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Trump's Lawyers Face Noon Deadline to Submit Written Defense; Preview of Legal Strategy for Both Sides in Impeachment Trial; Lawmakers Clash over Scope & Rules of Impeachment Trial; Democratic Candidates Campaign in South Carolina. Aired 11-11:30a ET

Aired January 20, 2020 - 11:00   ET

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

[11:00:00]

STEPHANIE ELAM, CNN CORRESPONDENT: So that's a big funny one there. But Phoebe Waller-Bridge did win as well for "Fleabag." That shows that people love it so much.

JIM SCIUTTO, CNN ANCHOR: Yes, it's a great show.

ELAM: Yes.

SCIUTTO: Stephanie Elam, thanks so much.

Thanks so much to you for joining me on this holiday today. I'm Jim Sciutto.

"AT THIS HOUR" with Kate Bolduan starts now.

KATE BOLDUAN, CNN ANCHOR: Hello, everyone. I'm Kate Bolduan. Thank you for so much joining us for a special edition of AT THIS HOUR.

In a little more than 24 hours, the Senate will begin the third presidential impeachment trial in U.S. history. And with just 24 hours to go, there's a shocking amount that is still unknown about how this thing is going to play out.

The rules that dictate every aspect of the Senate trial not known. How much time each side will have to make their case not known. How many if any witnesses will be allowed to be called, not known. How long the trial is going to last. You're sensing a theme here.

One thing that is known, the president's legal team is up against a deadline. They have until noon today to file a legal brief outlining their case defending President Trump.

Next hour is also a deadline for the House to respond to the president's legal team.

While they will make their case on the Senate floor starting tomorrow, we have a preview of the legal strategy of both sides.

The president's legal team saying this about the two articles of impeachment passed by the House, quote, "This is a brazen and unlawful attempt to overturn the results of the 2016 election and interfere with the 2020 election now months away."

Predictably, the House managers had a much different take, saying this in part of their very lengthy legal brief, "President Trump's conduct is the framer's worst nightmare."

Let's go to Washington. CNN congressional reporter, Lauren Fox, is standing by as well as White House reporter, Sarah Westwood.

Sarah, let me start with you.

You're learning more about the president's legal strategy, the team, the roles. What do you got?

SARAH WESTWOOD, CNN WHITE HOUSE CORRESPONDENT: Well, we're learning more about the role that Pat Cipollone, the White House counsel, is going to play on the team. Pat Cipollone is expected to be the lead lawyer on the president's defense behind the scenes, shaping the arguments and crafting some of the legal filings that the White House is going to submit this week.

But also on the Senate floor. Cipollone is expected to deliver that key opening statement into the trial, according to sources close to the legal team.

And Cipollone is someone who is untested in the spotlight. Unlike the other lawyers who will be presenting with, like Jay Sekulow and Ken Starr, Cipollone does not have the television experience.

We talked to people who have known Cipollone for years, worked with him in the past, and they say not to underestimate his experience in the courtroom. He spent years practicing civil litigation.

But still Cipollone faces a difficult task here, trying to please a president who values performance so highly. We know that President Trump has been saying that he wants his defense team to be aggressive.

And on Saturday night, we did get a look into just how aggressive the tone of Trump's defense is going to be when we got the response to the Senate summons that the White House filed on Saturday night.

I want to read you a couple of lines from that document. "All the House Democrats have succeeded in proving is that the president did absolutely nothing wrong. President Trump categorically and unequivocally denies each and every allegation in both articles of impeachment."

As you mentioned, Kate, in just under an hour, we are expecting to get the trial brief from the White House. That will give us a lot more detail about the White House strategy.

That summons on Saturday evening was more of an overview of the central arguments against both articles of impeachment. But the trial brief is expected to be longer and have a lot more detail about that strategy.

And this is a document, Kate, that Pat Cipollone took a lead role in crafting.

BOLDUAN: All right, so, Lauren, then what is the latest on the legal strategy on the other side?

LAUREN FOX, CNN CONGRESSIONAL CORRESPONDENT: As we speak, we expect that the House managers are going to be walking over to the Senate to get a basically sense of what the trial space is going to look like for them, an opportunity to see the Senate floor and see where they're going to be making their arguments beginning tomorrow.

And, of course, Kate, the legal brief that they filed on Saturday was more than 100 pages. It really laid out the facts that we already know, that the president used his office in an effort to withhold military aid to Ukraine when that country needed it and withhold a White House meeting.

They wrote in the brief, quote, "The Constitution provides a remedy when the president commits such serious abuses of his office, impeachment and removal. The Senate must use that remedy now to safeguard the 2020 U.S. election, protect our constitutional form of government, and eliminate the threat that the president poses to America's national security."

Now, going into tomorrow, there are a lot of questions about what this resolution from Majority Leader Mitch McConnell that dictates the rules of the trial is actually going to look like.

Like you said, Kate, we don't know a lot of details, how much time does each side have to debate their case, how many hours are there going to be for Senator questions.

[11:05:09]

Some of that has been laid out to Republican members, but Democrats are arguing they're still in the dark about what the resolution is going to look like.

McConnell worked very closely with some of the moderate Senators, like Lisa Murkowski and Susan Collins, to craft some kind of resolution that they could support, but whether or not any Democrats support it, another question entirely -- Kate?

BOLDUAN: What kind of fight it might be when this is all revealed.

Sarah, thanks so much.

Lauren, thank you.

Joining me now, Ross Garber, CNN legal analyst and expert on impeachment. He's represented four governors in impeachment proceedings. And Shan Wu, CNN legal analyst and former federal prosecutor.

Thank you for being here.

Ross, everyone is waiting for this fuller filing from the president's team. It really could come any minute. They filed just the six pages so far. What are you looking for in the full filing?

ROSS GARBER, CNN LEGAL ANALYST: See, I'm expecting and looking for it to be sort of consistent with what has already been filed and what the president sort of tactic all along.

I think it will be direct. I think it is going to be pretty pugnacious. I think it's going to sort of recognize this sort of partisan dynamic that's going on. I think that's what we'll see from the president, very, very straightforward.

The House's filing was much more sort of erudite, a little bit academic. But I think, from the president, we're looking for something very direct and very political.

BOLDUAN: So, Shan, what does the House managers filing tell you about the legal strategy going in? It was over 100 pages as Lauren is laying out. What does it tell you how this is -- when they do get to the Senate floor what is going to happen?

SHAN WU, CNN LEGAL ANALYST: The House managers' briefing indicates they have correctly anticipated the president's approach. As Ross was saying, we are expecting it to be very combative.

But the president's approach is just trying to ignore the facts by giving some constitutional cover to the defense team.

The House integrates that issue because they cover the constitutional basis, really making a point this is exactly the kind of instance the framers were thinking about when they put in the impeachment provision and also blends in the particular facts of this case to show it.

So they're doing what you would expect of good lawyers to do, here is the law, here is the facts, let's put them together.

BOLDUAN: This gets you -- you mentioned the constitutional question, and this is kind of where this -- I don't know we call it a strange place, because one of the president's attorneys, Ross, took to tv this weekend to argue a key constitutional question, I guess, being raised here. He's raising it.

Here is Alan Dershowitz on CNN yesterday.

ALAN DERSHOWITZ, COUNSEL, TRUMP'S LEGAL DEFENSE TEAM: Without a crime, there can be no impeachment.

There certainly doesn't have to be a crime. If you have somebody who completely corrupts the office of the president and who abuses trust and who poses great danger to our liberty, you don't need a technical crime.

(END VIDEO CLIP)

BOLDUAN: That, right there, was Alan Dershowitz of 1998. Why should anyone believe Alan Dershowitz, Ross, today if he was on the opposite side of this constitutional question during Clinton impeachment?

GARBER: Well, sometimes lawyers change their opinions based on learning new things or different evidence evolving. Who knows?

Look, Kate, I'm not sure of anybody who defended more impeachments than I have. And even I think Dershowitz is wrong on this. I don't think you need a technical criminal violation for there to be an impeachable offense there are lot offense.

There are lots of reasons for that. There weren't very many criminal offenses for quite a while after the Constitution was adopted. And one can imagine an incredibly egregious action that affects the office that isn't necessarily a crime.

Also, at the time of the writing of the Constitution, the framers knew the phrase "high crimes and misdemeanors." It had been applied in England and it didn't necessarily require an actual commission of a crime.

BOLDUAN: So it is not just Alan Dershowitz, Shan. Another member of Trump's legal team has made a similar argument, just this morning.

Let me play what Robert Ray said.

(BEGIN VIDEO CLIP)

ROBERT RAY, COUNSEL, TRUMP LEGAL DEFENSE TEAM: This is an impeachment that is fundamentally and constitutionally flawed. Never in our history has there been an impeachment with the president without even an allegation that a crime has been committed.

And that, under the circumstances, given that, that is untethered to the foundational principles that come from the Constitution itself. And, you know, to drift away from that is essentially an effort -- a partisan one at that -- to attempt to remove a duly elected president.

(END VIDEO CLIP)

BOLDUAN: OK, so you have that from Robert Ray.

[11:10:00]

Let me read from another well-known constitutional law professor, who wrote this, in the "Washington Post." This from Laurence Tribe. "The argument that only criminal offenses are impeachable has died a thousand deaths in the writings of all of the experts on the subject."

"But it staggers -- but it staggers on -- staggers on like a vengeful zombie. In fact, there is no evidence that the phrase 'high crimes and misdemeanors' was understood in the 1780s to mean indictable crimes."

The Constitution hasn't changed in 20 years. What is going on here then, it is not just Alan Dershowitz, but you hear the same from Robert Ray this morning.

WU: Well, Kate, you heard of moral relativism. This is like impeachment relativism. The Trump lawyers are really just saying that, for our cause, for our president, we think that this would improperly interfere with the election. That's the whole point of the impeachment provision, someone has been

elected and there's a problem, this is how you get rid of them.

What they're really trying to do, Dershowitz -- and really Starr is there for the same reason -- they want to read the impeachment provision right out of the Constitution. They want to make it surplusage and say it just can't be used under any circumstances because it will always interfere with the election.

And that makes no sense. The framers then just throw it in there willy-nilly for fun. They threw it in there for a reason.

BOLDUAN: Then, Ross, as someone who has defended -- defended governors, defended public officials and many impeachment proceedings, why do you think at this moment, 24 hours our from the beginning, you have two of the president -- two of the president's attorneys make -- focusing here, focusing on this.

GARBER: Yes, you know, one would think that it might defy common sense because it plays into an argument that, yes, the conduct may have been really bad, but it wasn't a crime. I don't think that's what they're doing here.

I think the advantage of this argument is probably that it is straightforward. It is simple. No crime equals no impeachment. And as the benefit --

(CROSSTALK)

BOLDUAN: Even if it is not logical or accurate?

GARBER: Even -- and has the benefit of having some historical basis. They'll point to, you know, Nixon where there were crimes. They'll point to Clinton, where there was a crime alleged. I think that's the -- that's probably the goal.

But I think what we're going to see is this thing evolves is more of a -- a little more refined argument, saying that it is conduct was not wrongful in any way and certainly didn't rise to the level of an impeachable offense, something that would disrupt the 2016 election results and potentially interfere with the 2020 election. I think that's what we're going to hear.

BOLDUAN: We're going to find out the next step in this, some argument, very, very soon.

I really appreciate it.

Thanks so much, Ross.

Thanks so much, Shan.

GARBER: Thank you.

BOLDUAN: Coming up, the rules of President Trump's Senate impeachment trial still a mystery. What is the holdup on this? Is this part of a broader strategy by Senate Majority Leader Mitch McConnell? That's coming up.

(COMMERCIAL BREAK)

[11:17:17]

(BEGIN VIDEO CLIP)

SEN. CHUCK SCHUMER (D-NY): Make no mistake about it, we will force votes on witnesses and documents. And it will be up to four Republicans to side with the Constitution, to side with our democracy, to side with rule of law.

(END VIDEO CLIP)

BOLDUAN: A warning from the top Democrat in the Senate, Chuck Schumer, there. Schumer making clear that Democrats may force Senators to go on the record on the first day of the trial -- as the first day of the trial as about to begin in earnest tomorrow.

And one day before the real action begins, it is still a mystery of what the Senate trial is going to look like in large part.

Senate Majority Leader Mitch McConnell still has not revealed the rules of the road, rules that will ultimately shape who gets to speak and for how long or what evidence and what evidence is allowed to be presented to the jury of 100 Senators.

Democrats have made no secret that their number-one priority going in is to be able to call witnesses to testify. So what happens now?

Joining me now, CNN congressional correspondent, Phil Mattingly, and Alan Frumin, CNN contributor and the former Senate parliamentarian who oversaw the Clinton impeachment trial.

Thank you, guys, for being here.

Phil, let's start with the witnesses. Where does the fight stand right now?

PHIL MATTINGLY, CNN CONGRESSIONAL CORRESPONDENT: Here is the baseline. As you noted, there will be a test vote, if you will, tomorrow. The Senate majority leader will unveil the initial rules of the road. And those rules of the road can be amended. And Democrats have made clear they're going to try and amend them to get witnesses and subpoenas for documents up front inside that resolution.

Here is the reality. They don't have the votes to do that at this point in time. The four Republicans, Kate, that we reported who are open to witnesses have made very clear they're very in line with Senate Majority Leader Mitch McConnell, that those questions should not be dealt with until after the initial presentations from the White House defense team, from the House managers, and after Senators are given 16 hours to ask questions.

It will be at that point when the crucial votes will occur. And the reality remains what it has been for the better part of history of impeachment trials, which is, if you have 51 votes, you get to dictate how the trial goes, how many witnesses come forward, whether or not there are subpoenas for documents.

And that's why Democrats are so keen on putting pressure on Republicans, trying to get four Republicans to come over. But a Republican that says they're open to witnesses does not mean a Republican that is going to vote for specific witnesses.

At this point in time, right now, there are not 51 votes for any specific witnesses. And we're likely going to have to wait a week or two to actually see whether or not that comes to fruition.

BOLDUAN: Alan, when it comes to the rules, can Senate Democrats force a vote on witnesses before oral arguments and Senator question time like Mitch McConnell is planning on it going?

[11:20:05]

ALAN FRUMIN, CNN CONTRIBUTOR: Good morning, Kate.

Like so much about Senate procedure, the answer is a little murky. Senate procedure is murky generally. And Senate procedure with respect to impeachment trials is murky squared.

There are two principles of Senate procedure They are unlimited debate and the right to offer amendments. In an impeachment trial, there's no rational for unlimited debate. There's no filibustering in an impeachment trial.

However, the principle of the right to offer amendments, I believe, does exist, should continue to exist, and should provide the Democrats with at least the opportunity to present an alternative to whatever it is that Majority Leader McConnell will propose.

There's no guarantee that they will prevail. There's also no guarantee that Senator McConnell might not try to amend Senator Schumer's presumed amendment.

But it seems to me in every impeachment trial the right to offer amendments has existed. And there's no reason to believe it won't exist in this trial.

BOLDUAN: So, Phil, what is the thinking behind keeping the rules and procedures under wraps still? Most everything when it comes to Mitch McConnell is intentional. So what is this?

MATTINGLY: That's a great point. Everything he does is intentional. And it's no different here. I'll let you in on a little secret. It's because the resolution hasn't been finished.

I think one of the interesting elements of the last couple of weeks is McConnell came out and said, look, all 53 Republicans are behind my strategy, my kind of process for how the initial part of the trial is going to go. However, they had not agreed on every single word of the resolution. What is going on behind the scenes -- and we have reported a lot of it

but a lot of it has been kind of closed off to people out in public -- is McConnell has been negotiating. McConnell has been working through what this resolution will actually say.

He's been working with moderate Senators and will likely, I'm told, almost certainly will include language that will guarantee an up-or- down vote on witnesses toward the end of the trial.

He's been working with the White House and some of the conservative allies to make sure the White House has the options that they want inside this resolution as well.

The reason that it is not public yet is that, for the most part, over the course of the weekend, I'm told, it is not done.

And it's interesting because of how McConnell moves, making so clear he believed all 53 Republicans were with him. Now he has to back that up. And that's what he's been doing behind the scenes.

He's working with the different poles of the Republicans inside the United States Senate to ensure that unity, to ensure all 53 stick together, and that's where they are now.

I'm told, at least at this point, we don't expect to see the resolution, Kate, until tomorrow, shortly before it actually comes up for consideration and the vote.

BOLDUAN: Fascinating.

Alan, with over 24 hours until the thing starts, what is your reaction to not knowing the rules of the road at this point? Isn't pretty much everything impacted by that?

FRUMIN: Yes, everything is impacted by that. But having worked at the Senate for 35 years, the Senate and its individuals and the public not knowing the rules of the road is a very Senate-like thing. This does not surprise me at all.

It does not surprise me at all to hear that Senator McConnell is working on the specific language that he wishes to present, that he's working his colleagues.

The majority leader is an extremely skilled legislator. If anybody knows the rules of the road, he does. He will leave no stone unturned.

So, no, I'm not least bit surprised that we are where we are with this cloak of mystery.

BOLDUAN: I get the keen sense, from all the years you spent in the chair, Alan, very little surprises you at this point.

It is good to see you.

Thank you, Alan.

Thank you so much, Phil.

I really appreciate it.

FRUMIN: My pleasure for being here.

BOLDUAN: Thank you.

[11:23:42]

BOLDUAN: Coming up, the top Democratic presidential candidate in South Carolina this morning. Their message to voters on this MLK day, just as there are also sprinting to the finish in Iowa. That's next.

(COMMERCIAL BREAK)

BOLDUAN: Welcome back to a special holiday edition of AT THIS HOUR, everyone.

This morning, the top Democratic presidential candidates are gathering in South Carolina. It's not only the first state in the south to vote, it is also a huge gathering in honor of Martin Luther King Jr Day. The presidential hopefuls rallying outside the state House after marching through the streets.

And check your calendar. Today, you'll remember, marks one week until the first contest in the Democratic primary in Iowa. And the deadline pressure seems to be showing.

Joining me now, CNN political correspondents, Jessica Dean and Ryan Nobles.

Thank you, guys, for being here.

Jessica, you're in Columbia, South Carolina, where these big events are taking place, have been this morning. What have you been hearing from the candidates and their message to South Carolina voters now?

JESSICA DEAN, CNN POLITICAL CORRESPONDENT: Well, really, Kate, their presence here is what has been so important to people here in South Carolina. This is a marquee event in an early state.

As you mentioned, we saw them marching down the street together, the candidates kind of linking arms.

And notably, Elizabeth Warren and Bernie Sanders standing side by side as they marched through the streets here in Columbia, South Carolina. It's interesting, a week ago, they were going back and forth with each other about that private conversation that they had. But today, the show of unity here in Columbia, South Carolina.

[11:30:09]

And when it comes to South Carolina, former Vice President Joe Biden continues to lead here.