On Saturday, the House managers filed their 111-page trial brief in the Senate impeachment trial. House Democrats say Senate ‘must eliminate the threat’ that the president poses to national security:
With opening arguments in the Senate trial to begin Wednesday afternoon, the seven House managers filed a 111-page legal brief that lays out their case against Trump, arguing that the Senate “must eliminate the threat” to national security by convicting and removing him from office.
“The evidence overwhelmingly establishes that he is guilty of both,” the managers wrote in the brief. “The only remaining question is whether the members of the Senate will accept and carry out the responsibility placed on them by the Framers of our Constitution and their constitutional Oaths.”
Team Trump responded not with a legal defense presenting exculpatory evidence, but a 7-page trial brief that amounts to a primal scream drawn from Trump’s Twitter rages against impeachment:
Echoing months-long criticism of the investigation by Trump and his allies, the White House said the charges were the result of a “lawless process” and assailed House Democrats for a “transparently political act.”
In the White House response, lawyers Jay Sekulow and Pat Cipollone said there was no basis for either article of impeachment. They argued that Trump did nothing wrong in his dealings with Ukraine and that his release of a rough transcript of his July 25 call with Ukrainian President Volodymyr Zelensky was “unprecedented transparency.”
“The articles of impeachment violate the Constitution. They are defective in their entirety,” the White House said.
The response from Trump’s legal team did not directly address the allegations against the president … dismissing the case as a “dangerous attack on the right of the American people to freely choose their president.”
Former White House counsel for Richard Nixon, John Dean, says that the legal brief out of President Donald Trump’s White House was so bad that it had to have been dictated by Trump himself. Watergate’s John Dean thinks Trump wrote part of his legal team’s brief — because it’s so terrible:
Saturday evening, Trump’s legal team, chaired by Trump lawyer Jay Sekulow and White House counsel Pat Cipollone, filed their own form of a legal brief that responded to the case filed by Democrats ahead of Tuesday’s impeachment trial.
The document called the proceedings “constitutionally invalid” and claims House Democrats are staging a “dangerous attack” with a “brazen and unlawful attempt to overturn the results of the 2016 election and interfere with the 2020 election.”
During a Sunday appearance on CNN, Dean explained that the legal brief from the Trump team was a “scorched Earth” move.
“I think it’s actually going to insult some of the lawyers in the Senate if their more detailed brief is of the same tone, they’re making a serious mistake. Lawyers are not going to buy into this. Most members of the Senate, both parties are lawyers,” said Dean.
He went on to attack the president and his team for attempting to distort the facts, give false statements and pick out small things he’s done right to justify his breaking of the law.
“That’s really what it was, and the House has evidence, as you well know,” said Dean. “Any news person, any person following the news would know it’s been going on for months, involving multiple people. It wasn’t just two phone calls to the president of Ukraine.”
Dean went on to speculate who really wrote the brief was the president himself.
“I actually thought Trump might have dictated part of this brief like he did the letter that Cipollone sent to Congress that said that what they were doing was not proper,” Dean also said. “It’s of that vernacular. It’s not legally sophisticated. It actually plays to the base.”
CNN host Ana Cabrera asked if Trump’s “scorched Earth” move could actually work for him among the public.
“No,” said Dean. “They are not strong legal arguments, and they will not weather the arguments on the floor.’
Jennifer Rubin of the Washington Post, who is also a lawyer, gets it exactly right: The media must expose bad-faith arguments on impeachment:
The temptation in a trial, even an impeachment trial, is to treat both sides as presenting equally plausible, legitimate arguments. “The prosecutors say X; the defense says Y.” When one side, however, submits a filing with 111 pages of finely detailed argument referencing and cross-referencing hours of testimony and the other side submits six pages of “Witch hunt!” and “The Democrats hate President Trump,” it is incumbent upon the media to point out that the first is a legitimate argument and the second is noise.
Republicans repeatedly have advanced bad-faith arguments and dropped them when they proved too ridiculous to sustain, only to move on to a new argument, equally spurious.
* * *
We have reached the point at which Republicans have failed to discredit any essential piece of evidence Democrats have presented. Arguing that the House wanted to impeach Trump from Day One or that impeachment is “unconstitutional” (an impossibility because the Constitution provides for impeachment under whatever rules the House sets forth), Republicans use retorts that are nonresponsive and incoherent. In sum, after arguing for months that all these people were lying, the White House cannot produce a single witness or document to disprove the central allegations. The lies that Trump told (e.g., no quid pro quo, he wanted to root out corruption) were part of a coverup. The media are obligated to point this out.
The next category of bad-faith arguments concerns the Senate’s apparent refusal to call available witnesses and documents. Here again, the media should point out: Witnesses appeared in every Senate impeachment trial, and the oath senators take is to provide a fair trial. To the extent Republicans complain about the lack of firsthand evidence, they are obligated to allow the House to call acting White House chief of staff Mick Mulvaney, former national security adviser John Bolton, senior adviser to the acting White House chief of staff Robert Blair, Office of Management and Budget official Michael Duffey and Giuliani associate Lev Parnas.
[T]he media’s obligation is to point out that the Republicans’ arguments are inconsistent with precedent, with basic notions of justice and with the oath they took to hold a fair trial. Simply saying “Democrats want witnesses, Republicans do not” is to give Republicans’ arguments credence they do not warrant. This is accurate: “Democrats want witnesses, as has been the case in every impeachment; Republicans want to prevent firsthand testimony of critical events for fear of further incriminating Trump.”
The next strain of bad-faith arguments will presumably be the province of Alan Dershowitz, who has taken to calling abuse of power unimpeachable. This is wrong. It’s not a questionable argument. It is a false one. In Federalist 65, Alexander Hamilton wrote that impeachment was designed to address acts that “proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” The framers did not give impeachment power to the courts because the adjudication here is not of a violation of law; it is of violation of an oath and destruction of our system of government.
Don’t take my word for it. Hundreds of law professors agree:
There is overwhelming evidence that President Trump betrayed his oath of office by seeking to use presidential power to pressure a foreign government to help him distort an American election, for his personal and political benefit, at the direct expense of national security interests as determined by Congress. His conduct is precisely the type of threat to our democracy that the Founders feared when they included the remedy of impeachment in the Constitution. …
Impeachment is a remedy for grave abuses of the public trust. The two specific bases for impeachment named in the Constitution — treason and bribery — involve such abuses because they include conduct undertaken not in the “faithful execution” of public office that the Constitution requires, but instead for personal gain (bribery) or to benefit a foreign enemy (treason).
Impeachment is an especially essential remedy for conduct that corrupts elections.
Law professor John Mikhail points out that “abuse of power was one of the articles of impeachment adopted by the House Judiciary Committee against Richard Nixon in 1974 and against Bill Clinton in 1998.” Likewise, “In the impeachment of President Andrew Johnson, House Manager Benjamin F. Butler of Massachusetts defined ‘high crime or misdemeanor’ to include ‘the abuse of discretionary power from improper motives or for any improper purpose.’”
The media must call foul if Dershowitz makes this bad-faith argument that abuse of power, which has been cited in past articles of impeachment, is not impeachable.
In sum, the three types of bad-faith arguments — accusations of falsity (effectively dropped when evidence is irrefutable), insistence on suppressing evidence and denial that abuse of power is impeachable — should not be given credence. (Of course, the first and second are mutually exclusive. If the Republicans think all the existing witnesses and documents are false, then Democrats should be entitled to call the witnesses with firsthand knowledge.)
Republicans’ bad-faith assertions are not defenses but chum thrown in the ocean of Fox News misinformation, designed to give cowardly senators an “out” to avoid voting for witnesses and for impeachment. The media should not become handmaidens to Trump’s effort to create a false equivalence between Democrats’ fact-based arguments rooted in the Constitution and Republicans fact-free howling and misdirection.
If senators want to break their oaths, that is up to them, but the media should not provide the cover of legitimacy to the arguments they manufacture to avoid an uncomfortable reality: Senate Republicans have no constitutional or factual basis for acquittal.
Harvard law professor and constitutional law expert Laurence Tribe, who wrote the damn book on impeachment, adds, Trump’s lawyers shouldn’t be allowed to use bogus legal arguments on impeachment:
The president’s lawyers have made the sweeping assertion that the articles of impeachment against President Trump must be dismissed because they fail to allege that he committed a crime — and are, therefore, as they said in a filing with the Senate, “constitutionally invalid on their face.”
Another of his lawyers, my former Harvard Law School colleague Alan Dershowitz, claiming to represent the Constitution rather than the president as such, makes the backup argument that the articles must be dismissed because neither abuse of power nor obstruction of Congress can count as impeachable offenses.
Both of these arguments are baseless. Senators weighing the articles of impeachment shouldn’t think that they offer an excuse for not performing their constitutional duty.
The argument that only criminal offenses are impeachable has died a thousand deaths in the writings of all the experts on the subject, but it staggers on like a vengeful zombie. In fact, there is no evidence that the phrase “high Crimes and Misdemeanors” was understood in the 1780s to mean indictable crimes.
On the contrary, with virtually no federal criminal law in place when the Constitution was written in 1787, any such understanding would have been inconceivable. Moreover, on July 20, 1787, Edmund Randolph, Virginia’s governor, urged the inclusion of an impeachment power specifically because the “Executive will have great opportunitys of abusing his power.” Even more famously, Alexander Hamilton in Federalist 65 defined “high crimes and misdemeanors” as “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”
Any number of such violations of the public trust — such as working with foreign governments in ways that make the president beholden to their leaders, or cooperating with those governments to bolster the president’s reelection — clearly must be impeachable even though they might violate no criminal law and indeed no federal statute at all.
The related suggestion that, even if some noncriminal offenses might be impeachable, “abuse of power” is not among them is particularly strange. No serious constitutional scholar has ever agreed with it. The suggestion turns the impeachment power on its head.
The logic of impeachment as applied to the presidency is that the president has unique authority conferred by Article II. If he abuses that authority for personal advantage, financial or political, he injures the country as a whole. That is precisely why the framers rejected the idea of relying solely on an election to remove an abusive president from office. Indeed, waiting for the next election is an option that is obviously insufficient when the abuse of power is directed at cheating in that very election.
Justice Joseph Story wrote in 1833 that there are “many” impeachable offenses, none of which is “alluded to in our statute book,” because the abuses of power that constitute “political offences” are “of so various and complex a character, so utterly incapable of being defined, or classified, that the task” of enumerating them all through “positive legislation would be impracticable.”
As if to match one great justice with another, Dershowitz on Sunday cited Justice Benjamin Curtis, a dissenter from the infamous Dred Scott decision. Curtis, after stepping down from the court, represented President Andrew Johnson in the 1868 impeachment trial and, Dershowitz claimed, prevailed by insisting that abuse of power is not an impeachable offense.
That is false. They actually lost a Senate majority (and avoided by a single vote the supermajority needed to remove Johnson) only because one senator appears to have been bribed to vote for the president. And, so far as the arguments themselves were concerned, Dershowitz is also misrepresenting. The fact is that Curtis, in his opening statement representing the president, and Attorney General Henry Stanbery, in his closing statement, insisted both that Johnson had broken no valid law and that he had not abused his presidential powers in any way.
They objected to impeaching Johnson on the basis of his unsuccessful attempts to fire his secretary of war in violation of the Tenure of Office Act, arguing that Johnson hadn’t actually violated the act and that in any event was within his rights to deem it unconstitutional, as it ultimately was held to be. They objected to impeaching Johnson for the manner of his “executive administration.” They objected to impeaching him for having disgraced the office through his outlandish insults to members of Congress, arguing that doing so would undermine the “precious right … of free speech.”
But, far from viewing “abuse of power” as unimpeachable, the defense team in Stanbery’s closing took the opposite tack, saying of Johnson that he never misused “public money” or injured any “public officer” or “appropriated the public funds … unlawfully to his own use” but, rather, “stood firm as a rock against all temptation to abuse his own powers or to exercise those which were not conferred upon him.”
The president is entitled to robust legal representation. But his lawyers should not be allowed to use bogus legal arguments to mislead the American public or the senators weighing his fate.
Chief Justice John Roberts is going to be put to the test in what he allows to be presented in this Senate impeachment trial. How seriously he will take his role as presiding officer over this impeachment trial remains an open question.
Alexander Heffner, PBS host of “The Open Mind,” cautioned against putting faith in Chief Justice John Roberts. Chief Justice John Roberts is far from the impartial savior Democrats are hoping he’ll be:
In an interview with Rev. Al Sharpton, Heffner outlined why Roberts’ impartiality isn’t exactly what Democrats think it is.
“But I’m tired of hearing about Chief Justice Roberts impartiality, this idea that he’s some kind of paragon of constitutional order,” Heffner said. “The proof is in the pudding. The reality is this Supreme Court had an opportunity to review the cases about whether the public should have access to Trump’s business and personal tax returns, whether the public should have the testimony of [John] Bolton and company.”
He noted that in those cases, the High Court refused to give a decision in a timely manner.
“So, the Chief Justice knows, he’s intelligent, that he’s presiding over this trial where there’s incomplete evidence in part because of his own cover for the Republican Party,” Heffner continued. “This is a Chief Justice who sided with the majority that took voters off the rolls in Ohio for no other reason than they didn’t vote or they moved. He sided against marriage equality. Let’s understand this so-called judicial temperament. It may look like it, but it’s not the reality of the experience, and the Democrats ought to be super watchful of this because we know this game from [Brett] Kavanaugh, from [Neil] Gorsuch. We know what game he’s playing to give the Republicans cover.”
History will be the ultimate judge.