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8 impeachment arguments senators will be weighing as Trump trial enters question phase

The impeachment trial of U.S. President Donald Trump is moving into its next phase Wednesday, with senators preparing to question the prosecution and defence.

They’re also contemplating whether they want to call additional witnesses before they make a final determination on whether or not to remove Trump from office.

With the help of two experts in constitutional law, we take a look at some of the arguments they will be weighing as each side uses its allotted eight hours of questioning.

One thing to keep in mind, warns Mark Tushnet, law professor at Harvard Law School, is that while the impeachment trial has many of the trappings of a courtroom trial, it’s fundamentally a political process. 

“It’s a judgment that mixes questions about political morality and law,” he said.

Was there a quid pro quo?

The mantra of the president and his legal team throughout the Senate trial has been: “Read the transcript.”

They’ve argued that the rough readout of Trump’s July 25, 2019, call with Ukrainian President Volodymyr Zelensky shows no direct conditioning of U.S. aid on investigations into Joe and Hunter Biden and a debunked theory of Ukrainian interference in the 2016 election.

Senators will have to decide whether they believe that Trump wanted Ukraine to investigate Joe Biden and his son Hunter out of genuine concern over possible corruption or out of pure self-interest. (Matt Rourke/The Associated Press)

Democrats point to witnesses, including former White House aides and career diplomats, who testified at the House impeachment hearings that they were aware of a pressure campaign, aided by the president’s personal lawyer, Rudy Giuliani, and other Trump surrogates, to get Ukraine to announce the investigations.

None of them, the defence team countered, had direct knowledge of a link between the aid and investigations and the suggestion was purely speculative.

The John Bolton revelations late Sunday seemed to blow a gaping hole in that defence. In a draft manuscript of the former national security adviser’s forthcoming book leaked to the New York Times, Bolton said the president himself told him last August that he wouldn’t release the aid unless investigations were done.

The leak of a draft manuscript from a forthcoming book by national security adviser John Bolton upended the Senate trial this week, making it harder for Republican senators to vote against hearing what he has to say. (The Associated Press)

The defence team had a counter for that, too, however.

“Quid pro quo, alone, is not a basis for abuse of power. It’s part of the way foreign policy has been operated by presidents since the beginning of time,” Trump lawyer Alan Dershowitz said in his arguments Monday.

Tushnet says that depends on the nature of the quid pro quo.

“It becomes problematic when the quid pro quo is either concealed or, when evidence emerges, it’s denied,” he said. 

WATCH | Alan Dershowitz, a member of Trump’s defence team, argues that a quid pro quo is not impeachable:

Trump attorney Alan Dershowitz argues that if a president issues a quid pro quo to a foreign country, it still does not constitute an abuse of power at the Senate impeachment trial. 2:15

Why did Trump want Ukraine to investigate the Bidens?

This question speaks to whether the president was acting in his own personal interest or the national interest.

“It is our position, legally, the president at all times acted with perfect legal authority, inquired of matters in our national interest,” Trump lawyer Jay Sekulow said Tuesday.

The House managers argue that Trump only became interested in Hunter Biden’s appointment to the board of Burisma, a Ukrainian energy company, after his father, former vice-president Joe Biden, entered the electoral race in April 2019. 

Hunter Biden, centre, joined the board of Burisma in 2014 while his father was vice-president and overseeing U.S. policy in Ukraine. (Jonathan Ernst/Reuters)

They spent part of their presentation laying out a detailed chronology to separate Biden Jr. from the corruption allegations that had dogged Burisma and suggested there was nothing suspect about his involvement with the company.

The defence countered that with an audiovisual presentation Monday highlighting concerns of nepotism and conflict of interest raised by everyone from business partners to the media to people within the Obama administration.

WATCH | Trump attorney Pam Bondi runs through some of questions raised about Hunter Biden’s board appointment at Burisma:

Trump impeachment lawyer Pam Bondi spent part of her presentation pointing out how several news outlets also tried to raise questions about Hunter Biden and his involvement in Ukraine gas company Burisma. 2:22

Trump’s lawyers say it was completely legitimate to ask Ukraine to look into Biden and was part of the president’s effort to tackle corruption, not a way to disadvantage his political rival in the November election.

“Do we have like a Biden-free zone?” Sekulow asked cheekily before the Senate Tuesday.

“You mention someone or you’re concerned about a company and it’s now off limits? You can impeach a president of the United States for asking a question?”

WATCH | Impeachment is ‘not a game of leaks,’ says Trump lawyer Jay Sekulow:

Trump lawyer Jay Sekulow says the job of deciding whether to remove a president from office was put in the Senate in order that it be examined above the fray of politics. 1:38

Republican Sen. Joni Ernst undermined that argument somewhat when she taunted Biden in a scrum with reporters, saying Iowa caucus voters could be swayed by what they had heard in the Senate Monday.

Was Ukraine harmed?

Trumps lawyers have used the “No harm no foul” argument in defending Trump’s temporary suspension of close to $400 million US in military aid, saying that since the aid was eventually released and Ukraine didn’t raise concerns about the freeze until it became public in August, no harm was done.

They also used Zelensky’s statements denying that he felt pressured to support their claim that it was no big deal and the fact that no investigations were ever announced to support their case.

“There can’t be a threat without the person knowing they’re being threatened,” White House counsel Michael Purpura said on the first day of defence arguments.

Adam Schiff and the other House managers prosecuting the case discount that argument, saying it would be absurd to expect a country as dependent on the U.S. as Ukraine to publicly admit its concern and that witnesses testified in the House that government officials did express concern privately.

The defence argued that since Ukrainian President Volodymyr Zelensky didn’t complain about the stalled foreign aid and later said he didn’t feel pressured, Trump’s actions couldn’t be construed as a threat. (Efrem Lukatsky/The Associated Press)

Was Trump’s behaviour within the norms of his office?

A consistent thread throughout three days of defence arguments has been that nothing the president did was out of the ordinary. 

The U.S. has held back aid from other countries in the past, Trump’s lawyers argued, and foreign aid was undergoing a general review at the time so it was legitimate for Trump to put a temporary hold on the Ukraine funds.

The defence boiled the Democrats’ case down to a bunch of disgruntled diplomats who disagreed with Trump’s foreign policy. Sekulow told senators Tuesday that they were being asked “to remove a duly elected president … for, essentially, policy disagreements.”

While prosecutors argue that U.S. President Donald Trump’s behaviour outside the norm of what a president is sworn to do, the defence says those trying to impeach him merely don’t like his policies. (Leah Millis/Reuters)

The Democrats stress that Trump didn’t hold up just any funds, but funds approved by Congress, a move that the Government Accountability Office has said was illegal, and only released them after the freeze became public.

That kind of bigfooting of Congress could have longlasting consequences, says Philip Bobbitt, a leading constitutional theorist and director of the Center for National Security at Columbia Law School in New York.

“It begins to create a presidency that simply supersedes the Congress,” he said. “It gives the president not the veto that the constitution gives him, but some kind of superveto that he may use for political purposes or even for his own personal interest. That’s not compatible with our system.”

What was Trump’s real motivation?

One of the criticisms the Republicans have lobbed at the House managers is that they purport to know Trump’s mind. 

“How do we tell — under the House managers’ standard — what an illicit motive is? How are we supposed to get proof of what is in the president’s head?” White House counsel Patrick Philbin asked during closing arguments Tuesday.

The Democrats say there is plenty of evidence and correspondence that attests to what Trump was thinking when he asked Zelensky to take up investigations into the Bidens and the 2016 election.

“President Trump withheld hundreds of millions of dollars in military aid to a strategic partner at war with Russia to secure foreign help with his re-election, in other words, to cheat,” Schiff said in his opening remarks to the Senate.

WATCH | David Holmes, a counsellor at the U.S. embassy in Kyiv, testifies before the House in November 2019 about a call he overheard in which Trump referenced the Biden investigations:

State Department adviser on Ukraine David Holmes re-enacts the phone call he overheard at a Kyiv restaurant between U.S. Ambassador to Ukraine Gordon Sondland and U.S. President Donald Trump 1:30

Was it an abuse of power, and is that impeachable?

The defence has accused House managers of having a “malleable” definition of abuse of power based on “subjective opinions” and say that Trump’s actions fall within the scope of his executive power.

But the prosecutors insist Trump’s misuse of his office is unambiguous:

“The president used official state powers available only to him and unavailable to any political opponent to advantage himself in a democratic election,” Schiff said in his opening statement. “His scheme was undertaken for a simple but corrupt reason: to help him win re-election in 2020.”

Dershowitz has argued that under the U.S. Constitution, a crime or crime-like behaviour has to have occurred for there to be an impeachable offence.

Legals scholars disagree on that point.

“The Framers [of the U.S. Constitution] were explicit … that high crimes were not common crimes,” said Bobbitt. “They were not ordinary crimes. They were acts that destabilized or undercut the legitimacy of the state itself.”

Tushnet agrees impeachment is not contingent on a crime but thinks the debate has become too “legalized.” 

“The question is whether the behaviour that you think was engaged in is consistent with the kinds of public, political morality that we want our presidents to exhibit,” he said.

“[Impeachment] was designed to be and has proven over history to be a mechanism for determining what the boundaries of political morality are thought to be.” 

Was Trump justified in withholding witnesses and documents?

Democrats allege Trump obstructed their investigation into his dealings with Ukraine by refusing to turn over relevant documents and preventing White House advisers and government officials from testifying and releasing records during the House impeachment hearings.

“Would you like to see them?” Schiff asked senators early in the trial. “In any courtroom in America, you’d get to see them.”

WATCH | Adam Schiff urges senators to demand to see the documents House prosecutors subpoenaed but couldn’t get:

Democratic Congressman Adam Schiff urges the jury in U.S. President Donald Trump’s impeachment trial to allow the notes of U.S. diplomats and aides with knowledge of Trump’s dealings with Ukraine to be entered as evidence. 0:49

Republicans say the president didn’t turn over the subpoenaed documents and witnesses because the Democrats didn’t follow proper procedure when requesting them.

For example, they didn’t subpoena Bolton because they feared he would fight the subpoena in court and it would drag the impeachment process out and into the election period.

“I don’t know whether that was a good political call, but from a strictly legal point of view, I think they may be criticized for that in the future.” Bobbitt said.

Should the Senate hear from more witnesses?

The House managers have said throughout the trial that the Senate needs to hear from witnesses with firsthand knowledge of Trump’s deliberations on Ukraine who were not able to testify during the House impeachment hearings. 

That includes, primarily, acting White House chief of staff Mick Mulvaney, former national security adviser John Bolton; senior adviser to the acting White House chief of staff Robert Blair and Office of Management and Budget official Michael Duffey.

Senate Majority Leader Mitch McConnell was forced to admit that he doesn’t have the support of enough Republican senators to block a vote on calling additional witnesses at the end of the question portion of the impeachment trial. (Senate Television/The Associated Press)

While originally, Republicans were united in wanting a swift end to the Senate trial and adamant that the chamber did not need to hear from more witnesses, with only a few moderates such as Mitt Romney, Susan Collins and Lisa Murkowski on the fence, that changed significantly in the wake of the Bolton revelations. 

By Tuesday, the speculation in the halls of the Capitol was all about which Republicans might be ready to vote for witnesses, and by evening, Senate Majority Leader McConnell told senators in a closed door meeting he does not have the votes to block such a measure.

“The witness vote could easily be close,” Sen. Ted Cruz told reporters after a closed “vigorous discussion and debate” among senators. 

Sen. Ted Cruz said senators had a ‘vigorous discussion’ about the witness vote in a closed conference Tuesday. (Manuel Balce Ceneta/The Associated Press)

Potential witnesses the defence may want to call include the Bidens, Schiff and the whistleblower who originally raised the concern about the Zelensky call.

The idea of a witness swap was also still being floated — as was a suggestion that senators review the Bolton manuscript in a classified area — which Minority Leader Chuck Schumer dismissed outright, telling reporters, “There is no substitute for a witness speaking under oath to senators.”

If senators do approve witnesses, in a vote expected to take place Friday, they will still have to vote on each witness individually.