coverage and analysis continue here on fox news channel. i am bret baier in washington. >> martha: i martha maccallum, "bill hemmer reports" starts now. we will see you then. >> thank you brett, thank you martha, i'm brett, recess and the trial, we will go back to the senate floor when it continues. there are two significant stories today, one, the argument that the president's lawyers are making before the senate, the other is the story that broke late last night involving john bolton and "the new york times." you know reporting that bolton is writing an upcoming book that the president said he wanted a hold on the money until the investigations asserted in ukraine. that's the claim, president trump denies that. i want to get to the analysis right now, while we can, we'll get some lawmakers on in a moment as well. carl, marianne with me. we will go over what we have watched. let's keep it on the senate floor, for now, carl, you've got about 20 hours left on the clo clock, when the resume here how

effective has a day been so far today? >> well, i thought we got it off to a good start. and then purpura, i agree with chris's analysis in the previous hour, that he did a very good, solid job of laying out the case, reflecting on the points that the democrats had raised, but had not pointed to the evidence in their own record that contradicted the arguments that they were making in their presentation. so off to good start here, it is overcast, if you will, by all this discussion about bolton's book, on a point by point recitation of the democratic case, i thought purpura did a very good job. >> bill: she seem to come back continues to the line, no connection between the security assistants and investigations. >> that is clearly the line of defense they were using today. there only one available, when you look at the defense, the

trumps defense team response to the bolton bombshell, they come out with starr today is a well-known name, they will come out with dershowitz later, but it was purpura who is left to make the best case possible. i will just add one thing, you have to look back at the beginning of this trial, mitch mcconnell said the night before it started, he had the votes for the procedural votes, the next day he had to concede and extend the number of days and put the entire record into the record. all the evidence. now you look at what happened today in the wake of the bolton bombshell and asked, can you hold the line with some of these teetering republican senators who are now entertaining witnesses, that is the question. see when democratic view with me right now, one of the impeachment managers, demings from florida. we've got a couple of minutes here, let's get right to it. why not subpoena john bolton before this case moved to the senate, congresswoman? >> let me say this, i think everybody knows, especially your listening audience, that the

president of the united states did everything within his power to obstruct the houses investigation. he gave a blanket order that he was not going to subpoena witnesses and that he was not going to give any document that was not going to cooperate in any way. but as you well know, last night, we really all heard a bombshell involving ambassador bolton. president appointed national security advisor who said that there was a direct link between holding the aide and the investigation. both these investigations into the 2016 elections is willing as to the bidens. so we've also set a lot this week that there has been no trial anywhere in the united states where we have not subpoenaed witnesses and documents. the senate, have jurors, have this opportunity to deliberate on the witnesses and documents, and certainly, i believe, after hearing the preliminary information last night, regarding bolton, that they

would want to do that. >> bill: back to the question, why not subpoena him? ken starr was making the case that he filed subpoenas against bill clinton in the 1990s and always went to court. ken starr says he always won then, why not go that route before you got to the senate? >> i think the republicans, or the white house counsel chose a very interesting messenger today in mr. starr, someone to today is purporting that impeachment should be bipartisan. if we take a look in his history, i know we all have the time to do that today, but anyway. >> bill: i'm just not hearing an answer, i'm just trying to get that for our viewers here. why not pursue the subpoena? >> the president, as you well know, in the houses investigation, look, i know this is a tough time, it is a tough time for our nation, it is a tough time for you, and everybody, but we also know that

the president issued a blanket order that he was not going to cooperate, not going to allow any administration officials, even former administration officials -- goes >> bill: still does not prevent you from taking them to court. let me try to get another question and, you heard the attorney say a moment ago there was no connection between the a security assistance and the investigations, no investigations were started or announced of ukraine, howdy respond to that? >> i think it is interesting, i heard the white house counsel say that as well. but you know what? the acting white house chief of staff at a press conference said that there was a link between holding the military aid and the dnc server, i.e. 2016 election. we also know that ambassador sondland called the president and said there is no quid pro quo, but then said, that president zelensky needed to go

to the microphone and make an announcement about the investigation and he should want to do it. let me just say this, you are really just kind of proving our case for the need to hear from ambassador bolton. because he is clearly someone who, as i said, appointed by president trump into saying no, there was a direct conversation between the two of them and there was a direct quid pro quo. >> bill: i appreciate your time, we are short on time, i hope you come back, senator val demings, from florida. for the republican view, republican john out of texas, i know you only have a couple minutes as well, go ahead and react to the john bolton story that kind of blew the headlines out of the water late last night, would you expect him, now, to be called as a witness, senator? >> bill, congratulations on your new show, i would say that the impeachment managers put the cart and head of the horse. they put impeachment before

producing the evidence which they should've done in the house, we could've avoided all of this uncertainty now. we will still vote on friday on whether additional witnesses will be required, but all we have now, is who knows the source of this information, and whether there is any conflict. but what we do know, as a matter of fact, is the aide was delivered, and the visit with the president occurred. to me, that logically blows a big hole in the impeachment managers theory, not the least of which, as well, is this vague allegation of abuse of discretion, trying to undo the election of 2016 while interfering. >> bill: let me just move this forward a little bit, here, if you get witnesses, how does this trial change? what happens then? >> well, it goes on forever and ever and ever, because what is going to happen is that there are claims of executive privilege in the course of this

senate trial, they will have to be litigation, decided in the district court here in the district of columbia, then it will go up to the court of appeals and the supreme court. that could take at least weeks, probably more like months, in the meantime, the senate is more close to bring down drug prices, peasant highway boo, things like that that we ought to be doing. >> bill: one more question, you need 51 senators to get a witness. if you look at senators makowski, senators rollins, senator romney today, it'd. that they might be leaning that way, which means you only need one more, sir, do you expect that to happen? >> well, who is ever saying that, they must be a mind reader, i am not a mind reader. at what they have wisely said is that they're going to defer that decision. >> bill: understood, but they made comments earlier today that seemed to suggest based on the bolton news that they could be open to that, senator collins,

yourself, 1999 voted for witnesses even though she voted not guilty in the articles against bill clinton. >> that's with a resolution that we pass that is, we will be open to that, but that vote won't occur until friday, first we would like to give the president's lawyers a chance to tell their side of the story after listening for 23 hours to the impeachment managers. >> bill: senator, thank you so much, i know you've got a run. john cornyn from texas, president trump has indicated that he would try to use executive privilege to try to block john bolton from testifying during the trial. live at the white house, the view they are with their chief white house correspondent, john roberts on the north lawn, john, good afternoon. >> bill, good afternoon, we spoke to the president last wednesday in dabo switzerland, he said, in the same breath, when i asked him a question, he would like to have bolton testify, but then at the same time, having some but he wh whos as dialed in on national security, everything the president feels from national security to what he feels personally about world leaders would not necessarily be the

prudent thing. now the stories come out of "the new york times" that john bolton is saying that the president did indicate to him that eight ukraine was conditioned on whether or not they open investigations, the president is now responding to say he never told bolton such a thing. listen to what the president said in response to a question i put to him in the aide as he was greeting the israeli prime minister in benjamin netanyahu, listen here. >> what is your response to the bolton manuscript increasing the chances you testify? >> president trump: i haven't seen a manuscript, but nothing was ever said to john bolton. i have not seen a manuscript. i guess he's writing about, i have not seen it. >> just a few minutes after that, when we were in the oval office together with president trump and benjamin netanyahu, i put the president like the question as to the president what are the veracity of the claims john bolton was making here. >> what about the allegations made by bolton? the president said categorically that they are increasing

pressure on many republicans to call for witnesses and to perhaps have john bolton testify, listen to what utah senator mitt romney said earlier today about that. >> i think that a story that came out yesterday is increasingly apparent that it would be important to hear from john bolton, i have course would make a final decision on witnesses after we have heard from not only the prosecution but also the defense. i think at this stage it is pretty fair to say that john bolton has a relevant testimony to provide to those of us who are sitting in impartial justice. >> couple of other senators that may swing their vote the other way in terms of whether or not to call witnesses, susan collins, lisa murkowski of alaska. susan collins, in a statement said "i was always likely to call witnesses just as i did in the 1999 clinton trial. the reports about john bolton's book strengthen the case for witnesses and a prompt a number of conversations between my colleagues from the alaska

senator, i stated before that i was curious as to what john bolton might have to say." some people are suggesting that john bolton got this information released because today, coincidentally, is the day that presales for his new book come out. in a statement, john bolton and simon & schuster, his publishers said "ambassador john bolton simon & schuster jablon literary categorically to state that there was absolutely no coordination with "the new york times" or anyone else regarding the appearance of information about his book "the room where it happened" online sellers any assertion of the contrary is speculation." bill, we were sebo disco's, the swing vote there, they may determine whether or not there witnesses, as romney said, he wants to hear the full presentation from both sides before making that determination. >> bill: thank you john, were going to commercial on a moment, but finally to andy mccarthy, if you weeks ending that has classified information and that whether it came from john bolton

are semi at the white house, that is a crime. >> well, it certainly makes you vulnerable to it, bill, there is a state of mind thing where you have to prove that someone has done it willfully and intentionally. if it is not classified information, it could be in violation of people's contractual obligations, and they are ethical obligations, but it may not be a crime. >> bill: to all of you, standby, and a moment we will give everyone a chance to get a at the apple, 21 hours left for the presidents attorneys. back in a moment with the trial. tender wild-caught lobster, dig in to butter-poached, fire-roasted and shrimp & lobster linguini. see? dreams do come true. or if you like a taste of new england without leaving home, try lobster, sautéed with crab, jumbo shrimp and more, or maybe you'd like to experience the ultimate surf and the ultimate turf... with so many lobster dishes, there's something for every lobster fan so hurry in and let's lobsterfest. or get pick up or delivery at redlobster.com

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>> we are in what is described as a 15 minute break inside the senate trial on this monday afternoon. good afternoon wherever you are today. thank you for tuning and as we get some more analysis, now, before the senate resumes, bret baier, martha maccallum, and the ankara fox news sunday, chris wells, freshly back from iowa, chris, why don't we start here for this particular segment, i'm when you crew to mike queue up the line for his sekulow, he started the first two hours about 1:10 the first hour. this appears to be reference to john bolton, i'll give you listen, we will talk about it. >> we deal with publicly available information, we do not deal with speculation, allegations that are not based on evidentiary standards at all.

>> bill: the reason i point to that chris, some leading republicans today are very close to senate leadership. they expected the presidents attorneys to open today addressing the bolton allegations, or the bolton story. that seemed to be about the only reference we have heard thus f far. >> yeah, i was a little surprised that it is the dog that didn't bark. the story on john bolton's at the white house defense lawyers haven't mentioned him at all, except for that very veiled reference. first of all, i have got a news flash, i just checked on amazon, john bolton's book, "the room where it happened" is now the number 55 best seller on amazon, which is all advance copies, because it doesn't come out until march. if it was a p.r. stunt, it has worked very effectively. i think that the white house, these lawyers -- >> bill: make it quick, sekulow's back talking again. can you dude and five seconds?

>> real quickly, they had a case, they are going to make the case, now everything is changed. it is tough to be a white house lawyer at this moment. spiel and thank you, chris, here is jay sekulow, we just mentioned to him, back inside as the senate trial resumes. >> for the defense of the president. the issue of mayor giuliani has come up here in this chamber a lot. we thought it would be appropriate now to turn the data issue, the role of the president's lawyer, his private counsel, in this proceeding. i would like to yield my time, mr. chief justice to james raskin. >> mr. chief justice, majority leader mcconnell, members of the senate. i expect you have heard american poet carl sandberg's summary of

the trial lawyers dilemma. if the facts are against you, argued the law, if the laws against you, argue the facts. if the facts and the law are against you, pound the table and yelled like hell. while, we have heard the house managers do some table pounding and a little yelling. but in the main, they have used a different tactic here. a tactic familiar to trial lawyers, though not mentioned by mr. sandburg. if both of the law and the facts are against you, presents a distraction. emphasize the sensational facts, or perhaps the colorful and controversial public figure who appears on the scene, then distort certain facts, ignore others, even when they are the most probative, make conclusory statements, and insinuate the shiny objects is far more important than the actual facts allow.

in short, divert attention from the holes in your case. rudy giuliani is the house managers colorful distraction. he is a household name, legendary federal prosecutor who took down the mafia. corrupt public officials, wall street racketeers, crime busting mayor who cleaned up new york and turned it around, a national hero, america's mayor after 9/ 9/11, and after that, an internationally recognized expert on fighting corruption. to be sure, mr. giuliani has always been somewhat of a controversial figure for his hard-hitting take no prisoners approach, but it is no stretch to say that he was respected by friend and foe alike for his intellect, his tenacity, his accomplishments, and his fierce loyalty to his causes and his

country. and then the unthinkable, he publicly supported the candidacy of president trump. the one who is not supposed to win. and then, in the spring of 2018, he stood up to defend the president, successfully, it turns out, against what we all now know as the real debunked conspiracy theory. that the trump campaign colluded with russia during the 2016 campaign. the house managers would have you believe that mr. giuliani is at the center of this controversy. they have anointed him the proxy villain of the tale, the leader of a rogue operation, their presentations were filled with ad hominem attacks and name-calling. cold-blooded political operative, political bagman, but i suggest you that he is front and center in their narrative for one reason and one reason

alone. to distract from the fact that the evidence does not support their claims. so what is the first it's how that mr. giuliani's role and this may not be all that it is cracked up to be? they did not subpoena him to testify. in fact, mr. schiff and his committee never even invited him to testify. they took a stab at subpoenaing his documents back in september, and when his lawyer responded with legal defenses to the production, the house walked away. but if rudy giuliani is everything they say he is, don't you think they would have subpoenaed and pursued his testimony? ask yourselves, why didn't they? in fact, it appears the house committee wasn't particularly interested in presenting you with any direct evidence of what mayor giuliani did, or why he did it. instead, they ask you to rely on

hearsay, speculation, and assumption, evidence that would be inadmissible in any court. for example, the house managers suggest that mr. giuliani, at the president's direction, demanded that ukraine announce an investigation of the bidens and burisma before agreeing to a white house visit. they base that on a statement of ambassador sondland. but what the house managers don't tell you was that solomon admitted he was speculating about that. he presumed that mr. giuliani's requests were intended as conditions for a white house visit. even worse, his assumption was on thirdhand information. as he heard it the most if you do is repeat what he heard through ambassador volker from giuliani. whom, he presumed the spokes of the president on the issue.

and by the way, as mr. purpura has explained, the person who was actually speaking to mr. giuliani, ambassador volker, testified clearly that there was no linkage between the meeting with president zelensky and ukrainian investigations. the house managers also make much of a may 23rd white house meeting, during which the president suggested to his ukraine working group, including ambassador volker and ambassador sondland that they should talk to rudy. the managers told you that president trump gave a directive and a demand that the group needed to work with giuliani if they wanted him to agree with ukraine policy they were proposing. but those words, directive and demand, are misleading. they misrepresent what the witnesses actually said.

ambassador volker testified that he understood, based on the meeting, that giuliani was only one of several sources of information for the president. and the president simply wanted officials to speak to mr. giuliani because he knows all these things about ukraine. as a best volker portrait, the president's comment was not an instruction, just a comment. ambassador sondland agreed. he testified that he did not take it as an order, and he added that the president wasn't even specific about what he wanted us to talk to giuliani about. so, it may come as no supplies to you that after the may 23rd meeting, the one during which the house managers told you the president demanded that his ukraine team talk to giuliani, neither investors and full color or sondland even followed up

with giuliani until july. the july follow-up by mr. volker happened only because the ukrainian government asked to be put in touch with him. full crew testified that mr. zelinski's senior aide approached him to ask to be connected to mr. giuliani. house democrats also rely on testimony that mayor giuliani told them masters vulgar and silent that, in his view, to be credible, ukrainia statement on anticorruption should specifically mention investigations into the 2016 election interference and a burisma. but when investor volker was asked if he knew if giuliani was, these are his words "conveying messages that president trump wanted conveyed to the ukrainians, volker said that he did not have that impression" and he believed that giuliani was doing his own communication about what he

believed he was interested in. but even more significant than their reliance on presumptions, assumptions, and unsupported conclusions is the manager's failure to place in any fair context mr. giuliani's actual role in exploring ukrainian corruption. to hear their presentation you might think that mayor giuliani had parachuted into the president's orbit in the spring of 2019 for the express purpose of carrying out a political hit job. they would have you believe that mayor giuliani was only there today cup dirt against former vice president haydn because he might be president trump's arrival in that 2020 election. of course, mr. giuliani's intent is no small matter here. it is a central and essential present done my premise of the house managers case, that

mr. giuliani's motive in investigating ukrainian corruption and interference in the 2016 election was an entirely political one, undertaken at the presidents direction. but, what evidence have the managers actually offered you to support that proposition? on close inspection, it turns out, virtually none. they just to say it over and over and over. and they offer you another false dichotomy, either mr. giuliani was acting in an official capacity to further the president's foreign policy objectives, or he was acting as the president's personal attorney, in which case, they conclude, his motive could only be to further the presidents political objectives. the house managers then point to various of mr. giuliani's public statements in which he is clear

and completely transparent about the fact that he is, indeed, the presidents personal attorney. there you have it. giuliani admits he is acting as the presidents personal attorney, and therefore, he had to have been acting with a political motive to influence the 2020 election. no other option, right? wrong. there is, of course, another obvious answer to the question, what motivated mayor giuliani to investigate the possible involvement of ukrainians in the 2016 election. the house managers know what the answer is. it is in plain sight. and mr. giuliani has told any number of news outlets exactly when and why he became interested in the issue. it had nothing to do with the 2020 election. mayor giuliani began investigating ukraine corruption and interference in the 2020

election way back in november of 2018. a full six months before vice president biden announced his candidacy. four months before the release of the mueller report when the biggest falls conspiracy theory and circulation, that the trump campaign had colluded with russia during the 2016 campaign was still in wide circulation. as the hill reported, as president trump's highest profile defense attorney, the former new york city mayor, often known simply as rudy believed the ukrainians evidence could assist in his defense against the russia collusion investigation, and former special counsel robert mueller's final report. so giuliani began to check things out in late 2018 and early 2019. the genesis of mayor giuliani's investigation was also reported

by numerous other media outlets. including cnn, which it relayed that giuliani's role in ukraine could be traced back to novembes contacted by someone he described as a well-known investigator. "the washington post," and many other news outlets reported the same information. so yes, mayor giuliani was president trump's personal attorney. but he was not on a political errand. as he has stated repeatedly and publicly, he was doing what good defense attorneys do. he was following a lead from a well-known private investigator, he was gathering evidence regarding ukrainian election interference to defend his client against the false allegations being investigated by special counsel muller. but the house managers didn't

even allude to that possibility. instead, they just repeated their mantra that giuliani's motive was purely political and that speaks volumes about the bias with which they have approached their mission. the bottom line is mr. giuliani defended president trump vigorously, relentlessly, and publicly throughout the mueller investigation. and, in the nonstop congressional investigations that followed. including the attempted muller redo by the house judiciary committee, which the managers would apparently like to sneak in the back to her here. the house managers may not like his style, you may not like his style, but one might argue that he is everything clarence darrow's set a defense lawyer must be.

outrageous, irreverent, blasphemous, aerobic, renegade. at the fact is, in the end, after a two year siege in the presidency, to inspector general reports, and a $32 million special counsel investigation, turns out rudy was spot on. it seems to me, if we are keeping score on hood but it right on allegations of fisa abuse, agree just on the highest level of the fbi, allege collusion between the trump campaign in russia, and supposed obstruction of justice in connection with the special counsel investigation, the score is mayor giuliani 4, mr. schiff. but in this trial, in this moment, mr. giuliani is just a

minor player. that shiny object designed to distract you. senators, i urge you, most respectfully, do not be distracted. thank you, mr. chief justice. i yield back to mr. sekulow. >> mr. chief justice, members of the senate house managers, we're going to now move to a section dealing with the law. two issues in particular that my colleague the deputy white house counsel will be addressing. issues involving due process, and issues, specifically legal issues dealing with the second article of impeachment, obstruction of congress. so i will yield my time now, mr. chief justice, to the deputy

white house counsel. >> mr. chief justice, senators, majority leader mcconnell, minority leader schumer, the other day as we open our presentation, i touched on two areas, some of the due process violations that characterize the proceedings in the house, and some of the fundamental mischaracterizations and errors that underpin the house democrats charge of obstruction. today, i will complete the presentation on those points to round out some of the fundamentally unfair procedure that was used in the house and its implications for this proceeding before you, now. and also, address in detail the purported charges of obstruction in the second articles of impeachment. undo process, there are three fundamental errors that infected the proceedings in the house.

the first is, as i explained on saturday, the impeachment inquiry was unauthorized and unconstitutional from the beginning. no committee of the house has the power to launch an inquiry under the houses impeachment power unless the house itself has taken about to give that authority to a committee. i noted that in cases such as ruling versus the united states and the united states versus watkins, the supreme court has set out these principles. general principles derived from the constitution which assigns authority to each chamber of the legislative branch. to the house and to the senate, but not to individual members or two subcommittees. foreign authority of the house to be transferred to the committee, the house has to vote on that. the d.c. circuit has distilled the principles from those cases this way. to issue a valid subpoena, a committee or subcommittee must

conform strictly to the resolution establishing its investigatory powers. that was the problem here, there was no such resolution, there was no vote from the house authorizing the issuing of subpoenas under the impeachment power. so this inquiry began with nearly two dozen invalid subpoenas. the speaker had the house proceed on nothing more than a press conference in which she purported to authorize committees to begin impeachment power under the constitution she lacked that authority. as a chairman of the house judiciary committee during the nixon impeachment inquiry pointed out, peter rodino, explained that such a resolution from the house has always been passed by the house, it is a necessary step if we are to meet our obligations. so we began this process with unauthorized subpoenas that impose no compulsion on the executive branch to respond with

documents or witnesses, and i will be coming back to that point, that the threshold foundational point when we get to the obstruction charge. the second fundamental due process error is that the house democrats denied the president basic due process required by the constitution, and by fundamental principles of fairness and the procedures that they used for the hearings. i'm not going to go back in detail over those, as we heard from judges star, the house democrats essentially abandoned the principles that have governed impeachment inquiries in the house for over 150 years. i will touch on just a few points and respond to a couple of points that the house managers have made. the first is, in denying due process rights, the house proceedings were huge reversal from the positions house democrats themselves had taken in the recent past, particularly

in the clinton impeachment proceeding. i believe we have manager nadler's description of what was required. [no audio] >> manager nadler was explaining the due process requires, at a minimum, notice of the charges against you, the right to be represented by counsel, the right to cross-examine witnesses against you, and the right to present evidence. all those rights were denied to the president. now, one of the responses that the managers have made, that we pointed out in the secret proceedings, or manager schiff began this hearings, in the basement bunker is that while that was really just best investigative practice, they were operating like a grand jury. don't be fooled by that.

those hearings operated nothing like a grand jury. a grand jury has secrecy, primarily for two reasons. to protect the direction of the investigation so others won't know what witnesses are being called in on what they are saying to keep that secret for the prosecutor to be able to keep developing the evidence and to protect the accused because the accused might not ever be indicted. in this case, all of that information was made public every day, the house democrats destroyed any legitimate analogy to a grand jury because that was all public, they made no secret that the president was the target, they issued bile about him every day. they did not keep their investigation seekers. they published daily, the direction of the investigation was opened, and that testimony that took place was that

selectively leaps into a compliant media to establish a false narrative. about the president, if that sort of conduct had it occurred in a real grand jury, that would've been a criminal violation, prosecutors can't do that. under rule 6e, it is a criminal offense to be leaking what takes place in a grand jury. and also, the grand jury explanation provides no rationale whatsoever for the second round of hearings, remember, after the basement bunker, and for the secret hearings relative testimony was prescreened, than the same witnesses who had already been deposed were put on a public hearing where the president was still excluded. ask yourself, what was the reason for that, and every impeachment in the modern era where there if and public hearings, the president has been represented by counsel and could cross-examine witnesses. why did there have to be public

televised hearings where the president was excluded? that was nothing more than a show trial. now, i also addressed the other day the house manager's contention that they had offered the president due process, that, when things reach the third round of hearings in front of the house judiciary committee, that manager down there offered the president due process, explained without was illusory, there is no genuine offer there, be because before any offers began, other than the law professor seminar on december 4th, the speaker had already dissed to determine the outcome, artie said there were articles of impeachment they had informed the council's office they had no plan to call any witnesses or have no factual hearings, whatsoever. it was all done, it was locked in, it was baked. there was something else hanging over that when they had offered, purportedly to allow the president some rights, that was

a special provision in the rule for the house judiciary committee proceedings. also unprecedented, that allowed the house judiciary committee to deny the president and he process rights at all if he continued to refuse to turn over documents or not allow witnesses to testify. so that if the president did not give up his privileges and immunities that he has been asserting over executive branch confidentiality because he didn't comply with what the house democrats wanted then it was up to chairman nadler potentially to say no rights at all. there is a term for that and the law, it is called an unconstitutional condition. you can't condition someone's exercise of some rights on their surrendering other constitutional rights. you cannot say we will let you have due process in this way if you waive your constitutional privileges on another issue.

the last point i will make about due process is this, it is important to remember that due process is enshrined in the bill of rights for reason, it is not that process is just an end in itself. instead, it is a deep-seated belief in our legal tradition that fair process is essential for accurate decision-making, cross-examination of witnesses in particular is one of the most important procedural protections for any american. the supreme court has explained that for over 250 years, our legal tradition has recognized cross-examination as the greatest legal engine ever discovered for the discovery -- ever invented for the discovery of truth. so why did house democrats jettison every precedent and every principle of due process in the way they devise these

hearing procedures? why did they devise a process that kept the president locked out of any hearings for 71 of the 78 days of the so-called investigation? i would submit, because, the process was never about finding the truth. the process was about achieving a predetermined outcome on a timetable. and having it done by christmas, and that is what they achieved. now, the third fundamental due process error is that the whole foundation of these proceedings was also tainted beyond repair because an interested fact witness supervised unlimited the course of the factual discovery, the course of the hearings, i explained the other day that manager schiff had a reason,

potentially, because of his contact with the so called a whistle-blower, and what was discussed and how the complaint was framed which all remain secret, to limit inquiry into that, which is relevant. at the whistle-blower began this whole process, his bias, his motives, why he was doing it, what his sources were, that is relevant to understand what generated this whole process. but there was no inquiry into that. so, what conclusion does this all lead to, all of these due process errors that have infected the proceeding up to now. i think it is important to recognize the right conclusion is not that this body, this chamber should try to redo everything, to start bringing new evidence, bring in witnesses, because the president was not allowed witnesses below, and redoing the whole process. that's for a couple of reasons, one, my colleagues have demonstrated, despite the

one-sided unfair process in the house, the record that the house democrats collected through that process already shows that the president did nothing wrong, it already exonerates the president. but the second and more important reason is because of the institutional implications it would have for this chamber. whatever precedent is set, whatever this body except now as a permissible way to bring an impeachment proceeding, and to bring it to this chamber becomes the new normal and if the new normal is going to be that there can be an impeachment proceeding in the house that violates due process, that doesn't provide the president, or another official being impeached due process rights, it fails to conduct a thorough investigation that doesn't come here with the facts established, that then this body should become the

investigatory body and start redoing with the house did not do, and finding new witnesses and doing things over, and getting new evidence. then that is going to be the new normal, and that will be the way that this chamber has to function, and there will be a lot more impeachments coming, because it is a lot easier to do an impeachment if you don't have to follow due process and can come here and expect the senate to do the work that the house did not do, i submit, that is not the constitutional function of this chamber sitting as a court of impeachment. this chamber should not put on a process in the house that would force this chamber to put on this role. i will move onto the charge of obstruction in the second article of impeachment. accepting that article of impeachment would fundamentally damage the separation of powers

under the constitution by permanently altering the relationship between the executives and the legislative branches. in the second article, house democrats are trying to impeach the president for resisting legally defective demands for information by asserting established legal defenses and immunities based on legal advice from the department of justices office of legal counsel. in essence, the approach here is that house democrats are saying when we demand documents, the executive branch must comply immediately. any assertions of privilege or defenses to our subpoenas are further evidence of obstruction. we don't have to go through the constitutionally mandated accommodations process to work out an acceptable solution with the executive branch. we don't have to go to the courts to establish the validity of our subpoenas. at one point, manager schiff said that anything that makes

the house even contemplate litigation is evidence of obstruction. instead, the house claims they can jump straight to impeachme impeachment. what this really means, in this case, is that they are saying, for the president to defend the prerogatives of his office, judy found constitutionally grounded principles of executive branch privileges, or immunities, is an impeachable offense. if this chamber accepts that premise, that what has been asserted here constitute an impeachable offense, it will forever damage the separation of powers. it will undermine the independence of the executive, and destroy the balance between the legislative and executive branches that the framers crafted and constitution. as professor turley testified before the house judiciary committee, basing impeachment on this obstruction theory would, itself, be an abuse of power by congress.

i would like to go through that and unpack and expand some of that. i will start by outlining what the trump administration actually did in response to subpoenas. there are three different actions, three different legally based assertions for different subpoenas that the trump administration made. i pointed out on saturday, there has been this constant refrain from the house democrats that there is just blanket defiance, blanket obstruction, as if it were unexplained obstruction. just, we won't cooperate without more. that is not true, they were very specific legal grounds provided. each one wasn't supported by an opinion from the department of justice's legal counsel. so the first, his executive branch officials declined to comply with subpoenas that had not been authorized. if that is the point made at the

beginning, no vote from the house without a vote from the house, the subpoenas that were issued were not authorized. i pointed out that in that october 18th letter from the white house counsel, the specific ground was explained. it wasn't just from the white house counsel, there were other letters. on the screen now, as of octobeb which explained, absence of delegation by a house rule or a resolution of the house, none of your committees has been delegated jurisdiction to conduct an investigation pursuant of the impeachment power under article 1, sex and . the letter went on to expand that constitution. not blanket defiance, the letters mount tricks when these legal grounds for resisting. at the second ground the second principle that the trump administration asserted was that some of the subpoenas purported to require the president senior

advisors, close advisors to testify. following at least 50 years of precedent, the department of justice's office of legal counsel advised that three senior advisors to the president, the acting white house chief of staff, the legal advisor to the national security council, and the deputy national security advisor were absolutely immune from compelled congressional testimony. based on that advice, from the office of legal counsel, the president directed those advisors not to testify. administrations of both political parties have asserted this immunity since the 1970s, president obama asserted it as director of political outreach. president george w. bush asserted it as to his formal counsel and his white house chief of staff. president clinton asserted it as two of his councils. a president reagan asserted as

to his counsel, fred fielding, president nixon asserted that. this is not something that was just made up recently. there is a decade-long history of the department of justice providing the opinion that senior advisors to the president are immune from compelled congressional testimony. the same principle that was asserted here. there are important rationales behind this immunity. one is that the president's most senior advisors are essentially his alter egos. allowing congress to subpoena them and compel them to the come testify would be tantamount to allowing congress to subpoena the president and forced him to come testify. but that, under the separation of powers would not be tolerable. congress could no more do that with the president and the president could force members of congress to come to the white house in answer to him. there is also a second and

important rationale behind this immunity. that relate to executive privilege. immunity protects the same interest that underlie executive privilege. the supreme court has recognized executive privilege that protects the confidentiality of communications with the president and deliberations within the executive branch is, as a core parted in the united states versus nixon, the privilege is fundamental to the operation of government, and a inextricably rooted in the separation of powers under the constitution. so the supreme court has recognized executive need this privilege to be able to function. it is rooted in the separation of powers. as attorney general janet reno advised president clinton, the immunity such advisors and joy testimony compulsion from committee is absolute, and may

not be overborne by competing congressional interests. so attorney general reno and president clinton. this is not a partisan issue, this is not a republican or democrat issue. administrations of both party observe this principle of immunity for senior >> why does it matter? it matters because the supreme court has explained the fundamental principle behind executive privilege is that it is necessary to have confidentiality in communications and deliberations in order to have good and worthwhile deliberations. in order to have people provide their candid advice to their president. if they knew what they were going to say was going to be on the front page of the watch and poached the next day or the next week, they wouldn't tell the president what they actually thought. if you want to have good decision-making, there has to be that zone of confidentiality. this is the way the supreme court put it. "human experience teaches that

those who expect public dissemination of the remarks may well temper candor with concern for public appearances and their own interest to the detriment of the decision-making process was quote. cat was also from the united states versus nixon. those are exactly the interests that was protected by senior advisors to the president to be from congressional tester, a testimony. when someone is compelled to sit in the witness seat, it's very hard to protect that privilege and reveal something that was not discussed. for a small circle for those close to the president for the past 40 to 50 years, administrations of both parties have insisted on this principle. the other night, the house managers when we were here very late last week, they suggested that executive privilege was a distraction and manager nadler called it nonsense. not at all.

it is our principle recognized by the supreme court, a constitutional principle grounded in separation of powers. they also asserted this is immunity has been rejected by every court that has addressed t appeared as if to make it seem that lots of courts have addressed this, they have all said that this theory just doesn't fly. that is not accurate. that is not true. in fact, in most instances, once the president inserts immunity for a senior advisor, the accommodations process between the executive branch and the legislature begins. there's usually some compromise to allow perhaps some testimony, not in open hearing, but a closed hearing or deposition, perhaps to provide other information in testimony. there is a compromise. but the only two times it has been litigated, this records, it is true, it rejected at the

immunity. >> the senate trial continues in washington, d.c. our coverage continues with neil cavuto and "your world." have a good afternoon. we'll continue to watch this. 19 hours on the clock with the president's attorneys. >> neil: we interrupt this trial ever so briefly to update you on the corner of wall and borough. 59 points, the worst since last october. it has nothing to do with the impeachment hearing and everything to do with the coronavirus. zeroing in on 3,000 cases worldwide now encompassing more than a dozen countries. the reason for the sell-off is that it seems to has no end. the chinese authorities cannot get a grip on it even though they have corn teed 50 millions. encompassing eight major cities. at this p