Winning at any Cost

7 mins read

How you felt about yesterday’s defense presentation depends entirely on how you feel about Newt Gingrich’s “win at any cost” advice to the Republican Party.

People who think the Republicans should win at any cost were cheering for the outrageous, circular arguments. They believed each one landed a punch.

People who think the idea is to protect truth and democracy felt astonished and appalled by the hypocrisy, irony, and circular reasoning on full display during the defense arguments.

The Republican Party has reached its logical conclusion: When a party declares that it must win at any cost, eventually that party is left with no principles and no integrity. (If you’re new to my blog and you want some background on why the GOP is fighting this way, see this post.)

I started off yesterday with a blank card that looked like this:

By the end of the day, it looked like this:

If you wonder where I got the very strange #23, it is from this paragraph of the Trump Defense Trial brief:

We got #13 on Saturday, so we have a Bingo Blackout.

If here missed yesterday, here are some standout moments.

Moment of dark comedy: 

Pam Bondi railed against corruption and Kenneth Starr railed against the dangers of impeachment.

No kidding. Both of those things happened.

The climax was when Alan Dershowitz argued that even if Trump said: “No aid or White House visit unless you announce an investigation,” this would not be impeachable or grounds or removal. He threw out a bunch of reasons including “presidents often have mixed motives,” and “we shouldn’t impeach based on motives.” (Problem: there were no mixed motives here. There can be only one motive for an ‘announcement’ of an investigation into a rival.)

Dershowitz, though, gave the Republicans who want to acquit a reason. The problem: At the same time they have to conceded that it is okay with them if the president behaves this way.

Remember: The likelihood of this Senate removing Trump is very small, and always has been. The goal is to make sure, if they vote to acquit, they pay huge price in November.

Mostly, it was same-old same old: The House should have gone to court. There was no crime alleged. The evidence was insufficient. For why these are bogus, see this post.

A contradiction in in the Defense arguments:

  • Defense lawyer Robert Ray argued that a president should not be impeached for bad motives.
  • The Defense Brief states that a president’s motives should not even be scrutinized.
  • Defense lawyer Philbin argued that a president cannot be removed until a crime is proven.
  • All crimes have a mens rea (intent) element.
  • All crimes require showing a corrupt motive.
  • If you can’t impeach for bad motives or even examine a president’s motives, it’s not possible to prove a crime.

Some Absurdity:

The Trump defense pointed a finger at Hunter Biden for taking advantage of a family name and entering the corrupt Ukrainian energy industry. (What business were Giuliani and Perry and pals conducting in Ukraine?) The nerve, right?

More Absurdity: 

Trump’s lawyers either ignore or don’t see the contradiction between Bogus Defense #21 (Trump gave Ukraine more support than Obama) and Bogus Defense #15: (The Bidens are corrupt). Why, then, did Biden issue suddenly appeared in 2019? It wasn’t there in 2018 when Trump previously gave aid?

Absurdity #3: 

Philbin argued that if Congress can impeach Trump, it will destroy checks and balances between the parties. (Yes he argued this. It made no more sense at the time)

Absurdity #4:

Philbin argued that “sole power of impeachment” doesn’t mean “paramount power,” it means that the three branches have to work this all out, otherwise, Congress will have too much power. (Among other things, he ignoring the fact that Trump refused all compromise.) In making this argument, Philbin argued against impeachment by saying that “the founders expected the branches to have these conflicts… [and to] resolve their differences.”

OK, then. Why did they give Congress the power to remove the President? Did they goof?

Absurdity #5:

Defense lawyer Raskin argued that there was no evidence that Trump’s motive was political because, in fact, he wanted to disprove Mueller’s conclusions. (So that isn’t political?)

They added a form of “No Harm, No Foul”: 

Trump’s meeting with Zelensky on September 25 satisfied Zelensky’s desire for a White House meeting.

The Defense had the audacity to compare Rudy Giuliani to Clarence Darrow. For someone who has practiced criminal defense law, this was sacrilege. Next they’ll say Giuliani is another Atticus Finch.

Most startling was the willingness of these lawyers to actually lie. Starr, for example, reeled off a serious of lies about abuses of due process in the House inquiry. The fact that this came from Kenneth Starr of all people was just stunning.

We also heard lots and lots of #16, the Evidence is Inadequate while arguing that the president is entitled to conceal evidence.

Are you all ready for Day 3 of the defense?

Originally posted on Musing about Law, Books, and Politics.
Re-posted with permission.


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Teri has written novels, short stories, nonfiction for both young readers and adults, and lots of legal briefs. She is currently working on a book on disinformation to be published by Macmillan Publishers. Her political commentary has appeared on the NBC Think Blog and CNN.com. Her articles and essays have appeared in publications as diverse as Education Week, Slate Magazine, and Scope Magazine. Her short fiction has appeared in the American Literary View, The Iowa Review, and others. For twelve years she maintained a private appellate law practice limited to representing indigents on appeal from adverse rulings. She believes with the ACLU that when the rights of society's most vulnerable members are denied, everybody's rights are imperiled. She also believe with John Updike that the purpose of literature is to expand our sympathies. Teri lives with her family on the beautiful central coast in California.

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