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After Long Night Presiding Over Senate Trial, Chief Justice Roberts Due At Supreme Court At 10 AM; Dems Propose Amendment Over Future Subpoenas; Senate Voting On Amendment To Force Vote On Witnesses; Senate Voting on McConnell Resolution to Establish Rules. Aired 1-2a ET
Aired January 22, 2020 - 01:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[01:00:00]
CHRIS CUOMO, CNN ANCHOR: One, Chief Justice John Roberts, who kind of jumped at that opportunity to say enough is enough, you're disrespecting where we are. He's going to be in court at 10:00 a.m. tomorrow. So whenever this ends, he has to do a second job early after sitting and listening to 12 or 13 hours of what would never pass on in his courtroom for any kind of argumentation or civil discourse.
That is to be kept in mind, the fatigue of this process. Listen to this. Mel, my executive producer gave me some numbers for you. Five -- I have Andrew McCabe next to me. That's what I'm looking at. Five out of 100 of the senators are over 80. 27 of 100 of the senators are over 70. 39 of the 100 senators are above 60. So you have 71 of them out of 100 are somewhere between, you know, 66 is the average age.
Now, no disrespect, you know, but this is a long day. The camera work here is being done by the Supreme Court. It is the first time by the Senate. It is the first time I've ever been envious of the shooting skills of C-SPAN because we don't get to see the senators in their seats that often. Here you can but it's hard to make it out how they're staying awake, how they'll process.
There's a good chance, Andrew, that every day may go close to as long as this one. Maybe not into the wee hours, but 10, 12 hours of this. The role of fatigue, that is something that many will dismiss. To you, is there significance?
ANDREW MCCABE, FORMER DEPUTY DIRECTOR, FBI: Absolutely. There's significance. So, I think you're -- you hit the nail on the head especially across the first six days of the opening statements which will go at eight-hour lengths for three days on the House side, and then for three days on the President's side.
Look, anyone who has tried to spend an entire day sitting in a conference, sitting in a series of classes, and really trying to pay attention, trying to distill the detail and the nuance out of what they're hearing knows that you can only maintain that level of paying attention that clearly for a limited period of time.
You have a large group of people who are not used to sitting without telephones, without access to staff, without kind of multiple inputs, really just focusing on the speeches that they're hearing over the course of now. We've been doing this for probably over 12 hours.
CUOMO: And while this is largely introductory, as you pointed out earlier, and a good point at that, which is this is the first time most people have heard this.
MCCABE: That's right.
CUOMO: But this was a really interesting moment to see the Chief Justice who has to be in work today admonish they finish the roll call to table the amendment back to the --
JOHN ROBERTS, CHIEF JUSTICE, SUPREME COURT: The Democratic leader is recognized.
SEN. CHUCK SCHUMER (D-NY): Thank you, Mr. Chief Justice. I send an amendment to the desk to provide for a vote of the Senate on any motion to subpoena witnesses or documents after the question period and I wave it's reading.
ROBERTS: Any objection of the waving of the reading?
SCHUMER: Object, read it.
ROBERTS: There is no objection.
SCHUMER: I withdraw my waiver -- request for a waiver.
ROBERTS: Is -- does any senator have an objection to the waving of the reading?
UNIDENTIFIED MALE: I object.
ROBERTS: There is an objection. Yes. The Clark will read the amendment.
UNIDENTIFIED MALE: The senator from New York Mr. Schumer proposes an amendment number 1292 on page three, line eight, strike four hours and insert two hours. On page three, line 10, strike the question of an all that follows through rules on line 12. On page three, line 14, insert any such motion after decide. On page three, line 15, strike weather and all that follows through documents on line 17.
On page three, line 18 strike that question and insert any such motion. On page three, line 22 and 24 strike and the Senate shall decide after deposition which witnesses shall testify and insert and then shall testify in the Senate.
ROBERTS: The amendment is arguable by the parties for two hours equally divided. Mr. Manager Schiff, are you a proponent or opponent? Mr. Cipollone, a proponent our opponent? Thank you. Mr. Schiff. You may proceed and may reserve time for rebuttal.
[01:05:27] REP. ADAM SCHIFF (D-CA): Senators, this amendment makes two important changes to the McConnell resolution. The first is the McConnell resolution does not actually provide for an immediate vote even later on the witnesses that we have requested. What the McConnell resolution says is that at some point after essentially the trial is over, after you've had the arguments of both sides, you had the 16 hours of questioning, then there will be a debate as to whether to have a vote and a debate on a particular witness.
So there's no even guarantee you're going to get a chance to vote on specific witnesses. All the resolution provides is you're going to get an opportunity to vote to have a debate on whether to ultimately have a vote on a particular witness. This would strip that middle layer. It would strip the debate on whether to have a debate on a particular witness.
If my council -- my colleagues for the President's team are making the point, well, you're going to get that opportunity later. The reality is under the McConnell resolution, we may never get to have a debate about particular witnesses. Now, you've heard the discussion of four witnesses tonight. There may be others that come to the attention of this body if we're able to get documents that we should also call. But will you ever get to hear a debate about why a particular witness is necessary Well, you may only get a debate over the debate. And so, this amendment would remove that debate over a debate regarding particular witness.
The other thing that this resolution would provide is that you should hear from these witnesses directly. The McConnell resolution says they'll be deposed and that's it. It doesn't say you're ever actually going to ever hear these witnesses for yourself. Which means that you as the triers of fact may not get to see and witness the credibility of these witnesses. You may only get to see a deposition or a deposition transcript or maybe a video of a deposition, I don't know. But if there's any contesting of facts, wouldn't you like to hear from the witnesses yourself and very directly?
Now, the reason why it was done this way in the Clinton case, why there were depositions, and again, in the Clinton case, all these people had been interviewed and deposed or testified before, but the reason why it was done that way in Clinton is because of this salacious nature of the testimony. Nobody wanted witnesses on the Senate floor talking about sex.
Well, as I said earlier, I can assure you that will not be the issue here. And so, to whatever degree, there was a reluctance in the Clinton case to have live testimony because of its salacious character. That is not an issue here. That is not a reason here not to hear from those witnesses for yourself. So this resolution makes those two important changes, and I would urge your support of it. And I yield -- I reserved (INAUDIBLE).
ROBERTS: Mr. Cipollone.
PAT CIPOLLONE, COUNSEL TO PRESIDENT TRUMP: Thank you, Mr. Chief Justice. Mr. Purpura will argue (INAUDIBLE) MICHAEL PURPURA, DEPUTY COUNSEL TO THE PRESIDENT: Mr. Chief Justice, members of the Senate, good morning. I will be very brief on this. We strongly oppose the amendment. We support the resolution as written. We believe that the resolution as to the two areas that Manager Schiff discussed, the resolution appropriately considers those questions and strikes the appropriate balance in the Senate's discretion as the sole trier of impeachments.
The rules in place here in the resolution are similar to the Clinton proceeding in that regard in the sense that this body has the discretion as to whether to hear from the witness live if there are witnesses at some point or not. But more fundamentally, there's a fundamental -- the preliminary question has to be overcome, which is they will have two hours, four hours total, two hours for them to try to convince you after the parties have made their presentation, which they will have 24 hours to do.
As to whether or not the preliminary question of whether it shall be in order to consider and debate any motion to subpoena witnesses or documents, that was precisely the Clinton rules. That was -- it's actually stronger than the Clinton rules, I'm sorry. And those rules as I've indicated before past 100 to zero. We think that the resolution strikes the appropriate balance, and we urge that the amendment be rejected. I yield my time.
[01:10:56]
ROBERTS: Thank you, Counsel. Mr. Schiff, you have 57 minutes.
SCHIFF: Don't worry, I won't use it. I would say only, if there was any veneer left, any veneer left to camouflage where the President's Counsel was really coming from, the veneer is completely gone now. After saying we're going to have that opportunity to have a vote on these witnesses later, now they're saying no, no, no, you're just going to have a vote on whether to debate having a vote on the witnesses.
The camouflage was pretty thin to begin with, well, it's completely gone now. Now, what they really want is they want to get to that debate, that generic debate about whether have a debate on witnesses and have you voted down so you never actually have to vote to refuse these witnesses, although you had to do that tonight. I don't see what that purpose serves except I supposed to put my one more layer in the way -- in the way of accountability.
But the veneer is gone. All this promise about you're going to get that opportunity is just a question of when. No, no, no, no, the whole goal is for you're never get a chance to take that vote. And what's more, the vote on this resolution is a vote that says, you don't want to hear from these witnesses yourself. You don't want to evaluate the credibility of these witnesses yourself. Maybe just maybe you'll let them be deposed, but you don't want to hear them yourself. You don't want to see these witnesses come in and put up their hand and take an oath.
Now, I don't know what the rules of these depositions are going to be. Maybe the public isn't going to ever get to see what happens in those depositions. We released all the deposition -- transcripts from our depositions, those secret 100 person depositions. But we have no idea what rule they'll adopt for these depositions. Maybe the public will see them, maybe they won't, maybe you'll get to see them. I assume you'll get to see them.
But at the end of the day, this is also a vote that you're going to have to cast that says, no, I don't want to hear them for myself. No, I don't want to evaluate their credibility for myself. This is after all, only a vote, only a case, only a trial about the impeachment of the President of the United States.
You have a bank robbery trial, you have a trial over somebody stealing a piece of mail, you going to get live witnesses. But an impeachment of the President of the United States, no, we don't need to see their credibility. Is that really where we are here tonight? Is that what the American people expect of a fair trial? I don't think it is. I yield back.
SEN. MITCH MCCONNELL (R-KY): Mr. Chief Justice.
ROBERTS: The Majority Leader is recognized.
MCCONNELL: I move to table amendment and ask for the yeas and nays.
ROBERTS: Is there is sufficient second? There is. The clerk will call the roll.
UNIDENTIFIED FEMALE: Mr. Alexander.
SEN. LAMAR ALEXANDER (R-TN): Aye.
UNIDENTIFIED FEMALE: Miss Baldwin.
SEN. TAMMY BALDWIN (D-WI): No.
UNIDENTIFIED FEMALE: Mr. Barrasso.
SEN. JOHN BARRASSO (R-WY): Aye.
UNIDENTIFIED FEMALE: Mr. Bennett.
SEN. MICHAEL BENNET (D-CO): No.
UNIDENTIFIED FEMALE: Mrs. Blackburn.
SEN. MARSHA BLACKBURN (R-TN): Aye.
(END VIDEOTAPE)
CUOMO: All right, they are doing the roll call right now. This is, of course, another vote on an amendment. This one was about future subpoenas and in what form the body would get to see witnesses. And this is, like many others, a point of big contention for Democrats. And just to remind you again, it's almost 1:15. Eastern. They've been going certainly for over 12 hours now. You have the Chief Justice who just arguably made the moment of the day admonishing both sides to observe the decorum of civil discourse in the Senate. He has to be at work today and eight hours plus. So, this is going to wear on people.
You have 66 out of 100 senators are over 60 years of age. This is not about age, it's not to disparage anybody, but the fatigue is going to be significant. And this is just the procedural stage. Let's check in with Jeff Zeleny as they're doing the roll call right now of once again, a vote, Jeff, that is expected to go down along party lines as has every other. What are you hearing?
[01:15:34]
JEFF ZELENY, CNN SENIOR WASHINGTON CORRESPONDENT: Indeed, Chris. The vote will go down. If all the senators are still present, we believe they are, it will fail 53-47 as the others have. But we're getting some reporting in an insight into what is actually happening in the on the floor of the Senate. As you were saying earlier, the cameras are limited in what they're showing, but our Jeremy Herb, one of our fine reporters on the Hill team is in the Senate chamber and has been describing some of this. And he says that senators on both sides are getting quite restless during that recent debate there.
They were gathered on both sides. The Republican side and the Democratic side. Amy Klobuchar was talking to a Kirsten Gillibrand. Bernie Sanders was wandering around as well. So there's no question that senators are reaching the end of the line here. But Chris, my question here, is this. Is Senator Schumer doing the right thing here today, or is he overreaching by really forcing this long discussion on debate in amendment after amendment? Is he giving up some of that goodwill that he was hoping to get from some four Republicans that he may need later on in the trial?
We do not know the reaction to Susan Collins or Mitt Romney when they were sitting there watching what the Chief Justice admonished there. So things are getting pretty acrimonious there -- here. What effect that has on the long term, we don't know but that's something that should be considered.
CUOMO: Right. I mean, one point of it, Jeffrey, is proper speculation as to what the impact of the strategy is. Right now, we're showing you the picture fold just so that you can get a little bit of a sense. These are not our cameras. The accommodation here is that the Senate is in control of its own cameras --
ZELENY: It's the Senate gallery.
CUOMO: -- and showing the Senate gallery. And so you're not getting as precise a view as we'd like to see of how the men and women there, many of them have somewhat advanced age, are handling not the most comfortable circumstances, hour after hour of argumentation, and this could go on for weeks. And fatigue can have a lot of different effects.
I'm not talking about anything severe or any kind of physical crisis, but how much you focus, how much you care, what starts to grate on you. And that goes to your point. Now, look, what is the best argument for Schumer? The best argument is America is being introduced to this tonight. Many of us have been observing it for most of recent history, but many have not because life is a lot bigger than the D.C. political process for most Americans. But now it's going to matter. It's going to be on the front burner. So they're making a case.
Schumer's play is this, taken at its best. I'm going to go at the Republicans with every one of these, one, to prove to the American people the breadth of what has been denied, and what's supposed to be a fair process. I want them to know this, every name, every source of documentation, and I'm going to go and hope that what could be seen as removing goodwill, Jeffrey, actually compounds the importance of what senators may choose to look past and to deny. That his best take.
ZELENY: It could be, without a doubt. And the -- and the audience is, of course, those few Republican senators. And let's sort of take a step back here. It was a remarkable move earlier in the day when it was a group of mainly moderate Republican senators but not all. Rob Portman of Ohio certainly conservative leading the way. They do want a fair trial and getting Majority Leader McConnell to make those concessions earlier. That was key. Let's listen to the Chief Justice there.
CUOMO: All right, Jeffrey, thank you.
(BEGIN VIDEOTAPE)
ROBERTS: -- 53, the nays are 47. The amendment is tabled. The Democratic Leader is recognized.
SCHUMER: Mr. Chief Justice, I send an amendment to the desk to allow adequate time for written responses to any motions by the parties and I asked it to be read.
ROBERTS: The clerk will report.
UNIDENTIFIED FEMALE: The senator from New York, Mr. Schumer proposes an amendment number 1293 on page two beginning on line 10 strike 11:00 a.m. on Wednesday, January 22, 2020, and insert 9:00 a.m. on Thursday, January 23, 2020. On page two, line 15, strike Wednesday, January 22, 2020, and insert Thursday, January 23, 2020.
ROBERTS: The amendment is arguable by the parties for two hours equally divided. Manager Schiff, are you a proponent of this and amendment? Are you a proponent of this amendment?
[01:20:06]
SCHIFF: I am a proponent, Mr. Chief Justice.
ROBERTS: Mr. Cipollone.
CIPOLLONE: Mr. Chief Justice, I'm an opponent.
ROBERTS: OK, Mr. Schiff, you may proceed and reserve time for rebuttal if you wish. SCHIFF: Thank you, Mr. Chief Justice. This amendment is quite simple. Under the McConnell resolution, the parties file motions tomorrow at 9:00 a.m., written motions that is, and the responding party has to file their reply two hours later. That really doesn't give anybody enough time to respond to a written motion.
When the President's team filed, for example, their trial brief, it was over 100 pages. We at least had 24 hours to file our reply and that's all we would ask for. In the Clinton trial, again, if we are interested in the Clinton case, they had 41 hours to respond to written motions. We're not asking for 41 hours, but we are asking for enough time to write a decent response to a motion. That's essentially it. And I would hope that we can agree at least on this. I reserve the balance of my time.
ROBERTS: Mr. Sekulow?
JAY SEKULOW, OUTSIDE LEGAL COUNSEL TO PRESIDENT TRUMP: Thank you, Mr. Chief Justice, Members of the Senate. So it seems like tomorrow is a day off according to your procedure. Is that correct Mr. Schiff? Today is tomorrow. Tomorrow's today. The answer is we're ready to proceed. We will respond to any motions. We would ask the chamber to reject this amendment.
ROBERTS: 59 minutes remaining Mr. Schiff.
SCHIFF: Mr. Chief Justice, we yield back our time.
ROBERTS: Thank you. The Majority Leader is recognized.
MCCONNELL: Mr. Chief Justice, I more the table the amendment.
ROBERTS: Is there a sufficient second?
UNIDENTIFIED FEMALE: There is.
ROBERTS: There is. The clerk will call the roll.
UNIDENTIFIED FEMALE: Mr. Alexander.
ALEXANDER: Aye.
(END VIDEOTAPE)
CUOMO: All right, as they are doing what now has become familiar to us, they're going to go through the roll call and see what the vote is on this amendment, which is about the timing of written response, which why I bring this up? Well, because throughout the duration of the proceeding, they are trying to ensure fairness by making sure that if a motion is made, you get enough time to answer. During the Clinton impeachment, there was about twice as long and they're trying to make it closer to what that was. It is expected to go down like every other amendment 53-47 party vote.
Now, Jeff Zeleny is with me and Hillary Rosen is with me as well. Thank you both. Jeff, let's go back to your point and bringing Hillary on it as well. The move here by Schumer in putting forward all these amendments once. Earlier in the night, McConnell said, do you want to bundle them? You k1now, let's do them all at once, and then they would all go down at once right, given the realities of the vote.
Schumer said, no. America is being introduced to this. It's too important. They need to know each and every one of these things that has been denied, plus-minus.
ZELENY: Well, look, I think -- I mean, the biggest moment -- one of the biggest moments certainly was when Chairman Nadler was giving the long argument for why he believes there should be a subpoena for John Bolton that clearly is a case here. I mean, don't forget, the former National Security Adviser Mr. Bolton has agreed to testify if subpoenaed.
So that argument, I think, was certainly worth, and senators, I'm told, we're paying more attention to that. At least a couple of the Republican senators who are interested perhaps in having him testify. I guess the point here is the exhaustion factor. Look, they'll get over that. I've seen long votes on the Senate floor. If it's the government shut down, the health care vote, Senator John McCain gave his famous thumbs down healthcare speech about two in the morning.
So this is not all that unusual on the first day here. But I think just the sense of goodwill here. How are the senators leaving the chamber this evening. And there is no doubt that Democrats are still trying to get some cooperation from Republicans. So it's what Mitt Romney told our Manu Raju more than 12 hours ago. He hopes the democrats keep in mind the fact that you know, there are some senators on the Republican side listening and are willing to have an open mind here and he was hoping that they don't sort of blow it.
So we'll see. We'll talk to the senators as they come out of the chamber and this will move on. But I think it's one question we'll be seeing as we go into the daylight hours, was this a smart strategy from Senator Schumer. We'll see.
CUOMO: Romney also said to Manu if everything is an outrage then nothing is an outrage, not an original line, but it should be relevant in here. So the idea is you need some of these people. It's not the House, it's the Senate. There's some open minds in there. And by larding all of these on here at night and keeping everybody up so late, the Chief Justice has to go to work in seven hours and 30 minutes. Basically, he has to be at the Supreme Court this day. Now, I don't like you.
[01:25:31]
HILARY ROSEN, CNN POLITICAL COMMENTATOR: Well, you know, of course, this condensed timetable is because Mitch McConnell and the White House wanted a condense time table. What I think Chuck Schumer has done effectively today with the House managers in particular, you know, Adam Schiff, is they really made the case with the documents amendment with compelling witnesses and amendments to -- that it is the Republicans obstructing justice with the president. I think that they did a good job in demonstrating those things. I
think now these last two amendments which are more process-oriented, trying to get the Senate to, you know, adjust timing on votes and put people on record on votes, I think that that begins to drain the effectiveness, I think, of some of what they've accomplished.
But I do think that for a couple of hours there, they were really making a good case, that in fact, when Republican senators were voting down, compelling these witnesses to come, that they weren't going against the will of the people.
CUOMO: Now, Bolton is interesting. Certainly, there's high interest in him, but it also must be said. You know, Mr. Bolton has tried to have it both ways here. There's nothing stopping him from doing an interview with us right now, or for talking to the media offering up. He doesn't have to be subpoenaed to speak and he is not enjoined, he has not kept from testifying because of being an active member of the administration. So let's go back now into the Senate chamber and see what has happened.
(BEGIN VIDEOTAPE)
ROBERTS: Is there any senator in the chamber who wishes to change his or her vote? If not, the yeas are 52, the nays are 48. The amendment is tabled. The Democratic Leader is recognized.
SCHUMER: Mr. Chief Justice, on behalf of Senator Van Hollen, I send an amendment to the desk to help ensure impartial justice by requiring the Chief Justice of the United States to rule on motions to subpoena witnesses and documents. I asked that this be -- it be read. This is our last amendment of the evening.
ROBERTS: The clerk will report.
UNIDENTIFIED FEMALE: Senator from New York Mr. Schumer for Mr. Van Hollen proposes an amendment number 1294 on page three, line 20, insert the presiding officers show rule to authorize the subpoena of any witness or any document that a senator or a party moves to subpoena if the Presiding Officer determines that the witness or document is likely to have probative evidence relevant to either article of impeachment before the Senate after order.
ROBERTS: The amendment is arguable by the parties for two hours equally divided. Manager Schiff, are you a proponent or opponent of the motion?
SCHIFF: Proponent.
ROBERTS: Mr. Cipollone, are you a proponent or opponent?
CIPOLLONE: Opponent.
ROBERTS: Mr. Schiff, you may proceed and reserve time for rebuttal.
SCHIFF: Senators, this amendment would provide that the Presiding Officer shall rule to authorize the subpoena of any witness or any document -- excuse me. The Presiding Officer shall rule to authorize the subpoena of any witness or any document that a Senator or a party moves to subpoena if the Presiding Officer determines that that witness is likely to have probative evidence relevant to either article of impeachment.
It's quite simple. It would allow the Chief Justice, it would allow senators, the House managers, the President's Council to make use of the experience of the Chief Justice of the Supreme Court to decide the questions of the relevance of witnesses. And either party can call the witnesses. If we can't come to agreement on witnesses ourselves, it would pick a neutral arbiter, that being the Chief Justice of the Supreme Court.
And if the Chief Justice finds that a witness would be provocative, that witness will be allowed to testify. If the Chief Justice finds their testimony would be immaterial, that would just would not be permitted to testify.
[01:29:55]
Now, it still maintains the Senate tradition that, if you don't agree with the Chief Justice, you can overrule him. You have the votes, you can overrule the Chief Justice and say you disagree with what the Chief Justice has decided. But it would give this decision to a neutral party.
That right is extended to both parties. It will be done in line with the schedule that the Majority Leader has set out. It's not the schedule we want. We still don't think it makes any sense to have the trial and then decide on witnesses but if we're going to have to do it that way -- and it looks like we are -- at least let's have a neutral arbiter decide much as he may loathe the task, whether a witness is relevant or a witness is not.
And we would hope that, if there's nothing else we can agree on tonight, that we could agree to allow the Chief Justice to give us the benefit of his experience in deciding which witnesses are relevant to this inquiry and which witnesses are not.
And with that I reserve the balance of my time.
CHIEF JUSTICE JOHN ROBERS, SUPREME COURT OF THE UNITED STATES: Mr. Sekulow?
JAY SEKULOW, DONALD TRUMP'S ATTORNEY: Mr. Chief Justice, members of the Senate -- and with no disrespect to the Chief Justice. This is not an appellate court, this is the United States Senate. There is not an arbitration clause in the United States constitution. The Senate shall have the sole power to try all impeachments. We oppose the motion -- the amendment.
(INAUDIBLE)
ROBERTS: Mr. Schiff, you have 57 minutes remaining.
SCHIFF: Well, this is a good note to conclude on because don't let it be said we haven't made progress today. The President's council has just acknowledged for the first time that this is not an appellate court. I'm glad we have established that. This is the trial, not the appeal.
And the trial ought to have witnesses and the trial should be based on the cold (ph) record from the court below because there is no court below because as the counselor has just admitted you are not the appellate court.
But I think what we have also seen here tonight is they not only don't want you to hear these witnesses, they don't want to hear them live. They don't want really to hear them deposed. They don't want a neutral justice to weigh in, because if the neutral justice weighs in and says, you know, pretty hard to argue that John Bolton is not relevant here. Pretty hard to argue that Mick Mulvaney is not relevant here. I just watched that video tape where he said he discussed this with the President. They are contesting it. It's pretty relevant.
But what about Hunter Biden? Hunter Biden is probably the real reason they don't want the Chief Justice to have to rule on the materiality of a witness, right? What can Hunter Biden tell us about why the President withheld hundreds of millions of dollars from Ukraine? I can tell you what he could tell us. Nothing.
What does Hunter Biden know about why the President wouldn't meet with President Zelensky? He can't tell us anything about that. What can he tell us about these Defense Department documents or OMB documents?
What can he tell us about the violation of the law and withholding this money. Of course, he can't tell us anything about that. Because his testimony is immaterial and irrelevant.
The only purpose in calling him is to succeed in what they failed to do earlier in this whole scheme. And that is to smear Joe Biden by going after his son.
We trust the Chief Justice of the Supreme Court to make that decision that he is not a material witness. This isn't like fantasy football here. We are not making trades or we shouldn't be. We'll trade you one completely irrelevant, immaterial witness that allows us to smear the President's opponent in exchange for ones that are really relevant that you should hear.
Is that a fair trial? If you can't trust the Chief Justice, appointed by a Republican president, to make a fair decision about materiality, I think it betrays the weakness of your case.
I'll be honest. There has been some apprehension on our side about this idea. But we have confidence the Chief Justice would make a fair and impartial decision, that he would do impartial justice. And it's something that my colleagues representing the President don't. They don't.
[01:34:58]
SCHIFF: They don't want a fair judicial ruling about this. They don't even want one that you could overturn. Because they don't want a fair trial.
So we -- we end where we started with one party wanting a fair trial and one party that doesn't. One party that doesn't fear a fair trial and one party that is terrified of a fair trial.
I yield back.
ROBERTS: The Majority Leader is recognized.
SENATOR MITCH MCCONNELL (R-KY), SENATE MAJORITY LEADER: Mr. Chief Justice -- I make a motion to table the amendment. And I ask for the yeas and nays.
ROBERTS: Is there a sufficient second?
The clerk will call the role.
UNIDENTIFIED FEMALE: Mr. Alexander, Ms. Baldwin, Mr. Barrasso --
(END VIDEO CLIP)
CHRIS CUOMO, CNN HOST: A couple of interesting developments here in the last few minutes. The amendment before this one which was a very simple a matter about how much time a side gets to respond to any motion that happens. Literally, that's what it was about.
It was the first vote of the day where we didn't have a straight party line vote. It was arguably one of the less relevant amendments of the day.
So what was different? One Republican crossed the line. Who? Senator Collins from Maine voted not to table the amendment so it goes as a nay vote. That could be a little misleading. Nay means don't table it, let's deal with it. Let's vote on it for real. Let's have it. So she crossed the line on that.
Now, the next amendment, arguably -- and I'll bring in Hilary Rosen here for a better mind's perspective on it -- but it was the most interesting political play of the day -- Hilary.
The amendment is you and I are going to fight left and right about the witnesses and whether they are relevant to this. Instead of just letting you overpower me with the numbers, let's let this guy decide it -- the Chief Justice. And that is an interesting play.
HILARY ROSEN, CNN POLITICAL COMMENTATOR: I thought it was a -- it's a smart way to end the day. Because it says look, you have a Republican appointed Chief Justice and a Republican dominated Supreme Court at this point. And you don't want us to decide? Fine. You don't want this trading back and forth of witnesses? Fine. Let an impartial justice decide on the relevance of witnesses.
And if senators can't agree on that, then they really, according to the House managers, what I think and they really don't want an impartial analysis. They want a, you know, partisan analysis of witnesses. CUOMO: Well, it created a pickle because that is an argument that is
allowed.
ROSEN: Yes.
CUOMO: The other side of the argument is well, this is about us not about him but you still have to reject the, you know, the Chief Justice of the Supreme Courts.
Michael Zeldin is also joining us -- brilliant lawyer. Knows a lot of people involved in this. That was a good play -- Michael. Let's be honest. It puts the Senate -- the Republican senators in an interesting position.
They have high ground as Jay Sekulow came out, he didn't say it the right way but basically what he meant to say was the Senate controls here. But the way he said it created an opportunity as well. He said this is not an appellate court.
Schiff then came right back out after he was done and said finally we've made progress -- Counselor, that this is not the appellate court. It is the trial court. You should be establishing a record. We should be having witnesses.
Now, that is a little bit of an insider's game for lawyers who understand the parlance. How did it play for you?
MICHAEL ZELDIN, CNN LEGAL ANALYST: Well, I thought first and overarchingly -- Schiff has done a really good job today both in laying out the merits of the case and the process points around fairness.
This last point is consistent with the rules of the Senate which authorized the Chief Justice to rule on matters of evidence. So here they have said these pre-existing rules that allow the Chief Justice to rule on evidence should be moved over to the justice on relevancy of witnesses.
It's a small step from the existing rules. I think it was a very smart step and it leaves the Republicans in an awkward position of saying, essentially, we don't trust the Chief Justice. I liked it.
CUOMO: Right. So we'll see now.
Let's head back in to the gallery here and see what the Chief Justice has to tell us about the vote.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: Mr. Sullivan.
Mr. Tester.
Mr. Thune.
Mr. Tillis. Mr. Toomey.
Mr. Udall.
Mr. Van Hollen.
Mr. Warner.
CUOMO: We're at the last few votes here. I don't want to miss the Chief Justice given how he is central in this particular amendment.
[01:39:52]
CUOMO: So they'll finish the role. They tabulate. He then announces.
Now remember, the Chief Justice has been party to two of the bigger moments of the night. Let's listen.
He admonished both sides for civil discourse and referred to back in the day in the early 1900s when pettifogging -- that's the word, was seen as wrong.
Now he is on --
ROBERTS: Is there any senator in the chamber who would like to change his or her vote? If not the yeas are 53, the nays are 47. The amendment is tabled.
MCCONNELL: Mr. Chief Justice --
ROBERTS: The Majority Leader is recognized.
MCCONNELL: I would like to say on behalf of all of us we want to thank you for your patience.
ROBERTS: It comes with the job.
MCCONNELL: On scheduling, assuming there are no more amendments, the next vote will be on adoption of the resolution. And then all senators should stay in their seats until the trial is adjourned for the evening.
ROBERTS: The question first on Senate resolution 483. There is a sufficient second? Ok.
The clerk will call the roll.
UNIDENTIFIED FEMALE: Mr. Alexander.
Ms. Baldwin.
CUOMO: All right. So now that we have had the debate on all the amendments, they will have the vote on whether the resolution passes, which is the overall set of rules and procedures for this going forward. The Chief Justice there when thanked by the Majority Leader for his patience said it comes with the job. And what a job he is going to have.
He will be in court at the Supreme Court at ten this morning, right. It is 1:40 now. He's going to have to be there basically straight from this, not much time for him. And who knows for how long this is going to continue.
Now politically -- Hilary, the play for Schumer was I'm going to put this in front of people's faces all night and let them see what has been denied. The plus is that. The negative is, senators who are listening and maybe malleable, may be now frustrated or upset.
ROSEN: I don't think that there was a realistic chance that any of these Republican senators were going to go against Mitch McConnell or Donald Trump. And so I think that what Chuck Schumer was actually doing was playing to the gallery, to the public and saying, let me show you all of the different ways where the Republicans are preventing you from getting the full story.
And by doing that vote after vote, amendment after amendment, he was slowly building his case. And as I said I think that that was -- that's to play to the public. And we've seen this subtle shift over the last week in the public opinion around people actually believing this is a trial, there ought to be witnesses.
And I'd be curious, you know -- your thought on this which is I'd like to get inside of John Roberts' head. He was a trial judge before he was, you know, Chief Justice of the Supreme Court. He's got to be sitting there thinking this isn't how trials are supposed to go.
CUOMO: No. He's asking his questions. You know, we heard Michael Zeldin, you will remember this very well. You know, then Chief Justice Rehnquist ,obviously a mentor to Roberts --
ROSEN: Right.
CUOMO: -- was kind of bemused at the entire situation. At one point the sergeant at arms had to tell him not to be playing poker in the back room. That was some laugh (ph) for him during some of the longer pieces of this.
The idea of it being a straight party line vote that the Chief Justice can't negotiate who is relevant and who is not. How does that play?
ZELDIN: Well, I think it plays, you know, in an unknowable way -- which is to say we don't know what the votes are going to be with respect to witnesses. We don't even know if there're going to be votes on witnesses so we don't know what it is that they would come to the Supreme Court Justice with.
So I think this is really more a matter of showmanship by the Democrats to say look, you don't even trust the Supreme Court Justice to make a ruling on relevancy of witnesses. And that I think resonates with people who are wanting a fair trial. We've got this Benjamin Button sort of trial here where we're starting backwards than going forward and it doesn't make any sense. And it would have been nice for the Supreme Court justice to have a role to play in this, but the Republicans just don't want it. They just don't want it -- Chris.
CUOMO: Well, if you are going to wind up with the result like a young Brad Pitt, it would probably wind up having a much more satisfactory end than what is expected here in terms of the vote.
Michael -- I think one of the questions for the people who are watching to the extent that they want to consume this kind of duration of political argument is, what is it going to be like tomorrow when they lay the arguments out today?
[01:45:01]
ZELDIN: It's going to be quite similar to what we heard today. I mean the odd part of today was the House managers laid out their argument quite compellingly. And now they're going to just do it again tomorrow, and I think -- I guess it is a repeat it, repeat it, repeat it and hope that people, you know, accept it because --
CUOMO: All right.
ZELDIN: -- they have nothing addition to -- really additionally to add to what they said today.
(CROSSTALKING)
CUOMO: Well, Hilary -- let's go back to the floor and just see them conclude this vote.
ROSEN: Yes.
CUOMO: We're back there now. We're waiting for this to wrap up. This is the big vote really of the day which is will the resolution for the rules going forward for this trial be adopted? The amendments, the arguments that we have had all day, were to change this resolution.
The tally has been done, and now we will see what the pronouncement is.
You know, I think that's Chuck Schumer walking around, the Minority Leader. He walked up, talked to somebody at the top of the room. He's now -- he seems to be conversing with somebody else on the other side of the aisle.
McConnell is standing there -- I don't think he was speaking directly to the senator though. The room is divided, you have Democrats on the right if you are looking from the bench perspective; Republicans on the left.
Michael -- any guess as to what they are doing?
ZELDIN: I don't know. I think that they're just trying to figure out housekeeping matters. They're going to have this vote. It's going to pass along the 53 to 47 lines, and then they got to figure out what are they doing tomorrow. When are they coming back? How are they opening this trial? Who's going to say what to whom and when?
And then figure out how they are going to last. They have got these 24 hours over a three-day period, and they can run it 12 hours like they did today or they can run it three days of eight.
I think that there is some house -- sort of keeping stuff that has to be taking place between these senators at the moment. Because they also have ordinary business to take to tomorrow as well.
And so I think there is hopefully some compromising going on here around scheduling and procedures so that we have not the need to sit through 12 more hours of testimony tomorrow.
CUOMO: That's what McConnell originally wanted. Two days, 12 hours each for each side. So four days of argumentation.
Clinton, it was four days each, six hours a day -- 24 hours is the allotment, their rule. So it is about how much you have to take in each day. Maybe that is what's going on.
ZELDIN: Yes, exactly. Because this is a pretty abusive day for the viewing audience.
CUOMO: Well, Michael -- let me do this. Sorry to cut you off, pal. But let me go to Jeff Zeleny, see if he has a better sense of what's going on in the gallery -- Jeff?
JEFF ZELENY, CNN SENIOR WASHINGTON CORRESPONDENT: Chris -- it is, as Michael was saying, a housekeeping matter. And you did see Senator Schumer there reaching over and speaking very briefly with the Senate Majority Leader Mitch McConnell.
This is a fascinating shot right here. If we look at this at this point, in the very back of the chamber you see Amy Klobuchar and Elizabeth Warren standing back there. You see all of the senators here present.
This is -- they had been walking around the Senate floor, they are trying to essentially decide the rules of the road here. What is going to happen tomorrow, the timing of this.
So, you know, at the end of a very acrimonious day of debate -- and this Senate has seen many acrimonious days of debate. And we shouldn't be surprised by this.
But I am struck by, Chris -- when you really look at that shot there, how close the sides are. After really, you know, such a long impeachment inquiry here, the President's lawyers have never come face to face with the House managers. They are just a few feet apart on the Senate floor. So you heard the Chief Justice, of course, admonish both sides.
So right now, I think a lot of the attention is dissipating a bit, but they are doing some type of housekeeping measure, or it is possible that the vote is not complete because someone may have stepped out.
This is unusual in some respects, but with the Senate Majority Leader standing up there, he is beginning to wait for the Chief Justice to read the roll call here. And this, we should point out, this is the overall resolution to establish the rules of the trial going forward. That's what this benchmark is here.
So let's just wait a little bit longer. We'll try and see if our Hill team there has any more information about specifically --
CUOMO: Yes -- just let me know.
[01:49:56]
ZELENY: -- what the argument here is. But it's interesting just to watch the peace and quiet actually on the Senate floor at this very early hour here today in Washington.
CUOMO: Peace and quiet, also known as exhaustion.
ZELENY: For sure.
CUOMO: The average age --
UNIDENTIFIED FEMALE: Mr. Heinrich.
CUOMO: Here we go
UNIDENTIFIED FEMALE: No.
ZELENY: And actually I think that explains there. Senator Martin Heinrich of New Mexico clearly had not voted yet. So the senators were waiting on that.
ROBERTS: Is there a senator in the chamber who would like to change his or her vote? If not, the ayes are 53, the nays are 47. The resolution is agreed to.
The Majority Leader is recognized.
MCCONNELL: As unanimous consent, the trial adjourn until 1:00 p.m. Wednesday, January 22 and that this order also constitute the adjournment of the Senate.
ROBERTS: Without objection? So ordered. The Senate is adjourned.
CUOMO: All right. So there you have it. They have adopted the rules of the road going forward.
This odd delay here at the end was because one of the senators wasn't in the room. That is not something that has been unusual today, either. This is tough. Over 12 hours in there.
We had earlier on, a senator was called out, a Republican senator was called out by Minority Leader Chuck Schumer for not being in the room because she was doing an interview over on Fox TV. So these are little things.
The bigger moment to recognize is that we now know the rules. And obviously, the Democrats are against them. Almost every amendment vote today was done along party lines. There will be no 100 to zero type of agreement and bipartisan -- any sense of this being bigger than that. That trend seems to stay.
What is a little different is the Chief Justice. Jeff Zeleny pointed out to you, things can get rough in the Senate. It's just usually supposed to be better than the House.
And it was interesting for the Chief Justice on day one to admonish both sides -- maintain civil discourse. No staring at each other. No high voices with each other. Be civil here.
And he cited an example where pettifogging as a word was seen as too much back in the early 1900s. He said we may not make that bar but we should aspire to be as good as we can be to one another.
If you look up the etymology of that word and you may understand a little bit better why they didn't want it on the Senate floor.
And interesting, only one vote today wasn't 53-47 and it was a really nothing amendment about how much time you get to respond to a motion by one side.
It's interesting that the final amendment before the resolution vote which was to allow the Chief Justice to negotiation disputes on any witness call that you would think maybe if a Republican was going to cross the line it would be in his favor.
Now the senators are filing out. It has been a long day. They've got to be back tomorrow. One, there is other business that they have to attend to. The Chief Justice is due in court in just about six hours to do the business of the Supreme Court.
We're trying to get some reporting about what it was like in that room. We are going to try and get one of the senators for you here.
Hilary Rosen -- as Michael said and you have to pretty much see it this way, tomorrow will look a lot like today. That is difficult because you don't want it to sound like it did today to people because it makes it seem like you don't have anything else to say.
ROSEN: Right. And, you know, there was a little bit of a flurry today when the senators went to their private, respective luncheons that potentially some of the Republicans who are going to revolt against Mitch McConnell's strict rules, that ended up not happening.
As you said, the party line votes continued all through the Chuck Schumer's amendments to change the rules to open up this trial to be more accommodating of additional facts and witnesses and documents, importantly documents.
And so I think what we have now is kind of a bit of anti-climactic activity tomorrow because now we will see tomorrow go pretty much the way the country has been expecting it to go which is that the Republicans are going to, you know, insist that there is nothing here for the President to, you know, to be punished for. And the Democrats are going to once again make that same case that they've made today in the House.
But without new witnesses, without new facts, without new documents -- it is going to be a bit of a repeat, you know. And I think we'll see over the next 24 to 36 hours whether the public is upset about these Senate votes today to withhold witnesses, to withhold documents.
CUOMO: So now you have this strategy at play, and the first line of attack is, well, this isn't as fair as Clinton was. And ordinarily in politics, you like to stay away from looking to the past to justify why you were ok in the present. Often it shows a weakness of position. But here it is about procedure.
[01:54:55]
CUOMO: So let's get some minds on this. We have Jimmy Schultz and we have Renato Mariotti here, and we have Michael Zeldin -- three good legal minds about this type of situation.
Renato -- let me bring you in here tonight. The idea of this isn't as fair as Clinton was, but let's see it. You have the dividing of the hours over how many days, fine. There's a point to that.
But really it is about witnesses. And witnesses were voted on after the opening arguments in that impeachment trial as well. What is the argument that it should be different this time?
RENATO MARIOTTI, CNN LEGAL ANALYST: Well, in the impeachment trial, there is no real question about what happened -- Chris. I mean everyone knew that President Clinton had lied and directed others to lie about his, you know, his relationship with Monica Lewinsky.
The question here is really we still haven't gotten to the bottom of what has happened. I mean there are still questions being raised. There is Mr. Parnas and others are making allegations in this network and others.
We don't really know all the details of what happened. We haven't heard from a lot of the witnesses. And I think that's really what makes this a different situation.
CUOMO: Jim -- the idea that the witnesses and Clinton -- all three of them were already on the record, Mr. Starr as independent counsel, now a member of President Trump's defense team, you know, he interviewed like everybody who had ever even heard of the situation.
So there was such a complete record that you don't have here. Is that a meaningful distinction here?
JIM SCHULTZ, FORMER TRUMP WHITE HOUSE LAWYER: I don't think it's a meaningful distinction at all. I think it was Mike (INAUDIBLE) or it might have been Cipollone who made the argument that this is not the job of the Senate, this is the job of the House. The House, in this case, didn't do their job. And that's a real problem here and they rushed to judgment on everything and it was done in a partisan manner, and Nadler said years ago this should never be done in a partisan manner.
And you know, that's just indicative of the way they handled it from day one. Now, they just want to whine, whine, whine about not having witnesses at this trial. The problem is they didn't develop a factual record when they could have.
And you could say all day long, well, you know, there was obstruction by the White House on this. There is a mechanism for that. And they said well, it's going to take too long.
Well, guess what, that's what the justice process calls for. To go to court and fight over subpoenas and fight over these issues. And they weren't willing to even have the fight.
In Bolton's case they weren't even willing to call him or subpoena him --
(CROSSTALKING)
CUOMO: No, that's -- hold on, Jimmy. That's not -- that's not -- hold on.
(CROSSTALKING)
SCHULTZ: They weren't willing to subpoena him.
CUOMO: Schiff argued what happened there and it was not rebutted by the other side and that's usually good indication that he had it right, which was when they were told by Bolton's counsel that I am going to sue you if you subpoena, they decided not to do it because it was one more in a pattern of restriction of access.
So let me take the question to Michael Zeldin.
SCHULTZ: But did they subpoena him, though? Did they even take the --
CUOMO: They did not because they were told what was going to happen.
(CROSSTALKING)
CUOMO: The point becomes --
SCHULTZ: Oh ok.
(CROSSTALKING)
CUOMO: -- what is the most expeditious process?
SCHULTZ: So we'll just (INAUDIBLE) and forget about justice, forget about the court system.
CUOMO: Jim please. Jim please -- don't get so high minded -- don't get so high minded about justice.
You pointed out that Jerry Nadler used to argue the opposite. They all did. Lindsey Graham used to argue the opposite as he does now.
McConnell, opposite --
(CROSSTALKING)
SCHULTZ: This is a political process.
CUOMO: Well, when you cherry pick it --
SCHULTZ: That's a partisan process.
CUOMO: -- When you cherry pick it, you become part of that process. Here, try to be above it.
Michael -- let me bring you in on this. The idea that the House didn't do its job versus the House wasn't allowed to do its job and the idea that the courts are the proper avenue of recourse for deciding whether or not Congress has oversight powers -- that's what the question is. It's not typical litigation, Michael -- where you and I have a good faith disagreement.
When congress subpoenas somebody, it is not like every subpoena gets litigated, right?.
ZELDIN: Well, you're exactly right.
So a couple of things. First is, the House has established a substantial record in respect of each of those articles of impeachment. There is a fulsome record upon which the Senate could vote to convict on the articles as they are.
What the House has said is we were not allowed to get access to these additional witnesses and these additional documents. So you, the Senate, who has the sole power to try this case, should conduct a trial. And you should use your subpoena power to get that which we couldn't get.
That's what the Senate majority is refusing to do. They are refusing to conduct a trial to augment or to find disagreement with what the House came forward with in their hearing.
So the notion that they should have gone to court, they should have gone -- this is basic blocking and tackling for the Senate. When they want to have witnesses, they know how to subpoena them, and they should subpoena them because they are the trial body here.
The House was the indicting party. The Senate is the trial party.
CUOMO: Right.
[01:59:56]
ZELDIN: And they should bring in witnesses to let them reach a conclusion whether the President did anything legal, illegal, wrong, impeachable, and let it be decided on the merits of the evidence that they bring forth.
END
