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Ex-White House Chief of Staff Says Without Witnesses, Senate Impeachment Trial Is a Job Half Done; Senator Murkowski to Vote "No" on Witnesses; GOP Likely Has Enough Votes to Block Witnesses; Final Acquittal Vote Could Be Delayed Until Next Week. Aired 3:30-4p ET

Aired January 31, 2020 - 15:30   ET

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

[15:30:00]

KAITLAN COLLINS, CNN WHITE HOUSE CORRESPONDENT: Something he said a few days ago after you say the people who still work here at the White House were criticizing John Bolton saying he was just trying to get book sales.

And today as we were seeing that the White House and the President himself dispute this new reporting in the "New York Times" about John Bolton's account of this meeting. John Kelly is being sure to say that he believes that John Bolton was a copious note taker during his time in the West Wing.

Of course, we know that he was someone who was often seen with a yellow notepad around him, and of course the question is whether or not we're ever going to hear from him before that book actually comes out. Though it seems less and less likely.

John Kelly also made an interesting comment, he said he believed after all of this is over that the President should invite Congressional leadership from both parties over to the White House and have a sit- down with them. Of course, based on the people we've been speaking with, Jake, that is not likely to happen.

JAKE TAPPER, CNN HOST: And Kaitlan, it's not difficult to imagine the President unleashed with an airing of grievances on Tuesday's State of The Union, which is slated for coming up on Tuesday. What are the plans? We don't know what's actually going to happen yet, of course, but what are the plans for the State of The Union?

COLLINS: Well, right now they are still moving forward like that address is happening on Tuesday. We just got briefed by an official who was essentially going over the themes of what the President is going to be saying, but one thing this senior administration official wouldn't tell us is whether or not the President is even going to address impeachment in this speech.

They wouldn't say whether he'll bring it up, how he would bring it up in that context, of course, whether or not he's going to be reaching for this bipartisanship, something you saw in Bill Clinton's speech during his State of The Union while he was being impeached. And so that's still a question as well as if this is actually going to

happen, if the final vote for the President's acquittal has not happened yet by Tuesday. Right now there's a chance it could happen on Wednesday, and the White House is not saying if they will move that vote, though we know behind the scenes they are pushing for a vote to happen on Tuesday.

Because they want the President to be able to come forward and give that speech after he's already been acquitted. But right now we are in a situation where the President could be giving his State of The Union speech and they still have not had that vote yet.

WOLF BLITZER, CNN HOST: We will be watching all of these developments, Kaitlan, thank you very much. You know, it's interesting, Jake, Mitch McConnell, the Senate Majority Leader said they were taking a 15- minute break. It's been about 45 minutes. Usually it's a little longer than they say, but I'm beginning to get suspicious that behind the scenes, who knows, there may be something going on between Mitch McConnell and Chuck Schumer, the Democratic leader. They're trying to work something out, perhaps.

TAPPER: The ability of Congressional leaders to stop time in its tracks or to make 15 minutes actually six hours is always remarkable. But yes, this does beg the question, what is going on that is holding this up?

Are House -- Senate Democrats and Senate Republicans coming to an agreement to bring this to a close so it all ends tonight so that the four Democrats in the Senate can go to Iowa and campaign for three more days before the Iowa caucuses? What exactly is going on? We don't know.

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: It seems like our reporting is saying it's not likely to end tonight and that what's going on is a struggle between Chuck Schumer who says you don't do what we want to do, I can offer amendments, and I can hold this up for an awful long time, right? Parliamentarian, Al, he can offer amendments.

ALAN FRUMIN, SENATE PARLIAMENTARIAN EMERITUS: Once again I don't see anything explicitly barring amendments to this motion.

BORGER: So he can do that. And the leader wants to get this over with.

TAPPER: Although he does want to also let Republicans who are at least conflicted about the fact that they're about to acquit the President speak to the fact that they don't approve of what the President did.

BORGER: Speak, so, but he probably doesn't want to keep it open as long as Chuck Schumer does, and so there's --

BLITZER: Bernie Sanders, Elizabeth Warren won't be happy. They want to get out of here and head back to Iowa BORGER: Iowa for the weekend and then come back.

BLITZER: All right, as we follow developments hear in Washington, we're also watching the Dow right now. It's down over 600 points. Stocks are dropping in fears -- amid fears about the economic impact of the coronavirus. We're going to continue to monitor that as well.

The Senate once again is in a quick break right now, about 45 minutes so far, much longer than we had expected. Our special coverage and analysis will continue.

[15:35:00]

(COMMERCIAL BREAK)

BLITZER: Welcome back to our special coverage. The Senate is supposed to be heading back into trial after what was supposed to be a 15- minute recess. It's been almost an hour. We're in the middle of this heated debate over whether to call additional witnesses, but this break clearly has gone on a lot longer than expected.

Dana Bash is up on Capitol Hill. I think sort of unusual, Dana, what are you hearing? What's going on behind the scenes?

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: What usually happens when there's a break that lasts longer than it's supposed to, which you guys have been alluding to. It means that the players are behind closed doors trying to figure out next steps.

And I can tell you that Manu Raju and Clare Foran, our colleagues, have been inside chamber and neither Mitch McConnell nor Chuck Schumer has been seen in the chamber so far. Which is an indication that perhaps they're talking to each other or they're with their respective leadership or staff trying to figure out if there's a way that they can agree to move forward. Because as we were talking about, you know, the big question now isn't what the votes are going to be. It's when the votes are going to happen and how much time they're going -- here's Mitch McConnell right now.

BLITZER: Mitch McConnell, Yes.

TAPPER: Mitch McConnell, the Senate Majority Leader is walking in it looks, so go ahead, Dana.

[15:40:0]

BASH: So it's no -- exactly. So it's going to start soon, perhaps he's going to make an announcement before they resume the discussion that there perhaps is a deal, but we're going to have to wait and see. Because the question as I was saying is when these votes are going to be -- not whether or what the outcome is likely to be.

TAPPER: A lot of competing agendas right now, Wolf. Because first of all, you have Senator Schumer, the Democratic Minority Leader, he's upset, he doesn't like how things are going.

You have four Democratic Senators who want this to be over so they can get to Iowa. The Iowa caucuses are Monday. They want to campaign a little including Bernie Sanders who is leading in a lot of polls in Iowa. He doesn't want to cede any time to Joe Biden, perhaps his chief rival there, who no longer has employment so he can campaign as much as he wants.

Then you have Republicans some of whom want to end this as soon as possible. The President wants this ended before the State of The Union. Some Republican Senators want to be able to go to the floor of the Senate and explain why they're voting the way they're voting.

Some of them want to chastise the Democrats. Some of them want to chastise President Trump's behavior, which they ultimately are going to vote to acquit. So there's a swirl of different agendas going on here.

BLITZER: Yes. And it's by no means clear. You heard Chuck Schumer just a little while ago during this recess say, there's no deal. He hasn't worked anything out yet. Maybe they have. We'll be anxious to hear -- well, here it 's resumed. Chief Justice has brought it back into session.

JOHN ROBERTS, CHIEF JUSTICE OF THE UNITED STATES: Please be seated. Ready to hear the presentation from Counsel for the President.

PATRICK PHILBIN, DEPUTY COUNSEL TO THE PRESIDENT: Mr. Chief Justice, members of the Senate, the House managers have said throughout their presentation and throughout all of the proceedings here, again and again, that you can't have a trial without witnesses and documents as if it's just that simple.

If you're going to have a trial there has to be new witnesses and documents. But it's not that simple. And that's really something that is a trope (ph) that's being used to disguise the real issues, the real decisions that you'd be making on this decision about witnesses, because there's a lot more at stake there.

And let me unpack that and explain what's really at stake there. The first of this idea that if you come to trial you've always got to go to witnesses, have new witnesses come in and that (ph).

But that's not true, in every legal system and in our legal systems on both civil and criminal sides there's a way to decide, right up front, in some quick way whether there's really a triable (ph) issue, whether you really need to go to all the trouble of calling in new witnesses and having more evidence and (ph) something like that. And there's not here. There's no need for that. Because these Articles of Impeachment on their face are defective, and we've explained that.

Let me start with the second article on the Obstruction Charge. We have explained that that charge is really trying to stay that it's an impeachment offense for the President to defend the separation of powers, that can't be right. But it's also the case that no witnesses are going to say anything that makes any difference to the Second Article of Impeachment.

That all has to do with the volatility (ph) of the grounds the President asserted, the fact that he asserted long standing Constitutional prerogatives of the Executive Branch in specific ways to resist specific deficiencies in the subpoenas that were issued. No fact witness is going to come in and say anything that relates in any way to that. It's not going to make any difference.

And on the First Article of Impeachment, that too is defective on its face. And we've explained, we heard it again today here that the way they have subjective theory of impeachment that will show abusive power by focusing just on the President's subjective motives.

And they said again today here that the way they can show the President did something wrong is that he defied the Foreign Policy of the United States. And we talked, I talked about that before, this theory that he defied the agencies within the Executive Branch. He wasn't following the policy of the Executive Branch. That's not a constitutionally coherent statement.

The theory of abuse of power that they framed in the First Article of Impeachment would do grave damage to the separation of powers under our Constitution. Because it would become so malleable, they can pour into it anything they want to find illicit motives for some perfectly permissible action.

It becomes so malleable it's no different than maladministration. The exact ground that the framers rejected during the Constitutional Convention. The Constitution defines specific offenses, it limits and constrains the Impeachment Power.

Now, there's also the fact that we actually heard from a lot of witnesses. We heard from a lot of witnesses in the proceedings, so far. You've heard a 192 video clips by our count from 13 different witnesses.

[15:45:10]

There were 17 witnesses disposed on closed hearings in the House and 12 of them testified again in open hearings. You've got all of those transcripts, so you can see the witnesses testimony there. The key portions have been played for you on the screens. And you've got over 28,000 pages of documents and transcripts. You've got a lot of evidence already.

But there's another principal that they overlook when they say well (ph) you're going to have a trial. There just has to be witnesses as if the more ordinary thing is you get to trial and then start subpoenaing new witnesses and documents.

That's not true either. And we pointed this out there's in the regular courts the way things work is you've got to do a lot of work preparing a trial called discovery to find out about witnesses and dispose them and find out about documents before you get to trial.

You can't show up the day of trial and say your Honor actually we're not ready, we didn't subpoena John Bolton or witness X or witness Y. And now we want to subpoena that witness, now we want to do discovery and why does that matter here?

Because here to show up not having done the work and to expect that work to be done in the Senate by this body has grave consequences for the institutional interest of this body and it sets a precedence, really it sets an important precedence for two bodies, for the Senate and for the House.

Because what the Senate accepts as an impeachment coming from the House determines not just precedence for the Senate but really precedence for the House in the future as well. If the procedures used in the House to bring this proceeding here to this stage are accepted.

If the Senate says yes we'll start calling new witnesses because you didn't get the job done and whatever process you used to get it here, then that becomes the new normal. And that's important in a couple of ways.

One of is as we pointed out, the totally unprecedented process that was used in the House that violated all notion of due process. There are precedents going back 150 years in the House, ensuring that someone accused in impeachment in the House has due process rights, to be represented bed counsel, to cross-examine witnesses, to be able to present evidence.

They didn't allow the president to do that here. And if this body says that's OK, then that becomes the new normal. And they stand up here, the house managers, and say this body would be unfair if this body doesn't call the witnesses. They talk about fairness. Where was the fairness in that proceeding in the House?

And Manager Schiff says things would be arbitrary if you don't do what they say and call the witnesses they want. Well wasn't it are temporary in the House when way wouldn't allow the president to be represented by counsel, wouldn't allow the president to call witnesses? There was no precedent in a presidential impeachment inquiry to have opening hearings where the president and his counsel were excluded.

It also would set a precedent to allow a package of proceedings from the House to come here that the house managers say, well now we need new witnesses. We haven't done all the work and its witnesses they didn't even try to get.

They didn't subpoena John Bolton, and they didn't go through the process when other witnesses were subpoenaed, when Dr. Kupperman -- Charlie Kupperman went to court, they withdrew the subpoena.

And now to say that, well, fairness demands this body has to do all that work, that sets a new precedent as well and changes -- it would change for all the future -- the relationship between the House and the Senate in impeachment inquiries. It would mean that the senate has to become the investigatory body.

And the principles they assert, they did a process that wasn't fair. They did a process that was arbitrary, that arbitrarily denied the president rights. They did a process that wouldn't allow witnesses.

Then came they here on the first night, remember when we were all here until 2:00? And in very belligerent terms said to the members of this body, you're on trial. It would be treachery if you don't do what the House managers say. That's not right.

[15:50:13]

When it was their errors, when they were arbitrary and they didn't provide fairness, they can't project that onto this bid to try to say that you have to make up for their errors and if you don't, the fault lies here.

Now, they also suggest that it's not going to take a long time, that the only want a few witnesses. But of course if things are opened up to witnesses and it is going to be fair, it's not just one side; it's not just the witnesses that they would want. The president would have to be permitted to have witnesses.

And with all respect, Mr. Chief Justice, the idea that if a subpoena is sent to a senior adviser to the president and the president determines that he will stand by the principle of immunity that's been asserted by virtually every president since Nixon, that will just be resolved by the Senate right here, whether or not that privilege exists by the chief justice sitting as presiding officer.

That doesn't make sense. That's not the way it works. The Senate, even when the chief justice is the presiding officer here, can't unilaterally decide the privilege of the executive branch. That dispute would have to be resolved in another way and could involve litigation and could take a lot of time.

So the idea that this will all be done quickly if everyone just does want the House managers say, is not realistic. It's not the way the process would actually play out in accord with the Constitution. And that has another significant consequence. Again, affecting this institution as a precedent going forward.

Because what it suggests, the new normal that would be created then is, kind of an express pass for precisely the sort of impeachments that the framers most feared. The framers recognized that impeachments could be done for illegitimate reasons. They recognized that there could be partisan impeachments.

And if this is the new normal, this is the very epitome of a partisan impeachment. There was bipartisan opposition to it in the House and it was rushed through with unfair procedures, 78 days total of inquiry.

Think about that. In Nixon, there had been investigating committees and there was a special prosecutor, long before the House Judiciary Committee started its investigation. In Clinton, there was a special counsel, an independent counsel for the better part of a year before the House Judiciary Committee even started hearings. Everything from start to finish in this case, from September 24th to the articles of impeachment that were (ph) considered in the Judiciary Committee, was done in 78 days.

In 78 days, and for 71 of them the president was entirely locked out. So, the new normal would be, slap dash get it done quickly. Unfair procedures in the House, to impeach a president, then bring it to the Senate and then all the real work of investigation and discovery is going to have to take place with the impeachment hanging over the president's head; and that's a particular thing the framers were also concerned about.

I mentioned this the other day. In federalist number 65, Hamilton warned specifically about what he called -- and I'm quoting -- "the injury to the innocent from the procrastinated determination of the charges which might be brought against them." Because he understood that if an impeachment charge from the House wasn't resolved quickly, it was hanging over the president's head, that in itself would be a problem.

And that's why they structured the impeachment process so that the Senate could be able to swiftly determine impeachments that were brought. That's always suggest -- that's why there's a system for having thorough investigation, thorough process done in the House.

[15:55:04]

And Hamilton explained that delay after the impeachment would afford an opportunity for intrigue and corruption and it would also be, as he put it, a detriment to the state from the prolonged inaction of men who firm and faithful execution of their duty might have exposed them to the persecution of an intemperate (ph) or designing majority in the House of Representatives.

And that's what happened here. And if you create a system now that makes the new normal a half baked slapped dash process in the House, just get the impeachment done and get it over to the Senate and then once the President's impeached and you have the Head of the Executive Branch, the leader of the free world having something like hang over his head, then we'll slow everything down. And then we'll start doing the investigation and just drag it out.

That's all part of what makes this even more political, especially in an election year. It's not the process that the Framers had in mind. And it's not something the Senate should condone in this case. The Senate is not here to do the investigatory work that the House didn't do. Where there's been a process that denied all due process, that produced a record that can't be relied upon.

The reaction from this body should be to reject the Articles of Impeachment, not to condone and put it's (inaudible) on the way the proceedings were handled in the House. And not to prolong matters further by trying to redo work that the House failed to do by not seeking evidence and not doing a fair and legitimate process to bring the Articles of Impeachment here.

Thank you.

ROBERTS: Mr. Sekulow.

JAY SEKULOW, ATTORNEY FOR PRESIDENT DONALD TRUMP: Chief Justice, Members of the Senate. Over a seven day period you did hear evidence. You heard evidence from 13 different witnesses, 192 video clips and as my colleague, Deputy White House Counsel said over 28,000 pages of documents.

You heard testimony from Gordon Sondland, he's the United States Ambassador to the European Union. You heard that testimony. He testified in the House proceedings. I did not have an opportunity to cross-exanimate, to cross-examine him. If we get witnesses I have to have that opportunity.

William Taylor, Former Acting United States Ambassador of Ukraine, testified. You heard his testimony. We didn't get the opportunity to cross-examine him, he would be called. Tim Morrison, the Former Senior Director for Europe and Russia of the National Security Council, you saw his testimony, they put it up.

We didn't get an opportunity we did not have an opportunity to cross- examine him. Jennifer Williams, Special Advisory on Europe and Russian for Vice President Mike Pence, you saw her testimony, they put it up. I did not have the opportunity to cross-examine her. If we call witnesses we would have to have that opportunity.

David Holmes, the Political Council with the United States Embassy in Ukraine, you saw testimony from him. We were not able to cross- examine. If he's called or (ph) if we get witnesses we will call the Ambassador and we will cross- examine.

Lieutenant Colonel Alexander Vindman, you saw his testimony, appear before the House. We didn't have the opportunity to cross-examine him. If we call witnesses, we will of course have that right to cross- examine him. Fiona Hill, she is the Former Senior Director for Europe and Russia on National Security Council.

She testified before the House. If we have witnesses we have the opportunity to call her then and cross-examine Fiona Hill. Kurt Volker, Former United States Special Representative for Ukraine Negotiations, they called him, we did not have the opportunity to cross-examine.

If we're calling witnesses, these are witnesses you've heard from we would have the right to call witnesses and cross-examine Mr. Volker. George Kent the Deputy Assistant Secretary of State for the Bureau of European and Eurasian Affairs, you saw his testimony, they called them. If we have witnesses we have the right to call that witness and to cross-examine Deputy Assistant Secretary Kent.

[16:00:02]