New revelation could derail plan for Senate to acquit Trump Saturday

Fresh questions arise about timeline that may spur Senate to consider witnesses

Sen. Bill Cassidy of Louisiana, the Republican  senator who has seemed most persuaded by the House managers' case, walks into the Senate Reception room on the second to last day of the Senate Impeachment trial for former President Donald Trump on Friday. (The Washington Post/POOL)
Sen. Bill Cassidy of Louisiana, the Republican senator who has seemed most persuaded by the House managers' case, walks into the Senate Reception room on the second to last day of the Senate Impeachment trial for former President Donald Trump on Friday. (The Washington Post/POOL)
Posted February 13, 2021 at 4:08am, Updated at 8:20am

The Senate was preparing to conclude former President Donald Trump's second impeachment trial Saturday and hand him another acquittal. But then news broke late Friday of a damning statement Trump made to House Republican leader Kevin McCarthy during the Jan. 6 insurrection on the Capitol the House is charging him with inciting.

The new details of Trump's reaction to the Capitol attack could influence senators' thinking ahead of the vote, and even lead to a delay in the trial's conclusion if the prosecution, defense or senators want to call witnesses to confirm or rebut the account.

[Combative Trump defense foretells likely impeachment acquittal]

CNN reported that Trump responded to House Republican leader Kevin McCarthy asking the then-president on a phone call during the Capitol breach to tell his supporters to end their attacks by telling McCarthy the rioters "are more upset about the election than you are," citing lawmakers McCarthy briefed on the call.

Washington GOP Rep. Jaime Herrera Beutler, who voted to impeach Trump and was one of the lawmakers cited in the CNN report, confirmed and elaborated on the account in a statement calling on others with information on Trump's response Jan. 6 to come forward. She had previously relayed the McCarthy-Trump call to her local paper, The Daily News, on Jan. 17, but it didn't get national attention.

“When McCarthy finally reached the president on January 6 and asked him to publicly and forcefully call off the riot, the president initially repeated the falsehood that it was antifa that had breached the Capitol," she said. "McCarthy refuted that and told the president that these were Trump supporters. That’s when, according to McCarthy, the president said:Well, Kevin, I guess these people are more upset about the election than you are.’"

The Senate is set to reconvene the trial Saturday at 10 a.m. Senators had expected the House impeachment managers and Trump's defense team to forgo calling witnesses or entering late motions to introduce new evidence, as the procedures for the trial allow, and to proceed straight to closing arguments and a final vote.

That plan seemed up in the air with the new revelation considering senators during the question-and-answer portion of the trial sought more information about the timeline in which Trump learned the Capitol had been breached and how he responded.

Adds to timeline confusion

Republicans weighing conviction, like Bill Cassidy of Louisiana, Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah, were especially interested in the timeline. Most of them felt the answers the defense provided did not clarify Trump's response on Jan. 6, so they're likely to be interested in the new details on his phone call with McCarthy.

During Friday's session, Cassidy had asked about the House managers arguing Trump knew Vice President Mike Pence was evacuated from the Senate, per a phone call with Alabama GOP Sen. Tommy Tuberville, before he tweeted “Pence didn't have the courage” to stop certification of the election results. 

"Does this show that President Trump was tolerant of the intimidation of Vice President Pence?" Cassidy asked, posing the question to both the prosecution and defense.

He was not satisfied with the defense’s response disputing the premise of his question and the claim they can’t know the facts because the House did nothing to investigate.

“I didn’t think it was a very good answer,” Cassidy said. He specifically took issue with the defense calling Tuberville’s account “hearsay” even though Tuberville has repeatedly confirmed it.

Tuberville told reporters Friday he doesn't know exactly what time he spoke with Trump or if it was before the tweet in question, but he confirmed he told Trump that Pence was being evacuated.

"I said 'Mr. President, they've taken the Vice President out. They want me to get off the phone, I gotta go,'" he said.

Tuberville said he doesn't know if Trump knew Pence was in danger before that or how he reacted to him saying the vice president was being evacuated.

"I don't remember," he said. "Because they were dragging me. They had me by the arm."

The House impeachment managers had sent a letter inviting Trump to testify before the trial started, but his lawyers declined on his behalf. Lead House manager Jamie Raskin argued in response to Cassidy's question that Trump's decision not to testify can be used to draw an "adverse inference" about any holes in the evidentiary record he's declining to fill.

Cassidy said he is not a lawyer and would want to consult one about "adverse inference" but he seemed to buy into the prosecution's argument.

“The real issue is what was the president’s intent," he said. "Only the president could answer that. And the president chose not to testify.”

Depose McCarthy and Tuberville?

Senators largely had not reacted to the new details of McCarthy's phone call with Trump by Saturday morning. But Rhode Island Democrat Sheldon Whitehouse said in a Twitter thread that Trump's lawyers have an ethical obligation to clear up their "misrepresentations."

Whitehouse suggested the Senate could suspend the trial to depose McCarthy and Tuberville.

The comment was telling considering earlier Friday Whitehouse had told reporters witnesses would not be called in the trial, saying definitively, "That's not gonna happen."

Early Saturday morning, Oregon Sen. Jeff Merkley re-tweeted Whitehouse's tweet, suggesting what may perhaps be a gathering sentiment in the Democratic caucus. "Senator Whitehouse nailed it," he tweeted.

Romney said he would be vote to allow witnesses if either side were to request that, suggesting there could be bipartisan support for prolonging the trial.

"I would support additional witnesses if the counsel on either side ... wishes to call it," he told reporters just before the trial was to begin Saturday morning.

But one Democrat questioned the reason for calling witnesses. "I haven't heard a compelling argument for why we need witnesses," Sen. Chris Coons of Delaware said.

And Sen. Bob Casey suggested witness testimony wouldn't change the outcome.

"My gut tells me no, and I think that the record is already replete with evidence," the Pennsylvania Democrat said.

After making a big push for witnesses in Trump's first impeachment trial, Senate Democrats have said for weeks that witnesses were not needed in the second because senators themselves were witnesses to the insurrection.

But Senate Majority Leader Charles E. Schumer and some in his caucus had been careful never to rule it out and instead defer to the House managers to decide whether to call witnesses.

Leader impeachment manager Maryland Democratic Rep. Jamie Raskin declined to comment as he left the Capitol Friday night when reporters asked if the prosecution planned to call witnesses. But another manager, Pennsylvania Democratic Rep. Madeleine Dean, had signaled that was unlikely, noting, “The American people witnessed this. The senators witnessed this.”

Without witnesses, Trump’s second trial was on track to be significantly shorter than his first, ending Saturday after just five days. But even before Friday night's revelation, it appeared there would be more Republican support to convict, despite falling short of the 67 votes needed, than in Trump's first trial.

Last February the Senate acquitted Trump of two charges: abuse of power related to his pressure campaign on Ukraine to investigate now-President Joe Biden and obstruction of Congress for his administration’s refusal to cooperate in the House impeachment inquiry into that matter.

All but one Republican, Romney, voted to acquit Trump of both charges. Romney only voted to convict on abuse of power. 

This time there’s a single impeachment article, incitement of insurrection, and a handful of Republicans besides Romney are considering voting to convict.

While not a single GOP senator had announced a planned conviction vote as of press time, there were several undecided -- even before the new details the McCarthy-Trump call.

Most likely to convict

The Republicans considered most likely to convict are the six who joined with Democrats Tuesday in a 56-44 vote dismissing the defense’s primary objection and determining the Senate has the constitutional jurisdiction to try a former president. 

Those six Republicans were Cassidy, Collins, Murkowski, Romney, Ben Sasse of Nebraska and Patrick J. Toomey of Pennsylvania.

Cassidy has been the most vocal about how the House managers’ case is influencing him.

“There’s a proverb: your mind is persuaded but you should hear the other side,” Cassidy told reporters Thursday when asked if he believes Trump is responsible for the insurrection.

Still, after hearing the other side Friday, Cassidy was not prepared to say how he’d vote. 

“I’m gonna go home and write my thoughts out, because I find when you write your thoughts out, you establish clarity,” he said.

Of the other five senators who voted “yes” on the constitutionality question, all but Sasse — who has repeatedly declined to answer questions — have offered some clues to reporters about how they may vote. 

Collins left Friday’s question-and-answer session unsatisfied with the response to the Trump timeline questions she and others posed. But she seemed to be leaning toward siding with the defense. 

“I didn’t really feel that I got a response, but I’m not sure that that was the fault of the counsel,” Collins said. “One of the problems is that with the House not having held hearings to establish exactly what happened when, it’s difficult to answer a question like that. I was hoping that one side or the other would have, because I think it’s a very important question.”

Murkowski, who joined Collins in the question to the defense about Trump’s timeline, also admitted the details of his response to the attack weren’t exactly cleared up. But she said Trump’s lawyers “did a good job in terms of responding, and that’s what I was certainly looking for.” 

Earlier in the day after Trump’s team presented the first part of their case, Murkowski said, “They are putting on a good defense” and are “more on their game today than what I saw the other day.”

She was referring to their arguments Tuesday on the constitutionality of the trial, which she said kicked off their case “in a way that wasn’t as strong.”

The House managers “laid their case out and they’ve done it with a chronology and timeline that people could follow. And so it was important to have a significant response today from” the defense, Murkowski said. 

The CNN report cited a source close to Pence saying defense attorney Michael van der Veen lied when he said "at no point" did Trump know his vice president was in danger. It was not immediately clear how that might shift Collins and Murkowski's thinking on the defense's response to the timeline questions.

Romney — who had joined Collins in a question about whether Trump knew Pence had been evacuated from the Senate for his safety when he sent his disparaging tweet about the vice president — only told reporters Friday that he appreciated the answers that came in to his and Cassidy’s questions. 

Some questions Romney had prepared but did not ask during the session, however, indicate he’s leaning toward conviction. For example, he had wanted to ask the House managers if it was necessary for them to prove that Trump intended for the mob to enter the Capitol and cause mayhem and to ask the defense whether Trump’s call to the Georgia secretary of state was an attempt to have him falsify the election results.

Toomey, who is retiring after this term, hasn’t made any public comments since the main presentations, so it’s hard to judge where he stands. But he told reporters after Tuesday’s debate on the constitutional question that the House managers’ arguments were “persuasive and well grounded in the Constitution and precedent,” while the defense “had a weaker case to start with, and I don’t think it was very persuasive.”

Unconstitutional voters

Few, if any, of the 44 Republicans who voted Tuesday that the Senate lacks the constitutional jurisdiction to try a former president were expected to vote to convict Trump before Friday's development. It was unclear if that would change their views.

While a majority of the 44 had said they plan to acquit Trump in part because of their constitutional objections, some have claimed throughout the proceedings they are impartial jurors and listening to and considering the evidence of both sides. 

During the vote, all eyes will be on Senate Minority Leader Mitch McConnell, as various press reports citing anonymous sources close to the Kentucky Republican claim McConnell is open to conviction. 

Among the other Republicans claiming to be impartial jurors, John Thune of South Dakota, Charles E. Grassley of Iowa, Dan Sullivan of Alaska and Tuberville all left the Senate after Friday’s proceeding declining to say how they’d vote. 

Thune, the No. 2 in GOP leadership, ignored a question about whether his mind was made up. Tuberville said his was not: “I’m going to wait till the end. I’m a juror.”

Grassley may have made up his mind but wouldn’t tell CQ Roll Call how he planned to vote as he left the Capitol Friday. “You will hear me say that about two o'clock tomorrow,” he said.

Sullivan also wouldn’t say how he’s voting until Saturday. But he said the defense “did a strong job” in their presentation Friday and the House managers arguing Thursday that due process is discretionary “was a shocker.”

Chris Cioffi contributed to this report.