crush it. jedediah: i have a chance that it's not just sports. ll -- will: let's go head to head. pete: have a great saturday, everybody. neil: it could all end today. we are following day 5 of the impeachment proceedings with news that mitch mcconnell, republican senate leader who wanted his members to vote their conscious, apparently mitch mconel voted his that he would likely vote to acquit the former president at the impeachment trial this amid a back and forth as to whether witnesses are going to be called at this trial. republicans were told they are going to wait for democrats and whether that's necessary, rhode island senator whitehouse, said he would like witnesseses but would leave it up to house

impeachment managers. this could make a much longer affair than it could be. without that, this could be wrapped up later today. each side will died whether donald j. trump instigated a riot, given his words, galvanized that and whether that should threaten him from holding office again. that's what's at stake in the next couple of hours. again, later today we could get a vote, but so much hinges on the push for witnesseses and the latest move on mcconnell says i think we acquit. do others follow suit. does that jeopardize votes that democrats had to get from republican to convict the former president. anyone's guess. let get the news from chad. what are we in for today?

chad: leader will vote to acquit because some thought that mcconnell is institutionalist and vote to convict. that would not be the case. that means that mcconnell won't provide air cover for republicans who want to convict. had mcconnell voted to convict, he would be in the minority of his conference and we saw how some republicans wanted to balance liz cheney a couple of weeks ago. for the fourth time the senate will render judgment on american president. second impeachment verdict in the year's time for former president trump. we don't believe they will get to 67 votes necessary for conviction but you could have several republicans voting to convict, the closest the senate has ever come to convicting a president since andrew johnson in 1868. johnson narrowly missed conviction by one vote and last year mitt romney became the first senator from the same

party of the president on trial to vote for conviction in an impeachment trial. you could have several republicans vote guilty today. we expect closing arguments later on today. up to 4 hours. senators don't debate this on the floor of vote by midday or early afternoon, but they have to figure out first whether or not they are going to hear from witnesses and that's probably the first order of business in a couple of moments. that could trigger arguments from house managers, defense attorneys and even votes and as you say sheldon whitehouse wants to suspend and the senate is about to come in here in just a moment. you can see the house managers to the left of the screen taking position and the president's defense counsel to the right. request for witnesses, that boils down to the math. that's always the case on capitol hill. chuck schumer, the majority

leader said it's up to jamie raskin, but if you look at the resolution for the framework of the trial, it's up for the senate to vote and if there's 51 votes for witnesses and evidence, guess what, you probably stretch out the trial. they're about to start in a few moments. patrick leahy bringing things to order right now. neil: chad, thank you very much. he wants to hear from kevin mccarthy and newly alabama senator tuberville to explain phone calls with donald trump at the time of the riots on january republicans said that f they go that route they too would want witnesses including the mayor of washington, d.c. so you can see the back and forth, considerable time to all of this. now, today 5 of the impeachment proceedings, the trial of donald

j. trump. >> thank you, mr. president, senators. over in the last days we presented overwhelming evidence that establishes the chargeses of article of impeachment. we have shown you how president trump created a powder keg, lit a match and continued incitement even as he failed to defend us from the ensuing violence. we supported our position with images, videos, affidavits, documents, tweets and other evidence leaving no doubt that the senate should convict. we believe that we have proven our case but last night congresswoman jamie herrera butler of washington state issued a statement confirming that in the middle of the insurrection when house minority leader kevin mccarthy called the president to beg for help, president trump responded and, i quote, well, kevin, i guess these people are more upset about the election than you are. needless to say, this is an

additional critical piece of corroborating evidence further confirming the charges before you as well as the president's willful dereliction of duty and desertion of duty as commander in chief of the united states and state of mind and further incitement of insurrection on january 6th, for that reason and this is the proper time to do so under the resolution of the senate adopted to set the rules for the trial, we would like to opportunity to subpoena congresswoman herrera regarding her communications with house minority leader kevin mccarthy and to subpoena her contemporaneous notes that she made regarding what president trump told kevin mccarthy in the middle of the insurrection. we would be prepared to proceed by zoom deposition of an hour or less just as soon as congresswoman herrera butler is available and then proceed to the next phase of the trial

including the introduction of that testimony shortly thereafter, congresswoman butler further stated that she hopes other witnesses to this part of the story, other patriots as she put it would come forward and if that happens, we would seek the opportunity to take their depositions via zoom also for less than an hour and subpoena other relevant documents as well. >> thank you. senators, good morning. and good morning to the american people. the first thing i want to say on the issue of witnesses is that the house manager just got up here and described the articles of impeachment and that the charges. there is no plural here. that's wrong. there's one article of impeachment and there's one charge and that's incitement of

violence and insurrection. what you all need to know and the american people need to know that as of late yesterday afternoon, there was this stipulation going around that there weren't going to be any witnesses, but after what happened here in this chamber yesterday, the house managers realized they did not investigate this case before bringing the impeachment, they did not give the proper consideration and work. they didn't put the work in that was necessary to impeach the former president. but if they want to have witnesses, i'm going to need at least over 100 depositions, not just one. the real issue is incitement. they put into their case over

100 witnesses, people, who have been charged with crimes by the federal government and each one of those, they said that mr. trump was a coconspirator with. that's not true. but i have the right to defend that. the only thing that i ask if you vote for witnesses, do not handcuff me by limiting the number of witnesses that i can have. i need to do thorough investigation that they did not do. i need to do the 911-style investigation that nancy pelosi called for. it should have been done already. it's a dereliction of the house

managers' duty that they didn't. after stipulation had been worked out, they want to go back on that. i think that's inappropriate and improper. we should close this case out today. we have each prepared our closing arguments. we each -- i had 8 days to get ready for this thing. but we each had those 8 days equally together to prepare ourselves and the house managers need to live with the case that they brought. but if they don't, please in all fairness and in all due process, do not limit my ability to discover discover, discover the truth. that would be another sham. and that's the president's

position. my position. >> mr. raskin. >> thank you, mr. president. first of all, this is the proper time to talk about witnesses. this is completely within the course of the rules set forth by the senate. there's nothing remotely unusual about this. i think we've done an exceedingly thorough and comprehensive job with all the evidence that was available. last night this was breaking news and it responded directly to a question that was being raised by the president's defense counsel saying that we had not sufficiently proven to their satisfaction although i think we've proven to the satisfaction to the american people certainly that the president after the breach and invasion took place was not working on the side of defending

the capitol but rather was continuing to pursue his political goals and the information that came out last night by congresswoman butler apparently backed up by contemporaneous notes that she had taken, i think will put to rest any lingering doubts raised by the president's counsel who nows says he wants to interview hundreds of people. there's only one person the president's counsel really needs to interview and that's their own client and bring him forward as we suggested last week because a lot of this is matters that are in his head. well, why did he not act to defend the country after he learned of the attack? why was he continuing to press the political case, but this piece of evidence is relevant to that. and finally, i -- i was a little bit mystified by the point about the articles of impeachment which i referred to.

the dereliction of duty, desertion of duty is built into the incitement charge obviously. if the president of the united states is out inciting a violent insurrection, he's obviously not doing his job at the same time. just like if a police officer is mugging you, yeah, he's guilty of theft and armed robbery, whatever it might be, but he's also not doing his job as a police officer so it's further evidence of his intent and what his conduct is. >> if i may? >> counsel. >> first of all, it's my understanding it's been reported that mr. mccarthy disclaims the rumors that have been the basis of this morning's antics but really the rumors that have been the basis of this entire proceeding. this entire proceeding is based on rumor, report, innuendo and

they didn't do their work, just like what happened with mr. lee 2 or 3 nights ago, some supposed conversation had happened and they had to withdraw that, they had to back off of that because it was false. it was a false narrative. but it is one article of impeachment, yeah, they threw a lot of stuff in it in violation of rule 23. rule 23 says you cannot combine counts. it's a defect this their entire case. it's one of the four reasons why you can devote -- vote to acquit in this case. jurisdiction, rule 23, due process and the first amendment. they all apply in this case. let me -- let me take my own advice and cold the temperature in the room a little bit.

[laughter] >> it's about the incitement. it's not about what happened afterwards. that's actually the irrelevant stuff. , that's the irrelevant stuff. it's not the things that were said from the election to january 6th. it's not relevant to the legal analysis of the issues that are before this body. it doesn't matter what happened after the insurgence into the capitol building because that doesn't have to do with incitement. incitement is -- it's a point in time, folks -- it's a point in time where the words are spoken and the words say, implicit i will say, explicitly, commit acts of violence or lawlessness.

and we don't have that here, so for the house managers to say we need depositions about things that happened after, it's just not true, but -- but if he does, there are a lot of depositions that need to be happened, nancy pelosi's deposition needs to be taken, vice president harris' deposition absolutely needs to be taken. and not by zoom. none of the depositions should be done by zoom. we didn't do this hearing by zoom. these depositions should be done in person, in my office, in philadelphia. that's where they should be done. [laughter] >> i don't know how many civil lawyers are here but that's the way it works, folks, when you

want somebody's deposition you send a notice of deposition and they appear at the place where the notice says. that's civil process. i don't know why you're laughing. it is civil process. that is the way lawyers do it. we send notices of deposition. >> i would remind everybody that we will have order in the chamber during these proceedings. >> i haven't laughed at any of you and there's nothing laughable here. he mentioned my client coming in to testify, that is not the way it's done. if he wanted to talk to donald trump, he should have put his subpoena down like i'm going to slap subpoenas on a good number of people if witnesses is what is required for them here to try

to get their case back in order which has failed miserably for four reasons, no due process here, they have completely violated and ignored and stepped on the constitution of the united states. they have trampled on it like people who have no respect for it and if this is about nothing else, it has to be about the respect of our country, our constitution and all the people that make it up. and so i ask when considering or voting on this witness matter and to be clear, this may be the time to do it but, again, everybody needs to know backroom politics and i'm not so good at

it or adept at it either, but there was a stipulation, they felt pretty comfortable after day 2, case was tested on day three. now is the time to end this, now is the time to hear the closing arguments, now is the time to vote your conscious. thank you. >> mr. raskin. >> we were involved in no discussion about the stipulation and i have no further comment, thank you, mr. president.

>> i would remind -- i would remind everybody as chief justice roberts noted on januare trial, all parties in this chamber must refrain from using language that is not conducive to civil discourse. i listened to chief roberts say that and i agreed with them and i thought i would repeat it as i did last night.

so the question before us is whether we should be in order to consider debates under the rules of impeachment. any motion to subpoena witnesses or documents? the yeas and nays have been made. is there a second? appears there is. call the roll. >> mr. barrasso? >> no. >> mr. bennett? >> aye. >> mrs. blackburn? >> no. >> mr. blumenthal? >> aye. >> mr. blunt? >> no. >> mr. booker? >> aye. >> mr. boseman? >> no. >> mr. braun? >> no.

>> mr. braun? >> aye. >> ms. cantwell? >> aye. >> mr. garden? >> aye. >> mr. carborough? >> aye. >> mr. casey? >> mr. cassidy? >> no. >> ms. colins? mr. coons? >> aye. >> mr. cornyn? >> no. >> ms. cortez masto? >> aye. >> mr. cotton? >> no. >> mr. kramer? >> no. >> mr. crepo? mr. cruz? >> no. >> mr. dane? ms. duckworth? >> aye.

>> mr. durbin? ms. ernst? ms. feinstein? >> aye. >> ms. fisher? >> ms. gillibrand? >> aye. >> mr. grassley? >> no. >> mr. haggerty? >> no. >> ms. hasen? >> aye. >> mr. hawley? >> no. >> mr. heinrich? >> aye. >> mr. hickenlooper? >> aye. >> mr. hogan? >> no. >> mrs. heitsmith? >> yes. >> mr. johnson? >> no. >> mr. cane? >> aye. >> mr. kelly? >> aye. >> mr. kennedy?

>> no. >> mr. king? >> aye. >> ms. klobuchar? >> aye. >> mr. lankford? >> no. >> mr. leahy? >> aye. >> mr. lee? >> no. >> mr. luhan? >> aye. >> mr. manchin? >> aye. >> mr. marcy? >> aye. >> mr. marshal? >> no. >> mr. mcconnell? >> no. >> mr. menendez? >> aye. >> mr. merkley? mr. muran? >> no. >> mr. murphy? >> aye. >> mr. ossoff? >> aye. >> mr. padilla? mr. paul? >> no. >> mr. peters? >> aye. >> mr. portman?

>> no. >> mr. reed? >> aye. >> mr. reed? >> no. >> mr. romney? >> aye. >> ms. rosen? >> aye. >> mr. rounds? >> no. >> mr. rubio? >> no. >> mr. sanders? >> aye. >> mr. sass? >> aye. >> mr. schumer? >> aye. >> mr. scott of florida? >> no. >> mr. scott of south carolina? >> no. >> mrs. shahin? >> aye. >> mr. shelby? >> no. >> ms. sinema? >> aye. >> ms. smith? >> aye. >> mr. sullivan? >> no. >> mr. tester? >> aye.

>> mr. thoon? >> no. >> mr. tillis? >> no. >> mr. toomey? >> no. >> mr. tuberville? >> no. >> mr. van holland? >> aye. >> mr. warner? >> aye. >> mr. warnock? >> aye. >> ms. warren? >> aye. >> mr. whitehouse? >> aye. >> mr. wicker? >> no. >> mr. widen? >> aye. >> mr. yon? >> no.

>> senators voting in the affirmative? baldwin, bennett, blumenthal, booker, brown, cantwell, carper, casey, colins, thoon, horono, cane, king, klobuchar, leahy, luhan, manchin, markey, murkowski, ossoff, padilla, peters, romney, rosen, sanders, sass, schumer, shaheen, simena, smith, tester and holland, warner, warnock, warren,

whitehouse and widen. senators voting in the negative, barrasso, blackburn, blunt, boseman, cassidy, cornyn, cotton, kramer, crepo, cruz, giants, ernst, grassley, hawley, johnson, kennedy, language further, lee, marshal, mcconnell, maran, paul, portman, rubio, scott of florida, scott of south carolina, shelby, sullivan, thoon, tillis, toomey, tuberville, young. >> mr. president. i would like to change my vote to aye.

>> mr. graham. mr. graham, aye. >> mr. president, ms. sullivan. >> just the point of inquiry, there's a little confusion. without a vote on one or many witnesses. >> debate is not allowed. >> it's not debate. >> mr. president, the point of inquiry on what we just voted on. >> that is -- i'm advised that is not allowed during the vote.

>> the points of order and debate are not allowed during the vote and it's established senate procedure. neil: very quickly, i want to explain the significance, 5 republican senators including a switch at the last second by lindsey graham have voted in favor of considering witnesses. they include lindsey graham and sasse of nebraska, mitt romney of utah, susan collins of maine and senator murkowski of alaska all want witnesses and it was spurred by the kevin mccarthy conversation that came to light he had with the president in the middle of the riots going on on

capitol hill that day on januar. he shared that conversation with congresswoman jamie herrera butler. the republican from washington. you're right to remember she was one of ten republican congressman who voted to impeach the president of this, would see the trigger, push for getting, you know, witnesses and to go ahead and question them, whether they have done it in person or, you know, via zoom, but there lies what could be an extensive lengthening of this entire matter. let's go back to the senate floor.

>> i know.

>> on the question of whether shall be in order to consider debates on the rules of impeachment, any motion to subpoena witnesses or documents, the motion has agreed to by vote of 55 to 45. majority leader. >> mr. president, i suggest the absence of a quorum. >> call the roll. >> mr. baldwin? >> right. neil: all right, significant development, surprise here where 5 republicans including lindsey graham, a close confidant and supporter of the president is probably a good idea to allow

witnesses, sasse of nebraska, mitt romney of utah and pat toomey. the reason it's a significant development it could significantly lengthen the entire process. you have been hearing from the president's lawyer or team, you make this move, i'm going to have to depots a lot of folks and maybe the 100 or more, i'm going to want to do it in philadelphia and got chuckles over that. he was saying that's my right and that's the way these types of procedures go, but, again, these type of procedures here at the point that we are a bit unprecedented. a lot of this was borne of this news of a call that the house republican leader kevin mccarthy had with the president, donald trump, at the time in the middle of this siege at the capitol in which he said you have to call them off, mr. president, you have to call them off. he relayed this conversation to

republican congresswoman jamie herrera butler, you might recall, she was one of ten republican congressmen who voted for impeachment in the house. mccarthy had apparently told her that he had told the president to publicly and forcefully call off the riot. the president reportedly said in response, this is coming from congresswoman herrera butler's account of that conversation, well, kevin, coming from donald trump, i guess these people are more upset about the election than you are. the news of that spread like wild fire. there's no confirmation of this, lindsey graham wanted that to be investigated a little more but there obviously enough over it that lindsey graham himself is now interested in witnesses, so this changes a lot of things. chad on how significant so. what are we looking at chad? >> this is an earthquake on capitol hill. this really shifted the plates

dramatically. what this means and if you look at the actual impeachment rules, the framework set up for this trial, that means that you're probably going to have the trial go dark for a couple of weeks if they do it by the book and have to have witnesses and depositions again, you had jamie raskin, impeachment by zoom and he said, no, we will do that in philadelphia, he emphasized each sylabul and we had a vote to withins last night and there was two republicans that voted yes and you had the gateway vote where the senate trial took off a week or so in 1999 with president clinton. you know, that was a little more baked into the cake.

we thought today maybe even by late morning, mid-day we would be through with final arguments in this case and barring anything unexpected here, they could be, you know, breaking this off, having depositions coming back later in february and keep in mind how this runs head long into the issue of trying to finish a coronavirus bill and i wouldn't be surprised that some of the republicans, they saw that democrats were willing to go to the mat and request witnesses in the case, jamie raskin and chuck schumer, he kept deferring to raskin, we will see what impeachment leader has to say and once raskin opened the door, republicans said, okay, we will jump on the band wagon here because we see an opportunity to drag this out. some of that is probably steeped in the idea that they do want to learn more about the conversations and also see what was afoot that day but some of it is also political frankly, okay, this is bad politics for the democrats. they think it was bad obviously for the democrats to even pursue

this impeachment trial expose facto. so much what they do in capitol hill is scripted. we go in and we know what the scores are in eighth or ninth inning. today we came in and we don't know how it's going to end. that's what's significant. we've only had a few days on capitol hill where the apple card is so upset because you expected to go one way and dramatically changes and that's where i talk about the mitt call tectonic plates shifting dramatically here this morning, neil. neil: you know, i'm wondering, kevin mccarthy himself ever confirmed this -- this so-called conversation that was reportedly shared with the congresswoman? chad: you see, that's something that's up in the air. it's brand new we don't really know. keep in mind kevin mccarthy, widely reported that he had a

screaming match with the president of the united states trying to get the national guard up here while his office was being ransacked and he said later on the floor when the house reconvened to certify the electoral votes that he was the worst day he had ever seen in congress. he was a staffer for bill thomas long before he was a congressman. bill thomas, republican from california and chaired the ways and means committee and that's a big question here. so this is why you have just not deposing these witnesses but if you look at the section of the resolution establishing the framework for this impeachment trial, it talks about discovery, discovery is a legal term that you often see applied in a court of law where both sides go in and say what did this person know and what piece of evidence or documents or pieces of paper, you get a time frame together, something like that. you know, that takes time. they -- this is one of the few times in this very political process and impeachment trial the founders intended an

impeachment trial to be a political process actually start to mirror what goes on in a court of law and what is also shifted here is that the impeachment managers who were harolded may is lost control. this goes to mike and the president's attorneys, we will have nancy pelosi in my office. what this means they will treat this like a regular convention courtroom trial and that's different than a trial that you have in the senate and so maybe, you know, the impeachment managers as i say lost a little bit of ball control and that's significant and that's why this is so organic and why it's shifting this morning. neil: thank you, my friend, very much and we will go back to you repeatedly. significant development here, really the surprise was that 5 republicans are now on board wanting to hear from witnesses and the more significant development was that lindsey

graham, in the roll call vote started out as a no switched to a yes given his closeness of the president's support, could that inspire republican senators who might have voted to acquit, hear witnesses and see where the process goes, way too early to tell. let's go to jonathan turley, constitution law professor, much, much more. what do you think the significance donovan as far as where the trial goes next? >> it's all perfectly bizarre to have this sudden surprise witness come up literally before closing arguments. you're not supposed to have these types of perry mason moments, wait, i have evidence to give. this is a member who was aware of this conversation for weeks presumably other members were aware of it. so in a normal court of law a

judge would go absolutely ballistic to have a witness appear at that late stage. now having said that, i've always said that the house should be able to try its case and generally always favored witnesses in all of the presidential impeachments, but there's a real question here about how to do this logistically. there are a dozen witnesses that could give direct testimony on what the president said and did during this critical period. the house had four weeks after the snap impeachment and didn't call one of them. instead they wanted to try his case on the circumstantial evidence that was presented when it came to the former president's state of mind. so all of this is rather incoherent as to what the strategy really is and today's argument was really quite embarrassing, the defense counsel asking why are you laughing is never a good sign for any lawyer. i mean, his suggestion that this

is done in philadelphia was absurd. when i was lead counsel in impeachment, we did a great number of depositions before the senate trial, all on capitol hill. that's the tradition. but he's also allowing himself to get upset into casual. it's not a good thing when you're representing someone accused of violent incitement when you seem to have anger management issues in front of the senate and, you know, the whole thing just seemed to get out of control. neil: jonathan, great analysis. only you and i use the perry mason. [laughter] neil: obviously democrats have their -- they want to talk to congresswoman butler and they want to talk to tuberville of

alabama that was apprizing the president and whereabouts of mike pence and that would trigger republicans wanting to hear among others in washington, d.c. and on we go. i'm just wondering here, it seems like the genie is out of the bottle and nothing puts the cap on any time soon, how do you see this play out? >> this fall into the category, be careful what you ask for. it was strange that the house didn't call any witnesses before weeks to lock in the testimony. it was change that they wanted to try this circumstantially on the state of mind of the president. now they're opening the door to bring in these witnesses who may actually offer conflicting accounts as to how the president appeared and what he did. there's so many unanswered questions about when the national guard was first offered, why it was refused,

whether there was any delay in their deployment from the white house. those questions have answered because of both ways. if they are going to truly allow the discovery and the testimony that the house never bothered to secure. this could drift in uncertain directions. neil: so let me ask you about where democrats are on this, all they wanted to prove is that essentially donald trump instigated, the insurrection on capitol hill and how capitol police responded afterwards. i'm not sure that they're going to care that they have enough evidence now and they talk to congresswoman who voted for impeachment the house and pin her against kevin mccarthy who

might or might not confirm the recounting that he had with the president that he should call his supporters off and all of that. bottom line, you're the constitutional expert, jonathan, but i see it as a mess and it's going to get messier. >> it's a circus. this is enough to make barnimum bailey blush. the defense counsel seeming to be working through anger management through the entire country and some of the senators that voted for witnesses said a few hours ago said they didn't want witnesses, but this is one of those issues of you have to go all the way if you're going to respect due process. so having witnesses for the house necessarily must allow witnesses for the defense. if they start to limit it, it

becomes manufacturing a verdict. so they have made a critical choice here that could transform this trial and what's fascinating is most of these politicians are risk adverse, you know, they don't like to take votes that they don't know how they will play out politically. this is one of the most remarkable votes i have seen in working with congress for decades. there's no way they know how this one is going to play out if they are really going to allow witnesses. the only way they can control the risk is to allow the witnesses the house want, it may want but severely limiting the witnessing from the defense. and by the way, the witnesses for the defense, putting aside the bizarre statement about having these depositions done in philadelphia, the witnesses essentially calling are not people like pelosi and once again i'm confused as to what the defense is trying to do.

there are four witnesses that can be called to determine the president's state of mind and i think that we need to look objectively at whether we want questions to be answered or whether this is just more political kabooky. neil: very interesting, seems like the republican list would be more like handle and try to handle the insurgency at the capitol and whether they dropped the ball and once it was on, the democrats view, the house views that it was instigated by donald j. trump. jonathan, i'm sure we will be coming back to you later. the senate has voted 55 to 45 to go ahead and subpoena witnesses. and this could add considerably to that 5 republicans voted to do so, 45 though i should point out did not including my next guest senator roger marshal, kansas senator republican.

senator, what did you make of your 5 colleagues including lindsey graham who thought differently than you? >> well, i think lindsey has got something up his sleeve there, but this is a political hail mary and president trump lives rent free in the house of democrats. this is a hail mary, we should be focused on getting vaccinations on people's arms and getting the economy going on again. a year ago, nancy pelosi, same game, impeachment trial, inviting people to chinatown. a year later we had the virus on the long and here we are in aprolonged impeachment hearing. if i can make one more point that america needs to realize, one article of im-- appellant, did donald trump incite a crowd into a riot and the prosecutors here proved that that's not true. that for weeks and months before the event, that group was forming and premeditated and

minutes before it started, political hail mary, very frustrating. we have to get back to the american people. neil: 5 of your colleagues are willing to consider the hail mary. kevin mccarthy has not confirmed the supposed conversation with congresswoman herrera butler in which she recounted the president had told him in the middle of the riot, well, kevin, i guess these people are more upset about the election than you are. if that is true, if the president did say that, senator, would you be angry, would you say that maybe these actions today are justified? >> well, look, i would be angry but that's not the president has been charged with. this would be -- think about due process. if you're in the middle of a trial and in the middle of the

trial they will charge you for robbing a bank. we know that's not true process. 3 constitutional issues here that the prosecutors have not adequately address, can you impeach after leaving office and freedom of speech and -- neil: senator, i'm sorry i wasn't clear. i know what you're saying about did he instigate it, but in the middle of it all when it was doing on, he did nothing to stop it. would that add a level of doubt to your views here that the president could have gotten this under control but if this conversation is true, he did nothing to do so? >> look, there's more questions than answers here and that's why we need a due process. there's too many facts out there to begin to speculate on what the president knew. the real question is what did nancy pelosi know and when did she know it. obviously with all of the intelligence here, why didn't we beef up security the day of the riots. neil: senator, obviously this comes at a time when president

biden is trying to get $1.9 trillion stimulus plan out. i know you've had concerns about the size of that, but at the very least this could delay action on that, right? i know that all of you guys can walk and chew at the same time, that rarely seems to be the case. i guess what i'm asking you, is the stimulus now likely put off because of this? >> i assume it will be. i've not seen the senate be able to walk and chew gum. we have been trading water since the day we were sworn in. but the good news is that we have the virus on the run. this takes our eye off the ball and we should be vaccinating in people's arms. let's get those in people's arms. we could have herd immunity by april or may if we do our job. you're spot-on, this is going to delay things going forward. for instance, we had the secretary of agriculture to confirm, secretary of

agriculture has $1.5 billion of previously earmarked cares dollars there. that money can be going to food banks, getting food on the tables of people that need it the most but we are locked down right now. neil: senator, thank you very much, i know that you've had a very busy morning, a long one at that. we will see what happens. i want to go to the former georgia congressman, robert, very good to have you with us. thank you on a saturday, no less. what do you think of this, so many of your old colleagues who are looking at being open, at least 5 republican senators to witnesses and potentially a much, much longer trial than we first thought? >> what we are seeing on the part of the impeachment managers, neil, i think is a recognition very late in the game that they have not made their case, so what they want to do is to drag this out so they can keep the issues alive, keep

beating up on mr. trump and keep the issue focused on that rather than other things. it also point outs, neil, how different this proceeding is from a real trial. the witness that they are proposing to bring on is the hearsay witness. that normally would not be allowed because the actual person who spoke the words or heard the conversation, that is mr. mccarthy is available. the timeliness of this would cause a trial judge to deny the motion for witnesses. this is -- now we have this notion that, well, what we are really charging the president with is dereliction of duty. that has nothing to do with the article of impeachment and it's utterly irrelevant to the issue of the impeachment charge.

neil: so congressman, let's say kevin mccarthy comes out and confirms what jamie herrera butler said, the account of that conversation and the president did say that more people are upset about the election than you are. just for you, not as a republican, not as a former impeachment manager in your own right, would that be a game-changer in your eyes that in the middle of this uprising on the hill, if true, again, to your point, kevin mccarthy hasn't commented on this, the president appeared to do little to stop it, in fact, he sounded like he was embracing it? >> i don't think that's the case. it's a real -- it would be a real jump for senators to read that into it. to me it's utterly irrelevant and really if you look at the words that purportedly were said now in a hearsay context, it

cuts both ways. if in fact, the president said something to the effect like, well, these people seem more concerned about the election results or the fraud than you are, that to me can be spun as an indication that the president wasn't in control of this at all. so, you know, this is a can of worms that's been opened here and who knows where it's going to go, but it's a real shame. neil: no, you're right about that. it could extend obviously to alabama, senator tuberville being on the job only a few days, sir, when he got on the phone with the president to let him know about the evacuation taking place and mike pence being secreted out of the capitol. these are the type of things that, i guess, the house managers are trying to build that show a distant, i don't care president. and i know the -- the article, a single article of inciting an

insurrection, but does all of this or what they might or might get from some of the individuals that they want to talk to change where this trial goes now? you, of course, learned very quickly in the case of going after bill clinton what started as mirky business deals evolved into things far different. is this following that not originally script pattern? >> i don't think it's going to sway any votes. it might play to the emotions with some senators that are upset with trump and how he behaves generally and confirms how he behaves generally which is not always in the best light, but i don't see changing any minds going down this road because it's really irrelevant. it might be interesting. some of the senators might be

interested in hearing about it, but as to the substance of the charge itself and what he vote to convict a former president, incitement to riot, it's utterly irrelevant and has nothing to do with it. neil: on procedure here if you indulge me, one of the things i really didn't understand is mitch mcconnell coming out before any of this trance spiree -- transpired saying i'm going to vote to acquit and i'm sure that might have given cover to republican senator that is they could go that route because, well, the boss has gone that route. does this change the dynamic and maybe even mitch mcconnell's because this witness testimony will be coming in some cases it might be or might not be damning. i'm wondering whether the votes that we thought might be the case might not be the case. >> very difficult to figure tha

devolve. >> it's difficult to figure that out, neil. at the beginning senator mcconnell told everybody to vote your conscience at least to the republican senators and now he's come back and said he's going to vote to acquit, which isn't really surprising, certainly. the only surprise is this time he waited longer to announce that decision than he did a year ago, but i don't think the senator, the minority leader saying that he's going to vote to acquit really is going to sway any votes on the republican side because he's already basically given a get out of jail free card to republicans who might want to vote to convict. neil: bob barr, so good seeing you. you lived through history and you were here for both sides, 20 years ago, a little more than that. bob barr, the former georgia

congressman and former clinton impeachment manager. big news on capitol hill. so much for a quick, tidy and very, very in your face, and out of the history books, impeachment trial that was supposed to be conceivably wrapped up as soon as this afternoon. it will not be. the senate voted 55-45 to go ahead and start looking for witnesses and the depositions will begin in that regard. let's get the read on the significance of all of this with the former justice department prosecutor, much, much more. jim, everything is now changed, isn't it? >> yeah, up is down, down is up. i mean, look, there's been so many issues with process and no matter who you're pulling for in terms of how the ultimate merits are ruled on, this is just an unrecognizable process and it just got stranger. think about it, the house impeachment managers are demanding to put on a hearsay witness, as congressman barnes

mentioned, they don't want firsthand information, they want what would be inadmissible information, first time a live witness-- >> jim, what if they got-- i'm sorry, my friend, and recounting a conversation with kevin mccarthy. and what if they can get kevin mccarthy to confirm what she said? >> number one, they didn't ask. it's interesting that they bypassed the actual direct testimony, but look, i would actually say that there's some marginal relevance, but it's much more relevant if they had charged an actual dereliction of duty, negligence-based crime here instead of what they charged, which is specific intent to cause incitement. look, i don't think they get a lot of bang for the buck putting on a hearsay witness, and i think the threat thrown out by trump's counsel to drag

this into dozens or a hundred witnesses and make this proceeding stretch a lot longer. i just will have to step back and say what a bizarre, unrecognizable spectacle when it is a threat to put on testimony? i mean, that's where we are. we have a proceeding that's been, you know, nice, glossy videos and sound tracks and all sorts of interesting kind of production, but not firsthand evidence and now that's viewed as essential will i -- essentially a problem or a threat. it's kind of strange territory. i have to think during this delay there's a lot of buyer's remorse and wheeling and dealing and we may see a different result if they want to go down that road and perhaps dozens of witnesses that are fought over. neil: it's interesting. you think there's a possibility that they could reverse this stance?

>> i'm no scholar within the congress process, but i think that the threat, as criticized as it may be, throwing out the threat of proposed fits in philadelphia, it's not a bad threat and i think it may be working, wait a minute, we didn't mean to buy off on this where we're suddenly opening the door for dozens of witnesses. as a person who has litigated over the years, if you're losing a trial, you're not necessarily allergic to delay. if you feel this case is not going your way, you know, delay can only get better for you and so, you know, maybe they'll say, okay, fine. if the republicans want to spend a bunch of time deposing people, we'll sit back and see how it plays out. that could be a counterveiling problem, and it might get better down the road, let's see what happens. neil: just to be clear on your

take on this, that the argument for witnesses and hearing from those witnesses and dragging this out actually could benefit the house managers, is that what you're saying? or provide more time for republicans to reassess where they stand? >> well, i think it's-- if i'm the house manager and i'm thinking, 0 being -- okay, i'm pretty sure what the body count is, 44 people said it's unconstitutional and if they're viewing it as acquittal sometimes it's a hail mary approach, my case can only get better. it will be interesting in the course of this afternoon or late this morning because i think the threat is a real threat, but there's a possibility the democrats kind of call the bluff of vander veer and go ahead and we'll drag it out for another few weeks. >> so, his threat to-- as well to depose and talk to

these witnesses, would gather better that and hundred as outlined it. he got a snicker for this, but could he be in his bounds and rights to talk to them in philadelphia, just philadelphia? >> i think he was drawing the point there that in typical civil litigation you do control the forum, so, yeah, you say come to my conference room tuesday at 1:00. now, practically, realistically with the types of people that are talking about being interviewed, i don't think that any of them are going to go quietly into going to philadelphia for these depositions, but i think he was making point like if you really want to transform this thing into a typical trial, there's going to be a cost and part of that cost is discovery and going through this process of deposing witnesses, you know, interviewing, deposing, deciding which ones are going to be put before the tribunal, before congress. so there's a lot that goes into that discovery process and i think he was shouting that out

as a way of essentially saying you're going to drag this on and a lot of people are going to be uncomfortable. neil: jim, essentially inviting witnesses, especially the brouhaha over this alleged call that kevin mccarthy had with the president when the riots were ensuing and calling for the president back to the rioters, no confirmation that the call happened. let's say it did and the president did nothing to dial them back. the way it works in an impeachment trial or proceeding, if there's new evidence can you add new charges? in other words, are -- could the house managers be banking on the possibility this goes beyond a single charge of inciting an insurrection to take it to the next level and doing little to stop that insurrection? >> yeah, i think it's too late for that on a number of levels. i mean, if you ever really wanted to get a court involved that might be the moment where the court gets involved.

three quarters, four-fifths away from the proceeding they decide to change the charging documents. charging documents are about notice, saying how do i defend this case, how do i defend what i'm charged with. and the incitement to cause insurrection, a prescribed limited statute in the federal code. what they've proven has basically been a better case for negligence or even recklessness, that he didn't respond the way he should have responded to this pre-existing planned riot and so, that's a very different type of charge. i would argue that it's not a high crime or misdemeanor anyway, it's not really the stuff no matter how they amend it to be allowed. the bottom line even if you take an expansive view, gerald ford's what high crimes are, and midstream this late in the case it's for a possible amendment or change. they're using language, but for

president trump's behavior. well, that's negligence language not specific intent language. legally, and i guess legally doesn't necessarily carry the day with a punch of politicians, but legally they are not really proving up the charge they have in their charging document and that would be a fatal flaw in a civil case or criminal case, but we're in this gray world of impeachment. neil: one following question, and i appreciate your help on this, jim, i got the impression that michael van der veen was surprised that this witness thing blew up in front of his vase to say nothing to the fact that five republican senators would go along with that push for witnesses and even yesterday, and this morning the expectation this wasn't going anywhere. what do you think changed? >> yeah, hard to know. it really is. i mean, there's obviously some

back-door communications going on and he's a hell of an actor if he was not caught off guard because he seemed genuinely ticked off and really had to respond in kind of a very extemporaneous way with a lot of emotion attached to it. i'm not quite as critical as the professor was. when you're sitting there getting ready for closing arguments, by the way, we want to call a hearsay witness, you can get a little ticked off. i'm not shocked he responded that way, i took it as genuine like he's ready to roll and be done with this thing, but we'll see if his threat to call witnesses gets any traction. neil: well, he's completely renamed philadelphia. it's philly-delphia, changed the way that we see the city with hoagies.

i don't know what's agreed to on the part of the house managers and the president's legal team that it would take a simple majority, for example, to get witnesses on the table here. apparently, that was agreed to. do you think republicans are ruing that day now or that certainly the president's legal team is right now, that the simple majority now brought it to the twilight zone? >> yeah, i think they expected this to not ever go to witnesses. the calculation was the democrats didn't think that would be good for them politically. the danger here, and i disagree with jim who i know well, if you're the president's legal team there are not a lot of witness is that are going to help you. if we look at what happened and bring it back, there is relevance to this testimony of the president calling, and it may be here say first, mr. mccarthy, the speaker may have to testify later, but the preds president in the middle

of the thing and calling folks and saying things in line with people rioting inside the capitol it indicates his state of mind and that state of mind isn't just at that moment, but indicates what he was saying beforehand when he was given the speech. the defense of the president when he said them he didn't mean them to be carried out, didn't mean them to be violent. but later in violence is happening and his inkling isn't to stop it that suggests what his state of mind is even before and i think that's what the house managers are trying to do with this specific testimony. neil: you know, alex, before this erupted and lindsey graham changed the posture on witnesses from a no to a yes, he tweeted out this morning if you want a delay it will be a long one with many, many witnesses. that's probably a given, right? >> yeah, it is and i think that, look, i don't know that that's a bad thing for this country. this is an incredibly unique event. we've had people invade the

capitol during one of the most solemn events of counting the presidential votes. people died. the fact that we're now going to hear some fact witnesses understand what happened more clearly, i don't think that's a bad thing no matter which side politically you're on. we should want to know what happened. the fact we don't have testimony what the president was, the calls. did he call senator tuberville in the middle of a riot trying to look at the election confirmed. that's not a bad thing for this country. neil: just to be clear, alex, help me we'll be going to our chat program what happens now from here. the simple majority to decide witnesses, was that something that the house managers and the president's legal teemu actually decided on and did the president's team err -- didn't play monday morning quarterback, grant you -- but that was a fatal flaw in their

program that they wouldn't have to worry about that? >> the vote that actually happened was to determine whether debate and a future vote on witnesses would be in order. so this was the vote to basically decide whether the rules allowed those future votes. that's now happened and so there will be further debate and votes on specific witnesses or potentially a package of witnesses. so this was sort of, you know the door opening. i think they expected this vote not to happen or at least not to happen this way. and so, the fact that it was taken the an all probably caught the trump defense team off guard. neil: and election, your gut feeling how long this drags on now? >> i think we're going to get at least a few weeks. i think you're going to have a few key players, there's going to be a lot in the background who exactly the house managers now end up calling. i suspect they will try to keep it narrow to the president's actions during the riot. i think they will want to focus on who he called, what he said and the trump defense team is

want to be much broader and they'll have to meet the evidence. the problem for them, it's hard for them to imagine a witness helpful to trump that hasn't come out in the press already and that's coming out in the next two to three weeks. neil: thank you, former u.s. attorney alex little, commenting on huge developments for those of you tuning r just tuning in, 15 minutes after the hour at 11:00 on the east coast of the united states. this impeachment trial has been extended at least another couple of weeks in an amendment to allow witnesses, 55-45 vote and the motion to subpoena witnesses pronto. where it goes from there anywhere, chad joins us on capitol hill. they're raising the possibility, remote that it could be, that they could reverse this and say, you know, we thought better of this

nightmare, both sides, we're not going to do it. unlikely though that is, can they do this? >> you can always do something like this. there's a determine in the senate and you can go back and have to go back and say we viciate that vote or you have all 100 senators agreeing. you can make the sunrise in the west via unanimous consent in the united states senate. they could undo this. they do do that from time to time, but it would be hard. you can't create another article of impeachment, that's set in stone. they have to consider in the framework of this trial the article dispatched from the house of representatives. i want to read to you here, this is the section of the trial framework that pertains what they're going through. this is section seven of the trial framework, no testimony shall be admissible to the senate unless the parties had opportunity to depose the witnesses to conduct and appropriate discovery.

that's why we think this could go on for weeks here where they have opened this door that they could have witnesses and it begs the question, who do they have in? when you talk with house speaker nancy pelosi and that's who mike van der veen mentioned by name here, this becomes the defacto investigation as to what was the posture at the capitol. was nancy pelosi, was she telling the former sergeant at arms paul irving, you know, play it pretty straight. we don't want bad optics, national guards, troops in fatigues. that could come out. you learn more about what was the president of the united states saying to kevin mccarthy. what was kevin mccarthy saying back to him. do they depose someone like mike pence? this becomes the investigation event. general honore, a report is due in mid march and a lot could be

what they find out in the interviews if they open the door up. this is very significant, but again, you know, you have to wonder if democrats, did they find some sort of a smoking gun here that they think, you know, could actually sway republican senators, something so malevolent in the conversation with mccarthy or something pertaining to his disposition of mike pence when pence was here with the nuclear codes at the capitol when it was under siege, is there something they think could switch votes? that's unclear and we don't know. that's the shell game that goes on between counsel at a stage like this because you don't quite know what the other side. i think when you say that mike van der veen was caught off guard, i think there's something to that. we thought, again, a small chance they might have witnesses or have this debate about witnesses and that would be that. this is why it was interesting to note that chuck schumer, the democratic leader was being so cagey saying it's up to jamie raskin, the senate is tied at

50-50, a tie vote by rule loses in the united states senate, but when you have the republicans on board they feel it's probably a good opportunity for them because, a, and maybe different viewpoints from some of the senators, people like susan collins and ben sasse. particularly ben sasse, critical of the president's actions on january 6th saying this might be a bad thing and it might be somebody who would be willing to convict. that's a problem. but when you look at someone like lindsey graham, he might be saying, oh, here is an opportunity for me to bring up something on the democrats, or what pelosi knew or what was the security posture. did they not have the proper setup at the capitol on the 6th of january. that's significant. and that's the question of the investigation, that goes into the security issues at the capitol here that we don't have a lot of answers on so far, neil. neil: you know, you mentioned lindsey graham and i'm hearing that he will be chris wallace's guest on fox news sunday tomorrow and it will be

interesting to get his thinking what prompted a no vote to turn into yeah, let's get the witnesses going. might have something up his sleeve. and who would be among the first witnesses? a lot mentioned about the congresswoman who spoke to kevin mccarthy, but also tommy tuberville three days into becoming a united states senator talks to the president on the phone on the middle of this going on and the update trying to get mike pence out of the capitol. i believe that tuberville has confirmed the phone call, we'll see. but they're trying to put in place here a president who wasn't concerned about any of these developments that were going on and i'm just wondering how and where the process for which the process the managers build the case and how much instigated and did little to

stop this. >> do you think there's something in the phone call, if they would get a transcript of that or from congresswoman herrera-beutler. and some of the senators as jurors. the interesting things going into this, if we were going to have a vote today to convict or acquit. we thought they would have the highest number of votes to try and convict a president since andrew johnson in 1868. you know, he only hung on by one vote and president trump is out of office and we didn't think they'd get anywhere to 67. we thought maybe the low to mid 50's, 58, 59. if there's damning evidence and they see malevolence on the part of the former president they think maybe they could move that up. i want to calm back to the idea so much of what goes on in capitol hill is scripted. we thought this was going to be locked in stone and we'd have

these arguments and that would be that and democrats would use these votes and use the argument and the horrific video that we saw, you know, for years, frankly in 2022, 2024 and to all republicans who either voted not to certify arizona and pennsylvania, or voted not to impeach or voted against conviction in the senate here. you know, they might have another opportunity here to try to do this, but again, it cuts two ways. we don't know what the public is going to think about this. we don't know if this actually emboldens president trump and keeps him on the screen longer. they're trying to do the coronavirus bill. nancy pelosi said she wants to pass this by the end of february, that's ambitious. i've been told early to mid march and i've been told even the second or third week of march. this potentially side tracks this. and the senate agreement,

you're supposed to do business in the morning and this in the afternoon. who knows. this is rare turf here. the other thing that's significant. if you have a former vice-president and a sitting vice-president at, you know, be witnesses in this case, the speaker of the house, the minority leader, even sitting senators who are jurors in this, keep in mind that, you know, there's some question about lindsey graham and his conversation with georgia officials and of course, he's sitting as a juror. obviously, senator tuberville from alabama and that hasn't been set to be clear. jamie raskin, impeachment manager, he was very specific just to senator herrera-buetler, and then this person comments in on and on and on. and you have to unwind that spool until you get to the end. neil: chad, to your point that

this is unscripted, mark warner, the democratic senator from virginia, just mentioned he was asked about the decision to call witnesses and finally something unscripted, his response. but i do want your take. before any of this sort of blew up, we had mitch mcconnell indicating he would vote to acquit. is it your sense now that that's a bit too hasty and now he's going to have to hear from these people and republican colleagues who thought he might have given them some cover in that regard now might not be so fortunate? what do you think? >> well, it puts mitch mcconnell in a corner a little bit. again, if there's some pretty damning evidence that comes out here and he sticks by his vote or he has to switch his vote. sometimes when you take a position and then change it in politics you really get hammered and that could be the situation there. and mitch mcconnell some people thought was in play, it was a little surprising to hear from mcconnell because he does hold his cards pretty close to the vest.

it also demonstrated that he probably thought that they were going to vote sometime this morning. so that's why that was leaked out this morning that he was establishing his position to send a signal to his conference that he would vote with the majority of his conference because it's clear that it was not going to be a majority of the house republican conference, in other words, a majority of the minority, that was not going to be the case. sometimes that's a political decision. maybe he just wanted to be on the right side politically of his conference because you see these censure motions against some of these officials. that's happened to him in some counties in kentucky, you know, certainly in arizona with officials like cindy mccain, john mccain, liz cheney faced that in wyoming. those are political considerations because the senate impeachment trial is, by definition, a political process, neil. neil: so what is next today? i know they're working on this resolution, i guess, to get the whole witness plan out there and organized. what are they doing right now?

>> two things, and this is why i think it's important to ep coo looking at the senate floor because things happen on the floor. that's why when they finished that vote and they went to a quorum call, this is timeout on the floor. they're actually calling the roll and everybody is there, this happens all the time when they don't know what to do in the senate and something is coming up. that's why keeping an eye on the floor is important and they could come back down. maybe in extreme example say all right, we have an agreement. we didn't mean to do what we did a couple of hours ago, we have an agreement to undo that or undo that in some ways and only hear from herrera buetler and that you could do off stage during a quorum call. i'll go back to the organizing resolution, it says that they start on sunday at 2:00 tomorrow and otherwise, according to the senate impeachment rules you're supposed to meet six days a week, saturdays excluded. you had one of the president's

attorneys say that, you know, he wanted off for shabbat to saturday sundaydown, does that come up next week or they come in and hit it for a few minutes each day because they're doing the depositions or preparing questions, that takes preparations, too, you don't soon down in a room and all of a sudden do it. do they actually need to come in a couple of days here or there for five or 10 minutes and have the trial gavel out and go to other business? i don't know. nobody up here on capitol hill knows because we're on some seriously unprecedented turf with this. neil: just like when you and i were covering andrew johnson in 1868 and we said that. >> that's right. he had 11 articles of impeachment, 11 articles of impeachment were sent over and only voted on-- >> don't get me started. thank you, my friend. jonathan turley is back with us, i believe. and jonathan, they're working on the plan resolution how it get the witnesses set up.

i'm just curious? this environment, obviously both sides have to agree to the resolution and outline how to do this, but they're far apart on-- for example, who to call, how many they plan to call and heard from the president's lawyer, look, if i get a hundred depositions or more or his new pronouncement of philadelphia. and i'm curious what you see coming out of the senate later today. what should we be looking for? >> well, welcome to the improv. this is all improvisational. it's something that i've never seen in an impeachment. it is astonishing to see this careen out of control the way it has just before closing arguments. and what is even more astonishing is that it does note appear that anyone has really thought this through. this was an impulse by moment

and they voted. and i noted early they're risk averse and they send to script the issues so they know how to play out. no one knows how this will play out. and the question is how far do you want to go or how far are you expected to go if you're going to open this door to witnesses. there are at least a dozen material witnesses that the house decided not to call. not just before the impeachment, but more four weeks they did nothing to lock in this testimony. the question will now be, why not call the acting secretary of defense who said that trump told him that you're going to need about 10,000 troops the day before his speech. now, that cuts both ways, doesn't it? it says that trump says you really should be prepared, but it also shows that trump was aware that this could easily

get out of control. you also have this testimony on the tuberville conversation after 2:00. senator lee says that senator tuberville was -- had the impression that trump was not aware of the excellent of the riot in the capitol building and then just at 2:30, not long after that, he issued his tweet saying everyone-- and they send out the timeline in a way that could make this less clear in terms of state of mind. and the last minute scramble because they don't know what cards are in their hand and they never bothered to hold hearings in the house. >> i don't know if there's a term for going nuclear, but got

from van der veen, if they're getting witnesses, be careful what you wish for. this is from earlier with the prospect of witnesses. >> we didn't do this hearing by zoom. these depositions should be done in person, in my office, in philadelphia. that's where they should be done. [laughter]. i don't know how many civil lawyers are here, that's the way it works, folks. when you want somebody's deposition you send a notice of deposition and they appear at the place where the notice says. that's civil process. i don't know why you're laughing. it is civil process. neil: is that right, jonathan? >> it seemed like a scene out of the goodfellows, and do i

make you laugh. the senators shouldn't have laughed. you need to bring clarity to chaos not more chaos and he was raising a valid point, but in my view he was doing it rather poorly. if you open the door for witnesses, then basic fairness requires that you allow defense to call their witnesses to show counterveiling evidence, and neither side knows what the evidence would be because there's no investigation due to the impeachment that the house didn't call any witnesses for four weeks to see what the record really is. what i think these senators are struggling with is a way to thread this needle. they say they want answers to questions. most of the material questions are unanswered. you know, about when the

national guard was called, whether they were delayed, how did trump appear? what did he say? what did he do during the critical period? we don't have a shortage of witnesses on those questions, we know who they are. some of them have spoken publicly, so not to call them is going to make this process look manufactured. and i think that these senators are grappling with that. >> jonathan turley, you wowed us with your last conversation, and the joe pesci conversation, am i funny, ow erudite. and into history in this. let' get the read from the white house what the president might be saying. at least he is at camp david right now. mark meredith knows all. mark, i was immediately

thinking and going to you, what happens with the stimulus plan here? i think in his heart of hearts while he's curious how this whole thing works out, he's probably much more tour yus getting that 1.9 trillion stimulus plan through. i think this just got pushed back. >> the president is at camp david. and we asked the white house if they have reaction to the news out of the senate. they're looking at their message calendar trying to figure out what it means for the covid relief bill something the white house has been pushing publicly and privately. this past week we saw the president meet with governors and lawmakers and focusing on the vaccine and taking questions from voters. there's been a lot of information from the biden information, we're trying to get things done, let the things on the hill play out as it is. and the president spoke about

impeachment yesterday, and this is in term-- so many points what it will mean for legislation. you think about what the white house has been facing since they came into office. this isn't something that's been at the forefront of newspapers and television. this is a topic that hasn't gone away. we've seen the administration try to carry out things like covid, and the president made visits to the pentagon, the national institutes of health. they're trying to say they're focused on the business at hand and let what happens on the hill play out. you made the point they're determined to get this $1.9 trillion package approved by the house and senate and they know how close of a vote this is going to be and with the trial dragging on, neil, what kind of an outreach will this be? will this be something delayed further? for a lot of people this is about economic relief now, and you had some serious questions about what kinds of effects this legislation would have and whether or not they're going to

push for increasing the minimum wage and enhanced unemployment benefits expiring. those deadlines will be there whether or not this impeachment trial goes on or not. these are issues that the white house will continue to face. as you mentioned the president is at camp david. we'll wait to see whether he'll weigh in on this on twitter or weather a white house statement. he's not as active on twitter as the last administration, it's been fairly quiet at the white house today. they did say he was meeting with the national security team, but no indication tied to impeachment. you can believe he would speak with senator schumer and this package overall. neil: great report. one thing in my little nerdy world and you're too sharp, not nerdy to pursue this, but the markets all ended yesterday at records across the board. the dow, s & p and nasdaq and

the big reason for that they thought this whole impeachment trial was not going to go anywhere, it's going to be quick, the president on, you know, would be exonerated or there would be no -- you know, no conviction and now all bets are off and part of their thinking prior, that stimulus plan going to add to the deficit and debt was going to goose the economy and continue the market run and obviously, it's too early to take a look at how stock futures do on this, but i think there's been a 180 here, an expectation that that stimulus plan-- i'm not saying it doesn't happen, but it's not going to happen under the timetable the president wants. do they have an alternate plan that you know of just in case this drags on to sort of, you know, get it on a parallel track? because is wasting. >> there's a question what they would do on a time frame like

this. house speaker pelosi was asked last week about it and she made it clear they would get it done one way or another. no one is clear with the deadline. crazier things have happened. and i would say for the white house, they have to share the stage here, in the president's first 100 days, the most ambitious time any administration has, a chance to make a mark not only on the public, but with lawmakers on the hill and focus on their priorities. whether or not that's going to impact that, we've seen the president issue so many executive orders in the first few days, remember how much critical he got because there was focus on executive orders and not on legislation. and now he doesn't have the choice if the senate is stalled with this impeachment process. as the president has weighed in about impeachment, he doesn't talk about it often, reporters will shout when he goes to the oval office, any thoughts on president trump. any thoughts on the former president's trial and the administration will answer

questions, but they won't spend a lot of time on this and instead trying to focus on things like with the stimulus relief. neil, think about how close the vote on the stimulus package was going to be. there was so much opposition to such a large package, whether or not they'll get this over the finish line in this time frame is yet to be seen. it's too early to say whether this is going to completely throw that off. there are so many things that could happen between now and the end of february, mid march when we thought this bill would reach the president's desk. and what about schools, getting schools reopened? that the administration has been trying to say, we're trying to get this done within our first 100 days and we saw new guidelines from the c.d.c. yesterday and there are so many issues the administration is facing. this is one that certainly may have congress' attention, but i don't think it's going to let it take over their entire head space. neil. neil: don't want to ruin their valentine's day. >> see the hearts, and the

first lady-- >> she put those out. >> and this one says healing behind me, but i don't imagine we'll see healing in d.c. anytime soon. neil: do they change it behind you? >> maybe try to carry it out to my wife. neil: you'll never believe what i stole for the white house. thank you for laying that out here. we're following that. technically we're in day five here, what if i told you that we might want to add a zero to that. could it drag out that long? let's go the uc berkeley law professor, great mind. john, hard to know where it's supposed to go and it's fair to say that it's not supposed to be like this right now and where do you think it goes? >> neil, i'm going to compete with your friend jonathan turley and pop culture references. i think a better comparison is to an episode of seinfeld where everything was upsidedown.

it was called "bizarro world", and this is what's going on now. here is the way it really works. you have an investigation, you interview the witnesses, then you figure out the charge, and then you have a trial where you figure out if someone actually commit the charge. here you have the exact reverse. first the house, right, had the charge first before the investigation. and now they are going to have the investigation second. then at the end of the trial, we might change the charge. i think this shows all the problems with having witnesses at this late stage. of course the senate can do it. it's constitutional for the senate to decide how to run the trial, but i think a lot of us watching, we can tell they're going to be some serious problems. jonathan just laid out a lot of them. all the people that could be called from president trump to mark meadows, to pence, vice-president pence, to leadership in the house and senate, to members of the senate who are actually jurors are now going to be potential

witnesses? we have no idea whether the senate will respect the normal privileges, the right to attorney-client privilege, the right of executive privilege that would normally allow certain witnesses not to appear and not to have to speak. and the thing i'm most worried about is what if the charges change? a lot of the people that i think people want to hear from, leaders to be witnesses, are people who go to after the speech, after the attack started. that's not part of incitement. that's some other charge, maybe dereliction of duty, but that's not what trump was charged with. neil: in other words, to your point that they could expand that. i raised that earlier with your fellow avant garde arts sciences jonathan turley where we were talking about can you change the charges now as you've got evidence or conversations that hint at whether or not trump instigated this, did he do anything to stop this? i see your point to where it could turn into a huge mess. i'm wondering how big a mess,

how long a trial now. where does this go? in washington they say, don't worry, we can walk and chew gum at the same time and that covered them for quite a few decades here and that's not really the case. i'm wondering where it goes. >> senate recess until 12:30 p.m. is there an objection? hear none we stand in recess until 12:30. >> thank you, mr. president. neil: all right. just interrupted. recess until at least tomorrow at 12:30. jonathan to that point, what do they work on tonight for presumably for tomorrow and where this goes. i know they're going to outline where they're going to interview witnesses, who they'll interview and how many witnesses they're talking about, but it's almost starting from scratch, right? >> exactly. and that's a big problem you just pointed to two of them. one is, what's the limit going to be on who the witnesses are

and whether you're going to respect anyone's right not to have to testify? are you going to allow the normal rules of evidence to apply. some of the things talked about by the house managers would be hearsay not permitted in a normal courtroom. the senate can do what they want. neil: i don't mean to interrupt you. i got something wrong. 12:30 today they're going to resume. i'm sorry, i heard it in the middle of the sentence. 12:30 today. >> wishful thinking. neil: can they get together that fast to agree on this or is that not what's going to happen in this interim? >> let me put my hat on as a former senate staffer here. ultimately, you know, the majority can decide, but ideally, the majority and the minority want to reach consensus which of course will involve the house managers and former president trump's lawyers. they'll try to come up with some, i think, defined list of witnesses. because as you say, neil, and

people who watch your show and follow business who watch lawsuits go corporations, would know what you don't want this to turn into is what is called a fishing expedition. the house managers say we have a charge of incitement what we determine as you can see from the evidence they put on almost anything that president trump has done going back to charlottesville and even thing said during the election. if they use that as the outer bounds of what constitutes a relevant witness, well, they could interview hundreds of people. who knows where it would end. on the other side, you want to have something that's clearly focused. in a normal trial that would be focused by the charge, incitement. but when it's interpreted this broadly, it's going to be hard to come up with a consensus between the two parties about a witness. i think the most interesting witness could be over whether president trump wants to appear. suppose president trump says

i'm willing to write out a deposition, i'm willing to answer written questions. remember, he did during the mueller investigation, but suppose trump wanted to really blow this out of the water. he could say i'm going to show up on the floor of the senate and i'm going to deliver the closing argument for my side. i'm not going to sit under q & a or cross-examined. i'm going to tell you, senators. the senators aren't allowed to interrupt and they have to sit and listen. i think it would be interesting if the ultimate witness, president trump were to show up. neil: you're saying as long as we have this analogy to hollywood there could be a jack nicholson moment, the truth, you can't handle the truth. i'm done with that. and i want your take on something that was rather curious, the surprise that at least one republican senator would vote for witnesses. i thought in my, you know, half-baked legal mind, nothing like yours, that at least mitt

romney would vote for that, maybe susan collins. five did. i'm surprised that everyone was stunned and surprised. i wasn't aware that maybe a simple majority would do it and they had that as soon as they had just one republican senator commit to it, but i'm just wondering if that number begins to grow. lindsey graham did change his mind from a no to a yeah, could there be others who are not heretofore predisposed to witnesses, but now forced to hear from them, might change their minds. in other words, could this bubble up to something? >> it's interesting. it happen. i'm not sure that the republican senators who voted to allow witnesses are essentially those who seem to signal they didn't think this was an unconstitutional trial, are probably likely votes to vote for conviction. the interesting thing, i think is that if you're one of the other 45 republican senators, why change your mind now? if you think that the trial is

unconstitutional because the senate is it trying a former officer, i think the stronger arguments are on that side, but it's a closed question, but if you've come to that view then why do you want to help? this is a classic thing in trials and even in law school. if the law is not on your side, argue the facts. and that's what the house managers is doing, the law isn't on their side so they're trying to get more and more facts in. on the flip side, if the facts aren't on your side as it seems to be for the republicans in the senate then argue the law. if that's the case, why help the house to keep expanding and throwing more and more facts in. you want to get to the point to acquit because you think the whole thing is unconstitutional. neil: you're best. i appreciate it my friend and worldly, too. and he will be commenting on the golden globe nominations shortly. john, thank you, very, very much. so much we don't know, but john

raising the possibility of donald trump possibly pulling a jack nicholson and at a hearing on and on and on and challenging the things that the president might have done and said differently. and ken belkin, a constitutional law attorney, and what do you expect the prospect of witnesses appearing and talking and testifying, but perhaps the former president himself? >> well, there's a clear legal test here as to whether the president's speech rose to the level of incitement. and it's set out for us in that seminal supreme court case brandenburg v ohio. did the president speak with the intent to incite lawlessness and was there a likelihood of that lawlessness. for a case like that, there's only two pieces of evidence you need, a copy of that speech and potentially the testimony of the person who gave the speech and you know, they could ask him that one question. mr. president, did you intend

to incite a mob to act out against the capitol? >> no, are you sure? >> yeah, i'm sure, i didn't do that. >> i don't see how they could prove intent. with respect to his actions afterward, whether or not he ratified the actions or didn't display the right amount of disdain for the actions afterwards, it's largely irrelevant because it's what he intended to do through his speech. neil: let me get your take on a couple of possibilities here. i guess right now they're working on a format or structure to talk to the witnesses and how many there would be and presumably one right now the democrats are keen on, maybe two if you include alabama senator tuberville who spoke to the president on the phone while they were trying to rush vice-president pence out of there. the congresswoman who spoke to kevin mccarthy who spoke about his conversation with the president, obviously, if you were to believe the conversation, not at all concerned about the

conversation going on on the hill. is this melding into something different? in other words, are they now looking at not just whether donald trump inspired the insurrection and instigated it, but did little to stop it, reverse it, and that this could be widened out? in other words, the thrust of the trial goes way beyond the original charge of the trial? >> as john used it, they're now talking allowing jurors to potentially serve as witnesses. lawyers are never allowed to serve as witnesses in the case that they prosecute or defend, but the idea that jurors could serve as witnesses? it's antethema to the process. do we look at constitutional rights such as due process, freedom of speech under the

auspices. that isn't democracy to me. neil: if both sides wanted to limit it, could have both sides interested in not letting this get out of control and it does serve house manager's interests building doubt about the president and what he knew, what he did, whether he was actively involved in trying to calm the storm. so from their perspective with or without a conviction, the more they can present that argument, they think it will stick and he'll never be able to entertain running for office whether they institute for conviction or not. for republicans, how does it play out? for the president's lawyers, they've got to counter essentially if kevin mccarthy does not talk to them, relying on a secondhand conversation

through a congresswoman who already voted with nine other republicans for impeachment in the house. so, help me with that. >> well, look, it certainly shows he's not getting a fair trial, but a impeachment proceeding is not a legal proceeding and rules of evidence don't apply. i feel it's interesting, the first impeachment was legally insufficient and the second one factually insufficient. the first one didn't rise to the standard of a high crimes and misdemeanor to bring a proceeding. this one, look at the fact here, that 29-page speech i a took an hour to read, that's how boring my life is. nothing in this speech smacks to me as objectively inciting a mob to violence. i would like to quote one part of the speech that's relevant. he says i know that everyone here will soon be making their way to the capitol building to peacefully and patriotly raise

their voice. >> the other side says the opposite. ted cruz is speaking to reporters and things where they stand. let's listen in. >> and then at the last minute, the house managers changed their minds and they wanted to call it witness. leftist twitter got upset that they weren't calling witnesses. i think the house, this is a political theater and i think the house managers were feeling heat on the left flank so they decided they'd surprise schumer and the democrats by saying they wanted witnesses. at this point nobody knows what is going to happen. i will say this. if we do call witnesses it's not going to be one-sided. it's not going to be only the house managers get witnesses and president trump doesn't get

witnesses. and so, if the house managers call representative herrera buetler, the republicans would call nancy pelosi. speaker pelosi could testify when she knew about the threats on the capitol and what she knew specifically. and in particular, she could testify we heard that the house sergeant of arms turned down national guard protection for the capitol on january 6th because of quote, the optics and i think that speaker pelosi can testify as to whether she made a decision based on optics, based on politics not to have additional protection at the capital to prevent the attacks that played out. my view remains we don't need witnesses, but i think if the democrats want to open this pandora's box, i don't think it's going to work out well for them. >>,

[inaudible question] >> there's a long tradition in our trials reflected in the bill of rights that any individual is not required to testify against themselves, to testify at their own trial. i don't think that we should attempt to force the president to testify at his own impeachment trial. this is the house managers are the prosecutors. they have the burden of proof. they haven't proven their case. the reason you're saying this hail mary is everybody knows the outcome of this proceeding, which is that president trump is going to be acquitted. it takes 67 votes to convict, there aren't 67 votes and those or the extreme far left are angry right now and today is a reflection of that anger. >> do you think that any minds would be changed? >> sure, i think where we are right now, i think we likely are about 55 votes to convict. i think all of the democrats are likely to vote to convict. i think all the democrats are going to vote to convict on day one. all of the democrats were going

to vote to convict in 2017. many of these democrats went on record as trump was being sworn into president, as president, saying they wanted to impeach him. so i think on the democratic side it's pursuely purely political. i think on the republican side, a couple of republicans voted on proceedal motions, and on those five to convict. i had he a say 55 to convict plus or minus two. i think we could see a low of 53, a high of 57. neither of those are remotely. neil: that's having. ted cruz, and he stands 55 votes to acquit, still shy by about 12 republican votes to go ahead and make that, you know, conviction stick. jonathan turley, what do you think of that? >> well, i think the math is probably correct. so far this trial has largely hardened the sides and minds.

and it's daunting on what could be unfolding in the near future. we already saw a sort of odd trial where the house managers kept reminding the senators, you're the victim. he was threatening you, which is really add because there are jurors and that's the nature of the case. now you're going to call one of the senators to get up and give testimony in the case and then go back and vote as a juror. at some point this becomes such a bizarre process that you really, you lose sort of focus of the merit. now, it's true. these are not your normal jurors and when i did the judicial impeachment on the senate floor the last one, my preference would have been to strike all of them for cause. you would never want any of these people on your jury, but that's the nature of the process, but no one has ever seen anything like what is

unfolding today. >> jonathan turley, thank you very, very much. and what you're watching now the senate would reconvene in a half hour and maybe by then there would be a road map to how they handle the situation. and that's the big story of the morning. at this point we're telling you on the way to wrapping it up and tying it in a bow, that does not look like it's going to happen and this could linger on for quite some time. i mentioned the markets at the outset with some of the guests that hit records on friday in the belief this was a non-event and 1.9 trillion stimulus plan was coming in a matter of weeks. there's the age old saw that washington can chew gum and walk at the same time. and they might well have that ability, but we've rarely seen that play out. the same markets that advanced on the idea that's a slam-dunk. they might have to slam that slam-dunk that it isn't a given. and that's a house and senate matter that's now turned into a

trial where the rules are changing as we speak. so, too, the spillover what happened on that building on stimulus and so much more, including the covid and vaccine progress and the rest. it all suddenly changed right now. >> the surprise request for witnesses by the house impeachment managers a couple of hours ago now means it could take days if not weeks before we have a verdict in the senate trial of former president trump. welcome to america's news headquarters from washington, i'm john roberts. we're listening and we have been listening at least to senator ted cruz of texas talking about this, he said moments ago he thinks on the low end of the scale there would probably be 53 votes to convict and the high end of the scale 57, which means that the president would be acquitted. let's drop back in and listen to what else senator cruz is saying. >> and the defendant in the proceeding doesn't get to call any witnesses, i don't think that passes the