Transcript: The Drafting Board

The full episode transcript for Article II: Inside Impeachment, The Drafting Board.

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Article II: Inside Impeachment

The Drafting Board

Steve Kornacki: From NBC News, this is Article II: Inside Impeachment. I'm Steve Kornacki. Today is Friday, December 6th, and here's what's happening.

Reporter: --the impeachment might have on your legacy?

President Trump: No, not at all. No, not at all--

Voices: Mr. President, Mr. President--

President Trump: It's a hoax, it's a hoax, it's a big, fat hoax.

Reporter: Madam Speaker. Madam Speaker. Madam Speaker--

Speaker Pelosi: Good morning. Good morning. How are you? Did you have a good Thanksgiving?

Voices: Yes.

Reporter: Are we gonna have a good Christmas?

Kornacki: It's official. More than ten weeks after launching the inquiry, the House is drafting Articles of Impeachment against the president. House Speaker Nancy Pelosi made the announcement on Thursday, flanked by six American flags.

Speaker Pelosi: With allegiance to our founders and our heart full of love for America, I am asking our chairman to proceed with Articles of Impeachment. Our founders invoked a firm reliance on divine providence. Democrats, too, are prayerful and we will proceed in a manner worthy of our oath of office to support and defend the Constitution of the United States from all enemies, foreign and domestic.

Kornacki: So, today on Article II, we're asking what articles will the Democrats choose and why. Heidi Przybyla is a correspondent for NBC News, covering politics and government. Heidi, welcome to the show.

Przybyla: Thank you.

Kornacki: We keep talking about all these new phases. It looks like we are entering a new phase here; the phase where there will be actual Articles of Impeachment. Let's just start with a basic question here. When we say Articles of Impeachment, what are we talking about?

Heidi Przybyla: Sure. Articles of Impeachment are the articles set out in the Constitution that are essentially the charges that can be drafted against any public official that initiates an impeachment process. So, the articles themselves don't result in the removal of a president or a high-ranking public official. But they require the Congress then to take further action, bringing those articles before a vote in the House, which then goes to the Senate for a trial.

Kornacki: These are basically proposed charges?

Przybyla: Correct.

Kornacki: The decision of Nancy Pelosi to say publicly this week this is it, this is where we're going, we're drawing up articles, why make the decision now? Why make the pronouncement now, from Pelosi's standpoint?

Przybyla: Couple of reasons. First, the calendar. They wanna have this vote in the House before Christmas. So, there's still other steps that need to be taken. For instance, on Monday, we'll have another hearing where the Intelligence Committee staff will present the findings to Judiciary.

But the drafting is starting now. So, this is triggering a process where Pelosi believes they already have the evidence now that's been laid out. So, they can start the actual drafting to get this all done before Christmas. And if you listen to what she said...

Speaker Pelosi: The facts are uncontested. The president abused his power for his own personal, political benefit at the expense of our national security by withholding military aid and a crucial Oval Office meeting in exchange for an announcement of an investigation into his political rival.

Przybyla: She was urging Judiciary to do it. She was not saying we're actually doing this 'cause that's not her authority. I've attended many news conferences with the speaker. I've seen her speak many times. I've never seen her like this. She was so angry at the end there when she was asked by a member of Sinclair Broadcasting, which is a very far right, conservative outlet, whether she was doing this because she, quote, "Hates the president."

James Rosen: Do you hate the president, Madam Speaker? Because Representative Cohen--

Speaker Pelosi: I don't hate anybody.

James Rosen: Representative Cohen--

Speaker Pelosi: I don't--

Przybyla: This is a speaker who really has been, in many ways, cornered into this by the facts. You can tell that she believes that to her core. But then to be asked, "Are you doing this simply because it's personal?"

Speaker Pelosi: Let me just say this.

Speaker Pelosi: I think the president is a coward when it comes to helping our kids who are afraid of gun violence. I think--

Przybyla: And you heard her kind of bite back there against that reporter, James Rosen.

Speaker Pelosi: However, that's about the election. This is about the Constitution of the United States. I resent your using the word, hate, in a sentence that addresses me. I don't hate anyone. I was raised in a way that is a heart full of love and always prayed for the president. And I still pray for the president. I pray for the president all the time. So, don't mess with me when it comes to words like that.

Przybyla: And I know, based on my own reporting, that she really feels that she has no choice; that this is so completely separate from electoral politics, that this really is about the Constitution. And she laid that out in her answer.

Kornacki: When you say that, the political calculation involves the calendar and wanting to get this done quickly and not necessarily pursue all these legal avenues to compel more testimony and perhaps more evidence, what is behind that calculation? Is there a sense on her part that the longer this goes on, the more disadvantageous it is for Democrats? Is that the calculation?

Przybyla: You know, she definitely feels that there's already so much that's out there that any of this that's going to come out is not going to make this a bipartisan process. It's not going to sway Republicans. If the evidence before them isn't swaying them, then any additional evidence that comes out is unlikely to as well.

"We have the goods." That is a quote I got directly from her, from my sources, Steve, who've been in meetings with her, that the evidence is already so overwhelming. Why would we play into this and allow it to draw people into their political corners, when we've already got the evidence?

Kornacki: So, you alluded to this a minute ago. But the Judiciary Committee would draw up these articles, would debate them, vote on them. What's likely here, in terms of what these articles would be?

Przybyla: Right now, they're looking at at least three different articles. Although, they may be collapsed into two. The first article would be Abuse of Power. And the calculation there is whether you roll in bribery into Abuse of Power. The second would be Contempt of Congress, because this president hasn't complied at all with Congress' ability to conduct oversight over him. And then the third would be Obstruction of Justice. There's a big calculation there as to whether anything related to the Mueller Report goes into that.

Kornacki: Bunch of different things here; let's go through 'em one by one. You mentioned a potential Article of Impeachment involving Abuse of Power and maybe potentially bribery. Explain what the basic charge would be there.

Przybyla: Right. The essence of what the founders defined as Abuse of Power is using the office for your own personal gain, and against the interests of the nation. Our Constitution ensured that there would be checks and balances over the Executive. We didn't want to have another king. We were born in rebellion to the concept of a monarchy. And then you have a president who says literally, "We have an Article II and I can do whatever I want." And Pelosi believes no, you can't.

Speaker Pelosi: No. His wrongdoing strikes at the very heart of our Constitution; a separation of powers; three co-equal branches, each a check and balance on the other.

Przybyla: So, Abuse of Power is, in this sense, the president extorting a foreign power in order to benefit himself personally.

Kornacki: So, then, this added piece of it you mentioned of maybe bribery would be rolled into that, it seems like an interesting question here. Because there's been some reporting that Democrats kind of latched onto the term, bribery, more recently because they see there's some polling that suggests it's a powerful word with voters they're trying to convince. What's gonna go into the decision of whether to actually use the word, bribery, in an Article of Impeachment?

Przybyla: There's a lot that's going into this. It's not just the law. Like you said, it's the politics. And how many articles do they want to have? Is it good to have a lot of articles that are narrow? Is it better to have, you know, something amorphous? Enfold everything into Abuse of Power, which very well they could do that. Bribery is part and parcel, Abuse of Power. In this case, they think it falls under both. But it is something that they're deliberating literally right now.

Kornacki: So, then, let's move to another potential article here. You mentioned Contempt of Congress.

Przybyla: We're movin' on to the second one here, Contempt of Congress, which is blocking Congress' Constitutional authority to conduct oversight. I know from my reporting, speaking with those actually on the Judiciary Committee, that they believe they have a pretty clear-cut case here of Contempt of Congress, at least in the case of Ukraine when the president's lawyer, Pat Cipollone, sent a letter calling the entire investigation of this Congress, of the Judiciary Committee and the Intelligence Committee, quote, "Constitutionally invalid." You actually can hear Jerry Nadler, in his opening testimony, say, "We've never really seen such a clear-cut case of Contempt of Congress here."

Representative Jerry Nadler: Then, as now, this administration's level of obstruction is without precedent. No other president has vowed to, quote, "Fight all of the subpoenas," unquote, as President Trump promised. In the 1974 impeachment proceedings, President Nixon produced dozens of recordings. In 1998, President Clinton physically gave his blood. President Trump, by contrast, has refused to produce a single document and directed every witness not to testify.

Przybyla: They believe that any blanket refusal to cooperate with a congressional oversight and legal subpoenas (which is what we have in this case) is pretty blatant Contempt of Congress.

Kornacki: And I can see the criticism (or the pushback) against that might be what Jonathan Turley, the Republican witness, when those constitutional lawyers were testifying this week, said, which was basically, hey, Democrats, you may have a case on this but you've gotta let these go through the courts.

You've requested subpoenaed documents. The administration is take the position, let the courts rule on it. And if the administration still then is not in compliance, then you have an impeachable case. But you're jumping the gun. That was essentially his criticism of it.

Przybyla: And he was making that based on precedent, not constitutional law. If you listen to what he said, he cited the Nixon impeachment. And so, he was really making a political argument that although Nixon ultimately wasn't impeached (he left office), impeachments that have been successful because the end effect was they got him out of office, right, and in the case of Nixon, that didn't happen until the case went to the courts and he was compelled to comply. He was compelled by the courts to produce documents.

Jonathan Turley: On obstruction, I would encourage you to think about this. In Nixon, it did go to the courts and Nixon lost. And that was the reason Nixon resigned. He resigned a few days after the Supreme Court ruled against him.

Przybyla: And so, Turley's argument there really was, look, if you wanna be successful politically and make this a bipartisan endeavor that results in the removal of a duly elected president, you should go through the courts. But the other constitutional experts pushed back on that. And you saw that in the days following, from other experts on the Constitution, saying there's nothing in there that says you have to go through the courts. On the contrary, impeachment is a political process. And that's the way that the founders designed it.

Kornacki: Heidi, I gotta ask you to stand by for just one second. We'll be right back. All right. Let's move on to the third one, then; the third potential article. And this one's interesting because if I'm understanding it correctly, this brings us back to the Mueller Report; the Mueller investigation. You're talking about Obstruction of Justice. And this would be in relation to Mueller, is that right?

Przybyla: Right. And it could actually have some focused on Ukraine. And this one is, I think, where there is some of the most difficult decisions to be made because, in the Mueller Report, there were ten to 11 different counts of potential obstruction. And this is why this is separate form Contempt of Congress, Steve.

Because those counts of obstruction have nothing to do really with Congress; they have to do with the President of the United States obstructing our law enforcement agencies, which are supposed to be separate under our Constitution. They are not supposed to be acting as his personal legal vehicles. The question there is whether you put a separate obstruction article up and whether you include Ukraine and Russia in that, or just the Russia investigation. So, lots there to still be ironed out.

Kornacki: I think a more basic question here, though, is why would Democrats go back to the well, so to speak, when it comes to Mueller. I mean, this is something that occupied two-plus years of American political life. You had the report. You had his testimony in front of Congress. You had polling at that point that showed country was not on board with impeachment to the degree it now is; not nearly to the degree it now is, after digesting all of the sort of Mueller drama, the Mueller saga. So, why after going through all of that, and why at the end of the Ukraine component of this, would Democrats return to Mueller?

Przybyla: Well, there's actually, believe it or not, a lot of members within the caucus who feel that it's the principle of it. And they believe that this is all for history and for holding a president accountable for history. But there's the politics side of this, which is compelling, that if you put too much in there, you may make it harder for some of these vulnerable Democrats.

Because that impression, as you point to, in the polls, has been formed. It's solidified and it's a reality. So, you have this tug within the caucus, between members who believe that we had this two-year investigation which came back with shocking incidences of Obstruction of Justice. And on principle, those should be included.

Kornacki: You're talking about the political calculations based on the number of articles that are ultimately introduced. And I'm thinking back to the Clinton impeachment, and it seemed that Republicans back then, in impeaching Bill Clinton, kinda threw a lotta things against the wall to see what would stick.

Not every article they introduced ended up passing the House. And there's been some talk right now with Democrats, and these vulnerable members that you're talking about, that perhaps they would throw an array of Articles of Impeachment out there that would allow some of these moderate, potentially vulnerable Democrats to say, hey, I voted against this Article of Impeachment or I voted against that Article of Impeachment. Or they could vote no on one or two of them and still have at least one article pass. Is that part of the thinking at all?

Przybyla: Absolutely. And that's why this is an art of how they draw these up. For instance, let's say you include Ukraine obstruction and Russia obstruction in one article. That can make it difficult for members. But let's say you separate them out and you make it easier for some of these front-line Democrats to say, hey, I voted for Abuse of Power, I voted for Contempt of Congress ('cause those things are so clear-cut), but on that Mueller stuff, I believe that, you know, there wasn't an underlying crime there and so, I voted against that.

And so, these are the decisions that will be made over the next or two as to how this is all formulated. And you better believe that there's gonna be a lotta political calculations as well that go into that, even though you can't really look through the seeing glass at this point and understand where the polling's gonna be on impeachment a year from now.

Kornacki: Heidi Przybyla is an NBC correspondent covering politics and government. Thanks for joining us, Heidi.

Przybyla: Thank you, Steve.

Kornacki: The White House announced today it will not be mounting a defense in the House impeachment inquiry. This was in response to a deadline imposed by the Judiciary Committee for the end of the day, today. House Republicans and their staff will continue to stand in as the president's defense during Monday's hearing. But if Articles of Impeachment do reach the Senate, you can expect a different response from the administration then. White House Press Secretary Hogan Gidley told Fox News today that the president wants his case made fully in that trial.

Hogan Gidley: He wants a trial. He welcomes it. He wants the American people to see the truth--

Fox News Reporter: But are there Republican Senators who are wavering--

Hogan Gidley: But if it's the case, he absolutely wants to bring forward serious witnesses, like the whistleblower, like Adam Schiff, like Hunter and Joe Biden. If they're gonna do this, if the Democrats want this fight, it's something the president is willing to have.

Kornacki: So, we can expect some fireworks if this does indeed reach the Senate. But that likely won't be for another couple of weeks. Article II: Inside Impeachment is produced by Isabel Angel, Max Jacobs, Claire Tighe, Aaron Dalton, Preeti Varathan, Allison Bailey, Adam Noboa and Barbara Raab. Our executive producer is Ellen Frankman. Steve Lickteig is the executive producer of audio. I'm Steve Kornacki. We'll be back on Monday.