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ERIN BURNETT OUTFRONT
Closing Arguments Expected Monday; Final Vote Wednesday; Sen. Chris Coons (D-DE) Discuss About What Will Happen After The Motion For Witnesses And Documents Has Been Defeated; Dems To Push Votes On Four Amendments Tonight; Dems Offer First Of Four Amendments On Subpoenaing Officials; Senate Voting On Schumer's First Amendment To Subpoena Mulvaney, Bolton, Other Officials; Senate Voting On Schumer Amendment To Subpoena Bolton. Aired 7-8p ET
Aired January 31, 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: Erin Burnett is coming up right now at the top of the hour. Thank you so much for joining us. We'll see you next time.
ERIN BURNETT, CNN HOST: Good evening. I'm Erin Burnett and the breaking news, history is unfolding as we speak. Right now the impeachment trial of President Trump is about to resume any second. They've been in recess for nearly 80 minutes, trying to do some sort of a backroom deal to figure out how to move forward.
A motion to allow witnesses was defeated and now the senators are going to be taking on amendments. They have been debating what comes next. That final vote we now believe will be Wednesday and I want to go straight to Democratic Senator Chris Coons who's about to head back into that room.
And Senator, what can you tell us? Let's start with right now you're going back into that room, what happens the rest of tonight?
SEN. CHRIS COONS (D-DE): Well, Erin, that's really in the hands of the Republican majority right now. I'm expecting that we're going to be called back in for a vote any moment. The majority leader will lay out whatever he's been able to work out with his caucus, which is the majority of the Senate.
And then I expect a series of amendment votes to be offered by the Democrats. Frankly, trying through a number of votes to force reconsideration of this central vital question, will there be any witnesses, will there be any documents.
I'll remind you, Erin, this will be the very first impeachment trial in the entire history of the Senate to have no witnesses. The last impeachment trial when it happened right as I got here 10 years ago of a judge from Louisiana, had 26 witnesses, 17 of whom had not appeared before their appearance in front of the Senate trial committee.
I think the House managers made an excellent case today about why we should be hearing from John Bolton and other witnesses and it was frankly very painful that this didn't happen.
BURNETT: But that all got voted down. I mean, it seems at this point though, of course, I mean, look, I understand you got to make your point on these amendments, but you're talking about taking a last stand, the next step --
COONS: That's right.
BURNETT: -- which would be closing arguments on Monday and a vote on Wednesday is what we understand. Is there any more you can tell us about the deal from here to make it clear that would mean that the vote comes after the State of the Union and after the Iowa caucuses?
COONS: Well that, as I said, Erin, that's what I have heard through press reports is what the majority leader is trying to persuade his caucus to support. I don't think that will get much support in our caucus. There's a lot of folks who would like to see us keep fighting and keep pushing for more votes tonight and tomorrow, and to be here for our arguments on the floor.
But given that he was able to secure 51 votes against any more witnesses or any more documents, it seems likely that the majority leader has the votes to drive through the process that he's fighting for.
BURNETT: So there are some Republicans who wanted an acquittal tonight. They wanted it very quickly, right?
BURNETT: There were some though who did want a chance to talk, to stand up and say something and that's in part why the majority leader is going to allow these closing statements and senators to speak Monday, Tuesday and then that vote on Wednesday.
Have you talked to any of those Republicans who actually wanted a chance to stand up and speak? And if so, why? What do they want to say? Why is this important to them?
COONS: I've talked to a couple of my colleagues. Frankly, it's hard. I'm normally someone who works across the aisle fairly well but this has been a really hard two weeks and I am very disappointed in some of my colleagues, very frustrated at this process.
As we saw just today, The New York Times reported more breaking news from the upcoming book by the former National Security Advisor John Bolton suggesting that President Trump was in the room with John Bolton, with Rudy Giuliani, with the White House Counsel.
COONS: Months earlier, weeks earlier, excuse me, than we previously knew. Why they don't want more evidence? I don't understand. But a number of them are making the argument that this is not an impeachable offense and I think, frankly, the consequences of their deciding that this is not an impeachable offense will be long lasting and great for our country.
BURNETT: Senator, I appreciate your time very much. Of course, he's referring to senators Lamar Alexander, Marco Rubio and others who said assume everything that happened is true, they don't believe it's impeachable.
I want to go straight to Phil Mattingly OUTFRONT live on Capitol Hill. So Phil, what are you learning about this schedule, which Senator Coons seem to confirm, but what are the details here about what happens tonight and next?
PHIL MATTINGLY, CNN CONGRESSIONAL CORRESPONDENT: Yes, Erin, let me lay out exactly what's going to happen the rest of the way on the impeachment trial. Something we didn't have an answer to until just a couple of minutes ago I just got my hands on the final resolution that Majority Leader McConnell will introduce on the floor in just a few minutes and that resolution lays out this.
Tonight there will be votes on three different or, sorry, four Democratic amendments. We haven't seen the text of those amendments yet. But those amendments are expected to fail with Republicans holding the majority in the chamber. Still keep an eye on what Democrats are putting up on that.
After those votes are done, the chamber will vote on this resolution to basically dictate the next five days. After they vote on the resolution that dictates the next five days. They will go under recess. They will adjourn for the weekend. They will return on Monday at 11 am.
At that point, they will hold closing arguments. Each side; the managers and the White House Counsel's team will have two hours apiece to make their closing arguments.
By Wednesday at 4 pm, they will have the final vote on whether to acquit or remove the president from office. Now, I should note, Erin, between Monday and Wednesday, Senators will have the opportunity to go to the floor and speak about their views related to the trial and the decisions they're going to make related to that vote, but that time will be out of the trial.
So essentially, as we've seen, Senators cannot speak while the trial is in session. Senators can't really move while the trial is in session either. So the only time the Senate will actually be in the impeachment trial next week will be Monday during the closing arguments and then when they come back in at 4 pm on Wednesday to have the final vote.
In between, senators will have the opportunity to come to the floor, make public statements about their views and essentially lay out why they've decided to do one thing or the other. Two things to point out here, the behind the scenes that was going on where Republicans basically trying to split inside the Republican conference as to whether to push through all of this tonight or whether to give some of their senators time to be able to make statements publicly.
Because of that, McConnell did not have the votes essentially to move this forward tonight as he initially planned to do. Because of that as well, Democrats had a bit of leverage here and what they wanted was to ensure that the President was not acquitted before Tuesday night's State of the Union address.
Now, Republicans countered saying you've got four people that are running for president right now and would probably like to be in Iowa on Monday. Democrats didn't budge on this issue and I would note, the chamber is only in session in impeachment trial from 11 to 3 pm on Monday. So Senators could conceivably get out and go back to Iowa at some point that time.
BURNETT: For the evening to be at the caucuses, yes.
MATTINGLY: But, Erin, that's for the evening, absolutely. The caucuses where they could actually go and speak, where they could actually go and try and help bring people to their side during the caucus process. So that's the whole schedule. It's been a little confusing, a little quiet and fluid, but that's where we stand.
BURNETT: So, Phil, can I just ask you one question to make sure I understand it.
BURNETT: So at the resolution, I'm just reading it now, the one that you obtained.
BURNETT: At the conclusion of the final arguments by the House and the President, which is, as you said about 3 pm on Monday, give or take, problem a little bit later, that court of impeachment shall stand adjourned until 4 pm on Wednesday at which time they will vote.
So explain between those two times, are they just going to be able to get up and give speeches as they wish about how they feel? How does that part work?
MATTINGLY: So the way it's been explained to me and I think it's very important that you point out that the court of impeachment is adjourned. What that means is the Senate can be in session and essentially being in morning business or in regular business and that means senators can actually come to the floor and speak.
And the expectation is each senator will be provided about 15 minutes to make a final statement. That's not in the resolution, but that's what I've been told up to this point. And the reason why they have to adjourn between the end of the closing arguments on Monday and that final vote coming back into session at 4 pm on Wednesday is so senators can actually speak on the floor.
The only time we've heard from senators throughout this process is them announcing that they're submitting a question to the desk during the 16 hours of the question and answer period. They are not allowed to speak at any other time. This will allow them to do just that.
I would make one other point. This is the difference, because in 1999, Erin, senators did have deliberations where they did give statements, but it was all behind closed doors, because that was the only way based on the senate rules, they should be allowed to talk inside an impeachment trial. That's why they're adjourning to give their members space to be able to speak publicly about this. So we'll be able to see it all play out between Monday and Wednesday.
BURNETT: And those are going to be the fascinating moments that I think we all so very much want to hear. You get a statement from Lamar Alexander or from Marco Rubio, but we want to hear them. We want to hear what they really have to say. All right. Phil, stay with us.
As I said, we're anticipating this move to vote on this resolution that Phil just laid out any moment to happen. I want to go to our panel.
David Axelrod, let me start with you. What do you make about the battle that went on here to even get to this agreement? Senator Schumer didn't want the President acquitted before the State of the Union and the Republicans were saying, oh, but then your senators may not be able to be in Iowa on the caucuses. I mean, this was an all-out brawl.
DAVID AXELROD, FORMER SENIOR ADVISER TO PRESIDENT OBAMA: Yes. It was an all-out brawl and obviously made possible, as Phil said, by divisions within the Republican caucus from some members who wanted to be heard on this. And once that happened, it opened up this opportunity.
But to me, this is just a footnote in the larger drama here and what was interesting to me today was just how compelling the arguments were from the managers, the House managers for the need for witnesses. And I think the reason that Lamar Alexander and Murkowski, wanted their statements out before was because they anticipated that the case for witnesses is obvious and the case against it is also obvious, which is they don't want to hear it.
They know what happened. And either they say it was justified or they say that it was wrong, but not impeachable, but they don't want any more information because it's only going to make things worse for the President and they want to end this.
And McConnell wanted to do it tonight. Schumer has prolonged it beyond the State of the Union. But as we knew from the beginning of this, the outcome was preordained.
BURNETT: And prolonged it in part, Laura, because there are Republicans who want to have a chance to detail their feelings on the floor. But yet you had Lamar Alexander, Marco Rubio, Senator Toomey, senator after senator come out and say, OK, assume everything that's said is true where Lamar Alexander, they made the case.
LAURA COATES, CNN LEGAL ANALYST: Right.
BURNETT: He did it, but it's not impeachable.
COATES: The idea of what - it's not whether he did it. It's what we're going to do about it.
COATES: I call this kind of the Dershowitz effect, honestly. Because when he made the statements about expanding executive authority, when he made people's heads roll back and eyes rolled back thinking themselves, are you actually saying that Congress really doesn't have as much power, that the President can do whatever he wants.
That was, I think, a defining moment for the senators to say, I can't just say acquittal or conviction. I can't just say yay or nay for witnesses. I'm going to have to explain to my constituents and the American people, generally, but I'm not maybe basing my decision off of that, which is why I think Lamar Alexander took some great pains to talk about other issues.
But still it comes back to that Dershowitz effects and what the power of arguments that are so outlandish and irresponsible, it causes a domino effect for others now explain why they're not being equally irresponsible.
BURNETT: Well, you can't sell someone something they don't want to buy.
COATES: They all want magic beans.
BURNETT: And they were looking for something to buy.
BURNETT: I mean, that's the ultimate truth, right, Tim?
TIM NAFTALI, FORMER DIRECTOR, NIXON PRESIDENTIAL LIBRARY: Yes, they're looking for something to buy. But what they have done is they have opened a tremendous can of worms. Because in the 1970s, Republicans and Democrats alike realize that the presidency had become so complex, there were ways for the President to do harm to the constitutional system without violating the law.
And that's why in the '70s, they came to understand really the concept of abuse of power. And it was a bipartisan understanding, both in the House and it would have been in the Senate because we have a sense of what the senate might have done.
That understanding of the power of abuse of power and the importance of making that also a threshold for impeachment has been thrown away.
BURNETT: Right, (INAUDIBLE) --
NAFTALI: And which means that if they don't, it's the journey to acquittal that matters. How are they going to explain the difference between an impeachable abuse of power and something that was a bad choice.
BURNETT: Right. Or as Marco Rubio said, an abuse of power and he doesn't buy - it doesn't have to be a crime, but he thinks the voters should decide. All right. We're going to come back in just a moment as we are waiting for them to come in with this crucial vote on this resolution. We'll be right back.
BURNETT: And the senators are back. Mitch McConnell gaveling in for the vote on these amendments in this resolution. Let's listen in.
UNIDENTIFIED MALE: Senate Resolution 488 to provide for related procedures concerning the articles of impeachment against Donald John Trump, President of the United States. Resolve that the record in this case shall be closed and no motion with respect to reopening the record shall be in order for the duration of these proceedings --
BURNETT: All right. And this is the vote on the first amendment. We anticipate there will be four. This is the first amendment put forward by the minority leader Chuck Schumer and this is putting all of his witnesses and documents in one amendment, Joe.
Mick Mulvaney, Mr. Duffey, Bolton, Head of the OMB, all of the documents that they want and that's what they're voting on right now. We anticipate this will again be turned down by 51 votes as they are doing a roll call vote.
And you heard the Chief Justice of the Supreme Court at the very beginning was forced, I think, by the Minority Leader to make a stand of where he would go if it were a tie vote even though they knew it probably would be 51 to say it's inappropriate, he would not break that tie.
JOE LOCKHART, CNN POLITICAL COMMENTATOR: Yes. It was very clear that Senator Schumer raised that issue because the Chief Justice was reading his answer. It was negotiated.
LOCKHART: I'm sure with the majority leader.
BURNETT: Yes. He clearly had prepared.
LOCKHART: Yes. Yes, he had prepared for it and this is - they're going through some procedural motions now to implement the deal they've made. The deal they made, Senator Schumer had some leverage, because there was a division within the Republican caucus to extend this thing out through the weekend, allow people to make public statements on Monday, take a vote on Wednesday.
The President doesn't get what he wants, standing up for the State of the Union saying I've been acquitted. And that's because I honestly think that the reluctance among the Republicans in the caucus to have this go quickly is they've got a much more difficult explanation to make than, say, the Democrats in 1999 did.
In 1999, Democrats got up and in the vote said, the President's acknowledged what he's done. He's apologized and this doesn't rise to the level of impeachment.
In 2020, the President not only hasn't apologized, he's told George Stephanopoulos he'd do it again and that's a very tough thing and that's why they all want 15 minutes to explain, here is what my position is. That's what's extended this.
I'm sure Republicans will scream and yell about it. Schumer's done this, but this was because Republicans felt like they needed time to explain to their constituents why they voted.
BURNETT: And Scott Jennings is with us. Scott, obviously you know Mitch McConnell better than anyone. But obviously, as we said, this was a very tough deal. Mitch McConnell wanted this vote to happen tonight that would acquit the President and he didn't have the full leverage to do so because of division in his own caucus. So clearly enough senators, Republican senators wanted to be able to explain their vote and that's why this is going to go well into next week.
SCOTT JENNINGS, FORMER SENIOR ADVISER TO MITCH MCCONNELL: Yes. I'm not surprised, honestly. I've been predicting for a long time that several senators are going to find some problem with what the President did here. It'll be minor problems, it could be major problems. We've seen some statements expressing some pretty real concerns.
But on that spectrum, of course, they've all fallen short of the idea that the President should be thrown out of office. It's the Democrats who delivered the Senate this binary choice, acquit or throw the president out. And I always found it a bridge too far that you were going to find Republicans who wanted to toss a Republican president out of office, as we're about to start voting in the next election.
I think the folks that want to be heard ought to be heard. So I don't really have a big problem with this. I know they wanted to do it tonight. But if you want to make a speech on this and talk to the American people about your vote, I think that's fine.
Look, it's the Democrats here that failed to convince either Republicans in the House or ultimately Republicans in the Senate that their case rose to the level of needing to throw the President out. And the political specter faced by the Democrats now is that there are apparently some Democrats considering acquitting this president.
Meaning, he would have had a bipartisan opposition to the articles in the House and possibly a bipartisan acquittal in the Senate. That would be huge icing on the cake for the President if it turns out that way.
BURNETT: Well, of course, I mean, I've always, as a layperson, had an issue with calling things bipartisan when there's like one person from the other side. I understand you're right, technically, but I want to make sure people understand. It's not like there's some mass of Democrats.
It would be significant, though, and you did have two Republicans today vote with the Democrats, which is why they're in this position tonight, why they're not able to finish it.
I mean, David Axelrod, what do you make of that situation? You had two and they couldn't get more than two, but you have Mitt Romney, you have Susan Collins.
AXELROD: Yes. And that was predicted for some time. I'll get to that in a second, Erin, but let me respond to what Scott said. The fact is that there's been a lot of movement in the Republican position, it's always been the case that they weren't going to accept impeachment and certainly removal from office.
But the fact of the matter is, facts have continued to evolve here and become known during this process. And now, rather than saying, no one's ever proven that, no one's ever linked the aid to Ukraine to the action that the President took relative to the Bidens and the kinds of arguments that we heard during the impeachment hearing.
The arguments you're hearing from the senators are mostly either, as I said earlier, either he did it and it's fine, because corruption is corruption. And just because it was the Bidens, it doesn't mean it wasn't OK for him to do it.
But you're hearing a number of senators, because I think they know that's an untenable argument to say that, no, he did something wrong, but we feel that we should not throw the President of the United States out of office and off the ballot, that the American people should make that decision. And that's what they want to stand up and say.
The problem for the President is he don't want to hear that. So he can claim that it was a bipartisan vote, but he can't claim that it was a vindication of his position. He can't claim that he did nothing wrong. He will, but they'll be these Republican voices that say he did not and I think that's problematical for him.
BURNETT: And Alan Frumin is with me as well, a D.C. parliamentarian that's been in this room. This is a rare moment when we're actually seeing the full Senate. Alan, I want to ask you a question. I may have to interrupt you as this vote finishes and we move to the next amendment.
But this is a special moment, seeing them all here together, doing this vote, going through this history making moment.
ALAN FRUMIN, CNN CONTRIBUTOR: Yes. An impeachment trial is a history making moment. You have one branch of the government making charges against the head of the executive branch and you have a trial presided over by the head of the judiciary. It is a stunningly significant event on the floor of the Senate. It's the third time it's happened in our history.
I commend Chief Justice Roberts for clarifying that point of confusion.
BURNETT: That he would not break a tie as an unelected official.
FRUMIN: There's been much speculation that he would vote. The weight of Senate opinion over the years has been that Chief Justice Chase colored outside the lines.
BURNETT: OK. And, you know what, I'm just going to interrupt now. They've just finished the roll call. Let's get ready here because we believe that it'll now be the introduction of the second of four anticipated amendments.
This, of course, just to make sure for anyone just joining these are the amendments being proposed to the Majority Leader Mitch McConnell's resolution, which sets the stage for the trial now. There was a 51-49 vote to not have witnesses late today. Mitch McConnell wanted to move to immediate acquittal, did not have the votes even from his own caucus to do so. So he's put forth a resolution which would put this into next week. Let's listen to the votes for the first amendment.
JOHN ROBERTS, CHIEF JUSTICE OF THE UNITED STATES: Does any member in the chamber wish to change his or her vote? If not, the yays are 53, the nays are 47, the motion is agreed to. The Democratic leader is recognized.
BURNETT: All right. And they are now taking the roll call vote for the second of four anticipated amendments. This one is specifically about John Bolton's testimony.
I want to talk about John Bolton. Laura, The New York Times today new reporting, John Bolton's manuscript in his book, this is about a meeting in May, just to make clear, May comes before June, and June was when the call happened.
Trump has a meeting and at that meeting is John Bolton, Mick Mulvaney, Rudy Giuliani, Pat Cipollone and the President directly tells Bolton to pressure Ukrainian officials to get information on Democratic political rivals, including Joe Biden.
COATES: So I think he just defined hypocrisy and you defined a reason why I think they want to accelerate the trial to avoid having fact based witnesses who could say - actually, remember that time you said that people like Adam Schiff were too interested in this and couldn't be a part of this? Well, actually Cipollone as Office of White House Counsel, you two had some involvement in some way, you knew.
And by the way, the call was in July. They're talking about two months even before they had to plan this entire thing. By I'll just saying one thing, does anyone else find it very strange that the Senate could not wait seven days to allow for witnesses like a Bolton, perhaps, maybe like other people in the room.
They're willing to wait six days to give themselves time to make speeches about why they will acquit. By the calculation, they'd be able to just go ahead and all of this done by next week. And so, again, it's about the idea of the nonsense involved here. And Pat Cipollone, I mean, remember he is the Office of the White House Counsel.
He's the White House Counsel, which means that his job is to really protect the longevity and the actual office, not the office holder and you see he's intimately involved and a fact witness now about the actual core of the case. That's shocking. We shouldn't keep hearing about this sort of thing through the by-lines of a newspaper. It should be from the witness themselves.
BURNETT: So, Ryan Goodman is with us as well. Ryan, let me ask you about this. What does that mean if John Bolton says this, OK, so you have in the room the President of the United States directing John Bolton to do what we know the President did and you either think is impeachable or you don't, but you have a firsthand witness saying it. And he says that also in that room was Rudy Giuliani, Mick Mulvaney and Pat Cipollone.
And Pat Cipollone has been on the Senate floor defending the President for days. What is the significance of that, if he is doing that knowing that what he's doing is not true?
RYAN GOODMAN, CO-EDITOR-IN-CHIEF, JUST SECURITY: So it's quite incredible. There's actually a very specific ethical rule for all lawyers. It's called the advocate witness rule. You can't be both an advocate representing the client and a direct witness to the allegations and he's violated this ethical code. It's a clear breach of it.
And what's interesting is it didn't get much attention, but the House managers earlier this month did send him a letter that directly said, we have some information that you were a witness to a lot of these events and you're violating the rule.
And Stephen Gillers is one of the most preeminent legal ethics experts in the country and has written about this recently. And he's interview today in a number of outlets that it seems as though Cipollone ran roughshod right over that rule.
And one of the implications that was in the initial letter from the House managers is to say to Cipollone, you need to now tell us what facts you know about. But even that's kind of retrospective in a certain sense, but it's clearly a breach, and that he has to speak up to this at some point, even after the impeachment trial is over.
BURNETT: I mean, it is a stunning -- it's a stunning report, right, if this is what the manuscript says, to think that we may never know what happened.
And, David Axelrod, to that point, will we never know? I mean, John Bolton, again, so he's not going to appear here as a witness. The book is going to come out. We are going to hear the full side of the story. And there are obviously people that have been in that Senate room who are going to be implicated by John Bolton.
DAVID AXELROD, CNN SENIOR POLITICAL COMMENTATOR: Yes. Well, you answered your own question, Erin. Yes, we're going to know, because we know on March 17th, he's going to publish this book, which by the way thanks to the machinations in the Senate will probably be the number one best seller the day it appears, already may be in advance.
But, you know, in a sense, everybody knows in that room, I believe everybody in that -- knows in that room what happened. I don't think what Bolton is saying comes as a shock to people. It's more embroidery on the story. It fills in some of the pieces.
But it confirms what the House case has already made abundantly clear, which is what Lamar Alexander said. And knowing, you know, if you reverse-engineer and say, I cannot vote to remove the president, which is the decision Republicans have made, why would you want John Bolton sitting there and telling this story in the way that apparently he would, and making your final vote more uncomfortable than it was?
I think they'd rather be retroactively un retroactively uncomfortable than have to sit there in a trial and hear him testify before a national audience on this. So, you know, I think they made a political judgment to cut this off now before it gets worse.
BURNETT: Joe, they're almost done voting, but I do want to point out the first documents and Mulvaney was completely party-line. This one was not. Mitt Romney and Susan Collins, she's voted with the Democrats, in favor of John Bolton, making it clear that the point they made today when they go to the Democrats and witnesses was about John Bolton, not anybody else.
JOE LOCKHART, CNN POLITICAL COMMENTATOR: Yes, and it's a little bit surprising that on these sorts of procedural amendments that you'd break with your party. So, that's significant. And it, you know, is about John Bolton in particular. That's who they want to hear from.
I agree with what David was saying. And, you know, this is over as far as the result. But what really is going to happen now is the exoneration issue. The president --
BURNETT: I'm sorry, they're tallying the vote. You can listen to the chief justice. Listen in.
ROBERTS: If no, the yays are 51, the nays are 49. The motion is agreed to.
VAN HOLLEN: Mr. Chief Justice?
ROBERTS: The Senator from Maryland?
VAN HOLLEN: Mr. Chief Justice, I send an amendment to the desk to have the Chief Justice rule on motions to subpoena witnesses and documents and to rule on any assertion of privilege, and I ask that it be read.
ROBERTS: The Clerk will report. CLERK: Thank you. The Senator from Maryland, Mr. Van Hollen, proposes an Amendment Number 1298. At the appropriate place of the matter following the resolving clause insert the following, "Notwithstanding any other provision of this resolution, the presiding officer shall issue a subpoena for any witness or any document that a Senator or a Party moves to subpoena if the presiding officer determines that the witness or document is likely to have probative evidence relevant to either article of impeachment before the Senate and consistent with the authority of the presiding officer to rule on all questions of evidence shall rule on any assertion of privilege."
ROBERTS: The Majority Leader is recognized.
MCCONNELL: Mr. Chief Justice, I move to table the amendment and ask for the yays and nays.
ROBERTS: Is there a sufficient second?
(UNKNOWN): There is.
ROBERTS: There is. The Clerk will call the roll.
CLERK: Mr. Alexander?
BURR: Votes aye.
Mr. Carper? CARPER: No.
Ms. Cortez Masto?
CORTEZ MASTO: No.
Mrs. Gillibrand? GILLIBRAND: No.
Mr. Lee? LEE: Aye.
Mr. Romney? ROMNEY: Aye.
Mr. Scott of Florida?
R. SCOTT: Aye.
Mr. Scott of South Carolina?
T. SCOTT: Aye.
Mr. Toomey? TOOMEY: Aye.
Mr. Van Hollen?
VAN HOLLEN: No.
ROBERTS: Is there any senator in the chamber wishing to vote or change his or her vote? If no, the yays are 53, the nays are 47. The motion is agreed to.
Right now? The question occurs on the adoption of Senate Resolution 488. Is there a sufficient second?
(UNKNOWN): There is.
ROBERTS: There is? The Clerk will call the roll.
CLERK: Mr. Alexander?
CLERK: Mr. Alexander, aye.
BURNETT: All right. That is the third amendment. Again we anticipate there's four. We shall see. That's what we anticipate.
Look, this is about John Bolton and the minority leader is asking for John Bolton to be deposed in the next five days, which obviously is the time where they're supposed to vote by Wednesday, with one day of a deposition, one day as a live witness, have it all done in five days.
Obviously, you would anticipate given their vote on the prior amendment of John Bolton, generally, Mitt Romney and Susan Collins would vote for this.
Joe, let me ask you again, though, to explain, to people this, we just did John Bolton, you're doing him again with some specifics. What would be the strategy for that?
LOCKHART: I mean, it's just a variation on the same thing which is a variation on the first. It's to make the Republicans vote over and over and over again.
BURNETT: Put it on the record.
LOCKHART: The negotiation I think between McConnell and Schumer was over how many times they'd make them do this. It's just -- it's underlying the point again and again, the Republicans are against having witnesses, and this is to highlight and to make sure there's maximum exposure to the fact that 51 Republicans are saying no witnesses. That's all it is.
BURNETT: And, Scott Jennings, you know, there is on this one, it's easier to make the argument, you're actually putting the exact same time frame of the entire trial. They're going to vote for this to end on Wednesday, but they're going to vote against a resolution that would allow John Bolton to be part of the testimony that would end within the same timeframe. Isn't that harder to do?
SCOTT JENNINGS, CNN POLITICAL COMMENTATOR: I think the Republicans are casting their votes in some regard against the process. Look, the world is not coming to an end tonight or tomorrow or Wednesday. As far as I know, the United States House of Representatives could have already subpoenaed John Bolton if it felt like it and could still do it in the future.
And so, I think one of the signals the Republicans are sending is, handle this through your own process, normal oversight. If the house and Adam Schiff --
BURNETT: Scott, that may be true, but I just have to make the point here. Just because someone else does something wrong doesn't mean it's okay for to you do it wrong too. We all have kids.
JENNINGS: It's not -- why is it wrong for the United States Senate to say to the House, do your homework then talk to us? They are protecting Senate precedents. And they don't want rushed impeachments from here until the cows come home for all future precedents.
And again, if the House wants to convene next week in bring in Bolton and work that process through the normal channels, they're more than willing or able to do it. By the way, if Bolton is serious and he says he wants to testify, there should be no problem.
BURNETT: All right. Can I get back to that point --
JENNINGS: And I don't know why they wouldn't frankly.
BURNETT: Let me ask you that point, Laura, because I think that's important. John Bolton could have spoken before, OK? Now, just because he didn't in my view does not make it OK for someone not to want to hear him. But he didn't. He could have done an interview. He didn't work for the president.
He could have done a press statement, and he could have put out an op- ed, and he could have come and testify to the House. Now he's doing it this way. Little pieces of the manuscript out. What -- what was the game?
LAURA COATES, CNN LEGAL ANALYST: Well, I think what I'm tired of is the game that it seems he's trying to play, as if he's doing this great magnanimous gesture of, look, I'm willing, you will you have to do is signal to me. You'd have to have amnesia. It's not as if Adam Schiff said, oh, is there a man named John Bolton who wanted to talk somewhere?
They tried to get him and what did he do? He said he wasn't going to come voluntarily. He said he had to sue. He'd sue you if you actually subpoenaed him. He had another lawyer who had another client who also was going through litigation.
So, the idea of having them say ignore the fact Bolton was making you go through a protracted exercise of futility, and now that the House is no longer at the picture, it's a Republican-led Senate, now his rubbing elbow opportunities in the future in the conservative world, now he's saying all you ever had to do was ask me, it's so disingenuous of him.
I have to say, I also don't buy the John Kelly scenario, of the idea, well, actually there's so much more to tell you. Well, where have you been since the time that Kupperman got a lawyer? Where have you been since the time the House said, we want to hear from Bolton? Why now? Why at the 11th hour, just before the book goes to print and it gets published and goes to "The New York Times" bestseller list?
Please don't pretend like you had patriotism as your number one priority and the House was the one who had a self-interested motive.
BURNETT: Right, and, David, she's referring to John Kelly saying with no witnesses, the impeachment trial is a job only half done.
AXELROD: Yes. Of course, he wasn't around for this story.
And, you know, the thing with Donald Trump is so many people leave on bad terms, and then be speaking their mind after the fact, and basically, Kelly was signaling, I trust Bolton more than I trust Trump. And he wanted that message out there.
But as to Bolton, you know, he is one of the craftiest veterans of the Washington scene there is.
BURNETT: I like that word, crafty.
AXELROD: My sense of him on this was, he knew he was going to tell this story in this book. And he couldn't tell it without at least having been caught trying to testify. And I think he made a bet that he wasn't going to be called to testify in the Senate, that they would never let him testify in the Senate. But now he can claim that he tried.
And so when the book comes out, no one can say, gee, you should have told that story to the Congress. He'll say, I tried to tell the story to the Congress. You know, some people will say why didn't you tell it to the House?
BURNETT: They asked him to.
AXELROD: And Scott pointed out, he still may get that chance.
But I think he's played this thing like a Stradivarius honestly and is going to cash the checks to prove it.
BURNETT: And I should say in terms of this resolution itself, Tim, we now know that Senator McConnell did call President Trump about this resolution before he put it forth. Again for those just joining, this resolution sets the process from here. So, there will be no witnesses. We have that vote. This is, we're going to adjourn until Monday, you get four hours for closing arguments, couple days to give your speeches and your vote on Wednesday, which is after the president's State of the Union and the Iowa caucuses. But the president is onboard.
TIM NAFTALI, CNN PRESIDENTIAL HISTORIAN: You know, we are as much of a democracy today as yesterday because all the players were elected. But one of the questions we're going to ask ourselves, to what extent are we a constitutional republic at the moment?
Because the Senate has an institutional responsibility to be a coequal branch. And Senator McConnell has decided to assist the president in his own defense. This is the first time in our history that the president's party has controlled the Senate in a presidential trial. This was test of the Senate, and it didn't pass it. It changed the threshold for impeachment.
BURNETT: And they're going to announce the tally here. But we should point out, yes, McConnell said he was coordinating with the president, the White House, was going to make, you know, no bones about where he stood in terms of being a juror.
This vote as we do the final tally, because it was a more detailed and specific definition around John Bolton being a witness, again Mitt Romney and Susan Collins did vote with the Democrats. So, this will be a 51-49.
ROBERTS: Anyone to change his or her vote? If no, the yeas are 51, the nays are 49. The motion is agreed to.
SEN. CHRIS VAN HOLLEN (D-MD): Mr. Chief Justice.
(SENATE IMPEACHMENT TRIAL)
ROBERTS: The majority leader is recognized.
SEN. MITCH MCCONNELL (R-KY): Mr. Chief Justice, I move to table the amendment ask for the yeas and nays.
ROBERTS: Is there a sufficient second? There is. The clerk will call the role.
SENATE CLERK: Mr. Alexander?
Ms. Baldwin --
BURNETT: All right. So, this is the fourth amendment of the four. And, again, they negotiated in advance because Mitch McConnell was going to have to have a lot of Republicans whose seats are in jeopardy this fall.
This was to require the Chief Justice Roberts to rule. So he would be the one passing the rule of whether there would be any witnesses or documents and rule on White House privilege.
Laura, obviously, we know he made it clear he wasn't going to break a tie.
BURNETT: He has no intention of doing this, and now, they're going to vote on if. But yet, they're making the point.
COATES: They are. To underscore in case people didn't quite get Justice Roberts saying this should be belonged to those elected representatives, not to myself. It won't be appropriate, which is what people expected him to do.
There had been some precedent in the Johnson impeachment trial of so many, many years ago. But he did not find that persuasive, he said, to guide his hand now. And I think a lot of it has to do with the idea, this is where the Supreme Court or any court does not want to get into things that are already foregone conclusions, already been decided, already been resolved here. Well, he made this announcement not the beginning of the impeachment trial where people were still wondering about whether he would weigh in. He makes it at the end.
Then he says this issue is -- I'm not going to put my thumb on the scale here, I'm not elected. And, by the way, this is basically moot because you have deemed it so. In many ways he has set himself up to be the most prudent of the people in the room about this issue.
But it doesn't resolve the question ultimately of just how much this point they're doing right now will affect the elections going forward, the future of the Senate, and the House of Representatives, and what impact on the American people's faith in our system of impeachment.
BURNETT: Ryan, is there any argument to the made for the chief justice who is presiding, with a lot of ambiguity, right, and over how he would do so, not very many rules, right, he was able to define the rules, he would not be willing to rule on motions of witnesses, documents, points of law?
GOODMAN: It's interesting, because the Senate standing rules on impeachment actually Rule 6 has a role for the presiding officer to rule on certain questions of evidence, like is the witness make statements that are relevant, relevancy is an issue. I think what's very interesting by this last amendment by Senator Schumer is it seems to be saying, look, we're giving the chamber an opportunity to have the presiding officer, the chief justice rule on questions of executive privilege.
So, if you vote that down, it kind of shows that you weren't really worried about elongated litigation because it would have had the chief justice resolve the issue here which is consistent with the standing rules. So, that's different than what the chief justice was saying before about breaking a die between 50/50 on the side of the senators. I think this is an important symbolic move that's different than the others that Senator Schumer has offered.
BURNETT: Let's go to Phil Mattingly.
Phil, you have new reporting on why we're in this position, where a vote comes after the state of the union and Iowa caucuses. But given that Mitch McConnell is the majority party, he did not want this, the president did not want this after the State of the Union, and yet, that is the deal they've cut.
PHIL MATTINGLY, CNN CONGRESSIONAL CORRESPONDENT: Yes, that's exactly right, Erin. We talked at the beginning of the show about competing pressures here between Republicans internally, Republicans versus Democrats, and basically what we've heard from Republicans n the wake of the decision being made, is that they felt they didn't have a choice. What Democrats were putting on the table for them was essentially is the deal they have right now or tactics that were dilatory enough to essentially have gone through the course of another week, according to Senator John Thune.
To underscore how big of an issue was, given the State of the Union, I'm told by a source, Senator McConnell, majority leader, called President Trump, walked him through the resolution, walked him through the details of things, and kind of the realities on the ground inside his conference and in the Senate, and the president ended up signing off on things. But it kind of shows that that this was pretty tense up here. Democrats ended up having leverage knowing that McConnell didn't have the votes inside the conference to move forward on something and trying to utilize that leverage.
Now, I will tell you, Erin, every single Democrat is going to vote against this resolution when they have the final vote on it. But it just underscored even though we know how this is going to end, even though the witness vote went down 49-51, there's still a little gamesmanship happening inside the Senate to try to change how this is going and most importantly, to have these four amendment votes.
Because remember, Erin, the way the initial resolution was laid out, after that vote that failed earlier, there were no more votes to be had on witnesses. And while McConnell is still tabling all four of these amendment votes, this is another series of votes on subpoenaing John Bolton, on subpoenaing Mick Mulvaney, on subpoenaing documents, something that Democrats didn't think they'd have the opportunity to do if they lost that vote earlier this evening.
BURNETT: So, now, Laura, it has been not once, not twice, not three, not four, but five times that Republicans have had to vote against witnesses, when there is a witness willing to testify who's saying the president did exactly what he's accused of doing.
COATES: And they believe that witness. They believe the --
COATES: Right. They believe what's in it. They say it's not -- and Lamar Alexander said yesterday, it's not really whether the president did it, it's what we're going to do about it. You think about how their defense of Trump has gone, it went from, you have to evidence to prove he did anything wrong to --
BURNETT: Perfect call.
COATES: Yes, perfect call. To, OK, well, you know what, that's not really an abuse of power even if you say is true. To, you know what, we believe you, it probably was an abuse of power, but we don't want to take him out of office. How do you explain and reconcile that for people? And the only way you can do it is, this entire thing for many people in the Senate was about a self-fulfilling prophesy, these questions were rhetorical, the idea of what they wanted to gain from that was something that was really trying to just prove the point.
BURNETT: They are now handing this tally to the chief justice.
Here he is.
ROBERTS: If no, the yeas are 53, the nays are 47. The motion is agreed to.
The question occurs on the adoption of Senate resolution 488. Is there a sufficient second? There is. The clerk will call the roll.
SENATE CLERK: Mr. Alexander?
SENATE CLERK: Mr. Alexander, aye.
SENATE CLERK: Ms. Baldwin, no.
SENATE CLERK: Mr. Barrasso, yes.
BURNETT: And now they are voting on the actual resolution. Four amendments, all of them now complete. On the two relating to John Bolton, Collins and Romney voting with the Democrats. Otherwise, voting with the Republicans, so there have been five votes from Republicans turning down witnesses and documents. This is the vote now, Tim, on the resolution itself. This resolution will move ahead.
Republicans, so there have been five votes from Republicans turning down witnesses and documents. This is the vote now, Tim, on the resolution itself. This resolution will move ahead. Once we get this roll call vote and that means they'll have four hours of closing statements equally divided. Then they'll have time to talk, give their speeches, and a final vote on Wednesday.
You know, precedent is really important. We've seen it in the past nine days. People referring to precedent.
There's some major issues that have just been opened. Again, I go back to the '70s, because much of our thinking about abuse of power comes from the Nixon experience. Congress, after Watergate, said the American people have the right to know information about abuses of governmental power.
I want to know whether in their statements, Republicans are going to limit this view of acceptable abuses of power or not. Is it going to be acceptable to sic the IRS against your political enemies? Is it going to be okay to start FBI investigations on your political enemies? Is it going to be OK to prevent money from going to certain groups that are dissenters?
Is it going to be OK to do -- these are things that the Nixon information did and Congress recognized and both Republicans and Democrats said, oh, my God, the power of the presidency, we have to do something to contain it.
The Republicans have opened the Pandora's box, allowing the possibility of abuse of power. OK, we're talking about Ukraine, but the domestic consequences of this could be enormous. Are they going to use their statements next week to say, OK, well, what we really mean is this.
BURNETT: And, you know, David Axelrod, it does come down to Alan Dershowitz now trying to swim around his comment, the comment, of course, was that if you commit something, do something to get elected and you think that you will be the best president and your election is in the best interests of the country, what you did is OK, that it is therefore justified, even if that is just a small part of your motive.
That's the argument that some people in that room are hanging their votes on.
AXELROD: Yes, I don't know if anybody is going to repeat that argument. That argument is going to be an unfortunate coda on Alan Dershowitz's career.
But it is true that just by the act of not acting and emasculating itself as a legislative body and surrendering its power to the president and saying that he can blanketly deny us the tools we need to have a thorough investigation, they have diminished themselves and they've enhanced the power of the president to a degree that we never, we never would have anticipated. And that is really the concern here.
I'm wondering, given what everybody is saying, what would happen -- and it won't happen, if someone proposed putting a censure motion on the floor of the Senate after this impeachment fails. Because the disturbing thing about this is that what it signals is there is no -- there is no recourse for a president who abuses his power. There's no punishment. There's no -- there's no action that can be taken.
At least the Senate should go on the record as saying this is not proper behavior. But they'll never do that. And as such, all of Tim's fears, as we just expressed them, are very, very valid. And history is going to look back at this as a pivotal moment.
BURNETT: You know, I wonder, Scott, as David points out, that vote, he's saying, won't happen, because Mitch McConnell, you know, wouldn't want it to happen. But from some of the comments we've seen from Republicans, you would have, if they were being honest and consistent with the statements they put out in the past day, you would have a clear majority who would be willing to say what the president of the United States did was wrong and unacceptable.
JENNINGS: Yes, look, I think the statements are essentially an ad hoc, you know, censure, if that's what you want to call it --
JENNINGS: -- of what they think happened here. And I think the problem with the vote on a, you know, on language is, I'm not sure you could get all the senators to agree on what the rebuke should look like. Maybe you could.
But my sense is, you're going to see a series of statements and speeches that express varying degrees of disapproval with what they've seen. I think the wholesale rejection here is not of facts and is not of, you know, the idea that something went on. It's the idea that they didn't want to be given this binary choice, that there was another and maybe better way to handle this, a way that wouldn't have been so partisan.
And that would have been through the normal congressional oversight process, where you have hearings and you bring people in and you pull the levers and you turn the knobs and you use the courts and you use all of your power to try to get to the bottom of something before going straight to the death penalty of American politics.
I think as much as anything, that's what the Senate is rejecting. And if the House wants to, after they acquit the president next week, they could go right back in and do this the right way, which I'm curious to see if that's what they do.
BURNETT: Right or wrong, I won't jump on that, but they very may well, of course, have John Bolton appear.
LOCKHART: But the problem with that theory is the exact opposite argument that the Republicans were making in the House.
They were saying, you can't get all of this information, because you have to move to impeachment to do that.
BURNETT: Right, they were saying, under the oversight rules, you will not be able to get everything you want. Therefore, they were forced, yes.
LOCKHART: Here's what I think is -- there's always unintended consequences to any action Congress takes. By extending this five or six days, the censure motion, the censure idea may take hold. And while it may not happen in the context of the impeachment, it would have to be in regular order, after.
These Republicans, as they hear from their constituents, may decide they need something. And it's not what Mitch McConnell wants, it's what his caucus wants.
So I wouldn't dismiss the censure out of hand, only because one of the things we've seen here is every single day, there's a new piece of information.
BURNETT: And there's going to be more.
LOCKHART: And there's going to be more, and there'll be a bombshell between now and the Wednesday vote. And we may be apt a place on Wednesday where Republicans feel like they need to do something more than just give an individual, as Scott said, ad hoc censure. We don't know. But --
BURNETT: Oh, sorry, go ahead.
AXELROD: I was going to say, there is another player here who's going to have something to say about this and that's the president of the United States, who will depict whatever the Senate does as exoneration, as vindication. And they're going to have to deal with that, just as he did the Mueller report, even though Mueller said, I'm not exonerating the president.
So he's going to declare complete and total victory and vindication, and that's going to make an awkward situation for some of these Republicans as these facts come out.
LOCKHART: And that's exactly why the pressure may be on these Republicans to do something more, because the president makes it even more uncomfortable for them.
BURNETT: Because he makes it absolute, the perfect call.
LOCKHART: The thing that Chuck Schumer has gotten, he's extended this story another five days.
BURNETT: They are handing the vote tally to the chief justice, so let's listen to the tally.
ROBERTS: If no, the yeas are 53, the nays are 47. The resolution is agreed to.
Mr. Majority Leader?
MCCONNELL: Mr. Chief Justice, I ask unanimous consent that the secretary be authorized to include statements of senators explaining their votes, either given or submitted during the legislative sessions of the Senate on Monday, February 3rd, Tuesday, February 4th, and Wednesday, February 5th, along with the full record of the Senate's proceedings and the filings by the parties in a Senate document printed under the supervision of the secretary of Senate that will complete the documentation of the senate's handling of these impeachment proceedings.
ROBERTS: Without objection, so ordered.
MCCONNELL: Further, I ask unanimous consent that when the Senate resumes legislative session on Monday, February 3rd, Tuesday, February 4th, and Wednesday, February 5th, the Senate be in a period of morning business with senators permitted to speak for up to ten minutes each for debate only.
ROBERTS: Without objection, so ordered.
MCCONNELL: And finally, I ask unanimous consent that the trial adjourn until 11:00 a.m. February 3rd and that this order also constitute the adjournment of the Senate.
ROBERTS: Without objection, so ordered.
We are adjourned.
BURNETT: And I want to go to Alan Frumin, who is our parliamentarian expert about the Senate.
And, Alan, what do you make of that? They're going to have ten minutes each outside the actual formal trial itself to make their arguments. They are now adjourned until that begins on Monday, before the closing statements, even.
ALAN FRUMIN, CNN CONTRIBUTOR: This is a nice escape valve for senators. They've been sitting here for two weeks, chomping at the bit, desperate trying to speak, and speak on an issue that has enormous consequences for our constitutional order.
So this does make -- this makes good sense and this is a way of the two leaders trying to keep their respective senators happy.
I was gratified to see the chief do what he did earlier. I noted that the last amendment by Senator Schumer, with respect to the chief's authorities basically parroted rule 7. The chief does have a role to play and I think he understands where he should insert himself and where he shouldn't.
BURNETT: All right.
And, of course, now you have it. The resolution has passed completely along party lines for this trial to continue, the impeachment trial of President Trump. They'll come in at 11:00 a.m. on Monday morning. They will have four hours of time for each side to make their final arguments and then senators with those crucial ten minutes each until Wednesday at the vote, a chance to tell the country what they actually think. Our coverage continues now with Anderson Cooper.