Background Briefing With White House Counsel

In advance of the formal answer to the Senate summons, the White House counsel held a background press briefing with media.  Here’s the transcript as released:

MR. GIDLEY: Thank you very much. Good afternoon, everyone. Thanks for taking the time to join this background call regarding impeachment.

The ground rules are as follows: Information on this call is on background, and can attributable to “sources close to the President’s legal team.”

SENIOR ADMINISTRATION OFFICIAL: Thanks, Hogan. I’m going to start, and then I’m sure my colleague is going to want to jump in.

So, from a procedural standpoint, we’re going to be filing in the next — probably next hour or two — our answer to the summons. [pdf Answer Here] This was the summons, which is part of the process that the Senate sent over to us with the articles of impeachment. We are issuing a very detailed response. This is not to be confused with our brief; our brief is not due until Monday.

The response that we will be putting forward will address both the procedural and the substantive issues raised in the articles of impeachment. When I talk about the procedural aspects, I’m referring to the procedural irregularities that took place during the course of the investigation. When we talk about substance, we’re referring to legal threshold standards, as it relates to impeachment under the Constitution. So, that’s going to give you an overview.

The answer — our response — will respond to both of those. I’ll give you a taste of it, a little bit, so that you have a sense of the tone of what we’re going to say. Our first response reads as follows:

The Honorable Donald J. Trump, President of the United States, hereby responds: The Articles of Impeachment submitted by House Democrats are a dangerous attack on the right of the American people to freely choose their President. This is a brazen and unlawful attempt to overturn the results of the 2016 election and interfere with the 2020 election — now just months away. This highly partisan and reckless obsession with impeaching the President began even before his election and continues to this day.

We next assert that:

The Articles of Impeachment are constitutionally invalid on their face. They fail to allege any crime or violation of law whatsoever, let alone “high Crimes or Misdemeanors.”

That is all required, of course, by the Constitution itself. So that’s why I’m saying both the process and the legal issues are being impacted here. And then we will respond to each and every one of the two articles separately.

SENIOR ADMINISTRATION OFFICIAL: Yeah, and I — this is [a source close to the President’s legal team]. I think, at the end, there’s a lot of detail in the response. The conclusion, at the end of the day, is that the articles of impeachment violate the Constitution. They are defective in their entirety. They are the product of invalid proceedings that flagrantly denied the President any due process rights. They rest on dangerous distortions of the Constitution that would do lasting damage to our structure of government.

The bottom line is: In the end, this entire process is nothing more than a dangerous attack on the American people themselves and their fundamental right to vote.

SENIOR ADMINISTRATION OFFICIAL: Let me give you some of the individual responses to the two articles of impeachment. With regard to the first article of impeachment, we are going to assert that they must be rejected because the — and it relates to the first article of impeachment — it fails on its face to state an impeachable offense. It alleges no crimes at all, let alone high crimes and misdemeanors, as required by the Constitution. In fact, it does not allege any violation of law whatsoever. We assert that the House Democrats’ abuse of power claim would do lasting damage to the separation of powers under the United States Constitution.

We then get into some very specific allegations, regarding the phone call itself, as it relates to this abuse of power claim. I will tell you this: We will address both the April 21st and July 25th phone calls. We will be making it very clear what President Zelensky said, as well as what the President of the United States said on those calls. We will again reiterate that the House record establishes that President Zelensky and his top aides have never said there was a quid pro quo situation, as that issue came up.

And remember: This case started — first it was going to be quid pro quo. Actually, first it would be extortion, then bribery, then quid pro quo, then it becomes abuse of power — with the word “quid pro quo” never showing up in the actual articles of impeachment.

We’re raising it because we’re going to remind the American people of exactly what this is all about and how it started. So that’s how that one is going to start.

We’re going to also take a look at the fact that the bilateral presidential meeting that was so often discussed actually did take place. The security assistance was sent. And all that took place without the Ukrainian government announcing any investigations.

SENIOR ADMINISTRATION OFFICIAL: With respect to the second article of impeachment, our answer states very clearly that the second article of impeachment also fails on its face to state and impeachable offense. It does not allege any crime or violation of law whatsoever.

To the contrary, the President’s assertion of legitimate executive branch confidentiality interests, grounded in the separation of powers, cannot constitute obstruction of Congress.
Furthermore, the notion that President Trump obstructed Congress is absurd. President Trump acted with extraordinary and unprecedented transparency by declassifying and releasing the transcript of the July 25th call that is at the heart of this matter.

SENIOR ADMINISTRATION OFFICIAL: Let me add one other thing because this will apply to both — this will apply to both articles, but this is contained in our answer, and I think it’s important for you to have a sense of how that sets forth.

We’re also going to go to the process issue. So we’re going to say that House Democrats ran a fundamentally flawed and illegitimate process that denied the President every basic right, including the right to have counsel present, the right to cross examine a witness, and the right to present evidence. And despite all of this, the information that the House Democrats actually assembled disproves their claims against the President. We’re going to then assert — so that’s a process aspect.

Then we’re going to say the President, at all times, acted with full, constitutional legal authority in our own national interests, and continued his administration’s policy of unprecedented support for Ukraine, including the delivery of lethal military aid that was denied to the Ukrainians by the prior administration.

SENIOR ADMINISTRATION OFFICIAL: Again, with respect to article two, obstruction of Congress: We will state that the Trump administration replied appropriately to the subpoena and identified their constitutional defects. And this is an important point: Tellingly, House Democrats did not seek to enforce these constitutionally defective subpoenas in court. To the contrary, when one subpoena recipient sought a declaratory judgement as to the validity of the subpoena he had received, House Democrats quickly withdrew the subpoena to prevent the court from issuing a ruling.

SENIOR ADMINISTRATION OFFICIAL: The way that this — so, I think what you’re getting at — what we’re giving you — this is about a six-page document, is the answer. It’s going to address both procedural irregularities, and substantive irregularities, including the lack of constitutional support for the position that the House advocated in the articles of impeachment.

SENIOR ADMINISTRATION OFFICIAL: And it will address the articles both on the law and the facts.

MR. GIDLEY: Okay. Moderator, we’d like to open for questions now. But I want to remind the group one more time, if I may, that, again, the attribution here is “source close to the President’s legal team.” And, second, is a reminder that the content is embargoed until 5:00 p.m.

With that, if you could open it up for questions, we’d appreciate it.

Q Hi, guys. Thank you so much for doing this. This is Franco Ordoñez, from NPR. In addition to Dershowitz, who says he is going to give an opening statement, will each of you be giving an opening statement? And can you give a flavor of what each of you will be saying? Will you be, kind of, discussing each article, as you just kind of broke down right now, in the opening statement?

SENIOR ADMINISTRATION OFFICIAL: So the way that we plan on it happening — of course, we’re coming up second in this process, as the House Managers will go first — is will do the initial opening, where he will address a variety of both substantive and constitutional and procedural position.

I will — as is planned right now, and this could change — I will go next, where I will be addressing more of an overview on the entire process, which will include, from beginning to end, on how we got there.

Now, we may break it up some. We don’t know yet — where, you know, my colleague goes for 45 minutes and I go for 45 minutes, and maybe we come back up later in the afternoon or evening. It’s going to depend on how the day is flowing.

And then, as to the question you’re asking about Alan and Ken Starr and Bob Ray, they will have discrete functions that they will be addressing at particular times. We don’t know what those times are yet; we just got to see how everything plays out.

Q Hey, it’s Zeke Miller, with AP. Thanks for doing the call. First of all, by any chance, is there any way you can move this on the record, since it’s awfully weird to have a call with “people close to a legal team” when we’re talking to the legal team?

And then, substantively, in terms of this response and the legal brief, do we expect this to sort of be the nature of the President’s defense here — sort of a broadside against the process? And are you concerned that that sort of rhetoric might not fly with the senators who have a more staid view of their chamber?

MR. GIDLEY: First things first, Zeke: Let me address the first question. The answer to that is no. You can call me after and we can have that conversation. But as far as the next one is concerned, I’ll turn it back over to the team.

SENIOR ADMINISTRATION OFFICIAL: Yeah, Zeke, this is [a source close to the President’s legal team]. I think it’s fair to say that this answer addresses both the law and the legal issues and the procedural issues — but also the facts, and takes the facts head on.

So I think it covers all of the issues, not just the procedural issues.

SENIOR ADMINISTRATION OFFICIAL: Right. And the brief — obviously, because we have a lot more we can write in the brief — will cover everything in much more detail.

SENIOR ADMINISTRATION OFFICIAL: This is just the answer. But it does cover — as I have said, it’s both procedural and the substantive legal. It also makes the argument that all you really need to look at are the articles of impeachment themselves. That — if you look at them, they allege no violation of law whatsoever. They don’t remotely begin to approach what you would need to begin (inaudible) impeachment.

So that will be an additional argument that we’ll make — we’ll be making.

Q Hi, there. It’s Michael Moates, with D.C. Chronicle. Hey, I was just curious: The statement that you guys are going to be submitting as your answer, will that be made public through — after — are you guys going to pre-release that? Or are we going to be waiting until after that is submitted to Congress?

SENIOR ADMINISTRATION OFFICIAL: It’s minutes away.

SENIOR ADMINISTRATION OFFICIAL: Yeah, the plan is: It’s embargoed until 5:00 p.m., and we expect to send you guys the text at that time.

SENIOR ADMINISTRATION OFFICIAL: You’ll have the answer, in other words.

Q Good afternoon. This is Jon Decker, from Fox. Thank you for doing this. Republican lawmakers and those speaking on behalf of the President, including yourselves, have repeatedly said that there must be an underlying (inaudible) to meet the standard for impeachment and removal. And you’ve clearly made that point in the answer that you’ve just spoken about.

As you know, yesterday, the Government Accountability Office released a report saying that it was, in fact, illegal for President Trump to withhold military aid from Ukraine to pressure them to interfere in the 2020 election.

Based on this new development, in your view, wouldn’t you each agree that the Republicans’ own standard on impeachment and removal has now been met? Thank you.

SENIOR ADMINISTRATION OFFICIAL: Those aren’t — we’re dealing with discrete articles of impeachment. That’s what this — so, this is not twelve reports later, two week later. It’s a discrete — they brought up two articles of impeachment. That is what’s before the United States Senate.

And we obviously disagree with that conclusion. And, in addition to that, if you look at the articles of impeachment, it’s not only that they don’t allege any crime; they don’t allege any violation of any law whatsoever.

Q Hi, this is Andrew Feinberg, with Breakfast Media. Thanks for doing the call. It sounds a lot like the defense that you’re going to put forth is almost identical to what’s already been said by Republican members of the House, and the President, in his letter just before the vote on the impeachment articles. Is there anything new that we should expect to hear that perhaps addresses the actual allegations being made, rather than the process on these sort of broad brush arguments about the articles of impeachment not mentioning crimes? Anything that hasn’t already been brought up by the House, perhaps?

SENIOR ADMINISTRATION OFFICIAL: There’s no question that, during the course of the presentations and the proceedings before the Senate and then the briefs that we’re going to be filing, we will be addressing both procedure irregularities — again, ignore those (inaudible) implications as well. And also, substantive issues that arise, including facts.

So all of that will be addressed. So, don’t — there shouldn’t be not misunderstanding that this is a factual — an attack only on process. We’re not ignoring the tainted process, because it has serious constitutional implications, but we’re going to be — it’s going to be a full throttle address.

SENIOR ADMINISTRATION OFFICIAL: We will take the facts head on, and we believe that the facts will prove that the President — and have proven that the President did absolutely nothing wrong.

Q Good afternoon, [sources close to the President’s legal team]. This is Kelly O’Donnell, from NBC. When you look at the arc of how expect this trial to move forward, in terms of its length, your willingness or lack thereof to have witnesses, what is your latest thinking on what we should expect for your strategic ideas, going beyond this initial phase that you’re announcing today with the response to the articles?

SENIOR ADMINISTRATION OFFICIAL: Well, I think that, first — the first thing we have to look for is actually how the rules come out — the final rules, what the final agreements are. And I don’t think any of us — what we’re hearing is what you’re hearing, which is 24 hours, each side — which was under the Clinton model. That the witness decisions would be made after the presentation of the actual arguments by both counsels — or by the Managers and by our team.

And then, if there’s witnesses, it would proceed to a vote. And if they decide there’s going to be witnesses, there’d be depositions. And, by the way, if there’s witnesses, it means that, you know — Chuck Schumer takes the view that they hear the witnesses they demand. Well, you know, we would get to demand witnesses, too. It’s a two-way street.

So, we’re prepared for all contingencies. We’ll see what happens. It’s like any other trial; you prepare for the contingencies and you see what happens.

Q Hi, it’s Peter Baker, from the New York Times. Thanks for doing the call. Appreciate it. Quick question: You guys now have a lawyer on your team who has made the argument in the past that it is an impeachable offense to improperly invoke executive privilege to block an investigation. How do you — how are you going to square the statements and the positions that Judge Starr has taken in the past now that he’s on your team and will be on the Senate floor in the trial?

SENIOR ADMINISTRATION OFFICIAL: Yeah, let me address this, because (inaudible) obviously (inaudible). Obviously, the issue of the obstruction of Congress is a significant one, constitutionally. I think he will be very — we will be very pleased with Judge Starr’s presentation on how he’s going to move this forward, what he sees are the issues, and the different aspects of the fact of the activities that we’re involved in, in this situation with Bill Clinton’s, are markedly different than what even the allegations are here.

And remember: It was — Bill Clinton was asserting executive privilege over private conduct. This is markedly different. And I think that that’s a clean distinction and clean (inaudible).

SENIOR ADMINISTRATION OFFICIAL: All right. And, hey, on more thing, if I may address, too. Zeke, I believe you asked the question about the GAO. I just want to make this point. A couple things: First of all, the aid was released, and it was released before the deadline.

Second of all, it’s pretty clear that GAO is just inserting itself in today’s news cycle. Let’s be clear: They made a lot of rulings in the past that they’ve had to go back on, rulings they’ve had to change — and the media didn’t say a word about it when they went after Obama, they went after Clinton, they went after Bush. They’ve done it in the past.

So, this is nothing new from them. The fact is, we’re on strong legal footing, the President has done nothing wrong, and we believe that’s going to be borne out through this process.

Thanks everybody for the call.

[Transcript End]

[IMPEACHMENT ANSWER – pdf]