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ERIN BURNETT OUTFRONT

CNN Obtains Proposed Rules For Impeachment Trial; Gives Each Side 24 Hours Over Two Days To Make Case; Sen. Chris Van Hollen (D-MD) Discusses About The Timing Of The Release Of The Rules Of President Trump's Impeachment; Schumer: McConnell Is "Hell-Bent On Making It Much More Difficult To Get Witnesses And Documents"; Proposed GOP Impeachment Trial Rules Allow For Vote About Whether To Admit Evidence; McConnell Releases Proposed Impeachment Rules As Trump's Legal Team Reveals Its Defense. Aired 7-8p ET

Aired January 20, 2020 - 19:00   ET

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


WOLF BLITZER, CNN HOST: ... message to remember, especially on this day of service. A truly, truly great American. Thanks very much for watching. Erin Burnett OUTFRONT starts right now.

ERIN BURNETT, CNN HOST: OUTFRONT next breaking news, Senate Majority Leader Mitch McConnell has just released the details of what Trump's trial will look like. We are talking 12-hour days that go past midnight. Why the rush?

Plus, a preview of team Trump's defense. But just hours until President Trump's trial begins, why is a key member of his defense team unable to say if the entire team has even met.

And the feud between Sanders and Biden heating up just days before the first votes. Let's go OUTFRONT.

And good evening. I'm Erin Burnett. Welcome to a special holiday edition of OUTFRONT. Tonight, we have breaking news and this is it.

Senator Mitch McConnell's long-awaited plan for Trump's impeachment trial. We have it. We have obtained the resolution which details what the trial will look like and it's not like anything we have seen before. Here's some of the key things you need to know, each side has 24 hours to make its case. And those 24 hours are going to take place over two days.

There have been talk of each side having five days to make the case. That is not the situation that Mitch McConnell wants. Two days, 12 hours each. And those 12 hours don't start till one o'clock in the afternoon.

You can do the math. That means it goes until one o'clock in the morning, every day.

McConnell is clearly in a rush, possibly trying to wrap the entire impeachment trial up by Trump's State of the Union address which is scheduled for Tuesday, February 4th. But the timing is not flying with Democrats and there is a fair question as to why such a rush to have this sort of thing going on until one in the morning when few people will be watching. Does that impact whether it can be fair?

Phil Mattingly is OUTFRONT live on Capitol Hill. So Phil, you know not only what's in the resolution but what your sources are telling you from both sides of the aisle. What more are you learning about what this resolution does and does not tell us and do?

PHIL MATTINGLY, CNN CONGRESSIONAL CORRESPONDENT: Yes. Erin, this is four pages and this is essentially the rules of the road. This is what's going to dictate the next several weeks, at least the next several days of what this trial is going to look like.

Here's what you need to know, tomorrow when the Senate gavels into session at 1 pm, kind of restarting the trial in earnest, this will be the first thing senators consider. It will be something they vote on and all Republicans lined up behind Senate Majority Leader Mitch McConnell. It means that this will dictate how the opening stages of the trial go.

As you noted, Erin, the first presentations will be 24 hours apiece. And as you also noted, they will be compressed just into two days, basically two 12-hour sessions are the option. This will make things go faster and that's by design. Republicans want to move this trial as quickly as possible while trying to hew to the 1999 Bill Clinton impeachment trial rules and those rules allotted for 24 hours, they allotted for several days to consider those 24 hours.

The other issue here that I'm keying on right now is witnesses and that is in the Clinton impeachment trial, basically any Senator could offer a resolution to hear from a specific witness, to have a subpoena for a witness or a subpoena for documents. What this trial resolution sets into place is after the presentations from the President's defense team from the House managers and 16-hours for any senator to ask any question they want of those two sides, there will be an upper or down vote.

An up or down vote dictate whether or not there will be questions of subpoenaing witnesses or documents. If that vote fails, Erin, if they do not get 51 senators in favor of hearing more from witnesses or subpoenaing documents, that essentially puts the end to it. There will be no more resolutions on whether to hear from John Bolton or Mick Mulvaney or Hunter Biden if the President's team wants it. It is all the ball game when it comes to that specific vote itself.

There's another issue here that I think is interesting to pick up on and that is the admission of evidence. What these rules lay out unlike what you saw in 1999 is everything that the House managers send over is not immediately admitted into evidence for the trial.

Now, each senator will have that information and managers will be able to utilize that information. But the Senate would have to separately vote to include that information in the record for the trial. That's the difference and that's something Democrats are certainly keying on and opposed to, Erin.

BURNETT: All right. And Phil, stay with me, because we're going to have a lot of questions here as this develops over the hour. We may hear, of course, from Minority Leader Schumer in a few moments.

I want to go now to Democratic Senator Chris Van Hollen of Maryland. Senator, to give you a chance to respond here, I know Phil is laying out this resolution, some of the key differences between this and the situation with President Clinton.

Bottom line, Senator, why do you think Mitch McConnell waited until tonight which is, of course, is the night before the trial formally begins and all of you start to debate to release the rules and the timing?

SEN. CHRIS VAN HOLLEN (D-MD): Well, Erin, it's because he want to spring this on everybody. I mean, you would never see this in a normal trial proceeding. You've got in this case, Mitch McConnell is trying to spring this on people at the last minute.

[19:05:02]

So we're all scrambling to read the resolution as we talk to you. And he's been saying that he's going to follow the Clinton model, but as you just indicated he's actually departed from it in very significant ways. One is he wants to rush this thing through in the middle of the night, which suggests to me that he knows they've got a weak argument.

And the second thing, which we're trying to figure out is the existing evidence, put aside the question of future witnesses. But they have a provision in here that says that the existing evidence has been gathered by the House of Representatives doesn't enter into the trial record until a much later phase and then only by motion, which is very different from the Clinton trial. It's not clear what the implications are. We're trying to figure out the example ...

BURNETT: Yes. Can I ask you about that, because I'm trying to understand that?

VAN HOLLEN: Yes.

BURNETT: The understanding is you would have it, you'd be able to look at it, but it's not formally admissible. But if you're able to look at it, it could still influence your vote. So do you have a sense as to what the significance of it is at this point at all or ...

VAN HOLLEN: All we know right now is it's a departure from the Clinton model. And you would think that the evidence that has been collected by the House would be put in the record at the beginning of a trial.

BURNETT: Yes.

VAN HOLLEN: That would be the normal practice.

BURNETT: Yes.

VAN HOLLEN: Just like normally you would hear from witnesses and get your documents during the trial instead of after the trial and that's totally backwards, of course, here too. And Senator Schumer tomorrow will try to amend these rules so that we can hear from witnesses and get those relevant documents earlier in the trial.

But this other provision is like a sneak provision that's a departure from the Clinton resolution and it's not yet clear what all of the implications of that are, other than the fact that they're not going to enter into the record, all of the evidence has already been collected, so people who already testified under penalty of perjury.

One of the questions that we have is whether or not the House managers will be allowed to play the video, of the House witnesses.

BURNETT: Right.

VAN HOLLEN: People like Ambassador Taylor, Dr. Fiona Hill, are they going to be able to play videos of that? And none of that is clear in this resolution.

BURNETT: Yes. It's not laid out here. So what do you think the motivation is for Mitch McConnell for 12 hour days which begin at 1 pm? Obviously, just to lay out the math, starkly, that means you're finishing at one in the morning. So if you're televising this sometime between 10 and 11 o'clock, a lot of Americans are going to not be watching, they're going to go to bed.

VAN HOLLEN: Yes. I think he wants to do two things. I think, number one, he wants people to tune out because he knows that there's going to be a lot of very damaging information. And second, he's going to really make it hard on the House managers. I mean, if you look at any normal trial, the judge doesn't keep people going 12 hours straight.

BURNETT: Yes, exhausting.

VAN HOLLEN: So he's clearly trying to - yes, trying to exhaust the House managers and get people to tune out. And it's really underhanded here, especially when he kept beating his chest and saying, oh, well, we're going to follow the Clinton model. Well, he's taken that and torn it up in many ways.

So what he was telling the country for the last couple of weeks, he's totally disregarded at least in this document right here. Obviously, a fundamental vote, the big vote at least the way he set it up here, will be on that question after senators asked their questions after that period of time as to whether or not we will hear from witnesses and be able to get documents ...

BURNETT: And look, you're getting a vote on that.

VAN HOLLEN: ... and that will be the moment of truth.

BURNETT: In a sense, you know he doesn't want that vote at all, right? And had he been able to with his own side, with Republicans he would have not included that. So the fact that there is going to be a vote on witnesses and documents, do you consider that in and of itself a win? You're getting the vote.

VAN HOLLEN: Well, that's going to be the moment of truth for Republican senators. That will be the moment when they telegraph to the country whether or not they want a real trial, a fair trial or whether they're going to conspire with the President to prevent the senate from hearing additional evidence that we know directly bears on the two articles of impeachment. And that will be the big moment the way Senator McConnell will set this up.

BURNETT: All right. Well, Senator Van Hollen, I appreciate your time tonight. Thank you very much, sir.

VAN HOLLEN: Thank you.

BURNETT: Obviously, Senator Van Hollen will be there tomorrow as the trial begins.

Our breaking news coverage continues in a moment. The Minority Leader Senator Chuck Schumer, he is about to make his first live comments responding to McConnell's proposed rules and to this resolution. So we're standing by for that.

Plus, the battle lines are now drawn. Trump's lawyers are revealing their defense of the President this hour.

And with the Iowa caucus is now two weeks away, the 2020 contenders are getting more and more competitive with each other.

[19:10:00]

(BEGIN VIDEO CLIP)

JOE BIDEN, FORMER UNITED STATES VICE PRESIDENT, PRESIDENTIAL CANDIDATE: There's a little doctored video going around put up by one of Bernie's people.

SEN. BERNIE SANDERS (D-VT), PRESIDENTIAL CANDIDATE: It was not doctored.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[19:13:44]

BURNETT: Breaking news, McConnell is hell-bent, that's the quote and the reaction from the Senate Minority Leader Chuck Schumer to McConnell's rules for the Senate impeachment trial.

Schumer is saying in a statement, "It's clear Senator McConnell is hell-bent on making it much more difficult to get witnesses and documents and intent on rushing the trial through. On something as important as impeachment, Senator McConnell's resolution is nothing short of a national disgrace."

We do anticipate the first comments from the Minority Leader Schumer to come momentarily. We'll bring those to you live. McConnell meantime trying to condense the calendar. He is giving each side 24 hours for their presentations. We expected that. The anticipation have been that they would have five days each,

they're getting two. That's 12 hours per day starting at 1 pm. That means if they both make full use of their time, it's a 1 am end time daily.

OUTFRONT now, John Dean who was Nixon's White House Counsel, Anne Milgram, former New Jersey Attorney General, Joe Lockhart who was White House Press Secretary during Clinton's impeachment, Steve Inskeep, co-host of NPR's Morning Edition and Author of the new book Imperfect Union, which is an amazing story of a woman who had pretended to be a man and involved with Lincoln and that's what all I'll say about it for now, Steve.

STEVE INSKEEP, CO-HOST, NPR'S "MORNING EDITION": OK.

BURNETT: Phil Mattingly also back with me. It's a must read though, let's put it that way.

[19:15:00]

John, let me start with you. So you have this resolution now. We get the 12 hours per day, 24 hours per side condensed into these four days and then he lays it all out in a trial, which if there are no witnesses, you are looking not at two and a half weeks plus, which we were, you're looking at a week. What do you make of it?

JOHN DEAN, FORMER NIXON WHITE HOUSE COUNSEL: I can't believe he consulted with the Chief Justice. If I understood, there were arguments that were scheduled in the morning that now will have to be pushed aside and cancelled. I can't believe that all of the members on both sides are going to be happy with this.

But Joe and I were talking and maybe it'll work out really well because it'll be more condensed, because they'll put the best stuff on during prime time and sort of the mechanical stuff, and just putting things and evidence during the slow time.

BURNETT: So Phil, to that point because you have 24 hours and you have it over two days, and let's just say you're going to use 16 hours, do you have to use the whole first 12, end, and then use four of the next day or do the Democrats have a little bit of leeway of, oh, we're only going to use eight, we're going to end in prime time in the middle, and we're going to start up again the next day or is that not possible from what you understand?

Mattingly: No, they've got leeway. And I think it's a really interesting point, is both sides can yield back as much time as they want on either day where they're actually taking the time for their presentations. And if you don't think that they're not keenly aware of when people are going to be watching, you haven't really been paying attention over the course of this entire process.

I think it's fair to say, look, Democratic managers they've been meeting all day today in Speaker Pelosi's office strategizing, trying to figure out the way forward and they were very frustrated that they did not have the rules of the road. Now they have it and I think it's fair to say that they will be dictating their trial strategy very much so around when eyes will be on, when people will be watching, aware that the public sentiment here is as important as anything else as they try and wrangle at least four Republicans to join them later on in the trial to secure witnesses and documents.

And I think that will now factor in, in a major way, not Just for the Democratic managers, but also for the White House team as well, Erin.

BURNETT: So Joe, does this in a sense from what Phil is saying that there is some control.

JOE LOCKHART, FORMER CLINTON WHITE HOUSE PRESS SECRETARY: Right.

BURNETT: Perhaps give a little bit more power to Democrats than it seem. They don't have to be finishing at 1 am unless they're going to use all of their 24 hours, then they do.

LOCKHART: Yes.

BURNETT: But otherwise, they have some control.

LOCKHART: Yes. I think they've got a little bit of control. And I think this, as John was saying, may backfire a little bit. Great former prosecutors like Anne and others have told me that their best presentations are when they have less time than they think they need. And you can now program this so that you have an afternoon session, but you will know the prime time and I think maybe McConnell thinks that the networks would rather put on entertainment, but they will put on this trial if they know it's just like a three-hour block over three or four nights.

So as Phil was saying, I think Democrats will be smart to use that eight to 11 block to make their best case even if they're repeating things that's already been set in the morning. And I think the public has a limited bandwidth.

BURNETT: That's an interesting idea.

LOCKHART: A limited bandwidth on how much they can watch. So at the end of the day, there's lots of other problems with the resolutions. This is not the Clinton rules. There are things in there that are just outrageous. But limiting the time, I think, they may come back to bite them.

BURNETT: And Steve, the other thing I don't know if you just heard Senator Van Hollen, he was just talking about he wasn't sure yet of the implications of this issue with the admissibility of evidence. That the assumption had been everything that the House had dealt with before would automatically go into to the Senate, whether it's what Lev Parnas had to say, what was said behind closed doors and this explicitly that is not the case.

It's only things that were public, transcripts of public hearings, but yet the senators get to consider it even though it's not formally put on the table. What do you make of that and what McConnell is trying to accomplish with trying to thread the needle in this bizarre way? INSKEEP: I'm getting confused even listening to you describing it,

Erin, which perhaps is part of the purpose here.

BURNETT: Yes.

INSKEEP: But the compressed nature of the proceeding is key. I think your panelist made good points that Democrats, much as they dislike this may well turn it to their advantage. But if you are Mitch McConnell, if you are President Trump for that matter, one of the things that you want is for the relative embarrassment, anything that's embarrassing to them about this trial to go away quickly and to just be one of the other flood of news events that we will face between now and November.

If this is a narrow enough proceeding, if it's a short enough proceeding, that leaves less time for things to get out of hand and it just pushes it farther and farther away from the minds of voters by the time November comes around.

BURNETT: And Anne, what about the issue of documents and witnesses? Now, this is something McConnell didn't want to put in.

ANNE MILGRAM, FORMER FEDERAL PROSECUTOR: Right.

BURNETT: OK. It's in here because he knew there were enough Republicans that would insist it be there, but there is no vote until the statements, senator questions, so you're a weekend before you even get there.

MILGRAM: Yes.

BURNETT: That's the best he could do. You've heard Senator Van Hollen still angry about it.

[19:20:01]

MILGRAM: Yes.

BURNETT: But is that a win for Democrats, this vote on both witnesses and documents?

MILGRAM: I think it's important that it's in there and that it's promised as a vote, but it really is not enough in my view. When you think about and I know that this is not a normal trial, but if you think about the people who bear the burden of responsibility, here the burden of proof are the House managers to prove their case.

And to me they have to be given leeway to put in the evidence and the facts that they think and call the witnesses that they think prove that case. Otherwise, they're really hamstrung in being able to argue their case. And so I personally think it's a small win, it's obvious that the Republican senators, a few of them insisted on it. But it's really we're still entering a trial without an understanding of whether or not key people with firsthand knowledge will be able to testify. BURNETT: And Phil, what about things like audio and video as they make

their case? As we do every night when we're telling people, what do they need to know where somebody who contradicted someone else or six witnesses who publicly said the exact same thing which would corroborate a claim in their article of impeachment, are they going to be able to present in that manner or not?

MATTINGLY: So technologically the answer is yes.

BURNETT: Yes.

MATTINGLY: And people who had walkthroughs today, both the senior administration officials who are on the Senate floor, we couldn't see them but I talked to them when they came out, make clear there are four televisions on the Senate floor. They have the ability not just to show video, they can pull up tweets, they can do PowerPoints if they want to. All of that is available to them.

But Erin, I want to hearken back to what Senator Van Hollen told you. The big question that he raised that I'm actually not very interested in is the idea of if the evidence itself has not been admitted into the trial record, can you use it in video and I think that's the one question we've had.

I've been told repeatedly that this evidence provision itself doesn't preclude senators from having it in front of them. They will have the entire record of the House proceedings. But what does that mean for demonstrations? What does that mean for exhibits? And I think that's the one thing Senator Van Hollen keyed on and I'm interested.

Right now I actually just texted somebody, a Republican who was working on the resolution to say is this preclude that or not, because they have the opportunity to do it. And both sides, I'm told, will utilize the technology to be able to make their case to the American people in kind of a more salient manner.

And I think the question now becomes is the evidence rules or evidentiary rules do anything to preclude that? And my initial understanding is no, but Senator Van Hollen made a really interesting point there.

BURNETT: It's a crucial question. So John Dean, what do you think happens here in terms of this resolution? Obviously, Senator Schumer will do everything he can to try to amend it. But it is clear that Mitch McConnell has the 51 votes he needs for this resolution, do you think Democrats will be successful in any sort of modification here?

DEAN: I think they'll raise it in maybe less than their primetime hours. They will hit away at this with the members, try to convince some people, give them some good reasons for why this evidence is really called for and they'll have multiple votes on it. They can force some of those and it's not over till it's over. With trials, they're unpredictable.

BURNETT: All right. All of you, please stay with me. Next, the White House laying out its defense, slamming the Democrats'

case. But Democrats are hitting back calling Trump's defense 'chilling'.

Plus, his job is to defend Trump but Alan Dershowitz' words are now coming back to haunt him.

(BEGIN VIDEO CLIP)

ALAN DERSHOWITZ, TRUMP'S DEFENSE ATTORNEY: President is not above the law.

Presidents are not above the law.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[19:27:15]

BURNETT: Welcome back to a special holiday edition of OUTFRONT. We are following the breaking news. Senator Mitch McConnell revealing the proposed rules of the President's impeachment trial, which starts just hours from now, so we're just getting this a few hours before it begins.

This is Trump's team calls the Democrats impeachment case a front to the Constitution and they have laid out their defense in 110-page filing.

Kaitlan Collins is OUTFRONT at the White House. So Kaitlan, 110 pages, they will also get their 24 hours to make their case. What else can you tell us about Trump's legal strategy to stay president?

KAITLAN COLLINS, CNN WHITE HOUSE CORRESPONDENT: Well, Erin, this is really the first glimpse of what the White House is going to be arguing on the Senate floor this week. And we were told by sources they essentially worked on this all weekend, giving us a little bit of a preview on Saturday in that seven-page filing.

But this is really what it is that you're going to hear from them on the Senate floor. And really first out in this executive summary right at the beginning of this argument, they say that they believe that these articles of impeachment are invalid, that they're not constitutional. And they want the Senate, they make clear, to fast track the President's acquittal.

Now, they argue that these articles of impeachment don't really work because they say that it doesn't actually constitute any kind of a violation of the law for abuse of power and obstruction of Congress. Though they argued the President did not do these things.

Of course, what makes this also interesting is another argument that they make in here, which is going to be interesting to see how the senators are receptive to this is that they say that the President's behavior toward Ukraine was appropriate. The fact that he floated that theory that Ukraine interfered in the election, which his own former Russian advisor said his fictional narrative that she believes is pushed by the Russians.

And also, of course, asking about the Biden-Burisma investigation, they say that it was perfectly OK for the President to make that ask of the Ukrainian President. So it'll be interesting to see how these Republican senators, especially those more moderate ones respond to that because a lot of them have privately acknowledged they do not like the President's conduct on this.

So if that makes its way into the argument that you're seeing play out during these 24 hours that they're going to have to present their argument, it'll be really notable.

Now, the President did meet with his legal team today. He just left Washington. He's on his way to Switzerland. He is going to land just a few hours, Erin, before the Senate trial gets underway. So it'll be interesting to see how the President weighs being overseas, meeting with world leaders while also wanting to keep an eye on what's happening as this trial is formally getting kicked off.

BURNETT: All right. Kaitlan, thank you very much and everyone is back with me.

So Phil, team Trump's response was that even if the President is guilty of everything he is accused of and that the evidence has thus far shown him to have done, it does not approach the constitutional threshold for removing him. So sort of they're saying forget him in his perfect call. OK, fine, it was far from perfect, but who cares that it's not actually breaking a law.

[19:30:05]

And the Democrats are saying that's a chilling assertion and dead wrong.

So this is -- this is where we are. I mean, this is the battle lines have now been drawn, Phil.

PHIL MATTINGLY, CNN CONGRESSIONAL CORRESPONDENT: Yes, and I think what's most interesting, look, Erin, in talking to Republican senators over the course of the last couple of weeks, they have been fascinated to see how the White House was going to deploy their defense. I had a number who were wondering if this was going to cue more close to the president's Twitter account or what you saw from some of his Republican defenders during the House impeachment inquiry, or whether it would be a very kind of legalese filing at least in the initial brief.

And I think the value of the 110-page brief that we saw today is you got the road map of what's coming next. Now, Democrats dismissed it as the equivalent of the 110-page tweet. But I do think that you are going to see what the White House focuses on when it comes to executive authority, what the White House focuses on when it comes to their explanation for why he brought up Vice President Joe Biden's name, why he brought up Hunter Biden. I think that's all laid out in 110 pages.

And one of the primary questions I got from a Republican senator last week was, how are they going to fill 24 hours to defend the president based on what we've seen up to this point?

I think now we have the answer, whether you agree with it or disagree with it, you at least now have in print what we're going to see next week, or at least a window into that road map, Erin.

BURNETT: And, yet, Steve, it does seem that it is -- it's a lot harder for the Democrats, right? You know as Anne was saying, the burden is on them, they have to make the point, they have to produce all the evidence. Now, it seems, you know, questions what can be included and what can't and all the president's team has to do is essentially respond with, well, we don't think he technically broke the law, or, you know, one of their other two or three arguments. But there's a lot more time required it would seem by the Democrats.

STEVE INSKEEP, CO-HOST, NPR'S "MORNING EDITION": That would be the case. They have a lot of facts and evidence they want to present, that they want to get in here. The president, of course, is making a fundamentally political or rhetorical argument. The White House is arguing that this process is illegitimate, that the president hasn't been accused of a specific crime, and they make what scholars are calling a rather novel interpretation of the Constitution, saying that the president has to be accused of a particular crime.

I think that even we as layman could look at the Constitution and note that the House gets to decide the parameters here. The president doesn't get to decide the parameters under which he's put on trial. The House decided that, and they impeach him. And now, the question before the Senate is guilt or innocence.

Nevertheless, senators have the option to decide that this doesn't rise to the level they want to remove the president from office and they absolutely have the option to follow the politics here and except for a small handful of senators, it seems very clear that the politics here is in favor of acquittal for them.

BURNETT: It certainly does.

I mean -- and, Joe, you know, you got the legal team which as, you know, Phil was saying, they've been meeting, OK?

JOE LOCKHART, CNN POLITICAL COMMENTATOR: Right.

BURNETT: OK, Alan Dershowitz, whether he's on or off, he's trying to say he's a liberal Democrat, you know, he doesn't like Trump but yet he's still defending him, and this is all very confusing.

However, what's not confusing is the arguments Alan Dershowitz made in 1988. You know, he's saying trying to say Trump can only be impeached for committing a crime, right? And whatever we define crime, high crime and misdemeanor, but a legal crime.

Unfortunately, this is what he said in August of 1998. This is Alan Dershowitz.

LOCKHART: Yes.

(BEGIN VIDEO CLIP)

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

(END VIDEO CLIP)

BURNETT: OK. So, there's that haunting comment and then, that's not the only one. Here's another.

(BEGIN VIDEO CLIP)

DERSHOWITZ: When the president goes in for surgery, he's like anyone else. When the president is facing this kind of investigation, he has to be treated like everyone else. The president is not above the law. He's not below the law. You can't hold him to a different standard.

Presidents are not above the law.

(END VIDEO CLIP)

LOCKHART: Well, you know, I think we may see that on the Senate floor that's in the public record now you put it on TV. He's not the only one. There's the same things with --

BURNETT: I'm sorry to interrupt you, Joe. I just want to look -- continue in a moment. This is minority leader, Senator Schumer, speaking.

SEN. CHUCK SCHUMER (D-NY): OK, ready? It is -- it is certain -- it's now certain that Leader McConnell is going along with President Trump's cover-up hook, line and sinker.

When you look at his resolution it's no wonder he delayed it until the last minute. He didn't want people to study it or know about it. After reading McConnell's resolution, it's clear McConnell is hell-bent on making it much more difficult to get witnesses and documents and intent on rushing the trial through. On something as important and serious as impeachment, Senator McConnell's resolution is a national disgrace.

[19:35:04]

Senator McConnell repeatedly promised the senators, the public, the press, that his rules for the trial would be the same as the rules in the Clinton impeachment. Nothing could be further from the truth. Senator McConnell's rules dramatically depart from the Clinton precedent in ways that are designed to prevent the Senate and the American people from learning the truth about President Trump's actions that warranted his impeachment.

Let's go over four of them.

The McConnell rules don't even allow for the simple basic step of admitting the House record into evidence at the trial. Under the McConnell resolution, he's saying that he doesn't want to hear any of the existing evidence and he doesn't want any new evidence. A trial where there's no evidence, no existing record, and no new evidence, no witnesses, no documents, that's not a trial at all, it's a cover-up and the American people will see it for exactly what it is.

Furthermore, Senator McConnell's resolutions states the key facts be delivered in the wee hours of the night, simply because he doesn't want the American people to hear them. Plain and simple.

And there's a provision that would even allow the limited 24-hours he's allowed over two days to be cut off.

Third, Leader McConnell -- third, Leader McConnell's resolution makes it much harder to get witnesses and documents after the arguments are heard. We will be able to force votes on witnesses and documents before his resolution is adopted tomorrow. And we will. But, they've all said so many of the senators, let's hear the arguments and then we'll decide on witnesses and documents. McConnell throws language in that makes that much harder to happen.

And, finally, the Clinton resolution allowed for dismissal only after arguments were heard. This resolution allows for dismissal at any time.

So this resolution is -- is totally departing from the Clinton resolution in significant ways, despite what Leader McConnell promised. And in the ways it departs, the evidence is less available, the evidence is given in the wee hours of the morning, and may never be produced at all.

It is a cover-up. It is a national disgrace. Impeachment is one of the few powers that Congress has when a president overreaches. To so limit impeachment and often -- and make it so less serious, is so, so wrong. We'll fight that tooth and nail.

We hope that four brave Republicans will resist McConnell's cover-up, will resist McConnell just going along with President Trump who everyone knows doesn't want the truth to be heard, and that they will reverse this. The fate of honor in the republic is on their shoulders.

I'll take just a few questions because I got to catch a train.

REPORTER: Where do you go from here --

(INAUDIBLE)

SCHUMER: We -- well, tomorrow, before the resolution is adopted, we will be able to introduce amendments and we will introduce a whole series of amendments for witnesses, for documents and other ways to straighten out what McConnell has done and make it a real trial with evidence, witnesses and in ways that the American people can hear it.

REPORTER: (INAUDIBLE) do you think this will make it harder for (INAUDIBLE)

SCHUMER: I don't think -- look, what makes it hard for Republicans to jump ship is their fear of President Trump. Many of them know how wrong President Trump's actions were, and many of them will see this and see it for what it is.

McConnell promised over and over again, senators repeated over and over again, we're going to follow the Clinton model. This departs from the Clinton model in many very significant and very important ways in an effort to cover up.

REPORTER: Where will you be tomorrow at this time?

SCHUMER: Tomorrow at this time, we will be debating witnesses and documents on the floor of the Senate and the ability to allow them to be produced.

Thank you, everybody.

REPORTER: Thank you, Senator.

BURNETT: OK, you just heard the Senate Minority Leader speaking there.

[19:40:03]

Anne, let me just give you a chance here first.

When he says this is not a trial but a cover-up that's what we're going to start hearing more from Democrats.

But as you go through this, is this -- is there anything in this that this resolution from Mitch McConnell which makes you think he is looking for fairness, or transparency, or is cover-up more of a fair description?

ANNE MILGRAM, CNN LEGAL ANALYST: You know, look, Steve just said it really well, which is that the House gets to decide what to impeach on and the Senate gets to decide whether or not to remove the president. What is surprising to me, though, is that I think Americans want fundamental fairness, that they expect there to be a faring of facts and evidence, even to say that the evidence from the House can't automatically come in, it's really unprecedented in my view.

It is -- to what Schumer's point, it is -- there's no evidence that they're allowing automatically to come in that's already been set. They're not allowing new witnesses and new documents without a vote down the road. They're really trying to say, what they're saying in the trial brief the president can do anything. He has full authority, that, you know it's the equivalent of Mick Mulvaney saying, get over it. That the president has this power and they're going to make this so narrow it's almost impossible to argue the facts and evidence against the president.

BURNETT: And, John Dean, this is also -- the other issue here, as Senator Schumer is raising here the issue of witnesses. Even if witnesses are voted on, first of all, they're voted as a clump, and then you would debate individually. And it's a roll call vote, that's what's laid out here. That then the question they would have to be deposed first, which is fine, you want to have that.

JOHN DEAN, CNN CONTRIBUTOR: Which is normal.

BURNETT: Who is going to do that deposing when none of that is laid out here?

DEAN: No, it's not. But that would be the natural course to know what the witness is going to say before you bring them into the trial.

BURNETT: Yes.

DEAN: But I'm wondering if he's setting out markers out where he knows he might have to give a little bit to hold his base and this is -- he went to the outer limit to start by cutting off the record and he'll come back from that when they start taking the amendments tomorrow.

BURNETT: All right. All of you stay with me because, obviously, we have a lot more to discuss here, as we did just have the formal response from the minority.

Next, President Trump is now on an airplane on his way to Davos, Switzerland, to meet with world leaders at the World Economic Forum. He's going to be landing just hours before his impeachment trial formally begins.

Plus, Bernie Sanders going after Joe Biden's long record on race relations and Biden's firing back. Will this in-fighting, though, between two of the front runners back fire? Could turn Democratic voters off?

(COMMERCIAL BREAK)

[19:46:28]

BURNETT: Breaking news, President Trump has just left the country on the eve of his impeachment trial in the Senate en route to Davos, Switzerland, for the annual meeting of the World Economic Forum. Other world leaders, bank CEOs, think-tanks.

Trump's departure hours before the Senate does begin with all of this contentious discussion we believe about this resolution and his trial.

The president, though, uncharacteristically quiet as he left the White House -- no comments, no hoax, no witch hunt, none of his usual terminology.

Everyone is back with me.

Steve, should -- you know, I know the president -- he doesn't actually really like to do these kind of things. Davos, though, he did kind of like the welcome he got one time, even though it's an organization which sort of goes against his ethos in terms of globalization.

Should he have cancelled? Did he want to cancel? Did he have any choice?

INSKEEP: I'm sure he had a choice. I don't know why he would, because the politics for this would seem to work for him. This is a president who operates on the politics of grievance, whatever is happening around him or to him or to other people that he supports is unfair.

And this does create an opportunity for the White House to say, listen, here's the president overseas, representing the country overseas, and here you are putting him on trial back at home. The president also let's be clear has indicated that this entire process is completely illegitimate and he's going to be acquitted. So, why would he stay?

BURNETT: I mean, Joe, that's the argument. Does this play to his favor?

LOCKHART: It should in theory, it probably won't in practice, because as we have seen many times before, he goes overseas, has these big moments and then spoils them by tweeting something, attacking someone, whether it'd be someone in impeachment or another. He's undermined his political position, think, from the beginning.

I think the thing that strikes me the most about the last couple of days with the White House is they are counting on people not paying attention. Today, they simultaneously argued two separate constitutional theories that are opposite. The president saying the Second Amendment, it's a strict, you now, constructionist argument that Framers knew what they're saying when they put the Second Amendment, and their lawyers go up to the Hill to the say the Framers didn't know what America would be like 200 years later. So, it's the exact argument.

They argued the president can't be indicted for a crime, they then argued in court they couldn't be investigating for a crime. And now they're arguing that, well, you know, given this other stuff, the president can't be removed unless he's committed a crime. Well, how would we know whether he's committed a crime if he's never gone to court or he can't be investigated?

BURNETT: They keep moving the --

LOCKHART: So, it's the circular logic that you would think if people were paying attention would collapse onto itself, they're counting on us not watching and not understanding.

BURNETT: Which, Anne, to your point, which you think is significant, these 12 hours, on one sense you can play to primetime, you can do that, on the other hand, you don't get day after day --

MILGRAM: To make your case. Yes.

And look, at the end of the day, I think that the House managers need to be able to make their case. And I think if it looks like they haven't given that chance, that the American public will have a problem or at least they should have a problem. And look, to Joe's point, there are a lot of argue pts here that

people really need to understand and see for what they are, which is how broad is the presidency.

BURNETT: All right. Thank you all very much. I appreciate it.

Tonight, and next, Joe Biden getting personal, taking on Bernie Sanders and Elizabeth Warren.

(COMMERCIAL BREAK)

[19:53:55]

BURNETT: Tonight marks two weeks until the Iowa caucuses. Bernie Sanders and Elizabeth Warren talking and smiling today, seeming to bury the hatchet after that very nasty public spat about whether Sanders told Warren a woman couldn't be elected. And then there was whole accusing of being a liar on national television. Sanders denied he ever said the part about the women.

But now, both have decided to turn their fire on Joe Biden.

Jeff Zeleny is OUTFRONT.

(BEGIN VIDEOTAPE)

JEFF ZELENY, CNN SENIOR WASHINGTON CORRESPONDENT (voice-over): The leading Democratic presidential candidates marched arm in arm today in South Carolina, paying tribute to the life and legacy of Martin Luther King Jr.

But signs of unity are increasingly fleeting on the campaign trail, with the Iowa caucuses two weeks from tonight. A circular firing squad among leading Democratic rivals is unfolding on notable fronts with urgency as candidates sharpen their distinctions and voters make their decisions.

Bernie Sanders is taking aim at Joe Biden on Social Security, trying to soften support among his base of older voters by suggesting Biden was eager to cut payments to retirees.

JOE BIDEN (D), PRESIDENTIAL CANDIDATE: There's a little doctored video going around put out by one of Bernie's people.

[19:55:03]

SEN. BERNIE SANDERS (I-VT), PRESIDENTIAL CANDIDATE: It's not doctored. It is Joe's position on Social Security over the years versus my position on Social Security over the years.

ZELENY: The issue was a video circulated by the Sanders campaign that shows Biden praising former House Speaker Paul Ryan for wanting to cut Social Security. A full viewing of the tape shows Biden was actually mocking Ryan.

At the same time, the Sanders campaign is questioning Biden's long record on race relations, hoping to erode some of Biden's strength among African-American voters.

Biden firing back, bluntly questioning the electability of Sanders and Elizabeth Warren during a weekend interview with a state newspaper in South Carolina.

BIDEN: I'm just asking a rhetorical question, Bernie is at the top of the ticket in North -- in South Carolina, or Warren is the top of the ticket, how many Democrats down the line you think are going to win?

ZELENY: While natural at this late stage of the campaign, the finger- pointing and flat out attacks are fraught with peril, as some Democratic voters say they are turned off by the infighting.

Pete Buttigieg and Amy Klobuchar who have quarreled about experience are now largely staying above the fray. The sharpest face to face exchange yet between Warren and Sanders at least week's debate still hangs over the race.

SEN. ELIZABETH WARREN (D-MA), PRESIDENTIAL CANDIDATE: I think you called me a liar on national TV.

SANDERS: Well, let's not do it right now.

ZELENY: The two candidates were all smiles today outside the South Carolina statehouse, but have yet to address the underlying issue of Warren's assertion that Sanders told her a woman couldn't win the presidency, a claim he still denies.

His weekend explanation did little to clear the air.

SANDERS: But in this country, anyone who doesn't understand that there is a lot of bigotry, there's a lot of sexism.

ZELENY: In the final stretch of the opening chapter of the too close to call race, Tom Steyer, along shot contender, offered this lesson to his rivals.

TOM STEYER (D), PRESIDENTIAL CANDIDATE: This is not the time for the people who are running for president to bicker. This is a time where we have a job. Beat Mr. Trump.

(END VIDEOTAPE)

ZELENY: So, Tom Steyer obviously trying to go above the fray there. But, Erin, one of the reasons candidates are drawing these distinctions is because of the urgency of the moment. Yes, there is a risk for campaigning negatively, but there's also a risk for not campaigning and that is what is facing Bernie Sanders, Elizabeth Warren and Amy Klobuchar. These new Senate rules for impeachment means that they will not be able to fly to Iowa as they planned. Two weeks from tonight, the Iowa caucuses, Erin.

BURNETT: It's incredible. All right. Thank you very much, Jeff.

And we'll be right back.

(COMMERCIAL BREAK)

BURNETT: And we're following the breaking news. Mitch McConnell putting out his plan for President Trump's impeachment trial just hours before the trial begins.

Our coverage continues now with Anderson.