Lindsey Graham supports scheme to review Bolton manuscript in secret, prevent witnesses at trial

Posted on by Mark Sumner

On Monday, Republican Sen. James Lankford of Oklahoma offered nervous Republicans an exit ramp from the dilemma posed by former national security adviser John Bolton. Rather than have Bolton appear as a witness in Donald Trump’s impeachment trial, Republicans would instead have a chance to look at the manuscript of Bolton’s upcoming book, which claims that Bolton has knowledge as a firsthand witness to Trump’s alleged actions, in secret, and then determine how to proceed.

On Tuesday, Lindsey Graham signed on to this scheme, calling for the manuscript to be made available in ”a classified setting.” Not only is this an obvious ploy to prevent Bolton from ever answering questions in front of Mitch McConnell’s personally controlled camera; it also means that Republicans, after a trial in which they have constantly accused Democrats of changing the rules to gather evidence in “secret,” are genuinely looking to change the rules … so they can examine evidence. In secret.

Bolton has already volunteered to appear before the Senate if subpoenaed, and over the weekend The New York Times revealed that Bolton’s upcoming book details a conversation in which Donald Trump explicitly connects military assistance for Ukraine to extorting an investigation by that country into Joe Biden. Keeping that information out of the Senate trial has become a growing challenge, as polls show swelling support for the testimony of Bolton and other potential witnesses.

The idea of a secret review of the manuscript offers Republicans several attractive options. First, they can emerge from the classified setting to declare that there’s no there there, no matter what’s actually contained in the text. Second, they can condemn Bolton’s text as a money grab from someone whom Fox News is now repositioning from a longtime Republican hardliner to a “deep state agent” who is part of a conspiracy featuring former FBI Director James Comey. Finally, Bolton’s manuscript can be cherry-picked for both complimentary statements about Trump and derogatory comments about Democrats.

If this scheme goes forward, expect Graham to simultaneously claim that Bolton’s manuscript is a smear against Trump and that it says bad, bad things about Nancy Pelosi/Hillary Clinton/Barack Obama. But most of all, expect Graham and other Republicans to claim that, after reviewing the manuscript, they find no reason for Bolton to answer any more questions. Especially when Trump is going to fight Bolton’s appearance.

Then Republicans can demand that Joe Biden appear. After all, they’ll say, they heard from Bolton.

Poppycock, pettifogging, and foul calumny: Trump’s team tries it all in Senate trial

Posted on by Mark Sumner

Monday saw Trump’s defense team roll out the big guns. Not Alan Dershowitz’s universally panned effort to apply legal-ish terminology to an argument that Fifth Avenue could fill up with bodies, and Donald Trump still wouldn’t be subject to impeachment. Not even the multiparty pile-up effort to use the Senate floor as a proxy for what Trump tried to extort from Ukraine, by delivering a prime-time smear of Joe Biden. No. The really big guns on Team Trump were reserved for denial, as Pat Cipollone, Jay Sekulow, and crew plunged madly on, ignoring the fact that their case was thoroughly sunk by weekend revelations.

Not that there was ever a case to begin with, since the evidence of Trump’s actions in Ukraine was overwhelming and public. It might be tempting to feel some pity for a legal team charged with defending Trump against the idea that he was trying to involve a foreign government in the 2020 election, when he has—more than once—appeared before cameras to request exactly that, and expanded the scope of his crimes by dragging China into the mix. If that weren’t bad enough, White House chief of staff Mick Mulvaney stepped in front of cameras to declare that, yep, it was true, every word of it, so … “Get over it.” Against that backdrop, pitiful is the best that can be achieved.

Still, Team Trump worked hard on Monday to make pitiful seem like a high-water mark they were not even interested in reaching. Across the day, they took a tripartite approach: denying Trump did anything wrong, smearing Joe Biden, and declaring that abuse of power is not impeachable in roughly equal—and equally bad—portions.

The day started out in denial territory, with the case continuing from the positions Trump’s core group of attorneys had held on Saturday. Resting on the certainty that Republicans would never ask for a fact witness to appear, Cipollone and company continued to tout the idea that the case meticulously assembled by the House managers was lacking the critical connections that would show Trump’s hands on the wheel. As it has from the time of the House hearings, this case boiled down to the fact that Trump had never stood on top of the Resolute Desk to deliver a Lex Luthor-style monologue, explaining every step of his actions complete with a diagram of connections. Short of this, said Trump’s team, there can’t really be a case. Also, Trump said, “No quid pro quo,” while explaining that someone would have to give him that to get this. So, all good.

But every word of that argument on Monday required that Trump’s attorneys ignore the elephantine Yosemite Sam in the room. With not only the revelation that John Bolton was willing to testify, but also his leaked manuscript providing a very good indication that any testimony would definitely not exonerate Trump, Republicans on both Trump’s legal team and the Senate floor—which is really the same thing—had to spend the morning operating with fingers firmly pressed in their ears. Meanwhile, Fox News began a concerted effort to explain that John Bolton was not really a Republican, had never been a Republican, and was really a deep-state operative in bed with (quick spin of the random Trump Enemy dial) … James Comey.

The middle chunk of Monday was devoted to using the Senate to achieve what Rudy Giuliani and Donald Trump, and all Dmytro Firtash’s men, could not accomplish in Ukraine: a public smear of Joe Biden. The primary tactic for accomplishing this was simple enough: utterly flipping the facts on their ear. Over the course of the day, Trump’s team argued that Biden had pushed to eliminate a prosecutor who was investigating the company where his son worked. Which was and is 100% a lie. They built on that lie with the lie that Biden’s actions were somehow beneficial to his son. A good chunk of this was delivered by attorney Pam Bondi, whose chief talent lies in her ability to take a bribe. That was, unfortunately, not a talent that contributed much to her talk on Monday.

However, this part of the day seemed to be a hit with Republican senators, who couldn’t wait to get to a microphone during the next break to talk about how well they had smeared Joe Biden. That was particularly true of Iowa Sen. Joni Ernst, who gushed with joy as she pondered how a day of dragging his family through the mud might directly change the outcome of the looming primaries. Which … does Ernst remember why this trial was going on in the first place?

In any case, Ernst and others proved that Trump had wasted considerable time and effort overseas. After all, plain old American corruption could be had for the cost of a few dollars in campaign contributions and the treat of a Twitter beat-down. There was really no need to threaten Ukraine, what with that kind of talent in America’s heartland.

Finally, the day was capped off by Alan Dershowitz’s effort to explain that this wasn’t “no harm, no foul,” because there aren’t any fouls. With the nation’s constitutional scholars looking on, Dershowitz reminded listeners that he is a defense attorney to the nation’s most notorious, who rode to fame attached to the names Claus von Bülow, O. J. Simpson, and Brett Kavanaugh. His work as a professor of constitutional law consists of: He isn’t one, and his record before the Supreme Court is a perfect 0 for 0. So Dershowitz was clearly the perfect choice to engage in a long technical argument that boiled down to, the Founding Fathers didn’t know what the hell the Founding Fathers were talking about … but Dershowitz could read their minds.

Overall, the day was an embarrassment top to bottom. Much of it, particularly Dershowitz, wasn’t even the fun kind of embarrassment. It didn’t rise to the ranks of so-bad-it-was-good. It was just bad. It was so bad that—other than the GOP- and Trump-pleasing section of Biden-smearing—it’s difficult to recall a single salient point, just hours after they stopped talking. 

In any case, the real case on Monday wasn’t happening in front of Mitch McConnell’s carefully aimed camera. It was happening offscreen, where Republicans were trying desperately to calculate whether giving Trump the quick acquittal that he wants—a move that had seemed like a sure thing on Friday, despite a crackerjack case from the House managers—was still such a slam dunk. Republicans always knew that going along with Trump was going to make them part of the conspiracy. They just didn’t know it was going to be this damn obvious.

House attorneys are using arguments Trump’s legal team made in Senate to fight Trump’s own DOJ

Posted on by Mark Sumner

Yes, you can. No, you can’t. Yes, you can! Those are not just the lyrics to an old show tune; they’re also the refrain in a disconnect between the case Donald Trump’s attorneys are pressing in Trump’s Senate impeachment trial and positions that Trump’s Department of Justice is taking in multiple courtrooms. In particular, the motley crew of con man lawyers undertaking Trump’s defense before the Senate has shouted that the place to obtain cooperation from subpoenaed witnesses is the courts. At the same time, the DOJ is continuing a case that claims that Congress can’t go to court to enforce subpoenas of Trump’s advisers.

Under Attorney General William Barr, the Justice Department’s Office of Legal Counsel has argued that Trump isn’t subject to indictment. It’s argued that Trump can’t be mentioned as a suspect in legal proceedings. It’s argued that Trump can’t even be investigated. And now it’s arguing that when Trump says no to a subpoena, Congress has no recourse at all.

And now the House is using the Trump lawyers’ argument in the Senate to battle Barr’s argument in court.

As The Washington Post reports, attorneys representing the House of Representatives brought the position argued by Trump’s impeachment team into federal court with them on Thursday in the ongoing fight with the Justice Department. In a case that’s already been mentioned several times on both sides of the impeachment proceedings, House attorneys have been seeking testimony from former White House counsel Donald McGahn. When the House dropped cases against other Trump advisers who had resisted subpoenas, it was because its legal team was concentrating on the McGahn case in the hope of making it a model that could force quick obedience to any other subpoena. 

The House already won its case in federal court, with a decisive ruling that was highly dismissive of the case presented by White House attorneys. However, the McGahn case was immediately appealed, and the DOJ argument to the appeals court is that … the appeals court has no business even hearing arguments. Incredibly, the DOJ has argued that the appeals court is “barred from considering subpoena-enforcement suits brought by the House.”

The argument is that the judicial branch was to withdraw from any dispute between the executive and legislative branches. Which is convenient for Trump, since he has no intention of cooperating with congressional oversight in any way. In past cases, courts have been reluctant to engage in this kind of dispute, and have frequently backed away while ordering the other branches of government to work out their differences. But there’s a very big difference between that reluctance to get involved and the idea that the judiciary is barred from making a ruling—especially when the White House has made it clear that it has no interest in negotiating.

Now the House attorneys are back with fresh evidence in the form of the claims that Trump’s attorneys have made in the Senate. Trump’s team has repeatedly claimed that if the House wanted to see witnesses cooperate, it would take them to court. With Trump’s own attorneys arguing a case contradictory to the DOJ position, the House has asked the U.S. Court of Appeals for the D.C. Circuit to make a quick ruling on the basis that the ruling could affect the Senate outcome.

If the court rules that it really is barred from intervening in such cases, then claims that the House should have taken witnesses to court are moot … and Trump apparently has unlimited authority to obstruct. On the other hand, if the court rules that McGahn must testify, it’s very likely that subpoenas will then go out to John Bolton and Mick Mulvaney. If the Senate does not issue such subpoenas, the House will.

The most likely outcome is that the court will come down where it has in the past: The other branches of government should work out their differences without coming to court. But if they have to come to court, the court will give them a ruling.

The only way that Trump comes out a winner is a ruling that his privilege cannot be challenged. In which case the losers are everyone in America.

Second day of Trump impeachment trial ends with Adam Schiff delivering closing argument for the ages

Posted on by Mark Sumner

On Thursday, House managers of the impeachment trial of Donald Trump shifted gears from the chronology of events as laid out on Wednesday to the corrupt intent behind Trump’s actions. The entire day was focused on just the issue of abuse of power and why it is an impeachable offense, and on evidence that Trump’s actions in Ukraine were taken with a deeply corrupt intent. Over the course of the day, that meant revisiting some of the same statements and clips from the hearings that were presented on Wednesday. But the tone of the day was quite different. More pedantic in places. More insistent in others. 

And then the whole thing ended with Adam Schiff giving a 10-minute closer that, in any other circumstance, should have brought on a standing ovation. It was a masterful demonstration not just of how to make a point, but of why Donald J. Trump really has to go.

The opening of the day was really left to House Judiciary Committee Chair Jerry Nadler, who spoke of the basic idea of abuse of power and grounded the first article of Trump’s impeachment in historical thought. For Republicans who love to hear those quotes from founders, Nadler’s talk delivered. From The Federalist papers to English common law to the Constitution itself, Nadler reviewed the origins of both the phrase “high crimes and misdemeanors” and the way in which abuse of power had become defined as a crime that can only be committed by someone who is, obviously, in a position of power.

After that beginning, each of the House managers took a turn at methodically plowing through the history of past impeachments before switching to look at how Trump’s actions compared to those past cases. Schiff took part in carrying one of those segments at mid-morning, but, as the day wore on, it was Rep. Val Demings and Rep. Hakeem Jeffries who again emerged as stars of the management team. Both of them looked specifically at how Trump’s actions regarding Ukraine were taken not out of any concern over corruption or out of any national interest, but purely to benefit Trump personally.

Jeffries in particular did a knock-out job of destroying the argument that Republicans have used so often: the idea that Ukrainian President Volodymyr Zelensky felt “no pressure.” Reviewing the steps that began before U.S. Ambassador to Ukraine Marie Yovanovitch was forced from her position and proceeding to the moment when Trump relented to release military assistance to Ukraine, Jeffries showed that Zelensky recognized that what Trump and Rudy Giuliani were trying to force on him was corrupt and wrong. Zelensky actually tried to resist that effort until Trump piled on the freshman president with a push that came from all directions, and with statements that made it obvious that giving in to Trump was the price of Ukraine’s security.

Over the course of the day, the Democratic team also took the time to pre-puncture some other parts of the Trump argument, with Schiff stepping in to detail the CrowdStrike conspiracy theory, and show that what Ukraine was being asked to support wasn’t some generic review of actions in 2016. Zelensky was being asked to support Russian propaganda, even as Russia was crushing Ukrainian troops at his eastern border. Overall, the day was another powerful, deeply convincing turn from the House team, which is expected to continue talking about abuse of power before moving to discussion of obstruction on Friday.

Then, at the end of the day, Schiff rose again for a brief conclusion. This wasn’t the closing argument for the team. It wasn’t the closing argument for this phase of the presentation. It wasn’t even the closing argument for the case on article one. This was just the closing argument for Thursday. 

But it was amazing. Devastating. A plea for the ages that should have brought the room to its feet, and created a spark of doubt in even the biggest Trump supporter. In less than 10 minutes, Schiff laid out not just why what Trump did was wrong, but why it is vital to the nation that Donald J Trump be removed from office. Immediately. And it started with a very simple question.

Schiff said, "Whether we can say it publicly, we all know what we're dealing with here with this president. Donald Trump chose Rudy Giuliani over his own intelligence agencies ... that makes him dangerous ... Why would anyone in their right mind believe Giuliani over Christopher Wray?" 

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Schiff continued, “If right doesn’t matter, it doesn’t matter how good the Constitution is. The framers could not protect us from ourselves if right and truth don’t matter. And you know what he did was not right. That’s what they do in the old country, where Colonel Vindman’s father came from, the old country that my great-grandfather came from, or the old country that my ancestors came from, or maybe where you came from.

“Because right matters. And the truth matters. Otherwise, we are lost.”

The Senate chamber was silent as he left the podium. But that silence was ringing.

Rep. Hakeem Jeffries destroys Donald Trump’s claims of ‘no pressure’ in critical presentation

Posted on by Mark Sumner

Stopped in a hallway outside the Senate chamber, Sen. Elizabeth Warren was asked what she’d seen that was “new.” Her immediate response — the presentation that had just finished from Rep. Hakeem Jeffries. Warren is right. The facts that Jeffries reviewed may have come from the House hearings, but what they revealed in his presentation placed a whole new light on a key element of Trump’s impeachment.

On Wednesday morning, Trump began his record day of tweets by simply tweeting “No pressure.” That claim, that the Ukrainian government did not feel pressured to give Trump the investigations he wanted, is critical to the case for Trump’s defense. And Jeffries’ presentation showed just how ridiculous that claim really is.

1) The White House meeting and military assistance were both vital to Ukraine's very existence. As a independent democracy.

2) The pressure to maintain a stable relationship with the United States was enormous, because that relationship is the most important connection Ukraine has, and the only partnership that can safeguard them against a serious Russian incursion.

3) When Rudy Giuliani approached incoming President Volodymyr Zelensky saying that he was Trump's personal attorney, Zelensky and team fended off the demands that were passed from Trump through Giuliani for months.

4) Behind the scenes Ukrainian officials scrambled madly to preserve the U.S. relationship without doing something they knew was wrong. They saw what Giuliani was doing, but in supporting corrupt figures from past Ukrainian governments, and smearing ambassador Marie Yovanovitch, but did their best to stay out of it. 

5) Zelensky’s government understood what Trump wanted, but they knew that giving it to him risked losing the bipartisan support in the U.S. Congress that was vital to continued assistance from the U.S. So, as long as it was just Giuliani pushing them, they resisted.

6) Unhappy that Giuliani had not been able to get the investigations started, Trump assigned the “three amigos” to listen to Giuliani and support his play. 

7) After Kurt Volker and Gordon Sondland talked with Giuliani, reinforced the demands, and made it clear that U.S. foreign policy had been subverted to support Trump’s personal goals, Zelensky could see that the only way to preserve any U.S.-Ukraine relationship in the short term was to go along with Trump’s demands. 

8) Even so, Ukrainian officials didn’t come to this position willingly. They drafted a version of the announcement that they hoped would satisfy Trump without making enemies in Congress. But Trump’s team shoved it back and forced them to make it more explicit.

9) With Giuliani, Sondland, Volker and others all pounding the Ukrainian team for announcements of the investigations, Zelensky eventually folded and agreed to the CNN interviews. Sondland walked Zelensky through what he needed to say to Trump to please him.

10) The interviews were only stopped when Trump was pinned down by the whistleblower, congressional inquiries, and public knowledge that forced him to release the military assistance. Without the pressure of the pending aid package, Zelensky withdrew from the interviews.

When Rudy Giuliani pulled up at Zelensky’s door and represented himself as Trump’s personal attorney, Zelensky was able to resist responding to the demands passed to him. It wasn’t until Trump backed Giuliani with senior officials—until “everyone was in the loop”— that officials in Ukraine realized just how corrupt the U.S. had become. And Zelensky saw that, for the sake of his nation, he had no choice to bend to the immeasurable pressure being applied by Trump.

Republicans play the ‘Obama did it too’ card on military assistance—and of course they’re lying

Posted on by Mark Sumner

The first statements from Donald Trump’s defense team in the impeachment trial in the Senate on Tuesday included multiple big, instantly refutable lies, such as White House counsel Pat Cipollone’s claim that no Republicans were allowed into the “secret hearings” held in the House, or that Republicans weren’t allowed to call witnesses. But among a laundry list of talking points disconnected from reality, there was one that stood out: the claim that Trump did nothing wrong because President Barack Obama also withheld funds, from Egypt. 

Obama did withhold funds. He did so when, between the time Congress allocated funds and the time the Pentagon approved their release, military forces in Egypt mounted a coup. Not only were those funds not approved to be sent, not only did Obama notify Congress that they were being withheld, but members of Congress insisted that the funds not be turned over. That included pleas from Sen. Lindsey Graham to hold the funds. But as the House team continues to lay out its case, and Republicans wait for their chance, it appears that “Obama did it too” is going to be the go-to argument from Team Trump.

Overnight, Sen. Marsha Blackburn tweeted out a list of supposed holds placed by Obama (not all of which appear to be real). Then Sen. John Cornyn joined in, both on Twitter and in an interview, to expand the claim not just to Obama, but to administrations going back to Nixon. Neither Cornyn nor Blackburn claimed that Obama withheld funds so that he could twist the arm of a foreign leader so he’d give him a personal political advantage. So far. But it seems likely that they will, as the Obama-did-it-too meme becomes the latest attempt from the Republican side to distract from Trump’s crimes.

Of course, there’s more that Blackburn and Cornyn are ignoring than just the lack of a quid pro quo in any of Obama’s foreign assistance delays. Every aid package has qualifications that have to be met in order for the aid to be approved. Legislation authorizing foreign assistance routinely includes review by agencies that have to sign off that goals have been achieved in advance of the release. In the case of 2019 assistance to Ukraine, that responsibility was assigned to the Department of Defense, which completed its review on May 23 with a conclusion that Ukraine had met required goals on both fighting corruption and promoting democracy.

What happened in past delays was often simply that the certifying agencies found issues, or that, as in the case of Egypt, conditions on the ground had changed significantly between the time the legislation was passed and the time the funds were slated to go out. In some cases, the result was further review before funds were eventually released. In some cases, the result was a more prolonged delay: Egypt didn’t get any funds from the U.S. for almost two years, until the State Department was satisfied that the new president wasn’t just a puppet of the military. In every case, both Congress and the public were aware not just that there was a delay, but of the reasons for the delay. 

In the case of Trump and Ukraine, the assistance was approved by the Department of Defense just two months after the election of a new Ukrainian president who ran on an anticorruption platform. Then Trump placed a hold on the funds in secret. He provided no reason for the delay. The DOD was instructed not to talk about the delay. Congress was not informed of the delay. No reason was ever given for the delay. And the delay remained in place until 1) the delay wasn’t just obvious, but also the subject of public articles, 2) multiple senators contacted the White House expressing concern, 3) three separate House investigations were opened, 4) the White House counsel informed Trump that the whistleblower report was circulating, and 5) the intelligence community inspector general determined that the whistleblower report was urgent. Then Trump released the funds, and Republicans began to make up explanations for the hold—explanations that shifted on a nearly daily basis during the House impeachment hearings.

Other foreign assistance packages have been delayed. For good reasons. With notification of and cooperation from Congress.

Try again, Republicans. Try again.

Trump’s trial, day one: A master class from House Democrats, and empty seats from Senate Republicans

Posted on by Mark Sumner

On the first full day of the presentation to the Senate in the impeachment trial against Donald Trump, House Intelligence Committee Chairman Adam Schiff and the House management team delivered the evidence against Trump in three different ways: in a two-hour opening statement; in a six-hour walk-through of the whole timeline of events; and in a ten-minute recap of the highlights. The entire team was effective, and the presentation was clear. Schiff’s opening account was genuinely compelling—sharp, precise, impactful, well-supported by short moments of testimony from the House hearings, and leaving absolutely no doubt as to Trump’s guilt.

So naturally, throughout the day, Republicans left their seats, wandered out into the hallways, and complained that they were “bored.” Though the rules of the trial require all senators to be present, double-digit numbers of Republicans were missing at any given time. At least one, Missouri’s Josh Hawley, found an opportunity to make an appearance with Fox News’ Tucker Carlson during the trial … without garnering as much as the shake of a finger from Chief Justice John Roberts. 

For anyone tuning in from outside the Senate, Schiff’s opening was a master class in getting across complex information. Despite the volume of material on events and individuals, Schiff moved from point to point with precision, delivering information in a speech that’s likely to appear in future textbooks. Even for those who had seen the facts presented in House hearings, he was simply compelling. For anyone watching—whether or not they knew the facts of the case coming in—it was spellbinding work: a scene straight out of the best courtroom dramas.

Following Schiff’s introduction of the facts, the House team worked through events in a timeline, starting with the smear campaign to unseat U.S. Ambassador to Ukraine Marie Yovanovitch, and proceeding to the whistleblower, congressional investigations, and the eventual release of U.S. aid that had been allocated to Ukraine. Each presenter took a section of the timeline, mixing a recitation of facts with snatches of testimony. All of the presentations moved the story forward, but some presenters brought additional energy to their time in front of the camera, presenting the information in a personal and genuine way. In Rep. Val Demings’ case, her experience in law enforcement came through in her clear disdain for the criminal behavior of Trump, Rudy Giuliani, and others maneuvering to game the system for personal gain.

Unlike the lengthy opening act on Tuesday, when amendments, efforts to obtain witnesses, and Republican actions to suppress those witnesses carried the hearing into the early hours of the morning, Schiff actually wrapped the presentation within 8 hours after it began, revisiting the high points of the day in a compressed replay. Whereas Schiff used his opening statement to deliver a thorough, sharp account of the events leading to Trump’s impeachment, in the final 10 minutes of the night he touched again on some of the most compelling moments of that story. That included the scheme against Yovanovitch and the sorry spectacle of officials standing back to allow Giuliani to threaten and harass a widely respected ambassador.

Across all the presentations, there was a theme: Trump wasn’t fighting corruption; he was the source of corruption. The actions that Trump took in an effort to secure an announcement that had personal benefits only for him came at the cost of the national security of the U.S. and Ukraine. It also came at enormous cost to the relationship between the two nations, and to the whole idea that the United States is on the side of justice and democracy.

And, of course, despite the fact that this was the first day of the presentation; despite the fact that many Republican senators claimed not to have watched a moment of the hearings in the House; despite the fact that Schiff and his team presented their information in a way that would have made a must-watch documentary—or a genuinely outstanding college course—there were those empty seats. Republicans complained that the information was just the same thing over and over, that they were bored, that they … were absent. Anyone wondering why Mitch McConnell locked down the camera locations and kicked out C-SPAN has their answer in those empty seats.

Chief Justice John Roberts opened his mouth long enough on Tuesday evening to caution visitors that this was the United States Senate, the “greatest deliberative body” on the planet. He should have told the senators. But then, it seemed Roberts had no concern about the Republicans violating the rules he was supposed to enforce.

McConnell makes it clear: He doesn’t want witnesses at any point in impeachment trial

Posted on by Mark Sumner

As Senate Minority Leader Chuck Schumer made multiple attempts to subpoena documents and witnesses during the opening day of the Senate impeachment trial of Donald Trump, both Senate Majority Leader Mitch McConnell and Trump’s legal team sang the same tune: This was the wrong time. In response to every round of amendments, Trump’s attorneys repeated the claim that they weren’t really trying to suppress witnesses; it was just that Schumer was asking at the wrong time. There would be a point later in the trial, after the case was made and debates were complete: Then there’d be a time when the rules would allow for witnesses. Or, actually, when the rules would allow for debate over whether any witnesses should be called, with a provision to shut down all witnesses with a single vote.

And McConnell has made it clear how he wants to use that vote. Despite all the overnight protests that if Schumer would only sit down, and the House managers would stop supporting the call for subpoenas, there would be a time for all that later, McConnell has made the real plan perfectly plain to Senate Republicans: He wants no witnesses in this trial. Ever.

As CNN reports, before the trial began, McConnell claimed that he was the impeachment of Bill Clinton as a model for the trial of Trump, leaving the question of calling witnesses until later in the process. McConnell went into the trial pretending that he wasn’t shutting out witnesses, and several Republicans—such as the always-willing-to-pretend-at-fairness Susan Collins—have indicated that they will consider the possibility of calling witnesses.

But the structure of the trial, as defined by McConnell’s passed-at-2-a.m. proposal, means that any witnesses called would come after the case is made by the House managers, and after the period of questioning and debate. So witnesses could appear, say their piece … and apparently leave without comment. During Tuesday’s long session, House Intelligence Committee Chair Adam Schiff made it clear what McConnell’s trial structure really meant: “A vote to delay is a vote to deny," he said.

That’s not just the plain reading of the resolution that Republicans passed along party lines in the early morning Wednesday; it’s also exactly what McConnell has told his fellow senators in what CNN describes as “private meetings.” In addition to telling those senators that he wants no witnesses, McConnell has promised that if Democrats succeed in getting enough Republican votes to call someone such as John Bolton or Mick Mulvaney, McConnell will respond with flood-the-zone tactics, calling Joe Biden, Hunter Biden, and others who are the subjects of right-wing conspiracy theories.

But, especially in light of the rigid voting on Tuesday night, McConnell seems confident that he won’t face that prospect. Instead, he expects to put a bow on the whole affair by this point next week … handing Donald Trump a chance to scream about exoneration without the threat of hearing from a single witness or facing a single document.

Trump doesn’t just confess to obstruction—he brags about it

Posted on by Mark Sumner

Being in the gold-plated, billionaire-infused reaches of Davos clearly makes Donald Trump comfortable. At an early-Wednesday press shindig, Trump scoffed at the impeachment trial that opened in the Senate on Tuesday afternoon. In particular, Trump was amused by the idea that the legislature might actually want the information he’s been withholding from both the House and the Senate—an action that’s the second article of Trump’s impeachment.

"Honestly, we have all the material," said Trump. "They don't have the material." That’s right: Trump isn’t just admitting that he’s blocking the Congress and the public from seeing critical information that reveals the truth behind the charges. He’s doing it with a big, proud middle finger delivered from a meeting of the world’s wealthiest.

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New emails emerge: OMB officials were planning to withhold Ukraine aid before Trump call to Zelensky

Posted on by Mark Sumner

In a midnight squeaker, the Office of Management and Budget decided to obey a federal court order and produced nearly 200 pages of documents directly related to the withholding of U.S. military assistance from Ukraine. The collection of emails was turned over in response to a FOIA request from the website American Oversight, which made the information public even as the Senate was debating an amendment to seek other information from the OMB.

The emails obtained show that OMB officials were already aware of Donald Trump’s plans to suspend Ukraine aid before his “perfect” call to the president of Ukraine. Included is a planning document from political appointee Michael Duffey—one of the four people Sen. Chuck Schumer has sought to subpoena for Trump’s Senate impeachment trial—that show that the OMB was planning to bring down the hammer on Ukraine assistance even before Trump put in a demand for “a favor” in the form of political investigations.

The FOIA request had a midnight deadline. OMB avoided further court action by turning over the redacted emails with just two minutes to spare.

Included is a document prepared on the evening of July 24, hours before Trump’s phone call to Ukrainian President Volodymyr Zelensky. This "Ukraine Prep Memo" was sent to Duffey, but just what it says isn’t clear—because almost all of the email is hidden behind redactions. Which shows that, important as these FOIA requests may be, they’re no substitute for a subpoena.

What can be seen is that Duffey responded to a Department of Defense announcement in June and communicated with OMB official Mark Sandy to discuss Ukraine assistance. And the two of them said … redacted. Duffey spent some time reviewing public announcements of DOD’s approval of Ukraine assistance, and the announcement that it was prepared to provide material to Kyiv. Then he and Sandy discussed the topic again, saying … redacted. They worked out a draft of a note to go back to DOD, the contents of which are … redacted. And all through the day of Trump’s call, they passed versions of their note around the OMB—a note that remains fully redacted. With the names of most of those who received the note also redacted. In all, there are more than a dozen emails zipping around the OMB on July 25 alone, with Duffey seeking to meet with the general counsel’s office and dispatching notes to unknown recipients. But the contents of those emails is completely—completely—redacted.

Which isn’t so much a FOIA response as it is a teaser reel. It’s possible to see that Duffey was keeping an eye on Ukraine issues in the days before Trump’s call, and that he reviewed what appears to be every public release of information from the DOD, as well as how that information was being reported in the press. Then, in the period directly around Trump’s call, Duffey opened a floodgate of communication on the Ukraine topic to every point of the OMB compass and to other officials in unknown agencies. With even most of the recipients of the emails redacted, it’s impossible to tell which higher officials were in the chain.

And, while it’s certainly easy to guess that Duffey was telling everyone to stay quiet on Ukraine as Trump began an illegal hold on assistance, none of that really leaks past the black boundaries, as every single word of substantive content at this point is hidden.

The pattern continues into August, with every substantive word and most of the recipients in the exchanges still redacted. However, Duffey continued to send dozens of notes, and to complain about the “challenges” he was facing on the Ukraine issue. And while the redaction hides any recipients of the notes within the DOD, one in-the-clear line notes that Duffey had some questions from the DOD, showing that the department was involved in the back-and-forth.

There is some information from a presentation available deep in the exchange. It shows that Duffey was communicating with the DOD about shifts in both the “commitment date” and the “obligation date” for the assistance to Ukraine. It also shows that everyone was aware that deadlines were looming that would render the assistance legislation moot. But much of this presentation has been blacked out to leave nothing but the dates, disguising real topics of concern.

Sixty-four pages in, there is a document from Duffey indicating that “we have no interest in delaying any action up until just before the obligation date,” but the statement is made in response to a request that’s been redacted, and the remainder of the sentence is redacted. It appears that Duffey is saying that the DOD should continue to prepare as if the aid would be provided … but it is far from clear. Similarly, there’s an indication in one email that funds “will go into the system” and be obligated on Aug. 19, but since Duffey’s reply to that statement is redacted, it’s impossible to tell if he agrees with that move or acts to stop it. In fact, looking at the connection between that note and another on Aug. 17, it seems possible that the funds under discussion are not even allocated to Ukraine.

Overall, what can be learned from the emails is that Ukraine was the subject of a furious exchange on the day of Trump’s phone call and was a frequent target of Duffey’s concern from June right up until the whistleblower report on the issue was made public. Duffey’s clear interest in the DOD announcement and his review of publications that followed the announcement show that he was looking at how much information had been released, which fits with other information showing that he not only helped clamp down on the assistance, but also told military officials to go quiet on the subject of Ukraine.

However, the biggest thing that can be learned from the FOIA response is that Duffey and the OMB absolutely thumbed their noses at the federal order. Technically they’ve “responded” to the request. Practically, they’ve done so by releasing no more than a collection of email headers and occasional sentences that reveal more about when Duffey was having lunch than about Ukraine assistance.