Second, the White House’s refusal to allow Bolton’s testimony and production of notes is prime evidence of the article of impeachment regarding obstruction of Congress. Trump’s tweet attacking Bolton’s account, in speaking to and revealing the contents of the conversation, waives any possible executive privilege claim, a Democratic aide involved in the impeachment trial told me. (Though, Trump has never actually asserted such privilege, and executive privilege cannot be asserted to cover up wrongdoing, per the Supreme Court’s ruling in U.S. v. Nixon.)
Third, Bolton’s account and Trump’s denial highlight there is a critical question of fact that can be answered only by Bolton’s appearance and production of his notes, on which the book was likely based. The more Trump tweets denials, the more obvious it becomes that Bolton’s testimony under oath is essential.
Fourth, Republicans who feign offense whenever Democrats intimate they are Trump toadies now are in a real bind. Refusing to demand evidence practically under their noses would be the personification of a coverup born of cowardice. Sens. Susan Collins (R-Maine), Lisa Murkowski (R-Alaska) and other senators who have indicated interest in witnesses, only to pull back in recent days, now are trapped. What is the excuse for refusing to see the most incriminating evidence one could imagine against Trump?
Fifth, Republicans now know if they turn a blind eye toward Bolton, they are sure to be humiliated within months if not weeks. As House impeachment manager Rep. Adam B. Schiff (D-Calif.) said in an appearance on CNN: “Senators, on March 17, when this book comes out, are going to be asked if they don’t support calling him as a witness, why didn’t you want to hear from him when he could have given you information before you rendered your verdict? And I just would not want to be in a position of having to answer that question. … They’ve taken an oath to be impartial. They’ve just learned there’s a key witness going to the heart of the allegations. The question they have to answer is, do they want to hear the truth?”
Sixth, House managers accused White House Counsel Pat Cipollone in a Jan. 21 letter of violating his ethical responsibilities by acting as counsel in a case in which he was a central player (e.g. authoring the Oct. 8 letter flat-out rejecting any cooperation with subpoenas):
To 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.
That proved prophetic. Cipollone subsequently represented to the Senate that there is no direct evidence of a quid pro quo. As White House counsel, he surely was aware of the allegation in Bolton’s book that was submitted to the White House for approval nearly a month ago. A Democratic aide working on the impeachment trial says it is clear Cipollone “has crossed the line” given the Bolton revelation.
Seventh, Democratic aides involved in the impeachment are cagey about whether they could go to Chief Justice John G. Roberts Jr. to subpoena Bolton if Senate Republicans refuse to allow for witnesses, although they are quick to remind us that House managers have already told the Senate that a pretty capable jurist is in the chamber who can rule on witnesses. Understandably, the House managers do not want to take the focus off Republicans to agree to witnesses. That said, having an appeal to Roberts as a backup plan is helpful.
Finally, it is not simply Bolton himself who is key to the trial. He was a voracious note-taker and plainly compiled materials he could later use for his book. Any subpoena would demand he bring relevant documents with him. Contemporaneously drafted notes taken before he quit/was fired would be extremely compelling evidence, especially if they track other witnesses’ testimonies.
In sum, Senate Republicans can call Bolton, hear his damning testimony and suffer the president’s rage. Alternatively, they can refuse to consider the most dispositive evidence imaginable, confirm this is a sham trial (denying Trump exoneration) and then watch as Bolton humiliates them by revealing the evidence they willfully ignored. Either way, the incriminating evidence against Trump will come out. The only question is if they want to be seen as accomplices in a failed coverup scheme.