February 05, 2020 03:57 PM UTC

Cory Gardner's Official Impeachment Remarks, Annotated

• 8 Comments
• by: Colorado Pols

Colorado Sen. Cory Gardner (R-Yuma) waited to publicly offer his thoughts on impeachment until one hour before the Senate began voting on articles of impeachment against President Trump.

After the jump below, you can read the full transcript of Gardner’s remarks from today on the Senate floor…along with a few annotations from Colorado Pols.

Cory Gardner
Impeachment Remarks, Senate Floor
February 5, 2020

Thank you, Mr. President.

Over the last several months, several weeks the American people have watched Washington convulse in partisan accusations, investigations and endless acrimony. The division reached its high water mark as the United States Senate carried out the third presidential impeachment trial in our nation’s history. We saw over the last two weeks an impeachment process that included the testimony of 17 witnesses, more than 100 hours of testimony and tens of thousands of pages of evidence, records and documents which I successfully sought to make part of the record.

POLS NOTE: We’re not sure what Gardner is talking about here when he says he “successfully sought” to make evidence, records and documents part of the record. His public votes were in opposition to allowing more witnesses and documents.

After Gardner blocked hearing additional testimony from former National Security Adviser John Bolton last week, he said that they heard from 17 witnesses and didn’t need to hear from 18.

I fought hard to extend the duration of testimony to ensure that each side could be heard over 6 days instead of just 4. 

POLS NOTE: Huh?

But what we did not see over the last two weeks was a conclusive reason to remove the president of the United States, an act which would nullify the 2016 election and rob roughly half the country of their preferred candidate for the 2020 election.

POLS NOTE: Gardner knows that impeachment is not about “nullifying” the results of an election. This is disingenuous at best. 

“Roughly half” is a bit of a stretch since Trump claimed 46 percent of the vote in 2016. As we all know by now, Trump received three million FEWER votes than Hillary Clinton. 

Also, “roughly half” of the country absolutely wants Trump to be impeached. 

House managers repeatedly stated that they had established overwhelming evidence and an air-tight case to remove the president. 

POLS NOTE: They did. Even Lamar Alexander, who voted to acquit, acknowledged the House managers proved their case.

Yet they also repeatedly claimed they needed additional investigation and testimony. [Laughs] A case cannot be overwhelming and air-tight and yet incomplete at the same time. That contradiction is not mere semantics. In their partisan…their partisan race to impeach, the House failed to do the fundamental work required to prove its case, to meet the heavy burden.

POLS NOTE: This talking point has been widely circulated among Trump’s defenders as a way to dismiss calls for witnesses that the White House blocked. Article II of the impeachment case concerned with the President’s obstruction of the investigation.

We should also note that the reverse of Gardner’s argument is in fact entirely plausible: That you can have an airtight case and somehow look even more guilty if there’s more evidence to come out.

For the Senate to ignore this deficiency and conduct its own investigation would weaponize the impeachment power. A House majority could simply short-circuit an investigation, impeach, and demand the Senate complete the House’s work…what they were asking us to do. The founders were concerned about this very point. Alexander Hamilton wrote regarding impeachments, and I quote, “There will always be the greatest danger that the decision will be regulated more by the strength of parties than by real demonstrations of innocence or guilt.” 

POLS NOTE: This turns out to be a highly selective reading of Hamilton’s Federalist No. 65. This essay was about the powers of the Senate to try cases of impeachment, and the argument was for resting the power of the trial in the Senate as opposed to another body like the Supreme Court. The passage here is meant to justify the Senate as a place that can deliberately review the House’s case, despite the political heat of the moment.

Here, Gardner is using Federalist No. 65 to argue against deliberating more evidence in order to ensure the case is weighed  impartially. It’s not a long step to go further in arguing that the modern Senate Republicans just acquitted the President based on the strength of their party in the Senate rather than a real demonstration of innocence or guilt — exactly as Hamilton feared. 

More recently, Congressman Jerry Nadler, one of the House managers in the trial, said, “there must never be a narrowly voted impeachment or an impeachment substantially supported by one of our major political parties and largely opposed by the other. Such an impeachment will lack legitimacy.” Last March Speaker Nancy Pelosi said, “Impeachment is so divisive, so divisive to the country that unless there is something so compelling and overwhelming and bipartisan, I don’t think we should go down that path because it divides the country.”

POLS NOTE: Gardner is citing quotations from Nadler (which came during the Clinton impeachment) and Pelosi (from March 2019) that were made before the Ukraine revelations came to light, and if he were honest, he’d acknowledge that this timeline actually undermines his argument here. Pelosi was highly resistant to impeachment for close to two years; it took the “compelling and overwhelming” information in the whistleblower complaint to initiate the impeachment inquiry. 

Also, when Gardner says, “unless there is something so compelling and overwhelming,” presumably he is not thinking about the obvious evidence that the President of the United States attempted to extort a foreign government for his personal benefit.

The Framers knew that partisan impeachments could lead to impeachments over policy disagreements. Legal scholars like Charles Black have written that policy differences are not grounds for impeachment. But policy differences about corruption and the proper use of tax dollars are at the very heart of this impeachment. Nevertheless, that disagreement led the House to deploy this most serious of constitutional remedies. 

POLS NOTE: Here Gardner attempts to claim that asking a foreign government to investigate a private citizen and thus influence an American election is a “policy difference.” So, is it the “policy” of the Trump Administration to ask foreign countries to interfere in American elections?

Also, Gardner was present at numerous Senate committee meetings between 2014-16 in which American foreign policy toward Ukraine — including pressuring the country to oust its top prosecutor — was clearly and openly explained. 

The reason the Framers were concerned about partisan or policy impeachments, was their concern for the American people. Removing a president disenfranchises the American people. For a Senate of only 100 people to do that requires a genuine, bipartisan, national consensus. Here, especially only 9 months before an election, I cannot pretend the people will accept this body removing a president who received nearly 63 million votes without meeting that high burden.

POLS NOTE: First off, 63 million works out to 46.1% of the total number of votes for President in the 2016 election.  

As Michelle Goldberg wrote for The New York Times in December 2019:

On the surface it seems strange, this constant trumpeting of a vote total that is more than two million less than the total received by Trump’s opponent, Hillary Clinton. Trump didn’t just lose the popular vote — he lost it by a greater margin than any successful presidential candidate in American history. The right’s bombastic repetition of Trump’s 63 million could be just a propaganda trick meant to bully America’s anti-Trump majority into seeing itself as marginal, despite the more than 65 million votes Clinton received. But as I watched impeachment unfold, it seemed like something more than that — an assertion of whom Republicans think this country belongs to.

The House managers’ other argument to remove the president, Obstruction of Congress, is an affront to the Constitution. The Framers created a system in which the Legislative, Executive and Judiciary are evenly balanced. The Framers consciously diluted each branch’s power, making all three separate but equal, empowered to check each other. 

POLS NOTE: This is a strange argument to make from someone who is about to vote against the idea of “checks and balances.” And it goes without saying, but let’s say it anyway: Would Gardner be making this same argument if it were Obama?

The obstruction charge assumes the House is superior to the Executive branch. 

POLS NOTE: Nope. Obstruction is obstruction.

In their zeal, the House managers would disempower the Judiciary and demand that the House’s interpretation that the sole power of impeachment be accepted by the Senate and the other branches without question. They claim no constitutional privilege exists to protect the executive branch against the legislature seeking impeachment. They go further and claim that a single justice — a single justice — exercising the Senate’s sole power to try impeachments can actually strip the Executive of its constitutional protections with a simple decree.

POLS NOTE: That’s how the “Framers” wrote it up, yes. 

In Federalist 78, Hamilton wrote, “liberty can have nothing to fear from the judiciary alone. But would have everything to fear from its union with either of the other departments.” 

POLS NOTE: Yes, the “union” of two supposedly separate branches of government working against a third is an affront to liberty. Like when Mitch McConnell told Fox News that the Senate was working in “total coordination” with the president’s defense team. 

If the House managers prevail, the House would have destroyed our constitutional balance, declaring itself the arbiter of constitutional rights, and conscripting the Chief Justice to do it. To be clear, the executive branch is not immune from legislative oversight or impeachment and trial. 

POLS NOTE: “To be clear, I am now contradicting myself.”

But that cannot come at the expense of constitutional rights, certainly not without input from the judiciary. Afterall, since Marbury vs Madison, it is emphatically the duty of the judicial department to say what the law is. Without this separation nothing stops the House from seeking privileged information under the guise of an impeachment inquiry. But the House managers say that no matter how flimsy the House’s case, if the executive tries to protect that information constitutionally, that itself is an impeachable offense. 

POLS NOTE: That’s why we call it “obstruction.” Also at some point it would be nice to hear from Gardner about whether he thinks Trump should have allowed even a minimal amount of cooperation from the White House like Nixon did when senior staff testified during Watergate. Trump’s obstruction was wholesale and inarguable.

That dangerous precedent would weaken the stability of government, constantly threatening the president with removal and setting the stage for a constitutional crisis without recourse to the courts. With this precedent set, the separation of powers would simply cease to exist. 

POLS NOTE: If the president would just stop committing crimes and abusing his power, that would be a good way to avoid more efforts to remove him.

Over the 244-year history of our country, no president has been removed from office. The first presidential impeachment occurred in 1868. The next was more than 100 years later. Now 50% of presidents have been impeached in the last 25 years alone. 

POLS NOTE: Also, 100% of current presidents have been impeached. 

A tool so rarely used in the past is now being used more frequently. It’s a dangerous development. And the Senate stands as the safeguard as passions grow even more heated. These defective articles and the defective process leading to them allow the House to muddy things and claim we’re setting a destructive precedent for the future. 

POLS NOTE: Gardner’s former boss, Sen. Wayne Allard, participated in the last impeachment and voted to remove a sitting president from office who had won “roughly half” of the popular vote. If Gardner was ever opposed to that previous impeachment, Bill Clinton might want to send him a belated thank you note, and Sen. Lindsey Graham might want a word with him. 

Of course, bad cases make bad law. The House’s decision to short-circuit the investigation, moving faster than any presidential impeachment ever — and a wholly partisan one at that — certainly makes for a bad case.  

POLS NOTE: Okay, so Gardner is accusing the House of moving too fast on impeachment. When he had the chance last week to vote to call new witnesses, Gardner voted NO. As The Wall Street Journal reported:

Sens. Cory Gardner of Colorado, Martha McSally of Arizona and Thom Tillis of North Carolina, who face competitive races in the fall, warned colleagues in the meeting against backing more witnesses, people familiar with the matter said. The senators said a drawn-out trial could lead to more Democratic attacks and hurt their re-election chances, the people said.

So again, let me be clear about what this precedent does not do: At the outset this case does not set the precedent that a president can do anything as long as he believes it to be in his electoral interest. 

POLS NOTE: But…that’s what President Trump’s attorneys LITERALLY argued.

I also reject the claim that impeachment requires criminal conduct. 

POLS NOTE: This is also something that President Trump’s attorneys argued. And, hey, remember that time when Rep. Ken Buck accidentally forced special investigator Robert Mueller to admit that President Trump could be prosecuted for crimes once he left office? Good times. 

Rather this shows first that House committees cannot simply assume the impeachment power to compel evidence without express authority from the full body and corresponding political accountability. 

POLS NOTE: This is the kind of sentence you write when you’re trying to reach a word count for a term paper.

Second, the House should work in good faith with the executive through the accommodation process. If that process reaches an impasse, the House should seek the assistance of the judicial branch before turning to impeachment.

POLS NOTE: Essentially, Gardner is admitting that the House should have pursued all legal avenues to require administration officials to adhere to subpoenas…which pretty much validates the whole “obstruction of justice” argument.

Oh, and here’s some interesting video from 2011 of Gardner blasting the Obama administration for slow-walking documents related to the investigation of Solyndra.

Finally, when articles of impeachment come to the Senate along partisan lines, when nearly half of the people remain unmoved…

POLS NOTE: An astounding 75% of Americans wanted the Senate to call additional witnesses.

…and maintain adamant support for the president, and when the country is just months away from an election, in these circumstances, the American people would likely not accept removing the president and the Senate can wisely decline to usurp the people’s power to elect their own president. 

POLS NOTE: Remember that Gardner also supported Senate Majority Leader Mitch McConnell in 2016 when they refused to even hold hearings for a vacant Supreme Court seat using the exact same rationale.

It has been said in this trial that the American people cannot make that decision for themselves. I couldn’t disagree more. I believe in the American people. I believe in our people to evaluate our president, to make their decision in November and move forward in our enduring effort to form a more perfect union. 

POLS NOTE: The American people are not supposed to vote on articles of impeachment. That’s not what the “Framers” intended. 

I do not believe that a Senate nullification of two elections over defective impeachment articles is in the nation’s best interest. 

POLS NOTE: Perhaps someone could ask Gardner if there were ever a circumstance under which the Senate should remove a President from office. Gardner’s former boss, Sen. Wayne Allard, believed that perjury in a civil case was sufficient. You can’t kill an impeachment clause that might already have been dead. 

So let’s move forward with the people’s business and bring this nation back together. Let’s rise up together, not fight each other. Not all of us voted for President Trump…

POLS NOTE: Funny you mention this, Sen. Gardner, since you yourself did not vote for Donald Trump in 2016. Gardner wrote in “Mike Pence” for President. 

…not all of us voted for the last president, or the one before him. Yet we should work to make our nation successful regardless of partisan passions.

POLS NOTE: But…you just said that we couldn’t impeach President Trump because some Americans voted for him. 

Passion positively placed will provide our nation with the prosperity it has always been blessed with. 

POLS NOTE: Peter Piper picked a peck of pickled peppers. 

Partisan poison will prove devastating to our nation’s long-term prosperity.  We must not allow our fractures to destroy our national fabric, or partisanship to destroy our friendships. If we come together, we’ll succeed together, for surely we are bound together in this the great United States of America.