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Trump Legal Team Begins Final Day Of Arguments. Aired 1-1:30p ET

Aired January 28, 2020 - 13:00   ET

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

[13:00:00]

JAKE TAPPER, CNN ANCHOR: Because, as of now, there is clearly not 67 votes in favor of removing President Trump from office. So to question about whether or not there will be more witnesses, more documents or not.

WOLF BLITZER, CNN ANCHOR: Yes. They'll have 16 hours for these questions to be submitted in writing to the chief justice and they will direct the questions for the various legal teams, the Democratic House managers and the president's lawyers. That's two days, basically, potentially, for questions.

Dana, you're up on the Hill. What are you seeing, what are you hearing?

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: That everybody is getting ready to hear the final argument, the closing argument from the president's team. They took less time than the Democrats did to prosecute their case, as expected, because they want to get on with it. They want to make their case and get on with it, which is what we expect to see and hear in the couple of hours that sources are telling us that they will take this morning to wrap up their case.

Big picture, expect them, of course, to be arguing against the need for impeachment on these issues for either article, that they're going to argue that the president should not be convicted. But also as part of that argument, certainly expect them to be beating back the notion of witnesses to continue this trial and to prolong this trial. That will, no doubt be, if not explicit, certainly implicit in the arguments that they're going to make when we see them begin in a matter of seconds.

TAPPER: All right, Dana Bash on Capitol Hill.

Let's talk about this with our panel while we wait for Chief Justice Roberts to gavel the session, the Senate into session.

And, Gloria Borger, one of the things that's interesting here is that kind of the next few days don't really matter. What really matters is Friday. I mean, we know there are not 67 votes to remove President Trump from office. The question is whether there are even 51 to push for more witnesses, including John Bolton. And we've now heard from a number of individuals who say -- and including Mitt Romney and Susan Collins, maybe Lisa Murkowski is kind of hedging (ph) it, that Bolton has something to offer.

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: So what's going on behind the scenes is so much important right now, even in the closing argument, because they are trying to figure out, can we -- if you're a Republican, can we get away with just reading a manuscript and not calling John Bolton as a witness? Do we maybe interview him in a classified setting? Do we have to do some kind of a one-for-one trade, which some Republicans have suggested and Democrats have dismissed?

And I think what Mitch McConnell is trying to do is kind of let this all calm down, as he said to his Republicans yesterday, let this play out a little bit.

The Q&A session is going to be dynamic, so we'll have to see how the lawyers respond to clearly what are going to be some very pointed questions from both sides, but they've got this elephant in the middle of the room, and it's John Bolton, and they're trying to figure out how to deal with it, if you're Republican, without looking like you're trying to avoid important evidence that is sitting right in front of you.

TAPPER: Absolutely.

JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: And so you're trying to sway the public in the sense that if it wasn't clear to them already, Leader McConnell's office has made clear to the president's lawyers, we expect Mr. Cipollone and Mr. Sekulow to speak today. They have been more political in their arguments, less legal and more political, more pointed in their criticism.

McConnell's office has made clear to them, do no harm, do no harm. We're in a very delicate situation right now. Do not stoke the Republicans who might be open to witnesses by saying anything that raises those questions. Then they go into luncheon, and Mitch McConnell will do some math and he'll try to figure out what happened.

And then I do think that that's why the 16 hours of questions, well, we want to know what's happened behind the scenes as that plays out, but that will be used by both sides to make the case pro and con. Can we just read the Bolton transcript, is that enough, is there something else? Well, even if Bolton said all those things in the newspapers right now, is that an impeachable offense? We're going to watch this play out in the 16 hours of questions. It will be lobbying (ph) for votes.

BLITZER: The chief justice.

(SENATE IMPEACHMENT TRIAL)

JOHN ROBERTS, CHIEF JUSTICE OF THE UNITED STATES: The Senate will convene as a court of impeachment. The chaplain will lead us in prayer.

BARRY BLACK, SENATE CHAPLAIN: Let us pray.

Oh God you are our rock of safety. Protect us in an unsafe world. Guard us from those who smile but plan evil in their hearts. Use our senators to bring peace and unity to our world. May they permit Godliness to make them bold as lions.

Give them a clearer vision of your desires for our nation. Remind them that they borrow their heartbeats from you each day. Provide them with such humility, hope and courage that they will do your will. Lord grant that this impeachment trial will make our nation stronger, wiser and better.

We pray in your strong name, amen.

ROBERTS: Please join me in reciting the Pledge of Allegiance for the flag. I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one nation under God, indivisible with liberty and justice for all.

Please be seated. If there is no objection the journal of preceding of the trial are approved to date. Without objections, so ordered. The Sergeant in Arms will make the proclamation.

SERGEANT-AT-ARMS: Hear ye, hear ye, hear ye. All persons are commanded to keep silent on pain of imprisonment while the Senate of the United States is sitting for the trial of the articles of impeachment exhibited by the House of Representatives against Donald John Trump, President of the United States.

SEN. MITCH MCCONNELL (R-KY): Mr. Chief Justice --

ROBERTS: The Majority leader is recognized.

MCCONNELL: We expect several hours of session today with probably one quick break in the middle.

ROBERTS: Thank you. Pursuant to the provisions of Senate resolution 483 the counsel for the President have 15 hours and 33 minutes remaining to make the presentation of their case though it will not be possible to use the remainder of that time before the end of the day. The Senate will now hear you.

PAT CIPOLLONE, WHITE HOUSE COUNSEL FOR PRESIDENT DONALD TRUMP: Thank you, Mr. Chief Justice. Members of the Senate just to give you a very quick brief overview of today. We do not intend to use much of that time today, Mr. Chief Justice.

We intend to be -- our goal is to be finished by dinner time and well before. We'll have three presentations. First will be Pat Philbin, deputy White House Counsel. Then Jay Sekulow will give a presentation. We'll take a break if that's okay with you, Mr. Leader, and then after that I'll finish with a presentation.

So that's our -- our goal for the day, and with that, I'll turn it over to Pat Philbin.

PAT PHILBIN, DEPUTY COUNSEL TO PRESIDENT DONALD TRUMP: Mr. Chief Justice, members of the Senate, Majority Leader McConnell, Minority Leader Schumer, I'd like to start today by making a couple of observations related to the abuse of power charge in the first article of impeachment, and I -- I wouldn't presume to elaborate on Professor Dershowitz's presentation from yesterday evening, which I thought was complete and compelling, but I wanted to just add a couple of very specific points in support of the exposition of the Constitution and the impeachment clause that he set out.

And it begins from a focus on the point in the debate about the impeachment clause at the Constitutional Convention, where maladministration was offered by George Mason as a grounds for impeachment, and James Madison responded that that was a bad idea, and he said, "So vague a term will be equivalent to a tenure during the pleasure of the Senate." And that evinced deep-seated concern that Madison had, and it's part of the whole design of our Constitution for ways that can lead to exercises of arbitrary power.

The Constitution was designed to put limits and checks on all forms of government power. Obviously, one of the great mechanisms for that is the separation of powers, the structural separation of powers in our Constitution.

But it also comes from defining and limiting powers and responsibilities, and a concern that vague terms, vague standards are themselves an opportunity for the expansion of power and the exercise of arbitrary power, and we see that throughout the Constitution, and in the impeachment clause, as well.

And this is why, as Governor Morris argued in discussing the impeachment clause, that only few offenses -- he said, "Few offenses ought to be impeachable, and the cases ought to be enumerated and defined."

And that's why we see in the debates at the Constitution there was -- many terms had been included in earlier drafts, when it was narrowed down to treason and bribery, and there was a suggestion to include maladministration, which had been a ground for impeachment in English practice. The framers rejected it because it was too vague. It was too expansive. It would allow for arbitrary exercises of power.

[13:10:12]

And we see throughout the Constitution, in terms that relate and fit in with the impeachment clause, the same concern. One is in the definition of treason. The framers were very concerned that the English practice of having a vague concept of treason that was malleable and could be changed even after the facts to define new concepts of treason, was dangerous.

It was one of the things that they wanted to reject from the English system. So they defined in the Constitution very specifically what constituted treason, and how it had to be proved, and then that term was incorporated into the impeachment clause.

Similarly, in the rejection of maladministration, which had been an impeachable offense in England, the framers rejected that because it was vague, a vague standard, something that's too changeable that can be redefined, can be malleable after the fact, allows for the arbitrary exercise of power, and that would be dangerous to give that power to the legislature as a power to impeach the executive.

And similarly -- and it relates, again, to the impeachment clause -- one of the greatest dangers from having changeable standards that existed in the English system was bills of attainder.

Undergo of attainder the parliament could pass is specific law saying that a specific person had done something unlawful they are being attained (ph) even though it wasn't unlawful before that. And the framers rejected that entire concept.

In article one section nine, they eliminated both bills of attainder and all ex post facto laws for criminal penalties at the federal level. And they also included a provision to prohibit states from using bills of attainder.

Now in the English system, there was a -- a relationship to some extent between impeachment and bills of attainder because both were tools of the parliament to get at officials in the government. You could impeach them for an established defense or you could pass a -- a bill of attainder.

And it was because the definition of impeachment was being narrowed that George Mason at the debate suggested, that you pointed out (ph), in the English system there's a bill of attainder. It's been a great useful tool for the government. But we're eliminating that and now we're getting a narrow definition of impeachment.

We ought to expand it to include (inaudible) administration. And Madison said no and the framers agreed. We have to have numerated and defined offenses, not a vague concept.

Not something that can be blurry and interpreted after the fact. And that could be used essentially to make policy differences or other differences like that the subject of impeachment.

All of the steps that the framers took in the way they approached the impeachment clause were in terms of narrowing, restricting, constraining and numerating offenses and not a vague and malleable approach as they had been in the English system.

And I think the minority views of Republican members of the House Judiciary Committee at the time of the Nixon impeachment inquiry summed this up and reflected it well because thy explained and I'm quoting from the minority views in the report.

The whole tenor of the framers' discussions, the whole purpose of their many careful departures from English impeachment practice was in the direction of limits and of standards.

An impeachment power exercised without extrinsic and objective standards would be (inaudible) to the use of bills of attainder and ex post facto laws which are expressly forbidden by the constitution and are contrary to the American spirit of justice.

And what we see in the House managers' charges and their definition of abuse of power is exactly antithetical to the framers' approach. Because their very premise for their abuse of power charge is that it is entirely based on subjective motive, not objective standards not predefined offenses.

But the president can do something that is perfectly lawful, perfectly within his authority. But f the real reason, as Professor Dershowitz pointed out, that's the language from their report. The reason is the president's mind is something that they fair it out and decide is wrong, that becomes impeachable.

And that's exact -- that's not a standard at all. It ends up being infinitely malleable. And is something that I think a telling factor that reflects how malleable it is and how dangerous it is in the House Judiciary Committee's report.

[13:15:00]

Because after they define their concept of abuse of power and they say it involves you're exercising government power for personal interest and not the national interest. And it depends on your subjective motives.

They realize that that's infinitely malleable. There's not really a clear standard there. And it's violating a fundamental premise of the American system of justice that you have to have notice of what is wrong. You have to have notice of an offense and this is something that Professor Dershowitz pointed out last night.

There has to be a defined offense in advance and the way they tried to resolve this is to say well in addition to our definition, high crimes and misdemeanors involve conduct that is recognizably wrong to a reasonable person and that's their kind of add on to deal with the fact that they have an unconstitutionally verge standard. They don't have a standard that really defines a specific offense.

They don't have a standard that really defines in coherence, terms that are going to be identifiable what the offenses are so they just add on and it's got to be recognizably wrong and they say that they're doing this to resolve a tension they called it, within the Constitution because they point out and this is quoting from the report, "The structure of the Constitution including it's prohibition on bills of attainder and the expo's facto clause implies that impeachable offenses should not come as a surprise".

That's exactly what Professor Dershowitz pointed out and everything about the terms of the constitution, speaking of an offense and a conviction, that it's -- crime should be tried by jury accept impeachments.

They all talk about impeachment in those criminal offense terms but the tension here isn't within the Constitution. It's between the house managers definition, which lacks any coherent definition of an offense that would catch people by surprise in the Constitution.

That's the tension that they're trying to resolve is between their malleable standard that actually states no clear offense and the Constitution and the principles of justice embodied in the Constitution it requires some clear offense.

So I wanted to point that out in relation to the standards for impeachable offenses because it's another peace of the constitutional puzzle that fits in with the exposition that Professor Dershowitz set out.

And it also shows an inherent flaw in the house managers theory of abuse of power regardless of whether or not one accepts the view that an impeachable offense has to be a crime, a defined crime.

There is still the flaw in their definition of abuse of power that it is so malleable based on purely subjective standards that it does not provide any cognizable notice of an offense. It is so malleable it in affect recreates the offense of maladministration at the framers expressly rejected as Professor Dershowitz explained.

The second point that I wanted to make is that how do we tell under the house managers standard what an illicit motive is or when there's an illicit motive. How are we supposed to get the proof of what's inside the President's head because of course motive is inherently difficult to prove what you're talking about.

As they've conceded (ph) they're talking about perfectly lawful actions on their face within the Constitutional authority of the President but they want to make it impeachable if it's just the wrong idea inside the President's head.

And they explain in the House Judiciary Committee report that the way you will tell if the President had the wrong motive is we'll compare what he did to what staffers in the executive branch said he ought to do.

So they say quote, "that the President 'disregarded United States foreign policy towards Ukraine' and that he ignored 'official policy' that he had been briefed on and that he "ignored, defied, and confounded every agency within the executive branch," end quote.

That is not a constitutionally coherent statement. The president cannot defy agencies within the executive branch. Article II, Section 1 of the Constitution vests all of the executive power in a president of the United States. He alone is an entire branch of government. He sets policy for the executive branch, he's given vast power.

And of course, within the limits set by laws passed by Congress, and within limits set by spending priorities, spending laws passed by Congress, he, within those constraints, sets the policies of the government.

[13:20:10]

And in areas of foreign affairs, military affairs, national security -- which is what we're dealing with in this case, foreign affairs, head-of-state communications -- he has vast powers. As Professor Dershowitz explained, for over two centuries, the president has been regarded as the sole organ of the nation in foreign affairs. So the idea that we're going to find out when the president had the wrong subjective motives by comparing what he did to the recommendations of some interagency consensus among staffers, is fundamentally anti-constitutional, it inverts the constitutional structure. And it's also fundamentally anti-democratic.

Because our system is rather unique in the amount of power that it gives to the president. The executive here has much more power than in a parliamentary system. But part of the reason that the president can have that power is that he is directly democratically accountable to the people. There is an election every four years to ensure that the president stays democratically accountable to the people.

But the staffers in these supposed interagency, who have their meetings and make recommendations to the president, are not accountable to the people.

There is no democratic legitimacy or accountability to their decisions or recommendations, and that is why it is the president, as head of the executive branch, who has the authority to actually set policies and make determinations regardless of what his staffers may recommend. They're there to provide information and recommendations, not to set policy.

So the idea that we're going to start impeaching presidents by deciding that they have illicit motives, if we can show that they disagreed with some interagency consensus, is fundamentally contrary to the Constitution and fundamentally anti-democratic.

So those are the two observations I wanted to add, to supplement specific points on Professor Dershowitz's comments from last night. Now, I want to shift gears and respond to a couple of points that the House managers have brought up that are really and completely extraneous to this proceeding.

They involve matters that are not charged in the articles of impeachment, they do not direct -- relate -- excuse me -- relate directly to the president or his actions, but they are accusations that were brought up, somewhat recklessly, in any event. And we cannot close without some response to them.

And the first has to do with the idea that somehow, the White House and White House lawyers were involved in some sort of cover-up related to the transcript of the July 25th call because it was stored on a -- a highly classified system.

So let me start with that. The House managers made this accusation, there was something nefarious going on. But let's see what the witnesses actually had to say.

Lieutenant Colonel Alexander Vindman, and remember Lieutenant Colonel Vindman is a person who was listening in on the call and who raised a concern -- the only person who went and raised a concern with NSC lawyers that he thought there was something improper, something wrong with the call. Even though he later conceded under cross-examination it was really a policy concern, but he thought there was something wrong. And he had to say that he did not think, he said, so I do not think there was malicious intent or anything of that nature to cover anything up.

He's the one who went and talked to the lawyers, he's the one whose complaint spurred the idea that wait, there might be something that's really sensitive here we should make sure that this is not going to leak. He thought there was nothing covering it up.

His boss, Senior Director Tim Morrison had similar testimony.

(BEGIN VIDEO CLIP)

STEVE CASTOR, REPUBLICAN COUNSEL: So to the best of your knowledge there's no malicious intent in moving the transcript to the compartmented server?

TIMOTHY MORRISON, FORMER NATIONAL SECURITY COUNSIL, RUSSIA DIRECTOR: Correct.

(END VIDEO CLIP)

PHILBIN: And the idea that there was some sort of cover-up is further destroyed by the simple fact that everyone who, as part of their jobs needed access to that transcript, still had access to it -- including Lieutenant Colonel Vindman. All right, so the person who raises a complaint, still has access to the transcript the entire time and this is the way Mr. Morrison's testimony explained that.

(BEGIN VIDEO CLIP)

CASTOR: And even on the code word server you had access to it.

ALEXANDER VINDMAN, NATIONAL SECURITY COUNCIL DIRECTOR FOR EUROPE: Yes.

CASTOR: So at no point in time during the course of your official duties were you denied access to this information --

[13:25:05]

VINDMAN: Correct

CASTOR: Is that correct. And to your knowledge, anybody on the NSC staff that needed access to the transcript for their official duties, always was able to access it, correct?

VINDMAN: The people that had a need to know and a need to access it --

CASTOR: Once it was moved to the compartmented system?

VINDMAN: Yes.

CASTOR: OK.

(END VIDEO CLIP) PHILBIN: Now as Mr. Morrison testified, he recommended restricting access to the transcript not because he had any concern that there was anything improper or illegal, but he was concerned about a potential leak. And as he put it, how that "would play out in Washington's polarized environment," and would "effect the bipartisan support our Ukrainian partners currently experience in Congress."

And he was right to be concerned, potentially about leaks because the Trump administration has faced national security leaks at an alarming rate. Lieutenant Colonel Vindman himself said that concerns about leaks seem justified, and it was not unusual that something would be put in a more restricted circulation.

Now, what else is in the record evidence? Mr. Morrison explained his understanding of how the transcript ended up on that server.

(BEGIN VIDEO CLIP)

MORRISON: I spoke with the NSC executive secretary of staff, asked them why, and they did their research and they informed me it had been (ph) moved to the higher classification system at the direction of John Eisenberg, whom I then asked why. I mean, that's -- if that was the judgment he made that's not necessarily mine to question, but I didn't understand it and he essentially told me I gave no such direction.

He did his own inquiry and he represented (ph) back to me that it was -- his understanding was it was a kind of administrative error that when he also gave (ph) direction to restrict access the executive secretary of staff understood that as an apprehension that there was something in the content of the memcon (ph) that could not exist on the lower classification system.

CASTOR: So to the best of your knowledge there's no malicious intent in moving the transcript to the compartmented server?

MORRISON: Correct.

(END VIDEO CLIP)

PHILBIN: Everyone who knew something about it and who testified agreed there was no malicious intent. The call was still available to everyone who needed it as part of their job, and it certainly wasn't covered up or deep sixed in some way.

The president declassified it and made it public, so why are we even here talking about these accusations about a cover-up when it's a transcript that was preserved and made public? It's somewhat absurd.

Now the other point I'd like to turn to, another accusation from the House managers is that the whistleblower complaint -- when the whistleblower complaint was not forwarded to Congress they've said that lawyers at the Department of Justice, this time, they accuse OLC, the Office of Legal Counsel of providing a bogus opinion for why the Director of National Intelligence did not have to advance the whistleblower's complaint to Congress. And Manager Jeffries said that LOC opined, "without any reasonable basis that the acting DNI did not have to turn over the complaint to Congress," and the way he portrayed this -- now there's a statue that says if the inspector general of the Intelligence community finds a matter of urgent concern it must be forwarded to Congress.

And Manager Jeffries portrayed this as if the only thing to decide was, were these claims urgent. He said, "what could be more urgent than a sitting president trying to cheat in an American election by soliciting foreign interference?"

That's not the only question, the statute doesn't just say if it's urgent you have to forward it -- it talks about urgent concern as a defined term. Now if the House managers want to come and cast accusations at the political and career officials at the Office of Legal Counsel, which we all know is a very respected office of the Department of Justice, provides opinions for the Executive branch on what governing law is -- they should come backed up with analysis.

So let's look at what the law actually says. And I think we have the slide of that -- urgent concern is defined as a serious or flagrant problem, abuse, violation of law relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the director of national intelligence involving classified information.

[13:30:05]