With several Democrats openly floating the possibility
they might vote to acquit President Trump, congressional Republicans
are planning an aggressive "Plan B" strategy in the event some
Republicans break off and demand additional witnesses in the president's
impeachment trial, Fox News has learned.
Senate Majority Leader Mitch McConnell, R-Ky., privately said early
Tuesday that he wasn't sure there were enough Republican votes to
block more witnesses, given that some moderates in the GOP's 53-47
Senate majority were wavering. Any witness resolution would likely
require four Republican defections in the Senate, because in the event
of a 50-50 tie, Chief Justice of the United States John Roberts is
highly likely to abstain rather than assert his debatable power to cast a tiebreaking vote.
Late
Tuesday night, a Senate leadership source told Fox News that
Republicans were specifically assessing the viability of two alternative
options.
One plan is to amend any resolution calling for a particular witness to also include a package of witnesses that
assuredly wouldn't win enough support in the Senate. For example, if
the Democrats seek to call former National Security Advisor John Bolton, Republicans might subpoena Hunter Biden over his lucrative board position in Ukraine, and Rep. Adam Schiff, D-Calif., over his inconsistent statements concerning his panel's contacts with the whistleblower at the center of the impeachment probe.
"After listening to the Dems’ 20+ hours of argument and the rebuttal arguments from @realDonaldTrump,
I’ve got lots of questions for the Dems," tweeted Missouri GOP Sen.
Josh Hawley on Tuesday. "Like this one: Why did Schiff lie about his
contact with the 'whistleblower'? More to come!"
The "package
deal" proposal could afford moderate Republicans the political cover of
supporting more witnesses in theory, while ultimately rejecting a
witness package they deem flawed. Even if a witness package passed, the
resolution could be written such that the witness phase of the trial
ends immediately if a key witness, such as Hunter Biden, defies
his subpoena.
The Federalist senior editor and Fox News contributor Mollie Hemingway observed
that in the House impeachment proceedings, Democrats allowed themselves
to call significantly more witnesses than they afforded to their
Republican colleagues -- raising the possibility Republicans could
reasonably insist on an equally favorable "ratio" in the Senate trial
when putting together a prospective package of witnesses.
A lopsided ratio in favor of the GOP also could lead some Democrats to oppose a witness package.
Another
option, the congressional leadership source told Fox News, is for
the White House to assert executive privilege to block witnesses,
including Bolton. The administration could head to court to obtain an
emergency injunction against his testimony, citing national security
concerns. Trump has said he is concerned about his former top advisor
potentially spilling national security secrets, and the legal principle
of executive privilege has long shielded executive branch deliberations
from disclosure.
That might end up in a court battle, and could
prove dicey if Bolton opts to go rogue and defy the White House's
assertion of privilege as it makes its way through the courts.
Meanwhile, Politico reported on Tuesday
that Democrats were apparently divided over whether to remove Trump
from office on the charges of obstruction of Congress and abuse of power
-- neither of which is a defined federal crime. Moderate Democratic
Sens. Joe Manchin, Doug Jones, and Kyrsten Sinema were all weighing
votes to acquit Trump on at least one of the two articles of
impeachment, the outlet reported.
“I know it’s hard to believe
that. But I really am [undecided]. But I have not made a final decision.
Every day, I hear something, I think ‘this is compelling, that’s
compelling,’” Manchin said. “Everyone’s struggling a little bit.”
That news came shortly after a disputed Los Angeles Times report that California Sen. Dianne Feinstein was considering a vote to acquit the president. Feinstein later said she was "misunderstood."
GOP senators were similarly all over the map on Tuesday as Trump’s defense team called Bolton’s new manuscript “inadmissible” and warned against opening the door to new wild-card information in the ongoing trial.
Trump
told Bolton in August, according to an excerpt of Bolton's forthcoming
book reviewed by The New York Times Times, "that he wanted to continue
freezing $391 million in security assistance to Ukraine until officials
there helped with investigations into Democrats including the Bidens."
Republicans and liberal law professor Alan Dershowitz have countered that, even if true, the allegations do not rise to the level of an impeachable offense.
The White House has also argued that Bolton may have leaked the manuscript to improve sales of his book, which went live for pre-orders on Amazon just hours after the Times report broke.
"Why
didn’t John Bolton complain about this “nonsense” a long time ago, when
he was very publicly terminated," Trump tweeted late Tuesday. "He said,
not that it matters, NOTHING!"
And, Republicans have reiterated, it would be legitimate for Trump to probe the Bidens' possible corruption for public policy reasons, given that Joe Biden openly boasted about successfully removing the Ukrainian prosecutor investigating the company where his son Hunter obtained a lucrative board position
with no relevant experience. Biden was overseeing Ukraine policy when
his son got the job at the Ukrainian company, which raised red flags at the time in the Obama administration.
Nevertheless,
several Republicans have indicated they would be interested in hearing
what Bolton has to say, at least in some capacity, and they left the
door open on Hunter Biden.
Louisiana GOP Sen. Bill Cassidy, for his part, raised questions even as he denied widespread reports
saying that he wanted to call more witnesses. Cassidy insisted that he
wanted to wait until the end of the written question period of the trial
to decide on witnesses.
That less-than-strenuous denial led Sean
Davis, the co-founder of The Federalist, to argue that Cassidy was
issuing a "Romney-esque non-denial," especially for a Republican in a
deep-red, pro-Trump state.
Meanwhile, Sen. James Lankford,
R-Okla., called for Bolton’s unpublished manuscript to be made available
for senators to read in a classified Sensitive Compartmented
Information Facility (SCIF) to understand what Bolton was alleging. His
proposal got an ally in influential Sen. Lindsey Graham, R-S.C., who
called the idea a “reasonable solution.”
Some senators suggested
that Bolton just spill the beans in a news conference on the sidelines
of the impeachment trial -- a proposal that could lead to legal
questions concerning both executive privilege and classified
information.
Bolton's manuscript is currently in a
"pre-publication review" at the National Security Council, which
functions as the White House's national security forum. Such a review is
standard for any former government official who held security
clearances and publicly writes or speaks publicly about their official
work.
The review focuses on ferreting out any classified or
sensitive material in advance of publication and could take from days to
months.
“The
Wall Street Journal has called for John to just come forward -- just
tell the public what you know,” Sen. Ron Johnson, R-Wis., said. “I think
that actually [would] be a smart thing. I’d encourage John to do that
without involving the trial.”
Separately, Harvard Law School
Professor Alan Dershowitz, who delivered a spirited
constitutional defense of the president on Monday night in the
impeachment trial, took aim at Elizabeth Warren after she said she
couldn't follow Dershowitz's argument.
"He is a criminal law
professor who stood in the well of the Senate and talked about how law
never inquires into intent and that we should not be using the
president's intent as part of understanding impeachment," Warren said
Monday. "Criminal law is all about intent. Mens rea is the heart of
criminal law. That's the very basis of it. So it makes his whole
presentation just nonsensical. I truly could not follow it."
Dershowitz
replied on Twitter that Warren, who formerly taught at Harvard Law
School, "doesn't understand the law" and had "willfully
mischaracterized" his argument.
“If Warren knew anything about
criminal law she would understand the distinction between motives –
which are not elements of crime—and intent, which is. It’s the
responsibility of presidential candidates to have a better understanding
of the law,” Dershowitz said.
On Monday, flatly turned
toward House impeachment managers and declared they had picked
"dangerous" and "wrong" charges against the president -- noting that
neither "abuse of power" nor "obstruction of Congress" was remotely
close to an impeachable offense as the framers had intended.
In a
dramatic primetime moment, the liberal constitutional law
scholar reiterated that although he voted for Hillary Clinton, he could
not find constitutional justification for the impeachment of a president
for non-criminal conduct, or conduct that was not at least "akin" to
defined criminal conduct.
"I'm
sorry, House managers, you just picked the wrong criteria. You picked
the most dangerous possible criteria to serve as a precedent for how we
supervise and oversee future presidents," Dershowitz told the House
Democrats, including head House impeachment manager Rep. Adam Schiff,
D-Calif.
He said that "all future presidents who serve with
opposing legislative majorities" now face the "realistic threat" of
enduring "vague charges of abuse or obstruction," and added that a "long
list" of presidents have previously been accused of "abuse of power" in
various contexts without being formally impeached.
The list
included George Washington, who refused to turn over documents related
to the Jay Treaty; John Adams, who signed and enforced the so-called
"Alien and Sedition Acts"; Thomas Jefferson, who flat-out purchased
Louisiana without any kind of congressional authorization whatosever;
John Tyler, who notoriously used and abused the veto power; James Polk,
who allegedly disregarded the Constitution and usurped the role of
Congress; and Abraham Lincoln, who suspended habeas corpus during the
Civil War. Ronald Reagan, George H.W. Bush, and others would also
probably face impeachment using the Democrats' rules, Dershowitz said.
"Abuse
of power," he argued, has been a "promiscuously deployed" and "vague"
term throughout history. It should remain a merely "political weapon"
fit for "campaign rhetoric," Dershowitz said, as it has no standard
definition nor meaningful constitutional relevance.
Dershowitz
then said he was "nonpartisan" in his application of the Constitution,
and would make the same arguments against such an "unconstitutional
impeachment" if Hillary Clinton were on trial -- passing what he called
the "shoe on the other foot" test.
"Purely non-criminal conduct
such as abuse of power and obstruction of Congress are outside the range
of impeachable offenses," Dershowitz said.
Trump's lawyers
wrapped up their opening arguments early on Tuesday. Starting on
Wednesday, Democrats and Republicans will alternate in posing their
questions to the House Democratic impeachment managers and Trump's legal
team. Questions will be in writing, submitted to Roberts and read
aloud. Senators do not pose the questions themselves. They must sign the
questions, which may come from a group of senators or an individual
senator.
Fox News is told to expect between 10 and 12 questions
per side before a recess. There is no time clock as to how long counsel
for both sides has to respond, but Roberts said Tuesday that based on
the 1999 impeachment trial precedent, both sides should try to limit
their responses to five minutes.
At the same time, Roberts noted
according to the Congressional Record from 1999, everyone laughed at
that suggestion. Senators laughed on the floor again Tuesday when
Roberts hinted at the unofficial time restriction. There can be no
challenge of given answers by counsel for either side.
After
written questions are over, the Senate will consider whether to hear
additional documents and evidence. A final vote on the two articles of
impeachment will follow, with a highly improbable two-thirds vote needed
to convict and remove the president.
If, as expected, the Senate does not meet that threshold, Trump will have been formally acquitted.
Fox News' Marisa Schultz, Chad Pergram, and Fox Business' Hillary Vaughn, contributed to this report.