more vote to get witnesses. >> bret: we will continue to cover this on fox news channel and have continuing coverage tomorrow as well. >> martha: "bill hemmer reports" starts right now. we will see you later, folks. stay tuned. >> bill: thank you, brett, martha, i am bill hemmer in new york, as soon as there is a break in the trial, we will bring you reports and analysis, but for right now, let's go back inside. >> thank you, mr. chief justice and senators for the question, the answer is, yes, there are well-established processes, mechanisms and agencies in place to pursue valid and legitimate national security interests of the united states. like the national security council.

like the national security adviser, as in ambassador john bolton. and many other folks within the state department and the department of defense. and as we have well-established over the last week, none of those folks, none of those agencies that would have been involved in having that deliberation reviewing that evidence, having that discussion were incorporated into any type of interagency review process during the vast majority of the time that we are talking about here. from the time of the president's call on july 25th, to the time the hold was lifted. those individuals were in the dark. they did not know what was happening. and more so not only were they in the dark, but the president violated the law, by that violating the impoundment control act to execute his scheme.

none of that suggests a valid legitimate policy objective. more so the president himself and his counsel is bringing at issue with the question of documents and witnesses. if over and over again as we have heard in the last few days, that the president was simply pursuing a valid legitimate policy objective, if this was a specific debate about policy, a debate about corruption. a debate about burden sharing, then let's have the documents that would show it. let's hear from the witnesses that would show that. because the documents and the witnesses that we have forded and talked about show the exact opposite. so the american people in this chamber deserve to have a fair trial. to the president deserves to have a fair trial. if he is arguing that there is evidence and a policy debate,

then i think everybody would love to see those documents. they would love to see the witnesses and hear from them directly about what exactly was being debated. >> thank you, mr. manager. >> the senator from south carolina. >> i send the question to the desk for my fellow senator cruz. >> thank you. >> senator graham and senator cruz pose this question for the house managers. mr. schiff's hypothetical, if president obama had evidence that mitt romney's son was being

paid $1 million per year by a corrupt russian company and mitt romney had acted to benefit the company, would obama have authority to ask that that potential corruption be investigated? >> first of all, the hypothetical is a bit off, because it presumes that in that hypothetical that president obama was acting corruptly or there was evidence that he was acting corruptly with respect to his son, but let's take your hypothetical on its terms. would it have been impeachable if barack obama had tried to get an investigation of mitt romney, whether it was justified or unjustified? the reality is for a president to withhold military aid from an

ally or a hypothetical to withhold it to benefit an adversary, to target their political opponent is wrong and corrupt, period. end of story. and if you allow a president to rationalize that conduct, rationalize, jeopardize the nation's security to benefit himself because he believes that his opponent should be investigated by a foreign power, that is impeachable. if you have a legitimate reason to think that any u.s. person has committed an offense, they are legitimate ways to have an investigation conducted. there are legitimate ways to have the justice department to conduct an investigation. i would say to you for a president to turn to his justice department and say i want you to investigate my political rival taints whatever investigation they do. president should not be in the business of asking their own justice department to

investigate their rivals. the justice department ought to have some independence from the political desires of the president. in one of the deeply troubling circumstances of the current presidency is that you do have a president of the united states speaking quite openly urging his justice department to investigate his perceived enemies. that should not take place either. but under no circumstances do you go outside of your own legitimate law enforcement process to ask a foreign power to investigate your arrival when you think that there is cause or you don't think there is cause. and you certainly don't invite that foreign power to try to influence an election to your benefit. it's remarkable to me that we even have to have this conversation. our own fbi director has made it abundantly clear, and it should not require an fbi director to say this that if we were

approached with an offer for foreign help, we should turn it down. we should certainly not solicit a foreign country to intervene in our election. and whether we think there are grounds or we don't, the idea that we would hold our own country security hostage by withholding aid to a nation at war to either damage damage our ally or help our adversary because they would conduct an investigation into an opponent, i cannot imagine any circumstance where that is justified. and i can imagine any circumstance where we would want to say, the president of the united states can target his rival, can solicit illicit foreign help in an election and can help him cheat, and that is okay. because that will dramatically lower the bar for what we have a right to expect in the president on the united states. that is that they are acting in our interest.

so i would say it is wrong for the president of president of the united states to be asking for political prosecutions by his own justice department. i would say it is wrong for the president of the united states to ask a foreign power to engage an investigation on his political rival. but particularly where as we have shown here there is no merit to that investigation, it is even more egregious. and you know there is no merit, because he didn't even want the investigation. in the more accurate parallel, senator would be if barack obama said, i don't even need you, russia, to do the investigation, i just want you to announce it. because that betrays the fact that there was no legitimate basis, because the president did not even need the investigation done. he just wanted it announced. and there is no legitimate explanation for that except that he wanted their help in cheating the next election.

>> thank you, mr. manager. the senator from michigan. >> chief justice, i send a question to the desk. >> the question from senator peters is for the house managers. does the phrase or other high crimes and misdemeanors and article 2, section 4 of the constitution require a violation of the u.s. criminal code or is a breach of public trust sufficient? please explain.

>> the framers were very clear that abuse of power is an impeachable offense. and explaining why the constitution must allow impeachment, edmund randolph warned that "the executive will have great opportunities of abusing his power. alexander hamilton described "high crimes and misdemeanors as offenses that proceed from the abuse or violation of some public trust. "the framers also described what it meant. it was impeachable for a president to abuse his pardon power to shelter people he was connected with an a suspicious manner, future supreme court

justice jane beard all said the president will be liable to impeachment if he had acted with some corrupt motive or other or if he was will flemming of abusing his trust. and some centuries of common law, abuse of power occurs at the public officer entrusted with public powers to be exercised for the benefit of the community, wickedly abuses or fraudulently exceeds them. so when the framers said this, that abuse of power was an impeachable, it was not just an empty meaningless statement. remember that the founders had been participating with overthrowing the british government, a king who is not accountable. they incorporated the impeachment power into the constitution, late actually in the drafting of the constitution, they knew that

they were giving the president many powers, and they specified if he abuse them that those powers could be taken away. now, the prior articles that the congress has had on impeachment did not include specific crimes. president nixon was charged with abusing his power, targeting political opponents and engaging in a cover-up. now, there was conduct specified, some of it was clearly criminal, some of it was not. but it was all impeachable because it was corrupt and it was abusing his power. in the house judiciary committee, we had witnesses called by both republicans and democrats, and the republican invited constitutional law expert jonathan turley testified unequivocally that it is possible to establish a case for

impeachment based on a noncriminal allegation of abuse of power. every presidential impeachment including this one has included conduct that violated the law, but each presidential impeachment has included the charges directly under the constitution. it is important to note that a specific criminal law violation was not in the minds of the founders. and it would not make any sense today. you could have a criminal law violation, you could deface a po box, that would be a violation of federal law, we would laugh at the idea that that would be a basis for impeachment. that is not abuse of presidential powers, it might be a crime, and yet, you can have activities that are so dangerous to our constitution, that are

not a crime that would be charged as an impeachable offense. because they are an abuse of power. that is what the framers worried about, that's why they put the impeachment clause in the constitution, and frankly, time that because of the impeachment clause, no executive would dare exceed their powers, regrettably, that prediction did not prove true, which is why we are here today. with president trump having abused his broad powers to the detriment of our national interest for a corrupt purpose, his own personal interest. thank you. >> thank you, counsel. mr. chief justice, oh, senator, thank you. >> thank you, chief justice, i send a question to the desk on behalf of myself and senator michalski.

>> thank you, senator. >> senators ask counsel for the president. described in further detail your intention that all subpoenas issued prior to the passage of house resolution 6-60 are an exercise of imbalance subpoena authority authority by the house committees. >> mr. chief justice, thank you, senators for that question, as i explain the other day, this

contention is based on a principle that has been laid out in several supreme court cases, explaining that the constitution assigns powers to each house of the legislative branch, to the house of representatives, and the language of the constitution is clear in article one trend that the sole power of impeachment is assigned to the house, that is to the house of representatives as a body. not assigned to any committee, to a subcommittee, or to any particular member of the house. and in cases such as room lee versus united states, or united states versus watkins, the court has been called with disputes about subpoenas. they are not an impeachment context, but they establish a general rule and principal them whenever a committee of either body of congress issues a subpoena to someone and that

person resists a subpoena, the courts will examine what was the authority of that committee or subcommittee issue of that subpoena? and it has to be traced back to some authorizing rule or resolution from the house of representatives itself. example in the house committee. the supreme court has made clear that that is the charter of the committee's authority. it gets its authority is solely from an action by the house itself that requires a vote of the house either to establish a committee by resolution or to establish by rule the standing authority of that committee. and if the committee cannot trace its authority to a rule or resolution from the house, then it's subpoena is invalid and the supreme court is made clear in those cases that the subpoenas are no and void, they are behind the power of the committee to issue the force. and our point is very simple. there is no standing rule in the

house that provides the committees that were issuing subpoenas here under the leadership of manager schiff. the authority to use the impeachment power to issue subpoenas. rule 10 of the house defines the legislative jurisdiction of committees, it does not to mention the word "impeachment" even once. no committee under rule 10 was given the authority to issue subpoenas for impeachment purposes. this has always been the case in every presidential impeachment in the history of the nation. there has always been a resolution from the house first to authorize the committee to use the power of impeachment before an attempt to issue the process. so in this case, there was no resolution from the house. the authority, the sole power of impeachment remained with the house of representatives itself, and speaker pelosi, by herself did not have authority, merely

by talking to a group of reporters on september 24th to give the powers of the house to any particular committee to start issuing subpoenas. so the subpoenas that were issued were invalid when they were issued, and then five weeks later on october 31st when the house finally adopted house resolution 6-60 that authorized from that point, went forward to authorize the issuing of subpoenas. nothing in that resolution addressed the subpoenas that had already been issued. it did not attempt or purport to say the ones that have already been issued, we are going to try to retroactively give authority for that. it is a separate question whether that could have been done legally, they did not even attempt to do it. this is all explained in the opinion from the office of legal counsel which is in the trial memorandum attached as appendix c. it is a very detailed and

thorough 37 pages of reasoning, but it explains all of this. the basic principle applied generally the history that it has always been down this way. there has always in every presidential impeachment been in authorizing resolution from the house, and the fact that there was none here. there was no authority for those subpoenas. that means that 23 subpoenas that were issued were invalid, and this was explained as i pointed out the other day in letters from the administration to the committees. the letter from the white house, i think the state department, and in very specific terms set up the rationale. so that is the basis in which the subpoenas were invalid and properly resisted by the administration. thank you. >> thank you, counsel. the senator from pennsylvania. >> mr. chief justice, i send a question to the desk. >> thank you.

speak of the question is directed to the house managers. in federalist 65, alexander hamilton writes that the subjects of impeachment are "those offenses that proceed from the misconduct of public men or from the abuse and violation of some trust." could you speak broadly to the duties of being a public servant and how you believe that the president's actions have violated this trust? >> mr. chief justice, members of

the senate, president trump use the powers of his office to solicit a foreign nation for his own benefit. then obstructed congress in his attempts to escape his abuses of power. these actions are impeachable. the key purpose of the impeachment cause is to control the abuse of power by public officials, that is to say conduct that violates the public trust. since the founding of the republic, all impeachments have been based on accusations of conduct that violates public trust. when the framers wrote the phrase high crimes and misdemeanors, they intended to capture public officials like president trump who show no -- he ignored the law and the constitution in order to gain political favor. of the constitution and the oath of office prohibited him from using his official favor to corruptly benefit himself rather than the american people. that's exactly what the president did. illegally holding military aid until the present and the

ukraine announced the investigation of president trump's opponent. in the words of one constitutional scholar, what we are talking about is not impeachable, then nothing is impeachable. this is precisely the misconduct that the framers created the constitution including impeachment to protect against, and i want to add in reference to some of the comments that were made by some of the presidents council a few minutes ago, he talked about the subpoena power, about the failure of the house to act properly in a subpoena power, because they said the house did not delegate by rule, have a resolution authoring the committee to have subpoena power, but the house has generally delegated all subpoena power to the committees. that was not true at the time of the watkins case, that was not true 15 years ago, but it is true now. second, the house is the sole power of impeachment, and the

manner of its exercise may not be challenge from outside whether we do it, whether the president should be convicted upon her accusation is a question for the senate, but how we reach the accusation is a matter solely for the house. thirdly, they talked about executive privilege, and they point to the nixon case that established executive privilege that the president has a right to private, to candid advice, and therefore executive privilege is established. but the same case says that executive privilege cannot be used to hide wrongdoing. in fact, president nixon was ordered to turn over all the material. thirdly, there is a doctrine of waiver. you cannot use executive privilege or any other privilege if you waiver. the moment president trump said that john bolton was not telling the truth when he said that the

president told him of the improper quid pro quo, he waived any executive privilege that might've existed. you cannot characterize a conversation and put it into the public domain and then claim executive privilege against it. the president, by the way, never claimed executive privilege, ever. he has claimed instead absolute immunity, a ridiculous doctrine that the president has absolutely immunity from any questioning by the congress or by anybody else, a claim rejected by every court that has ever considered it. and finally, the difference in this president than in any other president claiming privilege of any sort is that this president told us in advance, i will deny all subpoenas, whatever their nature, i will make sure that the congress gets no information, in other words, i am absolute. the congress cannot question what i do, because i will defy all subpoenas and make sure they get no information no matter

what the situation. that is a subject of article two of the impeachment, because that is the claim of absolutely monarchal power. >> thank you, mr. manager. the majority recognizes. >> after two questions on each side. one more. i have been corrected. as i frequently am. one more question on each side, then we take a 15 minute break. >> thank you. >> yes, the senator from kansas. >> i send a question to the desk for the council. >> thank you. >> senator roberts asks, would you please respond to the arguments or assertions that

house managers made in response to the previous questions? directed to the council from the president. >> mr. chief justice, members of the senate, i am one of a responses to a couple, with the issues that have been raised as it relates to witnesses, it's important to note that in the clinton impeachment proceeding the witnesses that gave deposition testimony were witnesses that had either been interviewed by deposition in the house proceedings, grand jury proceedings, and it specifically was sid blumenthal and monica lewinsky, new witnesses were not being called. that is because the house in their process moved forward with a full investigation. that did not happen here. there was another statement that was raised by mr. manager schiff

regarding the chief justice could make the determination on executive privilege. and again, with no disrespect to the chief justice, the idea that the presiding officer of this proceeding could determine a waiver or the applicability of executive privilege would be quite a step. there is nothing historic precedent that would justify it. but there is something else, if we get to the point of witnesses, them for instance, if one of the witnesses to be called were by the president's lawyers was adam schiff, and the role of ken starr, ken starr presented the report made the presentation before the house of representatives with 12 hours of questioning, i believe. if representative schiff was called as a witness would in

fact to then issue some debate because privilege be litigated and decided by the presiding officer? would it go to court? or maybe they would waive it? but those will be the issues that would be very, very significant. senator graham presented a hypothetical which manager schiff said, that is not really the hypothetical, but hypotheticals are that, hypotheticals. to use manager schiff's words, he said it would be wrong if the fbi did or the department of justice was starting a political investigation of someone's political opponent, and i am thinking to myself, but isn't that exactly what happened? the department of justice and the fbi engaged in an investigation of the candidate for president of the

united states when they started their operation called crossfire hurricane. he said it would be targeting a rebel, well, that's what that did. he said it would call for foreign assistance in that, well, in the particular facts of crossfire hurricane, it has been well established now that in fact fusion gps utilized the services of a former foreign intelligence officer, christopher steele to put together a dossier and that christopher steele relied on his network of resources around the globe including russia and other places to put together this dossier, which then james comey said was unverified and salacious, but it was the basis upon which the department of justice and the fbi obtained fisa warrants, this was in 2016 against a rival campaign.

so we don't have to do hypotheticals. that is precisely the situation. but to take it an additional step, this idea that any witness will be called if this body decides to go to witnesses, that a witness will be called would be a violation of fundamental fairness. of course, if witnesses are called by the house managers through that motion, well, the president's council would have the opportunity to call witnesses as well, which we would. thank you, mr. chief justice. >> thank you, counsel. senator? >> mr. chief justice, i have a question to the desk.

>> the question from senator harris is for the house managers. president nixon said "when the president does it, that means that it is not illegal." before he was elected president trump said "when you are a star, they let you do it, you can do anything." after he was elected, president trump said article 2 of the constitution gives him "the right to do whatever he wants as president." these statements suggest that each of them believed that the president is above the law. a belief reflected in the improper actions that both presidents took to affect their reelection campaigns. if the senate fails to hold the president accountable for misconduct, how would that undermine the integrity of our system of justice?

>> mr. chief justice, senators, i think this is exactly the fear. i think if you look at the pattern in this president's conduct and his words, what you see is a president who identifies the state as being himself, when the president talks about people that report his wrongdoing, for example, when he describes a whistle-blower as a traitor or a spy, the only way you can conceive of someone who reports wrongdoing as committing a crime against the country is if you believe that you are synonymous with the country. that any report of wrongdoing against the president to the person the president is a

treasonous act. it is the mentality that says under article 2 i can do whatever i want. that i am allowed to fight all subpoenas. now council has given a variety of explanations for the fighting of all subpoenas. they might have a plausible argument if the administration had given hundreds of documents, but reserve some and made a claim of privilege or the administration had said, we will allow these witnesses to testify, but with the use witnesses, with these particular questions we want to exert a privilege. but that's not what was done here. what we have instead is a shifting series of rationales and explanations and duplicitous arguments, some made in court, some made here that have the argument that the subpoenas are not valid before the house resolution and the subpoenas issued after, like to mick mulvaney, those are no good either. we have the argument made that

we have absolute immunity and the court that addresses this as no, you don't, you are not a king. that argument may be thought of with favor by various presidents over history, but not any support from any court in the land. there is no constitutional support for that either. documents that are being released right now as we sit here and it is a mystery of the country and to some of us how a private litigants is able to get documents through the freedom of information act that the administration has withheld from congress. if they were operating in any good faith, would that be the case? and of course, the answer is no. what we have instead is we will claim absolute immunity even though the court says that does not exist. now, they said, we -- the house through the subpoena on -- why would they withdraw the subpoena on dr. kopelman when he was only threatening to tie you

up endlessly in court? we suggested to counsel for dr. kopelman, if they had a good faith concern about testimony, if this was really good faith and was not just a strategy to delay and was not part of the presidents wholesale fight all subpoenas, they did not need to file separate to litigation, because there was a case in court involving don mcgann on that very subject. that was right for decision and the decision would come out very shortly thereafter. and we said, let's just agree to be bound on what the don mcgann court decides. they did not want to do that, and it became evident, because they said there is no absolute immunity, if you think people involved in national security, john bolton, i if you are listening. if you think that you are immune, you are not. so to dr. -- he said, i have what i needed.

the answer is, of course not. counsel says we could have gotten a quick judgment, in the lower court, do any of you believe for a single minute they would not appeal the court of appeals into the supreme court, in the supreme court struck down the absolute immunity argument that they would not be back saying he is not immune, we will claim -- with the president's wrongdoing. that is a sign of a president who believes he is above the law, that article 2 allows him to do whatever he wants. i will say this, if you accept that argument, you accept the argument that the president of the united states can tell you to pound sand when he tried to investigate his wrongdoing, there will be no force behind any senate to subpoena the future. the fighting all subpoenas started before the impeachment.

if you allow a president to obstruct congress so completely in a way that nixon could have never contemplated or that day allowed, you will eviscerate to your own oversight capability. >> thank you, counsel. speak of the majority leader is recognized. >> i suggest that we resume at 4:00. >> without objection, so award awarded. spin on there it is, the first recess of the day. i am bill hemmer, for the next 20 minutes we will take you through what has been a fascinating 2:40 thus far, but has it clarified anything? that is the question as we move towards the witnesses that appear to be two days away from today. meanwhile, we expect several more hours of questions when we continue given the dinner break later today, this could go close

to 10:00 east coast time. meanwhile republican sources telling fox that senate majority leader mitch mcconnell saying that he does not have the vote to block witnesses get. however, that appears to be close. very close. chad pergram reporting from the hill, good afternoon to you. first time i've spoken with you today. perhaps the first question from the three republican senators is the most telling, but what stood out to you thus far? >> the second question posed by chuck schumer to adam schiff, the lead impeachment manager, can you conduct a fair trial if you don't have witnesses, and adam schiff said, don't wait for the book. this is a reference to john bolton and the manuscript coming out here. it was very interesting to watch about the first 26 questions, there were 26 questions that were posed. 106 total in president clinton's impeachment trial in 1999. it is almost like you are watching a football game where they prescript to the first 30 plays.

the offensive coordinator lays out the first 30 plays. that's why both sides were so nimble and being able to respond. adam schiff for the interrogative five chuck schumer played a video. he said obviously they had prebaked this. the key theme seems to be about witnesses and whether or not when they get to friday night and they wrap up the 16 hour period on thursday, do they get through the gateway vote which could open the door to witnesses? that is the key. and again, right on the edge. this is where mitch mcconnell says i do not have the boats yet, this is where we think they could cook up a devil's bargain where they make sure both sides don't get witnesses. and keep in mind if they do open the door for witnesses, that is to separate votes. you have the gateway vote, and then the secondary or third vote on individual slates of witnesses or other witnesses. that's where they could kill this on friday, friday night. if they do vote to open the door, this would along gate the

trial. a number 2, republicans cannot blame that on the democrats. because they had republicans to open the door and witnesses. >> bill: standby, i will get martha maccallum in here as well. watching from our nation's capital. i am told earlier today that with regards to witnesses, the momentum is for no witnesses at the moment as of friday. and some of them believe that they might be able to take a democrat or two along the way. but at the moment that is the big question whether or not that happens. >> that is absolutely the big question, bill, and folks that i have spoken to today say that they see this as -- very, very closed. you have to wonder about the conversations behind the scenes and some of the trading that goes along with it. i thought it was very interesting that the first question came from collins, murkowski, and romney as a group. they asked the question that i think is very essential to the

whole issue that you brought up just a moment ago which is in the ask, in the presidents request for investigation, and he said that encompassed 2016 and the bidens, was there a personal part of the ask as well for a national policy part of that ask, and you heard the attorney philbin break that down and say it is absolutely impossible to decide what percentage was personal and what percentage was public. and there argument is that every president has some personal motivation in any sort of arrangement that he makes with leaders of foreign countries. so, whether or not you believe that is what the senators are deciding right now, but that's how it was laid out. we will see if it was persuasive to those that need to be persuaded. >> bill: i will get to the legal angles, bring in jim trusty, andy mccarthy watching from new york and washington respectively. jim, why don't you begin, what stands out to you at the moment? >> two quick things.

one is that this is not cross-examination. the process is one where there is a lot of choreographed questioning and friendly to friendly. the effort to cross over and challenge the other side falls flat, because you don't have the ability to follow up or control the witness, so that is a intriguing process. there is still an open invitation to justice roberts coming from the democrat side to serve as a trial judge to make the decision as with witnesses. they said and other issues. that is the huge question whether justice roberts ever takes a more active role when deciding things. i don't think he will, i think he will follow the other model, but that is an open question and open invitation. spilling with me now, tammy duckworth out of illinois, senator, thank you for your time. i know that we have just a couple of minutes, did today clarify anything for you, senator? >> it clarified the need for

witnesses, bill, what we have is a process that in fact is not going to be a fair trial, and i don't know that the president would get a fair acquittal if there are not witnesses and a review of the evidence. >> bill: what amount of witnesses, senator? what is satisfactory and where do you stop? >> that is not for me to decide. i've been a juror on a trial before, i am okay with the chief justice making those decisions, but i do think that with mr. bolton's book manuscript being leaked by someone in the white house, and what we are hearing, that we should have some witnesses. and let the chief justice decide which ones can be called. >> bill: have you been able to get a sense of your democratic colleagues as to whether or not you believe some of them could break away from the democratic caucus and vote with republicans on that very question of witnesses? >> you know, i have been focused on my role. every senator has to make their

own decisions. i can tell you that i am not a lawyer, and so i look at this the way my constituents back in illinois will be looking at it. i don't think you have a fair trial for the president. i don't think he gets a fair acquittal if he does not get a full and open trial. >> bill: just to be clear on this, you cannot say whether or not a joe manchin or a doug jones from alabama would vote with republicans? >> i cannot speak for them just as i would not want them to speak for me. i can only speak for myself. and i think that we should be able to see evidence of the president's innocence. so far what i have seen has been pretty damaging evidence from the white house and from the house managers. and the white house says that the president has innocent. i would like to see evidence that shows him talking about some of these things. >> bill: senator, thank you for your time. i hope to speak to you soon. i want to bring in republican senator thom tillis out -- thank you for your time as well. i am led to believe that the

vast majority of republicans want to end this time now. who do you have the votes to do that at the end of the week? >> i believe that we will. when we go on the motion on friday that we will be successful and we will move forward on the articles of impeachment. >> bill: if that is the case, you are at 51 votes, is that firm? >> i believe that we get to the votes, i believe that we go 16 hours of questions. everyone is being very thoughtful in the questions and listening to the answers. at the end of the day i go back to the fundamental president that this is an unconstitutional action. witnesses are not necessary because of the way that it was brought to us is improper. that alone should serve as a basis for no witnesses. >> bill: senator, will you get democrats to vote with you on that? can you stay at the moment? >> i don't think so, i think it will be along partisan lines. >> bill: if you get collins,

murkowski, and romney to break away from republicans, you are at a 50/50 tie, how would that be decided by chief justice roberts? and how do you think that would look politically in an election year? >> i think that first that's not necessarily going to be the scenario. and secondly at the end of the day, the american people, the people that i am talking to in north carolina are over this, they want to move on to the senate going back to doing things that they want to get done for the economy and their personal welfare. those are the questions i will be asked in november. >> bill: senator, thank you for your time. thank you for hanging in there. tom tillis from north carolina. introducing andy mccarthy a moment ago, he is saying just like rick scott said last night with brats, lindsey graham said last night with martha that they believe they can ended on friday. and it is possible, we have to see how it floats out in the

next couple of days, negotiations going on behind the scenes. but i thought the two interviews are very interesting, especially the questions that either got miss answered or docked. your question about what happens if it is 50/50, what happens, bill, it is up to chief justice roberts to decide. he can decide to be assertive and actually cast a vote, or he can decide -- advocate is the wrong word, but he can decide to restrain himself and not vote in which case the motion would not carry, because it does not have -- it would effectively be voting against, because the motion will not carry and have 51. that's what would happen. in the impeachment of andrew johnson, justice chase did both. ruled a couple of times and then stayed his hand once. >> bill: if you get that, i am told by a republican senator earlier today that that is the last scenario they want, because

democrats would hammer them in an election year. >> again, this goes to the point that this is not just a legal proceeding, it is a political one. in the ramifications for political reasons are worse than the legal ones. i want to make one more defense, it is not the president's burden to show his innocence. and one of the things that we have lost here is that there is a gulf between the president doing something that is inappropriate or wrong versus doing something that is impeachable. and now when you listen to the democrats, what we are starting to hear is that he actually has to show that he is innocent, which i think is way beyond the pale of what is required. >> bill: adam schiff said don't wait for the book, that is a reference to john bolton and whether he will be a witness in this case. our coverage will continue right after this.

♪ >> bill: back here life as we wait for the recess to conclude in the senate. there is a reaction that came in during the commercial break. chuck schumer is talking about the battle for witnesses, calling it an uphill battle, but they will keep fighting. cory gardner, republican senator from colorado, could be one of these who goes either way. putting out a statement in the last hour. here's how that statement reads "i do not believe that we need to hear from an 18th witness. i have approached every aspect of the great constitutional duty with respect and attention required by law and have reached the decision after carefully weighing the house managers and defense arguments and reviewing the evidence in the house that included well over 100 hours of testimony from 17 witnesses."

so he would be in effect no. bill hearn in new york, mo elleithee, along with martha maccallum, jim trusty, how significant could this be? >> i think it is significant. by the way that the question is being framed is sad. i think that one of the dash if you take donald trump out of the issue, the house defense team fr the president made a very good case that mrs. pelosi, cheapening the process. the process started, did not even start with the vote, but started with a press conference from the speaker. i always thought it is part of the senate's job, not only to acquit president trump. i do not think that the substance of the charges -- i agree with andy goes to impeachable approaches, but yes, the house can make its own

rules, but the senate can show some different approval, and i think they have to get some disincentives for this to happen. it will be presidents after donald trump is this the way we want to go after them? >> set a timetable if you continue past this week. >> the big question is not just a witness question for witnesses, but how long will the trial go? and there a lot of people that want the republicans to take the heat. >> bill: i want to get you in here, what about chuck schumer talking about a battle of witnesses? >> both sides are trying to play this game and count the votes and it seems like it is up in the air, but then momentum might be shifting towards no witnesses. we will see how that plays out. it is really interesting that every question coming from the republicans or at least most of the questions are focused on the process. they really want the child to be about the process as opposed to

the substance. but there is one subnet instead of a point that was made that is worth reflecting on. that's when alan dershowitz on behalf of the defense and behalf of the president made the argument that every politician believes that their election is in the national interests. and therefore, if they do something to benefit their election and say that it is in the national interest, that cannot be impeachable. that was a remarkable substantive point to make on behalf of the defense. and using alan dershowitz's logic, nixon's team could say the watergate break and cover-up were designed to help his election and therefore were in the national interest and therefore not impeachable. and so, i think it is important that we not lose sight of the substantive back and forth, and because we are talking about whether or not the these vulnerable republican senators will feel any heat back home if they vote against witnesses, i

do not think that is where the heat comes from. the heat comes on the substance. and if that is argument made against them, than it is a different situation. >> bill: the from alan dershowitz: win -- every president believes the election is in the public interest, i see how you can see the argument, beth from maccallum, i thought the whole question about in the nine and f you can address it. and adam schiff took the answer, he said, we have to hurry, because the president tried to take that election, referring to 2020. how far is that argument going? do you believe? >> it is an argument that they have pushed really for quite some time. it was the argument that was on the house side when they were talking about why they did not have time to subpoena john bolton and why they did not have time to push some of these witnesses, because they were so afraid that the president was going to do this again.

in their words. and so then we had a 33 day gap between bringing -- delivering the articles over the senate side which had a lot of questions about how much urgency there was on that. and i think jim trusty said, they have not established that beyond the alarmist phrase that is happening in presenting any evidence that that is what is happening. >> bill: a minute left, i thought this point was important too, about an incomplete case being brought to the senate and not thoroughly investigated on behalf of the house. the president's attorney said that it will not be just one witness. it will go on for months. that argument goes where next? >> it is important for procedural reasons for sure, because the senate institutional interest is that it not -- it's role is to control impeachment trials. it does not want to be a continuation of the house grand jury, and i think that the president's lawyers, attorney

philbin in particular made a great point on that. >> bill: we will do a all again later. thank you for being here, and thanks to everybody at home. it looks like five and a half hours left, but the dinner break could go deep into the night. >> neil: thank you very much, bill. we are monitoring the things on the hill. with all the things back and forth with the democrats are saying is the growing debate as to whether we will ever see witnesses. as 24 to 48 hours from now. let's get an idea of what we can expect in this hour. >> they should come back anywhere from 2 to 3 minutes. on the long end, around four: 11 in the east. the timing is never swift. they are not going to come back at 4:00. it takes a long time to get a hundred people in the same room. we will continue with these