Trump's Team: 'Once You're Into Mixed-Motive Land,' Democrats' Impeachment Case Fails

By Susan Jones | January 30, 2020 | 6:04am EST
Deputy White House Counsel Patrick Philbin (Photo: Screen capture)
Deputy White House Counsel Patrick Philbin (Photo: Screen capture)

(CNSNews.com) - The first question at President Trump's impeachment trial on Wednesday came from the three Republicans who could go either way on the matter before them -- Sens. Susan Collins (Maine), Lisa Murkowski (Alaska), and Mitt Romney (Utah).

The three fence-sitting Republicans asked President Trump's team about motivation:


"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 1 [abuse of power]?"

Deputy White House Counsel Patrick Philbin responded that "subjective motive alone" cannot be the basis for an impeachable offense. Then he addressed the question of "mixed motive," saying that a motivation based on both public and personal interest especially cannot be the basis for an impeachable offense:

Philbin explained, "[I]t would be absurd to have the Senate trying to consider, well, was it 48 percent legitimate interest and 52 percent personal interest? Or was it the other way, was it 53 percent and 46? You can't divide it that way."

Here is Philbin's full answer to the question of mixed motivation:

If there were a motive that was of public interest but also some personal interest, we think it follows even more clearly that that cannot possibly be the basis for an impeachable offense.

And even the House managers, as they have framed their case, they have explained -- and this is pointed out in our trial memorandum -- that in the House Judiciary Committee report, they specify that the standard they have to meet is to show that this [Crowdstrike and the Bidens] is a sham investigation. It's a bogus investigation. These investigations have -- there's not any legitimate public purpose, that's the language -- "any legitimate public purpose."

That's the standard they've set for themselves, in being able to make this claim under their theory of what an abuse of power offense can be.

So it's a very demanding standard that they've set for themselves to meet. And they've even said -- they came up and they talked a lot about the Bidens, they talked a lot about these issues in 2016 election interference, because they were saying there's not even a scintilla -- a scintilla -- of any evidence or anything worth looking into there.

And that's the standard that they would have to meet showing that there's no possible public interest, and the president couldn't have had any smidgen even of a public interest motive, because they recognize that once you get into a mixed motive situation, if there's both some personal motive but also a legitimate public interest motive, it can't possibly be an offense.

Because it would be absurd to have the Senate trying to consider, well, was it 48 percent legitimate interest and 52 percent personal interest? Or was it the other way, was it 53 percent and 46? You can't divide it that way. And that's why they recognized that to have even a remotely coherent theory, the standard they have to set for themselves is establishing there is no possible public interest at all for these investigations.

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. 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.

Philbin told the Senate that all elected officials consider to some extent how their decisions and conduct will affect the next election:

There's always some personal interest in the electoral outcome of policy decisions. And there's nothing wrong with that. That's part of representative democracy, and to go start saying now that 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.  And it’s totally unworkable, and it can't be a basis for removing a president from office.

So, the bottom line is, once you're into any mixed motive situation, once it is established that there is a legitimate public interest that could justify looking into something, just asking a question about something, the manager's case fails, and it fails under their own terms.

They recognize that they have to show no possible public interest. There isn't any legitimate public interest, and they've totally failed to make that case. I think we've shown very clearly that both of the things that were mentioned -- 2016 election interference and the Biden-Burisma situation -- are things that raise at least some public interest.

There's something worth looking at there. It's never been investigated in the Biden situation. Lots of their own witnesses from the State Department said that on its face, it appears to be a conflict of interest. It's at least worth raising a question about, asking a question about it, and there is that public interest and that means their case absolutely fails.



 

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