The Senate impeachment trial question-and-answer phase was wrapping up Thursday night, setting up a pivotal vote Friday on whether or not to subpoena additional witnesses and documents, or to hold a final vote on whether to impeach or acquit President Trump — and all indications are that the final roll call on the witness question will come down to the wire.
Fox News is told that retiring Tennessee Republican Sen. Lamar Alexander, a key swing vote on the matter, will announce his decision within minutes, in a dramatic capper to a day marked by tension, confrontation and the occasional head-scratcher.
“The senator said he will make a decision after the questions and answers have concluded,” a spokesperson for Alexander told Fox News earlier in the day. “The current plan is to release that decision shortly after.”
Any witness resolution would likely require four Republican defections in the Senate, because in the event of a 50-50 tie, Chief Justice of the United States John Roberts is likely to abstain rather than assert his debatable power to cast a tie-breaking vote. But, it remained possible Roberts would weigh that issue separately, as the precise contours of his power are not legally clear.
Another moderate swing-vote Republican, Sen. Lisa Murkowski, seemingly tipped her hand during the question-and-answer session late Thursday. Her interrogatory said that former National Security Adviser John Bolton, who authored a book that reportedly implicates President Trump in tying Ukrainian military aid to an investigation of Joe and Hunter Biden, has “direct knowledge” relevant to the trial.
“This dispute about material facts weighs in favor of calling additional witnesses with direct knowledge,” she asked. “Why should this body not call Ambassador [John] Bolton?”
However, later in the night, Murkowski and Alexander joined other GOP senators to ask Trump’s defense team whether, even if everything Democrats and Bolton said were true, “Isn’t it true that the allegations would still not rise to the level of an impeachable offense and would add nothing to this case?”
That signaled sympathy for the core of Trump’s defense team’s argument, which is that even if Trump did condition foreign aid on an investigation of a political opponent, such conduct would not justify the removal of a president by the Senate in an election year.
Republicans, who have a 53-47 majority in the chamber, have suggested to Fox News that they would amend any witness resolution that subpoenas Bolton to also require the appearance of several additional witnesses favorable to the Trump administration — likely killing support in the Senate for the whole witness package altogether.
Trump defense counsel Patrick Philbin said late Thursday that if Democrats want to “go down the road” of adding more witnesses, they would push aggressively to learn more about the Ukraine whistleblower’s contact with Democrats in the House prior to filing his complaint. Additionally, Trump’s defense team argued that Democrats contradicted themselves by saying their case was “overwhelming” and that Trump was guilty beyond “any doubt” — even as they insist that they need to call more witnesses and see more evidence.
Momentum has been shifting away from a vote in favor of witnesses, ever since Trump tweeted a link to an interview of Bolton in August 2019 where he discusses Ukraine policy. In the Radio Free Europe/Radio Liberty interview clip, Bolton made no mention of any illicit quid pro quo, and acknowledged, as Republicans have claimed, that combating “corruption” in Ukraine was a “high priority” for the Trump administration.
Trump captioned the video: “GAME OVER!”
Bolton also called Trump’s communications with Ukrainian President Volodymyr Zelensky “warm and cordial,” without mentioning any misconduct. It seemingly contradicted reported assertions in Bolton’s forthcoming book alleging that Trump explicitly told him he wanted to tie military aid to Ukraine to an investigation into Joe and Hunter Biden. (Zelensky has said his communications with Trump involved no pressure for any investigation.)
House impeachment manager Rep. Hakeem Jeffries, D-N.Y., and presidential contender Sen. Elizabeth Warren, D-Mass., raised eyebrows during the proceedings Thursday — including from Roberts.
At one point Thursday afternoon, Jeffries argued that the Steele dossier — written by a foreign ex-spy and dependent in part on Russian sources — did not constitute improper foreign election interference because the Hillary Clinton campaign and Democratic National Committee (DNC) paid for the dossier, rather than receiving it at no cost.
His claim came in response to a question from North Carolina GOP Sen. Richard Burr that was aimed at arguing how the Democrats wouldn’t want to apply their standards to their own candidates.
“Hillary Clinton’s campaign and [the] Democratic National Committee hired a retired foreign spy to work with Russian contacts to build a dossier of opposition research against their political opponent, Donald Trump. Under the House managers’ standard, would the Steele dossier be considered foreign interference in the U.S. election, a violation of the law, and/or an impeachable offense?” Burr asked.
Jeffries then rose and declared, “The analogy is, uh, not applicable to the present situation because, first, to the extent that opposition research was obtained, it was opposition research that was purchased.”
He then accused Republicans of avoiding facts and trying to distract from Trump’s conduct.
Jeffries’ response drew mockery online from a slew of commentators — “Cut a check to Ukraine. We’re done here,” wrote one — and an immediate rebuke in the chamber from Trump attorney Jay Sekulow.
“So, I guess you can buy — this is what it sounds like — you can buy foreign interference? You can purchase it? You can purchase their opposition research and I guess it’s OK?” he asked.
One of the dossier’s foreign sources was the former deputy foreign minister for Russia, Vyacheslav Trubnikov — a known Russian intelligence officer. Much of the Steele dossier has been proved unsubstantiated, including the dossier’s claims that the Trump campaign was paying hackers based out of a nonexistent Russian consulate in Miami or that ex-Trump lawyer Michael Cohen traveled to Prague to conspire with Russians. Special Counsel Robert Mueller also was unable to substantiate the dossier’s claims that Page had received a large payment relating to the sale of a share of Rosneft, a Russian oil giant, or that a lurid blackmail tape involving the president existed.
Nevertheless, the FBI relied heavily on the dossier to obtain a secret surveillance warrant to monitor a former member of the Trump campaign, Carter Page. News of that warrant leaked, and together with the dossier’s salacious accusations, fueled months of unfounded speculation that the Trump campaign had conspired with Russia.
Separately, at the Senate impeachment trial Thursday, Warren posed a question that, by rule, was read aloud by Roberts — and even Democrats in the chamber appeared visibly puzzled by the interrogatory.
“At a time when large majorities of Americans have lost faith in government, does the fact that the chief justice is presiding over an impeachment trial in which Republican senators have thus far refused to allow witnesses or evidence contribute to the loss of legitimacy of the chief justice, the Supreme Court and the Constitution?” Roberts read from the card handed to him by the clerk.
When he finished reading the question — explicitly posed to the House Impeachment managers — Roberts pursed his lips and shot a chagrined look.
After a moment, Rep. Adam Schiff, D-Calif., the lead impeachment manager, appeared at the dais to answer the question — standing mere feet in front of Roberts.
Schiff appeared to try to distance himself from Warren’s question, offering a short answer to the question before speaking at length about a tangential exchange.
“I would not say that it leads to a loss of confidence in the chief justice,” Schiff said, adding that Roberts has thus far “presided admirably.”
He then quickly pivoted to a criticism of President Trump and a conversation he had about the impeachment trial with Rep. Tom Malinowski, D-N.J.
Justice Roberts shut down a question Thursday from Sen. Rand Paul that mentioned the name of the alleged Ukraine whistleblower, prompting Paul to storm out of the impeachment trial and hold an impromptu press conference to read the question anyway.
The clash came after the chief justice, who is presiding over the trial, similarly rebuffed Paul a day earlier. (Paul, according to reporter Niels Lesniewski, was apparently fuming afterward, shouting to a staffer: “I don’t want to have to stand up to try and fight for recognition. … If I have to fight for recognition, I will.”)
Federal law protects whistleblowers only from retaliation in the workplace and does not ensure their anonymity; Republicans have disputed whether this particular whistleblower would even qualify for those limited protections, saying his complaint concerns a policy dispute and does not allege criminal or civil wrongdoing by the president.
“As you may have noticed, we had something slightly atypical downstairs. I asked a question and the question was refused,” Paul, R-Ky., told reporters after exiting the Senate chamber and dashing upstairs to the Senate TV studio.
After seeing Paul’s question on a notecard, Roberts ruled against presenting it in the trial: “The presiding officer declines to read the question as submitted,” he said.
Paul asserted that Roberts’ ruling was wrong because no one knows if the name of the person on his question card is the whistleblower.
“I think it was an incorrect finding,” Paul said.
Paul wanted to ask whether Schiff, who chairs the House Intelligence Committee, and the White House counsel were aware that an intel committee staff member had a close relationship with the reported whistleblower when they were on the National Security Council together.
“How do you respond to reports that [they] may have worked together to plot impeaching the president before there were formal House impeachment proceedings?” Paul said he wrote on the card.
Schiff has made public inconsistent statements concerning the House Intelligence Committee’s contacts with the whistleblower. He first denied that his panel had such contact, then reversed course and admitted that members of the committee had spoken to the whistleblower.
Paul’s question reportedly included the names of two individuals. Fox News has not confirmed the whistleblower’s name.
Paul argued that since Schiff contends he doesn’t know the identity of the whistleblower, how could anyone know if someone deserves whistleblower protections.
“It makes no reference to anybody who may or may not be a whistleblower,” Paul said.
It could be, Republicans have asserted, that the whistleblower coordinated his complaint with Schiff’s panel for partisan reasons — a disclosure that, if true, would likely undermine the credibility of the impeachment proceedings and possibly expose Schiff to his own “abuse of power” allegations. Thus far, the impeachment effort has arguably been elevated in importance from normal partisan bickering in part by the gravitas afforded to the supposedly well-meaning whistleblower at the center of the case.
Republicans have sought more information on the whistleblower ever since the intelligence community’s internal watchdog found several indicators that the person might have a political bias.
Fox News has previously reported that the whistleblower is a registered Democrat and had a prior work history with a senior Democrat running for president. Additionally, the whistleblower faces an Intelligence Community Inspector General (ICIG) complaint for allegedly violating federal law by raising money ostensibly to pay for his legal fees, including money that could be coming from foreign sources.
The whistleblower’s attorney, Mark Zaid, openly admitted back in 2017 that a “coup” had started against the president from within the administration, and that CNN’s coverage would play a “key role” in the effort.
On Wednesday, Schiff again denied knowing the identity of the whistleblower, while Republicans accused him of deliberately lying. Schiff repeatedly shut down GOP questions during the House impeachment proceedings concerning White House leaks — even though doing so at one point seemingly demonstrated that Schiff likely knew the whistleblower’s identity.
“Lieutenant Colonel [Alexander] Vindman, did you discuss the July 25 phone call [between Trump and Ukraine’s president] with anyone outside the White House on July 25 or the 26 and if so, with whom?” Republican California Rep. Devin Nunes asked last year.
“Yes. I did,” responded Vindman, who has also claimed not to know the whistleblower’s identity. He said he had spoken to Deputy Assistant Secretary George Kent, but before he could mention the other person, Schiff intervened and urgently blocked the questioning.
“We need to protect the whistleblower,” Schiff interjected. “Please stop. I want to make sure that there is no effort to out the whistleblower through these proceedings. If the witness has a good faith belief that this may reveal the identity of the whistleblower, that is not the purpose that we’re here for. I want to advise the witness accordingly.”
Dershowitz faces off with Toobin
Harvard Law Professor Alan Dershowitz, a member of Trump’s defense team, wasn’t in the Senate chamber Thursday due to family obligations. But he did post on Twitter and make a lengthy appearance on CNN, telling the network that it should stop mischaracterizing his arguments on impeachment.
The moment was somewhat personal for Dershowitz, as CNN’s chief legal analyst Jeffrey Toobin is one of his former students at Harvard. Multiple media outlets, including CNN, misrepresented Dershowitz throughout the week as saying that presidents can do “anything” as long as they can argue it’s in the “public interest.” Additionally, several politicians, including Sen. Cory Booker, D-N.J., falsely claimed that Dershowitz argued Trump’s conduct was “OK.”
In fact, Dershowitz maintained that criminal or criminal-like conduct is impeachable, regardless of its motivation. And he did not endorse Trump’s behavior. Instead, Dershowitz asserted the Senate should not be in the business of removing elected presidents based on nebulous and unconstitutional “abuse of power” or “obstruction of Congress” charges that the framers expressly rejected.
“I have never said that a president can do anything if he believes that his election is in the public interest to get reelected,” Dershowitz told Toobin and CNN anchor Wolf Blitzer. “That’s simply false. I started my speech in the Senate by saying I completely support the impeachment of [Richard] Nixon, who everything he did, he did because he wanted to get reelected. And clearly he thought his reelection was in the public interest.”
He added: “I never said, never suggested — and it was a total distortion, not a misunderstanding, distortion of my point — that I think a president can do anything … It’s nonsense. And your network should never have said that.”
“What’s wrong with looking at whether a president has a corrupt intent in his actions?” Toobin responded. “I mean, that seems to be the heart that is the issue here.”
“It’s not, it’s not,” Dershowitz said. “The question is how you define corrupt, and my argument was there’s a big difference between taking a bribe — I gave an example right on the floor of the Senate. If the president said, ‘I’m not giving you your money, I’m withholding the money unless you let me build a hotel and have my name on it or give me a million-dollar kickback.’ That’s corrupt. That’s clear.”
Dershowitz went on to say it would be a “dangerous” principle to say that a president can be impeached if he acts, in part, due to personal political motivation, because “it will allow impeachment of any president who look to his own reelectability as even a small factor.”
To demonstrate that point in the Senate on Wednesday, Dershowitz made thinly veiled references to former President Barack Obama’s refusal to send military aid to Ukraine, as well as his failed, unenforced “red line” warning for Syria not to use chemical weapons. Obama was also caught on a hot microphone promising Russia’s president he would have “more flexibility” on missile defense issues after the 2012 election.
“Let’s consider a hypothetical,” Dershowitz said. “Let’s assume that President Obama had been told by his advisors that it really is important to send lethal weapons to the Ukraine. But then he gets a call from his pollster and his political adviser, who says we know it’s in the national interest to send lethal weapons to the Ukraine, but we’re telling you that the left-wing of your party is really going to give you a hard time if you start selling lethal weapons and potentially get into a lethal war with Russia. Would anybody here suggest that is impeachable?”
He continued: “Or let’s assume President Obama said, ‘I promise to bomb Syria if they had chemical weapons. But I’m now told by my pollster that bombing Syria would hurt my electoral chances.’ Simply not impeachable at all.”
Earlier in the day, also on CNN, Harvard Law School professor Nikolas Bowie disputed Dershowitz as to whether “maladministration” — a term the framers rejected as a viable grounds for impeachment — was essentially the same as “abuse of power,” one of the Democrats’ charges against Trump.
Bowie called Dershowitz’s interpretation a “joke,” in a slam that was especially notable because Dershowitz had cited Bowie’s scholarship on the Senate floor.
Dershowitz was simply wrong, Bowie argued, that maladministration is synonymous with abuse of power. The former is equivalent to doing your best but turning in poor work product, he argued; the latter is fundamentally criminal, even if it’s not defined anywhere in a statute.
Fox News’ Mike Emanuel, Marisa Schultz and Charles Crietz contributed to this report.