However the Senate trial turns out, it is immensely gratifying to know that the see-no-evil, hear-no-evil, speak-no-evil Republicans were pinned in their seats for two hours and 20 minutes with only flat water, bubbly water, or milk to drink on Wednesday afternoon as House manager Adam Schiff, with the skill of a practiced trial lawyer, outlined the case against Donald John Trump.
He may be “shifty Schiff” to Donald Trump and his allies, but any fair-minded impeachment watcher will tell you that Schiff did a masterful job detailing the building blocks of Trump’s corruption with regard to Ukraine, the lies he told along the way, the cast of enablers who sought to hide the truth—and finally, the public servants who came forward to testify about what they witnessed.
Schiff presented enough evidence to rebut the White House argument that the House managers had a weak case. He put to bed any notion of the quick dismissal GOP leader McConnell might have once envisioned. But for all the Democrats’ success and skill in presenting their case, getting witnesses and documents that would totally nail Trump remain just out of reach.
Four Republicans would have to break ranks and side with the Democrats, and even the usual suspects—Mitt Romney, Susan Collins, Lisa Murkowski—are not sure bets.
Harvard law professor Alan Dershowitz, a member of Trump’s legal team, cautioned against calling witnesses like former National Security Adviser John Bolton because the White House would invoke executive privilege to prevent him from testifying. That could take weeks, maybe months, for the courts to resolve, Dershowitz said.
Schiff points out that Trump often cites executive privilege but has never invoked it. Why? Schiff suggests that maybe it’s because he doesn’t want to cite particular documents or passages within documents, which would be required. Otherwise, Schiff leaves it up to the viewer’s imagination why Trump waves around executive privilege but stops short of claiming it.
“Until now, it’s been invoked as a generalized mobster threat,” says Bill Galston, a senior fellow in the governance program at the Brookings Institution. It will come into play only if the Senate votes to call witnesses, and Trump wants to block those witnesses. “Then, if the White House invokes executive privilege, we’re in a new situation,” says Galston.
“He’s probably being told by his lawyers that once he invokes executive privilege, he will set in motion a process he can no longer control,” Galston told the Daily Beast. “If I were his lawyer, I would tell him not to play this card until he had to.”
The reason? Trump couldn’t count on the courts to dither away weeks and months. His claim of executive immunity would likely get fast-tracked to the Supreme Court, which Trump thinks of as his court. Chief Justice Roberts might have a different view after listening to the evidence against Trump.
If Republicans decide to go for witnesses, with Bolton and budget chief Mick Mulvaney topping the Democrats’ wish list, Trump would immediately move to silence them under a blanket of executive privilege. Ultimately the Supreme Court would be called upon to test Trump’s claim of executive privilege and whether it would hold up, unlike President Nixon’s effort to protect the Watergate tapes.
There are a couple of key differences. The Nixon tapes involved conversations with already indicted administration figures, so there was criminal behavior. This made it easier for the Supreme Court to decide that executive privilege didn’t apply. But if Trump’s claim reaches the Supreme Court, it would test whether executive privilege applies in the absence of a crime.
It appears as if Schiff is trying to goad Trump into invoking executive privilege. But Democrats worry that today’s court could narrowly side with Trump on executive power.
If there are not enough Republicans to join with the Democrats to compel witnesses, Trump doesn’t risk anything in brandishing executive privilege as a sword to dissuade potential testimony that could be damaging.
After each side presents its arguments, and the senators get a chance to have Chief Justice Roberts pose their questions, there will be a vote next week as the trial concludes to determine whether witnesses will be called.
“That’s the ballgame,” says Galston, “and everything else is a kabuki dance.”
Bolton is at the center of the kabuki dance with a much ballyhooed book he is writing that he touts rather shamelessly as a tell-all about his time at the White House and the “drug deal” that he warned against while serving as Trump’s national security adviser. He has eyewitness information that McConnell, acting on Trump’s behalf, doesn’t want to risk revealing to the voting public.
From McConnell’s perspective, better to shut down the trial next week if he has the votes to do that than give Bolton a platform. It’s not about executive privilege; it’s about executive power, and keeping it. No one in all the hours of bloviating has said word one about what Bolton might say in his forthcoming book that could undermine the confidentiality of the executive privilege that Trump finds so sacred.
As someone who held a top-security clearance, Bolton is subject to what’s called “pre-publication review” by intelligence agencies, including the White House. The rules are a bit murkier if he’s responding to a subpoena. But McConnell has a plan for that. Any witnesses that are called would be deposed privately, and the majority party would decide what is released publicly.
Given the unshakable wall of GOP support in the Senate, Trump is certain to be acquitted. But that acquittal will carry an asterisk that could prove damaging in November if Republicans vote against allowing witnesses, when polls show more than 70 percent of the country, including 64 percent of Republicans, want to hear from witnesses.