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  U.S. Senate Impeachment Trial Constitutionality Arguments  CSPAN  February 9, 2021 7:28pm-9:38pm EST

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senators, this cannot be our future. this c cannot be the future of america. we cannot have presidents inciting immobilizing mob violence against our government and our institutionst because they will not accept the constitution of the united states. much less can we create a new january exception in our pressured beloved constitution that prior generations have died for and foughtie for. so the corrupt presidents have several weeks to get away with ever they want to do. history does not support a january exception in any way, so why would we invent one for the future? we close mr. president almost
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out of time. >> >> the senate will come to order. you have two hours, ms. rasco has 33 minutes. >> have a seat mr. president. >> you may. >> mr. president and members of the united states senate, thank you for taking the time to hear from me. my name is bruce castor. i am the lead prosecutor -- lead counsel for the 45th president of the united states. i wasar the assistant d.a. for
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such a long time i keep saying prosecutor, i do understand the difference mr. president. before i begin, i want to comment on the outstanding presentation from our opponents and the emotion that certainly welled up and congressman raskin about his family being here during that terrible day. m you will not hear any member of the team representing the former president trump say anything but in the strongest possible way denounce the violence of the rioters and those that breach the capitol, the very sit it so of our democracy. literally the symbol that flashes on the television whenever you're trying to explain that we are talking about the united states.
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it's an instant symbol and to have an attack is repugnant in every sense of the word. the loss of life is horrific. : : : homicides cases and catching criminals recommended murders. i'm quite an extensive experience in dealing with the aftermath of those things. and certainly is an fop member and member of any police organizations myself, we mourn the loss of the capital police >> we mourn the loss of the capitol police officer who i understand who is lane not too far away from here and you know many of you in this room over your careers before they reach the summit and senate would've had times where you represented your local communities as
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assistant district attorney as assistant state attorney's, you know this to be true when a horrific event occurred in your county or your jurisdiction if it was a state jurisdiction you know there's a terrible outcry in the public immediately react with a desire to pay because something really bad happened that the natural reaction of human beings. it's a natural reaction of human beings because were generally social people, we enjoy being around one another even in d.c. we recognize that people all the world over and especially americans who share the special bond o with one another love the freedoms that this country gives
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us and we all feel that if somebody is unsafe when they're walking down the street the next person could be you, your spouse, one of your children, some other person that you love and no personally. >> you'll never hear anybody representing former president trump say anything at all other than what happened on january 6 and the storming and breaching of the capital should be denounced in the most vigorous terms. nor those persons responsible should be prosecuted to the fullest extent that our rules allow and indeed i followed some of thosen cases and those prosecutions and it seems were doing a pretty good job of
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identifying and prosecuting those persons who committed those offenses and i commend the fbi and district of columbia police in the other agencies for their work. it is natural to recoil, it's an immediatemm thing, it comes over you without your ability to stop retributione for who caused this awful thing, how do we make them pay, we recognize in the law and many of you are lawyers, i've been a lawyer 35 years, longer than me, many longer than me probably. and we know we have a specific body of law that deals with passion and rage blinding logic and reason that the difference between manslaughter and murder, manslaughter is the killing of a
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human being of a sudden and intense provocation but murder is done with cold blood and reflective thought we are so understanding of the concept pthat people's minds can be overpowered with the motion where logic does not immediately kick in that we have recognized examples that otherwise would be hearsay instead when you're driving down the street and you look over at your wife and you say that guy's about to drive through the red light and kill that person your wife can testify to what you said because even though it is technically hearsay is an exception because it's an event living through the person, why, no opportunity for reflective thought and there is all sorts of examples that we recognize in the law for why
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people immediately desire retribution, immediately recognize in the law that people can be overcome by events and you know senators of the united states they are not ordinary people, their extraordinary people in the technical sense when i was growing up in suburban philadelphia my parents were big fans and senator dirksen recorded a series of lectures that my parents had on a record and we still know what
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records are on the thing you put the needle down on and you play and here's little bruce eight, nine, ten years old listening to this in the late 60s and if you ever heard her voice is the most commanding in the voice just uses the sincerity and must've been a phenomenal united states senator. he does not talk about ordinary people as we do in the law we apply the ordinary person standard he talks about extraordinary people he talks about gallant men and he talks about the album and i would
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watch television and senator goldwater andat senator burr or senator mansfield and i would be fascinated by these great men and everybody's parents say when they're growing up, you could grow up to be a united states senator, you could do that there men and women like you are. then everett dirks tells us they are not. they are gallant men and women that do extraordinary things when their country needs them to do it the united states senators sreally are different and i have been around the united states senators before i would like to think friends of mine when were not politically adverse, i have
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been around their predecessors and one thing i have discovered whether it be democrats orer republicanss, united states senators are patriots first, patriots first they love their country, they love their families, they love the states that they represent, there is not a member in this room who has not use the term i represent the great state of fill in the blank. why, they're allll great, yeah t you think yours is greater than others because these are your people. because these are the people that sent you here to do their work. they trusted you with the
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responsibility of representative i feel proud to know my senators senator casey appear in the back, senator toomey to the left, it is funny show you ever notice how we near hear others talk about to win your home in your state, they will say i talked to my senator or i talked to somebody on the staff of my senator it's always my senator why is it that we say my senator. we say that because the people you represent are proud of their senators. they absolutely feel that connection of pride because that's not just pat toomey of
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pennsylvania that is my senator from pennsylvania or bob casey from scranton, that is my senator. and you like that people like that the people back home really do. in the united states senators have a reputation check and a reputation for cool headedness the men and women that we sent from back home to d.c. to look afterc our interest we feel a sense of ownership and a sense of pride in our senators, there is plenty of times i've been around in political gatherings right here, there is no way senator toomey is going to allow that, i don't mean to pick on
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you pat but there is no way senator casey is going to allow that. because wee feel pride in something bad is potentially in theth wind and we expect our united states senators to not react to popular will and not reacting to popular emotions we expect them to do what is right, notwithstanding what is meimmediately inexpedient that e memedia tells us is the topic of the day. senators are patriots, their family men and women they are fierce advocates for the great state in which they represent and somewhere far down that list of attributes wayann below patrt and way below love of familyov d country and way below fierce advocates for their states, far
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down at least that is what i thought anyway and i still think that. somewhere far down that list senators have some obligation to be partisan to represent a group of beliefs that are similar to beliefs shared by other united states senators. i understand that. and in fact i have no problem with that system. it helps us debate and decide what is best for america the robust debate of different points of view. and i daresay that senator schumer and senator mcconnell represent those things in this body and make sure that everything is talked out and robustly debated in this room before the united states senators make a decision of extreme importance to the people that they represent.
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i know you are allowed to talk but i don't see either one of them jumping up saying the wrong because i think that's what happened i think the united states senators tried to listen to eachte other's views and i think the united states senators try to do what's right for the country, far down is partisanship, and our system of government and if you read the federalist papers were very fortunate because the federalist papers were offered as an explanation for why it is the original states should adopt the constitution these were persuasive documents about why the constitution is a good thing. because the individual state legislatures didn't adopt the constitution we would not have it so mr. j and mr. madison and mr. hamilton they had an incentive to explain what they were thinking when they wrote
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it. because they are explaining to other people who represent individual states why it is that they feel this is the right thing to do. and in fact as many of you well know madison had to promise there will be a bill of rights immediately upon adoption or we would have a constitution. even then there was a horsetrading going on in the legislative body of the united o states. the other day when i was in washington i came down earlier in the week to try to figure out how to find my way around, i worked in this building 40 years ago and i got lost then and i still do. but in studying the constitution and all the years i was a prosecutor were so many things
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depend on interpretations of phrases in the constitution i learned that this body which one of my worldly colleagues said is the greatest delivered body in the entire world and i agree, that particular aspect of our government was intentionally created if you read the federalist papers. the last time a body such as the united states senate sat at the pinnacle of government with the responsibility that it has today it was happening in athens and it was happening and rome. republicanism, the formal government republicanism throughout history has always and without exception all
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because of fights from within because of partisanship from within because of bickering from within. and in each one of those examples that i mentioned and there're certainly others that are smaller countries that lasted for less time and i don't know off the top of my head but each one of them once there was the vacuum created that the greatest deliberative bodies in the senate sitting in athens, the city of rome, the moment that they evolved into such partisanship it is not as though they ceased to exist, they ceased to exist as representativepr democracy. both replaced by
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totalitarianism. paraphrasing the famous quote from benjamin franklin who as a philadelphian i feel i can do that because he's my founding father to, he who would trade liberty for some temporary security deserve neither liberty or security if we restrict liberty to attain security we will lose both. and isn't the way that we have enshrined in the constitution the concept of liberty that we think are credible, the very concept of liberty that drove us to separate from great britain, i cannot believe these fellas are quoting what happened pre-revolution we left the british system, and for going to use prerevolutionary history and great britain then the president
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we have a parliament and the king. his acta precedent that were headed for? >> it is not an accident that the very first liberty if you grant me that our liberties are numerate in the bill of rights, it is not an accident that the very first liberty in the first article of the bill of rights is the first amendment which says congress shall make no law abridging freedom of speech et cetera. congress should make no law, the very first one, the most important one the ability to have free and robust debate, free and robust political
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speech. mr. ruskin and his team brought up it somehow a suggestion from former president trump steam when various public officials were not denouncing the violence that we saw over the summer that that was somehow the former presidenteq equating that speech to his own, not at all, exactly backwards. i saw a headline representative so-and-so seeks to walk back comments i forget what it was something that bothered her. i was devastated when i saw she thought it was necessary to go on television yesterday or the day before and said she needs to walk back her comments, she should be able to, as much as
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she wants. and she should be able to say exactly as she feels. and if she feels that the supporters of then president trump are not worthy of having their ideas considered she should be permitted to say that and anybody who agrees should be permitted to say they agree. that is what we broke away from great britain in order to be able ton do to be able to say what we thought in the most robust political debate. my colleague his going to give you a recitation on the first amendment law of the united states. i commended to your attention the analysis that he's going tol give you and i don't expect and i don't believe the former president expects anybody to walk back any of the language, that's how they feel about the way things transpired over the last couple of years in this country, they should be allowed to say that and i will go to
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court and defend them if anything happens to them as a result. if the government takes action against a state representative or the u.s. representative who wants to walk backer her commens the government takes action against her, i have no problem going into court and defendingng her right even though i don't agree with them. >> this trial is not about trading liberty for security, it is about trading -- it's about suggesting that it's a good idea that we give up those liberties that we have so long fought for, we have sent armies to other parts of the world to convince those governments to implement the freedoms that we enjoy, this
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trial is about trading liberty for the security from the mob, honestly, no. we cannot be thinking about that, we cannot possibly be suggesting that we punish people for political speech in this country and if people go and commit lawless acts as a result of their beliefs and they ccrossed the line they should e locked up. and in fact i've seen quite a number of the complaints that were filed against the people who reach the capital some charged in conspiracy not a single one charged in conspiracy the 45th president of the united states probably because prosecutors have an ethical requirement that they are not allowed to charge people with
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criminal offenses without probable p cause. you might consider that. and if we go down the road that my very worthy adversary here a mr. raskin ask you too go down, the floodgates will open, i was going to say instead of floodgates i was going to say originally will release the world when which is the biblical but i subsequently learned that i got here that that particular phrase has already been taken so i figured i better change it toe floodgates. but the political pendulum will shift one day, this chamber and the chamberth across the way wil
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change one day and partisan impeachments will become commonplace, until the impeachment of bill clinton no one alive had ever lived through presidential impeachment, not unless some of you aref 150 yeas old, not a single person alive had lived through presidential impeachment now most of us have lived through three of them. this is supposed to be the ultimate safety battle the last thing that happens the most rare treatment and a session where this body is sitting of a court of impeachment among the most rare things that it does, the
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slippery slope principal will have taken hold if we continue to go forward with what is happening today and schedule to happen laterap this week and afr we are long done here and after there has been a shift in the political winds and after there is a change in the makeup of the united states house of representatives and maybe a change in the makeup of the s.united states senate, the pressure from those folks back home especially for members of the house is going to be tremendous because remember the founders recognized that the argument that i started with that political pressure is driven by the need for immediate
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action because something under contemporary community standards really horrific happened in the people represented by the members of the united states house of representatives become incensed and what you do as a federal issue back in suburban philadelphia andia something happens that makes the people who lived there incensed, you call your congressman and your congressman elected every two years with her pulse on the people of the district 750,000 people they respond and boy do they respond the congressman calls you back, the staffer calls you back and you get all the information that they have on the issue, sometimes you get invited too submit a language that would improve whatever the issue is, when the pendulum swings perhaps the next person that gets impeached and for you
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to consider is eric holder during fast and furious, attorney general of the united states or any other person that the other party considers to be a political danger to them down the road because of their abilities and being articulate and having a resume that shows that they are capable. i picked eric simply because i think he has a tremendous career and he might be somebody that some republicans somewhere might be worried about. so maybe thes next person they o after his eric holder. in the republicans might regain the house in two years. history does tend to suggest that the party out of power in the white house does well in the midterm elections in the 2020
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elections the house majority narrowed and there was again republicans. so the members of theau house ty have to worry about these consequences because if they doc not react to whatever the problem of the day is, somebody in the jurisdiction, somebody is going to say if you make me the congressman all react to that and that means the sitting member has to worryr about it because their terms are short. and it is not just members of the house of representatives with their short terms, i saw on television the last couple t of days the honorable gentleman from nebraska mr. sass i saw that he faced backlash back home because of a vote thathe he made
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some weeksad ago. the political party was complaining about the decision he made as a united states senator. it is interesting because i don't want to steal the thunder from the other lawyers but nebraska you're gonna hear is quite a judicial thinking place and just maybe senator sass is onto something that you will hear about what it is that the nebraska courts have to say about the issue that you will are deciding this week there seem to be pretty smart jurors in nebraska and i can't believe united states senator doesn'tst know that. a senator like the gentleman from nebraska who supreme court history is ever present in his mind andnd rightfully so he facs the whirlwind even though he
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knows what the judiciary in his state thinks, people back home will demand their house members continue the cycle as political fortunes rise and fall, the only entity that stands between the bitter infighting that led to the downfall of the greek republic and the roman republic and the american republic is the senate of the united states. shall the business of the senate and thus the nation come to a halt not just for the current week's while the new president is trying to fill out his administration but shall the business of the senate and the nation come to a halt because impeachment becomes the rule rather than theth rare exceptio.
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i know you can see this is a possibility because not a single one of you ever thought you would be doing a second impeachment inside of 13 months. and the pressure will be enormous to respond in kind. to quote everett dirksen the gallant men and women of the senate will not allow that to happen in this republic will endure because the top responsibility of the united states senator and the top characteristic that you all have in common and boy this is a diverse group but there is not a single one of you who does not consider yourself a patriot of the united states and to there
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is not a single one of you who does not consider the other 99 to be patriots of the united states. and that is why this attack on the constitution will not prevail. the document that is before you is flawed, the rule of the senate concerning impeachment documents, articles of impeachment rule 23 says such documents cannot be divided, you might've seen we wrote that in the answer, and might've been a little legalistic for the newspapers to opine on but there is some t significance, the houe managers, clever fellows that they are they cast a broad net
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they need to get 67 of you to agree to their rights that is a good strategy, i would use the same strategy except there was a rule that said you cannot use the strategy. you see rule 23 says the article of impeachment is indivisible and the reason why that is significant is you have to agree that every single aspect of the entire document warrants impeachment because it's an all or nothing document you cannot cut out parts that you agree with warrants impeachment and parts that don't. because it is not divisible. it flat out says in the senate rules it's not divisible. no previous impeachment like president clinton said the president shall be found guilty of high crimes and s misdemeanor for engaging in one or more of
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the following in all he had to do was when one, that has to be all or nothing. and some of these things they are o asked to consider might be close calls in your mind. but one of them is not. the arguing about the 14th amendment is absolutely ridiculous, the house managers tell you that the president shouldd be impeached because he violated the 14th amendment here's what the 14th amendment says, no person shall be a senator or representative in congress or elector of president or vice president or hold any office civil or military on the united states or any other state having previously taken an oath
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as a member of congress or as an officer of the united states or a member of any state legislature or as an executive or judicial officer of any state to support the constitution and shall have engaged a rebellion against the same. were giving aid or comfort to but congress may vote by two thirds of each house to remove such disability. it does not take a constitutional scholar to recognize thatri is written for people who fought for the confederacy were previous all military officers in the government and the confederacy and it doesn't take a constitutional scholar to require that they become fictive first. in a court with due process of law. so that question can never be right until the sins of happen. if you agree with thosegr arguments and i know he will get your constitution out and read
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it the suggestion that the 14th amendment applies is ridiculous. and if you come to the conclusion because the managers have not separated out the counts within the article of impeachment the whole thing falls, i did not write that, they are married to that i wrote it out and responses because they did not know how to wipe out network. importantly senators inn the pat realized you cannot do that because you passed a rule this is you cannot do that. it's flawed and other ways to my colleagues will explain that. i was struck i thought the house managers who spoke earlier were brilliant speakers and i'll make
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some notes on the w here would'e i thought leader and in closing the case but i thought they were brilliant speakers and i loved listening too them. they were smartng fellows. but why aren't the house managers afraid and why is the majority of the house of representatives afraid of the american people, let's understand why we are really here, we are really here because the majority of house of representatives does not want ta face donald trump as a political rival in the future, that's a real reason were here and that's why they have to get over the jurisdictional hurdle that they can't c get over that's why they have to get over ithe to get to the part of the constitution that allows t removal. so nobody says about plainly. but unfortunately i have a way of speaking that way.
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and the reason i'm having trouble with the argument is the american people just spoke in they just changed the ministrations so in the most favorable to my colleagues on the other side of f the aisle their system works. the people are smart enough in the most favorable to them they're smart enough to pick a new administration if they don't like the old one and he's down there on pennsylvania avenue probably wondering how comes none of my stuff is happening at the capital. why do the members of the house of representatives, the majority of house of representatives why are they afraid of the very people that sent them to do this
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job, the people they will hope continue to send them back here. why are they afraid the same people who was smart enough to pick them as a congressman are not smart enough to pick somebody who is a candidate for president of the united states. why fear that the people will all of a sudden forget how to choose an administration in the next few years. and in fact this happens all the time when there are changes in administrations from one term president too others. nixon was short of one and half term but nixon took florida and florida to carter and carter to reagan-bush 41 to clinton, that happens. the people get tired of an administration they do not want and they know how to change it. and they just did.
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so why think that they won't know how to do in 2024 if they want to. or is that what the fear is the fear that the people in 2024 will want to change and will want to go w back to donald trup and not the current occupant of the white house prison abiding. all of these other times the people were smart enough to do it to choose who the president should be. all these other time smart enough to choose who congress is and choose you will as well. and not to changing administration. especially since they just did so it seems pretty evident to me that they do know how. it has worked 100% of the time,
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100% of the time in the united states when the people have been fed up with and had enough of the occupant of the white house they change the occupant of the white house. now, i know that one of the strengths of this body is deliberative action and i saw senator manchin on the tv the other night talking about the filibuster and the main point was that senator manchin was explaining to those of us who don't operate here all the time that this body has an obligation to try to reach consensus across the aisle to legitimize the decisions it makes, obviously
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he's capable of making his own pronouncements but that's what it came across on the television and i think that's a good wayoof saying why the senator of the united states is different than other places. the constitution is a document to protect the rights of the minority not the rights of the majority. congress should make no law abridging all of these things, that is because those are the things that were of concern. at the time. it is easy to be in favor of liberty and equality and free speech when it is popular. i think that i want to get my colleague mr. sean an opportunity to explain to allllf
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us the legal analysis on jurisdiction, i'll be quite frank with you we changed what we were going to do on account that we thought the houseag managers presentation was well done. and i wanted you to know that we have responses to those things, i thought the first part of the case which was the equivalent of a motion to dismiss was going to be about jurisdiction alone and one of the fellows who spoke for the house managers in the former criminal defense attorney seem to suggest there's something nefarious that we were discussing jurisdiction and trying to get the case dismissed but this is what happens in the case because jurisdiction is the first thing that has to be found. we have counter arguments to everything that they raised and
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you will hear them later on inn the case from mr. vander being and myself. but on the issue of jurisdiction, the scholar of jurisdiction i'll leave you with this before i invite david to come up and give you the area explanation, some of this was shown on the screen but article one section three says judgments in cases of impeachment shall not extend further than to removal from office and disqualification to hold in the office of honor, trust, profit under the united states but the party convicted shall nevertheless be liable and subject to indictment trial judgment and punishment according to law.
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so this idea of a january anna steve is nonsense. if my colleagues on this side oe the chamber actually think that president trump committed a criminal offense, let's understand the high crime is a felony and misdemeanor is a misdemeanor the words are not changed much overr time. , after he is out of office you go and arrest him. so there is no opportunity where the president of the united states can run rampant in january and of his term and go away scott free. the department of justice does know what to do with such people. so far i have not seen any activity in that direction and not only that the people who stormed this building and breached it werear not the cuesf conspiring with the a president. but the section that i read judgment in other words is about
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thing that can happen, the judgment in cases of impeachment i.e. what we are doing shall not extend further then removal from office, what is so hard about that. which of those words are unclear, shall not extend further then removal from office, president trump no longer is in office. the object of the constitution has been achieved, he was removed to the voters. mr., are you ready? now that i've taken all of his time. >> thank you, mr. president.
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[silence] >> mr. president leaders -- quick adjustment. i stand before you on what i always thought the hallowed ground of democracy. in this room american lives have been changed so dramatically in just my lifetime too so many of your legislative initiatives from the civil rights act when i was a child through most recently the first step act.
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laws that have provided major opportunities for americans to move forward and upward and more fully enjoy all of the attributes of what is been the greatest nation on earth. i have seen the changes these laws have made to my clients every day of the past 36 years. these laws have enabled me too fight for their enjoyment of a fair state and american project. i stand before a group of 100 united states senators who have chosen to serveve your country from all corners of the great nation giving up all sorts of professions, time with family and perhaps more lucrative opportunities to serve your country. mr. president, you are a man who so honorably serve the nation and the senate and in public service before your tenure. it is an honor to appear in this historic hall of democracy, yet today that honor is tempered by an overriding feeling of grave concern. grave concern for the danger to
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the institution of theer presidency i that i believe even convening these proceedings indicate, the joy believed i would feel if i ever had the great privilege of appearing before this body is replaced by sadness and pain. my overriding emotion is frankly wanting to cry for what i believe these proceedings will do to our great so long enduring sacred constitution and to the american people on both sides of the great divide and now characterize our nation. as deemed to members of the senate, going forward with this impeachment trial of a former president of the united states is unconstitutional for reasons we have set out in our brief. some of which we will focus on and as a matter of policy it is wrong, as wrong can be for all of us as a nation. we are told by those who favor having these proceedings that we have to do it for
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accountability, but anyone truly interested in real accountability for what happened at the capital on july january 6 would insist on waiting for a full investigation to w be completed indeed one is underway in earnest already and to get to the bottom of what happened, anyone interested in ensuring its the one or ones responsible for whom accountability is sought would more than willingly wait for the actual evidence especially when new evidence coming in every day about preplanning about those who are involved in about their agenda very no relationship to the claims made here. they say you need this trial before the nation can heal in the nation cannot heal withoutat it. i say our nation cannot possibly heal with it. with this trial you are open a bigger wounds for great and many
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americans see this process for exactly for what it is. a chance by a group of partisan politicians seeking to eliminate donald trump from the american political scene and seeking to disenfranchise 74 million plus american voters and those who dare to share their political beliefs and visions of america. they hated the results of the 2016 election and want to use this impeachment process to further their political agenda. these elitist have mock them for four years they call their fellow americans who believe in their country on their constitution deplorable in the latest talk is that they need to deprogram those who support donald trump in the grand old party. but at the end of the day this is not just about donald trump or any individual, this is about our constitution and abusing the impeachment power for political
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gain they tell us that we have to have this impeachment trial such as it is to bring about unity but they don't want unity. in the so-called trial will tear the country in half leaving tens of millions and americans feeling left out of theef natios agenda and one political party the hopes of power in the white house international legislature. they are proud americans, they never quit getting backup when they're down and they don't take dictates from another party. based on partisan for seating, this travel to the country apart perhaps like we've only see once before in our history. and hope the nation heals, the house managers in their wisdom have hired a movie company in a large law firm to create manufacture in a package designed by experts to chill and
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horrify you and your fellow americans they want to take you through a 16 hour presentation over today's focusing if it's a bloodsport and to what and, for healing, unity, accountability, not for any of those. for surely there are much better ways to achieve each it is for. , raw, misguided partisanship to make them believe playing to our worst instincts somehow is good. they don't need to show you movies that the right happened here, we will stipulate that it happened and you know all about it. this is a process fueled irresponsibly by base hatred by these house members and those who gave them their charge and willing to sacrifice our national character to advance their hatred and fear that one day they might not be the party
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in power. they have a different view of democracy and freedom from justice jackson's who once wrote the freedom to differ is not limited to things that do not matter much. that would be a shadow of freedom the test of its substance is the right to differ as the things it touches the heart of the existing order live a very different view of democracy and freedom. this is nothing less than the political weaponization of the impeachment process. , raw, fueled by the misguided idea of partyd over country when both will fit under truly suffer. i promise you if these proceedings go forward everyone will look bad you will see and hear many members of our congress saying and doing things they will surely regret but perhaps far more worse then a
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personal shame in a world in which history passes from our memories in a moment our great country a model for all the world will be far more divided and are standing around the world will be badly broken. our arch enemy to pray each and every day from her downfall will watch with glee, glowing in the moment as they see you at your worst and our country and internal divide let's be perfectly clear, if you vote to proceed with this impeachment trial future senators will recognize that you bought into a radical constitutional theory that departs clearly from the language of the constitution itself and holds and this is in their brief, the any civil officer who ever dares to want to serve his or her country must know that they will be subject to impeachment long after their service in office has ended subject only to the political and cultural landscape of the
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day it is in operation any future time. this is the taken from page 65 of their brief, unprecedented, radical position. imagine the potential consequences and in the view of the future congress i would one day be deemed to be impeachment worthy, your imagination is the only limitation. the house managers tell you a correct reading of the impeachment power under the constitution as it has no temporal limit enter reach back in time without limitation to target anyone who dares to serve our nation as a civil officer. add that to their demand that your members put your imprimatur on the snap impeachment they returned in this case and to do it again in the future if you
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endorse it by going forward with this impeachment trial. this is an untenable combination that literally puts the institution of the presidency directlyre at risk, nothing less and it does much more. under their unsupportable constitutional theory and tortured reading of the text every civil officer whoev has served is at risk of impeachment if any given group elected to the house decides what was thought to be an important service of the country whenn thy served now deserves to be canceled. they have made clear and public statements what they want to accomplish in the name of the constitution is to bar donald trump from ever running from political office again but this is an affront to the constitution no matter who they target today, it means nothing less of the denial of the right to vote in the independent right
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for a candidate to run for elected political office guaranteed by the first and 14th amendment to the united states constitution under the guise of impeachment of a tool to disenfranchise, perhaps my friend put the situation simply and sharply into focus last week on his radio show, my friend is a distinguished lawyer who serves as an abbasid or present obama and his friends among you he describedsi themselves to listeners as a lifelong democrat. but he said the idea of 100 people in these circumstances deciding that tens of millions of i american voters cannot cast their vote for the candidate for president ever again is unthinkable. and it truly should be. i will discuss today several reasons this matter should not and must not proceed why the senate lacks jurisdiction to conduct the trial of a former president, president no longer an office in our private citizen and any single reason in our
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memorandum is discussed today suffices. i want to start with a discussion of the fundamental due process lacking from thehe start. and it would last through the end of this goes for t words because if this is your retrievable he flawed process and its product a dangerous snap impeachment that brings us here and threatens to send a message into the future that we will all regret forever and that stains his body up too now our founding fathers believed was uniquely suited for the difficult task conducting an impeachment trial as mr. hamilton wrote in federalist 65. i make no apology in the demand enter name of the constitution that the rights to due process guaranteed under the constitution are adhered to in a process as serious as this international lives, the denial of due process in this case
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starts with the house of representatives. in this unprecedented snap impeachment process the house of representatives denied every attribute of a fundamental concept to shuttle due process that americans have come to believe as part of what makes a country so great how and why did that happen. it is a function of the lost for impeachment in the house for the past four years, considerco thi. >> i want to say this for donald trump who i may well be voting to impeach. >> donald trump is done a number of things which is legitimately raises the question of impeachment. >> i don't respect this president and i will fight every day until he is impeached. >> we can start impeachment proceedings and those are to start impeachment proceedings, i think that is grounds to start impeachment proceedings. >> i write today mr. speaker to call from the impeachment of the president of the united states
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of america, i continued to say impeach him, impeach 45, impeach 45 sewer calling upon the house to begin impeachment hearings immediately on the impeachment of donald trump. >> i would vote yes. >> were gonna go in there and impeach the [bleep] >> i introduced articles of impeachment of july i of 2017, e don't impeach as president, he will get reelected and also the deeper impeachment have an impeachment hearing. >> representatives against this president. >> it is time that they impeach the charges against him, bringing impeachment charges. >> my personal view is that he deserves impeachment. >> were here at an impeachment rally and were ready to impeach. [cheering]
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>> the relevant time in the house reveals the judgment. on the day following the januare leadership since the political opportunity to score points of the outgoing then president trump and the speaker demanded that vice president pence invoke the 20 for the moment for an immediate impeachmentnt of the president as mr. pence did not extraordinaryis and extraordinarily wrong demand. four days later on january 11, 2021 the article of impeachment was introduced in the house speaker pelosi gave vice president another ultimatum threatening to begin impeachment proceedings within 24 hours if you did notrs comply. vice president pence rejected speaker pelosi's demand favoring instead adherence to the constitution in the best interest of the nation over politically motivated threat on january 12 speaker pelosi announced to the nine impeachment managers would be
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and on generate 132021 days after holding a press conference to announce the launching of an inquiry the house adopted the article of impeachment. completing the fastest impeachment inquiry and history and according to president trump no due process at all. over strong opposition based in large part on the complete lack of due process to say there was a rush to judgment by the house it would be a grave understatement. it's not as this they voted to impeach were not whereby the dangers of the institution of the presidency and of system of due process, they were warned in the strongest of terms within their own ranks. adamantly, clearly and no uncertain terms not to take the dangerous snap impeachment course. those warnings were framed in the context of the constitution of due process that was denied here consider the warning given by the house proceedings pleading for the other members to record this decision due process of the constitution demands. this is representative:
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oklahoma. with only one week to go in his term the majority is asking us to consider a resolution impeaching president trump and they do so knowing full well that if the house passes a resolution the senate will not be able to begin considering these charges until after president trump's term ends i can think of no action the house can take that is more likely to further divide the american people than the action we are complicating the day, emotions are clearly running high and political divisions have never been more apparent in my lifetime. representative cole said, his words on the floor emphasizing the care that must be taken with respect to the consideration of articles off impeachment, echoed the concerns by our founding fathers by the subject. listen to this from mr. hamilton in federalist number 65. a well constituted court for the trial of impeachment is an object not to be desired to be difficult to be obtained in a government holy elective, the prosecution for this reason will
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sell the entrance all them failed to agitate the passions of the whole community and divide into parties more or less friendly or a minimal global to the accused. in many cases it will connect itself with pre-existing factions and will enlist all off the animosity, partiality, influence and interest on one side or the other. in such cases there always be a great danger that the decision thehe comparative strength parties of innocence or guilt. thinking by mr. hamilton as we see often. what i say is the proof of the need for due process based on the critically serious nature of the singular role impeachment process has inner government mre consideration of impeachment of these terms the delicacy and tho magnitude of a trust which so deeply concerns a political reputation and existence of every man engaged in the
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administration of public affairs speak for themselves. this two and federalist 65, now back to the house and the t warnings against the rest judgment in this case. mr. cole of oklahoma in the name of healing of path forward people desperately need he warned that the house is moving forward erratically with a truncated process that does not comport with the modern practice and will give members no time to contemplate for a serious nature of action before us. mr. cole emphasized to his colleagues that such care must be taken with the consideration of an article of impeachment, in order to ensure that the american people have confidence in the procedures the houses following and because the presidency itself demands due process in the impeachment proceedings. congressman cole continued, unfortunately the majority has chosen to reach to the floor t with the new article of impeachment for going to any investigation, any committee
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process or any chance for members to fully contemplate this course of action before proceeding. mr. cole complained the majority is failing to provide the house with an opportunity to review all the facts which are still coming to light to discuss all the evidence to listen to scholars to examine the witnesses and to consider precedence. he noted further, this is not the type of robust process, we have followed for every modern impeachment and the failure to do so does a great disservice to this institution and to this country mr. cole said. mr. cole complained on the house floor that rather than following theri appropriate processes he said the house has used in every modern impeachment the majority is rushing to the floor tripping all over themselves in the rush to impeach the president a second time and then mr. cole's words it was doing so to settle
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scores. and he warned this impeachment approach would cause a great division as a work ahead to a new administration. he said to them in a matter as grave inconsequential as impeachment shouldn't we follow the same process we have used in every modern impeachment rather than rushing to the floor and he implored them on behalf of generations of americans to come we need to think more clearly about the consequences of her action today and mr. cole reached across the aisle and credited a member, senator mansion, without having voice of similar sentiments and how ill advised this rush process was suggesting the underlying events were a matter for thehe judicial system to investigate not one for a rushed political process. finally mr. cole admonished his
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fellow house members telling them we need to recognize that we are following a flawed process. the alarm mr. cole sounded went unheeded. now let's considerde the process in the house that actually was due, the house men enter managers of certain miranda that it serves as a grand jury and prosecutor under the constitution. they told you thatnd again today if this is accurate then they highlight the complete failure to adhere to due process. one should not diminish the significance ofotgn impeachment legal aspects particulate as they relate to the formalities of the committal t justice procs it is a hybrid of the political and legal, political process moderated by legal formalities this is a quote from richard. the six the memo to the united states constitution provides inp relevant part that no person should be deprived of life, liberty or property without due process of supreme court long ago
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recognized in matthew versus eldridge due process is about what we all want, but we all have the right to demand fundamental fairness. one scholar wrote that the impeachment process should and does include some of the basic safeguards for the accused that are observed in a criminal process such as fairness, due process, presumption of innocence and proportionality. basic american values. and of course we know the supreme court is recognizing the due process protection while congress is empowered to make its own rules and proceeding itk may not make rules or ignore constitutional restraints or violate fundamental rights. what does due process look like in impeachment hearings, in the nixon case walter not richard,
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there's a great leeway afforded congress with respect to impeachment rules. it is clear the fundamentalng principles underlie our understanding of what due process should always look like apply. in hastings versus the united states d.c. court case vacate on different grounds, they address the matter, clearly concluding due process to impeachment proceedings and it imposes an independent constitutional constraint on how the senate exercises its sole power to try all impeachment under article one section three clause six. the court wrote in hastings impeachment is an extraordinary remedy as an essential element of a constitutional system of checks and balances impeachment must be invoked and carried out with solemn respect and scrupulous attention to fairness. fairness and due process must be the watch board where a branch of the united states government conducts a trial whether be a criminal case, civil case or a case of impeachment.
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in 1974 department of justice memo suggested thehe same view opining that whether or not capable of judicial enforcement due process standards seem to be relevant to the manner of conducting an impeachment proceeding. omore specifically the hastings court described it one of the key principles that lies at the heart of our constitutional democracy, again, fairness. the supreme court precedents established a general rule that individuals must receive notice and opportunity to bee heard before the government deprives them of a constitutionally protected interest and also true that in any proceeding that may lead to deprivation of a protected interest and requires fairve procedures, commensurate with the interest at stake. impeachment proceedings plainly involve deprivations of property and liberty interest protected by the due process clause in the house surely seeks district
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eldonald trump of his most highy terrorist r constitutional righs including the right to be eligible to hold public office again should he so choose. due process must apply in a minimum due process of the impeachment process must include that the evidence must be disclosed to the accused and the accused must be permitted in an opportunity to test and confront the evidence. particular through the right to confront and cross-examine witnesses which is long been recognized as essential to due process. in a most every setting important decisions turn on questions of fact due process requires an opportunity to confront and cross-examine. it's unfathomable that the framers steeped in the history of jurist prudence would create a system that would allow the chief executive and commander-in-chief of the armed forces to be impeached based on a process to develop evidence without providing any of the
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elementary procedures that the common law developeded over centuries for ensuring the proper testing of evidence in the adversarial process we would never count such a system in this country. current members of the house and senate leadership on themselves record confirming these procedural due process requirements, congressman nadler is on record asserting that the context of a house impeachment investigation, due process includes the right to be informed of the charges against you to call your own witnesses and to have thee assistance of counsel then president trump was not given any semblance of the due process congressman nadler clearly believes he deserves based on the congressman subscription of due process that must be afforded to an accused in impeachment proceeding as reflected in the statement that he made relating to another impeachment in 1998.
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no reason was found for the apparent change in the congressman's point of view. with respect to the two objects of the impeachment at issue. the fundamental attributes of due process have been honored as required parts of modern impeachment, protocols in 1870, is not fiercely debatable nor should it be by any american legislator. in spite of all this the house leadership despite all the norms and defined then president the basic and constitutional protective rights for then-president donald trump theu house impeachment procedure like a semblance of due process or whatever i simply cannot be credibly argued tono the country and we do not make special rules for different targets. it is a very integrity of the institution that suffers when we do and that's what the house leadership knowingly has caused, a review of the house records review that he streamline the impeachment process, 24 to go straight to the floor for a two hour debate and a vote without
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ability of amendments the house record reflects no committee hearing, no witnesses in the presentation of a cross eaexamination of evidence for te accused to respond or have counselse present to object as e new york times recently reported there were no witness interviews, no hearings, no committee debates and no real additional fact-finding. house managers claimed the need for impeachment was so urgent that they had to rush the proceeding when no time to spare for a more thoroughsp investigation. or really any investigation at all. but that claim is delayed by what happened or did not happen next. the house leadership unilaterally waited another 12 days to deliver the article to trialnate to begin the process in other words the house leadership spent more time holding the adopted article than it did on p the whole process leading up to the adoption of the article. that intentional delay designed to avoid having the trial began while mr. trump was still
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president led to yet another egregious denial of due process. excuse me. article one section three of clause six of our constitution of course provides important part that the senate shall have the sole power to try all impeachment when sitting for the purpose they shall be on oath or affirmation and when the president of the united states is tried the chief justice shall preside. by intentionally waiting until president trump term of office expires before delivering the articles of impeachment to the senate to initiate trial proceedings speaker pelosi to pride then president trump of the express constitutional right in the right under the senate's own role for to have the chief justice of the united states preside over his trial and wheeled the considerable power provided for in the rules of procedure and practice in the senate when sitting on impeachment trials.
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that power includes underworld five the presiding office exclusive right to make initial rule seven toer make evidentiary order subject by the senate we say respectfully this intentional delay by speaker pelosi such that in the intervening period president trump became private citizen to mr. trump constitute a lapse or waiver of jurisdiction for mr. trump no ,longer is the president described as subject to impeachment of article one section three clause six and in article two section four. this body therefore has no jurisdiction as a function of the additional process violation speaker pelosi. moreover with all due respect then president trump suffered a ettangible detriment from speakr pelosi's action violates the rights of due process of lawot t also his express constitutional right to have the chief justice preside.
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that tangible detriment includes a loss of the right to a conflict free and partial presiding officer with all due respect, the very purpose behind requiring the chief justice to preside over the president impeachment trial along with the other benefits of having two branches combined chief justice and the judiciary and the senate for the impeachment trial of the president reflected in federalist 66. one of the reasons the chief justice was chosen for that task. mr. trump faces a situation in which the presiding officer will serve as both judge with all the powers the rules and doubt him with and adjure with the boat. beyond that the presiding officer although enjoying a lifelong honorable reputation of course has been mr. trump's vocal and adamant opponent throughout the trip of administration and in fact the very matter on trial the presiding officer respectfully already has publicly announced p his sixth view before hearing any argument or evidence that
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mr. trump must be convicted on the articles of impeachment before the senate and indeed members of both parties have an obligation to vote to convict as well. nowhere in the great country with any american and certainly not dishonorable providing re-signing officer consider the scenario to be consistent with any stretch of the american concept of due process and a fair trial. s and certainly not even the appearance of either. by no stretch of the imagination can anyny fair-minded american e confident that a trial so conducted would or could be the fair trial promised by the leader. while most procedural aspects of the senate impeachment trial with political questions, this is not an excuse to ignore what law and presidentst clearly require, the present situation presents a violation of the constitutional text found in the articles mentioned above that require the chief justice to
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preside when the president is on trial or it's a clear denial of due process and fair trial for private citizen trump to face an impeachment trial so conducted by the senate. the impeachment article should be treated as a nullity and dismissed based on the total lack of due processss in the hoe it shouldho be dismissed because of speaker pelosi's intentionaln abandonment or waiver of jurisdiction at the house ever acquired jurisdiction in the article should be dismissed because a trial in the senate and the private citizen is not permitted. let alone with the conflict just described that attend this proceeding. finally on the subject of due process in this matter i see the following. this is our nation's sacred constitution. it served well since it's been
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written through careful process it's been a document unique in all i the world, is a foundatiol part of what makes the united states a beacon of light among the other nations of the world. and not only has room for tremendous variety of perspectives on the philosophical and political direction our country should take it encourages the advocacy of our e differences. the long health and well-being and the insistence on due process for every citizen for the right to due process long ago was recognized as the life breath. the primary guarantor of its eternal viability of our political, civic and national guiding light, we all well know that there's many systems around the world that do not offer
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every semblance of the safeguard our constitutional concept of 200 due process provides. some of us have chosen their own handbooks on penalty of guest, this is one of d them. there can be no room for due process and such a system of this or the system would be i lost. snap decisions are required in a system like this to maintain power for one political philosophy over all others in those kinds of systems. but we as a nation have rejected the systems and the snap decisions they demand to maintain control for one party for one pointol of view and foro imposed way of life, we chose to live freelyll under constitution that guarantees our freedom. other country fears those freedom and seek to ensure adherence to a party line and all civic, political, spiritual and other affairs and to ensure that the party line is towed in those systems have no place for due process. snap decisions to remove
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political figures of the norm detaining there systems depend on it. that's not our way in america never mustne be. we choose a merit to the buyer constitution and its amendments of the due process is document demand for every citizen among us. by putting on the snap judgment made in this matter to impeach the president of the united states without any semblance of due process at every step along the way puts the office of the president of the united states at risk every single day, it is far too dangerous a proposition in a must reject by sending the message now that this proceeding lacking due process from start to finish must in now with your vote to elect jurisdiction to conduct an impeachment trial for former president whose term in office has expired and now a private citizen.
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one reason you must send this message here now is a complete lack of due process that brought this article of impeachment before this body, god forbid we should ever lower our vigilance tour the principal of due proce, and impeachment trial of a private citizen held before the senate will be nothing more or less in a trial of a private citizen by aia legislative body and impeachment trial by the senate of a private citizen violates article one, section nine, the united states constitution which provides no bill of attainder should be passed. the bill of attainder in this clause is known prohibits congress from enacting a law that legislative determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of the judicial f trial. a bill of attainder is a legislative act which inflicts punishment without a judicial
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trial, a judicial trial. the distinguishing characteristic of a bill of attainder is the substitution of a legislative determination of guilt and legislative imposition ofct punishment for judicial finding and sentence. the bill of attainder clause and the doctrine generally leave fox the concern that trial by a legislature lacks the safeguards necessary to prevent the abuse of power as a supreme court explained in the united states versus brown the best available evidence from the architects of our constitutional system indicates the bill of attainder not a narrow, technical and therefore seem to be position but rather an implementation of the separation of power in general safeguard against o legislative exercise of the judicial function. more simply trial by
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legislature, the bill of attainder reflected the femurs believe that the legislative branch is not so well suited has politically independent judges and juries. when the senate undertakes an impeachment trial of aer private citizen as it clearly understands to be the case here supported by the facts of the chief justice not providing in mr. trump is not the president it is acting as a judge and jury rather than a legislative body. this is exactly the situation that the bill of attainder constitutional provision was meant to preclude. it is clear the disqualification from holding future office and the house managers intend to seek cure is a kind of punishment like a banishment and others that is subject tohe the constitutional prohibition against the bill of attainder. under which general designation bills of pains and penalties are included. they cases include the brown
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case. instructor provisions that concluded support of the south or communism from holding certain jobs and being in violation of this prohibition. thus the impeachment of a private citizen in order to qualify them from holding office is unconstitutional act constituting the bill of attainder, moreover this is the exact type of situation in which the fear would be great that some members of the senate might be susceptible to acting in the house acted in when it rushed to the articles of impeachment in less than 48 hours. acting hastily simply to appease the popular clamor of their political base the very kind of concern expressed by mr. hamilton and federal 65, moreover as chief justice marchal warned it is not to be disguised that the framers of the constitution viewed with some apprehension the violent acts which might grow out of the feelings of the moment and the
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people of the united states have manifested a determination to shield themselves and their property from the effects of the sudden and strong passions to which men and women are exposed. the restrictions on the legislative power of the state are obviously founded in the sentiment in the constitution of the united states contains what may be deemed a bill of rights for the people of each state, most states shall pass any bill of a tender in this form the power of the legislature over the lives or fortunes of individuals has expressed to be restrained. let's turn to the text of thehe constitution . .st . turning to the text of the constitution, the most appropriate and important starting place, constitution based question. there are passages of the u.s.
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the federal impeachment process. let's turn to a reading of the text now. a textual analysis always begins with the words of the text and to the legislative history or history itself if the meaning of the text is not plain. as theas supreme court emphasizd the statutory interpretation as we always say begins with a text and interpreting the text we are exguided by the principle that e constitution was written to be understood by the voters. its wordsor and phrases were usd in the ordinary as distinguished from technical meaning. we must enforce plain and unambiguous statutory language according to its terms. if the president is impeached the text of the constitution commands that the chief justice of the united states shall preside as we discussed earlier. disinterested in nonpartisan his presence brings dignity to such a proceeding. in this case, the chief justice
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is not residing and the conflict of interest wouldn't necessarily arise as a substitute for the vice president. the appearance of the conflict of interest and the conflict of interest and pre- judgment as we've discussed. in this case, as we say the chief justice i is not presidin. the senate pro tem is presiding. it appears that in the leaders view undoubtedly joined by other senators it is permitted by the constitution because the subjece of the trial is a nonresident. as such, it is conceded as it must be that the constitutional purposes of the trial be accused as a non- president. the role of the senate to though is to decide whether or not to convict and thereby trigger the application of article two, section four. the president, vice president and all civil offices of the united states shall be removed from office on impeachment for, conviction of, treason, bribery or other high crimes and misdemeanors, for which office
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shall in on the president be removed if convicted? a non- president doesn't hold in office, therefore cannot be impeached under this clause that provides for the removalm of office under the impeachment. the house managers contend that the fact that the chief justice is not providing doesn't impact the constitutional validity of the trial. notably they devote a single paragraph for the memorandum to develop so significant that it prompted multiple senators to declare the entire proceeding suspect with one going so far to say that it crystallized the unconstitutional nature of the proceeding. and the single paragraph of the house managers devoted to the issue is entirely unpersuasive on the merits. the position in the traditional statutory interpretation is well established that a term as a matter of statutory interpretation a term appearing in several places in the statutory text is generally red
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in the same way each time it appears. this presumption is at its most vigorous where the term is repeated in a given sentence. additionally, in at least one instance the court referred to a broader established that a similar language contained within the section of the statute to be afforded a consistent meaning. i know this is a lot to listen to at once but words are what make the constitution frankly, and the interpretation that the constitution as you well know a product k of words. if the text, the president of the united states and the constitutional provision requiring the chief justice to preside can refer only to the sitting president and not the former presidents, the textual identification of the president contained in section four which makes the president amenable to impeachment in the first place also excludes anyone other than the sitting president. in full the sentence provides
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that the president, vice president and also the law offices of the united states shall be removed from office on impeachment for and conviction of treason, bribery or other high crimes and misdemeanors. the power in the senate contains a clear jurisdictionalr limitation. the house managers understand what the word president means for the purpose of other constitutional and the united states and the constitution. only a sitting president may be impeached, convicted and removed upon a trial in the senate. the president in article two, section four, the president in article one, section three identified the same. if the accused is not a president in one, he is not the president in the other. no sound, textual interpretation, and i emphasize
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textual. no sound, textual interpretation permits the contrary reading in the words of the supreme court it is a normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning. unwittingly or unwillingly as it may be, senate democrats and their announcement to senator leahy's presiding have already taken their position on the matter. the accused is not the president. the text of the constitution therefore does not have the power to try him and remove him. you can't be removed from something or disqualified, a legal nullity as if he were the president. house managers contend the jurisdiction over the impeachment because despite the fact that he's no longer the president, the conduct of the former president as charged occurred while he was still in office. that argument is not in any way alter the constitution's textual identification of c the preside. house managers justify their
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strained argument by noting thai the constitutions impeachment provisions are properly understood by reference to this overarching constitutional plan. with that justification in mind the argument failed once again. in the end impeachment it is the accused office that permits the impeachment. ceasing to hold that office terminates the possibility and the purpose of impeachment. private persons may not be impeached in america, and so they ask you to look back at the british model. the constitution as i say doesn't make private citizens subject to impeachment. the founders rejected the british model that allowed parliament to impeach anyone except for the king and so they limited in impeachment to certain public officials including presidents in the country. next on the textual front. the only requirement is removal. article two, section four straightforward rule. whenever a civil officer is
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impeached and convicted for high crimes and misdemeanors, they shall be removed. it is undeniable that in this instance it is moved in every possible regard. removal is a factual and legal impossibility, yet the article of impeachment itself in the clause it calls for removal. this is one reason why in impeachments are d different thn other trials and the constitution separates the two. in ordinary criminal jurisprudence, a person convicted of public crimes while he or she was in office may still be punished even though they no longer hold that office. not so with impeachment. in the senate impeachment trial, conviction means and requires removal. conviction without a removal is no conviction at all. only upon a valid conviction and as a requisite, and forcible removal may the additional judgment of disqualification plausibly be entertained. presidents are impeachable because presidents are
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removable. former presidents are not, because they cannot be removed. the constitution is clear. trial by the senate sitting in the court of s impeachment is reserved forhe the president of the united states, not a private citizen or someone that used to be president. just as clear, the judgment required upon conviction's removal from office and a former president can no longer be removed from office. the purpose, text and structure of the constitutional impeachment clauses confirmed this intuitive and common sense understanding, so wrote the judge, former judge in the united states court of appeals for the fourth circuit. and indeed, there are state court decisions that analyze this very same language and conclude impeachment can only be entertained against an existing officer subjectub to removal. state versus hill from nebraska and smith versus brantley, 1981
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decision from the supreme court. this is the first time the senate has ever been asked to apply the constitution's textual identification of the president to anyone other than the sitting president of the united states. and of course most significantly from thiss approach, the terms specifically used is the president, not a president and there can be only one president. the incumbent at a time. the judge relies on this textual reading for his firm conclusion that the former president cannot be impeached or convicted. consider the alternative as robert delahanty, professor john administer trump can be convicted as the president, the language the constitution uses, then why is he not still the president under the commander-in-chief clause, for example. they are joined by the professor alan dershowitz and university of chicago professor richard epstein and the focus and
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conclusion. they point out the dangers that deviates from the focus onhe the text for there is no temporal limitation that's what they suggested to you. remember you can go back in time and impeach any civil officer who served for anything that occurred during the course ofve their service. the concept necessarily includes all former executive officers and judges including the impeachment now of jimmy carter for hisud handling of the hostae scandal as one example. that is logically from the argument without any hesitation. further they ask why not then count as a broad reading of other terms. why not and count the other terms such as high crimes and misdemeanors however broadly construed or intended to be exclusively the only conduct intended. they conclude by writing a non-
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textual impeachment would undermine the constitution's effort to make the president independent of congress the goal of the founding fathers. they convincingly argue for the textual analysis over non- textual analysis and reliance on the presentation of history suggesting ones presentation of history controlled would expressly permit conduct contrary to the language leading to the clearly unintended results. i must tell you i've spoken to the judge at some length over the past week about this. this approach is something that he also feels very strongly about. i also have been to be friendly with chuck cooper who happens to be a person that has a strong animus towards president trump. but he is a fine lawyer and a fine person as i'm sure our friends from alabama no. as we have already discussed the risks to the institution of the presidency and any and all past
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offices is limited only by one's imagination. the weakness of the house managers case is demonstrated by the reliance on the unproven assertion that if president trump is not impeached, future officers that are will be resigning either before impeachment or senate trial for example they come to in deciding the professors, quote, any official who was impeached could avoid accountability simply by resigning one minute beforeou te sentence final conviction. this argument is complete, hard. the constitution expressly provides article one, section three, clause number seven, a convicted party following the impeachment shall nevertheless be liable and subject to indictment, trial, judgment and punishment according to law after removal. clearly a former civil officer who is not impeached is subject to the same.
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we have a judicial process in this country. we have an investigative process in this country to which no formerer officeholder is immune. that is the process that should be running its course and the appropriate one for investigation prosecution and punishment. we are missing it by two articles. we provide that appropriate and adjudication. that is accountability. appropriate mechanisms in place with meaningful accountability not through the legislature which does not and cannot offer the safeguards of the system which every private citizen is entitled. but more to the point here, the argument does nothing to empower a different reason of the text that is one that reads the president in one provision to
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include r former but reads the president and the other to read only the sitting president. second it also fails because the former president did not resign even amid the calls that he do so. the senate need not decide whether the positions of power or jurisdiction to try and convict a former president that resigned or how it might best precede inoc such a case. that is not this case. the plain meaning of the text consistently applied should govern whether the united states senate with the power to convict a private citizen of the united states. it is not. the house managers in the trial memorandum despite the fact the primary and only necessary remedy is a legal nullity and is appropriate because the other secondary that the senate is not
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required to consider and only takes effect upon a leader separate vote disqualification from future office can still theoretically be applied to the former president. the managers contend article two, section four states a straightforward rule whenever they are convicted for high crimes and misdemeanors they shalll be removed. absolutely nothing about this and still face qualification are immune from impeachment and conviction. that's what they say in other words, so the argument goes a president no longer holding office does not moved the entire impeachment, this however also lies in the face of both the plain meaning of the text and the statutory interpretation. even in the passage the managers site, the word shall does to put it mildly imply a requirement.
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in. if such that in an impeachment which removal would be impossible is invalid. shall means shall. the supreme court has made clear when the statute uses the word shall, congress is imposed in mandatory duty upon the subject of the command as in shall remove. indeed the mandatory shall creates an obligation impervious to the judicial discretion. and wherever the constitution commands, discretion terminates. shall means mandatory and shall besh removed is not possible foa former officer no longer in office. impeachment cannot apply. here's the and the argument that you may have read about if you follow such things. this is another one among many of the textual scholars. managers critically ignore this clause sevene which states judgment in cases of impeachment shall not extend further than to
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the removal for office and disqualification, sorry, from office and disqualification to hold and enjoy any office of honor, trust or profit under the united states. ordinarily as an everyday english, the use of the conjunctive and in a list means all of the listed requirements must be satisfied. while use means only one of the listed requirements needs to be satisfied. the judge kenneth starr subscribes to this argument and understands the comment to provide for the support for the reading. judge michael again recently argued the constitutional links the disqualification from a future office with a remedy of removal fromal the office that person currently occupies. the former remedy does not apply in situations where the latter is unavailable. conviction in inextricably intertwined is the removal is no longer possible neither is the impeachment conviction.
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with that of joseph story and the famous commentaries on the constitution analyze the impeachment applicable to the position because removal a primary remedy with of the theimpeachment authorized is no longer necessary. justice story noted he isn't coming to a firm deposit on this. this is his believe and thought process. there is also a remark that the impeachment is a proceeding purely of a political nature. it's not so much designed to punish an offender but the misdemeanors it touches neither the persons or the property but simply divest some of his political capacity. professor philip i have to say now weird earlier today we don't cite any scholars. professor philip is a distinguished professor at columbia university who along
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with professor charles black wrote the handbook on impeachment used for many years. he is a constitutional expert on impeachment. he's written that there is little discussion and historical record surrounding the question of whether a person no longer a civil officer can be impeached and in light of the clarity of the text this is hardly surprising, professor bobbitt wrote. by the way, he has a rich family history and the democratic party and also asserted the following as recently as january 207th, 2021. arguing against holding this trial he said there is no authority granted to congress ts impeach and convict persons who are not civil officers of the united states. it's as simple as that but simplicityn does not mean unimportance, he wrote. limiting the congress to the specified powers is a crucial element in a central idea of the united states constitution putting the state under law.
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the professor and former stanford university law professor have remarked that impeachment's principal purpose as the 66th of the federalist makes clear is to check the executive, trial by jury, rules of evidence and other safeguards to put aside they write because of the need to protect the public from further abuse of office. similarly, yesterdayay the professor eugene wrote the stconstitution provides the impeachment process is to be used to remove all civil officers of the united states. that is people holding a government position, and in the case of mr. trump, the house is reading the constitution as if it says the process applies to all civil offices of the united states and people who are not civil officers but once were, exactly what it does not say. we've been told by the house
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managers about miss citations in the brief. i'd like to draw your attention to page 37.s this is a substantive misrepresentation i would respectfully suggest, and it shows a very different view of democracy, a fear of democracy. they wrote on page 37 of the brief that the framers, and i'm paraphrasing, the framers themselves would not have hesitated to convict on these facts. their view and this is a quote shaped by the classical history as well as the lived experience of resistance and resolution they were aware of the danger posed byos opportunists and the cited mobs for political gain. they drafted the m constitutiono avoid such which they associate with the threat of civil disorder and early assumption of power by a dictator. the citation is 178. the ideological origin of the american revolution.
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that is this book. the professor when he gave this description of the threat of civil disorder and the early assumption of power by a dictator was referring to early colonists view towards democracy. they feared democracy. because it is an elitist point of view. we don't fear democracy. weoc embrace it. in summing up, where we stand and why we are here. the singular goal of the house managers and leadership in pursuing the conviction of donald trump is to use these proceedings to disenfranchise at least 74 million americans with whom they viscerally disagree and to ensure neither they or any other american ever again can cast a vote for donald trump. if they convince you to go forward, the ultimate hope is that this will be a shot across the bow of any other candidate
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for public office who would dare to take up a political message that is very different from their own political point of view as the direction in which you wish to take our country. under our constitution, this body and the impeachment process must never be permitted to be weaponize to the partisan political purposes. this article must be dismissed for the lack of jurisdiction based on what we have discussed here today and what is in the brief. the institution is at risk unless a strong message is sent by the dismissal of the article of impeachment. before we close b i want to leae you with two thoughts. abraham lincoln comes to mind first because of the way the nation is divided. we must learn from his times. he had a simple but important message about the paramount importance of doing what is right. mr. lincoln said stay with anybody that stands right, stand with him when he is right and part with him when he goes wrong in both cases you are right. in both cases you opposed to dangerous extremes and in both cases you stand on moral ground and hold the ships level them
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study and both national and nothing less than national and the second message one of his favorite poets who wrote in 1849 times fraught with division and risk for even more. the message from the other time of division to call for help and unity to bring strength has special meaning today. longfellow wrote salesforce into the sea through wind and wave the moistened i are not the signs of doubt or fear, sail forth into the sea gentle loving trusting light and fate from all adversity upon the bosom of the sea i comings and goings for gentleness and love and trust prevail or angry wave and a guest and in the wreck of noble lives something immortal still survives. sale on union strong and great humanity with all its fears with
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all the hopes of the future years is hanging breath is on my fate we know what master levi kiel what steel make each mask and sail and rope and what would have us speed and what to forge and what a heat would shape the anchors of i hope you're not each sudden sound and shock of the wave and not the rock but by the flooding of the sale in spite of rock and tempt us roar despite the false lights on the shore, sale on not fear the rest of the sea, our hearts, our hopes are all with the. our hearts, our hopes and our prayers, our tears, our faith triumphant overr our fears are all with the.
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it's been a long day and we thank you and all the senators for their careful attention to the legal arguments and your courtesy to the managers and the lawyers. this has been the most bipartisanan impeachment and we hope it will continue to be so in the days ahead and nothing could be more bipartisan than
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the desire to recess so the only issue before the senate today of course is whether donald trump is subject to the court of impeachment the senate has convened we see no means to make a further argument that this body has the power to convict and to disqualify president trumpru for his breathtaking constitutional crimes of inciting a violent insurrection against ourg government. tomorrow we will address the amazing array of issues suggested by the thoughtful presentations of our colleagues including the first amendment, due process, partisanship under the constitution, the bill in the claws and many many more. but in the meantime, we will waive all further arguments, our 33 minutes of rebuttal and we give those gratefully back to
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the senate. >> all of the time has been yielded back. then theheth question is whether donald trump subject to the court of impeachment for acts committed while president of the s united states not withstand te expiration of his term in that office. >> is there a sufficient second? there is a sufficient second and the clerks will call the role. [roll call]
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>> on this vote the yeas are 56
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and the nays are 44. in pursuant to s rose 47, the senate having voted affirmative on the foregoing question, the senate shall proceed with s the trial as provided under the provisions of that resolution. >> mr. president, i ask unanimous consent of the trial adjourn until 12:00 noon tomorrow wednesday, february 10th, and that this order also constitute the adjournment of the senate. a. >> without objection, we shall stand in adjournment until noon tomorrow. following the closing of the senate, majority leader schumer spoke briefly about the days arguments.