Senate Democrats are preparing for round two in the fight over impeachment trial witnesses.
Now that Senate Majority Leader Mitch McConnell (R-Ky.) has won round one, saying he has the 51 votes needed to start President Trump’s impeachment trial without an agreement on potential testimony, Democrats are vowing they will force votes at multiple points during the trial.
The strategy sets up key junctures to watch during the likely weeks-long trial that, Democrats hope, keeps pressure on a handful of GOP senators they will need to win any of the looming procedural battles.
Senate Minority Leader Charles Schumer (D-N.Y.) is seeking to shift the focus from McConnell — who has said he does not believe either Trump’s legal team or House impeachment managers should call witnesses — to rank-and-file members by noting that “every senator will have to vote” on whether to call witnesses or compel documents.
“Those votes at the beginning of the trial will not be the last votes on witnesses and documents. Make no mistake: We will continue to revisit the issue, because it’s so important to our constitutional prerogative to hold a fair impeachment trial,” Schumer said Thursday in a floor speech.
Republicans say their decision to start the trial without a bipartisan agreement on witnesses aligns with former President Clinton’s impeachment in 1999, when a resolution at the outset of the trial dealt only with setting up the process for the proceeding. A second resolution, passed mid-trial, subpoenaed three witnesses to testify in closed-door depositions.
“The 1999 precedent does not guarantee witnesses or foreclose witnesses. Let me say that again: It neither guarantees witnesses nor forecloses witnesses. It leaves those determinations until later in the trial, where they belong,” McConnell said from the Senate floor. “I fully expect the parties will raise questions of witnesses at the appropriate time.”
Democrats are eyeing two points during the trial when they expect they will be able to force “repeated” votes on witnesses and documents. The GOP rules resolution that senators vote on at the outset will be subject to amendments, meaning Democrats can force votes to try to shoehorn in language on witnesses in an attempt to get a deal on the front end.
But those votes are likely to fall short since key Republican swing votes, including Sens. Susan Collins (Maine), Lisa Murkowski (Alaska) and Mitt Romney (Utah), have all endorsed McConnell’s decision of forgoing an initial decision on specific witnesses.
Democrats will nonetheless be able to force votes on potential witnesses like former national security adviser John Bolton, as well as documents, toward the middle of the trial, following opening arguments from both sides and questions from senators.
“If there’s no witnesses and documents, we will have the ability, at the beginning of the trial and as we go through it, to get votes. And we’re going to get them,” Schumer told reporters during a weekly leadership press conference.
That sets up a potential turning point for Democrats in the middle of the trial, with lawmakers signaling cautious optimism that they will be able to get GOP support for some of their requests.
Sen. Tim Kaine (D-Va.) predicted that there would be Republican support and warned that the trial won’t qualify as “impartial justice” if individuals aren’t called to testify.
“We do get to make motions. The motions would be, ‘Hey, subpoena John Bolton.’ And just because people might vote to, on the Republican side, to start without witnesses and documents doesn’t mean that they’re going to vote against a request to subpoena,” Kaine said.
He noted that Democrats were planning to offer multiple motions on specific witnesses, instead of one motion that covered their request writ large. While Republicans have the votes to start the trial without a deal, Kaine said, there have also been “productive discussions” about trying to call witnesses.
Sen. Angus King (I-Maine), who caucuses with the Democrats, predicted during an MSNBC interview that as many as a dozen Republican senators could support calling witnesses.
“I think when the moment comes and there will be a motion to bring in witnesses, to depose them anyway, to get them on the record, I can’t believe there’s not going to be not only four or five, I think there will probably be a dozen Republicans who will vote for that motion,” he said.
Democrats believe a steady stream of reports released since the House passed its two articles of impeachment bolster the need for testimony from individuals who did not testify in the House.
In one email, reported by Just Security earlier this month, Michael Duffey, the associate director of national security at the Office of Management and Budget, told the acting Pentagon comptroller there was “clear direction from POTUS to hold” the Ukraine aid at the center of the impeachment effort.
Potential swing votes have left the door open to supporting witnesses down the road, helping fuel Democratic hopes that even though Trump’s acquittal is all but guaranteed they could still win some key procedural fights. Democrats would need four Republican senators to successfully call a witness.
Romney told reporters this week that he wants to hear from Bolton, though he stopped short of drawing hard lines about how the former administration official is called.
“I would like to be able to hear from John Bolton. What the process is to make that happen, I don’t have an answer for you,” he added.
In addition to Bolton and Duffey, Democrats want to subpoena acting White House chief of staff Mick Mulvaney and Mulvaney’s senior adviser Robert Blair. They also want the administration to turn over documents related to the delayed Ukraine aid.
Collins, who supported closed-door depositions as part of the Clinton trial, has said she is “open” to witnesses as part of Trump’s trial but reiterated this week that a decision should wait until after the initial phase of the proceedings.
Murkowski, meanwhile, said on Thursday that senators should “have an opportunity for us to be able to decide … whether or not we need more information. And whether or not we need to hear from Mr. Bolton or others.”
Pressed if she was curious what Bolton, specifically, might know, she quipped: “Isn’t everybody?”