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Chief Justice Roberts And U.S. Senators Sworn In For The Trial Of Donald John Trump Trial. Aired 2-2:30p ET

Aired January 16, 2020 - 14:00   ET

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

[14:00:00]

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Joan, couldn't some of this stuff actually wind up before the Supreme Court if there are arguments over testimony, documents, the White House not giving the Democrats what they want? I mean, is there a potential for any kind of a conflict if he were to do any?

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: Well, you know, back in 1993, the Supreme Court ruled in something that I like to refer to as the other Nixon case, not the 1974 landmark involving President Richard Nixon.

But in a 1993 case, when a judge by the name of Walter Nixon, who was being tried after being impeached in the House, challenged some Senate procedures, went over to the Supreme Court after he had been convicted on the Senate side and said, look, I didn't like the way the Senate actually did its procedures.

And the Supreme Court said, this is the Senate's show. This is -- the Senate has its power. We are not going to rule on how the Senate needs to do this.

Now there could be -- I mean, who says never anymore in any way in our atmosphere? There could be -- let me just finish on what could come. There could be some possible challenges on executive privilege that would go over there.

Just like I do have to remind everyone that there are three cases now pending at the Supreme Court that involved Donald Trump completely separate from this impeachment that have to do with House and grand jury subpoenas for his tax records and other financial papers.

ALAN FRUMIN CNN CONTRIBUTOR: In the brief for the government in Nixon versus the U.S., there were two names on that brief arguing for the government. The first name was Ken Starr --

JAKE TAPPER, CNN HOST: I'm sorry to cut you off, we're going to come right back to you. But I want to listen in to the Senate Majority Leader.

SEN. MITCH MCCONNELL (R-KY): ... I suggest the evidence of a core.

UNIDENTIFIED MALE: We will call the roll.

UNIDENTIFIED FEMALE: Mr. Alexander?

Miss Baldwin.

Mr. Barrasso.

Mr. Bennet.

Mrs. Blackburn.

Mr. Blumenthal.

TAPPER: Let's go back. I'm sorry to interrupt.

FRUMIN: This significant case that went all the way to the Supreme Court on whether or not there could be a constitutional challenge to the Senate's behavior in an impeachment trial. Chief Justice Rehnquist led a court that ruled nine to nothing against the challenge to the manner in which the Senate conducted the trial.

The two names on the brief for the government, Solicitor General Ken Starr, Deputy Solicitor John Roberts.

BISKUPIC: You want to know another quirk of that? You know who else was on those briefs? Doug Letter. He was also in the Department of Justice at the time, and now he's the House Counsel for Nancy Pelosi. Everyone was around in 99 and 93.

FRUMIN: So the people who need to know that this is a non-justiciable issue are around and they are in positions of authority.

BISKUPIC: That's right.

BORGER: You know, the other interesting thing about John Roberts is that, of course, he has been sort of outspoken about the rule of the courts, and he did take on Donald Trump, in a way after Donald Trump was criticizing Obama judges.

UNIDENTIFIED MALE: That's a quote, Obama judge.

BORGER: Obama judges -- and he came out and he said, we do not have Obama judges or Trump judges. So we've heard from him on the role of the courts and how they cannot be political.

So it is so highly unlikely under any circumstance that John Roberts would do anything, even if he weren't inclined. That would be -- it could be interpreted as political.

BISKUPIC: I don't think the risk is if he is crest into it. If somebody says, we don't like where the Senate Majority is, Presiding Officer, could you make a determination on this?

I have a feeling he would throw it right back to the Senate Majority, but you know, you just don't know in this atmosphere what kind of wild card he could be handed.

TAPPER: So Joan, in in 99, the very first objection came from Tom Harkin, who was objecting to the Democratic senator from Iowa who was objecting to House Impeachment Manager Bob Barr, Republican of Georgia using the term jurors.

And there's a bunch of reasons for that. But Rehnquist ultimately ruled and sided with Harkin, the Democrat. Do you see Roberts doing that? Or do you think he will just put everything to a 51-vote threshold?

BISKUPIC: That was a very procedural question, and actually, I love that question because it reminds all our viewers that this is not any kind of standard trial because the senators are not sitting justice jurors, they're actually sitting as Chief Justice William Rehnquist said, as a court.

TAPPER: They are judges.

BISKUPIC: So that was --

TAPPER: It's like a hundred judges.

BISKUPIC: Exactly right. So that was -- that one, it wasn't substantive, but it was important, and it sort of put the House Managers in their place saying, look, you've got to call them by their right names.

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: I have another question that we have some confusion about and Alan I know that you want to talk about this -- go ahead.

FRUMIN: Well, I did. You said you loved what took place with the Harken point of order. That was 21 years ago yesterday. You loved it. I didn't.

I was the parliamentarian on duty at that time, and I turned and gave the Chief Justice my best advice, which was if I cannot find the basis on which to sustain a point of order, you don't sustain a point of order. I gave the Chief that advice and I turned and I listened to his ruling, 180 degrees opposite of what I advised.

BASH: Well, that's a good lesson. The Chief might not -- exactly.

FRUMIN: It did not go unnoticed to the authorities.

BASH: So my question is we've been talking all about these 51 senator who could vote to approve documents and witnesses and so forth.

But there are 100 senators, and what happens if there is a tie vote? And the open question had been whether or not the Chief Justice who is presiding can break a tie.

[14:05:23]

BASH: John Dean had mentioned on air with me last week that he thought the Chief Justice might be able to, you were saying, you're not so sure.

FRUMIN: Well, I yelled at the TV and it didn't matter.

BASH: But what's the truth?

FRUMIN: Well, the truth is complicated.

BASH: This could happen.

FRUMIN: In the Andrew Johnson trial, Chief Justice Chase had three opportunities to break a tie. He took the opportunity on the first two, one was on a motion that the Senate retire for consultation, and the other was on a motion that the Senate adjourn for one day.

In both instances, they were tied. He voted yes. So to a certain extent, he is voting his own personal comfort. But after the first vote, Senator Sumner was very upset he made a motion. He argued that the Chief had no authority to vote. He made a motion, basically stating that the Chief Justice was not authorized to vote. That motion was roundly defeated.

So the Chief voted once he was challenged, the Senate basically sided with the Chief. Two days later, he voted again, and I wasn't alive back then, but I am rather certain that a number of the senators got after him and said, you are not a senator. There is no authority. There is no explicit authority for you to vote.

And when the last opportunity for him to break a tie arose, he decided not to.

WOLF BLITZER, CNN HOST: And I'm curious, Alan, I think it's significant. Remind our viewers why the Vice President of the United States who is the President of the Senate and usually comes in to break a tie has no role in an impeachment trial.

FRUMIN: Well, he has no role in this impeachment trial because he has a conflict of interest, and the framers of the Constitution understood that. So the Vice President who is the President to the Senate, and in the constitutional provision, naming him, the President of the Senate said he shall have no vote unless they are evenly divided.

So the suggestion is, he has a tie breaking vote only when he presides. He cannot preside in the impeachment trial of a President, and so he has no tie breaking vote based on that.

Then the question is, and people have argued, well, the Chief Justice is really the Vice President for these purposes, and that's the theoretical basis for his authority to break a tie.

TAPPER: So we really don't know what happens if there is a tie? Is that really where we are?

BORGER: I just want to mention what the 1986 rules say, just to follow up, because I'm in the camp that believes he cannot break a tie. And I'll tell you why. Because as they then after all that happened in 1868, as the Senate revised its rules, it specifically did not give the Presiding Officer the power to do that. Now, some people would say, well, it didn't say that he couldn't. But

until this new round of something -- I think some people are putting some hopes on to John Roberts that he might.

TAPPER: This is the Chief Justice of the United States.

BLITZER: This is the escort committee coming in. You see -- you see, Lindsey Graham, Patrick Leahy, Dianne Feinstein, Roy Blunt -- all senators followed by the Chief Justice of the United States. There he is, John Roberts.

They're walking in to the U.S. Senate to begin the formal procedure of this trial of the President of the United States. If 67 senators, two- thirds of the U.S. Senate vote to convict, he will be removed from office.

MCCONNELL: ... pursuant to Rule 4 of the Senate rules on impeachment and the United States Constitution, the presiding officer will now administer the oath to John G. Roberts, Chief Justice of the United States.

UNIDENTIFIED MALE: His Honor, the escort committee will now conduct the Chief Justice of the United States to the dais to be administered the oath.

JOHN G. ROBERTS, SUPREME COURT CHIEF JUSTICE: Thank you, Senator. I appreciate that.

Senators, I attend the Senate in conformity with your notice for the purpose of joining with you for the trial of the President of the United States. I'm now prepared to take the oath.

UNIDENTIFIED MALE: Will you place your left hand on the Bible and raise your right hand? Do you solemnly swear that in all things appertaining to the trial of the impeachment of Donald John Trump, President of the United States, now pending, you will do impartial justice according to the Constitution and the laws, so help you God.

ROBERTS: I do.

[14:10:16]

UNIDENTIFIED MALE: God bless you.

ROBERTS: Thank you very much. At this time, I will administer the oath to all senators in the chamber in conformance with Article 1 Section 3 Clause 6 of the Constitution and the Senate's Impeachment Rules.

Will all senators now stand or remain standing and raise their right hand.

Do you solemnly swear that in all things appertaining to the trial of the impeachment of Donald John Trump, President of the United States now pending, you will do impartial justice according to the Constitution and laws, so help you God.

The clerk will call the names in groups of four and senators will present themselves at the desk to sign the oath book.

UNIDENTIFIED FEMALE: Mr. Alexander, Miss Baldwin, Mr. Barrasso, Mr. Bennet.

Mrs. Blackburn, Mr. Blumenthal, Mr. Blunt, Mr. Booker.

Mr. Boozman, Mr. Braun, Mr. Brown, Mr. Burr.

Ms. Cantwell, Mrs. Caputo, Mr. Cardin, Mr. Carper.

Mr. Casey, Mr. Cassidy, Ms. Collins, Mr. Coons.

[14:15:10]

UNIDENTIFIED FEMALE: Mr. Cornyn, Ms. Cortez-Masto, Mr. Cotton. Mr. Cramer.

Mr. Crapo, Mr. Cruz, Mr. Daines, Ms. Duckworth.

Mr. Durbin, Mr. Enzi, Ms. Ernst, Mrs. Feinstein.

Mrs. Fischer, Mr. Gardner, Mrs. Gillibrand, Mr. Graham.

Ms. Grassley, Ms. Harris, Ms. Hassan, Mr. Hawley.

Mr. Heinrich, Ms. Hirono, Mr. Hoeven, Mrs. Hyde-Smith.

[14:20:10]

UNIDENTIFIED FEMALE: Mr. Inhofe, Mr. Johnson, Mr. Jones, Mr. Kaine.

Mr. Kennedy, Mr. King, Ms. Klobuchar, Mr. Langford.

TAPPER: As the senators sign this document, they're being called by alphabetical order. Joan Biskupic, what are they signing here exactly?

BISKUPIC: They're signing what's officially called the Oath Book. And every single senator rising from his chair and her chair will come up there and sign this and that was done in 1999. It was done back in 1868.

This is part -- this is when I said, a very scripted affair and today is mostly script and ceremony as opposed to what's going to happen next week and beyond.

But this is where they all come up and you know, they've taken their -- they'll take their own as a chief administrative and just attest to be impartial.

BORGER: You know the interesting thing here is also as our great Ted Barrett up on the Hill points out that these senators unlike in 1999, where when they signed it, they each kept their pen. They are all signing with one pen and that is because Mitch McConnell really criticized Nancy Pelosi for handing out pens yesterday.

So even on an issue as small as do you keep your pen, they have had disagreement and so they are not doing it today.

TAPPER: Yes, a lot of Republicans thought that while it is common practice to have pens given out as legislation is signed, that handing out pens and smiling and posing for pictures was unbecoming of a procedure that the Speaker has referred to as solemn and serious.

BLITZER: Alan Fruman, you were the Senate parliamentarian the last time there was an impeachment trial in the U.S. Senate, going back 21 years when Bill Clinton was impeached by the House and the trial began in the Senate. Who comes up with all these parliamentary, these procedures that we're going through right now?

FRUMAN: These procedures in the Clinton trial were worked out by the joint leadership; Majority Leader Trent Lott of Mississippi and Democratic leader Tom Daschle of South Dakota, felt that the House had not conducted itself in a dignified manner and they were determined that the Senate would handle this impeachment trial with dignity.

And they convened in the old Senate chamber, a caucus of a hundred and they were determined that the ground rules for the trial or at least the ground rules for the beginning of the trial would be unanimous.

And at the time, Senators Kennedy -- Ted Kennedy and Phil Gramm, Liberal Democrat, conservative Republican, basically brought all of their colleagues together and decided initially to support the basic guidelines for the beginning phase of the trial, for the phase of the trial that is similar to pleadings in a lawsuit.

The complaint going to the President, the answer from the President, the replication from the House, all of this was scripted out and decided in a resolution that was adopted a hundred to nothing.

So the smooth stuff was done by the by the leadership.

BISKUPIC: And Alan wasn't it that they waited on hard questions like witnesses until they got down the road when they had to decide live testimony versus videotaped, and of course opted just for three videotapes.

FRUMIN: They adopted -- the first resolution on January 7th, the contested resolution, the more difficult procedures were decided at the end of January.

BORGER: So it's interesting to think that when this starts next week, the senators are going to go into this capsule, they will not be able to text, they will not be able to talk to their colleagues. They will be sitting there forced to listen.

[14:25:10]

BORGER: And this is something none of us do these days because we multitask every moment of every day and they're going to be in a very, very different world.

FRUMIN: I've described that world is show up and shut up.

BORGER: Yes.

FRUMIN: They're used to speaking, that's why they're in the Senate. Well, these rules explicitly prohibit them from doing that.

BLITZER: And you know, Dana, four of those senators out of the hundred are running for President of the United States right now. They're not going to be in New Hampshire. They're not going to be in Iowa. They're going to be sitting there in the Senate from noon until at least six or 6:30 p.m. every day, six days a week. They have they have trial sessions on Saturday as well.

BASH: That's right. There was Probably as -- I know -- it was a sigh of relief when they learned that this weekend, at least they're not going to be an actual trial which was a possibility as of last week, so they don't actually have to be here until Tuesday after the Martin Luther King holiday.

So this weekend is going to be their final push on the trail for, you know, we don't know how long. I mean, it really could run up to right up to the Iowa caucuses, the first Monday in February.

And speaking of, there's one of them, Bernie Sanders, and it really, you know, we'll see if Iowa continues to be the way it has historically been, which is they need to see, talk to, shake hands, hug the candidates six times before they agree to caucus for them, or whether that would mean that the people who don't have to be here will have a real advantage.

TAPPER: It sure is an in kind contribution to the campaigns of former Mayor Pete Buttigieg and former Vice President Joe Biden, because you have Bernie Sanders, Elizabeth Warren, Amy Klobuchar, Jr. and Michael Bennet, four senators all running for President who are not going to be able to be in Iowa before the February 3rd Iowa caucus.

And then one week and one day after that is the New Hampshire primary and then the Saturday after that is Nevada, the Saturday after that is South Carolina. I mean, it depends how long they're off the campaign trail, but it's not helpful.

BORGER: Well, and Mitch McConnell wants this done by the State of the Union, which is February 4th.

TAPPER: Right after all the caucus, yes.

BLITZER: February 4th.

BORGER: February 4th, and if there are witnesses, I mean, think about that? These Democrats presumably want to have witnesses. If there are witnesses that would prolong this trial even further and keep them off the trail perhaps even past Iowa.

We just don't -- we just don't know, but they're going to have to vote against their own self-interest.

BISKUPIC: The point of comparison, the Clinton trial lasted five weeks. I think it was a February 12th vote. And we're already starting later in the calendar year than the Clinton trial started in January of 1999.

So -- and again, that one had three witnesses, but they were just videotaped and it was already a repeat of the Starr testimony.

BLITZER: And you know, Alan Fruman, you were the Senate parliamentarian during the Bill Clinton impeachment trial. Just tell our viewers all 100 U.S. senators, they were sworn in. They took the same oath as the Chief Justice.

The Chief Justice administered that oath to them, why do they now need to actually sign what's called this Impeachment Trial Oath Book, in addition to seeing them and hearing them, say they would abide by all the rules and accept this oath?

FRUMIN: Oh, I believe that the Oath Book is simply ceremonial. I think what matters is that they raised their hands, and they affirmed an oath in open session.

The Senate does like to keep records, and so it's my guess, I don't know, but my guess is that this is simply the Senate's way of saying, we go through historic moments. We like to memorialize.

BLITZER: Are there other procedures where someone is sworn in, but then needs to sign an oath book as well?

FRUMIN: Well, Senators after they're sworn in to be senators signed the General Oath Book, and that's an oath book that's been kept from 1789. And so -- and I don't know if there are actual numbers in the book, but senators do know that you're United States Senator number eight -- let's say 1776. So the Senate keeps a General Oath book going back to the very beginning. The Senate likes to keep records.

TAPPER: And the oath is that they receive the information and decide impartially objective.

FRUMIN: Well, there's the special impeachment trial oath that they take and it's different. It's different from their general oath of office.

BLITZER: That's Elizabeth Warren signing the Oath Book right there.

FRUMIN: They swear to do impartial justice.

TAPPER: Swear to do impartial justice, although many of them on both sides of the aisle have already said how they're going to vote when it comes to removing the President. Let's continue to listen in.

[14:30:00]