“If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.” – Carl Sandburg.
Team Trump has already conceded the facts in this impeachment trial. They have argued that even if everything the House managers have presented in evidence is true, “so what?” Team Trump has not put forward any exculpatory witness or evidence to dispute the House managers factual case.
You should ask yourself, if the president has exculpatory witnesses, why would he not allow them to testify? An innocent man would compel these witnesses to testify to prove his innocence. Since Trump has prevented these witnesses from testifying, the jury may draw adverse inferences of his guilt. Why law of evidence supports the verdict that the president is guilty.
Team Trump has already, and will continue, to lie about the law. President Trump has not once asserted a claim of executive privilege over any witness or evidence, despite his lawyers statements otherwise. What Trump and his lawyers have asserted is a non-existent claim of “absolute” privilege — the executive branch cannot even be investigated by Congress pursuant to its constitutional oversight and impeachment functions — so the president and his lawyers reject the very legitimacy of the Article I branch of government to conduct oversight or an impeachment, effectively rendering the impeachment clauses of the Constitution, and the constitutional concept of checks and balances, a nullity.
As the Washington Post correctly observes, Trump’s impeachment defense is designed to destroy guardrails on presidential power:
The defense brief they filed Monday argues that the president “did absolutely nothing wrong” when he pressed Ukrainian President Volodymyr Zelensky to launch investigations of Joe Biden and a Russian-promoted conspiracy theory about the 2016 election. It further contends that Mr. Trump was entirely within his rights when he refused all cooperation with the House impeachment inquiry, including rejecting subpoenas for testimony and documents. It says he cannot be impeached because he violated no law.
By asking senators to ratify those positions, Mr. Trump and his lawyers are, in effect, seeking consent for an extraordinary expansion of his powers. An acquittal vote would confirm to Mr. Trump that he is free to solicit foreign interference in the 2020 election and to withhold congressionally appropriated aid to induce such interference. It would suggest that he can press foreign leaders to launch a criminal investigation of any American citizen he designates, even in the absence of a preexisting U.S. probe, or any evidence.
The defense would also set the precedent that presidents may flatly refuse all cooperation with any congressional inquiry, even though the House’s impeachment power is spelled out in the Constitution. And it would establish that no president may be impeached unless he or she could be convicted of violating a federal statute — no matter the abuse of power [Only Alan Dershowitz, a sleazy defense lawyer, will make this argument. No reputable constitutional law expert would make this unfounded claim]. Those are principles that Republicans will regret if they conclude that a Democratic executive has violated his or her oath of office. Yet Mr. Trump demands they adopt his maximalist position regardless of the consequences.
So Team Trump has conceded the facts, and the law does not support their maximalist arguments for expansion of executive power to make the president an autocratic tyrant who is above the law.
When Team Trump begins its defense of the president today, they will use most of their 24 hour presentation to “pound the table and yell like hell.”
Team Trump will claim that the process has been unfair to the president, even though it is exactly the same process followed in other congressional investigations and impeachments. Well, with one exception. If witnesses are not called to testify in this impeachment trial, as Team Trump desires, it will be the first impeachment trial in our history without witness testimony. Witnesses with firsthand knowledge of their conversations with the president will have been prevented from testifying, exposing the McConnell Rules for the sham trial it is.
Team Trump will berate Democrats as being mean to the president, that they “hate the president,” and this impeachment is motivated by partisanship. This is the Republican grievance card, they are always being persecuted for their beliefs by liberal Democrats and the media. This persecution complex is the entire basis of the conservative media entertainment complex. The fact that Donald Trump pursued a Russian conspiracy theory to ask Ukraine to open an investigation into his political rival to help him win an election, a purely partisan self-serving motivation, is somehow OK with them, because IOKIYAR.
And shockingly, Team Trump intends to do what the government of Ukraine would not do: Trump’s lawyers intend to use this impeachment trial to smear Joe Biden and his son with Russian conspiracy theories. These lawyers should be disbarred for such unethical abuses, and being willing dupes for Russian propaganda. Trump’s legal team to launch unbridled attack on Biden:
President Donald Trump is the one on trial, but brace yourself Saturday to hear an awful lot about Joe Biden.
After sitting silently on the Senate floor for three full days, White House and personal lawyers to the president plan to turn his impeachment trial into an uninterrupted attack on the former vice president — a frontrunner to be the Democrats’ 2020 nominee.
“Believe me, you’ll hear about that issue,” Jay Sekulow, Trump’s longtime personal lawyer, told reporters Friday in the Capitol during brief remarks where he previewed how the president’s legal team planned to use its allotted 24 hours of time to air a long list of familiar Trump grievances, including unsubstantiated charges of corruption against Biden.
It’s not the strategy most lawyers would take when a president’s job is on the line. But this is the Trump era and any norms from past impeachment fights appear to be out the window. More than anything, Trump’s lawyers are aiming to use their nationally-televised platform to stamp out any lingering consideration by a handful of Senate Republicans to join Democrats in demanding new witnesses and documents to aid their prosecution.
Whether that plan works remains to be seen — a vote on the witness question looms next week and several GOP senators have suggested they’re still open-minded. Trump himself is a wildcard in that debate. He has at times demanded that Republicans call his own favored witnesses, including Biden, and at others has called for a swift rejection of Democrats’ case.
* * *
Over three days this week, Democrats laid out a voluminous case against the president, and concluded by calling him an ongoing and “imminent threat” to national security who is likely to continually attempt to corrupt the 2020 election to his benefit. The House’s lead prosecutors, Rep. Adam Schiff, described Trump as a willing vessel for Russian propaganda aimed at hurting the U.S.-Ukraine alliance. And Democrats also sought to preemptively counter many of Trump’s anticipated attack lines.
But now it’s Trump’s turn to push back. His attorneys intend to argue extensively — despite voluminous testimony to the contrary — that repeated calls for Ukraine to investigate Biden reflect a genuine concern about corruption rather than a politically motivated attempt to damage a rival.
They also contend that Biden sought the removal of a Ukrainian prosecutor who was investigating Burisma, an energy company where Biden’s son, Hunter, was serving on the board of directors.
Democrats presented extensive evidence during the Senate trial that the Ukrainian prosecutor Biden and the Obama administration helped remove was an impediment to anti-corruption investigations. Rather, witness testimony collected by the House suggested that Trump seemed fixated on pushing a sham investigation into Biden in order to damage the former vice president’s political prospects headed into the 2020 Democratic nomination fight. Democrats also gathered extensive evidence to show that Trump privately professed no interest in anti-corruption efforts in Ukraine and other countries.
The high-profile effort by Trump’s attorneys to delve into the Bidens is in many ways akin to the outcome Democrats sought to head off when they first began their impeachment investigation.
“What they hope to achieve in the Senate trial is what they couldn’t achieve through their scheme,” Schiff said Friday night. “It’s about completing the object of the scheme through other means — through the means of this trial.”
Trump’s lawyers won’t just dwell on Biden. They also intend to make an extensive case that Democrats’ entire impeachment process must be discarded as invalid. Leaning on outside-the-mainstream constitutional theories, the Trump team has argued that the House’s impeachment is “defective” because it didn’t charge him with violating a criminal statute. [This has never been required for impeachment in 15 prior impeachment trials in the Senate.] And they dispute that Trump can be booted from office over a charge he rejected congressional subpoenas.
“This idea that you obstruct Congress by exercising … constitutional privileges is absurd, absolutely absurd,” Sekulow said. [Once again, Trump has never asserted executive privilege over any witness or evidence. He has asserted a non-existent “absolute” privilege.] “These are fundamentally important rights, the way our separation of powers works, under our form of government.” [To accept this maximalist argument of absolute privilege would be to destroy checks and balances.]
Saturday morning will be just a preview of the #Foxgasm shit-show of Russian propaganda that will begin in earnest on Monday. “I’d call it a trailer,” Sekulow said. “Coming attractions.”
There must be consequences for these disreputable Trump lawyers. As Jennifer Rubin of the Washington Post says, Lawyers need to denounce dishonest lawyering:
When bombarded by constant lies from the White House and President Trump’s Republican toadies — e.g., the Ukrainians did not know aid was withheld, there was no “quid pro quo” — we should not ignore that there is a great deal of dissembling coming straight from Trump’s lawyers. Contrary to popular cynicism about lawyers, this is not acceptable, and state bar investigators have an obligation to police their own, regardless of whether a lawyer is in a court of law or a Senate court of impeachment.
A case in point: White House counsel Pat Cipollone lied during the Senate impeachment trial when he said Republicans were not allowed in the secure briefing room during House impeachment hearings. Confronted by this blatant untruth, one of Trump’s lawyers, Robert Ray, declared, “I’m not interested in wading in the procedural weeds here.”
Stop right there. Ray knows Cipollone lied; Cipollone knows he has been caught. Neither has corrected the assertion or apologized to the Senate. Some senator should send a note up to Chief Justice John G. Roberts Jr. asking him to admonish Cipollone.
In a court, the judge would not only intervene but very possibly hold the lawyer in contempt for such a blatant misrepresentation. Should Cipollone not come clean, his home-state bar should investigate. It is one thing to get carried away and overstate or misstate something but quite another to allow a known falsehood to go uncorrected.
We have yet to hear from Alan Dershowitz at the Senate trial, but fact checkers should be at the ready. Philip Bobbitt at Lawfare blog observes that Dershowitz is claiming (falsely) that because the president is supreme in foreign policy, he can hold up funds appropriated by Congress; therefore he could withhold aid from Ukraine. Dershowitz argued in a statement last week: “Consider the actual situation that former President Barack Obama created when he unilaterally made the Iran deal and sent that enemy of America billions of dollars without congressional approval.”
For starters, the argument that Democrats sent Iran U.S. money is a four-Pinnochio lie that Trump has been pushing for a while. Obama released frozen assets owned by Iran pursuant to discretion afforded to him under sanctions legislation. (I did not favor the Iran deal as negotiated, but unfreezing the money was in no way, shape or form unconstitutional.)
As bad as that factual misstatement, Dershowitz’s assertion that the president can do whatever he wants with aid is flat wrong and contrary, in this context, to the Impoundment Control Act. Moreover, the reason for withholding aid can certainly be an impeachable act, as Bobbitt points out:
It is true that an impeachable “abuse of power” can’t simply consist in using the powers of the executive for personal, political gain; that happens all the time. Abuse of power, for impeachment purposes, must consist in corruptly using those powers for personal, political gain. If the president in fact withheld military assistance authorized by Congress in order to gain an advantage over former Vice President Joe Biden, that was an unlawful and corrupt abuse of power.
In other words, a president can sign an executive order for emergency relief for a key battleground state, knowing it will help him in an election. But he cannot threaten to withhold aid unless the state’s governor announces state police is investigating his political opponent. The inapt analogy to legitimate exercises of presidential authority is flatly dishonest. (“The fact that the GAO confirmed that this was a violation of law is not, as Dershowitz claims, irrelevant,” Bobbitt explains. “And the claim that other presidents violated the same provisions — without a showing that they did so for personal, political reasons — has nothing to do with the question of impeachment.”)
Perhaps Dershowitz is not intentionally misleading the public and the Senate. He might be an exceedingly incompetent and ignorant lawyer, but I doubt that. I suspect he has gotten so used to saying whatever lame argument pops into his head when interviewed by sycophantic conservative radio and TV hosts that he has forgotten the ethical standard to which all attorneys must abide in a legal setting. (He shouldn’t be lying anywhere, but for our purpose let’s just focus as his professional utterances in defense of a client in a legal setting.)
It is time for state bar members and distinguished lawyers to call out this sort of egregiously improper and dishonest lawyering. If Trump’s lawyers won’t abide by the simple code of ethics, it is time for their peers to step forward to enforce it.
More importantly, it is time for the “potted plant,” Chief Justice John Roberts, to assert his role as presiding officer over this impeachment trial to enforce the professional code of ethics. He should not permit lawyers to make transparently obvious lies without a rebuke or admonishment, and should prevent the dissemination of irrelevant evidence of Russian propaganda in his “court.” If Senate Republicans want to overrule the Chief Justice by voting to overturn his evidentiary rulings, let them go on the record and expose them for who and what they truly are.
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