Trump’s legal team begins defense in Senate impeachment trial

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• Hari Sreenivasan:

  Joining me here in the studio to discuss today's impeachment trial are Jami Floyd, host and legal editor at WNYC New York Public Radio. And Ryan Goodman, co-editor in chief of Just Security. Jami, let me start with you. The defense, what do we learn today? This was supposed to be a trailer.

• Jami Floyd:

  Yes, I like that phrase. You go to the movies and you get a little sneak peek. Yeah. And that's pretty much what they did. They outlined what will be their rebuttal to the argument to remove President Trump from office. They laid out why they say the president did not violate the law. He was acting in his presidential capacity, they say, and anything that he did was not an impeachable offense. And they addressed it in a prequel fashion are both articles of impeachment. And then they said, you know, we'll sit down for today and we'll come back at your Monday with a more detailed rebuttal.

• Hari Sreenivasan:

  So in this, Ryan, one of the central contentions that they have is that what you've been hearing for three days over 24 hours is an incomplete set of facts. What are they talking about? What is the new information that the Democrats have been hiding?

• Ryan Goodman:

  So that was what they tried to do. They tried to suggest here we are not presenting to you new information that you haven't heard in the past three days. But a large part of it was addressed by the Democrats and the House managers. And Adam Schiff, even last night went through this pre-buttal where he said, here's what they're going to say tomorrow and here's what our response is to that.

• Hari Sreenivasan:

  Right.

• Ryan Goodman:

  They did fill it out to some degree with additional video of testimony by others. So they try to problem at times like when was the first time that the Ukrainians knew that the aid was suspended? But it was interesting because at the same time that they presented all the videos of the officials, U.S. officials saying, well, the first time I knew they knew was like late August. Then they leave out the video of one of the officials, the Defense Department official, Mr. Cooper, saying, actually, the first time that we knew in my department that the Ukrainians knew was July 25th, which is the very day of the call with President Zelensky.

• Hari Sreenivasan:

  So looking back over the last three days, did the House make its case well enough, considering we're really looking at four, maybe five Republican senators that might be convinced the ball?

• Jami Floyd:

  There are two stages going forward now. The next phase, is once Republicans finish with their 24 hour period of argumentation, if they take that full period, is whether or not those four or five who really only need four Republicans will agree to vote with Democrats to calling witnesses and bringing documentary evidence that may happen. I'm thinking it's less likely than I thought it was three days ago, based on what I'm hearing from Capitol Hill and what I'm seeing in the responses to some of the arguments from the Democrats. But that may happen whether or not you can actually get the number of votes you need to convict. That's a completely different question. That's the end game and highly unlikely. I think all analysts agree and I think the Democrats see that writing on the wall.

• Ryan Goodman:

  And I think one of the most interesting dynamics that we've seen in the past few hours and few days is that when the president's team now presents their facts and says, you've been told other things, here's some contradictory information. It actually forces this question of, OK, if I'm a senator and I can't really resolve it, what must I do but have a true trial where witnesses can come forward? Who knows the real answer to this? John Bolton, who knows the real answer to this? Mick Mulvaney And I think that's why that what that issue is going to come to us in a way that I don't think many of us anticipated after today's hearing.

• Jami Floyd:

  And what Republicans are saying in part or we'll be saying and began to say today is, well, why didn't you pursue that in the house? You know, you're so concerned about the political question and the political implications and the timing of the election. It was on you to pursue that in the House, but it is somewhat disingenuous when the White House was stonewalling. And even in a real trial and of course, we know this is not a courtroom in the truest sense of the word. This is a court of impeachment. But you can always call witnesses that weren't called in the grand jury setting. So this idea that we can't hear from witnesses is a bit of a fiction, and I think the Republican know it.

• Hari Sreenivasan:

  At the core of this is also seems to be a case that says what is the power of the presidency? Are these coequal branches of government? What is the extent of executive privilege that this individual can say, I'm using this power?

• Ryan Goodman:

  So it is a set of tough questions in that sense. And I do think one of the issues that the Democrats laid out well is the answer to that question will be with us for decades or centuries in the sense that we've been looking when we think about that question, well, what happened with the Johnson impeachment hundreds of years ago? What happened with the Nixon impeachment decades ago? And so what the answer to that question here will define the relationship between the two branches for a long period of time, so can it be the case that the president can say, you know, you want any information from us. We're not participating whatsoever. We're not going to tell you what specifically is executive privilege. Just no participation. That's why the letter this October 8th letter from the White House counsel to the House was declared by The New York Times in its headline, "White House declares war" on the impeachment inquiry because it really was just nothing. You'll get no documents, no officials, no matter how low or high they are in the chain. Right. And that's something extraordinary that I think the Democrats are trying to say to the senators, this is about us, too, as an institution.

• Jami Floyd:

  And the impeachment power is where Adam Schiff landed at the end of his argument, knowing that that would be the last thing he would say to the senators. What is the point of the impeachment power in the Constitution if it is not this moment in which we stand right now? So that is what this moment is all about. And that is why it is so historically important for this to be resolved in a way that understands the capacity of all three branches of government to check one another.

• Hari Sreenivasan:

  All right, Jami Floyd, legal editor at WNYC, and Ryan Goodman, co-editor of the Justice Security Blog. Thank you both.

• Jami Floyd:

  Thank you.

• Ryan Goodman:

  Thanks.