what other steps he took to advocate for the release. does he know why vott and the white house apparently disregarded the recommendation? based on public reporting we know, after the press reported the freeze in late august, omb circulated talking points falsely claiming "no action has been taken by omb that would preclude the obligation of these funds before the end of the fiscal year." according to public reporting mckusker responded with an email to duffey to tell him that this, quote, was just not accurate, and that dod had been, quote, consistently conveying that for weeks. due to the public release of these emails and recent reporting we also know that

duffey emailed mccusker there was a clear direction from potus to continue the freeze. mccusker continued to warn that the freeze was having the -- on dod to spend the military aid and the impact would keep growing if the freeze continued. according to recent reports around september 9, after the president's scheme had been exposed and the house had launched its investigations, duffey responded to mccusker's warnings with a formal and length think email he asserted it would be dod's fault, not omb's, if dod was unable to spend funds in time. deputy undersecretary of defense elaine mccusker reportedly

responded, i am speechless. we now know that dod's concerns were well founded. the president's freeze on security aid was illegal. duffey should be called to testify about why dod's repeated warnings went unheeded. what prompted his email that attempted to shift blame to dod and about the fact that the president released the aid only after his scheme was exposed. senators, make no mistake. we have a detailed factual record showing the freeze was president trump's decision. that he did it to pressure ukraine to announce the political investigations he wanted. but president trump's decisions also set off a cascade of

confusion and misdirection within the executive branch. as the president's political appointees carried out his orders, career officials tried to do their jobs, or at the very least not break the law. blair and duffey would help shed more light on how the president's orders were carried out. that is why committees of the house issued subpoenas for both of their testimony. but blair and duffey, as i said earlier, like many other trump officials, refused to appear because the president ordered them not to appear. and i might add, as a former judge, i have never seen anything like this before. where someone is ordered not to appear by one party and the

witnesses just don't appear. the united states senate should not allow the president and his administration to continue to evade accountability based on this ever shifting and ever meritless excuses. we need to hold him accountable because no one is above the law. blair and duffey have valuable testimony to offer. the senate should call upon them to do their duty by issuing this subpoena. mr. chief justice, the house managers reserve the balance of our time for an opportunity to respond to the president's argument.

>> ms. bondi? >> chief justice. honorable senators. just to fact correct a few things. mr. duffey didn't come from a state job. mr. duffey came from deputy chief of staff at dod before he went to omb. big difference there. manager garcia said he failed to appear. well, the house committee would not allow agency counsel to appear with mr. duffey or mr. blair. they would not let agency counsel appear with either of them. office of legal counsel determined, of course, that the exclusion of agency counsel from house proceedings is unconstitutional. it's a pretty basic right. so what did they do? they took no action on the

subpoenas. but now they want you to take action on them. the managers have been telling you all day, the house managers all day, white house is trying to hide from american people what witnesses had to say. they've been saying we want to bury evidence, we want to hide evidence. that hypocrisy is astounding. they've been saying let's not forget why we are here. well we're here tonight because they threw due process fundamental fairness and our constitution out the window in the house proceedings. that's why we're here because they started in the secret bunker hearings where the president and his counsel weren't even allowed to participate when they're trying to impeach him. intel and judiciary committees was a one-sided circumstances. ranking member nunes asked to call witnesses. he explained why in detail.

it was denied by manager schiff. ranking member collins asked to call witnesses. denied by ranking member -- excuse me, by manager nadler. and that's what they call fairness? that's not how our american justice system works, and it's certainly not how our impeachment process is designed by our constitution. the house took no action on the subpoenas issued to mr. duffey and mr. blair because they didn't want a court to tell them that they were trampling on their constitutional rights. so now they want this chamber to do it for them. >> thank you. the house managers have 24 minutes remaining.

>> mr. chief justice, a couple fact checks once again. first of all the complaint is made well, the house wouldn't allow agency counsel. why wouldn't the house allow agency counsel to be present in those secret depositions that you have been hearing so much about? as i mentioned earlier those secret depositions allowed 100 members of the house to participate. there are 100 members of this senate. you could have had that secret deposition right here in the senate floor. but during those depositions members of both parties were given equal time to ask questions of these witnesses. now why not allow an agency counsel? and by the way where did democrats get that rule of no agency counsel during these depositions? we got it from the republicans this was the republican deposition rule. and we can cite you adamant

explanations by trey gowdy and others about how these rules are so important that the depositions not be public, that agency counsel be excluded. and why? well, you'll get a good sense of it when you see the testimony of deputy assistant secretary george kent. kent describes how he's at a meeting with some of the state department lawyers and others and they're talking about the document requests from congress and what are they going to do about these and what documents are responsive and what documents aren't responsive? and the issue comes up of a letter that the state department sent to congress saying you're intimidating the witnesses. and secretary kent testified, no, no, no, the congress wasn't intimidating witnesses. it was the state department that was intimidating witnesses to try to prevent them from testifying. and so my colleagues at the other table say, why aren't you allowing the minders from the

state department to sit next to those witnesses and hear what they have to say in the depositions? we've seen all too much witness intimidation in this investigation to begin with without having an agency minder sitting in on the deposition. and by the way those agency minders don't get to sit in on grand jury interviews either. there is a very good investigative reason that has been used by republicans and democrats who have been adamant about the policy of excluding agency counsel. it was also represented that the intelligence committee and the judiciary committee wouldn't allow the minority to call any witnesses. that's just not true. in fact, fully one-third of the witnesses who appeared in open hearing in our committee were minority chosen witnesses. now, what they ended up having to say was pretty darn incriminating of the president

but nonetheless they chose them. and so this idea, well we had no due process. the fact of the matter is we followed the procedures in the clinton and nixon impeachments. and they can continue to say we didn't but we did. and in some respects we gave even greater due process opportunities here then there, the fact that the president would take no advantage of them doesn't change the fact that they have that opportunity. and finally the claim is made that we trampled on the constitutional rights by daring to subpoena these witnesses. how dare we subpoena administration officials, right? because congress never does that. how dare we do that? how dare we subpoena them? well, the court heard that argument in the case of don

mcgahn. and you should read the judge's opinion. in finding that this claim of absolute immunity has no -- no support, no substance. it would result in a monarchy. it is essentially the judicial equivalent of don't let the door hit you in the backside on the way out, counsel. there's no merit there. and counsel can repeat that argument as often as they like but there's no support in the courts for it. there should be no support for it in this body, not if you want any of your subpoenas in the future to mean anything at all. i yield back. >> the majority leader is recognized. >> chief justice, i have a motion at the desk to table the amendment and i ask for the yays and nays. >> is there a sufficient second? the clerk will call the roll. >> mr. alexander. >> aye.

>> ms. baldwin. >> no. >> mr. brasso. >> aye. >> mr. bennett. >> no. >> they're now voting to -- whether or not to table the motion that was before -- the motion is to -- to have a subpoena two white house budget officials, this is one of several motions that have been put forward by democrats hoping to get documents, hoping to get witnesses. we've heard about how they've put forward a subpoena to get mick mulvaney to testify. these two budget officials. also we have not yet heard them put forward a motion to get bolton, the former national security, john bolton, the former national security adviser to come and testify. that is something we are clearly going to be hearing, probably next. but right now they are doing a roll call vote. and if it goes the way it has

been going, which is along party lines this motion will be tabled because that is part of the strategy for mitch mcconnell to have all of these considered after the house managers have already made their case. i want to go over to cnn's athena jones who is standing by at the capitol. athena, can you explain what is next tonight, what the rest of the night looks like? >> well, anderson, that is a big question here. you just mentioned how we have not heard mention yet of an amendment to subpoena former national security adviser john bolton in this process. and so we would expect that to come up. you'll notice that the amendment they're voting on now was about two aides that they want to have subpoenaed as witnesses so at least that's combining two people. we really don't know how many amendments as minority chuck schumer has under his belt. you remember maybe an hour and a half ago there was an exchange on the floor between the minority leader schumer and

majority leader mcconnell with mitch mcconnell saying maybe we can find a way to move forward more quickly on this, the amendments are similar and the results are going to be similar. and schumer said this is something that's important to us, witnesses and documents are very key so we're going to have a lot of votes. schumer said, you know, we're happy to have these tomorrow but we know anderson that not only majority leader mcconnell but of course the white house, they want to see this trial end quickly. and so they don't really want to have delays. mitch mcconnell said hours ago that they were going to have this vote on this resolution tonight. but, i mean, it's nearing midnight so it's very likely if they do have a vote it's going to be in the early hours of tomorrow. >> athena jones, thank you for joining us. elliott williams, served as a committee counsel. kaitlan collins is with us, and kirsten powers, and mike

shields. davidger aga david, it's going to be fascinating to hear about bolton, clearly where there's the most focus, best known name among the four that democrats would like to see come and testify. >> absolutely. even though democrats, i think, don't really know what bolton will say. >> nobody does. >> but they're hell bent to get it. >> it could play against them. >> it could. end of the day they may wonder -- you would think they'd want to do a quiet deposition before they go over a cliff. >> never ask a question of a witness you don't know what the answer is going to be. they have no idea what the answer will be. >> let me say this. i thought democrats were very smart today on this first day, they went for substance. they didn't go to process. they laid out the case behind the whole effort. and at night, probably one of the biggest audiences, first time the senators have heard all

of that and i thought they were very smart to go for that and for the witnesses. they've created a situation now that it's just going to be a hard call. if you call -- if the republicans now vote to call witnesses they're voting for the unpredictable. but if they don't go for witnesses they've got 70% of the country who thinks they're wrong. that's not a very good choice. >> and illiad, to david's point about what the democrats are doing there's a reason chuck schumer didn't agree, besides animosity, to not just kind of lump all these requests in at once and just get it over with, they want to play it out person by person. >> yes. >> mick mulvaney, these two witnesses, bolton. and they want to get details about the documents that they want from different agencies, and that's what they've been doing, they've been using this time to talk about specifics so it's not just as adam schiff was saying, you know, thousands of documents kind of a generic documents, it's actually specific things, these are why we need this particular

document. >> right and put each of the 53 senate republicans on the record saying that they don't want the documents, that, you know, you can't compare this to 1999 because of the fact that there just haven't been documents here. you made the point earlier, lawyers say don't ask a question you don't know the answer to. get the witnesses. you can't even ask the questions if you don't have the witnesses. so you've been hearing a lot from the democrats today about how you can't have a proceeding. you can't have a trial if you don't have witnesses, and i think the strategy, as david said, is put the republicans on the record and make the case that this actually is a bit of a cover up because you have not heard from, i think, nine subpoenaed agency witnesses, thousands -- tens of thousands of pages of documents that they've requested. and, again, this is far outside of the norm of any past impeachment proceeding that we've seen. there haven't been that many but at least in the past ones you've had. >> from the white house attorneys we've been hearing, we heard from pam bondi, a lot of similar talk we hear from the

white house itself, the same sort of arguments, almost like -- i mean, clearly, they believe the president is going to be watching from time to time. >> yeah, it's the wee hours of the morning in switzerland. >> sorry, let's go back to chuck schumer. classified and confidential materials and i ask that it be read. it's short. >> the clerk will report. >> the senator from new york, mr. schumer, proposes an amendment number 1290. on page two, between lines four and five, insert the following. if during the impeachment trial of donald john trump any party seeks to admit evidence that has not been submitted as part of the record of the house of representatives, and that was subject to a duly authorized subpoena, that party shall also provide the opposing party all the other documents, responsive

to that subpoena, for the purposes of this paragraph. the term duly authorized subpoena includes any subpoena issued pursuant to the impeachment inquiry of the house of representatives. the senate shall take all necessary measures to ensure the proper handling of confidential and classified information in the record. >> the majority leader is recognized. >> mr. chief justice i want to now take a five-minute break. i'd like to ask everybody to stay close to the chamber. we'll go with a hard five minutes. i ask that we stand in recess subject to call to the chair. >> without objections, so ordered. >> okay, so they're going to be taking a five-minute break. before they actually have discussion about this latest effort by chuck schumer. sorry -- >> we're talking about what the president is going to think about how his team is doing today.

how the white house counsel cipollone is going to do, doesn't have a wealth of television experience. eric -- he's been constantly updated, even though he's in davos, he'll be back in washington by 5:00 tomorrow night and of course he really wanted to keep a close eye on all of this so it will be interesting to see how he thinks they're doing. he's going to do a few interviews in the morning. you say jay sekulow channelling the president. pat cipollone raising his voice and calling out adam schiff by name, going after him directly. it will be interesting to see how the president responds to that but also these moderate republicans who of course is their real audience. >> kirsten? >> i think for anybody who's watching this, they're probably wondering what is going on, right, because it's just -- they -- the democrats keep asking for something that they're not going to get and it's pretty clear and i think it's -- there's a political strategy here, right, it's they

want any persuadable voter that's out there to see that -- that the republicans aren't looking for a fair trial, that they aren't doing what's typical in any kind of impeachment, which is to have witnesses and to have documents. and, you know, and to convince people that they're engaging in a cover up. and i think, you know, the republicans are just basically repeating the trump argument, that this is an unfair process in the house and that you can't trust what's been done in the house. >> mike, this is essentially the only power that chuck schumer has at this point to -- to do anything. i mean, he's, you know, this is the -- he has the power to make this go as long as possible tonight. daring the republicans essentially to cut them off and try to adjourn it. >> yeah, and i think i actually agree with what you were saying in terms of how political this is. you're making the same point as well. that's what this is. this is about politics. they're not going to find the president guilty and remove him

from office. that's not going to happen. what does chuck schumer have to do to -- this is about all the evidence and they're really sticking to the facts, i think that's a great tactical thing for them to do to look above politics but the reality is this is about politics, this is a political trial, the majority in the house ran it through politically. the majority in the senate is going to stop it politically. the good thing is the public actually knows that at this point. they've seen enough of this now. there's nothing new. the arguments are literally the exact same things we've been hearing over and over again from all these managers on both sides. >> both things can be true. it can be a political process but the person -- >> democrats don't want to admit that though. >> let me finish. it can be a political process but the person at the center of the process could have violated his constitutional east of office and all of the parties have done with they set out to do, made a factual and legal

case, you don't have to agree, but trump's folks, the president's attorneys have essentially waved their arms and screamed for a day and commented on process and satisfied the president's need to see people showing indignation. >> but the thing is, that is all they have to do is hold their support. they're not trying to win people over. the democrats are actually trying to win people over. >> senator richard blumenthal joins us during this five-minute break. we appreciate you joining us. senator, the revised rules from mcconnell giving three days to each side for opening arguments rather than two days, is that a fair move in your opinion? >> i'm not hearing anything. >> senator blumenthal, it's anderson, can you hear me? we will try to get connection with that. continue back with the panel. >> we were talking about these arguments that you're making and whether or not you think the white house attorneys have been effective but they don't have to

bring a lot of people to their side, all they have to do is hold this wall of support. that's what makes it so interesting when it comes to witnesses. right now they're not sure they'll be able to hold the support. >> senator blumenthal, can you hear me? >> yes. >> what's it like sitting in that room? how do you think it's going right now? >> i am continuing to be really aweed by the sense of history and purpose here. and the real historic task we have ahead of us to uncover the truth, presented to the american people, the house managers are doing a very able job of making the case for these witnesses and documents. and for us to hear them now rather than turning the trial on its head and hearing the evidence after the trial is over and i think that's what the american people want as well, a full, fair proceeding. and that's coming across very clearly to the chamber. and i'm impressed by how

intently all hundred senators are doing. >> senator blumenthal to those who said this is just all about politics, that this is a political process, the votes have been along political lines, no new arguments are being made, what do you say? >> i think there are new arguments in the sense that the detail that has been provided, the masterfully done summaries by the house managers, which really make the case for why these individuals should be called as witnesses, they were in the room. mick mulvaney took the order from the president as he himself has said. we want to know why he did it, when what the president said and of course john bolton tried to talk him out of it. called it a drug deal. we want to hear from robert blair and michael duffey who

executed the scheme. and the documents have made the case. and it should be bipartisan. unfortunately the votes have been, you're absolutely right, along partisan lines. but the country will not react as the senate chamber does on a partisan basis. 70% of the country believes that we should hear the evidence, that we should seek the truth. and investigate, continue to uncover this abuse of power corruptly by the president to serve his own personal interests. and at the heart of this scheme. and it's coming out clearer and clearer, is the illegal abuse of power by the president in holding hostage millions of dollars of taxpayer money simply to favor himself. >> in order to get any witnesses or to get any documents you need at least four republicans. do you believe any minds have actually been changed so far today? >> my colleagues are now on

record. and they will be haunted by history and perhaps by the voters because they're on record against witnesses and documents. i think what they will see by the end of this trial is the peril of continuing on that track. and maybe we will see them change their minds. but i will be very blunt. i'll believe it when i see it. i hope they will be on the right side of history. but so far the indications are they are going to do as senator mcconnell is doing, take their cues from the white house and allow the president to dictate the rules of his own trial. >> if you've got to go, you've got to go, so let me know. it's been stretching now for ten hours in that chamber. all the senators are sitting there. you can't look at your phones, can't do anything other than sit there and listen. what's it been like? do you see people grumbling? you're not allowed to even speak? >> great question, anderson,

because it has been a unique moment and i have been really astonished to see a hundred of my colleagues in the chamber at the same time for hours, literally hours on end. rarely do a group of senators, even a third of that size, attend any event for that long. and yet they are listening intently, without those cell phones. and i am sure that the separation anxiety is severe. but it is a moment that really demands us to put country above personal interests and party. and i hope that we will hear the better angels of our nature and rise, hopefully, and meet that challenge. >> senator blumenthal i know you've got to go back, appreciate your time tonight, thank you very much. >> thank you. >> back now with our legal and political team. david gergen.

>> i wanted to jump in for a moment about the people who came to defend donald trump. i do think he was there very much channelling trump, no question about that and there's a certain confidence factor there. like the guy holding four as with one up his sleeve. they weren't dismissive. they didn't -- the democrats spent hours upon hours compiling these factual scenarios, getting charts and graphs and everything like that. these guys came in and blew it off. you know, the truth is, history may come down on their side. i keep wondering, somebody here may have a good idea about this, did we actually cross an important threshold today, with every vote being 53-47 in favor of the republicans it's going to be much, much tougher now. they have nine or ten things schumer wants to do. they're never going to get all that stuff done, especially at

the end of a trial. they're going to have to be very limited and i wonder if the die is now cast already in a serious way. >> against having witnesses? >> you may get something but it will be -- >> it's not going to be all the witnesses schumer is wanting. >> yeah. >> but it will be interesting to see how it plays out with the fact that the resolution came out, if you saw mcconnell issued it last night and then pulled it back this morning because i think it was portman and collins had raised concerns about it and the question is, is that a crack in the armor or the cynical view that might be he just put it out there knowing that he would have gotten opposition from susan collins. >> it's a give to susan collins or anybody who might have had some concerns. >> he's controlling his caucus. >> you think he knew in advance he would play that card, show his -- >> mike, you think that. >> look, mcconnell is a master at this and he knows that he has to give some room to some senators, and that's what his job is. if he takes the hardest line possible he's now drawn a line where he can move from to give

them some room without having that room be something that's damaging, artful thing, he's the best there is at it. >> give a little to get a little. >> what's interesting, why did they push for this two-daytime frame of 24 hours to make the arguments. we're told it was the white house who initially pushed for that. they feared if we're going late into the night they could potentially not start their arguments, until saturday and then it would be broken up by sunday and they'd not be able to make their arguments in consecutive periods. coverage wouldn't be as strong and now it looks, if democrats take up their full time, that's what the white house will be working with. making arguments saturday, monday and tuesday. instead of what they hoped for. >> he can tell the white house, well, i did what i tried to do. i put it out there exactly the way that you wanted it. maybe knowing full well that he was going to get pushback from his members and he was going to have to capitulate and that was going to be good for them. >> the senate is about to take up an amendment and i'm going to

read it. it would require that if during the impeachment trial donald j. trump, any parties seeks to admit evidence that's not been submitted as part of the record of the house of representatives, that party shall also provide the opposing party all other documents responsive to that subpoena. what does that -- >> i think it's -- look, i think they're just trying to get documents in. they're looking at various ways to get documents in. we're talking a lot about the witnesses, and how much we want to hear from witnesses but at the end of the day documents are critical as well. >> that was one of the gives that mcconnell gave this morning, which was instead of initially he had said all the stuff the house evidence is not automatically going to be admitted. he's now changed that and saying somebody can object to it being admitted but otherwise it will be admitted which is really -- >> there's one -- you would know better than me on this but there was an issue that came up

before, the house of representatives sent over an official document that's sort of the case and then some of the managers started talking about things that weren't in it. there was a question raised that should the chief justice not rule that out of order, because wait a minute you're talking about lev parnas and they're sort of going off on their political arguments that aren't a part of the case that the house democrats put together at the heart of this problem. the house democrats created a case without calling these witnesses or getting these documents. they claim they had a bunch of reasons but the fact is they didn't. they didn't do it. >> there's a big reason the president didn't allow them. >> schiff was just arguing -- but they could have gone to court. >> oh, come on. >> schiff was just arguing, he was bragging, we went to court over don mcgahn and we won in court. interesting, amazing tactic. the house had the responsibility to put this together. you said this was different than clinton. i worked for newt gingrich during the clinton impeachment. mr. schumer argued during the clinton impeachment against witnesses and against new documents because it had been handled in the house who had the

responsibility for it. my point is, back to this thing, i think that this may be a way for schumer to try and say we want to talk about things that weren't -- listen, as long as we share it with both people we can talk about it. >> i don't want to play the game of talking about who said what in 1999. that is a game that every republican -- >> but both managers have done that tonight. both sides have actually -- >> the chair of the senate judiciary committee. >> can i point out that argument about they should go to the courts to resolve this, that actually contradicts what the doj has been arguing when they've been saying they're trying to essentially avoid these subpoenas. doj attorneys have been saying it's not up to the courts, they should work it out on their own and that's not what jay sekulow and the president's other attorneys were arguing. they were saying you would have let the courts resolve it. but that's not what we've been seeing argued by doj attorneys. >> you can't compare 1999 to now, given the fact president

clinton didn't walk in the door saying i'm not going to comply with this. >> ken starr had eight other criminal referrals. >> senator mcconnell said back in 199 at the clinton impeachment trial. this is to mike's point, both sides have been doing this sort of stuff. do we have that? >> my view was that we were entitled to witnesses. i voted for live witnesses myself. i voted for the one live witness the house asked for and i voted to allow the videotaping of the witnesses that they asked for. in addition to that we had, as the democrats continually reminded us, a mountain of evidence in the independent counsel's report. i think we had enough information to make a decision. i think it was overwhelmingly clear what happened here. >> again, different case, different time, different argument. >> yeah, look, both sides have switched. and the public that doesn't have their feet in concrete. partisans on each side, sees

that for what it is. these are all politicians, they switch sides when it's convenient. this is all about the election. it's a big partisan thing about the election. >> the democrats didn't really switch sides, there were witnesses in the house. it's not the same thing. there aren't witnesses this time. it's a different situation and i don't agree you should have to get a court order to get the president to comply. >> mike, do you agree that the strategy by the trump administration of just a blanket, non-cooperation is different than 1999, is different than what has happened where ronald reagan telling people just to go up and testify. >> i think there are some circumstances that are different. it's a successful strategy. this is a legal strategy and every defense lawyer will tell you that every -- their job is to defend their client and come up with things until someone tells them they can't do it, to defend their client. >> any successful governing strategy, if the house has a role here, congress has a role here. >> there's always -- there were

things that the obama administration fought over with republicans in congress. >> those were specific things. >> no presidential administration in history, obama, clinton, bush, carter, whatever has taken the position, the blanket position that number one executive privilege applies to every single word that's ever said. >> even though it's never been invoked. >> go ahead. >> well, the other point is the cover ups don't work. ultimately they come unravelled. bolton's going to write a book. you know, do you think he's going to leave some stuff out that would really help to sell the book and he probably knows things that won't be helpful to the president, there's probably a good chance of that. >> the question is though -- >> in the short term. cover ups can work in the short term and in the long term they tend not the to work. >> bolton, i find fascinating. democrats are putting a lot of faith in thinking they know what he will see because he called it a drug deal.

cynical view, who is he doing this book for, is he wanting mass audiences to buy this or a conservative audience to buy this, that he's going to have a perch on fox news as the savior of the president who wanted to testify, wasn't able to and then wrote a book. >> conservatives, writing a good book you've got a good chance to be number one. >> well, yeah. >> when he talked about the drug deal he said mulvaney and sondland. he didn't say the president. i think people are hesitant to say he's ready to spill the beans on the president. some people have said that mick mulvaney and mike pompeo could be potential targets for john bolton. >> another thing on the witnesses though that shows a lack of seriousness for the republicans, this kind of retaliatory witness, this idea that if you get your witnesses then we're going to bring in people that have really nothing to do with this, we're going to bring in hunter biden that has nothing to do with the case that they're actually arguing. >> yeah, i think that that's a -- >> that's not how it's supposed to be.

you're supposed to bring people in that can add something germane to the case at hand. >> it's kind of punk rock. a recognition of the farce of the entire thing. >> no. >> so the democrats try to wear this mantle of a sort of being respectful when the entire thing is political from the very beginning on their behalf which is why senator schumer knows he's going to lose all these things and he wants to get every senator on record as you stated. >> by the way, what i love, when i look at you, i think -- you are representing punk rock here back from the mud club. they just got called to order. five-minute break, it was about a 20-minute break but being called to order. they're now going to be starting to talk about this move put forward by schumer. let's listen in. >> favor. >> favor. mr. cipollone. >> mr. chief justice, we are opposed. >> i thought that would be the case. two hours for argument. equally divided. you may proceed first.

>> thank you. senators the majority leader amended his resolution to allow the admission of the house record into evidence, though the resolution leaves the record subject to objections. but there is a gaping hole, another gaping hole in the resolution. the resolution would allow the president to cherry pick documents he has refused to produce to the house, and attempt to admit them into evidence here. that would enable the president to use his obstruction not only as a shield to his misconduct but also as a sword in his defense. that would be patently unfair and wholly improper. it must not be permitted and that is what the schumer amendment addresses. the amendment addresses that issue by providing that if any party seeks to admit for the first time here information that was previously subject to

subpoena, that party must do a simple and fair thing. it must provide the opposing party all of the other documents responsive to the subpoena. that is how the law works in america. it is called the rule of completeness. when a selective introduction of evidence distorts facts or sews confusion in a trial it is a solution. documents that provide a complete picture can be produced to -- the rule of completeness is rooted in the common sense of evidentiary principle that a fair trial does not -- to produce evidence in a way that would mislead fact finders. the senators should embrace it as a rule for this trial and the amendment does just that. this amendment does not in any way limit the evidence the president may introduce during his trial. he should be able to defend himself against the charges against him as every defendant has the right to do around the

country. but this amendment does make sure that he does it in a fair way, and that his obstruction cannot be used as a weapon. it is an amendment based on simple fairness and it will help the senate and the american people get to the truth. past managers are not afraid of the evidence, whatever it may be. we want an open process designed to get to the truth no matter whether it helps or hurts our case. that is what the senate should want and that is what the american people certainly want. this amendment helps that process of getting more evidence so we can get to the truth and we urge you to vote for it. the amendment also addresses another omission in the majority leader's resolution by providing for the proper handling of confidential and classified information for the record. this amendment seeks to balance the public's interest in transparency with the importance of protecting limited sensitive information bearing directly on the case you are trying. as for confidential information some of the evidence in this case includes records of phone

calls. they establish important patterns of conduct as we explained in the ukraine impeachment report. but the original phone records including a great deal of information and context should be able for this body to review if needed in a confidential setting. it contains sensitive information concerning individuals not at issue in this trial and subjects them to intrusions of privacy. the senate has capacity to handle it. the amendment allow it is privacy interests of many individuals to be protected while allowing senators access to the full record. as for the classified information that this amendment addresses, there may be several very relevant classified documents. let me just highlight one in particular. it involves the testimony of the vice president's national security aid jennifer williams. and it concerns a conversation between the vice president and the president of ukraine. and the house managers believe that it would be of value to

this body to see in trying the case. let me start by saying that we have twice requested that the vice president declassify this document. we have reviewed it and there's no basis to keep it classified. the vice president has not responded. we can only conclude this is an additional effort by the president to conceal wrongdoing from the public. but as it stands now it remains classified. it must be handled like any other classified document by this body and the amendment would allow that. but let me just take a moment to go further. the public should see that. supplemental testimony as well. that supplemental testimony, that classified testimony was added to the record by the vice president's aide because she believed i think on further reflection that it would shed additional light than what she had said publicly and you should see it and you should evaluate it for what it has to say but

what's more so should the american people and so i would urge not only that you support this amendment to make sure that you can handle the classified information, there's a mechanism for it, and the personally identifiable information that need not be public but also information that is improperly classified, that bears and sheds light on your decision should be accessible to you and should be accessible to the american people. and i reserve the balance of our time. >> mr. cipollone? >> thank you, mr. chief justice. mr. philbin and then mr. sekulow. >> mr. philbin. >> mr. chief justice, members of the senate, the president opposes this amendment and i can be brief in explaining why. this amendment would say that any subpoena that was issued

pursuant to the house's impeachment inquiry, that's any subpoena that they issued at all, becomes defined as a duly authorized subpoena for purposes of this amendment. and as we've explained several times today becaus the house began this inquiry without taking a vote, it never authorized any of its committees to issue subpoenas pursuant to the impeachment power. the first 23 subpoenas at a minimum that the house committees issued were all unauthorized and that is why the trump administration did not respond to them and did not comply with them. that was explained in a letter of october 18th from white house counsel pat cipollone to chairman schiff and others. that is a legal infirmity in those subpoenas. there has never been an impeachment inquiry initiated by the house of representatives against a president of the united states without it being authorized by a vote of the full house. and this is a principle that the

supreme court has made clear, that no committee of congress can exercise authority assigned by the constitution to the chamber itself, to the house or the senate, without being delegated that authority by the house or the senate. and in roomly the court explained that determining the validity of a subpoena requires "construing the scope of the authority which the house of representatives gave to the committee." so this is a legal issue and infirmity in those subpoenas and this amendment proposes to do away with that legal infirmity by defining all subpoenas as duly authorized. we do not support that amendment. in addition, i want to respond to chairman schiff's rule of completeness. this is not about the rule of completeness. the rule of completeness has to do with when a particular document or piece of evidence is misleading in itself, that document, there's something specific about it, that there's another response on the email

chain, something like that, that particular document has some specific thing attached to it, that that should also come into evidence. since all evidentiary motions are being observed, evidentiary arguments can be made, the rule of completeness can be argued. there's no need for that to do this amendment because this amendment doesn't have anything to do with the rule of completeness. with that i'll yield the remainder of my time to mr. sekulow. >> thank you. mr. chief justice, members of the senate, i'll be brief. this resolution, which the amendment which we oppose, and mr. philbin just said, in essence, an unconstitutional attempt to cure a defect, a defect in their own proceeding. to be clear we are reserving our objections as it relates to hearsay, which is what the record primarily consists of. i want to respond briefly to what manager schiff said regardings the proceedings in the house and lack of agency

counsel. he said it's much like a grand jury, he best be glad and the members of his committee best be glad it's not like a grand jury. if it was a garage and information was leaked, which they could be subject to felony. i want to be clear, utilizing this amendment to cure a constitutional defect, that's what this is. is exactly what we have been arguing for about almost eleven hours. it's changing the rules. it's different rules. i can't determine if we are dealing with a trial, a pretrial motion, we have spent eleven hours arguing about something that we'll be arguing again next week. the idea that you can cure in three paragraphs constitutional defects doesn't pass constitutional muster. we yield the rest of our time.

>> house managers have 54 minutes remaining. >> first of all, counsel makes the argument once again that the subpoenas the president gets to decide which are valid and invalid. any subpoena the president doesn't like he may declare invalid and that's the end of the story. therefore it is invalid and no documents are required and no witnesses need show up and therefore you don't need to consider whether the president should be able to gain the system by showing you a handful of documents to mislead you. and deprive you of seeing all documents relevant to the same subject. that's the argument. president didn't like the way the subpoenas were issued even the court already ruled on this issue and said no, mr. president you don't get to decide whether

a subpoena is valid or not. in an impeachment proceeding. that's the sole responsibility of the house. no, i guess they would suggest you the president would never mislead you about documents. if they seek to introduce something you can be sure that document tells the complete truth. we already know you can place no such reliance on the president. how do we know this? you have already seen it. look what they did in response to the freedom of information act request. they blacked out all the incriminating information. they blacked out the we can't represent anymore that we'll be able to spend this money in time. we can't represent that we're not going to be in violation of the law the impoundment act. they redact that. is that what you want in the trial? for them to be to introduce one part offen e-mail chain and not

the rest? you want to be able to have a situation with the president who with held documents from you can introduce a document that suggests a benign explanation but not the reply that confirms the corrupt explanation. because that's what we're talking about here. now, they clothe this in the argument we don't think they were dually authorized subpoenas. we are merely categoryizing the universe of documents to turn over if they want selective documents. unduly if they will. the point is the documents called for shouldn't be cherry picked. by a white house that is already shown such a deliberate intent to deceive. finally, counsel says they can't tell whether we're dealing with a trial here.

neither can we. if they're confused they are confused for a good reason. this doesn't look like a trial they're used to and people are confused too. they would think if this was a trial there would be no debate about whether the party with the burden of proof can call witnesses. of course they can. of course they can. the defendant doesn't get to decide who the prosecution calls as a witness. if you are confused so are the public. they want this to look like a regular trial. it should. that's the history of the body. i know it's late i have to tell you it doesn't have to be late. we don't control the schedule here. we're not deciding we want to carry on through the evening. we don't get to decide the schedule. there's a reason why we are still here at five till

midnight. there's a reason why. that's because they don't want the american people to see what's going on here. they're hoping people are asleep. a lot of people are. all over the country. because it's midnight. now maybe in my state of california people are awake and watching. but is this really what we should be doing when we're dding the fate of a presidency? doing this in the midnight hour? i started out the day asking whether there could be a fair trial. and expressing the skepticism i think the country feels about whether that's possible. how much they want to believe this is possible.

but i have to say, watching now at midnight this effort to hide this in the dead of night cannot be encouraging to them about whether there will be a fair trial. i yield back. >> mr. chief justice. >> majority leader is recognized. >> i have a motion at the desk to table the amendment. >> is there a sufficient second? >> the clerk will call the role. >> mr. alexander. ms. baldwin. mr. bennett. mr. black burn. mr. blunt. >> all right this is something that should be familiar now. during the marathon process. i'm chris cuomo. welcome to a special hour of

"prime time." we're in a special period in our collective history. this is the first day of the trial for the articles of impeachment of president trump. what this is basically been as a fight over the rules. and the democrats were asked to bundle them in to one big motion. they said no. each one matters so much and they believe the republicans want to hide this and that's why we're doing it in the midnight hour so they want them individual, they want them known and recorded as such. this is something that's become somewhat familiar. a quorum vote. taking attendance. on one level it has a making sure everybody who is there has to be there. this is very unusual. those senators are in the room without access to devices. none of this. no game playing. and they're supposed to be

paying attention the entire time. which has been the entire day. since everybody can remember. what will they do during a call. a chance to talk. is mr. mcconnell talking to schumer right now. are they negotiating. that's what we'll be paying attention to. the reporters have been spelled. because you can't burn that much energy all the time. the rest of us are here holding down the shop until this finds its completion. how long will that be? certainly we'll go past the couple minutes to midnight. it could be an hour or two. after that. that maybe discussed right now. let me bring in andrew mccabe. also pedigree with the fbi law professor at yale. thank you both. andrew, that's what they're doing now. the hope is -- not just because it's late. this is history.

we're lucky to be here and witness to it. and helping the american people through it. the idea of bundling the amendments. sounds great from an efficiency standpoint. this is about votes. not administration. why does it matter for the democrats to do it each tactically? >> the democrats have executed this strategy over the better part of the day. they are trying to essentially draw a line underneath each and every one of the antidepressants. they want all those senators and the american public who are watching to see how strongly they feel about each witness they want to appear, and each one of the bundles of documents they believe should have been turned over and asking the senate to subpoena in the trial. the republicans would prefer to bunch those together and dispose

of it. >> each has been down party line. another obvious reason this isn't about the law. this is the practice of politics. this is the minority leader his only chance to tactically keep coming at the republicans. not so much as a point of annoyance. but of relentlessness. you're in the going to get a pass. you'll be confront ld with the facts and confronted with the fact of evasion. the reason we don't have these things, these people, unlike in the clinton impeachment, where ken star of course conducted a multiple years long with lots of staff, a complete record where they talked to dozens of possible people. the outer fringes of relevance. that's denied. the witnesses in clinton the three people picked were already part of the record. how important is it to fight the fight?