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House Democrats Close Impeachment Arguments Against Trump; Republican Senators Are Angry Over Schiff's "Head On A Pike" Remarks In Opening Argument; Schumer: "Mr. President, Without A Fair Trial, The Value Of Your Acquittal Will Be Zero". Aired 9-10p ET
Aired January 24, 2020 - 21:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[21:00:00]
MANU RAJU, CNN SENIOR CONGRESSIONAL CORRESPONDENT: -- criticize himself recalled when he -- the Acting Department -- Director of National Intelligence testified before his Committee, and he talked about the Trump-Zelensky call and he said he was doing parody --
ANDERSON COOPER, CNN HOST, "ANDERSON COOPER 360": Right.
RAJU: -- when he was talking about that call. He gave a more fuller defense of his own actions, and I think it's been anticipation of what's to come in the days ahead, Anderson.
COOPER: Yes. Manu Raju, thanks very much.
We're going to do a -- that's it for us. The news continues. Want to hand it over to Chris for CUOMO PRIME TIME. We'll be back at 11. Chris?
CHRIS CUOMO, CNN HOST: Anderson, thank you very much. I am Chris Cuomo.
So, it is has now ended for the Democrats. They only get one chance at this. It's not like a typical trial where you have the prosecution, then the defense, then you have prosecution rebuttal.
But they had plenty of time, three days, nearly 24 hours, making their case. They used all of it. How did they do? Did they get the job done?
Let's bring in our power players. We do have Manu Raju, who's monitoring the scene. You saw him there at the proceedings. He is with us. But you see the people at the table. And we'll start with Jeffrey Toobin.
You've watched just about every minute of this. There is one question that will have to be answered. Is what the Democrats laid out, mostly in the form of Adam Schiff, do you think it was enough to persuade those who have open minds on the Right?
JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: In the best lawyerly tradition, let me not answer your question directly. Yes, it was enough. I thought it was an absolutely brilliant performance by Adam Schiff. I
thought it was really just almost old-fashioned in the strength of his oratory, most of it extemporaneous, especially towards the end. I mean, it was really, a remarkable performance, very substantive.
Do I think it will succeed? No, I don't. I don't think there will be four votes for witnesses. I don't think there will be anywhere near 67 votes to -- to -- to force the President out of Office.
But I thought Adam Schiff did as good a job as could be done, better than I thought -- that I thought he made the case better than the case could be made. But I don't think it's going to be enough.
CUOMO: Help me understand that. How did he make the case better than you thought it could be done?
TOOBIN: Because by -- particularly, at the end there, in -- in the last half hour of his remarks, I thought he anticipated all the arguments you're going to hear from the -- the -- the White House lawyers over the next three days, and convincingly refuted all of them.
And -- and also, I thought the way the -- all the House Managers went about their business, I mean, this was an enormously substantive presentation by the -- by the -- the prosecutors here. It was not, you know, except at the very end, you know, heavy duty on the oratory.
But, you know, the way they used the testimony, particularly the -- the audio and video excerpts that they used, the way they used the President's own words against him, which was by far, I thought the most effective thing they had done.
But the -- the way they used the documentary evidence that they had, obviously, they did not have all the evidence or even--
CUOMO: Now, how did they do with that issue of what they had versus what they did not have and why they didn't have it?
TOOBIN: Right. Well the -- you know, the -- they went in with the -- with an unusual challenge. They went in there saying, A, this case is overwhelming enough to force the President out of Office, and B, we need more evidence.
CUOMO: Right.
TOOBIN: We -- and -- and that is an intuitively difficult -- difficult argument to make. But I think they made it.
I mean, I -- I think given the testimony that they had before the -- in the Intelligence Committee, given the documents that were available to them, I think the -- the case for abuse of power and for contempt of Congress, which are the two articles, it's overwhelming. It is overwhelming.
The idea that the President did anything other than what he's accused of, the idea that he did not go to the President of Ukraine, and not just in that one conversation, but in an entire initiative, where they -- where he said "You are not getting the $390 million, you are not getting the meeting with the President unless you get dirt on Joe Biden," it's inconceivable to any fair-mind -- to any fair-minded person, I think, would not think that that trade-off you made, you know, was conducted.
CUOMO: So, what is your thought about whether or not, while it might not be enough for 67 votes -- I don't know that that was the goal. The goal, it seems to be, immediately, to get more witnesses, more evidence.
Do you think it was enough to push that vote?
TOOBIN: I -- I don't. I -- I think, you know, my rule for the United States Senate is "What Mitch McConnell wants Mitch McConnell gets."
And Mitch McConnell does not want witnesses here. And, you know, maybe he will give one or two Senators, like Susan Collins, a free pass to vote for -- to vote. But -- but will there be four votes?
[21:05:00]
I mean, Lisa Murkowski, who is clearly one that the -- the Democrats needed, spoke to one of our colleagues yesterday, and gave a very negative sense of where she is.
CUOMO: Did he do anything curative on her point? Her point was, as we all remember, Murkowski from Alaska said, "The House should have done this. They are asking us to do their job."
Did Schiff et al. do a good enough job curing that concern?
TOOBIN: I -- I thought the way he laid out, again, this was about 40 minutes ago in his remarks, what it would take to go to court on -- on any of these witnesses.
You know, the -- the argument that Murkowski and others have made, and you'll certainly hear it a lot from the -- the White House lawyers coming in, is that, "Well, they should've, you know, challenged the President in court, and tried to get, particularly, John Bolton's testimony," the former -- former National Security Advisor.
He went -- Schiff went through the legal processes involved. And it would've taken us through November, no -- no question, through the election.
And what's different now than was different before the House, and this is very important, is that Bolton said "I will testify before the -- before an impeachment trial." He didn't say that to the House.
CUOMO: Right.
TOOBIN: And the fact that the Senate appears unlikely to accept Bolton's agreement to testify, I think it's -- it's a huge difference between the House and the Senate. But I think it gives -- it gives Senators an excuse to vote "No" on witnesses. CUOMO: Yes, Bolton, they could have done more work on him also that he deigns to find when he decides to be a patriot and follow the law.
TOOBIN: Yes. They--
CUOMO: But they had bigger fish. So, basically, you've outlined three components for a little bit of purposes. You have proof, you purpose, you have passion. They went heavy on proof.
The idea of purpose, John Dean, thank you very much for being with me tonight.
JOHN DEAN, FORMER NIXON WHITE HOUSE COUNSEL: Pleasure.
CUOMO: Because of your experience with Nixon, Hogan made the similar argument then, that if the President, the Executive, is allowed to keep from Congress that which might be damning, or incriminating, or unfavorable, then, this power is lost.
The same argument was made tonight. In fact, they used sound from Hogan during the proceedings with Nixon. Persuasive then, and what about now?
DEAN: Persuasive then and real today, as it was then. It's more than an argument. It's a fact.
You lose the power to compel the Executive. And the Executive can indefinitely defend itself, so unless -- unless they do literally go down Fifth Avenue and shoot somebody, where you have other outside evidence.
Larry Hogan was the first Republican to break against Nixon. So, he -- he has a special place in my heart he has actually.
I think that -- I think that Schiff was very effective, tonight, in really covering all the key points that are going to come up in the arguments we're going to start hearing tomorrow.
And I think he's somewhat pulled the sting out of those arguments or made the audience, and certainly the Senators, will be looking for the very points he made. And so, he's -- he's, in a sense, put them in boxes on each of their arguments--
CUOMO: So--
DEAN: --and make -- they have big a hurdle.
CUOMO: So, Jeffrey has laid out that they did a better-than-expected job, the Democrats, with laying out that we have enough proof, while also arguing alternatively we need more proof. That's tricky.
The idea of purpose, what happened with Nixon was then you had a cascade effect. Hogan and then others started to see, "Boy, this really is obstructionist."
DEAN: It was slow. No, it was slower. CUOMO: So, how slow, in -- in the context of whether or not you see any sign of anything like that here?
DEAN: I -- what -- what's in -- what -- what was the final breaking the dam for Nixon was really the smoking-gun tape.
In fact, the -- the vote on the obstruction of Congress was 28-11. A 11 Republicans didn't go. About 10 did. So, that -- that was the last one. It was the weakest of the articles, of the three articles, against Nixon.
The articles had already, really, come out of the House. The House had voted. And they were on their way to the floor when Nixon resigns. So, what happened is the leading conservative on the Committee heard the smoking-gun tape, Chuck Wiggins.
CUOMO: Right.
DEAN: He said "This is obstruction of justice and this is a mammoth lie. He's lied to us all. And I'm going to go back and tell the -- my Conservative Caucus, we got a -- this is obstruction."
CUOMO: So, there was a massive lie that literally shook the foundation of what they thought they knew.
DEAN: Right.
CUOMO: And, obviously, I have all of you here because I need you, so exchange as you will. They used you also, Professor, on this same point of point of purpose. There are things they didn't mention today that seem to dovetail to what each of you have laid out.
[21:10:00]
In my hand, I have a bunch of correspondences, back and forth, between this Belgian guy, who we don't know, who was supposedly surveilling, or faking, surveilling the Ambassador that was sent through this lobby creature from the Trump Hotel, Hyde, to Lev Parnas. They haven't seen it. They haven't reviewed it. They don't even know what it means.
Today, there was reporting, Professor, that the President looked at Lev Parnas. Lev Parnas reported to him the problem with the Ambassador is she's saying you're going to be impeached, and for everybody to wait, not to do anything.
And he said, "Get rid of her. Fire her." The President looked America in the eye, looked these Senators and promised them he didn't know Lev Parnas. He doesn't know what he does. That tape proves he lied.
As you teach in your classes, "falsus in uno, falsus in omnibus," if you are lying about the seminal fact of knowing one of the key figures, you must be assumed to be lying about it all.
They didn't even discuss it. They don't even know about it. Is there anything impressive enough to shake them free? MICHAEL GERHARDT, HOUSE IMPEACHMENT HEARING WITNESS, UNC LAW PROFESSOR: Well everything we're hearing is that the answer to that is no. What -- what I --
CUOMO: Without even reviewing it. See, that's the trick--
GERHARDT: But without even reviewing it.
I thought one of the things that Congressman Schiff, and certainly, all the House Managers were trying to do, throughout, but Congressman Schiff, near the end, really was trying, almost comprehensively and forcefully, to do this.
And, that is, to give the Republicans nowhere to hide. He was trying to take away every possible place they could go to hide and justify their vote. So, you see he presented the facts.
The facts included the fact that President is not a man of his word, as this Counsel said. And that's not news to anybody who sits in the Senate right now. The tapes, the videos, everything points in one direction. So, the facts are not going to help them. Take that away.
What about history? Well history's not going to help them either because if you look at the history of impeachment, it really does support using abuse of power as a basis for impeachment.
So, what else is left? Schiff said, "What about patriotism?" He really went hard on that, as well, and said -- so, he was taking every place they could go, to try and hide behind, to justify their vote to acquit.
And what he leaves them with, I think, is essentially their loyalty to the Party and may some amorphous things we'll probably talk about in a minute like Executive privilege, which I think are being abused here, but their -- their -- it's harder for them to hide.
TOOBIN: Also, today, the -- the -- the focus today was on Article Two, which was the -- the -- the article that says obstruction of Congress.
And -- and, again, today, I thought the point that was -- that was brought home so well was that if you say what the President has done here, in terms of not responding to any document requests, any subpoenas, any permission to -- for witnesses, you are -- and -- and if you say that's OK, you are essentially neutering the impeachment clause itself because Congress can investigate the President if the President completely refuses to cooperate.
And that's a chilling thought. I mean, that is the -- the -- you know, I'm not fond of, you know, sky is falling and, you know, Chicken Little type analogies.
But, you know, if the President has absolute freedom to refuse to cooperate, in any way, with an impeachment investigation that deals with his conduct as President, how can you ever impeach a President?
CUOMO: Is that what has happened here, you think? TOOBIN: Well, I think that's -- that's -- that's -- if the -- that article is voted down, as it certainly will be, I think it is. I think it's that -- that's a chilling thought.
Independent of the abuse of power, just -- just the -- the procedural aspect of a President saying "I'm not going to allow an impeachment investigation," that's a chilling thought.
DEAN: Another--
GERHARDT: I -- I wanted to add--
DEAN: Another chilling idea.
GERHARDT: Sorry.
DEAN: It was a very effective argument when they pointed out -- it was Schiff that said, it could be you, like me, who is attacked by this President, when talking about Yovanovitch, how she had been attacked by the President. And it made me think about everybody in the media.
I've been attacked by the President. I don't know if you have been attacked by him. And I've been attacked by another President, and it's not pleasant. And there's enormous power in that pulpit.
CUOMO: So, here's what we have. Professor, you're next. I want to take a break.
It is told to us that this may be the most important night until the actual voting because these GOP Senators are going to get phone calls tonight before this defense starts to see where their heads are, where their hearts are, and what they need.
That is interesting to get insight into because that's the next phase, and it starts tomorrow. What an impressive task for these men and women to have to hold. And tonight, it really starts. They really have to start thinking about what matters to them.
So, let's take a break. And when we come back, let's figure out where we're all headed, together.
[21:15:00]
(COMMERCIAL BREAK)
CUOMO: Obviously, like everything in the law on politics, you can argue it two ways.
But it's hard to say that Adam Schiff and the rest of the Democrats were not surprisingly effective. And that means that this is not a story about them succeeding or failing. The onus is not on them. They did their job.
It's on the Republicans to justify not responding to clear facts about what happened, why it happened, and how they've been lied to, and how they've been closed out by the President in this process. So, let's see how that process is going, that rationalization by Republicans. Manu Raju is up there.
What are you hearing, because unless you reject the premise, the Republicans are the ones who are going to have to explain their position? The Democrats had the proof. They had the purpose. They had the passion. This is about the Republicans now.
RAJU: Yes. And they're waiting to hear what the President's defense is, and expect a lot of them to get behind what the President's team will say, starting tomorrow.
[21:20:00]
But I can tell you, Republicans who are coming out of the chamber right now are expressing their concern, their outrage, if you will, to comments made by Adam Schiff, at the end of his remarks, when he was referring to a report by CBS News, saying that the White House had warned Republican Senators that they cross the President on impeachment, this -- their heads would be on a "Pike."
At -- when I was in the chamber when Adam Schiff said that, Susan Collins, for one, who is a key swing vote, she shook her head repeatedly. She said "That's not true. That's not true." Other Republican Senators did the same.
And just moments ago, Lisa Murkowski, another Senator we are watching very closely, who has not ruled out supporting subpoenas for witnesses, came out, and she told reporters, "I thought he was doing fine," she said -- she said she thought he was doing fine until the "Pike" comment.
And this is when she said, "That's where he lost me." Now, what does that mean for votes? We don't know yet.
She -- she didn't say if she would oppose witnesses for a vote -- subpoenas for witnesses, for documents. And we don't know if the four votes are there for getting to that point.
Other Senators, including Rob Portman of Ohio and Shelley Moore Capito of West Virginia, neither of them would comment about whether they would go forward, support subpoenas, saying that they needed to hear the President's team first.
But it's pretty clear to the -- Adam Schiff, towards the end of that argument, did not make the Republicans happy.
Now, it's similar to what we heard earlier in the week when Jerry Nadler, the House Judiciary Committee Chairman, suggested that the -- the Republicans' opposition to moving forward on subpoenas for witnesses and documents amounted to a cover-up, suggested it could be treason -- treachery.
And that angered Republicans, too, including Lisa Murkowski, at the time. The next day, she came out and criticized that comment as well. Now, the other side of the coin say, well maybe Republicans are just simply looking for an excuse to vote against these matters by pointing to something that was maybe not a bit off -- maybe a bit off color, not out of line of what the criticism is leveling on both sides.
But nevertheless, that is what they're pointing to right now. And this is a crucial moment, Chris, as you know, because Mitch McConnell needs every vote he can get to make sure he does not lose more than three votes and ends this trial as soon as next week.
And, at the moment, it appears the Democrats don't have those votes. They still have some work to do, Chris.
CUOMO: Well, all right, hey, Manu, thank you very much.
What have you got?
TOOBIN: Can I -- can I just say one thing?
CUOMO: Manu?
TOOBIN: Give -- give me a break. I mean the idea--
CUOMO: Oh!
TOOBIN: No, as usual, Manu is like dead-on. I'm sure, you know, he -- he is exactly right in, you know, these poor Republican Senators getting the vapors because Adam Schiff was too mean to them.
But the idea that they were going to vote for witnesses but because Adam Schiff said a mean thing, he -- they -- they -- they're not going to vote for witnesses. I mean I just--
GERHARDT: They may have learned--
TOOBIN: --think that is just--
CUOMO: Go ahead.
GERHARDT: They may have learned something from the President of the United States. And that is to say, if you can't defeat a message, if you can't come up with facts as an alternative, just go after the messenger, just demean the messenger.
TOOBIN: Yes, yes.
GERHARDT: So, if -- if the Republicans are looking for -- I said earlier "Nowhere to hide." I was maybe slightly mistaken. There's one place they can go, which is they can do exactly what they're doing, which is say, "Oh, I'm going to blame Adam Schiff for my vote to acquit."
TOOBIN: Yes.
GERHARDT: Yes. CUOMO: But here's the problem. And -- and you guys weigh on in this. We also have Asha Rangappa, and Andrew McCabe, listening by. We'll bring them into the conversation now. Thank you for joining us as well.
The idea of perfunctory deference, "I need to listen to the other side," that sounds good. I say it's inaccurate in this case because whether or not you need witnesses is not a function of what the defense is going to put out.
It is solely a function of what the prosecution here, the Democrats, said they need, Jeffrey. If you're going to vote for more witnesses, it's going to be because they need them.
The idea of the defense is going to prove to you that, you don't need them, is not satisfactory here because of course they're going to say you don't need them. The threshold for the Republicans, they can say they're upset about the "Head on the pike."
If they're surprised to have heard that now, they're not being honest. We've all been--
GERHARDT: Yes.
CUOMO: --hearing it for weeks. It's been delivered in subtle forms and direct forms.
And if they want to push back on that, that's fine. But they will still have to explain why they don't vote for the most obvious thing here, which is "I want to know what there is to know."
TOOBIN: Well, and -- and, you know, I think, you know, Democrats are sometimes not very good at messaging. But they have a very clear message here, which is "This is a trial. Let's hear the evidence," I mean, like, that's not a complicated thought.
And the idea that the Senate is somehow limited by what the House -- what the House came forward with, I mean, that's, first place (ph), logically not true and, as the Professor will inform us, is historically not true.
GERHARDT: Completely untrue.
TOOBIN: So, the idea that they are going to vote without hearing any new evidence at all, I mean, it's -- it's outrageous on its face.
CUOMO: Asha, Asha Rangappa, let me get you in here on this.
The idea of the Republicans didn't like what they heard at the end because it made it seem like they were being strong-armed and they said "No, none of that's true," and that may be, as Murkowski suggested, "They lost us on that," do you buy that as a rationale?
[21:25:00]
ASHA RANGAPPA, CNN LEGAL AND NATIONAL SECURITY ANALYST: I don't buy that because there's a fundamental difference between the second article of impeachment and the first one. And it goes to the difference that we have in the law between substance and procedure.
The first is about the facts and whether it applies in this particular case as a violation of -- of the law. But procedure, here, is really about Congress' power, vis-a-vis the Executive branch. This is about their ability, as an institution, to check the Executive branch.
Whatever they think of the substance of the arguments or the, you know, the claims made by the House Managers, what they are really voting on with the second article is "Do they want the ability to be able to have oversight, especially, in the zenith of power in impeachment over the Executive branch, or do they want to cede that," including, by the way, to future administrations, which may be Democratic administrations who will be able to marshal the same argument.
And so, I don't buy it at all. It's a very weak argument. And it's basically saying "We don't want to do our job or preserve the power of our branch of government."
CUOMO: All right, let me take a quick break. When we come back, it is assumed that this is it for the Democrats. You won't hear from them again. It's not true. There is going to be another phase in this that we haven't talked that much about.
We will, when we come back, because it will be very important, because the defense is going to come out now, and it's going to say things, many of which will demand rebuttal.
How can that happen? We'll lay it out, next.
[21:30:00]
(COMMERCIAL BREAK)
CUOMO: The Democrats have made their case.
The big question seems to be how do you avoid the obvious? How do you avoid the proof of what clearly happened here, why it happened, and what it means to the ability of Congress to check the power of the Executive?
Now, we say it's about a few Republicans. But, really, all of them are going to have to justify their answer.
And this is supposed to be the most collegial part of our government. They're supposed to talk, exchange, try to be better. So, let's bring in Rhode Island Democrat, Senator Sheldon Whitehouse.
Senator, thank you for joining us, appreciate it on such an important night. First, what was the take, from your perspective, and of your Caucus, for how Schiff concluded the argument?
SEN. SHELDON WHITEHOUSE (D-RI): I think that Chairman Schiff's presentation, through this very long ordeal, has been at the very highest level of legal advocacy.
He has marshaled an imminence amount of information, extremely well, and effectively. And I thought that last night's closing was oratory for the ages. So, I give him nothing but props.
I think that if you are a Republican, and you're looking at a really damning case, that you have no counter to, and where you're sitting on lockers full of evidence, and not allowing it into the trial, you are desperate to find an outrage off-ramp.
And they will find something outrageous in parts per billion in order to seize the outrage off-ramp and get away from the damning case that has been made on the substance.
CUOMO: Isn't the outrage against them, though, Senator, that you have a President who's lied to your face about who he knows and what he knows, that your Congressional powers are obviously being subordinated to the wants of the Executive.
Have you seen any of that betrayed on the looks or any exchanges with any of your Republican colleagues?
WHITEHOUSE: I think there have been a lot of uncomfortable moments for them through these days. And I thought that Adam's presentation, last night, had a lot of them very thoughtful and pensive about the position that this President has put them in.
I mean, we really have a battle here between truth and falsehood, and right and wrong. And this President is demanding that they follow the path of falsehood and wrong or face peril.
CUOMO: What do you think happens next?
WHITEHOUSE: Well, the House will bring on its case.
I expect it looks a lot like "Democrats' bad. House bad. Schiff bad. Grievance! Grievance! Grievance! Grievance! Grievance! Nobody deserves a fair trial here." I think that's going to be basically their outline of the case.
We'll be watching carefully to see if they improve in veracity on what they said the first day when we were arguing the motions. But that's my guess for what they do. It's going to be an exercise in distraction and dissembling.
TOOBIN: Senator, it's -- it's Jeff Toobin here.
Can I ask you a question about what's an impeachable offense? That's -- that's going to be a big issue coming forward. You're probably going to have the pleasure of hearing -- hearing from Alan Dershowitz about this.
Do you think you'll--
WHITEHOUSE: Which Alan Dershowitz?
TOOBIN: Well--
WHITEHOUSE: The one who thinks it is? Or the one who thinks it isn't?
TOOBIN: Well the -- well what -- what about the argument of an impeachable offense can only be a criminal offense to be a high crime and misdemeanor? Do you think that's something your Republican colleagues are going to agree with?
WHITEHOUSE: Well--
TOOBIN: Because that's the position that's been put forward by the -- the President's lawyers.
WHITEHOUSE: There are two things wrong with that argument. The first is that it has no basis in constitutional language, in constitutional scholarship, or in law. It is something that has been invented by them for this proceeding.
The second thing is that if you charged Article One and Article Two in criminal court, if this were a criminal proceeding, and you were seeking for a judgment under the criminal law, the elements that they have charged amount to crimes.
The solicitation of this fake investigation, a thing of real value for Donald Trump, is a solicitation of a bribe under federal criminal law. The obstruction of Congress is obstruction of justice, under federal criminal law. You can go to the statutes and see that.
You plead it differently in a Senate impeachment because it's a constitutional case, not a criminal case. But to pretend that there is not criminal activity embedded in the case that has been proven is just false.
CUOMO: Senator, thank you so much for giving us your take. There's still a lot of task to be done going ahead. Good luck in the discharge of your duty.
WHITEHOUSE: Thank you.
[21:35:00]
CUOMO: All right, be well, Sheldon -- Senator Sheldon Whitehouse.
Now, let me bring in Andrew McCabe for a second.
Just to give people some context on how unusual this is, Andrew, the idea that, "All right, we're going to make the prosecution here, but the defense has kept us from having the primary witnesses, and the defense won't let us have any of the primary documents, but we're going to lay out the case anyway," have you ever heard of anything like that happening in criminal law?
Obviously, the answer is "No." How do you overcome that in politics?
ANDREW MCCABE, FORMER DEPUTY DIRECTOR OF FBI: Well, not only is the answer no, Chris, but it's actually one step worse than that. They've -- they've held on to that evidence. They have -- they have refused to comply with the subpoenas and the requests for evidence.
And now, they are going to turn around and blame the House, and the House Managers, for failing to do their job by getting that evidence through legal processes in the impeachment proceedings.
So, it's -- it's even worse than just not handing it over. It's not handing it over and then blaming them for not getting it.
As any first-year law student can tell you, the question of whether or not evidence or a witness comes into the trial is if that evidence is considered relevant and -- and it passes the test of not being more prejudicial than it is probative.
There is absolutely no doubt that on the facts that we're dealing with here, both the witnesses and the documents that the House Managers have requested would be, unquestionably, admitted in any -- in any normal criminal trial at the federal or state level.
CUOMO: Hey, Jeff, are you surprised that there isn't more bribe talk? We went through this earlier when they were doing the quid pro quo and people were trying to make that confusing when it isn't. How is this not a bribe?
TOOBIN: Well that -- you know, I actually was surprised that, you know, the -- the -- the constitutional language is "Treason, bribery, or other high crimes and misdemeanors," so bribery is specifically mentioned in the constitution.
But in the -- in the articles of impeachment, they only speak of high crimes and misdemeanors. They do not use the word bribery--
CUOMO: Right.
TOOBIN: --which was somewhat surprising to me.
I guess they didn't want to get bogged down in the elements of -- of the crime. But I -- I do think it was a mistake because it is obviously something the Framers were specifically concerned about.
And, as Sheldon Whitehouse, I thought, laid out, very convincingly, this has all the elements of a bribe.
DEAN: But, of course, that language was written before they had a statutory bribery.
CUOMO: Right.
TOOBIN: Right.
DEAN: It was -- it was a common law bribery.
CUOMO: But it's even worse if you go on common law bribery.
GERHARDT: Yes.
CUOMO: It's even more obvious. You know, at least with corrupt intent, and how we see it in the federal statute, as you all know brilliantly well, it can get a little tricky, in terms of articulating intent. You don't even have that problem here--
GERHARDT: Right.
CUOMO: --in terms of going back to the Founders.
So, in terms of how the Democrats feel they did, how they are positioned, let's get to the one who should know best, the Minority Leader in the Senate, Chuck Schumer, Senator, of course, from New York.
SEN. CHUCK SCHUMER (D-NY): Hi, Chris.
CUOMO: Senator, thank you for joining us--
SCHUMER: Sure.
CUOMO: --on such an historic evening. How do you believe that your side presented the case?
SCHUMER: I think they did a fabulous job. They were strong. They were comprehensive.
And something that's kind of interesting, when you get into the granularity of it, it is even stronger. I mean I knew all these facts, and had studied this for a while, but sitting there for 24 hours, and getting it all laid out piece by piece.
And I'll say one other thing, and I don't know where the Republicans will vote. We still have eight to 12 Republicans who have not -- who have not commented on witnesses and documents negatively at all.
But when they -- for the Republicans, it's really the first time they've heard all this. I mean, most of them get their news from Fox News, which is, at best, very incomplete, leaving out the strongest parts of the case and often distorting.
So, you never know in these things, Chris, how things happen. But they made a -- a fabulous effort.
And I'll tell you one thing. The conclusion on witnesses and documents, as you know, four weeks ago, I wrote the letter to Mitch saying witnesses and documents. And I don't know how many Republicans will get on it. Maybe we'll get four. It's a tough road, but it's not out of the question.
But we have won the American public over on this. And they are overwhelmingly, the people are overwhelmingly for the truth, a fair trial, and they know that that means witnesses and documents. You have now close to 70 percent of Republicans for it.
CUOMO: Yes.
SCHUMER: And you know that.
CUOMO: Yes. You have high-60s--
SCHUMER: The Republican rank and file never--
CUOMO: --and over 70 in the most recent poll that people--
SCHUMER: Yes.
CUOMO: --want more because it's obvious you guys have not had the people at the top of the food chain, and the documents that are necessary. Just today--
SCHUMER: You got it.
CUOMO: --we had reporting come out that the President, who is -- told everybody to their face he doesn't know Lev Parnas, he's reportedly on tape interchanging with Lev Parnas--
SCHUMER: Of course. Yes.
CUOMO: --about the goal of the mission to get rid of the Ambassador.
SCHUMER: You bet.
CUOMO: How do you not want to know more?
SCHUMER: Yes. And so, look, you never know how -- how these things are going to happen. These were powerful arguments. This is very serious stuff. You can feel the weight of history in that room, to a decent extent.
[21:40:00]
And, you know, the day before healthcare, we thought we'd lose. And, all of a sudden, a few people rose to the occasion.
There are two or three Republicans who I think have a greater than 50- 50 chance to vote for some witnesses and documents. And we may get a few more. Who knows? Who knows?
CUOMO: Now, well -- well the reason I'm very happy to be talking to you tonight is because if anybody knows, you do. You know, recently, I think people have forgotten your reputation for knowing people on the other side of the aisle, and having discussions with them.
What does your gut tell you, Senator?
SCHUMER: Well, my--
CUOMO: Do you think that the pull of the proof is more than the pull of this President?
SCHUMER: That is a tough question. We all know that the President wants a 100 percent loyalty, and he can be very vindictive when he has to be.
We also know that people want to be where their publics are at, especially, because I think in their hearts, almost all of them know -- not all of them -- but about two-thirds of them know that we are right.
So, I can't give a prediction. We've always known it's going to be an uphill fight to win. We've always known that Mitch McConnell will not help us one bit, as this resolution that he put in showed.
But we also know that we have a chance to get we only need four Republicans and we have a chance. I would say is it more like than not? No. Is it out of the question? No.
CUOMO: Well, just to put the stakes in a little bit more stark relief--
SCHUMER: So to speak.
CUOMO: --you're saying, "Hold your head high."
SCHUMER: Yes. We should be holding our heads high.
CUOMO: But the report is--
SCHUMER: Let me say--
CUOMO: --that the President said "I will put your head on a pike if you do not side with me"--
SCHUMER: Yes.
CUOMO: --"on this." Now, Republicans are saying, "Oh, no, no, he didn't say that." But it sounds exactly like what he would say.
SCHUMER: Look, I don't know--
CUOMO: How do you overcome that?
SCHUMER: Well I don't know if it's true or not.
But, every day, our Republican colleagues, they don't want to talk about witnesses and documents. They don't want to talk about a fair trial. And, frankly, as Adam Schiff outlined tonight, they really don't even want to talk about the facts of this case because they're irrefutable.
So, they come up with a new diversion every day. Remember, it was Nancy and how dare she do the pens? And then it was something Jerry Nadler said the first day. Yesterday, they said "They've given us nothing new."
Of course, when we say "What about witnesses and documents, new evidence?" They say "No." Tonight, it'll be this pike thing. I don't know if it's true or not. But I do know this.
I can stand here tonight and we can wait and wait and wait for a Republican who will come by and refute the argument that there should be witnesses and documents. And we'll be here till -- till the sun rises tomorrow morning.
CUOMO: Nobody wants to talk about it -- ahead.
SCHUMER: We won't.
CUOMO: What did you see in the room when you looked at your colleagues from the other side?
SCHUMER: Well, there are certain speakers who were quite compelling.
I mean, the greatest of these was, I think, Martin Luther King. You know, he forced America to listen to him even when people didn't want to hear it when, you know, bigotry had been swept under the rug for a 100 years.
They, when Adam Schiff gets to his closing remarks, all three nights, the Republicans are looking at him and listening. Much of the time, they're talking to each other, they're looking down.
They don't want to hear this stuff because they know it's uncomfortable the way it points out how terrible their President has been on so many different things. But when Schiff talks, they listen.
And, as I said, I don't -- you know, this is a weighty moment. I don't know how it will sit on the shoulders of everybody. But I'll tell you two things we've accomplished.
First, the truth will come out. Maybe it'll come out after this is all over but it'll come out.
But, second, if, let's say they don't go for witnesses and documents. All of America knows it's been an unfair trial, and the value of an acquittal, which President Trump so prizes, Mr. President, without a fair trial, the value of your acquittal will be zero.
CUOMO: As guys from Brooklyn, like you, say, "The inside of a doughnut."
SCHUMER: You got it.
CUOMO: Senator Schumer, thank you very much for your candor.
SCHUMER: Thanks, Chris.
CUOMO: And for giving us a sense of the stakes and where you are tonight. Thank you, Sir.
SCHUMER: Thank you. Take care.
CUOMO: All right, let's take a quick break here. So, look, the stakes are very high. No pun intended.
Look, the President said that he didn't say it. He threatens people on a regular basis, whether you're in the media, you're on his side, or you're against him, there's nothing surprising about that. How will they process this? How will they deal with what should be obvious, which is what is obvious to you? 60 -- 70 percent of the American people say "I don't know about acquittal. I don't know about removal. But I know I need to know more than I know right now."
How will they deal with that? We'll get into that, next.
[21:45:00]
(COMMERCIAL BREAK)
CUOMO: All right, I'm back with the Dream Team here, John Dean, Professor Michael Gerhardt, Jeffrey Toobin, Andrew McCabe, and Asha Rangappa. All right, so let's start framing where the defense starts.
Asha, the idea of how they handled it in the first place during the amendments, there was a lot of -- let's use a fancy word for not telling the truth, "Dissembling," by the President's defense team in that first phase. What kind of hole are they in going forward?
RANGAPPA: Well, I don't think they have a defense of the facts, so they have two options in front of them.
One is that they can dissemble, as you said, and try to misconstrue or re-characterize the facts, or they can try to argue the law.
And I think this is what you will see from Alan Dershowitz, tomorrow, is to suggest that this is not an impeachable offense that it's the "Even if" argument that you make in the law that even if you accept all of these facts as true, it is not actually a violation, and we have to let him -- we have -- you must acquit.
And so, I think those are their two options. I do think that with the dissembling, that's a big problem when you are a lawyer, and particularly when you're in the well of the Senate.
I -- you know, as a -- you know, as a lawyer, that's a violation of your professional responsibility, but I'll just leave it there.
CUOMO: Well the "You must acquit" went along with a glove that did not fit. And I don't know that he has the glove here, John Dean, in terms of what they're going to be presenting. Now, the Chief Justice is there. But he's not going to check them.
DEAN: No.
CUOMO: The other side can't object to what they say. But the idea of how they use or abuse the facts, how do you think that plays out going forward?
[21:50:00]
DEAN: Well, I think that the Senators are sophisticated enough now that if this dissembling does continue, as it did in that first brief part of the amendment section, and they stretched the facts there, and -- but they were checked by the -- by the -- the Democrats, the House Managers.
That's not going to happen tomorrow. So -- but I think that there's enough general knowledge that if they push that too far, they'll lose their credibility with the--
TOOBIN: Well but see they--
DEAN: --with the Republic.
CUOMO: Go ahead.
TOOBIN: --they have a whole ecosystem that will support them regardless of what they say.
DEAN: Well that's true.
CUOMO: How so?
TOOBIN: Well the -- that Fox News will -- will ratify whatever the arguments that are made. They will say "High crimes and misdemeanors have to be a crime."
Now, if you don't know anything about the history of the phrase, maybe you think that's true. You don't have Michael Gerhardt, who studied these issues, to know that's not true.
But you will have people like Alan Dershowitz say that -- that's what the standard is. You will have people say that the President wasn't extorting or bribing, he was concerned about corruption generally.
They will say that he was concerned about burden-sharing, that the other countries weren't paying Ukraine enough. There is enough of a kernel that they can work with in those arguments that are lousy arguments--
CUOMO: Yes, I mean that--
TOOBIN: --because they're not true.
CUOMO: Do they pass the "Come on" test? Or is the test, "Can I take cover in this?"
TOOBIN: I -- that's a -- that's a question I don't think I -- I can answer.
I think given the -- the current state of partisanship in this country, and given, you know, where the Republican Party is where you -- you defy Donald Trump at your political death peril, it's enough to get all these Senators to -- to vote against witnesses and against impeachment.
CUOMO: So, let me bring in Andrew McCabe here because you have so much experience with this.
So, they're going to get up there. Now, there will be a phase of this that we haven't really talked about much, which is, "Sure, they get their time. We don't know how much they're going to take."
We've talked before, Andrew and I, strategically about how this defense probably won't want to take all the time because it somewhat undercuts their argument that there is nothing there. If they need to go the full time, there must be something there.
But there will be the phase where the Senators get to ask questions of both sides. Is that something that the defense has to be wary about?
MCCABE: Well, it is, because that's essentially where the House Managers will take it -- take advantage of the opportunity to subtly rebut the claims--
TOOBIN: Yes.
MCCABE: --the misstatements, the falsehoods, whatever has come out of the defense case. With a few artfully placed questions with their Democratic colleagues in the Senate, they'll -- they'll get those questioned asked in a way that gives them an opportunity to address those facts.
But let's be perfectly clear. What the defense has to do, over the next two or three days, however long they take, is provide each and every Republican, who is prepared to vote against witnesses, against evidence, and ultimately, to acquit the President, each and every one of them is going to need a reason as to why they voted that way, despite the landslide of evidence that we have heard about, for the last three days.
The President has already said, made it very clear to them, you can't take the -- the rational position of "I don't approve of what he did, but I don't think he should be removed from Office during an election year."
So, the defense has got to come up with something. Right now, the best thing that they've seemed to gotten traction with is, "Well, the House didn't do a good enough job about litigating, and so we don't want to have to do their job."
But I think they're going to need to come up with more of that because -- because it's just not believable.
CUOMO: Well I think you're right. And I think we know what it is. And I learned about it, not long ago, from Professor Michael Gerhardt.
Let's take a quick break. When we come back, we'll take a quick look at what we believe the defense will come with strongest in terms of why this needs to end right now. Stay with us.
[21:55:00]
(COMMERCIAL BREAK)
CUOMO: All right, the Democrats have closed their case. Here is a taste of what Adam Schiff ended on.
(BEGIN VIDEO CLIP)
REP. ADAM SCHIFF (D-CA): Whether you like the President or you dislike the President is immaterial.
It's all about the Constitution and his misconduct. If it meets the standard of impeachable conduct, as we have proved, it doesn't matter whether you like him. It doesn't matter whether you dislike him.
What matters is whether he is a danger to the country because he will do it again. And none of us can have confidence, based on his record that he will not do it again because he is telling us every day that he will.
(END VIDEO CLIP)
CUOMO: Tough spot for Republicans. They started with, "This didn't happen." Clearly, it did. They went to "It wasn't wrong." Clearly it was. They went to "The House should have done their job." But they know that this is a trial court and they're supposed to create their own record.
So, where are they now? They have a defense. You're going to hear it tomorrow about why we don't have to go any further.
Let's come back. We have Asha Rangappa, Andrew McCabe, and Professor Michael Gerhardt.
They will say, "Listen, this -- Adam Schiff is right. There is a constitutional calamity here, if we subpoena these top officials at the Executive, who have given such precious advice to the President, and that's so important that dynamic, he will fight it with Executive privilege.
And if we get into that, Professor, and we damage that, Presidents forever will not be able to have safe counsel, and they'll always be impeached when Congress doesn't like what they do."
GERHARDT: Well, I think you're right. We're going to hear that. It's a really bad argument because it happens not to be true.
It's a completely false understanding of Executive privilege. That concept does not protect conversations that deal with criminality, criminal acts. And that privilege does not protect people doing illegal things like abusing power.
CUOMO: The man who was just sitting here, by your side, John Dean, if that were the reckoning of Executive privilege, he would have never testified, right?
GERHARDT: I -- that's exactly right. And so, there's a tremendous concern we all ought to have here. And that has to do with the casualties that may result from this process.
The first is truth. When the White House counsels begin their argument, when the President's lawyers begin their argument, they are going to be arguing to the President. That's their audience. They are going to be arguing to that one person. And for them, truth doesn't matter. It doesn't -- it doesn't come into the calculation at all.
The second thing, I think, we really have to worry about is whether or not impeachment itself is -- is going to become a casualty because if the President can stop information, if he can say, "I can withhold information about my own guilt from Congress," then he gets stronger and Congress gets weaker.
CUOMO: Impeachment but also just oversight, right, because the Executive always has the documents, right, it's always a search for what they have.
Asha Rangappa, the idea of, "Well, the President didn't do anything wrong," this new reporting that ABC started today on the cycle, and everybody else is chasing it down now, he said he didn't know Lev Parnas. He says he doesn't know what he's about.
He is on tape, reportedly, in conversation with Lev Parnas, and other close advisers, where Parnas is telling him the problem -- perceived problem with the Ambassador of Ukraine saying he's going to be impeached, and he says, "Get rid of her. Get her," he told you he doesn't know this guy. And there he is in conversation and planning with direct accent on this plot.
How can he be believed? How can you not want more proof?
RANGAPPA: Chris, this man has lied 16,000 times--
CUOMO: But this one!
RANGAPPA: --since he's become President.
Yes, I mean, you know, is it shocking?
CUOMO: But this is a whopper.
RANGAPPA: I mean I think that -- this is a whopper, and we should expect that what he has been saying is not true.
I think that to go back to the Executive privilege point, you know, I -- I find it incredibly strange that Members of Congress would want to protect the Executive branch's ability to assert Executive privilege because Executive privilege is essentially a way to shield conduct from Congressional oversight. So, this goes back to this idea of ceding their power.
CUOMO: Right.
RANGAPPA: And I will add that Executive -- you know, because Executive power is really a -- a -- a way to carve out an area of -- of the power of the Executive branch from oversight, impeachment is by definition a Congressional intrusion.
CUOMO: Right.
RANGAPPA: And so, I think Executive privilege has the lowest validity in this particular context. CUOMO: Well I'll tell you, a lot of the questions were answered tonight. Thank you, Andrew McCabe, Asha Rangappa, thank you Professor Gerhardt, John Dean, and Jeffrey Toobin ran off to continue our coverage.
This is a historic night. Thank you for watching.
