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CUOMO PRIME TIME
Senator Lamar Alexander a No on Upcoming Witness Vote; Interview with Sen. Jeff Merkley (D-OR) on the Upcoming Witness Vote; Interview with Alan Dershowitz on His Impeachment Argument. Aired 12- 1a ET
Aired January 31, 2020 - 00:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[00:00:00]
ANDERSON COOPER, CNN HOST: Make Lamar Alexander's decision tonight has changed the course of the impeachment trial of the U.S. president and added to a chain of other decisions that may affect how presidents behave or misbehave from here on out.
Our impeachment trial coverage continues right now with Chris Cuomo -- Chris.
CHRIS CUOMO, CNN ANCHOR: Appreciate it, Anderson.
I am Chris Cuomo. This is the special late-night edition of PRIME TIME.
One of the biggest wild cards in this impeachment trial has just announced his decision. Republican Senator Lamar Alexander is a no on witnesses. Is that it? Is it over? Is there any move for the Democrats? We've got it all covered. Let's get after it.
Now that it happened, of course, it always kind of starts to make sense. Senator Lamar Alexander from Tennessee, longtime senator, good friend of Mitch McConnell, for him to have said in a big way all alone out by himself, yes, I want witnesses, would have been really damaging to his friend McConnell. So I guess we should have seen this coming.
And now he put out a statement, no, we don't need witnesses. He is the first GOP senator I have heard admit the following, though. That what the president did was inappropriate. It was inappropriate to ask Ukraine to investigate a political opponent. It was inappropriate to hold up aid. However, inappropriate ain't enough. That's what the Republican said in his lengthy statement.
Here's a quote from it. "There's no need for more evidence to prove something that has already been proven and that does not meet the United States Constitution's high bar for an impeachable offense. Constitution doesn't give the Senate the power to remove the president from office and ban him from this year's ballot simply for actions that are inappropriate."
All right. So where does that leave us? Is this over tomorrow? I would suggest likely yes. Why? Because I think the best you get in the vote is 50-50. What happens then? Right question, right people to answer it.
Let's take it to the panel. OK. So, Professor, he says no. Fine. His vote holds tomorrow. It's no. You guys can attack the political analysis, Joe, whenever you want. But let's get the structural analysis first, which is 50-50. Collins votes, Romney votes. Murkowski votes. OK. 50-50. It's a tie. You lose if you want witnesses on a tie. You need 50 plus one. What can they pressure the chief justice to do? What do the rules consider? What does history predict?
MICHAEL GERHARDT, CNN LEGAL ANALYST: They can pressure the chief justice all they like. That doesn't mean they'll get anything.
CUOMO: Can he?
GERHARDT: I don't believe he can. I think the rules define his powers. And the rules very clearly don't give him the authority to cast a tie- breaking vote, and I don't think he's going to claim any inherent power to do it. The Senate has the power to compel witnesses. He doesn't. He's also not a presiding officer in the same capacity as the vice-president is because the Constitution expressly says the vice president can cast the tie-breaking vote and there is nothing that expressly says the chief justice can do that.
CUOMO: And the fact that there's nothing that says he can't is not instructive?
GERHARDT: It is not --
CUOMO: Or it's not defined or not derived.
GERHARDT: He will infer -- he will infer the fact he does not have the power without any expressed grant of it.
CUOMO: It doesn't -- OK. Please.
ELIE HONIG, CNN LEGAL ANALYST: I'm going to disagree a little bit. So as Professor Gerhardt says, the Constitution says ordinarily the vice president can cast and shall cast a tie-breaking vote. And then it says, but in impeachment, the chief justice fills that role. Shall preside. And I think that role, shall preside, means includes cast the tie-breaking vote. And of course, you know that that was done in the Andrew Johnson trial.
CUOMO: But it was controversial and the Senate wound out stopping him from doing it again later on.
HONIG: Right. But he did do it. You know, we have two historical precedents here. And in one of them it was done twice. So it's possible. I don't think it's likely but I think it's possible.
CUOMO: OK. So then let's say this. Let's say it is possible. Asha, if it's possible, we know what the mechanism is. It's now they'll have another vote to overrule his vote, and that has to be a simple majority. The game here is what if that's 50-50?
ASHA RANGAPPA, CNN LEGAL AND NATIONAL SECURITY ANALYST: Yes, I think that the fact that you end up in that loop probably suggests that Professor Gerhardt is right. Because I think then exactly -- does the chief justice then break the tie again, and we're just like keep going back and forth? That would make no sense.
GERHARDT: Then we'd have the long trial everybody worried about.
RANGAPPA: Exactly.
CUOMO: Right. And also, you know --
JOE LOCKHART, CNN POLITICAL COMMENTATOR: You know, I don't think that's likely to happen.
CUOMO: Yes, what do you think happens?
LOCKHART: I think if the chief justice did weigh in, they -- even the people who voted for witnesses would revert to party position and say, it is the Senate's prerogative.
CUOMO: Right.
LOCKHART: I think there should be witnesses, but it is the Senate's prerogative. So I don't think you would have this, you know, domino effect. You'd have a simple vote where they would just go on party lines and this would be over.
CUOMO: It'd be over. Now, if it's over, there is still a consultation phase that happens after this vote. What about censure, Joe? Here's the only reason. I know the easy answer is no way, the president won't allow it.
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They couldn't even argue the best argument, which was he did something wrong but it's not worthy of removal because this president wouldn't let them to acknowledge any weakness. But Lamar Alexander says in his statement it was inappropriate. And that is the nicest word to use. It's always been arguable whether it was removable. But it was wrong and it's something that they know they don't want to see extended or repeated, censure.
LOCKHART: I don't think they'll go to censure, but I think we'll see the inherent dishonesty in the Republicans' approach through the whole thing. Because I think you're going to see senators lining up tomorrow. And to justify their vote to acquit by saying, I don't approve of what the president said, but they remain silent throughout the entire process. And, you know, I think Alexander is just the first, but my guess is you'll see a dozen senators saying --
CUOMO: But they did that in Clinton.
LOCKHART: They did. But there's --
CUOMO: The Democratic -- the senators.
LOCKHART: But this -- let's -- comparing it to Clinton is somewhat absurd. For one thing, all the witnesses testified. There was no -- nothing new. Clinton took responsibility.
CUOMO: Yes.
LOCKHART: Apologized multiple times. Democrats, this is the biggest difference between the two, which is Democrats took the process seriously. I was there. I got the calls from the Senate offices, from the House offices, saying, my guy is going south. What are you going to do? And because they took it seriously, and in the end they took a vote where each and every one of them went to the floor and decried the president's personal behavior. They took it seriously.
Republicans, from day one, did not take this seriously. And you see it tonight, you see all of these people who tonight have gone weekends without saying a negative word, and all of a sudden they're going to find religion and say, we don't approve of this once they've won.
CUOMO: And that's a fair distinction. That is a fair distinction. I was only saying that they voted to acquit the president, but then attached a statement.
LOCKHART: Absolutely.
CUOMO: You know, there was a hard language. So now let's talk about -- so, the law analysis, Professor, and please, step up. I think it's over at that point. I think if you don't have witnesses, I don't know why he would attach McConnell. It's totally at his prerogative to attach a lot of time for debate before the vote. I think they go right into the vote. Is he -- how is he kept from doing that?
Joe, I want your take on the politics of what it looks like, but on the law.
GERHARDT: Well, the rules that were approved at the front end of the trial are what governed --
CUOMO: Right.
GERHARDT: -- the basic structure of it and the organization of it and the allocation by hours. And it also -- it's obviously implicit, but also clear from the rules McConnell calls the shots.
CUOMO: Right.
GERHARDT: He's in the position, he's got the votes that will back him up as the leader, and that's all he needs. So he can narrow the time. He'll put -- my guess is, although, you know, I'm no expert on politics, but my guess is that he'll have a little bit of time for debate just for the show of it, and then I think they'll wrap it up as soon as possible.
CUOMO: But why? You're probably right, but I'm saying, buy why, Joe? If your message is, this is a sham, let's get it done, let's get it done? Why let them debate more?
LOCKHART: Because each and every one in his caucus has their own politics. There are a number of those people up in cycle. And they need to go -- remember, 75 percent of Americans wanted witnesses.
CUOMO: Wanted witnesses.
LOCKHART: Eighty percent in one poll earlier this week. These senators, Corey Gardener, John Cornyn, Martha McSally, Joni Ernst.
CUOMO: Portman.
LOCKHART: Rob Portman. They have to explain to their constituents why they blocked the will of the people. And the way they'll explain this, you saw it in Alexander, which is you're all of a sudden going to see mild disapproval of the president. And it shows what a sham this is. It's a sham from beginning to end. But that's what he's got to give his Republicans a chance to get up there and do their own politics from the floor of the Senate.
CUOMO: Good argument.
Let's take a break. When we come back let's hear the Democrats' side on this. We have Senator Merkley about what they think of this, what they think they can do about it, next.
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(COMMERCIAL BREAK)
CUOMO: Democrats have to be unhappy with the Lamar Alexander announcement of no, meaning he doesn't think you need witnesses in the vote tomorrow. So let's turn to one of his fellow jurors for reaction, Senator Jeff Merkley of Oregon.
Senator, thank you for joining us.
SEN. JEFF MERKLEY (D-OR): Oh, you're welcome. Good to be with you.
CUOMO: What's your reaction to Senator Lamar Alexander saying no need for witnesses?
MERKLEY: Well, it's definitely a big disappointment because 100 senators should stand up to the responsibility of the Senate to hold a fair and full trial. So it's -- it's really disappointing to hear that news.
CUOMO: Looking forward, if it is a 50-50 vote tomorrow, do you think that your caucus will decide to make an argument directly to the chief justice? The rules are vacant in terms of what he can or can't do.
MERKLEY: Well, I think we would. I think we'd look for every possibility to have the Senate fulfill its constitutional responsibility. And there has been one case in history where a chief justice did break a 50-50 vote.
CUOMO: Yes, obviously it was in the Andrew Johnson impeachment.
MERKLEY: Yes, that's right. CUOMO: It was highly controversial. They said he had political
motives. He tried to do it again later in the trial. And he was stopped by the Senate. Here you might get into a situation where they would need a majority vote. And it would be interesting to see whether they would get the majority vote to override the chief justice.
Do you think it's worth the effort to go through that process?
MERKLEY: You know, I think that we have to explore every angle because we took an oath to an impartial justice trial. It's not impartial if you don't have witnesses, if you don't have documents. And Americans understand that. So we have an obligation to at least pose the question to the chief justice, will you weigh in on the side of the constitutional responsibility of the Senate?
CUOMO: Senator Alexander says in his statement that what the president did was inappropriate.
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It was inappropriate to try and get the investigation on an opponent. It was inappropriate to try to hold up the aid in furtherance of that effort. I haven't heard any other Republican say that.
MERKLEY: No, that is -- it certainly is something we have heard privately, but not publicly.
CUOMO: Do you think that that's just where you are with Republicans that they are unwilling to see what this president did as anything more than suboptimal?
MERKLEY: Well, our colleagues are well aware that when you run an operation with Giuliani that goes over the course of a year, and it's designed to put pressure on a foreign government and use state assets, they would impeach a Democrat in a microsecond. They know it's wrong, but they are under enormous pressure to shut this thing down. And it's -- I mean, this whole process we're going to do -- the fact that we go forward without witnesses, without documents, it means the Senate for the first time in history is holding a sham trial.
It means that the presidency is left under the glow of the defense argument saying that the president is above and beyond the law. And by not holding a trial, that statement on the Supreme Court, equal justice under law, they might as well take it off the Supreme Court, especially if the chief justice doesn't weight in on behalf of justice.
CUOMO: Well, you argue for censure tomorrow that the entire body use the language of Lamar Alexander and say what the president did was, instead of inappropriate, wrong.
MERKLEY: Tomorrow after we have the deliberation on the Collins clause to shutdown documents and witnesses, there is supposed to be before that vote a private deliberation among us as senators. And that can be private or by two-thirds can make it public. We're still holding hope that a conversation with our colleagues about the gravity of the situation, the damage it will do, will be an opportunity to persuade a few more to stand up for their responsibility under the Constitution.
If that fails, if it becomes clear that there is absolutely no way to get there, then I think it would be appropriate to entertain a conversation of censure.
CUOMO: Do you think you're in a different situation right now if Article I of the impeachment was bribery? Because you guys have beaten over the head with not naming a crime since this started.
MERKLEY: No, I don't think, Chris, it would make any difference because no matter how it was presented, his defense lawyers would argue that's not the right way to do it. And they would be wrapping us up in technicalities, bribery cases. I mean, everyone understands that this can be viewed as applying pressure, which is extortion, or offering an incentive, which is the aid, which is bribery.
Everyone in the room, all 100 senators, have no doubt this is equivalent to extortion or bribery. But however the House managers have presented it, we have seen complete resistance over the last -- how many days, 10 days it's been. So no, I don't think it would have made any difference. In the end the administration is afraid to open lid on the can of worms we would see if we had documents and witnesses.
CUOMO: Senator Merkley, thank you very much.
MERKLEY: You're welcome, Chris. Thank you.
CUOMO: All right. So, what do we have? Do we have 24, 48 hours? When is this over? What will McConnell do if the vote goes his way tomorrow and it doesn't have to be witnesses? What happens next? Let's talk about the practical implications for this process and the political implications beyond next.
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(COMMERCIAL BREAK)
CUOMO: One statement from one senator, and now we are almost certain of what will happen in the impeachment trial of Donald J. Trump. Why? Well, when Senator Lamar Alexander said, I'm not going to vote for witnesses, that made it much, much more likely that you have a vote that says no witnesses tomorrow, and then they will move on to acquittal, with some deliberation time and an acquittal. If they don't want witnesses, obviously they don't want to convict the president.
Let's bring back in the team. So structurally we were talking about the time for deliberation. You say you need a little bit because it looks better. You're saying that people who have things to explain will want to do that. And then they have the vote. It's over.
Now it's, how does the story get told? Are the Democrats -- I know they're upset about this right now. Are they in better position politically, having had no witnesses and an acquittal of the president? LOCKHART: I think they're in a better position to win back the Senate
because the Senate owns this now. And there are, you know, five or six vulnerable senators in the Republican Party running. It's an open question on the president, though. And we'll have to see how this unfolds because John Bolton is going to speak eventually, and things are going to come out.
I think the thing to look for, though, and I think we can predict will be is, we're going to see Donald Trump on the Super Bowl with Sean Hannity on Sunday. How does he do this? Remember, Bill Clinton went out and took responsibility, and I'm sorry I put the country through this. I don't think we're going to see that on Sunday.
HONIG: I digress.
LOCKHART: And I think that is --
CUOMO: Why am I smiling?
[00:25:01]
LOCKHART: Yes. If Trump takes his normal M.O. here, I think that will turn off everybody but his base. And he has got to figure out a way to win this election to expand his base and win other voters.
RANGAPPA: Can I --
CUOMO: Let's -- yes, but hold on. Let me -- let me get some perspective from Ron Brownstein. He's covered Lamar Alexander for a long time. Knows him well. Help us explain to us in Lamar Alexander thinking what this move was about.
RON BROWNSTEIN, CNN SENIOR POLITICAL ANALYST: Look, I mean, there is -- Chris, there is a Shakespearean arc to this that makes this almost a perfect symbol for what has happened to the GOP in the Trump era.
Lamar Alexander began his political career -- he was elected governor in Tennessee in 1978 to replace a corrupt governor who was accused of selling pardons for cash. In fact Lamar Alexander was sworn into office three days early by, among others, the Democratic Ned McWherter, the speaker of the House, because they feared that the governor, Ray Blanton, would continue to sell pardons. He has always styled himself as someone who was able to work across party lines in the Bush administration as Education secretary.
He ran for president in 1996 against Bob Dole and Pat Buchanan, and was in many ways seen as the most moderate. And then he comes up with this position which is in a key way internally incoherent because he is saying that yes, I believe what the president did was wrong, I don't believe it rises to a level of an impeachable offense. The public should decide, if you believe the public should decide, shouldn't the public have all the relevant information it needs to make a decision about the president's conduct?
I mean, his statement argued for supporting witnesses and supporting acquittal. I don't think it really argued for opposing witnesses. But inevitably, you know, it looks more like finding a justification to end up at the place you wanted to go. But the one important caveat that you noted before that he says the House proved its case, what the president did was wrong, and that I think is going to put a lot of pressure on Martha McSally, Joni Ernst, Thom Tillis, Corey Gardner, do they get -- do they step out and say they agree with that? I suspect very few will.
CUOMO: So you expect the vote tomorrow will be no witnesses.
BROWNSTEIN: Yes. I mean, unless -- you know, on the unlikely -- I don't think -- who is the fourth who is going to vote for witnesses at this point?
CUOMO: Right.
BROWNSTEIN: It's not even 100 percent clear that Murkowski will. I mean, look, the -- you know, this just kind of underlines what we have seen for three years, is that at every critical moment, with the exception of the repeal of the ACA, that the Republicans in Congress have chosen to bind themselves ever more tightly to Trump. You know, as I like to say, every time he breaks a window, they obediently sweep up the glass.
CUOMO: Is this a favor to McConnell?
BROWNSTEIN: And I think that the --
CUOMO: Why would a guy who's going out --
BROWNSTEIN: What's that?
CUOMO: Was this a favor to McConnell? The guy is going out. He's not running again. He's got his legacy. He's seen as a moderate, and then he does this?
BROWNSTEIN: I think it's more than a favor to McConnell. Yes. Partially a favor to McConnell, but also the general feeling in the caucus, right, is that they believes that extending this hurts them politically and that he did not, I think, want to be in the Trump era,. No one has wanted to be, you know, the single person out there apart from John McCain.
CUOMO: Gotcha.
BROWNSTEIN: The late John McCain who turned thumbs down to be the one who says no to the party. And, you know, the idea that they are setting a precedent here, both for future presidents and for the Senate, and for the ability of presidents to stonewall the Congress and to deny them information, it's just astonishing to me how secondary that is in their thinking to this overwhelming pressure to behave in a parliamentary manner and hold the party together at all costs.
CUOMO: Thank you very much. Make your point.
RANGAPPA: Well, I think it was interesting that he mentioned that Senator Alexander was sworn in three days early because the --
CUOMO: Continuing threat.
RANGAPPA: Yes. And I think remember that this Ukraine call happened the day after the Mueller, you know, hearings ended. He takes these things -- Trump takes these things as a victory and gets emboldened. And I think it's not just what he's going to do with Hannity on Sunday.
CUOMO: Right.
RANGAPPA: But what is he going to do on Monday morning when he starts making his phone calls to other foreign countries or looks at what he has ahead?
CUOMO: The idea of what he says on Sunday, I think we have to have a very good guess right now, which is they did me dirty. I'm glad I was able to stop this so it never happens to anyone else again. Because they didn't do this to me, they did it to you.
That is a big point for this president. And I think it's a persuasive one, Elie.
HONIG: Yes. I do. Look, I think it's going to resonate with the base. I mean, everything resonates with the base. But there is also I think a political downside here for the senators who tomorrow will vote no witnesses. As Joe said, the polling is very high, 70 percent, 75 percent in favor of witnesses. Tomorrow some of those senators may have to take a lump, but it's going to be an ongoing lump because we're not done.
CUOMO: True.
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HONIG: More and more is going to come out up until the elections. And every time it does, people can look at those senators, said, but you didn't want to hear this.
CUOMO: They could have limited the exposure actually. It's going to be longer now.
All right. We're going to take a break. Ron, thank you very much for the perspective.
And, you know, this is an interesting thing. So here's what we know now because of Lamar Alexander. They say the people should decide, but they are making a decision -- this isn't about the removal vote. This is about witnesses. They're saying, you should decide, but we're not going to help you do that. In fact, we're going to hinder your ability to do that. We're going to confuse your ability to do that because it's better for us.
You know who else is caught in that spot? Professor Alan Dershowitz. You've been hearing a lot about him now. He is caught right in the middle of this maelstrom and he will be someone remembered for helping reach this conclusion.
We're going to test his position, just one-on-one, no group thing, next.
(COMMERCIAL BREAK)
CUOMO: All right. Professor Alan Dershowitz. Now he says he's only defending the Constitution, not Trump. Doesn't own the facts. Now, let me give you a headline alert, OK. Under scrutiny, he's about to say he does not think a president can do anything to win an election as long as they think it's in the public interest. But the idea that he doesn't own the facts and that he isn't using them and trying to excuse what the president did is a debatable point, and we're going to test his argument on that right now.
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(BEGIN VIDEOTAPE)
CUOMO: Professor Dershowitz, thank you for joining us.
ALAN DERSHOWITZ, TRUMP IMPEACHMENT ATTORNEY: My pleasure. Thank you.
CUOMO: It's just you and me, Professor, one-on-one.
DERSHOWITZ: Good.
CUOMO: All right.
DERSHOWITZ: OK.
CUOMO: Let's establish a starting point, please, Counselor. Is it your position that a president can do whatever they want to secure their reelection as long as they think it is in the good of the people?
DERSHOWITZ: Chris, you know that that's not my position. I started my talk in front of the Senate by saying that Nixon was properly impeached. Nixon committed five crimes, and he did it because he wanted to be re-elected because he thought it would be in the national interest. Of course not. I never said that. I never implied it. I never suggested it. CNN, MSNBC and many of the other networks deliberately and willfully distorted my words.
Let me tell you what I said. What I said was, if the issue is motive --
CUOMO: Well, hold on. Professor, let's establish the record. Let's establish the record for people just so they know point-by-point. And they're going to know when they watch us that you and I have known each other a long time.
DERSHOWITZ: Yes. Of course.
CUOMO: And I know you've never accused me of anything like that.
DERSHOWITZ: Right. CUOMO: So here's the sound bite.
(BEGIN VIDEO CLIP)
DERSHOWITZ: Every public official that I know believes that his election is in the public interest. And mostly you're right. Your election is in the public interest. And if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.
(END VIDEO CLIP)
CUOMO: Now, as somebody who has admired --
(CROSSTALK)
DERSHOWITZ: That's exactly what I said. I said --
CUOMO: It sounds like you're saying, he -- as long as he thinks it's in the public interest, he can do whatever he wants in the name of his reelection.
DERSHOWITZ: That's because you deliberately selected that clip and didn't put it in context. The context was a question generally in that quid pro quo.
CUOMO: But, Professor, be fair. It is you speaking.
DERSHOWITZ: I was responding to --
CUOMO: I how did I get the context wrong? Go ahead.
DERSHOWITZ: Let me explain.
CUOMO: Go ahead.
DERSHOWITZ: Both Congressman Nadler and Congressman Schiff had said that if there is even one element of self-interest in a decision in a quid pro quo context, if the president or any politician, in addition to serving the public interest by doing his act, also had a self- serving interest helping his own election, that would constitute corruption. You can play the clip. You can see they have a clip saying that.
That would constitute corruption. And it didn't matter whether 99 percent of his motive was public interest as long as 1 percent was helping him get re-elected. That would constitute a corruption, crime and impeachable conduct.
CUOMO: Right.
DERSHOWITZ: I was responding to that by saying if that were the case, then Abraham Lincoln could have been impeached because he sent soldiers from the battle field to vote in the Indiana election because he wanted them to vote for his party.
Every politician, is the point that I was making, has self-interest in mind. They have one eye on the public interest.
CUOMO: But that's not the issue.
DERSHOWITZ: One eye on their electability. And -- that's the issue that I was speaking about in response to a very broad argument made by Nadler and by Schiff --
CUOMO: But that is not my understanding of their argument.
DERSHOWITZ: -- that would suggest that Biden could be convicted -- let me -- show the clip. I'll show you the -- I'll tell you what clip it is. Here's what Nadler says. He says, if a man is motivated by 99 percent, perfect, perfect innocent motivation, but just a tiny percentage of it is corrupt.
CUOMO: Right.
DERSHOWITZ: That' enough under the criminal law. I was responding to that by saying in the electoral context, that doesn't apply. In the impeachment context that doesn't apply.
CUOMO: But hold on, so let's -- let's take that piece.
DERSHOWITZ: You have mixed motives all the time when you have politicians.
CUOMO: I know. But, Professor. Professor.
DERSHOWITZ: Let me be very clear.
CUOMO: Professor.
DERSHOWITZ: I do not believe a president can do anything he wants. Yes.
CUOMO: All right, good. Thank you for making it clear. OK. You don't believe a president can do whatever he wants.
DERSHOWITZ: No, no, no. I didn't make it clear today. I made it clear all through my Senate proceedings.
CUOMO: All right.
DERSHOWITZ: All through my debate. And they -- it was not an accident.
CUOMO: Professor.
DERSHOWITZ: It was a deliberate effort to try to destroy my credibility by quoting out of context something --
CUOMO: Professor.
DERSHOWITZ: -- that was intentionally designed to mislead your viewers.
CUOMO: Professor. DERSHOWITZ: Let's be clear about that.
CUOMO: Professor, I'm giving you as much latitude as I can. And it is completely personal and out of respect that I have for you personally, OK? I don't understand your pushback and here's why. You are being taken to task for an argument that seems grossly overbroad because as we both know and as you've taught me over the years, if you have mixed motives, and part of it, even a little part, is corrupt or criminal, it's going to trigger the intent element of a crime. And you say --
DERSHOWITZ: That's my point.
[00:40:01]
CUOMO: You say it's different in an electoral context.
DERSHOWITZ: My point is that you then have to get to the issue.
CUOMO: Hold on, hold on. I will get to the next part but I just want to finish this part for a second, Professor.
DERSHOWITZ: Yes.
CUOMO: You're making it personal. You're saying they're out to get me. They're trying to destroy my credibility. I would not do this interview if it's about your credibility.
DERSHOWITZ: No, no, no. They're out to get the president.
CUOMO: And to shape you. No, it's out to get corruption, Professor. And the problem that you're in is that you are making an argument that does not fit the facts. And you'll say, well, I'm not responsible for the facts. That's other people. But you own the facts by the fact that you're on the team. And we talked about this when you decided to join this team.
They have the facts on their side because there is no proof he did this in the public interest. There is only proof he did it for corrupt intentions, and you know the best proof of it is that he has lied and denied everything he did. So it couldn't have been in the public interest.
DERSHOWITZ: Let me respond, Chris.
CUOMO: I wanted to finish the point. Respond.
DERSHOWITZ: You finish the point.
CUOMO: Yes, sir.
DERSHOWITZ: If this were about the facts, I wouldn't have gotten up and responded. I got up and responded to the general broad argument that if a political figure allows, in his calculus, in the back of his mind --
CUOMO: Yes.
DERSHOWITZ: -- any motivation that will help him get elected --
CUOMO: Yes.
DERSHOWITZ: -- they said that would make it corrupt. My argument was that that's not corrupt. That's not corrupt. That's not like, for example, I'll withhold the funds and I'll send them to you unless you let me build a hotel with my name on it and give you a million dollar kickback.
CUOMO: That's corrupt. That's corrupt.
DERSHOWITZ: That's corrupt. But when you say, I want to help myself get elected the way Lincoln did, and the way Obama did and the way everybody else did, that's not corrupt.
CUOMO: But that's not what happened here.
DERSHOWITZ: That could be something else.
CUOMO: And they're arguing the specific facts here.
DERSHOWITZ: But it's not corrupt.
CUOMO: Lincoln is not a good analogy.
DERSHOWITZ: You're missing my point, Chris. You're missing my point.
CUOMO: I think you're making a point that doesn't match the facts.
DERSHOWITZ: I wasn't arguing against their abstract constitutional arguments.
CUOMO: But they're not making an abstract argument.
DERSHOWITZ: I'm not the fact guy.
CUOMO: I know. But you own the facts because you're on the team.
DERSHOWITZ: They -- let me tell you why.
CUOMO: When you do something in the public interest, you do not lie to the public about what you're doing in their interest. And here he lied about knowledge of the people. He lied about the activities. He subordinated that through State Department channels for his own personal lawyer who worked with shady people and did shady things. So your argument is this professor should not -- this professor.
This president should not be here right now because what he did, sure, it was in his own personal interest. Who cares, everybody politician works in their own interest. But there was nothing corrupt and he was just doing what he thought was good for the people. There is zero evidence that he did anything because he thought it was good for the people. And he denied, lied and defied every aspect of disclosure about this, which has to illustrate, Professor, that he didn't think it was in the people's interest because he would have been bragging and open about that.
DERSHOWITZ: So can I respond?
CUOMO: Go ahead.
DERSHOWITZ: Can I respond now?
CUOMO: A hundred percent.
DERSHOWITZ: If you had made -- if the House managers had made that argument, I would not have stood up obviously.
CUOMO: They did make it.
DERSHOWITZ: It's a factual argument. They didn't make that argument. They did not make that argument.
CUOMO: Where do you think I got it?
DERSHOWITZ: Let me tell you the argument I responded to. Let me tell you the argument I responded to. I responded and I stood up only because the House managers said, if you have any element, any element of self-electability, helping yourself in the election, that's what constitutes the corruption. If they hadn't made that argument -- that argument brought to mind to me Joe Biden. Joe Biden.
If he himself had said 99 percent of why I asked them to fire the prosecutor was in the public interest, but in the back of my mind, 1 percent, maybe it would also help my son who is on the board of Burisma. Under the theory of the managers, that would make Joe Biden into a criminal and impeachable. It was that argument that I was addressing.
I was making the constitutional arguments. And the constitutional arguments inevitably deal not with the particular facts, that was for other people. But with the abstract constitutional arguments they were making. They were making an argument that was dangerously overbroad.
(CROSSTALK)
CUOMO: They have used the word corruption. Every time they make the argument that I've heard it.
DERSHOWITZ: They used the word corruption to describe -- yes, to describe a president who thought that maybe he can help his reelection. That's their definition of corruption. Lincoln was corrupt under that definition.
CUOMO: No. I don't agree with that -- I don't agree with that -- that that's their analysis.
DERSHOWITZ: I gave you an example of Obama -- let me finish, Chris.
CUOMO: Go ahead. Go ahead. Go ahead. Go ahead.
DERSHOWITZ: Let me finish. CUOMO: Go ahead. Go ahead.
DERSHOWITZ: Because I made this point. I said that Obama broke his promise to bomb the Syrian military if they used chemical weapons.
CUOMO: Right.
DERSHOWITZ: He broke that promise. And if there were a memo in the file -- this was the hypothetical part -- that said, you know, he was going to bomb them, but his pollsters said to him that gee, it would really hurt you with some of the hard left, and he changed his mind on that basis. I asked the question, would that be corrupt?
[00:45:05]
The answer is no, of course not. And neither would it be corrupt if any other politician -- and I talked to the senators. And many of them came to me afterward and thanked me for making the argument because I said every public figure --
CUOMO: Of course, they did. And they were all Republicans.
DERSHOWITZ: Always looks to electability and the other side was making an argument that would criminalize that and make it impeachable.
CUOMO: All right.
DERSHOWITZ: That was my argument.
CUOMO: I hear it but --
DERSHOWITZ: I was not responding to the facts because I never agreed to come on the Senate floor and talk about the facts.
CUOMO: All right. I hear you, Professor.
DERSHOWITZ: I agreed only to a role of being a constitutional analyst.
CUOMO: I hear you.
DERSHOWITZ: I laid it all out in my Monday night speech and then I responded to questions last night.
CUOMO: I know, I watched it live.
DERSHOWITZ: And I'm very proud of the role I played. I think I defended the Constitution. I would be making the same argument if Hillary Clinton had been impeached and she were being impeached on grounds of abuse of power or obstruction of Congress. So I'm consistent.
(END VIDEOTAPE)
CUOMO: You see how fair we are? I actually ended this first part of the interview on him, when my response is actually much better. That's how fair I am, or we have to talk about the editing. Now, when we come back in the next hour, we have the rest of it
because what's the problem with the argument there? When you're on the team, you own what the team is about. I know the professor doesn't like that. I now he doesn't agree with it, but it is the perception, which is why he's getting raked over the coals the way he is.
And the bigger point that you'll hear sussed out. Why bring up Obama? Why bring up Biden? Why bring up Lincoln if you're not worried about mitigating the effect of the facts in this case? That's what the professor has to answer for and he will and we'll get a take on what this argument means from the better minds. Next.
(COMMERCIAL BREAK)
[00:50:58]
CUOMO: To the panel. Professor, the idea of the Professor Dershowitz is I'm here for the Constitution. I don't mess with the facts. And by the way, Cuomo, that's a good fact argument. I wouldn't even have stood up if I heard that. Can you have it the way the professor wants it?
GERHARDT: I think it's very difficult. I think he's trying to have it, of course, both ways. And he's also trying to pretend as if he doesn't even recognize the context of where he is making the argument and the ramifications of his argument. He is also changing the facts or hypos when it suits his purposes. So not only is he apparently ignorant of constitutional law and the history of impeachment, but he's basically arguing against a strawman pretty much the entire time, trying to pretend like it's -- the issue that he is facing is really different than the one he is really being asked to defend.
CUOMO: Now the key step back, Asha, is I don't think somebody -- what he's been getting beaten up for he says is unfair. I don't believe that. Whether it's fair or unfair for him to get beaten up, you can judge by yourself -- for yourself by the clip. But he says I don't think a president can do anything just because they think it's in the public interest. However, does he get caught up in the analogies where he seems to be mitigating the impact of what Trump did by mentioning, it just so happens, Democrats and Abraham Lincoln?
RANGAPPA: Yes. So the framers had two twin evils that they were trying to prevent. One was foreign influence, and the second one was self- dealing. And you have both of those in the Trump-Ukraine context. What Dershowitz is trying to do is sort of conflate general self-interest with self-dealing. And they are two different things.
A political calculation of how this might affect my election chances when taking a position is very different than using your power in a way to benefit yourself directly and particularly in secret. I think the flaw in Dershowitz's argument is a political calculation of electability by definition presumes that your actions are public. People will like it or they won't like it, and that's why you care what they think.
CUOMO: Right. RANGAPPA: Trump was doing everything in secret. He was trying to
conceal it. It wasn't about electability or just a general self- interest. He was self-dealing to himself.
CUOMO: Elie, at best, the professor is cherry-picking what the Democrats were arguing overall by saying they said if it's 99 percent for the public and 1 percent for you, the 1 percent for you is actually tantamount to corruption and therefore it's impeachable. I don't believe that that's what they said. Now he'll say well, you didn't play the clip. But I didn't need to because I gave him what is even more fair, which is his own paraphrasing of the clip.
But haven't they always argued no, it was corrupt what he did, not for himself, just like, you know, oh, this is good for me. It's this is bad, and I'm doing it anyway because it's good for me.
HONIG: Yes. I think what the professor is doing there is a little bit of intellectual sleight of hand. And he's trying to conflate the two things that Asha said. On the one hand, making policy decisions. Every elected official makes policy decisions all day. And you do think naturally about will this help me or hurt me. On the other hand, separately, is corrupt self-dealing. And here is a fact that I think draws out that difference.
Through all of this Ukraine scandal, he never went to DOJ. He never went through the Department of Justice. He never went through the established channels that you would go through in order to do something like this. And to me that is so telling. That's the kind of fact that takes this out of the first category, the routine category, the everyday policy decisions, and into the second category of secret self-corrupt self-dealing.
CUOMO: How do you think it plays?
LOCKHART: Listen, you know, I'm the one person on this panel who didn't go to law school and isn't --
CUOMO: So you'll have the best answers.
LOCKHART: So what I'm going to apply here is common sense.
CUOMO: Please.
LOCKHART: Because I hope I still have a little bit of that. His argument is absurd, and the absurdity of the argument is drawn out when he brings up Obama. Now Obama could have decided to make a foreign policy decision based on polling.
[00:55:05]
Presidents do that. I don't know that he did. I don't think he did. But there is nothing inherently criminal or impeachable about that. Politicians make decisions on a number of factors. That's not what happened here. What happened here was he had his own self-interest. He leveraged Americans' national security to go and bribe or extort a foreign country to influence the election and smear Joe Biden. So I don't have to go to law school to know that's wrong. It's just wrong on its face. And, you know, I was taken by the fact that he said, you know, some 15 senators came up to me and congratulated me.
CUOMO: Yes. All Republicans.
LOCKHART: They were all Republicans.
CUOMO: Yes.
(LAUGHTER)
LOCKHART: Because what he did was he dishonestly gave them an out. And they can now all say, well, Professor Dershowitz who voted for Hillary Clinton and is at Harvard says that this is OK and the president can do anything. And he has left the impression and the precedent that presidents can do anything.
CUOMO: I think you're right except for one word. I think he honestly gave him an out. I think he believes that this is under the category of the thousand guilty men go free so the one innocent man, except instead of on the facts, it's on the mechanism that. Joe's right, everything he did was wrong. You're 100 percent right in your analysis. Don't vote for him. But you can't impeach him for (INAUDIBLE).
LOCKHART: Can I make one point on that?
CUOMO: Go ahead.
LOCKHART: Nobody elected Alan Dershowitz. No one voted for him. He's never faced the ballot box.
CUOMO: True.
LOCKHART: I don't really care at this point what he thinks.
CUOMO: Right. But they brought him in.
LOCKHART: They brought him in, and they brought him in to give that out. And it doesn't matter whether he thinks he is telling the truth or not. They used him for that.
CUOMO: Right. He thinks he is telling the truth.
Let's take a break. We'll keep this conversation going. I give the professor that. I've known him a long time. I don't think he did this in bad faith. Whether it had the impact he thought it would, whether it's seen the way he thought it would be seen, that's for you to debate.
All right. Now another for you to decide is the president's fate. Because that's all that's left if impeachment is over is how do you judge the behavior. The question is, will you know enough to make an informed judgment? Stay with us.
(COMMERCIAL BREAK)
