Sen. Joe Manchin on question of witnesses at Senate impeachment trial

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Sen. Joe Manchin on question of witnesses at Senate impeachment trial

West Virginia Senator Joe Manchin, Democratic member of the Senate Armed Services Committee, joins Bret Baier on 'Special Report.'

This is a rush transcript from "Special Report," January 29, 2020. This copy may not be in its final form and may be updated.

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GUTFELD: A lot of snake talk tonight. All right, set your DVRs, never miss an episode of THE FIVE. "SPECIAL REPORT" is up next. Hello, Bret.

BRET BAIER, FOX NEWS CHANNEL ANCHOR: Hello, Greg. Good evening, welcome to Washington. I'm Bret Baier. We're expecting a dinner break in the Senate impeachment trial soon. When that happens, we'll have a recap of today's questions and answers. But more of the news as well, let's go back to the Senate floor now. Listen to Alan Dershowitz, responding to a question about high crimes and misdemeanors.

(BEGIN VIDEOTAPE)

ALAN DERSHOWITZ, PROFESSOR EMERITUS, HARVARD LAW SCHOOL: And I keep fighting my views. In 1998, the issue before this Senate was not whether a crime was required. It was whether the crime that Clinton was charged with was a high crime. When this impeachment began, the issue was whether a crime is required. Actually, two years earlier in a book, and then an op-ed, I concluded, not on partisan grounds, on completely academic grounds that you could not impeach for abuse of power and that a technical crime was not required, but criminal-like behavior was required. I stand by that view. The framers rejected maladministration. That was a prime criteria for impeachment under British law. Remember to the British, never impeached prime ministers. They only impeach middle level and low-level people. So, the framers didn't want to adopt the British approach. They rejected it by rejecting maladministration. And what's a metaphor or what's a synonym for maladministration? Abuse of power. And when they rejected maladministration, they rejected abuse of power. Mr. -- Congressman Schiff, asked a rhetorical question, can a president engage in abuse of power with impunity? In my tradition, we answer questions with questions. And so, I would throw the question back, can of president engage in maladministration with impunity? That's a question you might have asked James Madison. Had you been at the Constitutional Convention? And he would say, no, a president can't engage in that with impunity, but it's not an impeachable crime. Maladministration is not impeachable and abuse of power is not impeachable. The issue is not whether a crime is required. The issue is whether abuse of power is a permissible constitutional criteria. And the answer from the history is clearly, unequivocally no. If that had ever been put to the framers, they would have rejected it with the same certainty. They rejected maladministration.

JOHN G. ROBERTS, CHIEF JUSTICE OF THE UNITED STATES: Thank --

REP. JERROLD NADLER (D-NY): -- was to power. The first year to the Constitution Convention said treason or bribery. That was rejected because it wasn't inclusive enough. Somebody put Mason proposed maladministration, found too vague. So, they said, high crimes and misdemeanors. That was a well-understood term in English law, is well-understood term in the -- in the Warren Hastings impeachment going on in England right then. And it meant primarily abuse of power that is the main -- that is the main meaning of high crimes and misdemeanor. Charles Pinckney said, those who behave and this will betray their public trust, they've been round of misbehaves. But the -- I quoted just a story the other day, every impeachment in American history has been for abuse of power in one form or another. The idea that you have to have a crime. Bribery is right there in the Constitution. Treason, bribery, or the (INAUDIBLE). Bribery was not made a statutory crime until 1837. So, couldn't have been impeachment? The fact of the matter is that crimes and impeachment are two different things. Impeachments are not punishments for crimes impeachments are protections of the Republic against the president who would abuse his power, who would aggrandize power, who would -- who would threaten liberty, who would threaten the separation of powers, who would threaten the powers of the Congress, who would try to aggregate power to himself. That is why punishment upon conviction for impeachment only goes through removal from office, can't put them in jail as you could for a crime. You can find him as you could for a crime. There are two different things, an impeachable offense need not be a crime, and a crime need not be an impeachable offense. Two completely different tests understood that way throughout American history, and by all scholars -- all scholars in our history, except from Mr. Dershowitz.

ROBERTS: Thank you, Mr. Manager. The senator from North Carolina.

SEN. RICHARD BURR (R-NC): Mr. Chief Justice. I send the questions at the desk for the counsel of the president.

ROBERTS: Senator Burr asks, we've seen the House managers repeatedly play video clips of acting chief of staff Mick Mulvaney's press conference in which they claim he said that there was a quid pro quo. How do you respond to the House manager's allegation that Mr. Mulvaney supported their claims in his press conference?

UNIDENTIFIED MALE: Mr. Chief Justice, members of Senate, senator, thanks for the question. We respond as Mr. Philbin did earlier today with that, which is Mr. Mulvaney has issued two statements. One, after his press conference, and then one, yes, Monday after the New York Times article concerning Mr. Bolton's alleged manuscript -- alleged statements in his manuscript. So, I think the easiest thing is just to read them. To understand what he said, and to put it into context for everyone in the chamber. This is from -- this is the day of the press conference. Once again, the media has decided to misconstrue my comments to advance the biased and political witch hunt against President Trump. Let me be clear, there was absolutely no quid pro quo between Ukrainian military aid and any investigation into the 2016 election. The President never told me to withhold any money until the Ukrainians did anything related to the server. The only reasons we were holding the money was because of concern about lack of support from other nations and concerns over corruption. Multiple times during the more than 30-minute briefing, where I took over 25 questions, I referred to President Trump's interest in rooting out corruption in Ukraine and ensuring taxpayer dollars are spent responsibly and appropriately. There was never any connection between the funds and the Ukrainians doing anything with the server. This was made explicitly obvious by the fact that the aid money was delivered without any action on the part of the Ukrainians regarding the server. There was never any condition on the flow of the aid related to the matter of the DNC server. Then, on January 27, which was Monday, there was a statement from Bob Driscoll, who is Mr. Mulvaney's attorney, and I'll read it in its full. The latest story from the New York Times coordinated with a book launch has more to do with publicity than the truth. John Bolton never informed Mick Mulvaney of any concerns surrounding Bolton's purported August conversation with the president. Nor did Mr. Mulvaney ever have a conversation with the president or anyone else, indicating that Ukrainian military aid was withheld in exchange for Ukrainian investigation of Burisma, the Bidens or the 2016 election. Furthermore, Mr. Mulvaney has no recollection of any conversation with Mr. Giuliani, resembling that reportedly described in Mr. Bolton's manuscript, as it was Mr. Mulvaney's practice to excuse himself from conversations between the president and his personal counsel to preserve any attorney- client privilege. So, I wanted to read those statements in full so that everyone had the full context. Even after Mr. Philbin referenced the statement after the press conference, the House managers again came back and said, Mr. Mulvaney indicated or admitted there was a quid pro quo. That's not true. If Mr. Mulvaney misspoke or if the words were garbled, he corrected it that day and has been very clear. Thank you. Thank you, Mr. Chief Justice.

UNIDENTIFIED MALE: Mr. Chief Justice.

ROBERTS: The Senator from Maryland.

UNIDENTIFIED MALE: Mr. Chief Justice, I send the question to the desk for the president's council and the House managers.

ROBERTS: The question to both parties and House managers will go first. What did National Security Advisor John Bolton mean when he referenced "whatever drug deal Sondland and Mulvaney are cooking up on this"? And did he ever raised that issue in any meeting with President Trump?

REP. ADAM SCHIFF (D-CA): Mr. Justice, senators, when John Bolton -- and this is according to Dr. Hill's testimony brought up the drug deal, it was in the context of a July 10th meeting at the White House. There were two meetings that day. There was a meeting that Ambassador Bolton was present for, and then there was a follow on meeting after Ambassador Bolton abruptly ended the first meeting. In the first meeting, Ukraine is naturally wanted to raise the topic of getting the White House meeting that President Zelensky so desperately wanted. And after raising the issue at some point, Ambassador Sondland said, no, no, we've got a deal. They'll get the meeting once they announced the investigations, and this is the point where Ambassador Bolton, stiffened. Now, you can look up Dr. Hill's exact words. I'm paraphrasing here. But this is the point where Ambassador Bolton stiffens and he ends the meeting. He'll then goes follow Sondland and the delegation into another part of the White House where the meeting continues between the American delegation and the Ukrainian delegation. And there it's even more explicit because, in that second meeting, Sondland says, brings up the Bidens specifically. He'll then goes to talk to Bolton and informs him what's taken place in the following meeting. And Bolton's response is, go talk to the lawyers and let them know I don't want to be part of this drug deal that Sondland and Mulvaney have got cooking up. So, at that point, that specific conversation is a reference to the quid pro quo over the White House meeting. Now, we know of course, from other documents and testimony about the quid pro quo, about the White House meeting. And all the efforts by Giuliani to make sure that the specific investigations are mentioned in order to make this happen. But don't take my word for it. We can bring in John Bolton, asked him exactly what he was referring to when he described the drug deal. Now, did Bolton describe and discuss this drug deal with the president? Well, it certainly appears from what we know about this manuscript that they did talk about the freeze on aid. And whether John Bolton understood and at what point he understood that the drug deal was even bigger and more pernicious than he thought that involved not just the meeting but involved the military aid. There's one way to find out. And I want to add this in terms of Mr. Mulvaney. Maybe I'll add it later.

UNIDENTIFIED MALE: Mr. Chief Justice.

ROBERTS: As 2-1/2 minutes.

PATRICK PHILBIN, DEPUTY ASSISTANT TO THE PRESIDENT IN THE OFFICE OF WHITE HOUSE COUNSEL: Thank you, Mr. Chief Justice. Thank you, senator, for the question. The question asks about what Ambassador Bolton meant in a comment that is reported as hearsay by someone else saying what he supposedly said. What we know is that there are conflicting accounts of the July 10th meeting at the White House. Dr. Hill, says that she heard Ambassador Sondland say one thing. He denies that he said that. Dr. Hill, says she went and talked to Ambassador Bolton, and Bolton said something to her about what was said in the meeting where he wasn't there. But he was saying something about it, calling it a drug deal. And what he meant by that, I'm not going to speculate about. It's a hearsay report of something he said about a meeting that he wasn't in, characterizing it some way. And I'm not going to speculate about what he meant by that.

ROBERTS: Thank you. The Senator from North Dakota.

UNIDENTIFIED MALE: Thank you, Mr. Chief Justice. I have a question for myself also for Senator Portman and Senator Boozman. And for the president's council, and I'm sending it to the desk.

ROBERTS: The question from the senators is as follows. In September of 2019, the security assistance aid was released to Ukraine. Yet, the House managers continue to argue that President Trump condition the aid on an investigation of the Bidens did the Ukrainian president or his government ultimately meet any of the alleged requirements in order to receive the aid?

UNIDENTIFIED MALE: Mr. Chief Justice. Thanks, senator for the question. And be very short answer is no. But I'll explain. And I think that's clear. I think we demonstrated in our presentations on Friday and Monday that the aid was released, the aid flowed. There was a meeting at the U.N. General Assembly. There was a meeting previously scheduled in Warsaw, precisely as President Zelensky had suggested, and there was never any announcement of any investigations undertaken regarding the Bidens, Burisma, the 2016 election. No statements made, no investigations announced began by the Ukrainian government. Thank you.

ROBERTS: Thank you, council.

UNIDENTIFIED MALE: Mr. Chief Justice.

ROBERTS: The Senator from Virginia.

UNIDENTIFIED MALE: Mr. Chief Justice, I send a question to the desk for the House managers.

ROBERTS: The question is, do you know about additional information related to Russia disseminating President Trump's or Rudolph Giuliani's conspiracy theories? Should the Senate have this information before we deliberate on the articles of impeachment?

SCHIFF: Mr. Chief Justice, senators, I think there are three categories of relevant material here. The first, you do have access to and that is the supplemental testimony of Jennifer Williams. And I would encourage you all to read it. I think it sheds light very specifically on the vice president. And what he may or may not know, these are the scheme. So, I would encourage you to read that submission. There is a second body of intelligence that the committees have been provided that is relevant to this trial that you should also read. And we should figure out the mechanism that would permit you to do so. Because it is directly relevant to the issues we are discussing and pertinent. There's a third category of intelligence too, which raises a very different problem, and that is that the intelligence communities are, for the first time, refusing to provide to the Intelligence Committee. And that material has been gathered. We know that it exists, but the NSA has been advised not to provide it. Now, the director says that this is the director's decision. But nonetheless, there is a body of intelligence that is relevant to request that we have made. That is not being provided. And that raises a very different concern than the one before this body. And that is are now, other agencies like the intelligence community that we require to speak truth to power that we require to provide us the best intelligence, now, also withholding information at the urging of the administration. And that is, I think, a deeply concerning and new phenomenon that problem we've obviously had with other departments that have been part of the wholesale obstruction, but now is rearing its ugly head with respect to the I.C. But the shorter answer to the question on a part from Jennifer Williams, are there other relevant materials? The answer is yes. And I would encourage that you and we work together to find out how you might access them.

ROBERTS: Mr. Majority Leader?

SEN. MITCH MCCONNELL (R-KY): Mr. Chief Justice, the next two questions, one from each side will be the last before we break for dinner. I would ask that following the next two questions to senators, and a recess for 45 minutes.

ROBERTS: Thank you. Senator from Alabama, yes.

UNIDENTIFIED MALE: I send a question to the desk.

ROBERTS: Question is directed to counsel for the president. How does the non-criminal abuse of power standard advanced by the House managers differ from maladministration and impeachment standard rejected by the framers? Where is the line between such an abuse of power and a policy disagreement?

DERSHOWITZ: Thank you very much for that question because that question, I think, hits the key to the issue that's before you today. When the framers rejected maladministration and recall that it was introduced by Mason and rejected by Madison, on the ground that it would turn our new republic into a parliamentary democracy, where a prime minister, in this case, the president can be removed at the pleasure of the legislature. Remember too that in Britain, impeachment was not used against the prime minister. All you needed was a vote of no confidence. It was used against lower-level people. And so, maladministration was introduced by Mason and Madison said, no, it would turn us -- it was just too vague and too general. Now, what is maladministration? If you look it up in the dictionary, and you look up synonyms, the synonyms include abuse, corruption, miss rule, dishonesty, misuse of office, and misbehavior. Even Professor Nicholas Buoy, a Harvard professor who was in favor of impeachment. So, this is an admission against interest by him. He's in favor of impeachment. He says abuse of power is the same as misconduct in office. And he says that his research leads him to conclude that a crime is required. By the way, the congressman was just completely wrong. When he said I'm the only scholar who supports this position in the 19th century, which is much closer in time to when the framers wrote. Dean Dwight of the Columbia Law School wrote that the weight of authority by which he meant the weight of scholarly authority and the weight of judicial authority, this is 1867. The weight of authority is in favor of requiring a crime. Justice Curtis came to the same conclusion. Others have come to a similar conclusion. You asked what happened between 1998 and the current to change my mind, what happened between the 19th century and the 20th century to change the minds of so many scholars? Let me tell you what happened. What happened is that the current president was impeached. If in fact, President Obama or President Hillary Clinton had been impeached, the weight of current scholarship would be clearly in favor of my position, because these scholars do not pass the shoe on the other foot test. These scholars are influenced by their own bias, by their own politics, and their views should be taken with that in mind. They simply do not give objective assessments of the constitutional history. Professor Tribe suddenly had a revelation himself. At the time when Clinton was impeached, he said, oh, the law is clear. You cannot -- you cannot charge a president with a crime, at least, a sitting president. Now, we have a current president, Professor Tribe got woke, and with no apparent new research, he came to the conclusion over this president can be charged while sitting in office. That's not the kind of scholarship that should influence your decision. You can make your own decisions, go back and read the debates. And you will see that I am right that the frame is rejected vague, open-ended criteria, abuse of power, and what we had is the manager made a fundamental mistake again. She gave reasons why we have impeachment. Yes, we feared abuse of power. Yes, we feared criteria like maladministration that was part of the reason. We fared incapacity. But none of those made it into the criteria. Because the framers had to strike a balance. Here are the reasons, we need impeachment. Yes. Now, here are the reasons we fear giving Congress too much power. So, we strike a balance. How do they strike it? Treason, a serious crime. Bribery, a serious crime or other high crimes and misdemeanors. Crimes and misdemeanors, akin to treason and bribery. That's what the framers intended. They didn't intend to give Congress a license to decide who to impeach, knew not to impeach on partisan grounds. I read you the list of 40 American presidents who have been accused of abuse of power. Should every one of them be impeached? Should every one of them have been removed from office? It's too vague, the term. Reject my argument about crime, reject it if you choose to. Do not reject my argument that abuse of power would destroy, destroy the impeachment criteria, the constitution and turn it in the words of one of the senators of the Johnson trial to make every president, every member of the Senate, every member of Congress be able to define itself from within their own bosom. We heard from the other side that every senator should decide the -- should decide whether you need proof beyond a reasonable doubt or proof by a preponderance. Now, we hear that every senators should (INAUDIBLE) abuse of power.

(CROSSTALK)

UNIDENTIFIED MALE: Thank you, counsel.

DERSHOWITZ: Thank you, Mr. Chief Justice.

UNIDENTIFIED MALE: President -- Mr. Chief Justice.

ROBERTS: Senator from Maryland.

UNIDENTIFIED MALE: Chief Justice, I have a question on behalf of Senator Markey and myself that I send to the desk for the House managers.

ROBERTS: The question is as follows. Supreme Court Justice Byron White in a concurring opinion in Nixon versus United States, 1993, acknowledge that the Senate "has very wide discretion in specifying impeachment trial procedures." But stated that the Senate "would abuse its discretion", if it were to, "insist on a procedure that could not be deemed a trial by reasonable judges." If the Senate does not allow for additional evidence and the testimony of key witnesses, with first-hand knowledge of President Trump's actions and intentions, would a reasonable judge conclude these proceedings constitute a constitutionally fair trial?

SCHIFF: I think the answer is yes. I don't know that we need to look to the words of a prior justice to tell us that a trial without witnesses is not really a trial. It's certainly not a fair trial if the house moves for with impeachment, and comes before the Senate, and wants to call witnesses, and wants to make its case, and is told, thou shalt not call witnesses. That's not a fair trial. I think that the American people understand that without reading the case law. They go to jury duty themselves every year. And they see, the first thing that takes place after the jury is sworn in is the government makes its opening statement, the defense makes theirs, and then begins the calling of witnesses. I do want to take this opportunity to respond to Professor Dershowitz's argument while they're fresh. You can say a lot of things about Alan Dershowitz, you cannot say he's unprepared. He's not unprepared today, he wasn't unprepared 21 years ago. And to believe that he would not have read 21 years ago what Mason had to say, or Madison had to say, or Hamilton had to say, I'm sorry, I don't buy that. I think 21 years ago, he understood that maladministration was rejected, but so was a provision that confined the impeachable offenses to treason and bribery alone was rejected. I think the Alan Dershowitz from 21 years ago understood that, yes, while you can't impeach for a policy difference, you can impeach a president for abuse of power. That's what he said 21 years ago. Nothing has changed since then. I don't think you can write off the consensus of constitutional opinion by saying they're all never Trumpers. All the constitutional law professors, in fact, let's play a snippet from Professor Turley, who was in the House, defending the president and see what he had to say recently.

JONATHAN TURLEY, FOX NEWS CHANNEL CONTRIBUTOR: An abuse of power, in my view, it's clear, you can impeach a president for abuse of power, you can impeach a president for non-criminal conduct.

SCHIFF: OK. Now, we can't argue plausibly, that his position is owing to some political bias, right? I mean, just a few weeks ago, he was in the House, arguing the case for my GOP colleagues that the president shouldn't be impeached. Now, he did say, well, if you could actually prove these things, you could prove, as indeed we have, that president abused his power by conditioning military aid, help his reelection campaign, yes, that is an abuse of power. You can abuse -- you can impeach for that kind of abuse of power. And that's exactly what we have here. We're not required to leave our common sense at the door. If we're to interpret the Constitution now as saying that a president can abuse their power, and I think the professor suggested before the break that he can abuse his power in a corrupt way to help his reelection, and you can't do anything about it. You can't do anything about it, because if he views it as in his personal interest, that's just fine. He's allowed to do it. None of the founders would have accepted that kind of reasoning. In fact, the idea that the core offense that the founders protected against, the core offense is abuse of power, is beyond the reach of Congress to impeachment would have terrified the founders. You can imagine any number of abuses of power -- a president who withholds aid from another country at war as a thank you for that adversary allowing him to build a Trump Tower in that country. That may not be criminal, but are we really going to that we're going to have to permit a president of the United States to withhold military aid as a thank you for a business proposition? Now, counsel acknowledges a crime is not necessary, but something akin to a crime. Well, we think there's a crime here of bribery or extortion, conditioning official acts for personal favors. That is bribery. It's also what the founders understood as extortion. And you cannot argue, even if you argue, well, under the modern definition of bribery you have got to show such and such, you cannot plausibly argue that it's not akin to bribery. It is bribery, but it's certainly akin to bribery. But that's the import of what they would argue, that, no, the president has a constitutional right. Under Article Two, he can do anything he wants. He can abuse his office and do so sacrificing our national security, undermining the integrity of the elections and there's nothing Congress can do about it. Thank you, Mr. Manager.

UNIDENTIFIED MALE: We're in recess.

BAIER: As you just heard, the Senate impeachment trial is now on a dinner break for about 45 minutes. We'll have a recap of today's questions and answers from Capitol Hill and the response from the White House in just a few moments. I'll also speak live with West Virginia Democratic Senator Joe Manchin about where he stands in the impeachment trial. Let's start, though, with a few headlines in other news today. About 200 American citizens evacuated from the epicenter of the coronavirus epidemic in China are now in Southern California. Their chartered plane from Wuhan China landed at an Air Force base in Riverside this morning where they're being screened again for the virus. This comes as the death toll from the outbreak eclipses 160 in China. Here in the U.S. there are still no deaths and so far only five confirmed cases. We are learning tonight the helicopter that crashed in southern California Sunday killing Kobe Bryant, his daughter, and seven others, did not have a crash warning device. The experts say it's unclear whether the terrain warning system, which is not required, would have saved their lives. An investigator with the National Transportation Safety Board said the pilot slammed into a foggy hillside after a minute-long high-speed plunge. This afternoon, Bryant's widow, Vanessa, updated her Instagram with a picture of her lost husband and daughter. Stocks were mixed today on the news the Federal Reserve will leave its benchmark interest rate unchanged. The Dow gaining 12, the S&P 500 lost a fraction, the Nasdaq was up five. U.S. authorities on Wednesday announced the discovery of the longest smuggling tunnel ever found on the southwest border, stretching more than three-quarters of a mile from Tijuana, Mexico, into the San Diego area. U.S. Customs and Border Protection said in a press release, the tunnel originates in an industrial area in Mexico and extends a total of 4,309 feet. We're now on a break in the Senate impeachment trial as senators ask questions of the legal teams, both sides. The biggest question of all, whether senators will vote to allow witnesses. That's still to be decided Friday. Both Republicans and Democrats are fighting to keep their sides unified. Both camps are dealing with potential breaks in their ranks. We'll speak, as I mentioned, with Senator Joe Manchin about how he may vote on all fronts in just a few minutes. But first, we have FOX team coverage. John Roberts at the White House with a huge political win for President Trump today, the signing of the USMCA deal amid the impeachment showdown. But we begin with chief congressional correspondent Mike Emanuel with a recap on Capitol Hill. Good evening, Mike.

MIKE EMANUEL, FOX NEWS CHIEF CONGRESSIONAL CORRESPONDENT: Bret, good evening. On the issue of witnesses Senate Majority Leader Mitch McConnell met with Alaska Senator Lisa Murkowski, who is one of the moderate Republicans who has expressed an interest in more testimony. On the Senate floor there's been plenty of questions and answers.

(BEGIN VIDEOTAPE)

JOHN ROBERTS, SUPREME COURT CHIEF JUSTICE: This is a question for the counsel for the president.

EMANUEL: President Trump's impeachment trial entering a new phase, written questions from senators submitted to the chief justice.

PATRICK PHILBIN, TRUMP IMPEACHMENT ATTORNEY: The proper process wasn't followed here, because it was a partisan and political impeachment that they wanted to get done all around timing for the election.

ROBERTS: Does it matter if there was a quid pro quo?

EMANUEL: But the questions, a mixture of political rhetoric and wonky constitutional law, didn't break much new ground.

ALAN DERSHOWITZ, HARVARD LAW PROFESSOR EMERITUS: If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.

EMANUEL: The Q&A session so far mostly allowed each side to reiterate some of their central themes.

REP. ADAM SCHIFF, (D-CA) CHAIRMAN, HOUSE INTELLIGENCE COMMITTEE: When you have a witness who is as plainly relevant as John Bolton, who goes to the heart of the most serious and egregious of the president's misconduct, to turn him away, to look the other way, I think is deeply at odds with being an impartial juror.

EMANUEL: After 16 hours of senator questions, the real drama begins addressing the issue of witnesses with the expectation it could be a close vote. Today Senator Susan Collins echoing her fellow moderate Mitt Romney said she doesn't want to hear from just John Bolton.

SEN. SUSAN COLLINS, (R-ME): It's also very important that there be fairness, that each side be able to select a witness or two.

EMANUEL: Democrats are adding to the pressure for wavering Republicans.

SEN. SHERROD BROWN, (D-OH): My colleagues need to grow some spine in the next 48 hours and vote for witnesses. They are fearful this president will come into their states and campaign against them.

EMANUEL: But all is not rosy for the Democrats. Three moderates, Joe Manchin of West Virginia, Doug Jones of Alabama, and Kyrsten Sinema of Arizona, are considering voting to acquit the president. That issue hit a nerve with Senate Democratic Leader Chuck Schumer who is trying to hold hit caucus together, particularly on whether the White House team gets to call its own competing witnesses.

CHUCK SCHUMER, (D) SENATE MINORITY LEADER: We have had total unity on the issue that will be before us. It's not up to Joe Manchin whether to call Hunter Biden.

(END VIDEOTAPE)

EMANUEL: Until now Democrats have appeared completely unified. This potential fracture comes at a delicate time ahead of critical votes as soon as Friday. Bret?

BAIER: Mike Emanuel live on the Hill. Mike, thanks. President Trump telling Republicans to not be bullied into allowing witnesses in the impeachment trial. We have just received a statement from the lawyer for John Bolton about his possible testimony. Also tonight, President Trump is celebrating another political triumph, the president signing the new North American trade deal, an agreement he calls cutting edge and state of the art. It also was a bipartisan piece of legislation. Chief White House correspondent John Roberts has the story tonight live from the north lawn. Good evening, John.

JOHN ROBERTS, FOX NEWS CHIEF WHITE HOUSE CORRESPONDENT: Good evening to you, Bret. On the USMCA, it was a campaign promise that the president's opponents, even some of his supporters didn't see a need for back in 2016. But over the past three years President Trump has steadily built a case to dramatically rewrite the trade relationship between the United States, Canada, and Mexico, and he sold it to Congress.

(BEGIN VIDEOTAPE)

ROBERTS: With the backdrop of workers and union leaders and corporate bigwigs in the audience, President Trump today celebrated the biggest bipartisan win of his presidency, signing the USMCA into law.

DONALD TRUMP, (R) PRESIDENT OF THE UNITED STATES: Everybody said this was a deal that could not be done, too complicated, too big, couldn't be done. We got it done.

ROBERTS: The president hadn't even put pen to paper before House Speaker Nancy Pelosi claimed credit for it.

REP. NANCY PELOSI, (D-CA) HOUSE SPEAKER: We were able to make vast improvements. If we weren't, we would not have been able to pass the bill.

ROBERTS: The South Lawn ceremony was, in part, to draw a contrast with the proceedings on the Capitol Hill. The president thanking Republicans senators for their support.

TRUMP: I want their vote.

ROBERTS: Also urging Republicans to resist increasing pressure to call witnesses in the Senate trial, tweeting this morning, "Remember Republican, the Democrats already had 17 witnesses. We were given none. Witnesses are up to the House, not up to the Senate. Don't let the Democrats play you." Today, a revelation regarding the number one talked about witness, former national security adviser John Bolton. In a letter from the NSC, Bolton was told the manuscript of his upcoming book appears to contain significant amounts of classified information, some of it at the top-secret level. Bolton is told the manuscript may not be published or otherwise disclosed without the deletion of this classified information. That letter was sent January 23rd. Three days later, significant portions of the manuscript were leaked to "The New York Times." National Security Adviser Robert O'Brien doubts it was leaked by anyone under his charge.

UNIDENTIFIED MALE: I don't think the book was leaked by the NSC. I'm pretty confident of that.

EMANUEL: While Bolton claims in the manuscript that he was very concerned about the president's Ukraine policy, in this interview from Radio Free Europe at the end of August, he appeared to show none.

JOHN BOLTON, FORMER NATIONAL SECURITY ADVISER: He and President Trump have already spoken twice. They were very warm and cordial calls. The success of the Ukraine maintaining its freedom, its system of representative government, a free-market economy free of corruption, and dealing with the problems of the Donbass and the Crimea are high priorities here obviously, but high priorities for the United States as well.

ROBERTS: The president himself could be fueling the fire to call Bolton, today tearing a strip off him on Twitter, saying Bolton "couldn't get approved for ambassador to the U.N., begged me for a non-Senate approved job, mistakenly says "Libyan model" on TV, and many more mistakes of judgment, gets fired, and goes out and immediately writes a nasty and untrue book. All classified national security."

(END VIDEOTAPE)

ROBERTS: As you mentioned, Bret, a few minutes ago we got a statement from Bolton's attorney, Chuck Cooper, who included in that statement a response to the January 23rd letter from the NSC sent on January 24 about Bolton saying, quote, if he is called to testify, "It seems certain that he will be asked question that will elicit much of the information contained in the Chapter of his manuscript dealing with his involvement with matters related to Ukraine. We do not believe that any of that information could reasonably be considered classified, but given that Ambassador Bolton could be called to testify as early as next week, it is imperative that we have the results of your review of that chapter as soon as possible." In the statement Cooper says he has heard nothing back from the NSC on that request since Friday. Bret?

BAIER: John Roberts live on the North Lawn. John, thanks. There's said to be a handful of Democratic senators considering a vote to acquit. We'll see. One of those mentioned frequently, West Virginia Senator Joe Manchin. He joins us tonight. Senator, thanks for the time. We know you'd like to get some dinner. So I don't want to keep you too long. But what did you learn today, if anything? Is anything today in your Q and A, and you asked a question today. Did it change your opinion on anything?

SEN. JOE MANCHIN, (D-WV): No, just gives us some clarity. There's some discrepancies that came back. If you hear basically the first two or three days of the prosecution from the House and the defense from the president. I think both of them were compelling. Both of them were articulate. They did their job, they did their homework, and presented them well. But there were some contradictions going on, and we wanted to make sure. So I think the questions are being asked are to get clarity to that. Tomorrow should help immensely, then we'll see where we go. And the witnesses are a big thing. I really believe that, and I think you know I feel witnesses are needed, and also documents that are pertaining to the charges brought against the president because at one time I heard the president say, and I agreed with him, he said I don't think I can get a fair trial over in the House. I need a fair trial and I want witnesses, and I think he should get a fair trial, and the Senate is where the trial will be.

BAIER: You know opening the door to witnesses obviously opens the door to Republicans and the Republican side calling witnesses.

MANCHIN: Sure.

BAIER: Today you were asked whether Hunter Biden was relevant. You said yes. That got pushback from Chuck Schumer of a whole bunch of your Democrats colleagues. You still feel that way?

MANCHIN: Here's the thing I said, Bret, and I want to make sure I clarify this. The clarity is, yes, the Republicans have a right to call witnesses. If the Democrats called two witnesses, shouldn't the Republicans have a right to call two or four, or whatever they agree on. What they might not agree on, well, this person is not relevant because it's really not the person, whether it's the Bidens or somebody else. You know what, my opinion was my opinion, but there should be somebody, and I would think Chief Justice Roberts should be that person when there's a discrepancy, should they be valid to be a witness because they have pertinent information that would be contributing to whether the president is convicted on the two articles of impeachment, or acquitted. That's all I have said and that's what I still feel would be fair.

BAIER: If the vote comes down and Republicans manage to get the votes to prevent witnesses, could you consider a vote to acquit in that scenario?

MANCHIN: The whole thing makes it difficult. It's just so hard to have a fair trial. I've never been a juror, I've never been called to jury duty in my entire life. So this is something new to me, but it's so fascinating. And I take this extremely serious. These are very, very serious charges. And it's the thing that no legislator should want to be studying for an impeachment of any president.

BAIER: So yes, you could consider a vote to acquit?

MANCHIN: I have everything open. I have not made my mind up. I am impartial. I want to wait until this whole process is over, and I will make my mind up then. So I'm not --

BAIER: You know where you come from, West Virginia seems to be making its mind up. Back in 2016 voted for President Trump by about 70 percent. And the recent polls that we can find on this issue of impeaching and removing the president, it's about the same, opposing removing the president, about 70 percent of West Virginians. Could you convict the president, vote to convict the president, and look at your constituents and say I understand you have a vote in nine months, but I determined it's so egregious I need to kick him out of office now?

MANCHIN: Bret, here's the thing. Basically my responsibility I take seriously, and I think the people that know me for a long time -- I've been in West Virginia a long time, been elected to many positions to represent the great state and the wonderful people of West Virginia, governor for two terms and then here for almost 10 years. They expect me to do what's fair and what's right, and I have to be able to go home and explain it. I've said this. If I can't explain it, I sure can't vote for it. If it makes sense and I can explain, then I can. That's why I've been waiting to see all of the evidence. I haven't been quick to judgment. Anybody who has prejudged the president one way or another, no person is above the law, and everybody is innocent until proven guilty, and that's the rule of law, and that's what I've been --

BAIER: Understand, and it's not finished yet, and I understand you have a couple more days here. But Republicans say, one, the aid was released, flowed out on time.

MANCHIN: Not on time, but it got out.

BAIER: It got out within the deadline. There was a meeting at the U.N. with the president of Ukraine. No announcements were made on investigations of the Bidens or Burisma ever, and the Ukrainians, including the Ukrainian president, said they didn't feel any pressure. Considering those things, understanding the presentations you've seen so far, if you get to Friday and there are no witnesses, considering those stipulations, can you vote --

MANCHIN: Let me give you one more scenario, Bret. Basically we know that Ukraine is fighting Russian aggression, and that's the main purpose for us in NATO and our allies. They're fighting Russian aggression. You have a new president who has no political experience whatsoever coming in. That person comes in, Zelensky, and basically he's talking to the superpower of the world, the most powerful person, and I'm sure that basically he's needing this very much. And I'm very appreciate of the president, 2017, 2018 has been very clear, he gave them lethal weapons, the Javelin to protect themselves. That was great. I was always for that. But then this assertion has been made, so we have to make sure that we uncover every stone, every cover. You cannot be involved, we cannot allow foreign enemies to be involved. That's the purpose of who we are as a country.

BAIER: I get it, and that's what Democrats are arguing. I'm just saying what actually happened.

MANCHIN: But that's a hard one. I've got to see --

BAIER: And can you turn to West Virginians and say I know all this stuff didn't happen, but because of how Democrats presented it we need to kick him out of office nine months before the election?

MANCHIN: Yes. And here's the other thing that's been brought to my attention, too. And you're saying so one should be kicked out of office unless the charges are absolutely factual. But with that being said, should we just say the same thing as what McConnell had said and Merrick Garland? It's one year, so why should we do anything?

BAIER: Let me ask you two more quick things. Do you have any concerns about the whistleblower and the contacts with the House Intelligence Committee? Adam Schiff said again today he doesn't know who the whistleblower is. Do you have --

MANCHIN: I have to believe -- I try to trust the people that I work with. If they lie to me once, then shame on all of us because I'd never believe them again. So if they're saying that they didn't know I would believe that they're telling the truth. If they're willing to do it under oath, that even tells me more. So it is what it is right now. We're in a he said-she said, whose back and forth, what side are you on. I'm a proud West Virginia Democrat, but I'm a more proud American, and I am not going to make a decision. I want my president to succeed and do well, but I want him to live within the law, and they're not above the law, so we all have to make sure that we're doing everything by the law.

BAIER: I tried to get to an answer a couple of times. Senator, we appreciate your time, and why don't you get some dinner and head back in.

MANCHIN: We will. You'll get an answer pretty quick, I can tell you that.

BAIER: I appreciate it.

MANCHIN: Thank you.

BAIER: Up next, a live report from Iowa as the countdown to the Iowa caucuses continues.

(COMMERCIAL BREAK)

BAIER: In tonight's Democracy 2020 report, Joe Biden leads Bernie Sanders in one of the final major polls before the Iowa caucuses. However, that same survey finds nearly half of those responding still open to switching their vote, and it's close. Correspondent Peter Doocy reports tonight from Des Moines.

(BEGIN VIDEOTAPE)

PETER DOOCY, FOX NEWS CORRESPONDENT: The senator from Vermont seems ready for an impeachment verdict.

SEN. BERNIE SANDERS, (D-VT) PRESIDENTIAL CANDIDATE: If you're asking me would I rather be campaigning in Iowa in the last week, I would.

DOOCY: His complaint comes as an outside group, Democratic Majority for Israel, runs very personal attack ads from Iowa.

UNIDENTIFIED FEMALE: I do have some concerns about Bernie Sanders' health considering the fact that he did have a heart attack.

DOOCY: Sanders shot back. "It's no secret that we're taking on the political establishment and the big money interests. And now one rival is sticking up for Sanders.

MAYOR PETE BUTTIGIEG, (D-IN) PRESIDENTIAL CANDIDATE: I would prefer to have this whole election negotiated on the questions of policy.

DOOCY: With five days left before the Iowa caucuses, 45 percent of Democrats could still change their minds. But the top five for now according to a new Monmouth poll are Joe Biden, Sanders, Pete Buttigieg, Elizabeth Warren, then Amy Klobuchar.

SEN. AMY KLOBUCHAR, (D-MN) PRESIDENTIAL CANDIDATE: Never did I think starting when I announced that campaign in the middle of a blizzard in February, and when I look back at it, I don't think some people thought I was make it through that announcement, much less be right here a week before, six days before the Iowa caucuses. But I knew it, my staff knew it.

DOOCY: Klobuchar quickly snuck away to Iowa between impeachment trial days as Warren opted to campaign by phone.

SEN. ELIZABETH WARREN, (D-MA) PRESIDENTIAL CANDIDATE: I wish we were doing and in-person town hall, but this is the best we can do.

DOOCY: Joe Biden is here in Iowa, saying his age could be a factor in his running mate.

JOE BIDEN, (D) PRESIDENTIAL CANDIDATE: One is capable of immediately being president because I'm an old guy.

DOOCY: That kind of talk is uncommon on the trail, but not as uncommon as talking dogs for Bloomberg.

UNIDENTIFIED MALE: I like Mike. I licked Mike.

DOOCY: Bloomberg is waiting to see which candidates are still around on Super Tuesday, and Bernie Sanders believes he'll be one of them.

SANDERS: I'm, having just come back from Iowa, deeply impressed by the number of volunteers that we have who are knocking on doors in bitter cold weather. And I think we stand a great chance to win in Iowa.

(END VIDEOTAPE)

DOOCY: Sanders is strong here and in New Hampshire despite not being able to spend much time in either state, but that's like most of the field. The only top tier Democrats on the ground in Iowa today are Biden, Buttigieg, Steyer, and Yang, just four candidates with just five days left. Bret?

BAIER: Countdown is on. Peter Doocy live in Des Moines, Peter, thanks. We'll be out there sometime this weekend. We'll see what the Senate does. That will determine it. Thanks for inviting us into your home tonight. That's it for the SPECIAL REPORT, fair, balanced, and still unafraid. The show -- a little different tonight, obviously, with the Senate testimony of the arguments, the Q and A by the senators. We've got you covered here on FOX News Channel. "THE STORY" hosted by Martha MacCallum starts right now starts after a short break.

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