The question from the two Republicans, centered on former vice president Joe Biden, was no different.
“Under Professor [Alan] Dershowitz’s theory,” the senators asked, “is what Joe Biden is alleged to have done potentially impeachable in contrast to what has been alleged against President Trump?”
Patrick Philbin, an attorney for Trump, stepped to the microphone to offer a response.
Over the course of the two-day question period, Philbin was the Trump team’s go-to respondent. In response to question after question, he articulated the president’s position. That meant that by the time he stood to respond to Braun and Lee, he had already addressed similar questions a number of times.
When Sen. Angus King (I-Maine) asked a hypothetical question about how Trump might seek to influence the election by asking another foreign leader for assistance, Philbin offered the president’s defense.
“The question really has nothing to do with this case,” he replied then. “I mean, it seems to be trying to get at the most extreme hypothetical related to a misinterpretation of what Professor Dershowitz was saying the other night” — a reference to Dershowitz’s assertion that a president’s interest in being reelected could be considered a motivation centered on the public good. “It’s totally irrelevant here,” Philbin declared.
He was similarly dismissive of a question posed by Sen. Elizabeth Warren (D-Mass.). Her question reversed the House’s presentation of events: What if Ukrainian President Volodymyr Zelensky offered to investigate Biden in exchange for more military aid instead, as the articles of impeachment allege, of Trump holding the aid until such an investigation began?
“A hypothetical that is contrary to what the facts we’re here to try to suggest that maybe there’s some element of bribery — that’s all beside the point,” Philbin said to Warren. “We have specific facts. We have evidence that has been presented in the record.”
One would be forgiven, then, for assuming that Philbin would similarly demur on addressing the Braun-Lee hypothetical. But, of course, one would be wrong.
First, Philbin articulated the Dershowitz theory. That holds that there are three buckets of presidential actions: those of pure motivation, those of mixed personal-public benefit and those undertaken solely for personal benefit, what Philbin called “purely private pecuniary gain.”
“I think that would be the distinguishing factor in the — what is potentially present in the facts known about the Biden and Burisma incident,” Philbin said, referring to the vice president and a Ukrainian energy company. “Because the conflict of interest that would be apparent on the face of the facts that are known is that there would be a personal family, financial interest in that situation.”
He articulated that argument.
“Vice President Biden is in charge of Ukraine policy,” he said, describing the period in 2016 when Biden called for the ouster of Ukraine’s prosecutor general. “His son is sitting on the board of a company that is known for corruption. The public reports are that apparently the prosecutor general was investigating that company and its owner, the oligarch, at the time. Then Vice President Biden has quite openly said that he leveraged a billion dollars in U.S. loan guarantees to ensure that that particular prosecutor was fired at that time.”
He went on: “One could put together fairly easily from those known facts the suggestion that there was a family financial benefit coming from the end of that investigation because it protected the position of the younger Biden on the board. So — and that would be a purely private pecuniary financial gain.”
This is an outlandish argument, for at least two reasons.
The first is Philbin’s immediate willingness to dive into a hypothetical of his own. The key sentence is the one in which he asserts that “public reports” indicate that the “prosecutor general was investigating that company and its owner, the oligarch,” as though that is uncontested and the full extent of what one needed to know. In fact, the prosecutor general, Viktor Shokin, was seen as himself being broadly corrupt — in part, according to some anti-corruption activists, precisely because he wasn’t actively investigating the company at issue.
Biden’s push for Shokin to be removed was part of the official policy of the United States at the time, a policy Biden was advancing. Members of the Senate sitting at the trial were briefed on concerns about Shokin in 2015 and early 2016. Other international organizations pressured Ukraine to make a change in Shokin’s position to better address corruption in the country. This wasn’t Biden freelancing; it was Biden doing what he was tasked to do as point person on Ukraine.
In response to King’s earlier question, Philbin had questioned the evidence that Shokin wasn’t actually engaged in an investigation of Burisma.
“This is really pretty preposterous for the house managers to come and say, particularly with respect to the Biden-Burisma incident, there can’t be any legitimate interest in raising that, questioning that because it’s all been debunked,” he said. “And the question’s been asked, where was it debunked? By whom was it debunked? Who conducted that investigation?”
That investigation was carried out in public, in part by the media.
A former Shokin deputy, for example, told Bloomberg that an investigation into Burisma and its owner was dormant. The U.S. ambassador to Ukraine in 2015 publicly criticized Shokin for not actively investigating Burisma’s owner. Seemingly the only actor who’s consistently argued that Burisma was under investigation is Shokin himself, whose motivations for making that claim can’t be separated from his views of Biden, the guy who helped get him fired.
Philbin waves all of that away to impugn Biden’s motivations and, therefore, to argue that his actions were problematic. But that context also gets to the second reason Philbin’s argument was ridiculous.
“One could put together fairly easily from those known facts,” Philbin said — referring to his own hypothetical as “known facts” — “the suggestion that there was a family financial benefit coming from the end of that investigation because it protected the position of the younger Biden on the board … and that would be a purely private pecuniary financial gain.”
That’s obviously untrue. It was well known at the time that the United States broadly was looking for change in how Ukraine addressed corruption. It was necessarily the case that, even if Philbin’s untrue claims about Biden were true, Biden’s motivations for seeking Shokin’s ouster would have been spurred by some mix of public and personal gain. And that, according to Philbin earlier in the week, would have meant he couldn’t be impeached.
In fact, Philbin spent a great deal of time on Wednesday adjudicating the balance of personal to public good from Trump’s demands of Ukraine, arguing that the House case for impeachment necessitated that Trump be acting entirely for his own benefit.
“If there is any possibility, if there is something that shows a possible public interest, and the president could have that possible public interest motive, that destroys their case,” he said. “So once you’re into mixed motive land, it’s clear that their case fails. There can’t possibly be an impeachable offense at all.”
All elected officials were considering their future careers, he said, making any decision necessarily rooted in at least some political consideration.
“To go start saying now that, well, if you’ve got a part motive that’s for your personal electoral gain that that’s somehow going to become an offense, it doesn’t make any sense,” he said. “And it’s totally unworkable, and it can’t be a basis for removing a president from office.”
Philbin’s response to the Braun-Lee question was remarkable both in how it conflicted with Philbin’s stated views on a range of other issues, yes. But it was thoroughly unremarkable in what it revealed: a willingness to completely flip the legal theory depending on who was alleged to have conducted a questionable act.
As an attorney for Trump, whose political career has been heavily predicated on a willingness to reverse his positions when useful, it’s hardly surprising at all.