February 4, 2020

Whitehouse Calls on Senate Never to Repeat Trump Impeachment Trial

Senator rebukes partisan cover-up – a process without witnesses and marked by indefensible conduct by the White House defense team

Washington, DC – Today, ahead of a final vote in the impeachment trial of President Donald Trump expected Wednesday, U.S. Senator Sheldon Whitehouse (D-RI) delivered remarks on the Senate floor regarding the impeachment process.  Whitehouse focused his remarks on the troubling conduct of the Trump defense team.  He called on the Senate to ensure that future impeachment proceedings adhere to the Constitution and rules of the body, and that the Trump impeachment trial not serve as precedent moving forward.

In my view, the facts are clear; the conduct impeachable; and the obstruction unprecedented.  In my view, this impeachment process ran into a partisan wall; and the Senate’s part was to deny the American people the most basic elements of a fair trial: witnesses and evidence,” Whitehouse said.  “Politics cast very long shadows over this proceeding; this was not our finest hour by any stretch; and much of what was said and done here should not be repeated, let alone treated as precedent.”

The impeachment trial in the Senate is set to be the first in U.S. history not to include witnesses despite overwhelming majorities of the American people supporting them.

After closing arguments from House managers and the White House defense on Monday, senators have been permitted to speak for 10 minutes each about impeachment.  Wednesday, at 4 p.m., the Senate will vote on whether to convict and remove President Trump based on the two articles of impeachment adopted in the House.

Full text of the senator’s remarks is below. 


Senator Sheldon Whitehouse

Floor Remarks – Impeachment – AS PREPARED FOR DELIVERY

February 4, 2020

Well, here we are.  The outcome is settled, as it was from Day One.  In my view, the facts are clear; the conduct impeachable; and the obstruction unprecedented.  In my view, this impeachment process ran into a partisan wall; and the Senate’s part was to deny the American people the most basic elements of a fair trial: witnesses and evidence.  Hamilton warned us of “the greatest danger” in impeachments “that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”  In my view, that danger has met us.  As a boy, I often sang a hymn with the stanza that “to every man and nation comes a moment to decide, in the strife of truth with falsehood for the good or evil side.”  In my view, the Senate chose the wrong side.  We are going to disagree about a lot here.  So let me focus on two thoughts that perhaps we can agree on.

One is that what we have done here should carry little weight as precedent.  Politics cast very long shadows over this proceeding; this was not our finest hour by any stretch; and much of what was said and done here should not be repeated, let alone treated as precedent. 

I hope history treats this episode as an aberration, not a precedent.  Too many things that are right and proper had to be bent or broken to get to the preordained result, and too much of what was said by White House counsel was not only wrong, but disgraceful. 

The presentation by White House counsel was characterized by smarminess, smear, elision, outright misstatement, and various dishonest rhetorical tricks that I doubt they would dare to pull before judges.  Knowing that we were a captive and silent audience; knowing the outcome was predetermined in their favor; and grandstanding for the TV audience, particularly the Audience of One, they delivered a performance that leaves a stain on the pages of the Senate record. 

Perhaps there will be consequences for some of their conduct in our Chamber.  I ask that my further remarks on this subject be attached as an appendix to this statement.

So enough of my professional disgust with their performance.  Let us agree that this ought not be precedent.  

Let us agree on something else.  There is one particular argument the White House made that we should trample, discard, and put out into the trash: the notion that a United States District Court can supervise our Senate impeachment proceeding.  I hope we can agree on this.

As a Court of Impeachment, we are constituted at the Founders’ command.

The Chief Justice presides, at the Founders’ command.

We are convened as a body, at the Founders’ command. 

And at the Founders’ command, the Senate has the “sole Power to try all Impeachments.”

Every signal from the Constitution directs that we try Impeachments; and no part of the Senate’s power to do so is conferred anywhere else in the government.  It’s on us.

The President’s counsel proposed that they may interrupt the Senate’s trial of impeachment, in order to go down the street to the United States District Court to litigate trial determinations about evidence and privilege in our proceeding.

There are three arguments against this proposition.

The most obvious one is the Constitution.  The Constitution puts the trial in the hands of the Senate, sitting as a Court of Impeachment, and makes no mention of any role for any court to supervise or pass on the Senate’s conduct of this trial.  It’s simply not in the Constitution.

The second argument is the improbability that the Founders would convene the United States Senate as a Court of Impeachment; bring the managers of the United States House of Representatives here to present their charges; put the Chief Justice of the United States into the chair to preside over the trial; give the Senate the “sole Power” to try the impeachment; and then allow a defendant to run down the street to a District Judge and interrupt the proceedings.

That idea is contrary to common sense as well as constitutional order.  The impeachment provisions of the Constitution were adopted by the Founders in September of 1787, and ratified with the Constitution in 1788.  The Judiciary Act establishing lower courts did not pass until 1789.  It is hard to imagine that the Founders meant the proceedings and determinations of our Senate Court of Impeachment to be subject to the oversight of a judge down the road from us, whose office did not even exist at the time.

The Founders in the Constitution put this squarely on us. No one else is mentioned.  It is our “sole Power.”  It is the duty of the Chief Justice under the Constitution to preside over this trial, it is his duty to make appropriate rulings; and it is on us to live with that. Unless, as we may, we choose to overrule the Chief Justice, as a body, by recorded vote, and live with that. 

We run this trial.  No one else.  We are responsible to the people of the United States to run this trial.  We were trusted by the Founders to live up to those responsibilities.  As a Court of Impeachment, it is all on us.  The Founders put it squarely on us.  We took that job when we took our oaths.

That means we control the trial rulings, the timing, the evidence determinations, and the privileges we will accept.  We can accept the rulings of the Chief Justice, or we can reverse them.  It’s our job. 

Previous impeachments record the Senate making just such rulings.  Never has the Senate referred such a ruling to a court.  Indeed in (Walter) Nixon v. United States, 506 U.S. 224 (1993); the Supreme Court held that federal courts have no power to review procedures used by the Senate in trying impeachments, that it was a non-justiciable political question; that “the Judiciary, and the Supreme Court in particular, were not chosen to have any role in impeachments.” 

The Supreme Court even foresaw the delays that White House counsel threatened us with, and saw them as an argument against any judicial role.  The Court said, “opening the door of judicial review to the procedures used by the Senate in trying impeachments would ‘expose the political life of the country to months, or perhaps years, of chaos,’” and the Court particularly highlighted this concern for impeachments of a President.  

The Constitution, common sense, and our impeachment precedents all put the responsibility for a Senate Trial of Impeachment squarely on us.  We should not shirk that responsibility.  This has been a sad and sordid moment for the Senate; it has done harm enough; let it not provide any credit to this false White House argument; and let it not be precedent for future presidential misconduct. 


Appendix:  The conduct of White House counsel in the Trump impeachment trial raise grave concerns.

A staunch Republican friend, who is an able and eminent lawyer, emailed me about a White House counsel argument, calling it “the most shocking thing I have seen a ‘serious’ lawyer say in my entire legal career.”  He referred to Professor Dershowitz, but the conduct of White House counsel in this matter has indeed been shocking far beyond the excesses of Professor Dershowitz.

In some cases, we do not know who pays them.  Mr. Sekulow is evidently anonymously paid, with dark money, through a mail drop box.  Who is he working for here?  Does his secret benefactor create a conflict for him?  We should know.

Among them are lawyers who appear to have grave professional conflicts.  They represent the President although they are fact witnesses to conduct charged in the impeachment.  This concern was brought to their attention by House letter on January 21, 2020, putting them on notice.  They ignored the letter. 

The House argued that members of the White House counsel team actually administered a massive cover-up, using extreme and unprecedented arguments to protect a blanket defiance against congressional inquiry into alleged Presidential misdeeds, with the intent to hide evidence of those misdeeds.

There is new evidence that counsel were not just fact witnesses, but present at meetings in which the scheme at issue was advanced, and the misconduct alleged was confessed to, by the President.  Being present during the commission of the offense and witness to an overt act in furtherance of the alleged scheme is more grave than being a mere fact witness.  This needs further inquiry, but it raises the question of actual participation in the crime or fraud or misconduct at issue, which would waive their attorney-client privilege.

They have not been candid about the law.  They have argued over and over that they will delay the Senate proceedings by litigation in United States District Courts if we allow witnesses or subpoenas, mentioning only once, in their pretrial brief, the case of Walter Nixon v. United States, where the Supreme Court save the federal Judiciary “no role” in senate impeachment proceedings, warning “that opening the door of judicial review to the procedures used by the Senate in trying impeachments would ‘expose the political life of the country to months, or perhaps years, of chaos,’” the very delay White House lawyers have threatened.

Further investigation may reveal whether various counsel made, or permitted co-counsel to make, arguments at odds with facts to which they were witness, thereby deliberately misleading the Senate. For a lawyer to participate in or be immediate witness to criminal or impeachable wrongful activity; and then practice as a counsel in matters related to that criminal or impeachable or wrongful activity; and then conceal from that tribunal what they knew about that criminal or impeachable or wrongful activity, and even affirmatively mislead that tribunal about the misconduct as they witnessed it, would be attorney misconduct of the gravest nature. 

In light of these problems, one recurring argument by White House counsel takes on new meaning.  In an often conflated argument, White House counsel insisted that no crime was alleged in the House of Representatives’ Articles of Impeachment and that there was no crime committed.  If, as recent evidence suggests, at least one White House counsel was present at and participated in a meeting in furtherance of the scheme at issue, the argument that the scheme was not criminal is deeply self-serving.  That self-serving nature is precisely why counsel under that sort of conflict of interest should not appear in proceedings addressing conduct which they witnessed, which they aided or abetted, or in which they participated.

White House counsel used their time before us to smear non-parties; to present virtual political commercials; to misstate, exaggerate or mislead about legal propositions; to misstate, exaggerate or mislead about factual propositions; to misstate, exaggerate or mislead about House managers’ arguments; and to float conspiracy theories and unsupported political charges to the public audience.  In some cases, arguments are deeply unfair: for instance, calling secondary witnesses’ testimony hearsay and secondhand at the same time they are blocking the direct witnesses’ testimony.  It was in sum, a sordid spectacle, one that few if any courts would have tolerated.  They came into our House, and dirtied it. 



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