Sekulow: What Has Taken Place in These Proceedings Is Not to Be Confused with Due Process

By Melanie Arter | January 21, 2020 | 3:04pm EST
(Photo by OLIVIER DOULIERY/AFP via Getty Images)
(Photo by OLIVIER DOULIERY/AFP via Getty Images)

( – The Senate impeachment trial cannot be confused with due process, because due process is designed to protect the accused, President Donald Trump’s personal attorney and a member of his impeachment defense team, Jay Sekulow argued Tuesday during the Senate impeachment trial.

The president has been denied the right to cross-examine witnesses, the right to access evidence, and the right to have counsel present at the impeachment hearings, he said.

“Senator Schumer said earlier today that the eyes of the founders are on these proceedings. Indeed, that’s true, but It is the heart of the Constitution that governs these proceedings. What we just heard, from Manager Schiff - courts have no role, privileges don't apply, what happened in the past, we should just ignore,” Sekulow said.

“In fact, Manager Schiff just said, try to summarize my colleague's defense of the president. He said it not in those words, of course, which is not the first time Mr. Schiff has put words into transcripts that did not exist,” Trump’s attorney said.

“Mr. Schiff also talked about a trifecta. I’ll give you a trifecta. During the proceedings that took place before the Judiciary Committee. The president was denied the right to cross-examine witnesses. The president was denied the right to access evidence, and the president was denied the right to have counsel present at hearings. That’s a trifecta – a trifecta that violates the Constitution of the United States,” he said.

Sekulow said that the Mueller report was “empty” on the issue of Trump allegedly colluding with Russia.

“One manager said that it is you that are on trial - the Senate. He also said that - and others did – that you’re not capable of abiding by your oath, and then we had the invocation of the ghost of the Mueller report. I know something about that report. It came up empty on the issue of collusion with Russia,” he said.

“There was no obstruction. In fact, the Mueller report, contrary to what these managers say today, came to the exact opposite conclusions of what they say. Let me quote from the House impeachment report, at page 16, ‘Although President Trump has at times invoked the notion of due process, an impeachment trial, an impeachment inquiry is not a criminal trial and should not be confused with it,’” Sekulow said.

“Believe me, what has taken place in these proceedings is not to be confused with due process, because due process demands, and the Constitution requires that fundamental fairness and due process - we're hearing a lot about due process - due process is designed to protect the person accused,” the president’s attorney said.

“When the Russia investigation failed, it devolved into the Ukraine. A quid pro quo, when that did not prove out. It was bribery, maybe extortion, somebody said. One of the members of the House said treason,” he said.

However, Sekulow said the actual articles of impeachment that were approved in the House had “a vague allegation about a noncrime allegation of abuse of power and obstruction of Congress.” 

On the issue of executive privilege, he pointed out that former President Barack Obama’s Attorney General Eric Holder was held in contempt because Obama exerted executive privilege.

“Members, managers, right here, before you today, who have said that executive privilege and constitutional privileges have no place in these proceedings, on June 28th, 2012, attorney general Eric Holder became the first United States attorney general to be held in both civil and criminal contempt. Why? Because president Obama exerted executive privilege,” Sekulow said. 

He quoted Rep. Adam Schiff (D-Calif.), chairman of the House Intelligence Committee and an impeachment manager, when Schiff defended the use of executive privilege in defending Obama’s use of executive privilege during contempt hearing against Holder.

“With respect to the Holder content proceedings, Mr. Manager Schiff wrote ‘The White House assertion of privilege is backed by decades of precedent that has recognized the need for the president and his senior advisors to receive candid advice and information from their top aides.’ Indeed, that’s correct, not because Manager Schiff said it, no, because the Constitution requires it,” Sekulow said.

He said that House Judiciary Chairman and impeachment manager Jerrold Nadler (D-N.Y.) said at the time that the effort to hold Holder “in contempt for refusing to comply with various subpoenas was ‘politically motivated’ and Speaker Pelosi called the Holder matter, and I quote ‘A little more than a witch hunt.’

Sekulow said the reason why the Senate is holding an impeachment trial is because Democrats have wanted to remove Trump from office since the day of his swearing-in. He called impeachment the Democrats’ “reinsurance” or “umbrella policy.”

“What are we dealing with here? Why are we here? Are we here because of a phone call? Or are we here before this great body because, since the president was sworn into office, there was a desire to see him removed? I remember in the Mueller report, there were discussions about, remember, insurance policies. Insurance policy didn’t work out so well, so then we moved to other investigations. I guess you would call it reinsurance, or an umbrella policy. That did not work out so well,” Sekulow said.


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