- Dahlia Lithwicksenior editor at Slate.com, where she is the senior legal correspondent and Supreme Court reporter. Dahlia also hosts the legal podcast Amicus.
During the opening day of oral arguments in the impeachment trial, President Trump was accused of abusing his office to “cheat an election.” House impeachment managers spent about eight hours on Wednesday laying out their case for why President Trump should be removed from office. The Senate trial comes a month after the House impeached Trump for withholding congressionally approved military aid to Ukraine as part of an effort to pressure the Ukrainian president to investigate Trump’s political rival, Democratic presidential candidate Joe Biden. While the impeachment trial was taking place in the Senate, President Trump was across the Atlantic at the World Economic Forum in Davos, where he tweeted more than 140 times and dismissed the impeachment trial as a hoax. Trump also appeared to boast about having withheld evidence from the impeachment process, saying, “We have all the material; they don’t have the material.” For more on the historic impeachment trial, we speak with Dahlia Lithwick, senior editor and Supreme Court reporter at Slate.com.
NERMEEN SHAIKH: In the first day of oral arguments in the historic impeachment trial of President Trump, Democratic lawmakers accused the president of abusing his power to “cheat an election.” House impeachment managers spent eight hours Wednesday laying out their case for why President Trump should be removed from office. Democrats will continue to argue their case today and tomorrow. The Senate trial comes a month after the House impeached Trump for withholding congressionally approved military aid to Ukraine as part of an effort to pressure the Ukrainian president to investigate Trump’s political rival, Democratic presidential candidate Joe Biden. Democratic Congressman Adam Schiff, the lead impeachment manager, outlined the case against President Trump.
REP. ADAM SCHIFF: A president has a right to hold a call with a foreign leader, yes. And he has a right to decide the time and location of a meeting with that leader, yes. And he has a right to withhold funding to that leader, should the law be followed and the purpose be just. But he does not, under our laws and under our Constitution, have a right to use the powers of his office to corruptly solicit foreign aid, prohibited foreign aid, in his re-election. He does not. He does not have the right to withhold official presidential acts to secure that assistance, and he certainly does not have the right to undermine our elections and place our security at risk for his own personal benefit. No president, Republican or Democrat, can be permitted to do that.
AMY GOODMAN: The House Intelligence chair and lead house manager, Congressman Adam Schiff, went on to warn that President Trump’s actions put the country on what he described as the “road towards tyranny.”
REP. ADAM SCHIFF: When a leader takes the reins of the highest office in our land and uses that awesome power to solicit the help of a foreign country to gain an unfair advantage in our free and fair elections, we all, Democrats and Republicans alike, must ask ourselves whether our loyalty is to our party or whether it is to our Constitution. If we say that we will align ourselves with that leader, allowing our sense of duty to be usurped by an absolute executive, that is not democracy. It is not even factionalism. It is a step on the road towards tyranny.
NERMEEN SHAIKH: While the impeachment trial was taking place in the Senate, President Trump was across the Atlantic at the World Economic Forum in Davos, where he tweeted more than 140 times — a new record for him as president. At a press conference in Davos, Trump dismissed the impeachment trial as a hoax.
PRESIDENT DONALD TRUMP: We’re doing very well. I got to watch enough. I thought our team did a very good job. But honestly, we have all the material; they don’t have the material.
AMY GOODMAN: After President Trump spoke, one of the House impeachment managers, Val Demings, tweeted, “The second article of impeachment was for obstruction of Congress: covering up witnesses and documents from the American people. This morning the President not only confessed to it, he bragged about it,” she tweeted.
We’re joined now by Dahlia Lithwick, senior editor at Slate.com, where she’s their senior legal correspondent and Supreme Court reporter.
Dahlia, it’s great to have you back. Talk about the significance of what Trump admitted yesterday, and then, overall, talk about this opening day of oral arguments in the Senate.
DAHLIA LITHWICK: Yeah, it’s such an amazing moment, Amy, where you actually have the reason that everything is playing out as it is in the Senate is because of that second charge, that obstruction charge. So, the reason we don’t have witnesses testifying for the first impeachment trial in history, the reason we don’t have the documents that were sought, including some documents that now really are owed, all of that is because the White House utterly and completely obstructed the inquiry in the House. And so, to have the president then crowing about it overseas — you know, “We have everything; they have nothing” — it really is like quite an astonishing moment we’re in.
And then, you know, I think the response, the Republicans have been kind of coordinating their talking point. And their response to all of the events of the last two days in the Senate is to say, “This is boring. We’re not seeing anything new.” So, it’s quite an amazing piece of brazenness.
I think, overwhelmingly, what you’re seeing is what I think we all expected, which is brick-by-brick laying out of the case. Everything that was established in the House impeachment investigation, everything that was established in the Lev Parnas document dump for last week is simply being laid out very, very systematically by one impeachment manager after another. And they’re just trying to reconstruct and assemble the story of these two articles, both the abuse of power that you described and the obstruction. And they’re doing it over these three long eight-hour days in the Senate, with the hopes that senators who are hearing it for the very first time, some of them, might be moved.
AMY GOODMAN: And, Dahlia, if you can tell us what that is, for the very first time? If you can, in a nutshell, tell us what they are alleging and what they have charged the president with, elaborating on those articles of impeachment?
DAHLIA LITHWICK: I mean, in a nutshell, the two articles are, one, this use — abuse of presidential power, the quid pro quo that Adam Schiff was talking about right there, where both a visit for Zelensky and aid to Ukraine were withheld by this president and Mick Mulvaney pending a promise that the president of Ukraine would go on television and announce that he was opening an investigation into Hunter Biden, Burisma and Joe Biden. And that promise, that almost amounts to bribery, withholding of desperately sought aid by Ukraine in exchange for just political oppo research to benefit the president in the 2020 election — that’s the first.
And as Val Demings said in that tweet, the second is obstruction of Congress. This is an unprecedented moment. Even Nixon agreed to work with Congress when they investigated him for impeachment. Even Clinton extensively cooperated with the House impeachment. This is the first time we’ve seen a White House absolutely say, “We will not cooperate with any part of this. We want nothing to do with it. No witness may testify.” So that’s the second article, is obstruction of Congress, in effect, saying, “Come and get it.” And that is not how impeachment is meant to happen. So, the second article is the withholding of any, any possibility that congressional oversight could happen.
NERMEEN SHAIKH: Well, let’s go back to President Trump speaking in Davos.
PRESIDENT DONALD TRUMP: I would rather go the long way. I would rather interview Bolton. I would rather interview a lot of people. The problem with John is that it’s a national security problem. You know, you can’t have somebody who’s at national security. And if you think about it, John, he knows some of my thoughts. He knows what I think about leaders. What happens if he reveals what I think about a certain leader and it’s not very positive, and then I have to deal on behalf of the country? It’s going to be very hard. It’s going to make the job very hard.
NERMEEN SHAIKH: So, that’s Trump speaking in Davos, Dahlia. So, could you talk about why — you’ve written about this — why Republicans are arguing that they can’t vote just yet on witnesses, and Trump in fact saying that he would like to hear from John Bolton and many others, and yet it would be a national security threat to do so?
DAHLIA LITHWICK: I would step back for one second and just flag that this is the same Donald Trump who said, “I will not let any of these people testify before the House, because the House process is compromised. It’s a witch hunt. But I will be happy to have them testify in the Senate.” Here we are at the Senate, and now they are also being — you know, the argument is, “Well, we have a problem. You know, we have to assert immunity. We have to assert privilege.” So, it’s part of the very, very consistent bait and switch, where there is a promise that “We are going to accommodate you down the road, we want this information to come out,” and then, once the context changes and presumably now they can come forward and testify, we’re told, “Oh, now there’s a new rationale for why he can’t testify in the Senate.”
I mean, I think that the constitutional claim that’s being made, and has been made throughout, which is absolute immunity, that no one who has ever served as an adviser to the president can be called to testify, certainly it’s an argument. It has never prevailed. It has never been seen as a legitimate constitutional claim to bar people from coming forward. Moreover, if you’re going to claim that certain things are privileged, the witness has to come forward and assert the privilege. So, we’re not even having that. We’re not even having witnesses come forward and say, “Well, I can talk about this, but not about this, and I have to stop here.” Even that hasn’t happened. We’re just getting an absolute blackout.
And so, for the president to say, “Oh, you know, I wish they could, but my hands are tied because of the law,” is another piece of kind of bait-and-switchery that we’ve been seeing all along. The endgame is going to be: find a reason to say at the end of the day, “We can’t have any witnesses, so you may as well vote to have no witnesses, because this whole thing was a hoax.”
AMY GOODMAN: And you also have, of course, President Trump saying, “I would love to go before the Senate,” just as he said he would of course speak to Robert Mueller, in the end not doing so and only answering written questions, or at least his lawyers answering those questions.
I wanted to go to Democratic presidential candidate Joe Biden, who said during a campaign stop in Iowa Wednesday that he would not participate in a witness swap as part of the Senate impeachment trial, Biden’s comments coming in response to a voter’s question. According to reports, Biden said, quote, “The reason I would not make the deal, the bottom line is, this is a constitutional issue. We’re not going to turn it into a farce or to some kind of political theater. They’re trying to do that. I want no part of that. I’m not going to play his game. The Senate job is now to try him. My job is to beat him.”
So, if you can talk about this issue of, what, that Senator Ted Cruz called a witness reciprocity, trading one — or, reciprocal witnesses, the whole issue of either Biden or his son, Hunter Biden, having to testify if Bolton does? And also, are Democrats putting all their eggs in one basket to get Bolton there? Who knows actually what the former national security adviser would say? Some say that Trump assassinated Soleimani for him, as a kind of bone to throw to this Iran hawk, Bolton, who, right after the assassination, tweeted, “This is what we’ve been working on for a long time.”
DAHLIA LITHWICK: I mean, I think, as to the reciprocity, maybe the best way to think about it, Amy, is to think about what we saw in the House during the House impeachment process, which was not a sort of sober consideration of these claims about Ukraine, a sober consideration of whether the president abused his power, but a whole lot of clown show about Hunter Biden and Burisma and counter — very, very much roundly debunked counterconspiracy claims about how, “Oh, it wasn’t Russia who intervened in the 2016 election. In fact, it was Ukraine.” All of that was being surfaced every day. And I think that Mitch McConnell has been really clear that that was not going to happen in the Senate, that the Senate was not going to be a place where a whole bunch of lunatic-fringe debunked conspiracy theories about Hunter Biden and Burisma were going to be played out again. And one of the reasons that Mark Meadows and Jim Jordan, who have been put on the president’s defense team but are not speaking in the well of the Senate, is that Mitch McConnell does not want this to turn into a circus. He wants it to be a sober, narrow consideration of these two articles. And I think when Ted Cruz was floating this reciprocity deal, it was very much sounding in the key of “Let’s just open the doors and bring in the clowns. Let’s really have this turn into a circus.” That’s not in Joe Biden’s interest, for the reasons you just heard. I don’t think it’s in Mitch McConnell’s interest, either, to have this be a place where every single wacky conspiracy theory that has ever appeared on Fox News is going to be surfaced. And so I think it was in both sides’ interests, in some ways, to shut it down.
As to the question of the Democrat witnesses, look, they want John Bolton, they want Mick Mulvaney, they want two advisers. They have not asked for everybody who was a material witness in this. But it does go to, I think, a really interesting problem the Democrats do have, because they’re simultaneously claiming, “Look, this is an open-and-shut case. It was made in the House. We have enough documentary evidence, we have enough witness testimony to end this right now. It’s clear he did it,” and also, “We want more.” And I think that, in some ways, those two arguments work against each other. Do you need more witnesses, or do you not? And what we’re seeing happening now is Adam Schiff and the other impeachment managers doing their level best to say, “OK, we’ll go with door number one. We have enough, and we’re going to show video for the next three days making the case.” But I think it is also true that they have said, and they have said all along, “If you don’t give us Mick Mulvaney, if you don’t give us John Bolton, we only know a part of the story. We know a small part of the story.” And I think, in some sense, at the end of the day, it’s an attempt to refute the Republican talking point, which is, none of these witnesses were in the room, it’s all hearsay. They want to have people who were in the room where it happened. And to be denied that and then told, “You don’t have any firsthand witnesses,” feels like a trap to them.
AMY GOODMAN: And finally, Dahlia, we’re about to have Tim Robbins on, the director and actor, and I wanted to go to the issue of the framing of the Senate, this whole issue that no longer can the cameras be in the Senate, but that the Republicans are determining the frame of what we are seeing. C-SPAN can’t even do this, and they all have to take the Republicans’ frame of this trial, which is only looking forward. You cannot generally see the senators. The significance of this? And, of course, you’re a longtime Chief Justice Roberts watcher. You’re a Supreme Court reporter. You know, here you have the chief justice who’s presiding over the Senate trial.
DAHLIA LITHWICK: Just on the media question, I mean, you know better than anyone what it means to have media limitations on a consequential hearing like this. It’s not just that the cameras have been removed from the room. It’s that reporters cannot engage in walk-and-talks and do the kinds of things that they should be allowed to do in the halls of the Senate. I sit on the steering committee for the Reporters Committee of the Freedom of the Press, and it is really unconscionable, the lack of press access that we’re having and that that’s dressed up as a security problem.
On the issue of John Roberts, look, he’s done exactly what you and I have talked about in the shows prior to this: He has tried as much as possible to fade back into the bushes, to be a potted plant. He had one brief moment on Tuesday night where he rebuked both sides for intemperate speech. But I think anyone who thought that John Roberts was going to leap into —
AMY GOODMAN: And brought the word “pettifogging” back.
DAHLIA LITHWICK: “Pettifogging” back in style, but also, really, I think, tried to do some both-sideism to take control of the optics. I don’t think we’re going to see a John Roberts who is eager to rush in and make rulings and be a tiebreaker. He really, I think, is waiting this out and hoping it goes away.
AMY GOODMAN: Dahlia Lithwick, we want to thank you for being with us, senior editor at Slate.com, where she’s senior legal correspondent and Supreme Court reporter.
When we come back, President Trump moves to expand his travel ban to seven more countries. We’ll speak with the Oscar-winning actor Tim Robbins about his new play on immigration. It’s called The New Colossus. It’s traveling the country. Stay with us.