Trump Defense Lawyer Impeachment Trial Final Arguments January 28 – Philbin, Cipollone, Sekulow - transcription powered by Happy Scribe

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Mr. Chief Justice, members of the Senate, Majority Leader McConnell, Minority Leader Schumer. I'd like to start today by making a couple of observations related to the abuse of power charge in the first article of impeachment, and I wouldn't presume to elaborate on Professor Dershowitz, his presentation from yesterday evening, which I thought was complete and compelling. But I wanted to just add a couple of very specific points in support of the exposition of the Constitute tution and the impeachment clause that he set out.

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And it begins from a focus on the point in the debate about the impeachment clause at the Constitutional Convention, where maladministration was offered by George Mason as a grounds for impeachment.

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And James Madison responded that that was a bad idea. And he said so vague a term will be equivalent to a tenure during the pleasure of the Senate.

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And that evinced a deep seated concern that Madison had in its part of the whole design of our Constitution for ways that can lead to exercise of arbitrary power. The Constitution was designed to put limits and checks on all forms of government power. Obviously, one of the great mechanisms for that is the separation of powers. The structural separation of powers in our Constitution.

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But it also comes from defining and limiting powers and responsibilities and a concern that vague terms, vague standards are themselves an opportunity for the expansion of power and the exercise of arbitrary power. And we see that throughout the Constitution and in the impeachment clause as well.

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And this is why, as Gouverneur Morris argued in discussing the impeachment clause, that only few offenses, he said few offenses ought to be impeachable and the cases ought to be enumerated and defined. And that's why we see in the debate that the Constitution, there was a great many terms had been included in earlier drafts when it was narrowed down to treason and bribery. And there was a suggestion to include maladministration, which had been a ground for impeachment in English practice.

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The framers rejected it because it was too vague, it was too expansive. It would allow for arbitrary exercises of power. And we see throughout the Constitution in terms that relate and fit in with the impeachment clause. The same concern one is in the definition of treason. The framers were very concerned that the English practice of having a vague concept of treason that was malleable and could be changed even after the fact to define new concepts of treason was dangerous. It was one of the things that they wanted to reject from the English system.

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So they defined in the Constitution very specifically what constituted treason and how it had to be proved. And then that term was incorporated into the impeachment clause.

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Similarly, in the rejection of maladministration, which had been an impeachable offense in England, the framers rejected that because it was vague, a vague standard. Something that's too changeable, that can be redefined, can be malleable after the fact, allows for the arbitrary exercise of power. And that would be dangerous to give that power to the legislature as a power to impeach the executive. And similarly, and it relates again to the impeachment clause. One of the greatest dangers from having changeable standards that existed in the English system was bills of attainder.

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Under a bill of attainder, the parliament could pass a specific law saying that a specific person had done something unlawful. They were being tainted, even though it wasn't unlawful before that. And the framers rejected that entire concept. In Article 1, Section 9, they eliminated both bills of attainder and all ex post facto laws for criminal penalties at the federal level. And they also included a provision to prohibit states from using bills of attainder. Now, in the English system, there was a relationship to some extent between impeachment and bills of attainder because both were tools of the parliament to get at officials in the government.

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You could impeach them for an established offense or you could pass of a a bill of attainder. And it was because the definition of impeachment was being narrowed that George Mason at the debate suggested and you pointed out in the English system, there is a bill of attainder. It's been a great useful tool for the government, but we're eliminating that. And now we're getting a narrow definition of impeachment. We ought to expand it to include maladministration. And Madison said no when the framers agreed.

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We have to have enumerated and defined offenses, not a vague. It's not something that can be blurry and interpreted after the fact and it could be used essentially to make policy differences or other differences like that. The subject of impeachment, all of the steps that the framers took in the way they approached the impeachment clause were in terms of narrowing, restricting, constraining, enumerating offenses and not a vague and malleable approach as there had been in the English system.

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And I think the minority views of Republican members of the House Judiciary Committee at the time of the Nixon impeachment inquiry sum this up and reflected it well, because they explained and I'm quoting from the minority views in the report. The whole tenor of the framers discussions. The whole purpose of their many careful departures from English impeachment practice was in the direction of limits and of standards and impeachment power exercised without extrinsic and objective standards would be tantamount to the use of bills of attainder and ex post facto laws which are expressly forbidden by the Constitution and are contrary to the American spirit of justice.

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And what we see in the House managers charges and their definition of abuse of power is exactly antithetical to the framers approach because their very premise for their abuse of power charge is that it is entirely based on subjective motive, not object of standards, not predefined offenses. But the president can do something that is perfectly lawful, perfectly within his authority. But if the real reason, as Professor Dershowitz pointed out, that's the language from their report, the reason in the president's mind is something that they ferret out and decide is wrong, that becomes impeachable.

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And that's exact that's not a standard at all. It ends up being infinitely malleable.

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And it's something that I think a telling factor that reflects how malleable it is and how dangerous it is is in the House Judiciary Committee's report, because after they define their concept of abuse of power and they say that involves you're exercising government power for personal interest and not the national interest. And it depends on your subjective motives. They realize that that's infinitely malleable. There's not really a clear standard there. And it's violating a fundamental premise of the American system of justice that you have to have notice of what is wrong.

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You have to have notice of an offense. And this is something that Professor Dershowitz pointed out last night. There has to be a defined offense in advance. And the way they try to resolve this is to say, well, in addition to our definition, high crimes and misdemeanors involve conduct that is recognizably wrong to a reasonable person. And that's their kind of add on to deal with the fact that they have an unconstitutionally vague standard. They don't have a standard that really defines a specific offense.

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They don't have a standard that really defines in coherent terms that are going to be identifiable what the offenses are.

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So they just add on and it's got to be recognizably wrong. And they say that they're doing this to resolve a tension. They call it within the constitution, because they point out and this is quoting from the report, the structure of the constitution, including its prohibition on bills of attainder and the ex post facto clause, implies that impeachable offenses should not come as a surprise.

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That's exactly what Professor Dershowitz pointed out and everything about the terms of the Constitution. Speaking of an offence and a conviction that it's all crimes should be tried by jury except impeachments, they all talk about impeachment in those criminal offense terms. But the tension here isn't within the Constitution. It's between the house managers definition, which lacks any coherent definition of an offense that would catch people by surprise. And the Constitution. That's the tension that they're trying to resolve between their malleable standard that actually states no clear offense and the constitution and the principles of justice embodied in the constitution that require some clear things.

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So I wanted to point that out in relation to the standards for impeachable offenses, because it's another piece of the constitutional puzzle that fits in with the exposition that Professor Dershowitz set out. And it also shows an inherent flaw in the house managers theory of abuse of power, regardless of whether or not one accepts the view that an impeachable offense has to be a crime, a defined.

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Crime there is still the flaw in their definition of abuse of power that it is so malleable based on purely subjective standards that it does not provide any cognizable notice of an offense. It is so malleable it in effect re-creates the offensive maladministration that the framers expressly rejected.

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As Professor Dershowitz explained, the second point that I wanted to make is that how do we tell?

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Under the house managers standard what an illicit motive is when there's an illicit motive. How are we supposed to get the proof of what's inside the president's head? Because, of course, motive is inherently difficult to prove where you're talking about. As they've conceded, they're talking about perfectly lawful actions on their face within the constitutional authority of the president. But they want to make it impeachable if it's just the wrong idea inside the president's head. And they explain in the House Judiciary Committee report that the way will tell if the president had the wrong motive is we'll compare what he did to what staffers in the executive branch said he ought to do.

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So they say, quote, that the president, quote, disregarded United States foreign policy towards Ukraine, end quote, and that he ignored, quote unquote, official policy that he had been briefed on and that he, quote, ignored, defied and confounded every agency within the executive branch.

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End quote. That is not a constitutionally coherent statement the president cannot defy. Agencies within the executive branch. Article 2, Section 1 of the Constitution vests all of the executive power in a president of the United States. He alone is an entire branch of government. He sets policy for the executive branch. He's given vast power. And of course, within limits set by laws passed by Congress and within limits set by spending priorities and spending laws passed by Congress.

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He, within those constraints, sets the policies of the government and in areas of foreign affairs, military affairs, national security, which is what we're dealing with in this case, foreign affairs, head of state communications. He has vast powers, as Professor Dershowitz explained. For over two centuries, the president has been regarded as the sole organ of the nation in foreign affairs.

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So the idea that we're going to find out when the president had the wrong subj. motives by comparing what he did to the recommendations of some interagency consensus among staffers is fundamentally anti-constitutional.

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It inverts the constitutional structure and it's also fundamentally anti-democratic because our system is rather unique in the amount of power that it gives to the president. The executive here has more, much more power than in a parliamentary system. But part of the reason that the president can have that power is that he is directly, democratically accountable to the people. There is an election every four years to ensure that the president stays democratically accountable to the people.

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But those staffers in these supposed inter agency who have their meetings and make recommendations to the president are not accountable to the people. There is no democratic legitimacy or accountability to their decisions or recommendations. And that is why it is the president as head of the executive branch, who has the authority to actually set policies and make determinations regardless of what the staffers may recommend. They're there to provide information and recommend recommendations, not to set policy. So the idea that we're going to start impeaching presidents by deciding that they have illicit motives.

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If we can show that they disagree with some interagency consensus, it's fundamentally contrary to the Constitution and fundamentally anti-democratic. So those were the two observations I wanted to add to supplement specific points on Professor Dershowitz, his comments from last night. Now I want to shift gears and respond to a couple of points that the House managers have brought up that are really completely extraneous to this proceeding. They involve matters that are not charged in the articles of impeachment. They do not directly relate, direct, relate to excuse me, relate directly to the president or his actions, but they are accusations that were brought.

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Somewhat recklessly in any event, and we can't close without some response to them. And the first has to do with the idea that somehow the White House and White House lawyers were involved in some sort of cover up related to the transcript of the July 25th call because it was stored on a highly classified system.

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So let me start with that.

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The house managers made this accusation there's something nefarious going on. But let's see what the witnesses actually had to say. Lieutenant Count, Colonel Alexander Venkman. And remember, Lieutenant Colonel Venkman is the person who was listening in on the call and who raised a concern. The only person who went and raised a concern with NSC lawyers that he thought he thought there was something improper, something wrong with the call, even though he later conceded under cross-examination, it was really a policy concern.

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But he thought there was something wrong. And he had to say that he did not think he said so. I do not think there was malicious intent or anything of that nature to cover anything up. He's the one who went talk to the lawyers. He's the one whose complaint spurred the idea that, wait, there might be something that's really sensitive here. We should make sure that this is not going to leak. He thought there was nothing covering it up.

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His boss, senior director Tim Morrison, had similar testimony.

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So it's your knowledge there's no malicious intent in moving the transcript to the compartmented server. And the idea that there was some sort of cover up is further destroyed by the simple fact that everyone who is part of their jobs needed access to that transcript, still had access to it, including Lieutenant Colonel Venkman.

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Right. So the person who raises a complaint still has access to the transcript the entire time. And this is the way Mr Morrison's testimony explained that.

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And even on the codeword server, you had access to it. Yes. So at no point time during the course your official duties were you were you denied access to this information? Correct. Correct. And to your knowledge, anybody on the NSC staff that needed access to the transcript for their official duties always was able to access it? Correct. People that had a need to know and a need to access it once it was moved to the compartmented system.

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Yes. Now, as Mr Morrison testified, he'd recommended restricting access to the transcript, not because he had any concern that there was anything improper or illegal, but he was concerned about a potential leak and as he put it, how that quote would play out in Washington's polarized environment and quote and would, quote, affect the bipartisan support our Ukrainian partners currently experience in Congress. And he was right to be concerned potentially about leaks because the Trump administration has fast faced national security leaks at an alarming rate.

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Lieutenant Colonel Venkman himself said that concerns about leaks seem justified and it was not unusual that something would be put in a more restricted, restricted circulation.

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Now, what else is in the record evidence? Mr Morrison explained his understanding of how the transcript ended up on that server.

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I spoke with the NSC executive secretariat staff, ask them why and they did their research and they inform me it had been moved to the higher classification system at the direction of John Aisenberg, whom I then asked why. I mean, that's that was the judgment he made. That's not necessarily mine to question, but I didn't understand it. And he essentially told me I gave no such direction. He did his own inquiry. And he represented back to me that it was his understanding was it was a kind of administrative error that when he also gave direction to restrict access, the executive secretary staff understood that as an apprehension, that there was something in the content of the mamma.com that could not exist on the lower classification system.

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So to test your knowledge, there's no malicious intent in moving the transcript to the compartmented server. Everyone who knew something about it and who testified agreed there was no malicious intent. The call was still available to everyone who needed it. As part of their job. And it certainly wasn't covered up or deep sixed in some way. The president declassified it and made it public. So why we're even here talking about these accusations about a cover up. When is the transcript that was preserved and made public is somewhat absurd.

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Now, the other point I'd like to turn to another accusation from the House managers is that the whistleblower complaint, when the whistleblower complaint was not forwarded to Congress, they've said that lawyers at the Department of Justice this time they accuse, oh, see, the Office of Legal Counsel of providing a bogus opinion for why the director of national intelligence did not have to advance the whistleblowers complaint to Congress.

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And Manager Jeffrey said that, oh, well, CEO Pine's quote, without any reasonable basis, that the acting DNI did not have to turn over the complaint to Congress and quote the way he portrayed this. Now there's a statute that says if the inspector general of the intelligence community finds a matter of urgent concern, it must me it must be forwarded to Congress.

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And Manager Jefferys portrayed this as if the only thing to decide was, were these claims urgent? He said, quote, What could be more urgent than a sitting presidents trying to cheat in an American election by soliciting foreign interference? That's not the only question, the statute doesn't just say if it's urgent, you have to forward it. It talks about urgent concern as a defined term. Now, if the House managers want to come and cast accusations that the political and career officials at the Office of Legal Counsel, which we all know is a very respected office of the Department of Justice, provides opinions for the executive branch on what governing law is, they should come backed up with analysis.

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So let's look at what the law actually says. And I think we have the slide of that urgent concern is defined as a serious or flagrant problem abuse violation of law relating to the funding administration or operation of an intelligence activity within the responsibility and authority of the Director of national intelligence involving classified information.

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So the Office of Legal Counsel was consulted by the general counsel at the DNI office and they looked at this definition and they did an analysis and they determined that the alleged misconduct is not an urgent concern within the meaning of the statute because they're not just talking about do we think it's urgent?

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Do we think it's important?

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No, they're analyzing the law. And they looked at the terms of the statute. The alleged misconduct is not an urgent concern within the meaning of the statute because it does not concern the funding administration or operation of an intelligence activity under the authority of the DNI.

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Remember, what we're talking about here is a head of state communication between the president of the United States and another head of state. This isn't some CIA operation overseas. This isn't the NSA doing something. This isn't any intelligence activity going on within the intelligence community, under the supervision of the DNI. It's the head of the executive branch exercising his constitutional authority, engaging in foreign relations with a foreign head of state. So in reaching that conclusion, the Office of Legal Counsel looked at the statute case law, the legislative history.

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And it concluded that this phrase urgent concern includes matters relating to intelligence activities subject to the DNI supervision. But it does not include allegations of wrongdoing arising outside of any intelligence activity or outside the intelligence community itself. And that makes sense. This statute was meant to provide for an ability of the inspector general of the intelligence community, overseeing the activities of the intelligence community to receive reports about what was going on at intelligence agencies. Those are members of the intelligence community.

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If there was fraud, waste, abuse, something unlawful in those activities, it was not meant to create an inspector general of the presidency and inspector general of the Oval Office. To purport to determine whether the president, in exercising his constitutional authorities, had done something that should be reported. This law is narrow and it does not cover every alleged violation of law. We'll see explained or other abuse that comes to the attention of a member of the intelligence community.

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Just because you're in the intelligence community happened to see something else doesn't make this law apply.

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And the law does not make the inspector general for the intelligence community responsible for investigating and reporting on allegations that do not involve intelligence activities or the intelligence community now.

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Nonetheless, the president, of course, released the July 25th call transcript. And it was also not the end of the matter that the whistleblower complaint and the DNI, the icy i.g.'s letter, were not sent directly to Congress because they will see explained that if the complaint does not involve an urgent concern.

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But if there's anything else there that you want to have checked out, the appropriate action is to refer the matter to the Department of Justice.

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And that's what the d.a.'s office did. They sent the icy i.g.'s letter with the complaint to the Department of Justice and the Department of Justice looked at it. And this was all made public some time ago. The Department of Justice examined the exact allegations of the whistleblower and the exact framing and concern raised by the inspector general, which had to do with a potential of perhaps a campaign finance law violation.

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DOJ looked at it, looked at the statutes, analyzed it and determined there wasn't a violation. And it closed the matter and it announced that months ago. All right. When something gets sent over to the Department of Justice to examine, you can't call that a cover up. Everything here was done correctly. The lawyers analyzed the law. The complaint was sent to the appropriate person for review. It was not within the statute that required transmission to Congress and everything was handled entirely properly.

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So, again, actually extraneous to the matters before you. There's nothing about this. These two points in the articles of impeachment, but it merits a response when reckless allegations are made against those at the White House and at the Department of Justice. And with that, Mr. Chief Justice, all you'll be back. My time to Mr. Sekulow.