Live coverage: Senators query impeachment managers, Trump defense

Senators are set to start a marathon question and answer session on Wednesday as President Trump’s impeachment trial goes into the next phase. 

The Senate convened at 1 p.m., and is expected to use eight hours, not including breaks, to ask and answer questions.

Because senators are not allowed to talk, their questions are being submitted in writing to Supreme Court Chief Justice John Roberts, who will read them out loud and identify who they are from. 

Under a deal struck by Senate Majority Leader Mitch McConnell (R-Ky.) and Senate Minority Leader Charles Schumer (D-N.Y.), questions will alternate from Republicans and Democrats.

Roberts has requested that answers be limited to five minutes. 

The Hill will be providing live coverage of the questions and answers throughout the afternoon and evening.

— Jordain Carney

Sekulow on ceding power to Justice Roberts: “We are not willing to do that”

11:10 p.m.

Trump’s defense team shot down an idea floated by House managers to place sole authority over witness testimony and evidence in the hands of Chief Justice John Roberts.

Earlier in the evening, lead House manager Rep. Adam Schiff (D-Calif.) challenged Trump’s lawyers to agree to be bound by Roberts’s rulings.

“We will not seek to litigate an adverse ruling. We will not seek to appeal an adverse ruling,” Schiff said. “Will the president’s counsel do the same?”

As the evening came to a close, Trump’s lawyers delivered their response.

“I’ll say it very clearly: We are not willing to do that,” said Jay Sekulow, Trump’s personal attorney.

The Constitution endows the Senate with the “sole” power to try impeachments, and Senate rules say a majority of senators can overrule the presiding officer on evidentiary rulings. 

Sekulow said Trump’s team would not surrender its “constitutional prerogatives,” as Schiff’s proposal would require.

“With no disrespect at all to the chief justice,” Sekulow said, “that’s not the constitutional design.”

– John Kruzel

Blunt earns laughter for late-night slip up 

10:49 p.m.

“It was a terrifying moment,” Blunt added, earning laughter from his colleagues. 

– Jordain Carney

Question-and-answer session to wrap around 11 p.m

10:15 p.m.

White House attorney: Information from foreign government on opponents is OK if it’s ‘credible’

9:55 p.m.

House managers, Trump team clash over Justice Roberts’ role in witness fight

9:24 p.m.

The contrasting views held by House impeachment managers and President Trump’s defense team on Chief Justice John Roberts’s role in the fight over witnesses came into sharp focus late Wednesday.

The two sides clashed over whether Roberts is authorized to rule on executive privilege, and if the Senate always has the power to overrule Roberts with a simple majority, or only under certain circumstances. 

The Constitution appoints the chief justice to preside over presidential impeachment trials in the Senate. The rules that govern the arrangement between the Senate and Roberts say the presiding officer “may rule” on all questions of evidence.

However, the rules make clear that a single senator can appeal an evidentiary ruling, which would trigger a vote in the Senate, where a simple majority would overturn Roberts.

Patrick Philbin, deputy counsel to the president said that an assertion by Trump of executive privilege, the legal doctrine that shields certain presidential communications, is beyond Roberts’s power to rule.

“On the subpoenas at the front end, that’s not going to be something that’s determined, with all respect, sir, by the chief justice,” Philbin said, turning to Roberts. “That’s something that would have to be sorted out in the courts or by negotiation with the executive branch.” 

Lead House manager Rep. Adam Schiff (D-Calif.) pushed back on that assertion. 

“Is the chief justice empowered under the senate rules to adjudicate questions of witnesses and privilege? The answer is yes,” Schiff said. “Can the chief justice make those determinations quickly? The answer is yes.”

While the Senate rules say a majority of senators can overrule the presiding officer on evidentiary rulings, Schiff suggested that Senate power also yields to that authority in some cases. He added that certain challenges by the Senate would require a supermajority to override Roberts. 

“Is the senate empowered to overturn the chief justice? Under certain circumstances,” he said. “Is the vote 50 or is the vote two-thirds? That would be something that we would have to discuss with the parliamentarian and chief justice.” 

The trial debate over Roberts’s relative power in the witness fight mirrors a similar debate being waged by legal scholars in opinion pages and legal blogs.

Experts say prior Supreme Court decisions would offer scant guidance on resolving an assertion by Trump of executive privilege, and that, procedurally speaking, the Trump impeachment trial has entered uncharted waters.

– John Kruzel

Romney asks White House lawyers when Trump first ordered hold on Ukraine aid

8:53 p.m.

Sen. Mitt Romney (R-Utah), who has led the push in the GOP conference for calling additional witnesses, asked White House lawyers on “what specific date did President Trump first order the hold on security assistance to Ukraine and did he explain the reason at the time.”

White House deputy counsel Patrick Philbin rose to answer, thanking the Utah senator for the question.

Philbin said there wasn’t evidence in the House record of a specific date for when the hold was first ordered, but noted there was testimony that officials at the Office of Management and Budget were aware of the hold by July 3 of last year.

Philbin also noted “there is evidence in the record even earlier than that time.”

He pointed to a June 24 email that had been publicly released in response to a Freedom of Information Act request from the Department of Defense’s chief of staff to a subordinate discussing “follow-up from a meeting with [the] president of the United States concerning a question that had been asked about Ukraine assistance.”

Philbin asserted that Trump wanted to know what Ukrainian assistance would be used for, whether it would go to U.S. firms and what other NATO members spent to support Ukraine.

— Alexander Bolton

Schiff challenges Sekulow over demand he testify

8:28 p.m.

House impeachment manager Adam Schiff (D-Calif.) addressed Trump attorney Jay Sekulow’s suggestion that he should be called to testify, arguing that the president’s lawyers were engaging in “distraction.”

“So, Mr. Sekulow would like me to testify. I’d like Mr. Sekulow to testify about his contacts with Mr. Parnas,” Schiff said, referring to an email produced by Giuliani associate Lev Parnas showing a contact between Sekulow and Parnas’s own attorney at the time.

Schiff said he’d also like to hear from White House counsel Pat Cipollone and from President Trump.

“I’d like to ask questions of the president and put him under oath. but we’re not here to indulge in fantasy or distraction,” Schiff said.  

Schiff went on to reiterate the need for the Senate to hear from former national security adviser John Bolton and other witnesses.

“We’re here to talk about people with pertinent and probative evidence,” Schiff said. He challenged assertions of Trump’s lawyers that calling witnesses would cause the trial to drag on for months. 

– Morgan Chalfant

Rand Paul blocked from asking whistleblower question

7:03 p.m.

Sen. Rand Paul’s (R-Ky.) attempt to ask about the whistleblower whose report helped spark the impeachment inquiry is running into a roadblock in the form of Chief Justice John Roberts.

A source confirmed that Roberts has indicated he would not read a question from Paul regarding the whistleblower at the center of the House impeachment inquiry. The question from Paul is expected to name the individual. Because Roberts is responsible for reading the questions, that would put him in the position of publicly outing the person on the Senate floor.

Paul indicated to reporters after a closed-door Republican dinner that he was not backing down from trying to ask his question.

“It’s still an ongoing process; it may happen tomorrow,” the libertarian-leaning senator told reporters as he headed back to the Senate chamber.

Conservatives have used a series of questions to try to shed new information on the whistleblower, but none of the questions so far have named the individual.

Sen. John Thune (R-S.D.), the No. 2 Republican senator, indicated that leadership had not been involved in rejecting questions, but that he did not expect the whistleblower to be named on the floor during the impeachment trial.

“I don’t think that happens, and I guess I would hope that it doesn’t,” he told reporters.

– Jordain Carney

Senate Democrats ask about applying GOP Hunter Biden criticism to overseas business dealings of Trump family

7:54 p.m.

A group of Senate Democrats asked the House impeachment managers whether they believe the standard the president’s counsel applied to the overseas business dealings of former Vice President Joe Biden’s son Hunter Biden could also be used to scrutinize those of Trump and his family members.

“The president’s counsel has argued that Hunter Biden’s involvement in Burisma created a conflict of interest for his father, Joe Biden. President Trump, the Trump Organization and his family — including those who serve in the White House — maintain significant business interests in foreign countries and benefit from foreign payments and investments,” the senators asked in part.

They specifically aimed their question at Ivanka Trump, Trump’s eldest daughter, and her husband Jared Kushner, both of whom serve in roles within the administration.

“By the standard the president’s counsel applied to Hunter Biden, should Mr. Kushner and Ms. Trump’s conflicts of interests with foreign interests also come under investigation?” the senators asked.

In response, Rep. Val Demings (D-Fla.) argued that any questions about children are distractions from the core issue at hand: the president’s conduct.

“The reason why we are here has nothing to do with anybody’s children. The reason why we are here is because the president of the United States, the 45th president used the power of his office, to try to shakedown … a foreign power to interfere into this year’s election,” Demings said.

“Let us stay focused: This doesn’t have anything to do with the president’s children or Biden’s children. This is about the president’s wrongdoing,” she concluded.

– Olivia Beavers

Dershowitz says other academics are influenced by politics after Nadler criticism

6:44 p.m.

Dershowitz defends flip since Clinton trial

6:30 p.m.

Alan Dershowitz, a member of President Trump’s legal team, went on defense after Sen. Joe Manchin (D-W.Va.) asked what had changed since the Clinton impeachment trial to flip his position on what qualifies as “high crimes and misdemeanors.”

“What happened since 1998 is that I studied more, did more research, read more documents and like any academic altered my views,” Dershowitz said.

Manchin is viewed as one of three Senate Democrats who could vote to acquit Trump.

Dershowitz argued during the impeachment of former President Clinton that a technical crime was not required to impeach, a claim for which he has faced scrutiny since joining Trump’s team and arguing that the president could not be impeached without committing a crime.  

Similar to his floor remarks, he’s explained he has since done research that has changed his mind on the issue.

– Jordain Carney

Trump tweets clip of Bolton as former aide features prominently in questions at Senate impeachment trial 

6:09 p.m.

President Trump on Wednesday tweeted a clip of John Bolton, then his national security adviser, giving an interview with Radio Free Europe/Radio Liberty Fox News last August describing the president’s calls with Ukraine’s leader as “warm and cordial.”

Bolton also said in the clip that the success of Ukraine, including its ability to maintain a free market economy free of corruption and secure the Donbas, were “high priorities” for the administration.

“GAME OVER!” Trump wrote in the tweet with the video.

 

GAME OVER! pic.twitter.com/yvMa6bPqfy

— Donald J. Trump (@realDonaldTrump) January 29, 2020

It was unclear if Trump was watching the proceedings but the tweet indicated that the Bolton issue was on his mind Wednesday evening. 

The New York Times report about Bolton’s account of his conversations with Trump regarding Ukraine was a considerable focus of the questioning portion of the Senate trial on Wednesday.

Bolton is said to have written in a draft of his forthcoming book that Trump told him last August that he wanted to continue to suspend security assistance to Ukraine until the country helps with investigations into Democrats. Trump has denied Bolton’s account as reported by the Times.

– Morgan Chalfant

House managers, Trump team spar over burden of proof

6 p.m.

House impeachment managers and President Trump’s defense team sparred over what standard the House managers must meet to effectively prove their case at Trump’s impeachment trial. 

Unlike a court proceeding, a Senate impeachment trial has no established standard, which is also known as a burden of proof.

“There is no established or uniform burden of proof,” Michael Gerhardt, a University of North Carolina law professor, told The Hill. “In the Senate, every senator decides for himself or herself what burden applies.”

Unsurprisingly, lawyers for Trump argued for a higher standard, while House managers argued for a relatively lower threshold.

Pat Philbin, a member of Trump’s legal team, said senators should borrow the standard that applies to criminal cases, which demands guilt “beyond a reasonable doubt.”

Both the “breathtaking importance” of a presidential impeachment and the Constitution’s use of phrases that hark to criminal law in describing impeachment illustrate the parallel, he said.

House manager Rep. Zoe Lofgren (D-Calif.) said the beyond-a-reasonable-doubt standard was unreasonable, and noted that the Nixon impeachment contemplated the relatively lower “clear and convincing” standard.

Ultimately, she said, regardless of whatever standard senators choose to apply, they should abide by their oath to carry out “impartial justice.”

– John Kruzel

Democrats invoke ‘missing witness rule,’ say Trump stifled harmful evidence 

5:45 p.m.

House managers told senators to infer that the White House blocked witness and document requests because they would have illuminated evidence that undercut Trump’s defense.

A group of Senate Democrats, led by Sen. Sheldon Whitehouse (D-R.I.), asked whether the “missing witness rule,” derived from the 1893 Supreme Court case Graves v. United States, should apply to Trump’s refusal to comply with requests. That rule says a party’s failure to produce a witness may be interpreted as adverse to them.

“You are not only permitted but absolutely should draw an adverse inference,” Rep. Adam Schiff (D-Calif.) said.

The question seemed calculated to give House managers a platform to recite a litany of evidence the White House refused to hand over, from the testimony of former national security adviser John Bolton to notes of former acting U.S. Ambassador to Ukraine William Taylor.

In response, Trump’s defense team said they had a valid legal rationale for not complying with Democratic requests. Deadlocks over things like privilege should not give rise to adverse inferences, they argued.

– John Kruzel

White House counsel unable to say if Trump raised Bidens prior to Biden entering presidential race

5:10 p.m.

The White House defense team could not say in response to a question from Republican senators whether President Trump had brought up the Bidens during conversations about corruption in Ukraine prior to former Vice President Joe Biden entering the Democratic presidential race last April.

Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) – who have both indicated they are open to hearing from additional witnesses – highlighted the president’s repeated comments that Ukraine has corruption issues and asked whether he had discussed Joe and Hunter Biden in that context during the first two years of his presidency.

Deputy White House counsel Patrick Philbin was unable to cite a specific instance where Trump indicated to other Cabinet officials or top Ukrainian officials that he was concerned about the Bidens contributing to corruption in Ukraine. He noted that conversations between Trump and his administration officials are not part of the record of the House impeachment inquiry.

Philbin said Trump discussed corruption with former Ukrainian President Petro Poroshenko in June 2017 and September 2017, but did not say whether he mentioned the Bidens in either case.

Instead, Philbin sought to justify Trump raising it with Ukrainian President Volodymyr Zelensky during a July 25, 2019. He argued anti-corruption was a key cog of Zelensky’s platform prior to his election, suggesting it was reasonable to raise concerns about the Bidens because of that.

The question seemed to strike at a key defense argument: That Trump discussed investigating the Bidens because he was motivated by corruption in Ukraine, not personal gain.

– Brett Samuels

Schiff picks apart White House lawyer remark on Bolton book

5:05 p.m.

House lead impeachment manager Adam Schiff (D-Calif.) used a portion of his time answering a question about pursuing additional witness and evidence to raise questions about a previous statement from White House lawyer Patrick Philbin.

Schiff said that Philbin’s answer – that no one outside the National Security Council reviewed John Bolton’s manuscript – did not answer whether “White House lawyers found out what’s in it.” 

Schiff seemed to suggest that Trump’s attorneys may have learned about the contents of the draft book at some point, even if they did not review the actual manuscript.

– Morgan Chalfant

White House lawyer says White House counsel’s office was ‘aware’ of Bolton manuscript, only NSC reviewed it 

4:35 p.m.

In response to a question from a Democrat, Patrick Philbin, a member of President Trump’s defense team, said the White House’s lawyers were made aware “at some point” that former security adviser John Bolton’s manuscript had been sent to the National Security Council (NSC) for prepublication security review.

Philbin reiterated that only officials working at NSC had reviewed the manuscript but didn’t say whether the president’s lawyers were briefed on it. The book was submitted to NSC for prepublication review at the end of December.

Philbin also called reports about the White House trying to block the publication of Bolton’s book “misinformed.”

Philbin read from a Jan. 23 letter from NSC to Bolton’s attorneys that said the book contained “significant amounts of classified information” and that the manuscript could not be published in its current form. Philbin emphasized the letter says that the NSC would work with Bolton to ensure he could “tell his story.” 

Under questioning from a GOP senator, Philbin later said that “no one” told the White House counsel’s office told the lawyers that the publication of the book would be problematic for Trump. 

– Morgan Chalfant

Senate session resumes

4:20 p.m.

The Senate has reconvened to continue its question and answer session in President Trump’s impeachment trial.

Harris invokes ‘Access Hollywood’ tape in question to House managers

– Brett Samuels

Senate takes 20 minute break 

Lofgren cites Republican witness testimony in arguing impeachment case doesn’t need criminal allegation

Trump lawyer says Senate risks weakening executive privilege

3:15 p.m.

Trump’s defense team said executive privilege could be “forever weakened” if the Senate were to decide such issues at the president’s impeachment trial, rather than leaving it to the courts to resolve.  

Patrick Philbin, deputy counsel to the president, responded to a question from Sen. John Cornyn (R-Texas) about the risks of senators setting a new precedent in Trump’s proceedings.

Some Senate Republicans have warned that efforts to subpoena testimony would likely draw an assertion of executive privilege by the president and trigger a protracted court battle. But other GOP senators, including Sen. Lindsey Graham (R-S.C.), have expressed concerns that it may fall to the Senate to decide privilege questions. 

Philbin warned that senators voting to compel testimony from former national security adviser John Bolton over Trump’s privilege assertion could harm national security and set a dangerous precedent.

Bolton possesses “all of the nations secrets” from his time in the Trump administration, and thus may be entitled to a valid claim of “absolute immunity” from testimony under law, Philbin argued.

He said forcing Bolton’s testimony would undermine executive privilege, the legal doctrine that shields certain presidential communications, in part to encourage candor between high-ranking executive branch officials.

A ruling by the Senate could see this privilege “forever weakened,” Philbin said, making it so that a president couldn’t have confidence that his communications “won’t end up on the front page of the Washington Post.” 

As support, Philbin cited the Supreme Court case involving President Nixon’s privilege claim over the Watergate tapes. 

While that case did recognize executive privilege, it saw the justices unanimously rule that a president cannot withhold important evidence from an ongoing criminal investigation, and did not address some of the novel separation of powers question raised in Trump’s impeachment.

– John Kruzel

Dershowitz: Quid pro quo not inherently illegal

2:20 p.m.

Sen. Ted Cruz (R-Texas) asked if it matters whether there was a quid pro quo in President Trump’s dealings with Ukraine, and if quid pro quos are frequently used in foreign policy. Democrats have argued Trump’s decision to delay Ukraine aid constituted a quid pro quo.

Trump defense team member Alan Dershowitz, an opinion contributor for The Hill, argued that a quid pro quo would only be illegal if the behavior involved was in itself illegal.

“The only thing that would make a quid pro quo unlawful is if the quo were in some way illegal,” Dershowitz said.

Dershowitz added that Democrats were trying to “psychoanalyze” Trump, but “everybody has mixed motives.”

“For it to be impeachable you would have to discern that he or she made a decision solely … on the corrupt motives. And it cannot be a corrupt motive if you have a mixed motive,” he continued. 

House Intelligence Committee Chairman Adam Schiff (D-Calif.) countered that Democrats had shown Trump acted with a “corrupt motive.” 

– Jordain Carney

Kennedy poses question on executive privilege to both sides

2:15 p.m.

Sen. John Kennedy (R-La.) became the first senator in the question and answer phase of the Senate trial to ask both sides to respond to a question when he asked about executive privilege.

The Republican senator asked: “Why did the House of Representatives not challenge President Trump’s claims of executive privilege and/or immunity during the House impeachment proceedings?”

Both sides split the five minute response time equally.

Rep. Hakeem Jeffries (D-N.Y.) offered the response for the House impeachment managers, arguing that Trump did not actually assert executive privilege, he asserted “blanket defiance” during their impeachment inquiry.

“There was no juris prudence that was cited to justify the notion of blanket defiance. There has been no case law to justice the doctrine of absolute immunity. In fact, every single court that has considered any presidential claim of absolute immunity such as the one asserted by the White House has rejected it out of hand,” Jeffries argued.

Patrick Philbin, a lawyer on the White House defense team, then argued that Jeffries’s claim is “simply incorrect.”

Philbin argued that the House subpoenas, because they were not authorized by a full House vote, were invalid.

Additionally, he argued that the White House “asserted the doctrine of absolute immunity for senior advisers to the president, which has been asserted by every president by the 1970s,” noting that Democrats chose not to challenge that in court.

– Olivia Beavers

Shaheen: Must impeachment articles allege a crime?

2:11 p.m.

Sen. Jeanne Shaheen (D-N.H.) asked House managers to address a central argument advanced by President Trump’s defense team: that impeachment articles must allege statutory crimes.

In a speech Monday, defense team lawyer Alan Dershowitz cited numerous legal authorities, some dating as far back as common law England, to argue that concepts like “abuse of power” that don’t appear in a criminal codebook cannot be the basis for impeachment. 

House manager Rep. Sylvia Garcia (D-Texas), responding to Shaheen’s question, rebutted this claim.

“The simple answer is that a president can be impeached without a statutory crime being committed,” she said. 

Garcia said a preponderance of scholarly research says a crime need not be alleged — and Dershowitz himself conceded his was a minority view among legal scholars.

The Framers intended impeachment to encompass a “full spectrum” of presidential misconduct, Garcia said, adding that the Constitution’s reference to high crimes and misdemeanors applied broadly to injuries done to society by public officeholders. 

Garcia said this principle was recognized in the impeachments of Presidents Nixon and Clinton.

– John Kruzel

Markey fact-checks Trump’s claim that House Dems never sought Bolton testimony  

1:55 p.m.

Sen. Ed Markey (D-Mass.) asked House managers to fact-check President Trump’s claim that House Democrats never sought testimony from former national security adviser John Bolton during the impeachment’s investigative phase.

Rep. Adam Schiff (D-Calif.), the lead House manager, said impeachment investigators did in fact ask Bolton to testify and were rebuffed. Schiff’s account is backed up by contemporaneous reports. 

Congressional investigators sought testimony from Bolton and his deputy Charles Kupperman, the latter of whom sued, asking a court whether he should abide by a congressional subpoena or White House guidance not to comply, Schiff said.

Schiff said that Bolton’s attorney, who also represents Kupperman, said, “You serve us with a subpoena [for Bolton] and we’ll sue you too.”

Schiff noted an inconsistency in the administration’s legal position on the issue of whether the courts are the proper forum to determine the enforceability of witness subpoenas.

Trump and his Republican allies have criticized House Democrats for not pressing their case for Bolton’s testimony in the courts.

But Schiff noted that the administration’s legal position in a case over access to former White House counsel Don McGahn’s testimony is that courts lack the power to referee subpoena fights between Congress and the White House.

– John Kruzel

Managers play clips of Trump’s defense while arguing for Bolton testimony

1:45 p.m. 

House Democratic impeachment managers played video of Trump’s lawyers speaking earlier in the trial in order to make an argument for the need to call former national security adviser John Bolton as a witness.

In response to a question from Senate Democrats about calling witnesses, House Intelligence Committee Chairman Adam Schiff (D-Calif.) — the lead impeachment manager — urged senators not to wait for the publication of Bolton’s book in order to hear what he has to say about the Ukraine affair if they have any question about Trump’s motive in asking Kyiv for investigations. 

“There’s no way to have a fair trial without witnesses,” Schiff said. 

“If you have any question at all, you need to hear from his former national security adviser,” Schiff continued. “Don’t wait for the book.”

Schiff then played video of White House counsel Pat Cipollone arguing on the Senate floor that Democrats should have given the senators all of the “facts” in the case.   

Schiff also played clips of deputy counsel Michael Purpura arguing there was no firsthand information provided in the case that supported Democrats’ claim Trump tied the investigations to security aid to Ukraine.

He did so to point out that Bolton could provide that information, while maintaining that the managers collected sufficient evidence to show Trump acted with corrupt motive.

White House lawyer Patrick Philbin was then asked to respond. He noted that the House did not subpoena Bolton — the lower chamber asked him to testify but he refused on instructions from the White House — and insisted that calling witnesses would set a bad precedent.

“And to insist now that this body will become the investigative body, that this body will have to do all the discovery, and that this institution will be effectively paralyzed for months on end because it has to sit as a court of impeachment … that should not be the precedent that is set here,” Philbin said. 

– Morgan Chalfant