Wednesday was question-and-answer day in the Senate impeachment trial of President Donald Trump, and it included a thought exercise in which Barack Obama asks Russia to investigate election rival Mitt Romney.
Senators acting as jurors, and in some way judges, submitted questions in writing to Chief Justice John Roberts. He then read them out loud for answers from the president’s lawyers or from House Democrats’ impeachment managers led by Rep. Adam Schiff, D-Calif.
Here are highlights from the eighth day of the impeachment trial, which is to be followed by another day of questioning Thursday.
1. Schiff’s Parody of a Romney Probe
In previous days, the president’s lawyers contrasted the charges against Trump with what they say was a much more questionable open-microphone incident in 2012, when President Barack Obama told Russian President Dmitry Medvedev that he would have “more flexibility” on Eastern Europe missile defense after the upcoming U.S. election.
Schiff picked up on the point, offering an imaginary scenario in which Obama asks for a Russian investigation of his 2012 election opponent, former Massachusetts Gov. Mitt Romney, who now is a Republican member of the Senate.
“Let’s use that analogy and make it more comparable to today and see how you feel about this scenario,” Schiff said, adding:
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 are fighting and killing your people.’
‘I want you to do me a favor, though. I want you to do an investigation of Mitt Romney. And I want you to announce you found dirt on Mitt Romney. 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 OK if Barack Obama asked Medvedev to investigate his opponent and withhold money from an ally that needed to defend itself to get an investigation of Mitt Romney? That’s the parallel here.
House Democrats voted Dec. 18 to impeach Trump for abuse of power and obstruction of Congress. The two articles were based on Trump’s July 25 phone call to Ukrainian President Volodymyr Zelenskyy, in which the two leaders briefly talked about Trump’s interest in Ukraine’s investigating former Vice President Joe Biden and the role of his son, Hunter Biden, on the board of Ukrainian energy firm Burisma.
Unknown to Zelenskyy at the time, Trump had put a hold on $391 million in congressionally approved military aid to Ukraine, which he would lift in September.
Joe Biden has boasted that in 2016, while serving as vice president overseeing the Obama administration’s Ukraine policy, he threatened to withhold $1 billion in U.S. aid to Ukraine unless the government fired prosecutor Viktor Shokin. At the time, Shokin was investigating Burisma, which reportedly paid Hunter Biden $83,000 per month.
Later in the hearing, Sen. Ted Cruz, R-Texas, submitted a related question to the chief justice.
“In Mr. Schiff’s hypothetical, if President Obama had evidence that Mitt Romney’s son was being 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?” Roberts read.
Schiff, responding to Cruz’s question, asserted that whether an investigation of Romney were justified or unjustified, it would still be impeachable for Obama to ask for it.
“The reality is [that] for a president to withhold aid from a military ally, or in the hypothetical to withhold it to benefit an adversary to target their political opponent, is wrong and corrupt,” Schiff said. “End of story. If you allow a president to rationalize that conduct, rationalize jeopardizing the nation’s security to benefit himself because he believes his opponent should be investigated by a foreign power, that is impeachable.”
The California Democrat added:
Now, if you have a legitimate reason to think any U.S. person has committed an offense, there are legitimate ways to have an investigation conducted. There are legitimate ways to have the Justice Department conduct an investigation. … But under no circumstances do you go outside of your own legitimate law enforcement process to ask a foreign power to investigate your rival.
2. A Question of Burden Sharing
Schiff asserted that Trump wasn’t concerned with burden sharing by other nations to help Ukraine, but only with benefiting his own reelection.
Consulting the official White House transcript of the call between Trump and Zelenskyy, Schiff read Trump’s words: “I need you to do us a favor, though.”
“Does that sound like burden sharing? Of course not,” Schiff said on the Senate floor.
However, deputy White House counsel Patrick Philbin pointed to a June 24 email with the subject line “POTUS follow-up” and its contents on the Trump administration’s concerns that the United States provides Ukraine with 10% of its military budget and that other European countries are not doing enough.
Philbin also read from the transcript of the call between Trump and Zelenskyy.
Quoting Trump’s words in the transcript, he read:
We spend a lot of effort and a lot of time, much more than the European countries are doing and they should be helping you more than we are. Germany does almost nothing for you. All they do is talk and I think it’s something that you should really ask them about.
Philbin added: “He’s raising burden sharing, and President Zelenskyy agreed with him.”
3. Are All Quid Pro Quos Equal?
Another Trump lawyer, Harvard law professor Alan Dershowitz, asserted that a quid pro quo in foriegn policy is not unusual.
“Yesterday, I had the privilege of attending the rolling out of a peace plan by the president of the United States regarding the Israel-Palestine conflict,” Dershowitz said. “And I offered you a hypothetical the other day: What if a Democratic 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 [what if] 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.’ There is no one who would regard that as unlawful.”
However, in talking about a hypothetical Romney investigation sought by Obama, Schiff argued that not all quid pro quos are the same:
We condition aid all the time for legitimate reasons, yes. For legitimate reasons, you might say to a governor of a state, ‘You should chip in more for your own disaster relief.’ But if the president’s real motive in depriving a state of disaster relief is because that governor won’t get his attorney general to investigate the president’s political rival, are we ready to say the president can sacrifice the interest of the people of that state—or in the case of Medvedev, the people of our country—because all quid pro quos are fine, it’s carte blanche?
Is that really what we are prepared to say, with respect to this president’s misconduct or the next? Because, if we are, then the next president of the United States can ask for an investigation of you.
4. Elected President, Unelected Bureaucrats
Philbin, one of Trump’s lawyers, pointed to criticism from Schiff and the House’s other six impeachment managers, or prosecutors, that Trump did not follow the suggestions of his advisers in his phone conversation with Zelenskyy.
“They say that the president defied and confounded every agency in the executive branch. That is a constitutionally incoherent statement,” Philbin said, adding:
The president cannot defy the agencies within the executive branch that are subordinate to him. It is only they who can defy the president’s determination of policy. What this all boils down to is that it shows this case is built on a policy difference, and a policy difference where the president is the one who gets to determine the policy, because he’s been elected by the people to do that.
Rep. Zoe Lofgren, D-Calif., one of the House impeachment managers, argued that it wasn’t the point.
“The president surely does not need the permission of his staff about foreign policy. That information is offered to you as evidence of what he thought he was doing,” Lofgren said. “He did not appear to be pursuing a policy agenda. He appeared, with all of the evidence, to be pursuing a corruption, a corruption of our elections that’s upcoming, a high crime and misdemeanor that requires conviction and removal.”
5. Schiff as a Witness
Trump personal lawyer Jay Sekulow suggested that Schiff could be called as a witness, similar to how then-independent counsel Ken Starr was a House witness in 1998 to explain his investigation of President Bill Clinton. Starr is now one of Trump’s lawyers.
Sekulow was responding to Schiff’s suggestion that Roberts, presiding over the trial, should decide whether Trump may cite executive privilege to prevent witness testimony.
“In the Clinton [impeachment] proceeding, the witnesses that actually gave deposition testimony were witnesses that had either been interviewed by deposition in the House proceeding or grand jury proceedings,” Sekulow said.
“There was another statement from Chairman Schiff, Manager Schiff, that the chief justice make a determination on executive privilege,” he said, adding:
If we get to the point of witnesses, for instance, if one of the witnesses to be called by the president was Adam Schiff, in the role basically of Ken Starr. Ken Starr … made the presentation before the House of Representatives, had about 12 hours of questioning. If Rep. Schiff is called as a witness, would in fact issues of [constitutional] Speech and Debate Clause privilege be decided by the presiding officer? Would it go to court? Maybe they would waive it? Those would be the kind of issues that would be very, very significant.
6. ‘You’re Not a King’
Schiff said that Trump, by not providing documents to House investigators, is behaving as if he is the state:
I think if you look at the pattern of this president’s conduct and his words, what you see is a president who identifies the state as being himself. When the president talks about people that report his wrongdoing, for example, when he describes a whistleblower as a traitor or a spy, the only way you can conceive of someone who reports wrongdoing as committing a crime against the country is if you believe you are synonymous with the country, that any report of wrongdoing against the president, the person of the president is a treasonous act.
You have the argument that subpoenas aren’t valid before the resolution. Then, with respect to subpoenas issued after the House resolution, like to [acting White House chief of staff Mick] Mulvaney, well, those are no good either. You’ve heard the argument ‘We have absolute immunity.’ And the court that addresses this says, ‘No, you don’t. You’re not a king.’
Philbin responded that Schiff and the other House managers were having it both ways.
“If they think they can sue [to secure documents and testimony], they have to take that step. Because the Constitution, the courts have made clear, requires incrementalism in disputes between the executive and legislative branch,” Philbin said. “So, if they think the courts can resolve that dispute, that’s the next step, they should do that and have that litigated. Then things can proceed on to a higher level of confrontation. But, to jump straight to impeachment, to the ultimate constitutional confrontation, doesn’t make sense.”
They’ve decided [that] in this impeachment, they don’t want to do litigation. It’s because they had a timetable. One of the House managers admitted on the floor they had to get the president impeached before the election, they had no time for the courts, for anyone telling them what the rules were, and they had to get it done by Christmas. And that’s what they did.
Then they waited around for a month before bringing it here. That shows you what’s really behind the claims of, ‘Oh, it’s urgent, but then it’s not urgent.’ It’s urgent when it’s our timetable to get it done by Christmas, but then it’s not when we can wait for a month because we want to tell the Senate how to run things.
It’s all a political charade. That’s part of the reason, a major reason, the Senate should reject these articles of impeachment.
Other coverage of the impeachment trial for The Daily Signal by White House correspondent Fred Lucas includes: