Congressional RecordPROCEEDINGS AND DEBATES OF THE 116 t CONGRESS, SECOND SESSION

Vol. 166 WASHINGTON, TUESDAY, JANUARY 28, 2020 No. 18

SenateThe Senate met at 1:03 p.m. and was

called to order by the Chief Justice ofthe United States.

TRIAL OF DONALD J. TRUMP,PRESIDENT OF THE UNITEDSTATES

The CHIEF JUSTICE. The Senatewill convene as a Court of Impeach-ment.

The Chaplain will lead us in prayer.PRAYER

The Chaplain, Dr. Barry C. Black, of-fered the following prayer:

Let us pray.0 God, You are our rock of safety.

Protect us in an unsafe world. Guard usfrom those who smile but plan evil intheir hearts. Use our Senators to bringpeace and unity to our world. May theypermit Godliness to make them bold aslions. Give them a clearer vision ofyour desires for our Nation. Remindthem that they borrow their heart-beats from You each day. Provide themwith such humility, hope, and couragethat they will do Your will.

Lord, grant that this impeachmenttrial will make our Nation stronger,wiser, and better.

We pray in Your strong Name. Amen.PLEDGE OF ALLEGIANCE

The Chief Justice led the Pledge ofAllegiance, as follows:

I pledge allegiance to the Flag of theUnited States of America, and to the Repub-lic for which it stands, one nation under God,indivisible, with liberty and justice for all.

THE JOURNAL

The CHIEF JUSTICE. If there is noobjection, the Journal of proceedings ofthe trial is approved to date.

Without objection, it is so ordered.The Sergeant at Arms will make the

proclamation.The Sergeant at Arms, Michael C.

Stenger, made proclamation as follows:Hear ye! Hear ye! Hear ye! All persons are

commanded to keep silence, on pain of im-prisonment, while the Senate of the UnitedStates is sitting for the trial of the articles

of impeachment exhibited by the House ofRepresentatives against Donald John Trump,President of the United States.

The CHIEF JUSTICE. The majorityleader is recognized.

ORDER OF PROCEDURE

Mr. MCCONNELL. Mr. Chief Justice,we expect several hours of sessiontoday, with probably one quick breakin the middle.

The CHIEF JUSTICE. Pursuant tothe provisions of S. Res. 483, the coun-sel for the President have 15 hours and33 minutes remaining to make thepresentation of their case, though itwill not be possible to use the remain-der of that time before the end of theday.

The Senate will now hear you.Mr. Counsel CIPOLLONE. Mr. Chief

Justice, Members of the Senate, just togive you a very quick, brief overview oftoday, we do not intend to use much ofthat time today. Our goal is to be fin-ished by dinnertime and well before.We will have three presentations. Firstwill be Pat Philbin, Deputy WhiteHouse counsel. Then, Jay Sekulow willgive a presentation. We will take abreak, if that is OK with you, Mr.Leader. And then, after that, I will fin-ish with a presentation. That is ourgoal for the day. With that, I will turnit over to Pat Philbin.

Mr. Counsel PHILBIN. Mr. Chief Jus-tice, Members of the Senate, MajorityLeader MCCONNELL, Minority LeaderSCHUMER, I would like to start todayby making a couple of observations re-lated to the abuse of power charge inthe first Article of Impeachment. Iwouldn't presume to elaborate on Pro-fessor Dershowitz' presentation fromyesterday evening, which I thoughtwas complete and compelling, but Iwanted to add a couple of very specificpoints in support of the exposition ofthe Constitution and the impeachmentclause that he set out.

It begins from a focus on the point inthe debate about the impeachmentclause at the Constitutional Conven-

tion where maladministration was of-fered by George Mason as a grounds forimpeachment, and James Madison re-sponded that that was a bad idea, andhe said: "So vague a term will beequivalent to a tenure during thepleasure of the Senate." That evincedthe deep-seated concern that Madisonhad, and it is part of the whole designof our Constitution for ways that canlead to exercises of arbitrary power.

The Constitution was designed to putlimits and checks on all forms of gov-ernment power. Obviously, one of thegreat mechanisms for that is the sepa-ration of powers-the structural sepa-ration of powers in our Constitution.But it also comes from defining andlimiting powers and responsibilitiesand a concern that vague terms, vaguestandards are themselves an oppor-tunity for the expansion of power andthe exercise of arbitrary power. We seethat throughout the Constitution andin the impeachment clause as well.This is why, as Gouverneur Morris ar-gued in discussing the impeachmentclause, that only few offenses-he saidfew offenses-ought to be impeachable,and the cases ought to be enumeratedand defined.

Many terms had been included in ear-lier drafts, when it was narrowed downto treason and bribery, and there was asuggestion to include maladministra-tion, which had been a ground for im-peachment in English practice. TheFramers rejected it because it was toovague; it was too expansive. It wouldallow for arbitrary exercises of power.

We see throughout the Constitution,in terms that relate and fit in with theimpeachment clause, the same con-cern. One is in the definition of "trea-son." The Framers were very con-cerned that the English practice ofhaving a vague concept of treason thatwas malleable and could be changedeven after the fact to define new con-cepts of treason was dangerous. It wasone of the things that they wanted toreject from the English system. So

0 This "bullet" symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

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CONGRESSIONAL RECORD- SENATE January 28, 2020they defined in the Constitution veryspecifically what constituted treasonand how it had to be proved, and thenthat term was incorporated into theimpeachment clause.

Similarly, in the rejection of mal-administration, which had been an im-peachable offense in England, theFramers rejected that because it wasvague. A vague standard, somethingthat is too changeable, that can be re-defined, that can be malleable after thefact, allows for the arbitrary exerciseof power, and that would be dangerousto give that power to the legislature asa power to impeach the executive.

Similarly-and it relates again to theimpeachment clause-one of the great-est dangers from having changeablestandards that existed in the Englishsystem was bills of attainder. Under abill of attainder, the Parliament couldpass a specific law saying that a spe-cific person had done something unlaw-ful-they were being attainted-eventhough it wasn't unlawful before that.

The Framers rejected that entireconcept. In article I, section 9, theyeliminated both bills of attainder andall ex post facto laws for criminal pen-alties at the Federal level, and theyalso included a provision to prohibitStates from using bills of attainder.

In the English system, there was arelationship, to some extent, betweenimpeachment and bills of attainder be-cause both were tools of the Par-liament to get at officials in the gov-ernment. You could impeach them foran established offense or you couldpass a bill of attainder.

It was because the definition of "im-peachment" was being narrowed thatGeorge Mason at the debates sug-gested-he pointed out-that in theEnglish system there is a bill of attain-der. It has been a great, useful tool forthe government, but we are elimi-nating that, and now we are getting anarrow definition of "impeachment,"and we ought to expand it to include"maladministration." Madison said no,and the Framers agreed: We have tohave enumerated and defined offenses-not a vague concept, not somethingthat can be blurry and interpretedafter the fact and that could be used,essentially, to make policy differencesor other differences like that the sub-ject of impeachment.

All of the steps that the Framerstook in the way they approached theimpeachment clause were in terms ofnarrowing, restricting, constraining,and enumerating offenses and not avague and malleable approach, as theyhad been in the English system.

I think the minority views of Repub-lican Members of the House JudiciaryCommittee at the time of the Nixonimpeachment inquiry summed this upand reflected it well because they ex-plained-and I am quoting from the mi-nority views in the report:

The whole tenor of the Framers' discus-sions, the whole purpose of their many care-ful departures from English impeachmentpractice, was in the direction of limits and of

standards. An impeachment power exercisedwithout extrinsic and objective standardswould be tantamount to the use of bills ofattainder and ex post facto laws, which areexpressly forbidden by the Constitution andare contrary to the American spirit of jus-tice.

What we see in the House managers'charges and their definition of abuse ofpower is exactly antithetical to theFramers' approach because their verypremise for their abuse of power chargeis that it is entirely based on subjec-tive motive-not objective standards,not predefined offenses, but the Presi-dent can do something that is perfectlylawful, perfectly within his authority.But if the real reason, as ProfessorDershowitz pointed out-that is thelanguage from their report-the reasonin the President's mind is somethingthat they ferret out and decide iswrong, that becomes impeachable, andthat is not a standard at all. It ends upbeing infinitely malleable.

It is something that I think-a tell-ing factor that reflects how malleableit is and how dangerous it is in theHouse Judiciary's report because afterthey define their concept of abuse ofpower and they say that it involvesyour exercising government power forpersonal interest and not the nationalinterest and it depends on your subjec-tive motives, they realize that is infi-nitely malleable.

There is not really a clear standardthere, and it is violating a fundamentalpremise of the American system of jus-tice that you have to have notice ofwhat is wrong. You have to have noticeof an offense. This is something Pro-fessor Derschowitz pointed out lastnight. There has to be a defined offensein advance. The way they try to re-solve this is to say: Well, in addition toour definition, high crimes and mis-demeanors involve conduct that is rec-ognizably wrong to a reasonable per-son. And that is their kind of add-on todeal with the fact that they have anunconstitutionally vague standard.

They don't have a standard that real-ly defines a specific offense. They don'thave a standard that really defines, incoherent terms that are going to beidentifiable, what the offenses are, sothey just add on. It has to be recogniz-ably wrong.

They say they are doing this to re-solve a tension, they call it, within theConstitution because they point out-and this is quoting from the report-"The structure of the Constitution, in-cluding its prohibition on bills of at-tainder and the ex post facto clause,implies that peaceable offenses shouldnot come as a surprise."

That is exactly what ProfessorDerschowitz pointed out. And every-thing about the terms of the Constitu-tion, speaking of an offense and a con-viction, that crime should be tried byjury except impeachments. They alltalk about impeachment in thosecriminal offense terms.

But the tension here isn't within theConstitution; it is between the Housemanagers' definition, which lacks any

coherent definition of an offense thatwould catch people by surprise and theConstitution. That is the tension thatthey are trying to resolve betweentheir malleable standards that actuallystates no clear offense and the Con-stitution and the principles of justiceembodied in the Constitution that re-quires some clear offense.

I wanted to point that out in relationto the standards for impeachable of-fenses because it is another piece of theconstitutional puzzle that fits in withthe exposition that ProfessorDerschowitz set out. And it also showsan inherent flaw in the House man-agers' theory of abuse of power, regard-less of whether or not one accepts theview that an impeachable offense hasto be a defined crime. There is still theflaw in their definition of abuse ofpower; that it is so malleable, based onpurely subjective standards, that itdoes not provide any recognizable no-tice of an offense. It is so malleablethat it, in effect, recreates the offenseof maladministration that the Framersexpressly rejected, as ProfessorDerschowitz explained.

The second point that I wanted tomake is, how do we tell, under theHouse managers' standard, what the il-licit motive is; when is there illicit mo-tive? How are we supposed to get theproof of what is inside the President'shead because, of course, motive is in-herently difficult to prove when youare talking about, as they concededthey are talking about, perfectly law-ful actions, on their face, within theconstitutional authority of the Presi-dent? They want to make it impeach-able if it is just the wrong idea insidethe President's head. And they explainin the House Judiciary Committee re-port that the way we will tell if thePresident had the wrong motive is wewill compare what he did to what staff-ers in the executive branch said heought to do. They say that the Presi-dent "disregarded United States for-eign policy towards Ukraine" and thathe ignored "official" policy that he hadbeen briefed on and that "he ignored,defied, and confounded every . . .agen-cy within the Executive Branch."

That is not a constitutionally coher-ent statement. The President cannotdefy agencies within the executivebranch. Article II, section 1 of the Con-stitution vests all of the Executivepower in a President of the UnitedStates. He alone is an entire branch ofgovernment. He sets policy for the ex-ecutive branch. He is given vast power.And, of course, within limits set bylaws passed by Congress and withinlimits set by spending priorities-spending laws passed by Congress-he,within those constraints, sets the poli-cies of the government. And in areas offoreign affairs, military affairs, na-tional security-which is what we aredealing with in this case-in foreign af-fairs and head of state communica-tions, he has vast powers.

As Professor Derschowitz explained,for over two centuries, the President

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has been regarded as the sole organ ofthe Nation in foreign affairs. So theidea that we are going to find out whenthe President has a wrong subjectivemotive by comparing what he did tothe recommendations of some inter-agency consensus among staffers isfundamentally anti-constitutional. Itinverts the constitutional structure,and it is also fundamentally anti-democratic because our system is rath-er unique in the amount of power thatit gives to the President.

The Executive here has much morepower than in a parliamentary system,but part of the reason that the Presi-dent can have that power is if he is di-rectly democratically accountable tothe people. There is an election every 4years to ensure that the Presidentstays democratically accountable tothe people. Those staffers in these sup-posed interagencies who have theirmeetings and make recommendationsto the President are not accountable tothe people. There is no democratic le-gitimacy or accountability to their de-cisions or recommendations. And thatis why the President, as head of the ex-ecutive branch, has the authority toactually set policies and make deter-minations, regardless of what his staff-ers may recommend. They are there toprovide information and recommenda-tions, not to set policy.

The idea that we are going to startimpeaching Presidents by deciding thatthey have illicit motives if we canshow they disagree with some inter-agency consensus is fundamentallycontrary to the Constitution and fun-damentally anti-democratic. Thosewere the two observations I wanted toadd to supplement specific points onProfessor Derschowitz' comments fromlast night.

I want to shift gears and respond to acouple of points that the House man-agers have brought up that are reallycompletely extraneous to this pro-ceeding. They involve matters that arenot charged in the Articles of Impeach-ment. They do not relate directly tothe President and his actions, but theyare accusations that were brought upsomewhat recklessly, in any event, andwe can't close without some responseto them. The first has to do with theidea that somehow the White Houseand White House lawyers were involvedin some sort of coverup related to thetranscript of the July 25 call because itwas stored on a highly classified sys-tem.

Let me start with that. The Housemanagers made this accusation ofsomething nefarious going on. Let's seewhat the witnesses actually had to say.LTC Alexander Vindman-rememberLieutenant Colonel Vindman is theperson who was listening in on the calland who raised a concern. He was theonly person who went and raised a con-cern with NSC lawyers that he thoughtthere was something improper, some-thing wrong with the call. Even thoughhe later conceded under cross-examina-tion it was really a policy concern, buthe thought there was something wrong.

And he had to say: "I do not thinkthere was malicious intent or anythingof that nature . . . to cover anythingup."

He is the one who went and talked tothe lawyers. He is the one whose com-plaint spurred the idea that, wait,there might be something that is reallysensitive here. Let's make sure this isnot going to leak. He thought therewas nothing covering it up.

His boss, Senior Director Tim Morri-son, had similar testimony.

(Text of Videotape presentation:)

Mr. CASTOR. So to your knowledge, therewas no malicious intent in moving the tran-script to the compartmented server?

Mr. MORRISON. Correct.

Mr. Counsel PHILBIN. The idea thatthere was some sort of coverup is fur-ther destroyed by the simple fact thateveryone who as part of their job need-ed access to that transcript, still hadaccess to it, including Lieutenant Colo-nel Vindman. The person who raisedthe complaint still had access to thetranscript the entire time.

This is the way Mr. Morrison's testi-mony explained that.

(Text of Videotape presentation:)Mr. CASTOR. And even on the code word

server, you had access to it?Lieutenant Colonel VINDMAN. Yes.Mr. CASTOR. So at no point in time in

your official duties were you denied access tothis information, is that correct?

Lieutenant Colonel VINDMAN. Correct.Mr. CASTOR. And to your knowledge, any-

body on NSC staff that needed access totheir official duties always was able to ac-cess it, correct, people that had a need toknow and a need to access it?

Mr. MORRISON. Once it was moved to thedepartmental system? Yes.

Mr. CASTOR. OK.

Mr. Counsel PHILBIN. Now, Mr. Mor-rison testified that he recommendedrestricting access to the transcript, notbecause he was concerned there wasanything improper or illegal, but hewas concerned about a potential leakand, as he put it, how that "would playout in Washington's polarized environ-ment" and would "affect bipartisansupport our Ukrainian partners arecurrently experiencing in Congress."

He was right to be concerned, poten-tially, about leaks because the Trumpadministration has faced national secu-rity leaks at an alarming rate. Lieu-tenant Colonel Vindman, himself, saidconcerns about leaks seemed justified,and it was not unusual that somethingwould be put in a more restricted cir-culation.

Now, what else is in the record evi-dence? Mr. Morrison explained his un-derstanding of how the transcriptended up on that server.

(Text of Videotape presentation:)Mr. MORRISON. I spoke with the NSC ex-

ecutive secretariat staff, asked them why,and they did their research and they in-formed me that it had been moved to thehigher classification system at the directionof John Eisenberg, whom I then asked why.I mean, if that was the judgment he made,that's not necessarily mine to question, butI didn't understand it. And he essentiallytold me: I gave no such direction. He did his

own inquiry, and he represented back to methat it was his understanding that it waskind of an administrative error, that whenhe also gave direction to restrict access, theexecutive secretariat staff also understoodthat as an apprehension that there wassomething in the content of the Memconthat could not exist on the lower classifica-tion system.

Mr. CASTOR. To the best of your knowl-edge, there was no malicious intent in mov-ing the transcript to the compartmentedserver?

Mr. MORRISON. Correct.

Mr. Counsel PHILBIN. Everyone whoknew something about it and who tes-tified agreed there was no malicious in-tent. The call was still available to ev-eryone who needed it as part of theirjob, and it certainly wasn't covered upor deep-sixed in some way. The Presi-dent declassified it and made it public.So why we are even here talking aboutthese accusations about a coverup,when it is a transcript that was pre-served and made public, is somewhatabsurd.

The other point I would like to turnto-another accusation from the Housemanagers-is that the whistleblowercomplaint was not forwarded to Con-gress. They have said that lawyers atthe Department of Justice, this time,they accused OLC, the Office of LegalCounsel, of providing a bogus opinionfor why the Director of National Intel-ligence did not have to advance thewhistleblower's complaint to Congress.

Manager JEFFRIES said that OLCopined "without any reasonable basisthat the Acting DNI did not have toturn over the complaint to Congress."

The way he portrayed this-now,there is a statute that says if the in-spector general of the intelligencecommunity finds a matter of urgentconcern, it must be forwarded to Con-gress. And Manager JEFFRIES portrayedthis as if the only thing to decide waswere these claims urgent. He said:"What can be more urgent than a sit-ting President trying to cheat in anAmerican election by soliciting foreigninterference?"

Except that is not the only question.The statute doesn't just say, if it is ur-gent, you have to forward it. It talksabout "urgent concern" as a definedterm. If the House managers want tocome and cast accusations that the po-litical and career officials at the Officeof Legal Counsel, which we all know isa very respected office of the Depart-ment of Justice, provides opinions forthe executive branch on what gov-erning law is, they should come backedup with analysis.

So let's look at what the law actu-ally says, and I think we have the slideof that.

"Urgent concern is defined as a seri-ous or flagrant problem, abuse, viola-tion of law relating to the funding, ad-ministration, or operation of an intel-ligence activity within the responsi-bility and authority of the Director ofNational Intelligence involving classi-fied information."

So the Office of Legal Counsel wasconsulted by the General Counsel at

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CONGRESSIONAL RECORD- SENATE January 28, 2020the DNI's office, and they looked atthis definition, and they did an anal-ysis. They determined that the allegedmisconduct was not an urgent concernwithin the meaning of the statute be-cause they were not just talking about"Do we think it is urgent?" "Do wethink it is important?" No. They wereanalyzing the law, and they looked atthe terms of the statute.

"The alleged misconduct is not anurgent concern within the meaning ofthe statute because it does not concernthe funding, administration, or oper-ation of an intelligence activity underthe authority of the DNI."

Remember, what we are talkingabout here is a head-of-state commu-nication between the President of theUnited States and another head ofstate. This isn't some CIA operationoverseas. This isn't the NSA's doingsomething. This isn't any intelligenceactivity going on within the intel-ligence community under the super-vision of the DNI. It is the head of theexecutive branch, in the exercising ofhis constitutional authority, engagingin foreign relations with a foreign headof state.

So, in reaching that conclusion, theOffice of Legal Counsel looked at thestatute, case law, and the legislativehistory. It concluded that this phrase"urgent concern" included matters re-lating to an intelligence activity sub-ject to the DNI's supervision, but it didnot include allegations of wrongdoingarising outside of any intelligence ac-tivity or outside the intelligence com-munity itself.

That makes sense. This statute wasmeant to provide for an ability of theinspector general's of the intelligencecommunity, in overseeing the activi-ties of the intelligence community, toreceive reports about what was goingon at intelligence agencies, those whowere members of the intelligence com-munity, and if there were fraud, waste,abuse-something unlawful-in thoseactivities. It was not meant to createan inspector general of the Presidency,an inspector general of the Oval Office,to purport to determine whether thePresident, in exercising his constitu-tional authorities, had done somethingthat should be reported.

This law is narrow, and it does notcover every alleged violation of law,the OSC explained, or other abuse thatcomes to the attention of a member ofthe intelligence community. Just be-cause you are in the intelligence com-munity and happen to see somethingelse doesn't make this law apply. Thelaw does not make the inspector gen-eral for the intelligence community re-sponsible for investigating and report-ing on allegations that do not involveintelligence activities or the intel-ligence community.

Nonetheless, the President, of course,released the July 25 call transcript, andit was also not the end of the matterthat the whistleblower complaint andthe ICIG's letter were not sent directlyto Congress. As the OLC explained, if

the alleged complaint does not involvean urgent concern but if there is any-thing else there that you want to havechecked out, the appropriate action isto refer the matter to the Departmentof Justice, and that is what the DNI'soffice did.

They sent the ICIG's letter, with thecomplaint, to the Department of Jus-tice, and the Department of Justicelooked at it. This was all made publicsome time ago. The Department of Jus-tice examined the exact allegations ofthe whistleblower's and the exact fram-ing and concern raised by the inspectorgeneral, which had to do with the po-tential of, perhaps, a campaign financelaw violation. The DOJ looked at it-looked at the statutes, analyzed it-and determined there was no violation,and it closed the matter. It announcedthat months ago.

When something gets sent over to theDepartment of Justice to examine, youcan't call that a coverup. Everythinghere was done correctly. The lawyersanalyzed the law. The complaint wassent to the appropriate person for re-view. It was not within the statutethat it required transmission to Con-gress. Everything was handled entirelyproperly.

Again, actually extraneous to thematters before you, there is nothingabout these two points in the Articlesof Impeachment, but it merits a re-sponse when reckless allegations aremade against those at the White Houseand at the Department of Justice.

With that, Mr. Chief Justice, I yieldmy time to Mr. Sekulow.

Mr. Counsel SEKULOW. Thank you,Mr. Chief Justice, Majority LeaderMCCONNELL, Democratic Leader SCHU-MER, House managers, Members of theSenate.

What we are involved in here, as weconclude, is perhaps the most solemnof duties under our constitutionalframework-the trial of the leader ofthe free world and the duly electedPresident of the United States. It isnot a game of leaks and unsourcedmanuscripts. That is politics, unfortu-nately, and Hamilton put impeachmentin the hands of this body-the Senate-precisely and specifically to be abovethat fray. This is the greatest delibera-tive body on Earth.

In our presentation so far, you havenow heard from legal scholars from avariety of schools of thought, from avariety of political backgrounds, butthey do have a common theme with adire warning-danger, danger, danger.To lower the bar of impeachment basedon these Articles of Impeachmentwould impact the functioning of ourconstitutional Republic and the frame-work of that Constitution for genera-tions.

I asked you to put yourselves-inquoting Mr. SCHIFF'S statement thathis father made-in the shoes of some-one else, and I said I would like you toput yourselves in the shoes of thePresident. I think it is important, aswe conclude today, that we are re-minded of that fact.

The President of the United States,before he was the President, was underan investigation. It was called Cross-fire Hurricane. It was an investigation,led by the FBI, the Federal Bureau ofInvestigation. James Comey eventu-ally told the President a little bitabout the investigation and referencedthe Steele dossier. James Comey, thethen-Director of the FBI, said it wassalacious and unverified-so salaciousand unverified that they used it as abasis to obtain FISA warrants. Mem-bers-managers here, managers at thistable right here-said that any discus-sions on the abuse from the Foreign In-telligence Surveillance Act, utilized toget the FISA warrants from the court,were conspiracy theories.

At the very beginning, I asked you toput yourselves in the shoes of not justthis President but of any Presidentwho would have been under this type ofattack. FISA warrants were issued onpeople affiliated with his campaign-American citizens affiliated with thepeople of his campaign, citizens of theUnited States being surveilled pursu-ant to an order that has now been ac-knowledged by the very court thatissued the order that it was based on afraudulent presentation.

In fact, evidence specificallychanged-changed by the very FBI law-yer who was in charge of this, changedto such an extent that the Foreign In-telligence Surveillance Court-as I saidearlier, and I will not repeat it again-issued two orders, saying that whenthis agent-this lawyer-made thesemisrepresentations to the National Se-curity Division, they also made a mis-representation to a Federal court-theFederal court-the Foreign Intel-ligence Surveillance Court. This is acourt where there are no defense wit-nesses and is a court where there is nocross-examination. It is a court basedon trust. That trust was violated.

Then the Director of the Federal Bu-reau of Investigation, James Comey,decides he will leak a memo of a con-versation he had with the President ofthe United States. He is leaking thememo for a purpose, he said-to obtainthe appointment of a special counsel.Lo and behold, a special counsel is ap-pointed. It just so happens that thatFBI agent-lawyer-who committedthe fraud on the FISA Court, became alawyer for the Mueller investigation,only to be removed because of politicalanimus and bias found by the inspectorgeneral.

Then we have a special counsel inves-tigation. Lisa Page, Agent Strzok-Iam not going to go into the details.You know them. They are not in con-troversy. They are uncontroverted. Thefacts are clear. But does it bother yoursense of justice even a little bit-evena little bit-that Bob Mueller allowedthe evidence on the phones of thoseagents to be wiped clean while therewas an investigation going on by theinspector general?

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Now, if you did it, or if you did it,Manager SCHIFF, or if you did it, Man-ager JEFFRIES, or if I did that-de-stroyed evidence-if anyone in thisChamber did this, we would be in seri-ous trouble. Their serious trouble istheir getting fired. Bob Mueller's ex-planation for it is, I don't know whathappened. I don't know what happened.I can't recall conversations.

You can't view this case in a vacuum.You are being asked-and I say thiswith the utmost respect-to remove aduly elected President of the UnitedStates. We have referenced the lawschool exams, and I love that. Ithought there was great analysis yes-terday. I appreciate all of that, but Iwant to focus today on my section, onwhat you are being asked to do. Youare being asked to remove a duly elect-ed President of the United States, andyou are being asked to do it in an elec-tion year-in an election year.

There are some of you in this Cham-ber right now who would rather besomeplace else, and that is why we willbe brief. I understand. You would rath-er be someplace else. Why would yourather be someplace else? Because youare running for President, for the nom-ination of your party. I get it, but thisis a serious, deliberative situation. Youare being asked to remove a duly elect-ed President of the United States. Thatis what the Articles of Impeachmentcall for-removal.

So we had a special counsel, and wegot the report. Just for a moment, put-ting yourselves in the shoes of thisPresident-or of any President whowould be under this situation-you areNo. 4 at the Department of Justice. Hiswife is working for the firm that isdoing the opposition research on himand is communicating with the foreignformer spy, Christopher Steele, whoput together the dossier. It is beinghandled by Christopher Steele, throughNellie Ohr, to her husband-then, thefourth ranking member at the Depart-ment of Justice, Bruce Ohr. All of thisis going on, and he doesn't want to telleverybody-and he has testified tothis-what he is doing because he isafraid he might have to stop.

Might have to stop?How did this happen? This is the Fed-

eral Bureau of Investigation. And thenwe ask why the President is concernedabout advice he is being given?

Put yourself in his shoes. Put your-self in his shoes.

We have given you-and our approachhas been to give-an overview, and tobe very specific, to remove a dulyelected President, which is what youare being asked to do, for essentiallypolicy disagreements-you heard a lotabout policy, although the one that Istill-it still troubles me, this ideathat the President-it was said by sev-eral of the managers-is only doingthese things for himself.

Understanding what is going on inthe world today, as we are here-theyraised it, by the way. I am not tryingto be disrespectful. They raised it: This

President is only doing things for him-self while the leaders of opposing par-ties, by the way, at the highest level,to obtain peace in the Middle East-tosay you are only doing that for your-self? I think the irony is that thosestatements were made while all of thatwas going on and other acts that thisbody has passed, some of them bipar-tisan, to help the American people.

Policy differences-those policy dif-ferences cannot be used to destroy theseparation of powers. House managersspoke for-I know we have had dis-agreements on the time. It was 21hours or 23 hours. They spoke duringtheir time-a lot of time-most of itattacking the President, policy deci-sions. They didn't like what theyheard. They didn't like there was apause on foreign aid.

I have laid out before that there werepauses on all kinds of foreign aid. He isnot the first President to do it.

But the one thing I am still trying tounderstand from the managers' per-spective-and maybe it is not fair toask the managers because you are notthe leader of the House. But rememberthe whole idea that this was a dire na-tional security threat, a danger to ourNation, and we had to get this overhere right away. It had to be done be-fore Christmas. It was so important; itwas so significant; the country was insuch jeopardy; the jeopardy was so se-rious that it had to be done imme-diately.

Let's hold on to the Articles of Im-peachment for a month to see if theHouse could force the Senate to adoptrules that they wanted, which is notthe way the Constitution is set up.

But it was such a dire emergency, itwas so critical for our Nation's na-tional interests, that we could holdthem for 33 days. Danger, danger, dan-ger. That is politics.

As I said, you are being called uponto remove the duly elected President ofthe United States. That is what theseArticles of Impeachment call for.

They never really answered the ques-tion of why they thought there wassuch a national emergency. Maybethey will during questions; I don'tknow. If there was such a nationalemergency, they never did explain whyit was that they waited. They certainlydidn't wait to have the proceedings, asmy colleagues have laid out; I mean,those proceedings moved in recordtime. I suspect that we have been heremore than the House actually consid-ered the actual Articles of Impeach-ment.

Is that the way the Constitution issupposed to work? Is that the design ofthe Constitution?

And then their question, of course,came up yesterday on the whole situa-tion with Burisma and the Bidens andthat whole issue, and my colleaguewent through that a great deal, and Iam not going to do that.

But do we have a-we used to callthis, in free speech cases, like a freespeech zone. You could have your free

speech activities over here; you can'thave them over there. Do you we havelike a Biden-free zone? Was that wasthis was? You mention someone or youare concerned about a company, and itis now off limits? You can impeach thePresident of the United States for ask-ing a question? I think we significantlyshowed the question.

I am not going to go through a de-tail-by-detail analysis of the facts, butthere are some that we just have to gothrough.

You heard a lot of new facts yester-day in our presentation. On Saturday,what we were pointing to was a veryquick overview, and then yesterday wespent the day-and we appreciateeverybody's patience on that-goingthrough the facts: They showed youthis, but they didn't show you that.

The facts are important, though, be-cause facts have legal ramifications;legal ramifications impact the deci-sions you make. So I don't take factslightly, and I certainly don't take theconstitutional mandate lightly, and wecan't.

The facts we demonstrated yesterdayand briefly on Saturday demonstratethat there was, in fact, a proper gov-ernmental interest in the questionsthat the President asked and the issuesthat the President raised on that phonecall.

A phone call-now, let's-again, putyour feet in the shoes of the President.Put yourself in the President's posi-tion. Do you think he thought, when hewas on the call, it was him and Presi-dent Zelensky he was talking to, andthat was it? Or as I heard one commen-tator say it was-people listening in onthe call-the President and 3,000 of hisclosest friends.

Let's be realistic. The President ofthe United States knew, when he wason that call, there were a lot of peoplelistening from our side and from theirside. So he knew what he was saying.He said it. We released a transcript ofit.

The facts on the call that have beenkind of the focus of all of this really fo-cused on foreign policy initiatives bothin Ukraine and around the globe. Theytalked about other countries. ThePresident has been very concernedabout other countries carrying some ofthe financial load here, not just theUnited States. That is a legitimate po-sition for a President to take. If youdisagree with it, you have the right todo that, but he is the President. As mycolleague Deputy White House CounselPhilbin just said, that is the executivebranch prerogative. That is their con-stitutional, appropriate role.

So the call is well documented. Therewere lots of people on the call. The per-son that would be on the other end ofthe quid pro quo, if it existed, wouldhave been President Zelensky. ButPresident Zelensky-and we alreadylaid out the other officials fromUkraine-has repeatedly said there wasno pressure. It was a good call. Theydidn't even know there was a pause in

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CONGRESSIONAL RECORD- SENATE January 28, 2020the aid. All of that is well documented.I am not going to go through each andevery one of those facts. We did thatover the last several days.

President Zelensky's senior adviser,Andriy Yermak, was asked if he everfelt there was a connection betweenmilitary aid and the request for inves-tigations, and he was adamant that"We never had that feeling" and "Wedid not have the feeling that this aidwas connected to any one specificissue." This is coming from the peoplewho were receiving the aid.

So we talk about this whole quid proquo, and that was a big issue. That ishow this-actually, before it became animpeachment proceeding, there was-as the proceedings were beginning inthe House Permanent Select Com-mittee on Intelligence under ChairmanSCHIFF'S role, there were all these dis-cussions: Is it a quid pro quo? Was itextortion? Was it bribery? What was it?

And we are clear in our position thatthere was no quid pro quo. But thenyesterday, my cocounsel, ProfessorAlan Dershowitz, explained last nightthat these articles must be rejected-he was talking about from a constitu-tional framework-even if it was a quidpro quo, which we have clearly estab-lished there was not.

And this is what he said, and I amgoing to quote it verbatim:

The claim that foreign policy decisions canbe deemed abuses of power based on subjec-tive opinions about mixed or sole motivesthat the President was interested only inhelping himself demonstrate the dangers ofemploying the vague, subjective, and politi-cally malleable phrase "abuse of power" as aconstitutionally permissible criteria for theremoval of a President.

He went on to say:Now, it follows from this that if a Presi-

dent-any President-were to have donewhat "The Times" reported about the con-tent of John Bolton's manuscript, that wouldnot constitute an impeachable offense.

I am quoting exactly from ProfessorDershowitz. He said:

Let me repeat it. Nothing in the Boltonrevelations, even if true

Even if true.would rise to the level of abuse of power oran impeachable offense. That is clear fromhistory. That is clear from the language ofthe Constitution. You cannot turn conductthat is not impeachable into impeachableconduct simply by using words like "quidpro quo" and "personal benefit."

It is inconceivable that the Framers wouldhave intended so politically loaded and pro-miscuously deployed a term as "abuse ofpower" to be weaponized

Again, Professor Dershowitz.as a tool of impeachment. It is precisely thekind of vague, open-ended, and subjectiveterm Framers feared and rejected.

Now, to be specific: You cannot im-peach a President on an unsourced alle-gation. But what Professor Dershowitzwas saying is that even if everything inthere is true, it constitutionallydoesn't rise to that level.

But I want to be clear on this be-cause there is a lot of speculation outthere with regard to what John Bolton

has said, which referenced a number ofindividuals. We will start with thePresident. Here is what the Presidentsaid in response to that New YorkTimes piece:

I NEVER told John Bolton that the aid toUkraine was tied to investigations intoDemocrats, including the Bidens. In fact, henever complained about this at the time ofhis very public termination. If John Boltonsaid this, it was only to sell a book.

The Department of Justice.While the Department of Justice has not

reviewed Mr. Bolton's manuscript, the NewYork Times' account of his conversationgrossly mischaracterizes what Attorney Gen-eral Barr and Bolton discussed.

There was no discussion of "personal fa-vors" or "undue influence" on investiga-tions, nor did Attorney General Barr statethat the President's conversations with for-eign leaders were improper.

The Vice President's chief of staffissued a statement:

In every conversation with the Presidentand the Vice President, in preparation forour trip to Poland

Remember, that was the trip thatwas being planned for the meeting withPresident Zelensky.the President consistently expressed hisfrustration that the United States was bear-ing the lion's share of responsibility for aidto Ukraine and that European nationsweren't doing their part.

The President also expressed concernsabout corruption in Ukraine, and at no timedid I hear him tie Ukraine aid to investiga-tions into the Biden family or Burisma.

That was the response responding toan unpublished manuscript that maybesome reporters have an idea of maybewhat it says. I mean, that is what theevidence-if you want to call that evi-dence. I don't know what you call that.I would call it inadmissible, but that iswhat it is.

To argue that the President is notacting in our national interest and isviolating his oath of office, which themanagers have put forward, is wrongbased on the facts and the way theConstitution is designed.

When you look at the fullness of therecord of their witnesses-their wit-nesses-the witnesses' statements, thetranscripts-there is one thing thatemerged: There is no violation of law.There is no violation of the Constitu-tion. There is a disagreement on policydecisions.

Most of those who spoke at yourhearings did not like the President'spolicy. That is why we have elections.That is where policy differentials anddifferences are discussed. But to have aremoval of a duly elected Presidentbased on policy differences is not whatthe Framers intended.

If you lower the bar that way, dan-ger, danger, danger, because the nextPresident or the one after that-he orshe would be held to that same stand-ard. I hope not. I pray that is not whathappens, not just for the sake of myclient but for the Constitution. Pro-fessor Dershowitz gave a list of Presi-dents, from Washington to where weare today, who, under the standard

that they are proposing, could be sub-ject to abuse of power or obstruction ofCongress.

We know that this is not about aPresident pausing aid to Ukraine. It isreally not about the law. It is about alot of attempts on policy disagree-ments that are not being debated here.My goodness, how much time-howmuch time has been spent in the Houseof Representatives hoping? They werehoping that the Mueller probe wouldresult in-I mean, I am not going toplay all the-I was thinking about it,playing all the clips from all the com-mentators the day after Bob Muellertestified. Bob Mueller was unable toanswer, under his examination, basicand fundamental questions. He had tocorrect himself, actually. He had tocorrect himself before the Senate forsomething that he said before theHouse. So that is what the Presidenthas been living with.

And we are today arguing aboutwhat? A phone call to Ukraine orUkraine aid being held or a questionabout corruption or a question aboutcorruption that happened to involve ahigh-profile public figure? Is that whatthis is? Is that where we are?

Then what do we find out? The aidwas released. It was released in an or-derly fashion. The reform President,President Zelensky, wins, but therewas a question on whether his partywould take the Parliament. It did.They worked late into the evening withthe desire to put forward reforms. Soeverybody was waiting, including-andyou heard the testimony from, I willsay, their witnesses-you heard thetestimony-everybody was concernedabout Ukraine. Everybody was con-cerned about whether these reformscould actually take place. Everybodywas concerned about it. So you holdback.

It didn't affect anything that wasgoing on in the field. We heard Mr.CROW worrying about the soldiers. I un-derstand that, I appreciate that, butnone of that aid was affecting what wasgoing on in the battlefield right thenor for the next 4 months because it wasfuture aid. Are we having an impeach-ment proceeding because aid came out3 weeks before the end of the fiscalyear, for a 6-minute phone call? Youboil it down, that is what this is.

It is interesting to me that every-body said: Well, the aid was finally re-leased September 11 only because ofthe committee and the whistleblowerwe have never seen. Mr. Philbin dealtwith that in great detail. I am notgoing to go over that again. But, youknow, the new high court, the anti-cor-ruption court, wasn't established anddid not sit until September 5, 2019. Sowhile the President of Ukraine was try-ing to get reforms put in place, thecourt that was going to decide corrup-tion issues was not set until September5.

I want you to think about this for amoment too. They needed a high courtof corruption for corruption. Think

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about that for a moment. Now, it isgood that they recognized it, but re-member when I said the other day thatyou don't wave a magic wand and nowUkraine doesn't have a corruptionproblem? The high court of corruption,which they have to have because it isnot just past corruption-they are con-cerned about ongoing corruptionissues.

You could put all of your witnessesback under oath in the next hearingsyou will have when this is all over, andyou are going to be back in the Houseand you are going to be doing thisagain, putting them all back underoath, and ask them, Mr. SCHIFF, isthere a problem with corruption inUkraine? If they get up there and say:No. Everything is great now, halle-lujah-but I suspect they are going tosay: We are working really hard on it.But this idea that it has just vanishedand now we are back into "everythingis fine" is absurd.

Mr. Morrison testified that while thedevelopments were taking place, theVice President also met with PresidentZelensky in Warsaw. That was themeeting of September 1-the one, bythe way, where the Vice President's Of-fice said in response to this New YorkTimes article that nobody told himabout aid being held or linked to inves-tigations.

Are you going to stop-are you goingto allow proceedings on impeachmentto go from a New York Times reportabout someone that says what theyhear is in a manuscript? Is that wherewe are? I don't think so. I hope not.

What did Morrison say? You heardfirsthand that the new Ukraine admin-istration was taking concrete steps toaddress corruption. That is good. Headvised the President that the rela-tionship with Zelensky is one thatcould be trusted. Good.

President Zelensky also agreed withVice President PENCE-this is inter-esting-that the Europeans should bedoing more and related to Vice Presi-dent PENCE conversations he had beenhaving with European leaders aboutgetting them to do more.

In sum, the President raised twoissues he was concerned with to getthem addressed.

Now I have already gone over-again,this is just the closing moments here ofour portion of this proceeding. Aid waswithheld or paused, put on a pause but-ton not just for Ukraine but for Af-ghanistan, South Korea, El Salvador,Guatemala, Lebanon, and Pakistan. Iam sure I am leaving countries out.But do you think the American peopleare concerned if the President says:You know, before we give a country, Idon't know, $550 million-some coun-tries, only $400 million-we would liketo know what they are doing with it.You are supposed to be the guardiansof the trust here. It is the taxpayers'money we are spending.

There was a lot of testimony fromDr. Fiona Hill, John Bolton's deputy.Here is what she said about aid that

was being held. This was her testi-mony: There was a freeze put on allkinds of aid and assistance because itwas in the process at the time of anawful lot of reviews of foreign assist-ance.

Oh, you mean there was a policywithin the administration to reviewforeign assistance and how we aredoing it because we spend a lot ofmoney?

By the way, I am not complainingabout the money. I don't think any-body doesn't want to help. But we doneed to know what is going on, andthose are valid and important ques-tions.

Manager CROW told you that thePresident's Ukraine policy was notstrong against Russia, but AmbassadorYovanovitch stated the exact opposite.She said in her deposition that ourcountry's Ukraine policy under Presi-dent Trump actually-her words-"gotstronger" than it was under PresidentObama.

So, again, policy disagreements. Dis-agreements on approach. Have elec-tions. That is what we do in our Repub-lic.

For 3 long days, House managers pre-sented their case by selectively show-ing parts of testimony. Good lawyersshow parts of testimony. You don'thave to show the whole thing. Butother good lawyers show the rest of thetestimony. And that is what we soughtto do to give you a fuller view of whatwe saw as the glaring omissions by mycolleagues, the House managers.

The legal issues here are the con-stitutional ones, and I have been Ithink pretty clear over the last week,starting when we had the motions ar-guments, in my concern about the con-stitutional obligations that we are op-erating under. I have been critical ofManager NADLER'S "executive privilegeand other nonsense."

I want you to look at it this way.Take out executive privilege; FirstAmendment free speech and other non-sense; the free exercise of religion andother nonsense; the right to due proc-ess and other nonsense; the right ofequal protection under the law andother nonsense. You can't start doingthat. You would not do that. No admin-istration has done that, in fact, sincethe first administration, George Wash-ington. They wanted information. Hethought it was privileged. He said itwas executive privilege.

Let's not start calling constitutionalrights "other nonsense" and lumpingthem together. This is from the Houseof Representatives that actually be-lieves the attorney/client privilegedoesn't apply, which should scare everylawyer in Washington, DC, but morescary for their clients. They say thatin writing, in letters. They don't hideit.

I would ask them-I am not going to;it is not my privilege to do that-doyou really believe that? Do you reallybelieve that the attorney/client privi-lege does not apply in a congressional

hearing? Do you really believe that?Because if that is what is believed orimplied, then there is no attorney/cli-ent privilege-or is that the attorney/client privilege and other nonsense?Danger, danger, danger.

We believe that article I fails con-stitutionally. The President has con-stitutional authority to engage in andconduct foreign policy and foreign af-fairs. It is our position legally-thePresident at all times acted with per-fect legal authority, inquired of mat-ters in our national interest, and, hav-ing received assurances of those mat-ters, continued his policy that his ad-ministration put forward of what real-ly is unprecedented support forUkraine, including the delivery of amilitary aid package that was deniedto the Ukrainians by the prior adminis-tration.

Some of the managers right here, mycolleagues at the other table, voted infavor of those-wanted Javelin anti-tank missiles for Ukraine. Some of theMembers here did not, didn't want todo that, voted against that. I am gladwe gave it to them. I am glad we al-lowed them to purchase Javelins.

I never served in the military. I havetremendous, tremendous respect forthe men and women who protect ourfreedom. I have tremendous respect forwhat they are doing and continue todo.

This President actually allowed theJavelins to go. Some of you liked thatidea; some of you did not. Policy dif-ference. Were you going to impeachPresident Obama because he did notgive them lethal aid? No. Nor shouldyou. You should not do that. It is a pol-icy difference. Policy differences do notrise to the level of constitutionallymandated or constitutional applica-tions for removal from office. It is pol-icy differences.

By the way, it is not just on lethalweapons; President Obama, as I said,withheld aid. He had the right to dothat. You have allowed him to do that.

Oh, but we don't like that this Presi-dent did it, so the rules change. So thisPresident's rules are different than-hehas a different set of standards he hasto apply than what you allowed theprevious administrations to apply. Andyou know what-or the future adminis-trations to apply. That is the problemwith these articles.

We have laid out, I believe, a compel-ling case on what the Constitution re-quires. When they were in the House ofRepresentatives putting this together,did they go through a constitutionallymandated accommodation process tosee if there was a way to come up withsomething? No, they did not. Did theyrun to court? No. And the one time itwas about to happen, they ran theother way.

Separation of powers means some-thing. It is not separation of powersand other nonsense. If we have reachednow, at this very moment in the his-tory of our Republic, a bar of impeach-ment because you don't like the Presi-dent's policies or you don't like the

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CONGRESSIONAL RECORD- SENATE January 28, 2020way he undertook those policies-be-cause we heard a lot about policy. Ifpartisan impeachment is now the ruleof the day, which these Members andMembers of this Senate said shouldnever be the rule of the day-my good-ness, they said it-some of them-5months ago, but then we had the na-tional emergency, a phone call. It is anemergency, except we will just wait.

But if partisan impeachment basedon policy disagreements, which is whatthis is, and personal presumptions ornewspaper reports and allegations inan unsourced-maybe this is in some-body's book who is no longer at theWhite House-if that becomes the newnorm, future Presidents, Democratsand Republicans, will be paralyzed themoment they are elected, before theycan even take the oath of office. Thebar for impeachment cannot be set thislow.

Majority Leader MCCONNELL, Demo-cratic Leader SCHUMER, House man-agers, Members of the Senate-danger,danger, danger. These articles must berejected. The Constitution requires it.Justice demands it.

We would ask the majority leader fora short recess, if we can, about 15 min-utes.

The CHIEF JUSTICE. The majorityleader is recognized.

RECESS

Mr. MCCONNELL. Mr. Chief Justice,we will be in recess for 15 minutes.

There being no objection, at 2:18p.m., the Senate, sitting as a Court ofImpeachment, recessed until 2:44 p.m.;whereupon the Senate reassembledwhen called to order by the CHIEF JUS-TICE.

The CHIEF JUSTICE. The Senatewill come to order. Please be seated.

Mr. Cipollone.Mr. Counsel CIPOLLONE. I thank

Mr. Chief Justice and Members of theSenate.

Well, I had kind of a lengthy presen-tation prepared, but I think you haveheard a lot from our side, and I thinkwe have made our case.

I just want to leave you with a cou-ple of points. First of all, I thank themajority leader and thank DemocraticLeader SCHUMER and all of you for theprivilege of speaking on the floor of theSenate and for your time and atten-tion. We really appreciate it.

We made three basic points. One, allyou need in this case is the Constitu-tion and your common sense. If youjust look at the Articles of Impeach-ment, the Articles of Impeachment fallfar short of any constitutional stand-ard, and they are dangerous. If youlook to the words from the past that Ithink are instructive, as I said lastnight, they are instructive becausethey were right then and they are rightnow, and I will leave you with some ofthose words.

(Text of Videotape presentation:)Mr. NADLER. There must never be a nar-

rowly voted impeachment or an impeach-ment supported by one of our major politicalparties and opposed by the other. Such an

impeachment will lack legitimacy, willproduce divisiveness and bitterness in ourpolitics for years to come, and will call intoquestion the very legitimacy of our politicalinstitutions.

Ms. LOFGREN. This is unfair to the Amer-ican people. By these actions you would undothe free election that expressed the will ofthe American people in 1996. In so doing, youwill damage the faith the American peoplehave in this institution and in the Americandemocracy. You will set the dangerous prece-dent that the certainty of Presidentialterms, which has so benefited our wonderfulAmerica, will be replaced by the partisan useof impeachment. Future Presidents will faceelection, then litigation, then impeachment.The power of the President will diminish inthe face of the Congress, a phenomena muchfeared by the Founding Fathers.

Mr. MARKEY. This is a constitutionalamendment that we are debating, not an im-peachment resolution. The Republicans arecrossing out the impeachment standard ofhigh crimes and misdemeanors, and they areinserting the words "any crime or mis-demeanor." We are permitting a constitu-tional coup d'etat which will haunt this bodyand our country forever.

Mr. MENENDEZ. I warn my colleaguesthat you will reap the bitter harvest of theunfair partisan seeds you sow today. Theconstitutional provision for impeachment isa way to protect our government and ourcitizens, not another weapon in the politicalarsenal.

Mr. SCHUMER. I suspect history will showthat we have lowered the bar on impeach-ment so much we have broken the seal onthis extreme penalty so cavalierly that itwill be used as a routine tool to fight polit-ical battles. My fear is that when a Repub-lican wins the White House Democrats willdemand payback.

Mr. Counsel CIPOLLONE. You wereright, but I am sorry to say you werealso prophetic, and I think I couldn'tsay it better myself, so I will not. Youknow what the right answer is in yourheart. You know what the right answeris for our country. You know what theright answer is for the American peo-ple.

What they are asking you to do is tothrow out a successful President on theeve of an election with no basis and inviolation of the Constitution. It woulddangerously change our country andweaken-weaken-forever all of ourdemocratic institutions. You all knowthat is not in the interest of the Amer-ican people. Why not trust the Amer-ican people with this decision? Whytear up their ballots? Why tear upevery ballot across this country? Youcan't do that. You know you can't dothat.

So I ask you to defend our Constitu-tion, to defend fundamental fairness, todefend basic due process rights, butmost importantly-most importantly-to respect and defend the sacred rightof every American to vote and tochoose their President. The election isonly months away. The American peo-ple are entitled to choose their Presi-dent.

Overturning the last election andmassively interfering with the upcom-ing one would cause serious and lastingdamage to the people of the UnitedStates and to our great country. TheSenate cannot allow this to happen. It

is time for this to end, here and now.So we urge the Senate to reject theseArticles of Impeachment for all of thereasons we have given you. You knowthem all. I don't need to repeat them.

They have repeatedly said, over andover again, a quote from BenjaminFranklin: "It is a republic, if you cankeep it." And every time I heard it, Isaid to myself: It is a republic, if theylet us keep it.

I have every confidence-every con-fidence-in your wisdom. You will dothe only thing you can do, what youmust do, what the Constitution com-pels you to do: Reject these Articles ofImpeachment for our country and forthe American people.

It will show that you put the Con-stitution above partisanship. It willshow that we can come together onboth sides of the aisle and end the eraof impeachment for good. You know itshould end. You know it should end. Itwill allow you all to spend all of yourenergy and all of your enormous talentand all of your resources on doing whatthe American people sent you here todo: to work together, to work with thePresident, to solve their problems.

So this should end now, as quickly aspossible. Thank you again for your at-tention. I look forward to answeringyour questions.

With that, that ends our presen-tation. Thank you very much.

The CHIEF JUSTICE. The majorityleader is recognized.

UNANIMOUS CONSENT AGREEMENTMr. MCCONNELL. Mr. Chief Justice,

I have reached an agreement with theDemocratic leader on how to proceedduring the question period. Therefore, Iask unanimous consent that the ques-tion period for Senators start when theSenate reconvenes on Wednesday; fur-ther, that the questions alternate be-tween the majority and minority sidesfor up to 8 hours during that session ofthe Senate; and finally, that on Thurs-day, the Senate resume time for Sen-ators' questions, alternating betweensides for up to 8 hours during that ses-sion of the Senate.

The CHIEF JUSTICE. Is there objec-tion? Without objection, it is so or-dered.

Mr. MCCONNELL. Mr. Chief Justice,we will complete the question periodover the next 2 days. I remind Senatorsthat their questions must be in writingand will be submitted to the Chief Jus-tice. During the question period of theClinton trial, Senators were thoughtfuland brief with their questions, and themanagers and counsel were succinct intheir answers. I hope we can followboth of these examples during thistime.

The CHIEF JUSTICE. During the im-peachment trial of President Clinton,Chief Justice Rehnquist advised "coun-sel on both sides that the Chair will op-erate on a rebuttable presumption thateach question can be fully and fairlyanswered in 5 minutes or less." Thetranscript indicates that the statementwas met with "laughter."

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Nonetheless, managers and counselgenerally limited their responses ac-cordingly. I think the late Chief's timelimit was a good one and would askboth sides to abide by it.

MORNING BUSINESS

NATIONAL SLAVERY AND HUMANTRAFFICKING PREVENTIONMONTH

Mr. GRASSLEY. Mr. President,today, I join my colleagues on an im-portant resolution condemning humantrafficking both at home and aroundthe world.

Congress made human trafficking afederal crime 20 years ago with passageof the Trafficking Victims ProtectionAct. Since then, I have worked withmy colleagues on several pieces of leg-islation to strengthen existing protec-tions and continue putting victimsfirst.

President Trump has also made ad-dressing human trafficking one of histop priorities. He signed my bill, theTrafficking Victims Protection Act of2017 into law, as well as other measuresthat I cosponsored, such as the StopEnabling Sex Traffickers Act, theAbolish Human Trafficking Act andthe Frederick Douglass TraffickingVictims Prevention and Reauthoriza-tion Act. He also proclaimed Januaryas National Slavery and Human Traf-ficking Prevention Month.

IOWA CAUCUSES

Mr. GRASSLEY. Mr. President, thiscoming Monday, the first in the NationIowa caucuses kick off the Presidentialnomination process. The Presidentialpreference part of the caucus is justone part, however. In truth, the Iowacaucuses are an example of grassrootsdemocracy. Iowa voters for each polit-ical party gather in each of the 1681precincts across my State. At theseneighborhood meetings, voters discussissues of local and national importanceand elect party officers and conventiondelegates. The platform planks ap-proved and the officers and delegateselected often have a longer lasting im-pact on the political parties than thePresidential preference votes.

Mr. President, in a week, all politicalfocus will be set on my home State ofIowa for the first in the Nation pre-cinct caucuses. Many pundits ask whyIowa should be awarded this much im-pact in the Presidential nominationprocess? Iowans take this job seriously.They study the candidates' back-grounds and positions on issues andthey thoughtfully listen to the debates.In Iowa, Presidential candidates mustexplain and discuss their positions andanswer tough questions directly to citi-zens instead of relying on advertising.Candidates who have done this success-fully will be rewarded with momentumand excitement that could launch therest of their candidacy.

SUPPORT FOR AMERICAN VICTIMSOF TERRORISM

Mr. LEAHY. Mr. President, this pastDecember, H.R. 1865, the Further Con-solidated Appropriations Act, 2020, wasenacted into law as Public Law 116-94.I want to take a moment to offer someclarity regarding section 903 of divisionJ of the Act, which is a modifiedversion of the Promoting Security andJustice for Victims of Terrorism Act of2019.

I commend the Republican andDemocratic Senators who have dedi-cated their time to pursuing justice forAmerican victims of terrorism. We allwant these victims to have their day incourt and to be appropriately com-pensated. It is also important that wedo so in a manner that does not domore harm than good. That is the bal-ance that was sought in section 903 ona bipartisan basis.

One component of section 903 is aprovision that enables the PalestinianAuthority and the Palestinian Libera-tion Organization, PA and PLO, to con-duct certain activities in the UnitedStates "exclusively for the purpose ofconducting official business" and ac-tivities "ancillary" to those listed inthe provision without consenting topersonal jurisdiction in civil cases. Theprovision was included because Sen-ators of both parties understand that itis in our national interest to permitcertain activities related to the officialrepresentation of the PA and PLO.Having been part of the negotiationthat resulted in this language, I believeit is important that we have a clear un-derstanding of the types of activitiesthat are considered "ancillary" to theconduct of official business.

While the official business of any for-eign mission necessarily includes meet-ings with Members of Congress andtheir staff, representatives of the exec-utive branch, and other public officials,ancillary activities are those whichmay not be essential for the minimalfunctioning of the mission but whichsupport the mission's primary oper-ations. By way of example, I am con-fident that every Member of this bodywould, as I do, consider a public state-ment, the issuance of a press release,or a meeting or public appearance-while not essential-to be ancillary tohis or her primary functions as a U.S.Senator and would reject any attemptto define such activities otherwise.

That is also why, with regard to thePA and PLO, while we may or may notagree with the statements of its rep-resentatives, the law contemplatesthat its representatives may meet withadvocates regarding relevant issues,make public statements, and otherwiseengage in public advocacy and civil so-ciety activities that are ancillary tothe conduct of official business withoutconsenting to personal jurisdiction.Such jurisdiction is provided for else-where in section 903.

The message in this bill is clear: Con-gress is committed to pursuing justicefor American victims of terrorism

while ensuring appropriate standardsregarding the ability of foreign mis-sions to conduct official business in theUnited States. This is a solution thatprotects U.S. national interests, and Ithank the Senators on both sides of theaisle who have worked together to finda way forward on this measure.

THE PHILIPPINES

Mr. LEAHY. Mr. President I want totake a few moments to discuss an issuethat has garnered some attention in re-cent months, which is our relationswith the Government of the Phil-ippines, including President Duterte'scounter-drug strategy and his govern-ment's treatment of those who haveopenly criticized that strategy.

It is important to first recount thelong history of friendship and strategiccooperation between the United Statesand the Philippines. Family and cul-tural ties that extend back many gen-erations bind us together, as do ourshared goals in East Asia and the Pa-cific. Our Armed Forces regularly en-gage in joint exercises to enhance re-gional security. Despite our dif-ferences, relations between our twocountries are strong and based on mu-tual respect.

We should also extend our deepestsympathies to those harmed by the re-cent eruption of the Taal volcano inLuzon. It has displaced tens of thou-sands of families and destroyed thelivelihoods of many. The U.S. Agencyfor International Development andinternational organizations that re-ceive U.S. funding like the World FoodProgramme are responding with hu-manitarian aid to those in need, whichI and others in Congress strongly sup-port.

One of the manifestations of ourlongstanding, close relations with thePhilippines is the assistance we provideannually to promote a wide range of in-terests there, from humanitarian andeconomic assistance to military assist-ance, which in fiscal year 2019 totaledmore than $150 million. However, as isthe case for other recipients of U.S. as-sistance, those funds are not an enti-tlement and they are not a blankcheck. For example, in the Philippinesthey may not be used to support policecounter-drug operations. We condemnthe thousands of extrajudicial execu-tions of suspected drug users and drug-traffickers by police and their collabo-rators. Such a strategy is not con-sistent with due process and the rule oflaw, nor an effective way to combat thetrafficking and abuse of illegal drugsthat every country, including theUnited States, is struggling with. Wedo support treatment programs forFilipinos suffering from drug addic-tion.

We also stand strongly in support offreedom of expression, whether in thePhilippines or anywhere else, includingin our own country, and that, as wellas President Duterte's counter-drugstrategy, is what underlies our current

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very right. The Trump administrationshould apply the law as required in thiscase.

U.S. SENATE SELECT COMMITTEEON ETHICS ANNUAL REPORT

Mr. LANKFORD. Mr. President, I askunanimous consent, for myself aschairman of the Select Committee onEthics and for Senator CHRISTOPHER A.COONS, vice chairman of the com-mittee, that the Annual Report for theSelect Committee on Ethics for cal-endar year 2019 be printed in theRECORD. The Committee issues this re-port today, January 28, 2020, as re-quired by the Honest Leadership andOpen Government Act of 2007.

There being no objection, the mate-rial was ordered to be printed in theRECORD, as follows:

ANNUAL REPORT OF THE SELECT COMMITTEEON ETHICS

116TH CONGRESS, SECOND SESSION

JANUARY 28, 2020

The Honest Leadership and Open Govern-ment Act of 2007 (the Act) calls for the Se-lect Committee on Ethics of the UnitedStates Senate to issue an annual report nolater than January 31st of each year pro-viding information in certain categories de-scribing its activities for the preceding year.Reported below is the information describingthe Committee's activities in 2019 in the cat-egories set forth in the Act:

(1) The number of alleged violations ofSenate rules received from any source, in-cluding the number raised by a Senator orstaff of the Committee: 251. (In addition, 16alleged violations from previous years werecarried into 2019.)

(2) The number of alleged violations thatwere dismissed

(A) For lack of subject matter jurisdictionor in which, even if the allegations in thecomplaint are true, no violation of Senaterules would exist: 135. (This figure includes 4matters from the previous year carried into2019.)

(B) Because they failed to provide suffi-cient facts as to any material violation ofthe Senate rules beyond mere allegation orassertion: 118. (This figure includes 5 mattersfrom previous years carried into 2019.)

(3) The number of alleged violations forwhich the Committee staff conducted a pre-liminary inquiry: 16. (This figure includes 8matters from previous years carried into2019.)

(4) The number of alleged violations forwhich the Committee staff conducted a pre-liminary inquiry that resulted in an adju-dicatory review: 0.

(5) The number of alleged violations forwhich the Committee staff conducted a pre-liminary inquiry and the Committee dis-missed the matter for lack of substantialmerit or because it was inadvertent, tech-nical or otherwise of a de minimis nature: 11.

(6) The number of alleged violations forwhich the Committee staff conducted a pre-liminary inquiry and the Committee issuedprivate or public letters of admonition: 0.

(7) The number of matters resulting in adisciplinary sanction: 0.

(8) Any other information deemed by theCommittee to be appropriate to describe itsactivities in the previous year:

In 2019, the Committee staff conducted 36Member and committee office campaignbriefings (includes 6 remedial training ses-sions); 21 employee code of conduct trainingsessions; 11 public financial disclosure clin-

ics, seminars, and webinars; 19 ethics semi-nars and customized briefings for MemberDC offices, state offices, and Senate commit-tees; 4 private sector ethics briefings; and 3international briefings.

In 2019, the Committee staff handled ap-proximately 10,998 inquiries (via telephoneand email) for ethics advice and guidance.

In 2019, the Committee wrote approxi-mately 784 ethics advisory letters and re-sponses including, but not limited to, 581travel and gifts matters (Senate Rule 35) and133 conflict of interest matters (Senate Rule37).

In 2019, the Committee received 3,586 publicfinancial disclosure and periodic disclosureof financial transactions reports.

TRIAL OF PRESIDENT DONALD J.TRUMP

Mrs. BLACKBURN. Mr. President,the impeachment trial of PresidentTrump has devolved into a parade oflast-minute red herrings meant to dis-tract this body from the issue at hand.The near-hysteria over books, bore-dom, and beef jerky has provided a con-venient vehicle for the House man-agers, who are trying their best to ped-dle outrage as evidence.

We learned nothing new from theHouse managers' presentations, butoutside the Senate Chamber, they havebeen doing their best to convince usthat we are one "bombshell" awayfrom, at last, having all the elementsneeded for a speedy conviction. Theseefforts to keep unfounded allegationsin the limelight have not gone unno-ticed by those who should be com-manding our attention: the Americanpeople.

Outside the beltway, Americans havegrown weary of trials and talkingpoints. They have heard enough, andthey have had enough.

Taking that feedback into consider-ation, I thought it might be helpful tooffer an update on what we could be fo-cusing on instead of this farcical par-tisan grudge match.

Behind the scenes, we are limpingalong as best we can, but our focus isnecessarily distracted from regularbusiness. Before our time was monopo-lized by impeachment, the Senate wasmaking wonderful progress on fillingthe Federal bench with well-qualified,constitutionalist judges.

When we weren't interviewing thosenominees, members of the JudiciaryCommittee spent time hearing testi-mony on privacy, competition, and thecrisis on our southern border.

Before impeachment, Senators serv-ing on the Veterans' Affairs Committeewere hard at work considering a com-prehensive mental health bill thatwould strengthen veteran mentalhealth and suicide prevention pro-grams. My own IMPROVE Act is partof this effort. We were also working onthe IT Reform Act, which would im-prove information technology projectsat the VA, and the Network of SupportAct, which would help VA officialsguide veterans through the emotionalupheaval of transitioning between Ac-tive Duty and civilian life. We were

doing all of this in addition to our con-tinued oversight of the VA MISSIONAct, and check-ins on struggling clin-ics such as the one in Murfreesboro,TN, which just reduced bed space forveterans struggling with opiate addic-tion and thoughts of suicide.

This Thursday, we have an ArmedServices Committee hearing on theU.S.' role in AFRICOM. When I visitedwith our troops in Djibouti and Soma-lia at the end of last year, I saw first-hand the importance of our advisorysupport on the African continent.Drawing down resources or personnelin AFRICOM would harm our positionas we compete with Russia and China-but we won't have much time to dis-cuss this potentially disastrous change.Every day, work grinds to a halt at 1:00p.m., so that we can sit in our seats inthe Senate Chamber and focus on theimpeachment trial.

We could be paying attention to thefull-blown health crisis plaguing ourrural communities. Since 2010, 118 ruralhospitals have shut their doors. Four-teen of those facilities were in myhome State of Tennessee. Betweenthese hospital closures, and high drugprices, there is enough work to be donein the health care sector alone to keepus busy through Christmas.

Mister President, if Tennessee is agood test group for the rest of the Na-tion-and it usually is-I can tell youthat when asked to choose between dis-cussing impeachment politics and realworld problems, the American peopleare much more worried about trade,transportation, and manufacturing,and how evolving policy initiatives willaffect prices at the grocery store.

I would encourage my colleagues toremember the cost of indulging theseproceedings and to listen to their con-stituents back home and not thebreathless coverage that dominates the24 hour news cycle.

H. CON. RES. 83

Mr. MENENDEZ. Mr. President, H.Con. Res. 83 directs the President toterminate the use of U.S. ArmedForces to engage in hostilities againstIran, unless Congress has authorizedthe use of military force against Iranor such use is necessary to defendagainst an imminent armed attack. H.Con. Res. 83 was agreed to in the Houseof Representatives on January 9, 2020and received in the Senate and referredto the Senate Committee on ForeignRelations on January 13, 2020.

The War Powers Resolution, PL 93-148, has special procedures under-scoring the privileged nature of a con-current resolution like H. Con. Res. 83.Section 1546(c) of the War Powers Reso-lution requires that once a privilegedconcurrent resolution such as H. Con.Res. 83 has been passed by the House, itmust be referred to the Senate ForeignRelations Committee, and "shall be re-ported out by such committee togetherwith its recommendations within fif-teen calendar days." Fifteen calendar

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