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2 legal experts on the latest developments in Trump’s impeachment trial

Senators have now begun asking questions in President Trump’s impeachment trial. Georgetown Law School’s Victoria Nourse, who previously served as special counsel to the Senate Judiciary Committee, and Jamil Jaffer, former chief counsel to the Senate Foreign Relations Committee and associate White House counsel, join Judy Woodruff to discuss questions of calling witnesses and Trump's motives.

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  • Judy Woodruff:

    And for more analysis of day eight of the Senate impeachment trial, I'm joined by Victoria Nourse. She was special counsel to the Senate Judiciary Committee in the early 1990s. And she served as Vice President Joe Biden's chief counsel.

    And Jamil Jaffer, he served as chief counsel and senior adviser to the Senate Foreign Relations Committee, as well as senior counsel to the House Intelligence Committee and associate White House counsel to President George W. Bush.

    Hello to both of you. We appreciate your being here.

    Jamil Jaffer, let me begin with you.

    Overall, listening to these questions today, what does it tell about how close we are getting to some resolution?

  • Jamil Jaffer:

    Well, Judy, I think we largely are where we began, which is, it looks like the president is going to be acquitted.

    The Democrats have just not been able to get the number of votes they need from moderate Republicans, and maybe even be losing votes among Democrats, with respect to conviction of the president on both charges, not just the obstruction of Congress charge, but also the abuse of office charge.

  • Judy Woodruff:

    How do you see overall, Victoria Nourse, what's going on?

  • Victoria Nourse:

    Well, I see there greater movement towards having witnesses.

    I see — we don't have any commitments, because if you were one of the last senators who wanted to have witnesses, you wouldn't be telling people at this point. Why? You would want to avoid the media scrutiny and the criticism of your colleagues.

    But people are out there on Twitter and in media. My former bosses at the George H.W. Bush Justice Department are out there saying, we need witnesses. Republicans for the Rule of Law are out there saying, we need witnesses.

    And this is not going to be lost on senators, given the historic context of this trial.

  • Judy Woodruff:

    Well, the main witness, of course, the discussion is about, Jamil Jaffer, is John Bolton, President Trump's former national security adviser.

    We just heard Yamiche describe the back-and-forth, the letter from the White House official responding to John Bolton's attorney, and then the attorney writing back and saying, there's really nothing classified to worry about here.

    Where does that dispute fall? I mean, among the senators — you have worked with the Senate in — when tough decisions like this have had to be made. How do you see that coming down?

  • Jamil Jaffer:

    Yes, you know, it's a hard situation, because what they're presumably talking about is this conversation between the president and the president of Ukraine.

    The White House does take the view that — that conversations between heads of state, the content of those conversations, are often thought to be classified.

    If we look at even the released transcript, right, are classified. So there may be — and the discussions around that, the strategy they might adopt with respect to a foreign country, oftentimes, the discussions are classified.

    And so the question of whether the information is classified or not is interesting. But, of course, if folks wanted to, the book could be provided in classified form to the Senate.

    The challenge there for the White House, of course, is, they believe that those conversations are protected by the executive privilege. By giving that information to the Senate, they'd be waiving the privilege, and then you're opening the door to the testimony that Victoria was just talking about.

  • Judy Woodruff:

    And, Victoria, are you picking up from the questions and answers today and the rest of what you're learning from talking to people around this matter, whether there's a strong argument being built for bringing a witness on like John Bolton?

  • Victoria Nourse:

    Well, I think that the House managers are trying to impale the claim of executive privilege.

    There has been a fair amount of legal eagle legalisms about this, because there is a good argument that, in fact, the privilege has been waived already by the president. And, if that's true, then why not release it? I also think that John…

  • Judy Woodruff:

    Meaning that he said, you know…

    (CROSSTALK)

  • Victoria Nourse:

    He said, oh, yes, John Bolton, this is false. I had that conversation. It's just false. That doesn't waive it for the entire book.

    But the other thing is, John Bolton is a pro. He's been around here since I was a baby lawyer in Iran-Contra. And he knows that it's a felony to release classified information, and so does his lawyer, Chuck Cooper. So I doubt that they were planning on doing that when writing the manuscript.

  • Judy Woodruff:

    What else goes into making the decision that the senators will have to make as they decide how to vote?

    I mean, we talk about the politics that plays into this,the extreme pressure Republican senators certainly are getting from the White House, from the Republican majority. What else goes into making that decision?

  • Jamil Jaffer:

    Well, look, I think the senators, when they ultimately vote on the articles of impeachment, are want — are going to want people to say they had a full airing of the issues in play, right, whether that's through witnesses or testimony or documentary evidence, or simply what the House manners have presented, right?

    I think that every senator, regardless of where they ultimately fall on the question of conviction or exoneration, want to be able to say, we had a fair and fulsome process.

    And that's going to weigh heavily in the minds of those moderate Republicans about whether to introduce further evidence.

  • Judy Woodruff:

    Victoria, you're nodding.

  • Victoria Nourse:

    I agree with that.

    I think that they are going to be — this is such a public issue, that they will be hit on the campaign trail, why didn't you allow witnesses? We have protests. We have — if three-quarters of the American public believe that something is just a basic right in American trials, it's going to be hard to get over that concept.

    So they have to calculate whether it's more important get the witness or to let this go on, because it is going to go on. That's the thing that I don't quite understand. This is all going to come out. The book is going to come out.

  • Judy Woodruff:

    Eventually.

  • Victoria Nourse:

    Or March, whenever.

  • Judy Woodruff:

    Just one other thing I want to ask both of you about very quickly.

    And that is a statement by Alan Dershowitz, lawyer on the president's side today, in so many words, saying, even if the president did what it's alleged that he did, even if he asked the president of Ukraine to do this, and there were some political motives involved, it's all right, because he also believed it was in the best interests of the United States.

    So, saying that, even if there were several motives, we can't — we can't hold him accountable for it.

  • Jamil Jaffer:

    Well, what's interesting about that argument that Alan Dershowitz laid out is that there are no standards for an impeachment trial, right? What is the — what is the law as applied here?

    He's invented, in one way, his view of what the law is. And other members of trial team have done that on both sides of the aisle, right, try to establish what they think the burden of proof and the rule of law ought to be.

    But there is no rule here. And if the Senate thinks, like the House did, that this conduct was inappropriate for the president and abuse of his office, they can certainly convict and certainly remove the president. It just doesn't look like they have the votes to do that today.

  • Judy Woodruff:

    What about this question of motive?

  • Victoria Nourse:

    Well, I don't really think it's a question of motive.

    I think we know he asked for a favor. It says a favor. It's on the document.

    And, therefore, I find Professor Dershowitz's view particularly unpalatable, because it's just not in American democratic history to be able to investigate your political opponents. That's what autocratic regimes do.

  • Judy Woodruff:

    Well, it's interesting, because there's a number of arguments being made. That's one of them, and it's getting a lot of attention this afternoon and this evening.

    Victoria Nourse, Jamil Jaffer, thank you both.

  • Victoria Nourse:

    Thank you.

  • Jamil Jaffer:

    Thanks, Judy.

  • Judy Woodruff:

    And we ask you to please continue to tune in as our special live coverage of the impeachment trial continues tonight, and then again when it resumes tomorrow at 1:00 p.m. Eastern.

    Please check your local listings for that and online at our Web site or YouTube.

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