Deputy White House Counsel Patrick Philbin responded with a very broad assertion: that regardless of personal motives, as long as Trump had any official motive, “we think it follows even more clearly that cannot possibly be the basis for an impeachable offense.” Philbin argued that senators would then be put in the position of trying to deduce how much of a motive for a decision was personal vs. official.
Trump lawyer Alan Dershowitz later extended the argument in a remarkable way, saying that even a president trying to help his own reelection bid could be construed as working in the public interest.
“If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment,” Dershowitz said.
Dershowitz’s comment was the most controversial of the day, with Democrats arguing that it opened the door to presidents doing basically anything they want for their own purposes.
You could also deduce from the question a possible off-ramp for Romney, Collins and Murkowski to vote to acquit Trump: the idea that he may have been trying to help himself, yes, but that he also had official, legitimate motivations.
2. Murkowski with a key Bolton question
As we approached the end of the Q&A session on Thursday night, the big looming question -- as it ever was -- was whether the Senate would vote for John Bolton to testify.
And one key vote asked an interesting question in that regard.
Murkowski, who would seem to be a must-have vote for Bolton’s testimony asked Trump’s defense team, "Why should this body not call in Ambassador Bolton?” And crucially, she included this statement in her question: “This dispute about material facts weighs in favor of calling additional witnesses with direct knowledge.”
Philbin responded that it would set a damaging precedent for the Senate to be forced to do investigative work that the House could do.
“It will do grave damage to this body to say that the proceedings in the House don’t have to really be complete, you don’t have to subpoena the witnesses that you think are necessary to prove your case, you don’t really have to put it all ll together before you bring the package here," Philbin said.
So Murkowski now sounds like a yes on having Bolton testify, and she seemed to at least be giving Trump’s team a chance to tell her why she shouldn’t vote that way.
Of course, she’s a necessary-but-not-sufficient vote. The bigger indicator Thursday night will be Sen. Lamar Alexander (R-Tenn.), who told CNN he’d announce his decision the conclusion of Thursday’s session. Alexander, who is retiring, was the fourth GOP senator to say he’d vote for the ability to call witnesses -- and Democrats need four GOP votes -- though he didn’t commit to specific witnesses at the time.
3. Sekulow won’t say who pays Giuliani
Sen. Jack Reed (D-R.I.) on Thursday gave both sides a swing at a question many have been asking: Who pays for Trump lawyer Rudolph W. Giuliani’s travel and expenses? We know Trump doesn’t pay Giuliani, and some have suggested perhaps he’s monetizing his work for Trump by getting extra business from foreign clients.
Given the chance to address the issue, Trump’s legal team took a pass.
Appearing after lead House impeachment manager Rep. Adam B. Schiff (D-Calif.) addressed the issue, Jay Sekulow — who, like Giuliani, is a personal lawyer to Trump — declined to shed any light on how Giuliani’s travel and expenses are funded. Sekulow instead attacked Schiff and suggested this was a distraction.
Sekulow made a number of accusations about alleged corruption by Hunter Biden in Ukraine, and added, “You’re concerned about what Rudolph W. Giuliani, the president’s lawyer, was doing when he was over trying to determine what was going on in Ukraine?”
That was indeed the subject of the question. And Sekulow didn’t answer it.
But it’s not the first time Sekulow has failed to provide such an answer. Back in 2017, he said he didn’t even know who was paying him.
4. Philbin says trading information with foreign actors is also okay
Dershowitz was nabbing headlines for much of the day Wednesday for the way he broadened Trump’s defense. But Philbin near the end of Wednesday’s proceedings made another bold claim. He responded to a question from Sen. Christopher A. Coons (D-Del.) about whether Trump considers foreign interference illegal, and Philbin suggested he didn’t, necessarily.
“Mere information is not something that would violate the campaign finance laws,” Philbin said. “And if there is credible information, credible information of wrongdoing by someone who is running for a public office, it’s not campaign interference for credible information about wrongdoing to be brought to light.”
At the next break, Democratic senators responded in awe that a White House lawyer just suggested this. Receiving “a thing of value” in a campaign from foreign actors is illegal, and House managers brought it up quickly on the floor after that.
“I was stunned to hear that now, apparently, it’s okay for the president to get information from foreign governments in an election,” said Rep. Zoe Lofgren (D-Calif.), one of the House managers. “That’s news to me.”
“We’ve witnessed over the course of the last few days and the long day today, a remarkable lowering of the bar to the point now where everything’s okay as long as the president believes it’s in his reelection interest,” Schiff said.
5. A key admission: Giuliani wasn’t conducting foreign policy
On Thursday, we got a rare bipartisan question — from Collins, Murkowski and Democratic Sens. Kyrsten Sinema (Ariz.) and Joe Manchin III (W.Va.). It was about whether Trump would prevent private citizens from conducting foreign policy, which is prohibited by the Logan Act.
The unnamed target of the question as obvious Giuliani. (I’ve written about Giuliani and the Logan Act before — albeit with respect to Venezuela.)
Philbin acknowledged the question appeared to be about Giuliani and clarified that “there was no conduct of foreign policy being carried out here by a private person.” He said sometimes presidents use confidants to serve as messengers with foreign governments, pointing to George Washington using Gouverneur Morris to talk to France. (Morris, for what it’s worth, did this prior to the Logan Act’s enactment in 1799.)
Schiff later seized on the answer. "They just undermined their entire argument” that these investigations were about rooting out corruption, he said. If that was the foreign policy goal, after all, and Giuliani was pushing for such investigations, how could he not be conducting foreign policy?
Trump’s legal team has indeed oscillated between arguing Giuliani was acting as Trump’s personal lawyer and that he was furthering official foreign policy goals — depending upon which role has better suited its arguments.
6. Trump’s team is unaware of any early Trump concerns about Bidens in Ukraine
Another interesting exchange Wednesday — perhaps not coincidentally — also began with a question from Collins and Murkowski.
They asked Trump’s legal defense team whether they had any indication Trump was concerned about the Bidens’ actions in Ukraine before former vice president Joe Biden became a candidate for president. Trump’s lawyers had nothing.
“It wasn’t thoroughly pursued in the record,” Philbin said. “So I can’t point to something in the record that shows President Trump at an earlier time mentioning specifically something related to Joe or Hunter Biden.”
Dershowitz added later that even if Trump wasn’t previously interested in the issue, it would be okay. He said that if someone is running “and he has a corrupt son, the fact that he’s announced his candidacy is a very good reason for upping the interest. If he wasn’t running for president, he’s a has-been.”
There has been plenty of evidence that Trump’s interest in corruption is very specific and self-serving; the only two investigations in Ukraine he has called for, for instance, involve his own pet political causes. The answer Collins and Murkowski elicited drove that home.
If we’re reading the tea leaves again here, it also suggests Collins and Murkowski might be skeptical of the argument that Trump wasn’t looking out only for himself with his actions.
7. Manchin’s scorching question for Dershowitz
One of the most likely potential crossover votes on the Democratic side is Manchin, who comes from very pro-Trump West Virginia. But Manchin took his turn Wednesday to offer a question of Trump’s legal team that oozed with sarcasm.
After noting the legal consensus that the Constitution’s “high crimes and misdemeanors” clause doesn’t require statutory crimes for removal of a president and that this was the case dating back to English common law, he then turned his focus on Dershowitz.
“Even Mr. Dershowitz said in 1998 that an impeachable offense, quote, certainly doesn’t have to be a crime, end quote,” Manchin wrote, before asking Dershowitz: “What has happened in the past 22 years to change the original intent of the Framers and the historic meaning of the term high crimes and misdemeanors?”
Rather than dwell upon Manchin’s shot, Dershowitz just addressed his own personal evolution on the subject.
“What happened since 1998 is that I studied more, did more research, read more documents and, like any academic, altered my views,” Dershowitz said. “That’s what happens. That’s what professors ought to do.”
The question by itself was something. That it came from Manchin was something more.