WASHINGTON (CN) — The cadre of Republicans who may break party lines and vote to hear from witnesses at the Senate impeachment trial fired off pointed questions Wednesday, offering a glimpse into their take on the case against President Donald Trump after six days of arguments.
Rising with the first question in what will be a 16-hour question-and-answer period, Senator Susan Collins, on behalf of herself and fellow Senators Mitt Romney and Lisa Murkowski, asked the president’s counsel how senators should consider Trump’s motives when evaluating the abuse of power charge.
Democrats are banking on the trio, along with Republican Senator Lamar Alexander, to break party lines and vote to subpoena witnesses.
Following procedure, Collins first needed the recognition of Senate Majority Leader Mitch McConnell to pass the question to a Senate page who delivered it to Chief Justice John Roberts.
“This is a question for the counsel for the president,” Roberts said, reading Collins’ submission. “If President Trump had more than one motive for his alleged conduct, such as the pursuit of personal political advantage, rooting out corruption and the promotion of national interests, how should the Senate consider more than one motive in its assessment of Article One?”
McConnell reportedly does not have the “nay” votes to kill the Democratic push for witnesses, placing all eyes and severe pressure on Collins, Murkowski, Romney and Alexander to vote for the motion or fall in line behind GOP leadership.
Off the Senate floor and away from the public eye, McConnell met with Murkowski on Wednesday morning before the question-and-answer period kicked off. When Republican Whip John Thune joined Collins and Murkowski at their desks ahead of the start of Wednesday’s proceedings, Murkowski could be seen shaking her head both “yes” and “no.”
Cream-colored question cards — adorned at the top left corner with the seal of the Senate — were scattered on the desks of senators on both sides of the aisle. Democrat and Republican leadership cleared the questions in the days prior to prevent duplicates, with Senate Minority Leader Chuck Schumer telling reporters Tuesday that he would not censor Democrats.
Senators directed questions to the House managers, the president’s counsel, or both. Collins, Murkowski and Romney were among a relatively small group of senators who gave both teams the chance to answer their query, with the majority of Republicans passing questions to Trump’s legal team and Democrats to House managers.
Deputy White House counsel Patrick Philbin responded to Collins’ question by restating the defense team’s position that, regardless of Trump’s motives, the articles of impeachment are deficient.
Turning to the House managers table adjacent the lectern, Philbin said the Democrats have set a standard for impeachment establishing there is no possible public interest in the investigations Trump solicited from Ukraine.
“And 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,” Philbin said.
Romney pulled out a white legal pad to take notes as Philbin answered the first question. Collins, Murkowski and Romney have routinely taken notes through the past seven days of historic proceedings.
In his response to a separate question from Senate Minority Leader Chuck Schumer, lead House manager Representative Adam Schiff said, even if Trump wanted the investigations only in part to boost his election chances, that is impeachable conduct.
“I would also add in response to the last question that if any part of the president’s motivation was a corrupt motive, if it was a causal factor in the action to freeze the aid or withhold the meeting, that is enough to convict,” Schiff said. “It would be enough to convict under criminal law.”
The lead impeachment manager also took issue with the president’s counsel repeatedly arguing that mens rea, or the defendant’s state of mind, should not be considered when weighing the case against Trump.
Speaking to senators who could vote to bring new evidence to the Senate floor, Schiff said those still questioning Trump’s motives should want to hear from former national security adviser John Bolton.
The House impeached Trump in December, finding he withheld $391 million in military aid to Ukraine and a coveted White House visit for Ukrainian President Volodymyr Zelensky to pressure an announcement from Ukraine that it was investigating former Vice President Joe Biden, Biden’s son and a discredited theory about the 2016 presidential election.
Asking a question on her own late Wednesday night, Collins asked the House managers about their changing description of Trump’s conduct. The Maine Republican asked why the House Judiciary Committee’s official report accused Trump of violating federal bribery law, but the actual articles of impeachment were silent on the charge.
Representative Hakeem Jeffries, one of the House managers, answered by saying Trump’s actions were “akin to a crime”
Turning to Murkowski after Jeffries finished his answer, Collins shook her head “no.”
Late Wednesday afternoon, Collins and Murkowski teamed up for a question that further explored Trump’s motives in seeking the investigation.
“Before Vice President Biden formally entered the 2020 presidential race in April 2019, did President Trump ever mention Joe or Hunter Biden in connection with corruption in Ukraine to former Ukrainian President Poroshenko or other Ukrainian officials, President Trump’s cabinet members or top aides, or others. If so, what did the president say to who and when?”
Philbin initially dodged the question, saying he could only answer based on the record the House compiled before briefly reprising the defense team’s argument that the Biden investigation was legitimate.
He then noted Rudy Giuliani, who had Trump’s ear on Ukraine, was poking around for information about Biden in the country at least as far back as January 2019.
Biden announced his candidacy in April 2019, but rumors that he would join the race floated around for months before he formally announced.
Joining with South Dakota Senator Mike Rounds, Murkowski pressed Trump’s defense team to explain their position that the subpoenas issued by investigating committees before the House voted to formally authorize the impeachment inquiry are invalid. Ten GOP desks were empty on the floor, with two Democrats also missing from the chamber, when Roberts read out the second question from Murkowski to the body.
Echoing arguments the White House first made during the House impeachment inquiry, Philbin said House committees only operate under the authority of the full House. Because standing House rules do not mention subpoenas issued under the impeachment power and a majority of the chamber did not explicitly grant the investigating committees that authority, the subpoenas those committees issued had no force, Philbin argued.
Later in the night, Murkowski asked House managers why they did not reissue the subpoenas after the full House voted to authorize the inquiry.
Signing onto a question with Senators Todd Young and Mike Crapo, Murkowski asked each side what standard of proof senators should apply when reaching their decision — preponderance of the evidence, clear and convincing or beyond a reasonable doubt.
Representative Zoe Lofgren, one of the House managers, noted there is no court precedent or constitutional guidance senators that definitively answers question. Rather, individual senators must make their own decisions.
Philbin predictably countered, saying senators deciding something as weighty as removing a president from office should hold House managers to the highest possible standard of proof.
Alan Dershowitz, who argued on Trump’s behalf that senators should apply the standard of beyond a reasonable doubt, swung around in his chair to face the chief justice as he read the question.
Less than an hour into the question-answer period, Romney tweeted a list of six questions he submitted for Roberts to ask, three to the House managers and three to the president’s counsel.
A version of the initial question he joined with Collins and Murkowski was on that list and he asked a second on his own shortly before 9 p.m. That question asked Trump’s counsel for a specific date Trump ordered the hold on military aid and the reason the president gave for the hold at the time.
Again, Philbin said he needed to limit his answer to the House record, which he said does not pin down a specific date, but shows Office of Management and Budget officials were aware of the hold by July 3.
As for Trump’s rationale for putting the hold in place, Philbin cited a June email — released as part of a public records request — from a Department of Defense official that detailed questions that were raised in a meeting with Trump about the aid. The questions included whether U.S. firms would receive aid money and how much European countries were contributing to Ukraine.
Romney plans — in addition to the question posed with Murkowski and Collins — to ask the White House defense team: “Given that Rudy Giuliani’s May 10, 2019, letter to President Zelensky asserted he was acting with the ‘knowledge and consent’ of President Trump, what did President Trump specifically task Giuliani to do in Ukraine?”
That question relies on a trove of documents House Democrats received after the impeachment inquiry concluded.
Romney had lined up a question to ask the House managers if they have evidence Trump directly tied the military aid to the investigations and Trump’s defense team what exactly Giuliani, the president’s attorney, was doing in Ukraine last year.
“Is it the House managers’ position that neither Hunter nor Joe Biden engaged in anything that you would describe as corrupt or otherwise inappropriate?”
Republicans have increasingly focused at trial on alleged corruption involving a position on the board of the Ukrainian natural gas company Burisma Holdings held by the former vice president’s son Hunter Biden. GOP leadership has shied away from committing to subpoena the Bidens.
If Romney and the other three potential GOP swing senators vote to subpoena witnesses, however, Republicans may call the Bidens to the Senate while Democrats subpoena testimony from senior White House advisers, including Bolton and acting White House Chief of Staff Mick Mulvaney.
When the trial recessed for a dinner break Wednesday evening, Romney had not yet risen to pass any of the questions to Roberts that he tweeted out Wednesday morning.