Debate over whether Ukraine transcript meets legal standard for quid pro quo

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Debate over whether Ukraine transcript meets legal standard for quid pro quo

Reaction and analysis from George Washington University law professor John Banzhaf.

This is a rush transcript from "Your World," September 26, 2019. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT: It's another witch-hunt. Here we go again. It's Adam Schiff and his crew making up stories and sitting there like pious, whatever you want to call them.

It's just -- really, it's a disgrace. It's a terrible thing for our country.

REP. NANCY PELOSI, D-CALIF.: This is a national security issue. The actions taken by the president, this is like a whole new terrain, a whole level of concern about his lawlessness.

(END VIDEO CLIP)

NEIL CAVUTO, ANCHOR: All right, I think the gloves are off, as President Trump and the House speaker square off.

Welcome, everybody. Glad to have you. I'm Neil Cavuto.

Well, House Speaker Nancy Pelosi accusing the president of engaging in a cover-up, this as the director of national intelligence speaks up.

So what is up?

To FOX Business Network's Hillary Vaughn on the intelligence fight and John Roberts at the White House, where the president is not backing down from this fight.

We begin with Hillary.

HILLARY VAUGHN, CORRESPONDENT: Hi, Neil.

The top Democrat on the House Intelligence Committee, Adam Schiff, says he now wants the whistle-blower to testify to Congress and says it's up to his committee to investigate this complaint, and they will.

The New York Times is reporting that the whistle-blower is a male CIA operative that was assigned to the White House. Chairman Schiff started the hearing today performing a parody of President Trump's phone call with Ukraine.

(BEGIN VIDEO CLIP)

REP. ADAM SCHIFF, D-CALIF.: ... what you want. I have a favor I want from you, though. And I'm going to say this only seven times. So you better listen good. I want you to make up dirt on my political opponent, understand? Lots of it, on this and on that.

(END VIDEO CLIP)

VAUGHN: Republicans on the committee say Schiff's parody was a misleading political stunt.

(BEGIN VIDEO CLIP)

REP. MIKE TURNER, R-OH: And while the chairman was speaking, I actually had someone text me. "Is he just making this up?"

And yes, yes, he was.

REP. BRAD WENSTRUP, R-OH: The chairman described it as parody. And I don't believe that this is the time or the place for parody.

(END VIDEO CLIP)

VAUGHN: Democrats drilled the director over delaying the complaint, saying Maguire had a deadline of seven days, and he didn't deliver.

But Maguire pushed back, saying the situation was unprecedented and the week time frame didn't apply because it didn't meet the legal definition of urgent concern.

He said it also involved the president, who is not a member of the intelligence community, and also had executive privilege, which the White House didn't end up exerting. Maguire says his job is to pass the complaint on to Congress, and they decide what to do with it.

(BEGIN VIDEO CLIP)

JOSEPH MAGUIRE, ACTING DIRECTOR OF NATIONAL INTELLIGENCE: There is an allegation of a cover-up. I'm sure an investigation and before this committee might led credence or disprove that.

But, right now, all we have is an allegation, an allegation of secondhand information from a whistle-blower.

I have no knowledge of whether or not that is true and accurate statement.

(END VIDEO CLIP)

VAUGHN: Ranking Member Devin Nunes says this is the third phone call that the president has had with a foreign leader that has leaked. He called that troubling.

Maguire agreed that to have three phone calls, private conversations with foreign leaders, to leak out of the White House is also unprecedented -- Neil.

CAVUTO: All right, Hillary, thank you very, very much.

Now to John Roberts at the White House, how the president is handling all of this.

Hey, John.

JOHN ROBERTS, CHIEF WHITE HOUSE CORRESPONDENT: The president's complaining an awful lot about it.

When the president touched down at Joint Base Andrews, after coming back from three days at the United Nations, he said that he thought what was going on in the House Intelligence Committee was a disgrace. We have also learned that, before the president left, he had a couple of events. One was a fund-raiser.

The other was at the Intercontinental Hotel, at the Barclay Intercontinental Hotel, where the president's been having a lot of meetings. He met with the staff from the U.S. mission to the United Nations, where he went off on both the whistle-blower and the people at the White House who gave the whistle-blower the information about the telephone call with Volodymyr Zelensky, the Ukrainian president.

According to an audio recording obtained by The L.A. Times, the president said: "He or she or whoever the hell it is, they're almost a spy. Who's the person who gave the whistle-blower the information, because that's close to a spy. You know what we used to do in the old days when we were smart, right, with spies and treason? We used to handle it a little differently than we do now."

There was a smattering of laughter that was heard on the audio recording after the president said that.

Now, The New York Times is reporting that the whistle-blower is a CIA officer who was detailed to the White House, may have had comprehensive knowledge of the Ukraine, which might narrow down the list of possible candidates.

There is also an allegation contained within the whistle-blower complaint that the White House moved the transcript of the Zelensky phone call off of the typical computer system to a code word security system where intelligence matters are kept, which raises it to a much higher level of access.

We're getting a little bit of pushback as to whether that ever happened. But if it did happen, it may be because, Neil, you will remember in the early going of this administration, transcripts of telephone calls between the president and then Prime Minister of Australia Malcolm Turnbull and the president and the Mexican President Enrique Pena Nieto were both leaked.

So the United States took steps to really kind of tighten down the parameters of the people who could get access to that information. And that could explain why it might be on a different system.

We're still trying to run it down. The White House is come -- trying to come out with a statement here, but it's just taken a little while to wash it through the legal process -- Neil.

CAVUTO: Thank you, my friend, John Roberts at the White House.

The director of national intelligence, meanwhile, getting grilled, as John alluded to, over these leaks and who's doing the leaking.

(BEGIN VIDEO CLIP)

REP. DEVIN NUNES, R-CALIF.: Did anybody -- you or anybody in your office leaked this to The Washington Post or NBC News?

MAGUIRE: Ranking Member, I lead the intelligence community. We know how to keep a secret.

As far as how that got into the press, I really do not know, sir.

NUNES: If somebody is leaking this, then it's likely coming from the agencies that you oversee.

(END VIDEO CLIP)

CAVUTO: All right, to former FBI Assistant Director Chris Swecker with us right now.

What do you think of that, Chris, that this did get out? Who did that?

CHRIS SWECKER, FORMER FBI ASSISTANT DIRECTOR: That's a good question.

I mean, we have seen this constant leak environment from my former agency, now the State Department, somewhere -- maybe somewhere in the White House, maybe the CIA.

And any time you leak information, you're committing a criminal act. So, that -- I mean, that's not the main issue here, but it is of concern.

CAVUTO: So what do you think is going on there?

SWECKER: Yes, I have -- I am very familiar with criminal bribery statutes. I'm very familiar with criminal extortion statutes.

And I have -- I just cannot see how this fits into that -- this fact pattern fits into that. You have to -- in extortion, you have to have a threat. There was no threat made in the phone call. And then you're supposed to get something back in value.

Well, the value here is intangible. And that has no jury appeal whatsoever. I would be surprised, I would be shocked if any criminal agency, federal agency, opened up an investigation on this.

CAVUTO: All right, but it's a little bit different with impeachment. I understand that. A high crime and misdemeanor is almost as much a political as it is a legal witch-hunt here.

And the argument is that the quid pro quo was, in fact -- and we will get into this later in the show, Chris, but I'd love your opinion -- the intelligence that might have been gleaned from Ukraine on Joe Biden and his son Hunter and that relationship and whether it was a financially rewarding one.

And that's enough. The president got what he wanted, and that is a tangible benefit, a quid pro quo. Do you buy that?

SWECKER: You know, having a lot of experience with these statutes -- and I realized we're talking possibly impeachment as well.

It just doesn't fit. Number one, it's implied. And that's always a problem in any type of case that involves bribery or honest services theft or political corruption.

And the other one is the value, the thing of value, is highly, highly intangible. So, even in an impeachment context, I don't think you can sell it.

CAVUTO: OK, so let me ask you about the other -- Democrats are hoping that this transcript of this phone call would prove that the president was sort of dangling aid to Ukraine.

They have already pounced on the possibility there are more phone calls, more transcripts of those phone calls that would bring that to light. I don't know if that's the case. I throw it out there.

But you're saying that, if something as intangible as a -- you know, I'm going to look into this for you, Mr. President, the Ukrainian leader responding about, look into whatever you can on Joe Biden and his son Hunter, that, in and of itself, isn't enough?

Now, I know you're in different turf here. Impeachment is a political realm.

SWECKER: Right.

CAVUTO: But, already, as you have heard, a number of the president's critics are saying that's enough for us to go on your -- you're using a foreign country, a foreign power to have sway in another U.S. presidential election.

SWECKER: Yes, inappropriate, yes. Bad form, yes.

But we see that all the time. And we -- and that doesn't translate into criminal behavior. Implied is a key thing here, and intangible is a key thing here.

See, I just don't think you can hammer it into a criminal statute.

CAVUTO: Got it.

All right, Chris, thank you very, very much. It's always good to have you to...

SWECKER: Sure.

CAVUTO: to just sort of bring us back and look at the big picture here.

By the way, we are going to be looking at prior presidents and how they dealt on the phone and in other venues. And you might want to cover your ears for this a little bit later on. You talk about this particular president? Others had some real doozies.

We will explore that, go back in history.

In the meantime, did today's hearing shut down any claims of a cover-up? Lawmakers from both sides coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

REP. CHRIS STEWART, R-UT: Do you believe that you have followed the laws and policies and precedent in the way you have handled this complaint?

MAGUIRE: I do. I know I do.

STEWART: Have you in any way sought to protect the president or anyone else from any wrongdoing?

MAGUIRE: I have not.

What I have done is endeavored to follow the law.

(END VIDEO CLIP)

CAVUTO: Acting director of national intelligence, really only a couple of weeks into the job. Talk about baptism by fire.

Anyway, Joseph Maguire telling Utah Republican Congressman Chris Stewart he is following the rule of law when it comes to the whistle-blower complaint, even though it might rile up some on the left.

Congressman Chris Stewart here with us right now.

Congressman, did that answer satisfy you?

STEWART: Yes, it did, because it was consistent with what we know about the law. It was consistent with conversations we had already with the I.G. And it was consistent with everything that he said in letters to us and also in his testimony today.

If anyone wants to paint the acting director of national intelligence as someone, as a political stooge who is there to in any way protect the president or anyone else, they simply didn't watch this hearing, because, in this hearing, it was very, very clear that this was a man of integrity who found himself between a rock and a hard spot, and was just trying to do the right thing.

CAVUTO: He did relay what the whistle-blower had described as information from multiple U.S. offices that the president of the United States is using the power of his office to solicit interference from a foreign country in the 2020 U.S. election.

Is that, from your understanding, from his recounting of that understanding, what's at issue here, that this guy who released this information and wanted to talk about it wanted to talk about a president compromising something with a foreign power concerning a U.S. election, so much so that he felt compelled to pass it along?

STEWART: Yes.

Well, that was a whistle-blower's view. But I can tell you that my reading of that transcript -- and, by the way, you don't have to have -- no American has to rely on anyone to tell them what to think about this.

You can find the transcript in 30 seconds on the Internet. And it takes you just a few minutes to read. And I think most Americans who read this transcript, they're going to shake their head and go, what is this about? How in the world is this impeachable?

And, Neil, I got to tell you, yesterday morning, I was a little bit anxious. I was worried about reading the whistle-blower's complaint. I thought, what if there's more there? What if there's a surprise?

And as I read his complaint, and I read it carefully, and I took notes, by the end of that, I thought -- I was much more confident that this president wouldn't be impeached for this than I was before, because, as I said, most Americans are going to read this and scratch their head and say, why in the world would this be impeachable, what I'm reading here?

CAVUTO: It might not be impeachable, to your point. I'm not a lawyer, sir. Maybe you are.

But a lot of people were troubled by the fact that he was citing Joe Biden and Biden's son, and asking whether his attorney general, in talking to the leader of Ukraine, could be brought into this, that that would be great.

He goes on to say, referring to the president: "Biden went around bragging that he stopped the prosecution. So, if you can look into it, it sounds horrible to me."

STEWART: Yes.

CAVUTO: Now, given the fact that he survived this back and forth about colluding with the Russians and the Mueller report largely exonerated him on that -- I know Democrats, some of them, argue otherwise -- but do you feel that just the timing of this and potentially inserting a foreign power into another U.S. election was proper?

STEWART: Well, once again, I don't share the characterization that it had anything to do with the 2020 election. I just simply don't think it did.

But I agree with you on this.

CAVUTO: Well, he's -- he's asking to get information on Joe Biden and Joe Biden's son. And he knows full well, at least at the time, that Biden stood the most likely chance of being his opponent in the next election.

I'm not even saying it's impeachable, sir. I guess what I'm getting to you is, do you think that that was a mistake to do? Do you think that was wrong of him to do?

STEWART: Well, I think it was probably a mistake. And I think it was something that many of us read, and we find it very, very awkward.

And it was something that, when I look at it, go, I wish he wouldn't have done that. I wouldn't have done that.

But I think it's also fair to say, if that is your standard, then, oh, my gosh, what about Vice President Biden going there and threatening to -- demanding to fire this prosecutor?

I could go down a long list of things that President Obama did that I think were at least awkward, and perhaps inappropriate.

But the question that we have -- and, frankly, it's a question for all the American people -- is, is this worth removing this man from office?

Because, as I think your previous guest said, there's no possible way that there's a criminal indictment coming about this. There just simply isn't criminal code that would approach this.

It just has to be a political decision. And, by the way, this is an important point. I don't care if you reach 217 people here in the House. I think that doesn't matter at all.

What you have to reach is a threshold of the American people, 60 or 65 or 70 percent of them who look at them like they did with Richard Nixon and Bill Clinton and say, he should be impeached for this.

And I think we're a long, long way from that kind of threshold.

CAVUTO: Congressman, thank you very, very much.

STEWART: Thank you, sir.

CAVUTO: Well, is the controversy over Ukraine proving to be a bigger pain not for the president, but for the guy who wants to be president, Joe Biden?

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP, "JIMMY KIMMEL LIVE")

JIMMY KIMMEL, HOST, "JIMMY KIMMEL LIVE": You have in politics for quite some time. How does this rank as far as on the outlandish scale for you, the last 48 hours, watching this transpire?

JOSEPH BIDEN, D-PRESIDENTIAL CANDIDATE: Eighteen out of 10.

KIMMEL: Mm-hmm.

(LAUGHTER)

(END VIDEO CLIP)

CAVUTO: 2020 Democratic candidate Joe Biden making jokes, but could the joke be on him?

Some poll numbers are showing him falling, and maybe right out of the top spot for the Democratic nomination. I know it's still early. And all of my panelists like to remind me of that. But this is cable news. This is what we do.

All right, FOX News contributor Deneen Borelli joins us, Democratic strategist David Burstein, and the host of "Kennedy" on the FOX Business Network, Kennedy.

He's laughing in the face of this, but I'm sure a lot of the people challenging him are quietly rubbing their hands together on this.

KENNEDY, FOX BUSINESS NETWORK CORRESPONDENT: About the impeachment thing...

CAVUTO: Yes.

KENNEDY: ... and his involvement in the story?

It's not good. It's really tough for Joe Biden to navigate this. And you would need, like, great Clintonian nimbleness in order to weasel your way. And I'm talking like '94 Clintonian, not 2016 Clinton -- not that Clintonian.

And I don't know that he has the skills. And I don't know that he has satisfactorily answered how his son might have benefited from this through his influence through a state-run energy company.

So I look at this. Who is benefiting the most? And it's Elizabeth Warren, because she could be taking out two very powerful foes with one story, with one scandal.

CAVUTO: Without saying a word about this. They have all said, to a man or woman, right, they want the president impeached. They think it's -- these are impeachable offenses, on top of everything else. So I get that.

DAVID BURSTEIN, DEMOCRATIC STRATEGIST: Right. Right.

CAVUTO: But I'm wondering, in the case of Joe Biden, who says this has been exhaustively covered and he's been exonerated about his son and all -- I did a little research on this, because I always like to be prepared.

And, actually, it wasn't exhaustively covered, because by the time it was, the guy, the prosecutor involved was out of a job, the government was toppled and a whole new government came in.

So now people are going to start raising questions, well, what was it about your son, Mr. Vice President, and why, with no gas background, with no real ties to Ukraine, was he sitting on this board? And maybe nothing foul happened here.

But it's going to start raising these questions again. Should he be with worried about that?

BURSTEIN: Well, I think Biden should be worried. And he's got to be worried about this. He's got to be worried other things.

I don't think he should be as worried as the president should be. But that being said, even -- even if he was cleared of wrongdoing, even if there was nothing that was done wrong, you have got to ask the question.

It's not great to be working for Ukrainian oligarchs, even if it's legal, even if it's above-board. There's only so above-board that can be.

CAVUTO: I always wonder. And I had the luck of a government toppling me under my watch, right.

(LAUGHTER)

BURSTEIN: Well, but then you look at Elizabeth Warren, whose message has been about anti-corruption, and you -- and there was a -- there was a -- she was asked earlier today about this, right?

And they said, under a Warren administration, with all the reforms she's laid out, would your child have been able to do that? And she said no.

CAVUTO: So, you think this is going to come up?

(CROSSTALK)

BURSTEIN: I mean, I don't think anybody's going to make a lot of hay of it, but it certainly -- it certainly -- the smart thing would be for everyone to leave it alone and let it play itself out.

CAVUTO: Yes.

DENEEN BORELLI, CONTRIBUTOR: No, that's not going to happen.

CAVUTO: Yes, the great unspoken, right?

BORELLI: Not going to happen.

Listen, there is a clear conflict of interests, I believe, with Joe Biden, because of everything that was just laid out here on the table. I don't see why Joe Biden is laughing, because he's on videotape threatening Ukraine to fire the prosecutor who was looking into what his son Hunter was into.

CAVUTO: Well, to be fair, a lot of Western governments were looking into corruption there.

BURSTEIN: Everyone wanted him...

CAVUTO: Right.

BURSTEIN: And that prosecutor.

BORELLI: But he's on video doing so, like it was a joke, like he's laughing just now on late-night TV.

This is a serious issue, I believe.

CAVUTO: So, when he did make light of over the weekend, I think, when we were on our last Saturday show...

BORELLI: Yes.

CAVUTO: ... and he was talking about the fact, look, that's been looked into, and not a one, not one said anything about it, well, the reality was that it came and went so fast, there wasn't really time to sort of -- piecing this together.

What we do know is that his son sat on this board in Ukraine...

BORELLI: Right.

CAVUTO: ... of a gas company, big moneymaker. And I suspect -- I mean, a lot of people going to say, are you there because your last name is Biden, right?

BORELLI: Absolutely.

And I think his opponents will use this against him, especially Elizabeth Warren. I think they are neck and neck right now in the polls.

CAVUTO: Right.

BORELLI: And so, looking forward, I do think this will be an issue for him, not only with President Trump to bring it up against him, but also his Democrat opponents.

CAVUTO: But the president in a position to criticize someone on getting yourself involved in a foreign power and, in this case, the president pitching to the leader of that foreign power to insert himself in an election, that doesn't look good for Donald Trump.

KENNEDY: I don't think it looks good for anyone. I don't think it looks good for the president. I don't think it looks good for Rudy Giuliani.

There are so many outstanding questions here. And I thought we all kind of agreed to a narrow set of rules, that we weren't going to go trolling in Eastern Europe for opposition research.

CAVUTO: Yes, what is it about that, Eastern Europe and Ukraine?

KENNEDY: And it's not just Eastern Europe, but it's Ukraine specifically.

CAVUTO: Yes.

BURSTEIN: Right.

KENNEDY: It is such a magnet.

And it's tough to wrap your head around. So, if this is such a corrupt place -- and it essentially has been since it came into being in 1991 and developed its own independence -- there has been regime after regime after regime, and they all have been implicitly corrupt.

Joe Biden...

CAVUTO: So, I wonder if it's a pox on anyone associated with it house. And that could hurt the president, it could hurt Joe Biden.

Elizabeth Warren emerges as a quick beneficiary?

BURSTEIN: Well, that's true. But the problem...

CAVUTO: Really? Because I literally just made that up, but OK.

(LAUGHTER)

BURSTEIN: I mean, but, when you look at this, I -- we have got to be careful about this so-called whataboutism, right, which is to basically say, well, I did something, you did something too, let's talk about what you did, because the president, as the president, should -- should accept responsibility for what he did.

He can also talk about what other people might have done and...

CAVUTO: Absolutely. And does it go the other way?

BURSTEIN: Yes. Well, exactly.

But I think that that's important, because what I see the president and his allies trying to do...

CAVUTO: But you just said that the others kind of...

(CROSSTALK)

BURSTEIN: Well, he's trying to deflect that.

KENNEDY: That's fine, but I think it's fair to ask for a uniform set of standards.

BURSTEIN: Absolutely, 100 percent.

KENNEDY: And that's different than whataboutism.

So, if the president released this transcript, what kind of conversations did the former vice president have with leaders of Ukraine?

(CROSSTALK)

CAVUTO: But you think it's just going to keep going down this kind of path where both sides say, well, this guy did this, this guy did that?

(CROSSTALK)

BORELLI: Well, and what we want is the truth. We want the truth to come out.

And, unfortunately, we're seeing the anti-Trump media that is spinning everything that is coming out, including disproving this transcript with the phone conversation that was...

KENNEDY: I mean, to be fair, the pro-Trump media is kind of doing the same thing.

BORELLI: And so what I'm seeing is, I think we really need to get to the bottom of it.

(CROSSTALK)

CAVUTO: So, would you accept that, if Democrats want to pursue other phone calls, transcripts of those phone calls, see where it goes?

BORELLI: They will most likely do that.

They have been investigating the president before he even went into the White House.

(CROSSTALK)

CAVUTO: I know. I know. But do you worry that they're going to find something?

BORELLI: They're not -- well, if they're -- if they would have found something, they would have found something by now.

CAVUTO: It was one call, one transcript.

BORELLI: Because it's been years and years of investigation.

BURSTEIN: This just started. This just started. This is a new issue.

(CROSSTALK)

BORELLI: Can I finish a sentence?

CAVUTO: Let her finish.

BORELLI: They have been investigating Trump...

CAVUTO: OK.

BORELLI: ... ever since he went into the White House. So they have been trying to get something on him to impeach him.

And there is nothing to impeach this man on.

CAVUTO: Well, he kind of gave them a sword, right?

KENNEDY: Just ask President Pence. Beware your dreams, for they may come true.

(LAUGHTER)

CAVUTO: I see what you did there, yes.

All right, guys, I want to thank you all very, very much, fair and balanced discussion that invariably gets a lot of you ticked off, but that's what happens. That's what I do.

Anyway, you think President Trump applied pressure on a phone call? Well, cover your innocent ears, because we're going to go back in time, and you're going to hear from presidents who actually said worse. And they used bad words.

(LAUGHTER)

(COMMERCIAL BREAK)

CAVUTO: Think only this president says the darndest thing on the phone? Well, we go back in time here.

And, kids, let's just say, cover your ears, because some iconic names in the Oval Office said worse, much worse.

(COMMERCIAL BREAK)

CAVUTO: Well, a whole bunch of people offended by what they read on this President Trump call.

But, you know, we have actually heard worse, a lot worse. Try this little exchange from John F. Kennedy.

(BEGIN AUDIO CLIP)

UNIDENTIFIED MALE: I'm appalled, but...

JOHN F. KENNEDY, PRESIDENT: I want to find out if we paid for that furniture, because I want it to go back to Jordan Marsh.

UNIDENTIFIED MALE: All right, sir.

JOHN F. KENNEDY: Then I -- that fellow is incompetent who had his picture taken next to Mrs. Kennedy's bed, if that's what it is. I mean, he's a silly bastard. I wouldn't have him running a cathouse.

Chris, they're not all incompetent? Is that the way they're throwing money around over there? You better look into it, and especially when you told me that they hadn't spent a cent.

UNIDENTIFIED MALE: Well, sir, this is obviously...

JOHN F. KENNEDY: Well, this is obviously a (EXPLETIVE DELETED) up.

UNIDENTIFIED MALE: That's right. That's right.

(END AUDIO CLIP)

CAVUTO: Colorful.

(LAUGHTER)

CAVUTO: Imagine on the other end: Yes, Mr. President.

Anyway, Fox News contributor, Washington Examiner's Byron York on this.

I could go back through history, the recorded history. And we will use other examples here.

But, Byron, of course, others will point out, that's one thing to yell at a general, of course, who embarrassed the president, or someone embarrassed the president by setting up a room for Mrs. Kennedy. At the time, she was expecting a child. She later lost that child, tragically, in a miscarriage.

But the president didn't like the fact that it looked like they were spending a lot of government money on a facility for that moment. And he let them have it, right?

BYRON YORK, CONTRIBUTOR: I like the tone of the general's voice as the president just beats and beats and beats on him.

CAVUTO: Yes, sir. Yes, sir.

Oh, man.

YORK: Listen, I think one thing that's interesting about this is that we're listening to a tape of it.

Kennedy installed a recording system in some rooms in the White House and on the -- on telephones in the White House in 1961-'62.

CAVUTO: Right.

YORK: Then, when he's assassinated in November 1963, Secret Service takes it out. And then Lyndon Johnson puts one back in.

And they say that taping inside the White House went out of favor in 1974, when Richard Nixon's White House tapes were used to bring him down, which is one of the interesting things about this -- this controversy we're having today about the president's phone call, is that there apparently was not a recording, at least from the United States' end, of the phone call, and that there were a bunch of people in the Situation Room taking notes.

Seems kind of an old-fashioned way to do things.

CAVUTO: Yes, I was more -- you know this stuff far better than I, my friend. But, boy, it takes a village, I guess, to listen in on a presidential phone call. Maybe that's the procedure today.

But I was also reminded about Lyndon Johnson. You talked about his taping system that really took off from the Kennedy era.

And this is one where he's talking to Richard Russell, and really forcing his hand to get on a certain presidential assassination commission. Let's listen to this.

(BEGIN AUDIO CLIP)

LYNDON BAINES JOHNSON, FORMER PRESIDENT: You're my man on that commission, and you're going to do it. And don't tell me what you can and what you can't, because I can't arrest you. And I'm not going to put the FBI on you, but you're (EXPLETIVE DELETED) sure going to serve.

(END AUDIO CLIP)

CAVUTO: And, miraculously, he did.

(LAUGHTER)

CAVUTO: So, it raises the issue about the persuasiveness of a president of the United States.

When you're talking to the president of the United States, you're not talking to any just average schmoe here. So that alone is heavy-duty pressure, right?

YORK: Well, there's there's always kind of a -- an imbalance of power in these cases.

Obviously, the poor general who was listening to the President Kennedy rant and the very powerful senator who was listening to the president jawbone him, and the same thing also internationally as well.

You have got President Trump, president, of the United States, the most powerful country on the planet, talking to the president of Ukraine, which is not the most powerful country on the planet, and then the obsequiousness...

CAVUTO: Right.

YORK: ... that you hear -- or that you can see. You're looking at words, but you can almost hear the obsequiousness of President Zelensky and -- as he deals with President Trump.

CAVUTO: Yes, maybe it would better if we traveled on your plane.

And I mean, really, I could definitely relate. I understand.

Now the question is whether that advantage that any president has talking to a leader of another country, as the most powerful person on the planet in that moment, whether that amounts to heavy-duty pressure, whether that's a quid pro quo, in and of itself.

Now, a lot of times, presidents have been on the horn and talked about, like you said, in the case of this military official, in the case of John Kennedy, getting an earful from the president, to LBJ pressing anyone and everyone on not only who sits on a presidential commission, but who is going to be pushing for civil rights.

And the language can be colorful and forceful. It's powerful, right?

YORK: I think what we're missing in this current controversy is any sense of historical context.

We know that presidents lean on not just people in the United States, but on foreign leaders that they talk to. We know that the United States puts conditions, attaches conditions to foreign aid in all sorts of cases.

And we don't know about -- about whether this has happened in any sort of comparable way in the past, or whether there were hints of it in presidential conversations in the past, because, most of the time, they are secret.

I mean, the Johnson and the Kennedy tapes you played didn't come out until decades after those presidents' deaths.

CAVUTO: Oh, you're right. You're right.

And, by the way, I could go on about John Kennedy, and we found in out many years after the Cuban Missile Crisis that one of the clinchers for that deal was his agreeing to get our missiles out of Turkey to satisfy a Soviet demand at the time.

But that didn't come to light until quite sometime later. So I get what you're saying.

What I'm asking you, I guess, is, that's nothing novel or new. Is it the difference here that the president might have jawboned a foreign leader to intrude on a U.S. presidential election? Do you know of anything like that others will hear this segment, look at this segment, hear you and say, well, that's very different?

YORK: They will.

And I -- I don't know, but I haven't looked. Let's -- let's just say it that way.

Obviously, the radioactive charge and what Democrats on the Hill are saying is that President Trump not only pressured President Zelensky, but he did it in a way to benefit himself, that is, President Trump, politically.

CAVUTO: Right.

YORK: I will say that half of what the president wanted, the favor that he listed, was to look into the 2016 election and Russian interference, and see if there was any role of Ukraine.

Now, maybe he had a conspiracy theory about that. But, on the other hand, that's what we have been doing for the last three years, is looking into what happened in the 2016 election. So that doesn't strike me as that big a deal.

CAVUTO: Yes.

YORK: The whole Biden thing is completely different. And I think we do have to learn more about not only what was said with the president, what else was done with the president, what the situation with the Bidens actually was, and then what took place on the Ukrainian end of it.

CAVUTO: That's how people feel talking to you on the phone, Byron. They just shudder.

(LAUGHTER)

YORK: That's right.

CAVUTO: And they just, oh, my gosh, it's York on line one.

YORK: You wait until I'm finished.

(LAUGHTER)

CAVUTO: Yes. I'm not finished.

Thank you, my friend, very, very much.

YORK: Thank you, Neil.

CAVUTO: So it gets back to what Byron was talking about, a quid quo pro.

Well, what is that? Lawyers argue this about whether someone wants something, gets something, and they think of something. What if it's intangible? Therein lies the debate -- after this.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. LINDSEY GRAHAM, R-S.C.: The transcript, you can judge for yourself if that was something that amounts to a quid pro quo.

I don't even think it's close. It was a nothing-burger for me.

SEN. RICHARD BLUMENTHAL, D-CONN.: Donald Trump is going to choke on this supposed nothing-burger. He will go down with this supposed nothing-burger in his throat.

(END VIDEO CLIP)

CAVUTO: All right, a colorful analogy, if ever there was one.

Nothing-burger or not, George Washington Law Professor John Banzhaf back to discuss what these guys are discussing.

Someone's nothing-burger is another one's issue for impeachment, John. Where -- what does it take to be a quid pro quo? I know I touched on this with you, but can you sum that up?

JOHN BANZHAF, ATTORNEY: Sure. Let's take it from the top.

First of all, it depends on the crime. If you're talking about federal election fraud, quid pro quo is not required; 52-USC-301-52, for those who want to look it up, says all you got to do is ask a foreign national for something of value in connection with the election. No quid pro quo. That's all it takes.

On the other hand, if you're looking at bribery, which is one of the two crimes specifically set out in the Constitution dealing with impeachment, then you have to have a quid pro quo.

But it doesn't have to be what lawyers call express and clear. It can be by implication.

So, if my dean, for example, held up my travel grants, and then he called me one day and said, John, we'd like to give you more travel grants. Oh, but would you do me a favor?

I would certainly take that as a bribe. I think most jurors would see it as a bribe, at least in a civil or administrative proceeding, probably not in a criminal one, because, there, you require proof beyond any reasonable doubt, which is tough.

CAVUTO: All right.

So the Republicans, I have talked to, John, have been saying there wasn't a quid pro quo, per se, in that aid that might have been dangled or threatened to Ukraine was not, and that ultimately Ukraine got that money. End of story there. Move on. This is probably not the wisest thing for the president to do, certainly given the just completed Mueller investigation, but nothing to see here, move on.

What do you say to that?

BANZHAF: Well, again, if you're looking at federal election violations, all you got to do is ask. Quid pro quo is irrelevant.

If you're looking at bribery, then all you have to do is offer it. If I say to you, Neil, get me on your show, I will give you a Ferrari, and you let me on the show, and I don't give you the Ferrari, that's still a bribe.

CAVUTO: I'm just looking outside for the Ferrari. It's not there.

BANZHAF: Yes, well, I don't have one either.

(LAUGHTER)

BANZHAF: I'm sorry. I'm a poor law professor.

CAVUTO: So, no, that's interesting then.

Then you have to have gotten something. The essence of bribery, they're getting something. What if...

BANZHAF: Well, it's a promise.

CAVUTO: OK. I -- I...

BANZHAF: Attempted bribery is a promise. Bribery is when you finally get it.

CAVUTO: All right, would the bribery then apply to aid that's held up to a country? Because that does not appear to be the case here.

I know Democrats are saying: I'm sure there are other phone calls. We're looking into it. I'm sure there are other transcripts. We are looking into it.

We only know of this one and this particular transcript of this call. But if that is not out there, then what?

BANZHAF: Well, it looks like the aid was in fact held up.

And I think one of the interesting things about the whistle-blower complaint which was just made public is that, at least according to the complaint, a lot of high officials see it the same way.

In other words, it undercuts the idea this is some crazy rogue agent out to get Trump, or somebody who's paranoid and reads a lot of things into documents.

If he is right -- if he's right that there are half-a-dozen to a dozen other people who also read this transcript -- well, so-called transcript, the record -- and saw it as an implied threat or as a bribe, that certainly strengthens the case.

And, remember, impeachment doesn't mean the guy's guilty. You vote for impeachment, just like a grand jury votes for an indictment, if you have reason to believe the crime has been committed, if there's enough evidence to go to a trial. And then the trial occurs in the Senate.

CAVUTO: All right, but all you have to be convinced in the House -- and it's your opinion here -- you think this rises to the level of a high crime and misdemeanor. The trial in the Senate, if it got to that, would flush all that out.

BANZHAF: Presumably, it would flesh it out. Also, both sides would be heard.

But, again, one of the nice -- one of the interesting parts about the complaint is it has now, in addition to pointing out that other people see it the same way, he has made some very specific allegations that the -- what he calls the word-for-word official transcript was moved from where it should have been to a special secret place, where it was harder to get at, that there was, in fact, a lot of follow-up by Giuliani and possibly by Barr mentioned in the transcript.

So these would be things that they could follow up on. And it either was moved or it wasn't moved. It's either in this computer or it's in that computer. And that would provide further evidence. It would provide further context.

CAVUTO: All right.

BANZHAF: And following up on what you said to one of your guests before, I think whatever comes out now as a result of this is much more likely to be incriminating for Trump than exonerating, in other words, more likely to hurt him than to help him.

CAVUTO: Wow.

John, you're good at this stuff. Thank you, my friend. I appreciate it.

BANZHAF: Thank you.

CAVUTO: John Banzhaf.

And speaking of, by the way, what John was mentioning, I just want to take a peek here -- I know the camera shot is shaky, Pam -- waiting outside the Senate Intelligence Committee closed-door meeting room here, some of the senators who were involved in the questioning today of the director of national intelligence, Joseph Maguire.

Some of them might come to the microphone and talk about maybe some of the things that John just raised.

We're watching that -- after this.

(COMMERCIAL BREAK)

CAVUTO: All right, we just got news that a press pool has been gathered at the White House.

No word yet on what this is about or what might be pending or an announcement from the president or someone else, just that they were told to assemble. And assemble, they are. So we're focusing on that.

Also focusing on how the markets are digesting all of these crosscurrents, up yesterday, down today. Again, this could move based on the progress of, well, what's happening to the president, whether it's looking like he could be in -- in some at least threat of impeachment, or at least impeachment hearings.

It really depends on the environment.

Market watcher Scott Martin way too young to remember even the fiasco with Bill Clinton -- don't even get him started on Richard Nixon.

SCOTT MARTIN, KINGSVIEW ASSET MANAGEMENT: I have read about it!

(LAUGHTER)

CAVUTO: But you know what is interesting, Scott? And you and I have talked about this before.

But I sometimes think the economic backdrop has a lot to say with how a potential impeachment situation works out. We're a long way from that with this president, I hasten.

But it didn't hurt Bill Clinton that the markets were soaring and the economy was soaring when he was going through this. I don't believe it helped Richard Nixon when it was just the opposite when he was going through something like this, two very different cases, I grant you.

But this president has that going for him, the markets and the economy very, very strong. And I'm wondering if that will influence public perception about going after the guy.

MARTIN: I hope it does, Neil.

And it's something too that, as these talks are or these implications drag on, it's something that -- to the point you made on the outset -- the markets can probably endure for at least the near term because of the fact that this economy has benefited from this administration.

The stock market, certainly, given the return numbers, has done well under Trump's guys. So the reality is, yes, while the economy is a tailwind right now, it's probably something that helps him get through at least the first few weeks of some of these tough talks that we're having so far.

CAVUTO: Now, you and I were talking about the times when the trade situation, that things look good for a China deal, stocks go up. When they look bad for a China deal, stocks go down.

Is this the China replacement issue now?

MARTIN: It might be.

And I will tell you what's scary about that is even extending that to this may be the USMCA replacement, unfortunately, as far as the news headlines. And that's really the scary thing for me, Neil.

Now that we have had these trade wars with China, as we have seen numbers emerge with trade, now Mexico is our number one trading partner, we're working on a trade deal with them as well.

CAVUTO: Yes.

MARTIN: Canada just to the north too with the USMCA.

So now we have got a lot of trade things going on. And if this happens to distract from, say, progress on either of those issues, that does make me concerned for the long term.

CAVUTO: All right, now, we talked about how strong the market was with Bill Clinton.

And we do know that that was the backdrop there. We do know the economic recovery with strong and the millions of jobs gains, that was the backdrop there, almost identical backdrop for this president. How much do you think, in the end, that changes the dynamics?

MARTIN: Well, it depends what the end is.

CAVUTO: Yes, you're right.

MARTIN: The end may be the end, right?

If it is the end, it's going to change the dynamics considerably. And, as you mentioned, it didn't do it with Clinton. He did get impeached, but it was not confirmed. The market did, as of note -- what you said, I didn't remember, I was there.

CAVUTO: Yes.

MARTIN: It dropped precipitously the next day, but then rallied nicely for the next year-and-a-half.

We could see a similar situation with that, Neil, where the market does react negatively, and then bounces again.

CAVUTO: All right. Got it.

And I was there for Andrew Johnson too. Whoa, was that crazy.

(LAUGHTER)

MARTIN: Oh!

CAVUTO: We will have more after this.

(COMMERCIAL BREAK)

CAVUTO: Are we close to solving this GM strike in Detroit?

Grady Trimble right now.

What are you hearing, buddy?

GRADY TRIMBLE, CORRESPONDENT: Hey, Neil, we're hearing that the two sides are closer than ever to reaching a deal, that talks have moved up the chain, and now it's going on with the top negotiators.

Now, separately, we first told you last week that General Motors decided to stop paying for health care coverage for striking workers. That forced the union to pick up the tab, and it also caused a lot of confusion amongst the workers.

Well, today, General Motors kind of reversed course, releasing this statement: "Given this confusion, GM has chosen to work with our providers to keep all benefits fully in place for striking hourly employees, so they have no disruption to their medical care, including vision, prescription and dental coverage."

Now, UAW responding harshly to this move by General Motors, saying: "It should not have taken stories about UAW GM workers who faced losing their cancer drugs or postponing their surgery dates for GM to see their workers as human beings and not pawns on a chessboard."

As far as when the strike will end and when we will see a tentative agreement, that's still unclear. Could be hours, could be days -- Neil.

CAVUTO: All right. Good job, buddy. Thank you very much, Grady Trimble, in the middle of all of that in Detroit.

It's been a little bit more than a week now. Let's hope they get something done.

Here comes "The Five."

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