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New OMB Documents Released; Impeachment Trial Opening Arguments Today; Trump Comments about Bolton Testimony; Sen. Sheldon Whitehouse (D-RI) is Interviewed about Impeachment; Mitch McConnell's Power. Aired 9:30-10a

Aired January 22, 2020 - 09:30   ET

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

[09:30:00]

JIM SCHULTZ, FORMER TRUMP WHITE HOUSE LAWYER: About the work that they have right now because the economy is so good.

GUY SMITH, SPECIAL ADVISER TO PRESIDENT CLINTON DURING IMPEACHMENT: Dude (ph), extorting a federal -- a foreign government to help with a domestic election is a crime. I mean, it's a crime.

SCHULTZ: Did you just say extortion too? You're just -- you're just as bad as Schiff and Nadler.

SMITH: It is extortion. Yes, well --

SCHULTZ: You're making up crimes that are not even charged here.

SMITH: This is -- you're seeing a wonderful -- you're a -- Jim, you're the greatest gaslighter on the air at this moment.

POPPY HARLOW, CNN ANCHOR: We'll have you both back, how about that?

Thank you.

Guy Smith, Jim Schultz.

I think you -- I think you just -- I think you just called him "dude."

SMITH: I did.

HARLOW: Seems like you guys would be -- would be friends off the air.

OK, we have a lot ahead.

JIM SCIUTTO, CNN ANCHOR: New overnight, the White House Budget Office released hundreds of redacted documents about the freezing of Ukraine military assistance. We're going to tell you what those documents reveal, and that's next.

(COMMERCIAL BREAK)

[09:35:05] SCIUTTO: This morning, we're learning more from the trove of White House documents that just became public.

HARLOW: Yes, they reveal how White House Budget officials laid the groundwork to freeze all of that military aid to Ukraine up to the night before the president's call with Zelensky. That, of course, the Ukrainian president on the 25th of July.

Let's go straight to our Jessica Schneider for more.

I mean the timing matters a lot here and also what these documents say.

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Yes, really, this is brand-new information, Poppy and Jim, and it reveals the plans they seemed to be in the works to freeze this Ukraine aid. even before President Trump talked to Ukrainian President Zelensky on July 25th. So take you to the night before, July 24th. That's when we're learning that OMB officials shared a Ukraine prep memo. This was -- they shared this with a top official at OMB, Michael Duffey. And we know from other e-mails that have been revealed that Duffey played a key role in ultimately freezing this aid, saying in one e-mail that it was a clear directive from the president.

So at that point, we know that another OMB official wrote to Michael Duffey that night, Paul Denaro (ph), and he said this. He said, we will be standing by to answer any questions that you have and are happy to schedule time to discuss if you'd like.

Now, it was the same time, that night before on July 24th, that the General Counsel's Office was preparing a footnote for budget officials. This is a footnote that's actually used as a device by OMB to freeze this funding.

So then you go to 9:00 a.m. on July 25th. Again, just before the call. And Michael Duffey asked career official Mark Sandy about the footnote in Sandy's response, and he asks to be copied on the e-mail to the Department of Defense, which seems to be a reference to the next step in freezing these funds, which is notifying the Defense Department.

And you can see this really bio of Mark Sandy. He's a career official. And we heard from him during the House hearings.

And while all of this was happening, we're also getting word that lawmakers on Capitol Hill were getting very concerned about this. We had previously known that Senator Rob Portman was very vocal, expressing concern about the hold-up. But now with some of these newly revealed e-mails, we're also seeing other lawmakers, in particular the chief of staff for Congressman Mac Thornberry, he's the top Republican on the House Armed Services Committee. That chief of staff actually e- mailed an OMB official on August 22nd asking about the hold-up and he wrote this. He said, I heard today that OMB has put a pause on expending funds authorized for Ukraine security assistance. Is there someone there that I can talk to understand why?

So, really, Jim and Poppy, all of these latest documents, they're shedding even more light on the process behind the freezing of the aid, the fact that all of this seemed to be in the works before that July 25th phone call with the Ukrainian President Zelensky. And, of course, it comes on the exact same day that we're starting the Senate trial here where Democrats continue to push for more documents, more witnesses on the record. So this just adds to this trove of documents that we're seeing continuing to drip, drip, drip out here with this trial impending.

Guys.

SCIUTTO: Well, what's key that is it says the direction came from the White House. It indicates that. But also, here's another Republican who saw this delay and said, what's happening here? Why?

HARLOW: Yes, right.

SCIUTTO: It was bipartisan concern.

HARLOW: Jess --

SCHNEIDER: It was. There was a lot of concern on Capitol Hill, that's for sure.

HARLOW: Thanks for the important reporting, Jess, we appreciate it.

Up next, a juror in the president's Senate trial will join us. Democratic Senator Sheldon Whitehouse is here.

(COMMERCIAL BREAK)

[09:43:09]

HARLOW: All right, so we're just a few hours away from the opening arguments in the president's impeachment trial after a fiery debate over the rules stretched into the wee hours of the morning.

SCIUTTO: Democrats lost nearly a dozen votes along party lines as they tried to subpoena witnesses and documents.

Lauren Fox joins us now from Capitol Hill.

So, Lauren, Republicans clearly acknowledging they don't have the votes for a vote of dismissal at this point. Where do those middle of the road Republicans stand on other questions going forward?

LAUREN FOX, CNN CONGRESSIONAL REPORTER: Well, essentially there was a deadline this morning, Jim, for each side, both the Democrats and the president's counsel, to make it clear if they plan to offer any motions in today's trial. We now know that they will not file any motions, including a motion to dismiss.

Here's the reason why. Republican leadership had been discouraging them from offering a motion to dismiss this case outright, in part because they knew that the votes weren't there. Essentially, why do you want to dismiss a case that hasn't even gotten started yet, and they knew that there would not be the Republican votes to actually end this trial, really, before it even begins.

So what can you expect to see today? Well, at 1:00 this thing all kicks off once again. You have the chief justice, John Roberts, presiding over the Senate trial. You'll also start to see the House managers make their case at 1:00. And because they don't have to deal with any other motions, that will probably start shortly after 1:00.

They will have three days to make their case. Each day likely will be spread out over an eight-hour period, plus whatever breaks senators choose to take. So you can expect this is going to be another long day. Not quite as long as yesterday, but perhaps into 9:00, 10:00, 11:00 at night tonight depending on how long those breaks are.

Then they will make their case for three days. You will start to hear from the White House's lawyers on Saturday. They will then have Saturday, Monday and Tuesday to make their case because, remember, this trial is going six days a week, including one day of the weekend.

[09:45:05]

So that means senators will be in Washington and, once again, will be in their chairs, supposedly not talking, supposedly not passing notes, although we saw that yesterday their ability to really listen started to devolve a little bit as the trial went on, Jim and Poppy.

SCIUTTO: Yes, there were some sleepers caught by witnesses in the chamber.

Lauren Fox on The Hill, thanks very much.

HARLOW: You never do that on this set.

SCIUTTO: No.

President Trump, while at the World Economic Forum in Davos, Switzerland, asked if he wants to see his former national security adviser John Bolton testify in his impeachment trial. He had an interesting answer.

HARLOW: He definitely did.

Joining us now is our Jeremy Diamond. He is live for us.

Jeremy, you're still in Davos, Switzerland. It -- I was sort of surprised and a little confused by the president's answer on Bolton. What do you make of it?

JEREMY DIAMOND, CNN WHITE HOUSE CORRESPONDENT: You know, it was interesting because we heard the president initially kind of rehash some of what he has previously said about John Bolton. He talked about the fact that he's the national -- he was the national security adviser, there are national security concerns related to his testimony, sharing thoughts on world leaders. But he also talked about something else, and that was his personal relationship with John Bolton and the fact that John Bolton didn't exactly leave the White House on good terms. (BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I would rather go the long way. I would rather interview Bolton. I would rather interview a lot of people. The problem with John is that it's a national security problem.

If you think about it, John, he knows some of my thoughts. He knows what I think about leaders. What happens if he reveals what I think about a certain leader and it's not very positive and that I have to deal on behalf of the country? It's going to be very hard. It's going to make the job very hard. He knows other things. And I don't know if we left on the best of terms. I would say probably not.

(END VIDEO CLIP)

DIAMOND: And there's that last part, I don't know that we left on the best of terms, suggesting that it's not just about executive privilege, national security protocols or concern for future presidents, it's all because the president is concerned, perhaps, that John Bolton has hard feelings toward him. And so that was interesting to see.

Look, the president made a lot of other remarks about the impeachment process going on, continuing to rail against it as a hoax. And a particularly striking moment, I thought, especially being in the room there, was to see the president using pretty tough language, talking about the House Democratic managers, Adam Schiff and Jerry Nadler. He talked about Jerry Nadler, calling him a sleazebag and he called Schiff corrupt, saying that he would love to look in these manager's corrupt faces on the floor of the Senate.

It's particularly striking, not just because of the language used, but because it comes after the chief justice, John Roberts, admonished both the president's legal team and Democratic House managers for the language and urged them to go towards more civil discourse. Clearly the president, though, is not taking that note.

Jim. Poppy.

HARLOW: Clearly.

Jeremy, thank you.

SCIUTTO: Let's speak now with one of the trial's jurors. He is Senator Sheldon Whitehouse of Rhode Island.

Sheldon, we -- Senator, we appreciate you taking the time this morning.

SEN. SHELDON WHITEHOUSE (D-RI): Good to be with you, and good morning.

SCIUTTO: So as you watched the series of amendments fall by a party line vote, only one Republican going on one of the lesser votes later in the evening. Does this tell you that Democrats really just don't have any leverage in the Senate on these key issues, especially with still an open question now as to whether witnesses will be called?

WHITEHOUSE: Well, the Senate in this matter operates by a majority. And the Republicans have the majority. And that's a fact we have to live with.

The problem for the Republicans is that the American public is the ultimate judge over whether they're using or abusing their majority power. And I think last night what we saw was an abuse of their majority power. It is a very distinct aberration in the long tradition of American law to keep out evidence that is not excludable under any legal theory and that you know is sitting there. In fact, it's actually in boxes in some of these agencies awaiting delivery but for the president's desire that it be blocked.

So the peculiarity of what they did, I hope, is something that the American public is paying attention to. This isn't the way the system is supposed to work.

HARLOW: Senator, we saw Susan Collins late last night in one -- at one time, one out of 11 different moves here, vote with the Democrats on one of the 11 amendments put forward by Senate Minority Leader Chuck Schumer. And then her office put out a statement that seemed pretty typical until the last line. And here's what they wrote. Quote, she says, it is likely that I would support a motion to subpoena witnesses at that point in the trial just as I did in '99. The language is different than she's used. Now she's saying it is likely. Do you sense a shift here?

WHITEHOUSE: Well, Mitch McConnell is a master of Senate tactics.

[09:50:01]

And one of his Senate tactics is what we call the hall pass, which is when he gives a few of his Republicans permission to vote against him, but never in sufficient numbers to make any difference.

HARLOW: So she got a hall pass?

WHITEHOUSE: So, on balance, there's still a phalanx of centurions marching in lock-step under Mitch's command.

SCIUTTO: It's CNN's reporting, speaking to that, that McConnell is arguing behind the scenes that to call witnesses would be a constitutional issue, that it would somehow break the separation of responsibilities between the House and the Senate.

I'm curious what your response is to that argument, but also what would Democrats do if that holds, right, and that this is just a hall pass for Collins, but you don't get the four Republicans you would need to call a witness?

WHITEHOUSE: Well, you've got to remember, the president's goal here is to have as little evidence as possible before the Senate and to block as much evidence as possible from the Senate and from the American people, and they're accomplishing on that goal very, very well. But to say that there's anything peculiar about having witnesses in

the Senate ignores both the history of virtually every impeachment that's ever been held and of the basic principle of American law that trials are where you consider evidence and witnesses.

SCIUTTO: Right. I'm just curious what you thought if that happens?

WHITEHOUSE: So it's very hard to make that stand up.

Huh?

SCIUTTO: I'm just curious what Democrats do if they don't have the votes? They just wave the white flag and say that's all we've got?

WHITEHOUSE: No, I think at that point the reversion is to the ultimate jury, which is the American public, to hold the Republicans to account for basically having fixed a legal proceeding in a manner that is unprecedented in American legal history.

HARLOW: Senator, do you think that it is worth it for Democrats politically but also for the American public to hear from witnesses like John Bolton and Mick Mulvaney and Duffey if it means that the White House calls Joe Biden and Hunter Biden, maybe tries to call Adam Schiff, is that worthwhile?

WHITEHOUSE: Remains to be seen. I think that if that were to transpire, it would become quickly evident that Bolton and Mulvaney and others were direct, percipient witnesses to the gravamen of this charge against the president and that Hunter Biden and/or Joe Biden would be mere sideshows whose testimony would properly be stricken as neither relevant nor material in any regular proceeding.

So if the Republicans wanted to dress this up that way, I think that it would be a mistake on their part. But, again, they're in the majority. And if they wish to do that, they can do that. I just don't think it ends well for them to have clearly irrelevant witnesses dragged in for political purposes.

SCIUTTO: Right.

As we speak even, new evidence is coming out as this happened a number of times now since the end of the House impeachment inquiry. This particular new evidence, new e-mails showing that the White House Budget Office laid the groundwork for freezing this Ukraine military assistance the day before the Trump/Zelensky phone call here, but also crucially shows a direct tie to the White House here, that the direction was coming from the White House.

I'm curious if this evidence, like the rest of evidence, gets blocked in the Senate, what do Democrats do with that after the fact? Do they proceed? Does the investigation proceed?

WHITEHOUSE: You see that's the -- that's the -- that's the peril here for our Republican friends. That's what is so strange about preventing the Senate from seeing known evidence. We know it's there and we know where it is and we know how to go get it. What the Republicans also know is that that is likely to come out sooner or later. Indeed much of it is coming out now.

And so they're not going to be in a position to say, oh, gosh, we never knew that evidence was there. What a pity that we didn't have the chance to consider this.

So, obviously, investigation and oversight of this will continue. Obviously people like Bolton will write their books. Obviously press interest will bring more things to light. And very obviously this will all be ultimately in history's eye. So any Republican senator looking at history's eye is going to be in a very awkward position voting against hearing evidence that they know is there and that, as your question suggests, they know is going to come out sooner or later.

HARLOW: Senator, given Alan Dershowitz' 180 here and arguing on behalf of the president, the constitutional issues, and he now believes that, you know, you need a crime, a spelled-out crime under the criminal code to impeach, he didn't think that in '98-'99, but given that, looking back, would it have been prudent for your fellow Democrats in the House to include bribery, for example, as an article of impeachment?

WHITEHOUSE: I don't want to second guess them on that.

[09:55:00]

I think what everybody in the Senate knows is that if you look at the conduct that is charged in the abuse of power article, the conduct is solicitation of a bribe as that term is defined under federal criminal law. The fake investigation is a thing of value. It was solicited by the president. It is embedded in that article.

Ditto the abuse of the obstruction of Congress count. Actually obstruction of justice has a special specific law for the obstruction of congressional proceedings. So embedded very clearly within both of the articles of impeachment is a clear criminal law violation.

HARLOW: Senator Sheldon Whitehouse, clearly you have a busy, big, long day ahead, so thanks for spending some of your morning --

WHITEHOUSE: Another long day. Thanks for having me.

HARLOW: Thanks for spending some of your morning with us.

Joining us now, CNN presidential historian, Jeffrey Engel. He is the co-author of "Impeachment: An American History."

So good to have you.

And let's just begin with the power of the majority leader.

What did yesterday and what will today likely show us about the power that Mitch McConnell wields?

JEFFREY ENGEL, CNN PRESIDENTIAL HISTORIAN: You know, I think that Mitch McConnell is now moving up the ranks perhaps even to the very top of our list of powerful Senate majority leaders. You know, I think, in fact, when we write the history of this period, I'm starting to think that we're going to start with Mitch McConnell as opposed to Donald Trump.

You know, let me compare him in a sense to Lyndon Johnson. Johnson was a senator, of course, in the '50s and he was the -- considered the master of the Senate in Robert Caro's great phrase. But, to be honest, there wasn't as much legislative productivity from Johnson's rule in the Senate as there was an iron-clad grasp upon his party. He was able to get his party to do exactly what he wanted at any particular time.

And I think we're seeing that with Senator McConnell now as well, that there's not a whole lot of productivity coming out legislatively from his time ruling the Senate, but the fact that we have Republican senators who, with only one exception out of 11 amendments, was willing -- were willing to go lock-step with him in every way down the line shows, I think, that he really controls this Senate I think as much as any Senate majority leader ever has.

SCIUTTO: Yes, Caro's book is great. I mean telling the story of how he used that power to get civil rights legislation passed. But McConnell now is arguing, you know, having won those initial votes on new evidence, et cetera, across the board that on the question of witnesses that this is a separation of power issue. And that's what he's telling other Republican senators, perhaps wobbly Republican senators, don't vote this now, you know, it will cause huge constitutional concerns going forward. As an historian, is that true? Is that accurate?

ENGEL: It's accurate, but in the exact opposite way that the senator is suggesting. The fact that he's working essentially as he's admitted in cooperation with the White House really diminishes the idea that the legislature is a separate but equal body with the presidency.

I think the fact that the Constitution gives the House the sole right to impeach and the Senate the sole right to try tells us that the Senate can basically ask for anything it wants, should be able to get anything it wants, and should not have any circumstance where a president refuses its inquiry.

You know, George Washington was very clear about this, he said, if there's ever an impeachment trial, I have to turn over everything to the House and then ultimately, of course, to the Senate because he recognized that that was the only way that you could really make sure that the executive could be held in check by the legislature. I think Mitch McConnell is doing something at this point that is going to have serious repercussions for the power of the Congress going forward.

HARLOW: Quickly, if you can give us a history lesson in a minute, Hakeem Jeffries last night when he spoke, one of the House manager, was comparing this to Nixon and saying even Nixon wanted his people to talk. Even Nixon wanted documents turned over. How accurate is that?

ENGEL: I'd give that a c plus in the sense that it's technically accurate.

HARLOW: OK. ENGEL: Nixon did allow his people to testify and Nixon did slowly turn over documents, though ultimately was forced to by the Supreme Court to turn over the most important documents. But the key distinction is, Nixon also instructed his people to lie. So Nixon wanted his people to go up to Capitol Hill, but he also expected total loyalty from them, even to the point of not telling the truth.

HARLOW: Yes.

ENGEL: So that gives me at least a c plus on that one.

HARLOW: Yes. Just ask John Dean.

All right.

SCIUTTO: Exactly.

ENGEL: Yes.

SCIUTTO: And ultimately, of course, took the courts to get the tapes handed over, key evidence in that trial.

ENGEL: Exactly.

SCIUTTO: Jeffrey Engel, thanks so much.

HARLOW: Thank you all for being with us. We'll see you back here tomorrow morning.

I'm Poppy Harlow.

SCIUTTO: And I'm Jim Sciutto.

[09:59:50]

CNN's special impeachment trial coverage continues right now.