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Senators Sworn in For Trump Impeachment Trial. Aired 3-3:30p ET

Aired January 26, 2021 - 15:00   ET

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

[15:00:02]

JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: So, it is very different.

But Republicans have 20. Twenty seats now held by Senate Republicans are on the ballot in 2022. Mitch McConnell is hoping they can get their power back in that election. And we don't know. Is it a traditional midterm? In a traditional midterm, the Democrats, President Biden's party, lose seats? Or is it more like 2002? Is the pandemic, is this, the insurrection, does that create a climate like 9/11 did, when George W. Bush's party actually gained seats?

The Republicans gained seats in the first midterm because the country was in a national crisis. We don't know the answer to that question. But I get people at home who think this should be about the facts. This should be about the violent insurrection. This should be about the fact, as everyone has said, that that is a crime scene where this is going to play out.

It should be what -- about what the president said, the former president now said, what Donald Trump said and what he did. I get that. However, it's a political institution. There's an election in less than two years now. And a lot of those Republican senators will be thinking about that. They will be thinking about their own power.

WOLF BLITZER, CNN HOST: Yes. And this vote, if, in fact, this point of order vote that Rand Paul apparently wants, that would be, as you correctly point out, an indication of where things may be moving.

We will see where things actually wind up moving once the trial begins in some two weeks?

Gloria, what about witnesses? You have been hearing, we have been hearing a lot about the possibility of witnesses during the course of the trial. And some are asking, should the House minority leader, Kevin McCarthy, be a witness?

GLORIA BORGER, CNN SENIOR POLITICAL ANALYST: Well, Kevin McCarthy, who has been all over the place on saying whether the president has responsibility for this, or maybe all of us have responsibility for this, but he was a person who was trying to get in touch with people inside the White House for -- to get more help.

And one thing you need to have if you're going to have a witness is somebody who is willing to testify. They don't want to get into a situation where they try and get someone to testify who doesn't want to come. I mean, remember what happened with John Bolton in the last impeachment.

So, would somebody like Kevin McCarthy tell his story? The person that I want to hear from who I don't think they will get, maybe they wouldn't even ask, is the former vice president of the United States. He was the one in hiding because people were after him threatening to get him, presumably to do him great harm.

Why didn't he hear from the president of the United States? What calls did he make? What does he know about the National Guard being called out? We know that he was involved in that. How involved was he? Why was he so involved? I mean, there are lots of questions that people would like to hear answers to.

And I think one thing we have to remember about a trial like this is that, yes, you have to convince the people in the chamber. But the American public will be watching this. The American public watched this story unfold in horror on their television screens.

What we don't know is how it unfolded privately and what the president's behavior was while it was unfolding. Was he happy that this was occurring? What was he trying to do to stop the violence? With whom was he speaking? Who was he calling? Who was trying to convince him, was it Ivanka Trump, to go out there and give a statement? How reluctant was he?

I mean, this all goes to intent and to somebody, if he wanted these mobsters to storm the Capitol, they were doing what he told them, or was he upset? Was he angry? Was he concerned about the health of the people in that chamber who were hiding under tables and in their offices because a mob was coursing through the Capitol?

I mean, this is a story that needs to be told, not only to people in that chamber, but for history and to the American public. So, presumably, you're going to want witnesses who want to tell the truth and want to tell that story.

BLITZER: It looks like all 100 senators have now signed the -- what's called this juror book, affirming they are now jurors in this trial, and they were sworn in, as well.

Norm Eisen, game out what you anticipate would be the former president's defense strategy.

NORMAN EISEN, BROOKINGS INSTITUTION: Thanks, Wolf.

The former president is going to, we know, talk about anything other than the insurrection--

BLITZER: Hold on. Hold on for a second, I want to listen to the Senate. UNIDENTIFIED FEMALE: Hear ye, hear ye, hear ye.

All persons are commanded to keep silence, on pain of imprisonment, while the House of Representatives is exhibiting to the Senate of the United States an article of impeachment against Donald John Trump, former president of the United States.

[15:05:08]

SEN. RAND PAUL (R-KY): Mr. President.

SEN. PATRICK LEAHY (D-VT): The senator from Kentucky.

PAUL: Article 2, Section 4 of the Constitution says, the president, vice president and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery or other high crimes and misdemeanors.

Article 1, Section 3, Clause 6 states: "When the president of the United States is tried, the chief justice shall preside."

As of noon last Wednesday, Donald Trump holds none of the positions listed in the Constitution. He is a private citizen. The presiding officer is not the chief justice, nor does he claim to be. His presence in the chief justice absence -- chief justice's in absence demonstrate that this is not a trial of the president, but of a private citizen.

Therefore, I make a point of order that this proceeding, which would try a private citizen and not a president, a vice president, or civil officer, violates the Constitution and is not in order.

LEAHY: Under the precedents of the Senate regarding constitutional points of order, including those of the Senate while sitting as a court of impeachment, the chair submits the question to the Senate.

Is the point of order well-taken?

SEN. CHUCK SCHUMER (D-NY): Mr. President.

LEAHY: The majority leader.

SCHUMER: The theory that the impeachment of a former official is unconstitutional is flat-out wrong by every frame of analysis, constitutional context, historical practice, precedent, and basic common sense.

It's been completely debunked by constitutional scholars from all across the political spectrum. Now the junior senator from Kentucky read one clause from the Constitution about the Senate's impeachment powers. He left out another from Article 3, Section 2 -- quote -- "Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust or profit under the United States" -- unquote.

If the framers intended impeachment to merely be a vehicle to remove sitting officials from their office, they would not have included that additional provision, disqualification from future office.

The Constitution also gives the Senate -- quote -- "the sole power" to try all impeachments. So, what have passed Senates decided on this question?

In 1876, President Grant's secretary of war, William Belknap, literally raced to the White House to tender his resignation before the House was set to vote on his impeachment. Not only did the House move forward with the impeachment, but the Senate convened a trial and voted as a chamber that Mr. Belknap could be tried -- quote -- "for acts done as secretary of war, notwithstanding his resignation of said office."

The language is crystal clear, without any ambiguity.

The history and precedent is clear. The Senate has the power to try former officials. And the reasons for that are basic common sense. It makes no sense whatsoever that a president or any official could commit a heinous crime against our country and then defeat Congress' impeachment powers and avoid a vote on disqualification by simply resigning or by waiting to commit that offense until their last few weeks in office.

The theory that the Senate can't try former officials would amount to a constitutional get-out-of-jail-free card for any president who commits an impeachable offense.

Ironically, the senator from Kentucky's motion would do an injury to the Constitution by rendering the disqualification clause effectively moot. So, again, by constitutional text, precedent and common basic sense, it is clearly and certainly constitutional for -- to hold a trial for a former official.

Former President Trump committed, in the view of many, including myself, the gravest defense ever committed by a president of the United States. The Senate will conduct a trial of the former president, and senators will render judgment on his conduct.

Therefore, the point of order is ill-founded and in any case premature. If senators want this issue debated, it can and will be argued during the trial. Therefore, I move to table the point of order, and I asked for the yeas and nays.

LEAHY: Is there a sufficient second?

UNIDENTIFIED MALE: There is.

LEAHY: There is a sufficient second. The clerk will call the role.

CLERK: Ms. Baldwin.

SEN. TAMMY BALDWIN (D-WI): Aye.

CLERK: Mr. Barrasso.

SEN. JOHN BARRASSO (R-WY): No. [15:10:03]

CLERK: Mr. Bennet.

SEN. MICHAEL BENNET (D-CO): Aye.

CLERK: Ms. Blackburn.

SEN. MARSHA BLACKBURN (R-TN): No.

JAKE TAPPER, CNN HOST: So, what's going on right now is, Senator Rand Paul of Kentucky has offered a motion, saying that hearing this trial is not constitutional, because Donald Trump is no longer president.

And while most scholars who have examined this would disagree with that, it is not a matter of settled law. So, right now, people are voting. Senators are voting on whether or not to table Rand Paul's motion.

So, voting to table the motion yea is a vote to continue with the impeachment trial.

Manu Raju is on Capitol Hill right now.

And, Manu, does Rand Paul, does Senator Paul have any idea of how many senators he expects to vote with him to table -- I mean, well, to table the impeachment trial, to get rid of the impeachment trial?

MANU RAJU, CNN SENIOR CONGRESSIONAL CORRESPONDENT: He just told a group of reporters that he believes that he will have up to 40 Republicans supporting him.

In his view, that shows how there is no support within the Republican Conference to convict Donald Trump.

Now, it's important to note, as you noted correctly, Jake, this is a procedural vote. This is not a boat on the merits of the case. This is a vote essentially about whether to keep alive this objection that Rand Paul has raised in order to question the constitutionality of the trial.

It is not, should we acquit Donald Trump? It's not even a vote on the merits of the constitutionality. But the vote will give us an early window into how many Republicans are thinking that this case should not move forward.

And, in Rand Paul's estimation, he believes that's 40. That is almost the -- 40 out of 50 Republican senators could get on board. We will see if Rand Paul is right. Republican leaders are not whipping this vote. They told me -- multiple Republican leaders have told me that they view this as a vote of conscience, meaning senators can vote how they like.

But two Republican leadership -- three members of the Republican leadership, John Cornyn, Roy Blunt, John Barrasso, all indicated they would side with Rand Paul on this question. It will be interesting to see how Mitch McConnell comes down.

I asked Mitch McConnell at his press conference whether Donald Trump committed an impeachable offense. He did not say. He said that there's a trial, there's a process that takes place. He would not say he said the last time he spoke with Donald Trump was December 15, the day after the Electoral College certified Joe Biden's victory.

So they have not spoken in quite some time. And we know, privately, McConnell has raised concerns about the constitutionality about the president's actions, about whether they amounted to an impeachable offense. He's privately thought so. He publicly raised concerns about what Donald Trump has done.

But where will he come down in the end? This vote could give us an early window into his thinking? So, Jake, while it is not going to determine how senators ultimately vote, whether Republicans -- how many Republicans are keeping open the option of this being a constitutional proceeding will be an important indicator of how this vote turns out, and we will see if Rand Paul gets most, if not all the Republican Conference to side with him here.

TAPPER: OK.

And I want to bring in a Norm Eisen.

Norm, regardless of the merits of the accountability, whether or not Donald Trump should be held accountable, there is this issue of whether or not it is constitutional. I want to read from the nonpartisan Congressional Research Service.

They said -- quote -- "Most scholars who have closely examined the question about whether a former official," as opposed to a current official, "whether a former official can be found guilty in an impeachment trial, have concluded the Congress has the authority to extend the impeachment process to officials who are no longer in office" -- unquote.

But I want to just -- you cited two cases. And I want to just make sure our viewers understand.

We don't have Norm anymore, so I will just continue to talk to maybe -- maybe somebody else.

In 1799, Tennessee Senator Blount was a former official, and the Senate voted, no, we don't have a -- I'm told Norm is back.

Norm, you talked about the 1799 case of Senator Blount from Tennessee, but the Senate voted. He was impeached, but the Senate voted to not hear his case, because they concluded he did not have -- they did not have standing because he was a former official.

And then there's the case in 1876 of the former secretary of war, Belknap. The House impeached him. The Senate voted that they did have standing, but they ultimately did not vote to convict. And based on what I just read and historical documents about -- from that time, they did not get that two-thirds majority in large part because people thought that because Belknap was a former official, a former secretary of war, had resigned, that he no longer -- that they no longer had standing.

So, I understand that most scholars are with you, according to CRS, and agree that it is constitutional for an impeachment trial of a former official, but the history is more muddled, would you not agree?

[15:15:11]

EISEN: Well, Jake, while there are some of those factors to take account of, the scholars who have looked at this do not actually believe it's a very close question.

In part, that's because our impeachment and trial and disqualification power was very heavily based on a notorious impeachment in Anglo- American law, the Hastings impeachment, which framed what the Constitution's drafters thought. Hastings was an ex-official.

The vote on standing is a binding legal precedent of the Senate. And as we heard from Leader Schumer, Jake, the Constitution would make no sense. Why have a disqualification power if you can't disqualify a president who, at the very end of his tenure, does terrible things that show is unfit and then tries to run again?

So, it's -- while there's always some evidence around the margins, this is not a close question. And this vote we see now of the Republicans falling into line behind Rand Paul and behind Donald Trump, Jake, it's like they have taken a pledge of allegiance, loyalty to a man, instead of to the Constitution.

So I think it's very troubling. And it's not founded by the law at all, really.

TAPPER: And, Abby, we shouldn't act as though everybody voting in favor of Rand Paul's motion here is doing so because they have constitutional objections.

A lot of them are just doing what they think Donald Trump would want them to do and what they need to do to avoid a primary challenge.

ABBY PHILLIP, CNN SENIOR POLITICAL CORRESPONDENT: And they have said as much.

And, in fact, it goes beyond Donald Trump. It's also, if you listen to people like Senator Marco Rubio, his argument has been that this is like pouring gasoline on a lit fire, which goes back to the argument that we heard even in the days after what happened on January 6, that many Republicans are basically saying, don't do this, don't seek what they're calling retribution, because the people are already angry.

There's -- we saw their anger play out on January 6. Why do something to provoke them further? And so you can see how that argument is disturbing on one level, because it effectively says, well, the angry mob that attacked the Capitol, they're going to get angrier if you impeach Trump, and so you shouldn't impeach Trump so as to not provoke them further. That is the argument that many Republicans are making. It has

absolutely nothing to do with the constitutionality of it. It has to do with a fear of the very same people who attacked them, who vandalized the building that they're standing in right now.

TAPPER: It's a weird argument in favor of not only negotiating with terrorists, but acquiescing to them.

PHILLIP: Yes. I mean, they are conceding to the terrorists, effectively.

I mean, but part of the problem here is, you also get the sense that the January 6 insurrection is being lumped in with all kinds of other political activities, that it wasn't what it really was, which was an attempt to stop the government from operating.

TAPPER: Let's listen in.

LEAHY: The point of order is not sustained.

Majority Leader.

SCHUMER: Mr. President.

UNIDENTIFIED MALE: Motion.

SCHUMER: I have a resolution to organize the pretrial proceedings at the desk.

LEAHY: Clerk will report.

CLERK: Senate Resolution 16 to provide for related procedures concerning the article of impeachment against Donald John Trump, president of the United States.

SCHUMER: I asked for the yeas and nays.

LEAHY: Is there a sufficient second?

There is a sufficient second. The clerk will call the roll.

CLERK: Ms. Baldwin.

BALDWIN: Aye.

CLERK: Mr. Barrasso.

BARRASSO: No.

CLERK: Mr. Bennet.

BENNET: Aye.

CLERK: Ms. Blackburn.

BLACKBURN: No. TAPPER: While we're watching the yeas and nays right now, let's go to Ryan Nobles right now, because we're all keeping an eye on how Senate Majority -- I'm sorry -- Senate Minority Leader Mitch McConnell voted.

Ryan, how did he vote?

RYAN NOBLES, CNN CORRESPONDENT: Well, he voted against tabling the motion, Jake, which means that he was in support of Senator Paul's effort here to try and declare the impeachment trial unconstitutional.

But this, of course, just a test vote in many ways. It doesn't necessarily explain to us in a fulsome way how Senator McConnell feels about this. But the fact that he would side with senator Paul vs. siding with the Democrats on this at least indicates which way he is leaning.

[15:20:00]

And we have approved for some time now that he's taken somewhat of a hands-off approach to the impeachment trial. He has said that he wants his conference to vote their conscience. As Manu mentioned before, they're not necessarily whipping the vote.

But, earlier today, he did invite Jonathan Turley, that constitutional law professor who firmly believes that the impeachment trial is unconstitutional, to speak to a group of senators at a GOP luncheon this afternoon.

And now we see that he votes against the motion to table, so that perhaps giving us some insight into how Mitch McConnell feels about this impeachment trial. Of course, his opinion is so important, because, if he were among the group of Republicans that might even be willing to vote to convict, you can bet that there would be a whole crop of Republicans that would follow suit.

At this point, Jake, at least just based on his actions today, this vote and the decision to bring Turley into that conference, that maybe shows us that this idea that there is 17 Republican votes to convict President Trump is really a fantasy, and it is unlikely to occur -- Jake.

TAPPER: Very interesting. Thanks, Ryan.

So, that's interesting. Mitch McConnell voted with his fellow Kentuckian Rand Paul, Rand Paul arguing that this entire trial is unconstitutional because Trump is no longer in office. And, obviously, five Republicans sided with the 50 Democrats, but Mitch McConnell not one of them.

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: It's very, very interesting.

As Ryan said, it doesn't tell us whether or not Mitch McConnell is going to vote yes or no for sure when it comes to the end of the trial, and they have to vote. But the fact that he decided to go with his fellow Kentuckian and to say, I don't believe this is constitutional, means that he took the off-ramp that you mentioned earlier.

And he has been very, very clear about how horrific the president's actions were, how the president has responsibility for everything that happened in the U.S. Senate and in the House that day.

But he's gotten so much blowback, more than we have ever seen, even seen in public, a lot of it in private. And it just makes you wonder whether or not he's at least doing this for now to keep everybody quiet.

Having said that, if you vote, even if it's procedurally, effectively to say it's unconstitutional, how do you then vote yes to convict him?

TAPPER: And especially because the margin is -- needs to be higher, as opposed to a majority vote, which this was.

BASH: Yes, right.

TAPPER: It needs to be a two-thirds vote, 67 votes.

PHILLIP: I think laying out the two sides of this argument is really instructive.

One side says a sitting president can do whatever he wants, effectively, in the last week, maybe the last two weeks of his term, and the Senate doesn't have any constitutional remedy for that. The other side says, if you are able to convict a former president, you can convict any former president.

And I think that is actually -- you have to choose which side of this argument you're on. But, clearly, you can see why some Republicans might want to say that they don't want to open the door to being able to impeach former presidents for any reason long after they have left office.

But, on the Democratic side, the argument is pretty clear. There must be some consequence if a president walks down Fifth Avenue and shoots someone. What would be the consequence for that, other than impeachment?

And so this is maybe an unsettled constitutional problem. But I think Republicans are making clear where they stand on that. And it's partly for political reasons, but I think also partly because there's -- I think there's a desire to sort of not open that door to future situations in which you can clearly envision something like this happening.

TAPPER: It's just so strange, because -- look, I'm not a constitutional scholar. I don't have an opinion this. But a lot of people who are voting to not have any consequences for Donald Trump are doing so not because of constitutionality, but because they don't want to hold Donald Trump to any sort of standard. And that's -- and they never have.

Some of these are the same people who will, like, vote to deny government assistance to somebody because they test positive for drugs. They believe in consequences for everybody else, but the president, outgoing president, former president, can literally incite an insurrection the Capitol to hold onto power, to subvert democracy, and they don't think there should be consequences.

So, if they don't believe that an impeachment trial is constitutional, that's obviously a legal position, a legal argument. But if you don't believe that, then what consequence? What consequence should there be?

[15:25:09]

Or do you think that some people are just above the law? I mean, should there be a criminal trial? I mean, Mitch McConnell and Kevin McCarthy, for that matter, have said that Donald Trump played a role in the terrorist attack. He played a role. We all saw it. We all predicted it, not the specifics, but that there would be violence.

So, if not an impeachment trial, if not even a case, then what?

BASH: Well, I think you're talking about some real examples of contradictions with regard to a point of view on justice and what does justice mean? The X-factor here that you didn't mention, but we were talking about earlier, is just the raw politics of it.

And it's not -- for some of these senators, it's not so much that they don't want Donald Trump to be held accountable. It's that they don't want to be held accountable politically by their base, who thinks that the notion of convicting Donald Trump right now is anathema.

TAPPER: That's just -- I mean, Bill Clinton lied under oath, and they thought that there needed to be -- he needed to be removed from office for lying under oath.

Donald Trump incites a terrorist attack, and they have a different standard -- Wolf.

BLITZER: It's interesting.

Manu Raju is joining us from Capitol Hill.

Manu, so, the vote, 55 saying it was constitutional to go ahead with this trial of a former president, 55 to 45.

Let's listen to the senator pro tem, Senator Patrick Leahy, for a moment.

UNIDENTIFIED MALE: Under the provisions of S.Res.16.

LEAHY: On the motion, is there--

UNIDENTIFIED FEMALE: All in favor, say aye.

LEAHY: All in favor, say aye.

SENATE: Aye.

LEAHY: Opposed, no. The ayes have it.

And the Senate sitting as a court of impeachment is adjourned until Tuesday, February at 1:00 p.m.

BLITZER: All right, so, there you have the senator pro tem announcing that the Senate impeachment trial of the former president adjourned until February 9. That's when the actual trial will begin.

Manu, let's talk about this really important vote, 55-45; 50 Democrats, five Republicans said, yes, it is constitutional to go ahead with this impeachment trial of a former president; 45 Republicans voted and said they think it's unconstitutional.

But walk us through the names. Give us a little sense of who's voting, because, in order to convict the president, you will need 17 Republicans. Only five voted with the Democrats this time.

RAJU: Yes, at least 17 Republicans, if all 50 Democrats are united in voting to convict. Here, just five Republicans broke ranks and to essentially move ahead with this trial.

And those five Republicans are the names that we have been focusing on for some time, people who might vote to convict Donald Trump, Mitt Romney of Utah. He's the lone Republican who voted to convict Donald Trump in 2020 in his first impeachment trial. Ben Sasse of Nebraska. He has been very, very critical of the president's actions, the former president's actions, after the November 3 elections.

Susan Collins of Maine, also someone who has been critical of Donald Trump, a frequent swing vote in the Senate, someone who just won her reelection. Senator Lisa Murkowski of Alaska, another Republican, she's actually up for reelection in 2022. But she has been -- she's a moderate. She's a swing vote. She's been very, very critical about Donald Trump. She believes his actions have been lawless.

And the fifth Republican senator is Senator Patrick Toomey. He is the Republican from Pennsylvania, someone who took to the floor in the aftermath of the riot that occurred on January 6, targeted the president specifically for his actions, but who has been mum in recent days.

I asked Toomey even today and yesterday if this trial, in his view, is constitutional. He refused to say, but he's making it clear here.

But, Wolf, as you mentioned, those are just five names. The overwhelming majority of Senate Republicans 45, voted to essentially throw out these proceedings. They wanted to keep alive this procedural motion to essentially target the constitutionality of the trial.

So, does that mean that there can be 17 votes to convict? At the moment, it seems highly, highly unlikely. It is consistent with the reporting that I and also my colleagues here have done over the last several days in surveying virtually every member of the Senate Republican Conference. At the moment, most are, for a variety of reasons, siding with the

process concerns, siding with the concerns -- siding with Donald Trump, and not suggesting there could be anywhere near the idea of convicting the former president.

If he's convicted on 67 votes, then there will be a simple majority to bar him from ever running for office again. But you first need to pass that 67-vote threshold. And that simply isn't there.

Now, of course, we will see, Wolf. This trial will be compelling. Democrats will have an opportunity to make their case.