Where the goal posts are: Trump’s legal team argues that he didn’t ask for an investigation into Biden

On Thursday, Trump’s legal team offered a surprising defense against that charge. Not that the aid wasn’t leveraged, though they’ve offered that defense before. No, now Trump attorney Patrick Philbin argues that Trump didn’t request an investigation of Biden, and his son Hunter, in the first place.

“The question sort of assumes that there is a request for an investigation in a foreign country of a United States person,” Philbin said, responding to a question from Sens. Susan Collins (R-Maine), Roy Blunt (R-Mo.), Mike Crapo (R-Idaho) and Marco Rubio (R-Fla.). “I’d just like to bring it back, though, here to the transcript of the July 25 call where President Trump didn’t ask President Zelensky specifically for an investigation or an investigation into vice president Biden or his son Hunter.”

“There’s a lot of loose talk in sort of shorthand reference to it that way,” he continued. “But what he refers to is the incident in which the prosecutor was fired. And the first thing that he says in that whole exchange is talking about the prosecutor being fired. And it’s — and he says it sounds horrible to him and the situation with Burisma. And all that the president says is, so if you can look into it, it sounds horrible. It sounds like a bad situation.”

“That’s not calling for investigation necessarily into vice president Biden or his son,” he added, “but the situation in which the prosecutor had been fired, which affected anti-corruption efforts in the Ukraine.” (Again, the allegation — by now widely debunked — is that Biden called for the firing of Ukraine’s then-prosecutor general Viktor Shokin because Shokin was investigating a company for which Hunter Biden worked. In reality, Shokin’s disinterest in combating corruption led to a broad campaign to remove him from his post, and there’s no indication that the company, Burisma, was actively being investigated.)

Philbin noted that Zelensky’s response appeared to reinforce that argument, saying that “the issue of the investigation of the case is actually the issue of making sure to restore the honesty so we will take care of that.”

This is Philbin’s job, of course, to poke whatever holes he can in the case being presented against his client. This particular hole, though, isn’t allowing much light in.

Trump’s specific wording, shown above, was this:

“There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it … It sounds horrible to me.”

Saying that this is not asking for an investigation into Biden is like telling the police that you think your neighbor is dealing drugs and claiming that you’re not asking for an investigation into your neighbor. Of course you’re asking for an investigation into your neighbor. Maybe he deserves it; maybe it will turn out he’s selling pot to nuns or whatever. But the allegation inextricably blends the actor and the act.

Particularly because, in this case, the act is entirely dependent on the actor. Perhaps you stumbled onto big bundles of marijuana in your neighbor’s garage, which spurred your heads-up to the cops. After all, you can be pretty confident that someone is dealing drugs, and it’s a safe bet your neighbor might be involved. In the impeachment case, though, the request is to investigate something that Biden clearly did, which only happened because Biden did it. The police might be able to solve The Mystery of the Garage Drugs without focusing on your neighbor if, for example, they stopped a van driven by a third party who admitted that he would hide big bundles of drugs at your neighbor’s place. There’s no way to similarly separate Biden from Biden’s own call for Shokin’s firing. No Biden, no investigation.

Philbin is really arguing the same thing he’s argued all along, that the request from Trump was warranted. He’s arguing, in essence, that it was okay to seek that investigation. That’s a separate issue, and one on which the two sides disagree. But it’s ridiculous to extend that argument to this idea that it was somehow Biden-independent.

Particularly since we’ve seen evidence elsewhere in the impeachment inquiry that bolsters the idea that Trump was focused on Biden in particular.

Former special envoy to Ukraine Kurt Volker testified that “Burisma” and “Biden” were understood by others to be interchangeable.

“In hindsight,” he testified last year, “I now understand that others saw the idea of investigating possible corruption involving the Ukrainian company, Burisma, as equivalent to investigating former president — Vice President Biden.”

Volker was intimately involved in an effort in August to get Ukraine to release a statement announcing new investigations, including the one involving the Bidens. He was working with Rudolph W. Giuliani, Trump’s personal attorney, in pushing a Zelensky aide, Andriy Yermak, to include specific language about the probes.

What Giuliani wanted to include was a reference to an investigation “involving Burisma” — which, again, Volker said was broadly meant to refer to the Bidens. The specificity of the language, though, caused Yermak to balk.

It’s also important to notice how this request differs from the one that Philbin insisted was the one desired by Trump. Philbin claimed that Trump wanted an investigation of the firing of Shokin; Giuliani was arguing for an investigation into purported corruption by the company for which Hunter Biden worked. The thread running between both of those, of course, is Joe Biden.

The reason Philbin wants to pretend Trump’s request had nothing to do with Joe Biden is simply that he wants to undercut the idea that Trump was acting in his own interest in requesting that investigation. That question of motivation can be debated by itself, and has been. Philbin’s effort to move the goal posts on Trump’s actions into another stadium, though, can be rejected outright.

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