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Transcript: The Last Word with Lawrence O'Donnell, 2/8/2021

Guest: Adam Schiff, Daniel Goldman, Jason Crow�

Summary:

Donald Trump got some possibly bad news today from 86-year-old Republican Senator Richard Shelby of Alabama who announced that he will not run for re-election in 2022. Sometimes what happens outside the walls of a Senate impeachment trial can affect what happens in the trial. A year ago, Congressman Jason Crow was one of the House managers prosecuting Donald Trump in his first Senate impeachment trial. This year, Jason Crow became one of the victims of the high crime that Donald Trump is charged with in this impeachment trial.

Transcript:

LAWRENCE O`DONNELL, MSNBC HOST: Good evening, Rachel.

And we are going to begin with the world`s leading expert on Senate impeachment trials. That is, of course, Congressman Adam Schiff, who was the lead prosecutor in the last Senate impeachment trial. No one has more recent and relevant experience. He`s going to guide us through what he thinks is going to happen tomorrow.

RACHEL MADDOW, MSNBC HOST: Get to it, Lawrence. I`m really excited to see this hour. This is exactly how I`m going cram for tomorrow`s show. So, I need to watch.

O`DONNELL: This is it. We got it all right here in this hour. Thank you, Rachel.

MADDOW: Thanks, Lawrence.

O`DONNELL: Thank you.

Well, on the eve of the fourth presidential impeachment trial in history, we will spend this hour covering what you need to know as the country, once again, prepares for a week of "Trump on Trial" in the United States Senate. Fasten your seat belts because the "New York Times" is reporting that the House prosecutors plan to, quote, "have a fast-paced cinematic case."

They will use video from the invasion of the capitol, including statements made on video by people saying they attacked the capitol because Donald Trump told them to. Before we get into what we know about the scheduling details and the constitutional comments we`ll hear tomorrow and the presentation of evidence that we`re going to hear later in the week, there is a very, very important point that frames of all of this discussion and that`s the most important thing that we do not know. We do not know how many guilty votes will be cast by senators at the end of the trial.

Now, it was widely and incorrectly reported that last week that 45 Republican senators voted it was unconstitutional to hold a trial for a former president. That`s not what happened. That`s not what they voted on.

What they actually voted on is simply whether to debate the constitutionality of the issue on the Senate floor last week or to hear the lawyers on each side of the case debate that issue at the beginning of the trial tomorrow afternoon. And 45 Republican senators voted to have that debate last week. Just to have the debate. That`s all they voted on was having the debate.

Now no one actually voted to dismiss the case because that never came up to a vote. Mitch McConnell, for example, voted to have that debate last week, but he also said since then he will approach the trial with an open mind about the evidence that he`s undecided.

According to the "New York Times," account, at least nine of the 45 Republican senators who voted to have the constitutionality debate last week have not yet indicated how they will vote at the end of the trial. And the five Republican senators who voted with the Democrats last week to delay the constitutionality debate until tomorrow are also all publicly undecided on how that will vote in the case. So there are at least 14 Republican senators who tonight remain open to the possibility of voting to convict Donald Trump and it would take three more Republican senators to join them and the Democrats to meet the two-thirds threshold for conviction in the Senate impeachment trial.

So this is a real trial. We do not yet know the outcome of the trial. Even if Donald Trump is not convicted, he does seem on the verge of recording the most Senate votes in history for conviction in a presidential impeachment trial. Bill Clinton currently holds the record at 50. There were 48 votes to convict Donald Trump in his first impeachment trial, when Donald Trump became the first president to have a member of his own party to convict him when Romney voted guilty.

Republican Congresswoman Liz Cheney voted against impeaching Donald Trump the first time he was impeached. But this time, she voted for impeachment. And yesterday, she was asked to put herself in the position of a Republican senator.

(BEGIN VIDEO CLIP)

CHRIS WALLACE, FOX NEWS ANCHOR: If you were in the Senate, would you vote to convict?

REP. LIZ CHENEY (R-WY): If I were in the Senate, I would listen to the testimony, I would listen to the evidence, if you`re a senator, you have a responsibility to be a juror. I think that`s very important.

But I, obviously, believe and did then that what we already know is enough for his impeachment. What we already know does constitute the gravest violation of his oath of office by any president of the history of the country. And this is not something we can look past or pretend didn`t happen or try to move on. We`ve got to make sure this never happens again.

(END VIDEO CLIP)

O`DONNELL: Majority Leader Chuck Schumer announced an agreement with Mitch McConnell about the scheduling of the Senate trial that will begin tomorrow afternoon at 1:00 p.m. the trial will begin with four hours of argument by the house prosecutors and Trump defense lawyers about the constitutionality of the trial. The Senate will vote on that constitutionality question probably around 5:00 p.m. tomorrow and a simple majority vote will decide if the trial is constitutional.

Starting Wednesday, each side will get 16 hours to present their case using no more than eight hours per day. That means Wednesday and Thursday will be devoted to the prosecution`s case, followed by two days of the defense case, there will be then four hours reserved for questions from senator which is will probably take place Monday of next week. There will be four hours of closing arguments equally divided between the prosecution and the defense.

The big unknown in this scheduling is how much witness testimony -- how much time witness testimony could take, if either side wants to call witnesses and the Senate votes to allow those witnesses. Senator Schumer said the Senate would continue moving forward with confirmation proceedings, including a confirmation of Biden administration appointees with the Senate working on it in the morning before the Senate impeachment trial resumes in the afternoon.

"The New York Times" reports that the House impeachment managers, quote, plan to mount a fast-paced cinematic case aimed at rekindling the outrage lawmakers experienced on January 6th. The story of the president`s action is both riveting and horrifying.

Representative Jamie Raskin, Democrat from Maryland, said in an interview, we think that every American should be aware of what happened. That the reason he was impeached by the House and the reason he should be convicted and disqualified from holding future federal offices to make sure that such an attack on our democracy and Constitution never happens again.

Leading off our discussion tonight of "Trump on Trial" is Democratic Congressman Adam Schiff of California. He`s the chairman of the House Intelligence Committee and he served as lead impeachment manager in the first impeachment trial of Donald Trump.

Chairman Schiff, thank you very much for joining us tonight. We really appreciate you making the time.

REP. ADAM SCHIFF (D-CA): Good to be with you.

O`DONNELL: I want to go to a point that is made by the House managers in their pleadings. They said that what Donald Trump is charged with here, which is an echo of what Liz Cheney just said is, quote, the most grievous constitutional crime ever committed by a president.

Now, having already prosecuted Donald Trump yourself in an impeachment trial, do you agree that this charge is the most grievous constitutional crime ever committed by a president?

SCHIFF: I do. And I don`t think it`s even close. And I say that as someone who thought his last presidential abuse was among the most serious in history. But I say that because the paramount concern of the Founders was that a president would seek to instill themselves in office permanently, that they would become president for life or king.

And here, where the president incites violation against the capitol against the Constitution, because we talk about upholding and defending the Constitution, we`re not talking about the parchment, of course, we`re talking about what`s embodied in that Constitution, and than joint session of Congress was all about the peaceful transfer of power.

That`s the ceremony where you literally are counting the electors. And by launching that mob at the capitol to interfere with that, by all the bogus, fraudulent claims of fraud, all the incitement against the vice president, he was seeking to defeat that constitutional process and in so doing, resulted in five people losing their lives.

Hard to imagine a more serious violation of the Constitution, or something the Founders would have been more concerned about than that.

O`DONNELL: I want to show a piece of video that we will be seeing during the Senate impeachment trial. There`s a lot of this video. This is of Donald Trump on January 6th, telling people to go to the capitol and saying that he would go with them. This is going to be important evidence in the trial. Let`s listen to this.

(BEGIN VIDEO CLIP)

DONADL TRUMP, PRESIDENT OF THE UNITED STATES: We`re going to walk down, and I`ll be there with you, we`re going to walk down -- we`re going to walk down -- anyone you want but I think right here, we`re going to walk down to the capitol --

(CHEERS AND APPLAUSE)

(END VIDEO CLIP)

O`DONNELL: And, Chairman, this may sound small, but he`s doing that at an event that had a permit only for that location. They were not allowed specifically to move in any direction away from there, especially toward the capitol. That`s, obviously, evidence that is going to be played probably again and again during this time trial.

SCHIFF: I`m sure that`s true. And it just shows the premeditation that for months, he`s lying about the election, saying he`s not going to accept the results if he doesn`t win or he won`t commit to accepting the results. Then he lies about the election, lies about the aftermath, tries to get local elected officials and state elected officials to help him cheat, that corrupt call with the secretary of state in Georgia to find 11,780 votes that don`t exist, all culminating in that day and the march on the Capitol.

And the result was imminently foreseeable -- violence against the capitol and everyone potentially in it.

And so, yes, that`s powerful evidence but importantly, that evidence in the context of everything that lead up to that day and the president`s refusal to intervene and stop the violence when it began. Indeed, he was on the phone still agitating senators to ignore the constitutional duty (ph).

O`DONNELL: The Senate does not have an agreement. Majority leader and minority leader did not reach an agreement on exactly how to handle witnesses. That`s left open in case witnesses are requested by one side or the other. Then they`ll decide how to do that.

That could, for example, include the possibility of allowing them to take depositions outside of the trial procedure. That could slow things down. It could slow things down for days.

But there will, in effect, be witnesses. I mean, Donald Trump is going to testify the way he just did on that video, people who invaded the capitol, the people who threatened the lives of people inside the capitol are going to be testifying through their own recorded video that they did of themselves.

So, there will, in effect, be witnesses. Do you think the House managers need more than that?

SCHIFF: You know, I think it will be entirely Jamie`s call, and he`s an extraordinarily capable constitutional scholar and lawyer. And I think they can evaluate whether they need to go beyond the document of witness testimony, the video, the tape of the phone call between the president and the secretary of state of Georgia, if they want to use it, obviously, all the footage of the president. Not only at that rally but other rallies and the injunction they need to fight like hell, that they would lose their country, they needed to stop the steal, and all of the rest of that.

Do they go beyond that? That`s a judgment call. They`ll have to decide if they do so. Do they -- are they prepared for the defense to call witnesses? Do they -- does that help build the case or does that detract from the case? I think only the manager and Jamie can make that call.

But the one other factor is there are going to be over a hundred witnesses who are present for the trial. That is the senators and the House members. Their testimony may be silent but they understand what took place on that day. They were there.

And unlike the first trial where they had to step into the shoes of, for example, Ukrainian soldier on the front lines of Russia being deprived potentially of military aid so the president could extort Ukraine into helping him cheat -- no, these senators don`t need to imagine what it was like to be in the shoes of people facing that angry mob because they were there.

O`DONNELL: Tomorrow is going to be William Belknap day in the Senate. I think this time tomorrow night, the country is going to know an awful lot about the secretary of war, Belknap, who was impeached and after the fact of leaving office. That is the precedent during President Grant`s administration. William Belknap impeached and tried in the Senate after he left office.

That seems to be the controlling case from the prosecutor`s side. Is there a case that can be cited on the Trump side to point to this being an illegitimate process?

SCHIFF: It will be very hard. Not only is the Belknap case obviously the most on point, but there were two very high profile cases in Britain before the Constitution was drafted or while it was being drafted in which former British officials were impeached and tried. That was an experience of the Framers when they were drafting the Constitution. If they were going depart from it, they knew how to write it but they didn`t. It was a conscious decision.

The language of the text makes it clear you can disqualify someone. That really only applies to people who are no longer in office because the moment they`re convicted, they`re removed from office and disqualification is a separate remedy.

The Trump defense may point to a case involving a judge named Archbald who was impeached on any number of counts or conduct in a prior position and the current position. And there, most of the senators who spoke out at the time, all though that judge was acquitted of prior offenses, said that they believe that you could be convicted for prior offenses. They just didn`t think the evidence was strong enough.

So, even that case doesn`t support the defense.

O`DONNELL: Congressman Adam Schiff, thank you very much for starting us off on this hour. We really appreciate it tonight.

SCHIFF: Thank you.

O`DONNELL: After this break, a look at the evidence that will be presented in the Senate trial including some of the video that will be presented as evidence. Former federal prosecutor Daniel Goldman who worked on the first impeachment investigation of Donald Trump will join us next.

(COMMERCIAL BREAK)

O`DONNELL: Here is some of the video that you will be seeing in the Senate impeachment trial of Donald Trump.

(BEGIN VIDEO CLIP)

TRUMP: We fight like hell and if you don`t fight like hell, you won`t have a country anymore.

So let`s walk down Pennsylvania Avenue.

UNIDENTIFIED MALE: We were invited here! We were invited! We were invited here!

(INAUDIBLE)

UNIDENTIFIED MALE: We were invited by the president of the United States!

(END VIDEO CLIP)

O`DONNELL: Those exact video clips are quoted in the House impeachment manager`s briefs and will be shown on the Senate floor in the presentation that reportedly will rely heavily on video like that as well as statements included by federal prosecutors and criminal cases against the invaders of the capitol.

"The Washington Post" reports, court documents show that more than two dozen charged in the attack specifically cited Trump and his calls to gather that day and describing on social media our conversations with others about why they decided to take action by coming to Washington.

Even when Trump is not cited by name, filings in dozens of other cases show how alleged rioters were broadly motivated by his rhetoric about the stolen election.

Here is more video of another invaders of the Capitol who is quoted by the House managers and you can expect to see during the Senate trial.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: I thought I was following my president. He asked us to fly there. He asked us to be there. So I was doing what he asked us to do.

(END VIDEO CLIP)

O`DONNELL: Joining us now, Daniel Goldman, former House impeachment inquiry majority counsel and director of investigations for the House Intelligence Committee. He`s a former federal prosecutor and an MSNBC impeachment analyst.

Daniel, we have this report from the "New York Times" saying it`s going to be a fast-paced, cinematic presentation. We have just seen some of the cinema. They have a lot of it. Do you expect this to be -- once they get to the evidence, almost as much video as words?

DANIEL GOLDMAN, FORMER HOUSE IMPEACHMENT INQUIRY MAJORITY COUNSEL: I do. I do. Absolutely. I mean, we certainly try to do more video last time but we didn`t have anything like the compelling and emotional video that really tells the story itself.

And the notion of, you know, showing -- I think you`ll see some set-up Donald Trump statements over the period to the January 6th riots. You`ll see his tweets, you`ll see him and his role in orchestrating the January 6th riots, which he said were going to be, quote, "wild."

But then when the day comes, I would expect to just see a lot of video weaving together his statements with the social media statements of the protesters and insurrectionists, and then weaving in some of the written statements of some of them upon being arrested.

And the reason, Lawrence, is that we saw it today in the president`s brief that the argument is he didn`t incite them. That essentially, you know, he spoke -- he talked about a peaceful protest. He -- you know, you know, they`ve been harping on the one word he used. And there was no inciting of any aggression by the president. If you look at his own words.

But the argument will be, well, you don`t have to take our word for it, you just need to take the word of the people who did the insurrection and see who they were following. Who was inciting them? And that`s a very powerful evidence.

O`DONNELL: The defense might take the angle that because there is evidence some people were planning this before the event, it was premeditated for some people, that Donald Trump could not have incited someone with the speech on the day if they had already decided to do it. But then don`t you get to a numbers game where let`s say -- take the idea that 50 people had planned to do it ahead of time but another thousand people actually went in the building incited by Donald Trump.

Doesn`t that still leave Donald Trump open to the charge?

GOLDMAN: Well, there are a lot of problems with that argument. I think that argument helps the House managers, because it indicates that -- it concedes that there was a plan for violent protests prior to Donald Trump`s speech. And so, he either knew or should have known about those plans and still went ahead to incite them knowing that the protest he was encouraging them to go to were going to turn violent.

Keep in mind, Lawrence, you don`t have to be the but-for cause of a violent insurrection in order to be charged with inciting an insurrection. Someone can already have the plan to do it and then you incite them to do it, as well. It`s a completely fallacious defense because it loses on the facts and it loses on the law.

So, I was surprised they actually included that and I think that only helps the House managers because it shows premeditation and foreknowledge by Donald Trump.

O`DONNELL: OK. This is -- I didn`t understand this distinction. This is worth zooming in on it. So, incitement does not necessarily mean that you gave me the idea. I could have had the idea.

Incitement, as you describe it, sounds like something closer to encouragement.

GOLDMAN: Yes, I mean, I think it`s a more severe version of encouragement. But incitement does not have to be the initiation of the idea. There`s no - - there`s no creation in the word incitement that you created the idea. You came up with the idea.

And so, the notion that because it had already been planned -- by the way, it was planned at Donald Trump`s behest, no less, but because the violence had already been planned, by Donald Trump encouraging them to go and be violent at the capitol, that somehow he`s incapable of inciting them, that is, obviously, inciting them.

That`s encouraging them. That`s urging them. That`s pushing them to do what they had planned to do. And that is not a -- that is not a legal defense that would hold any water.

O`DONNELL: There is this fact of the permit, which in a courtroom, I know it would matter, especially if Donald Trump was a witness. There`s a permit for the event saying it can only take place here, cannot march anywhere, cannot go to the Capitol. The question of what Donald Trump knew about the permit would be relevant in the courtroom or not going to have Donald Trump as a witness. So we`ll never know, probably, on the development of the evidence exactly what he knew about that statement of his going to the capitol.

He knew he was lying when he said he was going with them. But did he know he was specifically violating the law of that permit when he was making that declaration?

GOLDMAN: I mean, if past is prologue, the notion that Donald Trump would have an understanding of that level of detail is very farfetched. I don`t think he would know that. I understand your point. Certainly, it would be, you know, a nice little piece of evidence in a courtroom trial but we need to disassociate this notion that what we`re going to start to see tomorrow in the Senate chamber is akin to a courtroom trial.

It is not. It`s very far from a courtroom trial. There`s nobody who is making any evidentiary rulings.

There`s nobody making any rulings as to what arguments are okay. What arguments are not. What law is okay and what law is not.

What facts, you know, you can rely on but, what you can`t rely. It`s a bit of a free for all, and, you know, I think that`s one of the unsatisfying aspects of the trial is the senators can rely on something like this bogus argument both as a legal matter and as a factual matter to find for acquittal for Donald Trump and it shouldn`t be a defense that they`re putting forward.

O`DONNELL: Daniel Goldman, thank you very much for joining us tonight. I really appreciate it.

GOLDMAN: Thank you.

O`DONNELL: And coming up, the outcome of the Senate trial will depend on the evidence and, of course, the politics of impeachment. Former Senator Claire McCaskill and John Heilemann join us next on the politics of impeachment.

(COMMERCIAL BREAK)

O`DONNELL: Donald Trump got some possibly bad news today from 86-year-old Republican Senator Richard Shelby of Alabama who announced that he will not run for re-election in 2022 which means that Senator Shelby, who was first elected to the Senate as a Democrat before switching parties will not be facing any Republican re-election pressure when he decides how to vote in the Senate trial of Donald Trump.

Here is Republican Senator Bill Cassidy of Louisiana with Chuck Todd yesterday.

(BEGIN VIDEO CLIP)

CHUCK TODD, MSNBC HOST: Do you think the outcome is predetermined? Yes.

SENATOR BILL CASSIDY (R-LA): You know, everybody -- no, I don`t. I think it depends upon that which is presented.

(END VIDEO CLIP)

O`DONNELL: Joining our discussion now: Claire McCaskill former Democratic senator from Missouri, and John Heilemann the host and executive producer of Showtime`s "The Circus" and host of the Hell and High Water podcast from The Recount. Both are MSNBC political analysts.

Claire McCaskill, did you react the way I did when I saw Senator Shelby announce today that he`s not going to have any reelection pressure on him when he`s thinking about how to vote in this impeachment trial?

CLAIRE MCCASKILL, MSNBC POLITICAL ANALYST: Yes, I was -- we have got two categories of possibles here. By my count, we have 13 maybes, which is a problem since we need 17. And of those 13, there`s two categories -- well, there`s three categories.

One, from purple states; two with courage; and three, I`m getting out of here anyway and I can afford to do the right thing. And I would put definitely put Shelby in that last category. Watch him follow whatever Mitch McConnell does.

O`DONNELL: And John Heilemann, it seems we are definitely headed for a new record number of votes to impeach and to convict a president in an impeachment trial.

We`re starting at 50 and going up from there. We could be at 55 or 60. And that would have its own kind of impact. That clear majority vote to convict. Even though it doesn`t do the job according to the constitution.

JOHN HEILEMANN, MSNBC POLITICAL ANALYST: Yes. I think that`s right, Lawrence.

And I -- look I think, you know, anybody who is sensible in counting votes and Claire is as sensible as anybody has ever been in the United States Senate. I think we all sort of recognize that the likelihood of conviction is small. I still refuse to rule out the possibility that evidence presented that the cumulative force of what senators are going to see that some combination of that with politics and shifts in public opinion make it unlikely but not impossible that you can get to conviction.

I say very unlikely but not impossible. But I do think, and I think, Democrats understand that. So what is this about? I think it`s about the thing you`re talking about which is how bipartisan can they make it in an environment in which nothing is bipartisan. Can you get five, six, seven, eight, maybe even nine or ten Republican votes that would send a clear message of rebuke, of accountability, that would set precedent and that would, in this very hyperpolarized environment, make a certain kind of statement about just how egregious this conduct was that would in fact leave a mark on history. And I think that is what this is all about. It`s super important.

O`DONNELL: We do have a polling from ABC on this showing 56 percent think Donald Trump should be convicted in this trial; 43 percent no. We have Congressman Adam Kinzinger in "The Washington Post" tonight saying that the Senate should convict -- that`s a Republican House member writing an op-ed piece saying the Senate should convict.

Claire McCaskill, that`s essentially what Liz Cheney was saying yesterday stopping one sentence short of the Senate should convict.

MCCASKILL: The biggest gut punch that Donald Trump has had since he left 1600 Pennsylvania Avenue was the secret vote that was taken on Liz Cheney`s leadership position. Two-thirds of the Republican Caucus voted to support Liz Cheney, even though Trump forces were calling around and lobbying against her.

So when the vote was secret, that tells you what Republicans really are when it comes to Donald Trump. I have no doubt in my mind he would be convicted if the impeachment vote in the Senate was secret. But it won`t be. So as a result, most of them are going to hide behind the fig leaf, frivolous, silly process argument that every constitutional scholar has said is bogus.

Even very, very conservative lawyers have come out saying that this process argument that they`re going to try to hide behind is not a really valid legal argument under the constitution.

O`DONNELL: So, John, it is possible that we won`t hear any actual defense by any senator -- defense of Donald Trump on the merits of the case, on the evidence of the case. That might not be mounted by any senator if they are announcing they are not voting to convict.

HEILEMANN: I don`t think it`s possible, Lawrence. I think it`s somewhere between likely and all but certain. I mean the conduct is indefensible and the result is going to be plain to see.

And I think that what we know about what the House managers are planning to do as they present their case, it would be stunning --= mean, absolutely stunning for even the most die-hard Trump supporter. For even a Josh Hawley or a Ted Cruz to try to defend this conduct on the merits.

I would be absolutely staggered if that happened. And again, that`s another thing that will send a message, I think, to people that, you know, the most in the tank Trumpers will not dare -- will not dare in the face of this evidence to stand there and make a claim that Donald Trump`s conduct was remotely in the same zip code with appropriate.

O`DONNELL: Senator McCaskill, the question of calling witnesses does have a political calculation and that political calculation is how much time can the Senate use up in pursuing witnesses? Because they don`t yet have an agreement on how to handle witnesses. It could delay the proceedings for days just to bring in one witness.

How do you think the Senate and the House managers are going to balance this issue of the timing of the trial versus the timing price of adding witnesses to the trial.

MCCASKILL: Well, it`s complicated. If, in fact, there`s a vote -- and keep in mind that we have a 50/50 senate -- and if it`s a tie, there is no vice president to break the tie in an impeachment procedure vote. So it would, in fact, could be 50/50 and therefore witnesses would not be called. The motion would be defeated.

But if one of the Republicans goes along with getting witnesses this time, like they wouldn`t do last time, then you have another set of problems, as you indicate, Lawrence. How does Mitch McConnell handle that in terms of allowing the Senate to move to other business during the period of time that witnesses would be deposed. It gets very tricky and I have a feeling Mitch McConnell is going to use that leverage to his Machiavellian best.

O`DONNELL: As he always does. Senator Claire McCaskill --

MCCASKILL: As he always does.

O`DONNELL: -- who`s going to be on overtime this week, all week, thank you very much for joining us. John Heilemann, thank you for joining us tonight.

HEILEMANN: Thanks, Lawrence.

MCCASKILL: You bet.

O`DONNELL: Thank you both.

And when we come back, Michael Schmidt of "The New York Times" will join us to consider how a Senate impeachment trial can be affected by factors outside of the Senate chamber. That`s next.

(COMMERCIAL BREAK)

O`DONNELL: Sometimes what happens outside the walls of a Senate impeachment trial can affect what happens in the trial. Charles Cooper might have done that with an op-ed piece he`s written for "The Wall Street Journal" and "The New York Times".

Michael Schmidt describes Chuck Cooper as, quote, "one of Washington`s leading conservative constitutional lawyers. Chuck Cooper has served as a lawyer for the National Rifle Association, John Bolton, House Republican leader Kevin McCarthy and he is an advisor to Senator Cruz.

In his "Wall Street Journal" article, Chuck Cooper makes the case that a senate impeachment trial of a former president is indeed constitutional. What else might be said or published or what else might happen outside of the Senate chamber that could have an effect on the way senators think about the case against Donald Trump?

Joining us now is Michael Schmidt, Washington correspondent for "The New York Times" and an MSBNC national security contributor.

Michael, I was thinking today about the Brad Raffensperger phone call and if a tape like that were to come out during the trial on something not technically, directly related to the trial of the January 6th evidence anyway, this is Donald Trump. We have no idea what kind of taped phone call could come out about Donald Trump at any time. And so this is a trial that could be affected by outside events, outside writing, like Congressman Kinzinger op-ed in "The Washington Post" tonight saying Republicans should vote to convict.

There are things that can happen outside of the walls of the Senate chamber that could affect this?

MICHAEL SCHMIDT, MSNBC NATIONAL SECURITY CONTRIBUTOR: Yes. I think the most important thing to understand coming into this trial is that the Republicans have one argument and that`s that the entire thing is unconstitutional.

And for them, that`s a great thing to cling to because if they say that, they don`t have to address the merits as you guys were talking about in the last segment. They don`t have to talk about what the president actually did.

And what happened with this op-ed is that Chuck Cooper, who`s as conservative a constitutional lawyer as there is, essentially the poster child for conservative constitutionalism came out and said hey, guys, I know you`re my allies in the Senate. He`s friends with many of the people in the Senate. He`s represented them; he`s advised them, people like Ted Cruz.

He says guys, you`re wrong. That argument is bunk. And in doing that, it`s essentially calling them out for this thing that they are holding on to as hard as they can because if the leg of that is kicked out, then they have to take on the issue on its merits. Was the president`s conduct worthy of impeachment?

O`DONNELL: So, Michael, you`re pointing out an additional feature of that approach strictly the constitutionality of the process because it completely defends against what I`m talking about, which is some other unpredictable Trump event or a whole new Trump scandal that could erupt on Thursday that could be in and of itself an impeachable offense during the presidency.

But it would have no relevance to this as long as the Republican Senate position is you cannot, under any circumstances, have a Senate trial of a president who is no longer in office.

SCHMIDT: Correct. Under this logic, if it came out that the president had, you know, done, as he said, you know, murdered someone on Fifth Avenue while he was president, he could not be impeached and held accountable by the Congress for that because a former president, under the Republican`s rationale, cannot be dealt with that way. That this is an unconstitutional proceeding.

So no matter what evidence you cook up or scenarios of tapes or audio or disclosures, the Republicans, by hanging on this argument, are completely insulated from that. They don`t have to confront the facts of that. It allows them to put off the difficult decision.

It`s why a lot of times in legal cases or negotiations or in regular decision making, people say I don`t have to make a decision because of a procedural issue. And that is what has happened here for the Republicans.

O`DONNELL: And Chuck Cooper -- is there another Chuck Cooper who could emerge in Washington with an article like this that could have an impact on the thinking of at least senators?

SCHMIDT: I`m not sure. I`m not sure who the senators would listen to. And I still think we live in obviously, this is a Trump era story. And as we`ve seen in this era, no matter who breaks with the president, no matter what we learn, no matter what new facts are uncovered, no matter what tapes we hear, no matter the stature of that person coming out to condemn the president, that has not really had much of an impact on the president`s base and the hold that that has on the members of Congress. So I`m not sure what it would be that would change their mind.

O`DONNELL: Michael Schmidt, thank you very much for joining us tonight.

SCHMIDT: Thanks for having me.

O`DONNELL: Well, he was one of the House impeachment managers in Donald Trump`s first impeachment trial. Now he is a witness to the events that lead to Donald Trump`s second impeachment trial.

Congressman Jason Crow joins us next.

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O`DONNELL: A year ago Congressman Jason Crow was one of the House managers prosecuting Donald Trump in his first Senate impeachment trial. This year Jason Crow became one of the victims of the high crime that Donald Trump is charged with in this impeachment trial.

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REP. JASON CROW (D-CO): I was looking for any weapons that I could use. Coordinating with Capitol police for an emergency force to come and extract us from the chamber, as well as just thinking about different ways of getting us out of the chamber at that point.

O`DONNELL: What could you have used as a weapon in that situation?

CROW: The only thing I could find was my pen in my pocket, Lawrence. So the chairs are actually bolted to the floor so I had my pen. I actually, honestly, there was a couple minutes where I was thinking about asking one of the officers for his gun because I`ve been in combat. I`ve used lethal force in combat. I`ve led over a hundred combat missions and I do know that I`m capable of using that type of force, if that was necessary to defend my friends and my colleagues.

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O`DONNELL: Joining us now is Democratic Congressman Crow of Colorado. He served as U.S. Army Ranger in Iraq and Afghanistan and was a House impeachment manager during the first impeachment trial of Donald Trump.

Congressman Crow, thank you very much for joining us again tonight. I literally don`t know where to begin. There is two ways I want to talk to you. One as a victim of this crime against the Capitol and then also as a former impeachment manager.

So let me start with your impeachment manager experience. The one witness that has occurred to me that I actually feel could be effective and could be a very difficult witness for Republican senators to deal with would be a Capitol police officer. I don`t know who it is but a Capitol police officer who is close friends with Brian Sicknick, the officer who was killed by the crowd to testify what it was like for the Capitol police and how this officer got injured if it`s among the 140 who got injured, what we know about Brian Sicknick to bring that murder of Officer Sicknick onto the Senate floor in real terms.

Do you think that`s something that would be appropriate for that trial or would take up as they seem to be thinking too much time in that trial? What would your - what would your sense as an impeachment manager be for a witness like that?

CROW: Hi. Good evening, Lawrence. Good to be back with you. And you`re right it is hard to kind of figure out where to start here. I honestly don`t think that any one witness is going to make or break this trial, right?

Let`s remember that this is a crime that was committed in real-time, aired on TV and on most people`s social media feed with a jury that was a victim to that crime, prosecuted by House managers that were also a victim of that crime at the crime scene.

So I don`t think we need to get hung up at any one witness. Of course, I do believe the House managers are going to put together an incredible case that shows the emotion, the tragedy of that day, the murder of this police officer, the brutal beating of 140 others.

And let`s also not forget that several of those officers have since taken their lives due to the stress of that event and continue to be under duress. So you know, zooming back out, I think what is going to be just as important is the days and weeks leading up to the 6th, not just the event itself but how Donald Trump laid the foundation for the gasoline and then finally lit that match on January 6th. That`s a really important part of the story.

O`DONNELL: What did you learn as an impeachment manager that you would bring to it this time?

I think that what`s really important to recognize is that House impeachment managers have dual responsibilities. You have to present a case to the Senate and that`s the primary responsibility because you`re trying a case before the jurors, in this case the senators.

But you`re also representing the nation. You are representing the American people and bringing you know, one of the most critical and important cases that could ever be brought against a United States president.

And you have to speak to the American people too, because you represent them, you are presenting that case and trying that case, that`s really important for our country particularly right now, a country that`s divided. And we have to make sure that you`re speaking to both audiences.

O`DONNELL: Is there something that you managers discussed with each other during that first impeachment trial about presenting to the Republican senators that the challenge that that represents since that`s who you`re really trying to convince?

CROW: Well, we tried to make sure that, you know, we stayed focused on the core elements of the case, but we also have flexibility to respond to questions. You know, actually, this trial is no different from other trials that I`ve tried as a lawyer in that you have to make sure that you`re listening to the jurors and the judges and seeing what they want to dive into more, what questions they have and kind of go where their inquiries take you.

So you have to make sure that you have some flexibility and nimbleness kind of built into your approach so that you`re staying focused but also are responding to the evidence of the day. Because let`s also not forget that unlike normal trials where all the evidence is already established and you go through the discovery process leading up to the trial.

In this instance, much like in our trial a year ago, there was evidence actually coming out in real time. I remember one day, where I was holding up documents that had just been released that morning in front of the United States Senate talking about them a couple of hours later.

This is the same situation because we have ongoing criminal investigations and more information coming out every day. So it`s going to evolve as the trial evolves.

O`DONNELL: Congressman Jason Crow, thank you very much for joining us for this special hour. We really appreciate it.

CROW: Thanks, Lawrence.

O`DONNELL: Congressman Jason Crow gets tonight`s LAST WORD in our special hour: "Trump on Trial".

"THE 11TH HOUR WITH BRIAN WILLIAMS" starts now.

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