January 29, 2020

VIDEO: Harris Notes Trump’s Similarities to Nixon, Asks House Managers About Threat to System of Justice if the Senate Acquits Trump

To view full video of Harris’ question and House managers’ response, click here. 

To download full video of Harris’ question and House managers’ response, click here.

WASHINGTON, D.C. — U.S. Senator Kamala D. Harris (D-CA) on Wednesday asked House impeachment managers to elaborate on the consequences for the United States system of justice if the Senate fails to hold the president accountable in the impeachment trial of President Trump.

Through the Chief Justice of the United States, Harris noted, “President Nixon said, ‘When the president does it, that means that it is not illegal.’ Before he was elected, President Trump said, ‘When you’re a star, they let you do it. You can do anything.’ After he was elected, President Trump said that Article II of the Constitution gives him ‘the right to do whatever [he] want[s] as president.’”

Harris asked, “These statements suggest that each of them believed that the president is above the law —a belief reflected in the improper actions that both presidents took to affect their reelection campaigns. If the Senate fails to hold the president accountable for misconduct, how would that undermine the integrity of our system of justice?”

Rep. Adam Schiff answered, “Senators, I think this is exactly the fear. If you look at the pattern in this president's conduct in his words, what you see is a president who identifies the state as being himself. When the president talks about people that report his wrongdoing, for example, when he describes a whistleblower as a traitor or a spy. The only way you can conceive of someone who reports wrongdoing as committing a crime against the country is if you believe you are synonymous with the country.

Full transcript of the exchange is below:

ROBERTS: Thank you, counsel. Senator.

HARRIS: Mr. Chief Justice, I sent a question to the desk.

ROBERTS: Thank you. The question from Senator Harris is for the House Managers. President Nixon said, "When the president does it, that means it's not illegal". Before he was elected, President Trump said, "When you are a star they let you do it, you can do anything.” After he was elected, President Trump said that Article 2 of the Constitution gives him "the right to do whatever he wants as President". The statement suggests that each of them believed that the president is above the law – a belief reflected in the improper actions that both presidents took to affect their reelection campaigns. If the Senate fails to hold the president accountable for misconduct, how would that undermine the integrity of our system of justice?

SCHIFF: Mr. Chief Justice, Senators, I think this is exactly the fear. If you look at the pattern in this president's conduct in his words, what you see is a president who identifies the state as being himself. When the president talks about people that report his wrongdoing, for example, when he describes a whistleblower as a traitor or a spy. The only way you can conceive of someone who reports wrongdoing as committing a crime against the country is if you believe you are synonymous with the country. That any report of wrongdoing against the president or the person of the president is a treasonous act. It's the kind of mentality that says, “Under Article 2 I can do whatever I want, that I'm allowed to fight all subpoenas.”

Now, counsel has given a variety of explanations for the fighting of all subpoenas. They might have a plausible argument if the administration had given hundreds of documents but reserved some and made a claim of privilege or if the administration had said we would allow these witnesses to testify, but with these witnesses, with these particular questions, we want to assert privilege.

But of course, that's not what was done here. What we have instead is a shifting series of rationales and explanations and duplicitous arguments, some made in court and some made here. You have the argument that the subpoenas aren’t valid before the House resolution and then with respect to subpoenas issued after the House resolution, like to Mulvaney, those are no good either. You have the argument made that we have absolute immunity and the court that addresses this says, “No you don't. You are not a king.” That argument may be thought of with favor by various presidents over history, it's never been supported by any court in the land, there is no constitutional support for that either.

Documents that are being released right now, as we sit here, and it’s a mystery to the country and a mystery to some of us: how are private litigants able to get documents through the Freedom of Information Act that the administration has withheld from Congress? If they were operating in any good faith, would that be the case, and of course the answer is no. What we have instead is, “We’re going to claim absolute immunity, though the court says that doesn't exist.”

Now they said, well we – you know, the House withdrew the subpoena on Dr. Kupperman, why would they withdraw the subpoena on Dr. Kupperman when he was only threatening to tie you up endlessly in court? Now, we suggested to counsel for Dr. Kupperman that if they had a good faith concern about testifying, if this was really good faith and it wasn’t just a strategy to delay, if it wasn’t just part of the president’s wholesale ‘fight all subpoenas’, they didn't need to file separate litigation because there was actually a case already in court involving Don McGann on that very subject.

That was ripe for decision, indeed the decision would come up very shortly thereafter. And we said, “let's just agree to be bound by what the McGann court decides.” Well, they didn't want to do that and it became obvious why once the McGann court decision came out, because the McGann court said, “There is no absolute immunity, you must testify.”

And by the way, if you think people involved in national security, i.e. Dr. Kupperman and John Bolton, if you’re listening, if you think you’re somehow absolutely immune, you're not. So did Dr. Kupperman say, “Well now I have the comfort I needed, because the court has weighed in”? The answer is, of course not. Now counsel says, “Well, we might've gotten a quick judgment in Kupperman.” Yeah, in the lower court. Do any of you believe for a single minute they wouldn't appeal to the Court of Appeals and to the Supreme Court, and if the Supreme Court struck down the absolute immunity argument, they wouldn’t be back in the district court saying, “Okay, he’s not absolutely immune anymore, but we’re going to claim executive privilege over specific conversations that go to the president’s wrongdoing.”

Okay, that is a sign of a president who believes he is above the law. That Article 2 empowers him to do anything he wants, and I will say this: if you accept that argument, if you accept the argument that the president of the United States can tell you to pound sand when he tried to investigate his wrongdoing, there will be no force behind any Senate subpoena in the future. The ‘fighting all subpoenas’ started before the impeachment.

If you allow a president to obstruct Congress so completely, in a way that Nixon could never have contemplated nor would the Congress of that day have allowed, you will eviscerate your own oversight capability.

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