Day eight of the impeachment trial offered, quite literally, a change of pace. The previous six days (after a day of fights over the rules) featured uninterrupted arguments from the House managers and the presidents’ attorneys. What may turn out to be the penultimate phase of the trial involved 16 hours of questioning (half today, half on Thursday) of the contending legal teams by senators via written submissions read to the world by presiding officer John Roberts. With answers generally limited to five minutes, it was a much snappier session characterized by more direct conflict between the two sides.
Having said that, the vast majority of questions have been proffered by senators to “their” side in order to reinforce well-established talking points. Democrats stuck to the basic argument that there was sufficient evidence that Trump abused his power by pressuring Ukraine to announce an investigation of the Bidens, then compounded that impeachable offense by covering it up via obstruction of Congress. Republicans dug in with their increasingly adamant claim that even if the House proves its case, it hasn’t met the minimum requirements for impeachment, and is trying to force the Senate to come up with evidence it could not secure.
The two sides didn’t always talk past each other. They clashed early on over the adequacy of White House claims of executive privilege, as the Washington Post reported:
Sens. John Kennedy (R-La.), John Cornyn (R-Tex.) and Marsha Blackburn (R-Tenn.) asked both sides why the House did not challenge claims of executive privilege and immunity during the impeachment proceedings.
It was the first question requesting an answer from both the House managers and Trump’s legal team, and the two sides were required to split the five minutes of time evenly.
Speaking for the managers, Rep. Hakeem Jeffries (D-N.Y.) said Trump never raised the question of executive privilege and instead relied on a “notion of blanket defiance” or “absolute immunity” without case law or jurisprudence cited to justify it.
White House Deputy Counsel Patrick Philbin said Trump had “specific rationales” for defying subpoenas and other requests from House investigators. Philbin denied that the president engaged in “blanket defiance.”
Another early moment of drama occurred when Alan Dershowitz burnished his claims of a unique understanding of constitutional law by claiming that Trump — or any other president — could legitimately use his powers to advance the cause of reelection as inherently in the national interest. As NBC News reported, this did turn heads and cause some heartburn for Team Trump:
Dershowitz said there were three possible motives for a quid pro quo in foreign policy: the public interest, personal political interest, and personal financial interest.
In the end, he argued, only the latter is corrupt.
“Every public official I know believes” their election “is in the public interest,” Dershowitz added.
Dershowitz’s argument was met with swift pushback.
NBC News/MSNBC legal analyst Neal Katyal, a former U.S. solicitor general, called Dershowitz’s argument “inane.”
“That would allow a president to do literally anything and destroy re-elections as a check on presidential behavior,” Katyal said. Referring to former President Richard Nixon’s involvement in the operation at Democratic national headquarters in 1972 that led to the Watergate scandal, he said: “I’m sure Nixon thought the break-in was okay because it aided his re-election, which was supposedly in the public interest, too.”
In the Senate and behind the scenes, of course, the focus remained on the possibility that, after this question period, a vote will be held on hearing additional witnesses. Of particular consideration is John Bolton, whose book with disclosures on Trump’s motives in dealing with Ukraine the White House is trying to block from publication. Republican senators known to be on the fence on this issue asked one very pointed question, as Talking Points Memo noted:
Sens. Lisa Murkowski (R-AK) and Susan Collins (R-ME) pitched President Donald Trump’s lawyers a curve ball Wednesday, asking a question that underscored the political motive behind Trump’s sudden interest in Ukrainian corruption.
The senators asked if Trump ever mentioned the Bidens in connection to corruption in Ukraine before the former Vice President announced his candidacy for president in April 2019.
Deputy Counsel to the President Patrick Philbin struggled to defuse the loaded question, spending some time explaining that his knowledge of what the President said comes only from the House’s limited inquiry and that some points were not “thoroughly pursued” in the record.
On the other hand, signs from the background maneuvering on the arithmetic of the witness vote indicated increasing self-confidence from Mitch McConnell, as the New York Times reported:
The White House and Senate Republicans worked aggressively on Wednesday to discount damaging revelations from John R. Bolton and line up the votes to block new witnesses that would bring President Trump’s impeachment trial to a swift close …
Senator John Barrasso of Wyoming, the No. 3 Senate Republican, declared that he had “heard enough” and predicted that the Senate would vote to acquit the president by week’s end.
“I’m ready to vote on final judgment,” Mr. Barrasso told reporters. Asked if Republicans planned to move directly to a vote on the two articles of impeachment on Friday, Mr. Barrasso said, “Yes, that’s the plan.”
By Wednesday afternoon, Democrats were sounding a note of pessimism about the prospect of witnesses and securing new evidence in the trial.
“We’ve always known it will be an uphill fight on witnesses and documents, because the president and Mitch McConnell put huge pressure on these folks,” Senator Chuck Schumer of New York, the Democratic leader, said during a break in the trial.
To add to the pressure on Senate Republicans to back away from a motion to hear Bolton, Trump attorney Jay Sekulow said on the floor that if witnesses are called at all he’d insist on calling Adam Schiff, both Bidens, the whistle-blower, and maybe others in a process that would take “months.”
Looking forward, on Thursday it’s possible that the Senate will focus on questions related entirely to the admissibility of additional evidence, particularly if there is renewed doubt about McConnell having the votes to bring the trial to a close without witnesses.
But for those who hope against hope that the Republican wall of shame protecting Trump will break, a hostile late-Wednesday question from alleged swing-vote-Senator Lisa Murkowski challenging House managers for not having revalidated allegedly improper subpoenas may have been dispiriting. Impeachment manager Sylvia Garcia responded with a fiery and un-apologetic defense of the House’s unconditional right to determine its own rules for impeachment proceedings. That won’t go over well in the Republican precincts of the lordly Senate.
House lead manager Adam Schiff noted later that the most important thing about the trial was the drift in the president’s defense from denying damning facts to denying there’s any problem with them. If the trial ends abruptly, that conclusion will be validated.
