Senate Democrats had a surprising takeaway on Saturday: President Donald Trump's lawyers are making their argument for them.
In their fight to win new witnesses and evidence, Democrats latched onto a line from White House deputy counsel Patrick Philbin — that “cross-examination in our legal system is regarded as the greatest legal engine ever invented for the discovery of truth.” Given the stiff opposition from the Trump administration and Republicans to hearing from witnesses with direct knowledge of the president's actions in the Ukraine saga, Democrats almost couldn’t stand the irony.
“I was absolutely stunned that they would consistently say that cross-examination is the greatest engine for truth and we’re playing a shell game,” said Sen. Doug Jones (D-Ala.), referring to counsel Pat Cipollone’s remarks to end Saturday’s session. “It is the president that is playing that shell game and denying cross examination.”
Jones, who described himself as “pretty animated” when he heard the argument from the president’s lawyers, faces the toughest Senate reelection bid in the country. But it seemed easy for him to come to a conclusion about the president’s opening arguments: “I deserve to hear more about the facts and not just the partisan rhetoric.”
Sen. Joe Manchin (D-W.Va.), one of the few Democrats who is not a guaranteed vote to convict the president, was more insistent on securing witnesses than ever.
“They were very clear in saying there is not one witness we’ve heard from on the prosecution’s case that they’ve made [that] has had direct contact with the president,” Manchin said. “And I’ve been saying all along: How do you have a trial without hearing from witnesses?”
The skeptical reaction from some of the Democrats most likely to be open to the Trump team’s arguments highlight the partisan divide that has consumed the Senate impeachment trial from the start.
Senate Democrats’ hopes have dimmed in recent days that they will ultimately win the vote on whether to open the door on witnesses, particularly given recent noncommittal comments from key Republican senators on the issue. But on Saturday, Senate Minority Leader Chuck Schumer (D-N.Y.) argued the White House’s line of persuasion had made his quest for witnesses and document “even stronger.”
Democrats need at four Republican votes to call witnesses, and there are few GOP senators who seem even remotely willing to consider voting for witnesses at this point. Only Sens. Mitt Romney (R-Utah) and Susan Collins (R-Maine) have said they are likely to support it.
Sen. Joni Ernst (R-Iowa) said in an interview Saturday she’s “leaning” against voting for witnesses and Sen. Cory Gardner (R-Colo.) was entirely non-committal: “We’re in the middle of the hearing.”
The Trump lawyers were “low key, specific and I thought they were persuasive,” said Sen. Lamar Alexander (R-Tenn.), who is undecided on witnesses and rested his eyes for part of Philbin’s presentation. “They spoke very well.”
The White House lawyers argued against several votes on witnesses and documents earlier this week, reasoning that the issue will be litigated later. The trial blueprint approved by the Senate provides two hours for each side to make their case on whether to call witnesses. And barring a stunning reversal from Senate Majority Leader Mitch McConnell (R-Ky.) and the White House, Cipollone and Philbin appear on course to lobby against hearing new evidence.
But what struck those who support calling witnesses was the case made by Trump lawyers that House impeachment managers had failed to bring forward testimony from people who had directly talked to Trump about the withholding of aid to Ukraine and requests for investigations into Biden.
That’s precisely because the White House has barred the participation of people like acting White House chief of staff Mick Mulvaney and former national security adviser John Bolton from participating in the impeachment inquiry.
“I found it particularly galling and rich,” said Sen. Martin Heinrich (D-N.M.). “This is the place where due process is supposed to happen and yet they’ve completely locked out due process.”
“It just underscores the importance of hearing from those witnesses who can give us direct information but didn't testify in the House,” said Sen. Ben Cardin (D-Md.).
Overall, most Democrats strongly criticized the White House lawyers’ presentation, a mirror image of Senate Republicans’ attacks on the House managers’ presentations earlier this week. But they found some things persuasive. Manchin said they generally did a “good job,” for example, and Jones said he agreed with some of the process complaints about how the House inquiry was run.
Senate Minority Whip Dick Durbin (D-Ill.) also said that after the lengthy arguments from House managers, Cipollone’s frequent references to keeping the White House defense relatively short was a smart tactic: "It doesn't hurt. From that point of view, you have a more positive feeling from the presentation if you feel like you're going to be able to go home."
But overwhelmingly Democrats found it unpersuasive and at times laughable, particularly Cipollone’s contention that they would prove that the president had “done nothing wrong.”
“I know this from private conversations with colleagues: I don't think there's a person in that chamber, or very few of us, that believe this president did nothing wrong,” said Sen. Cory Booker (D-N.J.).
Darren Samuelsohn contributed to this report.