Senate Democrats learned of managers’ witness decision only minutes in advance

Should they seek to call a Republican lawmaker who was willing to talk about her knowledge of Trump’s dismissive comments to the House GOP leader who pleaded with him during the riot to call off his supporters? Should they call the leader himself, Kevin McCarthy (R-Calif.)? What about aides to former vice president Mike Pence, whose dramatic evacuation was caught on security video played for the first time publicly last week? Any of those moves risked extending the proceedings for weeks, but nonetheless, these potential surprise developments consumed the managers late into Friday night and in the wee hours Saturday, according to multiple Democrats familiar with the deliberations.

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In the end, the managers backed off, allowing the Senate vote to take place as expected, but not before a chaotic back-and-forth caught senators off-guard, sent Trump’s legal team into a fury, and exposed long-simmering tensions among Democrats over how aggressively to hold the former president accountable.

Even after House Democrats declared a moral victory, pointing to the seven Republican senators who voted to convict, the debate over witness testimony loomed large as key questions about Trump’s actions and motives remained unanswered.

Rep. Jamie B. Raskin (D-Md.), the lead impeachment manager, defended the decision on witnesses after Trump’s acquittal Saturday. He noted to reporters that several Republicans, including Senate Minority Leader Mitch McConnell (R-Ky.), had acknowledged that the managers had made their case yet opted to acquit Trump on a constitutional technicality.

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“We could have had 500 witnesses, and it would not have overcome the kinds of arguments being made by Mitch McConnell and other Republicans who were hanging their hats on the claim that it was somehow unconstitutional to try a former president,” he said. “They’re going to have to live with those arguments that they made, but we think that we overwhelmingly proved our case.”

The final push toward witnesses started Friday evening, when several Republican senators telegraphed their concern about Trump’s conduct as the rioters tore through the Capitol — particularly as it pertained to Pence.

During a question-and-answer period, Sens. Mitt Romney (R-Utah) and Susan Collins (R-Maine) asked the parties whether Trump was aware that Pence had been rushed to safety when he sent a tweet attacking Pence for not having “the courage to do what should have been done.” Later, Sen. Bill Cassidy (R-La.) also asked about Trump and Pence: Had Trump been “tolerant of the intimidation” of his vice president?

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Trump lawyer Michael T. van der Veen dodged those questions, challenging the managers’ evidence and telling Cassidy that the basis for his question was “somebody who had some hearsay that they heard the night before at a bar somewhere.”

He then made a claim that raised eyebrows on both sides of the aisle: “I’m sure Mr. Trump very much is concerned and was concerned for the safety and well-being of Mr. Pence and everybody else that was over here.”

Republicans, including Cassidy, knew that that plainly wasn’t true. Trump had not only tweeted his attack on Pence that day, but it also had been widely reported that at no point that day — or since — had he called to check on Pence’s welfare, even as some of his supporters attacking the Capitol were chanting, “Hang Mike Pence.”

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“I didn’t think it was a very good answer,” Cassidy said. “The real issue is, what was the president’s intent, right? Only the president could answer that, and the president chose not to testify.”

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Meanwhile, an explosive revelation appeared to get at that very question. While numerous news reports had described an angry mid-riot phone call between Trump and McCarthy, a CNN report late Friday reported a new quote — “Well, Kevin, I guess these people are more upset about the election than you are” — that backed the managers’ case that Trump did not act to stop the riot.

The quote had been relayed by Rep. Jaime Herrera Beutler, a moderate Republican from Washington state who had voted for Trump’s impeachment. She confirmed her account in a statement later that night, adding an admonition to those who had firsthand knowledge of Trump’s actions that day: “To the patriots who were standing next to the former president as these conversations were happening, or even to the former vice president: If you have something to add here, now would be the time.”

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Meanwhile, Democrats were beginning openly to question the expectation that the trial should conclude without witnesses. About an hour after Herrera Beutler released her statement, Sen. Sheldon Whitehouse (D-R.I.) noted that the new quote contradicted Trump’s lawyers, who claimed that the former president had acted swiftly to address the violence at the Capitol.

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“One way to clear it up,” Whitehouse said, was to suspend the trial, depose key witnesses and secure records from the White House to answer the key question: “What did Trump know, and when did he know it?”

The debate that ensued inside the managers’ Senate workspace — an ornate room just off the Senate floor, a few steps away from the office suite of Senate Majority Leader Charles E. Schumer (D-N.Y.) — was the culmination of a discussion that had already played out for weeks among Democrats.

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On one hand, fresh testimony could be the only way to convince Republicans — and the public at large — that Trump’s actions were truly depraved. On the other, most GOP senators had signaled that their minds were made up, and pursuing direct witnesses to Trump’s behavior — particularly inside the White House — promised to be a time-consuming affair.

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Key members of the Democratic team — particularly Raskin and counsel Barry Berke — saw the witness vote as a final opportunity to hold Trump accountable and get new voices on the record, according to a person with knowledge of the deliberations. They discussed calling Pence and his chief of staff, Marc Short, as well as McCarthy and others.

The managers decided to try to get in touch with Pence and Short, and they finally connected with a member of Pence’s orbit after the 10 a.m. vote. The response was not encouraging.

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Other roadblocks were obvious: It was not a standard trial where evidentiary motions could play out for months with no ill effects. Senate Democrats, not yet a month into their majority, were eager to get on with President Biden’s agenda, and extending the trial could alienate the small group of Republicans who had signaled they might convict. And calling any witness promised to be an extended affair: The trial rules called for a deposition process to precede any Senate testimony, and there was the possibility witnesses could go to court and further extend the timeline.

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Trump had already rejected a request to testify and, as Del. Stacey Plaskett (D-Virgin Islands) noted to reporters Saturday, other individuals who were in Trump’s vicinity on Jan. 6 “were not friendly . . . to us and would have required subpoenas and months of litigation.”

A House effort to secure testimony from former White House council Donald McGahn Jr. in the summer of 2019 remains in litigation a year and a half later, she noted.

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But outside the managers’ debate, momentum for witnesses was growing.

By Saturday morning, multiple liberal Democrats had joined the earlier call by Whitehouse, including Sens. Edward J. Markey (D-Mass.) and Jeff Merkley (D-Ore.).

But the bulk of Senate Democrats arrived in the Capitol not expecting the face a witness vote. The case the House had presented, they thought, was overwhelming and witnesses would do little to move GOP votes.

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“They made such a strong case,” said Sen. Mazie Hirono (D-Hawaii). “If I thought any further witnesses would change any Republican minds, I’d say go for it. But I don’t think so.”

On a 9 a.m. caucus call, Schumer repeated a line that had become a mantra for Senate Democrats over the previous week: If the managers chose to call witnesses, Democrats would support them. But multiple people on the call said they were left with the impression that the issue had been settled and that witnesses would not be called.

According to a person close to the managers who was not authorized to comment publicly and spoke on the condition of anonymity, Schumer’s staff had been briefed Friday night that the witness question had not been resolved — and it remained a live issue well into Saturday morning.

Herrera Beutler’s statement was intriguing to the managers: She was a potential friendly witness who could testify, albeit indirectly, about Trump’s state of mind on Jan. 6. The managers had homed in on a limited request to seek her testimony.

The final decision, though, wasn’t made until minutes before the Senate was scheduled to convene. Schumer’s staff was informed of the decision at 9:55 a.m. — five minutes before the gavel was to go down.

Raskin rose and asked the Senate to call Herrera Beutler, calling the account she relayed “an additional critical piece of corroborating evidence further confirming the charges before you, as well as the president’s willful dereliction of duty and desertion of duty as commander in chief of the United States.”

Van der Veen, Trump’s lawyer, thundered in response, suggesting the request violated a prior “stipulation” not to call witnesses. He issued a threat: “They want to have witnesses, I’m going to need at least over 100 depositions, not just one.”

The threat was largely an idle one — it was up to the Senate, not Trump’s team, how many witnesses could be called, but the message was clear: Calling witnesses was a recipe for delay.

On a 54-to-46 vote, the Senate moved to authorize witnesses, a tally that carried a warning: Two Republican senators thought to be in play for conviction, Cassidy and Patrick J. Toomey (Pa.), had voted against witnesses — indicating they had seen enough.

The vote threw the Senate into temporary chaos as senators, aides, managers and defense lawyers all scrambled to figure out what was next. In fact, no one knew. Under the trial rules, the rules themselves would have to be renegotiated to account for witnesses.

Frustrations rose among Senate Democrats. One Democrat familiar with the internal discussions said “it was clear the managers had no plan” and “didn’t know what their next step was.”

Sen. Christopher A. Coons (D-Del.), a close ally of President Biden’s, visited the managers’ room off the Senate floor, according to a House aide. He told the managers any delay would cost Republican votes to convict — and potentially Democratic votes, too.

“The jury is ready to vote,” he told them. People want to get home for Valentine’s Day.”

Jonathan Kott, a spokesman for Coons, said the senator “was simply conveying to the House managers that several of his Republican colleagues told him there were no more votes on their side and their members were ready to fly home.”

Coons urged them to accept an emerging deal — introduce Herrera Beutler’s written statement into the trial record and move on with closing arguments, sidestepping any further debate over witnesses.

Less than two hours after the witness vote, Raskin returned to the floor and read Herrera Beutler’s statement out loud. “Mr. President, we have no further motions,” he said at 12:52 p.m.

Three hours later, Trump was acquitted.