Trump Impeachment Lawyer Defense Argument Transcripts: Monday January 27 Ken Starr, Bondi, Dershowitz and more

Ken Starr Defense Argument

Ken Starr: (00:00) Thank you, Mr. Chief Justice, House managers and staff, members of the Senate, the Majority Leader and the Minority Leader. At the beginning of these proceedings on January 16, the Chief Justice administered the oath of office to the members of this body and then again on Tuesday. In doing so, the Chief Justice was honoring the words of our Constitution, Article 1 Section 3. We all know the first sentence of that article by heart, "The Senate shall have the sole power to try all impeachments." But, then the Constitutional text goes on to say this, "When sitting for that purpose, they shall be on earth, oath or affirmation." That oath or affirmation in turn requires each member of the Senate to do impartial justice. Ken Starr: (01:19) Now, this Constitutionally-administered oath or affirmation has been given in every proceeding in this body since 1798. Indeed to signify the importance of the occasion, the Senate's more recent traditions call for you as you're did to sign the book. That book is not simply part of the record, it's entrusted to the National Archives. In contrast, members of the House of Representatives do not take an oath in connection with impeachment. The framers of our Constitution well knew when an oath or affirmation should be required. The Senate, yes, the House no, and thus each member of the world's greatest deliberative body now has special indeed, unique, duties and obligations, duties imposed under our founding document. Ken Starr: (02:33) During the Clinton impeachment trial 21 years ago in this chamber, the Chief Justice of the United States ruled in response to an objection that was interposed by Senator Tom Harkin of Iowa. "The Senators are not sitting as jurors," Senator Harkin noted. The Chief Justice agreed with that proposition. Rather, the Senate is a court. In fact, history teaches us that for literally decades, this body was referred to in this context as the high court of impeachment. We're not in a legislative chamber during these proceedings. We're in a tribunal. We're in court. In Federalist 78, Alexander Hamilton, who's been quoted frequently in these proceedings, but in Federalist 78, he was describing the role of courts, your role. In doing so, he distinguished between what he called the exercise of judgment on the one hand, which is what courts do and the exercise of will or policy preferences, if you will, on the other hand, that's what legislative bodies do. According to Hamilton, courts were to be in his word, impartial. There's that word again. Ken Starr: (04:13) That's a daunting task for judges struggling to do the right thing to be impartial, equal justice under law. It's certainly hard in life to be impartial. In politics it's not even asked of one to be impartial, but that's the task that the Constitution chose to impose upon each of you. Significantly in this particular juncture in America's history, the Senate is being called to sit as the high court of impeachment all too frequently. Indeed, we are living in what I think can aptly be described as the age of impeachment. Ken Starr: (05:06) In the House, resolution after resolution, month after month has called for the President's impeachment. How did we get here with presidential impeachment invoked frequently and it's inherently destabilizing as well as acrimonious way? Briefly told, the story begins 42 years ago. In the wake of the long national nightmare of Watergate, Congress and President Jimmy Carter collaboratively ushered in a new chapter in America's Constitutional history. Together in full agreement, they enacted the Independent Counsel provisions of the Ethics in Government Act of 1978. But the new chapter was not simply the age of independent councils, it became unbeknownst to the American people, the age of impeachment. During my service in the Reagan administration as counselor and chief of staff to Attorney General William French Smith, the Justice Department took the position that however well intentioned, the Independent Counsel provisions were unconstitutional. Why? In the view of the department, those provisions intruded into the rightful domain and prerogative of the Executive Branch of the presidency. The Justice Department's position was eventually rejected by the Supreme Court, but most importantly, in helping us understand this new era in our country's history. Ken Starr: (07:04) Justice Antonin Scalia was in deep dissent. Among his stinging criticisms of that law, Justice Scalia wrote this, "The context of this statute is acrid with the smell of threatened impeachment." Impeachment, Justice Scalia echoed the criticism of the court in which I was serving at the time, the District of Columbia Circuit, which had actually struck down the law as unconstitutional in a very impressive opinion by renowned Judge Lawrence Silverman. Why? Why would Justice Scalia refer to impeachment? This was a reform measure. There would be no more Saturday night massacres. The firing of special prosecutor, as he was called, Archibald Cox by President Nixon. Government would now be better, more honest, greater accountability and the Independent Counsel would be protected. Ken Starr: (08:20) But the word impeachment haunts that dissenting opinion. It's not hard to discover why, because the statute by its terms expressly directed the Independent Counsel to become, in effect, an agent of the House of Representatives. To what end? To report to the House of Representatives when a very low threshold of information was received that an impeachable offense, left undefined, may have been committed. To paraphrase President Clinton's very able counsel at the time, Bernie Nussbaum, "This statute is a dagger aimed at the heart of the presidency." Ken Starr: (09:17) President Clinton nonetheless signed the reauthorized measure into law. The nation then went through the long process known as Whitewater resulting in the findings by the office, which I led, the Office of Independent Counsel, in a written report to the House of Representatives. That referral to Congress was stipulated in the Ethics in Government Act of 1978. To put it mildly, Democrats were very upset about what had happened. They then joined Republicans across the aisle, who for their part, had been outraged by an earlier independent counsel investigation, that of a very distinguished former judge, Lawrence Walsh. Ken Starr: (10:12) During the Reagan administration, Judge Walsh's investigation of what became known to the country as Iran-Contra, spawned enormous criticism on the Republican side of the aisle, both as to the investigation itself, but also as to the statute. The acrimony surrounding Iran-Contra and then the impeachment and the trial and President Clinton's acquittal by this body led inexorably to the end of the Independent Counsel era. Enough was enough. Ken Starr: (10:56) Living through that wildly controversial 21- year bold experiment with the Independent Counsel statute, Congress in a bipartisan way had a change of heart. It allowed the law to expire in accordance with its terms in 1999. That would be a well-intentioned reform measure died a quiet and uneventful death. It was promptly replaced by Justice Department internal regulations promulgated by Attorney General Janet Reno during the waning months of the Clinton administration. One can review those regulations and see no reference to impeachment, none. No longer were the poison pill provisions of presidential impeachment part of America's legal landscape. They were gone. The Reno regulations seem to signal a return to traditional norms. Impeachment would no longer be embedded in the actual laws of the land, but returned to the language of the Constitution. Ken Starr: (12:23) But in the meantime, America's Constitutional DNA and its political culture had changed. Even with the dawn of the new century, the 21st century, impeachment remained on the lips of countless Americans and echoed frequently in the people's House. The impeachment habit proved to be hard to kick. Ken Starr: (12:51) Ironically while this was happening here at home, across the Atlantic, the use of impeachment as a weapon disappeared. In the United Kingdom, from which of course we inherited the process, impeachment was first used more than two centuries before those first settlers crossed the Atlantic. But upon thoughtful examination, a number of modern-day Parliamentary committees looked and found impeachment to be obsolete. Among other criticisms, members of Parliament came to the view that the practice, which had last been attempted in Britain in 1868, fails to meet modern procedural standards of fairness. Fairness, as Sir William McKay recently remarked, " Impeachment in Britain is dead." Yet here at home, in the world's longest standing Constitutional Republic, instead of a once in a century phenomenon, which it had been, presidential impeachment has become a weapon to be wielded against one's political opponent. Ken Starr: (14:27) In her thoughtful Wall Street Journal op-ed a week ago Saturday, Peggy Noonan wrote this, "Impeachment has now been normalized. It won't be a once in a generation act, but an every administration act. Democrats will regret it when Republicans are handing out the pens, the pens of the signing ceremony." Ken Starr: (14:57) When we look back down the corridors of time, we see that for almost our first century as a Constitutional Republic, the sword of presidential impeachment remained sheathed. Had there been controversial presidents, oh yes, indeed, think of John Adams and the Alien and Sedition Acts, think of Andrew Jackson and Henry Clay. Were partisan passions occasionally inflamed during that first century? Of course. Ken Starr: (15:33) Unless there'd be any doubt, the early Congress's full well knew how to summon impeachment to the floor, including against a member of this body, Senator William Blount of Tennessee. During the Jefferson administration, the unsuccessful impeachment of Justice Samuel Chase, a surly and partial jurist who was nonetheless acquitted by this chamber, became an early landmark in maintaining the treasured independence of our federal judiciary. It took the national convulsion of the Civil War, the assassination of Mr. Lincoln, and the counter-reconstruction measures aggressively pursued by Mr. Lincoln's successor, Andrew Johnson, to bring about the nation's very first presidential impeachment. Ken Starr: (16:35) Famously of course, your predecessors in this high court of impeachment acquitted the unpopular and controversial Johnson, but only by virtue of senators from the party of Lincoln breaking ranks. It was over a century later that the nation returned to the tumultuous world of presidential impeachment necessitated by the rank criminality of the Nixon administration. In light of the rapidly unfolding facts, including uncovered by the Senate Select Committee, and an overwhelmingly bipartisan vote of 410 to four, the House of Representatives authorized an impeachment inquiry. Ken Starr: (17:29) In 1974, the House Judiciary Committee after lengthy hearings, voted again in a bipartisan manner to impeach the President of the United States. Importantly, President Nixon's own party was slowly but inexorably moving toward favoring the removal of their chosen leader from the nation's highest office who had just won re-election by a landslide. It bears emphasis before this high court, this was the first presidential impeachment in over 100 years. It also bears emphasis, it was powerfully bipartisan. Ken Starr: (18:21) It wasn't just the vote to authorize the impeachment inquiry. Indeed the House Judiciary Chair, Peter Rodino of New Jersey, was insistent that to be accepted by the American people, the process had to be bipartisan. Like war, impeachment is hell, or at least presidential impeachment is hell. Those of us who lived through the Clinton impeachment, including members of this body, full well ... Ken Starr: (19:03) Including members of this body full-well understand that a presidential impeachment is tantamount to domestic war albeit thankfully, protected by our beloved first amendment, a war of words and a war of ideas. But it's filled with acrimony and it divides the country like nothing else. Those of us who lived through the Clinton impeachment understand that at a deep and personal way. Ken Starr: (19:32) Now in contrast, wisely and judiciously conducted, unlike the United Kingdom, impeachment remains a vital and appropriate tool in our country to serve as a check with respect to the federal judiciary. After all in the Constitution's brilliant structural design, federal judges know as this body full-well knows from its daily work, a pivotally important feature. Independence from politics, exactly what Alexander Hamilton was talking about in Federalist 78, during the Constitution's term, good behavior in practical effect, life tenure. Impeachment is thus a very important protection for we the people against what could be serious article three wrongdoing within that branch. And so it is that when you count of the 63 impeachment inquiries authoried by the House of Representatives over our history, only eight have actually been convicted in this high court and removed from office and each and every one has been a federal judge. Ken Starr: (21:05) This history leads me to reflect on the nature of your weighty responsibilities here in this high court as judges in the context of presidential impeachment, the fourth presidential impeachment. I'm counting the Nixon proceedings in our nation's history, but the third over the past half century. And I respectfully submit that the Senate in its wisdom would do well in its deliberations to guide the nation in this world's greatest deliberative body to return to our country's traditions when presidential impeachment was truly a measure of last resort. Members of this body can help and in this very proceeding, restore our constitutional and historical traditions. Above all by returning to the text of the Constitution itself. It can do so by its example here in these proceedings in weaving the tapestry of what can rightly be called the common law of presidential impeachment. That's what courts do. They weave the common law. There are indications within the constitutional text, I'll come to our history that this fundamental question is appropriate to be asked. You're familiar with the arguments. Was there a crime or other violation of established law alleged? Let's turn to the text. Ken Starr: (22:59) Throughout the Constitution's description of impeachment. The text speaks always, always, without exception in terms of crimes. It begins of course with treason, the greatest of crimes against the state and against we the people, but so misused as a bludgeoned and parliamentary experiences to lead the founders to actually define the term in the Constitution itself. Bribery, an iniquitous form of moral and legal corruption and the basis of so many of the 63 impeachment proceedings over the course of our history. Again, almost all of them against judges. Ken Starr: (23:49) And then the mysterious terms, other high crimes and misdemeanors. Once again, the language is employing the language of crimes. The Constitution is speaking to us in terms of crimes. Each of those references when you count them, count seven, count eight supports the conclusion that impeachments should be evaluated in terms of offenses against established law, but especially with respect to the presidency where the Constitution requires the chief justice of the United States and not a political officer, no matter how honest, no matter how impartial to preside at trial. Guided by history, the framers made a deliberate and wise choice to cabin, to constrain, to limit the power of impeachment. Ken Starr: (24:55) And so it was on the very eve of the impeachment of president Andrew Johnson, the eminent scholar and dean of the Columbia Law School, Theodore Dwight, wrote this, "The weight of authority is that no impeachment will lie except for a true crime, a breach of the law, which would be the subject of indictment." I'm not making that argument. I'm noting what he is saying. He didn't over argue the case. He said, " The weight of authority." The weight of authority. Ken Starr: (25:37) And so this issue is a weighty one. Has the House of Representatives, with all due respect, in these two articles of impeachment charged a crime or violation of established law or not? This is, I don't want to over argue, an appropriate and weighty consideration for the Senate. But especially as I'm trying to emphasize in the case, not of a federal judge, but of the president. Courts consider prudential factors and there is a huge prudential factor that this trial is occurring in an election year. When we the people in a matter of months, we'll go to the polls. And developing the common law of presidential impeachment, this threshold factor consistent with the constitutional text consistent with the nation's history in presidential impeachments as I'll seek to demonstrate serves as a clarifying and stabilizing element. Ken Starr: (26:49) It increases predictability. To do what? To reduce the profound danger that a presidential impeachment will be dominated by partisan considerations, precisely the evil that the framers warned about. And so to history. History bears out the point, the nation's most recent experience, the Clinton impeachment, even though severely and roundly criticized, charge crimes. These were crimes proven and the crucible of the House of Representatives' debate beyond any reasonable observer's doubt. So too the Nixon impeachment, the articles charged crimes. What about article two and Nixon, which is sometimes referred to as abusive power? Was that the abuse of power article, the precursor to article one that is before this court? Not at all. When one returns to article two and Nixon approved by a bipartisan House Judiciary Committee, article two of Nixon sets forth a deeply troubling story of numerous crimes, not one, not two, numerous crimes carried out at the direction of the president himself. And so the appropriate question, were crimes alleged in the articles in the common law of presidential impeachment? In Nixon, yes. In Clinton, yes. Here, no. A factor to be considered as the judges in the high court come as you will individually to your judgment. Ken Starr: (28:54) Even in the political cauldron of the Andrew Johnson impeachment. Article 11 charged a violation of the controversial Tenure of Office Act. You're familiar with it. And that act warrant expressly the Oval Office that its violation would constitute a high misdemeanor employing the very language of constitutionally cognizable crimes. This history represents and I believe, may it please the court, it embodies the common law of presidential impeachment. These are facts gleaned from the constitutional text and from the gloss of the nation's history and under this view, the commission of an alleged crime or violation of established law can appropriately be considered again a weighty and an important consideration and element of an historically supportable presidential impeachment. Ken Starr: (30:09) Will law professors agree with this? No. But with all due respect to the academy, this is not an academic gathering. We are in court. We're not just in court. With all due respect to the chief justice and the Supreme Court of the United States, we're in democracy's ultimate court. And the better constitutional answer to the question is provided by a rigorous and faithful examination of the constitutional text and then looking faithfully and respectfully to our history. Ken Starr: (30:55) The very divisive Clinton impeachment demonstrates that while highly relevant, the commission of a crime is by no means sufficient to warrant the removal of our duly elected president. Why? This body knows. We appoint judges and you confirm them and they're there for life, not presidents. And the presidency is unique. The presidency stands alone in our constitutional framework. Before he became the chief justice of the United States, John Marshall, then sitting as a member of the people's House made a speech on the floor of the House and there he said this, "The president is the sole organ of the nation and it's external relations and it's sole representative with foreign nations." If that sounds like hyperbole, it has been embraced over decades by the Supreme Court of the United States, by justices appointed by many different presidents. The presidency is unique. Ken Starr: (32:19) There's no other system quite like ours and it has served us well. And so as to the presidency, impeachment and removal not only overturns a national election and perhaps profoundly affects an upcoming election, in the words of Yale's Akhil Amar, it entails a risk. And these are Akhil's words, Professor Amar's words, "Grave disruption of the government." Professor Amar penned those words in connection with the Clinton impeachment. "Grave disruption of the government," regardless of what the president has done, grave disruption. We will all agree that the presidents under the text of the Constitution and its amendments are to serve out their term. Absent a genuine national consensus reflected by the two thirds majority requirement of this court that the president must go away, two thirds. In politics and in an impeachment, that's called a landslide. Ken Starr: (33:42) Here, I respectfully submit to the court that all fair-minded persons will surely agree there is no national consensus. We might wish for one, but there isn't. To the contrary. For the first time in America's modern history, not a single House member of the president's party supported either of the two articles of impeachment, not one, not in committee, not on the House floor. And that pivotal fact puts in bold relief the Peter Rodino principle, call it the Rodino Rule, impeachment must be bipartisan in nature. Again, setting as a court, this body should signal to the nation the return to our traditions, bipartisan impeachments. What's the alternative? Well, the president be king? Due oversight, the tradition of oversight, an enormous check on presidential power throughout our history and it continues available today. Ken Starr: (35:07) In Iran-Contra no impeachment was undertaken. The Speaker of the House, a Democrat, Jim Wright from Texas, from Fort Worth where the West begins, knew better. He said, "No," but as befits the age of impeachment, a House resolution to impeach president Ronald Reagan was introduced. It was filed and the effort to impeach President Reagan was supported by leading law professor, whose name you would well recognize and you'll hear it again this evening, from Professor Dershowitz. I'll leave it to him to identify, the learned professor, but the speaker of the people's House echoing Peter Rodino, said, "No." I respectfully submit that the Senate should close this chapter, this idiosyncratic chapter, on this increasingly disruptive act. This era, this age of resort to the Constitution's ultimate democratic weapon for the presidency. Let the people decide. Ken Starr: (36:34) There was a great justice who sat for 30 years, Justice John Harlan, in the mid-century of the 20th century. And in a lawsuit involving a very basic question, can citizens whose rights have clearly been violated by federal law enforcement agencies and agents bring an action for damages when Congress has not so provided no law that gave the wounded citizen a right to redress through damages? And Justice Harlan in a magnificent concurring opinion in Bivens v. Six Unnamed Federal Agents, suggested that courts, here you are, should take into consideration in reaching its judgment, their judgment, what he called factors counseling restraint. He was somewhat reluctant to say that we, the Supreme Court, should grant this right, that we should create it, when Congress has enacted and Congress could have acted, but it hadn't. But he reluctantly came to the conclusion that the Constitution itself empowered the federal courts to Ken Starr: (38:03) The constitution itself empowered the federal courts to create this right for our injured citizens, to give them redress, not just an injunctive relief, but damages, money recovery for violations of their constitutional rights. Factors, counseling, restraint. And he addressed them and he came to the view. He was so honest and said, "I came to the case with a different view, but I changed my mind and voted in favor of the Bivens family having redress against the federal agents who had violated their rights." Judging in its most impartial, elegant sense. I'm going to draw from Justice Harlan's matrix of factors, counseling, restraint, and simply identify these. I think there may be others. The articles do not charge a crime or violation of established law. I'm suggesting it's a relevant factor. I think it's a weighty factor when we come to presidential impeachment, not judicial impeachment. Secondly, the articles come to you with no bipartisan support. They come to you as a violation of what I'm dubbing the Radino rule. Ken Starr: (39:26) And third is I will now discuss the pivotally important issue of process. The second article of impeachment, obstruction of Congress. This court is very familiar with United States versus Nixon. Its unanimity in recognizing the president's profound interest in confidentiality. Regardless of the worldview or philosophy of the justice, the justices were unanimous. This is just a contrivance. It's built in to the very nature of our constitutional order. So let me comment briefly. This constitutionally based recognition of executive privilege and then companion privileges, the deliberative process privilege, the immunity of close presidential advisors from being summoned to testify. These are all firmly established in our law. If there is a dispute between the people's house and the President of the United States over the availability of documents or witnesses, and there is in each and every administration, then go to court. It really is as simple as that. I don't need to belabor the point. But here's the point I would like to emphasize. Frequently, the Justice Department advises the President of the United States that the protection of the presidency calls whatever the president might want to do as a political matter, as an accommodation of spirit of comity, to protect privileged conversations and communications. I've heard it in my two tours of duty at the Justice Department. "Don't release the documents, Mr. President. If you do, you're injuring the presidency." Ken Starr: (41:45) Go to court. We've heard concerns about the length of time that the litigation might take. Those of us who've litigated know that sometimes litigation does take longer than we would like. Justice delayed is justice denied. We would all agree with that. But our history, Churchill's Maxim, study history, our history tells us that's not necessarily so. Take by way of example the Pentagon Papers case. Orders issued, preventing and sanctioning a gross violation of the First Amendment's guarantee of freedom of the press. An order issued out of the district court June the 15th, 1971. That order was reversed in an opinion by the Supreme Court of the United States two weeks later. June the 15th. The House of Representatives could have followed that well-trodden path. It could have sought expedition. The E. Barrett Prettyman courthouse is six blocks down. The judges are there. They're all very able. They're hardworking people of integrity. Follow the path, follow the path of the law. Go to court. There would have been at least one problem, had the House seen fit to go to court and remain in court. The issue is before you. But among other flaws, the office of legal counsel determined, and I've read the opinion and I believe it's correct, that with all respect, all House subpoenaed issued prior to the adoption of House Resolution 660, which for the first time authorized the impeachment inquiry as a house. All subpoenas were invalid. They were void. Ken Starr: (44:15) With all due respect to the Speaker of the House of Representatives and all of her abilities and her vast experience, under our constitution, she was powerless to do what she purported to do. As has been said now time and again, especially throughout the fall, the Constitution does entrust the sole power of impeachment to the House of Representatives, but that's the House. It's 435 members elected from across the constitutional republic. Not one, no matter how able she may be. In the people's house, every congressperson gets a vote. We know the concept. One person, one vote. Ken Starr: (45:12) More generally, the president, as I've reviewed the record, has consistently and scrupulously followed the advice and counsel of the Justice Department, and in particular the office of legal counsel. He's been obedient. As you know, that important office, many of you have had your own experiences professionally with that office, is staffed with lawyers of great ability. It has a reputation for superb work. It has done such thoughtful work in both Democratic and Republican administrations. And the office is now headed by a brilliant lawyer who served as a law clerk to Justice Anthony Kennedy. The House may disagree with the guidance provided to the president by that office. The House frequently does disagree. But for the president to follow the guidance of the Department of Justice with respect to an inter-branch legal and constitutional dispute cannot reasonably be viewed as an obstruction, and most emphatically not as an impeachable offense. Ken Starr: (46:33) History once again is a great teacher. In the Clinton impeachment, the House Judiciary Committee rejected a draft article asserting that President Clinton, and here are the words of the draft article, "fraudulently and corruptly asserted executive privilege." Strong words. "Fraudulently and corruptly." That was the draft article. In my view, having lived through the facts, and with all due respect to the former president, he did. He did it time and again, month after month. We would go to court, we would win. And many members, not everybody, on the House Judiciary Committee agreed that the president had indeed improperly claimed executive privilege, rebuffed time and again by the judiciary. Ken Starr: (47:42) But at the end of the day, that committee, chaired, the Judiciary Committee of the House, chaired by Henry Hyde, wisely concluded that President Clinton's doing so should not be considered an impeachable offense. Here's the idea. It is not an impeachable offense for the President of the United States to defend the asserted legal and constitutional prerogatives of the presidency. This is, and I'm quoting here from page 55 of the president's trial brief, "a function of his constitutional and policy judgments." Not just a policy judgment, but a constitutional judgment. I would guide this court as it's coming through the deliberation process to read the president's trial brief with respect to process. It was justice Felix Frankfurter, confidant of FDR, brilliant jurist, who reminded America that the history of liberty is in large measure the history of process, of procedure. Ken Starr: (49:12) In particular, I would guide the high court to the discussion of the long history of the House of Representatives over two centuries in providing due process protections in its impeachment investigations. It's a richly historical discussion. The good news is you can read the core of it in four pages. Pages 62 to 66 of the trial brief puts in bold relief, I believe, an irrefutable fact. This House of Representatives, with all respect, saw fit to turn its back on its on established procedures, procedures that had been followed faithfully decade after decade, regardless of who was in control, regardless of political party. All those procedures were torn asunder, and all over the vigorous objections from the unanimous and vocal minority. Ken Starr: (50:21) I need not remind this high court that in this country minority rights are important. Minority rights should be protected. Equal justice. But then again, the House members took no oath to be impartial. The constitution didn't require them to say by oath or affirmation that will do impartial judges justice. When they chose to tear asunder their procedures, they were oathless. They could toss out their own rule book. Raw power. And here we have, tragically for the country, and I believe tragically for the House of Representatives, in article two of these impeachment articles, a runaway House. It is runaway not only from its long standing procedures, it is runaway from the constitution's demand of fundamental fairness captured in those hallowed terms, "due process of law." We've cared about this as an English speaking people since Magna Carta. Ken Starr: (51:41) By doing so, however, the House has inadvertently pointed this court to an exit ramp. It's an exit ramp provided by the constitution itself. It's an exit ramp built by the most noble of builders, the founding generation, despite the clearest precedent requiring due process for the accused and an impeachment inquiry, but surely all the more so in a presidential impeachment. House Democrats chose to conduct a wholly unprecedented process in this case, and they did so knowingly and deliberately because they were warned at every turn. " Don't do it. Don't do it that way." And process. The president being denied the basic rights that have been afforded to every single accused president in the history of the republic, even to the racist Andrew Johnson seeking to undo Mr. Lincoln's great legacy. He got those rights. But not here. Due process could have been honored. Basic rights could have been honored. The House rules, the House's traditions could have been honored. But what's done is done. These two articles come before this court, this high court of impeachment, dripping with fundamental process violations. Ken Starr: (53:32) The courts, and you're the court, are confronted with this kind of phenomenon, a train of fairness violations. Courts in this country do the right thing. They do impartial justice. They invoke, figuratively or literally, the words of the preamble to America's constitution. The very first order of our government after "to form a more perfect union" is "to establish justice." "To establish justice," even before getting to the words "to provide for the common defense, to promote the general welfare, to ensure domestic tranquility." The constitution speaks in terms of justice. Establishing justice. Courts would not allow this. They would not allow this, because why? They knew, and they know, that the purpose of our founding instrument is to protect our liberties, to safeguard us, but to safeguard us as individuals against the powers of government. And why? In the benedictory words of the preamble, "To secure the blessings of liberty to ourselves and our posterity." Liberty under law. I thank the court.

Michael Purpura Defense Argument

Michael Purpura: (00:00) Mr. Chief Justice, members of the Senate, good afternoon. Mr. Leader, I believe that we will be ready to take a break at the conclusion of my remarks if it meets with your approval. On Saturday, we walked through some of the evidence that the House managers put forward and didn't put forward during their 21 plus hours of presentation. That evidence that we recounted was drawn directly from the House manager's own record, the case they chose to submit to this chamber. To echo my colleague, Mr. Sekulow, briefly, the House managers own evidence shows that President Trump did not condition anything on investigations during the July 25 call with President Zelensky and did not even mention the paused security assistance on the call. President Zelensky said that he felt no pressure on the call. Presidents Zelensky and the top Ukrainian officials did not learn of the pause on the security assistance until more than a month after the July 25 call. Michael Purpura: (01:38) And the House manager's own record, their record that they developed and brought before this chamber, reflects that anyone who spoke with the President said that the President made clear that there was no linkage between security assistance and investigations. There's another category of evidence demonstrating that the pause on security assistance was distinct and unrelated to investigations. The President released the aid without the Ukrainians ever announcing any investigations or undertaking any investigations. Here is Ambassador Sondland. Elise Stefanik: (02:21) And the fact is the aid was given to Ukraine without any announcement of new investigations. Gordon Sondland: (02:29) That's correct. Elise Stefanik: (02:30) And President Trump did in fact meet with President Zelensky in September at the United Nations, correct? Gordon Sondland: (02:35) He did. Elise Stefanik: (02:36) And there was no announcement of investigations before this meeting? Gordon Sondland: (02:40) Correct. Elise Stefanik: (02:40) And there was no announcement of investigations after this meeting? Gordon Sondland: (02:44) That's right. Michael Purpura: (02:48) So while the security assistance was paused, the administration did precisely what you would expect, it addressed President Trump's concerns about the two issues that I mentioned on Saturday, burden sharing and corruption. A number of law and policy makers also contacted the President and the White House to provide input on the security assistance issue during this period, including Senator Lindsey Graham. The process culminated on September 11, 2019. On that day, the President spoke with Vice President Pence and Senator Rob Portman, the vice president, in NSC senior director Tim Morrison's words, was armed with his conversation with President Zelensky from their meeting just days earlier in Warsaw, Poland, and both the vice president and Senator Portman related their view of the importance of the assistance to Ukraine and convinced the President that the aid should be dispersed immediately. After the meeting, President Trump terminated the pause and the support flowed to Ukraine. Michael Purpura: (04:13) I want to take a step back now and talk for a moment about why the security assistance was briefly paused. Again, in the words of the house managers own witnesses, witness after witness testified that confronting Ukrainian corruption should be at the forefront of United States foreign policy toward Ukraine. They also testified that the President had long standing and sincere concerns about corruption in Ukraine. The House managers, however, told you that it was laughable to think that the President cared about corruption in Ukraine. But that's not what the witnesses said. According to Ambassador Volker, "President Trump demonstrated that he had a very deeply rooted negative view of Ukraine based on past corruption and that's a reasonable position," according to Ambassador Volker, "Most people who know anything about Ukraine would think that." And Dr. Hill testified, "I think the President has actually quite publicly said that he was very skeptical about corruption in Ukraine. And in fact, he's not alone because everyone has expressed great concerns about corruption in Ukraine." Michael Purpura: (05:37) The House managers have said that the President's concern with corruption is disingenuous. They said that President Trump didn't care about corruption in 2017 or 2018 and he certainly didn't care about it in 2019, that was their words. Not according to Ambassador Yovanovitch, however, who testified that President Trump shared his concern about corruption directly with President Poroshenko, President Zelensky's predecessor, in their first meeting in the Oval Office. When was that meeting? In June of 2017, 2017. The President also has well known concerns about foreign aid generally. Scrutinizing and in some cases curtailing foreign aid was a central plank of his campaign platform. President Trump is especially wary of sending American tax payer dollars abroad when other countries refuse to pitch in. Mr. Morrison and Mr. Hale both testified at length about President Trump's longstanding concern with burden sharing in foreign aid programs. Here's what they said. Tim Morrison: (06:58) The President was concerned that the United States seem to bear the exclusive brunt of security assistance to Ukraine. He wanted to see the Europeans step up and contribute more security assistance. David Hale: (07:11) We've often heard at the State Department that the President of the United States wants to make sure that foreign assistance is reviewed scrupulously, to make sure that it's in truly in U.S. national interests and that we evaluate it continuously to meet certain criteria that the President's established. John Ratcliffe: (07:27) And has the President express that he expects our allies to give their fair share of foreign aid as evidenced by a point that he raised during the July 25th phone call with President Zelensky to that effect? David Hale: (07:38) The principle of greater burden sharing by allies and other like-minded states is an important element of the foreign assistance review. Michael Purpura: (07:47) The President expressed these precise concerns to Senator Ron Johnson, who wrote, "He reminded me how thoroughly corrupt Ukraine was and again conveyed his frustration that Europe doesn't do its fair share of providing military aid." The House managers didn't tell you about this. Why not? And President Trump was right to be concerned that other countries weren't paying their fair share. As Laura Cooper testified, U.S. contributions to Ukraine are far more significant than any individual country and she also said E.U. funds tend to be on the economic side rather than for defense and security. Senator Johnson also confirmed that other countries refused to provide the lethal defensive weapons that Ukraine needs in its war with Russia. Michael Purpura: (08:48) Please keep in mind also that the pause of the Ukraine security assistance program was far from unusual or out of character for President Trump. The American people know that the President is skeptical of foreign aid and that one of his top campaign promises and priorities in office has been to avoid wasteful spending of American taxpayer dollars abroad. Meanwhile, the same people who today claim that President Trump was not genuinely concerned about burden sharing were upset when as a candidate, President Trump criticized free-riding by NATO members. This past summer, the administration paused, reviewed, and in some cases canceled, hundreds of millions of dollars in foreign aid to Afghanistan, El Salvador, Honduras, Guatemala, and Lebanon. And these are just some of the reviews of foreign aid undertaken at the very same time that the Ukraine aid was paused. Michael Purpura: (10:07) So what happened during the brief period of time while the Ukraine security assistance was paused? People were gathering information and monitoring the facts on the ground in Ukraine as the new parliament was sworn in and began introducing anti-corruption legislation. Not withstanding what the House managers would have you believe, the reason for the pause was no secret within the White House and the agencies. According to Mr. Morrison, in a July meeting attended by officials throughout the executive branch agencies. The reason provided for the pause by a representative of the Office of Management and Budget was that the President was concerned about corruption in Ukraine and he wanted to make sure that Ukraine was doing enough to manage that corruption. In fact, as Mr. Morrison testified, by Labor Day, there had been definitive developments to demonstrate that President Zelensky was committed to the issues he campaigned on, anti-corruption reforms. Mr. Morrison also testified that the administration was working on answering the President's concerns regarding burden sharing. Here's Mr. Morrison. Steve Castor: (11:26) Was there any inner-agency activity, whether it be with the State Department or the Defense Department, coordination by the National Security Council to look into that a little bit for the President? Tim Morrison: (11:35) We were surveying the data to understand who was contributing what and sort of in what categories. Steve Castor: (11:46) And so the President [inaudible 00:11:48] concerns, the inter-agency tried to address them. Tim Morrison: (11:52) Yes. Michael Purpura: (11:57) How else do we know that the President was awaiting information on burden sharing and anti-corruption efforts in Ukraine before releasing the security assistance? Because that's what Vice President Pence told President Zelensky. On September 1, 2019, Vice President Pence met with President Zelensky. President Trump was scheduled to attend the World War II commemoration in Poland, but instead remained in the U.S. to manage the emergency response to Hurricane Dorian. Remember, this was three days, three days after President Zelensky learned through the Politico article about the review of the security assistance. Just as Vice President Pence and his aides anticipated, Jennifer Williams testified that once the cameras left the room, the very first question that President Zelensky had was about the status of the security assistance. The vice president responded by asking about two things. Michael Purpura: (13:03) The president responded by asking about two things, burden sharing and corruption. Here's how Jennifer Williams described it. The VP responded by really expressing our ongoing support for Ukraine, but wanting to hear from president Zelensky, you know, what the status of his reform efforts were that he could then convey back to the president and also wanting to hear if there was more that European countries could do to support Ukraine. Vice President Pence knows president Trump and he knew what president Trump wanted to hear from President Zelensky. The vice president was echoing the president's two recurring themes, corruption and burden sharing. It's the same consistent themes every time. Ambassador Taylor received a similar readout of the meeting between the vice president and President Zelensky, including the vice president's focus on corruption and burden sharing. Here's ambassador Taylor. Amb. Taylor: (14:05) On the evening of September 1st I received a readout of the Pence Zelensky meeting over the phone from Mr. Morrison, during which he told me that President Zelensky had opened the meeting by immediately asking vice president about the security cooperation. The vice president did not respond substantively, but said that he would talk to President Trump that night. The vice president did say that President Trump wanted the Europeans to do more to support Ukraine and that he wanted the Ukrainians to do more to fight corruption. Michael Purpura: (14:38) On September 11, based on the information collected and presented to President Trump, the president lifted the pause on the security assistance. As Mr. Morrison explained, our process gave the president the confidence he needed to approve the release of the security sector assistance. The House Managers say that the talk about corruption and burden sharing is a ruse. No one knew why the security assistance was paused and no one was addressing the president's concerns with Ukrainian corruption and burden sharing. The House Managers' own evidence, their own record, tells a different story, however. They didn't tell you about this, not in 21 hours. Why not? The president's concerns were addressed in the ordinary course. The president wasn't caught as the House Managers allege, the managers are wrong. All of this together with what we discussed on Saturday demonstrates that there was no connection between security assistance and investigations. When the House Managers realized that their quid pro quo theory on security assistance was falling apart, they created a second alternative theory. According to the House Managers, President Zelensky desperately wanted a meeting at the White House with President Trump and President Trump conditioned that meeting on investigations. So what about the manager's backup accusations? Do they fare any better than their quid pro quo for security assistance? No. No, they don't. Michael Purpura: (16:36) A presidential level meeting happened without any preconditions at the first available opportunity in a widely televised meeting at the United Nations General Assembly in New York on September 25, 2019. The White House was working to schedule the meeting earlier at the White House or in Warsaw, but those options fell through due to normal scheduling and a hurricane. The two presidents met at the earliest convenience without President Zelensky ever announcing or beginning any investigations. The first thing to know about the alleged quid pro quo for a meeting is that by the end of the July 25 call, the president had invited President Zelensky to the White House on three separate occasions, each time without any preconditions. President Trump invited President Zelensky to an in-person meeting on their initial April 21 call. Michael Purpura: (17:37) When you're settled in and ready, I'd like to invite you to the White House. Michael Purpura: (17:42) On may 29, the week after President Zelensky's inauguration, President Trump sent a congratulatory letter, again, inviting President Zelensky to the White House. Michael Purpura: (17:55) As you prepare to address the many challenges facing Ukraine, please know that the American people are with you and are committed to helping Ukraine realize its vast potential. To help show that commitment, I would like to invite you to meet with me at the White House in Washington DC as soon as we can find a mutually convenient time. Michael Purpura: (18:18) Then on July 25th President Trump personally invited President Zelensky to participate in a meeting for a third time. Michael Purpura: (18:27) Whenever you would like to come to the White House, feel free to call, give us a date and we'll work that out, I look forward to seeing you. Michael Purpura: (18:35) That's three separate invitations for a meeting, all made without any preconditions. During this time and behind the scenes, the White House was working diligently to schedule a meeting between the presidents at the earliest possible date. Michael Purpura: (18:56) Tim Morrison, whose responsibilities included helping arrange head of state visits to the White House or other head of state meetings, testified that he understood that arranging the White House visit with President Zelensky was a [do out 00:06:09] that came from the president. Michael Purpura: (19:13) The House Managers didn't mention the work that the White House was doing to schedule the meeting between President Trump and President Zelensky, did they? Why not? Michael Purpura: (19:26) Scheduling a presidential meeting takes time. Mr. Morrison testified that his directorate, which was just one of several, had a dozen schedule requests in with the president for meetings with foreign leaders that we were looking to land and Ukraine was but one of those requests. Due to both presidents' busy schedules, according to Mr. Morrison, it became clear that the earliest opportunity for the two presidents to meet would be in Warsaw at the beginning of September. Michael Purpura: (20:04) The entire notion that a bilateral meeting between President Trump and President Zelensky was somehow conditioned on a statement about investigations is completely defeated by one straightforward fact, a bilateral meeting between President Trump and President Zelensky was planned for September 1 in Warsaw, the same Warsaw meeting we were just discussing, without the Ukrainians saying a word about investigations. As it turned out, President Trump was not able to attend the meeting in Warsaw because of Hurricane Dorian, President Trump asked Vice President Pence to attend in his place. Michael Purpura: (20:50) But even that scheduling glitch did not put off their meeting for long. President Trump and President Zelensky met at the next available date, September 25, on the sidelines of the United Nations General Assembly. As President Zelensky himself has said, there were no preconditions for his meeting with President Trump. Those are his words. No conditions. Michael Purpura: (21:15) So you're probably wondering, how could the House Managers claim that there was a quid pro quo for a meeting with President Trump when the two presidents actually did meet without President Zelensky announcing any investigations? Well, the House Managers moved the goalposts again, they claimed that the meeting couldn't be just an in-person meeting with President Trump, what it had to be was a meeting at the Oval Office and in the White House, that's nonsense. Michael Purpura: (21:51) Putting to one side the absurdity of the House Managers trying to remove a duly elected President of the United States from office because he met a world leader in one location versus another. This theory has no basis in fact. Michael Purpura: (22:10) As Dr. Hill testified, what mattered was that there was a bilateral presidential meeting, not the location of the meeting. She said, it wasn't always a White House meeting, per se, but definitely a presidential level, you know, meeting with Zelensky and the president, I mean, it could have taken place in Poland, in Warsaw, it could have been, you know, a proper bilateral in some other context, but in other words, a White House level presidential meeting. Michael Purpura: (22:43) The House Managers didn't tell you about Dr. Hill's testimony, why not? In fact, they said just last week that President Zelensky still hasn't gotten his White House meeting. Why didn't they tell you about Dr. Hill's testimony? So you would have the full context and information, they spoke for over 21 hours, they couldn't take a couple of minutes to give you that context? Michael Purpura: (23:11) How else do we know that Dr. Hill was right? Because President Zelensky said so on the July 25 call. Remember, when President Trump invited President Zelensky to Washington on the July 25 call, President Zelensky said he would be happy to meet with you personally and offered to host President Trump in Ukraine, or, on the other hand, meet with President Trump on September 1 in Poland. Michael Purpura: (23:42) That's exactly what the administration planned to do. If it weren't for Hurricane Dorian, President Trump would have met with President Zelensky in Poland on September 1, just as President Zelensky had requested and without any preconditions. As it happened, President Zelensky met with the vice president instead and just a few weeks later met with President Trump in New York, all without anyone making any statement about any investigations. Michael Purpura: (24:18) And once again, not a single witness in the House record that they compiled and developed under their procedures, that we've discussed and will continue to discuss, provided any firsthand evidence that the president ever linked the presidential meeting to any investigations. The House Managers have seized upon Ambassador Sondland's claim that Mr. Giuliani's requests were a quid pro quo for arranging a White House visit for President Zelensky. Michael Purpura: (24:50) But again, Ambassador Sondland was only guessing, based on incomplete information. He testified that the president never told him that there was any sort of a condition for a meeting with President Zelensky. Why then did he think there was one? In his own words, Ambassador Sondland said that he could only repeat what he heard through Ambassador Volker from Giuliani. So he didn't even hear from Mr. Giuliani himself. Michael Purpura: (25:26) But Ambassador Volker, who is the supposed link between Mr. Giuliani and Ambassador Sondland, thought no such thing. Ambassador Volker testified unequivocally that there was no linkage between the meeting with President Zelensky and Ukrainian investigations. I'm going to read the full questions and answers because this passage is key. This is from Ambassador Volker's deposition testimony. Michael Purpura: (25:58) Question: did President Trump ever withhold a meeting with President Zelensky- Michael Purpura: (26:02) Did President Trump ever withhold a meeting with President Zelensky or delay a meeting with President Zelensky until the Ukrainians committed to investigate the allegations that you just described concerning the 2016 presidential election? Answer. The answer to the question is no if you want a yes or no answer, but the reason the answer is no is we did have difficulty scheduling a meeting, but there was no linkage like that. Michael Purpura: (26:28) Question. You said that you are not aware of any linkage between the delay in the Oval Office meeting between President Trump and President Zelensky and the Ukrainian commitment to investigate the two allegations as you described them, correct? Answer, correct. Michael Purpura: (26:47) On no fewer than 15 separate occasions, over the past week, the House managers played a video of Ambassador Sondland saying that the announcement of the investigations was a prerequisite for a meeting, or call with the president. 15 times. They never once read to you the testimony that I just did. They never once read to you the testimony in which Ambassador Volker refuted what Ambassador Sondland claimed he heard from Ambassador Volker. Michael Purpura: (27:25) So here's what we know. President Trump invited President Zelensky to meet three times without preconditions. The White House was working behind the scenes to schedule the meeting. The two presidents planned to meet in Warsaw just as presidents Zelensky had asked and ultimately met three weeks later without Ukraine announcing any investigations. No one testified in the House record that the president ever said there was a connection between a meeting and investigations. Those are the facts, plain and simple. So much for a quid pro quo for a meeting with the president. Michael Purpura: (28:13) Before I move on, let me take a brief moment to address a side allegation that was raised in the original whistleblower complaint and that the House managers are still trying to push. The manager's claim that President Trump ordered Vice President Pence not to attend Presidents Zelensky's inauguration in favor of a lower ranking delegation, in order, according to them, to signal a downgrading of the relationship between the United States and Ukraine. That's not true. Michael Purpura: (28:50) Numerous factors had to align, as I'm sure everyone in this room can greatly appreciate, for the Vice President to attend. First, dates of travel were limited. For national security reasons. The president and Vice President generally avoid being out of the country at the same time for more than a few hours. The president had scheduled trips to Europe and Japan during the period when our embassy in Ukraine anticipated the Ukrainian inauguration would occur, at the end of May, or in early June. Jennifer Williams testified that the office of the Vice President advised the Ukrainians that if the Vice President were to participate in the inauguration, the ideal dates would be around May 29, May 30, May 31, or June 1, when the president would be in the United States. She said, "If it wasn't one of those dates, it would be very difficult or impossible for the Vice President to attend." Michael Purpura: (29:54) Second, the House managers act as if no other priorities in the world could compete for the administration's time. The Vice President's office was simultaneously planning a competing trip for May 30 in Ottawa, Canada, to participate in an event supporting passage of the United States–Mexico–Canada Agreement. Ultimately, the Vice President traveled to Ottawa on May 30 to meet with Prime Minister Justin Trudeau and to promote the passage of the USMCA. This decision, as you know, advanced the top administration priority and an issue President Trump vigorously supported. Michael Purpura: (30:37) What you did not hear from the House managers was that the Ukrainian inauguration dates did not go as planned. On May 16, May 16, the Ukrainians surprised everyone and scheduled the inauguration for just four days later on May 20, Monday May 20. So think about that, May 16, May 20. Get everybody, security, advance, everyone to Ukraine. Jennifer Williams testified that it was very short notice, so it would have been difficult for the Vice President to attend, particularly since they hadn't sent out the advanced team. Michael Purpura: (31:20) George Kent testified that the short notice left almost no time for either proper preparations, or foreign delegations to visit and that the state department scrambled on Friday the 17th to try and figure out who was available. Mr. Kent suggested that Secretary of Energy Perry be the anchor for the delegation, as someone who was a person of stature and whose job had relevance to our agenda. Secretary Perry led the delegation, which also included Ambassador Sondland, ambassador Volker and Senator Johnson. Ambassador Volker testified that it was the largest delegation from any country there and it was a high-level one. The House managers didn't tell you this. Why not? The claim that the president instructed the Vice President not to attend President Zelensky inauguration is based on House manager assumptions, with no evidence that the President did something wrong. Michael Purpura: (32:28) And finally, as I'm coming to the end. If the evidence doesn't show a quid pro quo, what does it show? Unfortunately, for the House managers, one of the few things that all of the witnesses agreed on was that President Trump has strengthened the relationship between the U.S. And Ukraine, and he has been a more stalwart friend to Ukraine and a more fierce opponent of Russian aggression than president Obama. The House managers repeatedly claimed the President Trump doesn't care about Ukraine. They are attributing views to President Trump that are contrary to his actions. More importantly, they are contrary to the House managers own evidence. Michael Purpura: (33:21) But don't take my word for it. Ambassadors Yovanovitch, Taylor and Volker all testified to the Trump administration's positive new policy toward Ukraine based especially on President Trump's decision to provide lethal aid to Ukraine. Ambassador Taylor testified that President Trump's policy toward Ukraine was a substantial improvement over President Obama's policy. Ambassador Volker agreed that America's policy towards Ukraine has been strengthened under President Trump, whom he credited with approving each of the decisions made along the way. Michael Purpura: (33:57) Ambassador Yovanovitch testified that President Trump's decision to provide lethal weapons to Ukraine meant that our policy actually got stronger over the last three years. She called the policy shift that President Trump directed very significant. Let's hear from Ambassador Taylor, Ambassador Volker and Ambassador Yovanovitch. Elise Stefanik: (34:15) The Trump administration has indeed provided substantial aid to Ukraine in the form of defensive lethal aid, correct? Bill Taylor: (34:23) That is correct. Elise Stefanik: (34:24) And that is more so than the Obama administration, correct? Defensive lethal aid? Bill Taylor: (34:30) Yes. Kurt Volker: (34:31) President Trump approved each of the decisions made along the way, providing lethal defensive equipment... Marie Y.: (34:38) And the Trump administration strengthened our policy, by approving the provision to Ukraine of anti-tank missiles known as javelins. They are obviously tank busters, and so if the war with Russia all of a sudden accelerated in some way and tanks come over the horizon, javelins are a very serious weapon to deal with that. Michael Purpura: (35:05) Ukraine is better positioned to fight Russia today than it was before President Trump took office. As a result, the United States is safer too. The House managers did not tell you about this testimony from Ambassadors, Taylor, Volker and Yovanovitch. Why not? These are the facts, as drawn from the House manager's own record on which they impeached the president. Michael Purpura: (35:35) This is why the House manager's first article of impeachment must fail, for the six reasons I set forth. When I began on Saturday. There was no linkage between investigations and security assistance, or meeting on the July 25 call. The Ukrainians said there was no quid pro quo and they felt no pressure. The top Ukrainians did not even know that security assistance was paused until more than a month after the July 25 call. The House manager's record reflects that anyone who spoke with the president said that the President made clear that there was no linkage. Michael Purpura: (36:11) The security assistance flowed and the presidential meeting took place, all without any announcement of investigations. And President Trump has enhanced America's support for Ukraine in his three years in office. These facts all require that the first article of impeachment fail. You have already heard and will continue to hear from my colleagues on why the second article must fail. Once again, this is the case that the House managers chose to bring. This is the evidence they brought before the Senate. The very heavy burden of proof rests with them. They say their cases overwhelming and uncontested, it is not. They say they have proven each of the articles against president Trump. They have not. The facts and evidence of the case the House managers have brought, exonerate the President. Thank you for your attention.

Jane Raskin Defense Argument

Jane Raskin: (00:00) Mr. Chief Justice, Majority Leader McConnell, members of the Senate, I expect you have heard American poet Carl Sandburg's summary of the trial lawyer's dilemma. If the facts are against you, argue the law. If the law is against you, argue the facts. If the facts and the law are against you, pound the table and yell like hell. Jane Raskin: (00:28) Well, we've heard the House managers do some table pounding and a little yelling. But in the main, they've used a different tactic here. A tactic familiar to trial lawyers, though not mentioned by Mr. Sandburg. If both the law and the facts are against you, present a distraction. Emphasize a sensational fact. Or perhaps a colorful and controversial public figure, who appears on the scene. Then distort certain facts. Ignore others, even when they're the most probative. Make conclusory statements. And insinuate the shiny object is far more important than the actual facts allow. In short, divert attention from the holes in your case. Jane Raskin: (01:21) Rudy Giuliani is the House manager's colorful distraction. He's a household name. Legendary federal prosecutor who took down the Mafia, corrupt public officials, Wall Street racketeers. Crime-busting mayor, who cleaned up New York and turned it around. A national hero. America's mayor after 9/11. After that, an internationally recognized expert on fighting corruption. Jane Raskin: (01:52) To be sure, Mr. Giuliani has always been somewhat of a controversial figure for his hard-hitting, take no prisoner approach. But it's no stretch to say that he was respected by friend and foe alike for his intellect, his tenacity, his accomplishments, and his fierce loyalty to his causes and his country. Jane Raskin: (02:17) Then the unthinkable. He publicly supported the candidacy of President Trump, the one who was not supposed to win. Jane Raskin: (02:27) Then in the spring of 2018, he stood up to defend the president. Successfully, it turns out. Against what we all now know as the real debunked conspiracy theory, that the Trump campaign colluded with Russia during the 2016 campaign. Jane Raskin: (02:46) The House managers would have you believe that Mr. Giuliani is at the center of this controversy. They've anointed him the proxy villain of the tale, the leader of a rogue operation. Their presentations were filled with ad hominem attacks and name-calling. Cold-blooded political operative. Political bag man. But I suggest to you that he's front and center in their narrative for one reason and one reason alone, to distract from the fact that the evidence does not support their claims. Jane Raskin: (03:21) What's the first tell that Mr. Giuliani's role in this may not be all that it's cracked up to be? They didn't subpoena him to testify. In fact, Mr. Schiff and his committee never even invited him to testify. They took a stab at subpoenaing his documents back in September. When his lawyer responded with legal defenses to the production, the House walked away. But if Rudy Giuliani is everything they say he is, don't you think they would have subpoenaed and pursued his testimony? Ask yourselves, "Why didn't they?" Jane Raskin: (04:01) In fact, it appears the House committee wasn't particularly interested in presenting you with any direct evidence of what Mayor Giuliani did or why he did it. Instead, they ask you to rely on hearsay, speculation, and assumption, evidence that would be inadmissible in any court. Jane Raskin: (04:22) For example, the House managers suggest that Mr. Giuliani, at the president's direction, demanded that Ukraine announce an investigation of the Bidens and Burisma before agreeing to a White House visit. They base that on a statement to that effect by Ambassador Sondland. Jane Raskin: (04:41) But what the House managers don't tell you was that Sondland admitted he was speculating about that. He presumed that Mr. Giuliani's requests were intended as a condition for a White House visit. Even worse, his assumption was on third-hand information. As he put it, the most he could do is repeat what he heard through Ambassador Volker from Giuliani, whom he presumed spoke to the president on the issue. By the way, as Mr. Purpura has explained, the person who was actually speaking to Mr. Giuliani, Ambassador Volker, testified clearly that there was no linkage between the meeting with President Zelensky and Ukrainian investigations. Jane Raskin: (05:36) The House managers also make much of a May 23rd White House meeting, during which the president suggested to his Ukraine working group, including ambassadors Volker and Sondland, that they should talk to Rudy. The managers told you that president Trump gave a directive and a demand that the group needed to work with Giuliani if they wanted him to agree with the Ukraine policy they were proposing. But those words, directive and demand, are misleading. They misrepresent what the witnesses actually said. Jane Raskin: (06:14) Ambassador Volker testified that he understood, based on the meeting, that Giuliani was only one of several sources of information for the president. And the president simply wanted officials to speak to Mr. Giuliani because "he knows all these things" about Ukraine. As Volker put it, "The president's comment was not an instruction, but just a comment." Ambassador Sondland agreed. He testified that he didn't take it as an order. He added that the president wasn't even specific about what he wanted us to talk to Giuliani about. Jane Raskin: (06:54) It may come as no surprise to you that after the May 23rd meeting, the one during which the House managers told you the president demanded that his Ukraine team talk to Giuliani, neither Volker nor Sondland even followed up with Mr. Giuliani until July. The July followup by Mr. Volker happened only because the Ukrainian government asked to be put in touch with him. Volker testified that President Zelensky's senior aide, Andriy Yermak, approached him to ask to be connected to Mr. Giuliani. Jane Raskin: (07:35) House Democrats also rely on testimony that Mayor Giuliani told ambassadors Volker and Sondland that in his view, to be credible, a Ukrainian statement on anti-corruption should specifically mention investigations into 2016 election interference and Burisma. But when Ambassador Volker was asked whether he knew if Giuliani was, and these are his words, "conveying messages that President Trump wanted conveyed to the Ukrainians," Volker said that he did not have that impression. He believed that Giuliani was doing his own communication about what he believed he was interested in. Jane Raskin: (08:19) But even more significant than their reliance on presumptions, assumptions, and unsupported conclusions is the manager's failure to place in any fair context, Mr. Giuliani's actual role in exploring Ukrainian corruption. To hear their presentation, you might think that Mayor Giuliani had parachuted into the president's orbit in the spring of 2019 for the express purpose of carrying out a political hit job. They'd have you believe that Mayor Giuliani was only there to dig up dirt against former Vice President Biden, because he might be President Trump's rival in the 2020 election. Jane Raskin: (09:04) Of course, Mr. Giuliani's intent is no small matter here. It's a central and essential premise of the House manager's case that Mr. Giuliani's motive in investigating Ukrainian corruption and interference in the 2016 election was an entirely political one, undertaken at the president's direction. Jane Raskin: (09:26) But what evidence have the Managers actually offered you to support that proposition? On close inspection, it turns out, virtually none. They just say it over, and over, and over. And they offer you another false dichotomy. Either Mr. Giuliani was acting in an official capacity to further the president's foreign policy objectives, or he was acting as the president's personal attorney, in which case they conclude ispe dixit, his motive could only be to further the president's political objectives. Jane Raskin: (10:07) The House managers then point to various of Mr. Giuliani's public statements in which he is clear and completely transparent about the fact that he is indeed the president's personal attorney. There you have it. Giuliani admits he's acting as the president's personal attorney and therefore, he had to have been acting with a political motive to influence the 2020 election. No other option, right? Wrong. Jane Raskin: (10:37) There is of course another obvious answer to the question, "What motivated Mayor Giuliani to investigate the possible involvement of Ukrainians in the 2016 election?" The House managers know what the answer is. It's in plain sight. And Mr. Giuliani has told any number of news outlets exactly when and why he became interested in the issue. It had nothing to do with the 2020 election. Jane Raskin: (11:08) Mayor Giuliani began investigating Ukraine corruption and interference in the 2020 election way back in November of 2018, a full six months before Vice President Biden announced his candidacy. And four months before the release of the Mueller report, when the biggest false conspiracy theory in circulation that the Trump campaign had colluded with Russia during the 2016 campaign was still in wide circulation. Jane Raskin: (11:43) As The Hill reported, "As President Trump's highest-profile defense attorney, the former New York City mayor, often known simply as Rudy, believed the Ukrainian's evidence could assist in his defense against the Russian collusion investigation and former special counsel Robert Mueller's final report. So Giuliani began to check things out in late 2018 and early 2019." Jane Raskin: (12:11) The genesis of Mayor Giuliani's investigation was also reported by numerous other media outlets, including CNN, which related that "Giuliani's role in Ukraine can be traced back to November 2018, when he was contacted by someone he describes as a 'well-known investigator.'" The Washington Post and many other news outlets reported the same information. Jane Raskin: (12:38) So yes, Mayor Giuliani was President Trump's personal attorney, but he was not on a political errand. As he has stated repeatedly and publicly, he was doing what good defense attorneys do. He was following a lead from a well-known private investigator. He was gathering evidence regarding Ukrainian election interference to defend his client against the false allegations being investigated by special counsel Mueller. Jane Raskin: (13:12) But the House managers didn't even allude to that possibility. Instead, they just repeated their mantra that Giuliani's motive was purely political. That speaks volumes about the bias with which they have approached their mission. The bottom line is Mr. Giuliani defended President Trump vigorously, relentlessly, and publicly throughout the Mueller investigation and in the nonstop congressional investigations that followed. Including the attempted Mueller redo by the House Judiciary Committee, which the managers would apparently like to sneak in the backdoor here. Jane Raskin: (13:57) The House managers may not like his style. You may not like his style. But one might argue that he is everything Clarence Darrow said a defense lawyer must be. Outrageous, irreverent, blasphemous, a rogue, a Renegade. Fact is in the end, after a two years siege on the presidency, two inspector general reports, and a $32 million special counsel investigation, turns out Rudy was spot on. Jane Raskin: (14:37) Seems to me, if we're keeping score on who got it right on allegations of FISA abuse, egregious misconduct at the highest level of the FBI, alleged collusion between the Trump campaign and Russia, and supposed obstruction of justice in connection with the special counsel investigation, the score is Mayor Giuliani four, Mr. Schiff zero. Jane Raskin: (15:09) But in this trial, in this moment, Mr. Giuliani is just a minor player. That shiny object designed to distract you. Senators, I urge you most respectfully, do not be distracted. Jane Raskin: (15:27) Thank you, Mr. Chief Justice.

Pam Bondi Defense Argument

Pam Bondi: (00:00) Senators, members of the Senate. When the house managers gave you their presentation, when their submitted their brief, they repeatedly referenced Hunter Biden and Burisma. They spoke to you for over 21 hours and they referenced Biden or Burisma over 400 times and when they gave these presentations, they said there was nothing, nothing to see. It was a sham. This is fiction. In their trial memorandum the house managers describe this as baseless. Now, why did they say that? Why did they invoke Biden or Burisma over 400 times? Pam Bondi: (01:02) The reason they needed to do that is because they are here saying that the president must be impeached and removed from office for raising a concern and that's why we have to talk about this today. They say sham, they say baseless because they say this because if it's okay for someone to say, "Hey, you know what? Maybe there's something here worth raising." Then their case crumbles because they have to prove beyond a reasonable doubt that there is no basis to raise this concern, but that's not what public records show. Pam Bondi: (01:49) Here are just a few of the public sources that flagged questions surrounding this very same issue. The United Kingdom Serious Fraud Office, deputy assistant secretary of state, George Kent. Hunter Biden's former business associate and ABC white house reporter. Good morning America, ABC, the Washington Post, the New York Times, Ukrainian Law Enforcement, and the Obama State Department itself. They all raised this issue. We would prefer not to be talking about this. We would prefer not to be discussing this, but the house managers have placed this squarely at issue, so we must address it. Pam Bondi: (02:47) Let's look at the facts. In early 2014 Joe Biden, our vice president of the United States, led the United States foreign policy in Ukraine with the goal of rooting out corruption. According to an annual study published by Transparency International, during this time, Ukraine was one of the most corrupt countries in the entire world. In Ukraine, there's a natural gas company called Burisma. Burisma has been owned by an oligarch named Mykola Zlochevsky. Pam Bondi: (03:22) Here's what happened very shortly after vice president Biden was made US point man for Ukraine. His son, Hunter Biden ends up on the board of Burisma working for and paid by the oligarch Zlochevsky. In February 2014 in the wake of anti-corruption uprising by the people of Ukraine, Zlochevsky flees the country fleas, Ukraine. Zlochevsky the oligarch is well known. George Kent, the very first witness that the Democrats called during their public hearings testified. So Zlochevsky stood out for his self dealings even among other oligarchs. House managers didn't tell you that. Pam Bondi: (04:17) Ambassador Kurt Volker explained that Burisma had a "very bad reputation as a company for corruption and money laundering." House managers didn't tell you that. Burisma was so corrupt that George Kent said he intervened to prevent USAID from cosponsoring an event with Burisma. Do you know what this event was? It was a child contest and the prize was a camera. They were so bad, Burisma that our country wouldn't even co-sponsor a children's event with Burisma. Pam Bondi: (05:07) In March 2014 the United Kingdom Serious Fraud Office opened some money laundering investigation into the oligarch Zlochevsky and his company Burisma. The very next month, April 2014 according to a public report, Hunter Biden quietly joins the board of Burisma. Remember early 2014 was when vice president Biden began leading Ukraine policy. Here's how Hunter Biden came to join Burisma's board in April 2014. He was brought on the board by Devon Archer, his business partner, Devon Archer was college roommates with Chris Heinz, stepson of secretary of state, John Kerry. Pam Bondi: (05:54) All three men, Hunter Biden, Devon Archer, and Chris Heinz had all started an investment firm together. Public records show that April 16th, 2014 Devon Archer meets with vice president Biden at the white house. Just two days later, on April 18th, 2014 is when Hunter Biden quietly joins Burisma according to public reporting. Remember, this is just one month after the United Kingdom Serious Fraud Office open a money laundering case into Burisma, Hunter Biden joins their board. And not only 10 days after Hunter Biden joins the board, British authorities seizes $23 million in British bank accounts connected to the oligarch Zlochevsky, the owner of Burisma. Pam Bondi: (06:57) Did Hunter Biden leave the board then? No. The British authorities also announced that it had started a criminal investigation into potential money laundering. Did Hunter Biden leave the board? No. What happened was then only then did the company choose to announce that Hunter Biden had joined the board after the assets of Burisma and its oligarch owners Zlochevsky were frozen and a criminal investigation had begun. Pam Bondi: (07:38) Hunter Biden's decision to join Burisma raised flags almost immediately. One article from May, 2014 stated the appointment of Joe Biden's son to the board of Ukrainian gas firm Burisma has raised eyebrows the world over. Even an outlet with bias for Democrats pointed out Hunter Biden's activities created a conflict of interest for Joe Biden. The article stated the move raises questions about a potential conflict of interest for Joe Biden. Pam Bondi: (08:20) Now even Chris Heinz, Hunter Biden's own business partner had grave concerns. He thought that working with Burisma was unacceptable. This is Chris Heinz. He was worried about the corruption, the geopolitical risk and how bad it would look. So he wisely distances himself from Hunter Biden and Devon Archer's appointments to Burisma. He didn't simply call his step-father secretary-of-state and say, "I have a problem with this." He didn't tell his friends, "Hey guys, I'm not getting on the board. I want nothing to do with this." He went so far as to send an email to senior state department officials about this issue. This Chris Heinz? Pam Bondi: (09:17) He wrote, apparently Devon and Hunter have joined the board of Burisma and a press release went out today. I can't speak to why they decided to, but there is no investment by our firm in their company. What did Hunter Biden do? He stayed on the board. What did Chris Heinz do? He subsequently stopped doing business with his college roommate, Devon Archer and his friend Hunter Biden. Chris Heinz spokesperson said the lack of judgment in this matter was a major catalyst for Mr. Heinz ending his business relationship with Mr. Archer and Mr. Biden. Now the media also noticed the same day and ABC news reporter ask Obama White House press secretary Jay Carney about it. Here's what happened. Speaker 1: (10:14) Hunter Biden has now taken a position with the largest oil and gas holding company in Ukraine. Is there any concern about at least the appearance of a conflict there? The vice president's son taking- Jay Carney: (10:28) I would refer you to the vice president's office. I saw those reports. Hunter Biden and other members of the Biden family are obviously private citizens and where they work does not reflect an endorsement by the administration or by the vice president or president. But I would refer you to the vice president's office. Pam Bondi: (10:52) The next day the Washington Post ran a story about it. It said, the appointment of the vice president's son to a Ukrainian oil board look... Pam Bondi: (11:03) ... Of the vice president's son to a Ukrainian oil board looks nepotistic at best, nefarious at worst." Again, "The appointment of the vice president's son to a Ukrainian oil board looks nepotistic at best, nefarious at worst." And the media didn't stop questioning asking questions here. It kept going, here's ABC. Joe Biden: (11:27) You have to fight the cancer of corruption. Speaker 2: (11:32) But then something strange happened. Just three weeks later, a Ukrainian natural gas company, Burisma, accused of corruption appoints hunter Biden, seen here in their promotional videos, to their board of directors, paying his firm more than a million dollars a year. Pam Bondi: (11:52) Here's more from ABC. Continued on. Speaker 2: (11:55) Ukraine wasn't the only country where Hunter Biden's business and his father's diplomacy as vice president intersected. It also happened in China. Speaker 2: (12:03) This video shows Chinese diplomats greeting Vice President Biden as you arrived in Beijing in December of 2013. Right by his side? His son, Hunter. Less than two weeks later, Hunter's firm had new business, creating an investment fund in China involving the government controlled bank of China with reports they hoped to raise one $1.5 Billion. Pam Bondi: (12:29) In fact, every witness who was asked about Hunter Biden's involvement with Burisma agreed there was a potential appearance of a conflict of interest. Multiple house Democrat witnesses, including those from the Department of State, the National Security Council, and others unanimously testified there was a potential appearance of a conflict of interest. These were their witnesses. Pam Bondi: (13:03) How much money did Hunter Biden get for being on the board? Well, you start looking at this bank records. According to reports, between April, 2014 and October, 2015, Burisma paid more than $3.1 million to Devin Archer and Hunter Biden. That's over the course of a year and a half. How do we know this? Some of Devin Archer's bank records were disclosed during an unrelated federal criminal case, having nothing to do with Hunter Biden. These bank records show 17 months that Burisma wired two payments of $83,333, not just for one month, for two months, for three months, but for 17 months. According to Reuters, sources report that of the two payments of $83,333 each, one was for a Hunter Biden and one Devin Archer. Pam Bondi: (14:09) Now, Hunter Biden was paid significantly more than board members for major US Fortune 100 companies such as Goldman Sachs, Comcast, Citigroup. The typical board member of these Fortune 100 companies ... We know they're titans of their industry, they're highly qualified, and as such, they're well compensated. Even so, Hunter Biden was paid significantly more. This is how well he was compensated. Hunter Biden is paid over $83,000 a month while the average American family of four during that time, each year made less than $54,000, and that's according to US Census Bureau during that time. Pam Bondi: (15:06) And this is what's been reported about his work on the board. The Washington post said, "What specific duties Hunter Biden carried out for Burisma are not fully known." The New Yorker reported, "Once or twice a year, he attended Burisma board meetings and energy forums that took place in Europe." When speaking with ABC News about his qualifications to be on Burisma's board, Hunter Biden didn't point to any of the usual qualifications of a board member. Hunter Biden and had no experience in natural gas, no experience in the energy sector, no experience with Ukrainian regulatory affairs. As far as we know, he doesn't speak Ukrainian. So, naturally, the media has asked questions about his board membership. Why was Hunter Biden on this board? Pam Bondi: (16:02) If your last name wasn't Biden, do you think you would have been asked to be on the board of Burisma? Hunter Biden: (16:07) I don't know. I don't know, probably not. Pam Bondi: (16:11) So, let's go back and talk about his time on the board. Remember he joined Burisma's board April, 2014, while the United Kingdom had an open money laundering case against Burisma and its owner, the oligarch Zlochevsky. On August 20th, 2014, four months later, the Ukrainian prosecutor general's office initiates a money laundering investigation into the same oligarch, Zlochevsky. This is one of 15 investigations into Burisma and Zlochevsky. Pam Bondi: (16:48) According to a recent public statement made by the current prosecutor general, on January 16, 2015, prosecutors put Zlochevsky, the owner of Burisma, on whose Hunter Biden sat on his board, on the country's wanted list for fraud, while Hunter Biden's on the board. Then a British court orders Zlochevsky's $23 million in assets be unfrozen. Why was the money unfrozen? Deputy Assistant Secretary Kent testified to it. Jay Carney: (17:29) Somebody in the general prosecutor's office of Ukraine shut the case, issued a letter to his lawyer, and that money went poof. Steve Castor: (17:37) So, essentially paid a bribe to make the case go away? Jay Carney: (17:39) That is our strong assumption. Yes, sir. Pam Bondi: (17:44) He also testified that the Ukrainian prosecutor general's office's actions led to the unfreezing of the assets. After George Kent's confirmation, that prosecutor was out. Victor Shokin becomes the prosecutor general. This is the prosecutor that you'll hear about later, the one that Vice President Biden has publicly said he wanted out of office. In addition to flagging questions about previous prosecutor's actions, George Kent also specifically voiced other concerns, this time to the vice president's office about Hunter Biden. In February, 2015, he raised concerns about Hunter Biden to Vice President Biden's office. Jay Carney: (18:32) In a briefing call with the national security staff of the office of the vice president in February of 2015, I raised my concern that Hunter Biden's status as a board member could create the perception of a conflict of interest. Pam Bondi: (18:46) But House managers didn't tell you that. This is all while Hunter Biden's sat on Burisma's board. Did Hunter Biden stop working for Burisma? No. Did Vice President Biden stop leading the Obama administration's foreign policy efforts in Ukraine? No. In the meantime, Vice President Biden is still at the forefront of the US Ukraine policy. He pledges $1 billion loan guarantee to Ukraine contingent on its progress in rooting out corruption. Around the same time with the $1 billion announcement, other people raised the issue of a conflict. As special Obama administration special envoy for energy policy told the New Yorker, it raised Hunter Biden's participation on the board of Burisma. He raised it directly with the vice president himself. This is a special Envoy to president Obama, and the media had questions too. December 8, 2015, the New York Times publishes an article that Prosecutor General Shokin was investigating Burisma and its owner, Zlochevsky. The Times report, here's their quote. "The credibility of the vice president's anti-corruption message may have been undermined by the association of his son, Hunter Biden," with Barisma and its owner, Zlochevsky. Pam Bondi: (20:24) And it wasn't just one reporter who asked questions about the line between Burisma and the Obama administration. As we learned recently through reporting on Fox news, on January 19th, 2016, there was a meeting between Obama administration officials and Ukrainian prosecutors. Ken Vogel, journalist for the New York Times, asked the State Department about this meeting. He wanted more information about the meeting, "where US support for prosecutions of Burisma holdings in the United Kingdom in Ukraine were discussed," but the story never ran. Pam Bondi: (21:07) Around the time of the reported story, January, 2016, meeting between the Obama administration and Ukrainian officials took place according to a Ukrainian press report, as translated says. "The US Department of State made it clear to the Ukrainian authorities that it was linking the $1 billion in loan guarantees to the dismissal of prosecutor general Victor Shokin." Pam Bondi: (21:39) Now, we all know from the Obama administration and from the words of Vice President Biden himself, he advocated for the prosecutor general's dismissal. There was ongoing investigation into the oligarch, Zlochevsky, the owner of Burisma, at the time. We know this because on February 2nd, 2016, the Ukrainian ... Pam Bondi: (22:03) ... 2, 2016, the Ukrainian prosecutor general obtained a renewal of a court order to seize the Ukrainian oligarch's assets. A Kiev Post article published on February 4th, 2016 says, the oligarch Zlochevsky is, quote, suspected of committing a criminal offense of elicit enrichment, end quote. Over the next few weeks, the vice president had multiple calls with Ukraine's President Poroshenko. Days after the last call on February 4th ... 24th, 2016, a D.C. consultant reached out to the State Department to request a meeting to discuss Burisma. We know what she said because the email was released under the Freedom Of Information Act. The consultant explicitly invoked Hunter Biden's name as a board member. In an email summarizing the call, the State Department official says that the consultant quote, noted that two high profile citizens are affiliated with the company, including Hunter Biden as a board member, end quote. She added that the consultant would, quote like to talk with Under Secretary Of State Novelli about getting a better understanding of how the U.S. Came to the determination that the country is corrupt, end quote. Pam Bondi: (23:28) To be clear, this email documents that the U.S. government had determined Burisma to be corrupt. And the consultant was seeking a meeting with an extremely senior State Department official to discuss the U.S. government's position. Her pitch for the meeting specifically used Hunter Biden's name, and according to the email, the meeting was set for a few days later. And later that month, on March 29th, 2016, the Ukrainian parliament finally votes to fire the prosecutor general. This is the prosecutor general investigating the oligarch, owner of Burisma, on whose board Hunter Biden sat. Two days after the prosecutor general is voted out, Vice President Biden announces that the U.S. will provide $335 million in security assistance to Ukraine. He soon announces that the U.S. will provide one billion dollars in loan guarantees to Ukraine. Now let's talk about one of the Democrat's central witnesses, Ambassador Yovanovitch. In May 2016, Ambassador Yovanovitch was nominated to be Ambassador in Ukraine. Here's what happened when she was preparing for her Senate confirmation hearing. John Ratcliffe: (24:49) Congresswoman Stefanik had asked you how the Obama, Biden State Department had prepared you to answer questions about Burisma and Hunter Biden specifically, you recall that? Amb Yovanovitch: (25:02) Yes. John Ratcliffe: (25:03) Out of thousands of companies in the Ukraine, the only one that you recall, the Obama, Biden State Department prepared you to answer questions about was the one where the vice president's son was on the board, is that fair? Amb Yovanovitch: (25:15) Yes. Pam Bondi: (25:20) So she's being prepared to come before all of you, all of you, and talk about world issues, I'm going to be in charge of the Ukraine, and what did they feel the only company, the company that it was important to brief her on in case she got a question, Burisma. Ambassador Yovanovitch was confirmed July, 2016 as the Obama administration was coming to a close. In September, 2016, a Ukrainian court cancels the oligarch Zlochevsky arrest warrant for lack of progress in the case. In mid January, 2017, Burisma announces that all legal proceedings against it and Zlochevsky have been closed. Both of these things happened while Hunter Biden sat on the board of Burisma. Around this time, Vice President Biden leaves office. Years later now, former Vice President Biden, publicly details what we know happened. His threat to withhold more than a billion dollars in loan guarantees unless Shokin was fired. Here's the vice president. Jay Carney: (26:35) I said, I'm not going to, or we're not going to give you the billion dollars. They said, "You have no authority. You're not the president. The president said ..." I said, "Call him." I said, "I'm telling you, you're not getting the billion dollars." I said, "You're not getting a billion, I'm going to be leaving here." And I think it was what, six hours. I looked and I said, "I'm leaving in six hours. If the prosecutor's not fired, you're not getting the money." Well, son of a bitch. He got fired and they put in place someone who was solid at the time. Pam Bondi: (27:06) What he didn't say on that video, according to the New York Times, this was the prosecutor investigating Burisma, Shokin. What he also didn't say on the video was that his son was being paid significant amounts by the oligarch, owner of Burisma, to sit on that board. Only then does Hunter Biden leave the board, he stays on the board until April, 2019. Now in November, 2019, Hunter Biden signs an affidavit saying quote, he's been unemployed and has no other monthly income since May, 2019. This was in November of 2019, so we know from after April, 2019 to May, 2019 through November, 2019, he was unemployed by his own statement. Pam Bondi: (28:17) April, 2019 to November, 2019, despite his resignation from the board, the media has continued to raise the issue relating to a potential conflict of interest. On July 22nd, 2019, The Washington Post wrote, the fired prosecutor general Shokin quote, believes his ouster was because of his interest in the company, end quote, referring to Burisma. The Post further wrote that, quote, had he remained in his post, he would have questioned Hunter Biden. On July 25th, 2019, three days later, President Trump speaks with President Zelensky. He says, "The other thing, there's a lot of talk about Biden's son, that Biden stopped the prosecution and a lot of people want to find out about that, so whatever you can do with this attorney general would be great." Biden went around bragging that he stopped the prosecution said, "If you can look into it. It looks horrible to me, end quote. The House managers talked about the Bidens or Burisma 400 times, but they never gave you the full picture. Pam Bondi: (29:39) But here are those who did. The United Kingdom serious fraud unit, Deputy Assistant Secretary Of State, George Kent. Chris Heinz, the ABC White House reporter, ABC, Good Morning America, The Washington Post, The New York Times, Ukrainian law enforcement and the Obama State Department itself. They all thought there was cause to raise the issue about the Bidens and Burisma. Now the House managers might say without evidence that everything we just have said has been debunked. That the evidence points entirely and unequivocally in the other direction. That is a distraction. You've heard from the House managers, they do not believe that there was any concern to raise here, that all of this was baseless and all we are saying is that there was a basis to talk about this, to raise this issue, and that is enough. I yield my time.

Patrick Philbin Defense Argument

Patrick Philbin: (00:00) Mr. Chief justice, senators, majority leader McConnell, minority leader Schumer. The other day as we opened our presentation, I touched on two areas, some of the due process violations that characterize the proceedings in the house and some of the fundamental mischaracterizations and errors that underpin House Democrats charge of obstruction. And today I'll complete the presentation on those points to round out some of the fundamentally unfair procedure that was used in the house and its implications for this proceeding before you now. And also address in detail the purported charges of obstruction in the second article of impeachment. On due process, there are three fundamental errors that infected the proceedings in the house. The first is, as I explained on Saturday, the impeachment inquiry was unauthorized and unconstitutional from the beginning. No committee of the house has the power to launch an inquiry under the house's impeachment power unless the house itself has taken a vote to give that authority to a committee. Patrick Philbin: (01:14) I noted that in cases such as Rumely versus the United States and the United States versus Watkins, the Supreme Court has set out these principles, general principles derived from the constitution, which assigns authority to each chamber of the legislative branch, to the house and to the Senate, but not to individual members or to subcommittees. For an authority of the house to be transferred to a committee. The house has to vote on that. The DC circuit has distilled the principles from those cases. This way, to issue a valid subpoena, a committee or subcommittee must conform strictly to the resolution establishing its investigatory powers. That was the problem here. There was no such resolution. There was no vote from the house authorizing the issuance of subpoenas under the impeachment power. So this inquiry began with nearly two dozen invalid subpoenas. The speaker had the house proceed on nothing more than a press conference in which she purported to authorize committees to begin an impeachment power under. The constitution she lacked that authority. Patrick Philbin: (02:25) As the chairman of the house judiciary committee during the Nixon impeachment inquiry pointed out, Peter Rodino explained that such a resolution from the house has always been passed by the house. It is a necessary step if we are to meet our obligations. So we began this process with unauthorized subpoenas that imposed no compulsion on the executive branch to respond with documents or witnesses and I'll be coming back to that point, that threshold foundational point when we get to the obstruction charge. Patrick Philbin: (02:59) The second fundamental due process error is it the house Democrats denied the President basic due process required by the constitution and by fundamental principles of fairness in the procedures that they used for the hearings. And I'm not going to go back in detail over those as we heard from Judge Starr, the House Democrats essentially abandoned the principles that have governed impeachment inquiries in the house for over 150 years. And I'll touch on just a few points and respond to a couple of points that the house managers have made. The first is that in denying due process rights, the house proceedings were a huge reversal from the positions House Democrats themselves have taken in the recent past, particularly in the Clinton impeachment proceeding, and I believe we have manager Nadler's description of what was required. Patrick Philbin: (04:07) ( silence). Patrick Philbin: (04:07) Manager Nadler was explaining that due process requires at a minimum notice of the charges against you, the right to be represented by counsel, the right to cross examine witnesses against you and the right to present evidence. All of those rights were denied to the President. Now one of the responses that the managers have made to the defect that we pointed out in the secret proceedings where manager Schiff began these hearings in the basement bunker is that well, that was really just best investigative practice. They were operating like a grand jury. Don't be fooled by that, those hearings operated nothing like a grand jury. A grand jury has secrecy primarily for two reasons to protect the direction of the investigation so others won't know what witnesses are being called in and what they're saying. To keep that secret for the prosecutor to be able to keep developing the evidence and to protect the accused because the accused might not ever be indicted. Patrick Philbin: (05:19) In this case, all of that information was made public every day. The House Democrats destroyed any analogy, any legitimate analogy to a grand jury because that was all public. They made no secret that the President was the target. They issued vile calumnies about him every day, and they didn't keep the direction of their investigation secret. Their witness lists were published daily. The direction of the investigation was open and the testimony that took place was selectively leaked to a compliant media to establish a false narrative about the President. If that sort of conduct had occurred in a real grand jury, that would've been a criminal violation. Prosecutors can't do that. Patrick Philbin: (06:04) Under rule six(e), the federal criminal rules, it's a criminal offense to be leaking what it takes place in a grand jury and also the grand jury explanation provides no rationale whatsoever for the second round of hearings. Remember after the basement bunker, after the secret hearings where the testimony was pre-screened, then the same witnesses who had already been deposed were put on in a public hearing where the President was still excluded. Ask yourself what was the reason for that? And every prior presidential impeachment in the modern era where there had been public hearings, the President has been represented by counsel and could cross examine witnesses. Why did there have to be public televised hearings where the President was excluded? That was nothing more than a show trial. Patrick Philbin: (06:58) Now, I also addressed the other day the house manager's contention that they had offered the President due process that when things reach the third round of hearings in front of the house judiciary committee, that manager Nadler offered the President due process and I explained why that was illusory. There was no genuine offer there because before any hearings began other than the law professors seminar in December 4th. The speaker had already determined the outcome, already said they were going to be articles of impeachment and the judiciary committee had informed the counsel's office that they had no plans to call any fact witnesses or have any factual hearings whatsoever. It was all done, it was locked in, it was baked. And there was something else hanging over that when they had offered purportedly to allow the President some due process rights and that was a special provision in the rules for the house judiciary committee proceedings. Patrick Philbin: (07:57) Also unprecedented that allowed the house judiciary committee to deny the President any due process rights at all if he continued to refuse to turn over documents or not allow witnesses to testify. So that if the President didn't give up his privileges and immunities that he had been asserting over executive branch confidentiality interests. If he didn't comply with what the House Democrats wanted, then it was up to chairman Nadler potentially to say no rights at all. And there's a term for that in the law. It's called an unconstitutional condition. You can't condition someone's exercise of some rights on their surrendering other constitutional rights. You can't say, will let you have due process in this way if you waive your constitutional privileges on another issue. The last point I'll make about due is this. It's important to remember the due process is enshrined in the bill of rights for a reason. It's not that process is just an end in itself. Patrick Philbin: (09:09) Instead, it's a deep seated belief in our legal tradition that fair process is essential for accurate decision making. Cross- examination of witnesses in particular is one of the most important procedural protections for any American. The Supreme Court has explained that for over 250 years, our legal tradition has recognized cross examination is the greatest legal engine ever discovered for the discovery ever invented for the discovery of truth. So why did House Democrats jettison every precedent and every principle of due-process in the way they devise these hearing procedures? Why did they devise a process that kept the President locked out of any hearings for 71 of the 78 days of the so-called investigation? I would submit because the process was never about finding the truth. The process was about achieving a predetermined outcome on a timetable and having it done by Christmas and that is what they achieved. Patrick Philbin: (10:25) Now, the third fundamental due process error is that the whole foundation of these proceedings was also tainted beyond repair because an interested fact witness supervised and limited the course of the factual discovery. The course of the hearings and I explained the other day that manager Schiff had a reason potentially because of his office's contact with the so called whistleblower and what was discussed and how the complaint was framed, which all remains secret to limit inquiry into that which is relevant. The whistleblower began this whole process, his bias, his motive, why he was doing it, what his sources were. Patrick Philbin: (11:09) That's relevant to understand what generated this whole process, but there was no inquiry into that. So what conclusion does this all lead to? All of these due process errors that have infected the proceeding up to now. I think it's important to recognize the right conclusion is not that this body, this chamber should try to redo everything to start bringing in new evidence, bring in witnesses because the President wasn't allowed witnesses below and redoing the whole process. And that's where a couple of reasons. One is, first, as my colleagues have demonstrated, despite the one sided unfair process in the house, the record that the House Democrats collected through that process already shows that the President did nothing wrong. It already exonerates the President. But the second and more important reason is because of the institutional implications it would have for this chamber. Patrick Philbin: (12:15) Whatever precedent is set, whatever this body accepts now as a permissible way to bring an impeachment proceeding and to bring it to this chamber becomes the new normal. And if the new normal is going to be that there can be an impeachment proceeding in the house that violates due process that doesn't provide the President or another official being impeached due process rights that fails to conduct a thorough investigation that doesn't come here with the facts established that then this body should become the investigatory body and start redoing what the house didn't do and finding new witnesses and doing things over and over getting new evidence. Then that's going to be the new normal and that will be the way that this chamber has to function and there'll be a lot more impeachments coming because it's a lot easier to do an impeachment if you don't have to follow due process and can come here and expect the Senate to do the work that the house didn't do. Patrick Philbin: (13:16) I'd submit that is not the constitutional function of this chamber sitting as a quarter of impeachment and this chamber should not put its the imprimatur on a process in the house that would force this chamber to take on that role. Now I'll move on to the charge of obstruction in the second article of impeachment. Accepting that article of impeachment would fundamentally damage the separation of powers under the constitution by permanently altering the relationship between the executive and the legislative branches. In the second article House Democrats are trying to impeach the President for resisting legally defective demands for information by asserting established legal defenses and immunities based on legal advice from the department of Justice's Office of Legal Counsel. In essence, the approach here is that House Democrats are saying when we demand documents, the executive branch must comply immediately and the assertions of privilege or defenses to our subpoenas are further evidence of obstruction. Patrick Philbin: (14:33) We don't have to go through the constitutionally mandated accommodations process to work out an acceptable solution with the executive branch. We don't have to go to the courts to establish the validity of our subpoenas. At one point manager Schiff said that anything that makes the house even contemplate litigation is evidence of obstruction. Instead, the house claims they can jump straight to impeachment. What this really means in this case is that they're saying for the President to defend the prerogatives of his office to defend constitutionally grounded principles of executive branch privileges or immunities is an impeachable offense. If this chamber accepts that premise that what has been asserted here constitutes an impeachable offense, it will forever damage the separation of powers. It will undermine the independence of the executive and destroy the balance between the legislative and executive branches that the framers crafted in the constitution. Patrick Philbin: (15:39) As professor Turley testified before, the house judiciary committee basing impeachment on this obstruction theory would itself be an abuse of power by Congress. And I'd like to go through that and unpack and explain some of that and I'll start by outlining the three what Trump administration actually did in response to subpoenas because there are three different actions, three different legally based assertions for resisting different subpoenas that the Trump administration made. And I pointed out on Saturday, there has been this constant refrain from the House Democrats that there was just blanket defiance, blanket obstruction as if it were unexplained obstruction. Just we won't cooperate without more. And that's not true. There were very specific legal grounds provided and each one was supported by an opinion from the Department of Justice's office of legal counsel. Patrick Philbin: (16:41) So the first is executive branch officials declined to comply with subpoenas that had not been authorized. And that's the point I made at the beginning. There was no vote from the house without a vote from the house. The subpoenas that were issued were not authorized. And I pointed out that in an October 18th letter from the white house counsel, that specific ground was explained and wasn't just from the white house council. There were other letters on the screen now as of October 15th letter from OMB, which explained, absent a delegation by a house rule or a resolution of the house, none of your committees has been delegated jurisdiction to conduct an investigation pursuant to the impeachment power under article one, section two of the constitution. And the letter went on to explain that legal rationale. Not blanket defiance. There are specific exchanges of letters explaining these legal grounds for resisting. The second ground. The second principle that the Trump administration asserted was that some of these subpoenas purported to require the President's senior advisors, his close advisors to testify following at least 50 years of precedent. Patrick Philbin: (17:58) The Department of Justice's office of legal counsel, advised the three senior advisors to the President, the acting white house chief of staff, the legal advisor to the national security council, and the deputy national security advisor. Were absolutely immune from compelled congressional testimony. And based on that advice from the office of legal counsel, the President directed those advisors not to testify. Administrations of both political parties have asserted this immunity since the 1970s. President Obama asserted it as to the director of office of political strategy and outreach. President George W. Bush asserted it as to his former counsel and to his white house chief of staff. President Clinton asserted it as to two of his counsels. President Reagan asserted it as to his counsel Fred Fielding and President Nixon asserted it. This is not something that was just made up recently. There's a decades long history of the department of justice providing the. Patrick Philbin: (19:03) ... History of the Department of Justice providing the opinion that senior advisors to the president are immune from compelled congressional testimony. And it's the same principle that was asserted here. And there are important rationales behind this immunity. One is that the president's most senior advisors are essentially his alter egos. And allowing Congress to subpoena them and compel them to come testify would be tantamount to allowing Congress to subpoena the president and force him to come testify. But that under the separation of powers would not be tolerable. Congress could no more do that with the president THAN the president could force members of Congress to come to the White House and answer to him. Patrick Philbin: (19:49) There's also a second, an important rationale behind this immunity and that relates to executive privilege. The immunity protects the same interests that underlie executive privilege. The Supreme Court has recognized executive privilege that protects the confidentiality of communications with the president and deliberations within the executive branch is as the Court put it in the United States v. Nixon, "The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution." Patrick Philbin: (20:25) So the Supreme Court has recognized the executive needs this privilege to be able to function. It's rooted in the separation of powers. As Attorney General Janet Reno advised President Clinton, the immunity such advisers enjoy from testimonial compulsion by a congressional committee is absolute and may not be overborne by competing congressional interests. So that's Attorney General Reno and President Clinton. This is not a partisan issue. This is not a Republican or Democrat issue. Administrations of both parties assert this principle of immunity for senior advisers. Patrick Philbin: (21:02) And why does it matter? It matters because the Supreme Court has explained the fundamental principle behind executive privilege is that it's necessary to have confidentiality and communications in deliberations in order to have good and worthwhile deliberations in order to have people provide their candid advice to the president. Because if they knew what they were going to say was going to be on the front page of the Washington Post the next day or the next week, they wouldn't tell the president what they actually thought. If you want to have good decision-making, there has to be that zone of confidentiality. Patrick Philbin: (21:45) And this is the way the Supreme Court put it, "Human experience teaches that those who expect public dissemination of their remarks, may will temper candor with a concern for appearances and for their own interests to the detriment of the decision- making process." That was also from United States v. Nixon. So those are exactly the interests that are protected by having senior advisors to the president be immune from compelled congressional testimony. Because once someone is compelled to sit in the witness seat and start answering questions, it's very hard for them to protect that privilege. To make sure that they don't start revealing something that was discussed. Patrick Philbin: (22:27) So for a small circle of those close to the president for the past 40 to 50 years, administrations of both parties have insisted on this principle. Now, the other night, the House managers, when we were here very late last week, they suggested that executive privilege was a distraction and Manager Nadler called it nonsense. Not at all. It is a principal recognized by the Supreme Court, a constitutional principle grounded in the separation of powers. They also asserted that this immunity has been rejected by every court that has addressed it as if to make it seem that lots of courts have addressed this. They've all said that this theory just doesn't fly. That's not accurate. That's not true. In fact, in most instances, once the president asserts immunity for a senior adviser, the accommodations process between the executive branch and the legislature begins and there's usually some compromise to allow perhaps some testimony not in an open hearing but in a closed hearing or in a deposition perhaps to provide some other information instead of live testimony, there's a compromise. Patrick Philbin: (23:44) But the only two times it's been litigated, district courts, it is true rejected the immunity. One was in a case involving a former counsel to President George W. Bush, Harriet Myers. The district court rejected the immunity, but immediately on appeal, the Court of Appeals for the D.C. Circuit stayed that decision. And that decision means, to stay that district court decision, that the appellate court thought there was a likelihood of success on appeal, that the executive branch might succeed or at a minimum that the issue of immunity presented questions going to the merits so serious, substantial, difficult and doubtful as to make them a fair ground for litigation. So the first decision was stayed. The second district court decision is still being litigated right now. It's the McGahn case that the House has brought trying to get testimony from former counsel to President Trump, Donald McGahn. And that case was just argued in the D.C. Circuit on January 3rd. So there is no established law suggesting that this immunity somehow has been rejected by the courts. It's still being litigated right now. And it is an immunity that is a standard principle asserted by every administration of both parties for the past 40 years. Asserting that principle can't be treated as obstruction of Congress. Patrick Philbin: (25:14) The third action that the president took, the administration took, related to the fact that House Democrats subpoenas' tried to shut out executive branch counsel, agency council, from the depositions of executive branch employees. Now the Office of Legal Counsel concluded the congressional committees may not bar agency counsel from assisting an executive branch witness without contravening the legitimate prerogatives of the executive branch. And an attempt to enforce the subpoena while barring agency counsel, "Would be unconstitutional." The President relied on that legal advice here. As Judge Starr pointed out, the President was consulting with the Department of Justice, receiving advice from the very respected Office of Legal Counsel, and following that advice about the constitutional prerogatives of his office and the constitutional prerogatives of the executive branch. Patrick Philbin: (26:19) Again, administrations of both political parties have recognized the important role that agency council plays. In the Obama Administration, the Office of Legal Counsel stated that exclusion of agency counsel, "could potentially undermine the president's constitutional authority to consider and assert executive privilege where appropriate." So why is agency counsel important? As I tried to explain the executive privilege of confidentiality for communications with the president for internal deliberative communications of the executive branch. Those are important legal rights. They're necessary for the proper functioning of the executive branch and agency counsel is essential to protect those legal rights. When an individual employee goes in to testify, he or she might not know, probably would not know, where is the line for what's covered by executive privilege or deliberative process privilege? Not things that employees necessarily know. Patrick Philbin: (27:21) And their personal counsel, even if they're permitted to have their personal counsel with them. Same thing. Most attorneys for personal for employees don't know the finer points of executive branch confidentiality interests, of deliberative process privilege. And it's also not their job to protect those interests. They're the personal lawyer for the employee who's testifying, trying to protect that employee from potential legal consequences. We usually have lawyers to protect legal rights. So it makes sense when there is an important legal and constitutionally based right at stake, the executive privilege, that there should be a lawyer there to protect that right for the executive branch. And that's the principle that the Office of Legal Counsel endorsed. Patrick Philbin: (28:13) This also doesn't raise any insurmountable problems for congressional investigations or finding information. In fact, just as recently as April 2019 the House Committee on Oversight and Government Reform reached accommodation with the Trump Administration after the administration had declined to make someone available for a deposition because of the lack of agency counsel. And that issue was worked out an accommodation was made and there was some testimony provided in other circumstances. So it doesn't always result in the kind of escalation that was seen here straight to impeachment. The accommodation process can work things out. House Democrats have pointed to a House rule that excludes agency council, but of course a House rule cannot override a constitutional privilege. Patrick Philbin: (29:12) So those are the three principles that the Trump Administration asserted. Now I'd like to turn to the claim that somehow this assertion of these principles created an impeachable offense. The idea that asserting defenses and immunities, legal defenses and immunities in response to subpoenas, acting on advice of the Department of Justice is an impeachable offense is absurd and it is dangerous for our government. Let me explain why. Patrick Philbin: (29:48) House Democrat's obstruction theory is wrong first and foremost because in a government of laws, asserting privileges and rights to resist compulsion is not obstruction. It's a fundamental right in [Bordernircher 00:30:04] v. Hayes, the Supreme Court explained, "To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the state to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is patently unconstitutional." This is a principle that in the past and the Clinton impeachment was recognized across the board that it would be improper to suggest that asserting rights is an impeachable offense. Harvard Law Professor Lawrence Tribe said, "The allegations that invoking privileges and otherwise and using the judicial system to shield information is an abusive power that should lead to impeachment and removal from office is not only frivolous but also dangerous." Patrick Philbin: (30:54) And Manager Nadler then said that the use of illegal privilege is not illegal or impeachable by itself a legal privilege, executive privilege. And Minority Leader Schumer in the Clinton impeachment expressed the same view. Charles Schumer: (31:12) To suggest that any subject of an investigation, much less the President with [inaudible 00:31:18] to the institution of the presidency is abusing power and interfering with an investigation by making legitimate legal claims using due process and asserting constitutional rights is beyond serious consideration. Patrick Philbin: (31:33) And that was exactly correct then and it's exactly correct now. Now more important than simply the principle that asserting rights cannot be considered obstruction, when the rights the president is asserting are based on executive privilege, when they are constitutionally grounded principles that are essential for the separation of powers and protecting the institution of the office of the presidency. To call that obstruction is to turn the Constitution on its head, defending the separation of powers cannot be deemed an impeachable offense without destroying the Constitution. Patrick Philbin: (32:22) Accepting that approach would do permanent damage to the separation of powers and it would allow the House of Representatives to turn any disagreement with the executive over informational demands into a supposed basis for removing the president from office. It would effectively create for us the very parliamentary system that the Framers sought to avoid, because by making any demand for information and goading the executive to a refusal and treating that then is impeachable, the House would effectively be able to function with a no confidence vote power. Patrick Philbin: (32:59) Now, that is not the Framers' design. The legislative and executive branches frequently clash on questions of constitutional interpretation, including about congressional demands for information. These conflicts have happened since the founding. In 1796, George Washington, first president resisted demands from Congress for information about the negotiation of the Jay Treaty. And there have been conflicts between the executive and the Congress in virtually every administration since then about congressional demands for information. Patrick Philbin: (33:34) The Founding Fathers expected the branches to have these conflicts. James Madison pointed out that the legislative, executive and judicial departments must in the exercise or their functions, be guided by the text of the Constitution according to its own of it, each according to its own interpretation of it. It was recognized that there would be friction. Similarly in Federalist 51, Madison pointed out that, "The great security against a gradual concentration of the several powers in the same department, consistent giving to those who administer each department the necessary constitutional means and personal motives to resist encroachment of the others." This is checks and balances, this friction, this clashing between the branches. It is not evidence of an impeachable offense. It's the separation of powers in its practical operation. It's part of the constitutional design. Patrick Philbin: (34:38) Now, the proper and historically accepted way that these disagreements have been resolved is through the constitutionally mandated accommodations process. Courts have explained that the branches are required to engage in an accommodations process to resolve disagreements where there's a clash over a demand for information as the D.C. Circuit has explained. When Congress asked for information from the executive branch that triggers "an implicit constitutional mandate to seek optimal accommodation of the needs of the conflicting branches." The goal is to accommodate the needs of both branches to reach a compromise. If that accommodation process fails, Congress has other tools at its disposal to address a disagreement. Patrick Philbin: (35:29) The House traditionally has proceeded to contempt, to a vote on a contempt resolution. In recent times the House has taken the position that it may sue in the courts to determine the validity of its subpoenas and secure an injunction to enforce them. Now the House managers have pointed out that the Trump Administration, when it was sued in the McGahn case and other cases, has taken the view that those cases are not justiciable in Article III courts. That is correct. That is the view of the Trump Administration. That was the view of the Obama Administration. Patrick Philbin: (36:04) And so there is that resistance in the court cases to the jurisdiction of the courts to address those. But I think house managers are missing the point when they identify that position that the Administration has taken because the House cannot claim that they have a mechanism for going to court. They're in court right now asserting that mechanism in the McGahn case. And then simultaneously claim that, well they don't have to bother with that mechanism, they can jump straight to impeachment. Impeachment under the Constitution is the thermonuclear weapon of inter-branch friction and where there is something like a rifle or a bazooka at the House's disposal to address some friction with the executive branch, that is the next step. It is incrementalism in the Constitution, not jumping straight to impeachment that is the solution. If the House could jump straight to impeachment, that would alter the relationship between the branches. It would suggest that the House could make itself superior over the executive. Dangle the threat of impeachment over any demand for information made to the executive. That's contrary to the Framers' plan. Madison explained that where the executive and the legislative branches come into conflict, this is in Federalist 49, he said, " Neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers." But that is exactly what the House managers have asserted. In this case. They have said that the House becomes supreme. There is no need for them to go to court. The executive must be wrong. Any resistance to their subpoena is obstruction. If you claim that our subpoena is invalid, we don't have to do anything to address that concern we will just impeach you because resistance is obstruction of- Patrick Philbin: (38:03) That concern, we will just impeach you because resistance is obstruction of Congress. And the House Committee even put it this way in their report, the Judiciary Committee, they said that the House itself... They effectively have said that, "The House is the judge of its own powers because," what they said was quote, "The Constitution gives the House the final word," end quote. That's on page 154 of the House Judiciary Committee report and what that is essentially saying, they point to the fact that article one, section two, it gives the House the sole power of impeachment and they claimed that because it's the sole power of impeachment, the courts have no role. The House is the final word. Patrick Philbin: (38:44) It's the judge of its own powers, but that's contrary to The Constitutional design. There is no power that is unchecked in The Constitution. The sole power of impeachment given to the House simply means that that power is given solely to the House, not anywhere else. The Constitution does not say that the power of impeachment is the paramount power that makes all other Constitutional rights and privileges and prerogatives of the other branches fall away. Patrick Philbin: (39:16) The framers recognized that there could be partisan impeachment, there could be impeachments for the wrong reasons, and they did not strip the executive branch of any of its means for protecting its own sphere of authority, its own prerogatives under The Constitution. Those principles of executive privilege, those immunities still survive even in the context of impeachment. The power of impeachment is not like the House can simply flip a switch and say, "Now we're an impeachment," and they have constitutional kryptonite that makes the powers of the executive eliminated. Patrick Philbin: (39:56) So when there are these conflicts, even in the context of an impeachment inquiry, the executive can continue to assert its privileges and prerogatives under The Constitution. And indeed it must in order to protect the institutional interests of the office of the presidency and to preserve the proper balance between the branches under The Constitution. Professor Turley rightly pointed out that by claiming Congress can demand any testimony or documents and then impeach any president who dares to go to the courts, House Democrats were advancing a position that was quote, "Entirely untenable and abusive of an impeachment," end quote. Patrick Philbin: (40:37) Other scholars agree. In the Clinton impeachment, Professor Susan Low Bloch testified that quote, "Impeaching a president for invoking lawful privileges is a dangerous and ominous precedent," end quote. It would achieve exactly the result of Gouverneur Morris, one of the framers warned against at The Constitutional convention. He explained that, quote, "When we make him," referring to the president, "Amenable to justice, however, we should take care to provide some mode that will not make him dependent on the legislature," end quote. Patrick Philbin: (41:15) That is exactly what this article of impeachment would do. It would make the president dependent on the legislature because any demand for information made by Congress could be used as a threat of impeachment to enforce compliance by the executive. And the very theory that the House Democrats have asserted is that there can be no assertions of privileges, no constitutionally based prerogatives of the executive to stand in the way. Patrick Philbin: (41:44) If that theory were true, virtually every president could have been impeached. Virtually every president has asserted, at one time or another, these constitutional prerogatives. President Obama famously in the Fast and Furious investigation refuse to turn over documents that led to his attorney general being held in contempt, but that didn't lead to impeachment. And there could be a long list, Professor Turley testified there'd be a very long list of presidents who would have to be distinguished if the principal's being asserted now, in this case, were applied to all past presidents in history. Patrick Philbin: (42:19) Now, the House Democrats have given a few different justifications for this approach, but I would submit, none can be reconciled with The Constitution. They say that if we cannot impeach the president for this obstruction, then the president is above the law, not so. As I think I pointed out, the president is staying within the law, asserting the law, relying on the legal advice from the Department of Justice to make his arguments based on long recognized constitutional principles and indeed is making the fundamental point with respect to the subpoenas that its Congress that is not above the law. It's the House. Patrick Philbin: (43:03) The House has to follow the law as well. It has to issue valid subpoenas. And if the law isn't followed, those subpoenas are null and void and the executive doesn't have to comply with them. The House Democrats say that they shouldn't go to the courts because the courts have no role in impeachment. I think I've pointed out that the House Democrats can't say that they have the... Just because of the provision of the sole power of impeachment, that it's the paramount power and that no other branch plays any role in providing a check on how that power is exercised. And in addition, the House Democrats have gone to court. Patrick Philbin: (43:46) In the McGann case that they're litigating right now, they have asserted that that is part of the impeachment inquiry. The Trump administration has explained that it was not validly part of the impeachment inquiry, but that is the ground on which they are litigating that. They say that they have no time for the courts. I think what that really means is they have no time for the rule of law and the way that they're pursuing the inquiry. Patrick Philbin: (44:14) The other day, one of the House managers actually said on the floor of the Senate that they had to get moving. They couldn't wait for litigation because they had to impeach the president before the election. That's not a valid reason to not pursue litigation in the courts. And I think it's relevant to bear in mind, what sort of delay are we talking about? In the McGann case that the House manager's referred to a number of times, which they had pointed out, they presented as being very long and drawn out, they issued a subpoena in April, but they did not file a lawsuit until August. Patrick Philbin: (44:49) By November, November 25th, they had a decision from the district court and it was argued on appeal in the DC Circuit on January 3rd. For litigation, that's pretty fast, and it can go faster. In the Nixon case during Watergate, the special prosecutor issued a subpoena on April 18th, 1974 on May 20th, so in less than a month, the District Court denied a motion to quash the subpoena. Patrick Philbin: (45:18) On May 31st the Supreme Court agreed to hear the case granting cert before judgment in the court of appeals. And on July 24th the Supreme Court issued a decision, that's lightening fast. So when there is urgency to the case, when there is a reason for it, there can be expedition in the courts and a decision can be had in a timely manner. And the one case that actually arose from these impeachment proceedings, it was the House that derailed the case. Patrick Philbin: (45:52) This was the case involving Deputy National Security Advisor, Charlie Kupperman. Because when he received a subpoena, he went to court and asked the court for a declaratory judgment explaining what his obligations were. Should he take the directive from the president that he was immune and not go? Or should he obey the subpoena? Now, in that case, he filed suit on October 25th. The court, within a few days, set an expedited briefing schedule, but the House withdrew the subpoena on November 5th just 11 days later in order to moot the case. Patrick Philbin: (46:27) So I think litigation is a viable avenue along with the accommodation process as a first step. Then if the House believes that it can go to court and wants to litigate the jurisdiction and litigate the validity of its subpoenas, that's also available to them. But impeachment as the first step, doesn't make any sense. And I should point out in part when the House managers say they didn't have time to litigate, they didn't have time to go to the courts, but they now come to this chamber and say, "This chamber should issue some more subpoenas. This chamber, she gets some witnesses that we didn't bother to fight about." Patrick Philbin: (47:10) What do you think will happen then? That there won't be similar assertions of privilege and immunity? That there wouldn't be litigation about that? Again, this goes back to the point that I made. If you put your imprimatur on a process that was broken and say, "Yes, that was a great way to run things. This was a great package to bring here and we'll clean up the mess and issue subpoenas and try to do all the work that wasn't done," then that becomes the new normal. Patrick Philbin: (47:38) And that doesn't make sense for this body. Proper way to have things handled is to have the House, if it wants to bring an impeachment here ready for trial, it has to do the investigation. The information it wants to get, if there's going to be resistance, that has to be resolved and it has to be ready to proceed. Not transfer the responsibility to this chamber to do the work that hasn't been done. Patrick Philbin: (48:10) They also assert that President Trump's assertion of these privileges is somehow different because it's unprecedented and it's categorical. Well, it's unprecedented perhaps in the sense that there was a broad statement that a lot of subpoenas wouldn't be complied with, but that's because it was unprecedented for the House to begin these proceedings without voting to authorize a committee to issue the subpoenas. That was the first unprecedented step. That's what had never happened before in history. So of course the response to that would be in some sense unprecedented. Patrick Philbin: (48:47) And as the President simply pointed out that without that vote there were no valid subpoenas. And there have also been categorical refusals in the past. President Truman, when the House Committee on un-American activities in 1948 issued subpoenas to his administration, issued a directive to the entire executive branch that any subpoena or demand or request for information reports or files of the nature described in those subpoenas shall be respectfully declined on the basis of this directive. And he referred all such inquiries to the office of the President for such response as the President may determined to be in the public interest and the Truman administration responded to none of them. Patrick Philbin: (49:35) A last point on the House Democrats claimed that the privileges simply disappear because this is the impeachment power of the House. They've referred a number of times the United States versus Nixon, the Supreme Court decision suggesting that that somehow determines that when you're in impeachment inquiry, executive privilege falls away. Well, that's not true. In fact, United States versus Nixon was not even actually addressing a congressional subpoena. Patrick Philbin: (50:04) It was a subpoena from the special prosecutor. And even in that context, the court did not say that executive privilege simply disappears. Instead, this court said, quote, "It is necessary to resolve these competing interests," they are the interest of the judicial branch and administering a criminal prosecution. The case where the evidence was needed, "These competing interests in a manner that preserves the essential functions of each branch." And it even held out the possibility that in the field of foreign relations in national security, there might be something approaching an absolute executive privilege, and that's exactly the field that we're in, in this case; foreign relations and national security matters. Patrick Philbin: (50:47) Another thing that you've heard is that President Clinton voluntarily cooperated with the investigation that led to his impeachment, produced tens of thousands of documents, but that's not really accurate. That was only after long litigation again and again about assertions of privilege. He asserted numerous privileges. The House Judiciary Committee then explained, quote, "During the Lewinsky investigation, President Clinton abused his power through repeated frivolous assertions of executive privilege by at least five of his aides," end quote. Patrick Philbin: (51:23) Unlike the House in this case, independent counsel star first negotiated with the white House and then litigated those claims and got them resolved. Ultimately, the House Managers argue that all of the problems with their obstruction theory should be brushed aside and the President's assertions of immunities and defenses have to be treated as something nefarious because as Mr Nadler put it, "Only guilty people try to hide the evidence." Patrick Philbin: (51:55) That's what he said last Tuesday night. And Mr Schiff similarly said in discussing the assertion of the executive branch's constitutional rights that quote, "The innocent do not act this way," end quote. Really? Is that the principle in the United States of America? That if you assert legal privileges or rights, that means you're guilty? That the innocent don't assert their rights? That the President can't defend The Constitutional prerogatives of his office? That doesn't make any sense At bottom, the second article of impeachment comes down to a dispute over a legal issue relating to constitutional limits on the ability of the House to compel information from the executive. No matter how House Democrats try to dress up their charges, a difference of legal opinion does not rise to the level of impeachment. Until now, the House has repeatedly rejected attempts to impeach presidents based on legal disputes over assertions of privilege. Patrick Philbin: (53:02) As Judge Starr pointed out in the Clinton proceeding, the House Judiciary Committee concluded that the President had improperly exercised executive privilege, yet still concluded that it did not have the ability to second guess the rationale behind the President or what was in his mind asserting executive privilege and it could not treat that as an impeachable offense. It rejected an article of impeachment based on Clinton's assertions of privilege. Patrick Philbin: (53:33) And as the House Democrats own witness, Professor Gerhardt has explained, in 1843 President Tyler similarly was investigated for potential impeachment, his attempts to protect and assert what he regarded as the prerogatives of his office, because he had resisted demands for information from Congress, Professor Gerhardt explained that Tyler's attempts to protect and assert what he regarded as the prerogatives of his office were a function of his constitutional and policy judgments and they could not be used, the congress determined, to impeach him. President Trump's resistance to congressional subpoenas was no less a function of his constitutional and policy judgments, and it provides no basis to impeach him. Patrick Philbin: (54:23) I'd like to close with a final thought. One of the greatest issues and perhaps the greatest issue for your consideration in this case is how the precedent set in this case will affect the future. The framers recognized that there would be partisan and illegitimate impeachments. Hamilton expressly warned in Federalist number 65 about impeachments that reflected what he called, quote, "The persecution of an intemperate or designing majority in the House of Representatives," end quote. Patrick Philbin: (55:01) That is exactly what this case presents. And justice story recognized that the Senate provided the proper tribunal for trying impeachments because it was believed by the framers to have a greater sense of obligation to the future, to future generations, not to be swayed by the passions of the moment. Patrick Philbin: (55:26) And one of the essential questions here is will this chamber adopt a standard for impeachment, and diluted standard, that fundamentally disrupts, damages, alters the separation of powers in our constitutional structure of government? Because that is what both the first article, for reasons that Judge Starr and Professor Dershowitz have covered, and the second article, the obstruction charge would do. Patrick Philbin: (55:56) And so I'll close just with a quotation from one of the Republican senators who crossed the aisle and voted against convicting President Andrew Johnson during his impeachment trial, it was Lyman Trumbull, who explained, I think the great principle that applies here. He said, quote, "Once we set the example of impeaching a president for what, when the excitement of the hour shall have subsided, will be regarded as insufficient causes. No future president will be safe. And what then becomes of the checks and balances of The Constitution so carefully devised and so vital to its perpetuity, they are all gone." Thank you, Mr Chief Justice.

Alan Dershowitz Defense Argument

Alan Dershowitz: (00:00) Mr. Chief Justice, distinguished members of the Senate, our friends, lawyers, fellow lawyers it's a great honor for me to stand before you today to present a constitutional argument against the impeachment and removal not only of this president, but of all and any future presidents who may be charged with the unconstitutional grounds of abuse of power and obstruction of Congress. I stand before you today as I stood in 1973 and 1974 for the protection of the constitutional and procedural rights of Richard Nixon, who I personally abhorred and whose impeachment I personally favored, and as I stood for the rights of Bill Clinton, who I admired and whose impeachment I strongly opposed. Alan Dershowitz: (00:56) I stand against the application and misapplication of the constitutional criteria in every case and against any president without regard to whether I support his or her parties or policies. I would be making the very same constitutional argument had Hillary Clinton, for whom I voted, been elected and had a Republican House voted to impeach her on these unconstitutional grounds. Alan Dershowitz: (01:26) I am here today because I love my country and our constitution. Everyone in this room shares that love. I will argue that our constitution and its terms high crimes and misdemeanors do not encompass the two articles, charging abuse of power and obstruction of Congress. In offering these arguments, I stand in the footsteps and in the spirit of justice Benjamin Curtis who was of counsel to impeach president Andrew Johnson and who explained to the Senate that quote, "A greater principle was at stake than the fate of any particular president." And of William Evarts, a former secretary of state, another one of Andrew Johnson's lawyers, who reportedly said that he had come to the defense table not as a partisan, not as a sympathizer, but to defend the constitution. Alan Dershowitz: (02:26) The constitution of course provides that the Senate has the sole role and power to try all impeachments. In exercising that power the Senate must consider three issues in this case. The first is whether the evidence presented by the House managers establishes by the appropriate standard of proof, proof beyond a reasonable doubt, that the factual allegations occurred. The second is whether if these factual allegations occurred, did they rise to the level of abuse of power and/or obstruction of Congress? Finally, the Senate must determine whether abuse of power and obstruction of Congress are constitutionally authorized criteria for impeachment. Alan Dershowitz: (03:08) The first issue is largely factual, and I leave that to others. The second is a combination of traditional and constitutional law, and I will touch on those. The third is a matter of pure constitutional law. Do charges of abuse and obstruction rise to the level of impeachable offenses under the constitution? I will begin as all constitutional analysis begins with the text of the constitution governing impeachment. I will then examine why the framers selected the words they did is the sole criteria authorizing impeachment. In making my presentation, I will transport you back to a hot summer in Philadelphia and a cold winter in Washington. I will introduce you to patriots and ideas that helped shape our great nation. To prepare for this journey I have immersed myself in a lot of dusty old volumes from the 18th and 19th century. I ask your indulgence as I quote from the wisdom of our founders. Alan Dershowitz: (04:12) This return to the days of yesteryear is necessary because the issue today is not what the criteria of impeachment should be, not what a legislative body or a constitutional body might today decide are the proper criteria for impeachment of a president, but what the framers of our constitution actually chose and what they expressively and implicitly rejected. I will ask whether the framers would have accepted such vague and open-ended terms as abuse of power and obstruction of Congress as governing criteria. Alan Dershowitz: (04:50) I will show by a close review of the history that they did not and would not accept such criteria for fear that these criteria would turn our new republic into a British style parliamentary democracy in which the chief's executives tenure would be in the words of James Madison, the father of our constitution, "At the pleasure of the legislature." The conclusion I will offer for your consideration is similar, though not identical, to that advocated by highly respected justice Benjamin Curtis, who as you know, dissented from the Supreme court's notorious decision in Dred Scott and who after resigning in protest from the high court served as counsel to president Andrew Johnson in the Senate impeachment trial. Alan Dershowitz: (05:40) He argued and I quote, "There can be no crime, there can be no misdemeanor without a law written or unwritten, express or implied." In so arguing, he was echoing the conclusion reached by Dean Theodore Dwight of the Columbia Law School who wrote in 1867 just before the impeachment, "Unless a crime is specifically named in the constitution, treason and bribery, impeachments like indictments can only be instituted for crimes committed against the statutory law of the United States." As Judge Starr said earlier today, he described that as "The weight of authority being on the side of that proposition at a time, much closer to the framing than we are today." Alan Dershowitz: (06:25) The main thrust of my argument, however, and the one most relevant to these proceedings is that even if that position is not accepted, even if criminal conduct were not required, the framers of our constitution implicitly rejected, and if it had been presented to them, would have explicitly rejected such vague terms as abuse of power and obstruction of Congress as among the enumerated and defined criteria for impeaching a president. You will recall that among the articles of impeachment against President Johnson were accusations of non-criminal but outrageous misbehavior, including ones akin to the abuse of power and obstruction of Congress. For example, Article 10 charged Johnson "Did attempt to bring into disgrace, ridicule, hatred, and contempt and reproach the Congress of the United States." Article 11 charge Johnson with "Denying that Congress was authorized by the constitution to exercise legislative power and denying that the legislation of said Congress was obligatory upon him." Alan Dershowitz: (07:32) Pretty serious charges. Here's how Justice Curtis responded to these non criminal charges. Quote, "My first position is that when Congress speaks of treason, bribery, and other crimes and misdemeanors, it refers to and includes only high criminal offenses against the United States made so by some law of the United States existing when the acts complained of were done. And I say," he continued, "that this is plainly to be inferred from each and every one of the provisions of the constitution on the subject of impeachment." And I will briefly review those other provisions of the constitution with you. Alan Dershowitz: (08:07) Judge Curtis's interpretation is supported, indeed in his view, it was compelled by the constitutional text. "Treason, bribery and other high crimes and misdemeanors are high crimes, other high crimes and misdemeanors must be akin to treason and bribery." Curtis cited the Latin phrase, [foreign language 00:08:25], I'm sorry for the mispronunciation, referring to a classic rule of interpretation that when the meaning of a word that is part of a group of words is uncertain, you should look to the other words in that group that provide interpretive context. Alan Dershowitz: (08:42) The late Justice Antonin Scalia gave the following current example. "If one speaks of Mickey Mantle, Rocky Marciano, Michael Jordan, and other great competitors, the last noun does not reasonably refer to Sam Walton, who was a great competitor but in business, or to Napoleon, a great competitor on the battlefield." Applying that rule to the groups of words, treason, bribery, and other high crimes and misdemeanors, the last five words should be interpreted to include only serious criminal behavior akin to treason and bribery. Alan Dershowitz: (09:15) Justice Curtis then reviewed the other provisions of the constitution that relate to impeachment. First, he started with the provision that says, "The President of the United States shall have the power to grant reprieves and pardons," listen now, "for offenses against the United States, except in cases of impeachment." He cogently argued that if impeachment were not an offense against the United States, was not based on an offense against the United States, there would've been no need for any constitutional exception. Alan Dershowitz: (09:50) He then went on to a second provision. "The trial of all crimes, except in cases of impeachment, shall be by jury." This demonstrated, according to Curtis, that impeachment requires a crime. But unlike other crimes, it does not require a jury trial. You are the judge and the jury. He also pointed out that impeachment trial, by the express words of the constitution, requires an acquittal or a conviction, judgments generally rendered only in the trial of crimes. Now, President Johnson's lawyers, of course, argued in the alternative as all lawyers do when there are questions of fact and of law. He argued that Johnson did not violate the articles of impeachment, as you've heard from other lawyers today, but even if he did that the articles do not charge impeachable offenses, which is the argument that I am making before you this evening. Justice Curtis's first position, however, was that the articles did not charge an impeachable offense because they did not allege high crime offenses against the United States. Alan Dershowitz: (11:02) According to a Harvard historian and law professor, Nicholas Buoy, Curtis's constitutional arguments were persuasive to at least some senators who were no friends with President Johnson, including the co-authors of the 13th and the 14th amendments. As Senator William Pitt Fessenden later put it, "Judge Curtis gave us the law and we followed it." Senator James W. Grimes echoed Curtis's argument by refusing to accept an interpretation of high crimes and misdemeanors that changes according to the law of each senator's judgment enacted in his own bosom after the alleged commission of the offense. Though he desperately wanted to see President Johnson, who he despised, out of office, he believed that an impeachment and removal without the violation of law would be quote, "Construed into approval of impeachments as part of future political machinery." Alan Dershowitz: (12:06) According to Professor Buoy, Justice Curtis's constitutional arguments may well have contributed to the decision, by at least some of the seven Republican dissidents, to defy their party and vote for acquittal, which was secured by a single vote. Now today, Professor Buoy has an article in the New York Times in which he repeats his view that quote, "Impeachment requires a crime." But he now argues that the articles of impeachment do charge crimes. He is simply wrong. He is wrong because in the United States versus Hudson, a case decided more than 200 years ago now, the United States Supreme Court ruled that federal courts have no jurisdiction to create common law crimes. Crimes are only what are in the statute book. Alan Dershowitz: (12:57) So Professor Buoy is right that the constitution requires a crime for impeachment, but wrong when he says that common law crimes can be used as a basis for impeaching even though they don't appear in the statute books. Now, I'm not here arguing that the current distinguished members of the Senate are in any way bound, legally bound, by Justice Curtis's arguments or those of Dean Dwight. But I am arguing that you should give them serious consideration, the consideration to which they're entitled by the eminence of their author and the role they may have played in the outcome of the closest precedent to the current case. Alan Dershowitz: (13:39) Now I want to be clear there's a nuance difference between the arguments made by Curtis and Dwight and the argument that I am presenting here today, based on my reading of history. Curtis argued that there must be a specific violation of pre-existing law. He recognized that at the time of the constitution there were no federal criminal statutes. Of course not. The constitution established the national government, so we couldn't have statutes prior to the establishment of our constitution and our nation. This argument is offered today by proponents of this impeachment on the claim that framers could not have intended to limit the criteria for impeachment to criminal behavior. Alan Dershowitz: (14:22) Justice Curtis addressed that issue and that argument head on. He pointed out that crimes such as bribery would be made criminal by the laws of the United States, which the framers of the constitution knew would be passed. In other words, he anticipated that Congress would soon enact statutes punishing and defining crimes such as burglary, extortion, perjury, et cetera. He anticipated that and he based his argument in part on that. The constitution already included treason as a crime and that was defined in the constitution itself. And then it included other crimes. Alan Dershowitz: (15:03) But what justice Curtis said is that you could include laws written or unwritten, express or implied, by which he meant common law, which at the time of the constitution there were many common law crimes. And they were enforceable even federally until the Supreme Court, many years later, decided that common law crimes were no longer part of federal jurisdiction. Alan Dershowitz: (15:27) So the position that I've derived from the history would include, and this is a word that has upset some people, but would include criminal-like conduct akin to treason and bribery. There need not be, in my view, conclusive evidence of a technical crime that would necessarily result in a criminal conviction. Let me explain. For example, if a president were to receive or give a bribe outside of the United States and outside of the statute of limitations, he could not technically be prosecuted in the United States for such a crime. But I believe he could be impeached for such a crime because he committed the crime of bribery, even though he couldn't technically be accused of it in the United States. That's the distinction that I think we draw. Or if a president committed extortion, perjury, or obstruction of justice, he could be charged with these crimes as impeachable offenses because these crimes, though not specified in the constitution, are akin to treason and bribery. Alan Dershowitz: (16:29) This would be true even if some of the technical elements, time and place, were absent. What Curtis and Dwight and I agree upon, and this is the key point in this impeachment case, please understand what I'm arguing, is that purely non-criminal conduct including abuse of power and obstruction of Congress are outside the range of impeachable offenses. That is the key argument I'm presenting today. Alan Dershowitz: (16:59) This view was supported by text writers and judges close in time to the founding. William Oldnall Russell, who's 1819 treatise on criminal law was a Bible among criminal law scholars and others, define high crimes and misdemeanors as quote, "Such immoral and unlawful acts as are nearly allied and equal in guilt to a felony and yet owing to the absence of some technical circumstances, technical circumstances, do not fall within the definition of a felony." Similar views were expressed by some state courts. Others disagreed. Alan Dershowitz: (17:38) Curtis considered views and those of Dwight, Russell, and others based on careful study of the text and history are not bonkers, absurdist, legal crap clap trap, or other demeaning epithets thrown around by partisan supporters of this impeachment. As Judge Starr pointed out, "They had the weight of authority." They were accepted by the generation of founders and the generations that followed. If they are not accepted by academics today, that shows a weakness among the academics, not among the founders. These who disagree with Curtis's textual analysis are obliged, I believe, to respond with reason counter interpretations, not name-calling. If Justice Curtis's arguments and those of Dean Dwight are rejected, I think then proponents of impeachment must offer alternative principles, alternative standards for impeachment and removal. Alan Dershowitz: (18:43) We just heard that in 1970 Congressman Gerald Ford, who I greatly admired, said the following in the context of an impeachment of a justice. "An impeachable offenses, whatever, a majority of the House of Representatives considered it to be at a given moment in history, et cetera." You all know the quote, Congresswoman Maxine Waters recently put it more succinctly in the context of a presidential impeachment. Here's what she said. "Impeachment is whatever Congress says it is. There is no law." But this lawless view would place Congress above the law. It would place Congress above the constitution. For Congress to ignore the specific words of the constitution itself and substitute its own judgments would be for Congress to do what it is accusing the president of doing. And no one is above the law, not the president and not Congress. Alan Dershowitz: (19:48) This is precisely the kind of view expressly rejected by the framers who feared having a president serve at the pleasure of the legislature. And it is precisely the view rejected by Senator James Grimes when he refused to accept an interpretation of high crimes and misdemeanors that would change according to the law of each senator's judgment enacted in his own bosom. The constitution requires in the words of Gouverneur Morris, "That the criteria for impeachment must be enumerated and defined." Those who advocate impeachment today are obliged to demonstrate how the criteria accepted by the House in this case are enumerated and defined in the constitution. The compelling textual analysis provided by Justice Curtis is confirmed by the debate in the constitutional convention, by the Federalist papers, by the writings of William Blackstone, and I believe by the writings of Alexander Hamilton, which were heavily relied on by lawyers at the time of the Constitution's adoption. There were at the time of the constitution is adoption two great debates that went on, and it's very important to understand the distinction between these two great debates. Alan Dershowitz: (21:03) The first hard to imagine today, but the first was should there be any power to impeach a president at all? And there were several members of the founding generation and of the framers of the constitution who said, "No." Who said, "No, a president shouldn't be allowed to be impeached." The second, and the second is very, very important in our consideration today is if a president is to be subject to impeachment, what should the criteria be? These are very different issues and they are often erroneously conflated. Alan Dershowitz: (21:44) Let's begin with the first debate during the broad debate about whether a president should be subject to impeachment, proponents of impeachment used vague and open-ended terms such as unfit, obnoxious, corrupt, misconduct, misbehavior, negligence, malpractice, perfidy, treachery, incapacity, peculation, and maladministration. Alan Dershowitz: (22:11) They worry that a president might quote, "Pervert his administration into a scheme of speculation and oppression." That he might be corrupted by foreign influence. And yes, this is important, that he might have great opportunities of abusing his power. Those were the concerns that led the framers to decide that a president must be subject to impeachment. But not a single one of the framers suggested that these general fears justifying the need for an impeachment and removal mechanism should automatically be accepted as a specific criterion for impeachment. Far from it, as Governor Morris aptly put it. "Corruption and some other offenses ought to be impeachable, but the cases ought to be enumerated and defined." Alan Dershowitz: (23:02) This ought to be enumerated and defined. The great fallacy of many contemporary scholars and pundits and with due respect, members of the House of Representatives, is that they fail to understand the critical distinction between the broad reasons for needing an impeachment mechanism and the carefully enumerated and defined criteria that should authorize the deployment of this powerful weapon. Alan Dershowitz: (23:27) Let me give you a hypothetical example that might have faced Congress or certainly will face Congress. Let's assume that there is a debate over regulating the content of social media, whether we should have regulations or criminal civil regulations over Twitter and Facebook, et cetera. In the debate over regulating the social media, proponents of regulation might well cite broad dangers such as false information, inappropriate content, hate speech. Those are good reasons for having regulation, but when it came to enumerating and defining what should be prohibited, such broad dangers would have to be balanced against other important policies, and the resulting legislation would be much narrower and more carefully defined than the broad dangers that necessitated some regulation. Alan Dershowitz: (24:24) The framers understood and acted on this difference, but I'm afraid that many scholars and others and members of Congress failed to see this distinction and they cite some of the fears that led to the need for impeachment mechanism. They cite them as the criteria themselves. That is a deep fallacy. It's crucially important that the distinction be sharply drawn between arguments made in favor of impeaching and the criteria then decided upon to justify the impeachment specifically of a president. The framers understood this and so they got down to the difficult business of enumerating and defining precisely which offenses among the many that they fear the president might commit should be impeachable as distinguished from those left to the voters to evaluate. Alan Dershowitz: (25:16) Some framers such as Roger Sherman wanted the president to be removable by the national legislature at its pleasure. Much like the British prime minister can be removed by a simple vote of no confidence by parliament. That view was rejected. Benjamin Franklin opposed decidedly the making of the executive quote, the mere creature of the legislature, Gouverneur Morris was against the dependence of the executive on the legislature. Considering the legislature, you will pardon me quoting this a great danger to be apprehended. I don't agree with that. Alan Dershowitz: (25:49) James Madison expressed concerns about the president being improperly dependent on the legislature. Others worried about a feeble executive. Hearing these and other arguments against turning the new Republican to a parliamentary democracy in which the legislature had the power to remove the president, the framers set out to strike the appropriate balance between the broad concerns that led them to vote for a provision authorizing the impeachment of the president and the need for specific criteria, not subject to legislative abuse or overuse. Among the criteria proposed were malpractice, neglect of duty, malconduct, neglect in the execution of office, and this word we'll come back to talk, maladministration. It was a response to that last term, a term used in Britain, as a criteria for impeachment that Madison responded, "So vague a term will be equivalent to a tenure during the pleasure of the Senate." Upon hearing Madison's objections, Colonel Mason withdrew maladministration and substituted other high crimes and misdemeanors. Alan Dershowitz: (27:03) Had a delicate proposed inclusion of abusive power or obstruction of Congress as enumerated and defined criteria for impeachment history, strongly suggests that Madison would have simply opposed it and it would have been rejected. I will come back to that argument a little later on when I talk specifically about abuse of power. Indeed Madison worried that a partisan legislature could even misuse the word misdemeanor to include a broad array of non-crimes, so he proposed moving the trial to the nonpartisan Supreme court. The proposal was rejected. Now this does not mean, as some have suggested, that Madison suddenly changed his mind and favored such misuse to expand the meaning of misdemeanor to include broad terms like misbehavior. No. It only meant that he feared, he feared that the word misdemeanor could be abused. His fear is moving to be oppression by the misuse of that term, high crimes and misdemeanors by the House in this case. Alan Dershowitz: (28:08) Now, the best evidence that the broad concerns cited by the framers to justify impeachment were not automatically accepted as criteria. Justifying impeachment is the manner by which the word incapacity, focus on that word please, incapacity was treated. Madison and others focused heavily on the problem of what happens if a president becomes incapacitated. Certainly a president who's incapacitated should not be allowed to continue to preside over this great country, and everyone seemed to agree that the possibility of presidential incapacity is a good and powerful reason for having an impeachment provision. Well, when it came time to establishing criteria for actually removing a president, incapacity was not included. Why not? Presumably because it was too vague and subjective a term. When we had an incapacitated president in the end of the Woodrow Wilson second term, he was not impeached and removed. A constitutional amendment with carefully drawn procedural safeguards against abuse was required to remedy the daunting problem of a president who was deemed incapacitated. Now another reason why incapacitation was not included among impeachable offenses because it's not criminal. It's not a crime to be incapacitated. It's not akin to treason. It's not akin to bribery and it's not a high crime and misdemeanor. The framers believed that impeachable offenses must be criminal in nature and akin to the most serious crimes. Incapacity simply did not fit into this category, nothing criminal about it, so the constitution had to be amended to include a different category of non-criminal behavior that warranted removal. I urge you to consider seriously that important part of the history of the adoption of our constitution. Alan Dershowitz: (30:17) I think that Blackstone and Hamilton also support this view. There's no disagreement over the conclusion that the words treason, bribery, or other high crimes, those words require criminal behavior. The debate is only over the words and misdemeanors. The framers of the constitution were fully cognizant to the fact that the word misdemeanor was a species of crime. The book that was most often deemed authoritative was written by William Blackstone in Great Britain, and here is what he says about this in the version that was available to the framers. "A crime or misdemeanor is an act committed or omitted in violation of a public law either forbidding or commanding it." The general definition comprehends both crimes and misdemeanors, which properly speaking, are mere synonymous terms. Mere synonymous terms. He then went on though in common usage, "The word crimes is made to denote such offenses or of a deeper and more or atrocious die while smaller faults and omissions of less consequence are comprised under the gentler name of misdemeanors only." Alan Dershowitz: (31:35) Interestingly though, he pointed out that misdemeanors were not always so gentle. There was a category called capital misdemeanors where if you stole somebody's pig or other foul, you could be sentenced to death, but it's only for a misdemeanor. Don't worry, it's not for a felony. But there were misdemeanors that were capital in nature. Moreover, Blackstone wrote that parliamentary impeachment quote, "Is a prosecution. A prosecution of already known and established law presented to the most high and Supreme court of criminal jurisdiction." Analogous to this great court. He observed that a commoner can be impeached, but only for high misdemeanors. A peer may be impeached for any crime. Any crime. This certainly suggests that Blackstone deemed high misdemeanors to be a species of crime. Alan Dershowitz: (32:27) Hamilton is a little less clear in this issue, and not surprisingly because he was writing in Federalist No. 65, he was writing not to define what the criteria for impeachment were, he was writing primarily in defense of the Constitution as written and less to define its provisions, but he certainly cannot be cited in favor of criteria such as abuse of power or obstruction of Congress nor of impeachment voted along party lines. Alan Dershowitz: (32:58) He warned that the greatest danger, these were his words, "The greatest danger is that the decision will be regulated more by the comparative strength of parties than by the real demonstrations of innocence or guilt." In addition to using the criminal terms innocence or guilt, Hamilton also referred to quote, "Prosecution and sentence." He cited the constitutional provisions that states that the party convicted shall nevertheless be liable and subject to a criminal trial as a reason for not having the president tried before the Supreme Court. He feared a double prosecution, a variation of double jeopardy, before the same judiciary. These points all sound in criminal terms, but advocates of a broad open-ended noncriminal interpretation of high crimes and misdemeanors insist that Hamilton is on their side. They cite the following words regarding the court of impeachment, and I think I've heard these words quoted more than any other words in support of a broad view of impeachment and they're misunderstood. Alan Dershowitz: (34:02) Here's what he said when describing the court of impeachment. He said, "The subjects of its jurisdiction," those are important words, "The subjects of its jurisdiction," by which he meant treason, bribery and other high crimes and misdemeanors. "The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political as they relate chiefly to injuries done immediately to society itself." Those are Hamilton's words. They're often misunderstood as suggesting that the criteria authorizing impeachment include the misconduct of public men or the abuse or violation of some public trust. That is a misreading. Alan Dershowitz: (34:52) These words were used to characterize the constitutional criteria that are the subject of the jurisdiction of the court of impeachment, namely treason, bribery or other high crimes and misdemeanors. Those specified crimes are political in nature. They are the crimes that involve the misconduct of public men and the abuse of violation of some public trust. Hamilton was not expanding the specified criteria to include as independent grounds for impeachment, misconduct, abuse, or violation. If anything, he was contracting them to require, in addition to proof of the specified crimes, also proof that the crime must be of a political nature. This would exclude President Clinton's private nonpolitical crime. In fact, and this is interesting, Hamilton's view was cited by Clinton's advocates as contracting, not expanding, the meaning of high crimes. Today some of these same advocates look at the same words and cite them as expanding its meaning. Clinton was accused of a crime, perjury, and so the issue in his case was not whether the constitution required a crime for impeachment. Instead, the issue is where the Clinton's alleged crime could be classified as a high crime in light of its personal nature. Alan Dershowitz: (36:20) During the Clinton impeachment, I stated in an interview that I did not think that a technical crime was required, but that I did think that abusing trust could be considered. I said that. At that time, I had not done the extensive research on that issue because it was irrelevant to the Clinton case and I was not fully aware of the compelling counter arguments. So I simply accepted the academic consensus on an issue that was not on the front burner at the time. But because this impeachment directly raises the issue of whether criminal behavior is required, I have gone back and read all the relevant historical material as nonpartisan academics should always do and have now concluded that the framers did intend to limit the criteria for impeachment to criminal type acts akin to treason, bribery, and they certainly did not intend to extend it to vague and open-ended and non-criminal accusations such as abuse of power and obstruction of Congress. Alan Dershowitz: (37:21) I published this academic conclusion well before I was asked to present the arguments to the Senate, in this case, might switch in attitude purely academic, purely nonpartisan. Nor am I the only participant in this proceeding who has changed his mind. Several members of Congress, several Senators express different views regarding the criteria for impeachment when the subject was President Clinton than they do now. When the president was Clinton, my colleague and friend Laurence Tribe tribe, who is advising Speaker Pelosi now, wrote that a sitting president could not be charged with a crime. Now he's changed his mind. That's what academics do and should do based on new information. If there are reasonable doubts about the intended meaning of high crimes and misdemeanors, Senators might consider resolving these doubts by reference to a legal concept known as Lenity. Lenity goes back to hundreds of years before the founding of our country and was a concept in Great Britain relied upon by many of our own Justices and Judges over the years. It was well known to the legal members of the founding generation. Alan Dershowitz: (38:33) It required that in construing a criminal statute that is capable of more than one reasonable interpretation, the interpretation that favors the defendant should be selected unless it conflicts with the intent of the statute. It has been applied by Chief Justice Marshall Justice Oliver Wendell Holmes, Felix Frankfurter, Justice Antonin Scalia and others. Now applying that rule to the interpretation of high crimes and misdemeanors would require that these words be construed narrowly to require criminal like conduct akin to treason and bribery rather than broadly to encompass abuse of power and obstruction of Congress. In other words, if Senators are in doubt about the meaning of high crimes and misdemeanors, the Rule of Lenity should incline them toward accepting a narrower rather than a broad interpretation, a view that rejects abuse of power and obstruction of Congress as within the constitutional criteria. Now, even if the rule of Lenity is not technically applicable to impeachment, that's a question, certainly the policies underlying that rule are worthy and deserving of consideration as guides to constitutional interpretation. Alan Dershowitz: (39:47) Now here I am making, I think, a very important point. Even if the Senate were to conclude that a technical crime is not required for impeachment, the critical question remains and it's the question I now want to address myself to, do abuse of power and obstruction of Congress constitute impeachable offenses? The relevant history answers that question clearly in the negative. Each of these charges suffers from the vice of being quote, "So vague a term that they will be equivalent of tenure at the pleasure of the Senate." To quote again, the father of our Constitution, abusive of power is an accusation easily leveled by political opponents against controversial presidents. Alan Dershowitz: (40:28) In our long history, many presidents have been accused of abusing their power. I will now give you a list of presidents who in our history have been accused of abusing their power, who would be subject to impeachment under the House Manager's view of the Constitution. George Washington, refusal to turn over documents related to the Jay Treaty. John Adams signing and enforcing the alien and sedition laws. Thomas Jefferson purchasing Louisiana without congressional authorization. I'll go on. John Quincy Adams, Martin Van Bern, John Tyler, arbitrary despotic and corrupt use of the veto power. James Polk, here I quote Abraham Lincoln, Abraham Lincoln accused Polk of abusing his power of his office, contemptuously disregarding the constitution, usurping the role of Congress and assuming the role of dictator. He didn't seek to impeach him. He just sought to defeat him. Abraham Lincoln. Abraham Lincoln was accused of abusing his power for suspending the writ of habeas Corpus during the Civil War. Alan Dershowitz: (41:31) President Grant, Grover Cleveland, William McKinley, Theodore Roosevelt, William Taft, Woodrow Wilson, Franklin Roosevelt, Harry Truman, Jimmy Carter, Ronald Reagan quote, "Concerning Iran contract... And now I say Professor Laurence Tribe said the following quote, "There in lies what appears to be the most serious breach of duty by the president, a breach that may well entail an impeachable abuse of power." George H.W. Bush. The following was released today by the Clinton Gore campaign. In the past weeks, Americans had begun to learn the extent to which George Bush and his administration have abused their governmental power for political purposes. That's how abuse of power should be used, as campaign rhetoric. It should be in statements issued by one political party against the other. That's the nature of the term. Abuse of power is a political weapon and it should be leveled against political opponents. Let the public decide. That's true. Barack Obama, the House committee on the judiciary, held an entire hearing entitled Obama Administration's abuse of power. Now by the standards applied to earlier presidents, nearly any controversial act by a chief executive could be denominated abuse of power. For example, past presidents have been accused of using their foreign policy, even their war powers, to enhance their electoral prospects. Presidents often have mixed motives that include partisan personal benefits along with the national interest. Professor Josh Blackman, constitutional law professor, provided the following interesting example. Alan Dershowitz: (43:08) Quote, "In 1864 during the height of the Civil War, President Lincoln encouraged General William Sherman to allow soldiers in the field to return to Indiana to vote. What was Lincoln's primary motivation?" The professor asks, "He wanted to make sure that the government of Indiana remained in the hands of Republican loyalists who would continue the war until victory. Lincoln's request risks undercutting the military effort by depleting the ranks. Moreover, during this time, soldiers from the remaining states face greater risks than did the returning Hoosiers." The professor continues. "Lincoln had dueling motives. Privately he sought to secure victory for his party, but the president as a president and as a party leader and Commander in Chief made a decision with life or death consequences." Professor Blackman drew the following relevant conclusion from this and other historical events. He said, "Politicians routinely promote their understanding of the general welfare while in the back of their minds considering how these actions will affect their popularity. Often the two concepts overlap. What's good for the country is good for the official's reelection. All politicians," he said, "understand that dynamic." Like all human beings, presidents and other politicians persuade themselves that their actions seen by their opponents as self-serving are primarily in the national interest. In order to conclude that such mixed motive actions constituted abuse of power, opponents must psychoanalyze the president and attribute to him a singular self-serving motive. Alan Dershowitz: (44:50) Such a subjective probing of motives cannot be the legal basis for a serious accusation of abuse of power that could result in the removal of an elected president. Yet this is precisely what the managers are claiming. Here's what they say, quote, "Whether the president's real reason, the ones actually in his mind are at the time legitimate." What a standard. What was in the president's mind? Actually in his mind? What was the real reason? Would you want your actions to be probe for what was the real reason why you acted? Even if a president were... It clearly shows in my mind that the framers could not have intended this psychoanalytic approach to presidential motives to determine the distinction between what is impeachable and what is not. Alan Dershowitz: (45:50) Here I come to a relevant and contemporaneous issue. Even if a president, any president, were to demand a quid pro quo as a condition to sending aid to a foreign country, obviously- Alan Dershowitz: (46:03) As a condition to sending aid to a foreign country, obviously a highly disputed matter in this case that would not by itself constitute an abuse of power. Consider the following hypothetical case that is in our news today as the Israeli prime minister comes to the United States for meetings. Let's assume a Democratic president tells Israel that foreign aid authorized by Congress will not be sent or an Oval Office meeting will not be scheduled unless the Israelis stop building settlements. Quid pro quo. I might disapprove of such a quid pro quo demand on policy grounds, but it would not constitute an abuse of power. Quid pro quo alone is not a basis for abusive power. It's part of the way foreign policy has been operated by presidents since the beginning of time. 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, abusive power, as a constitutionally permissible criteria for the removal of a president. Alan Dershowitz: (47:21) Now it follows, it follows from this that if a president, any president were to have done with the Times reported about the context of the Bolton manuscript, that would not constitute an impeachable offense. Let me repeat, nothing in the Bolton revelations, even if true would rise to the level of an abusive power or an impeachable offense. That is clear from the 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 so politically loaded and promiscuously deployed a term as abuse of power to be weaponized as a tool of impeachment. It is precisely the kind of vague, open-ended and subjective term that the framers feared and rejected. Consider the term maladministration. I want to get back to that term because it's the term that was explicitly rejected by the framers. As you recall, it was raised and then Madison objected to it. It was then withdrawn and it is not part of the criteria. We all agree that maladministration is not a ground for impeachment. If the House were to impeach on maladministration, it would be placing itself above the law. There's no doubt about that because the framers explicitly rejected maladministration. Now what does maladministration? It's comparable in many ways to the abuse of power. Maladministration has been defined to include abuse, corruption, misrule dishonesty, misuse of office and misbehavior. Professor Buoy in his article in today's New York Times equates abuse of power with quote, misconduct in office, misconduct in office. Thus supporting the view that when the framers rejected maladministration they also rejected abuse of power as a criteria for impeachment. Alan Dershowitz: (49:36) Blackstone denominated maladministration as a high misdemeanor that is punishable by the method of parliamentary impeachment wherein such penalty short of death or inflicted, he included among those, imprisonment. In other words, you could be in prison for maladministration. Despite this British history, Madison insisted that it'd be rejected as a constitutional criteria for impeachment because, and I quote again, so vague a term will be equivalent to tenure during the pleasure of the Senate. And it was explicitly rejected and withdrawn by its sponsor. This important episode in our constitutional history supports the conclusion that the framers did not accept whole hog, the British approach to impeachment as some have mistakenly argued. Specifically, they rejected vague and open-ended criteria. Even those carrying punishment of imprisonment in Britain because they did not want to turn our new Republic into a parliamentary style democracy in which the chief executive can be removed from office simply by a vote of non-confidence. That's what they didn't want. Alan Dershowitz: (50:42) Sure, nobody was above the law, but they created a law. They created a law by which Congress could impeach and they did not want to expand that law to include all the criteria that permitted impeachment in great Britain. The framers would never have included and did not include abuse of power as an enumerated and defined criteria for impeachment. By expressly rejecting maladministration, they implicitly rejected abuse. Nor would the framers have included obstruction of Congress as among the enumerated and defined criteria. It too vague, indefinable, especially in a constitutional system in which according to Hamilton in Federalist 78, the legislative body is not themselves, the constitutional judge of their own powers. And the construction they put on them is not conclusive upon other departments. Instead, he said the courts were designed as an intermediate body between the people as declared in the constitution and the legislature in order to keep the ladder within the limits assigned to their authority. Alan Dershowitz: (51:43) Under our system of separation of powers and checks and balances, it cannot be an obstruction of justice and some other lawyers have made this argument today more thoroughly. For a president to demand judicial review of legislative subpoenas before they are complied with the legislature is not the constitutional judge of its own powers including the power to issue subpoenas. The courts were designated to resolve disputes between the executive and legislative branches and it cannot be an obstruction of Congress to invoke the constitutional power of the courts to do so. Alan Dershowitz: (52:18) By their very nature, words like abuse of power and obstruction of Congress are standardless. It's impossible to put standards into words like that. Both are subjective matters of degree and amenable to varying partisan interpretations. It's impossible to know in advance whether a given action will subsequently be deemed to be on one side or the other of the line. Indeed, the same action with the same state of mind can be deemed abusive or obstructive when done by one person but not when done by another. That is the essence of what the rule of law is not. When you have a criteria that could be applied to one person one way and another person in another way and they both fit within the terms abuse of power. Alan Dershowitz: (53:11) A few examples will illustrate the dangers of standardless impeachment criteria. My friend and colleague, Professor Noah Feldman, has argued that a tweet containing what he believed was false information could quote, get the current president impeached if it is part of a broader course of conduct. A tweet. Professor Allan Lichtman has argued that the President could be impeached based on his climate change policy, which he regards as a crime against humanity. I have to tell you, I disagree with our President's climate change policy as I do with many of his other policies, but that's not a criteria for impeachment. That's a criteria for deciding who you're going to vote for. If you don't like the President's policies on climate change, vote for the other candidate. Find a candidate who has better policies on climate change. If you don't like the President's tweets, find somebody who doesn't tweet. That will be easy. Alan Dershowitz: (54:09) But don't allow your subjective judgments to determine what is and is not an impeachable offense. Professor Tribe, as I mentioned, argued under the criteria of abusive power President Ronald Reagan should have been impeached. Would any American today except the legal system in which prosecutors could charge a citizen with abusive conduct? Can you imagine a crime, abusive conduct? Fortunately, we have constitutional protections against a statute that, "either forbids or requires the doing of enact and terms so vague that men and women of common intelligence must necessarily guess at its meaning and differ as to its application." Very difficult to imagine criteria that fit this description of what the Supreme Court has said violates the first essentials of due process more closely than abuse of power and obstruction of Congress. Another constitutional rule of construction is that when words can be interpreted in an unconstitutionally vague manner or in a constitutionally precise manner, the latter must be chosen. Alan Dershowitz: (55:17) You are entitled to use that rule of interpretation as well in deciding whether or not obstruction of Congress or abuse of power can be defined as fitting within the criteria of high crimes and misdemeanors. For the Senate to remove a duly elected president on vague non-constitutional grounds such as abuse of power or obstruction of Congress would create a dangerous precedent and be construed in the words of Senator James N. Grimes into approval of impeachment as part of future political machinery. This is a realistic threat to all future presidents who serve with opposing legislative majorities that could easily concoct vague charges of abuse or obstruction. The fact that a long list of presidents that were accused of abuse power were not impeached demonstrates how selectively this term has and can be used in the context of impeachment. I'm sorry, House managers, you just picked the wrong criteria. You pick the most dangerous possible criteria to serve as a precedent for how we supervise and oversee future presidents. The idea of abuse of power and obstruction of Congress are so far from what the framers had in mind that they so clearly violate the Constitution and would place Congress above the law. Now, nor are these vague, open-ended and unconstitutional articles of impeachment that were charged here, they're not saved by the inclusion in these articles of somewhat more specific but still non-criminal type conduct. The specifications are themselves vague, open-ended, and do not charge impeachable offenses. They include such accusations as compromising national security, abusing the power of the presidency, violating his oath of office. In any event, it's the actual articles that charge abuse of power and obstruction of justice, neither of which are in the Constitution, it's the actual articles on which you must all vote, not on the more specific list of means included in the text of the articles. An analogy to a criminal indictment might be helpful. Alan Dershowitz: (57:33) If a defendant were accused of dishonesty, committing the crime of dishonesty, it wouldn't matter that the indictment listed as, well, the means toward dishonesty, a variety of far more specific potential offenses. Dishonesty is simply not a crime. It's too broad a concept. It's not in the statute. It's not a crime. The indictment would be dismissed because dishonesty is a sin and not a crime even if the indictment included a long list of more specific acts of dishonesty. Nor can impeachment be based on a bunching together of non unimpeachable sins, none of which standing alone meet the constitutional criteria. Only if at least one constitutionally authorized offense is proved can the Senate then consider other conduct in deciding the discretionary issue of whether removal is warranted? In other words, your jurisdiction is based on commission of an impeachable offense. Once that jurisdictional element is satisfied, you have broad discretion to determine whether removal is warranted and you consider a wide array of conduct, criminal and non-criminal. But you have no jurisdiction to remove unless there is at least one impeachable offense within the meaning of high crimes and misdemeanors. Alan Dershowitz: (58:57) In the three days of argument, the House managers tossed around words, even vaguer and more open-ended than abuse and obstruction to justify their case for removal. These included trust, truth, honesty, and finally, right. These aspirational words of virtue are really important, but they demonstrate the failure of the managers to distinguish the alleged political sins from constitutionally impeachable offenses. We all want our presidents and other public officials to live up to the highest standards set by Washington and Lincoln though both of them were accused of abuse of power by their political opponents. The framers could have demanded that all presidents must meet Congressman Schiff's, standards of being honest, trustworthy, virtuous and right in order to complete their terms but they didn't because they understand human fallibility. As Madison put it, "if men were angels, no government would be necessary." And then speaking of presidents and other public officials, "if angels were to govern men, neither internal nor external controls and government would be necessary." The framers understood that if they set the criteria for impeachment too low, few presidents would serve their terms instead, their tenure would be at the pleasure of the legislature as it was and still is in Britain. Alan Dershowitz: (01:00:28) So they set the standards and the criteria high requiring not sinful behavior, not dishonesty, distrust or dishonor, but treason, bribery or other high crimes and misdemeanors. I end this presentation today with a nonpartisan plea for fair consideration of my arguments and those made by counsel and managers on both sides. I willingly acknowledge that the academic consensus is that criminal conduct is not required for impeachment and that abuse of power and obstruction of Congress are sufficient. I have read and respectfully considered the academic work of my many colleagues who disagree with my view and the few who accept it. I do my own research and I do my own thinking and I have never bowed to the majority on intellectual or scholarly matters. What concerns me is that during this impeachment proceeding, there have been few attempts to respond to my arguments and other people's arguments opposed to the impeachment of this president. Alan Dershowitz: (01:01:34) Instead of answering my arguments and those of Justice Curtis and Professor Bowie and others on their merits and possible demerits, they have simply been rejected with negative epithets. I urge the senators to ignore these epithets and to consider the arguments and counter arguments on their merits, especially those directed against the unconstitutional vagueness of abuse of power and obstruction of Congress. I now offer a criteria for evaluating conflicting arguments. The criteria that I offer, I have long called the shoe on the other foot test. It is a colloquial variation of the test proposed by the great legal and political thinker and my former colleague, John Rawls. It is simple in its statement but difficult in its application. As a thought experiment, I respectfully urge each of you to imagine that the person being impeached or of the opposite party of the current president, but that in every other respect, the facts were the same. Alan Dershowitz: (01:02:41) I have applied this test to the constitutional arguments I am offering today. I would be making the same constitutional arguments in opposition to the impeachment on these two grounds, regardless of whether I voted for or against the president, and regardless of whether I agreed or disagreed with his or her policies. Those of you who know me know that that is the absolute truth. I am nonpartisan in my application of the Constitution. Can the same be said of all of my colleagues who support this impeachment, especially those who oppose the impeachment of President Bill Clinton. I first proposed the shoe test 20 years ago when evaluating the Supreme Court's decision in Bush versus Gore asking the justices to consider how they would have voted, had it been candidate Bush rather than Gore, who was several hundred votes behind and seeking a recount. In other words, I was on the other side of that issue. Alan Dershowitz: (01:03:36) I thought the Supreme Court in that case favored the Republicans over the Democrats and I asked them to apply the shoe on the other foot test. I never respectfully asked this distinguished chamber to consider that eristic test in evaluating the arguments you have heard in this historic chamber. It is an important test because how you vote on this case will serve as a precedent for how other senators of different parties, different backgrounds and different perspectives vote in future cases. Allowing a duly elected president to be removed on the basis of the standardless, subjective, ever changing criteria, abuse of power and obstruction of Congress, risks being construed in the words of Senator Grimes, a Republican Senator from Iowa who voted against impeaching President Andrew Johnson ,into approval of impeachments as part of future political machinery. As I begin, I will close. I am here today because I love my country. Alan Dershowitz: (01:04:39) I love the country that welcomed my grandparents and made them into great patriots and supporters of the freest and most wonderful country in the history of the world. I love our Constitution, the greatest and most enduring document in the history of humankind. I respectfully urge you not to let your feelings about one man, strong as they may be, to establish a precedent that would undo the work of our founders, injure the constitutional future of our children and cause irreparable damage to the delicate balance of our system of separation of powers and checks and balances. As Justice Curtis said during the trial of Andrew Johnson, "a greater principle is at stake than the fate of any particular president." The fate of future presidents of different parties and policies is also at stake as is the fate of our constitutional system. The passions and fears of the moment must not blind us to our past and to our future. Alan Dershowitz: (01:05:47) Hamilton predicted that impeachment would agitate the passions of the whole community and enlist all of their animosities, partialities, influence and interest on one or the other. The Senate, the Senate was established as a wise and mature check on the passions of the moment with quote, a deep responsibility to future times. I respectfully urge the distinguished members of this great body to think beyond the emotions of the day and to vote against impeaching on the unconstitutional articles now before you. To remove a duly elected president and to prevent the voters from deciding his fate on the basis of these articles would neither to do justice to this president nor to our enduring constitution. There is no conflict here. Impeaching would deny both justice to an individual and justice to our Constitution. I thank you for your close attention. It has been a great honor for me to address this distinguished matter ... this body on this important matter. Thank you so much for your attention.

Eric Herschmann Defense Argument

Eric Herschmann: (00:01) Mr. Chief Justice, members of the Senate, I am Eric Herschmann. I have the honor and privilege of representing the President of the United States in these proceedings. I have been carefully listening to and reviewing the House managers' case. That case pretty much boils down to one straightforward contention: that the President abused his power to promote his own personal interests and not our country's interests. The House managers say that the President did not take the steps that they allege for the benefit of our country, but only for his own personal benefit. But if that's wrong, if what the President had wanted would have benefited our country, then the managers have not met their burden, and these articles of impeachment must be rejected. As we will see, the House managers do not come close to meeting their burden. Last week, manager Schiff said that the investigations President Trump supposedly asked President Zelensky about on the July 25th call could not have been in the country's interest because he said they were quote-unquote, "Discredited entirely." The House managers say that the investigations had been debunked. They were sham investigations. So now we have the question, were they really? The House managers, in the over 21 hours of their repetitive presentation, never found the time to support those conclusory statements. Was it in fact true that any investigation had been debunked? The House managers do not identify for you who supposedly conducted any investigations, who supposedly did the debunking, who discredited it, where and when were any such investigations conducted, when were the results published, and much more is left unanswered. Eric Herschmann: (02:05) Attorney General Bondi went through for you some of what we know about Burisma and its millions of dollars in payments to Vice President Biden's son and his son's business partner. There is no question that any rational person would like to understand what happened. I'm going to go through some additional evidence which was easily available to the House managers, but which they never sought or considered. Based on what Attorney General Bondi told you and this additional evidence, you can judge for yourself whether the conduct was suspect. Eric Herschmann: (02:43) As you know, one of the issues concerned Hunter Biden's involvement with the Ukrainian natural gas company, which paid him millions of dollars while his father was vice president and was in charge of the Ukrainian portfolio during the prior administration. I'll get to those supposedly-discredited allegations identified by the House managers in a few minutes. Eric Herschmann: (03:07) The other issue was what manager Schiff called quote, "The baseless conspiracy theory that Ukraine, not Russia, interfered in the 2016 election," close quote. Manager Schiff said that President Trump wanted to quote, "Erase from history his previous political misconduct," close quote. But there was no previous political misconduct. If any theory has actually been discredited, it's the theory that President Trump colluded with Russia in 2016. It was that theory that was discredited and discredited entirely by Mr. Mueller's massive investigation. The same investigation the Democrats demanded since President Trump took office. The same investigation they knew, they were absolutely sure would expose such collusion. The same investigation, which after 22 months of exhaustive work at a cost to the taxpayers of $32 million, found no conspiracy and no evidence of Russian collusion with the Trump campaign. And as we will see, the Democrats are as wrong now about the articles of impeachment as they were in 2016 about the Russian collusion. Eric Herschmann: (04:26) As to the other incident President Trump mentioned, the one concerning the Ukrainian gas company Burisma, well, I actually think this is something that is undisputed. That Ukraine had a particularly bad corruption problem. It was so corrupt that dealing with corruption and solving the corruption was a priority for our US foreign policy. Here is how one knowledgeable observer of Ukraine put it in 2015. Quote, "It's not enough to set up a new Anti-Corruption Bureau and establish a special prosecutor fighting corruption. The Office of the General Prosecutor desperately needs reform. The judiciary should be overhauled. The energy sector needs to be competitive, ruled by market principles, not sweetheart deals. It's not enough to push through laws to increase transparency with regard to official sources of income. Senior elected officials have to remove all conflicts between their business interests and their government responsibilities." Now, as Attorney General Bondi said, here are the facts we do know about Hunter Biden's involvement with Ukraine. Burisma, a Ukrainian natural gas company, paid Hunter Biden millions of dollars to serve on its board of directors. He did not have any relevant expertise or experience. He had no expertise or experience in the natural gas industry. He had no known expertise in corporate governance nor any expertise in Ukrainian law. He doesn't, so far as we know, speak Ukrainian. Eric Herschmann: (06:04) So why? Why did Burisma want Hunter Biden on its board? Why did they want to pay him millions of dollars? Well, he did have one qualification. He was a son of the Vice President of the United States. He was the son of the man in charge of the Ukrainian portfolio for the prior administration. And we are to believe there is nothing to see here. That for anyone to investigate or inquire about this would be a sham. Nothing to see here. But tellingly, Hunter Biden's attorney, on October 13th, 2019, issued a statement on his behalf. He indicated that in April 2014, Hunter was asked to join the board of Burisma, then states Hunter stepped off Burisma board in April 2019. Eric Herschmann: (06:55) Now listen to the commitment that Hunter Biden is supposedly willing to make to all of us. "Hunter makes the following commitment: Under a Biden Administration, Hunter will readily comply with any and all guidelines or standards a President Biden may issue to address purported conflicts of interest, or the appearance of such conflicts, including any restrictions related to overseas business interests." That statement almost tells us all we need to know. That's the rule that should've been in place in 2014 because there already was an Obama-Biden administration. What changed? What changed? Remember a couple of minutes ago when I quoted an expert on Ukraine? The one who said that Ukraine must clean up its energy sector. The one who said that Ukraine's senior elected officials have to remove all conflicts between their business interests and their government responsibilities. You know who said that about Ukraine? Vice President Joe Biden in December of 2015. Eric Herschmann: (08:11) Vice President Biden went to Ukraine approximately 12 to 13 times. He spoke with legislators, business people, officials. He was purportedly fighting corruption in Ukraine. He was urging Ukraine to investigate and uproot corruption. One thing he apparently did not do, however, was to tell his son not to trade on his family connections. He did not tell his son to especially stay away from the energy sector in the very corruption-ridden country Vice President Biden was responsible for. And manager Schiff says, "Move along, there's nothing to see here"? What are the House managers afraid of finding out? Eric Herschmann: (08:55) In an interview with ABC in October of last year, Hunter Biden said he was on the board of Burisma to focus on principles of corporate governance and transparency. Hunter Biden: (09:06) Bottom line is that I know that I was completely qualified to be on the board, to head up the corporate governance and transparency committee on the board. And that's all that I focused on. Eric Herschmann: (09:21) But when asked how much money Burisma was paying him, he responded he doesn't want to open his kimono and disclose how much. He does refer to public reports about how much he was being paid, but as we now know, he was being paid far more than what was in the public record. Speaker 1: (09:42) You were paid $50,000 a month for your position? Hunter Biden: (09:45) Look, I'm a private citizen. One thing that I don't have to do is sit here and open my kimono as it relates to how much money I make or make or did or didn't. But it's all been reported. Eric Herschmann: (09:56) So what was the real reason that Hunter Biden, the Vice President's son, was being paid by Burisma? Was it based on his knowledge and understanding of the natural gas industry in Ukraine? Was he going to discuss how our government regulates the energy industry here? Was he going to discuss how we set gas rates? Was he going to discuss pipeline development, construction, or environmental impact statements? Did he know anything about the natural gas industry at all? Of course not. Eric Herschmann: (10:26) So what was the reason? I think we do not need to look any further than the explanation that Hunter Biden gave during the ABC interview. When he was asked why, here's what he had to say. Speaker 1: (10:40) If your last name wasn't Biden, do you think you would've been asked to be on the board of Burisma? Hunter Biden: (10:45) I don't know. I don't know. Probably not. I don't think that there's a lot of things that would have happened in my life that if my last name wasn't Biden. Eric Herschmann: (10:55) And as if to confirm how suspect this conduct was, that it should be a concern to our country, Hunter Biden and his lawyer could not even keep their story straight. Compare the press release that was issued by Burisma on May 12th, 2014 with Hunter Biden's lawyer's statement on October 13th of 2019. The May 2014 press release begins, "R.," for Robert, "Hunter Biden will be in charge of holdings' legal unit." He was going to be in charge of a Ukrainian gas company owned by an oligarch's legal unit. However, in his lawyer's statement in October of 2019, after his involvement with Burisma came under renewed public scrutiny, he now claims, "At no time was Hunter in charge of the company's legal affairs." Which is it? What was Hunter Biden doing at Burisma in exchange for millions of dollars? Who knows? What were they looking to hide? So much for his corporate governance and transparency. Eric Herschmann: (12:06) But let's take a step back and realize what actually transpired, because the House managers would have us believe this had nothing at all to do with our government, nothing at all to do with our country's interests, nothing at all to do with our vice president, nothing at all to do with the State Department. It simply was private citizen Hunter Biden doing his own private business. It was purely coincidental that it was in his father's portfolio in Ukraine in the exact sector, the energy sector, that his father said was corrupt. Eric Herschmann: (12:41) But we have a document here, again, something that House managers did not show you or even put before the House before voting these baseless articles of impeachment. If you look at this email, it's an email from Chris Heinz. And as Attorney Bondi already told you, he is the stepson of the then-Secretary of State John Kerry and who was the other business partner with Hunter Biden and Devon Archer. Our Secretary of State's stepson and our Vice President's son are in business together. Eric Herschmann: (13:15) It was sent on May 30th, 2014 to the official government email addresses of two senior people at the State Department. And who are these two people? The Chief of Staff to the Secretary of State and the Special Advisor to the Secretary of State. The subject line in the email is not "corporate transparency." It's not "corporate governance." It's not "here's a heads up." The subject line is "Ukraine." Chris Heinz certainly understood the sensitivity to our US foreign policy. Eric Herschmann: (13:50) And what does the Secretary of State's stepson say about Hunter Biden and Devon Archer? He says this: "Apparently Devon and Hunter both joined the board of Burisma and a press release went out today. I can't speak to why they decided to, but there was not investment by our firm in the company." What is the most telling thing about this? It is clear that the Chief of Staff and the Special Assistant to the Secretary already knew who Devon was because Mr. Heinz did not include his last name. It's just "Devon." And they obviously knew who Hunter was because, again, it's Hunter Biden. Eric Herschmann: (14:33) This is Chris Heinz saying, "I can't speak to why they decided to join the board of Burisma." He's their business partner. Not that there are good corporate reasons, and they're going there for corporate governance. Not that they're there to enhance corporate transparency. Not that they are there to further US policy. Not that they are there to help fight corruption in Ukraine. Not that they are there to ensure that boards of directors' compensation and benefits are publicly disclosed. Nothing like that. He cannot say those things because he knows Devon and Hunter well, and he knows they have no particular qualifications whatsoever to do those things, especially for a Ukrainian gas company. Eric Herschmann: (15:19) Instead, Mr. Heinz is plainly going on the record to report what Hunter and Devon were doing through official channels and to take pains to disassociate himself from what they were doing. And what did the State Department do with this information that the Secretary of State's stepson thought they needed to know? Apparently nothing. They did not tell Mr. Heinz to stay away. They did not tell Mr. Heinz there was no problem. Nothing. But all this the House managers want us to believe does not even merit any inquiry. Anyone asking for one, anyone discussing one is now corrupt. Eric Herschmann: (16:03) Does it matter in an inquiry why a corrupt company in a corrupt country would be paying our vice president's son a million dollars per year plus, it appears, some additional expenses, and paying his business partner an additional million dollars per year? Secretary of State Kerry's stepson thought it was important enough to report. Why aren't the House managers concerned? And I ask you, why would it not merit an investigation? Eric Herschmann: (16:34) And you know something else about Vice President Biden? Well, back in January of 2018, as you heard, former Vice President Biden bragged that he had pressured the Ukrainians, threatened them, indeed, coerced them, into firing the state prosecutor who reportedly was investigating the very company that paid millions of dollars to his son. He bragged that he gave them six hours to fire the prosecutor or he would cut off $1 billion in US loan guarantees. Joe Biden: (17:07) Said, "No." I said, "We're not going to give you the billion dollars." They said, "You have no authority. You're not the president. The president said" ... I said, "Call him." I said, "I'm telling you you're not getting the billion dollars." I said, "You're not getting the billion. I'm going to be leaving here." And I think it was what, six hours? I looked at ... I said, "I'm leaving at six hours. If the prosecutor's not fired, you're not getting the money." Well, son of a bitch got fired, and they put in place someone who was solid at the time. Eric Herschmann: (17:39) Are we really to believe that it was the policy of our government to withhold a billion dollars? A billion dollars of needed guarantees in aid to Ukraine unless they fired a prosecutor on the spot? Was that really our policy? We have all heard continuously from the managers, and many agree about the risks to the Ukrainians posed by the Russians. We have heard the managers say ... Eric Herschmann: (18:03) To the Ukrainians posed by the Russians. We have heard the managers say that a slight delay in providing funding to Ukraine endangers our national security and jeopardizes our interests, and therefore the President must immediately be removed from office. Yet, they also argue that it was the official policy of our country to withhold one billion unless one individual was fired within a certain matter of hours. Was that really or could it ever be our United States policy? Eric Herschmann: (18:37) According to the House Managers theory, we were willing to jeopardize Ukrainians unless somebody who happened to be investigating Burisma was promptly fired. Were we going to jeopardize the Ukrainian economy because a prosecutor was not fired in the six hour time period Vice President Biden demanded? Does anyone really believe that was or ever could be our United States foreign policy? Just in case the managers or others try to argue, "No, no, no. He wasn't serious about that. He was just bluffing." What kind of message would that send to the Russians about our support for the Ukrainians, that we would bluff and bluff with the Ukrainian economy? Eric Herschmann: (19:25) From 2014 to 2017, Vice President Biden claimed to be on a crusade against corruption in Ukraine. He repeatedly spoke about how the cancer of corruption was endemic in Ukraine and hobbled Ukraine, how Ukraine faced no more consequential mission than confronting corruption, and he encouraged Ukraine to close the space for corrupt middlemen who rip off the Ukrainian people. The Vice President railed against monopolistic behavior where a select few profit from so many sweetheart deals that has characterized that country for so long. In known as the last official visit to Ukraine, four days before he left office, he spoke out against corruption and oligarchy that eats away like a cancer, and against corruption which continues to eat away at Ukraine's democracy within. Eric Herschmann: (20:22) Why was Vice President Biden doing this? Was he so concerned about corruption in Ukraine, even singling out that country's energy sector, because corruption in Ukraine is a critical policy concern for our country? But during this whole time, what else was happening? His son and his son's business partner were raking in over a million dollars a year for what was regarded as one of the most corrupt Ukrainian companies in the energy sector owned and controlled by one of the most corrupt oligarchs. Were Vice President Biden's words and advice to Ukraine just hollow? According to the House Managers, the answer apparently is yes. They were empty words, at least when it came to anyone questioning his sons own sweetheart deal, his own sons deal with Ukraine's corruption and oligarchy. Eric Herschmann: (21:18) Again to raise Manager Schiff's own question, what kind of message did this send to future U.S. Government officials? Your family can accept money from foreign corrupt companies, no problem? You can pay family members of our highest government officials and no one is allowed to even ask question. What was going on? We have to just accept now the House manager's conclusory statements like sham, discredited, even though no one has ever investigated. Why? Can you imagine what House Manager Schiff and his fellow democratic representatives would say if it were President Trump's children on an oligarch's payroll? When it finally appeared that a true Ukrainian corruption fighter had assumed the country's presidency, President Trump was not supposed to, he was not permitted to follow up on Vice President Biden's own words about fighting corruption, and tried to make those words something other than empty. According to the House Managers, Ukrainian corruption is now only a private interest. It no longer is a serious, important concern for our country. Eric Herschmann: (22:35) Now, I want to take a moment to cover a few additional points about the July 25 telephone call in which the House Managers believe that the President in the United States, in their words, was shaking down and pressuring the President of Ukraine to do his personal bidding. First of all, this was not the first telephone call that the President of the United States had with other foreign leaders. So, think about this for a moment. The call was routed through the situation room. It was a scheduled call. There were other people on the call. There were other people taking notes, and obviously the President was aware of that fact. The House Managers talk about the fact that the President did not follow the approved talking points, as if the President, any President, is obligated to follow approved talking points. The last time I checked, and I think this is clear to the American people, President Trump knows how to speak his mind. But remember the fake transcript that Manager Schiff read when he was before the Intelligence Committee, his mob gangster-like fake rendition of the call? Eric Herschmann: (23:49) Well, I prosecuted organized crime for years. The type of description of what goes on, what House Manager Schiff tried to create for the American people, is completely detached from reality. It is as if we were supposed to believe that mobsters would invite people they do not know into an organized crime meeting to sit around and take notes to establish the corrupt intent. Manager Schiff, our jobs as prosecutors, and I know you were one, would have been a lot easier if that were how it worked. Think about what he is saying. Think about the Manager's position, that our President decided with corrupt intent to shake down in their words another foreign leader, and he decided to do it in front of everyone in a documented conversation, in the presence of people he did not even know, just so he can get this personal benefit that was not in our country's interest. The logic is flawed. It is completely illogical because that is not what happened. That is why Manager Schiff ran away from the actual transcript. That is why he created his own fake conversation. Eric Herschmann: (25:02) But I would like to just address another point from the transcript of the July 25 phone call. The House Managers allege that an Oval Office meeting with the President was critical to the newly elected Ukrainian President, because it would signal to Russia, which had invaded Ukraine in 2014, and still occupied Ukrainian territory that Ukraine could count on American support. They actually argue that it was a quid pro quo, that the President withheld this critical Oval Office meeting that would deter the Russians and save the Ukrainians because he wanted something personal. Now, if that was in fact critical to President Zelensky for the safety of his own citizens, he would have immediately jumped at the opportunity to come to the Oval Office, especially when President Trump offered him that invitation during the July 25 call. Eric Herschmann: (26:03) But let's see what President's Zelensky actually says when he's invited to Washington on that call. He does not say, "Oh, this is what I would like to do. It's critical for my people. We will arrange it immediately." His response is, "I would be very happy to come and would be happy to meet you personally and get to know you better. On the other hand, I believe that on September 1, we will be in Poland, and we can meet in Poland, hopefully." In an Oval Office meeting, if an Oval Office meeting was critical to President Zelensky, that was a time to say so, not suggest another venue. Eric Herschmann: (26:42) When we look at the evidence that is before us, it is clear that the only people who talked about having an Oval Office meeting were lower level government employees who thought it was a good idea, but the principals involved, those who actually make the decisions, President Zelensky and President Trump, to them, it was not critical, it was not material, and it was definitely never a quid pro quo. What was important to President Zelensky was not an Oval Office meeting, but the lethal weapons that President Trump supply to Ukraine, and the sanctions that President Trump enforced against the Russians. That is what the transcript of the July 25 call demonstrates. Eric Herschmann: (27:27) Let us now consider what Presidents Zelensky knew about the support that President Trump had provided to Ukraine compared to the support, or more accurately lack thereof, that the prior administration had provided to Ukraine. In February 2004, Russia began its military campaign against Ukraine. Against the advice and urgings of Congress and many in his own administration, president Obama refused then and throughout the remainder of his presidency to provide lethal assistance to Ukraine. In the House, Manager Schiff joined many of his colleagues in a letter writing campaign to President Obama, urging that, "The U.S. must supply Ukraine with the means to defend itself" against Russian aggression, and urging President Obama to quickly approve additional efforts to support Ukraine's efforts to defend its sovereign territory, including the transfer of lethal defense weapons to the Ukraine military. Eric Herschmann: (28:35) On March 23, the House of Representatives overwhelmingly passed a resolution urging President Obama to immediately exercise the authority by Congress to provide Ukraine with lethal defensive weapon system. The very next day, this Senate passed a unanimous resolution urging the President to prioritize and expedite the provision of defensive lethal and non-lethal military assistance to Ukraine, consistent with United States national interest in policies. As one Senator here stated in March 2015, providing non-lethal equipment, like night vision goggles, is all well and good, but giving the Ukrainians the ability to see the Russians coming, but not the ability to stop them, is not the answer. Yet, President Obama refused. He refused even the face of support by senior career professionals recommending he provide lethal weapons to the Ukrainians. By contrast, what did President's Zelensky and the Russians know? They knew that President Trump did, did provide that support. That clearly was the most material thing to him, much more, much more important than a meeting in the Oval Office. The House Managers also make much of their contention that President Trump supposedly wanted President Zelensky only to announce an investigation, not conduct anything, but that contention makes no sense. President Trump's call with Presidents Zelensky was in July of 2019, almost a year and a half before our next election. Would only a bare announcement so far in advance, with no follow-up, really have had any effect on the election as the managers claim? Would anyone have remembered the announcement a year or more later? Ironically, it is the House Managers who have put Burisma and its connection to the Bidens front and center in this proceeding, and now the voters will know about it and probably will remember it. Be careful what you wish for. Eric Herschmann: (30:51) Manager Schiff, well, there he goes again. He's putting words in the President's mouth that were never there. Again, look at the transcript of the July call. President Trump never asked about any announcement of any type of investigation, and President Zelensky tells President Trump, "I guarantee as the President of Ukraine, that all the investigations will be done openly and candidly. That I can assure you. What happened next? The House Managers say President Zelensky did not want to get mixed up in U.S. politics, but it's precisely the Democrats who politicize the issue. Last August, they began circling the wagons trying to protect Vice President Biden, and they're still doing it in these proceedings. They contend that any investigation into the millions of dollars of payments by a corrupt Ukrainian company, owned by a corrupt Ukrainian oligarch, to the son of the second highest office holder in our land, who was supposed to be in charge of fighting corruption Ukraine, they're calling that type of inquiry a sham, debunked. But there has never been an investigation. So, how could it be a sham? Simply because the House Managers say so? Eric Herschmann: (32:12) Which brings me to yet another one of the House Managers baseless contentions, that President Trump raised the matter with President Zelensky because Vice President Biden had just announced his candidacy for President. But of course it was far from a secret that Vice President Biden was planning to run. What had in fact changed? First, President's Zelensky had been elected in April on an anti-corruption platform. In July, running on the same platform, his party took control of the Ukrainian parliament. That made it the opportune time to raise the issue, because finally there was a receptive government in Ukraine, committing to fighting precisely the kind of highly questionable conduct displayed by Burisma in its payments to Hunter Biden, and his partner, just as Joe Biden had raised years before. Eric Herschmann: (33:08) Two other things. In late June, ABC News ran a story entitled Hunter Biden's Foreign Deals: Did Joe Biden's Son Profit Off of His Father's Position as Vice President? Then just a couple of weeks before President Trump's telephone call with President Zelensky, the New Yorker magazine, not exactly a supporter of President Trump, ran an expose. Will Hunter Biden Jeopardize His Father's Campaign? Going through some of the facts that we do know about Hunter Biden's involvement with Burisma, and his involvement with a Chinese company. The New York reporter, again, this was in July, just a couple of weeks before the phone call, said that some of Vice President Biden's advisors were worried that Hunter would expose the Vice President to criticism. A former senior White House aide told the New Yorker reporter that Hunter's behavior invited questions about whether he was, "Leveraging access for his benefit." The reporter wrote that, "When I asked members of Biden's staff whether they did raise their concern with the Vice President, several of them said they had been too intimidated to do so." Eric Herschmann: (34:28) Everyone who works for him has been screamed at, former advisor told the reporter, I don't know whether anyone has been intimidated by Vice President Biden, or has been screamed at by him about Burisma or his son's involvement. Do we want the type of government where questions about facially suspect conduct are suppressed or dismissed as illegitimate because someone is intimidating or screams at, or is just too important? No, that is precisely when an investigation is most important. Eric Herschmann: (35:05) Now, last Thursday night, Manager Jeffries provided us with the Democrats' standard for abuse of power. He said, "Abusive power occurs when the President exercises his official power to obtain a corrupt personal benefit while ignoring or injuring the national interest." Mr. Jeffries and the House Managers contend that under this standard, President Trump has committed an impeachable offense and must be immediately removed from office. But if Manager Jeffries standard applies, then where were these same Democrats' calls for impeachment when uncontroverted, smoking gun evidence emerged that President Obama had violated their standard? The American people understand this basic notion as equal justice under the law. It is as American as apple pie. Yet, the House Managers want to apply their own version of selec- Eric Herschmann: (36:03) Yet the house managers want to apply their own version of selective justice here, which applies only to their political opponents. They want one system of justice for Democrats and another system of justice for everyone else. But you do not need to take my word for it, let's walk through the facts. On March 26, 2012 on the eve of the 2012 Nuclear Security Summit in Seoul, South Korea, President Obama met with Russian President Dimitri Medvedev to discuss one of the pressing issues in the United States' national security interest, military defense. How important was the issue of milla, millis, I'm sorry, missile defense, to the strategic relationship between the U.S. and Russia? As President Obama's Defense Secretary Robert Gates said in June, 2010, upgraded missile interceptors and development, "Would give us the ability to protect our troops, our bases, our facilities, and our allies in Europe." Gates continued, "There is nothing of the minds on missile defense," sorry, "There is no meeting of the minds on missile defense. The Russians hate it, they've hated it since the late 1960's, they will always hate it, mostly because we'll build it and they won't." Eric Herschmann: (37:23) During the Nuclear Security Summit, President Obama had a private exchange with Russian President Medvedev that was picked up on a hot microphone. Barack Obama: (37:34) [inaudible 00:37:34] Yeah. And after my election I have more flexibility. Yeah. Speaker 2: (37:35) Yeah. I understand. I will transmit this information to Vladimir and I stand with you. Eric Herschmann: (37:47) President Obama said on all these issues, but particularly missile defense, "This can be solved, but it's important for him to give me space." President Medvedev responded, " Yeah, I understand. I understand your message about space, space for you. President Obama, "This is my last election. After my election, I will have more flexibility." President Medvedev responds, "I understand. I will transmit this information Vladimir." As we all know, it's Vladimir Putin. As you just saw on 2012 President Obama asked the Russians for space until after the upcoming 2012 election, after which he would have more flexibility. Now let me apply Mr. Jeffries and the house manager's three part test for abuse of power. Eric Herschmann: (38:42) One, the president exercises his official power. President Obama's actions clearly meet the test for exercising official power. Because in his role as Head of State, during a nuclear security summit after asking President Medvedev for space, he promised him that, "Missile defense can be solved." What else could that mean but solved in a way favorable to the Russians who were dead set against the expansion of a U.S. missile defense system in Europe? Two, to obtain a corrupt personal benefit. President Obama's actions were clearly for his own corrupt personal benefit because he was asking an adversary for space for the express purpose of furthering his own election chances. Again, President Obama said, "This is my last election. After my election I have more flexibility." President Obama knew the importance of missile defense in Europe, but decided to use that as a bargaining chip with the Russians to further his own election chances in 2012. Three, while ignoring or injuring our national interest. As President Obama's defense secretary said, " Missiles would give us the ability to protect our troops, our bases, our facilities, and our allies in Europe, surely sacrificing the ability to protect our troops and our allies would injure to the national interest." Eric Herschmann: (40:18) Yet President Obama was willing to barter away the safety of our troops and the safety of our allies in exchange for space in the upcoming election. In short, President Obama leveraged the power of his office to the detriment of U.S. policy on missile defense in order to influence the 2012 election solely to his advantage. And we never would have known had President Obama realized that the microphone was on, that there was a hot mic. One could easily substitute President Obama's 2000 exchange with President Medvedev into article one of the house's impeachment articles against President Trump. Using the powers of his high office, President Obama solicited interference of a foreign government, Russia, in the 2012 United States presidential election. He did so through a scheme or course of conduct that included soliciting the government of Russia to give him space, "One missile defense that would benefit his reelection and influence the 2012 United States presidential election to his advantage. In doing so, President Obama used the powers of the presidency in a manner that compromised the national security of the United States and undermined the integrity of the United States democratic process. He thus ignored and injured the interest of the nation." Does it sound familiar house managers? It should, as the case against President Obama would have been far stronger than the allegations against President Trump. President Obama's abuse of power to benefit his own political interests was there and is here now for everyone to hear. It was a direct unquestionable quid pro quo. No mind reading was needed there. Where were the house managers then? And that points out the absurdity of the house managers case against President Trump. It was President Obama, not President Trump who was weak on Russia and weak on support to Ukraine. President Obama caved to Russia and Putin on missile defense when he decided to scrap the U.S. plans to install missile bases on Poland, yet he criticized Senator Romney during the 2012 presidential campaign when Senator Romney said Russia was the greatest geopolitical threat to the U.S. Barack Obama: (42:52) Senator Romney I'm glad that you recognize that Al Qaeda's a threat, because a few months ago when you were asked, "What's the biggest geopolitical threat facing America?" You said, " Russia," not Al Qaeda, you said, "Russia." And the 1980's are now calling to ask for their foreign policy back, because the Cold War has been over for 20 years. Eric Herschmann: (43:13) Now, when it is politically convenient, the Democrats are saying the same thing that President Obama criticized Senator Romney for saying. In fact, they're basing their entire politicized impeachment on this inversion of reality. This claim that President Trump is not supporting Ukraine far more than the prior administration. President Obama caved on missile defense in late 2009, his hot mic moment occurred in March 2012, his reelection was eight months later. Two years later in March 2014, Russia invaded Ukraine in Annex Crimea. President Trump refused to provide lethal aid to Ukraine to enable it, I'm sorry, President Obama refused to provide lethal aid to Ukraine to enable it to defend itself. Where were the house managers then? The house managers would have the American people believe that there is a threat, an imminent threat, to the national security of our country for which the president must be removed immediately from the highest office in the land, because what? Because he had a phone call with a foreign leader and discussed corruption, because he paused for a short period of time giving away our tax dollars to a foreign country? That is their theory. Eric Herschmann: (44:41) It is absurd on its face. Not one American life was in jeopardy or lost by the short delay, and they know it. And how do we know that they know it? Because they went on vacation after they adopted the articles of impeachment. They did not cancel their recess. They did not rush back to deliver the articles of impeachment to the Senate because of this supposed, terrible, imminent threat or national security. What did they do? Speaker 6: (45:10) Urgency. Speaker 5: (45:11) The timing is really driven by the urgency. Speaker 3: (45:13) Urgency. Speaker 4: (45:14) Nothing could be more urgent. Speaker 7: (45:16) The urgency. Nancy Pelosi: (45:18) And urgent. And urgent. Speaker 8: (45:20) There's an urgency to this. Speaker 4: (45:22) And we must move swiftly. Speaker 8: (45:23) Or the time to screw around. Nancy Pelosi: (45:25) It's about urgency. Speaker 9: (45:28) And House Speaker, Nancy Pelosi is still holding onto the articles of impeachment. Eric Herschmann: (45:41) Urgency? Urgency for which you want to immediately remove the president of the United States? You sat on the articles for a month, the longest delay in the history of our country. They adopted them on Friday, December 13th, 2019. Friday the 13th, went on vacation and finally decided after one of their democratic presidential debates had finished, and after the BCS football championship game, that it was time to deliver them. What happened to their national security interest argument? Wasn't that the reason that they said they had to rush to vote? "It's urgent," they told us, "No due process for this president. It is a crisis of monumental proportion. Our national security is at risk every additional day that he's in office," they tell us. The house managers also used the same excuse for not issuing subpoenas for testimony. They had no time for the normal judicial review. They even complain about the judicial review process sitting in this chamber before the Chief Justice of the United States Supreme court, a judicial review in which the judge agreed to an expedited schedule. Even that was not good enough for them when they issued the subpoenas. Eric Herschmann: (47:03) One of the lawyers for the subpoenaed witnesses wrote to the house general counsel, "We are dismayed that the house committees have chosen not to join us in seeking resolution from the judicial brands of this momentous constitutional question as expeditiously as possible." He continued, "It is important to get a definitive judgment from the judicial branch determining their constitutional duty in the place of conflicting demands of the legislative and executive branches." Isn't that the point? Isn't that how our system of government works? Isn't that how it's always worked? Isn't that how it's supposed to work? These same Democrats defended other administrations who fought judicial review of congressional subpoenas, and I think we all remember fast and furious. The same attorney when he wrote to the house chairs said, "The house chairman, Mr. Schiff and Mr. Nadler are mistaken to say the lawsuit is intended to delay or otherwise obstruct the committee's vital investigatory work." Eric Herschmann: (48:13) He continued, "Nor has this lawsuit been coordinated in any way with the White House any more then it has been coordinated with the House of Representatives. If the house chooses not to pursue through subpoena testimony, let the record be clear, that is the house's decision." Yet they come before you and they blame the administration, and they blame you if you don't subpoena witnesses and have them before you. Yet even in the face of this overwhelming evidence, they claim that the president is to blame for their decision to withdraw their own subpoenas or not issue others. Their choice, but the president is responsible. That is one of their claims, it is ludicrous. They are blaming the president because they decided on their own not to seek judicial review and enforcement of their own subpoenas, and for some witnesses never to even issue subpoenas. In their minds, that is impeachable. Eric Herschmann: (49:16) Manager Nadler spoke eloquently back before the house judiciary committee hearing in December of 1998, he said, "There must never be a narrowly voted impeachment or an impeachment substantially supported by one of our major political parties and largely opposed by the other. Such an impeachment would lack legitimacy, would produce divisiveness and bitterness in our politics for years to come, and will call in to question the very legitimacy of our political institutions." Manager Nadler was right then, and it is equally true today. Divisiveness and bitterness. Divisiveness and bitterness. Listen to his words, "Impeachments by one party cause divisiveness and bitterness in our country." That is what a partisan impeachment leads to. Sadly, while Manager Nadler eloquently warned against divisiveness and bitterness, the house did not follow his admonition. They did not heed his advice, and that is one of the reasons we are sitting here today with articles of impeachment that are not founded in our constitution or the evidence, and are brought simply for partisan politics. Eric Herschmann: (50:42) This is a sad time for all of us. This is not a time to give out souvenirs, the pens used to sign the articles of impeachment, trying improperly impeach our country's representative to the world. This is not the time to try to get digs in that, "The president will always be impeached, because we have the majority and we could do it to you and we did it to you." It is wrong. It is not what the American people deserve or want. Sadly, the house managers do not trust their fellow Americans to choose their own president. They do not think that they can legitimately win an election against President Trump, so they need to rush to impeach him immediately. That is what they have continually told the American people, and that, that is a shame. We on the other hand, trust our fellow Americans to choose their president. Choose your candidate, let's senators that are here who are trying to become the democratic nominee, try to win that election, and let the American people choose. Eric Herschmann: (51:53) Maybe they're concerned that the American people like historically low unemployment. Maybe the American people like that their 401K accounts have done extremely well. Maybe the American people like prison reform and giving people a second chance. Tellingly some of these house managers work constructively, constructively with this administration to give Americans a second chance. That was the public interest. That is what the country demands, that's what society deserves. Maybe the American people like an administration that is fighting the opioid epidemic. Maybe the American people like secure borders. Maybe the American people like better trade agreements with our biggest trading partners. Maybe the American people like other countries sharing of the burden when it comes to foreign aid. Maybe the American people actually like lower taxes. In other words, maybe the American people like their current president, a president who kept his promises and delivered on them. Eric Herschmann: (53:04) If you think Americans want to abandon our prosperity and our unprecedented successes under this president, then convince the electorate in November at the ballot box. Do not try to improperly interfere with an election that is only months away based on these articles of impeachment. In your trial memorandum that you submitted here before the Senate, you speak about the framers of the constitution believing that President Trump's alleged conduct is their, "Worst nightmare," and that they would be horrified. In fact, sadly, sadly, it is the house manager's conduct in bringing these baseless articles of impeachment that would clearly be their and our worst nightmare. Thank you.