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House Managers Finish Day One Of Opening Arguments; Sen. Tom Udall (D-NM) Talks About Impeachment Proceedings; The Case Against Donald Trump. Aired 12-1a ET

Aired January 23, 2020 - 00:00   ET

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

[00:00:00]

ANDERSON COOPER, CNN ANCHOR: -- turn things over to Chris for CUOMO PRIMETIME, Chris.

CHRIS CUOMO, CNN ANCHOR: Hello, everybody. I am Chris Cuomo. House Managers have two more days to make their case for removal of President Trump from office.

The big question after day one of the arguments is, what's the impact? What is new? What seems to sway? What is the indication of that? The facts are there, to the extent that they are knowable at this point.

Remember, the Democrats are in a little bit of a tricky position. They're arguing that from what we know, so far, it looks bad. From what and whom we can't have, we believe it gets worse. So that creates a question mark, that the Republicans and by extension, the President's legal team, will almost certainly use to prove poor effort in the House. You didn't get it done. And two, we don't know the unknown, your job was to prove it, and you didn't.

So how will it play? Well, one indicator is the President. He is back home from Davos, and he said earlier that he would love to be at the trial and then was pushed by a reporter well, then go, well, I might well, then why don't you? Well, I'd love to, well, then why don't you go? I'd like to sit in the front row, he said, and stare down the Democrats prosecuting the case against him.

What he did not say is that he would do what you could see as the measure of a person with nothing to hide: Sit in the chair, take the oath, and tell us the truth. That apparently is not in his desires of what he would love to do.

Let's break down the case made against the President today. What did they do? What do they still need to do? What difference does it make? Great minds. Andrew McCabe, Asha Rangappa and Michael Gerhardt. Thank you one and all.

Let's get general assessment, go into specific moments. We see pluses and minuses, Andrew.

ANDREW MCCABE, CNN CONTRIBUTOR: So I think like many of the folks have said earlier this evening, I think Schiff was incredibly impressive.

CUOMO: Why?

MCCABE: He knows the facts. He knows the law. He laid it out in a compelling way that hit not just those details, but also the patriotic and the kind of the themes behind why this should be important to ordinary Americans.

CUOMO: Simple enough to understand if you're not a senator?

MCCABE: I think so. But here's where I think they fell short today. Eight hours is a long time to put any sort of presentation on in front of any audience.

I think what they lacked today was clearly communicating the structure of the presentation. There were times when I found myself as a fairly educated consumer of these things, I have been tracking these developments for many weeks now. There were times during the day when I just didn't know where they were in the presentation.

Some of the presentations seemed to overlap, some of the facts were repeated. I think if they continue in that manner, it's going to feel muddled and overdone after three days in this.

CUOMO: Asha?

ASHA RANGAPPA, CNN LEGAL AND NATIONAL SECURITY ANALYST: Well, I was impressed that they did not fall down the rabbit hole of trying to anticipate and rebut the White House's, you know, whatever, rare Jedi mind trick that they been pulling.

They made an affirmative case. They laid out their own thing and they worked in some of the -- they addressed some of the objections, but in their own way, by for example, incorporating the acts of obstruction as they are laying out the narrative at the points where additional evidence might have been helpful, and yet they were being stonewalled by the White House.

So they were covering both of the Articles and also doing it with their own narrative and not necessarily trying to rebut the White House and then danced.

CUOMO: Schiff did that especially the way it appeared to me was he would say, this is what we know. Now, what we suspect is this and what we'd like to see is this, but I can't show it to you or I can't give you this person. They won't allow it. That was interesting.

Mike, pet peeve through this process. I know you don't need it, you have all taught me very well in terms of what abuse of power is and what it means and the founders. Having a big stick to swing, and there was a bribe. And there was a bribe.

Do you think that at least optically, seeing how that is the main line, you know, subject to your pushback of the President's defense, there is no crime, should they have drafted it differently?

RANGAPPA: So I personally think that they should have included bribery.

CUOMO: They'll say that you're almost as dumb as Cuomo. It is in the first Article.

RANGAPPA: And I'll say this, and not with the aid. I think that they could have constructed that around the conditioning of the White House visit with the investigation or the announcement of the investigation.

I think it would -- so I think there are two things. I think it would have been easier if they, you know, had -- let me put it this way. I think it would have made it more complicated, I guess to explain to the American people because you would have added another component, but that piece, the White House aide -- or the White House visit piece is in the call. It's laid out in the MEMCON, and it doesn't end up needing all of these extraneous pieces of documentation.

[00:05:14]

CUOMO: I hear you, I hear you, and look, you know, you're the Law Professor at UNC, and I know that if you were testing students on this, and they said, yes, you need a crime. They're going to get a lot of deductions on any exam about this. I get it.

But the political optics. We hear the argument all the time from people, they forget about social media, but I don't get what the crime is. I don't know -- don't they all abuse their power?

I mean, how bad an abuse of power? I mean, so he lied? Don't they all kind of do that? So he was pressuring them because he wanted something because it would be good for him politically? But don't they all kind of do it because it's good for them politically?

That seems to be as big an obstacle as any to the Democrats. How do you see it?

MICHAEL GERHARDT, HOUSE IMPEACHMENT HEARING WITNESS: I don't ultimately see as an obstacle. But having said that, I understand why people can get confused and they find it appealing focusing on the fact that there should be a crime somewhere.

Here's where it becomes a problem in this particular situation. The President's lawyers are arguing now there has to be a crime in order for him to be impeached. But they are also saying that as President of the United States, he may not be subject to any criminal process while he is in office.

CUOMO: They actually argued exactly that, and not just indictment, which we've all heard, they argued in Federal Court, no process at all. And in fact, the judge asked this hypothetical, what if you killed somebody? Are you saying he'd be immune from any process then? They said yes, that as well.

GERHARDT: So what they've set up is a situation which is impossible to meet.

On the one hand, you'd have to be able to show there's a crime here, on the other hand, he's going to be able to argue or his lawyers are going to be able to argue, look, he can't be held responsible for that crime while he's in office. Therefore, there's no other way to hold him accountable.

They've left no other option. The only option they're ever going to concede is the election, which is exactly what he tried to rig.

So the problem we've got here is that focusing on a crime which is not required in an impeachment proceeding gets us off issue. It gets us looking the wrong direction.

The right direction, which the framers set up impeachment to address is abuse of power. That's the exact reason why impeachment is in the Constitution, it's there to provide a check against a President who is abusing his power, which by the way, is illegal.

Abuse of power is defined as exceeding the powers the Constitution gives you. Therefore, when you abuse power, you're engaging in unconstitutional activity. You're violating the Constitution. That's illegal. And there is where the breach of the law is.

CUOMO: Andrew.

MCCABE: So I don't disagree with that. But here's my thoughts on it. Had they made the argument that the exchange he requested, initiation of the investigations in return for the White House visit is tantamount to a bribe, it would have completely changed the overall argument about the Articles themselves.

Right now, what the Republicans are saying is, you failed to state in the Articles an impeachable offense. You failed to meet that threshold of impeachable offense. Had they included the word bribery in the Articles, I think the entire conversation would be around does it qualify as bribery? Or does it not? Which is ultimately I think better ground for the Democrats in the House to fight on.

CUOMO: Was there a moment of the day that jumped out at you guys that you want --

GERHARDT: There was from me.

CUOMO: Plus or minus, what was the moment, we will see if we have that.

GERHARDT: The one of the moments that really struck me and disturbed me a great deal is when Republicans started walking out of the trial.

That's a very problematic --

CUOMO: We don't have that, because I remember why. I know there are cameras. But this is the Senate that controls the cameras, and it makes us actually kind of -- me, anyway, I miss the days of C-SPAN, because at least they moved their cameras around a little bit.

There is reporting that up to 21 seats, I think, I saw reported online after the floor manager Bob told me about it, that were Republican seats that were empty at once, not over time. What does that mean to you?

GERHARDT: Well, that means --

CUOMO: That was a violation of law.

GERHARDT: I was about to say that. It is a violation of the law, which conveniently they don't have on tape, and what it reinforces is the sense, not only is the President in a sense, a scofflaw, sort of thumbing his nose at the law and saying, I've got the information, but you can't get it from me.

We've also got senators who don't care about what the law is either, either when it's broken by the President, it's unconstitutional, or when they violate it themselves. That's a problem, and at some point, the American people have to hold all these people accountable and hopefully, that'll happen relatively soon.

CUOMO: You know, look, to the earlier point about what makes it more simple and more complicated. The idea of having a big stick to swing about what this was, simple matters of politics.

I know that this is for the senators. I know that this is technically for like a small swing group of senators, but that's just a dream to get witnesses. What do witnesses help you? First of all, we're not dealing with unsophisticated people.

They want John Bolton. They want Mulvaney and they want Pompeo. If I were on the Democratic side, I would go very heavy on the category of be careful what you wish for again. This is the same thing they said about the Russia investigation.

[00:10:16]

CUOMO: The next one, the next one, the next one. And it never came to bear fruit. Similarly, do you really believe Mike Pompeo is going to give up the goods on President Trump or Mulvaney will give up the goods or Bolton?

Even if they asked him about the drug deal, you don't think he explains that way as I didn't like the way he was conducting foreign policy, but it's up to him?

RANGAPPA: Yes, I mean, they are wild cards in their own way. I think the documents are really the more important piece of evidence that they need.

I mean, we already know from the Just Security reporting that gave the unredacted versions of the e-mails that were released by the Department of Justice, that, you know, that these documents actually contain conversations that go to -- points that the House Managers want to make.

CUOMO: And just as important as the substance, I think you actually -- and I'll steal a lot of your points. I know, I apologize. But I think you said to me once before I was like, yes, and who knows what's in them. You're like, the fact that they won't give them is as powerful a point of persuasion as what will be in them.

And I think the President echoed your point today. Play the sound that we have of him.

(BEGIN VIDEO CLIP)

TRUMP: We're doing very well. I got to watch enough. I thought our team did a very good job, but honestly, we have all the material. They don't have the material.

(END VIDEO CLIP)

CUOMO: You know --

RANGAPPA: Maybe they confessed to the second Article.

CUOMO: Right. I won't give you the information. I won't give you the people. I won't give you the information. That doesn't seem to be getting purchased with people that he won't -- I think it's the biggest thing going in this situation in terms of the optics for the American people. He won't let you have access to the people he says will explain it was okay nor any of the documents that will explain what happened here, which he says would exonerate him. Does that make sense? How do you deal with that?

MCCABE: Well, it doesn't make sense and I think the reason -- but the reason that's not getting purchased as you say is because this is entirely consistent with who the President is and how people understand him.

He is seen as the great counter puncher, the great fighter, so he has come into this, the fight of his political life and he perceives that you know, it is completely fair game to take -- bring to that fight any Bare Knuckle tactic that he possibly can to defend himself.

So if that means I have all the information that you want and I'm not going to give it to you, fine. That's what I'm going to do. He does not get bogged down and subpoenas and laws and legal process. He is just going to fight tooth and nail to defend himself in any way he can.

CUOMO: Whatever it takes. I've never heard a Republican have a good answer yet on the show to this. They say, he released the aid, man. Nothing happened. They didn't investigate the Bidens. They got the aid. Leave it alone. You know, nothing happened here.

But isn't that exactly the problem, Professor, is that the aid was being held in anticipation of this offering from Ukraine, and only once there was word of the concern over this pressure campaign, was the aid released, even though there was no satisfaction of the stated need of we're only doing this holding up the aid for corruption, and to test that it isn't there.

But they got no satisfaction on that. Why did they release the aid?

GERHARDT: It's a really good question. As you point out, the President says he was concerned about corruption generally, there's no evidence that supports that at all. And there's certainly no evidence or indication of course he ever got what he wanted the favor he requested in this situation.

But what we also know is that in a sense, he was getting caught, and once he is caught, what's he going to do? Up until this time, if we look at the other evidence that has come forward since there was an impeachment, there's a lot of evidence indicating that people in the administration were getting extremely upset and antsy about the fact the aid was not being released.

That was the law Congress passed. They passed a policy. The President's job is to enforce that policy. He wasn't enforcing that policy. And at some point, people in his administration were begging him, Bolton, among others, begging him to release this --

CUOMO: And they were right, not just for political reasons, but legal ones. The G.A.O. wound up coming out as by -- as nonpartisan as you get these days, saying you needed to do it or it was illegal.

Thank you for giving us a taste of where this started today. Where it goes, we don't know. But Andrew McCabe, Asha Rangappa, Michael Gerhardt, thank you very much.

All right, now ahead, we have someone who's been in there, this front row seat, and by the way, how did this play that the Republicans aren't there? That tells you that this person is a Democrat, because I can't get a Republican senator to come on right now. What does that tell you? A good interview, next.

(COMMERCIAL BREAK)

[00:19:05]

CUOMO: Now, there are two points of perspective on what this is all about, this impeachment? Is it about the jurors in the room? Getting Republicans as the task would be for Democrats to see a member of their own party, a President nonetheless, as worthy of taking a side against.

Now, that's one way to look at it. The other way is that this is about you and you understanding what senators are and are not allowing as acceptable conduct.

So let's talk to someone who is in that room and get a sense of what it's like, the Democrat from New Mexico, Senator Udall.

Senator Tom Udall, thank you for being on the show.

SEN. TOM UDALL (D-NM): You bet. Pleasure to be with you, Chris.

CUOMO: What was it like this day of living history and to hear the argument made?

UDALL: Well, this was a pretty amazing day getting into this first day of hearing, the really full rendition kind of big picture part of it. What fascinated me was hearing so much new things that have come out and the interconnections and if we're really searching for the truth like we should be doing in a trial, why don't all of us join together to get more witnesses and get the key people here to really understand what's going on.

[00:20:22]

UDALL: I'm mystified in a way by the Republicans at how uniform they are it just not wanting to learn more about this. I don't understand it.

CUOMO: There was some reporting out there that there were empty seats on the Republican side. Did you see any vacancies over there?

UDALL: Well, I think there were a few seats. I think the idea that I'm thinking about, about how to try to get into the additional evidence, get into witnesses and documents is it's an idea that, Chris Van Hollen had this vote on, but we're thinking of bringing it back.

Why don't we let the Chief Justice determine what is material and relevant to this operation? It just seems to me, we ought to be letting a neutral party. The Republicans must feel comfortable with him. Here he is appointed by a Republican President. He's impartial, he's neutral. Let him rule on the witnesses and the evidence. That seems to me like a really good idea.

CUOMO: It weent down on a party line vote last night, like all but one of the amendments. And you know what the answer to your question is? The answer is because the Republicans have the power, and why would they want to give the power to anybody else, even the Chief Justice?

UDALL: Well, the power is, you're giving it over to determine relevancy on witnesses. So you don't need to get into partisan battles and you're doing the right thing. You're trying to seek the truth. You're trying to get to the bottom of what happens, that is our role to be in the Senate and to seek the truth here. We're not supposed to be partisan voting partisan lying, and so I'm trying to figure out what are those ideas? What are those things that make it so that we can come together and learn as much as we can?

You obviously, with the truth, you don't learn everything, but you can sure get a lot more than what we're getting right now.

CUOMO: You want the best obtainable version of the truth. But you have the Majority Leader who told the world before he took the oath that he is not impartial, that he would be in lockstep with the White House.

This is the first time that we've seen a party try a President of its own, and clearly they are struggling over there to the extent it's taking effort for them to be anything but partisan. Why do you think they would surrender any of that power?

UDALL: Well, it's really unfortunate that what the Majority Leader did, but I think after hearing this now for two days, and a lot of new things have come out, I hope that the Republican side is learning a lot, and I think what we're going to see is them start trying to figure out how do we learn a little bit more.

They have said over and over again, they want to wait and vote on witnesses at the end. If they are truthful, and they say that's what they really want to do, and that's their desire, I think they're going to learn a lot by then, and I hope they change their minds on learning more, seeking the truth, getting to the bottom of what's going on here, because this is pretty scary for our democracy.

CUOMO: Well, look, it has to function, and these are very interesting days and how this plays out will largely play as a metaphor for the state of the democracy during an election year. What do you think the chances are, that sometime next week, there will, in fact, be a vote and witnesses will become part of this process?

UDALL: I don't know what the chances are, but I'm going to do everything I can visiting with my Republican friends trying to come up with ideas like this idea of letting the Chief Justice decide what's relevant and what is material, and let him make a ruling on it.

CUOMO: And you think that there's a chance that Republicans would cede that power to somebody that they don't control and would almost definitely lead to witnesses?

UDALL: Well, it would certainly would improve the party line voting, which I don't think looks good for anybody. The partisan process when you're supposed to be in a trial, everybody knows in a trial, you hear witnesses, you look at documents.

There's a lot out there we're learning every hour, we're over there. There's a bunch of new things that we realize. We don't have the documents. We don't have the witnesses. We've got to get them.

CUOMO: So the last question is at this point, just in terms of prospectively, even if you were to have the vote on witnesses, and you were to get that simple majority, enough cross lines, three, four senators, whatever the math is, based on the Democrats holding ranks, and you've got witnesses, do you have any doubt that this President will be acquitted given that this is about votes?

[00:25:01]

UDALL: Well, I think the more we get into this and the deeper we get in and the more we learn, I can't believe that Republicans aren't going to be very troubled by this, scared by this and worried about our democracy, and that's just where I am today.

I don't know what to protect. But I think this is a pretty amazing process and a lot has come out.

CUOMO: It seems like the first place to start is to tell you brothers and sisters on the Republican side, they've got to sit in their seats and listen to what's going on. If they're not there, they can't learn.

Senator, thank you so much, after a long day of taking us through this day, which is living history. Thank you for being a part of it with us.

UDALL: Thank you. Thank you. It's a pleasure. Thank you very much.

CUOMO: Kind of funny, right, and the senator is trying to be polite, which is one of the hallmarks of the Senate in terms of how even both parties deal with each other. But it's kind of not funny, either. Because if nobody is really paying -- if they're not paying attention, if they're not really open, what happens at the end of these in the questionings about the two cases from the senators?

What is the chance that you ever get access to the people and the papers that give you the truth of what this pressure campaign was about?

Now, that takes us to whether or not the people in the room matter. That takes us to what you make those people in the room care about. So let's do this.

In the next segment, we're going to take a look at what we believe the impact is and why with some of our top political brains, next.

(COMMERCIAL BREAK)

[00:31:05]

CUOMO: All right, some perspective on not one Republican, as you'll remember, broke from the President and the House amid the mountain of evidence. Why would things be different here in the Senate? Let's get to two very important voices, Margaret Talev and Professor Ron Brownstein. I call him that, because he's so damn smart.

Margaret, you know, we've heard different things. Manu Raju says, you know, he talks to a lot of people on the left and the right. And the Republicans he talks to most of them know how they feel about this already. We've heard reports of there will be more variability. But what's your sense?

MARGARET TALEV, CNN POLITICAL ANALYST: Yes, I mean, I think we've got this half a dozen or so Republicans, including Susan Collins, Cory Gardner, Lisa Murkowski, we know this group, and then we've got a few Democrats who present kind of the potential wildcards here, but it is, and as far as we know, at this point, not a question of whether they would vote to convict, it is a question of whether they will join forces with Democrats or counteract Democrats to force some of these votes that are going to be important next week on witnesses or new evidence.

We're just not hearing from anyone based on the information that's available at this time that there's any real risk of the President actually being convicted in this trial.

CUOMO: Right. It's really just about the optics in that way that if their votes are there, you're not going to get anywhere near two thirds. Therefore, the President will be acquitted, but it is how much stink is put on him? And how much does the party have to bear, Ron, in terms of what they ignored? And on that level, the more they allow in, the more they're going to

have to account for. So what does that tell us?

RON BROWNSTEIN, CNN SENIOR POLITICAL ANALYST: Right, well, it that's why it's more than optics, I think, as you as you got to the second part of your question there. Because I mean, even if a conviction is extremely unlikely, after all, no Democrat voted to remove Bill Clinton from office in 1998 and for that matter, no Democrat voted to remove Andrew Johnson from office in the 1860s.

So it's highly unlikely that people in the President's own party will vote to remove him from office. But this process can still have an effect on his overall standing with the public, and with the standing of those senators with the public.

I mean, in the CNN polling that came out this week, 58 percent of Americans said that he abused his power in the way that he dealt with Ukraine and in the Pew poll that they came out today, over 60 percent of Americans said they believe that he has committed definitely or probably committed a crime while President.

The more evidence that comes out, I think the more -- and certainly today reinforces those perceptions and the contrary risk to the Republicans is that with those perceptions already in place, simply trying to brush this aside, saying we don't need to hear from witnesses, we don't need the documents doesn't really look like they're taking it seriously.

CUOMO: So that's the big question, then, Margaret, what's the plus minus in terms of what's worse in the minds and hearts, maybe of Republicans getting beat up for not having witnesses, or getting beat up for having witnesses that make your decision to vote to acquit look bad?

TALEV: This is the calculation and that Pew poll that Ron mentioned is really interesting because part of what it showed, is that something like about a third of Republican voters, and this is a poll that has just finished being taken. Right? So it's very fresh polling, about a third of these Republican voters are saying they think President Trump has probably done something illegal or highly unethical since taking office.

But most of them still, like a majority of that group of voters still say they don't think he should be removed from office. They continue to support him. So it shows sort of the complexities here. These same Republicans who are concerned about what happens in a General Election also understand that within their base, President Trump still retains the strong support and that you're -- in some cases sort of damned if you do and damned if you don't.

If your reelection is that precarious anyway, is forcing a vote on emotion for more testimony actually like going to help you in any way? And so we have this real question, which is, will we hear from John Bolton? Will we hear from Mick Mulvaney and these other figures? Or will the threat of that vote be used for Democrats to leverage depositions, new evidence? [00:35:21]

TALEV: Some of these elements that are not quite a witness, but are new information that could enter the case here, and if that happens, there is the potential for things to become unpredictable.

CUOMO: Ron?

BROWNSTEIN: You know, even if you're just looking at the politics though, there are other dynamics than just November because obviously not all of them are up in November, the Republicans and not all of them are facing competitive elections in November.

The other dynamics are, I think it's pretty clear that if every Republican or virtually every Republican in both chambers votes to say there is nothing to sanction here, there's nothing wrong with what the President did in Ukraine, they are signing up for more of this behavior because one thing we know is that President Trump is a student of power and more precisely of weakness.

And if he perceives that they are going to stand with him no matter what, you can bet that he's going to push the envelope further in ways that we can't predict, and the other thing, of course, is that there's the institutional issue here that there will again, be a Democratic President, and there will, again, at some point be a Republican Congress while there's a Democratic President.

And if every Republican in both chambers says it's okay to systematically stonewall and reject any request for information from this Congress, you know, they know, they are setting a precedent that a future Democratic President will be able to employ against Republicans down the road.

So there are other considerations, I think, than just how this plays out in November for the handful of Republicans, five or six who are facing truly competitive races.

CUOMO: Well, look, it would be nice if fear of creating a precedent were enough other than it's something structural like the filibuster. What have we learned so far, Margaret, it's that it's all about one set of rules when it's your side and another set of rules when it's the other side. You know, we're all seeing the clips of how the Democrats had different things under Clinton.

Now, I think they have a much better set of facts to the extent that we know them than the Republicans had back with Clinton in terms of things that are impeachable by their nature.

But you know, I don't know how big a deal precedent is to these guys versus keeping your power and not having a President hunt you down in a primary.

TALEV: Yes, I mean, we've all like, we're all students of political polarization. We thought things were polarized in the 1990s. It turns out that there was more to go, and so what you do have is a scenario where right now, again, unless there's some major game changing transformation that occurs, this really is at this point, a matter of the court of public opinion.

And what this process allows right now, as for the day that just finished and the next two days are for Democrats to have the stage to themselves, which means -- which means that the only person who really has the ability to defend President Trump until that part of the process is over is President Trump, which is why we may very well hear from him tomorrow.

There are a few opportunities. He is leaving for Florida to go address the Republican Party's Winter Convention, and so we may see him at his departure, we may see him at his return. And you can bet that in that closed door venue with those Republicans that they will be expecting to hear from him, and we will hear from him in turn. This is a highly politicized messaging event at this point.

CUOMO: Well, I'm sure his counsel is going to try and get him to keep it quiet, although so much for that. I think, today I just saw a tabulation that he tweeted more and retweeted more today than in any other day of his presidency.

He's going to say what he wants. And in fact, he said to the whole world today who was listening to his comments, we have the materials they don't. That's the problem. Margaret Talev, Ron Brownstein, thank you very much.

So how effective is it in making the case? Now, if this were a criminal trial, not a political one, a lot of things would be different.

Let's look at it this way. Let's look at it through the eyes of the law and where we are in terms of making a compelling case. Are the Democrats anywhere near where they'd have to be to meet that threshold if it were real trial. Next.

(COMMERCIAL BREAK)

[00:42:59]

CUOMO: All right, here's what we now know, after the first day of the case by the Democrats, their strategy is to hammer home what they know, okay? But it's a two-step dance. They're going to keep doing it and it can get repetitive and they try to change people up, but it can get repetitive.

Let's bring in great legal minds, Jennifer Rodgers and Elliot Williams to discuss the dance and how effective a dance it is. I call the dance, Jennifer this, that here's what we know. It looks bad. It looks bad. It looks bad. Here's what we don't know. And that could make it worse. It could make it worse. I can't show you though. I can't. They won't give it to me. How's it working?

JENNIFER RODGERS, CNN LEGAL ANALYST: I think it's working well, in the sense of it is putting forward a very compelling case for the TV audience, the public. I don't know if the senators are going to be swayed by this. But if they're listening, they're paying attention and they have an open mind. They don't have their phones we know, so they should be paying attention when they're in the room.

You know, they have to be thinking to themselves, is this really fair? Is this really what I want to do? You know, will it sway them? I don't know. But I think they're doing a good job. The best case they can to try to get them to change their minds.

CUOMO: Quick follow. If you were making the case as a former prosecutor, which Jennifer is, would you like to have the word bribery to swing a little bit bigger than they can? Yes, it's in the first Article. I know, you've talked -- you've lectured me on this before.

But it's not the big ticket item and that abuse of powers. Would you want that tool at your disposal?

RODGERS: You know, I actually wanted it when they came out with the Articles. I thought they should have put in an Article that explicitly charges bribery. I think they have the facts to support it. And I think they should have said, yes, it's bribery. Yes, it's also abuse of power. Yes, it's also obstruction of justice.

So yes, I would like to see that. It at least takes away that argument that the Republicans have been hammering.

ELLIOT WILLIAMS, CNN LEGAL ANALYST: Now, the counter argument to that, though, is that if you start getting into the fight of having a crime, that takes away from the point that impeachment doesn't need to involve a crime, and this was specifically what the framers have laid out.

Look, the Federal Criminal Code which lays out offenses and everything from bribery to extortion, even selling crack wasn't written until decades after the Constitution. So the idea that you need a crime in the first place is false.

CUOMO: Is that too big brain though?

WILLIAMS: It's a little big brain. I mean, I think as people can get their heads around a term like bribery, I just think we're getting bogged down in the argument from the Republicans right now that you need to have had a crime.

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WILLIAMS: And so even going down that road, I think gets you into a little bit of trouble.

CUOMO: So what's the best road?

WILLIAMS: Well, you know, I think so Schiff -- you touched on this a little bit in your opening comments. Schiff -- the strongest point today was laying out the things that he could not show, which was I would love to show you the August 29th -- I think it was a call memorandum that the Ambassador had laid out, but I can't show you that because it wasn't made available to me.

I'd love to show you. It is contemporaneous. I can't show you that. If the audience is those persuadable senators, then he won. They got it. Now if the audience is the public, I mean, it's a little esoteric and big brain, I think that's not a win.

CUOMO: All right, although as Lincoln instructed us, you know, if you have the people with you, you have all the power. If they start being like, you know what, I want to know a little bit more about this, but that's a heavy suggestion at this point.

Look, the plus minus for the Republicans is what's worse? Not having witnesses and people judging me for not really wanting to judge this, or having witnesses still voting to acquit the President and having people judge me for having ignored the things that I willingly allowed them to see.

The Democratic side, though, Jennifer, is also an interesting calculus. They want witnesses more than anything, right? But what happens if they get those witnesses and they get Pompeo? They get Bolton? Mulvaney? Are they really going to go bad on the President? Even if Bolton says yes, I thought it was a drug deal, comma, because I didn't like the way he was conducting the foreign policy. I thought he should have done it differently. Now it's gone just like that.

RODGERS: Yes. So Bolton is of course the big wild card here. Pompeo is not going to turn on the President. Mulvaney is not going to turn on the President. I mean, they'll have to say certain things if they're called, but ultimately they're going to try to spin it any way they can.

Bolton, we don't know. But he is no friend to the Democrats, and you know, I think you're right. They really don't know what they're going to get, but they have to push, push, push, right?

I mean, the obstruction has been so egregious and so appalling that they have to push for this. I mean, that really is what they have to do to try to show the American people that even if they don't get these witnesses, this is what's going on here. This isn't fair. You have to do something about this on November.

WILLIAMS: I think the unfortunate thing though, is that, you know, I'm surprised at how many Democrats are showing -- even Dick Durbin who has been a pretty liberal leader of the Democrats, almost showing receptiveness to having Hunter Biden come in as a witness.

And the simple point is, he's not a relevant witness, number one. Number two, in any trial and any prosecution, you would never trade witnesses. You would simply call people who were relevant and had --

CUOMO: What if you're not there.

WILLIAMS: But he is --

CUOMO: But I am saying you're in a political thing where you're at the mercy of the Republicans.

WILLIAMS: Okay, but then even in a political matter, his testimony isn't relevant to whether the President violated his oath of office or violated the Constitution.

CUOMO: I totally agree.

WILLIAMS: It's relevant to whether Joe Biden should be President like whether he is compromised --

CUOMO: I agree with that, too.

WILLIAMS: ... whether there is poor judgment, and that's for the voters to decide, but you're making this apples and oranges saying that if you get John Bolton, you get this ancillary witness that has nothing to do with anything.

It's almost like remember John Hinckley who shot President Reagan. It's like if he called Jodie Foster, as a witness saying that, you know, the person who inspired me to do this crime where I broke the law needs to come testify, too, when she wasn't relevant either.

CUOMO: I agree. And in fact, I go a step farther in the analysis, feel free to disagree. It happens all the time on the show, which is, if that were the trade, and I do disagree with that, if I were the Democrats, I'd do whatever deal I have to do to get the people what they want.

But I don't think they're going to be as satisfying as the Democrats think. I think it would be a Pyrrhic victory. You would get witnesses and those witnesses would wind up being proof to a lot more people than they think. This case wasn't that great because these guys did the slam at home for you, and it would be very helpful to President Trump to have anyone connected to the Biden's on that stand. What do you think of that?

RODGERS: Yes, they should not allow Hunter Biden to be called. I mean, they want to turn this into a circus, I mean, the Republicans, right?

CUOMO: Oh, yes.

RODGERS: The Democrats --

CUOMO: The President, the President.

RODGERS: Well and his supporters in the Senate and the House presumably, so I think the Democrats need to keep it serious. Keep it on focus, keep it what it's really about, and not go down this ridiculous path of letting this circus explode and having Hunter Biden there.

CUOMO: A week from tonight is my guess, we will know. And I'll probably be joined by you good people. I will look about 15 years older, and we will know how this witnesses ends because that's the way it looks like it's going to come out math wise, but every day will really matter.

Jennifer, Elliot, thank you very much, both. All right, so the jury or the judges, depending on which parlance you

want, in either case, you're talking about the senators here. What are they doing? Long day, are they taking notes? Other people have been spotted doing things. You want to know what? Some people have been spotted with an empty seat where their butt is supposed to be.

These are scenes from the trial that will forever go down in history. How are some of these senators going to be remembered? Learn the answer, next.

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CUOMO: All right, so the cameras in the gallery where the impeachment trial is happening, they are controlled by the Senate, and they focused on opening arguments.

But there is a lot more happening behind the scenes. Like what? Some senators are getting more lax about their decorum rules. How? Well they've been advised to refrain from speaking to their neighbors. After all, it's their duty to listen here to the arguments put before them. But if you have been seen openly whispering or passing notes to one another, one made its way to as many as 20 senators up and down the rows.

Others have gotten around the "no use of phones or electronic devices rules," making their way to the floor with Apple watches on their wrists or escaping to the adjoining cloakroom like G.O.P. Senator Rand Paul who appeared to be scrolling through his phone during the final hours of arguments.

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CUOMO: He was also seen with a crossword on his lap hours earlier. But perhaps most pressing was the sidestepping of guidance to, "Be in attendance at all times during proceedings."

At one point, at least 15 seats were empty. I've seen reports of more than that, but at least 15. A dozen Democrats also stepped away.

All right, Senator Lindsey Graham, notably, Republican obviously spent more time absent from the chamber than sitting in his seat. That's a violation. You could get in trouble if rules mattered to anyone.

Long hours. Challenging we know. Uncomfortable chairs, uncomfortable material, maybe the chamber's strict rules against food and beverages partially to blame.

Coffee banned from the Senate chamber. What isn't? Water, milk and candy. Do adults drink milk? Is that okay? That's kind of weird to me.

Most are getting their sugar fix here at the candy desk of Republican Senator Pat Toomey. It's known as a bipartisan desk. Sugar unites all, open to Republicans, Democrats, Independents, whatever. It's a good metaphor for what this should really be about, right? These senators should be doing their damn job. Don't make it about

party. Make it about principle.

All right. We have a second hour of continuing coverage on the Trump impeachment trial, the first day of major arguments against the President.

If you're just tuning in, we're going to bring you up to speed on all you need to know right now.

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