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Sen. Romney drills into the impeachment case against Trump

(Erin Schaff | The New York Times) Sen. Mitt Romney talks to reporters at the Capitol before the start of the day's session of the Senate impeachment trial of President Donald Trump in Washington on Wednesday, Jan. 29, 2020.

Washington • After eight days of sitting quietly, Utah Sens. Mike Lee and Mitt Romney got their chance on Wednesday to question House members attempting to prove President Donald Trump should be removed from office and the White House team defending him against the charges.

Romney offered questions — some jointly with other GOP senators — drilling into the case against the president while Lee helped tee up welcomed responses from the president’s lawyers, including one specifically targeting the whistleblower that thrust Washington into a historic impeachment trial.

Lee, who promised before the trial that the president would “win in a big way” and the outcome would embarrass the Democrats, asked several questions with other senators, including one aimed directly at the White House’s narrative that Trump was acting within his power and Democrats brought articles of impeachment because they didn’t like him.

Lee's question centered on whether it was the president's prerogative to lead foreign policy and not those who work for him.

Trump lawyer Patrick Philbin responded that the president can't defy the will of agencies below him because they work for him and that “this case is built on a policy difference” and one that Trump had the power to make.

“The president is the one who gets to set foreign policy,” Philbin said.

Lee also joined Sen. Marsha Blackburn, R-Tenn., in a question about what threshold the Senate should consider and if it was higher than the House's threshold to impeach the president.

Philbin noted that the House wasn't making a “final determination” on whether the president was guilty — that's up to the Senate, which should ensure any guilty decision is based on “proof beyond a reasonable doubt.”

Rep. Zoe Lofgren, a California Democrat and one of the House managers prosecuting the impeachment articles, countered later that the Constitution does not set a threshold and that it’s up to each senator to figure out if the evidence requires a vote of guilty.

At one point during the first day of questions — the Senate will return Thursday to continue quizzing the prosecutors and defense lawyers — Chief Justice John Roberts, who is presiding over the Senate trial, turned back a question by Sen. Ted Cruz of Texas that apparently would have outed the name of the whistleblower who raised concerns about Trump’s phone call with Ukraine President Volodymyr Zelenskiy.

It was in that call that Trump asked for a “favor” of Zelenskiy to investigate former Vice President Joe Biden and his son Hunter at the same time the president was withholding hundreds of millions in aid for Ukraine. Joe Biden is now a leading contender for the Democratic nomination for president.

But Lee was able to ask a related question with Cruz and Sen. Josh Hawley of Missouri that struck right at the identity of the whistleblower.

The GOP senators asked the White House team if it was true that the official who raised concerns had worked for the National Security Council and the CIA and had worked with someone who later went on to work for House Intelligence Committee Chairman Adam Schiff, a California Democrat who led out on the impeachment articles.

“The only knowledge that we have — that I have — of this comes from public reports,” Philbin responded. “I gather there is a news report in some publication that suggests a name for the whistleblower, suggests where he worked, that he worked at that time while detailed to the NSC staff for then-Vice President Biden.”

Philbin said he didn't want to speculate about the person's identity.

Romney, who said he was coming into the trial with an open mind and is one of a few GOP senators who have said they'd like to call witnesses, targeted his questions more squarely on the case itself against the president.

Sens. Susan Collins of Maine, Lisa Murkowski of Alaska and Romney got the first question of the day about how the Senate should weigh the charge of abuse of power if the president had more than one motive to hold back the money to Ukraine, such as a pursuit of personal interest and rooting out corruption.

Philbin said that if there were multiple motives, then the House's case is “defective.”

“The standard they have to set for themselves is establishing there is no possible public interest at all for these investigations” Trump wanted Ukraine to start, argued Philbin.

“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,” he continued. “So once you're into mixed motive land, it's clear that their case fails.”

At the start of Wednesday’s trial, Romney publicly released a list of six questions he wanted answered, some of which were later asked, at least in part, by joint questions with other senators or by others.

One question drove at the defense the president's team has put forward: that the president was focused on ending corruption in Ukraine before shipping over hundreds of millions in taxpayer money.

“In what instances did President Trump discuss corruption or burden sharing in relation to Ukraine prior to the date the security assistance was ordered withheld?” Romney wanted to know.

The White House team was asked a similar question about whether Trump ever brought up concerns about corruption with the Bidens before Joe Biden launched his presidential bid, but Philbin said he couldn't respond because the answer wasn't in the record of evidence before the Senate.

Schiff, responding later, challenged that assertion and said the president could call his own witnesses to prove he was raising the issue before.

“There’s nothing to prevent them from saying, ‘As a matter of fact, tomorrow we’re going to call such-and-such, and they’re going to testify that indeed, Donald Trump brought up Hunter Biden to President Poroshenko,'” Schiff said, referring to the former Ukraine President Petro Poroshenko.

Romney's line of questioning shows that Romney is paying close attention to the details of the trial but also hinted how the senator will vote on allowing witnesses, said Brett Tolman, a former U.S. attorney for Utah who worked in the Senate previously.

“The questions also suggest an earnestness in wanting to get better answers on the ultimate questions of whether the president did what Democrats argue he did — but it is odd that none of these questions go to the issue of whether more witnesses should be called,” Tolman said Wednesday. “That suggests he has made up his mind on that issue.”

Romney, meanwhile, was mentioned a few times Wednesday, not in his role as a senator but as the 2012 Republican presidential candidate facing then-President Barack Obama.

Cruz and Sen. Lindsey Graham, R-S.C., asked whether Obama would have had the authority to ask for an investigation of one of Romney's sons.

Schiff responded that it was “remarkable” to even be having that discussion because it didn't happen but that, yes, it would have been an impeachable offense.

Using a position of power to “target their political opponent is wrong and corrupt,” Schiff said. “I can’t imagine any circumstance where that’s justified.”

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