Sen. John Kennedy: Senators Are Both Judge And Jury In Impeachment Trial; "There Are No Rules" | Video | RealClearPolitics

Sen. John Kennedy: Senators Are Both Judge And Jury In Impeachment Trial; "There Are No Rules"

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Sen. John Kennedy responds to GOP Sen. Murkowski's comments that she is "disturbed" by McConnell's coordination with the White House on the rules of the Senate impeachment trial: "I think Senator McConnell is entitled to his opinion and his approach. So is Senator Murkowski."

"There are no rules here," Kennedy told Jake Tapper on CNN’s "State of the Union" regarding the Senate impeachment trial.

"It's not a criminal trial," Kennedy said. "The Senate is not really a jury. It's both jury and judge. The chief justice is not the judge. He's the presiding officer. There are no standards of proof. There are no rules of evidence."

"I thought that the House proceedings were unnecessarily unfair. When the American people walk away from the Senate trial, if we ever have one, I don't want them saying, 'Well, we were just run over by the same truck twice,'" he said.

"I fully expect the president to do two things," he said. "Claim executive privilege, which is his right. And number two, demand his own list of witnesses."

JAKE TAPPER, CNN: Let's turn to politics, if we can, now.

Obviously, the Senate trial is pending, although we don't know when.

You have said -- quote -- "My objective, first and foremost, is to be fair to both sides."

You heard Senator Lisa Murkowski there. Were you also bothered at all when Majority Leader McConnell said there would be no daylight between him and the White House?

SEN. JOHN KENNEDY: I think Senator McConnell is entitled to his opinion and his and his approach. So is Senator Murkowski. So is Senator Schumer. So is Senator Blumenthal.

If you look, Jake, at the Constitution, the standing rules of the Senate, the essays and analyses by the Congressional Research Service, if you look at the case law, Nixon v. U.S. -- not Richard Nixon, a federal judge named Nixon -- if you look at the case of Porteous v. Baron, what you will see is that, when it comes to impeachment, the rule is that there are virtually no substantive rules.

It's not a criminal trial. The Senate is not really a jury. It's both jury and judge. The chief justice is not the judge. He's the presiding officer. There are no standards of proof. There are no rules of evidence. And every senator, unless we pass a new rule by 51 votes in the Senate, is entitled to approach it his own way.

I think many positions by many senators are calcified. I can only speak for me. I'm going to keep an open mind. I want to be fair to both sides.

When -- I thought that the House proceedings were unnecessarily unfair. And when the American people walk away from the Senate trial, if we ever have one, I don't want them saying, well, we were just run over by the same truck twice.

TAPPER: Mm-hmm.

JOHN KENNEDY: It was unfair in the House and it was unfair in the Senate.

I want people to think that it was a -- it was a level playing field.

TAPPER: So, you said earlier this month that, in the name of fairness, you would vote, theoretically, to allow Democrats, Republicans, anyone involved in this trial to -- quote -- "call any witness that they want" in a Senate trial.

Do you think that's the only fair way to do it, to allow Democrats, Republicans, those representing Trump, those House impeachment managers to call the witnesses they feel they need to bring?

JOHN KENNEDY: Well, the first issue that the Senate has got to decide is whether we hear evidence or hear the case, if you will, based on the record.

One point of view is that the House is sort of like a district court. And the Senate -- once again, not a perfect analogy, but the Senate is more like an appellate court. And we hear the record as put together by the House.

That is what happened, in part, in the Clinton proceedings. Originally, the Senate heard -- heard the prosecution and defense argue the case on the record from the House. Then they decided whether to dismiss. A motion to dismiss was defeated. And that's when the Senate decided to hear three additional witnesses.

I think that's a pretty sound approach for us to follow. We had a unanimity in the Senate with respect to Clinton, but -- with respect to Clinton procedure.

But, look, there are no rules here. It's -- for example, what's an impeachable offense? I think the precedent that shows that not all impeachable offenses are crimes, but it also shows that not all crimes are impeachable offenses.

TAPPER: Right. I hear what you're saying.

Do you think that, if there are no witnesses -- I mean, you expressed a concern earlier in this interview that, if the Senate trial is perceived as unfair as the House impeachment inquiry was, in your view, then the American people will feel like they have been hit by the same truck twice or something like that.

You said it better and more -- and more colorfully.

JOHN KENNEDY: Right.

TAPPER: Do you think that, if the Senate trial goes forward, and no witnesses are called, as Mitch McConnell wants to do it, the Senate majority leader, that will be the truck running over the American people a second time, that people will not feel like it was fair?

JOHN KENNEDY: I don't know yet. I will have to make that decision at the -- at that juncture.

I would start by giving each side a good amount of time to present their case. I would -- I would give the prosecution, say, 24 hours. I would give the defense, the president, 24 hours.

Then I would allow plenty of time, maybe 10 to 15 hours of time, for senators to ask questions.

Now, we can't ask questions. We submit them in writing. Either side, prosecution or defense, can object.

And, at that juncture, I think we should step back and say, OK, have we heard enough? Do we want to go further?

I suspect, at that juncture, somebody will make a motion to dismiss. That's what happened in President Clinton's impeachment. The motion to dismiss was defeated, and the Senate decided to hear three more witnesses.

It's also possible -- I'm not recommending it, but it's possible for the Senate, through the presiding officer, the chief justice, to appoint a committee to hear additional evidence, if the Senate thinks it's necessary.

All I know today, Jake, is, I don't know if we will ever get the case. I don't know if we will ever get the case.

TAPPER: Yes.

JOHN KENNEDY: And I don't know why the speaker's doing this.

Maybe she's telling the truth that she wants to dictate the policy -- or the procedure, rather, to the Senate. If that's -- if she's sincere in that, I think it's unconstitutional.

Maybe it's a cynical political ploy. Maybe her actions demonstrate indecision.

I don't know.

TAPPER: Yes. So...

JOHN KENNEDY: But I think, in the meantime -- go ahead.

TAPPER: Well, I -- finish your thought.

JOHN KENNEDY: No, you go ahead.

TAPPER: Well, I just want to ask you, because one of the witnesses... JOHN KENNEDY: I was just going to say...

TAPPER: Please.

JOHN KENNEDY: OK.

I was just saying, in the meantime, I would get back to work.

TAPPER: OK.

JOHN KENNEDY: I think the Senate ought to take up the USMCA.

Go ahead.

TAPPER: One the witnesses the Democrats want to hear from is from Trump aide Mike Duffey of the Office of Management and Budget.

JOHN KENNEDY: Right.

TAPPER: There are these FOIAed mails, e-mails that show -- that just came out -- that show that roughly 90 minutes after President Trump asked Ukrainian President Zelensky to give us a favor for the investigation into the Bidens and the other investigation, July 25, 90 minutes later, Duffey ordered a freeze on the U.S. security assistance for Ukraine.

Duffey, in that e-mail, acknowledged the -- quote -- "sensitive nature" of the request and asked the other officials to keep the information closely held.

Doesn't that make you, as a juror, want to hear from Mike Duffey?

JOHN KENNEDY: Well, two points.

Number one, executive privilege. Now, the president, as has just about every president going back to George Washington, asserted executive privilege in the House.

Speaker Pelosi decided not to take the normal route and get a decision by a third branch of government. That was her call.

In the Senate, if we tomorrow agreed with Senator Schumer, who I think is speaking for Speaker Pelosi, to call all of the witnesses that he wants, I fully expect the president to do two things, claim executive privilege, which is his right, and, number two, demand his own list of witnesses.

TAPPER: Right.

JOHN KENNEDY: Now, if the president does that, we could end up with a scenario where Chuck caught the car. The president's witnesses don't testify, if the Senate doesn't want to pursue it in court, but -- or the -- or Senator Schumer's witnesses don't testify, but the president's witnesses do.

I don't think Senator Schumer would think that's fair.

TAPPER: Lastly, sir, I just want to ask you.

President Trump, just a few days ago, retweeted an unsubstantiated claim about the identity of the intelligence community whistle-blower. One of your colleagues in the senior members of your caucus, Senator Chuck Grassley, has been a champion of whistle-blowers for decades.

He has said in the past that it is -- quote -- "strictly up to the whistle-blower," this one, to reveal his or her identity, that the whistle-blower should be -- quote -- "heard out and protected."

You, on the other hand, have said that the whistle-blower should be publicly named. Why is Senator Grassley wrong? And do you think it's appropriate for the president to be identifying this whistle-blower -- I don't know if it's true or not, but identifying this individual?

JOHN KENNEDY: I don't know who the whistle-blower is.

Number two, I think we ought to follow the law. Number three, there have been some allegations in the press about the identity of the whistle-blower. If -- if those -- those statements are true, one of the thoughts I had was that, well, the whistle-blower could easily -- easily be called by the defense, not as the whistle-blower, but as a fact witness.

It wouldn't surprise me if the president's counsel, being the good lawyers that they are, if we move to additional evidence, wanted to call the whistle-blower, or the alleged whistle-blower, not as the whistle-blower, but as a fact witness.

Number four, with respect to what the president tweeted, look, I have enough trouble paddling my own canoe. But I do agree with Mrs. Trump that -- and I have suggested before to the White House that, if the president would tweet a little bit less, it wouldn't cause brain damage.



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