Former National Security Advisor John Bolton on Monday released a statement confirming that he would comply with a Senate subpoena to testify in the chamber’s impeachment trial of President Donald Trump. The development reflects a significant change of position from Bolton, who in November refused to appear before congressional investigators impeachment panel in the House and promised to fight any subsequent subpoenas in court.
The potentially groundbreaking testimony Bolton could offer regarding the administration’s decisions to withhold military aid to Ukraine — if that testimony actually happens — has only intensified demands for Senate Republicans to break from Senate Majority Leader Mitch McConnell (R-Ky.), and ensure witnesses testify during the proceedings.
But the potential for new information did not affect the resolve of Sen. Marco Rubio (R-Fla.), who said he would not vote in favor of subpoenaing Bolton.
Responding to a question from CNN’s senior congressional correspondent Manu Raju, Rubio said he was not interested in hearing new testimony because he believed Senators “should be constrained by the information that those [articles of impeachment] are based on.”
Rubio on why he would vote against a subpoena of Bolton: "I think in my view our inquiry should be based on the testimony that they took, we are acting on articles of impeachment. We should be constrained by the information that those articles are based on." pic.twitter.com/IOyCkw6ZxU
— Manu Raju (@mkraju) January 6, 2020
Rubio then defended his position, saying the Senate should rely on identical information used by the House when it voted to impeach the president.
“Worth repeating. The testimony & evidence considered in a Senate impeachment trial should be the same testimony & evidence the House relied upon when they passed the Articles of Impeachment,” Rubio tweeted. “Our job is to vote on what the House passed, not to conduct an open ended inquiry.”
The testimony & evidence considered in a Senate impeachment trial should be the same testimony & evidence the House relied upon when they passed the Articles of Impeachment.
Our job is to vote on what the House passed,not to conduct an open ended inquiry.
— Marco Rubio (@marcorubio) January 6, 2020
Legal experts quickly derided Rubio’s stated reasoning, which seems to ignore that the second article of impeachment – obstruction of Congress – was based in part on the administration’s efforts to block testimony from officials like Bolton.
“Marco — That’s both utterly wrong and utterly ahistorical. In fact, to the contrary, in every impeachment since the founding, the Senate has taken some evidence,” former deputy assistant secretary for policy in the Department of Homeland Security Paul Rosenzweig tweeted.
Marco — That's both utterly wrong and utterly ahistorical. In fact, to the contrary, in every impeachment since the founding, the Senate has taken some evidence.
— Paul Rosenzweig (@RosenzweigP) January 6, 2020
Attorney Jake Laperruque highlighted the absurdity of Rubio’s statement by offering a hypothetical scenario.
“By this logic, if tomorrow the White House released a series of emails and texts showing President Trump explicitly ordering staff to withhold Ukraine aid, Senators shouldn’t consider it,” Laperruque tweeted.
The Wall Street Journal’s political editor Ben Pershing pointed out that witnesses were called during the impeachment trials of both former presidents Bill Clinton and Andrew Johnson (Sen. McConnell has said he wants Trump’s trial to have the same rules as the Clinton trial).
Whether you're for or against calling witnesses, it's worth noting that this principle described by Rubio was not followed during the Clinton impeachment. The Senate took videotaped testimony from Lewinsky, Jordan and Blumenthal, none of whom testified to the House. https://t.co/eM4ZV1kpgx
— Ben Pershing (@benpershing) January 6, 2020
Former Justice Department attorney Eric Columbus responded in kind, saying Rubio was “apparently unfamiliar with Senate impeachment rules.” He pointed to an excerpt from the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials.
— Eric Columbus (@EricColumbus) January 6, 2020
Those rules state [emphasis added]:
“The Senate shall have power to compel the attendance of witnesses, to enforce obedience to its orders, mandates, writs, precepts, and judgments, to preserve order, and to punish in a summary way contempts of, and disobedience to, its authority, orders, mandates, writs, precepts, or judgments, and to make all lawful orders, rules, and regulations which it may deem essential or conducive to the ends of justice.”
Berkeley Law Professor Orin Kerr, who donated to Rubio’s 2016 presidential campaign, pointed out that the Florida Senator’s explanation defied the Constitution and the writings of America’s Founders.
The Constitution says it's the Senate's job to "try all Impeachments." It's a trial, not an appellate argument based only on the record from the House. Federalist 65 says the Senate's trial "can never be tied down by such strict rules . . . [in] the delineation of the offense."
— Orin Kerr (@OrinKerr) January 6, 2020
CNN legal analyst and former federal prosecutor and Elie Honig said Rubio’s argument was entirely “made up.”
You can repeat it all day long – it’s still untrue and something you made up @marcorubio.
Also: what are you afraid of? https://t.co/8qe8S0nvbZ
— Elie Honig (@eliehonig) January 6, 2020
Honig’s CNN legal analyst colleague, former federal prosecutor Renato Mariotti, noted that the House could easily eliminate Rubio’s argument by subpoenaing testimony from Bolton.
The House should subpoena Bolton before it sends over the articles of impeachment, which would eliminate this argument. https://t.co/J4cytgasOQ
— Renato Mariotti (@renato_mariotti) January 6, 2020
[image via ANDREW CABALLERO-REYNOLDS/AFP via Getty Images]