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Senate Debate Over Trial Rules And Witnesses Expected To Begin In Open Session Tomorrow; Democrat Senate Leader: GOP Proposals For Impeachment Trial "A National Disgrace"; Laurence Tribe Slams Alan Dershowitz Over Trump Impeachment Defense. Aired 9-10p ET
Aired January 20, 2020 - 21:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[21:00:00]
(COMMERCIAL BREAK)
ANDERSON COOPER, CNN HOST, ANDERSON COOPER 360: Shortly after Republican Majority Leader, Mitch McConnell, issued the guidelines for the Senate impeachment trial, his Democratic counterpoint called the resolution a "National disgrace."
Senator Chuck Schumer said the resolution will make it harder to get witnesses and documents, and he said that McConnell was "Going along with Trump's cover-up hook, line, and sinker."
Senator McConnell's resolution will allow as many hours for opening arguments, as in the Clinton impeachment trial, 24 for each side.
But what's different is those hours will be divided over two days, instead of four days, as they were - for each side, as they were in the Clinton impeachment, meaning the trial may lapse into the - the hours of the evening, where fewer people are awake to watch them.
I'm joined now by someone who's a Senator, will be a juror for the trial, Democratic Senator Mazie Hirono of Hawaii.
Thanks for being here. What do you make of the--
SEN. MAZIE HIRONO (D-HI): Good evening.
COOPER: --this resolution from McConnell? Is it politics?
HIRONO: Of course, it is. So, what he wants is a fast trial, not a fair trial. And so, this is what we have.
We could have motions in the beginning to have witnesses i.e. Bolton. But I wouldn't be surprised if that gets voted down. And, you know, he's doing everything he can. Basically, this whole thing is what I would call a rigged trial.
COOPER: You think it's rigged?
HIRONO: Yes. Just as the President tried to rig the 2020 re-election for himself by, you know, leaning on the Ukrainian President to do his political bidding, using $400 million of-- COOPER: What - why - why is doing it over two days, theoretically 12 hours a day, how is that rigging it?
HIRONO: Well, for one thing, that's not the only part. The part that's really rigging is that we don't have any documents, and relevant documents, and we're probably not going to have relevant witnesses.
COOPER: The - all the information from the House is not automatically entered into the - the Senate.
HIRONO: Apparently not. I mean in--
COOPER: That has to be voted on later on.
HIRONO: Normally, all of that would be included in the record. But, this time, Mitch is going to make us vote on every little thing.
And what hopes maybe they'll - he wants to give them something positive to vote for, such as all of the records should be included from the House impeachment process, so maybe that's something that the Republicans can vote for, as they are very busy voting down everything else that the Democrats would push for.
COOPER: What the President's supporters clearly want is this to be over before the State of the Union.
HIRONO: Yes.
COOPER: Because they feel it would - that probably President Trump could not stop himself from talking about this at the State of the Union, if this was hanging over him.
HIRONO: Well, regardless, he'll find a way to talk about it in a way that is most advantageous to him.
But, yes, I think it's really clear that he wants to be able to say that he's been totally exonerated because if I - I think that the way the Senate is going, he is not going to be convicted.
So, just as he did with the Mueller report, he will run around saying that he was totally exonerated. But, as Speaker Pelosi says, he will always be an impeached President.
COOPER: So, for - if it's 12 hours, each day, are - are - are Senators sitting there for the entire 12 hours? Do you have staff who can, you know, fill your seats--
HIRONO: No.
COOPER: --while you take a break?
HIRONO: Oh, no. We are--
COOPER: You are sitting there.
HIRONO: We are sitting there, yes. COOPER: So, it'll go from--
HIRONO: And I think Mitch's point is he doesn't want the American people to watch this, although one would think that they're going to see snippets, they'll see enough.
And one thing that they're clear on is the majority of American people want a fair trial, which means that they want witnesses. And I think they understand we should have the documents that were denied to the House.
COOPER: But you think that's his motivation to have the American people not see what is going on?
HIRONO: He has many motivations.
COOPER: But that's what--
HIRONO: But they're all political. And they're all designed to help his people, and certainly, they're designed to cover-up what the President did.
And as I watch Dershowitz, I don't know where he comes from, frankly, to - to say that what the President did is not an impeachable, you know, I - I think his position is that "The President did it, so what? Get over it." That's the Mulvaney explanation.
[21:05:00]
So, he - he said, and regardless of whether the President did all of this, it's not impeachable, so basically, you know, we have to ask ourselves, who is the President going to shakedown next?
COOPER: The - the just - the White House just released tonight a list, I'm going to put it on the - the screen right now, Republicans who'll be joining the President's impeachment team from the House, putting their names up there on the screen.
What do you think is behind this last-minute move?
HIRONO: Oh, I haven't seen. Where are the names?
COOPER: It's - it's over there. There's Doug Collins, Mike Johnson, Jim Jordan is on the list, Debbie Lesko, Mark Meadows, Ratcliffe, Stefanik--
HIRONO: I - I don't know what kind of role they're supposed to play because he's already got his team. What are they going to do? Sit there? Are they going to be able to speak? Are they going to be able to jump up and down? What? I have no idea.
But maybe he just feels reassured when he has his major House appointees--
COOPER: Supposedly, they're just supposed to be able to give advice.
HIRONO: He - oh?
COOPER: They're going to continue to give advice?
HIRONO: Give advice?
COOPER: Do you think - I mean it seems like they're the ones who were prominent on television.
HIRONO: Well they certainly were.
COOPER: Yes. So, he's sort of - it seems like he's built a team, which is off - which is actually people who made their names on television, a lot of them.
HIRONO: What the President needs surrounding him at all times are, what I call, "Yes Men and Yes Women." That's it. It makes him feel better. It makes him more assured because he is a - a very insecure person.
So, you got - you know, I was waiting for how he was going to use - use the House people who are totally on his page. And--
COOPER: There you have it.
HIRONO: --now we know.
COOPER: I want to bring in our team here because I think you were kind enough to say that you'd answer questions for them. CNN's Senior--
HIRONO: As long as they don't ask me anything--
COOPER: --Senior Political Analyst, David Gergen, who advised former Presidents--
DAVID GERGEN, FORMER PRESIDENTIAL ADVISER TO NIXON, FORD, REAGAN & CLINTON, CNN SENIOR POLITICAL ANALYST: Yes.
COOPER: --Nixon--
HIRONO: Yes.
COOPER: --Ford, Reagan, and Clinton.
HIRONO: Familiar.
COOPER: CNN Legal Analyst and former Deputy Assistant Attorney - Assistant Attorney General, Elliot Williams, and CNN Political Analyst and Congressional Editor, The New York Times, Julie Hirschfeld Davis.
David, I know you want to.
GERGEN: Senator, I'd like to ask you about the rules that pertain to you and others, the Senate - in the Senate. Can you go on television while this - after this proceedings end, or in the mornings, to talk about what you've seen?
HIRONO: Yes.
GERGEN: You - so you're free to do that?
HIRONO: Yes, I fully intend to.
GERGEN: All right. So, do people--
HIRONO: Because, as it is, the American people are not going to be staying up to 2 - 2:00 A.M.
GERGEN: Sure.
HIRONO: I think part of our responsibility will be to let the people know what we heard, what kind of evidence that they are presenting on the President's side.
GERGEN: So, are these, the people we've just heard about, up on the screen, are they - you anticipate them to be surrogates for the - for the President, who can take to the airwaves?
HIRONO: I expect so.
JULIE HIRSCHFELD DAVIS, CONGRESSIONAL EDITOR, THE NEW YORK TIMES, CNN POLITICAL ANALYST: Senator, I wonder, you know, a lot of this, we - we all are looking forward to a sort of big dramatic trial, oral arguments on each side.
But there is a lot of prerogative in the impeachment rules to go into closed session. And I wonder whether you think that's going to happen a lot.
Will there be a lot of these deliberations, including, starting tomorrow, on how the trial will unfold that will actually happen behind closed doors that the public can't see? And what do you think the implications of that are?
HIRONO: Well I hope not. I hope that the entire trial will be available to view for the public. I don't know on what basis they would close the discussions or the debate--
ELLIOT WILLIAMS, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL, OBAMA ADMINISTRATION, FORMER COUNSEL, SENATE JUDICIARY COMMITTEE, CNN LEGAL ANALYST: So, Senator--
HIRONO: --except that they're trying to hide something.
WILLIAMS: So, you hear a lot about unease from Republicans, unease with the President's behavior, unease with Republicans about Mitch McConnell coordinating with the President of the United States--
HIRONO: Yes.
WILLIAMS: --for the conduct of the trial.
Are you - have you heard from any of your Republican colleagues, have they privately expressed to you any of these things that we're hearing, about this unease about Mitch McConnell or - or the President or at all?
HIRONO: My colleagues often express, in part private, their unease. But, you know what? I say what does that matter if they're going to be vote - they're going to be voting totally on the line with them?
And they are enabling, by the way, by supporting Mitch McConnell, and what he's doing, they're supporting the cover-up, and the inability of us to call on relevant witnesses, and to obtain relevant evidence.
WILLIAMS: So, if they don't, and if you think it's not a fair trial, at the end of the week, look, you spent - I think it was three terms in the House, do you think the House should re-open, in light of everything we've seen this week, over the last couple weeks, some big allegations, do you think the House should re-open proceedings and call witnesses and ask for more documents now?
HIRONO: I don't see why that would get them anywhere different than where - where they are now because the President has engaged in a total stonewalling of the House in their efforts.
So, as far as I'm concerned, they had 17 witnesses in spite of the fact that the President didn't want anybody to testify. And these witnesses corroborate what the President was up to, and what all his people were up to.
And so, as far as I'm concerned, unless the President mounts a defense, which is more than saying "Oh, well anything he does, that's not impeachable," that's not a defense. That's just some sort of argument not - not based on any evidence.
So, I'm waiting for the President to mount a defense. Otherwise, we are left with the 17 witnesses, what they testified to, and the evidence that was produced by them.
COOPER: Do you have any hope that there actually will be witnesses called after seeing the - the rules that have been put out?
HIRONO: Well, apparently, there's going to be some opportunity, in the beginning, for Chuck Schumer to get up and ask that, for example, John - John Bolton be a witness.
[21:10:00]
But if Mitch wants to just stifle that, he can just move to table the motion. And we can - you know, but that forces his Republican Members to vote to table any witnesses coming forward.
WILLIAMS: Does - does that mean we end up with a deal for Hunter Biden in exchange for a John Bolton or something like that?
HIRONO: I don't know that Chuck is going to make that kind of a deal.
WILLIAMS: Right.
HIRONO: But what I anticipate is that Chuck would make a motion for Bolton that would be turned down. And then, maybe they may make a countermotion amendment to - to - the
McConnell motion, to proceed, that would be Hunter Biden, and that would probably be voted up. I don't know.
May - they may vote it down because it does look pretty weird that somebody who actually was there in the White House, who called this whole thing a drug deal not to be allowed, and then they're going to have a Hunter Biden, who doesn't even have anything to do with what the President did, and they're going to go ahead with that kind of a witness, see that - that just - that doesn't look good for them either.
WILLIAMS: I mean, legally, that's an important point. Hunter Biden's testimony has no legal bearing--
HIRONO: For some.
WILLIAMS: --on whether the President's conduct was improper.
HIRONO: No.
WILLIAMS: Right?
HIRONO: And, up to now, the Republicans have yet to focus on the President's conduct.
They have been tossing out, you know, "What about this? And what about Hunter Biden? And what about all - all of this? What about the - the scheme that it's actually the Ukrainians and all that?"
You know what? But they have not focused on the President's actions. And what it's going to come down to is that the President did it, he himself says he did nothing wrong, he did it, so what?
COOPER: Senator Mazie Hirono, appreciate your time. Thank you very much.
HIRONO: Thank you.
COOPER: Everyone else is going to stay with us, so much more to talk about, including the witnesses Democrats hope to call, who they are. What do Democrats actually hope to learn, and will they actually ever hear their testimony?
Also, President Trump's legal strategy, you heard Alan Dershowitz defend the President a short time ago, rebuttal from a fellow Harvard Law School professor, Laurence Tribe, just ahead.
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COOPER: President Trump's defense team and Senate allies are reportedly working on scenarios to prevent any testimony from John Bolton, should Democrats win enough Republican votes to call witnesses. The Washington Post is reporting that while the President's allies in
the Senate express confidence this is not going to happen, they nevertheless are preparing a plan B.
One option is moving Bolton's testimony to a classified setting that would first come after battles in court. Bolton is obviously just one of the witnesses the Democrats hope to call.
Details on that now from CNN's Sara Murray.
(BEGIN VIDEOTAPE)
SARA MURRAY, CNN POLITICAL CORRESPONDENT: Democrats are clamoring to see these four men in the hot seat, testifying before the Senate impeachment trial.
John Bolton, Mick Mulvaney, Robert Blair, and Michael Duffey, all have first-hand knowledge of President Trump's attempts to withhold security aid to Ukraine, allegedly in exchange for investigations into Trump's political rival, Joe Biden. They all refused to cooperate with the House impeachment inquiry.
But Bolton, the former National Security Advisor recently pulled an about-face, saying he would willingly testify before the Senate, while at the White House, Bolton was vocal about his concerns over how the Ukraine matter was being handled.
(BEGIN VIDEO CLIP)
FIONA HILL, PRESIDENT TRUMP'S FORMER TOP RUSSIA ADVISER: I had to go to the lawyers, to John Eisenberg, our Senior Counsel for the National Security Council, to basically say "You tell Eisenberg," Ambassador Bolton told me, "that I am not part of this, whatever drug deal that Mulvaney and Sondland are cooking up."
(END VIDEO CLIP)
MURRAY: Also on the witness wish-list, Acting White House Chief of Staff, Mick Mulvaney, who openly admitted the President withheld aid in exchange for investigations into 2016.
(BEGIN VIDEO CLIP)
MICK MULVANEY, ACTING WHITE HOUSE CHIEF OF STAFF: The look back to what happened in 2016 certainly was - was part of the thing that he was worried about in corruption with that nation, and that is absolutely appropriate.
Get over it. There's going to be political influence in foreign policy.
(END VIDEO CLIP)
MURRAY: Mulvaney tried to walk that back later. Emails also show Mulvaney asking his Senior Adviser, Robert Blair, back in June, "Did we ever find out about the money for Ukraine, and whether we can hold it back?"
Blair responded, "It was possible, but expect Congress to become unhinged." Blair said it would also be seen as more evidence Trump was pro-Russia.
Blair was the one who delivered the message to Acting Office of Management and Budget Director, Russ Vought that the aid needed to be held up. But it fell to Michael Duffey, OMB's Associate Director of National Security Programs, to carry out the order.
Emails released, as part of a lawsuit, revealed that 90 minutes after President Trump's controversial call with the Ukrainian President, on July 25th, Duffey told officials at OMB and the Pentagon to withhold security aid for Ukraine.
He seemed to know it could cause concerns. Given the sensitive nature of the request, Duffey wrote, "I appreciate your keeping that information closely held."
As the hold dragged on, and Pentagon officials sounded the alarm that the freeze could run afoul of the law, Duffey told a top Pentagon official, on August 30th that the demand was coming from the top, clear direction from POTUS to continue to hold.
Sara Murray, CNN, Washington.
(END VIDEOTAPE)
COOPER: Back now with our Political and Legal team.
David Gergen, how do you think this is going to play out because Democrat, as you heard from Senator Hirono, Chuck Schumer, tomorrow, is saying he's going to offer a whole series of amendments, dealing with witnesses and documents, but not sure that's going to amount to really anything. They might just delay that all until afterward.
GERGEN: I think that Mitch McConnell has - plays hardball, knows how to do this. And I think he'll wind up succeeding on most of the - of the rules he's setting forward. I imagine there may be one or two things that get changed by with - with some help from Republicans.
But, at the end of the day, I think this - the larger point here is that if - if McConnell and Republican allies succeed in keeping out new witnesses, keeping out documents, cramming this through in two days, this new thing about having to admit - vote to admit the evidence, which we did not have in the Clinton case.
If all of those things happen, I think we can - historians will say we've had three big cover-ups, in the government, in the last 60 years. One was the Pentagon Papers, another was Richard Nixon, and another one is this.
The difference is going to be that this one is succeeding. The other two failed. They came apart.
COOPER: And-- GERGEN: Rick will disagree with that.
RICK SANTORUM, (R) FORMER U.S. SENATOR, PENNSYLVANIA, CNN SENIOR POLITICAL COMMENTATOR: I'm going to disagree with that because you know what if--
GERGEN: Sure.
COOPER: Well--
SANTORUM: --if the Democrats are serious about this, they can go to court, and they can force the President to do what - what every President has had to do in the past, which is defend their position in court.
They have chosen not to do that. They still have that option that they'll get to do.
GERGEN: But they've done that. But they've done that.
SANTORUM: So there's no cover-up.
GERGEN: Bu they've done that - no, no, no.
SANTORUM: There's no cover-up--
COOPER: But wait. But haven't they done that on specific issues in the past, specific people they want to testify? The President has - has made a blanket--
SANTORUM: They've been--
COOPER: --non-cooperation.
[21:20:00]
SANTORUM: Look, the - the - the breadth of Executive privilege is still Executive privilege.
I mean that - and - and that's why you go to court. And the court might say, you know what, the - in certain areas, we're going to - we're going to let - let it stand. And other areas, we're--
WILLIAMS: But - but, you know, but you're saying--
SANTORUM: --we're not going to hold it up.
WILLIAMS: --this is what's every President has done. What every President has also done is comply with subpoena.
GERGEN: Exactly.
WILLIAMS: And - and - and--
SANTORUM: No.
WILLIAMS: Yes.
SANTORUM: No.
WILLIAMS: And - and provide documents to Congress.
SANTORUM: No.
WILLIAMS: What the President has done is there are nine witnesses--
SANTORUM: President Obama didn't.
WILLIAMS: What are you talking - I worked--
SANTORUM: They went to court. They went to court. They went to court and you lost, and then you - then you turned them over.
WILLIAMS: The - the Obama administration respected that Congress had a right.
SANTORUM: Of course, they do.
WILLIAMS: What - what the President - this President's made clear, from the beginning--
SANTORUM: But the--
WILLIAMS: --that he doesn't.
SANTORUM: OK. So--
WILLIAMS: So--
SANTORUM: So, you respected they have the right and then you just chose not to give them.
WILLIAMS: There was a--
SANTORUM: Until you went to court and they--
(CROSSTALK)
SANTORUM: --forced you to.
WILLIAMS: --there was a legitimate oversight dispute. I was there at the Justice Department and the Department of Homeland Security. There was an oversight dispute.
SANTORUM: Well this--
COOPER: There is a difference between doing things on specific issues and a blanket "We are not going to cooperate."
WILLIAMS: The President has said from the beginning of the--
COOPER: Isn't that--
SANTORUM: I--
WILLIAMS: --administration that he is not going to comply with oversight requests, not going to--
(CROSSTALK)
SANTORUM: So, it make - it should make - it should make your case an easy case to go to court and get the court to--
KIRSTEN POWERS, USA TODAY COLUMNIST, CNN SENIOR POLITICAL ANALYST: But the bigger--
(CROSSTALK)
WILLIAMS: Or the President could have just complied from the beginning.
POWERS: But the bigger thing is, in impeachments, they have cooperated.
GERGEN: Yes.
POWERS: So - so let's not--
SANTORUM: It's not like there's a long history.
POWERS: --let's not - but let's not go - but when we've had impeachments, we've - there has been cooperation.
And so, you keep going back to this every time, I feel like we just had this conversation, it's Groundhog Day, over and over again, where you just keep insisting that the only way these people could testify is through people going to - the Democrats going to court when we know that's not true.
SANTORUM: Because that is--
POWERS: But we - but other Presidents haven't made--
SANTORUM: They could - of course, they could volunteer, and they comply, but they're not going to.
POWERS: --but the Presidents didn't make, you guys go to court. President Clinton instead just told people to testify and to cooperate. So, Donald Trump is the one who's holding this up.
SANTORUM: Because there was no disputing the facts on the part of President Clinton really.
POWERS: There's - there - but there was no - but - but the point is Donald Trump is the one who's holding this up. These people could testify very easily. We could get the facts. We could have - and again, if - if they could exonerate him, they would be testifying.
GERGEN: And the - the iconic figure of the Republican Party, Ronald Reagan, Iran-Contra, "Send up the documents, send up the witnesses." How can you just sort of dismiss that and sort of like there's precedent after precedent of Presidents who've tried to cooperate, and especially on serious things when the very - you know, the very country is - has some risk.
SANTORUM: Yes, I - I - I think what - what you're finding here is I would agree. Would I - would I like the President to cooperate, in a perfect world? Yes.
GERGEN: Yes.
SANTORUM: But this has been anything but a perfect world in the way they have treated this President over the past three years.
GERGEN: They--
SANTORUM: They have gone after and tried to impeach him from day one. And so, I - I think there is a legitimate ground to say, "You know what? You guys have been coming after me. I've - I complied with all the Mueller requirements. There was no"--
COOPER: Well actually he didn't.
SANTORUM: --"I followed." Well complied with - I - I - they didn't--
COOPER: He didn't go and testify.
SANTORUM: He didn't--
COOPER: I mean, he didn't go talk to Mueller.
SANTORUM: Well he didn't go. But he did respond - responded to questions, and Mueller agreed as that is satisfactory. So - so he did comply. He was very open. And where did that get him? It got him two years of hell. And he's saying "You know what? Enough is enough."
POWERS: But also, they didn't try to impeach him from day one. That's just not true. They did - they didn't try - I mean that - that's just a completely made-up thing.
GERGEN: He--
SANTORUM: How many - how many impeachment motions were there?
POWERS: The fact that someone said that they wanted to impeach him is not the same thing as "I'm trying to impeach them." Nancy Pelosi, who is the leader of the Democrats--
WILLIAMS: Right.
POWERS: --did not want to impeach him.
DAVIS: But what is extraordinary, I think, about these trial rules, and I'm curious, your opinion, is this idea that the House inquiry, which took place over a matter of months, lots and lots of witness testimony, lots of documents that they got, and some they didn't get, is not even going to be entered into evidence--
SANTORUM: Yes, I think--
DAVIS: --at the outset?
SANTORUM: Yes.
DAVIS: I mean, what - how is that - is that just a - a move to delegitimize what they've done?
SANTORUM: No, I think it's--
DAVIS: Or why should that take a separate vote of the Senate?
SANTORUM: I think it's a move to say if we're going to have a trial then let's have a real trial. And - and here's what I think is going to - I think, just like in 1999, the - the move was "Look, let - let the Managers on both sides make their case." And--
DAVIS: But in 1999, they admitted the--
SANTORUM: Yes. If I can--
DAVIS: --evidence.
WILLIAMS: Yes.
SANTORUM: --if I can go forward?
Again, there wasn't a real contesting of facts with - with the Clinton impeachment. Here, there is a huge contesting of fact, and the methods on which those facts were - are - are - were - were developed.
WILLIAMS: Yes.
SANTORUM: And so, here's what I think is--
WILLIAMS: Yes--
SANTORUM: --just to cut to the chase.
WILLIAMS: Appreciate it.
SANTORUM: What I think is going on here is that the President that - Mitch McConnell is saying "If we're going to go, and have witnesses," remember, the vote on witnesses is first, "If we're going to have witnesses, then we're going to look at this evidence.
We're going to look at all the way this evidence was compiled, whether it's hearsay, whether it's inadmissible, and we're going to have Members take votes on all of this evidence, and where it came from, and whether it's admissible or not."
WILLIAMS: But here's the question for you. Where - what are the facts that are in dispute? You're saying that there are facts that are in - now, the con-- SANTORUM: I think there are a lot of facts in dispute.
WILLIAMS: --the conclusions that we choose to draw from the facts are in dispute. But the President himself acknowledges what happened on the call. We know what happened from OMB. We know what - you know, that the $391 million was held up.
Now, the question is was it legitimate or proper. But I don't think anybody's disagreeing about any of the facts here.
SANTORUM: Well I just--
WILLIAMS: So the - there's a legal dispute as to whether the President ought to be impeached for it. But there's no fact--
SANTORUM: I disagree about that.
WILLIAMS: --that - that - that what the facts are.
COOPER: I got to get a break in, I'm sorry. Well we're going to continue it. Thanks everybody.
Harvard Law Professor, Laurence Tribe, who has decidedly different opinion from his colleague, Alan Dershowitz, whom you heard a short time ago, about the validity of the Senate impeachment trial, joining us ahead.
[21:25:00]
(COMMERCIAL BREAK)
COOPER: Harvard Law School Professor, Laurence Tribe, is arguing that the Senate impeachment trial, about to get under way, is perfectly valid.
In an op-ed for The Washington Post, he says that allegations that the Senate proceedings are unconstitutional because President Trump hasn't committed a crime are flat-out wrong.
"The argument that only criminal offenses are impeachable," he writes, "has died a thousand deaths in the writings of all the experts on its subjects, but it staggers on like a vengeful zombie."
One of the President's attorneys, Harvard Law School Professor Emeritus, Alan Dershowitz, plans to argue that an impeachable offense must be a crime. But back in 1998 that was not the case.
Professor Dershowitz said back then there did not have to be a crime in order for impeachment to be constitutional.
Here's how he explained himself, earlier tonight, on the program.
(BEGIN VIDEO CLIP)
ALAN DERSHOWITZ, PART OF PRESIDENT TRUMP'S IMPEACHMENT DEFENSE TEAM: I've done all the research. COOPER: OK. So, you didn't do the research back then?
DERSHOWITZ: It's 22 years ago.
COOPER: Got it.
DERSHOWITZ: I didn't do the research back then.
COOPER: OK.
DERSHOWITZ: Because that wasn't an issue. I've done the research now.
COOPER: So, you're wrong, OK.
DERSHOWITZ: I wasn't wrong. I am just far more correct now than I was then.
JEFFREY TOOBIN, FORMER FEDERAL PROSECUTOR, CNN CHIEF LEGAL ANALYST, STAFF WRITER, THE NEW YORKER: OK. What - what--
COOPER: What!
DERSHOWITZ: I said you didn't need a technical crime, back then.
COOPER: OK.
TOOBIN: But--
DERSHOWITZ: I still don't think you need a technical crime.
COOPER: OK.
[21:30:00]
DERSHOWITZ: And I think your viewers are entitled to hear my argument without two bullies jumping on everything I say.
TOOBIN: Oh, come on, Alan.
COOPER: Oh!
TOOBIN: Please!
DERSHOWITZ: And trying to pinpoint and nitpick on what I said.
(END VIDEO CLIP)
COOPER: Now, Professor Tribe's viewpoint, he's Co-Author of "To End a Presidency: The Power of Impeachment," I spoke to him shortly before airtime, obviously before that sound that you just heard from Professor Dershowitz.
(BEGIN VIDEOTAPE)
COOPER: Professor Tribe, you've been critical of - of your former colleague, Alan Dershowitz, writing on Twitter that he quotes, is not to be trusted, end quote, and that he's, quote, losing it.
Is your issue with him that he's defending the President, or he says he's defending the Constitution, or is it his legal arguments, or - or - or both?
LAURENCE TRIBE, HARVARD LAW SCHOOL PROFESSOR, CO-AUTHOR, "TO END A PRESIDENCY: THE POWER OF IMPEACHMENT": It's his legal arguments.
He's perfectly entitled to defend the President, although I don't like that he pretends he's defending the Constitution, instead of the President. He's not the Constitution's client.
But I don't want this to make, you know, to be a feud with Alan. The stakes here are enormous. We've got a President who was shaking down a foreign government for his own benefit, for his own re-election.
He was using taxpayer money to do it. He's engaged in the kind of abuse that Alexander Hamilton, James Madison, any of our Framers would have said requires that we end the Presidency, especially when the abuse goes to meddling in the next election.
And when Alan Dershowitz, or anybody, although I don't know anybody else who really does it, comes up, and says, "Well it's - it's an abuse, but it's not a crime or crime-like. And therefore, we can't - can't remove him for it," that really - that's disgusting.
There's no basis in the Constitution, or in our history, for that. It means that if Abraham Lincoln had said "Oh, hell, let the South go, or give it to some, you know, let's give it to France," that wouldn't have been a crime. But surely, it would have been impeachable.
And, Alan, in his own book--
COOPER: Because then--
TRIBE: --you know, his own book, gives the example of "If Putin decided to give Alaska - if - if Trump decided to give Alaska back to Putin, that might be terrible, but it wouldn't be impeachable," well that is just BS.
And I think it's really sad that the country pays attention to a - to these ludicrous arguments. They wouldn't pay attention but for the fact that he's a star on Fox News. And he used to do a lot of good criminal defense work.
Well that's fine, and he was a great teacher, and he used to be a good colleague. But, right now, he's selling out, basically, selling out, I don't think, for money, but just for attention. And - and that's really sad.
COOPER: You think he wants to be in the - in the think of it, and that's - that's what's at the heart of that?
TRIBE: Yes, it sure looks like it. I mean he really gets off on - on being, you know, in the - in the spotlight, and it's all very nice to want to be in the spotlight. But, when the future of the country and the Constitution is at stake, where are your values?
You know, it just - it's not - it - it really is sad. It's sad to me.
COOPER: He - the argument that he's making is that and - and that the - in the - the President's brief, it makes as well, is that both the articles of impeachment, both of the charges, essentially, are - are - are not in the Constitution as impeachable offenses that - that obstruction of Congress is essentially made up and - and that, you know, that the other - that the other abuse of power is not - is not an impeachable offense.
TRIBE: Well I know he says it. He can say it a thousand times. He can stand on his head and say it. It doesn't make it true.
The fact is that high crimes and misdemeanors was a phrase that the Framers took from England, and from the Colonies, and it meant abuse of power. That's what it was.
There are things the President can do that don't look like any ordinary crime because only the President can do them, like giving away part of the country to - to Putin, or - or letting part of the country float out to sea, I mean, or, you know, the Supreme Court has given examples of things that aren't crimes, like abusing the pardon power that are reasons to remove a President.
And if a President were to say that the Department of Justice will from now on not go after anybody who has voted for me, for Donald Trump, that wouldn't be a crime, but it would sure be an impeachable offense, because it's an abuse of power.
COOPER: What about the argument that Dershowitz and - and the President seems to be making that - that this will set a precedent that would quote, fundamentally damage the separation of powers, as it says in the brief, and would essentially open the door to future Presidents being impeached for protecting the prerogatives of the Presidency?
TRIBE: Well the separation of powers is the very thing this President has attacked over and over again. He takes money that was appropriated for the military, and seizes it for his wall. He doesn't respect the separation of powers.
[21:35:00]
And this argument that when the President stonewalls, refuses to take any effort to cooperate with Congress, even when it's exercising its power of oversight in impeachment, the argument that that is perfectly OK, because there's such a thing as Executive privilege, just is constitutionally ignorant.
COOPER: Professor Tribe, I appreciate your time, thank you.
TRIBE: I appreciate yours, Anderson.
(END VIDEOTAPE)
COOPER: Up next, the historical significance, what's going to start to take place tomorrow on the Senate floor? We'll be right back.
(COMMERCIAL BREAK)
[21:40:00]
COOPER: Again, our breaking news, Senate Republicans revealing how they would like the impeachment trial of President Donald Trump to play out, the trial officially begins tomorrow.
However you think the outcome will be it cannot be understated just how historic this moment is for the nation. It's only the third time a President has been impeached in the almost 250-year history of our country, joining a list that includes former Presidents Bill Clinton and Andrew Johnson.
Joining us now, CNN President - Presidential Historian, Tim Naftali, Co-Author of "Impeachment: An American History," Democrat - Democratic Strategist and CNN Political Commentator, Paul Begala, who worked for President Clinton, had a front-row seat to his impeachment, and Ross Garber, CNN Legal Analyst, who teaches impeachment law at Tulane Law School.
Paul, this resolution from McConnell tonight, with the rules of how this is - is going to be, this is obviously despite what he had earlier said, this is going to be very different than the President Clinton impeachment.
PAUL BEGALA, DEMOCRATIC STRATEGIST, CNN POLITICAL COMMENTATOR: It is. And I don't understand why.
I mean I'm sure it's political, and I'm a political guy, I get that. But it's not like he's at risk of losing votes anyway. It's not like 30 Republicans are going to remove the President anyway.
It's actually, honestly, in McConnell's interest, in the Senate's interest, more importantly, to have a fair trial that - that average American watches that and says "OK, that's fair."
You're trying to keep Senators up until 1:00 or 2:00 or 3:00 A.M., it's already - and Senate, famously, is - is like the world's most exclusive nursing home, and we're going to take these poor people--
COOPER: Yes.
BEGALA: --and keep them up till 3:00 in the morning? There's no need. He has time. He's got the votes. I - I really don't know--
COOPER: They may stay up.
TIM NAFTALI, CO-AUTHOR, "IMPEACHMENT: AN AMERICAN HISTORY," CNN PRESIDENTIAL HISTORIAN: Yes.
COOPER: I'm not sure viewers are going to stay up.
NAFTALI: Yes, yes.
BEGALA: Right.
ROSS GARBER, TEACHES IMPEACHMENT LAW AT TULANE LAW SCHOOL, CNN LEGAL ANALYST: Yes.
BEGALA: And maybe that's his goal. But he's - he's certainly giving the - the House Managers prime time, right, instead of just doing it all the day time, which is what the House did, when there's not as many viewers.
I - I just - I think this is going to do real damage to the Senate. In the Clinton days, the Republicans controlled the Senate. We were a Democratic administration.
But the Republicans and the Democrats in the Senate, together, they thought the House had been too-partisan. And they got together and all 100 of them agreed upon rules because they were really worried about the institutional reputation of the Senate. I don't see that today.
COOPER: Ross?
GARBER: Yes, I - well I think there are a couple of things. One is, you know, there - there's nothing to say that the Managers have to use all 24 hours of, I mean, I've - I've never given a 24-hour opening argument.
The second thing is I - as I read the rules, and they are significantly different, very different from the - from the Clinton rules, is it - is it's really going to what this trial is going to look like.
The Clinton trial was set up to not really be a trial, to admit all of the House evidence, right up front.
BEGALA: Yes.
GARBER: And have no discussion about, the President couldn't even object to it, get right through opening arguments, and get right to a verdict, do it very quick.
I think what - what Senator McConnell is doing here is saying "Look, we've got two choices.
We can do a quick sort of Clinton like kind of quasi trial, do those opening arguments, get right through it, get right to a verdict, or if we're going to start talking about new witnesses, that's fine.
We're going to take up the issue of evidence at the end, and then decide, you know, what the President's going to object to, and what's going to be admitted." So, I think that's really what the - the fundamental difference is.
COOPER: Tim, how do you see this?
NAFTALI: Well I think that I keep asking myself what role the moderate Senators played in shaping this because I - Mitch McConnell is a very good tactician. He would not have put this draft resolution out if he didn't already
have 51, at least, if not 53 votes, which means that the moderate Senators, who've been talking about witnesses, I'm talking about Senator Collins, Senator Murkowski, Senator Romney, are OK with this.
But what is it that they're OK with? Because this, as Ross mentioned, this resolution is quite different from the Clinton resolution, which apparently Senator Collins handed to Mitch McConnell, and said, "This is what I like."
And my sense is this that there were people in the Caucus, the Republican Caucus, who didn't want any witnesses, and they didn't want there to even be an opening for witnesses. And the moderates said "No, we need witnesses."
And what you've got is now a compromise, where they're going to have a vote, to vote on witnesses. I hope this means it'll be a real discussion.
I'm not convinced that there will be, in which case, we may face a - a fact, we may face a case where there will be no witnesses at all, making this a fundamentally different Presidential trial, and that's not good for the country.
COOPER: Ross, I mean there were, you know, Jeff Toobin before were saying this is a farce, essentially.
GARBER: Well I-- I think that actually goes pretty far. I mean in - in - in the Clinton trial, there weren't witnesses who actually testified on the floor of the Senate. There were depositions, and then excerpts were played. And - and - and that's very different, again.
I - I think what - what the - the moderates are getting out of this are really two votes, one is a - an up or down vote on whether considering witnesses is an order, in other words, an up or down vote on witnesses.
And then the second is a vote on the House's evidence. Are they going to - going to admit, and this is a vote that was not present in the Clinton impeachment. Are they going to admit the House's evidence, or are they not going to admit it, or are they going to admit parts, and not admit parts?
[21:45:00]
COOPER: Is that just symbolic though, I mean?
GARBER: Well I - I think that's very significant. I--
COOPER: Because I mean the - the - the people who are the Managers, they're going to be arguing--
NAFTALI: Yes.
COOPER: --using that evidence, so it's going to be talked about. GARBER: Well except here's - here's our work - as somebody who's tried cases, during opening arguments, what you typically say is "Here's - here's what I think the evidence is going to show," and you argue from that. That's fine. I expect that's what the Managers are going to be able to do.
But then, still, the prosecution has to move for the admission of every piece of evidence, has to justify every witness, has to justify all of the questions, and the answers. That's how a typical trial works.
The Clinton process short-circuited that, admitted all of the House evidence automatically, right at the beginning, the President didn't have the right to object.
BEGALA: Right. And we had - we had all the evidence.
GARBER: Right.
BEGALA: Ken Starr, God bless him, he was pretty thorough. He made like Javert in Le Mis--
GARBER: Yes.
BEGALA: --look like a slacker.
GARBER: Yes.
BEGALA: He - he - and his agents, his FBI agents interviewed window- washers from the White House, painters, hairdressers, dentists, mail carriers, so--
GARBER: Right.
BEGALA: --we had all the evidence. And it all came in - right, we had no right to object to it. In this case, the House case, in terms of evidences hamstrung because the President wouldn't cooperate.
So, we're not going to let that what little evidence the House was able to put together in, perhaps, without a vote, and we're certainly almost - we're certainly unlikely to get new evidence coming in, it really does look like a rigged deal.
COOPER: We got to take a break. Thank you all, appreciate it.
BEGALA: Yes.
COOPER: Coming up, next, House Speaker Nancy Pelosi named seven Members who will serve as Impeachment Managers and argue the Democrats' case for impeachment during the Senate trial, including the Lead Manager, Congressman Adam Schiff. He's been part of this investigation for months.
We're going to take a look at his role, when we can come back.
[21:50:00] (COMMERCIAL BREAK)
COOPER: Tonight, Republicans revealed their proposal for how they want to see the impeachment trial play out in the Senate. Democrats are pushing back. And both sides are in planning mode, getting ready for the trial to officially kick off tomorrow.
Among them, Democratic House Intelligence Chairman, Adam Schiff, who was picked to be the Lead House Manager of the trial. His selection is no surprise. For months, he - he's played a central role in the investigation of President Trump.
Going to take a look more now about Congressman Schiff, from CNN's Gloria Borger.
(BEGIN VIDEOTAPE)
REP. ADAM SCHIFF (D-CA): Well, it feels times like being in the eye of the hurricane. You can never tell when you're going to step out of the eye into gale-force winds.
GLORIA BORGER, CNN CHIEF POLITICAL ANALYST (voice-over): It's been nothing but turbulence for Adam Schiff for these past months.
SCHIFF: I now recognize myself to give an opening statement in the impeachment inquiry into Donald J. Trump, the 45th President of the United States.
It's of course much more intense now than ever before.
DONALD TRUMP, PRESIDENT, UNITED STATES OF AMERICA: He should resign from office in disgrace. And frankly, they should look at him for treason.
Shifty Schiff--
BORGER (voice-over): Anyone not living under a rock knows that Schiff is one of President Trump's favorite Twitter targets.
SCHIFF: I can't even keep up with the President's Twitter attacks on me. My staff has stopped sending them to me. They're too numerous.
BORGER (on camera): You don't follow him on Twitter?
SCHIFF: I don't follow him, no. No. I - I have more important things to do.
BORGER (voice-over): Like make the case against Trump in the Senate trial. But, just months ago, Schiff was in the camp that believed impeachment was not a good idea. So, what changed his mind?
SCHIFF: What made this a necessity for me, and so many of my colleagues, is that if the President believes that he can abuse his Office, the power of that Office, he can fail to defend our national security, and there is no accountability, even if the accountability is only in the House, that's too dangerous a prospect to persist. BORGER (voice-over): Schiff came to Congress from his Los Angeles
County district almost 20 years ago.
SCHIFF: Ready to win an election?
(CROWD CHEERS YES!)
BORGER (voice-over): A moderate Democrat who beat the Republican incumbent, a leader of the impeachment fight against Bill Clinton. How's that for irony!
SCHIFF: Mr. Rogan's priority has always been in engaging in these national partisan ideological crusades and ignoring the business at home and the district. And I don't think people value that.
BORGER (voice-over): Before Congress, Schiff served in the California State Senate. But his greatest impact came as an Assistant U.S. Attorney when he prosecuted an FBI agent for selling secrets to the Russians.
SCHIFF: Well it does feel, at times, like my life has come full circle.
BORGER (voice-over): From a major role in the Republican-led 2014 Benghazi investigation to becoming Chairman of the Intelligence Committee this year, to leading the charge against Donald Trump.
STEVE ISRAEL, (D) FORMER U.S. CONGRESSMAN - NEW YORK: What people don't understand about Adam or - is that he wanted to go on the Intelligence Committee for two principal reasons. Number one, it was bipartisan, and, number two, it was quiet.
And so I often say to him, "How'd that work out for you, buddy?"
BORGER (voice-over): It's become ugly and very personal. Illegitimate hearings, Republicans say, run by a Partisan Schiff, whom they even tried to censure.
REP. KEVIN MCCARTHY (R-CA): It's behind closed doors with a Chairman who has lied three times to the American public looking them in the eye. And somehow, we're supposed to trust what comes out of that?
REP. STEVE SCALISE (R-LA): It is a Soviet-style impeachment process.
REP. ELISE STEFANIK (R-NY): Chairman Schiff is unfit to chair the Intelligence Committee.
BORGER (voice-over): The Chairman is having none of it.
SCHIFF: For this President, they're going to destroy what America stands for in the world? They're going to countenance, holding up aid, or meetings, or whatever, to get help in the next election campaign? They're going to normalize that, rationalize that? They're going to hunker down and put their heads in the sand about it? Where's people's sense of duty? BORGER (voice-over): If that sounds like a line out of a screenplay, it could be. Schiff has written a few of his own, and took some dramatic and controversial liberties in describing the President's phone call with the Ukrainian President.
SCHIFF: "And I'm going to say this only seven times, so you better listen good. I want you to make up dirt on my political opponent, understand lots of it."
BORGER (voice-over): The performance turned into a political opening for Republicans, one, in particular.
TRUMP: Shifty Schiff is a double corrupt politician. He took my words on the phone call, and they were so good, he totally changed them.
BORGER (on camera): Do you regret doing it that way?
[21:55:00]
SCHIFF: No, I made it clear I was mocking the President and just as clearly the President doesn't like being mocked. But it was a mafia kind of a organized crime shakedown.
But I'm not surprised if the President wasn't attacking me about this, he'd be attacking me about something else.
TRUMP: They have been trying to impeach me--
BORGER (voice-over): And Trump has kept up the drumbeat during weeks of Committee hearings and showdowns over witnesses. But it was Adam Schiff who had the last word.
SCHIFF: This President believes he is above the law, beyond accountability. And, in my view, there is nothing more dangerous than an unethical President who believes they are above the law. In the words of my great colleague, "We are better than that."
(GAVEL BANGS)
SCHIFF: Adjourned.
(END VIDEOTAPE)
COOPER: That was Gloria Borger reporting. We'll be right back.
(COMMERCIAL BREAK)
COOPER: And the news continues. Want to turn things over to Don Lemon and CNN TONIGHT.
DON LEMON, CNN HOST, CNN TONIGHT WITH DON LEMON: This is CNN TONIGHT. I'm Don Lemon. Thank you so much for joining us.
Just hours to go, until the Senate gets down to the real business of the impeachment trial of President Donald Trump. Well we've got major news tonight on just how the trial will play out, OK? So, we're going to tell you about that. It looks like Mitch McConnell is determined to--
