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On the first day of the Senate impeachment trial, President Trump’s lawyers were caught off-guard and unprepared.
White House counsel Pat Cipollone and a crew of several other lawyers for the president arrived for their first day of the trial, apparently expecting things to start off slowly with sleepy arguments over the rules for the trial. Opening arguments were not expected until Wednesday.
Cipollone was granted an hour to speak a few minutes after Chief Justice John Roberts entered the Senate chamber and the trial began in earnest. He used only three of those minutes. He spoke in a halting voice and said little of substance, simply asserting that Trump “has done absolutely nothing wrong.” And then he sat down, yielding the floor to the lead House impeachment manager, Rep. Adam Schiff, D-Calif.
Schiff ambushed Cipollone and Trump’s team of lawyers, launching immediately into a passionate, comprehensive and piercing set of arguments about why the House impeached the president in December for withholding $400 million in military aid to Ukraine to pressure its government to announce an investigation into a political rival, former Vice President Joe Biden.
Early in what ended up being a 50-minute presentation by Schiff, the mood in the Senate chamber was sedate. Sen. Tom Cotton, R-Ark., held up his watch in front of his face, winding it to the correct time.
But it quickly became apparent that Schiff was not there merely to argue about the rules; he also intended to take the Senate, and the nation, on a 360-degree tour of the case for impeachment at a moment when public attention was at one of its highest points. Schiff warned the chamber that the assertion by Trump’s lawyers that he could not be impeached even if the House were able to prove its case “makes him a monarch,” the very thing America’s founders wrote the Constitution to prevent against.
“Our system of checks and balances will be broken. Our presidents will be accountable to no one” if the Senate does not conduct a fair trial that hears from witnesses and includes White House documents, Schiff said.
And Schiff appealed to the 53 Republican senators to go against Senate Majority Leader Mitch McConnell, who is aiming to prevent the trial from hearing witness testimony and demanding White House documents until the trial is effectively over.
“It’s completely backwards. Trial first, then evidence,” Schiff said. Later he referred to this process as “ass-backwards.”
He told the Republican senators that their votes Tuesday — on whether to grant a request by Democrats to hear from witnesses and to subpoena White House documents at the beginning of the trial rather than toward the end — were just as important as their votes on whether Trump is guilty or innocent of the charges brought against him by the House: one for abuse of power, and a second for obstructing Congress.
“They say Leader McConnell is a very good vote counter. Nonetheless, I hope he is wrong,” Schiff said, referring to reports that McConnell had 51 Republican votes to approve rules that put off witnesses and documents until after opening arguments. Schiff asserted that “the opening statements are the trial.”
“You have all now sworn an oath,” Schiff told the senators. “That oath binds you.”
As Schiff spoke, Republican senators began to fidget. Sen. James Risch, R-Idaho, chewed on a pen. Sen. Lindsey Graham, R-S.C., picked at his right pinkie cuticle. A Senate Republican aide seated next to Sen. John Thune, R-S.D., was visibly flushed, his face a brilliant shade of red. He and Laura Dove, a top aide to McConnell, began furiously scribbling notes on their legal pads. Cipollone, who was seated at a table to Schiff’s left, facing the Republican senators, flipped through a black binder, while another Trump attorney seated to his left, Jay Sekulow, wrote down notes.
By this point, Schiff was making his way through the precedents of impeachment trials throughout American history, drawing on the record of the 1868 Senate trial of President Andrew Johnson, and on the records of impeachment trials of federal judges, to drive home his point that the “standard” for impeachment trials is to hear from witnesses and to require relevant documentation.
“The president must not be allowed to mislead you,” Schiff told the Senate. “The truth will come out. The question is, will it come out now?”
When Schiff relented, Justice Roberts noted to Cipollone that he had 57 minutes available. The president’s lawyer sent Sekulow, an outside lawyer for Trump who heads the American Center for Law & Justice, up to respond.
Sekulow spoke with a big, booming voice and immediately began ripping into Schiff, attacking him and the House impeachment inquiry process that Schiff presided over as chairman of the House Intelligence Committee.
But Sekulow’s arguments were jumbled, disconnected from one another, and sometimes completely inaccurate, such as his statement that Schiff was arguing that the president cannot claim executive privilege. Sekulow did not actually address most of Schiff’s arguments, choosing rather to complain about Democratic animus for Trump and about actions taken by the FBI in investigating the Trump campaign after the 2016 presidential election.
As for the actual arguments over impeachment, Sekulow said merely that he and Trump’s legal team would make their case “in the days ahead.”
Cipollone then got up and spoke for several minutes, and in contrast to his earlier presentation, he was louder and more bombastic this time, referring to Schiff’s arguments repeatedly as “ridiculous” and slamming the lectern with his right index finger.
“It’s very difficult to sit there and listen to Mr. Schiff,” Cipollone said. “It’s too much to listen to almost.”
But Cipollone, too, relied more on attacking Schiff and his leadership of the inquiry — also with false statements — than he did on responding to substantive arguments. Cipollone said “not even Mr. Schiff’s Republican colleagues were allowed” into the impeachment inquiry depositions. This was untrue, since over 100 Republican members of the House were allowed into the depositions.
“So what are we doing here?” Cipollone said. He was referring to the trial but could have just as well been referring to himself and his legal team.
Schiff responded with a point-by-point rebuttal of Cipollone’s grab bag of arguments.
To the argument that the House should have gone through the courts to obtain documents and witnesses blocked by the White House, Schiff pointed out that Trump’s lawyers were arguing in a case involving former White House counsel Don McGahn that the House is not entitled to those items through the courts.
To the argument that a former White House adviser, Charles Kupperman, has said he cannot speak to Congress because of national security concerns, Schiff pointed out that John Bolton, Trump’s former national security adviser and Kupperman’s former boss, has said there is no need to go to court and that he will testify if called by the Senate.
Schiff also suggested to the senators that when Cipollone and Sekulow attacked him, they should ask themselves what Trump’s lawyers were trying to distract from, and “why don’t they have a better argument to make on the merits?”
“I’ll tell you why we’re here,” Schiff said, rattling off once again the basic facts of the case against the president.
Senate Minority Leader Chuck Schumer proposed an amendment to the rules to subpoena documents from the White House. Rep. Zoe Lofgren, D-Calif., who was a congressional staffer during the 1974 congressional impeachment proceedings against President Richard Nixon, argued for 40 minutes in favor of the amendment.
Patrick F. Philbin, a Cipollone deputy in the White House counsel’s office, spoke for 15 minutes against the amendment.
Schiff closed out the first round of skirmishes with under 10 minutes of what were essentially closing arguments. “We are ready to call our witnesses. The question is, will you let us?” he told the Senate.
“Don’t blind yourself to the evidence,” Schiff said.
There was a sign, at that moment, that Schiff’s forcefulness and litigator’s skill might not have been enough to offset the partisan view that some Republican senators have of him, due to his prominence on cable TV and in some of the more political skirmishes over the past few years on the House Intelligence Committee.
Schiff said, “I yield back.” Sen. Pat Roberts, R-Kan., said loud enough to be heard in the press gallery, “Thank you,” and flashed an irritated look. Graham, the South Carolina Republican and a close ally of Trump’s, looked over at Roberts and laughed.
Moments later McConnell moved to “table,” or squash, the Schumer amendment. There was some suspense in the chamber, but there were no surprises. Every Republican senator voted against Schumer’s proposal, and every Democrat voted for it. A handful of additional votes on subsequent Schumer amendments were expected to play out in a similar fashion into the evening.
It was likely that McConnell had proposed the hard-line package that he revealed Monday night as a way of negotiating with the Republican senators who have said they are open to calling witnesses and subpoenaing documents. These Republicans might have been persuaded by Schiff’s arguments, but likely had already promised the Republican leader their support after he softened the rules.
But Sen. Susan Collins, R-Maine, who is one of those moderate Republicans and who is also up for reelection this fall, immediately sent a statement to the press after her vote for McConnell’s rules package.
“While I need to hear the case argued and the questions answered, I anticipate that I would conclude that having additional information would be helpful. It is likely that I would support a motion to subpoena witnesses at that point in the trial just as I did in 1999,” Collins said.
Schiff’s rhetoric could not counter McConnell’s behind-the-scenes maneuvering on the first day of the trial, but the Democratic impeachment manager did his best to lay a foundation for the vote to come, likely next week, on whether to allow witnesses and to subpoena documents in the trial.
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