal Counsel was consulted by the General Counsel at the DNI’s office, and they looked at this definition and they did an analysis and they determined that “the alleged misconduct is not an urgent concern within the meaning of the statute” because they’re not just talking about do we think it’s urgent? Do we think it’s important? No, they’re analyzing the law. And they looked at the terms of the statute. “The alleged misconduct is not an urgent concern within the meaning of the statute because it does not concern the funding, administration or operation of an intelligence activity under the authority of the DNI.” Remember what we’re talking about here as a head of state communication between the President of the United States and another head of state. This isn’t some CIA operation overseas. This isn’t the NSA doing something. This isn’t any intelligence activity going on within the intelligence community under the supervision of the DNI. It’s the head of the executive branch exercising his constitutional authority, engaging in foreign relations with a foreign head of state.
Patrick Philbin: (23:47)
So in reaching that conclusion, the Office of Legal Counsel looked at the statute, the case law, the legislative history, and it concluded that this phrase of urgent concern “includes matters relating to intelligence activities subject to the DNI’s supervision, but it does not include allegations of wrongdoing arising outside of any intelligence activity or outside the intelligence community itself.” And that makes sense. This statute was meant to provide for an ability of the inspector general of the intelligence community overseeing the activities of the intelligence community to receive reports about what was going on at intelligence agencies, those that are members of the intelligence community. If there was fraud, waste, abuse, something unlawful in those activities. It was not meant to create an inspector general of the presidency and inspector general of the Oval Office to purport to determine whether the President in exercising his constitutional authorities had done something that should be reported.
Patrick Philbin: (24:59)
This law is narrow. And it does not cover every alleged violation of law we’ll see explained or other abuse that comes to the attention of a member of the intelligence community. Just because you’re in the intelligence community and happened to see something else doesn’t make this law apply. And the law does not make the inspector general for the intelligence community responsible for investigating and reporting on allegations that do not involve intelligence activities or the intelligence community.
Patrick Philbin: (25:32)
Now nonetheless, the President of course released the July 25th call transcript and it was also not the end of the matter that the whistleblower complaints and the ICIG’s letter were not sent directly to Congress because OLC explained that if the complaint is not involved in urgent concern, but if there’s anything else there that you want to have checked out, the appropriate action is to refer the matter to the Department of Justice and that’s what the DNI’s office did. They sent the ICIG’s letter with the complaint to the Department of Justice and the Department of Justice looked. At it and this was all made public some time ago. The Department of Justice examined the exact allegations of the whistleblower and the exact framing and concern raised by the inspector general, which had to do with a potential of perhaps a campaign finance law violation. DOJ looked at it, looked at the statutes, analyzed it, and determined there was no violation and they closed the matter, and it announced that ago.
Patrick Philbin: (26:44)
When something gets sent over to the Department of Justice to examine, you can’t call that a cover up. Everything here was done correctly. The lawyers analyzed the law. The complaint was sent to the appropriate person for review. It was not within the statute that required transmission to Congress and everything was handled entirely properly. So again, actually extraneous to the matters before you, there’s nothing about these two points in the articles of impeachment, but it merits a response when reckless allegations are made against those at the White House and at the Department of Justice. And with that, Mr. Chief Justice, you’ll back to my time to Mr. Sekulow.
Jay Sekulow Defense Argument
Jay Sekulow: (00:28)
Thank you, Mr. Chief Justice, Majority Leader McConnell, Democratic Leader Schumer, house managers, members of the Senate. What we are involved in here, as we conclude, is perhaps the most solemn of duties under our constitutional framework, the trial of the leader of the free world and the duly elected president of the United States.
Jay Sekulow: (00:56)
It is not a game of leaks and unsourced manuscripts. That’s politics, unfortunately, and Hamilton put impeachment in the hands of this body, the Senate, precisely and specifically to be above that fray. This is the greatest deliberative body on earth. In our presentation so far, you’ve now heard from legal scholars from a variety of schools of thought, from a variety of political backgrounds, but they do have a common theme with a dire warning. Danger, danger, danger.
Jay Sekulow: (01:52)
To lower the bar of impeachment based on these articles of impeachment would impact the functioning of our constitutional Republic and the framework of that constitution for generations. I asked you to put yourself, and quoting Mr. Schiff, Manager Schiff’s statement his father made about putting yourself in the shoes of someone else. And I, I said, I’d like you to put your shoes, your, yourself in the shoes of the president. And I think it’s important as we conclude today that we’re minded of that fact.
Jay Sekulow: (02:44)
The president of the United States, before he was the president, was under an investigation. It was called Crossfire Hurricane. It was an investigation led by the FBI, the Federal Bureau of Investigation. James Comey eventually told the president a little bit about the investigation and referenced the Steele dossier.
Jay Sekulow: (03:20)
James Comey, the, the then director of the FBI said it was salacious and unverified. So salacious and unverified that they used it as a basis to obtain FISA warrants. Members, managers here, managers at this table right here said that any discussions on the abuse from the Foreign Intelligence Surveillance Act utilized to get the FISA warrants from the court were conspiracy theories. I told you at the very beginning, I asked, do you put yourselves in the shoes of not just this president, of any president that would have been under this type of attack?
Jay Sekulow: (04:13)
FISA warrants issued on people affiliated with his campaign. American citizens affiliated with people of his campaign. Citizens of the United States being surveilled pursuant to an order that has now been acknowledged by the very court that issued the order that it was based on a fraudulent presentation.
Jay Sekulow: (04:41)
In fact, evidence specifically changed, changed by the very FBI lawyer who was in charge of this. Changed to such an extent that the foreign surveillance intelligence court, as I said earlier, I’m not going to repeat it again, issued two orders saying that when this agent, this lawyer made these misrepresentations to the National Security Division, they also made a misrepresentation to a federal court. The federal court, the foreign surveillance court. A court where there are no defense witnesses. A court where there are, is no cross examination. It’s a court based on trust. That trust was violated.
Jay Sekulow: (05:42)
And then, the director of the Federal Bureau of Investigation, James Comey decides he will leak a memo of a conversation he had with the president of the United States. And he is leaking the memo for a purpose, he said. To obtain the appointment of a special counsel. And lo and behold, a special counsel was appointed. And it just so happens that that FBI agent, lawyer who committed the fraud on the FISA court became a lawyer for the Mueller investigation, only to be removed because of political animus and bias found by the inspector general.
Jay Sekulow: (06:39)
Then we have a special council investigation. Lisa Page, Agent Strzok. I’m not going to go into the details. You know them. They’re not in controversy. They’re uncontroverted, the facts are clear. But does it bother your sense of justice even a little bit, even a little bit that Bob Mueller allowed the evidence on the phones of those agents to be wiped clean while there was an investigation going on by the inspector general? Now, if you did it, if you did it, Manager Schiff, if you did it, Manager Jeffries, if I did that, destroyed evidence … if anyone in this chamber did this, we’d be in serious trouble. Their serious trouble is they get fired.
Jay Sekulow: (07:45)
Bob Mueller’s explanation for it is, I don’t know what happened. I don’t know what happened. I can’t recall the conversations. You can’t view this case in a vacuum. You are being asked, and I say this with the utmost respect, you are being asked to remove an elected, duly elected president of the United States. This isn’t some … We had references to law school exams and I love the fact that I thought there was, were great analysis yesterday, and I appreciate all of that, but I want to focus today on my section, on what you’re being asked to do. You are being asked to remove a duly elected president of the United States and you’re being asked to do it in an election year. In an election year.
Jay Sekulow: (08:44)
There are some of you in this chamber right now that would rather be someplace else, and that’s why we’ll be brief. I understand. You’d rather be someplace else. Why would you rather be someplace else? Because you’re running for president, the nomination of your party. I get it. But this is a serious deliberative situation. You’re being asked to remove a duly elected president of the United States. That’s what the articles of impeachment call for, removal.
Jay Sekulow: (09:19)
So we had a special council and we got the report. And just for a moment, putting yourselves in the shoes of this president or any president that would be under this situation. You’re number four at the Department of Justice, his wife is working for the firm that’s doing the opposition research on him and is communicating with the foreign former spy, Christopher Steele, to put together the dossier. And it’s being handled by Christopher Steele through Nellie or to her husband, then the fourth ranking member at the Department of Justice, Bruce Ohr. And all of this is going on and he doesn’t want to tell. And he’s testified to this, he doesn’t want to tell everybody what he’s doing cause he’s afraid he might have to stop, might have to stop.
Jay Sekulow: (10:15)
How did this happen? This is the Federal Bureau of Investigation. And then, we ask why is the president concerned about advice he’s being given? Put yourself in his shoes. Put yourself in his shoes.
Jay Sekulow: (10:39)
We’ve given you and our approach has been to give an overview and to be very specific. To remove a duly elected president, which is what you’re being asked to do, for in essentially, policy disagreements. You heard a lot about policy, although the one that I still, I-I, it still troubles me and I’m like, this idea that the president, it was said by several of the managers, is only doing these things for himself. Understanding what is going on in the world today as we’re here. They raised it, by the way. I’m not, I’m not trying to be disrespectful. I’m, they raised it. This president is only doing things for himself while the leaders of opposing parties, by the way, at the highest level to obtain peace in the Middle East, to say you’re only doing that for yourself. I think the irony of that, that those statements were made while all of that was going on and, and other acts that this body’s passed, some of it bipartisan, to help the American people.
Jay Sekulow: (11:49)
Policy differences. Those policy difference cannot be utilized to destroy the separation of powers. House managers spoke for, I know we’ve had disagreements on the time. It was 21 hours or 23 hours. They spoke during their time. A lot of time, most of it attacking the president, policy decisions. They didn’t like what they heard. They didn’t like there was a pause on foreign aid. I’d laid out before that there was pauses on all kinds of foreign aid. It’s not the first president to do it.
Jay Sekulow: (12:26)
But the one thing I, I’m still trying to understand from the manager’s perspective, and maybe it’s not fair to ask the managers because you’re not the, you’re not the leader of the, of the House. But remember the whole idea that this was a dire national security threat, a danger to our nation? We had to get this over here right away. It had to be done before Christmas. It was so important. It was so significant. The country was in such jeopardy. The jeopardy was so serious that it had to be done immediately. Let’s hold onto the articles of impeachment for a month to see if this House could force the Senate to adopt rules that they wanted, which is not the way the Constitution is set up. But it was such a dire emergency, it was so critical for our nation’s national interest that we could hold them for 33 days. Danger, danger, danger. That’s politics.
Jay Sekulow: (13:37)
As I said, you’re being called upon to, to remove the duly elected president of the United States. That’s what these articles of impeachment call for. They never really answered the question of why they thought there was such a national emergency. Maybe they will during questions. I don’t know. There was such a national emergency, they never did explain why it was that they waited. They certainly didn’t wait to have the proceedings, as my colleagues have laid out. I mean, those proceedings moved in record time. I suspect that we’ve been here more than the, the, the House actually considered the actual articles of impeachment. Is that the way the Constitution is supposed to work? Is that the design of the Constitution?
Jay Sekulow: (14:28)
And then, their question of course came up and, and yesterday on the whole situation with Burisma and the Bidens and that whole issue. And my colleagues went through that a great deal and I’m not going to do that. But do, do we have a, like are we in a situation, we used to call this in free speech cases, like a free speech zone. You could have your free speech activities over here. You can’t have them over there. Do we have like a, a Biden-free zone? And what, was that what this was?
Jay Sekulow: (15:01)
And was that what this was? You mention someone, or you’re concerned about a company, and it’s now off limits. You can impeach the president of the United States for asking a question? I think we significantly showed the question. I’m not going to go through a detail by detail analysis of the facts. To go through. You heard a lot of new facts yesterday in our presentation. Saturday, what we were pointing to is a very quick overview and then yesterday we spent the day and we appreciate everybody’s patience on that, going through the facts. They showed you this but they didn’t show you that. The facts are important though. Because facts have legal ramifications. Legal ramifications impact the decisions you make. So I don’t take facts lightly and I certainly don’t take the constitutional mandate lightly and we can’t.
Jay Sekulow: (16:12)
The facts we demonstrated yesterday and briefly on Saturday demonstrate that there was in fact a proper governmental interest in the questions that the president asked, and the issues that the president raised on that phone call. A phone call. Now, put your feet in the shoes of the president. Put yourself in the president’s position. Do you think he thought when he was on the call it was him and President Zelensky he was talking to and that was it? Or it was at sometime I heard one commentator said it was people listening in on the call, the president and 3000 of his closest friends. Let’s be realistic. The president of United States knew he was on that call there were a lot of people listening from our side and from their side. So he knew what he was saying. He said it. We released a transcript of it. The facts on the call that had been kind of the focus of all of this really focused on foreign policy initiatives, both in Ukraine and around the globe. They talked about other countries and other countries. The president has been very concerned about other countries carrying some of the financial load here, not just the United States. That’s a legitimate position for a president to take. If you disagree with it, you have the right to do that, but he is the president. As my colleague Deputy White House Counsel Philbin just said, that’s the Executive Branch prerogative. That is your constitutional appropriate role. So the call is well documented. There were lots of people on the call.
Jay Sekulow: (18:08)
The person that would be on the other end of the quid pro quo, if it existed, would have been President Zelensky. But President Zelensky and we already laid out the other officials from Ukraine, have repeatedly said there was no pressure. It was a good call. They didn’t even know there was a pause in the aid. All of that is well documented. I’m not going to go through each and every one of those facts. We did that over the last several days. President Zelensky’s senior advisor, Andriy Yermak was asked if he ever felt there was a connection between military aid and the request for investigations, and he was adamant that we never had that feeling and we did not have the feeling that this aid was connected to any one specific issue. This is coming from the people who were receiving the aid.
Jay Sekulow: (19:10)
So we talk about this whole quid pro quo, and that was a big issue. That’s how this actually, before it became a impeachment proceeding, there was, as the proceedings were beginning in the House Permanent Select Committee on Intelligence under Chairman Schiff’s role. There was all these discussions, is it a quid pro quo? Was it extortion, was it bribery? What was it? And we are clear in our position that there was no quid pro quo. But then yesterday my co-counsel, Professor Alan Dershowitz explained last night that these articles must be rejected and he’s talking about from a constitutional framework.
Jay Sekulow: (19:59)
Even if there was a quid pro quo, which we have clearly established, there was not. And this is what he said, and I’m going to quote it verbatim, “The claim that foreign policy decisions can be deemed abuses of power based on subjective opinions about mixed or sole motives that the president was interested only in helping himself demonstrate the dangers of employing the vague subjective and politically malleable phrase ‘abuse of power’ as a constitutionally permissible criteria for the removal of a president.” He went on to say, “Now it follows from this that if a president, any president were to have done what the Times reported about the content of John Bolton’s manuscript, that would not constitute an impeachable offense.”
Jay Sekulow: (20:56)
I’m quoting exactly from Professor Dershowitz. He says, let me repeat it. “Nothing in the Bolton revelations, even if true,” even if true “would rise to the level of abuse of power or an impeachable offense that is clear from history. That is clear from the language of the Constitution. You cannot turn conduct that is not impeachable into impeachable conduct simply by using words like quid pro quo and personal benefit. It is inconceivable that the framers would have intended to so politically loaded and promiscuously deployed a term as abuse of power to be weaponized,” again, Professor Dershowitz, “as a tool of impeachment. It is precisely the kind of vague, open-ended and subjective term the founders and the framers feared and rejected.”
Jay Sekulow: (21:51)
Now, to be specific, you cannot impeach a president on an unsourced allegation, but what Professor Dershowitz was saying, even if everything in there was true, it constitutionally doesn’t rise to that level. But I want to be clear on this because there’s a lot of speculation out there. With regard to what John Bolton has said, which referenced a number of individuals. We’ll start with the president. Here’s what the president said in response to that New York Times piece, “I never told John Bolton that the aid Ukraine was tied to investigations into Democrats including the Bidens. In fact, he never complained about this at the time of his very public termination. If John Bolton said this, it was only to sell a book. The Department of Justice. While the Department of Justice has not reviewed Mr. Bolton’s manuscript, the New York Times account of his conversation grossly mischaracterizes what Attorney General Barr and Bolton discussed.”
Jay Sekulow: (23:01)
“There was no discussion of personal favors or undue influence on investigations, nor did the attorney general state that the president’s conversations with foreign leaders were improper. The vice president’s chief of staff issued a statement in every conversation with the president and the vice president in preparation for our trip to Poland.” Remember that was the trip that was being planned for the meeting with President Zelensky. “The president consistently expressed his frustration that the United States was bearing the lion’s share of responsibility for aid to Ukraine, and that European nations weren’t doing their part. The president also expressed concerns about corruption in Ukraine and at no time did I hear him tie Ukraine aid to investigations into the Biden family or Burisma.”
Jay Sekulow: (23:56)
That was the response. Responding to an unpublished manuscript that maybe some reporters have an idea of maybe what it says. I mean, that’s what the evidence, if you want to call that evidence, I don’t know what you’d call that. I’d call it inadmissible, but that’s what it is. To argue that the president is not acting in our national interest and is violating his oath of office, which the managers have put forward is wrong based on the facts and by the way the Constitution is designed. And when you look at the fullness of the record of their witnesses, their witnesses, the witnesses’ statements, the transcripts, there’s one thing that emerges.
Jay Sekulow: (24:53)
There is no violation of law. There’s no violation of the Constitution. There is a disagreement on policy decisions. Most of those that spoke at your hearings did not like the president’s policy. That’s why we have elections. That’s why policy differentials and differences are discussed. But to have a removal of a duly elected president based on a policy disagreement that is not what the framers intended. And if you lower the bar that way, danger, danger, danger, because the next president or the one after that, he or she will be held to that same standard. I hope not. I pray not. That that’s not what happens, not just for the sake of my client, but for the Constitution. You know, Professor Dershowitz gave a list of presidents from Washington to where we are today, who wonder that standard that they are proposing could be subject to abuse of power or obstruction of Congress.
Jay Sekulow: (26:21)
Look, we know that what this is is not about the president pausing aid to Ukraine. It’s really not about a phone call. It’s about a lot of attempts on policy disagreements that are not being debated here. My goodness. How much time? How much time has been spent in the House of Representatives hoping they were hoping that the Mueller probe would result in, maybe I’m not going to play you. I was thinking about it. Playing all the clips from all the commentators the day after Bob Mueller testified. Bob Mueller was unable to answer under his examination basic and fundamental questions he had to correct himself actually. He had correct himself before the Senate for something he said before the House.
Jay Sekulow: (27:36)
So that’s what the president’s been living with. And then we’re here today arguing about what? A phone call to Ukraine? Or Ukraine aid being held or a question about corruption or a question about corruption that happens to involve a high public profile figure? I mean is that what this is? And is that where we are? And then what do we find out? The aid was released. It was released in an orderly fashion. The reform president, President Zelinsky wins. But there was a question whether his party would take the Parliament. It did. They worked late into the evening with a desire to put forward reforms. So everybody was waiting, including, and you heard the testimony from, I will say their witnesses. You heard the testimony, everybody was concerned about Ukraine.
Jay Sekulow: (28:34)
Everybody was concerned about whether these reforms could actually take place. Everybody was concerned about it. So you hold back, didn’t affect anything that was going on in the field. We heard Mr. Crow worrying about the soldiers. I understand that, I appreciate that. But none of that aid was affecting what was going on on the battlefield right then or for the next four months because it was future aid. And are we having an impeachment proceeding because aid came out three weeks before the end of the fiscal year? Or a six minute phone call?
Jay Sekulow: (29:18)
It boils down, that’s what this is. It’s interesting to me that everybody is saying, “Well, the aid was finally released September 11th only because some of the committee and the whistleblower who we’d never seen.” Mr. Philbin dealt with that in great detail. I’m not going to go over that again. But you know, the new High Court, the anti-corruption court wasn’t established and did not sit until September 5th, 2019. So while the president of Ukraine was trying to get reforms put in place, the court that was going to decide corruption issues was not set until September 5th.
Jay Sekulow: (30:03)
Not set until September 5th. I want you to think about this for a moment, too. They needed a high court of corruption, for corruption. Think about that for a moment. Now, that’s good that they recognized it, but remember when I said the other day, you don’t wave a magic wand and now Ukraine doesn’t have a corruption problem? The high court of corruption, which they have to have, because it’s not just past corruption. They’re concerned about ongoing corruption issues. And you could put all of your witnesses back under oath in the next hearings you’ll have, when this is all over, and you’re going to be back in the House and we’ll be doing this again. Put them all back under oath and ask them, Mr. Schiff, is there a problem of corruption in Ukraine? And if they get up there and say, “No, everything is great now,” hallelujah. But I suspect they’re going to say, “We’re working really hard on it.” And I believe them, but this idea that it was just vanished and now we’re back into everything’s fine. It’s absurd.
Jay Sekulow: (31:17)
Mr. Morrison testified that while the developments were taking place, the Vice President also met with President Zelensky in Warsaw. That was the meeting of September 1st. The one, by the way, where the Vice President’s office said in response to this New York Times [inaudible 00:01:34], nobody told him about aid being held or linked to investigations.
Jay Sekulow: (31:41)
Are you going to stop? Are you going to allow proceedings on impeachment to go from a New York Times report about someone that says what they hears in a manuscript? Is that where we are? I don’t think so. I hope not.
Jay Sekulow: (32:04)
What did Morrison say? He heard firsthand that the new Ukraine administration was taking concrete steps to address corruption. That’s good. He advised the President that the relationship with Zelensky is one that could be trusted. Good.
Jay Sekulow: (32:21)
President Zelensky also agreed with Vice President Pence, this is interesting, that the Europeans should be doing more, and related to Vice President Pence conversations he’d been having with European leaders about getting them to do more.
Jay Sekulow: (32:33)
In sum, the President raised two issues he was concerned with to get them addressed. Now I’ve already went over… Again, this is just the closing moments here of our portion of this proceeding. Aid was withheld or paused. Put on a pause button, not just for Ukraine. Afghanistan, South Korea, El Salvador, Honduras, Guatemala, Lebanon, and Pakistan. And I’m sure I am leaving countries out. But do you think the American people are concerned? If the president says before we give a country, I don’t know, $550 million, some countries only $400 million, we’d like to know what they’re doing with it. You’re supposed to be the guardians of the trust here. It’s the taxpayers’ money we’re spending.
Jay Sekulow: (33:42)
There was a lot of testimony from Dr. Fiona Hill, John Bolton’s deputy. Here’s what she said about aid is being held. This is her testimony. There was a freeze put on all kinds of aid and assistance because it was in the process at the time of an awful lot of reviews of foreign assistance. Oh, you mean there was a policy within the administration to review foreign assistance and how we’re doing it because we spend a lot of money. And by the way, I’m not complaining about the money. I don’t think anybody doesn’t want to help, but we do need to know what’s going on, and those are valid and important questions.
Jay Sekulow: (34:22)
Manager Crow told you the President’s Ukraine policy was not strong against Russia, but Ambassador Yovanovitch stated the exact opposite. She said in her deposition that our country’s Ukraine policy under President Trump actually, in her words, got stronger than it was under President Obama.
Jay Sekulow: (34:44)
So again, policy disagreements, disagreements on approach. Have elections. That’s what we do in our republic. For three long days, House managers presented their case by selectively showing parts of testimony. Good lawyers show parts of testimony. You don’t have to show the whole thing. But other good lawyers show the rest of the testimony, and that’s what we sought to do. To give you a fuller view of what we saw as the glaring omissions by my colleagues, the House managers.
Jay Sekulow: (35:33)
The legal issues here are the constitutional ones. And I have been, I think, pretty clear over the last week starting when we had the motions arguments, that my concern about the constitutional obligations that we’re operating under. I have been critical of Manager Nadler’s executive privilege and other nonsense. I want you to look at it this way. Take out executive privilege. First Amendment free speech and other nonsense. The free exercise of religion and other nonsense. The rights to due process and other nonsense. The rights to equal protection under the laws and other nonsense. You can’t start doing that. You would not do that. No administration has done that. In fact, since the first administration, George Washington. They wanted information. He thought it was privileged. He said it was executive privilege, but let’s not start calling constitutional rights other nonsense, lumping them together. Of course, this is from a House of Representatives that actually believes the attorney-client privilege doesn’t apply, which should scare every lawyer in Washington DC, but more scary to the lawyers will be for their clients. They say that in writing, in letters. They don’t hide it. I would ask them. I’m not going to. It’s not my privilege to do that. Do you really believe that? Do you really believe that the attorney-client privilege does not apply in a congressional hearing? You really believe that? Because then if it doesn’t apply, then there is no attorney-client privilege. Or is that the attorney-client privilege and other nonsense?
Jay Sekulow: (37:47)
Danger, danger, danger. We believe that Article One fails constitutionally. The President has constitutional authority to engage and conduct foreign policy and foreign affairs. It is our position legally. The President at all times acted with perfectly legal authority, inquired of matters in our national interest, and having received assurances of those matters, continued his policy that his administration put forward of what really is unprecedented support for Ukraine, including the delivery of military aid package that was denied to the Ukrainians by prior administrations.
Jay Sekulow: (38:34)
Some of the managers right here, my colleagues at the other table, voted in favor of those. Wanted Javelin anti-tank missiles for Ukraine. Some of the members here did not. Didn’t want to do that. Voted against that. I’m glad we gave it to them. I’m glad we allowed them to purchase Javelins. I told you I never served in the military. I have tremendous, tremendous respect for the men and women that protect our freedom each and every day. Tremendous respect for what they are doing and continue to do. But this president actually allowed the Javelins to go. Some of you like that idea, some of you did not. It’s policy difference. Were you going to impeach President Obama because he did not give them lethal aid? No, nor should have you. You should not do that. It’s policy difference. Policy differences do not rise to the level of constitutionally mandated or constitutional applications for removal from office. It is policy differences.
Jay Sekulow: (39:55)
By the way, it’s not just on lethal weapons. In President Obama’s, I said withheld aid. He had the right to do that. You’ve allowed him to do that. Oh, but we don’t like that this president did it, so the rules change. So this president’s rules are different than… He has a different set of standards he has to apply than what you allowed the previous administration to apply, and you know what, or the future administration to apply. That’s the problem with these articles. We’ve laid out, I believe, a compelling case on what the Constitution requires. When they were in the House of Representatives putting this together, did they go through a constitutionally mandated accommodations process to see if there was a way to come up with something? No, they did not. Did they run to court? No. And the one time it was about to happen, they ran the other way.
Jay Sekulow: (41:09)
Separation of powers means something. It’s not separation of powers and other nonsense. If we’ve reached now, at this very moment in the history of our republic, a bar of impeachment, because you don’t like the President’s policies or you don’t like the way he undertook those policies, because we hear a lot about policies. If partisan impeachment is now the rule of the day, which these members and members of this Senate said should never be the rule of the day. My goodness, they said it some of them five months ago. But then we had the national emergency, a phone call. It’s an emergency, except we’ll just wait.
Jay Sekulow: (42:12)
But if partisan impeachment based on policy disagreements, which is what this is, and personal presumptions or newspaper reports and allegations in a unsourced… Maybe this is in somebody’s book who’s no longer at the White House. That becomes the new norm. Future presidents, Democrats, Republicans, will be paralyzed the moment they are elected before they can even take the oath of office. The bar for impeachment cannot be set this low.
Jay Sekulow: (42:57)
Majority Leader McConnell, Democratic Leader Schumer, House Managers, members of the Senate, danger, danger, danger. These articles must be rejected. The Constitution requires it. Justice demands it.
Pat Cipollone Closing Argument
Pat Cipollone: (00:00)
Thank you, Mr. Chief Justice, members of the Senate. Well, I had kind of a lengthy presentation prepared, but I think you’ve heard a lot from our side, and I think we’ve made our case, so I just want to leave you with a couple of points. First of all, thank you Mr. Leader and thank you, Democratic Leader Schumer, and all of you for the privilege of speaking on the floor of the Senate and for your time and attention. We really appreciate it. We’ve made three basic points. One, all you need in this case is the constitution and your common sense. You just look at the articles of impeachment. The articles of impeachment fall far short of any constitutional standard, and they are dangerous. If you look to the words from the past that I think are instructive, as I said last night, they’re instructive because they were right then, and they’re right now. I’ll leave you with some of those words.
Jerry Nadler: (01:16)
There must never be a narrowly voted impeachment or an impeachment supported by one of our major political parties and opposed by the other. Such an impeachment will produce divisiveness and bitterness in our politics for years to come and will call into question the very legitimacy of our political institutions.
Zoe Lofgren: (01:34)
This is unfair to the American people. By these actions, you would undo the free election that expressed the will of the American people in 1996. In so doing, you will damage the faith the American people have in this institution and in the American democracy. You will set the dangerous precedent that the certainty of presidential terms, which has so benefited our wonderful America, will be replaced by the partisan use of impeachment. Future presidents will face election, then litigation, then impeachment. The power of the president will diminish in the face of the Congress, a phenomena much feared by the founding fathers.
Ed Markey: (02:13)
This is a constitutional amendment that we are debating, not an impeachment resolution. The Republicans are crossing out the impeachment standard of “high crimes and misdemeanors,” and they are inserting the words, “any crime or misdemeanor.” We are permitting a constitutional coup d’etat, which will haunt this body and our country forever.
Bob Menendez: (02:47)
I warn my colleagues that you will reap the bitter harvests of the unfair partisan seeds you sold today. The constitutional provision for impeachment is a way to protect our government and our citizens, not another weapon in the political arsenal.
Chuck Schumer: (03:04)
I expect history will show that we’ve lowered the bar on impeachment so much. We have broken the seal on this extreme penalty so cavalierly that it will be used as a routine tool to fight political battles. My fear is that when a Republican wins the White House, Democrats will demand payback.
Pat Cipollone: (03:29)
You were right, but I’m sorry to say you were also prophetic. I think I couldn’t say it better myself, so I won’t. You know what the right answer is in your heart. You know what the right answer is for our country. You know what the right answer is for the American people. What they are asking you to do is to throw out a successful president on the eve of an election with no basis and in violation of the constitution. It would dangerously change our country and weaken forever all of our democratic institutions. You all know that’s not in the interest of the American people. Why not trust the American people with this decision? Why tear up their ballots? Why tear up every ballot across this country? You can’t do that. You know you can’t do that.
Pat Cipollone: (04:33)
So I ask you to defend our constitution, to defend fundamental fairness, to defend basic due process rights, but most importantly, most importantly, to respect and defend the sacred right of every American to vote and to choose their president. The election is only months away. The American people are entitled to choose their president. Overturning the last election and massively interfering with the upcoming one would cause serious and lasting damage to the people of the United States and to our very country. The Senate cannot allow this to happen. It is time for this to end here and now.
Pat Cipollone: (05:27)
So we urge the Senate to reject these articles of impeachment for all of the reasons we have given you. You know them all. I don’t need to repeat them. They’ve repeatedly said over and over again a quote from Benjamin Franklin, “It’s a Republic if you can keep it,” and every time I heard it, I said to myself, “It’s a Republic if they let us keep it,” and I have every confidence in your wisdom, you will do the only thing you can do, what you must do, what the constitution compels you to do. Reject these articles of impeachment for our country and for the American people.
Pat Cipollone: (06:27)
It will show that you put the constitution above partisanship. It will show that we can come together on both sides of the aisle and end the era of impeachment for good. You know it should happen. You know it should happen. It will allow you all to spend all of your energy and all of your enormous talent and all of your resources on doing what the American people sent you here to do: to work together, to work with the president, to solve their problems, so this should end now as quickly as possible. Thank you again for your attention. I look forward to answering your questions, and with that, that ends our presentation. Thank you very much.