that it was russia that interfered in the 2016 elections and that there is no data that suggests ukraine was involved. that's the issue. so the precedent, bringing it all the way around to the beginning of the question, the precedent is that all of our adversaries, including vladimir putin, will understand that they can play to the whims of one person, whether that be president trump or some future president, democrat or republican, that can play to the whims in the interests and the personal political ambitions of one person and get that individual to propagate their propaganda, get them to undermine our own intelligence and law enforcement communities, that is a precedent that i don't think anybody here is willing and interested in sending, and that is truly what's at stake.

>> thank you, mr. manager. mr. chief justice. >> the senator from north dak a dakota. >> sending a question to the desk from myself for senator bozeman, whitaker and senator capital. >> thank you. >> the question for counsel for the president from senator hogan, bozeman, whitaker and capado. house managers say they have an overwhelming case. doesn't that assertion directly contradict their request for more witnesses?

>> mr. chief justice and senators, thank you for the question. and i think it does directly contradict their claim now that they need more witnesses. they said for weeks that it was an overwhelming case. they came here and they have said 63 times that it's overwhelming or proved beyond a reasonable doubt. manager nadler said twice today based on what they have already shown you it's been proved beyond any doubt. all right? if that's their position, why do they need more witnesses or evidence? it is completely self-contradictory. i'd like to address a couple other points while i'm here and i have a time. i don't know why i have to say it again. for the house managers to keep coming up here and saying and acting as if if you mention ukraine in connection with election interference, you even mention it, you're a pawn of vladimir putin because only the russians interfered in the

election, and there is not any evidence in the record they say that the ukrainians did anything. i read it before. i'll read it again. one of their star witnesses, fiona hill said that some ukrainian officials bet on hillary clinton winning the election, end quote. so it was quote, unquote quite evident they were trying to curry favor with the clinton campaign including trying to collect information on mr. manafort and on other people as well. so that was fiona hill. there was also the evidence in the record from "politico" article in 2017 that listed a whole bunch of ukrainian officials who had done things to try to help the clinton campaign and the dnc and to harm the trump campaign. in addition, two news organization, both "politico" and the financial times did their own investigative reporting and the financial times concluded that the opposition to president trump

led kiev's wider political leadership to do something they would have never attempted before, to intervene however indirectly in a u.s. election. that's the financial times. so the idea that there is no evidence whatsoever of ukraini n ukrainians doing anything to interfere in any way is just not true. they come up here and say it again and again. it's just not true. the other thing i'd like to point out, manager schiff keeps suggesting that somehow we're coming here and saying one thing and the department of justice is saying something else in court without litigation. that's also not true. we have been very clear every time. the position of the trump administration, like the obama administration is when congress sues in an article iii court against an executive branch official that is not a justiceable controversy and there is not jurisdiction over it. the house managers take the

position they have that avenue open to them. when we go to court, we will resist jurisdiction in the court. but if the house managers want to proceed to impeachment where they claim that they have an alternative mechanism available to them, our position is the constitution requires incrementalism in conflicts between the branches, and that means that first there should be an accomodation process and then congress can consider other mechanisms at its disposal such as contempt or such as squeezing the president's policies by withholding appropriations or other mechanisms to deal with that interbranch conflict or if they claim they can sue in court, sue in court. but that impeachment is a measure of last resort. now, earlier manager schiff suggested that today in court the department of justice went in and said there is no

jurisdiction and when the judge said, well, if there is no jurisdiction to sue, then what can congress do? and the doj, as he represented it, simply said, well, if -- if they can't sue, then they can impeach. as if that was the direct answer, just go from if you can't sue, the next step impeachment. now, that didn't seem right to me because i didn't think that is what doj would be saying and doj has put out a statement. i don't have a transcript of the hearing. they don't have a transcript ready yet as far as i know, but doj said, and this is a quote from the statement, the point we made in court is simply that congress has numerous political tools it can use in battles with the executive branch. potentially in some circumstances even impeachment, for example. it can hold up funding for the president's preferred programs, past legislations he opposes or refuse to confirm his nominees.

but it is absurd for chairman schiff to portray our mere description of the constitution as somehow endorsing his rushed impeachment process. thank you. >> mr. chief justice. >> senator from connecticut. >> thank you, mr. chief justice. mr. chief justice, i send a question to the desk for the house managers. >> thank you. >> the questin from senator blumenthal to the house managers: on april 24th, 2019, one day after the media reported that former vice president biden would formally enter the 2020 u.s. presidential race, the state department executed

president trump's order to recall ambassador marie. why did president trump want, in his words "to take her out"? >> well, mr. giuliani has provided the answer to that question. he stated publically that the reason they needed to get ambassador out of the way was that she was going to get in the way of these investigations that they wanted. this is the president's own lawyer's explanation for why they had to push out, why they had to smear the ambassador. so the president's own lawyer gives us the answer. and that ought to tell us something, that in a couple respects, one, that the

president's own agent has said that she was an impediment to getting these investigations, this anticorruption champion, this anticorruption champion who was at an awards ceremony for ukrainian anticorruption fighter, a woman who hads a sit thrown in her face and died after a painful death when he gets the word you need to come back on the next plane. now, one of the reasons the ukrainians knew they had to deal with rudy giuliani is that rudy giuliani was trying to get this ambassador replaced. and, you know, he succeeded. he succeeded. and that sent a message to the ukrainians that if rudy giuliani had the juice with the president of the united states, the power of the president of the united

states, this was somebody that not only had the ear of the president that could make things happen. so the short answer is rudy giuliani tells us why she had to go. now, why they had to smear her, why the president couldn't simply recall her, that's harder to explain. but the reason they wanted her out of the way is they wanted to make these investigations go forward and they knew someone there fighting corruption was getting in the way of that. now i want to say with respect to some of the arguments against having the testimony of john bolton. these are some of the former national security advisers who have been called to hearings and depositions. the national security adviser for president carter provided eight hours of public hearing testimony and additional deposition testimony before the senate judiciary committee subcommittee to investigate individuals regarding the interests of foreign governments. admiral poindexter provided 25

hours and 20 hours of deposition testimony before the house select committee to investigate covert arms transactions with iran. the former national security adviser for president ronald reagan, 20 hours of hearing testimony and 3 hours of deposition testimony. two hours of public hearing testimony before the senate committee on governmental afires. ka kond lisa rice, three hours of public testimony, addition nad closed session system. suzanne rice on how the obama administration handled identification of u.s. citizens in u.s. intelligence reports. there is ample precedent where it is necessary to have testimony of national security advisers. now, you saw, i think,

president's counsel dancing on the head of a pin in trying to explain why they're before you arguing we can't have these people come here. the house should sue them in court and while they're in court saying the court can't hear it. i have to say i have a great understanding for the difficulty of that position. i wouldn't want to be in the position of having to advocate that argument. but it goes to the demonstration of bad faith here. how can you be before this body saying, you have got to go to court. the house is derelict because it didn't go to court and go to the same court and say the house shouldn't be here. how do you do that? now, they say, well, the house is in court so the house must think it's okay even though we don't think so and we're arguing that and we will take it all the way up to the supreme court if we have to. we don't think that's an adequate remedy. that's the whole problem. when you have bad faith in the

vocation of privilege when nonassertion of privilege, when a president that wants to continue to cover up his wrongdoing indefinitely, a president that's trying to get help in the next election, that process of going endlessly up and down the courts with a duplicitous counsel arguing one place you can do it and one place you can't shows the flaw with a precedent that congress must exhaust all remedies before it can insist on answers with the ultimate remedy of impeachment. >> majority leader is recognized. >> chief justice, i suggest we take a five-minute break. >> without objection, so ordered. all right. hello, everybody. i'm chris cuomo. we're taking a break here from questioning. this is the final day of

questions. after this there will be a shift in this process, and you could argue it is the most crucial phase because after this questioning period, you are going to have a decision about whether or not there is a vote on witnesses. and if so, are there enough republicans who will feel the need to get to the people who actually knew what was going on here in order to sell their ultimate vote decision back home? now, senator lamar alexander is one of the senators who might be in play. he might be open to witnesses as a republican. he has announced that he's not running again and he's also announced that he's going to make his decision about whether or not he thinks there should be witnesses tonight. so we will be watching for that. we believe it must come after this process, so we'll keep an eye on it. now, what is the state of play? what does it mean? let's bring in the team. profess professor toobin, how do you see

it? >> it looks like there were 49 in favor of witnesses. so the question is, what about the other one or two votes. the vibe that we have been picking up from our people inside had been very optimistic for the republicans, that both alexander and lisa murkowski would vote no on witnesses, end of story, verdict tomorrow. lisa murkowski, however, threw a bit of a curveball i guess it was about an hour ago. she asked a question of the president's lawyers, and she said, you know, why shouldn't we have bolton testify? and, frankly, to take a dated reference, i thought that the lawyer for the president was like jackie gleason, didn't have a very good reason because bolton is a key witness.

now, does that mean lisa murkowski is going to vote for witnesses? i don't know. but it certainly was a sign that she's still thinking about it. if she votes yes, that turns it into a 50/50 proposition. what does that mean? >> it means you lose. >> not clear. probably. probably. but in 1868, the chief justice did break a tie. >> correct. >> and he -- he -- he was criticized for that and later he said -- and then he didn't. but it certainly would put chief justice roberts in a difficult position. he probably, i agree, would defer and say, this is a no vote. >> there is nothing in the current set of rules as refined by mcconnell allowing the chief justice to vote. >> it's silent on that issue. >> right. so there is no affirmative right given there. >> correct. >> let's go to manu raju to get a sense of what he's hearing. what are you picking up. >> reporter: the republican

leadership still believes they will get the votes to prevail and defeat the motion tomorrow night to move forward on witnesses and documents and that they could move to acquit president trump by as soon as tomorrow night, and the reason why they believe that they essentially would have the votes. they don't know that for sure, that key vote, swing vote a retiring tennessee republican has not said yet which way he's coming down. i talked to him just this past evening around dinnertime. he said i'm standing right up in the middle right now. he would not say one way or the other, but he did tell me he would make his announcement tonight after the questioning period is done. it will be decisive because we do expect susan collins of maine and mitt romney, both of them to vote to move forward for witnesses and documents. we don't know where lisa murkowski is. her question as jeffrey was saying, raises some questions about whether she will support a motion for subpoenas for

documents and witnesses and if she does, then that puts -- those are three votes. puts it at 50-49 depending on from alexander goes. does he side with the republicans and make it 50/50 and then essentially the expectation being roberts would not break that tie. so that means that lamar alexander's announcement that is going to come tonight could be decisive and ultimately determine whether or not president trump's trial ends as quickly as tomorrow night or if it drags out for another week or even longer. so that is going to be obviously what all eyes are on that. >> okay. >> and, chris, he told me that they just were discussing and touching base, not coordinating their statements. >> but obviously that would be the right person to be meeting with. thank you very much, manu. let's take a break quick. when we come back, we will discuss, well, why would they be meeting? we all know. what are the likely outcomes. what happens based on the outcome next.

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what is another way to look at it? >> i thought it was a great piece. why would she get into the middle of this timely, important question if she wasn't trying to throw some kind of signal as to where she was going. you know, it isn't totally a telling question, but why raise it? and, you know, americans understand this issue. we haven't seen 75% of americans agree upon the time of day since trump has been elected. yet, 75% want witnesses. >> you threw a wild card out there of what if bolton says something between now and tomorrow. what would be the impetus? >> i notice there is a tendency with people associated with this administration to want to be a part of this historic moment. you know, we have the greatest hits of american scandals, bill barr, alan dershowitz who just have to get into it. i think it might be hard for bolton to see this moment pass without at least throwing something in there, even at a

quite far enough zoom that, you know, it doesn't implicate anything to maybe throw things off. we didn't expect anything. >> we did not. >> like what we heard last week. so i think there is a possibility. >> paul bernstein? >> alexander has a chance to make this perhaps a bipartisan inquiry. if he wants to be courageous and a hero. as his predecessor from tennessee in watergate, who was indeed at the beginning very partisan, wanted to support president nixon and then started raising the question, what does the president know and when did he know it? >> i started -- >> lamar alexander started his career working for him. >> that's right. he has a chance here because if he goes, if he wants witnesses, if he wants the equivalent of john dean sitting across from me in the person of bolton, look, all along the republicans have been saying, well, we don't have

anybody that's been a witness to this. there now is a witness who can give us the information that is necessary to know the answer to that question of when was it first discussed by the president of the united states. bolton knows. bolton has a lot to deliver. we keep hearing the phrase, the world is a greatest deliberative body. the senate hasn't been for a long time. but in this event, it certainly has given the conduct of the republicans -- >> the senator said today it used to be the senate. now it's -- >> the alexander pulls some republicans with him. do i expect it? no. >> help me figure this out. alexander is known to be friends with mitch mcconnell, right? >> yes. >> why announce this vote tonight when it means so much to mitch mcconnell. >> let me give you the three words you are never allowed to say on cable news. i don't know. i just think it's a strange thing he's doing.

i don't get it. >> all right. well, let's see if this helps. we're back in action. the question from the senator is for the counsel for the president. members of the house permanent select committee on intelligence of which manager schiff sits as chairman conducted a number of depositions related to this impeachment inquiry. one of the individuals deposed was intelligence community inspector general michael atkinson. has the white house been provided a copy of this deposition transcript? do you believe this transcript would be helpful? if so, why?

>> mr. chief justice and senator, thank you for that question. we have not been provided that transcript. my understanding is that the inspector general for the intelligence community, mr. atkinson, testified in executive session and they have retained that transcript in executive session. it was not transmitted to the house judiciary committee and therefore under the terms of house resolution 660 it was not turned over to the white house counsel, so we have not seen it. i just want to clarify. we don't think there is any need to start getting into more evidence or witnesses, but if one were to start going down that road, i think that that transcript could be relevant because my understanding from public reports is that there were questions asked of the inspector general about his interactions with the whistleblower.

there is some question in public reports about whether the whistle employeer was entirely truthful with the inspector general on forms that were filled out and whether or not, you know, certain representations were made about whether or not there had been any contact with congress. and that then ties into the contact that the whistleblower apparently had with the staff of the committee, which we also don't know about. so if we were to go down the road, we don't think it's necessary. we think that this -- these articles of impeachment should be rejected. but if one were to go down the road, if any more evidence or witnesses, it would certainly be relevant to find out what the inspector general of the intelligence community had to say about the whistleblower along with the other issues that we mentioned about the whistleblower's bias, motivati n motivation, connections with the situation of the bidens. apparently if he worked with vice president biden, he worked on ukraine issues according to

public reports. how does that all tie in? all of those things would become relevant in that event. thank you. >> thank you, counsel. >> mr. chief justice. >> the senator from alabama. >> thank you, mr. chief justice. i send a question to the desk on behalf of myself, senators mancin and cinema. >> thank you. >> the question from senators jones, mancin and cinema is directed to the house managers. so much of the questions and answers as well as the presentations have focussed on the completeness of the house record. should the house have initiated a formal accommodations process

with the administration to negotiate for documents and witnesses after the passage of house resolution 660? and regardless of whether the house record is sufficient or insufficient to find the president guilty or not guilty, what duty, if any, does the senate owe to the american public to ensure that all relevant facts are made known in this trial and not at some point in the future? >> senators, thank you for the question. it was apparent from the very beginning when the president announced that they would fight all subpoenas when the white house counsel issued its october 8th diatribe saying they would not participate in the inquiry,

that they were not interested in any accomodation. we tried to get don mcgahn to testify. we tried that route. we have been trying that route for nine months now. we tried for quite some time before we took that matter to court with absolutely no success. and i think what we've seen is there was no desire on the part of the president to reach any accomodation. quite the contrary. the president was adamant that they were going to fight in every single way. now, if they had an interest in accomodation, we wouldn't be before you without a single document. there would have been hundreds and hundreds of documents provided. we would have entered an accomodation process over claims of narrow claims of privilege as to this sentence or that sentence. they would have had to make a particularized claim that we could have negotiated over. but of course they did none of that. they said your subpoenas are

invalid. you have to depart from the bipartisan rules of how you conduct your depositions. essentially our idea of a combination is you have to do it our way or the highway. and the president's instructions, the president's marching orders were go pound sand. now, what is the senate's responsibility in the context of a house impeachment for which there was such blanket obstruction. bear in mind if you compare this to the nixon impeachment, richard nixon told his people to cooperate, provided documents to the congress. yes, there were some that with held and that led to litigation and the president lost that litigation. but the circumstances here are very different. frankly, the president could have made this difficult case but didn't because of the wholesale nature of the obstruction. in terms of the senate responsibility, the constitution says the senate shall have the sole power to try all impeachments. when sitting for that purpose,

they should be on either oath or affirmation. so you have the sole power. one tells the house that we have the sole power to conduct an impeachment proceeding and again the process we used and they can repeat this as often as they like is the same process used in the clinton and nixon impeachments. i'm sure clinton and nixon thought that was unfair, but nonetheless we used the same process. but here you have the sole power to try the case. and if you decide that one week is not too long in the interest of a fair trial to have depositions of key witnesses, that is for you to decide. you get to decide how to try the case. and, so, if you decide that you have confidence in the chief justice of the supreme court to make decisions about materiality and relevance and privilege and make those line by line redactions if they're warranted, if you decide, you trust the

chief justice to decide whether privilege is being applied properly or improperly to conceal crime or fraud, you have the sole power to make that happen. that is every bit within your right. and we would urge you to do so. counsel for the president says the constitution doesn't require that. the constitution doesn't prohibit that. it gives you the sole power to try this case. and under your sole power, you can say, we have made a decision. we're going to give the parties one week. we're going to let the chief justice make a fair determination of who is pertinent and who's not. we're not going to let the house decide who the president's witnesses are. we're not going to let the president decide who the house witnesses are. we will let them submit their top priorities and let the chief justice decide who is material and who's not. that is fully within your power.

and, so, in sum and substance, there is no evidence of an intention, a willingness in any way, shape or form to accommodate in the house. if there was, we wouldn't be here. instead there was, we will fight all subpoenas and under article two i can do whatever i want. and now we're here. and they make the astounding claim that their case is so good, let them try without witnesses. that wouldn't fly before any judge in america. and it shouldn't fly here either. >> thank you, mr. manager. >> mr. chief justice. >> senator, i'm sorry? yes, the senator from tennessee. >> i send to the desk a question on behalf of myself and senators lee and johnson. >> thank you.

>> the question from senator blackburn and senators lee and johnson is for counsel for the president. what was the date of the first contact between any member of the house intelligence committee staff and the whistleblower regarding the information that resulted in the complaint? how many times have house intelligence committee members or staff communicated in any form with the whistleblower since that first date of contact?

>> mr. chief justice, senator, thank you for that question. the answer is we don't know. nobody knows. we don't know when the first contact was. we don't know how many contacts there were. we don't know what the substance of the contact was. that all remains shrouded in some secrecy. as i said a moment ago, we think that the way this case has been presented, this body should simply acquit. there is no need to get more evidence to probe into that. but if we were to go down the road of any evidence or witnesses, then those are certainly relevant questions and relevant things to know about, to understand what those contacts were, what the whistleblower's motivation was, what the connection between the whistleblower and any staffers and how that played any role in the formulation of the complaint, that it would all be relevant to understand how this whole process began.

now, i do want to mention something else while i have a moment. in response just to some things that manager schiff said. the house managers come up. it seems like they keep saying the same thing and we keep pointing to actual evidence and letters that disprove what they're saying. they come up and say the president said it's my way or the highway, blanket defiance. there is nothing you can do. and they say that, well, they would have accommodated if we were willing to participate in the accomodation process. the october 8th letter that the counsel for the president who mr. schiff says acts in bad faith and called duplicitous here on the house of the senate sent a letter on october 8th to mr. schiff and others explaining, quote, if the committees wish to return to the regular order of oversight requests, we stand ready to engage in that process as we

have in the past and it was well established bipartisan constitutional protections and a respect for the separations of powers enshrined from our constitution. that was followed up in an october 18th letter that i mentioned before, a letter that specified the defects in the subpoenas that had been issued. not blanket defiance, not simply we don't cooperate, specifying the legal errors in the subpoenas. and it concluded, quote, as i stated in my letter of october 8th, if the committees wish to return to the regular order of oversight requests, we stand ready to engage in that process as we have in the past in a manner consistent with well established constitutional protections and a respect for the separation of powers enshrined from our constitution. the president stood ready to engage in accommodations process. if anyone said my way or the high waway here it was the hous because the house determined

they wanted just to get their impeachment process done on the fastest track they could. they didn't want to do any accomodation or litigation. they didn't want anything to slow them down. they wanted to get it done as fast as they could so it was finished by christmas. it was a partisan charade from the beginning. it resulted in a partisan impeachment with bipartisan opposition. that's not something this chamber should condone. >> thank you, counsel. >> mr. chief justice. >> the senator from nevada. >> i have a question for the desk from the house managers. >> thank you.

>> the question from senator rosen is for the house managers. during the president's phone call with ambassador sondland, he insisted there was no quid pro quo involving the exchange of aid and a white house meeting for investigation. but he also said, according to sondland that the stalemate over aid will continue until president zelensky announces the investigations. isn't that the definition of the exact quid pro quo that the president claimed didn't exist? >> the short answer is question. that's exactly what a quid pro quo is. when someone says, i'm not going to ask you to do this but then says i'm going to ask you to do

this, that's exactly what happened here. sondland calls the president and the first words out of his mouth are, no quid pro quo. now, that's suspicious enough when someone blurts out there what we would find out is a fal false. but then the president goes on to say no quid pro quo at the same time zelensky has to go to the mic to announce these investigations. that's the implication, and he should want to do it. so no quid pro quo over the money, but zelensky has got to go to the mic. and if you have any question about the accuracy of that, you should demand to see ambassador taylor's notes, tim morrison's notes and of course sondland goes and tells ukraine about

this coupling of the money in order to get the investigations. and let me just, if i can, go through a little of the history of that. you got rudy giuliani and others trying to make sure the ukrai ukrainians make these statements in the run-up to the july phone call. this is the quid pro quo over the meeting. so they're trying to get the statement they want. they're trying to get the announcement, the investigations. around this time prior to the call, the president puts a freeze on the military aid. and then you have that call and the minute that zelensky brings up the defense support and the desire to buy more javelins, that's when the president immediately goes to the favor he wants. so the ukrainians at this point know that the white house meeting is conditioned on getting these investigations announced. but in that call, the minute military aid is brought up, the president pivots to the investigation he wants.

now, after that call, the ukrainians quickly find out about the freeze in aid. according to the former deputy foreign minister, they found out within days, july 25th is the call. by the end of july, ukraine finds out the az is frozen. the deputy foreign minister is told, keep this secret. we don't want this getting out. she had planned to come to washington. they canceled her trip to washington because they don't want this made public. and, so, in august there is this effort to get the investigations announced. that's the only priority for the president and his men. so the ukrainians know the aid is withheld. they know they can't get the meeting. they know the president wants these investigations. and the ukrainians like the americans can add up two plus two equals four. but if they had any question about that, sondland removes all doubt in warsaw when he goes over at the pence/zelensky

meeting and says, until you announce these investigations, you are not getting this aid. he makes explicit what they already knew, that not just the meeting but the aid itself was tied. he tells him directly the aid is tied to you doing the investigations. and it's at that point on september 7th when zelensky is told by sondland directly of the quid pro quo that zelensky finally capitulates and says, all right, i'll make the announcement on cnn. and then the president is caught. the scheme is exposed. the president is forced to release the aid. and what does zelensky do? he canceled the cnn interview. because the money was forcibly released when the president got caught. but that's the chronology here. it's make no mistake.

ukrainians are sophisticated actors. as one of the witnesses said, they found out very shortly after the hold. the ukrainians had good trade craft. they understand very quickly about this hold. and what would you expect when you're fighting a war and your ally is withholding military aid without explanation and the only thing they tell you they want from you are the announcement of these investigations. if it wasn't clear enough, they hammer them over the head with it. they told them on september 1st, you're not getting the money without announcing these investigations. they tell zelensky himself on september 7th, you are not getting the money without these investigations. and finally the resistance of this anti-corruption reformer zelensky is broken down. he desperately needs the aid. finally the resistance had broken down. all right. i'll do it. he's going to go on cnn. >> thank you, mr. manager. >> mr. chief justice. >> the senator from kansas.

>> thank you, mr. chief justice. i have a message to be sent to the desk, a question, and it is on my behalf, on the behalf of the senator rubio and senator rish. >> thank you. >> the question from senator moran, crepo and rish leads as follows. impeach. and removal are dramatic and consequential responses to presidential conduct, especially in an election year with a highly divided citizenry. yet, checks and balances is an important constitutional principal. does the congress have other means such as appropriations,

confirmations and oversight hearings less damaging to our nation? >> mr. chief justice, senators, thank you for the question. and, yes, congress has a lot of incremental steps, a lot of means short of impeachment to address friction or conflicts with the executive branch. and that was a point that i was making a moment ago with respect to what the department of justice had said in litigation today where the absolute immunity for senior advisers -- actually, i think it is a different issue in that case. i beg your pardon. but there is a dispute in that case about information requests. the point that doj was making there is the constitution requires incremental steps where there is friction between the branches. as i mentioned the other day, friction between the branches

and between congress and the executive on information requests in particular is part of the constitutional design. it's been with us since the first administration. george washington denied requests from congress for information about the negotiation of the treaty. so from the very beginning, there has been this friction leading to jockeying for position and accommodations and confrontation and leading to ways of working things out when congress demands information from the executives and the executive asserts to protect the institutional authorities of the executive branch, this fear where the executive can be able to keep information confidential. but the first step in response to that should be the accomodation process. that's something that actually furthers the constitutional scheme, to have the branches negotiate and try to come to an arrangement that addresses the legitimate needs of both

branches of the government. part of that accommodations process, or as it gets -- as the confrontation continues can involve congress exercising the levers of authority that it has so, for example, appropriations, not funding the policy priorities of a particular administration, or cutting funding on some policy priorities, or legislation, not passing legislation that the president favors, or passing other legislation that the president doesn't favor. or the senate has the power not to approve nominees. and as i'm sure many of you well know, holding up nominees in committee can be effective in some points in putting pressure on an administration to get particular policies kicked loose, things accomplished in a particular department or agency. all of these elements of the interplay of the branches of government, that's part of the constitutional design.

but impeachment is the very last resort for the very most serious conflict, where there is no other way to resolve it. so there are all of these multiple intermediate steps, and they all should be used. they all should be exercised in an incremental fashion. that's exactly what didn't happen in this case. there was no attempt at the accommodations. there was no attempt even to respond to the legal issues, the legal defects that the counsel for the president and the departments and agencies pointed out in each of the subpoenas that were issued by the house committees. and even the issue of agency counsel, there was no attempt to try to negotiate on that, and that's really something that in the past, even last april with the house committee and oversight and government reform with chairman cummings, there was a dispute about that and we wouldn't let the witness go without agency counsel.

and then we had a meeting with chairman cummings and it got worked out. and it was turned into a transcribed interview, i think, and the -- but agency counsel was permitted to be there. but the committee got the interview. they got to talk to the person. they got the information they wanted, but the checktive branch got to have agency counsel there to protect executive branch interests. and that's the way it's supposed to work. but there was no attempt at anything like that from the house in this case. thank you. >> thank you, counsel. senator from massachusetts. >> thank you, mr. chief justice. i send a question to the desk for the house managers. >> thank you. senator markey's questions for the house managers reads as follows. it has recently been reported that the russians have hacked

the ukrainian natural gas company burisma, presumably looking for information on hunter biden. our intelligence community has warned us that the russians will be interfering in the 2020 election. if donald trump is acquitted of these pending charges, but is later found to have invited russian or other foreign interference in our 2020 election, what recourse will there be for congress under the dershowitz standard for impeachment which requires a president to have committed a statutory crime? >> senator, absolutely no recourse, no recourse whatsoever. if, in fact, it were later to be shown that not only did the russians hack burisma to try to get dirt on the bidens and drip, drip, drip it out as they did in 2016 election, let's say it were

found that they did so at the request of the president of the united states. that in one of these meetings that the president had with vladimir putin, whose contents is unknown, that the president of the united states asked the president of russia to hack burisma because he couldn't get the ukrainians to do what he wanted, so now he was turning to the russians to do it. under the dershowitz theory of the case, under the president's theory of the case, that's perfectly fine. but that's not -- that's not how bad it is because it goes further than that. if the president went further and said to putin in that secret meeting, i want you to hack burisma. i couldn't get the ukrainians to do it. and i'll tell you what. if you hack burisma and you get me some good stuff, then i'm going to stop sending money to ukraine. and i'll go a step further.

i'm going to stop sendliing mon to ukraine so they can't fight you. what's more, the sanction we imposed on you on my behalf in the last election, i'm going to make them go away. i'm going to call it a policy difference. that's perfectly fine under their standard. that's not an abuse of power. you can't say that's criminal. yeah, it's akin to crime or maybe it's not, but that's what an acquittal here means. it means that the president is free to engage in all the rest of that conduct and is perfectly fine. and what's the remedy that my colleagues, represent president says you have to that abuse? well, you can hold up a nominee. that seems wholly out of scale with the magnitude of the problem.

that process of appropriations or nominations is not sufficient for a chief executive officer of the united states who will betray the national security for his own personal interest. he got on the phone with zelensky asking for this favor the day after bob mueller testifies. what do you think he will be capable of doing the day after he's acquitted here? the day after he feels, i dodged another bullet. i really am beyond the reach of the law. my attorney general says i can't be indicted. i can't even be investigated. he closed the investigation into this matter before he even opened it. and i can't be impeached either. i got the best of both worlds. i have bill barr saying i can't be vegtd, i can't be prosecuted. i can be impeached, however. that's what bill barr says.

but i have other lawyers that say i can't be impeached. that's a recipe for a president who is above the law. that not only is required by the constitution, quite the contrary. the founders knew coming from a monarchy that if they were going to give extraordinary powers to their new executive, they needed an extraordinary constraint. they needed a constraint commensurate with the evil which they sought to contain. that remedy is not holding up a nomination. the remedy they gave for an executive that would abuse their power and endanger the country, that would endanger the integrity of the elections was the power of impeachment. as one of the experts said in the house, if this conduct isn't an impeachable offense, then nothing is. >> thank you, mr. manager.

>> mr. chief justice? >> the senator from south carolina. >> i send a question to the desk on behalf of myself and senators alexander, cruz, portman, toomey, sullivan, murkowski, to the counsel for the president. >> thank you. the question from senator graham and the other senators is for the counsel for the president. assuming for argument sake that bolton were to testify in the light most favorable to the allegations contained in the articles of impeachment, isn't it true that the allegations still would not rise to the level of an impeachable offense,

and that, therefore, for this and other reasons, his testimony would add nothing to this case? >> mr. chief justice, senators. thank you for the question. let me start by just making very clear that there was no quid pro quo. there was no -- and there is no evidence to show that, there was not that sort of linkage that the house managers have suggested, but let me answer the question directly, which i understand to be assuming for the sake of argument that ambassador bolton would come and testify the way "the new york times" article alleges, the way his book describes the conversation, then it is correct that even if that happened, even if he gave that testimony, the articles of impeachment still wouldn't rise to an impeachable offense. and that's for at least two

reasons. let me explain that. the first is, on their face, the articles of impeachment as they have been laid out by the house managers, even if you take everything that's alleged in them, they don't as a matter of law rise to the level of an impeachable offense because even the house managers haven't characterized them as involving a crime. so that's one level of the answer that an impeachable offense would require a crime. even going beyond that to a second level. the theory of abuse of power that they have alleged, put aside whether or not it's a crime. the theory of abuse of power that they have asserted is not something that conforms with the constitutional standard of high crimes and misdemeanors. it depends entirely on subjective intent, and it is subjective intent alone. and as professor dershowitz explained and