Updated at 9:27 p.m. ET
President Trump’s lawyers tore into Democrats’ impeachment allegations on Monday with a legal and political pageant that culminated with a rejection of the relevance of new allegations from John Bolton.
Retired law professor Alan Dershowitz closed the day’s arguments with a stemwinder about what he called the constitutional weaknesses of the case against Trump.
The framers of the Constitution intended for the foundation of the law to be precisely defined crimes that could then be precisely enforced, he said — and no such crimes are alleged in the Trump matter.
Moreover, Dershowitz argued, the framers explicitly would have rejected the phrases in the articles of impeachment passed last month in the House. Any potential testimony by former national security adviser Bolton about what Trump told him is accordingly immaterial, Dershowitz said.
“If a president, any president, were to have done what the Times reported about the content of the Bolton manuscript, that would not constitute an impeachable offense,” he said. “Nothing in the Bolton revelations, even if true, would rise to the level of an abuse of power or an impeachable offense.”
The former Harvard professor told senators that the revolutionary generation that constructed the Constitution was particularly wary about the kind of partisan effort, as Dershowitz described it, that has idled Washington with the impeachment proceedings.
“It is inconceivable that the framers would have intended so politically loaded and promiscuously deployed a term as ‘abuse of power’ to be weaponized as a tool of impeachment,” he said. “It is precisely the kind of vague, open-ended and subjective term that the framers feared and rejected.”
Day two for the defense
Dershowitz’s remarks followed hours of presentations that mostly had avoided the topic agitating much of Washington outside the gilded walls of the Senate chamber.
A mustachio’d specter loomed over the Capitol dome — and the question senators are expected to face later this week about whether to admit new witnesses or evidence into the proceedings.
Bolton’s forthcoming book reportedly includes an account of Trump telling him that he intended to keep military assistance for Ukraine frozen until President Volodymyr Zelenskiy agreed to announce investigations that Trump wanted.
NPR has not reviewed the manuscript.
Democrats argue that Bolton’s account could bring vital new evidence of what they call Trump’s abuse of power, the basis for the ongoing impeachment proceedings.
Bolton has said he’d be willing to appear in the Senate trial if he receives a subpoena.
Four Republican senators would need to join with all the chamber’s Democrats in a vote, perhaps Friday, in order to authorize witnesses and identify which ones.
It isn’t clear whether sufficient support exists and if so, what witnesses Republicans might request if Democrats were to seek Bolton or others such as White House chief of staff Mick Mulvaney.
Until Dershowitz’s comments, Trump’s attorneys had focused closely on a legal defense of the president and then shifted into an impeachment of former Vice President Joe Biden and his son, Hunter.
Lawyer Jay Sekulow underscored one of the Trump team’s themes: The real motive driving Democrats’ impeachment is simple partisan animus.
He played TV footage of House Speaker Nancy Pelosi handing out the pens she’d used to sign the articles of impeachment to lawmakers including some of the managers presenting them to the Senate.
Former Justice Department independent counsel Ken Starr, who investigated President Bill Clinton in the 1990s, also took the dais.
In a lengthy address that combined history, legal theory and, ultimately, recent events, Starr told senators that what he called the precedents forming the “common law” of impeachment show how short the current proceedings fall relative to past practices.
Starr blamed a “runaway House” that he said had been warned all along: “Don’t do it. Don’t do it that way.”
The Biden impeachment
As the hours wore on, Trump’s defense team moved further afield from a defense of the president.
They put on a separate defense of another lawyer, Rudy Giuliani, and as they’d hinted, broadened their presentations into the family Biden.
Former Florida Attorney General Pam Bondi recapitulated a story line that has embarrassed Biden: His son, Hunter, was paid by a Ukrainian gas company at the time when the then-vice president was handling Ukrainian affairs for the U.S. government.
Although the Bidens haven’t been charged with any criminal wrongdoing, their situation was the subject of one of the investigations Trump wanted from Ukraine’s government.
Bondi and another lawyer, Eric Herschmann, outlined the reasons why they argued such an investigation might be appropriate.
“There’s no question that any rational person would like to understand what happened,” Herschmann said.
At least one Republican welcomed the airing of the Biden-Ukraine story on the stage provided by the impeachment trial: Sen. Joni Ernst of Iowa reminded reporters about the first primary votes that are expected to be cast soon.
“The Iowa caucuses are this next Monday evening,” she said. “And I’m really interested to see how this discussion today informs and influences the Iowa caucus voters, the Democratic caucus goers. Will they be supporting Vice President Biden at this point?”
Bolton from the blue
The impeachment proceedings were jangled by a report in The New York Times on Sunday that Bolton’s forthcoming book would strengthen Democrats’ case. The Times followed with another story on Monday even as Dershowitz was speaking.
The coverage revived discussions about whether Bolton or other witnesses might appear in the proceedings — something Majority Leader Mitch McConnell, R-Ky., and Republicans batted down early but which is set to come up again later this week.
Minority Leader Chuck Schumer, D-N.Y., and the House impeachment managers called for Bolton to appear. But Trump’s defenders outside the Senate, including Rep. Mark Meadows, R-N.C., said that even if that were to happen, it wouldn’t hurt Trump.
“The facts don’t change,” Meadows said.
Trump released the military assistance frozen for Ukraine in 2019 and got no announcement of an investigation, and nothing Bolton could say would alter that, Meadows said.
When the whip comes down
Republicans’ majority likely means Trump faces no danger of being removed from office.
But the small number of Republicans who’d need to join Democrats to authorize witnesses — four — may make that, at least, potentially more likely. That would give Democrats a fact witness and Republicans the ability to say they’d had a meaningful trial for Trump.
So a whirlpool of speculation now churns over who might join that notional gang of four.
Sen. Mitt Romney, R-Utah, has said he wants Bolton to testify. Sens. Susan Collins, R-Maine and Lisa Murkowski, R-Alaska, are seen as other possible joiners.
Are there others? The Washington Post reported on Monday that Sen. Pat Toomey, R-Pa., has proposed a “one-for-one” trade in which Republicans might agree to Bolton in exchange for someone else. That suggests Toomey’s vote might also be in play.
Sen. Mike Rounds, R-S.D., told reporters a notional swap “was discussed” during Monday’s Republican lunch “but there didn’t seem to be much support for it. Not at this point.”
Maine’s other senator, Independent Angus King, views the situation from outside because he caucuses with Democrats. But King told NPR on Monday that he thought there could be from 5 to 10 Republicans who’d ultimately go along with a vote for witnesses.
“There’s some indication that [Bolton] has information that bears directly on the heart of the case,” King said. “To willfully say, ‘We don’t want to hear that,’ to me, basically just undermines the idea that this is a real trial.”
NPR reporters Brakkton Booker and Lexie Schapitl contributed to this report.