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RIDE-OR-DIE REPUBLICANS: Senate Majority Leader Mitch McConnell (R-Ky.) threw a wet blanket on impeachment fever Tuesday, telling reporters that if a Senate trial to impeach the president was held today, "I don't think there's any question it would not lead to a removal."
- "So the question is how long does the Senate want to take?" McConnell asked. "How long do the presidential candidates want to be here on the floor of the Senate instead of in Iowa and New Hampshire?"
- McConnell's main concern is protecting the Senate Republican majority in a year when he is personally up for reelection.
- Some warned/gloated the loss by Republican Gov. Matt Bevin last night in McConnell's home state should send shivers up the majority leader's spine.
From a former George W. Bush political strategist who now considers himself an independent:
Mitch McConnell is in deep trouble in 2020 in Kentucky.— Matthew Dowd (@matthewjdowd) November 6, 2019
Here's the thing: McConnell has stressed he would have “no choice but to take” up articles of impeachment that could soon be passed by the House. But that doesn't necessarily mean such a Senate trial would be a smooth one — especially if it bleeds into an election year and is constantly peppered by angry tweets from President Trump.
Senate Republicans would have to decide just how far to take angry protests about what they view as a rigged process and their defense of the president.
- Sen. Rand Paul (R), the junior senator from Kentucky, yesterday showed the lengths Republicans might be willing to go to defend Trump: he said he “probably will” unmask the name of the anonymous whistleblower who sparked the impeachment inquiry into Trump urging Ukrainian officials to investigate Joe Biden and his son.
- More Rand: “We also now know the name of the whistleblower. The whistleblower needs to come forward as a material witness because he worked for Joe Biden at the same time Hunter Biden was getting money from corrupt oligarchs,” Paul said onstage with Trump at a Kentucky rally Monday night.
- Paul also suggested the whistleblower — who is protected by federal law — should be subpoenaed because of these alleged ties to Biden, of which there is zero evidence.
Trump ally Sen. Lindsey O. Graham (R-S.C.), who served as an impeachment manager in the Senate trial of President Bill Clinton, previewed what could be the Senate Republican line:
Lindsey Graham, the chairman of the Senate Judiciary Committee, says he won't read any of the transcripts, and dismissed Sondland's reversal.— Kathryn Watson (@kathrynw5) November 5, 2019
"I've written the whole process off ... I think this is a bunch of B.S."
Conversations with former parliamentarians, procedural experts, and historians indicated Trump and his defenders can very well wreak havoc on an impeachment trial, which would require two-thirds of senators to convict and oust the president. The only precedents are the trials of then-Presidents Clinton and Andrew Johnson — and that may work to Trump's advantage.
- Everything stays the same: “The most important thing to know about a Senate trial of a President is how much we do not know,” said Walter Dellinger, a constitutional scholar and former acting solicitor general told the New York Times in December 1998 during Clinton’s impeachment trial. “We don't know whether it can be confined in a rational way or whether it will get out of control and take on a life of its own.”
Supreme Court Chief Justice John G. Roberts Jr., who would preside over a trial, will also be out of his element, according to Richard Arenberg, a Capitol Hill veteran and procedural expert.
Just as any Senate presiding officer, Roberts would be charged with settling procedural disputes according to Senate rules, with which he will probably be unfamiliar. That would make Roberts reliant on the Senate parliamentarian for help:
- A story about William Rehnquist helps explain this: “What the hell do I do now?” former SCOTUS chief justice William Rehnquist, who presided over the Clinton impeachment trial, asked then-Senate Parliamentarian Bob Dove loud enough during one day of the trial that he could be heard in the galleries, Arenberg writes in his book on congressional procedure.
- Our colleagues Robert Barnes and Seung Min Kim also point out that there's some awkward history: “Roberts steps into a precarious spot after a spat with Trump last year over the president’s derogatory remarks about federal judges and sharp criticism from both Democrats and Republicans in the Senate about Supreme Court rulings," they report.
- “Trump’s impeachment proceedings would be the first trial over which Roberts has ever presided. It provides the potential for a confrontation with a president who has already antagonized him, even as the chief justice has tried to distance himself and the court from partisan politics,” per Robert and Seung Min.
- “I think [the chief justice] is going to be very uncomfortable with it,” said Carter G. Phillips, a longtime Washington lawyer who is among the most prolific practitioners before the Supreme Court. “He will look the part and will act the part, but I’m sure he’d rather not have the part.”
McConnell will also have a lot of power throughout the trial: Trial rulings made by Roberts are subject to reversal by senators on a simple-majority vote.
- “McConnell would need a supermajority to change the trial rules that the Senate approved in the 1980s,” per our colleague Amber Philips. “But to just overrule Roberts’s interpretation of the rules, he would need a simple majority. He couldn’t easily blow up the trial process, but he can tweak around the edges,” Sarah Burns, a constitutional law expert at Rochester Institute of Technology, told Amber.
- “He can frame this trial however he wants,” Burns added, “because it’s not an entirely legal process and doesn’t adhere to the legal rules. So he has a lot more leeway to do what’s in his political interest … Essentially what we have here is the capacity of individuals in the Senate to change rules to undermine the constitutional system.”
- McConnell’s office disputed this in a statement to Amber: “He does not have any of the powers described.”
Don't forget the Trump factor: The president could hypothetically pressure vulnerable senators to support a procedural motion to dismiss a trial, as former Senator Robert C. Byrd (D-W. Va.) attempted to do during Clinton’s trial.
“But Republicans who controlled the chamber, as well as then-Sen. Russell Feingold (D-Wis.), voted to sustain the proceedings, denying Democrats the simple majority needed to dismiss the trial on a 56-to-44 vote,” our colleague Seung Min Kim reported last month.
Motions to dismiss can be brought by the House managers or White House lawyers, and only a majority would be required to end things.
A former parliamentarian told Power Up that Republicans “can sweep this under the rug and have no trial at all but McConnell has been out there very publicly saying that the Senate must hold a trial. But it begs the question [of] how much of a trial will they hold?”
Arenberg said he thinks the toxic partisan climate could make the trial “rocky” if there is persistent disagreement over the rules. He said there are “lots of small questions about what to do that are not part of the limited rules that exist,” opening plenty of room for debate.
Arenberg said the process around the Clinton trial worked because “Majority Leader [Trent Lott], and the Democratic Leader [Tom Daschle] were very determined to protect the dignity of the Senate and to carry out the proceedings in a manner that did justice to the Constitution.”
“I think there was some feeling at the time that the partisan atmosphere that had occurred in the House that the Senate should rise above that,” Arenberg added. “And so certainly the fact that they were able to work out agreements, terms of procedures, then go, and then pass it unanimously as a resolution kind of reflected that.”
DEMS CLAIM VICTORY IN KENTUCKY, FLIP VIRGINIA'S STATE HOUSE AND SENATE: “Democrats’ claim of victory Tuesday in Kentucky’s gubernatorial race, as well as the Democratic takeover of the Virginia state legislature, left Republicans stumbling and increasingly uncertain about their own political fates next year tied to an embattled and unpopular president,” our colleague Robert Costa reports.
- Key quote: "'It was a rough night,' Scott Reed, the chief political strategist for the U.S. Chamber of Commerce told Bob. 'The Republican Party is lacking message discipline, and that needs to be addressed. There is a lot of positive news around President Trump’s governing on the economy, on regulations and judges, and it seems to be overwhelmed by the drama.'”
The latest on the race: The Associated Press has still not called the governor's race where Democrat Andy Beshear, the state's attorney general, has declared victory over Bevin, who Trump and his acolytes embraced. Beshear was leading with 49.2 percent to Bevin's 48.8 percent with 100 percent of precincts reporting.
- But Bevin is refusing to concede. His claim of “irregularities” is also curious given Republican nominees won every other statewide office on the ballot.
- The irony: Kentucky Secretary of State Alison Ludergarn Grimes (D), defeated by McConnell in a 2014 Senate race, declared Beshear the winner on CNN.
- Recount? With only a few thousand votes separating the two, any state county clerk can cite a suspected discrepancy to suggest a recanvass. There are no automatic recounts in Kentucky — a candidate must formally request one by a week after the election. USA Today reported that the GOP state Senate president might ultimately decide who wins.
Bevin, who?: “Many allies of [Trump] rushed to explain away the poor performance of [Bevin] as an anomaly, while other GOP veterans expressed alarm about the party’s failure in a state where Trump won by nearly 30 percentage points in 2016 — and where he just campaigned this week,” our colleague writes.
- A quote you'll hear a lot this morning: “If you lose, they will say Trump suffered the greatest defeat in the history of the world,” Trump said at an election eve rally for Bevin. “You can’t let that happen to me, and you can’t let that happen to your incredible state.”
- Key: “Mr. Bevin’s troubles did not appear to be a drag on other Republicans, who captured every other statewide race in Kentucky — a sign that Kentucky voters were rejecting Mr. Bevin and not his party. Daniel Cameron handily won the attorney general’s race, becoming the first African American to claim the office and the first Republican to do so in over 70 years,” the New York Times' Jonathan Martin reports.
McConnell-land is not worried: Some suggested Bevin's apparent loss might mean the Senate majority leader is more vulnerable.
“Republicans won every office on the ballot — except #kygov,” Scott Jennings, a longtime McConnell adviser, wrote on Twitter. “Some unique candidate problems. GOP brand was fine elsewhere.”
Trump had this to say:
#ElectionNight Won 5 out of 6 elections in Kentucky, including 5 great candidates that I spoke for and introduced last night. @MattBevin picked up at least 15 points in last days, but perhaps not enough (Fake News will blame Trump!). Winning in Mississippi Governor race!— Donald J. Trump (@realDonaldTrump) November 6, 2019
Dems flip Virginia legislature, complete trifecta: "Democrats gained control of both houses of the Virginia General Assembly, tapping strength in the suburbs to consolidate power for the first time in a generation and deliver a rebuke to Trump," our colleagues Gregory S. Schneider and Laura Vozzella report.
- Key graf: "The sweep completed a dramatic political conversion, from red to blue, of a Southern state on Washington’s doorstep," our colleagues write. "Both of Virginia’s U.S. senators, a majority of its congressional delegation and all three statewide officeholders are Democrats. The state was carried by Democrats in the past three presidential elections. Republicans have not won a statewide contest since 2009."
Before Trump, this was a 66-34 GOP majority https://t.co/5r5brB4qoV— Graham Moomaw (@gmoomaw) November 6, 2019
Other races of note across the country:
- GOP projected to hold on to Mississippi governorship: "Republican Lt. Gov. Tate Reeves won the race for Mississippi governor ... defeating Democratic Attorney General Jim Hood," the Mississippi Clarion Ledger's Luke Ramseth and Giacomo Bologna report. "It will be the first time since Reconstruction that Republicans control all statewide elected offices in Mississippi."
- History in Kentucky: Republican Daniel Cameron's victory flipped control of Kentucky attorney general's office. He will be state's first GOP attorney general since 1948 and the first African-American to ever serve in that position, the Louisville Courier Journal's Joe Sonka reports.
- And history in Syracuse, New York: "Chol Majok will win Syracuse’s 3rd District Common Council seat today, making him the first former refugee to be elected to office in the city and county," Syracuse.com's Julie McMahon reports. "The former “Lost Boy” of South Sudan escaped civil war as an 8-year-old. Now, he’s proud to be a role model for new U.S. citizens."
- She flipped off Trump, then she flipped a seat: Remember the viral photo of a Virginia woman riding her bike while flipping the bird to Trump's motorcade? Juli Briskman is now a county supervisor and her district includes a golf course owned by the president, our colleague Paul Schwartzman reports. "'Isn’t that sweet justice?' she asked, her cackle suggesting that she knew the answer to her own question."
- Dems took control of a Philadelphia suburb's county council: It's the first time since the Civil War the Delaware County Council will not be under GOP control, CBS3 Philly reports.
On The Hill
ON THE HILL TODAY: "The State Department’s third-ranking official is expected to tell Congress that political considerations were behind the agency’s refusal to deliver a robust defense of the former U.S. ambassador to Ukraine," The Associated Press's Matt Lee reports.
- "People familiar with the matter say the highest-ranking career diplomat in the foreign service, David Hale, plans to tell congressional impeachment investigators on Wednesday that Secretary of State Mike Pompeo and other senior officials determined that defending Ambassador Marie Yovanovitch would hurt the effort to free up U.S. military assistance to Ukraine."
- "Hale will also say that the State Department worried about the reaction from Trump’s personal attorney Rudy Giuliani, also one of the strongest advocates for removing the ambassador."
MORE TRANSCRIPTS, TUSSLES OVER THE WHISTLE BLOWER AND JAY LENO:
E.U. Ambassador Gordon Sondland revises impeachment testimony, adds evidence to possible quid pro quo: "In a significant revision to his testimony nearly three weeks ago before House impeachment investigators, [Sondland] now says he told a Ukrainian official that security assistance to the country would be likely to resume only if the authorities in Kyiv opened investigations requested by [Trump] that could be damaging to former vice president Joe Biden," our colleagues Shane Harris and Aaron C. Davis report.
- More details: "In a 'supplemental declaration' provided to the House impeachment inquiry Monday, Sondland wrote, 'I now recall speaking individually' with a Ukrainian official and in that conversation saying 'that resumption of U.S. aid would likely not occur until Ukraine provided the public anti-corruption statement that we had been discussing for many weeks.'"
- Sondland said Rudy Giuliani was key to Ukraine: “Until Rudy was satisfied, the president wasn’t going to change his mind,” he said. "Sondland, former U.S. envoy to Ukraine, Kurt Volker, and Energy Secretary Rick Perry were disappointed about having to work with Giuliani because it was abnormal and was another impediment to scheduling a Trump meeting with Zelensky, Sondland said," our colleagues write.
Out and out: Despite Paul's desire to reveal the whistleblower's identity, not all of his fellow GOP colleagues were keen to do so Politico's Burgess Everett and Marianne LeVine report.
“'The whistleblower statute is there for a reason. And I think we need to respect the law where whistleblowers are concerned. Eventually that person may decide to come forward voluntarily,' said Senate Majority Whip John Thune (R-S.D.), who added that senators like Paul are frustrated with the lack of transparency from the House," Politico reports. (Thune is the No. 2 Senate Republican.)
News organizations are also refusing to out the whistleblower: "How come? The answer appears to lie in several factors: concerns that revealing the name could jeopardize the whistleblower’s safety; legal questions about whether the whistleblower’s identity is protected by federal law; and potential adverse public reaction to such a disclosure, " our colleague Paul Farhi reports. "There’s also a question about whether the person identified in news accounts and bandied about the Internet so far actually is the whistleblower."
- The Post's policy: "Post spokeswoman Kris Coratti said The Post wasn’t naming an individual because it 'has long respected the right of whistleblowers to report wrongdoing in confidence, which protects them against retaliation,'" our colleague reports. "She added, “We also withhold identities or other facts when we believe that publication would put an individual at risk. Both of those considerations apply in this case.”
- The New York Times, AP, NBC News all told our colleague that they also had their reasons for not publishing the whistleblower's name.
Mulvaney called to testify: Lawmakers have called acting White House chief of staff Mick Mulvaney to testify behind closed doors on Friday. But the Associated Press reported the White House has already said he won't show, an unsurprising development given that Mulvaney's aides have also refused to cooperate
And finally, Jay Leno: You never know what you'll find in the hundreds of pages of depositions from impeachment witnesses released so far. But this story about Ukrainian President Volodymyr Zelensky, a former comedian and TV star, takes the cake. (It comes from Sondland's testimony when he was asked about a lavish Fourth of July party he threw in Brussels.)