Four Key Moments from Thursday’s Impeachment Q&A

Good arguments, bad arguments, and non-arguments.

WASHINGTON, DC - JANUARY 30: In this screengrab taken from a Senate Television webcast, Supreme Court Chief Justice John Roberts speaks during impeachment proceedings in the Senate chamber at the U.S. Capitol on January 30, 2020 in Washington, DC. On Thursday, Senators continue asking questions for the House impeachment managers and the president's defense team. (Photo by Senate Television via Getty Images)

A few highlights—and lowlights, as it were—from Thursday’s impeachment trial proceedings:

1. The Amazing Disappearing Dershowitz

The first moment worth mentioning was a non-moment: After having argued bizarrely on Wednesday that no presidential act is impeachable if one part of its motivation is to secure re-election and the president believes his re-election is in national interest, Harvard Law professor emeritus and Trump-defense-team member Alan Dershowitz never took a turn at the lectern Thursday.

Instead of addressing the Senate, Dershowitz addressed Twitter. He began with a 25-tweet-thread desperately trying to clarify his meaning, arguing that “the Framers did not intend impeachment for mixed motive decisions that contain an element of personal partisan benefit.” By early afternoon, Dershowitz had expanded on his tweets in an op-ed in The Hill, in which he accused “media pundits and partisan politicians” of “deliberately distorting the argument I made during the Senate's impeachment trial.” But you can watch Dershowitz’s Wednesday argument for yourself.

Throughout the day on Thursday, the House managers and the senators repeatedly invoked Dershowitz’s argument. Here’s lead House manager Adam Schiff responding to a senator’s question about whether Dershowitz’s theory offers “any limit” to what a president could justify by claiming his actions are in the national interest.

2. “You Can’t Make Stuff This Up”

Rep. Schiff pointed out a paradox in the Trump team’s case: In the courts, the Justice Department asserts that the House of Representatives can’t use the judiciary to enforce its subpoenas for potential witnesses, and that impeachment is the appropriate constitutional tool for the House to use. But in the Senate, the Trump defense team has repeatedly argued that the House should go through the courts to settle the question of whether witnesses can be compelled to testify.

This heads-I-win-tails-you-lose tactic was exposed especially plainly today, since, as Rep. Schiff pointed out, Team Trump was making both cases in both places on the same day:

3. The Constitution According to Gallup

Eric Herschmann, a member of the president’s legal defense team, argued that the Senate couldn’t possibly vote to remove the president—not while Americans are satisfied with him and optimistic about some aspects of the economy, politics, and society. Forget “Treason, Bribery, or other high Crimes and Misdemeanors”; all that matters is how popular the president is.

Herschmann’s argument is morally and politically laughable. But even on its own terms, it’s nonsensical, since President Trump hasn’t seen net-favorable polling averages since the first month of his presidency. If the polls are saying anything, it’s not that most Americans deeply love the president.

4. John Roberts Dissents

At the start of the session on Thursday, Senator Rand Paul submitted a question that reportedly identified the whistleblower whose report originally exposed the Ukraine scandal. Chief Justice John Roberts refused to read the question.

The surprising part of this moment isn’t the chief justice acting responsibly and doing his utmost to avoid scandal or controversy. That’s just what everyone expects of him.

No, the surprise is that Senator Paul would want to out the whistleblower, who followed all the rules and procedures in dutifully and painstakingly reporting suspected government corruption to the appropriate authorities. Surely Senator Paul, as a libertarian, must want to encourage government employees to report waste, fraud, and abuse in government. Or is there an exception for extortion?

Still, good for Chief Justice Roberts for blocking Senator Paul. It was not the only moment of quiet responsibility by the chief justice during Thursday’s proceedings. In the early evening, Senator Elizabeth Warren asked a question that referred to a potential “loss of legitimacy” for the chief justice and even the Supreme Court and the Constitution if the impeachment trial does not have witnesses. Here’s a comment from Bulwark buddy Adam J. White on that awkward moment:

https://twitter.com/adamjwhitedc/status/1223029657127325696