January 31, 2020

Daily Senate Impeachment Trial Update: January 31

Friday’s crucial vote on whether to allow witnesses:


  • AP: “Senate jurors peppered President Donald Trump’s defenders and accusers with final questions at his impeachment trial Thursday ahead of a crucial vote on calling witnesses, the focus shifting from details of the charges to whether it was time to simply acquit and conclude the trial. The vote on witnesses, expected Friday, could lead to an abrupt end of the trial with the expected acquittal. Or, less likely, it could bring weeks more of argument as Democrats press to hear testimony from former national security adviser John Bolton and others.”


  • Politico: “Senate Republican leaders are feeling increasingly assured they can knock down an attempt to call more witnesses during President Donald Trump’s impeachment trial and wrap up the whole thing by the weekend — though plenty of drama still remains. The pool of potential yes votes for witnesses is continuing to shrink, with few undecided Republican senators left to join the 47 Senate Democrats who will vote to extend the trial and hear new evidence. All speculation in the Senate centers on GOP Sens. Lisa Murkowski of Alaska and Lamar Alexander of Tennessee, the potential 50th and 51st votes for witnesses, respectively. Republicans anticipate at least one will side with Senate Majority Leader Mitch McConnell (R-Ky.) and sink the witness vote, though they concede the final tally is up in the air, according to senators and aides. McConnell told reporters Thursday he’s ‘always’ confident. And now the GOP leadership is beginning to think about the endgame of the trial, strategizing how to end things quickly if the vote to seek more evidence fails on Friday. Senate Minority Leader Chuck Schumer (D-N.Y.) isn’t going to just roll over and allow a quick acquittal of Trump, but Republicans say they will move to a final vote on a verdict as soon as they can.”


  • CNN: Analysis: Why 2020 Senate Republicans will vote against impeachment witnesses  |  “Gardner and his colleagues in similar positions -- Sens. Martha McSally of Arizona, Thom Tillis of North Carolina, Joni Ernst of Iowa, etc. -- believe (or have been convinced) that a short impeachment trial ending with total support for Trump is their best chance to get reelected.”


  • New York Times: Alexander, Conceding Case Against Trump, Announces Vote to Block Witnesses  |  “Senator Lamar Alexander, Republican of Tennessee, said late Thursday that although he believed that Democrats had proved their case that President Trump acted “inappropriately” in his dealings with Ukraine, he did not think the president’s actions were impeachable and would vote against considering new evidence in the impeachment trial.”


Rep. Adam Schiff proposes limiting the deposition period for witnesses to single week:

  • New York Times: Schiff proposes using a single week to depose witnesses.  |  “In an effort to rebuff arguments that calling witnesses would prolong the trial, Representative Adam B. Schiff, Democrat of California and the lead House impeachment manager, suggested limiting the depositions of witnesses to one week. It was the same length of time used during the Clinton impeachment trial in 1999, he said, and the Senate, as it did then, could return to its regular legislative business for that week. ‘Is that too much to ask in the name of fairness — that we follow the Clinton model, that we take one week?’ he asked. ‘Are we really driven by the timing of the State of the Union, should that be a guiding principle? Can’t we take one week to hear from these witnesses?’”


  • NBC News: Schiff offers to limit witness depositions to a week after defense laments an protracted trial  |  ‘I will make an offer to opposing counsel who have said that this will stretch on indefinitely if you decide to have a single witness: Let's cabin the depositions to one week,’ Schiff said.”


Alan Dershowitz clarifies his argument that a president soliciting foreign interference to boost reelection is inherently in the public interest, and thus, unimpeachable.


  • NBC News: 'Nonsense...preposterous...absurd': Critics lecture Prof. Dershowitz about trial remarks


  • Business Insider: Harvard professor slams Trump's lawyer for incorrectly citing him numerous times during Trump's impeachment trial: 'It's a joke'


  • NBC Legal Analyst Maya Wiley: Trump impeachment defender Alan Dershowitz's quid pro quo argument is absurd.  But more than legally laughable, Dershowitz's extreme position should scare us. It would certainly scare the founders.


  • Mediaite: Adam Schiff Pummels Dershowitz’s Trump Defense: ‘Most Absurdly Dangerous Argument That Could Have Been Made’


  • Washington Post: “President Trump’s lawyer Alan Dershowitz pushed back Thursday against a swell of criticism as he scrambled to explain his controversial assertion that a president’s action, even if taken for personal, political gain, does not warrant removal from office so long as it is done in the public interest. In a flurry of tweets, Dershowitz said his broad defense of the president one day earlier was mischaracterized and ‘willfully distorted’ by the media, politicians and his academic colleagues.”


  • HuffPost: Republicans Defend Trump Argument That Accepting Foreign Help In Elections Is OK  |  “Republicans now say that soliciting or accepting help from foreign governments in U.S. elections is acceptable, after once pushing back on the notion when President Donald Trump floated it in an interview last year. Democrats have been left ‘stunned’ after Trump’s impeachment defense team suggested during the Q&A portion of the Senate impeachment trial that soliciting or accepting information from foreign governments about one’s political rivals is OK so long as the information is ‘credible.’”


  • Politico: “Senate Intelligence Committee Chairman Richard Burr (R-N.C.) said he has ‘no problem’ with a White House lawyer’s argument that American politicians can accept damaging information on their opponents from a foreign country — a contention that fueled a heated back-and-forth late Thursday on the Senate floor.”


  • CNN: Analysis: Republican theory for Trump acquittal could unleash unrestrained presidential power


Trump’s DOJ argued in a court case Thursday that if the president ignores subpoenas, impeachment is a proper enforcement mechanism.


  • CNN: “A Justice Department lawyer said Thursday in federal court that the House can impeach a president over ignored subpoenas, a noted contrast to what lawyers for President Donald Trump are arguing at his Senate impeachment trial this week. Asked by a federal judge what the House can do to enforce its subpoenas, Justice Department lawyer James Burnham said without hesitation that the House can use its impeachment powers, among other options, like withholding appropriations.”


  • Mother Jones: “Donald Trump’s own Justice Department did something remarkable on Thursday: It managed to undermine the president’s legal defense in his impeachment trial. During an unrelated federal court hearing Thursday about House Democrats’ investigation of Trump’s failed efforts to add a citizenship question to the 2020 census, a federal judge asked DOJ lawyers what the House could do to enforce subpoenas that the administration has ignored. Justice Department lawyer James Burnham said that impeachment was an option… Lead House impeachment manager Rep. Adam Schiff (D-Calif.) brought up the contradiction during the impeachment trial Thursday. “You can’t make this stuff up,” he said. ‘The judge says, If the Congress can’t enforce its subpoenas in court, then what remedy is there? And the Justice Department lawyer’s response is: Impeachment. I mean, what more evidence do we need of the bad faith of this effort to cover up?’”


  • New York Times: Trump administration says impeachment is legitimate and not, on the same day.


  • Washington Post: Analysis: Where the goal posts are: Trump’s legal team argues he didn’t ask for an investigation into Biden


In response to the first bipartisan question submitted in the Senate trial, Trump’s defense team asserted Rudy Giuliani had not violated the Logan Act because he was not carrying out foreign policy.

  • Politico: Trump attorney says no private citizen carried out foreign policy  | “Trump lawyer Patrick Philbin told the senators that there was no American foreign policy being carried out by a private citizen. He said Rudy Giuliani, Trump’s personal attorney who sought the Ukraine-led investigations of the Bidens, was simply a source of information for Trump who knew about Ukraine and spoke frequently with the president. Several witnesses who testified before House investigators said Trump had directed them to work with Giuliani… This was the first bipartisan question in the two days of the Q & A period so far — and it was a revealing one. The question prefaced with the Logan Act, which prohibits private American citizens to interact with foreign governments on behalf of the United States. It suggests that both Collins and Murkowski — who are considered to be the swing votes on the question of whether Trump should be acquitted or convicted — believe that Trump’s decision to deputize Giuliani was improper.”


  • NBC News: White House's Philbin suggests president will keep using Giuliani as international 'confidante'  |  “House manager Adam Schiff called Philbin's comments a ‘breathtaking admission,’ given Trump's lawyers have maintained the president withheld aid to Ukraine as a matter of policy. ‘What president's counsel said was that no foreign policy was being conducted by a private party here. That is, Rudy Giuliani was not conducting U.S. foreign policy. Rudy Giuliani was not conducting policy," Schiff said. "The investigations Giuliani was charged with trying to get Ukraine to announce into Joe Biden, into this Russian propaganda theory, they just admitted, was not part of policy.’ It was, Schiff said, ‘a domestic political errand,’ referring to the testimony of ex-White House Russia expert Fiona Hill.”


  • The Week: Schiff pounces on Trump lawyer who seemingly admits investigations in Ukraine weren't 'foreign policy'


  • Raw Story: Adam Schiff: ‘They’ve just undermined their entire argument’ saying Giuliani was acting on foreign policy


More on Giuliani:


  • New York Times: A question goes unanswered: Who pays Giuliani’s legal fees?  |  “For a moment, it looked like one mystery that has lingered for nearly a year might finally be answered: Who was paying Rudolph W. Giuliani’s legal bills as he attempted to pressure Ukraine’s president to investigate Hunter Biden? Mr. Giuliani has said that he is working for free — or pro bono, in legalese — for President Trump, despite the considerable costs associated with his work, including traveling at times to Ukraine and often to Washington… Instead, Mr. Sekulow used his allotted time to talk about former Vice President Joseph R. Biden Jr. and his interaction with Ukraine, while Hunter Biden, his son, was on the board of a gas company there… He walked away, leaving the mystery of Mr. Giuliani’s legal fees unsolved.”


  • Washington Post: Analysis: Trump lawyer Jay Sekulow really doesn’t want to talk about who’s paying Rudy Giuliani  |  “For all of the focus on corruption and foreign influence that lingers around the Senate’s impeachment trial of President Trump, there’s a significant potentially overlapping question that remains unanswered: Who’s paying Rudolph W. Giuliani, Trump’s personal attorney?... Then it was Trump attorney Jay Sekulow’s turn. He started talking before he even got to the microphone, he was so indignant. Or so he’d have us believe… What Sekulow’s doing here is obvious. He’s spinning, in the classic sense, redirecting the question away from Trump’s attorney and back to former vice president Joe Biden… The two are not equivalent in any sense. Sekulow seems to have raised it mostly because it had just been discussed by another lawyer on his team and therefore was something he could seize on as part of the performative outrage in his speech.”


More on Lev Parnas:


  • Washington Post: New recording shows access Lev Parnas and Igor Fruman had to Trump at Mar-a-Lago donor event  |  “Ten days before Lev Parnas and Igor Fruman dined with President Trump at his Washington hotel, they were part of a small group of Republican Party donors who met with the president at Mar-a-Lago, his Florida estate, a new recording shows… The recordings of the two events undercut Trump’s repeated assertions that he does not know Parnas and Fruman, who were arrested in October on campaign finance charges. ‘I don’t know those gentleman,’ Trump said at the time… In an interview, Parnas said the back-to-back events he attended with Trump shows the proximity they had to the president. ‘When Trump would see us, he would call us my boys,’ he said. ‘Me and Igor together? It’s not something you’d forget, particularly in that scene.’”


  • ABC News: Second tape shows Trump meeting with congressman and Giuliani associates Lev Parnas and Igor Fruman  |  “Trump, who is in the midst of his impeachment trial, has insisted he does not know the two businessmen, Lev Parnas and Igor Fruman, who also helped Giuliani dig into since-discredited allegations that Democratic presidential candidate Joe Biden corruptly sought to protect his son from a Ukrainian investigation he was in office. But the tape, provided to ABC News by a lawyer for Parnas, is the second video to surface in the past week showing both Parnas and Fruman meeting with Trump in early 2018.”


  • Politico: New video shows indicted Giuliani associate with RNC chief Ronna McDaniel  |  “The encounter suggests a level of familiarity with Fruman, who along with Parnas donated more than $600,000 to 26 federal candidates, all Republicans, in 2016 and 2018. Most of the then-candidates who are now sitting members of Congress and plan to run for re-election in 2020, including House Minority Leader Kevin McCarthy, pledged to return the donations shortly after the indictment was made public.”


  • Washington Post: Analysis: Here are the times that we know Lev Parnas interacted with President Trump  |  “In an effort to answer those questions, we looked through all of the images including both Trump and Parnas that we could find. We identified 11 discrete occasions on which the two were in the proximity of one another — several of which have since been reported to have included detailed political conversations.”


With the prospect of Republicans blocking witnesses and hastily acquitting Trump looming, Sen. Elizabeth Warren submitted a poignant question to Chief Justice Roberts asking whether him presiding over a sham trial will further undermine Americans’ faith in institutions like the Supreme Court. 


  • Mother Jones: Elizabeth Warren Just Made John Roberts Ask a Question About His Own Legitimacy  |  “Chief Justice John Roberts read the note card submitted by the presidential candidate: ‘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 pursed his lips as he waited for lead House impeachment manager Adam Schiff to respond. ‘I would not say that it contributes to a loss of confidence in the Chief Justice,” Schiff said. “I think the Chief Justice has presided admirably.’ ‘We don’t always live up to our ideals,’ he continued, ‘but this trial is part of our constitutional heritage, that we were given the power to impeach the president. I don’t think a trial without witnesses reflects adversely on the Chief Justice. I do think it reflects adversely on us. I think it diminishes the power of this example to the rest of the world.’”


  • Vanity Fair: “Schiff did agree with Warren that a failure to call witnesses would damage the public's faith in American government, however, saying that the move ‘will feed cynicism, about this institution, that we may disagree on the president's conduct or not, but we can't even get a fair trial. We can't even get a fair shake for the American people.’ The lawmaker pointed to the Senate's potential refusal to even call John Bolton to testify, exclaiming, ‘God forbid we should hear what a relevant witness has to say.’”


  • Politico: “[L]iberals who wish Roberts would be more active in the trial praised the query.”

Executive Power, Separation of Powers and Federalism