Good evening from new york. Im chris hayes. We had a Big Development over the last couple of days among Senate Republicans that could very well determine whether or not we get a real impeachment trial. Et so heres how things stand. After donald trump became just the third president in American History to be impeached by the House Speaker of the house nancy pelosi said she would not appoint impeachment managers, those are the house members who will try the impeachment case in the senate, until she gets assurances from Senate Majority leader mcconnell about what f exactly the impeachment trial is going to look like. Heres how she put in a letter to her democratic colleagues. Quote, it now remains to the senate to present the rules which we will proceed. We can then appoint managers. What pelosi is effectively saying is we cant appoint our lawyers until we know what theyre going to be doing, what kind of trial it is going to beo and shes refusing to send the articles of impeachment over to the senate until she gets an answer. One of the biggest Unanswered Questions is whether the b impeachment managers will be able to cross examine witnesses, are there going to be witnesses at all . Cr Senate Minority leader shuck schumer has called for witness testimonies as well as the production of documents central to the case. That testimony and those documents of course were sought by the House Democrats but blocked by the white house during the house impeachment process. Now Mitch Mcconnell has made it clear hes not interested in any of that. H i mean even before trump was impeached mcconnell went on trump tv to look into the camera and announce he is essentially not going to run a fair trial, that hes going to do whatever trump and his allies tell him to do. Everything i do during this im coordinating with white house counsel. There will be no difference between the president s position and our position as to how to b handle this. Well be working through this process hopefully in a fairly short period of time in total pe coordination with the White House Counsels Office and the people who are representing the president. Its kind of amazing admission, right, hes not even pretending. Total coordination, no real trial. Thats where things stand. We have this partisan standoff between nancy pelosi in the house and what happens next is largely in the hands of a wh handful of Senate Republicans. Heres how the math works. You need 51 votes to set the rules of the impeachment trial, a majority of the senate. There are 53 republicans in the senate so four republican would have to break mcconnell to set rules that would result in a ea real actual trial as called for by Chuck Schumer as envisioned in the constitution. So the big question is kind of a political one at this point, are there any cracks among Senate Republicans . Are there any willing to cross the aisle and join with democrats on procedural votes . There are a handful one could imagine breaking with the house, but so far we really havent heard Solid Objects to mcconnells stated position on coordination. Thats until now. On tuesday senator murkowski declared you cant have a real trial if the people in charge are working in lock step with the defense. Listen to what she told to an affiliate about her reaction to those mcconnell comments. In fairness when i heard that, i was disturbed. To me it means we have to take that step back from being hand in glove with the defense. And so i i heard what leader mcconnell had said. I happen to think that that has further confused the process. Further confused the process. Now, murkowski is an interesting case. Shes been a thorn in mcconnells side on a number of issues. Perhaps notably when she was one of the no votes against republican efforts to repeal obamacare. And her stance represents a crack, a real crack publicly in mcconnells efforts to forego a real trial. Its a sign that mcconnells decision to go on trump tv and declare he was coordinating with the white house was a big tactical error. Heidi, i guess i wasnt shocked that murkowski said that, but it struck me as notable, highly notable that she said that publicly in terms of what it means for what she might be saying privately or what others in the Senate Caucus might be thinking. Notable but lets not misinterrupt this or overinterpret it. Ru she was a new week and case as you mentioned she was the only Republican Sen door the vote against brett kavanaugh. And if you look at what she said, chris, she said nothing about witnesses. She said she didnt like coordination and she said she thought there should be a fair trial, but she said she thought she wanted to hear from the house managers and for the president s lawyers, again to go back to the math what you would need is four Lisa Murkowskis to not omsay they want witnesses but to agree with democrats on the specific witnesses that the democrats want. Were a long ways from that in just these individual comments she made here. I tried to talk to her about it, other reporters have tried to t talk to her about, and shes been very mum so i dont want te discount this, but were a longu ways from four Republican Senators saying they want witnesses who the president has been blocking and who we know have more information to offer because john bolton has told us that through his lawyers. Hn theres two questions to me heidi and jim, one is what happens in terms of the process they come up, but the other is about where the political pressure is and what the political experience is for the caucus. Ers and jim, to heidis point if you ask me to bet are you going to get four republicans to break with mcconnell and trump on these procedural votes, my bet would be no. Ne its far more likely theyll stick together. But it highlighted a tactical error which is saying out loud hes coordinating with the white house which to me put his moderates or his more sort of vulnerable members in a worse position. I couldnt agree more. First of all, heidis caution is absolutely correct when it comes to senator murkowski. But yes the interesting dynamic to watch is the fact that if mcconnell would have had this thing sewn up, if he would have had his caucus onboard, he would have had moved quickly to get this organized. And fact hes hedging his bets and made these comments gives me pause about actually where, you know, his caucus is. I think there are still a handful of folks really concerned about getting tied tof donald trump on all of this especially when news is breaking day in,day out about, you know, different facets of the case. Heidi, the pause here thats been hit by nancy pelosi for the stated reason they cannot appoint impeachment managers until they know what theyre doing, the one thing clear about this is its driving trump kaz crazy. This was him tweeting over christmas. I want to give people a taste of the juxtaposition. O his christmas message, together we must strive to foster a culture of deeper understanding and respect, trades that exemplify the teachings of christ. Ec to the crazy nancy. He seems to not be enjoying this interregnum. Well, maybe hes read the polls maybe that shows that 70 of the American Public is actually with nancy pelosi on this, not on the withholding of the articles but on wanting to hear from these witnesses which is the premise of her holding the articles. So she may not succeed in forcing the witnesses who the president is blocking, but what she may succeed in is raising Public Awareness they are indeed being blocked. So these are witnesses who are material to the question. Now, democrats felt they had enough of firsthand evidence of Mick Mulvaney himself going out on National Television and saying, yeah, we did it, get l over it with all the firsthand witness testimony, but the guys who were at the center of this are still refusing to testify, and theres no indication that were going to hear from them. The public thinks we should. Final question for you, jim, and this is sort of a blast in the past which is that this is always a political process inherently, right . Mcconnell wasnt wrong about that, and this is interesting. James rogan who was an impeachment manager i believe back when clinton was impeached, he had this to say. N trent lott, he said he did handsprings trying to make it go away. I have 55 Republican Senators 7 of whom who are up for reelection next year in tough races. You guys in the house just jumped off a cliff, were not following you off a cliff. Senator mcconnell is no trent lott. Its purely political to him and hes up for reelection as you know and hes doing everything he can to tie himself to donald trump until, you know, the polls go south on trump, which is why its going to be interesting to see some of those republicans ng who are out there, those socalled moderates are going tu stick to mcconnell throughout all of this. Im not so sure they are but t well have to wait and see. Thanks to you both. I want to bring in the head of the office of Legal Counsel walter gellenger. And legal analyst. And let me start with you not on the political question but a set of procedural ones. I mean at some level i guess all this is up for debate, but there are Actual Senate rules and theres precedent about trials, and what can we glean from those two sort of bodies of knowledge . You know, we can learn a lot from it, chris. No there are permanent rules. They can be varied by the senate, but it takes 60 votes as mcconnell himself has acknowledged to change the rules. They were altered somewhat for the clinton trial, but that was by unanimous consent, 1000 when the leaders worked it out. But what do those rules provide . They make it clear that testimony is anticipated on behalf of the house managers. There are three rules, rule 6, rule 17 and rule 18 all deal with the fact that witnesses may be called by the house managers, and the senate may compel their own attendance, they may provide if a senator is called he shall give testimony from his standing desk. They provide most relevantly when a witness is called one person may examine the witness on behalf of those who call the witness, and one person may examine the witness on behalf of the other parties. A so the rules themselves completely reject the notion advanced by the majority leader that finding facts is for the house and not for the senate and that is simply repudiated, unless you have no real witnesses, no real trial, no exoneration. How essential do you think the question of witnesses is to the nature of the process this ends up being . O i think there will only be a fair trial if witnesses are relevant to the issues at hand, and whats happened here compared to the past, in the past youve had full special prosecutor reports, you had the starr report, you had the watergate report, you had all the materials we in watergate turned over to house judiciary committee. It never got to the senate because the evidence was so clear that the president , nixon resigned rather than face the trial, but in the case of clinton there was a ton of evidence, there was an extremely full report so full i think the next rules were changed so that we wouldnt have to endure that kind of report. Here youve been denied witness after witness after witness, and its clear that people with direct knowledge of the exact things that we are looking at have been prohibited from testifying, and the standard at impeachment is very different than it is at conviction, just as in a trial you need probable cause for an indictment. You need beyond reasonable truth, beyond a reasonable doubt in a trial. And to get that we need these extra witnesses. The president deserves it and the American People deserve a full trial, and he cannot be exonerated if there isnt a full presentation of the evidence and a full rebuttable. So far theres been no rebuttable and doesnt seem to be a rebuttable. He all theres been is dont let these people testify who actually have knowledge. E and that says to me you cannot exonerate the president. Walter, theres a deeper constitutional issue here which is what is the senate . Its an ally of the president. They dont bring up bills he doesnt want to sign, they are essentially there particularly mcconnell as a kind of adjunct in some ways, hes certainly turned himself into that. What is your understanding of how the constitution both in theory and practice envisions co the role of the senate in this undertaking. Well, i think they are not exactly jurors. That is they have a broader scope of a broader scope of discretion i think than jurors would have. But on the other hand they take an oath to be impartial, which o means they should try to do their duty under the constitution. And the idea that they would not hear from witnesses when we know in every trial in this country there are witnesses called at trial who are not part of the indictment or in this case the impeachment process. Theres just no argument not to hear for four hours, you know, from the chief of staff and the National Security officer. Hi well, particular, jil, to your point when youre talking about someone like Mick Mulvaney presumably this is sympathetic witness for the president. T hes being called by the, you know, prosecutors i guess in this case. But he worked for the president , hes an ally of the president , he defends the president. Absolutely. And if he cant come forward, it is easy to reach a conclusion that thats because what he would say is worse than his remaining silent. Sa and i want to point out during watergate it was a pretrial subpoena. After the indictment, after the house had already started in impeachment proceedings, where we got the extra tape, we got the smoking gun tape. So it is not unusual to have evidence for a trial ot thats a great point. You did not have before an indictment, and people are forgetting that. N thats a great, great point. Thank you for your time tonight. Up next the new tactics to prevent russian interference in the 2020 election by targeting personal data. Ru that story next. On can my side be firm . And mine super soft . Yes. With the sleep number 360 smart bed, on sale now, you can both. Adjust your comfort with your sleep number setting. So, can it help us fall asleep faster . Yes, by gently warming your feet. But can it help keep me asleep . Absolutely, it intelligently senses your movements and automatically adjusts to keep you both comfortable. So, you can really promise better sleep . Not promise. Prove. And now, during our new years special, queen sleep number c4 smart bed is only 1299, save 400, plus 0 interest for 24 months on all beds. Ends new years day. As we head towards 2020 a big question looms about the conditions which we will undertake that election. Will the russians or other nations or foreign entities attempt to abtaj the election they way they did in 2016, will they try to escalate it . We know thank tuesday Bipartisan SenateIntelligence Report that came out earlier this year russia targeted election systems in all 50 states, but were they in a position to actually penetrate all those systems . Will they in the next election . The answers to that are unmaddingly unclear. The Washington Post is reporting some in the u. S. Government are considering a sort of Warning System to counter this type of interference by russia. Quote, the new options contemplate targeting key leaders in the military service and potentially some oligarchs. The messaging would be accompanied by limited Cyber Operation that would demonstrate americans access to a particular system or account or a capability to inflict the cost. The message would warn the target if the election interference did not cease there would be consequences. Is that a good idea . I dont really know. It seems theres a lot of arguments we have on both sides. And here with me now a u. S. Senator whos been focused on elections for years and one of the cosponsors democratic senator jeff murkily of oregon. What do you think of this idea, of some sort of preemptive digital cyber warning shot to russian actors to kind of warn them off further interference . Well, i think envisioned in a similar frame to the deter act which is past the senate which says, look, if you mess around in our elections theres going to be significant consequences. The deter act lays out those consequences in terms of additional sanctions. In this case what more or less is being said well have a special cyber unit that will prevent cyber consequences for key actors inside russia. The details just arent really clear to me yet exactly the extent of what theyre talking about or the impact or the breadth of it. But the idea of saying to russia you mess with our election, there will be consequences, that certainly has broad bipartisan support in the senate. There seems to me a kind of questioning about the nature of these actions on the international stage, sort of cyber intrusion and cyber war. And i harken back to obviously the sort of World Wrestling what to do with nuclear weapons, a very different category but creating some kind of International Regime to guide their use and treaties and it does seem like some bigger architecture is necessary here given just how dangerous in some could be in this sphere. Well, this is good point because the active in the senate anticipates using established mechanisms that are very public mechanisms such as sanctions, but here were talking about a host of possibilities that can range from attacks on peoples personal information, all kinds of impacts on their governmental systems, who knows . Just as were concerned about the breadth of possible russian impact on us. We had on the 2016 election a series of examples. We had the russians setting up a bot network to overload messages for facebook. We had them creating fake news to help drive that fake news. We had them as you mentioned on your program exploring how