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Senators Question House Managers, Trump Lawyers; Questioning Whether There Should be More Witnesses. Aired 4-4:30p ET

Aired January 30, 2020 - 16:00   ET



MANU RAJU, CNN SENIOR CONGRESSIONAL CORRESPONDENT: He's taking some sporadic notes, but he seems to be taking it all in before announcing his own position.

But in -- behind closed doors at the lunch, Republicans still came out confident that they could beat that vote tomorrow on witnesses and they could end this trial as soon as tomorrow night.

So, there's a confidence in the Republican leadership right now, guys, but uncertain where exactly those last two key votes will ultimately come down -- guys.

JAKE TAPPER, CNN HOST: Very interesting.

And, of course, a big question, Wolf, is whether or not if they get three votes from the Republicans, the Democrats get three votes from the Republicans on whether or not there should be more witnesses, including John Bolton, that would mean that there were 50.


TAPPER: Fifty/fifty.

So let's go to Jeff Toobin right now to find out what happens then.

Obviously, Jeff, there is precedent. In the 1868 impeachment of President Andrew Johnson, Chief Justice Salmon Chase was a tie- breaking vote at least twice.

Do you think Roberts would willing to do that?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, I hate to answer that question with a thud, but if I know the traditions of the Supreme Court as well, I think the chief justice would do the following.

He would say, this is a novel issue. I want briefs from both sides. I want -- I want your precedent, I want your best arguments, because this is an esoteric issue. This hasn't come up at all in a century- and-a-half.

And a century-and-a-half ago, the chief justice went in different directions. First, he did break a tie. Then he didn't. I mean, it is a very important question. And I think Roberts, in the cautious, lawyerly way he has about him, would want the benefit of briefs from people who've looked at this and then make up his mind.

That would mean some kind of delay, maybe a day, maybe a few days more. But I just would be very surprised if Roberts off the top of his head answered one way or another.

BLITZER: All right, let's get another legal opinion from Carrie Cordero.

What do you think?

CARRIE CORDERO, CNN LEGAL ANALYST: Well, I agree that he would not, that the chief justice would not just automatically cast a deciding vote of this historic proportion.

So I think Jeffrey's suggestion that maybe the chief justice would require briefs is a really interesting one, and maybe he would go in that direction.

But I just have to think that, for the senators who are on the fence, who are thinking about which way they might vote, if there are still a few undecided voters out there, that really, what is -- why not called John Bolton? Why not cast that vote? What -- why would they -- if they're on the fence, why would they not want to hear what he has to say, given what we know publicly so far?


TOOBIN: I can answer that.


TAPPER: I think we can all answer it.


TAPPER: But go ahead. But go ahead, Jeff.


TOOBIN: There are a million reasons why don't they want to do it.

CORDERO: From a substantive perspective, not from the -- not just from a political, my own personal interest perspective.

TOOBIN: But, interestingly, they -- one of the arguments that the Republicans have been -- Jay Sekulow made this -- is, it opens up many other witnesses, that at least one witness for the Republicans, Hunter Biden perhaps.

And the idea that, once you start with witnesses, and there are legal issues surrounding all of them, the length of the trial would get so -- would get so out of control, that's an argument against it. I'm not saying it's a good argument, but it's an argument they would certainly make.

TAPPER: Let me bring in Laura Coates, if I can, to get her take on this.

So, Laura, what do you think about this whole idea of, what do they do if there's a 50/50 vote? And, also, as Carrie is pointing out, if you're on the fence, if you're a Lisa Murkowski or a Lamar Alexander, and you're thinking about, maybe we should have more witnesses, Carrie's question is, why not? Why not just fault in the direction of more information?

LAURA COATES, CNN LEGAL ANALYST: Well, that question is becoming more and more rhetorical as we're looking at senators wondering that same very point.

For all the questions that are coming in, a lot of them have to do with things that would be clarified by a witness. Of course, there is precedent for the idea of a chief justice, not, of course, in the Clinton impeachment, but remember chief justice in the Johnson impeachment did break a tie twice.

This is -- they remain controversial today. That is true. But, ultimately, he could weigh in. And, remember, the word precedent also has a lot of import here, because this would be the very first impeachment trial...


TAPPER: Here's Chief Justice Roberts.


TAPPER: I'm sorry -- I'm sorry to interrupt.

Here is Chief Justice Roberts.

CRAPO: Mr. Chief Justice?


CRAPO: Mr. Chief Justice, I send a question to the desk on behalf of myself and Senators Risch, Graham, Ernst, Fischer, Cruz, and Perdue.

ROBERTS: Thank you.


The question from Senator Crapo and the other senators for counsel for the president: How many witnesses have been presented to the Senate at this point in this trial? How many pages of documentary evidence have been put in the record before the Senate in this trial? And how many other clips and transcripts of evidence have been presented to the Senate in this trial?

PHILBIN: Mr. Chief Justice, Senators, thank you for that question.

I think it is important to recognize that -- because the House managers keep talking about the need for witnesses, you can't have a trial without witnesses. You've seen a lot of witnesses. There were 17 witnesses who were deposed and testified in public -- 12 in public, 17 who were in closed hearings below.

So far, you have seen, in these presentations, 192 video clips from 13 different witnesses, so testimony was shown here to you. Just as you would in a trial in an ordinary court, sometimes play the video of a deposition instead of having the witness take the stand, you've seen video clips from 13 different witnesses.

The House managers dramatically wheeled into the Senate a record -- I think it was reported as being 29,000 pages our -- I think the more official number is 28,578 pages. So you've got over 28,000 pages of documents, submitted into the record provisionally in evidence in this trial, subject later to potential objections for hearsay and other evidentiary objections.

You've also heard, here, the arguments that have been presented along with the presentation of both the documentary and testimonial evidence by video clip and by slides that were put up. You've heard argument for up to 24 hours from each side -- we didn't take all of our time, but the House managers argued for over 21 hours, putting on with their video clips and their excerpts from documents in the record, their case.

So at this point, there has been a lot put on here in terms of a trial. You've seen the witnesses in the clips, all of the most relevant parts. You've seen the documents put up in excerpts on the screens.

And as a result of this, the House managers have consistently said, over and over again, before they came here, they said they had an overwhelming case, it was already buttoned down, they didn't need anything else. They said when they got here, that it was proven, every single allegation, every line in each article of impeachment, they said, proven, proven, proven.

We don't think that that's true, but that's their words, that's what they're telling you, that they've had sufficient evidence to make their case. They said, "proven," "sufficient," "uncontested" and "overwhelming" at least 68 times in the proceedings on the floor here.

Manager Nadler told us, just today, that they think they've not only proved it beyond a reasonable doubt, but beyond any doubt because of the evidence that they've already put on in front of you. We don't think that's true, we think we've demonstrated it's not.

But the point is that the House managers have already put on a substantial amount of testimony from witnesses, through their clips of prior deposition -- or hearing testimony. They've already presented to you a large portion of the most relevant documents from those 28,000.

You've heard from the witnesses, you've seen where their testimony conflicts, you can see which is the better or more persuasive version of -- of the facts, you've been able to see what it is that they have in the record that they say was overwhelming, already ready to go to trial. And this -- this proceeding, therefore, has already had a lot of the earmarks of a trial.

So don't be -- don't be taken in by the idea that we can't have a trial here, you can't have a valid proceeding unless they bring someone in here to testify live. Because it wouldn't be just one person. If we started to go down that route, it's not presenting the case that was prepared in hearings below, it's opening up discovery for an entirely new case. And there'd have to be depositions and witnesses on both sides.

And there's no need to do that if they really believe what they're telling you, that it's already overwhelming, it's already proven. There's no need to go on to anything else when you've already seen so much. The House managers had their case -- chance to prepare their case.


And again ,I would also just make the point to bear in mind, what is the precedent set -- what would the precedent be set if this chamber has to become the investigatory body for impeachments that were not prepared properly in the House? Thank you.

J. ROBERTS: Thank you, Counsel.

SINEMA: Mr. Chief Justice?

J. ROBERTS: Senator from Arizona?

SINEMA: I submit a question to the desk for the president's counsel on behalf of myself, Senators Manchin, Senators Murkowski and Senator Collins.

J. ROBERTS: Thank you.

The question from Senator Sinema and the other senators for counsel -- counsel for the president: The Logan Act prohibits any U.S. citizen without the authority of the United States from communicating with any foreign government with the intent to influence that government's conduct in relation to any controversy with the United States.

Will the president assure the American public that private citizens will not be directed to conduct American foreign policy or national security policy unless they have been specifically and formally designated by the President and the State Department to do so?

PHILBIN: Mr. Chief Justice, senators, thank you for the question. Let me preface it - let me answer in several parts. The first is I just want to make clear that there was no conduct of foreign policy being carried on here by a private person.

The testimony was clear from Ambassador Volker and I - I assume that the reference would be to Mr. Giuliani, the President's private counsel - Ambassador Volker was clear that he understood Mr. Giuliani just to be a source of information for the President and someone who knew about Ukraine and someone who spoke to the President. And in fact, it was the testimony that it was the Ukrainians, Andriy Yermak, who asked to be connected to Mr. Giuliani simply because he was someone who could provide information to the President. And Ambassador Volker testified that it was not his understanding - he did not believe that Mr. Giuliani was carrying out sort of policy directives of the President but rather indicating his views of what he thought would be something useful for the Ukrainians to convince the President of their anti-corruption bona fides. So just wanted to make that point.

It is, of course - the President's policy is always to abide by the law - by the laws. And I - I am - I'm not in a position to make pledges for the President here but the President's policy is always to abide by the laws and we continue to do so.

I think it is worth pointing out that many presidents, starting with President Washington, have relied on persons who are their trusted confidantes but who are not actually employees of the government to assist in the conduct of foreign diplomacy.

President Washington relied on Gouverneur Morris to carry messages in certain circumstances I believe to the French, FDR had his confidante who he relied on in certain circumstances to be a go between with foreign powers, and there are a list of others. They were mentioned in some of the testimony during the House proceedings.

So I - I don't think that there is anything - again, as I said, it was not here but there would not be anything improper for a President in some circumstances to rely on a personal confidante to be able to convey messages or to receive messages back and forth from a foreign government that would relate to the President's conduct of foreign affairs. That's not prohibited but within his authority under the Constitution, under Article 2. Thank you.

[16:15:00] J. ROBERTS: Thank you, counsel. The Senator from Illinois?

(UNKNOWN): Your Honor?

J. ROBERTS: Senator from Louisiana?

KENNEDY: Thank you, Your Honor. On behalf of myself and Senator Ernst, I send a question to the desk for Mr. Nadler and Mr. Philbin.

J. ROBERTS: The question from Senator Kennedy and Senator Ernst for both parties, the House managers will be first - "If a President asks for an investigation of possible corruption by a political rival under circumstances that objectively are in the national interest, should the President be impeached if the majority of the House believes the President did it for the wrong reason?"

NADLER: The President, of course, is entitled to conduct our foreign policy, is entitled to look into corruption in the United States or elsewhere, is entitled to use the Department of State or any other department for that purpose.

He is not entitled to target an American citizen specifically nor did he do so innocently here. It was only after Mr. Biden became an announced candidate for president that he suddenly decided the Ukraine ought to look into the Bidens.

And he made it very clear that was - he made it very clear that he wasn't interested in an investigation, he was interested in an announcement of an investigation just so the Bidens could be smeared. So it's probably never suitable for a President to order an investigation into American citizens. If he thinks there's general corruption and an investigation ongoing, the Justice Department can certainly ask a foreign government for assistance in that investigation, but that wasn't done here.

The President specifically targeted an individual with an obvious political motive. And I would simply say that that is so clear, that there's no question that it was a political motive against specific individuals. There are about 1.8 million companies in Ukraine. The estimates were that half of them were corrupt. The President chose one, the one with Mr. Biden.

J. ROBERTS: Thank you, Mr. Manager.

PHILBIN: Mr. Chief Justice, senators, thank you - thank you for the question. I - I think the short answer is no, the President should not be impeached and I think what the - the - the focus of the question was getting at to a situation of mixed motives, which has come up a couple of times here.

If the President, as chief law enforcement officer, head of the Executive Branch is in a situation where there is a legitimate investigation to be pursued and he indicates that it should be pursued, is it possible that he should be impeached for that if there's some dispute about his motives where there is a legitimate basis for that conduct? And the answer is no.

And the House managers themselves, in the way they've framed their case, have recognized this. In the House Judiciary Committee report, they repeatedly say that the standard they are going to have to meet, they're going to have to show that these are sham investigations, these are baseless investigations that they're alleging that the President wanted to initiate, and that they had no legitimate - there was not any legitimate basis for pursuing the investigation. I'm pretty sure that's Page 5 of the House Judiciary Committee report.

And they - they use that standard and they've talked about there not being a scintilla of evidence about anything that anyone could reasonably want to ask about related to the Bidens and Burisma. Because they know that they can't get into a mixed motive scenario because if you have a legitimate basis for asking a question about something. If there is a legitimate national interest there it's totally unacceptable to getting into the field of saying well we're going to impeach the President and remove him from office by putting him on the psychiatrist couch and try and get inside his head to find out was it 48% this motive and 52 the other. Or did he have some other rationale.

[16:20:00] No, if it's a legitimate inquiry in the national interest, that's the end of it. And you can't be saying that we're going to impeach the President, removed him from office, decapitate the Executive Branch of the Government, disrupt the functioning of the government of the country in an election year by trying to parse (ph) out subjective motives and which percentage of the motive was this good motive or some other motive.

Something like that if it's a legitimate inquiry in the national interest. If that possibility is there, if the national interest is there that's the end of it. Thank you.

J. ROBERTS: Thank you, counsel. I haven't specified this before but I think it would be best if Senators directed their questions to one of the parties or both and leave it up to them to figure out who they want to go up to bat. Rather than particular counsels.

Senator for Illinois.

The question from Senator Durbin to the House Managers. Would you please respond to the answer that was given by President's counsel to Senator Sinema's question?

SCHIFF: Senator, Chief Justice, in answer to that question we heard a rather breathtaking admission by the President's lawyer. And it was said in an understated way and so you might have missed it. But what the President's counsel said was that no foreign policy was being conducted by a private party here. That is Rudy Giuliani, was not conducting US Foreign Policy. Rudy Giuliani was not conducting policy. That is a remarkable admission because to the degree that they attempted to suggest or claim or insinuate that this is a policy difference. That a concern over burden sharing or something corruption was a policy issue.

They have now acknowledged that the person in charge of this was not conducting policy. That is a startling admission. So the investigations that Giuliani was charged with trying to get Ukraine announce into Joe Biden into this Russian propaganda theory. They have just admitted were not part of policy. They were not policy conducted by Mr. Giuliani. So what were they? They were, in the words of Dr. Hill a domestic political errand not to be confused with policy. They have just undermined their entire argument even as to mixed motives because the man in charge of it was undergoing this domesticare (ph). And now you've heard a suggestion there.

He was only doing this -- Giuliani was only doing this because he was being asked by Andriy Yermak, that is laughable. Giuliani tried to get the meeting with Zelensky, remember? And he couldn't get in the door, and then he announced that there are (ph) enemies around President Zelensky. And then they go in to that phone call on July 25 and the Ukrainians try to persuade the president, you don't have enemies in Ukraine we're only friends. And what's the president's response? I want you to talk to Rudy.

That's not policy being conducted there, that's a personal, political errand. They just undermined their entire argument. Now, the president's counsel essentially argues in terms of witnesses, if their case is as strong as Mr. Schiff and Mr. Nadler and other say, then why do they need witnesses?

You know, you could imagine the scene in any courtroom in America where before the trial begins defense counsel for the defendant stands up and says, your Honor, if the prosecution case is so strong let them prove it without witnesses. That's essentially what's being argued here.

Well, I will make an offer to opposing counsel who have said that this will stretch indefinitely if you decide to have a single witness. Let's cabin the depositions to one week in the Clinton trial there was one week of depositions, and do you know what the Senate did during that week? They did the business of the Senate.

The Senate went back to its ordinary legislative business while the depositions were being conducted. You want the Clinton model, let's use the Clinton model. Let's take a week -- let's take a week to have a fair trial. You could continue your business, we can get the business of the country done.


Is that too much to ask in the name of fairness? That we follow the Clinton model, that we take one week? I mean, are we really driven by the timing of the State of the Union? Should that be our guiding principle? Can't we take one week to hear from these witnesses?

I think we can, I think we should, I think we must.


MURKOWSKI: Mr. Chief Justice?

J. ROBERTS: The Senator from Alaska.

MURKOWSKI: Mr. Chief Justice, I send to the desk a question submitted on behalf of myself and Senator Schatz, directed to both the White House counsel and the House managers.

J. ROBERTS: Thank you.

The question from Senators Murkowski and Schatz, directed to both parties. Would you agree that almost any action a president takes or indeed any action the vast majority of politicians take is to one degree or another inherently political? Where is the line between permissible political actions and impeachable political actions?

White House counsel will go first.

PHILBIN: Senators, thank you for that question, and I think that hits -- the question really hits the nail on the head. As I mentioned the other day in a representative democracy, elected officials almost always have at least one eye looking on to the next election and how their actions, their policy decisions, their actions in office will be received by the electorate -- and there's nothing wrong with that. That's good, it's part of the way representative democracy works. So having part of your motives being looking towards the next election, looking towards how that will effect electoral chances, that's part of the nature of elected office.

And to start getting in to motives about will this effect my prospects in the next election and calling that corrupt -- and if you've got that as part of your motive looking in to whether you were doing something for electoral advantage and saying that's going to be a corrupt motive, we'll (ph) say that you can be charged for wrongdoing with that or impeached, is very dangerous because there's almost no way to get inside someone's head and parcel out which percentage was one motive, which percentage was another motive.

If you start down that path it's totally amorphous and this is part of the point that Professor Dershowitz was making, and that we've made here a couple of times. This idea of impeaching a president on a theory of abuse of power, depends entirely on analyzing subjective (ph) motive.

Because that's what the House managers have suggested, that we're assuming there is an act on its face (ph) that is legitimate and it is within the president's authority -- it's not on it's face (ph) in any way unlawful or unconstitutional, but solely based on motive we're going to impeach him.

And by saying that, well if it was really directed at the next election that's the corrupt motive, that's a very dangerous path because there is always some eye to the next election. And it ends up becoming a standard to malleable that it really is a substitute for a policy difference.

If we don't like your policy, we attribute it to bad motive and that's actually something that Justice Iredell warned about in the North Carolina Ratifying Convention. That if you base something just on motive because of what he called malignity of party the other party will always attribute bad motives. Thank you.

SCHIFF: I think the answer is yes, that public officials are inherently political ends. I don't mean that in a derogatory term. They run for office, they hold office, they conduct acts as political figures. But if we look at what Hamilton had to say about the core of offenses that warrant the impeachment power, he talked about the crimes being political in character and the remedies being political in character.

Because we're not talking about imprisonment here, we're not talking about taking away someone's liberty. So we're talking about a political punishment for a political crime. Now, what's a political crime. Yes, everyone in office has a political motivation -- but certainly that doesn't mean that we can't draw a line between corrupt activity that is undertaken --