It's Friday, January 31. Day 11 of the impeachment trial of Donald Trump. Every morning, the Impeachment Today podcast helps you separate what’s real and groundbreaking from what’s just, well, bullshit.
You can listen to today's episode below, or check it out on the iHeartRadio app, Apple Podcasts, Spotify, or wherever you listen to your favorite shows.
It's Friday, January 31st, 2020. Day 11 of the impeachment trial of President Donald J. Trump and this is Impeachment Today.
Good morning. I'm Hayes Brown, reporter and editor at BuzzFeed News. It is crunch time in the Senate. Today is the day when they'll decide whether they want witnesses in the trial, or if this whole thing will be wrapped up by Monday. We're going to have a Saturday episode for tomorrow either way, but I'm shvitzing over here with anxiety.
With that in mind, let's turn back the clock to recap what happened in the trial yesterday. The Senate was back in action on Thursday, putting forward all the hard-hitting questions that you'd hope would get asked in such a momentous and historic trial.
Speaker:
The question from Senator Braun and Barrasso for counsel for the president. The House managers have said the country must be saved from this president and he does not have the best interests of the American people and their families in mind. Do you wish to respond to that claim?
Hayes Brown:
Or, it will be mostly another series of softball questions gently lobbed over the plate to your preferred side. Now granted, there was a clear disparity in the tone of the questions. Senate Democrats for the most part pressed the House manager to lay out more details of their case for how the president both abused his power and tried to hide that abuse by refusing to provide vital information to Congress.
Senate Republicans meanwhile implored the president's lawyers to explain why the House managers are mean. The arguments put forward yesterday were pretty similar to those from Wednesday, but this time with an extra focus on whether or not the president even did anything worthy of being removed from office.
That shift came after one of the president's lawyers, Alan Dershowitz, basically said on Wednesday, and I'm paraphrasing here, that anything a president does to get reelected would be in the national interest and therefore not impeachable. In that vein, Senator Lisa Murkowski, long seen as one of the potential Republican swing votes on whether to have witnesses or not asked both sides where the lines should be, since everyone in office is thinking about their reelection chances all the time. And that exchange was one of the most serious of the day. One that you could actually say was something like a real debate.
So let's take a listen in on the answers. Here's Deputy White House counsel Patrick Philbin, arguing that being motivated by your political fortunes alone is not enough for removal.
Patrick Philbin:
As I mentioned the other day, in a representative democracy, elected officials almost always have at least one eye looking onto the next election and how their actions, their policy decisions, their actions in office will be received by the electorate. And there's nothing wrong with that. That's good. It's part of the way representative democracy works.
So having part of your motives looking towards the next election, looking towards how that will affect electoral chances, that's part of the nature of elected office. And to start getting into motives about, will this affect my prospects in the next election and calling that corrupt, and if you've got that as part of your motive, looking into whether you are doing something for electoral advantage and saying that's going to be a corrupt motive, we'll say that you can be charged for wrongdoing with that or impeached is very dangerous.
Because there's almost no way to get inside someone's head and parcel out which percentage was one motive, which percentage was another motive.
HB:
And here's what lead House manager Adam Schiff had to say in response about where the lines should be drawn.
Adam Schiff:
Yes, the public officials are inherently political animals. I don't mean that in a derogatory term. They run for office, they hold office, they conduct acts as political figures. But if we look at what Hamilton had to say about the core offenses that warrant the impeachment power, he talked about the crimes being political in character and the remedies being political in character.
Because we're not talking about imprisonment here. We're not talking about taking away someone's liberty. We're talking about a political punishment for a political crime. Now, what's a political crime? Yes, everyone in office has a political motivation, but certainly that doesn't mean that we can't draw a line between corrupt activity that is undertaken, yes, for a political reason and non-corrupt activity. Indeed, we have to draw that line.
HB:
This is all a fascinating academic debate, but we're talking about some specific charges. Charges that show that the president did in fact want to use investigations secretly extorted from Ukraine as a way to kneecap his main rival in this year's election. And as the House managers noted again and again, they were having to fight with one hand tied behind their backs, as the White House has refused to turn over documents or provide witnesses who were subpoenaed.
The defense has been using a bit of a tautology in their arguments, saying that the House has no case because they don't have witnesses or documents to prove it. Therefore, the president does not have to provide witnesses or documents that could boost the House's case. Here's Adam Schiff pointing out how absurd the arguments from the Trump administration have been.
Adam Schiff:
Today, while we've been debating whether a president can be impeached for essentially bogus claims of privilege, for attempting to use the courts to cover up misconduct, the Justice Department in resisting House subpoenas is in court today and was asked, well, if the Congress can't come to the court to enforce its subpoenas, because as we know, they're in here arguing, Congress must go to court to enforce the subpoenas, but then the court is saying, Congress, thou shall not do that.
So the judge says, if the Congress can't enforce its subpoenas in court, then what remedy is there? And the Justice Department lawyers response is impeachment, impeachment. You can't make this up. What more evidence do we need of the bad faith of this effort to cover up?
I said the other day, they're in this court, making this argument. They're down the street making the other argument. I didn't think they'd make it on the same day, but that's exactly what's going on.
HB:
Meanwhile, the House managers had a bit of a misstep when asked a question about the Steele dossier. That's the collection of reports gathered during the 2016 election that suggested Russian involvement in the Trump campaign. Specifically, they were asked would that dossier count as foreign interference under the House manager standards? Manager Hakeem Jeffries' answer was not great.
Hakeem Jeffries:
The analogy is not applicable to the present situation, because first, to the extent that opposition research was obtained, it was opposition research that was purchased.
HB:
He went on to say that the dossier was just a distraction here from the real point, but the damage was done and the president's defense team predictably pounced.
Jay Sekulow:
I guess you could buy... This is what it sounds like. You can buy a foreign interference. If you purchase it, you purchase their opposition research, I guess it's okay.
HB:
Touche, Mr. Sekulow, touche.
As the day went on, the question of witnesses hung over the entire proceeding as it has for the last two weeks, in hopes of locking in potentially wavering supporters, Schiff made an offer to the Senate that he hoped they couldn't refuse.
Adam Schiff:
You can imagine the scene in any courtroom in America, where before the trial begins, defense counsel for the defendant stands up and says, your honor, if the prosecution case is so strong, let them prove it without witnesses. That's essentially what's being argued here.
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. In the Clinton trial, there was one week of depositions and you know what the Senate did during that week? They did the business of the Senate.
The Senate went back to its ordinary legislative business, while the depositions were being conducted. You want the Clinton model? Let's use the Clinton model. Let's take a week. Let's take a week to have a fair trial. You can continue your business. We can get the business of the country done. Is that too much to ask in the name of fairness?
HB:
A week off would be appreciated by the senators, I'm sure, but as the defense pointed out, that would be a hustle to get witnesses to post and documents turned over and sorted through in that short a time. As the sun set, all attention turned to Tennessee GOP Senator Lamar Alexander. He's been speculated to be the mythical fourth Republican vote that would unlock witnesses and keep the trial going.
He submitted his first question Thursday night, asking the House managers about bipartisanship in prior impeachments. Here's what manager Zoe Lofgren, who was on the judiciary committee staff during Watergate and in the House during the Clinton impeachment said first about the Nixon case.
Zoe Lofgren:
In the Nixon impeachment, we look back and we think about the vote on the House judiciary committee that ended up bipartisan, but it didn't start that way. The parties were as dug in as parties are today. The Republicans and Democrats saw it differently, but as the evidence emerged, a bipartisan consensus emerged on the committee and a number of Republicans, Tom Railsback, who just passed away, Caldwell Butler, who loved Richard Nixon. He was a huge fan of Richard Nixon.
But they couldn't turn away from the evidence that their president had committed abuse of power, cheat in the election and that they had to vote to impeach him.
HB:
And then the Clinton trial.
Zoe Lofgren:
We had private misconduct, yes. I think probably a crime because he lied about that under oath, but it wasn't misuse of presidential authority. As I said, any husband caught in an affair could have lied about it and it didn't involve the use of presidential authority. And so we never got beyond our partisan divisions on that and many of us, and I will include myself, believe that it was being done for a partisan purpose, because it didn't reach a high crime and misdemeanor.
HB:
Alexander, who's been reportedly sitting on the Senate floor reading a copy of the book, Impeachment and American History, told reporters during the next break that he'd make up his mind on tomorrow's vote after the last question has been answered. He also said he would let everyone know how he'd vote before the night ends. Lamar Alexander, friends, queen of the drama.
In the end, in a statement released late last night, Alexander announced that he would not be a vote in favor of witnesses, all but guaranteeing that the motion will fail. Things could still change by the time they actually vote this afternoon. But barring something huge shifting, the trial will be ending before most people head back to work after the weekend.
And now, in today's... what? We have our reading from our Nixometer.
On our scale, a zero is a normal day in a normal White House and 10 is President Richard Nixon resigning and flying away in Marine One. And this morning we're at a 6.1. What a drop, right?
But with Alexander's announcement last night, it's extremely hard to see just who would be a fourth GOP vote in favor of witnesses. Chief Justice John Roberts could try to break any tie as some predicted he may, but given his general, well, conservative nature, it seems unlikely. That means it's more likely than not we'll have a vote on the articles themselves in the next 48 hours and all signs point towards an easy acquittal for Trump.
After the break, we've got all the really weird things that happened around the trial yesterday. Stick around.
Welcome back. It's time for our segment, what the fuck was that? It's where we take a look at some of the weird and wild things that happened both in and out of the Senate chamber. We begin with the president's defense lawyer, Eric Hirschman, using his time on the Senate floor to have a little campaign rally for the president, arguing that the wall is a reason to acquit Trump. Really. Have a listen.
Eric Hirschman:
We trust the American people to decide who should be our president. Candidly, it's crazy to think otherwise. So what's really going on? What's really going on is that he's a threat to them, and he's an immediate legitimate threat to them, and he's an immediate legitimate threat to their candidates because the election is only eight months away.
Let's talk about some of the things the president has done. We've replaced NAFTA with the historic MCA. We've killed a terrorist, Al-Baghdadi and Soleimani. We secured $738 billion to rebuild the military. There were more than 7 million jobs created since the election. Illegal border crossings are down 78% since May and 100 miles of the wall had been built. The unemployment rate is the lowest in 50 years.
HB:
Aside from some of those statistics being wildly misleading, none of that says the president did not do what the House manager said he did. And it's bonkers to think that arguing that the president is doing what you say is a good job means he can stay in office, when he's trying to violate the Constitution.
The process of asking questions has been pretty boring for the most part. Someone stands, Chief Justice John Roberts recognizes them. Their question is presented to the Chief Justice to be read aloud.
But Senator Elizabeth Warren shuts them real... Oh my God, did she do that, energy into the process when she sent this question up for Roberts to read.
John Roberts:
The question from Senator Warren is for the House managers. 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?
HB:
Damn. Long time listeners will know that Roberts sees himself as an upholder of the Supreme Court as an independent institution, so that question had to get under his skin. There was one other real eyebrow raising moment from Roberts, this time thanks to Senator Rand Paul. Here's what happened when Paul sent a question up this morning.
Rand Paul:
Mr. Chief Justice?
House Speaker:
Senator from Kentucky.
Rand Paul:
I have a question to present to the desk for the House manager Schiff and for the president's council.
House Speaker:
Thank you.
Rand Paul:
The presiding officer declines to read the question as submitted.
HB:
Paul quickly ran to journalists to complain that his totally legit question was being blocked. That question which he tweeted out, was asking about a person that a bunch of people in the far right wing internet swimming pool of madness think is the whistleblower. Paul's question would have named that person and accused him of a scheme to impeach the president.
Later in the day, Senator Ted Cruz and a few others did manage to get in a question that they'd hoped would prompt both sides to talk about the whistleblower and claims that said whistleblower had plotted to topple the Trump presidency. Adam Schiff was not pleased.
Adam Schiff:
If it weren't for this whistle blower, we wouldn't know about this misconduct and that might be just as well for this precedent, but it would not be good for this country. I worry that future people that see wrongdoing are going to watch how this person has been treated, the threats against this person's life. And they're going to say, why stick my neck out? Is my name going to be dragged through the mud? Will people join our staff if they know that their names are going to be dragged through the mud?
HB:
Trump's private attorney, Jay Sekulow, to his credit also did not take the bait and tried to out the whistleblower, but he did defend the idea that asking for the name of the whistleblower is totally legit, because, well, reasons.
And finally, at one point a question from several Republicans mentioned Benghazi. At which point I contemplated getting myself into the sun.
Okay, it's time for the latest edition of Trial Watch 2020. It's where we run down what's happening next in the Senate impeachment trial. And guys, today's a really big day. Huge. Today, we'll decide if we keep going with this trial or if things wrap up and have the president acquainted before the weekend is over. Senator Lamar Alexander's announcement last night somehow has not lowered the stakes.
Here's the order of events for today. First up, when the Senate trial reconvenes at 1:00 p.m. the clock will start on four hours of debate over witnesses between the House managers and the president's defense. That gets us through the afternoon.
From there, the rules the Republican majority pushed through last week are a bit squishy. The resolution just says that the four hours of debate will be, quote, followed by deliberation by the Senate if so ordered under the impeachment rules on the question of whether it shall be an order, to consider debate under the impeachment rules on any motion, subpoena witnesses and documents. That could mean that there's debate among the senators that will happen after the four hours is done.
That doesn't seem to be the case, but I'm suspicious in any case. The rules then say to the Senate will decide whether it will be an order to call witnesses without any motions or amendments up for debate, before they get to voting. And that's where things get even more wobbly.
If there are 51 votes in favor, all hell breaks loose. The hell mouth opens. Cats and dogs living together, mass hysteria, by which I mean the House managers and the president's counsel will then have the chance to motion for subpoenas for witnesses and the Chief Justice will rule on those motions. The Senate could then vote to overturn any of those decisions from the Chief Justice. Each of those votes would require 51 senators to agree.
And then there's a whole to-do over documents and how that'll work and oh God, it'll be a minute while that's worked out. Or, the vote for witnesses could fail. The Democrats would then likely make as many motions as they could, forcing a repeat of the first full night of the trial, where they made Republicans take embarrassing vote after embarrassing vote.
But that would still mean that we'd be careening towards a vote on the articles of impeachment at either as early o'clock in the morning or Saturday afternoon when the Senate reconvenes. And that's not even going into what the hell happens if the Senate ties 50/50 in any of these votes. Because nobody can say for certain. So in short, I have no idea what is happening. This concludes Trial Watch 2020.
That's it for today. Tomorrow, we'll have something for you. I really have no idea how things will go down, but there will definitely be an episode to download. Tune in for the thrilling, maybe, conclusion.
Thanks to all of you out there who have subscribed to the show. It feels like a weird time to say so. But if you're listening for the first time or just haven't gotten around to it, be sure to subscribe to Impeachment Today on the iHeartRadio app, Apple Podcasts, Spotify, or wherever you go to hear my disembodied voice. You're going to want to stick around as we figure out how this all ends together.