Congressional Record

United States

of America

PROCEEDINGS AND DEBATES OF THE

117

CONGRESS, FIRST SESSION

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

S589

Vol. 167 WASHINGTON, TUESDAY, FEBRUARY 9, 2021 No. 24

House of Representatives

The House was not in session today. Its next meeting will be held on Thursday, February 11, 2021, at 9 a.m.

Senate

UESDAY

, F

EBRUARY

9, 2021

The Senate met at 1 p.m. and was

called to order by the President pro

tempore (Mr. L

EAHY

PRAYER

The Chaplain, Dr. Barry C. Black, of-

fered the following prayer:

Let us pray.

Eternal God, author of liberty, take

control of this impeachment trial.

Lord, permit the words of the New Eng-

land poet James Russell Lowell to pro-

vide our Senate jurors with just one

perspective. Lowell wrote:

Once to every man and nation comes the

moment to decide, In the strife of Truth with

Falsehood, for the good or evil side.

Mighty God, could it really be that

simple? Could it really be just truth

striving against falsehood and good

striving against evil?

Powerful Redeemer, have mercy on

our beloved land.

We pray in Your magnificent Name.

Amen.

PLEDGE OF ALLEGIANCE

The President pro tempore led the

Pledge of Allegiance, as follows:

I pledge allegiance to the Flag of the

United States of America, and to the Repub-

lic for which it stands, one nation under God,

indivisible, with liberty and justice for all.

CONCLUSION OF MORNING

BUSINESS

The PRESIDENT pro tempore. Morn-

ing business is closed.

TRIAL OF DONALD J. TRUMP,

PRESIDENT OF THE UNITED

STATES

The PRESIDENT pro tempore. The

Senate will convene as the Court of Im-

peachment.

The PRESIDENT pro tempore. I ask

Senators to be seated.

THE JOURNAL

If there is no objection, the Journal

of proceedings of the trial are approved

to date.

I ask the Sergeant at Arms to make

the proclamation.

The Acting Sergeant at Arms, Jen-

nifer A. Hemingway, made the procla-

mation as follows:

Hear ye! Hear ye! All persons are com-

manded to keep silence, on pain of imprison-

ment, while the Senate of the United States

is sitting for the trial of the Article of Im-

peachment exhibited by the House of Rep-

resentatives against Donald John Trump,

former President of the United States.

The PRESIDENT pro tempore. I note

the presence in the Senate Chamber of

the managers on the part of the House

of Representatives and counsel for the

former President of the United States.

RECOGNITION OF THE MAJORITY LEADER

The PRESIDENT pro tempore. The

Democratic leader is recognized.

PROVIDING FOR RELATED PROCEDURES CON

CERNING THE ARTICLE OF IMPEACHMENT

AGAINST DONALD JOHN TRUMP

FORMER

PRESIDENT OF THE UNITED STATES

Mr. SCHUMER. Mr. President, in a

moment, I will call up a resolution to

govern the structure of the second im-

peachment trial of Donald John

Trump.

It has been agreed to by the House

managers, the former President’s coun-

sel, and is cosponsored by the Repub-

lican leader. It is bipartisan.

It is our solemn constitutional duty

to conduct a fair and honest impeach-

ment trial on the charges against

former President Trump—the gravest

charges ever brought against a Presi-

dent of the United States in American

history.

This resolution provides for a fair

trial, and I urge the Senate to adopt it.

Mr. President, I send a resolution to

the desk on my behalf and that of the

Republican leader for the organizing of

the next phases of this trial.

The PRESIDENT pro tempore. The

clerk will report the resolution by

title.

The legislative clerk read as follows:

A resolution (S. Res. 47) to provide for re-

lated procedures concerning the article of

impeachment against Donald John Trump,

former President of the United States.

VOTE ON S

RES

The PRESIDENT pro tempore. The

question is on agreeing to the adoption

of the resolution.

Mr. SCHUMER. I ask for the yeas

and nays.

The PRESIDENT pro tempore. Is

there a sufficient second?

There appears to be a sufficient sec-

ond.

The clerk will call the roll.

The legislative clerk called the roll.

[Rollcall Vote No. 56]

YEAS—89

Baldwin

Barrasso

Bennet

Blackburn

Blumenthal

Blunt

Booker

Boozman

Braun

Brown

Burr

Cantwell

Capito

Cardin

Carper

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CONGRESSIONAL RECORD — SENATES590 February 9, 2021

Casey

Cassidy

Collins

Coons

Cornyn

Cortez Masto

Cotton

Cramer

Crapo

Daines

Duckworth

Durbin

Ernst

Feinstein

Fischer

Gillibrand

Graham

Grassley

Hassan

Heinrich

Hickenlooper

Hirono

Hoeven

Hyde-Smith

Inhofe

Kaine

Kelly

Kennedy

King

Klobuchar

Lankford

Leahy

Luja

Lummis

Manchin

Markey

McConnell

Menendez

Merkley

Moran

Murkowski

Murphy

Murray

Ossoff

Padilla

Peters

Portman

Reed

Risch

Romney

Rosen

Rounds

Sanders

Sasse

Schatz

Schumer

Shaheen

Shelby

Sinema

Smith

Stabenow

Sullivan

Tester

Thune

Tillis

Toomey

Van Hollen

Warner

Warnock

Warren

Whitehouse

Wicker

Wyden

Young

NAYS—11

Cruz

Hagerty

Hawley

Johnson

Lee

Marshall

Paul

Rubio

Scott (FL)

Scott (SC)

Tuberville

The PRESIDENT pro tempore. On

this vote, the yeas are 89, the nays are

11.

The resolution (S. Res. 47) was agreed

to.

(The resolution is printed in today’s

ECORD

under ‘‘Submitted Resolu-

tions.’’)

ORDER OF BUSINESS

The PRESIDENT pro tempore. Pur-

suant to the provisions of S. Res. 47,

there shall now be 4 hours of argument

by the parties, equally divided, on the

question of whether Donald John

Trump is subject to the jurisdiction of

a Court of Impeachment for acts com-

mitted while President of the United

States, notwithstanding the expiration

of his term in that office.

Mr. Manager R

ASKIN

, are you a pro-

ponent or an opponent of this question?

Mr. Manager RASKIN. I am a pro-

ponent.

The PRESIDENT pro tempore. Mr.

Castor, are you a proponent or an oppo-

nent of this question?

Mr. Counsel CASTOR. We are an op-

ponent.

The PRESIDENT pro tempore. Oppo-

nent, thank you.

Mr. Manager R

ASKIN

, your party may

proceed first. You will be able to re-

serve rebuttal time, if you wish.

Mr. R

ASKIN

, you are recognized.

MANAGERS

’

OPENING STATEMENTS

Mr. Manager RASKIN. Thank you

very much, Mr. President, distin-

guished Members of the Senate. Good

afternoon.

My name is J

AMIE

ASKIN

. It is my

honor to represent the people of Mary-

land’s Eighth Congressional District in

the House and also to serve as the lead

House manager.

And Mr. President, we will indeed re-

serve time for rebuttal. Thank you.

Because I have been a professor of

constitutional law for three decades, I

know there are a lot of people who are

dreading endless lectures about the

Federalist Papers. Please breathe easy,

OK. I remember well W.H. Audens’ line

that a professor is someone who speaks

while other people are sleeping.

You will not be hearing extended lec-

tures from me because our case is

based on cold, hard facts. It is all about

the facts.

President Trump has sent his lawyers

here today to try to stop the Senate

from hearing the facts of this case.

They want to call the trial over before

any evidence is even introduced.

Their argument is that if you com-

mit an impeachable offense in your

last few weeks in office, you do it with

constitutional impunity; you get away

with it. In other words, conduct that

would be a high crime and mis-

demeanor in your first year as Presi-

dent and your second year as President

and your third year as President and

for the vast majority of your fourth

year as President you can suddenly do

in your last few weeks in office without

facing any constitutional account-

ability at all.

This would create a brandnew Janu-

ary exception to the Constitution of

the United States of America—a Janu-

ary exception. And everyone can see

immediately why this is so dangerous.

It is an invitation to the President to

take his best shot at anything he may

want to do on his way out the door, in-

cluding using violent means to lock

that door, to hang on to the Oval Office

at all costs, and to block the peaceful

transfer of power.

In other words, the January excep-

tion is an invitation to our Founders’

worst nightmare. And if we buy this

radical argument that President

Trump’s lawyers advance, we risk al-

lowing January 6 to become our future.

And what will that mean for Amer-

ica? Think about it. What will the Jan-

uary exception mean to future genera-

tions if you grant it? I will show you.

(Video footage of 1–6–2021.)

Mr. TRUMP. We will stop the steal.

(Applause.)

Mr. TRUMP. Today I will lay out just

some of the evidence proving that we won

this election and we won it by a landslide.

This was not a close election. And after this,

we’re going to walk down—and I will be

there with you—we’re going to walk down—

we’re gonna walk down to the Capitol.

(People chanting: ‘‘Yeah. Let’s take the

Capitol.’’)

Unidentified Male. Take it.

Unidentified Male. Take the Capitol.

Unidentified Male. We are going to the

Capitol, where our problems are. It’s that di-

rection.

Unidentified Male. Everybody in. This way.

This way.

Mr. TRUMP. Tens of thousands of votes.

They came in in duffel bags. Where the hell

did they come from?

(People chanting: ‘‘USA.’’)

Sergeant at Arms: Madam Speaker, the

Vice President and the United States Senate.

(Applause.)

Unidentified Male. Off the sidewalk.

Unidentified Male. We outnumber you a

million to one out here, dude.

Unidentified Male. Take the building. Take

the building.

Unidentified Male. Let us in.

Unidentified Male. Fuck these pigs.

Unidentified Male. Join us.

Unidentified Male. Let us in.

Unidentified Male. That’s enough. There’s

much more coming.

Mr. TRUMP. The Constitution says you

have to protect our country and you have to

protect our Constitution. And you can’t vote

on fraud. And fraud breaks up everything,

doesn’t it? When you catch somebody in a

fraud, you’re allowed to go by very different

rules.

So I hope Mike has the courage to do what

he has to do.

Unidentified Male. Talking about you,

Pence.

Mr. TRUMP. When we fight, we fight like

hell. And if you don’t fight like hell, you’re

not going to have a country anymore.

Unidentified Male. Fuck DC police. Fuck

you.

Mr. TRUMP. So we are going to walk down

Pennsylvania Avenue. I love Pennsylvania

Avenue. And we are going to the Capitol, and

we are going to try and give our Repub-

licans—the weak ones because the strong

ones don’t need any of our help. We are going

to try and give them the kind of pride and

boldness that they need to take back our

country.

Unidentified Male. Get the fuck out of

here, you traitors.

The PRESIDING OFFICER. The majority

leader.

Mr. M

CONNELL. We are debating a step

that has never been taken in American his-

tory.

Unidentified Male. Fuck you, traitors.

Mr. M

CONNELL. President Trump claims

the election was stolen. The assertions range

from specific local allegations to constitu-

tional arguments to sweeping conspiracy

theories.

(People chanting: ‘‘USA.’’)

Mr. M

CONNELL. But my colleagues,

nothing before us proves illegality anywhere

near the massive scale—the massive scale—

that would have tipped the entire election.

Unidentified Female. Our house, our house,

our house, our house.

(People chanting: ‘‘Fight for Trump.’’)

Unidentified Male. Fuck you, police.

Unidentified Male. Let’s go. Let’s go.

Officer GOODMAN. Second floor.

Unidentified Male. You are gonna beat us

all? Are you gonna beat us all?

Mr. LANKFORD. My challenge today is

not about the good people of Arizona.

The PRESIDING pro tempore. The Senate

will stand in recess until the call of the

Chair.

Mr. LANKFORD. Thank you.

(People chanting: ‘‘Woot, woot.’’)

Mr. GOSAR. Madam—Mr. Speaker, can I

have order in the Chamber.

The SPEAKER pro tempore. The House

will be in order.

Unidentified Male. Go, go, go.

The SPEAKER pro tempore. The House

will be in order. OK.

(People chanting: ‘‘Stop the steal.’’)

(People chanting: ‘‘Traitor Pence.’’)

(People chanting: ‘‘Stop the steal.’’)

Unidentified Male. They are leaving. They

are leaving.

(People chanting: ‘‘Break it down.’’)

Unidentified Male. Get down. Let’s go.

Come on. Where the fuck are they?

(People chanting: ‘‘No Trump, no peace.’’)

Unidentified Male. Let’s go. We need fresh

patriots.

(People chanting: ‘‘Traitors.’’)

(People chanting: ‘‘Fight for Trump.’’)

Mr. TRUMP. There has never been a time

like this where such a thing happened, where

they could take it away from all of us—from

me, from you, from our country. This was a

fraudulent election, but we can’t play into

the hands of these people.

We have to have peace. So go home. We

love you. You’re very special. You’ve seen

what happens. You’ve seen the way others

are treated that are so bad and so evil.

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CONGRESSIONAL RECORD — SENATE S591 February 9, 2021

I know how you feel, but go home, and go

home in peace.

(Audience chants: ‘‘USA.’’)

Your lies in your own cities, your own

counties. Storm your own capitol buildings.

We take down every one of these

motherfuckers.

Hang them!

Mr. Manager RASKIN. Senators, the

President was impeached by the U.S.

House of Representatives on January

13 for doing that. You ask what a ‘‘high

crime and misdemeanor’’ is under our

Constitution. That is a high crime and

misdemeanor. If that is not an im-

peachable offense, then there is no such

thing. And if the President’s argu-

ments for a January exception are

upheld, then even if everyone agrees

that he is culpable for these events,

even if the evidence proves, as we think

it definitively does, that the President

incited a violent insurrection on the

day Congress met to finalize the Presi-

dential election, he would have you be-

lieve there is absolutely nothing the

Senate can do about it—no trial, no

facts. He wants you to decide that the

Senate is powerless at that point. That

can’t be right.

The transition of power is always the

most dangerous moment for democ-

racies. Every historian will tell you

that. We just saw it in the most aston-

ishing way. We lived through it. And

you know what? The Framers of our

Constitution knew it. That is why they

created a Constitution with an oath

written into it that binds the President

from his very first day in office until

his very last day in office and every

day in between.

Under that Constitution and under

that oath, the President of the United

States is forbidden to commit high

crimes and misdemeanors against the

people at any point that he is in office.

Indeed, that is one specific reason the

impeachment, conviction, and disquali-

fication of powers exist: to protect us

against Presidents who try to overrun

the power of the people in their elec-

tions and replace the rule of law with

the rule of mobs. These powers must

apply even if the President commits

his offenses in his final weeks in office.

In fact, that is precisely when we need

them the most because that is when

elections get attacked.

Everything that we know about the

language of the Constitution, the

Framers’ original understanding and

intent, prior Senate practice, and com-

mon sense, confirms this rule.

Let’s start with the text of the Con-

stitution. Article I, section 2 gives the

House the sole power of impeachment

when the President commits high

crimes and misdemeanors. We exer-

cised that power on January 13.

The President, it is undisputed, com-

mitted his offense while he was Presi-

dent, and it is undisputed that we im-

peached him while he was President.

There can be no doubt that this is a

valid and legitimate impeachment, and

there can be no doubt that the Senate

has the power to try this impeachment.

We know this because article I, section

3 gives the Senate the sole power to try

all impeachments. The Senate has the

power, the sole power, to try all im-

peachments. ‘‘All’’ means all, and there

are no exceptions to the rule. Because

the Senate has jurisdiction to try all

impeachments, it most certainly has

jurisdiction to try this one. It is really

that simple. The vast majority of con-

stitutional scholars who studied the

question and weighed in on the propo-

sition being advanced by the President,

this January exception, heretofore un-

known, agree with us, and that in-

cludes the Nation’s most prominent

conservative legal scholars, including

former Tenth Circuit Judge Michael

McConnell; the cofounder of the Fed-

eralist Society, Steven Calabresi; Ron-

ald Reagan’s Solicitor General Charles

Fried; luminary Washington lawyer

Charles Cooper, among hundreds of

other constitutional lawyers and pro-

fessors.

I commend the people I named—their

recent writings to you in the news-

papers over the last several days. And

all of the key precedents, along with

detailed explanation of the constitu-

tional history and textual analysis, ap-

pear in the trial brief we filed last

week and the reply brief that we filed

very early this morning.

I will spare you a replay, but I want

to highlight a few key points from con-

stitutional history that strike me as

compelling in foreclosing President

Trump’s argument that there is a se-

cret January exception hidden away in

the Constitution.

The first point comes from English

history, which matters because, as

Hamilton wrote, England provided ‘‘the

model from which the idea of this insti-

tution has been borrowed.’’ And it

would have been immediately obvious

to anyone familiar with that history

that former officials could be held ac-

countable for their abuses while in of-

fice.

Every single impeachment of a gov-

ernment official that occurred during

the Framers’ lifetime concerned a

former official—a former official. In-

deed, the most famous of these im-

peachments occurred while the Fram-

ers gathered in Philadelphia to write

the Constitution. It was the impeach-

ment of Warren Hastings, the former

Governor-general of the British colony

of Bengal and a corrupt guy. The

Framers knew all about it, and they

strongly supported the impeachment.

In fact, the Hastings case was invoked

by name at the convention. It was the

only specific impeachment case that

they discussed at the convention. It

played a key role in their adoption of

the high crimes and misdemeanors

standard. And even though everyone

there surely knew that Hastings had

left office 2 years before his impeach-

ment trial began, not a single Fram-

er—not one—raised a concern when

Virginian George Mason held up the

Hastings impeachment as a model for

us in the writing of our Constitution.

The early State constitutions sup-

ported the idea too. Every single State

constitution in the 1780s either specifi-

cally said that former officials could be

impeached or were entirely consistent

with the idea. In contrast, not a single

State constitution prohibited trials of

former officials. As a result, there was

an overwhelming presumption in favor

of allowing legislatures to hold former

officials accountable in this way. Any

departure from that norm would have

been a big deal, and yet there is no sign

anywhere that that ever happened.

Some States, including Delaware,

even confined impeachment only to of-

ficials who had already left office. This

confirms that removal was never seen

as the exclusive purpose of impeach-

ment in America. The goal was always

about accountability, protecting soci-

ety, and deterring official corruption.

Delaware matters for another reason.

Writing about impeachment in the

Federalist Papers, Hamilton explained

that the President of America would

stand upon no better ground than a

Governor of New York and upon worse

ground than the Governors of Mary-

land and Delaware. He thus emphasized

that the President is even more ac-

countable than officials in Delaware,

where, as I noted, the constitution

clearly allowed impeachment of former

officials.

And nobody involved in the conven-

tion ever said that the Framers meant

to reject this widely accepted, deeply

rooted understanding of the word ‘‘im-

peachment’’ when they wrote it into

our Constitution. The convention de-

bates instead confirm this interpreta-

tion. There, while discussing impeach-

ment, the Framers repeatedly returned

to the threat of Presidential corruption

aimed directly to elections, the heart

of self-government.

Almost perfectly anticipating Presi-

dent Trump, William Davey of North

Carolina explained impeachment was

for a President who spared ‘‘no effort

or means whatever to get himself re-

elected.’’

Hamilton, in Federalist 1, said the

greatest danger to republics and the

liberties of the people comes from po-

litical opportunists who begin as dema-

gogues and end as tyrants and the peo-

ple who are encouraged to follow them.

President Trump may not know a lot

about the Framers, but they certainly

knew a lot about him.

Given the Framers’ intense focus on

danger to elections and the peaceful

transfer of power, it is inconceivable

that they designed impeachment to be

a dead letter in the President’s final

days in office when opportunities to

interfere with the peaceful transfer of

power would be most tempting and

most dangerous, as we just saw. Thus,

as a matter of history and original un-

derstanding, there is no merit to Presi-

dent Trump’s claim that he can incite

an insurrection and then insist weeks

later that the Senate lacks the power

to even hear evidence at a trial, to

even hold a trial.

The true rule was stated by former

President John Quincy Adams when he

categorically declared:

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CONGRESSIONAL RECORD — SENATES592 February 9, 2021

I hold myself, so long as I have the breath

of life in my body, amenable to impeachment

by [the] House for everything I did during

the time I held any public office.

When he comes up in a minute, my

colleague Mr. N

EGUSE

of Colorado will

further pursue the relevant Senate

precedents and explain why this body’s

practice has been supported by the text

of the Constitution, and Mr. C

ICILLINE

of Rhode Island will then respond to

the fallacies presented by the Presi-

dent’s counsel. After these gentlemen

speak, I will return to discuss the im-

portance—the fundamental importance

of the Senate rejecting President

Trump’s argument for the preservation

of democratic self-government and the

rule of law in the United States of

America.

I now turn it over to my colleague,

Mr. N

EGUSE

of Colorado.

Mr. Manager NEGUSE. Mr. Presi-

dent, distinguished Senators, my name

is J

EGUSE

, and I represent Colo-

rado’s Second Congressional District in

the United States Congress.

Like many of you, I am an attorney.

I practiced law before I came to Con-

gress, tried a lot of different cases,

some more unique than others, cer-

tainly never a case as important as

this one, nor a case with such a heavy

and weighty constitutional question

for you all to decide.

Thankfully, as Lead Manager R

ASKIN

so thoroughly explained, the Framers

have answered that question for you,

for us, and you don’t need to be a con-

stitutional scholar to know that the

argument President Trump asks you to

adopt is not just wrong, it is dan-

gerous. And you don’t have to take my

word for it. This body, the world’s

greatest deliberative body, the United

States Senate, has reached that same

conclusion in one form or another over

the past 200 years on multiple occa-

sions that we will go through. Over 150

constitutional scholars, experts,

judges—conservative, liberal, you

name it—they overwhelmingly have

reached the same conclusion, that, of

course, you can try, convict, and dis-

qualify a former President. And that

makes sense because the text of the

Constitution makes clear there is no

January exception to the impeachment

power; that Presidents can’t commit

grave offenses in their final days and

escape any congressional response.

That is not how our Constitution

works.

Let’s start with the precedent, with

what has happened in this very Cham-

ber. I would like to focus on just two

cases. I will go through them quickly.

One of them is the Nation’s very first

impeachment case, which actually was

of a former official.

In 1797, about a decade after our

country ratified our Constitution,

there was a Senator from Tennessee by

the name of William Blount, who was

caught conspiring with the British to

try to sell Florida and Louisiana. Ulti-

mately, President Adams caught him.

He turned over the evidence to Con-

gress. Four days later, the House of

Representatives impeached him. A day

after that, this body, the United States

Senate, expelled him from office, so he

was very much a former official.

Despite that, the House went forward

with its impeachment proceeding in

order to disqualify him from ever again

holding Federal office. And so the Sen-

ate proceeded with the trial with none

other than Thomas Jefferson presiding.

Now, Blount argued that the Senate

couldn’t proceed because he had al-

ready been expelled. But here is the in-

teresting thing: He expressly disavowed

any claim that former officials can’t

ever be impeached. And unlike Presi-

dent Trump, he was very clear that he

respected and understood that he could

not even try to argue that ridiculous

position.

Even impeached Senator Blount rec-

ognized the inherent absurdity of that

view. Here is what he said:

I certainly never shall contend, that an of-

ficer may first commit an offense, and after-

wards avoid by resigning his office.

That is the point. And there was no

doubt because the Founders were

around to confirm that that was their

intent and the obvious meaning of

what is in the Constitution.

Fast-forward 80 years later—arguably

the most important precedent that this

body has to consider—the trial of

former Secretary of War William

Belknap. I am not going to go into all

the details, but, in short, in 1876, the

House discovered that he was involved

in a massive kickback scheme. Hours

before the House Committee had dis-

covered this conduct, released its re-

port documenting the scheme, Belknap

literally rushed to the White House to

resign, tender his resignation to Presi-

dent Ulysses Grant to avoid any fur-

ther inquiry into his misconduct, and,

of course, to avoid being disqualified

from holding Federal office in the fu-

ture.

Later that day, aware of the resigna-

tion, what did the House do? The House

moved forward and unanimously im-

peached him, making clear its power to

impeach a former official. And when

his case reached the Senate—this

body—Belknap made the exact same

argument that President Trump is

making today, that you all lack juris-

diction, any power, to try him because

he is a former official.

Now, many Senators at that time,

when they heard that argument—lit-

erally, they were sitting in the same

chair as you all are sitting in today—

they were outraged by that argument—

outraged. You can read their comments

in the R

ECORD

. They knew it was a dan-

gerous, dangerous argument with dan-

gerous implications. It would literally

mean that a President could betray

their country, leave office, and avoid

impeachment and disqualification en-

tirely. And that is why, in the end, the

United States Senate decisively voted

that the Constitution required them to

proceed with the trial.

The Belknap case is clear precedent

that the Senate must proceed with this

trial since it rejected pretrial dis-

missal, affirmed its jurisdiction, and

moved to a full consideration of the

merits.

Now, Belknap ultimately was not

convicted but only after a thorough

public inquiry into his misconduct,

which created a record of his wrong-

doing. It ensured his accountability

and deterred anyone else from consid-

ering such corruption by making clear

that it was intolerable. The trial

served important constitutional pur-

poses.

Now, given that precedent that I de-

scribed to you, given all that that

precedent imparts, you could imagine

my surprise—Lead Manager R

ASKIN

’s

surprise—when we were reviewing a

trial brief filed by the President in

which his counsel insists that the Sen-

ate actually didn’t decide anything in

the Belknap case. They say—these are

not my words. I will quote from their

trial brief:

[It] cannot be read as foreclosing an argu-

ment that they never dealt with.

Never dealt with? The Senate didn’t

debate this question for 2 hours. The

Senate debated this very question for 2

weeks. The Senate spent an additional

2 weeks deliberating on the jurisdic-

tional question. And at the end of

those deliberations, they decided deci-

sively that the Senate has jurisdiction

and that it could proceed, that it must

proceed to a full trial.

By the way, unlike Belknap, as we

know, President Trump was not im-

peached for run-of-the-mill corruption,

misconduct. He was impeached for in-

citing a violent insurrection—an insur-

rection where people died in this build-

ing, an insurrection that desecrated

our seat of government. And if Con-

gress were just to stand completely

aside in the face of such an extraor-

dinary crime against the Republic, it

would invite future Presidents to use

their power without any fear of ac-

countability. And none of us—I know

this—none of us, no matter our party

or our politics, wants that.

Now, we have gone through the high-

lights of the precedent, and I think it

is important that you know, as Lead

Manager R

ASKIN

mentioned, that

scholars, overwhelmingly, that re-

viewed this same precedent have all

come to the same conclusion that the

Senate must hear this case.

Let’s go through just a few short ex-

amples. To start, all of us, I know, are

familiar with the Federalist Society.

Some of you may know Steven

Calabresi personally. He is the co-

founder of the Federalist Society. Ac-

tually, he was the chairman of the

board in 2019. He was the first president

of the Yale Federalist Society chapter

board, a position I understand Senator

AWLEY

later held.

Here is what Mr. Calabresi has to

say. On January 21, he issued a public

letter stating:

Our carefully considered views of the law

lead all of us to agree that the Constitution

permits the impeachment, conviction, and

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CONGRESSIONAL RECORD — SENATE S593 February 9, 2021

disqualification of former officers, including

presidents.

And by the way, he is not the only

one, as Lead Manager R

ASKIN

said—

President Reagan’s former Solicitor

General, among many others.

Another prominent conservative

scholar known to many of you, again,

personally is a former Tenth Court of

Appeals judge—my circuit—Judge Mi-

chael McConnell. He was nominated by

President George W. Bush. He was con-

firmed by this body unanimously. Sen-

ator Hatch—many of you served with—

he had this to say about Judge McCon-

nell, that he ‘‘is an honest man. He

calls it as he sees it, and he is beholden

to no one and no group.’’

Well, what does Judge McConnell

have to say about the question that

you are debating this afternoon? He

said the following:

Given that the impeachment of President

Trump was legitimate, the text makes clear

that the Senate has power to try that im-

peachment.

You heard Lead Manager R

ASKIN

mention another lawyer, Chuck Coo-

per, a prominent conservative lawyer

here in Washington. He has represented

former Attorney General Jeff Sessions

and House Minority Leader K

EVIN

ARTHY

. He issued an editorial just 2

days ago, very powerful, observing that

‘‘scholarship on this question has ma-

tured substantially’’ and that, ulti-

mately, arguments that President

Trump is championing are beset by

‘‘serious weaknesses.’’

Finally, I have gone through a lot of

scholars. I will finish on this one.

There is another scholar that I know

some of you know and some of you

have actually spoken with recently. Up

until just a few weeks ago, he was a

recognized champion—champion—of

the view that the Constitution author-

izes the impeachment of former offi-

cials. And that is Professor Jonathan

Turley.

Let me show you what I mean. These

are his words. First, in a very detailed

study, thorough study, he explained

that ‘‘the resignation from office does

not prevent trial on articles of im-

peachment.’’

Those are Professor Turley’s words.

Same piece. He celebrated the Belknap

trial. He described it as ‘‘a corrective

measure that helped the system regain

legitimacy.’’

He wrote another article—he has

written several on this topic. This one

is actually a 146-page study, very de-

tailed.

In that study, he said that the deci-

sion in Belknap was ‘‘correct in its

view that impeachments historically

had extended to former officials, such

as Warren Hastings,’’ who you heard

Lead Manager R

ASKIN

describe.

In fact, as you can see, Professor

Turley argued the House could impeach

and the Senate could have tried Rich-

ard Nixon after he resigned. His quote

on this is very telling: ‘‘Future Presi-

dents could not assume that mere res-

ignation would avoid a trial of their

conduct’’ in the United States Senate.

Finally, last quote from Professor

Turley that ‘‘no man in no cir-

cumstance, can escape the account,

which he owes to the laws of his coun-

try.’’ Not my words, not Lead Manager

ASKIN

’s words—Professor Jonathan

Turley’s words. I agree with him be-

cause he is exactly right.

Now, a question one might reason-

ably ask after going through all those

quotes from such noted jurists and

scholars: Why is there such agreement

on this topic? Well, the reason is pretty

simple. It is because it is what the Con-

stitution says.

I want to walk you through three

provisions of the Constitution that

make clear that the Senate must try

this case.

First, let’s start with what the Con-

stitution says about Congress’s power

in article I. You heard Lead Manager

ASKIN

make this point, but it is worth

underscoring. Article I, section 2 gives

the House ‘‘sole Power of Impeach-

ment.’’ Article I, section 3 gives the

Senate the ‘‘sole Power to try all Im-

peachments.’’

Based on President Trump’s argu-

ment, one would think that language

includes caveats, exceptions, but it

doesn’t. It doesn’t say ‘‘Impeachment

of current civil officers.’’ It doesn’t say

‘‘Impeachment of those still in office.’’

The Framers didn’t mince words.

They provided express, absolute, un-

qualified grants of jurisdictional power

to the House to impeach and the Sen-

ate to try all impeachments—not some,

all.

Former Judge McConnell, the judge

that we talked about earlier, he pro-

vides very effective textual analysis of

this provision. You can see it up here

on the slide. I will just give you the

highlight. He says—and I will quote.

This is Judge McConnell:

Given that the impeachment of Mr. Trump

was legitimate, the text makes clear that

the Senate has power to try that impeach-

ment.

Now, again, here is what—it is pretty

interesting to me at least. We pre-

sented this argument in our trial brief,

which we filed over a week ago, where

we laid it out step by step so that you

could consider it and so that opposing

counsel could consider it as well.

We received President Trump’s re-

sponse yesterday, and the trial brief of-

fers no rebuttal to this point—none. In

fairness, I can’t think of any con-

vincing response. I mean, the Constitu-

tion is just exceptionally clear on this

point. Now, perhaps they will have

something to say today about it, but

they did not yesterday.

There is another provision worth

mentioning here because there has

been a lot of confusion about it. I am

going to try to clear this up. This is

the provision on removal and disquali-

fication. We all know the Senate im-

poses a judgment only when it con-

victs. Up on the screen, you will see ar-

ticle I, section 3, clause 7. With that in

mind, the language says that if the

Senate convicts, the judgment ‘‘shall

not extend further than’’ removal and

disqualification.

That is it. The meaning is clear. The

Senate has the power to impose re-

moval, which only applies to current

officials. And, separately, it has the

power to impose disqualification,

which obviously applies to both cur-

rent and former officers. But it doesn’t

have the power to go any further than

that.

Now, as I understand President

Trump’s argument, they believe that

this language somehow says that dis-

qualification can only follow the re-

moval of a current officer, but it

doesn’t. That interpretation essen-

tially rewrites the Constitution. It

adds words that aren’t there. I mean,

after all, the Constitution does not say

‘‘removal from office and then disquali-

fication.’’ It doesn’t say ‘‘removal from

office followed by disqualification.’’ It

simply says the Senate can’t do more

than two possible sentences: removal

and disqualification.

This, by the way, is not the first time

that this direct question has been de-

bated in this Chamber. One hundred

forty-six years ago, during the Belknap

trial, Senator George Edmunds of

Vermont was one of the most pres-

tigious Republican Senators of his

time. He sat right where Senator

RASSLEY

sits today. He zeroed in on

this exact point during the Belknap

trial.

This is his quote:

A prohibition against doing more than two

things cannot be turned into a command to

do both or neither.

And just imagine the consequences of

such an absurd interpretation of the

Constitution. If President Trump were

right about that language, then offi-

cials could commit the most extraor-

dinary, destructive offenses against the

American people—high crimes and mis-

demeanors. They would have total con-

trol over whether they could ever be

impeached and, if they are, whether

the Senate can try the case. If they

want to escape any public inquiry into

their misconduct or the risk of dis-

qualification from future office, then it

is pretty simple. They could just resign

1 minute before the House impeaches

or even 1 minute before the Senate

trial or they could resign during the

Senate trial if it is not looking so well.

That would effectively erase ‘‘disquali-

fication’’ from the Constitution. It

would put wrongdoers in charge of

whether the Senate can try them.

The third and final reason why Presi-

dent Trump must stand trial: the pro-

vision of article I of the Constitution.

You will see here on the screen that

the Constitution twice describes the

accused in an impeachment trial. Here

is what I want you to focus on. The in-

teresting thing is notice the words. It

refers to a ‘‘person’’ and a ‘‘party’’

being impeached. Now, again, we know

that the Framers gave a lot of thought

to the words that they chose. They

even had a style committee during the

Constitutional Convention. They could

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CONGRESSIONAL RECORD — SENATES594 February 9, 2021

have written ‘‘civil officers’’ here. They

did that elsewhere in the Constitution.

That would, ultimately, have limited

impeachment trials to current offi-

cials, but, instead, they used broader

language to describe who could be tried

by the United States Senate.

So who could be put on trial for im-

peachment other than civil officers?

Who else could a ‘‘person’’ or a ‘‘party’’

be? Well, really, there is only one pos-

sible answer: former officers.

And, again, that actually might ex-

plain why, during the Belknap trial,

Senator Thomas Bayard, of Delaware,

who later became the Secretary of

State for the United States—he sat

right where Senator C

ARPER

is sitting

now—he found this point so compelling

that he felt compelled to speak out on

it. During the trial, he concluded that

the Constitution must allow the im-

peachment and trial of people and par-

ties who are not civil officers, and the

only group that could possibly encom-

pass was former officials like Belknap

and, of course, here, like President

Trump.

Just so we are clear, in full disclo-

sure, this is another argument that was

not addressed by President Trump in

his rebuttal, and we know why they

didn’t: because their argument doesn’t

square with the plain text of the Con-

stitution. There is one provision that

President Trump relies on almost ex-

clusively, article II, section 4. I am

sure you will see it when they present

their arguments.

Their argument is that the language

you will see on the screen somehow

prevents you from holding this trial,

by making removal from office an ab-

solute requirement—but, again, where

does the language say that? Where does

it say anything in that provision about

your jurisdiction? In fact, this provi-

sion isn’t even in the part of the Con-

stitution that addresses your author-

ity. It is in article II, not article I, and

it certainly says nothing about former

officials.

President Trump’s interpretation

doesn’t square with history,

originalism, textualism. In fact, even

Chuck Cooper, the famous conservative

lawyer I mentioned earlier, with cli-

ents like the House minority leader,

has concluded that this provision of

the Constitution that President Trump

relies on ‘‘cuts against’’ his position—

his words—and that is because, as Coo-

per says, article II, section 4 means

just what it says. The first half de-

scribes what an official must do to be

impeached—namely, commit high

crimes and misdemeanors—and the sec-

ond half describes what happens when

civil officers of the United States, in-

cluding the sitting President, are con-

victed: removal from office. That is it.

In Cooper’s words:

It simply establishes what is known in

criminal law as a ‘‘mandatory minimum’’

punishment.

It says nothing about former offi-

cials, nothing at all.

Given all of that, it is not surprising

that, in President Trump’s legal trial

brief—a 75-page brief—they struggled

to find any professors to support their

position. They did cite one professor,

though, Professor Kalt, an expert in

this field, who they claim agreed with

them that the only purpose of impeach-

ment is removal. Professor Kalt’s posi-

tion, which they had to have known be-

cause it is in the article that they cite

in the brief, is that ‘‘removal’’ is ‘‘not

the sole end of impeachment.’’ Actu-

ally, in that same article, he describes

the view advocated by President

Trump’s lawyers as having ‘‘deep

flaws.’’

Again, you do not have to take my

word for it. You can take Professor

Kalt’s word for it, the professor they

cited in their brief, filed yesterday, be-

cause he tweeted about it on the screen

here. This is what he had to say. I am

not going to read through it in great

detail. I will just simply give you the

highlights.

[President] Trump’s brief cites my 2001 ar-

ticle on late impeachment a lot. . . . But in

several places, they misrepresent what I

wrote quite badly. . . . There are multiple

examples of such flat-out misrepresenta-

tions. . . . They didn’t have to be disingen-

uous and misleading. . . .

This key constitutional scholar, re-

lied on by President Trump, said it just

right.

I have explained in great detail the

many reasons the argument that Presi-

dent Trump advocates for here today is

wrong. I just want to close with a note

about why it is dangerous.

Lead Manager R

ASKIN

explained that

impeachment exists to protect the

American people from officials who

abuse their power, who betray them. It

exists for a case just like this one.

Honestly, it is hard to imagine a

clearer example of how a President

could abuse his office: inciting violence

against a coequal branch of govern-

ment while seeking to remain in power

after losing an election—sitting back

and watching it unfold. We all know

the consequences.

Like every one of you, I was in the

Capitol on January 6. I was on the floor

with Lead Manager R

ASKIN

. Like every

one of you, I was evacuated as this vio-

lent mob stormed the Capitol’s gates.

What you experienced that day, what

we experienced that day, what our

country experienced that day was the

Framers’ worst nightmare coming to

life. Presidents can’t enflame insurrec-

tion in their final weeks and then walk

away like nothing happened. Yet that

is the rule that President Trump asks

you to adopt.

I urge you, we urge you to decline his

request, to vindicate the Constitution,

to let us try this case.

Mr. Manager CICILLINE. Mr. Presi-

dent, distinguished Senators, my name

is D

AVID

ICILLINE

. I have the honor of

representing the First Congressional

District of Rhode Island.

As I hope is now clear from the argu-

ments of Mr. R

ASKIN

and Mr. N

EGUSE

impeachment is not merely about re-

moving someone from office. Fun-

damentally, impeachment exists to

protect our constitutional system, to

keep each of us safe, to uphold our free-

dom, to safeguard our democracy. It

achieves that by deterring abuse of the

extraordinary power that we entrust to

our Presidents from the very first day

in office to the very last day. It also

ensures accountability for Presidents

who harm us or our government. In the

aftermath of a tragedy, it allows us an

opportunity to come together and to

heal by working through what hap-

pened and reaffirming our constitu-

tional principles, and it authorizes this

body and this body alone to disqualify

from our political system anybody

whose conduct in office proves that

they present a danger to the Republic.

But impeachment would fail to achieve

these purposes if you created, for the

first time ever, despite the words of the

Framers and the Constitution, a Janu-

ary exception, as Mr. R

ASKIN

explained.

Now, I was a former defense lawyer

for many years, and I can understand

why President Trump and his lawyers

don’t want you to hear this case, why

they don’t want you to see the evi-

dence, but the argument that you lack

jurisdiction rests on a purely fictional

loophole—purely fictional—designed to

allow the former President to escape

all accountability for conduct that is

truly indefensible under our Constitu-

tion. You saw the consequences of his

actions on the video that we played

earlier. I would like to emphasize in

still greater detail the extraordinary

constitutional offense that the former

President thinks you have no power

whatsoever to adjudicate.

While spreading lies about the elec-

tion outcome, in a brazen attempt to

retain power against the will of the

American people, he incited an armed,

angry mob to riot—and not just any-

where but here in the seat of our gov-

ernment, in the Capitol, during a joint

session of Congress, when the Vice

President presided while we carried out

a peaceful transfer of power, which was

interrupted for the first time in our

history. This was a disaster of historic

proportion. It was also an unforgivable

betrayal of the oath of office of Presi-

dent Trump, the oath he swore, an oath

that he sullied and dishonored to ad-

vance his own personal interests.

And make no mistake about it, as

you think about that day, things could

have been much worse. As one Senator

said, they could have killed all of us. It

was only the bravery and sacrifice of

the police, who suffered deaths and in-

juries as a result of President Trump’s

actions, that prevented greater trag-

edy.

At trial, we will prove with over-

whelming evidence that President

Trump is singularly and directly re-

sponsible for inciting the assault on

the Capitol. We will also prove that his

dereliction of duty, his desire to seek

personal advantage from the mayhem,

and his decision to issue tweets, fur-

ther inciting the mob by attacking the

Vice President, all compounded the al-

ready enormous damage.

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CONGRESSIONAL RECORD — SENATE S595 February 9, 2021

Now, virtually every American who

saw those events unfold on television

was absolutely horrified by the events

of January 6, but we also know how

President Trump himself felt about the

attack. He told us. Here is what he

tweeted at 6:01 as the Capitol was in

shambles and as dozens of police offi-

cers and other law enforcement officers

lay battered and bruised and bloodied.

Here is what he said:

These are the things and events that hap-

pen when a sacred landslide election victory

is so unceremoniously & viciously stripped

away from great patriots who have been

badly & unfairly treated for so long. Go

home with love & in peace. Remember this

day forever!

Every time I read that tweet, it

chills me to the core. The President of

the United States sided with the insur-

rectionists. He celebrated their cause.

He validated their attack. He told

them, ‘‘Remember this day forever,’’

hours after they marched through

these halls looking to assassinate Vice

President Pence, the Speaker of the

House, and any of us they could find.

Given all that, it is no wonder that

President Trump would rather talk

about jurisdiction and a supposed Jan-

uary exception rather than talk about

what happened on January 6.

Make no mistake, his arguments are

dead wrong. They are distractions from

what really matters. The Senate can

and should require President Trump to

stand trial.

My colleagues have already ad-

dressed many of President Trump’s ef-

forts to escape trial. I would like to

cover the remainder and then address

the broader issues at stake in this

trial.

For starters, in an extension of his

mistaken reading of the Constitution,

President Trump insists that he cannot

face trial in the Senate because he is

merely a private citizen. He references

here the bill of attainder clause.

But as Mr. N

EGUSE

just explained,

the Constitution refers to the defend-

ant in an impeachment trial as a ‘‘Per-

son’’ and a ‘‘Party,’’ and certainly he

counts as one of those.

Let’s also apply some common sense.

There is a reason that he now insists

on being called ‘‘the 45th President of

the United States’’ rather than ‘‘Cit-

izen Trump.’’ He isn’t a randomly se-

lected private citizen. He is a former

officer of the United States Govern-

ment. He is a former President of the

United States of America. He is treated

differently under a law called the

Former Presidents Act.

For 4 years, we trusted him with

more power than anyone else on Earth.

As a former President, who promised

on a Bible to use his power faithfully,

he can and should answer for whether

he kept that promise while bound by it

in office. His insistence otherwise is

just wrong, and so is his claim that

there is a slippery slope to impeaching

private citizens if you proceed.

The trial of a former official for

abuses he committed as an official,

arising from an impeachment that oc-

curred while he was an official, poses

absolutely no risk whatsoever of sub-

jecting a private citizen to impeach-

ment for their private conduct.

To emphasize the point, President

Trump was impeached while he was in

office for conduct in office—period.

The alternative, once again, is this

January exception, in which our most

powerful officials can commit the most

terrible abuses and then resign, leave

office, and suddenly claim that they

are just a private citizen who can’t be

held accountable at all.

In the same vein, President Trump

and his lawyers argue that he shouldn’t

be impeached because it will set a bad

precedent for impeaching others. But

that slippery slope argument is also in-

correct. For centuries, the prevailing

view has been that former officials are

subject to impeachment. We just heard

a full discussion of that. The House has

repeatedly acknowledged that fact.

But in the vast majority of cases, the

House has rightly recognized that an

official’s resignation or departure

makes the extraordinary step of im-

peachment unnecessary and maybe

even unwise.

As a House manager rightly ex-

plained in the Belknap case, and I

quote:

There is no likelihood that we shall ever

unlimber [the] clumsy and bulky monster

piece of ordinance to take aim at an object

from which all danger has gone by.

President Trump’s case, though, is

different. The danger has not ‘‘gone

by.’’ His threat to democracy makes

any prior abuse by any government of-

ficial pale in comparison.

Moreover, allowing his conduct to

pass without the most decisive re-

sponse would itself create an extraor-

dinary danger to the Nation, inviting

further abuse of power and signaling

that the Congress of the United States

is unable or unwilling to respond to in-

surrection incited by the President.

Think about that.

To paraphrase Justice Robert Jack-

son, who said that precedent that I just

described would lie about like a loaded

weapon, ready for the hand of any fu-

ture President who decided in his final

months to make a play for unlimited

power—think of the danger.

Here is the rare case in which love of

the Constitution and commitment to

our democracy required the House to

impeach. It is for the same reason, the

Senate can and must try this case.

Next, President Trump will assert

that it somehow is significant or it

matters that the Chief Justice isn’t

presiding over this trial.

Let me state this very plainly: It

does not matter. It is not significant.

Under article I, section 3, ‘‘When the

President of the United States is tried,

the Chief Justice shall preside.’’

There is only one person who is

President of the United States at a

time. Right now, Joseph R. Biden, Jr.,

is the 46th President of the United

States. As a result, the requirement

that the Chief Justice preside isn’t

triggered. Instead, the normal rules of

any impeachment of anyone other than

the sitting President apply, and under

those rules, the President Pro Tem-

pore, Senator L

EAHY

, can preside.

And, of course, this makes perfect

sense. The Chief Justice presides be-

cause, when the current President is on

trial, if the Chief Justice doesn’t pre-

side, the Vice President presides, and it

would be a conflict for someone to pre-

side over a trial that would become

President if there was a conviction. So

there isn’t that concern when you have

a former President on trial, or, for that

matter, when you have anyone on trial

other than the current President,

which is why the Chief Justice presides

only in that single case, and why this

is exactly the Presiding Officer the

Constitution and the Senate rules re-

quire.

As a fallback, President Trump and

his lawyers may argue today that he

should get a free pass on inciting an

armed insurrection against the United

States Government and endangering

Congress because, as he would put it,

this impeachment is somehow uncon-

stitutional.

So far as I understand it, from read-

ing the pleadings in this case, this de-

fense involves cobbling together a

bunch of meritless legal arguments, all

of them attempting to focus on sub-

stance rather than jurisdiction and in-

sisting that these kitchen-sink objec-

tions lead the Senate to not try the

case.

Since they may raise these points, at

this juncture I feel obliged, really, to

address them.

He may argue, for example, that he

didn’t receive enough process in the

House, even though the House pro-

ceedings are more like a grand jury ac-

tion, which is followed later by trial in

the Senate, with a full presentation of

evidence; even though the evidence of

his high crimes and misdemeanors is

overwhelming and supported by a huge

public record; even though we are

going to put that evidence before you

at this trial; and even though he had a

full and fair opportunity to respond to

it before all of you; even though hun-

dreds of others involved in the events

of January 6 have already been charged

for their role in the attacks that the

President incited; and even though we

invited him to voluntarily come here

and testify and tell his story, a re-

quest, as you know, that his lawyers

immediately refused, presumably be-

cause they understood what would hap-

pen if he were to testify under oath.

Regardless, President Trump’s proc-

ess arguments are not only wrong on

their own terms, but they are also

completely irrelevant to the question

of whether you should hold this trial.

That question is answered by the Con-

stitution, and the answer is yes.

In addition, separate from his due

process complaints, President Trump

and his counsel—particularly his coun-

sel—have both said on TV that to

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CONGRESSIONAL RECORD — SENATES596 February 9, 2021

counter the undisputed evidence of

what actually happened in this case,

you will see video clips. They will show

video clips of other politicians, includ-

ing Democratic politicians, using what

they consider incendiary language.

Apparently, they think this will es-

tablish some sort of equivalency or

that it will show, in contrast, that

President Trump’s statements at the

Save America rally weren’t so bad.

Like so much of what President

Trump’s lawyers might say today, that

is a gimmick. It is a parlor game,

meant to inflame partisan hostility

and play on our divisions.

So let me be crystal clear. President

Trump was not impeached because the

words he used, viewed in isolation,

without context, were beyond the pale.

Plenty of other politicians have used

strong language. But Donald J. Trump

was President of the United States. He

sought to overturn a Presidential elec-

tion that had been upheld by every sin-

gle court to consider it. He spent

months insisting to his base that the

only way he could lose was a dan-

gerous, wide-ranging conspiracy

against them and America itself.

He relentlessly attempted to per-

suade his followers that the peaceful

transfer of power that was taking place

in the Capitol was an abomination that

had to be stopped at all costs.

He flirted with groups like the Proud

Boys, telling them to ‘‘stand back and

stand by,’’ while endorsing violence

and sparking death threats to his oppo-

nents.

He summoned an armed, angry, and

dangerous crowd that wanted to keep

him in power and was widely reported

to be poised on a hair trigger for vio-

lence at his direction.

He then made his heated statements

in circumstances where it was clear,

where it was foreseeable, that those

statements would spark extraordinary,

imminent violence.

He then failed to defend the Capitol,

the Congress, and the Vice President

during the insurrection, engaging in

extraordinary dereliction of duty and

desertion of duty that was only pos-

sible because of the high office he held.

He issued statements during the in-

surrection targeting the Vice President

and reiterating the very same lies

about the election that had launched

the violence in the first place.

And he issued a tweet 5 hours after

the Capitol was sacked in which he

sided with the bad guys.

We all know that context matters,

that office and meaning and intent and

consequences matter. Simply put, it

matters when and where and how we

speak. The oaths we have sworn and

the power we hold matter.

President Trump was not impeached

because he used words that the House

decided are forbidden or unpopular. He

was impeached for inciting armed vio-

lence against the Government of the

United States of America.

This leads me to a few final thoughts

about why it is so important for you to

hear this case, as authorized and as, in-

deed, required by our history and by

the Constitution.

President Trump’s lawyers will say, I

expect, that you should dismiss his

case so that the country can ‘‘move

on.’’ They will assert that this im-

peachment is partisan, and that the

spirit of bipartisanship and bipartisan

cooperation requires us to drop the

case and march forward in unity.

With all due respect, every premise

and every conclusion of that argument

is wrong.

Just weeks ago—weeks ago—the

President of the United States literally

incited an armed attack on the Capitol,

our seat of government, while seeking

to retain power by subverting an elec-

tion he lost, and then celebrated the

attack.

People died. People were brutally in-

jured. President Trump’s actions en-

dangered every single Member of Con-

gress, his own Vice President, thou-

sands of congressional staffers, and our

own Capitol Police and other law en-

forcement.

This was a national tragedy, a dis-

aster for America’s standing in the

world, and President Trump is sin-

gularly responsible for inciting it.

As we will prove, the attack on the

Capitol was not solely the work of ex-

tremists lurking in the shadows. In-

deed, does anyone in this Chamber hon-

estly believe that, but for the conduct

of President Trump, that charge in the

Article of Impeachment, that that at-

tack at the Capitol would have oc-

curred? Does anybody believe that?

And now his lawyers will come before

you and insist, even as the Capitol is

still surrounded with barbed wire and

fences and soldiers, that we should just

move on, let bygones be bygones, and

allow President Trump to walk away

without any accountability, any reck-

oning, any consequences. That cannot

be right. That is not unity. That is the

path to fear of what future Presidents

could do.

So there is a good reason why this

Article of Impeachment passed the

House with bipartisan support. The

principles at stake belong to all Ameri-

cans through all walks of life. We have

a common interest in making clear

that there are lines nobody can cross,

especially the President of the United

States, and so we share an interest in

this trial where the truth can be shown

and where President Trump can be

called to account for his offenses.

William Faulkner famously wrote

that ‘‘the past is never dead.’’ But this

isn’t even the past. This just happened.

It is still happening. Look around as

you come to the Capitol and come to

work. I really do not believe that our

attention span is so short, that our

sense of duty so frail, our factional loy-

alty so all-consuming, that the Presi-

dent can provoke an attack on Con-

gress itself and get away with it just

because it occurred near the end of his

term.

After a betrayal like this, there can-

not be unity without accountability.

And this is exactly what the Constitu-

tion calls for. The Framers’ original

understanding, this Chamber’s own

precedent, and the very words used in

the Constitution all confirm unques-

tionably, indisputably, that President

Trump must stand trial for his high

crimes and misdemeanors against the

American people.

We must not, we cannot continue

down the path of partisanship and divi-

sion that has turned the Capitol into

an armed fortress.

Senators, it now falls to you to bring

our country together by holding this

trial and, once all the evidence is be-

fore you, by delivering justice.

Mr. Manager RASKIN. Senators, Mr.

President, to close, I want to say some-

thing personal about the stakes of this

decision whether President Trump can

stand trial and be held to account for

inciting insurrection against us.

This trial is personal indeed for every

Senator, for every Member of the

House, every manager, all of our staff,

the Capitol Police, the Washington,

DC, Metropolitan Police, the National

Guard, the maintenance and custodial

crews, the print journalists and TV

people who were here, and all of our

families and friends. I hope this trial

reminds America how personal democ-

racy is and how personal is the loss of

democracy too.

Distinguished Members of the Sen-

ate, my youngest daughter, Tabitha,

was there with me on Wednesday, Jan-

uary 6. It was the day after we buried

her brother, our son Tommy, the sad-

dest day of our lives. Also there was

my son-in-law Hank, who is married to

our oldest daughter, Hannah, and I con-

sider him a son, too, even though he

eloped with my daughter and didn’t

tell us what they were going to do. But

it was in the middle of COVID–19.

But the reason they came with me

that Wednesday, January 6, was be-

cause they wanted to be together with

me in the middle of a devastating week

for our family, and I told them I had to

go back to work because we were

counting electoral votes that day on

January 6. It was our constitutional

duty. And I invited them instead to

come with me to witness this historic

event, the peaceful transfer of power in

America. And they said they heard

that President Trump was calling on

his followers to come to Washington to

protest, and they asked me directly:

Would it be safe? Would it be safe? And

I told them: Of course it should be safe.

This is the Capitol.

TENY

OYER

, our majority leader,

had kindly offered me the use of his of-

fice on the House floor because I was

one of the managers that day and we

were going through our grief. So Tab-

itha and Hank were with me in S

TENY

’s

office as colleagues dropped by to con-

sole us about the loss of our middle

child, Tommy, our beloved Tommy.

Mr. N

EGUSE

and Mr. C

ICILLINE

actu-

ally came to see me that day. Dozens of

Members—lots of Republicans, lots of

Democrats—came to see me, and I felt

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CONGRESSIONAL RECORD — SENATE S597 February 9, 2021

a sense of being lifted up from the

agony, and I won’t forget their tender-

ness.

Through the tears, I was working on

a speech to the floor when we would all

be together in joint session, and I

wanted to focus on unity when we met

in the House. I quoted Abraham Lin-

coln’s famous 1878 Lyceum speech,

where he said that if division and de-

struction ever come to America, it

won’t come from abroad, it will come

from within, said Lincoln, and in that

same speech, Lincoln passionately de-

plored mob violence. This was right

after the murder of Elijah Lovejoy, the

abolitionist newspaper writer. Lincoln

deplored mob violence, and he deplored

mob rule, and he said it would lead to

tyranny and despotism in America.

That was the speech I gave that day

after the House very graciously and

warmly welcomed me back. Tabitha

and Hank came with me to the floor,

and they watched it from the Gallery,

and when it was over, they went back

to that office, S

TENY

’s office off of the

House floor. They didn’t know that the

House had been breached yet and that

an insurrection or a riot or a coup had

come to Congress, and by the time we

learned about it, about what was going

on, it was too late. I couldn’t get out

there to be with them in that office.

And all around me, people were calling

their wives and their husbands and

their loved ones to say goodbye.

Members of Congress in the House

were removing their congressional pins

so they wouldn’t be identified by the

mob as they tried to escape the vio-

lence. Our new Chaplain got up and

said a prayer for us, and we were told

to put our gas masks on, and then

there was a sound I will never forget,

the sound of pounding on the door like

a battering ram, the most haunting

sound I have ever heard, and I will

never forget it.

My chief of staff, Julie Tagen, was

with Tabitha and Hank, locked and

barricaded in that office, the kids hid-

ing under the desk, placing what they

thought were their final texts and

whispered phone calls to say their

goodbyes. They thought they were

going to die. My son-in-law had never

even been to the Capitol before.

When they were finally rescued over

an hour later by Capitol officers and we

were together, I hugged them, and I

apologized, and I told my daughter

Tabitha, who is 24 and a brilliant alge-

bra teacher in Teach for America now,

I told her how sorry I was, and I prom-

ised her that it would not be like this

again the next time she came back to

the Capitol with me. And do you know

what she said? She said: Dad, I don’t

want to come back to the Capitol.

Of all the terrible, cruel things I saw

and I heard on that day and since then,

that one hit me the hardest, that and

watching someone use an American

flagpole, with the flag still on it, to

spear and pummel one of our police of-

ficers, ruthlessly, mercilessly tortured

by a pole with a flag on it that he was

defending with his very life.

People died that day. Officers ended

up with head damage and brain dam-

age. People’s eyes were gouged. An offi-

cer had a heart attack. An officer lost

three fingers that day. Two officers

have taken their own lives.

Senators, this cannot be our future.

This cannot be the future of America.

We cannot have Presidents inciting and

mobilizing mob violence against our

government and our institutions be-

cause they refuse to accept the will of

the people under the Constitution of

the United States. Much less can we

create a new January exception in our

precious, beloved Constitution that

prior generations have died for and

fought for, so that corrupt Presidents

have several weeks to get away with

whatever it is 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.

RECESS

Mr. SCHUMER. Mr. President, I ask

unanimous consent that there now be a

10-minute break. I ask unanimous con-

sent that the Senate recess for 10 min-

utes.

There being no objection, at 2:41

p.m., the Senate, sitting as a Court of

Impeachment, recessed until 3:01 p.m.;

whereupon the Senate reassembled

when called to order by the President

pro tempore.

The PRESIDENT pro tempore. Mr.

Castor has 2 hours, and Mr. R

ASKIN

has

33 minutes.

Mr. Counsel CASTOR. May I proceed,

Mr. President?

The PRESIDENT pro tempore. You

may.

COUNSELS

’

OPENING STATEMENTS

Mr. Counsel CASTOR. Mr. President

and Members of the U.S. 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

was an assistant DA for such a long

time, I keep saying ‘‘prosecutor,’’ but I

do understand the difference, Mr.

ASKIN

Before I begin, I want to comment on

the outstanding presentation from our

opponents and the emotion that cer-

tainly welled up in Congressman

ASKIN

about his family being here

during that terrible day.

You will not hear any member of the

team representing former President

Trump say anything but, in the strong-

est possible way, denounce the violence

of the rioters and those who breached

the Capitol, the very citadel of our de-

mocracy—literally, the symbol that

flashes on television whenever you are

trying to explain that we are talking

about the United States, an instant

symbol. To have it attacked is repug-

nant in every sense of the word.

The loss of life is horrific. I spent

many long years prosecuting homicide

cases, catching criminals who com-

mitted murders. I have quite an exten-

sive experience in dealing with the

aftermath of those things.

Certainly, as an FOP member and a

member of many police organizations

myself, we mourn the loss of the Cap-

itol Police officer, whom I understand

is laying not too far away from here.

And, you know, many of you in this

room, over your careers, before they

reached this summit here in the Sen-

ate, would have had times where you

represented your local communities as

assistant district attorneys, assistant

Commonwealth attorneys, assistant

State attorneys. And you know this to

be true—that when a horrific event oc-

curred in your county or in your juris-

diction, if it was a State jurisdiction,

you know that there was a terrible out-

cry, and the public immediately reacts

with a desire that someone pay because

something really bad happened. And

that is a natural reaction of human

beings. It is a natural reaction of

human beings because we are generally

a social people. We enjoy being around

one another, even in DC.

We recognize that people all the

world over, and especially Americans

who share that special bond with one

another, love the freedoms that this

country gives us. And we all feel that if

somebody is unsafe when they are

walking down the street, that the next

person who is unsafe could be you, your

spouse, one of your children, some

other person that you love and know

personally.

So you will never hear anybody rep-

resenting former President Trump say

anything at all other than what hap-

pened on January 6 and the storming

and breaching of the Capitol should be

denounced in the most vigorous terms,

nor that those persons responsible

should be prosecuted to the fullest ex-

tent that our laws allow.

Indeed, I have followed some of those

cases and those prosecutions, and it

seems to me that we are doing a pretty

good job of identifying and prosecuting

those persons who committed those of-

fenses. And I commend the FBI and the

District of Columbia police and the

other Agencies for their work.

It is natural to recoil. It is an imme-

diate thing. It comes over you without

your ability to stop it, the desire for

retribution. Who caused this awful

thing? How do we make them pay?

We recognize in the law—and I know

many of you are lawyers. Probably,

lawyers—some of you have been a law-

yer for 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, blind-

ing logic and reason. That is the dif-

ference between manslaughter and

murder.

Manslaughter is the killing of a

human being upon sudden and intense

provocation. But murder is done with

cold blood and reflective thought.

We are so understanding of the con-

cept that people’s minds can be over-

powered with emotion, where logic

does not immediately kick in, that we

have recognized examples that other-

wise would be hearsay, and said that,

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no, when you are driving down the

street and you look over at your wife

and you say: ‘‘Hey, you know what,

that guy is about to drive through the

red light and kill that person,’’ your

wife can testify to what you said be-

cause, even though it is technically

hearsay, it is an exception because it is

the event living through the person.

Why? No opportunity for reflective

thought.

There are all sorts of examples that

we recognize in the law for why people

immediately desire retribution, imme-

diately recognize in the law that people

can be overcome by events.

And you know, Senators of the

United States, they are not ordinary

people. They are extraordinary peo-

ple—in the technical sense, extraor-

dinary people.

When I was growing up in suburban

Philadelphia, my parents were big fans

of Senator Everett Dirksen from Illi-

nois. Senator Dirksen recorded a series

of lectures that my parents had on a

record. We still know what records are,

right? The thing you put the needle

down on and you play it.

And here is little Bruce—8, 9, 10 years

old—listening to this back in the 1960s.

And I would be listening to that voice.

If you ever heard Everett Dirksen’s

voice, it is the most commanding,

gravelly voice that just oozes belief

and sincerity. He must have been a

phenomenal U.S. Senator. He doesn’t

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,’’

which was the name of the album, and,

now, of course, as a sign of the times,

gallant men and women.

I would watch television, and I would

watch Senator Goldwater or Senator

Byrd or Senator Mansfield or Senator

Dole, and I would be fascinated by

these great men.

And everybody’s parents say this

when they are growing up: You could

grow up to be a U.S. Senator. You

could do that. They are just men and

women like you are.

Well, then, Everett Dirksen tells us

that they are not; they are gallant men

and women who do extraordinary

things when their country needs them

to do it.

U.S. Senators really are different. I

have been around U.S. Senators before.

Two of them in this room from Penn-

sylvania, I would like to think, are

friendly toward me or at least friends

of mine when we are not politically ad-

verse. And I have been around their

predecessors.

One thing I have discovered, whether

it be Democrats or Republicans, U.S.

Senators are patriots first—patriots

first. They love their country. They

love their families. They love the

States that they represent.

There isn’t a Member in this room

who has not used the term ‘‘I represent

the great State of’’—fill in the blank.

Why? Because they are all great? Yeah.

But you think yours is greater than

others because these are your people.

These are the people who sent you here

to do their work. They trusted you

with the responsibility of representa-

tive government.

You know, I feel proud to know my

Senators—Senator C

ASEY

, up here in

the back, and Senator T

OOMEY

, over to

the left.

You know, it is funny. This is an

aside, but it is funny. Do you ever no-

tice how, when you are talking or you

hear others talking about you, when

you are home in your State, they will

say, ‘‘You know, I talked to my Sen-

ator’’ or ‘‘I talked to somebody on the

staff of my Senator’’? It is 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 is not just P

OOMEY

of Pennsylvania. That is my

Senator from Pennsylvania. Or B

ASEY

from Scranton—that is my Sen-

ator.

And you like that. People like that.

The people back home really do.

U.S. Senators have a reputation, and

it is deserved. They have a reputation

for coolheadedness, being erudite—the

men and women who we send from

back home to DC to look after our in-

terests. We feel a sense of ownership

and a sense of pride in our Senators.

There is plenty of times I have been

around in political gatherings where I

hear, There is no way Senator T

OOMEY

is going to allow that—I don’t mean to

pick you on, P

—or There is no way

Senator C

ASEY

is going to allow that—

because we feel pride.

When something bad is potentially in

the wind, we expect our U.S. Senators

not reacting to popular will and not re-

acting to popular emotions. We expect

them to do what is right, notwith-

standing what is immediately and ex-

pedient that the media tells us is the

topic of the day.

So Senators are patriots. Senators

are family men and women. They are

fierce advocates for the great State

which they represent. And somewhere

far down that list of attributes, way

below patriot and way below love of

family and country and way below

fierce advocates for their States, far

down—at least that is what I thought,

anyway, and I still think that. Some-

where far down that list, Senators have

some obligation to be partisans, to rep-

resent a group of beliefs that are simi-

lar 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 dif-

ferent points of view. And I dare say

that Senator S

CHUMER

and Senator

ONNELL

represent those things in

this body and make sure that every-

thing is talked out and robustly de-

bated in this room before United States

Senators make a decision of extreme

importance to the people they rep-

resent.

I know you aren’t allowed to talk,

but I don’t see either one of them

jumping up and saying I am wrong

about that because I think that that is

what happens. I think United States

Senators try to listen to each other’s

views. I think United States Senators

try to do what is right for the country,

and far down is partisanship.

In our system of government, and if

you read the Federalist Papers—we are

very fortunate because the Federalist

Papers were authored as an expla-

nation for why it is the States, the

original States, should adopt the Con-

stitution. These were persuasive docu-

ments about why the Constitution is a

good thing, because if the individual

State legislatures didn’t adopt the Con-

stitution, we would not have it.

So Mr. Jay and Mr. Madison and Mr.

Hamilton, they had an incentive to ex-

plain what they were thinking when

they wrote it because they are explain-

ing to other erudite people who rep-

resent individual States why it is that

they feel that this is the right thing to

do. And, in fact, as many of you well

know, Madison had to promise that

there would be a Bill of Rights imme-

diately upon adoption or we wouldn’t

have a Constitution. Even then there

was horse trading going on in the legis-

lative body of the United States.

The other day, when I was down here

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. I got lost then,

and I still do.

But in studying the Constitution in

all the years I was a prosecutor, where

so many things depend on interpreta-

tions of phrases in the Constitution, I

learned that this body, which one of

my worthy colleagues said is the great-

est deliberative body in the entire

world—and I agree—that was—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 pin-

nacle of government with the responsi-

bility that it has today, it was hap-

pening in Athens and it was happening

in Rome.

Republicanism, the form of govern-

ment republicanism, throughout his-

tory has always and without exception

fallen 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 are certainly

others, probably, that are smaller

countries that lasted for less time that

I don’t know about off the top of my

head.

But each one of them, once there was

the vacuum created that the greatest

deliberative bodies—the Senate of

Greece sitting in Athens, the Senate of

Rome—the moment that they devolved

into such partisanship, it is not as

though they ceased to exist; they

ceased to exist as representative de-

mocracy, both replaced by totali-

tarianism.

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CONGRESSIONAL RECORD — SENATE S599 February 9, 2021

Paraphrasing the famous quote from

Benjamin Franklin, who, as a Philadel-

phian, I feel as though I can do that be-

cause he is my Founding Father too:

He who would trade liberty for some

temporary security deserves neither

liberty nor security. If we restrict lib-

erty to attain security, we will lose

both.

And isn’t the way we have enshrined

in the Constitution the concepts of lib-

erty that we think are critical, the

very concepts of liberty that drove us

to separate from Great Britain—and I

can’t believe these fellas are quoting

what happened prerevolution as though

that is somehow of value to us.

We left the British system. If we are

really going to use prerevolutionary

history in Great Britain, then the

precedent is we have a Parliament and

we have a King. Is that the precedent

that we are heading for?

Now, it is not an accident that the

very first liberty—if you grant me that

our liberties are enumerated 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 Amend-

ment, which says: ‘‘Congress shall

make no law . . . abridging freedom of

speech,’’ and et cetera. ‘‘Congress shall

make no law . . . ’’—the very first one,

the most important one, the ability to

have free and robust debate, free and

robust political speech.

Something that Mr. R

ASKIN

and his

team brought up is that it is somehow

a suggestion from former President

Trump’s team that when various public

officials were not denouncing the vio-

lence that we saw over the summer,

that that was somehow the former

President equating that speech to his

own. Not at all. Exactly backwards.

I saw a headline: Representative so-

and-so seeks to walk back comments

about—I forget what it was—something

that bothered her. I was devastated

when I saw that she thought it was

necessary to go on television yesterday

or the day before and say she needs to

walk back her comments.

She should be able to comment as

much as 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 per-

mitted to say they agree. That is what

we broke away from Great Britain in

order to be able to do: to be able to say

what we thought in the most robust po-

litical debate.

My colleague Mike van der Veen is

going to give you a recitation on the

First Amendment law of the United

States. I commend to your attention

the analysis that he is going to give

you.

I don’t expect and I don’t believe that

the former President expects anybody

to walk back any of the language. If

that is 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

court and defend them if anything hap-

pens to them as a result. If the govern-

ment takes action against that State

representative or that U.S. Representa-

tive who wants to walk back her com-

ments, if the government takes action

against her, I have no problem going

into court and defending her right to

say those things, even though I don’t

agree with them.

This trial is not about trading liberty

for security. It is about trading—it is

about suggesting that it is 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 imple-

ment the freedoms that we enjoy.

This trial is about trading liberty for

the security from the mob? Honestly,

no, it can’t be. We can’t be thinking

about that. We can’t possibly be sug-

gesting that we punish people for polit-

ical speech in this country. And if peo-

ple go and commit lawless acts as a re-

sult of their beliefs and they cross the

line, they should be locked up.

And, in fact, I have seen quite a num-

ber of the complaints that were filed

against the people who breached the

Capitol. Some of them charged con-

spiracy. Not a single one I noticed

charged conspiracy with the 45th Presi-

dent of the United States, probably be-

cause prosecutors have an ethical re-

quirement that they are not allowed to

charge people with criminal offenses

without probable cause. You might

consider that.

And if we go down the road that my

very worthy adversary here, Mr.

ASKIN

, asks you to go down, the flood-

gates will open. I was going to say it

will—instead of ‘‘floodgates,’’ I was

going to say originally it will ‘‘release

the whirlwind,’’ which is a Biblical ref-

erence, but I subsequently learned,

since I got here, that that particular

phrase has already been taken, so I fig-

ured I had better change it to ‘‘flood-

gates.’’

But the political pendulum will shift

one day. This Chamber and the Cham-

ber across the way will change one day,

and partisan impeachments will be-

come commonplace.

You know, until the impeachment of

Bill Clinton, no one alive had ever

lived through a Presidential impeach-

ment, not unless some of you are 150

years old. Not a single person alive had

lived through a Presidential impeach-

ment. Now most of us have lived

through three of them.

This is supposed to be the ultimate

safety valve, the last thing that hap-

pens, the most rare treatment, and a

session where this body is sitting as a

Court of Impeachment among the most

rare things it does.

So the slippery-slope principle will

have taken hold if we continue to go

forward with what is happening today

and scheduled to happen later this

week. And after 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

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 pres-

sure is driven by the need for imme-

diate action because something under

contemporary community standards

really horrific happened and the people

represented by the Members of the

United States House of Representatives

become incensed.

And what do you do if a Federal

issue—you are back in suburban Phila-

delphia and something happens that

makes the people who live there in-

censed? You call your Congressman.

And your Congressman, elected every 2

years, with their pulse on the people of

their district, 750,000 people, they re-

spond. And, boy, do they respond. The

Congressman calls you back, a staffer

calls you back, and you get all the in-

formation that they have on the issue.

Sometimes you even get invited to sub-

mit language that would improve

whatever the issue is.

Well, when the pendulum swings, per-

haps the next person who gets im-

peached and is sent here for you to con-

sider is Eric Holder during Fast and

Furious, the Attorney General of the

United States, or any other person

whom the other party considers to be a

political danger to them down the road

because of their avowed 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—he has had a tre-

mendous career, and he might be some-

body whom some Republicans some-

where might be worried about. So

maybe the next person they go after is

Eric Holder.

And, you know, the Republicans

might regain the House in 2 years. His-

tory does tend to suggest that the

party out of power in the White House

does well in the midterm elections.

Certainly, the 2020 elections, the House

gained—the House majority narrowed,

and there was a gain of Republicans.

The Members of the House—they

have to worry about these con-

sequences because if they don’t react

to whatever the problem of the day is,

somebody in that jurisdiction there—

somebody is going to say: If you make

me the Congressman, I react to that.

And that means that the sitting Mem-

ber has to worry about it because their

terms are short.

And it is not just Members of the

House of Representatives with their

short—with their short terms. I saw on

television the last couple of days the

honorable gentleman from Nebraska,

Mr. S

ASSE

—I saw that he faced back-

lash back home because of a vote he

made some weeks ago, that the polit-

ical party was complaining about a de-

cision he made as a United States Sen-

ator.

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You know, it is interesting because I

don’t want to steal the thunder from

the other lawyers, but Nebraska, you

are going to hear, is quite a judicial-

thinking place, and just maybe Senator

ASSE

is onto something, and you will

hear about what it is that the Ne-

braska courts have to say about the

issue that you all are deciding this

week. There seem to be some pretty

smart jurists in Nebraska, and I can’t

believe a United States Senator doesn’t

know that.

A Senator like the gentleman from

Nebraska, whose Supreme Court his-

tory is ever present in his mind, and

rightfully so, he faces the whirlwind

even though he knows what the judici-

ary 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 in-fighting that led to the down-

fall of the Greek Republic and the

Roman Republic and the American Re-

public 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 weeks while a new

President is trying to fill out his ad-

ministration, but shall the business of

the Senate and the Nation come to a

halt because impeachment becomes the

rule rather than the rare exception? I

know you can see this as a possibility

because not a single one of you ever

thought that you would be doing a sec-

ond impeachment inside of 13 months,

and the pressure will be enormous to

respond in kind.

To quote Everett Dirksen, the gal-

lant men and women of the Senate will

not allow that to happen. And this Re-

public will endure because the top re-

sponsibility of the United States Sen-

ator and the top characteristic that

you all have in common—and, boy, this

is a diverse group, but there isn’t a sin-

gle one of you who, A, doesn’t consider

yourself a patriot of the United States,

and 2, there isn’t a single one of you

who doesn’t 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 con-

cerning impeachment documents, Arti-

cles of Impeachment, rule XXIII, says

that such documents cannot be divided.

You might have seen that we wrote

that in the answer. It might have been

a little legalistic or legalese for the

newspapers to opine on very much, but

there is some significance.

The House managers, clever fellows

that they are, they cast a broad net.

They need to get 67 of you to agree

they are right. And that is a good

strategy. I would use the same strat-

egy, except there is a rule that says

you can’t use that strategy. You see,

rule XXIII says that the Article of Im-

peachment is indivisible, and the rea-

son why that is significant is you have

to agree that every single aspect of the

entire document warrants impeach-

ment because it is an all-or-nothing

document. You can’t cut out parts that

you agree with that warrant impeach-

ment and parts that don’t, because it is

not divisible. It flat-out says in the

Senate rules it is not divisible.

Now, previous impeachments, like

President Clinton’s, said the President

shall be found guilty of high crimes

and misdemeanors for engaging in one

or more of the following and then gives

a list, so all you had to do was win one,

but they didn’t do that here. It has to

be all or nothing.

Some of these things that you are

asked to consider might be close calls

in your mind, but one of them is not.

The argument about the 14th Amend-

ment is absolutely ridiculous. The

House managers tell you that the

President should be impeached because

he violated the 14th Amendment. Here

is what the 14th Amendment says:

No person shall be a Senator or Represent-

ative in Congress, or elector of President and

Vice President, or hold any office, civil or

military, under the United States, or [any

other] state, who, having previously taken

an oath, as a member of Congress, or as an

officer of the United States, or [as] a member

of any state legislature, or as an executive or

judicial officer of any state, to support the

Constitution of the United States, [and]

shall have engaged in insurrection or rebel-

lion against the same, or given aid or com-

fort to the enemies thereof. But Congress

may vote by two-thirds of each House [to] re-

move such disability.

It doesn’t take a constitutional

scholar to recognize that that is writ-

ten for people who fought for the Con-

federacy or who were previous military

officers or were in the government of

the Confederacy, and it doesn’t take a

constitutional scholar to require that

they be convicted first in a court, with

due process of law. So it never—that

question can never be ripe until those

things have happened.

If you agree with those arguments—

and I know you will all get your Con-

stitutions out and you will read it, and

if you agree with those arguments, the

suggestion that the 14th Amendment

applies here is ridiculous. And if you

come to that conclusion, then, because

the managers have not separated out

the counts, any counts within the Arti-

cle of Impeachment, the whole thing

falls.

I didn’t write that. They are married

to that. I wrote it out in individual re-

sponses because I didn’t know how to

respond to the cast-the-wide-net effort.

And fortunately Senators sometime in

the past realized that you can’t do that

because you passed a rule that says:

Hey, you can’t do that. So that is why

it is flawed. It is flawed in other ways,

too, and my colleague will explain

that.

I was struck—I thought the House

managers who spoke earlier were bril-

liant speakers, and I made some notes.

They will hear about what I think

about some of the things they said

later when I am closing the case, but I

thought they were brilliant speakers,

and I loved listening to them. They are

smart fellows. But why are the House

managers afraid and why is the major-

ity—the House of Representatives

afraid of the American people?

I mean, let’s understand why we are

really here. We are really here because

the majority in the House of Rep-

resentatives does not want to face Don-

ald Trump as a political rival in the fu-

ture. That is the real reason we are

here. That is why they have to get over

the jurisdictional hurdle, which they

can’t get over, but that is why they

have to get over that in order to get to

the part of the Constitution that al-

lows removal. So that is the—nobody

says it that plainly, but unfortunately

I have a way of speaking that way.

And the reason that I am having

trouble with the argument is, the

American people just spoke, and they

just changed administrations. So in the

light most favorable to my colleagues

on the other side of the aisle here,

their system works. The people are

smart enough—in the light most favor-

able to them, they are smart enough to

pick a new administration if they don’t

like the old one, and they just did, and

he is down there at Pennsylvania Ave-

nue now, probably wondering, how

come none of my stuff is happening up

at the Capitol?

Why do the Members of the House of

Representatives—the majority of the

House of Representatives—why are

they afraid of the very people who sent

them to do this job, the people they

hope will continue to send them back

here? Why are they afraid that those

same people who were smart enough to

pick them as their Congressmen aren’t

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?

In fact, this happens all the time

when there are changes in administra-

tions from one-term Presidents to oth-

ers. Well, Nixon was sort of 1

⁄

term,

but Nixon to Ford, Ford to Carter, Car-

ter to Reagan, Bush 41 to Clinton. It

happens. The people get tired of an ad-

ministration they don’t want, and they

know how to change it. And they just

did.

So why think that they won’t know

how to do it in 2024 if they want to, or

is that what the fear is? Is the fear that

the people in 2024, in fact, will want to

change and will want to go back to

Donald Trump and not the current oc-

cupant of the White House, President

Biden? Because all of these other

times, the people were smart enough to

do it, choose who the President should

be, and all these other times, they were

smart enough to choose who their

Members of Congress were—and, by the

way, choose you all as well—but they

are not smart enough to know how to

change the administration, especially

since they just did. So it seems pretty

evident to me that they do know how.

It has worked 100 percent of the time.

One hundred percent of the time in the

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United States, when the people had

been fed up with and had enough of the

occupant of the White House, they

changed the occupant of the White

House.

Now, I know that one of the

strengths of this body is its delibera-

tive action.

I saw Senator M

ANCHIN

on the TV the

other night talking about the fili-

buster. And the main point was that

Senator M

ANCHIN

was explaining to

those of us who don’t operate here all

the time, that this body has an obliga-

tion to try to reach consensus across

the aisle to legitimize the decisions it

makes. Obviously, he is capable of

making his own pronouncements on it,

but that is what came across on the

television. And I think that that is a

good way of saying why the Senate of

the United States is different than

other places.

You know, the Constitution is a doc-

ument designed to protect the rights of

the minority, not the rights of the ma-

jority. Congress shall make no law

abridging all of these things. That is

because those were 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 give my col-

league Mr. Schoen an opportunity to

explain to all of us the legal analysis

on jurisdiction.

I will be quite frank with you. We

changed what we were going to do on

account that we thought that the

House managers’ presentation was well

done, and I wanted you to know that

we have responses to those things.

I thought that what the first part of

the case was, 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 man-

agers—who was a formal criminal de-

fense attorney—seemed to suggest that

there was something nefarious that we

were discussing jurisdiction in trying

to get the case dismissed, but this is

where it happens in the case because

jurisdiction is the first thing that has

to be found.

We have counterarguments to every-

thing that they raised, and you will

hear them later on in the case from Mr.

van der Veen and from myself.

But on the issue of jurisdiction—the

scholarly issue of jurisdiction—I will

leave you with this before I invite

David to come up and give you the eru-

dite explanation. Some of this was

shown on the screen, but article I, sec-

tion 3 says:

Judgment in Cases of Impeachment shall

not extend further than to removal from Of-

fice, and disqualification to hold . . . any Of-

fice of honor, Trust or Profit under the

United States: but the Party convicted shall

nevertheless be liable and subject to Indict-

ment, Trial, Judgment and Punishment, ac-

cording to law.

So this idea of a January amnesty is

nonsense. If my colleagues on this side

of the Chamber actually think that

President Trump committed a criminal

offense—and let’s understand a high

crime is a felony and a misdemeanor is

a misdemeanor. The words haven’t

changed that much over 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 into January, the end of his

term, and just go away scot-free. The

Department of Justice does know what

to do with such people. And so far, I

haven’t seen any activity in that direc-

tion.

And not only that, the people who

stormed this building and breached it

were not accused of conspiring with the

President. But the section I read—

‘‘Judgment’’—in other words, the bad

thing that can happen—the ‘‘Judgment

in Cases of Impeachment’’—i.e., what

we are doing—‘‘shall not extend further

than . . . removal from Office.’’

What is so hard about that? Which of

those words are unclear?

Shall not extend further than removal . . .

from Office.

President Trump no longer is in of-

fice. The object of the Constitution has

been achieved. He was removed by the

voters.

Mr. Schoen, are you ready—now that

I have taken all of his time.

Thank you, Mr. President.

The PRESIDENT pro tempore. Mr.

Schoen.

Mr. Counsel SCHOEN. Mr. President,

leaders.

I stand before you in what I always

thought as the hallowed ground of de-

mocracy. In this room, American lives

have been changed so dramatically in

just my lifetime through so many of

your legislative initiatives from the

Civil Rights Act, when I was a child,

through, most recently, the FIRST

STEP Act—laws that have provided

major opportunities for Americans to

move forward and upward and more

fully enjoy all of the attributes of what

has been the greatest Nation on Earth.

I have seen the changes these laws

have made to my clients every day for

the past 36 years. These laws have en-

abled me to fight for their enjoyment

of a fair stake in our American project.

I stand before a group of 100 United

States Senators who have chosen to

serve your country from all corners of

this great Nation, giving up all sorts of

professions, time with family, and per-

haps other more lucrative opportuni-

ties to serve your country.

Mr. President, you are a man who so

honorably served this Nation in the

Senate and in public service before

your tenure here. It is an honor to ap-

pear 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 the in-

stitution of the Presidency that I be-

lieve even convening these proceedings

indicates. The joy I 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, sa-

cred Constitution and to the American

people on both sides of the great divide

that now characterizes our Nation.

Esteemed 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 here.

And as a matter of policy, it is wrong

as wrong can be for all of us as a na-

tion.

We are told by those who favor hav-

ing these proceedings that we have to

do it for accountability. But anyone

truly interested in real accountability

for what happened at the Capitol on

January 6 would, of course, insist on

waiting for a full investigation to be

completed. Indeed, one is underway in

earnest already, intent on getting to

the bottom of what happened.

Anyone interested in ensuring that it

is truly the one or ones responsible

from whom accountability is sought

would more than willingly wait for the

actual evidence, especially with new

evidence coming in every day about

preplanning, about those who were in-

volved, and about their agenda bearing

no relationship to the claims made

here.

They say you need this trial before

the Nation can heal, that the Nation

cannot heal without it. I say our Na-

tion cannot possibly heal with it. With

this trial, you will open up new and

bigger wounds across the Nation, for a

great many Americans see this process

for exactly 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 Amer-

ican voters and those who dare to share

their political beliefs and vision of

America. They hated the results of the

2016 election and want to use this im-

peachment process to further their po-

litical agenda.

These elitists have mocked them for

4 years. They called their fellow Ameri-

cans who believe in their country and

their Constitution ‘‘deplorables.’’ And

the latest talk is that they need to

deprogram those who supported Donald

Trump and 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 po-

litical 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. And they know this so-

called trial will tear the country in

half, leaving tens of millions of Ameri-

cans feeling left out of the Nation’s

agenda, as dictated by one political

party that now holds the power in the

White House and in our national legis-

lature.

But they are proud Americans who

never quit getting back up when they

are down, and they don’t take dictates

from another party based on partisan

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CONGRESSIONAL RECORD — SENATES602 February 9, 2021

force-feeding. This trial will tear this

country apart, perhaps like we have

only seen once before in our history.

And to help the Nation heal, we now

learn that the House managers, in

their wisdom, have hired a movie com-

pany and a large law firm to create,

manufacture, and splice for you a pack-

age designed by experts to chill and

horrify you and our fellow Americans.

They want to put you through a 16-

hour presentation over 2 days, focusing

on this as if it were some sort of blood

sport. And to what end? For healing?

For unity? For accountability? Not for

any of those. For, surely, there are

much better ways to achieve each. It

is, again, for pure, raw, misguided par-

tisanship that makes them believe

playing to our worst instincts somehow

is good.

They don’t need to show you movies

to show you that the riot happened

here. We will stipulate that it hap-

pened, and you know all about it.

This is a process fueled irresponsibly

by base hatred by these House man-

agers and those who gave them their

charge, and they are willing to sac-

rifice our national character to ad-

vance their hatred and their fear that

one day they might not be the party in

power. They have a very different view

of democracy and freedom.

From Justice Jackson who once

wrote:

[But][F]reedom to differ is not limited to

things that do not matter much. That would

be a mere shadow of freedom. The test of its

substance is the right to differ as to things

that touch at the heart of the existing order.

They have a very different view of de-

mocracy and freedom. This is nothing

less than the political weaponization of

the impeachment process—pure, raw

sport, fueled by the misguided idea of

party over country when, in fact, both

will surely suffer.

I can promise you that if these pro-

ceedings go forward, everyone will look

bad. You will see and hear many Mem-

bers of our Congress saying and doing

things they must surely regret. But,

perhaps, far worse than a moment of

personal shame in a world in which his-

tory passes from our memories in a

moment, our great country, a model

for all the world, will be far more di-

vided and our standing around the

world will be badly broken. Our arch

enemies who pray each and every day

for our downfall will watch with glee,

glowing in the moment as they see you

at your worst and our country in inter-

nal 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, con-

stitutional theory that departs clearly

from the language of the Constitution

itself and holds—and this is in their

brief—that any civil officer who ever

dares to want to serve his or her coun-

try must know that they will be sub-

ject to impeachment long after their

service in office has ended, subject only

to the political and cultural landscape

of the day that is in operation at any

future time. This is exactly the posi-

tion taken by the House managers at

page 65 of their brief—unprecedented,

radical position. They unabashedly say

so.

Imagine the potential consequences

for civil officers you know and who you

believed served so honorably but who,

in the view of a future Congress, might

one day be deemed to be impeachment

worthy. Imagine it now because your

imagination is the only limitation.

The House managers tell you a cor-

rect reading of the impeachment power

under the Constitution is that it has no

temporal limit and can reach back in

time without limitation to target any-

one who dared to serve our Nation as a

civil officer. Now add that to their de-

mand that you Members put your im-

primatur on the snap impeachment

they returned in this case and can do

again in the future if you endorse it by

going forward with this impeachment

trial. This is an untenable combination

that literally puts the institution of

the Presidency directly at risk, noth-

ing less, and it does much more.

Under their unsupportable constitu-

tional theory and tortured reading of

the text, every civil officer who has

served is at risk of impeachment if any

given group elected to the House de-

cides that what was thought to be an

important service to the country when

they served now deserves to be can-

celed.

They have made clear in public state-

ments that what they really want to

accomplish here, in the name of the

Constitution, is to bar Donald Trump

from ever running for political office

again, but this is an affront to the Con-

stitution no matter who they target

today. It means nothing less than the

denial of the right to vote and the inde-

pendent right for a candidate to run for

elective political office, guaranteed by

the 1st and 14th Amendments to the

Constitution, using the guise of im-

peachment as 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 served as an

Ambassador to former President

Obama and has friends among you. He

described himself to his listeners as a

dyed-in-the-wool, lifelong Democrat,

but he said the idea of 100 people in

these circumstances deciding that tens

of millions of American voters cannot

cast their vote for their 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 jurisdic-

tion to conduct this trial of a former

President—a President no longer in of-

fice and now a private citizen. Any sin-

gle reason in our trial memorandum or

discussed today suffices, but I want to

start with a discussion of the funda-

mental due process lacking from the

start, and that would last through the

end if this goes forward because it is

this irretrievably flawed process and

its product—a dangerous snap impeach-

ment—that brings us here and that

threatens to send a message into the

future that we will all regret forever

and that will stain this body, which up

to now our Founding Fathers believed

was uniquely suited for the most dif-

ficult task of conducting an impeach-

ment trial, as Mr. Hamilton wrote in

Federalist No. 65.

These aren’t just niceties. I make no

apology for demanding in your name,

in the name of the Constitution, that

the rights to due process guaranteed

under the Constitution are adhered to

in a process as serious as this in our

national lives.

The denial of due process in this case,

of course, starts with the House of Rep-

resentatives. In this unprecedented

snap impeachment process, the House

of Representatives denied every at-

tribute of fundamental constitutional

due process that Americans correctly

have come to believe is part of what

makes this country so great. How and

why did that happen? It is a function of

the insatiable lust for impeachment in

the House for the past 4 years.

Consider this:

(Video footage.)

Mr. R

ASKIN

: I want to say this for Donald

Trump who I may well be voting to impeach.

Mr. Ellison: Donald Trump has already

done a number of things which legitimately

raise the question of impeachment.

Ms. W

ATERS

: I don’t respect this President,

and I will fight every day until he is im-

peached!

Mr. C

ASTRO

: That is grounds to start im-

peachment proceedings. Those are grounds

to start impeachment. Those are grounds to

start impeachment proceedings. Yes, I think

that’s grounds to start impeachment pro-

ceedings.

Mr. G

REEN

: I rise today, Mr. Speaker, to

call for the impeachment of the President of

the United States of America.

Ms. W

ATERS

: I continue to say, Impeach

him! Impeach 45! Impeach 45!

(People chanting: ‘‘Yeah.’’)

Mr. C

OHEN

: So we are calling upon the

House to begin impeachment hearings imme-

diately.

Mr. Commentator: On the impeachment of

Donald Trump, would you vote yes or no?

Ms. O

CASIO

-C

ORTEZ

: I would vote yes.

Ms. O

MAR

: I would vote to impeach.

Ms. T

LAIB

: Because we’re going to go in

there, and we’re going to impeach the [bleep

bleep]!

Mr. S

HERMAN

: The fact is I introduced Ar-

ticles of Impeachment in July of 2017.

Mr. G

REEN

: If we don’t impeach this Presi-

dent, he will get reelected.

Mr. C

OHEN

: My oath requires me to be for

impeachment, have impeachment hearings,

and leave a scarlet ‘‘I’’ on his chest.

Mr. B

OOKER

: The Representatives should

begin impeachment proceedings against this

President.

Ms. W

ARREN

: It is time to bring impeach-

ment charges against him. Bring impeach-

ment charges.

Mr. N

ADLER

: My personal view is that he

richly deserves impeachment.

Ms. T

LAIB

: We are here at an impeachment

rally, and we are ready to impeach the—

(People chanting: ‘‘Yeah.’’)

I can’t say it.

The relevant timeline in the House

reveals the rush to judgment.

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CONGRESSIONAL RECORD — SENATE S603 February 9, 2021

On the day following the January 6

riot, the House leadership cynically

sensed a political opportunity to score

points against the outgoing then-Presi-

dent Trump, and the Speaker de-

manded that Vice President Pence in-

voke the 25th Amendment, threatening

immediate impeachment for the Presi-

dent if Mr. Pence did not comply with

this extraordinary and extraordinarily

wrong demand.

Four days later, on January 11, 2021,

the instant Article of Impeachment

was introduced in the House. Speaker

ELOSI

then gave the Vice President

another ultimatum, threatening to

begin impeachment proceedings within

24 hours if he did not comply. Vice

President Pence rejected Speaker

ELOSI

’s demand, favoring instead ad-

herence to the Constitution and the

best interests of the Nation over a po-

litically motivated threat.

On January 12, Speaker P

ELOSI

an-

nounced who the nine impeachment

managers would be, and on January 13,

2021, just 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 in

history and, according 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 would be a grave under-

statement. It is not as if the House

Members who voted to impeach were

not mightily warned about the dangers

to the institution of the Presidency

and to our system of due process. They

were warned in the strongest of terms

from within their own ranks ada-

mantly, clearly, and in no uncertain

terms not to take this dangerous snap

impeachment course. Those warnings

were framed in the context of the con-

stitutional due process that was denied

here.

Consider the warnings given by one

Member during the House proceedings,

pleading with the other Members to ac-

cord this decision the due process the

Constitution demands.

This is Representative C

OLE

of Okla-

homa:

With only 1 week to go in his term, the

majority is asking us to consider a resolu-

tion impeaching President Trump, and they

do so knowing full well that even if the

House passes this 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 con-

templating today. Emotions are clearly run-

ning high and political divisions have never

been more apparent in my lifetime.

Said by Representative C

OLE

Mr. C

OLE

’s words on the floor empha-

sizing the care that must be taken with

respect to the consideration of the Ar-

ticle of Impeachment echo the con-

cerns by our Founding Fathers on this

subject.

Listen to this from Mr. Hamilton in

Federalist No. 65:

A well constituted court for the trial of

impeachments, is an object not more to be

desired than difficult to be obtained in a gov-

ernment wholly elective. . . . The prosecu-

tion of them, for this reason, will seldom fail

to agitate the passions of the whole commu-

nity, and to divide it into parties, more or

less friendly or inimical, to the accused. In

many cases, it will connect itself with the

pre-existing factions, and will inlist all their

animosities, partialities, influence and inter-

est on one side, or on the other; and in such

cases there will always be the greatest dan-

ger, that the decision will be regulated more

by the comparative strength of parties than

by the real demonstrations of innocence or

guilt.

Prescient thinking by Mr. Hamilton,

as we see often.

In what I say to you is a proof of the

need for due process, based on the criti-

cally serious nature of the singular

role the impeachment process has in

our government, Mr. Hamilton charac-

terized the consideration of an im-

peachment in these terms:

The delicacy and magnitude of a trust,

which so deeply concerns the political rep-

utation and existence of every man engaged

in the administration of public affairs, speak

for themselves.

This, too, is in Federalist No. 65.

Now back to the House and the warn-

ings against this rushed judgment in

this case.

Mr. C

OLE

of Oklahoma again. In the

name of healing, a path forward he said

our people so desperately need, he

warned that ‘‘the House is moving for-

ward erratically with a truncated proc-

ess that does not comport with the

modern practice and that will give

members no time to contemplate the

serious nature of action before us.’’

Mr. C

OLE

emphasized to his col-

leagues 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 House is fol-

lowing and because the Presidency

itself demands due process in the im-

peachment proceedings.’’

Congressman C

OLE

continued:

Unfortunately, the majority has chosen to

race to the floor with a new Article of Im-

peachment, forgoing any investigation, any

committee process or any chance for Mem-

bers to fully contemplate this course of ac-

tion before proceeding.

Mr. C

OLE

complained that ‘‘the ma-

jority 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 impeach-

ment, and the failure to do so does a great

disservice to this institution and to this

country.

Mr. C

OLE

complained right on the

House floor that ‘‘rather than fol-

lowing the appropriate processes the

House has used in every modern im-

peachment, the majority is rushing to

the floor, tripping all over themselves

in their rush to impeach the President

a second time.’’ And in Mr. C

OLE

’s

words, it was doing so to ‘‘settle

scores.’’ He warned this snap impeach-

ment approach would cause great divi-

sion as the country looks ahead to the

start of a new administration.

He said to them:

In a matter as grave and consequential as

impeachment, shouldn’t we follow the same

process we have used in every modern im-

peachment 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 our action today.

Mr. C

OLE

then reached across the

aisle and credited a Member of this

body, Senator M

ANCHIN

, having voiced

similar sentiments about how ill-ad-

vised this rushed process was, sug-

gesting that the underlying events

were a matter for the judicial system

to investigate, not one for a rushed po-

litical process.

Finally, Mr. C

OLE

admonished his fel-

low House Members, telling them:

We need to recognize that we are following

a flawed process.

The alarm Mr. C

OLE

sounded went

unheeded.

Now let us consider the process in

the House that actually was due. The

House managers assert in their memo-

randum that ‘‘[t]he House serves as a

grand jury and prosecutor under the

Constitution.’’ They told you that

again today. If this is accurate, then

they highlight the complete failure to

adhere to due process.

One should not diminish the significance of

impeachment’s legal aspects, particularly as

they relate to the formalities of the criminal

justice process. It is a hybrid of the political

and the legal, a political process moderated

by legal formalities.

This is a quote, Richard Broughton.

The Fifth Amendment to the United

States Constitution provides, in rel-

evant part, that ‘‘no person shall be

. . . deprived of life, liberty or prop-

erty, without due process of law.’’ The

Supreme Court long ago recognized in

Matthews v. Eldridge that, at its core,

due process is about what we all want,

what we all have the right to demand—

fundamental fairness. One scholar,

Brian Owsley, has written 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 val-

ues. And, of course, we know that the

Supreme Court has recognized that due

process protections attend congres-

sional investigations. While Congress is

empowered to make its own rules of

proceeding, it may not make rules that

ignore constitutional restraints or vio-

late fundamental rights.

While the case law is limited in

terms of spelling out what due process

looks like in impeachment hearings

and, of course, in the Nixon case—Wal-

ter, not Richard—we know that there

is a great deal of leeway afforded Con-

gress with respect to its impeachment

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CONGRESSIONAL RECORD — SENATES604 February 9, 2021

rules. It is clear that the fundamental

principles that underlie our under-

standing of what due process must al-

ways look like apply.

In Hastings v. United States, a DC

court case vacated on different

grounds, they address the matter,

clearly concluding that the due process

clause applies to impeachment pro-

ceedings and that it imposes an inde-

pendent constitutional constraint on

how the Senate exercises its sole power

to try all impeachments under article

I, section 3, clause 6.

The court wrote in Hastings:

Impeachment is an extraordinary remedy.

As an essential element of our 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-

word whenever a branch of the United States

Government conducts a trial, whether it be

in a criminal case, a civil case or a case of

impeachment.

A 1974 Department of Justice memo

suggested the same view, opining that

‘‘whether or not capable of judicial en-

forcement, due process standards would

seem to be relevant to the manner of

conducting an impeachment pro-

ceeding.’’

More specifically, as the Hastings

court described it, ‘‘one of the key

principles that lies at the heart of our

constitutional democracy: fairness.’’

Again, fairness.

The Supreme Court’s ‘‘precedents es-

tablish the general rule that individ-

uals must receive notice and an oppor-

tunity to be heard before the govern-

ment deprives them’’ of a constitu-

tionally protected interest. It is also

true that ‘‘in any proceeding that may

lead to deprivation of a protected in-

terest, it requires fair procedures com-

mensurate with the interests at

stake.’’

Impeachment proceedings plainly in-

volve deprivations of property and lib-

erty interests protected by the due

process clause, and the House surely

seeks to strip Donald Trump of his

most highly cherished constitutional

rights, including the right to be eligi-

ble to hold public office again, should

he so choose.

Due process must apply, and, at a

minimum, due process in the impeach-

ment process must include that the

evidence must be disclosed to the ac-

cused, and the accused must be per-

mitted an opportunity to test and con-

front the evidence, particularly

through ‘‘the rights to confront and

cross-examine witnesses,’’ which ‘‘have

long been recognized as essential to

due process.’’ In almost every setting

where important decisions turn on

questions of fact, due process requires

an opportunity to confront and cross-

examine.

It is unfathomable that the Framers,

steeped in the history of Anglo-Amer-

ican jurisprudence, would create a sys-

tem that would allow the Chief Execu-

tive and Commander in Chief of the

Armed Forces to be impeached based

on a process that developed evidence

without providing any of the elemen-

tary procedures that the common law

developed over centuries for ensuring

the proper testing of evidence in an ad-

versarial process. We would never

countenance such a system in this

country.

Current Members of the House and

Senate leadership are themselves on

record repeatedly confirming these

procedural due process requirements.

Indeed, Congressman N

ADLER

is on

record asserting that, in the context of

the House impeachment investigation,

due process includes the ‘‘right to be

informed of the law, of the charges

against you, to call your own wit-

nesses, and to have the assistance of

counsel.’’

Then-President Trump was not given

any semblance of the due process Con-

gressman N

ADLER

clearly believes he

deserves, based on the Congressman’s

description of due process, that must

be afforded to an accused in an im-

peachment proceeding, as reflected in

the statement he made relating to an-

other impeachment in 1998. No reason

was found for the apparent change in

the Congressman’s point of view with

respect to the two objects of the im-

peachments at issue.

These fundamental aspects of due

process have been honored as required

parts of modern impeachment protocol

since at least 1870. It is not seriously

debatable, nor should it be—nor should

it be—by any American legislator.

In spite of all this, the House leader-

ship defied all the norms and denied

the then-President all of his basic and

constitutionally protected rights. With

then-President Donald Trump, the

House impeachment procedure lacked

any semblance of due process whatever.

It simply cannot be credibly argued to

the country, and we do not make spe-

cial rules for different targets. It is the

very integrity of the institution that

suffers when we do, and that is what

the House leadership knowingly has

caused.

A review of the House record revealed

that the Speaker streamlined the im-

peachment process—H. Res. 24—to go

straight to the floor for a 2-hour debate

and a vote, without the ability for

amendments. The House record reflects

no committee hearing, no witnesses, no

presentation or cross-examination of

evidence, and no opportunity for the

accused to respond or even have coun-

sel present to object.

As the New York Times recently re-

ported, ‘‘there were no witness inter-

views, no hearings, no committee de-

bates and no real additional fact find-

ing.’’

House managers claim the need for

impeachment was so urgent that they

had to rush the proceedings, with no

time to spare for a more thorough in-

vestigation or, really, any investiga-

tion at all.

But that claim is belied by what hap-

pened or didn’t happen next. The House

leadership unilaterally and by choice

waited another 12 days to deliver the

Article to this Senate to begin the trial

process. In other words, the House

leadership spent more time holding the

adopted Article than it did on the

whole process leading up to the adop-

tion of the Article.

That intentional delay, designed to

avoid having the trial begin while Mr.

Trump was still President, led to yet

another egregious denial of due proc-

ess. Article I, section 3, clause 6 of our

Constitution, of course, provides, in

pertinent part, that:

The Senate shall have the sole Power to

try all impeachments. When sitting for that

Purpose, they shall be on Oath or Affirma-

tion. When the President of the United

States is tried, the Chief Justice shall pre-

side.

By intentionally waiting until Presi-

dent Trump’s term of office expired be-

fore delivering the Article of Impeach-

ment to the Senate to initiate trial

proceedings, Speaker P

ELOSI

deprived

then-President Trump of the express

constitutional right—and the right

under the Senate’s own rule IV—to

have the Chief Justice of the United

States preside over his trial and wield

the considerable power provided for in

the Rules of Procedure and Practice in

the Senate when sitting on impeach-

ment trials.

That power includes, under rule V,

the Presiding Officer’s exclusive right

to make and issue all orders; under

rule VII, to make all evidentiary orders

subject to objection by a Member of

the Senate.

We say, respectfully, that this inten-

tional delay by Speaker P

ELOSI

, such

that in the intervening period, Presi-

dent Trump became private citizen Mr.

Trump, constitutes a lapse or waiver of

jurisdiction here, for Mr. Trump no

longer is ‘‘the President’’ described as

subject to impeachment in article I,

section 3, clause 6 and in article II, sec-

tion 4, and this body, therefore, has no

jurisdiction as a function of that addi-

tional due process violation by Speaker

ELOSI

Moreover, with all due respect, then-

President Trump suffered a tangible

detriment from Speaker P

ELOSI

’s ac-

tions, which violates not only his

rights to due process of law, but also

his express constitutional right to have

the Chief Justice preside.

That tangible detriment includes the

loss of the right to a conflict-free, im-

partial Presiding Officer—with all due

respect—the very purpose behind re-

quiring the Chief Justice to preside

over the President’s impeachment

trial, along with the other benefits of

having the two branches combined—

the Chief Justice from the Judiciary

and the Senate—for the impeachment

trial of the President, reflected in Fed-

eralist 66, one of the reasons the Chief

Justice was chosen for that task.

Mr. Trump now faces a situation in

which the Presiding Officer will serve

as both judge, with all the powers that

the rules endow him with, and juror

with a vote. And beyond that, the Pre-

siding Officer, although enjoying a life-

long, honorable reputation, of course,

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CONGRESSIONAL RECORD — SENATE S605 February 9, 2021

has been Mr. Trump’s vocal and ada-

mant opponent throughout the Trump

administration. And, in fact, in the

very matter on trial, the Presiding Of-

ficer, respectfully, already has publicly

announced his fixed view before hear-

ing any argument or evidence that Mr.

Trump must be convicted on the Arti-

cle of Impeachment before the Senate

and, indeed, that Members in both par-

ties have an obligation to vote to con-

vict, as well.

Nowhere in this great country would

any American—and, certainly, not this

honorable Presiding Officer—consider

this scenario to be consistent with any

stretch of the American concept of due

process and a fair trial and certainly

not even the appearance of either.

By no stretch of the imagination

could any fairminded American be con-

fident that a trial so conducted would

or could be the fair trial promised by

the leader.

While most procedural aspects of a

Senate impeachment trial may be non-

justiciable political questions, this is

not an excuse to ignore what law and

precedent clearly require. The present

situation either presents a violation of

the constitutional text found in the ar-

ticles mentioned above that require the

Chief Justice to preside when the

President is on trial or it is a clear de-

nial of due process and fair trial rights

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 process

in the House. It should be dismissed be-

cause of Speaker P

ELOSI

’s intentional

abandonment or waiver of jurisdiction,

if the House ever acquired jurisdiction,

and the Article should be dismissed be-

cause the trial in the Senate of a pri-

vate citizen is not permitted, let alone

with the conflicts just described that

attend this proceeding.

Finally, on the subject of due process

in this matter, I say the following:

This is our Nation’s sacred Constitu-

tion. It has served us well since it was

written, and it has been amended only

through a careful process. It is a docu-

ment unique in all the world. It is a

foundational part of what makes the

United States a beacon of light among

the other nations of the world. It not

only has room for a tremendous vari-

ety of perspectives on the philosophical

and political direction our country

should take, it encourages the advo-

cacy of our differences.

But we have long held that funda-

mental to its health and well-being

and, therefore, to ours as a nation, is

its insistence on due process for every

citizen. The emphasis on the right to

due process long ago was recognized as

its life breath, a primary guarantor of

its eternal viability as our political,

civic, and national guiding light.

We all well know that there are

many systems in other countries

around the world that do not offer any

semblance of the safeguards our con-

stitutional concept of due process pro-

vides. Some of them have chosen their

own handbooks, which direct their citi-

zens’ conduct on penalty of death. This

is one of them.

There can be no room for due process

in such a system as this or the system

would be lost. Snap decisions are re-

quired in a system like this to main-

tain power for one political philosophy

over all others in those kinds of sys-

tems.

But we as a nation have rejected

those systems and the kind of snap de-

cisions they demand to maintain con-

trol for one party, for one point of

view, and for an imposed way of life.

We choose to live freely under a con-

stitution that guarantees our freedom.

Other countries fear those freedoms

and seek to ensure adherence to a

party line in all civic, political, spir-

itual, and other affairs and to ensure

that the party line is toed. And those

systems have no place for due process.

Snap decisions that remove political

figures are the norm. Maintaining their

systems depend on it. That is not our

way in America and never must be.

We choose in America to live by our

Constitution and its amendments and

the due process this document demands

for every citizen among us. By putting

your imprimatur 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 dan-

gerous a proposition to countenance,

and you must resoundingly reject it by

sending the message now that this pro-

ceeding, lacking due process from start

to finish, must end now with your vote

that you lack jurisdiction to conduct

an impeachment trial for a former

President, whose term in office has ex-

pired and who is now a private citizen.

So one reason you must send this

message here and now is because of the

complete lack of due process that

brought this Article of Impeachment

before this body. God forbid we should

ever lower our vigilance to the prin-

ciple of due process.

An impeachment trial of Private Cit-

izen Trump held before the Senate

would be nothing more nor less than

the trial of a private citizen by a legis-

lative body. An impeachment trial by

the Senate of a private citizen violates

article I, section 9 of the United States

Constitution, which provides that ‘‘[n]o

bill of attainder . . . shall be passed.’’

The bill of attainder, as this clause is

known, prohibits Congress from enact-

ing ‘‘a law that legislatively deter-

mines guilt and inflicts punishment

upon an identifiable individual without

provision of the protections of a judi-

cial trial.’’

A bill of attainder is a legislative act

which inflicts punishment without a judicial

trial—

A judicial trial—

The distinguishing characteristic of a bill of

attainder is the substitution of a legislative

determination of guilt and legislative impo-

sition of punishment for judicial finding and

sentence.

[The Bill of Attainder Clause], and

the separation of powers doctrine gen-

erally, reflect the Framers’ concern

that trial by a legislature lacks the

safeguards necessary to prevent the

abuse of power.

As the Supreme Court explained in

United States v. Brown, ‘‘[t]he best

available evidence, the writings of the

architects of our constitutional sys-

tem, indicate that the Bill of Attainder

Clause was intended not as a narrow,

technical (and therefore soon to be out-

moded) prohibition, but rather as an

implementation of the separation of

powers, a general safeguard against

legislative exercise of the judicial func-

tion, or more simply—trial by legisla-

ture.’’ The bill of attainder ‘‘reflected

the Framers’ belief that the Legisla-

tive Branch is not so well suited as po-

litically independent judges and ju-

ries.’’

When the Senate undertakes an im-

peachment trial of a private citizen, as

it clearly understands to be the case

here, supported by the fact that the

Chief Justice is not presiding and Mr.

Trump is not ‘‘the President,’’ it is act-

ing as a judge and jury rather than a

legislative body. And this is exactly

the type of situation that the bill of at-

tainder constitutional prohibition was

meant to preclude.

It is clear that disqualification from

holding future office, the punishment

the House managers intend to seek

here, is a kind of punishment, like ban-

ishment and others, that is subject to

the constitutional prohibition against

the passage of bills of attainder, under

which designation bills of pains and

penalties are included. The cases in-

clude Cummings, Ex parte Garland,

and this Brown case. The Supreme

Court three times has struck down pro-

visions that precluded support of the

South or support of communism from

holding certain jobs as being in viola-

tion of this prohibition. Thus the im-

peachment of a private citizen in order

to disqualify them from holding office

is an unconstitutional act constituting

a 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

haste the House acted in when it

rushed through the Article of Impeach-

ment in less than 48 hours, acting hast-

ily simply to appease the popular clam-

or of their political base—the very kind

of concern expressed by Mr. Hamilton

in Federalist 65.

Moreover, as Chief Justice Marshall

warned in Fletcher v. Peck, ‘‘it is not

to be disguised that the framers of the

constitution viewed, with some appre-

hension, the violent acts that might

grow out of the feelings of the moment;

and that the people of the United

States, in adopting that instrument,

have manifested a determination to

shield themselves and their property

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from the effects of those sudden and

strong passions to which men and

women are exposed. The restrictions on

the legislative power of the states are

obviously founded in this sentiment;

and the constitution of the United

States contains what may be deemed a

bill of rights for the people of each

state. No state shall pass any bill of at-

tainder. In this form the power of the

legislature over the lives and fortunes

of individuals is expressly restrained.’’

So now let’s turn to the text of the

Constitution.

Turning to the text of the Constitu-

tion is, for many, of course, the most

appropriate and the most important

starting place to trying to answer a

Constitution-based question. There are

several passages of the United States

Constitution that relate to the Federal

impeachment process. Let’s turn to a

reading of the text now.

A true textual analysis, as the name

implies, always begins with the words

of the text and only resorts to legisla-

tive history or history itself if the

meaning of the text is not plain. As the

Supreme Court has emphasized,

‘‘[s]tatutory interpretation, as we al-

ways say, begins with the text.’’ ‘‘In in-

terpreting this text, we are guided by

the principle that the Constitution was

written to be understood by the voters;

its words and phrases were used in

their normal and ordinary as distin-

guished from technical meaning.’’ And

‘‘[w]e must enforce plain and unambig-

uous statutory language according to

its terms.’’

If a President is impeached, the un-

ambiguous text of the Constitution

commands that the Chief Justice of the

United States shall preside, as we dis-

cussed earlier. Again, the Chief Justice

is disinterested and nonpartisan. His

presence brings dignity and solemnity

to such a proceeding. In this case, the

Chief Justice clearly is not presiding,

and the conflict of interest wouldn’t

necessarily just arise as a substitute

for the Vice President. It is the appear-

ance of a conflict of interest and the—

and a conflict of interest and the pre-

judgment that we have discussed. In

this case, as we say, the Chief Justice

clearly is not presiding. The Senate

President pro tempore is presiding. It

appears that in the leader’s view, un-

doubtedly joined by other Senators,

this is permitted by the Constitution

because the subject of the trial is a

non-President. As such, it is conceded,

as it must be, that for constitutional

purposes of the trial, the accused is a

non-President. The role of the Senate,

though, is to decide whether or not to

convict and thereby trigger the appli-

cation of article II, section 4:

The President, Vice President and all civil

Officers of the United States, shall be re-

moved from Office on Impeachment for, and

Conviction of, Treason, Bribery, or other

high Crimes and Misdemeanors.

From which office shall a non-Presi-

dent be removed if convicted? A non-

President doesn’t hold an office, there-

fore cannot be impeached under this

clause, which provides for the removal

from office of the person under the im-

peachment attack.

The House managers contend that

the fact that the Chief Justice is not

presiding does not impact the constitu-

tional validity of this trial. Notably,

they devote only a single paragraph of

their trial memorandum to a develop-

ment so significant that it prompted

multiple Senators to declare the entire

proceeding suspect, with one going so

far as to say it ‘‘crystalized’’ the un-

constitutional nature of this pro-

ceeding. And the single paragraph that

the House managers do devote to the

issue is entirely unpersuasive on the

merits.

The House managers’ position ig-

nores traditional statutory canons of

interpretation. It is well established

that ‘‘[a] term appearing in several

places in a statutory text is generally

read the same way each time it ap-

pears.’’ This presumption is ‘‘at its

most vigorous when a term is repeated

within a given sentence.’’ Additionally,

the Court in at least one instance has

referred to a broader ‘‘established

canon’’ that similar language con-

tained within the same section of a

statute be accorded a consistent mean-

ing.

I know this is a lot to listen to at

once—a lot of words, but words are

what make our Constitution, and the

interpretation of that Constitution, as

you well know, is a product of words.

If the text, ‘‘the President of the

United States’’ in the constitutional

provision requiring the Chief Justice to

preside can refer only to the sitting

President, and not to former presi-

dents, then the textual identification

of ‘‘[t]he President’’ contained in arti-

cle II, section 4, which makes the

President amenable to impeachment in

the first place, also excludes anyone

other than the sitting President. In

full, that sentence provides that ‘‘[t]he

President, Vice President and all civil

Officers of the United States, shall be

removed from Office on Impeachment

for, and Conviction of, Treason, Brib-

ery, or other high Crimes and Mis-

demeanors.’’ This is the substantive

phrase of the Constitution vesting the

conviction and removal power in the

Senate, and it contains a clear jurisdic-

tional limitation. The House managers

do understand what the word ‘‘Presi-

dent’’ means for the purposes of other

constitutional provisions, and so they

should understand this limitation as

well. Only a sitting President is re-

ferred to as the President of the United

States in the Constitution. And only a

sitting President may be impeached,

convicted, and removed upon a trial in

the Senate. ‘‘The President’’ in article

II, section 4 and ‘‘the President’’ in ar-

ticle I, section 3 identify the same per-

son. If the accused is not ‘‘the Presi-

dent’’ in one, he is not ‘‘the President’’

in the other. No sound textual inter-

pretation—I emphasize ‘‘textual inter-

pretation’’—principle permits a con-

trary reading. In the words of the Su-

preme 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, in

their announcement that Senator

EAHY

will preside, have already taken

their position on this matter. The ac-

cused is not the President. The text of

the United States Constitution there-

fore does not vest the Senate with the

power to try him and remove him—a

factual nullity; he can’t be removed—

or disqualify him—a legal nullity—as if

he was the President.

The House managers contend that

the Senate has jurisdiction over this

impeachment because despite the fact

that he is no longer the President, the

conduct that the former President is

charged occurred while he was still in

office. That argument does not in any

way alter the Constitution’s clear tex-

tual identification of ‘‘the President.’’

The House managers justify their

strained argument by noting that

‘‘[t]he Constitution’s impeachment

provisions are properly understood by

reference to this overarching constitu-

tional plan.’’ But with that very jus-

tification in mind, their argument fails

once again. In an impeachment, it is

the accused’s office that permits the

impeachment. Ceasing to hold that of-

fice terminates the possibility and the

purpose of impeachment.

Private persons may not be im-

peached in America, and so they ask

you to look back at the British model.

The Constitution, as I see it, does not

make private citizens subject to im-

peachment. The Founders rejected the

British model that allowed Parliament

to impeach anyone, except for the

King, and so they limited impeachment

to certain public officials, including

Presidents in our country.

Next on the textual front, the pri-

mary and, in fact, only required rem-

edy of a conviction is removal.

Article II, Section 4, states a straight-

forward rule: whenever a civil officer is im-

peached and convicted for high crimes and

misdemeanors, they shall be removed.

It is undeniable that in this instance

removal is moot in every possible re-

gard. Removal is a factual and legal

impossibility. Yet the Article of Im-

peachment itself—read it in the where-

fore clause; it calls for removal. This is

one reason why impeachment pro-

ceedings are different from ordinary

trials and why the Constitution point-

edly separates the two. In ordinary

criminal jurisprudence, a person con-

victed of public crimes committed

while he or she was in office may still

be punished even though they no

longer hold that office. Not so with im-

peachment. In a Senate impeachment

trial, conviction means and requires re-

moval, and conviction without a re-

moval is no conviction at all. Only

upon a valid conviction and its req-

uisite, enforceable removal may the

additional judgment of disqualification

plausibly be entertained.

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Presidents are impeachable because

Presidents are removable. Former

presidents are not because they cannot

be removed. The Constitution is clear.

Trial by the Senate sitting as a Court

of Impeachment is reserved for the

President of the United States, not a

private citizen who used to be Presi-

dent of the United States. Just as

clear, the judgment required upon con-

viction is removal from office, and a

former President can no longer be re-

moved from office.

The purpose, text and structure of the Con-

stitution’s impeachment Clauses confirm

this intuitive and common-sense under-

standing.

So wrote Judge Michael Luttig,

former judge in the United States

Court of Appeals for the Fourth Cir-

cuit.

And, indeed, there are State court de-

cisions that analyze this very same

language and conclude that impeach-

ment can only be entertained against

an existing officer subject to removal,

in State v. Hill, from Nebraska, and

Smith v. Brantley, a 1981 decision from

the Florida supreme court.

This is the first time that the United

States Senate has ever been asked to

apply the Constitution’s textual identi-

fication of ‘‘the President’’ in the im-

peachment provisions to anyone other

than the sitting President of the

United States. And, of course, most

significantly from a textual approach,

the term specifically used is ‘‘the

President’’ not ‘‘a President.’’ And

there can only be one ‘‘the Presi-

dent’’—the incumbent—at a time.

Judge Luttig relies on this textual

reading for his firm conclusion that a

former President cannot be impeached

or convicted. Consider the alternative,

as Robert Delahunty and John Yoo

have: If Mr. Trump can be convicted as

‘‘the President,’’ the language the Con-

stitution uses, then why is he still not

‘‘the President’’ under the Commander

in Chief clause, for example? They are

joined by Professor Alan Dershowitz

and University of Chicago Professor

Richard Epstein in their focus and con-

clusion. They point out the dangers of

an approach that deviates from a focus

on the text. If there is no temporal lim-

itation—that is what they suggested to

you—remember, you can go back in

time and impeach any civil officer who

ever served for anything that occurred

during the course of their service, time

immemorial. With the House man-

agers’ position, the concept necessarily

includes all executive officers and

judges, including, perhaps, the im-

peachment now of Jimmy Carter for

his handling of the Iran hostage scan-

dal, as one example. That flows logi-

cally from their argument without any

hesitation. Further, they ask, why not

then countenance the broad reading of

other terms? When I say ‘‘they ask,’’ I

mean the experts who opined on this.

Why not then countenance a broad

reading of other terms, such that terms

like ‘‘high crimes and misdemeanors,’’

however broadly construed, are not in-

tended to be exclusively the only kind

of conduct intended as impeachable.

They conclude—these experts—by writ-

ing that a nontextual impeachment

power would undermine the Constitu-

tion’s effort to make the President

independent of Congress, a central goal

of the Founding Fathers. The authors

convincingly argue for textual analysis

over nontextual reliance on a presen-

tation of history, suggesting that if

one’s presentation of history were to

control, it would expressly permit con-

duct contrary to the express language,

leading to clearly unintended results.

I must tell you that I have spoken to

Judge Ken Starr at some length over

this past week about this. This textual

approach is something he, too, feels

very strongly about. I also happen to

be friendly with Chuck Cooper, by the

way. He is a fine person. He also hap-

pens to be a person who has a strong

animus against President Trump. But

Chuck Cooper is a fine lawyer and a

fine person, as I am sure our friends

from Alabama know.

As we already have discussed, the

risks to the institution of the Presi-

dency and to any and all past officers

is limited only by one’s imagination.

The weakness of the House managers’

case is further demonstrated by their

reliance on the unproven assertion that

if President Trump is not impeached,

future officers who are impeached will

evade removal by resigning either be-

fore impeachment or Senate trial.

For example, they contend, citing

various law professors, that ‘‘[any offi-

cial] who betrayed the public trust and

was impeached could avoid account-

ability simply by resigning one minute

before the Senate’s final conviction

vote.’’

This argument is a complete canard.

The Constitution expressly provides in

article I, section 3, clause 7 that a con-

victed party, following impeachment,

‘‘shall nevertheless be liable and sub-

ject 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.

We have a judicial process in this

country. We have an investigative

process in this country to which no

former officeholder is immune. That is

the process that should be running its

course. That is the process the bill of

attainder tells us is the appropriate

one for investigation, prosecution, and

punishment, with all of the attributes

of that branch. We are missing it by

two articles here that the article III

courts provide. They provide that kind

of appropriate adjudication. That is ac-

countability.

There are appropriate mechanisms in

place for full and meaningful account-

ability not through the legislature,

which does not and cannot offer the

safeguards of the judicial system,

which every private citizen is constitu-

tionally entitled to.

But more to the point here. Their ar-

gument does nothing to empower a dif-

ferent reading of the Constitution’s

plain text; that is, one that reads ‘‘the

President’’ in one provision to include

former Presidents but reads ‘‘the Presi-

dent’’ in the other provision to mean

only the sitting President.

Second, this red herring of an argu-

ment also fails because the former

President did not resign, even amid

calls by his opponents that he do so. As

a result, the Senate need not decide

whether it possesses the power or juris-

diction to try and convict the former

President who resigned or how it might

best proceed to effectuate justice in

such a case. That is not this case.

The plain meaning of the Constitu-

tion’s text, faithfully and consistently

applied, should govern whether the

United States Senate is vested by the

Constitution with the power to convict

a private citizen of the United States.

It is not.

The House managers posit in their

trial memorandum that despite the

fact that the primary and only nec-

essary remedy upon conviction, re-

moval, is a legal nullity, this late im-

peachment trial is appropriate because

the other, secondary, optional remedy

that the Senate is not even required to

consider and which only takes effect

upon a later, separate vote—disquali-

fication from future office—can still

theoretically be applied to a former

President.

The managers contend that ‘‘Article

II, Section 4 states a straightforward

rule: whenever a civil officer is im-

peached and convicted for high crimes

and misdemeanors, they ‘shall be re-

moved.’ Absolutely nothing about this

rule implies, let alone requires, that

former officials—who can still face dis-

qualification—are immune from im-

peachment and conviction.’’

That is what they say. I told you

that today. In other words, so the argu-

ment goes, a President no longer hold-

ing office does not moot the entirety of

remedies afforded by impeachment.

This, however, also flies in the face of

both the plain meaning of the text and

the canons of statutory interpretation.

First of all, the managers, once

again, simply choose to ignore the

text. Even in the passage that the man-

agers cite, the word ‘‘shall’’ does, to

put it mildly, imply a requirement, an

imperative such that an impeachment

in which removal would be impossible

is invalid. ‘‘ ‘Shall’ means shall. The

Supreme Court . . . ha[s] made clear

that when a statute uses the word

‘shall,’ Congress has imposed a manda-

tory duty upon the subject of the com-

mand,’’ as in shall remove. Indeed,

‘‘the mandatory ‘shall’ . . . normally

creates an obligation impervious to ju-

dicial discretion.’’

And ‘‘[w]herever the Constitution

commands, discretion terminates.’’

‘‘Shall’’ means mandatory, and ‘‘shall

be removed’’ is not possible for a

former officer no longer in office. Im-

peachment cannot apply.

Now, here is the ‘‘and’’ argument.

You may have heard about it or read

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CONGRESSIONAL RECORD — SENATES608 February 9, 2021

about it if you follow such things. This

is another one Judge Starr is big on,

and many of the textual scholars have

written about it.

The managers critically ignore this

language in article I, section 3, clause

7, which states that ‘‘[j]udgment in

Cases of Impeachment shall not extend

further than to removal from Office,

and disqualification to hold and enjoy

any Office of honor, Trust or Profit

under the United States.’’

Ordinarily, as in everyday English, use of

the conjunctive ‘‘and’’ in a list means that

all of the listed requirements must be satis-

fied, while use of the disjunctive ‘‘or’’ means

that only one of the list of requirements

needs to be satisfied.

Judge Kenneth Starr subscribes

strongly to this argument and under-

stands the comma to provide further

support for the reading.

As Judge Michael Luttig, again, re-

cently argued, ‘‘The Constitution links

the impeachment remedy of disquali-

fication from future office with the

remedy of removal from the office that

person currently occupies; the former

remedy does not apply in situations

where the latter is unavailable.’’ Con-

viction and removal are inextricably

entwined. If removal no longer is pos-

sible, neither is an impeachment con-

viction.

Judge Luttig’s view is consistent

with that of Justice Joseph Story in

his famous ‘‘Commentaries on the Con-

stitution of the United States,’’ where-

in Justice Story analyzed ‘‘that im-

peachment is inapplicable to officials

who have left their position because re-

moval—a primary remedy that the im-

peachment process authorizes—is no

longer necessary.’’

Justice Story noted that he is not

coming to a firm posit on this. This is

his belief, and this is his thought proc-

ess.

There is also much force in the remark,

that an impeachment is a proceeding purely

of a political nature. It is not so much de-

signed to punish an offender, as to secure the

state against gross official misdemeanors. It

touches neither his person, nor his property;

but simply divests him of his political capac-

ity.

Professor Philip Bobbitt. Now, this

is—I have to say this is insulting. We

heard earlier today we don’t cite any

scholars. Professor Philip Bobbitt is a

distinguished Webster professor at Co-

lumbia University who, along with

Professor Charles Black, wrote the

handbook on impeachment used for

many, many years. He is a constitu-

tional expert on impeachment. He has

written that ‘‘there is little discussion

in the historical record surrounding

the precise question of whether a per-

son no longer a civil officer can be im-

peached—and in light of the clarity of

the text, this is hardly surprising,’’

Professor Bobbitt wrote.

Professor Bobbitt, by the way, who

has a rich family history in the Demo-

cratic Party—LBJ—also asserted the

following, as recently as January 27,

2021, arguing against holding this trial.

He said:

There is no authority granted to Congress

to impeach and convict persons who are not

‘‘civil officers of the United States.’’ It’s as

simple as that. But simplicity doesn’t mean

unimportance.

Professor Bobbitt wrote:

Limiting Congress to its specified powers

is a crucial element in the central idea of the

United States Constitution: putting the

state under law.

Professor Bobbitt and former Stan-

ford University Law professor Richard

Danzig have remarked that impeach-

ment’s principal purpose, as the 66th of

the Federalist Papers makes clear, is

to check the ‘‘encroachments of the ex-

ecutive.’’ Trial by jury, rules of evi-

dence, and other safeguards are put

aside, they write, because of the need

to protect the public from further

abuse of office.

Similarly, yesterday, Professor Eu-

gene Kontorovich wrote: The Constitu-

tion provides that the impeachment

process is to be used to remove ‘‘all

Civil officers of the United States’’—

that is, people holding a government

position. Yet in the case of Mr. Trump,

the House is reading the Constitution

as if it said the process applies to ‘‘all

Civil officers of the United States, and

people who aren’t civil officers, but

once were.’’ Exactly what it does not

say.

We have been told by the House man-

agers about missed citations in our

brief. I would like to draw your atten-

tion to page 37. This is a substantive

misrepresentation to you, I would re-

spectfully suggest, and it reflects to me

a very different view of democracy—a

fear of democracy.

They wrote on page 37 of their brief

that the Framers—I am paraphrasing

the first part.

The Framers themselves would not have

hesitated to convict on these facts. Their

worldview was shaped by a study of classical

history, as well as a lived experience of re-

sistance and revolution. They were well

aware of the danger posed by opportunists

who incited mobs to violence for political

gain. They drafted the Constitution to avoid

such thuggery, which they associated with

‘‘the threat of civil disorder and the early as-

sumption of power by a dictator.’’

The citation is ‘‘178, Bernard Bailyn,

The Ideological Origins of the Amer-

ican Revolution.’’ That is this book.

Professor Bailyn, when he gave his

description of the threat of civil dis-

order and the early assumption of

power by a dictator and thuggery, was

referring to early colonists’ view to-

ward democracy. They feared democ-

racy. That is what they called thug-

gery, democracy, because it is an

elitist’s point of view—an elitist’s po-

litical point of view. We don’t fear de-

mocracy. We embrace it.

In summing up, let’s be crystal clear

on where we stand and why we are

here. The singular goal of the House

managers and House leadership in pur-

suing the impeachment conviction of

Donald J. Trump is to use these pro-

ceedings to disenfranchise at least 74

million Americans with whom they vis-

cerally disagree and to ensure that nei-

ther they nor any other American ever

again can cast a vote for Donald

Trump. And if they convince you to go

forward, their ultimate hope is that

this will be a shot across the bow of

any other candidate for public office

who would dare to take up a political

message that is very different from

their own political point of view as to

the direction in which they wish to

take our country.

Under our Constitution, this body

and the impeachment process must

never be permitted to be weaponized

for partisan political purposes. This

Article of Impeachment must be dis-

missed for lack of jurisdiction based on

what we have discussed here today and

what is in our brief. The institution of

the Presidency is at risk unless a

strong message is sent by the dismissal

of the Article of Impeachment.

Before we close, I want to leave you

with two thoughts. One was expressed

by Abraham Lincoln. He comes to mind

first because of the way in which our

Nation is now divided. We must learn

from his times. He had a simple but im-

portant message about the paramount

importance of doing what is right. Mr.

Lincoln said:

Stand 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 oppose

the dangerous extremes. In both cases you

stand on moral ground and hold the ship

level and steady. In both you are national

and nothing less than national.

And the second message is from one

of Mr. Lincoln’s favorite poets who

wrote in 1849, at a time fraught with

division and at risk for even more. The

message from that other time of divi-

sion—a call for hope and unity to bring

strength—has special meaning today.

A poem Longfellow wrote:

Sail forth into the sea, O ship!

Through wind and wave, right onward steer!

The moistened eye, the trembling lip,

Are not the signs of doubt or fear.

Sail forth into the sea of life,

O gentle, loving, trusting wife,

And safe from all adversity

Upon the bosom of that sea

Thy comings and thy goings be!

For gentleness and love and trust

Prevail o’er angry wave and gust;

And in the wreck of noble lives

Something immortal still survives!

Thou, too, sail on, O Ship of State!

Sail on, O Union, strong and great!

Humanity with all its fears,

With all the hopes of future years,

Is hanging breathless on thy fate!

We know what Master laid thy keel,

What Workmen wrought thy ribs of steel,

Who made each mast, and sail, and rope,

What anvils rang, what hammers beat,

In what a forge and what a heat

Were shaped the anchors of thy hope!

Fear not each sudden sound and shock,

’Tis of the wave and not the rock;

’Tis but the flapping of the sail,

And not a rent made by the gale!

In spite of rock and tempest’s roar,

In spite of false lights on the shore,

Sail on, nor fear to breast the sea!

Our hearts, our hopes, are all with thee,

Our hearts, our hopes, our prayers, our tears,

Our faith triumphant o’er our fears,

Are all with thee,—are all with thee!

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CONGRESSIONAL RECORD — SENATE S609 February 9, 2021

Mr. Manager RASKIN. Mr. President,

it has been a long day. We thank you,

and we thank all the Senators for their

careful attention to the legal argu-

ments and your courtesy to the man-

agers and to the lawyers here.

This has been the most bipartisan

impeachment in American history, and

we hope it will continue to be so in the

days ahead. And nothing could be more

bipartisan than the desire to recess.

So the only issue before the Senate

today, of course, is whether Donald

Trump is subject to the Court of Im-

peachment that the Senate has con-

vened. We see no need to make any fur-

ther argument that this body has the

power to convict and to disqualify

President Trump for his breathtaking

constitutional crime of inciting a vio-

lent insurrection against our govern-

ment.

Tomorrow, we will address the amaz-

ing array of issues suggested by the

thoughtful presentations by our col-

leagues, by including the First Amend-

ment, due process, partisanship under

our Constitution, the bill of attainder

clause, and many, many more.

But, in the meantime, we waive all

further arguments. We waive our 33

minutes of rebuttal, and we give those

33 minutes, gratefully, back to the Sen-

ate of the United States.

(Chorus of Hear! Hear!)

The PRESIDENT pro tempore. Is all

time yielded back?

All time has been yielded back.

The question is whether Donald John

Trump is subject to the jurisdiction of

a Court of Impeachment for acts com-

mitted while President of the United

States, notwithstanding the expiration

of his term in that office?

Mr. SCHUMER. I ask for the yeas

and nays, Mr. President.

The PRESIDENT pro tempore. Is

there a sufficient second?

There is a sufficient second.

The clerk will call the roll.

The senior assistant legislative clerk

called the roll.

[Rollcall Vote No. 57]

YEAS—56

Baldwin

Bennet

Blumenthal

Booker

Brown

Cantwell

Cardin

Carper

Casey

Cassidy

Collins

Coons

Cortez Masto

Duckworth

Durbin

Feinstein

Gillibrand

Hassan

Heinrich

Hickenlooper

Hirono

Kaine

Kelly

King

Klobuchar

Leahy

Luja

Manchin

Markey

Menendez

Merkley

Murkowski

Murphy

Murray

Ossoff

Padilla

Peters

Reed

Romney

Rosen

Sanders

Sasse

Schatz

Schumer

Shaheen

Sinema

Smith

Stabenow

Tester

Toomey

Van Hollen

Warner

Warnock

Warren

Whitehouse

Wyden

NAYS—44

Barrasso

Blackburn

Blunt

Boozman

Braun

Burr

Capito

Cornyn

Cotton

Cramer

Crapo

Cruz

Daines

Ernst

Fischer

Graham

Grassley

Hagerty

Hawley

Hoeven

Hyde-Smith

Inhofe

Johnson

Kennedy

Lankford

Lee

Lummis

Marshall

McConnell

Moran

Paul

Portman

Risch

Rounds

Rubio

Scott (FL)

Scott (SC)

Shelby

Sullivan

Thune

Tillis

Tuberville

Wicker

Young

The PRESIDENT pro tempore. On

this vote, the yeas are 56, the nays are

44.

Pursuant to S. Res. 47, the Senate

having voted in the affirmative on the

foregoing question, the Senate shall

proceed with the trial as provided

under the provisions of that resolution.

MORNING BUSINESS

EXECUTIVE AND OTHER

COMMUNICATIONS

The following communications were

laid before the Senate, together with

accompanying papers, reports, and doc-

uments, and were referred as indicated:

EC–336. A communication from the Direc-

tor of Legislative Affairs, Federal Deposit

Insurance Corporation, transmitting, pursu-

ant to law, the report of a rule entitled ‘‘Un-

safe and Unsound Banking Practices: Bro-

kered Deposits and Interest Rate Restric-

tions’’ (RIN3064–AE94) received in the Office

of the President of the Senate on February 2,

2021; to the Committee on Banking, Housing,

and Urban Affairs.

EC–337. A communication from the Legal

Counsel, Equal Employment Opportunity

Commission, transmitting, pursuant to law,

the report of a rule entitled ‘‘Compliance

Manual on Religious Discrimination’’

(RIN3046–ZA01) received in the Office of the

President of the Senate on February 2, 2021;

to the Committee on Health, Education,

Labor, and Pensions.

EC–338. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Standard

Instrument Approach Procedures, and Take-

off Minimums and Obstacle Departure Proce-

dures; Miscellaneous Amendments; Amend-

ment 3931’’ ((RIN2120–AA65) (Docket No.

31341)) received in the Office of the President

of the Senate on February 2, 2021; to the

Committee on Commerce, Science, and

Transportation.

EC–339. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Standard

Instrument Approach Procedures, and Take-

off Minimums and Obstacle Departure Proce-

dures; Miscellaneous Amendments; Amend-

ment 3932’’ ((RIN2120–AA65) (Docket No.

31342)) received in the Office of the President

of the Senate on February 2, 2021; to the

Committee on Commerce, Science, and

Transportation.

EC–340. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Standard

Instrument Approach Procedures, and Take-

off Minimums and Obstacle Departure Proce-

dures; Miscellaneous Amendments; Amend-

ment 3928’’ ((RIN2120–AA65) (Docket No.

31338)) received in the Office of the President

of the Senate on February 2, 2021; to the

Committee on Commerce, Science, and

Transportation.

EC–341. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Standard

Instrument Approach Procedures, and Take-

off Minimums and Obstacle Departure Proce-

dures; Miscellaneous Amendments; Amend-

ment 3927’’ ((RIN2120–AA65) (Docket No.

31337)) received in the Office of the President

of the Senate on February 2, 2021; to the

Committee on Commerce, Science, and

Transportation.

EC–342. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Standard

Instrument Approach Procedures, and Take-

off Minimums and Obstacle Departure Proce-

dures; Miscellaneous Amendments; Amend-

ment 3929’’ ((RIN2120–AA65) (Docket No.

31339)) received in the Office of the President

of the Senate on February 2, 2021; to the

Committee on Commerce, Science, and

Transportation.

EC–343. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Standard

Instrument Approach Procedures, and Take-

off Minimums and Obstacle Departure Proce-

dures; Miscellaneous Amendments; Amend-

ment 3930’’ ((RIN2120–AA65) (Docket No.

31340)) received in the Office of the President

of the Senate on February 2, 2021; to the

Committee on Commerce, Science, and

Transportation.

EC–344. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Amend-

ment of Class E Airspace; Charlevoix, Michi-

gan’’ ((RIN2120–AA66) (Docket No. FAA–2020–

0803)) received in the Office of the President

of the Senate on February 2, 2021; to the

Committee on Commerce, Science, and

Transportation.

EC–345. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Amend-

ment of Class D and Class E Airspace; Air-

space; Toccoa, Georgia’’ ((RIN2120–AA66)

(Docket No. FAA–2020–0645)) received in the

Office of the President of the Senate on Feb-

ruary 2, 2021; to the Committee on Com-

merce, Science, and Transportation.

EC–346. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Amend-

ment of Class D and Class E Airspace; Truck-

ee, California’’ ((RIN2120–AA66) (Docket No.

FAA–2020–0768)) received in the Office of the

President of the Senate on February 2, 2021;

to the Committee on Commerce, Science,

and Transportation.

EC–347. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Amend-

ment of Class D and Class E Airspace;

Fallon, Nevada’’ ((RIN2120–AA66) (Docket

No. FAA–2020–0741)) received in the Office of

the President of the Senate on February 2,

2021; to the Committee on Commerce,

Science, and Transportation.

EC–348. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Amend-

ment of Class E Airspace; Hartford, Ken-

tucky’’ ((RIN2120–AA66) (Docket No. FAA–

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CONGRESSIONAL RECORD — SENATES610 February 9, 2021

2020–0730)) received in the Office of the Presi-

dent of the Senate on February 2, 2021; to the

Committee on Commerce, Science, and

Transportation.

EC–349. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Amend-

ment of Class E Airspace; Montezuma, Geor-

gia’’ ((RIN2120–AA66) (Docket No. FAA–2020–

0736)) received in the Office of the President

of the Senate on February 2, 2021; to the

Committee on Commerce, Science, and

Transportation.

EC–350. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Amend-

ment of Class D and E Airspace; Waterloo,

Iowa’’ ((RIN2120–AA66) (Docket No. FAA–

2020–0708)) received in the Office of the Presi-

dent of the Senate on February 2, 2021; to the

Committee on Commerce, Science, and

Transportation.

EC–351. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Revoca-

tion of Class E Airspace; Delavan, Wis-

consin’’ ((RIN2120–AA66) (Docket No. FAA–

2020–0734)) received in the Office of the Presi-

dent of the Senate on February 2, 2021; to the

Committee on Commerce, Science, and

Transportation.

EC–352. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Dassault Aviation Airplanes;

Amendment’’ ((RIN2120–AA66) (Docket No.

FAA–2020–0803)) received in the Office of the

President of the Senate on February 2, 2021;

to the Committee on Commerce, Science,

and Transportation.

EC–353. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Dassault Aviation Airplanes;

Amendment 39–21326’’ ((RIN2120–AA64)

(Docket No. FAA–2020–0582)) received in the

Office of the President of the Senate on Feb-

ruary 2, 2021; to the Committee on Com-

merce, Science, and Transportation.

EC–354. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Textron Aviation, Inc. (Type

Certificate Previously Held by Cessna Air-

craft Company) Airplanes; Amendment 39–

21336’’ ((RIN2120–AA64) (Docket No. FAA–

2020–0493)) received in the Office of the Presi-

dent of the Senate on February 2, 2021; to the

Committee on Commerce, Science, and

Transportation.

EC–355. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Piper Aircraft, Inc. Air-

planes; Amendment 39–21335’’ ((RIN2120–

AA64) (Docket No. FAA–2017–1059)) received

in the Office of the President of the Senate

on February 2, 2021; to the Committee on

Commerce, Science, and Transportation.

EC–356. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Pilatus Aircraft Ltd. Air-

planes; Amendment 39–21331’’ ((RIN2120–

AA64) (Docket No. FAA–2020–0753)) received

in the Office of the President of the Senate

on February 2, 2021; to the Committee on

Commerce, Science, and Transportation.

EC–357. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; ATR–GIE Avions de Trans-

port Regional; Amendment 39–21330’’

((RIN2120–AA64) (Docket No. FAA–2020–1024))

received in the Office of the President of the

Senate on February 2, 2021; to the Com-

mittee on Commerce, Science, and Transpor-

tation.

EC–358. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Airbus Helicopters; Amend-

ment 39–21322’’ ((RIN2120–AA64) (Docket No.

FAA–2020–0652)) received in the Office of the

President of the Senate on February 2, 2021;

to the Committee on Commerce, Science,

and Transportation.

EC–359. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Airbus Helicopters; Amend-

ment 39–21325’’ ((RIN2120–AA64) (Docket No.

FAA–2020–0685)) received in the Office of the

President of the Senate on February 2, 2021;

to the Committee on Commerce, Science,

and Transportation.

EC–360. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Leonardo S.p.a. Helicopters;

Amendment 39–21323’’ ((RIN2120–AA64)

(Docket No. FAA–2020–0987)) received in the

Office of the President of the Senate on Feb-

ruary 2, 2021; to the Committee on Com-

merce, Science, and Transportation.

EC–361. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Airbus Helicopters; Amend-

ment 39–21318’’ ((RIN2120–AA64) (Docket No.

FAA–2020–0987)) received in the Office of the

President of the Senate on February 2, 2021;

to the Committee on Commerce, Science,

and Transportation.

EC–362. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Airbus Helicopters; Amend-

ment 39–21321’’ ((RIN2120–AA64) (Docket No.

FAA–2020–0513)) received in the Office of the

President of the Senate on February 2, 2021;

to the Committee on Commerce, Science,

and Transportation.

EC–363. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; The Boeing Company Air-

planes; Amendment 39–21332’’ ((RIN2120–

AA64) (Docket No. FAA–2020–0686)) received

in the Office of the President of the Senate

on February 2, 2021; to the Committee on

Commerce, Science, and Transportation.

EC–364. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ’’ Air-

worthiness Directives; Airbus SAS Air-

planes; Amendment 39–21328’’ ((RIN2120–

AA64) (Docket No. FAA–2020–1019)) received

in the Office of the President of the Senate

on February 2, 2021; to the Committee on

Commerce, Science, and Transportation.

EC–365. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Airbus SAS Airplanes;

Amendment 39–21327’’ ((RIN2120–AA64)

(Docket No. FAA–2020–0788)) received in the

Office of the President of the Senate on Feb-

ruary 2, 2021; to the Committee on Com-

merce, Science, and Transportation.

EC–366. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Airbus Helicopters; Amend-

ment 39–21319’’ ((RIN2120–AA64) (Docket No.

FAA–2018–0893)) received in the Office of the

President of the Senate on February 2, 2021;

to the Committee on Commerce, Science,

and Transportation.

EC–367. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Textron Aviation Airplanes;

Amendment 39–21295’’ ((RIN2120–AA64)

(Docket No. FAA–2020–0472)) received in the

Office of the President of the Senate on Feb-

ruary 2, 2021; to the Committee on Com-

merce, Science, and Transportation.

EC–368. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Dassault Aviation Airplanes;

Amendment 39–21293’’ ((RIN2120–AA64)

(Docket No. FAA–2020–0677)) received in the

Office of the President of the Senate on Feb-

ruary 2, 2021; to the Committee on Com-

merce, Science, and Transportation.

EC–369. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Pilatus Aircraft Ltd. Air-

planes; Amendment 39–21301’’ ((RIN2120–

AA64) (Docket No. FAA–2020–0746)) received

in the Office of the President of the Senate

on February 2, 2021; to the Committee on

Commerce, Science, and Transportation.

EC–370. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Pilatus Aircraft Ltd. Air-

planes; Amendment 39–21296’’ ((RIN2120–

AA64) (Docket No. FAA–2020–0745)) received

in the Office of the President of the Senate

on February 2, 2021; to the Committee on

Commerce, Science, and Transportation.

EC–371. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Dassault Aviation Airplanes;

Amendment 39–21292’’ ((RIN2120–AA64)

(Docket No. FAA–2020–0678)) received in the

Office of the President of the Senate on Feb-

ruary 2, 2021; to the Committee on Com-

merce, Science, and Transportation.

EC–372. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

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CONGRESSIONAL RECORD — SENATE S611 February 9, 2021

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Airbus Helicopters; Amend-

ment 39–21297’’ ((RIN2120–AA64) (Docket No.

FAA–2020–0585)) received in the Office of the

President of the Senate on February 2, 2021;

to the Committee on Commerce, Science,

and Transportation.

EC–373. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Airbus Helicopters; Amend-

ment 39–21288’’ ((RIN2120–AA64) (Docket No.

FAA–2020–0618)) received in the Office of the

President of the Senate on February 2, 2021;

to the Committee on Commerce, Science,

and Transportation.

EC–374. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Airbus SAS Airplanes;

Amendment 39–21291’’ ((RIN2120–AA64)

(Docket No. FAA–2020–0583)) received in the

Office of the President of the Senate on Feb-

ruary 2, 2021; to the Committee on Com-

merce, Science, and Transportation.

EC–375. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Airbus Helicopters Deutsch-

land GmbH; Amendment 39–21300’’ ((RIN2120–

AA64) (Docket No. FAA–2020–0919)) received

in the Office of the President of the Senate

on February 2, 2021; to the Committee on

Commerce, Science, and Transportation.

EC–376. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Bell Helicopter Inc. (Type

Certificate Previously Held by Bell Heli-

copter Textron Inc. Helicopters); Amend-

ment 39–21303’’ ((RIN2120–AA64) (Docket No.

FAA–2020–0921)) received in the Office of the

President of the Senate on February 2, 2021;

to the Committee on Commerce, Science,

and Transportation.

EC–377. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Pilatus Aircraft Ltd. Air-

planes; Amendment 39–21285’’ ((RIN2120–

AA64) (Docket No. FAA–2020–0744)) received

in the Office of the President of the Senate

on February 2, 2021; to the Committee on

Commerce, Science, and Transportation.

EC–378. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Polskie Zaklady Lotnicze

Sp. z o.o Airplanes; Amendment 39–21308’’

((RIN2120–AA64) (Docket No. FAA–2020–0473))

received in the Office of the President of the

Senate on February 2, 2021; to the Com-

mittee on Commerce, Science, and Transpor-

tation.

EC–379. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Airbus SAS Airplanes;

Amendment 39–21312’’ ((RIN2120–AA64)

(Docket No. FAA–2020–0590)) received in the

Office of the President of the Senate on Feb-

ruary 2, 2021; to the Committee on Com-

merce, Science, and Transportation.

EC–380. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Austro Engines GmbH En-

gines; Amendment 39–21310’’ ((RIN2120–AA64)

(Docket No. FAA–2019–0664)) received in the

Office of the President of the Senate on Feb-

ruary 2, 2021; to the Committee on Com-

merce, Science, and Transportation.

EC–381. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Airbus SAS Airplanes;

Amendment 39–21304’’ ((RIN2120–AA64)

(Docket No. FAA–2020–0968)) received in the

Office of the President of the Senate on Feb-

ruary 2, 2021; to the Committee on Com-

merce, Science, and Transportation.

EC–382. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Airbus Helicopters; Amend-

ment 39–21309’’ ((RIN2120–AA64) (Docket No.

FAA–2020–0462)) received in the Office of the

President of the Senate on February 2, 2021;

to the Committee on Commerce, Science,

and Transportation.

EC–383. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; GE Airbus SAS Airplanes;

Amendment 39–21302’’ ((RIN2120–AA64)

(Docket No. FAA–2020–0451)) received in the

Office of the President of the Senate on Feb-

ruary 2, 2021; to the Committee on Com-

merce, Science, and Transportation.

EC–384. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; GE Aviation Czech s.r.o.

(Type Certificate Previously Held by WAL-

TER Engines a.s., Walter a.s., and

MOTORLET a.s.) Turboprop Engines;

Amendment 39–21317’’ ((RIN2120–AA64)

(Docket No. FAA–2020–0979)) received in the

Office of the President of the Senate on Feb-

ruary 2, 2021; to the Committee on Com-

merce, Science, and Transportation.

EC–385. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Gulfstream Aerospace Cor-

poration Airplanes; Amendment 39–21320’’

((RIN2120–AA64) (Docket No. FAA–2020–0898))

received in the Office of the President of the

Senate on February 2, 2021; to the Com-

mittee on Commerce, Science, and Transpor-

tation.

EC–386. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Pilatus Aircraft Ltd. Air-

planes; Amendment 39–21313’’ ((RIN2120–

AA64) (Docket No. FAA–2020–0719)) received

in the Office of the President of the Senate

on February 2, 2021; to the Committee on

Commerce, Science, and Transportation.

EC–387. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Airbus Helicopters; Amend-

ment 39–21264’’ ((RIN2120–AA64) (Docket No.

FAA–2019–1019)) received in the Office of the

President of the Senate on February 2, 2021;

to the Committee on Commerce, Science,

and Transportation.

EC–388. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; The Boeing Company Air-

planes; Amendment 39–21311’’ ((RIN2120–

AA64) (Docket No. FAA–2020–0779)) received

in the Office of the President of the Senate

on February 2, 2021; to the Committee on

Commerce, Science, and Transportation.

EC–389. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Airbus SAS Airplanes;

Amendment 39–21307’’ ((RIN2120–AA64)

(Docket No. FAA–2020–0464)) received in the

Office of the President of the Senate on Feb-

ruary 2, 2021; to the Committee on Com-

merce, Science, and Transportation.

EC–390. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Airbus Helicopters; Amend-

ment 39–21316’’ ((RIN2120–AA64) (Docket No.

FAA–2020–0378)) received in the Office of the

President of the Senate on February 2, 2021;

to the Committee on Commerce, Science,

and Transportation.

EC–391. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Rolls-Royce Corporation

(Type Certificate Previously Held by Allison

Engines Company) Turboprop Engines;

Amendment 39–21314’’ ((RIN2120–AA64)

(Docket No. FAA–2020–0687)) received in the

Office of the President of the Senate on Feb-

ruary 2, 2021; to the Committee on Com-

merce, Science, and Transportation.

EC–392. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Airworthi-

ness Directives; Airbus SAS Airplanes;

Amendment 39–21305’’ ((RIN2120–AA64)

(Docket No. FAA–2020–0970)) received in the

Office of the President of the Senate on Feb-

ruary 2, 2021; to the Committee on Com-

merce, Science, and Transportation.

EC–393. A communication from the Yeo-

man Chief Petty Officer, U.S. Coast Guard,

Department of Homeland Security, transmit-

ting, pursuant to law, the report of a rule en-

titled ‘‘Safety Zone; Lower Mississippi

River, Natchez, Mississippi’’ ((RIN1625–AA08)

(Docket No. USCG–2020–0641)) received in the

Office of the President of the Senate on Feb-

ruary 2, 2021; to the Committee on Com-

merce, Science, and Transportation.

EC–394. A communication from the Yeo-

man Chief Petty Officer, U.S. Coast Guard,

Department of Homeland Security, transmit-

ting, pursuant to law, the report of a rule en-

titled ‘‘Safety Zone; Neuse River, New Bern,

North Carolina’’ ((RIN1625–AA00) (Docket

No. USCG–2020–0645)) received in the Office of

the President of the Senate on February 2,

2021; to the Committee on Commerce,

Science, and Transportation.

EC–395. A communication from the Yeo-

man Chief Petty Officer, U.S. Coast Guard,

Department of Homeland Security, transmit-

ting, pursuant to law, the report of a rule en-

titled ‘‘Security Zone; Fleet Week Dem-

onstration Area, San Diego Bay, San Diego,

California’’ ((RIN1625–AA08) (Docket No.

USCG–2020–0655)) received in the Office of the

President of the Senate on February 2, 2021;

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CONGRESSIONAL RECORD — SENATES612 February 9, 2021

to the Committee on Commerce, Science,

and Transportation.

EC–396. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Prohibi-

tion Against Certain Flights in the Baghdad

Flight Information Region’’ ((RIN2120–AL56)

(Docket No. FAA–2018–0927)) received in the

Office of the President of the Senate on Feb-

ruary 2, 2021; to the Committee on Com-

merce, Science, and Transportation.

EC–397. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Extension

of the Prohibition Against Certain Flights in

the Pyongyang Flight Information Region’’

((RIN2120–AL57) (Docket No. FAA–2018–0838))

received in the Office of the President of the

Senate on February 2, 2021; to the Com-

mittee on Commerce, Science, and Transpor-

tation.

EC–398. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Amend-

ment of the Prohibition Against Certain

Flights in Specified Areas of the Simferopol

and Dnipropetrovsk Flight Information Re-

gions (FIRs) (UKFV and UKDV)’’ ((RIN2120–

AL58) (Docket No. FAA–2014–0225)) received

in the Office of the President of the Senate

on February 2, 2021; to the Committee on

Commerce, Science, and Transportation.

EC–399. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Amend-

ment of V–5 and V–178, and Revocation of V–

513 in the Vicinity of New Hope, Kentucky’’

((RIN2120–AA66) (Docket No. FAA–2020–0497))

received in the Office of the President of the

Senate on February 2, 2021; to the Com-

mittee on Commerce, Science, and Transpor-

tation.

EC–400. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Second

Limited Extension of Relief for Certain Per-

sons and Operations During the Coronavirus

Disease 2019’’ ((RIN2120–AL66) (Docket No.

FAA–2020–0446)) received in the Office of the

President of the Senate on February 2, 2021;

to the Committee on Commerce, Science,

and Transportation.

EC–401. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Removal

of the Special Rule for Model Aircraft’’

((RIN2120–AL43) (Docket No. FAA–2020–1067))

received in the Office of the President of the

Senate on February 2, 2021; to the Com-

mittee on Commerce, Science, and Transpor-

tation.

EC–402. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Limited

Extension of Relief for Certain Persons and

Operations During the Coronavirus Disease

2019 (COVID–19) Public Health Emergency’’

((RIN2120–AL64) (Docket No. FAA–2020–0446))

received in the Office of the President of the

Senate on February 2, 2021; to the Com-

mittee on Commerce, Science, and Transpor-

tation.

EC–403. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Extension

of the Prohibition Against Certain Flights in

the Damascus Flight Information Region

(FIR) (OSTT)’’ ((RIN2120–AL55) (Docket No.

FAA–2017–0768)) received in the Office of the

President of the Senate on February 2, 2021;

to the Committee on Commerce, Science,

and Transportation.

EC–404. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Prohibi-

tion Against Certain Flights in the Tehran

Flight Information Region (FIR) (OIIX)’’

((RIN2120–AL49) (Docket No. FAA–2020–0874))

received in the Office of the President of the

Senate on February 2, 2021; to the Com-

mittee on Commerce, Science, and Transpor-

tation.

EC–405. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Special

Flight Authorization for Supersonic Air-

craft’’ ((RIN2120–AL30) (Docket No. FAA–

2019–0451)) received in the Office of the Presi-

dent of the Senate on February 2, 2021; to the

Committee on Commerce, Science, and

Transportation.

EC–406. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Establish-

ment of Class E Airspace; Norway, Maine’’

((RIN2120–AA66) (Docket No. FAA–2020–0669))

received in the Office of the President of the

Senate on February 2, 2021; to the Com-

mittee on Commerce, Science, and Transpor-

tation.

EC–407. A communication from the Yeo-

man Chief Petty Officer, U.S. Coast Guard,

Department of Homeland Security, transmit-

ting, pursuant to law, the report of a rule en-

titled ‘‘Special Local Regulation; Fort Lau-

derdale Air Show; Atlantic Ocean, Fort Lau-

derdale, Florida’’ ((RIN1625–AA08) (Docket

No. USCG–2020–0128)) received in the Office of

the President of the Senate on February 2,

2021; to the Committee on Commerce,

Science, and Transportation.

EC–408. A communication from the Man-

agement and Program Analyst, Federal

Aviation Administration, Department of

Transportation, transmitting, pursuant to

law, the report of a rule entitled ‘‘Remote

Identification of Unmanned Aircraft Sys-

tems’’ ((RIN2120–AL31) (Docket No . FAA–

2019–1100)) received in the Office of the Presi-

dent of the Senate on February 2, 2021; to the

Committee on Commerce, Science, and

Transportation.

EXECUTIVE REPORT OF

COMMITTEE

The following executive report of a

nomination was submitted:

By Mr. CARPER for the Committee on En-

vironment and Public Works.

*Michael Stanley Regan, of North Caro-

lina, to be Administrator of the Environ-

mental Protection Agency.

*Nomination was reported with rec-

ommendation that it be confirmed sub-

ject to the nominee’s commitment to

respond to requests to appear and tes-

tify before any duly constituted com-

mittee of the Senate.

SUBMISSION OF CONCURRENT AND

SENATE RESOLUTIONS

The following concurrent resolutions

and Senate resolutions were read, and

referred (or acted upon), as indicated:

By Mr. SCHUMER (for himself and Mr.

ONNELL

S. Res. 47. A resolution to provide for re-

lated procedures concerning the article of

impeachment against Donald John Trump,

former President of the United States; con-

sidered and agreed to.

ADDITIONAL COSPONSORS

RES

At the request of Mr. M

ENENDEZ

, the

names of the Senator from Connecticut

(Mr. M

URPHY

), the Senator from Rhode

Island (Mr. W

HITEHOUSE

), the Senator

from Illinois (Mr. D

URBIN

), the Senator

from New Hampshire (Mrs. S

HAHEEN

the Senator from Maryland (Mr. V

OLLEN

), the Senator from Delaware

(Mr. C

OONS

), the Senator from Dela-

ware (Mr. C

ARPER

), the Senator from

New Hampshire (Ms. H

ASSAN

), the Sen-

ator from Connecticut (Mr.

LUMENTHAL

), the Senator from New

York (Mr. S

CHUMER

), the Senator from

Florida (Mr. R

UBIO

) and the Senator

from Colorado (Mr. B

ENNET

) were added

as cosponsors of S. Res. 34, a resolution

recognizing the 200th anniversary of

the independence of Greece and cele-

brating democracy in Greece and the

United States.

SUBMITTED RESOLUTIONS

SENATE RESOLUTION 47—TO PRO-

VIDE FOR RELATED PROCE-

DURES CONCERNING THE ARTI-

CLE OF IMPEACHMENT AGAINST

DONALD JOHN TRUMP, FORMER

PRESIDENT OF THE UNITED

STATES

Mr. SCHUMER (for himself and Mr.

ONNELL

) submitted the following

resolution; which was considered and

agreed to:

S. R

. 47

Resolved,

ECTION

1. The House of Representatives

shall file its record with the Secretary of the

Senate, which will consist of those publicly

available materials that have been sub-

mitted to or produced by the House Judici-

ary Committee, including transcripts of pub-

lic hearings or mark-ups and any materials

printed by the House of Representatives or

the House Judiciary Committee pursuant to

House Resolution 24 or House Resolution 40.

All materials filed pursuant to this section

shall be printed and made available to all

parties.

. 2. When, pursuant to Senate Resolu-

tion 16, the Senate convenes as a Court of

Impeachment on Tuesday, February 9, 2021,

there shall immediately be 4 hours of argu-

ment by the parties, equally divided, on the

question whether Donald John Trump is sub-

ject to the jurisdiction of a court of impeach-

ment for acts committed while President of

the United States, notwithstanding the expi-

ration of his term in that office. Each side

may determine the number of persons to

present argument on the foregoing question.

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CONGRESSIONAL RECORD — SENATE S613 February 9, 2021

The Senate, without any intervening action,

motion, or amendment, except for delibera-

tion by the Senate, if so ordered under the

Rules of Procedure and Practice in the Sen-

ate When Sitting on Impeachment Trials (re-

ferred to in this resolution as the ‘‘Rules of

Impeachment’’), shall then decide the fore-

going question by the yeas and nays. If a ma-

jority of Senators voting, a quorum being

present, shall vote in the negative, the Sen-

ate shall order that the article of impeach-

ment be immediately dismissed and the Sec-

retary shall notify the House of Representa-

tives of the order of dismissal. If a majority

of Senators voting, a quorum being present,

shall vote in the affirmative, the Senate

shall proceed as provided in this resolution.

. 3. The former President and the House

of Representatives shall have until 9:00 a.m.

on Wednesday, February 10, 2021, to file any

motions permitted under the Rules of Im-

peachment with the exception of motions to

subpoena witnesses or documents or any

other evidentiary motions. Responses to any

such motions shall be filed no later than

11:00 a.m. on Wednesday, February 10, 2021.

All materials filed pursuant to this section

shall be filed with the Secretary and be

printed and made available to all parties. Ar-

guments on such motions shall begin at 12:00

p.m. on Wednesday, February 10, 2021, and

each side may determine the number of per-

sons to make its presentation, following

which the Senate shall deliberate, if so or-

dered under the Rules of Impeachment, and

vote on any such motions.

. 4. Following the disposition of such

motions, or if no motions are made, then the

House of Representatives shall make its

presentation in support of the article of im-

peachment for a period of time not to exceed

16 hours, over up to 2 session days. If no mo-

tions are made under section 3, the House of

Representatives shall begin its presentation

at 12:00 p.m. on Wednesday, February 10,

2021. Following the House of Representa-

tives’ presentation, the former President

shall make his presentation for a period not

to exceed 16 hours, over up to 2 session days.

Each side may determine the number of per-

sons to make its presentation. Each side

shall have the right to decide for how many

hours it shall make its presentation on each

of the up to 2 session days allotted to it, ex-

cept that neither side shall make its presen-

tation for more than 8 hours on any single

session day. The parties’ presentations need

not be limited to argument from the record

described in section 1.

. 5. Upon the conclusion of the period

allotted for presentations by the parties as

provided under section 4, Senators may ques-

tion the parties for a period of time not to

exceed 4 hours over not more than 1 session

day.

. 6. Upon conclusion of the period allot-

ted for Senators’ questions as provided under

section 5, there shall be 2 hours of argument,

equally divided between the parties, followed

by deliberation by the Senate, if so ordered

under the Rules of Impeachment, on the

question of whether it shall be in order to

consider and debate under the Rules of Im-

peachment any motion to subpoena wit-

nesses or documents. The Senate, without

any intervening action, motion, or amend-

ment, shall then decide by the yeas and nays

whether it shall be in order to consider and

debate under the Rules of Impeachment any

motion to subpoena witnesses or documents.

Following the disposition of that question,

other motions provided under the Rules of

Impeachment shall be in order.

. 7. (a) If the Senate agrees to allow ei-

ther the House of Representatives or the

former President to subpoena witnesses, the

witnesses shall first be deposed and the par-

ties shall be allowed other appropriate dis-

covery. The Senate shall decide after deposi-

tion and other appropriate discovery which,

if any, witnesses shall testify, pursuant to

the Rules of Impeachment. No testimony

shall be admissible in the Senate unless the

parties have had the opportunity to depose

such witnesses and to conduct other appro-

priate discovery.

(b) If the Senate agrees to allow either

party to subpoena witnesses, provisions for

the admission of evidence, issuance of sub-

poenas, arrangements for depositions, other

appropriate discovery, testimony by wit-

nesses in the Senate, if such testimony is or-

dered by the Senate, and any related matters

are to be determined by subsequent resolu-

tion of the Senate.

. 8. (a) If the Senate decides that no

party shall be permitted to subpoena wit-

nesses pursuant to section 6, the House of

Representatives shall be recognized to make

a motion to admit into evidence the mate-

rials relied upon by the House of Representa-

tives during the trial. The House of Rep-

resentatives shall be recognized to make

such a motion, however, only if it has dis-

closed to the former President all materials

it will move to admit into evidence at least

48 hours before making said motion. Argu-

ments on the motion shall be limited to 1

hour equally divided. The Senate, without

any intervening action, motion, or amend-

ment, shall then decide by the yeas and nays

whether to admit into evidence such mate-

rials. If a majority of Senators voting, a

quorum being present, shall vote in the af-

firmative, the materials shall be admitted

into evidence. If a majority of Senators vot-

ing, a quorum being present, shall vote in

the negative, the materials shall not be ad-

mitted into evidence. The former President

shall then be recognized to make a motion to

admit into evidence the materials relied

upon by the former President during the

trial. The former President shall be recog-

nized to make such a motion, however, only

if he has disclosed to the House of Represent-

atives all materials he will move to admit

into evidence at least 48 hours before making

said motion. Arguments on the motion shall

be limited to 1 hour equally divided. The

Senate, without any intervening action, mo-

tion, or amendment, shall then decide by the

yeas and nays whether to admit into evi-

dence such materials. If a majority of Sen-

ators voting, a quorum being present, shall

vote in the affirmative, the materials shall

be admitted into evidence. If a majority of

Senators voting, a quorum being present,

shall vote in the negative, the materials

shall not be admitted into evidence.

(b) The disclosure requirements estab-

lished under subsection (a) shall not apply to

evidence discovered by the movant after the

disclosure deadline, so long as the movant

declares in writing that the movant was un-

aware of such evidence until after the disclo-

sure deadline, and that such evidence could

not reasonably have been discovered until

after the disclosure deadline.

to this section shall not be treated as a con-

cession by any party as to the truth of the

matter asserted by the parties, and the Sen-

ate as the trier of fact shall decide the

weight to be given such evidence.

. 9. Unless the Senate shall have al-

ready voted on the article of impeachment,

the Senate shall convene as a Court of Im-

peachment at 2:00 p.m. on Sunday, February

14, 2021, notwithstanding rule III of the Rules

of Impeachment.

. 10. Immediately upon the conclusion

of any action by the Senate under section 8,

or immediately upon the next day on which

the Senate reconvenes as a Court of Im-

peachment after the conclusion of such ac-

tion, the Senate shall proceed to final argu-

ments as provided in the Rules of Impeach-

ment, waiving the 2-person rule contained in

rule XXII of the Rules of Impeachment. Such

arguments shall not exceed 4 hours, equally

divided between the parties.

. 11. At the conclusion of final argu-

ments as provided under section 10, the Sen-

ate, without intervening action, except for

deliberation if so ordered under the Rules of

Impeachment, shall vote on the article of

impeachment.

The PRESIDENT pro tempore. The

majority leader.

ADJOURNMENT UNTIL TOMORROW

Mr. SCHUMER. Mr. President, I ask

unanimous consent that the trial ad-

journ until 12 noon tomorrow, Wednes-

day, February 10; and that this order

also constitute the adjournment of the

Senate.

There being no objection, at 5:10

p.m., the Senate, sitting as a Court of

Impeachment, adjourned until Wednes-

day, February 10, 2021, at 12 noon.

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D106

Tuesday, February 9, 2021

Daily Digest

Senate

Chamber Action

Routine Proceedings, pages S589–S613

Measures Introduced: One resolution was intro-

duced, as follows: S. Res. 47.

Page S589

Measures Passed:

Procedures Concerning the Article of Impeach-

ment: By 89 yeas to 11 nays (Vote No. 56), Senate

agreed to S. Res. 47, to provide for related proce-

dures concerning the article of impeachment against

Donald John Trump, former President of the United

States.

Pages S589–90

Impeachment of Former President Trump—

Agreement: Senate resumed consideration of the Ar-

ticle of Impeachment against Donald John Trump,

former President of the United States, taking the fol-

lowing actions:

Pages S589–S609

By 56 yeas to 44 nays (Vote No. 57), Senate

agreed that it be in order for former President Don-

ald John Trump to be subject to a Court of Im-

peachment for acts committed while president.

Page S609

A unanimous-consent agreement was reached pro-

viding for further consideration of the Article of Im-

peachment against Donald John Trump, former

President of the United States at approximately 12

noon, on Wednesday, February 10, 2021. Page S613

Executive Communications: Pages S609–12

Executive Reports of Committees: Page S612

Additional Cosponsors: Page S612

Record Votes: Two record votes were taken today.

(Total—57) Pages S589–90, S609

Adjournment: Senate convened at 1 p.m. and ad-

journed at 5:10 p.m., until 12 noon on Wednesday,

February 10, 2021. (For Senate’s program, see the re-

marks of the Majority Leader in today’s Record on

page S613.)

Committee Meetings

(Committees not listed did not meet)

BUSINESS MEETING

Committee on Environment and Public Works: Com-

mittee ordered favorably reported the nomination of

Michael Stanley Regan, of North Carolina, to be Ad-

ministrator of the Environmental Protection Agency;

and an original resolution authorizing expenditures

by the committee and adopted its rules of procedure

for the 117th Congress.

NOMINATION

Committee on Homeland Security and Governmental Af-

fairs: Committee concluded a hearing to examine the

nomination of Neera Tanden, of Massachusetts, to be

Director of the Office of Management and Budget,

after the nominee, who was introduced by Senators

Klobuchar and Booker, testified and answered ques-

tions in her own behalf.

House of Representatives

Chamber Action

The House was not in session today. The House

is scheduled to meet in Pro Forma session at 9 a.m.

on Thursday, February 11, 2021.

Committee Meetings

ORGANIZATIONAL MEETING

Committee on the Budget: Full Committee held an or-

ganizational meeting. The Committee adopted its

rules for the 117th Congress.

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CONGRESSIONAL RECORD — DAILY DIGEST D107 February 9, 2021

MISCELLANEOUS MEASURE

Committee on Education and Labor: Full Committee

held a markup on Committee Print to comply with

reconciliation directives included in section 2001 (b)

of the Concurrent Resolutions on the Budget for Fis-

cal Year 2021, H. Con. Res. 11, and S. Con. Res.

BACK IN ACTION: RESTORING FEDERAL

CLIMATE LEADERSHIP

Committee on Energy and Commerce: Committee on En-

vironment and Climate Change held a hearing enti-

tled ‘‘Back in Action: Restoring Federal Climate

Leadership’’. Testimony was heard from public wit-

nesses.

CONSTITUTIONAL MEANS TO PREVENT

ABUSE OF THE CLEMENCY POWER

Committee on the Judiciary: Subcommittee on the Con-

stitution Civil Rights and Civil Liberties held a

hearing entitled ‘‘Constitutional Means to Prevent

Abuse of the Clemency Power’’. Testimony was

heard from public witnesses.

STATE OF THE U.S. MARITIME INDUSTRY:

IMPACTS OF THE COVID–19 PANDEMIC

Committee on Transportation and Infrastructure: Sub-

committee on Coast Guard and Maritime Transpor-

tation held a hearing entitled ‘‘State of the U.S.

Maritime Industry: Impacts of the COVID–19 Pan-

demic’’. Testimony was heard from public witnesses.

Joint Meetings

No joint committee meetings were held.

COMMITTEE MEETINGS FOR WEDNESDAY,

FEBRUARY 10, 2021

(Committee meetings are open unless otherwise indicated)

Senate

Committee on the Budget: to hold hearings to examine the

nomination of Neera Tanden, of Massachusetts, to be Di-

rector of the Office of Management and Budget, 10 a.m.,

SD–608.

House

Committee on Agriculture, Full Committee, organizational

meeting and business meeting on a proposal to satisfy the

Committee’s reconciliation instructions as required by S.

Con. Res. 5, 2 p.m., Webex.

Committee on Financial Services, Full Committee, markup

on Committee Print of Providing for reconciliation pursu-

ant to S. Con. Res. 5, the Concurrent Resolution on the

Budget for Fiscal Year 2021; and legislation to comply

with the reconciliation directive included in section 2001

of the Concurrent Resolution on the Budget for Fiscal

Year 2021, S. Con. Res. 5, 12 p.m., 2128 Rayburn and

Webex.

Committee on Homeland Security, Full Committee, hearing

entitled ‘‘Homeland Cybersecurity: Assessing Cyber

Threats and Building Resilience’’, 2 p.m., Webex.

Committee on House Administration, Full Committee, or-

ganizational meeting, 1 p.m., Webex.

Committee on Small Business, Full Committee, markup on

Committee Print providing for reconciliation pursuant to

S. Con. Res. 5, the Concurrent Resolution on the Budget

for Fiscal Year 2021, 5 p.m., 2360 Rayburn and Webex.

Committee on Transportation and Infrastructure, Full Com-

mittee, markup on legislation on proposals to comply

with the reconciliation directive included in section 2001

of the Concurrent Resolution on the Budget for Fiscal

Year 2021, S. Con. Res. 5, 11 a.m., 2167 Rayburn and

Webex.

Committee on Ways and Means Full Committee, begin

markup on legislation on proposals to comply with the

reconciliation directive included in Section 2001 of the

Concurrent Resolution on the Budget for Fiscal Year

2021, S. Con. Res. 5, 10 a.m., 1100 Longworth and

Webex.

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CONGRESSIONAL RECORD — DAILY DIGEST

Congressional Record

The Congressional Record (USPS 087–390). The Periodicals postage

is paid at Washington, D.C. The public proceedings of each House

of Congress, as reported by the Official Reporters thereof, are

printed pursuant to directions of the Joint Committee on Printing as authorized by appropriate provisions of Title 44, United

States Code, and published for each day that one or both Houses are in session, excepting very infrequent instances when

two or more unusually small consecutive issues are printed one time. ¶ Public access to the Congressional Record is available online through

the U.S. Government Publishing Office, at www.govinfo.gov, free of charge to the user. The information is updated online each day the

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Government Online Bookstore at: bookstore.gpo.gov. Mail orders to: Superintendent of Documents, P.O. Box 979050, St. Louis, MO

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D108 February 9, 2021

Next Meeting of the SENATE

12 noon, Wednesday, February 10

Senate Chamber

Program for Wednesday: Senate will continue consider-

ation of the Article of Impeachment against Donald John

Trump, former President of the United States.

Next Meeting of the HOUSE OF REPRESENTATIVES

9 a.m., Thursday, February 11

House Chamber

Program for Thursday: House will meet in Pro Forma

session at 9 a.m.

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