Note: During the next few weeks, I may do more than one blog post per day. Later today, for example, we will have the House trial brief and the Defense answer to the Articles. I’ll likely do Over the Cliff Notes (name given by a clever Twitter follower) for both.
Let’s talk about the difference between issues of fact and issues of law.
One option is that Trump just admits to the facts alleged. If there are no facts in dispute, there is no need for fact witnesses.
What would then remain would be a question of law: Do the facts warrant removal from office?
Here are the facts put forward so far by the House (I’ve added Parnas’s bit)
- Trump and Guiliani wanted Ukraine to announce an investigation into the Bidens.
- Shokin said he would
- Trump tried to fire Yovanovitch, but the State Department wouldn’t carry out the orders (also from Parnas)
- Team Trump launched a smear campaign to get the state department to fire her
- The smear campaign endangered her life
- After she was fired, Trump surrogates asked Zelinsky to announce the investigation
- Zelensky said he would, but then “walked it back” and didn’t
- This frustrated Trump
- To put pressure on Zelensky, Trump refused to send Pence to the inauguration
- Zelensky still wouldn’t make the announcement
- So Trump ordered security aid withheld
- Zelensky still dragged his feet, but by September was apparently willing to make the announcement
- The Whistleblower blew everything open
For more facts that emerged during the inquiry, click here.
- When Congress opened an investigation, Trump refused to cooperate, refused to turn over relevant documents, and ordered witnesses not to testify.
So far, there have basically been two parallel defenses.
Defense #1 has two parts:
- There was not enough evidence to support the above narrative and
- Trump was justified in withholding evidence.
Obviously that one is rather problematic on its face. It’s absurd to say “insufficient evidence” while you are hiding evidence.
Congressional Republicans solved the problem by blaming it on the Democrats: The House put together a “sloppy” case, so they should just throw it out.
Defense #1 lends itself to disinformation campaigns. Here’s an example, from two Republican congressmen:
The second defense is: The actions in the above narrative are not impeachable.
Most likely, Trump’s defense team will try them both, arguing in the alternative.
I suspect that Mitch McConnell prefers the first defense. We’ve already seen how the Senators can kick up dust and get behind it.
I also suspect that Trump prefers the second. I suspect Trump wants a finding that he had the legal right to do what he did, so the actions don’t warrant removal.
The second defense is consistent with the way he has lived his life: He should be able to do what he wants and the laws in his way are wrong. For more on that, see this post.
The first defense is preferred by people who don’t mind making contradictory arguments and kicking up dust—but are unwilling to completely jettison checks and balances and Congressional power.
The second defense puts the Republican Senators in a much tighter spot.
I suspect that when McConnell wanted to “coordinate” with the White House, it was because he wanted Trump to adopt the first defense.
The first defense just kicks the problem down the road, because the house can do more investigations and send it back. Kicking the problem down the road, though, is probably the best McConnell can do. Moreover, kicking the problem down the road gets harder if witnesses are allowed.
Apparently Dershowitz is planning to argue that “Abuse of Power” and “Obstruction of Congress” are not crimes, therefore, they are not impeachable and do not warrant removal from office. This is a version of #2 and requires arguing that a president can constitutionally abuse his power and obstruct Congress, which in turn obliterates checks and balances, and Congressional power.
Moreover, lots of crimes are included in factual record, so the articles simply have to be renamed to address the problem.
Amusing aside: My son tried this defense on me when he was four.
One day, one of our cats came tearing around the side of the house. Right behind him came my son. Me: I told you not to chase the cats.
Him: I wasn’t chasing the cats. I was only chasing one cat.
Me: That’s not a good defense because all I have to do is recharge the crime.
