1. Trump’s defense embraces the ‘and so what if he did it’ argument
So what if Trump did hold up Ukraine’s military aid to get the country to investigate former vice president Joe Biden? That argument was first made earlier this week by Trump defense lawyer and Harvard Law professor Alan Dershowitz, who elaborated Wednesday in eyebrow-raising fashion in response to a question from Sen. Ted Cruz (R-Tex.).
“Every public official that I know believes that his election is in the public interest,” Dershowitz said. “And 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.”
White House lawyers glommed onto that defense Wednesday in a less-explicit fashion. “All elected officials to some extent have in mind how their conduct, how their decisions, their policy decisions will affect the next election. There’s always some personal interest in the electoral outcome of policy,” White House Deputy Counsel Patrick Philbin said.
In other words, if Trump did have politics in mind when he held up Ukraine’s aid and an Oval Office meeting, well, that’s natural and maybe even normal and expected.
The White House leaned into that defense even when asked to defend Trump’s previous comments that he might accept information from foreign governments. It’s illegal to get campaign donations or a “thing of value” from a foreign source. But Philbin argued it’s okay to get information from a foreign government about a political opponent.
“Mere information is not something that would violate the campaign finance laws,” he said. “If there is 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.”
That came near the end of the day’s session, and House managers pounced on it.
“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 OK as long as the president believes it’s in his reelection interest,” lead House impeachment manager Adam B. Schiff (D-Calif.) responded.
2. The standoff over John Bolton testifying leans slightly toward Republicans
As Wednesday’s trial got started, Democrats got bad, though not surprising, news. Sen. Cory Gardner (R-Colo.) is one of Senate Republicans’ most vulnerable members up for reelection this November, and he said he will not vote to hear witnesses, including Trump former national security adviser John Bolton.
Also, Senate Minority Leader Charles E. Schumer (D-N.Y.) said it will be an “uphill” battle to win over four Senate Republicans to have witnesses.
Also, Democrats are at risk of a high-profile defection on which witnesses to call. Sen. Joe Manchin III (D-W.Va.) said he thinks it’s relevant to have Biden’s son, Hunter Biden, testify.
Meanwhile, it was revealed Wednesday that Bolton is in a battle with the White House over whether he can even publish his book as is. The National Security Council, which Bolton used to lead, said that Bolton’s book contains a “significant amount of classified information” and he’d have to rewrite it in concert with the White House if he wanted it published. Bolton pushed back Wednesday evening through a lawyer, who said they do not think the book contains classified material.
His lawyer asked for an expedited review of the book in preparation for possible Senate testimony. But it’s possible this could get mired in a bureaucratic review. And from there, it’s fair to ask that if the White House is trying to block Bolton’s book, how hard would it fight his actual testimony?
3. The bulk of the questions so far have been about whether the Senate should allow witnesses
There has been some back-and-forth on witnesses in the Senate chamber, but there’s a raging debate outside the chamber. On Tuesday evening, Senate Majority Leader Mitch McConnell (R-Ky.) told his fellow senators he doesn’t yet have the votes to block Democrats from calling witnesses.
On the Senate floor Wednesday, Trump’s defense framed calling witnesses as a slippery slope that could hurt the Senate as an institution, by making them the investigative body: “I think it’s vitally important for this chamber to consider what it really means to start having this chamber do all that investigatory work,” Philbin said.
The prosecution argued that it’s normal to have new witnesses and that the investigation isn’t limited to the House in impeachment. Thirty-seven “out of 40 witnesses who testified in the Andrew Johnson trial were new,” said impeachment manager Hakeem Jeffries (D-N.Y.). (But using history as precedent in impeachment is difficult because this is only the third presidential impeachment trial ever.)
4. Tough questions were the exception, not the rule
The bulk of senators’ questions did not engage with the other side. Some of those questions were transparently leading.
“Why should we be expected to believe that anything President Trump says has credibility?” Sen. Bernie Sanders (I-Vt.) asked the House managers at one point.
“Does the evidence in the records show that an investigation into the Burisma-Biden matter is in the national interest of the United States and its efforts to stop corruption?” Sen. Mike Crapo (D-Idaho) asked the Trump legal team.
The result was less substantive back-and-forth between congressional Democrats and the White House, and more chances for each side to rehash points we’ve already heard a lot by now.
5. Republican senators on the fence about witnesses asked careful, critical questions
The questions that were tough were notable, even more so when they came from the members who will be pivotal to extending the trial. The very first question of the day came from the three Republican senators most likely to vote in favor of witnesses — Susan Collins (Maine), Lisa Murkowski (Alaska) and Mitt Romney (Utah). And it was quite substantive:
If President Trump had more than one motive for his alleged conduct, such as the pursuit of personal political advantage, rooting out corruption and the promotion of national interests, how should the Senate consider more than one motive in its assessment of Article 1?
Trump’s lawyers responded that you’d have to prove beyond a shadow of a doubt that Trump asked for the Biden investigations only for political purposes to impeach him.
Murkowski also asked Trump’s defense to explain why the White House blocked subpoenas. Later, she and others asked what standard of proof they should use when deciding whether to convict Trump.
Romney tweeted that he submitted a list of the following questions, all of which do seem aimed at trying to figure out whether Trump did what he’s accused of.
And perhaps most notably, Murkowski and Collins asked Trump’s defense whether Trump ever mentioned the Bidens before Joe Biden got in the race to challenge him — echoing a main talking point from Democrats. (The White House’s answer was essentially, “No, there is no evidence of that,” but the House investigation was run by Democrats, so can we trust what they found?)
Late into the evening, these senators were still asking thoughtful questions. Romney asked the White House to pinpoint when Trump held up Ukraine’s aid, which would go a long way to understanding whether he did it for political purposes. (The White House didn’t have a clear answer.) Murkowski asked House Democrats why they didn’t try multiple times to subpoena officials, perhaps suggesting she was thinking about the obstruction of Congress impeachment charge. Collins asked Democrats why they didn’t charge Trump with bribery, which would match up to the criminal code. (Schiff answered because abuse of power was the most serious charge.)
In part because senators couldn’t elaborate or ask follow-up questions, it’s hard to divine from these questions how they will vote Friday.