With several Democrats openly floating the possibility they might vote to acquit President Trump, congressional Republicans are planning an aggressive “Plan B” strategy in the event some Republicans break off and demand additional witnesses in the president’s impeachment trial, Fox News has learned.
Senate Majority Leader Mitch McConnell privately said early Tuesday that he wasn’t sure Republicans could block an up-or-down vote on whether to call more witnesses. But later Tuesday night, a Senate leadership source told Fox News that Republicans were specifically assessing the viability of two alternative options.
One plan is to amend any resolution calling for a particular witness to also include a package of witnesses that wouldn’t win enough support in the Senate. For example, if the Democrats seek to call former National Security Advisor Bolton, Republicans might seek to question Hunter Biden or Rep. Adam Schiff, D-Calif., over his inconsistent statements concerning his panel’s contacts with the whistleblower.
“After listening to the Dems’ 20+ hours of argument and the rebuttal arguments from @realDonaldTrump, I’ve got lots of questions for the Dems,” tweeted Missouri GOP Sen. Josh Hawley on Tuesday. “Like this one: Why did Schiff lie about his contact with the ‘whistleblower’? More to come!”
The “package deal” proposal could afford moderate Republicans the political cover of voting in favor of witnesses, while ultimately rejecting a witness package. Any witness resolution would likely require four Republican defections. Republicans hold a 53-47 majority in the Senate, and in the event of a 50-50 tie, Chief Justice John Roberts is highly likely to abstain.
The Federalist senior editor and Fox News contributor Mollie Hemingway observed that in the House impeachment proceedings, Democrats allowed themselves to call significantly more witnesses than they afforded to their Republican colleagues — raising the possibility Republicans could reasonably insist on an equally favorable “ratio” in the Senate trial when putting together a prospective package of witnesses.
Another option, the congressional leadership source told Fox News, is for the White House to exert executive privilege to block witnesses, including Bolton.
That might end up in a court battle, and could prove dicey if Bolton opts to defy the White House’s assertion of privilege.
Meanwhile, Politico reported on Tuesday that Democrats were apparently also divided. Moderate Democratic Sens. Joe Manchin, Doug Jones, and Kyrsten Sinema were all weighing votes to acquit Trump on at least one of the two articles of impeachment, the outlet reported.
“I know it’s hard to believe that. But I really am [undecided]. But I have not made a final decision. Every day, I hear something, I think ‘this is compelling, that’s compelling,’” Manchin said. “Everyone’s struggling a little bit.”
GOP senators were similarly all over the map on Tuesday as Trump’s defense team called Bolton’s new manuscript “inadmissible” and warned against opening the door to new wild-card information in the ongoing trial.
Trump told Bolton in August, according to a transcript of Bolton’s forthcoming book reviewed by The New York Times Times, “that he wanted to continue freezing $391 million in security assistance to Ukraine until officials there helped with investigations into Democrats including the Bidens.”
Louisiana GOP Sen. Bill Cassidy denied reports saying that he wanted to call more witnesses by simply saying that he wanted to wait until the end of the written question period of the trial to decide — leading Sean Davis, the co-founder of The Federalist, to argue that Cassidy was issuing a “Romney-esque non-denial.”
Meanwhile, Sen. James Lankford, R-Okla., called for Bolton’s unpublished manuscript to be made available for senators to read in a classified Sensitive Compartmented Information Facility (SCIF) to understand what Bolton was alleging. His proposal got an ally in influential Sen. Lindsey Graham, R-S.C., who called the idea a “reasonable solution.”
Some senators suggested that Bolton just spill the beans in a news conference on the sidelines of the impeachment trial — a proposal that could lead to legal questions concerning both executive privilege and classified information.
Bolton’s manuscript is currently in a “pre-publication review” at the National Security Council, which functions as the White House’s national security forum, is standard for any former government officials who held security clearances and publicly write or speak publicly about their official work. The review typically would focus on ferreting out any classified or sensitive material in advance of publication and could take from days to months.
“The Wall Street Journal has called for John to just come forward — just tell the public what you know,” Sen. Ron Johnson, R-Wis., said. “I think that actually [would] be a smart thing. I’d encourage John to do that without involving the trial.”
Meanwhile, Harvard Law School Professor Alan Dershowitz, who delivered a spirited constitutional defense of the president on Monday night in the impeachment trial, took aim at Elizabeth Warren after she said she couldn’t follow Dershowitz’s argument.
“He is a criminal law professor who stood in the well of the Senate and talked about how law never inquires into intent and that we should not be using the president’s intent as part of understanding impeachment,” Warren said Monday. “Criminal law is all about intent. Mens rea is the heart of criminal law. That’s the very basis of it. So it makes his whole presentation just nonsensical. I truly could not follow it.”
Dershowitz replied on Twitter that Warren, who formerly taught at Harvard Law School, “doesn’t understand the law” and had “willfully mischaracterized” his argument.
“If Warren knew anything about criminal law she would understand the distinction between motives – which are not elements of crime—and intent, which is. It’s the responsibility of presidential candidates to have a better understanding of the law,” Dershowitz said.
On Monday, flatly turned toward House impeachment managers and declared they had picked “dangerous” and “wrong” charges against the president — noting that neither “abuse of power” nor “obstruction of Congress” was remotely close to an impeachable offense as the framers had intended.
In a dramatic primetime moment, the liberal constitutional law scholar reiterated that although he voted for Hillary Clinton, he could not find constitutional justification for the impeachment of a president for non-criminal conduct, or conduct that was not at least “akin” to defined criminal conduct.
“I’m sorry, House managers, you just picked the wrong criteria. You picked the most dangerous possible criteria to serve as a precedent for how we supervise and oversee future presidents,” Dershowitz told the House Democrats, including head House impeachment manager Rep. Adam Schiff, D-Calif.
He said that “all future presidents who serve with opposing legislative majorities” now face the “realistic threat” of enduring “vague charges of abuse or obstruction,” and added that a “long list” of presidents have previously been accused of “abuse of power” in various contexts without being formally impeached.
The list included George Washington, who refused to turn over documents related to the Jay Treaty; John Adams, who signed and enforced the so-called “Alien and Sedition Acts”; Thomas Jefferson, who flat-out purchased Louisiana without any kind of congressional authorization whatosever; John Tyler, who notoriously used and abused the veto power; James Polk, who allegedly disregarded the Constitution and usurped the role of Congress; and Abraham Lincoln, who suspended habeas corpus during the Civil War. Ronald Reagan, George H.W. Bush, and others would also probably face impeachment using the Democrats’ rules, Dershowitz said.
“Abuse of power,” he argued, has been a “promiscuously deployed” and “vague” term throughout history. It should remain a merely “political weapon” fit for “campaign rhetoric,” Dershowitz said, as it has no standard definition nor meaningful constitutional relevance.
Dershowitz then said he was “nonpartisan” in his application of the Constitution, and would make the same arguments against such an “unconstitutional impeachment” if Hillary Clinton were on trial — passing what he called the “shoe on the other foot” test.
“Purely non-criminal conduct such as abuse of power and obstruction of Congress are outside the range of impeachable offenses,” Dershowitz said.
Trump’s lawyers wrapped up their opening arguments early on Tuesday. Starting on Wednesday, Democrats and Republicans will alternate in posing their questions to the House Democratic impeachment managers and Trump’s legal team. Questions will be in writing, submitted to Roberts and read aloud. Senators do not pose the questions themselves. They must sign the questions, which may come from a group of senators or an individual senator.
Fox News is told to expect between 10 and 12 questions per side before a recess. There is no time clock as to how long counsel for both sides has to respond, but Roberts said Tuesday that based on the 1999 impeachment trial precedent, both sides should try to limit their responses to five minutes.
At the same time, Roberts noted according to the Congressional Record from 1999, everyone laughed at that suggestion. Senators laughed on the floor again Tuesday when Roberts hinted at the unofficial time restriction.
There can be no challenge of given answers by counsel for either side.
Fox News’ Marisa Schultz, Chad Pergram, and Fox Business’ Hillary Vaughn, contributed to this report.