Andy McCarthy: How About a Compromise Option on Bolton Testimony?

Posted: Jan 30, 2020 10:15 AM
Andy McCarthy: How About a Compromise Option on Bolton Testimony?

With the Bolton battle raging over the last few days, and President Trump publicly assailing yet another former hand-picked member of his own administration, there have been conflicting reports about whether the Republican Senate majority will have the votes to defeat the prospect of hearing from new witnesses in the ongoing impeachment trial.  Democrats have demanded an appearance by former National Security Adviser John Bolton, arguing that reports of an explosive passage in his forthcoming book are directly relevant to the matter at hand.  A small handful of Republicans seem to agree, though just how many GOP Senators comprise that handful is unclear.  Leader Mitch McConnell indicated Tuesday evening that he did not have the votes he needed, but subsequent informal whip counts suggested that perhaps the Republicans would hold together after all.  The situation is fluid.

I've already expressed my rationale for why I think Bolton should testify.  I also believe that Lindsey Graham's idea of making Bolton's manuscript available to Senators doesn't quite pass muster, because claims in a book are simply not the same as sworn testimony.  I fully appreciate many Senators' desire not to extend the trial even longer, especially when the verdict is a foregone conclusion.  I also sympathize with the impulse not to clean up after House Democrats' cynical, shoddy rush job.  But Bolton's direct knowledge about the president's alleged 'quid pro quo' machinations are explicitly relevant to a central question of these proceedings.  Is there a way to get Bolton on-the-record on this discreet issue, without opening the floodgates to a Democratic fishing expedition, and potentially new rabbit holes and more witnesses?  Former federal prosecutor Andy McCarthy thinks so:

It seems to me that there is an easy way out of this quandary. What I will now propose would neither require nor foreclose the president’s opportunity to call other witnesses, such as the Bidens, the “whistleblower,” et al. The Senate could pass a resolution that would authorize a four-hour deposition of John Bolton by the Senate Judiciary Committee. There would be 90 minutes of questioning for each side, with the remaining hour reserved for members of the committee to pose questions. To move things along, Chief Justice Roberts would preside, subject to the Judiciary Committee’s review (it is highly unlikely that senators would have reason or gumption to overrule the chief justice on a point of admissibility). The subject would be: What if any communications did Bolton have with Trump on the lone subject of conditioning Ukrainian defense aid on Kyiv’s conduct of investigations? This would respect executive privilege by narrowly limiting the testimony to the only relevant issue, not permitting a fishing expedition into the former national-security adviser’s discussions with the president.

The president’s defense would be able to avoid Bolton’s deposition by stipulating that he would testify that there was a quid pro quo. The president’s defense would also be permitted to renew its call for more witnesses after hearing Bolton’s testimony and deciding whether it was really necessary to extend the trial further for that purpose. I am betting that either (a) the president’s team would stipulate, since it is probably true and makes no difference to the outcome of the case; or (b) the lack of a difference to the outcome would be so clear after Bolton’s testimony that the president’s team would not press for more witnesses – seeking, instead, to move on to final arguments and a verdict of acquittal. Presumably, the limited testimony, or stipulation to what the testimony would be, would satisfy such Senators as Mitt Romney, Susan Collins, and Lisa Murkowski – Republicans said to be leaning toward voting to subpoena Bolton.

"By this process, the trial could be wrapped up by early next week. But for now, here’s the question for the president’s team: If you are claiming that there is no quid pro quo, shouldn’t we hear very limited testimony from Biden on that question; or, if you don’t want to have testimony from [Bolton], shouldn’t we just assume he would testify that there was a quid pro quo?" McCarthy concludes.  This might be a realistic option, especially if McConnell doesn't think he's got his ducks in a row.  I agree that Bolton's testimony would not alter the outcome of the trial.  Trump is getting acquitted, likely be a large margin; several Democrats are strongly considering acquittal votes, as I anticipated.  I disagree that Bolton providing the final link in an abusive and deeply unethical quid pro quo effort is inconsequential.  That evidence would further confirm serious presidential misconduct and expose the "no quid pro quo" talking point as mendacious.  The truth matters, even if it doesn't change the final result of this (misguided, in my view) impeachment saga.  

That many Republicans appear willing to just shrug and effectively stipulate the intended quid pro quo probably did occur all along is actually disturbing.  This is especially true given that the "no quid pro quo" talking point was repeated ad nauseam by the president and his team.  At this point, it's only arguably technically true because neither the quid nor quo was fully followed through upon.  The Ukrainians got their money, and the Biden investigation was never announced.  But that's basically only the case because the administration got caught and abandoned the scheme under negative scrutiny.  At this point, I envision three possible scenarios:

(1) No witnesses are called because Republicans scrounge up the votes they need, and Chief Justice Roberts lacks the appetite to heavily intervene in a fundamentally political process.  This may be becoming the likeliest of the three at this point -- and would be a GOP "victory." But it would come with risks and downsides, so much so that Democrats may actually be secretly rooting for it:

(2) Witnesses are called and the trial is extended for an indefinite number of days, with the two likeliest options being Bolton and Hunter Biden.  In refards the latter figure, it would seem the Democrats' argument that Biden's son is "irrelevant" isn't going as they'd hoped:

(3) Some variant of the 'McCarthy compromise' is adopted.  Some hybrid of options two and three may emerge as the likeliest outcome if McConnell cannot summon the votes for option one.