IE 11 is not supported. For an optimal experience visit our site on another browser.

McConnell lacks votes TRANSCRIPT: 1/28/20, The Last Word w/ Lawrence O'Donnell

Guests: Elizabeth Warren, Hayes Brown, Laurence Tribe

 

LAWRENCE O`DONNELL, MSNBC HOST:  Look who`s here.

RACHEL MADDOW, MSNBC HOST:  This is weird.

O`DONNELL:  It is weird. I don`t know how to do this.

MADDOW:  I know, here.

O`DONNELL:  Could you get in a box somewhere?

MADDOW:  You hold this in front of your face.

O`DONNELL:  So, so much for overturning an election. If Donald Trump is removed from office, you get the other guy that people voted for when they voted for Donald Trump.

MADDOW:  Um-hmm, you get Donald Trump`s personal choice of the guy who`s like to succeed him if anything happens to him.

O`DONNELL:  Nothing to it.

So, this week has turned out to be, this trial has turned out to be Harvard law professor versus Harvard law professor.

MADDOW:  Uh-huh.

O`DONNELL:  Alan Dershowitz on the floor of the Senate being challenged by Professor Lawrence Tribe who is a constitutional law professor. So, he actually has greater stature on these subjects. Professor Tribe is going to join us in this hour.

MADDOW:  Nice.

O`DONNELL:  To respond to the Dershowitz argument that no matter what the impeachment managers say about Donald Trump, none of it -- none of it is an impeachable offense.

MADDOW:  The Dershowitz v. Dershowitz argument is the most impressive argument of the week I have to say. Seeing him argue against his former self seemed both he and Ken Starr concede.

Now, these arguments that we`re not making will not be joined by most of the legal profession. Nevertheless, take it from us, both of whom have publicly -- famous for publicly arguing the exact opposite in this lifetime, it was weird casting --

(CROSSTALK)

O`DONNELL:  So, to be fair, it`s going to be, in this hour, Dershowitz and Tribe versus Dershowitz.

MADDOW:  Versus Dershowitz. Which is not fair.

O`DONNELL:  I know. But we have a referee for it.

MADDOW:  Oh.

O`DONNELL: I think I`m going to turn to a third Harvard professor to referee this Harvard law professor battle another Harvard law professor.

MADDOW:  Who else do you have?

O`DONNELL:  That would be former Harvard Law Professor Elizabeth Warren.

MADDOW:  Very good.

O`DONNELL:  She can referee this thing, right? She knows both of them. She was on the faculty with both of them.

MADDOW:  That seems like a jury of peers. Well done, my friend.

O`DONNELL:  Can we shake hands?

MADDOW:  No, I just like -- and then go.

O`DONNELL:  It`s in the same frame. This is so strange.

MADDOW:  Yes, I got to go.

O`DONNELL:  Thank you, Rachel. Go ahead.

The breaking news of the night -- that worked. You`re still here.

The breaking news of the night is, of course, that Mitch McConnell does not have the votes to block witnesses in the Senate impeachment trial of Donald Trump, according to reporting in "The New York Times," "The Washington Post" and "The Wall Street Journal."

So let`s begin our discussion tonight with one of the senators who is going to vote for witnesses in the Senate trial.

We are joined now by Massachusetts Senior Senator Elizabeth Warren who is also now a Democratic candidate for president of the United States.

Senator Warren, thank you very much for joining us tonight. I really appreciate it.

SEN. ELIZABETH WARREN (D-MA), PRESIDENTIAL CANDIDATE:  Oh, thank you for having me. I`m delighted to be here.

O`DONNELL:  So, it`s unusual for Mitch McConnell to allow it to be publicly known that he does not have the votes. What is your sense of where we are right now on getting witnesses in this trial?

WARREN:  Oh, listen, I think the heat under the Republicans has gotten to the point it is excruciating for some of them. And, look, it should have been from the very first day.

We have a trial in the Senate because it is constitutionally required. Regardless of how people see the politics of it later on, once the House has delivered those articles of impeachment, we are constitutionally required to have that trial. That means presumably a fair trial.

And when the Republicans, Mitch McConnell start out by saying, we`re not going to do any witnesses, and he also says that we are not going to have any documents, we can`t see any of the emails, that`s not a fair trial. And everybody in America knows that.  I don`t care whether you are a Trump supporter, or you supported Clinton -- doesn`t make any difference. Everybody in America knows that.

And then when the argument from the president`s lawyers turns out to be that, well, see, the thing is, there is no -- they say that no one is able to link Donald Trump to an actual decision to withhold aid because that aid would be withheld until -- until Ukraine came up with dirt on his political rivals. And John Bolton says he has that direct information. So, to argue that the evidence is not available while John Bolton and his book, at least, seem to be saying he would provide that evidence and he`s glad to testify, really just puts the Republicans in a completely, completely untenable position.

So no wonder Mitch McConnell doesn`t have the votes to be able to keep out the witnesses. He never should have had them to begin with.

O`DONNELL:  And now, at least publicly, John Bolton has kind of a character witness, a credibility witness from the White House, from the Trump White House.  The former White House Chief of Staff John Kelly who is being now quoted publicly as having told an audience that, I believe -- in effect, I believe John Bolton. If John Bolton put that in John Bolton`s book, I believe John Bolton.

This is someone who knows Donald Trump, worked with Donald Trump, and he has staked -- he`s made his decision about who is credible.

WARREN:  That`s right. Well, you know, that`s the thing about bringing in the witnesses. And I keep wanting to say this, and the documents, the emails, whatever traffic was going back and forth. Over and over, the president`s lawyers have stood in the well of the Senate and said, no evidence, no evidence, and Donald Trump did nothing wrong.

And the question is, then why can`t we see the witnesses and why can`t we see the documents?

But that`s the thing. You open up and the witnesses start coming out, the documents start coming out, and you don`t know where the next piece leads and the next piece leads or let me put it this way -- I don`t know where it leads. You may not know where it leads. It`s entirely possible Donald Trump and his administration know where it leads and that`s why it is they`re trying to keep this wall up.

O`DONNELL:  Let`s go to this extraordinary battle between the Harvard law professors, Professor Dershowitz, Professor Tribe. You heard Professor Dershowitz on the floor of the Senate. You`ve read Professor Tribe on this.

Professor Dershowitz saying that nothing -- nothing the impeachment managers are alleging against the president rises to the level of an impeachable offense for which he could be found guilty and removed from office. Professor Tribe argues exactly the opposite. Professor Dershowitz did have the decency, at least, to acknowledge to you when he was on the Senate floor that this is a complete change of mind from the last time he thought about the impeachment of the president when it was the Bill Clinton case where Alan Dershowitz argued exactly the opposite.

Can you referee this one for us?

WARREN:  You know, he also -- actually, I want to give Professor Dershowitz credit. He also acknowledged that his position was not one that was supported by most people who study and know this area. And, in fact, the House managers in presenting the case had made the point that the Republicans had been using their own constitutional law expert, Professor Turley, and had used him for several other issues that they wanted to have, called him as a witness in earlier hearing in the House. And now, they can`t even use Professor Turley because he`s not on the side where Professor Dershowitz is.

So not only are the weight of academics not in the place where Professor Dershowitz is. Even the Republican who was trying to help in the impeachment outing is not in the place where Professor Dershowitz is. I believe that Professor Tribe has laid this out pretty clearly, and frankly, very soberly and given a good and full reason why, yes, the things that Donald Trump are accused of are, in fact, exactly the kinds of things that our impeachment laws were written for, that we were a nation at our founding that was worried about foreign influence.

That we were a nation that was worried at our founding that our president - - because he was not a king, was not someone who would forever be wealthy, perhaps, after his time in office -- might have reason to try to take care of himself instead of simply taking care of the country. And impeachment was designed as the framers so often did to be the check on a presidency that was out of control over a man or now I`d like to think a woman, who declared himself or herself above the law.

And that`s the heart of what this impeachment is about. It`s about that basic constitutional principle. No one is above the law, not even the president of the United States. And I think that`s the point that Professor Tribe makes so eloquently, in my view, so persuasively.

O`DONNELL:  According to "The New York Times" report on the John Bolton manuscript, John Bolton had very important conversations with several other people who would obviously be key witnesses in a real trial of these issues. One of them is Mike Pompeo.

I want to listen now to Mary Louise Kelly, the NPR reporter, describing her attempt to ask Mike Pompeo about Ukraine and about the ambassador to Ukraine, what he did to defend the ambassador to Ukraine when Donald Trump was attacking her. Let`s listen to this.

(BEGIN AUDIO CLIP)

MARY LOUISE KELLY, NPR HOST:  I was taken to the secretary`s private living room where he was waiting and where he shouted at me the time the interview itself had lasted. He was not happy to have been questioned about Ukraine. He asked, do you think Americans care about Ukraine? He used the f word in that sentence and many others.

He asked if I could find Ukraine on a map. I said yes. He called out for his aides to bring him a map of the world with no writing, no countries marked. I pointed to Ukraine. He put the map away. He said people will hear about this.

(END AUDIO CLIP)

O`DONNELL:  If Mike Pompeo was under oath being questioned by the House managers, I think that interview would go very differently.

WARREN:  Yes. I think that`s right. You know, I hear something like this and it actually -- it`s so deeply disturbing.

Mike Pompeo`s job is to be a public servant. And I get it, you can get frustrated with how people ask questions. I know, it happens. We all have different jobs here.

But this notion of harassing someone who is trying to get at basic information, who is doing what a journalist is supposed to do, it undermines everyone`s confidence in government. It makes you feel like government is not out there as part of public service, but out there to put up big walls. I think that`s fundamentally wrong.

O`DONNELL:  Let`s take a look at what Donald Trump said about this today. He actually got a standing ovation for Mike Pompeo at the White House today and then he talked to him about the way he treated that NPR reporter Mary Louise Kelly. Let`s look at this.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES:  Impressive.

(LAUGHTER)

That reporter couldn`t have done too good a job on you yesterday.

(LAUGHTER)

I think you did a good job on her actually.

(LAUGHTER)

That`s good, thank you, mike. Great.

(END VIDEO CLIP)

O`DONNELL:  I think you did a good job on her. And with that, and I`m not sure you can see that in your monitor --

WARREN:  Yes.

O`DONNELL:  -- it was Alan Dershowitz sitting behind Mike Pompeo, pats Mike Pompeo on the back when the president is saying to him, I think you did a good job on her.

What`s your reaction to that, Senator?

WARREN:  Look, this is just wrong, and it is wrong for the president to do this. It`s wrong for the people in the room to say, yes, boy, screaming at a woman who was trying to do her job. You really showed. What a tough guy you are.

No, you showed how you`re just not in this as a public servant. You showed how this is all, what, all politics, all partisanship for you all the time? That`s not why you get to be secretary of state and you do a disservice to everybody in this country, Democrat or Republican. And you embarrass our nation. It`s just wrong.

O`DONNELL:  What are you seeing in this impeachment trial that if the president remains in office will be part of the presidential campaign as you continue to pursue that presidential campaign?

WARREN:  You know, let`s face it. What this impeachment trial is about is corruption. It`s about a president who thinks he`s more important than serving the national interest. He was willing to use your tax dollars. He was willing to use the national defense. It`s just a bargaining chip to help him politically.

I think this is what`s broken in Washington and exactly how we`re going to beat Donald Trump. Look, we`ve got the most corrupt president in history right now in the White House. And the way I`m going to run this election is to draw the sharpest possible contrast against that.

You know, I have the biggest anti-corruption plan since Watergate. The bad news is we need the biggest anticorruption plan since Watergate. But it`s to beat-back, the influence of money and self-dealing in Washington.

And here`s the thing. This is the fight we should be having in 2020 because it`s fundamentally about who government works for. Is it just going to work for a handful of rich people, people who can make big donations?

Keep in mind, right at the center of this whole thing is a guy who gets to be ambassador, why, because of his qualifications? No, he gets to be ambassador because he made a million dollar contribution to the Donald Trump inaugural committee. That`s the kind of corruption the American people both understand and are sick to their teeth of.

And here`s the thing. It`s not just Democrats who are sick of it. Republicans get it, too, that Washington has worked over and over and over for those at the top and not for them. That Amazon and Eli Lily and Halliburton report billions of dollars in profits and pay zero in taxes.

Meanwhile, hard working people in this country, they pay their taxes. Somebody has to keep this government running and keep the roads paved and the schools opened and the defense up, and they see a government where these big companies have figured out, where the corporate executives have figured out, where the billionaires have figured out, instead of following the rules, instead of paying your fair share go to Washington and spread around a bunch of money and then you get breaks and the government works for you and sticks everybody else with the bill.

We draw that kind of contrast in 2020, that`s not only how I beat Donald Trump. It`s how we take back the senate. It`s how we take back statehouses all around this country. It`s how we win as Democrats up and down the ticket.

We`re the party that`s not just for the rich guys who are pulling all the strings in Washington. We`re the party to make this government work for everyone.

O`DONNELL:  Senator, quickly before we go to the break.

WARREN:  Sure.

O`DONNELL:  Have you written questions -- for the next two days you`re going to have a chance to submit written questions to either the House managers or president`s defense lawyers. Have you written questions yet and do you have any you can share with us?

WARREN:  I have. They`re not ready to share yet.

One of the things we`re actually doing in the Senate is a lot of us are talking with each other. So there`s no point in 15 of us asking exactly the same question and having to cycle it through 15 different times. So right now we`re doing a lot of coordination and making sure we get all the areas covered. So I think the questions are going to be interesting over the next couple of days.

O`DONNELL:  Senator Elizabeth Warren, thank you very much for joining us on this important night. We really appreciate it.

WARREN:  Thank you for having me. I appreciate it.

O`DONNELL:  Thank you.

And when we come back, I will explain what I think, what I for one think Mitch McConnell is up to when he`s leaking that he does not have enough votes to block witnesses. That`s not what Mitch McConnell usually does when he has a close vote approaching. I`ll give you my theory when we come back.

(COMMERCIAL BREAK)

O`DONNELL:  A new Quinnipiac poll released today, 75 percent of registered voters say there should be witnesses in the Senate impeachment trial of Donald Trump. Seventy-five percent of independent voters say they want witnesses in the trial. And a full 49 percent of Republicans want to hear from witnesses in the trial.

And that last number, 49, that number might actually match the number of Republican senators who are now opposed to witnesses in the trial. It might just be that only 49 Republican senators are opposed to witnesses at this point because "The New York Times," "The Wall Street Journal," "The Washington Post" are all reporting tonight that Mitch McConnell has told Republican senators that he does not have enough votes to block witnesses in the Senate impeachment trial. That means Mitch McConnell has 49 votes or less. It means that at least four Republicans have told Mitch McConnell that they are going to vote for witnesses, and that`s all it takes to force witnesses in the Senate trial.

But why would Mitch McConnell turn over his cards like this? Why would Mitch McConnell reveal now that he does not have the votes? Two, three days before that vote is going to come?

That is not Mitch McConnell`s style when he is approaching a very close vote in the Senate. In the past Mitch McConnell never let it be known that he didn`t have the votes even when he didn`t have the votes. Like the time John McCain voted against Mitch McConnell and Donald Trump on repealing the Affordable Care Act.

Mitch McConnell knew that it would leak immediately when he privately told Republican senators that he didn`t have the votes to stop witnesses. Mitch McConnell wanted it to leak because he knows he needs a lot of help now to get those votes to stop witnesses. He needs Sean Hannity`s help. He needs Rush Limbaugh`s help. He needs Donald Trump`s help.

Mitch McConnell needs Donald Trump and the Trump media team to spend the next two days trying to strike terror in the hearts of Republican senators who are ready to vote for witnesses, terror is what has kept Republican senators in line. Republican senators live in terror of Donald Trump and Trump voters. That means they also live in terror of Sean Hannity who will help unleash the wrath of Trump voters on Republican senators who do what 75 percent of Americans now want them to do, and what half of Republicans want them to do, allow witnesses in the Senate trial.

As of tonight, Mitch McConnell is saying, it`s all up to Donald Trump and Sean Hannity and their Trump media teammates to stop the witnesses.

Joining our discussion now, Jonathan Alter, columnist for "The Daily Beast" and MSNBC political analyst. We have Ari Melber, we are lucky to have Ari Melber, MSNBC`s chief legal correspondent and the host of "THE BEAT" on MSNBC. Susan Del Percio is a Republican strategist and MSNBC political analyst.

And Hayes Brown is joining us tonight.  He`s a senior reporter and editor at "BuzzFeed" and host of the podcast "Impeachment Today".

Ari, as our impeachment trial chairman here on this committee, I want to start with you. Mitch McConnell letting it leak, I don`t have the votes.

ARI MELBER, MSNBC CHIEF LEGAL CORRESPNDENT:  As you laid it out, we were discussing this in our coverage earlier today, this comes out because Mitch McConnell wants to push it out and he hasn`t given up. It`s not as if the turtle has gone into his shell.

O`DONNELL:  Right.

MELBER:  So, as you say, it is him both I think venting a little bit of frustration with how they were blindsided by the Bolton stuff and the White House didn`t really help him there, and then also putting the word out. So if people who have a stake in this -- they could be Republican donors, they could be media figures, as you say, they could be the entire Trump army -- are now put on notice because, remember, this isn`t just any Tuesday. This is the time Mitch McConnell had said wait, then we can get our 51 together after opening arguments.

If he doesn`t have the votes, he`s saying with a day or two more of questions, maybe they can help him get over the line.

O`DONNELL:  Yes, and, Susan, Mitch McConnell is running for reelection which I always think needs to be said at the beginning of every Mitch McConnell discussion, because people forget it, he desperately needs Kentucky to know it`s not his fault. He needs them to know if witnesses show up in this trial, it is not my fault.

SUSAN DEL PERCIO, REPUBLICAN STRATEGIST:  That`s right. And he is also afraid that Donald Trump will come down on him like a ton of bricks if this does not go the way he wants. And just to elaborate on what you and Ari said, I think it`s not just the fact that John Bolton`s information came out in a surprise way to Mitch McConnell. It`s that this is the only way Mitch McConnell knows how to communicate with the president is on television. He needs this to be out there and it`s his way of saying, hey, we`re supposed to be in lockstep together. Just so you know I`m not joking.

And like you said, Lawrence, to get his team back on -- Trump`s team out there to whip the votes.

O`DONNELL:  Let`s take a look at what Lisa Murkowski said today about John Bolton.

(BEGIN AUDIO CLIP)

SEN. SUSAN COLLINS (R-ME):  The reporting on John Bolton strengthens the case for witnesses, and has prompted a number of conversations among my colleagues.

SEN. LISA MURKOWSKI (R-AK):  Mr. Bolton probably has some things that would be helpful for us. And we`ll figure out how we might be able to learn that.

(END AUDIO CLIP)

O`DONNELL:  Hayes, the reason I wanted to see Lisa Murkowski especially is because she was talking the other day that she is going the other way, she`s bothered, offended by some of the managers statements on the Senate floor. And so, Mitt Romney has been strong on witnesses, especially Bolton from the start. Susan Collins was pretty far out there on witnesses. I didn`t see how she could walk it back.

Lisa Murkowski has now taken a position that seems hard to walk back from.

HAYES BROWN, BUZZFEED SENIOR WORLD NEWS REPORTER & EDITOR:  I agree. The reporting on the Bolton book completely scrambled the calculus for the Republican Senate members. It seemed like on Saturday when the president`s defense team first started up they had their first two hours, it seemed like they had one of the easiest jobs in Washington. They just had to last long enough through this like war of attrition basically to make it through to the other side of opening statements so that they could get on to questions, and then on to watching those sweet acquittal votes roll in.

But the Bolton book reporting has made it so that it`s much harder for them to say, if we wrap this up quickly it will all go away, because that`s evidence it will not go away. There will be more things that come out. With these tough reelection races coming in the future and, you know, not just this year in 2020. Two years from now, in 2022, more senators will be up for reelection. This is something that will last with them for a long time how they act in this trial.

So for them to suddenly have this new information presented before them, it means that a lot of them are really weighing their options. And I personally think that we will get witnesses when we have that vote on Friday. Will John Bolton be one of them? That`s still a question mark. But I think the vote for witnesses will pass.

O`DONNELL:  Jonathan, it`s a very different vote after the John Bolton manuscript became public in "The New York Times" reporting.

JONATHAN ALTER, MSNBC POLITICAL ANALYST:  Right. So before Bolton, if you were voting against witnesses --

O`DONNELL:  Before Bolton seems like two weeks ago. And it`s what?

DEL PERCIO:  Forty-eight hours.

(CROSSTALK)

ALTER:  If you were voting against witnesses, people like us would say you don`t want a fair trial. It was like an abstraction. Like you were voting for summary judgment, right?

But now, if you vote against witnesses, you`re voting for a cover up. And they know that the difference between a process question and a cover up is political dynamite potentially for them. And I`m not as confident as you are that McConnell might not pull a rabbit out of his hat because they`re betting on two things basically, ADHD and Karl Marx.

They`re betting on ADHD because they`re just assuming by November nobody will remember this, it will be old news. Americans have a short attention span. Maybe by next week they want even be focused on this that much.

And they are betting on Karl Marx, because they think the state of the American economy determines everything and will overcome all of the charges that Martha McSally and the rest of them are cover up artists.

ARI MELBER, MSNBC HOST: And, Lawrence, another real glimmer of optimism here is for all of the endless talk about how nothing matters, and nothing will change, and it`s all nihilism. Let`s remember, everyone knew John Bolton was negative on this - right - drug deal, hand grenade, I don`t want to be a part of it, and so that was a criticism.

That was like when sometimes witnesses said, oh, it sounded bad. It sounds like a crime. And the Republicans would ask, and this is an argument you can make.But you`re not a lawyer. We don`t care if you think it`s a crime.

What comes out now is John Bolton`s book is going to detail his eyewitness account of Trump. So you`re away from the drug deal criticism and you`re in the room.And I think it`s interesting that Republican Senators, as you were pointing out, some of them - maybe not most, but some.

There are some hearts beating in the Republican caucus that still see that difference and say, wait a minute, if there`s going to be a John Bolton book club, and the Senate where the bunch of Republicans going to be forced to be in that book club, reading it together, maybe they want to get this straight beforehand.

SUSAN DEL PERCIO, MSNBC POLITICAL ANALYST: And there`s also just one other thing that number you read in the top, Lawrence, 49 percent of Republicans to 47percent of Republicans want to hear from witnesses.That will surely get the attention of a lot of individual Senators who are up for reelection and maybe just want to do the right thing, because that what that number shows us too is there is a sense of fairness in this country--

ALTER: Yes, but some of that numbers they want Biden.

DEL PERCIO: But they may--

ALTER: Right. So the hardcore Republicans want Biden--

DEL PERCIO: But they may want Biden. But they - that`s fine. And it`s still about wanting witnesses, which is the most important part, and if that`s how they get there, fine.

O`DONNELL: We have to get to a commercial break.The panel is going to stay with us, except Mr. Ari Melber, because he needs to sleep. Iƒ_Tm going to--

MELBER: I`m anchoring in the morning Lawrence.

O`DONNELL: --shake hands with the guy who has been carrying us through this trial every day. Great coverage, Ari.

MELBER: Thank you, sir.

O`DONNELL: We will be watching you tomorrow morning. Thanks for staying with us tonight, Ari, really appreciate it.

MELBER: Thanks to everyone.

DEL PERCIO: Good to see you.

O`DONNELL: When we come back, the Trump defense now comes down to the Dershowitz defense. The Dershowitz defense is being countered by Harvard Law School`s Professor of Constitutional Law, Lawrence Tribe who will join us next.

(COMMERCIAL BREAK)

O`DONNELL: This impeachment trial of Donald Trump was rocked yesterday by the front page of "The New York Times" which carried the story describing the contents of former Trump National Security Advisor John Bolton`s book manuscript.

According to "The New York Times", in the manuscript John Bolton says that Donald Trump told him that he was holding back military aid to Ukraine to force Ukraine to investigate Joe Biden. In other words, John Bolton`s book manuscript proves the accusations made in the first article of impeachment against Donald Trump.

Former Harvard Law School Professor Alan Dershowitz was the first Trump defender to dare to mention the Bolton manuscript in the Senate trial.

(BEGIN VIDEO CLIP)

ALAN DERSHOWITZ, TRUMP IMPEACHMENT ATTORNEY: If a president, any president, were to have done what the Times reported about the content of the Bolton manuscript, that would not constitute an impeachable offense. Let me repeat, nothing in the Bolton revelations, even if true, would rise to the level of an abuse of power or an impeachable offense.

(END VIDEO CLIP)

O`DONNELL: Joining us now is Laurence Tribe, Harvard Law School`s Professor of Constitutional Law. He is coauthor of "To End a Presidency: The Power of Impeachment". Professor Tribe, thank you very much for joining us tonight, really honored to have you with us.

LAURENCE TRIBE, HARVARD UNIVERSITY CONSTITUTIONAL LAW PROFESSOR: Thank you, Lawrence.

O`DONNELL: I just want to get out of the way and give you the floor as if it was the Senate floor to respond to Senator Dershowitz?

TRIBE: I suppose, what I would say--

O`DONNELL: Professor Dershowitz.

TRIBE: Right, I suppose what I would say to the Senators is this. You may want to vote to acquit Donald Trump, either because you really believe he`s innocent or because you are, frankly scared of what a vindictive Donna Trump will do to you if you don`t vote that way.

But I would implore you, not only because America deserves a fair trial and is worth it, but because you`re going to have to explain to your constituents as well as yourself, and your kids and your grandkids, why you voted the way you did if you end up voting to acquit.

And the only way you can do that fairly. The only way you can do that is to vote to hear Bolton and other witnesses and the evidence. And I say that because otherwise you`ll never be able to explain the way you voted without adopting this remarkably absurd and extreme and dangerous theory that my former colleague Alan Dershowitz is peddling.

Namely, it doesn`t matter if a president uses the vast powers of his office to shake down and ally and help an adversary in order to get dirt on an enemy and corrupt an election, that doesn`t matter. And therefore, you didn`t need to hear any witnesses. But nobody will really accept that as a plausible theory. In fact, there is no legal scholar in the country other than Alan Dershowitz who believes it.

One of my colleagues, Niko Bowie used to say that he might agree with Alan, but now that he`s explained, he doesn`t. Alan says, now Professor Bowie is wrong. Not only is he out on a limb from every other scholar, he`s out on a limb from the Framers of the Constitution. And what would happen if you use that fig leaf to justify your vote?

What would happen is, you might save your skin, but not your soul. Because you would be leaving a message to future generations, to future presidents, that any way they want to abuse the power of their office, any way they want to take appropriated money and turn it to their own benefit, anyway, they want to shake down an ally at war with an adversary for their own corrupt benefit is just fun, because Trump got away with it, since the ultimate ruling was. So what it doesn`t matter.

If you leave that message, and if that`s the explanation you end up having to give to people, you will harm not only the country today, but you will leave a lesson for future presidents that will be terrible to the Republic. It will not be a constitutional democracy, but it will be a dictatorship. So I implore you.

If you`re inclined to voteto acquit this president don`t doit on the ridiculous basis that abuse of power, because it`s not a statutory crime and is rather open ended, is not a basis to remove. Don`t do it on that basis. Do it perhaps on the basis that after you`ve heard John Bolton and looked at the evidence, you`re just not convinced.

I don`t know that I would agree with you. I probably wouldn`t.But at least that would be something that wouldn`t leave a terrible legacy for the future. But the only way you can do that, the only way you could avoid endangering the country is to listen to the evidence, have a real trial and don`t just buy this theory that abuse of power doesn`t matter, therefore, I don`t need to know the truth.

You need to be in the room where it happened with John Bolton. And because that book is going to come out anyway, you ought to find out the truth now, using all of the tools at your disposal, including cross examination to get to the truth.

But do not be seduced by what I would call fig leaf jurisprudence, covering up the truth and covering up the relevance of what really happened when the President decided that he wanted to smear the Bidens even at the cost of increasing the death toll in Ukraine. I guess, that`s what I would tell my fellow Americans, and every member of the Senate.

O`DONNELL: Let`s listen to Professor Dershowitz explaining his change of mind on this and how he switched from what is your position to his new position? Let`s listen to it.

(BEGIN VIDEO CLIP)

DERSHOWITZ: During the Clinton impeachment, I stated in an interview that I did not think that a technical crime was required, but that I did think that abusing trust could be considered - I said that. At that time, I had not done the extensive research on that issue, because it was irrelevant to the Clinton case--

(END VIDEO CLIP)

O`DONNELL: Professor Tribe, you`ve also done more research since the Clinton case, you`ve put out this new book, which I want to point out to the audience beginning on Page 259 specifically takes on the Dershowitz argument. What is it that Alan Dershowitz is missing here?

TRIBE: I think, he`s missing our whole history. He is missing the fact that common law crimes, even though they were not within the jurisdiction of the federal courts in the early 19th Century, were regarded as serious. And one of the most important common law crimes was, believe it or not abuse of power.

In the 17th Century, and in the 18th Century and before in England, abuse of power, abuse of trust was the principal constitutional crime that led to impeachment. So I would suggest that Professor Dershowitz had a much more right the first time.And I have no idea what he`s been reading in the interim, but certainly it`s not English history, colonial history, constitutional law.

O`DONNELL: Harvard Law School`s Professor Laurence Tribe, the highest authority, I personally know on constitutional law. Thank you very much for joining us tonight. I really appreciate it.

TRIBE: Thank you, Lawrence.

O`DONNELL: I appreciate it. And when we come back, tomorrow begins what will be the strangest phase in the impeachment trial of Donald Trump. That`s s next.

(COMMERCIAL BREAK)

O`DONNELL: Tomorrow, the Senate impeachment trial of Donald Trump enters its strangest phase.Eight hours equally divided of Senators questions that can be directed to the House Managers or to the President`s defense lawyers. The questions must be submitted in writing.

There is nothing quite likethis in anything else that we call a trial in America. It is an extremely challenging format for each side. Today, the Chief Justice said that the lawyers should limit their answers to the Senator`s questions to five minute answers.

Joining us now is Andrew Weissmann. He`s a former senior official at the FBI. He also served as Chief of the Fraud Section of the Department of Justice. He`s an MSNBC Legal Analyst. And the panel is back with us. Jonathan Alter, Susan Del Percio, and Hayes Brown.

Andrew, let me go to you, because I - first of all I want to put up on the screen as we talk, the card, the way that Senators going to have to submit these questions. It`s on one of these cards. Put your name up there, you say whether it`s going to the president`s lawyers or the House Managers.

You hand write-- you have to hand write your question - which means the staff is going to have to hand write it, and then you sign it. Andrew, this is the most challenging question format I can think of in this situation.

The Democrats will be somehow trying to coordinate with the House Managers to help them make their points. Republicans will be doing the same thing with the president`s lawyers it is - it is such a puzzle to try to figure out how to do this.

ANDREW WEISSMANN, MSNBC LEGAL ANALYST: It is, but it is a great opportunity for both sides. I mean, the downside is you don`t get follow ups. I mean, that`s the real issue. But I think the Democrats really can use this not only to rebut, because, they haven`t actually had a chance to say what they think is wrong with what was presented by the President`s counsel.

But I think they also can really use this to point out things that strengthen their case for calling witnesses. Meaning, I think that things are going to really develop. I think, even if you find out that the President`s counsel is not answering the questions, I think sort of repeating questions that they`re not putting - not giving answers to could be very useful.

O`DONNELL: Hayes, I have a feeling that Alan Dershowitz is going to get a lot of questions, because if you buy the Dershowitz position, you really don`t have to think about the evidence at all.

HAYES BROWN, BUZZFEED SR. WORLD NEWS REPORTER & EDITOR: Right. And I think that what`s going to be really interesting to me is how they managed to. I think, it`s going to be interesting to watch whether or not the democrats only passed questions on to the House Managers and Republicans only on to the president`s lawyers.

I want to see if any of the Senators are actually willing to actually try and put out some arguments on their own through Schumer`s written down, through the Chief Justice, et cetera. But, whether someone will be willing to actually talk to Dershowitz and write down. So Mr. Dershowitz, you argued XYZ, how do you explain whatever point that he has failed to make in his case?

But it is going to be a lot of - well, would you like to rebut what the defense just said in their answer two minutes ago? Which is going to be bad television, but could make for good trial work.

O`DONNELL: And Susan, the most important questioners in the room, if they submit written questions, Mitt Romney, Susan Collins, Lisa Murkowski, Lamar Alexander, everybody be watching what they ask.

DEL PERCIO: And to Hayes`s point, it`ll be interesting who they ask it off. But - well - and what`s also interesting is the lack of a rhythm this questioning will have because it`s not done conceptually, it`s done by Justice Roberts, and it`s not done with commentary.So the public`s not going to be used - it`s a hearing format where you get to have the whole build up, you actually just ask a question--

BROWN: Which is great. I`m so excited for that. No, speechifying, no abbreviating.

DEL PERCIO: Right. In that five minutes, you really get to answer thoroughly. So I think it`ll be very interesting. But I think we`re also going to be in for a few kooky ones too.

O`DONNELL: Yes. Senate staff is going to be up all night writing questions. Jonathan, I think we can expect that Adam Schiff will be the primary respondent on the manager side.

ALTER: Yes, I hope they ask, not kooky questions. But once they`re a little bit off the wall, I covered the Clinton impeachment. The questions were terrible and boring. And I hope somebody asked Alan Dershowitz, something to the effect of, you say you have to commit a crime to be impeached.

Well, how about if the President went to the French Riviera for three years, left the White House. Well, that`s not a crime. Could it be impeached? How about if the President put a bust of Hitler in his office and said all the Jews should be rounded up? Not a crime, but does that make him unfit and with that open the door for him to possibly be impeached?

His position that abuse of power is a fuzzy concept is completely ridiculous. Both Nixon and Clinton were impeached for abuse of power. It`s not some crazy, vague idea like he`s trying to convey, so he needs to be pinned down on that. And I think the other attorneys for the defense also need to be asked hard questions, not open ended Senatorial questions, but journalistic and cross examining questions.

O`DONNELL: Andrew, imagine yourself in Adam Schiff`s position, which you`d be fully capable of being able to do, especially after working on the Mueller report and that investigation. What is the challenge from Adam Schiff`s perspective in trying to get the message to the Senate that he wants using these questions to do it?

WEISSMANN: I think that what you need to press the president side for is, you need to be saying what did the President - to paraphrase the Nixon hearings, of what did President know? When did he know it? I think here it needs to be, what did the President say? And to whom did he say it?

Here, unlike Nixon, where it was about what did he know about the cover up and do you participate in it here? It`s going to be, exactly what is it that the President did? And what are you basing your information on? Because, they`re going to be saying Bolton is going to say X, Y and Z, do you say that the President said that did not happen and get him to say it and to make that representation in the Senate, not just to the press.

O`DONNELL: Andrew Weissmann gets the LAST WORD. Andrew Weissmann, Jonathan Alter, Susan Del Percio, and Hayes Brown, thank you all for joining us tonight. Really appreciate it. That is tonight`s LAST WORD. "THE 11TH HOUR" with BrianWilliams is next.

(COMMERCIAL BREAK)

  THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END