The Senate on Saturday voted 55-45 to allow witnesses to be subpoenaed or deposed in President Donald Trump's second impeachment trial.
The surprise twist comes after the House managers said they want to depose a witness who has new information about Trump’s response to the Jan. 6 insurrection on the Capitol they’re charging him with inciting.
Washington GOP Rep. Jaime Herrera Beutler, who voted to impeach Trump, issued a statement late Friday confirming and elaborating on a CNN report about Trump’s response to the attack in a phone call with House Republican leader Kevin McCarthy. She said McCarthy relayed the details of the call to her.
“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 account came at a crucial time in the Senate trial: the stage where the prosecution and defense had to decide whether to request the Senate allow them to subpoena witnesses and documents.
As the Senate reconvened Saturday morning, lead House impeachment manager Jamie Raskin said he believes his team has proven its case. But he said Herrera Beutler's statement is “an additional critical piece of corroborating evidence further confirming the charges” against Trump.
“We would like the opportunity to subpoena Congresswoman Herrera regarding her communications with House Minority Leader Kevin McCarthy and to subpoena her contemporaneous notes that she made regarding what President Trump told Kevin McCarthy in the middle of the insurrection,” the Maryland Democrat said.
Raskin said the managers would be prepared to depose Herrera Beutler over Zoom as soon as she is available, noting the deposition would take “an hour or less.”
He noted that Herrera Beutler said in her statement that she hoped others would come forward with information about Trump's response and if anyone did, the managers would also be interested in their depositions. Notably, Raskin did not request to subpoena McCarthy or Trump.
Trump attorney Michael van der Veen gave an angry speech criticizing the managers’ request to depose a witness as an attempt to salvage their case as the Senate had been prepared to acquit Trump of inciting insurrection.
“It's about the incitement. It’s not about what happened afterwards,” van der Veen said, calling the Trump-McCarthy call “irrelevant stuff.”
He also said it’s his understanding that McCarthy disputes the account — a claim made to tamp down interest in hearing from Herrera Beutler, but one that may lead to more interest in senators hearing from McCarthy.
Raskin disagreed with van der Veen's argument that the new evidence is not relevant. “The dereliction of duty is built into the incitement charge, obviously,” he
said. “So it’s further evidence of [Trump's] intent and what his
conduct is,” Raskin said.
It was not yet clear after Saturday’s vote how many witnesses would actually be deposed.
“The only thing that I ask [is] if you vote for witnesses, do not handcuff me by limiting the number of witnesses that I can have,” van der Veen said, noting he would now need to do “a thorough investigation” on the events of Jan. 6 that the House did not do.
Senate Democrats were divided Saturday morning over whether they personally wanted to hear from McCarthy or other witnesses in light of the news but for the most part deferred to the House managers to make the call.
“I don’t think our opinions really matter. It’s what the House managers decide,” Ohio Sen. Sherrod Brown said.
Even Democrats who said they didn’t need to hear from witnesses said they’d support calling them if the managers made a request, which the vote bore out.
The vote ensures there will be at least a brief delay in the trial for Herrera Beutler to be deposed, after which the Senate would vote to decide whether her testimony is admissible. It’s unclear though if any additional witnesses will be deposed or how long the proceedings will be delayed.
Five Republicans joined all 50 Democrats in voting to call for witnesses: Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska and Lindsey Graham of South Carolina.
All but Graham have been considering convicting Trump. Graham, a steadfast Trump ally who plans to acquit, told reporters earlier Saturday that he was annoyed with the media dropping information right before the vote and that it was the House's responsibility to have investigated claims like the one Herrera Beutler made.
“But if you want to have a delay in this case, we’re going to have a big delay,” he said. “We’re going to do what they should have done. We should talk to [Speaker Nancy] Pelosi. We should talk to everybody about the security footprint.”
As the vote closed, West Virginia Democrat Joe Manchin III talked to his neighbor Tammy Baldwin, gesturing and pointing at the GOP side of the chamber, seeming to discuss the Republicans who joined the yeas.
After the vote, the Senate entered a quorum call, a period of limbo as things get sorted out behind the scenes. Quiet chatter crescendoed as senators stood and formed huddles to discuss the issue of witnesses.
Collins and Murkowski leaned far forward over their desk to talk to Minority Leader Mitch McConnell’s staff who turned in their seats to engage with them.
Romney made a beeline from his back row corner seat towards the center of the chamber to talk to Collins and Murkowski.
He eventually entered a conversation with Graham, who changed his vote to join Romney and Democrats in favor of witnesses. Graham made emphatic gestures with his arms, as Romney remained still.
Senate Majority Leader Charles E. Schumer recessed the Senate until 12:30 p.m., citing "discussions underway" about reaching an agreement to limit the witnesses.
Sen. Bill Cassidy, asked Saturday if he was expecting this turn of events, threw up his hands. Cassidy voted against allowing witnesses, but has been closely watched as a possible vote to convict Trump.
"Shelby says he's seen three of these and this is the craziest," the Louisiana Republican said.
Katherine Tully-McManus contributed to this story.