Transcripts For CNNW Smerconish 20210116

Constitution says judgments in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy office. And so that requires a separate vote. Twothirds is needed for conviction. 67 is the magic number requiring 17 republicans. But only a simple majority is needed for the second vote of a ban from running in the future. There is no precedent for president s being disqualified. But there have been other government officials hit with that double whammy. We are headed into unchartered waters in many areas. The biggest question is whether a former president can be tried by the senate after being impeached. Legal scholars have reached different conclusions. And it is written the original understanding and congressional practice bolsters the case for concluding that the end of Donald Trumps presidency would not end his senate the trial. But ross garber who has represented governors facing impeachment says if the framframers had end impeachment, they would have said so. And who presides of the trial . Article one Section Three says when the president of the United States is tried, the chief justice shall preside. But trump wont be the president. So john roberts roll is unclear. Does it mean that the president of the senate, Vice President Kamala Harris, will pleareside . We dont know. Another consideration, the impact on the new president , joe biden is eager to get to work next wednesday. And he needs his cabinet members to be confirmed as soon as possible. But under senate rules, po impeachment is the only issue the senate can consider once the trial begins and that is why wednesday the president elect tweeted in part i hope that they will deal with constitutional responses while also working on the other urgent business of the nation. So nothing in the constitution requires the house to transmit to the senate its articles of impeachment. Speaker pelosi can hold them indefinitely. And assuming the house does deliver the articles, it is not clear that the Senate Must Act on them. Again, not spelled out in the constitution. Bob bower served as white house do yo counsel to president obama and he said it is a Lindsey Graham cal con logical trukts that if theism peoples the senate would try the case. But he also said that the constitution does not direct the senate to try an impeachment. The house may choose to impeach or not. And one can imagine an argument that the senate is just as free in the exercise of its own sole power. So where does it leave us . First, if and when there is a trial conviction in the senate will not be easy. Remember, in the last Senate Impeachment trial, there were two counts. One was for abuse of power, the vote 5248 for acquittal. Only mitt romney broke ranks. The second charge was for obstruction of congress and the vote for being a quit it the was 5347, no gop senator supported it. So all ireyes on romney, murkowi and collins. But if mcconnell votes to convict, he could be a sixth and he could cause more to do so, but that is still not 17 and it assumes getting and i will 50 democrats to tow the line. If it appears unlikely that the democrats can line until votes for conviction, is it still worth trying trump . Well, yes, if you believe as the house voted that donald trump incited insurrection, the epitome of a high crime which also warrants disqualification from running again. By this logic, he must be tried even if he is not convicted. Plus, a trial in this case could be not only an opportunity to bury the lie that the election was stolen, but also an opportunity to produce evidence of the impact of the president s words and actions on those who were lawless at the capitol. If we dont move forward with a senate trial, it suggests that the house impeachment process was all just noise and we abandon the ten republicans willing to break ranks. And what message is sent . If you do it in your final few about weeks, hey, well let you slide. If trump is not tried and convicted, it raises another possibility. That this human phoenix think grab em by the pain, again, rises from the ashes. What if he comes back, wins the nomination and is again elected president . If that happen, many will ask why the senate didnt convict with and disqualify him when it had the chance. Does that sound farfetched . Maybe not. A brand new axios poll found that big majorities of republicans still think that trump was right to challenge the election loss and dont blame him for the capitol mob and still want him to be the 2024 nominee. A radio listener of mine anthony in San Francisco suggested that it should be the republicans who hope for conviction. He argued that trump is now an albatross, damaged political goods who cant win against but inside he is disqualified will shadow the gop this both the mid terms and president ial. And maybe that is why mcconnell is signaling that he is personally open to the idea of conviction. So what is the best path forward . From the wall street journal democrats are nowtriumphant in washington. They can take the high road and get on with their agenda. Mr. Biden could even take credit for suggesting it and his Approval Rating would soar, the shame is the democrats seem so be ob obsessed with they are the one this is w. H. O. Ho cant let them. And then in the l. A. Times, mcconnell said that he hasnt decided how he would vote at an impeachment trial following a report that he was pleased that the house was moving towards impeachment. There is no task more pressing for the senate at the moment than to hold trump accountable for the damage inflicted last week and mcconnell should do his part to ensure that the trial begins as soon as possible. But if that reckoning must wait until after trump leaves office, so be it. Well, that is the right call. It is not fair for president elect joe biden that even as he moves in to the white house donald trump will stirl be still be a focal point. However we have a process. The best course of action is that the process be followed. We cant cure disease by pretending that it doesnt exist. And so here is todays survey question at smerconish. Com. Is the impeachment trial worth it even if it appears unlikely that 17 republicans will vote to convict . From facebook, some of your thoughts and tweets and comments as they come in. If there is a trial, he will be on the tv and the front pages every day exactly what he wants. Well, harvey, that is true. But it depends how it ends, right . What if it ends with conviction and disequal fir indication . A and isnt theresomething to be gained from the sunlight to bury the lie . Once and for all that the lakes was stolen through a presentation of evidence and then to address the issue of whether the president s words, deeds, actions incited that insurrection. One more from facebook. If trump could run again and win, the issue is not trump. Well, pat, a point that i often make on my radio program. You know, i try and disabuse individuals of the notion that when he leaves office next wednesday, weve necessarily turned a page because the forces that put him there and the grievances held by 75 million americans will still be with us. And that they need to be addressed. Up ahead, what will the senate do . So happy that senator Amy Klobuchar is here. A capsule a day visibly fades the dark spots away. New neutrogena® rapid tone repair 20 percent pure vitamin c. A serum so powerful dark spots dont stand a chance. See what i mean . 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Ok everyone, our mission is to provide complete, balanced nutrition for strength and energy. Whoohoo great tasting ensure with 9 grams of protein, 27 vitamins and minerals, and nutrients to support immune health. The house expected to send the senate the article of impeachment but unclear how they will written with it. And conviction would require he have Senate Democrat and at least 17 republicans in order for conviction. And so what are the odds of that happening . Joining me now to discuss, Democratic Senate Amy Klobuchar. Thank you so much for being here. Im curious whether you apply game theory as i have been trying to do to the uncertainty of what is to come, or is your p perspective is that we need to move forward with the trial. It is really number two, but you cant be strategic and looking at what is best for the American People in how you proceed. I think that we have to go through the trial. As you pointed out, this is a situation where youve got a president that incited a riot, you cannot sweep it under the rug. And guess what, you can do three things at once. And let me explain what is going on right now which you know. Americans all over are juggling things. They are juggling their needs on laptops, they are juggling their jobs and trying to figure out their health care, they are juggling how to pay for prescription jobs and filling their refringe ratge rate tore. So there is no reason to abide by archaic old ways. Can we get an agreement to either do the trial on weekends, in the afternoon, and con duskts t conduct the hearing to get bidens agenda through. There is a lot of negotiation behind the scenes. And it didit does require an agt and i have no reason to believe that we cant get it done. We must do all at once. How optimistic are you sorry that we have a bit of a sound issue and well try to work through but how optimistic are you that you can get to 17 assuming all democrats remain in line . Well, i am very i dont know. Ill be honest with that. Itch talked to some of my colleagues of course the night of the insurrection and at that point only 6 republicans were voting for donald trump or 6 of all the senators. We had a 93 vote margin against the people that were trying to up end the election. And that is a really good number compared to where the house was and that might put us in a much better position. Do you worry one final question on this process and then i want to talk about the inauguration. Do you worry if it ends in acquittal he becomes a martin and as i said he has been counted out so many times before, but the early polling suggests thats are sticking with him . I dont think that we have a choice to go through this or not. And not only that, as you point out, once we get the conviction that he can be banned from running from office again. It is the principle of america that well be celebrates by the wayity inauguration that in america, the law is king. We must go through this. Im hoping given that they personally person experienced the horror that we will pick up more votes than you think. And you can see that have a number of regrets for their involvement in this in any way. Even though he ended up voting on our side to uphold the election. So here is what i would like to do. Youre so important to us and the inauguration is so important to all of us. I want to take a break, try to resolve an audio issue and hopefully come back with senator klobuchar right after this. My cat really needs me right now. Yknow, im trying to be less popular these days. Now . I use differin gel. Take the 90day challenge now and youll get consistently clear skin too. Do things differin. 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But this will be a dignified beautiful ceremony that joe biden and Kamala Harris deserve. We cannot let the thugs and the insurrectionists and angry mob bring us down. That is why you are seeing more security with Significant National guard. And for those concerned, ill tell you this, this event has always been planned and the securities is in the care of the secret service. It is always that way. Weve had inaugurations like president trumps first inauguration which there were security concerns, but we also had millions of people. That wont happen here because we made the hard decision as did the president elect that we would have a very small crowd to reduce any kind of risk of a superspreader event, any kind of risk of problems with the coronavirus. And that is why there is going to being less of those issues and of course much more emphasis when it comes to the perimeter and the guard and what they are doing. So in that way, it will give them the ability to make them a safe event and they have told us that. Were you already a United States senator at the time that you attended your first inauguration . No, i went for the bill clinton inauguration way back in 1993 it would have been. And so i have very fond memories, it was cold, i was sitting out with my husband and, yeah, we were able to go and watch it and of course they had the ball youss and parade. And all of that will be done virtually. And i do hope that your viewers will spend part of their day and evening watching this because the biden people have done everything to make this special for the American People. And the theemg me is about a determined democracy. And we picked the theme actually before all of this happened of course. And it is even more meaningful now. And you think about that well be in front of that dome where Abraham Lincoln when he gave his inaugural address, the doem wasnt even completed. And people would say, hey, why are you spending money in the middle of a civil war on this capitol dome. And he basically said as long as the capitol keeps going up, people will have faith. Im paraphrasing this. That the union will go on. And so i think about that symbolism, how important it will be that day on january 20th when they take the oath. Im angry about what happened. And im also saddened. Im not surprised that youve been there before. My own short story is that i guess it was january of 81, i had tickets to go to the reagan inauguration. Kind of funny, because they said standing room only. I didnt know that meant you could stand near the monument, that is how far you would be. But i went with my dad. And through happen stance, we ended up on the east side of the capitol after the inaugural and here came the entire cabinet and the new president and we were within, you know, a baseball throw. And i think about those sort of innocent happenstance moments. That now seem lost. Like nobody will have the opportunity to get up close and personal, it just breaks my heart. You get the final word. Okay, but i want to remind you and everyone watching here that that is happening to everyone in america, whether it is a funeral that people cant have anymore or go to and see their loved ones, a wedding, all of this, weve had to adjust. And what i love about this moment is it will be so somber, but also such a celebration because the light at the end of the tunnel, having a competent administration that will come in where com palgs,passioncompassi vaccine out there, get us through the pandemic, and also salvaging our very democracy. So i want people to think of it in that spirit. It is an amazing moment and well have every congressional leader, democrat, republican, sitting up on that platform. I know that. Behind the president elect, making clear that they support this democracy. And this transition of power that weve seen for 232 years of democracies. That is why it is so important. Okay. I accept everything you just said. It was beautifully said. Thank you, senator, really appreciate it. Sorry we had an audio snaf you few. But come back. I will be back. Thank you, michael. I want to remind everybody, go to smerconish. Com, answer the survey question. You certainly know senator klobuchars answer. Is the impeachment trial worth is in up ahead, the pentagon has authorized 25,000 members of the nauf inauguration is what is the nature of the threat . And can you be fired after you left your job or rather tried for impeachment after leaving office . Constitutional law experts cant seem to agree, ill have two of them make their case in a moment. Its time for the lowest prices of the season on the sleep number 360 smart bed. You can adjust your comfort on both sides. Your sleep number setting. Can it help me fall asleep faster . Yes, by gently warming your feet. But, can it help keep me asleep . 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Helping to prevent gum disease and bad breath. Never settle for 25 . Always go for 100. Bring out the bold™ the house iimhouse impeached trump. And the situation raises an interesting question, can the senate constitutionally try a former president . I have guests to argue both sides. For the against, that would be ross garber who has represented four u. S. Governors facing impeachment, he teaches at tulane law school. The for side, lawrence tribe from Harvard Law School who advise the House Democrats on president trumps impeechlt problem. And he wrote an oped saying that the senate can constitutionally hold and impeachment trial after trump leaves office. Professor, the plain language seems to speak of those who are in office. For example, and ill put it on the screen, article 2 section 4, the president , have not and all civil officers of the United States shall be removed from office, et cetera, et cetera. Judgment in cases of shall extend further than to removal of office. If they meant after youve left office, why wouldnt they have said so . Article one section 3 makes it clear that there are spree separate things. There is conviction, removal, which is off the table when you are no lockernger there, and th is disqualification. The reason they didnt say more than that, when they were writing the language, the main about xh aexample they had was impeach of a foreigner governor of india, warren hastings. He was no longer this office when he was impeached about no problem. If they had thought that there was a requirement that you be removable in order to be prevented from, again, doing harm, they would ahave said so. Besides, weve had a history including the famous impeachment of a very corrupt secretary of war in 1876. He saw the handwriting on the wall. Knew he was about to impeached. He thought he could get away with everything by resigning. And they said thank, but well go ahead anyway. And the senate voted by 3729 that they had jurisdiction to conduct an impeachment trial. So in my view, although i respect profession offerr garbe think that he is creating an obstacle where there isnt one in the language. And if there were the framers would have been crazy because they would have given a clear get out of jail free card, get out of future trouble free card to any president who just you decided to resign before he was convicted. Professor gasrber, your response. Yeah, so that is a very creative argument. A couple things. One in the bellnap case, the secretary was actually acquitted and they said that the reason was that they didnt believe that they had jurisdiction because he was no longer in office. But the professor breezes past the words of the actual constitution and also the history of impeachments. So i just want to focus on the words of the constitution. Article 2, section 4 as you noted, michael, at the top of the show says the president , Vice President and all civil officers of the United States shall be removed from office. The president , Vice President , and all civil officers, excuse me. As of noon on wednesday, we will have one president. The president will be joe biden. Donald trump will not be the president. And that phrase the president is used a lot in the constitution. It says the president ial be the commander in chief of the armed forces before as of noon on wednesday, donald trump will not be the president , will not be the commander in chief. And then there is that phrase shall be removed. If he is not president , he cant be removed. So that principle doesnt apply. And with respect to the english example, there is a lot about the american example that is different from the british prec precedence. In england, you can be executed in connection with an impeachment proceeding. In erkamerica, you cant. The worst that they can do to you is removal and disqualification from office. And one final thing, in our entire history, we have never done what professor tribe suggests. We have never actually convicted a former public official and barred them from office. Never happened before. Professor, go ahead. I dont find anything per swas saved in that with all respect. Article two does say that you cant remove someone if they are not an officer. We wont try to remove him, thank goodness he will have been removed by the operation of the very election that he tried to undo not only by twisting raffensperger arm but by orchestrating a deadly insurrection. My point is the other part of the language, article one, Section Three, which makes it clear that removal isnt the only thing on the table. Dsz qualdisqualifying from the future office is the whole point, it is protection from the country from someone who is too danger trous govern. A dangerous goofrn. White they had a king which we dont and excited people which we said we wouldnt do as a punishment, that has absolutely nothing to do with it. And it is true that in the bellnap case some who voted to acquit disagreed about the jurisdiction. I imagine that some of those who vote to acquit donald trump will use the excuse they dont think that the senate should be having the trial at all. But it will have a trial because it has jurisdiction, the history shows it, the language shows it and more important, the system wouldnt work if you could avoid a trial and possible consequences of a trial just by resigning your office. It wouldnt work. I want to pick up on that, professor, if i may. Put on the screen what professor tribe wrote on exactly that point in the washington post. And mr. Garber can respond. So doesnt he have a good point . Well, when we say when he says it is unworkable, for 230 years, that is how it has been. Weve never actually deployed the constitution the way that professor tribe suggests. And moreover, i think that it is actually it creates the right incentive. What we want to do is not provide an incentive to a corrupt public official to hang on, to stay in office, to fight, fight, fight, fight. What we want to is provide incentive for corrupt public official to resign. And so, you know, applying this way would create a perverse incentive. And the framers of the constitution actually spent a long time thinking about and drafting this constitutional provision about who actually is subject to impeachment. And they defined it as the president. Notably there were states at the time and frarmers knew this tha extended impeachment beyond an officials term in office. The framers decided not to include that kind of language. Which other states explicitly had. Understand understood. Professor tribe, you get 20 seconds and were done. Go. The reason this has not happened before is because we have never had a president so violent, so willing to yoe turn the results of a fair and free election. That is why this is unprecedented. And so that it will never happen again, we need to disqualify him. That requires holding a trial. But you cant change the constitution. Thank you both. Appreciate it. Thank you, gentlemen. Lets can check in on your tweets and Facebook Comments. From the world of facebook i think, even if he is convicted and cant run again, he will still have influence over his followers and therefore effect leaks of other members. He will seek revenge, they wont get rid of him. Truth in that, but i think that the greater power that he would have would be the risk of him being the nominee in 2024 even if he is not successful in that campaign. I mean, just sort of as i tried to do with my game theory analysis, think about what 2022 looks like if the procspects of dufd running again in 2024 is alive and well. He would wield influence in that scenario unlike if there were a conviction. And it is qudisqualification. I want to remind you, answers survey question. Is the impeachment trial worth it even if it is unlikely that 17 republicans will vote to convict . Still to come, this is our nations capitol as thousands of National Guard troops are there to protect against more violence protests. Ill ask a security analyst where are the threats coming from. Before discovering nexium 24hr to treat her frequent heartburn, marie could only imagine enjoying freshly squeezed orange juice. Now no fruit is forbidden. Nexium 24hr stops acid before it starts for allday, allnight protection. Can you imagine 24 hours without heartburn . Living with Metastatic Breast Cancer means being relentless. Because every day matters. And having more of them is possible with verzenio, the only one of its kind proven to help you live significantly longer when taken with fulvestrant, regardless of menopause. 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Ask your doctor about everyday verzenio. Is that net carbs or total . Eh, not enough fiber. Chocolate would be good. Snacking should be sweet and simple. The delicious taste of glucerna gives you the sweetness you crave while helping you manage your blood sugar. With nutrients to help support immune health. Federal Law Enforcement officials are warning that domestic extremists are more emboldened to carry out attacks on joe bidens upcoming inauguration. And throughout 2021 after seeing the quote unquote success of last weeks siege on the u. S. Capitol. It has prompted a massive show of force in washington, d. C. , jarring images of National Guard troops lining tstreets, and by inauguration day, 25,000 National Guard troops expected to be in washington, that is more than three times the number of u. S. Troops currently serving in afghanistan, iraq and syria combined. States are also increasing security at their capitol buildings ahead of what they warned as armed protests being planned in all 50 states from today through january 20. And check out Pennsylvania State capitol in harrisburg, deemed more at risk since it is one of the states where the Trump Campaign contested the election results. Facebook says it has seen online signals indicating the potential for more violence, one security official tells cnn the online chatter is off the charts. And Ken Cuccinelli acknowledges the chatter but says the threats are not specific. There is a good deal of online chatter, but not just about washington by the way. There is also conversations about state capitols though very radar, what is the threat on the inauguration and beyond . Joining me to discuss the Cnn National Security analyst, author of the book United States of jihad, who are americas homegrown terrorists and how do we stop them photo photo. Y you anticipated most of them. It transcends donald trump, true . The attack before 9 11 was carried out by Timothy Mcvay and it killed 168 people. Again, the Oklahoma City bombing i think really undercut that movement for a while but didnt go away. Now its come back with a vengeance and i think that you can almost characterize it as sort of a domestic insurgency. Its more than a couple of isolated terrorists. This is a fairly large movement. Some of them are armed. We saw a number of military veterans who were at the protest and riot at congress. And so this is yeah, i think its bigger than trump, its been around longer than trump. Trump has certainly amplified it and kind of given it permission, particularly the commander in chief sort of inciting effectively this riot. But it will not just fade away. I think it has been quite undercut, hopefully, by the terrible events at the capitol. Hopefully that may reduce some of its appeal. But not according to what were hearing from Law Enforcement, unfortunately. So take me into the world of how these folks communicate, because were all seeing in the footage this massive show of support of defense of the capitol. We all know what happened a week ago. What im not seeing, and maybe because its just not in the internet space that i travel, is where exactly are the threats and what do they consist of . Well, any kind of group thats interested in revolutionary violence is going to communicate on twitter and facebook to kind of recruit people. And then when they get serious about planning some kind of actual attack, theyre going to move to encrypted applications, like signal telegram has added 25 million new users in just three days and it has 500 million users around the world. Im not saying all these new users are interested in violence in the United States. The point is that you can i went on telegram yesterday and i found ten open sort of chat rooms for people who support proud boys, including one from philadelphia. And then you can move to these peer to peer encrypted parts of telegram, which lots of people on isis did when you get into the actual planning. So i cant prove thats happening because i cant get into these encrypted platforms, obviously, but i suspect that if people are really engaging in some serious planning of malfeasance, theyre doing it through these encrypted applications. Are you more concerned, final question, of the nations capitol or the capitols of states . I am more concerned about the latter, because theres a tremendous show of force and you would have to be pretty idiotic to try to do something at the capitol with the kind of situation we have now. The mall is closed, the bridges are going to be closed,. Now, the state capitols, thats a different matter. So it seems to me just based on what were looking at that the state capitols do have a serious issue and hopefully as many of them will be defended as possible. Peter, thank you as always, appreciate your expertise. Still to come, more of your best and worst tweets and Facebook Comments and well give you the final result of the survey question. Go to smerconish. Com right now. Is the impeachment trial worth it, even if it appears unlikely 17 republicans will vote to convict . You work hard for your money. Stretched days for it. Juggled life for it. Took charge for it. So care for it. Look after it. Invest with the expertise of j. P. Morgan, either with an advisor or online, through chase. After all, its yours. Chase. Make more of whats yours. New projects means new project managers. You need to hire. I need indeed. Indeed you do. The moment you sponsor a job on indeed you get a short list of quality candidates from our resume database. Claim your seventy five dollar credit, when you post your first job at indeed. Com home. Agerelated Macular Degeneration may lead to severe vision loss. So the National Eye Institute did 20 years of clinical studies on a formula only found in preservision. 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With persistent cardiovascular risk or who have had them in the past. Tell your doctor if you experience an irregular heartbeat or other heart rhythm problems. Possible side effects include muscle and joint pain. Celebrate less risk. Added cardio protection. Talk to your doctor about adding protection with vascepa. We made usaa insurance for veterans like martin. When a hailstorm hit, he needed his insurance to get it done right, right away. Usaa. What youre made of, were made for. Usaa time now to see how you responded to this weeks survey question at smerconish. Com, is the impeachment trial worth it, even if it appears unlikely that 17 republicans will vote to convict. Survey says whoa, 91 . I call that pretty decisive and at 38,000, i think were now over 40,000, a pretty big sample size as well. What do we have from social media this week . If we dont have the senate trial and convict, trump was right, he got away with shooting someone on 5th avenue. Remember, its complicated. I gamed it out, senator klobuchar came on. I was curious to know from her does she employ some kind of a game theory strategy and she said were aware of the ramifications. But no, if you believe the guy incited a riot, youve got to move forward. What else came in this week . This is from smerconish, saturday morning law class. I hope you mean that as a compliment and not as a snooze. I was so thrilled to have professors tribe and garber here to talk about the jurisdiction issue because i think that and tom cotton kind of tipped the hand, maybe, of the administration that thats probably going to be a large part of whats to come. Not so much a causation defense, not a defense on the First Amendment or propriety, certainly not of what the president had to say. But a defense that says, hey, here we are conducting this trial and hes no longer president of the United States, and that does place us in uncharted territory. So, yeah, it was a law class today and i hope that means it was a good thing. All right, thank you so much for watching. Big week coming up and ill see you next week. Good morning, everyone. Im john berman. Thank you for joining us for special live coverage. Right now our nations capitol is a city in lockdown. Law enforcement preparing for unrest and security threats ahead of joe bidens inauguration. As many as 25,000 National Guard troops will converge on the city. Thats more than are in afghanistan, iraq and syria combined. Around the country state capitols making preparations as the fbi warns there are armed protests planned in all 50 states in the coming days. It comes as were learning about some potential intelligence and security failure