Senators on Thursday concluded their final day of questions for House prosecutors and President Donald Trump’s defense team in the president’s impeachment trial before a critical vote, expected Friday, on whether to call witnesses.
The Senate remains divided on the witness issue, with Democrats calling for testimony from ex-national security adviser John Bolton and other top administration officials. Republican leaders are seeking to block additional testimony and documents in a bid for a quick acquittal of Trump.
Senators asked 180 questions Wednesday and Thursday on everything from executive power to the ability to call witnesses — an issue that has lawmakers sharply divided.
Highlights from the impeachment trial so far
- Highlights from Day One and Day Two of the question-and-answer phase.
- GOP swing vote Sen. Alexander says he will vote against witnesses
- Schiff slams GOP senatorson whistleblower questions: 'Disgraceful'
- Murkowski pushes Trump team on Bolton testimony.
White House's Philbin suggests president will keep using Giuliani as international 'confidante'
Rudy Giuliani wasn't conducting foreign policy when he urged Ukraine to investigate former Vice President Joe Biden, deputy White House counsel Patrick Philbin said Thursday.
A bipartisan group of senators — Democrats Kyrsten Sinema and Joe Manchin and Republicans Susan Collins and Lisa Murkowski — asked Trump's lawyers, "Will the president assure the American public that private citizens will not be directed to conduct American foreign policy or national security policy unless they have been specifically and formally designated by the president and the State Department to do so?"
That was a not-so-veiled reference to Rudy Giuliani and his meetings with current and former Ukrainian officials demanding investigations into the CrowdStrike conspiracy theory and the Bidens.
Philbin said, "There was no conduct of foreign policy being carried on here by a private person," and "many presidents have relied on people who are trusted confidantes." Philbin added "there would not be anything improper" about continuing to use a private citizen in the same way in the future.
As for the senators' concern that conduct could potentially violate the Logan Act, which bars private citizens from intervening without authorization in disputes between the United States and foreign governments, Philbin said, "the president's policy is always to abide by the laws."
House manager Adam Schiff called Philbin's comments a "breathtaking admission," given Trump's lawyers have maintained the president withheld aid to Ukraine as a matter of policy.
"What president's counsel said was that no foreign policy was being conducted by a private party here. That is, Rudy Giuliani was not conducting U.S. foreign policy. Rudy Giuliani was not conducting policy," Schiff said. "The investigations Giuliani was charged with trying to get Ukraine to announce into Joe Biden, into this Russian propaganda theory, they just admitted, was not part of policy."
It was, Schiff said, "a domestic political errand," referring to the testimony of ex-White House Russia expert Fiona Hill.
Trump's lawyer says no way to tell if political actions are corrupt
One of Trump's attorneys defended the president by essentially arguing that there's no way to tell if political actions are corrupt because you "can't get in someone's head."
Sens. Brian Schatz, D-Hawaii, and Lisa Murkowski, R-Alaska, asked: "Would you agree that almost any action the president takes or any action the vast majority of politicians take is — to one degree or another — inherently political. Where is the line between permissible political actions and impeachable political actions?"
Philbin said that for politicians, "there’s almost always some eye to the next election" in every decision made.
"To start getting into motives and calling that corrupt, that's very dangerous," he said. "You can't get in someone's head to parcel out what is corrupt motive and what is not."
This comes a day after Dershowitz argued that a quid pro quo done in a president's political interest is not impeachable because every politician believes their election is in the public interest.
Trump is alleged to have attempted a corrupt quid pro quo with Ukraine by withholding military aid and an official White House visit for the country's president in exchange for investigations into Democrats. The House impeached him for those efforts, charging him with abuse of power and obstructing its investigation of them.
Schiff responded by playing a clip of Dershowitz's remarks and saying if Trump's conduct is deemed OK, then "there is no limit" to what a president will be allowed to do with regard to soliciting foreign help in an election.
Schiff offers to limit witness depositions to a week after defense laments a protracted trial
Schiff offered to limit witness depositions to one week after Trump's defense warned that calling witnesses could delay the trial.
"I will make an offer to opposing counsel who have said that this will stretch on indefinitely if you decide to have a single witness: Let's cabin the depositions to one week," Schiff said.
"In the Clinton trial, there was one week of depositions and you know the Senate did during that week, they did the business of the Senate. The Senate went back to its ordinary legislative business while the depositions were being conducted. You want the Clinton model? Let's use the Clinton model."
Lawyer says Trump not 'necessarily' pushing Biden investigation. Call summary shows otherwise.
Trump lawyer Patrick Philbin argued on Thursday that Trump wasn't "necessarily" asking for a probe of the Bidens, he just wanted to look into the firing of former top Ukrainian prosecutor Viktor Shokin
"All the president says is 'so if you can look into it, that sounds horrible, it sounds like a bad situation,'" Philbin said, pointing to the White House summary of Trump's July 25 call with Zelenskiy. "That's not calling for an investigation necessarily into Vice President Biden or his son, but the situation in which the prosecutor had been fired, which affected anti-corruption efforts in the Ukraine.'
"And President Zelenskiy responded by saying 'the issue of the investigation of the case is actually the issue of making sure to restore the honesty, so we will take care of that,'" Philbin added.
Shokin, who had investigated the energy company that Hunter Biden sat on the board of, was seen as ineffective by the international community and pushed out for not more aggressively tackling corruption. Trump and allies have accused Biden of acting with his son's interest in mind when, in 2016, he called on Ukraine to oust Shokin, threatening to withhold loan guarantees if Ukraine did not remove the prosecutor.
His call, on behalf of the Obama administration, was backed by a number of other countries and international authorities.
There has been no evidence that Biden acted improperly in handling Ukraine policy while his son was on the board of Burisma, the Ukrainian gas company that Shokin was at one time investigating. The investigation into Burisma was reportedly dormant by the time Biden pushed for Shokin's ouster.
In the call summary, Trump said to Zelenskiy: "The other thing, there's a lot of talk about Biden's son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great."
"Biden went around bragging that he stopped the prosecution so if you can look into it ... It sounds horrible to me," he continued.
Will the Senate trial end Friday night? Maybe.
What is going to happen after the Q+A period wraps up at the end of today? It’s a giant open question. It’s totally possible the trial ends Friday night. There is also a very real possibility that the trial continues past Friday.
WHAT WE KNOW WILL HAPPEN ON FRIDAY:
- They’ll start with up to four hours of debate (equally divided) on the witness/documents question.
- There are no motions in order after that debate, so the next vote would be on whether to even start discussions and additional votes on subpoenaing additional witnesses or documents.
THEN, THE WILD WEST:
Once the witness question is dispensed with, any senator can introduce a motion or resolution.
- That could be a motion to dismiss, a motion to go straight to the final vote, a motion to move to final arguments, or even more motions for witnesses.
- McConnell COULD introduce a second organizing resolution here to lay out the rest of the trial. Again, that would be subject to up to two hours of debate (equally divided), and as many amendments as Democrats would want to introduce (like we saw when they passed the original organizing resolution.)
SOME OPEN QUESTIONS:
- Will they have closing arguments? Will those be on Friday? How long will they be?
- In 1999 there were up to 6 hours (equally divided) of closing arguments. That took an entire day of trial.
- It’s worth noting, that in 1999, closing arguments were following additional witness depositions. If they vote to not have witnesses, they might not feel the need to spend this much time on closing arguments.
- When those will start will be based on what 51 Senators agree to.
- Will there be deliberations? How long will they be? Will they be closed?
- In 1999 there were four days of CLOSED door deliberations. 67 Senators can vote to open that up.
- In 1999, each Senator had 10 minutes to speak during those closed-door deliberations. We wouldn’t see that on camera, but we could see offices release their speeches.
- If the witness vote fails, could they have a final vote on whether to acquit on Friday night?
- Yes. But that would require 51 Senators to agree to do that and an agreement from Democrats to not introduce endless motions or amendments to a second organizing resolution.
- Could this go past Friday night?
- YUP! Again, flipping on our hypothetical hat again, they could set up a situation where they do closing arguments Saturday, deliberations on Monday, and a vote either late Monday or even Tuesday. Again, that’s just spitballing.
Trump attorney gives State of the Union preview to defend Trump
Trump's attorney Eric Herschmann, in what amounted to a State of the Union preview, listed a bunch of Trump's accomplishments in response to a question about the president having the American people in mind in his decision-making.
The House charged Trump with abusing his power by attempting a corrupt quid pro quo with Ukraine to benefit him politically. Trump's actions with regard to Ukraine were not in the public interest but an attempt to "cheat" in the upcoming election, Democrats alleged.
In response to a question from Sens. Braun and Barrasso on whether Trump has the American people in mind — but not specifically in regard to his actions in Ukraine that he was impeached over — Herschmann cited a long list of things Trump has either done as president or have happened during the Trump presidency.
Herschmann cited unemployment numbers, the USMCA, tax cuts, criminal justice reform and more, even invoking the State of the Union to say Trump's economic accomplishments will "resonate with Americans" when the president gives the address next week.
"If all that is solely, solely in their words, for his personal and political gain, and not in the best interests of the American people, then I say God bless him, keep doing it," he said. "Keep doing it, keep doing it."
Herschmann did not, however, get into Trump's conduct toward Ukraine.
Schiff: DOJ lawyer argued in court Thursday that House can impeach if subpoenas are ignored
Schiff drew laugher after he referred to an exchange that took place in federal court Thursday.
"We’ve been debating whether a president can be impeached for essentially bogus claims of privilege for attempting to use the courts to cover up misconduct” and after the Justice Department has resisted House subpoenas," Schiff said.
"So the judge says, 'Well if the Congress can’t enforce its subpoenas in court, then what remedy is there?'" said Schiff.
"And the Justice Department lawyer’s response is: 'Impeachment. Impeachment.' You can’t make this up," said Schiff, drawing laughter from senators in the chamber.
Who's paying Rudy? Giuliani's compensation brought up in Senate trial
Democratic Sens. Jack Reed, Tammy Duckworth and Kamala Harris asked who is paying Trump's personal attorney Rudy Giuliani, whose legal work for the president is unpaid.
Reuters has reported that Giuliani's indicted associate Lev Parnas paid Giuliani $500,000 for consulting related to Parnas' firm. Parnas and another indicted associate, Igor Fruman, worked with Giuliani in Ukraine as part of his efforts there.
Schiff said, "I don't know who's paying Rudy Giuliani's fees," but "if other clients are paying and subsidizing his work in that respect, it raises profound questions."
Sekulow responded by pointing at Hunter Biden sitting on the board of a Ukrainian gas company when his father oversaw Ukraine policy in the Obama administration, adding, "and you're concerned about what Rudy Giuliani, the president's lawyer, was doing when he was over trying to determine what was going on in Ukraine?"
Bondi, Demings get fired up
The energy in the chamber seems flatter on Thursday. Several senators were absent shortly after the proceedings began, and the press and public galleries have lots of empty seats.
That changed, however, when White House lawyer Pam Bondi got up to take a friendly question on the Bidens. After getting criticized online for fumbling through her large binder on Wednesday, Bondi took the podium with just two pages of notes, including Sharpie bullet points, which she read through at a much higher volume than most senators have done.
In rebuttal, Rep. Val Demings seemed fired up, too, and repeatedly looked directly at Bondi during her response.
During an answer from Schiff about subpoenas, and when and how they were issued, both Sens. Collins and Murkowski appeared very engaged, listening and taking notes.
Rand Paul criticizes Roberts for rejecting his question, saying it didn't refer to whistleblower
Sen. Rand Paul criticized Chief Justice John Roberts on Thursday after he refused to read Paul's question out loud, apparently because it included the name of the person right-wing media alleges is the whistleblower who set off the impeachment inquiry.
Paul, a Kentucky Republican, read the question — and the person's name — at a news conference held after he walked out of the president's impeachment trial following Roberts' decision.
Paul, who has repeatedly called for the whistleblower to be identified publicly, claimed he wasn't trying to out the whistleblower with his question, which asked if the person in question had a close relationship with a House committee staffers and had "worked together to plot impeaching the president."
"I think this is an important question, one that deserves to be asked, and makes no reference to anybody who may or may not be a whistleblower," Paul said.
Paul said he thought Roberts made "an incorrect finding" by failing to read the question, which he'd wanted both House managers and White House lawyers to respond to.
When NBC News asked if he should be attending the trial, Paul said: "Yeah, I will be there very shortly. Thanks for the question."
John Tye, CEO of the nonprofit law office Whistleblower Aid, issued a statement saying: “Senator Paul’s effort to out the whistleblower is reckless and intended to distract and intimidate, not educate. Attaching any name to the identity the whistleblower, whether accurate or not, puts the named individual at tremendous personal risk.”
Dershowitz challenges critics to a Lincoln-Douglas-style debate
Schiff says Dershowitz argument amounts to 'normalization of lawlessness'
Adam Schiff, D-Calif., the lead House manager in the impeachment trial, said an argument made by Dershowitz amounted to the "normalization of lawlessness" and said the Senate trial has witnessed "a descent into constitutional madness" over the past few days.
Dershowitz faced intense backlash Thursday over an eye-opening argument he made against impeaching his client.
Dershowitz argued Wednesday that if a president engaged in a quid pro quo arrangement for his or her own political benefit, it is not impeachable because all politicians believe that their elections are in the public interest.
"If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment," he said during the first day of the question-and-answer period of the trial.
Schiff said a lawyer only makes an argument like that "because you know your client is guilty and dead to rights."
"That is an argument made of desperation," he said.
Chief justice refuses to read Rand Paul question
Chief Justice John Roberts refused to read the second question of the day at the president's impeachment trial, which came from a Republican senator who's tried to out the whistleblower who raised red flags about the president's July phone call with his Ukrainian counterpart.
"The presiding officer declines to read the question as submitted," Roberts said after looking at the question from Sen. Rand Paul, of Kentucky, who'd reportedly tried to get a similar question read on Wednesday.
Immediately after Roberts’ decision, Paul stood and left the chamber.
Politico reported that Roberts had let senators know on Wednesday he would not read questions naming or identifying the whistleblower, whose lawyers have said has been subject of death threats.
A spokesman for Paul, Sergio Gor, tweeted earlier Thursday that Paul planned to keep pushing.
"Senator Paul will insist on his question being asked during today’s trial. Uncertain of what will occur on the Senate floor, but American people deserve to know how this all came about ..." Gor tweeted.
Lofgren: Trump team's rationale for declining to comply with subpoenas an 'excuse'
The first question Thursday was about the House subpoenas in the impeachment investigation. Rep. Zoe Lofgren, D-Calif., answered that the White House argument that the subpoenas were invalid "is wrong" and "an excuse."
Trump's legal team has said the administration did not comply with subpoenas because they were authorized before the House took a full vote to open the impeachment investigation. Lofgren said that under House rules, they did not need such a vote to launch the investigation. She also said several judges have been impeached without a full House vote launching a probe.
The legal team's rationale for not complying is "just an excuse about President Trump's obstruction."
Trump "refused to comply before the [full] House vote and after the House vote," Lofgren said, pointing to Trump saying that he was determined to fight all the subpoenas.
'Nonsense,' 'preposterous,' 'absurd': Critics lecture Prof. Dershowitz about trial remarks
Alan Dershowitz faced intense backlash Thursday over an eye-opening argument he made against impeaching his client.
Dershowitz argued Wednesday (and then defended at length on Thursday) that if a president engaged in a quid pro quo arrangement for their own political benefit, it is not impeachable because all politicians believe that their elections are in the public interest.
"If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment," he said during the first day of the question-and-answer period of the Senate impeachment trial.
So if Trump withheld nearly $400 million in aid to pressure Ukraine to announce investigations of Democrats to help his campaign, the retired Harvard law professor said it wasn't an impeachable offense because Trump thinks his election would be to the country's benefit. Therefore, his motive was not corrupt.
The backlash to that legal analysis was furious.
Pelosi hopes 'senators will have the courage and the ability to handle the truth'
Dershowitz tweets to critics: 'I did not say or imply that a candidate could do anything to reassure his reelection'
The question on Wednesday, from Sen. Ted Cruz, R-Texas, was: "As a matter of law, does it matter if there was a quid pro quo? Is it true quid pro quos are often used in foreign policy?"
Dershowitz answered, “The only thing that would make the quid pro quo unlawful is if the quo were, in some way illegal.” He added: “If a president does something which he believes will help him get elected in the public interest that cannot be the kind of quid pro quo that results in impeachment.”
He responded at length on Twitter Thursday morning to the ensuing criticism:
What if there's a tie vote? Everything you need to know about witnesses and Trump's trial
Ahead of the vote on Friday afternoon on whether to call witnesses at President Donald Trump's impeachment trial, GOP Senate leaders believe they will have just enough votes to block additional testimony and documents.
In order for witness testimony to be approved, four Republicans in the Senate would need to vote alongside all Democrats.
So far, only Sen. Mitt Romney of Utah, has indicated he will vote in favor of witnesses, and Sen. Susan Collins of Maine, has said it is likely she will, too. Sen. Lisa Murkowski of Alaska has hinted at an interest in hearing from witnesses but has not provided a strong indication of how she will vote.
Article II: Inside Impeachment - Q&A time
In the latest episode of Article II, Steve Kornacki talks to Leigh Ann Caldwell, NBC News correspondent covering Congress, about the first round of the question-and-answer period in the Senate trial.
The two discuss:
- The Democrats’ effort to convince their fellow senators to call new witnesses in the trial.
- The Republicans’ strategy to argue that the president’s conduct is not impeachable.
- Where the math in the Senate stands on witnesses as we head into day two of Q&A.
FIRST READ: Senate Republicans appear ready to fall in line on impeachment vote despite earlier concerns
It’s so revealing how Republicans’ attitudes about the Ukraine scandal have evolved in just four months.
We’ve gone from Sen. Lindsey Graham, R-S.C., saying evidence of a quid pro quo would be “very disturbing,” to GOP senators not willing to hear from John Bolton, who claims in a new book that President Trump told him he was linking Ukraine’s security aid to investigating the Bidens.
We’ve also moved from some GOP senators being opposed to a president asking a foreign leader to dig up dirt on a political rival — “Look, it is not appropriate for any candidate for federal office, certainly, including a sitting president, to ask for assistance from a foreign country,” Sen. Pat Toomey, R-Pa., said in September — to Trump lawyer Alan Dershowitz now suggesting that a president could do almost anything to win re-election.
That evolution tells you where we’re likely headed.
Bakery sending a message to Republican senators
Early notes on Thursday's session
Thursday's Q&A
Eight more hours to go. Notable moments so far include deputy counsel Patrick Philbin infuriating Democrats with his argument on campaign finance laws and foreign interference; Philbin saying no one from White House counsel’s office knew about the Bolton manuscript before The New York Times reached out for comment on Sunday; Jay Sekulow’s more sharply partisan tone and his call for witnesses, including the Bidens, Schiff and the whistleblower; the Dershowitz argument on quid-pro-quo.
Witness watch
The mood in and around West Wing appears more positive than 36 hours ago. Officials still feel cautiously optimistic about deflecting calls for witnesses. Caveat: Any news bombshell between now and Friday night could change the game.
Just catching up? Here's what you missed.
Senators start their second day of questions and answers after asking more than 90 questions of House managers and Trump's defense team on Wednesday.
Here's a brief recap of the trial so far:
- Senate passes McConnell impeachment rules after nearly 13 hours of debate.
- Day Two: Democrats begin opening arguments.
- Day Three: Prosecution's presentation continues.
- Day Four: Democrats wrap up case.
- Day Five: Trump's legal team begins its defense.
- Day Six: Defense team's presentations continue.
- Day Seven: Trump's defense wraps up arguments.
- Day Seven: Key moments from the question-and-answer phase.
Pompeo to visit Ukraine at height of Trump impeachment trial
Secretary of State Mike Pompeo will arrive in Ukraine on Thursday at the height of President Donald Trump's impeachment trial that has dragged the Eastern European country into the maelstrom of U.S. politics.
Pompeo was supposed to visit earlier this month but was forced to postpone his visit because of unrest at the U.S. Embassy in Iraq after deadly U.S. airstrikes.
Some observers predict that due to recent events, this could be a tricky trip.
Trump's Senate trial: Key moments from Day 1 of the question-and-answer phase
House impeachment managers and President Donald Trump's defense team faced questions from senators on Wednesday as Trump's Senate trial entered a new phase.
The first query, from the three GOP senators who are most likely to vote to continue the trial with additional witnesses, may well have been the most pivotal. Senators remained divided over the issue Wednesday, with Republicans working get the vote need to block a call for witnesses.
Here's a look at some of the best — and most important — moments from Wednesday's question and answer session.
Scholars push back on Dershowitz's 'outrageous' and 'preposterous' argument
Constitutional scholars and legal experts pushed back on what they called an "outrageous" and "preposterous" argument Trump defense team attorney Alan Dershowitz made Wednesday.
Dershowitz, a retired Harvard law professor, argued that a quid pro quo arrangement benefiting a president politically is fine because all politicians believe their elections are in the public's interest.
"If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment," he said during the first day of the question-and-answer period of the Senate impeachment trial.
Erwin Chemerinsky, dean of the University of California, Berkeley law school, told NBC News he thought Dershowitz's argument was "absurd and outrageous."
"It means that a president could break any law or abuse any power and say that it was for the public interest because the public interest would be served by his or her election," he said.
Sanford Levinson, a University of Texas law professor, said Dershowitz's argument was "on its face, preposterous."
Levinson said that while candidates for office "make a variety of deals that they would prefer not to in behalf of the good cause" of their election, "we rely on a certain moral compass that will stop at, say, outright bribery" and "suggesting assassinations."
And NBC News/MSNBC legal analyst Neal Katyal, a former acting U.S. solicitor general, called Dershowitz's argument "inane."
"That would allow a president to do literally anything and destroy re-elections as a check on presidential behavior," Katyal said.
Later in Wednesday's session, Dershowitz called the president "irreplaceable" and said constitutional scholars who disagreed with his assessments were "influenced by their own bias" and "simply do not give objective assessments of the constitutional history."
On Thursday, Dershowitz said his comments were being "willfully distorted" by the media.
"They characterized my argument as if I had said that if a president believes that his re-election was in the national interest, he can do anything," Dershowitz tweeted. "I said nothing like that, as anyone who actually heard what I said can attest."