1. Trump’s defense still hasn’t answered key questions about his intent
When did Trump first pause the military aid to Ukraine? And when did he start talking to Ukraine about investigations into the Biden family?
Those are two key questions that Republican senators asked of Trump’s defense on Wednesday. And Trump’s lawyers had no answer. “I don’t think that there is evidence in the record of a specific date,” that Trump paused the Ukraine aid, White House lawyer Patrick Philbin said in response to a question about it from Sen. Mitt Romney (R-Utah). He also acknowledged there is no evidence of Trump talking about Bidens to Ukrainians before former vice president Joe Biden got in the race.
Understanding when Trump paused the aid and when he first became concerned about the Bidens would go a long way to proving or disproving Democrats’ case that he abused his power.
It’s a serious weakness in the White House’s case that they can’t rebut Democrats’ accusations with specific dates. Their argument amounts to: Just trust us, Trump didn’t have political intentions. (And if he did, it’s not impeachable.)
And after having a day to think about how to address these questions to key votes on witnesses, they didn’t have any new answers.
2. The fallout over the Trump team’s foreign interference argument
Early Thursday , House managers played a June ABC news interview on the Senate floor, in which Trump says he’d theoretically take dirt on his political opponents from a foreign adversary. Here’s the key exchange from it:
Question: “If Russia or China, if someone else offers you information on opponents, should they accept it or should they call the FBI?”
Trump: “ I think maybe you do both. I think you might want listen. I don’t there’s nothing wrong with listening.”
It’s illegal to receive campaign donations of a “thing of value” from a foreign source. But late on Wednesday, White House lawyer Patrick Philbin was asked to defend the president’s interview, and he argued it’s okay to get “mere information” from a foreign government about a political opponent.
Democratic House managers leapt to lambaste that argument. But it happened close to 10 p.m. Eastern Wednesday. Democrats picked up the thread on the second day of questions, looking for every chance to remind senators that Trump thinks it’s okay to get foreign help with his reelection, and now his lawyers are claiming that’s fine.
“What we have seen over the last couple of days is a descent into constitutional madness, “ said lead impeachment manager Adam B. Schiff (D-Calif.) at the beginning of Thursday’s proceedings, “because that way madness lies, if we are to accept the premise that a president essentially can do whatever he wants, engage in whatever quid pro quo he wants.”
Perhaps the House managers’ plan worked. Not long after, a group of conservative senators joined moderate Sen. Susan Collins (R-Maine) to ask the White House to explain under what “legitimate” circumstances a president could request a foreign country investigate a U.S. citizen.
Philbin dug into his controversial answer. He said it would be legitimate to get foreign information on someone “if there was conduct by a U.S. person overseas that potentially violated the law of that country but didn’t violate the law of this country” and there was “national interest” in the information.
3. Rand Paul’s attempt to publicly out the whistleblower
This week, Trump’s legal team evolved their defense of Trump in the directtion of: “So what if he did do it?” As they did, some Trump allies escalated their efforts to undermine House Democrats’ case in ways other than directly disputing the evidence.
On Wednesday, Sen. Rand Paul (R-Ky.), sent a question to the desk of the chief justice — and he never read it out loud. On Thursday, Paul tried again, and again Chief Justice John Roberts refused. In the question, Paul uses a name that some outlets have reported is the alleged whistleblower. We know what was in it because Paul left the trial after his question was batted down, and read it in full to a room of reporters.
My question today is about whether or not individuals who were holdovers from the Obama National Security Council and Democrat partisans conspired with Schiff staffers to plot impeaching the President before there were formal House impeachment proceedings.
— Senator Rand Paul (@RandPaul) January 30, 2020
Donald Trump Jr. chimed in, too.
Eventually, the question of whether Schiff’s staff engaged with the whistleblower before he filed his complaint was read aloud. Schiff angrily called it a “smear.” (Schiff’s committee did get a heads up about the existence of a whistleblower complaint before it got filed, but there is no evidence Schiff himself was working in concert with the whistleblower. Schiff has repeatedly said he hasn’t met the whistleblower.)
“Members of this body used to care about the protection of whistleblower identities,” Schiff said. “They didn’t used to gratuitously attack members of committee staff, but now they do … I think it’s disgraceful. Whistleblowers are a unique and vital resource for the intelligence community.”
It all came after Trump lawyer Jay Sekulow said Wednesday he’d want to talk to the whistleblower, among others, if the Senate decided to call witnesses. We know this is something Trump has said he’d want, too, likely for the reason Paul brought this all up on the Senate floor: to try to undermine the House investigation without actually addressing the evidence it gathered against Trump.
4. Democrats are increasingly pessimistic about winning the fight over witnesses
And with good reason.
After two days of questions, we know that three swing-vote Republican senators continued to ask thoughtful questions that sometimes put the White House on the spot about Trump’s intent on Ukraine. But it’s not clear who the fourth would be. (A potential, Sen. Lamar Alexander (R-Tenn.), has not asked any questions yet.)
More consequentially, Wednesday’s decision by Sen. Cory Gardner (R-Colo.) to publicly say he won’t support witnesses felt like the moment Republican senators lined up behind no witnesses. He’s a vulnerable senator up for reelection next year, and even he feels like he needs to stand by Trump for protection. Other vulnerable Republican senators followed suit. And if there’s anything that motivates Republicans, even those skeptical of Trump, it’s keeping their Senate majority.
By the start of Thursday’s trial, Senate Democrats were considering Plan B, which Sen. Chris Murphy (D-Conn.) told reporters consists of throwing a bunch of doomed votes at the Senate Friday to at least get them on the record (again) that they are rejecting witnesses.
All this means the trial could end as soon as late Friday, after two weeks of opening arguments and two days of questions from senators, likely with Trump’s acquittal.