Return to Transcripts main page

ANDERSON COOPER 360 DEGREES

House Democrats Release New Evidence As President Trump Reveals His Impeachment Defense Team; New Documents From Lev Parnas Show More Texts About Possible Surveillance Of Former U.S. Ambassador To Ukraine; Sen. Tammy Baldwin (D-WI) Is Interviewed About The Impeachment Trial; New Book: President Trump Called Top Pentagon Brass A "Bunch Of Dopes And Babies" In 2017 Meeting. Aired on 8-9p ET

Aired January 17, 2020 - 20:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


[20:00:16]

ANDERSON COOPER, CNN HOST: Good evening.

President Trump said the former ambassador to Ukraine would, quote, go through some things. She told Congress she felt threatened.

Now, there's breaking news. New documents, including text messages just out from the House Judiciary Committee. They add to others this week and they further suggest that Marie Yovanovitch may have been under surveillance before her ultimate -- before her ultimate departure from Kiev.

A line from one message reading, quote: It's confirmed. We have a person inside. It's just a portion of an exchange between unknown sender with a Belgium number and a Trump donor and congressional candidate named Robert Hyde.

In addition to being just plain ominous, the messages cast doubt on Hyde's claim about another similar exchanges with Lev Parnas: I thought we were playing. Parnas says that he thought the whole thing was a joke.

CNN's Pamela Brown has been looking at the new evidence and joining us now with details.

So, what are you learning from these newly released Lev Parnas documents?

PAMELA BROWN, CNN SENIOR WHITE HOUSE CORRESPONDENT: Well, Anderson, these newly released text messages shed fresh light on apparent attempts to surveil the former ambassador to Ukraine, Marie Yovanovitch. They were sent between Parnas associate, Robert Hyde, and an unidentified number from Belgium about her movements in Ukraine. And in one message, the Belgian number sent Hyde a screen shot of an official photo of Yovanovitch writing, quote, my contacts are checking. Adding, I will give you the address next week, to which Hyde replies "awesome."

And then there's also this text from that same number with the address for the Ukrainian embassy. The next text sent two minutes later, Anderson, says she has been there since Thursday, never left the embassy.

So, these messages indicate her movements were being tracked over the course of at least several days, adding more evidence to these texts between Hyde and Parnas about tracking Yovanovitch that Hyde claimed he was just joking around.

Now, for context, Rudy Giuliani and his associates have been pushing the president to fire Yovanovitch because they believed she was getting in the way of their efforts to dig up dirt on the Bidens. She was ultimately pulled from her post last spring when she says she was told she needed to return to the U.S. immediately because of great concerns.

Now, we should note, after 48 hours of silence, Anderson, and mounting pressure to respond, Secretary of State Mike Pompeo said today that the State will investigate this matter of the Ukrainian ambassador potentially being surveilled.

COOPER: And we're showing images of President Trump with Lev Parnas standing next to him, talking to him.

The documents also show Parnas' alleged communications with a congressional staffer.

BROWN: Right. So, these new documents also show efforts by an aide to Congressman Nunes, Devin Nunes, to dig up dirt on Trump rivals. And in these newly released text messages, the Nunes aide tells Parnas he needs to gather materials and conduct interviews in Ukraine in these efforts to dig up dirt on the Bidens, specifically Biden's role in firing a Ukrainian prosecutor.

There were several exchanges on this matter between the two men, and what makes this so significant is that they draw Nunes even further into efforts undertaken by Giuliani and his associates in Ukraine.

Last month, as you'll recall, Anderson, House Democrats released phone records showing calls between Nunes and Parnas and Nunes admitted earlier this week to speaking on a phone with a key figure in the Ukraine scandal, after previously saying such a conversation would have been very unlikely.

COOPER: Pamela Brown, thanks very much. Appreciate it, at the White House.

Whether or not senators consider this or any new evidence to the impeachment trial at all remains to be seen. Today, the number of people who'd be defending the president grew by three: Clinton impeachment special counsel, Kenneth Starr, his successor, Robert Ray, and Alan Dershowitz, who joins shortly.

Interestingly, the president has not always had a high opinion of Starr. Listen to what he said about him during the Clinton impeachment.

(BEGIN VIDEO CLIP) DONALD TRUMP, BUSINESSMAN: I think Ken Starr is a lunatic. I really think Ken Starr is a disaster. I hated the way the president handled it. It was a long and terrible process. I really think that Starr was horrible.

(END VIDEO CLIP)

COOPER: Well, that's not all. Speaking to Geraldo Rivera at the time, he called Starr, quote, a total whacko. But that was then. He is certainly known to say things he doesn't mean or to change his mind.

In fact, just a couple weeks ago, he was claiming to want witnesses at the Senate trial.

(BEGIN VIDEO CLIP)

TRUMP: When it's fair, and it will be fair in the Senate, I would love to have Mike Pompeo, I'd love to have Mick, I'd love to have Rick Perry, and many other people testify.

(END VIDEO CLIP)

COOPER: As of now, no witnesses will be called.

Alan Dershowitz joins us. He's professor emeritus at Harvard University, a former member of the O.J. Simpson legal defense team and a bestselling author. His latest book is titled "The Case Against Removing Trump".

Also joining us, another bestselling author and our chief legal analyst, Jeffrey Toobin, and a former student of Professor Dershowitz's.

Professor, so, what exactly is your role here?

[20:05:01]

You're going to be delivering arguments on behalf of the president on the Senate floor talking about the Constitution. You say you're not a formal part of the legal team. How so?

ALAN DERSHOWITZ, PROFESSOR EMERITUS, HARVARD LAW SCHOOL: Well, I've been asked to prepare and deliver the case -- the constitutional case against impeachment that benefits the president. It's the same argument I would have made if Hillary Clinton had been elected and she were being impeached. It's similar to the arguments I made when I testified as a witness against impeachment of Bill Clinton and when I consulted with the Bill Clinton legal team.

I'm there only to argue about the constitutional criteria for impeachment, which I've written about extensively, and why these articles don't rise to the level of an impeachable offense. I will go into the history of the formulation in the Constitution and the history of how these words came to be, and leave it to others to argue the facts, to make strategic decisions about witnesses. That's not within my jurisdiction. JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Alan, why are you playing

these semantic games? Whose side are you on? I mean, you're part of the defense team. Why? Are you embarrassed?

DERSHOWITZ: You sound like my mother when I said I was challenging --

TOOBIN: I look like your mother, too.

DERSHOWITZ: Well, you wish.

(LAUGHTER)

DERSHOWITZ: Well, I said, I said that I was defending the right of Nazis to march through Skokie. And she said to me, son, are you for the Jews or are you for the Nazis? I said, I'm for the Constitution.

And she said, I'm your mother, don't tell me that, you have to pick sides. The Jews or the Constitution. Look -- or the Nazis?

(CROSSTALK)

TOOBIN: That's very interesting, but what side are you on in the impeachment case?

DERSHOWITZ: I'm on the side -- I'm on against -- I'm against impeachment. I'm clear about that.

I think it would be unconstitutional. It would set a terrible precedent for this president to be impeached for these alleged articles of impeachment.

So, I feel very strongly. I will make a strong argument against impeachment.

But I'm not part of the regular team that will be making strategic decisions and participating in questions about whether there should be witnesses or not. That's going to be left to others. I have a specific role.

COOPER: Are you getting -- how does it -- just specifically how -- do you get paid for this? How does that work?

DERSHOWITZ: Well, if -- that hasn't been discussed. But if I were to be paid, all the money would go to charity. I will not take a single penny, a payment --

COOPER: OK.

DERSHOWITZ: -- that I would keep based on what I'm doing.

I'm doing this because I strongly believe in the Constitution, I strongly oppose the impeachment. I worry about the weaponization of impeachment and it could be used in other cases.

I join James Madison who was very concerned that using open-ended phrases could create a way in which Congress should have too much power over the president.

I join Alexander Hamilton who said the greatest danger is when impeachment turns on the number of votes each party can get.

So I'm there to try to defend the integrity of the Constitution. That benefits President Trump in this case.

COOPER: Yes. Well, listen, I think anybody -- everybody should have the best defense possible on -- in any courtroom.

Jeff Toobin, what do you make of Professor Dershowitz's argument about the Constitution not --

TOOBIN: I think it's wrong. I mean, Alan's position, and I don't want to mischaracterize it, is that a president -- that impeachment should only apply to criminal offenses.

DERSHOWITZ: No, no, that's not my position.

TOOBIN: All right. Why don't you say what it is, because I don't want to mischaracterize it.

DERSHOWITZ: OK, my position is clear, that the Framers said treason, bribery and other high crimes and misdemeanors. Other refers to matters that are close in kind. And Professor Tribe, by the way, agrees with me on this part of the analysis.

So, the official (ph) offenses, they don't have to be specific criminal offenses but they have to be criminal-like, they have to be like treason, they have to be like bribery.

COOPER: So abuse of power is not -- is not a high crime?

DERSHOWITZ: No. No, abuse of power was one of those things mentioned by the Framers as a reason why we need impeachment but then rejected. It was widely discussed. It could easily have been accepted as one of the constitutional criteria.

TOOBIN: That's not true, Alan.

DERSHOWITZ: Let me give you another example. Let me give you another example.

TOOBIN: All right. Let me just -- let me just talk for a second. I mean --

DERSHOWITZ: Yes.

TOOBIN: Federalist 65, Alexander Hamilton, which you --

DERSHOWITZ: Sure.

TOOBIN: -- you write about --

DERSHOWITZ: I do.

TOOBIN: -- he specifically says abuse of or violation of some public trust is why -- is an impeachable offense. And it also makes sense.

DERSHOWITZ: No, no, he doesn't say that. He doesn't say that. He says that's why we have impeachment and that's why crimes --

TOOBIN: OK.

DERSHOWITZ: -- like treason and bribery are abuses of power. And if they are abuses of power, but the criteria have to be met.

Let me give you an example. Madison in calling for impeachment says we need to make sure a president doesn't become incompetent. That's a good reason. But then when the criteria were debated, incompetence was not included because it was too broad. We needed to amend the Constitution to include that.

If you want to include the abuse of power, amend the Constitution. It won't get ten votes in Congress because half the presidents of the United States have been accused by their political opponents of abuse of power. It's much too open ended and too broad and it would turn us into a parliamentary democracy in which Congress has too much power over the president.

COOPER: What about violating the public trust?

DERSHOWITZ: That's not an impeachable offense. It could have been. They discussed it. But they didn't put it in the Constitution.

[20:10:02]

They put in crimes that violate the public trust, that is treason and bribery violate the public trust. And if there were other crimes like it, they would violate the public trust.

(CROSSTALK)

TOOBIN: But as you know, Alan -- as you know, Alan, there was -- there was no federal criminal code in the late 18th century.

DERSHOWITZ: That's why I say you don't need specific crimes. You need criminal-like behavior. Everybody knew what bribery was. Treason is defined in the Constitution.

And if somebody -- and here I disagree with Trump -- if somebody were to murder somebody, by the way, we did have a vice president who did murder Alexander Hamilton while he was vice president and he wasn't impeached because in those days, a duel, even though it was illegal was not regarded as murder.

Look, I just think --

(CROSSTALK)

COOPER: So, Jeff -- let me let Jeff talk a little bit.

Jeff, Jeff -- what do you think the scope of high crimes and misdemeanors is? And how much is open to interpretation? TOOBIN: Well, it is of course open to interpretation, like any

provision of law. You know, they don't cover every circumstance. But the point of impeachment is misconduct and bad conduct that only a president can do.

Alan, you and I can't withhold aid from the Ukraine to advance our political interests. Only the president --

DERSHOWITZ: And neither were we -- neither were we elected.

TOOBIN: Let me finish, let me finish, Alan.

DERSHOWITZ: Sure.

TOOBIN: Only the president --

DERSHOWITZ: I agree, I agree.

TOOBIN: -- has the power to abuse his power in that way.

DERSHOWITZ: I agree.

TOOBIN: And the idea that the only remedy for that is to have an election down the line, this is so far outside what we expect of the presidency. And it is in violation --

DERSHOWITZ: I agree. Look, I agree with all that, but the Framers didn't make it an impeachable offense and they could easily have done it.

Jeffrey, let me ask you one direct question. You admit these are arguable points. Don't you think it important for the president to have constitutional lawyer like me making those points in a nonpartisan way, in a way I would have been making them for Hillary Clinton and introduce a nonpartisan constitutional element into the discussion?

COOPER: Let me -- I --

DERSHOWITZ: They can accept it or they can reject it. They can listen to your argument. They can listen to mine.

COOPER: I got to go to break. It's a cliffhanger. Jeff will answer that question when we -- when we come back.

Also ahead tonight, one of the jurors who will be listening to Professor Dershowitz, Senator Tammy Baldwin joins us.

Later, more of my conversation with Lev Parnas.

Plus, more on the new documents from House Democrats raising new questions tonight for the White House.

(COMMERCIAL BREAK)

[20:16:26] COOPER: We're talking tonight about the impeachment case against the president, as well as the case against that case, the constitutional arguments for and against, the politics, as well as new documents coming to light. To that specific point, we'll hear more from Lev Parnas shortly.

Back now with Jeff Toobin and Alan Dershowitz, who right before the break asked Jeff whether the president, in fact, deserved to have a topnotch attorney, such as Alan Dershowitz, exploring constitutional questions and issues during the trial.

What about that, Jeff?

TOOBIN: He should -- he absolutely is entitled to the best constitutional defense he can get.

What he's not entitled to is Alan pretending like he's some sort of neutral observer instead of what he is, which is Donald Trump's lawyer. For some reason, you don't want to admit that, and that's -- that's up to you.

But you are sort -- you are pretending that there is some sort of perfect constitutional sweet spot. It doesn't have to be a crime but it can't be simply being a bad president, that there is some magical area in there that is an impeachable offense.

And I think straight forwardly that abuse of power, it's -- the Framers recognized it, that's what's the issue in this case, and the senators are perfectly capable of determining whether what the president did is a violation of his oath.

DERSHOWITZ: Well, that's like saying a judge is perfectly capable of determining something without an advocate on any side.

Look, let me be clear. I'm an advocate. I'm an advocate against impeachment, but I'm politically neutral. That is I would make the same argument if it was a Democrat or Republican. I don't let my political preferences interfere with my constitutional analysis.

Look, Jeffrey, it would be good if you presented your argument on behalf of the Democrats. You're partisan on that side. They would hear arguments from you. They would hear arguments from me.

But I think the Senate and the country are helped when they hear from somebody like me who is a liberal Democrat, who has always voted Democrat, who has strong views on impeachment. I had strong views even when Nixon was impeached. Although I favored his impeachment, I urged the ACLU not to take a position, but instead to defend his civil liberties when he was named an unindicted coconspirator. I took the same position when Bill Clinton was impeached and I'm taking the same position now.

I think it's very valuable for the Senate to hear that kind of point of view and then let it make its decision.

TOOBIN: But you keep invoking -- DERSHOWITZ: Look, I wish we had a nonpartisan --

TOOBIN: -- you keep invoking --

DERSHOWITZ: Yes.

TOOBIN: -- like I would do this for Hillary Clinton.

Hillary Clinton didn't behave this way. This is a case --

DERSHOWITZ: I would do it for Hillary Clinton if she did behave this way, if she did behave this way.

TOOBIN: Well, you know, we're into like magical hypotheticals here.

DERSHOWITZ: I'm just saying -- no, I'm just saying I'm not partisan. I don't take -- take my cases based on whether it's a Democrat or a Republican. I pass the shoe on the other foot test.

No matter what it is, if the same facts were for a Democrat or a Republican, I would make the same arguments. I don't think that's true of all of my colleagues, or of all of the folks on CNN --

TOOBIN: Well, I can't --

DERSHOWITZ: -- or on Fox or anybody else.

TOOBIN: -- speak for anyone but myself.

DERSHOWITZ: Well --

TOOBIN: All I'm talking about is the facts here and the rule in the Constitution.

And the rule in the Constitution which I have always understood in which I think is by far the majority view, notwithstanding your view, is that abuse of power, a president doing something is not a violation of the criminal law but a serious and, you know, threatening use of presidential power. That's exactly why we have high crimes and misdemeanors.

DERSHOWITZ: That's one issue here. Your view, and my view, the Framers agreed with my view, not yours.

They could easily have put abuse of power into the criteria for impeachment. It was discussed. It was never accepted.

Let the Senate hear our points of view.

TOOBIN: But I --

DERSHOWITZ: But don't criticize me for stating my position and don't say I've changed, Jeffrey.

[20:20:04]

TOOBIN: I don't know whether you've changed -- I don't know whether you've changed --

DERSHOWITZ: I've been completely consistent since 1973. I have changed not at all. The big rap on me is that I don't change, that I have a small mind. I'm the hob-goblin of small minds because I'm so consistent.

TOOBIN: I think you have a very big mind.

DERSHOWITZ: But I never changed my views on impeachment.

TOOBIN: But I'm just some guy on cable. You are going into the United States Senate and telling the senators how to vote. That to me is a very big deal.

DERSHOWITZ: It is.

TOOBIN: And what bothers me is that you are doing that pretending like you're some sort of outside, objective observer instead of Donald Trump's lawyer.

DERSHOWITZ: No, I'm an advocate against impeachment. I'm an advocate against impeachment.

TOOBIN: Why don't you want to say his name? You keep saying like --

DERSHOWITZ: Because --

TOOBIN: You know, that's who you are. You're his lawyer.

DERSHOWITZ: I am not part of the strategic legal team. I am a constitutional analyst. I want the impeachment to fail, I hope will fail.

COOPER: But it wasn't -- just for the record, it wasn't the Constitution who calls you up and asks you to do this, it was -- it was the White House and President Trump.

DERSHOWITZ: No, obviously. First of all, I've been writing about it --

COOPER: Right.

DERSHOWITZ: -- and making this point on your show and others since well before anybody on the other side called me.

I think it's the right thing to do. I would be doing it no matter what the circumstances were and I think it's good for the American people.

COOPER: I have no issue -- I think -- I think everybody -- I mean, as I said, I think everybody should have the best defense possible. Jeff's point is you're working for the president, whether --

DERSHOWITZ: I'm working for the Constitution, the beneficiary this time happens to be the president. Last time, it was President Clinton. The time before, it was President Nixon.

COOPER: I hear what you're saying. DERSHOWITZ: I'm not working for anybody. What I'm doing is making a

constitutional argument on behalf of President Trump's team against impeachment.

COOPER: Professor --

DERSHOWITZ: Let's be very clear about that. I'm against impeachment. I think it would be a very bad thing to happen. I'm very happy that the Senate will hear my view.

Let me tell what my goal is --

COOPER: Do you think there should be witnesses, Professor?

DERSHOWITZ: -- I want to persuade some Democrats. I want to persuade -- if I can't persuade Democrats to agree with me, I will have failed. And I suspect I will fail. I don't think I'll persuade Democrats.

But I want Democrats with open minds to be persuaded and it would be very nice if Republicans with open minds would hear both sides. I would love to see a real trial that really involved people that hadn't made --

(CROSSTALK)

TOOBIN: With witnesses?

COOPER: So, that's my question. Do you believe there should be no witnesses if you want a real trial?

DERSHOWITZ: If there were witnesses for one side, there have to be witnesses for the other side.

COOPER: True.

DERSHOWITZ: You can't have witnesses only for the prosecution.

COOPER: So, do you think there should; be witnesses?

DERSHOWITZ: You would have witnesses for the defense.

It's up to the Senate. I would have no objection if after the opening arguments and closing arguments the Senate voted to have witnesses.

COOPER: No, no, but do you think there should be? Because I mean, your argument is you're arguing for the Constitution just as an outside observer because you're not on the legal team.

DERSHOWITZ: The Constitution doesn't speak to that. If they do call Bolton, then we have constitutional issues, because Bolton will want to testify, the president will invoke executive privilege, it will probably have to go to court and it will result in just the kind of delays --

COOPER: What about a Lev Parnas? DERSHOWITZ: -- in a trial that the Democrats did not -- oh, if -- let me tell you, if I were a lawyer, a real lawyer, I couldn't hope for somebody better than Lev Parnas to be testifying against my client. You couldn't imagine anybody who would be more open to effective cross-examination than a Lev Parnas. So --

COOPER: Why is that?

DERSHOWITZ: I don't -- I predict here Lev Parnas will not be called as a witness because he has so much baggage and so much liability. I don't think he'll be ever called as a witness.

TOOBIN: If he's such a terrible --

DERSHOWITZ: I think Bolton might be called, but he might not ever end up testifying, because it's not decision whether to testify. It's the decision of the court.

(CROSSTALK)

COOPER: Professor, what does it say -- right, what does it say that Rudy Giuliani and, according to Lev Parnas, President Trump were relying on Lev Parnas to be the face of this extortion scheme or this foreign policy scheme or this just whatever --

DERSHOWITZ: It says there should be an investigation and if there is any criminal conduct, it should be charged. It also may lead people to decide to vote one way rather than another, but that doesn't rise to the level of an impeachable offense. And it's not even charged as part of the impeachable offenses.

So, you know, we can disagree and agree. There's a lot we'll agree about. We'll agree about what went on with Lev Parnas and all of those people is very, very disagreeable, but you have to ask a distinction between political sins, crimes and impeachable offenses. And those are the distinctions I want to keep in the forefront.

I'm going to make my argument. I'm not telling the Senate what to do. I am presenting an argument. I hope they accept my argument.

COOPER: I guess --

DERSHOWITZ: My goal would get some Democrats to accept my argument. I would love to see more bipartisanism in the impeachment process as both Hamilton and Madison wanted.

COOPER: Because I'm not a law student at all, so correct me where I'm wrong here. But it says high crimes and misdemeanor in the Constitution, yes?

DERSHOWITZ: Yes.

COOPER: Does it spell out what a high crime and misdemeanor is?

DERSHOWITZ: No, it spells out what treason is.

COOPER: So, why are you alleging that you know what a high crime and misdemeanor is?

[20:25:00]

DERSHOWITZ: Because I've gone back and I've read all the debates and I've read all the history and I've read the words of the Constitution.

COOPER: So, you're interpreting the history --

DERSHOWITZ: It doesn't say -- yes --

COOPER: It doesn't say --

DERSHOWITZ: And I'm presenting -- I'm presenting an interpretation. You left out one word. It says other high crimes and misdemeanors. The other referring back to bribery and treason and high crimes and misdemeanors has a meaning.

We all agree about what high crimes mean. Clinton was wrongly impeached because he committed a low crime, not a high crime.

(CROSSTALK)

TOOBIN: Come on, Alan, you can't --

DERSHOWITZ: Alexander --

COOPER: What's a high crime?

DERSHOWITZ: A high crime is a crime like treason and bribery committed by a person --

COOPER: Like what? What does that mean?

DERSHOWITZ: -- in a high position.

COOPER: What does mean, like treason and bribery?

DERSHOWITZ: Extortion --

COOPER: Isn't this extortion?

(CROSSTALK)

DERSHOWITZ: Well, if it is, it should have been charged. There's nothing in the articles of impeachment that charge extortion.

(CROSSTALK)

COOPER: Isn't that an abuse of power? Wouldn't extortion be an abuse of power?

DERSHOWITZ: No, abuse of power is not extortion. You aren't a lawyer, I can tell.

COOPER: No, I'm not, I know.

DERSHOWITZ: Abuse of power is not extortion.

COOPER: Thank God to be honest.

DERSHOWITZ: Extortion requires specific elements, and if any of those crimes were to be charged, the House of Representatives had a duty to do it. And then the Senate would vote on extortion instead of voting on abuse of power. Now they have to go up and down on extortion --

COOPER: OK. Jeff -

(CROSSTALK)

DERSHOWITZ: That's not a constitutional offense.

TOOBIN: You're mixing and matching modern concepts and old concepts. You're saying he has to meet all the element of extortion. There was no such crime on the books -- let me finish first. Come on, Alan.

DERSHOWITZ: No, no, I didn't say that. But I didn't say that.

(CROSSTALK)

TOOBIN: Let me finish.

DERSHOWITZ: Sure, please.

TOOBIN: That it is not -- that this idea that you say it doesn't have to be a crime but then any time you mention anything other than a crime, you say that's not good enough. And --

DERSHOWITZ: Well, that's right, that's partly right. Yes.

TOOBIN: What I'm saying is that this is why we have a hundred jurors, a hundred juror-like people --

DERSHOWITZ: No, they're judges, not jurors, according to the chief justice. They're judges, not jurors.

TOOBIN: Whatever -- whatever you call -- whatever you call them, they are people in whom the Founders have -- have put their trust --

DERSHOWITZ: OK, let me ask you a question --

TOOBIN: -- that they will make the judgment.

DERSHOWITZ: Jeffrey, let me ask you a hard question. What if the House impeached and the Senate voted to remove on grounds that he had committed mal-administration? Now, mal-administration sounds like an abuse of office --

(CROSSTALK)

TOOBIN: That's a term they explicitly rejected. I know, I've read the debate. Yes, mal-administration.

DERSHOWITZ: That's right. They explicitly rejected. That's my point. And they implicitly rejected abuse of power because they discussed it

and didn't put it in the Constitution.

COOPER: How do you know they implicitly rejected it?

DERSHOWITZ: Because it was --

TOOBIN: Mal-administration is not the same as abuse of power.

DERSHOWITZ: It's very close.

TOOBIN: It's not -- well, says you.

DERSHOWITZ: It's very close. Not bad administration, mal- administration, abuse of power, when you abuse power, you're guilty of mal-administration, when you engaged in mal-administration.

The point is, the Framers didn't want open-ended criteria capable of being weaponized for partisan political purposes by people who had more votes than the other side.

Look, I'm going to present these arguments. I will be question about it. I'll be asked all these questions.

My only point is, don't criticize me as some have done for agreeing to play this role. I think it an important role. This is an historic event. I'm honored to have been asked to play it.

I will play it fairly. I will play it in a dignified way. I would present my argument.

COOPER: For the record, Jeff Toobin kind of criticizing. It wasn't me. Just for the record.

TOOBIN: No, I was -- Alan --

COOPER: I would want you on my defense.

TOOBIN: I mean, one thing I certainly learned from you in criminal law class is that every lawyer should represent unpopular clients or popular clients, and you should never criticize a lawyer for taking on an unpopular cause.

DERSHOWITZ: Thank you. Thank you.

TOOBIN: However, they shouldn't pretend that they're not representing the client.

COOPER: But let's just pause for one second. I got to get --

DERSHOWITZ: I am -- I am opposed. I am opposed to the removal and that's my position.

COOPER: I got to get the break in. We're going to continue -- if we can, we'll just continue this one more block.

We're just going to take a quick break. We'll be right back.

(COMMERCIAL BREAK)

[20:33:38]

COOPER: We are talking to Jeff Toobin and Alan Dershowitz. Professor Dershowitz is the latest edition to group of now seven advocates who will be arguing on the President's behalf. What many have in common, they appear a lot on television. And also, in Professor Dershowitz's case, has a long and illustrious career defending people of all different points of view.

To that point, Professor Dershowitz, do you think -- I mean, when you look at the President's -- the three names named today, yourself, Ken Starr and Robert Ray, do you think the President picks people in part because of how they defend him on T.V.?

DERSHOWITZ: I don't know. I was surprised that he selected the two prosecutors, special prosecutors in the Clinton case.

COOPER: Right. Because they've been popping up obviously here on CNN, but also, you know, on Fox News.

DERSHOWITZ: Well, they both argued that abuse of power is a constitutionally permissible criteria for impeachment, so we will have some disagreement about that. I'll tell you where we won't have any disagreement and that's on the second article, and that is obstruction of Congress.

The idea that a president can be impeached for simply telling the executive authorities not to submit to legislative subpoenas that are issued that he believes in a partisan manner without getting the courts to order that, that's simply part of our system of checks and balances and it's so dangerous and it doesn't appear anywhere in the constitution. There was no discussion of it in the constitution. It's just a made-up charge, obstruction of Congress.

[20:35:10]

The President could -- they could easily have gone to court and gotten a ruling on whether Bolton, who is the national security adviser, can be compelled to disclose conversations between himself and the President and they didn't do it.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: But Alan, you're distorting what's in the second article. The second article is not about a single example of the President not producing a witness --

DERSHOWITZ: No. He took a blanket view. He took a blanket view.

TOOBIN: Let me finish that. Let me finish that. Let me finish.

DERSHOWITZ: Yes, yes, yes.

TOOBIN: It is not about a single example or even two examples.

DERSHOWITZ: I agree.

TOOBIN: It is about the President of the United States saying to Congress, I will not cooperate with any subpoenas for any documents or any individuals, and that is --

DERSHOWITZ: Unless the court makes me.

TOOBIN: No. But, I mean, you know, just to say -- you know, I don't think a president has the right to say to another court, another branch of government, I won't do anything unless the courts force me to do it. The respect guaranteed among the three --

DERSHOWITZ: I disagree. I disagree.

TOOBIN: -- among the three branches of government.

DERSHOWITZ: And read Federalist Paper number 78 where Hamilton specifically says that the courts are there to serve as umpires between the executive and the legislative branch. When the legislative branch does something that the president regards this utterly political and improper, whether he is right or wrong about it, and he says, look, let the courts decide, that can't be an obstruction of Congress, that can't be an impeachable offense. All he's doing is saying I want a legal response to this and if the courts say I have to comply, I will comply. He's not the first person who has done that. He did it on --

TOOBIN: He's of course not the first president.

DERSHOWITZ: He did it in a blanket way.

TOOBIN: He did it in a blanket way and --

DERSHOWITZ: Perfectly permissible.

TOOBIN: -- so that this -- and remember what this whole controversy is about. This is about the -- attempting to control the outcome of the 2020 election. So, the position the President is taking is like --

DERSHOWITZ: Well, that's his political view.

TOOBIN: -- it will take months and months in court so I can continue doing what I'm doing until the election happens. I don't think the House --

DERSHOWITZ: Jeffrey, you know as well as I do that courts when they're told that this involves the impeachment of a president, we want a ruling this week on whether or not Bolton can invoke exec -- can be made to invoke executive privilege. They would have gotten a very quick ruling. Now, they took them a month to send the articles of impeachment over to --

COOPER: But that's not true.

TOOBIN: I mean, look, Alan, again, there are facts here. Judge Richard Leon, who was the judge in the Kupperman case -- DERSHOWITZ: Yes.

TOOBIN: -- which is the case for the deputy of national security adviser, he didn't even schedule a hearing for three weeks. I mean, he was lazy and incompetent.

DERSHOWITZ: Blame that on the courts.

TOOBIN: Well, that's right. But, I mean, the House of Representatives --

DERSHOWITZ: But President has a right to invoke the courts.

TOOBIN: -- shouldn't be held hostage to the courts when the President is issuing blanket denials of their rights as a coordinate branch of government.

DERSHOWITZ: If I as a criminal defense lawyer, if my client -- if somebody is asked to come and testify and I claim there's lawyer- client privilege, I will invoke a blanket say no, he's not going into. You get a court order.

Now, the House used to have a way of enforcing their own orders. They have a little cell in the basement. They haven't used that in years, now they go to the courts. It may take time. That's part of our system of checks and balances. Our government wasn't created --

TOOBIN: So is impeachment.

DERSHOWITZ: -- for its efficiency. I know. But the impeachment has to be base on an impeachable offense, not on something made up like obstruction of Congress. Where do you find the obstruction of Congress? It's not in the criminal statutes. It's not in the constitution. It's just made up out of whole cloth and it would be extremely dangerous if that went forward. I am very happy to make the argument against abuse of power.

Now, when we get back to abuse of power rather than obstruction of Congress, Congress considered a lot of words. They considered peculation, that was a reason why we should have impeachment. They said dishonesty, now, practice, abuse of power, all of those were reasons we should have impeachment. None of them were ultimately decided upon as grounds for impeachment.

There's a big difference for why you need to have impeachment, because then you don't have to balance it against anything. But when you cover up with the grounds, you're worried about Congress abusing its power so you have to strike a balance and the balance was struck with those four words, those four concepts, treason, bribery, other high crimes and misdemeanors, not abuse of power.

TOOBIN: Those four words -- I mean, you have an interpretation of those four words and the --

DERSHOWITZ: I do and I'm going to present it. I'm going to present it.

TOOBIN: You know, you're acting as if you're -- you know, when I was your student, you represented Claus von Bulow brilliantly --

DERSHOWITZ: Right.

TOOBIN: -- in the Rhode Island Supreme Court. And you got his conviction over turn. Were you representing Claus von Bulow or the constitution?

DERSHOWITZ: In that case, Claus von Bulow. I was directly --

TOOBIN: And so why is that different from --

DERSHOWITZ: Because here he has seven or eight lawyers, each of us have different roles. My role is to present the constitutional case. I am not going to be involved in the discussions about tactics or witnesses. That's not part of my role.

[20:40:10]

My role is to make the constitutional argument and that constitutional argument is being made against impeachment and the beneficiary of that is going to be Donald Trump, if I prevail. I hope to get some Democrats on board.

COOPER: Professor Dershowitz, I appreciate your time, Jeff Toobin as well.

DERSHOWITZ: Thank you.

COOPER: Up next, we're going to talk to one of the jurors in the impeachment trial, Senator Tammy Baldwin. Her take on what we just heard. Plus, the news we reported at the top, more documents suggesting that former U.S. Ambassador to Ukraine Marie Yovanovitch may have been under surveillance.

(COMMERCIAL BREAK)

COOPER: We just heard from Alan Dershowitz who is speaking before the Senate on the President's behalf on the constitution. One element Democrats may be interested in presenting, it's our breaking news this evening, more documents suggesting that Marie Yovanovitch may have been under surveillance before she was recalled as U.S. ambassador to Ukraine.

As we reported earlier, text released by House Democrats showing American associate of Lev Parnas, who got a name Robert Hyde, texting a Belgian number, that person or person sent Hyde a photo of former U.S. ambassador to Ukraine, Yovanovitch, and says they'll give Hyde her address next week. Hyde responds "awesome."

[20:45:05]

Joining me now is Democratic Senator Tammy Baldwin of Wisconsin who's a juror in the impeachment trial. Senator Baldwin, thanks for being with us. I'm wondering what your reaction is to this new material --

SEN. TAMMY BALDWIN (D-WI): My pleasure. COOPER: -- that House Democrats released tonight from Lev Parnas, more communication about alleged surveillance to former U.S. Ambassador Yovanovitch.

BALDWIN: Well, obviously there's been a lot of discussion since the House Intelligence Committee started releasing some of the documents that he had shared with the committee. And I think it should be considered among the pieces of evidence that I hope we'll get a chance to review.

You know, we're anxious to have a full, fair and honest trial. And as you know, there's still an ongoing dispute about whether there will be any witnesses or any opportunities to view documentary evidence. And, frankly, I don't know how it can be a full, fair and honest trial unless we get those opportunities.

And this has sort of heightened -- the interviews that Lev Parnas has done is sort of heightened the interest in getting that sort of information before the Senate. But it also points back to our strong need to hear from the four witnesses that we have been pushing for now for weeks, former National Security Adviser John Bolton, Acting Chief of Staff Mick Mulvaney, and Robert Blair and Michael Duffy, who are both high-ranking White House officials with firsthand, direct knowledge of all the President's conduct that's being alleged in these articles of impeachment.

COOPER: The -- one of the things that Professor Dershowitz was saying was if, you know, Democrats get the witnesses they want to have that Republicans should be able to have witnesses as well. And there's been indications from some Republicans that they would like to have, you know, Hunter Biden or Vice President Biden. Does that make sense to you?

BALDWIN: Well, the articles are very specific, abuse of power, referring of course to the President soliciting foreign assistance to -- for his personal benefit and political benefit in the upcoming election, and obstruction of Congress. And I know you've discussed those articles.

I have no idea what relevant and firsthand information somebody like Hunter Biden could provide, that would provide any clarity on the two articles of impeachment. And so, you know, I don't see a reason why they would want to bring a witness like that forward given what we're listening to and what we want to get to the bottom of.

But, you know, right now we don't have any witnesses, and I am going to be pressing as hard as I can and hopefully joined by several Republicans so that we can have a real trial, a full trial and an honest trial.

COOPER: Do you think that there are enough Republicans to want that? I mean, I've heard estimates of anywhere from three to four would be needed.

BALDWIN: You know, there's a new tally every day. It strikes me that just a week ago Mitch McConnell was saying that he had the votes of the Republican caucus to not allow witnesses, but I think that there will probably be more than one debate about witnesses when we convene on Tuesday.

And I think when we do, it will be a solemn and serious as the day we had yesterday when we were sworn in as essentially senators sitting as jurors. I think we'll have a debate on the conduct of the trial and it may not be the last word.

I do know that our leader, Chuck Schumer, will have the opportunity to amend any motion or resolution that Mitch McConnell brings forward about the conduct of the trial. I expect us to debate and I certainly hope enough of my Republican colleagues want to see from -- want to hear from John Bolton, want to hear from Mick Mulvaney and Robert Blair and all of these witnesses, Michael Duffy, who have firsthand, direct knowledge of the President's conduct that's being alleged.

And frankly, you know, I assume that the President may want to bring witnesses. This is a time where he can present his case and he chose really not to during the House impeachment inquiry and, you know, that's the President's choice. But I think that it would, you know, behoove him now that he has his full legal team announced to be thinking about the case that he's going to present.

COOPER: Senator Tammy Baldwin, I appreciate your time tonight. Thank you.

BALDWIN: I appreciate yours. Thanks.

COOPER: Senator, thanks. Coming up, allegations the President called the nation's top military commanders "bunch of dopes and babies." Details ahead.

(COMMERCIAL BREAK)

[20:54:17]

COOPER: This meeting has been reported on many times but new details about it, if true, are quite extraordinary and disturbing. The high- level meeting took place in July of 2017 between President Trump and his top military chiefs. A new book written by two Washington Post reporters details the meeting. It's titled "A Very Stable Genius," the book, "Donald J. Trump's testing of America."

According to the authors, the meeting's goal was to educate the President on what was felt were gaping holes, gaping holes in his knowledge of history. But the tutorial, reportedly devolved very quickly.

In an excerpt published today, they write that as the meeting were on, the President lashed out at the military brass saying, "You're a bunch of dopes and babies." He also reportedly said to them, "You're all losers. You don't know how to win anymore." In the meeting's aftermath, then Secretary of State Rex Tillerson was reported to have called President Trump a bleeping moron. Joining us now is former Defense Secretary William Cohen.

[20:55:06]

Secretary Cohen, I read this section of this new book, and though this has been reported on in the past in other books and articles, the new details on this are particularly troubling. And the whole thing is really, I got to say, it was frightening to read the level of the inability of the President to concentrate and to actually sort of understand what he was being talked to about.

WILLIAM COHEN, FORMER DEFENSE SECTARY: Well, again, I haven't read the book. I read just a brief excerpt of the book, and it is demeaning to every person who wears the nation's uniform, for President Trump as commander in chief to say that Secretary of Defense Jim Mattis and Chairman of the Joint Chiefs Joe Dunford are babies, or sissies, or incompetent. It's -- to me, it's stunning that he would say that. As someone who has not worn the uniform himself, I think you need to take care and pay the appropriate respect to the people who have.

The other thing that's in the book is that he is turning our military -- in his mind, we are a mercenary organization, our military.

COOPER: Yes. It's all about making money -- he wants everybody to pay for American troops to go places. He wants to take -- I mean, there's ludicrous idea of taking our country's oil, which is something he talked about during the campaign. And, I mean, I've talked to him about it and, you know, I thought he was interesting in saying at the time and, you know, a violation of just every, you know, we're not Vikings like trying to pillage a country.

COHEN: The notion that anyone joins up to serve our country is in it for the money is absurd. He is obsessed with making money. In fact, one of the excerpts he said, if you were running a private company, you'd go bankrupt. Well, there's a supreme irony since he has gone bankrupt on several occasions.

COOPER: Yes.

COHEN: But the Pentagon, the Defense Department is not run as a private entity, a profit making enterprise. It is organized and funded in order to protect our national security. And we are deployed globally not as a favor to any other country. We deploy to those countries that share our interests and our ideals. And that protects our national security.

And in his mind, what we have to do is bring everybody home, let everybody else defend for themselves. That is a very Darwinian world, in which I think we are inviting conflict on a massive scale.

So our people have been deployed honorably and without compensation that anyway -- that nears what he has in mind in terms of a business operation. And they're willing to sacrifice life and limb on our behalf.

I just entertained the youngest living Medal of Honor recipient, Kyle Carpenter, who fell on a hand grenade in order to protect his comrades. Had his body blown apart and pieced back together over the years. This young man was not doing it in order to make money. He was doing it in order to protect his comrades and his country.

And for the President to suggest that bunch of sissies, bunch of incompetents, it really betrays the notion of our military, the service that the men and women render to this country.

And as commander in chief, I think he has an obligation to instill pride, respect for their patriotism and sacrifice. He does anything but that when he goes in to the Pentagon or in the situation room and says you're a bunch of incompetents. You're losers. You've never won anything.

Well, they've been in the blood and the mud, and they've fought in that on behalf of the country. I have four four-star generals in my office and I know these are the proudest people I have met with, the most patriotic and I would fight beside them any time. And when the President said he wouldn't have any one of them fight with him, I would say I'll take them any day of the week as opposed to the commander in chief.

COOPER: Yes. I mean, like the President knows what it is to fight anywhere. The other thing was so -- just, you know, honorable about the people in the room at the time, the military personnel is, especially the lower ranking officers who were on the side of the room in this briefing.

They just -- you know, they sat there listening to what the President was saying and, you know, some, according to the reporter who did this book, some thought about walking out. But they sat there, you know, they put their heads down. They just continued to do their jobs despite what the President was saying.

COHEN: They are trained to obey the chain of command. The President of the United States sits at the top of that chain. And so by their culture and tradition and obligation, they are there not to challenge the President and to criticize him on his very first meeting, but to rather listen to what he has to say, to listen to his response to what their briefing is rather than be demeaned.

COOPER: Yes.

COHEN: So I don't fault them for that, and according to the book it was Secretary of State Rex Tillerson who raised the issue, Mr. President, you can't talk that way.

COOPER: Yes. Secretary William Cohen, I appreciate your time. Thank you.

COHEN: Sure.

COOPER: The news continues. I want to hand it over to Chris for "Cuomo Primetime.