with debate on whether or not additional witnesses to testify. we begin with deputy counsel to the president patrick philbin. ready to hear the presentation from counsel for the president. >> mr. chief justice, members of the senate, the house managers have said throughout their presentation and throughout all of the proceedings here again and again that you can't have a trial without witnesses and documents as if it's just that simple. if you have a trial there has to be new witnesses and documents but it's not that simple and that's really something that is a trope being used to disguise the real issues, the real decisions you would be making on this decision about witnesses. because there's a lot more at stake there. and let me unpack that and explain what is really at stake there. the first is this idea of you come to trial you have to go to witnesses, have enough witnesses come in. but that's not true. in every legal system, and in our legal systems in both civil and criminal sides there's a way to decide right up front in some quick way whether there's really a triable issue, whether you really need to go to all the trouble of calling in new witnesses and having more evidence. there's not here. three -insure there's no need for that. because these article of impeachment on their face are defective. we have explained that -- let me start with the second article on the obstruction charge. we explained that charge is really trying to say it's an impeachable offense for the president to defend she their at the separation of powers and that can't bet right. also the case that no witness will say anything that makes any difference to the second article of impeachment. has to do with the validity of the grounds the president asserted the fact he asserted long-standing constitutional prerogatives prerogatives of the he executive branch to resist specific deficiencies in subpoenas issued. no fact witnesses is going to come in say anything that relates to that. not going to make any difference. on the first article of impeachment, that too is defect of 'it face and we have explained. we heardded again today here, that the way they have this subjective theory of impeachment, abuse of power by focusing just on the president's subjective motives. and they said again today here that the way they can show the president did something wrong is he defied the foreign policy of the united states. we talked about that before this their riff that he defy -- theory he defied the agencies went the executive branch. wasn't following the pollsive of the executive branch. that's not a constitutionally coherent statement. the theory of abuse of power they framed in the first article of impeachment would do grave damage to the separation of powers under our constitution. because it would become so malleable, they can pour into it anything they want to find illicit motives for some perfectly per permissible actio. no different than mall administration. the exact frown the framers rejected during the constitutional convention. the constitution defines specific offenses and limits and constrains impeachment power. also the fact that we actually heard from a lot of witnesses. we heard from a lot of witnesses in the proceeding so far. you heard 192 video clips by our count, from 13 different witnesses. there were 17 witnesses deposed in closed hearings in the house and 12 of them testified again in open hearings. you have all of those transcripts. so you can see the witnesses' testimony there. the key portions have been played for you on the screens. and you have over 28,000 pages of documents and transcripts. you've got a lot of evidence already. but there's another principle that they overlook when they say, if you're going to have a trial, has to be witnesses. as if the most ordinary thing is you get to trial and then start subpoenaing new witnesses and documents. that's not true either. and we pointed this out. there's -- in the regular courts, the way things work is you have to do a lot of work preparing a trial, call discovery to find out pout witnesses and depose them and fine out about documents before you get to trial. you can't show up the day of trial and say, we're not ready. we didn't subpoena john bolton, or witness x or witness y and now we want to subpoena that witness. now we want to do discovery and why does that matter here? because here, to show up, not having done the work, and to expect that work to be done in the senate, by this body, has grave consequences for the institutional interest of this body and sets a precedent, an important precedent for two bodies, for the senate and for the house. because what the senate accepts as an impeachment coming from the house determines not just press press depth for the senate and precedent for the house in the fewer as well. if the he procedures used in the house bring this proceeding here to this stage are accepted, if the senate says, yes, we'll start calling new witnesses because you didn't get the job done, and whatever process you used to get here, then that becomes the new normal and that's important in a couple of ways. one of is as we pointed out, the totally unprecedented process that was used in the house that violated all notion of due process. there are press -- precedents going back in the house 150 years showing someone in impeachment has due process rights to be represent bed counsel, to cross-examine witnesses and present evidence. they didn't allow the forgot do that -- didn't allow the president to do that here. this body says that's okay, then that becomes the new normal and they stand up here, the house managers, and say this body would be unfair if this body doesn't call the witnesses. they talk about fairness. where was the fairness na that proceedings in the house? and manager schiff says thing would be arbitrary if you don't do what they say and call the witnesses they want. wasn't it are temporary in the house when way wouldn't allow the president to be represented by counsel, wouldn't allow the president to call witnesses? there was in precedent in a presidential impeachment inquiry to have opening hearings where the president and his counsel were excluded. it also would set a precedent to allow a package of proceedings from the house to come here that the house managers say now we need new witnesses. we haven't done all the work and it's witnesses they didn't even try to get. they didn't spoken john bolton. and they didn't go through the process when other witnesses were subpoenaed, when dr. copperman went to court, they withdue the subpoena. and now to say that, well, fairness demands this body has to do all that work, that sets a new precedent as well and changes -- it would change for all the future -- the relationship between the house and the senate and impeachment inquiries. it would mean that the senate has to become the investigatory body. and the principles they assert, they did a process that wasn't fair. they did a process that was arbitrary, that arbitrarily denied the president rights. the did a process that wouldn't allow witness asks then came here on the first night, remember when we were all here until 2:00. and in very bell lidgeent tumors si you're on trial it would be stretch res to not do what the house managers say. that's not right. when it was their errors when they war arbitrary and didn't provide fairness they can't project this on this bid to try to say that you have to make up for their errors and if you don't, the fault lies here. i the also suggest that it's not going to take a long time, that the only want a few witnesses. of course if things are opened up to witnesses and it is going to be fair, it's not just one side. not just the witnesses they would want. the president would have to be permitted to have witnesses. and with all respect, mr. chief justice, the idea that if a subpoena is sent to a senior adviser to the president and the president determines that he will stand by the principle of immunity that's been asserted by virtually every president since nixon, that will just be revolved by the senate right here, whether or not that privilege exists by the chief justice sit a little presiding officer. that doesn't make sense. that's not the way it works. the senate, even when the chief justice is the presidenting officer here, can't ewan lat'llly decide the privilege of the executive branch. that would have to be involved another way and could involve litigation and could take a lot of time. so the idea that this will all be done quickly if everyone just does want the house managers say, is not realistic. it's not the way the process would actually play out in accord with the constitution. and that has another significant consequence. again, affecting this institution as a precedent going forward. because what it suggests, the new normal created then is, kind of an express pass for prosisely the -- precisely the sort of impeachments that the framers most feared. the framers recognized that impeachments could be done for illegitimate reasons and there could be partisan impeachments. and if this is the new normal, this is the very epitomy of a pardon pardon impeachment. there was bipartisan opposition to it in the house and rushed through with unfair procedures, 78 days total of inquiry. think about that. in nixon there had been investigating committees and there was a special prosecutor, long before the house judiciary committee started is investigation. in clinton, an independent coup for the better part of a year before the house judiciary committee started hearings. everything from start to finish in this case, from september 24th to the articles of impeachment were considered, in the judiciary committee, was done in 78 days. in 78 days, and for 71 of them the president was entirely locked out. so, the new normal would be slap dash get it done quickly unfair procedures in the house, to impeach a president, then bring it to the senate and then all the real work of investigation and stoffer discovery is going to have to take place with the impeachment hanging over the president's head and that's a particular thing the framers were also concerned about. i mentioned this the other day. in federalist number 65, hamilton warned specifically about what he called -- i'm quoting -- the injury to the innocent from the proapparatus nateed determination of the charges which might be brought against them. because he understood if an impeachment charge from he house wasn't resolved quickly, hanging over he president residents head, that would be a problem. and that's why they structured the impeachment process so that the senate could be able to swiftly determine impeachments brought. that's always suggest --ty that's why they're a sim for having thorough investigation, thorough process done in the house. and hamilton explained that delay after the impeachment would afford an opportunity for intrigue and corruption and it would also be, as he put it, a detriment to the state from the prolonged inaction of men whose firm and faithful discussion of their do ity might have exposed them to the percent indication of a designing majoringity in the house of representatives. and that is what happened here . and if you create a system now that makes the new normal a half baked slap dash process in the house, justifies get the impeachment done, and get it over to the senate and then once the president is impeached, and you have the head of the executive branch, the leader of the free world having something like that hanging over his head, then we'll slow everything down and then we'll start doing the investigation and just drag it out. that's all part of what makes this even more political, especially in an election year. it's not the process that they framers had in mind and it's not something the senate should condone in this case. the senate is not their do the investigatory work the house didn't do. where there's been a process that denied all due process, that produced a record that can't be relied upon, the reaction from this body should be to reject the article offed impeachment. not to condone and put it imimprimatur on the way proceedings were handed in house and not to prolong matters further by trying redo work the house failed to do by not seeking evidence and not doing a fair and legitimate process to bring the articles of impeachment here. thank you. >> mr. sekulow. >> chief justice. members of the senate. over seven day period, you did hear evidence. you heard evidence from 13 different witnesses, 192 video claims, and as my colleague, the deputy white house counsel said, over 28,000 pages of documents. you heard item from gordon sondland. the united states ambassador to european union. you heard that testimony. testified in the house proceedings. i did not have an opportunity to cross examine him. if we get witnesses, i have to have that opportunity. william taylor. former acting united states ambassador for ukraine. testified. you heard his testimony. we didn't get the opportunity to cross examine him. he would be called. tim morrison, the former senior director for europe and russia of the national security council. you saw his testimony. they put it up. we didn't get an opportunity, did not have an opportunity to cross examine him. jennifer williams, special adviser on europe and russia for vice president mike pence. you saw her testimony. they put it up. i did not have the opportunity to cross examine her if we call witnesses, we would have to have that opportunity. david holme the political council to the united states embassy in ukraine. saw testimony from him. were not able to cross examine. if he is called we'll call the ambassador and will cross-examine,. >> host: alexander vindman, appeared before the house with didn't have the opportunity to cross cross-examine him fiona hill. she is the former senior director for europe and russia on national security council. she testified for the house. if we have witnesses, we have the opportunity to call her then and cross-examine fiona hill. kurt voelker, they've called him, we did not have the opportunity to cross-examine if wore calling witnesses, he is a witnesses you heard from. we would have. the right to call witnesses and to cross-examine mr. volume kerr. george ten nat the deputy assistant secretary of state for fifth bureau of european and eurasian affairs of you saw his testimony. they called him. i if we we have witnesses we have. the right to call that witness, and to cross-examine deputy assistant secretary kent. the... ... >> these are witnesses against the president. laura cooper, deputy assistant secretary for russia ukraine and eurasia, same thing. david hale. under secretary of state for political affairs. he was called by the house , you saw his testimony we never saw the upper one - - had the opportunity to cross-examine if we have witnesses we have to have the opportunity to do that. there were other witnesses called that you saw their testimony special advisor for ukraine negotiations the deputy associate director for national security programs, christopher anderson special advisor for ukraine negotiation. you heard their testimony referred to, we did not have the opportunity to cross-examine them. so this isn't going to happen if witnesses are called, in one week those are just the witnesses that have been produced by the house managers. you are being called upon to make consequential constitutional decisions. consequential. decisions. for our constitution. we talk about the burden of proof. i have said this before i will say it again, 31 times the manager said they prove their time line - - the case 29 times it was overwhelming. manager nadler, he didn't over one - - only say it was overwhelming in his view with the congressional record he is very clear. he says not only is it stron strong, there is no doubt. that's what he says the one thing the house managers got right is quoting me manager nadler beyond any doubt it is beyond any doubt. of course we think they have not proven their case by any stretch of any proper constitutional analysis. in the clinton investigation they talk about witnesses being called that those three witnesses that testified were before the house committees. what mr. philbin said was correct there is constitutional design they are supposed to investigate. you are to deliberate. what they are asking you to do is now become the investigative agency, the investigative body. if they needed all this additional evidence, which they say they don't need. by the way, not only did they say it in the record, house manager nadler, quote when he was on cnn on the 15th of this month we brought the articles of impeachment because despite the fact we did not hear from any witnesses we could have heard from me heard from enough to prove the case beyond any doubt. the same can be said with representative lofgren we have evidence proving the case for example at the meeting when bolton said it was a drug deal sondland and vindman was there so the idea they haven't had witnesses is a smokescreen. you heard from a lot of witnesses. the problem with the case and with their position is even with all of those witnesses it is not and impeachable offense. i think it is very dangerous if the house runs up, which they did articles of impeachment quickly, so quickly that they are clamoring for evidence despite the fact they put all this evidence forward. the impeachment by christmas was the goal. but now they want you to do the work they failed to do. and as i said time and time again we hear from witnesses mr. schiff not of one - - modified that today a little bit you heard from a lot of witnesses. but if you go down the road of witnesses this is not a one-week process. remember i talked about the way for ukraine you will not have a witness wand that you say you have a week to do this there is no way that would be possible under due process. but due process is supposed to be for the person accused. when they are turning that on its head. they brought the articles before you. they are the ones that rush the case and held it before you could proceed. we talk a lot about the court system and when witnesses and when it got close for the court proceeding they decided they didn't want to have a witness so they actually withdrew the subpoena to move the case out. how many constitutional challenges will we have in this body because they place the burden on you that they would not take them self to put the case forward cracks if we look at our constitutional framework and constitutional structur structure, that's not the way it's supposed to work. now our opposition to this motion is straightforward. we came here ready to try the case on the record that they presented. the record that the managers told us was overwhelming and complete. going through every sentence of the articles of impeachment a few days ago the problem is what it proved is not and impeachable offense. you could have witnesses that prove other things but if there's not a violation of the law doesn't meet the constitutional requirement process or the substantive issues with these allegations to rise to a level for the removal of office for duly elected president of the united states? it doesn't especially so when we are in the election year. i am not going to take the time your time, which is precious to go over each and every allegation. i would stand her for a long time and i would do it but i will not do that. i will just say this. they created the record to not allow them to penalize the country because if they failed to do their job so with that mr. chief justice we yield our time. >> thank you counsel. the house managers have 30 minutes remaining. >> thank you mr. chief justice and senators and want to walk to the arguments that you just heard from presidents council. the first arguments made by mr. philbin, again by saying the house managers assert that you cannot have a trial without witnesses and said it's not that simple. actually, it is. it is pretty simple. every courthouse, every stat state, every county in the country where they have trials in witnesses for coat and you heard mr. philbin said as to why this should be the first trial in which witnesses are not necessary. some things are just as simple as they appear. a trial without witnesses is simply not a trial. you can call it something else. but it's not a trial. known mr. jay sekulow said something interesting, the house investigates and the senate deliberates. he would rewrite our constitution with that argument. because the last time i checked the constitution it says the house has the sole power of impeachment and the senate shall try the impeachment not merely deliberate or think about it or wonder about it i know you are the greatest deliberative body in the world but not even you can deliberate in a trial without witnesses. but jay sekulow would rewrite the constitution your job is not to try the case but merely to deliberate. that is not what the founders had in mind by a long shot. now mr. philbin says none of these witnesses would have relevance of article to conceding they would have from article one. but that's not true either. imagine what you will see when you hear from the witnesses who ran a wimpy or imagine what you will see when you read the documents from omb and what you will see what they have covered up. what you will see is the motive for their complete obstruction of congress. when you see not the redacted e-mails, the blacked out e-mails that they failed to give in the freedom of information act but what is under those reductions you will have proof of motive. when you see those document documents, you will see how salacious the non- assertions of executive privilege are. and you will see in essence what they have covered up. it could not be more relevant to their panoply of legal argumentation to justify to fight subpoena is a cover-up of legal windowdressing these witnesses and documents are critical of both articles. you also heard mr. philbin argue and again this is where we expected we would be at the end of the proceeding, which is essentially they prove their case we pretty much all know what has gone on we all know just what the president did no one disputes that anymore. so what. its version of the dershowitz defense. so what the president can do no wrong if the president believes that corrupt conduct would help him get reelected or shaking down an ally to withhold military aid or soliciting foreign interference ukrainians or russians or israeli in prime minister or anyone else, so wha what. he has a god-given right to abuse his power and there's nothing you can do about it. it's the dershowitz principle of constitutional lawlessness. that is the end all argument for them. for those witnesses approved the president's misconduct he can be corrupt and he chooses under our constitution. and there's nothing you can do about it. god help us if that argument succeeds. now, they say these witnesses already testified so you don't need to hear from anybody. so the house doesn't get to call witnesses in the senate that would be like a criminal trial in any courthouse in america where the defendant is rich and powerful enough can say to the judge the prosecution got to have witnesses of the grand jury they don't get to call anyone they had their chance with the grand jury to call witnesses in the grand jury they don't get to call witnesses here. that's not how it works in any courtroom in america and it's not how it should work in this courtroom. of course you heard the argument repeated time and time again the house says they are not ready for trial. we never said we weren't ready for trial. we came here very prepared for trial. i would submit to you the president's team came unprepared for trial and prepared for the fact as we all anticipated a daily drip of new disclosures sending them back on their heel heels. they came here to try a case and yes we have not a reasonable expectation to try that case with every courtroom in america that we could call witnesses that's not a lack of preparation but common sense they didn't even try to get bolton. of course we did and what he said is if you subpoena me i will sue you. i will sue you. he said basically what mcghan told us nine months ago i will sue you. good luck with that. now that public argument made by counsel was he and doctor cooperman out of due diligence just want the court to opine it's okay for them to come forward and testify as soon as the court blesses their testimony they are willing to come in they just want to court opinion to say they can do it. and so of course we said to them, that is your real motiv motive, there is a court about to rule on this very issue of absolute immunity. and very shortly there after that court did. that was the court judge jackson in the mcghan case and the judge said the argument about absolute immunity which yes, presidents have always dreamed about and asserted would never succeed in any court in the land it ripped a hole in the case of t7 and also don mcghan and they said n no. 250 years of jurisprudence not a single case to support that proposition the president can simply say that my advisors are immune from process and of course in every other non- impeachment context of a congress' power to enforce subpoena against witnesses or documents the courts have said the power to compel is coequal with the power to legislate. because you can't do one without the other for good if we can't find out if the president is breaking the law violating the act or withholding aid appropriate from an ally how can we legislate to make sure this never happens again cracks we can't. if we can get the answers we can't legislate. there is the proposition indicated by every core in the land in the context of impeachment but it's never been more important. i don't know why after saying he would sue us, and we had to expect that we are still in court nine months later, i don't know why he has changed his mind but i suspect for the reason that if the trial goes forward and he keeps this to himsel himself, and be very difficult to explain to the country why he explained it for the book when he new information of direct relevance and consequence to a decision for the president of the united states should be removed it would be difficult to explain why that was saved for a book but i would submit to you it's difficult for you to explain as it would be for him. but you can ask him that question. why he willing to testify before the senate and not the house cracks and you should. has the character you should have fought harder to overcome our obstruction. the house should have fought harder to overcome our stonewalling. shame on the house for not fighting harder to overcome the stonewalling if they only fought harder maybe they could have gotten the witnesses earlier. that's a really hard argument to make you should have tried harder and what is necessary to overcome our stonewalling and the reason that's in such bad faith as i pointed out to you yesterday while they are in this body arguing the house was derelict a chef fought harder to overcome the stonewalling while they make that argument to the house should be up and down the court's and back again they are in the house arguing the opposite they are in the courthouse saying judge they try to force a subpoena on don mcghan throw it out they don't have the jurisdiction you cannot hear this case. that is a really hard argument to make. i credit them for making it with a straight face. but that is the character of it. you should have fought harder to overcome our stonewalling. now, they also say that chief justice cannot decide issues of privilege. of the chief justice cannot make those decisions then to go up and down the court system that's the argument because these rules allow the presiding officer to make judgments to rule on issues of evidence and materiality and privilege that is permitted under your own rules we don't need to go up and down the courts to get a perfectly good judge right here. you heard our proposal yesterday that it will take a week, just a week for the witnesses that we feel are relevant in that they feel are relevant and that the justice rules are relevant. just one week. now they can say the constitution requires them to go to court but of course it does not. there is absolutely no constitution impediment to say that is reasonable. we will allow a neutral party from the united states of america to rule on whether a witnesses material or immaterial called for purposes of probative evidence or harassment and whether making a claim of privilege or trying to hide thought. the concern that they have is not that the chief justice but rather that he would be fair. but do not make any mistake about it. do not suggest there is something impermissible or to violate the presidents rights to allow the chief justice of the united states to make those decisions in this court because he has been empowered to do so by your rules. and by the constitution which gives you sole power to try impeachments. this whole exercise of your power, you can say we allow the chief justice to make those decisions. mr. jay sekulow said you heard the testimony of 13 witnesses. and the impression is meant to be given that maybe the people watching at home that they must have been in between errands for the senate trial and missed where those witnesses came before the senate to testify. there wasn't any live testimony before this body and i don't recall in that super secret basement bunker. i'll admit there was 100 members eligible maybe i missed one of you but i don't thank you were there for the live testimony in the house and then to cross-examine the witnesses in the house but that's not true either. and to call witnesses in his defense and chose not to do so. and talk about how the military aid was conditioned and then i would like to cross-examine the west point grad i don't believe that. or they could've called nick mulvaney and put him under oath and now predict what john bolton would say that we did not do that. so get it over with in the house. and where he gets to get witnesses which they have known all along that is deeply incriminating this president so instead they are falling back on the argument going down the road to have a real trial the president's lawyers are going to make you pay. and we will call every witness under the sun to testify before the house and we will keep you here until kingdom come. when jay sekulow says we'll bring in fiona hill and morrison in this person. you have the sole power to try this case in two views this process. we gave each side 24 hours to make their arguments we will give each side a shared week to call their witnesses. if you didn't you can of constricted the amount of time and likewise determine how much time should be taken for witness testimony. >> mr. jay sekulow ended his argument against witnesses with where mr. philbin essentially began it all comes back to dershowitz. if the president can do under article two. was a point of calling witnesses and article two. the only constraining principle what is the limiting principle in the dershowitz argument if the president can seek foreign interference in the election that he believes his election is in the national interest then you cannot impeach him how damaging it may be what is the limiting principle and i suppose it's only this. it only requires the president to believe the reelection is in the national interest. and word require and extraordinary level of self reflection and insight for the president to conclude his own reelection is not in the national interest. not unprecedented mind you, that was the decision lbj ultimately arrived at. but i would not want to consider that a meaningful limitation on presidential power and neither should you. finally, counsel expressed in dignan's that we should suggest it's not just the senate or the president but also the senate. how dare the house manager suggest that your decision should reflect on this body so let me read you a statement made by one of your former colleagues. this is what former us senator john warner republican of virginia had to say. and those two try their best to understand the complex impeachment issues deliberated in the u.s. senate and are central to the matter shed the senate allow additional sworn testimony with firsthand knowledge with those documents cracks and as the presidential impeachment trial i am mindful of the difficult responsibilities that they now shoulder. not only is the president on trial but so is the senate itself. as such i am strongly supportive of the efforts of my former republican senate colleagues who are considering that the senate accept the introduction of additional evidence that they deem relevant. they were always to accommodate fellow points of view to have those outcomes to serve the nation's interest. if witnesses are suppressed in the trial and the majority of americans are left believing that it was a sham i can only believe the lasting damage done to the national consensus. about the long life of our nation federal and state judicial systems with the judicial norms relevant documents and i respectfully urge the senate to be guided by the rules of evidence with those norms precedent and institution to uphold the constitution and the rule of law. with witnesses and documents as part of the impeachment trial that is your colleague john warner. senators, there was a storm blowing through this capital the winds are strong they move us in uncertain and dangerous directions. jefferson once said i would consider trial by jury as the only anchor yet imagined by man with the government to be held to the principles of the constitution. the only anchor ever imagined yet imagined by me and by which a government can be held to the principles of its constitution. i would submit to you that we are adrift. but if we hold true, if we have faith that the ship of state can survive truth, the storm shall pass. i yield back we now castable on the witness question and once that vote is complete, i would ask that the senate stand in recess subject to follow the chair. >> thank you. >> without objection. >> so ordered. >> the question is shall it be in order to consider in debate under the impeachment rules, any motion to subpoena witnesses or
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