Trump’s impeachment trial witness vote teetering on ‘razor’s edge,’ keep eye on possible ‘devil’s bargain’

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Reaction and analysis from House Minority Whip Steve Scalise and Rep. Lee Zeldin.

The biggest questions in the impeachment trial are when will it conclude and if the Senate will call witnesses.

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The answer to the first question is predicated on the second question.

Former National Security Advisor John Bolton was the buzz at the U.S. Capitol Monday morning. Information leaked from the manuscript of Bolton’s book, due for release in March. The Bolton information was a game-changer. It propelled the issue of witnesses to the forefront, calling into question just how long the Senate trial may run if senators call witnesses.

"I think it's important to hear from John Bolton for us to make an impartial judgment," said Sen. Mitt Romney (R-UT).

Sen. Susan Collins (R-ME), facing a competitive re-election bid in a battleground state, favors witnesses. Sen. Lisa Murkowski (R-AK), not up until 2022, is also in play.

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"I've said from the beginning that it was very likely that I would vote for witnesses," said Collins. "The reports about John Bolton's book strengthens the case for witnesses and have prompted a conversation among my colleagues."

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Murkowski said that she was "still curious" about witnesses when it came to Bolton.

Republicans thought they were on a roll after the succinct presentations by the President’s defense team in opening arguments over the weekend. But GOP sources felt they lost momentum Sunday night when the Bolton information materialized. That fueled speculation by Republicans that the fix was in.

"Every time things don't go the Democrats' way, they try and change the narrative. They try and selectively leak information and try to do that," said Rep. John Ratcliffe (R-TX).

"This leak was designed for one purpose and one purpose only. That was to try to manipulate the thinking of my Republican colleagues in the Senate to encourage them to open it up and provide more witnesses," charged Rep. Mark Meadows (R-NC).

A senior Democratic aide working on the inquiry argued there was no coordination.

"We've had no communication with Mr. Bolton or Mr. Bolton's lawyers," said the aide.

Some Congressional sources immediately compared Bolton's book to what happened in 1991 when the Senate was all but ready to confirm Supreme Court Justice Clarence Thomas – and then Anita Hill came forward. The Senate re-opened the confirmation hearings. An eerily similar scenario played out in 2018 with the confirmation of Supreme Court Justice Brett Kavanaugh. The Senate re-opened hearings when Christine Blasey Ford announced she had information about the nominee.

"This will never end," complained Sen. Rick Scott (R-FL) during an interview with Fox's Bret Baier. "This is just like Kavanaugh. The Democrats are going to come up with something new every day to keep this going on forever."

Senate Republicans cloistered themselves behind closed doors shortly after Tuesday's trial session concluded.

Fox's Hillary Vaughn confirms that Senate Majority Leader Mitch McConnell (R-KY) told Republicans don't have the votes to block impeachment witnesses. Fox’s Mike Emanuel reported that McConnell indicated he may not have the votes to oppose witnesses – yet.

None of this should surprise anyone. There was a dearth of solid information after the GOP conclave. Usually if a closed-door meeting goes well on Capitol Hill, lawmakers tumble out, willing to talk to any reporter waiting in the corridor. If the meeting goes poorly or intel is fragmentary, lawmakers speak in generalities or are tightlipped. The latter was true today.

McConnell really doesn’t have control here. Senators will cast ballots the way they like. Remember that McConnell had to retool his resolution establishing the framework for the trial on the fly last week. He scribbled changes in the margins, in longhand.

This is why Democrats continue to amp up pressure on Republicans to call witnesses. By the same token, top Republicans are trying to wrap up the case as quickly as possible. They want to convince wavering GOP senators that if their key argument was that there was a "partisan process in the House" they can't have "a bipartisan process in the Senate." The effort where GOPers often close ranks around the President will be put to the test now.

As we always say on Capitol Hill, it's about the math. It's about the math. It's about the math. The math will be crucial when it comes to witnesses.

Here's the breakdown in the Senate: 53 Republicans and 47 senators who caucus with the Democrats. There are at least two GOP senators potentially voting for witnesses now. Three Republican votes would result in a tie. By rule, tie votes lose in the Senate. The Constitution and the Senate impeachment rules are silent on the Chief Justice breaking ties during a trial. Article I, Section 3 of the Constitution grants the Vice President the right to break ties. But we are deep into unique parliamentary and Constitutional turf with a Senate trial. Note that the Senate conducts much of its business based on precedent. There were three ties in the trial of President Andrew Johnson in 1868. Chief Justice Salmon P. Chase voted to break two of the ties. But Fox is told in a modern Senate trial, if there is a tie vote on anything, the issue would fail. The Vice President isn’t present to break the tie. Fox is told Roberts is not expected to inject himself into the trial and break a tie, ala Chief Justice Chase.

Everything about witnesses hinges on how the Senate frames a given roll call vote.

"There are so many permutations," said one GOP source familiar with the process. "What exactly is the vote going to be on? It all depends on the batting order."

In other words, the Senate could vote initially to go down the road to try to summon or reject witnesses. But, even if the Senate approves the idea of witnesses, it’s unclear if the Senate has the votes to call or reject specific witnesses. These are separate votes on the floor.

"Do they call (Former National Security Advisor John) Bolton? Do they call (Mike) Pompeo?" said one source.

That said, a senior GOP source augured a few days ago the trial had "a 90 percent chance" to be wrapped up over the weekend. That number dropped over the Bolton book. The source suggested that perhaps there is now a "five in six chance" that the Senate concludes by Sunday.

That said, senators often seek various avenues to find their way out of political cul-de-sacs – and simultaneously give themselves cover.

This is where the Senate sometimes devises a "devil's bargain" of sorts. Senate leaders sometimes formulate a roster of votes on amendments (or, in this case, witnesses). But they design the package so it's destined to fail. That way all senators can tout the fact that they voted for "X." But the Senate defeated the issue.

The Senate engineers these devil's bargains – not so much so senators get what they want – but to block the other side from getting what it wants. A good example of this came in the spring of 2013. The Senate considered a series of gun measures – from the left and right - after the massacre at Sandy Hook Elementary in late 2012. Several of the proposals had 51 votes to pass. But liberal Democrats weren’t going to allow conservative gun ideas to get through. The right wouldn’t permit tighter gun control. So the Senate amalgamated the votes so that nothing would pass. And nothing did. But everyone got to say they voted for "X" and voted against "Y."

One wonders if senators may try to draft a proposal on various slates of witnesses – all designed to fail. That way senators can say they supported this or that. But the Senate defeated the effort. Senator can then tell voters "they tried." Republicans loyal to the President can show Mr. Trump they successfully blocked witnesses. Democrats can use the votes as evidence to show the voters that the GOP Senate didn't want "a fair trial."

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But it all comes down to the votes. And everything is teetering on a razor’s edge.