The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today, the Senators are posing written questions to counsel for both sides. The first question came from Senator Collins of Maine, who asked the question on behalf of herself, Senator Murkowski of Alaska, and Senator Romney of Utah. (You can find the clip at about 1:16 p.m ET). Here is my rough transcript:
Collins: Mr. Chief Justice, I send a question to the desk on behalf of myself, Senator Murkowski, and Senator Romney.
Roberts: This is a question for the counsel for the President. 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 interest, how should the Senate consider more than one motive in its assessment of Article I.
Senator Romney also tweeted this question (#2 on the list):
The questions I have submitted for the Q&A period of the Impeachment Trial: pic.twitter.com/JTHlKJfcNN
— Senator Mitt Romney (@SenatorRomney) January 29, 2020
This question echoes my writings on Article I.
The President's lawyer, Patrick Philbin, responded that an action with mixed motives "could not possibly be the basis for an impeachable offense." If there is both some "personal" motive and some "legitimate public interest" motive, it could not be impeachable. He asked a hypothetical about what the relevant standard is to impeach: is it "48% legitimate, and 52% personal"? He added, "you can't divide it that way." The House must establish "there is no public interest at all."
If there is something that shows a possible public interest, and the President could have that possible public interest motive, that destroys their case. So once you are into mixed motives land, it is clear that their case fails. That can't possibly be an impeachable offense at all. All elected officials to some extent have in mind how their conduct, how their policy decisions, will affect the next election. There is always some personal interest in the electoral outcome of policy decisions. And there's nothing wrong with that. That's part of representative democracy…If you have some part motive for personal electoral gain, that will somehow become an offense–it doesn't make any sense. That is totally unworkable. And it can't be the basis for removing a President.
Philbin concluded that the issues that President Trump discussed with the Ukrainian President "raised some public interest." It was "at least worth asking some question about it."
H/T to Peter Hurley for pointing out this exchange. I was on the road today and did not catch it live.