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Impeachment Trial Resumes With Senate Questions. Aired 6-7p ET
Aired January 30, 2020 - 18:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[18:00:00] SEKULOW: When the hearing took place before the Judiciary Committee, if I'm not mistaken, Manager Nadler, you had four witnesses, I think, at one point, when you had the law professors? And there was three law professors from the Democratic side, and there was one from the Republican side.
So if we're going to take that same four-to-one analysis, for every one of their witnesses, we should get four. But there was a question earlier asked, about the fruit of the poisonous tree. The taint of the poison does not age well. The longer it goes, does not make that poison go away. It gets deeper and deeper into the soil.
And here, the soil we're talking about is a trial that would be not only ongoing, but they put up 17 witnesses. You heard them, they're acting like there's been no witnesses presented here. They presented testimony -- 17.
They may not have liked that we were able to respond to those 17 by playing those witnesses' words -- by the way, those witnesses, the testimony of those witnesses were never done with cross-examination by the counsel for the president.
So does this end? Will it ever be enough? It'll (ph) only be enough if they got a conviction. Because that's what it's about. Because let's forget -- not forget for a moment, this has been going on, in one stage or another, for three and a half -- three years now.
My concern is, there's not a -- where's the end point in that? So their end point is, well, just give us John Bolton and then, you know, you don't get anybody and -- you get -- or then, you know, you get one and we get one, and then that one may lead to somebody else.
It's not the way it works. So they've said "overwhelming," "proved," 63 times, 63 times. And as we're three hours away from answering the end of the question section, we're about to go into the -- I mean, it sounds like we've been arguing about witnesses for the last couple hours, but that starts tomorrow.
But do I think that there will be -- is it our position that there will be a recognition that there's -- due process has been reached, and we've reached the happy accord? No, I do not believe that.
I also don't believe that -- what can be cured here. I don't think what they did can be cured here by anything you were to do, as far as witnesses or anything else. That process was so tainted. And I thought Mr. Philbin did a very effective job of explaining -- painstakingly now, and multiple times, I know -- the issue of those subpoenas. And I thought the perfect analysis was when one of the managers said, well, when the people file Freedom of Information Act requests, they get answers. And Mr. Philbin said, that's because they followed the law, they followed the rules. That is not what happened here.
Thank you, Mr. Chief Justice.
J. ROBERTS: Thank you, Counsel.
CARPER: Mr. Chief...
J. ROBERTS: The senator from Delaware.
CARPER: Mr. Chief Justice, on behalf of our colleagues, Senators Booker, Cardin, Kaine, Markey, Menendez, Merkley, Murphy and Shaheen, I send a question to the desk for our House managers.
J. ROBERTS: Thank you.
CARPER: Thank you.
J. ROBERTS: The question from Senator Carper and the other senators addressed to the House managers: The president's aides and defenders have claimed that it is normal or usual to use U.S. foreign assistance as the president did, to achieve a desired outcome.
How was the president's act in withholding U.S. security assistance to Ukraine different from how the U.S. uses foreign assistance to achieve foreign policy goals and national security objectives? And how should we evaluate the defense argument that this is, quote, "what is done all the time," end quote?
CROW: Mr. Chief Justice, Senators, thank you for the question.
So to understand the answer to this, you don't have to look inside the president's mind, you just have to look at recent history, and then what was done last year.
As I talked about earlier, and even yesterday, other presidents have held holds and aid for legitimate reasons, even this president. We concede that, but there are a variety of legitimate policy reasons for holding aid, whether it be corruption or burden-sharing.
So even in the president's other holds, like Afghanistan, because of concerns about terrorism, or Central America because of immigration concerns. And even though some might disagree with that, that is a legitimate policy debate.
The difference here is that every witness testified -- these 17 witnesses that you hear about -- testified that there was no reason provided for the implementation of this hold. Right?
I talked about, earlier, how there is a process for doing this, right? There is a -- there is a well-prescribed process for allocating the funds, like we all did here in this chamber, and 87 of you agreed on. And then an interagency process to review it, to make sure that it meets the standards and criteria outlined by this body: anti- corruption reforms.
And that was done in this case, that interagency process was followed, that certification was made, the notification to Congress was conducted. The train had left the station, just like the train had left the station in 2018, in 2017, in 2016. And every element of the agencies and the bureaucracy involved in that process in prior years had been engaged and had signed off.
Except this year, in 2019, rather, that all changed. A hold was implemented for no known reason; there was no notification given to Congress, which violated the Impoundment Control Act.
DOD, Department of State, Secretary Esper, Secretary Pompeo, even Vice President Pence and the entire National Security Council implored the president to release the aid because it not only had met all of the certifications, but it was in the U.S. national interest and consistent with U.S. policy. And yet nobody knew why it happened.
And to this day, the individual who could shed light on this, Mr. Bolton, is being prohibited from coming forward to explain why the president told him it happened. So, yes, it is still a good time to subpoena Ambassador Bolton and get that information.
J. ROBERTS: Thank you, Mr. Manager.
The senator from North Carolina?
BURR: Mr. Chief Justice, I have a question for both sets of counsels, sponsored by myself, Senator Cruz, Senator Scott of South Carolina, Hawley, Sasse and Rubio.
J. ROBERTS: Thank you.
The question from Senator Burr and the other senators is for both parties; the House will answer first: Hillary Clinton's campaign and the Democratic National Committee hired a retired foreign spy to work with Russian contacts to build a dossier of opposition research against her political opponent, Donald Trump.
Under the House managers' standard, would the Steele dossier be considered as foreign interference in a U.S. election, a violation of the law and-or an impeachable offense?
JEFFRIES: Thank you, Mr. Chief Justice and distinguished Senators, I thank you for the question.
The analogy is not applicable to the present situation because, first, to the extent that opposition research was obtained, it was opposition research that was purchased. But this speaks to the underlying issue of the avoidance of facts, the avoidance of the reality of what President Trump did in this particular circumstance.
Now, I have tremendous respect for the president's counsel, but one of the arguments that we consistently hear on the floor of this Senate, this great institution in America's democracy, is conspiracy theory after conspiracy theory after conspiracy theory.
We've heard about the deep state conspiracy theory, we've heard about the Adam Schiff-is-the-root-of-all-evil conspiracy theory, we've heard about the Burisma conspiracy theory, we've heard about the CrowdStrike conspiracy theory, we've heard about the whistleblower conspiracy theory.
It's hard to keep count. This is the Senate, this is America's most exclusive political club, this is the world's greatest deliberative body, and all you offer us is conspiracy theories because you can't address the facts in this case, that the president corruptly abused his power to target an American citizen for political and personal gain?
He tried to cheat in the election by soliciting foreign interference. That is an impeachable offense, that is a crime against the Constitution, that is the reason that we are here, that is what is before this great body of distinguished senators.
J. ROBERTS: Thank you, Mr. Manager.
SEKULOW: Mr. Chief Justice, members of the Senate, so I guess you could buy -- that's what it sounds like, you can buy a foreign interference, if you purchase it, you purchase their opposition research I guess it's OK. So let me try to debunk the conspiracy, Manager Jeffries, and that is, it is not a conspiracy that Christopher Steele was engaged to obtain and prepare a dossier on the president -- the presidential candidate for the Republican candidate Donald Trump.
It is not a conspiracy that Christopher Steele utilized his network of assets, including assets apparently in Russia, to draft the dossier. It is not a conspiracy that the dossier was shared with the Department of Justice through Bruce Ohr, who was the number four ranking member of the Department of Justice at that time, because his wife Nellie Ohr happened to be working for the organization Fusion GPS that was putting the dossier together.
This is also not a conspiracy. It sounds like one, except it's real. And it's also not a conspiracy that that dossier, purchased dossier, was taken by the FBI, submitted to the Foreign Intelligence Surveillance Court to obtain a foreign intelligence surveillance order on an American citizen.
It is also not a conspiracy that that court issued an order, two of them now, condemning the FBI's practice, and acknowledging that many of those orders were not properly issued. None of that is a conspiracy theory, that's just the facts.
J. ROBERTS: Thank you, Counsel.
The senator from Wisconsin.
BALDWIN: Mr. Chief Justice, I send a question to the desk for both president's counsel and House managers.
J. ROBERTS: Thank you.
The question from Senator Baldwin is for both parties, and the counsel for the president will answer first. Can you assure us that the Jennifer Williams document submitted to the House was not classified secret for any reasons prohibited by Executive Order 13526, such as preventing embarrassment to a person? If yes, please describe or identify the serious damage to national security that would be cause by declassifying this document pursuant to the same executive order.
PHILBIN: Mr. Chief Justice and senator, in response to your question, the Trump administration's policy is always to abide by the requirements for classification of material. And the classification -- my understanding is that that document is derivatively (ph) classified because it refers to another document, a transcript that was originally classified.
I can't represent you the specific reasons that the classification officer classified that document, but I can tell you that it was originally classified according to proper procedures. It is a properly classified document, because that is the policy of the administration, to follow the classification procedures.
The memorandum that she admitted is derivatively classified because of that transcript. Now that transcript relates to a conversation with a foreign head of state. Almost all conversations with foreign heads of state are classified. And they're classified because the confidentiality related to those communications is important for ensuring that there can be candid conversations with foreign heads of state.
The president took an extraordinary action in declassifying two of his conversations with foreign heads of state, unprecedented, because he carefully weighed the balance of what was at stake in this case and the need for transparency for the American public in those two conversations. But that was an exception to the usual rule that such conversations are properly classified.
J. ROBERTS: Thank you, Counsel.
SCHIFF: I would encourage you, if you haven't already had the opportunity, to read that document for yourself, and ask you whether you think there is any legitimate basis to classify that supplemental testimony. Now the vice president has said that he had no knowledge of this scheme. He has denied any knowledge, involvement in any way, shape, or form.
We heard the testimony from Ambassador Sondland that Ambassador Sondland raised with the vice president that the aid was being held up and was tied to these investigations. And the vice president didn't say, what are you talking about? That could never be, the president would never allow such a thing.
There was nothing but a silent nod of acknowledgment with what he was being told. But nonetheless, the president, the vice president says, that he knew nothing. And the vice president points to the open testimony of Jennifer Williams to support that contention.
But the classified submission goes to that phone call between the vice president and President Zelensky. You should read that and ask yourself whether that submission is being classified because it would either embarrass or undermine what the president and vice president are saying, or there is some legitimate reason.
Now the vice president at one point said that he wanted to release the record of his call. He certainly talked all about this issue, as has the president. If it was so classified, then why are they all talking about it? But we are to be assured that this -- no, this classification decision was made absolutely above-board. I'm sure that John Bolton's manuscript will be treated with the same rigid objective scrutiny.
You read that. Don't take my word for it. You read that and you ask yourselves, is there is anything that other than avoiding evidence that the administration doesn't want you to see, that the public should not see Jennifer Williams' supplemental testimony?
I don't think you can conclude that it is except that it would be inconsistent with what you're being told and what the American people are being told. Well, they deserve the whole truth. And that's part of the truth. So let the public see it.
J. ROBERTS: Thank you, Mr. Manager.
ALEXANDER: Mr. Chief Justice.
J. ROBERTS: The senator from Tennessee.
ALEXANDER: Thank you, Mr. Chief Justice. I send a question to the desk on behalf of myself, Senator Daines, and Senator Cruz.
J. ROBERTS: Thank you. The question from senators Alexander, Daines and Cruz is for the House managers - "Compare the bipartisanship in the Nixon, Clinton and Trump impeachment proceedings. Specifically, how bipartisan was the vote in the House of Representatives to authorize and direct the House committees to begin formal impeachment inquiries for each of the three presidents."
LOFGREN: Mr. Chief Justice and senators, in the Nixon impeachment, we look back and we think about the vote on the House Judiciary Committee that ended up bipartisan but it didn't start that way. The parties were as dug in as parties are today. The Republicans and Democrats saw it differently.
But as the evidence emerged, a bipartisan consensus emerged on the committee and a number of Republicans - Tom Railsback, who just passed away, Caldwell Butler, who loved Richard Nixon, he was a huge fan of Richard Nixon - but they couldn't turn away from the evidence that their President had committed abuse of power, cheat in the election and that he - they had to vote to impeach him.
When it came to the Clinton impeachment, that was, again - it started out along very partisan lines and it ended along partisan lines. And I believe the reason why, as I said a short while earlier, was that we never had a high crime and misdemeanor. That was the problem.
With Nixon, we had clear abuse of presidential authority to upend the constitutional scheme, to - to cheat in an election and members of both parties voted to impeach. With Clinton, we had private misconduct - yes, I think, probably a crime, because he lied about that under oath, but it wasn't misuse of presidential authority, as I said. Any husband caught in an affair could've lied about it and it didn't involve the use of presidential authority. And so we never got beyond our partisan divisions on that and many of us - and I will include myself - believe that it was being done for a partisan purpose because it didn't reach a high crime and misdemeanor.
In the Trump case - and I'll say I've been disappointed because I serve with a number of Republicans in the House who I like, who I respect, who I work with on legislation, and I honestly believed that when this evidence came out, as with in the Nixon administration, we would have a coming together but it didn't happen, much to my disappointment.
I think you have a new opportunity here in the Senate. For one thing, it is a smaller body. You are, as has been mentioned, the greatest deliberative body on the planet. You have an opportunity to do something that we didn't have the chance to do, which is to call firsthand witnesses and hear from them.
We have a lot of things happened since the impeachment articles were adopted. One of them was - were e-mails that have been released that we didn't know about. See - the - it's been said that - by counsel that the Freedom of Information Act information just shows if you follow the process, you get information. No, they had to sue and they're still in a - in a lockdown fight over the Freedom of Information Act and the redactions that were not proper. So that's a big fight that is still going on but we got information.
But most tellingly, Mr. Bolton has now stepped forward and said he wants - he's willing to testify, he is willing to come here and testify under oath and I think we would all learn something. And as Mr. Schiff has mentioned, I think we can structure this in such a way that it would respect the Senate's need to do other business, which we also feel in the House.
Let's get that done and let's see if that kind of information can help the senators come together as happened in the House Judiciary Committee so many years ago when we dealt with the serious problem of presidential misconduct, abuse of power to cheat in an election when Richard Nixon shocked the nation and ultimately had to resign.
J. ROBERTS: Thank you, Ms. Manager.
SCHUMER: Mr. Chief Justice?
J. ROBERTS: The Democratic Leader is recognized.
SCHUMER: I send a question to the desk for the House managers.
J. ROBERTS: Thank you. The question from Senator Schumer for the House managers - "Many of our colleagues are worried that if we were able to bring witnesses and documents in the trial, it would take too long. Mr. Schiff mentioned we could do depositions in one week. Please elaborate. What can you say that will reassure us that having witnesses and documents can be done in a short time, minimally impeding the business of the Senate?"
SCHIFF: I thank the Senator for the question. First of all, with respect to the documents that we subpoenaed and sought to get in the House, those documents have been collected. So that work has been done. We've been informed, for example, the State Department documents have been collected. Those could readily be provided to the Senate for its consideration.
With respect to witnesses, if we agree to a one week period to do depositions while you continue to conduct the business of the Senate, it doesn't mean that we would have unlimited witnesses during that week. What we would have to - we would have to decide on witnesses who are relevant and probative of the issues. Neither side would have an unlimited capacity to call endless witnesses. We would have a limited period of time, just as we had a limited period of time for our opening presentations and for this question and answer period.
If there was any dispute over whether a witness is truly material and probative, that decision could be made by the Chief Justice in very short order. If there was a dispute as to whether a passage in a document is covered by an applicable privilege, and if, for the first time, the White House would actually invoke a privilege, the Chief Justice could decide is that properly laid or is that merely an attempt to conceal a crime or fraud?
So this can be done very quickly, this can be done, I think, effectively. We have never sought to depose every witness under the face of the sun. We have specified four in particular that we think are particularly appropriate and - and relevant here. But we should be able to reach an agreement on concluding that process within a week.
So that's how we would contemplated that it being done. We make that proposal to our opposing counsel. It would be respectful of your time. It would, I think, be a reasonable accommodation. The counsel says that the Constitution mandates a reasonable accommodation. Well, let's have a reasonable accommodation here. And a reasonable accommodation would be -- would (ph) take one week. You'll continue with the business in the Senate, we'll do the depositions and then we'll come back and we'll present to you what the witnesses had to say in those depositions and that's how we contemplate the process would work.
J. ROBERTS: Thank you, Mr. Manager. The Majority Leader is recognized.
MCCONNELL: Mr. Chief Justice, I'm about to send a question to the desk but I'm going to suggest that following the response to my question and one more democratic question we take a 45 minute break for dinner. So I send a question to the desk.
J. ROBERTS: I'm sure there's no objection. The senator from the Majority Leader is for the counsel for the president. Would you please respond to the question on bipartisanship by Senator Alexander and any assertions they House Managers made in response to any of the previous questions?
PHILBIN: Mr. Chief Justice, Majority leader; thank you for that question. And in response to Senator Lamar's question about bipartisanship, I -- I -- excuse me, I beg your pardon -- Senator Alexander.
Senator Alexander, your question, the -- in the Nixon case the authorizing resolution, this is in the House to authorize the inquiry was passed by a vote of 410 to 4. 410 voted in favor of the inquiry, only four voted against. [18:30:00]
232 Democrats, 177 Republicans, and one Independent voted in favor. In the Clinton authorizing resolution, this was House Resolution 581 to actually authorize just the beginning of the inquiry that passed by a vote of 258 to 176. 31 Democrats joined 227 Republicans voting in favor of authorizing that inquiry.
That was substantial bipartisan support to authorize the inquiry. In this case, House Resolution 660, which was passed on October 31, had bipartisan opposition. The votes in favor of the resolution were 231 Democrats and one Independent. The opposition was all Republicans 194 plus two Democrats voting against.
In terms of other assertions that have been made. There are just a couple of points I wanted to touch on. There's been a lot said about House Managers have suggested that the Counsel for the president have argued that the president could do anything he wants now.
To solicit foreign interference in any election if -- if he thinks it will help him get elected that's OK that that's the theory of the case. That is absolutely false. That is a gross distortion of what has been presented.
And let me make a couple of points about that. There have been questions about the campaign finance laws. And one narrow point that w e have made in response to specific questions about the campaign finance laws it's simply that information, limited information being presented to a party is not a contribution, a thing of value under the campaign finance laws.
And that it's not just my conclusion that's what the Mueller report said. When the Mueller report looked into this said no judicial decision has treated the voluntary provision of uncompensated opposition research for similar information as a thing of value that could amount to a contribution under campaign finance law.
That was volume one on page 187. So that's a limited point. The bigger point, the suggestion has been made because of Professor Dershowitz's comments that the theory that the president's counsel is advancing is the president can do anything he wants if he thinks it will advance his re-election.
Any quid pro quo, anything he wants, anything goes. And that is not true. Professor Dershowitz today issues a statement to show that that was an exaggeration of what he was saying. But let me make the even more narrow point.
Aside from what professor Dershowitz was saying the other night and explaining in abstract and hypothetical terms and academic terms, we have a specific case here. And the specific case here is the one that's been framed by the House managers.
And the defects in that case and their theory of the case are; a theory of abuse of power that involves no allegation of a crime what so ever, no allegation of a violation of established law.
Instead the theory that you can take action at honest face is objectively permissible under the powers of the president and determine that it's going to be treated as impeachable and impermissible solely on an inquiry into subjective motives.
That's what the House Judiciary Committee report says. That is a theory that is infinitely malleable. It provides no standard, no real standard at all. And that was one core point that Professor Dershowitz was making that it is tantamount to impeach when for mal-administrion (ph).
And the other point I'll make is they set the stand for themselves with respect to investigations that they have to establish in order to establish their bad motive that there's not a scintilla of evidence, there is nothing that you can look at that would suggest any possible legitimate national interest in acquiring into 2016 election interference or the Biden-Burisma affair.
They can't possibly meet that standard. It is over determined that there is a -- there is a legitimate policy interest in at least raising a question about those things. Thank you.
J. ROBERTS: Thank you, Counsel.
COONS: Mr. Chief Justice.
J. ROBERTS: Yes. The senator from Delaware. COONS: On behalf of myself and Senator Klobuchar I send a question to the desk addressed to the president's counsel and the House Managers.
J. ROBERTS: Thank you. The House will go first in answering the question from Senator COONS and Klobuchar. Mr. Sekulow said earlier that the president's counsel would expect to call their own witnesses in the trial if Mr. Bolton or others are called by the House Managers. Can you tell the Senate if any of those witnesses would have firsthand knowledge of the charges against the president and his actions.
SCHIFF: Mr. Justice, Senator; there certainly are witnesses that the president could call with firsthand information. I don't know that they're -- the witnesses that they have described so far, their position is apparently if you are the chair of a committee doing an investigation that makes you a relevant witnesses.
It doesn't or you've all become witnesses in your own investigations. They want to call Joe Biden as a witness. Joe Biden can't tell us why military aid was withheld from Ukraine while it was fighting a war, Joe Biden can't tell us why President Zelensky couldn't get in the door of the White House while the Russian Foreign Minister could. He's not in a position to answer those questions. He can't tell us whether this rises to an impeachable abuse of power, although he probably has opinions on the subject.
But are there witnesses they could call? Absolutely. They have said - Mick Mulvaney issued a statement saying "the President never said what I said he had said earlier." Well, if that's the case, then why don't they call Mick Mulvaney? He should be on their witness list.
If Secretary Pompeo has evidence that there was a policy basis to withhold the aid and it was discussed, well then why don't they call him? That's a relevant fact witness. They don't want to allow the Chief Justice to decide issues of materiality because they know what they're trying to do involves witnesses that don't shed light on the charges against the President.
They do satisfy the appetite of their client but they don't have probative value to the issues here. So yes, there are witnesses - now, the reason they're not on the President's witness list is because if they were truthful under oath, they would incriminate the President. Otherwise, they would be begging to have Mick Mulvaney come testify. Otherwise, they'd be begging to have the head of OMB, who helped administer the freeze on behalf of the President - "let's bring him in, he'll tell you it was completely innocent, it was all about burden sharing." So why don't they want the head of OMB in, why don't they want their own people in?
Because their own people will incriminate the President but there's no shortage of relative - relevant probative witnesses, they just don't want you to hear what they have to say.
J. ROBERTS: Thank you, Mr. Manager. SEKULOW: Besides the fact that Mr. Schumer said - and it's on Page 675 of the transcript - that "I can call - and we can call any witnesses we want," Mr. Schiff just said "we - we - we don't really get - we can call their witnesses" - and that's what he said, "you can call their witnesses" because under their theory, if we wanted to talk to the whistleblower, even in a secure setting, to find out if he in fact may have worked for the Vice President or may have worked on Ukraine or may have been in communication with his staff, that's irrelevant.
We can't talk to Joe Biden or Hunter Biden because that's irrelevant, except the conversation that is the subject matter of this inquiry, the phone call, transcript that you selectively utilized, has a reference to Hunter Biden.
The conversation with Burisma, they raised it for about a half a day, saying there was nothing there. Well let me find out through cross- examination. But I just think the irony of this, before we go to dinner, that we could call anyone we want except the witnesses we want, but we can call their witnesses that they want - remember we said the fruit of the poisonous tree? It's still the fruit of the poisonous tree. It doesn't get better with age, as I said.
But this idea that this is going to be a fair process - call the witnesses they want, don't call the witnesses you want because they're irrelevant. Maybe irrelevant to them, they're not irrelevant to the President and they're not irrelevant to our case. Thank you, Mr. Chief Justice.
J. ROBERTS: Counsel - Mr. Majority Leader, I understand we have 45 minutes?
MCCONNELL: Mr. Chief Justice, we do indeed.
J. ROBERTS: Thank you.
WOLF BLITZER, CNN ANCHOR: All right. So they have been going for several hours already today. I think they have about three hours left after dinner later tonight, the big fight, clearly, over whether or not there will be witnesses. And, Jake, the big vote on that will come tomorrow. They need four Republicans, right now, the Democrats look like they're in trouble.
JAKE TAPPER, CNN ANCHOR: They sure do. And one of the illest omens I've seen for the Democrats so far came when Senator Lamar Alexander theoretically, one of the swing votes who could possibly vote for more witnesses, submitted a question along with two Trump stalwarts, Senators Daines and Cruz.
And the question was, please compare the bipartisanship in the Nixon impeachment, the Clinton impeachment and the Trump impeachment, one of the very many loaded questions in which they're actually just trying to make a point.
So let's go to Jeffrey Toobin now, if we can, to get his reaction to what he has heard so far.
JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Well, I think it's almost been a return to the beginning of the week before the big New York Times bombshell about the Bolton book, where the Republicans are just trying to run out the clock and not make any mistakes. Because it looks like they think they're ahead, they certainly are ahead on the issue of whether the president is going to be convicted, and there seems to be a lot more confidence in their camp on the issue of witnesses. So they are answering the questions with sort of big picture issues, talking about unfairness of the House investigation, trying not to engage about the House, the facts, underlying facts of the case, hiding a little bit from Professor Dershowitz's view of executive power, and just trying not to make any mistakes so they can cruise into tomorrow and win.
BLITZER: The lead House manager, Gloria, Adam Schiff, says if they had witnesses, it would take a week, an extra week.
GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Right. He clearly put this plan out there with approval of Chuck Schumer. It was clear that they were concocting this together. We're only going to take a week. We'll depose them privately, deal with it quickly on the Senate floor, and you've got the chief justice right up there and he can rule if there are discrepancies.
I think that shows that they're getting very worried about this question about witnesses and that he just wanted to put something out there to say, okay, maybe there's room for compromise here, but then Sekulow got up and said, wait a minute, there isn't any room for compromise, because you're talking about your witnesses, not our witnesses, and so they're going to have to go back and forth on that.
One thing I noticed about today though is I think it just was so much more political about people's motives and what they're really doing this for. They want to overturn an election. And what struck me was when Pat Cipollone got up there, the president's counsel, and said, it's time we stop assuming that everybody has horrible motives. Just cut this out. And you have to ask yourself, who does Pat Cipollone work for? The president of the United States, who calls everyone names, who questions their motives. Remember Bob Mueller, he is against me because he wanted to be FBI director, Bolton is a disgruntled ex-employee, he calls everyone names, liars, and all this. And then you have Pat Cipollone out there saying, can't we all just please stop questioning motives?
TAPPER: So, John, you and I have been talking a couple weeks now about what if the Democrats have picked Justin Amash, the Republican turned independent in the House to be a House impeachment manager. And it just occurs to me Democrats are from Venus, Republicans are from mars, do the House impeachment managers understand exactly how to appeal to the Republicans they're trying to appeal to, maybe Justin Amash or someone else could have helped them more?
JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: And vice versa. I mean, one of the issues here is the polarization that began, or is in place, but then became exacerbated during the Clinton impeachment, that looks like a quaint time now. Now, we're way, way out here. Nancy Pelosi likes control, Nancy Pelosi wanted people she trusted. I think most Republicans in the Senate would have rolled their eyes at Justin Amash, but it's one of the things we will talk about after this and all of these decisions that were made, what could they have done differently. Might it be different if they had somebody who at least speaks the conservative Republican language?
He is more libertarian than a Republican, but he was one of them. He was one of them. He is friends with Mike Lee. He is friends with Rand Paul. He has some allies in the Senate who are not with the Democrats in this case. Does that mean he could have changed their minds? I'm not going anywhere near there. But might it have been different or might it have been more interesting in this idea that Jeffrey is right, the tone went back to the beginning of the week which is more partisan, which tells you it's more tribal. And if the votes are tribal in the end, it is much more likely that people stay in their camps.
To the point about the Alexander question, that was one. Lamar Alexander finally asked a question. We know he is a key leader. If he moved on questions witnesses, he would bring people with him. He wouldn't just get you to the finish line, he would bring a couple with him. So he pops up with a question.
There was one where it was Kyrsten Sinema of Arizona with Joe Manchin, Susan Collins and Lisa Murkowski. So you say, whoa, a bipartisan question, but it didn't get us anywhere. There were interesting moments where you take a breath, sit up more in your seat but didn't seem to move the move ball.
BLITZER: Nia, how did you see it?
NIA-MALIKA HENDERSON, CNN SENIOR POLITICAL REPORTER: No, I think that's right. I mean, the bipartisan question was interesting. It was all about Rudy Giuliani and whether or not they could get the president to essentially say that this kind of thing wouldn't happen with Rudy Giuliani seeming to be kind of a shadow secretary of state.
KING: Didn't get a really good explanation.
HENDERSON: They didn't get a really good explanation.
BORGER: Or who is paying them.
HENDERSON: Yes. I mean, Philbin, said, essentially, well, he is just s source of info, he is not really doing foreign policy over there.
I think there was another one, Murkowski and Schatz asked something that was also trying to get at the Dershowitz idea of whether or not there's a broad sense of what a president can do in order to get reelected.
So, yes, you do see that coming up. I think they're trying to distance themselves from what Dershowitz said. Dershowitz was all over Twitter saying, oh, I was really misinterpreted. So, that was interesting today.
But I think we're right where we thought we would be in many ways, which is it is not likely that Alexander is going to flip.
JAKE TAPPER, CNN HOST: So, Dana Bash, Democrats seem to adopt this Hail Mary pass idea where they're trying to get the Senate to agree to at least just take a week so we can get depositions, these new witnesses, just be a week, and then we'll resume, things will be over quickly. Tell us more about that.
DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: I was in the chamber when Adam Schiff first proposed that this afternoon and it was really interesting because I was watching Chuck Schumer, Democratic leader, when Schiff started to talk. And Schumer's aide was whispering something to him. Schumer shushed him, because he wanted to hear what Schiff was saying, it was obvious he knew what was coming.
And Schumer was watching Schiff with a big grin, made it pretty clear this was planned, that this was, in your words, a Hail Mary pass, hearing for days and days and days arguments against the notion of witnesses because it would take too long, so this proposal was OK, we'll do it just the way they did it in the Clinton days, we'll give one week limit to any discussion or any depositions or even hearing from witnesses. We don't expect that's really going to fly, but the fact that this was not just brought up by Schiff but then later Schumer added to that by asking a question about the one week.
This is -- it is also clear that this means the Democrats have a good sense of where this witness question is going when they vote on it tomorrow.
WOLF BLITZER, CNN HOST: All right. Dana, stand by.
I want to bring in one of President Trump's impeachment attorneys, Alan Dershowitz, right now. He's joining us from Miami.
Professor, thanks so much for joining us.
As you know, you caused quite a stir yesterday. Congressman Adam Schiff, the lead House manager, called your arguments that you made on the Senate floor yesterday a descent into constitutional madness.
Here's part of the case you made in your own words.
(BEGIN VIDEO CLIP)
ALAN DERSHOWITZ, TRUMP IMPEACHMENT ATTORNEY: 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. 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)
BLITZER: All right. You say, Professor, you have been misinterpreted. Briefly explain why you say that.
DERSHOWITZ: I haven't been misinterpreted. Deliberately, efforts have been made to put that quote on television, completely out of context.
Let me explain. First, unequivocally, I do not believe, I have never said that a president can do anything if he believes that his election is in the public interest to get reelected. That's simply false. I started my speech in the Senate by saying, I completely support the impeachment of Nixon who everything he did, he did because he wanted to get reelected. And, clearly, he thought his re-election was in the public interest.
What I was doing is responding to an argument by the managers which said basically that if a president has any motive, a slightest motive that is not in the public interest that serves his own electoral interests, that's a corrupt motive, and that can form the quid or the quo in the quid pro quo.
And then I cited Abraham Lincoln who sent the troops home from the battlefield to Indiana to help the Republicans win the election and help his political prospects. And I said, how do you avoid that conclusion if you accept the argument made by the managers?
And then I quoted two other positions.
One, what if -- what if it turned out that President Obama had broken his promise about bombing Syrian bases after the chemical warfare, that he did it because he was told it was hurt his standing and his voting among the left.
And then I quoted Biden. What if in the Biden case, it turns out that part of his interest, part of the reason that he had the prosecutor fired was to protect his family interest and his son?
So I rejected the argument that you can just turn innocent conduct into guilty conduct --
BLITZER: All right.
DERSHOWITZ: -- by finding a small motive which is what the congressmen both said.
But I never said, never suggested and it was a total distortion, not misunderstanding, distortion of my point that I want -- I think a president can do anything if he thinks his election is national interest.
BLITZER: All right, Professor --
DERSHOWITZ: I never said it. It's nonsense. And your network should never have said I said it repeatedly.
BLITZER: We were only playing clips from what you actually said on the floor. (CROSSTALK)
DERSHOWITZ: Yes, you played a clip that you selected. Not the context.
BLITZER: Those were your words.
But I want to bring in Jeffrey Toobin.
DERSHOWITZ: -- words of mine that you left out.
BLITZER: I want to bring in Jeffrey Toobin, your former law student at Harvard Law School.
BLITZER: Go ahead, Jeffrey.
JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Isn't the controversy here about the issue of intent? You -- I mean, clearly, quid pro quo is inappropriate in foreign policy under many circumstances.
TOOBIN: But the issue it seems the House managers are making is that if there is a corrupt intent, then it can be impeachable. And it is frequently --
DERSHOWITZ: That's right.
TOOBN: -- the issue in the law that we look and have juries determine whether peoples' -- what their intent is. You know, is it a manslaughter or is it murder?
DERSHOWITZ: But there's enormous difference in criminal law and impeachment. In the criminal law, you're right, there are cases that say, if you have corrupt motive, you take a bribe, the example I always give. The congressman gave the example.
DERSHOWITZ: You take a bribe. You take a bribe to bribe electors. You take a bribe to make people vote. It doesn't matter whether they would have voted the other way. That doesn't matter.
This is not what we're talking about. We're talking about doing something entirely lawful and turning lawful conduct into impeachable conduct as a result, not of intent, but of motive, of the reason why he may have done it.
And I think all of you have a responsibility to answer my Lincoln analysis. And nobody did. Nobody looked at the context. Nobody looked at what I was answering. All you did is took that one little snippet, put it out of context,
and had everybody attack me for something I didn't say, don't believe, and didn't even imply.
TOOBIN: But what's wrong with looking at whether a president has corrupt intent in his actions? I mean, that seems to be the heart of the issue here? I mean, that -- why is that something that's inappropriate for Congress --
DERSHOWITZ: The question is how are you going to find -- it's not. It's not. The question is how do you define corrupt?
And my argument was, there's a big difference between taking a bribe -- I gave an example right on the floor of the Senate. If the president said, I'm not giving you your money, I'm withholding the money unless you let me build a hotel and have my name on it or give me a million dollar kickback -- that's corrupt. That's clear.
The question is, is it corrupt? For the president to have in the back of his mind, the front of his mind or the middle of his mind, how is this going to affect his politics? How is this going to affect his electability?
And I turn to every one of the senators and said, every one of you thinks your election is in the public interest and every one of you is taking decisions that, in part, are motivated, motivated, by a desire to increase your re-electability. That's my argument.
Please present it fairly, then rebut it, but don't make up an argument that I didn't say.
TOOBIN: But you're changing the facts. The facts as alleged here is not that this was something in the back of the president's mind. The facts, as the managers allege, is that the -- is that he went to the president of Ukraine and said, we are holding this $390 million unless you announce an investigation of Joe Biden. And there is no justification for that other than his political advantage. That's corrupt.
DERSHOWITZ: I didn't talk about the facts, I talked about -- I deliberately did not talk about the facts. I talked about the Constitution, and I was making an abstract, hypothetical, theoretical, academic argument in response to their argument that if a president even has a minor motive.
They weren't talking about the facts. They were talking about a hypothetical. If the president had as one of his small motives, the desire to get himself elected, that would be a corrupt intent. I was responding to that.
TOOBIN: I think --
TOOBIN: I think they were talking about the facts of the case.
DERSHOWITZ: The point I made was you can't allow that principle to operate, that that principle is so dangerous, it would allow impeachment of any president who looked to his own re-electability as even a small factor.
Go show the clip with Congressman Nadler saying and both -- and Schiff saying, if even a small element, even if his domination intention was in the public interest, if even the smallest element was not in the public interest was his re-electability, that's corrupt. Please play that clip. It happened today.
BLITZER: Professor Dershowitz, first of all, have you heard from the president since those remarks yesterday on the Senate floor?
DERSHOWITZ: No, but I can tell you the president and his legal team urged me to say -- I had plans to come back today. That was my family obligation this morning. It was hard to get flights to Miami Super Bowl.
I did not change my plans. The senators -- I'm sorry, the president's team urged me to stay. They wanted me to talk about these issues and constitutional issues. I couldn't do it.
So, it's not that the president somehow or the president's team were upset about the argument. They heard my argument.
I would say that 15 senators came over to me yesterday after -- maybe that's an exaggeration. But certainly a handful and maybe more came over to me afterward and thanked me for making that argument because that argument was in their interest as well. It was designed to ensure that no one can ever get in trouble for having as part of the motive their re-electability.
That was my point. And to distort my point is to misinform your viewers.
TOOBIN: Why have you attacked the motives of the multitude of law professors who disagree with you on that point?
BLITZER: On that point, we have a clip. Professor Dershowitz, I want --
DERSHOWITZ: Because I know them very well, and I know for sure that if the shoe were on the other point --
BLITZER: Listen to what you say on this specific issue going after your fellow legal scholars in a very tough way. Listen to what you said.
DERSHOWITZ: And I'll do it again. Right.
(BEGIN VIDEO CLIP)
DERSHOWITZ: If, in fact, President Obama or President Hillary Clinton had been impeached, the weight of current scholarship would be clearly in the favor of my position because these scholars do not pass the shoe on the other foot test. These scholars are influenced by their own bias, by their own politics, and their views should be taken with that in mind. They simply do not give objective assessments of the constitutional history.
(END VIDEO CLIP)
BLITZER: Why smear your fellow legal scholars?
DERSHOWITZ: I've been in academia -- right, I've been in academia for 55 years. I know my colleagues. It doesn't apply to all of them. It doesn't apply to Marianne Glenn (ph). It doesn't apply to Jack Goldsmith (ph). I can give you names of people it doesn't apply to.
But, boy, does it apply to Larry Tribe who said in 1998, a sitting president couldn't be prosecuted and then suddenly he got woke when the president was Trump.
It applies to so many of those people. I went through the list of 500 and I can identify dozens and dozens and dozens of them who never would have signed the letter in support of the impeachment of Hillary Clinton or Barack Obama if they had been impeached on the same grounds of abuse of power or obstruction of Congress.
I stand by my criticism of my fellow academics, yes.
TOOBIN: Isn't it ironic, Alan, isn't it ironic that this week you were at the White House at a political celebration slapping the secretary of state on the back after he trashed an NPR reporter, this week that you're accusing other people of having political bias when you're at the White House for a political celebration?
DERSHOWITZ: Absolutely. I have no political bias. I did not vote for the president. I am strongly in support of the peace plan.
I was invited by both Netanyahu and the White House to come to the White House because I helped design the peace plan. I played a small role.
I've been working on peace plans as Wolf knows since 1967 when I advised Arthur Goldberg at the United Nations. So, of course, I was going to be there.
And my pat on the back, he's a former student of mine, he's in trouble. I said, you know, you're going to get over this. I do not support what he said. You know that.
TOOBIN: That's why it surprised me.
(CROSSTALK) DERSHOWITZ: I do not support (INAUDIBLE) journalist. I do not support putting anybody -- taking anybody off an airplane.
My politics are to the left of your politics, Jeffrey. My politics --
TOOBIN: Probably true.
DERSHOWITZ: -- are probably to the left of Wolf's politics.
I am a liberal Democrat who cares more about the Constitution than I do about partisan politics. I care about Israel. I care about the peace plan.
That's why I went to the White House. Not to slap anybody on the back but to support the peace plan which I hope the Palestinians will come to table to negotiate in.
TAPPER: Alan, it's Jake Tapper, if I could just jump in for one second. I just wanted to get your response to something --
DERSHOWITZ: Sure, please.
TAPPER: -- you repeatedly cited Harvard Law professor Nikolas Bowie as supporting -- as supporting a part of your argument.
TAPPER: I want you to respond to what he said to Anderson Cooper earlier this morning. Let's just play the sound and then we'll get your reaction.
DERSHOWITZ: Let me be very clear --
TAPPER: But just hold one second. Let's just play --
DERSHOWITZ: You're going to play that? OK?
TAPPER: Let's play the sound and then we'll get your reaction.
DERSHOWITZ: Sure, sure.
(BEGIN VIDEO CLIP)
NIKOLAS BOWIE, ASSISTANT PROFESSOR, HARVARD LAW SCHOOL: -- that if a president were to order the military to start rounding up black people because he's afraid they're going to vote for a Democrat in the next election, and so long as the president is motivated by the national interest, so long as the president is motivated to get reelected, then that's fine, that the president isn't corrupt. That can't be right. That is such an irresponsible and ludicrous argument.
(END VIDEO CLIP)
TAPPER: So, what's your reaction?
DERSHOWITZ: It's absolutely disgraceful what -- it's disgraceful what Professor Bowie said. What he didn't -- what I cited him for was that he said that you need a crime to be impeached. He said that. He should have said it on your show.
He said that abuse of power is very much the same or abuse of office or a variety of things that sound like abuse of power are very much the same as maladministration. I was citing him because he is in favor of impeachment. That's why his remarks are so much more powerful. They're called admissions against interest.
And for somebody to say oh, I cited Bowie and he's taking the opposite side, I said that on the floor of the Senate. That makes his admissions even more compelling. He wrote a very strong article saying you need crime, he repeated it in "The New York Times." you wouldn't know that watching your shows and other shows that he admitted that and made an admission also about abuse of powerful which was helpful to my argument.
So, you always cite people who disagree with you, when they say something that agrees you, because it gives it more credibility.
Please go back and read his articles, but he is a coward because he should have stuck by his guns. But he's an assistant professor. There's probably a lot of pressure on him to make sure that he's never used in any way to help a position that the dominant members of the faculty --
BLITZER: All right.
DERSHOWITZ: -- don't agree with. Shame on him.
BLITZER: Professor Dershowitz, he's a distinguished scholar. Let's leave it at that. Let's continue this conversation down the road --
DERSHOWITZ: I understand that, but he didn't behave as a distinguished scholar.
BLITZER: It's inappropriate to go after a distinguished Harvard law professor in that kind of --
DERSHOWITZ: He went after me. He called me a joke. Why can't I respond?
BLITZER: You -- and you did respond.
DERSHOWITZ: You didn't stop him when he called me a joke. Please, same standards.
BLITZER: I -- I didn't interview him. I'm just interviewing you. And we've got to leave it on that note.
DERSHOWITZ: Whenever it was, didn't stop him. So please let's have the same standard, not a double standard.
BLITZER: Alan Dershowitz, we will continue this conversation down the road. Thanks so much for joining us.
Erin Burnett is going to pick up our special coverage.