Senate Democrats had a surprising takeaway on Saturday: President Donald Trump’s lawyers are making their argument for them.
In their fight to win new witnesses and evidence, Democrats latched onto a line from White House deputy counsel Patrick Philbin — that “cross-examination in our legal system is regarded as the greatest legal engine ever invented for the discovery of truth.” Given the stiff opposition from the Trump administration and Republicans to hearing from witnesses with direct knowledge of the president’s actions in the Ukraine saga, Democrats almost couldn’t stand the irony.
“I was absolutely stunned that they would consistently say that cross-examination is the greatest engine for truth and we’re playing a shell game,” said Sen. Doug Jones (D-Ala.), referring to counsel Pat Cipollone’s remarks to end Saturday’s session. “It is the president that is playing that shell game and denying cross examination.”
Jones, who described himself as “pretty animated” when he heard the argument from the president’s lawyers, faces the toughest Senate reelection bid in the country. But it seemed easy for him to come to a conclusion about the president’s opening arguments: “I deserve to hear more about the facts and not just the partisan rhetoric.”
Sen. Joe Manchin (D-W.Va.), one of the few Democrats who is not a guaranteed vote to convict the president, was more insistent on securing witnesses than ever.
“They were very clear in saying there is not one witness we’ve heard from on the prosecution’s case that they’ve made [that] has had direct contact with the president,” Manchin said. “And I’ve been saying all along: How do you have a trial without hearing from witnesses?”
The skeptical reaction from some of the Democrats most likely to be open to the Trump team’s arguments highlight the partisan divide that has consumed the Senate impeachment trial from the start.
Senate Democrats’ hopes have dimmed in recent days that they will ultimately win the vote on whether to open the door on witnesses, particularly given recent noncommittal comments from key Republican senators on the issue. But on Saturday, Senate Minority Leader Chuck Schumer (D-N.Y.) argued the White House’s line of persuasion had made his quest for witnesses and document “even stronger.”
Democrats need at four Republican votes to call witnesses, and there are few GOP senators who seem even remotely willing to consider voting for witnesses at this point. Only Sens. Mitt Romney (R-Utah) and Susan Collins (R-Maine) have said they are likely to support it.
Sen. Joni Ernst (R-Iowa) said in an interview Saturday she’s “leaning” against voting for witnesses and Sen. Cory Gardner (R-Colo.) was entirely non-committal: “We’re in the middle of the hearing.”
The Trump lawyers were “low key, specific and I thought they were persuasive,” said Sen. Lamar Alexander (R-Tenn.), who is undecided on witnesses and rested his eyes for part of Philbin’s presentation. “They spoke very well.”
The White House lawyers argued against several votes on witnesses and documents earlier this week, reasoning that the issue will be litigated later. The trial blueprint approved by the Senate provides two hours for each side to make their case on whether to call witnesses. And barring a stunning reversal from Senate Majority Leader Mitch McConnell (R-Ky.) and the White House, Cipollone and Philbin appear on course to lobby against hearing new evidence.
But what struck those who support calling witnesses was the case made by Trump lawyers that House impeachment managers had failed to bring forward testimony from people who had directly talked to Trump about the withholding of aid to Ukraine and requests for investigations into Biden.
That’s precisely because the White House has barred the participation of people like acting White House chief of staff Mick Mulvaney and former national security adviser John Bolton from participating in the impeachment inquiry.
“I found it particularly galling and rich,” said Sen. Martin Heinrich (D-N.M.). “This is the place where due process is supposed to happen and yet they’ve completely locked out due process.”
“It just underscores the importance of hearing from those witnesses who can give us direct information but didn’t testify in the House,” said Sen. Ben Cardin (D-Md.).
Overall, most Democrats strongly criticized the White House lawyers’ presentation, a mirror image of Senate Republicans’ attacks on the House managers’ presentations earlier this week. But they found some things persuasive. Manchin said they generally did a “good job,” for example, and Jones said he agreed with some of the process complaints about how the House inquiry was run.
Senate Minority Whip Dick Durbin (D-Ill.) also said that after the lengthy arguments from House managers, Cipollone’s frequent references to keeping the White House defense relatively short was a smart tactic: “It doesn’t hurt. From that point of view, you have a more positive feeling from the presentation if you feel like you’re going to be able to go home.”
But overwhelmingly Democrats found it unpersuasive and at times laughable, particularly Cipollone’s contention that they would prove that the president had “done nothing wrong.”
“I know this from private conversations with colleagues: I don’t think there’s a person in that chamber, or very few of us, that believe this president did nothing wrong and [that’s] the thing that just most irks me,” said Sen. Cory Booker (D-N.J.).
White House and personal lawyers to the president will begin their opening arguments Saturday by attacking former Vice President Joe Biden, who is vying to unseat the president in the 2020 contest.
This story will continue to be updated. Keep scrolling for other recent highlights.
Trump legal team attacks Schiff
President Donald Trump’s team began their defense with an attack on Rep. Adam Schiff (D-Calif.), playing a video of the California Democrat parodying Trump’s July 25 call with the president of Ukraine.
Schiff’s embellished reading of Trump’s call has become a consistent rallying cry for Trump, who has ignored Schiff’s admission before and after the reading that he meant it as a parody and a paraphrase. Rather, Trump has described the reading as an attempt to defraud viewers into believing a more sinister version of the call.
In his version of the call, Schiff added his own inferences about what he argued Trump intended to convey to Ukraine: that they had to investigate his Democratic opponents or face reprisal. — Kyle Cheney
28,578 pages of evidence
Democrats delivered 28,578 pages of evidence to the Senate on Saturday, marking the formal transfer of the House’s impeachment record that supported their case to remove President Donald Trump from office.
The delivery of the hard-copy evidence was a made-for-TV moment, with the seven House prosecutors — led by Rep. Adam Schiff — accompanying carts stacked with boxes and binders into the Senate chamber.
Trump’s defense doesn’t ‘anticipate’ using full 24 hours to make case
The White House does “not anticipate” using its full 24 hours of debate time, counsel Pat Cipollone said on Saturday morning, putting President Donald Trump’s trial on an even faster track than previously envisioned.
Trump’s legal team will make its opening argument for about three hours on Saturday, and then come back on Monday to continue its case.
Cipollone said he will be respectful and of the Senate’s time and “very efficient.” Democrats used the allotted 24 hours over three days to make their opening arguments.
“We will finish efficiently and quickly so we can all go have an election,” he said. — Burgess Everett
Trump’s legal team to launch unbridled attack on Biden
President Donald Trump is the one on trial, but brace yourself Saturday to hear an awful lot about Joe Biden.
After sitting silently on the Senate floor for three full days, White House and personal lawyers to the president plan to turn his impeachment trial into an uninterrupted attack on the former vice president — a frontrunner to be the Democrats’ 2020 nominee.
“Believe me, you’ll hear about that issue,” Jay Sekulow, Trump’s longtime personal lawyer, told reporters. Read the full story. — Darren Samuelsohn and Kyle Cheney
Forget impeachment. Republicans fear Ukraine revelations could spill into election.
Republicans are already looking past impeachment, sensing a looming Democratic plot to gradually release more Ukraine bombshells as Donald Trump fights for re-election.
Even with the president’s impeachment trial racing toward a swift acquittal for Trump, Republicans have seen a drip, drip, drip of information in recent days about Trump’s role in pressuring Ukraine to investigate a political rival. They liken it to the repeated allegations of misconduct lodged against Supreme Court Justice Brett Kavanaugh during his 2018 confirmation fight, and fear they’re witnessing an election-year repeat. Read the full story. — Anita Kumar
President Donald Trump is the one on trial, but brace yourself Saturday to hear an awful lot about Joe Biden.
After sitting silently on the Senate floor for three full days, White House and personal lawyers to the president plan to turn his impeachment trial into an uninterrupted attack on the former vice president — a frontrunner to be the Democrats’ 2020 nominee.
“Believe me, you’ll hear about that issue,” Jay Sekulow, Trump’s longtime personal lawyer, told reporters Friday in the Capitol during brief remarks where he previewed how the president’s legal team planned to use its allotted 24 hours of time to air a long list of familiar Trump grievances, including unsubstantiated charges of corruption against Biden.
It’s not the strategy most lawyers would take when a president’s job is on the line. But this is the Trump era and any norms from past impeachment fights appear to be out the window. More than anything, Trump’s lawyers are aiming to use their nationally-televised platform to stamp out any lingering consideration by a handful of Senate Republicans to join Democrats in demanding new witnesses and documents to aid their prosecution.
Whether that plan works remains to be seen — a vote on the witness question looms next week and several GOP senators have suggested they’re still open-minded. Trump himself is a wildcard in that debate. He has at times demanded that Republicans call his own favored witnesses, including Biden, and at others has called for a swift rejection of Democrats’ case.
Trump’s Senate trial revolves around an abuse of power charge from the Democrat-controlled House that he pressured his Ukrainian counterpart to investigate Biden and other political adversaries, in part by withholding $391 million dollars in military aid. The House also impeached Trump for obstructing their investigation into the alleged scheme.
Over three days this week, Democrats laid out a voluminous case against the president, and concluded by calling him an ongoing and “imminent threat” to national security who is likely to continually attempt to corrupt the 2020 election to his benefit. The House’s lead prosecutors, Rep. Adam Schiff, described Trump as a willing vessel for Russian propaganda aimed at hurting the U.S.-Ukraine alliance. And Democrats also sought to preemptively counter many of Trump’s anticipated attack lines.
But now it’s Trump’s turn to push back. His attorneys intend to argue extensively — despite voluminous testimony to the contrary — that repeated calls for Ukraine to investigate Biden reflect a genuine concern about corruption rather than a politically motivated attempt to damage a rival.
They also contend that Biden sought the removal of a Ukrainian prosecutor who was investigating Burisma, an energy company where Biden’s son, Hunter, was serving on the board of directors.
Democrats presented extensive evidence during the Senate trial that the Ukrainian prosecutor Biden and the Obama administration helped remove was an impediment to anti-corruption investigations. Rather, witness testimony collected by the House suggested that Trump seemed fixated on pushing a sham investigation into Biden in order to damage the former vice president’s political prospects headed into the 2020 Democratic nomination fight. Democrats also gathered extensive evidence to show that Trump privately professed no interest in anti-corruption efforts in Ukraine and other countries.
The high-profile effort by Trump’s attorneys to delve into the Bidens is in many ways akin to the outcome Democrats sought to head off when they first began their impeachment investigation.
“What they hope to achieve in the Senate trial is what they couldn’t achieve through their scheme,” Schiff said Friday night. “It’s about completing the object of the scheme through other means — through the means of this trial.”
On Friday, Sekulow said that House prosecutors “opened up the door” for the president’s lawyers to go on offense on Biden since they brought the topic up first — comments that mirror those of Sen. Lindsey Graham (R-S.C.).
“I guess they figured that was their way of getting ahead of it,” Sekulow said.
Trump’s lawyers won’t just dwell on Biden. They also intend to make an extensive case that Democrats’ entire impeachment process must be discarded as invalid. Leaning on outside-the-mainstream constitutional theories, the Trump team has argued that the House’s impeachment is “defective” because it didn’t charge him with violating a criminal statute. And they dispute that Trump can be booted from office over a charge he rejected congressional subpoenas.
“This idea that you obstruct Congress by exercising … constitutional privileges is absurd, absolutely absurd,” Sekulow said. “These are fundamentally important rights, the way our separation of powers works, under our form of government.”
Trump lamented on Twitter Friday morning that his impeachment defense team — recently restocked with legal heavyweights like former independent counsel Kenneth Starr and retired Harvard law professor Alan Dershowitz — would kick off its presentation Saturday morning during the “Death Valley” of broadcast time slots.
But Sekulow downplayed the way the schedule worked out. He explained that the Senate asked Trump’s lawyers to only use about three hours Saturday morning, which means they’ll just be previewing what will be a more substantive presentation starting Monday and potentially spilling into Tuesday.
“I’d call it a trailer,” Sekulow said. “Coming attractions.”
Republicans are already looking past impeachment, sensing a looming Democratic plot to gradually release more Ukraine bombshells as Donald Trump fights for re-election.
Even with the president’s impeachment trial racing toward a swift acquittal for Trump, Republicans have seen a drip, drip, drip of information in recent days about Trump’s role in pressuring Ukraine to investigate a political rival. They liken it to the repeated allegations of misconduct lodged against Supreme Court Justice Brett Kavanaugh during his 2018 confirmation fight, and fear they’re witnessing an election-year repeat.
Publicly, Trump appears agitated, lashing out in record-setting tweet storms that often targeted House Democrats, who have released more evidence about the Ukraine saga this week despite their portion of the impeachment process being over. On Friday, Trump started tweeting at 6:18 am. Less than two hours later, he already sent more than 50 tweets, including one lamenting that defense team was being forced to present its case Saturday during the “Death Valley” of broadcast time slots.
“The Impeachment Hoax is interfering with the 2020 Election – But that was the idea behind the Radical Left, Do Nothing Dems Scam attack,” he wrote. “They always knew I did nothing wrong!”
Privately, however, Trump and his allies are relieved that the trial hasn’t resulted in any surprises and that none of the recent information dumps haven’t appeared to hurt the president politically, according to interviews with half a dozen Republicans. In part, they say, Americans have been inundated with information, meaning none of it is sticking. In the short run, they feel they’ve won.
Behind closed doors on Thursday night, Trump cracked jokes and mocked Democrats for what he dubbed “impeachment lite” — a term he’s used at recent campaign rallies — and remarked that no one was watching the trial at a Republican National Committee meeting at his resort, according to a person familiar with his remarks. Most of his 90-minute speech focused on the 2016 race and his accomplishments as president, the person said. Trump told others that the trial was “boring” and that he didn’t think the process had damaged him, according to a person who spoke to him this week.
It was the same message the White House was sending out to its surrogates.
“The House’s impeachment managers recycled the same tired attacks Congressional Democrats have been using for months,” according to White House talking points obtained by POLITICO. “We learned nothing new from their presentation – just wasted more time on this partisan hoax.”
Over at the Trump campaign, officials credit impeachment with energizing their supporters, contributing to record donations and volunteers. The campaign previouslyannounced that it raised $46 million during the final three months of 2019, its largest quarterly haul, using fundraising appeals that portrayed Trump as a victim of Democrats out to destroy him during impeachment. The campaign didn’t respond to questions about more recent fundraising numbers.
In the long run, however, Trump’s allies worry something more sinister looms. More document releases. More investigations.
“No one in this building believes House Democrats are done with impeachment,” a White House official said. “I wouldn’t be surprised if they launched a dozen more sham investigations between now and Election Day.”
Trump is accused of conditioning millions of dollars in military aid to Ukraine, as well as a much-desired White House meeting for the country’s leader, on Kyiv launching an investigation into Joe Biden and his son, Hunter. Trump and his allies contend that the desired probe was part of a broader effort to eradicate corruption and uncover foreign wrongdoing in the 2016 presidential race, not an attempt to undermine a potential 2020 rival.
The House eventually impeached Trump over the scheme, approving two articles: one alleging abuse of power, and the other alleging obstruction of Congress. The articles were approved along a near party-line vote.
Long beyond the Senate trial kicked off in earnest Tuesday, new information about Trump’s role in pressuring Ukraine to investigate a political rival surfaced. Republicans pounced on the timing.
“It looks political,” said Scott Jennings, who worked under President George W. Bush and is close to the Trump White House. “Democrats are only doing this to influence election.”
It was the latest in a string of new reports and evidence that has come out since the new year — and after the House impeached Trump.
On Jan. 2, the national security website Just Security published internal emails that indicated Trump personally directed staff to withhold U.S. aid to Ukraine. On Jan. 14, House Democrats released documents that included photos of an indicted associate of Trump’s attorney with Trump’s family and top aides. Two days later, the Government Accountability Office concluded the White House budget office violated the law when it froze U.S. military aid to Ukraine. And the next day, House Democrats released newly obtained texts capturing a discussion about the surveillance of the ousted U.S. ambassador to Ukraine, Marie Yovanovitch.
The drip-drip continued into this week as Trump’s impeachment trial ramped up. On Friday, ABC News reported the existence of a recording that appeared to capture Trump telling a small group that he wanted Yovanovitch fired, potentially linking Trump more closely to the campaign to oust the ambassador. The gathering included Lev Parnas and Igor Fruman, the now indicted former business associates of Trump’s personal lawyer Rudy Giuliani.
Republicans blame Democrats for the release of new information, even though only some came from House Democrats after they received new evidence. Other pieces have been released through news outlets, while the GAO is a non-partisan agency that reports to Congress.
“Democrats are going to keep releasing to their media friends supposedly ‘new’ info to demand more investigation and witnesses anytime the trial is nearly over,” said a Senate GOP aide, who described it as a “rolling production.”
House Democrats are using some of the new information as they make their case against Trump in the Senate. During the House’s initial investigation, the White House blocked numerous witnesses from testifying and withheld requested documents, leaving Democrats to argue that they couldn’t get a complete picture of what had occurred.
“Democrats don’t seem to have another gameplan,” said Michael Caputo, former top adviser to Trump during his 2016 campaign. “It’s the continual escalation strategy. The American people are on to it now. Death by a 1,000 cuts now takes 10,000 cuts.”
A former Trump adviser who remains close to the White House insisted the tactic could backfire on the Democrats because it shows that they failed to gather all the evidence before voting to impeach him in December.
“It hurts the Democrats,” the former adviser said. “They clearly didn’t go through the lengthy process. They made a political decision on timing.”
It’s a situation that has Republicans recalling the Kavanaugh confirmation process.
Trump nominated Kavanaugh to the Supreme Court in July 2018 and fought hard for his confirmation by the Senate even as the judge faced allegations of sexual misconduct. The Senate narrowly confirmed Kavanaugh with a near-party line vote. Trump often mentions Kavanaugh’s confirmation as one of his greatest accomplishments, repeatedly decrying how Democrats treated the judge.
“It’s the same exact model,” said an outside adviser. “We lived this with Kavanaugh.”
Gabby Orr and Meridith McGraw contributed to this report.
That gives Sanders a 7-point lead over his closest competitor, former South Bend (Ind.) Mayor Pete Buttigieg, who is at 18 percent, roughly tied for second place with former Vice President Joe Biden at 17 percent and Sen. Elizabeth Warren of Massachusetts at 14 percent. Sen. Amy Klobuchar of Minnesota is in fifth place, at 8 percent, the only other candidate above the low single digits.
The survey, which was conducted this past Monday through Thursday and released just nine days before the caucuses, highlights the pressure on Sanders’ rivals, who have seen the independent senator from Vermont surge in the weeks leading up to the first votes of the Democratic nominating process. A Des Moines Register/CNN/Mediacom poll released two weeks ago also showed Sanders with a single-digit advantage in the caucuses, though Biden has led in other surveys released since that.
After Iowa, Sanders also leads in polls of the first-in-the-nation primary in New Hampshire —and victories in both of the earliest voting states would make him the favorite to capture the party’s nomination.
In Iowa, the poll shows, Sanders is driven by support among young voters — along with a sizable gender gap.
Among the youngest voters — those under 30 — Sanders is the first choice of 40 percent, leading Buttigieg (16 percent), Warren (16 percent) and Biden (10 percent).
Biden, meanwhile, is the top choice of 32 percent of Democrats 65 and older, with Buttigieg (17 percent), Klobuchar (13 percent), Sanders (9 percent) and Warren (8 percent) trailing behind.
Roughly one-in-three male Democrats, 34 percent, say Sanders is their first choice — giving him a nearly 20-point lead among men over Buttigieg (15 percent), Biden (14 percent) and Warren (10 percent). The race is essentially tied among women, however, with the top four candidates all bunched between 17 percent and 20 percent.
About six-in-10 likely caucus-goers, 59 percent, say their minds are made up — including 65 percent of Sanders supporters, 65 percent of Biden backers and 64 percent of Buttigieg voters.
Because of the nature of the caucus process — two rounds of voting at each caucus site, including the elimination of low-polling candidates deemed “not viable” — polls in Iowa reflect voters’ initial preferences, but not necessarily the final outcome. Still, the New York Times/Siena poll attempts to gauge voters’ second choices, which may determine how they behave on Feb. 3 if their initial preference is eliminated after the first alignment.
Among Sanders’ supporters, a plurality, 44 percent, would pick Warren, a fellow liberal candidate. The majority of Warren’s voters, meanwhile, are split between Sanders (37 percent) and Klobuchar (23 percent).
Caucus-goers are only allowed to choose another candidate if their first choice does not meet the viability threshold at their precinct, which is 15 percent in the vast majority of caucus sites.
The candidates polling well below Klobuchar include businessman Tom Steyer (3 percent), entrepreneur Andrew Yang (3 percent), Rep. Tulsi Gabbard of Hawaii (1 percent), former New York City Mayor Mike Bloomberg (1 percent), Sen. Michael Bennet of Colorado (0 percent), former Rep. John Delaney of Maryland (0 percent) and former Massachusetts Gov. Deval Patrick (0 percent). Eight percent of caucus-goers are undecided.
For Democrats who worry that nominating Sanders — a self-avowed “democratic socialist” who is proposing a massive expansion of the federal government — will hurt the party’s chances of defeating President Donald Trump in the fall, the New York Times/Siena poll will offer little to ease their concerns.
In a general-election matchup in Iowa — a swing state Barack Obama carried twice before Trump flipped it in 2016 — Trump leads Sanders by 6 points, the poll shows, 48 percent to 42 percent. That’s a slightly larger margin than Trump has over other Democrats: He leads Buttigieg by 1 point, Biden by 2 points and both Warren and Klobuchar by 5 points.
The poll also tested Bloomberg — who is not competing in next month’s caucuses and is instead focused on states that vote later in the nominating process — against Trump, and he fares the worst. Trump leads Bloomberg, 47 percent to 39 percent.
Trump’s approval rating in the state is 51 percent, according to the poll, a little higher than his 46 percent disapproval rating.
Only 41 percent of Iowa voters would approve of the Senate removing Trump from office at the conclusion of the ongoing impeachment trial, while 53 percent would disapprove of Trump’s removal. (The poll was conducted partly before House Democrats began their three days of arguments on the Senate floor this week.)
The New York Times/Siena College poll was conducted Jan. 20-23, surveying 1,689 registered Iowa voters. The margin of error is plus or minus 2.8 percentage points.
For the sample of 584 likely Democratic caucus-goers, the margin of error is plus or minus 4.8 percentage points.
Alan Dershowitz, representing President Donald Trump, is expected take to the Senate floor soon to make his case against Trump’s removal from office. Dershowitz has said he will argue, based on a narrow reading of the Constitution’s phrase “Treason, Bribery or other High Crimes and Misdemeanors,” that there must be proof that Trump committed a crime or seriously violated the law, and that the mere “abuse of executive power” does not suffice, in order to convict the president at his impeachment trial.
Dershowitz’s view has been overwhelmingly rejected by serious constitutional scholars. Nevertheless, he has indicatedhe will base his argument on historical precedents established in 1868, during the trial of President Andrew Johnson. Back then, Johnson’s attorney, Benjamin Curtis, advanced the same narrow interpretation of “High Crimes and Misdemeanors,” arguing that simple abuse of power was not enough to remove Johnson from office; he must have seriously violated the law.
It’s not hard to see why Dershowitz would point to Johnson as an example: In the end, the Senate voted to acquit him. But Dershowitz is absolutely wrong in calling on Americans to remain faithful to this precedent. Historical evidence suggests that Johnson’s acquittal—on a narrow vote—had less to do with the merits of Curtis’ legal argument than it did with blatant acts of corruption. What’s more, the charges against Trump involve even more blatant “abuses of power” than those leveled against Johnson in 1868. Conscientious senators should reject Dershowitz’s appeal to history as deeply misconceived.
Johnson escaped conviction by the margin of 35 votes infavor of convictionto 19 against—only one vote shy of the two-thirds majority required for his removal. The shortfall was the result of a last-minute switch by Senator Edmund Ross of Kansas, a recent arrival to Washington who had been appointed to fill a vacated seat. Historian David O. Stewart, however, has found evidence that Ross’ interim appointment was pushed through by his political crony, Perry Fuller, who appears then to have bribed Kansas’ governor with $42,000 to obtain Ross’ reappointment for the remaining four years of his predecessors’ term. The plot thickens at the moment the Senate was about to come to its fateful decision about Johnson’s future. Ross had breakfast with Fuller just before he would join his Republican colleagues to cast their ballots on Capitol Hill. According to Stewart and Mark A. Plummer, there is reason to believe Fuller paid the senator $100,000 on the spot to change his mind, defy his party and vote to acquit Johnson. (This was a huge sum: equivalent to about $15 million today, when adjusted for inflation.)
Despite admirable historical detective work to substantiate these shady dealings, it has proved impossible to find a piece of paper documenting the bribes themselves. (It would have been foolish for Ross and Fuller to provide written evidence of their own guilt.) However, in return for his vote to acquit, Fuller seemingly wanted Ross to get him a high-powered job during the declining days of the Johnson administration. A grateful president indeed appointed Fuller as collector of the Port of New Orleans, in charge of the heavy Mississippi trade between America and foreign countries. Since Congress had recessed for the summer, Ross’ pal assumed office without the need for Senate confirmation—and immediately began to exploit his position to enrich himself and his cronies. Once Fuller was appointed collector, government regulations required him to leave an overwhelming paper-trail that documented his corrupt behavior.
As soon as the Johnson verdict was announced, Republicannewspapers were full of charges that Ross’ vote had been purchased. To be sure, American journalism in 1868 was just as politically polarized as it is today. For this reason, the journalistic accounts provided by the leading French newspaper of the day, Les Temps, have a special value. Its readers were much more interested in a biweekly story of 1,000 words of incisive analysis than in passionate partisanship. Moreover, by a remarkable coincidence, the young journalist sending regular dispatches to Les Temps was none other than Georges Clemenceau, who later became one of the greatest prime ministers in French history. His insightful commentaries were translated into English and published in the United States in 1928 as an enduring resource for future historians.
In his account, one of the “most astonishing” features of the Senate vote was Ross’ “sudden and unexpected desertion” of his Republican colleagues. As Clemenceau wrote: “The very day before the vote, Mr. Ross, the senator from Kansas, answered a [Republican] senator who questioned him: ‘Do not worry, I shall be voting on the right side tomorrow.’” As a relatively dispassionate but intensely engaged observer, Clemenceau made it plain that, given his express guarantee to vote to convict the president, Ross’ sudden about-face could not have been motivated by a quixotic repudiation of his long-held Republican principles; it could only be explained by a last-minute sell-out for personal gain.
But for the dirty dealing, the 56 Senators sitting as jurors in 1868 would have convicted Johnson of abuse of executive power despite his lawyer’s claim that such a move was unconstitutional. Once we turn to the two specific charges made against Johnson in the decisive article of impeachment, it becomes even plainer that Dershowitz’s reliance on the precedent of 1868 is misconceived.
Begin with the first of the two charges against Johnson. It asserted that he had “attempted to prevent” the enforcement of a congressional resolution ordering him to allow Edwin Stanton to retain his position as secretary of the Army. The key word here is “attempted.” In fact, Johnson tried, but failed, to discharge Stanton; Stanton refused to obey the president’s order, insisting that he would instead follow the instructions issued from Congress. A similar “attempt” is at the core of the first article of impeachment against Trump. According to witnesses testifying in the House, Trump has made, and continues to make, attempts to coerce Ukraine into an investigation into former Vice President Joe Biden and his son Hunter.
In contrast with Johnson, the articles of impeachment against Trump contend that he actually succeeded in his “attempt” in presidential self-aggrandizement. It is premature to make a final judgment on the matter; this will require hearing further evidence from both sides. Nevertheless, the fact that Johnson might well have been convicted of a failed “attempt” if there had not been corruption provides compelling support for the claim that Trump’s potentially successful “abuse of power,” even if not a crime, is an adequate ground for conviction.
The second charge advanced against Johnson reinforces this point. It attacked him for “unlawfully devising and contriving” to frustrate the implementation of the appropriations act passed by Congress “for the support of the army for the fiscal year ending June 30, 1868.” Similarly, the current House is condemning Trump for preventing “the release of $391 million of United States taxpayer funds that Congress had appropriated,” allegedly in order to coerce Ukraine into an aggressive investigation of a likely opponent in the 2020 election.
Once again, this charge against Trump is even more serious than the one advanced in 1868. While Johnson tried to use congressional appropriations as a weapon in his struggle for control of the army, he did not succeed. In 2020, however, the House already possesses a great deal of credible evidence that Trump succeeded in abusing his fundamental duty to “take care that the laws be faithfully executed.” A failed attempt led to the near removal of Johnson, but Trump seems to have done more than merely make an “attempt.” It is once again imperative for the Senate to hear additional evidence before coming to a decision about whether he succeeded.
Dershowitz has utterly failed in his all-out assault on the broad consensus that presidents can be removed for “abuse of power” even if they have not engaged in blatant violations of the law. The case of abuse against Trump is far stronger than anything that could well have led to Johnson’s conviction in 1868. This means the Senate will soon be facing a moment of truth. If a majority of senators votes to hear witnesses from both sides, they will establish that, regardless of the outcome of the trial, the systematic abuse of power by presidents is impeachable at least in principle, even if their conduct isn’t blatantly illegal. If, however, Majority Leader Mitch McConnell manages to convince 51 senators that the House articles don’t deserve a fair trial, future presidents—of both parties—will predictably use the Senate’s decision as a precedent licensing their own forms of Trumpian abuse.
In casting their ballots, serious Republicans should not allow themselves to be blinded by Dershowitz’s advocacy to the gravity of the decision before them. If they follow McConnell, they will betray the fundamental principle of checks-and-balances that has served as the very foundation of our constitutional republic since the founding.
TALLAHASSEE — Tens of thousands of Floridians hammered by a run of deadly hurricanes are eligible for almost $900 million in federal disaster aid, but three years after Hermine, Matthew and Irma tore across the state, that money has barely been touched.
The state, like many others, is caught in the bureaucratic knot that governs disaster relief funds administered by the U.S. Department of Housing and Urban Development. The program, which by design has few set rules, has long been criticized for its complexity.
Some states have coped by setting up their own bureaucracies specifically to manage HUD disaster relief block grants. Not so Florida, the state most vulnerable to hurricane damage. There, the biggest obstacle to disaster relief is the Department of Economic Opportunity, which currently is standing between residents — some living in or near poverty — and $891.5 million in HUD block grants.
The state agency has spent only $29 million of that funding as of Jan. 1, nearly $21 million of which went to Innovation Emergency Management, a consulting firm the agency hired two years ago to help navigate the grants.
Now, Florida is anticipating an additional $735.5 million from HUD for Hurricane Michael and localities still reeling from the 2018 Category 5 storm have asked Gov. Ron DeSantis if they, not the department, can manage the cash.
“It will be better to have the money right here, where the hammers are swinging, versus 100 miles away in Tallahassee,” Bay County Manager Rob Majka Jr. said. “We know our needs better than anyone else.”
HUD disaster grants are meant to support “full and swift recovery” and many states susceptible to catastrophic weather, including North Carolina, Louisiana, and New Jersey, have beefed up their bureaucracies so they can distribute the federal funds quickly after misfortune strikes.
But Florida, the country’s lightening rod for hurricanes, hasn’t. Instead, the state has left much of the tricky application process to counties with no experience and few resources. With disaster aid sitting unused, thousands of people are living in temporary housing. Schools and police departments are closing, fire halls are clinging to life. Acres of towering pines are still pinned to the ground after 155-mile-an-hour winds stripped them of their bark.
After federal auditors told the state to hire more staff and HUD labeled the state a “slow spender,” Florida is starting to retreat from its tough-love approach.
Ken Lawson, appointed executive director of the Department of Economic Opportunity when DeSantis took office a year ago, has made HUD disaster aid a top priority, department spokeswoman Tiffany Vause said.
He’s ramping up the department’s Office of Disaster Recovery, which now reports directly to him rather than residing as a subdivision of the office responsible for other, nondisaster HUD block grants.
In May, Lawson won legislative approval to transfer 18 positions at the agency to the Office of Disaster Recovery. But as of this week, only seven of those had been filled. And the state has assigned disaster recovery work to a handful of federal grant experts who already manage other programs.
Lawson has asked state lawmakers for budget authority to transfer three more positions and about $675,000 to fund temporary employees. In its budget request, the agency said money in the current budget for the 18 positions was enough to hire only a handful of people.
Despite Lawson’s efforts, local leaders say help from Tallahassee is slow in coming and they’re largely going it alone.
Florida’s Bay County and seven Panhandle cities in December issued their own action plan and have hired Illinois-based Hagerty Consulting, led by Brock Long, a former Federal Emergency Management Agency administrator who resigned in February 2019.
Municipalities took note after they watched the state struggle to make use of federal disaster aid. In 2016, after Hermine and Matthew, HUD issued rules requiring disaster block grant applicants to address long-term recovery and restoration. It offered to consider waivers for critical needs of poor communities — like many in the Panhandle — to provide additional flexibility.
In response, Florida submitted a 194-page plan that included using HUD grant money for debris removal. The plan also listed projects such as replacing ruined affordable homes and apartments.
But the Department of Economic Opportunity gave little guidance to the counties that were actually to receive the money. One St. Johns County official told POLITICO county officials would need months just to learn how the program works. Suggestions that the department allow the housing industry and its experts to take a more active role were ignored.
“They could have gotten that money on the street in just a few months,” said a housing industry executive who asked not to be identified because he has an ongoing relationship with the state. “But anything — you suggest anything — they just wall up.”
After Hurricane Matthew in 2016, HUD designated a $96 million disaster grant for coastal St. Johns County. But state officials, not local leaders, were in charge of how to spend the money. In April 2019, after two years of back-and-forth, HUD approved $21.6 million for affordable housing repair and construction.
St. Johns didn’t break ground on the first $1.5 million phase of the project until this month because the Department of Economic Opportunity had left the county to set up its own HUD disaster-funding division. The county had to build a bureaucracy from scratch before it could begin spending the money.
“We needed to build the program from the ground up,” said Joseph Giammanco, St. Johns County disaster recovery manager. “Anyone you see who can move money faster, they already had experience with this program.”
In 2019, Florida’s track record earned it the title of “slow spender” from HUD.
It wasn’t the first time the state had been called out. In September 2018, the HUD Office of Inspector General cited the Department of Economic Opportunity for not hiring enough people to manage the grant.
The agency, then under former Gov. Rick Scott, made no changes in response to the findings.
North Carolina, like Florida, once was labeled a slow spender. It shed that status in October after adding people and resources to manage federal disaster recovery funds.
When HUD approved $236.5 million in aid for North Carolina after Hurricane Matthew, most of the money sat unused for more than a year. Outrage from lawmakers and residents prompted Gov. Roy Cooper to establish the North Carolina Office of Resiliency and Recovery in October 2018.
“There was no infrastructure — there wasn’t any staff or expertise to spend the money quickly,” said Laura Hogshead, chief operating officer of the office. Hogshead now has a $4 million budget that includes money for 45 staffers skilled in areas like federal grant writing.
As of December, North Carolina had distributed more than 16 percent of the Matthew grant money, earning the state HUD’s elevated “on pace” status.
Hogshead, a former chief operations officer at HUD, said she looked to Louisiana while she built her North Carolina office. No stranger to disaster, Louisiana as of December had spent 52 percent of $1.7 billion provided by HUD after catastrophic flooding in August 2016.
By contrast, Florida as of December had spent only 2 percent of the $117 million it received for Matthew.
Patrick Forbes, executive director of the Louisiana Office of Community Development, said he learned lessons after Hurricane Katrina in 2005.
“We had so many disasters, and so many appropriations, and then allocations, that we had picked up the knowledge of doing it,” Forbes said. “That helped with building a good working relationship with HUD, too.”
Much of Louisiana’s work associated with HUD’s disaster recovery grant now is done by in-house staff.
Florida’s bureaucratic sluggishness isn’t the only reason funds have been slow to get to where they’re needed. Under President Donald Trump, HUD has been taking longer to publish rules for disaster recovery grants, according to a POLITICO analysis of Federal Register notices.
HUD took 44 days to publish rules after Congress approved the first round of funding for Hermine and Matthew in December 2016, according to a notice in the federal register. After Congress approved funding for Irma in February 2018, the agency took 193 days to write rules.
Each new set of rules is different, making the program difficult to manage, said Sam Viavattine, director of the Sandy Recovery Division of the New Jersey Department of Community Affairs.
“You’re cautious, because if you’re not, inevitably you’ll have the inspector general’s office breathing down your neck for the duration of the grant,” Viavattine said
The confusing, ever-changing rules were brought up in a 2018 HUD inspector general report that found grant recipients in 2017 had to follow 61 different federal register notices. The inspector general recommended the agency adopt a single set of rules.
DeSantis has blamed the delay in distributing disaster funds on HUD and the White House Office of Management and Budget and said he plans to meet with HUD Secretary Ben Carson.
“I know about the games being played at OMB,” DeSantis said during a December visit to Gadsden County, which was hit by Michael in October 2018. “This will be something I’ll bring up with Secretary Carson.”
In response to questions about the disaster recovery block grant program, known as CDBG-DR, HUD released a written statement from an unidentified senior agency official.
“Since every appropriations act is unique, we have to complete a different notice each time,” the official said. “Secretary Carson is just as frustrated with the process and has urged Congress to reform it so HUD does not have to start from scratch each time a disaster strikes. However, since CDBG-DR is not codified, HUD has to wait for Congress to appropriate funds on a case by case basis.”
Set rules would allow eligible states, counties and municipalities to better prepare for the already lengthy federal grant application process. The Reforming Disaster Recovery Act from, sponsored by Rep. Al Green (D-Texas), also would give HUD more oversight power to tackle corruption and misuse of funds.
“Without any laws on the books, HUD has been hesitant to enforce accountability standards,” said Sarah Saadian, senior director of public policy at the Washington-based National Low Income Housing Coalition, a nonprofit advocacy group. “There have been some cases where the money that was supposed to go to people with low-to-moderate incomes, but it went somewhere else.”
Rep. Adam Schiff read aloud an anonymous quote about what would happen to Republican senators if they voted against President Donald Trump in his impeachment trial. It did not land well.
The California Congressman, in ending the Democrats’ three-day opening salvo, was discussing the internal politics each senator must face as they consider their votes. Then he read the quote from a CBS story: That a Trump ally said “GOP senators were warned … ‘vote against the president and your head will be on a pike.'”
Several Republican senator murmured “not true” as soon as Schiff said it. Sen. Susan Collins (R-Maine) shook her head and said “not true” several times. Schiff quickly tried to recover.
“I don’t know if that’s true. But when I read that, I was struck by the irony,” Schiff said. “I hope it’s not true. I hope it’s not true.”
Dershowitz says his presentation before the Senate will draw on arguments made by Benjamin Curtis during the 1868 impeachment trial of Andrew Johnson. Curtis asserted, “when the Constitution speaks of ‘treason, bribery, and other high crimes and misdemeanors,’ it refers to, and includes only, high criminal offenses against the United States, made so by some law of the United States existing when the acts complained of were done.” The 110-page trial brief submitted by Trump’s legal team this week echoes this assertion, claiming that the “House Democrats’ Made-Up ‘Abuse of Power’ Standard Fails to State an Impeachable Offense Because It Does Not Rest on Violation of an Established Law.” Even though academic experts have rushed to reject this “bogus” argument as “constitutional nonsense,” it still could work, because, as a member of the New York Times editorial board put it, Dershowitz’s argument gives Republican senators an easy way to end the impeachment trial.
Previous critiques of the Dershowitz argument have focused on ways Congress has applied the impeachment clause over the past two centuries, impeachment trials before or at the time the Constitution was adopted and statements made by various constitutional framers. Those critiques are all worthy; however, the Dershowitz argument may have a flaw not brought out in any of them, an Achilles heel that one stroke may sever. If we examine the specific words of the Constitution—an analysis perhaps more congenial to Republican senators who praise an “original” approach to interpreting the Constitution—no one seems to be asking why the word “misdemeanor” appears in the list of impeachable offenses. The motion to dismiss may collapse if senators ask the Trump team if they are simply misreading 21st century meaning into the Constitution’s 18th century language.
Trump’s defense team seems to take the phrase “Treason, Bribery or other High Crimes and Misdemeanors” to mean that a president can be impeached for very serious crimes or less serious crimes. In any case, crimes. Such an interpretation reflects the modern meaning of “misdemeanor” as a petty offense that carries a lesser potential punishment than a felony. But why would the drafters of the Constitution stipulate that impeachment requires commission of a “high” crime if a president could also be removed for the lower bar of a petty crime? The answer may be that “misdemeanor” in the impeachment clause doesn’t refer to any kind of crime.
According to the Oxford English Dictionary, the oldest meaning of “misdemeanor” is “misconduct.” My review of a very large online database of texts from when the Constitution was drafted and ratified indicates that “misdemeanor” was used both in the sense of “petty crime” and “misconduct,” or “misbehavior,” in the Founding Era.
A 1773 newspaper excerpt from the papers of John Adams contains this quote: “If an office be granted to hold so long as he behaves himself well in the office, that is an estate for life, unless he lose it for misbehaviour; for it hath an annexed condition to be forfeited upon misdemeanor, and this by law is annexed to all offices, they being trusts; and misdemeanors in an office is a breach of trust.” (Emphases added.) A 1796 state court decision from South Carolina stated that a judge “is liable for misdemeanors in office, and subject to impeachment for misconduct if he misbehaved.” Notably, both of these examples—in which “misdemeanor” was used interchangeably with “misconduct” or “misbehavior”—refer to removing a public official for cause without any reference to commission of a crime.
In addition, both before and after ratification of the Constitution, state constitutions authorized removal from office using the word “misdemeanor,” again without reference to commission of a crime. The 1776 Constitution of Maryland provided that “the House of Delegates … may expel any member, for a great misdemeanor.” The 1790 Pennsylvania Constitution had an impeachment clause that tracked the U.S. Constitution’s almost word-for-word except that the list of impeachable offenses for state officials is shortened to only misdemeanor: “The governor, and all other civil officers under this commonwealth, shall be liable to impeachment for any misdemeanor in office.” The 1792 Kentucky Constitution had an impeachment provision virtually identical to that of Pennsylvania.
The proceedings of the Constitutional Convention strongly indicate that one of the most influential framers of the Constitution, James Madison, understood “misdemeanor” as having a different and broader meaning than criminal acts. In the waning days of the convention, on September 8, 1787, Virginia delegate George Masonmoved to add “maladministration” to the existing list of impeachable offenses—at that point, only “Treason or Bribery.” Madison objected that “so vague a term [as maladministration] will be equivalent to a tenure during pleasure of the Senate.” Mason responded by withdrawing his motion and substituting “other high crimes and misdemeanors against the state.” Mason’s revised motion passed 8-3, which is how the “high crimes and misdemeanors” language got into to the Constitution.
The Trump defense team has seized on Mason’s substitution of “high crimes and misdemeanors” for “maladministration” as supporting its contention that impeachment must be based on commission of a crime. However, the story looks quite different if we—literally—turn the page. As reported on the very next page of the records, after Mason’s motion passed, Madison then argued (unsuccessfully) for changing the venue for impeachment trials from the Senate to the Supreme Court, saying that if the president can be impeached “for any act which might be called a misdemesnor [sic]”, the president “under these circumstances was made improperly dependent” on the Senate.
Madison’s statement seems to tell us two things: First, he did not see “misdemeanor” in the amended impeachment clause as a term with well-defined limits, as would be the case if it instead said statutory violations or crimes. Instead Madison suggested that many kinds of acts “might be called” a misdemeanor. Second, Madison saw inclusion of “misdemeanors” in the impeachment clause as giving the Senate greater discretion to remove the president than just the phrase “other High Crimes.” Madison’s motion to move the venue of an impeachment trial from the Senate, where he feared a president’s political opponents could misuse the wide latitude the word “misdemeanor” affords, to an assumed apolitical Supreme Court failed on a 9-2 vote. But the language of what a president can be impeached for remained, leaving the Senate with what Madison considered to be very broad discretion to remove a President for “any act which might be called a misdemeanor.”
In the end, both advocates and opponents of impeachment might be focusing on the wrong word, “crimes.” Abuse of power and obstruction of Congress, as alleged in the House’s articles of impeachment against Trump—even if not crimes—could well be considered “misdemeanors,” meaning “misconduct,” specifically misconduct in office. This could provide the basis for impeachment and removal. Ironically, it may be that Dershowitz was far more correct 22 years ago than he is today.