If the Trump Defense Trial Brief is any indication, we will be hearing lot of bogus defenses and crazy conspiracy theories.
I wanted a way to get through it without wanting to poke my eyeballs with a fork.
So I came up with an idea: Bogus Defense Bingo here.
I can think of only one way to defend this case that would not be bogus, but I’m sure Team Trump will not use it. To see the one non-bogus defense I can think of, scroll to the bottom.
If there is a valid defense presented by Trump’s defense, I’ll be sure to let you know right away.
Note: The explanations for why the defenses are bogus are not complete. For each, I listed only a few reasons.
I: The Bogus Defenses: Explanations
#1: The call was perfect
Variation: The call shows no link between aid and political investigations
Why it’s bogus:
- The call was one part of a months-long campaign. Looking only within the four corners of the call is cherry picking evidence.
- Trump talked about investigations in the call (“look into some things”)
- The investigations were into his political opponent (thus political)
- Just because Trump didn’t announce a corrupt intent during the call doesn’t mean there was no corrupt intent
#2: Trump had “valid concerns” (about Biden, Burisma, or Ukrainian interference in 2016)
Why it’s bogus:
- All the theories about the Bidens have been debunked and are baseless
- If Trump had concerns, he should have followed legal procedures (for Ukraine, perhaps an independent prosecutor)
- His henchmen pushed for an “announcement,” not an investigation (meaning they wanted political capital, they didn’t actually want to stop or root out corruption.)
- There is a mountain of evidence showing that Trump did not care about anything other than an announcement that Biden was under investigation.
#3: No harm no foul
Why it’s bogus:
There was harm
- Trump intimidated and endangered witnesses
- As soon as Russia learned about the aid being withheld (and they no doubt learned when the Ukrainians learned) there was harm to Ukraine
- The aid was only released after Trump got caught
- Taxpayer money was leveraged for a corrupt purpose (so the citizens were harmed)
#4: Obama Did it
Variations: Hillary Clinton did it.
Why it’s bogus:
- Obama withheld aid with the support of Congress.
- Obama (or HRC as Secretary of State) never did anything at all like this. Comparisons are faulty and require cherrypicking and distortions.
#5: The House wants you to do its job
Variations: The House should have gathered more evidence / The House doesn’t get a ‘do over’ in the Senate.
Why it’s bogus:
- The Constitution gives the Senate the “sole power” to try impeachments.
- The House is not supposed to conduct the trial. The House’s job is to determine whether there is sufficient evidence for a trial.
#6: It’s All Hearsay
Variation: There is no direct evidence / it’s all speculation.
Why it’s bogus:
- The defense cannot conceal evidence and argue there is insufficient evidence.
- Circumstantial evidence is admissible and is often used to prove cases. In fact, often, circumstantial evidence is the only evidence available.
- The witnesses had direct evidence about the scheme.
- Most of the witness statements are admissible evidence under one of the many hearsay exceptions.
- The cure is to call witnesses at the trial
#7: The Mueller Report showed No Collusion
This is (1) not true and (2) has no relevance on the question of whether Trump is guilty of trying to get Ukraine to announce a bogus investigation to damage the Bidens.
Variations: The Democrats have been trying to impeach the president since he took office / Trump is the victim of a deep state plot
Why it’s bogus:
- This has nothing to do with the allegations against the president. It’s completely immaterial to his guilt or innocence.
#9: It was SO unfair!
Variations: Trump was “deprived of due process” in the House / hearings were held in underground bunkers / Trump was excluded from the process.
Why it’s bogus:
- The House followed rules and procedures previously put in place by Republicans.
- The House has the “sole power of impeachment” and they devise their own rules.
- Trump’s demands for due process were the rights due at a trial. The House does not conduct a trial, it conducts an inquiry.
#9: Abuse of Power isn’t Impeachable
Why it’s bogus:
- Saying that abuse of power isn’t impeachable means that a president is constitutionally permitted to abuse his power, which is absurd.
- The allegation isn’t too vague: The Articles explain that Power is abused when the president uses the power of the office for his own personal benefit and enrichment, or when he uses the power of his office to cheat in an election.
- The Democrats did not “make up” abuse of power. One of the Articles of Impeachment against Clinton drafted by the Republican House was for Abuse of Power.
#10: The Whistleblower was biased
Variations: The Whistleblower should be called as a witness.
Why it’s bogus:
This has no relevance on the question of whether Trump is innocent or guilty.
#11: Impeachment and removal will undo the election
Variations: Impeachment and removal will interfere with the 2020 election
Why it’s bogus:
- If impeachment undid an election, it would not have been included in the Constitution; the Constitution wouldn’t specifically give Congress the power to remove a president and prevent him from running from office in the future.
- Moreover, it doesn’t “undo” an election because the VP becomes president, not the president’s opponent.
#12: Schiff is a liar
Variations: Schiff was biased.
Why it’s bogus:
- This is immaterial to the question of whether Trump is guilty.
- (Trump defenders give two instances of Schiff “lying” and neither is a lie. In one case, he said that there was substance to the Russia collusion story (there was) and in another, her paraphrased the call, and made clear it was a paraphrase. So he didn’t actually lie.
#13: Trump said there was no quid pro quo
Why it’s bogus:
Variation: Sondland said that Trump said there was no quid pro quo
- This one is just laughable. “The defendant denies the charges,” is not a defense.
#14: The Ukrainians didn’t even know the aid had been withheld
Why it’s bogus:
- Yes, they did. They started asking about the aid shortly after it was withheld as per much sworn testimony.
#15: Joe Biden is Corrupt
Why it’s bogus:
- There is no evidence to support this.
- Even if true, this does not excuse Trump’s behavior or make his conduct any less impeachable.
#16: The evidence is insufficient!
Why it’s bogus:
- A party that conceals evidence and orders witnesses not to testify cannot draw conclusions from the evidence.
- Because Trump is concealing the bulk of the evidence, any “the evidence refutes” argument requires Trump to cherrypick facts he likes.
#17: Zelensky said there was nothing wrong
Variations: Zelensky said there was no pressure / Zelensky said there was no quid pro quo.
Why it’s bogus:
- You can’t ask the victim of a shakedown whether he was pressured while the person who shook him down still has power over him.
- We all know Trump is vindictive and would retaliate should Zelensky say anything else
- The House introduced evidence that Zelensky was under enormous pressure.
#18: Trump is trying to save the presidency
Why it’s bogus:
- Nope, he’s trying to carve out unprecedented and autocratic powers for the presidency, including ability to thwart all judicial and congressional review.
#19: The House should have taken his cases to the courts
Why it’s bogus:
- Congress has the sole power of impeachment and removal.
- Judicial review gives the final authority to the courts; the framers of the Constitution deliberately gave the power to Congress and not the Courts.
- Giving the courts the final authority allows the president to appoint his own judges.
- Allowing Trump to go to the courts allows him to delay the impeachment for years.
#20: Trump invoked valid privileges
Why it’s bogus:
- The Constitutional power includes the power to investigation (expert testimony from Prof. Gerhardt)
- Trump never claimed any privileges when refusing to cooperate with Congress; asserting privilege would have required him to redact and explain why portions were left out. He didn’t want to do that.
- Because he didn’t claim privileges when refusing to comply with subpoenas, he cannot claim it now.
- US v. Nixon is still good law
- No privileges can be used to conceal evidence of wrongdoing.
#21: Trump gave Ukraine more support than Obama
Variation: All Obama gave were blankets
Why it’s bogus:
- The circumstances in Ukraine were different during Obama’s presidency.
#22: There was no crime
Why it’s bogus:
See this Just Security post by Constitutional law scholar Frank O. Bowman.
Also:
- This is not a criminal trial. The constitution allows for no criminal punishments. Punishment cannot extend beyond removal from office and inability to hold future office.
- The federal criminal code didn’t exist when the Constitution was drafted, and the framers would have had no idea there would ever be one.
- The federal criminal code applies to all people; the president, by virtue of his office, is able to cheat and steal in ways unavailable to the average person. Creating a portion of the criminal code for one individual is absurd.
- Congress cannot possible anticipate all the ways a president might abuse his power and make a law against each.
- Requiring a statute from the criminal code trivializes the president’s offenses and allows a person to say, “A president to be removed from office for lying about an affair, but not selling foreign policy for personal gain does not?”
#23: The Articles are Duplicious.
Why it’s bogus:
- Each Article offer lots of evidence to support each allegation, but each contains a single allegation.
#24: Obstruction of Congress isn’t impeachable
Why it’s bogus:
This argument says that a president can obstruct Congress, which nullifies the impeachment and removal power. If a president can conceal evidence and refuse to work with Congress, the balance of power as outlined in the Constitution is meaningless.
II: The only non-bogus defense I can think of
First, the client admits to all the facts so that additional evidence wouldn’t be necessary. (The Prosecution would want all the evidence to ‘see how deep the corruption goes’ but the Defense could call that a fishing expedition. The Defense would argue that the Senate is only entitled to the evidence to prove or disprove the facts alleged, and since the client admits to the facts, the Prosecution doesn’t need any more evidence.)
That would give the GOP Senators an excuse to acquit on the obstruction charge.
The Defense then argues that Trump used poor judgement, but poor judgement is not a reason to remove the President. The defense could say yes, he talks like a gangster but that’s his style.
This would allow the Senators to acquit while admitting Trump made a mistake. The Senators could walk a middle line.
The Defense tries to get past the trial as quickly as possible. Trump would campaign by saying that he admitted to poor judgement to get them off his back, but look at how much he’s done for America. He wouldn’t lose any support and by November, people would forget.
I’m sure that Trump would never agree to that. He’s too crazy.
I’m also sure that he’s calling all the shots, and his lawyers are doing his bidding.
Of course, in criminal court a second defense is appropriate: The insanity defense. Argue that Trump honestly and genuinely doesn’t have the capacity to know that what he did was wrong. This doesn’t work well, though, as a reason not to remove a president.
