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Trump Impeachment Trial Weighs on 2020 Dems; Democrats Use Trump Tapes to Make Their Case; Republicans Uses Trump's Executive Privilege Threat Against Subpoenas. Aired 1-2a ET

Aired January 24, 2020 - 01:00   ET

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


[01:00:00]

(COMMERCIAL BREAK)

CHRIS CUOMO, CNN HOST: All right. It was another marathon day of Trump's Impeachment Trial. But it was a very different day for the Democrats. There was more strategy. There was more proof and there was more pressing Republicans to own the reality that this President could not be trusted to not abuse his power again. Athena Jones has the highlights.

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REP. JERRY NADLER, (D) HOUSE IMPEACHMENT MANAGER: The most serious charges ever brought against the President.

(END VIDEO CLIP)

ATHENA JONES, CNN NATIONAL CORRESPONDENT: House Manager Jerry Nadler started the day quoting a long list of constitutional experts and invoking the framers of the constitution.

(BEGIN VIDEO CLIP)

NADLER: Abuse, betrayal, corruption. This is exactly the understanding that the framers incorporated into the constitution.

(END VIDEO CLIP)

JONES: Democrats using visual aids to bolster their case that Trump used the power of his office to pressure Ukraine to serve his own political interest, using comments from the President's own allies, notably Attorney General Bill Barr, Alan Dershowitz and member of his legal team and South Carolina Republican Lindsey Graham, one of the jurors in the trial, to make the point that an impeachable offense does not have to be a statutory crime.

(BEGIN VIDEO CLIP)

REP. LINDSEY GRAHAM, (R-SC): I think that's what they meant by high crimes, doesn't have to be a crime. It is just when you start using your office and you are acting in a way that hurts people, you have committed a high crime.

(END VIDEO CLIP)

JONES: Nadler also hitting Trump for blocking witnesses.

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NADLER: If the President had any exculpatory witnesses, even a single one, he would be demanding their appearance here, instead of urging you not to permit additional witnesses to testify.

(END VIDEO CLIP)

JONES: Texas Congresswoman Sylvia Garcia arguing Trump's motivation for demanding the investigations was the 2020 election.

(BEGIN VIDEO CLIP)

REP. SYLVIA GARCIA, (D) HOUSE IMPEACHMENT MANAGER: But when Vice President Biden became the front runner for the Democratic Presidential Nomination and polls showed that he had the largest head to head lead against President Trump that became a problem.

(END VIDEO CLIP)

JONES: Garcia walking the Senators through the investigations Trump sought and why they were baseless in pain staking detail, taking aim at a GOP talking point about Former Vice President Joe Biden.

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GARCIA: Vice President Biden called for the removal of this prosecutor at the official direction of U.S. policy.

(END VIDEO CLIP)

JONES: And using comments from current and former Trump aids to illustrate her point.

(BEGIN VIDEO CLIP)

CHRISTOPHER WRAY, FORMER FBI DIRECTOR: We have no information that indicates that Ukraine interfered with the 2016 Presidential Election.

TOM BOSSERT, FORMER WHITE HOUSE HOMELAND SECURITY ADVISER: It is not only a conspiracy theory it is completely debunked. Former Senator Gregg wrote a piece in the "Hill Magazine" saying the three ways or the five ways to impeach one self and the third way was to hire Rudy Giuliani.

(END VIDEO CLIP)

JONES: Still Lead Manager Adam Schiff sought to make clear the President was in the lead here.

(BEGIN VIDEO CLIP) REP. ADAM SCHIFF, (D-CA): You can say a lot of things about President Trump, but he has not led by the nose by Rudy Giuliani.

(END VIDEO CLIP)

JONES: Driving home the point that throughout the pressure campaign Trump was acting in his own personal interest by again pointing to remarks he made about Ukraine in October, a clip that has aired some half a dozen times in the trial so far.

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DONALD TRUMP, PRESIDENT, UNITED STATES OF AMERICA: Well, I would think that if they were honest about it they would start a major investigation into the Bidens. It is a very simple answer.

SCHIFF: We hear again from this - what his primary object is. And his primary object is helping his re-election campaign, help to cheat in his re-election campaign.

(END VIDEO CLIP)

JONES: Schiff a former federal prosecutor also addressing the reason for all the repetition.

(BEGIN VIDEO CLIP)

SCHIFF: You will see some of these facts and videos therefore in a new context, in a new light, in the light of what else we know and why it compels a finding of guilt and conviction? So there is some method to our madness.

(END VIDEO CLIP)

JONES: And much as they did on day one, the Democrats saved some of their most powerful arguments for prime time.

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REP. HAKEEM JEFFRIES, (D) HOUSE IMPEACHMENT MANAGER: Read the transcript, President Trump says. We have read the transcript and it is damning evidence of a corrupt quid pro quo. This is corruption and abuse of power in its purest form.

(END VIDEO CLIP)

JONES: Athena Jones, CNN, Washington.

CUOMO: All right. Thank you to Athena. Now let's discuss the strategy, the pluses and minus. We've got Hilary Rosen. We've got Michael Gerhardt, Asha Rangappa and Michael Zeldin. Michael Zeldin, I start with you. The idea of anticipating what the defense will say and rebutting it in advance, including showing a cute hypocrisy as with Lindsey Graham saying the opposite now that he said then effectiveness? MICHAEL ZELDIN, ROBERT MUELLER'S FORMER SPECIAL ASSISTANT AT DOJ: I think it was effective. One of the problems Chris that you have here is that in an ordinary trial, the prosecution goes first, the defendant response and then the prosecution goes back with rebuttal. Here there is no rebuttal.

So they have to essentially do their rebuttal in their case in chief or they can try to get it through questions and answers.

[01:05:00]

ZELDIN: So they had to do that now because of the way this is structured, different from a normal trial.

CUOMO: Asha, the idea of talking about the Bidens. They did that today. That was one of the things they debunked about Joe Biden having suspicions that people thought there were suspicions of what he did? Does that open the door to scrutiny of Biden by the defense?

ASHA RANGAPPA, FORMER FBI SPECIAL AGENT: I don't think so because what they were laying out is why - what happened with the Bidens was not, you know, relevant to the President's actions. So I think, again, this was sort of a prebuttal, a way of anticipating an argument that's going to be made and laying out a very clear set of facts that rebuts it. But I don't think that it opens the door in any meaningful way because it is simply not relevant to the basic issue, which is before in this case the Senate.

CUOMO: And Hilary, you are nodding your head yes, but let's take a look at a scenario where the defense comes in. By the way, we don't have the rules of evidence did they open the door, did they not? So that's not what this is about. Oh, you want to talk about the Bidens? Well then let's talk about the Bidens. What about this? What about that? You never investigated any of that. You don't care about any of that. Even though it may be irrelevant to the legal analysis, you are a political expert. How does that play as persuasion?

HILARY ROSEN, CNN POLITICAL COMMENTATOR: Yes. I don't think that the Democrats did this today to protect Joe Biden or to sort of make a political argument on his behalf. I think why they were talking about him so much is first of all they know the Republicans are going to try and deflect the President's behavior by putting bad behavior on the Bidens.

But secondly, because it is emblematic about his political interest because it formed the basis of all of his activities. And, so, I think they were using that as an example of how he used his personal political interest to abuse power, to essentially buttress, you know, the article of impeachment.

CUOMO: They have another day, obviously, the Democrats. Two things they haven't touched yet, Professor you tell me if you think they are worthwhile. On the Biden thing, if I were they, I would preempt and say, they want to bring in the Bidens, which is taunt mount to a legal analogy of being charged with beating up somebody and you want the victim to be put on the stand to show why you didn't like him? That does not remove the responsibility.

The second thing is why did they release the aid when they did? If they were withholding it because of corruption and they never got any satisfaction on any movements to stop corruption, why did they release the aid? How do you deal with those two?

MICHAEL GERHARDT, HOUSE IMPEACHMENT HEARING WITNESS: Well, I think you nicely summarized them. I think the focus on Joe Biden is everybody has been saying so far is distraction. Somebody accuses the President of something wrong he points his finger at somebody else. He says that person is worse and let me tell you why? But the fact that somebody else is bad doesn't make the President innocent.

CUOMO: Does it validate his actions because it shows he didn't have bad intent he had good intent because they are bad.

GERHARDT: No. He's breaking the law. He's abusing power when he does that. There is a right way to do the things and there is a wrong way to do things. He disregarded the law, disregarded the proper channels and he basically was only interested in the announcement of investigations, not the actual investigations. Why because it was going to hurt Joe Biden. That's the personal interest of the President. And that's one of the problems here and that's one of the reasons why he's impeached.

CUOMO: Zeldin, our bootstrap that with the argument about when they released the aid because they argue it both ways, the defense. They say we release the aid, nothing here was wrong. But they've never answered for why it was released when it was if what they wanted was this assurance of Ukraine doing things against corruption that never came? Then what's their answer for why they release the aid.

ZELDIN: There isn't any answer yet in the public domain. We don't know why the aid was released other than to assume that it was released because the whistleblower revealed that it was being held and the Portman the Senator from Ohio went to the President and said, you must do this and he was told that it was illegal to withhold it.

So I think there was reasons that are clear that relate to his having been caught doing what he did. However, can I just go back to the Bidens for a second?

CUOMO: Yes.

ZELDIN: Because the play devil's advocate here. I think that when you talk about the Bidens and whether or not there was corruption in the activities of Vice President Biden and/or with respect to Hunter Biden, I think it does create the opportunity for the defense to say there was a legitimate issue of corruption that the President was allowed to inquire of and, yes, there were procedures with the State Department and blasts from the Justice Department and all that stuff.

But he is the Chief Executive in this unitary theory of government and he can exercise his prerogative in any way he sees fit. You don't have to like the way he does it. This has not to be normal behavior but he is permitted to do that. [01:10:00]

ZELDIN: If he thinks there was corrupt behavior there, he can do what he did? I think you are going to see a defense on the merits of whether or not there was a valid reason for the President to ask the President of Ukraine to do what he did? I think there is a substantive argument that they're going to make about that. I don't know that is compelling but I think that what you'll see.

CUOMO: Asha, what is the rebuttal on the legal side?

RANGAPPA: The legal rebuttal is that that is just wrong as a matter of law. You know, there - when Congress appropriates aid, it can attach, you know, some leeway for the President to act with his discretion in certain circumstances. In this case, he did not have the discretion to withhold the aid for purposes of his own policy reasons, including pursuing corruption.

Ukraine had already met the benchmarks that Congress had included as part of that appropriations package. This was not within the President's power. So simply as a separation of powers legal argument, that would be wrong. They can make it. But it doesn't actually - it actually only underscores why this was an abuse of power because he actually didn't have the legal authority to do that.

CUOMO: All right. Hold on a second. I have more questions, so let me take a quick break. When we come back, I want to flush out a little bit more about what they were laying out today and what the Republicans can do with that when they start in just a couple of days? Stay with us.

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[01:15:00]

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UNIDENTIFIED MALE: So you're saying that it's okay for a President to ask a foreign leader to investigate a political rival and withhold foreign aid to convince him into doing so?

SEN. MIKE BRAUN, (R-IN): No, I'm not saying it is okay. I'm not saying it is a problem and I'm not saying it didn't happen.

(END VIDEO CLIP)

CUOMO: Okay. So there you have a Republican Senator, very interesting. You have all these different lines of avoidance that are going on. That's the main one. That's not what happened. That has been weakened most so far by all of the hearings and certainly the summation of them by the Democrats. What happened is clear.

The fact that the President decided to hold up this aid is clear from e-mails from the agency that was overseeing the aid so it didn't happen doesn't wash. That assumes you have open minds, so let's get back into the discussion. Hilary Rosen, Michael Gerhardt, Asha Rangappa and Michael Zeldin good to have all of you here. That's what you're up against politically. It didn't happen.

Hilary, well and what about all these things, didn't happen? Now, that is not something that you can - that's not an open mind. He is not supposed to be one of the open minds.

ROSEN: It will be interesting to see if the Republicans think can have it both ways. If they can actually say that it didn't happen but yet say well of course the President wanted them to investigate the Bidens, it was legitimate for him to do so.

CUOMO: Right.

ROSEN: They can't sort of make both arguments because if they do that all they're doing really is really making a case look for, well actually, let's see more documents. Let's get more witnesses. So I think that they may end up shortening their case for that reason because they don't want to do much that encourages their own side to want to hear from witnesses, to dare people to bring documents there.

I think we end up just from a political perspective where I did some reporting this afternoon with campaigns around the country, what are people hearing? How is this playing? I think the Democrats have done a good job essentially justifying what they did, right? So there was a lot of substance brought to the table.

So people are no longer mad at the Democrats for wasting the country's time on this. But it is baked in. So Republicans may still support President Trump but people are not complaining that the Democrats are taking a political act here.

CUOMO: What if the Republicans play it the opposite way that's expected and say, well, they put out plenty of proof. Look at all the proof they put out. It was an eight hours of proof all the clips and the things and you know this, and this conversation and that one. I don't need more witnesses, Professor. I've got it. They laid it all out there. Why do I need more of the same information?

GERHARDT: Well, I suppose they could say that. But then the question just becomes what does the Senators ask from this question or saying this thing, think has been laid out? There is no defense of the President laid that out in any of that information. There is no explanation that's legitimate for freezing the aid and all the evidence that the Democrats have produced.

All the evidence, including the evidence that's come out after the impeachment, all of it reinforces the whistleblower, reinforces the fact that the aid was inappropriately frozen for purposes of exerting pressure to get an announcement or investigation against Biden to hurt him politically.

CUOMO: Michael Zeldin, is the strongest argument anticipated by the President's defense going to be, look, you may not like what he did? You may not like how he did it? But he did not have corrupt intent. He thinks the Bidens are dirty and that's why he did what he did? Not removable, period. ZELDIN: That is right. If they're going to defend on the substance, if

they're not going to defend that this is no crime and therefore not an impeachable offense or that the process was so lopsidedly partisan that this should be dismissed. If they are going to defend on the merits, the merits are going to be that the President acted consistent with the national interest in asking the Ukrainian President to investigate the Bidens.

Now what they have to do is articulate what that national interest is because the Democrats have said that he asked for personal interest, not national interest. They have got the burden of saying consistent with national interest and here's what those national interests are, and you don't - just as you said, Chris, you don't have to like the way he does.

He is an unorthodox guy, but he has the prerogative to do it in the way he wants to do it as long as it is consistent with the national interest.

[01:20:00]

CUOMO: Asha, strategy--

ZELDIN: That I think the defense.

CUOMO: Thank you, Michael. Asha, strategy point, if you were on the President's defense team, do you go the full three days or do you play to the, there is nothing here, let's get over this?

RANGAPPA: That's a great point. I think you would make it shorter. I think if you are trying to say there is nothing here, you know, you make, I think, a legal argument, which is what they're going to try to do tomorrow, which is this is just as a matter of law not an impeachable offense.

Now, this is wrong, but it is something that they're going to promulgate because they don't have a defense of the facts. So this is going to be their legal theory. I think on that theory you don't have to mount a huge defense of the fact because you're just basically saying, yes, so what is kind of where I think they will go with it.

CUOMO: What is your thought of this? That at the end of all it, it is a little bit more compelling than some open minded Republicans thought it would be. And they say look, it is not worthy of removal but maybe censure. Has that ever been tried before? What would it mean? And what are its probabilities in the current environment?

GERHARDT: Censure is a resolution or really just a statement that's made that's critical of a President. There had been such resolutions in the past such censures in the past. Perhaps the most famous was the censure of Andrew Jackson for killing or nullifying the National Bank and he did it illegally. So he was censured in the Senate then there was an election.

He helped changed the composition of the Senate and the new Senate expunged the censure. But later we've had other resolutions that are very similar. I think one of the more interesting ones is one that was introduced by Abraham Lincoln against James Polk for initiating a legal war against Mexico.

So there have been such things as these critical resolutions, the censures. It will require some Republicans to say openly the President has done something bad, and that's not something that we typically hear from Republicans.

CUOMO: What we have been hearing that there are some Republicans who may vote to acquit and then attach a statement, which of course we saw during Clinton. A lot of people voted to acquit but then beat him up in a statement. Do you think happens here or they don't fear Hilary o you? They didn't fear Clinton the way they do Trump.

ROSEN: Well, but the President wouldn't like it at all. Here is why it might be smart for the Republicans. We'll see what happens tomorrow because the entire day tomorrow is going to be about obstruction of justice. It is going to be about defying the will of Congress. These Senators have to be looking at this and saying wait a minute, are we condoning forever more as Senators that the White House, whoever is sitting in that White House never has to give us documents again when we ask for it, that the Justice Department can ignore us, the State Department can ignore us.

They have to be a little bit worried about that precedent. So offering something as some discipline would be smart for them to do going forward or frankly Democrats are just going to hammer them, you know, if this happens with a Democratic President.

CUOMO: You know what the problem is? He is still in that calculus he gets acquitted and I think with this President's ear, what he hears is, so it's bad for you if I get acquitted, but it's good for me. And if I get censured, it's bad for me and good for you. I'll take the first choice.

ROSEN: No question.

CUOMO: So we'll see. Hilary, Michael, Asha and Michael Zeldin thank you very much to all of you. All right, so how is this weaving in what's going on here with the Iowa Caucuses? You know some very unusual that we have two such big events going on at the same time.

Three of the top five, six candidates are stuck in Washington because they're Senators for the impeachment trial. How much of a disadvantage of that? The Professor will take us to school next.

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[01:25:00]

CUOMO: The President is on trial for high crimes. He's tweet though make clear he is counting on the strength of the economy to lift his re-election. So the latest CNN's SSRS poll, what does it show us? 55 percent of respondents approve of how he is handling the economy? Now that number has been solid. It would normally mean this guy is in good shape but a closer look at the numbers show what is different about this President.

29 percent of respondents who approve of his economic performance still believe he abused his power with Ukraine. And 23 percent disapprove of his overall job performance. How unusual? How suggestive? Ron Brownstein, I call him the Professor because he's so damn smart is with us.

RON BROWNSTEIN, CNN SENIOR POLITICAL ANALYST: I'm not a real professor. I feel guilty.

CUOMO: Don't worry about it. I'm with you alone for a reason. How does it usually work in terms of an incumbent President's percentage of the vote of those who say the economy is good?

BROWNSTEIN: Yes. Look, if you go back to 2004 with George W. Bush and you look at 2012 with Barack Obama, each time about 90 percent of the people who said the economy was excellent or good voted for the incumbent President. If you look at our polling at CNN, we didn't ask excellent or good in this poll but in the previous poll we did.

And three-quarters of the country said the economy was excellent or good. Normally you would say, okay, the President is cruising. In fact, Trump was drawing only 55 percent roughly of the people who said the economy was excellent or good 35 points below Bush or Obama.

And you see exactly why in the graphic that you put up even among people who are satisfied with the economy an unprecedented share of them are dissatisfied with Trump on other grounds. The fact that nearly one in three people who say that they are satisfied with the economy still say that he abused his power in Ukraine. About one in four says they disapprove him overall. One in four says they're going to vote for Biden.

[01:30:00]

That is, I think, unprecedented. We've never seen that kind of resistance to a president among voters who are satisfied with the economy and it is a direct result of the kind of volatile erratic behavior that is being highlighted so relentlessly, I think, in this impeachment trial.

CUOMO: All right. So that's what it tells us on one level is that people like me, for example, who suggest it seems that no matter what he says, no matter what he does, it doesn't seem to affect him. This is Ron's case for, well, you're wrong. Here is the effect, he's not getting enough of the share of those who like the economy because of all the other stuff.

BROWNSTEIN: Yes.

CUOMO: Then you say one out of four of them would vote for, let's say, Biden. How much of the vote is necessary to put this presidency in doubt for Trump?

BROWNSTEIN: Well, I mean, look, you can see the difference very clearly, Chris, in the distance between the 55 percent who say in the CNN poll and most polls that they approved him on the economy and the 43 percent who approved of him overall. I mean, the delta, you know, the kind of between a safe re-election for the president. And a very precarious one is precisely that group of voters who are satisfied with the economy but don't approve of him.

I mean, there was polling in Michigan, same -- exactly the same pattern in Michigan, a critical swing state. Something like 62-thirds of college educated white women said the economy was excellent or good and only about 35 percent of them said they approve of Trump's performance as president. That is the challenge. And I think he is on a treadmill. It's precisely because such volatile and polarizing behavior has alienated so many of the voters who are satisfied with the economy, who had normally gravitate to an incumbent president. The way to make up for that is to gin up turnout among his base by being more belligerent, more polarizing, you know, calling Nancy Pelosi and Adam Schiff a traitor, even though that compounds his problem in the first place with the people who are satisfied with the economy but don't like the way he comports himself as president.

CUOMO: So it's still -- it's very interesting because it still leaves you kind of not knowing which set of factors will matter more. Oh, so then the impeachment can really hurt him because this is airing all the grievances that this 43 percent has even if they like the economy. But on the flip side, it's also really pissing off his base that may make them come out and super charge his turnout and get him what he wants, which is getting an over delivery of his own base.

BROWNSTEIN: That's right. I mean, look, that's absolutely right. But, look, I would say impeachment is not reducing the minority of Americans who have consistently said they approve of his performance. But it is hardening the opposition he faces among the majority of Americans who consistently say they disapprove. You know, in, again, the CNN polling, 97 percent of the people who disapprove of him overall say he abused his power in Ukraine. In the Pew poll that somebody mentioned earlier, that came out this week, 91 percent of the people who disapprove of him said that he is probably or definitely done something illegal as president.

One of the key visions of the Trump re-election is that they're going to convince some people who say they disapprove of him to vote for him anyway because the Democrat is worse. If 97 percent of them say -- are saying that he abused his power, that hill is getting higher. Not to say it can't be done, not to say he can't squeeze out Wisconsin and Arizona and win the Electoral College even if he loses the popular vote. But the fact is that impeachment is hardening -- is cementing, solidifying, whatever word you want to use, the doubts of the voters most uneasy about him have expressed, and that includes those who are satisfied with the economy but don't like his behavior of values.

CUOMO: You know, I read a commentary today that echoed what I had heard from some Republican strategists who said, you know, in my ideal world, what I'd like to see is this end as quickly as possible and the president not pick a fight with anybody no matter who the nominee is from now until November. And if he just talks about the economy and going strong against our enemies abroad and all the good things that he wants to do going forward, that he would be in great shape. The irony is he can't do that.

BROWNSTEIN: I don't think he can put the toothpaste back in the tube at this point. As I said, he has gone so far down the road of maximizing, you know, the energy among his base at the price of alienating centrist voters who are satisfied with the economy. And I don't think -- the roads have diverged. I don't think he can back to the, are you better off than you were four years ago message.

I think ultimately, his fate will be decided by whether he can, as you say, turn out enough new disaffected blue collar, evangelical non- urban white voters to offset the decline that he's going to face in the white collar suburbs compared to 2016, the potential losses among the blue collar white women who don't like this level of kind of confrontation, and the fact that the electorate is going to be several points more diverse in 2020 than it was in 2016 just because of the change in the population and the aging into the electorate of generation Z for the first time.

[01:35:18]

CUOMO: And another obvious x-factor which Ron points out all the time, will the person who runs against him be able to galvanize and energize and bring those people out who oppose this president? We'll see.

Ron Brownstein, as always, thank you for making us better.

BROWNSTEIN: Thanks, Chris.

CUOMO: All right. So, look, Democrats are fighting to persuade open minds, they're fighting to persuade you to understand what this is really about with this president and why they've done as much as they have, and also, yes, witnesses. But in the absence of that, they are finding clever ways to bolster their case against the president even without the proof that they won. It's the tale of the Trump tapes, next.

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[01:40:09]

CUOMO: In less than 12 hours, if you are on the East Coast, that means later today, the Senate will convene to hear the House managers' remaining opening arguments. This is the last chance for the Democrats in this phase.

We don't yet know if they'll be able to call witnesses. That's why I say that. But they've been using the president's own words against him in case it is all they get. Here is Tom Foreman.

(BEGIN VIDEOTAPE)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: And let me tell you something, Biden's son is corrupt, and Biden is corrupt.

TOM FOREMAN, CNN CORRESPONDENT (voice-over): For Republican defenders of President Trump, the opening arguments are a show and tell from hell.

UNIDENTIFIED FEMALE: And, Senators, we have today provided handouts that you can follow along in our slides.

FOREMAN (voice-over): Hour after hour, Democratic House managers are not only making the case for impeachment, they are stealing a play from Trump, the master showman himself highlighting quotes, charts, unflattering photos, and a torrent of sound bites they think point the way to a guilty verdict. BILL TAYLOR, TOP DIPLOMAT TO UKRAINE: President Trump, through Ambassador Sondland, was asking for President Zelensky to very publically commit to these investigations.

FOREMAN (voice-over): The showy display seems to have caught the president's defense flatfooted, unprepared to counter during media appearances in a similar manner, so the videos played on. Career diplomats who saw and heard things tied to the central allegation that Trump was strong-arming Ukrainian President Volodymyr Zelensky into investigating Democrat Joe Biden and his son Hunter.

DAVID HOLMES, COUNSELOR FOR POLITICAL AFFAIRS, U.S. EMBASSY IN UKRAINE: I then heard President Trump asked, so he's going to do the investigation. Ambassador Sondland replied that he's going to do it, adding that President Zelensky will do anything he asked him to do.

FOREMAN (voice-over): The president himself has been virtually brought in.

TRUMP: Well, I would think that if they were honest about it, they'd start a major investigation into the Bidens. It's a very simple answer.

FOREMAN (voice-over): Pressing other foreign governments to go after his political foes, too.

TRUMP: Russia, if you're listening, I hope you're able to find the 30,000 e-mails that are missing.

FOREMAN (voice-over): And even some of Trump's defenders have been put on the spot, Senator Lindsey Graham made the Democratic play list by insisting years ago that a president does not have to break a law to be impeached, contrary to what the GOP says now.

SEN. LINDSEY GRAHAM (R-SC): -- which is when you start using your office and you are acting in a way that hurts people, you've committed a high crime.

FOREMAN (voice-over): Graham was not in the room for that one. It is a widely end run around Senate Majority Leader Mitch McConnell who's been pushing for a fast trial with no witnesses, no potentially damning documents, and it's drawing scathing reviews from conservative critics.

UNIDENTIFIED MALE: Imagine a movie written and directed by children whose ending you already know, and by the way, it is 20 hours long. FOREMAN (voice-over): But it's also getting grudging respect from some Republicans who know the president's defense team will soon be up.

SEN. KEVIN CRAMER (R-ND): I would hope that they can provide some of that as well. It's not just about the words but how they're presented.

(END VIDEOTAPE)

FOREMAN: Still, almost no one thinks this Republican-controlled Senate will vote to convict and remove this president. So what do Democrats want from this makeshift reality show? All indications are they want to make it really clear to voters what they think happened and really painful for any Republicans who want to vote for acquittal.

Tom Foreman, CNN, Washington.

CUOMO: Our thanks to Tom.

A new excuse for GOP Senators on witnesses, the president is threatening to invoke executive privilege to block that. So, do they want to get caught up in this? And what would be the point if you're going to subpoena and he's going to block it, is that a good legal argument?

Next.

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01:48:14]

CUOMO: All right, we're hearing a little bit of a shift. The mainline Republican talking point is no more about, hey, the House should have done it already. They should have gotten these witnesses if they wanted them. They rushed it. Now, there's a new argument blending its way in. You'll hear it. Just listen.

What if the president invokes executive privilege? He's saying he will. So even if we subpoena it, it will be dragged out forever. So why even bother?

What about that argument? Will that sell? Will that manipulate voices on the right to say, OK, let's not do this? Let's take it to Cuomo's court right now.

Let's see what our legal minds have to say. Renato Mariotti and Jim Schultz. Look at Jim, still upset from earlier on. Me too, brother. Let's get after it again.

All right. So, let's talk about this, Jim. The merits of this argument, you're going to subpoena somebody, the president is going to invoke executive privilege. Now what? What's the argument?

JIM SCHULTZ, CNN LEGAL COMMENTATOR: So it goes back to, Chris, and I'm not going to contradict myself from before. You know, I believe the House made a tremendous misstep in not subpoenaing the witnesses. The fact that a lawyer says, well, we're going to fight it in court so don't bother sending a subpoena, I'm not sure there are too many prosecutors out there that wouldn't send that subpoena anyway. It's not that much work. So I think that was a gross misstep on their part, and I think it's going to come back to bite them in terms of their credibility.

I don't think the GOP should be making a similar argument at this juncture because I think that's a good one as it relates to the House. So I'm going to stick by my guns on the -- on why I think the House mismanaged this from a legal perspective and issuance -- issuing subpoenas and taking it to court. And I don't think the GOP should be making that argument.

CUOMO: All right. Renato, why not?

[01:50:18]

RENATO MARIOTTI, CNN LEGAL ANALYST: Yes, look, it's completely contradictory to the point they had before. And I think what we're seeing on the Republican side is a result in search of an excuse. I mean, essentially, now what they're looking at -- you know, looking for is a reason not to seek subpoenas.

Look, if they wanted to, could certainly force the matter. They have the chief justice of the United States sitting there. They are the-- they, you know, have the power over this president.

If, you know, the president couldn't possibly defy the Republican Senate at this point, I think he would potentially do so at his own peril. So really, that argument is a nonstarter. I agree with Jim that I don't think that they should pursue it. I don't think it's going anywhere.

CUOMO: And, Renato, the argument that --

SCHULTZ: A little bit of -- well, yes.

CUOMO: Hold on one second. I'll come right back to you, Jim, I promise.

SCHULTZ: No, that's fine.

CUOMO: The idea that, you know, we don't want to mess with executive privilege, Renato. We don't want to jeopardize future presidents. We don't want to do that. We don't want it where every time you don't like what a president does, you impeach them and get the documents that you want and produce the people you want to yell at. We don't want to do that. Let's keep the Senate out of it.

MARIOTTI: He hasn't invoked executive privilege. This isn't about executive privilege. He hasn't invoked it. I mean, the reality is if they actually try to pursue this stuff and the president did invoke executive privilege, he'd have to specify what documents, what writings, what words he's invoking executive privilege on.

We actually gain some information in him doing so. He hasn't done that yet. This is essentially about just broad stonewalling by the president.

CUOMO: All right. So conceptual aside --

SCHULTZ: That's on silly right. We're still waiting to hear back from the beginning case from the appeals court so that's not necessarily right either. But I do think that it's a mistake. I think they can credibly make the argument, Chris, that the House didn't do their job, and therefore, it's not our job to go subpoena witnesses and do a fact finding expedition here.

CUOMO: You're a trial court too. Senate is a trial court, not an appellate court as Jay Sekulow said the other day.

SCHULTZ: No, no, no. But a trial court, Chris, I don't know how many lawyers, you know, all of a sudden subpoena new witnesses at the time of trial. That just doesn't happen. You don't put a person on the stand that you don't know what they're going to say.

There's all kinds of -- there's investigations that take place in a grand jury in the criminal context. You learn a lot from those grand juries. You know what these witnesses have been saying --

CUOMO: But you do add witnesses -- you do add witnesses when you couldn't get them --

SCHULTZ: -- and you put them on a stand.

CUOMO: You do add witnesses when you couldn't get them earlier, Renato, right? That happens all the time.

SCHULTZ: You might have but only after you've interviewed them and know what they say, Chris.

MARIOTTI: Of course.

SCHULTZ: And then this instance, they just don't have that.

CUOMO: Well, look, Renato, that is -- both things can be true at the same time, which is the Democrats may not know what they're going to get when they put this person on the stand. But if you aren't available but now you are because of a change in circumstance, here that being the Senate's reach, that could be new information that comes into a trial.

MARIOTTI: Yes, there's no question the Democrats are playing with fire. There's a chance that these witnesses could go south. But I will say it's sort of funny, Trump told these witnesses not to cooperate. These witnesses refuse to cooperate in any way and so now the argument goes, well, you can't put them on because we don't know what they're going to say. I mean, to me, that's just, you know, it's essentially, and like I said, an excuse -- a result that's looking for --

SCHULTZ: Look, it's the House's case to put on. And the House -- yes, sorry.

CUOMO: All right. I hear you on that but, Jimmy, let me make a different point.

SCHULTZ: It was the House's case to put on, and they didn't follow through it.

CUOMO: Right. But they say they couldn't, right, that they were stopped by it and they had an urgency --

SCHULTZ: It's going to take too long.

CUOMO: -- of wanting to do this before the election --

SCHULTZ: This is so urgent, yes.

CUOMO: -- because he'll do it again.

SCHULTZ: The world is coming to an end. I get it, right?

CUOMO: I got a different thing.

SCHULTZ: The Russians are going to invade. We heard all that from Schiff today.

CUOMO: All right. But I got -- well, I know, but that's why we're going through it. But I've got a different point. Forget about the big legal brains for a second, pure common sense. We don't have to be a lawyer to process this. But I have you guys and that's -- you look like regular guys anyway.

Jim, the idea is this, you're ready to vote. You're going to acquit. You've heard enough. We don't even have the answer to whether or not this random Belgian guy who was sending detailed information about where our ambassador was when they were trying to remove her to Lev Parnas through this intermediary named Hyde. We don't even know if the information he was sending was real, really monitoring her movements or just some kind of crazed BS. How can you feel you know enough to vote and that you don't need additional information when we don't even know the answer to that, which is a huge question?

SCHULTZ: Look, in that instance, you're talking about two different things here. You're -- in that instance, you're talking about someone. That is a genuine issue that needs to be investigated by the --

CUOMO: Yes.

SCHULTZ: -- appropriate authorities, and I think we've -- it's been reported that they are investigating that. But in the context of this case --

CUOMO: But how can you decide?

SCHULTZ: Now you're getting way afar.

CUOMO: How is it afar?

SCHULTZ: Right? Remember, House had to do their -- because the House needed to conduct a thorough investigation. They didn't do it. CUOMO: But they didn't know about these guys.

SCHULTZ: They should --

CUOMO: Lev Parnas wasn't allowed to talk to them by federal prosecutors.

SCHULTZ: If we were still taking this through the process, remember, in the Clinton, it was years of investigation that went through and then finally, they found crimes. In this instance, they're making up the crimes as they go because they don't exist. This whole idea of abuse of power --

CUOMO: And it didn't make it with Clinton. They started with Whitewater and ended with a tryst.

[01:55:09]

SCHULTZ: Obstruction of Congress is flat out a fake crime. It's -- that is just -- this is a dispute between two coequal branches of government. It happens all the time. And the fact that someone wants to try to criminalize that is ludicrous.

CUOMO: Renato, just a quick word on the idea that you would be ready to vote about a situation when you don't even know a key piece of information, which is discoverable, and that question is whether or not people connected to Trump were surveilling an ambassador for whatever reason we don't know, how could you vote?

MARIOTTI: Yes, the Senate and the American people deserve to know why people were surveilling our ambassador, whether or not that actually was taking place. And I think we need more investigation. The sad fact of the matter is this trial isn't going to resolve that issue.

CUOMO: All right.

SCHULTZ: Send it back to the House then.

CUOMO: Guys -- send? Boy, oh boy.

SCHULTZ: Send it back to the House then.

CUOMO: Well, who knows, that may happen. But guys, I got to jump.

SCHULTZ: It's not for the Senate to make that determine.

CUOMO: I've got to jump. I'm out of time. Thank you very much.

And thanks all of you for joining us for this special impeachment edition of Cuomo Prime Time. More news, next.

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