Throughout the impeachment trial of Donald J. Trump, there has been a contrast between the formal arguments of the two parties and the underlying issue of whether additional evidence blocked by the White House during the House proceedings would be admitted by the Senate. In particular, former Trump national-security adviser and conservative icon John Bolton’s apparent willingness to testify has been the key pressure point, and the contingency Mitch McConnell and the White House have sought to head off, recognizing that four Republican senators joining the 47 Democratic senators could make it happen.
On the eve of the first full day of the president’s defense presentation, accounts of what Bolton has alleged in his upcoming book raised the tension between the official proceedings and the intrigue in the background to a taut high wire. By plan or circumstance, the tone of Trump’s defense became sharper and more aggressive, ranging from the whataboutism of a major attack on the Bidens to a regularly repeated claim that no matter what Bolton or anyone else has to say, the impeachment effort is tainted fatally by the evil intent and flawed proceedings of House Democrats. As Politico suggested, the Bolton “bombshell” had a big impact on the debate behind the debate:
Within just 24 hours, White House officials went from feeling self-assured about the speediness of the Senate impeachment trial to scrambling to squash John Bolton’s bombshell allegation.
Now, White House officials and Trump lawyers are preparing for the possibility that the Senate impeachment trial will summon witnesses — dragging out the trial for days or weeks, cutting into plans for the State of the Union address and delaying Trump’s pivot to his reelection campaign….
Calling witnesses would make the trial much more unpredictable for the White House and Republican Senate leadership, which was caught by surprise by the revelations in Bolton’s book manuscript. The book draft says Trump told Bolton to keep withholding military aid to Ukraine until officials there agreed to investigate his political rivals, a statement that undercuts a key element of the Trump’s [sic] legal defense.
It became more and more apparent throughout the day that Senators Collins and Romney were pretty much on board with the idea of calling Bolton, and rumors abounded that others might eventually follow. One GOP senator, Pat Toomey, revived the idea of a deal to allow House Democrats to call Bolton and then let the president’s team call a witness of its own — upsetting Mitch McConnell’s plan for a brief trial with no witnesses.
Presumably, McConnell & Co. worked hard today to put the genie back into the bottle — perhaps fighting a two-front war against Trump partisans who relished the idea of publicly dragging a Biden or two through the mud. In the meantime, a sizable number of Trump attorneys made arguments that suggested there is no factual situation that would save the impeachment-and-removal effort from its terrifying character as a partisan coup.
Trump’s two celebrity attorneys bookended the argument with particularly categorical claims that Trump simply could not be removed from office under the articles of impeachment the House adopted. Ken Starr, who probably had more to do with Bill Clinton’s impeachment than any other individual, closely approached but did not offer an apology for that effort in promoting the “Rodino Rules” (named for Peter Rodino, the House Judiciary Committee chairman during the Nixon impeachment proceedings) that, among other things, ruled out any proceedings that aren’t bipartisan. Alan Dershowitz, like other Trump attorneys, claimed that any impeachment that did not allege either violation of a criminal statute or misconduct involving treason and bribery could not be valid (a decidedly shaky argument, according to most legal analysts, as Dershowitz himself acknowledged). Starr and Dershowitz (and their colleagues throughout the day) were conveniently arguing that Bolton couldn’t repair a constitutionally flawed effort to remove Trump from office no matter what he or Trump said to each other. Dershowitz was explicit about the irrelevance of any Bolton testimony.
Between these two efforts to wave off the need for additional evidence, Team Trump (beginning with former Florida attorney general Pam Bondi) went after Joe and Hunter Biden and their alleged corruption. Ostensibly, the idea was to show how justified Trump was in pressuring Ukraine to clean up its act. More subtly, it was a warning to Senate Democrats that if they persist in promoting a long trial with witnesses, there will be collateral damage. This dual purpose was even more obvious in a presentation by Trump private attorney Eric Herschmann, who went after Barack Obama as being more complicit in abuses of power than is Trump. Herschmann even tried to put the spotlight on Mitt Romney to make it clear he had no reason to betray his party to side with Democrats, as Politico reported:
Herschmann played a clip of Obama debating Romney — then the GOP nominee for president — in 2012. In the clip, Obama mocked Romney for saying Russia was America’s top geopolitical foe. Herschmann made eye contact with Romney, whose seat is in the back corner of the chamber, several times while he repeatedly invoked his name. Romney visibly smirked while his colleagues turned to face him.
The shift in mood surrounding the trial has led Trump’s defense team to abandon earlier talk of giving up its right to another day of argument. Now it appears the key vote on witnesses will likely happen on Friday, after two days devoted to written questioning of the two sides by senators. But the backstage drama behind the drama in the Senate chamber may matter most.