IMPEACHMENT TRIAL LIVE: White House legal team mounts Trump defense in Senate – 1/27/2020

THE PRESIDING OFFICER: THE SENATE WILL CONVENE AS A COURT EVER IMPEACHMENT. THE CHAPLAIN WILL LEAD US IN PRAYER. THE CHAPLAIN: LET US PRAY. LORD, THROUGH ALL THE GENERATIONS YOU HAVE BEEN OUR MIGHTY GOD. AS MILLIONS MOURN THE DEATHS OF KOBE AND GIANNA BRYANT AND THOSE WHO DIED WITH THEM, WE THINK ABOUT LIFE’S BREVITY, UNCERTAINTY, AND LEGACY. REMIND US THAT WE ALL HAVE A LIMITED TIME ON EARTH TO LEAVE THE WORLD BETTER THAN WE FOUND IT. AS THIS IMPEACHMENT PROCESS UNFOLDS, GIVE OUR SENATORS THE DESIRE TO MAKE THE MOST OF THEIR TIME ON EARTH TEACH THEM HOW TO LIVE, O GOD, AND LEAD THEM ALONG THE PATH OF HONESTY. MAY THEY HEAR THE WORDS OF JESUS OF NAZARETH REVERBERATING DOWN THE CORRIDORS OF THE CENTURIES. AND YOU SHALL KNOW THE TRUTH AND THE TRUTH SHALL MAKE YOU FREE. LORD, THANK YOU FOR GIVING OUR CHIEF JUSTICE ANOTHER BIRTHDAY. AMEN. THE PRESIDING OFFICER: PLEASE JOIN ME IN RECITING THE PLEDGE OF ALLEGIANCE TO THE FLAG. I PLEDGE ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA, AND TO THE REPUBLIC FOR WHICH IT STANDS, ONE NATION UNDER GOD, INDIVISIBLE, WITH LIBERTY AND JUSTICE FOR ALL. THE PRESIDING OFFICER: IF THERE IS NO OBJECTION, THE JOURNAL OF PROCEEDINGS OF THE TRIAL ARE APPROVED TO DATE. WITHOUT OBJECTION, SO ORDERED. THE SERGEANT AT ARMS WILL MAKE THE PROCLAMATION. THE SERGEANT AT ARMS: HEAR YE, HEAR YE, HEAR YE! ALL PERSONS ARE COMMANDED TO KEEP SILENT, ON PAIN OF IMPRISONMENT, WHILE THE SENATE OF THE UNITED STATES IS SITTING FOR THE TRIAL OF THE ARTICLES OF IMPEACHMENT EXHIBITED BY THE HOUSE OF REPRESENTATIVES AGAINST DONALD JOHN TRUMP, PRESIDENT OF THE UNITED STATES. MR. McCONNELL: MR. CHIEF JUSTICE.THE PRESIDING OFFICER:ED MAJORITY LEADER IS RECOGNIZED. MR. McCONNELL: ON BEHALF 6 ALL OF US, HAPPY BIRTHDAY. I’M SURE IT’S EXACTLY HOW YOU PLANNED TO CELEBRATE THE DAY. THE PRESIDING OFFICER: THANK YOU VERY MUCH FOR THOSE KIND WISHES. THANK YOU TO ALL THE SENATORS FOR NOT ASKING FOR THE YEAS AND NAYS. MR. McCONNELL: FOR THE INFORMATION OF ALL SENATOR, WE SHOULD EXPECT TO BREAK EVERY TWO OR THREE HOURS AND THEN AT 6:00, A BREAK FOR DINNER. AND WITH THAT, MR. CHIEF JUSTICE, I YIELD THE FLOOR. THE PRESIDING OFFICER: PURSUANT TO THE PROVISIONS OF SENATE RESOLUTION 483, THE COUNSEL FOR THE PRESIDENT HAVE 223 — 22 HOURS AND 5 MINUTES REMAINING TO MAKE THE PRESENTATION OF THEIR CASE. THE SENATE WILL NOW HEAR YOU. MR. SEKULOW. MR. SEKULOW: THANK YOU, MR. CHIEF JUSTICE. MEMBERS OF THE SENATE, MANAGERS, WHAT WE’VE DONE ON SATURDAY IS THE PATTERN THAT WE’RE GOING TO CONTINUE TODAY AS FAR AS HOW WE’RE GOING TO DEAL WITH THE CASE. WE DEAL WITH TRANSCRIPT EVIDENCE. WE DEAL WITH PUBLICLY AVAILABLE INFORMATION. WE DO NOT DEAL WITH SPECULATION, ALLEGATIONS THAT ARE NOT BASED ON EVIDENTIARY STANDARDS AT ALL. WE ARE GOING TO HIGHLIGHT SOME OF THOSE VERY FACTS WE TALKED ABOUT VERY QUICKLY.ON SATURDAY. YOU’RE GOING TO HEAR A LITTLE MORE ABOUT THAT LET GE MIGHT YOU AN VOAFER VIEW OF WHAT WE PLAN TO DO IN OUR PRESENTATION. YOU’LL HEAR FROM A NUMBER OF LAWYERS. EACH ONE OF THESE LAWYERS WILL BE ADDRESSING A PARTICULAR ASPECT OF THE PRESIDENT’S CASE. I WILL INTRODUCE THE ISSUES TAKE THEY’RE GOING TO DISCUSS AND THAT INDIVIDUAL LAWYER WILL COME UP AND MAKE THEIR PRESENTATION. WE WANT TO DO THIS ON AN EXPEDITIOUS YET THOROUGH BASIS. LET ME START WITH JUST FOR A VERY BRIEF FEW MOMENTS TO TAKE A LOOK AT WHERE WE WERE.ONE OF THE THINGS THAT BECAME VERY CLEAR TO US AS WE LOOKED AT THE PRESENTATION FROM THE HOUSE MANAGERS WAS THE LACK OF FOCUS ON THAT JULY 25 TRANSCRIPT. AND THAT’S BECAUSE THE TRANSCRIPT ACTUALLY DOESN’T SAY WHAT THEY WOULD LIKE IT TO SAY. NOW, WE’VE HEARD AND YOU WILL HEAR MORE ABOUT THAT IN THE DAYS AHEAD. WE KNOW ABOUT MR. SCHIFF’S VERSION OF THE TRANSCRIPT. YOU HEARD IT. YOU SAW IT. I WANT TO KEEP COMING BACK TO FACTS. FACTS THAT ARE REALLY UNDISPUTED. THE PRESIDENT IN HIS CONVERSATION WAS CLEAR ON A NUMBER OF POINTS. BUT SO WAS PRESIDENT ZELENSKY. I MENTIONED THAT AT THE CLOSE OF MY ARGUMENTS EARLIER THAT IT WAS PRESIDENT ZELENSKY THAT SAID NO PRESSURE. I DIDN’T FEEL ANY PRESSURE. AND AGAIN A KIND OF READING OF MINDS WHAT PEOPLE WERE SAYING.THINK WE NEED TO LOOK AT WHAT WAS ACTUALLY SAID AND HOW IT’S BACKED UP. IT IS OUR POSITION AS THE PRESIDENT’S COUNSEL THAT THE PRESIDENT WAS AT ALL TIMES ACTING UNDER HIS CONSTITUTIONAL AUTHORITY, UNDER HIS LEGAL AUTHORITY, INTERNATIONAL INTERESTS, AND PURSUANT TO HIS OATH OF OFFICE. ASKING A FOREIGN LEADER TO GET TO THE BOTTOM OF ISSUES OF CORRUPTION IS NOT A VIOLATION OF AN OATH. IT WAS INTERESTING BECAUSE THERE WAS A LOT OF DISCUSSION THE OTHER DAY ABOUT LIEUTENANT COLONEL VINDMAN AND ONE OF THE THINGS THAT WE REITERATE IS THAT HE HIMSELF SAID HE DID NOT KNOW IF THERE WAS ANYTHING OF A CRIME OR ANYTHING OF THAT NATURE.HE HAD DEEP POLICY CONCERNS. I THINK THAT IS WHAT THIS IS REALLY ABOUT IS DEEP POLICY CONCERNS, DEEP POLICY DIFFERENCES. BUT WE LIVE IN A CONSTITUTIONAL REPUBLIC WHERE YOU HAVE DEEP POLICY CONCERNS AND DEEP DIFFERENCES. THAT SHOULD NOT BE THE BASIS OF AN IMPEACHMENT. IF THE BAR OF IMPEACHMENT HAS NOW REACHED THAT LEVEL, THEN FOR THE SAKE OF THE REPUBLIC, THE DANGER THAT PUTS NOT JUST THIS BODY BUT OUR ENTIRE CONSTITUTIONAL FRAMEWORK IN IS UNMANAGEABLE. EVERY TIME THERE IS A POLICY DIFFERENCE OF SIGNIFICANCE OR AN APPROACH DIFFERENCE ABOUT A POLICY, WE’RE GOING TO START AN IMPEACHMENT PROCEEDING? AS I SAID EARLIER, I DON’T REALLY THINK THIS WAS ABOUT JUST A PHONE CALL. THERE WAS A PATTERN IN PRACTICE — AND PRACTICE OF ATTEMPTS OVER A THREE-YEAR PERIOD TO NOT ONLY INTERFERE WITH THE PRESIDENT’S CAPABILITY TO GOVERN, WHICH BY THE WAY THEY WERE COMPLETELY UNSUCCESSFUL AT.JUST LOOK AT THE STATE OF WHERE WE ARE AT A COUNTRY. BUT ALSO INTERFERE WITH OUR CONSTITUTIONAL FRAMEWORK. I’M GOING TO SAY THIS. BECAUSE I WANT TO BE BRIEF. WE ARE GOING TO HAVE A SERIES OF LAWYERS ADDRESS YOU. SO IT WILL NOT BE ONE LAWYER FOR HOURS AND HOURS. WE’LL HAVE A SERIES OF LAWYERS ADDRESS YOU ON A VARIETY OF ISSUES. THIS IS HOW WE ENVISION THE PRESIDENT’S DEFENSE GOING. WE THOUGHT IT WOULD BE APPROPRIATE TO START WITH AN OVERVIEW, IF YOU WILL, OF SOME OF THE SIGNIFICANT HISTORICAL ISSUES AND CONSTITUTIONAL ISSUES INVOLVING IMPEACHMENT PROCEDURES SINCE WE DON’T HAVE A LONG HISTORY OF THAT AND I THINK IT’S GOOD FOR THE COUNTRY THAT WE DON’T.AND I THINK WE WOULD ALL AGREE. BUT IF THIS BECOMES THE NEW STANDARD, THE FUTURE IS GOING TO LOOK A LOT DIFFERENT. SO WE’RE GOING TO HEAR NEXT FROM MY COCOUNSEL JUDGE KENNETH STARR. JUDGE STARR IS A FORMER JUDGE FOR THE U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. HE SERVED AS THE 39th SOLICITOR GENERAL OF THE UNITED STATES ARGUING CASES BEFORE THE SUPREME COURT OF THE UNITED STATES ON BEHALF OF THE UNITED STATES. I HAD THE PRIVILEGE OF ARGUING A CASE ALONGSIDE JUDGE STARR — WE WERE TALKING ABOUT EARLIER — MANY YEARS AGO. HE ALSO SERVED AS THE INDEPENDENT COUNSEL DURING THE CLINTON PRESIDENCY AND OFFERED THE STARR REPORT. HE TESTIFIED FOR ALMOST 12 HOURS BEFORE THE JUDICIARY COMMITTEE WITH REGARD TO THAT REPORT.JUDGE STARR IS VERY FAMILIAR WITH THIS PROCESS. HE IS GOING TO ADDRESS A SERIES OF DEFICIENCIES ON LEGAL ISSUES WITH REGARD TO ARTICLES 1 AND 2. CONSTITUTIONAL IMPLICATIONS, HISTORICAL IMPLICATIONS, AND LEGAL IMPLICATIONS OF WHERE THIS CASE NOW STANDS. SO I WOULD LIKE TO YIELD MY TIME RIGHT NOW TO, IF IT WOULD PLEASE THE CHIEF JUSTICE, KEN STARR. THE PRESIDING OFFICER: MR. STARR. MR. STARR: 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 OATH OR AFFIRMATION. THAT OATH OR AFFIRMATION IN TURN REQUIRES EACH MEMBER OF THE SENATE TO DO IMPARTIAL JUSTICE. 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 DID, TO SIGN THE BOOK, AND 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. 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. AND 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. SO WE’RE NOT A LEGISLATIVE CHAMBER DURING THESE PROCEEDINGS. WE’RE IN A TRIBUNAL. WE’RE IN COURT. IN FEDERALIST 78, ALEXANDER HAMILTON, WHO HAS BEEN QUOTED FREQUENTLY IN THESE PROCEEDINGS, BUT IN FEDERALIST 78, HE WAS DESCRIBING THE ROLE OF COURTS. YOUR ROLE. AND 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. AND YOU KNOW, 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.AND 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. 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, IN ITS 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 COUNSELS. IT BECAME, UNBEKNOWNST TO THE AMERICAN PEOPLE, THE AGE OF IMPEACHMENT.DURING MY SERVICE IN THE REAGAN ADMINISTRATION AS COUNSEL 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, JUSTICE DEPARTMENT 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, AND A VERY IMPRESSIVE OPINION BY RENOWNED JUDGE LAWRENCE SILBERMAN. 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. BUT THE WORD IMPEACHMENT HAUNTS THAT DISSENTING OPINION, AND 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. AND 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 NUSSEBAUM, THIS STATUTE IS A DAGGER AIMED AT THE HEART OF THE PRESIDENCY. PRESIDENT CLINTON, NONETHELESS, SIGNED THE REAUTHORIZED MEASURE INTO LAW, AND 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 STIPULATEED IN THE ETHICS AND 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. 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 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. AND 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 THE WELL-INTENTIONED REFORM MEASURE DIED A QUIET AND UNEVENTFUL DEATH, AND 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 SEEMED TO SIGNAL A RETURN TO TRADITIONAL NORMS. IMPEACHMENT WOULD NO LONGER BE EMBEDDED IN THE ACTUAL LAWS OF THE LANDS BUT RETURNED TO THE LANGUAGE OF THE CONSTITUTION.BUT IN THE MEANTIME, AMERICA’S CONSTITUTIONAL D.N.A. 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. IRONICALLY, WHILE THIS WAS HAPPENING HERE AT HOME, ACROSS THE ATLANTIC, THE USE OF IMPEACHMENT AS A WEAPON DISAPPEARED. AND 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 PARLIAMENT 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 PROARLS STANDARDS OF FAIRNESS — 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. 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. 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 AN THE ALIENIST SEDITION ACTS. THINK OF ANDREW JACKSON AND HENRY CLAY, WHERE PARTISAN — WERE PARTISAN PASSIONS OCCASIONALLY INFLAMED DURING THAT FIRST CENTURY IN OF COURSE.AND LEST THERE BE ANY DOUBT, THE RECALLLY CONGRESSES FULL WELL KNEW HOW TO SUMMON AN 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 RETAINING 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. 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 410-4, THE HOUSE OF REPRESENTATIVES AUTHORIZED AN IMPEACHMENT INQUIRY. AND 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 REELECTION 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, AND 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 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 CLUE THE CLINTON IMPEACHMENT UNDERSTAND THAT IN A DEEP AND PERSONAL WAY. NOW, IN CONTRAST, WISELY AND JUDICIARILY 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. AND IN PRACTICAL EFFECT, LIFE TENURE. IMPEACHMENT IS A PROTECTION FOR WE THE PEOPLE AGAINST WHAT COULD BE SERIOUS ARTICLE 3 WRONGDOING WITHIN THAT BRANCH. AND SO IT IS THAT WHEN YOU COUNT, OF THE 63 IMPEACHMENT INQUIRIES AUTHORIZED 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. 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 THIS 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? SO ITS TURNED TO THE TEXT. 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 BLUDGEON IN PARLIAMENTARY EXPERIENCES TO LEAD THE FOUNDERS TO ACTUALLY DEFINE THE TERM IN THE CONSTITUTION ITSELF. BRIBERY — AN AN ANICK QUI IT IS FORM OF CORRUPTION AND THE BASIS OF SO MANY OF THE 43 IMPEACHMENT PROCEEDINGS OVER THE COARSE OF OUR HISTORY. AGAIN, ALMOST ALL OF THEM AGAINST JUDGES. 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, FOR 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. 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 — 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. 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 WILL GO TO THE POLLS. IN 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.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, CHARGED CRIMES. THESE ARE CRIMES PROVEN IN 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 IN NIXON, WHICH IS SOMETIMES REFERRED TO AS ABUSE OF POWER? WAS THAT THE ABUSE OF POWER, THE PRECURSOR TO ARTICLE 1 THAT IS BEFORE THIS COURT? NOT AT ALL. WHEN ONE RETURNS TO ARTICLE 2 IN NIXON, APPROVED BY A BIPARTISAN HOUSE JUDICIARY, ARTICLE 2 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, TO YOUR INDIVIDUAL JUDGMENT. EVEN IN THE POLITICAL CALDRON 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 WARNED EXPRESSLY THE OVAL OFFICE THAT ITS VIOLATION WOULD CONSTITUTE A HIGH MISDEMEANOR, EMPLOYING THE VERY LANGUAGE OF CONSTITUTIONALLYCOGNIZABLE 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. 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 A HISTORICALLY SUPPORTABLE PRESIDENTIAL IMPEACHMENT. 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 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 A CONSTITUTIONAL TEXT AND THEN LOOKING FAITHFULLY AND RESPECTFULLY TO OUR HISTORY.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 ITS EXTERNAL RELATIONS. AND ITS 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. THERE IS 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 AND UPCOMING ELECTION, IN THE WORDS OF YEAL’S — YALE’S AKEEL AMAR — AND THESE ARE HIS PORDS — PRFERS MARS’ WORD, GRAVE DISRUPTION OF THE GOVERNMENT.PROFESSOR MAR PENNED THOSE WORDS IN 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 IMPEACHMENT, THAT’S CALLED A LANDSLIDE. 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 RADINO PRINCIPLE, CALL IT THE RADINO RULE. IMPEACHMENT MUST BE BIPARTISAN IN NATURE. AGAIN SITTING AS A COURT, THIS BODY SHOULD SIGNAL TO THE NATION THE RETURN TO OUR TRADITIONS, BIPARTISAN IMPEACHMENTS. WHAT’S THE ALTERNATIVE? WILL THE PRESIDENT BE KING? DO OVERSIGHT. THE TRADITION OF OVERSIGHT. AN ENORMOUS CHECK ON PRESIDENTIAL POWER THROUGHOUT OUR HISTORY AND IT CONTINUES AVAILABLE TODAY. 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 A LEADING LAW PROFESSOR WHOSE NAME YOU WOULD WELL RECOGNIZE AS 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 RADINO SAID NO. SO I RESPECTFULLY SUBMIT THAT THE SENATE SHOULD CLOSE THIS CHAPTER, THIS ID SACRATIC CHAPTER ON THIS DISRUPTIVE ACT, THIS AGE OF RESORT TO THE CONSTITUTION’S ULTIMATE DEMOCRATIC WEAPON FOR THE PRESIDENCY. LET THE PEOPLE DECIDE. THERE IS A GREAT JUSTICE WHO SAT FOR 30 YEARS, JUSTICE JOHN HARLIN, THE MID-CENTURY OF THE 20th CENTURY. AND IN A LAWSUIT INVOLVING A VERY BASIC QUESTION A CITIZEN’S 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 HARLIN IN A MAGNIFICENT OPINION IN BIVONS 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, 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 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 RESTRAIN, AND HE ADDRESSED HIM. 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 BIVONS FAMILY HAVING REDRESS AGAINST THE FEDERAL AGENTS WHO HAD VIOLATED THEIR RIGHTS.JUDGING IN ITS MOST IMPARTIAL ELEGANCE SENSE. I’M GOING TO DRAW FROM JUSTICE HARLAN’S MATRIX OF FACTORS OF RESTRAINT AND SIMPLY IDENTIFY THESE. I THINK THERE MAY BE OTHERS. THE ARTICLES DO NOT CHARGE A CRIME FOR 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 RODINO RULE. AND THIRD AS 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 V. NIXON. ITS UNANIMITY IN RECOGNIZING THE PRESIDENT’S PROFOUND INTEREST IN CONFIDENTIALITY, REGARDLESS OF THE WORLD VIEW OR PHILOSOPHY OF THE JUSTICE, THE JUSTICES WERE UNANIMOUS. THIS ISN’T JUST A CONTRIVEANCE.IT’S BUILT INTO 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’D 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 IN THE 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. GO TO COURT. WE’VE HEARD CONCERNS ABOUT THE LENGTH OF TIME THAT THE LITIGATION MIGHT TAKE. THOSE OF US WHO HAVE 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 15, 1971. THAT ORDER WAS REVERSED IN AN OPINION BY THE SUPREME COURT OF THE UNITED STATES TWO WEEKS LATER.JUNE 15. THE HOUSE OF REPRESENTATIVES COULD HAVE FOLLOWED THAT WELL-TRODDEN PATH. IT COULD HAVE SOUGHT EXPEDITION. THE 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 THE HOUSE RESOLUTION 660 WHICH FOR THE FIRST TIME AUTHORIZED THE IMPEACHMENT INQUIRY AS A HOUSE, ALL SUBPOENAS WERE INVALID.THEY WERE VOID. WITH ALL DUE RESPECT TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, 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. MORE GENERALLY, THE PRESIDENT AS I HAVE 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 HAS 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.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 INTERBRANCH OF LEGAL AND CONSTITUTIONAL DISPUTE CANNOT REASONABLY BE VIEWED AS AN OBSTRUCTION AND MOST EMPHATICALLY NOT AS AN IMPEACHABLE OFFENSE. HISTORY ONCE AGAIN IS A GREAT TEACHER. IN THE CLINTON IMPEACHMENT, THE HOUSE JUDICIARY COMMITTEE REJECTED A DRAFT ARTICLE ASSERTING THAT PRESIDENT CLINTOE WORDS OF THE DRAFT ORDER — 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.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. THAT’S JUST A POLICY JUDGMENT BUT A CONSTITUTIONAL JUDGMENT. I WOULD GUIDE THIS COURT AS IT’S COMING THROUGH THE DELIBERATION PROCESS TO READ THAPTS TRIAL BRIEF WITH RESPECT TO PROCESS. IT WAS JUSTICE FELIX FRANKFURTER, CONFIDANT OF F.D.R., BRILLIANT JURIST, WHO REMINDED AMERICA THAT THE HISTORY OF LIBERTY IS IN LARGE MEASURE THE HISTORY OF PROCESS OF PROCEDURE. 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. IT PUTS IN BOLD RELIEF, I BELIEVE, AN IRREFUTABLE FACT. THIS HOUSE OF REPRESENTATIVES, WITH ALL RESPECT, SAW FIT TO TURN ITS BACK ON ITS OWN ESTABLISHED PROCEDURES, PROCEDURES THAT HAVE 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 OF THE UNANIMOUS AND VOCAL MINORITY.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 WE’LL DO IMPARTIAL JUSTICE. WHEN THEY CHOSE TO TEAR ASUNDER THEIR PROCEDURES, THEY WERE OATHLESS. THEY COULD TOSS OUT THEIR OWN RULE BOOK, RAW POWER. HERE WE HAVE TRAGICALLY FOR THE COUNTRY AND I BELIEVE TRAGICALLY FOR THE HOUSE OF REPRESENTATIVES, IN ARTICLE 2 OF THESE IMPEACHMENT ARTICLES, A RUNAWAY HOUSE. IT IS — IT HAS RUN AWAY NOT ONLY FROM ITS LONG-STANDING PROCEDURES, IT HAS RUN AWAY FROM THE CONSTITUTION’S DEMAND OF FUNDAMENTAL FAIRNESS CAPTURED IN THOSE HALLOWED TERMS, DUE PROCESS OF LAW.WE CARED ABOUT THIS AS AN ENGLISH-SPEAKING PEOPLE SINCE MAGNA CARTA. 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 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. WHEN COURTS — AND YOU ARE THE COURT — ARE CONFRONTED ARE 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 BENEFIT DICKTORY WORDS OF — BENEDICTORY WORDS OF THE PREAMBLE? TO SECURE THE BLESSINGS OF LIBERTY TO OURSELVES AND OUR POSTERITY. LIBERTY UNDER LAW. I THANK THE COURT. THE PRESIDING OFFICER: MR. SEKULOW. MR. SEKULOW: MR. CHIEF JUSTICE, MEMBERS OF THE SENATE, HOUSE MANAGERS, JUDGE STARR LAID OUT BEFORE YOU THE SOLEMN NATURE OF THESE PROCEEDINGS. I WANT TO CONTRAST THE SOLEMN NATURE OF THESE PROCEEDINGS AND WHAT HAS BEEN LAID OUT BEFORE US FROM A BOTH HISTORICAL AND CONSTITUTIONAL PERSPECTIVE, AND I WANT YOU TO THINK ABOUT THIS THIS — THE HISTORY, THE IMPORTANCE, THE SOLEMNITIY OF WHAT WE ARE ENGAGED IN HERE IN THIS GREAT BODY WITH WHAT TOOK PLACE IN THE HOUSE OF REPRESENTATIVES UPON THE SIGNING OF ARTICLES OF IMPEACHMENT.PENS DISTRIBUTED TO THE IMPEACHMENT MANAGERS. A CELEBRATORY MOMENT. THINK ABOUT THAT. THINK ABOUT THIS. A POIGNANT MOMENT. WE’RE NEXT GOING TO ADDRESS A FACTUAL ANALYSIS TO BRIEFLY REFLECT MY COLLEAGUE, THE DEPUTY WHITE HOUSE COUNSEL, MIKE RAPIRO WILL BE JOINING US IN A MOMENT TO DISCUSS MORE OF THE FACTS TO CONTINUE A DISCUSSION WE HAD ON SATURDAY, BUT LET ME JUST RECAP VERY QUICKLY WHAT WAS LAID OUT ON SATURDAY. FIRST, THE TRANSCRIPT SHOWS THAT THE PRESIDENT DID NOT CONDITION EITHER SECURITY ASSISTANCE OR A MEETING ON ANYTHING. THE CALL SECURITY FUNDS AREN’T EVEN — THE PAUSE OF SECURITY FUNDS AREN’T EVEN MENTIONED ON THE CALL. SECOND, PRESIDENT ZELENSKY AND OTHER UKRAINIAN OFFICIALS REPEATEDLY SAID THERE WAS NO QUID PRO QUO AND NO PRESSURE ON THEM TO REVIEW ANYTHING. THIRD, PRESIDENT ZELENSKY AND HIGH-RANKING UKRAINIAN OFFICIALS DID NOT EVEN KNOW THAT 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 WEX BETWEEN ANY INVESTIGATION 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, WITHOUT THE UKRAINIAN GOVERNMENT ANNOUNCING ANY INVESTIGATIONS. FINALLY, IN THE BLIND DRIVE TO IMPEACH THE PRESIDENT, PRESIDENT TRUMP IN REALITY STRATEGICALLY HAS BEEN THE BEST FRIEND AND SUPPORTER OF UKRAINE CERTAINLY IN OUR RECENT HISTORY. THESE ARE THE FACTS. THAT IS WHAT’S BEFORE YOU. DEPUTY WHITE HOUSE COUNSEL MIKE. MR. PURPURA: PRACTICE WILL NOW — MR. PURPURA WILL NOW ADDRESS AOFFICIAL FACTS RELATED TO THESE PROCEEDINGS. THANK YOU. MR. PURPURA: 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. THE EVIDENCE THAT WE RECOUNTED WAS DRAWN DIRECTLY FROM THE HOUSE MANAGERS’ 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. PRESIDENT 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. AND THE HOUSE MANAGERS’ 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. >> AND THE FACT IS THE AID WAS GIVEN TO UKRAINE WITHOUT ANY ANNOUNCEMENT OF NEW INVESTIGATIONS. >> THAT’S CORRECT. >> AND PRESIDENT TRUMP DID IN FACT MEET WITH PRESIDENT ZELENSKY IN SEPTEMBER AT THE UNITED NATIONS, CORRECT? >> HE DID.>> AND THERE WAS NO AANNOUNCEMENT OF INVESTIGATIONS BEFORE THAT MEETING? >> CORRECT. >> AND THERE WAS NO ANNOUNCE MANY OF INVESTIGATIONS AFTER THIS MEETING. >> THAT’S RIGHT. MR. PURPURA: 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 POLICYMAKERS 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 TIM MORRISON’S WORDS, WAS ARMED WITH HIS CONVERSATION WITH PRESIDENT ZELENSKY 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 DISBURSED IMMEDIATELY. AFTER MEETING, PRESIDENT TRUMP TERMINATED THE PAUSE AND THE SUPPORT FLOWED TO UKRAINE. 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. 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 TAXPAYER DOLLARS ABROAD WHEN OTHER COUNTRIES REFUSE TO PITCH IN.MR. MORRISON AND MR. HALE BOTH TESTIFIED AT LENGTH ABOUT PRESIDENT TRUMP’S LONG-STANDING CONCERN WITH BURDEN-SHARING IN FOREIGN AID PROGRAMS. HERE’S WHAT THEY SAID. >> THE PRESIDENT WAS CONCERNED THAT THE UNITED STATES SEEMED TO BEAR THE EXCLUSIVE BRUNT OF SECURITY ASSISTANCE TO UKRAINE. HE WANTED TO SEE THE EUROPEANS STEP UP AND CONTRIBUTE MORE SECURITY ASSISTANCE. >> 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 TRULY IN U.S. NATIONAL INTERESTS AND THAT WE EVALUATED CONTINUE USUALLY, THAT IT MEETS CERTAIN CRITERIA THAT THE PRESIDENT HAS ESTABLISHED. >> AND HAS THE PRESIDENT EXPRESSED THAT HE SPECTORS OUR ALLIES TO GIVE THEIR FAIR SHARE OF AID AS EVIDENCED BY A POINT HE RAISED DURING THE JULY 25 CALL WITH PRESIDENT ZELENSKY TO THAT EFFECT? >> THE PRINCIPLE OF GREATER BURDEN-SHARING BY ALLIES AND OTHER LIKE-MINDED STATES IS AN IMPORTANT PART OF THE FOREIGN ASSISTANCE REVIEW.MR. PURPURA: 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 DEFENSIVE WEAPONS THAT UKRAINE NEEDS IN ITS WAR WITH RUSSIA.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, HAS 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. 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 ANTICORRUPTION LEGISLATION. NOTWITHSTANDING 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 — ANTICORRUPTION REFORMS. MR. MORRISON ALSO TESTIFIED THAT THE ADMINISTRATION WAS WORKING ON ANSWERING THE PRESIDENT’S CONCERNS REGARDING BURDEN-SHARING. HERE’S MR. MORRISON. >> WAS THERE ANY INTERAGENCY ACTIVITY, WHETHER IT BE WITH THE STATE DEPARTMENT OR THE DEFENSE DEPARTMENT,? COORDINATION BY THE NATIONAL SECURITY COUNSEL TO LOOK INTO THAT FOR THE PRESIDENT? >> WE WERE SURVEYING THE DATA TO UNDERSTAND WHO WAS CONTRIBUTING WHAT AND SORT OF IN WHAT CATEGORIES.>> AND SO THE PRESIDENT EVINCED CONCERNS. THE INTERAGENCY TRIED TO ADDRESS THEM? >> YES. MR. PURPURA: HOW ELSE DO WE KNOW THAT THE PRESIDENT WAS AWAITING INFORMATION ON BURDEN-SHARING AND ANTICORRUPTION 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 POLITICAL ARTICLE — 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 RESPONDINGED BY ASKING ABOUT TWO THINGS — BURDEN-SHARING AND CORRUPTION. HERE’S HOW JENNIFER WILLIAMS DESCRIBED IT. THE V.P. 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. >> ON THE EVENING OF SEPTEMBER 1 I RECEIVED READOUT OF THE PENCE-ZELENSKY MEETING OVER THE PHONE FROM MR.MORRISON DURING WHICH HE TOLD THAT PRESIDENT ZELENSKY HAD OPENED THE MEETING BY IMMEDIATELY ASKING VICE PRESIDENT ABOUT THE SECURITY COOPERATION. THE VICE PRESIDENT DID NOT RECEIVE 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. MR. PURPURA: 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 WHAT IT WAS PAUSED AND NO ONE WAS ADDRESSING THE PRESIDENT’S CONCERNS WITH UKRANIAN 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 MANAGERS’ BACKUP ACCUSATIONS? DO THEY FAIR ANY BETTER THAN THEIR QUID PRO QUO FOR SECURITY ASSISTANCE? NO. NO, THEY DON’T. 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. WHEN YOU’RE SETTLED IN AND READY, I’D LIKE TO INVITE YOU TO THE WHITE HOUSE. ON MAY 29, THE WEEK AFTER PRESIDENT ZELENSKY’S INAUGURATION, PRESIDENT TRUMP SENT A CONGRATULATORY LETTER AGAIN INVITING PRESIDENT ZELENSKY TO THE WHITE HOUSE. 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, D.C. AS SOON AS WE CAN FIND A MUTUALLY CONVENIENT TIME. THEN ON JULY 25, PRESIDENT TRUMP PERSONALLY INVITED PRESIDENT ZELENSKY TO PARTICIPATE IN A MEETING FOR A THIRD TIME. 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. 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 IT THE PRESIDENTS AT THE EARLIEST POSSIBLE DATE. TIM MORRISON WHOSE RESPONSIBILITIES INCLUDED HELPING ARRANGE HEAD OF STATE MEETINGS TO THE WHITE HOUSE OR OTHER STATE MEETINGS TESTIFIED THAT HE UNDERSTOOD THAT ARRANGING THE WHITE HOUSE MEETING WITH PRESIDENT ZELENSKY WAS A DO-OUT THAT CAME FROM THE PRESIDENT.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? 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. 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 UKRANIANS 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. 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.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 GOALPOST 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. 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. AS DR. HILL TESTIFIED, WHAT MATTERED WAS THERE WAS A B LATERAL PRESIDENTIAL MEETING, NOT THE LOCATION OF THE MEETING. SHE SAID, IT WASN’T ALWAYS A WHITE HOUSE MEETING PER SAY, 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.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? 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. 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.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 A 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. 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, BAFORTD SONDLAND SAID — AMBASSADOR SONDLAND SAID HE COULD ONLY REPEAT WHAT HE HEARD THROUGH AMBASSADOR VOLKER FROM GIULIANI. SO HE DIDN’T EVEN HEAR FROM MR. GIULIANI HIMSELF. 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 UKRANIAN INVESTIGATIONS. I’M GOING TO READ THE FULL QUESTIONS AND ANSWERS BECAUSE THIS PASSAGE IS KEY. THIS IS FROM AMBASSADOR VOLKER’S DEPOSITION TESTIMONY. QUESTION, DID PRESIDENT TRUMP EVER WITHHOLD A MEETING WITH PRESIDENT ZELENSKY OR DELAY A MEETING WITH PRESIDENT ZELENSKY UNTIL THE UKRANIANS 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.QUESTION, YOU SAID THAT YOU WERE NOT AWARE OF ANY LINKAGE BETWEEN A DELAY IN THE OVAL OFFICE MEETING BETWEEN PRESIDENT TRUMP AND PRESIDENT ZELENSKY AND THE UKRANIAN COMMITMENT TO INVESTIGATE THE TWO ALLEGATIONS AS YOU DESCRIBED THEM, CORRECT? ANSWER, CORRECT. ON NO FEWER THAN 15 SEPARATE OCCASIONS OVER THE PAST WEEK THE HOUSE MANAGERS PLAYED A VIDEO OF BLAFERRED 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. 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 PRESIDENT 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. BEFORE I MOVE ON, LET ME TAKE A BRIEF MOMENT TOLL ADDRESS A SIDE ALLEGATION THAT WAS RAISED IN THE ORIGINAL WHISTLE-BLOWER COMPLAINT AND THAT THE HOUSE MANAGERS ARE STILL TRYING TO PUSH. THE MANAGERS CLAIM THAT PRESIDENT TRUMP ORDERED VICE PRESIDENT PENCE NOT TO ATTEND PRESIDENT 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. 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 A 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 UKRANIAN INAUGURATION WOULD OCCUR AT THE END OF MAY OR IN EARLY JUNE. JENNIFER WILLIAMS TESTIFIED THAT THE OFFICE OF THE VICE PRESIDENT ADVISED THE UKRANIANS 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.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 PRESIDENT JUSTIN TRUDEAU AND PROMOTE THE PASSAGE OF THE USMCA. THIS DECISION, AS YOU KNOW, ADVANCED THE TOP ADMINISTRATION PRIORITY, AN ISSUE PRESIDENT TRUMP VIGOROUSLY SUPPORTED. 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 ADVANCE TEAM.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 TO 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’S INAUGURATION IS BASED ON HOUSE MANAGER ASSUMPTIONS, WITH NO EVIDENCE THAT THE PRESIDENT DID SOMETHING WRONG.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 THAT 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 THAT 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. 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 POLICIES. 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. 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. >> THE TRUMP ADMINISTRATION HAS INDEED PROVIDED SUBSTANTIAL AID TO UKRAINE IN THE FORM OF DEFENSE AND LEGAL AID, CORRECT? >> THAT IS CORRECT. >> THAT IS MORE THAN THE OBAMA ADMINISTRATION, CORRECT? DEFENSIVE LEGAL AID. >> YES. >> PRESIDENT TRUMP APPROVED EACH OF THE DECISIONS MADE ALONG THE WAY, PROVIDING LETHAL DEFENSIVE EQUIPMENT. >> AND THE TRUMP ADMINISTRATION STRENGTHENED OUR POLICY BY APPROVING THE PROVISION TO UKRAINE OF ANTITANK MISSILES KNOWN AS JAVELINS.THEY ARE OBVIOUSLY TANKBUSTERS. 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. MR. PURPURA: 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 MANAGERS’ OWN RECORD ON WHICH THEY IMPEACHED THE PRESIDENT. THIS IS WHY THE HOUSE MANAGERS’ 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 MANAGERS’ RECORD REFLECTS THAT ANYONE WHO SPOKE WITH THE PRESIDENT SAID THAT THE PRESIDENT MADE CLEAR THAT THERE WAS NO LINKAGE. 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 CASE IS 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. AND I THINK WE’RE READY FOR A BREAK. THE PRESIDING OFFICER: THE MAJORITY LEADER IS RECOGNIZED. MR. McCONNELL: I WILL NOTIFY OUR COLLEAGUES, WE WOULD LIKE TO TAKE A 15-MINUTE BREAK. THE PRESIDING OFFICER: WITHOUT OBJECTION. RECESS: DISWR UNDERTHAT HAVING SCULD WITH THE PRESIDENT’S LAWYERS THAT WE’RE LOOKING AT AROUND 6:00 P.M. FOR DINNER AND FLY RIGHT THROUGH TILL 6:00 P.M. 6. THE PRESIDING OFFICER: THE PRESIDENT’S COUNSEL CAN CONTINUE WITH THEIR CASE. MR. SEKULOW THERE HAS BEEN A LOT OF TALKS IN THE BRIEFS AND IN THE DISCUSSIONS OVER THE LAST WEEK ABOUT ONE OF OUR COLLEAGUES, FORMER MAYOR OF NEW YORK, RUDI GIULIANI. MAYOR GIULIANI SERVED AS ONE OF THE LEADERS OF THE PRESIDENT’S DEFENSE TEAM. DURING THE MUELLER INVESTIGATION. HE’S MENTIONED 53 # TIMES, — 531 TIMES, 511 IN THE ARGUMENTS, INCLUDING THE MOTION DAY. WE HAD A ROBUST TEAM THAT WORKED ON THE PRESIDENT’S DEFENSE DURING THE MUELLER PROBE, CONSISTED OF MAYOR GIULIANI, ANDREW, BEN SISSNI AND BEN GOLDFEDER AND MARTY RASKIN AND JANE RASKIN. SHE WAS ONE OF THE LEADING ATTORNEYS ON THE MUELLER INVESTIGATION FOR THE DEFENSE OF THE PRESIDENT. THE ISSUE OF MAYOR GIULIANI HAS COME UP IN THIS CHAMBER A LOT. MR. SEKULOW: WE THOUGHT IT WOULD BE APPROPRIATE TO TURN TO THAT ISSUE, THE ROLE OF THE PRESIDENT’S LAWYER, HIS PRIVATE COUNSEL IN THIS PROCEEDING. I WOULD LIKE TO YIELD MY TIME, MR. CHIEF JUSTICE TO JANE RASKIN. MS. RASKIN: MR. CHIEF JUSTICE, MAJORITY LEADER McCONNELL, MEMBERS OF THE SENATE.I EXPECT YOU HAVE HEARD AMERICAN PRESIDENT OF THE UNITED STATES CARL SANBERG SUMMARY OF — 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. WELL, WE HEARD THE HOUSE MANAGERS DO SOME TABLE POUNDING AND A LITTLE YELLING, BUT THEY’VE USED A DIFFERENT TACTIC HERE, USED BY TRIAL LAWYERS, IF BOTH THE LAWS AND FACTS ARE AGAINST YOU, PRESENT A DISTRACTION, EMPHASIZE A ESSENTIAL FACT OR A CONTROVERSIAL PUBLIC FIGURE WHO APPEARS ON THE SCENE, THEN DISTORT CERTAIN FACTS, IGNORE OTHERS, EVEN WHEN THEY ARE THE MOST PROBATIVE, MAKE INCLUSION ORDINARY — THE SHINY OBJECT IS MORE IMPORTANT THAN THE ACTUAL FACTS ALLOWED.IN SHORT, DIVERT ATTENTION FROM THE HOLES IN YOUR CASE. RUDI GIULIANI IS THE HOUSE MANAGERS COLORFUL DISTRACTION. HE’S A HOUSEHOLD NAME, LEGENDARY FEDERAL PROSECUTOR WHO TOOK DOWN THE MAFIA, WALL STREET RACKETEERS, CRIME-BUSTING MAYOR WHO CLEANED UP NEW YORK AND TURNED IT AROUND. A NATIONAL HERO, AMERICA’S MAYOR AFTER 9/11, AND AFTER THAT, AN INTERNATIONALLY RECOGNIZED EXPERT ON FIGHTING CORRUPTION. 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 TE THAT’S TENACIS ACCOMPLISHMENTS, AND HIS FIERCE LOYALTY TO HIS CAUSES AND HIS COUNTRY. AND THEN, THE UNTHINKABLE. HE PUBLICLY SUPPORTED THE CANDIDACY OF PRESIDENT TRUMP, THE ONE WHO WAS NOT SUPPOSED TO WIN.AND 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 CLUEDED WITH RUSSIA DURING THE 2016 PRESIDENTIAL CAMPAIGN. THE HOUSE MANAGERS WOULD HAVE YOU BELIEVE THAT MR. GIULIANI IS AT THE CENTER OF THIS CONTROVERSY. THEY ANOINTED HIM THE LEAD OF A ROGUE OPERATION. THEIR PRESENTATIONS WERE FILLED WITH ATTACKS AND NAME CALLING. COLD-BLOODED POLITICAL OBJECTIVE, POLITICAL BAG MAN. BUT I SUGGEST TO YOU THAT HE’S FRONT AND CENTER IN THEIR AIR NARRATIVE FOR ONE REASON ALONE, TO DISTRACT FROM THE FACT THAT THE EVIDENCE DOES NOT SUPPORT THEIR CLAIMS.SO 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 AND WHEN HIS LAWYER RESPONDED WITH LEGAL DEFENSES TO THE PRODUCTION, THE HOUSE WALKED AWAY. BUT IF RUDI 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? 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. 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 GREEG TO A WHITE HOUSE — AGREEING TO A WHITE HOUSE VISIT.THEY BASE THAT ON AMBASSADOR SONDLAND. 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.AND, 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. THE HOUSE MANAGERS ALSO MAKE MUCH OF A MAY 23 WHITE HOUSE MEETING DURING WHICH THE PRESIDENT SUGGESTED TO HIS UKRAINE WORKING GROUP, INCLUDING AMBASSADORS VOLKER AND SONDLAND, THAT THEY SHOULD TALK TO RUDE YIF RUDY. THE MANAGERS TOLD YOU THAT THEY GAVE A DIRECTIVE THAT THEY NEEDED TO WORK WITH GIULIANI IF THEY WERE GOING TO AGREE WITH THE UKRAINE POLICY THEY WERE PROPOSING.BUT THOSE WORDS, DIRECTIVE AND DEMAND ARE MISLEADING. THEY MISREPRESENT WHAT THE WITNESSES ACTUALLY SAID. 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 AND HE ADDED THAT THE PRESIDENT WASN’T EVEN SPECIFIC ABOUT WHAT HE WANTED US TO TALK TO GIULIANI ABOUT. SO IT MAY COME AS NO SURPRISE TO YOU THAT AFTER THE MAY 23 MEETING, THE ONE DURING WHICH THE HOUSE MANAGERS TOLD YOU THE PRESIDENT DEMANDED THAT HIS UKRAINE TEAM TALK TO GIULIANI, NEITHER VOLKER NOR SONDLAND FOLLOWED UP WITH MR. GIULIANI UNTIL JULY. AND 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 ANDREY YERMAK APPROACHED HIM TO BE CONTACTED BY MR. GIULIANI. HOUSE DEMOCRATS RELY ON TESTIMONY THAT MAYOR GIULIANI TOLD AMBASSADORS VOLKER AND SONDLAND THAT IN HIS VIEW TO BE CREDIBLE A UKRAINIAN STATEMENT ON ANTICORRUPTION SHOULD SPECIFICALLY MENTION INVESTIGATIONS INTO 2016 ELECTION INTERFERENCE AND BURISMA.BUT WHEN AMBASSADOR VOLKER WAS ASKED WHETHER HE KNEW GIULIANI WAS, AND THESE ARE HIS WORDS, CONVEYING MESSAGES THAT PRESIDENT TRUMP WANTED CONVEYED TO THE UKRAINIANS, AMBASSADOR VOLKER SAID HE DID NOT HAVE THAT IMPRESSION AND HE BELIEVED THAT GIULIANI WAS DOING HIS OWN COMMUNICATION ABOUT WHAT HE BELIEVED HE WAS INTERESTED IN. BUT EVEN MORE SIGNIFICANT THAN THE RELIANCE ON PRESUMPTIONS, ASSUMPTIONS AND UNSUPPORTED CON CHOOSINGS, — CONCLUSIONINGS IS THE MANAGERS FAILURE TO PLACE 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 HITCHUP.THEY’D HAVE YOU BELIEVE THAT MAYOR GIULIANI WAS ONLY THERE TO DIG UP DIRT AGAINST FORMER PRESIDENT BIDEN BECAUSE HE MIGHT BE PRESIDENT TRUMP’S RIVAL IN THE 2020 ELECTION. OF COURSE, MR. GIULIANI’S INTENT IS NO SMALL MATTER HERE. IT’S A SNARL AND ESSENTIAL PRESIDENT OBAMA — IT’S A CENTRAL AND ESSENTIAL PREMISE THAT INVESTIGATING UKRAINIAN CORRUPTION AND INTERFERENCE IN THE 2016 ELECTION WAS AN ENTIRELY POLITICAL ONE UNDERTAKEN AT THE PRESIDENT’S DIRECTION. 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, HIS MOTIVE COULD ONLY BE TO FURTHER THE PRESIDENT’S POLITICAL OBJECTIVES THE HOUSE MANAGERS 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 TO 20 ELECTION. NO OTHER OPTION. RIGHT? WRONG. THERE IS OF COURSE ANOTHER OBVIOUS ANSWER TO THE QUESTION, WHAT MOTIVATED MAYOR GIULIANI TO INVESTIGATE THE POSSIBLE INVOLVEMENT OF UKRANIANS 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. 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 AN 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. 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 UKRANIANS’ 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. 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”THE WASHINGTON POST” AND OTR NEWS OUTLETS REPORTED THE SAME INFORMATION. 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 UKRANIAN ELECTION INTERFERENCE TO DEFEND HIS CLIENT AGAINST THE FALSE ALLEGATIONS BEING INVESTIGATED BY SPECIAL COUNSEL MUELLER. BUT THE HOUSE MANAGERS DIDN’T EVEN ALLUDE TO THAT POSSIBILITY. INSTEAD THEY JUST REPEATED THEIR MANTRA THAT GIULIANI’S MOTIVE WAS PURELY POLITICAL, AND 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 BACK DOOR HERE. 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. THE FACT IS IN THE END, AFTER A TWO-YEAR SIEGE ON THE PRESIDENCY, TWO INSPECTOR GENERAL REPORTS, AND A $32 MILLION SPECIAL COUNSEL INVESTIGATION, IT TURNS OUT RUDY WAS SPOT ON. IT 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 F.B.I., 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. BUT NDGES — 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. THANK YOU MR. CHIEF JUSTICE. I YIELD BACK TO MR. SEKULOW. MR. SEKULOW: MR. CHIEF JUSTICE, MEMBERS OF THE SENATE, HOUSE MANAGERS, WE’RE GOING TO NOW MOVE TO A SECTION DEALING WITH THE LAW. TWO ISSUES IN PARTICULAR THAT MY COLLEAGUE PAT PHILBIN, THE DEPUTY WHITE HOUSE COUNSEL, WILL BE ADDRESSING — ISSUES INVOLVING DUE PROCESS AND ISSUES SPECIFICALLY, LEGAL ISSUES DEALING WITH THE SECOND ARTICLE OF IMPEACHMENT, OBSTRUCTION OF CONGRESS. SO I WILL YIELD MY TIME NOW, MR.CHIEF JUSTICE, TO MR. PHILBIN. MR. PHILBIN: 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 CHARACTERIZED THE PROCEEDINGS IN THE HOUSE, AND SOME OF THE FUNDAMENTAL MISCHARACTERIZATIONS AND ERRORS THAT UNDERPIN THE CHARGE OF OBSTRUCTION. TODAY I’LL COMPLETE THE PRESENTATIONS 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 AFFECTED 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. I NOTED THAT IN CASES SUCH AS UNITED STATES VS. WATKINS, THE SUPREME COURT SET OUT THESE PRINCIPLES SCET — SET OUT IN THE CONSTITUTION WHICH ASSIGNS AUTHORITY TO THE HOUSE AND TO THE SENATE.NOT TO INDIVIDUAL MEMBERS OR TO THE SUBCOMMITTEES. FOR AN AUTHORITY OF THE HOUSE TO BE TRANSFERRED TO A COMMITTEE, THE HOUSE HAS TO VOTE ON THAT. THE D.C. CIRCUIT HAS DISTILLED THE CIRCUIT FROM THOSE CASES THIS WAY. TO ISSUE A VALID SUBPOENA, A COMMITTEE OR SUBCOMMITTEE MUST CONFORM STRICTLY TO THE RESOLUTION ESTABLISHING ITS INVESTIGATE INVESTIGATIVE POWERS. THAT WAS THE PROBLEM HERE. THERE WAS NO SUCH RESOLUTION, NO VOTE FROM THE HOUSE AUTHORIZING THE USE OF THE 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. 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 THRESH HOMED FOUNDATIONAL — THRESHOLD FOUNDATIONAL POINT WHEN WE GET TO THE OBSTRUCTION CHARGE. THE SECOND FUNDAMENTAL DUE PROCESS ERROR IS THAT 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 ANDRESPOND TO A COUPLE OF POINTS THAT THE HOUSE MANAGERS HAVE MADE. THE FIRST IS 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. I BELIEVE WE HAVE MANAGER NADLER’S DESCRIPTION OF WHAT WAS REQUIRED.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 WHILE 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. 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 ACCOUNTS ABOUT HIM EVERY DAY. THEY DIDN’T KEEP THEIR INVESTIGATION SECRET. THEIR WITNESSES 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 HAVE BEEN A CRIMINAL VIOLATION. PROSECUTORS CAN’T DO THAT. UNDER RULE 6-E OF THE FEDERAL CRIMINAL RULES, IT’S A CRIMINAL OFFENSE TO BE LEAKING WHAT TAKES PLACE IN A GRAND JURY. AND ALSO THE GRAND JURY EXPLANATION PROVIDES NO RATIONALE WHATSOEVER FOR THIS SECOND ROUND OF HEARINGS.REMEMBER, AFTER THE BASEMENT BUNKER, AFTER THE SECRET HEARINGS WHERE THE TESTIMONY WAS PRESCREENED, 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. IN EVERY PRIOR PRESIDENTIAL IMPEACHMENT IN THE MODERN ERA WHERE THERE HAVE 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.NOW I ALSO ADDRESSED THE OTHER DAY THE HOUSE MANAGERS’ CONTENTION THAT THEY HAD OFFERED THE PRESIDENT DUE PROCESS. WHEN THINGS REACHED THE THIRD ROUND OF HEARINGS IN FRONT OF THE HOUSE JUDICIARY COMMITTEE, MANAGER NADLER OFFERED THE PRESIDENT DUE PROCESS AND I EXPLAINED WHY THAT WAS ILLUSORY. THERE WAS NO GENERAL OFFER THERE BECAUSE BEFORE ANY HEARINGS BEFORE OTHER THAN THE LAW PROFESSOR SEMINAR, THE SPEAKER ALREADY DETERMINED THE OUTCOME, ALREADY SAID THERE 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, 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 BRANCH CONFIDENTIALITY, 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, WE’LL 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 PROCESS IS THIS. IT’S IMPORTANT TO REMEMBER THAT DUE PROCESS IS ENSHRINED IN THE BILL OF RIGHTS FOR A REASON. IT’S NOT THAT PROCESS IS JUST AN END IN ITSELF. INSTEAD, IT’S DEEP-SEEDED BELIEF IN OUR LEGAL SYSTEM THAT IT IS ESSENTIAL FOR ACCURATE DECISION-MAKING, THE 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 AS THE GREATEST LEGAL ENGINE EVER DISCOVERED — 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 PROCEDURE TO KEEP THE PRESIDENT LOCKED OUT OF THE 72 OF THE SO-CALLED 78 DAYS OF INVESTIGATION? I’D SUBMIT BECAUSE THE PROCESS WAS NEVER ABOUT FINDING THE TRUTH. IT WAS ABOUT DETERMINING A PREDETERMINED OUTCOME ON A TIMETABLE AND HAVING IT DONE BY CHRISTMAS AND THAT IS WHAT THEY ACHIEVED. 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 REASONABLE POTENTIALLY BECAUSE OF HIS OFFICE’S CONTACT WITH THE SO-CALLED WHISTLE-BLOWER AND WHAT WAS DISCUSSED AND HOW THE EXPLAIN THE WAS FRAMED, WHICH ALL REMAINED SECRET, TO LIMIT INQUIRY INTO THAT, WHICH WAS RELEVANT. THE WHISTLE-BLOWER BEGAN THIS WHOLE PROCESS, HIS BIAS, HIS MOTIVE, WHY HE WAS DOING IT. 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 THIS 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 TRYING 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 FOR 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. WHATEVER PRECEDENT IS SET, WHATEVER THIS BODY ACCEPTS NOW AS A PERMISSIBLE WAY TO BRING AND 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 GETTING NEW EVIDENCE. THEN THAT’S GOING TO BE THE NEW NORMAL AND THAT WILL BE WAY THIS CHAMBER HAS TO FUNCTION, AND THERE WILL 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 YOU CAN COME HERE AND EXPECT THE SENATE TO DO THE WORK THAT THE HOUSE DIDN’T DO.I SUBMIT THAT IS NOT THE CONSTITUTIONAL FUNCTION OF THIS CHAMBER SITTING AS A COURT OF IMPEACHMENT, CONTINUE — THIS CHAMBER SHOULD NOT PUT THIS ON A PROCESS IN THE HOUSE IN 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 OFFENSES AND IMMUNITIES BASED ON LEGAL ADVICE FROM THE DEPARTMENT OF JUSTICE’S LEGAL COUNSEL. IN ESSENCE, THE APPROACH HERE IS THE 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.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 IT CAN JUMP STRAIGHT TO IMPEACHMENT. WHAT THIS REALLY MEANS IN THIS CASE IS THAT THEY ARE SAYING FOR THE PRESIDENT TO DEFEND THE PREROGATIVES OF HIS OFFICE, TO DEFEND CONSTITUTIONALLY GROUNDED PRINCIPLES OF EXECUTIVE BRANCH PRINCIPLES OR IMMUNITIES IS AN IMPEACHABLE OFFENSE. IF THIS CHAMBER ACCEPTS THAT PREMISE, THAT WHAT HAS BEEN ASSERTED 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. 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 THE 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. SO THE FIRST IS EXECUTIVE BRANCH OFFICIALS DECLINED TO COMPLY WITH SUBPOENAS THAT HAD NOT BEEN AUTHORIZED.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 18 LETTER FROM THE WHITE HOUSE COUNSEL THAT SPECIFIC GROUND WAS EXPLAINED. AND IT WASN’T JUST FROM THE WHITE HOUSE COUNSEL. THERE WERE OTHER LETTERS. ON THE SCREEN NOW IS AN OCTOBER 15 LETTER FROM O.M.B. 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 1, SECTION 2 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, THE DEPARTMENT OF JUSTICE’S OFFICE OF LEGAL COUNSEL ADVISED THAT THREE SENIOR ADVISORS TO THE PRESIDENT, ACTING WHITE HOUSE EEF CHIEF OF STAFF, THE DEPUTY NATIONAL SECURITY ADVISOR WERE ABSOLUTELY IMMUNE FROM COMPELLED CONGRESSIONAL TESTIMONY.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 1970’S. PRESIDENT OBAMA ASSERTED IT AS TO THE DIRECTOR 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 WIELDING. THIS WAS NOT SOMETHING MADE UP RECENTLY. THERE’S A DECADES LONG HISTORY OF THE DEPARTMENT OF JUSTICE PROVIDING AN OPINION THAT SENIOR ADVISORS FOR THE PRESIDENT ARE IMMUNE FROM COMPELLED TESTIMONY AND IT’S THE SAME PRINCIPLE THAT WAS ASSERTED HERE. AND THERE ARE IMPORTANT RATIONALES BETWEEN THIS IMMUNITY. ONE IS THE PRESIDENT’S SENIOR ADVISORS ARE ESSENTIALLY HIS ALTER EGOS AND ALLOWING CONGRESS TO HAVE THEM TESTIFY WOULD BE TAUNT MOUNT TO HAVING THE PRESIDENT COME TESTIFY. BUT THAT, UNDER THE SEPARATION OF POWERS, WOULD NOT BE TOLERABLE. CONGRESS COULD NO MORE DO THAN THAN THE PRESIDENT COULD FORCE MEMBERS OF THE CONGRESS TO COME TO THE WHITE HOUSE AND ANSWER HIM.THERE IS A SECOND RATIONALE BEHIND THIS IMMUNITY AND THAT RELATES TO EXECUTIVE PRIVILEGE. THE IMMUNITY PROTECTS THE SAME INTEREST THAT UNDERLIE EXECUTIVE PRIVILEGE. THE SUPREME COURT HAS RECOGNIZED EXECUTIVE PRIVILEGE THAT PRODUCTS THE CONFIDENTIALITY OF COMMUNICATIONS WITH THE PRESIDENT AND DELIBERATIONS WITHIN THE EXECUTIVE BRANCH IS, AS THE COURT PUT IT IN THE UNITED STATES VERSUS NIXON, THE PRIVILEGE IS FUNDAMENTAL TO THE OPERATION OF GOVERNMENT, AND INEXTRICABLY ROOTED IN THE SEPARATION OF POWERS UNDER THE CONSTITUTION. THE SUPREME COURT RECOGNIZED THE EXECUTIVE NEEDS THIS PLIJ TO BE ABLE TO FUNCTION ITS — PRIVILEGE TO BE ABLE TO FUNCTION ITS ROOTED FUNCTIONS. JANET RENO ADVISED PRESIDENT CLINTON, THE IMMUNITY SUCH ADVISORS ENJOY IS ABSOLUTE AND MAY NOT BE OVERBORNE BY COMPETING CONGRESSIONAL INTERESTS. 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 IMMUNITY FOR SENIOR ADVISORS. 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 AND DELIBERATIONS IN ORDER TO HAVE GOOD AND WORTHWHILE DELIBERATIONS, IN ORDER TO HAVE PEOPLE PROVIDE THEIR CANDID AT VICE TO THE PRESIDENT — ADVICE TO THE PRESIDENT.IF THEY KNEW WHAT THEY WERE GOING TO SAY WOULD 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. AND THIS IS THE WAY THE SUPREME COURT PUT IT. QUOTE, HUMAN EXPERIENCE TEACHES THAT THOSE WHO EXPECT PUBLIC DISSEMINATION OF THEIR REMARKS MAY WELL TEMPER CANDOR FOR THEIR OWN INTERESTS TO THE DETRIMENT OF THE DECISION-MAKING PROCESS. END QUOTE. THAT WAS ALL FROM THE UNITED STATES VERSUS NIXON. SO THOSE ARE EXACTLY THE INTERESTS THAT ARE PROTECTED BY HAVING SENIOR ADVISORS TO THE PRESIDENT BE IMMUNE FROM COMPELLED CONGRESSIONAL TESTIMONY.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 THEY DON’T START REVEALING SOMETHING THAT WAS DISCUSSED. 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 PRINCIPLE 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 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 ADVISOR, THE ACCOMMODATIONS PROCESS BETWEEN THE EXECUTIVE BRANCH AND THE LEGISLATOR BEGINS, AND THERE’S USUALLY SOME COMPROMISE TO ALLOW PERHAPS SOME TESTIMONY, NOT IN AN OPEN HEARING BUT IN A CLOSED HEARING OR DISPOSITION, PERHAPS PROVIDE SOME INFORMATION INSTEAD OF LIVE TESTIMONY, THERE’S A COMPROMISE. THE ONLY TWO TIMES IT’S BEEN LITIGATED, DISTRICT COURTS, IT IS TRUE, REJECTED THE IMMUNITY. ONE WAS IN A CASE INVOLVING FORMER COUNSEL TO PRESIDENT GEORGE GEORGE W.BUSH HARRIET MIERS, THE DISTRICT COURT REJECTED THE IMMUNITY, BUT IMMEDIATELY THE COURT OF APPEALS FOR THE D.C. CIRCUIT STAYED THAT DECISION AND — AND THAT DECISION MEANS TO STAY THAT DISTRICT COURT DECISION THAT THE APPELLATE COURT THOUGHT THERE THERE WAS A LIKELIHOOD OF SUCCESS ON APPEAL THAT THE EXECUTIVE BRANCH MIGHT PROCEED OR AT A MINIMUM THE QUESTIONS GOING TO THE MERITS SO SERIOUS, SUBSTANTIAL, DIFFICULT, AND DOUBTFUL AS TO MAKE THEM A FAIRGROUND FOR LITIGATION. 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. THAT CASE WAS JUST ARGUED IN THE D.C. CIRCUIT JANUARY 3. 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 FOUR YEARS.ASSERTING THAT PRINCIPLE CAN’T BE TREATED AS OBSTRUCTION OF CONGRESS. 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 COUNSEL FROM THE DEPOSITIONS OF EXECUTIVE BRANCH EMPLOYEES. NOW, THE OFFICE OF LEGAL COUNSEL CONCLUDEED THE CONGRESSIONAL COMMITTEES MAY NOT BAR AGENCY COUNSEL FROM ASSISTING AN EXECUTIVE BRANCH WITNESS WITHOUT CONTRAVENING THE LEGITIMATE PREROGATIVES OF THE EXECUTIVE BRANCH, AND IN ATTEMPTING TO ENFORCE A SUBPOENA WHILE BARRING AGENCY COUNSEL, QUOTE, WOULD BE UNCONSTITUTIONAL. UNQUOTE. 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. AGAIN, ADMINISTRATIONS OF BOTH POLITICAL PARTIES HAVE RECOGNIZED THE IMPORTANT ROLE THAT AGENCY COUNSEL PLAYS. IN THE OBAMA ADMINISTRATION, THE OFFICE OF LEGAL COUNSEL STATED THAT EXCLUSION OF AGENCY COUNSEL, QUOTE, 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 THE 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 IS COVERED BY EXECUTIVE PRIVILEGE OR DELIBERATIVE PROCESS PRIVILEGE? NOT THINGS THAT EMPLOYEES NECESSARILY KNOW. AND THEIR PERSONAL COUNSEL, EVEN IF THEY ARE 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. 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 AN 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 AND 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 COUNSEL, BUT OF COURSE A HOUSE RULE CANNOT OVERRIDE A CONSTITUTIONAL PRIVILEGE.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. HOUSE DEMOCRATS’ 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 BORDENKIRCHER VERSUS HAYES, IT SAYS 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. THIS IS A PRINCIPLE THAT IN THE PAST, IN 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 LAURENCE TRIBE SAID, QUOTE, THE ALLEGATION THAT INVOKING PRIVILEGES AND OTHERWISE USING THE JUDICIAL SYSTEM TO SHIELD INFORMATION IS AN ABUSE OF POWER THAT SHOULD LEAD TO IMPEACHMENT AND REMOVAL FROM OFFICE IS NOT ONLY FRIVOLOUS BUT ALSO DANGEROUS.AND MANAGER NADLER THEN SAID THAT THE USE OF A LEGAL 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. >> TO SUGGEST THAT ANY SUBJECT OF AN INVESTIGATION, MUCH LESS THE PRESIDENT, WITH OBLIGATIONS 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.MR. PHILBIN: AND THAT WAS EXACTLY CORRECT THEN AND IT’S EXACTLY CORRECT NOW. NOW, MORE IMPORTANT THAN SIMPLY THE PRINCIPLE THAT ASSERTING RIGHTS CAN’T 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. ACCEPTING THAT APPROACH WILL 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 AS IMPEACHABLE, THE HOUSE WOULD EFFECTIVELY BE ABLE TO FUNCTION WITH A NO CONFIDENCE VOTE POWER.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. 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 OF THEIR FUNCTIONS, BE GUIDED BY THE TEXT OF THE CONSTITUTION, ACCORDING TO ITS OWN INTERPRETATION 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 CONSISTS IN GIVING TO THOSE WHO ADMINISTER EACH DEPARTMENT THE NECESSARY CONSTITUTIONAL MEANS AND PERSONAL MOTORISTS 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. 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 IS A CLASH OVER A DEMAND FOR INFORMATION. AS THE D.C. CIRCUIT HAS EXPLAINED, WHEN CONGRESS ASKS FOR INFORMATION FROM THE EXECUTIVE BRANCH, THAT TRIGGERS, QUOTE, AN IMPLICIT CONSTITUTIONAL MANDATE TO SEEK OPTIMAL ACCOMMODATION OF THE NEEDS OF THE CONFLICTING BRANCHES, END QUOTE.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. THE HOUSE TRADITIONALLY HAS PROCEEDED TO CONTEMPT, TO 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 JUDICIABLE. THAT WAS THE VIEW IN THE TRUMP ADMINISTRATION AND THE OBAMA ADMINISTRATION. 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 INTERBRANCH 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, QUOTE, NEITHER OF THEM, IT IS EVIDENT, CAN PORTEND TO AN EXCLUSIVE OR SUPERIOR RIGHT OF SETTLING THE BOUNDARIES BETWEEN THEIR RESPECTIVE POWERS, END QUOTE. 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 THEIR SUBPOENA IS INVALID, WE DON’T HAVE TO DO ANYTHING TO ADDRESS 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 IS, 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 1, SECTION 2 GIVES THE HOUSE THE SOLE POWER OF IMPEACHMENT, AND THEY CLAIM THAT BECAUSE IT’S THE SOLE POWER OF IMPEACHMENT, COURTS HAVE NO ROLE, THE HOUSE IS THE FINAL WORD, 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 A PARAMOUNT POWER THAT MAKES ALL OTHER CONSTITUTIONAL RIGHTS AND PRIVILEGES AND PREROGATIVES OF THE OTHER BRANCHES FALL AWAY. THE FRAMERS RECOGNIZED THAT THERE COULD BE PARTISAN IMPEACHMENTS, 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 IN IMPEACHMENT AND THEY HAVE CONSTITUTIONAL KRYPTONITE THAT MAKES THE POWERS OF THE EXECUTIVE ELIMINATEED. 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 BOUNDS 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. OTHER SCHOLARS AGREE. IN THE CLINTON IMPEACHMENT PROFESSOR SUSAN LOWE BLOCK TESTIFIED IMPEACHING A PRESIDENT FOR PROTECTING LAWFUL PRIVILEGES IS A DANGEROUS AND OMINOUS PRECEDENT. END QUOTE. IT WOULD ACHIEVE EXACTLY THE RESULT THAT 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. 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 THE 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 TO STAND IN THE WAY. 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 REFUSED 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 COULD BE A VERY LONG LIST OF PRESIDENTS WHO WOULD HAVE TO BE DISTINGUISHED IF THE PRINCIPLES BEING ASSERTED NOW IN THIS CASE WERE APPLIED TO ALL PAST PRESIDENTS IN HISTORY. NOW HOUSE DEMOCRATS HAVE GIVEN A FEW DIFFERENT JUSTIFICATIONS FOR THIS APPROACH.BUT I WOULD SUBMIT NONE CAN BE RECONCILED WITH THE CONSTITUTION. THEY SAY IF WE CANNOT IMPEACH THE PRESIDENT FOR THIS OBSTRUCTION, THEN THE PRESIDENT IS ABOVE THE LAW. NOT SO. AS I THINK I’VE 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. INDEED IS MAKING THE FUNDAMENTAL POINT WITH RESPECT TO THE SUBPOENAS THAT IT IS CONGRESS THAT IS NOT ABOVE THE LAW. IT’S THE HOUSE. THE HOUSE HAS TO FOLLOW THE LAW AS WELL, 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 POINTED OUT THAT THE HOUSE DEMOCRATS CAN’T SAY THAT THEY HAVE, JUST BECAUSE OF THE PROVISION OF THE SOLE POWER OF IMPEACHMENT, THAT IT’S THE PARAMOUNT POWER AND 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. IN THE McGAHN 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, BULB THAT IS THE GROUND ON — BUT THAT IS THE GROUND ON WHICH THEY ARE LITIGATING. 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. 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. I THINK IT’S RELEVANT TO BEAR IN MIND WHAT SORT OF DELAY ARE WE TALKING ABOUT. IN THE McGAHN CASE THAT THE HOUSE MANAGERS 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.BY NOVEMBER, NOVEMBER 25, THEY HAD A DECISION FROM THE DISTRICT COURT AND IT WAS ARGUED ON APPEAL IN THE D.C. CIRCUIT ON JANUARY 3. 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 18, 1974. ON MAY 20 — SO IN LESS THAN A MONTH — THE DISTRICT COURT DENIED A MOTION TO QUASH THE SUBPOENA. ON MAY 31 THE SUPREME COURT AGREED TO HEAR THE CASE IN THE COURT OF APPEALS. AND ON JULY 24 THE SUPREME COURT ISSUED ITS DECISION. THAT’S LIGHTNING FAST. SO WHEN THE, THERE IS URGENCY TO THE CASE, WHEN THERE’S A REASON FOR IT, THERE CAN BE EXPEDITION IN THE COURTS AND A DECISION CAN BE HAD IN A TIMELY MANNER. IN THE ONE CASE THAT ACTUALLY AROSE FROM THESE IMPEACHMENT PROCEEDINGS, IT WAS THE HOUSE THAT DERAILED THE CASE. 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? IN THAT CASE HE FILED SUIT ON OCTOBER 25.THE COURT WITHIN A FEW DAYS SET AN EXPEDITED BRIEFING SCHEDULE, BUT THE HOUSE WITHDREW THE SUBPOENA ON NOVEMBER 5, JUST 11 DAYS LATER, IN ORDER TO MOOT THE CASE. SO I THINK LITIGATION IS A VIABLE AVENUE, ALONG WITH THE ACCOMMODATION PROCESS AS A FIRST STEP, THEN IF THE HOUSE BELIEVES 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 SHOULD GET SOME WITNESSES THAT WE DIDN’T BOTHER TO THE FIGHT ABOUT, WHAT DO YOU THINK WILL HAPPEN THEN? THAT THERE WON’T BE SIMILAR ASSERTIONS OF PRIVILEGE AND IMMUNITY? 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. AND THAT DOESN’T MAKE SENSE FOR THIS BODY. THE 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.THEY ALSO ASSERT THAT PRESIDENT TRUMP’S ASSERTION OF THESE PRIVILEGES IS SOMEHOW DIFFERENT BECAUSE IT’S UNPRECEDENTED AND ITS 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. AND THE PRESIDENT SIMPLY POINTED OUT THAT WITHOUT THAT VOTE, THERE WERE NO VALID SUBPOENAS. AND THERE HAVE ALSO BEEN CATEGORICAL REFUSALS IN THE PASS. PRESIDENT TRIEWM — TRUMAN ISSUED A SUBPOENA TO HIS ADMINISTRATION, TO THE ENTIRE EXECUTIVE BRANCH THAT ANY SUBPOENA, DEMAND, 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 DETERMINE TO BE IN THE PUBLIC INTEREST. THE TRUMAN ADMINISTRATION RESPONDED TO 911 OF THEM. — RESPONDED TO NONE OF THEM. A LAST POINT ON THE HOUSE DEMOCRATS’ CLAIM THAT THE PRIVILEGES SIMPLY DISAPPEARED BECAUSE THIS IS IMPEACHMENT POWER OF THE HOUSE. THEY HAVE REFERRED A NUMBER OF TIMES TO THE UNITED STATES VS. NIXON, THE SUPREME COURT DECISION, SUGGESTING THAT SOMEHOW DETERMINES THAT WHEN YOU’RE IN AN IMPEACHMENT INQUIRY, EXECUTIVE PRIVILEGE FALLS AWAY. THAT’S NOT TRUE.IN FACT, THE UNITED STATES VS. NIXON WAS NOT ADDRESSING A CONGRESSIONAL SUBPOENA. IT WAS A SUBPOENA FROM THE SPECIAL PROSECUTOR. AND EVEN IN THAT CONTEXT, THE COURT DID NOT SAY THAT EXECUTIVE PRIVILEGE SIMPLY DISAPPEARS. INSTEAD THE COURT SAID, QUOTE, IT IS NECESSARY TO RESOLVE THESE COMPETING INTERESTS, THEY ARE THE INTERESTS OF THE JUDICIAL BRANCH, IN ADMINISTERING A CRIMINAL PROSECUTION CASE WHERE THE EVIDENCE WAS NEEDED. THESE COMPETING INTERESTS IN A MANNER THAT PRESERVE THE ESSENTIAL FUNCTIONS OF EACH BRANCH. AND IT EVEN HELD OUT THE POSSIBILITY THAT IN THE FIELD OF FOREIGN RELATIONS AND NATIONAL SECURITY, THERE MIGHT BE SOMETHING APPROACHING AN ABSOLUTE EXECUTIVE PRIVILEGE. THAT’S EXACTLY THE FIELD THAT WE’RE IN IN THIS CASE, FOREIGN RELATIONS AND NATIONAL SECURITY MATTERS. ANOTHER THING 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 TO EXECUTIVE PRIVILEGE BY IT AT LEAST FIVE OF HIS AIDES, END QUOTE. UNLIKE THE HOUSE IN THIS CASE, INDEPENDENT COUNSEL STARR FIRST NEGOTIATED WITH THE PROWESS AND THEN LITIGATED — WITH THE WHITE HOUSE AND 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 I IMMUNITIES AND DEFENSES HAVE TO BE TREATED AS SOMETHING NEFARIOUS BECAUSE, AS MR.NADLER PUT IT, ONLY GUILTY PEOPLE TRY TO HIDE THE EVIDENCE. THAT’S WHAT HE SAID LAST TUESDAY NIGHT. 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 OR ASSERTIONS OF PRIVILEGE. AS JUDGE STARR POINTED OUT, IN THE CLINTON PROCEEDING THE HOUSE JUDICIARY COMMITTEE CONCLUDED THE PRESIDENT IMMORAL EXERCISED EXECUTIVE — IMPROPERLY EXERCISED EXECUTIVE PRIVILEGE YET STILL CONCLUDED IT DID NOT HAVE THE ABILITY TO SECOND-GUESS THE RATIONALE BEHIND THE PRESIDENT OR WHAT WAS IN HIS MIND ASSERTING EXECUTIVE PRIVILEGE AND COULD NOT TREAT THAT AS AN IMPEACHABLE OFFENSE. IT REJECTED AN ARTICLE OF IMPEACHMENT BASED ON CLINTON’S ASSERTIONS OF PRIVILEGE. AND AS THE HOUSE DEMOCRATS’ OWN WITNESS, PROFESSOR GERHARDT, HAS EXPLAINED, IN 1843, PRESIDENT TYLER SIMILARLY WAS INVESTIGATED FOR A POTENTIAL IMPEACHMENT. HIS ATTEMPTS TO PROTECT AND ASSERT WHAT HE REGARDED AS THE PREROGATIVES OF HIS OFFICE AS HE RESISTED DEMANDS FOR INFORMATION FROM CONGRESS, PROFESSOR GERHARDT EXPLAINED THE ATTEMPTS TO PRESERVE THE PREROGATIVES OF HIS OFFICE WERE THE FUNCTION OF HIS CONSTITUTIONAL AND POLICY JUSSMENTS AND THEY COULD NOT — JUDGMENTS AND THEY COULD NOT BE USED BY CONGRESS TO IMPEACH HIM.PRESIDENT TRUMP’S RESISTANCE TO CONGRESSIONAL SUBPOENAS WAS NO LESS A FUNCTION OF HIS CONSTITUTIONAL AND POLICY JUDGMENTS AND PROVIDES NO BASIS TO IMPEACH HIM. 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. THAT IS EXACTLY WHAT THIS CASE PRESENTS. AND JUSTICE STORY RECOGNIZED THAT THE SENATE PROVIDED THE PROBLEM 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. AND ONE OF THE ESSENTIAL QUESTIONS HERE IS WILL THIS CHAMBER ADOPT A STANDARD FOR IMPEACHMENT, A DELUDED 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.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, LYMON TRUMP BALANCE WHO EXPLAINED THE GREAT PRINCIPLE THAT APPLIES HERE. HE SAID, QUOTE, ONCE WE SET THE EXAMPLE OF IMPEACHING A PRESIDENT FOR WHAT WHEN — 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. I’LL YIELD TO MR. SEKULOW. MR. SEKULOW: MR. CHIEF JUSTICE, MEMBERS OF THE SENATE, HOUSE MANAGERS, MR. PHILBIN TALKED ABOUT THE IMPORTANCE — JUST CONCLUDED ON THE IMPORTANCE OF EXECUTIVE PRIVILEGE. PROFESSOR TURLY WHO TESTIFIED BEFORE THE HOUSE SAID WE HAVE THREE BRANCHES OF GOVERNMENT, NOT TWO. IF YOU MAKE A HIGH CRIME AND MISDEMEANOR ABOUT GOING TO COURT, IT ISN’T ABUSE OF POWER. IT’S YOUR ABUSE OF POWER. WITH REGARD TO EXECUTIVE PRIVILEGE, IT WAS MR. NADLER WHO SAID — CALLED IT EXECUTIVE PRIVILEGE AND OTHER NONSENSE. WHEN ATTORNEY GENERAL HOLDER REFUSED TO COMPLY WITH PRESIDENT OBAMA AND INVOKED EXECUTIVE PRIVILEGE ARGUING, AND I QUOTE, COMPELLED DISCLOSURE WOULD BE INCONSISTENT WITH THE SEPARATION OF POWERS ESTABLISHED IN THE CONSTITUTION. EXECUTIVE POWER AND OTHER NONSENSE. MANAGER SCHIFF WROTE THE WHITE HOUSE ASSERTION OF EXECUTIVE PRIVILEGE WAS BACKED BY DECADES OF PRECEDENT THAT HAS BEEN RECOGNIZED AND HAS RECOGNIZED THE NEED FOR THE PRESIDENT AND HIS SENIOR ADVISORS TO RECEIVE CANDID ADVICE AND INFORMATION FROM THEIR TOP AIDES.EXECUTIVE PRIVILEGE AND OTHER NONSENSE. THE NONSENSE — WE TALKED ABOUT THIS THE OTHER NIGHT — IS TO TREAT THE SEPARATION OF POWERS AND CONSTITUTIONAL PRIVILEGES AS IF THEY’RE ASBESTOS IN THE CEILING TILES. YOU CAN’T TOUCH THEM. THAT’S NOT THE WAY THE CONSTITUTION IS DESIGNED. WE’RE GOING TO NOW TURN OUR ATTENTION TO A SEPARATE TOPIC. IT’S ONE THAT WAS — BEEN DISCUSSED A LOT ON THE FLOOR HERE AND WILL BE DISCUSSED NOW.PRESENTING FOR THE PRESIDENT IS THE FORMER ATTORNEY GENERAL FOR THE STATE OF FLORIDA PAM BONDY. SHE IS ALSO A PROSECUTOR, A CAREER PROSECUTOR. SHE’S HANDLED COUNTLESS CASES. SHE’S GOING TO DISCUSS AN ISSUE THAT THE HOUSE MANAGERS HAVE PUT PRETTY MUCH AT THE CENTER OF THEIR CASE, AND THAT’S THE ISSUE OF CORRUPTION IN UKRAINE PARTICULARLY WITH REGARD TO A COMPANY KNOWN AS BURISMA. I YIELD MY TIME, MR. CHIEF JUSTICE, TO FORMER ATTORNEY GENERAL PAM BONDY. >> MR. CHIEF JUSTICE, SENATORS, MEMBERS OF THE SENATE, WHEN THE HOUSE MANAGERS GAVE YOU THEIR PRESENTATION, WHEN THEY 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. MS. BONDI: AND WHETHER 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? THE REASON THEY NEEDED TO DO THAT IS BECAUSE THEY’RE 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. 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,” UKRANIAN 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. 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 MICOLA CHERVE I ASK. HERE’S WHAT HAPPENED AFTER VICE PRESIDENT BIDEN WAS MADE U.S. POINT MAN FOR UKRAINE. HIS SON HUNTER BIDEN ENDS UP ON THE BOARD OF BURISMA WORKING FOR AND PAID BY THE OLIGARCH. IN FEBRUARY 2014, IN THE WAKE OF ANTICORRUPTION UPRISING BY THE PEOPLE OF JUNE, HE FLEES THE COUNTRY, FLEES UKRAINE, THE OLIGARCH IS WELL KNOWN. GEORGE KENT, THE VERY FIRST WITNESS THAT THE DEMOCRATS CALLED DURING THEIR PUBLIC HEARINGS TESTIFIED THE OLIGARCH STOOD OUT FOR HIS SELF-DEALINGS EVEN AMONG OTHER OLIGARCHS.HOUSE MANAGERS DIDN’T TELL YOU THAT AMBASSADOR VOLKER EXPLAINED BURISMA HAD A, QUOTE, VERY BAD REPUTATION AS A COMPANY FOR CORRUPTION AND MONEY LAUNDERING. END QUOTE. HOUSE MANAGERS DIDN’T TELL YOU THAT. BURISMA WAS SO CORRUPT, THAT GEORGE KENT SAID HE INTERVENED TO PREVENT U.S. AID FROM COSPONSORING AN EVENT WITH BURISMA. YOU KNOW WHAT THIS EVENT WAS? IT WAS A CHILD’S CONTEST AND THE PRIZE WAS A CAMERA. THEY WERE SO BAD, BURISMA, THAT OUR COUNTRY WOULDN’T EVEN COSPONSOR A CHILDREN’S EVENT WITH BURISMA. IN MARCH 2014 THE UNITED KINGDOM SERIOUS FRAUD OFFICE OPENS A MONEY LAUNDERING INVESTIGATION INTO THE OLIGARCH 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 IS 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 THE STEPSON OF SECRETARY OF STATE JOHN KERRY. ALL THREE MEN, HUNTER BIDEN, DEVON ARCHER, AND CHRIS HEINZ HAD ALL STARTED AN INVESTMENT FIRM TOGETHER.PUBLIC RECORDS SHOW THAT APRIL 16, 2014, DEVON ARCHER MEETS WITH VICE PRESIDENT BIDEN AT THE WHITE HOUSE. JUST TWO DAYS LATER ON APRIL 18, 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 OPENED A MONEY LAUNDERING CASE INTO BURISMA. HUNTER BIDEN JOINS THEIR BOARD. AND NOT ONLY TEN DAYS AFTER HUNTER BIDEN JOINS THE BOARD, BRITISH AUTHORITIES SEIZE $23 MILLION IN BRITISH BANK ACCOUNTS CONNECTED TO THE OLIGARCH THAT — THEOWNER OF BURISMA. DID HUNTER BIDEN LEAVE THE BOARD THEN? NO. THEY STARTED AN 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 HIS OLIGARCH OWNER WERE FROZEN AND A CRIMINAL INVESTIGATION HAD BEGUN.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 UKRANIAN 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.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 GEO POLITICAL RISK, AND HOW BAD IT WOULD LOOK. SO HE WISELY DISTANSES HIMSELF FROM — DISTANCES HIMSELF FROM HUNTER BIDEN AND DEVON ARCHER. HE DIDN’T SIMPLY CALL HIS STEPFATHER SECRETARY OF STATE AND SAY, I HAVE A PROBLEM WITH THIS. HE DIDN’T TELL HIS FRIENDS, HEY, GUY, I’M NOT GETTING ON THE BOARD.I WANT NOTHING TO DO WITH THIS. HE WENT SO FAR AS TO SEND AN E-MAIL TO SENIOR STATE DEPARTMENT OFFICIALS ABOUT THIS ISSUE. THIS IS CHRIS HEINZ. 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 AN ABC NEWS REPORTER ASKED OBAMA WHITE HOUSE PRESS SECRETARY JAY CARNEY ABOUT IT. HERE’S WHAT HAPPENED? >> HUNTER BIDEN HAS NOT TAKEN ANY POSITION WITH THE LARGEST OIL AND GAS COMPANY, HOLDING COMPANY IN UKRAINE. IS THERE ANY CONCERN ABOUT AT LEAST THE APPEARANCE OF A CONFLICT THERE? >> 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. WHERE THEY WORK IS NOT — IS NOT REFLECTED AN ENDORSEMENT BY THE ADMINISTRATION OR BY THE VICE PRESIDENT OR PRESIDENT. BUT I WOULD REFER YOU TO THE VICE PRESIDENT’S OFFICE. MS. BONDI: THE NEXT DAY “THE WASHINGTON POST” RAN A STORY ABOUT IT. IT SAID, THE APPOINTMENT OF THE VICE PRESIDENT’S SON TO A UKRANIAN OIL BOARD LOOKS NEP TISSIC AT BEST, NEFARIOUS AT WORST.AGAIN, THE APPOINTMENT OF THE VICE PRESIDENT’S SON TO A UKRANIAN OIL BOARD LOOKS NEPOTISTIC AT BEST, NEFARIOUS AT WORST. THE MEDIA DID NOT STOP ASKING QUESTIONS HERE. IT KEPT GOING. HERE’S ABC. >> YOU HAVE TO FIGHT THE CANCER OF CORRUPTION. >> BUT THEN SOMETHING STRANGE HAPPENED. JUST THREE WEEKS LATER, A UKRANIAN NATURAL GAS COMPANY BURISMA ACCUSED OF CORRUPTION APPOINTS HUNTER BIDEN SEEN HERE IN THE PROINFORMATION — PROMOTIONAL VIDEOS TO THE BOARD OF DIRECTORS PAYING HIS FIRM MORE THAN A MILLION DOLLARS A YEAR. MS. BONDI: HERE’S MORE FROM ABC. >> UKRAINE WAS NOT THE ONLY COUNTRY WHERE HIS BUSINESS AND DIPLOMACY OF THE VICE PRESIDENT INTERSECTED. IT ALSO HAPPENED IN CHINA. THIS VIDEO SHOWS CHINESE DIPLOMATS GREETING VICE PRESIDENT BIDEN AS HE 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 $1.5 BILLION. MS. BONDI: IN FACT EVERY WITNESS WHO WAS ASKED ABOUT HUNTER IMIEDEN’S — 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 IEW FAMILIAR MOUSILY TESTIFIED THERE WAS A POTENTIAL APPEARANCE OF A CONFLICT OF INTEREST. HOW MUCH MONEY DID HUNTER BIDEN GET FOR BEING ON THE BOARD? WELL, YOU START LOOKING AT THIS BANK RECORD, ACCORDING TO REPORTS BETWEEN APRIL 2014 AND OCTOBER 2015, BURISMA PAID MORE THAN $3.1 MILLION TO DEVON ARCHER AND HUNTER BIDEN. THAT’S OVER THE COURSE OF A YEAR AND A HALF. HOW DO WE KNOW THIS? SOME OF DEVON 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 HUNTER BIDEN AND ONE DEVON ARCHER, NOW, HUNTER BIDEN WAS PAID SIGNIFICANTLY MORE THAN BOARD MEMBERS FOR MAJOR U.S. FORTUNE 100 COMPANIES, SUCH AS GOLDMAN SAKS, COMCAST, CITIGROUP. THE TYPICAL BOARD MEMBER OF THESE FORTUNE 100 COMPANIES, WE KNOW THEY’RE TITANS OF THE 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.SO 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 U.S. CENSUS BUREAU DURING THAT TIME. AND THIS IS WHAT HAS BEEN REPORTED ABOUT HIS WORK ON THE BOARD. “THE WASHINGTON POST” SAID, QUOTE, WHAT SPECIFIC DUTIES HUNTER BIDEN CARRIED OUT FOR BURISMA ARE NOT FULLY KNOWN. END QUOTE. THE NEW YORKER REPORTED, QUOTE, ONCE OR TWICE A YEAR HE ATTENDED BURISMA BOARD MEETINGS AND ENERGY FORUMS THAT TOOK PLACE IN EUROPE. END QUOTE. WHEN SPEAKING WITH ABC NEWS ABOUT HIS QUALIFICATIONS TO BE ON BURR REECE PA’S BOARD, HUNTER — BURISMA’S BOARD, HUNTER BIDEN DIDN’T POINT TO ANY USUAL QUALIFICATIONS OF A BOARD MEMBER.HE HAD NO EXPERIENCE IN NATURAL GAS, NO EXPERIENCE IN THE ENERGY SECTOR, NO EXPERIENCE WITH UKRANIAN REGULATORY AFFAIRS. AS FAR AS WE KNOW HE DOESN’T SPEAK UKRANIAN. SO NATURALLY THE MEDIA HAS ASKED QUESTIONS ABOUT HIS BOARD MEMBERSHIP. WHY WAS HUNTER BIDEN ON THIS BOARD? >> IF YOUR LAST NAME WASN’T BIDEN, DO YOU THINK YOU WOULD HAVE BEEN ASKED TO BE ON THE BOARD OF BURISMA? >> I DON’T KNOW. I DON’T KNOW. PROBABLY NOT. MS. BONDI: 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. ON AUGUST 20, 2014, FOUR MONTHS LATER, THE UKRANIAN PROSECUTOR GENERAL’S OFFICE INITIATED A MONEY LAUNDERING INVESTIGATION INTO THE SAME OLIGARCH.THIS IS ONE OF 15 INVESTIGATIONS INTO BURISMA AND. ACCORDING TO A RECENT PUBLIC STATEMENT MADE BY THE CURRENT PROSECUTOR GENERAL. ON JANUARY 16, 2015, PROSECUTOR, THE OWNER OF BURISMA, ON WHOSE HUNTER BIDEN SAT ON HIS BOARD ON THE COUNTRY’S WANTED LIST FOR FRAUD. WHILE HUNTER BIDEN IS ON THE BOARD. THEN A BRITISH COURT ORDERS HIS $23 MILLION IN ASSETS BE UNFROZEN. WHY WAS THE MONEY UNFROZEN? DEPUTY ASSISTANT SECRETARY KENT TESTIFIED TO IT. >> SOMEBODY IN THE GENERAL PROSECUTOR’S OFFICE OF UKRAINE SHUT THE CASE, ISSUED A LETTER TO HIS LAWYER, AND THAT MONEY WENT POOF. >> ESSENTIALLY PAID A BRIBE TO MAKE THE CASE GO AWAY? >> THAT IS OUR STRONG ASSUMPTION, YES, SIR. >> HE ALSO TESTIFIED THE UKRANIAN PROSECUTOR GENERAL’S OFFICE ACTIONS LED TO THE UNFREEZING OF THE ASSETS. MS. BONDI: 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 PROSECUTORS’ 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. >> IN A BRIEFING CALL WITH THE NATIONAL SECURITY STAFF OF THE OFFICE OF THE VICE PRESIDENT IN FEBRUARY 2015, I RAISED MY CONCERN THAT HUNTER BIDEN’S STATUS AS A BOARD MEMBER WOULD CREATE THE PERCEPTION OF A CONFLICT OF INTEREST. MS. BONDI: BUT HOUSE MANAGERS DIDN’T TELL YOU THAT. THIS IS ALL WHILE HUNTER BIDEN SAT ON BURISMA’S BOARD. DID HUNTER BIDEN STOP WORKING FOR BURISMA? NO. DID HE 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 U.S.-UKRAINE POLICY. HE PLEDGED $1 BILLION LOAN GUARANTEE TO UKRAINE CONTINGENT ON ITS PROGRESS IN ROOTING OUT CORRUPTION. AROUND THE SAME TIME OF THE THE $1 BILLION ANNOUNCEMENT, OTHER PEOPLE RAISED THE ISSUE OF A CONFLICT.AS 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. THE “TIME” REPORT, HERE’S THEIR QUOTE. THE CREDIBILITY OF THE VICE PRESIDENT’S ANTICORRUPTION MESSAGE MAY HAVE BEEN UNDERMINED BY THE ASSOCIATION OF HIS SON, HUNTER BIDEN, END QUOTE, WITH BURISMA AND ITS OWNER.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 19, 2016, THERE WAS A MEETING BETWEEN OBAMA ADMINISTRATION OFFICIALS AND UKRAINIAN PROSECUTORS. KEN VOGLE, JOURNALIST FOR “THE NEW YORK TIMES,” ASKED THE STATE DEPARTMENT ABOUT THIS MEETING. HE WANTED MORE INFORMATION ABOUT THE MEETING, QUOTE, WHERE U.S. SUPPORT FOR PROSECUTION OF BURISMA HOLDINGS IN THE UNITED KINGDOM AND THE UKRAINE WERE DISCUSSED, END QUOTE. BUT THE STORY NEVER RAN. AROUND THE TIME OF THE REPORTED STORY, JANUARY, 2016, A MEETING BETWEEN THE OBAMA ADMINISTRATION AND UKRAINIAN OFFICIALS TOOK PLACE ACCORDING TO A UKRAINIAN PRESS REPORT AS TRANSLATED SAYS, QUOTE, THE U.S.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 VIKTOR SHOKIN, END QUOTE. NOW, WE ALL KNOW FROM THE OBAMA ADMINISTRATION AND FROM THE WORDS OF VICE PRESIDENT BIDEN HIMSELF, HE ADVOCATED FOR THE PROSECUTOR GENERAL DISMISSAL. THERE WAS ONGOING INVESTIGATION INTO THE OLIGARCH ZLOCHEVSKY, THE OWNER OF BURISMA, AT THE TIME. WE KNOW THIS BECAUSE ON FEBRUARN PROSECUTOR GENERAL OBTAINED A RENEWAL OF A COURT ORDER TO SEIZE THE UKRAINIAN OLIGARCH’S ASSETS. A “KIEV POST ARTICLE” SAYS THE OLIGARCH ZLOCHEVSKY IS SUSPECTED OF, QUOTE, COMMITTING A CRIMINAL OFFENSE OF ILLICIT 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 24, 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 E-MAIL WAS RELEASED UNDER THE FREEDOM OF INFORMATION ACT. THE CONSULTANT EXPLICITLY INVOKED HUNTER BIDEN’S NAME AS A BOARD MEMBER. IN AN E-MAIL 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 NEVELLI ABOUT GETTING A BETTER UNDERSTANDING OF HOW THE U.S. CAME TO THE DETERMINATION THAT THE COUNTRY IS CORRUPT, END QUOTE. TO BE CLEAR, THIS E-MAIL 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 E-MAIL, THE MEETING WAS SET FOR A FEW DAYS LATER. AND LATER THAT MONTH, ON MARCH 29, 2016, THE UKRAINIAN PARLIAMENT FINALLY VOTES TO FIRE THE PROSECUTOR GENERAL. THIS IS THE PROSECUTOR GENERAL INVESTIGATING THE OLIGARCH, OWNER OF BURISMA, ON HIS BOARD HUNTER BIDEN SAT. TWO DAYS AFTER THE PROSECUTOR GENERAL IS VOTED OUT, VICE PRESIDENT BIDEN ANNOUNCE THAT THE U.S. WILL PROVIDE $335 MILLION IN SECURITY ASSISTANCE TO UKRAINE. HE SOON ANNOUNCE THAT THE U.S. WILL PROVIDE $1 BILLION IN LOAN GUARANTEES TO UKRAINE. NOW, LET’S TALK ABOUT ONE OF THE DEMOCRATS’ CENTRAL WITNESSES, AMBASSADOR YOVANOVITCH. IN MAY, 2016, AMBASSADOR YOVANOVITCH WAS NOMINATED TO BE AMBASSADOR IN UKRAINE. HERE IS WHAT HAPPENED WHEN SHE WAS PREPARING FOR HER SENATE CONFIRMATION HEARING. >> CONGRESS WOMAN STEFAN NICK HAD ASKED YOU HOW THE OBAMA STATE DEPARTMENT HAD PREPARED YOU TO ANSWER QUESTIONS ABOUT BURISMA AND HURT BIDEN SPECIFICALLY.DO YOU RECALL THAT? >> YES. >> OUT OF THOUSANDS OF COMPANIES IN THE UKRAINE, THE ONLY ONE YOU RECALL THE OBAMA-BIDEN STATE DEPARTMENT PREPARING YOU TO ANSWER QUESTIONS ABOUT IS THE ONE WHERE THE VICE PRESIDENT’S SON WAS ON THE BOARD. IS THAT FAIR? >> YES. MS. BONDI: SO SHE’S BEING PREPARED TO COME BEFORE ALL OF YOU, ALL OF YOU, AND TALK ABOUT WORLD ISSUES, 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 CLOSE. SEPTEMBER 2016, A UKRAINIAN COURT CANCELS THE ARREST WARRANT OF ZLOCHEVSKY. BURISMA ANNOUNCES ALL LEGAL PROCEEDINGS AGAINST IT AND ZLOCHEVSKY HAVE BEEN CLOSED. BOTH OF THESE THINGS HAPPENED WHILE HUNTER BIDEN SET 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 $1 BILLION IN LOAN GUARANTEES UNLESS SHOKIN WAS FIRED. HEREBY’S THE VICE PRESIDENT. >> I’M NOT GOING TO — 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 A BILLION. I’M GOING TO BE LEAVING HERE. I THINK IT WAS ABOUT SIX HOURS. I’M LEAVING IN SIX HOURS. IF THE PROSECUTOR IS NOT FIRED, YOU’RE NOT GETTING THE MONEY. WELL, SON OF A ABOUT. ITCH. — WELL, SON OF A BITCH. THEY HE GOT FIRED.MS. BONDI: WHAT HE DIDN’T SAY ON THE 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, ON NOVEMBER — 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. APRIL 2019 TO NOVEMBER 2019. DESPITE HIS RESIGNATION FROM THE BOARD, THE MEDIA CONTINUED TO MADE THE ISSUE RELATING TO A POTENTIAL CONFLICT OF INTEREST. ON JULY 22, 2019, “THE WASHINGTON POST” WROTE THAT FIRED PROSECUTOR GENERAL SHOKIN, QUOTE, BELIEVES HIS OUT OFFER WAS — 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 25, 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. SO IF YOU CAN LOOK INTO IT, IT LOOKS HORRIBLE TO ME. END QUOTE. THE HOUSE MANAGERS TALKED ABOUT THE BIDEN AND BURISMA 400 TIMES BUT THEY NEVER GAVE YOU THE FULL PICTURE. 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 AS BASIS TO TALK ABOUT THIS, TO RAISE THIS ISSUE, AND THAT IS ENOUGH. I YIELD MY TIME. MR. SEKULOW: THANK YOU, MR. CHIEF JUSTICE. MAJORITY LEADER McCONNELL, DEMOCRATIC LEADER SCHUMER, HOUSE MANAGERS, MEMBERS OF THE SENATE, THIS WILL BE OUR LAST PRESENTATION BEFORE DINNER. NEXT LAWYER REPRESENTING THE PRESIDENT IS ERIC A FORMER PROSECUTOR AND TRIAL LAWYER AND RAN A NATURAL GAS COMPANY IN THE UNITED STATES.HE IS GOING TO DISCUSS ADDITIONAL EVIDENCE THE HOUSE MANAGERS IGNORED OR MISSTATED AND HOW OTHER PRESIDENTS MIGHT HAVE MEASURED UP UNDER THIS NEW IMPEACHMENT STANDARD. MR. HERSCHMANN: MR. CHIEF JUSTICE, MEMBERS OF THE SENATE, I AM ERIC HERBMAN. I HAVE THE HONOR AND PLEASURE 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, 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 PRETZEL ZELL ZELENSKY — PRESIDENT ZELENSKY ABOUT ON THE JULY 25 CALL COULD NOT HAVE BEEN IN THE COUNTRY’S INTEREST, BECAUSE THEY WERE, QUOTE-UNQUOTE, DISCREDITED ENTITLEMENT THEY SAY THE INVESTIGATIONS HAD BEEN DEBUNKED, THEY WERE SHAM INVESTIGATIONS.SO NOW WE HAVE THE REQUEST, WERE THEY REALLY? THE HOUSE MANAGERS IN THE OVER 21 HOURS OF THEIR REPETITIVE PRESENTATION NEVER FOUND THE TIME TO SUPPORT THOSE CONCLUESRY 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 WERE ANY SUCH INVESTIGATIONS CONDUCTED, WHEN WERE THE RESULTS PUBLISHED AND MUCH MORE IS LEFT UNANSWERED. ATTORNEY GENERAL WON DID — ATTY GENERAL BONDI WENT FLEW MUCH OF WHAT WE KNOW ABOUT BURISMA. THERE IS NO QUESTION THE 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 IN THIS ADDITIONAL EVIDENCE YOU CAN JUDGE FOR YOURSELF WHETHER THE CONDUCT WAS SUSPECT. 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. THE OTHER ISSUE WAS WHAT MANAGER SCHIFF CALLED THE BASELESS 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, I.T. THE TEARY 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 EX-AUTOGRAPHIVE WORK — — EXHAUST I HAVE WORK AT A COST OF $32 MILLION, FOUND NO CONSPIRACY AND NO EVIDENCE OF RUSSIAN COLLUSION WITH THE TRUMP CAMPAIGN. AS WE WILL SEE, THE DEMOCRATS ARE AS WRONG NOW ABOUT THE ARTICLES OF IMPEACHMENT AS THEY WERE IN 2016 ABOUT THE RUSSIAN COLLUSION.AS TO THE OTHER INCIDENT PRESIDENT OBAMA MENTIONED, THE ONE CONCERNING THE UKRAINIAN GAS COMPANY, BURISMA, THIS IS SOMETHING UNDISSPEWS DISPUTED, 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 U.S. FOREIGN POLICY. HERE IS HOW ONE KNOWLEDGEABLE OBSERVER OF UKRAINE PUT IT IN 2015. QUOTE, IT’S NOT ENOUGH TO SET UP A NEW ANTICORRUPTION BUREAU AND ESTABLISH A SPECIAL PROSECUTOR FIGHTING CORRUPTION. THE OFFICE OF THE GENERAL PROSECUTOR DESPERATELY NEEDED REFORM. THE JUDICIARY SHOULD BE OVERHAULED. THE ENERGY SECTOR NEEDS TO BE COMPETITIVE. RULED BY MARKET PRINCIPLES NOT SWEETHEART DEALS. IT IS 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 PAID HUNTER BIDEN MILLIONS OF DOLLARS TO SERVE ON THE BOARD OF DIRECTORS. HE HAD NO EXPERTISE OR EXPERIENCE IN THE NATURAL GAS INDUSTRY. HE HAD NO KNOWN EXPERTISE IN CORPORATE GOVERNANCE NOR ANY EXPORT TEES IN UKRAINIAN LAW. HE DOESN’T, SO FAR AS WE KNOW, SPEAK UKRAINIAN. 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 THE 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 INQUIRY ABOUT THIS WOULD BE A SHAM, NOTHING TO SEE HER. BUT TELLINGLY, HUNTER BIDEN’S ATTORNEY ON OCTOBER 13, 2019, ISSUE ADD STATEMENT ON HIS BEHALF. HE INDICATED THAT IN APRIL 2014 HUNTER WAS ASKED TO JOIN THE BOARD AT BURISMA.THEN STATES HUNTER STEPPED OFF BURISMA’S BOARD IN APRIL 2019. 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 FOR 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 HAVE 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. 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 AND 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? IN AN INTERVIEW WITH ABS IN OCTOBER OF — ABC IN OCTOBER OF LAST YEAR, HUNTER BIDEN SAID HE WAS ON THE BOARD TO FOCUS ON TRANSPARENCY. >> BOTTOM LINE, I KNOW I WAS COMPLETELY QUALIFIED TO HEAD UP THE CORPORATE GOVERNANCE AND TRANSPARENCY AS A GOVERNOR ON THE BOARD. AND THAT’S ALL THAT I FOCUSED ON.MR. HERSCHMANN: WHEN ASKED HOW MUCH MONEY BURISMA WAS PAYING HIM, HE RESPONDED HE DOES NOT WANT TO OPEN HIS KOMONO AND DISCLOSE HOW MUCH. AS WE NOW KNOW HE WAS BEING FAR MORE THAN WHAT WAS IN THE PUBLIC RECORD. >> YOU WERE PAID $50,000 A MONTH? >> I’M A PRIVATE CITIZENS. — CITIZEN. I DON’T HAVE TO OPEN MY KOMONO AS TO HOW MUCH MONEY I MADE OR DIDN’T MADE. IT WAS ALL REPORTED. MR. HERSCHMANN: HOW MUCH WAS THE VICE PRESIDENT’S SON PAID.WAS IT BASED ON HIS UNDERSTANDING OF THE NATURAL GAS INDUSTRY IN UKRAINE? WAS HE GOING TO DISCUSS HOW HE 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. SO WHAT WAS THE REASON? I THINK WE DO NOT LOOK — DO NOT NEED TO LOOK ANY FURTHER, THAT THE EXPLANATION THAT HUNTER BIDEN GAVE DURING THE ABC INTERVIEW WHEN HE WAS ASKED WHY, HERE’S WHAT HE HAD TO SAY. >> IF YOUR LAST NAME WASN’T BIDEN, DO YOU THINK YOU WOULD HAVE BEEN ASKED TO BE ON THE BOARD OF BURISMA? >> I DON’T KNOW.I DON’T KNOW. PROBABLY NOT. I DON’T THINK THERE’S A LOT OF THINGS THAT WOULD HAVE HAPPENED IN MY LIFE IF MY LAST NAME WASN’T BIDEN. MR. HERSCHMANN: THEN HUNTER BIDEN AND HIS LAWYER COULD THE NO KEEP THEIR STORY STRAIGHT. COMPARE THE PRESS RELEASE ISSUED BY BURISMA ON MAY 12, 2014, WITH HUNTER BIDEN’S LAWYER STATEMENT ON OCTOBER 13, 2019. THE MAY 2014 PRESS RELEASE BEGINS, R., FOR HUNTER BIDEN, WILL BE IN CHARGE OF HOLDINGS’ LEGAL UNIT. HE WAS GOING TO BE IN CHARGE OF A GAS COMPANY OWNED BY AN OLIGARCH’S LEGAL UNIT. 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 HUNDREDS OF DOLLARS? WHO KNOWS. WHAT WERE THEY LOOKING TO HIDE? SO MUCH FOR HIS CORPORATE GOVERNANCE AND TRANSPARENCY. 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 INTEREST, NOTHING AT ALL TO DO WITH OUR VICE PRESIDENT, NOTHING AT ALL TO DO WITH THE STATE DEPARTMENT.IT WAS SIMPLY PRIVATE CITIZEN HUNTER BIDEN DOING HIS BUSINESS. IT WAS COINCIDENTAL THAT IN THE ENERGY SECTOR THAT HIS FATHER SAID WAS CORRUPT. BUT WE HAVE A DOCUMENT HERE AGAIN, SOMETHING THAT HOUSE MANAGER — HOUSE MANAGERS DID NOT SHOW YOU OR EVEN PUT BEFORE THE HOUSE BEFORE VOTING THESE BASELESS ARTICLES OF IMPEACHMENT. IF YOU LOOK AT THIS E-MAIL, IT’S AN E-MAIL FROM CHRIS HEINZ AND AS ATTORNEY BONDI 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 SON AND VICE PRESIDENT’S SON ARE IN BUSINESS TOGETHER. IT WAS SENT ON MAY 13, 2014, TO THE OFFICIAL GOVERNMENT E-MAIL ADDRESSES OF TWO SENIOR PEOPLE AT THE STATE DEPARTMENT.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 E-MAIL IS NOT CORPORATE TRANSPARENCY, IT’S NOT CORPORATE GOVERNANCE, IT’S NOT HERE’S A HEADS UP, THE SUBJECT LINE IS UKRAINE. CHRIS HEINZE UNDERSTOOD THE SENSE ACTIVITY TO OUR — SENSITIVITY TO OUR U.S. FOREIGN POLLS. AND WHAT DOES HE SAY ABOUT DEVON ARCHER AND HUNT BIDEN. APPARENTLY THEY BOTH JOINED THE BOARD OF BURISMA. A PRESS REPORT WENT OUT. I CAN’T SPEAK AS TO WHY THEY WANTED TO. WHAT IS THE MOST TELLING THING ABOUT THIS? IT IS CLEAR THAT THE CHIEF OF STAFF AND SPECIAL ASSISTANT TO THE SECRETARY ALREADY KNEW WHO DEVON WAS BECAUSE MR.HEINZE DID NOT INCLUDE HIS LAST NAME. IT’S JUST DEVON. AND THEY OBVIOUSLY KNEW WHO HUNTER WAS BECAUSE, AGAIN, IT’S HUNTER BIDEN. THIS IS CHRIS HIERNZ SAYING, — HEINZE SAYING, I CAN’T SPEAK AS TO WHY THEY JOINED THE BOARD OF BURISMA. NOT THAT THEY ARE GOING THERE FOR CORPORATE GOVERNMENT, NOT TO ENHANCE TRANSPARENCY, NOT TO ENHANCE U.S. POLICY, NOT THAT THEY ARE THERE TO ENSURE THAT BOARDS OF DIRECTORS COMPENSATION AND BENEFITS ARE PUBLICLY DISCLOSED. NOTHING LIKE THIS 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 UKRAINIAN GAS COMPANY. INSTEAD, MR. HEINZE IS PLAINLY GOING ON THE RECORD TO REPORT WHAT HUNT AND DEVON WERE DOING THROUGH OFFICIAL CHANNELS AND TO TAKE PAINS TO DISASSOCIATE HIMSELF FROM WHAT THEY WHEN DOING. AND WHAT DID THE STATE DEPARTMENT DO WITH THIS INFORMATION THAT THE SECRETARY OF STATE STEPSON THOUGHT THEY NEEDED TO KNOW? APPARENTLY NOTHING. THEY DID NOT TELL MR. HEINZE TO STAY AWAY, THEY DID NOT TELL MR.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. 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 IN 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? 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 AND INDEED CONFERRED THEM INTO — CONNERSED THEM INTO FIRING THE STATE PROSECUTOR WHO WAS THE VERY COMPANY THAT PAID MILLIONS OF DOLLARS TO HIS SON.HE BRAGGED HE GAVE THEM SIX HOURS TO FIRE THE PROSECUTOR OR HE WOULD CUT OFF $1 BILLION IN U.S. LOAN GUARANTEES. >> I SAID I’M — 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 A BILLION DOLLARS. I’M GOING TO BE LEAVING HERE, IN, WHAT, SIX HOURS, IF THE PROSECUTOR’S NOT FIRED, WELL, SON OF A B ITCH, HE WAS FIRED AND THEY PUT IN SOMEBODY WHO WAS SOLID AT THE TIME. MR. HERSCHMANN: ARE WE REALLY TO BELIEVE THAT IT IS THE POLICY OF OUR GOVERNMENT TO PAY THE BILLION DOLLARS 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 THEIR RISKS 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 INTEREST AND THEREFORE THE PRESIDENT MUST IMMEDIATELY BE REMOVED FROM OFFICE. YET, THEY ALSO ARGUE THAT IT WAS THE OFFICIAL POLICY OF OUR COUNTRY TO WITH HOLD A BILLION DOLLARS UNLESS ONE INDIVIDUAL WAS FIRED WITHIN A CERTAIN MATTER OF HOURS. WAS THAT REALLY OR COULD IT EVER BE OUR UNITED STATES POLICY? 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? AND 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? 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 MIDDLE MEN WHO RIPPED OFF THE PEOPLE. HE RAILED AGAINST THIS BEHAVIOR FOR A SELECT FEW PROFIT FROM SO MANY SWEETHEART DEALS THAT HAS CHARACTERIZED THAT COUNTRY FOR SO LONG. AND ON HIS 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.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 $1 MILLION 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 HOLLOW? ACCORDING TO THE HOUSE MANAGERS, THE ANSWER IS APPARENTLY, YES, THEY WERE EMPTY WORDS AT LEAST WHEN IT CAME TO ANYONE QUESTIONING HIS SON’S OWN SWEETHEART DEAL, HIS OWN SON’S DEAL WITH UKRAINE’S CORRUPTION AND OLIGARCHY. AGAIN TO RAISE MANAGER SCHIFF’S OWN QUESTION, WHAT KIND OF MESSAGE DID THIS SEND TO U.S.GOVERNMENT OFFICIALS, YOUR FAMILY CAN ACCEPT MONEY IN PHONE GOVERNMENTS? YOU CAN PAY FAMILY MEMBERS OF OUR HIGHEST GOVERNMENT INITIALS AND — OFFICIALS AND NO ONE IS ALLOWED TO ASK QUESTIONS? WHAT WAS GOING ON? WE HAVE TO JUST ACCEPT NOW THE HOUSE MANAGERS CONCLUSION SPP ARY STATEMENTS. AND 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? AND WHEN IT FINALLY APPEARED THAT A TRUE UKRAINIAN CORRUPTION FIGHTER ASSUMED THE PRESIDENCY, PRESIDENT TRUMP WAS NOT SUPPOSED TO, WAS NOT PERMITTED TO FOLLOW UP ON VICE PRESIDENT BIDEN’S OWN WORDS ABOUT FIGHTING CORRUPTION AND TRY TO MAKE THOSE WORDS SOMETHING OTHER THAN EMPTY. AND ACCORDING TO THE HOUSE MANAGERS, UKRAINIAN CORRUPTION IS NOW ONLY A PRIVATE INTEREST. IT NO LONGER IS A SERIOUS IMPORTANT CONCERN FOR OUR COUNTRY. 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 AND 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.THINK ABOUT THIS FOR A MOMENT. THE CALL IS 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. AND 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? 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 ARE 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 JOB 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 MANAGERS’ 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 COULD GET THIS PERSONAL BENEFIT AND IT WAS NOT — THAT WAS NOT IN OUR COUNTRY’S INTEREST.THE LOGIC IS FLAWED. IT IS COMPLETELY ILLOGICAL BECAUSE THAT IS NOT WHAT HAPPENED. AND THAT IS WHY MANAGER SCHIFF RAN AWAY FROM THE ACTUAL TRANSCRIPT. THAT IS WHY HE CREATED HIS OWN FAKE CONVERSATION. BUT I WOULD LIKE TO JUST ADDRESS ANOTHER POINT FOR THE TRANSCRIPT OF THE JULY 25 PHONE CALL. THE HOUSE MANAGERS ALLEGED THAT AN OVAL OFFICE MEETING WITH THE PRESIDENT WAS CRITICAL TO THE NEWLY ELECTED UKRANIAN PRESIDENT BECAUSE IT WOULD SIGNAL TO RUSSIA, WHICH HAD INVADED UKRAINE IN 2014 AND STILL OCCUPIED UKRANIAN TERRITORY, THAT UKRAINE COULD — I’M SORRYD 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 UKRANIANS 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. BUT LET’S SEE WHAT PRESIDENT 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 THE TIME TO SAY SO, NOT TO SUGGEST ANOTHER VENUE.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 SUPPLIED TO UKRAINE AND THE SANCTIONS THAT PRESIDENT TRUMP ENFORCED AGAINST THE RUSSIANS. THAT IS WHAT THE TRANSCRIPT OF THE JULY 25 CALL DEMONSTRATES. LET US NOW CONSIDER WHAT PRESIDENT 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, QUOTE, THE U.S. MUST SUPPLY UKRAINE WITH THE MEANS TO DEFEND ITSELF, CLOSE QUOTE, 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. 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 WEAPONS SYSTEM.THE VERY NEXT DAY THIS SENATE PASSED A UNANIMOUS RESOLUTION URGING THE PRESIDENT TO PRIORITIZE AND EXPEDITE THE PROVISION OF DEFENSIVE LETHAL AND NONLETHAL MILITARY ASSISTANCE TO UKRAINE CONSISTENT WITH THE UNITED STATES NATIONAL INTEREST AND POLICIES. AS ONE SENATOR HERE STATED IN MARCH OF 2015, PROVIDING NONLETHAL EQUIPMENT LIKE NIGHT VISION GOGGLES IS ALL WELL AND GOOD. BUT GIVING THE UKRANIANS 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 UKRANIANS.BY CONTRAST, WHAT DID PRESIDENT 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 PRESIDENT 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 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. MANAGER SCHIFF, WELL, THERE HE GOES AGAIN, HE’S PUTTING WORDS IN THE PRESIDENT’S MOUTH THAT WERE NEVER THERE.LOOK AT THE TRANSCRIPT OF THE JULY CALL. PRESIDENT TRUMP NEVER ASKED ABOUT ANY ANNOUNCEMENT ABOUT ANY TYPE OF INVESTIGATION. AND PRESIDENT ZELENSKY TELLS PRESIDENT TRUMP, QUOTE, 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 IS PRECISELY THE DEMOCRATS WHO POLITICIZED 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 UKRAINE COMPANY OWNED BY A CORRUPT UKRAINE OLIGARCH TO THE SON OF THE SECOND-HIGHEST OFFICEHOLDER IN OUR LAND WHO WAS SUPPOSED TO BE IN CHARGE OF FIGHTING CORRUPTION IN UKRAINE, THEY’RE CALLING THAT TYPE OF INQUIRY A SHAM.DEBUNKED. BUT THERE’S NEVER BEEN AN INVESTIGATION, SO HOW COULD IT BE A SHAM? SIMPLY BECAUSE THE HOUSE MANAGERS SAY SO? 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 ZELENSKY HAD BEEN ELECTED IN APRIL ON AN ANTICORRUPTION PLATFORM. IN JULY, RUNNING ON THE SAME PLATFORM, HIS PARTY TOOK CONTROL OF THE UKRANIAN PARLIAMENT. THAT MADE IT THE OPPORTUNE TIME TO RAISE THE ISSUE, BECAUSE FINALLY THERE WAS A RECEPTIVE GOVERNMENT IN UKRAINE COMMITTED 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 RAISED YEARS BEFORE.TWO OTHER THINGS. IN LATE JUNE, ABC NEWS RAN A STORY ENTITLED “HUNTER BIDEN’S FOREIGN DEALS: DID JOE BIDEN’S SON PROFIT FROM HIS FATHER’S POSITION AS VICE PRESIDENT” 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 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, QUOTE, LEVERAGING ACCESS FOR HIS BENEFIT, CLOSE QUOTE. 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.EVERYONE WHO WORKS FOR HIM HAS BEEN SCREAMED AT, A 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 SUSPECT CONDUCT ARE SUPPRESSED OR DISMISSED AS ILLEGITIMATE BECAUSE SOMEONE IS INTIMIDATED OR SCREAMS AT OR IS JUST TOO IMPORTANT? NO, THAT IS PRECISELY WHEN AN INVESTIGATION IS MOST IMPORTANT. NOW LAST THURSDAY NIGHT MANAGER JEFFRIES PROVIDED US WITH THE DEMOCRATS’ STANDARD FOR ABUSE OF POWER. HE SAID, QUOTE, ABUSE OF 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 WILL THESE SAME DEMOCRATS’ CALLS FOR IMPEACHMENT WHEN UNCONTROVERTED SMOKING GUN EVIDENCE EMERGED WHEN PRESIDENT OBAMA HAD VIOLATED THEIR STANDARD? THE AMERICAN PEOPLE UNDERSTAND THIS BASIC NOTION AS EQUAL JUSTICE UNDER THE LAW. IS AS AMERICAN AS APPLE PIE. 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 MEDVEDEV TO DISCUSS NATIONAL SECURITY INTERESTS, MILITARY DEFENSE. HOW IMPORTANT WAS THE ISSUE OF 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 INTERCEPTOR AND DEVELOPMENT, QUOTE, 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. 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. DURING THE NUCLEAR SECURITY SUMMIT, PRESIDENT OBAMA HAD A PRIVATE EXCHANGE WITH RUSSIAN PRESIDENT MEDVEDEV THAT WAS PICKED UP ON A HOT MICROPHONE. >> I UNDERSTAND. I STAND WITH YOU. MR. HERSCHMANN: PRESIDENT OBAMA SAID ON ALL THESE ISSUES, BUT PARTICULARLY MISSILE DEFENSE, THIS, 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 TO VLADIMIR.AS WE ALL KNOW, IT’S VLADIMIR PUTIN. AS YOU JUST SAW IN 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 MANAGERS’ THREE-PART TEST FOR ABUSE OF POWER. 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, QUOTE, MISS ILDEFENSE CAN — MISSILE DEFENSE CAN BE SOLVED. WHAT ELSE CAN 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 RUSSIAN — WITH THE RUSSIANS TO FURTHER HIS OWN ELECTION CHANCES IN 2012. THREE, WHILE IGNORING OR INJURING OUR NATIONAL INTERESTS, HAS PRESIDENT OBAMA’S DEFENSE — 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 THE NATIONAL INTEREST. 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 PRESIDENT OBAMA REALIZED THAT THE MICROPHONE WAS ON, THAT THERE WAS A HOT MIKE. ONE COULD EASILY SUBSTITUTE PRESIDENT OBAMA’S 2012 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 THROUGH — HE DID SO THROUGH A SCHEME OR COURSE OF CONDUCT THAT INCLUDED SOLICITING THE GOVERNMENT OF RUSSIA TO GIVE HIM SPACE, QUOTE, UNQUOTE, ON 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. CLOSE QUOTE. 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 IN POLAND, YET HE CRITICIZED SENATOR ROMNEY DURING THE 2012 PRESIDENTIAL CAMPAIGN WHEN SENATOR ROMNEY SAID RUSSIA WAS THE GREATEST GEO POLITICAL THREAT TO THE U.S. >> I’M GLAD YOU RECOGNIZE ALKI TODAY IS A THREAT. A FEW MONTHS AGO WHEN YOU WERE ASKED WHAT THE BIGGEST THREAT FACING AMERICA WAS, YOU SAID RUSSIA. NOT ALKI TODAY. YOU SAID RUSSIA, IN THE 1980’S OR NOW, CALLING TO ASK THEIR FOREIGN POLICY BACK. THE COLD WAR HAS BEEN OVER FOR 20 YEARS. MR. HERSCHMANN: NOW, WHEN IT’S 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 EX-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 OF 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. 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 THE SUPPOSED TERRIBLE IMMINENT THREAT TO OUR NATIONAL SECURITY. WHAT DID THEY DO? >> THE URGENCY. >> TIMING IS DRIVEN BY THE URGENCY. >> URGENCY. >> NOTHING COULD BE MORE URGENT. >> THE URGENCY. >> URGENT. AN URGENT. >> THERE’S AN URGENCY TO THIS. >> WE MUST MOVE SMOOTHLY. >> WE DON’T HAVE TIME TO SCREW AROUND. >> IT’S ABOUT URGENCY. >> HOUSE SPEAKER PELOSI STILL HOLDING ON TO THE ARTICLES OF IMPEACHMENT. MR. HERSCHMANN: 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 13, 2019. FRIDAY THE 13th. WENT ON VACATION AND FINALLY DECIDED AFTER ONE OF THEIR DEMOCRATIC PRESIDENTIAL DEBATES HAD FINISHED AND AFTER THE B.C.S. FOOTBALL CHAMPIONSHIP GAME THAT IT WAS TIME TO DELIVER THEM. WHAT HAPPENED TO THEIR NATIONAL SECURITY INTERESTS 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 HE IS 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 COMPLAINED ABOUT THE JUDICIAL REVIEW PROCESS SITTING IN THIS CHAMBER BEFORE THE CHIEF JUSTICE OF THE UNITED STATES SUPREME COURT. A JUDICIARY REVIEW IN WHICH THE JUDGE AGREED TO AN EXPEDITED SCHEDULE. EVEN THAT WAS NOT GOOD ENOUGH FOR THEM WHEN THEY ISSUED THE SUBPOENAS. ONE OF THE LAWYERS FOR THE SUBPOENAED WITNESSES WROTE TO THE HOUSE GENERAL COUNSEL, QUOTE, WE ARE DISMAYED THAT THE HOUSE COMMITTEES HAVE CHOSEN NOT TO JOIN US IN SEEKING RESOLUTION FROM THE JUDICIAL BRANCH 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 CHAIR SAID THE HOUSE CHAIRMAN MR. SCHIFF AND MR. NADLER ARE MISTAKEN TO SAY THE LAWSUIT IS INTENDED TO DELAY OR OTHERWISE OBSTRUCT THE COMMITTEES. VITAL INVESTIGATORY WORK. HE CONTINUED, NOR HAS THIS LAWSUITEN COORDINATED IN ANY WAY WITH THE WHITE HOUSE ANY MORE THAN 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’RE 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 EVEN ISSUED SUBPOENAS. IN THEIR MINDS THAT IS IMPEACHABLE. MANAGER NADLER SPOKE ELOQUENTLY BACK BEFORE THE HOUSE JUDICIARY COMMITTEE HEARING IN DECEMBER OF 1998. HE SAID, QUOTE, 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 INTO 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 CAUSED DIVISIVENESS AND BITTERNESS IN OUR COUNTRY.THAT IS WHAT A PARTISAN IMPEACHMENT LEADS TO. SADLY, WHILE MANAGER NADLER WARNED AGAINST DIVISIVENESS AND BITTERNESS, THE HOUSE DID NOT FOLLOW HIS ADMONITION. THEY DID NOT HEED HIS ADVICE. THAT’S ONE OF THE REASONS WHY WE’RE SITTING HERE TODAY WITH ARTICLES OF IMPEACHMENT THAT ARE NOT FOUNDED IN OUR CONSTITUTION OR THE EVIDENCE AND ARE BROUGHT SIMPLY FOR PARTISAN POLITICS. 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 TO 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 HAD 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 IS A SHAME. WE ON THE OTHER HAND TRUST OUR FELLOW AMERICANS TO CHOOSE THEIR PRESIDENT. CHOOSE YOUR CANDIDATE. LET SENATORS THAT ARE HERE WHO ARE TRYING TO BECOME THE DEMOCRATIC NOMINEE TRY TO WIN THAT ELECTION AND LET THE AMERICAN PEOPLE CHOOSE.MAYBE, MAYBE THEY’RE CONCERNED THAT THE AMERICAN PEOPLE LIKE HISTORICALLY LOW UNEMPLOYMENT. MAYBE THE AMERICAN PEOPLE LIKE THAT THEIR 401(K) 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 IN 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. IF YOU THINK THE — 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, QUOTE-UNQUOTE, WORST NIGHTMARE AND THAT THEY WOULD BE HORRIFIED.IN FACT, SADLY, SADLY, IT IS THE HOUSE MANAGERS’ CONDUCT IN BRINGING THESE BASELESS ARTICLES OF IMPEACHMENT THAT WOULD CLEARLY BE THEIR AND OUR WORST NIGHTMARE. THANK YOU. THE PRESIDING OFFICER: THE MAJORITY LEADER IS RECOGNIZED. MR. McCONNELL: MR. CHIEF JUSTICE, I THINK WE ARE LOOKING AT A 45-MINUTE BREAK FOR DINNER. THE PRESIDING OFFICER: WITHOUT OBJECTION, SO ORDERED. RECESS: DERBY TEST. DERSHOWITZ TEST DERSHOWITZ TEST. RECESS: THE PRESIDING OFFICER: THE SENATE WILL COME TO ORDER. MR. SEKULOW: MR. CHIEF JUSTICE, MEMBERS OF THE SENATE, HOUSE MANAGERS, WE’RE GOING TO DO TWO THINGS THIS EVENING. WE’RE GOING TO FIRST HEAR FROM FORMER INDEPENDENT COUNSEL ROBERT RAY. HE’S GOING TO DISCUSS ISSUES OF HOW HE WAS INVOLVED IN THE INVESTIGATIONS, THE LEGAL ISSUES, SOME OF THE HISTORY OF HOW THAT WORKS, AND THEN WE WILL CONCLUDE THIS EVENING WITH A PRESENTATION FROM PROFESSOR DERSHOWITZ.SO WITH THAT, I WOULD LIKE TO YIELD MY TIME, MR. CHIEF JUSTICE, TO ROBERT RAY. MR. RAY: MR. CHIEF JUSTICE, MEMBERS OF THE SENATE, DISTINGUISHED HOUSE MANAGERS, AND MAY IT PLEASE THIS COURT OF IMPEACHMENT, I STAND BEFORE YOU TODAY IN DEFENSE OF MY FELLOW AMERICANS WHO IN NOVEMBER, 2016, ELECTED DONALD TRUMP TRUMP TO SERVE THE PEOPLE AS THEIR PRESIDENT. THEIR REASONS FOR THAT VOTE WERE AS VARIED AS ANY IMPORTANT DECISIONS ARE, BUT THEIR COLLECTIVE JUDGMENT, ACCEPTED AS LEGITIMATE UNDER OUR CONSTITUTION, IS DESERVING OF MY RESPECT AND YOURS. FOR ONLY THE THIRD TIME IN OUR NATION’S HISTORY, THE SENATE IS CONVENED TO TRY THE PRESIDENT OF THE UNITED STATES ON ARTICLES OF IMPEACHMENT.THOSE ARTICLES DO NOT ALLEGE CRIMES. THE CONSTITUTION, THE FRAMERS’ INTENT, AND HISTORICAL PRACTICE ALL DICTATE THAT WELL-FOUNDED ARTICLES OF IMPEACHMENT ALLEGE BOTH THAT A HIGH CRIME HAS BEEN COMMITTED AND THAT, AS SUCH, REMOVAL FROM OFFICE IS WARRANTED ONLY WHEN SUCH AN OFFENSE ALSO CONSTITUTES AN ABUSE OF THE PUBLIC TRUST. THAT IS, IN THE CASE OF THE PRESIDENT, A VIOLATION OF HIS OATH OF OFFICE. BOTH ARE REQUIRED, AND NEITHER ONE BY CLEAR AND UNMISTAKABLE EVIDENCE IS SHOWN HERE BY THESE ARTICLES OF IMPEACHMENT. I AM HERE THIS EVENING IN THIS CHAMBER DISTINCTLY PRIVILEGED TO REPRESENT AND DEFEND THE PRESIDENT OF THE UNITED STATES ON THE FACTS, ON THE LAW, AND ON THE CONSTITUTIONAL PRINCIPLES THAT MUST BE PARAMOUNT TO YOU, MEMBERS OF THE SENATE, IN DECIDING THE GREAT QUESTION OF WHETHER THESE ARTICLES WARRANT, WITH OR WITHOUT WITNESSES, THE REMOVAL OF THE PRESIDENT FROM OFFICE. BECAUSE THERE IS AND CAN BE NO BASIS IN THESE ARTICLES ON WHICH THE SENATE CAN OR SHOULD CONVICT THE PRESIDENT ON WHAT IS ALLEGED, THE PRESIDENT MUST NOT BE REMOVED FROM OFFICE. THAT JUDGMENT IS RESERVED TO THE PEOPLE IN THE ORDINARY COURSE OF ELECTIONS, THE NEXT OF WHICH IS JUST OVER NINE MONTHS AWAY.40 YEARS AGO, IN 1980, I FIRST CAME TO CAPITOL HILL AS A LEGISLATIVE INTERN FOR A CONGRESSMAN WHO ONLY SIX YEARS EARLIER HAD PLAYED AN IMPORTANT AND CRITICAL ROLE IN THE IMPEACHMENT PROCEEDINGS AGAINST PRESIDENT RICHARD NIXON. THE CONGRESSMAN OF WHOM I SPEAK WHO I CAME TO RESPECT IMMENSELY SERVED THEN AND IN 1974 ON THE HOUSE JUDICIARY COMMITTEE. HE WAS TASKED IN THE SUMMER OF 1974 TOGETHER WITH HIS COLLEAGUES IN EVALUATING AND VOTING ON, AS MOST OF THE HOUSE MANAGERS HERE HAVE, ARTICLES OF IMPEACHMENT.THOSE ARTICLES INCLUDED THE CRIME OF OBSTRUCTION OF JUSTICE, ABUSE OF POWER, AND OBSTRUCTION OF CONGRESS. BUT UNLIKE HOW HOUSE MANAGERS AND INDEED THE ENTIRE HOUSE 45 YEARS LATER IN DECEMBER, 2019, PROCEEDED HERE, BIPARTISAN CONSENSUS IN 1974 AMONG BOTH HOUSE DEMOCRATS AND HOUSE REPUBLICANS WAS THE ORDER OF THE DAY. INDEED, IT BECAME APPARENT THEN THAT NARROW, PARTISAN VIEWS ASIDE, THE HOUSE JUDICIARY COMMITTEE WOULD THE STEP INTO THE BREACH ONLY INSOFAR AS EVIDENCE OF PRESIDENTIAL CONDUCT WARPED IT. THE TAPES OF OVAL OFFICE CONVERSATIONS INVOLVING THE PRESIDENT PROVIDED THAT EVIDENCE. THE SUPREME COURT, IN FACT, OVERRULED THE EXECUTIVE PRIVILEGE AND ORDERED TAPES TO THE HOUSE JUDICIARY COMMITTEE. AS A RESULT, THREE DAYS LATER, THE HIGH CRIME OF OBJECTION OF JUSTICE, TETHERED TO A SECOND ARTICLE OF IMPEACHMENT TWO DAYS AFTER THAT ALLEGING ABUSE OF POWER, WAS APPROVED BY THE HOUSE JUDICIARY COMMITTEE BY A VOTE OF 27-11 AND 28-10, RESPECTIVELY. THE SECOND ARTICLE OF IMPEACHMENT ALLEGED, AMONG OTHER THINGS, UNLAWFUL USE OF THE C.I.A. AND ITS RESOURCES, INCLUDING COVERT ACTIVITY IN THE UNITED STATES AND INTERFERENCE WITH THE LAW ENFORCEMENT ACTIONS OF THE F.B.I.TO ADVANCE THE COVER-UP; THAT IS THE CRIMINAL CONSPIRACY TO OBSTRUCT JUSTICE CHARGED IN THE FIRST ARTICLE OF IMPEACHMENT. THE CRIMES ALLEGED WERE SERIOUS YOU INVOLVING UNLAWFUL ELECTRON IC SURVEILLANCE OF AN OPPOSING POLITICAL PARTY, PAYING HUSH MONEY TO BURGLARS AND OTHER COCONSPIRATORS TO SILENCE COOPERATION WITH LAW ENFORCEMENT, AND ATTEMPTS TO ALTER TESTIMONY UNDER OATH. SIX REPUBLICAN HOUSE COMMITTEE MEMBERS JOINED ALL 21 DEMOCRATS IN SUPPORTING THOSE TWO ARTICLES. MY CONGRESSMAN WAS AMONG THOSE SIX REPUBLICAN HOUSE MEMBERS. ANOTHER ONE OF THE SIX WAS THEN A YOUNG CONGRESSMAN FROM MAINE WHO LATER BECAME A MEMBER OF THIS BODY, SERVING WITH DISTINCTION AS A SENATOR AND LATER AS PRESIDENT BILL CLINTON’S SECRETARY OF DEFENSE. THAT YOUNG CONGRESSMAN WAS BILL COHEN. A THIRD OF THE SIX WAS REPRESENTATIVE CALDWELL BUTLERS A REPUBLICAN FROM VIRGINIA, WHOSE PAPERS ARE HOUSED AT WASHINGTON AND LEE UNIVERSITY IN LEXINGTON, VIRGINIA, IN THE STATE WHERE I GREW UP AND WHERE I LATER WENT TO LAW SCHOOL.TOGETHER THESE SIX REPUBLICANS MADE HISTORY. THEY DID SO WITH NO SENSE OF TRIUMPH. IN TODAY’S PARLANCE, NO FIST BUMPS, BUT ONLY IN THE WORDS OF MY CONGRESSMAN, WITH DEEP RELUCTANCE AND ONLY BECAUSE THE EVIDENCE WAS CLEAR AND UNMISTAKABLE OF UNLAWFUL ACTIVITIES OF THE PRESIDENT IN A CRIMINAL COVER-UP THAT WAS, IN THE CONCLUDING LANGUAGE OF THE FIRST ARTICLE, CONTRARY TO HIS TRUST AS PRESIDENT. AS TO THE THIRD ARTICLE IN THE NIXON IMPEACHMENT, THAT ARTICLE CHARGING OBSTRUCTION OF CONGRESS DID NOT ENJOY BIPARTISAN SUPPORT.BUT INSTEAD WAS VOTED ON BY THE HOUSE JUDICIARY COMMITTEE ALONG PARTY LINES BY A VOTE OF 21-17. REPUBLICANS OBJECTED THEN TO THE THIRD ARTICLE IN THE FACE OF THE PRESIDENT’S GOOD-FAITH PRIOR CLAIM TO EXECUTIVE PRIVILEGE BY WITHHOLDING CERTAIN EVIDENCE UNTIL SUCH TIME AS THE MATTER WAS DEFINITIVELY RESOLVED BY THE SUPREME COURT. MY POINT IN MENTIONING THESE THREE VOTES BY THE HOUSE JUDICIARY COMMITTEE IS SIMPLY THIS — COUNT VOTES AND DO THE MATH. I UNDERSTAND THAT YOU ALL HAVE BEEN DEPRIVED OF YOUR PHONES AND, THUS, A CALCULATOR APP, SO I WILL DO IT FOR YOU. H-A 27-11 VOTE WAS NOT ONLY BIPARTISAN, AS I HAVE INDICATED, BUT OVERWHELMINGLY SO, INDEED, OVER 70%. THAT IS TO SAY, GREATER THAN A TWO-THIRDS SUPERMAJORITY. THAT VOTE SENT A POWERFUL SIGNAL TO THE FULL HOUSE AND INDEED THE SENATE THAT IMPEACHMENT WAS OVERWHELMINGLY BIPARTISAN AND, THEREFORE, POLITICALLY AND LEGALLY LEGITIMATE.PRESIDENT NIXON’S FATE WAS SEALED, AND THE RESULT WAS INEVITABLE. THUS, LESS THAN TWO WEEKS AFTER THAT INITIAL COMMITTEE VOTE ON IMPEACHMENT, THE PRESIDENT RESIGNED. MY CONGRESSMAN DURING THE COURSE OF THOSE PROCEEDINGS COMMENTED SIMPLY AND PLAINLY THAT IT WAS, IN HIS WORDS, A GREAT AMERICAN TRAGEDY. BUT THE GREATER POINT WAS AND IS THAT IMPEACHMENT WAS NEVER DESIGNED OR INTENDED TO BE A PARTISAN TOOL AND IT WAS TO BE UNDERTAKEN ONLY AS A LAST RESORT. THIS THEN BRINGS ME TO WHAT WAS INTENDED BY THE FRAMERS OF THE CONSTITUTION RELATIVE TO IMPEACHMENT. THAT SUBJECT WILL BE ADDRESSED AT SOME LENGTH BY MY COLLEAGUE, PROFESSOR DERSHOWITZ. BUT FOR NOW, LET ME JUST SAY THAT MUCH HAS BEEN SAID BY HOUSE MANAGERS IN RELIANCE ON ALEXANDER HAMILTON’S OFT-QUOTED STATEMENT IN FEDERALIST 65. THAT’S THE RUN REPEATEDLY TAKEN OUT OF CONTEXT AND CITED IN FAVOR OF AN EXPANSIVE SCOPE OF JURISDICTION BY CONGRESS OVER ALLEGED OFFENSES. IN HAMILTON’S WORDS, WHICH PROCEED FROM MISCONDUCT OF A PUBLIC OFFICIAL CONSTITUTING THE ABUSE OF OR VIOLATION OF SOME PUBLIC TRUST. THE IRONY THAT HAMILTON, THE GREATEST PROPONENT IN THIS COUNTRY OF EXECUTIVE AND PRESIDENTIAL AUTHORITY THAT PERHAPS EVER LIVED, SHOULD BE FRONT AND CENTER IN THIS PARTISAN IMPEACHMENT EFFORT TO REMOVE A DULY ELECTED PRESIDENT FROM OFFICE IS APPARENTLY LOST ON HOUSE IMPEACHMENT MANAGERS.I DARE SAY THAT HAMILTON WOULD ROLL OVER IN HIS GRAVE AT THE END OF WALL STREET AND NEW YORK CITY TO KNOW THAT CONTRARY TO WHAT HE EXPLICITLY ACKNOWLEDGED IN FEDERALIST 69 THAT A FRED CAN ONLY BE REMOVED FROM — A THAT A FEDERALIST CAN ONLY BE REMOVED UPON CONVICTION OF TREASON, HIGH CRIMES AND MISDEMEANORS, WE SHOULD JUST READ THE WORD CRIME RIGHT OUT OF THE IMPEACHMENT CLAUSE OF THE CONSTITUTION AND PROCEED MERRILY ALONG THE WAY TOWARDS AN IMPEACHMENT TRIAL WITH WITNESSES NO LESS OF THAT PRESIDENT DULY ELECTED BY THE PEOPLE AND FOR WHAT? ARTICLES OF IMPEACHMENT THAT DO NOT EVEN ALLEGE CRIMES. PRESIDENT TRUMP IS RIGHT. THAT COURSE, IF SUSTAINED, CHEAPENS THE IMPEACHMENT PROCESS AND THUS IS AN AMERICAN TRAGEDY ALL ITS OWN. NONE OTHER THAN PRESIDENT CLINTON’S HIGHLY RESPECTED WHITE HOUSE COUNSEL CHARLES RUFF DURING THE IMPEACHMENT TRIAL 21 YEARS AGO STATED IN BEST, AND I QUOTE, TO ARGUE AS THE MANAGERS DO THAT THE PHRASE OTHER HIGH CRIMES AND MISDEMEANOR HE IS WAS REALLY MEANT TO ACCOMPANY A HIGH RANGE OF OFFENSES SIMPLY FLIES IN THE FACE OF THE CLEAR INTENT OF THE FRAMERS WHO KNEW EXACTLY WHAT THOSE WORDS MEANT AND KNEW EXACTLY WHAT RISKS THEY INTENDED TO PROTECT AGAINST, CLOSE QUOTE.ONE OF THOSE CONCERNS AND RISKS, COUNSEL RUFF WENT ON TO EXPLAIN, IS THAT IMPEACHMENT BE LIMITED AND WELL-DEFINED. FOR OUR PURPOSES HERE, WHAT IS REQUIRED IS BOTH THAT CRIMES BE ALLEGED AND THAT THOSE CRIMES BE OF THE TYPE THAT IN PARTICULAR ARE SO SERIOUS THAT THEY, AGAIN IN MR. RUFF’S WORDS, QUOTE, SUBVERT OUR SYSTEM OF GOVERNMENT AND WOULD JUSTIFY OVERTURNING A POPULAR ELECTION, CLOSE QUOTE. OTHERWISE WHAT YOU HAVE IN De TOCQUEVILLE’S WORDS IS LEGISLATIVE TYRANNY. THAT TAKEN IN ITS PROPER CONTEXT, MEMBERS OF THE SENATE, I RESPECTFULLY SUBMIT, IS WHAT ALEXANDER HAMILTON WELL UNDERSTOOD AND MEANT AND SO DID MY CONGRESSMAN.THAT CONGRESSMAN WAS, OF COURSE, HAMILTON FISKE, JR. HE WAS NOT REALLY INJURE BUT HAMILTON FISKE IV. HIS GREAT-GRANDFATHER WAS BORN IN 1808, SERVED AT GOVERNOR OF NEW YORK, A UNITED STATES SENATOR IMMEDIATELY BEFORE THE CIVIL WAR, AND NOTABLY AS PRESIDENT ULYSSES GRANT’S SECRETARY OF STATE. BUT WHAT I DIDN’T REALIZE AT THAT TIME BACK IN 1980, EVEN THOUGH NOW PERHAPS IT IS SO OBVIOUS, THE ORIGINAL HAMILTON FISKE WAS NAMED AFTER HIS PARENTS’ BEST FRIEND, NONE OTHER THAN ALEXANDER HAMILTON HIMSELF. WHAT CONGRESSMAN HAMILTON FISKE FROM THE WATERGATE ERA UNDERSTOOD IS THE SAME HISTORICAL LESSON THAT JEFFREY A. ENGEL, FOUNDING DIRECTOR AT SOUTHERN UNIVERSITY HAS WRITTEN IN A 2018 BOOK AN IMPEACHMENT. THE CHARGE MUST BE TREE SONGS BRIBERY OR OTHER HIGH CRIMES AND MISDEMEANORS.IT MUST BE ONE FOR WHICH CLEAR AND UNMISTAKABLE PROOF CAN BE PRODUCED. ONLY IF THE EVIDENCE ACTUALLY PRODUCED AGAINST THE PRESIDENT CAN INDEED IRREFUTABLE THAT HIS OWN CONSTITUENTS IN THIS CASE THE 63 MILLION PEOPLE LIKE ME WHO VOTED FOR PRESIDENT TRUMP ACCEPT HIS GUILT OF THE OFFENSE CHARGED IN ORDER TO OVER-WELLCOMEINGLY PERSUADE A SUPERMAJORITY OF AMERICANS AND THUS THEIR SENATORS OF MALFEASANCE WARRANTING HIS REMOVAL FROM HE WAS. BECAUSE IT IS THE PRESIDENT’S UNITED STATES THAT WE ARE TALKING ABOUT HERE, THE REPOSITORY OF IT AND ENTRUSTED UNDER THE CONSTITUTION WITH ALL OF THE EXECUTIVE POWER OF THE UNITED STATES — IN OTHER WORDS, AN ENTIRE BRANCH OF GOVERNMENT — REMOVAL FROM OFFICE CANNOT BE BASED UPON AN IMPEACHABLE OFFENSE OR OFFENSES WHICH ARE IN ESSENCE NOTHING MORE THAN PARAPHRASING PRESIDENT VEILED FORD NOW WHATEVER PARTISAN MAJORITY OF THE HOUSE OF REPRESENTATIVES CONSIDERS THEM TO BE.TO SUPPLEMENT THAT CITED STATEMENT 50 YEARS AGO IN 1970 FROM THEN-CONGRESSMAN JERRY FORD IN CONNECTION WITH THE PROSPECT OF IMPEACHING A SUPREME COURT JUSTICE, FORD POINTEDLY CLARIFIED THAT EXECUTIVE BRANCH IMPEACHMENTS ARE DIFFERENT BECAUSE VOTERS CAN REMOVE THE PRESIDENT, THE VICE PRESIDENT, AND ALL PERSONS HOLDING OFFICE AT THEIR PLEASURE AT LEAST EVERY FOUR YEARS. TO REMOVE A PRESIDENT IN MIDTERM, IT HAS BEEN TRIED BEFORE AND NEVER DONE, WOULD INDEED, HE SAID, REQUIRE CRIMES OF THE MAG MIITUDE OF TREASON AND BRIBERY R PROFESSOR AKHIL YAMAR OF YALE LAW SCHOOL MADE ABOUT THE DANGER PRESENTED THROUGH PRESIDENTIAL IMPEACHMENT OF TRANSFORMING AN ENTIRE BRANCH OF GOVERNMENT. WHEN THEY REMOVE A DULY ELECTED PRESIDENT, THEY UNDO THE VOTES OF MILLIONS OF ORDINARY AMERICANS ON ELECTION DAY.THAT IS NOTING IS, HE CONTINUED, THAT SENATORS SHOULD DO LIGHTLY LEST WE SLIDE TOWARD A KIND OF PARLIAMENTARY GOVERNMENT THAT OUR ENTIRE STRUCTURE OF GOVERNMENT WAS DESIGNED TO REPUDIATE. IN HAMMERING HOME THE CONSTITUTIONAL UNIQUENESS OF PRESIDENTIAL IMPEACHMENTS, HE EMPHASIZED THE CASE OF RICHARD NIXON AND DISTINGUISHED THAT FROM ANDREW JOHNSON. THAT IS TO SAY, ONLY WHEN EXTREMELY HIGH CRIMES AND GROSS ABUYSES OF OFFICIAL POWER INDEED POSE A THREAT TO OUR BASIC CONSTITUTIONAL SYSTEM, A THREAT AS HIGH AND TRULY AS MALIGNANT TO DEMOCRATIC GOVERNMENT AS TREASON AND BRIBERY, HE REASONED, WOULD THE SENATE EVER BE JUSTIFIED IN NULLIFYING VOTES OF MILLIONS OF AMERICANS AND REMOVING A PRESIDENT FROM OFFICE. MY POINT IS THIS — HISTORY, OUR AMERICAN HISTORY, MATTERS. TO LISTEN TO HOW THE HOUSE MANAGERS WOULD HAVE IT, ARTICLES OF IMPEACHMENT ARE MERELY AS CHUCK RUFF WARNED A GENERATION AGO, EMPTY VESSELS INTO WHICH CAN BE POURED ANY NUMBER OF CHARGES, EVEN THOSE CONSIDERED AND ABANDONED.AT LEAST IN THE CASE OF PRESIDENT CLINTON’S IMPEACHMENT, THE ARTICLES ACTUALLY CHARGED CRIMES. THE SENATE THEREAFTER DETERMINED BY ITS VOTE IN THAT CASE IN EFFECT THAT WHILE THOSE CRIMES, PERJURY AND OBJECTION OF OBSTRUCTION OF JUSTICE, MAY HAVE BEEN COMMITTED, THOSE CRIMES WERE NOT HIGH ENOUGH CRIMES DAMAGING TO THE BODY POLITIC TO WARRANT THE PRESIDENT’S REMOVAL FROM OFFICE. THAT JUDGMENT WAS OF COURSE WITHIN THIS BODY’S DISCRETION TO RENDER AND IT HAS BEEN ACCEPTED AS SUCH BY THE COUNTRY. WHETHER YOU AGREE WITH IT OR NOT AS LEGITIMATE. IT IS ALSO ONE THAT IS HISTORICALLY CONSISTENT WITH HAMILTON’S VIEWS AND MADISON’S TOO CONSIDERING THE PROPER SCOPE OF IMPEACHMENT AS APPLIED TO A PRESIDENT. WHEN I ENTERED THE SCENE AND SUCCEEDED MY COLLEAGUE AND COCOUNSEL HERE, JUDGE KEN EDGE STAR, IT WAS LEFT FOR ME TO DECIDE WHETHER PROSECUTION OF PRESIDENT CLINTON FOLLOWING IMPEACHMENT NONETHELESS WAS WARRANTED, CONSISTENT WITH THE DEPARTMENT OF JUSTICE’S PRINCIPLES OF FEDERAL PROSECUTION.AND THAT MATTER WAS EXHAUSTIVELY CONSIDERED. IN THE MIDST OF A FEDERAL GRAND JURY INVESTIGATION THAT I COMMISSIONED IN ORDER TO DECIDE FIRST WHETHER CRIMES IN FACT HAD BEEN COMMITTED, I FOUND THAT THEY HAD AND I LATER SAID SO PUBLICLY IN THE FINAL REPORT EXPRESSLY AUTHORIZED AND MANDATED BY CONGRESS, CONCLUDING THE LEWINSKY INVESTIGATION. SIGNIFICANTLY, THOUGH, I ALSO DETERMINED THAT THE PROSECUTION OF THE PRESIDENT, WHILE IN OR ONCE HE LEFT OFFICE, WOULD NOT BE IN THE NATIONAL INTEREST GIVEN ALTERNATIVE AVAILABLE MEANS SHORT OF PROSECUTION IN ORDER TO HOLD THE PRESIDENT ACCOUNTABLE FOR HIS CONDUCT.THOSE MEANS INCLUDED A WRITTEN ACKNOWLEDGMENT BY THE PRESIDENT TWO YEARS AFTER HIS SENATE TRIAL THAT HIS TESTIMONY UNDER OATH BEFORE THE GRAND JURY HAD IN FACT BEEN FALSE AND A RELATED AGREEMENT TO SUSPEND HIS LAW LICENSE. THE PRICE PAID BY PRESIDENT CLINTON WAS INDEED HIGH AND IT STEMMED IN THE END FROM THE NEED TO VINDICATE THE PRINCIPLE FIRST RAISED MOST PROMINENTLY DURING WATERGATE THAT NO PERSON, INCLUDING THE PRESIDENT, IS ABOVE THE LAW. DESPITE PRESIDENT CLINTON’S SUBSEQUENT PROTESTATION IN HIS MEMOIRS THAT I WAS JUST ANOTHER PROSECUTOR OUT TO EXTRACT, IN HIS WORDS, A POUND OF FLESH, I CREDIT THE PRESIDENT TO THIS DAY WITH AGREEING TO DO WHAT WAS NECESSARY IN ORDER TO EXERCISE MY DISCRETION NOT TO PROSECUTE. NAMELY, THAT FOR THE GOOD OF THE COUNTRY AND RECOGNIZING THE UNIQUE PLACE THAT THE PRESIDENT, INDEED ANY PRESIDENT, OCCUPIES IN OUR CONSTITUTIONAL GOVERNMENT ACCOUNTABILITY AND DISCRETION GO HAND IN HAND AND PERMITTED, INDEED DEMANDED SUCH AN APPROPRIATE RESOLUTION.IT ENABLED THE COUNTRY TO MOVE ON, AND IT WAS AS MUCH IF NOT MORE A CREDIT TO BILL CLINTON THAN TO ANY CREDIT I RECEIVED OR DESERVED THAT WE WERE ABLE TO REACH AGREEMENT AND AVOID ANY FURTHER PARTISAN RECRIMINATIONS OR INTERFERENCE WITH THE WILL OF THE AMERICAN PEOPLE IN ELECTING AND REELECTING PRESIDENT CLINTON IN THE FIRST PLACE AND HIS SUCCESSOR, PRESIDENT GEORGE W. BUSH. IN SHORT, I WAS ABSOLUTELY MINDFUL AND EXCEEDINGLY CONCERNED THROUGHOUT MY TENURE AS INDEPENDENT COUNSEL THAT, ALTHOUGH CRIMES HAD BEEN COMMITTED, BILL CLINTON WAS THE ELECTED OFFICIAL PLACED IN OFFICE BY VOTERS THROUGHOUT THE NATION AND HEAD OF THE EXECUTIVE BRANCH, AND I WAS NOT.THE LESSON FOR ME WAS A SIMPLE ONE THAT I AM SURE EVERY AMERICAN CITIZEN, WHATEVER THEIR OWN EXPERIENCE OR POLITICAL PERSPECTIVE, CAN UNDERSTAND. BE HUMBLE AND ACT WITH HUMILITY, NEVER BEING TOO SURE THAT YOU WERE RIGHT. TODAY, 20 YEARS LATER, WHAT WE HAVE LEARNED FROM THAT — WHAT HAVE WE LEARNED FROM THAT EXPERIENCE? I FEAR THAT THE ANSWER TO THAT QUESTION IS NOTHING AT ALL. IF THESE IMPEACHMENT ARTICLES NOW ARE SUSTAINED BEYOND SUMMARY RESOLUTION IN FAVOR OF ACQUITTAL, IMPEACHMENT IN THE FUTURE LITERALLY WILL MEAN NOT ONLY THAT PROOF OF HIGH CRIMES IS NO LONGER NECESSARY TO SUSTAIN THE EFFORT, BUT THAT NO CRIME AT ALL IS SUFFICIENT SO LONG AS A PARTISAN MAJORITY IN THE HOUSE SAYS SO. AND THUS, DURING THE PAST FOUR MONTHS ALONE, WE HAVE WITNESSED THE ENDLESS PROCESSION OF LEGAL THEORIES USED TO SUSTAIN THIS PARTISAN IMPEACHMENT, BE FROM TREASON TO QUID PRO QUO TO BRIBERY TO EXTORTION TO OBSTRUCTION OF JUSTICE TO SOLICITING AN ILLEGAL FOREIGN CAMPAIGN CONTRIBUTION TO A VIOLATION OF THE EMPOWERMENT CONTROL ACT, TO WHO KNOWS WHAT ALL IS NEXT.WHAT YOU WERE LEFT WITH THEN ARE CONSTITUTIONALLY DEFICIENT ARTICLES ABANDONING ANY PRETENSE OF THE NEED TO ALLEGE CRIMES THAT ARE ANOTHER VEHICLE OR WEAPON, IF YOU WILL, IN ORDER TO DAMAGE THE PRESIDENT POLITICALLY IN AN ELECTION YEAR. IT IS, I SUBMIT, DECIDEDLY NOT IN THE COUNTRY’S BEST INTERESTS TO HAVE THE PROSECUTION OF THE GRAVE ISSUE OF IMPEACHMENT AND THE DRASTIC PROSPECT OF REMOVAL FROM OFFICE BECOME JUST POLITICS BY OTHER MEANS. ANY MORE THAN IT WOULD BE APPROPRIATE FOR THE HUGE POWER OF PROSECUTION OF OFFENSES UNDER THE FEDERAL CRIMINAL CODE TO BE EXERCISED NOT ON THE MERITS WITHOUT FEAR OR FAVOR, BUT INSTEAD AS A RAW, NAKED, AND PERNICIOUS EXERCISE OF PARTISAN POWER AND ADVANTAGE. I HAVE SPENT THE BETTER PART OF MY PROFESSIONAL LIFE FOR OVER 30 YEARS AS A FEDERAL PROSECUTOR FOR 13 YEARS THROUGH TWO NORTH ARUNDEL INVESTIGATIONS, AND NOW AS A DEFENSE LAWYER FOR OVER 17 YEARS, TRYING MY LEVEL BEST ALWAYS TO ENSURE THAT POLITICS AND PROSECUTION DO NOT MIX. IT MUST NOT HAPPEN HERE. A STANDARDLESS AND PARTISAN IMPEACHMENT IS ILLEGITIMATE AND SHOULD BE REJECTED AS SUCH. OVERWHELMINGLY BY THIS BODY, I HOPE AND SUBMIT OR ALTERNATIVELY AND IF NEED BE BY ONLY A PARTISAN REPUBLICAN MAJORITY, FOR THE GOOD OF THE COUNTRY.TURNING NOW TO WHAT THE HOUSE MANAGERS HAVE ALLEGED. REGARDING THE FIRST ARTICLE, THE HOUSE JUDICIARY COMMITTEE REPORT ON IMPEACHMENT CONTAINS A RATHER EXTRAORDINARY STATEMENT. IT SAYS AS FOLLOWS, AND I QUOTE — ALTHOUGH PRESIDENT TRUMP’S ACTIONS NEED NOT RISE TO THE LEVEL OF A CRIMINAL VIOLATION TO JUSTIFY IMPEACHMENT, HIS CONDUCT HERE WAS CRIMINAL, CLOSE QUOTE. SO IN SHORT, WE NEEDN’T BOTHER IN AN IMPEACHMENT ARTICLE CHARGING THE PRESIDENT WITH A CRIME, IMPLICITLY RECOGNIZING THAT THERE IS INSUFFICIENT EVIDENCE TO PROVE THAT SUCH A CRIME WAS COMMITTED, BUT WE’RE GOING TO SAY THAT THE PRESIDENT’S CONDUCT WAS CRIMINAL NONETHELESS. ASIDE FROM BEING EXCEEDINGLY UNFAIR TO CALL SOMETHING CRIMINAL AND NOT STAND BEHIND THE ALLEGATION AND ACTUALLY CHARGE IT, IT JUST AIN’T SO.I HAVE HEARD HOUSE MANAGER HAKEEM JEFFRIES ARGUE BEFORE THIS BODY THAT HE AND HIS TEAM HAVE OVERWHELMING EVIDENCE OF AN EXPLICIT — HIS WORD, NOT MINE — QUID PRO QUO BY THE PRESIDENT. THAT IS, AN EXPLICIT PURPORTED AND PROPOSED EXCHANGE BY PRESIDENT TRUMP OF SOMETHING OF PERSONAL BENEFIT TO HIMSELF IN RETURN FOR AN OFFICIAL ACT BY THE U.S. GOVERNMENT. AS I HAVE EXPLAINED AS FAR BACK AS NOVEMBER OF LAST YEAR IN A “TIME” MAGAZINE COVER STORY, THE PROBLEM WITH THIS LEGAL THEORY IS THAT AN UNLAWFUL QUID PRO QUO IS LIMITED TO THOSE ARRANGEMENTS THAT ARE CORRUPT. THAT IS TO SAY, ONLY THOSE THAT ARE CLEARLY AND UNMISTAKABLY IMPROPER ARE THEREFORE ILLEGAL, AND IN THE EYES OF THE LAW, THE SPECIFIC MEASURABLE BENEFIT THAT AN INVESTIGATION OR EVEN THE ANNOUNCEMENT OF AN INVESTIGATION AGAINST THE BIDENS MIGHT BRING PRESIDENT TRUMP IS AT BEST NEBULOUS. I SHOULD ADHERE ALSO THAT ANY EFFORT TO CONTEND THAT THIS PURPORTED THING OF VALUE ALSO CONSTITUTES AN ILLEGAL FOREIGN CAMPAIGN CONTRIBUTION TO THE PRESIDENT OF THE UNITED STATES IS FRAUGHT WITH DOUBT AS A MATTER OF LAW. INDEED, THE JUSTICE DEPARTMENT HAS SAID AS MUCH.SO, TOO, HAVE COURTS WHO HAVE STRUGGLED SINCE AT LEAST THE EARLY 1990’S WITH APPLICATION OF THE FEDERAL ANTICORRUPTION LAWS TO SITUATIONS LIKE THIS WHEN AN IN-KIND BENEFIT IN THE FORM OF CAMPAIGN INTERFERENCE OR ASSISTANCE IS ALLEGED TO BE ILLEGAL. NONE OF THIS WOULD PERMIT THE REQUISITE FINDING SUPPORTED BY CLEAR AND UNMISTAKABLE EVIDENCE OF A VIOLATION OF LAW NECESSARY TO SUSTAIN IMPEACHMENT AS AN ABUSE OF POWER. BUT BACK TO MANAGER JEFFRIES’ CONTENTION. PROOF OF AN EXPLICIT QUID PRO QUO BY THE PRESIDENT, WHICH PARENTHETICALLY, AS PREVIOUSLY NOTED BY MR.CIPOLLONE, IS NOWHERE TO BE FOUND IN THE ARTICLES OF IMPEACHMENT, WOULD HAVE REQUIRED A VERY DIFFERENT TELEPHONE CALL THAN THE ONE PRESIDENT TRUMP ACTUALLY HAD WITH UKRAINE PRESIDENT ZELENSKY. AS I TRIED TO EXPLAIN IN THE “TIME” MAGAZINE PIECE, AN EXPLICIT QUID PRO QUO FOR ALLEGED IMPROPER CAMPAIGN INTERFERENCE WOULD HAVE HAD PRESIDENT TRUMP SAYING TO HIS COUNTERPART IN UKRAINE, IN WORDS OR SUBSTANCE, HERE’S THE DEAL, AND FOLLOWED UP BY EXPLICITLY LINKING A DEMAND FOR AN INVESTIGATION OF THE BIDENS TO THE PROVISION OR RELIEF — RELEASE OF FOREIGN AID.NONE OF THAT WAS SAID OR EVER HAPPENED. THE CALL TRANSCRIPT ITSELF DEMONSTRATES THAT BEYOND ANY DOUBT. IN THE PRESIDENT’S WORDS, READ THE TRANSCRIPT. BY THE WAY, THE DEMAND CHARACTERIZATION APPARENTLY CREEPS INTO THIS PHONE CALL LARGELY AS THE RESULT OF ARMY LIEUTENANT COLONEL ALEXANDER VINDMAN’S TESTIMONY WHERE HE EQUATES A REQUEST BASED UPON HIS MILITARY EXPERIENCE AND HAVING LISTENED IN ON THE CALL BY A SUPERIOR OFFICER, IN THIS CASE, THE COMMANDER IN CHIEF, AS THE SAME THING AS AN ORDER IN THE CHAIN OF COMMAND. WHILE ALL OF THIS MAY BE TRUE IN THE MILITARY, IT GOES WITHOUT SAYING THAT PRESIDENT ZELENSKY, AS THE LEADER AND HEAD OF A SOVEREIGN NATION, WAS NOT AND IS NOT IN OUR MILITARY CHAIN OF COMMAND.I SAY THAT TO YOU, MEMBERS OF THE SENATE, AS THE SON OF A U.S. ARMY COLONEL AND VIETNAM WAR VETERAN BURIED IN ARLINGTON NATIONAL CEMETERY AND THE FATHER OF A U.S. ARMY MAJOR CURRENTLY SERVING WITH PRESIDENT TRUMP’S SPACE FORCE COMMAND IN AURORA, COLORADO, NEAR DENVER. WITH ALL DUE RESPECT, LIEUTENANT COLONEL VINDMAN’S TESTIMONY IN THIS REGARD IS AT BEST, I SUBMIT TO YOU, DISTORTED AND UNPERSUASIVE. NEXT, THE PURPORTED IMPLICIT LINK BETWEEN FOREIGN AID AND THE INVESTIGATIONS OR THE ANNOUNCEMENT OF THEM IS WEAK. THE MOST THAT AMBASSADOR GORDON SONDLAND WAS ABLE TO GIVE WAS HIS PRESUMPTION THAT SUCH A LINK LIKELY EXISTED, AND THAT PRESUMPTION WAS FLATLY CONTRADICTED BY THE PRESIDENT’S EXPRESS DENIAL OF THE EXISTENCE OF A QUID PRO QUO. TO AMBASSADOR SONDLAND, AS WELL AS TO SENATOR RON JOHNSON. THE PRESIDENT WAS EMPHATIC TO AMBASSADOR SONDLAND. THE PRESIDENT SAID, QUOTE, I WANT NOTHING, I WANT NO QUID PRO QUO. I JUST WANT ZELENSKY TO DO THE RIGHT THING, TO DO WHAT HE RAN ON, CLOSE QUOTE. AND TO SENATOR JOHNSON, THE SAME THING. JUST TWO WORDS. NO WAY. RECOGNIZING THIS FLAW IN THE TESTIMONY, HOUSE MANAGERS HAVE FOCUSED INSTEAD ON AN ALTERNATE QUID PRO QUO RATIONALE THAT THE EXCHANGE WAS CONDITIONED ON A FOREIGN HEAD OF STATE MEETING AT THE WHITE HOUSE IN RETURN FOR UKRAINE PUBLICLY ANNOUNCING AN INVESTIGATION OF THE BIDENS.IN THE HOUSE JUDICIARY REPORT, IT STATES AS FOLLOWS, AND I QUOTE — IT IS BEYOND QUESTION THAT OFFICIAL WHITE HOUSE VISITS CONSTITUTE A FORMAL EXERCISE OF GOVERNMENTAL POWER WITHIN THE MEANING OF McDONALD, CLOSE QUOTE. NOT SO FAST. ACTUALLY, THE SUPREME COURT IN McDONALD HELPFULLY BOILED IT DOWN TO ONLY THOSE ACTS THAT CONSTITUTE THE FORMAL EXERCISE OF GOVERNMENT POWER AND THAT ARE MORE SPECIFIC AND FOCUSED THAN A BROAD POLICY OBJECTIVE.AN EXCHANGE RESULTING IN MEETINGS, EVENTS, PHONE CALLS, AS THOSE TURNS ARE TYPICALLY UNDERSTOOD AS BEING ROUTINE, ACCORDING TO THE SUPREME COURT’S DEFINITION OF AN OFFICIAL ACT, DO NOT COUNT. THE FACT THAT THE MEETING INVOLVED WAS A FORMAL ONE, WITH ALL OF THE TRAPPINGS OF A STATE VISIT BY THE PRESIDENT OF UKRAINE AND HOSTED BY THE PRESIDENT OF THE UNITED STATES, MAKES NO DIFFERENCE. THE SUPREME COURT IS TALKING ABOUT AN OFFICIAL ACT AS A FORMAL EXERCISE OF DECISION-MAKING POWER, NOT THE FORMALITY OF THE VISIT. EVEN IF THE ALLEGATION WERE TRUE, THIS COULD NOT CONSTITUTE A QUID PRO QUO. I SHOULD KNOW. I ARGUED IN EFFECT THE CONTRARY PROPOSITION IN THE UNITED STATES VERSUS SUN DIAMOND BEFORE THE SUPREME COURT OVER 20 YEARS AGO IN 1999. THAT PROPOSITION LOST UNANIMOUSLY. THE VOTE WAS 9-0. IN ANY EVENT, THE COVETED MEETING — AND IT WAS, AFTER ALL, JUST A MEETING, WHETHER AT THE WHITE HOUSE OR NOT WAS NOT PERMANENTLY WITHHELD. IT LATER HAPPENED BETWEEN THE TWO PRESIDENTS AT THE UNITED NATIONS IN NEW YORK CITY, AT THE FIRST AVAILABLE OPPORTUNITY IN SEPTEMBER, 2019.FINALLY, THE ARGUMENT BY CHAIRMAN JERRY NADLER THAT THIS CALL BY PRESIDENT TRUMP WITH PRESIDENT ZELENSKY REPRESENTED A, QUOTE, EXTORTION DEMAND, CLOSE QUOTE, IS PATENTLY RIDICULOUS. THE ESSENTIAL ELEMENT OF THE CRIME OF EXTORTION IS PRESSURE. NO PRESSURE WAS EXERCISED OR EXERTED DURING THE CALL. UKRAINIAN OFFICIALS, INCLUDING PRESIDENT ZELENSKY HIMSELF, HAVE SINCE REPEATEDLY DENIED THAT ANY SUCH PRESSURE EXISTED. INDEED, TO THE CONTRARY, THE EVIDENCE STRONGLY SUGGESTS UKRAINE WAS PERFECTLY CAPABLE OF RESISTING ANY EFFORTS TO ENTANGLE ITSELF IN UNITED STATES DOMESTIC PARTY POLITICS AND PARTISANSHIP. WHAT THEN REMAINS OF THE FIRST ARTICLE OF IMPEACHMENT? NO CRIMES WERE COMMITTED. INDEED, NO CRIMES WERE EVEN FORMALLY ALLEGED. IN THAT REGARD, WHAT EXACTLY IS LEFT? IT’S NOT TREASON. UKRAINE IS OUR ALLY, NOT OUR ENEMY OR OUR ADVERSARY, AND RUSSIA IS NOT OUR ENEMY, ONLY OUR ADVERSARY. IT’S NOT BRIBERY.THERE’S NO QUID PRO QUO. IT’S NOT EXTORTION, NO PRESSURE. IT’S NOT AN ILLEGAL FOREIGN CAMPAIGN CONTRIBUTION. THE BENEFIT OF THE ANNOUNCEMENT OF AN INVESTIGATION IS NOT TANGIBLE ENOUGH TO CONSTITUTE AN IN-KIND CAMPAIGN CONTRIBUTION WARRANTING PROSECUTION UNDER FEDERAL LAW. AND IT’S ALSO NOT A VIOLATION OF THE IMPOUNDMENT CONTROL ACT. LET’S TAKE A LOOK AT THAT LAST ONE FOR A MOMENT, SHALL WE? THE U.S. GOVERNMENT ACCOUNTABILITY OFFICE, AN ARM OF THE UNITED STATES CONGRESS, IN ITS INFINITE WISDOM HAS DECIDED, CONTRARY TO THE POSITION OF THE EXECUTIVE BRANCH OFFICES — EXECUTIVE BRANCH OFFICE OF MANAGEMENT AND BUDGET, OFFICE OF MANAGEMENT AND BUDGET, THAT WHILE THE PRESIDENT MAY TEMPORARILY WITHHOLD FUNDS FROM OBLIGATION BUT NOT BEYOND THE END OF THE FISCAL YEAR, HE MAY NOT DO SO WITH VAGUE OR GENERAL ASSERTIONS OF POLICY PRIORITIES CONTRARY TO THE WILL OF CONGRESS. THE PRESIDENT’S RESPONSE TO THIS INTERBRANCH DISPUTE BETWEEN CONGRESS AND THE EXECUTIVE BRANCH WAS TO ASSERT HIS AUTHORITY OVER FOREIGN POLICY TO DETERMINE THE TIMING OF THE BEST USE OF FUNDS. ULTIMATELY, THIS IS A DISPUTE THAT HAS CONSTITUTIONAL IMPLICATIONS UNDER SEPARATION OF POWER PRINCIPLES ABOUT WHICH THIS BODY IS WELL FAMILIAR.IT PITS THE PRESIDENT’S CONSTITUTIONAL PREROGATIVES TO CONTROL FOREIGN POLICY AGAINST CONGRESS’ REASONABLE EXPECTATION THAT THE PRESIDENT WILL COMPLY WITH THE CONSTITUTION’S FAITHFUL EXECUTION OF THE LAW REQUIREMENT OF HIS OATH OF OFFICE. THIS ISSUE HAS COME UP BEFORE WITH OTHER PRESIDENTS. THERE IS A HUGE CONSTITUTIONAL DEBATE AMONG LEGAL SCHOLARS ABOUT WHO’S RIGHT. LAW REVIEW ARTICLES HAVE BEEN WRITTEN ABOUT IT. ONE AS RECENTLY AS LAST JUNE IN “THE HARVARD LAW REVIEW.” CONGRESS, THROUGH ITS ARM, THE G.A.O., HAVE AN OPPOSING VIEW FROM THAT OF THE ADMINISTRATION AND O.M.B. BIG SURPRISE. I AM REMINDED OF ONE OF PRESIDENT KENNEDY’S FAMOUS PRESS CONFERENCES WHERE HE WAS ASKED TO COMMENT ABOUT A REPORT THAT THE REPUBLICAN NATIONAL COMMITTEE HAD VOTED A RESOLUTION THAT CONCLUDED HE WAS A TOTAL FAILURE AS PRESIDENT. HE FAMOUSLY QUIPPED, I AM SURE THAT IT WAS PASSED UNANIMOUSLY. THAT IS ALL THAT THIS IS HERE, POLITICS. NO MORE, NO LESS. AND IN THE END, WHAT ARE WE TALKING ABOUT? THE TEMPORARY HOLD WAS LIFTED AND THE FUNDS WERE RELEASED, AS THEY HAD TO BE UNDER THE LAW AND AS ACKNOWLEDGED WAS REQUIRED BY NONE OTHER THAN ACTING CHIEF OF STAFF MICK MULVANEY 19 DAYS AFTER THE END OF THE FISCAL YEAR ON SEPTEMBER 11, 2019.IN ANY EVENT, AN ALLEGED VIOLATION OF THE IMPOUNDMENT ACT CAN NO MORE SUSTAIN AN IMPEACHMENT ARTICLE THAN CAN AN ASSERTION OF EXECUTIVE PRIVILEGE IN OPPOSITION TO A CONGRESSIONAL SUBPOENA ABSENT A FINAL DECISION OF A COURT ORDERING COMPLIANCE WITH THAT SUBPOENA. MERE ASSERTION OF A PRIVILEGE OR OBJECTION IN A LEGITIMATE INTERBRANCH DISPUTE IS A CONSTITUTIONAL PREROGATIVE. IT SHOULD NEVER RESULT IN AN IMPEACHABLE OFFENSE FOR ABUSE OF POWER OR OBSTRUCTION OF JUSTICE. AND YET IN A LAST-DITCH EFFORT TO REFRAME ITS FIRST ARTICLE OF IMPEACHMENT ON ABUSE OF POWER, HOUSE MANAGERS, AS PART OF THE HOUSE JUDICIARY COMMITTEE REPORT, HAVE GONE BACK INTO HISTORY, ALWAYS A TREASURE US ARE ENDEAVOR FOR LAWYERS. THEY NOW ARGUE THAT PRESIDENT ANDREW JOHNSON’S IMPEACHMENT FROM OVER 150 YEARS AGO FOLLOWING THE END OF THE CIVIL WAR AND DURING RECONSTRUCTION WAS NOT ABOUT A VIOLATION OF THE TENURE OF OFFICE ACT, WHICH AFTER ALL WAS THE VIOLATION OF LAW CHARGED AS THE PRINCIPAL ARTICLE OF IMPEACHMENT BUT INSTEAD RESTED ON HIS USE OF POWER WITH I WILL LEGITIMATE MOTIVES.IN AN AHISTORICAL SLEIGHT OF HAND, ONLY OF THE “NEW YORK TIMES” 1916 SERIES, A SERIES ROUNDLY CRITICIZED BY TWO OF MY PRINCETON HISTORY PROFESSORS AS INACCURATE, HOUSE MANAGERS NOW CLAIM THAT PRESIDENT JOHNSONS REMOVAL OF LINCOLN’S SECRETARY OF WAR ED WINWIN STANTON WITHOUT CONGRESS’ PERMISSION IN VIOLATION OF A STATUTE LATER FOUND TO BE UNCONSTITUTIONAL IS BEST UNDERSTOOD WITH THE BENEFIT OF REVISIONIST HINDSIGHT TO BE MOTIVATED NOT BY HIS DESIRE TO VIOLATE THE CONSTITUTE BUT ON HIS ILLEGITIMATE USE OF POWER TO UNDERMINE RECONSTRUCTION AND SUBORDINATE AFRICAN AMERICANS FOLLOWING THE CIVIL WAR. THAT ALL MAY BE TRUE, BUT IT IS ANOTHER THING ALTOGETHER TO CLAIM THAT THAT MOTIVE ACTUALLY WAS THE BASIS OF JOHNSON’S IMPEACHMENT. PROFESSOR LAURENCE TRIBE, WHO WAS THE SOURCE FOR THIS MISGUIDED REINTERPRETATION OF THE JOHNSON IMPEACHMENT, SIMPLY SUBSTITUTES HIS OWN SELF-DESCRIBED FAR MORE COMPELLING BASIS FOR JOHNSON’S REMOVAL FROM OFFICE FROM THE ONE THAT THE HOUSE OF REPRESENTATIVES ACTUALLY VOTED ON AND THE SENATE CONSIDERED AT HIS IMPEACHMENT TRIAL.THERE HAS BEEN AN AWFUL LOT OF THAT GOES ON IN THIS IMPEACHMENT. PEOPLE SUBSTITUTING THEIR OWN INTERPRETATIONS FOR THE ONES THAT THE PRINCIPLES INSIST ON. AT ANY RATE, A PRESIDENT’S SO-CALLED ILLEGITIMATE MOTIVES IN WIELDING POWER CAN NO MORE FRAME AND LEGITIMIZE THE JOHNSON IMPEACHMENT THAN RECASTING THE NIXON IMPEACHMENT, AS REALLY ABOUT HIS MOTIVES IN DEFYING CONGRESS OVER THE COUNTRY’S FOREIGN POLICY IN VIETNAM, AGAIN ALL OF THAT MAY BE TRUE BUT IT HAS NOTHING REALLY TO DO WITH IMPEACHMENT. NOT ONLY THAT, IT’S ALSO BAD HISTORY. AS RECOGNIZED 65 YEARS AGO BY THEN-SENATOR JOHN F. KENNEDY IN HIS BOOK “PROFILES IN COURAGE,” PRESIDENT JOHNSON WAS SAVED FROM REMOVAL BY ONE VOTE AND BY ONE COURAGEOUS SENATOR WHO RECOGNIZED THE LEGISLATIVE OVERREACH THAT THE TENURE OF OFFICE ACT REPRESENTED. QUOTING NOW FROM SENATOR HE HAD MONTANA G. ROSS IN “PREFILES IN COURAGE” WHO EXPLAINED HIS VOTE AS FOLLOWS. QUOTE, THE INDEPENDENCE OF THE EXECUTIVE OFFICE AS A COORDINATE BRANCH OF GOVERNMENT WAS ON TRIAL. IF THE PRESIDENT MUST STEP DOWN UPON INSUFFICIENT PROOF AND FROM PARTISAN CONSIDERATIONS, THE OFFICE OF THE PRESIDENT WOULD BE DEGRADED, CLOSE QUOTE.SO, TOO, HERE. CONTRARY APPARENTLY TO THE FASHION NOW, SENATOR ROSS’ ACTION EVENTUALLY WAS PRAISED AND ACCEPTED SEVERAL DECADES AFTER HIS SERVICE AND AGAIN MANY YEARS LATER BY PRESIDENT KENNEDY AS A COURAGEOUS STAND AGAINST LEGISLATIVE MOB RULE. PROFESSOR DERSHOWITZ WILL HAVE MORE TO SAY ABOUT ONE OTHER COURAGEOUS SENATOR FROM THAT IMPEACHMENT, MORE ON THAT LATER. FOR NOW, THE POINT IS THAT OUR HISTORY DEMONSTRATES THAT PRESIDENTS SHOULD NOT BE SUBJECT TO IMPEACHMENT BASED UPON BAD OR ILL MOTIVES AND ANY THOUGHT TO THE CONTRARY SHOULD STRIKE YOU, I SUBMIT, AS EXCEEDINGLY DANGEROUS TO OUR CONSTITUTIONAL STRUCTURE OF GOVERNMENT.IF THAT WERE THE STANDARD, WHAT PRESIDENT WOULD EVER BE SAFE BY WAY OF IMPEACHMENT FROM WHAT HAMILTON DECRIED AS THE, QUOTE, PERSECUTION OF AN INTEMPERATE OR DESIGNING MAJORITY IN THE HOUSE OF REPRESENTATIVES, CLOSE QUOTE. THE CENTRAL IMPORT OF THE ABUSE OF POWER ARTICLE OF IMPEACHMENT — INDEED, WHEN ADD TOGETHER WITH THE OBSTRUCTION OF JUSTICE ARTICLE — IS A RURAL NOT FAR OFF FROM WHAT ONE CITIZEN TWEET I SAW BACK IN DECEMBER DESCRIBED AS ARTICLE 1, DEMOCRATS DON’T LIKE PRESIDENT TRUMP. ARTICLE 2, DEMOCRATS CAN’T BEAT PRESIDENT TRUMP. PRESIDENT TRUMP IS NOT REMOVABLE FROM OFFICE JUST BECAUSE A DESIGNING MAJORITY IN THE HOUSE, AS REPRESENTED BY THEIR MANAGERS, BELIEVES THAT THE PRESIDENT ABUSED THE POWER OF HIS OFFICE DURING THE JULY 25 CALL WITH PRESIDENT ZELENSKY. THE CONSTITUTION REQUIRES MORE. TO IGNORE THE REQUIREMENT OF PROVING THAT A CRIME WAS COMMITTED IS TO SIDESTEP THE CONSTITUTIONAL DESIGN AS WELL AS THE LESSONS OF HISTORY.NOW, I KNOW THAT MANY OF YOU MAY COME DO CONCLUDE OR MAY HAVE ALREADY CONCLUDED THAT THE CALL WAS LESS THAN PERFECT AND I HAVE SAID ON ANY NUMBER OF OCCASIONS PREVIOUSLY AND PUBLICLY THAT IT WOULD HAVE BEEN BETTER IN ATTEMPTING TO SPUR ACTION BY A FOREIGN GOVERNMENT IN COORDINATING LAW ENFORCEMENT EFFORTS WITH OUR GOVERNMENT TO HAVE DONE SO THROUGH PROPER CHANNELS. WHILE THE PRESIDENT CERTAINLY ENJOYS THE POWER TO DO OTHERWISE, THERE IS CONSEQUENCE TO THAT ACTION AS WE HAVE NOW WITNESSED. AFTER ALL, THAT IS WHY WE ARE ALL HERE. BUT IT IS ANOTHER THING ALTOGETHER TO CLAIM THAT SUCH CONDUCT IS CLEARLY AND UNMISTAKABLY IMPEACHABLE AS AN ABUSE OF POWER.THERE CAN BE NO SERIOUS QUESTION THAT THIS PRESIDENT OR ANY PRESIDENT ACTS LAWFULLY IN REQUESTING FOREIGN ASSISTANCE WITH INVESTIGATIONS IS INTO POSSIBLE CORRUPTION, EVEN WHEN IT MIGHT POTENTIALLY INVOLVE ANOTHER POLITICIAN. TO ARGUE OTHERWISE WOULD BE TO ENGAGE IN THE SPECIOUS CONTENTION THAT A PRESIDENTIAL CANDIDATE OR FOR THAT MATTER ANY CANDIDATE ENJOYS ABSOLUTE IMMUNITY FROM INVESTIGATION DURING THE COURSE OF A CAMPAIGN. I CAN TELL YOU THAT’S NOT THE CASE FROM MY OWN EXPERIENCE.I DID SO DURING 2000 IN INVESTIGATING HILLARY CLINTON WHILE SHE WAS RUNNING FOR OFFICE TO BECOME A UNITED STATES SENATOR FROM NEW YORK TO WHICH SHE WAS ELECTED. MY POINT SIMPLY THIS — THIS PRESIDENT HAS BEEN IMPEACHED AND STANDS TRIAL HERE IN THE SENATE FOR ALLEGEDLY DOING SOMETHING INDIRECTLY ABOUT WHICH HE WAS ENTIRELY PERMITTED TO DO DIRECTLY. THAT CANNOT FORM A BASIS AS AN ABUSE OF POWER ARTICLE SUFFICIENT TO WARRANT HIS REMOVAL FROM OFFICE. TURNING NOW TO THE SECOND ARTICLE OF IMPEACHMENT, AS WE ARGUED IN OUR WRITTEN TRIAL BRIEF, AT THE OUTSET IT MUST BE NOTED THAT IT’S AT LEAST A LILIED FOR HOUSE MANAGERS TO BE ARGUING THAT PRESIDENT TRUMP SOMEHOW OBSTRUCTED CONGRESS WHEN HE DECLASSIFIED AND RELEASE THE WHAT IS THE CENTRAL PIECE OFEST IN THIS CASE, AND THAT’S OF COURSE THE TRANSCRIPT OF THE JULY 25 CALL, AS WELL AS THE CALL WITH PRESIDENT ZELENSKY THAT PRECEDED IT ON APRIL 21, 2019.RELEASE OF THAT FULL CALL RECORD SHOULD HAVE BEEN THE END OF THIS CLAIM OF OBSTRUCTION, BUT APPARENTLY NOT. INSTEAD, AGAIN RELYING ON UNITED STATES V. NIXON, HOUSE MANAGERS HAVE PROFFERED A BROAD CLAIM TO DOCUMENTS AND WITNESSES IN AN IMPEACHMENT INQUIRY NOTWITHSTANDING THE NIXON COURT’S LIMITED HOLDING THAT AN OBJECTION BY THE PRESIDENT BASED ON EXECUTIVE PRIVILEGE COULD ONLY BE OVERCOME IN THE LIMITED CIRCUMSTANCES PRESENTED THERE WHERE THE INFORMATION SOUGHT WAS ALSO MATERIAL TO THE PREPARATION OF THE DEFENSE BY HIS COCONSPIRATORS IN PENDING CASES AWAITING TRIAL FOLLOWING INDICTMENT. IN OTHER WORDS, A DEFENDANT’S SIXTH AMENDMENT RIGHT TO A FAIR TRIAL IN COLLATERAL PROCEEDINGS WAS WHAT THE COURT ACTUALLY FOUND DISPOSITIVE IN REJECTING THE PRESIDENT’S CLAIM H. CLAIM OF MISSILE TO PREVENT CONGRESS FROM GAINING ACCESS TO THE WATERGATE TAPES. ALL SUBSEQUENT ADMINISTRATIONS HAVE DEFENDED THAT NARROW EXCEPTION AGAINST ANY GENERAL CLAIM OF ACCESS TO EXECUTIVE BRANCH CONFIDENTIAL COMMUNICATIONS, DOCUMENTS, AND WITNESSES WHO ARE THE — OR WHO ARE THE WITNESSES OR THE PRESIDENT’S CLOSEST ADVISORS.THUS, IT SHOULD BE A MATTER OF ACCEPTED WISDOM AND HISTORICAL PREMISE THAT A PRESIDENT CANNOT BE REMOVED FROM OFFICE FOR INVOKING ESTABLISHED LEGAL RIGHTS, DEFENSES, PRIVILEGES, AND IMMUNITIES EVEN IN THE FACE OF SUBPOENAS FOR HOUSE COMMITTEES. BACK IN 1998 PROFESSOR TRIBE CALLED OUT ANY ARGUMENT TO THE CONTRARY AS PRIVILEGOUS AND DANGEROUS. HOUSE MANAGERS RESPOND NOW BY ARGUING NONETHELESS THAT THE PRESIDENT HAS NO RIGHT TO DEFY A LEGITIMATE SUBPOENA PARTICULARLY, I SUPPOSE, WHEN THEIR IMPEACHMENT EFFORTS ARE AT STAKE. AND, THUS, IT WILL AN ISSUE RISING TO THE LEVELLEN AN INTERBRANCH CONFLICT THAT IN OUR SYSTEM OF GOVERNMENT ONLY ACCOMMODATION BETWEEN THE BRANCHES AND ULTIMATELY COURTS CAN FINALLALLY RESOLVE. THE HOUSE CHOSE TO FOREGO THAT CHOICE AND TO PLOW FORWARD WITH IMPEACHMENT. HOUSE MANAGERS CANNOT BE HEARD TO COMPLAIN NOW THAT THEIR OWN STRATEGIC CHOICE CAN FORM ANY BASIS TO PLACE BLAME ON THE PRESIDENT FOR IT AND, WORSE YET, TO THEN IMPEACH HIM ON THAT BASIS AND SEEK HIS REMOVAL FROM OFFICE.THAT’S NO BASIS AT ALL. AS PROFESSOR JONATHAN TURLEY PERSUASIVELY HAS EXPLAINED. COMPLIANCE WITH A LEGITIMATE SUBPOENA IS IN FORCE OWN A CLAIM OF EXECUTIVE PRIVILEGE OR PRESIDENTIAL IMMUNITY ONLY WHEN A COURT WITH JURISDICTION SAYS SO IN A FINAL DECISION. IN SUM, CALLING A SUBPOENA LEGITIMATE, AS HOUSE MANAGERS HAVE DONE HERE, DOES NOT MAKE IT SO. AN ANALOGY TAKEN FROM BASEBALL THAT I BELIEVE THE CHIEF JUSTICE MIGHT APPRECIATE, MAKES THE POINT. A LONG TIME MAJOR LEAGUE UMPIRE NAMED BILL CLEM, WHO WORKED UNTIL 1941 AFTER 37 YEARS IN THE BIG LEAGUES, WAS ONCE ASKED DURING A GAME BY A PLAYER WHETHER A BALL WAS FAIR OR FOUL. THE UMPIRE REPLIED, IT AIN’T NOTHING UNTIL I CALL IT. WELL, I SAY THE SAME THING TO CHAIRMAN SCHIFF NOW. IT’S NOT A LEGITIMATE AND, THEREFORE, ENFORCEABLE SUBPOENA UNTIL A COURT SAYS THAT IT IS. PRECEDING THE CLINTON IMPEACHMENT AND IN RESPONSE TO DEMANDS NOT JUST FROM THE WHITE WATER INDEPENDENT COUNSEL BUT FROM SEVERAL OTHER INDEPENDENT COUNSEL INVESTIGATIONS THAT WERE ONGOING AT THAT TIME — I KNOW, I WAS IN ONE OF THEM — THE WHITE HOUSE REPEATEDLY ASSERTED CLAIMS OF EXECUTIVE PRIVILEGE. MANY OF THOSE CLAIMS LITIGATED FOR MONTHS, NOT WREAKS, AND IN SOME CASES FOR YEARS.SO WHEN I HEAR MR. SCHIFF’S COMPLAINT THAT THE HOUSE’S REQUEST FOR FORMER WHITE HOUSE COUNSEL DON McGAHN’S TESTIMONY GRAND JURY TESTIMONY AND OTHER DOCUMENTS HAVE BEEN DRAWN OUT SINCE APRIL OF LAST YEAR, I CAN ONLY SAY? RESPONSE, BOOHOO. DID I THINK AT THAT TIME THAT MANY OF THOSE CLAIMS WERE FRIVOLOUS AND AN ABUSE OF THE JUDICIAL PROCESS? OF COURSE. THAT WAS THE DETERMINATION OF THE HOUSE JUDICIARY COMMITTEE DURING THE CLINTON IMPEACHMENT. WHAT DID THEY DO ABOUT IT? NOTHING. THE COMMITTEE PROPERLY CONCLUDED THEN THAT THOSE ASSERTIONS OF PRIVILEGE, EVEN IF ILL-FOUNDED, DID NOT CONSTITUTE AN IMPEACHABLE OFFENSE. DID I BELIEVE THAT THE CLINTON ADMINISTRATION’S ACTIONS IN THIS REGARD HAD ADVERSELY IMPACTED OUR INVESTIGATION? YOU BET I DID.AND I SAID SO IN THE FINAL REPORT. BUT NEVER DID I SERIOUSLY CONSIDER THAT THOSE EFFORTS BY THE WHITE HOUSE, ALTHOUGH ENDLESSLY FRUSTRATING AND DAMAGING TO THE INDEPENDENT COUNSEL’S INVESTIGATION, WOULD CONSTITUTE THE CRIME OF OBSTRUCTION OF JUSTICE OR ANY RELATED IMPEACHABLE OFFENSE FOR OBSTRUCTION OF CONGRESS. INSTEAD, I AND MY COLLEAGUES DID THE BEST THAT WE COULD IN REACHING ACCOMMODATION WITH THE WHITE HOUSE, WHERE POSSIBLE, OR THROUGH LITIGATION, WHEN NECESSARY, IN ORDER TO COMPLETE THE TASK AT HAND TO THE BEST OF OUR ABILITY TO DO SO. ANY CONTENTION THAT WHAT HAS TRANSPIRED HERE INVOLVING IN ADMINISTRATION’S ASSERTION OF VALID AND WELL-RECOGNIZED CLAIMS OF PRIVILEGES AND IMMUNITY IS SOMEHOW CONTRARY TO LAW AND IMPEACHABLE IS LUDICROUS. IN SHORT, TO ADD TO THE PARADE OF CRIMINAL OFFENSES NOT SUSTAINED ON THIS IMPEACHMENT, THERE IS NO OBSTRUCTION OF JUSTICE OR OF CONGRESS, PERIOD. THE PRESIDENT CANNOT BE IMPEACHED AND REMOVED FROM OFFICE FOR ASSERTING SUBJECT TO JUDICIAL REVIEW WHAT HE HAS EVERY RIGHT TO ASSERT. THAT IS TRUE NOW AS IT HAS BEEN TRUE OF EVERY PRESIDENT ALL THE WAY BACK TO PRESIDENT GEORGE WASHINGTON.IN SHORT, AS TO BOTH ARTICLES OF IMPEACHMENT, ALL THE PRESIDENT IS ASKING FOR HERE IS BASIC FAIRNESS AND TO BE HELD TO THE VERY SAME STANDARD THAT BOTH HOUSE SPEAKER NANCY PELOSI PROFFERED IN MARCH 2019 AND WHICH PREVIOUSLY WAS ENDORSED DURING THE CLINTON IMPEACHMENT IN STRIKINGLY SIMILAR LANGUAGE BY HOUSE MANAGER JERRY NADLER 20 ODD YEARS AGO IN 1998. THE EVIDENCE MUST BE NOTHING LESS THAN, QUOTE, COMPELLING, OVERWHELMING, AND BIPARTISAN, CLOSE QUOTE. WE AGREE. NO AMOUNT OF WITNESS TESTIMONY, DOCUMENTS, HIGH FIVE’S, FIST BUMPS, SIGNING PENS OR OTHERWISE ARE EVER GOING TO BE SUFFICIENT TO SUSTAIN THIS IMPEACHMENT UNDER THE DEMOCRATS’ OWN STANDARD.WITH THAT, I AM READY TO CONCLUDE. THE PRESIDENT’S ONLY INSTRUCTION TO ME FOR THIS TRIAL WAS A SIMPLE ONE — DO WHAT YOU THINK IS RIGHT. AS A COUNTRY, WE NEED TO PUT A STOP TO DOING ANYTHING AND EVERYTHING THAT WE CAN DO AND START DOING WHAT’S RIGHT AND WHAT NEEDS TO BE DONE IN THE NATION’S BEST INTEREST. A BRAZENLY PARTISAN POLITICAL IMPEACHMENT BY HOUSE DEMOCRATS IS NOT, I SUBMIT, IN THE BEST INTEREST OF THIS COUNTRY BECAUSE IN THE FINAL ANALYSIS, WE WILL ALL BE JUDGED IN THE EYES OF HISTORY ON WHETHER IN THIS MOMENT WE ACTED WITH THE COUNTRY’S OVERRIDING WELFARE FIRMLY IN MIND RATHER THAN IN ADVANCING THE CAUSE OF PARTISAN POLITICAL ADVANTAGE.I HAVE ALWAYS BELIEVED AS AN ARTICLE OF FAITH THAT IN GOOD TIMES AND IN HARD TIMES AND EVEN IN BAD TIMES, WITH MATTERS OF IMPORTANCE AT STAKE THAT THIS COUNTRY GETS THE BIG THINGS RIGHT. I HAVE SEEN THAT IN MY OWN LIFE AND FROM MY OWN EXPERIENCE, EVEN IN WASHINGTON, D.C. WELL, MEMBERS OF THE SENATE, THIS WHAT LIES BEFORE YOU NOW IS JUST SUCH A BIG THING. THE NEXT ELECTION AWAITS. ELECTION DAY IS ONLY NINE MONTHS AWAY. AS SENATOR DALE BUMPERS ELOQUENTLY CONCLUDED IN ARGUING AGAINST PRESIDENT CLINTON’S REMOVAL FROM OFFICE, AND I QUOTE, THAT’S THE DAY WHEN WE REACH ACROSS THE AISLE AND HOLD HANDS, DEMOCRATS AND REPUBLICANS, AND WE SAY WIN OR LOSE, WE WILL ABIDE BY THE DECISION.IT IS A SOLEMN EVENT, PRESIDENTIAL ELECTIONS, AND IT SHOULD NOT, THEY SHOULD NOT BE UNDONE LIGHTLY OR JUST BECAUSE ONE SIDE HAS POLITICAL CLOUT AND THE OTHER ONE DON’T, CLOSE QUOTE. OTHERWISE, AS ABRAHAM LINCOLN WARNED US DURING HIS FIRST INAUGURAL ADDRESS, AND I QUOTE, IF THE MINORITY WILL NOT ACQUIESCE, THE GOVERNMENT MUST CEASE SO THAT IN REJECTING THE MAJORITY PRINCIPLE, ANARCHY IN SOME FORM IS ALL THAT IS LEFT. CLOSE QUOTE. THIS IMPEACHMENT AND THE REFUSAL TO ACCEPT THE RESULTS OF THE LAST ELECTION IN 2016 CANNOT BE LEFT TO STAND. FOR THE REASONS STATED, THE ARTICLES OF IMPEACHMENT, THEREFORE, SHOULD BE REJECTED AND THE PRESIDENT MUST BE ACQUITTED. MEMBERS OF THE SENATE, THANK YOU VERY MUCH.WITH THAT, MR. CHIEF JUSTICE, I YIELD BACK TO MR. SEKULOW. THANK YOU. MR. SEKULOW: MR. CHIEF JUSTICE, WE’RE GOING TO NOW DELVE INTO THE CONSTITUTIONAL ISSUES FOR A BIT, AND OUR PRESENTER IS PROFESSOR ALAN DERSHOWITZ, THE PROFESSOR EMERITUS AT HARVARD LAW SCHOOL. HE SERVED AS A LAW CLERK FOR JUSTICE ARTHUR GOLDBERG OF THE U.S. SUPREME COURT. AT THE AGE OF 28, PROFESSOR DERSHOWITZ BECAME THE YOUNGEST TENURED PROFESSOR AT HARVARD LAW SCHOOL. MR. DERSHOWITZ SPENT 50 YEARS AS AN ACTIVE FACULTY MEMBERS AT LAW SCHOOL TEACHING LAW SCHOOLS IN CLAUSES RANGING FROM CONSTITUTIONAL LAW, CONSTITUTIONAL LITIGATION, LEGAL ETHICS AND CASES ON IMPEACHMENT. HE WILL ADDRESS THE CONSTITUTIONAL ISSUES RAISED BY THESE ARTICLES.MR. DERSHOWITZ: 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, IN 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. 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. 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 EVERETT, 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. 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. 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 CONSTITUTION ANALYSIS BEGINS, WITH THE TEXT OF THE CONSTITUTION GOVERNING IMPEACHMENT. I WILL THEN EXAMINE WHY THE FRAMERS SELECTED THE WORDS THEY DID AS 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. 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 EXPRESSLY 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. 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 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 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. HE ARGUED, AND I QUOTE, THERE CAN BE NO CRIME. THERE CAN BE NO MISDEMEANOR WITHOUT A LAW WRITTEN OR UNWRITTEN EX-EXPRESSED OR IMPLIED. IN SO ARGUING HE WAS HE CAN — ECHOING THE CONCLUSION OF THEODOR WHITE WHO WROTE UNLESS A CRIME IS SPECIFICALLY NAMED IN THE CONSTITUTION, TREASON AND BRIBERY, IMPEACHMENTS LIKE INDICTMENTS CAN ONLY BE SUBSTITUTED 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. 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 NONCRIMINAL BUT OUTRAGEOUS MISBEHAVIOR INCLUDING ONES AKIN TO THE ABUSE OF POWER AND OBSTRUCTION OF CONGRESS. ARTICLE 10 CHARGED JOHNSON DID ATTEMPT TO BRING INTO DISGRACE, RIDICULE, HATRED, CONTEMPT AND REPROACH THE CONGRESS OF THE UNITED STATES. ARTICLE 1 1 CHARGED 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. PRETTY SERIOUS CHARGES. HE’S HOW JUSTICE CURTIS RESPONDED TO THESE NONCRIMINAL 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 COMPLAINTS 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. JUDGE CURTIS’ 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, 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. THE LATE JUSTICE ANTONIN SCALIA GAVE THE FOLLOWING CURRENT EXAMPLE.IF ONE SPEAKS OF MIKI MANTLE, MICHAEL JORDAN AND OTHER GREAT COMPETITORS THE LAST NOUN DOES NOT REASONABLY REFER TO SAM WALTON OR TO NAPOLEON. 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. 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 HAVE BEEN NO NEED FOR ANY CONSTITUTIONAL EXCEPTION. 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 EXPRESSED WORDS OF THE CONSTITUTION, REQUIRES AN ACQUITTAL OR A CONVICTION, JUDGMENTS GENERALLY RENDERED ONLY IN THE TRIAL OF CRIMES. NOW PRESIDENT JOHNSON’S LAWYERS 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’ FIRST POSITION IS THAT THE ARTICLES DID NOT CHARGE AN IMPEACHABLE OFFENSE. ACCORDING TO HARVARD HISSER AND WHY LAW — HISTORIAN AND LAW PROFESSOR, CURTIS’ ARGUMENTS WERE PERSUASIVE TO SOME SENATORS WHO WERE NO FRIENDS OF PRESIDENT JOHNSON, INCLUDING THE COAUTHORS OF THE 13th AND 14th AMENDMENTS.JUDGE CURTIS GAVE US THE LAW AND WE FOLLOWED IT. SENATOR JAMES W. GRIMES ECHOED CURTIS’ 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 IMPEACHMENT AND REMOVAL WITHOUT THE VIOLATION OF LAW WOULD BE CONSTRUED INTO APPROVAL OF IMPEACHMENTS AS PART OF THE FUTURE POLITICAL MACHINERY. JUSTICE ACCORDING TO IS’ 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. TODAY PROFESSOR BOWIE HAS AN ARTICLE IN “THE NEW YORK TIMES” IN WHICH HE REPEATS HIS VIEW, IMPEACHMENT REQUIRES A CRIME.HE NOW ARGUES THIS THE — ARTICLES OF IMPEACHMENT DO CHARGE CRIMES. IN 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. SO PROFESSOR BOWIE 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. I’M NOT HERE ARGUING THAT THE CURRENT DISTINGUISHED MEMBERS OF THE SENATE ARE IN ANY WAY LEGALLY BOUND BY JUSTICE CURTIS’ ARGUMENTS OR THOSE OF DEAN DWIGHT, BUT I AM ARGUING THAT YOU SHOULD GIVE THEM SERIOUS CONSIDERATION, THE CONSIDERATION TO WHICH THEY ARE 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.NOW I WANT TO BE CLEAR THERE IS A NUANCED DIFFERENCE BETWEEN THE ARGUMENTS MADE BETWEEN CURTIS AND DWIGHT AND THE ARGUMENT I AM PRESENTING HERE TODAY. CURTIS ARGUED THERE MUST BE A SPECIFIC VIOLATION OF PREEXISTING LAW. HE RECOGNIZED AT THE TIME OF THE CONSTITUTION THERE WERE NO FEDERAL CRIMINAL STATUTES. OF COURSE NOT. 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 OF IMPEACHMENT TO CRIMINAL LIKE BEHAVIOR. JUSTICE CURTIS ADDRESSED THAT ISSUE HEAD ON. HE POINTED OUT 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 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. BUT WHAT JUSTICE CURTIS SAID IS THAT YOU COULD INCLUDE LAWS WRITTEN OR UNWRITTEN OR EXPRESSED OR IMPLIED BY WHICH HE MEANT COMMON LAW WHICH AT THE TIME OF THE CONSTITUTION THERE ABOUT MANY COMMON LAW CRIMES AND THEY WERE ENFORCEABLE, EVEN FEDERALLY UNTIL THE SUPREME COURT MANY YEARS LATER DECIDED THAT CRIME LAW CRIMES WERE NO LONGER PART OF FEDERAL JURISDICTION. THE POSITION I DERIVED FROM THE HISTORY WOULD INCLUDE, AND THIS IS A WORD THAT HAVE UPSET SOME PEOPLE, WOULD INCLUDE CRIMINAL-LIKE CONDUCT AKIN TO TREASON AND BRIBERY. THERE MAY NOT BE CONCLUSIVE EVIDENCE OF A TECHNICAL CRIME THAT WOULD THESELY RESULT IN A CRIMINAL CONVICTION. 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 IMPEACH ANNUAL OFFENSES BECAUSE THESE CRIMES, THOUGH NOT SPECIFIED IN THE CONSTITUTION ARE AKIN TO TREASON AND BRIBERY. 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. PLEAS UNDERSTAND WHAT I — PLEASE UNDERSTAND WHAT I AM ARGUING, CRIMINALLY — ABUSE OF POWER AND OBSTRUCTION OF CONGRESS ARE OUTSIDE THE RANGE OF IMPEACHABLE OFFENSES. THAT IS THE KEY ARGUMENT. THIS VIEW WAS SUPPORTED BY TEXT WRITERS AND JUDGES. WELCOME ALDWELL RUSSELL WHOSE TREATEES ON CRIMINAL LAW WAS A BIBLE AMONG CRIMINAL LAW SCHOLARS DEFINED HIGH CRIMES AND MISDEMEANORS SUCH IMMORAL AND UNLAWFUL ACTS AS ARE NEARLY APPLIED AND EQUAL IN GUILT TO A FELONY AND YET OH,ING TO THE ABSENCE OF SOME — OWING TO THE ABSENCE OF SOME TECHNICAL CIRCUMSTANCES DO NOT FALL WITHIN THE DEFINITION OF A FELONY.SIMILAR VIEWS WERE EXPRESSED BY SOME STATE COURTS, OTHERS DISAGREE. CURTIS’ CONSIDERED VIEWS AND THOSE OF DWIGHT, RUSSELL AND OTHERS BASED ON THE STUDY OF TEXT AND HISTORY ARE NOT BONGERS OR OTHER DEMEANING EPITHETS THROWN AROUND BY PARTISAN SUPPORTERS OF THIS IMPEACHMENT. AS JUDGE STARR POINTED OUT, THEY HAVE 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’ TEXTUAL ANALYSIS ARE OBLIGED TO RESPOND WITH COUNTER INTERPRETATIONS, NOT NAME CALLING.IF JUSTICE CURTIS’ ARTS AND THOSE OF DEAN WHITE ARE REJECTED, I THINK PROPONENTS OF IMPEACHMENT MUST OFFER ALTERNATIVE PRINCIPLES, ALTERNATIVE STANDARDS FOR IMPEACHMENT AND REMOVAL. WE HEARD IN 1970, CONGRESSMAN GERALD FORD, WHO I GREATLY ADMIRED SAID THE FOLLOWING, IN THE CONTEXT OF AN IMPEACHMENT OF A JUSTICE, AN IMPEACHABLE OFFENSE IS WHATEVER THE MAJORITY OF THE HOUSE OF REPRESENTATIVES CONSIDER IT TO BE IN A GIVEN MOMENT OF HISTORY. YOU ALL KNOW THE QUOTE. CONGRESSWOMAN MAXINE WATERS PUT IT THIS WAY RECENTLY — 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. 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 GOVERNOR 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 BY LAWYERS AT THE TIME OF THE CONSTITUTION’S ADOPTION.THERE WERE, AT THE TIME OF THE CONSTITUTION’S ADOPTION, TWO GREAT DEBATES THAT WENT ON, AND IT’S VERY IMPORTANT TO UNDERSTAND THE DISTINCTION BETWEEN THESE TWO GREAT DEBATES. 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.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, INCAST, PECULATION AND MALL ADMINISTRATION. — AND MALADMINISTRATION. THEY WORRIED THAT A PRESIDENT MIGHT, QUOTE, PERVERT HIS ADMINISTRATION INTO A SCHEME OF SPECULATION AND OPPRESSION. 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. THE GREAT FALLACY OF MANY CONTEMPORARY SCHOLARS AND PUNDITS AND WITH DUE RESPECT, MEMBERS OF THE HOUSE OF REPRESENTATIVES, IS THAT THEY FAILED 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.LET ME GIVE YOU A HYPOTHETICAL EXAMPLE THAT MIGHT HAVE — 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.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. AND 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 FEARED A PRESIDENT MIGHT COMMIT, SHOULD BE IMPEACHABLE, AS DISTINGUISHED FROM THOSE LEFT TO THE VOTERS TO EVALUATE. 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 CREATE OF THE LEGISLATURE. MORRIS WAS AGAINST THE DEPENDENCE OF ON THE LEGISLATUR, CONSIDERING THE LEGISLATURE, YOU WILL PARDON ME, QUOTING THIS, A GREAT DANGER TO BE APPREHENDED. I DON’T AGREE WITH THAT. JAMES MADISON EXPRESSED CONCERNS ABOUT THE PRESIDENT BEING IMPROPERLY DEPENDENT ON THE LEGISLATURE. OTHERS WORRIED ABOUT A FEEBLE EXECUTIVE. HEARING THESE AND OTHER ARGUMENTS IN WHICH THE LEGISLATOR HAD THE POWER TO REMOVE THE PRESIDENT, THE FRAMERS SET OUT TO STRIKE THE APPROPRIATE BALANCE TO VOTE FOR A PROVISION AUTHORIZING THE IMPEACHMENT OF A PRESIDENT AND THE NEED FOR SPECIFIC CRITERIA NOT SUBJECT TO LEGISLATIVE ABUSE OR OVER USE.AMONG THE CRITERIA PROPOSED WERE MALPRACTICE, NEGLECT OF DUTY, MALCONDUCT, NEGLECT IN THE EXECUTION OF OFFICE, AND AND THIS WORD WE’LL COME BACK TO TALK ABOUT, MALADMINISTRATION. IT WAS A RESPONSE TO THAT LAST TERM, A TERM USED IN BRITAIN WILL BE EQUIVALENT TO A TENURE DURING THE PLEASURE OF THE SENATE. UPON HEARING MADISON’S OBJECTIONS, COLONEL MASON WITHDREW MALADMINISTRATION AND SUBSTITUTED OTHER CRIMES HIGH CRIMES AND MISDEMEANORS. HAD A DELEGATE PROPOSED INCLUSION OF ABUSE OF POWER OR OBSTRUCTION OF CONGRESS AS CRITERIA FOR IMPEACHMENT, HISTORY STRONGLY SUGGESTS THAT MADISON WOULD HAVE SIMILARLY OPPOSED IT AND IT WOULD HAVE BEEN OBJECTED. I WILL COME BACK TO THAT ARGUMENT LATER ON WHEN I TALK SPECIFICALLY ABOUT ABUSE OF POWER. INDEED, MAD SORN WORRIED THAT — MADISON WORRIED THAT A PARTISAN LEGISLATOR COULD USE MISDEMEANORS TO INCLUDE A BROAD ARRAY OF NONCRIMES AND MOVED TO MOVE 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 OF MISDEMEANORS TO INCLUDE BROAD TERMS LIKE MISDEMEANORS, HE FEARED IT COULD BE ABUSED.THE MISUSE OF THE TERM HIGH CRIMES MISDEMEANORS BY THE HOUSE IN THIS CASE. NOW THE BEST EVIDENCE THAT THE BROAD CONCERNS CITED BY THE FRAMERS TO JUSTIFY IMPEACHMENT WERE NOT AUTOMATICALLY ACCEPTED BY CRITERIA IS THE MANNER BY WHICH THE WORD INCAPACITY. FOCUS ON THAT WORD, INCAPACITY WAS TREATED. MADISON AND OTHERS FOCUSED ON THE PROBLEM OF WHAT HAPPENS IF A PRESIDENT BECOMES INCAPACITATED. CERTAINLY A PRESIDENT WHO IS 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. WHEN IT CAME TIME TO ESTABLISH AND CRITERIA FOR ACTUALLY REMOVING A PRESIDENT IN CAPACITY WAS NOT INCLUDED. WHY NOT? PRESUMABLY BECAUSE IT WAS TOO VAGUE AND SUBJECTIVE A TERM. AND WHEN WE HAD AN INCAPACIATED 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 IS BECAUSE IT’S NOT A CRIME. IT’S NOT AKIN TO TREASON OR BRIBERY AND IT’S NOT A HIGH CRIME AND MISDEMEANOR. IT IS BELIEVED IT MUST BE CRIMINAL IN NATURE AND AKIN TO THE SIMILAR CRIMES. INCAPACITY DID NOT FIT INTO THIS CATEGORY. NOTHING CRIMINAL ABOUT IT. THE CONSTITUTION HAD TO BE AMENDED TO INCLUDE A DIFFERENT CATEGORY OF NONCRIMINAL BEHAVIOR THAT WARRANTED REMOVAL. I URGE YOU TO CONSIDER SERIOUSLY THAT IMPORTANT PART OF THE HISTORY OF THE ADOPTION OF OUR CONSTITUTION. I THINK THAT BLACKSTONE AND HAMILTON ALSO SUPPORT THIS VIEW.THERE IS 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 OF THE FACT THAT THE WORD MISDEMEANOR WAS WITH A SPECIES OF CRIME. THE BOOK THAT WAS MOST OFTEN DEEMED AUTHORITATIVE WAS WRITTEN BY WILLIAM BLACKSTONE IN GREAT BRYNN. HERE IS WHAT HE SAYS ABOUT — GREAT BRITAIN, HERE IS WHAT HE SAYS.A CRIME OR MISDEMEANOR IS AN ACT COMMITTED OR OMITTED IN VIOLATION OF A PUBLIC LAW EITHER FORBIDDING OR COMMANDING IT. THIS GENERAL DEFINITION COMPREHENDS BOTH CRIMES AND MISDEMEANORS, WHICH PROPERLY SPEAKING, ARE MERE SYNONYMOUS TERMS. MERE SYNONYMOUS TERMS. HE THEN WENT ON THOUGH IN COMMON USE, THE WORD CRIMES IS MADE TO DENOTE OF THAT THAT IS A DEEPER DYE, WHILE OMISSIONS OF LESS CONSEQUENCE ARE UNDER MISDEMEANORS ONLY.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 FOWL, YOU COULD BE TRIED. THERE WERE MISDEMEANORS THAT WOULD CAPITAL IN NATURE. MOREOVER BLACKSTONE WROTE THAT PAL MEANTRY IMPEACHMENT IS A PROSECUTION OF A READY KNOWN AND — ALREADY KNOWN AND ESTABLISHED LAW PRESENTED TO THE MOST HIGH AND SUPREME COURT OF CRIMINAL JUST DICTION ANALOGOUS TO THIS GREAT COURT. HE OBSERVED THAT A COMMONER COULD BE IMPEACHED 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. HAMILTON IS A LITTLE LESS CLEAR IN THIS ISSUE AND NOT SURPRISINGLY BECAUSE HE WAS WRITING IN FEDERALIST NUMBER 65, HE WAS WRITING NOT TO DEFINE WHAT THE CRITERIA FOR IMPEACHMENT WERE, HE WAS WRITING IN DEFENSE OF THE CONSTITUTION AS WRITTEN UNLESS TO DEFINE ITS PROVISIONS.BUT HE CERTAINLY CANNOT BE CITED IN FAVOR OF CRITERIA SUCH AS ABUSE OF POWER, OBSTRUCTION OF CONGRESS, NOR OF IMPEACHMENT VOTED ALONG PARTY LINES. 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 INSISTS THAT HAMILTON IS ON THEIR SIDE, AND THEY CITE THE FOLLOWING WORDS REGARDLESS THE COURT OF IMPEACHMENT.AND I THINK I HAVE HEARD THESE WORDS QUOTED MORE THAN ANY OTHER WORDS IN SUPPORT OF A BROAD VIEW OF IMPEACHMENT, AND THEY ARE MISUNDERSTOOD. 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 MANDATE OR THE ABUSE OR VIOLATION OF SOME PUBLIC TRUST. THAT IS A MISREADING. 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 WAS WHETHER CLINTON’S ALLEGED CRIME COULD BE CLASSIFIED AS A HIGH CRIME IN LIGHT OF ITS PERSONAL NATURE. DURING THE CLINTON IMPEACHMENT, I STATED IN AN INTERVIEW THAT I DID NOT THINK THAT A TECHNICAL CRIME WAS REQUIRED BUT 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 COUNTERARGUMENTS, 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 NONCRIMINAL ACCUSATIONS SUCH AS ABUSE OF POWER AND OBSTRUCTION OF CONGRESS. I PUBLISHED THIS ACADEMIC CONCLUSION WELL BEFORE I WAS ASKED TO PRESENT THE ARGUMENTS TO THE SENATE IN THIS CASE. MY 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 EXPRESSED 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, PROFESSOR LAURENCE 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 ACT CAMDENICS — 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. 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, JUSTICE FRANKFURTER, JUSTICE ANTONIN SCALIA, AND OTHERS. APPLYING THAT RULE TO THE INTERPRETATION OF HIGH CRIMES AND MISDEMEANORS WOULD REQUIRE THAT THESE WORDS BE CONSTRUED NARROWLY TO REQUIRE CRIMINAL 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 QUESTIOE POLICIES UNDERLYING THAT RULE ARE WORTHY AND DESERVING OF CONSIDERATION AS GUIDES TO CONSTITUTIONAL INTERPRETATION. 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 A 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. ABUSE OF POWER IS AN ACCUSATION EASILY LEVELED BY POLITICAL OPPONENTS AGAINST CONTROVERSIAL PRESIDENTS. 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 MANAGERS’ VIEW OF THE CONSTITUTION. GEORGE WASHINGTON, REFUSAL TO TURN OVER DOCUMENTS RELATED TO THE JAY TREATY. JOHN ADAMS, SIGNING AND ENFORCING THE ALIENIST SEDITION LAWS. THOMAS JEFFERSON, PURCHASING LOUISIANA WITHOUT CONGRESSIONAL AUTHORIZATION. I WILL GO ON, JOHN QUINCY ADAMS, MARTIN VANBUREN, JOHN TYLER, ABUSE OF THE VETO POWER, JAMES POLK. ABRAHAM LINCOLN ACCUSED POLK OF ABUSING THE POWER OF HIS OFFICE, USURPING THE ROLE OF CONGRESS AND TAKING THE ROLE OF DICTATOR. ABRAHAM LINCOLN WAS ACCUSED OF ABUSING HIS POWER FOR SUSPENDING THE WRIT OF HABEAS CORPUS. PRESIDENT GRANT, GROVER CLEVELAND, THEODORE ROOSEVELT, WOODROW WILSON, FRANKLIN ROOSEVELT, HARRY TRUMAN, JIMMY CARTER, RONALD REAGAN, QUOTE, CONCERNING IRAN CONTRA, PROFESSOR LAUREN TRIBE SAID THE FOLLOWING, QUOTE, THEREIN LIES WHAT APPEARS TO BE THE MOST SERIOUS BREACH OF DUTY BY THE PRESIDENT, A BREACH THAT MAY 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 HAVE 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 ABOUT 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. OBAMA OBAMA, THE HOUSE COMMITTEE UNDER THE JUDICIARY HELD AN ENTIRE HEARING ENTITLED OBAMA ADMINISTRATION ABUSE OF POWER. 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 LECH TRAL PROSPECTS ELECTORAL PROSPECTS.PRESIDENTS OFTEN HAVE MIXED MOTIVES THAT INCLUDE PARTISAN PERSONAL BENEFITS ALONG WITH NATIONAL INTERESTS. PROFESSOR JOSH BLACKMAN PROVIDED THE EXAMPLE. DURING THE HEIGHT OF THE CIVIL WAR PRESIDENT LINCOLN ENCOURAGED GENERAL SHERMAN TO ALLOW COLONELS IN THE FIELD TO ALLOW INDIANA TO VOTE. WHAT WAS THE PRIMARY MOTIVATION? 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 RISKED UNDERCUTTING THE MILITARY EFFORT BY DEPLETING THE RANKS. MOREOVER DURING THIS TIME SOLDIERS FROM THE REMAINING STATES FACED 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, END QUOTE. PROFESSOR BLACKMAN DREW THE FOLLOWING RELEVANT CONCLUSION FROM THIS AND OTHER HISTORICAL EENCHLTS. EVENTS. POLITICIANS 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 OFFICIALS REELECTION, ALL POLITICSES, HE SAID — 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 PSYCHO ANALYZE THE PRESIDENT AND ATTRIBUTE TO HIM A SINGLE LAR SELF-SERVING MOTIVE. 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 PROBED FOR WHAT WAS THE REAL REASON, WHY YOU ACTED? EVEN IF A PRESIDENT WERE — AND IT CLEARLY SHOWS IN MY MIND THAT THE FRAMERS COULD NOT HAVE INTENDED THIS PSYCHO ANALYTIC TO MOTIVES TO DETERMINE WHAT IS IMPEACHABLE AND WHAT IS NOT.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 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. 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 ABUSE OF 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 ABUSE OF POWER BASED ON DECISIONS ABOUT MIXED OR SOLE MOTIVES THAT THE PRESIDENT WAS INTERESTED ONLY IN HELP HYMNS DEMONSTRATE THE — HIMSELF DEMONSTRATE THE DANGERS OF EMPLOYING THE VAGUE SELECTIVE AND POLITICALLY MALEABLE PHRASE ABUSE OF POWER CRITERIA FOR REMOVAL OF A PRESIDENT.IT FOLLOWS, IT FOLLOWS FROM THIS THAT IF A PRESIDENT, ANY PRESIDENT WERE TO HAVE DONE WHAT 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 ABUSE OF 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 TERMS AS ABUSE OF POWER TO BE WEAPONIZED AS A TOOL OF IMPEACHMENT. IT IS 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. YOU WILL 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 IS NO DOUBT ABOUT THAT BECAUSE THE FRAMERS EXPLICITLY REJECTED MALADMINISTRATION. WHAT IS 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 BOWIE 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. BLACKSTONE DENOMINATED MALADMINISTRATION AS A HIGH MISDEMEANOR, PUNISHABLE WHEREAS SUCH PENALTY SHORT OF DEATH ARE INL BEING THE FLICTED. YOU CAN BE IN PRISON FOR MALADMINISTRATION. DESPITE THIS BRITISH HISTORY, MADISON INSISTED THAT IT 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 PARLIAMENTY STYLE DEMOCRACY IN WHICH THE CHIEF EXECUTIVE CAN BE REMOVED FROM OFFICE SIMPLY BY A VOTE OF NONCONFIDENCE.THAT’S WHAT THEY DIDN’T WANT. 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 REJECTED ABUSE. HE NO OTHER FRAMERS INCLUDED OBSTRUCTION OF CONGRESS AS AMONG THE CRITERIA. IT TOO VAGUE, INDEFINABLE ESPECIALLY IN A CONSTITUTIONAL SYSTEM IN WHICH ACCORDING TO TO HAMILTON IN FEDERALIST 78 THE LEGISLATIVE BODY IS NOT THEMSELVES THE CONSTITUTIONAL JUDGE OF THEIR OWN POWERS AND THE INSTRUCTION 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 OUR AUTHORITY. UNDER OUR SYSTEM OF SEPARATION OF POWERS AND CHECKS AND BALANCES THERE 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.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 CRY TEAR THAT COULD BE APPLIED TO ONE PERSON IN ONE WAY AND ANOTHER PERSON IN ANOTHER WAY, AND THEY BOTH FIT WITHIN THE TERMS ABUSE OF POWER. A FEW EXAMPLES WILL ILLUSTRATE THE DANGERS OF STANDARDLESS IMPEACHMENT CRITERIA. PROFESSOR NOAH FELDMAN ARGUED 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 ALLEN LICKMAN ARGUED THAT THE PRESIDENT COULD BE IMPEACHED BASED ON HIS CLIMATE CHANGE POLICY WHICH HE REGARDS IS A CRIME AGAINST HUMANITY. I HAVE TO TELL YOU I DISAGREE WITH OUR PRESIDENT’S CLIEX POLICY AS I — CLIMATE CHANGE POLICY AS I DO WITH MANY OF HIS OTHER POLICIES. BUT THAT’S NOT A CRITERIA FOR IMPEACHMENT. THAT IS A CRITERIA OF DECIDING WHO YOU’RE GOING TO VOTE FOR. IF YOU DON’T LIKE A 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. 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 ABUSE OF POWER, PRESIDENT RONALD REAGAN SHOULD HAVE BEEN IMPEACHED. WOULD ANY AMERICAN TODAY ACCEPT THE LEGAL SYSTEM IN WHICH PROSECUTORS COULD CHARGE A CITIZEN WITH ABUSIVE CONDUCT? COULD YOU IMAGINE A CRIME, ABUSIVE CONDUCT? FORTUNATELY WE HAVE CONSTITUTIONAL PROTECTIONS AGAINST A STATUTE THAT, QUOTE, EITHER FORBIDS OR REQUIRES THE DOING OF AN ACT AND TERM 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.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, NONCONSTITUTIONAL GROUNDS SUCH AS ABUSE OF POWER OR OBSTRUCTION OF CONGRESS WOULD CREATE A DANGEROUS PRECEDENT AND BE CONSTRUED IN THE WORDS OF SENATOR JAMES INGRIMES 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 THE FACT THAT A LONG LIST OF PRESIDENTS THAT WERE ACCUSED OF ABUSE OF POWER WERE NOT IMPEACHED DEMONSTRATES HOW THIS CAN BE USED IN THE CONTEXT OF IMPEACHMENT.I’M SORRY, HOUSE MANAGERS, YOU JUST PICKED THE WRONG CRITERIA. YOU PICKED 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 ARE — HAD IN MIND THAT THEY SO CLEARLY VIOLATE THE CONSTITUTION AND WOULD PLACE CONGRESS ABOVE THE LAW. NOW, NOR ARE THESE VAGUE, OPEN-ENDED CONSTITUTIONAL ARGUMENTS OF IMPEACHMENT THAT ARE CHARGED HERE, THEY ARE NOT SAVED BY THE INCLUSION OF THESE ARTICLES BY SOMEWHAT MORE SPECIFIC BUT STILL NONCRIMINAL TYPE CONDUCT.THE SPECIFICATIONS ARE OPEN-ENDED. THEY INCLUDE 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 OF A CRIMINAL INDICTMENT MIGHT BE HELPFUL IF A DEFENDANT WERE ACCUSED OF DISHONESTY, IT WOULDN’T MATTER THAT THE INDICTMENT LISTED AS WELL THE MEANS TOWARD DISHONESTY FAR MORE SPECIFIC POTENTIAL EE OFFENSES. IT’S NOT IN THE STATUTES. 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 WITH — BE BASED ON A BUNCHING TOGETHER OF NONIMPEACHABLE SINCE NONE OF WHICH STANDING ALONE REACH THE CONSTITUTIONAL CRITERIA.ONLY IF IT REACHES ONE CONSTITUTIONALLY AUTHORIZED OFFENSES PROVED, CAN THE CONGRESS DECIDE 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 NONCRIMINAL. BUT YOU HAVE NO JURISDICTION TO REMOVE UNLESS THERE IS AT LEAST ONE IMPEACHABLE OFFENSE WITHIN THE MEANING OF HIGH CRIMES AND MISDEMEANORS. IN THE THREE DAYS OF ARGUMENT THE HOUSE MANAGERS TOSSED AROUND WORDS EVEN VAGUER THAN ABUSE AND OBSTRUCTION TO JUSTIFY THEIR CASE FOR REMOVAL. IT 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 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 RECUSED 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 OF GOVERNMENT WOULD BE NECESSARY. THE FRAMERS UNDERSTOOD IF THEY SET THE CRITERIA FOR IMPEACHMENT TOO FEW WOULD BE SERVING THEIR TERMS.IT WOULD BE AS THE — THEY SET THE STANDARDS HIGH, REQUIRING NOT SINFUL BEHAVIOR, NOT DISHONESTY, TRUST 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 DURING THE IMPEACHMENT PROCEEDING THERE HAVE BEEN FEW ATTEMPTS TO RESPOND TO MY ARGUMENTS AND OTHER PEOPLE’S ARGUMENTS OPPOSED TO THE IMPEACHMENT OF THIS PRESIDENT.INSTEAD, OF ANSWERING MY ARGUMENTS AND THOSE OF JUSTICE CURTIS AND PROFESSOR BOWY AND OTHERS, ON THEIR MERITS AND POSSIBLE DEMERITS THEY HAVE BEEN REJECTED WITH NEGATIVE EPITHETS. I ENCOURAGE SENATORS TO IGNORE THE EPITHETS AND LOOK AT THE — VAGUENESS OF ABUSE OF POWER AND OBSTRUCTION OF CONGRESS. I NOW OFFER A CRITERIA FOR EVALUATING CONFLICTING ARGUMENTS. THE CRITERIA THAT I OFFER I LONG CALLED THE SHOW ON THE OTHER FOOT TEST. IT IS A VARIATION OF THE TEST PROPOSED BY THE GREAT LEGAL AND POLITICAL THINKER AND MY FORMER COLLEAGUE, JOHN RAWLES. IT IS SIMPLE IN ITS STATEMENT BUT DIFFICULT IN APPLICATION. I RESPECTFULLY EACH OF YOU TO IMAGINE THAT THE PERSON BE BEING IMPEACHED WERE OF THE OPPOSITE PARTY OF THE CURRENT PRESIDENT BUT THAT IN ANY OTHER RESPECT THE FACTS WERE THE SAME.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 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 OPPOSED IMPEACHMENT OF PRESIDENT BILL CLINTON. I EVALUATED THE SUPREME COURT DECISION IN BUSH VERSUS GORE AND HOW THEY WOULD HAVE VOTED IF IT WERE BUSH RATHER THAN GORE SEEKING A RECOUNT. I WAS ON THE O IT — OTHER SIDE OF THAT ISSUE. 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 NOW RESPECTFULLY ASK THIS DISTINGUISHED CHAMBER TO CONSIDER THAT TEST IN EVALUATING THE ARGUMENTS THAT OCCURRED IN THIS HISTORIC CHAMBER. IT IS AN IMPORTANT TEST BECAUSE HOW YOU VOTE ON THIS CASE WILL SERVE AS A PRECEDENT TO 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. 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. 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 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. THE PRESIDING OFFICER: THE MAJORITY LEADER IS RECOGNIZED. I’M SORRY. ARE YOU COMPLETE? MR. CIPOLLONE. MR. CIPOLLONE: THANK YOU, MR. CHIEF JUSTICE. MAJORITY LEADER McCONNELL, DEMOCRATIC LEADER SCHUMER, SENATORS. DON’T WORRY. THIS WON’T TAKE VERY LONG. WE’RE GOING TO STOP FOR THE DAY, AND WE’LL CONTINUE WITH OUR PRESENTATIONS TOMORROW. BUT I JUST HAD THREE OBSERVATIONS THAT I WANTED TO BRIEFLY MAKE FOR YOU. FIRST OF ALL, THANK YOU VERY MUCH, PROFESSOR DERSHOWITZ, AND ALL THE PRESENTERS FROM OUR SIDE TODAY. I WAS SITTING HERE LISTENING TO PROFESSOR DERSHOWITZ, AND BELIEVE IT OR NOT, MY MIND WENT BACK TO LAW SCHOOL. AND I BEGAN THINKING HOW WOULD THIS IMPEACHMENT LOOK AS A LAW SCHOOL HYPOTHETICAL QUESTION ON AN EXAM? HOW WOULD WE ANSWER THAT QUESTION? AND I FOUND MYSELF THINKING MAYBE THAT’S A GOOD WAY TO THINK ABOUT IT.THE QUESTION WOULD GO SOMETHING LIKE THIS — IMANE YOU ARE A UNITED STATES SENATOR AND YOU ARE SITTING IN AN IMPEACHMENT TRIAL. THE ARTICLES OF IMPEACHMENT BEFORE YOU HAVE BEEN PASSED ON A PURELY PARTISAN BASIS FOR THE FIRST TIME IN HISTORY. IN FACT, THERE WAS BIPARTISAN OPPOSITION TO THE ARTICLES OF IMPEACHMENT. THEY HAVE BEEN TRYING TO IMPEACH THE PRESIDENT FROM THE MOMENT OF HIS INAUGURATION FOR NO REASON, JUST BECAUSE HE WON. THE ARTICLES BEFORE YOU DO NOT ALLEGE A CRIME OR ANY — OR EVEN ANY VIOLATION OF THE CIVIL LAW.ONE ARTICLE ALLEGES OBSTRUCTION OF CONGRESS SIMPLY FOR EXERCISING LONG-STANDING CONSTITUTIONAL RIGHTS THAT EVERY PRESIDENT HAS EXERCISED. THE PRESIDENT WAS GIVEN NO RIGHTS IN THE HOUSE OF REPRESENTATIVES. THE JUDICIARY COMMITTEE CONDUCTED ONLY TWO DAYS OF HEARINGS. YOU ARE SITTING THROUGH YOUR SIXTH DAY OF TRIAL. THE HOUSE IS DEMANDING WITNESSES FROM YOU THAT THEY REFUSED TO SEEK THEMSELVES. WHEN CONFRONTED WITH EXPEDITED COURT PROCEEDINGS REGARDING SUBPOENAS THEY HAD ISSUED, THEY ACTUALLY WITHDREW THOSE SUBPOENAS. THEY ARE NOW CRITICIZING YOU IN STRONG, ACCUSATORY LANGUAGE IF YOU DON’T CAPITULATE TO THEIR UNREASONABLE DEMANDS AND SIT IN YOUR SEATS FOR MONTHS. AN ELECTION IS ONLY MONTHS AWAY, AND FOR THE FIRST TIME IN HISTORY, THEY ARE ASKING YOU TO REMOVE A PRESIDENT FROM THE BALLOT. THEY ARE ASKING YOU TO DO SOMETHING THAT VIOLATES ALL PAST HISTORICAL PRECEDENTS THAT YOU HAVE STUDIED IN THIS CLASS, AND PRINCIPLES OF DEMOCRACY, AND TAKE THE CHOICE AWAY FROM THE AMERICAN PEOPLE.IT WOULD TEAR APART THE COUNTRY FOR GENERATIONS AND CHANGE OUR CONSTITUTIONAL SYSTEM FOREVER. QUESTION — WHAT SHOULD YOU DO? YOUR FIRST THOUGHT MIGHT BE THAT’S NOT A REALISTIC HYPOTHETICAL. THAT COULD NEVER HAPPEN IN AMERICA. BUT THEN YOU WOULD BE HAPPY BECAUSE YOU WOULD HAVE AN EASY ANSWER AND YOU CAN BE DONE WITH YOUR LAW SCHOOL EXAM, AND IT WOULD BE YOU IMMEDIATELY REJECT THE ARTICLES OF IMPEACHMENT. BONUS QUESTION. SHOULD YOUR ANSWER DEPEND ON YOUR POLITICAL PARTY? ANSWER, NO. MY SECOND OBSERVATION IS THAT I ACTUALLY THINK IT’S VERY INSTRUCTIVE TO WATCH THE OLD VIDEOS FROM THE LAST TIME THIS HAPPENED. WHEN MANY OF YOU WERE MAKING SO ELOQUENTLY, MORE ELOQUENTLY THAN WE ARE THE ARGUMENTS ABOUT THE LAW AND THE PRECEDENT. BUT THAT’S NOT PLAYING A GAME OF GOTCHA. THAT’S PAYING YOU A COMPLIMENT. YOU WERE RIGHT ABOUT THOSE PRINCIPLES. YOU WERE RIGHT ABOUT THOSE PRINCIPLES. AND IF YOU WON’T LISTEN TO ME, I WOULD URGE YOU TO LISTEN TO YOUR YOUNGER SELVES. YOU WERE RIGHT. AND THE THIRD OBSERVATION IN SITTING HERE TODAY, JUDGE STARR TALKED ABOUT THAT WE’RE IN THE AGE OF IMPEACHMENT.IN THE AGE OF CONSTANT INVESTIGATIONS. IMAGINE — IMAGINE — IMAGINE IF ALL OF THAT ENERGY WAS BEING USED TO SOLVE THE PROBLEMS OF THE AMERICAN PEOPLE. IMAGINE IF THE AGE OF IMPEACHMENT WAS OVER IN THE UNITED STATES. IMAGINE THAT. AND I WAS LISTENING TO PROFESSOR DERSHOWITZ TALK ABOUT THE SHOE ON OTHER FOOT RULE, AND IT MAKES A LOT OF SENSE. I WOULD PUT IT A LITTLE DIFFERENTLY. I WOULD CALL IT THE GOLDEN RULE OF IMPEACHMENT FOR THE DEMOCRATS THE GOLDEN RULE COULD BE, DO UNTO REPUBLICANS AS YOU WOULD HAVE THEM DO UNTO DEMOCRATS, AND HOPEFULLY WE WILL NEVER BE IN ANOTHER POSITION IN THIS COUNTRY WHERE WE HAVE ANOTHER IMPEACHMENT, BUT VICE VERSA FOR THAT RULE. THOSE ARE MY THREE OBSERVATIONS. I HOPE THAT’S HELPFUL. THOSE WERE THE THOUGHTS I HAD LISTENING TO THE PRESENTATIONS. BUT AT THE END OF THE DAY, THE MOST IMPORTANT THOUGHT IS THIS. THIS CHOICE BELONGS TO THE AMERICAN PEOPLE. THEY WILL GET TO MAKE IT MONTHS FROM NOW.THE CONSTITUTION AND COMMON SENSE AND ALL OF OUR HISTORY PREVENT YOU FROM REMOVING THE PRESIDENT FROM THE BALLOT. THERE’S NO BASIS FOR IT IN THE FACTS. THERE’S SIMPLY NO BASIS FOR IT IN THE LAW. AND I WOULD URGE YOU TO QUICKLY COME TO THAT CONCLUSION SO WE CAN GO HAVE AN ELECTION. THANK YOU VERY MUCH FOR YOUR ATTENTION AND THANK YOU, MR. CHIEF JUSTICE. THE PRESIDING OFFICER: THE MAJORITY LEADER IS RECOGNIZED. MR. McCONNELL: MR. CHIEF JUSTICE, I ASK UNANIMOUS CONSENT THAT THE TRIAL ADJOURN UNTIL 1:00 P.M. TUESDAY, JANUARY 28, AND THIS ORDER ALSO CONSTITUTE THE ADJOURNMENT OF THE SENATE. THE PRESIDING OFFICER: WITHOUT OBJECTION, WE ARE ADJOURNED. ADJOURN:.

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