House prosecutors spent much of the second day of their opening presentation in the Senate impeachment trial of President Trump trying to preempt what they expect the White House defense team to argue beginning Saturday.
In another nine-hour-plus session, the seven House managers focused on why abuse of power, one of the impeachment articles the House passed against Trump in December, doesn’t have to be a crime recognized under the law.
And they addressed head-on the topic of former Vice President Joe Biden, and his son Hunter Biden, by asserting that there’s no evidence they acted inappropriately in Ukraine — an effort to show that Trump had no credible basis for asking the Eastern European country to investigate the two men.
Although their tactic risked giving oxygen to Trump’s claims about Biden, a potential Democratic opponent in this year’s election, Democrats said it was the right move.
“They are preempting the arguments by the president’s counsel, and I think that’s important,” Sen. Kirsten Gillibrand (D-N.Y.) said. “When we receive the president’s counsel’s presentation on Saturday, we will have these rebuttals already in our mind. So I think it was effective.”
The presentation was again led by lead manager Rep. Adam B. Schiff (D-Burbank), whose steady performance so far during often tedious arguments has been heralded by Democrats — and even drew some unexpected praise from a few Republicans.
The House impeached Trump last month for withholding nearly $400 million in congressionally approved aid to Ukraine — as well as a coveted White House meeting for its president — while pressing that nation’s government to open investigations into a debunked theory about the 2016 election and Joe Biden.
Trump was also impeached for obstructing the House’s subsequent investigation by instructing federal employees not to comply with subpoenas to testify or turn over documents.
House managers are expected to wrap up their arguments Friday by focusing on the obstruction article, after which the White House’s lawyers will get 24 hours spread over three days to make their case.
The White House defense team has argued in written briefs that the president has done nothing wrong and none of the allegations described by Democrats are impeachable offenses because they “fail to allege any crime or violation of law whatsoever, let alone ‘high crimes and misdemeanors,’ as required by the Constitution.”
Rep. Jerrold Nadler (D-N.Y.), one of the impeachment managers, rejected that defense on Thursday. He said the view that impeachment must involve a violation of criminal law is “completely wrong” and described Trump’s conduct as “an unprecedented betrayal of the national interest.”
The managers’ presentation included a video clip of Alan Dershowitz, one of the president’s attorneys, arguing in the past that a crime is not needed for impeachment. Most constitutional scholars agree that the term “high crimes and misdemeanors” refers to the misuse or abuse of official power against society at large, not necessarily crimes that would be recognized and punished by a court.
Expecting that Trump’s defense team will try to shift the focus to Biden and try to justify why Trump asked Ukraine to investigate his son, House managers also took time Thursday to lay out their own narrative around Biden’s involvement in 2015 in pushing for the firing of a Ukrainian prosecutor.
Biden, working to implement the Obama administration’s anti-corruption policy in Ukraine, pressured its leaders to fire the chief prosecutor, Viktor Shokin. Shokin was widely considered corrupt, and the United States and its European allies wanted him removed. He was fired in March 2016.
At the time, Biden’s son Hunter was serving on the board of a Ukrainian gas company that had battled corruption allegations of its own. Trump has claimed, without evidence, that Biden was acting to shield that company, Burisma. And while Hunter Biden’s position raised conflict-of-interest concerns, there is no evidence of any wrongdoing by either man. In fact, Biden supporters contend that by pushing for the appointment of a stronger chief prosecutor, Biden might have actually increased the risk that Burisma would face investigation.
At the heart of the impeachment is Trump’s July 25 phone call with Ukrainian President Volodymyr Zelensky, when he pressed the Ukrainian leader to investigate the Bidens, even though Ukrainian officials have said they found no issues.
“There was no basis for the investigation that the president was pursuing and pushing. None. He was doing it only for his own political benefit,” House manager Rep. Sylvia Garcia (D-Texas) said. “President Trump asked for the investigation into Biden based on a made-up theory that no one agreed with — no one.”
Trump’s personal lawyer Jay Sekulow told reporters Thursday that the House managers, by delving into the matter, made it relevant for the White House team to raise the topic of Biden’s work.
“The door’s been open, so to speak, on that,” he said. “We will address it appropriately.”
Republicans said they are eager to hear the White House’s arguments.
“There are unanswered questions. That’s why I look forward to getting a chance to hear both sides of story,” Sen. James Lankford (R-Okla.) said.
The White House declined to participate in the House investigation and blocked many of the key witnesses and documents Democrats sought. Most of the arguments Trump’s lawyers have presented so far have focused on the procedures followed in the House investigation or declarative statements that the president was acting within his power by pressuring Ukraine and withholding the money without providing new evidence or witnesses to verify it. Unlike the House arguments, which have been publicly aired, it’s not entirely known what defense the White House will provide.
The House managers and Trump attorneys face an unusual test: laying out the evidence of a case to senators — some of whom may only have a vague idea of how it all fits together and others who may have already made up their minds.
“I know the House proceedings were heavily reported. But I think most, if not all, senators are hearing the case by the prosecution and the case by the defense for the first time,” Sen. John Kennedy (R-La.) said. “Senators, because they are busy being senators, have not heard the case.”
Still, several Republicans called the Schiff-led presentation repetitive, saying they haven’t yet learned anything new that makes them think Trump should be removed from office.
“I think I’ve heard everything they have to say six or eight times already,” Sen. Roy Blunt (R-Mo.) said. “It’s not a very deep case.”
Schiff has long been a favorite punching bag of Trump and of conservative media, particularly for his role leading the House impeachment investigation. And those attacks have continued this week on Twitter and Fox News. Trump on Wednesday said Schiff is a “corrupt politician.”
But while some Democrats once worried Schiff had become too much of a lightning rod to effectively participate in the Senate trial, his reviews from colleagues so far border on effusive.
Schiff’s final speech at the end of a lengthy Wednesday session laying out the timeline of the Ukraine scandal had Republican senators rapt, Senate Minority Leader Charles E. Schumer (D-N.Y.) said.
“Schiff had such power in his speech that he almost forced [Republicans] to listen,” Schumer said.
In another emotional closing statement Thursday night, Schiff urged the senators to find Trump guilty.
“No constitution can protect us if right doesn’t matter anymore,” he said. “And you know you can’t trust this president to do what’s right for this country. You can trust he will do what’s right for Donald Trump. He’ll do it now. He’s done it before. He’ll do it for the next several months. He’ll do it in the election, if he is allowed to.”
Sen. Kennedy told reporters earlier that Schiff had been “very eloquent” in presenting the case.
“Good job,” Sen. Lindsey Graham, another Republican and a staunch Trump ally and critic of the impeachment, told Schiff as they passed each other in the Capitol on Wednesday. “Very well-spoken.”
The praise from Graham was noteworthy since the South Carolinian built a name and national reputation as a House manager during the 1999 Clinton impeachment trial, something Schiff no doubt would not mind emulating. On the other hand, Schiff knows well the risks. He was elected to the House in 2000 by defeating Rep. James Rogan, another House manager during the Clinton impeachment whose role in the trial backfired on election day.
Other Republicans were less impressed. Sen. Ron Johnson of Wisconsin said Schiff is “very smooth, very slick. But I take everything he says with a grain of salt.”