Tomorrow the defense begins its opening arguments. If the Trial Brief submitted by Trump’s legal team is any indication, we will be seeing a lot of Bogus Defenses and hearing a lot of crazy conspiracy theories.
I was trying to figure out a way to get through it without wanting to poke my eyeballs with a fork. So I came up with an idea.
Let’s spend the next few days of the trial playing Bogus Defense Bingo. You can get your bingo card here.
If you want to know how I would defend this case, scroll to the bottom. I can think of only one non-bogus defense, but I’m sure Team Trump will not use it.
If there is a valid defense presented, 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.)
#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: The Democrats rely on hearsay and speculation
Variation: There is no direct evidence
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.
#7: The Democrats Hate Trump
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.
#8: It was SO unfair!
Variation: Trump was “deprived of due process” in the House
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: Schiff Cut Off Questions
Why it’s bogus:
- Schiff would not allow any questions that might expose the identity of the whistleblower
#10: The record amassed by the House is unreliable
Why it’s bogus:
- The cure for this is to call the witnesses and produce the documents in the trial.
#11: The Democrats just want to undo the election
Variations: The Democrats are trying to 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: 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.
#14: 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.
#15: 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.
#16: Trump had good reasons to withhold the aid
Why it’s bogus:
- There is no evidence to support this.
- There is a mountain of evidence showing that Trump did not care about anything other than an announcement that Biden was under investigation.
#17: The evidence fails to show. . .
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.
#18: Zelensky said there was no pressure
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.
#19: 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.
#20: 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.
#21: 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.
#22: Trump can claim absolute immunity
Why it’s bogus:
- Absolute immunity doesn’t exist. No court has ever recognized it, and any court that has considered Trump’s argument has rejected it.
#23: There was no crime
Why it’s bogus:
I’ve dealt with this extensively in blog posts and tweets. I may come back and add an explanation here later.
#24: The Articles are Duplicious.
Why it’s bogus:
- Each Article offer lots of evidence to support each allegation, but each contains a single allegation.
#25: 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: How I would defend this case
First, I would have my client admit to all the facts so that additional evidence wouldn’t be necessary. (The Democrats would want all the evidence to ‘see how deep the corruption goes’ but I’d call that a fishing expedition. I’d say they’re only entitled to the evidence to prove or disprove the facts they’re alleging, and since my client admits to the facts, they don’t need any evidence.)
That would give the GOP Senators an excuse to acquit on the obstruction charge.
Then I would argue that Trump used poor judgement, but poor judgement is not a reason to remove the President. I’d 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.
I’d get past the trial as quickly as possible. Trump could 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.
Originally posted on Musing about Law, Books, and Politics.
Re-posted with permission.