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Senators Ask Questions to House Managers, Trump Lawyers; Trump Attorney Argues Quid Pro Quos Are Used for Reelection Efforts Are Not Impeachable. Aired 3:30-4p ET

Aired January 29, 2020 - 15:30   ET

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

JAY SEKULOW, ATTORNEY TO PRESIDENT DONALD TRUMP: He said it would be targeting a rival, well, that's what that did. He said it would be calling for foreign assistance in that.

Well, in the particular facts of Crossfire Hurricane, it has been well-established now that, in fact, Fusion GPS utilized the services of a former foreign intelligence officer, Christopher Steele, to put together a dossier and that Christopher Steele relied on his network of resources around the globe, including in Russia and other places to put together this dossier, which then James Comey said was unverified and salacious.

[15:30:31]

But yet it was the basis upon which the Department of Justice and the FBI obtained FISA warrants. And this was in 2016 against a rival campaign.

So we don't have to do hypotheticals. That's precisely the situation. But to take it an additional step, this idea that a witness will be called, if this body decides to go to witnesses, that a witness will be called would be a violation of fundamental fairness. Of course if witnesses are called by the House managers through that motion, well, the president's counsel would have the opportunity to call witnesses as well, which we would.

Thank you, Mr. Chief Justice.

JOHN ROBERTS, CHIEF JUSTICE OF THE UNITED STATES: ROBERTS: Thank you, Counsel.

Senator?

SEN. KAMALA HARRIS (D-CA): Mr. Chief Justice, I sent a question to the desk. Thank you.

ROBERTS: Thank you.

The question from Senator Harris is for the House managers. President Nixon said, "when the president does it, that means that it is not illegal." Before he was elected, President Trump said, "when you're a star they let you do it, you can do anything." After he was elected, President Trump said that Article II of the Constitution gives him "the right to do whatever he wants as president."

These statement suggests that each of them believed that the president is above the law, a belief reflected in the improper actions that both presidents took to effect their re-election campaigns. If the Senate fails to hold the president accountable for misconduct, how would that undermine the integrity of our system of justice?

REP. ADAM SCHIFF (D-CA): Mr. Chief Justice, senators, I think this is exactly the fear. I think if you look at the pattern in this president's conduct and his words, what you see is a president who identifies the state as being himself.

When the president talks about people that report his wrongdoing, for example, when he describes a whistle-blower as a traitor or a spy, the only way you can conceive of someone who reports wrongdoing as committing a crime against the country is if you believe that you are synonymous with the country, that any report of wrongdoing against the president or the person of the president is a treasonous act.

It is the kind of mentality that says under Article II I can do whatever I want, that I'm allowed to fight all subpoenas. Now Counsel has given a variety of explanations for the fighting of all subpoenas.

They might have a plausible argument if the administration had given hundreds of documents but reserved some and made a claim of privilege, or the administration had said, we will allow these witnesses to testify but with these witnesses, with these particular questions, we want to assert a privilege.

But, of course, that's not what was done here. What we have instead is a shifting series of rationales and explanations and duplicitous arguments, some made in court and some made here.

You have the argument that the subpoenas aren't valid before the House resolution, and then with respect to subpoenas issued after the House resolution, like to Mulvaney, well, those are no good either.

You have the argument made that we have absolute immunity. And the court that addresses this says, no, you don't. You are not a king. That argument may be thought of with favor by various presidents over history, it has never been supported by any court in the land. There is no constitutional support for that either.

[15:35:02]

Documents that are being released right now, as we sit here, and it's mystery of the country and it's a mystery to some of us, how are private litigants able to get documents through the Freedom of Information Act that the administration has withheld from Congress?

If they were operating in any good faith, would that be the case? And, of course, the answer is no. What we have instead is "we're going to claim absolute immunity even though the court says that doesn't exist."

Now, they said "well, we -- you know, the -- the House withdrew the subpoena on Dr. Kupperman. Why would they withdraw the subpoena on Dr. Kupperman when he was only threatening to tie you up endlessly in court?"

Now, we suggested to counsel for Dr. Kupperman that if they had a good faith concern about testifying, if this was really good faith and it wasn't just a strategy (ph) to delay, if it wasn't just part of the President's wholesale fight all subpoenas, they didn't need to file separate litigation because there was actually a case already in court involving Don McGahn on that very subject, that was ripe for decision.

Indeed, the decision would come out very shortly thereafter and we said "let's just agree to be bound by what the McGahn court decides." Well they didn't want to do that and it became obvious once the McGahn court decision came out because the McGahn court said there's no absolute immunity, you must testify, and by the way, if you think people involved in national security, i.e. Dr. Kupperman and John Bolton, if you're listening, if you think you're somehow absolutely immune, you're not.

So did -- Dr. Kupperman said "well now I have the comfort I needed because the court has weighed in," the answer is of course not. Now, counsel says "well we might have gotten a quick judgment in Kupperman" -- yeah, in the lower court.

Do any of you believe for a single minute they wouldn't appeal the Court of Appeals and to the Supreme Court and if the Supreme Court struck down the absolute immunity argument, they wouldn't be back in the District Court saying "OK, he's not absolute immunity any more but we're going to claim executive privilege over specific conversations that go to the President's wrongdoing."

OK, that is the sign of a President who believes he's above the law, that Article 2 empowers him to do anything he wants. And I'll say this, if you accept that argument -- if you accept the argument that the President of the United States can tell you to pound sand when you try to investigate his wrongdoing, there will be no force behind any Senate subpoena in the future.

The fighting all subpoenas started before the impeachment. If you allow a President to obstruct Congress so completely in a way that Nixon could never have contemplated nor would the Congress of that day have allowed, you will eviscerate your own oversight capability.

(CROSS-TALK)

ROBERTS: The Majority Leader is recognized.

SEN. MITCH MCCONNELL (R-KY), MAJORITY LEADER: I suggest that we resume at 4:00.

ROBERTS: Without objection, so ordered.

(RECESS)

WOLF BLITZER, CNN HOST: All right, the first two and a half ours of questions for the House managers for the White House counsels over with thirteen and a half hours to go today and tomorrow if they use up all of that time.

There were lots of very, very tough, angry exchanges on both sides. A very significant point, though, Jake, Alan Dershowitz, the White House lawyer, he said something that I thought -- and a lot of people thought -- was pretty extraordinary. That if a President of the United States does something that he believes to be in the national interest and his own political interests, it's OK. There's nothing wrong with that. The only exception, he said, if there were quote, corrupt motives.

JAKE TAPPER, CNN HOST: Right, so this came in a question as most of the questions that were asked were actually not and our audience might be used to questions, because you wanted to find out the answer.

Most of the questions being asked were trying to get their own side to make a point that they thought was important. So Democrats asked questions that they thought the House impeachment managers could answer that would bring forward an argument that was good for the idea of removal.

Republicans did the converse with the President's defenders. This was a question as a matter of law to Alan Dershowitz and the President's defenders, does it matter if there was a quid pro quo? Is it true that quid pro quos are often used in foreign policy?

And they are often used in foreign policy, but not in order to achieve the President's personal political desired outcome. And that's the difference, of course.

[15:40:00]

And in the response to that -- and this is perhaps the most striking thing that has been said all day. Alan Dershowitz defending President Trump said, if the President does something which he believes will get him elected in the public interest, that cannot be the kind of quid pro quo that results in an impeachment. So in other words, if it's being done for the, quote, unquote, public interest. And every single politician thinks everything they do --

BLITZER: Whatever they do is in the public interest.

TAPPER: -- is in the public interest. And like of course, their re- election is in the public interest because they are great and their rivals are horrible, then that cannot be considered impeachable.

And it's a remarkable statement, and it set off a bunch of questions including what if Obama had done such a thing? And then there was a back and forth. But it's really a remarkable assertion, and I'm sure that a lot of attorneys including conservative constitutional attorneys would take issue with it.

The idea that as long as a President does something and he believes that that action is in the public interest and that includes his own re-election, then it's completely kosher.

BLITZER: And Adam Schiff totally rejected that in his rebuttal. GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Well, he did reject it

and, you know, he went on and on, you know, he went on with the Obama- Medvedev story, but he said, you know, you have to look at motive. You can't just give somebody a carte blanche.

And I think to get back to the Dershowitz statement, which to me is outrageous and remarkable. Maybe he was trying to appeal to narcissism of politicians. I have absolutely no idea what he was trying to do, but he effectively said if you believe you should be president, then you can do anything you want to make yourself president because you will believe that is in the national interests.

So my question would be can you arrest an opponent of yours? You know, you can ask questions like that, ad infinitum. It is a ridiculous argument. I'm not a lawyer so, OK, stipulate that. But to me just as an American citizen, it seems ridiculous to say that just because you think you should be elected to an office you can do anything you want to get there?

TAPPER: Because that's in the public interest.

BORGER: Because you believe you're the chosen one or whatever it is, it's just absurd.

JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: As long as you think you're right, you can do no wrong. That's a hard one to figure out. It's a novel argument, and again, Schiff when he was countering it even quoted Jonathan Turley who was the Republican called witness at the House Judiciary Committee who has a very different view of that.

But all of this, even that out-there argument, let's call it that from Dershowitz, they're relitigating the facts of the case but they're really litigating witnesses. And Dershowitz fits into that.

John Bolton in his manuscript says the President told him firsthand of the quid pro quo. Democrats want to call John Bolton as a witness. Alan Dershowitz is saying no need. Because even if there's a quid pro quo, if the President thought he was acting in the national interest, it doesn't matter. It's not impeachable.

I'm not saying I accept that argument. But this is the predicate -- first you don't want witnesses because the House didn't reach the bar. Mr. Philbin has trying methodically.

Their case is horrible. They didn't do due diligence. They rushed, don't do then a favor. That's one reason against witnesses. They don't deserve it.

Dershowitz's case is it wouldn't even matter. Because if John Bolton comes and says, President looked me right in the eye, said it's quid pro quo. Don't give them the money. I want the Biden investigation, Dershowitz is making the argument -- I don't know how many Senators would accept it -- that doesn't matter. Not impeachable.

BORGER: Quid pro quo is allowed. Totally allowed. TAPPER: And this inevitably like I guess where we're going to land,

which is now you have Senators making the argument and some suggestion among some of the President's defense team, though not all, that maybe he did do a quid pro quo and maybe it was an exchange for investigations into the Bidens, but so what.

NIA-MALIKA HENDERSON, CNN SENIOR POLITICAL REPORTER: Yes.

TAPPER: And that's where they have landed.

HENDERSON: That's where they have landed. That in some ways is where we thought they would land. I think that was most amplified by Dershowitz a couple of days ago and then of course today when he essentially said, listen, whatever the President does is essentially OK.

You've heard Nancy Pelosi and Adam Schiff in the past argue that this is a President who believes that the Constitution gives him absolute power and absolute authority to do anything. You feel like Dershowitz, too, is really arguing for this expansive idea of executive powers and what a President can do.

In terms of the witnesses that came up a lot. You heard the President's lawyers essentially say, listen, this would take way too long. There's so much business that has to get done in the Senate, I don't know what -- I don't know what that would be, and then you heard the Democrats argue that, listen, it didn't take that long to have depositions in the Clinton impeachment. I think it took one day for three witnesses to be deposed.

BLITZER: One day each.

HENDERSON: Yes, one day each for them to be deposed and so they could -- they have ample time to do that. But yes, they're obviously trying to advance each side of the arguments.

[15:45:00]

Interesting that the first question came from the group that everybody's looking at, Collins, Murkowski and Mitt Romney asking about whether or not there are mixed motives, right. If the President was acting in his own personal interests but also acting in the national interests, what does that mean for impeachment, and them arguing --

BLITZER: I want to get Laura Coates, our legal analyst involved in this. Talk about the law and this -- what some would consider this novel interpretation from the former Harvard law professor Alan Dershowitz.

LAURA COATES, CNN LEGAL ANALYST: Well, novel unless you remember, of course, the Frost-Nixon interview where the statement was, if the President does it, it's not illegal.

And it was very reminiscent of that particular time when essentially the thought was, listen, as long as the President believes what's good for the goose is good for the gander, what's good for me, it's OK, I am the last line of defense, et cetera. It recycled that argument.

But another fascinating part of this is the idea of two things, the mixed motives reminded me of the campaign finance discussion that they'd had before with President Trump. And of course with Michael Cohen and Stormy Daniels and the idea of talking about what was the motivation for using the money, your payoffs, et cetera. You're seeing a theme of recycled things.

And the third part that I found so interesting was the idea of look how their strategy has shifted. Remember, it went from the idea of saying you don't have enough information to say there was any kind of abuse of power. Then it became even if it's an abuse of power, so what, or even if you have evidence, it's not an impeachable offense.

And now you have the recycled final point that I think Trump has made time and time again, and now it's going through his counsel in the question/answer session, which is if they're after me, they're not after me, they're really after you. I'm just standing in the way.

And this time it turned onto the Senators to give that cautionary warning of, you all out there also believe that what you do is in the interests of your constituents and you also are relying on pollsters and relying on your political advisers.

We'll look to figure out what the impact will be of your policy decisions on the future election or your reelection. Do you really want in addition to having a precedent about the President and a lower bar from impeachment, it could be you next.

Which is exactly how Pat Cipollone opened his opening statement in the beginning. It could be any one of you. And this shift is an attempt to be very persuasive and will light a fire under people and threaten them in a way that I think people are missing, this kind of nuanced sort of jury level intimidation or threat, not in terms of a criminal act at all, but the idea of using it to say this could be you next.

TAPPER: And also, we should just point out also because I've heard Republicans make the argument that the Hunter Biden deal looks shady and therefore it was worth asking about. And I'm certainly not going to defend Hunter Biden's deal with Burisma and I doubt anybody on this panel would. And in fact, Democratic politicians have distanced themselves from that. But the idea that because something looks fishy, swampy, that it stinks, that that is enough for a President to do this. There are lots of things out there that look fishy.

I mean, I don't know what happened with the Kushners having the deal with those visas in China, but that doesn't look good. I don't know what's going on in Turkey with Trump Tower and the Trump properties there or Trump properties in Kazakhstan that may or may not be involved with the Iranian Revolutionary Guard.

There are all sorts of questions, all sorts of stories that have been written about these things. If this country is about to say to President Trump and the next president and the one after that, it's OK, you can use the power and since you think it is in the national interests, the public interest of the United States for you to get reelected, you can do this.

We are off on down a very, very slippery slope.

KING: A horrible slope. Just one quick point, but there's also a way to do that, if you really believe that, if you really believe that in any case, but especially in a highly sensitive case of Hunter Biden, the son of a former Vice President of the United States. You can ask your Attorney General to quietly reach out agency to agency. And you do these things in private, is there any information, is there anything there? And then as in so many investigations, the lawyers know this better than me, we never hear about. They do some preliminary work and they shut them down.

If you thought, if you really believed Hunter Biden had violated some American law or had violated some European, you can ask the Justice Department to quietly reach out and do some private poking around. Some people would say even that's not appropriate.

BORGER: I would say that.

KING: But you don't have to do it publicly or with the President, yes.

HENDERSON: To ask a foreign government.

TAPPER: You don't lean on a foreign government that relies on military aid, yes.

KING: And send your lawyer on Fox News every other night to raise it.

TAPPER: And by the way, should we point out, Hunter Biden took this job, again, swampy in 2014, Republicans controlled the House and the Senate 2014, '15, '16, '17, '18. They could have held hearings. They could have looked into it. We all would have been like, OK, whatever, they're looking into it. They did not.

[15:50:00]

Let's go to Dana Bash and Manu Raju on Capitol Hill. And guys, what is the impact of this testimony so far, the question and answer period in the Senate impeachment trial as far as you can tell?

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: Well, I'm going to actually put that question to you, Manu.

MANU RAJU, CNN SENIOR CONGRESSIONAL CORRESPONDENT: Yes.

BASH: Because you know for now this is the ninth day. And for the first eight days it was annoying not see what the Senators are going because of the way that rules are set up. The cameras are only trained for the most part on the managers, the counsel and of course, the Chief Justice.

Today, it's really harmful I think to what the viewers at home can and cannot see, because you really don't see the Senators when they are asking their questions or what the reaction is to the answers that they are getting or not getting.

But luckily, we have you, you were in there. You were eyes and ears, what were your takeaway?

RAJU: You know I think the Senators were much more engaged actually in this question and answer period than they were during opening arguments on both sides.

We'll see as time goes on, but the beginning of this people were paying attention very closely, people taking notes. And one interesting thing that I noticed was that one of the key votes that we're all looking at here, Lamar Alexander, the Tennessee Republican, someone who has not said one way or the other how's he leaning about coming down on witnesses. And he could be the decisive vote.

He tends to take sporadic notes throughout these proceedings. But when there was discussion about the witnesses and particularly when the White House Deputy Counsel, Patrick Philbin, came out strong against having the witnesses warning that it could have a dramatic, devastating precedent that would set for the Senate. Saying the Senate should not go down this road, it paralyzes the Senate, Lamar Alexander was taking extensive notes at that time. Now he continued to take notes while Adam Schiff also responded, so we'll see which way he's actually leaning, but perhaps maybe even writing a statement about he ultimately could come down.

But that was one of the things, he was particularly engaged. Also, some of the Senators are clearly discussing the questions that they're going to be asking as this is unfolding.

BASH: So they're not quiet as they were during the presentation.

RAJU: Well, they're quiet when they're sitting on the floor, but they will go into the cloak room to discuss, and the cloak room is just off of the Senate floor. And did Lindsey Graham walk back into the back of the chamber, he actually met Ted Cruz in the cloak room. I saw them talking in the cloak room. Soon after, a few minutes later, they came out and had a joint question to the House managers asking a question that invoked Mitt Romney in a hypothetical situation involving Mitt Romney.

So they were cordoning there and then when Mitt Romney's name was evoked, he was standing in the back of the chamber watching along, grinning but mostly expressionless as that was happening. And then at the end, Lindsey Graham made some quips, as Republican colleagues around him, some folks were laughing and that. So there is some -- been some back and forth that I've seen.

BASH: It's very meta for them to talk about Romney, because he was President Obama's opponent in the election in 2012 and now, he is judge and juror in there.

The other thing they thought that was really interesting was you're really maybe getting a sense of where some of those swing voters are by the questions they're asking. Murkowski in particular. RAJU: Yes, and you heard two her questions were raising her own

questions about the two articles of impeachment and allowing the defense team to raise concerns about those two -- the merits of the two articles of impeachment.

And her first question was of course was with Susan Collins and Lisa Murkowski. So we'll see if they use those arguments to make their case potentially against convicting the President.

BASH: Yes, and those I think were kind of telling as to where she is ultimately on the articles of impeachment, but maybe not tipping her hand on the

short-term question which is witnesses. Thanks, Manu. Jake and Wolf, back to you.

TAPPER: All right. Thanks, Dana and Manu. Stay with us, we're waiting for the Senate to come back into session/ More live CNN special coverage of the Senate impeachment trial of President Donald J. Trump after this quick break. Stay with us.

[15:55:00]

(COMMERCIAL BREAK)

TAPPER: Welcome back, I'm Jake Tapper in Washington, D.C., along with Wolf Blitzer, and any moment we expect the Senate impeachment trial of President Donald J. Trump to pick back up.

The Democratic impeachment managers and the President's defense team are each answering questions submitted by U.S. Senators. And I want to start if I can by bringing in one of the newer panelists, Carrie Cordero, to weigh on something that Alan Dershowitz suggested in an argument not long ago that was rather stunning I think to a lot of us. Which is the notion that if the President does something which he believes will get him elected and in the public interest, that cannot be the kind of the quid pro quo that results in impeachment.

In other words, as long as the President thinks doing this will get me elected or reelected and that's in the public interest, because I will be a better President than whomever, that is not impeachable.

Is that based on any sort of like interpretation of the Constitution, like what is that from and what do you think about it?

LAURA COATES, CNN LEGAL ANALYST: I think we ought to call it what it is. Which is from my perspective, it's a made-up argument. I'm not aware of anything that it has a basis in in terms of constitutional scholarship on impeachment.

It basically means that a President can do anything, and they can make a subjective determination that they think their reelection is in the national interests. It invites and opens the door to anything that is in the realm of foreign influence.

So if a President thinks that they can take foreign assistance, that they could take foreign money, that could do anything in the realm of foreign influence to influence the election, just because they think that it's in the public interest to get reelected, his argument opens that door wide open.

From a national security perspective it's nonsensical. From a constitutional argument that that would make something not impeachable, it's nonsensical.

TAPPER: All right. Not a lot of ambivalence in your response.

BLITZER: Mike Rogers is here, too, what did you make of the argument?

MIKE ROGERS, CNN NATIONAL SECURITY COMMENTATOR: It didn't carry a lot of weight with me.