Chief Justice John Roberts presides over a “trial” without witnesses or documents.
Handout/Getty Images
On Wednesday, Senate Majority Leader Mitch McConnell reportedly edged closer to completing an impeachment trial of President Donald Trump with no witnesses or subpoenas for documents. It would be the first ever impeachment trial without testimony and evidence in the history of the Senate and the chef d’oeuvre in McConnell’s storied career of dismantling the norms of that body in order to will the Republican Party to power.
The Democratic minority needs to win four Republicans to its side before Friday, if it hopes to force the Senate to consider hearing from witnesses with direct knowledge of Trump’s efforts to secretly pressure Ukraine into attacking his political rivals. Key senators on the Republican side appeared, though, to be falling neatly in line behind McConnell. Sen. Cory Gardner of Colorado told Colorado Politics on Wednesday that he did not want to hear from any more witnesses—including former national security advisor John Bolton, who has reportedly written in his forthcoming book that Trump told him that Ukraine aid was tied to political investigations, contrary to months of “no quid pro quo” claims from the president. Alex Bolton of the Hill, meanwhile, reported that McConnell had met on Wednesday morning with potential fence-sitter Sen. Lisa Murkowski of Alaska, and that “it was clear at the Senate GOP lunch that the votes are there to defeat a motion for additional witnesses.”
Still, between now and the vote, the show trial must go on. On Wednesday that meant the first of two scheduled days in which senators are asking questions of the House managers and the president’s attorneys via notes passed to the trial’s presiding officer, Chief Justice John Roberts. The questions themselves demonstrated how, despite the Bolton revelations over the weekend, the Republican Senators are going to justify declining to call him as a witness. What they will say is this: Quid pro quos are totally fine now.
Near the start of the questions, Harvard Law professor Alan Dershowitz put forth this argument after being asked by Sen. Ted Cruz: “As a matter of law, does it matter if there was a quid pro quo? Is it true that quid pro quos are often used in foreign policy?”
Dershowitz answered with a rambling response that is at the heart of the Republican refusal to hear from witnesses: We don’t need to know the truth, because even if the president did what you are accusing him of—and what he has denied for months—he was only doing what he thought was best for the country.
“Every public official that I know believes that his election is in the public interest,” Dershowitz said of the allegation that Trump tried to gain an illicit advantage in the upcoming election by getting Ukraine to announce an investigation of Vice President Joe Biden. “And if a president does something, which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.” Basically, if Trump cheats in the election, so what. He’s doing it for America! This is the absolute distillation of the Trumpian worldview that he is the state, the state is him, and his supporters—and his supporters alone—are the people. Dershowitz went so far at one point as to compare Trump to Abraham Lincoln in his effort to win re-election while simultaneously seeking to preserve the union during the Civil War.
“He believed that his own election was essential to victory in the Civil War,” Dershowitz said of Lincoln. “Every president believes that, that’s why it’s so dangerous to try to psychoanalyze a president, to try to get into the intricacies of the human mind.”
He continued:
It would be a much harder case if a hypothetical president of the United States said to a hypothetical leader of a foreign country unless you build a hotel with my name on it and unless you give me a million-dollar kickback, I will withhold the funds. That’s an easy case, that’s purely corrupt and in the purely private interests. But a complex middle case is ‘I want to be elected! I think I’m a great president! I think I’m the greatest president there ever was and if I’m not elected, the national interest will suffer greatly.’ That cannot be an impeachable offense.
Again, Dershowitz’s arguments amount to saying Trump can use national security money to extort a foreign adversary into smearing his political rivals because Trump thinks defeating his political rivals is good for America. It is insane. It is also quickly becoming the position of the Republican Party.
As Sen. John Barrasso of Wyoming said on Wednesday: “I would go one step further to say that even if everything in Bolton’s book happens to be true, and everything he testifies to happens to be true, if he happens to be called, I still do not believe that that rises to the level of the impeachable offenses that the House has charged the president with.”
The “so-what” defense was the logical endpoint of Republicans in the House and Senate refusing to hear evidence and witnesses and standing by a president who has so obviously violated his oath of office and sought to corrupt American elections. Sure, he is trying to do a quid pro quo, but it happens. Maybe he thought it was good for the country to have a foreign power investigate his opponent?
The evidentiary record and common sense in this case gave consistently demonstrated the opposite. As the House managers repeatedly noted on Wednesday, Trump only sought for the Bidens to be investigated once the former vice president became an electoral threat to him personally. If the president believed it was proper to use military aid to pressure Ukraine to investigate Biden, why did he deny that there was a “quid pro quo” dozens of times? And why did he go to such lengths to keep his efforts secret—why did he try to keep his administration’s fingerprints off of what would appear to the public to be an “independent” investigation by Ukraine of Biden and his son Hunter, which the Trump campaign could then point to as independent proof that his opponent was corrupt? Why also did he not publicly make the case for his own Justice Department to investigate the Bidens, and why didn’t the foreign policy officials who pushed for the investigation announcement issue an official request on behalf of the Department of Justice using the two country’s mutual legal assistance treaty, as Ukraine officials themselves requested? Finally, and decisively, why did Trump’s underlings seek merely an “announcement” of an investigation, as Ambassador to the European Union Gordon Sondland testified, if Trump was driven by his concern about learning the truth about a natural gas company in Ukraine?
The whole premise that Trump’s motives were innocent is absurd, but as House Manager Rep. Adam Schiff pointed out, there is an easy way to establish even more definitively that Trump’s motives were corrupt. “All quid pros are not the same. Some are legitimate and some are corrupt, and you don’t need to be a mind reader to figure out which is which,” Schiff argued. “For one thing, you can ask John Bolton.”
Schiff has claimed repeatedly throughout this trial—and he did again during the Senators’ questions on Wednesday—that the full truth of Trump’s actions would eventually come out even if Republican Senators refuse to call witnesses. “There are going to continue to be revelations and members of this body on both sides of the aisle are going to have to answer questions each time: Why didn’t you want to know that when it would have helped inform your decision?” Schiff argued. “In every other trial in the land, you call witnesses to find out what you can.”
The White House, though, is doing everything it can—with the support of McConnell and the Republican-controlled Senate—to prevent that truth from coming out. On Wednesday, it was also revealed that National Security Council lawyers sent a letter to Bolton’s attorney last week telling him that the manuscript of his book that he submitted for review “appears to contain significant amounts of classified information” and that “the manuscript may not be published or otherwise disclosed without the deletion of this classified information.” Bolton’s attorney, Charles J. Cooper, further revealed on Wednesday that he had sent a response letter saying that there was no plausible basis to claim classified status over the Ukraine portions of the book. “We do not believe that any of that information could reasonably be considered classified,” Cooper wrote to the NSC lawyers. He said on Wednesday that he had not yet received a response.
Cooper also noted that if Bolton testified publicly, that “he will be asked questions that will elicit much of the information contained in the chapter of his manuscript dealing with his involvement in matters relating to Ukraine.” At this point, public testimony may be the only way for Bolton to get around the White House’s efforts to block his story from coming out, and to successfully cash in on his book.
If the vote in the Senate denies him that opportunity, the only way for that to happen will be for the House of Representatives to subpoena his testimony and for him to appear. This was in fact the suggestion of Republican Sen. Tim Scott of South Carolina on Wednesday. “If you want to hear from Mr. Bolton, you can do it in the House,” he said. “If they want to make [the case] better, they can do that by calling Mr. Bolton in the House, where they have an opportunity.”
When I asked Schiff’s office on Wednesday if he might call Bolton before the House Intelligence Committee, which he chairs, if Senators vote down testimony, the office referred me to the answer he gave on Tuesday.
“I’m not going to discuss what backup, fallback position there is,” Schiff said at the time. “At the end of the day, nothing is sufficient if the Senate doesn’t decide to have a fair trial. And you simply can’t have a fair trial without witnesses.”
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