WASHINGTON (CN) — Battered by the steady beat of damaging allegations from former national security adviser John Bolton, counsel for President Donald Trump capped opening arguments Tuesday with an expedient legal theory.
Without admitting it happened, they said a scheme by the president to withhold $391 million in military assistance from a foreign power to pressure an investigation of a political rival would not be impeachable.
“The president, as the head of the executive branch, has the authority to set policies and make determinations, regardless of what the staffers may recommend,” said Jay Sekulow, one of the president’s attorneys.
“They are there to provide information and recommendations, not to set policy,” Sekulow continued. “So the idea we’re going to start impeaching presidents by deciding that they had illicit motives if we can show a disagreement and some interagency consensus is fundamentally contrary to the Constitution and fundamentally anti-Democratic.”
Fellow members of the White House defense team championed this interpretation of the Constitution and the powers with which it imbues a president. For attorney Patrick Philbin, it was inconceivable that senators would ever be able to divine Trump’s motives when he spoke over the phone with Ukrainian President Volodomyr Zelensky on July 25, 2019, about both the aid and his request for an investigation of the Bidens.
“How do we get proof of what is inside the president’s head?” Philbin said, adding then that it would be unreasonable to consider impeaching a president based on a congressional interpretation of his motives.
“It’s fundamentally antidemocratic,” the White House counselor added.
Underlining their argument that the articles of impeachment are invalid, the defense echoed assertions from President Trump that his authority is essentially infallible because, per the Constitution, it is the president who sets policy for the executive branch and it is he who is chief decider in areas such as foreign policy, national security, defense and others.
While Philbin acknowledged a president’s powers remain contained within the limits of laws passed by Congress, in the end, he argued the question senators must answer is whether Trump’s impeachment was valid to start.
Returning to the annals of history, Philbin suggested that when the Founders crafted the impeachment clause of the Constitution, they rejected the word “maladministration” before eventually landing on “high crimes and misdemeanors” because they wanted to remove the threat of perverting the impeachment process.
“Many terms had been included in earlier drafts … Framers rejected it because it was too vague, it was too expansive. It would allow for arbitrary exercises of power,” Philbin said.
For House impeachment managers, what seems arbitrary is a Senate trial without witnesses.
The White House and its allies have maintained that the trial should not feature witnesses or evidence, even after a daily drip of leaked passages from Bolton’s book cast doubt on whether the Republican caucus will remain united on that front.
Senator Lindsey Graham, R-S.C., tweeted Tuesday he would back a plan floated by Oklahoma Senator James Lankford that calls for the distribution of Bolton’s manuscript to senators in a classified setting where they might make their own determination.
While some senators are still timid about calling witnesses to testify before the body, other former administration officials, including Trump’s onetime chief of staff John Kelly have voiced their support.
“If John Bolton says that in the book, I believe John Bolton,” Kelly said during a function at the Van Wezel Performing Arts Hall in California.
Another new development eviscerates the White House’s assertion that Zelensky never felt pressured.
Oleksandr Danylyuk, the former secretary of national security and defense council for Ukraine, told the Daily Beast in an exclusive interview published Tuesday that Trump’s push for the announcement of an investigation into former Vice President Joe Biden, Burisma Holdings and Biden’s son Hunter “rattled” officials in Kiev.
White House attorney Michael Purpura was emphatic on the first day of arguments — mentioning it seven times — that there was no pressure exerted on Ukraine by the Trump administration.
On the second day, Purpura gave the argument far shorter shrift, discussing the “pressure” just twice over roughly nine hours of presentation.
Republicans rushed off to a caucus immediately after Trump’s defense team concluded their arguments. Over an hour later, senators trickled out and confirmed that the party discussed witnesses and the protocol for the 16-hour question-and-answer session to begin Wednesday afternoon.
The trial could drag into a third week if just four Republicans vote with Democrats on Friday to call witnesses. But GOP leadership exited the caucus optimistic that impeachment will soon draw to a close. South Carolina Senator Lindsey Graham said Republicans are in a “good spot” to end the trial sooner rather than later. Asked if the trial will run past Friday ,Majority Whip John Thune said: “It shouldn’t. We’re kind of on schedule.”
The defense team’s formula is simple: Trump was impeached 41 days ago on unconstitutional grounds.
But the formula for House impeachment managers is simpler still: Trump withheld military aid from an ally in a pressure campaign designed to trounce his political rival and tilt the 2020 election in his favor. Trump’s dangling of a White House meeting for the newly elected Zelensky was merely just icing on the abuse of power cake.
But Republicans like Senator Joni Ernst of Iowa see things quite differently.
Late Monday Ernst suggested that the mention of Biden’s name repeatedly throughout the defense’s arguments could dampen polling numbers for Democratic candidates at the Iowa caucus.
Ernst expressed hope that information about the Ukrainian-related allegations of corruptions against Biden and his son Hunter would influence some of those votes as well.
“And it really, I think, opened the eyes of not just the folks in the Senate, but maybe for those folks at home who are watching this afternoon,” Ernst said. “I don’t think that was their point, but I think it just really calls into question the entire corruption issue in Ukraine.”
A spokesperson for Biden said Tuesday that the former vice president wasn’t remotely miffed by his name being dropped repeatedly at trial.
“Senator Ernst said the quiet part out loud: Republicans are terrified that Joe Biden will be the Democratic nominee, defeat Donald Trump, and help progressives gain seats in the House and take the Senate,” spokesman Andrew Bates said Tuesday. “Donald Trump himself was so afraid of running against Joe Biden that he became the only president in American history who tried to force a foreign country to lie on behalf of his struggling re-election campaign.”