WASHINGTON (CN) — Even if President Donald Trump withheld aid to Ukraine for the purpose of getting a leg up in the election, that would not be impeachable because every candidate believes remaining in office is in the public interest, Harvard Law Professor Alan Dershowitz told stunned senators Wednesday.
“Every public official that I know believes that his election is in the public interest, and mostly you’re right,” Dershowitz remarked.
“Your election is in the public interest, and if a president does something that he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment,” he continued.
Before Wednesday’s question-and-answer session, the former defense attorney for O.J. Simpson and Jeffrey Epstein offered sweeping theories that would radically expand executive power.
Dershowitz previously posited Trump could not be removed for explicit quid pro quos, even if proven and admitted, because doing so would require investigating motive and Congress cannot be expected to determine what is in the president’s mind and heart.
Copies of the U.S. Constitution dotted tables throughout the chamber with small cream-colored cards bearing the seal of the U.S. Senate perched on most lawmakers’ desks, though Senator Ron Johnson, R-Wis., did not appear to have the cards before him.
The first question presented by Roberts — spirited to him by a fast-walking page who carrying a card from a senator directly to the chief justice — was a combined query from expected swing vote Senators Susan Collins, Lisa Murkowski and Mitt Romney.
Curious about how motive and intent can be determined, the senators asked: If it is possible Trump was motivated by his own interests and was motivated in the public interests during the July 25 call with Ukraine’s President Volodymyr Zelensky, how can senators weigh his motive as it relates to the first article of impeachment: abuse of power.
White House attorney Patrick Philbin told senators the very notion of “mixed motives” would invalidate the article on the spot.
“It would be absurd to have the Senate trying to consider it if it was 48% legitimate interests or 52% personal interests,” Philbin argued. “You can’t divide it that way.”
Under Philbin’s theory, if there was even a scintilla of public interest motivating him when he asked for a favor, it would destroy House impeachment managers’ case altogether.
In that vein, Vermont independent Senator Bernie Sanders, who is vying for the White House in 2020, asked impeachment managers how senators are expected to implicitly trust Trump’s assertion of “no quid pro quo” when Trump’s word is often not his bond.
Trump, who settled a $21 million fraud lawsuit with victims scammed by the now defunct Trump University in April 2018, has essentially created a long running culture of mistrust around him, lead House impeachment manager Adam Schiff argued.
“He truly believes he’s above the law, it doesn’t matter who is listening, if it’s good for him, a version of the Dershowitz argument, it’s good for the state because he is the state,” Schiff declared.
With Washington in knots over whether former national security adviser John Bolton will be called to testify, Senate Minority Leader Chuck Schumer asked House impeachment managers whether a verdict could even be rendered without first seeing the documentary evidence inside Bolton’s book.
“The short answer is no,” Schiff said.
The question prompted bald laughter from Republican Senators Tim Scott of South Carolina and Ben Sasse of Nebraska. Two other Republicans, Senators Pat Toomey of Pennsylvania and Kevin Cramer of North Dakota, were also spotted shaking their heads.
Schiff said Bolton’s role goes to the heart of Trump’s “egregious misconduct. In an argument undercutting Philbin’s assertions on mixed motives, Schiff said even if it was a causal factor involved to freeze aid, that alone would be enough to convict.
At the inquiry’s start, House Democrats likened their probe to a criminal grand jury investigation, requiring secrecy at first before issuing their indictment in the form of the articles of impeachment.
Republicans have consistently rejected that analogy, demanding all hearings in the House be open to the public and Trump’s defense attorneys. Trump loyalists also have insisted that a Senate trial is no place for additional witnesses, despite the Constitution’s clear guidance: “The Senate shall have the sole power to try all impeachments.”
On Wednesday, however, Team Trump played a legal game of musical chairs, accepting the premise that a Senate trial has a higher standard than a House grand jury.
“The Constitution speaks of a conviction upon being convicted in the Senate,” Philbin said. “It speaks of all crimes being tried by jury, except in cases of impeachment, again suggesting notions of the criminal law and as we pointed out in our trial memorandum, all these textual references make it clear that the standards of criminal law should apply in the trial.”
House Manager Val Demings tackled a question from Senator Patrick Leahy, a Vermont Democrat, who asked if there was any harm in withholding Ukraine’s military aid. Citing a figure from the United Nations, Demings noted that 15,000 Ukrainian died in conflicts with neighboring Russia.
The aid restriction undercut Ukraine’s ability to negotiate with Russia now and in the future, she said.
“Contrary to what the White House counsel has said or claimed that there was no harm, no foul, that the aid eventually got there,” Demings said. “We promised Ukraine in 2014 that if they gave up their nuclear arsenal, that we would be there for them and that we would defend them and that we would fight along beside them.”
Senator Tom Carper, D-Del., posed a question highlighting the fact that deposing witnesses took merely a day during the impeachment trial of former President Bill Clinton and that Chief Justice Roberts would have the authority to review new claims without delay.
Opponents of calling additional witnesses have suggested that hearing new testimony would lengthen the trial.
But House impeachment manager Hakeem Jeffries, D-N.Y., dismissed the notion, saying that Trump’s impeachment trial is the only one in American history lacking witnesses.
In fact, 37 of the 40 witnesses who testified during former President Andrew Johnson’s impeachment trial were called after it began, Jeffries said.
“A trial involves witnesses. A trial involves documents. A trial involves evidence. That is not a new phenomenon for this distinguished body and the Senate and its history had 15 different impeachment trials,” Jeffries said. “In every single trial there were witnesses.”
Chief Justice Roberts, rarely seen outside of the Supreme Court, has settled into his role as presiding officer and was seen taking notes as Wednesday unfolded.
Unlike other days, where Roberts’ desk was littered with small slips of paper, the question-and-answer session prompted the chief justice to bust out a full sized legal notepad for the first time.
House manager Zoe Lofgren, D-Calif., fielded a joint question from Senators Dianne Feinstein of California, Mazie Hirono of Hawaii, Tom Udall of New Mexico and others regarding the precedent for blanket immunity sought by the White House.
Trump’s obstruction was “categorical and indiscriminate,” and its purpose was crystal clear, she said.
“It was to prevent Congress from doing its duty to hold the president accountable,” Lofgren said. “He didn’t assert executive privilege… he just didn’t like what we were doing.”
The president may be commander-in-chief, Lofgren argued, but that does not give him authority to decide how the trial plays out.
“The House is the sole arbiter over rules of impeachment,” she said.
A question from Republican Senators Ted Cruz of Texas, Jerry Moran of Kansas and Josh Hawley of Missouri pressed House managers to address if there was any relation between the person who filed the whistleblower complaint – the genesis of Trump’s impeachment – and Joe Biden.
Schiff displayed multiple remarks from Republican senators who previously defended whistleblower protections, like Romney of Utah and Chuck Grassley of Iowa.
Schiff was often attacked by Republicans during the House impeachment inquiry as having insider knowledge about the whistleblower’s name.
He reiterated Wednesday he and his staff had no information on the whistleblower’s identity.
In short, he said, the conspiracy theory was baseless.
“The whistleblower did exactly what they should,” Schiff said. “Except to the president. That’s unforgivable because the whistleblower exposed the wrongdoing of the president. And in the president’s view, that makes him or her a traitor or a spy.”
As the night wore on, defense attorney Dershowitz defended his decision in opening arguments this week to flip-flop on his former position and now say that a technical crime is required to impeach.
During Clinton’s impeachment, Dershowitz argued heartily to the contrary.
Saying the Framers didn’t want to adopt the term “maladministration” because it was too vague, Dershowitz asserted maladministration was a synonym for abuse of power.
“Saying maladministration is a synonym for abuse of power? Almost no scholar accepts this,” Chuck Schumer said at a press conference during a recess.
The point was driven home with a follow-up question fielded by impeachment manager Jerry Nadler: Has definition of high crimes and misdemeanors changed over the past 22 years?
“Every impeachment in American history has been for abuse of power in one form or another,” Nadler said before adding that crimes and the impeachment are two different things.
Impeachments are not punishments for crimes, he argued, and impeachments are used against presidents who threaten liberty or the separation of powers.
“That is why punishment upon conviction of impeachment only goes to removal of office,” Nadler emphasized. “You can’t put him in jail. You can’t fine him. An impeachable offense need not be a crime. It’s understood that way through American history.”