Senate Democrats push for new witness testimony in impeachment trial

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Senate Democrats push for new witness testimony in impeachment trial

Trump's attorneys prepare to argue case; reaction and analysis from the 'Special Report' all-star panel.

This is a rush transcript from "Special Report with Bret Baier," January 20, 2020. This copy may not be in its final form and may be updated.

BRET BAIER, ANCHOR: A lot of breaking tonight. The president just boarded Air Force One, heading to Davos, Switzerland, the big economic addresses tomorrow. Obviously also tomorrow, the official start of the Senate trial. The ground rules first, both sides making their case as this all gets worked out tomorrow:

(BEGIN VIDEO CLIP)

ALAN DERSHOWITZ, HARVARD LAW PROFESSOR EMERITUS: -- is not, is not the criteria for impeachment, any more than dishonesty would be a criteria for impeachment.

HOUSE INTELLIGENCE COMMITTEE REP. ADAM SCHIFF, D-CALIF.: That's the argument I suppose you have to make if the facts are so dead set against you. You had to go so far out of the mainstream to find someone to make that argument. You had to leave the realm of constitutional law scholars and go to criminal defense lawyers.

ROBERT RAY, TRUMP IMPEACHMENT ATTORNEY: Our job as part of the president's defense team is to show why how the House managers do not have a case.

REP. HAKEEM JEFFRIES, D-N.Y.: The most important thing is that the American people deserve a fair trial. The Constitution deserves a fair trial.

(END VIDEO CLIP)

BAIER: A number of pages to the White House's effort, the brief. One of them essentially makes an abuse of power argument. "By limiting impeachment to cases of treason, bribery, and other high crimes and misdemeanors, the Framers restricted impeachment to specific offenses against already known and established law. House Democrats newly invented "abuse of power" theory collapses at the threshold because it fails to allege any violence of law whatsoever."

The House responding to that, the managers, "This is the argument of a monarch with no basis with the Constitution. When the Framers worked the impeachment clause, they aimed it squarely at abuse of office for personal gain, betrayal of the national interest through foreign entanglements, and corruption of elections. President Trump has engaged in the trifecta of constitutional misconduct, warranting removal. He is the Framers worst nightmare come to life." Just some of the of the back and forth.

Let's bring in our panel: Chris Stirewalt is politics editor here at Fox News; Leslie Marshall, Democrat strategist, and Mollie Hemingway, senior editor at The Federalist. I'm keeping distance year. I have tea here. I promise I will talk this way.

Mollie, this is the argument that's being made. Tomorrow is about the ground rules in the U.S. Senate. And that is going to be a battle. What we are seeing from McConnell is that there's going to be 24 hours to make these cases for the House impeachment managers and for the White House over two days. That's 12 hours a day, 1:00 p.m. to 1:00 a.m.

MOLLIE HEMINGWAY, THE FEDERALIST: These are going to be very long days, and I think that's part of Senator McConnell's strategy to just get this done as quickly as possible by running it throughout the day.

I want to make a quick point. Adam Schiff, I think, was suggesting that Alan Dershowitz is not a constitutional scholar. He is a criminal defense attorney, but he is also a known constitutional law scholar, and that is probably why the president picked him.

What is interesting about today is finally got a little bit more of a feeling for what the president's defense is going to be, and we'll hear this as the cases are made, both the prosecution and the response. And the president's team says there is no crime, first and foremost. This is the first time we've had impeachment with no actual crime being alleged. Even with the Johnson impeachment, he was accused of breaking a law. That law was probably unconstitutional, but he was at least accused of an actual crime, which is not the case we have here.

They also say that the process was flawed. This was an argument that the Republicans in the House did a really good job of making. That was sort of one of their more successful things. And then they say, even if you take the best possible interpretation of their case, there are no facts to support it. We're kind of seeing that response that you just showed from the Democrats. They are really overstating what they have in terms of the quality of their evidence as suggested by the fact that they're trying to bring out more evidence.

BAIER: Leslie, they are, the White House is going down the route of fighting on the substance, the abuse of power back and forth. Here's Senator John Cornyn and Jerry Nadler on that.

(BEGIN VIDEO CLIP)

SEN. JOHN CORNYN, R-TEXAS: He's been charged with abuse of power, which is not to reason, which is not bribery, which is not a high crime and misdemeanor. So this is the first time in the history where a president has been impeached for a non-crime or events that never occurred.

HOUSE JUDICIARY COMMITTEE CHAIRMAN JERROLD NADLER, D-N.Y.: Abuse of power is the central reason for the impeachment clause in the Constitution. Trying to extort a foreign power to interfere with election is about as bad as you can imagine.

(END VIDEO CLIP)

BAIER: But to Brit Hume's point earlier, this is really aimed at Republican senators. They have to get 33 of them to make sure he doesn't get convicted and kicked out.

LESLIE MARSHALL, DEMOCRATIC STRATEGIST: I don't think he's going to be convicted and kicked out, but I do think it comes down to what will happen going forward, whether there will be witnesses or not. Some people are considering Alan Dershowitz a witness because he's not technically a part of the legal team.

But to Alan Dershowitz, who I sat in on his class twice because I'm from Boston, I went to school there, and I used to be a big fan of his, quite frankly, but he's changed his tune greatly when it comes to specifically impeachment and the Constitution. In 1998 he said not only in his classroom but on national television, it certainly doesn't have to be a crime to be impeachable, abuse of power is not a crime. And also when he cited Hamilton and "The Federalist" papers, number 65, when you read that, it said, quote, inevitability of partnership as a reason to support the constitutional approach to try impeachment, which is completely opposite what Alan Dershowitz was saying and was putting forth.

When you look at polls that show 70 percent as of late today of the American people feel that there should be witnesses, I'm not sure what the Republicans doing is going to help them in the long run, especially politically, because they are not fighting, it looks like, facts, especially when they're talking about Democrats who are trying to undo an election. And I think the American people, regardless of their ideology, regardless of their politics as voters, are smarter than that.

BAIER: But Chris, this White House brief, this argument is essentially for those Republicans to take back home and say, look, there's nothing here. I'm not voting for witnesses either.

CHRIS STIREWALT, FOX NEWS POLITICAL EDITOR: We will see when we get there, right. We'll see when we get to the end of this. McConnell's process that he has laid out, the joke is they probably don't have 24 hours of arguments to make, and they didn't certainly in Clinton. So they're taking it and pushing it into fewer days. It's the same number of hours, but gosh, they are going to be under pressure to look busy and stay up late. Even if they don't have 24 hours in 12 hour increments to make the argument, they have to look like it because McConnell is now saying, you didn't want to use all of your time?

BAIER: With all due respect, there are some old birds in this group.

(LAUGHTER)

STIREWALT: That like to leave the nest on the early side, yes, quite so, quite so.

BAIER: In the most respectful of way, the early bird.

STIREWALT: Right, median age -- Methuselah.

The reality for Senate Republicans, there are plenty of them who believe that Trump did exactly what he is accused of and exactly what he said in public that he did. He said, yes, investigate Hunter Biden, I hope China does too. He said it in public. The House is within its rights to impeach the president for these things, and the Senate is within its rights to dismiss the charges against him. And that is how the system works. It's OK. Nobody needs to freak out. It's how the framers saw this happening. They knew it would be partisan, they knew it would be contentious. But they thought it was worth including anyway, so we've got to run the traps on this thing.

BAIER: And McConnell, they are not moving to a dismiss motion at the beginning. They're going to play it out first.

STIREWALT: But he has got it tucked in there in case things get out of hand. He's got a failsafe that if it looks like the matter is turning into a circus and it's belittling the Senate, they can move to kill it quickly.

HEMINGWAY: There is this inside the beltway consensus that there are these Republicans that you need to watch because they might side with Democrats on something, which is kind of interesting. Yes, we know these Republican senators who might have pressure to get all the media, people asking them questions. There are also Democratic senators who are under pressure too. They're running for reelection in states that President Trump won and will be contesting very hard.

BAIER: Doug Jones, Alabama.

HEMINGWAY: Gary Peters in Michigan. People might be willing to split their vote with a Trump and Gary Peters. They might be less likely to split their vote if he doesn't vote the right way in their mind on impeachment. And we forget that as popular as impeachment is in the media enclaves and the coast, it's not popular in the middle of the country, particularly among independents where the votes actually matter. Democrats and Republicans have already gone to their corners, but you're fighting for people who already have quite a bit of fatigue over this, and it might not be improved by more discussion of the same.

BAIER: Wait until tomorrow when the votes on the different things, there will be many different votes, and we're going to cover it, but it's going to get -- this is not a good tease for this.

(LAUGHTER)

BAIER: But it's going to get a little in the weeds here during that. But one thing on the vote on witnesses, you have a vote on witnesses, but then the White House could say executive privilege for somebody like John Bolton or Mick Mulvaney. That is a different vote. It would also be a Senate vote potentially. And it's a different argument that the Republicans who vote for witnesses may vote against changing executive privilege.

MARSHALL: Absolutely. And we know when the cameras are rolling and you don't have to have reality TV on MTV to show you how people do react, and politicians are not exception to that. To Mollie's point, I won't entirely disagree, but when I look at what happened with Democrats in the House, even those where they were in very red districts where Trump is still very popular, and they were freshman and still are freshman Democrats, they still voted to impeach. So I think in the Senate they may go along more party lines both on the left and the right, regardless of people saying, look at Susan Collins. No. She talks, and then she votes with her party.

HEMINGWAY: And not a single Republican voted with Democrats on that impeachment, of course, and several Democrats did side with Republicans, which is another reason why the focus on Republicans when it was Democrats who were unable to build a coalition is interesting.

BAIER: We shall see. And there is more tea tomorrow.

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