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Robert Ray talks about Impeachment Trial; Impeachment Trial Resumes Today; Trial Witnesses and Documents; Dershowitz on Witnesses; Sen. Mazie Hirono (D-HI). Aired 9:30-10a

Aired January 23, 2020 - 09:30   ET

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

[09:32:25]

JIM SCIUTTO, CNN ANCHOR: Welcome back.

Democrats get today and tomorrow to finish their opening arguments, then the president's team takes over.

We're joined now by a member of that team, Robert Ray.

Mr. Ray, thanks for taking the time this morning.

ROBERT RAY, MEMBER OF PRESIDENT TRUMP'S LEGAL TEAM: Good morning, Jim.

SCIUTTO: So first let's begin with what the president said yesterday. I want to play the sound and get your explanation of what he means by it.

Have a listen.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I thought our team did a very good job. But, honestly, we have all the material. They don't have the material.

(END VIDEO CLIP)

SCIUTTO: Is the president bragging about withholding evidence?

RAY: I don't think that's what the takeaway for me. I mean I -- I think I focused on the first part of it, which is the good job. The -- you know, I think what he's suggesting is that we -- we have the facts and evidence on our side based upon the House Judiciary Committee.

SCIUTTO: But he said material. He said material. We have all the material. They don't have the material. That would seem to indicate he's talking about documents.

RAY: I don't -- look, I -- I think what he's suggesting is we have the goods. We have the facts and merit on our side. That's -- look, this is what there's a trial about. We're in the middle of it. The House managers go first. Then there will be the defense case. That's what the Senate resolution provides. That's what the senators have voted for. That's the procedure in place. And there will be debate, ultimately, with regard to that.

SCIUTTO: Right.

RAY: And the question of, you know, whether there will be -- I think your concern in your question, whether there will be any further evidence in the form of witnesses and documents ultimately is to the Senate to decide.

SCIUTTO: Right.

RAY: I'm not here to tell the Senate what to do. They'll make that judgment. And that judgment, I think, will be based on whether or not they think they need any additional evidence in order to resolve the matter at hand --

SCIUTTO: OK.

RAY: Which is whether or not this warrants the president's removal from office.

SCIUTTO: OK, I want to get to that.

First, I want to get to the facts of the claims, some of the claims made so far. Let's start with number one.

White House Counsel Pat Cipollone, one of your teammates in the president's defense team, said the following, not even Mr. Schiff's Republican colleagues were allowed in the SCIF. This is the secure room where House hearings were take -- took place. In fact, 48 GOP members of the three committees that hold those hearings were allowed in the SCIF and they were given equal time to question witnesses.

Will you grant that Pat Cipollone was at least being misleading there?

RAY: Pat Cipollone is the leader of this defense effort. I think having a conversation now about what happened in the House of Representatives really is not the task or the matter at hand.

[09:35:04]

I think we all need to move on, take a big, deep breath and let's focus on the articles of impeachment and a trial in the Senate. The House's job is over. We're well past that now. We're now in another body in the United States Senate where this important and grave matter will be resolved.

SCIUTTO: But if that's true, then why lie? Why lie? If the case is strong, why -- why present facts that are easily -- or claims that are easily contradicted by the facts?

RAY: Jim, I'm not interested in navigating in the -- in the procedural weeds here. We're well past that now. We are in the middle of a trial about the grave question about articles of impeachment, whether there's sufficient evidence to sustain them, recognizing that those articles don't charge crimes. And the important task ahead, which is whether the Senate believes -- SCIUTTO: OK.

RAY: As a result of a trial --

SCIUTTO: Well --

RAY: The removal of the president from office is warranted. Or instead --

SCIUTTO: As you know, a central part of the defense, though, is about process and how unfair the process has been. And that's been repeated as the trial's began.

I'll give you another one.

Jay Sekulow, also a member of the president's defense team, team member of yours. He said, the president was denied the right to cross- examine witnesses, access evidence and to have counsel present at hearings.

As you know, Trump was invited by the Judiciary Committee, by Jerry Nadler, to do just that. And Pat Cipollone, he declined the offer claiming that the process was unfair.

Again, the president's legal team is claiming something that's not true there. Why, again, if the case is strong, why not be honest about how that played out in the House?

RAY: Their overall point, and I will allow House Republicans to speak to that question. I'm not a member of the House of Representatives and I wasn't there.

What I will say is that this effort was an entirely partisan effort to impeach a president. And history has not treated that kindly in connection with presidential impeachments.

The point being that under the Constitution, where we are headed is, there is only grounds to remove a president from office if it enjoys bipartisan support.

SCIUTTO: OK.

RAY: That bipartisan support has to start in the House of Representatives. And if it's not there, it's not ever going to be accomplished in the United States Senate where a two-thirds vote of removal is required in order to remove a president from office --

SCIUTTO: Well, there's actually no --

RAY: Which -- which necessarily means that it has to enjoy bipartisan support.

SCIUTTO: Well, as you know better than me as a lawyer, there is no constitutional requirement on the bipartisan makeup. This gives the House the power to impeach based on a simple majority.

But I do want to ask you, because on Saturday, you're -- you're going to get --

RAY: Well, that's -- that's true, but --

SCIUTTO: And --

RAY: Well, but, Jim, that's true, but that's -- you know, the point being is that if it is -- if it does not enjoy bipartisan support, as it did during the Nixon impeachment proceedings, it is not perceived by the public to be legitimate, or it's certainly not legitimate enough to take the final resort or drastic action of removing a president from office. And that's all this is about.

SCIUTTO: Listen, it's a fair argument. I would note that majorities, although a small one, does support the president's impeachment and removal in public polling.

Just one final question because you're going to get to begin presenting your case on Saturday.

New evidence has emerged, even as the trial has begun, there are e- mails now showing that the White House laid the groundwork to delay this aid the day before the president's phone call with Zelensky and, again, gives a direct tie to the White House on this aid delay.

How will you make the case that senators should not consider such new evidence that has emerged?

RAY: Because it was a temporary delay. It was recognized as such. Notwithstanding the GAO report, the president was within his prerogative as a matter of foreign policy. And ultimately the point was the administration recognized, as Mick Mulvaney has explained at that press conference, that the aid could not, under the law, be delayed any further than the end of the fiscal year, and it wasn't, and it was released. So I don't know that that really, at the end of the day, what difference does that make?

SCIUTTO: Well, they did have to -- the Defense Department did have to extend the deadline because $35 million of the dollars was not released in time to go to Ukraine, which is at war with Russia. But small fact check there.

Robert Ray, we do appreciate the time and we hope to welcome you back on the air.

RAY: Thanks very much, Jim. Take care. Be well.

SCIUTTO: And we'll be right back.

(COMMERCIAL BREAK)

[09:43:47]

SCIUTTO: Day three of the Senate impeachment trial kicks off today with Democratic House manages set to begin their second day of arguments just hours from now.

POPPY HARLOW, CNN ANCHOR: Lauren Fox is on Capitol Hill with us again. "Washington Post" congressional reporter Rachael Bade joins us.

Lauren, let's just begin with what happens in a few hours from today. What's the big nugget for this afternoon?

LAUREN FOX, CNN CONGRESSIONAL REPORTER: Well, Poppy, today is all about Democratic House managers making the case for why the president abused his power. Expect them today to make that the thrust of their argument. But as always, the audience is those four moderate Republican senators who they are hoping to convince to support them with witnesses, hoping to get people like John Bolton and Mick Mulvaney to come and give a fuller picture of the events that transpired over the summer, Poppy.

SCIUTTO: So, Rachael, we were doing a count, or Jeff Zeleny, our colleague, was doing a count yesterday. At one point during the evening session, 15 GOP senators seats were empty and 12 Democratic seats were empty.

Are they, or are they not, by the rules required to stay at their desk throughout the proceedings?

RACHAEL BADE, CNN POLITICAL ANALYST: Yes, no, I have a -- I have a different perspective on this being up there on The Hill. I kind of think this whole hubbub is a little overblown. I mean I saw, you know, when this was being talked about on Twitter last night, I think first people were saying, oh, Republicans aren't paying attention.

[09:45:04]

They're storming out. From what I could see and from what a lot of my colleagues could see, it wasn't, you know, one party leaving the room. There were, as you just mentioned, a lot of senators sort of getting up, walking around at different times, going to the bathroom. But I also think, you know, these are 70, 80-year-old people who, you know, it's hard to sit through 12 hours of presentation without moving around and stretching your legs.

And so, you know, I think -- I think, you know, if you want to criticize, you know, Republicans for not wanting to have witnesses and sort of saying they're trying to shut down the trial, that seems sort of, you know, have more legs than sort of this thing that, you know, Republicans weren't paying attention.

I know that I was watching, for instance, you know, Susan Collins, who literally was taking pages upon pages of notes.

HARLOW: Yes.

BADE: But, anyway, I just -- I think that, you know --

SCIUTTO: Yes.

BADE: It's tough to sit through these presentations sometimes and, obviously, they have a duty, they need to be listening. But from what I could see, a lot of them were.

HARLOW: Lauren, to you.

In terms of this talk, there was -- I believe it was "The Washington Post" reporting just yesterday about a trade potentially being open for witnesses here. It seems like Democrats have all but squashed that idea. For example, trading a Joe and Hunter Biden, saying, OK, OK, we can do witnesses. You can have them and we want John Bolton.

Is that just -- is that dead now?

FOX: That is dead. And I asked Chuck Schumer, the top Democrat in the Senate, exactly about the trade yesterday. He shut it down immediately. He said, that is not on the table.

Essentially, Joe Biden issued a statement as well saying, that is not something that he thinks Democrats should support.

So I will tell you that a lot of Democrats who are a part of this trial are not going to go for a trade. Especially for the fact that they don't even know what John Bolton is going to say. Yes, they want him to come and testify because they think he would tell more of the story, but they still don't know if his presentation would be advantageous to them or whether it would be advantageous for the president. He's really a wildcard.

HARLOW: That's true.

FOX: So trading him for Hunter Biden really doesn't make that much sense.

SCIUTTO: So, Rachael, of course, focus remains on whether there is four senators, are four senators who would be willing to vote with Democrats to call witnesses. And one Democratic senator caught my attention, told Phil Mattingly yesterday, that it doesn't take a rocket scientist to figure out attacking the motivations of the very people we need to vote with us ain't a great strategy.

Are Democrats concerned that some of the more pointed attacks from Jerry Nadler, for instance, on Republican senators, might backfire with those moderate Republicans?

BADE: Yes, there was definitely a little sort of -- I don't want to say scolding, maybe gentle scolding. Walking back into the chamber yesterday, we talked to a number of Senate Democrats who sort of, you know, were trying to give a little advice to the managers, like, you know, sort of lay off the accusing Senate Republicans of a cover-up. I mean if we're trying to get that fourth Senate Republican to agree to bring in witnesses, the way to do it is not to sort of accuse them of, you know, treachery, as Jerry Nadler did when they've been sitting through 12 hours of presentations and it's 1:00 in the morning and they're really tired.

So I think that, you know, when it comes to this fourth Senate Republican, and are they going to find that fourth, you know, I'm talking to Senate Republicans who are, obviously, in line with the president and trying to get this done as soon as possible. And they are telling me that they still feel very confident that that fourth person is not going to -- there's not going to be that fourth person.

And I would -- I don't know if that's going to be true. Obviously, we have a long way to go until we get to that vote, but I can tell you there's not -- there's not a lot of bipartisan -- there's not any bipartisan talking up on The Hill right now. And I think like if that was going to happen, if there was going to be that fourth Senate Republican, you would think there would be a little more engagement. And I've talked to senators who have been a little sort of surprised by how people are really in their corners right now. There's just -- there's just -- there's not a lot of cross-party talking right now. So -- yes.

SCIUTTO: That's interesting.

Rachael Bade, Lauren Fox, thanks to both of you.

CNN's John Harwood joins us now from the White House.

So, John, the president and his legal team certainly don't want witnesses. They're making that very public. Seems to be some behind the scenes fighting against this as well.

How are they doing that?

JOHN HARWOOD, CNN WHITE HOUSE CORRESPONDENT: Well, they are trying to put the pressure on Republicans not to go along with witnesses and making those arguments. And if anybody wondered how closely President Trump was paying attention to this trial, his Twitter feed answered it this morning, a barrage of tweets. In addition to deriding many Mike Bloomberg in connection with the 2020 presidential campaign, he was quoting various Fox News personalities on what they considered defects in the Democrats' case.

One of those Fox News personalities, who also happens to be of counsel to President Trump, is Alan Dershowitz, the retired Harvard Law professor. And he made a strong case that if Democrats do call witnesses like John Bolton, it's essential to have Hunter Biden as well.

Take a listen.

(BEGIN VIDEO CLIP)

ALAN DERSHOWITZ, MEMBER OF PRESIDENT TRUMP'S LEGAL TEAM: If I were a defense lawyer in a case and they were trying to prosecute my client for making statements about corruption that weren't true, the first witness I'd call is the witness about whom the conversation took place.

[09:50:03]

So, of course, you could never have witnesses here without Hunter Biden being a central witness.

(END VIDEO CLIP) HARWOOD: Now, there are a few major defects in that argument. One is that there is no evidence that Hunter Biden did anything illegal. May have been unseemly, influence peddling, but neither a Ukrainian nor U.S. officials were pursuing investigations of him.

Secondly, President Trump's not being impeached for saying things about corruption that aren't true. He's being impeached for, according to Democrats, manipulating foreign policy for personal political advantage.

And, finally, the corruption issue in general both about Joe and Hunter Biden and also about the Democratic servers, as we've seen from Trump administration officials who testified in the House, is an invention to absolve Russia for its interference in the 2016 election. But we're -- what we're left with is a raw struggle for power. Where do 51 votes lie for either Hunter Biden, John Bolton, Mick Mulvaney or others, guys.

HARLOW: John, thanks so much. Let's see what today brings. Appreciate the reporting.

With us now again, Andy McCabe, he's the former deputy director for the FBI and a CNN contributor.

So let's talk more about the Dershowitz argument.

ANDREW MCCABE, CNN CONTRIBUTOR: Sure.

HARLOW: Because the second part of that, that people didn't see there, is Dershowitz saying, watch out, Democrats, you are going to rue the day, that's a quote from him, you're going to rue the day because we're going to call Hunter Biden and no court is going to block that. You're going to call witnesses like Bolton and either executive privilege is going to block that or the courts are going to block that. Does he have a point?

MCCABE: He does have a point. I think -- there's a -- there's a few things packed in there. First, this idea that witnesses are somehow, if you get a witness, I should get a witness, that does not exist in American jurisprudence. The standard is, if a witness is relevant, then their -- the testimony is allowed as long as a judge doesn't determine that the testimony would be more prejudicial than it is probative.

HARLOW: Right.

MCCABE: And that is certainly potentially the case with Hunter Biden. He is not a fact witness. He has no direct access to any of the facts of the underlying allegations. His only relevance would be if -- if you could imagine Hunter Biden coming in and essentially admitting that he and his father were engaged in corrupt practices in Ukraine, which I find to be a pretty remote possibility, but if he did that, it would theoretically prove the president's intent in asking for the investigations was some sort of a legitimate effort --

HARLOW: Would it justify it? MCCABE: No, no, I don't think so. I mean this is a fairly tortured

legal argument to establish relevance. But, you know, let's be honest, the job of a defense attorney is to make a mess of what the prosecution has constructed. And the prosecutors have to use facts and law to build a very coherent argument that leads you to the conclusion the defendant is guilty. The defense's job is to take that carefully constructed argument, make a mess of it and turn to the jury and say, you can't possibly convict my client on the basis of this mess.

SCIUTTO: So you saw lead House manager Adam Schiff invoke the names of the people who testified during the House impeachment hearings, whose testimony at the time was moving, even for some Republicans who heard from him, Maria Yovanovitch, Ambassador Bill Taylor, White House Adviser Fiona Hill, these are all appointees of the president who said they saw something fishy going on here.

MCCABE: That's right.

SCIUTTO: I just want to play Adam Schiff's sound and then ask you a quick question.

(BEGIN VIDEO CLIP)

REP. ADAM SCHIFF (D-CA): They risked everything. Their careers. And, yes, I know what you're asked to decide may risk yours too. But if they could show the courage, so can we.

(END VIDEO CLIP)

SCIUTTO: I mean, like I said, at the time, there were Republicans who said, hmm, you know, those guys made a point, they had a point there. But I wonder if you think that moment is passed given how it seems like virtually everyone, the senators, are in their corners?

MCCABE: The challenge for Chairman Schiff is to continue that moment. It's -- it is likely to be overwhelmed by the raw politics of what we're engaged in here, but I think that shows you some of the mastery of what Schiff laid down yesterday. He has an incredible command of the facts and the law, which you absolutely have to have, but he was able to tap into these broader themes of patriotism, of duty, of honoring the Constitution, if you're going to persuade, if you have a chance to persuade one or good or three senators, I think those themes are going to be very important.

SCIUTTO: OK. Thank you. Andrew McCabe, thanks very much.

We're pleased to be joined now by one of the senators, Democratic Senator Mazie Hirono of Hawaii. She also serves on the Judiciary, Armed Services and Veterans Affairs Committee.

You might have heard just a moment ago Rachael Bade, covers The Hill, saying that from her reporting there really isn't any realistic hope at this point of four Republican senators joining Democrats to vote for witnesses, maybe that tops out at three, though Chuck Schumer saying on the other side, he thinks they're making gains every day. I wonder, can you tell us what's going on behind closed doors? Do you

have Republican support or at least possible Republican support to call witnesses?

[09:55:03]

SEN. MAZIE HIRONO (D-HI): At least on day one, which was all of Tuesday, the Republicans made it very clear that they're going right down the line with Mitch McConnell's playbook and supporting this lying president. I don't see very many cracks there. And, in fact, what I'm hearing my Republican colleagues saying is, well, we're not hearing any new stuff. Oh, really, we spent all of Tuesday them (ph) fighting back all of our Democratic managers and our efforts to bring in new evidence, new documents and new witnesses. So that's utter hypocrisy on their part.

And then they're saying, well, you know, we don't want to keep hearing the same things. We're restless, et cetera.

You know what, it is hard to listen to things that you don't want to hear, truth. And, frankly, I think what the Republicans are suffering from is the truth hurts.

HARLOW: Senator, good morning. Nice to have you.

HIRONO: Good morning, Poppy.

HARLOW: You have been -- you've been very vocal in your criticism of the president throughout, right, throughout the House investigation, et cetera --

HIRONO: Yes.

HARLOW: Up to just this morning. Are you ready to convict the president?

HIRONO: I'm waiting for the president's people to mount an un-redacted evidentiary defense of the president, which is more than the president saying, this is all a witch hunt, this is all a hoax. That's not evidence. That's just rhetorical nothing burgers.

So I am waiting for his team to make an evidentiary un-redacted defense of what the president did because the facts as laid out by the House managers yesterday was very damning, that this scheme that the president was so intent on having happen, which is the investigation of Joe Biden, he was so intent and the scheme didn't just start with this July 25th phone call. It started with the -- in March when there were all these efforts to get rid of Ambassador Yovanovitch and to malign her and cast aspersions to get rid of her.

So, you know, yesterday's recital of what the president did made it very clear that he was totally focused and intent on having Ukraine, a very vulnerable country, bend to his will for his own purposes, not for our national security, not for our country's good.

If anything, Poppy, what happened is that we have put our own -- our country's -- I would say our country's word, when we told the Ukrainians, we have your back, and then the president does this, what does this do to our country's standing and what do our allies think of us? I mean our word is not good, not under this presidency.

SCIUTTO: Are you confident that you will get a vote on admitting witnesses or new testimony, new evidence?

HIRONO: No. No.

SCIUTTO: May not get a vote?

HIRONO: No, it may not happen because the discussion, the debate is going to be on whether or not we should have a debate about witnesses or documentary evidence. So Mitch McConnell has set it up in the strongest way possible to fast track this trial so that it's a fast trial and not a fair trial. And, you know what, all of Tuesday, we're there for 12, 13 hours, watching the Republicans go right down the line, pretty much except for one little vote that didn't really matter in my view, go right down the line to protect this lying president and to be on Mitch's playbook. And I think Mitch is going to do everything he can to hold on to his caucus, because that's his goal.

HARLOW: The thing that is confounding, I think, to a lot of people, though, is that you've got public opinion on your side for these witnesses.

HIRONO: Yes.

HARLOW: You -- 69 percent of the country, 69 percent of independents, 48 percent of Republicans, so a plurality there. Do you think -- do you have indications from Lisa Murkowski, from Senator Collins, et cetera, that that is swaying their mind when it comes to witnesses, that they may side with you guys because of public opinion or is it not making a difference?

HIRONO: I think it pains them, but I don't know if, at the end of the day, they're going to break from the playbook, which is the president's playbook.

I think that they are wringing their hands, but wringing of hands is not a vote and I'm waiting for how they're actually going to vote. And the way things are going is, they're going to go right down the line protecting this lying president, and that is bad for our country.

And really the thing that bothers me a lot, also, is going forward, the president already believes that he can do anything he wants under Article Two, including shooting somebody on 5th Avenue. What's he going to do if he's exonerated? Who's he going to shake down next? What money is he going to use as a bribe with the next person or country?

SCIUTTO: Yes.

HIRONO: That should be a concern to all of us because we know that this president is totally capable of doing that.

SCIUTTO: Yes.

HARLOW: Senator Hirono, it's nice to have you on a big, long day ahead for you.

[10:00:01]

HIRONO: Yes.

HARLOW: Thank you.

HIRONO: Aloha.

HARLOW: And thanks to all of you for joining us. We'll see you back here tomorrow morning. I'm Poppy Harlow.

SCIUTTO: And I'm Jim Sciutto.