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New Details About Trump's Call With McCarthy Show Trump Had No Intention Of Calling Off January 6th Rioters At Capitol; Senator Tuberville Stands By Account Of Trump Call On January 6th, Telling Trump Pence Was Being Evacuated; Senate Jurors Hours Away From Vote On Trump's Fate. Aired 9-10p ET

Aired February 12, 2021 - 21:00   ET

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

[21:00:00]

ANDERSON COOPER, CNN HOST: He answered, "No, not at all." A humble hero! And a much-deserved honor!

The news continues. Let's hand it over to Chris for "CUOMO PRIME TIME." Chris?

CHRIS CUOMO, CNN HOST: All right, Anderson, thank you very much.

I am Chris Cuomo and welcome to PRIME TIME.

There is new reporting that makes clear that Trump's reaction to the Insurrection alone, his reaction alone, is damning.

Breaking details on that phone call between Trump and McCarthy, McCarthy was absolutely pleading with Trump to send aid to the Capitol. In response, Trump said, "Well, Kevin, I guess these people are more upset about the election than you are."

In that moment of crisis, Trump showed spite. No wonder McCarthy said to him, as rioters were breaking into his office, through the windows, "Who the F do you think you're talking to?" No wonder McCarthy was blaming Trump for the attack in the immediate aftermath.

This call is reported, according to lawmakers, who were briefed on it, afterwards, by McCarthy, Republicans. One of them is GOP House Member Jaime Herrera Beutler, who went on the record to CNN.

Another Republican Member familiar with the call says it "Proves that the President knew very early on what the mob was doing. And he knew Members were at risk and he refused to act. It is a violation of his oath to office to fail to come to the defense of Congress and the constitutional process immediately."

Now, it is not easy to get people to argue what is clearly in defiance of fact, even lawyers. That's why Trump is on his third-string defense. And today, they got caught in a very important lie.

They said the call Trump made to Senator Tommy Tuberville during the Insurrection was hearsay, like "It didn't happen. We don't really know." Thus, they argue "At no point was the President informed that the Vice President was in danger."

Tuberville has said on the record that he told Trump on a phone call, during the Insurrection, that Pence was being ushered out. And he stands by that account today. Not hearsay!

Trump was informed and he did nothing. Worse, after he knew Pence was being escorted out, he tweeted, an attack on him, that led the mob to look to hang him.

Two points of proof that, Trump did nothing to help, the VP, or the other Members of Congress, that he only reached out to mock their peril, and pressure them, to do his bidding on the vote. That violates his oath of office. That is arguably impeachable, even if he had nothing to do with starting the attack.

While McCarthy is asking for help, he essentially says "Mm! The other guys seem to care more." Think about it!

The Trump defense to all of it is simple. Everything that you just had confirmed to you about the phone calls, all we know that Trump said that day, and before, all of it, "Even if true, it's all OK, because everybody does it. Everybody does the same thing that Trump did. Politicians are always talking about fighting. Democrats use the word all the time, the media too."

Listen.

(BEGIN VIDEO CLIP)

MICHAEL VAN DER VEEN, TRUMP DEFENSE LAWYER: This is ordinary political rhetoric that is virtually indistinguishable from the language that has been used by people across the political spectrum for hundreds of years.

(END VIDEO CLIP)

CUOMO: "Indistinguishable," that's going to be the key word. But first, even I made the cut. I was in the defense. I was an example of people who do exactly what Trump does. Listen.

(BEGIN VIDEO CLIP)

CUOMO: Show me where it says that protests are supposed to be polite, and peaceful?

(END VIDEO CLIP)

CUOMO: I did say that obviously. It's my face. Different hair, same face.

Context is everything. Trump & Co. were criticizing Black protesters, and their allies, because they were shouting at cops, that they were at fault for showing outrage.

"Shouldn't say how society is, how bad it is, shouldn't talk like that. Black people are not limited to singing hymns and going home. Outrage can convey a message and make change."

But the defense team, leave out what I say next.

I say next, "Looting, arson, violence, now, that's something else. Don't confuse that with protests or people doing it with protesters. There are bad people in with good people in these situations. That's the truth."

[21:05:00]

Now, why would they leave that out when it immediately follows? Because Trump never said anything like that. And if he had, we may not be here today. But why did he leave it out?

Is it because while I was justifying allowing protesters the right to be angry, even if they're Black, he was motivating action?

His own people know it. At least 16 of Trump's own administration officials were so horrified by his conduct, they quit in protest, after the Insurrection, because they too, saw the clear link between Trump's conduct and the Insurrection.

What he wanted is clear. This trial is really about what his Party is willing to own. An acquittal will not just give Trump a pass. It will give safe passage to those who attacked. The Kooks will celebrate victory. And they may well look to capitalize on it.

You know they all know that Trump did them dirty, on that Republican side. They all know he failed at his duty. And if he were a Democrat, they would all be saying it.

And here's the point. What you see, what I see, they see too. They are not blind to what honoring an oath looks like, because this is what they did today, everyone, Right and Left, were on their feet.

The one unified moment we've had was for who? Capitol Police Officer Eugene Goodman just awarded a Congressional Gold Medal for his valor on January 6. Why? Because he did the right thing in a hard moment. He took action and didn't put himself first. He put you people first, in Congress.

So, you have to ask, how can the Republican Members of the Senate applaud what Goodman did, and then vote to validate his opposite?

Let's bring in the better minds, Manu Raju, and Michael Smerconish.

Manu, this reporting comes out, literally on the precipice of this decision. Let's start with the Tuberville call. Very interesting!

MANU RAJU, CNN CHIEF CONGRESSIONAL CORRESPONDENT: Yes, I know.

CUOMO: What was the defense play in saying that it's hearsay when they know Tuberville is in the room, and not going to sit down and let himself be called a liar?

RAJU: Chris, they really didn't have any good answers to what Donald Trump did on January 6th, his actions, and whether he knew that the Vice President was in danger. They just could not and did not answer that question. They were asked in various forms.

That Tuberville exchange was quite remarkable because what the Senator from Alabama, who is a big Trump supporter, and probably owes his seat, in large part, to Donald Trump's support, even voted with Donald Trump to overturn the electoral results in two states, he said very clearly that Donald Trump had called him and - attempted to call him, actually called Mike Lee, Mike Lee, the Senator put him on speakerphone, and Tuberville talked to him.

And Tuberville said to him, "I can't talk to you right now because the Vice President has been evacuated." 10 minutes later, Mike Pence is the subject of a tweet from Donald Trump at getting attacked by Donald Trump. Now, that's what the Trump attorney said today was hearsay.

And then, when I caught up with Tuberville, later in the afternoon, after the proceedings, he said he stands by that account.

Chris, his exact quote, was "This is what the President told me," he said, "Mr. President," he told the President, said "Mr. President, they've taken the Vice President out. They want me to get off the phone. I got to go." That was the extent of their phone call.

So, all this shows, Chris is that Donald Trump was aware of what was going on. But the Trump team just did not have any real clear answers about why he didn't act sooner, what he was doing, what his mindset was. They sidestepped that question time and again.

And I can tell you, in talking to Republican senators tonight, they were just not satisfied with his responses, including Bill Cassidy, who asked the question about Tuberville and the Pence exchange, and he said, he said - I said, "Are you satisfied with the response?" He said, "No."

CUOMO: How could he be? They lied.

Now, you double that up with, Michael, what we call, arguing in the alternative. Even if you want to say that Trump didn't incite the riot, he didn't even want a riot, then why didn't he do anything to stop it?

That McCarthy call, I mean, that is the most cold-blooded thing I have ever heard, out of politics. I've heard a lot of things like that in terrorist organizations. But McCarthy saying, "Hey, man, we need help." And he says, "Hey, I guess these people care more about the election than you do."

This is where you speak.

MICHAEL SMERCONISH, CNN HOST, "SMERCONISH": OK, I didn't know that.

Here's the big picture view. Today was the day that the focus shifted and shifted in line with what you and I talked about last night. We've talked about November 3rd through January 6. We've talked about the President's speech on January 6. Today, the big takeaways are all about the inaction.

[21:10:00]

Chris, there's a 90-plus minute window, where Rome was burning, and Trump was doing nothing.

The McCarthy call is significant because it goes to McCarthy's, and Trump's state of mind. Trump evidencing his desire to see the rioters continue. Notice he didn't do what Kevin McCarthy was asking.

I thought the most telling exchange today was when Murkowski and Collins posed the Howard Baker question to the Trump lawyers, "What did he do? And when did he do it? Specifically, exactly when did President Trump learn of the breach of the Capitol? What did he do? Be specific." They had absolutely no answer for that.

So, the realization now by everybody is that Trump was just standing idly by, no doubt, watching all of the rioting, all of the violence, and letting it go.

CUOMO: And Manu, in terms of the reporting, does any of it resonate?

RAJU: I don't think so, Chris. Honestly, it just - this cake is baked. The Republican senators are making it very clear, they are going to acquit.

They have heard this - this new reporting is just in line with what the House Impeachment Manners have presented over the last couple of days. It is - underscores what they are - have been arguing on the Senate floor.

So, the senators are aware of these - this story. They are aware of what Donald Trump did in the run-up to January 6, what he did to bring that rally to here to Washington, what he did to speaking to that rally, and what he did not do once this rioters came into the Capitol.

And, at the same time, it's very clear, in talking to virtually all these Republican senators, over the last several days, and several weeks that they still are not going to move to convict because they say the Senate should not be trying a former president. So, you can say what you want about that argument. But that is their argument.

So tomorrow, when that key vote happens, I would be surprised if you get more than six Republican senators breaking ranks. I would be surprised that even if Bill Cassidy would vote to convict Donald Trump. There are some signs that he might not. We'll see where he comes down.

But at least five are going to break ranks, I think, maybe six, but certainly not 17. And that's what they need to get to 67 tomorrow, Chris.

CUOMO: Mike?

SMERCONISH: The case may end tomorrow. But the trickle of detail is still going to come. I mean, the Tuberville phone call, the McCarthy phone call, you know who I want to hear from? Former Vice President Mike Pence.

How does Mike Pence feel, when all of a sudden, now, the focus of this thing is whether President Trump knew he was imperiled, and still did nothing, and still was sending out a tweet - a tweet that was congratulatory of the protesters, and critical of Pence? That story is going to get told. It's a question of when.

CUOMO: What's the price tag?

SMERCONISH: For that book? Big!

CUOMO: No. That is - that is a good answer!

But look, we know that they think there is a price to convicting. Is there any price to acquitting?

RAJU: I think--

SMERCONISH: Well, you and I have spoken before. If it were a vote behind closed doors, there's no doubt that this would be a conviction, and it would be overwhelming, right? Well beyond the two-thirds.

RAJU: Yes. And Chris, the easy vote for Republicans is to acquit. I mean, if they were to vote to convict, they are going to invite so much backlash.

They are seeing what has happened to those 10 House Republicans, who voted to impeach. They saw what happened to Liz Cheney, and her getting threatened to get booted out from her leadership spot. She survived that challenge.

But Mitch McConnell, the Senate Republican Leader, he knows full well, that could happen to him. Yes, he just won reelection.

But talking to Republican senators, they have told me that he could potentially lose support, as Republican Leader, where he's the longest-serving Republican leader in history. He could potentially lose support, if he were to vote to convict. And he has a finger on the pulse of his Conference. He knows where his Conference is.

The easy vote for Republicans, politically, is to acquit, which is why they're going to acquit, Chris.

CUOMO: Just to bring it back to McCarthy, if you need a metaphor for just how strong the pull is to respect Trump's base, McCarthy, basically gets told, "You know, have a nice time with the barbarians," tells Trump, you know, throws the F-bomb at the President, or the former president, and then still goes to kiss his ring, still votes the way he wanted to, to decertify, right after the Insurrection, where he knew for a fact that Trump left him sitting like a duck, Michael.

SMERCONISH: Well, how badly does he want to be Speaker of the House in 2022? That's what it tells you, right?

CUOMO: I guess it does. I mean, I have to be honest, I know you guys are right. Manu, I know you're right. And I really trust your perspective on it, Michael. It just feels so wrong.

[21:15:00]

You are basically damning yourself to fealty to Trump. You are resigning yourself to own whatever political violence comes from this, from these crazy extremist groups that you're going to be given a victory slap to. I mean, I just can't believe--

SMERCONISH: Well don't misunderstand--

CUOMO: --they're rushing into it.

SMERCONISH: --don't misunderstand--

CUOMO: Go ahead, Mike.

SMERCONISH: --don't misunderstand my analysis for approval because it sure as hell isn't.

CUOMO: I got you. I'm just telling you I hear your heads. I'm just telling you, my heart's just telling me "I can't believe they're getting so quick to put themselves in such a bad, damnable situation."

Manu, thank you for the spot-on reporting.

And Michael, as always, all week, you've been really keeping us crystal clear on what matters. And I appreciate you, brother.

Now--

SMERCONISH: Thank you.

CUOMO: --I mean, look, it's never been about the facts. There are no good facts for Trump in this situation. We would offer them up if they were there. Because this is a situation nobody wanted to be in. We're in the middle of a pandemic.

But if this doesn't matter, to Kevin McCarthy, the guy is on the phone with you, think about it, put yourself there, it's all common sense, right?

You call me and say, "You've got to call these people off. All four fans of CUOMO PRIME TIME are coming after us." And I say, "Hey, man, I guess they love the 'Mo-man more than you do!" And you throw the F- bomb at me, then, you vote in my favor right after it, even though you say you think I'm responsible, and then you go to the mat for me in this situation? That's how strong the pull is.

Now the question is could there be some surprise tomorrow? Could the Managers call McCarthy to testify? Let's bring in two brilliant legal minds to go through the points that were made and what the tension is on each side, next.

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TEXT: CUOMO PRIME TIME. (END VIDEO CLIP)

[21:20:00]

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TEXT: LET'S GET AFTER IT.

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REP. JAMIE RASKIN (D-MD): There's a very strong argument that he's - he's guilty, even under the strict Brandenburg standard. Why? Because he incited imminent lawless action, and he intended to do it, and it was likely to cause it. How do we know is likely to cause it? He did cause it. They overran the Capitol.

This is about protecting our Republic and articulating and defining the standards of presidential conduct. And if you want this to be a standard for totally appropriate presidential conduct, going forward, be my guest. But we're headed for a very different kind of country at that point.

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CUOMO: Now, that's Lead Impeachment Manager Jamie Raskin, going at the idea of the speech and the intent.

But there is an entirely other wrinkle that was really fleshed out today. In the law, they call it an "Even if" argument. "Even if Trump didn't want this to happen, even if he didn't incite it," once it happened, isn't it a breach of his duty alone, just how he reacted?

Let's bring in the two best legal minds I could have on the show. We have Preet Bharara, and Robert Ray.

Thank you both gentlemen, appreciate you making time for me tonight.

PREET BHARARA, FORMER U.S. ATTORNEY, SOUTHERN DISTRICT OF NEW YORK: Sure.

CUOMO: Preet, what do these calls mean, in light of one of the main questions that were asked by senators, about the VP? Obviously, he says touchy point about whether or not the President knew about his danger.

Here is what defense counsel said about what the President knew about Pence.

(BEGIN VIDEO CLIP)

VAN DER VEEN: The answer is no. At no point was the President informed the Vice President was in any danger. (END VIDEO CLIP)

CUOMO: How are they supposed to accept that in light of Senator Tuberville's account of his phone call, and of course, as the overlay, what they learned about the McCarthy call today?

BHARARA: They can't. They can't. And I think CNN has been covering it all evening. And it's vitally important. Both, I think, as a constitutional matter, as a matter relating to the article of impeachment, and also as a matter of conscience, for the senators.

I mean Mike Pence is not - was not only the Vice President of the United States but was the person who would break ties in the Senate. The Vice President is the one official in the Executive branch, who has an office, in the Senate.

And Donald Trump, whatever you say about the other arguments, in the moments leading up to the Insurrection, it is absolutely clear from the admissions of Senator Tuberville, and from common sense, and knowing what was being reported, on all the networks, at that time, and the - about the 2 o'clock hour, on January 6th, that the place was under siege, and that Michael Pence was in danger.

And Donald Trump didn't care. He didn't care about the life of his own Vice President. That is a powerful argument in favor of holding Donald Trump accountable. And there's no excusing what the lawyer said about it today.

CUOMO: Fair point to the audience. Robert Ray on the show yesterday said he believed that the President was in dereliction of duty because of how he responded to the Insurrection.

Would you have answered the question the way Mr. Van der Veen did, Robert?

ROBERT RAY, FORMER TRUMP IMPEACHMENT DEFENSE ATTORNEY: No. Look, I would have said, "Look, there's no evidence that's been presented with regard to that question."

It's the House Managers' burden to have explored that issue. If they wanted to explore it, they could have explored it in the House of Representatives. They bring the record over to the Senate.

And the question-and-answer session is not designed to essentially have what amounts to extrajudicial statements about what the evidence is. The President has no obligation to come forward and help the House Managers prove their case. That's their responsibility. And they have the burden of proof.

And as I'm sure Preet will point out, I understand that this is not a criminal trial, but it is quasi-criminal in nature. And we still do play by the rules of due process, which means that an article of impeachment is returned by the House.

CUOMO: OK.

RAY: And the House Managers, on behalf of the House, have the burden to prove it.

CUOMO: All right. So Preet, what's the response?

BHARARA: Look, this idea of due process, which we hold sacred, in criminal trials, doesn't have the same kind of application in an impeachment trial.

This Senate trial is for people like - like us, who have - who've tried or overseen trials of cases. There's no judge. There's no voir dire of the jury. You don't require unanimity. There's no special verdict form. There's no appeal. You have jurors, who are meeting with the defense, over their strategy.

[21:25:00]

And so, I understand the rhetorical point about how due process, due process, due process. What matters here is what individual senators think, was a breach of responsibility, and duty, on the part of the President or not. And I hate to say that that's what it boils down to.

We don't even know what the standard of proof is. We don't even know what the elements of the articles are that you have to prove. None of that is the case in a standard court of law.

And I think, in this situation, Senators can take the position that in the absence of, again, I know that the prosecutors, the House Managers have some burden of proof. How high that is? It's not clear. It's not stated anywhere in the law.

But the fact that they're - they're declining to answer the question of what their - their client knew, and what he did, I think is devastating to that side. And you can't make the same argument that you make in a criminal - in a criminal case, that the government just hasn't proven its case.

Some of the proof is in the fact that they had nothing to provide with respect to what Trump did, in those minutes and hours, after the Insurrection started.

CUOMO: The absence of proof, meaning the absence of a record of his action tells you everything you need to know, Robert, about what happened once the Insurrection began. Is that dispositive? Does that make the case that Trump didn't do what he was supposed to do?

RAY: No, because I don't think that you can impeach a president for the failure to act in this whatever three-and-a-half-hour window. I mean, everybody concedes that he ultimately did act.

What you're contending is that it's impeachable, because he delayed for several hours in doing so. And I do think that's subject to condemnation, and I condemned it yesterday. So it's not like I don't understand.

CUOMO: Who concedes he acted, by the way?

RAY: That it's a serious issue. But that's altogether another thing-- CUOMO: Who concedes he acted?

RAY: That's altogether another thing to say that that's--

CUOMO: But Robert?

RAY: --that's impeachable offense.

CUOMO: Robert, who concedes he acted? I'm not conceding it. I'm saying he did nothing.

Pence wound up working with the DoD to get the National Guard there. When Trump was called and asked by his main ally, he mocked him. He did nothing. He sent out a bad tweet. And then he put out a very lukewarm statement, saying that he loved the people attacking the Capitol.

Where do you see him undertaking the duty of the oath?

RAY: Well, he ultimately told them to go home, so that mission was accomplished. I think that should have happened many hours before. And I have said so. And I think that was the dereliction of duty.

But it's another thing altogether to say that out of that, if that's what you're focusing on now that that's an impeachable offense, my - my answer to that is, what's the high crime and misdemeanor that the President committed that warrants his conviction?

CUOMO: OK.

RAY: And be, you know, the sanction of not being--

CUOMO: Got you.

RAY: --able to ever run--

CUOMO: So, let's ask.

RAY: --for public office again.

CUOMO: Preet, what do you have?

BHARARA: That's not what I think the House Managers or I, as an observer, are basing the conclusion of guilt on.

It's part of the whole story. It's part of the context. It's additional proof. It's additional data point, an additional data point that the President of the United States intended for that thing to happen that happened.

And how do you know that? Because he seemed to enjoy it happening. And he didn't try to stop it. And any reasonable decent leader of the country, that we call home, would have done something different.

It's not to say, you know, to parse out that two hours of conduct or omission, and say, that's the basis on which you convict. That's an additional piece of evidence on top of all of the other things that we heard over hours and hours of presentation.

And by the way, I wish that the President's lawyers would do what Rob is doing. I made this point many times in my career.

Some of the most effective arguments I've heard made on the part of defendants had been by smart lawyers, who say, "You know, what? Some of what my client did was not commendable. Some of it was downright bad. It was not a moment of pride for my client, but it's not a crime."

And in this case, you could argue "It's not, it's not impeachable, I don't agree with that." But you would earn some points, I think, with the American public.

I think what people are so angry about in part is not just that they're making a legal defense or a constitutional defense. But they're essentially saying "The President did everything correctly. He did nothing wrong."

CUOMO: Right.

BHARARA: And that, and the fact that Republican senators are saying that by their votes, and being silent, because they're scared and chicken, of losing their jobs, is despicable to a lot of people, including myself.

CUOMO: I understand your Brandenburg argument. We could spend all time, and I don't have it, to deal with whether or not that's the right standard to apply in an impeachment.

But specifically, because it was in play today, their argument, Robert, is "Everybody talks about fighting in politics, even Cuomo." I got thrown in there too, which is always good for my ability to walk the streets.

RAY: I appreciated that.

CUOMO: I'm sure you did!

Why do they just ignore the reality of context? "Fight" does not mean the same thing no matter when it's said or how it said. And here, uniquely, it was amplifying a lie. And it was set at a moment of imminency, where they then went and acted.

Isn't it different? Doesn't context matter to when you say the word "Fight"?

[21:30:00]

RAY: Of course, it does. I mean, I'm not denying that context isn't appropriate evidence for any jury, including a jury of impeachment, to consider. It's entirely appropriate to have made that argument. I think the House Managers made that argument effectively, particularly on day one.

But I mean, as I argued to you last night, I don't think any amount of evidence in that regard, context included, is going to change the fact that they are wed to the article of impeachment charge.

That article charges that those words are what constitutes incitement to Insurrection. And I think that that is inconsistent with Brandenburg. I think it has to be a call to violent or lawless action. And that's not it.

CUOMO: Preet?

RAY: And it's just (OFF-MIKE).

CUOMO: Oh! Go ahead, Robert, keep talking. Check your microphone.

Let me know when you got it back.

You'd have to talk for me to know, Robert.

Oh? Let me get Robert back on.

Preet, while we're waiting for him, he makes the argument on constitutionality in this. "You don't have a high crime and misdemeanor, and it matters. There has to be a crime."

This was argued all the way back in Nixon. The Democrats reject this. Where do you come down on it?

BHARARA: Yes, it doesn't have to be a crime. There are certain things that only the President uniquely can do. If you or I called up--

RAY: Yes.

CUOMO: Back.

BHARARA: --the President of Ukraine and said "Do this or that" as we went through the last time around, it doesn't mean - it doesn't mean anything.

Some good examples have been made by First Amendment lawyers, who ordinarily come on air to talk about how important the First Amendment is, and how expansive we should read the First Amendment, Floyd Abrams and others. And they make the point.

I mean I'd like to know what - what Rob and others think about this. If you have a President of the United States, who goes out in public and, at the podium says, "I have decided to pledge an oath of allegiance to China," and I think it'll be great if this is a Floyd Abrams example, "And I believe that China should invade us, and America will be better for that" that's not a crime, if you said that, or I said that, this protected, unpopular political speech.

I want someone to tell me, a Republican senator or otherwise, that that's not impeachable, no crime committed. If that's the case, then I think we have completely different and wildly divergent views of what it means to take an unfit president out of office.

CUOMO: Robert, you get the hypothetical, what's your response? RAY: I do. I think the closest analogy I could get, I'm not so sure about words. But I do admit of a national security exception to the general rule that you would have to charge a high crime or a misdemeanor and prove that.

I think the only example I can think of happened during the Cuban Missile Crisis. And President Kennedy and Robert Kennedy conferred. And apparently, the conversation was on tape as part of the taping system in the White House.

And generally, the subject matter was their musings about, after the - the Missile Crisis was over, about whether if they had failed to act to remove Russian missiles from Cuba, what that would have meant? And the conclusion they both came to is, and the President apparently said, "I think I would have been impeached." And I think that--

CUOMO: You don't think the national security exception applies to a President that gives immediate rise to an attack of the Capitol where they seek out and try to kill congressmen?

RAY: I mean, look, people can have a reasonable disagreement about that. I appreciate Preet's point. I think the answer has to be no.

CUOMO: How about that Preet? Who knew that you could sic a mob on Congress? A lot of presidents would have gotten a lot more their way, if they knew they could just send a pack of angry dogs over to Congress, and get the guys scared enough to vote their way.

BHARARA: Yes, there are a lot of things that the most powerful person in this country can do, by speech or deed that I guarantee you would cause senators to be galloping towards the chamber to impeach, remove and disqualify.

CUOMO: And that would be one of them.

RAY: I think most of that conduct though would be - would come under the category of malfeasance in office, which the Framers specifically intended not be subject to impeachment and removal from office.

CUOMO: Final point, Preet?

BHARARA: Yes. I hope that hypothetical is never tested. But I say again, it's a political act. It's not a courtroom trial, governed by the rules of evidence, and due process, like we see in federal and state court.

There are certain things we expect a President not to do. And many of those things are not criminal in nature. And I hope for the sake of our country, we never face an example of that in the future.

But this - this blanket idea that something must meet the elements of a federal or state crime, by the way, crimes that were not even enacted into law, back at the Founding, when the impeachment power was given to Congress, it just doesn't fly.

CUOMO: Well, I know this much, Preet and Robert, not to damn you guys to politics, but I think the American people will feel a lot better about the situation, if they heard it being argued out this way. But they're not!

Be well and thank you for the perspective, Gentlemen, both of you.

RAY: And you too.

CUOMO: So, these details about the shouting match that Trump had with McCarthy, in that moment of crisis, the tone, the spite of the former president, why doesn't it matter?

[21:35:00]

Let's bring in a fellow juror to look at the last-minute surprise, as the Trump trial heads towards a verdict probably tomorrow, next.

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CUOMO: We believe the Senate will vote on whether or not to convict as soon as tomorrow afternoon, if House Managers decide not to call witnesses.

Seems unlikely at this point that they will but considering Trump's lawyers have been caught in a major lie, about what Trump knew about when his own VP was in danger, maybe they will call witnesses.

Let's bring in a Democratic Senator and impeachment juror, Senator Jeff Merkley.

Good to see you, Senator.

SEN. JEFF MERKLEY (D-OR): Good to see you, Chris.

CUOMO: You think witnesses are likely?

MERKLEY: I think it's very unlikely. I think they want to wrap this up, be done and they feel they have the votes right now. So, I'd be very surprised.

CUOMO: And the House Managers can't unilaterally move for witnesses?

[21:40:00]

MERKLEY: Well, if they had wanted to do so, they should have done so, when they're presenting their case. So, I wouldn't think that they feel now that there is a rebuttal role. But you never really know exactly how these impeachment trials will play out. They're so rare, so, I couldn't say for sure, but not likely.

CUOMO: As you were looking around the room, the Tuberville call that the defense attorneys tried to dismiss as hearsay, Tuberville then came forward and said "It's not hearsay. It happened exactly as I said it did." He mentioned that the VP was being taken out.

The call with McCarthy, and the depth of the animus from the President, towards a guy, who's his ally, who was asking for help, did any of that seem to make a difference?

MERKLEY: Well, it was hard to read what was going on in the minds of my colleagues. I think their main sense has been they've been looking for an out, and they don't really want to take in information that doesn't fit their argument.

They'd like to think that their President actually cared that the Capitol was being assaulted, actually tried to stop it. But there's no evidence that he did. And this reinforces it.

I mean, when you see that time chart, and you see that when the assault began, he did nothing, absolutely nothing, when you hear their reports of how people around him saw that he was excited that he was happy, he was delighted, and then these two phone calls reinforced the same thing.

He didn't say to Tommy Tuberville, he didn't say, "Oh, my goodness, you're kidding me! The Vice President is being evacuated? What kind of danger are you in? I've got to - I've got to help you all."

No. It was "Tommy, I'm not concerned about that. You know, tell me, tell me how you can slow down the vote." And so, it's really, it really confirms the situation that people close to the President, inside the White House, and closest advisors, we had reports of.

Now we have Kevin McCarthy's report saying, "Mr. President, you must intervene," and the President think "Well, why? These people care about the votes. I like what they're doing." That was the gist of what we've come to understand.

It completes the picture of a President, who incited an insurrection, through his actions, through the big lie, through the feeding the fury of supporters, through organizing it on that day, through sending them to Capitol, though not getting the National Guard out to defend us, and then not responding when the Capitol was attacked.

CUOMO: So, this is not a hard loss on a policy argument. This is not even a hard loss on differing opinions about the President's role in the Russia investigation into interference in the elections.

You guys were in there with people trying to come get you. And now, your colleagues are going to make it OK. How does business as usual, have any chance at happening after they acquit if they do?

MERKLEY: Well, what happens in a - in a Senate is we will have the next issue up, and people will speak too big. People will vote on it.

But we must not forget what's going on here. For the first time, in 200-plus years, the Capitol was assaulted. A President wanted an imperial presidency. He wanted to break all the rules and do what happens in third-world countries, ignore the Constitution, destroy the peaceful transfer of power, assault the Capitol.

And then, these Republican colleagues, who have been elected to, and taken an oath to the Constitution, just want to go forward and say, "Well, our base doesn't believe all that, so we'll ignore it," which is kind of what it comes down to.

They are afraid of their base. Their base is inside the Trump media bubble. All they hear is how wonderful he is. They're scared of that base. They're scared of the mob. And that is a profile in absolute absence of courage.

CUOMO: How personal is this for you? You say that on that day, you saw staffers burst into the chamber, you saw the VP being swept away. What are your memories of that day?

MERKLEY: Well, initially, Chris, I didn't think there was something too major going on, because I've seen many protests in the Senate chamber, where there's a disruption of people in the balcony.

They start screaming. They unfold a banner. They start chanting. They start singing. They link arms. And each time, it's, you know, it's 6 - 10 people, and the Capitol Police come and escort them away.

So, when I first heard the ruckus, outside the door, and I think that's the moment that Officer Goodman was directing that first group into that corridor, where there were other officers, I thought, "Well, you know, there's - there's six people out there, who are - who wanted to create a ruckus, and they're being stopped by the Capitol Police, just like they always are."

And then when the Sergeant of Arms team and some of the folks from McConnell's team burst in and started shutting the place down, it's like, "Whoa! This is completely different."

[21:45:00]

And then because we have smartphones, we started to discover "Oh! There's hundreds of people in here. And they are chanting and screaming and, and calling for death to the Vice President, and this is a very serious, serious thing."

And at that point, it was just incredibly solemn. No, we didn't have any really clear idea of the level of risk. In fact, I must say, in this impeachment hearing, we came to understand how close of call it was.

There were people with arms. There were people a few feet away. Somebody could have come in through one of the second-floor balcony doors, and started shooting people, given the fury, fury of that mob. So, we're very fortunate. It wasn't worse than it was. But look how bad it was. I mean, you have over a 100 police officers

injured, five to seven - well, seven people dead, it's - wow. If the President can't be held accountable for this, after he cultivated this, organized it, directed it, and then celebrated it, I just don't understand it.

CUOMO: Last thing, Senator, you saw the VP getting escorted away, yes?

MERKLEY: Yes.

CUOMO: Did he seem to understand that these people were coming to get him?

MERKLEY: Well, I'll tell you, it happened in a flash. You're talking seconds. And I don't think he knew why he was being escorted away.

When something that is - I'm thinking about Town Halls I've had back in 2009, when you had an angry mob over Obamacare, and you're told that "There is a threat. We're going to tell you and sweep you away," but you don't know what the threat is.

I assume he didn't know at that moment what the threat - what the threat was.

CUOMO: Can you imagine what's going on in his head, listening to the details of how people were so anxious to find him, setting up of gallows outside, and now that he knows that the President was told of where he was, and then after that, the President sent out a tweet attacking him? Can't wait till he tells his story!

MERKLEY: I--

CUOMO: Senator Jeff Merkley?

MERKLEY: Yes.

CUOMO: Imagine!

MERKLEY: Thank you so much, Chris.

CUOMO: I appreciate you as always, Sir, and good luck tomorrow.

MERKLEY: Take care. Thank you.

CUOMO: Now look, as is the Trump way, and just kind of part of the way of these political battles, in general, there's a lot of BS thrown around.

So, let's bring in the Human Lie Detector, to put the facts on the record, before this big vote. May not affect the outcome, but it's about what you know and how you can measure what was done in service to you, tomorrow. Next.

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CUOMO: By the time you get to this third-string defense, and that's where the Trump's defense team is, they're the third batch, you know that these are the guys who agreed to do what Trump wants you to do, and that means lie.

Let's bring in our Fact-Checker-in-Chief, Daniel Dale, what did you see?

DANIEL DALE, CNN REPORTER: Chris, there was a lot of nonsense from these Trump lawyers.

So, one of the things one of the lawyers said was that the first two messages that Trump posed on Twitter, after the incursion on the Capitol began, said to stay peaceful and called for no violence.

In fact, the first messages Trump - the first message Trump posted on Twitter, after the attack began, castigated Mike Pence. That was at 2:24 P.M., after rioters were in the building.

Now, a Trump lawyer also claimed that the timeline of events shows that people did not attend a Trump speech at a nearby park, down the street, from the Capitol, essentially, and then go attack the Capitol.

In fact, the FBI alleges that multiple insurrectionists did do this. There was more than enough time for them to make that happen, and this is ignoring the existence of smartphones, on which others could have listened to the speech, while standing near the Capitol the whole time.

A Trump lawyer also claimed that the Constitution's "Due process" clause applies to this impeachment proceeding. Scholars agree it does not. This is not a criminal trial. It does not apply.

Now, a lawyer ran a misleading video, suggesting that Trump has been Mr. Peacemaker the whole time. It's Democrats who have spoken recklessly, in inflammatory manner, about violence. Trump has merely praised law enforcement and called for peaceful protests.

That's almost misleadingly insulting. It ignores an entire history, a five-year-plus history, of Trump expressing support for a Republican Congressman, who assaulted a journalist, calling for protesters, at his own rallies, to be punched, applauding violence against journalists, this year, during protests in Minneapolis, and on and on and on. Now, a lawyer also made a highly misleading claim, Chris, that this insurrection, this riot, involved extremists of all different stripes, who pre-planned the attack. And he said one of the first people arrested was a leader of Antifa.

Look, we know from copious evidence from the FBI, from video, this was a Trump supporters' insurrection. It was some random hodgepodge of people from the Left and Right.

Now, some participants do have a hard-to-pinpoint political ideology. There was one alleged insurrectionist who used #Antifa, on Twitter, but there was no allegation from the FBI that he was even a member of Antifa, let alone a leader, of this kind of amorphous movement.

Now, a lawyer made a highly disputed claim that Trump did not even know, at any point that Vice President Mike Pence was in danger.

This contradicts the timeline offered by a strong Trump supporter, Alabama Senator Tommy Tuberville, who said that he directly informed Trump, on the phone that Pence had been whisked away by security.

And the lawyer also admitted that Trump knew that of course this was a violent riot at the Capitol. So logic would have it that everyone at the Capitol would have been in danger.

Chris, a Trump lawyer also claimed that there was a dramatic inexplicable drop, this year, in this - in last year's election, in Georgia's absentee ballot rejection rate. That just did not happen.

In fact, a Republican Georgia election official tweeted today that the rejection rate, this year, was essentially identical, 0.15 percent, as it was in the 2018 mid-terms.

And their dishonesty was not even just about the election, not even just about the insurrection, a lawyer also claimed that the clearing of Lafayette Square, this infamous moment, outside the White House, had happened because protesters or rioters had pierced a security wall.

[21:55:00]

That is not the reason that the Square was cleared. We all know the Square was cleared because President Trump wanted to have a photo-op outside a church.

So, on and on and on it went, Chris. It was lie after lie, falsehood after falsehood.

CUOMO: You didn't even include their coming after your boy today, in their defense, suggesting that I was calling for violence in the streets, last summer. I can tell you right now, that is highly false.

Daniel Dale, thank you very. Appreciate you.

DALE: Thank you.

CUOMO: All right, let's take a quick break, and then we'll be right back.

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CUOMO: It's going to be very interesting to see what life is like in Washington, D.C. next week, to see what they do in the aftermath of this acquittal. This is very personal for the men and women down there. And there are going to be hard feelings for a long time.

How will that translate in terms of the disposition towards any kind of collaboration dealing with the pandemic? This is going to be very telling. I know we're exhausted. But we must grind on.

"CNN TONIGHT" on this Friday night begins with the big star, D. Lemon, now.

DON LEMON, CNN HOST, CNN TONIGHT WITH DON LEMON: Keep coming a little bit - boy, you're a second early.

CUOMO: More than enough!