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Harvard Professor Alan Dershowitz On Impeachment Trial; Sen. Doug Jones (D-AL) Up For Re-Election, Discusses Impeachment Impartiality; "The New York Times" To Announce Endorsement For Democratic Candidate On Sunday; Interview With Tom Steyer (D), Presidential Candidate; Interview With Sen. Chris Coons (D-DE). Aired 9-10a ET

Aired January 18, 2020 - 09:00   ET




MICHAEL SMERCONISH, CNN ANCHOR: I'm Michael Smerconish in Philadelphia and they're off. At long last, voting has begun. Forget Iowa. I'm talking about the Hawkeye state's neighbor to the north, Minnesota. Yesterday at 8 A.M., Minnesotans were able to cast early absentee ballots 46 days before the state's primary election on March the 3rd. Soon other states will follow. Thirty-nine states and the District of Columbia allow early voting, so it's game on against the backdrop of the impeachment of President Donald Trump and that's not the only juxtaposition of note.

On the same day senators were sworn in for President Trump's impeachment trial, the Dow closed at a record high. Also, the same day, the Senate passed the new U.S.-Mexico-Canada agreement, replacing NAFTA and just one day prior, a trade deal with China committed China to buying an additional $200 billion of American goods and services by 2021. It's expected to ease some of China's tariffs on American products while preserving most of the tariffs that Trump placed on Chinese goods.

It's a lot to process. We'll get to it today with two members of the United States Senate. Doug Jones and Chris Coons are here, plus presidential candidate Tom Steyer.

But first, one of the latest additions to the president's legal team, Harvard emeritus professor Alan Dershowitz. He's also the author of "The Case Against Impeaching Trump" and "Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo."

Professor, thanks for being here. Congratulations. You are page one all across the country, including here in Philadelphia where you're the lead story of the "Enquirer." I'm confused. You were announced by the White House as a member of the president's legal team without any qualification and then before I went to bed last night, I watched you with Anderson Cooper and you seemed to limit your role. How come?

ALAN DERSHOWITZ, MEMBER, TRUMP LEGAL DEFENSE TEAM: My role is limited. I'm only going to appear on behalf of the Constitution, making the arguments against impeachment based on the Constitution. I'm not part of the strategic legal team. I won't be involved in the debate over whether there are witnesses or no witnesses or whether or not facts come out one way or the other.

This is a role I've played before in other cases. I'm a specialist in constitutional law. I've written three books and probably 25 articles on the impeachment clauses of the Constitution. So I will appear on Friday, make my argument to the Senate about the constitutional reasons why these two articles of impeachment don't satisfy the criteria and then I'll answer questions from the senators, but that will be the extent of my role. I am clearly on the side of opposing impeachment. No ambiguity about that, but I am -- I have a limited role to play and that was --


DERSHOWITZ: -- by agreement with the President and with others. Yes.

SMERCONISH: Well, I was going to say was that your call or was that the president's desire?

DERSHOWITZ: Well, I think it was mutual. We discussed it. This is the role that I have played in the past. I've made these arguments previously and I think I will be most effective making this argument. It's important for the Senate to hear from somebody who is not a partisan. I'm a liberal Democrat. I voted against Donald Trump and for Hillary Clinton.

I would be making exactly the same argument if Hillary Clinton had been elected president and she were impeached on similar grounds. I made the same or similar arguments when Bill Clinton was impeached. Even going back to 1973 when Richard Nixon was impeached, I was on the National Board of the American Civil Liberties Union. Though I favored his impeachment, I urged the board not to take a position on his impeachment, but to stand up for his civil liberties and to make sure that all the constitutional I's were dotted and T's were crossed. So this is a consistent role that I've played and have taken over the last almost half century.

SMERCONISH: I ask this question because during the House, process we heard from four constitutional law professors, Turley, Feldman, Karlan, Gerhardt --


SMERCONISH: I'm sure you're all -- they're all personally acquainted with you. It seems to me that you are casting your role as more expert witness than advocate. Are you uncomfortable arguing --

DERSHOWITZ: No, I'm an advocate.

SMERCONISH: But let me ask this. Are you uncomfortable arguing the underlying facts of this case?

DERSHOWITZ: I'm just not an expert on the underlying facts. I'd be perfectly comfortable arguing any aspect of this. I have argued some of them in my writings.


I'm an advocate, not a witness and I'm advocating against impeachment. I think it would create a terrible, terrible precedent for future presidents if we were to weaponize the impeachment provisions of the Constitution and apply them to any president who was accused of abusing his power. That would have included Adams, Jefferson, Lincoln, Roosevelt, you name it. Virtually half of our presidents --


DERSHOWITZ: -- have been accused of abusing their power. As to obstruction of Congress --

SMERCONISH: OK. Give us --

DERSHOWITZ: -- it's an invented concept.

SMERCONISH: Give us a sneak peak of the argument. This is from your latest book. I'll put it on the screen and I'll read. "When the Constitution speaks in clear terms, its plain meaning must prevail over other considerations. It's hard to imagine a clearer set of words than those governing impeachment: 'The President, Vice President and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery and other high crimes and misdemeanors.'

The text speaks clearly of crimes, enumerating treason, bribery and other high crimes and misdemeanors. It requires a trial in the Senate and conviction of one or more of those crimes."

It sounds as if Professor Alan Dershowitz believes that only crimes are impeachable offenses, which I would say puts you at odds with what Hamilton wrote in Federalist 65.

DERSHOWITZ: No, it doesn't. Hamilton in fact supports my view. Hamilton describes the criteria and then says all of these crimes are offenses against the public and therefore they can be deemed to be called political, but both Hamilton and Madison were very fearful of giving Congress too much authority and turning our republic into a parliamentary democracy in which the president served at the will of Congress. Those were Madison's words, the will of Congress.

And so after they decided to have an impeachment provision, which was much debated, they then decided on what the criteria would be and the criteria were all criminal or criminal-like and of course we didn't have a criminal code, a federal criminal code at the time that the Constitution was enacted, but what they were talking about was treason, bribery or other, and the word other is crucial.

And my colleague Larry Tribe who disagrees with me about practically everything, in his book on impeachment does acknowledge that the word "other" indicates that the high crimes and misdemeanors must be of a sort comparable to treason and bribery and that's my position. It's a position that should be presented to the Senate in a non-partisan way. I'm trying to be supportive of the Constitution. I think my advocacy would be good for the country, otherwise I wouldn't do it. I would not be --


DERSHOWITZ: -- in this case if there were not serious constitutional issues presented.

SMERCONISH: You reference Laurence Tribe. By the way, I read both your books.


SMERCONISH: Here's what he said. I want to put this on the screen for the audience. "It would have been easy to write a provision limiting the impeachment power to serious crimes. The framers, they didn't go that route." Doesn't he make a good point?

DERSHOWITZ: No, he doesn't because it would have been easy for the framers to put in words like "abuse of power," which they discussed when they decided to have an impeachment provision. Peculation, that was one of their favorite words, malpractice, maladministration, administration of -- any of these things, obstruction of Congress, neglect of duty, all of these were discussed. None of them were placed as criteria. Instead, the criteria were limited to treason, bribery or other high crimes and misdemeanors.

What my friend and colleague Larry Tribe is saying is that because it wasn't expressly taken out of the Constitution, you have to assume it's in the Constitution. No. When you're engaged in a -- in a concept like impeachment, you have to apply the concept of what's called lenity. It was well known to the framers and that is when you have two possible interpretations, you always go with the interpretation that is more supportive of the person being accused and less supportive of the accuser.

And therefore, if there are doubts, if Tribe and I have a disagreement about what the interpretation is, the interpretation should be the one that is more favorable to the accused and less favorable to the accuser, but I think the words of the Constitution are clear. The framers could have put any of these criteria into the Constitution. They decided not to because they had two fears.

One, a fear of a president who would exceed his authority, the other a fear of Congress that would exceed its authority. Remember that the framers were not enamored of the House of Representatives. They did not want a pure democracy. That's why they created the Electoral College, the Senate, which was to be appointed by the state legislature and had provisions that protected against the abuse of power by Congress as well as by the president --

SMERCONISH: Professor --

DERSHOWITZ: -- and so a compromise was struck.

[09:10:00] SMERCONISH: Good luck next Friday. Come back next Saturday and let's continue this discussion.

DERSHOWITZ: My pleasure. Thank you.

SMERCONISH: Joining me now, Senator Doug Jones of the great state of Alabama, a Democrat who's up for re-election this fall, which puts him in a tricky position. He's also the author of "Bending Toward Justice: The Birmingham Church Bombing that Changed the Course of Civil Rights." Let me just pick up where I was with Professor Dershowitz who seems to be suggesting that impeachable conduct must constitute a crime. You're a former prosecutor. Is that the way you read the Constitution?

SEN. DOUG JONES (D-AL): Well, Michael, thanks for having me, number one. That's not necessarily the way I read the Constitution, but I'm looking forward to hearing Mr. Dershowitz' arguments and I think that he makes compelling arguments, but I've also read the testimony over in the House and I think those constitutional scholars make compelling arguments as well.

You know, we have nine members of the Supreme Court, Michael, and it's because people have a disagreement on the exact wording and meaning of the Constitution. We don't have one Supreme Court justice, we have nine for this very reason. So I'm looking forward to hearing his arguments and I'm looking forward to hearing the opposing view from House managers.

SMERCONISH: I saw you, Senator, and your colleagues take an oath this week. Let's put it on the screen. "I solemnly swear that in all things appertaining to the trial of the impeachment of Donald John Trump, President of the United States, now pending, I will do impartial justice," my emphasis, "according to the constitution and laws: So help me God." What does impartial justice mean to you and what do you think it means to some of your colleagues?

JONES: I think it means putting aside the biases and prejudices that we all have going into this, whether they're political or whatever. I think we have to try to do that, to set those aside. Every day in this country during the week, jurors do just that. They all walk into a jury room where their common experiences, with experiences on their own, with their biases, with their thoughts, their prejudice you name it, the key is whether you can set those aside and give both sides a fair trial, give the president a fair trial, but also give the House managers a fair trial.

I think people can do that. I think as you watch people walk up there, I didn't see any of my colleagues, you know, crossing their fingers behind their back when they signed that oath. I have to take them at their word --


JONES: -- that regardless of the fact that they say that they're impartial, that they can set this aside and do fair and impartial justice. SMERCONISH: I know.

JONES: I have to believe --

SMERCONISH: But Senator, I respect -- I respect the fact that you've not weighed in on the ultimate issue, but a number of your colleagues, they have and frankly --

JONES: Sure.

SMERCONISH: -- whether they were crossing their fingers or their toes, I don't know how, in good conscience, they could have taken that oath.

JONES: Well, that's up to them. I can't -- I can't get into their heads. I can't decide for them. All I can do is my oath and what I do. I will -- I'm going to encourage the colleagues and I've done it. You know, this, Michael. I've done this. From the very beginning, we saw this. I told people please get out of your partisan corners. Look at this as the serious matter that it is, a constitutional issue.

We've got folks like Alan Dershowitz coming in to talk about the Constitution of the United States. This is a really serious matter. They're serious allegations. I hope everybody can do it. Obviously, you know, people are human. They're not going to do it. Not everyone is going to do it. I'm just hoping that enough people can do this one way another to come down on whichever side they come down, but they do it with their clear conscience and that they can face their constituents in the American public afterwards.

SMERCONISH: Put your -- put your former hat as prosecutor on. By the way, I want to remind the audience, I wanted to reference that great book that you wrote because you prosecuted Klansmen for the famous or I should say infamous 16th Street bombing, just so folks are reminded of your credentials.

JONES: Right.

SMERCONISH: Do you think this record, as presented to the Senate, is ripe for deliberation or do you regard it as incomplete?

JONES: Well, it's incomplete, but that doesn't necessarily mean it's not right for deliberation. I think, again, you see cases presented every day that have gaps in the evidence. The question becomes at the end of the day as to whether or not the picture is complete enough for people to make a judgement. We've been looking at this and studying.

My biggest fear is regardless of whether it's right for a judgement now, it is still somewhat incomplete and it's going to be complete later on. We're still seeing every day, even today there's more information coming out and that is going to continue to happen if we don't try to get witnesses that are subject to cross-examination.

It's that cross-examination that the president's lawyers can do that is the great truth-seeker in our justice system and that's what I'd like to see. I'd like to see these witnesses, these documents and the ability of both House and the president's lawyers to cross-examine whatever witnesses that we've got, either in deposition or on the floor of the United States Senate.

SMERCONISH: Final question. You're in a tough spot. You are a Democratic senator representing a very red state. How do you balance your search for truth and what the political dynamics might be of the great state of Alabama?


JONES: Because I don't go to a partisan corner. I don't go to a political corner. I know that's hard for people to believe, Michael, because everything in media -- you guys in the media, everybody else looks at this and the first question that gets asked is how do you balance this with a tough race that you're going to be in?

The fact of the matter is I put the politics aside. My office consistently, we do everything in my office without a view toward the politics of this. We do it, we look at the evidence and we do what we believe is the right thing so that when I come back to the state of Alabama, I can in good conscience give a good argument as to why I voted a certain way without regard to politics. If I've got to make it based on a political decision, then I'm really not doing my oath that I took as a senator or the oath that I took just the other day any justice whatsoever.

SMERCONISH: Senator, thank you so much for being here.

JONES: Thank you, Michael. Anytime.

SMERCONISH: Still to come, during the Democrats' most fraught moment of the campaign, he was the man in the middle. Tom Steyer says he's going to win by attacking Trump on the economy. I'll ask him how.

And "The New York Times" editorial board interviewed all the Democratic contenders and the paper is announcing who it will endorse tomorrow night. I want to know what you think. Go to my website at and answer this question right now. Should newspapers make political endorsements?





UNIDENTIFIED MALE: Who are all your friends (ph)?

UNIDENTIFIED FEMALE: This is the weekend (ph).


UNIDENTIFIED FEMALE: Can we get a big smile?

JOE BIDEN, (D) PRESIDENTIAL CANDIDATE: That's as big as it gets.

UNIDENTIFIED MALE: What an opportunity.

UNIDENTIFIED FEMALE: All right. We'll head in.






UNIDENTIFIED FEMALE: Let's just dive in.


SMERCONISH: So that video is part of the big drumroll "The New York Times" is doing for its endorsement of a Democrat in the primaries, but does a newspaper endorsement for a presidential candidate still matter in the Twitter era? Tomorrow night, two weeks before the Iowa caucus, "The Times" is going to make the announcement, first on its Sunday TV program "The Weekly," then online and in Monday's newspaper.

Aiming for transparency, "The Times" filmed meetings between each candidate and more than a dozen of its editorial board members. "The Times" editorial page editor James Bennet had to recuse himself because his brother, Colorado senator Michael Bennet, is still in the running.

"The Times" first endorsed a president back in 1860, Abraham Lincoln. A "Times" spokesperson says the paper first did primary endorsements in 1992 for Bill Clinton and for George Bush. In January of 2008, it endorsed Hillary Clinton over Barack Obama. In 2016, Hillary Clinton won the vast majority of newspaper endorsements, including several traditionally conservative leading papers like "The Dallas Morning News" which hadn't gone blue in 40 years and the "Arizona Republic" which hadn't gone for a Democrat in 126 years.

Meanwhile, "The Times" not only endorsed Hillary, unsurprising since they haven't backed a Republican since Eisenhower, but also ran an anti-endorsement titled "Why Donald Trump Should Not Be President." All this seems to have backfired, alienating Trump supporters and allowing Trump to paint himself as the victim of media bias.

So will a "Times" endorsement move the needle or might it color the public's view of the paper's reportage on the 2020 campaign? I want to know what you think. Go to my website at Answer this survey question. Should newspapers make political endorsements?

Joining me now, an editor from a paper that has decided not to endorse any candidates, David Haynes of the "Milwaukee Journal Sentinel." David, why did you make that decision not to endorse?

DAVID HAYNES, IDEAS LAB EDITOR, MILWAUKEE JOURNAL SENTINEL: Thanks for having me, Michael. we decided back in 2012 after a very contentious recall election here involving our then governor, Scott Walker, to take a look at our endorsements and at the time when we looked at it, we just didn't feel like we were having impact and I think particularly when a regional newspaper like ours weighs in on a national race, I just don't know that we can add a lot of value.

And as you -- as you mentioned in the run-up to the segment, there's also this problem I think with readers confusing what we do in the news side, which is factual and accurate and, you know, relevant for our readers, with what we were doing on the opinions side and so we just didn't feel like we were having an impact and we were worried about that confusion.

SMERCONISH: That last point of yours, I think it's become even more of an obstacle. In other words, the well has been poisoned so to speak because you have so many out there who are offering opinion and it makes it difficult for the public to distinguish between news and opinion even if that wall has always existed in your newsroom.

HAYNES: Well, I think that's right and, you know, we've taken a step further. Last year, we essentially disbanded our editorial board. Now, we still do an occasional editorial on local issues or First Amendment issues, but we focus now on solutions journalism with our team which is reporting on responses to social problems in the community and then seeing if those responses have any evidence to back them up.

And what we have found from our readers is that we have better readership. Our analytics show that that's working better and I can tell you, Michael, that I had not one person, zero, call me and say please, please write more editorials.

SMERCONISH: Do you lose a branding opportunity of sorts? On "The Times" editorial page, I found something I'll put on the screen. It's actually from the "Columbia Journalism Review" from January of 2017.


John McCormick was the one to say, "Swaying votes is only one reason for endorsing and arguably not the most important. Every few years, endorsements bring a publication to full stop. They explain to the world what the publication is, what it advocates, how it thinks, what principles it holds dear." Do you find that persuasive?

HAYNES: I really don't. I think that our job as journalists, especially in a local market, and I would argue "The New York Times," "The Washington Post" might very well be in a different situation than we are, I think our job is to report factually and accurately with relevance and context on the coming election and we're going to do a lot of coverage with the Democratic National Convention here in July on this election. I think that's our job and then leave it to the readers to decide for themselves who to vote for.

SMERCONISH: David Haynes, thank you so much for being here.

HAYNES: You bet.

SMERCONISH: Let's see what you're saying on my Smerconish Twitter and Facebook pages. I think from Facebook, "Michael's comment on news outlets being unable to differentiate between opinion and reporting has helped Mr. Trump immensely." Well, Derek, it both helps Trump immensely and harms Trump immensely.

I think it's harder for people to discern that which is opinion versus that which is just straight news reporting. I can tell you that here on a Saturday in my time slot, I give you a little of each, but I think you know where that line lies. On some programs, particularly in the evening hours, it's not so easy to discern.

Remember, I want to know what you think. Go to my website at Answer today's survey question. Should newspapers, should they, make political endorsements?

Up ahead, in the most viral video moment from this week's democratic debate, he was the man in the middle. Meanwhile, Tom Steyer is rising in the polls by spending exorbitantly like his rival Michael Bloomberg. Are billionaires making the process unfair? I will ask him.



SMERCONISH: The most viral moment from this week's Democratic debate came after it ended and my guest was stuck in the middle. Everybody was transfixed as Bernie Sanders tried to shake Elizabeth Warren's hand, she refused. We soon got to hear their audio which proved even more riveting when fellow candidate Tom Steyer walked over.


SEN. ELIZABETH WARREN (D-MA), PRESIDENTIAL CANDIDATE: I think you called me a liar on national TV.


WARREN: I think you called me a liar on national TV.

SANDERS: Let's not do it right now. You want to have that discussion. We'll have that discussion.

WARREN: Anytime.

SANDERS: You called me liar -- you told me -- all right, let's not do it now.

TOM STEYER (D), PRESIDENTIAL CANDIDATE: I don't want to get in the middle. I want to say hi, Bernie.

SANDERS: Yes. Good. OK.


SMERCONISH: For Steyer who had spent $142 million on political ads it was a moment you can't buy. He tweeted, "Just wanted to say hi, America." It earned him over 80,000 likes. Tom Steyer wants to say more than just hi right now and he joins me. I know you've been asked a million times if you heard what they were saying between one another. You didn't. I have to ask you this. Is Bernie always so abrupt?

STEYER: I -- I like Bernie Sanders. You know, I consider him a friend. He's someone I respect him, I like him. He was in the middle of a private moment. I thought he was fine.

SMERCONISH: In the debate substantively, here's something that you said.


STEYER: I am prepared to take on Mr. Trump on the debate stage and take him down on the economy.


SMERCONISH: At the outset of the program I referenced the fact that, you know, we've got this odd juxtaposition. Here's the president going now through impeachment in the Senate at a time the Dow reaches an all-time high, a new trade agreement is reached with China and we get the USMCA.

So, square all of this for me. What is the case that you intend to prosecute against a president for the economy?

STEYER: Look, Michael, the president is always talking about the Dow. He's always talking about unemployment. When I go around the United States, what I see is Americans who are suffering who -- I see a country where, yes, the economy's growing, but all of the increase in income is going to the richest Americans and that that's been going on for 40 years.

This is a president who passed possibly the worst economic legislation in American history, which was his tax bill, which was the biggest give away in history to rich people and big corporations. Sure the Dow is up. If you -- when companies don't pay any taxes, their bottom line gets bigger and the stock price goes up, but that's overwhelmingly the benefit of that goes to the richest Americans.

What I can see in this country is a country where all of the good outcomes are going to rich people. Where the vast bulk of Americans are under dramatic pressure and we have a cruel Republican party that is absolutely willing to make Americans suffer so rich people can pay lower taxes. It's just not right.

SMERCONISH: I had Peter Navarro from the White House here one week ago and he made the observation that when you look at wages, wages are growing at a higher clip for those who are lowest on the economic totem pole than those who are at the upper echelon. And, of course, you know that the White House touts the fact that African-American unemployment is at an all-time low. I mean, there are metrics that they point to that make their case is what I'm saying. STEYER: Yes, they do. But what we know and what you know and what everybody in America knows is unemployment is low. And you can't afford to live on it.

If you go around the United States, there is a gigantic housing problem because working people can't afford to pay rent or buy a house. What we're seeing is a national government, a Republican government that has walked away from working people in the United States dramatically now and it's been true for 40 years since Ronald Reagan.


So we see a dramatic housing problem. You see a national -- a Republican government that is trying to take away people's health care and a national government which is doing everything it can to slam the door on education in the United States of America.

This is a very unequal country with very little mobility where, in fact, the economy is growing and rich people are doing fantastically and big corporations are paying a tiny percentage in tax. It's very, very unfair. And people in -- the vast bulk of Americans are suffering as a result of Republican policies, this president.

SMERCONISH: I need to ask one billionaire about another billionaire. How do you feel about the amount of money that Mike Bloomberg is spending on this race thus far and apparently willing to continue to spend even if he's not the nominee?

STEYER: Look, my attitude about Mike Bloomberg is simple. He's very different from me. If he wants to be the representative of the Democratic Party, then he's got to embrace a wealth tax, something I did almost a year and a half ago.

This is -- this society is incredibly unequal as to income and dramatically more income as to wealth. In fact, we have redistributed the money in this country to the richest people away from everybody else.

He's very rich. I'm rich. Anybody who wants to lead the Democratic Party, particularly someone like him, has got to embrace the idea that we're going to combat inequality, that we're going to go back to a country where we actually succeed together and if Mr. Bloomberg embraces that as far as I'm concerned, go ahead, bring out your message, but that is absolutely critical for somebody who wants to lead the Democratic Party.

SMERCONISH: Final question, will we ever see any other tie?

STEYER: Michael, there is no question that you will see another tie but I don't think it's going to be around my neck.

SMERCONISH: Thank you. Appreciate you being back.

STEYER: Nice to talk to you.

SMERCONISH: Let's check in on tweets and Facebook comments. What do we have, Catherine (ph)?

From Facebook. Steyer's money would be better spent supporting a viable candidate.

You know, Denise, you say that, you could say that about Bloomberg but each of them has elevated issues that otherwise, I'll answer for Steyer's case, climate change would not have received the level of conversation that they have in this cycle.

I want to remind everybody, answer today's survey question at I love this. I hope you're into this.

"Should newspapers make political endorsements?"

Up next, the Democrats are hungry to get John Bolton to testify at the upcoming impeachment trial but will that only happen if Republicans get to interrogate Hunter Biden? I shall ask Senator Chris Coons in just a moment.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: You've got a good one now, even though they are trying to impeach the son of a (EXPLETIVE DELETED). Can you believe that?




SMERCONISH: The impeachment trial begins on Tuesday. Democrats are pushing to get witnesses like John Bolton to testify, but if they open that door, will the GOP then usher in Hunter Biden? I spoke with Senator Chris Coons earlier.


SMERCONISH: Senator, as you know, the president has recently added Alan Dershowitz and Ken Starr to his legal defense team. Here's something that Ken Starr said recently.


KEN STARR, FORMER INDEPENDENT COUNSEL: I predict there are going to be witnesses. We've had too many indications from too many different senators that they want this.

UNIDENTIFIED MALE: Who's a witness then? Who appears?

STARR: Oh, I think the top one is John Bolton, right, for the Democrats. And then the Republicans really do want Hunter Biden.

UNIDENTIFIED MALE: And you think that will happen? That's what you're saying now?

STARR: Oh, there will be a battle royal over Hunter Biden.


SMERCONISH: If Democrats call witnesses, will Republicans be permitted to do likewise?

SEN. CHRIS COONS (D-DE): Well, Michael, that's not something we know yet.

As you well know, in a trial one of the tests of who is admissible as a witness is who's relevant, who's got something that they can testify to that is directly probative to the issue that's before the jury.

What we're considering is whether or not President Trump blocked Congress inappropriately in their impeachment inquiry, whether he obstructed Congress, and whether he did or didn't improperly order the withholding of military aid to Ukraine. John Bolton is clearly relevant to the latter question, to article one of the impeachment charges. Hunter Biden is clearly not relevant.

So if we're having a debate in the Senate where we're sitting as the jury about what sorts of evidence, documents and witnesses ought to be admissible, someone like Lev Parnas who has recently been appearing on television shows, who was one of Giuliani's partners in this illicit side foreign policy scheme, this effort to try and gin up dirt on Joe Biden, would he be relevant? He might very well be because he claims to have had direct conversations with President Trump about his intention to interfere in Ukraine. How Hunter Biden is relevant to the questions in front of the Senate I can't really see.

So law professor Jonathan Turley offered an answer to that question. Here's what he said.

"In a conventional trial Biden would be a relevant defense witness. Biden's testimony would have bearing on a key question in an abuse-of- power trial. Trump insists that he raised the issue of Hunter Biden's relationship with the Ukrainian energy firm to the Ukrainian president as part of an overall concern he had about ongoing corruption in that country. If that contract with the son of a former vice president could be shown to be a corrupt scheme to advance the interests of a foreign company or country, it might be Trump's best defense."


COONS: That strikes me as quite a stretch. A leap of logic worthy of Evel Knievel. But that'd part of what happens in a court of law is that advocates for both sides makes so much strained arguments to try and bring into the scope of what they're advancing, things that are pretty much of a stretch.

I will say this. I don't expect that there will be a successful vote when we start Tuesday to begin the impeachment trial on witnesses, on documents. I think that Mitch McConnell has the 51 votes he needs to insist on having the case in principle presented by the House managers first, the president's defenders second and only then to turn to the fight over witnesses. I frankly think that the core issue here is the president and his conduct with regard to Ukraine is on trial and the challenge for us in the Senate is to prevent it from becoming a circus and to make sure that whatever evidence and witnesses are admitted are actually directly relevant to the questions we're considering.

SMERCONISH: Senator, might the answer to the Republicans relative to Hunter Biden be, be careful what you wish for? In other words, there's this caricature that's been created of him that might not be matched by the facts. He's not a dope. He went to Georgetown. He went to the Yale law school. I watched the interview that he did with ABC's "Good morning America." Maybe America would be surprised if they did hear from him.

COONS: That's entirely possible. He did a strong job voluntarily coming forward and speaking on camera about a number of challenges he's had in his life. I thought it was a forthright and honest and open interview, and you're right that he's a well-educated, smart, and capable man.

I do think that the question we're going to have to confront is how broadly are we going to go with bringing in witnesses that might feed to certain pet conspiracy theories or might debase the general tenor of the trial and its conduct in the Senate? That's something the senators as a community, we're going to have to resolve as we get to the questions in the weeks ahead.

SMERCONISH: Thank you, Senator.

COONS: Thank you, Michael.


SMERCONISH: Still to come, your best and worst tweets and Facebook comments like this one. What have we got?

Smerconish, you talk about fair impeachment trial. So tell me how is it fair that what 3 or 4 are presidential candidates are not recusing themselves? I guess that is not conflict of interest.

Listen, I have a different take on this whole idea, slightly different than your point. The conventional wisdom is that those who are running for president who now have to go sit in the Senate are off the trail and that it's a detriment to them politically. I think that they're in the perfect position -- they're not exactly going to be cloistered in a religious sect. They are going to be the decision makers in all of this. I think those who are disadvantaged are the presidential candidates who are not in the Senate.

And we will give you the final results of the survey question at Go vote now.

"Should newspapers make political endorsements?"



SMERCONISH: All right. Time to see how you responded to the survey question at

"Should newspapers make political endorsements?" Survey says -- whoa! 50/50 with 10,000 and change casting ballots. Isn't that interesting? I'll leave it up so you can play tiebreaker by continuing to vote.

Here's some of what came in during the course of the program. What do we have, Catherine (ph)?

Smerconish, does it matter if newspapers endorse? Only two major newspapers endorsed Trump and he still won.

Jimmy Johnson, all right. I didn't like you when you coached the Cowboys but that's OK. I would say this. We're talking about major newspapers. If you get beyond the biggies, I'm sure that the now president did much better in smaller markets. Do they matter? It depends where they are. But I'll say this, for him it's a badge of courage or pride with his constituency.

If he were to ever win, if lightning struck and he won the endorsement of "The Times" or "The Washington Post" he wouldn't be able to rail against "The Times" and "The Washington Post." So, he uses it as a political weapon very effectively.

What else came in? Smerconish, the Dems should give the GOP Hunter Biden. The GOP will be like the dog that caught the car -- they wouldn't know what to do with him.

Hey. EMS, this is my theory. This is my -- just pure speculation. I have this vision that on the Democratic side of the aisle, some who know Hunter Biden are sort of rubbing their hands and saying, yes, yes, just keep begging for this guy because they have created -- the Republicans have created such a caricature of him. In other words, they have set the bar so low.

And then all of a sudden Hunter Biden comes in. He's a handsome guy. He's articulate. He's smart. He went to Georgetown. He went to Yale law. He put sentences together that are not indicative of having committed anything elicit other than earning money, perhaps because of the name with which he was bestowed, and Americans say oh, my God, is that all there is?

It could completely backfire. It's one of the intangibles. I don't know. But I'm paying attention.

One more if I've got time. Real quick. I'm for Tom Steyer for president.


It takes a billionaire to beat a billionaire. I was one of the first to sign his "Need to Impeach" petition. Bloomberg is trying to buy the election. He oversaw New York City. Michael Bloomberg is the X factor. I laid out in the commentary last week. He is the tiger in the tall grass and these dominoes are falling his way. A muddled picture going into Super Tuesday and then we will see what he's going.

Join me for my "American Life in Columns" tour. I am next in Pittsburgh, Manchester, sold-out shows in St. Louis and Raleigh.

I'll see you next week.