00:02:38.300I mean, what is the endgame here for these Democratic House impeachment managers?
00:02:42.300Look, they're trying to drive a message, 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 1.30 in the morning.
00:03:22.480It was—there were some good moments, I'm sure.
00:03:26.100MSNBC will be clipping little segments of it and saying, oh, this was powerful and wonderful.
00:03:31.580But then it got, number one, really redundant.
00:03:35.220But number two, it was striking to see, especially Adam Schiff and Nadler, just lecturing and condescending not only to the senators but to the American people.
00:03:55.740And I want to ask you about the theatrical side of it because it seems to me there are two theories on impeachment.
00:04:03.500And on the one 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.
00:04:12.800Well, what Professor Dershowitz has said is that there is a legal requirement for impeachment.
00:04:18.040So it's not just all political theater.
00:04:19.900There actually is a legal threshold you've got to meet for an impeachable offense.
00:04:24.380Then 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 want to define it at the time.
00:04:48.160The Constitution specifies what's required for impeachment.
00:04:51.080And the framers, if you look at the standard, you can impeach a president for treason, bribery, or other high crimes and misdemeanors.
00:04:59.800That's what the Constitution specifies.
00:05:01.880And 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.
00:05:12.340That their disagreement, we heard a lot of this today, is they just don't like the guy.
00:05:16.580They hate President Trump in case anyone missed that point.
00:06:00.900And then at the convention, George Mason, who's one of the more respected of the founding fathers, said, look, treason and bribery are too narrow.
00:06:23.940And James Madison, who is often referred to as the father of the Constitution, he stood up and he disagreed.
00:06:29.520He said, look, maladministration would be a mistake.
00:06:31.720What it would mean is you would have a president impeached any time the Senate disagrees with him.
00:06:37.140Any time there's a disagreement on policy or politics, they'd be impeached.
00:06:41.240And so it was Madison who proposed, instead of maladministration, other high crimes and misdemeanors.
00:06:47.680And that was, in turn, what was adopted in the Constitution.
00:06:51.620This is why I want your historical perspective here as well, because we're joking about how absolutely tedious and boring these impeachment proceedings were.
00:07:32.640I think if the House Democrats standard this time, if that's what holds going forward, any time you have a president of one party and a House of a different party, they're going to impeach him.
00:07:42.520We're just going to see this as a standard tool of political warfare.
00:07:46.280You know, you look at the two articles of impeachment the House voted out.
00:07:51.560Neither one of them alleges a crime, right?
00:08:47.580You may remember during the House proceedings, there was a time when suddenly all the House Democrats began talking about bribery.
00:08:54.820And actually, news stories explained why they did it, which is the DCCC, the Democratic Congressional Campaign Committee, did focus grouping and polled it and discovered bribery is really bad.
00:09:20.440If you can prove bribery, you got him.
00:09:23.780But the articles of impeachment don't allege bribery.
00:09:26.880They considered doing it, right, and then they pulled it back.
00:09:30.300And that's their problem right now is they heard this witness testimony.
00:09:35.040They heard all this evidence, and they can't prove their case.
00:09:38.820So what they want to do is they want to try to bring in as many witnesses as they can and go fishing, try to find something to back up their case.
00:09:48.860What the Senate ended up doing today is we adopted a procedural order, basically a way of proceeding.
00:09:55.980And it is very, very similar to what the Senate did in the Bill Clinton impeachment.
00:10:00.280Bill Clinton impeachment had two phases.
00:10:02.500Phase one was opening arguments and questions from senators.
00:10:46.580Now, look, I will recognize hypocrisy as a problem on both sides of the aisle.
00:10:50.460It's not like Democrats have a monopoly on that.
00:10:53.660But it is striking the recency of the hypocrisy.
00:10:57.880You know, there was one moment where Pat Cipollone, the president's White House counsel, who led the defense team, he quoted from Jerry Nadler, who just a few months ago had said a partisan impeachment from just one country would never work.
00:11:12.100It would be bitter and divisive and rip the country apart.
00:11:15.120If you had just one party, if you had just one party pushing this, as the Democrats have in this impeachment.
00:11:21.040And what's interesting is that wasn't Jerry Nadler talking during the Clinton impeachment, although he said that back then.
00:12:35.220This was supposed to be fighting over pretrial witnesses, but the Democrats basically gave their opening argument today.
00:12:41.520Yes, and that actually was somewhat unexpected.
00:12:43.540But 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.
00:12:54.020Well, and I think that's actually what House Democrats did most effectively today for the first several hours, is they told their story.
00:13:01.680They treated this pretrial fight as an opening argument.
00:13:04.920They were talking to the American people.
00:13:06.320I thought the first couple of hours they were pretty effective.
00:13:08.140And then it just started getting – they just started repeating it and getting angrier and angrier as the day went on.
00:13:16.720You know, as I look at the White House defense team, I think they've got some very talented lawyers.
00:13:20.940I think they made some good arguments today.
00:13:23.340But I also think they got too mired down in process.
00:13:26.460There was too much being lawyers and making lawyerly arguments.
00:13:31.460And what I hope we see in the days to come from the president's defense team is, number one, that they get more into the substantive arguments, not just the process, not just the minutiae, but the fundamental substantive argument, that 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.
00:13:54.660I mean, to address the substance and also to tell a story.
00:14:00.180That's something – look, you could see the Democrats are trial lawyers.
00:14:03.740They're telling stories not just to the 100 senators in the room.
00:14:10.060I think we need to do a better job telling a story as well.
00:14:15.740And it's especially needed because the president hasn't had a chance to tell his story.
00:14:21.360The whole House proceeding, they shut down the minority, didn't allow minority witnesses.
00:14:26.000So we need to tell the basic narrative.
00:14:29.320That's what the president needs to tell.
00:14:30.900I 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.
00:14:39.280I 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.
00:14:49.860Adam Schiff seemed to suggest that there is pretty much no role for the judiciary in impeachment proceedings.
00:14:58.020He said, we've got to get the courts out of it.
00:14:59.320We've got to get the judges out of it.
00:15:00.540And I thought it was a very odd thing to say while Chief Justice John Roberts was presiding over the impeachment as per the Constitution.
00:15:10.800I mean, what is the balance of power here?
00:15:13.620So, look, if you look at the role of impeachment, impeachment itself is a combination of the two branches.
00:15:19.680If you look in the Federalist Papers, Alexander Hamilton writes in the Federalist Papers about how the framers struggled with to whom to give trying impeachment.
00:15:29.860And they wanted a body that was independent.
00:15:32.280They wanted a body that had credibility.
00:15:37.040So they considered maybe we should have the Supreme Court try impeachment.
00:15:40.340They said, no, let's give it to the Senate, but let's make the Chief Justice preside.
00:15:44.720And so it was sort of a hybrid of the two.
00:15:47.180If you look at privilege questions, so all of the debate about witnesses comes right down to privilege and executive privilege.
00:15:54.120Executive privilege is something every president has had.
00:15:57.160It'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.
00:16:21.460You 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.
00:16:28.600Now, there are exceptions to it, but privileges are commonplace, and courts routinely litigate privileges.
00:16:35.880Those are questions courts are used to considering.
00:16:39.340In this case, the House Democrats, frankly, I think are playing games.
00:16:44.660And the best way to understand it is look at John Bolton.
00:16:47.860A lot of the argument today was about John Bolton.
00:16:49.940I'm John Bolton's national security advisor to the president.
00:16:52.940So House Democrats said, we want John Bolton to testify.
00:16:56.660And John Bolton did something very interesting and I think very clever.
00:17:01.360John Bolton's lawyer went to a federal court in D.C. and filed a pleading that said,
00:17:07.020Judge, my client has two conflicting obligations.
00:17:12.160House Democrats have asked him to come testify.
00:17:14.840But the White House has asserted executive privilege and said he can't testify.
00:17:18.520And John Bolton's lawyer said, look, my client doesn't know what to do.
00:17:22.400So, Your Honor, he'll do whatever you tell him to do.
00:17:25.340We put ourself at the mercy of the court.
00:17:27.920You, judge, tell John Bolton what he should do.
00:19:04.920You don't laugh about them and dismiss them.
00:19:06.940You fight about them and litigate them and resolve them.
00:19:09.800And that can be done relatively quickly, as we saw with Nixon.
00:19:14.180In this case, they're not interested in that.
00:19:16.480This is ultimately about a political attack on the president more than anything else.
00:19:21.680Well, what I want to know is what lunch was like today in the Senate dining hall.
00:19:25.880By 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.
00:19:38.580Well, look, number one, when we have lunch in the Senate, we don't have lunch together.
00:21:55.600And we're going to be watching Twitter to get ideas from you.
00:21:58.680I have to say, as absolutely tedious as the hearings were today, I was so excited to wait until 3 in the morning to come here because it is not possible to get closer.
00:22:10.560I need, it's really not possible to get closer to this impeachment trial than you.
00:22:16.780I 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.
00:22:25.740What I want to ask you, though, is you put in a 13 hour work day, not exactly, probably the most pleasant day you've had in the Senate.
00:22:32.900And then you decide to come immediately here to this studio and do this podcast.
00:22:56.300And so this podcast, during impeachment, we're going to do it each night, come in and just, just, just talking about what happened that day.
00:23:02.720We will be covering this every single night as the impeachment trial unfolds.
00:23:06.900And then, of course, there will be a whole lot more to talk about as well.
00:23:09.660But, but on issues going forward, I, I, I, you know, if you turn on cable TV, you get people in five, six minute snippets that are yelling at each other, that are engaged in just political rhetoric.
00:23:20.140We need to be talking the actual, you know, when you asked me about high crimes and misdemeanors, I could just say, this isn't it.
00:23:25.260Why? Because my party is the one in the White House.
00:23:29.020Let's actually talk about what the constitutional standard is.
00:23:32.000And 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.
00:23:42.400Every issue, I think we need to engage more.
00:23:45.960We need to win people's hearts and minds.
00:23:48.160And, and so what I hope to do is have, have conversations really talking about issues that matter.
00:23:54.260And, and, and that's what this podcast is all about.
00:23:56.600They, they don't necessarily get a hearing on TV.
00:23:59.900Unfortunately, they often don't get much of a hearing in the Senate, but we're hoping to flesh that out here.
00:24:04.560And we'll be able to speak, of course, to all of the listeners.
00:24:07.240So definitely they should send those questions.
00:24:09.020And it would also be great, of course, if all of the listeners could subscribe to Verdict with Ted Cruz and leave a five-star review.
00:24:17.620You know, unfortunately, I was just getting excited for us to get into the really important public policy matters, like Mexit, you know, Meghan Markle and Prince Harry.
00:24:27.300We were going to touch on things that matter, but we've run out of time.
00:24:30.040And you need to get back to the Hill and, and get back to the Senate within, I don't know, three or four hours or something like that.
00:25:00.280And certainly whatever happens tomorrow, and all we can expect is the unexpected.
00:25:04.620We will be right back here breaking it down with as insider review as you can possibly get on the Senate, on the impeachment trial, and, of course, on the Constitution.