Can Congress Get a Witness?
Former Trump National Security Advisor John Bolton’s brain is like a triangular pinball machine where his ideas rocket around three governing bumpers: One, he’s always right. Two, the Democrats are always wrong. And, three, he’ll always be a good Republican.
He remains steadfast in his conviction that he was justified in refusing to testify in Donald Trump’s first impeachment because the Democrats didn’t press him hard enough, and he frequently serves this up as evidence of why Democrats are to blame for Trump’s continued menace on the American electorate. Bolton has made this point in his book, many media appearances, and most recently, a Wall Street Journal review of Rachael Bade and Karoun Demirjian’s new book Unchecked: The Untold Story Behind Congress’s Botched Impeachments of Donald Trump.
Bolton isn’t really reviewing the book; he’s just using a supposed review as an opportunity to push his point. But because Bolton is an emblem of a far bigger political problem, it’s worth taking up his argument.
Bolton agrees with Bade and Demirjian that the partisan nature of Trump’s first and second impeachment is mainly what made them unsuccessful. The difference is the reporters say both parties missed opportunities to check Trump, and Bolton chastises the Democrats. Conveniently left out of Bolton’s argument is that he himself is precisely the type of high-ranking Republican official whom House Democrats hoped would lend bipartisan credibility to the impeachment over Trump’s Ukraine aid holdup. Bolton also skips right over the part where Senate Republicans, led by then-Majority Leader Mitch McConnell, engineered a pressure campaign to ensure that the Senate wouldn’t call any witnesses for that trial.
Why does this matter now? Congress’s struggle to get witnesses didn’t end with Trump’s first impeachment. The battle of wills extended into his second impeachment, as Republicans, save for the handful who voted to impeach or convict, refused to engage in any efforts that could damage the party. And the House January 6th Committee has repeatedly had to fight for cooperation from witnesses, issuing subpoenas to dozens of people, some of whom have still refused to testify, even to the point of being held in contempt of Congress. (Steve Bannon will be sentenced this week for contempt of Congress.) Now, as the committee is expected to subpoena Trump himself, it’s worth taking a look back at what Bolton got away with and the shameful new precedent of non-cooperation that Republicans have set.
Let’s go back to Trump’s first impeachment. When House Democrats asked Bolton to testify voluntarily, he refused and threatened to sue if they subpoenaed him. Worried about a lengthy court battle, Democrats abandoned the request, impeached Trump, and sent the articles of impeachment to the GOP-controlled Senate.
During that time, Bolton was working on his memoir, the details of which were unknown. Bolton then signaled in a January 6, 2020, statement that he would be willing to testify to the GOP-controlled Senate should it issue a subpoena. By that time, however, McConnell had already made up his mind that there should be no witnesses, a fact that was well-known to the public. Bolton’s supposed willingness to testify, in other words, was an empty promise.
But later that month, the Bolton book bombshell dropped as the Senate trial was underway. On January 26, the New York Times reported on a manuscript of Bolton’s forthcoming book where Bolton said Trump told him (in the Times’s paraphrase) “that he wanted to continue freezing $391 million in security assistance to Ukraine until officials there helped with investigations into Democrats including the Bidens.”
Bolton’s manuscript contained exactly the kind of evidence the Democrats were seeking. In Unchecked, Bade and Demirjian document how the manuscript sent Senate Republicans into panic mode. McConnell asked them not to make any public comments about calling Bolton to testify, as several of them wavered.
Behind closed doors, Mitt Romney lobbied his colleagues to join him in calling for Bolton’s testimony. Romney quashed concerns about a court battle and said Congress could appeal to the Supreme Court to make a timely decision on the matter, as it did during the 2000 presidential recount. Bade and Demirjian reported that Romney was compelling, and at that time, McConnell wasn’t sure he could win a vote to stop the Senate from calling witnesses. McConnell asked his members to stay mum and for time to “Let this play out.” But that did not mean McConnell was undecided on the matter. He wanted the time to knuckle his caucus because he understood that if the Senate voted to allow witnesses to testify, he would risk losing control over the length and outcome of the trial.
McConnell then had vulnerable 2020 Republican senators plead with their colleagues to vote no so the trial would wrap quickly and not cloud their re-election campaigns. (Two who made these speeches—Cory Gardner and Martha McSally—lost anyway.) After Trump’s lawyers rested their shoddy case, McConnell called a meeting with the senators he needed to lock down. “This is not about this president. It’s not about anything he’s been accused of doing,” McConnell said, as detailed in a chapter from Unchecked titled “Mitch’s Pressure Cooker”:
For the other side, this is about November 3, 2020. It’s always been about November 3, 2020. It’s about flipping the Senate. The longer you let this linger, the more likely it is that that will happen.
It was a purely political argument that addressed none of the substance raised in the trial. McConnell ultimately prevailed on the matter of witnesses after putting “the screws to” Lisa Murkowski, as Bade and Demirjian describe in another chapter. He specifically argued to her that “The most consequential vote during this impeachment is not about whether to convict or acquit. It’s about how to vote on witnesses—and what position that will put the courts in.” In other words, McConnell was saying that he could afford to lose Murkowski on a vote to convict Trump, which would require two-thirds of the Senate, but he couldn’t afford to lose her on a simple majority vote for witnesses. All because he believed allowing witness testimony could change the entire outcome of the trial.
Given how carefully Bolton, in his Wall Street Journal review, cherry-picked less important stories from Unchecked to suit his agenda, it’s hard to see how he could have missed these whole chapters.
Bolton all but absolves Senate Republicans of any responsibility. In his book The Room Where It Happened, he harangues the Democrats for their “partisan approach” and for being “governed more by their own political imperatives to move swiftly to vote on articles of impeachment in order to avoid interfering with the Democratic presidential nomination schedule than in completing a comprehensive investigation.” Even if the Senate had called on him to testify, given the House’s “impeachment malpractice” his testimony would have “made no significant difference” anyway.
Although Bolton insists his chief concerns revolve around high-minded complexities of constitutional law and executive privilege, there’s a more petulant argument Bolton and many other Trump-affiliated Republicans have presented through their actions when they defied requests from Congress. It amounts to two words: “make me.”
Bolton was asked to testify by House Democrats voluntarily but said a court needed to make him. He wasn’t alone in refusing the Democrats. Mick Mulvaney, Mike Pompeo, Mark Esper, Rick Perry, and a number of lesser-known officials also turned down requests for information. But Bolton stands out because he then used the information he withheld to publish a bestselling book in June 2020 that, get this, he had to fight in court for the right to publish and profit from. It’s not a great leap of logic to surmise that he only offered to testify during the Senate trial because the Republicans were likely to turn him down. If, by some far-flung chance, they changed their mind, he would gain political cover for evidence he was going to give to the public anyway. On his terms. (His desired retail price is $32.50 a copy.) But he definitely wasn’t going to do it just because the Democrats asked. That was never an option for him—because he’s as partisan as he accuses them of being.
During Trump’s second impeachment, Democrats were given another breaking-news gift when, again during the Senate trial, Rep. Jaime Herrera Beutler, one of the ten House Republicans who voted to impeach Trump the second time around, confirmed details of the shouting match Kevin McCarthy had with Trump on Jan. 6th. The unexpected information set off renewed calls for witnesses. But, like the first time, Democrats were interested in moving quickly, and the Republicans were more than happy to assist them in changing the subject. As Bade and Demirjian write, “Trump’s two impeachments were the first ever in which no investigator or prosecutor appealed to a judge to enforce their demands for evidence or witnesses.”
Now the responsibility for tracking down non-compliant witnesses for testimony related to the Trump coup belongs to the Jan. 6th Committee. Several high-ranking officials have, so far, successfully stonewalled the committee, and the committee has pursued contempt of Congress charges for the most egregious cases: Mark Meadows, Steve Bannon, Dan Scavino, Peter Navarro, and Jeffrey Clark. And the ultimate outcome of three of those cases remains unclear. The Department of Justice declined to charge Meadows and Scavino. Navarro was indicted in June and will stand trial in November. Bannon was found guilty of contempt in a jury trial last July and is scheduled to be sentenced on Friday. Prosecutors recommended that he serve six months in prison—enough jail time for Bannon to make himself a martyr for the cause, not enough to induce remorse.
But all eyes are on Trump. At the end of its hearing last week, the Jan. 6th Committee voted to subpoena Trump. (All the Trump lawyers that the committee has contacted so far have reportedly claimed they are not authorized to accept service of the subpoena.) Trump has teased that he is willing to testify, but it would be foolish to take that seriously. More likely, he will fight the request in courts, and if the GOP takes over the House following the November midterms, the committee, along with its subpoena to Trump, will be voided. It would be a victory for MAGA Republicans and all of those who operate motivated by the same triumvirate of shameless principles: self-interest, partisanship, and negative partisanship.