Trump’s legal team filed its trial brief today. It’s a better written, expanded version of the answer they filed Saturday.
Check out these two comments from the brief:
- “Trump acted properly” when he rejected all subpoenas and requests for information. (p. 37)
- “No witness with direct knowledge testified that Trump conditioned a presidential meeting on investigations.” (p. 97).
In other words, as expected, Team Trump is arguing that:
- Trump properly refused to turn over evidence and permit witnesses to testify.
- And there was insufficient evidence to support the allegations.
Let’s call that Contradiction #1
On page 13: The Brief argues that the Senate Must Decide All Questions of Law and Fact:
Then, on page 37, the Brief argues that Trump can withhold evidence from Congress.
So Congress can decide questions of law and fact without evidence? Another contradiction.
The main logical fallacy isn’t silly reasoning: It’s cherry picking. For example, the brief gives this timeline to prove that Trump withheld the Security Aid because he had questions about corruption in Ukraine, and released the aid when his issues were addressed:
But the brief omitted these items from the timeline:
- Sept 9: The House announced an investigation into a Trump-Giuliani scheme to pressure Ukraine.
- Sept 11: The White House informed Senators it was releasing the Ukraine military assistance it had been withholding.
Another example of cherrypicking the facts: The brief claims that it was perfectly appropriate that he “asked” about the Biden-Burisma affair:
But then ignores the evidence that:
- Trump wanted an “announcement” not an investigation
- There were legal channels for asking for investigations. Trump avoided the established channels.
- Trump’s henchmen conditioned a meeting and aid on such an announcement.
- Rudy Giuliani openly stated that he was pushing for the investigations because they were in the personal best interests of his client, Trump:
Notably, Trump isn’t denying that in fact, aid was withheld and he asked for the investigations. He’s arguing that
- There wasn’t evidence to support the allegation that he behaved corruptly, and
- He had the right to do everything he did.
The brief asserts that investigating Ukrainian interference in the 2016 election is in the US interests:
The brief also claims that Trump has the sole power to determine foreign policy, and says Congress has no right to inspect his motives.
In fact “executive power” doesn’t mean the president has sole power over foreign policy. The Constitution specifically says otherwise. The Constitution gives Congress the power of the purse, and the power to:
- “Declare War”
- “regulate Commerce with foreign nations”
- “define and punish Piracies and Felonies committed on the High Seas”
(Okay, that one seems dated, but you get the idea.)
The brief argues that Congress has no right to scrutinize Trump’s motives. If an action is legally permissible, nobody can question why Trump did it:
At the same time, he claims that he can only be impeached for a crime. Here’s the problem: All crimes have a mental component (mens rea). For example, bribery, as defined in the federal statutes, requires a corrupt intent. (Notice Element #6, here)
If Congress is not permitted to examine motive or intent, it is by definition impossible to impeach a president for bribery (as defined by the current federal statute).
The brief not only cherry-picks the facts, it also argues that the record isn’t enough to support a conviction. This is what’s called a sufficiency of the evidence argument, and it’s made on appeal. An appellate court looks at the lower court record to determine if there was enough evidence to support the verdict.
The problem is that happens in the Senate isn’t an appeal. It’s a trial. It makes no sense to make a sufficiency of the evidence argument before a trial.
Not only is what happens in the Senate a trial, it is the only trial. From Article I of the Constitution:
The evidence gathered by the House need only be enough to show a trial is warranted.
In yet another contradiction, the brief argues that the Senate:
- “may not rely” on the House’s deficient inquiry
- and cannot develop its own record (no “do overs”)
This works only if you disregard the “Senate has the Sole Power to Try Impeachments” part of the Constitution.
This next part here is just silly:
First, there’s cherry picking the facts (an “innocuous phone call”) and cherry-picking Constitutional history. And, um. What about a “debt ridden” President?
We find the “Adam Schiff is a liar” defense on page 105:
And what was Schiff’s lie? The citation links to a a media article in which Schiff is quoted saying that there is more than circumstantial evidence that that Trump campaign “colluded” with Russia. This isn’t even a lie. Actually, Mueller found multiple “links and/or coordination” between the Trump campaign and the Russians, but didn’t have enough evidence to charge criminal conspiracy.
If that’s the only lie they could come up with for Adam Schiff, I’m impressed with Schiff’s veracity.
More than once the brief refers to the the legal right of his advisors not to have to testify. Elsewhere Trump has called this “absolute immunity.” In fact, there exists no such thing. Just last month, a federal judge (Jackson) debunked the DOJ claims that anyone has “absolute immunity. Here’s where Judge Jackson says “Presidents are not kings”:
Disclaimer: I made no attempt to debunk all the lies in this brief. Life is short.
The central contradiction in this brief is this: If the President is indeed entitled to refuse to comply with evidence requests from Congress, and if Congress has no right to question the motives or intent of the President, what are the impeachment and removal clauses doing in the Constitution?
Did the framers just goof by including a provision that allows the Senate to put the president on trial?
The impeachment trial begins tomorrow. The order of business Tuesday is to vote on McConnell’s “resolution,” a piece of absurdity which seems to have the sole aim of keeping testimony away from the public.
It’s easy to see why McConnell wants to bury the evidence. Once witnesses appear, and Trump refuses to hand over documents, it’s harder to acquit on grounds like, “The House did a bad job.” Also, once witnesses testify, it’s harder for Trump to cherry pick the facts.
