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House Impeachment Managers Walking To The Senate Floor Today; White House Just Released Its 110-Page Trial Brief Laying Out Their Defense; Trump's Legal Team Argues Impeachment Process Is A Charade. Aired 2-2:30p ET

Aired January 20, 2020 - 14:00   ET

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

BRIANNA KEILAR, CNN HOST: That is it for me. Our coverage now continues with Dana Bash on "NEWSROOM" right now.

DANA BASH, CNN HOST: Hello, I'm Dana Bash, in for Brooke Baldwin. Welcome to a special Martin Luther King Jr. holiday edition of CNN NEWSROOM.

We're going to talk later in this program about Dr. King's life and his legacy. But first, this time tomorrow, a seminal event in American history: The impeachment trial of a U.S. President.

You're looking at a video of the House Impeachment Managers walking to the Senate floor today. They're going to check it out to see how it feels to be there before they start tomorrow.

Over at the White House, they just released its 110-page trial brief laying out the defense that they're going to give to the 100 senators who are going to sit in the jury.

It doesn't really deny actions that the House impeached him for; instead, it lays out an argument that none of what he did is impeachable.

The President's team calls the charges of abuse of power and obstruction of Congress a "charade," and Trump's defense will call for a "swift acquittal." House Democrats have until noon tomorrow to respond, but a short time ago, they did respond to a shorter White House brief filed on Saturday citing many of the same assertions.

The Democrats call it "chilling" that the President says the Senate cannot remove him even if the House proves every claim in the Articles of Impeachment.

I want to get straight to the White House. CNN White House Correspondent, Kaitlan Collins is there joining me now, and Kaitlan, what does this brief tell us about how the Trump legal team will be arguing in the days ahead?

KAITLAN COLLINS, CNN WHITE HOUSE CORRESPONDENT: Well, it's basically a preview of what you're going to hear, those recently hired attorneys from last week that the White House announced to say on the Senate floor this week as they are trying to appeal to these senators, and what they make clear in the beginning of this brief, all 170 pages of it that we've been sorting through is they want this -- they believe these Articles of Impeachment are flawed.

They don't think they're constitutional, and they not only obviously want the President acquitted, they want them to acquit him pretty quickly.

Now, of course, it's still a question of how long this trial is going to take, and the White House does not know. But they make the argument in here that they believe this is the President's first chance to really defend himself. They said that they did not have that chance in the House.

Though, of course, they were the ones who did not send witnesses over and did not turn over documents. Of course, that House Democrats wanted to see people they wanted to hear from, until as they were making this argument against these Articles of Impeachment, essentially saying you can't impeach a President because these two Articles of Impeachment are flawed, because they don't include a violation of a crime.

Now, that's an argument you've been hearing from the White House for the last several days. You're even hearing it from Alan Dershowitz, one of the President's new attorneys, though, of course, he said something very different in 1998, as the videos were playing yesterday.

So that's going to be a big question of how that plays out, how the senators respond to that argument. But also, they're defending the President's conduct here when it comes to Ukraine, saying that he was in his right to ask about the Biden-Burisma investigation, and they say he was in his right to ask about possible Ukraine meddling in the election, which of course, the President's own former Russia adviser said that is an unsubstantiated, baseless theory that is being pushed likely by the Russians.

So they're not only going to attack these Articles of Impeachment, Dana, they're also going to defend the President's conduct on Ukraine, and you're going to start seeing that play out as soon as tomorrow.

BASH: Kaitlan, thank you so much for that reporting, and joining me here in the studio to discuss it, CNN Legal Analyst Elie Honig, a former Federal and state prosecutor. Also here, CNN Contributor, Frank Bruni, a columnist with "The New York Times."

Okay, so this is it. It's rather thick. They also sent along an executive summary, which makes the arguments that they were going to put forward this week and in a more cogent way.

And let's just start with the first, the notion that they are arguing that the House did not actually back up the claim that they made in the first Article of Impeachment, which is that the President abused power.

Here's in part of what the White House lawyers argue. "House Democrats have falsely charged that the President supposedly conditioned military aid or a presidential meeting on Ukraine's announcing a specific investigation. House Democrats do not have a single witness who claims based on direct knowledge ..." that's the key direct knowledge," ... that the President ever actually imposed such a condition."

FRANK BRUNI, CNN CONTRIBUTOR: Well, the House Democrats presented many witnesses with indirect knowledge and witness after witness with indirect knowledge, said the same thing and had a piece of the same puzzle and you can put those pieces together and see if they fit so neatly if everybody's telling the same story, we don't need a direct witness to know what went on.

[14:05:03]

BRUNI: But the real irony here is to the extent that there's not a direct witness, to the extent there's no one who can say I heard from the President's mouth X, Y & Z it's because the White House has stonewalled Congress.

So it's sort of a Catch 22 here for Democrats. You can't have a smoking gun if the White House has utterly refused across the board from the beginning to, you know, they won't provide documents, they won't provide witnesses.

But everybody that the House Democrats could get to is telling the same story. They have a piece of the same story. And many, many a person in our judicial system is convicted on that kind of kit.

BASH: And so -- and Elie, as you jump in here, one of the things we were talking about as we were coming into the show is on the one hand, the White House lawyers argue the House didn't really prove the case that they say that they proved.

On the other hand, they're saying even if it is true that the President did what they're accusing me of doing, so what? If they're back to the so what, get over it.

ELIE HONIG, CNN LEGAL ANALYST: Yes, it's tough to even reconcile those two arguments. But I mean, the base hypocrisy here, as Frank said is they're blocking access to Bolton, Mulvaney, Pompeo -- the people who would be firsthand witnesses.

Also, we're allowed to use commonsense here. The Senate is allowed to use commonsense, and I think it is established beyond any question, one that Donald Trump asked Ukraine to investigate the Biden's and Burisma, that's on tape and two, the aid was withheld. Those are just two facts.

And so the question is, were they conditioned or not? And the White House argues in this brief, no, there was no conditionality. So what was it then? A cosmic coincidence that these two things happened unrelated to one another?

BRUNI: A hundred percent, but also there's testimony, there's evidence that people were also told throughout government, don't speak of this. Don't say anything about this. Why if not for the connective tissue, you just -- HONIG: Yes, and this goes to some of the new evidence we've just seen

within the last couple weeks. The e-mails that came out recently say this is sensitive, right? What's sensitive? A clear direction from the President. It came from the President.

BASH: Well, to your point about the fact that they're saying, you know, okay, they didn't prove it, and it's okay even if he did it.

I just want to read part of the brief on that point. These are, again, the White House lawyers speaking, "The charges in Article 1 are further flawed because they rest in the mistaken premise that it would have been illegitimate for the President to mention President Zelensky either possible Ukraine interference in the 2016 election or an incident in which then even Vice President Biden had forced the dismissal of a Ukrainian prosecutor."

So just to put that in English, what they're saying is everything the President said to the Ukrainian leader is totally legit.

BRUNI: It's not totally legit, if it's connected, you know, to the withholding of aid. And if you read the original transcript, the reconstructed transcript, whatever you want to call it, there's the reference there to a favor.

We know that right after that happened, aid was held up. We know people were told not to talk about the fact that the aid was being withheld or investigate why the aid was being withheld.

When you add all of that together, so sure they could bring up those things in a vacuum, if anyone with a brain believe that Donald Trump was truly concerned about corruption in Ukraine, and there's nothing in the President's past that leads us to believe that that would have been a legitimate concern. Right?

So when you've used, as Elie said, commonsense, the only conclusion you can arrive at is that all of this is connected to something that is not legitimate, which is leveraging congressionally authorized aid for a personal political favor.

HONIG: The White House in the brief posit a policy difference. They say Democrats just didn't like the way Donald Trump was conducting foreign policy, and this was legitimate foreign policy.

The problem is, it simply was not. I mean, you have to ask the question rhetorically, or maybe in person to the Senate, why Ukraine? Why no focus on any other country? Why 2019? What was wrong with 2018 and 2017? Right? No problems then and why the focus on this specific case? It just happened to be involving the family of a person who was about to run against him for President -- it just --

If in fact, Donald Trump was really out there trying to root out corruption in all of the many countries we give foreign aid to, that would be a totally different story, but that's fiction. That's not the way it happened.

BRUNI: As you said, commonsense, you have to use commonsense. BASH: So let's talk about the General Accountability Office, and the

reason I'm bringing up the alphabet soup of Washington, an important agency is because they actually said that the President did violate the law in withholding the aid, for whatever reason, because it is not his job. It's Congress's job -- that is in the Constitution -- to approve the aid.

BRUNI: And we've been given -- and I haven't heard any remotely believable or even adequate explanation for why that aid was being withheld for as long as it was, as we now know against the law.

HONIG: So this opinion should carry some weight because the G.A.O., just think of like a super uptight, super by the book accountant. They're not political. They're just sticklers for the details and they concluded it was illegal. Congress allocated this money to Ukraine. The President illegally held it back and so, not a crime, but it's a violation of law, non-criminal law.

[14:10:05]

BRUNI: There's something else that I found really interesting in this White House response, which is the extremeness of it, right? This is so quintessentially Trumpian. They're not just saying that what happened doesn't quite rise to the level of impeachment. They're not just saying they didn't quite prove their case.

They're using words like this whole process perverts the system, degrades -- it sounds like they're talking about child porn or something. I mean, but this is the way Trump operates. He says, if I deny it all the way over here, maybe people will believe this much.

BASH: They took it to a level throughout all of this for sure. Elie, I want to go back to the original argument and the crux of the argument in this 110-page brief that the President's lawyers are making, which is that this is not a violation of criminal law, and that what they're arguing the framers had in mind on impeachment was that a President has to violate the law, not just "abuse power."

Adam Schiff, who is going to be one of the managers who was the chief investigator in this responded to that yesterday. Listen to how he did it.

(BEGIN VIDEO CLIP)

REP. ADAM SCHIFF (D-CA): Abuse of power is at the center of what the framers intended an impeachable offense to be. The logic of that absurdist position that's being now adopted by the President is he could give away the State of Alaska, he could withhold execution of sanctions on Russia for interfering in the last election to induce or coerce Russia to interfere in the next one.

(END VIDEO CLIP)

BASH: Elie, your response?

HONIG: Yes. Let me give you two people who disagree with the White House on this idea that it's only impeachable if it's a crime. Alexander Hamilton back in the 1700s and Alan Dershowitz in 1998-1999. Right? They're both on record saying the whole point here is abuse of power.

Now, there's a fair question to be asked strategically, should Democrats have charged a crime here? Bribery or extortion, in addition to abuse of power? But our history, our precedent, our law make entirely clear you do not need a crime in order to impeach.

Just one other little historical footnote, various Federal officials have been impeached over the years. Presidents, Judges for things that are not crimes, including malfeasance, incompetency, favoritism and intoxication.

So the precedent is entirely clear. This is just the fiction of an argument.

BASH: Okay, we have a lot more to talk about. We're going to take a quick break. We are still reading through this. We have a couple of minutes during the commercial break to do it.

We're going to talk also more when we come back about what Elie just mentioned, Alan Dershowitz, what he is saying now versus what he said back in 1998.

We're also going to take you behind the scenes to figure out just how the Senate trial is going to look including rules that could alter what the public sees.

Plus 2020 Democrats sprinting to the finish line in Iowa ahead of the nation's first caucuses, their show of unity on this MLK Day.

(COMMERCIAL BREAK)

[14:17:05]

BASH: Welcome back, and back to our top story. The day before the impeachment trial gets fully underway, the White House has just released its extensive brief, laying out its defense arguments and saying the President did nothing wrong and the Senate should acquit him immediately.

Back with Frank Bruni and Elie Hoenig. Let's go to what you were mentioning, Elie, before the break, which is Alan Dershowitz. Now a member of the legal team of counsel, it depends on how you ask or who you ask exactly what his role is, but he has a role, and he's defending the President right now.

And the crux of the White House counsel's argument is that what the House charged him with is not a crime, therefore should not be impeached. In 1998, he sounds like he is saying a very different tune. Let's listen.

(BEGIN VIDEO CLIP)

ALAN DERSHOWITZ, ATTORNEY TO TRUMP IMPEACHMENT DEFENSE TEAM: I will be paraphrasing the successful argument made by Justice Benjamin Curtis in the trial of Andrew Johnson back in the 1860s, where he argued that the framers intended for impeachable conduct only to be criminal-like conduct or conduct that is prohibited by the criminal law.

DERSHOWITZ (IN AUGUST 24, 1998): So it certainly doesn't have to be a crime. If you have somebody who completely corrupts the Office of President and who abuses trust, and who poses great danger to our liberty, you don't need a technical crime.

(END VIDEO CLIP)

BASH: Now, Dershowitz just tweeted trying to explain the difference. I'm not a Harvard trade lawyer, but I don't think I need to be to understand that what he is trying to do is twisting himself into many, many legal pretzels. Do you agree? You are a trained lawyer.

HONIG: This is a logical and legal pretzel. I've been trying to puzzle through the tweet, but he's trying to somehow thread the needle between what he calls a technical crime and criminal-like conduct.

What the difference is or what the daylight is in between those two, other than 20 years have passed, and now he's on the opposite side of things? I have no idea. And then he says, or it must be conduct akin to treason and bribery. I mean, I think bribery is pretty akin to bribery.

So he is trying. That's what -- look, lawyers do this sometimes. You get caught in a contradiction, you try to find some very fine distinction that just does not stand up the logic or common sense in order to explain it.

But I'm not buying it. I don't think any normal human being is buying it either.

BRUNI: Well, he is in some ways -- I mean, he may not be being true to his own argument, but he is being utterly true to Alan Dershowitz.

No, I mean, then and now, if you show him the contrarian position, he'll take it. And whether we're talking about Simpson or von Bulow, or Epstein or Donald Trump, you show him someone of questionable character and you show him a fact pattern that looks stacked against that person, and he will dive in and he will say, well, wait a second, maybe not.

And you could argue that sort of the essence of being a defense attorney, right? I mean, there's a weird --

BASH: That is true.

BRUNI: There's a weird integrity to that.

BASH: In fairness, that is true.

BRUNI: There is a weird integrity to that. BASH: I understand. Okay, let's talk about Article 2, about the

second Article of Impeachment, and that is that the President obstructed Congress.

[14:20:05]

BASH: Back to what the White House counsel said in their brief, they argue that that's not a thing. They argue it and that's in layman's terms. Let me tell you what they said in legalese. "House Democrats' 'obstruction of Congress' claim is frivolous and dangerous. House Democrats proposed removing the President from office because he asserted legal rights and privileges of the Executive Branch against defective subpoenas based on advice from the Department of Justice." You kind of agree with that.

HONIG: Yes, I think this one has some teeth actually. Because just to recap, so the House served a whole bunch of subpoenas. Donald Trump blocked them all and said, we're asserting executive privilege on them all.

The Democrats then didn't take any of them to court except Don McGahn, which was really part of the Mueller and not this.

BASH: That's a separate issue.

HONIG: So the Democrats never actually went to court and challenged it. And what the White House is saying here is we have the right and they do have the right to assert privileges including executive privilege. That's a real thing, executive privilege. They didn't make that up.

They made up this absolutely immunity thing that they've used other times, and they're saying we've never even had a chance to go to court. So how can it be something you would remove us for?

I think there's some legitimacy there. Now, the response is, this was a blanket denial across the board that's really questionable to me.

BASH: Right, and as you answer, Adam Schiff tweeted about this. No, Mr. President, we did ask John Bolton to testify, you ordered him not to and blocked others like Mick Mulvaney. That is true. But it is also true that they decided not to go to court.

BRUNI: Yes, and it's also true that we've never decided sort of through the years exactly what the boundaries of executive privilege should be.

I think it's been sort of a little puzzling from the beginning that when they boiled this down to just two Articles, one was obstruction of Congress, because we're here talking about the legalities of all of this, but a lot of this is being adjudicated in the court of public opinion.

We're marching toward a foregone conclusion and a lot of what's going on in the Senate trial that's about to begin is about 2020, and it's about what voters will ultimately decide and I think obstruction of Congress is a very difficult concept and even phrase for a lot of voters to get their heads around.

BASH: Very well said. Thank you both for helping digest this document. Appreciate it. Frank and Elie, thank you.

And what will the Senate impeachment trial look like once senators agree on ground rules. Our next guest served as Senate Sergeant-at- Arms during President Clinton's impeachment trial. We'll ask him.

And more on our breaking news. President Trump's defense team will go into tomorrow's impeachment trial arguing the whole thing is a charade. We'll be right back.

(COMMERCIAL BREAK)

[14:27:05]

BASH: Welcome back to a special holiday edition of CNN NEWSROOM. I'm Dana Bash, in for Brooke Baldwin.

Barely 24 hours until the Senate impeachment trial gets underway and the President's legal team just submitted to the Senate its brief laying out their defense for Donald J. Trump.

Now, Trump's lawyers argue that he did not violate the law and therefore should never have been impeached, but before we hear those arguments and those from the House Democrats who are going to be prosecuting the case for impeachment in the Senate chamber, senators are going to vote on a resolution laying out how the trial is actually going to be conducted. That happens tomorrow.

Now behind the scenes helping make sure the impeachment trial stays on track is the Senate Sergeant-at-Arms. And my next guest was the Senate Sergeant-at-Arms 21 years ago, during then President Clinton's impeachment trial, James Ziglar is here. Thank you so much for coming on today.

First, we have a clip of you announcing what the trial rules were back then. Take a listen.

(BEGIN VIDEO CLIP)

JAMES ZIGLAR, THEN SENATE SERGEANT-AT-ARMS IN CLINTON IMPEACHMENT TRIAL: Hear ye, hear ye, hear ye. All persons are commanded to keep silent on pain of imprisonment.

(END VIDEO CLIP)

BASH: We heard similar almost actually exact last week, and just more broadly, all senators are required to be quiet, no talking to one another, no cell phones, which maybe was less of an issue back then, but not even any reading materials that are separate from what they're going to be hearing about in the trial. How hard was that, and is that going to be to enforce especially given where we are with the political atmosphere?

ZIGLAR: Well, certainly during the Clinton impeachment trial, it was not hard to enforce. We had a hundred senators, as you may recall, who voted for the resolution setting up the process. And they all took it very seriously, some somewhat less than others.

But I never really had to do anything in terms of enforcing the silence issue or bringing in documents or whatever. They all took it very seriously and were very attentive quite frankly.

BASH: Have you been in touch with the current sergeant-at-arms?

ZIGLAR: I don't know.

BASH: Go ahead, I'm sorry.

ZIGLAR: Sure, yes. I've talked to Mike several times over the last month or so just about, you know, the process and what we did and how we handled certain things.

I didn't -- I haven't talked to him specifically about enforcing the rules with respect to the senators' conduct, but I think he is a pretty smart guy. He'll figure that one out.

BASH: Yes. Well this is also going to be the first time.

[14:30:10]