Return to Transcripts main page

New Day

Alan Dershowitz Makes Controversial Argument to Senate on Presidential Power During Impeachment Trial; Some Republican Senators Considering Voting to Hear Witness in Senate Impeachment Trial; Rep. Jason Crow (D-CO) is Interviewed About the Impeachment Trial. Aired 8- 8:30a ET

Aired January 30, 2020 - 08:00   ET

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

[08:00:00]

ALISYN CAMEROTA, CNN ANCHOR: And Mitt Romney of Utah appear to be leaning strongly towards voting yes for witnesses. A third senator, Alaska's Lisa Murkowski, seems inclined to join them, but Democrats need four Republicans. So all eyes are on that man on your screen. That is retiring Senator Lamar Alexander of Tennessee. He has not yet tipped his hand. If witnesses are called, the White House is prepared to fight. The Trump administration, in fact, is warning former national security adviser John Bolton not to publish his new book, claiming it could cause, quote, grave harm to national security.

JOHN BERMAN, CNN ANCHOR: There is also the stunning argument being floated by the president's attorney. We use the word "stunning." Others have said it's remarkable, but honestly, it's somewhere between bizarre and nuts. Listen to Alan Dershowitz on the floor of the U.S. Senate.

(BEGIN VIDEO CLIP)

ALAN DERSHOWITZ, HARVARD LAW PROFESSOR EMERITUS: If the 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)

BERMAN: Think about that for a sending. Dershowitz says, if a president believes his own reelection is in the public interest, and what candidate doesn't think that, he has a green light to use his power however he wants to win. Forget this president for a second. Forget this trial for a second. That argument has profound, if not staggering implications for the presidency and the country.

Let's bring in David Axelrod, CNN senior political commentator, David Gregory, CNN political analyst Rachael Bade, congressional reporter for "The Washington Post" and a CNN political analyst. And Axe, I want to start with you, because oftentimes you have ice water in your veins and can calmly look at things. But there were a lot of people alarmed by what Professor Dershowitz said on the Senate floor, because the argument is that a candidate who thinks that he or she, if they get elected, it's good for America, they can do anything to get elected. And that changes. That changes the country, it changes the presidency.

DAVID AXELROD, CNN SENIOR POLITICAL COMMENTATOR: Yes, a lot of people were alarmed, but there was one person a few miles down the road who was nodding his head as Dershowitz said that, and that's the president of the United States because, in a sense, we know that's what he believes. He does not believe in rules or laws or norms or institutions. He believes he is the state. He has absolute power. He's said that. And that in effect is what this whole impeachment is about. What he did was way out of bounds in dealing with the Ukrainians, and then he basically said to Congress, you have no right to provide the oversight that the Constitution says you are entitled to provide.

And the dangerous thing about this whole exercise is we know that he's not going to be removed from office. There are not 67 votes to remove him from office. It's meant to be hard and it is hard, and it's not going to happen. But the fact that his lawyers and supporters in the Senate say he did absolutely nothing wrong will change the norms completely in the future and really has expanded executive power in this country beyond anything anyone could imagine. It's also an act of legislative self-emasculation. They are essentially surrendering that power to him.

So Dershowitz stunned people with what he said, but in certain ways he said what was in the bubble box above other people's heads around the president.

CAMEROTA: I think it's worth hearing a little bit more about the argument that Alan Dershowitz was making, because he put a finer point on it, David Gregory. So listen to Alan Dershowitz again.

(BEGIN VIDEO CLIP)

ALAN DERSHOWITZ, HARVARD LAW PROFESSOR EMERITUS: But a complex middle case is, I want to be elected. I think I'm a great president. I think I'm the greatest president there ever was, and if I'm not elected, the national interest will suffer greatly. That cannot be an impeachable offense.

(END VIDEO CLIP)

CAMEROTA: He said that cannot be an impeachable offense, David.

DAVID GREGORY, CNN POLITICAL ANALYST: There's an effort on the part of the defense to offer all kinds of justifications for Republicans to say later publicly in a political setting, look, the process was flawed or the president has the right to do this or we shouldn't do it in an election year. But at some point, in a political process, people have to sit back and say, so what does this say? What do we do in the future to curb this kind of behavior on the part of a president?

And that's where we will end this impeachment process. Whatever you think about the process or what you think about Donald Trump saying, well, what is the message to a future president? And that is what is so disturbing. So I see Dershowitz making a ridiculous argument, really in the service of giving Republicans something to grab onto. There's a multiple-choice section of rationales for saying this is not the time to remove a president. And it is hard in an election year.

[08:05:00]

But as David said, one of the reverberations from this impeachment proceeding is, what will it mean for a future Democratic president? Will Republicans launch impeachment proceedings over policy differences there? Will that be the tit-for-tat? Well, Dershowitz' argument suggests that, again, you are setting up an executive power scaffolding here that's almost impenetrable on matters of national security, as well as matters of conduct of policy.

BERMAN: Also just matters of subjective choice.

AXELROD: Can I just say, John, can I just add one thing here, because there are also implications for this political campaign, because basically Dershowitz was articulating the view of Donald Trump and his campaign, which is anything goes. Anything that you need to do, any disinformation, any lie, any cheating, any of that is OK in service of this larger purpose of reelecting the president. That makes it really, really difficult for anyone opposing Donald Trump who is playing by the rules, because it's asymmetric warfare.

CAMEROTA: He said he could shoot someone on Fifth Avenue and --

AXELROD: And so there are implications in the near term as well as the long term.

CAMEROTA: Yes, and still get support. Dershowitz was almost saying that. He was saying that.

BERMAN: He did say that. He said exactly that. Not the Fifth Avenue part, but exactly what David said. And he said it on the floor of the Senate in front of the chief justice, and he sort of indicated there's a constitutional basis for it. That's what's so alarming there.

Rachael, we know how the vote to convict the president will go. It's a little bit less clear where the vote on witnesses will be. We'll talk about that in a second. But is there any indication that any senator on the Republican side is going to stand up this morning and say, I don't think the president should be removed from office, but what Alan Dershowitz said is crazy?

RACHAEL BADE, CNN POLITICAL ANALYST: It's funny because he is both a hero for them in their eyes, and somebody that now they have to put distance between themselves and him. After he first appeared on the Senate floor after the Bolton revelation, a lot of Republicans who didn't know how to react to the Bolton news and this fact that Bolton in his book apparently ties the president's words specifically in what he heard to holding the Ukraine money for this investigation of the Bidens, they didn't know what to say. They didn't know how to react.

And Dershowitz appeared on the floor the next day and made this sort of argument that, hey, even if this is true, it's not impeachable. Therefore, you don't need to hear from any more witnesses. You can move on. I heard a number of Senate Republicans echoing that same point the very next day, or even just hours after Dershowitz performed, including one, you know, Thom Tillis, who is up for reelection. He is in a tough spot. He has sort of not weighed in, and after that, he was saying, look, Dershowitz said this is not impeachable. Therefore, we don't need to see more witnesses.

So in that regard, a lot of Republicans were looking at him and saying, thank goodness he made this argument. This gives us a reason to say we don't need to hear from John Bolton. However, he took it a step further, as you guys are talking about yesterday, when he said Trump can do whatever he wants if he thinks it's in the public interest to get reelected. He can do whatever he wants to get that election, including a quid pro quo.

I was out in one of those reporter pens trying to talk to members as they were leaving the chamber after that exchange, and we had two Senate Republicans come up to us. One of them was Tim Scott. The other was Jim Barrasso. And we asked them about this. Tim Scott says I'm going to step away right now and keep walking after we asked that question, which showed some discomfort with the question. The other one, John Barrasso, basically said, no, I think you're mistaking the point. That's not what he was saying.

That was what he was saying. And so you could see some Republicans a little uncomfortable. I don't think they're going to want to talk about this argument. They're going to try to seize on Dershowitz's other argument, that this is not impeachable. But obviously he's a controversial figure right now, and Republicans are both seeing him as a blessing and a curse.

CAMEROTA: David Gregory?

GREGORY: Can I raise another point, too? It's not just those points. There are Republican senators who are just in lockstep with the president who don't want to get into the substance of this. They'll just dismiss it for process or politics. Those who are paying pretty close attention and who are seriously weighing the issue of witnesses, for example, Murkowski and Collins and Senator Romney. Asking that question about basically, look, what if the president had mixed motives. What if he had good motives and bad motives for why he wanted to go down this road? That's where I think they are getting an answer from the president's lawyers at least, to give them something to hang their hat on to justify voting to acquit him.

CAMEROTA: They are hanging their hat on Alan Dershowitz. I hear so many of them, as you pointed out, Rachael, saying, well, that's what Professor Dershowitz said. He's a professor emeritus at Harvard. But of course, the problem is that his opinion is a moving target, as we all know. He felt completely differently about what constituted a crime and whether you needed a crime for impeachment back in 1999. We've all seen the videotape.

[08:10:06]

And so chances are he will feel differently yet again. And so to hang your political future and your convictions on Alan Dershowitz, Alan Dershowitz is one of these people who I think can argue any side. He's a good debater. BERMAN: O.J. Simpson, not guilty, for instance, for instance, for

instance. I'm just putting that out there.

CAMEROTA: And so, David Axelrod, if it goes the way it looks like it's going to go, and we'll get the vote count in a second. But if it goes the way that there will be no witnesses, Democrats seem as though they'll be very disappointed. But is it possible that politically speaking this will be a win for Democrats because they'll always be able to say those Republicans wouldn't allow the facts to come out?

AXELROD: Well, obviously, that's going to be an issue. And it's particularly important for some of those Republicans who are difficult races. But they're between a rock and a hard place because they're reliant on the Republican base to come out in force for them. They're counting on that. And so they have to choose between enraging the Republican base for whom this has become a test of loyalty, and swing voters who very much want to hear from these witnesses.

My guess is that most of them are going to choose to stick with the president on this because without their base, they're lost. But it will be an issue, that will be an issue in the campaign. It is a long way from November, and we'll see if it sticks. But I think it's a big issue, and I think they know it.

BERMAN: Particularly if more information keeps coming out.

GREGORY: The difficulty for Republicans --

BERMAN: It can come out now and can come out later. I'm so sorry to cut you off, David, because we're just about out of time and I want to get Rachael, who has been covering Congress and working the phones all night long just on what the votes -- where the votes are currently from your count on witnesses.

BADE: Yes, so I talked to a senior administration official yesterday, and he was basically telling me, they feel like they're in the same place they were before the Bolton news, back to where they were, back to four potential Republicans who could vote for witnesses, but they think there's not going to be a fourth one. Everybody, as you mentioned in the opening, is watching Lamar Alexander who is retiring, and so a lot of people think he may be free from any political blowback to vote his conscience. He has done bipartisan work in the past, including an effort to try to save and recreate Obamacare, which was bipartisan, and a lot of people think he could vote yes.

However, he's very close with Mitch McConnell. And to sort of see him as being the person that pushed this into six more weeks of a potential trial to bring in all these different witnesses, a lot of people think he's not going to be there, including folks at the White House and senior Republicans that I am talking to. So we'll have to see, but Republicans are sounding more confident by the hour.

BERMAN: David Gregory, we want you in overtime period. What's your last word?

(LAUGHTER) GREGORY: For Republicans, they want to put this behind them and hope that voters forget by November. Democrats have two things. One, the argument this was a sham trial, there's no witnesses, and, two, John Bolton is not going away. There will be a legal fight over his book, potentially, but once he has to say what he has to say, that's something that Democrats will no doubt try to use against this president in this election year.

BERMAN: David, David, and Rachael, thank you very much for that.

So what was it like to be on the floor during this question and answer period? What questions surprised the managers or the president's defense team? What questions were outrageous? We will speak to one of the House managers, next.

(COMMERCIAL BREAK)

[08:17:13]

(BEGIN VIDEO CLIP)

REP. JASON CROW (D-CO): If you have any lingering questions about direct evidence, any thoughts about anything we just talked about, anything I just relayed, or that we've talked about the last week, there is a way to shed additional light on it. You can subpoena Ambassador Bolton and ask him that question directly.

(END VIDEO CLIP)

JOHN BERMAN, CNN ANCHOR: That was House impeachment manager, Congressman Jason Crow from Colorado, on the floor of the Senate during the question and answer session yesterday. Another day ahead today.

Joining us now is Congressman Jason Crow.

Thanks so much for being with us.

I have to say, it was such an interesting moment to see that back and forth, to see the questions and answers. Interesting in a way a little bit odd.

So, I'm wondering what it was like to you. Did it feel like sometimes batting practice because each side was sort of lobbing up these balls for the managers, for instance, to hit if you wanted to? What was it like?

CROW: Well, you know, interesting would be one word for it. Astounding would be another. I mean, there were a couple of things that -- frankly, I just couldn't imagine I was hearing on the floor.

You know, having Mr. Dershowitz say that because every elected official believes that what they're doing is the right thing, that that presumptively makes it the right thing.

We saw the president continue to move the goalposts. You know, at first, they're saying at the beginning of the trial there's no quid pro quo. Then they're saying that the quid pro quo isn't impeachable. Then when it becomes abundantly clear to everybody in that room and the American people that what the president did was wrong, and he did it, then they're saying move on because what the president does is just presumptively the right thing.

So, they are throwing everything out. They're throwing contradictory arguments at this point. They're saying that the process was unfair, but then they're saying that they're not willing to go through a fair process because it would take too long. So, we're really in unchartered territory here.

BERMAN: We'll bring -- you brought up the Alan Dershowitz argument. That is something we have talked about all morning long. What are the implications if that argument --

CROW: Well, the imp --

(CROSSTALK)

BERMAN: What are the implications if that argument -- and just to rephrase it, Alan Dershowitz is basically saying, every president -- every presidential candidate thinks that he or she -- their election will make the country better. So, therefore, anything that he or she does in the process of getting elected is fair game. You can do anything. Anything you do is not impeachable.

What's the implication if that becomes part of precedent?

CROW: Well, the implication is what the president and his team have been implying all along. And that is that the president is above the law. You know, since day one of this process, they've been saying that a sitting president can't be indicted, that a sitting president can't be investigated, that the House has no power to investigate or subpoena or question witnesses or members of the executive branch.

And now, they're saying that there is no impeachment power. So, that would truly, if you follow all of that logic, it would make the president above the law. I'm very confident that's not what our Framers intended and what has made our system so wonderful the last 240-plus years.

[08:20:06]

But that's what they want you to believe. And it's a very dangerous thing.

BERMAN: Were there any questions or what were the questions that you -- that came from Republicans that you thought were insightful?

CROW: Well, there were some -- there were some insightful questions about the standard of proof here. You know, I know some of the folks who, you know, have said they're on the fence were wondering, what is the standard? You know, is this a criminal trial? Is this beyond a reasonable doubt? Is this preponderance of the evidence? I thought it was an insightful question and it, you know, it's something that people should be thinking about, you know, because the Constitution doesn't lay out a clear standard. They put that into the hands of the Senate to say, you know, what abuse of power is and to apply that using best judgment. So that was an insightful question.

I was continued -- I continue to be really shocked, though, however, by the sowing of these propaganda theories. You know, these widely debunked Russian propaganda conspiracy theories about Burisma and Ukrainian involvement in the election.

You know, one thing we've learned the last few years is that the words of our leaders matter. And when people say these things and they say them on a broad scale, on a big stage with people listening, it matters, and it's irresponsible.

So, I think we need to stop talking about these things that have been widely debunked by our own intelligence and law enforcement agencies.

BERMAN: There's something remarkable that CNN has reported was going on behind the scenes and that is that Senator Rand Paul of Kentucky was trying to get the name of the whistle-blower read into the record. And, apparently, the Chief Justice of the United States John Roberts kept that from happening.

Senator Rand Paul said overnight he's going to try again today. So, I want your reaction to that and what you will do as House managers if it does happen.

CROW: Well, I'm glad that the chief justice stopped that because it's dangerous. You know, we have federal law that protects whistle- blowers. And the reason we have law that protects whistle-blowers is because we want to be able to have whistle-blowers.

It's really important element of our system that if something is going wrong in government, whether it's local government, state government, federal government, that people have the safety and security to come forward and blow the whistle. So, people can find out if something wrong happened.

And a lot of things have been corrected over the history of our country because of courageous men and women have done -- that have done just that.

So they clearly want the whistle-blower outed or some folks do because they want to intimidate the whistle-blower. They want to make sure that this person, you know, doesn't -- doesn't do anything in the future. And they want to prevent other people from doing it, too.

You know, intimidation and threats is part of the pattern and practice of this administration and it's yet another reason why it continues to be very dangerous.

BERMAN: One of the arguments that some Republicans have made against calling new witnesses, including John Bolton is that they say, OK, even if John Bolton does say that the president indicated that aid to Ukraine was tied to investigating the Bidens, we'll accept that he said that. We still don't think the president should be removed from office. So, why do we need to extend the trial even more to make the vote when we already know what our vote is going to be?

How do you explain that argument?

CROW: Well, there are -- yes, certainly, there are some that have been saying that. But there are others that haven't, that continue to contest the fact. So, if you continue to contest the fact, that puts it in issue and you need the evidence to confirm whether or not it's true. So, that's an important point.

The second point that the American people deserve to have information. This is a trial that the American people are watching very closely. They deserve to have the complete picture of what happened.

They continue to say over and over again, they being the president and his lawyers, that they had no direct evidence, that nobody has testified directly to what the president has said. And then you have John Bolton saying this. So, let's get the full picture out there and let's have actually -- a fair trial.

BERMAN: Now, you're concentrating on your job as a House manager prosecuting a case right now, but there's politics and there will be politics going forward.

Of the House managers, I think you're in the district that is the closest in terms of Republicans and Democrats. And then Colorado is a swing state in terms of the Senate for sure.

And Cory Gardner, the senator from Colorado, came out overnight and said he is a no vote on witnesses. He has heard enough. He knows that he doesn't want to hear witnesses.

How do you think that will affect Cory Gardner's re-election campaign in Colorado?

CROW: I don't think it's appropriate for me to weigh in on any individual senator/juror at this point. You know, I'm a prosecutor in this case. All senators are sitting as jurors right now.

I would hope that, you know, Mr. Gardner, like all senators, would actually take their oath to be an impartial juror seriously to listen to all the facts and the evidence. I continue to say that to have a fair trial requires witnesses and documents. Any American who goes into a courtroom and raises their right hand and becomes a juror knows that.

I mean, right now, tens of thousands of Americans are filing into courtrooms today to fulfill their constitutional duty to be a juror. They're going to take their oath and then they're going to hear witnesses and they're going to review documents.

[08:20:02] So, why should the president and what happens here in Washington be any different? Of course, the answer is that it shouldn't and every American knows that.

BERMAN: Congressman Jason Crow from Colorado, thanks for being with us this morning.

CROW: Thank you.

BERMAN: Alisyn?

ALISYN CAMEROTA, CNN ANCHOR: The crash that took Kobe Bryant and his daughter's lives also killed seven other people. We remember a mother and daughter who died as well, next.

(COMMERCIAL BREAK)

BERMAN: Nine people died in Sunday's helicopter crash that killed NBA great Kobe Bryant and his 13-year-old daughter Gianna. Sarah and Payton Chester were also killed. They were mother and daughter. Payton was one of Gianna's basketball teammates.

With me now is Todd Schmidt. He is the former principal of Harbor View Elementary School where Payton Chester was a student.

Dr. Schmidt, thank you so much for being with us.

I know this has been hard for you as it's been hard for everyone who was close to the people who were lost in that helicopter. You call the Chesters a dream family. Tell us why.

TODD SCHMIDT, FORMER PRINCIPAL, HARBOR VIEW ELEMENTARY SCHOOL: You know, as a principal, you get to work with so many fantastic families. One of the things always amazing about the Chesters.

END