michael barbaro

From The New York Times, I’m Michael Barbaro. This is “The Daily.”

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Today, the Senate votes to adopt the rules that will govern the rest of the impeachment trial. Julie Davis, on why they were not the rules that Senate majority leader Mitch McConnell had originally wanted. It’s Wednesday, January 22.

archived recording (mitch mcconnell) [GAVEL] The Senate will come to order. The chaplain Dr. Black will open the Senate with prayer.

julie davis

So on Tuesday, Senate majority leader Mitch McConnell opens the Senate for this first day of the official impeachment trial.

archived recording (mitch mcconnell) The Senate’s process will draw a sharp contrast with the unfair and precedent breaking inquiry that was carried on by the House of Representatives.

julie davis

He has spent weeks decrying the House impeachment inquiry as completely partisan and unfair.

archived recording (mitch mcconnell) Finally, some fairness. On every point, our straightforward resolution will bring the clarity and fairness that everyone deserves.

julie davis

And he is essentially saying, this is our chance to show that we can do our duty as senators. And —

archived recording (mitch mcconnell) Today’s vote will contain some answers.

julie davis

— today we’re going to find out whether that’s possible.

archived recording Democratic Leader — archived recording (chuck schumer) Now before I begin —

julie davis

And then Chuck Schumer, the Democratic leader, gets up to make his speech.

archived recording (chuck schumer) The McConnell rules seem to be designed by President Trump for President Trump.

julie davis

And it’s like they’re on different planets. He essentially says, Mitch McConnell is pushing for this process that’s completely unfair. There’s nothing fair about this. It’s completely skewed toward President Trump and what he wants to see in this trial, which Schumer says is basically a cover up.

archived recording (chuck schumer) If the president is so confident in his case, if leader McConnell is so confident the president did nothing wrong, why don’t they want the case to be presented in broad daylight? On something as important as impeachment, the McConnell resolution is nothing short of a national disgrace. This will go down, this resolution, as one of the darker moments in the Senate history, perhaps one of even the darkest.

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michael barbaro

What exactly are these two men really bickering over here?

julie davis

Well, for some time now, there has been this behind the scenes debate about what the rules were going to look like. Mitch McConnell has repeatedly said —

archived recording (mitch mcconnell) The structure for this impeachment trial should track with the structure of the Clinton trial. We have a precedent here.

julie davis

— don’t worry. This is going to be modeled on exactly the same rules that were adopted unanimously in 1999, when Bill Clinton’s impeachment trial was about to begin. And Democrats have essentially been waiting to see what that looks like. Is that actually going to be the case? And for a long time now, we have expected to see a copy of this resolution. And it’s not materializing.

archived recording (chuck schumer) Leader McConnell has still not come up with his proposal. That’s unheard of.

julie davis

And as the senators are debating these rules, and Schumer is demanding to see what Senator McConnell is going to propose, comes the deadline on Saturday evening for the White House to make its first filing in the impeachment trial. And the president’s lawyers lay out basically what they’re going to argue in this trial. They call on the Senate to “swiftly reject” these impeachment charges — that’s a quote from the filing — and acquit the president. Because the charges themselves are without foundation and, in fact, would weaken the office of the presidency if the Senate agreed to remove him for these charges.

archived recording (george stephanopoulos) A member of the president’s legal team, Alan Dershowitz, professor emeritus at Harvard Law School, also the author of the new book “Guilt by Association.” Professor Dershowitz, thank you for joining us. archived recording (alan dershowitz) Thank you. archived recording (george stephanopoulos) So your position that President Trump should not be impeached, even if all the evidence and arguments laid out by the House are accepted as fact. archived recording (alan dershowitz) That’s right.

julie davis

Number one, they say —

archived recording (alan dershowitz) The vote was to impeach on abuse of power, which is not within the constitutional criteria for impeachment, and obstruction of Congress.

julie davis

— the impeachment charges do not actually allege any violation of a law. There is no crime here. Abuse of power, they say, in the way that House Democrats have framed it, is essentially criminalizing the president doing his job. Number two, they say all of the findings that came forth in the House impeachment inquiry — the whole inquiry itself — is essentially fruits of a poisoned tree. That Democrats had a political vendetta against President Trump and decided to impeach him at all costs. And so anything that was uncovered, anything they unearthed in this inquiry is, by definition, illegitimate, and can’t really be considered as part of an impeachment proceeding. That it’s not really a constitutional thing, because of the way Democrats conducted the inquiry. And so shortly after the president’s legal team files its brief, Senator McConnell finally comes out with this draft of the resolution that he is going to offer to govern the procedures for the trial.

michael barbaro

For the rules.

julie davis

For the rules, exactly. And it looks a lot like the kinds of ground rules that the president’s team would want, based on what they’ve said in their filing.

michael barbaro

What do you mean?

julie davis

Well, remember, Mitch McConnell kept saying —

archived recording (mitch mcconnell) Essentially the same, very similar —

julie davis

— that he was going to model these rules after —

archived recording (mitch mcconnell) — in the Clinton trial.

julie davis

— the trial rules for Bill Clinton’s impeachment. Under those rules, each side had 24 hours to argue their opening case, and could use as many days as it would take to do that. In the Clinton trial, that meant three days on each side. This resolution specifically limits the time frame to two days for each side. So, yes, you can have 24 hours but you’ve got to finish your argument within two days.

michael barbaro

Why is that significant, one day?

julie davis

Well, it means if you’re going to compress it into two days, it means first of all, very long days. Because you’re starting at 1:00 p.m. And if you’re dividing 24 hours into two days, that’s 12 hours. You’re going to 1:00 a.m. That means a lot of these arguments unfolding at hours when most people are in bed and not watching or listening, which may be the point. And secondly, it means a much faster trial overall. It lets the President’s defense put up their case much quicker. But it also means that the entire opening phase of the trial is basically over by the end of the week, and we’re on to potentially a vote the following week.

michael barbaro

So longer days, shorter trial, clearly a benefit for the president.

julie davis

Right. Secondly, there was another key difference here. And that was that instead of just admitting the House impeachment inquiry findings into evidence at the outset, which is what they did in the Clinton trial, this set of rules would say: We’ll print all of the materials that the House impeachment inquiry produced and distribute them to senators. But actually, they will not be entered into evidence at the beginning. And in fact, they won’t even be considered until after we decide whether we’re going to hear from witnesses, until after we decide whether we’re going to hear new evidence not presented in the House inquiry. And only then will it be subject to a vote, whether or not to enter the House impeachment inquiry’s findings into evidence.

michael barbaro

So even the facts established by the House inquiry — even the transcripts of interviews — they’re all up for debate in these rules laid out by McConnell for the Senate trial.

julie davis

That’s right.

archived recording The Senate will convene as a court of impeachment.

michael barbaro

O.K. So that’s the situation on Tuesday, as the Senate convenes.

julie davis

Right.

archived recording If there is no objection, the Journal of Proceedings of the trial are approved to date.

julie davis

The Senate convenes at 1 o’clock in the afternoon as an impeachment court, with Chief Justice John Roberts presiding from the dais, with the House managers at a table to his right and President Trump’s legal team at a table to his left. Chuck Schumer and Mitch McConnell are at their lecterns on either side of the aisle.

archived recording (mitch mcconnell) Mr. Chief Justice. archived recording (john roberts) The Majority Leader is recognized.

julie davis

And Senator McConnell —

archived recording (mitch mcconnell) For the further information of all senators, I’m about to send a resolution to the desk providing for an outline of the next steps in these proceedings.

julie davis

— calls up this package of rules and —

archived recording (speaker) Senate resolution 483, to provide —

julie davis

— the clerk stands up and begins to read the resolution.

michael barbaro

Which we, of course, pretty much know already.

julie davis

Right. McConnell’s office put out a copy of it on Monday night. So I pretty much thought I knew what was in it. I was sitting at my desk, watching this on TV and kind of listening out of one ear.

archived recording (speaker) — including transcripts of public hearings or markups in any materials —

julie davis

— and I snapped to when I heard the word —

archived recording (speaker) — for a period of time not to exceed 24 hours over up to three session days.

julie davis

— “three” instead of “two” days, pertaining to how long each side would have to make their arguments. And I thought to myself, did he just make a mistake? And lo and behold, it was actually a change. Somewhere between when Mitch McConnell put out that resolution of rules the night before and the time the clerk got up to read it, he had changed the number of days that each side had to make their oral arguments from “two” to “three.”

michael barbaro

So more like the Clinton scenario.

julie davis

Right, more like the Clinton rules. And there was another big change that I think we all missed when he first read it out loud.

archived recording (speaker) Materials in this record will be admitted into evidence, subject to any hearsay, evidentiary or other objections that the president may make after opening presentations are concluded.

julie davis

McConnell dropped this idea of waiting until the trial is well underway to have a vote on whether to admit the House impeachment inquiry findings into evidence.

michael barbaro

Huh.

julie davis

This went back to the Clinton rules, where they’re admitted into evidence at the outset.

michael barbaro

Right. I mean, this is a genuine surprise on the floor of the United States Senate, at a moment where everything seems highly orchestrated to avoid any surprises. So what explains this last minute surprise roll back to the old Clinton rules?

julie davis

Well what explains it, I found out not long after, was that their Senate Republicans had gathered for lunch just before the trial got underway, in a room in the Capitol not far from the Senate floor. And during that private discussion, Susan Collins from Maine and Rob Portman from Ohio, two of the more moderate senators in the center of the Republican conference, said, we’re going to have trouble with this. We think this goes too far.

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And they raised it with Senator McConnell. And Lamar Alexander, we’re told, was also not entirely pleased. And I think it became clear very quickly to Senator McConnell that he was not going to have, potentially, the votes to push this through if he kept the rules the way they were. And so he literally, with lines marked out by pen and handwriting scrawled in the margins, he changed it.

michael barbaro

[LAUGHS] Wow, but just didn’t announce it.

julie davis

But didn’t announce it until the clerk started reading.

michael barbaro

We’ll be right back. And, Julie, what’s your understanding of the motivation for Susan Collins, Rob Portman, Lamar Alexander, to speak out and oppose McConnell on the rules that he first proposed?

julie davis

These are senators who are deeply concerned about having a trial that appears to be fair.

archived recording (susan collins) Each of us will take an oath, an oath that I take very seriously, to render impartial justice.

julie davis

They want to make sure that they’re not seen as going along with a process that people are going to dismiss as a partisan exercise.

archived recording You have consistently said you want to be careful in what you say about this, because you’re in a role of a juror. Given that, you must be sharing the concern of Senator Murkowski — that Senator McConnell out there saying we’re going to be lockstep with the White House — is going to cash some aspersions on this whole process. archived recording (susan collins) I have heard Democrats like Elizabeth Warren saying that the president should be impeached, found guilty, and removed from office. I’ve heard the Senate majority leaders saying that he’s taking his cues from the White House. There are senators on both sides of the aisle, who, to me, are not giving the appearance of and the reality of judging this in an impartial way.

michael barbaro

I’m struck, and correct me if I’m wrong. Susan Collins is up for re-election, and faces a pretty tough re-election this fall up in Maine. I have to imagine that on some level this may be about something as simple as winning re-election in a moderate state.

julie davis

Well, Senator Collins takes great offense at that suggestion. I can tell you firsthand. But there is no question that she is facing a huge re-election challenge. There’s no question that she’s under immense pressure. She knows that she already has the reputation among Republicans as kind of a Benedict Arnold, and someone who is insufficiently loyal to Trump. She knows that she has a reputation among progressives as someone who always kind of flirts with breaking from her party, but never actually follows through or seldom does. So she is really in a bind here. And she’s also a person who was there for President Clinton’s trial. She’s an institutionalist in the Senate, in a lot of ways. And it is very important to her to have this be consistent with the way they did things back then. Because it’s hard enough to make this decision in the kind of political vice that she’s in, without it looking like the process itself was broken.

michael barbaro

I don’t want to get too deep inside the head of a tactician in the Senate. But I’m wondering if it’s possible that Mitch McConnell is giving these moderate Republicans a victory on the rules in order to fend off a bigger and far more consequential break over an issue like allowing witnesses to come on the stand — witnesses like John Bolton, witnesses like Lev Parnas, this associate of Rudy Giuliani. In other words, I’ll give you this, but don’t ask for more.

julie davis

I think there could be some of that going on here. Mitch McConnell is a very shrewd strategist. He understands, better than anyone, the political bind that some of his members are in. And he knows that the process could be the most important thing to keep his Republican conference in line behind him. That as long as they feel like they have input and that this is fair, that he can sort of keep them in the fold. But the minute they start feeling like it’s not, the minute he starts having a big problem. And so sometimes it’s better to sort of propose something that seems really out there and let your moderates rein you in a bit, and allow the public to see that they’re playing that role, than to have them sort of not get any public credit for actually influencing the debate.

michael barbaro

O.K. So McConnell bends to the pressure that he’s feeling from the likes of Susan Collins, and delivers this pretty significant concession to the Democrats. Are the Democrats satisfied with this?

julie davis

Absolutely not.

michael barbaro

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archived recording (adam schiff) The House Managers, on behalf of the House of Representatives, rise in opposition to leader McConnell’s resolution. Let me begin by summarizing why.

julie davis

Their argument here is that this inquiry was totally different than the Clinton inquiry.

archived recording (adam schiff) The issue in the Clinton trial was not one of calling witnesses, but of recalling witnesses. All of the key witnesses in the Clinton trial had testified before the grand jury or been interviewed by the F.B.I., one of them dozens of times. And their testimony was already known.

julie davis

In that case, you had a White House who was willing to furnish witnesses, willing to furnish documents, and cooperated, even if not always willingly or happily, with the independent counsel who was investigating the case.

archived recording (adam schiff) Here, none of the witnesses we seek to call — none of them — have testified or been interviewed by the House.

julie davis

In this case, Democrats point out, the White House blocked everything. They blocked witnesses. They refused to turn over even one page of documents. And so they say this issue of witnesses has to be decided up front, that the Senate has to affirmatively pledge to hear from witnesses. Because otherwise, there can’t be a fair trial. And that argument just is not flying with Republicans, even with the moderates who want an opportunity down the line to consider hearing from witnesses. But they’re not going to break with precedent either and promise upfront that that’s going to happen.

archived recording (john roberts) The Democratic leader is recognized. archived recording (chuck schumer) Mr. Chief Justice, I send an amendment to the desk to subpoena certain documents and records from the White House. And I ask that it be read.

julie davis

So that’s why Democrats immediately start to bring motions on the floor, to change the rules to allow more new information to come out as part of this trial. They start offering proposal after proposal.

archived recording One, the Chief Justice of the United States, through the Secretary of the Senate, shall issue a subpoena to the acting Chief of Staff of the White House —

julie davis

— to subpoena White House documents, subpoena State Department documents.

archived recording — all meetings and calls between President Trump and the President of Ukraine — documents collected that pertain to the hold on military and other — the complaints submitted by a whistle blower within the intelligence community — White House visitor records, and email or text messages using personal —

julie davis

The Democrats feel like the more they can spotlight the process of the trial and make it clear that it’s all subject to a vote, and these few Republican senators may hold the key to whether the American people hear some of the information that they didn’t get to hear during the House impeachment inquiry, the better off they are. Because either it’s going to result in more information coming out, or it’s going to result in a lot more political pressure and maybe political damage to the Republicans who stay in line.

michael barbaro

So at the end of the day, it feels like just about everything in this stage of the impeachment trial is really about these three or four, maybe five moderate Republican senators, and pushing them if you’re Democrats. Every single day, trying to rattle them on this question of whether the trial is unfair, whether this is a cover up, making sure that message reaches their district. And for Republicans, to do everything possible to accommodate their needs, make them feel like this is a fair trial, make them feel like this is fine. That’s really what this trial is about now.

julie davis

Right. And so everything that comes up in terms of rules, in terms of how to go forward about this trial, has to be looked at with an eye toward what is going to pass muster for this small group of Republicans that is not automatically bought in to the process.

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michael barbaro

Thank you, Julie.

julie davis

Thank you, Michael.

michael barbaro

In the early hours of Wednesday morning, Senate Republicans were poised to adopt McConnell’s revised rules for the impeachment trial after rejecting repeated attempts by Senate Democrats to change those rules to include new witnesses and documents. In remarks, Senator Schumer praised the moderate Republican senators and appealed to them for additional help.

archived recording (chuck schumer) The public is realizing how unfair leader McConnell’s resolution is. And they are telling Republican senators to change it. We’re very glad they moved to three days instead of two, so we won’t be hearing arguments at 2:00 in the morning. It’s good they admitted evidence. But the real test will be witnesses and documents. Will our Republican senators put pressure on McConnell so that we really have witnesses and documents produced either now or after the arguments are made?

michael barbaro

We’ll be right back. Here’s what else you need to know today. On Tuesday, medical officials said that a mysterious virus that began in China, where it killed at least nine people, has now appeared in the United States. A man in Washington state, who had been traveling in China, became the first confirmed U.S. case of the illness, known as the “coronavirus.” As a result, several major U.S. airports in New York, Los Angeles and San Francisco have begun screening travelers for the virus.

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