President Trump’s legal defense team and Senate GOP allies are quietly gaming out contingency plans should Democrats win enough votes to force witnesses to testify in the impeachment trial, including an effort to keep former national security adviser John Bolton from the spotlight, according to multiple officials familiar with the discussions.
While Republicans continue to express confidence that Democrats will fail to persuade four GOP lawmakers to break ranks with Senate Majority Leader Mitch McConnell (R-Ky.), who has opposed calling any witnesses in the trial, they are readying a Plan B just in case — underscoring how uncertain they are about prevailing in a showdown over witnesses and Bolton’s possible testimony.
One option being discussed, according to a senior administration official, would be to move Bolton’s testimony to a classified setting because of national security concerns, ensuring that it is not public.
To receive the testimony in a classified session, Trump’s attorneys would have to request such a step, according to one official, adding that it would probably need the approval of 51 senators.
But that proposal, discussed among some Senate Republicans in recent days, is seen as a final tool against Bolton becoming an explosive figure in the trial. First, Republicans involved in the discussions said, would come a fierce battle in the courts.
Trump’s trial begins in earnest Tuesday on the two impeachment charges: abuse of power and obstruction of Congress. They center on the allegation that Trump withheld military aid and a White House meeting to pressure Ukraine to investigate his political rivals, including former vice president and 2020 candidate Joe Biden. The Trump administration stonewalled the House impeachment probe, denying witnesses and documents.
In an organizing resolution released Monday and authored by McConnell and his team, the rules would allow either the president’s defense team or the House impeachment managers to subpoena witnesses if the Senate agrees, but any witnesses would first have to be deposed. “No testimony shall be admissible in the Senate unless the parties have had an opportunity to depose such witnesses,” the resolution says.
Blocking witnesses such as Bolton — or shielding the testimony from view — could carry political risks for Republicans. Bolton has said he would testify if subpoenaed by the Senate.
“Democrats will ask, ‘Don’t the American people deserve to know the truth?’ ” said William A. Galston, a senior fellow in governance at the Brookings Institution. “On the other hand, they may well calculate that public testimony would create uncertainties that they’re willing to go to considerable lengths to avoid.”
Trump has said he would assert executive privilege if Bolton were called to testify, telling Fox News’s Laura Ingraham last week, “I think you have to for the sake of the office.”
And the White House has indicated in conversations with Republican lawmakers that it could appeal to federal courts for an injunction that would stop Bolton if he refuses to go along with their instructions, according to a senior administration official, who, like others interviewed for this article, was not authorized to speak publicly and so spoke on the condition of anonymity.
Multiple Senate Republicans and White House officials cautioned that the strategy was not finalized and discussions were preliminary, particularly since Bolton and others might not even be called in the coming weeks if 51 senators are unable to finalize an agreement on witnesses. And so far, talks among Republicans and Democrats have stalled as they battle over who should be called.
Still, the GOP discussions are a tacit acknowledgment that even Trump’s team and political allies are finding it difficult to predict how the Senate trial will unfold, despite Republicans rallying around the president and pushing to acquit him in a speedy two-week period.
The White House argued in a legal brief filed Monday that Trump was not obstructing “when he rightly decided to defend established executive branch confidentiality interests, rooted in the separation of powers, against unauthorized efforts to rummage through executive branch files and to demand testimony from some of the president’s closest advisers.”
The deliberations also suggest that some in the president’s circle are uneasy about what Bolton might say. While some refuse to view him as a political threat and cast him as a conservative operative who wants a future in a Trump-dominated Republican Party, others predict that he could upend the president’s fourth year in office with his testimony, since he is known as a lawyer with a sharp memory for meetings and policy.
“Is this guy who’s cheering on the president’s foreign policy right now really going to break?” asked one Trump ally who is close to the White House, speaking on the condition of anonymity to talk frankly. “I don’t know.”
Privately and publicly, some veteran Republicans cautioned that while the White House wants to control the process, it’s not for White House officials to decide how Bolton’s testimony would be handled.
“Ultimately, McConnell will decide, and he is dealing with a very personality-based system where he has to focus on bringing a few people along. McConnell is cueing everything off of those senators,” former House speaker Newt Gingrich (R-Ga.) said in an interview. “The president being combative doesn’t mean he makes the decision.”
Top Republicans aren’t waiting around to find out. On television, Trump’s allies keep warning Democrats of “mutually assured destruction” — that if Democrats get their own witnesses, Trump’s team will call the Bidens.
“Be careful what you wish for,” White House counselor Kellyanne Conway told Fox News on Monday, warning that Republicans would call Hunter Biden. “Witness number one would have to be Hunter Biden. How else would we know about the corruption in Ukraine?”
Hunter Biden served on the board of Ukrainian gas company Burisma, and Trump and his personal lawyer Rudolph W. Giuliani have promoted an unfounded theory that Joe Biden, while vice president, tried to stop a corruption investigation of the company to protect his son. Hunter Biden is no longer on Burisma’s board.
For now, if enough senators vote to call witnesses after the initial arguments by House Democratic managers and Trump’s team, McConnell is expected to ensure that those individuals are questioned in a closed-door session rather than a public setting, according to people close to the Senate GOP.
And a private session, these people said, would apply to Bolton and perhaps Hunter Biden, since Republicans would almost certainly agree to witnesses only if they could call their own. Whether Bolton’s testimony would be classified or a closed deposition remains a point of negotiation, should Republicans ever reach that point.
One Senate Republican aide noted that senators handled witnesses using closed depositions in the 1999 trial of President Bill Clinton. However, during the Clinton trial, depositions were videotaped, transcripts were publicly released, and portions of the interviews were shown on televisions on the Senate floor. It is unclear how Republicans would handle closed depositions this time.
Several Senate GOP aides said Monday that McConnell, while reluctant to disclose his strategy, is making it evident to allies that he does not want a “spectacle” of witnesses and has advised the president along those lines.
Trump’s lawyers are hoping it doesn’t even get that far: White House counsel Pat Cipollone plans to argue this week that calling witnesses like Bolton would infringe on executive privilege and endanger national security, a game plan first reported by Axios. The team will also say that senators have a duty to protect confidential conversations between a president and a senior national security official, and that infringing on that privacy would have lasting repercussions.
Of course, it may not be up to the White House or Trump’s congressional allies. Ultimately, a majority of the Senate will dictate trial procedure. And a group of swing Republicans — Sens. Susan Collins (Maine), Lisa Murkowski (Alaska), Mitt Romney (Utah) and Lamar Alexander (Tenn.) — could upend those plans if they side with Democrats.
Already three of those four have indicated that they would be open to hearing from additional witnesses, which is why Trump’s defense team is considering contingency plans.
Democrats remain furious with McConnell, who has not shared details of his plans with Senate Minority Leader Charles E. Schumer (N.Y.) or other Democratic leaders, and they worry that he is preparing to rush through an abbreviated trial.