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Ephrat Livni
Another historic Friday evening of impeachment at the Capitol.
POINT BREAK

Welcome to the Trump defense team’s impeachment trial nightmare

Washington DC
Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

Yesterday, at Donald Trump’s impeachment trial, one of the president’s chief defenders—White House counsel Pat Cipollone—suddenly found himself exposed and all alone in the US Senate, naked as it were, before his fellow Americans.

New revelations that the lawyer was present during a discussion of Trump’s allegedly corrupt Ukraine dealings suddenly thrust Cipollone into the awkward position of being simultaneously at the center of the case against the president and on the outs with co-counsel. “New facts suggest Mr. Cipollone was in the loop,” argued lead House impeachment manager Adam Schiff, urging senators to subpoena former national security adviser John Bolton, whose upcoming book will reportedly show Cipollone’s involvement.

Reuters
Awkward.

“Just as we predicted—and it didn’t require any clairvoyance,” Schiff quipped, jabbing at the defense’s recurring “mind-reading” theme. “The facts will come out.”

Cipollone, meanwhile, sat with his arms staunchly crossed, a conspicuously blank legal pad staring back at him from the desk, as the president’s other defenders gave him the freeze.

Deputy White House counsel Pat Philbin, brow furrowed, lips pursed, watched Schiff worriedly from behind glasses, never once glancing at his accused boss across the table who had apparently jeopardized the integrity of their entire defense. Philbin did, however, exchange pointed looks with Jay Sekulow, Trump’s personal defense counsel.

Just last Saturday, when Cipollone opened for the defense, he claimed to be eager to hear all the facts because the evidence shows the president is innocent. Now, there is reason to believe he participated in and helped Trump cover up corruption at a constitutional proceeding presided over by the Supreme Court chief justice.

It’s not a good look, to say the least, even if Trump did deny Bolton’s claims immediately.

Understandably then, Cipollone didn’t present for the defense. All he did was fuss with two glasses of water on the table, forgetting to thank the page who delivered the refreshments, perhaps because he was preoccupied with the possibility that this moment might go down in history as the one that marks the start of his infamy.

Your honor?

If Cipollone really was in the room with Trump while he discussed a corrupt scheme, as Bolton contends, and the lawyer knows the president withheld foreign aid to Ukraine to force an investigation of his political rival former vice president Joe Biden, a 2020 presidential contender, that would be highly problematic. For one thing, it would mean he lied his way through the American trial of the century to protect not only the president but himself.

Certainly, at any other American trial, a purely judicial proceeding rather than a mixed law-and-politics affair like impeachment, suspicions that defense counsel was in on the scheme with a defendant would be grounds for a new trial. But this wasn’t like other trials—as evidenced by the fight over witnesses and evidence, which are normally a given—and Cipollone had reason to be hopeful.

All he had to do was survive one grueling afternoon—four long lonely hours—and he would be home free. The senators would vote on the motion to hear witnesses after the prosecution and defense argued for and against, and Republicans were expected to defeat it with a narrow majority.

Catching a break

Still, the White House counsel spent the afternoon break before the vote pacing slowly. Cipollone walked, all alone, up and down the center aisle of the Senate chamber, hands in pockets, looking lost like never before. Occasionally, his eyes darted around eagerly, as if hoping to be called to join one of the huddles. It was a stark contrast to previous days, when Cipollone was greeted like a hero by Republican senators, who eagerly rushed up to him on trial breaks to shake his hand and express their support.

As Sekulow and Philbin exchanged notes at the defense table, lawyers crowded in front of Cipollone’s seat, making it impossible for him to join. Team Trump may not have consciously ostracized the accused attorney, but they definitely did block him. He tried easing into the in-crowd, failed, promptly returning to his march.

Cipollone did a full four laps up and down the aisle, never once meeting a friendly eye. Finally, he went for a bipartisan alliance, stopping to talk with Democratic senator Patty Murray of Washington at her desk. She seemed resigned more than delighted by the visit, barely smiling while he grinned and gesticulated exaggeratedly. Murray kept her arms crossed and unwaveringly faced forward.

As the senators were about to be seated, the White House counsel finally caught a break. Sekulow approached Cipollone, signaling his return to the fold.

The worst of it was over for him. The proceeding was called to order. Cipollone didn’t even bother with a notebook. He just waited for the vote, drinking water and listening to Philbin and Sekulow make the final case for the president.

Gain is loss, loss is gain

The co-counsel entirely ducked the substance of claims against the president (and their fellow lawyer). Instead, the defense offered a not-so-veiled-threat.

Trump’s lawyers warned that the senators would be stuck in impeachment proceedings indefinitely as they litigated privilege issues in court and called a parade of witnesses to counter the prosecution. Philbin urged the Senate not to put its “imprimatur” on the prosecution’s defective process.

Schiff got the last word before the vote, issuing his own much more dramatic warning. “Senators, there is a storm blowing through this Capitol!” He urged them to hold a full and fair trial, citing American founder Thomas Jefferson.

The storm was just a drizzle, literal and figurative. As a light rain fell on the Capitol outside, a majority of senators inside the chamber, 51 Republicans, voted to drift without anchor. Only Susan Collins of Maine and Mitt Romney of Utah sided with the 47 Democrats, for a total of 49 in favor of hearing witnesses and reviewing additional evidence.

Team Trump won. It was, after all, a foregone conclusion. Trump is expected to be acquitted on Wednesday, right after delivering the State of the Union in the House that impeached him.

But this story is probably not over for Cipollone—assuming the Trump administration deems Bolton’s whole book classified and fights to keep his direct evidence from coming to light. Philbin told senators this week that the White House is working with Bolton’s publishers on the clearance process right now, hinting at obstacles ahead while attempting to seem conciliatory.

Correction: An earlier version of this post mistakenly stated that 49 Democrats voted for witnesses.