It was a freewheeling sort of day on the floor of the U.S. Senate as a question-and-answer session between politicians and President Donald Trump‘s defense team/House Managers led to a series of interesting and relatively surprising exchanges. Here are a few of the most notable.
I. Alan Dershowitz
Harvard Law Professor Alan Dershowitz torched a few boundaries and norms during his second appearance in support of the president. He started off by reciting a previous hypothetical.
“What if a Democrat president were to be elected, and Congress were to authorize much money to either Israel or the Palestinians and the Democratic president were to say to Israel, ‘No, I’m going to withhold this money unless you stop all settlement growth’; or to the Palestinians, ‘I will withhold the money Congress authorized to you unless you stop paying terrorists’ and the president said, ‘Quid pro quo–if you don’t do it, you don’t get the money–if you do it, you get the money,'” he began with a Faulknerian wind-up. “There’s no one in this chamber that would regard [the Israel-Palestine example] as in any way unlawful. The only thing that would make the quid pro quo unlawful is if the quo were, in some way, illegal.”
Dershowitz then went in for the kill:
Now, we talked about motive. There are three possible motives that a political figure can have: One, a motive in the public interest, and the Israel argument would be in the public interest. The second is in his own political interest. And the third, which hasn’t been mentioned, would be in his own financial interest. His own, pure financial interest–just putting money in the bank. I want to focus on the second one for just one moment. Every public official that I know believes that his election is in the public interest–and mostly you’re right, your election is in the public interest. 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.”
Miss the point? Dershowitz was essentially arguing that any action by a president–if done with an eye toward reelection–is definitionally not an impeachable act, because every politician believes their reelection is in the public interest. Reaction to Dershowitz’s argument was all-but unanimously negative.
Here’s a very small sampling of the outrage:
https://twitter.com/Susan_Hennessey/status/1222605373414223872?s=20
https://twitter.com/qjurecic/status/1222601239604670465?s=20
https://twitter.com/waltshaub/status/1222602631312441344?s=20
https://twitter.com/Popehat/status/1222613708951523329?s=20
II. So, what about Barack Obama? Would he have been impeached for this?
House impeachment manager Rep. Adam Schiff (D-Calif.) had a hypothetical scenario of his own to share with the assembled jurors-senators on Wednesday. Schiff first referenced the so-called “whataboutism” of Republicans previously mentioning the infamous 2012 hot mic moment between former President Barack Obama and then-Russian President Dmitry Medvedev.
“Let’s use that analogy and make it more comparable to today and see how you feel about this scenario,” Schiff said. “President Obama, on an open mic, says to Medvedev. ‘Hey Medvedev, I know you don’t want me to send this military money to Ukraine because they’re fighting and killing your people. I want you to do me a favor though. I want you to do an investigation into Mitt Romney. And I want you to announce you found dirt on Mitt Romney. And if you’re willing to do that–quid pro quo–I won’t give Ukraine the money they need to fight you on the front line,’ Do any of us have any question that Barack Obama would be impeached for that kind of misconduct? Are we really ready to say that that would be okay?”
III. A retort
Sen. Ted Cruz (R-Texas) and Sen. Lindsey Graham (R-S.C.) huddled together to craft a response to Schiff’s Obama hypothetical. The duo submitted a question–read aloud by Chief Justice John Roberts–invoking the specter of the events at the heart of the current impeachment scandal. Namely: Joe Biden‘s son Hunter Biden and his unearned position on the board of serially corrupt Ukrainian petrochemical firm Burisma Holdings Limited.
“In Mr. Schiff’s hypothetical, if President Obama had evidence that Mitt Romney’s son was paid $1 million per year by a corrupt Russian company and Mitt Romney had acted to benefit that company, would Obama have authority to ask that that potential corruption be investigated?” Cruz and Graham inquired.
“The hypothetical is a bit off because it presumes that in that hypothetical that President Obama was acting corruptly or there was evidence he was acting corruptly with respect to his son,” Schiff answered. “Would it have been impeachable if Barack Obama had tried to get Medvedev to do an investigation of Mitt Romney, whether it was justified or unjustified? The reality is for a president to withhold military aid from an ally or in the hypothetical to withhold it to benefit an adversary, to target their political opponent, is wrong and corrupt, period. End of story.”
He said the president could have sought investigations through a “legitimate law enforcement process,” but that’s not what happened here.
“Under no circumstances do you go outside of your own legitimate law enforcement process to ask a foreign power to investigate your rival, whether you think there’s cause or you don’t think there’s cause, and you certainly don’t invite that foreign power to try to influence an election to your benefit,” he continued.
MSNBC host Chris Hayes wondered why Sens. Cruz and Graham didn’t raise questions about “the Burisma issue” in the past.
IV. Subpoenas (like dust) in the wind
This part of the could be summed up in a question: Is the House’s obstruction charge against Trump without precedent given Democrats did not fight this tooth and nail in the courts (i.e. failed to even attempt to enforce their own subpoenas)? That’s essentially the issue here and one that even defenders of impeachment process have largely admitted Democrats ought to have extended their efforts and time on—at least a little. But now the partisan fog is thick and heavy, so maybe even the idea of an honest question is a bit naive at this point.
Sen. Chuck Grassley (R-Iowa) who also submitted a question via Roberts, gave it a go, asking: “Does the House’s failure to enforce its subpoenas render its ‘obstruction of Congress’ theory unprecedented?”
To which White House deputy counsel to the president Patrick Philbin replied, at length:
The answer is, Yes. As far as I’m aware, there’s never been a prior instance in which there’s been an attempt–even in the House, as in the Nixon proceeding, never mind in the Clinton proceeding, which actually left the House and came to the Senate–to suggest there can be obstruction of Congress when there hasn’t been anything beyond simply issuing a subpoena, getting resistance, and then throwing up your hands and giving up and saying: “Oh, well, that’s obstruction.”
Trump supporters had a field day with that call-and-response:
Liberal commentators writhed a bit and went in search of legal knot-making to defend the Democratic Party’s decidedly half-hearted subpoena enforcement efforts:
Philbin later pointed out that House Democrats didn’t subpoena recently-crucial witness and former national security advisor John Bolton, despite the recent spate of press coverage attesting to Bolton’s absolute and utmost importance. Again, the rushed nature of Speaker Nancy Pelosi’s narrow inquiry may come back to bite with incisors.
V. Whither Executive Privilege?
Somewhat related to the lingering fact of Democrats’ lackluster subpoena enforcement efforts is the question of executive privilege. Or, rather, and more accurately, the lack thereof.
“Why did the House of Representatives not challenge President Trump’s claims of executive privilege and/or immunity during the House impeachment proceedings?” asked a dishonest or confused trio of Republican senators via the chief justice.
Impeachment manager Rep. Hakeem Jeffries (D-New York) beat that question back by noting one fundamental inaccuracy with the premise: executive privilege wasn’t invoked.
“We didn’t challenge any claims related to executive privilege, because, as the president’s own counsel admitted during this trial, the president never raised the question of executive privilege,” Jeffries noted. “What the president did raise was this notion of blanket defiance. This notion that the executive branch, directed by the president, could completely defy any and all subpoenas issued by the House of Representatives.”
Former GOP Rep. Justin Amash (I-Michigan) caught the upshot of Wednesday’s various discussions about subpoenas and privilege and courts and whatnot:
VI. Bonus
Enter Sen. Lisa Murkowski (R-Alaska), an occasional voice of moderation and restraint in a caucus not much known for that. You may remember her for being the lone GOP vote against then-Supreme Court nominee Brett Kavanaugh. (In spirit, at least.)
Joining her in posing the question was Sen. Susan Collins (R-Maine).
“Witnesses testified [that] President Trump consistently expressed the view that Ukraine was a corrupt country,” Murkowski and Collins asked via Roberts, “Before vice president Biden formally entered the 2020 presidential race…did President Trump ever mention Joe or Hunter Biden in connection with corruption?”
Philbin was left with no choice in his answer.
“I’m limited to what’s in the [House] record,” he said.
[image via Senate Television/Getty Images]
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