Bolton impeachment testimony could be a test for Chief Justice Roberts

Jon Ward
Senior Political Correspondent

WASHINGTON — The issue of whether John Bolton or any other witnesses will testify in Donald Trump’s impeachment trial continued to linger Wednesday, as Democratic and Republican Senators spent the eighth day of the proceedings asking questions of the House managers and the president’s defense team.  

The biggest debate this week has been whether Bolton, Trump’s national security adviser until last September, would be called to testify after details of his book alleging direct knowledge of Trump’s pressure campaign on Ukraine came to light Sunday night.

Early in the day, during a short break from the proceedings, Senate Minority Leader Chuck Schumer, D-N.Y., reflected some pessimism about the chances of reaching the 51-vote threshold Democrats need to call witnesses.

 “It’s an uphill fight,” Schumer told reporters. “Is it more likely than not? Probably no.” He tried to put on a good face, adding that there was a “decent, good chance” of getting witnesses.

It also remains unclear whether Senate Majority Leader Mitch McConnell, R-Ky., has 51 votes to block witnesses. He will need one of three senators who appear most likely to vote in favor of witnesses to side with him: Sen. Mitt Romney, R-Utah, Sen. Susan Collins, R-Maine, and Sen. Lisa Murkowski, R-Alaska.

Chief Justice of the United States John Roberts. (Senate Television via AP)

If all three of those senators were to vote in favor of calling Bolton, it would likely produce a 50-50 tie. That could put Chief Justice John Roberts, who is presiding over the impeachment trial, in a position to decide the matter.  

Trump attorney Jay Sekulow lobbied the chief justice on Wednesday to stay out of the matter, arguing that “there is no historic precedent that would justify” such a ruling by him.

Lead impeachment manager Rep. Adam Schiff, D-Calif., has also lobbied the chief justice to weigh in, stating Friday night that “we have a perfectly good judge sitting behind me empowered by the rules of this body to resolve those disputes.”

Most observers of Roberts and his tenure as chief justice believe he would like to avoid making a substantive ruling, especially on a matter as politically fraught as the one of whether to call witnesses. If he declined to rule, any measure that ended in a tie would fail to pass.

Wednesday’s trial proceedings offered senators their first opportunity to ask questions, which they submitted in writing to the chief justice, who read them aloud.  

The format allowed senators to make partisan points and wage political attacks. At other times, however, the queries reflected the concerns of key senators.

Collins and Murkowski asked a joint question that indicated they are skeptical of claims made by Trump’s lawyer that the president asked Ukraine to announce an investigation of Joe Biden last year because he was interested in fighting corruption, rather than simply in an attempt to take down a political rival.

“Before Vice President Biden formally entered the 2020 presidential race in April 2019, did President Trump ever mention Joe or Hunter Biden in connection with corruption in Ukraine?” they asked.

White House deputy counsel Patrick Philbin. (Senate Television via AP)

Patrick Philbin, a Trump attorney, said he could not provide any evidence of such a statement by the president. That point has been key to Schiff and the impeachment managers’ argument that Trump’s interest in seeking Ukraine investigations into Biden constituted an abuse of power.

Widely viewed as a sober-minded, serious legislator, Sen. Rob Portman, R-Ohio, asked a question that offered a glimpse into his own thinking about how he’s likely to justify and explain his votes to beat back the Democratic push to remove Trump from office.

“Given that impeachment proceedings in the Senate are privileged in the Senate and largely prevent other work from taking place while they are ongoing, please address the implications of allowing the House to present an incomplete case to the Senate and request the Senate to seek testimony from additional witnesses,” Portman’s query stated.

Trump’s lawyers have repeatedly criticized House Democrats for bypassing lengthy court challenges to obtain documents and testimony from potential witnesses like Bolton. Schiff and the Democrats say that process could have taken years and they are trying to prevent Trump from cheating in the election this fall.

Philbin picked up Portman’s baton and ran with it, arguing that “whatever is accepted in this case becomes the new normal.” Earlier, Philbin had said that if “hurried, half-baked” impeachment inquiries in the House became the norm, it would become a more regular occurrence and the Senate would be “paralyzed” increasingly often.

Schiff, on the other hand, argued that rather than making impeachment too easy to carry out, the far more dangerous precedent would be to allow presidential abuse of power to go unchecked.

Schiff characterized the Trump team’s arguments as amounting to the notion that the president “can abuse his power in a corrupt way to help his reelection and you can’t do anything about it. … He’s allowed to do it.”

“The idea that the core offense that the Founders protected against — that core offense is abuse of power – is beyond the reach of Congress through impeachment, would have terrified the Founders,” an incredulous Schiff continued.

Trump’s legal team and Republican senators spent considerable time Wednesday trying to distract from the accusations against Trump. They accused Schiff of colluding with the whistleblower who started the inquiry into Trump’s pressure on Ukraine back in August. They accused former President Obama of committing his own abuses because he was in charge of the government when the FBI abused its wiretapping warrant process in surveilling a member of Trump’s presidential campaign in 2016.

Lead impeachment manager Adam Schiff. (J. Scott Applewhite/AP)

Sen. Ted Cruz, R-Texas, alleged that when Biden pressured Ukraine to fire its top prosecutor in December 2015, that prosecutor — Viktor Shokin — was actively investigating Burisma Holdings, a Ukrainian energy company that in 2014 had placed Biden’s son on its board.

However, a heavy preponderance of all available public information indicates that Cruz’s comments and questions perpetuated a falsehood. It is widely believed that Biden’s call for Shokin to be fired — which was the official position of the U.S. government as well as the European Union — was based on Shokin’s resistance to investigating Burisma and that when Shokin was fired it made legal action against the company more likely.

Schiff, meanwhile, gave his most extensive public comments to date on the whistleblower in an attempt to rebut Republican criticism. Last fall, the chairman of the House Intelligence Committee said that he had not heard from the person who registered the formal complaint with the inspector general of the intelligence community, but it was later reported that Schiff’s staff had been approached by the whistleblower before that person contacted the IG.

“I don’t know who the whistleblower is,” Schiff said Wednesday. “I haven’t met them or communicated with them in any way. The committee staff did not write the complaint or coach the whistleblower what to put in the complaint. The committee staff did not see the complaint before it was submitted to the inspector general.”

“The conspiracy theory … that the whistleblower colluded with the intel committee staff to hatch an impeachment inquiry is a complete and total fiction,” Schiff said.

He then gave an impassioned defense of his own staffers who have been publicly named and targeted with threats against their personal safety.

“My staff acted at all times with the most complete professionalism,” Schiff said. “It really grieves me to see them smeared.”

While most Senate Republicans seem cool to the idea of calling witnesses, some have suggested that if Bolton is allowed to testify, Schiff himself, or possibly the whistleblower, should be called as well.

With his own role in the trial becoming more visible, Roberts may yet help decide how to resolve that dispute.

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