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ERIN BURNETT OUTFRONT

House Managers, Trump Legal Team Clash Over Trial Rules; Sen. Chris Murphy (D-CT) is Interviewed About the Senate Impeachment Trial. Aired 7-8p ET

Aired January 21, 2020 - 19:00   ET

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


[19:00:00]

Sandy was given no reason other than that Mr. Duffey wanted to be, quote, "more involved in daily operations," end quote.

During his deposition, Sandy confirmed that he was removed from the funding approval process after he had raised concerns to Duffey about whether the hold was legal under the Impoundment Control Act. Needless to say, OMB has refused to turn over any documents or communications involving that decision to replace Mr. Sandy.

Why did Duffey, a political appointee with no relevant experience in this area, take over responsibility for Ukraine funding approval? Was the White House involved in that decision? Was Sandy removed because he had expressed concerns about the legality of the hold?

By August 7th, people in our government were worried. And when people in the government get worried, sometimes what they do is they draft memos. Because when they're concerned about getting caught up in something that doesn't seem right, they don't want to be a part of it.

So on that day, Mark Sandy and other colleagues at OMB drafted and sent a memo about Ukraine military aid to Acting Director Vought. According to Sandy, the memo advocated for the release of the funds. It said that the military aid was consistent with American national security interests, it would help to oppose Russian aggression and it was backed by strong bipartisan support. But President Trump did not lift the hold.

Over the next several weeks, OMB continued to issue funding documents that kept kicking the can down the road, supposedly to allow for more of this, quote, "interagency process," while inserting those footnotes throughout the apportionment document, stating that the delay wouldn't affect the funding.

But here's the really shocking part. There was no interagency process. They made it up. It had ended, months before. They made it up because nobody could say the real reason for the hold.

In total, OMB issued nine of these documents between July 25th and September 10th. Did the White House respond to OMB's concerns and recommendation to release the aid? Did the White House instruct OMB to continue creating a paper trail in an effort to justify the hold? Who knew what and when? OMB documents would shed light on OMB's actions as the president's scheme unraveled.

Did the White House direct OMB to continue issuing the hold? What was OMB told about the president's reasons for releasing the hold? What communications did OMB officials have with the White House around the time of the release? As the president's scheme unraveled, did anyone at OMB connect the dots about the real reason for the hold?

The OMB documents would shed light on all of these questions, and the American people deserve answers.

I remember what it feels like to not have the equipment you need, when you need it. Real people's lives are at stake. That's why this matters. We need this information so we can ensure that this never happens again.

Eventually, this will all come out. We will have answers to these questions. The question now is whether we'll have them in time, and who here will be on the right side of history.

ROBERTS: Mr. Sekulow?

CROW: Mr. Chief Justice, the House managers reserve the balance of our time for an opportunity to respond to the president's argument.

ROBERTS: Thank you.

Mr. Sekulow?

SEKULOW: Thank you, Mr. Chief Justice, members of the Senate.

Manager Crow, you should be happy to know that the aid that was provided to Ukraine, over the course of the president's administration, included lethal weapons. Those were not provided by the previous administration.

[19:05:00]

The suggestion that the Ukraine failed to get any equipment is false. The security assistance (ph) was not for funding Ukraine over the summer of 2019. There was no lack of equipment due to the temporary pause: It was future funding.

The Ukraine -- the deputy minister of defense who oversaw U.S. aid shipments (ph) said the hold came and went so quickly, they did not notice any change. Under Secretary of State David Hale explained the paused aid was future assistance, not to keep the army going now.

So the made-up narrative that security assistance was conditioned on Ukraine taking some action on investigations is further disproved by the straightforward fact that the aid was delivered on September 11th, 2019, without Ukraine taking any action on any investigation.

It's interesting to note that the Obama administration withheld $585 million of promised aid to Egypt in 2013. But the administration's public message was that the money was not officially on hold, as technically it was not due until September 30th, the end of the fiscal year, so they didn't have to disclose the halt to anyone. Sounds like this may be a practice of a number of administrations.

In fact, to (ph) the president -- this president has been concerned about how aid is being put forward.

So there have been pauses on foreign aid in a variety of contexts. In September of 2019, the administration announced that it was withholding over $100 million in aid to Afghanistan, over concerns about government corruption. In August of 2019, President Trump announced that the administration and Seoul were in talks to substantially increase South Korea's share of the expense of U.S. military support for South Korea.

In June, President Trump caught or paused over $550 million in foreign aid to El Salvador, Honduras and Guatemala because those countries were not fairly sharing the burdens of preventing mass migration to the United States.

This is not the only administration. As I said, President Obama withheld hundreds of millions of dollars of aid to Egypt.

To be clear -- and I want to be clear -- Ambassador Yovanovitch herself testified that our policy actually got stronger under President Trump, largely because, unlike the Obama administration, quote, "this administration made the decision to provide lethal weapons to Ukraine," to help Ukraine fend off Russian aggression.

She testified in a deposition before your various committees that, actually, I felt that in the three years that I was there, partly because of my efforts but also the interagency team and President Trump's decision to provide lethal weapons to Ukraine, that our policy actually got stronger.

Deputy Assistant Secretary Kent -- whose name's come up a couple of times -- agree that Javelins are incredibly effective weapons at stopping armored advance, and the Russians are scared of them.

Ambassador Volker explained that President Trump approved each of the decisions made along the way. And as a result, America's policy towards Ukraine strengthened.

When (ph) we (ph) want to talk about facts, go to your own discover and your own witnesses that you called.

This all supposedly started because of a whistleblower. Where is that whistleblower?

I yield the rest of my time.

ROBERTS: The House managers have 35 minutes remaining.

CROW: Mr. Chief Justice, at war, time matters. Minutes and hours can seem like years. So the idea that, well, it made it there eventually, just doesn't work.

And, yes, the aid was provided. It was provided by Congress, this Senate and the House of Representatives, with the president's signature. The Congress is the one that sends the aid.

And millions of dollars of this aid would have been lost because of the delay,

[19:10:00]

had Congress not actually passed another law that extended that deadline to allow the funds to be spent. Let me repeat that. The delay had jeopardized the expenditure of the money to such an extent that Congress had to pass another law to extend the deadline so that the money and the equipment got to the people on the front lines.

Need I also reiterate, this supposed interagency process, the concerns that the president and his counsel continue to raise about corruption and making sure that the process went right, there was no interagency process. The whole thing was made up. It was a phantom. There was a delay, and delays matter.

Mr. Chief Justice, I reserve the balance of my time for Mr. Schiff.

ROBERTS: Mr. Schiff?

SCHIFF: Thank you, Mr. Chief Justice.

Just a few additional points I'd like to make on this amendment, and on my colleague's arguments.

First of all, Mr. Sekulow makes the point that the aid ultimately got released, they ultimately got the money, right? Yes. They got the money after the president got caught, after the president was forced to relieve the hold on the aid, after he got caught, yes.

But even then, even then, they'd held onto the aid so long, that it took a subsequent act of Congress to make sure it could all go out the door.

So, what, is the president supposed to get credit for that, that we had to intervene because he withheld the aid so long? And that's the only reason Ukraine got all of the aid that we'd approved in the first place?

My colleagues have glossed over the fact that what they did was illegal, that the GAO, an independent watchdog agency, found that that hold was illegal. So it not only violated the law, it not only took an act of Congress to make sure they ultimately got the aid. This is -- this is supposed to be the defense to why you shouldn't see the documents, is -- is that what we're to believe?

Now, counsel also says, well, you know, he's not the first president to withhold aid. And that's true. After all, counsel says, well, President Obama withheld aid to Egypt. Yes, at the urging of members of Congress. Senators McCain and Graham urged that that aid be withheld.

And why? Because there was a revolution in Egypt, after it was appropriated. That wasn't something that was hidden from Congress, that was a pretty darn good reason to think, do we still want to give aid to this government after this revolution.

We're not saying that aid has never been withheld, that's absurd. But I would hope and expect, this is the first time aid has been withheld by a president of the United States to coerce an ally at war to help him cheat in the next election. I think that's a first. But what we do here may determine whether it's the last.

And one other thing about this pause in aid, right? The argument, well, no harm, no foul. OK? He got caught, they got the aid, what's the big deal?

Well, as we heard during the trial, it's not just the aid. I mean, the aid is obviously the most important thing. As Mr. Crow mentioned, you know without it, you can't defend yourself. And we'll have testimony about just what kind of military aid the president was withholding.

But we also had testimony that it was the fact of the aid itself that was so important to Ukraine, the fact that the United States had Ukraine's back. And why? Because this new president of Ukraine, this new untested former comedian, president of Ukraine, at war with Russia, was going to be going into a negotiation with Vladimir Putin, with an eye to ending that conflict. And whether he went into that negotiation from a position of strength or a position of weakness would depend on whether we had his back.

[19:15:00]

And so when the Ukrainians learned -- and the Russians learned -- that the president of the United States did not have his back, was withholding this aid, what message do you think that sent to Vladimir Putin? What message do you think is sent to Vladimir Putin when Donald Trump wouldn't let Volodymyr Zelensky, our ally, in the door of the White House but would let the Russian foreign minister? What message does that send?

So it's not just the aid, it's not just when the aid is delivered, it's not just if all of the aid is delivered. It's also what message does the freeze send to our friend, and even more importantly to our foe.

And the message it sent was a disaster. Was a disaster. Now you might ask yourself because counselor (ph) said hey, President Trump has given lethal weapons to Ukraine. You might ask yourself if the president was so concerned about corruption, why did he do that in 2017 and why did he do that in 2018.

Why was it only 2019 that there was a problem. Was there no corruption in Ukraine in 2017. Was there no corruption in Ukraine in 2018. No, Ukraine has always battled corruption. It wasn't the president's or (ph) lack of corruption in one year to another.

It was the presents of Joe Biden as a potential candidate for president. That was the key change in 2019. That made all the difference. Let's (ph) get -- gets (ph) back to one of the key moments in this saga. You know a lot of you are attorneys, you're probably much better attorneys than I am and I'm sure you had the experience in cases you tried where there was some (inaudible) some conversation, some document; it may not have been the most important on its face but it -- it told you something about the case that was much larger than that conversation.

For me, one of those conversations was not on July 25th between President Trump and President Zelensky but on July 26th, the very next day. Now you may have watched some of the House proceedings or you may haven't and people watching may have seen it, maybe they didn't but there's this scene in a Ukrainian restaurant, restaurant in Kiev, with Gordon Sondland.

Now bear in mind, Gordon Sondland who said there was absolutely a quid pro quo and two plus two equals four. This was not some never Trumper. This is a million dollar donor to the Trump inauguration. OK.

If there's a biased there it's clear a $1 million biased in favor of this president, not against him. So there's a scene in Kiev in this restaurant and Sondland has a cell phone and he's sitting with David Holmes who is a career diplomat -- U.S. diplomat in the Ukraine embassy.

And Gordon Sondland takes out his phone and he calls the White House. Gordon Sondland holding for the White House. Gordon Sondland holding for the president. And it takes awhile to be connected but he's connected to the president. That's pretty impressive right.

This isn't some guy with no relationship to the president. The president may say Gordon Sondland, I barely know him or something to that effect, but this is a guy who can pick up a cell phone, he can call the president of the United States from a restaurant in Kiev, and he does.

And the president's voice is so loud that David Holmes, this diplomat can hear it. And what does the president say. Does he say is that reform coming in Lorada (ph). How's the attack on corruption going.

No, he just says is he going to do the investigation. Is Zelensky going to do the investigation. And Sondland says, yes, he'll do anything you want. He loves your ass. This is the extent of the president's interest in Ukraine. And -- and they go on to talk about other things and then they hang up.

And David Holmes turns to the ambassador and says in language, which I will have to modify to remove an expletive, says something along the lines of does the president give a blank about Ukraine.

And Sondland says no, he doesn't give a blank about Ukraine. He only cares about the big stuff like the investigation of the Bidens that Giuliani wants.

[19:20:00]

This is $1 million donor to the Trump inaugural admitting the president doesn't care about Ukraine.

He doesn't care whether they get military dollars to defend themselves. He doesn't care about what position Zelensky goes into in these negotiations with Putin, he doesn't care about that. Isn't that clear.

It's why he didn't care about corruption in 2017 or 2018 and he certainly didn't care about it in 2019. All he cared about was the big stuff that affected him personally like this investigation that he wanted of the Bidens.

So when you ask do you want to see these documents, do you want to know if these documents corroborate Ambassador Sondland, will the documents show as we fully expect they will that the only thing he cared about was the big stuff that effected him.

David Holmes response was well, you know there's some big stuff going on here like a war with Russia. This isn't withholding aid because of a revolution in Egypt. This is withholding aid from a country in which 15,000 people have died fighting the Russians.

And Ambassador Taylor said and others, you know Russia's fighting to remake the map of Europe by dented (ph) military force. If we think that's just about Ukraine's security, we are very deceived. It's about our security.

It's about the tens of thousands of troops that we have in Europe. And if we under cut our own ally, if we give Russia reason to believe we will not have their back, that we'll use Ukraine as a play thing, or worse to get them to help us cheat in an election that will only embolden Putin to do more.

You've said it as often as I have, the only he respects is strength. Do you think that looks like strength of Vladimir Putin? I think that looks like something that Vladimir Putin is only too accustomed to.

And the kind -- that is the kind of corruption that he finds, that he perpetuates in his own regime and he pushes all around the world.

My colleague, Val Demings, made reference to a conversation which I think is one of the other key vignettes in this whole sad saga. And that's a conversation that Ambassador Volker has with Andriy Yermak, one of the top aides to President Zelensky.

And this is conversation when -- in which Ambassador Bolton is -- sorry -- Ambassador Volker is doing exactly what he's supposed to be doing, which is he's -- he's telling Yermak, you know you guys shouldn't really do this investigation of your former President Poroshenko because it would be for a political reason.

You really shouldn't engage in political investigations. And as Representative Deming said, what's the response of Ukrainians, oh you mean like the one you want us to do of the Bidens and the Clintons. Threw it right back in his face.

Ukraine's not oblivious to that hypocrisy. Mr. Sekulow says what are we here for. You know part of strength is not only our support for our allies, is not only our military might, it's what we stand for.

We used to stand for the rule of law. We used to champion the rule of law around the world. Part of the rule of law is of course that no one is above the law. But to be out in Ukraine or anywhere else in the world, championing the rule of law and saying don't engage in political prosecutions and having them throw it right back in our face.

Oh, you mean like the one you want us to do. That's why we're here. That's why we're here. That's why we're here. I yield back.

MCCONNELL: Mr. Chief Justice ...

ROBERTS JR.: The Majority Leader is recognized.

MCCONNELL: I send a motion the desk to table the amendment and ask for the ayes and nays.

ROBERTS JR.: Is there a sufficient second. There is. The Clerk will conduct -- will call the role.

CLERK: Mr. Alexander.

ALEXANDER: Aye.

CLERK: Ms. Baldwin

BALDWIN: No.

CLERK: Mr. Barrasso.

ERIN BURNETT, CNN HOST: All right. This is a roll call vote. You're watching the impeachment trial of President Trump. The senators are voting right now this time on Minority Leader Chuck Schumer's third amendment to the rules which will govern the President's trial.

[19:25:03]

So this amendment that you hear them voting for now, the roll call vote would subpoena documents and records from the OMB, the Office of Management and Budget. That's the White House agency which put the hold on aid to Ukraine, so those documents, obviously, would be significant.

This comes in a day where we saw clash after clash just hours before opening arguments. I want to go to Phil Mattingly here as we are watching this vote OUTFRONT live on Capitol Hill.

So Phil, obviously, this is the third amendment. This is a roll call vote as you anticipate. This will go along party lines.

PHIL MATTINGLY, CNN CONGRESSIONAL CORRESPONDENT: Yes. Erin, that's exactly right. We've seen this throughout the course of the last six hours. The House impeachment managers make the case for subpoenaing documents. In one case, it was documents from the White House related to Ukraine several different tranches of documents and other the State Department, this in particularly Office of Management and Budget.

All three of these votes, the first two have already gone down, 53 to 47. All Republicans voting to table or kill the amendment. All Democrats voting to keep it in play. This vote will also follow along those lines.

And one thing to point out here I think, Erin, is obviously Democrats making very clear, making a point they want at the front end of this trial the option of subpoenaing documents and the expectation with some of the folks that are coming, subpoenaing witnesses as well. But another key thing to keep in mind here, every Republican has stuck together behind Senate Majority Leader Mitch McConnell.

There were some issues earlier on in the day that McConnell addressed with his underlying resolution, essentially the organizing resolution, the rules of the road. But since that moment in time, every Republican has stuck together, including the moderate Republicans or Republicans like Senator Mitt Romney who have made clear perhaps later in the trial, they will want to hear from witnesses. They will want to subpoena documents, but at least on these votes they are sticking together.

And Erin, the reason why is this, they believe that later on in the trial, they will have that option. They will have an upper down vote on subpoenaing documents and witnesses. That is what they are waiting for. It will come after the initial arguments and presentations. It will come after Senate question.

But at the front end of the trial, every Republican is sticking together and I will tell you, this is what McConnell wanted. He wanted to keep the party unified for as long as possible, fully knowing that at some point, some Republican senators would break off.

But the big question, Erin, has been can he keep it from being four and his theory of the case as it's been described to me from people who have spoken to him, the longer he can keep all Republicans together, the more likely it is he will be able to not have witnesses later. That's what he's doing at least on this first day, Erin.

BURNETT: All right. And as you point out, just the fact that it's on party lines tonight does not mean it will be later, that this doesn't mean no forever on documents from the OMB. It's important for people to understand that could come up again in about a week after you're through Senate questions and opening statements.

But this today, Phil, so far we're looking at what about six and a half hours. There have been some breaks, but we anticipate there will be several more amendments from Minority Leader Schumer. So where does it go from here tonight?

MATTINGLY: Yes. At this point in time we don't have a firm in time and the reason why is my understanding is Senator Schumer has other amendments. Keep in mind what he has put on the floor up to this point has been to subpoena very specific documents. We know very well the Democrats want very specific witnesses as well. People like former National Security Advisor John Bolton, Acting Chief of Staff Mick Mulvaney, a couple of other administration officials.

The expectation is at some point those votes will come up. The expectation is also at some point those votes will go down once again. But Democrats making a point here in trying to put on the record that they are trying to subpoena witnesses and documents early on in this trial, they are losing those votes, but they're making clear this is their push, this is what they want, trying to amp up that pressure for, as you noted, the votes that will really matter.

At the end of the presentations and the senator questions, there will be another up and down vote. That is where Democrats need for Republicans to join them to keep the trial going to actually bring in witnesses and documents. That's what they want to try and increase pressure on at this point in time, even though they know they will lose every vote that's coming for the remainder of the night.

BURNETT: All right. Phil, stay with me, if you can. Obviously, we anticipate this vote will wrap up in a few moments and we'll see if they go to the next amendment or if there is perhaps a brief break in between Minority Leader Schumer introducing the next amendment.

With me here for the evening, Ryan Goodman, former Special Counsel of the Defense Department, Editor-in-Chief of Just Security, former Federal Prosecutor, Laura Coates, Joe Lockhart, who of course went through this before with President Clinton as his Press Secretary, and Tim Naftali who was the Director of the Nixon Library.

So what do you make of this where we are here right now, Tim? You have these votes. They are going on party lines. We anticipate this will be the same, 53 to table the amendment for documents from the OMB, 47 against completely on party lines and they are done right now. So just, obviously, you have it here, 53 to kill this amendment, it is killed, 47 to ...

TIM NAFTALI, CNN PRESIDENTIAL HISTORIAN: Robert Caro called Lyndon Johnson Master of the Senate and many people who looked at Mitch McConnell the way he handled the Merrick Garland matter, preventing President Obama for his nominee from even being considered by the Senate thought that he had actually managed to figure out how to control the Senate.

[19:30:03]

Today we see a much weaker Mitch McConnell. Mitch McConnell assumed yesterday he had all the votes he needed for his resolution. He made -- he presented a very different resolution -- I mean, partly the same, but he --

BURNETT: They had the 24 hours but there's a big difference between those being 1:00 in the morning or 9:00 at night.

NAFTALI: That means that he could not keep his caucus together because he had to make two hand-written changes. That's huge. For Mitch McConnell, that's not how he does business.

So, this is a very interesting and important day. We see that this is much more fluid than people thought.

BURNETT: So, let's just listen in for one moment as the vote concludes.

G. ROBERTS: The yays are 53, the nays are 47 -- the motion is tabled. The Democratic leader is recognized.

SCHUMER: Mr. Chief Justice, I send an amendment to the desk to issue a subpoena to John Michael "Mick" Mulvaney, and I ask that it be read.

G. ROBERTS: Clerk will report.

CLERK: The Senator from New York, Mr. Schumer proposes an amendment number 1287, at the appropriate place in the resolving clause insert the following -- section notwithstanding any other provision of this resolution pursuant to rules five and six of the rules of procedure and practice in the Senate, when sitting on impeachment trials, the Chief Justice of the United States, through the Secretary of the Senate shall issue a subpoena for the taking of testimony of John Michael "Mick" Mulvaney.

And the Sergeant at Arms is authorized to utilize the services of the Deputy Sergeant at Arms or any other employee of the Senate in serving the subpoena authorized to be issued by this section.

MCCONNELL: Mr. Chief Justice.

G. ROBERTS: The Majority leader is recognized.

MCCONNELL: I now ask for a 30 minute recess before the parties are recognized to debate the Schumer amendment. Following debate time, I will once again move to table the amendment because votes on witnesses and evidence as I've repeatedly said are addressed in the underlying resolution. So I ask the Senate stand in recess at 8 pm.

G. ROBERTS: Without objection, so ordered. Bang the gavel.

(RECESS)

BURNETT: And they are now in recess until 8:00 when they will consider that amendment, the testimony of Mick Mulvaney. And, of course, we anticipate there will be more amendments after that.

So, Joe, you have now this next one. This is the fourth amendment proposed by Senator Schumer. But the big question here, is how do we view this? Do we view this as a caucus, which is in line, Republicans all voting in line as they just did there on Office of Management and Budget documents, every one single of them, or Republican caucus that would not get behind Senator McConnell's resolution on how to conduct this trial and demanded changes, like documents the House had automatically being submitted to the Senate?

JOE LOCKHART, CNN POLITICAL COMMENTATOR: Right, again, unless you're an inside watcher of this, you might think that the changes were not dramatic. But what they signal is Mitch McConnell misreading his caucus. He thought he had them. He would have never circulated that last night. They would have never leaked it to the press if he didn't have the votes.

What happened was there was outrage. My guess is overnight, Senator Portman, Senator Collins, maybe Senator Alexander, these are the people who have spoken out on it, went to McConnell and said, we can't do this, we cannot support this underlying resolution.

So, what it means, I think, is where he thought he was in a strong position, it's weaker than he thought. This doesn't mean we'll have witnesses. It doesn't mean we'll have documents. But it means the push back is real within his caucus.

He sees now five or six members that he has to worry about and he was forced to climb down on this. And I think as Tim said, this is something that Mitch McConnell hasn't done in my memory. He forced Merrick Garland or blocked him. He forced through Brett Kavanaugh.

You want to talk about manipulating the rules of the Senate. So, that's where he got that done. He was not able to do that here. So, I think it signals a much more fluid next week or so than we thought, you know, as early as last night.

BURNETT: And, look, Laura, this comes -- so, you have this big question of what this means for the trial, right? Are they in line as we see in these votes or is there a real concern about McConnell's reading of the caucus? It comes as you're getting a statement from Susan Collins, today, right, who has been as one of the Republicans who might vote for witnesses.

Her statement categorically saying, I'm going to vote to table anything at this point in the trial, but, quote, I anticipate I would conclude that having additional information would be helpful, it is likely I would support a motion to subpoena witnesses at that point in the trial, just as I did in 1999, referring to after the opening statements.

[19:35:03]

What do you read into her choosing to put that statement out today?

LAURA COATES, CNN LEGAL ANALYST: Well, first of all, she's trying to get around the notion that every single time there's a roll call where they ask you to tell them specifically that they do not want to hear from the documents or witnesses, they're forced to go on the record to say I am not in favor of information. She needs to counteract that.

But, of course, she should want more information. I think Adam Schiff has done a very excellent job as has Val Demings and others, Demings, to say how could you not want information available to you? What will you be asking questions about? Nothing will be in front of you. You won't have a reference point to say what did perhaps Mulvaney mean when he said this or Gordon Sondland looking at blank documents.

They are really methodically setting up frankly the Republican members of the Senate to fail down the road when they come later and say, well, I don't have information on this. Well, guess what, the first time you'll be able to ask questions or look at the documents, according to Collins' statement, is after they've got 24 hours from each side of opening statements and then 16 hours of questions. And then they get to look at it. But there's an opportunity to then ask for questions for follow up.

So, what would be the point of having verdict first, trial next, to paraphrase Laurance Tribe earlier today, if you actually want to deliberate and have information, wouldn't you want it right now, even if it might not go your way, just to have it to either support your argument, but trust the credibility of one of the witnesses that may or may not show up, or come, or even to have a leg to stand on.

BURNETT: So, who do you think is the winner here today, Ryan? I mean, obviously, when this amendment is discussed as it will be next, right after this dinner break, you're then going to have the Mick Mulvaney discussion and then they're going to extensively, as we've seen with everything else, table that amendment. So, you'll have Republicans saying they don't want to hear from Mick Mulvaney even though perhaps they do.

Who is the winner?

RYAN GOODMAN, CO-EDITOR-IN-CHIEF, JUST SECURITY: So, I think the winner might be that the American public actually does get to hear from witnesses. That seems to be the reflection on the pressure being placed on Republicans to do the right thing or do the thing that their constituents want. CNN just had a poll that says 69 percent of Americans want there to be witnesses and plurality of Republicans want there to be witnesses.

So, I think that's the variable that's putting pressure for there to be a change. We're seeing cracks emerge we wouldn't have anticipated just 24 hours ago.

BURNETT: I want to bring our Maggie Haberman from "The New York Times".

Maggie, as we have this break here, this -- we anticipate it'll go until right around 8:00 Eastern and then they're going to come back and deliberate on whether Mick Mulvaney would be subpoenaed at this point in the process. What are you learning from your reporting?

MAGGIE HABERMAN, CNN POLITICAL ANALYST: Look, I think I agree there are cracks here and reason to believe there might be movement. But everyone I speak to around the Trump team still feels fairly confident they're going to see Republicans hold the line, not go for witnesses. Again, the main person the White House is concerned about is Lamar Alexander. They believe and they could be wrong, to be clear, we have repeatedly seen the White House project certainty about something when it's not really clear.

But they believe this is going to move ahead without witnesses being called. If witnesses are called and say there was a discussion about subpoenaing John Bolton and having him come forward, he is somebody who they've spent a lot of time focusing on how they would keep him from complying. Mick Mulvaney, they're not concerned about. He has already talked about needing permission from the president, and that's how he handled the House. John Bolton has since said he would comply with a Senate subpoena.

And so, the concern with the White House is you have to go through a process of making sure that information that Bolton was privy to was classified and then go to court. And so, we already saw some discussions around court cases in the house inquiry. You would likely see something similar here if it got to that point.

BURNETT: Ryan, what do you make of how that goes though at this point? Is something like privilege or immunity something that would be upheld in any serious way given that so much of what is being discussed is already public?

GOODMAN: Right. So, the idea that Bolton can come testify and then claim executive privilege doesn't work so well since we've already had his deputies present evidence in the House. So, the idea that the president needs to maintain confidentiality, very communications have been disclosed to the public. We need to hear from the horse's mouth.

So, John Bolton, did you say it was a drug deal? John Bolton, did you raise concerns with the legal team inside the National Security Council. That's a huge part of it. To say no he can refuse to answer specific questions, they're in a pretty weak position.

And there's a strong argument that the executive privilege idea doesn't survive in an impeachment hearing. Maybe it survives with regular congressional oversight but Congress is acting at the zenith of its power, the evidence is confidential.

BURNETT: Laura, what do you think?

GOODMAN: I think that's absolutely right. The idea as well is interesting. Both parties, Trump's defense team and, of course, the House managers are making an argument about separation of powers being at the -- you know, we're maybe at the tail end unless it goes their way in terms of privilege or immunity issues, and inching to have both make their argument because if they are both right, it would force witnesses to be able to be there, right?

[19:40:11]

The only way to assert your oversight power, the only way to say yes this person has done the wrong thing or has done the right thing is for a witness to be called. So, in a matter of fact, they agree on this very fine point about the notion of, listen, there's no privilege that would protect you in general from criminal activity.

There's no privilege that says as long as you are the president no matter what conversation you've ever had is always protected. And it depends also on whether you're talking about Bolton talking to another member of a cabinet. If not the president, is that still covering the privilege?

This is very novel. We do have a chief justice sitting right there who may be somebody to want to weigh in on this, but his hands are tied in a way because if he does this now, any case coming down the pipeline, he will have shown his hand. So, you have a catch-22 to see how he's going to navigate.

BURNETT: And these are the big questions. Also, how was the performance today, Joe?

LOCKHART: Yes.

BURNETT: How would you say -- I mean, obviously, you know, we saw Pat Cipollone. A lot of people had no idea what Pat Cipollone looked like until today, one of the president's obviously chief defenders, Jay Sekulow, we saw again on behalf of the president.

Adam Schiff obviously taking the lead role.

LOCKHART: Right.

BURNETT: And we just saw him on this amendment about OMB, sort of recounting the phone call in Kiev between Gordon Sondland and the president. Jason Crow from Colorado just made his first appearance. How would you say, so far, the performance is as we come into the next amendments?

LOCKHART: Well, I think, you know, it's worth going back to 1999 and comparing it because it's almost the opposite in my mind. I think in 1999, the House impeachment managers did a pretty good job, but they came off as very political. And I think, you know, Chuck Ruff, the White House counsel, David Kendall, the president's personal attorney, and all of the lawyers there won the day as far as the debate because they came off as factual. It was like this is what the law is, this is what happened, and we're just going to keep it today.

The opposite happened today. I think the Democrat -- particularly the managers that we hadn't seen so much from, Jason Crow, Val Demings, Zoe Lofgren --

BURNETT: Yes.

LOCKHART: -- were very, very clear. And the only way -- I mean, I think the chip was a little bit political, but there's points that need to be rebutted. And I think that is much different.

You know, I told people today that if I had been in the White House today I would be underneath my desk in the fetal position. That's how poorly -- I think particularly Jay Sekulow did. They -- it feels like they took the memo from the House Republicans and said, oh, yes, we just scream and yell and say conspiracy and hoax and ridiculous and breathtaking and we'll be fine.

They've misread the Senate. The Senate is very different than the House. People expected something different today and they didn't get it from the White House lawyers.

Now, again, I may be wrong. We may find a different conclusion. But I think the president was let down today by his legal team.

BURNETT: And, Maggie, what's your feeling from talking to them. Obviously, what they're going to say may be perhaps different than what they feel, but what are you reading between the lines?

HABERMAN: Look, they've stuck pretty much to the playbook that they telegraphed they were going to do going into this. We haven't heard what the president's reaction has been catching up to all of this. He's in Davos right now and he always weighs in on how his team performs on television. I'm sure he'll have lots of things to say whether it's private or he tweets something about it.

But they actually feel pretty good about how they handled today, because the thing is as I was listening to Joe talk, I think that in previous iterations of history, you would have people who would be unwilling to go out and say that something had happened, something happened that didn't happen as you saw repeatedly from the president's lawyers today and then you would feel bad about it afterwards. But when you're the president's lawyers and you are walking into this, and you are basically of the belief this is a foregone conclusion, we're going to find out whether they misread the Senate or not. But they believe that this has been stacked in a way that favors them.

BURNETT: Tim?

NAFTALI: Well, Val Demings -- let me talk about Val Demings for a minute. Remember that most of these senators -- House impeachment manager -- most of these senators are lawyers. And she explained what we, the American people, need to know.

And it is very hard when you go document by document to think that this is a -- that this is some kind of fishing expedition to make these grand statements about it's a witch hunt, it's a fishing expedition. She brought it down to the document level. And each of these demands was reasonable. There's an advantage that the Democrat -- that the House managers have gotten today. They had a chance to preview their prosecutorial briefs today.

BURNETT: Right. This is not the opening statements. It may have felt that way to some people watching, but that is not what it was.

NAFTALI: And I think this is important for the senators, even more than the American people. One of the things I think that's true in 1999 is that the senators despite the fact the house had these hearings didn't know the details of the case against President Clinton. They were learning things.

I think the senators are learning things today. I think many of them blocked out what happened in the House. They don't really know the details. And today, Jason Crow, Val Demings, and the other managers were going point by point in a lawyerly, factual, professional way, and the senators, many of whom are lawyers, had to be affected by this.

BURNETT: And, of course, they didn't have their phones or anything else.

All right. All of you, please stay with me. We're going to take a brief break.

Senator Chris Murphy will be with us, just coming out of that room during the break right afterwards. We'll be right back.

(COMMERCIAL BREAK)

BURNETT: Welcome back.

We are in a brief break of the impeachment trial of President Trump. Right now amendment four has been put forward by Senator Schumer which would provide for a subpoena for Mick Mulvaney to testify. That's the fourth amendment. So far, and these are all amendments to the resolution that Senator McConnell put forward which sets the rules of the road for the trial in which opening statements are set to begin tomorrow.

[19:50:06]

As I said, this is a very brief break. We just a few minutes here before all the senators go back into the chambers to debate and argue this Fourth Amendment.

I want to go to Democratic Senator Chris Murphy, who is a member of the Foreign Relations Committee and has been in that room throughout the day.

How do you feel about it so far, Senator? And then I'll ask this in a broader sense, how do you feel things are going? How do you think the impeachment managers are making their case and how do you senators are responding in a room where they are forced to sit without their electronic devices for hours on end?

SEN. CHRIS MURPHY (D-CT): It's been compelling testimony, and though I think we all expected these votes to go the way they have, every single Republican voting against the production of documents and witnesses. It still was frankly a gut punch to me to see all of my colleagues, many of which I have great respect for denying the American public a fair trial. You know, these rules are rigged. In the end there may only be one vote on which we get to see any witnesses or any documents.

And so, that's why tonight it's our on chance to have individual votes on some of the most important documents that the White House has been holding secret, and some of the most important testimony that could fill in some of the gaps that apparently exist in some Republicans' minds.

BURNETT: Now, of course, Mitch McConnell did change the resolution, itself, right? You were going to have 24 hours per side to make the arguments, and they were going to be in 12-hour chunks, which would go to 1:00 in the morning. And now, it's going to be eight hours, much more digestible, more people in this nation are going to be able to watch it. You also have documents that the House already produced. They are now required to be made available to senators.

He obviously had put this resolution forward, had to write those things in by hand.

So do you think that was a big victory or is your takeaway still that this is not fair because of the votes that you are going through tonight?

MURPHY: Oh, I don't think that was a victory. I mean, we were all stunned when this rules package came out last night and they had shrunk down the amount of time that the House managers had to two days so that all of this evidence was going to be submitted in the middle of the night. So, to us, that was absolutely stunning.

And even though they hand wrote in changes, we still have this cadence in which what McConnell wants is for the vote on witnesses and documents to come after the presentation by the House managers, to come after the senators' time for question has passed. And so, it's all backwards and seems to be a deliberate attempt to bury all this relevant information.

So, I don't know that we'll make any progress tonight. I don't that we'll get any Republican votes, but I think making this case all throughout the night about the need for a fair trial, I hope it serves a purpose in the end.

BURNETT: So, Senator Susan Collins, you know, obviously, is somebody that I know you Democrats believe that you might be able to get to vote with you on witnesses when that next vote comes as you point, that single up and down vote that you're going to get.

She made it clear today in a statement she was going to table every one of these amendments today, right, no documents, no witnesses today, but she continued, and I want to quote this again, to say: I anticipate that I would conclude that having additional information would be helpful. It is likely I would support a motion to subpoena witnesses at that point in the trial as I did in 1999.

That point being after opening arguments and senatorial questions. Do you think that she is a profile in courage here, or are you just disappointed her?

MURPHY: Well, I mean, why on earth should we wait until after we have the opportunities to ask questions to hear the most important testimony? It just makes no sense. If John Bolton has a really important story to tell, why wouldn't you want him to tell that story before we have an opportunity to ask questions on the record.

And, by the way, It's not just Susan Collins. You need four Republican senators and right now there aren't four Republican senators --

BURNETT: So, you don't think have them -- Mitt Romney, Lamar Alexander, Susan Collins, maybe a Cory Gardner, you don't see it right now?

MURPHY: I've been having conversations on the floor today with Republican senators. I'm certainly not confident that there are four votes today. There may be by next week and maybe today's testimony and the arguments we're making will help us get four, but I don't know that we have those four yet.

BURNETT: And what is the mood like in the room? Obviously, as you know, the press is sort inform one corner. They have said things, oh, somebody fell asleep, somebody's passing notes to somebody else. I don't say this to make light it have at all. I say it to set up the question to you.

With no electronic devices hours on hours, are people listening? Are senators learning anything? Are people truly paying attention the way they would if they had an open mind?

MURPHY: Well, I can't speak for the mindset of my colleagues. What I can say is that everybody in that chamber is paying close attention, nobody seems distracted. And for a lot of senators, you know, this is the first time that they are being directly confronted in the chamber with some of this testimony from the House.

[19:55:07]

And I think it's really hard for Republicans to see people like Gordon Sondland and Bill Taylor testifying in that Senate chamber and continue to deny that something very wrong didn't happen. But from what I've seen, everybody has been taking this really seriously.

BURNETT: All right. Well, I appreciate your time, Senator. Thanks very much for being with me. I know you just have a few more minutes and, obviously, you're going back into that room.

Look, to my panel here, I have two crucial questions coming out of the conversation with Senator Murphy.

First of all, Laura, let me ask you this, what he just ended with, that he thinks everyone is paying close attention. And I did point out there have been some commentary about people dosing off. I did not say that to be light but to set up a serious question. But his point is, maybe the senators weren't paying as close attention as we were watching this every day in the House. Maybe they hadn't seen all these full testimonies.

Do you think it's possible that people in that room really were learning things about the timeline, about the phone call in Kiev? Is it possible they really sort of went, wow?

COATES: I think it is possible and I follow this very, very closely. And there are certain aspects through the presentation of evidence that I learned, this notion of tell me specifically per agency what documents you're seeking to get. I know we've heard names like Mick Mulvaney. We've heard John Blair. We've heard about other people who they want to hear from.

But tell me specifically what you're hoping to glean and what the testimony during the impeachment inquiry led to believe that documents existed. Now, making that all come together in one easy package is that was missing in this, and that's the actual story of the narrative, that's what's so important in trying to make the documents, that's why the litigators in this field are so great at what they're doing, because you have to actually make that compartmentalization make sense. And here you have her agency, though is seems exhaustive to us an amendment that goes through painstaking painstakingly each aspect of it, it is setting up to say, you wondered why we wanted information, well, because Gordon Sondland said this, Bill Taylor said this.

BURNETT: Right.

COATES: Fiona Hill said this.

BURNETT: Not just generally documents from the OMB.

COATES: Right.

BURNETT: It's this leads to this, leads to this specific time of document.

COATES: Exactly. We didn't have that until now, and that is a way of learning that actually it's very compelling, it's persuasive and maybe eye-opening.

BURNETT: So what do you make, Tim, of the fact that Senator Murphy also said he's not confident that he has those votes? He said, sure, Susan Collins can say what she says, Lamar Alexander can say what she says. His conversations today and his breaks would indicate he's not confidence he has the Republicans votes for witnesses.

NAFTALI: If I were a moderate Republican senator, I wouldn't tell Senator Murphy what I'm about to do because their argument is whether you accept it or not, they want to hear -- they want to hear from the managers and they want to hear from the president's defenders and then they're going to make up their mind whether more materials is necessary.

If they were going to tell Senator Murphy now they were going to votes for witnesses, then that argument is bogus. But I think some of them believe it. So I think Senator Murphy should wait and, you know, next week --

BURNETT: I guess, politically though, he's making a smart move, right? You've got to have the feeling of urgency.

NAFTALI: Well, he does. Politically, but I also think he probably understands that those senators are not going to tell him. He's not number one on their call list to tell when they've made up their mind they're going to go against Mitch McConnell. They're going to wait until there's all this information and there's real pressure and then they'll say, Mitch, or Senator, or whatever they call him, I think I've got to do this, I'm just going to have to do this, I'm sorry.

BURNETT: And you see those cracks?

LOCKHART: You know, and I think what Senator Murphy applying maximum pressure. And that's what today's.

These are -- rules votes in the Senate and the House are generally along party line. They generally get no attention, they don't matter. It's reasonably easy for Susan Collins or a Mitt Romney to say, this is just the rule, we're OK, and we got our concessions.

But it's rare in politics that you see, you know, the train move in one direction and stop and move back. You know, even the pressure of last night and the news coverage forced Collins and Portman and others into McConnell's office, that's a bad trend.

But I agree also with everything that Maggie Haberman said before, which is they feel they can wrap this and hold these guys and the big thing is they will have learned stuff but the question is, does it matter. If they know the case is terrible and they may still say I'm with the president.

BURNETT: And yet, Maggie, they are preparing for witnesses.

HABERMAN: They're preparing for the possibility of witnesses. The witness they're really concerned about is somebody like a John Bolton who has appeared like a wild card in a way that someone like Mulvaney has not. They would be mistaken if they weren't preparing for the possibility this could happen.

One thing they've been very clear eyed about despite more public sense of I wouldn't say bluster but confidence, they're very clear that this could end up going in a number of directions that they're not predicting, and so, they're preparing for it.

BURNETT: All right. And thank you all very much for being with me.

And we anticipate obviously they're going to head back to the chamber to consider the fourth amendment momentarily.

Thanks for joining us.

Our breaking news coverage continues with Anderson.