Battle over Impeachment Trial Witnesses Heats Up

Tomorrow, the impeachment trial of Donald Trump will get started without a clear idea of what the rules are. The hottest potato is whether witnesses and documents will be subpoenaed. Democrats want that to happen and Republicans don't. That was clear from the Sunday news shows yesterday.

A number of the House impeachment managers, including Democratic Reps. Adam Schiff (CA), Jerrold Nadler (NY), Hakeem Jeffries (NY), and Jason Crow (CO) appeared on the shows to say that without witnesses and documents, it would be impossible to conduct a fair trial. Schiff, in particular, pointed out that previous impeachments have all had witnesses, so why not this one?

However, Republican Sens. John Cornyn (TX) and David Perdue (GA) also got on television, arguing that the evidence the House collected is enough for a fair trial and that nothing more is needed. Cornyn also said that if the evidence the House assembled isn't strong enough to make the case that Trump needs to be removed from office, then the House should withdraw the articles of impeachment, and maybe even start all over again. Cornyn also said that if the Democrats nevertheless get their way and witnesses are called, Republicans should be also be able to call their chosen witnesses as well. He named Hunter Biden as his first choice.

House Democrats foresaw the Republicans' arguments (not hard to do, in this case), and they already have a counter-response ready: If the Senate doesn't call the new witnesses who have presented themselves (especially former NSA John Bolton and former Trump associate Lev Parnas), then maybe the House Judiciary Committee will call them instead. It's not clear that all House Democrats are on board with that plan, at least not yet, but they will probably get there. Such an approach would be something of a lose-lose for Senate Republicans, as whatever dirt Bolton/Parnas have to spill would still see the light of day, while at the same time the GOP would still look like they were running a sham trial. So, the Democrats' threat (or is it a bluff?) could get some members of Majority Leader Mitch McConnell's (R-KY) caucus thinking.

So far, only three Republican senators have said they are potentially open to calling witnesses: Susan Collins (ME), Lisa Murkowski (AK), and Mitt Romney (UT). That is one shy of the number needed, assuming all the Democrats vote to subpoena witnesses. One complication here is the role Chief Justice John Roberts plans to play. If he makes a ruling, it will be harder politically for Republicans to override him than if he hides under his desk and lets McConnell run the show. As we've noted a few times, Roberts will be taking many of his cues from Senate parliamentarian Elizabeth MacDonough, so if she believes the Democrats are allowed to call witnesses, that could be definitive.

Republican senators weren't the only ones defending Trump on television yesterday. One of Trump's lawyers, Alan Dershowitz, was on ABC's "This Week," arguing that even if everything the impeachment managers say is true, there are no grounds to convict Trump. In his view, which he and the President's other lawyers (more on them below) will present to the Senate, only a violation of a specific statute would qualify as a reason for conviction. Abuse of power and contempt of Congress are too vague to qualify. He added that half of all presidents have be accused by their opponents of abusing their power, so that argument just doesn't fly at all. (V & Z)

Trump Has His Defense Team

In the last 72 hours, Donald Trump has formalized and introduced the team of lawyers who will defend him in his impeachment. Here they are:

• Jay Sekulow: Sekluow, of course, has been the President's foremost "private" lawyer for over a year, and has been a loyal member of Team Trump for much longer than that. Since the Donald does not pay his attorneys well (if and when he pays them at all), Sekulow makes most of his money working for evangelical Christian groups, most notably the American Center for Law & Justice, for whom he serves as chief counsel. Sekulow is himself a messianic Jew (basically, a Jew for Jesus), a movement that some mainstream Jews regard as a cult, or as anti-Semitic. He has been credibly accused of redirecting millions in charitable donations to his own pocket.
  
  
• Pat Cipollone: Cipollone, of course, has been the President's foremost "government" lawyer for over a year, serving as White House counsel. Publicity-shy, he prefers to operate outside the spotlight, and is known for his networking skills (he's a long-time friend and associate of AG Bill Barr and Fox News personality Laura Ingraham). It is generally understood that Cipollone is responsible for the administration's strategy of stonewalling Congress all the time, every time.
  
  
• Alan Dershowitz: Dershowitz served on the faculty of Harvard Law for half a century, and was noted for his extensive publication record and his willingness to take on highly controversial clients (O.J. Simpson, Claus von Bülow, Patty Hearst, Mike Tyson, Jim Bakker, etc.). Though he says he's a Democrat, he's been an unflinching supporter and defender of Trump, and has regularly railed against impeachment. Other lawyers have found his analysis unpersuasive, and wonder if his best years as a legal mind are long behind him. Dershowitz was a friend and lawyer for Jeffrey Epstein, and has been accused of joining the now-deceased convicted sexual offender in committing acts of sexual assault, something that Dershowitz denies.
  
  
• Kenneth Starr: Starr became a household name as Bill Clinton's nemesis, spending many years as special counsel looking for something—anything—that he could pin on Bubba before he stumbled across "whistleblower" (emphasis on "blow") Linda Tripp. Starr's role in the last presidential impeachment is undoubtedly what prompted his involvement in this one, even though back then, Trump described Starr as "terrible," "a lunatic," and "a disaster." Expect the very loud opinions Starr expressed back in 1999, like "it is very important to call witnesses" will be brought up by Democrats once or twice during the current proceedings. Since leaving government work, Starr has had a checkered career as a pundit and academic. In particular, he was forced out as president of Baylor University for looking the other way when members of the football team were charged of sexual assault.
  
  
• Robert Ray: He has worked extensively in both the private and public sectors; his experience in the latter includes a stint as U.S. Attorney for the Southern District of New York, and also work as a Clinton-era special counsel, succeeding Ken Starr in that role. Undoubtedly, Trump was attracted by Ray's government work, but also by his staunch pro-Trump commentaries on Fox News and his reputation for being willing to bend the law to its breaking point.
  
  
• Pam Bondi: Bondi is the former Florida AG who launched an investigation into the Trump Foundation's misuse of funds, and then dropped the investigation after receiving a generous donation to her reelection campaign...from the Trump Foundation. After leaving office in January of last year, she worked for a lobbyist on behalf of the Qatari government, and then was hired as a member of the White House's communications team. Whether or not her lobbying work stopped when her White House work commenced is not known.
  
  
• Jane Raskin: Like Cipollone, she prefers to fly under the radar. She was first hired by Trump, along with her husband Martin, to help deal with the Mueller investigation. She's worked as a federal prosecutor in addition to her private practice work.
  
  
• Patrick Philbin and Mike Purpura: Both of these men are currently serving as deputy White House counselors, worked in the Bush administration Justice Department, and have served as "go-betweens" when the administration needed to deal with members of Congress.
  
  
• Eric Herschmann: It appears he was the last member of the team to be added. He works for the same firm as Marc Kasowitz, one of Trump's long-time lawyers, and has served in the past as an assistant district attorney for the borough of Manhattan.

Looking over the list, a few points come to mind:

• The Deplorables: There are a few folks here, most obviously Starr, who would be all-but-untouchable for anyone but Trump. There are things the President values; a clean résumé isn't one of those things.
  
  
• Loyalists: Though not all of these folks have a spotless record, the one thing they do have in common is a demonstrated history of staunchly defending Trump. It's the job of all lawyers to provide a vigorous defense for their clients, but a fair number of these folks have shown a willingness to take that to extremes. The President likes that.
  
  
• TV Lawyers: Reportedly, Trump simply does not understand why he's been impeached, even now. Maybe that's so, but one thing he does understand is that this is a political process as much as a legal one. And so, he has made a point of selecting folks whose job will clearly be to go on Fox News and other television programs and spin, spin, spin. This is in the wheelhouse of Starr, Sekulow, Bondi, and Dershowitz, in particular, so get used to seeing those faces a lot in the next 4-8 weeks.
  
  
• Pleasing the Base: As with Speaker Nancy Pelosi (D-CA), Trump also chose his team with an eye toward the base, making sure to get some staunch evangelical/Christian/pro-Israel folks on there, as well as some women, some folks representing each of the various parts of the country, and some notable "lib owners" (most obviously Starr). Put another way, this is the legal "dream team" you would get if the job of putting together your defense was in the hands of Rush Limbaugh.
  
  
• Actual Lawyers: That said, some of these folks are going to do the actual legal work while their colleagues are performing on TV. It is likely that Cipollone will be the lead "actual lawyer," and that his main lieutenants will be Philbin, Purpura, Herschmann, and possibly Raskin.
  
  
• Too Many Cooks?: It may be tough for all of these folks to stay on the same page, strategy- and messaging-wise, since most are forceful personalities, and they don't necessarily see eye-to-eye on everything. For example, there is a history of bad blood between Starr and Dershowitz.

In any event, the dramatis personae are all in place, and it's time to raise the curtain. (Z)

Klobuchar and Yang Supporters May Be Kingmakers in Iowa

New rules that will be implemented by the Iowa Democratic Party for the first time next month, may give the supporters of Sen. Amy Klobuchar (DFL-MN) and Andrew Yang outsized power in the Iowa caucuses to be held in 2 weeks. The Party has long had a rule that candidates getting too few votes in the initial round (generally 15%, but sometimes more in very small precincts) are nonviable and have to find a new home in the second round. This process is called "realignment," and has changed this year. In the past, during realignment, every caucusgoer was free to change horses on the second round. That took a long time, as caucusgoers often went shopping for a new candidate to support. To streamline the process, this year only supporters of a nonviable candidate may look for a new candidate. People who supported a viable candidate are locked in this year and cannot switch to a different viable candidate, as they could in the past.

The current expectation is that neither Klobuchar nor Yang will be viable, but together could represent 12-15% of the votes. If all of their supporters pick the same viable candidate in the second round, that could put that candidate over the top. Consequently, during the entire process, a lot of attention will be paid to them, with the intention of influencing their second choice. An important factor here is that voting at the caucuses is not by secret ballot. Everyone knows how all their neighbors and friends voted, and that could influence the outcome. (V)

White College-Educated Democrats Can't Make Up Their Minds

One highly-sought-after demographic consists of white, college-educated voters. They make up close to a quarter of the Democratic electorate, and they can't decide who they are going to vote for in the primary. They have been flitting from candidate to candidate for months, and still don't know how they are going to vote. The problem is that they like too many of the candidates and choosing just one is tough.

In early 2019, Joe Biden was their favorite, with 32% support. As the year wore on, many of them jumped ship to Sen. Kamala Harris (D-CA), but she dropped out. Sen. Elizabeth Warren (D-MA) was also popular with this group, but she may have peaked too early. Lately, Sen. Bernie Sanders (I-VT) and Mayor Pete Buttigieg (D-South Bend) are picking up steam with them. Still, a large number haven't made up their minds.

All the candidates are actively courting this group, not only to get their votes, but also to get their donations. As a whole, the top priority of these voters is defeating Donald Trump, so all the candidates are pitching their electability. That's harder to sell than specific campaign promises, which is why their support is jumping from candidate to candidate. After the Iowa caucuses, we will have a bit better idea of who finally came out on top. (V)

New York Times Makes Double Endorsement

As the college-educated voters from the above item try to figure out which candidate they like, some will undoubtedly turn to the "paper of record" for guidance. As it turns out, however, even the New York Times' editorial board can't decide. And so, in a new and different approach to the process, they have endorsed two candidates: Elizabeth Warren and Amy Klobuchar, whom the board describes as the most effective standard-bearers of, respectively, the "radicalist" and "realist" wings of the Democratic Party.

In terms of the "radicalist" wing, the Times is impressed with Bernie Sanders' history of raising important issues and redirecting the national conversation, but they find him to be divisive and not terribly pragmatic. In Warren's case, they feel she sometimes aims too high, but that she will be better at utilizing the levers of power, and that she's a more effective uniter than the Vermont Senator.

As to the "realist" wing, the board thinks Pete Buttigieg is promising and Andrew Yang is refreshing, but neither has enough experience to occupy the big chair at this point. They like the fact that Michael Bloomberg has extensive public- and private-sector experience, but are non-plussed by his campaign-via-checkbook. And they argue that Joe Biden is too backwards-looking, and lacks ideas beyond "let's go back to where things were under Barack Obama." Klobuchar, they conclude, is much more forward-looking, and has solid foreign-policy credentials and a track record of success, even if she's a bit rough around the edges and sometimes comes off as prickly.

The Times' support comes at the exact time that Warren and Klobuchar are looking for a boost. And generally speaking, if they're hoping to get it from a newspaper endorsement, they are in the wrong century. That said, the Times is an influencer among Democrats (especially college-educated ones), unusual endorsements (like a dual endorsement) tend to get attention, and many Democrats are clearly looking for a "tiebreaker" as they try to figure out which candidate should get their vote. So, the Times' opinion just might move the needle, at least a little. (Z)

Jayapal Endorses Sanders

While many Democratic members of Congress are carefully avoiding endorsing any of the presidential candidates, one especially high-profile member, Rep. Pramila Jayapal (D-WA), a co-chair of the progressive caucus, has made a decision. She has endorsed Bernie Sanders. Sanders now has the endorsement of both co-chairs, the other one being Rep. Mark Pocan (D-WI).

Jayapal's decision has to be a big disappointment to Elizabeth Warren, who actively sought her endorsement but didn't get it. She will now play an important role in Sanders' campaign, especially supporting his plans for Medicare for All, an area that falls within her expertise. (V)

Supreme Court Meets the Electoral College

The Supreme Court and the Electoral College are two institutions specifically created by the Constitution. They are about to meet head on. Two cases that have going to be decided revolve around "faithless electors;" that is, electors who cast their electoral votes for someone other than the candidate who won their state. These cases go to the heart of what the Electoral College means and why it was created.

First, a bit of history. At the time the Constitution was written, there were no political parties. Furthermore, most people then (and a lot of people even now) didn't know beans about politics and certainly didn't know who was and was not qualified to be president. So, the Founding Parents decided on a system in which the people would pick wise men (and conceivably women, although women didn't have the regular vote at the time) who would meet in their respective state capitals in December to choose the president. At the time, electors were definitely not bound to particular candidates and were expected to use their discretion in picking a president.

In the course of the years, many states have adopted laws specifying that the electors are required to vote for the person who got the most votes in their state (or congressional district, in the case of Maine and Nebraska). In some of them, the states have granted themselves the authority to replace or to fine electors who vote for a candidate other than the one to whom they are pledged. The cases heading to the Supreme Court are due to one Michael Baca, a Colorado elector who voted for John Kasich instead of Hillary Clinton, and to three Washington State electors who voted for Colin Powell, even though Hillary Clinton won the state. Each of the four was fined $1,000 for bad behavior and made to sit in the corner with a dunce cap on (ok, not really, but the fines are real). In other states, six electors were faithless, but their states didn't take action against them. The question before the Court is simple: Can electors vote for anyone they want to, or can states negate their electoral votes and/or punish them for being faithless?

If electors are free agents and can cast their electoral votes for anyone who is constitutionally eligible to be president (e.g., Rush Limbaugh, Nancy Pelosi, etc.), we could have a situation in which after the electors are chosen, the candidates start offering them bribes to vote for them. Running an auction on eBay definitely wouldn't fly, but you get the idea. So the Supreme Court needs to decide once and for all whether states can compel electors to vote for the winner in their state (or congressional district). The hearing will be in April and the decision is expected in June. (V)

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---The Votemaster and Zenger