As Donald Trump’s Senate impeachment trial began on January 16th, many of us wondered how Trump’s legal team would respond to the serious accusations contained in the two articles of impeachment. It didn’t take long to realize that these lawyers serve as an extension of Trump; they are responding in the manner we have come to expect from Trump whenever he is confronted with his misdeeds.
Trump is accused of (1) abuse of power and (2) obstruction of Congress. The abuse of power charge concerns Trump’s conduct with regards to Ukraine: “President Trump solicited the interference of a foreign government, Ukraine, in the 2020 United States presidential election. He did so through a scheme or course of conduct that included soliciting the government of Ukraine to publicly announce investigations that would benefit his re-election, harm the election prospects of a political opponent, and influence the 2020 United States presidential election to his advantage. President Trump also sought to pressure the government of Ukraine to take these steps by conditioning official United States government acts of significant value to Ukraine on its public announcement of the investigations.”
The obstruction of Congress charge concern’s Trump’s unprecedented “stonewalling” of the House of Representatives inquiry: “Donald J Trump has directed the unprecedented, categorical and indiscriminate defiance of subpoenas issued by the House of Representatives pursuant to its sole power of impeachment.”
These are serious charges — much more serious than those charges levied against Bill Clinton, twenty years ago — and deserve serious consideration. Therefore, it’s reasonable to expect Trump’s legal team to behave professionally. That’s not happening.
Rather than defend Donald Trump in the conventional manner, Trump’s attorneys have chosen to act as an extension of Trump — to engage in the abrasive and devious behavior that has characterized Trump’s political career. This behavior has four components.
1. AVOIDANCE: Trump’s attorneys are not directly responding to the accusations. That is, rather than respond to the accusation that Trump sought to manipulate Ukraine for his own political advantage, Trump’s attorneys respond that Trump’s (notorious) phone call with Ukrainian President Zelensky was “perfect” and then change the subject.
Trump’s lawyers responded to the the articles of impeachment with a 109 page brief (https://www.justsecurity.org/wp-content/uploads/2020/01/ukraine-clearinghouse-Trial-Memorandum-of-President-Donald-J.-Trump-january-20-2020.pdf) that is much more emotional than factual. In a blistering analysis (https://www.justsecurity.org/68181/four-fundamental-flaws-in-president-trumps-impeachment-trial-memo/) legal scholar Michael Gerhardt stated: “It would take more than 109 pages to correct all of the document’s fallacies and incorrect statements of law and fact… [it is] more of a political screed than a legal document deserving of respect and serious consideration by senators, the public, historians, and constitutional scholars.”
Gerhardt observed that the Trump brief, rather than rely upon reasoned analysis, resorts to “bluster:” “[Thereby] proving the old adage that, ‘If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table.'”
2. ATTACK: Rather than respond directly to the accusations, Trump — and his attorneys — attack those who formulated them. As Democrats presented evidence on the abuse-of-power charge, Trump — and his Republican allies — hurled abuse at them (https://www.washingtonpost.com/politics/democrats-scale-back-language-as-trump-and-gop-press-ahead-with-attacks-on-senate-impeachment-trial/2020/01/22/792f642e-3d55-11ea-8872-5df698785a4e_story.html? ). “The Republican barrage was led by Trump himself, who in Davos, Switzerland, called the top House managers ‘sleazebags’ while denouncing his impeachment as a ‘hoax’ and ‘disgrace’ to his presidency.”
The Trump legal brief began: “The Articles of Impeachment now before the Senate are an affront to the Constitution and to our democratic institutions. The Articles themselves—and the rigged process that brought them here—are a brazenly political act by House Democrats that must be rejected. They debase the grave power of impeachment and disdain the solemn responsibility that power entails… The process that brought the articles here violated every precedent and every principle of fairness followed in impeachment inquiries for more than 150 years.”
3. LIE: Unfortunately, Trump and his lawyers have chosen to lie about many aspects of the impeachment accusations. Michael Gerhardt noted, “The [Trump legal team] Memorandum is replete with misrepresentations and false statements of fact. For example, it reiterates the canard that the whistleblower’s report is a ‘false account.’ There was nothing false about it. It was corroborated by virtually every witness who testified before the House Intelligence Committee, and so much the worse for the President that the people testifying against him were not Democrats but people he had appointed himself. It does not just strain credulity but decimates it to maintain that everyone who has testified under oath in these hearings is somehow lying while only the President is telling the truth.”
4. MISREPRESENT THE CONSTITUTION: Finally, Trump and his legal team have not responded to the articles of impeachment with reasoned legal arguments but, instead, with variations on the theme: Trump is above the law.
Michael Gerhardt observed, “The Memorandum is replete with misrepresentations and false claims about the law and about impeachment practices and procedures as well. For example, the Memorandum repeatedly complains that the House did not afford the president ‘due process.’ Throughout the House’s impeachment proceedings, Republicans proclaimed ‘due process’ was a problem. Yet, the very same Republicans who made this complaint were invited to or participated in the closed door depositions the President is now complaining about… The President had these safeguards, and more, throughout the House proceedings. He was given a surplus of fair process (including being invited to attend the testimony of constitutional law scholars and even have his counsel question them), but he turned the opportunities down. Importantly, the President was also given the explicit opportunity… to have his counsel present for hearings and object to the admission of testimony and evidence when that information was submitted to the House Judiciary Committee by the House Intelligence Committee witnesses.”
Summary: In Congressman Adam Schiff’s brilliant closing remarks at the January 23rd Senate Impeachment trial (https://www.rev.com/blog/transcripts/adam-schiff-closing-argument-transcript-thursday-impeachment-trial), he adopted the solemn theme “right matters.” “If the truth doesn’t matter, we’re lost. [The] Framers couldn’t protect us from ourselves, if right and truth don’t matter. And you know that what [Donald Trump] did was not right.. And you know you can’t trust this President to do what’s right for this country. You can trust he will do what’s right for Donald Trump.”
Sadly, for Donald Trump’s defenders, right doesn’t matter.