The moments that mattered

Dershowitz’s power play and a Trump team stumble: The moments that mattered in the Senate Q&A

A lengthy question-and-answer session yielded a few exchanges that might make a difference in the trial.

By KYLE CHENEY, ANDREW DESIDERIO and DARREN SAMUELSOHN

Senators finally got their chance to speak in President Donald Trump’s impeachment trial Wednesday, delivering an open-ended string of questions to the lawyers representing the House and the president.

And amid nearly eight hours of largely political theater designed to bolster each side’s argument, a few crucial moments stood out.

For one, the most critical question remains whether to call witnesses — like John Bolton — over allegations Trump abused his power to solicit Ukraine's interference in the 2020 election. Later, an attorney for Trump laid out a conception of executive power so startlingly broad, it outstripped even the president's fiercest defenders. And two key Republican senators hinted that they are skeptical about a central tenet of Trump’s defense against the impeachment articles.

The omnipresent John Bolton

Democrats scarcely wasted an opportunity the entire day to name-drop Bolton, Trump's former national security adviser who is about to publish a book in which he accuses Trump of linking a freeze on military aid to Ukraine with his demand that the country investigate former Vice President Joe Biden, a 2020 rival.

Bolton has offered himself up as a willing witness, but Senate Republicans appear increasingly uninterested in calling him, a decision that would likely conclude the trial as soon as Friday. So Democrats spent the entire day seeding Bolton's name into their answer to questions, pointing out all the aspects of their case in which he could illuminate or add to the evidence they collected — and provide firsthand insight where other witnesses offered suppositions or guesswork.

"When you have a witness as plainly relevant as John Bolton, who goes to the heart of the most serious and egregious of the president's misconduct, who has volunteered to come and testify, to turn him away and to look the other way, I think, is deeply at odds with being an impartial juror," said Rep. Adam Schiff (D-Calif.), the lead House impeachment prosecutor.

During a question on whether the House collected evidence of Trump tying Ukraine's aid to investigations, Schiff cited Bolton again.

"If you have any lingering questions about direct evidence, any thoughts about anything we just talked about, anything I just relayed or we talked about the last week, there is a way to shed additional light on it. You can subpoena Ambassador Bolton and ask him that question directly," he said.

And so it went for hours, while the president's team countered that a move to call Bolton would delay the trial for weeks or months because Trump would demand his own voluminous set of witnesses. Democrats said they viewed this as an implicit threat to tie the Senate up in knots if they dared extend the trial for new testimony, but Republicans have become increasingly wary of a protracted process.

In another illuminating moment, senators pressed the White House legal team whether they had any window into the allegations in Bolton's book, which has been under review by the National Security Council since late December. Trump attorney Patrick Philbin answered by reading an NSC statement indicating that no one outside the NSC had reviewed the manuscript. But Schiff quickly countered that position, noting that it didn't indicate whether anyone in the counsel's office had been briefed or warned about the severity of Bolton's allegations.

Dershowitz's executive power play

Alan Dershowitz, the former Harvard law professor and prominent criminal defense attorney, took his expansive view of presidential power to an entirely new level.

Dershowitz, a member of Trump’s legal team, said a president could do virtually anything — including engaging in a quid pro quo for a purely political benefit — as long as it's in service of winning reelection.

“Every public official that I know believes that his election is in the public interest,” Dershowitz said on the Senate floor, responding to a question about how presidents conduct foreign policy. “And if a president did 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.”

Dershowitz’s argument cuts at the heart of the House managers’ case against the president: that Trump sought to leverage official U.S. government acts in order to boost his re-election bid, and that he improperly solicited foreign interference in an American election.

Dershowitz: Not quid pro quo if president 'does something that he believes will help him get elected in the public interest'
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But his contention is well outside the mainstream of legal scholars — and one that the House impeachment managers said would put the president above the law and the Constitution.

Schiff said Dershowitz’s view gives a president “carte blanche” to use his or her office to further his or her own political interests, rather than the interests of the nation.

Dershowitz’s remarks underscore the extent to which Trump has surrounded himself with lawyers who believe in the so-called unitary executive theory — the idea that the president’s power is all but absolute and rarely subject to congressional oversight or investigation. But Dershowitz’s justification of all presidential quid pro quos goes even further than some of the most vocal proponents of expansive presidential power and quickly raised eyebrows on and off Capitol Hill.

Trump team struggles on Biden question

Trump’s lawyers dodged a direct question from two of the most important GOP senators in the chamber — Lisa Murkowski of Alaska and Susan Collins of Maine — over whether the president had ever mentioned Joe Biden or his son Hunter to the Ukrainians or his own top staff before the former vice president entered the 2020 race last April. And later, they refused to answer a question from Sen. Mitt Romney (R-Utah), another swing GOP vote, on the exact date that Trump ordered the hold on aid to Ukraine.

With those responses, the White House showed that it would not give in to senators seeking information that is not already known — either in the House’s record or in the public domain. The White House’s posture toward those senators in particular exposes a vulnerability for Senate Republican leaders as they seek to ensure that no more than three GOP senators vote in favor of calling additional witnesses who could possibly shine light on their questions.

In response to the question from Murkowski and Collins, deputy White House counsel Patrick Philbin started out by pleading for some wiggle room on his answer because he was “limited to what is in the record” that the House created during its impeachment probe.

From there, he pivoted to more friendly ground by reciting arguments about the president’s interest in Burisma, a Ukrainian national gas company connected to Hunter Biden, being tied to a desire to ferret out corruption in Ukraine.

Collins and Murkowski scribbled furiously on their notepads as Philbin went on to cite a number of news articles that ran in the wake of Rudy Giuliani’s nonstop media campaign — which had launched around the end of March — which only helped draw attention to Biden’s apparent conflicts of interest. “That is what makes it suddenly current, relevant, probably to be in someone's mind,” Philbin said.

What is perhaps most notable in Philbin’s answer is his insistence that he is confined to a record that the Trump lawyers themselves keep adding to. One very recent example: White House associate counsel Michael Purpura about 15 minutes earlier in the session referenced a Daily Beast interview with a former Ukrainian official that had only been published Tuesday.

Democrats pounced on the contradictions. On the Senate floor, Schiff diverted at the end of the next question to jab back at the initial Collins-Murkowski question.

“Are we to believe that of all of the companies in all of the land, of all of the gin joints in all of the land in Ukraine, that it was just Hunter Biden walking into this one, and that is the reason why he was interested in Burisma was just a coincidence that involved the son of his opponent?” he asked.

On Twitter, Sen. Sheldon Whitehouse (D-R.I.) also criticized Philbin’s response and later in the evening asked the White House lawyer to explain the apparent discrepancy and try again answering the GOP senators' question.

Philbin replied that he wasn't trying to avoid giving a straight answer and blamed the trial rules for any shortcomings.

"I can't go telling now about things that the president might have said to cabinet members. I'm not in a position to say that," Philbin said. "I can tell what you is in the public and I can tell you what's in the record. And I answered the question fully to the best of my ability based on what is in the public domain and what is in the record."