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Democrats Make Their Case Against Donald Trump; House Managers Target Key Republicans With Their Case. Aired 1-2a ET

Aired January 23, 2020 - 01:00   ET

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


[01:00:28]

CHRIS CUOMO, CNN ANCHOR: All right, it is a wrap for day two of Donald Trump's impeachment trial. Technically, it's day one of hearing the arguments of the Democrats in earnest without toggling back and forth between the Republicans. A lot of it will sound familiar, and that's part of the challenge.

So the Democrats took to the Senate floor, eight hours, really eight hours plus with the breaks, presenting their case for the President's removal. Sara Murray has all the highlights for you right here.

(BEGIN VIDEOTAPE)

JOHN ROBERTS, CHIEF JUSTICE, SUPREME: The Senate will now hear you.

SARA MURRAY, CNN POLITICAL CORRESPONDENT (voice over): Democrats began to prosecute their case against President Trump today by using his own words to try to incriminate him.

(BEGIN VIDEO CLIP)

REP. ADAM SCHIFF (D-CA): Just as he solicited help from Ukraine in 2019, in 2016, then candidate Trump also solicited help from Russia in his election effort.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES OF AMERICA: Russia, if you're listening, I hope you're able to find the 30,000 e-mails that are missing.

SCHIFF: There is no question that President Trump intended in pressing the Ukraine leader to look into his political rival.

TRUMP: They should investigate the Bidens. And by the way, likewise, China should start an investigation into the Bidens.

(END VIDEO CLIP)

MURRAY (voice over): The President appeared to be tuning in aboard Air Force One tweeting, "No pressure."

(BEGIN VIDEO CLIP)

SCHIFF: Mr. Chief Justice, senators -- (END VIDEO CLIP)

MURRAY (voice over): Lead impeachment manager Adam Schiff opened day two of the trial with marathon remarks, stretching two hours and 20 minutes without a break.

(BEGIN VIDEO CLIP)

SCHIFF: That concludes our introduction.

(END VIDEO CLIP)

MURRAY (voice over): As he argued the evidence overwhelmingly proves Trump abused his power and obstructed Congress.

(BEGIN VIDEO CLIP)

SCHIFF: The President this unapologetic, this lawless, this unbound to the Constitution and the oath of office must be removed from that office.

(END VIDEO CLIP)

MURRAY (voice over): Democrats have two more days to make their case against the President and convince moderate Republican senators the trial should include new evidence and witnesses.

(BEGIN VIDEO CLIP)

REP. JASON CROW (D-CO): As you can see, there isn't a lot to read here. You should demand to see the full record. The American people deserve to see the full truth when it comes to presidential actions.

(END VIDEO CLIP)

MURRAY (voice over): But today Democrats ran through the record they have. Officials worrying the freeze on Ukraine aid was illegal. Efforts to oust former Ambassador to Ukraine Marie Yovanovitch. Rudy Giuliani's own admission that he was pursuing investigations in Ukraine to help his client, not the country.

(BEGIN VIDEO CLIP)

REP. HAKEEM JEFFRIES (D-NY): Rudolph Giuliani is a cold-blooded political operative for President Trump's reelection campaign.

(END VIDEO CLIP)

MURRAY (voice over): Schiff skewered Trump's insistence that he wasn't involved in a quid pro quo even as the President withheld security aid and a White House meeting from Ukraine while clamoring for investigations into 2016 and Joe Biden.

(BEGIN VIDEO CLIP)

SCHIFF: That's not something that comes up in normal conversation, right? Hello, Mr. President, how are you today? No quid pro quo. That's the kind of thing that comes up in the conversation if you're trying to put your alibi out there.

(END VIDEO CLIP)

MURRAY: The President's defenders meantime, awaited their chance to take the Senate floor.

(BEGIN VIDEO CLIP)

JAY SEKULOW, PRESIDENT TRUMP'S ATTORNEY: This whole fact that we're here is ridiculous. At the end of the day, I believe without question the President of the United States will be acquitted.

(END VIDEO CLIP)

MURRAY (voice over): Sara Murray, CNN, Washington.

(END VIDEOTAPE)

CUOMO: So how does it go so far? Where does it need to go from here? Joining me now Andrew McCabe, Asha Rangappa and Michael Gerhardt. So what is the task, Asha? The task is to make this case and change senators' minds. How much of this do you think is new to the senators in the room?

ASHA RANGAPPA CNN LEGAL AND NATIONAL SECURITY ANALYST: I would hope that it's not new, though we're hearing that for some of them, it is.

I mean, I personally think that you would have had to have been living under a rock, but maybe they had other jobs to do.

I think the piece that's going to be hard here for Democrats is explaining exactly how this was an abuse of power and why -- what the harm was that was being done.

One thing I didn't hear that was laid out today is exactly why requesting the announcement of investigation on the Bidens constituted help in an election. And it's because what he was trying to do with effectively run a disinformation operation, creating a specter of, you know, corruption and illegality over his opponent.

CUOMO: Because he didn't want the actual investigation.

RANGAPPA: He didn't want the actual investigation.

CUOMO: He just wanted an announcement.

RANGAPPA: He wanted the announcement.

CUOMO: I mean, he didn't care about corruption enough to go to his friends in the Senate to have it investigated or to his Attorney General and asked for it to happen. He wanted it this way.

RANGAPPA: Right and in the F.B.I., we call this perception management, right? This is kind of how you shape perception, you know Russia was doing, but this is kind of what he wanted to do and I haven't seen that aspect of it teased out so that whether it's the Senate or whether it's American voters understand how they were being duped, there was an attempt to dupe them in the upcoming election.

[01:05:22]

CUOMO: And the other piece that we haven't heard fleshed out yet, and again, they have a lot of time to go. But they also recycle a lot of the same articles and arguments today is one of the big push backs from the President's team is, but we gave them the aid. Well, why did you give them the aid?

Because if you were looking for corruption, and this was this good faith, look for corruption, you never got to the bottom of it. Why did you give them the aid?

ANDREW MCCABE, CNN CONTRIBUTOR: That's exactly right. They have never delivered a credible explanation as to why the aid was withheld. And in the same way, they haven't delivered a credible explanation as to why that withheld aid was ultimately released.

If it was all about corruption, what was it that you wanted done that you were holding the aid back? Presumably the investigation of the Bidens, although we all know that there's really no corruption motive there.

And so when they released the aid on September 10th or 11th, what reassurances did you receive from the Ukraine that they were going to take care of some internal corruption matters that cause you to enunciate it?

CUOMO: There was none.

MACCALLUM: Zero. Not one.

CUOMO: Let me ask you something here, Professor, the idea of the risk for Democrats, it seems like the goal right now is let's get it to a point where we can vote on witnesses and it is very hard for them to say no.

So let's say they say yes. Okay. How wary should the Democrats be of what they wish for? That they get a Pompeo, they get a Mulvaney, they get Bolton, hell, let's say they get all three of them, that they are risking being in a position like they were arguably during the Russian interference thing where they would say, if we get this one more witness, wait until you see this, and you don't get anything out of those people?

MICHAEL GERHARDT, CNN LEGAL ANALYST: Well, I think the way the Democrats are probably thinking about it is it's not really a risk. I mean, on the one hand, if they actually do get these witnesses, they may -- they may turn, although that's not likely. They may reveal some damaging things. Again, that may not necessarily be likely.

Whatever they say will be information, and that's really what justifies the Democrats asking for this. They're asking for new witnesses, and so Democrats can turn around and say, look, it's great we called them. We learn more. And maybe that stuff helps the President, maybe it doesn't.

So Democrats can play it either way, I think, it doesn't hurt them to ask for more evidence.

CUOMO: Arguably, the Republicans would -- see, we keep giving them whatever they want, and they never make the case. It's just a witch hunt.

Let me ask you something. So I was reading a couple of scenarios today that -- who is going to vote, who might vote or not, and that's what this is about, right? Where we get next week on witnesses. If it's 50/50. What happens if the vote for witnesses is 50/50?

GERHARDT: The motion fails.

CUOMO: It has to be 51/49.

GERHARDT: You need a majority vote, a majority of the people who are capable of voting that's the hundred senators.

CUOMO: The Justice cannot vote.

GERHARDT: The Justice -- the Chief Justice will not be able to break that tie in the absence of a rule that the Senate would have approved, empowering him to cast the tiebreaker.

CUOMO: So if it's 50/50, can they empower him at that time to vote?

GERHARDT: They might be able to do it if they did it ahead of time. They might be able to -- if they follow the rules and passed a rule that allowed the Chief Justice to break the tie -- that could happen.

Salmon Chase, when he was Chief Justice of the United States and presided over Andrew Johnson's impeachment trial, helped write the rules and he wrote into the rules the power to cast the tie breaking vote, so when there was a tie, he could break it.

It turned out the senators weren't real happy about it, and they started overruling him when he did that.

CUOMO: Rehnquist told the story, the former Chief Justice who sat and obviously presided over the Clinton impeachment, and he told the story about being shown around the gallery as a metaphor of how little power he had.

And he said, hey, how does the microphone work anyway? How do I turn it on? The sergeant-of-arms told him, you don't. We'll turn it on for you.

Now, in terms of this all leading -- do you think I'm wrong about that, that that's not what where the Democrats heads should be, which is getting to the witness vote, that they should just be thinking about making the case? The reason I jump to witnesses is they know what the vote is, Asha,

they know what the vote is right now, and I think the majority of people in that room know what they're being told right now, and they know what their votes are going to be. So what's the play?

RANGAPPA: Well, I think the witnesses are important, again, for this informational and educational piece for the public that's watching this.

Now, remember, precisely because we know the Senate -- at this moment in time we believe the Senate is going to acquit the President. That's giving him a green light to continue his election interference solicitation efforts. I mean, basically, that's what he's going to do.

The fact that he keeps saying it's a perfect phone call basically tells you that he doesn't see anything wrong with it. He is going to do it, so I think that that actually increases the need for these witnesses to come forward so that the American public can cast an informed vote in November 2020, based on the full knowledge of what the President did in this case.

If they want to allow it, then you know, they can do that at that time.

CUOMO: Let's take a break. It's a good question to end on. Also, it's one of the most powerful aspects of this and one of the most neglected ones, which is the Democrats theory is they had to rush this through, they have to do it before the election because this President may mess with the election because he has shown every intention to do so. How strong is that argument? Will it play into tomorrow? What else will? Next.

(COMMERCIAL BREAK)

CUOMO: All right, we have an important moment from today's argument by House Manager, Congressman Adam Schiff. He once again reminded all of us that no matter what side you're on, we, the American people don't have the full picture.

[01:15:07]

CUOMO: In this case, he was pointing to a cable that William Taylor, he is the top U.S. diplomat in Ukraine right now that he sent directly to the Secretary of State. Listen.

(BEGIN VIDEO CLIP)

SCHIFF: Taylor sent that cable in August 29th. Would you like me to read that to you right now? I would like to read it to you right now. Except I don't have it. Because the State Department wouldn't provide it.

But if you'd like me to read it to you, we can do something about that.

(END VIDEO CLIP) CUOMO: Taylor was then the top diplomat in Ukraine, now gone. So how

substantial is that argument and the others? The big deal that there's a risk this President would do something like this again?

Andrew McCabe, Asha Rangappa and Michael Gerhardt. Let's take this issue of, I can, we need witnesses, we don't. You believe witnesses are better for the Democrats to have, certainly better for us who want information to consume, be concerned and informed citizens, fine.

But politically put that hat on? Why is it better for the Democrats to have the witnesses -- and the documents?

GERHARDT: Well, it's a risk. It's a gamble. The Democrats are gambling that whatever witnesses they may get, will actually bolster their story, fill in blanks, be able to find pieces of paper or have witnesses testify about Taylor's notifying higher ups and the higher ups doing nothing. So that's the gamble. That's the hope.

That would be extremely damaging. As you run things up the, you know, the ladder, who's at the top? The President of the United States, and if those people around the President are protecting him, and not actually trying to correct this, that's a problem. So that's the fuller case they're hoping to be able to demonstrate.

CUOMO: What's the case of where witnesses may wind up being more than they'd hoped for in a bad way?

MCCABE: As the Professor says, it is a risk and the risk is this. Right now, the Democrats are fighting the good fight. They are trying to get the witnesses and the documents in to turn this into a legitimate trial, to put as much information is out there as possible.

The risk is that those witnesses show up and then don't deliver the sort of knockout punch that the Democrats are saying, you could get from a John Bolton, you could get from a Mike Pompeo if they were just forced to come in here.

If those witnesses -- first of all, no one knows what those folks are going to say. So you run the risk of putting on witnesses who you don't really know how they're going to answer the questions, and if they answer them in an unimpressive and unpersuasive way, you have -- you run the risk of the Republicans saying, okay, here we are. Now you had all your witnesses, and you still haven't proved your case.

CUOMO: Judge Rangappa was unimpressed with my argument in the break that I think that there is potentially more risk for Democrats to get witnesses for the reason that Andy is saying right now and not control what they're going to say and then be too impressive in defense of the President. And then fighting the good fight for witnesses and losing.

Just in terms of political optics, have they tried to do the right thing? Who knows what else is there versus I heard these guys, they didn't make the case.

RANGAPPA: Well, remember that a lot of that also depends on the specific line of questioning for which they are admitting the witnesses.

CUOMO: Yes.

RANGAPPA: So for example, I think it would be very hard based on what we already know from these e-mail exchanges with O.M.B., that Mulvaney would not offer something that was incredibly damning to the President. That he would actually be able to or would have to lay out the line of direction coming from the President to the withholding of the aid.

Bolton, a little bit more latitude, but again, if they're surgical about what they question him on, you know, a good --

CUOMO: Surgical? You've been watching this? Surgical.

RANGAPPA: I mean, a good prosecutor will make sure that they are drilling down on things where they know the answer, you're not going to ask a question that you don't know the answer to.

CUOMO: But you will be here because you don't know what these guys are going to say. Because they've never really put --

RANGAPPA: Well, they are not going to be pontificating about their general thoughts on the Constitution and impeachment. Like they will be there to provide information on a very specific angle. What they witnessed at a particularly -- like, what happened in this conversation? Why did you extricate yourself from this thing?

And you know, they can limit it to that, and I think the-tell with Bolton at least is that Trump is already, you know, saying, well, you know, I don't think we left on great terms or whatever. And, you know, I think that he's setting the stage for --

CUOMO: Savvy guy. Now look, you know, maybe the swing factor here is what do the people want? Every poll I have seen consistently shows the American people wanting witnesses, and there's a reason for that.

You want to judge for yourself. You do not want anyone, especially politicians telling you what to think about things, how big a factor is that?

GERHARDT: That's a very big factor, and that's again --

CUOMO: Sixty plus percent.

GERHARDT: Again, that's why the Democrats are asking for the witnesses. They know this is something the public supports. Keep in mind what the Democrats are saying repeatedly is we want a fair trial and we want really to investigate this more. That's the point of the trial. The point of the trial is to get more information.

They are not going to say this out loud, we think the more information we find is going to incriminate the President more. There's going to be something in there showing the President has directed the whole, but not for a policy -- not for a benign policy reason, but for self- interest. So whatever is likely to be there, as Asha said, there's really a

pretty good chance it's not going to be helpful to the President. So yes, let the Democrats decide with the American people, give us the documents, give us more evidence, and then we'll see what happens.

CUOMO: The wild card play for them other than the witness play is if we don't do anything now, if we didn't do it this quickly, he would do this again before the election, he would corrupt the election. How believable is that?

MCCABE: It's incredibly believable. We have every -- we have many, many reasons to think that that is exactly what will happen.

I mean, he ran for office the last time asking the Russians to find the infamous 30,000 e-mails which they obliged him by trying to do that very day. He told, I think it was George Stephanopoulos that what would you do if you are offered information from a foreign government? He readily admitted that he would take it and not report it to the F.B.I.

And of course, we have him on the July 25th phone call soliciting, extorting, influencing a foreign government to essentially meddle in our elections. So there's absolutely every reason to believe he would do it again.

RANGAPPA: And he keeps saying it's perfect. He has not acknowledged any wrongdoing at all.

CUOMO: Not a scintilla. Well said. Judge, thank you very much. Asha Rangappa, Andrew McCabe, Professor Gerhardt Thank you very much.

All right, so let's try to game this out a little bit. Today versus tomorrow versus what the defense is doing right now and how that will be reflected by what we see when they get their chance.

Let's start with this. What are their best arguments? You've heard them lay it out here in general. We will be specific with the G.O.P. perspective. Next.

(COMMERCIAL BREAK)

[01:25:52]

CUOMO: Now, there is one theory that what these argument is about that you're going to hear now from the Democrats and soon from the Republicans is targeting specific senators to keep them on board or to get them to change depending on which side we're talking about.

Question is, are they listening? Are they open? And what are the political calculus here for different senators and for the party in general? Okay.

Now, yes, we've been reporting to you how a lot of people aren't listening, and they're doing different things. But let's assume they are for a second, all right. Let's bring in Scott Jennings here to talk about the perspective on

what Republicans want to hear and don't hear and why. Thank you for doing this especially now. Really appreciate it.

SCOTT JENNINGS, CNN POLITICAL COMMENTATOR: Absolutely.

CUOMO: So the general argument that we expect is no crime. All right. Why does the Republican defense believe that that will work with the people? That the idea of people saying abuse of power doesn't have to be a crime and here it is with the founders. Here it is before. Why stick with that?

JENNINGS: Well, because they want to make the parallel argument that if there was no crime and all the Democrats really are complaining about are policy differences. They don't like the way this President operates. They don't like the decisions he makes. They don't like his policies, reviews on foreign aid, for instance.

And so because there's no crime, they're trying to criminalize policy differences, and they think that will hold water with a lot of Republican senators.

CUOMO: The idea of the history of it, the education on it, that the founders were talking about abuse of power and crimes against the public. You believe that that's just easy to overcome by swinging what people's common perception is, which is if there's no crime, there's no crime.

JENNINGS: Yes. And also, they're also banking on the idea that Democrats have been so rageful over this presidency for the last three years that they're going to try to portray this just an extension of what you know, they already see as just sort of blind rage against all the other things that he does that are non-traditional ways to make decisions.

CUOMO: If they had an Article of Impeachment of bribery, and say this was bribery. He held the aid until he got the announcement. He held the meeting until he got the announcement. He got rid of the Ambassador when the prosecutor asked Rudy to make that happen in order to get his help, it was a bribe. You think you'd be in worse shape?

JENNINGS: I don't know. Because you know, they went to the bribery for a few days. You know, there was some report that they had a focus group and that held water with their focus groups, and then they went away from it, for some reason.

I assume they went away from because they didn't think it was working with the American people, and so I tend to think less legally about these things, and more politically, and nothing they've done so far has materially moved the polling on this, the national mood on it. They've not convinced one single Republican in the Congress that they're right.

So I don't know that they would be in better or worse shape. I think they would be most likely in the same shape because folks appear to me to be relatively intractable about whether they think the punishment of throwing the President out fits the infraction no matter what you call it.

CUOMO: Polls suggest bad things for the President, right? We've got over 50 percent in most recent polling, thinks that he did something wrong and should be removed. Polls are a suggestion of a moment in time. Who knows who was asked? I know all the arguments. Some are good, some are not.

The idea that a third of your own party says, yes, he probably did something wrong. What does that mean to you? Sixty percent of the American people plus say we should have witnesses. Why do those matter or not?

JENNINGS: Well, on the general polling, I mean, I think he is a 50/50 President. I think his -- the numbers on impeachment are roughly what his numbers are on job approval.

You know, you have an opinion about Donald Trump if you're an American right now. You either want him in office or you don't.

And so I see them as very similar to the overall job approval number and he is split right down the middle.

On the witness question, I wasn't actually all that surprised that a fair number of Republicans wanted witnesses because a fair number of Republicans want all the witnesses. They want the Bidens. They want the whistleblower. They want to question --

CUOMO: How does the Biden -- how are the Bidens relevant to why the President withheld aid?

JENNINGS: Well to Republicans, they believe that the President is complaining about the Biden corruption as a legitimate thing to complain about, and we'll never know the depths of it until we actually get to question them.

CUOMO: But how you go to find out about the corruption is what this is about. An analogy that was offered earlier is, you know, you try to hurt somebody else and you want to call the victim in as part of the examination of why you hurt them.

[01:30:09]

CUOMO: You know, that's what the Bidens are here is theoretically for this case, they are the aggrieved party of someone he was trying to get for his own political purposes.

Let's say Hunter Biden was guilty of crimes. Let's say Hunter and Joe and everyone named Biden are all guilty of crimes. Does that make it okay to pressure Ukraine to announce an investigation into them instead of following the law you have with Ukraine? Going to the D.O.J. to have it investigated. Going to the Senate and saying you want it investigated.

All of which this President could have done and ignored in exchange for Ukraine merely announcing in which as we both know, politically, that's the stink. JENNINGS: Yes, well, I think if it were true that the Bidens were

proven to have done something wrong, a lot of Republicans would say well, this legitimizes what he did.

Now, I have argued many times that going outside the normal governmental chain of command as you suggest was the worst thing going about this whole impeachment for the President.

Deputizing Rudy Giuliani who is not elected, not appointed, not confirmed by the Senate, having all of these external actors trying to --

CUOMO: Lev Parnas.

JENNINGS: Yes. I mean --

CUOMO: Robert Hyde.

JENNINGS: I mean, as you suggest, a better way to have done this would have been to use existing government resources, say to your Attorney General, say to your --

CUOMO: Not abuse of your power.

JENNINGS: Say to your Secretary of State, what is the legitimate way for me to look into something that is -- you know, that I'm legitimately worried about? People tell me this is a problem. That would have been a better thing to do.

I think in hindsight, they would have probably had done that.

CUOMO: It also assumes nobody told him that. And if we want to talk hindsight for a second, what would you think, if or even if today, the President seeing now past midnight, the President came out and said, you know, I haven't said this before, but I'll say it now.

I did this the wrong way. I don't trust the State Department. I trust them more now. But I didn't trust them. I didn't think anybody would do the right thing. I was told that everybody is out to get me here in Ukraine and the State Department. So I had my own guy do it. And I don't know any of these other people that he was using, which isn't true.

But let's say he said it. I did it the wrong way. But I didn't do it for the reason you think. I didn't want to bribe anybody. I don't need their help to beat Biden. I just thought this was the fastest way to get it done. But it was the wrong way, I shouldn't have done it.

One, do you think he is capable of admitting fault? Anything? Ever?

JENNINGS: I mean, it's not the way he operates. I mean, he has apologized for things in the past. I'm specifically recalling the "Access Hollywood" tape during the campaign.

CUOMO: That is also the only thing that you recall.

JENNINGS: That's the biggest --

CUOMO: That he has ever apologized.

JENNINGS: That's the biggest -- that's the biggest moment.

CUOMO: Only moment you can think of.

JENNINGS: But you know, that's the exception, not the rule. The rule is --

CUOMO: It is the only time we've heard him apologize for anything and when asked about it, he said that I never had to ask for forgiveness from God because I've never done anything worthy of his forgiveness.

What I'm saying is, imagine if we'd be in a different place. No reason to speculate more than that. Except I'll say this, I'll be leaning on you more in the future. Good to have you tonight. Thank you for the perspective.

JENNINGS: Thanks, Chris.

CUOMO: All right, Scott Jennings, thank you. A big test coming next week will not just be for the people who speak to you, but the people who are working behind them -- Mitch McConnell.

How do these arguments affect his ability to control his caucus? How does what happens affect his move on witnesses? What does that mean? What does that look like? Next.

(COMMERCIAL BREAK)

[01:37:40]

CUOMO: The Democrats need four Republicans to crossover to have a simple majority. If that happens, then they could get witnesses. It doesn't put them anywhere near the threshold to remove the President. But this first step may come down to how much pressure moderate Republicans are feeling or are applying back at home and with the head of their caucus, also known as the Majority Leader, Senator Mitch McConnell.

So let's talk about this. We have Ron Brownstein joining me right now. I call him the Professor because he knows so damn much.

All right, McConnell's ability to hold arguments for witnesses from him, no, against witnesses, the best one is --

RON BROWNSTEIN, CNN SENIOR POLITICAL ANALYST: His best argument is that the, you know, the House should have had -- you know, should have had the witnesses themselves, and that the Senate's job is to judge the case that the House brought to them.

Obviously, that's a pretty thin argument on substance. It's a political argument fundamentally that Republicans will do better if they sweep this off the table as quickly as possible. CUOMO: He has a better argument than that, because again, that goes

to the President denying it as he said today, we have all the papers, we have all the facts or whatever he said.

BROWNSTEIN: Right.

CUOMO: You know, which kind of insinuated the whole problem here is that he's not allowing the right people and papers to be made available.

The best argument is probably we need to end this, Ron. We've got we got to end this because if we allow witnesses, this is going to go on for months. The Senate will be shut down. This is bad for us, because we know what the vote is going to be.

BROWNSTEIN: And yet, of course, it's not simple for the relative handful of Republicans in competitive races in tough states to simply sweep it away.

And as we talked about in the last hour, we're up to 58 percent of the public in the CNN poll saying the President abuse his power in Ukraine. In the Pew poll out today, over 60 percent said he definitely or probably has committed a crime while President.

And so for Cory Gardner in Colorado, certainly for Susan Collins in Maine, it is not easy to go back and say well, I didn't think I needed to hear more from people who are willing to talk about, you know, activity that almost 60 -- roughly 60 percent of the country believes was an abuse of power.

CUOMO: How do they sell that vote?

[01:40:05]

BROWNSTEIN: Well, I think they basically, you know, make the case that the House has not proved the case.

Look, Chris, the overriding reality here is that Senate -- the fate of individual senators is increasingly dependent on the view of the President and the parties in their states. These are becoming almost parliamentary elections, whereas I like to say the name on the back of the jersey matters less than the color on the front of the jersey.

2016, first time in American history ever, every Senate race went the same way as the presidential race in their state. There are only about half a dozen senators in each party representing states that have voted the other way in most presidential elections since 1992.

So most senators know their fate is going to be tied to whether Donald Trump wins their state, but in the hand -- you know, they're usually there are at least a few exceptions, and if you want to have any chance of running ahead of the President, you know, going down the line at a time when two thirds of the country is saying we should hear witnesses is a choice with some risk attached to it.

CUOMO: Some risk. But do you think the impeachment vote can beat you? BROWNSTEIN: I think it can contribute -- I don't believe any single

vote can beat you, you know, no matter what it is. I think -- but it can contribute to a sense among voters on whether you kind of share their values or not.

Look, you know, as we've said, the President's standing is probably the critical factor in the race for these senators, and as I said to you before, where we are now, is it a standoff, I think, in public opinion behind the tailwind that the President is getting from improving perceptions about the economy and the headwind he faces over widespread skepticism about his values and behavior as symbolized in this case.

You know, in the polling that CNN has out this week, 55 percent of the country say that they approve of his handling of the economy. Normally, you'd say that President would be cruising to reelection, but you know, they ran some numbers for me today, 29 percent of the people who say they approve he is handling the economy still say he abused his power in Ukraine.

Roughly a quarter of them say they disapprove of his overall performance and roughly a quarter say that they are going to vote for Joe Biden in a matchup for 2020.

We've never seen disaffection or defection like that, from voters satisfied with the economy against an incumbent President. There's just no precedent for that kind of, you know, kind of discontent among voters who are basically happy with the way the economy is.

And it is just an indication of how much this presidency and its prospects and the prospects of the Republicans who are tied to him kind of stands on a knife's edge between this contending forces of growing satisfaction with the economy and pervasive discontent over his behavior.

CUOMO: Ron Brownstein, thank you very much.

BROWNSTEIN: Thank you, Chris.

CUOMO: We've never seen anything like this trial so far in history. Why? Well, we've never seen a party in power try a President of its own. So it's going to be remembered. How will it be remembered? Two great minds take that on, next.

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CUOMO: All right, let's be straight with one another. It's too late to be anything else. The political reality, removal unlikely at best no matter what happens with witnesses. Why? This is about votes.

All right, so let's look at a historical perspective on what is going to matter ultimately when it comes to the process of holding a President to account, not the outcome, the process. Okay, let's bring in Michael Zeldin and Michael Gerhardt. Thank you

both for being with me. Professor, what have we learned about what resonates over time in these experiences?

GERHARDT: Well, one thing that we learn of course is that the Constitution matters, and there are different times in our history when the Constitution really takes the forefront.

When it's the topic of discussion in households, topics of discussion in newspapers and the media, topic of discussion in government, and people are concerned with what the Constitution says, and whether or not the Constitution can fix this problem or somehow speaks to this problem, and we are obviously involved with that right now.

CUOMO: Michael Zeldin, the interesting thing here is, if you look back in history, we really only have an example of three, right, because Nixon got out before anything really happened to him.

Andrew Johnson, oh, they went after him. They created that law to catch him, and they still couldn't get him removed. You know, they held by one vote both times and I know I've read about the theory that that guy was paid off, but whatever. They didn't get him.

And with Clinton, what you remember very well, boy, they went after him for nothing, basically, but they didn't get him and so there's a bad taste in the mouth when you look at it that way, and that is being projected onto this. Is that fair in your appraisal that this is the politicians going after Trump for things they probably do themselves?

MICHAEL ZELDIN, CNN LEGAL ANALYST: No, I think that this is a very serious endeavor that is undertaking -- being undertaken now.

I think this impeachment is probably the most serious of the three impeachments that we saw. And I think that any senator who does not vote for witnesses, in this case, to have a real trial will be remembered in history as dishonoring their oath to do impartial justice.

I think, Chris, there's no way of looking at the behavior of this President, as it's been articulated by the House Managers to date, to not understand that what he did here was just absolutely unacceptable constitutionally, legally and politically.

And those who don't want a real trial with real evidence to flesh out all of these facts will be remembered historically as not honoring their oath to do impartial justice.

I feel very strongly about the failure of the Senate to do what is right in this case.

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CUOMO: Well, we'll see what happens, but point taken. Professor Gerhardt, have we ever seen this where senators vote to acquit, but attached to it a statement where they say, look what this person that was really bad, but not enough to remove, but I want to be on record as saying it. And is that a remedy to the problem that Michael presents.

GERHARDT: There is a pretty substantial remedy for it. In fact, we saw it with President Clinton. There were 70 written and issued statements from senators, many of whom had voted to acquit him.

But in those statements, they just eviscerated him. They really talked about how bad his conduct was, but they also talked about what you just said. They talked about how it didn't rise to the level of being an impeachable offense.

One other thing to keep in mind, you mentioned all the different impeachments of Presidents which resulted in acquittals. That's partly because of the Constitution. In fact, it's largely because of the Constitution.

The Constitution makes removal extremely difficult. It requires at least two thirds of the Senate to agree to convict and remove. It is extremely hard to get the two thirds of the Senate to agree on anything, much less the most momentous decision they have to make.

So the system is in that sense rigged. It's rigged to result in a likely acquittal. It's got to be not just really, really bad stuff. It's got to be so bad that it gets people from both parties to agree.

CUOMO: It has got to transcend partisanship. Michael, please.

ZELDIN: So the thing I was going to say in agreement with Michael Gerhardt is that if at the end of this foe trial, there is no witnesses and then a straight party line vote to acquit, but the Republicans feel that this behavior was unacceptable, then they should offer a resolution of censure and they should censure the President for this behavior.

To let it be known that this type of behavior is unacceptable, legally, morally, constitutionally. For them to sit back and just write private letters of condemnation is a complete cop out and posterity I think will remember them as doing that.

CUOMO: But Michael, if they were thinking about what to do here, and they have an option of allowing the President to walk away from this, and that probably best ensures their winning in the next election cycle, not just in his race, but in some of their own. Why would they balance that with anything else?

ZELDIN: Because they are duty bound in this most solemn aspect of our Constitution to honor their oath to do impartial justice.

And if their sort of calculus is so self-centered as to say, well, all I want is to be reelected and never mind the Constitution, then, you know, let them record that vote and let history record them as having done what they did, which is, in my estimation, just not constitutionally permissible.

CUOMO: So in one way, this may be anomalous that this may be remembered differently, because of the circumstances and frankly, the President involved, but nobody knew anything about Andrew Johnson until we started talking to them about it.

And I don't say that in any way as criticism of you. It's that, you know, it was a long time ago, and it never even happened anyway, and it was something that you've learned in school and then forget.

So the test of time. Of course, I'm asking you to speculate here because we don't know what happens. But do you think this one gets remembered more/differently?

GERHARDT: I think it will, and it's partly because of the passage of time, which you've mentioned. Of course, the other critical thing to keep in mind is, with the present situation, it's on tape. It's videoed, it's recorded. There's paper.

There's more -- there is going to be more records of this than any other impeachment proceeding in history. So that alone makes it more memorable.

But the other thing I think that happens is that we're going to get more information. They're going to be more revelations that come up, and I think that's why when all is said and done, what's going to happen is if Republicans refuse to look at the evidence and don't issue any kind of critical statements about the President, and merely kind of let this pass and say it's the Democrats fault and everything else. They're going to look really bad in history, because they will have overlooked what I think as the evidence shows, which is misconduct by the President.

CUOMO: You think they'll vote for witnesses?

GERHARDT: I don't know the answer to that. I only know what I read. I think it's going to be close. I'm sure a very small number of Republicans are really trying to ask themselves a really tough question, do I follow my party? Or do I do something here, which is going to perhaps cause me some trouble and that's to call for some witnesses?

CUOMO: We've never seen a party try one of its own, Michael Zeldin. This is the first time. Even with Andrew Johnson, you had a combined ticket there with Lincoln and Johnson, right? It was a compromised ticket.

His party not even nominating him even though he got acquitted. How do you think that plays here in terms of party loyalty, and party loyalty being on the line here uniquely so?

ZELDIN: I think what we're seeing is that party loyalty is trumping constitutional responsibility. You know, in the independent counsel process, the thought always was you should have an independent counsel who is from a political party, different from the person who is being investigated, so you do not have this issue of protecting your own.

[01:55:15]

ZELDIN: Here, unfortunately, we have this situation. And they are it seems protecting their own over constitutional responsibility, and there's just no getting around that unless some senators find some level of conscience.

But I don't think that going to happen. Chris. I think in your conversation about witnesses, you may get permission by McConnell to let Gardner or Collins vote for witnesses, as long as he knows he has got 51, so they get this show vote ...

CUOMO: Right.

ZELDIN: ... that they voted for it, then he holds the party line. They get to run in their districts saying, I voted against it. But it's not honest.

CUOMO: And we'll see soon enough. Michael Zeldin, thank you very much. Michael Gerhardt as well.

Thanks so much to all of you for joining this special impeachment edition of CUOMO PRIME TIME. More news next.

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