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Democrats Suggest White House Counsel Could Be Subject To Recusal From Impeachment Trial

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WASHINGTON, January 21, 2020 — The five Democratic lawmakers charged with prosecuting the House’s case for the Senate to remove President Trump from office have called on his top White House lawyer to disclose information on the extent to which he is a witness in the case, a status which might require that he himself from the president’s defense team.

In a letter sent Tuesday to White House Counsel Pat Cipollone, Reps. Adam Schiff, Jerrold Nadler, Zoe Lofgren, Hakeem Jeffries, Jason Crow, Val Demmings and Sylvia Garcia wrote that the ethics rules governing attorneys’ conduct require that he recuse himself because he is a witness to the charges laid out in both articles of impeachment against the president.

“In preparation for the trial of Donald J. Trump before the Senate, we write to notify you that evidence received by the House of Representatives during its impeachment inquiry indicates that you are a material witness to the charges in both Articles of Impeachment for which President Trump now faces trial,” the managers said.

Cipollone’s “status as an unsworn witness,” they added, “risks seriously damaging the fairness of the trial” because he could end up presenting what amounts to testimony while presenting Trump’s defense.

Specifically, the managers explain that Cipollone’s role as White House Counsel places him in a direct supervisory role over National Security Council attorney John Eisenberg, to whom Trump’s former top Russia advisor, Dr. Fiona Hill, and his top Ukraine advisor, Lieutenant Colonel Alexander Vindman, reported their concerns over attempts by other Trump administration officials to tie a White House meeting between Trump and Ukrainian President Volodymyr Zelensky to the announcement of investigations into former Vice President Joe Biden’s family and a discredited conspiracy which posits that Ukraine — not Russia — interfered in the 2016 election.

Additionally, the managers say that Cipollone’s office’s involvement in the decision to place records of Trump’s July 25 call with Zelensky on a system reserved for information classified above “top secret” and his authorship of an October 8 letter declaring that the White House would not cooperate with the House’s impeachment inquiry make him a witness to the president’s attempts to obstruct Congress’ investigation of his conduct.

“[T]o the extent you plan to serve as the President?s legal advocate
during the Senate trial proceedings, at a minimum, you must disclose all facts and information as to which you have first-hand knowledge that will be at issue in connection with evidence you present or arguments you make in your role as the President?s legal advocate so that the Senate and Chief Justice can be apprised of any potential ethical issues, conflicts, or biases,” they demanded.

While attorneys for Trump did not immediately reply to Breakfast Media’s requests for comment, the request is likely to prompt the president’s lawyers to reiterate demands for Schiff, a California Democrat who is the lead House manager, to recuse himself in turn.

Republicans in Congress and Trump himself have repeatedly claimed that Schiff and his staff coordinated the filing of a CIA analyst’s whistleblower complaint which ended up touching off the House’s impeachment inquiry. Neither congressional Republicans nor the White House have offered any evidence to support such an allegation, and Schiff has repeatedly denied having participated in anything of the sort.

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Andrew Feinberg covers the White House, Capitol Hill, and anywhere else news happens for BeltwayBreakfast.com and BroadbandBreakfast.com. He has reported on policy and politics in the nation's capital since 2007, and his writing has appeared in publications like The Hill, Politico, Communications Daily, Silicon Angle, and Washington Business Journal. He has also appeared on both daytime and prime radio and television news programs on NPR, Sirius-XM, CNN, MSNBC, ABC (Australia), Al Jazeera, NBC Digital, Voice of America, TV Rain (Russia) and CBS News. Andrew wishes he could say he lives in Washington, DC with his dog, but unfortunately, he lives in a no-dogs building in suburban Maryland.

Impeachment

Trump Trial Will Continue Through State Of The Union After Senate Rejects Witnesses

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The Senate has taken the first formal step toward putting an end to Donald Trump’s impeachment trial on Friday by voting 51-49 against examining any additional documents or taking testimony from witnesses beyond those examined during the House’s impeachment inquiry.

Only two Republican senators — Maine’s Susan Collins and Utah’s Mitt Romney — voted in favor of allowing the Senate to debate whether to consider evidence beyond that which was submitted as part of the 28,578 page trial record compiled by the House Foreign Affairs, Intelligence, Judiciary, and Oversight Committees.

The outcome of the procedural vote means the Senate will have no opportunity to hear testimony from former Trump national security adviser John Bolton, whose forthcoming book reportedly reveals the extent to which Trump worked to exert pressure on Ukraine’s government in order to coerce Ukrainian President Volodymyr Zelensky into announcing investigations into former Vice President Joe Biden and a discredited conspiracy theory which posits that Ukraine — not Russia — interfered in the 2016 election.

The as-of-yet unpublished tome has loomed large over the upper chamber’s proceedings since Sunday, when the New York Times first reported that Bolton had written of a conversation between himself and Trump in which the president explicitly linked the hold he’d ordered placed on $391 million in aid to Ukraine to his desire to see Zelensky take actions to damage Biden.

As he addressed senators in the hours leading up to the vote on witnesses, lead House manager Rep. Adam Schiff drew their attention to yet another report alleging that Trump’s attempts to exert pressure on Ukraine began as early as May 2019, when, during an Oval Office meeting with Bolton, Acting White House Chief of Staff Mick Mulvaney, White House Counsel Pat Cipollone, and Trump’s personal attorney, former New York City Mayor Rudolph Giuliani, the president reportedly asked Bolton to arrange a meeting between Giuliani and Zelensky, who’d just become his country’s president-elect.

After noting that Trump had denied having asked Bolton to arrange the meeting between Giuliani and Zelensky, Schiff offered a solution for resolving the differences between the president’s account and that of his national security adviser.

“Let’s put John Bolton under oath — let’s find out who’s telling the truth,” Schiff said. “Trial is supposed to be a quest for the truth. Let’s not fear what we will learn.”

Schiff’s words, however, failed to convince senators of the need to conduct any further investigation into the allegations against Trump.

Shortly after senators had finished voting, Senate Minority Leader Chuck Schumer told reporters the decision to reject any new documents or testimony as a “perfidy” and a “grand tragedy.”

“America will remember this day…when the Senate did not live up to its responsibilities, when the Senate turned away from the truth and went along with a sham trial,” Schumer said.

“If the president is acquitted with no witnesses, no documents, the acquittal will have no value because Americans will know that this trial was not a real trial.”

In a statement, House Speaker Nancy Pelosi said Senate Republicans’ vote to reject further testimony “makes them accomplices to the President’s cover-up.”

“The President was impeached for abuse of power and obstruction of Congress. He is impeached forever. There can be no acquittal without a trial. And there is no trial without witnesses, documents and evidence,” she said.

“It is a sad day for America to see Senator McConnell require the Chief Justice of the United States to preside over a vote which rejected our nation’s judicial norms, precedents and institutions to uphold the Constitution and the rule of law.”

While some Republicans had hoped that dispensing with any additional testimony or documentary evidence would allow the Senate to proceed rapidly a final vote so Trump could be acquitted before he delivers his third State of the Union speech on Tuesday, he will instead become the second president to address a joint session of Congress during his own impeachment trial.

A procedural resolution approved by the Senate late Friday evening will instead provide for a break in the trial schedule to allow several Democratic senators to travel to Iowa to campaign before for Monday’s presidential caucus. Although both Schumer and Senator Chris Van Hollen, D-Md., offered several further amendments to compel documents and testimony from Bolton and other White House officials, each of them was rejected by the same 51 Republicans before the Senate adjourned for the weekend.

Trial proceedings will resume at 11:00 am on Monday, when Chief Justice Roberts returns to preside over four hours of closing arguments, which will be split evenly between House Democrats and the president’s attorneys.

Following closing arguments, the court of impeachment will recess for two days so the Senate can resume normal proceedings, during which senators may give speeches about the trial before Roberts returns to preside over a final vote at 4:00 pm on Wednesday.

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The Chief Justice Wouldn’t Read The Name Of A CIA Analyst Who Rand Paul Accused Of Being The Ukraine Whistleblower. Paul Read It Himself Instead.

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Senator Rand Paul on Thursday stormed out of President Trump’s impeachment trial in anger after Chief Justice John Roberts declined to read a question he’d prepared because it would have named the CIA employee who prominent conservatives have accused of being the whistleblower whose complaint to the Intelligence Community Inspector General touched off the impeachment inquiry into the president.

Paul, R-Ky., had previously been warned that Roberts would not read any question which included a particular name which has been in wide circulation among fringe conservative media outlets since House Speaker Nancy Pelosi announced an impeachment inquiry into Trump on September 24.

Paul and other prominent Trump allies believe the CIA employee in question, a Ukraine expert who was detailed to the National Security Council for a time, is the whistleblower who on August 12 filed a complaint of an “urgent concern,” alleging that Trump “was using the power of his office to solicit interference from a foreign country in the 2020 election.”

The complaint was the first indication that there was anything untoward about the July 25 phone call between Trump and Ukrainian President Volodymyr Zelensky in which Trump responded to Zelensky’s request to purchase Javelin anti-tank missiles by asking his counterpart for “a favor” in the form of an investigation into former Vice President Joe Biden and a discredited conspiracy theory which posits that Ukraine — not Russia — interfered in the 2016 election.

Trump allies have seized on the fact that Intelligence Community Inspector General Michael Atkinson found that the alleged whistleblower — who he found to be credible — may have not been a supporter of the president in their attempts to paint the impeachment investigation and trial as a “coup” by disgruntled Democrats.

After Roberts informed the Senate that he “declined to read the question as worded,” Paul stormed off the Senate floor despite being required to be present “on pain of imprisonment” during all trial proceedings.

He then made his way to a television studio used for senators’ press conferences and read his question to a group of reporters. He also posted the question to Twitter, along with statement claiming that his question was “not about a ‘whistleblower'” because he said he had no independent information on his identity.

“My question is about the actions of known Obama partisans within the NSC and House staff and how they are reported to have conspired before impeachment proceedings had even begun,” he added.

Paul’s decision to leave the Senate floor and read the name of the person he believes is the whistleblower during trial proceedings could leave him open to civil or criminal liability if his naming of CIA employees violates any applicable laws.

While the US Constitution’s Speech or Debate clause protects members of congress from any liability for official acts, Harvard Law School professor and constitutional law expert Laurence Tribe told BeltwayBreakfast that Paul’s decision to leave the Senate floor during trial proceedings could subject him to punishment and leave him without the immunity he would ordinarily enjoy.

“I do think that he dropped the shield of the speech and debate clause when he did that for any number of reasons,” said Tribe, who has been advising House Democrats’ team of impeachment managers on constiutional questions.

“Among others, he subjected himself, by leaving the Senate chamber for that purpose, potentially to imprisonment for violating Senate rules that were being strictly enforced,” he added.

Paul, Tribe said, should at least be subject to censure by the Senate for reading aloud the name of the person he believes to be the whistleblower. He added that Paul could be held liable for the statements made during his Thursday press conference.

“He certainly should not be allowed to treat this as official Senate business…coming within the protection of the speech and debate clause,” he said, because Paul left the Senate chamber during trial proceedings.

Melanie Sloan, a senior adviser to the transparency group American Oversight and a former chief counsel to the House Judiciary Committee, concurred with Tribe’s conclusion that Paul was not protected by the constitutional immunity afforded to members of Congress for official acts.

She explained that because Chief Justice Roberts had ruled Paul’s question out of order, his press conference lacked a connection to his official duties.

“The Chief Justice specifically ruled that this was not in order. So I think it’s very hard to argue that Speech or Debate would therefore cover this,” she said.

Tribe, whose book, American Constitutional Law, is used as a standard text for teaching constitutional law in many American law schools, agreed.

“Once the question had been rejected, that was as definitive a ruling as he can get from the Chief Justice of the United States that what he wanted to ask was not part of the Senate’s business,” he said. “It’s doubly extracurricular because he left the chamber and decided to hold a press conference of a kind that was completely unrelated to the work of the Senate.”

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No Evidence Trump Was Concerned About Ukraine Corruption, His Lawyers Say

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White House Counsel Patrick Philbin speaks in the well of the Senate on Wednesday, January 29

President Trump’s attorneys were given a chance to prove a claim that has become central to the president’s defense. They couldn’t.

On the first day of the three-day question-and-answer period before the Senate votes on whether to allow witnesses in Trump’s impeachment trial, Senators Susan Collins, R-Maine and Lisa Murkowski, R-Ak asked the Trump defense team whether they could cite examples of the president expressing any concern about corruption in Ukraine prior to former Vice President Joe Biden announcing a White House run in April 2019.

The attorney chosen to respond, Deputy White House Counsel Patrick Philbin, didn’t offer much of an answer.

“There’s not something in the record on that. It wasn’t thoroughly pursued in the record. So I can’t point to something in the record that shows President Trump at an earlier time mentioning specifically something related to Joe or Hunter Biden,” Philbin said.

Philbin did, however, suggest that Trump’s concern predated Biden’s announcement because his personal attorney, former New York City Mayor Rudolph Giuliani had expressed interest in traveling to Ukraine in order to investigate a widely-discredited conspiracy theory which posits that Ukraine — not Russia — interfered in the 2016 election.

He later added that Trump’s alleged interest in rooting out corruption in Ukraine might have been a reaction to several news stories focusing on Hunter Biden, the Vice President’s son who served on the board of a Ukrainian energy company which he’d previous advised while he was an attorney at the law firm of Boise Schiller Flexner LLP.

Even if Philbin’s suggestion that Trump was tipped off by news stories has any truth to it, however, the stories themselves were written during a period in which there was wide speculation that the elder Biden would soon launch a presidential campaign.

A short time later, lead House manager Rep. Adam Schiff, D-Calif., noted that the president’s lawyers could back up the claim that he was concerned about corruption in Ukraine by calling witnesses who would testify to that effect.

Collins and Murkowski are among the few Republican senators who are thought to be in favor of the Senate allowing witness testimony when it takes up that question on Friday.

Neither Collins’ or Murkowski’s office responded to a request for comment from BeltwayBreakfast.

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