Ep. 1 - Trump On Trial

day of the impeachment trial. You know, we all know the arguments we've been hearing about impeachment now since about five seconds after Trump got elected. Did anything change today during these debates? You know, I don't think anyone's mind was changed. I think anyone who came in as a yes, it is still a yes. Anyone who came in as a no is still a no. I think that's true for the hundred senators. But I think that's also true

of the people at home. I mean, we're sitting here right now, it is two forty two in the morning. You've come here straight from the hill to this studio to do a podcast. I'll ask you why maybe in a little bit, but you're you're coming right on the heels of this debate, and yet nobody's mind was really changed. Well, we saw eleven motions from the Democrats, one after the other after the other. This was all a battle of pre trial motions. It's sort of the early battles in

a trial. And the weird thing was those eleven motions. It was the same thing over and over again. So I have to admit I expected the first one and maybe even the second one. I didn't expect them to keep filing basically the same motion, keep making the same arguments over and over again. It was like Groundhog Day that except they'd get up and have a different house manager stand up and make the same damn arguments. And you saw, like like the senators in the chamber, just

their eyes glazing over. And I'll tell you, Michael, what was revealing. So when we started at one o'clock, the Senate gallery was packed and lots of reporters up. There were the people sitting there as it went on. Within a few hours the reporters had cleared, half the reporters were gone, and by eight nine o'clock at night, the gallery was empty, like everyone had left and said, Okay, I don't know what's going on here, but I'm bored

out of my mind. This is what I was wondering the whole time, because I wasn't really surprised by much of what was going on. We knew what to expect other than the time. What are they thinking? I mean, what is the end game here for these democratic House impeachment managers? Look that they're trying to drive a message, but but I'm not sure what's gained by just droning on over and over and over again. What exactly that they thought was beneficial about talking at one thirty in

the morning, right who was listening? And you know? It was interesting? Also, I thought the house managers. Look, I'll say at the beginning, at the beginning, I thought the first couple of hours, the house managers were doing a pretty good job. They sounded more reasonable, They sounded less partisan than they than they were during during the House proceedings. It was good political theater. It was that there were

some good moments. I'm sure MSNBC will be clipping little segments of it and saying, oh, this was powerful and wonderful. But then it got number one really redundant. But but number two, it was striking to see especially Adam Shift and Nadler just lecturing and and condescending not only to the senators but to the American people. Right. It was a harangue by the end of it. It wasn't designed to convince. Yes, And I want to ask you about the theatrical side of it, because it seems to me

there are two theories on impeachment. And on the hand, you've got guys like Alan Dershowitz, who are on the president's legal team and actually was a professor of yours in law school, taught me criminal law. Well, what Professor Dershowitz has said is that there is a legal requirement for impeachment, So it's not just all political theater. There actually is a legal threshold you've got to meet for

an impeachable offense. Then on the other hand, you've got guys like former President Gerald Ford who said impeachment is pretty much whatever the Congress says it is, and high crimes and misdemeanors are however we wanted to find it at the time. You are not only a senator, you are a constitutional lawyer, one of the brightest legal minds in the country. Which is it is there a legal

requirement for impeachment. Look, there absolutely is. The Constitution specifies what's required for impeachment, and the framers, if you look at the standard, you can impeach a president for treason, bribery, or other high crimes and misdemeanors. That's what the Constitution specifies. And if you get to the heart of the problem with the House Democrats case here, it's that they have an alleged treason, bribery, or other high crimes or misdemeanors.

That their disagreement we heard a lot of this today, is they just don't like the guy. They hate President Trump, in case anyone miss that point, and they disagree with them. They disagree with them on foreign policy, they disagree with them on politics, and you know what, they're entitled to have that view. That's the beautiful thing about our democratic process. But disagreeing with someone politically or on policy is not sufficient grounds to impeach them. You've got to demonstrate treason,

which they haven't alleged. You've got to demonstrate bribery which they haven't alleged, or other high crimes and misdemeanors. And it's interesting if you look at so what is a high crime or misdemeanor. You can actually learn a lot from the history of the Constitution. When the Constitutional Convention began, the text of the Constitution just said treason or bribery,

so those are the only two grounds. And then at the Convention, George Mason, is one of the more respective of of the founding fathers, said, look, treason and bribery are too narrow. We need to be broader. So Mason proposed adding the word maladministration. So you're just no good at governing, you're no good at your job of being president. And he argued, look, there are circumstances we'd want to impeach a president that are broader, and so let's add this.

And James Madison, who is often referred to as the father of the Constitution, he stood up and he disagreed. He said, look, maladministration would be a mistake. What it would mean is you would have a president impeach any time the Senate disagrees with him, anytime there's a disagreement on policy or politics, they'd be impeached. And so it was Madison who proposed instead of maladministration, other high crimes and misdemeanors. And that was in turn what was adopted

in the Constitution. This is why I want your historical perspective here as well, because we're joking about how absolutely tedious and boring these impeachment proceedings were. This is an historic event. This is the third time that we've done this in American history. You know, we managed to make it almost eighty years in our country before we impeached a single president. Then we made it more than a hundred years after that before threatening to impeach another president.

Now we've impeached two out of the last four. It seems like this is speeding up. It seems like we're getting into a situation where the Congress is just going to throw out presidents that they don't like. Are we doing this too much? Is this a bad sign for the country. I think it's very dangerous. I think if the House Democrats standard this time, if that's what holds going forward, any time you have a president of one party in a House of a different party, they're going

to impeach him. We're just going to see this as a standard tool of political warfare. You know, you look at the two articles of impeachment the House voted out neither one of them alleges a crime, right like like on their face, they don't allege any violation of criminal law. They don't allege any violation of civil law. Well, if you don't allege the law was broken, it's not a high crime or miss demeanor. And that what was interesting about today. So this was all about whether to call

additional witnesses. Now, look, the House had seventeen witnesses. They only called prosecution witnesses. They didn't let the defense call witnesses. But getting here, house managers wanted to call a whole bunch more witnesses. They wanted to go on a fishing expedition, right and and sort of And why did they by the way, because they were trying to call They called all these witnesses, and they they heard them out, and then they took the impeachment vote. If they wanted more witnesses,

why didn't they call them before the impeachment vote? Because they haven't proven the case, right, and they know they don't have the evidence. You don't rewind, go go back a month or two. You may remember during the House proceedings there was a time when suddenly all the House Democrats began talking about bribery and I actually do stories explained why they did it, which is the D Triple C. THET Democratic Congressional Campaign Committee did focus grouping in and

pulled it and discovered briberies really bad. People don't like bribery. They're mad when their president's bribed. And and just about every House Democrat, like flipping a switch, began saying bribery, bribery, bribery. Well, you know what, bribery is an impeachable offense. If you can prove bribery, you got him. But the articles of impeachment don't allege bribery. Could They considered doing it right,

and then they pulled it back. And that's their problem right now is they heard that this witness testimony, they heard all this evidence, and they can't prove their case. So what they want to do is they want to try to bring in as many witnesses as they can and and go phishing try to find something to back up their case. What the Senate ended up doing today is we adopted a procedural order, basically a way of proceeding. And it is very very similar to what the Senate

did in the Bill Clinton impeachment. Bill Clinton impeachment had two phases. Phase one was opening arguments and questions from senators and there were no witnesses. There were no consideration of witnesses in phase one. And then after that the Senate debated and thought about should we have additional witnesses. They end up calling a few additional witnesses for depositions. So what we did today, what Senate Republicans did is took an order very very similar to the Clinton order.

By the way, that order was approved one hundred and nothing. It was bipartisan, it was unanimous, every Democrat, every Republican, but Senator that was then. This is now. That was when it was a democratic president. And now obviously, and I say this somewhat jokingly, but there is a lot of hypocrisy that's going around between these two impeachments that there is massive hypocrisy. Now, look, I will recognize hypocrisy

is a problem on both sides of the islets. It's not like Democrats have a monopoly on that, but it is striking the recency of the hypocrisy. You know, there was one moment where Pat Zippoloni, the President's White House counsel, led the defense team. He quoted from Berry Nadler, who just a few months ago had said a partisan impeachment from just one country would never work. It would be bitter and divisive and rip the country apart from just one party if you had just one party pushing this,

as the Democrats have in this impeachment. And what's interesting is that wasn't Jerry Nadler talking during the Clinton impeachment, although he said that back then. That was him last year, right, That was him trying to push back the far left in the Democratic Party saying no, no no, no, we can't impeach this guy because it can't be partisan. Unfortunately, that's where we are. And I think the way it's going to work going forward is we're going to have opening arguments.

It's going to start with the house managers. They got twenty four hours initially, by the way, our scheduling order provided for two days, twenty four hours over two days. The Democrats were screaming all day, two days is terrible. We can't possibly do it in two days. You guys are to cover up trying to give us twenty four not a trial, it's a cover up. By the way that Bill Clinton impeachment order twenty four hours exactly that's

an inconvenient fact. But okay, sure, so it's actually one of the things actually that the Senate Republicans had, Fine, we'll give you three days, so instead of twenty four hours over two days, twelve hours a day, we'll give you twenty four hours over three days, eight hours a day. I really hope that doesn't mean that the next three days we're going to listen to eight hours of them

repeating the same arguments. Yet, it was interesting today this was supposed to be fighting over pre trial witnesses, but the Democrats basically gave their opening arguments. Yes, and that actually was somewhat unexpected. Right out the bat Adam Schiff seemed to be making the argument on impeachment, not on these questions of whether they're going to call John Bolton or some other relevant witness. Well, and I think that's actually what House Democrats did most effectively today for the

first several hours, is they told their story. They treated this pre trial fight as an open argument. They were talking to the American people. I thought the first couple of hours they're pretty effective. And then it just started getting They just started repeating it and getting angrier and angrier as the day went on. You know, as I look at the White House defense team, I think they've

got some very talented lawyers. I think they made some good arguments today, but I also think they got two mired down in process, that there was too much being

lawyers and making lawyerly arguments. And what I hope we see in the days to come from from from the President's defense team is number one, that they get more into the substantive arguments, not just the process, not just the minutia, but the fundamental substantive argument that this was not this was not a high crime or misdemeanor, that it is always within a president's authority and a government's authority to investigate corruption, and I mean to address the

substance and also to tell a story that's something. Look, you could see the Democrats of trial lawyers their telen stories not just to the hundred senators in the room right but to the folks at home watching. I think we need to do a better job telling a story as well. And it's especially needed because the President hasn't had a chance to tell his story. The whole House proceeding they shut down the minority didn't allow minority witnesses, so we need to tell the basic narrative. That's what

the President needs to tell. I think that's what the Senate needs to tell is focus on the facts and substance, not a lot of rhetoric, not a lot of anger and emotion. I want to ask you about a specific story that Congressman Adam Schiff, one of the House impeachment managers, was telling today, really because I think most people have no expertise on it at all, including myself. Adam Schiff seemed to suggest that there is pretty much no role

for the judiciary in impeachment proceedings. He said, we got to get the courts out of it, we got to get the judges out of it. And I thought it was a very odd thing to say while Chief Justice John Roberts was presiding over the impeachment as per the Constitution. Did shift just get it wrong? I mean, what is the what is the balance of power here is? So look, if you look at the role of impeachment, impeachment itself

is a combination of the two branches. If you look in the Federalist Papers, Alexander Hamilton writes from the Federalist Papers about how the Framers struggled with to whom to give trying impeachment, and they wanted a body that was independent. They wanted a body that had credibility, and they chose the Senate. They considered the Supreme Court. So they were there, they considered, maybe we should have the Supreme Court try impeachment. They said, now let's give it to the Senate, but

let's make the Chief Justice preside. And so it was sort of a hybrid of the two if you look at privilege questions, So all of the debate about witnesses comes right down to privilege and an executive privilege. Executive privilege is something every president has had. It's it's it's the ability to have your closest advisors, your national security advisor, give you candid advice without being hauled into Congress and put on national television. Now asserting privilege. Look, we're all

familiar with attorney client privilege. You talk to your lawyer. Your lawyer can't be brought in and put in the stand as a general matter, to tell them what to tell everyone what you said to your lawyer. Their spousal privilege. You know, you tell your wife or your husband something at night that they can't force your wife to come into court and testify against you. Now, they're exceptions to it, but privileges are commonplace, and courts routinely litigate privileges. Those

are those are questions courts are used to considering. In this case, the House Democrats, frankly, I think are playing games, and the best way to understand it is look at John Bolton. A lot of the argument today was about John Bolton, john Bolton's national security advisor to the President. So House Democrats said, we want John Bolton to testify. And John Bolton did something very interesting and I think

very clever. John Bolton's lawyer went to a federal court in DC and filed a pleading that said, Judge, my client has two conflicting obligations. House Democrats have asked him to become testify, but the White House has asserted executive privileges, said he can't testify. And John Bolton's lawyer said, look, my client doesn't know what to do, so your honor, he'll do whatever you tell him to do. We put ourself at the mercy of the court. You, judge, tell

John Bolton what he should do. The next step is remarkable. You know what the House Democrats did they said, never mind. They literally backed off. So there was another guy, Charles Cooperman, who was John Bolton's deputy, who they'd issued a subpoena for. They withdrew the subpoena from Cooperman, and they told the court we're not going to subpoena John Bolt. Never mind. We're not going to call him as a witness, we're not going to subpoena him, we're not going to fight him.

And then they get to the sentence. The first thing they want to do a subpoena John Bolt, and they literally passed on it in the house. Contrast that to the impeachment of Richard Nixon. Now Nixon ultimately resigned, but if you remember, there was a lot of litigation concerning Nixon and you had a grand jury subpoena for the White House tapes, remember the Oval office. Dixon had a tape tape recording system. Bad idea, but he did it,

very bad idea. By the way, as an aside, I don't understand all the people who have ALEXA in their house, like, like, why exactly you want to bring a tape recorder into your home twenty four hours a day. We're just matockists glutton for a bunny. You know, it really would be different if they renamed Alexa like like Tricky Dick. People would be much much more nervous about it. Okay, set

that aside. In that case, the litigation went all the way to the US Supreme Court, and the Supreme Court issued an order to the White House hand over the tape, and it was I think two days later Richard Nixon resigns. Right, that's actually the right way to do it. Look, if the House Democrats wanted to get John Bolton's testimony, they should have subpoenaed him, and they should have fought for it. And and the claims of privilege are real, they're serious.

You don't laugh about them and dismiss them. You fight about them and litigate them and resolve them. And that can be done relatively quickly. As we saw with Nixon in this case, they're not interested in that. This is ultimately about a political attack on the president more than anything else. Well, what I want to know is what lunch was like today in the Senate dining hall. But by that I mean is the Senate taking this seriously or does everyone Everyone's just made up their mind and

they're dragging it out because I don't know. You tell me, Well, look, number one, when we have lunch in the Senate, we don't have lunch together. All the Republicans have lunch together, all the Democrats. I mean, it's sort of like the Crypts of the Bloods. I mean it is. It is a much geekier, much older version cool. I don't know, very yeah, danger um. You know, bill cream is a really popular product. It's and that's true every day in

the Senate. But the way it's working now during impeachment, we're starting every day at one pm under the Senate rules, that's when the trial starts, right, So the Republicans were having lunch meeting eleven thirty or noon each day. So we went and had lunch, and we're having a vigorous discussion about about the upcoming trial. And it's actually where so Mitch McConnell had drafted I mentioned earlier, had drafted that each side we get twenty four hours over two days.

And the Democrats had been screaming that was a massive cover up, but it was actually Republican senators. They said, you know what, if they want an extra day, give them an extra day. Save twenty four hours. But if they want three days instead of two, finally, let them not the end of the world. I thought that was a very I agreed with that. I thought that was a reasonable thing to do. And of course it didn't

stop the complaining at all. You give them, give them what they want, and they still say it's a massive cover of it. But but that was most of the discussion actually at lunch today. Going forward, so we're going to have opening arguments from the House three days, opening arguments from the White House three days, although I guarantee you they're not going to go three days. I think they will be much shorter than that. We've then got sixteen hours of questions from senators, and the questions are

a little bit weird. It's not going to be individual senators asking questions. As much as I would love to cross examine these House managers, and I promise you I would love love to go out. I'd be looking forward to it, Senate rules don't allow it. So our questions have to be written. I got to write them down

and then the Chief Justice asks them. And it's sixteen hours and it alternates typically Democrat Republican, Democrat Republican, So, by the way, anyone listen to this, let me let me say, if you have a question that you think needs to be asked, needs to be asked to the house managers, or needs to be asked to the White House team, use Twitter. I'm at Ted Cruz and and just use the hashtag verdict, and we're going to be

watching Twitter to get from you. I have to say, as as absolutely tedious as the hearings were today, I was so excited to wait three in the morning to come here because it is not possible to get closer. You really need to get more. I need to get I need a hobby, I need It's really not possible to get closer to this impeachment trial than you. I mean, then one of the jurors, who is there, who is enduring all of these these tedious arguments all the time,

and who's seeing this truly historical event happen. What I want to ask you, though, is you put in a thirteen hour work day, not exactly probably the most pleasant day you've had in the Senate, and then you decide to come immediately here to this studio and do this podcast. What are you thinking? Why on earth are you doing that? Look, substance matters. This is a time where our country is divided, I mean is angry. I mean we see emotion, we see bitter anger. I think truth and substance matters. I

think facts matter. I think the Constitution matters. And so this podcast during impeachment, we're going to do it each night coming and just just just talking about what happened. Then we will be covering this every single night as the impeachment trial unfolds, and then of course there will be a whole lot more to talk about as well. But but on issues going forward. You know, if you turn on cable TV, you get people in five six minutes snippets they're yelling at each other, that are engaged

in just political rhetoric. We need to be talking to actual you know, when you asked me about high crimes and misdemeanors, I could just say this isn't it Why because my party is the one in the White House. Well that's not the right answer. Let's actually talk about what the constitutional standard is. And that's true on issue after issue, whether it's it's it's it's free enterprise versus socialism, whether it's it's it's it's it's gun control versus the

Second Amendment, every issue. I think we need to engage more. We need to win people's hearts and minds, and so what I hope to do is have have conversations really talking about issues that matter, and that's what this podcast is all about. Right. They don't necessarily get a hearing on TV. Unfortunately, they often don't get much of a hearing in the Senate. But we're hoping to flesh that out here year, and we'll be able to speak, of

course to all of the listeners. So definitely they should send those questions, and would also be great, of course if all of the listeners could subscribe to Verdict with Ted Cruz and leave a five star review. You know. Unfortunately, I was just getting excited for us to get into the really important public policy matters like mexit. You know, Megan Markle and Prince Harry, we're going to touch on

things that matter. But we've run out of time and you need to get back to the Hill and get back to the Senate with an I don't know, three or four hours or something like that. It's to tomorrow one o'clock. Presumably we start with opening arguments, although I don't know if we will see house managers try to do more delay tech, because I hope not. I hope

they actually dive in into the Barretts. And I'm looking forward to the President's defense team having a chance to lay out the subsident merits they need to get into that more. I think it's important for the American people to hear it, and we haven't seen it yet, and maybe we'll see it tomorrow. And certainly whatever happens tomorrow, and all we can expect is the unc expected. We will be right back here breaking it down with as

inside a review as you can possibly get. On the Senate, on the impeachment trial, and of course on the Constitution. Be sure to tune back tomorrow. I'm Michael Knowles. This is verdict with Ted Cruz.