More than two months before he asked Ukraine’s president to investigate his political opponents, President Trump directed John R. Bolton, then his national security adviser, to help with his pressure campaign to extract damaging information on Democrats from Ukrainian officials, according to an unpublished manuscript by Mr. Bolton.Mr. Trump gave the instruction, Mr. Bolton wrote, during an Oval Office conversation in early May that included the acting White House chief of staff, Mick Mulvaney, the president’s personal lawyer Rudolph W. Giuliani and the White House counsel, Pat A. Cipollone, who is now leading the president’s impeachment defense.Mr. Trump told Mr. Bolton to call Volodymyr Zelensky, who had recently won election as president of Ukraine, to ensure Mr. Zelensky would meet with Mr. Giuliani, who was planning a trip to Ukraine to discuss the investigations that the president sought, in Mr. Bolton’s account. Mr. Bolton never made the call, he wrote.
First, this shows that Trump’s chief counsel for his impeachment defense, Pat Cipollone, might have been a fact witness to the very corrupt scheme for which Trump was impeached — and for which the Senate is now set to acquit him.
Stephen Gillers, a professor at the New York University School of Law, told us that this raises serious questions about the propriety of Cipollone’s role as Trump’s chief counsel. As Gillers wrote in a recent piece, Cipollone had an obligation, at a minimum, to disclose all his own knowledge of the facts surrounding the case.
As Gillers wrote, a legal ethics rule known as the “advocate-witness rule” says that “when a lawyer should be a witness at trial, she cannot also be an advocate in the courtroom."
Now Bolton has placed Cipollone right in the room with Trump as he ordered Bolton to pressure the Ukrainian president to work with Trump’s personal lawyer to set up a shadow operation that would subvert our foreign policy and national interest to Trump’s corrupt political ends.
“In a real trial, when we’re looking to discover the truth, if you should be a witness because of what you know, you cannot be the lawyer,” Gillers told us, adding that “in a real trial,” prosecutors could “ask the judge to order Cipollone to disclose his participation in the underlying events.”
The parallels between a real trial and an impeachment trial are of course imperfect, Gillers noted, but the House impeachment managers could try something similar right now.
What Democrats can do
Gillers suggested that the House impeachment managers could ask the presiding officer, Chief Justice John G. Roberts Jr., to remove Cipollone as Trump’s chief counsel and order Cipollone to sit for questioning by the managers as part of Trump’s trial.
“The managers might ask the chief justice to require Cipollone to testify under oath, subject to cross-examination,” Gillers said. “There’s a very plausible argument to say that he should have been a fact witness."
Gillers noted that Roberts — who has been reluctant to involve himself in the proceedings — might decline to rule on the question, which would then presumably punt it over to the Senate itself to decide. Gillers said the managers could ask Roberts to at least delay the proceedings to allow that vote.
Which would be interesting, because at that point, Senate Republicans would almost certainly vote down such a request. And that would once again show their rock-solid dedication to corrupting the trial in service of helping Trump avoid a full reckoning in this sordid affair.
What’s more, the new Bolton revelations show that the trial has been even more corrupted by Trump and his team than we thought in another important way.
The GOP Senate just officially voted down any new witnesses and evidence at Trump’s trial. This means we will not only be denied what Bolton knows (at least in the context of the trial); we will also be denied Bolton’s testimony about the role played by Trump’s own chief counsel.
To be clear, we don’t know if what Bolton is saying about Cipollone is true. But, importantly, GOP senators are not allowing Bolton to testify, and are thus sidestepping their responsibility to evaluate his claims on their own.
Which means GOP senators will now vote to acquit Trump after voting to put into effect Trump’s own decree that they cannot hear any new witnesses and evidence — including new evidence about the highly dubious role in the saga allegedly played by Trump’s chief counsel.
Meanwhile, the new revelations raise fresh questions about how involved acting White House chief of staff Mick Mulvaney was in the scheme.
Mulvaney has said he would leave the room when Trump was talking to Giuliani to preserve their attorney-client privilege (even though attorney-client privilege only applies to legal advice an attorney gives a client, and that’s not what Giuliani was doing). But according to Bolton, Mulvaney was involved from the very beginning in the effort to pressure the Ukrainians.
As Ambassador Gordon Sondland famously testified, everyone was in the loop.
Mulvaney, of course, has also been blocked from testifying — first to the House, and now to the Senate, with the complicity of Republicans who have actively chosen to deny themselves the opportunity to hear from Mulvaney, another direct witness to Trump’s misconduct.
Finally, the new revelations also make clear that the more Congress (or anyone else) investigates this matter, the more facts will emerge.
This underscores again the profound corruption driving the Senate GOP’s refusal to hear new witnesses and evidence. Every passing day brings new revelations that make their preordained acquittal vote politically harder, and they’re hurrying to get it done for precisely this reason.
This has been a total farce on every level.
“Following the trial of the Jack of Hearts in Alice in Wonderland, the Queen demanded sentence first, verdict later,” Gillers told us. “The Senate seems poised to do her one better — acquittal first, trial never.”