Impeachment trial: Republicans don't have the votes yet to block witnesses

Rudy Giuliani associate Lev Parnas wanted to attend the Senate impeachment trial Wednesday, but his lawyer, Joseph Bondy, said it couldn't be arranged "because his GPS ankle monitor is not allowed" in the Capitol. Parnas will still be in Washington, however, "to show support for a fair trial, with witnesses and evidence."

A few days ago, Parnas provided Congress with a recording of an April 2018 dinner with President Trump, during which Mr. Trump could be heard ordering an aide to "take out" then-U.S. ambassador to Ukraine Marie Yovanovitch.

McConnell doesn't have the votes to block witness testimony yet, a GOP source tells CBS News. A handful of Republican senators are still undecided and want to see how the Q and A session goes before making their decision. 

Senators Mitt Romney and Susan Collins have both publicly expressed being open to voting to subpoena witnesses. In addition, the White House is concerned Senators Lamar and Lisa Murkowski would also vote in favor of hearing witness testimony.  

"We need to chisel four down to two," a White House official tells CBS News. "We are comparing notes with the leader's office. I would say we are at DEFCON 2."

Should any vote end in a 50-50 tie, Chief Justice Roberts would be called on to cast the deciding vote. The White House is confident Roberts would not break the tie in favor of hearing witness testimony, but would prefer the vote fail outright, the official said.

— Major Garrett, Nancy Cordes

Senate Majority Leader Mitch McConnell wasn't kidding when he asked senators to be "thoughtful and brief" with their questions. Senators who wish to ask questions of the House managers or president's defense team will have a spare six lines to write questions for Chief Justice John Roberts to read aloud during the 16-hour Q&A period. 

In an interview with "CBS This Morning," Republican Senator Susan Collins said she is "very likely" to vote in favor of allowing witnesses in the impeachment trial. Senate Democrats need four Republicans to vote to hear from witnesses in order to get a majority, and Collins has said for weeks that she is inclined to hear more testimony.

"I'm pleased that every senator will have the opportunity to vote on whether or not additional witnesses and documents are necessary," Collins said. "It is very likely that I'm going to conclude that, yes, we do need to hear from witnesses."

"I, for one, believe that there's some gaps, some ambiguities that need to be cleared up," Collins continued.

Collins also said she has already written "a great number" of questions to ask the House managers and White House legal team in the next phase of the trial, which begins Wednesday. Senators will submit written questions to the chief justice, who will pose them to either side.

Schiff said the president's legal team simply laid out a laundry list of grievances while inadvertently making the case for why the Senate needs witnesses and documents, Schiff said. 

"The question that lies with the Senate now is whether the chamber will have a fair trial," Schiff said. "A fair trial involves witnesses, and it involves documents."

Schiff said the House managers have more work to prepare ahead of any Bolton testimony, but will be ready if and when that time comes. Schiff said the Senate shouldn't wait until Bolton's book comes out to hear what he has to say.

He also pushed back against the proposal from some Republicans that there should be a one-for-one trade on witnesses, meaning that Democrats get to hear from John Bolton if Republicans hear from Joe or Hunter Biden.

"If they want a witness for witness, then let them call Mick Mulvaney," Schiff said, as Mulvaney may contradict Bolton's recollection. "Let them call people who are percipient witnesses to this scandal and this corrupt scheme."

Speaking to reporters following the end of opening arguments from Mr. Trump's lawyers, Schumer said concluding remarks from Sekulow in particular "showed how weak their case was" and accused the legal team of skirting the issue that Mr. Trump invited a foreign government to interfere in the 2020 presidential election.

"Their whole argument is diversion," he said. "If you don't believe the newspaper report, call the witnesses. If you don't believe the people around who said what Trump did was wrong and they had heard it second hand,  [EU Ambassador Gordon] Sondland heard it first hand, call Mulvaney, call Bolton, call Blair, call Duffey."

Schumer said the defense of Mr. Trump presented by his legal team was "extremely weak on one of the most serious things you can accuse a president of doing, which is organizing foreign interference in American elections."

Schumer warned that if Mr. Trump is acquitted on the charges of abuse of power and obstruction of Congress, he will repeat his conduct and set a dangerous precedent for his successors.

"This grand experiment we call democracy will have been fatally, fatally eroded becaused when Americans lose faith that elections are fair, when Americans lose faith that it's Americans determining who elects the president rather than a foreign power, we've got trouble," the minority leader said.

Following the end of arguments from Mr. Trump's legal team, McConnell provided senators with a roadmap for the written question round of the proceedings, which he said Schumer agreed to.

The next phase will last two days beginning Wednesday, when the Senate will reconvene at 1 p.m. Senators will have up to eight hours during that session to submit written questions to each side. Questions will alternate between the Republicans and Democrats, McConnell said.

On Thursday, the Senate will resume time for written questions, again alternating between the majority and the minority parties, with up to eight hours allotted for the queries of the president's lawyers and House managers.

Questions must be in writing and submitted to the chief justice. McConnell urged his colleagues to be "thoughtful and brief," as they were during the impeachment trial for President Bill Clinton in 1999, and encouraged the House managers and president's counsel to be "succinct" with their answers.

"I hope we can follow both of these examples during this time," McConnell said.

Roberts quoted the late Chief Justice William Rehnquist's advice to counsel on both sides when he presided over the proceedings in 1999 "that the chair will operate on a rebuttable presumption that each question can be fully and fairly answered in five minutes or less."

"The transcript indicates that the statement was met with 'laughter,'" Roberts said to laughs of his own in the Senate chamber. "Nonetheless, managers and counsel generally limited their responses accordingly. I think the late chief's time limit was a good one and would ask both sides to abide by it."

The trial then adjourned until 1 p.m. Wednesday.

White House counsel Pat Cipollone urged the Senate to end the "era of impeachment" and reject the charges against Mr. Trump in remarks concluding opening arguments.

"Why not trust the American people with this decision? Why tear up their ballots? Why tear up every ballot across this country?" Cipollone said. "You can't do that. You know you can't do that."

The American people, he added, "are entitled to choose their president."

"The Senate cannot allow this to happen," Cipollone said. "It is time for this to end here and now."

A White House official expressed frustration over the reports about the contents of Bolton's book and his eagerness to talk now. The source argued the decision of whether to waive executive privilege is the president's to make, not Bolton's.

The official questioned why Bolton is trying to needle the White House by sharing information that, if true, is privileged, according to the source, who framed Bolton's words as an act of disloyalty. The source suggested Bolton perhaps dislikes the president. 

The White House official added that the president gave Bolton a long leash to run his office as he saw fit when he was national security adviser. When Bolton had to report through the president, Bolton treated it like a burden, the source said. 

The official conceded the White House's response to Bolton's book revelations, however, has lacked clarity.

Jay Sekulow, Mr. Trump's lawyer, said the impeachment process laid out by the founders requires the Senate to rise above the political fray and cast aside "leaks and unsourced manuscripts," a reference to Bolton's yet-to-be-published book that reportedly claims the president linked aid to Ukraine to investigations into his political rivals.

"What we are involved in here as we conclude is perhaps the most solemn of duties under our constitutional framework: the trial of the leader of the free world and the duly elected president of the United States," Sekulow said. "It is not a game of leaks and unsourced manuscripts. That's politics unfortunately, and Hamilton put impeachment in the hands of this body, the Senate, precisely and specifically to be above that fray."

During his concluding remarks, Sekulow invoked former FBI Director James Comey and special counsel Robert Mueller's investigation into Russian meddling in the 2016 presidential election, as well as Lisa Page and Peter Strzok, the former FBI officials found to have exchanged derogatory messages about Mr. Trump.

"You can't view this case in a vacuum," he said, stressing that senators are "being asked to remove a duly-elected president of the United States."

"You're being asked to do it in an election year," Sekulow said. "There are some of you in this chamber right now that would rather be someplace else."

Sekulow said senators, acting as jurors, are being asked to remove the president based on "policy differences."

"You can impeach the president of the United States for asking a question?" he said.

Sekulow stressed that Mr. Trump's conduct does not rise to the level of impeachment and cited statements from the president, vice president's chief of staff and the Justice Department that refuted the details of Bolton's manuscript revealed by The New York Times.

"You cannot impeach a president on an unsourced allegation," he said, claiming the manuscript is "inadmissible."

While Sekulow suggested The Times' reports on the manuscript are "unsourced," the documents belong to Bolton and neither he nor his attorney refuted the details of the articles.

Sekulow also seemed as if he were attempting to head off the need for additional testimony from Bolton or other witnesses.

"Are you going to allow proceedings on impeachment to go from a New York Times report about someone that says what they hear is in a manuscript? Is that where we are? I don't think so. I hope not," he said.

The Senate has reconvened for the seventh day of the impeachment trial. The White House legal team is expected to conclude their arguments today, and the Senate will likely move to the question and answer portion of the trial tomorrow.

"Our goal is to be finished by dinner time," White House counsel Pat Cipollone said.

White House deputy counsel Patrick Philbin took the floor for the first presentation.

Former White House chief of staff John Kelly said he believes Bolton's reported claims in his unpublished manuscript, details of which were revealed by The New York Times this week.

"If John Bolton says that in the book, I believe John Bolton," Kelly said during an event in Sarasota, Florida, according to the Sarasota Herald-Tribune.

The New York Times reported Sunday that Bolton recalls in the manuscript a conversation with Mr. Trump during which the president ties aid to Ukraine to investigations into his political rivals. The president denied Bolton's assertion in a midnight tweet and said if Bolton did make such a claim, it was "only to sell a book."

Kelly, who served as White House chief of staff for 18 months and worked alongside Bolton, said the former national security adviser "always gave the president the unvarnished truth."

"John's an honest guy," Kelly said. "He's a man of integrity and great character, so we'll see what happens."

The retired Marine Corps general also said he is in favor of calling witnesses during the impeachment trial, the Sarasota Herald-Tribune reported.

"If there are people that could contribute to this, either innocence or guilt, I think they should be heard," he said, adding some of the discussions that occurred regarding the military assistance to me Ukraine "seem to me to be very inappropriate."

Kelly left his post at the White House months before Mr. Trump's July 2019 phone call with Ukrainian President Volodymyr Zelensky that sparked the impeachment effort.

Senate Minority Leader Chuck Schumer told reporters Tuesday that he would not negotiate with Republicans over calling witnesses before the Senate, responding to a Republican proposal to hear from John Bolton in return for testimony from Joe or Hunter Biden.

"We're not bargaining with them," Schumer said, reiterating his demand that Bolton and three other officials testify. 

Schumer also addressed a proposal floated by Republican Senators Lindsey Graham and James Lankford to allow senators to review a copy of Bolton's manuscript in a classified setting.

"What an absurd proposal. It's a book! There's no reason for it to be read in the SCIF unless you are trying to hide something," Schumer said.

Schumer said the "drip, drip, drip" of new information about Ukraine was "reminiscent of Watergate."

"The details from Ambassador Bolton get to the very heart of the first article," Schumer said, referring to the article of impeachment on abuse of power. Schumer also called out most Republicans for their seeming unwillingness to call witnesses.

"At this point, how can Senate Republicans not vote for the witnesses and documents we are seeking?" Schumer said.

Schumer called the White House legal team's accusations against the Bidens a "shiny object" to divert attention from the president's own misdeeds.

The Republican National Committee (RNC) is paying at least some of the legal fees for the president's attorneys, a spokesman said. The Washington Post reported the RNC is paying for Jay Sekulow and Jane Raskin specifically, and cited campaign finance records showing payments totaling $225,000 through last November.

Mike Reed, the RNC's deputy chief of staff for communications, defended the RNC's assistance.

"We are more than happy to cover some of the costs of defending the President from this partisan impeachment sham. RNC payments for these legal fees come from a pre-existing legal proceedings account and do not reduce by a dime the resources we can put towards our political work," Reed said in a statement. — Kristin Brown

Republican Senator Lindsey Graham of South Carolina, a key ally of Mr. Trump's, said he backs a plan for senators to have access to the unpublished manuscript from former national security adviser John Bolton in a classified setting.

"I totally support @SenatorLankford's proposal that the Bolton manuscript be made available to the Senate, if possible, in a classified setting where each Senator has the opportunity to review the manuscript and make their own determination," Graham tweeted.

Bolton's book, titled "The Room Where it Happened," does not hit shelves until mid-March. But the details of the unpublished manuscript were revealed by The New York Times in a pair of stories published Sunday and Monday. (The book is being published by Simon & Schuster, a subsidiary of ViacomCBS.)

Charles Cooper, Bolton's attorney, said the manuscript was submitted to the National Security Council in December for a review for classified information. The New York Times, meanwhile, cited "people familiar with the manuscript" who described its contents. 

The explosive details reported by The Times hung over Monday's trial proceedings, though it was scarcely mentioned by Mr. Trump's legal team.

McConnell told reporters it's "safe to say" senator questions won't begin until Wednesday, giving lawmakers more time to prepare questions and increasing the likelihood that Tuesday's proceedings will end earlier than usual. — Alan He 

A senior administration official deeply involved in the White House impeachment strategy said the president's legal team will wrap up its defense in the late afternoon on Tuesday, between 5 and 6 p.m. at the latest. The official predicted, based on conversations with Senate GOP leadership, that Majority Leader Mitch McConnell will then move to adjourn the Senate for the day. It is the White House's assumption that the motion will not draw an objection from Senate Democrats.

Under this scenario, the president's legal team, again in consultation with Senate GOP leadership, predicts the question-and-answer section of the trial would begin Wednesday and carry into Thursday. Under the organizing resolution, 16 hours are provided for Q&A and the White House legal team, again in consultation with Senate GOP leaders, believes the questions will rotate from one party to the other. It is currently assumed a Republican would ask the first question, but that has not been determined. 

Senators submit questions to the chief justice, who addresses them to either side. The rules discourage and generally prohibit direct interaction between House managers and the president's attorneys. In theory, every senator can ask a question. It is assumed both Republicans and Democrats will coordinate and designate key questions to certain senators. The hope, the senior official said, is 10 to 15 questions could be asked and answered per hour. 

The White House legal team, according to this official, will go question-for-question with Democrats — even if that means repeating some questions. This is to prevent Democrats from dominating proceedings with questions for any extended period of time.

If this scenario plays out as currently imagined, the senior official said, the key vote on whether to seek additional documents or depositions of additional witnesses would occur Friday. It is worth noting that vote is a debatable question and under the organizing resolution there would be four hours of debate, equally divided. On that question, House managers would advocate in favor, White House lawyers would oppose and House managers would be allowed to close — similar to the process on amendments offered to the organizing resolution.

Republican Senator Pat Toomey of Pennsylvania has raised with colleagues the idea of an agreement with Democrats in which each side would be allowed to call a single witness. The Washington Post first reported the "one-for-one" proposal on Monday.

There was some discussion of the idea among Senate Republicans at a lunch on Monday, but nothing solid or definitive emerged, a GOP Senate adviser told CBS News. Romney also spoke strongly about the need for Bolton to testify, this person said.

It's unclear whether there is any support for such a deal among Democratic senators, who have been universally opposed to calling Hunter Biden to testify. 

After hours had passed without the president's legal team addressing the explosive allegations from Bolton as reported by The New York Times, Alan Dershowitz addressed them head on.

"It follows from this that if a president, any president, were to have done what the Times reported about the content of the Bolton manuscript, that would not constitute an impeachable offense," Dershowitz said. "Let me repeat. Nothing in the Bolton revelations, even if true, would rise to the level of an abuse of power or an impeachable offense. That is clear from the history, that is clear from the language of the Constitution. You cannot turn conduct that is not impeachable into impeachable conduct simply by using words like 'quid pro quo' and 'personal benefit.'" 

Dershowitz made the comment in making his case that even abuse of power is not an impeachable offense, nor is engaging in a quid pro quo.

Alan Dershowitz attempted to explain why he appeared to change his mind on when a president's conduct rises to the level of an impeachable offense.

During the impeachment of former President Bill Clinton, which Dershowitz also opposed, Dershowitz claimed a president does not necessarily need to commit a crime in order for some action to be impeachable. 

"It certainly doesn't have to be a crime if you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty, you don't need a technical crime," Dershowitz said in 1998.

But since then, Dershowitz said, he's read up on all the relevant material and come to the conclusion that it's likely necessary for some action to be criminal in order to be impeachable. That, Dershowitz claimed, is what academics do when confronted with new information — they change their minds. Dershowitz told CNN last week he's simply "far more correct" now than he was in 1998.

Dershowitz pointed out he's not the only person in the Senate chamber to change his mind. Some members in the chamber who now oppose impeachment supported it in Mr. Clinton's case, and vice versa. 

Harvard Law professor Alan Dershowitz began his argument against Mr. Trump's impeachment shortly before 8:00 p.m. Dershowitz is a controversial figure, as he has previously represented O.J. Simpson and Jeffrey Epstein.

Dershowitz, who voted for Hillary Clinton in 2016, argued that he would make the same argument if a Republican House was impeaching President Hillary Clinton on these impeachment articles. Dershowitz was an opponent of former President Bill Clinton's impeachment, although he did say in an interview with Larry King at the time that he didn't think a president needs to commit a crime in order to be impeached.

"I am here today because I love my country and our constitution," Dershowitz said.