TAMARA KEITH, HOST:
Hey there. It is the NPR POLITICS PODCAST. It's 5:22 p.m. on Tuesday, January 28.
I'm Tamara Keith. I cover the White House.
KELSEY SNELL, BYLINE: I'm Kelsey Snell. I cover Congress.
SUSAN DAVIS, BYLINE: And I'm Susan Davis. I also cover Congress.
KEITH: And the president's legal team has now concluded its defense of President Trump in the Senate impeachment trial. They went pretty quick. They only went for about two hours today. What stands out to you guys about the whole of their argument?
DAVIS: Well, I think the brevity, first of all, like you said, Tam. I mean, they really left a lot of time left on the table. They had 16 hours on their third day of testimony. I think they only used up about two, two and a half, give or take. And they made really succinct arguments. This was not a big, grand closing statement like House impeachment manager Adam Schiff tried to use. I think they just tried to hammer home a couple of, you know, big-picture closing points to the Senate.
KEITH: Yeah. I mean, Schiff was like, you know, coach in the locker room at halftime, and they were like, yeah, make it go away.
DAVIS: Cipollone also did something that I thought was kind of clever and kind of funny - was he used a compilation - a video compilation of clips of many Democrats, including Democrats currently in the Senate and several of the impeachment managers, like Jerry Nadler and Zoe Lofgren back in the Clinton impeachment, essentially echoing a lot of the arguments that Republicans have been making today about why they shouldn't impeach President Trump.
SNELL: They used some of that tape earlier in the week, and there was one clip in particular of a very much younger Chuck Schumer that he apparently found very funny because afterwards, he turned to his staff and started laughing.
KEITH: Well, and after this daily show-style super cut, Cipollone came back and said, well, you were right. But, of course, Democrats would argue and have argued that these are vastly different circumstances.
SNELL: Yeah. I mean, I think the main parts of the argument today that stood out is they were trying to drive home the idea that they see the stakes as being all about ripping up the 2016 election. They say that going forward with impeachment would be to nullify an election that already happened. They're saying that the president had within his legal authority and his authority as the president to conduct foreign policy however he saw fit, and they say that even if he didn't - even if he did something outside of the norm of the use of his power - that that is not an impeachable offense because it is not a crime.
DAVIS: I think all of those defenses aren't weighted equally.
DAVIS: I mean, they certainly are from the White House team but how they've been received in the room - and it seems like talking to Republicans, not just in the past three days but in the course of this impeachment process, there's certain lines of the defense from the White House that, I think, have resonated more with Republicans than others. I think some of the weaker arguments that they've put forward is attacking the process, saying that the House didn't do it in a way that was appropriate. You know, the executive branch telling the legislative branch how to run an impeachment isn't a particularly compelling case to make. I also think that the idea that it would be unconstitutional to impeach - again, that's a hard argument to make to say that impeachment is an unconstitutional process when it is outlined in the Constitution as a prerogative of the legislative branch.
But that said, I think what you hear Republicans talking more about is this idea that it was within the presidential authority to do the things he did, that there's nothing that they've outlined - even if it's behavior that not every Senate Republican has said they're OK with - that they don't necessarily think it's actions that merit removal from office for it, sort of the highest punishment you can give a president. And I think, politically - and the reason why Pat Cipollone used this in his final closing arguments - is the political case that this shouldn't be up to you. It should be up to voters in November.
(SOUNDBITE OF ARCHIVED RECORDING)
PAT CIPOLLONE: Why tear up their ballots? Why tear up every ballot across this country? You can't do that. You know you can't do that. So I ask you to defend our Constitution, to defend fundamental fairness, to defend basic due process rights. But most importantly - most importantly - to respect and defend the sacred right of every American to vote and to choose their president.
SNELL: I think it's also important, Sue - and I have talked about this - to remember that it doesn't matter if all the points hit home. They just need one point to work for each senator. So the senators can pick and choose whichever point it is that works for them, just - they need something to hold on to so that they can point to it and say, this is why I am voting to acquit.
KEITH: Well, and the president and his team have a structural advantage here, right?
KEITH: There is a very high bar to remove a President from office, as there should be. That is the way it was designed. And at the moment, you would need 20 Republican senators to cross over and go against the president of the United States. That is a very high bar.
SNELL: I mean, we don't get 20 Republicans crossing over on just about anything at all in the Senate.
DAVIS: And it's why the White House team didn't need to use all of their time to make their case. I mean, they are operating with the confidence of a team that knows at the end of the day, the votes are not there to convict the president. At the end of the day, they're going to win this case. The question now is really just a matter of timing. And frankly, can they do it before the State of the Union address next week? - because I think a lot of Republicans would like to wrap this up to give President Trump an ability to go address the nation, as, what I'm sure he will claim to be, an exonerated president.
KEITH: So the one thing that might, maybe, could possibly cause enough pause is John Bolton, who we talked about yesterday - the president's former national security adviser who has this book that is coming out that parts of have leaked. And it essentially has him saying that President Trump told him that he wanted to continue holding up the funds to Ukraine until Ukraine agreed to these investigations. And for a while there, it seemed like Trump's legal team just wasn't going to address it at all. Then, late last night, Alan Dershowitz, the retired Harvard professor, addressed it - said even if everything that Bolton claims is true or even if everything that the New York Times says Bolton says is true, it still wouldn't be impeachable. And then, this afternoon, the president's lawyer, Jay Sekulow, also got into it.
(SOUNDBITE OF ARCHIVED RECORDING)
JAY SEKULOW: Here's what the president said in response to that New York Times piece. I never told John Bolton that the aid to Ukraine was tied to investigations into Democrats, including the Bidens. In fact, he never complained about this at the time of his very public termination. If John Bolton said this, it was only to sell a book.
DAVIS: You know, this is the only difficult question that we don't know with certainty the outcome yet - this question of, on a motion to open up the evidence record, will they vote to include more evidence? We do know that Senate Majority Leader Mitch McConnell is working very hard behind the scenes to make sure his Republican senators vote no on that question. We know at least three of them - just shy of that four magic number - are open to this idea of opening up that record. But if they don't get that fourth vote, then this can wrap up pretty quickly.
SNELL: Now, it seems like there are some people that are hemming and hawing. But mostly, they're not talking about finding ways to call witnesses. They're coming up with ways to hear from Bolton in some nominal way that satisfies the urge from voters to say, you didn't do enough, without actually ever having to do the thing that they're being asked to do. I mean, it's - they're trying to find some way out.
DAVIS: And maybe satisfy Republicans who do want to hear from witnesses, but if they can give them some in between, then maybe they can keep the party in line. Like Jim Lankford, who's a Republican senator from Oklahoma, is saying that the Senate is asking for the publisher to just turn over - willfully turn over this manuscript so senators can review it. Although, he told me that if that doesn't happen in the next day or two, it kind of becomes a moot point. And you have other Republicans - Ron Johnson of Wisconsin, Deb Fischer of Nebraska - making the point that, hey, John Bolton doesn't need a subpoena to talk. He could put out a statement. He could give an interview - sort of signaling that, yeah, he could say what he needs to say without needing us to have this vote on witnesses.
KEITH: Of course, that wouldn't be any more admissible than an article in The New York Times.
DAVIS: No. But it would, I think, politically solve the problem that some Republicans are feeling the pressure about this witness vote because, again, public polling has shown us consistently that while, yes, the country's still divided on this question of impeachment, there is overwhelming support in the country to this idea of hearing more witness testimony. And there is a political risk - looking like you're doing something that is going against the will of, you know, vast majorities of the country.
KEITH: All right. We are going to take a quick break. And when we come back, the thing that we know is coming next - questions and answers.
All right. We are back. And, guys, I have maybe 20 questions about the questions.
DAVIS: Lay them on me.
SNELL: Let's do it.
KEITH: All right, so here's what we know. The Senate will go into session at 1 o'clock tomorrow afternoon. And at that time, the senators' questions will be asked to the legal teams, both to the House managers and to the president's legal team. But they will not do this audibly. Is that correct? How does this work?
DAVIS: So Senate Majority Leader Mitch McConnell outlined the process before they adjourned today, and it's going to follow the precedent of the Clinton impeachment rules. Democrats have agreed to these rules of the road. And the questions will start. The majority will go first, and then they'll alternate between the majority and minority. Senators have to write their questions literally on a piece of paper, where they have to identify themselves. They have to say whether the question is to the prosecution or the defense, and they have to write down their question. And the questions will be presented to Chief Justice John Roberts, who will read the question aloud, including identifying which senator is asking the question. It's not anonymous. And the prosecution or defense will have up to five minutes - although that's a soft five minutes in Senate time - to answer that question, and then they move on. And they have 16 hours over two days to exhaust all of their questions.
KEITH: OK. So, like, let's say that there is a question from a Republican senator for the president's legal team. Does Adam Schiff and the Democrats - do they then get to weigh in on that too? - or no, it's just one side, one side - whoever it's addressed who is the only one who can answer?
SNELL: The people who have the question addressed to them are the ones who respond to it. That's part of the reason that you heard Adam Schiff in press conferences throughout this week and last week saying things like, we don't get a chance for our rebuttal. We don't get a chance to respond to things.
KEITH: And is there, like, a fancy box that the papers go into? How do the questions...
DAVIS: They'll be handed to clerks, who will bring them up to the desk who will present them to the chief justice.
KEITH: So, like, senators will be sitting there. And somebody will say something, and they'll be like, oh, my gosh; I have another question. And they'll write it down and send it up.
DAVIS: Well, yes and no. I mean, senators aren't...
DAVIS: Senators aren't limited in what - I mean, they're limited in what they can ask in that it has to be relevant to the question at hand in the impeachment trial. But there is a lot of strategy going on behind the scenes. Republicans met this afternoon to sort of start talking through the question and answer period. I talked to one senator, Mike Rounds, who said, you know, they're strategizing the topics they want to hit on. Multiple senators can ask the same question, so it's not just a one for one. But they can also do that to, like, not waste time, so ten people are asking...
SNELL: Yeah, they can all team up on a question.
DAVIS: Yeah, so they're not wasting everybody's time. I think that there's a political strategy here to the point that you want to make sure you get back on the record or clarify. And, yeah, it is for the senators whose votes are in the middle - the Susan Collinses, the Mitt Romneys. It is a chance for them to also ask the questions that maybe aren't the ones that Mitch McConnell has but are the ones that are going to satisfy the question of whether or not they want to hear more witnesses and testimony.
SNELL: But let's be clear. There is a lot of choreography here, right? Like, this is not the kind of thing where people are going out and freelancing necessarily. There is an expectation that McConnell knows what kinds of questions Susan Collins wants to ask. And it's to his benefit in the long run to let her ask those kinds of questions.
DAVIS: And the leaders of both parties will have some say in sort of managing what order they want their questions asked, when certain topics come up. I mean, this isn't just a free-for-all. It will be very sort of coordinated and strategic. But, again, it's the Senate. Every senator has their own power to ask their own questions, so there is certainly a potential for some surprise. And I think one thing you're watching is to see, are Republicans mainly asking questions of the White House team to get them to bolster points they need to hear? Or are they using this time to sort of undermine the opposition in the case they've made?
KEITH: All right. That is where we are going to leave it for now. And we will be back tomorrow after the first day of questions. And as we have said throughout this trial, check out Up First in the morning. It will have all of the latest. And then we will be back in the evening.
I'm Tamara Keith. I cover the White House.
SNELL: I'm Kelsey Snell. I cover Congress.
DAVIS: And I'm Susan Davis. I also cover Congress.
KEITH: And thank you for listening to the NPR POLITICS PODCAST.
(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")
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