On the recordJanuary 30, 2020
Mr. Chief Justice, I send a question to the desk. The CHIEF JUSTICE. Thank you. The question from Senator Shelby is for the counsel for the President: Though not charged in the Articles of Impeachment, House Managers and others have stated the President's actions constituted criminal bribery. Can this claim be reconciled with the Supreme Court's unanimous decision in McDonnell v. United States? Mr. Counsel PHILBIN. Mr. Chief Justice, Senator, thank you for that question. I think the answer is, no, it can't be reconciled with the McDonnell case. Let me make a couple of points in my answer. The first is, of course, because there is no bribery or extortion charge in the Articles of Impeachment, the managers can't rely on that now to try to establish their case. I pointed out yesterday, I believe, that that is a due process violation of the most fundamental sort to have a charging document and leave out certain charges in the charging document, then come to trial and say: Well, it is not in the indictment, and it is not in the charge, but, actually, what we have shown you is he did something else wrong. It was ``this crime.'' As the House managers well know, that would result in an automatic mistrial in any actual trial in a court in this country. So that is the initial problem with trying to go there on bribery or something else.…
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