Jan 25, 2020

Trump Defense Team Opening Argument Transcript: Jan 25 Impeachment Trial Statements from Cipollone, Philbin, Sekulow, Purpura

White House Lawyer Pat Cipollone Argument Transcript
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White House lawyers and members of Donald Trump’s legal team provided his defense arguments on January 25, 2020 at the Donald Trump Impeachment Trial in the Senate. Read the full transcript of the opening defense arguments from Pat Cipollone, Patrick Philbin, Jay Sekulow, and Michael Purpura.

Pat Cipollone Opening Argument

Pat Cipollone: (00:00)
Thank you, Mr. Chief Justice. Senators, leader McConnell, democratic leader Schumer. Thank you for your time and thank you for your attention. I want to start out just very briefly giving you a short plan for today. We are going to be very respectful of your time. As leader McConnell said, we anticipate going about two to three hours at most and to be out of here by one o’clock at the latest. We’re going to focus today on two points. You heard the house manager speak for nearly 24 hours over three days. We don’t anticipate using that much time. We don’t believe that they have come anywhere close to meeting their burden for what they’re asking you to do. In fact, we believe that when you hear the facts and that’s what we intend to cover today, the facts, you will find that the president did absolutely nothing wrong.

Pat Cipollone: (01:13)
And what we intend to do today, and we’ll have more presentations in greater detail on Monday, but what we intend to do today is go through their record that they established in the house, and we intend to show you some of the evidence that they adduced in the house that they decided over there three days and 24 hours that they didn’t have enough time or made a decision not to show you. And every time you see one of these pieces of evidence, ask yourself, “Why didn’t I see that in the first three days?” They had it, it came out of their process. Why didn’t they show that to the Senate? And I think that’s an important question because as house managers, really their goal should be to give you all of the facts because they’re asking you to do something very, very consequential. And I would submit to you to use a word that Mr. Schiff used a lot.

Pat Cipollone: (02:28)
Very, very dangerous. And that’s the second point that I’d ask you to keep in mind today. They’re asking you not only to overturn the results of the last election, but as I’ve said before, they’re asking you to remove president Trump from the ballot in an election that’s occurring in approximately nine months. They’re asking you to tear up all of the ballots across this country on your own initiative. Take that decision away from the American people. And I don’t think they spent one minute of their 24 hours talking to you about the consequences of that for our country. Not one minute. They didn’t tell you what that would mean for our country today, this year, and forever into our future. They’re asking you to do something that no Senate has ever done and they’re asking you to do it with no evidence and that’s wrong. And I asked you to keep that in mind.

Pat Cipollone: (03:50)
I ask you to keep that in mind. So what I would do is point out one piece of evidence for you and then I’m going to turn it over to my colleagues and they will walk you through their record and they will show you things that they didn’t show you. Now, they didn’t talk a lot about the transcript of the call, which I would submit is the best evidence of what happened on the call and they said things over and over again that are simply not true. One of them was there’s no evidence of president Trump’s interest in burden sharing. That wasn’t the real reason, but they didn’t tell you that burden sharing was discussed in the call, in the transcript of the call. They didn’t tell you that. Why? Let me read it to you. Here’s the president and we’ll go through the entire transcript. I’m not going to read the whole transcript. We’ll make it available. I’m sure you have it, but we’ll make available copies of the transcripts so you can have it.

Pat Cipollone: (05:03)
The president said and they read this line. “I will say that we do a lot for Ukraine. We spend a lot of effort and a lot of time,” but they stopped there. They didn’t read the following, “Much more than European countries are doing and they should be helping you more than they are. Germany does almost nothing for you. All they do is talk, and I think it’s something that you should really ask them about. When I was speaking to Angela Merkel, she talks Ukraine, but she doesn’t do anything. A lot of European countries are the same way. So I think it’s something you want to look at. But the United States has been very, very good to Ukraine.” That’s where they picked up again, with the quote, but they left out the entire discussion of burden sharing.

Pat Cipollone: (06:07)
Now what does president Zelensky say? Does he disagree? No, he agrees. They didn’t tell you this, didn’t have time in 24 hours to tell you this. “Yes, you are absolutely right. Not only 100% but actually 100% and I can tell you the following, I did talk to Angela Merkel and I did meet with her and I also met and talked with Macron and I told them that they are not doing quite as much as they need to be doing on the issues with the sanctions. They are not enforcing the sanctions, they are not working as much as they should work for Ukraine.

Pat Cipollone: (06:56)
It turns out that even though logically the European union should be our biggest partner, but technically the United States is a much bigger partner than the European union and I’m very grateful to you for that because the United States is doing quite a lot for Ukraine, much more than the European union, especially when we are talking about sanctions against the Russian Federation.” You heard a lot about the importance of confronting Russia and we’re going to talk about that and you will hear that President Trump has a strong record on confronting Russia.

Pat Cipollone: (07:39)
You will hear that President Trump has a strong record of support for Ukraine. You will hear that from the witnesses in their record that they didn’t tell you about. So that’s one very important example. They come here to the Senate and they ask you remove a president, tear up the ballots in all of your States and they don’t bother to read the key evidence of the discussion of burden sharing. That’s in the call itself. Now that’s emblematic of their entire presentation. I’m going to turn the presentation over to my colleague Mike Purpura. He’s going to walk you through many more examples of this and with each example, ask yourself, “Why am I just hearing about this now after 24 hours of sitting through arguments, why?” And the reason is we can talk about the process, we will talk about the law, but today we are going to confront them on the merits of their argument. Now they have the burden of proof and they have not come close to meeting it.

Pat Cipollone: (09:26)
In fact, and I want to ask you to think about one issue regarding process beyond process. If you were really interested in finding out the truth, why would you run a process the way they ran? If you were really confident in your position on the facts, why would you lock everybody out of it from the president’s side? Why would you do that? We will talk about the process arguments, but the process arguments also are compelling evidence on the merits because it’s evidence that they themselves don’t believe in the facts of their case and the fact that they came here for 24 hours and hid evidence from you is further evidence that they don’t really believe in the facts of their case, that this is for all their talk about election interference, that they’re here to perpetrate the most massive interference in an election in American history, and we can’t allow that to happen.

Pat Cipollone: (10:44)
It would violate our constitution, it would violate our history, it would violate our obligations to the future, and most importantly, it would violate the sacred trust that the American people have placed in you and have placed in them. The American people decide elections. They have one coming up in nine months. So we will be very efficient. We will begin our presentation today. We will show you a lot of evidence that they should have showed you and we will finish efficiently and quickly so that we can all go have an election. Thank you. And I yield to my colleague Michael Purpura.

Michael Purpura Opening Argument

Michael Purpura: (00:00)
Mr. Chief Justice, Members of the Senate, good morning. Again, my name is Michael Purpura. I serve as Deputy Counsel to the President. It is my honor and privilege to appear before you today on behalf of President Donald J. Trump.

Adam Schiff: (00:24)
And what is the President’s response? Well, it reads like a classic organized crime shakedown, shorn of its rambling character, and in not so many words, this is the essence of what the President communicates, “We’ve been very good to your country, very good. No other country has done as much as we have. But you know what? I don’t see much reciprocity here. I hear what you want. I have a favor I want from you, though, and I’m going to say this only seven times so you better listen good. I want you to make up dirt on my political opponent, understand lots of it. on this and on that, I’m going to put you in touch with people and not just any people, I’m going to put you in touch with the Attorney General of the United States, my Attorney General, Bill Barr.

Adam Schiff: (01:15)
He’s got the whole weight of the American law enforcement behind him, and I’m going to put you in touch with Rudy. You’re going to love him, trust me. You know what I’m asking and so I’m only going to say this a few more times in a few more ways. By the way, don’t call me again, I’ll call you when you’ve done what I asked.” This is in some and character what the President was trying to communicate.

Michael Purpura: (01:46)
That’s fake, that’s not the real call. That’s not the evidence here. That’s not the transcript that Mr. Cipollone just referenced and we can shrug it off and say we were making light or a joke, but that was in a hearing in the United States House of Representatives discussing the removal of the President of the United States from office. There are very few things, if any, that can be as grave and as serious. Let’s stick with the evidence. Let’s talk about the facts and the evidence in this case. The most important piece of evidence we have in the case and before you is the one that we began with nearly four months ago. The actual transcript of the July 25, 2019 telephone call between President Trump and President Zelensky, the real transcript.

Michael Purpura: (02:50)
If that were the only evidence we had, it would be enough to show that the Democrats’ entire theory is completely unfounded. But the transcript is far from the only evidence demonstrating that the President did nothing wrong. Once you sweep away all of the bluster and innuendo, the selective leaks, the closed door examinations of the Democrats’ handpicked witnesses, the staged public hearings, what we’re left with are six key facts that have not and will not change. First, the transcript shows that the President did not condition either security assistance or a meeting on anything. The paused security assistance funds aren’t even mentioned on the call. Second, President Zelensky and other Ukrainian officials have repeatedly said that there was no quid pro quo and no pressure on them to review anything.

Michael Purpura: (04:06)
Third, President Zelensky and high ranking Ukrainian officials did not even know, did not even know the security assistance was paused until the end of August, over a month after the July 25 call. Fourth, not a single witness testified that the President himself said that there was any connection between any investigations and security assistance, a Presidential meeting, or anything else. Fifth, the security assistance flowed on September 11 and a Presidential meeting took place on September 25 without the Ukrainian government announcing any investigations. Finally, the Democrats’ blind drive to impeach the President does not and cannot change the fact as attested to by the Democrats’ own witnesses that President Trump has been a better friend and stronger supporter of Ukraine than his predecessor.

Michael Purpura: (05:12)
Those are the facts. We plan to address some of them today and some of them next week. Each one of these six facts standing alone is enough to sink the Democrats’ case. Combined, they establish what we’ve known since the beginning, the President did absolutely nothing wrong. The Democrats’ allegation that the President engaged in a quid pro quo is unfounded and contrary to the facts. The truth is simple and it’s right before our eyes, the President was at all times acting in our national interest and pursuant to his Oath of Office. But before I dive in and speak further about the facts, let me mention something that my colleagues will discuss in greater detail. The facts that I’m about to discuss today are the Democrats’ facts. This is important because the house managers spoke to you for a very long time, over 21 hours and have repeatedly claimed to you that their case is, in their evidence, is overwhelming and uncontested.

Michael Purpura: (06:23)
It’s not. I’m going to share a number of facts with you this morning that the house managers didn’t share with you during more than 21 hours. I’ll ask you as Mr. Cipollone already mentioned that when you hear me say something that the house managers didn’t present to you, ask yourself, “Why didn’t they tell me that? Is that something I would have liked to have known? Why am I hearing it for the first time from the President’s lawyers?” It’s not because they didn’t have enough time, that’s for sure, they only showed you a very selective part of the record, their record. And they, remember this, they have the very heavy burden of proof before you. The President is forced to mount a defense in this chamber against a record that the Democrats developed. The record that we have to go on today is based entirely on house democratic facts pre-cleared in a basement bunker. Not mostly, entirely.

Michael Purpura: (07:36)
Yet even those facts absolutely exonerate the President. Let’s start with the transcript. The President did not link security assistance to any investigations on the July 25 call. Let’s step back. On July 25, President Trump called President Zelensky. This was their second phone call. Both were congratulatory. On April 21st, President Trump called to congratulate President Zelensky on winning the Presidential election. On July 25, the President called because President Zelensky’s party had just won a large number of seats in parliament. On September 24, before Speaker Pelosi had any idea what President Trump and President Zelensky actually said on the July 25 call, she called for an impeachment inquiry into President Trump. In the interest of full transparency and to show that he had done nothing wrong, President Trump took the unprecedented, unprecedented step of declassifying the call transcript so that the American people could see for themselves exactly what the two Presidents discussed.

Michael Purpura: (08:48)
So what did President Trump say to Presidents Zelensky on the July 25 call? President Trump raised two issues. I’m going to be speaking about those two issues a fair amount this morning. They’re the two issues that go to the core of how President Trump approaches foreign aid. When it comes to sending US taxpayer money overseas, the President is focused on burden sharing and corruption. First, the President rightly had real concerns about whether European and other countries were contributing their fair share to ensuring Ukraine’s security. Second, corruption. Since the fall of the Soviet union, Ukraine has suffered from one of the worst environments for corruption in the world. A parade of witnesses testified in the House about the pervasive corruption in Ukraine and how it is in America’s foreign policy and national security interests to help Ukraine combat corruption.

Michael Purpura: (09:48)
Turning the call, right off the bat. President Trump mentioned burden sharing to President Zelensky. President Trump told President Zelensky that Germany does almost nothing for you and a lot of European countries are the same way. President Trump specifically mentioned speaking to Angela Merkel of Germany whom he said talks Ukraine but she doesn’t do anything. President Zelensky agreed, “You are absolutely right.” He said that he spoke with the leaders of Germany and France and told them that they are not doing quite as much as they need to be doing. So right at the beginning of the call, President Trump was talking about burden sharing. President Trump then turned to corruption in the form of foreign interference in the 2016 Presidential election. There is absolutely nothing wrong with asking a foreign leader to help get to the bottom of all forms of foreign interference in an American Presidential election.

Michael Purpura: (10:46)
You’ll hear more about that later from one of my colleagues. What else did the President say? The President also warned President Zelensky that he appeared to be surrounding himself with some of the same people as his predecessor and suggested that a very fair and very good prosecutor was shut down by some very bad people. Again, one of my colleagues will speak more about that. The content of the July 25 call was in line with the Trump administration’s legitimate concerns about corruption and reflected the hope that Presidents Zelensky, who campaigned on a platform of reform, would finally clean up Ukraine. So what did President Trump and President Zelensky discuss in the July 25 call? Two issues, burden sharing, corruption. Just as importantly, what wasn’t discussed on the July 25 call?

Michael Purpura: (11:38)
There was no discussion of the paused security assistance on the July 25 call. House Democrats keep pointing to President Zelensky’s statement that, “I would also like to thank you for your great support in the area of defense.” But he wasn’t talking there about the paused security assistance. He tells us in the very next sentence exactly what he was talking about, Javelin missiles. “We are ready,” Presidents Zelensky continues, “to continue to cooperate for the next steps, specifically, we are almost ready to buy more Javelins from the United States for defense purposes.” Javelins are the anti-tank missiles only made available to the Ukrainians by President Trump. President Obama refused to give Javelins to the Ukrainians for years. Javelin sales were not part, were not part of the security assistance that had been paused at the time of the call.

Michael Purpura: (12:33)
Javelin sales have nothing to do with the paused security assistance, those are different programs entirely. But don’t take my word for it. Both former ambassador to Ukraine, Maria Yovanovitch, and NSC Senior Director, Timothy Morrison, confirmed that the Javelin missiles and the security assistance were unrelated. The house managers didn’t tell you about Ambassador Yovanovitch’s and Tim Morrison’s testimony. Why not? They couldn’t have taken two to five…

Michael Purpura: (13:03)
Why not? They couldn’t have taken two to five minutes out of 21 hours to make sure you understood that the javelin sales being discussed were not part of the pause security assistance. This puts the following statement by President Trump in a whole new light, doesn’t it? I would like you to do us a favor though, because our country has been through a lot and Ukraine knows a lot about it. As everyone knows by now, President Trump asked President Zelensky to do us a favor and he made clear that us referred to our country and not himself. More importantly, the President was not connecting. Do us a favor to the javelin sales that President Zelensky mentioned, it makes no sense in the language there.

Michael Purpura: (13:46)
But even if he had been, the javelin sales were not part of the security assistance that had been temporarily paused. I want to be very clear about this. When the House Democrats claim that the javelin sales discussed on the July 25 call are part of the pause security assistance, it is misleading. They are trying to confuse you and just sort of wrap everything in, instead of unpacking it the right way. There was no mention of the pause security assistance on the call, and certainly not from President Trump. As you know, head of state calls are staffed by a number of aides on both sides.

Michael Purpura: (14:26)
Lieutenant Colonel Alexander Vindman, the detailee at the National Security Council raised a concern about the call and that was just a policy concern. Lieutenant Colonel Vindman admitted that he did not know whether there was a crime or anything of that nature, but he had deep policy concerns, policy concerns. So there you have it. But the President, the President sets the foreign policy. In a democracy such as ours, the elected leaders make foreign policy while the unelected staff, such as Lieutenant Colonel Vindman implement the policy.

Michael Purpura: (15:05)
Other witnesses were on the July 25 call and had very different reactions than that of Lieutenant Colonel Vindman. Lieutenant General Keith Kellogg, national security advisor to the Vice President, former acting national security advisor, and a long-serving and highly decorated veteran attended the call. According to General Kellogg, “I was on the much reported July 25 call between President Donald Trump and President Zelensky. As an exceedingly proud member of President Trump’s administration and as a 34 year highly experienced combat veteran who retired with the rank of Lieutenant General in the Army, I heard nothing wrong or improper on the call. I had and have no concerns.”

Michael Purpura: (15:58)
The house managers said that other witnesses were also troubled by the July 25 call and identified those witnesses as Jennifer Williams and Tim Morrison. Jennifer Williams, who works for Lieutenant General Kellogg, now claims that she has concerns about the call. You heard that from the house managers. They were very careful in the way they worded that. What they didn’t tell you is that Ms. Williams was so troubled at the time of the call that she told exactly zero people of her concern. She told no one for two months following the call, not one person. Ms. Williams didn’t raise any concerns about the call when it took place. Not with Lieutenant General Kellogg, not with counsel, not with anyone. Ms. Williams waited to announce her concerns until speaker Pelosi publicly announced her impeachment inquiry. The house managers didn’t tell you that.

Michael Purpura: (17:01)
Why not? Tim Morrison, who was Lieutenant Colonel Vindman’s boss, was also on the call. Mr. Morrison reported the call to the National Security Council lawyers, not because he was troubled by anything on the call, but because he was worried about leaks. And in his words, “How it would play out in Washington’s polarized environment.” “I want to be clear,” Mr. Morrison testified, ‘I was not concerned that anything illegal was discussed.’ Mr. Morrison further testified that there was nothing improper and nothing illegal about anything that was said on the call. In fact, Mr. Morrison repeatedly testified that he disagreed with Lieutenant Colonel Vindman’s assessment that President Trump made demands of President Zelensky, or that he said anything improper at all. Here’s Mr. Morrison.

Adam Schiff: (17:48)
In that transcript, does the President not ask Zelensky to look into the Bidens?

Tim Morrison: (17:54)
Mr. Chairman, I can only tell you what I was thinking at the time. That is not what I understood the President to be doing.

Mike Turner: (18:01)
Do you believe, in your opinion, that the President of the United States demanded that President Zelensky undertake these investigations?

Tim Morrison: (18:07)
No, sir.

Brad Wenstrup: (18:08)
And you didn’t hear the President make a demand, did you?

Tim Morrison: (18:13)
No, sir.

John Ratcliffe: (18:13)
Again, there were no demands from your perspective, Mr. Morrison?

Tim Morrison: (18:17)
That is correct, sir.

John Ratcliffe: (18:18)
But is it fair to say that as you were listening to the call, you weren’t thinking, “Wow, the President is bribing the President of Ukraine?” That never crossed your mind?

Tim Morrison: (18:27)
It did not, sir.

John Ratcliffe: (18:28)
Or that he was extorting the President of the Ukraine?

Tim Morrison: (18:31)
It did not, sir.

John Ratcliffe: (18:32)
Or doing anything improper?

Tim Morrison: (18:34)
Correct, sir.

Michael Purpura: (18:38)
Significantly, the Ukrainian government never raised any concerns about the July 25 call. Just the hours after the call, Ambassador William Taylor, head of the US mission in Ukraine, had dinner with the then Secretary of the Ukrainian National Security and Defense Counsel who seem to think that the call went fine. The call went well. He wasn’t disturbed by anything. The house managers didn’t tell you that.

Michael Purpura: (19:07)
Why not? Ambassador Kurt Volker, the US special representative for Ukraine was not on the call, but Ambassador Volker spoke regularly with President Zelensky and other top officials in the Ukraine government and even met with President Zelensky the day after the call. He testified that in no way, shape or form in either the readouts from the United States or Ukraine, did he receive any indication whatsoever for anything that resembles a quid pro quo on the July 25 call. Here’s Ambassador Volker.

Elise Stefanik: (19:43)
And in fact, the day after the call you met with President Zelensky. This would be on July 26.

Kurt Volker: (19:49)
That’s correct.

Elise Stefanik: (19:49)
And in that meeting he made no mention of quid pro quo?

Kurt Volker: (19:53)

Elise Stefanik: (19:53)
He made no mention of withholding the aid?

Kurt Volker: (19:55)

Elise Stefanik: (19:56)
He made no mention of bribery?

Kurt Volker: (19:57)

Elise Stefanik: (19:58)
So the fact is the Ukrainians were not even aware of this hold on aid, is that correct?

Kurt Volker: (20:03)
That’s correct.

Michael Purpura: (20:05)
They didn’t tell you about this testimony from Ambassador Volker. Why not? President Zelensky himself has confirmed on at least three separate occasions that his July 25 call with President Trump was a good phone call and normal and that nobody pushed me. When President Zelensky’s advisor, Andriy Yermak, was asked if he had ever felt there was a connection between the US military aid and the requests for investigations, he was adamant that we never had that feeling and we did not have the feeling that this aid was connected to any one specific issue.

Michael Purpura: (20:40)
Of course, the best evidence that there was no pressure or quid pro quo is the statements of the Ukrainians themselves. The fact that President Zelensky himself felt no pressure on the call and did not perceive there to be any connection between security assistance and investigations would in any ordinary case, in any court, be totally fatal to the prosecution. The judge would throw it out. The case would be over. What more do you need to know? The house team knows that. They know the record inside out, upside down, left and right. So what do they do? How do they try to overcome the direct words from President Zelensky and his administration that they felt no pressure?

Michael Purpura: (21:29)
They tell you that the Ukrainians must have felt pressure, regardless of what they’ve said. They try to overcome the devastating evidence against them by apparently claiming to be mind readers. They know what’s in President Zelensky’s mind better than President Zelensky does. President Zelensky said he felt no pressure. The house managers tell you they know better. And this is really a theme of the house case. I want you to remember this. Every time the Democrats say that President Trump made demands or issued a quid pro quo to President Zelensky on the July 25 call, they are saying that President Zelensky and his top advisors are being untruthful. And they acknowledge that’s what they’re saying.

Michael Purpura: (22:23)
They’ve said it over the past few days. Tell me how that helps US foreign policy and national security to say that about our friends. We know there was no quid pro quo on the call. We know that from the transcripts. But the call is not the only evidence showing that there was no quid pro quo. There couldn’t possibly have been a quid pro quo because the Ukrainians did not even know that the security assistance was on hold until it was reported in the media by Politico at the end of August, more than a month after the July 25 call.

Michael Purpura: (23:08)
Think about this. The Democrats accused the President of leveraging security assistance to supposedly force President Zelensky to announce investigations. But how can that possibly be when the Ukrainians were not even aware that the security assistance was paused? There can’t be a threat without the person knowing he’s being threatened. There can’t be a quid pro quo without the quo. Ambassador Volker testified that the Ukrainians did not know about the hold until reading about it in Politico. Ambassador Taylor and Tim Morrison both agreed. Deputy Assistant Secretary of State, George Kent, testified that no Ukrainian official contacted him about the paused security assistance until that first intense week in September. Let’s hear it from the four of them.

Kurt Volker: (24:00)
I believe the Ukranians became aware of the hold on August 29th and not before. That date is the first time any of them asked me about the hold by forwarding an article that had been published in Politico.

William Taylor: (24:11)
It was only after August 29th, when the Politico article came out, that I got calls from several of the Ukrainian officials.

Steve Castor: (24:21)
You mentioned the August 28th Politico article. Was that the first time that you believe the Ukrainians may have had a real sense that the aid was on hold?

Tim Morrison: (24:30)

Speaker 2: (24:31)
Mr. Kent, had you had any Ukrainian official contacting you concerned about … When was the first time a Ukrainian official contacted you concerned about potential withholding of US aid?

George Kent: (24:42)
It was after the article in Politico came out, in that first intense week of September.

Speaker 3: (24:49)
It wasn’t until the Politico article that-

George Kent: (24:51)
That’s correct. I received a text message from one of my Ukrainian counterparts on August 29th forwarding that article, and that’s the first they raised it with me.

Michael Purpura: (25:00)
The house managers didn’t show you this testimony from any of these four witnesses. Why not? Why didn’t they give you the context of this testimony? And think about this as well. If the Ukrainians had been aware of the review on security assistance, they of course would have said something. There were numerous high-level diplomatic meetings between senior Ukrainian and US officials during the summer. After the review on the security assistance began, but before President Zelensky learned of the hold through the Politico article. If the Ukrainians had known about the hold, they would have raised it in one of those meetings. Yet the Ukrainians didn’t say anything about the hold at a single one of those meetings. Not on July 9, not on July 10, not on July 25, not on July 26, not on August 27. At none of those meetings, none of those meetings-

Michael Purpura: (26:03)
At none of those meetings, none of those meetings, did the Ukrainians mention the pause on security assistance. Ambassador Volker testified that he was regularly in touch with the senior highest level officials in the Ukrainian government, and Ukrainian officials would confide things, and would have asked if they had any questions about the aid. Nobody said a word to Ambassador Volker until the end of August. Then within hours of the political article being published, Mr. Yermak texted Ambassador Volker with a link to the article and to ask about the report. In other words, as soon as the Ukrainians learned about the hold, they asked about it.

Michael Purpura: (26:48)
Now, Mr. Schiff said something during the 21 hours, or more than 21 hours, that he and his team spoke that I actually agree with, which is when he talked about common sense. Many of us at the tables and in the room are former prosecutors at the state, federal or military level. Prosecutors talk a lot about common sense. Common sense comes into play right here. The top Ukrainian officials said nothing, nothing at all to their US counterparts during all of these meetings about the pause on security assistance. But then boom, as soon as the political article comes out, suddenly in that first intense week of September in George Kent’s words, security assistance was all they wanted to talk about. What must we conclude if we’re using our common sense? That they didn’t know about the pause until the political article on August 28th? No activity before, article comes out, flurry of activity.

Michael Purpura: (27:53)
That’s common sense and it’s absolutely fatal to the house managers’ case. The house managers are aware that the Ukrainian’s lack of knowledge on the hold is fatal to their case and so they’ve desperately tried to muddy the water. The managers told you the Deputy Assistant Secretary of Defense, Laura Cooper, presented two emails, two emails that people on her staff received from people at the state department regarding conversations with people at the Ukraine embassy that could have been about US security assistance to Ukraine. What they did not tell you is that Ms. Cooper testified that she could not say for certain whether the emails were about the pause on security assistance. She couldn’t say one way or the other. She also testified that she didn’t want to speculate about the meaning of the words in the emails. The house managers also didn’t tell you Ms. Cooper testified that, “I reviewed my calendar and the only meeting where I can recall where Ukrainian official raising the issue of security assistance with me is on September 5th at the Ukrainian independence day celebration.” The house managers didn’t tell you that.

Michael Purpura: (29:12)
The house managers also mentioned that one of Ambassador Volker’s advisors, Catherine Croft, claimed that the Ukrainian embassy officials learned about the pause earlier than the political article. But when asked when she heard from the Ukraine embassy officials, Ms. Croft admitted that she can’t remember those specifics and did not think that she took notes. Ms. Croft also did not remember when news of the hold became public. Remember though that Ambassador Volker, her boss, who was in regular contact with President Zelensky and the top Ukrainian aids was very clear that “I believe the Ukrainians became aware of the hold on August 29th and not before.”

Michael Purpura: (29:51)
This is all the house managers have. In contrast to the testimony of Volker, Taylor, Morrison, and Kent, the texts from Yermak, the words of the high ranking Ukrainians themselves, and the flurry of activity that began on August 28th. And that’s the evidence that they want you to consider as a basis to remove the duly elected President of the United States. The bottom line is it is not possible for the brief security assistance review to have been used as leverage when President Zelensky and other top Ukrainian officials did not know about it. That’s what you need to know. That’s what the house managers didn’t tell you. The house managers know how important this issue is. When we briefly mentioned it a few days ago, they told us we needed to check our facts. We did. We’re right. President Zelensky and his top aids did not know about the pause on security assistance at the time of the July 25 call, and did not know about it until August 28 when a political article was published. We know there was no quid pro quo on the July 25 call. We know that Ukrainians did not know that security assistance had been paused at the time of the call. There was simply no evidence anywhere that President Trump ever linked security assistance to any investigations. Most of the Democrats’ witnesses have never spoken to the president at all, let alone about Ukraine security assistance. The two people in the house record who asked President Trump about whether there was any linkage between security assistance and investigations were told in no uncertain terms that there is no connection between the two. When Ambassador of the European Union, Gordon Sondland, asked the president in approximately the September 9 timeframe, the president told him, “I want nothing. I want nothing. I want no quid pro quo.’ Even earlier, on August 31 Senator Ron Johnson asked the president if there was any connection between security assistance and investigations. The president answered, “No way. I would never do that. Who told you that?”

Michael Purpura: (32:07)
Two witnesses, Ambassador Taylor and Tim Morrison said they came to believe security assistance was linked to investigations, but both witnesses base this belief entirely on what they heard from Ambassador Sondland before Ambassador Sondland spoke to the president. Neither Taylor nor Morrison ever spoke to the president about the matter. How did Ambassador Sondland come to believe that there was any connection between security assistance and investigations? Again, the house managers didn’t tell you. Why not? In his public testimony, Ambassador Sondland used variations of the words assume, presume, guess, speculate and belief over 30 times. Here’s some examples.

Gordon Sondland: (33:01)
That was my presumption, my personal presumption. That was my belief. That was my presumption. Yeah. As that said, I presume that might have to be done in order to get the aid released. It was a presumption. I’ve been very clear as to when I was presuming and I was presuming on the aid. It would be pure, you know, guesswork on my part. Speculation. I don’t know. That was the problem, Mr. Goldman. No one told me directly that the aid was tied to anything. I was presuming it was.

Michael Purpura: (33:32)
They didn’t show you any of this testimony. Not once during their 21 hour presentation. 21 hours. More than 21 hours, and they couldn’t give you the context to evaluate Ambassador Sondland. All the Democrats have to support the alleged link between security assistance and investigations is Ambassador Sondland’s assumptions and presumptions. We remember this exchange.

Mike Turner: (34:02)
Is it correct no one on this planet told you that Donald Trump was tying this aid to the investigations because if your answer is yes, then the chairman’s wrong and the headline on CNN is wrong. No one on this planet told you that President Trump was tying aid to investigations. Yes or no?

Gordon Sondland: (34:20)

Mike Turner: (34:21)
So you really have no testimony today that ties President Trump to a scheme to withhold aid from Ukraine in exchange for these investigations?

Gordon Sondland: (34:32)
Other than my own presumption.

Michael Purpura: (34:36)
When he was done presuming, assuming and guessing, Ambassador Sondland finally decided to ask President Trump directly, what does the president want from Ukraine? Here’s the answer.

Gordon Sondland: (34:47)
President Trump, when I asked him the open ended question as I testified previously, “What do you want from Ukraine?” His answer was, “I want nothing. I want no quid pro quo. Tells the Zelensky to do the right thing.” That’s all I got from President Trump.

Michael Purpura: (35:04)
The president was unequivocal. Ambassador Sondland stated this was the final word he heard from the President of the United States. And once he learned this, he text messaged Ambassadors Taylor and Volker. “The president’s been crystal clear. No quid pro quos of any kind.” If you are skeptical of Ambassador Sondland’s testimony, it was corroborated by the statement of one of your colleagues, Senator Johnson. Senator Johnson also had heard from Ambassador Sondland that the security assistance might be linked to the investigations. So on August 31 Senator Johnson asked the president directly whether there was some kind of arrangement where Ukraine would take some action and the hold would be lifted again. President Trump’s answer was crystal clear. “No way. I would never do that. Who told you that?” As Senator Johnson wrote, “I have accurately characterized his reaction as adamant, vehement and angry.” They didn’t tell you about Senator Johnson’s letter.

Michael Purpura: (36:08)
Why not? The Democrats’ entire quid pro quo theory is based on nothing more than the initial speculation of one person, Ambassador Sondland. That speculation is wrong. Despite the Democrats’ hopes the ambassador’s mistaken belief does not become true merely because he repeated it many times, and apparently to many people. Undersecretary of State, David Hale, George Kent, and Ambassador Volker all testified that there was no connection whatsoever between security assistance and investigations. Here’s Ambassador Volker.

Mike Turner: (36:52)
You had a meeting with the President United States, and you believe that the policy issues that he raised concerning Ukraine were valid, correct?

Kurt Volker: (36:59)

Mike Turner: (37:00)
Did the President of United States ever say to you that he was not going to allow aid for the United States to go to the Ukraine unless there were investigations into Burisma, the Bidens, or the 2016 elections?

Kurt Volker: (37:12)
No, he did not.

Mike Turner: (37:13)
Did the Ukrainians ever tell you that they understood that they would not get a meeting with the President of United States, a phone call with the President of United States, military aid, or foreign aid, from the United States unless they undertook investigations of Burisma, the Bidens, or the 2016 elections?

Kurt Volker: (37:30)
No, they did not.

Michael Purpura: (37:32)
The house managers never told you any of this. Why not? Why didn’t they show you this testimony? Why didn’t they tell you about this testimony? Why didn’t they put Ambassador Sondland’s testimony in its full and proper context for your consideration? Because none of this fits their narrative and it wouldn’t lead to their predetermined outcome. Thank you for your attention. I yield to Mr. Sekulow.

Jay Sekulow Opening Argument

Jay Sekulow: (00:00)
Mr. Chief Justice, Majority Leader McConnell, Democratic Leader Schumer, house managers, members of the Senate. Let me begin by saying that you cannot simply decide this case in a vacuum. Mr. Schiff said yesterday, I believe it was his father who said, you should put yourself in someone else’s shoes. Let’s for a moment, put ourselves in the shoes of the president of the United States right now. Before he was sworn into office, he was subjected to an investigation by the Federal Bureau of Investigation called Crossfire Hurricane. The president within six months of his inauguration, found a special counsel being appointed to investigate a Russia collusion theory. In their opening statement, several members of the house managers tried to once again re-litigate the Mueller case.

Jay Sekulow: (01:06)
Here’s the bottom line, this is part one of the Mueller Report. This part alone is 199 pages. The house managers in the presentation a couple of times referenced this for that. Let me tell you something. This cost $32 million. This investigation took 2,800 subpoenas. This investigation had 500 search warrants. This had 230 orders for communication records. This had 500 witness interviews. All to reach the following conclusion, and I’m going to quote from the Mueller report itself. It can be found on page 173. As it relates to this whole matter of collusion and conspiracy, ultimately, is the words of Bob Mueller in his report, this investigation did not establish that the campaign coordinated or conspired with the Russian government in its election interference activities.

Jay Sekulow: (02:34)
Let me say that again. This, the Mueller Report, resulted in this. That for this. Ultimately, the investigation did not establish that the campaign coordinated or conspired with the Russian government in its election related interference activities. This for that. In his summation on Thursday night, Manager Schiff complained that the president chose not to go with the determination of his intelligence agencies regarding foreign interference and instead decided that he would listen to people that he trusted, and he would inquire about the Ukraine issue himself. Mr. Schiff did not like the fact that the president did not apparently blindly trust some of the advice he was being given by the intelligence agencies. First of all, let me be clear, disagreeing with the president’s decision on foreign policy matters or whose advice he’s going to take is in no way an impeachable offense. Second, Mr. Schiff and Mr. Nadler of all people, because they chair significant committees, really should know this, and they should know what’s happened. Let me remind you of something. Just six tenths of a mile from this chamber sits the Foreign Intelligence Surveillance Court, also known as the FISA Court. It is the federal court established and authorized under the Foreign Intelligence Surveillance Act to oversee request by federal agencies for surveillance orders against foreign spies inside the United States, including American citizens.

Jay Sekulow: (04:29)
Because of the sensitive nature of its business, the court is a more secret court. Its hearings are closed to the public. In this court, there are no defense counsel, no opportunity to cross examine witnesses and no ability to test evidence. The only material that the court ever sees are those materials that are submitted on trust by members of the intelligence community with the presumption that they would be acting in good faith. On December 17th, 2019 the FISA Court issued a scathing order in response to the Justice Department inspector general’s report on FBI’s Crossfire Hurricane investigation into whether or not the Trump campaign was coordinating with Russia. We already know the conclusion.

Jay Sekulow: (05:22)
That report detailed the FBI’s pattern and practice, systematic abuses of obtaining surveillance order requests and the process they utilized. In its order, and this is the order from the court. I’m going to read it. This order response to reports that personnel of the Federal Bureau of Investigation provided false information to the National Security Division of the Department of Justice, and withheld material information from the NSD, which was detrimental to the FBI’s case in connection with four applications for the Foreign Intelligence Surveillance Court. When the FBI personnel misled NSD in the ways that are described in these reports, they equally misled the Foreign Intelligence Surveillance Court.

Jay Sekulow: (06:15)
This order has been followed up. There’s been another order. It was declassified just a couple of days ago. Thanks in large part, the court said, to the Office of Inspector General US Department of Justice, the court has received notice of material misstatements and omissions in applications filed by the government in the above captioned documents. DOJ assesses that with respect to the applications, and it lists two specific docket numbers, 17375 and 17679, if not earlier. There was insufficient predication to establish probable cause to believe that Carter Page was acting as an agent of a foreign power. The president had reason to be concerned about the information he was being provided.

Jay Sekulow: (07:13)
Now, we could ignore this. We could make-believe this did not happen, but it did. As we begin introducing our arguments, I want to correct a couple of things in the record as well. That’s what we’re doing today. We really intend to show over the next several days that the evidence is actually really overwhelming that the president did nothing wrong. Mr. Schiff and his colleagues repeatedly told you that the intelligence community assessment that Russia was acting alone, responsible for the election interference, implying that this somehow debunked the idea that there might be interference from other countries including Ukraine.

Jay Sekulow: (07:58)
Mr. Nadler deployed a similar argument saying that President Trump thought, “Ukraine, not Russia, interfered in our last presidential election.” And this is basically what we call a straw man argument. Let me be clear. The house managers in over 23 hour period kept pushing this false dichotomy that it was either Russia or Ukraine, but not both. They kept telling you the conclusion of the intelligence community, and Mr. Mueller was Russia alone with regard to the 2016 elections. Of course, the report that Bob Mueller wrote focused on Russian interference, although there is some information in letters regarding Ukraine, and I’m going to point to those in a few moments.

Jay Sekulow: (08:52)
In fact, let me report. I think I’ll talk about those letters right now. This is a letter dated May 4th, 2018 to Mr. Yuriy Lutsenko, the general prosecutor for the Office of the Prosecutor General of Ukraine. It was a letter requesting that his office cooperate with the Mueller investigation involving Ukrainian issues and issues involving Ukraine government or law enforcement officials. It’s signed by Senator Menendez, Senator Leahy, and Senator Durbin. I’m doing this to put this in an entire perspective. House managers tried to tell you that the importance … Remember the whole discussion, and my colleague, Mr. [inaudible 00:09:50] talked about this, between President Zelensky and President Trump and the bilateral meeting in the Oval Office of the White House. As if an article of impeachment-

Jay Sekulow: (10:03)
As if an article of impeachment could be based upon a meeting not taking place in the White House, but taking place someplace else, like the United Nations General Assembly, where it in fact did take place. Now, Dr. Fiona Hill was quite clear in saying that a White House meeting would supply the new Ukrainian government with the, ” Legitimacy it needed, especially vis-a-vis the Russians and that Ukrainians viewed the White House meeting is a recognition of their legitimacy as a sovereign state.”

Jay Sekulow: (10:42)
But here’s what they did not play. Here’s what they did not tell you. And I’m going to quote from Dr. Hill’s testimony on page 145 of her transcript. These are her words. This is what she said under oath. “It wasn’t always a White House meeting per se, but definitely a presidential level meeting. You know, a meeting with Zelinsky 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.” That can be found on page 145. And contrary to what manager Schiff and some of the other managers told you is this meaning did in fact occur. It occurred at the UN General Assembly on September 25th, 2019. Those were the words of Dr. Hill that you did not hear. This case is really not about presidential wrongdoing, this entire impeachment process is about the house manager’s insistence that they are able to read everybody’s thoughts. They can read everybody’s intention, even when the principal speakers, the witnesses themselves insist that those interpretations are wrong.

Jay Sekulow: (12:21)
Manager Schiff, Managers Garcia and Demings, relied heavily on selected clips from Ambassador Sondland’s testimony. I am not going to replay those. My colleague, Mr. Purpura, played those for you. It’s clear. We’re not going to play the same clips seven times. He said it. You saw it. That’s the evidence. Ms. Lofgren said that numerous witness testified, and this is a quote, “That they were not provided with any reason for why the hold was lifted on September 11th,” again suggesting that the President’s reason for the hold Ukrainian corruption and burden sharing were somehow created after the fact, but again, as my colleague just showed you, burden sharing was raised in the transcript itself.

Jay Sekulow: (13:25)
Mr. Schiff stated here that just like the implementation of the hold, President Trump provided no reason for the release. This also is wrong. In their testimony, Ambassadors Volker and Sondland said that the President raised his concerns about Ukrainian corruption in the May 23rd, 2019 meeting with the Ukraine delegation. Deputy Defense Secretary Laura Cooper testified that she received an email in June of 2019 listing followups from a meeting between the Secretary of Defense Chief of Staff and the President relating specifically to Ukrainian security assistance, including asking about what other countries are contributing. Burden sharing, that could be found in Laura Cooper’s deposition, pages 33 and 34. The president mentioned both corruption and burden sharing to Senator Johnson, as you already heard. It’s also important to note that as Ambassador David Hale testified that foreign aid generally was undergoing a review in 2019. From page 84 of his November 6th, 2019 testimony. He said, “The administration did not want to take a sort of business as usual approach to foreign assistance. A feeling that once a country has received a certain assistance package, it’s something that continues forever.” Didn’t talk about that in the 23 hour presentation. Dr. Fiona Hill confirmed this review and testified on November 21st, 2019, I’m going again quote from page 75 of her testimony. That quote, “There had been a directive for wholesale, a whole scale review of our foreign policy, foreign policy assistance and the ties between our foreign policy objectives and that assistance. This had been going on actually for many months.”

Jay Sekulow: (15:49)
So multiple witnesses testified that the President had longstanding concerns and specific concerns about Ukraine. The house managers understandably, ignore the testimony that took place before their own committees. In her testimony of October 14th, 2019, Dr. Hill testified at pages 118 and 119 of her transcript that she thinks the President has actually quite publicly said that he was very skeptical about corruption in Ukraine. And then she said again in her testimony, “And in fact he’s not alone, because everyone, because everyone has expressed great concerns about corruption in Ukraine.”

Jay Sekulow: (16:47)
Similarly, Ambassador Yovanovitch testified that they all had concerns about corruption in Ukraine and as noted on pages 142 of her deposition transcript. When asked what she knew about the President’s deep rooted skepticism about Ukraine’s business environment, she answered that President Trump delivered an anti-corruption message to former Ukrainian President Poroshenko in their first meeting in the White House on June 20th, 2017. NSC Senior Director Morrison confirmed on November 19th, 2019 at page 63 in his testimony transcript that this was during the Volker-Morrison public hearing that he was aware that the President thought Ukraine had a corruption problem, his words again, and he continued, as did many others familiar with Ukraine.

Jay Sekulow: (17:48)
And according to her October 30th, 2019 testimony, the Special Advisor for Ukraine negotiations at the State Department, Catherine Croft, also heard the President raised the issue of corruption directly with then President Poroshenko of Ukraine during a bilateral meeting at the United Nations General Assembly. This time in September of 2017. Special Advisor Croft testified she also understood the President’s concerns that quote, “Ukraine is corrupt because she has been,” this is her words, “Tasked to write a paper to help then NSA Head McMaster’s, General McMaster, make the case to the President in connection with prior, prior security assistance.”

Jay Sekulow: (18:44)
These concerns were entirely justified. When asked, and I’m again, a quote from Dr. Hill’s, October 14th, 229 hearing transcript. Certainly, these are her words, “Eliminating corruption in Ukraine was one of, if the central goals of a foreign policy.” Now, does anybody think that one election of one president that ran on a reform platform, who finally gets a majority in their legislative body, that corruption in Ukraine just evaporates? That’s like looking at this and it goes back to the Mueller report. You can’t look at these issues in a vacuum.

Jay Sekulow: (19:38)
Virtually every witness agreed that confronting corruption would be at the forefront of US policy. Now, I think there’s some other things we have to understand about timing. This again, is according to the testimony of Tim Morrison, his testimony, and this is when President Zelensky was first-

Jay Sekulow: (20:03)
This testimony, and this is when President Zelensky was first elected. There was real, these are his words, concern about whether he would be a genuine reformer and whether he would generally try to root out corruption. It was also at this time, this was before the election, unclear whether President Zelensky’s party would actually be able to get a workable majority. I think we’re all glad that they did. To say that that’s been tested or determined that corruption Ukraine has been removed, the anti-corruption court of Ukraine did not commence its work until September 5th of 2019, 121 days ago, four months ago.

Jay Sekulow: (20:54)
We’re acting as if there was a magic wand, that there was new elections and everything was now fine. I will not because we’re going to hear more about it, get into some of the meetings the vice president had. You’ll hear that in the days ahead.

Jay Sekulow: (21:21)
Manager Crowe said this, “What’s most interesting to me about this is that President Trump was only interested in Ukraine aid.” His words, nobody else. The US provides Aids to dozen of countries around the world, lots of partners and allies. He didn’t ask about any of them, just Ukraine.

Jay Sekulow: (21:43)
I appreciate your service to our country. I really do. I didn’t serve in the military and I appreciate that, but let’s get our facts straight. That is what Manager Crow said. Here’s what actually happened. President Trump has placed holds on aid a number of times. We just take basic due diligence to figure this out.

Jay Sekulow: (22:12)
In September 2019 the administration announced that it was withholding over $100 million in aid to Afghanistan over concerns about government corruption. In August 2019 President Trump announced that the administration and Seoul were in talks to substantially increase South Korea’s share, burden sharing, of the expenses of US military aid support for South Korea. In June, President Trump cut or paused over $550 million in foreign aid to El Salvador, Honduras, and Guatemala because those countries were not barely sharing the burdens of preventing mass migration to the United States.

Jay Sekulow: (22:54)
In June, the administration temporarily paused $105 million in aid to Lebanon. The administration lifted that hold in December with one official explaining that the administration continually reviews and thoroughly evaluates the effectiveness of all United States foreign assistance to ensure that funds go towards activities that further US foreign policy and also further our national security interest, like any administration would. In September 2018 the administration canceled the $300 million in military aid to Pakistan because it was not meeting its counter terrorism obligations. You didn’t hear about any of that from my democratic colleagues, the house managers. None of that was discussed.

Jay Sekulow: (23:57)
Under Secretary Hale, again, his transcript, said that “aid has been withheld from several countries across the globe for various reasons”. Dr. Hill similarly explained that there was a freeze put on all kinds of aid. Also freeze was put on assistance because it was in the process at the time of an awful lot of reviews going on on foreign assistance. That’s the Hill deposition transcript. She added, this was one of the star witnesses for the managers, she added this again not played, that in her experience, stops and starts are sometimes common with foreign assistance and that the office of management and budget holds up dollars all the time, including the past for dollars going to Ukraine in the past. Similarly, Ambassador Volker affirmed that aid gets held up from time to time for a whole assortment of reasons.

Jay Sekulow: (24:54)
Manager Crowe told you that the president’s Ukraine policy was not strong against Russia, noting that we help our partner fight Russia over there so we don’t have to fight Russia here, our friends on the front lines and trenches and with sneakers. This was following the Russians invasion of Ukraine in 2014. The United States has stood by Ukraine. Those are your words.

Jay Sekulow: (25:15)
While it’s true that the United States has stood by Ukraine since the invasion of 2014, only one president since then took a very concrete step. Some of you supported it and that step included actually providing Ukraine with legal lethal weapons, including javelin missiles. That’s what President Trump did. Some of you in this very room, some of you managers actually supported that.

Jay Sekulow: (25:44)
Here’s what Ambassador Taylor said that you didn’t hear in the 23 hours. You didn’t hear this. Javelin missiles are serious weapons. They will kill Russian tanks. Ambassador Yovanovitch agreed stating that Ukraine policy under President Trump, president Trump actually got stronger, stronger than it was under President Obama.

Jay Sekulow: (26:14)
There was talks about sanctions. President Trump has also imposed heavy sanctions on Russia for President Zelensky thanked him. The United States has imposed heavy sanctions on Russia. President Zelensky thanked him.

Jay Sekulow: (26:37)
Manager Jeffrey said that the idea that Trump cares about corruption is laughable. This is what Dr. Hill said. They didn’t play this. “Eliminating corruption in Ukraine was one of, if not the central goal, of US foreign policy in Ukraine.” Let me say that again. Dr. Hill testified that eliminating corruption in Ukraine was one of, if not the central goal, of US foreign policy in Ukraine. You’re taking notes. You can find that at the Hill deposition transcript, 34 colon seven through 13.

Jay Sekulow: (27:16)
Dr. Hill also said that she thinks the president is actually quite publicly said that he was very skeptical about corruption in Ukraine. In fact, he’s not alone. She said this as well. Everyone has expressed again great concerns about corruption. Ambassador Yovanovitch, they didn’t play this. She also said, “We all had concerns.”

Jay Sekulow: (27:39)
National Security Director Morrison confirmed that “he was aware that the president thought Ukraine had a corruption problem as did many other people familiar with it”. I am not going to continue to go over and over and over again. The evidence that they did not put before you, because we would be here for a lot longer than 24 hours. But to say that the president of the United States was not concerned about burden sharing, that he was not concerned about corruption in Ukraine, the facts from their hearing, the facts from their hearing establish exactly the opposite. The president wasn’t concerned about burden sharing, read all of the records.

Jay Sekulow: (28:50)
And then there was Mr. Ship saying yesterday maybe we can learn a lot more from our Ukrainian ally. Let me read you what our Ukrainian ally said. President Zelensky, when asked about these allegations of quid pro quo, he said, “I think you read everything. I think you read the text.” He says, “We had a good phone call.” These are his words. “It was normal. We spoke about many things. I think, and you read it that nobody pushed me.” They think you can read minds. I think you look at the words.

Patrick Philbin Opening Argument

Patrick Philbin: (00:00)
Mr. Chief Justice, Senators, Majority Leader McConnell, Democratic Leader Schumer. Good morning. As Mr. Sekulow said, I’m going to touch on a couple of issues related to obstruction and due process just to hit on some points before we go into more detail in the rest of our presentation.

Patrick Philbin: (00:26)
I’d like to start with one of the points that manager Jeffries focused a lot on towards the end of the presentation yesterday related to the obstruction charge in the second article of impeachment. Because he tried to portray a picture of what he called “blanket defiance” that there was a response from the Trump administration that was simply we won’t cooperate with anything. We won’t give you any documents, we won’t do anything, and it was blanket defiance really without explanation, that that was all there was, was just an assertion that we wouldn’t cooperate. He said, and I pulled this from the transcript, that “President Trump’s objections are not generally rooted in the law and are not legal arguments.” And that’s simply not true. That’s simply not true. In every instance, when there was resistance to a subpoena, resistance to a subpoena for a witness or for documents, there was a legal explanation of the justification for it.

Patrick Philbin: (01:25)
For example, they focused a lot on an October 8th letter from the council to the President, Pat Cipollone, but they didn’t show you an October 18th letter, which is up on the screen now, that went through in detail why subpoenas that had been issued by Manager Schiff’s committees were invalid because the House has not authorized your committees to conduct any such inquiry or to subpoena information in furtherance of it. That was because the House had not taken a vote to authorize the committee to exercise the power of impeachment to issue any compulsory process. I’m going to get into that issue in just a moment.

Patrick Philbin: (02:09)
Not only was there a legal explanation, a specific reason for every resistance, not just blanket defiance, Every step that the administration took was supported by an opinion from the Department of Justice from the Office of Legal Counsel and those are explained in our brief. The major opinion from the Office of Legal Counsel is actually attached in our trial memorandum as an appendix. Now, Mr. Jeffries and other managers also suggested that the Trump administration took the approach of no negotiation, blanket refusal, and no attempt to accommodate.

Patrick Philbin: (02:49)
That’s also not true. In the October 8th letter that Mr. Cipollone sent to Speaker Pelosi and said explicitly quote, “If the committee’s wish to return to the regular order of oversight requests, we stand ready to engage in that process as we have in the past in a manner consistent with well-established bi-partisan constitutional protections and a respect for the separation of powers enshrined in the constitution.” It was Manager Schiff and his committees that did not want to engage in any accommodation process.

Patrick Philbin: (03:28)
We had said that we were willing to explore that. The House managers have also asserted a number of times, this came up on that first long night when we were here until 2:00 as well, that the Trump administration never asserted executive privilege. Never asserted executive privilege. I explained at the time that’s technically true but misleading. Misleading because the rationale on which the subpoenas were resisted never depended on an assertion of executive privilege. Each of the rationales that we have offered, and I’ll go into one of them today, how subpoenas were not authorized, does not depend on making that formal assertion of executive privilege. It’s a different legal rationale. The subpoenas weren’t authorized because there was no vote, or the subpoenas were to senior advisors to the president who are immune from congressional compulsion, or the subpoenas were forcing executive branch officials to testify without the presence of agency counsel, which is a separate legal infirmity. Again, supported by an opinion from the Office of Legal Counsel at the Department of Justice.

Patrick Philbin: (04:40)
But let me turn to the specific issue of the invalidity of the subpoenas because they weren’t supported by a vote of the House authorizing Manager Schiff’s committees to exercise the power of impeachment to issue compulsory process. Manager Jeffries said that there were no Supreme Court precedents suggesting such a requirement and that every investigation into a presidential impeachment in history has begun without a vote from the House, and those statements simply aren’t accurate. There is Supreme Court precedent explaining very clearly the principle that a committee of either House of Congress gets its authority only by a resolution from the parent body. United States versus Rumely and Watkins versus the United States make this very clear. It’s common sense. The Constitution assigns the sole power of impeachment to the House of Representatives. To the House, not to any member, not to a subcommittee. That authority can be delegated to a committee to use only by a vote of the House. It would be the same here in the Senate. The Senate has the sole power to try impeachment.

Patrick Philbin: (06:08)
But if there were no rules that had been adopted by the Senate, would you think that the majority leader himself could simply decide that he would have a committee receive evidence, handle that, submit a recommendation to the Senate, and that would be the way that the trial would occur without a vote from the Senate to give authority to that committee? I don’t think so. It doesn’t make sense. That’s not the way the Constitution assigns that authority. It’s the same in the House. Here there was no vote to authorize a committee to exercise the power of impeachment. This law has been boiled down by the DC Circuit in Exxon Corp versus FTC to explain it this way. To issue a valid subpoena, a committee or subcommittee must conform strictly to the resolution establishing its investigatory powers. There must be a resolution voted on by the parent body to give the committee that power.

Patrick Philbin: (07:11)
The problem here is there is no standing rule. There was no standing authority giving Manager Schiff’s committee the authority to use the power of impeachment to issue compulsory process. Rule 10 of the House discusses legislative authority. It doesn’t mention impeachment. That is why in every presidential impeachment in history, the House has initiated the inquiry by voting to give a committee the authority to pursue that inquiry. Contrary to what Manager Jeffries suggested, there has always been in every presidential impeachment inquiry, a vote from the full House to authorize a committee, and that is the only way the inquiry begins. There were three different votes for the impeachment of president Andrew Johnson in January 1867, in March 1867, and in February 1868. For President Nixon, Chairman Rodino of the House Judiciary Committee explained there was a move to have him issue subpoenas after the Saturday night massacre. They determined that they did not have that authority in the House Judiciary Committee without a vote from the house. He determined as he explained that a resolution has always been passed by the House. It is a necessary step if we are to meet our obligations.

Patrick Philbin: (08:47)
There’s been reference to investigatory activities starting in the House Judiciary Committee in the Nixon impeachment prior to the vote from the House. But all the committee was doing was assembling publicly available information and information that had been gathered by other congressional committees. There was never an attempt to issue compulsory process until there had been a vote by the House to give the House Judiciary Committee that authority.

Patrick Philbin: (09:16)
Similarly in the Clinton impeachment, there were two votes from the full House to give the House Judiciary Committee authority to proceed. First a vote on a resolution, five to five, just to allow the committee to examine the independent council report and determine and make recommendations on how to proceed. Then a separate resolution, House resolution 581, that gave the House Judiciary Committee subpoena authority. At the time in a house report, the House Judiciary Committee explained, I’m quoting, “Because the issue of impeachment is of such overwhelming importance, the committee decided that it must receive authorization from the full House before proceeding on any further course of action. Because impeachment is delegated solely to the House of Representatives by the Constitution, the full House of Representatives should be involved in critical decision making regarding various stages of impeachment.” Here the House Democrats skipped over that step completely. What they had instead was simply a press conference from Speaker Pelosi announcing that she was directing committees to proceed with an impeachment inquiry against the President of the United States. Speaker Pelosi didn’t have the authority to delegate the power of the House to those committees on her own.

Patrick Philbin: (10:45)
So why does it matter? It matters because the Constitution places that authority in the House and ensures that there is a democratic check on the exercise of that authority, that there will have to be a vote by the full House before there can be a proceeding to start inquiring into impeaching the President of the United States. One of the things that the framers were most concerned about in impeachment was the potential for a partisan impeachment. A partisan impeachment that was being pushed merely by a faction. A way to ensure a check on that is to require democratic accountability from the full House to have a vote from the entire house before an inquiry can proceed. That didn’t happen here. It was only after five weeks of hearings that the House decided to have a vote.

Patrick Philbin: (11:43)
What that meant at the outset was that all of the subpoenas that were issued under the Supreme Court cases I discussed, all of those subpoenas were invalid and that is what the Trump administration pointed out specifically to the House. That was the reason for not responding to them because under long settled precedent, there had to be a vote from the House to give authority, and the administration would not respond to subpoenas that were invalid.

Patrick Philbin: (12:14)
Now the next point I’d like to touch on briefly has to do with due process. Because we’ve heard from the House Managers that they offered the president due process at the House Judiciary Committee and Manager Nadler described it as he sent the president a letter, the president’s counsel a letter, offering to allow the president to participate. The president’s council just refused as if that was the only exchange and there was just a blanket refusal to participate. But let me explain what actually happened. I should note before I get into those details, there was a suggestion also that due process is not required in the House proceeding, that it’s simply a privilege. But that wasn’t the position that Manager Nadler has taken in the past. In 2016 he said, “The power of impeachment is a song responsibility assigned to the House by the Constitution and to this committee by our peers. That responsibility demands a rigorous level of due process.”

Patrick Philbin: (13:30)
In the Clinton impeachment in 1998, he explained, “What does due process mean? It means among other things, the right to confront the witnesses against you, to call your own witnesses and to have the assistance of counsel.” Now I think we all know that all of those rights were denied to the president in the first two rounds of hearings, the first round of secret hearings in the basement bunker where Manager Schiff had three committees holding hearings. Then in a round of public hearings to take the testimony that had been screened in the basement bunker and have it in a public televised setting, which was totally unprecedented in any presidential impeachment inquiry in both the Clinton and the Nixon inquiries. For every public hearing, the president was allowed to be present by counsel and cross examine witnesses. But the House managers say that’s all right because when we got to the third round of hearings, after people had testified twice, then we were going to allow the president to have some due process.

Patrick Philbin: (14:38)
But the way that played out was this. First, they scheduled a hearing for December 4th that was going to hear solely from law professors. By time they wanted the president to commit whether he would participate, it was unclear. They couldn’t specify how many law professors or who the law professors were going to be. The president’s council wrote back and declined to participate in that. But at the same time, Manager Nadler had asked what other rights under the House resolution 660, the rules governing the the house inquiry, the president would like to exercise. The president’s council wrote back asking specific questions in order to be able to make an informed decision and asked whether you intend to allow fact witnesses to be called including the witnesses who had been requested by HPSCI ranking member Nunes. Whether you intend to allow members of the judiciary committee and the president’s counsel the right to cross examine fact witnesses and whether your Republican colleagues on the judiciary committee will be allowed to call witnesses of their choosing.

Patrick Philbin: (15:51)
Manager Nadler didn’t respond to that letter. There wasn’t information provided. We had discussions with the staff on the judiciary committee to try to find out what were the plans, what were the hearings going to be like? The way that we played out. On December 4th, there was the hearing with the law professors, the first hearing before the judiciary committee. On December 5th, the morning of December 5th, Speaker Pelosi announced the conclusion of the entire judiciary committee process because she announced that she was directing Chairman Nadler to draft articles of impeachment. So the conclusion of the whole process was already set. Then after the close of business on the fifth, we learned from the staff that the committee had no plans other than a hearing on December 9th to hear from staffers who had prepared HPSCI committee reports. They had no plans to have other hearings, no plans to hear from fact witnesses, no plans to do any factual investigation.

Patrick Philbin: (17:05)
The president was given a choice of participating in a process that was going to already have the outcome determined, the speaker had already said articles of impeachment going to be drafted, and where there were no plans to hear from any fact witnesses. That’s not due process. That’s why the president declined to participate in that process because the judiciary committee had already decided they are going to accept an ex parte record developed in Manager Schiff’s process, and there was no point in participating in that. The idea that there was due process offered to the president is simply not accurate.

Patrick Philbin: (17:58)
The entire proceedings in the House from the time of the September 4th press conference until the judiciary committee began marking up articles of impeachment on December 11th lasted 78 days. It’s the fastest investigatory process for a presidential impeachment in history. For the 71 days or that process, for 71 days of the hearings and the taking of deposition and hearing testimony, the president was completely locked out. He couldn’t be represented by counsel. He couldn’t cross examine witnesses. He couldn’t present evidence. He couldn’t present witnesses for 71 of the 78 days. That’s not due process.

Patrick Philbin: (18:46)
It goes to a point that Mr. Cipollone raised earlier. Why would you have a process like that? What does that tell you about the process? As we’ve pointed out a couple of times, cross-examination in our legal system is regarded as the greatest legal engine ever invented for the discovery of truth. It’s essential. The Supreme Court has said in Goldberg versus Kelly for any determination that’s important that requires determining facts, cross-examination has been one of the keys for due process. Why did they design a mechanism here where the president was locked out and denied the ability to cross examine witnesses? Because they weren’t really interested in getting at the facts and the truth. They had a timetable to meet. They wanted to have impeachment done by Christmas, and that’s what they were striving to do.

Patrick Philbin: (19:52)
Now as a slight shift in gears, I want to touch on one last point before I yield to one of my colleagues. That relates to the whistleblower. The whistleblower who we haven’t heard that much about who started all of this. The whistleblower we know from the letter that the Inspector General of the Intelligence Community sent that he thought that the whistleblower had political bias. We don’t know exactly what the political bias was because the Inspector General testified in the House committees in an executive session, and that transcript is still secret. It wasn’t transmitted up to the House Judiciary Committee. We haven’t seen it. We don’t know what’s in it. We don’t know what he was asked and what he revealed about the whistleblower. Now you would think that before going forward with an impeachment proceeding against the President of the United States that you would want to find out something about the complainant that had started all of it because motivations, bias, reasons for wanting to bring this complaint could be relevant, but there wasn’t any inquiry into that.

Patrick Philbin: (21:31)
Recent reports, public reports, suggest that potentially the whistle blower was an Intelligent Community staffer who worked with then Vice President Biden on Ukraine matters, which if true, would suggest an even greater reason for wanting to know about potential bias or motive for the whistleblower. At first when things started, it seemed like everyone agreed that we should hear from the whistleblower including Manager Schiff. I think we have what he said.

Manager Schiff: (22:13)
Yes, we would love to talk directly with the whistleblower.

Manager Schiff: (22:15)
We’ll get the unfiltered testimony of that whistleblower.

Manager Schiff: (22:18)
We don’t need the whistleblower.

Patrick Philbin: (22:22)
What changed? At first Manager Schiff agreed we should hear the unfiltered testimony from the whistleblower, but then he changed his mind and he suggested that it was because now we had the transcript. But the second clip there was from September 29th which was four days after the transcript had been released. But there was something else that came into play, and that was something that Manager Schiff had said earlier when he was asked about whether he had spoken to the whistleblower.

Manager Schiff: (23:01)
We have not spoken directly with the whistleblower. We would like to.

Patrick Philbin: (23:06)
It turned out that that statement was not truthful. Around October 2nd or 3rd, it was exposed that the Manager Schiff’s staff at least had spoken with the whistleblower before the whistleblower filed the complaint and potentially had given some guidance, some sort to the whistleblower. After that point it became critical to shut down any inquiry into the whistleblower. During the House hearings, of course Manager Schiff was in charge. He was chairing the hearings. That creates a real problem from a due process perspective, from a search for truth perspective, because he was an interested fact witness at that point. He had a reason, since he had been caught out saying something that wasn’t truthful about that contact, he had a reason to not want that inquiry. It was he who ensured that there wasn’t any inquiry into that.

Patrick Philbin: (24:21)
Now this is relevant here I think because as you’ve heard from my colleagues, a lot of what we’ve heard over the past 23 hours, over the past three days, has been from Chairman Schiff. He has been telling you things like what’s in President Trump’s head, what’s in President Zelensky’s head. It’s all his interpretation of the facts and the evidence trying to pull inferences out of things. There’s another statement that Chairman Schiff made that I think we have on video.

Chuck: (25:07)
But you admit all you have right now is a circumstantial case.

Manager Schiff: (25:10)
Actually, no Chuck. I can tell you that the case is more than that and I can’t go into the particulars, but there is more than circumstantial evidence now. Again, I think [inaudible 00:25:22]-

Chuck: (25:21)
So you have seen evidence of collusion.

Manager Schiff: (25:25)
I don’t want to go into specifics, but I will say that there is evidence that is not circumstantial and is very much worthy of investigation.

Patrick Philbin: (25:37)
That was in March of 2017 when Chairman Schiff was ranking member of HIPSY was telling the public, the American public, that he had more than circumstantial evidence through his position on HIPSY that President Trump’s campaign had colluded with Russia. Of course, the Mueller Report, as Mr. Sekulow pointed out, after $32 million and over 500 search warrants or roughly 500 search warrants, determined that there was no collusion. That that wasn’t true. We wanted to point these things out simply because for this reason. Chairman Schiff has made so much of the House’s case about the credibility of interpretations that the House Managers want to place on not hard evidence just but on inferences. They want to tell you what President Trump thought. They want to tell you don’t believe what Zelensky said. We can tell you what Zelensky actually thought. Don’t believe what the other Ukrainians actually said about not being pressured. We can tell you what they actually thought. That it is very relevant to know whether the assessments of evidence he’s presented in the past are accurate. We would submit that they have not been and that that is relevant for your consideration.

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