Trial Memorandum of the United States House of Representatives in the Impeachment Trial of President Donald J. Trump
Answer of President Donald J. Trump
Harry Litman, Dershowitz and Starr may bring a slightly more reality-based Trump defense
I shall avoid any impulse to shoot fish in a barrel by employing colorful language to contrast the legal work of the House team with the Trump team’s brief screed—a short primal scream that, by the way, bears only the signatures of Messrs. Jay Sekulow and Pat Cipollone, and omits the names of Messrs. Starr, Dershowitz, and the several other denizens of the wretched hive of scum and villainy that make up Trump’s purported defense team.
The really important thing about Trump’s formal answer to the House is that it provides almost no foundation to argue against the Senate’s calling fact witnesses.
Its central contention is that, and I quote, “The President’s actions on the July 25, 2019 telephone call with President Volodymyr Zelenskyy of Ukraine (the “July 25 call”), as well as on the earlier April 21, 2019, telephone call (the ” April 21 call”), and in all surrounding and related events, were constitutional, perfectly legal, completely appropriate, and taken in furtherance of our national interest.”
Shrewdly, Messrs. Sekulow and Cipollone make no effort to argue—none, zilch, zero—that the evidence from the witnesses heard in the House were “indirect” and “circumstantial,” and therefore unreliable.
Instead, the nub of their argument is that Dear Leader can do no wrong, therefore it follows that his actions vis-à-vis Ukraine were not wrong, therefore they cannot have been a crime, therefore they cannot have been impeachable, because impeachability requires a crime.
A friend at the progressive table asked, “Do you think there’s a ghost of a chance there will be any witnesses in the Senate trial?”
My response surprised her. I responded that it depends on what Trump argues in defense.
If he and his legal team are smart, they will assiduously avoid nit-picking the facts. Instead, the question they will pose to the Senate and to the country will be: Why should Trump be impeached when almost all of the bad acts (or what we imagine to be the bad acts) of his predecessors didn’t result in impeachment?
The defense team, if it is sound in its thinking, will not defend Trump and it will not prosecute Hunter Biden. It will instead dwell ad nauseum on the alleged faults of Barack Obama, Bill Clinton, Jimmy Carter, and you name it.
A defense along those lines would at least tacitly admit the Democrats’ central narrative. Maybe even explicitly admit it, or some of it.
If the facts are not in dispute, there is no need for witnesses, because everyone agrees on the relevant facts. So just vote to acquit or convict and remove from office.
If, on the other hand, the defense team tries to dispute the relevant facts, then the pressure on Republicans ratchets up even more.
Assuming a defense that purports to be based on the relevant facts of the case, I think there’s maybe a 60 to 70 percent chance that witnesses like John Bolton will testify.
Washington Post, Top Senate Republicans reject Trump’s renewed call for immediate dismissal of impeachment charges
I find it gratifying that, in the depraved circumstances in which we live, there remains some role for logic. Rationality doesn’t matter much any more, but it still matters, at least a little.
Let’s take this in steps. Nothing new in the analysis below, but it seems the talking heads keep forgetting the key points.
- Trump, it appears, has now decided that he doesn’t want a trial, after all. Instead, he would prefer dismissal without trial.
No real surprise there.
Of course, he would.
- Republican senators, it is said, are refusing to dismiss the case in an offhand manner.
If that is true—a big “if”—then it’s a sane decision on their part, but also a surprising decision.
- Logically, Trump should be entitled to argue that the facts alleged in the articles of impeachment do not describe an impeachable offense. I didn’t say it would be prudent to make such an argument. I didn’t say such an argument would be persuasive. I said he has the right to make that argument, if he chooses to make it.
Trump’s right to make this sort of argument doesn’t depend on Senate Republicans, and it doesn’t depend on Senate Democrats. Logically, it’s his prerogative to make the argument, if he wants to.
- What tonight’s story is telling us—accurately or inaccurately—is that some significant portion of Senate Republicans are unlikely to embrace the argument that the facts alleged in the articles of impeachment do not describe an impeachable offense.
I find that both very interesting and somewhat surprising.
The reason I find it somewhat surprising is that it’s by far the best argument Republicans have, if they are bound and determined to acquit.
Their alternative route to acquittal is a real stinker.
- Rationally speaking, the other alternative route to acquittal is the say the House Democrats have not proved their case: it’s too “indirect” and too “circumstantial.”
- But, to reject the House’ case as “too indirect and circumstantial” while, at the same time, refusing to listen to the testimony of persons with direct knowledge is not just a bad argument, it’s not just a losing argument, it is in fact loony tunes.
- If Republicans want to acquit Trump based on a loony tunes argument, then be my guest.
Just go ahead.
Make my day.
My post about Greeks bearing gifts—in reference to John Bolton’s possible testimony—has elicited some support for the view that Republicans are acting like Br’er Rabbit in the briar patch, secretly yearning for Bolton to appear while pretending to fear what he has to say.
But Neal Katyal and George Conway say the fear is real. I think their view makes more sense.
And then there is the question of how this interacts with the Iran crisis. If Bolton loved Trump when it looked like he was starting a war, will he still love Trump if Putin yanks him in sensitive spot and tells Trump not to start a war?
I don’t think so.
The best explanation for what happened in the past hours, IMHO:
Putin has Trump down where the hairs are short.
And, yesterday, Putin gave a couple of hard yanks, along with some marching orders.
George Packer has some questions about Iran strategery:
What would that war look like?
How will Iran fight it?
How will the U.S. respond?
What credible allies will we have, after Trump’s trashing of the nuclear deal thoroughly alienated Europe?
Who will believe any intelligence about Iran’s actions and intentions from an administration that can’t function without telling lies?
How will American officials deliberate when Trump has gotten rid of his experts and turned his government into a tool of personal power?
What is the point of having a Congress if it has no say about a new American war?
What is our war aim, and how can it be aligned with Trump’s obvious desire to be rid of any entanglement in the region?
What will happen if Jerusalem becomes a target and Israel enters the conflict?
What will the American people accept by way of sacrifice, when nothing has prepared them for this?
Meanwhile, if you have been following the news today, you will have already Sherlocked out why Trump wants war.