Holiday Stalemate Grips Senate Impeachment Trial; DOJ Argues Courts Should Stay Out of Don McGahn Testimony Battle; GOP Blasts Pelosi for Withholding Impeachment Articles.
RYAN NOBLES, CNN ANCHOR: -- have the week off. And right now the Senate's top Democrat once again demanding more witness testimony when the chamber takes up impeachment. The latest order from Senate minority leader Chuck Schumer comes as redacted government e-mails show the effort to freeze security funding to Ukraine began just 90 minutes after Trump's July 25th phone call with the Ukrainian president. Now Schumer says we need to hear from the White House budget official Michael Duffey.</s>SEN. CHUCK SCHUMER (D-NY): If there was ever an argument that we need Mr. Duffey to come testify this is that information. This e-mail is explosive.</s>NOBLES: Meanwhile, we are learning overnight the Justice Department has told a federal appeals court to stay out of the fight over the testimony of former White House counsel Don McGahn, seeming to contradict the GOP position the Democrats should have let this play out in the courts. Let's begin this morning with CNN congressional reporter Lauren Fox. She's on Capitol Hill. Lauren, what are lawmakers saying following the release of these redacted e-mails?</s>LAUREN FOX, CNN POLITICS CONGRESSIONAL CORRESPONDENT: Well, you heard there, Ryan, from Chuck Schumer. He's basically arguing that these e- mails are explosive and they really provide more evidence for why the Democrats need to hear from witnesses as part of that Senate impeachment trial. But we heard from Majority Leader McConnell just a few minutes ago on FOX News and what he said essentially was that they are not prepared to have a debate about witnesses in the very early stages of this trial. Instead, he's arguing Nancy Pelosi just needs to send those articles of impeachment over, then they will have a discussion about witnesses after they've heard a presentation from the House managers who are going to make their Democratic case, then they're going to hear a presentation from the White House's side who is going to make their case. Then they will make a decision about where to go from there. Whether or not it's a vote on the articles of impeachment, whether there's going to be 51 senators ready to vote or whether they move on to witnesses. So McConnell's arguing right now he and Schumer are at an impasse, but not a lot is going to change. Here's what McConnell said.</s>SEN. MITCH MCCONNELL (R-KY): Look, we're at an impasse. We can't do anything until the speaker sends the papers over. So, everybody, enjoy the holidays.</s>FOX: And Nancy Pelosi just a few minutes taking -- a few minutes ago, Ryan, taking to Twitter and arguing that she is not prepared to send those articles over until she sees exactly how a Senate trial is going to be taken apart -- Ryan.</s>NOBLES: All right. Lauren Fox live on Capitol Hill. Lauren, thank you for that report. And new this morning, the Justice Department is arguing that our federal appeals court should not decide if former White House counsel Don McGahn could testify before House lawmakers. The House Judiciary Committee said it needed McGahn's testimony as part of its impeachment inquiry related to President Trump and obstruction of justice. But DOJ attorneys argue that since the impeachment vote last week, McGahn's testimony is no longer necessary. A three-judge panel in Washington is set to hear the case on January 3rd. All right. Let's discuss the legal ramifications of this with former federal prosecutor Gene Rossi. Gene, thank you for being here this morning. Now this came in --</s>GENE ROSSI, FORMER FEDERAL PROSECUTOR: Thank you for having me.</s>NOBLES: This came in a late-night filing last night. Let me read to you what the White House said. It said, quote, "If this court now were to resolve the merits, the questions in this case, it would appear to be weighing in on a contested issue in any impeachment trial that would be part -- that would be a questionable proprietary whether or not such a judicial resolution preceded or post-dated any impeachment trial." Do they have a point?</s>ROSSI: They have a small, tiny sliver of a point. When I worked at the Department of Justice for 30 years -- by the way, Happy Holidays. When I worked at the department for 30 years or so, we never told the court, hey, don't make a decision that we have asked for. The Department of Justice, after Judge Brown Jackson's ruling on November 25th, basically wanted an expedited appeal process with the D.C. U.S. Court of Appeals. They're now saying that we don't want you to rule, so as you said in your prologue here on your show, there's a little inconsistency in the Department of Justice's position. So they have a tiny point, but it's overridden by the practice and procedures that they followed for the last 150 years.</s>NOBLES: And also, this, of course, comes against the backdrop of how Republicans have been treating the court's involvement in all of this. They've repeatedly slammed Democrats for attempting to get the court's involved in this impeachment process. Aren't they contradicting themselves a bit with this particular filing?</s>ROSSI: They are.</s>ROSSI: First off, the Justice Department headed by Attorney General Bill Barr has engaged in a plethora of contradictions over the last year and a half, so this is just another, you know, feather in the cap if you will. It doesn't surprise me. What really -- at the end of the day, the appeals court is not going to make a ruling on the McGahn issue until probably February, March or April because it's going to be a three- judge panel, they all would want to write some, you know, fulsome opinion, Warren piece, for history books. So you're not going to get a ruling in January. I would be shocked if there was a ruling.</s>NOBLES: So -- I mean, is there really anything Democrats can do at this point? I mean, they've essentially already handed this over to the Senate at this point. It seems unlikely that McGahn is really going to be a part of this process. Is there anything Democrats can really do?</s>ROSSI: They can't do a thing. The McGahn issue is sitting on a back burner in the court of appeals. What the Democrats and members of the Senate should do is focus like a laser beam, present their case, and let the chips fall where they may. If President Trump is removed, that's the Constitution. If he's acquitted, so be it. Let's move on.</s>NOBLES: All right. Gene Rossi, appreciate your perspective, former federal prosecutor weighing in on this information, playing out in the courts related to impeachment. Gene, thank you. Let's keep the conversation going now with Karoun Demerjian, a congressional reporter at "The Washington Post" and Francesca Chambers, White House correspondent at McClatchy D.C. Francesca, let's start with you. I mean, these new e-mails do show efforts to freeze security funding to Ukraine. It actually started roughly 90 minutes after President Trump spoke on the phone to Ukrainian President Zelensky on July 25th. I mean, if you're the Democrats what can you really do with this at this point?</s>FRANCESCA CHAMBERS, WHITE HOUSE CORRESPONDENT, MCCLATCHY D.C.: Well, without testimony from those officials and Mick Mulvaney, there isn't too much that they can do with this at this point especially over the holidays by the way. And there's been conflicting information about whether or not there would be live witnesses at this point in a Senate trial. We heard Mitch McConnell this morning saying that they still haven't made a decision on the live witnesses, but just yesterday Lindsey Graham said there wouldn't be live witnesses, we shouldn't expect to hear from these Trump administration officials because the president has given them executive privilege. So there seems to be a disconnect about what would happen in a Senate trial, regardless of what Nancy Pelosi does.</s>NOBLES: All right. Let's take a listen to what vice president's chief of staff said about House Speaker Nancy Pelosi's decision to hold off on sending articles of impeachment to the Senate. Take a listen.</s>MARC SHORT, CHIEF OF STAFF TO VICE PRESIDENT MIKE PENCE: Quite confident that this position is untenable and she's going to move it along and that Chuck Schumer and Mitch McConnell reach a deal on how it's going to proceed in the Senate.</s>CHRIS WALLACE, FOX NEWS HOST: So you think that she'll eventually give in.</s>SHORT: She will yield. There's no way she can hold this position.</s>NOBLES: Karoun, you spent a lot of time around Nancy Pelosi. Is Marc Short right? How long can she old on to this position?</s>KAROUN DEMERJIAN, CNN POLITICAL ANALYST: Well, Nancy Pelosi has held on to positions based on her convictions for longer than others have around her and she and McConnell are very alike in that way, that they're both very strong-willed, they've both very good at counting their votes and deciding what to do based on that. But it does seem like it's a little bit politically difficult for the Democrats to sit on those articles of impeachment in perpetuity. They went through this entire process, it was a politically -- there were some potential benefits, there were a lot of risks involved, and to not let it go forward into the trial there are too many Republicans that are basically accusing them of being afraid that they don't have a good enough case. So there's some leverage she has especially in this period in which nothing was going to happen anyway because it's the holidays, to push Mitch McConnell, to push the Senate to try to make some of their stances clear about witnesses and as you heard McConnell say on FOX today, he started to speak a little bit more open language about what witnesses may or may not be allowed in. But her leverage starts to potentially fade once they get back to town in January because something has to happen and the more it doesn't, the more there's going to be fingers pointed at her for saying why aren't you letting it? Are you not confident in this case?</s>NOBLES: Yes. It will be an interesting staring contest over the holidays.</s>DEMERJIAN: Yes.</s>NOBLES: Will they really be --</s>DEMERJIAN: And they're both very good at it.</s>NOBLES: Exactly. Exactly. And how engaged will they be. Of course Nancy Pelosi still tweeting about it this morning so it's obviously on the minds of both of them. You know, Francesca, you obviously cover the White House. This of course Nancy Pelosi's tweet from this morning, talking about how she's not even going to hold off on naming impeachment managers until they know exactly how the Senate is going to handle this. And of course, Francesca, from the White House perspective, we know that President Trump is anxious to be acquitted. In fact Marc Short said that this weekend. You know, in the minds of the White House, and in the GOP, is an acquittal a full exoneration? Is that how they're going to sell it to the American people?</s>CHAMBERS: That's absolutely how President Trump plans to sell it to the American people. And there's also this question of the State of the Union now. Nancy Pelosi has invited him to give it on February 4th and whether or not a trial would be finished by that point, and so that's a question that's at play. And what I've been hearing from White House officials overall about Nancy Pelosi and what we expect over the next month is that they are wondering at this point what she will do next and saying that what happened to the lack of urgency. Before she has said that this was urgent, now White House officials are saying well, how urgent can it be if you're now saying that you're going to delay it indefinitely while we go back and forth over the Senate trial procedures and that was another argument that Marc Short had made yesterday. But realistically, again, because of the holidays it's very tough for the White House to do anything or Mitch McConnell or the Senate, until they get back into session this month or next month, sorry.</s>NOBLES: Yes, meanwhile, Karoun, President Trump already in Mar-a- Lago, mixing it up with his allies, on vacation there. Already seen meeting with conservative pundit Rush Limbaugh. We know Rudy Giuliani is down there. I mean, how will this impact all these folks surrounding President Trump, his mentality going into that Senate trial?</s>DEMERJIAN: Well, this is what some people feared, right? Which is that when he's at Mar-a-Lago, the access to him is pretty much more wide open than when he's at the White House and all of his aides and advisers are around to control that. I think Trump has not always been in lockstep with his legal team. His legal team seems to be more in line with Mitch McConnell's thinking in terms of keeping this small and tight and keeping witnesses out of it if they can. The president has taken to Twitter and said give me the whistleblower, give me Hunter Biden, and you can't really get those two. I don't think that there would be 51 Republicans that would agree to just the GOP side witnesses and not others who are in the administration. And so if the president decides that he is going to just kind of play a little bit fast and loose, he could really undercut the position that the GOP is trying to take and that could add to Nancy Pelosi's leverage in this situation because if the president swings the balance or really pushes this past the point where Mitch McConnell can hold everybody else in line, there you go. That's not your 51 senators anymore and then Democrats may be able to get some sort of deal that involves some measure of the witnesses on their preferred roster.</s>NOBLES: To think this is going to be a quiet few weeks while the Senate is out of town I think is a little bit of a fantasy, especially because President Trump still has access to his Twitter account while he's at Mar-a-Lago with all those folks around him. All right, Karoun Demerjian, Francesca Chambers, terrific discussion, thank you both for being here. And still to come, we're just over a month away from the Iowa caucuses. Candidates are canvassing that key state in a final sprint, and we have Democratic hopeful Andrew Yang with us. He joins me next. What's his battleground state strategy? Plus, new CNN reporting about Kim Jong-un's Christmas gift to the United States. What that may turn out to be or not be. That's coming up. 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