OPINION: Trump's impeachment trial defense hinges on six arguments. They can all be rebutted.
President Donald Trump’s lawyers began their impeachment arguments on Saturday with what football fans might call a “prevent” defense. Under that strategy, a team with a lead late in the game plays cautiously to avoid giving up a big play.
And now we know why.
Trump’s defense team is now offering its closing arguments. Over the course of the past few days, the group has offered six predictable defenses, each of which can be rebutted. It now appears that their goal was to simply provide Republican Senators with sufficient talking points and avoid changing anyone’s mind.
But on Sunday, that strategy appeared to backfire when it was reported that former national security adviser John Bolton’s upcoming book contradicts at least one of Trump’s defenses. By avoiding witness testimony that could have been high risk or high reward rather than addressing those facts head-on at his trial, Trump is now seeing the facts trickle out in other forums where it is difficult to control.
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More on the view from the White House ...
Dershowitz and Trump spoke today
Alan Dershowitz tells NBC News that Trump called him this morning and they had a long talk. Without getting into specifics, he indicated the president was pleased with his presentation. Dershowitz himself thought things went okay yesterday but emphasized the Middle East peace plan announcement (the reason why he was at the White House today) was more a priority.
View from the West Wing
There’s less confidence than before the Bolton book revelations that this trial will end this week; a senior administration official still thinks there’s a “strong chance” it happens but acknowledges everyone is watching for the Senate Q&A to determine more.
On the upcoming Senate Q&A
A source close to the defense team says preparations are happening for a “variety of questions” from Democrat side that they think will be “largely predictable,” but acknowledges those questions could still contain curveballs, so lawyers want to prep to make sure they can address them factually. The source says that on the Republican side, the questions will likely aim to provide greater clarity on “areas of interest” that senators have talked about privately.
John Kelly on Bolton
An administration official aimed to downplay the comments made by John Kelly about John Bolton, telling NBC News: “We don’t even know exactly what Bolton said. John Kelly doesn’t know what Bolton said.” More on that here.
What's next for the trial
As the defense makes its way through closing arguments, senators and observers are preparing for the next phase of the trial: the question and answer portion.
After speaking to aides and looking at historical precedent, here’s what we are currently expecting:
- The organizing resolution allows for 16 hours of Q+A. That’s not specified to be equally divided, but we expect the questions to alternate between parties.
- The questions must be written and are delivered, one-by-one, from either McConnell or Schumer on a piece of paper (via a clerk) to the Chief Justice at the dais.
- The Chief Justice will then read the names of the senator or senators offering the question, the specific trial team to which the question is directed, and then the question itself.
- In 1999, the person answering the question had 5 minutes to respond, and each question was to be directed to only one side.
- If one side runs out of questions, then the other party with questions keeps going.
- Hypothetically, if both sides come to the conclusion that they no longer have questions before the 16 hours has concluded then they could agree to conclude early.
- There’s no specification of how many days this will take. In 1999, it was done over three days, but that third day also included a debate and vote on the second organizing resolution to establish witness depositions.
- There is no rebuttal baked-in to the rules, but the 1999 trial allowed for some responses.
- There can be bipartisan questions. In fact, in 1999 Sen. Susan Collins was part of the only bipartisan question submitted as a part of that trial.
Senate Democrats were asked to submit their questions to Schumer’s office by midnight on Friday (that doesn’t preclude new questions from being introduced after Friday, though.)
Senators are not expected to begin the Q&A portion on Tuesday.
Klobuchar flying to Iowa campaign event between impeachment sessions
Dershowitz responds to Warren criticism
Sekulow compares impeaching Trump over request for Biden probe to limiting free speech
Sekulow compared impeaching Trump over asking Ukraine to investigate the Bidens to the limiting of free speech on college campuses.
"Do we have like a Biden-free zone? Was that what this was?" Sekulow said. "That it was — it's a — 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 the question?"
Trump asked Ukraine to probe the Bidens and Democrats as he withheld Ukrainian aid and an official White House visit with Zelenskiy.
Meanwhile, Sekulow said the impeachment amounted to a "policy difference" and "disagreement" with Trump withholding the aid.
The Government Accountability Office, a nonpartisan government watchdog, assessed that Trump violated the Impoundment Control Act through his administration's monthslong withholding of the aid.
Romney's vice, and other things senators are doing during closing arguments
As Tuesday’s session got underway, a number of senators were tardy getting to their seats. Sens. Jerry Moran of Kansas, Tim Scott of South Carolina and a handful of other Republicans trickled in late.
One person who was seated and ready: Mitt Romney of Utah. He was drinking a glass of chocolate milk, the first senator I’ve seen do so. Students of Romney may know this is his only vice.
Among those appearing especially engaged in their note-taking duties on the final day of defense arguments: Collins, Murkowski, Cassidy and Toomey.
Lamar Alexander was reading and editing something — it wasn't one of the impeachment handouts or other documents the lawyers occasionally pass around. Lindsey Graham was largely absent.
On the Democratic side, most senators appeared engaged, although Sanders seemed somewhat less so as the defense's arguments continued.
Sekulow hammers on the significance of removing a sitting president
Trump's lawyer Jay Sekulow, delivering the second of three presentations Tuesday by the president’s legal team, seemed to appeal to Republican senators with a political argument, not a legal one.
Sekulow, raising his voice and pointing his finger, hammered on the fact that senators were being asked to convict and remove a president — and in an election year.
"I want to focus today, on my section, on what you're being asked to do. You are being asked to remove a duly-elected president of the United States and you're being asked to do it in an election year,” Sekulow said. “In an election year,” he repeated.
Sekulow even mentioned the Democratic senators running for president “in this chamber right now that would rather be someplace else.”
“Why would you rather be someplace else? Because you're running for president, the nomination of your party. I get it,” he said.
ANALYSIS: Philbin acknowledges limits on Trump’s power
One of the key arguments of the president’s defense has been that it’s the president, not his aides, who set foreign policy. Patrick Philbin made that case on the Senate floor to contend it’s impossible for the president to execute foreign policy that is counter to that of the United States simply because he overrules what Cabinet secretaries and national security officials say is in America’s interests.
That is “fundamentally anti-constitutional,” Philbin said. And he’s right about that. The president is elected, and his assistants, no matter how high their rank are not.
But Philbin had just acknowledged a truth about policy-making that is equally important and which speaks directly to the view of administration officials that releasing funds to Ukraine was in American interests.
Philbin noted that the laws passed by Congress limit the president’s power and he sets policies “within those constraints.” One of the laws passed by Congress was a spending measure directing the president to provide aid to Ukraine on a specific timetable. Administration officials urged him to act consistent with that law, which he signed, rather than outside its constraints. The Government Accountability Office has found that the administration violated the law in withholding the funds.
'You did a good job on her': Trump praises Pompeo for confrontation with NPR reporter
President Donald Trump took a moment from presenting his plan for peace in the Middle East on Tuesday to praise his secretary of state — for blasting an NPR reporter.
"That reporter couldn't have done too good a job on you yesterday. I think you did a good job on her, actually," Trump told a chuckling Mike Pompeo during his speech at the White House alongside Israeli Prime Minister Benjamin Netanyahu.
Trump was referring to an interview Pompeo did with NPR's Mary Louise Kelly last week, which the he cut off after she pressed him on why he has never publicly defended former ambassador to Ukraine Marie Yovanovitch.
After Pompeo abruptly ended the interview, an aide called Kelly back to Pompeo's private living room where the correspondent said he "shouted" and "used the F word."
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