STEVE INSKEEP, HOST:
This week's public testimony in the impeachment inquiry begins with some facts well-established. For example, there is no doubt that President Trump's - President Trump sought investigations of a political rival, Joe Biden. The president said so in a phone call to the president of Ukraine. A U.S. diplomat has already disclosed that he personally told Ukrainians they would not get military aid until the investigation was announced.
That is not stopping debate over what the facts mean. Listen here to one of the president's defenders. He is Republican Senator John Kennedy of Louisiana. On CBS' "Face The Nation," Kennedy starts out sounding like he may be open to finding the president did something wrong.
(SOUNDBITE OF TV SHOW, "FACE THE NATION")
JOHN KENNEDY: If it can be demonstrated that the president asked for and had the requisite state of mind - that the president asked for an investigation of a political rival, that's over the line.
UNIDENTIFIED PERSON: OK.
KENNEDY: But if he asked for an investigation of possible corruption by someone who happens to be a political rival, that's not over the line.
INSKEEP: Listen to the language there after the word but. Senator Kennedy leans into that second idea that the president didn't have the intent to target a rival even though Biden and his son were the only specific individuals whose investigations he sought.
How can each side make its case in public? Ross Garber joins us now. He's a law professor who teaches political investigations and impeachment at Tulane. Timely subjects, Mr. Garber.
ROSS GARBER: Good morning.
INSKEEP: Good morning. He joins us from New Orleans via Skype, I should say. Senator Kennedy just said there, you got to prove the president had a bad intent. Do Democrats have to do that?
GARBER: All right. So you know, first, an impeachment process isn't just legal. It's a legal process, but it's also political and, honestly, in some ways, primarily political. So it's not like you've got jury instructions or even clear instructions on the elements of the offense.
Now, as a practical matter, though, he's probably getting to what I think the Republicans are going to say the Democrats are going to have to show to establish an impeachable offense. The Democrats may not wind up there. So far, neither side has specifically said exactly what they believe the impeachable offenses are or what they have to prove to establish it.
INSKEEP: Oh, this is a good point. At some point, assuming the Democrats who control the House go ahead, they have to approve specific articles of impeachment that say what they believe the president did wrong. Right?
GARBER: Yeah, that's right. And the constitutional standard, as we know, is treason, bribery or other high crimes and misdemeanors. And that last part of the phrase - other high crimes and misdemeanors - is very open to interpretation. So you're exactly right. At some point, the - House Democrats, if they go forward with impeachment, are going to say, here's what we believe are the impeachable offenses.
INSKEEP: And that leads to another possible defense of the president, which we're hearing elsewhere on today's program. Nikki Haley, the president's former United Nations ambassador, in an interview, says it is, quote, "not a good practice" to seek investigations of a political rival. So she doesn't seem to be in any doubt about what the president did, but she then points out the effort failed. The investigations didn't go forward; the military aid was ultimately released. Is that a good defense - that the president tried something and it didn't work?
GARBER: See, I think that's going to wind up probably being the weakest defense. Look - if that's all the Republicans have, they're going to go with it. But I think that's probably the weakest defense they have.
And so far, one of the challenges for Republicans is that the White House hasn't really spelled out a defense. The president tweeted over the weekend that Republicans should stop trying to come up with defenses because the call and all of his actions were perfect. But at some point, I think the Republicans are going to wind up settling on, you know, perhaps, you know, maybe a few defenses but articulating them more. I think the weakest one will probably be the it-didn't-go-through because Democrats will point out - well, yeah, there are lots of crimes that aren't actually fulfilled - attempted murder, attempted bank robbery, conspiracy - all sorts of crimes that actually aren't fulfilled.
You know, I think where this is all going to probably wind up is more along the lines of where Senator Kennedy was in that clip you played, which was that the president didn't have bad intent here; it just so happened, for example, that the investigation of corruption he was looking for involved Joe Biden, a potential political rival.
INSKEEP: Is the ultimate defense for the president polling data? We're also hearing in today's program - highlighting in today's program that while more Americans support than oppose the impeachment inquiry, the numbers flip when you go into red states where Republican lawmakers are representing the people.
GARBER: Yeah. So I think that is going to be one of the big things to watch for here as this process plays out. You know, do any Republicans come over to the side of pro-impeachment? And you know, does Speaker Pelosi lose any Democrats on impeachment? When the resolution was passed to authorize the inquiry, it was very lopsided. There were no Republicans who joined, and the speaker even lost a couple of Democrats. So I think we're going to look to see whether, you know, that changes at all with this public testimony.
INSKEEP: Oh - and if the public testimony were to change the polling data one way or the other, that might cause Republicans or Democrats to flip.
GARBER: Believe it or not, there are politics in impeachment, yep.
INSKEEP: (Laughter) You did say at the beginning that it is a political as well as a legal process. Professor Garber, thank you so much. Really appreciate it.
GARBER: It's good to be with you.
INSKEEP: Ross Garber specializes in political investigations and impeachment at Tulane. Transcript provided by NPR, Copyright NPR.