Trump’s “defense”

I just finished reading another news report on Trump’s “defense.”  Ugh.  Talk about “he said, she said.”  Sure journalists are not expected to be constitutional scholars or historians.  But, if they talked to pretty much any one of them who was not paid by Trump or Fox News, they would find his legal claims to be completely risible.  Alas, to say so would violate all the norms of “objective” journalism.  There has to be both sides, even when one side is a complete joke of an argument.  You really don’t have to be that much of a historian or Constitutional scholar to know that if impeachment is for anything it is for abusing the powers of office for personal gain.  Whether there’s an actual crime is beside this point (and in this case, there actually was).

In a better world, more news reports would be like this piece from Qunita Jurecic and Benjamin Wittes:

Over the weekend, as the Senate prepared for the impeachment trial of Donald Trump, the newly appointed House impeachment managers and the president’s newly appointed legal team both filed their initial legal briefs.

At least, one of them was a legal brief. The other read more like the scream of a wounded animal.

The House managers’ brief is an organized legal document. It starts with the law, the nature and purposes of Congress’s impeachment power, then walks through the evidence regarding the first article of impeachment, which alleges abuse of power, and seeks to show how the evidence establishes the House’s claim that President Trump is guilty of this offense. It then proceeds to argue that the offense requires his removal from office…

By contrast, the White House’s “Answer of President Donald J. Trump” to the articles of impeachment, filed by the president’s personal lawyer Jay Sekulow and the White House counsel, Pat Cipollone, does not read like a traditional legal argument at all. [emphases mine] It begins with a series of rhetorical flourishes—all of them, to one degree or another, false. The articles of impeachment are “a dangerous attack on the right of the American people to freely choose their President,” the president’s lawyers write—as though the impeachment power were not a constitutional reality every bit as enshrined in the founding document as the quadrennial election of the president. The articles are “a brazen and unlawful attempt to overturn the results of the 2016 election and interfere with the 2020 election,” and are “constitutionally invalid on their face,” they write, as though the president’s right to extort foreign leaders for political services were so beyond reasonable question, it is outrageous that anyone might object to it…

But the message is unchanged. It’s not a legal argument. It’s a howl of rage...

The document produced by the White House this weekend is a little more organized, but the arguments and the angry tone are the same. Read together, Cipollone’s October letter and this new document written with Sekulow set expectations for the president’s defense: barely contained, and barely coherent, rage—a middle finger stuck at the impeachment process, rather than any kind of organized effort to convince senators or the public that the president’s conviction would be unmerited, imprudent, or unjust.

Consciously or not, Trump’s pick of defense counsel for the Senate trial sends the same message. 

Very good stuff from Paul Waldman, too, “The White House doubles down on its dumbest impeachment defense”

Trump’s attorneys responded with a six-page document that would have been shocking were it not just the kind of thing we’ve come to expect from this White House.

Indeed, it reads as though it was written by a ninth-grader who saw an episode of “Law & Order” and learned just enough legal terms to throw them around incorrectly. It makes no attempt to contest the facts, instead just asserting over and over that the president is innocent and the entire impeachment is illegitimate, calling it “unlawful” and “constitutionally invalid,” with no apparent understanding of what those terms mean. The articles of impeachment, Trump’s lawyers say, “fail to allege any crime or violation of law whatsoever, let alone ‘high Crimes and Misdemeanors,’ as required by the Constitution.” They then repeat this argument multiple times throughout a screed seemingly pitched to the Fox News hosts who will spend the coming days repeating its absurd claims.

The trouble, as any historian or constitutional scholar will tell you, is that just as there are crimes the president could commit that would not be impeachable (say, shoplifting a candy bar), there has never been any requirement that impeachment can only be used for violations of criminal law. Not only were the Framers deeply concerned about the potential of the president abusing his office, at the time the Constitution was written, there was no such thing as a federal criminal code…

To illustrate how foolish the White House’s argument is, let me suggest a few things the president could do that would not violate any criminal statute but that pretty much everyone in both parties would consider grounds for impeachment:

  • The president states in a news conference that if Russia wants to invade Alaska, that would be fine with him. Taking the opportunity, Vladimir Putin sends a force across the Bering Sea to occupy the state; the president refuses to deploy U.S. forces to repel them, then says, “To be honest, if anyone’s got their eye on Hawaii, I’m not going to stand in your way.”
  • With a legal advisory in hand from the Department of Justice saying that anti-nepotism laws do not apply to the White House staff, the president fires every last member of that staff and replaces them with members of his extended family, including making his 18-year-old nephew, whose only work experience is manning the soft-serve machine at a Dairy Queen, the national security adviser.
  • The president declares that his job has become tedious and says he’ll be spending the rest of his term in the White House residence getting drunk and playing “Grand Theft Auto.”

So why is the White House falling back on this argument when it’s so plainly wrong as a matter of both law and logic? There are a number of explanations. The most obvious is that they know the president is guilty of the central charge driving the impeachment, that he abused his power by trying to coerce a foreign government to help his reelection campaign by discrediting a potential opponent. So the last thing they want to do is argue about the facts of the case, except in the most perfunctory way (“I JUST GOT IMPEACHED FOR MAKING A PERFECT PHONE CALL!” the president tweeted last week)

You get the point.  The most shameful part of all of this is that they know whatever argument– nobody how absurd– they come up with, Republican Senators will just go with it.  And as long as Senators and Fox News can throwing around words like illegitimate and constitutionally invalid, that will sound plenty good to the Republican base supporting Dear Leaders at all costs and enabling this national nightmare to continue.

About Steve Greene
Professor of Political Science at NC State

One Response to Trump’s “defense”

  1. R. Jenrette says:

    Life under the booboisie. And none of them seem to be embarrassed.

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