“Eventually, this will all come out,” said Rep. Jason Crow of Colorado, another of the Democratic impeachment managers. “We will have answers to these questions. The question now is if we will have them in time, and who here will be on the right side of history.”
The effort lasted hours and got Democrats nowhere in the Senate, as their pleas were rejected on party-line votes. This could go on for a while. As of this writing, Republicans had defeated calls for the Senate to subpoena the White House and the State Department. They seemed likely to defeat a call for information from the Office of Management and Budget. Other requests from Democrats are expected later on.
An admonishment from the chief justice
Chief Justice John Roberts admonished both the House impeachment managers and Trump’s legal team after a feisty exchange, in which impeachment manager Jerry Nadler accused Republican senators of “voting for a coverup” and White House counsel Pat Cipollone said Nadler should be “embarrassed.”
“I think it is appropriate for me to admonish both the House managers and the President’s counsel in equal terms to remember that they are addressing the world’s greatest deliberative body,” Roberts said. “One reason it has earned that title is because its members avoid speaking in a manner and using language that is not conducive to civil discourse.”
The process argument
The Republican counterargument
largely rested on process
— the idea that the House should have waited to get the information through the courts rather than impeach Trump and ask the Senate to do more subpoenas.
Republican senators stick together, for now
Sen. Susan Collins, a Maine Republican who has said she’d like to hear from witnesses, rejected the argument in favor of subpoenas on a technicality. She’d rather wait, perhaps to consider it again.
“I will vote to table any attempts by either side to subpoena documents or witnesses before that stage in the trial,” she said in a statement. “While I need to hear the case argued and the questions answered, I anticipate that I would conclude that having additional information would be helpful. It is likely that I would support a motion to subpoena witnesses at that point in the trial just as I did in 1999. “
There was some acquiescing to Collins by Senate Majority Leader Mitch McConnell, giving a bit more time for opening statements and guaranteeing that the House evidence will be a part of the record. But on the key points, Republicans stuck together on Tuesday.
Collins was also the lone Republican to break ranks and vote with Democrats on one of the 11 amendments proposed by Senate Minority Leader Chuck Schumer. That amendment was defeated, like all the others.
Impeachment Watch podcast:
McConnell feels the heat from within the GOP. David Chalian talked to CNN Capitol Hill reporter Alex Rogers and Michael Zeldin, a legal analyst.
Here’s a valuable graphic
In the Senate chamber: note-takers, boredom, beef jerky
CNN’s Lauren Fox, Jeremy Herb and Michael Warren were inside the Senate chamber and offered their observations:
Many of the members have turned to writing notes as a way to keep busy during the trial. Sen. Mike Lee, a Republican from Utah who has worked closely with McConnell and the President on preparations for the trial, wrote at a furious pace. A constitutional lawyer, Lee seemed enthralled with the scene, scribbling notes and straining to ensure he could see all of the exhibits Schiff referenced. There were a few video clips that played where most of the chamber almost seemed confused at first about where the videos were coming from.
Republican Sen. Cory Gardner of Colorado, up for reelection this year, also scribbled down notes. Next to him, Republican Sen. Chuck Grassley of Iowa, a former chairman of the House Judiciary Committee, glanced over repeatedly, almost as if he were not quite sure what Gardner was jotting down so quickly.
McConnell, meanwhile, was stone-faced. The Kentucky Republican looked at Schiff, listening intently with his hands folded in his lap.
The Collins-Murkowski connection
It’s just their normal seating arrangement, but, interestingly, Republican Sens. Lisa Murkowski of Alaska and Collins — both moderates targeted by Democrats as potential swing votes on key procedural issues — are sitting next to each other during these proceedings.
Some appear bored, and fidget
Republican Sen. Martha McSally of Arizona had a blanket over her lap. Republican Sen. Dan Sullivan of Alaska let loose a big yawn. At one point, both Democratic Sen. Kirsten Gillibrand of New York and Republican Sen. Jim Risch of Idaho appeared to have their eyes closed, but Gillibrand opened hers abruptly and sat up straight in her chair.
Others looked like bored students in a particularly long lecture. Republican Sen. Tom Cotton of Arkansas absent-mindedly clicked his retractable pen for about a minute before Republican Sen. Joni Ernst of Iowa turned to look at him and he stopped. Democratic presidential candidate Sen. Amy Klobuchar of Minnesota was chewing a piece of gum. Republican Sen. Tim Scott of South Carolina scribbled on a note card and handed it to Republican Sen. Ben Sasse of Nebraska, who read it, leaned into Scott’s ear, and began whispering. Scott silently laughed at whatever Sasse told him.
During a break there were lots of conversations on the floor. Sasse offered beef jerky that’s stashed in his desk to other senators. Cotton walked over to the Democratic side of the floor and chatted with Schumer of New York, putting his arm around him at one point.
Ivanka Trump stays silent
The presidential adviser and daughter is in Davos, Switzerland, where she and her dad are representing the US at the World Economic Forum. CNN’s Jim Acosta asked her to comment on the impeachment.
She did not.
Earlier in the day, President Trump was asked if it’s better to be in Davos than in DC. “Well, we’re here meeting with world leaders. The biggest, most important people in the world, and we’re bringing back tremendous business to the United States … the other is just a hoax. It’s the witch hunt that’s been going on for years,” he said.
Lev Parnas is now in the record
CNN’s Marshall Cohen points out that Democrats managed to enter into the record information that came to light last week from Lev Parnas, the Soviet-born businessman who
worked with Rudy Giuliani
on the Ukraine pressure campaign.
Arguing that the Senate should subpoena the State Department, impeachment manager Val Demings pointed to a February 2019 text message where Giuliani told Republican lawyer Victoria Toensing that he was going to talk to Secretary of State Mike Pompeo about removing the US ambassador to Ukraine. (Trump later removed the diplomat, Marie Yovanovitch, from her post amid a flurry of public allegations from Giuliani and his allies in conservative media, who falsely accused Yovanovitch of being an anti-Trump partisan.)
House investigators got those text messages only last week, after Parnas
complied with a months-old subpoena
. He was indicted in October on campaign finance charges, and recently secured approval from a judge to share the documents.
How is a Senate trial different from a criminal trial?
A reader’s digest of their points:
— Defendants in criminal trials are entitled to a jury of 12 peers, and in federal cases the jury must reach a unanimous verdict. A Senate trial has 100 senators and requires a 2/3 supermajority, usually 67 senators. Plus, while regular jurors can be dismissed for breaking the rules of trial, there’s no way to enforce the oath senators took last week. (
Burden of proof — In a criminal trial, the prosecutor must prove guilt beyond a reasonable doubt. No such requirement in the Senate.
The rules — Criminal trials have detailed rules regarding evidence, witnesses and arguments. Senate trials do not. And the rules can be easily changed.
The judge — The Constitution requires the chief justice of the Supreme Court to preside over a presidential impeachment.
The punishment — Criminal punishment usually involves imprisonment or fines or both. The punishment for conviction in a Senate impeachment trial is removal from office and a prohibition on running for office in the future.
Breaking the law without committing a crime
I wrote this headline for a portion of the newsletter: “There was a crime, according to GAO.” Legal-eyed readers reached out to argue that you can break a law without it being a crime. Rather, it is a noncriminal violation of law.
Not a crime, a violation of law
The administration violated the Impoundment Control Act, but the law has no criminal penalties for people who break it.
This is important to the proceedings, since a lot of Republicans (and
Trump’s new lawyer Alan Dershowitz!
) argue that a crime, or criminal conduct, should be required for impeachment. The articles of impeachment do not mention the Government Accountability Office finding.
No federal crimes in 1789
“One weakness with argument that impeachable offense must be a violation of criminal law, too: at time Founders wrote Constitution, there were no federal crimes. It was not until 1790 that the Crimes Act created the first 23 separate federal crimes.”
There was, however, English common law
I ran that idea by Michael Zeldin, a CNN legal analyst, and he generally agreed, but added this about the Framers:
“What they did know was English common law. Under the Common Law there were articulated crimes. So when the Framers talked in terms of Bribery, Treason and Other High Crimes and Misdemeanors they were referring back to English Common Law. (As we have discussed too, high crimes and misdemeanors was not limited to criminal law violations. It was understood as a violation of the public trust by office holders.)”
What are we doing here?
The President has invited foreign powers to interfere in the US presidential election. Democrats impeached him for it. A Senate trial is happening now. It is a crossroads for the American system of government as the President tries to change what’s acceptable for US politicians. This newsletter will focus on this consequential moment in US history.