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Senate Impeachment Trial Against Trump Begins Tomorrow. Aired 6-6:30a ET

Aired January 20, 2020 - 06:00   ET



LAURA JARRETT, CNN ANCHOR: Rules for the president's impeachment trial still under lock and key just a day before the trial gets under way.


SEN. CHUCK SCHUMER (D-NY): We will force votes on witnesses and documents, and it will be up to four Republicans to side with the Constitution.

SEN. LISA MURKOWSKI (R-AK): I don't want this proceeding to be a circus. I don't want it to be viewed as a mockery or a kangaroo court.

SEN. JOHN CORNYN (R-TX): This seems to be more of a political or policy differences than actually a high crime and misdemeanor.

SEN. LINDSEY GRAHAM (R-SC): His mood is to go the State of the Union with this behind him.

REP. JERRY NADLER (D-NY): There is ample evidence, overwhelming evidence, and any jury would convict him in three minutes flat.


ANNOUNCER: This is NEW DAY with Alisyn Camerota and John Berman.

JOHN BERMAN, CNN ANCHOR: Welcome to our viewers in the United States and all around the world. This is NEW DAY. It's Monday, January 20, at 6 a.m. here in New York. Alisyn is off. Erica Hill joins me this morning.

ERICA HILL, CNN ANCHOR: Always a pleasure.

BERMAN: Great to have you here.

The impeachment trial for President Trump begins in earnest tomorrow. And this morning, no one has any idea how the heck the thing will actually be run.

So far, the Senate Majority Leader, Mitch McConnell, has not provided the public, let alone the full Senate, with any information about the rules he intends to propose. We do know he does not want to guarantee any witnesses. And multiple sources tell CNN that he is weighing limiting the number of days for opening arguments.

Overnight, Senate Minority Leader Chuck Schumer warned he might use procedural maneuvers to try to force votes on witnesses early.

It is worth noting that exactly three years ago today, the president was inaugurated, swearing to protect and defend the Constitution president at. At issue before the Senate now, whether he has broken that promise.

HILL: The White House has until noon today to file a legal brief outlining why President Trump should be acquitted. Although we have already seen the beginning of that defense.

The president's legal team arguing he should never have been impeached in the first place. Because his conduct over Ukraine is not criminal. Democrats rejecting that position, arguing the president is a threat to national security.

We begin this pivotal week in Washington with CNN's Lauren Fox, who is live on Capitol Hill.

Lauren, good morning.


We are just one day away from the third impeachment trial in U.S. history. And we're starting to get some more details about what the arguments are going to be on each side.

Of course, the biggest question looming, whether or not there are going to be witnesses as part of this trial.


FOX (voice-over): With the start of President Trump's impeachment trial just one day away, the Senate's majority and minority leaders are still battling over the rules.

SCHUMER: Why is McConnell being so secretive about his proposal? He's afraid that more damning evidence will come to light.

FOX: House impeachment managers amplifying the Democrats' case to include new witnesses and evidence.

NADLER: This whole controversy about whether there should be witnesses is really a question of does the Senate want to have a fair trial, or are they part of the cover-up of the president?

FOX: But most Republicans seem focused on acquitting the president quickly.

CORNYN: This is the first time in the history where a president has been impeached for a non-crime for events that never occurred. This is really unique. And I think every senator is going to take this very seriously.

FOX: Trump ally Senator Lindsey Graham saying that's what the president wants, too.

GRAHAM: His mood is to go to the State of the Union with this behind him and talk about what he wants to do for the next -- rest of 2020 and what he wants to do for the next four years.

FOX: Still, moderate Republicans like Senator Lisa Murkowski are waiting for proceedings to begin to make a decision, emphasizing her desire for a fair trial.

MURKOWSKI: I don't want this proceeding to -- to be a circus. I don't want it to be viewed as a mockery or a kangaroo court.

FOX: President Trump's legal team filing a formal response to the Senate summons, giving the very first glimpse into their defense strategy. They call the House's articles of impeachment, quote, "brazen and unlawful," an example of, quote, "poisonous partisanship."

Trump also recruiting high-profile defense lawyer Alan Dershowitz to help build his case.

ALAN DERSHOWITZ, ATTORNEY: I will be advocating against impeachment of this president, based on the constitutional criteria in the Constitution.

FOX: House Democrats once again highlighting why they believe Trump should ultimately be removed from office, filing their 111-page trial brief calling, quote, "President Trump's conduct the framers' worst nightmare."

REP. ADAM SCHIFF (D-CA): The mere idea of this would have appalled the founders, who were worried about exactly that kind of solicitation of foreign interference in an election for a personal benefit. The danger it poses to national security. That goes to the very heart of what the framers intended to be impeachable.


FOX: And this all gets started tomorrow at 1 p.m. Once it begins, senators will be forced not to speak on the Senate floor. They also aren't going to have any electronic devices allowed. The biggest question, when witnesses or if witnesses will be allowed -- John.

BERMAN: Laura Fox for us on Capitol Hill.

Something begins tomorrow at 1 p.m., but what exactly? We frankly do not know. Because the Senate majority leader, Mitch McConnell, has not released any details about his proposal for the rules. Why? What is likely to come of this, and how will the Democrats respond? Stick around.



(BEGIN VIDEO CLIP) SCHUMER: Why is McConnell being so secretive about his proposal? Well, there are two obvious answers. One, he wants to rush this thing through so quickly, because he's afraid of what the American people might hear. There's a second reason. He's afraid that more damning evidence will come to light.


BERMAN: That was Senate Minority Leader Chuck Schumer overnight, calling for the majority leader, Mitch McConnell, to come forward with what the rules will be for this impeachment trial that begins in earnest tomorrow. We don't know how Mitch McConnell wants to carry this out. So why? What is his plan?

Joining us now, CNN legal analyst Elie Honig; and CNN political analyst Seung Min Kim. She is a White House reporter for "The Washington Post."

Seung Min, you have a terrific article today in "The Post" about Mitch McConnell and the White House. What does McConnell want here? What is the most likely outcome when he does release the process to go forward?

SEUNG MIN KIM, CNN POLITICAL ANALYST: Well, remember that Mitch McConnell, what he really wants to do is minimize the political pain. Whether it's for -- whether it's for Senate Republicans who are fighting in tough battles this year in their re-election bids, for the president, for the broader Republican Party.


So what we're going to see -- and you're right, we have not seen the draft of this resolution that we're going to be expected -- or that the Senate is going to expect to be voted on tomorrow. We're going to -- we're likely going to see parameters that are similar to what we saw for President Bill Clinton more than two decades ago. But tweaked in certain ways that perhaps -- that are going to be different.

Now, what -- what sources have told CNN and what sources have also told me is that McConnell's going to try and shrink the number of days for opening arguments from both sides. Because, remember back in the Clinton days, we had 24 hours each for each side to argue their -- argue their case. Now, neither side took all of their -- took all of their hours.

But this time around, McConnell's going to try to squeeze that in perhaps two days. And think about what that does. It is the same number of hours, clearly, but -- but it also just minimizes the number of days that there could be bad headlines for the president in this impeachment trial.

HILL: It also -- you know, squeezing them into two days, so you know, two 12-hour -- really, two-hour-plus days, because there are going to be a break or two. And is that enough time? As Seung Min points out, full 24 wasn't used. So is there any reason for Democrats to push back on that in terms of timing? ELIE HONIG, CNN LEGAL ANALYST: I would have two problems with that

proposal. First of all, it does -- it's just not enough time to allow facts to develop, right? I mean, we've seen the steady drum beat over the last several weeks of new evidence coming out. So I think if I'm in the Democrats' shoes here, I want to string this out. I want to allow more time for more John Bolton, Lev-Parnas-type revelations to come to the floor.

But the other thing is, a 12-hour trial day is really brutal on whoever your audience is. I mean, I tried cases to juries. A six-, seven-hour trial day is exhausting. Attention spans are only so long. There is no way any normal human being is going to be able to follow everything that happened in 12 hours of testimony and argument. That may be by design.

BERMAN: What are you saying about these hundred senators sitting in that chamber?

HONIG: I'm saying they're nothing more or less than ordinary humans.

BERMAN: Seung Min, one of those people sitting in that chamber will be Lisa Murkowski, the senator, Republican senator from Alaska, who is considered to be one of the so-called moderates, one of the four possible votes, ultimately, for witnesses. So what she thinks about this trial matters. And this is what she now says she wants to see or not see.

Oh, it's a full screen. I will read this to you aloud.

"I don't know what more we need until I have been given the base case. We will have the opportunity to say yes or no, and if we say yes, the floor is open."

She has also said out loud that she doesn't want to see a circus. Keeping her happy, I imagine, is important for Mitch McConnell.

KIM: Keeping her happy. Keeping Susan Collins happy, Mitt Romney, and Lamar Alexander happy is going to be one of the top priorities for Mitch McConnell. And one of those -- I mean, Susan Collins has already indicated in a statement last week that she does seem, quote, "likely" to vote for just generically having witnesses down the line.

We do know, going back to the McConnell resolution, while again, we haven't seen the text publicly yet, we do expect there to be a provision that allows for some sort of a vote to have witnesses.

After the opening arguments and the questions are done, now if there are four Republicans to side with the 47 Democrats to have witnesses, that could create a lot of chaos on the Senate floor. Because Republicans will want their witnesses. Democrats will want their witnesses.

So that's why the couple of weeks are going to be really critical for, particularly, the White House to sufficiently make their case to those swing senators and perhaps persuade them that maybe they don't need to hear any more after the days and the hours of opening arguments and questioning.

HILL: Senators, or rather, witnesses are key, of course, to Democrats in terms of the way that they're setting up this case. And to their point, they believe that witnesses will ultimately prove that this is a fair trial. Without them, they say it's not.

What's fascinating is what we heard from Sherrod Brown over the weekend. I just want to play that quickly.

BERMAN: I can read it aloud.

HILL: Yes. We -- we can -- Here we go.


SEN. SHERROD BROWN (D-OH): We want to hear from witnesses. I -- I don't know what Hunter Biden has to do with the phone call --

BRIANNA KEILAR, CNN ANCHOR: But you're fine hearing from him?

BROWN: I'm -- I'm fine with hearing -- I mean, I understand -- yes, I'm not a lawyer. I understand both sides get to call witnesses. I'm not sure that a lot of Republicans think -- I mean, I think many Republicans think that's a distraction.


HILL: How prepared are you -- do you think are Democrats if, in fact, Hunter Biden ends up being part of a package that they say yes to?

HONIG: Well, it's an interesting determination. If this was regular court, there would have to be a relevancy determination for any witness. It's not just we call one witness. You get to call one witness. It's not a prisoner exchange, so to speak.

Any judge has to make a relevancy determination. And it'll be interesting to see what Chief Justice Roberts does in this situation.

That said, this is politics, and there could be a deal here, where it could be two for two, three for three. Democrats have a really interesting decision. Are they willing to agree to Hunter Biden or other people who may or may not be relevant in exchange for getting direct, first-hand witnesses like John Bolton?

HILL: We'll be watching for it all.

BERMAN: Elie, Seung Min, stand by.

HILL: President Trump's team arguing that his impeachment is invalid, since he has not been charged with a crime. So just ahead, we're going to tackle that argument. How well does it hold up in a trial?

BERMAN: How Constitutional is it? Not very.


DERSHOWITZ: I will be paraphrasing the successful argument made by Justice Benjamin Curtis in the trial of Andrew Johnson back in the 1860s, where he argued that the framers intended for impeachable conduct only to be criminal-like conduct or conduct that is prohibited by the criminal law.



HILL: The White House has until noon today no file a legal brief outlining why they believe President Trump should be acquitted. But you're hearing a glimpse of that defense.

Back with us now, Elie Honig and Seung Min Kim. And it's fascinating, too, to listen to Alan Dershowitz make that case, because we know that that's not how he's felt all along. Because back in 1998, he was also talking about how it didn't have to be a crime. Maybe we should just play that, just to remind everybody.


DERSHOWITZ: It 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.


HILL: A little bit more Alexander Hamilton there that we were hearing back in 1998. It's fascinating to listen to that change in thought.

HONIG: Yes. Lawyers sometimes do that. Alan Dershowitz sometimes does that. I think he was right back in 1998. I don't think he's right now in 2020.

I think what they're trying to do with this argument is a couple of things. First of all, I think what Trump's lawyers is aiming for here is not just acquittal. They're very likely to be acquitted. It's very unlikely 67 senators vote to convict.

I think what he's going for is an argument that this never happened; I was never validly impeached in the first place. And I think Dershowitz has now been empowered to make that argument.

The other thing I think they're going for is trying to lay the foundation for a very quick dismissal, to say. we don't need to hear from facts. We don't need to hear from any witnesses, because there's a constitutional flaw here. They're wrong, but strategically, I think that's where they're going.

BERMAN: Alan Dershowitz is wrong. Professor Dershowitz, Harvard Law, is wrong about the law and wrong about the history here. Presidents have been impeached and tried for things that are not crimes. Judges have been impeached and tried for things that are not crimes, including drunkenness, by the way.


BERMAN: Which is not a crime. And not only does Alan Dershowitz -- and we just played that disagree with Alan Dershowitz, but so does Alexander Hamilton, who unlike Dershowitz, actually had a seat at the table when they were writing the Constitution.

And this is what he wrote in "The Federalist Papers," No. 65. What are impeachable offenses? He goes, "those offenses which proceed from the misconduct of public men, or, in other words, the abuse or violation of some public trust."

I still don't think this will keep Dershowitz from making this argument on the Senate floor. And I think that some Republicans want to believe it.

KIM: Exactly. And I think you've heard that talking point echoed a lot over the last -- over the course of this process. That there was no underlying crime here. So ergo, the president did nothing wrong here.

But we'll -- and we'll see how much that argument weighs. I mean, obviously, we know the president's allies are not going to be any problem -- won't be any problem for the White House keeping them in line. But again, we go back to those four Republican senators and whether the White House's arguments, whether it's in their initial response to the summons or the legal brief later today. Or their arguments on the floor. How much that satisfies those four Republican senators in the middle.

Because, look, we know there aren't the votes to acquit the president, barring some major, major bombshell in the process. But these four Republican senators can really control whether the process -- whether the rest of the trial becomes really messy and long and convoluted for the White House, and particularly when it comes to that really key question of witnesses down the line.

HILL: And also, in terms of how convoluted it becomes for the public. Because there is this narrative that we're hearing from Alan Dershowitz and you alluded to, Elie, too, that the White House and the president want to put out there. And it goes back to, once again, what you're seeing and hearing is not really happening. The president wants to be able to say, I was not impeached.

So he's trying to take that away, the fact that -- you know, he was. These two articles of impeachment were passed.

The fact that we have these differing narratives coming out also reminds us that the argument that's being put out there is not one attacking the substance, right? Of what these alleged misdeeds are.

HONIG: Right. It allows them to avoid having to take on the president's actual conduct with respect to Ukraine. They can just say, there's something wrong with this. There's a fatal flaw here. There's a legal flaw here. We don't even have to get to the substance.

It's what lawyers call a motion to dismiss. It's the cleanest way to win a case. It's completely meritless here.

But again, I think the president is just looking for a talking point. He's looking for something to throw out there to people who want to say he was never validly impeached in the first place.

BERMAN: Oh, he was impeached. He was impeached.

HONIG: We have it on tape.

BERMAN: We have it on tape. And it's all true.

All right. Seung Min, I want to get your take on another story today. And you'll forgive me for this, but this is the story that people are waking up to this morning. It's on the cover of "The Washington Post" [SIC]. It's Brad Pitt and Jennifer Aniston here. It says --

HILL: That's "The New York Post."

BERMAN: What did I say, "Washington Post"?

HILL: You did.

BERMAN: Why isn't your paper covering this, Seung Min? That's my question here. Jennifer Aniston and Brad Pitt at the S.A.G. Awards last night. They seem to be getting along very well. They're both winners. This is what America wants. This.


HILL: This is what John Berman wants.

BERMAN: I'm not -- look, I am America. When you see this, Seung Min, I want to know your initial feelings?

KIM: There's a lot -- I don't know. I guess a lot of nostalgia there, maybe. I don't know how I feel.

But, look, what -- if those two -- if they are happy -- if what is going on between them is what we -- it looks like, then all the more kudos to them. I don't know.

HILL: There you go. I will --

BERMAN: She's deeply moved.

HILL: She is deeply moved as you were. I would also just reference the fabulous headline on right now, which is, "Let's Not Project Our Feelings onto Brad and Jen."

BERMAN: I have -- Too late? Too late.

HILL: Way too late for John Berman. Also Elie, you're feeling some nostalgia, as well. You were telling us during the break. A little nostalgia for Jen?

HONIG: Yes, listen, I know I'm here as a legal analyst, but let me just say, I'm team Jen. It reminds me -- it reminds me of college when she was on "Friends," and she was just everyone's favorite. So I'm team Jen all the way.

BERMAN: Look, I think the important thing is whatever is going on in this picture, they're both happy.

HILL: As Seung Min said, they're both happy.

BERMAN: They're both happy.

Seung Min Kim, thank you very much for being with us. You may not come back ever again after this, so I appreciate this last visit.

Elie, you too.

HONIG: Thanks.

BERMAN: All right.

Officials in Virginia say they are doing everything they can to prevent the violence that unfolded in Charlottesville from repeating itself in Richmond. We're going to have the latest on violent threats police say they are monitoring ahead of a huge gun rights rally scheduled for today.