Transcript: End of an Impasse

The full episode transcript for Article II: Inside Impeachment, End of an Impasse.
Image: U.S. House Speaker Nancy Pelosi (D-CA) speaks at the Wall Street Journal CEO Conference
House Speaker Nancy Pelosi.Al Drago / Reuters

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Article II: Inside Impeachment

The End of an Impasse

Steve Kornacki: From NBC News, this is Article II, Inside Impeachment. I'm Steve Kornacki. Today is Monday, January 13th. And here's what's happening.

Unidentified Male Speaker: It's a key week for impeachment. Nearly a month after the House voted to impeach President Trump, House Speaker Nancy Pelosi is expected to send over the articles of impeachment to the Senate, where a trial could begin as soon as this coming week or potentially next week.

Steve Kornacki: It looks like we finally have movement on the Senate impeachment trial of President Trump.

Nancy Pelosi: We have confidence in our case, that it is impeachable. And this president is impeached for life, regardless of any gamesmanship on the part of Mitch McConnell.

Unidentified Male Speaker: Have you reached out to Pelosi? Have you spoken at all?

Mitch McConnell: Not really.

Unidentified Male Speaker: Not really?

Steve Kornacki: But after weeks of this standoff between House Speaker Nancy Pelosi and Senate Majority Leader Mitch McConnell, has anything really changed?

Unidentified Male Speaker: What do you think, now that this is actually about to get into your hands?

Mitch McConnell: Well, we've been asked to get started for the last, how many weeks has it been now? We will get about it as soon as we can.

Steve Kornacki: So today in Article II we'll explore why this impasse appears to have ended and what it means for the next steps in the impeachment timeline.

Steve Kornacki: Garrett Haake is MSNBC Washington Correspondent. Garrett, welcome back to the show.

Garrett Haake: Thank you, Steve.

Steve Kornacki: So we have been talking a lot about when this standoff between the House and the Senate would end. It looks like it is now reaching its end. Let's just talk some basic logistics here. Two important pieces to this. Number one, transmitting the articles, sending the articles of impeachment from the House to the Senate, when do we think that's gonna happen?

Garrett Haake: It could happen as early as Tuesday night. Nancy Pelosi said she wants to meet with her caucus. They have a regular morning meeting the first day they come back into session. That'll be Tuesday morning. And then it's just a matter of putting it on the floor. This is not like a regular bill.

They don't have to go through the rules committee. It doesn't have to be debated at any lower committee. Once they make the decision to put this decision on the floor, it's a pretty quick debate. They could vote on it as early as Tuesday.

Steve Kornacki: So when you say vote on it, the other outstanding question here is not just transmitting the articles, but picking the impeachment managers. Does that happen at the same time?

Garrett Haake: They don't actually have to vote on anything in terms of transmitting the articles or voting on the articles. Again, that's done. What they'll actually vote on is naming the impeachment managers. That's something of a trigger in Congress. Once those impeachment managers are named, that starts the process of handing things over to the Senate. So that's the actual formal legislative element to what they'll be doing this week.

Steve Kornacki: So these impeachment managers, these are the folks who are gonna prosecute the case, that the House is charging the president with high crimes. They appoint prosecutors. They call them managers. I think we all remember now from the videos we've been seeing. Lindsey Graham, he was an impeachment manager--

Garrett Haake: Right.

Steve Kornacki: He was in the House, you know, 20-something years ago. So there's been some speculation, who the Democrats might tap here to be impeachment managers. Adam Schiff, you know, we saw him in those intelligence committee hearings. His name comes up. Jerry Nadler, the judiciary committee chairman. What is your sense? Is there a short list that's kind of emerged, of names we might be likely to see here?

Garrett Haake: Well, we know a couple things. First, in the Clinton impeachment there were 13 managers. The general feeling on Capitol Hill now is that was too many. Democrats now will probably pick a little bit fewer, somewhere between four and ten managers.

You named a couple people on my short list for sure. Adam Schiff, who's been handling this process from day one, I think will almost certainly be a manager. Jerry Nadler, chairman of the judiciary committee, has been less involved in the early-stage process of this. But he's almost certainly on the list.

The other person who I think is probably a very likely choice is Jamie Raskin, the congressman from Maryland. Remember, he's a constitutional scholar in his own right, taught constitutional law. He got tapped to present to the rules committee when Jerry Nadler had to leave for a family emergency.

Jamie Raskin: The president's aggressive and unprecedented resistance to congressional subpoenas, for witnesses and documents, is blatantly and dangerously unconstitutional.

Garrett Haake: So he's someone who's been dealing with this in a very hands-on way. A lot will be riding on this. And you want folks who are gonna be convincing, both to the senators, who will have to make decisions along with way, and to the public at large.

Steve Kornacki: So Garrett, once these articles are formally sent over to the Senate, what's the time lapse then between then and the trial actually starting?

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Garrett Haake: Well, there are a couple things that happen. First, it does formally trigger this process in the Senate almost immediately. The Senate has to start working on this the very next day they're in session. But that does mean what we'll see will look like what you and I think of as a trial.

There's a couple things that have to happen. The senators have to get sworn in and take an oath as jurors. The chief justice has to get sworn in himself. He'll be calling the shots, essentially presiding over the trial, in the seat that's normally reserved for the president of the Senate. That's Mike Pence on big nights.

And then there's just some logistic things that have to be taken care of. They're adding cameras to the Senate chamber, for example, to make it a little bit more television-friendly. They have to set up office space around the chamber, for the managers, for the president's attorneys.

All of that work, plus just preparing the arguments for opening arguments, could take a couple days. If I were a betting person, I would say that opening arguments in the trial probably don't start until next week, just because everyone involved is gonna need some time to get their ducks in a row.

Steve Kornacki: Yeah, I was looking back at the timeline for the Bill Clinton impeachment, really the only modern precedent we have for something like this. And it struck me. It was January 7th, 1999 was the official start of the Senate trial, when the chief justice came in, was sworn in, swore all the senators in.

It wasn't until a full week after that, January 14th, '99 that they actually began the opening arguments. And then the opening arguments took three days for each side. It basically took a week to get through the opening arguments. So from the formal beginning of the trial, until the end of opening arguments, was basically a two-week span. Is that plausible it'll happen again here?

Garrett Haake: I think some of this will move faster. You will see some period of time of preparation. But with a smaller team, and folks like the aforementioned, Adam Schiff, Jerry Nadler, who have probably been assuming that they're going to be managers, hopefully have done some of this homework on the front end.

So you would think that they won't necessarily need to take quite as long of a break before they get started. But once they do get started, things could move about that same pace. If this impeachment follows roughly the same rules that Bill Clinton's impeachment followed, and there's every indication that it will, both sides (that's the impeachment managers and then the president's defense team) will get 24 hours to present their case, broken up over as much as days as that takes.

So you might have three or four days of opening arguments from the managers, a similar amount of time from the White House, before we get to the other parts of the trial, senators asking questions, and then the big question about witnesses or dismissal.

Steve Kornacki: Garrett, just hang tight for one second. We'll be right back.

Steve Kornacki: In terms of the strategy we say Democrats employed here, in withholding these articles, the talk had been that this would create such pressure on Republican senators and then, by extension, on Mitch McConnell, the majority leader, that he would be forced to give concessions. Given that Democrats did not come up with any of those concessions, and aren't going into this trial with any of what they sought, is it fair to say that was an unsuccessful ploy by Democrats, withholding those articles?

Garrett Haake: Well, Democrats would argue that what they were able to accomplish was they forced several weeks of debate on what would constitute a fair trial. And during the course of that debate, they did get new information out into the public sphere. Remember, there was that big New York Times report that came out over the holiday break.

There were a number of Freedom of Information Act requests that came through, that included emails from figures at the Office of Management and Budget, who were involved in some of these decisions. And then of course there was the statement from John Bolton, saying that he would potentially be willing to testify in a Senate trial, if he gets subpoenaed.

So Democrats will try to claim some of those things as victory. But on the big picture of forcing Republican senators, of forcing Mitch McConnell to crack under pressure and adopt rules more favorable to them, they didn't get the job done.

Mitch McConnell: Well, I'm glad the speaker finally realized she never had any to leverage in the first place to dictate Senate procedure to senators and is giving in to bipartisan pressure. In terms of influencing Senate proceedings, this strange gambit has achieved absolutely nothing.

Steve Kornacki: So Garrett, Nancy Pelosi withheld these articles, withheld them for several weeks. Why did she break now?

Garrett Haake: This is about as good of a moment as they're gonna get. At some point you have to move forward with the trial. It's clear that Mitch McConnell, his strategic patience was going to stay in place here. I mean, this is a guy who sat on a Supreme Court nomination all the way through a presidential election.

So the time came to get this going. And I have to wonder if the fact that the presidential election is coming up is not a small part of this too. There's a bunch of senators who have places they'd rather be than sitting in Washington, dealing with an impeachment trial in February or March or April.

Steve Kornacki: One of our colleagues here, NBC's Jon Allen, made an argument in a piece that's out today on the question of witnesses. He was arguing that Democrats might be better off without impeachment witnesses. Because he said that process could put more attention on Joe Biden, on Hunter Biden, and that it would be unlikely that John Bolton, in his view, would ultimately turn on the president. That idea that in Democrats pushing witnesses, you might get sort of a counter push from Republicans for Hunter Biden, for Joe Biden, for something along those lines. Is that a risk for Democrats here?

Garrett Haake: I suppose so. Remember, if there's a vote for witnesses, it won't just be a straight up or down, "Shall we have witnesses?" It'll be more specific, about who gets called and why they need to be called. So Republicans would need to come up with 51 votes for calling a Joe Biden or a Hunter Biden to come testify.

And it's not entirely clear that they could do that. And then I suppose, and Jonathan raises this a little bit in his piece, the broader existential question, which is, if you think you're highly unlikely to remove this president from office, and I think anybody who's followed this impeachment thus far can agree that it's highly unlikely the president gets removed, which you rather have what you consider to be a fair trial and still fall short?

Or would you, knowing you are going to fall short anyway, rather be able to fall short and say, "This was a cover-up. They didn't allow a fair trial. The facts were hidden." Politically, which one of those arguments would you rather make? And it's an interesting question for Democratic strategists.

Steve Kornacki: Seems like it's an interesting question too for some Republican members who are up for reelection, some Republican senators who are gonna be running in 2020, potentially in difficult races, who are going to face this vote (it looks like) probably a couple weeks from now on whether to have witnesses at this trial.

Susan Collins from Maine, you know, running for reelection this year, in a state that Hillary Clinton won in 2016. She's been talking about trying to get senators together, to get witnesses incorporated into this trial. Democrats would need four Republicans basically to actually go forward and do that in a vote. How do you look at the likelihood of that?

Garrett Haake: I think it's gonna be tough. I can count to three Republicans votes potentially for some of these witnesses. But I have a really hard time getting the fourth. Collins has been pretty clear on this. She would like to hear from some witnesses.

She would like to hear from John Bolton. She likes to be in the mix. She involves herself in a lot of these issues, where she thinks she might be a broker between the two sides. Mitt Romney has told me multiple times that he wants to hear from John Bolton and perhaps others.

Mitt Romney: The Clinton model was that you had the opening arguments and then there was a vote on witnesses. And I'd like to hear from John Bolton. We'll see if there's anybody else.

Garrett Haake: So that's two. And Lisa Murkowski has raise a lot of questions along the way about the way that the impeachment has been conducting, including Mitch McConnell's close work with the White House on this. She says she's uncomfortable about that. A lot of folks have read that as that she might be witness curious, let's say.

But I have a much harder time figuring out who the fourth vote will be. You know, a lot of folks point to Republican senators in tough reelection races, like you were alluding to Thom Tillis in North Carolina. Cory Gardner in Colorado. Martha McSally in Arizona.

But as I cover those senators, and as I watch their public statements and their interviews on Fox and things like that, to me they all appear to have made the calculation that their best play is to hug the president as tightly as they can and hold on tight.

Steve Kornacki: Right. Yeah, I mean, 'cause we talk so much about they're vulnerable in the general election. We forget sometimes I think that they have to get through primaries to even--

Garrett Haake: Well, and Steve, I think that even as a general election strategy, you might just see someone like Thom Tillis saying, "You know what? My best strategy is to excite the hell out of the Trump base and hope that there's enough of those folks who will come out and vote for me."

Unidentified Male Speaker: This is clearly a political exercise. And they shouldn't be surprised when Mitch McConnell says, "We'll deal with it in those terms when it comes to the Senate." I think that Schumer will probably put forth a motion to subpoena certain witnesses that, frankly, they should've done the work in the House. And I'll be voting against those, as will my Republican colleagues. And we can move onto the final vote on the articles.

Garrett Haake: Do you risk irritating your most vocal Republican supporters in an effort to win over some Democrats or independents who probably were gonna vote against you anyway? I mean, there's a political calculation there too, even beyond the primary.

Steve Kornacki: Here's the other wild card, when we talk about the calendar right now. The prospect of this trial getting underway in the next week or two, lasting a couple weeks. February 3rd, the Iowa caucuses are on February 3rd. Bernie Sanders hopes to win the Iowa Caucuses. Elizabeth Warren hopes to win the Iowa caucuses. Amy Klobuchar hopes to win the Iowa caucuses.

They are all members of the U.S. Senate. They would all be jurors in this trial. They would all have to be back in the United States Senate, serving as jurors in this trial, while that home stretch of the Iowa campaign plays out. There is a prospect here of three leading presidential candidates being largely sidelined at a crucial time for them.

Garrett Haake: That's right. And all of those senators are trying to work out a plan for it. Because if, again, they follow the Clinton model, that's six days a week in Washington, sitting in the Senate chamber all afternoon. Some of these senators have pretty robust plans for this.

Bernie Sanders campaign has said they will fly him on a private plane, back and forth to Iowa every night when he gets done. They will do events in the early states to continue trying to campaign. Also look for a lot of these candidates to make use of their best surrogates.

Expect to see AOC out there campaigning for Sanders. Expect to see Elizabeth Warren sending Julian Castro back out to Iowa to campaign for her. Expect to see efforts at video conferencing, anything they can do to try to keep campaigning. Because I've done the math. I've looked at the calendar.

I've tried to game this out. I don't see any way that this trial gets done before maybe that last Saturday before the caucuses. I think that's the earliest I could imagine the trial finishing. And that's if everything starts on time and goes fast. And there aren't witnesses. Maybe they're done that Saturday. But almost certainly, when I look at the trial and I look at the calendar, I see this going through Iowa and, by the way, Steve, through the State of the Union, which is the very next day.

Steve Kornacki: And of course New Hampshire the next week. I guess no guarantee it would even be done by the New Hampshire primary--

Garrett Haake: Not if they're calling witnesses.

Steve Kornacki: And the other piece of this too, it occurs to me, is not only are these senators, these presidential candidates, stuck in Washington, stuck in the Senate. Part of being a juror is they can't talk.

Garrett Haake: That's right. This is not the kind of thing like the Kavanaugh hearing, for example, where senators got a chance to show off their knowledge, show off their ability with, you know, difficult questions and really tough on-camera moments.

The senators don't get to speak during the trial, not during the presentation by the managers or the presentation by the defense. And in fact, again, if they follow the Clinton rules, even the questioning of the managers and of the president's defense team, in that case senators wrote down their questions and submitted them to the chief justice. They didn't even get a chance to read their questions out loud. So it will be very hard for senators in the running to be president to have a made-for-TV moment during the impeachment trial, if they were looking for one.

Steve Kornacki: You've got an impeachment, a presidential election, a state of the union. We've got all sorts of things colliding right now in politics. Truly an extraordinary time. Garrett Haake, MSNBC Washington correspondent. Garrett, really appreciate you joining us.

Garrett Haake: Thanks, Steve.

Steve Kornacki: As Garrett mentioned, tomorrow House Speaker Nancy Pelosi meets with her Democratic caucus. She says she'll be discussing next steps for impeachment with her colleagues. We'll be keeping an eye and an ear on that meeting.

Steve Kornacki: 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 Wednesday.