- Dahlia Lithwicksenior editor at Slate.com, where she is the senior legal correspondent and Supreme Court reporter. Dahlia also hosts the legal podcast Amicus.
The Republican-led Senate appears poised to acquit President Trump as early as today in his historic impeachment trial. On Thursday night, Republican Senator Lamar Alexander of Tennessee announced he would vote against calling witnesses. Alexander said it was “inappropriate” for Trump to ask a foreign leader to investigate a political rival, but he went on to say “there is no need for more evidence to prove something that has already been proven and that does not meet the United States Constitution’s high bar for an impeachable offense.” Democrats need four Republican senators to support calling for witnesses, but it appears they will fall short. Republican Senators Susan Collins and Mitt Romney have said they will vote yes. If Lisa Murkowski of Alaska votes with them, it will result in a 50-50 tie, meaning no witnesses will be called unless Chief Justice John Roberts casts a tiebreaking vote. If the vote to call witnesses fails, the Republican leadership is expected to move quickly to end the trial and vote to acquit the president. Democrats have been demanding that former Trump national security adviser John Bolton testify in the trial. In an upcoming book, Bolton writes that Trump personally told him that $391 million in military aid to Ukraine was held up in order to pressure that country into launching investigations into Trump’s political rivals, including Joe Biden. We speak with Dahlia Lithwick, senior editor at Slate magazine, where she is the senior legal correspondent and Supreme Court reporter, as well as host of the legal podcast “Amicus.”
AMY GOODMAN: The Republican-led Senate appears poised to acquit President Trump as early as today in just the third presidential impeachment trial in U.S. history. On Thursday night, Republican Senator Lamar Alexander of Tennessee announced he would vote against calling witnesses. Alexander said it was inappropriate for Trump to ask a foreign leader to investigate his political rival, but he went on to say, quote, “There is no need for more evidence to prove something that has already been proven and that does not meet the United States Constitution’s high bar for an impeachable offense,” unquote. Democrats need four Republican senators to support calling for witnesses, but it appears they’ll fall short.
Democrats were hoping to hear testimony from former national security adviser John Bolton. In a forthcoming book, Bolton has reportedly written that Trump personally told him he wanted to maintain a freeze on military aid to Ukraine until Ukraine turned over materials related to his political rival, former Vice President Joe Biden.
Republican Senators Susan Collins and Mitt Romney have said they will vote yes today on witnesses. If Lisa Murkowski of Alaska votes with them, it will result in a 50-50 tie, meaning no witnesses will be called, unless Chief Justice John Roberts casts a tiebreaking vote, which is seen as highly unlikely. If the vote to call witnesses fails, the Republican leadership is expected to move quickly to end the trial and vote to acquit the president.
Hours before he made his announcement, Republican Senator Lamar Alexander, along with Lisa Murkowski, submitted a question during the Senate trial, asking if Bolton’s testimony would even matter, because Trump’s legal defense team claims the allegations, even if true, don’t rise to the level of an impeachable offense. White House deputy counsel Patrick Philbin and lead House impeachment manager Congressman Adam Schiff both responded. This is Philbin.
PATRICK PHILBIN: There was no quid pro quo. There was no — and there is no evidence to show that. There was not that sort of linkage that the House managers have suggested. But let me answer the question directly, which I understand to be, assuming for the sake of argument that Ambassador Bolton would come and testify the way The New York Times article alleges the way his book describes the conversation, then it is correct that even if that happened, even if he gave that testimony, the articles of impeachment still wouldn’t rise to an impeachable offense.
REP. ADAM SCHIFF: We know why they don’t want John Bolton to testify. It’s not because we don’t really know what happened here. They just don’t want the American people to hear it in all of its ugly graphic detail.
AMY GOODMAN: To talk more about the impeachment trial, we’re joined by Dahlia Lithwick, senior editor at Slate.com, where she is the senior legal correspondent and Supreme Court reporter.
Dahlia, welcome back to Democracy Now! So, this is a crucial day. Explain what’s going to happen today, what we know and what we don’t know.
DAHLIA LITHWICK: I think we’re going to see a whole bunch of motions, Amy, much as we saw in the first day, where Democrats tried to bring forth motions to hear witnesses again, to have more testimony, to have more evidence. And I think, as you just said, they are likely to be roundly defeated. It looks as though they just don’t have the four votes they need to proceed. Maybe we’ll be surprised. But if that’s the case, it will be a lot of skirmishing about procedure. And the plan is, I think, to go to closing arguments. And then, probably as late as 2:00 or 3:00 in the morning, late tonight, there will be a final vote to end this whole thing. People could wake up this time tomorrow, and it was all over.
AMY GOODMAN: So, explain how this all goes down. I mean, even as we speak, we may hear what Senator Murkowski of Alaska has decided to do, whether she wants to call witnesses. Romney has said yes — we’re here in Utah — the junior senator from Utah. And Susan Collins, who’s in a very close race in Maine, has said she wants to have witnesses.
Then there was Lamar Alexander. And I want to read some of what Senator Lamar Alexander’s statement is. He wrote, “The question then is not whether the president did it, but whether the United States Senate or the American people should decide what to do about what he did. I believe that the Constitution provides that the people should make that decision in the presidential election that begins in Iowa on Monday,” he said. So, he actually said President Trump was wrong in what he did, but it didn’t rise to the level of an impeachable offense. We’ll see how that affects Murkowski.
Of course, there are Democrats, like Joe Manchin, who could split with the Democrats and vote with the Republicans on this. But talk about this. And then, you are a longtime Chief Justice John Roberts watcher. If they do tie, what does this mean? Chief Justice Roberts would be the tiebreaker, but he doesn’t have to be.
DAHLIA LITHWICK: Well, just as to the first point, I think the most interesting thing to me about Senator Alexander’s move there is there are two things that he did. One, that’s astonishing, is he essentially said, a week ago we were all saying this didn’t happen, it couldn’t have happened, there was no quid pro quo; now we’re all conceding it happened, but it’s not bad. And I just think it’s really important to see how the marker has shifted, that it seems that a week ago we were arguing the facts: Maybe the facts didn’t happen, maybe it didn’t happen the way it’s alleged. With Bolton’s new allegations, I think everybody now stipulates it happened, it was really bad. And so, what we’ve seen — and this shift is profound, Amy — Alan Dershowitz getting up and saying, “Well, it’s OK, presidents do it all the time. As long as the president wanted to influence the election because he believed it was in the good of the country, then it’s perfectly fine.” And that’s — you know, Republicans in the Senate fell in line. So I just want to be super clear: What just happened was defining impeachability down. It is almost impossible now to meet the standard where they’ve set the bar. And that is really a change that happened in the blink of an eye.
Just as to your other point about Lamar Alexander, it’s an amazing abdication of senatorial responsibility to say, you know, shruggy emoji, “We don’t know what happened, but let the people decide.” I mean, there’s no point in having a Senate or a trial if you don’t step up right now.
As to the question of John Roberts, I think you and I have had this conversation a few times in the last few weeks. John Roberts has one preeminent, predominant interest, and that is not getting involved. He does not want the sort of stink of politics to be on him. He has very masterfully gotten through these last couple of days by just sort of figuratively and literally rising above it. I think anyone who believes that he is going to throw in and be the guy who decided a fundamental question in this impeachment trial just is not watching John Roberts. So, if he decides — and it has happened historically. In 1868, Chief Justice Salmon Chase did break some ties when he presided over Andrew Johnson’s impeachment. I don’t think John Roberts is a chief justice in that model. I think he is going to very, very much do everything he can not to be involved. And if it comes to this question of do you cast the tiebreaking vote, I think he will say, “I’m out,” and leave it to the Senate, in which case there is no conviction.
AMY GOODMAN: Right, because a tie would mean that President Trump is acquitted. But wouldn’t that be chief justice weighing in in a very big way, because he knows this?
DAHLIA LITHWICK: It’s such a fundamental question in this moment. Is neutrality neutral? And of course it’s not neutral. He would be throwing in his lot with the Republicans. But I think that he would also be able to have a kind of plausible deniability, Amy. He’d be able to say, you know, “I did nothing. I didn’t insert myself in. I let the procedure go as it needed to go.” And I think he would claim that he really only had a ceremonial role. There’s been a lot of good op-eds this week by law professors saying, “Look, the Constitution says he shall preside. And that means, you know, when the vice president presides over the Senate, he has a real role in breaking ties. He has an absolute nonceremonial role.” So I think that’s being urged on John Roberts. But I think that, very, very much clear to me, that what he cares about, in first thing in the morning and last thing at night, is that the courts be above this, that the courts not be dragged into this. Senator Elizabeth Warren tried to drag him into it with a question yesterday, and you could just see him bristle. He does not want to be told that this is his show.
AMY GOODMAN: Oh, let’s go to this. Let’s go to this moment, when Chief Justice John Roberts read a question submitted by the presidential candidate Democratic Senator Elizabeth Warren of Massachusetts. This is Roberts, followed by a response from Democratic Congressmember Adam Schiff, of course, the head of the Intelligence Committee, the chief House manager.
CHIEF JUSTICE JOHN ROBERTS: “At a time when large majorities of Americans have lost faith in government, does the fact that the chief justice is presiding over an impeachment trial in which Republican senators have thus far refused to allow witnesses or evidence contribute to the loss of legitimacy of the chief justice, the Supreme Court and the Constitution?”
REP. ADAM SCHIFF: I would not say that it contributes to a loss of confidence in the chief justice. I think the chief justice has presided admirably. … But it does not reflect well on any of us if we are afraid of what the evidence holds, if this will be the first trial in America where the defendant says at the beginning of the trial, “If the prosecution case is so good, why don’t they prove it without any witnesses?” That’s not a model we can hold up with pride to the rest of the world. And, yes, Senator, I think that will feed cynicism about this institution.
AMY GOODMAN: So, Dahlia Lithwick, explain.
DAHLIA LITHWICK: Yeah, I mean, there’s a part of me, a small part of me, having just said that being neutral is not neutral, that my heart does go out to the chief justice. If you read his State of the Judiciary speech that went down right before New Year’s, it is clear he feels as though the courts are facing this existential crisis, that the public doesn’t believe that they are legitimate, that the public believes that they are political and that they are driven entirely by sort of craven political motives. And that’s killing him. It’s why, last year, when Donald Trump went after, quote, “Obama judges,” for the first time, the chief justice really called him out and said, “No, no, no, no. We are not Obama judges and Bush judges. We are judges.” So I think there is this anxiety. And you have to kind of concede that it is an anxiety for him, that is, “I have to bolster the reputation of the entire Article III judiciary because Donald Trump is trying to drag it down.” And that, I think, is why Adam Schiff was at pains to say, “No, no, Mr. Chief Justice, we have ultimate faith in you.”
But I think the larger problem is, if, in a sense, John Roberts does what you just heard in Lamar Alexander’s statement, which is to say, you know, “I have no role to play here. I guess the people should decide. The process is a neutral adjudicatory process in which nobody apparently wants to hear witnesses, nobody apparently wants to step forward and make a decision,” that is a decision to put a thumb on the scale for Mitch McConnell’s whole sort of show trial here. And so, you can at the same time kind of empathize with the anxiety he feels about getting his hands dirty here, and also just, I think, recognize that history will probably remember, if it comes down to these three votes and John Roberts as tiebreaker, that he, in deciding not to decide, did not necessarily do the integrity of the judicial branch or of this, quote-unquote, “trial” in the Senate any favors.
AMY GOODMAN: I wanted to also go to another moment, Supreme Court Chief Justice John Roberts declining to read a question submitted by Republican Senator Rand Paul of Kentucky. The question included the name of a person some speculate is the CIA whistleblower whose complaint catalyzed the impeachment inquiry. This is the moment.
CHIEF JUSTICE JOHN ROBERTS: The presiding officer declines to read the question as submitted.
AMY GOODMAN: On Thursday, Senator Paul tweeted, quote, “My question today is about whether or not individuals who were holdovers from the Obama National Security Council and Democrat partisans conspired with Schiff staffers to plot impeaching the President before there were formal House impeachment proceedings.” Dahlia Lithwick, take it from there.
DAHLIA LITHWICK: Yeah, I think this goes to an important criticism that a lot of at least Democrats have had of the chief justice. Amy, he did absolutely the right thing. He refused to name the whistleblower in Senator Rand Paul’s letter. He declined to do something that — we just don’t out whistleblowers. In some contexts, it’s a felony. But then Rand Paul just got up, left the chamber, read the statement, named the whistleblower, went ahead and did on television the thing that John Roberts had declined to do sort of in real time in the decorous chamber.
And this is another of many examples where I think there was some sense that the John Roberts who called out — if you remember, on the first night of the trial, called out both sides for inappropriate language, for being overtly destructive and really, in his view, unfortunately partisan. He has just stood back and let senators amble around, leave the chamber. There have been moments where half of them weren’t there, standing in the back talking, ducking into the cloakroom to take phone calls, doing interviews in the hallways. And he has done nothing to constrain really unseemly behavior that has happened throughout the trial. And I think that that has been a criticism of him. For him to say, “I won’t read the name of the whistleblower,” but then Rand Paul ducks out and does it on television, not clear that in reality it made a huge difference.
AMY GOODMAN: Well, Dahlia Lithwick, we want to thank you so much for being with us, senior editor at Slate.com, where she’s the senior legal correspondent and Supreme Court reporter.
As usual, democracynow.org, we will live-stream all the proceedings, from gavel to gavel. They begin again today at 1 p.m. Eastern Standard Time. So tune in at democracynow.org.
When we come back, Disclosure, a groundbreaking film here at the Sundance Film Festival, examining more than a century of trans representation on screen. Stay with us.