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ERIN BURNETT OUTFRONT

Any Moment: Senators Resume Questioning Legal Teams; Sen. Jon Tester (D-MT) Discusses About His Take On The Recent Session; Dershowitz: Abuse Of Power "Too Vague" For Impeachment; Trump Tweets John Bolton Video As War Of Words Between White House, Bolton Heats Up; Senators Question House Managers, Trump Lawyers. Aired 7-8p ET

Aired January 29, 2020 - 19:00   ET

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


JAKE TAPPER, CNN HOST: Legal but indecent, which a characteristic we're learning a lot about this ...

WOLF BLITZER, CNN HOST: Excellent point. We're waiting for the resumption of the question session of the Senate impeachment trial. Erin Burnett picks up our special coverage.

ERIN BURNETT, CNN HOST: And good evening. I'm Erin Burnett, OUTFRONT tonight we are moments away from the Senate returning to the chamber. They will resume asking questions of Trump's legal team and the House managers.

Now, they've already been at this for six hours. Some very heated responses. All of it geared towards getting to that vote, that crucial vote later this week on whether to call witnesses. Some of these questions you're going to hear tonight and these prime hours are going to get to the heart of that issue.

And I want to go straight to Manu Raju. He is there on Capitol Hill. So Manu, obviously, they're going to start filing in, in just a few moments here for this crucial evening session. Where do things stand right now?

MANU RAJU, CNN SENIOR CONGRESSIONAL CORRESPONDENT: Well, we're headed right to the critical moment, this is going to be on Friday. A vote to determine whether or not there should be witnesses in this trial. After the questioning period is done both tonight and we're expected to go late into the night tonight and then tomorrow, eight hours of questioning. Then, we'll get into that crucial Friday vote.

Now behind closed doors, this was a topic of discussion all day long among top Republicans. And I can tell you, Republican leaders are feeling better about the prospects of defeating this motion on Friday. They're trying to stem their losses to only three they can afford in order to defeat this motion on Friday.

The argument that they are making is similar to the ones that the President's attorneys have been making on the floor of the Senate that moving forward on witnesses could prolong the trial in their argument, turn that Senate into a body like the House that is investigating. They say that could create a damaging precedent for the Senate to go down that route and paralyze the Senate. And that's an argument that the Republican leadership in the Senate is

making to its members and one that they believe they're making headway in making. So at the moment, they believe they're there but, of course, we do expect at least two Republicans at the moment to break ranks, Susan Collins and Mitt Romney, uncertain about whether Lisa Murkowski would be a third.

She met with Mitch McConnell earlier today and declined to comment on where does Lamar Alexander sit too also a big question as we head into this critical moments here, Erin.

BURNETT: Right. And obviously, extremely crucial. Now you know Cory Gardner is not going to be that vote. All eyes then turn to Lamar Alexander and perhaps others who have just been more reticent about their feelings.

Now, Manu, you've been inside the chamber, able to see the body language and who responds to whom. What did you see today?

RAJU: Yes. Actually, one interesting moment occurred earlier today when Lamar Alexander, that key vote who could be the person to decide whether or not to move forward on witnesses. He was taking extensive notes at that moment in which the President's attorney, Patrick Philbin, had been giving his argument against moving forward on witnesses, writing extensively for some time as he was making that argument.

Now, he continued taking notes as Adam Schiff made a counterpoint, but that's something that was interesting whether it's a statement that he's going to eventually give remains to be seen. Also, Lisa Murkowski and Susan Collins, the two have attentive, taking notes throughout. There have been some moments of some tension on both sides, including Republicans groaning when Adam Schiff or when Jerry Nadler took a shot of sorts against Alan Dershowitz, the President's attorney saying that all scholars except for Dershowitz agree with the assessment about what constitutes impeachment.

So both sides though are more engaged than they have been in recent days here, Erin.

BURNETT: Which is important. I guess, when they're hearing their own names read out in questions, that would get you even more engaged, I suppose. All right. Manu, thank you very much.

But indeed, there have been some really crucial questions and going to be many more tonight. I want to go now to Democratic Senator Jon Tester of Montana. Senator, what's your take from today? Did you find it helpful?

SEN. JON TESTER (D-MT): Oh, absolutely. No, I think today was good for me as the very first day when they basically laid out the arguments during the amendment procedure, because that was all really important information and it was new to me, the information. And I think what we've seen today with the five minutes on each side is we've been able to them really kind of debate one another much easier because remember, and you guys saw this, the prosecution, the House managers use 20 hours. The defense used the block of time less than that, but nonetheless a long block of time too.

And I will tell you that there was no interaction. We're just kind of like sitting in a college class and you were just getting information, getting information, getting information and taking notes, which I did. But now we're getting more exchange between the two sides and I think it's a lot more fun.

BURNETT: Yes. Well, it certainly has seemed that way. I just wanted to - as you know, Alan Dershowitz, one of the President's lawyers has been making the case that you need a crime, a statutory crime to impeach a president, that that's required. Now, just a few moments ago, just before the dinner break that you're in right now, Senator, he stood up and seem to acknowledge that many constitutional scholars are finding that argument about a crime hard to stomach.

[19:05:02]

And he said something that I wanted to play for you. Here he is, Senator.

(BEGIN VIDEO CLIP)

ALAN DERSHOWITZ, MEMBER OF TRUMP'S DEFENSE TEAM: I read you the list of 40 American presidents who have been accused of abuse of power. Should every one of them be impeached? Should every one of them have been removed from office? It's too vague a term.

Reject my argument about crime. Reject it if you choose to. Do not reject my argument that abuse of power would destroy the impeachment criteria of the Constitution and turn it in the words of one of the senators of the Johnson trial to make every president, every member of the Senate, every member of Congress be able to define itself from within their own bosom.

(END VIDEO CLIP)

BURNETT: Senator, so that argument is he sort of after making a passionate argument about crime saying reject it, I don't care. Throw it out if you don't want it. But if your standards is abuse of power, every single president would be impeached. Do you find that argument compelling at all?

TESTER: No, because you got to look at the evidence behind that abuse of power from those situations and we haven't done that. We're dealing with what President Trump has allegedly done and we're looking at the information, the concealment of information and the impacts on political opponents and U.S. citizens being investigated by a foreign country.

I don't need to go through the charges again. But I don't think you can flatly just say we're not going to consider it unless you know the information behind it and I think that's really what's important.

Look, I didn't teach at Harvard and I am not a lawyer, but the bottom line is if you think about this from a common sense standpoint, if somebody abused power and asked a foreign government to come in and that's proven to be true, that's a very serious charge.

BURNETT: So the big focus is on witnesses and that vote and, obviously, Cory Gardner now saying that he will not vote for witnesses, which as we all know puts a lot of spotlight on senators like Lamar Alexander. Your colleague Democratic Senator Joe Manchin today said he is open to Hunter Biden testifying, obviously, in exchange possibly for, who knows, John Bolton, who knows it might be.

But that position, Hunter Biden is OK, puts him at odds with many of your Democratic colleagues. What about you, Senator Tester, would you be OK with Hunter Biden testifying if that's what it takes to get witnesses at all?

TESTER: So that's a great question, Erin. And I will tell you that I think it all deals with relevancy. And the relevant issue is were they there when the President made the alleged decision to withhold aid and the reasons that were done. Like John Bolton has already said, like Mick Mulvaney knows and Pompeo knows, I think it would be good to get those folks with firsthand information in, swear them in, because I think it's a different world once you're sworn in than just talking to Erin Burnett and get the information out there. Plus, get the documents that are out there.

I'm going to tell you and it's part of what has frustrated me with this is that there's plenty of information out there, a vote to convict and a vote to acquit. But the bottom line is why not get as much as you can and so it takes us another couple of weeks. I've seen so much time wasted in the United States Senate on this important issue and impeachment is a very solemn, important issue. We ought to take the time to find out what the facts are.

BURNETT: All right. Senator, I appreciate your time.

TESTER: Thank you, Erin.

BURNETT: And an important point is willing to wait two weeks and there's been plenty of times. The Senate may not have spent its time so well.

Let's go straight to our panel, Laura, did this move the needle on witnesses, such that we've seen so far today, as Senator Tester, I think, is rightly pointing out. There's a lot more back and forth, especially as the day went on. You'd see Jay Sekulow and then Adam Schiff sort of back to back responding to a question.

LAURA COATES, CNN LEGAL ANALYST: It was far more engaging and it gave you an idea of figuring out what the audience and the senators actually thinking, where they moved by previous things, questions can be very telling about what they were actually thinking. Were you preaching to a choir or do you have a chance to convert someone. You saw that in terms of moving the needle for our understanding of what was important.

However, there was a very compelling one, two punch that I think would be the most persuasive. It was the combination of Philbin and Dershowitz essentially saying, number one, you don't want to get inside of the head of the President of the United States about mixed messaging, mixed motivation. It's the 52-48 in favor of himself and somebody else. And why?

Because each one of you at some point has had a calculus about what the electoral consequences will be for your decisions. Be cautious how you vote, this might be you. Now that might not be the best legal argument to make, but for people who already have a self fulfilling prophecy sort of want to be status, that may compel them to give a lifeline.

BURNETT: So Ryan, Alan Dershowitz, I just played his whole, OK, forget what I said about a crime but abuse of power is too vague of a term. He had, arguably, even before that moment, the moment of the day, that sort of had people going, wait, what did he just say, what does this mean. Let me play it for you.

(BEGIN VIDEO CLIP)

DERSHOWITZ: Every public official that I know believes that his election is in the public interest. And mostly you're right, your election is in the public interest.

[19:10:00]

And if a president does something, which he believes will help him get elected in the public interest. That cannot be the kind of quid pro quo that results in impeachment.

(END VIDEO CLIP)

BURNETT: I mean, I'm not a lawyer. I can't believe Alan Dershowitz would take that seriously if you heard that from someone else. I mean, the translation is do whatever you need to do to win office. If you think you're the best person for that office, it's OK.

RYAN GOODMAN, CO-EDITOR-IN-CHIEF, JUST SECURITY: That's right. And Senator Tester said that he hadn't taught at Harvard and he's not a lawyer. I actually have taught at Harvard with Alan and I am a lawyer and I've never heard that argument in my life.

BURNETT: And so your informed opinion as oppose to mine and Senator Tester is ...

GOODMAN: That's right. It's the most absurd theory I've ever heard. It, in fact, describes the paradigmatic crime and it says that's not criminal, it's actually in the interest of the individual to win reelection by engaging in a corrupt quid pro quo because that's what they're really after, it's just trying to win reelection.

In fact, the remarkable thing speaking to the audience of senators is the senators have rules for themselves, which actually says ethically they cannot engage in these kinds of corrupt quid pro quos. And if they do, they could be expelled from the Senate. So they understand that the message that he's actually conveying there is beyond counterintuitive. I don't know anybody who would support that proposition. BURNETT: What did you make when you heard that? I mean, everybody did

respond to that sort of saying, wait, what did he say.

JOE LOCKHART, CNN POLITICAL COMMENTATOR: Yes. I mean, having to work in about a dozen campaigns, there is always the sense that, boy, if we win, it's better for the country. But that doesn't give you a license to commit crimes or to do things that are unethical, so it was absurd.

And what I thought when I was watching it was this is unAmerican. This is what you hear from Stalin. This is what you hear from Mussolini, what you hear from authority and from Hitler, from all of the authoritarian people who rationalized and in some cases, genocide, based on what was in the public interest. It was startling and I still can't believe he went on the floor of the Senate and made that argument.

BURNETT: I mean, Scott, you have that moment, then you had questions coming in and one interesting thing about questions for people who weren't watching all day, some of them came from pairs or groups of senators, so that they sort of teamed up. Maybe to make a point, we all share this interest. So a couple of groupings, Murkowski, Collins, Romney and Murkowski and Collins.

So they clearly are saying, look, we see a lot of things the same way. It's not just all you guys saying that. It's true and we're deeply considering witnesses. So our reporter in the room noted that senators visibly perked up when the question came later in the day from Murkowski and Collins.

Everybody wanted to hear what it was that they had to ask to say - and this particular question was whether the President had ever expressed concerns specifically about corruption, more broadly in Ukraine before Zelensky took office. That was the question. What are GOP senators reading into the questions when they hear that?

SCOTT JENNINGS, FORMER SENIOR ADVISER TO MITCH MCCONNELL: Well, I think broadly the question about who is prepared to vote for witnesses is what people are looking for here.

BURNETT: Yes.

JENNINGS: And it strikes me that Romney and Collins have pretty clearly signaled where they are. Cory Gardner from Colorado came out today and said he opposes it.

BURNETT: Yes.

JENNINGS: And so it strikes me that the sort of the locking in right now is on Murkowski and perhaps Lamar Alexander of Tennessee. So I think the broad strategic question is which groups of senators are still thinking about doing questions on Friday.

I still think based on what I've heard, it's still too early to predict how that's going to go. But to me that's right where it is. By the way, Erin, if I may.

BURNETT: Yes.

JENNINGS: I just have to respond to something that my friend, Joe, said and I'm not there to elbow him in the ribs. I don't think it's appropriate, frankly, to compare the President of the United States to Stalin, Mussolini, Hitler and people who commit genocide. I mean we can have political arguments about this, but I don't think anything that this President has done, that the Democrats have done, that either of their leaving teams have done rises to the level of Stalin, Hitler and Mussolini and people who commit genocide. I think that's to me is not a proper comparison, honestly.

LOCKHART: And that is not the comparison I made. I did not compare the President. I said that argument, that rationalization is exactly the rationalization that these authoritarian dictators made, which is we will do these things, because - yes, they're in my interest, but it's in the public interest.

So, again, I learned long ago not to disparage people without the receipts. So Scott is right, you shouldn't compare the President to those people. But I didn't. I compare the argument and what's shocking about it is that Alan Dershowitz made it on the floor of the Senate. And I, again, if I had inadvertently said, compared Trump to any of those people, Scott, I would say I got it wrong and I apologize.

I didn't get this wrong, because it is that argument that's so dangerous that you can commit any act as long as in head you believe it's good for the country ...

[19:15:04]

BURNETT: As long as the end justify the means, then you're there.

LOCKHART: ... our political system would literally break down, because you would have 535 lawless people all using the argument that I'm good for my constituents, so I'm going to go, or a president saying, I'm running against this or this guy is blocking my legislation, I'm going to get the IRS to audit their taxes, because this legislation is good for the country.

BURNETT: All right.

LOCKHART: We can't have that.

BURNETT: All of you stay with me please. We are waiting the Senate to return from that crucial dinner break. And now at this hour, there's a major battle erupting between the White House and John Bolton literally unfolding here. A comment coming just from John Bolton a moment ago escalating a war of words today. We'll be right back.

(COMMERCIAL BREAK)

[19:19:34]

BURNETT: Breaking news, as we wait for senators to return from their break back to that floor, more questions coming. President Trump is escalating his war of words with John Bolton, his former National Security Adviser.

Just a short time ago, President Trump tweeted a video of Bolton from last August.

(BEGIN VIDEO CLIP)

JOHN BOLTON, U.S. FORMER NATIONAL SECURITY ADVISER: The President called to congratulate President Zelensky on his election and then on his success in the parliamentary election. They were very warm and cordial calls.

(END VIDEO CLIP)

[19:20:02]

BURNETT: Which they were. This comes after the White House issued a formal threat to Bolton designed to prevent the publication of his book.

Kaitlan Collins is live from the White House. Kaitlan, the President tweeting out that video along with the message game over. Obviously, he's excited that Bolton said the call was cordial, which whatever quid pro quo was within it, it certainly was cordial. So what is the fear in the White House tonight?

KAITLAN COLLINS, CNN WHITE HOUSE CORRESPONDENT: I mean, the point of the President's tweet is that that would essentially nullify what John Bolton has written in his book, though it's unlikely to satisfy Democrats who want to hear from the former National Security Adviser after The New York Times reported that he is saying that the President directly tied freezing that security assistance to Ukraine to these investigations that the President wanted. And now it has erupted in this war between the White House and Bolton's attorney.

Bolton's attorney is pushing back tonight on a statement from the White House earlier where they said essentially that they had sent John Bolton a letter saying that they were looking at the draft of his book that he turned over which is this process just so no classified material makes it in there. And you see Mitch McConnell going in now.

And they said that essentially that they found a lot of classified information in the book and a lot of top secret material, so that it was going to obviously not be able to be published as it was. His attorney is now releasing a letter, an email that he sent to an attorney at the National Security Council saying, hey, look, it looks like my client could be called to testify. We do not have any reason to believe that there is classified information in the chapter on Ukraine and, obviously, if John Bolton does go testify, those are the kinds of questions that he is going to be asked about.

So they're essentially asking the National Security Council to speed that process up. They say they have not gotten a response to that, Erin.

BURNETT: All right. Kaitlan, thank you very much. And Laura, let me ask you, right, so there's this battle going on and the White House says there's significant amounts of classified information in the book. But in the six days since they received the manuscript, they have according to Bolton's lawyer, not given an example of one single thing that is classified. So what do you think?

COATES: Well, it's awfully convenient that now when it's in limbo whether he would testify or not is out there. But the reason it's so odd, of course, is because Bolton could technically go and testify or give a speech or a press conference or come here on your show and say the things that are in the book provided they're not a classified portion, the things that really are what people would like to hear about and why they're calling for his testimony right now.

And remember, unless there's some ...

BURNETT: Right. Those things would not be classified.

COATES: No, unless ...

BURNETT: You should make it clear, right.

COATES: ... exactly. I mean, executive privilege is what he was going with before, there was the assumption. But the idea that you'd prefer him not to speak is not the same thing as invoking an actual deliberative aspect of executive privilege or about classification. And so remember back in Davos when the President said, also, we left with a bad taste in his mouth, he had bad blood when he left.

That's why you don't want him to testify. That is neither privilege or classification. That's preference.

BURNETT: So Ryan, they're trying to make this argument now, the team Trump. OK, maybe you want to hear from John Bolton but if you guys do it, you're going to be sitting here forever. You're going to be sitting here forever because going to have to go through the courts and we're not going to hear it. Mr. Philbin made that argument. Here he is.

(BEGIN VIDEO CLIP)

PATRICK PHILBIN, DEPUTY COUNSEL TO THE PRESIDENT: John Bolton was the National Security Adviser to the President. He has all of the nation's secrets from the time that he was the National Security Adviser. And that's precisely the area, the field in which the Supreme Court suggested in Nixon versus United States. There might be something approaching an absolute privilege of confidentiality in communications with the President, the field of national security and foreign affairs. That's the crown jewels of executive privilege.

(END VIDEO CLIP)

BURNETT: OK. Bottom line him, does executive privilege hold up and if the Senate decided to call John Bolton, could he essentially walk in and testify or would it be held up?

GOODMAN: He could probably walk in and testify just like all of the senior officials in the House, walked in and testified. And he could do it in part because he would be testifying about the same set of facts that they testified about. That also means that they've already waived executive privilege. So the fact that this is already in the public domain and then it's done again to try to get his opinion on what's in the public domain, he can speak to that.

The fact that the President has also been tweeting that John Bolton says it's X, but no it's not X, Y happened. That waves executive privilege because you can't say, well, I can talk about it. I can say Y happened.

BURNETT: But he can't.

GOODMAN: You can say X happened. So it's an impossibility for them. There just really isn't anything there. So that's one piece of it.

And then another piece of it is as the House managers said, the Chief Justice can actually ruin that. It's actually one of the rules. The standing rules of the Senate for impeachment is that if a procedural issue comes up on evidence, he has the ability to rule it out.

BURNETT: So he could just rule on it and it happens right away. In other words, you short circuit any other kind of court.

GOODMAN: That's right. And there's piece ...

BURNETT: Unintended perhaps.

GOODMAN: ... that's right. There's a piece in The Washington Post today from Neil Kelyon and Josh Skelter, which basically says there's also a Supreme Court case that says that's final. When the Senate sits in an impeachment trial and then issues orders for itself, that's final. Courts don't get to review that. There's actually a Supreme Court case that says that.

BURNETT: I mean, you would hope that would be clear to senators who are making this important decision, Joe, but there's also the issue of John Bolton himself.

[19:25:04]

LOCKHART: Yes.

BURNETT: He's written a manuscript. He believes that everything in it - he's been around top secret classified information for decades.

LOCKHART: Right.

BURNETT: He believes everything in it is fine and good to go. So what are the odds of him making some absolutely horrible boarish error and there's just - it's, what were their words, full of top secret classified information?

LOCKHART: Yes. The odds are pretty low. I think John Bolton is as well as anyone would know what's classified and what's not classified, how you talk about things (inaudible) ...

BURNETT: Yes, their words were significant amount are classified information.

LOCKHART: Yes. So I think there's a couple things here to look for. One is whether things have been classified recently. I would not put it past this White House to have looked at the manuscript and then gone and retroactively classify things.

BURNETT: So they see it and then they classify it and then they ...

LOCKHART: They see it, yes. Because, again, you saw Bolton could know that this isn't classified because I was in the room, it never got classified and it would fit the pattern. It would fit the pattern of every term and we've seen multiple justifications and rationalizations. It has gone from executive privilege to absolute immunity to classification and I've always thought that classification was the most dangerous because ...

BURNETT: OK. And we are - it is you every time, Joe, that is speaking when it happens.

LOCKHART: Yes.

BURNETT: You must be the magic sauce. They are reconvening now for the question and answer session. Listen in.

[19:26:23]

J. ROBERTS: Oh, the Senator from Arizona?

MCSALLY: I send a question to the desk on behalf of myself and Senator Scott of Florida, Hawley and Hoeven.

J. ROBERTS: Thank you.

The question is for Counsel for the President from Senator McSally, Senator Scott from Florida, Senator Hawley and Senator Hoeven. "Chairman Schiff just argued that, quote, 'We think there's a crime here of bribery or extortion or,' quote, "something akin to bribery," end quote. Do the articles of impeachment charge the President with bribery, extortion or anything akin to it? Do they allege facts sufficient to prove either crime? If not, are the House Managers' discussion of crimes they neither alleged or proved appropriate in this proceeding?

PHILBIN: Mr. Chief Justice, Senators, thank you for that question. And no, the articles of impeachment do not charge the crime of bribery, extortion or any other crime, and that's a critical point because, as the Supreme Court has explained, "No principle of procedural due process is more clearly established than that of notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge are among the constitutional rights of every accused." That was the Supreme Court in Cole v. Arkansas.

And the Court has also explained that, for over 130 years, a Court cannot permit -- it has been the rule -- that a Court can't permit a defendant to be tried on charges that are not made in the indictment against him. That is the rule in the criminal law and it is also the case for impeachments. It is the House's responsibility to make an accusation and a specific accusation in articles of impeachment. The House had the opportunity to do that and they did that, and the charges that they put in the articles were abusive power on a vague standard that they made up an obstruction of Congress.

They put some discussion about other things in a House Judiciary Committee report, but they did not put that in the articles of impeachment. And if this were a criminal trial in an ordinary court and Mr. Schiff had done what he just did on the floor here and start talking about crimes of bribery and extortion that were not in the indictment, it would have been an automatic mistrial. We'd all be done now and we could go home. And Mr. Schiff knows that because he's a former prosecutor.

It is not permissible for the House to come here failing to have charged, failing to have put in articles of impeachment any crime at all and then to start arguing that actually, oh, we think there is some crime involved, and actually we think we actually proved it even though we provided no notice we're going to try to prove that. It's totally impermissible. It's a fundamental violation of due process. And scholars have pointed out those rules apply equally in cases of impeachment.

Charles Black and Philip Bobbitt explained in their work, "Impeachment: A Handbook," that is regarded as one of the authorities collecting sources of -- of -- of authority on impeachments. They said, quote, "A Senator's role is solely one of acting on the accusations," the articles of impeachment, "voted by the House of Representatives. The Senate cannot lawfully

[19:30:00]

find the President guilty of something not charged by the House any more than a trial jury can find a defendant guilty of something not charged in the indictment," end quote.

So what Manager Schiff just attempted here was totally improper. It would've resulted in a mistrial in any court in this country. And there is nothing that has been introduced in the facts that would satisfy the elements of a crime of extortion or bribery either. And to attempt after making their opening, after not charging anything in the articles that is a crime, after not specifying any crime, after providing no notice that they're going to attempt to argue a crime in the question-and-answer session to try to change the charges that they've made against the President of the United States and to say that actually there is bribery and extortion, it's totally unacceptable. It's not permissible.

And this body should not consider those arguments. They were not permissible bounds for argument. They're not included in the articles of impeachment, and they should be ignored. Thank you.

J. ROBERTS: Thank you, Counsel.

The Senator from New Mexico? UDALL: Thank you for the recognition, Mr. Chief Justice. Mr. Chief Justice, I have sent a question to the desk. I'm joined in this question by Senators Blumenthal, Leahy and Whitehouse.

J. ROBERTS: Thank you.

The question from Senator -- Senator Udall joined by Senators Blumenthal, Leahy and Whitehouse is to the House Managers. "The President's Counsel has argued that Hunter Biden's involvement with Burisma -- Burisma created a conflict of interest for his father, Joe Biden. President Trump, the Trump Organization and his family, including those who serve in the White House, maintains significant business interests in foreign countries and benefit from foreign payments and investments. By the standard the President's Counsel has applied to Hunter Biden, should Mr. Kushner and Ms. Trump's conflicts of interest with foreign governments also come under investigation?

DEMINGS: Mr. Chief Justice and to the Senators, thank you so much for that question. Let me just preface what I'm about to say with this statement. This has been a tough few days. It's been a trying time for each of us and for our nation.

But I just want to say this in response to the question that has been posed. I -- I stand before you as the mother of three sons. I'm sure that many of you in this chamber have children, sons and daughters, and grandchildren that you think the world of. My children's last name is Demings, and so when they go out to get a job I wonder if there are people who associate my sons with their mother and their father.

I just believe as we go through this very tough very difficult debate about whether to impeach and remove the President of the United States that we stay focused. The last few days we've seen many distractions. Many things have been said to take our minds off of the truth, off of awful why we're really here. In my former line of work I used to call it working with smoke and mirrors -- anything that will take your attention off of what's painfully obvious, what's there in plain view.

The reason why we're here has nothing to do with anybody's children as we've talked about. The reason why we're here is because the President of the United States, the 45th President used the power of his office to try to shake down -- I'll use that term because I'm familiar with it -- a foreign power to interfere into this year's election. In other words, the President of the United States tried to cheat and then tried to get this foreign power, this newly elected president to spread a false narrative that we know is untrue about interference in our election.

That's why we are here and it really would help, I believe, the situation if the Attorney-General -- perhaps the Department of Justice who's been pretty silent -- would with issue a ruling or an opinion about any person of authority especially the President of the United States

[19:35:00]

using or abusing that authority to invite other powers into interfering in our election.

And so, Mr. Chief Justice, I will just close my remarks as I began them. Let us stay focused. This doesn't have anything to do with the President's children or the Biden's children, this is about the President's wrongdoing. Thank you.

J. ROBERTS: Thank you.

Senator from Idaho?

CRAPO: Mr. Chief Justice, on behalf of myself, Senator Risch, Senator Cruz, Graham, Braun, Moran and Boozman, I send a question to the desk for the Counsel for the President.

J. ROBERTS: The question from Senator Crapo and the other senators for the Counsel for the President, "Does the evidence in the record show that an investigation in the Burisma-Biden matter is in the national interest of the United States and its efforts to stop corruption?"

PHILBIN: Mr. Chief Justice, Senators, thank you for that question. And the straightforward answer is yes, the evidence does show that it would be in the -- in the interests of the United States. In fact, the evidence on that point is abundant.

Here's what we know. Hunter Biden was appointed to the board of an energy company in Ukraine without any apparent experience that would qualify him for that position. He was appointed shortly after his father, the Vice President, became the Obama administration's point man for policy on Ukraine. We know that his appointment raised several red flags. At the time, Chris Heinz stepson of the then Secretary of State severed his business relationship with Hunter, citing hundreds a lack of judgment and joining the board of that company -- Burisma -- because Burisma was owned by an oligarch who is repeatedly under investigation for corruption, for money laundering and other offenses.

Contemporaneously press reports speculated that Hunter's role with Burisma might undermine U.S. efforts led by his father then, at that time, to promote the U.S. anti-corruption message in Ukraine. The Washington Post said, quote, "The appointment of the Vice President's son to Ukrainian oil board looks nepotistic at best, nefarious at worst," end quote.

There were other articles. There was one that reported, quote, "The credibility of the United States was not helped by the news that Hunter had been on the Board of Directors of Burisma."

There was another article saying, "Sadly, the credibility of Mr. Biden's message may be undermined by the association of his son with the Ukrainian natural gas company, Burisma Holdings, which is owned by a former government official suspected of corrupt practices," and it went on. Reports from the Wall Street Journal said that activists here -- that is in the Ukraine -- say that the US' anti-corruption message is being undermined as his son receives money from a former Ukrainian official who is being investigated for graft.

At the same time, within the Obama administration, officials raised questions. The Special Envoy for Energy Policy Amos Hochstein raised the matter with the Vice President. Similarly, Deputy Assistant Secretary of State Kent testified that he, too, voiced concerns with Vice President Biden's office.

Everyone who was asked in the proceedings before the House of Representatives agreed that there was at least an appearance of a conflict of interest when Mr. Biden's son was appointed to the Board of this company that included Ambassador Yovanovitch, Deputy Assistant Secretary Kent, Lieutenant Colonel Vindman, Jennifer Williams, Ambassador Sondland, Dr. Fiona Hill and Ambassador Taylor. They all agreed there was an appearance of a conflict of interest.

And even in the transcript of the July 25th telephone call, President Zelensky himself acknowledged the connection between the Biden and Burisma incident, the firing of the prosecutor who reportedly had been looking into Burisma when Vice President Biden openly acknowledged he

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leveraged a billion dollars in U.S. loan guarantees to make sure that that particular prosecutor was fired. He -- he openly acknowledged it was an explicit quid pro quo. "You don't get a billion dollars in loan guarantees unless and until that prosecutor is fired. My plane is leaving in six hours," he said on the tape.

And when Vice -- when the President -- President Trump raised this in the July 25th call, President Zelensky recognized that this related to corruption. And he said, "The issue of the investigation of the case" -- and he's referring to the case of Burisma -- "is actually the issue of making sure to restore the honesty, so we will take care of that." And he later said in an interview that he recognized that -- that President Trump had been saying to him things are corrupt in Ukraine and he was trying to explain, "No, we're going to change that. There's not going to be corruption."

So that explicit exchange in the July 25th call shows that President Zelensky recognized that that Biden-Burisma incident had an impact on corruption and anti-corruption. And so it was definitely undermining the U.S. message on anti-corruption, and it was a perfectly legitimate issue for the President to raise with President Zelensky to make clear that the United States did not condone anything that would seem to interfere with legitimate investigations and to enforce the proper anti-corruption message. Thank you.

J. ROBERTS: Thank you, Counsel.

Senator from Illinois? Thank you.

Senator Durbin's question is directed to the House Managers. "Would you please respond to the answer that was just given by the President's Counsel?"

GARCIA: Mr. Chief Justice, Senators, the President sought Ukraine's help in investigating the Bidens only after reports suggested Vice President Biden might enter the 2020 presidential race and would seriously challenge President Trump in the polls. President Trump had no interest in Biden's Obama-era Ukraine work in 2017 or 2018 when Biden was not running against him for President.

None of the 17 witnesses in the impeachment inquiry provided any credible evidence -- no credible evidence to support the allegation that former Vice President Biden acted inappropriately in anyway in Ukraine. Instead, witnesses testified that the former Vice President was carrying out official U.S. policy in coordination with the international community when he advocated for the ouster of a corrupt Ukrainian official. In short, the allegations are simply unfounded.

President Trump's own hand-picked special envoy to Ukraine -- Ukraine Ambassador Kurt Volker knew they were unfounded, too. He testified that he confronted the President's attorney Mr. Giuliani about these conspiracy theories and told him that, quote, "It is simply not credible to me that Joe Biden would be influenced in his duties as Vice President by money or things for his son or anything like that. I've known him for a long time. He's a person of integrity and that -- and that's not credible."

Giuliani acknowledged that he did not find one of the sources of -- of these allegations -- a former Ukrainian prosecutor to be credible. So even Giuliani knew the allegations were false.

Our own Justice Department confirmed that the President never spoke to the Attorney-General about Ukraine or any investigation into Vice President Biden. If President Trump genuinely believed that there was a legitimate basis for -- to request Ukraine's assistance and law enforcement investigations,

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there are specific formal processes that he should have followed. Specifically, he could have asked the DOJ to make an official request for assistance to the Mutual Legal Assistance treaty.

It's worth noting the President only cares about Hunter Biden to the extent that he is the Vice President's son and, therefore, a means through which to smear a political opponent. But President Trump specifically mentioned President -- Vice President Biden in asking for the removal of the former prosecutor on that July 25 call. That is what he wanted, not an investigation into Hunter Biden. This is yet another reason. You know that there is no basis for investigating Vice President Biden.

Can we get Slide 52 up? The timing shows clearly that despite the fact that this conduct occurred in 2015, it wasn't until Vice President Biden begin consistently beating Trump in national polls in the spring of 2019 by significant margins that the President targeted Biden. He was scared of losing. The President wanted to cast a cloud over a formal political opponent. This wasn't about any genuine concern of wrongdoing.

The evidence proves that this was solely about the President wanting to make sure that he could do whatever it took to make sure that he could win. So he froze that critical money to Ukraine to coerce Ukraine to help them attack his political opponent and secure his reelection. Well, the President of United States cannot use our taxpayer dollars to pressure a foreign government to do his personal bidding. No one is above the law.

J. ROBERTS: Thank you.

GARCIA: I yield back.

J. ROBERTS: The Senator from South Carolina?

SCOTT: Thank you, Sir. I send a question to the desk on behalf of myself, Senators Crapo and Graham for the White House Counsel.

J. ROBERTS: The question is from Senator Scott to the White House Counsel. "House Managers claim that the Biden-Burisma affair has been debunked. What agency within the government or independent investigation led to the debunking?"

HERSCHMANN: Mr. Chief Justice, Members of the Senate, there is no evidence in the record about any investigation, let alone debunked, sham, discredited or, as Manager Jeffries told you tonight, phony.

The House Managers have incited to any evidence in the record because none exists. A couple of days ago I read to you a quote and statements from Vice President Biden dealing with corruption in Ukraine. What I didn't tell you was he made those statements before the Ukrainian parliament directly. He spoke about the historic battle of corruption. He spoke about fighting corruption, specifically, in the energy sector. He spoke about no sweetheart deals.

He said, "Oligarchs and non-oligarchs must play by the same rules. Corruption siphons away resources from the people. It blunts economic growth and it affronts the human dignity." Those were Vice President Biden's words.

So the real question is this, is corruption related to the energy sector in Ukraine, run by a corrupt Ukrainian oligarch who was paying our Vice President's son and his son's business partner millions of dollars for no apparent legitimate reason while his father was overseeing our country's relationship with Ukraine merit any public inquiry investigation or interest? The answer is yes. And simply by saying it didn't happen is ridiculous.

And with all due respect to the House Managers and citing to our children, the message to our children, especially when you're overseeing

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a corruption and trying to root it out in another country is to make sure your children weren't benefiting from it. That's what should be happening not to sit there and say that it's OK.

The House managers don't deny that there's a legitimate reason to do an investigation. They just say it was debunked, it's a sham, it's deemed legitimate but they don't tell you when it happened. And we all remember the e-mail that Chris Heinz sent. Keep this in mind, he is the step-son of the secretary -- then Secretary of State John Kerry. He sends an official e-mail to the State Department to the Chief of Staff, to John Kerry and his special assistant. The subject is Ukraine.

There's no question when you look at that e-mail that it's a warning shot to say, I don't know what they're doing but we're not invested in it. He's taking a giant step back.

And think about the words and remember the video that we saw about Hunter Biden. What did he say? I'm not going to open my kimono. I'm not going to open my kimono, when he was asked how much money he was making.

In one month, in one month alone, Hunter Biden and his partner made as much -- almost as much as every senator and congressman just in one month alone what you earned in a year and you don't think that merits inquiry?

Does anyone here think when they say it's a debunked investigation that didn't happen that we wouldn't remember? If there was testimony of Hunter Biden, Joe Biden, Secretary of State John Kerry, his stepson, their business partner, his chief of staff, and the special assistant.

How can you tell the American people it doesn't merit inquiry when our Vice President's son is supposedly doing this for corporate transparency in Ukraine? He's going to oversee the legal department of Ukrainian company. He's going to help them, and if you look at his statement that I read to you beforehand, there's another part of it from October of 2019. If you want to know whether he thought it dealt with outside of Ukraine and just the Burisma, he says, he was advising Burisma on its corporate reform initiative, an important aspect of fueling Burisma's international and diversity.

And listen to this statement by Hunter Biden's attorney, vibrant energy production, particularly natural gas, was central to Ukraine's independence and to stemming the tide of Vladimir Putin's attack on the principles of a democratic Europe.

Do you think he understood when he was getting the millions of dollars what his father was doing? The only problem is that statement didn't come out until October of 2019.

Only when the news story started to break, only when the House managers raised these issues did people start to talk about it. Tell us, tell us where we saw Joe Biden, Hunter Biden, John Kerry testify about it. Tell us where you did it when you did your impeachment hearings.

I don't remember seeing that testimony. I don't remember seeing the bank records. We put the bank records in front of you and the people are entitled to know what exactly was going on.

J. ROBERTS: Thank you, counsel. The senator from Oregon?

MERKLEY: Thank you, Mr. Chief Justice. On behalf of the Senator from New Mexico, Martin Heinrich and myself, I have a question to send to the desk.

J. ROBERTS: Thank you.

The question from Senator Merkley and other senators is for counsel to the president. Please clarify your previous answer about the Bolton manuscript. When exactly did the first person on the president's defense team first learned of the allegations in the manuscript?

Secondly, Mr. Bolton's lawyer publicly disputes that any information in the manuscript could reasonably be considered classified. Was the determination to block its publication on the basis that it contains classified information made solely by career officials or were political appointees in the White House Counsel's office or elsewhere in the White House involved?

PHILBIN: Mr. Chief Justice, Senator, to address your question specifically the allegation that came out in the "New York Times" article about a conversation that is allegedly reported in the manuscript between the President and Ambassador Bolton,

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officials, lawyers in the White House Counsel's office learned about that allegation for the first time on Sunday afternoon when the White House was contacted by the "New York Times."

In terms of the classification review, it is conducted at the NSC. The White House Counsel's office is not involved in classification review determining what's classified or not classified. I can't state the specifics.

My understanding is it is conducted by career officials at the NSC but it's handled by the NSC. So, I'm not in position to give you full information on that. My understanding is it's being done by career officials, but it is not being done by lawyers in the White House Counsel's office.

And I hope that answers your question, Senator.

J. ROBERTS: Thank you, counsel.

SULLIVAN: Mr. Chief Justice?

J. ROBERTS: Senator from Alaska.

SULLIVAN: Mr. Chief Justice, I sent a question to the desk on behalf of myself and Senator Lankford for the president's counsel.

J. ROBERTS: Thank you.

Question from the Senator Sullivan and Lankford to the counsel for the president. There has been conflicting testimony about how long the Senate might be tied up in obtaining additional evidence. At the beginning of this trial, the Minority Leader offered 11 amendments to obtain additional evidence in the form of documents and depositions from several federal agencies. If the Senate had adopted all 11 of these amendments, how long do you think this impeachment trial would take?

SEKULOW: Mr. Chief Justice, members of the Senate, it would take a long time. It would take a long time just to get through those motions. But there had been 17 witnesses. We're talking about now additional witnesses that the managers have put forward and that Democratic Leader Schumer has discussed. He has discussed four witnesses in particular if this body would -- if it were to grant witnesses would say, yes, you get those four witnesses and the White House and the president's counsel gets what?

Whatever I want, that's being said. Mr. Schumer, whatever I want? Here's what I want. I want Adam Schiff. I want Hunter Biden. I want Joe Biden. I want the whistleblower. I want it -- I want to also understand there may be additional people within the House Intelligence Committee that have had conversations with that whistleblower. I get anybody we want.

By the way, if we get anybody we want, we won't be here for a very long time. The fact to the matter is we're not here to argue witnesses tonight but, obviously, it's an undercurrent.

But to say that this is not going to extend this proceeding, months, because understand something else, despite the executive privilege and other nonsense, I suspect Manager Schiff, smart guy, he's going to say, wait a minute, I've got some speech and debate privileges that may be applicable to this.

I'm not saying that they are, but they may raise it. It would be legitimate to raise it. So, this is a process that we would be -- this would be the first of many weeks.

I think we've got to be clear. They put this forward in an aggressive and fast-paced way. And now, they're saying, now, we need witnesses. After 31 or 32 times you said you proved every aspect of your case, that's what you said, well, you didn't. He just said he did. Well, I don't think we need any witnesses.

Thank you.

J. ROBERTS: Thank you, counsel.

Yes. The Senator from New Jersey.

MENENDEZ: Mr. Chief Justice, I sent the question to the desk (OFF- MIKE).

J. ROBERTS: The question is from Senator Menendez to the House managers. President Trump has maintained that he withheld U.S. security assistance to Ukraine because he was concerned about corruption. Yet, his purported concern about corruption did not prevent his administration from sending congressionally appropriated assistance to Ukraine more than 45 times between January 2017 and June 2019, totaling more than $1.5 billion. So, why did the President suddenly become concerned about corruption in early 2019?

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