Senators grilled both the House managers and the defense team on Wednesday during the first day of the question-and-answer period of President Donald Trump's impeachment trial.
Senators have a total of 16 hours over two days to probe House impeachment managers as well as the White House defense team, which have had three days each to deliver their arguments.
Senators are still divided on whether to hear from witnesses.
Highlights from the impeachment trial so far
- Dershowitz says Trump pursuing quid pro quo to help re-election isn't impeachable.
- Trump defense attorney says Burisma probe in the U.S. interest.
- Nadler argues Giuliani's role proves Trump was not concerned about corruption in Ukraine.
- Former Nixon WH counsel: 'Dershowitz unimpeached Richard Nixon.'
White House mood on witnesses: 'Cautiously optimistic'
The mood in and around the White House on the witness vote seems to be shifting into a more "cautiously optimistic" position, in the words of one source familiar with the matter. They get the sense some Republicans are wary of opening a Pandora's box with multiple witnesses. Another source frames the witness question to NBC News this way: It's a "jump ball, but we have the taller player." But there's an acknowledgement that news-of-day events could intervene, with one official using another sports analogy, saying the ball could still get fumbled between now and Friday.
Notable Q&A moment
Alan Dershowitz is getting a lot of attention for making the argument that it cannot be an impeachable quid-pro-quo offense "if a president does something which he believes will help him get elected in the public interest." That has some outside legal experts scratching their heads, given what it implies if taken to its logical conclusion.
The White House is releasing a letter sent to John Bolton's attorney warning him his manuscript "appears to contain significant amounts of classified information," invoking the law and Bolton's NDA and demanding "the manuscript may not be published or otherwise disclosed without the deletion of this classified information." Worth noting that Bolton's attorney pre-butted, in effect, this exact argument just a few days ago, writing the manuscript "contained no information that could reasonably be considered classified."
Schumer: Dems directed questions to managers to give them a 'chance to rebut the false arguments'
"We thought it was a good morning, a good afternoon for us," a cheerful Senate Minority Leader Chuck Schumer told reporters during a short break from the question-and-answer session of the Senate trial.
He also nodded toward the Democrats' strategy so far.
"The reason we directed so much of our questions to the House managers is because they needed the chance to rebut the false arguments, the fallacious reasoning, the half-truths, and even no truths that the three days of the president’s counsel made, and this was their first chance to do it," he said.
Harris quotes from 'Access Hollywood' tape, compares Trump to Nixon
Sen. Kamala Harris, D-Calif., quoted from the infamous “Access Hollywood” tape during a question about executive power in which she compared Trump to former President Richard Nixon.
"President Nixon said, quote, 'when the president does it that means that it is not illegal.' End quote. Before he was elected, President Trump said, quote, 'when you're a star they let you do it, you can do anything,' end quote," Harris said. That last remark was a quote from the "Access Hollywood" tape on which Trump was caught making vulgar comments about women.
Harris continued: "After he was elected, President Trump said that Article Two of the Constitution gives him, quote, 'the right to do whatever he wants as president.' End quote."
"These statements suggest that each of them believed that the president is above the law, a belief reflected in the improper actions that both presidents took to affect their re-election campaigns. If the Senate fails the hold the president accountable for misconduct, how would that undermine the integrity of our system of justice?" Harris asked.
Schiff responded by saying, "I think this is exactly the fear.”
"I think if you look at the pattern in this president's conduct and his words, what you see is a president who identifies the state as being himself," Schiff said. "When the president talks about people that report his wrongdoing, for example, when he describes a whistle-blower as a traitor or a spy. The only way you can conceive of someone who reports wrongdoing as committing a crime against the country is if you believe you are synonymous with the country, that any report of wrongdoing against the president, to the person of the president, is a treasonous act."
Protesters near Capitol hold up signs on witnesses and GOP votes
Senator speaks to areas where Trump may have waived privilege
ANALYSIS: Witnesses are fine, as long as there’s no venue
In the House, the White House counsel’s office argued that impeachment was a sham and President Trump refused to participate in the investigation in any way. He issued a blanket prohibition on his aides complying with requests for testimony and his agencies producing documents.
In federal court, his Justice Department has argued the House does not have standing to pursue subpoenas.
In the Senate, White House lawyers are currently arguing the House should have interviewed witnesses or gone to court to force them to testify. The House did both, only to face opposition from the administration.
“There’s a proper way of doing things and an upside-down way of doing things,” deputy White House counsel Patrick Philbin said Wednesday in advising the Senate that it is not the right venue for witnesses either.
Dem. senator asks if Roberts has authority to rule on witnesses, executive privilege
A recent question from Sen. Tom Carper, D-Del., aimed at the House managers, touched on Chief Justice John Robert's ability to help resolve issues regarding witnesses in an impeachment trial in the Senate.
"Some have claimed that subpoenaing witnesses or documents would unnecessarily prolong this trial. Isn't it true that depositions of the three witnesses in the Clinton trial were completed in only one day each? And isn't it true that the chief justice as presiding officer in this trial has the authority to resolve any claims of privilege or other witness issues without any delay?" Carper asked in a question read by Roberts.
"Mr. Chief Justice, the answer is yes," said Rep. Hakeem Jeffries, D-N.Y.
Roberts could in theory break a tie among senators on the issue of calling witnesses, legal experts have said.
Some experts have also said that Roberts has the authority to make rulings that pertain to executive privilege.
Asked to correct 'falsehoods' from White House lawyers, Lofgren contests several of their major points
Sen. Debbie Stabenow, D-Mich., asked the House managers if they “care to correct the record on any falsehoods or mischaracterizations in the White House's opening arguments?"
Rep. Zoe Lofgren, D-Calif., said in response that Trump’s defense team argued six facts and that “all six of those so-called facts are incorrect.”
Among them, Lofgren said, were the defense’s claim that nothing improper occurred on the July 25 call between Trump and Zelenskiy — a claim she said was disproved by “all of this evidence” presented by the House managers “that makes us understand that phone call even more clearly.”
Another item Lofgren mention was the claim by Trump’s defense that Zelenskiy “never felt pressured” to open the investigations desired by Trump.
“Of course they didn’t say that publicly,” Lofgren said. But she pointed out that Zelenskiy had said that he didn’t want to be involved in U.S. domestic politics and that he “resisted announcing the investigations.”
Another claim Lofgren contested was the claim made by the defense that “Ukraine didn’t know Trump was withholding the security assistance.”
“Many have contested that,” she said.
Dershowitz says a quid pro quo in Trump's political interest is fine and not impeachable
Alan Dershowitz argued that a quid pro quo involving a president's political benefit was fine because all presidents believe their elections are in the public's interest.
Essentially, if Trump withheld nearly $400 million in aid to pressure Ukraine into announcing investigations of Democrats to help his campaign, that's fine because Trump thinks his election is to the country's benefit.
"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.
Dershowitz said there were three possible motives for a quid pro quo in foreign policy: the first is the public interest; the second, personal political interest; and the third, personal financial interest.
In the end, only the latter instance is corrupt, he said.
"Every public official I know believes that his election is in the public interest," Dershowitz said.
Schiff was given the chance to respond to Dershowitz's argument, one he said he thought was providing "carte blanche" for such quid pro quos in the future. The lead House manager used a hypothetical scenario to make his point. What if former President Barack Obama told Russia that he would withhold aid to Ukraine only if they launched an investigation into his 2012 Republican challenger, Mitt Romney.
"Do any of us have any question that Barack Obama would be impeached for that conduct?" he asked.
White House may have little chance of blocking Bolton testimony
If the Senate voted to hear John Bolton's testimony during the impeachment trial of President Donald Trump, the White House would face long odds in trying to get a court to prevent it.
The president has already suggested Bolton's testimony might violate executive privilege.
"The problem with John is that it's a national security problem," Trump said last week in comments in Davos, Switzerland. "John, he knows some of my thoughts, he knows what I think about leaders. What happens if he reveals what I think about a certain leader and it's not very positive, and then I have to deal on behalf of the country? It's going to be very hard, it's going to make the job very hard."
The first challenge for the White House is a procedural one. Without an order from a court blocking Bolton from testifying, he's free to do whatever he wants. That's the opposite of the way these disputes normally play out, when administration officials are prevented by the White House from appearing before Congress unless a court orders them to do so.