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tv   U.S. Senate Debate on Trial Rules  CSPAN  January 22, 2020 1:51am-3:23am EST

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trial resumed and throughout the day house managers in the president's attorney debated a number of amendments adopted by chuck schumer all of those rejected by the partyline vote. the trial will resume later today on c-span2 and on the web this takes you back from earlier tuesday on the senate floor. >> the senate will convene as a court of impeachment. if there is no objection with the preceding of the trial are approved i am aware of one senator present who could not take the oath last thursday please rise and raise your right hand to be sworn. do you solemnly swear that all things pertainingg to the trial
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of the them peach made of donald john trump, president of the united states, now pending to do impartial justice according to the constitution of the law so help you god? the secretary rolled out the name of the senator who has just taken the oath and will present the oath to him for signatures. >> the sergeant and arms will make the proclamation. all persons are commanded to keep silent the senator of the united states is sitting with the trial of the articles of impeachment exhibited by the house of representatives
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donald john trump president of the united states. >> the majority is recognize. >> for the information of all senators the trial briefs filedd yesterday have been printed and are now on each senators desk. >> they are now printed for the journal january 16, 2020 the summons issued on january 16, january 16, 2020 the following documents received by the secretary of the senate for printing in the senate journal in the order january 16, 2020 the answer of donald john trump of the president of united states to the articles of impeachment rep purported against him received bype the secretary of
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the senate januar january 182020. the trial brief in the house of the representatives received by the secretary january 182020 the brief received by the secretary of the senate on january 20t enjanuary 20th, 2020, recitation of the house of representatives received by the secretary of the senate jan. and the rebuttal refiled by the house of representatives received by the secretary of the senate january 21, 2020. without objection the documents will be printed in the congressional record. i know the presence in the chamber on counsel for the president of the united states. >> mister chief justice. >> the majority leader is recognize. >> asking privileges for close section agreed to by both
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sides and to be inserted in the record. and with unanimous consent. >> without objection. >> it is debatable by parties for two hours equally divided senator schumer will send an amendment to the desk once it has been reported we will have a brief recess. when we reconvene senator schumer's amendment will be debatedd by the parties for two hours. and then we will table the amendment. i send the resolution to the desk and ask that it be read. >>. >> asking for the resolution for those procedures for the
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articles of impeachment against donald john trump, president ofenre the unid states. and the house of representatives shall file from the secretary of senate with those materials submitted to or produced by the house judiciary committee including transcripts of public hearings and printed by the house of representatives are the house judiciary committee pursuant to the house resolution. the materials in this record would be admitted into evidence subject to any hearsay for any objection all those pursuant to this paragraph are printed and made available to all parties. and 9:00 a.m. on january 22n
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january 22nd, 2020 to file al motion permitted under the rules of impeachment with a motion to subpoena witnesses or documents or any other evidentiary motions responses to any such motion shall be filed no later than 11:00 a.m. wednesday january 22nd, 2020. all materials filed pursuant to this paragraph would be printed and made available to taboth parties. arguments of such motion on wednesday january 22nd, 2020 and each side has determined the number of persons to make the presentation following which the senate shall deliberate under the impeachment rules permit following the disposition no motions are made then the house shall make the presentation in support of the articles of impeachment for a period of time not to exceedorn
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24 hours or up to three session days. those for a period not to exceed 24 hours. each side me determine the presentations. upon the conclusion, senators may question for a period of time not to exceed 16 hours upon the conclusion that shall be four hours of argument equally divided followed by deliberation of the senate under impeachmentnt rules on the question if it is to consider and debate any motion to subpoena witnesses or documentseb. the senate without in her intervening faction if it should be in order to consider by the yays and nays under the impeachment rules following
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that dip is fun --dash disposition of the impeachment rules that if the senate agrees to allow the house of representatives or the president to subpoena witnesses and then they shall decide after supposition who shall testify pursuant to the impeachment rules no testimony shall be admissible in the senate unless the parties have had an opportunity to depose such witnesses. has concluded thepa senate shall vote on each article of impeachment. >> the resolution is arguable by the parties two hours equallyy divided. mister schiffer your proponent or opponent of this motion? mr. cipollone your proponent
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or opponent of thepr motion? then mr. cipollone you go first and you can reserve rebuttal time as you wish >> thank you, mister chief justice. majority leader mcconnell, democratic leader schumer, senators. i'm here as counsel to the president of the united states. our team is here to represent donald trump. we support this resolution. it is a fair way to proceed with this trial. it is modeled on the clinton resolution which had 100 senators supporting at the last time this body had an impeachment.
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it requires the house managers to stand up and make their opening statement and make their case. they have delayed bringing this impeachment to this house for 33 days, 33 days to this body and it is time to start with this trial. it is a fair process. they will have the opportunity to stand up and make their opening statement, they will get 24 hours to do that. and the president's attorneys will have a chance to respond. after that all of you will have 16 hours to ask whatever questions you have of either side. once that is finished and you have that information we will proceed to the question of witnesses in some of the more difficult questions that have come before this body.
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we are in favor of this. we believe once you hear those initial presentations the only conclusion will be that the president has done absolutely nothing wrong. and that these articles of impeachment do not begin to approach the standard required by the constitution they themselves will establish nothing beyond those articles, you look at those articles alone and you will determine that there is absolutely no case. so we respectfully ask you to adopt this resolution so that we may begin with this process. it is long past time to start this proceeding and we are here today to do it and we hope the house managers will agree with us and begin this proceeding today. we reserve the remainder of our time for rebuttal.
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>> mister chief justice, senators, counsel for the president, house managers on behalf of the house of representatives rise in opposition to leader mcconnell's resolution. let me begin by summarizing why. last week we came before you to present the articles of impeachment against the president of the united states for only the third time in our history. those articles charge president donald john trump with abuse of power and instruction of congress. the misconduct set out in those articles is the most serious ever charged against the president. the first article, abuse of power, charges the president with soliciting a foreign power to help him cheat in the next election. moreover, he sought to coerce
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ukraine into helping him cheat by withholding official acts, two official acts. a meeting the new president of ukraine desperately sought with donald trump at the white house, to show the world and the russians in particular that the ukrainian president had a good relationship with his most important patron, the president of the united states. even more perniciously, president trump illegally withheld $400 million in taxpayer-funded military assistance to ukraine, a nation at war with our russian adversary, to compel ukraine to help him cheat in the election. astonishingly the president's trial brief, filed yesterday, contends that even if this conduct is proved, that there's nothing the house or the senate may do about it. it is the president's apparent believe that under article 2 he can do anything he wants no
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matter how corrupt, outfitted in godey legal clothing and yet when the founders wrote the impeachment clause they had precisely this type of misconduct in mind, to abuse the power of his office for personal benefit, that undermines our national security, invites foreign interference in our democratic process, the trifecta of constitutional misconduct justifying impeachment. in article 2, the president discharged with other misconduct that would likewise have alarmed the founders, the full, complete and absolute obstruction of a coequal branch of government, the congress. during the course of his impeachment, this is every bit as destructive of our constitutional order as the misconduct charged in the first article. if the president can obstruct
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the investigation, nullify a power the constitution gives to congress, the ultimate power the constitution gives to prevent presidential misconduct, the president places himself beyond accountability, above the law, cannot be indicted, cannot be impeached, it makes him a monarch, the very evil against which our constitution and the balance of power it carefully laid out was designed to guard against. shortly these the trial of these charges will begin it you will be asked to make several determinations. did the house prove the president abused his power by seeking to coerce a foreign nation to help him cheat in the next election? did he obstructed congress in his own investigation into his misconduct by ordering his agencies and officers to cooperate, refused to cooperate
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in any way, to answer subpoenas for documents and through every other means? we believe the evidence will not be seriously contested, you will have to answer at least one other question. does the commission of these high crimes and misdemeanors require the conviction and removal of the president? we believe that it does and the constitution requires that it be so, or the power of impeachment must be deemed a relic or casualty to partisan times and american people left unprotected against a president who would abuse his power for the very purpose of corrupting the only other method of accountability, our elections themselves. so you will vote to find the president guilty or not guilty, to find his conduct impeachable or not impeachable. i would submit to you that
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these are not the most important decisions you will make. how can that be? how can any decision you will make be more important than guilt or innocence, removing the president or not removing the president? i believe the most important decision in this case is the one you will make today, the question you must answer today, will the president and the american people get a fair trial? will there be a fair trial? i submit that this is an even more important questions and how you vote on guilt or innocence because whether we have a fair trial will determine whether you have a basis to render a fair and impartial verdict. it is foundational. the structure upon which every other decision you make must rest. if you only get to see part of the evidence, if you only allow one side or the other chance to present their case, your
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verdict will be predetermined by the bias in the proceeding. if the defendant is not allowed to introduce evidence of his innocence it is not fair trial, so too for the prosecution. of the house cannot call witnesses or introduce documented evidence it is not a fair trial. it is not really a trial at all. americans all over the country are watching us right now and imagine their own jury duty, imagine the judge walks into the courtroom and says she has been talking to the defendant and that the defendant's request, the judges agreed not to let the const -- prosecution call any witnesses or introduce any documents. the judge and the defendant agreed the prosecutor may only read to the jury the dry transcript of the grand jury proceedings. that is it. as anyone on jury duty in this
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country ever heard a judge describe such a proceeding and call it a fair trial? of course not. that is not a fair trial, it is a mockery of a trial. and the constitution this proceeding, the one we're in right now, is the trial. this is not the appeal from the trial, you're not appellate court judges. one of you is. and unless the trial was going to be different from every other impeachment trial or every other kind of trial for that matter, you must allow the prosecution and defense, the house manager and the president's lawyers to call relevant witnesses. you must subpoena documents the president has blocked but which bear on his guilt or innocence. you must impartially do justice as your oath requires. what does a fair trial look like in the context of impeachment? the short answer is it looks
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like every other trial. first, the resolution should allow house managers to obtain documents that have been withheld. first, not last. because the documents will inform the decision about which witnesses are most important to call and when the witnesses are called the documentary evidence will be available and must be available to question them. any other order makes no sense. the resolutions allow house managers to color witnesses and the president should be allowed to do the same and any rebuttal witnesses and when the evidentiary portion of the trial ends, the parties argue the case. you deliberate and render a verdict. affairs dispute whether a particular witnesses relevant or material to the charges brought under the senate rules, the chief justice would rule on the issue of materiality. why should this trial be different than any other trial?
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short answer is it shouldn't but leader, let's resolution would turn the trial process on its head. 's resolution requires the house to prove its case without witnesses, without documents and only after it is done would such questions be entertained with no guarantee that any witnesses or any documents will be allowed even then. that process makes no sense. so what is the harm of waiting until the end of the trial? of kicking the can down the road on the question of documents and witnesses? besides the fact that it is completely backwards, trial first, then evidence, besides the fact the documents inform the senate on which witnesses and helping their questioning. you will have any evidence the president continues to conceal throughout most or all of the trial. and although the evidence against the president is
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already overwhelming, you may never know the full scope of the president's misconduct or those about him. neither will the american people. the charges here involve the sacrifice of our national security at home and abroad and a threat to the integrity of the next election. if there are additional remedial steps that need to be taken after the president's conviction, the american people must know about it. but if, as the public already jaded by experience has come to suspect, this resolution is merely the first step of an effort at -- orchestrated by the white house to rush the trial, hide the evidence, render a fast verdict, to make the president go away as quickly as possible, to cover up his misdeeds than the american people will be deprived of a fair trial and may never learn how deep the corruption of this administration goes or what other risks to our security and elections remain hidden.
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the harm will also endure for this body. of the senate allows the president to get away with such extensive obstruction it will affect the senate's power of subpoena and oversight just as much as the house. the senate's ability to conduct oversight will be beholden to the desires of this president and future presidents, whether he or she decides they want to cooperate with a senate investigation another impeachment inquiry and trial. our system of checks and balances will be broken. presidents will become accountable to no one. it has been reported that leader mcconnell has artie got the votes to pass this resolution. the text of which we did not see until last night and which has been changed even moments ago. they say leader mcconnell is a very good vote counter.
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nonetheless i hope he is wrong. and not just because i think this process, the process contemplated by this resolution is backwards and design with a result in mind and that the result is not a fair trial, i hope is wrong because whatever senators may have said or pledged or committed has been superseded by an event of constitutional dimension. you have all now sworn an oath, not to each other, not to your legislative leadership, not to the managers or even to the chief justice. you have sworn an oath to do in partial justice. that oath binds you, that oath supersedes all else. many of you in the senate and many of us in the house have made statements about the president's conduct, this trial, or this motion, or
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expectations, none of that matters now. that is all in the past. nothing matters now but the oath to do in partial justice. that oath requires a fair trial, fair to the president and fair to the american people. is that really possible? or as the founders feared, has factionalism or excessive partisanship made that now impossible? one way to find out what a fair trial should look like devoid of partisan consideration is to ask yourselves how would you structure the trial if you didn't know what your party was and didn't know what the party of the president was? would it make sense to have a trial first and then decide on witnesses and evidence later? would that be fair to both sides? i have to think that your answer would be no.
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let me be blunt. very blunt. right now, a great many, perhaps most americans do not believe there will be a fair trial. they don't believe the senate will be in partial. they believe that the result is pre-cooked, the president will be acquitted. not because he is innocent. he is not. but because the senators will vote by party and he has the votes. the votes to prevent the evidence from coming out, the votes to make sure the public never sees it. the american people want a fair trial. they want to believe their system of government is still capable of rising to the occasion. they want to believe we can rise above party and do what is best for the country but a great many americans don't believe that will happen.
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let's prove them wrong. let's prove them wrong. how cute you by convicting the president? no, not by conviction alone. by convicting him if the house proves its case and only if the house proves its case, but by letting the house prove its case, by letting the house call witnesses, by letting the house obtained documents, by letting the house decide how to present its own case, and not deciding it for us. in sum, by agreeing to a fair trial. now let's turn to the precise terms of the resolution, the history of impeachment trials and what fairness and impartiality require. although we have many concerns
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about the resolution i begin with a single biggest flaw. the resolution does not ensure that subpoenas will be issued for additional evidence, that the senate and the american people should happen the president continues to block, to fairly decide the president's guilt or innocence. moreover it guarantees subpoenas will not be issued now when they would be most valuable to the senate, the parties and the american people. according to the resolution the leader has introduced, the senate receives briefs and filings from the parties. next, lengthy presentations from the house and the president. my colleagues, the president's lawyers described this as opening statements but let's not kid ourselves, that is the trial that they contemplate. the opening statements are the trial. they will be most of the trial or all the trial. if the senate votes to be
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private self of witnesses and documents the opening statement will be the end of the trial. the opening sentence and then we will see means let's have the trial and maybe we can sweep this all under the rug. you will hear these lengthy presentations from the house. there will be a question-and-answer period for the senators and then and only then after essentially the trial is over, after the briefs have been filed, after the argument have been made, after the senators exhaust their questions, only then will the senate consider whether to subpoena crucial documents and witness testimony that the president has distantly tried to conceal from this congress and the american people. documents and witness testimony that unlike the clinton trial have not yet been seen or heard. it is true the record compiled by the house is overwhelming, the record already compels the conviction of the president in
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the face of unprecedented resistance, a powerful case, evidence of the president's high crimes and misdemeanors that includes direct evidence and testimony with officials who are unwilling and unwitting in the scheme and saw it for what it was. there is more evidence the president continues to block that would flesh out the full extent of the president's misconduct and those around him. we have seen over the past few weeks new evidence has continued to come to light. as the nonpartisan government accountable he office determined, the military -- withholding military to ukraine was illegal and broke the law. as john bolton has offered to testify in the trial is one of the president's agents, lev parnas, has produced documentary evidence that clarifies mister giuliani's activities on behalf of the president and corroborates ambassador sondland's testimony
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that everybody was in the loop. documents released under the freedom of information act document to be alarms at the demands of the fence when the president illegally withheld military support for ukraine, an ally at war with russia without explanation. the office of management and budget official michael duffy instructed defense department officials on july 20 fifth, 90 minutes after donald trump spoke by phone with president zelinski, they should pause all ukraine military assistance, 90 minutes after that call, duffy added given the sensitive nature of the request i appreciate you keeping that information closely held, those who need to know, to execute the direction and the evidence is more than sufficient to
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convict, there is no rational basis for the senate to deprive itself of all relevant information in making such a hugely consequential judgment. as the president's answer to the summons in his trial brief is clear the president can -- contest the fact in false and misleading ways but the president should not have it both ways. he should not be permitted to claim that the facts uncovered by the house are wrong while also concealing mountains of evidence that they are precisely on those facts. if this party seeks impartial justice, it should ensure subpoenas are issued and issued now, before the senate begins extended proceedings based on a record that every person in this room and every american watching at home knows does not include documents and witness testimony. it should, because the president would not allow it to be so. complying with the subpoenas
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would not impose a burden narrowly tailored and targeted documents and witnesses that the president concealed. the senate deserves to see the documents from the white house. the state department, the office of management and budget, the department of defense, these agencies, at least preserve these documents in response to house subpoenas. in some cases agencies have produced documents in foia lawsuit in heavily redacted form. witnesses with direct knowledge or involvement should be heard, and mick mulvaney, his former national security adviser, john bolton who has publicly offered to testify, senior officials implement in the president's freeze on ukraine's military
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aid have very relevant testimony, why not hear it? robert blair who serves as maldini and senior advisor, michael duffy, senior official at omb and other witnesses with direct knowledge that we reserve the right to call later but these witnesses we hope to begin the trial. last month president trump made clear he supported having senior officials testified declaring he would love to have mike pompeo, mister mulvaney, former secretary parry and many other people testify in the senate trial. >> the senate, i would love to have mike pompeo, mitch, rick perry and many other people testify. >> the senate has an opportunity to take the president up on his offer, to make his senior raise available including mcilvain he, perry and pompeo but the president is
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now changing his tune. the bluster of wanting these witnesses to testify is over. notwithstanding the fact that he has never asserted privilege during the house impeachment proceedings, he threatens to invoke one now in a last-ditch effort to keep the rest of the truth from coming out. the president sent his lawyers to claim these witnesses or others cannot possibly testify because it involves national security, nevermind it was the president's actions withholding military aid from an ally at war the trend our national security in the first place. nevermind the most impeachable, serious offenses always involve national security because they will involve other nations and misconduct based on foreign entanglements was what the framers feared most. the president's absurdist argument amounts but we must endanger national security to protect national security we must make a president's conduct linear security beyond the
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reach of impeachment power if we are to save the presidency. this is dangerous nonsense. as justices of the supreme court have ascored, the constitution is not a suicide pact. s turn from the abstract to the very concrete and let me show you just one example of what the president is hiding in the name of national security. there was a document which the president has refused to turn over in which is top diplomat in ukraine says to two other appointees of the president as i said on the phone i think it is crazy to withhold security assistance for help with a political campaign. the administration refuses to turn over that document and so many more. we only know about its existence, we have only seen its contents because it was turned over by a cooperating witness.
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this is what the president would hide from you and from the american people. in the name of national security he would hide graphic evidence of his dangerous misconduct was the only question is, the question raised by this resolution, will you let him? last year donald trump said article 2 of the constitution will allow him to do anything he wanted. evidently believing article to empower him to denigrate a branch of government he also declared he will fight all subpoenas. with you the president's own words. >> i have article 2, i have the right to do whatever i want as president. >> true to his pledge to obstruct congress, president trump faced in impeachment inquiry in the house of representatives, he ordered the executive branch to defied
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every single request on every single subpoena. he issued this order through his white house counsel on october 8th, the same counsel that stood before you a moment ago to defend the president's misconduct. your friend it again at a rally on october 10th. following president trump's categorical order we never received key documents, communications. it is important to note in refusing to respond congress the president did not make any, any formal claim of privilege ever. instead, mister cipollone's letter stated the president would withhold all evidence from the executive branch and less the house surrendered to demands that would effectively place president trump in charge of the inquiry into his own misconduct was needless to say that was a nonstarter and designed to be so. the president was determined to
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obstruct congress no matter what we did and his conduct since, his attacks on the impeachment inquiry, his attacks on witnesses have affirmed that the president never had any intention to cooperate in the circumstance. why? because the evidence and testimony he conceals would only further prove his guilt. the innocent do not act this way. simply stated, this trial should not reward the president's obstruction by allowing him to control what evidence is seen, when it is seen and what evidence will remain hidden. the documents the president seeks to conceal include white house records, including records about the unlawful withholding of military aid, state department records including text messages, what's apps messages exchanged by the state department and ukrainian officials and notes by career professionals as they saw the
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president's scheme unfolding in real time. omb records demonstrating efforts to fabricate after-the-fact rationale for the president have sorted showing internal objections that the president's orders violated the law. defense department records reflecting bafflement and alarm that the president suspended military aid to a key security partner without explanation. many of the president's aids refused to testify, these include central figures in the impeachment inquiry including white house chief of staff mcilvain he, former national security adviser john bolton and many others with relevant testimony like robert blair and michael duffy. mister blair, who serves as senior advisor to acting chief of staff mulvaney worked with mister duffy, political appointee in the office of management and budget to carry out the president's order to freeze vital military and security assistance to ukraine. the trump administration refused to disclose communications even though we
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know from written testimony, public reporting and freedom of information act laws but they were instrumental in implementing the hold and extending it at the present express direction, even as career officials warned, accurately, that doing so would violate the law. the president has also made the insupportable claim the house should be forced to subpoena in court and allow the president to delay impeachment for years. if we had done so we would have abdicated our constitutional duty to act on the overwhelming facts before us and the evidence the president was seeking to cheat in the next election. we could not engage in a deliberately protracted court process while the president continued to threaten the sanctity of our elections. resorting to the court is inconsistent with a constitution that gives the house the sole power of impeachment.
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if the house were compelled to exhaust all legal remedies before impeaching the president, it would interpose the court's or decision of a single judge between the house and the power to impeach. moreover it would invite the president to prevent his own impeachment by endlessly litigating the matter in court, appealing every judgment, engaging in every motion or device. ..
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>> although even there the house has the sole right to determine its proceedings as long as it makes the full case to the house as it did. but it's quite another when the president is the cause of his own complaint, when the president withholds witnesses and documents and then attempts to rely on his own noncompliance to justify further concealment. president trump made it crystal clear we would never see a single document or a single witness when he declared as we just watched that he would fight all subpoenas. as a matter of history and precedent, it would be wrong to assert that the senate is unable to obtain and review new evidence during a senate trial, regardless of why evidence was not produced in the house. you can and should insist on receiving all the evidence so you can render impartial justice
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and can earn the confidence of the public in the senate's willingness to hold a fair trial. under the constitution, the senate does not just vote on impeachments. it does not just debate them. instead it is commanded by the constitution to try all cases of impeachment. if the founders intended for the house to try the matter and the senate to consider an appeal based on the cold record from the other chamber, they would have said so. but they did not, instead they gave us the power to charge and use the power to try all impeachments. the framers chose their language in a structure for a reason. as alexander hamilton said, the senate is given awful discretion in matters of impeachment. the constitution speaks to senators in their judicial character as a court for the trial of impeachments. it requires them to aim at real
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demonstrations of innocence or guilt and it requires them to do so by holding a trial. the senate is repeatedly subpoenaed and receive new documents, often many of them while adjudicating cases of impeachment. moreover the senate has heard witness testimony in every one of the 15 senate trials, full senate trials in the history of this republic, including those for presidents andrew johnson and bill clinton. indeed, in president andrew johnson's senate impeachment trial, the house managers were permitted to begin presenting documentary evidence to the senate on the very first day of the trial. the house managers initial presentation of documents in president johnson's case carried on for the first two days of trial. immediately after which witnesses were called to appear in the senate. this has been the standard practice in prior impeachment trials. indeed in most trials this body
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has heard from many witnesses ranging from three in president clinton's case to 40 in president johnson's and well over 60 in other impeachments. as these numbers made clear the senate has always heard from key witnesses when trying an impeachment. the notion that only evidence that was taken before the house should be considered is squarely and unequivocally contrary to senate precedent. nothing in law or history supports it. to start, consider leader mcconnell's own description of his work in a prior senate impeachment proceedings. after serving on the senate trial committee in the case of judge clairborne, leader mcconnell described how the senate committee quote labored intensively for more than two months amassing the necessary evidence and testimony. in the same essay leader mcconnell recognized the full body's responsibility for amassing and digesting evidence.
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there was certainly a lot of evidence for the senate to amass and digest in that proceeding, which involved charges against a district court judge, the senate heard testimony from 19 witnesses. and it allowed for over 2,000 pages of documents to be entered into the record, over the course of that trial. at no point did the senate limit evidence to what was before the house. it did the opposite. consistent with unbroken senate practice in every single impeachment trial, every single one. for example, of the 40 witnesses who testified during president johns johnson's senate trial, only three provided testimony to the house during its impeachment inquiry, only three. the remaining 37 witnesses in that presidential impeachment trial testified before the senate. similarly, the senate's full first impeachment trial which involved charges against judge pickering involved testimony from 11 witnesses, all of whom
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were new to the impeachment proceedings and had not testified before the house. there are many other examples of this point including the senate's most recent impeachment trial of judge porteous in 2010. it is one that many of you and some of us know well. it too is consistent with this long-standing practice. there the senate heard testimony from 26 witnesses, 17 of whom had not testified before the house during its impeachment inquiry. thus, there is a definitive tradition of the senate hearing from new witnesses when trying articles of impeachment. there has never been a rule limiting witnesses to those appeared in the house or limiting evidence before the senate, to that which the house itself considered. and that is because as senator johnson explained in 1934, the integrity of senate impeachment trials depend heavily upon the
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witnesses who are called. their appearance on the stand, their mode of giving testimony. there is thus an unbroken history of witness testimony in senate impeachment trials. presidential and judicial, i would argue in the case of a president, it is even more important to hear the witnesses and see the documents. any conceivable doubt on this score and there should be none left is dispelled by the senate's own rules for trials of impeachment. obtaining documents and hearing live witness testimony is so fundamental that the rules of procedure and practice in the senate when sitting on impeachment trials which date back to the 19th century devote more attention to the gathering, handling admission of new evidence than any other single subject. these rules expressly contemplate that the senate will hear evidence and conduct a thorough trial when sitting as a court of impeachment. at every turn they reject the notion that the senate would take the house's evidentiary record, blind itself to
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everything else, and vote to convict or acquit. for example, rule 6 says the senate shall have the power to compel the attendance of witnesses and enforce obedience to its orders. rule 7, authorizes the presiding officer to rule all questions of evidence including but not limited to questions of relevancy, materiality and redundan redundancy. this rule too presumes that the senate trial will have testimony, giving rise to such questions. rule 11 authorizes the full senate to designate a committee of senators to receive evidence and take testimony. at such times and places as the committee may determine. as rule 11 makes clear, the committee's report must be transmitted to the full senate for final adjudication. but nothing here in the rule states shall prevent the senate from sending for any witness and hearing his testimony in open senate or by order of the senate involving the entire trial in the open senate.
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here too the senate's operative impeachment rules expressly contemplate and provide for subpoenaing witnesses and hearing their testimony as part of the senate trial. and the list goes on. these rules plainly contemplate a robust role for the senate in gathering and considering evidence. they reflect centuries of practice of accepting and requiring new evidence in senate trials. this senate should honor that practice today, by rejecting this resolution. what about the clinton trial? what about the clinton trial it will be argued? even if we are departing from every other impeachment trial in history, including the impeachment of president johnson, what about the clinton trial? aren't we following the same
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process as in the clinton trial? the answer is no. first, the process for the clinton trial was worked out by mutual consent, among the parties. that is not true here, where the process is sought to be imposed by one party on the other. second, all of the documents in the clinton trial were turned over prior to the trial. all 90,000 pages of them, so they could be used in the house's case. none of the documents have been turned over by the president in this case, and under leader mcconnell's proposal, none may ever be. they certainly won't be available to you or to us, during most or all of the trial, if we are really going to follow the clinton precedent, the senate must insist on the documents now, before the trial begins. third, the issue in the clinton trial was not one of calling witnesses, but of recalling
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witnesses. all the key witnesses in the clinton trial had testified before the grand jury or been interviewed by the fbi. one of them dozens of times, and their testimony was already known. president clinton himself testified on camera and under oath, before the senate trial. he allowed multiple chiefs of staff and other key officials to testify, again, before the senate trial took place. here none of the witnesses we seek to call, none of them have testified or been interviewed by the house. and as i said, the president cannot complain that we did not call these witnesses before the house, when their unavailability was caused by the president himself. and last, as you will remember, those of you that were here, the testimony in the clinton trial involved decorum issues that are not present here.
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you may rest assured, whatever else the case may be, such issues will not be present here. in some the clinton precedent, if you're serious about it, if we're really serious about modelling this proceeding after the clinton trial, the clinton precedent is one where all the documents had been provided, up front, where all the witnesses had testified, up front, prior to the trial. that is not being replicated by the mcconnell resolution, not in any way, not in any shape, not in any form, far from it. the traditional model followed in president johnson's case and all of the others is really the one that's most appropriate to the circumstances. the senate should address all the documentary issues, and most of the witnesses now, not later. the need to subpoena documents and testimony now is only increased due to the president's
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obstruction for several reasons: first, his obstruction has made him uniquely and personally responsible for the absences of the witnesses before the house, having ordered them not to appear he may not be heard to complain now that they followed his orders and refused to testify. to do otherwise, only reward the president's obstruction and encourages further future presidents to defy lawful process in impeachment investigations. second, if the president wishes to contest the facts, and his answer and trial brief indicates that he will try, he must not continue to deny the senate access to the relevant witnesses and documents that shed light on the very factual matters he wishes to challenge. the senate trial is not analogous to an appeal where the parties must argue the facts on the basis of the record below. there is no record below. there is no below. this is the trial.
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third, the president must not be allowed to mislead the senate by selectively introducing documents while withholding the vast body of documents that may contradict it. this is very important. the president must not be allowed to mislead you by introducing documents selectively and withholding all of the rest. all of the relevant documents should be produced, so there is full disclosure of the truth. otherwise there is a clear risk that the president will continue to hide all evidence harmful to his position, while selectively producing documents without any context or opportunity to examine their creators. and finally, you may infer the president's guilt from his continuing efforts to obstruct production of documents and witnesses. the president has said he wants witnesses like mulvaney and pompeo and others to testify, and that his interactions with
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ukraine have been perfect. counsel has affirmed today that will be the president's defense, his conduct was perfect, perfectly fine to coerce an ally by withholding military aid to help get cheating in the next election. that will be part of the president's defense, not worded in that way albeit. now he has changed course and does not want these witnesses to testify. the inference in any court of law would be that the party's continued obstruction of lawful subpoenas may be construed as evidence of guilt. let me conclude. the facts will come out in the end. the documents which the president is hiding will be released, through the freedom of information act or through other means over time. witnesses will tell their stories in books and film. the truth will come out. the question is, will it come
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out in time? and what answer shall we give if we did not pursue the truth now and let it remain hidden until it was too late to consider on the profound issue of the president's guilt or innocence? there are many overlapping reasons for voting against this resolution, but they all converge on a single idea, fairness. the trial should be fair to the house, which has been wrongly deprived of evidence by a president who wishes to conceal it. it should be fair to the president, who will not benefit from an acquittal or dismissal, if the trial is not viewed as fair, if it is not viewed as impartial. and fair to you, senators, who are tasked with the grave responsibility of determining whether to convict or acquit and should do so with the benefit of
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all of the facts. and fair to the american people who deserve the full truth and who deserve representatives who will seek it on their behalf. and with that, mr. chief justice, i yield back. >> mr. cipollone, mr. sekulow, you have 57 minutes available. >> thank you, mr. chief justice. members of the senate, leader mcconnell, democratic leader schumer. it is also my privilege to represent the president of the united states before this chamber. senator schumer said earlier today that the eyes of the founders are on these proceedings. indeed, that's true. but it is the heart of the constitution that governs these proceedings. and what we just heard from
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senator schiff, courts have no role, privileges don't apply, what happened in the past we should just ignore. in fact, manager schiff just said try to summarize my colleagues' defense of the president. he said not in those words of course which is not the first time mr. schiff has put words into transcripts that did not exist. mr. schiff also talked about a trifecta. i will give you a trifecta. during the proceedings that took place before the judiciary committee, the president was denied the right to cross-examine witnesses. the president was denied the right to access evidence. and the president was denied the right to have counsel present at hearings. that's a trifecta. a trifecta that violates the
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constitution of the united states. mr. schiff did say the courts really don't have a role in this, executive privilege, why would that matter? it matters because it's based on constitution of the united states. one manager said that it is you that are on trial, the senate. also said -- and others did that you are not capable of abiding by your oath. and then we had the invocation of the ghost of the mueller report. i know something about that report. it came up empty, on the issue of collusion with russia. there was no obstruction. in fact, the mueller report, to the contrary what these managers say today, came to the exact opposite conclusions of what they say. let me quote from the house impeachment report, at page 16.
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although president trump has in times invoked the notion of due process, an impeachment trial, an impeachment inquiry is not a criminal trial and should not be confused with it. believe me, what has taken place in this proceedings is not to be confused with due process because due process demands, and the constitution requires that fundamental fairness and due process, hearing a lot about due process, due process is designed to protect the person accused. when the russia investigation failed, it devolved into the ukraine. a quid pro quo, when that didn't prove out, it was then bribery or maybe extortion. somebody said -- one of the members -- members of the house said treason. but instead we get two articles
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of impeachment. two articles of impeachment that have a vague allegation about a non-crime allegation of abuse of power and obstruction of congress. members, managers, right here, before you today, who have said that executive privilege and constitutional privileges have no place in these proceedings, on june 28th, 2012, attorney general eric holder became the first united states attorney general to be held in both civil and criminal contempt. why? because president obama asserted executive privilege. with respect to the holder proceedings, mr. manager schiff wrote the white house assertion of privilege is backed by decades of precedent that has recognized the need for the president and his senior
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advisors to receive candid advice and information from their top aides. indeed, that's correct. not because manager schiff said it but because the constitution requires it. mr. manager nadler said that the effort to hold eric holder, attorney general holder in contempt for refusing to comply with various subpoenas was quote politically motivated and speaker pelosi called the holder matter and i quote more than a little more than a witch hunt. what are we dealing with here? why are we here? are we here because of a phone call? or are we here before this great body because since the president was sworn into office, there was a desire to see him removed.
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i remember in the mueller report, there were discussions about insurance policies. insurance policy didn't work out so well. so then we moved to other investigations. i guess you would call it reinsurance or an umbrella policy. and that didn't work out so well. and here we are today. manager schiff quoted the supreme court, and i would like to make reference to the supreme court as well. it was then justice later to be chief justice who wrote in the majority of the united states versus russell in 1973, these are the words, we may some day be presented with a situation which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction.
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that day is today. that day was a year ago. that day was in july. when special counsel mueller testified. i am not today going to take the time to review, but i will do it later, the pattern and practices of irregularities that have gone on in these investigations from the outset. but to say that the courts have no role, the rush to impeachment, to not wait for a decision from a court on an issue as important as executive privilege, as if executive privilege hasn't been utilized by presidents since our founding. this is not some new concept. we don't waive executive privilege, and there's a reason we keep executive privilege, and we assert it when necessary.
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and that is to protect -- to protect the constitution and the separation of powers. the president's opponents in their rush to impeach have refused to wait for complete judicial review. that was their choice. speaker pelosi clearly expressed her impatience in contempt for judicial proceedings when she said we cannot be at the mercy of the courts. think about that for a moment. we cannot be at the mercy of the courts. so take article iii of the united states constitution and remove it? we're acting as if the courts are an improper venue to determine constitutional issues of this magnitude? that is why we have courts. that is why we have a federal
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judiciary. it was interesting when professor turley testified before the house judiciary committee in front of mr. nadler's committee, he said we have three branches of government, not two, if you impeach a president, if you make a high crime a misdemeanor out of going to courts an abuse of power it is your abuse of power. you know it is more than that, a lot more than that. there's a lot more than abuse of power if you say the courts don't apply. constitutional principles don't apply. let's start with a clean slate as if nothing happened. a lot has happened. as we proceed, in the days ahead, we will lay out our case. we're going to put forward to the american people, but more important for the constitution's sake, what's taking place here, that this idea that we should ignore what has taken place over the last three years is
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outrageous. we believe that what senator mcconnell has put forward provides due process, allows the proceedings to move forward in an orderly fashion. 33 days, 33 days they held on to those impeachment articles, 33 days. it was such a rush of national security to impeach this president before christmas that they then held them for 33 days. to do what? to act as if they negotiate the house of representatives should negotiate the rules of the united states senate. they didn't hide this. this was the expressed purpose. this was the reason they did it. we're prepared to proceed. majority leader, democratic majority leader, we're prepared to proceed. in our view, these proceedings should begin. i yield the rest of my time to my colleague, white house counsel.
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thank you. >> mr. cipollone? >> thank you, mr. chief justice. i just want to make a couple of additional points. it's very difficult to sit there and listen to mr. schiff tell the tale that he just told. let's remember how we all got here. they made false allegations about a telephone call. the president of the united states declassified that telephone call and released it to the public. how's that for transparency? when mr. schiff found out that there was nothing to his allegations, he focused on the second telephone call. he made false -- and his colleagues made false allegations about that second toll phone call -- telephone call that occurred before the one he had demanded. so the president of the united
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states declassified and released that telephone call. still nothing. again, complete transparency in a way that frankly i'm unfamiliar with any precedent of any president of the united states releasing a classified telephone call with a foreign leader. when mr. schiff saw that his allegations were false, and he knew it anyway, what did he do? he went to the house, and he manufactured a fraudulent version of that call. he manufactured a false version of that call. he read it to the american people, and he didn't tell them it was a complete fake. do you want to know about due process? i will tell you about due process. ::
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the president has been given a minimal due process, nothing here. not even republican colleagues were allowed into the skiff. information was selectively leaked out. witnesses were threatened.
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good public servers were told that they would be held in contempt. they were told they were obstructing. what does mr. schiff mean by extracting? he means that unless you do exactly what he says, regardless of your constitutional rights, then you are obstructing. the the president was not allowo call witnesses. by the way, there is still evidence in the skiff that we have been allowed to see. i wonder why. -- haven't been allowed to see. no witnesses. let's think about something else for a second. let's think about something else. they held these articles for 33 days. we hear all this talk about an overwhelming case, an overwhelming case that they're
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not even prepared today to stand up and make an opening argument about. that's because they have no case. frankly, they have no charge. when you look at these articles of impeachment, they are not only ridiculous, that are dangerous to our republic. and why? first of all, the notion that invoking your constitutional rights to protect the executive branch, that's been done by just about every president since george washington, that that is obstruction. that is our patriotic duty, mr. schiff, particularly when confronted with a wholesale trampling of constitutional rights that i'm unfamiliar with in this country. frankly, it's the kind of thing that our state department would criticize if we see it in
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foreign countries. we have never seen anything like it. and mr. schiff said have i got a deal for you. abandon all your constitutional rights. forget about your lawyers and come in and do exactly what i say. no, thank you. no, thank you. then he says he has the temerity to come into the senate and say we have no use for courts. it's outrageous. now let me tell you another story. there's a man named charlie countryman. he is the deputy national security adviser. he is the number two to john bolton. because you have to remember, mr. schiff want you to forget but you have to remember how we got here. they threatened him. they sent him a subpoena. he did what any american should be allowed to do, used to be about to do.
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he was forced to get a lawyer. he was forced to pay for that lawyer. and he went to court. mr. schiff doesn't like courts. he went to court and he said, judge, tell me what to do. i have obligations that frankly rise, what the supreme court has called the apex of executive privilege in the area of national security. and then i have a subpoena from mr. schiff. what do i do? do you know what mr. schiff said? mr. koppelman went to the judge and the house said, never mind, we withdraw the subpoena. we promise not to issue it agai
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again. and then they come here and they ask you to do the work that they refuse to do for themselves. they ask you to travel on executive privilege. now, would the ever suggest that the executive could determine on its own what the speech and debate clause means? of course that. would they ever suggest that the house could invade the discussions that the supreme court has behind closed doors? i hope not. but they come here and ask you to do what they refuse to do for themselves. they had a court date, and they withdrew subpoena. they evaded a decision and they are asking you to become complicit in that evasion of the court. it's ridiculous and we should call it out for what it is.
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obstruction for going to court? it's an act of patriotism to defend the constitutional rights of the president, because if they can do it to the president, they could do to any of you and they could do it to any american citizen, and that's wrong. and laurence tribe who's been advising them, i guess he didn't tell you that in the clinton impeachment he said, it's dangerous to suggest that invoking constitutional rights is impeachable. it's dangerous point and you know what. it is dangerous, mr. schiff. so what are we doing here. we have the house to completely concocted a process that we have never seen before. they lock the present out. oh, and by the way, -- the present out -- will mr. schiff
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give documents? we asked him for documents. we asked him for documents when contrary to his prior statements it turned out that his staff was working with the whistleblower. we set let us see the documents. release them to the public. we're still waiting. so the idea that they would come here and lecture the senate. by the way, i was surprised your that, do you realize you on trial. mr. nadler is putting you on trial. everybody is on trial except for them. it's ridiculous. it's ridiculous. they said in their brief we have overwhelming evidence, and they are afraid to make their case. think about it. think about it. it's common sense. overwhelming evidence to impeach the president of the united
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states, and then they come here on the first day and they say, you know what, we need some more evidence. now let me tell you something. if i showed up in any court in this country and i said, judge, my cases overwhelming but i'm not ready to go yet. i need more evidence before i can make my case. i would get thrown out in two seconds, and that's exactly what should happen here. that's exactly what should happen here. it's too much to listen to almost. the hypocrisy of the whole thing. and what are the stakes? what are the stakes? there's an election in almost nine months, months from now there's going to be an election. senators in this body the last time had very wise words. they echoed the words of our
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founders. a partisan impeachment is like stealing an election. and that's exactly what we have. we have had -- talk about the s worst nightmare. it's a partisan impeachment that they are delivered to your doorstep. in an election year. some of you are upset because you should be in iowa right now. but instead we are here, and they are not ready to go. and it's outrageous. it's outrageous. and the american people won't stand for it, i'll tell you that right now. they are not here to steal one election. they are here to steal two elections. it's buried in the small print of the ridiculous articles of impeachment. they want to remove president trump from the ballot. they won't tell you that. they don't have the guts to say it directly, but that's exactly
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what they are here to do. they are asking the senate to attack one of the most sacred rights we have as americans, the right to choose our president. in an election year. it's never been done before. it shouldn't be done. now, the reason it's never been done is because no one ever thought that it would be a good idea for a country, for our children, for our grandchildren to try to remove a president from a ballot, to deny the american people the right to vote based on a fraudulent investigation conducted in secret with no rights. well, i could go on and on, but my point is very simple. it's long past time that we
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start this so we can into this ridiculous charade and go have an election. thank you very much, mr. chief justice. >> does the present counsel you back the remainder of their time? thank you. the democratic leader is recognized. >> mr. chief justice, i sent an amendment to the desk to subpoena certain documents and records from the white house, and asked that it be read. >> the clerk will read the document.
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>> the senator from new york mrt number 1284. at the appropriate place and the resolving clause insert the following, section notwithstanding any other provision of this resolution pursuant to rules five and six of the rules of procedure and practice in the senate when sitting on impeachment trials, one, the chief justice of the united states through the secretary of the senate shall issue a subpoena to the acting chief of staff of the white house commanding him to produce for the time period from januart all documents, communications and other records within the possession, custody or control of the white house, including the national security council, referring or relating to, all meetings and calls between president trump and the president of ukraine including documents, communications and other records related to the scheduling of, preparation for,
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and follow up from the april 21 and july 25, 2019, telephone calls as well as the president's september 25, 2019, meeting with the president of ukraine in new york. all investigations, inquiries or other probes related to ukraine, including any that relate in any way to, one, former vice president joseph biden, two, hunter biden and in any of his associates, three, the recent holding limited also known as burisma. format, interference for involvement by ukraine and the 2016 united states elections. five, the democratic national committee or, six, crowdstrike. the actual or potential suspension, withholding, delaying, freezing or releasing of united states foreign assistance, military assistance or security assistance of any kind to ukraine, including but not limited to the ukraine
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security assistance initiative, usji, and foreign military financing fmf. all documents, communications, notes and other records created or received acting chief of staff mick mulvaney then national security adviser john bolton, senior advisor to the chief of staff robert blair, and at the white house officials relate to efforts to, one, solicit request, demand induced, persuade or coerce ukraine to conduct or announce investigations, two, offers scheduled council or withhold a white house meeting for ukraine's president, or three, hold and the release military and other security assistance to ukraine. meetings at or involving the white house not relate to ukraine including but not limited to one, president zelensky's inauguration may 20,
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2019 in key of, ukraine, including but not limited to president trump's decision not to attend us vice president pence to leave the delegation directing vice president pence not to attend and subsequent decision about the composition of the delegation of the united states. two, and beating at the white house on or around may 23, 2019, -- a meeting -- involving president trump, special represent for ukraine goucher shins, ambassador kurt volker, then energy secretary rick perry and united states ambassador to the european union gordon sondland. as rose any private meetings or conversation with those individuals before or after the larger meeting. three, meetings at the white house on or about july 10, 2019 involving ukrainian officials andriy yermak and alexander, and
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united states government officials, including but not limited to then national security adviser john bolton, secretary perry, ambassador volker, ambassador sondland, to include at least a meeting and ambassador bolton office and such with meeting in the war room. four, a meeting at the white house on around august 30, 2019, involving president trump, secretary of state mike pompeo, secretary of defense mark esper. five, a planned meeting later canceled and warsaw, poland, on or around september first, 2019 between president trump and president zelensky and subsequently attended by vice president pence. and six, a meeting at the white house on around september 11, 2019 involving president trump, vice president pence and mr. mulvaney concerning the lifting of the holder security assistance for ukraine.
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meetings, telephone calls or conversations related to any occasions in which the national security council officials reported concerns to national security council lawyers, including but not limited to national security council legal advisor john eisenberg regarding matters related to ukraine including but not limited to, one, the decision to delight military assistance to ukraine, two, the july 10, 2019 beating at the white house with ukrainian officials, three, the president's the president's jule president of ukraine, four, a september 12019 meeting between ambassador sondland and a ukrainian official, and five, presidents september 7, 2019 call with ambassador sondland. any internal review or assessment within the white house regarding ukraine matters following the september 9, 2019
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request for documents from the house permanent select committee on intelligence, the house committee on oversight and reform, and the house committee on foreign affairs, including but not limited to documents collected that pertain to the hold on military and other security assistance to ukraine, the scheduling of the white house meeting for the president of ukraine, and any requests or investigations by ukraine. the complaint submitted by a whistleblower within the intelligence community on or around august 12, 2019 to the inspector general of the intelligence community. all meetings or calls including requests for or recordings of meetings or telephone calls scheduling items, calendar entries, white house visitor records and e-mail or text messages using personal or work related devices between or among, one, current or former white house officials or employees including but not
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limited to president trump, and, two, rudy giuliani, ambassador sondland, victoria thomson, and former united states ambassador to ukraine, marie yovanovitch including but not limited decision to in her tour or recall from the united states embassy in key of, and two, the sergeant at arms is authorized to utilize the services of the deputy sergeant at arms or any other employee of the united states senate in serving the subpoena authorized to the democratic leader is recognized. >> mr. chief justice. i send an amendment to the desk to subpoena documents and i ask that it be read. >> the clerk will read the amendment.


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