On President Trump’s Impeachment Defense
President
Trump’s impeachment defense team has filed its brief in response to the
articles of impeachment against him and the arguments the impeachment managers
made in their brief a couple of days ago. News reports say that the trump
defenders argue basically two things. First, the president did nothing wrong.
Second, that the allegations against him in the articles of impeachment do not
amount to impeachable offenses. They are so obviously wrong on both counts that
it's hard to know where to start to rebuff their arguments. In holding up aid
to Ukraine in an attempt to force that nation's government to announce an
investigation of the Bidens Individual-1 violated the 1974 act on disbursement
of funds approved by Congress and solicited a bribe in return for release of
those funds. He solicited a violation of campaign finance law by seeking
something of value from a foreign government for use in an American election.
He obviously and undeniably did at least these things wrong. His defense team's
argument that he did nothing wrong is simply absurd.
I think the
argument that what he did is not impeachable, while false, is less facially
inaccurate than the argument that he did nothing wrong, especially with regard
to the obstruction of Congress charge.[1]
When a president is faced with an impeachment on undeniable facts, as Bill
Clinton was, the best argument the president has is that those facts do not
establish an impeachable offense. As lawyers say, when the facts are against
you, argue the law. That’s all that Trump really has at this point, to argue
the law.
The question of
whether or not what Trump has done amounts to an impeachable offense turns on
the meaning of the Constitution's phrase "treason, bribery, or other high
crimes and misdemeanors." The consensus among scholars seems to be that
this language does not require a criminal violation of the law. As Lawrence
Tribe, the nation's premier constitutional scholar, says, when the Constitution
was adopted there were no federal criminal laws. This language could hardly
require violation of something that didn't exist at the time it was adopted. Trump
did violate several laws as I noted above, but it seems to be relatively well
established that impeachment does not require a criminal act.
The first of
the two impeachment articles against Trump charge him in effect with abuse of
power. That is, he used the power of his office in an unacceptable way. Alan
Dershowitz, one of Trump’s lawyers, has said publicly that abuse of power is
not impeachable. Yet how can that be true? Surely the framers of the
Constitution intended to protect the republic against a president who
disregarded the constitutional provisions on presidential power to the
detriment of the national security or other vital national interests. That is
precisely what Trump has done. Congress established that providing aid to
Ukraine in its battle with Russia is in our national interest. It really
doesn’t matter for our purposes here whether that finding is correct or not. It
is the law of the land. Trump used the power of his office to thwart the
implementation of the policy Congress had established, however temporarily. It
simply is inconceivable that the framers of the constitution did not intend
such actions to be impeachable. They are. They must be.
Under any more or less objective factual and legal
analysis the arguments Trump’s lawyers make against his impeachment and removal
from office fail. They are factually and legally untenable. Sadly that does not
mean that the Senate will remove him from office. Because the Republicans are
the majority party in the Senate, because they care more about keeping their
party in power than they do about anything else, and because removing him from
office requires a vote of two-thirds of the senators, they almost certainly
will not. They should, but they won’t. How sad for our suffering republic that
we have descended to this level.
[1]
The weakness of the second article of impeachment charging obstruction of
Congress is that while Trump certainly did obstruct Congress, Congress’ remedy
for that obstruction was to take Trump and his people to court to enforce their
subpoenas. The House impeachment committees didn’t do that. Certainly doing it
would have taken far too long, which is why those committees didn’t do it.
Still, in theory at least they had a remedy for Trump’s obstruction that they
did not pursue. That they didn’t is a stronger defense against impeachment
article two than any argument Trump has against article one.
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