Senators Question House Managers, Trump Lawyers; Chief Justice Rejects GOP Senator's Question; Senators Discuss What Happens If There's A Tie Vote on Witness Motion.
PAT PHILBIN, DEPUTY COUNSEL TO PRESIDENT DONALD TRUMP: And he's explaining that he understands that it's an issue that has to do with, was an investigation there -- over there, that their prosecutor was handling -- derailed in a way that affected their anti-corruption efforts? And it's something worth looking into. It's the president making clear that we're not saying that's off-limits, it sounds bad to the U.S. as well. But let me get more specifically to the question, is there any situation where it might be legitimate to ask for an investigation overseas? Yes. If there was a conduct by a U.S. person overseas that potentially violated the law of that country but didn't violate the law of this country, but there was a national interest in having some information about that and understanding what went on, then it would be perfectly legitimate to suggest, this is something worth looking into, we have an interest in knowing about this even if it's not something that would mean a criminal investigation here in the United States. And so that could arise in various circumstances where a person had done something overseas, but there was a national interest in understanding what they had done. Thank you.</s>JOHN ROBERTS, CHIEF JUSTICE OF THE UNITED STATES: The Democratic leader is recognized.</s>SEN. CHUCK SCHUMER (D-NY): Mr. Chief Justice, I send a question to the desk for the president's counsel and the House managers.</s>ROBERTS: Thank you. The Democratic leader's question is this: Yesterday, I asked the president's counsel about the president's claim of absolute immunity. Specifically, I asked the president's lawyers to name a single document or witness that the president turned over to the House impeachment inquiry in response to their request or subpoena. Mr. Philbin spoke for five minutes and talked about the various types of immunities and privileges the president could invoke, but did not answer my question. So I ask once again, can you name a single witness or document that the president turned over to the House impeachment inquiry? It is directed to both parties, and president's counsel goes first.</s>PHILBIN: Mr. Chief Justice, Minority Leader Schumer, thank you for that question. I apologize if I was not direct in getting to the nub of the question yesterday. I was intending to explain the rationales that the administration had provided for its actions, and to explain, contrary to the question, that it was not simply absolute defiance and not simply a blanket assertion that we won't do anything, that's the way the House managers have tried to characterize it. But so let me be clear, there were document subpoenas issued prior to the adoption of House Resolution 660. The president explained -- the administration explained in various letters, all of those were invalid. And there were no documents produced in response. There were no documents produced in response because all of those subpoenas were invalid. There was no attempt to reissue those subpoenas or to retroactively attempt to authorize them. There were then subpoenas for witnesses who were senior advisors to the president. The president advised the committees that had issued those, that those senior advisors had absolute immunity and they were not produced for testimony, those three senior advisors were not produced. There were then subpoenas for witnesses to others who the House managers -- the House Democrats insisted they would be required to testify without the benefit of agency counsel, and I've explained that principle. The Office of Legal Counsel advised that those subpoenas attempting to require executive branch officials to testify without the benefit of agency counsel were unconstitutional, and so those witnesses were not produced. Still, there were 17 witnesses who testified, not including the 18th witness, the ICIG, whose testimony is still secret. So there was quite a bit of testimony, and there have been subsequently some documents relevant to this, produced under FOIA. And I just want to -- I raise that because it makes clear that if you follow the law and you follow the rules and you make a document request that's valid, documents get produced. If you don't follow the law, the administration resisted. That's why the documents weren't produced, because the subpoenas were invalid. And we made that very clear. Thank you.</s>ROBERTS: Thank you, Counsel.</s>SEN. ADAM SCHIFF (D-CA): Not a single document was turned over, not a single witness was produced and the witnesses that did come, came in defiance of the orders of the president. Now Counsel has obviously made all these claims that we think are completely spurious. But what they don't answer is, what was the motivation to fight all the subpoenas? They argue this interpretation, which the courts have rejected that have looked at it, that somehow these subpoenas were invalid. But why didn't they produce the documents? Why did they insist on this -- now-discredited by the courts -- legal theory (ph). Because they were covering up the President's misconduct. Now, I want to return briefly to finish the comments I was making earlier about the Senator's question earlier on mixed motives. There's a good reason why mixed motives are no defense otherwise officials who committed misconduct could always claim that even if they did it -- that even if it was corrupt they must be acquitted because they were able to invent some phony motivation and insist it played some minor role in their scheme. Imagine how that principle would apply to a president charged with bribing members of the Electoral College. Multiple framers sighted this specific threat while discussing impeachment at the Constitutional Convention. Could a President defend himself on the ground that he was motivated in part by a noble desire to reward members of the Electoral College for their public service. Could he defend it on the ground that even as he handed over the bribes he wasn't just acting corruptly but he was also seeking to advance the public interest by keeping himself in power. According to the President's lawyers, yes he could. Indeed for all of the reasons we've provided there's no doubt that the President' quid pro quo is solicitation of foreign interference and his use of official acts to compel that inference were a fundamentally corrupt scheme by which I mean the motive and intent was to benefit himself to obtain personal, political gain while ignoring and injuring core, national interest in our Democracy and our security. We have demonstrated we believe that this scheme was entirely corrupt but if you have any question about that, ask John Bolton. If there's any question about whether the motive was mixed or not mixed, ask John Bolton. He has relevant testimony. You can ask also Mick Mulvaney. You can subpoena the documents and answer the earlier questions what the documents say about when the President withheld the aid, whether there was any interagency discussion of reforms in Rada (ph). I mean the President's counsel literally made the argument that the circumstance that changed was a change in the Rada. There is no evidence to support that idea.</s>ROBERTS: Time has expired. The Majority leader is recognized.</s>SEN. MITCH MCCONNELL (R-KY): Mr. Chief Justice, I ask that we stand in recess until 4.</s>ROBERTS: Without objection, so ordered.</s>WOLF BLITZER, CNN HOST: All right, so that's the first break of the day, 20 minutes or so, 25 minutes I suspect before they actually come back. We heard many of the same arguments from both sides today that we've been hearing over these past several days. Both sides trying to reinforce their positions aiming at four key Republican Senators. They will be critical in deciding whether there are 51 Senators who will vote tomorrow to call witnesses like John Bolton, the President's former National Security Adviser or if they fail to get 51, what will the Chief Justice of the United States John Roberts do if it's a 50-50 tie, potentially, potentially could be in his hands, or will the President be acquitted as early as tomorrow?</s>JAKE TAPPER, CNN HOST: That's right, the question about the tie is a very serious one, and very possible if three Republicans join with the 47 Democrats, that's 50-50, and there are three Republicans who have expressed an interest in hearing more, and there is precedent for a Supreme Court Chief Justice presiding over an impeachment. This would be Chief Justice Salmon Chase during the impeachment of President Andrew Johnson. A lot of current court observers do not think that Chief Justice John Roberts is inclined to get involved in a trial the way that Salmon Chase did in the 1868 trial of President Johnson, Andrew Johnson. And by the way, I mean that is part of Salmon Chase's legacy, as he was criticized for the rest of his life for stepping in and breaking that tie. A lot of repeated arguments as you noted, Wolf. Democrats, the House impeachment managers basically saying the President is trying to cheat in the 2020 election. You can't let him get away with this. And the President's attorneys saying the President did nothing wrong, and the process has been unfair. And as you note, the biggest trial, the biggest question right now is whether or not there will be 51 votes tomorrow in the vote for whether or not there will be more witnesses, whether or not they will hear from John Bolton. And you heard House impeachment manager Adam Schiff over and over say if there's any question in your mind as to this question or that question or this question, you can do something about it. You can call John Bolton, the former National Security Adviser for President Trump who has made it very clear he is willing talk, is writing a book that has been submitted for approval by the National Security Council in which he will talk about Ukraine. And, in fact, his lawyers yesterday made public the fact that they had said specifically to the National Security Council in the White House, please at the very least OK the chapter about Ukraine because it is possible that Ambassador Bolton will be asked about that and they noted that that request was made last Friday. And they still as of yesterday at least had not heard from the White House about that approval process. Let me bring in Jeffrey Toobin right now to see if he's heard anything interesting, anything new from either the House impeachment managers or the President's defense attorneys, or the questions from the Senators that might be indicative in some way about ways in which they may or may not be leaning. What do you think, Jeffrey?</s>JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Well, I think -- I heard a very confident defense team. I heard the President's lawyers striving not to say anything that was newsworthy, that changed their perspective to answer generally as much as possible. I mean, there was a remarkable answer by Eric Herschmann who is one of his New York lawyers that talked about how low the unemployment rate was, and what terrific President Donald Trump was. You know, completely divorced from the reason why we're here, but I think that's indicative of they don't want to get into Alan Dershowitz's theories about constitutional law. They don't want to wade into the facts any more than they have to. They've said everything they want to say and I think they feel like they have the votes both to stop witnesses and to get an acquittal. That's the impression I get. I didn't hear any news making discloses on either side. You know, these -- I have to say on both sides, the lawyers are very impressive. I mean they know these facts very well. At this point for the most part they're not reading answers, they're answering off the top of their head. But one reason they know the facts so well is they've been repeated so many times, and I think that's more or less where we are.</s>BLITZER: And as a result we know the arguments very well too because we've heard them over and over and over again. You know, John King, the Q & A session today did start off with a little excitement when Senator Rand Paul of Kentucky submitted a question to the Chief Justice and the Chief Justice spent a few seconds looking at it, and he then announced it was inappropriate. He wasn't going to read that question.</s>JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: And you heard just before that question, the majority leader, fellow Kentuckian Mitch McConnell praise Chief Justice Roberts for his administration of the trial. And said the Senators would stand by him. Rand Paul went first and allowed him so to ask -- he asked his question, name somebody that Rand Paul believes to be the whistleblower, and the Chief Justice has made clear he wants no part of that, will have no part of that, and he's not going to do it. Rand Paul continues to air his grievances. He continues to air them in other ways on social media. I'm not going to help him promote that. He thought it was important to do this in this setting. Even his friend Lindsey Graham said, well, he thinks there are legitimate questions here, this is not the place to do it. So that -- call that a political stunt, Rand Paul would say it's a principled argument. Republicans make a good point. The whistleblower started all this. Why has the whistleblower never been questioned? Shouldn't the House Democrats have found a secure way to do that? It's a legitimate point of debate.</s>TAPPER: Absolutely, yes.</s>KING: As we go through this. Is outing the whistleblower in a public setting the way to make your point? I think we could have a conversation about that. This process is broken. There's no trust between the two parties. It is perfectly legitimate that you know the Democrats' argument is just about everything the whistleblower alleged has been proven through other sources so we don't need to do this. But you're asking the Congress, the Senate now to remove the President of the United States. It's a legitimate point for the President' team and the Republicans to say, shouldn't we go to the very origin of this? That was one piece of fireworks. And the other thing I think Jeffrey's exactly right, the President's lawyers are not saying some of the eye rolling things they said yesterday because they understand, they believe the math is on their side right now, so do no harm, play it safe. The Democrats are trying to stoke the outrage, who paid Rudy Giuliani, you know, to get the Republicans to think, oh, god, this is so distasteful, maybe I do need to vote for witnesses to learn more from John Bolton. You can't make this stuff up, argument from Adam Schiff. Today the Trump Justice Department in court is fighting a Congressional subpoena. The judge said, well, if I don't rule on this, what should they do? The Justice Department said they can impeach. They can impeach. The President's lawyers are standing on the floor saying if you don't impeach a President over a subpoena, you go to court. And so Adam Schiff understandably so, the Republicans would do it if it was in the converse saying, what, again, trying to stoke the outrage of how this administration conducts itself with those four Senators they need for votes. But the Republican leadership, we won't know until they count the votes but they seem confident.</s>TAPPER: Hold that thought Gloria I want to go right now back to Capitol Hill where we find CNN's Dana Bash with Congressional correspondent Phil Mattingly to take the temperature of the 100 Senators. Dana and Phil, where does this seem to be headed after this second day of questions and answers has begun?</s>DANA DASH, CNN CHIEF POLITICAL CORRESPONDENT: Well, one of things that was happening behind the scenes here in the Capitol right before the trial started was a lunch of Senate Republicans, and there was a very specific topic that they discussed. Which is -- which we've talked a lot about on our air. What happens if there's a 50-50 tie on the question of witnesses? And I know you've done some reporting on that.</s>PHIL MATTINGLY, CNN CONGRESSIONAL CORRESPONDENT: Yes, look, it's one of the things that people have been kind of batting around for the last couple of weeks, knowing it's a very real possibility that that could occur. If Susan Collins and Mitt Romney and Lisa Murkowski all vote in favor of witnesses and nobody else does in the Republican conference, it's 50-50. And the reality is in a normal time, the Vice President would break that tie in the United States Senate. He's the President of the Senate. Obviously, the Vice President not involved in this process. So what's the Supreme Court Justice going to do? Now technically he could break the tie. There's nothing in the Constitution that says he can't. But the long-held expectation is he will not and essentially the vote will fail. However, Republicans are trying to figure out here what Chief Justice Roberts could actually do. And I think part of the reason for the discussion today I was told is in an effort to keep it from being 50- 50, right. They know that there are at least two Republicans that are on the fence here. There's Senator Lamar Alexander and Senator Lisa Murkowski. Both have signaled openness to witnesses but haven't made a final decision yet. And this would be a lot easier for them to not have to even get to that point. So having the discussion about the possibilities and the dynamics and the unknowns --</s>BASH: It's another form of lobbying or arm twisting.</s>MATTINGLY: Yes. It was essentially -- was how it was kind of explained to me. And there are a lot of questions.</s>BASH: I mean, I don't know, my sense is that, and tell me if you're wrong, just in talking to Republicans up here, that I don't know, that that is going to be the argument that rules the day, you know.</s>MATTINGLY: No, no.</s>BASH: Be with us because we don't know what will happen on 50/50.</s>MATTINGLY: No, look, there is a litany of arguments that the Majority Leader and the White House have laid out. I think some are extremely effective. Whether it's an elongated trial, or whether it's setting precedence for future impeachments or pressing for future executive privilege, I think the politics here are very important. You've seen Republican 2020ers that have raised some concerns about if this goes further, this is problematic for me. That I think resonates a lot more than maybe people understand. The tie breaking thing I don't think is going to be a clincher for anything.</s>BASH: Right.</s>MATTINGLY: But I do think it's another data point that people should consider.</s>BASH: So while we're talking about these Republicans, let's talk about Lamar Alexander.</s>MATTINGLY: Yes.</s>BASH: Because as you mentioned, the three other Republicans that everybody is watching Lisa Murkowski, Mitt Romney and Susan Collins are - well, Mitt Romney and Susan Collins, certainly the Republican leadership thinks that they're going to vote yes on witnesses.</s>MATTINGLY: Yes.</s>BASH: Murkowski is little bit more iffy. But Lamar Alexander, would be a vote if he were a yes, that would make a 50/50 question moot. Because it would mean 51 would vote yes. What are you hearing about from your Republican sources about where he is? My understanding is that he's keeping his counsel -- very, very close counsel, but his colleagues think that he's going to vote with them and with the President.</s>MATTINGLY: They think he'll be there in the end. And keep in mind, the context here is he's very close to Senate Majority Leader McConnell. McConnell calls him his best friend in the United States Senate. He often serves as the middleman between Democrats and leader McConnell who don't always have the best relationship. But to your point, he's kept his cards very close. Even his staff I don't think has an idea of where he's going to go with this right now. And that' vintage Lamar Alexander. Lamar Alexander keeps his own counsel, he's not a big boisterous guy in the lunches, on the floor or any of that type of stuff. And so I think the real question here, the Republicans have -- they think he's going to be with them. You've talked to Republicans all day. They're very confident right now. They think they're on the right track to be able to block the witness vote. But nobody really knows. And so that's just a little bit of a wild card that's hanging out there.</s>BASH: Phil, thank you so much. Jake and Wolf, back to you.</s>BLITZER: Thank you very much, Dana, and Phil, so what did you think, Gloria?</s>GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Well, I agree with everything that John and Jeff were saying before, and I think what we're -- what we're really seeing is Democrats making the argument to the American public that if they lose that this trial was unfair. And Adam Schiff started out with this and also making the case to the American public that if we lose, you have changed the presidency and the country, and you have to really think about the larger picture here.</s>TAPPER: You're specifically talking about witnesses, not on removal, right?</s>BORGER: Specifically talking about witnesses but also, you know, the case that was made that a President can do anything that Alan Dershowitz made yesterday, the President can do anything that he believes is in his own interests. Because that is equivalent to the national interests, for example. And Schiff said that was a dissent into constitutional madness, and then --</s>BLITZER: You noticed that Dershowitz was off the playing field --</s>BORGER: I was just going to say that, that Dershowitz was off the playing field, and that they were reminding the American public over and over and over again, you can always call John Bolton. If you want the answer to these questions about motive for example, you can always call John Bolton. And doesn't know the news can make you want to kill somebody d on the other side, the President's lawyers I think more and more were making the case that actually, this isn't any kind of a cover up or unfair trial. What you are conducting is an effort to undo an election. So today seemed to me to be more of a day in a way for political arguments rather than legal arguments. We heard the old legal arguments we heard yesterday but it seemed to descend more into the politics of a lot of this. Particularly, as Jeff mentioned, Eric Herschmann, who I though might have been asking for a job in the administration at some point --</s>TAPPER: Very political speech.</s>BORGER: Very political. Saying, you know, why don't you just like Donald Trump. You know, he's building his wall. And maybe if the House members stop opposing him and harassing him, he said, maybe we could get more done. Join us. And where does that come into this debate, this constitutional debate?</s>TAPPER: I think the question had been that the House impeachment managers need -- they are basically making the argument the nation needs to be protected from President Trump. So Herschmann came in to say, protect it from President Trump. Look at all the wonderful things he's doing.</s>BORGER: Endorse him. Endorse him and so one is saying, look, this purely political and others are saying, how dare you. This is constitutional. This is not political. This is about the future of the presidency and checks and balances. What is the role of Congress here in terms of oversight? Subpoenas, and on and on. So it was a very interesting, a little bit of a different kind of debate.</s>NIA-MALIKA HENDERSON, CNN SENIOR POLITICAL REPORTER: I mean I guess in some ways, even though I imagined that Democrats know that they're obviously not going to get a conviction and likely won't get witnesses. You can still see them trying to talk to some of those Senators about these big picture issues, right. Collins, I think had a question at the end where she was asking whether or not there are any circumstances where it's legitimate for a President to ask a foreign leader to investigate a private citizen. The comeback I think it was from Philbin. It was kind of a squishy answer. And he said essentially that's not even what the President was doing, right. He actually wasn't asking them to investigate the Bidens. He was saying a President can do that if they're asking for an investigation into a private citizen that is breaking the laws of that country. I mean it just sounds like a bit of a muddle. And of course. Adam Schiff really trying to I think amplify what Dershowitz was saying. Which is, listen, at this point, given these arguments, this is a President and this is a future President can essentially do anything in -- Susan Collins, and all these Republicans. Are you OK with changing that way?</s>TAPPER: Again, just a reminder, the big number that we're looking for is 51. Are there 51 votes tomorrow when the Senate votes for further witnesses? As of right now, we do not know if Democrats have succeeded in getting that number up to 51. It does not seem as though they are there yet. You should stay with us. We're waiting for the Senate to come back into session. We're going to have more live CNN special coverage of the Senate impeachment trial of President Donald J. Trump after we squeeze in this quick break. Stay with us.