Impeachment 3: The MF Has Been Impeached! The Trial Has Begun!

[fraurosena]

Trump picks Fox News lawyers Alan Dershowitz and Ken Starr to defend him during impeachment

Quote

President Donald Trump has added some new names to his legal defense team for his impeachment trial — and all of them are frequent Fox News contributors.

According to CNN’s Kaitlan Collins, “Ken Starr, Alan Dershowitz and Robert Ray are all expected to join President Trump’s legal team” ahead of his Senate trial.

According to Collins, Dershowitz is expected to speak before the United States Senate “to address the constitutional arguments against impeachment and removal.”

Starr is best known for serving as the special prosecutor whose report led to the impeachment of former President Bill Clinton in the 1990s. Dershowitz, meanwhile, has become infamous in recent months for his past work representing accused billionaire child sex trafficker Jeffrey Epstein, who was a longtime friend of both Clinton and Trump.

All three of the men tapped by the president regularly offer legal analysis on Fox News and they have all claimed that the case against the president does not meet the threshold for removing him from office.

 

[GreyhoundFan]

No big surprise: "Impeachment trial live updates: Trump expands legal team to include Alan Dershowtiz, Kenneth Starr and others"

Quote

Trump has expanded his legal team to include Harvard emeritus law professor Alan Dershowitz, former Florida attorney general Pam Bondi and former independent counsels Kenneth W. Starr and Robert Ray.

In an interview with The Washington Post, Dershowitz said he would present arguments at the Senate trial that obstruction of Congress and abuse of power do not reach the constitutional standard to impeach a president for high crimes and misdemeanors.

Starr and Ray, who investigated President Bill Clinton, are also joining the team, as well as Bondi, who had been helping Trump with messaging during the impeachment proceedings.

Trump wanted Dershowitz and Bondi on the team because he thinks they are talented on TV and convincing, a White House official familiar with the selections said. Starr, he thinks, gives him credence because of his role in the Clinton impeachment.

Trump’s team is being led by White House counsel Pat Cipollone and also includes Jay Sekulow, a personal lawyer to the president,

Sekulow confirmed the new members in a statement.

“Very pleased that Pam Bondi, Alan Dershowitz, Ken Starr and Robert Ray will be part of our team,” he said.

In the interview with The Post, Dershowitz said that “obstruction of Congress and abuse of power” — the two charges the House has brought against Trump — do not amount to “high crimes and misdemeanors.”

Dershowitz said he was participating on Trump’s legal team “to defend the integrity of the Constitution and to prevent the creation of a dangerous constitutional precedent.”

Dershowitz said the president asked him to make the case and that he had coordinated with Trump’s legal team.

“The president asked me to present my independent constitutional arguments in my books and my articles to the Senate. My argument is going to be directed at the constitutional criteria and why they haven’t been met in this case.”

,,,

 

Edited to add: @fraurosena -- JINX!!

[GreyhoundFan]

"Hannity previews Trump’s final defense: So what if he’s guilty?"

Spoiler

It has long been obvious that Republicans would ultimately converge on this final defense of President Trump: Even if he did everything he has been accused of doing, and perhaps a lot more that we don’t know about, it’s absolutely fine!

We now have a particularly ugly preview of what this defense may look like, as Trump’s Senate trial gets underway. On Sean Hannity’s Thursday night show, former Republican National Committee chair Reince Priebus said:

Sometimes the best defense is the ‘so what’ defense. If everything the Democrats said is true, it’s still not impeachable. If everything Lev Parnas said is true, it’s still not impeachable. That’s what this is about.

Hannity endorsed the argument. Parnas is the former accomplice of Trump lawyer Rudolph W. Giuliani who just revealed explosive details about Trump’s scheme to extort Ukraine into doing his dirty political deeds.

The Hannity segment is a fog machine of disinformation and incoherence. But the whole thing is must-watch TV. It features arguments that set up the claim that there’s nothing wrong with anything Trump did. Those will be key to his defense — and to justifying making the trial as much of a coverup as possible.

The ‘so what’ defense

Central to the “so what” defense is the idea that Trump was 100 percent correct in pressing Ukrainian President Volodymyr Zelensky to announce an investigation into then-Vice President Joe Biden’s ousting of a Ukrainian prosecutor — because that was, as Trump tells it, corrupt.

Trump constantly says this. His call with Zelensky was “PERFECT.” He has claimed an “obligation” to look into the Bidens’ “corruption.” He openly told reporters he wanted Zelensky to announce “a major investigation of the Bidens.”

On “Hannity,” it was treated as a given that Biden and his son Hunter acted corruptly. In demanding an investigation, Hannity said, Trump carried out his “duty.” This justified the withholding of military aid and justifies calling Hunter at Trump’s trial.

“Hunter Biden is needed to test what this case is all about," Priebus told Hannity, who agreed.

The narrative undergirding this — that Joe Biden pushed for the ouster of a prosecutor investigating Ukrainian company Burisma to protect Hunter Biden, who sat on the board — is entirely fabricated. The prosecutor was not sufficiently combating corruption; the prosecutor’s removal was U.S. policy, backed by international institutions; the Burisma investigation was dormant at the time; Hunter Biden’s role was irrelevant. Even if you question Hunter Biden’s wisdom, the narrative about Joe Biden is still an invention.

But the self-assumed power to transform lies into truths through sheer repetition, and through the ability to deceive millions into believing them, is the key here. It’s the lifeblood of the so-what defense.

One side wants real witnesses. The other doesn’t.

In the real world, Hunter Biden has zero direct knowledge of the conduct for which Trump was impeached. But the demand to hear from him can, through disinformation, be placed on a plane of equivalence with the Democratic demand for former national security adviser John Bolton and acting White House chief of staff Mick Mulvaney, who actually can testify directly to Trump’s motives in freezing military aid.

The game is this: Testimony from the corrupt Bidens is necessary to show Trump was right to be concerned about corruption, and thus to withhold military aid!

So if Republicans muster 51 GOP votes for no witnesses, as Senate Majority Leader Mitch McConnell hopes they will, the spin will be that this was a “fair” outcome, because we didn’t hear from witnesses on either side. The so-what defense flows into the claim that we didn’t hear from witnesses who could show Trump acted correctly all along. Neither side got its way!

What’s truly perverse here is that if Trump did nothing wrong, then no one could speak to that more forcefully than the witnesses Democrats want to hear from, and who Trump and McConnell desperately do not. If withholding the aid was correct on the merits, why not hear from those directly involved in that decision?

The answer is that Trump and McConnell know Trump did engage in profoundly corrupt, impeachable conduct. Trump used the power of his office — and the conditioning of official acts, including withholding hundreds of millions in appropriated military aid from a vulnerable ally — to strong-arm that ally into manufacturing disinformation to corrupt the 2020 election on his behalf.

Trump is corrupt, and Joe Biden is not

Meanwhile, Parnas has now claimed that Giuliani, taking direction from Trump, directly ordered the message conveyed to Ukraine that the military aid was conditioned on doing Trump’s bidding.

Priebus says that even if what Parnas claims is true: “So what? Because the Bidens were corrupt!"

In fact, nothing the Bidens did or did not do can render Trump’s conduct defensible. A nonpartisan government watchdog has concluded that withholding the aid was illegal. It may amount to a criminal conspiracy to solicit a bribe from Ukraine.

And the Biden narrative that justifies the “so what if he did it” defense just is made up: Trump cannot make it true, which leaves only his corrupt motive — getting a foreign ally to smear a 2020 rival — behind.

The so-what defense relies on neutral media portraying what’s to come as “partisan combat,” without clearly conveying that one side’s narrative has been entirely fabricated for purely instrumental purposes and also that that side has zero interest in learning the full truth about what actually did happen.

But as Sean Illing notes, we can choose a world in which facts matter. In such a world, the two sides’ arguments cannot be sanitized into equivalence with phrases like “partisan combat.”

In such a world, the “so what” defense must neutrally be described as a “so what if he’s guilty” defense.

Biden did not engage in corruption in Ukraine. Trump actually did do the things he’s accused of, not out of defensible motives but out of profoundly corrupt ones.

If Republicans converge on the so-what defense, their merger with Trump’s actual, unvarnished position — that he has the absolute authority to abuse his power in any manner he sees fit — will be complete.

 

[fraurosena]

1 hour ago, GreyhoundFan said:

If Republicans converge on the so-what defense, their merger with Trump’s actual, unvarnished position — that he has the absolute authority to abuse his power in any manner he sees fit — will be complete.

Sadly, I think this is precisely what is going to happen.

It's sad, because the Republican Party of old, a party that held conservative political views that differed from the Democrats, but that still had the same core American values, has completely vanished. It has been usurped by politicians that hold being in power as the absolute and ultimate goal. Because being in power means unbridled self-enrichment. These people don't care about the country. They don't care about the people. They care only for themselves. An autocratic dictatorship fits their needs perfectly. 

On the other hand, this impeachment trial is going to show them up for the cowardly and corrupt cheats that they really are. Their egregious conduct, their eventual acquittal of Trump, will serve to galvanise the country. The elections in November will show a tidal wave of voters sweeping the polls, sweeping these self-serving corrupt hacks out of office that the'll never get the chance to rule again. 

New parties will emerge. Perhaps, in the future, the Democratic Party will break up into the Progressives and the Moderates. And maybe a new Conservative party will come into being.

But the Republican Party is gone, and it will never return.

[fraurosena]

Not that MoscowMitch is going to care. 

 

[fraurosena]

We all know that Trump's opinions change depending on what he needs or wants. Here's a current example.

 

Oh! This could lead to... the Dems also having witnesses. Just put Lev Parnas on the impeachment managers team, for example.  

 

[neurogirl]

2 hours ago, fraurosena said:

The elections in November will show a tidal wave of voters sweeping the polls, sweeping these self-serving corrupt hacks out of office that the'll never get the chance to rule again. 

New parties will emerge. Perhaps, in the future, the Democratic Party will break up into the Progressives and the Moderates. And maybe a new Conservative party will come into being.

But the Republican Party is gone, and it will never return.

I want to believe this. I really do. But that's what we all thought when the choice was between Clinton (flawed, to be fair) and F*ing Donald f*ing Trump. Who in their right mind would vote for him? Turns out, a ton of people. A ton of people who seem normal and moral. I watched the polls come, disbelievingly, on election day 2016, left work early (I'm in CA) because I was practically shaking with anxiety, and watched that entire night as this racist/sexist/xenophobic/idiotic bully was voted in, with all of Congress turning red, and I didn't know what to do.

Now I'm more informed, I donate to people and causes, but it's hard to still be hopeful. And between the electoral college, and gerrymandering, and changes to voting laws in Southern states, there is a very real structural disadvantage that Democrats have - for the presidency and for Congress/races within states.

I don't think I'll be able to fully exhale until the nightmare is over. So I hope you're right. And God do I hope with everything that it's in 2020. But I'm not letting out that exhale yet. 

 

(sorry to be super down - You are right that Clinton got more votes. That Democrats have a lot of support from a lot of people. I'm still going to vote, and get everyone I know to vote, and try to inform/motivate people as much as possible. We CAN win! And I hope your prediction comes true.)

[GreyhoundFan]

 

[Xan]

21 hours ago, neurogirl said:

I want to believe this. I really do. But that's what we all thought when the choice was between Clinton (flawed, to be fair) and F*ing Donald f*ing Trump. Who in their right mind would vote for him? Turns out, a ton of people. A ton of people who seem normal and moral. I watched the polls come, disbelievingly, on election day 2016, left work early (I'm in CA) because I was practically shaking with anxiety, and watched that entire night as this racist/sexist/xenophobic/idiotic bully was voted in, with all of Congress turning red, and I didn't know what to do.

Maybe I lean towards paranoid but I was suspicious when the exit polls were so different from the results in some areas.  I still think votes might have been changed.  I know that we have a lot of ill-informed voters but I still don't believe he won the vote legally.

And, since we haven't really secured our voting systems, it might happen again.  Putin's reach is long.

[church_of_dog]

I am only halfway through this book but the implications presented in it are pretty mindblowing.  Both about the 2016 election and the potential for 2020.

 

https://www.amazon.com/Mindf-Cambridge-Analytica-Break-America/dp/1984854631

Edited January 18, 2020 by church_of_dog

[GreyhoundFan]

From Dana Milbank: "No crime? No dice. Trump needs to sing a new tune."

Spoiler

The impeachment of President Trump now has a soundtrack.

In response to Trump’s claim that he doesn’t know Lev Parnas, the now-indicted crony of Rudy Giuliani, Parnas’s lawyer issued a musical montage this week of Parnas in various poses with Trump, three of Trump’s children and son-in-law Jared Kushner. The background music: “We Are Family.”

Trump continued his denials Thursday, claiming “I don’t know him at all,” “I know nothing about him” and “I don’t believe I’ve ever spoken with him.”

Out came a new video from the lawyer, this one showing Parnas chatting with Trump at a reception and apparently introducing people to him — set to Janet Jackson’s “Together Again”:

Everywhere I go

Every smile I see

I know you are there

Smilin’ back at me

"Every time he says it, I’ll show them another picture,” Parnas told CNN.

Clearly, Trump needs to respond with his own musical message to Parnas. May I suggest the Dan Hicks oldie “How Can I Miss You When You Won’t Go Away?”

For months, Trump and his defenders kept singing a refrain: “There was no crime,” as Trump put it, and many variations (“not even a little tiny crime”; “No crime!”). Republican lawmakers decried the absence of a statutory crime, as did Ken Starr, who, along with O.J. Simpson lawyer Alan Dershowitz, successfully auditioned on Fox News to represent Trump in the impeachment trial.

But after this week, 2020’s “There was no crime” is beginning to sound as convincing as 1973’s “I am not a crook.”

Parnas alleged (and furnished some evidence of) the surveillance of a U.S. ambassador; an attempt to solicit a bribe; cancellation of a vice-presidential visit as part of the pressure campaign; efforts to secure a visa for a corrupt official; and close attention by Trump himself.

Simultaneously, the Government Accountability Office issued a legal opinion that Trump’s budget office violated the Impoundment Control Act when it withheld Ukraine military aid — and stonewalled the GAO at a level of “constitutional significance.”

The two came from opposite ends of the credibility spectrum: a shadowy figure under indictment and the nonpartisan GAO. But both identified Nixonian ways in which Trump, or those representing him, broke the law. The 1974 impoundment law was enacted to avoid a repeat of Richard Nixon’s constitutional abuses, and the accounts of Giuliani’s street thugs in Kyiv are reminiscent of Nixon’s plumbers and burglars.

Yet Trump and his mouthpieces denied all — and set out to dismantle the credibility of Parnas and the GAO alike.

“The GOA got it exactly backwards,” Trump tweeted Friday morning, sharing something he heard on Fox News. (He probably meant the GAO, not the Indian state of Goa.)

Sen. Richard C. Shelby (R-Ala.) suggested a political motive at the GAO: “I think they shouldn’t be deciding who broke the law.”

That’s like saying the Securities and Exchange Commission shouldn’t decide who broke securities law; the impoundment law requires the comptroller general (the GAO’s top official) to make such judgments.

To distance himself from Parnas and fellow Giuliani sidekick Igor Fruman, Trump simply pretended that “I don’t know those gentlemen."

This has been a pattern throughout the impeachment saga. Marie Yovanovitch, the ambassador Trump removed? “Really don’t know her,” he said. Bill Taylor, the man Trump sent to replace her? “I don’t know who Taylor is.”

Gordon Sondland, the donor Trump picked as ambassador to the European Union? “I hardly know the gentleman.” Kurt Volker, another ambassador in the scandal. “Don’t know him.” Same with State Department official George Kent, vice-presidential aide Jennifer Williams and Army Lt. Col. Alexander Vindman.

Selective amnesia has helped Trump through previous scandals. His convicted former personal lawyer, Michael Cohen, convicted former campaign chief, Paul Manafort, and fallen national security adviser, Michael Flynn, all became distant acquaintances in Trump’s retelling. Same with other figures in the Russia inquiry, such as Carter Page, George Papadopoulos, Felix Sater, Jim Comey and even a man he once said he knew “very well,” Vladimir Putin: “I don’t know him.”

But that defense has met its end with Parnas’s plentiful collection of photos and videos of himself with Trump officials and congressional Republicans. Trump’s “no-crime” defense has likewise become untenable with the GAO ruling and Parnas’s allegations, atop a growing pile of misdeeds related to Ukraine, Stormy Daniels, Hatch Act violations, potential obstruction of special counsel Robert Mueller’s probe, emoluments and more.

Perhaps Trump could set this montage of misbehavior to music, Parnas-style. For this, I suggest some Warren Zevon:

I went home with the waitress

The way I always do

How was I to know

She was with the Russians, too? …

Now I’m hiding in Honduras

I’m a desperate man

Send lawyers, guns and money

The s--- has hit the fan.

 

 

[GreyhoundFan]

The official brief was filed today: "House Democrats say Senate must ‘eliminate the threat that the President poses to America’s national security’"

Spoiler

The House Democratic managers argue the Senate must “eliminate the threat that the President poses to America’s national security” in the 111-page legal brief they filed Saturday. The brief lays out their impeachment case against President Trump.

With opening arguments in the Senate trial to begin Wednesday afternoon, the seven House managers had until 5 p.m. Saturday to file their brief describing why Trump should be convicted and removed from office. The White House defense team has until noon Monday to file its argument why he should be acquited.

The House legal filing reiterates the findings of the House Intelligence and Judiciary panels, which, after hearing from witnesses and experts, settled on charging Trump last month with abuse of power and obstruction of Congress.

“The evidence overwhelmingly establishes that he is guilty of both,” the managers wrote in the brief. “The only remaining question is whether the members of the Senate will accept and carry out the responsibility placed on them by the Framers of our Constitution and their constitutional Oaths.”

Trump’s legal team released a seven-page response to the charges against Trump, which it filed shortly after the House made its brief public, dismissing the case as a “dangerous attack on the right of the American people to freely choose their president.”

Echoing the months-long criticism from Trump and his allies of the investigation, the White House said the charges were the result of a “lawless process” and assailed House Democrats for a “transparently political act.”

In the White House response, lawyers Jay Sekulow and Pat A. Cipollone said there was no basis for either article of impeachment. They argued that Trump did nothing wrong in his dealings with Ukraine and his release of a rought transcript of the July 25 call was “unprecedented transparency.”

“The articles of impeachment violate the Constitution. They are defective in their entirety,” the White House said.

The Democrats’ brief — which the House framed as an explanation of “why the Senate should convict and remove President Trump from office, and permanently bar him from government service” — reiterates and summarizes arguments that Democrats have put forth for months: that Trump’s alleged effort to trade nearly $400 million in military aid and a coveted White House meeting for Ukrainian President Volodymyr Zelesnky for politically motivated investigations represents the height of constitutional malfeasance.

The Ukraine plot, the House managers argue, was compounded by Trump’s effort to obstruct the congressional probe to uncover it in what they portray as an effort to put off any consequences until after his re-election campaign.

“If the President could both avoid accountability under the criminal laws and preclude an effective impeachment investigation, he would truly be above the law,” they wrote. “But that is what President Trump has attempted to do, and why President Trump’s conduct is the Framers’ worst nightmare.”

The meat of the 111-page filing is a constitutional argument for Trump’s conviction and removal, one that frequently appeals to the nation’s founding fathers and their warnings about foreign influence on domestic matters.

“The Framers therefore would have considered a President’s attempt to corrupt America’s democratic processes by demanding political favors from foreign powers to be a singularly pernicious act,” the managers write, adding that “they would have viewed a President’s efforts to encourage foreign election interference as all the more dangerous where, as here, those efforts are part of an ongoing pattern of misconduct for which the President is unrepentant.”

Most of the brief, however, is a recitation of key “material facts” gathered in the four-month House investigation, citing the dozens of depositions and hearings the investigating committees conducted in from October into December but also media reports about Trump’s comments and actions relevant to the Ukraine affair.

The impeachment inquiry after an intelligence agency whistleblower reported the July 25 phone call between Trump and Ukrainian President Voldodmyr Zelensky in which Trump asked Zelensky to do him a “favor” and investigation former vice president Joe Biden, and his son, Hunter Biden.

 

[GreyhoundFan]

"George Conway: Why Trump had to hire this legal odd couple"

Quote

This is what happens when you don’t pay your legal bills.

President Trump, whose businesses and now campaign have left a long trail of unpaid bills behind them, has never discriminated when it comes to stiffing people who work for him. That includes lawyers — which is part of the reason he found the need to make some curious last-minute tweaks to his team, announcing the addition of the legal odd couple of Alan Dershowitz and Kenneth W. Starr.

The president has consistently encountered difficulty in hiring good lawyers to defend him. In 2017, after Robert S. Mueller III became special counsel, Trump couldn’t find a high-end law firm that would take him as a client. His reputation for nonpayment preceded him: One major Manhattan firm I know had once been forced to eat bills for millions in bond work it once did for Trump. No doubt other members of the legal community knew of other examples.

Of course, being cheap wasn’t the only reason Trump struck out among the nation’s legal elite. There was the fact that he would be an erratic client who’d never take reasonable direction — direction as in shut up and stop tweeting. Firms also understood that taking on Trump would kill their recruiting efforts: Top law students of varying political stripes who might be willing, even eager, to join a firm that provides pro bono representation to murderers on death row, want nothing to do with Trump.

That left Trump to be personally defended in the Mueller investigation by a random patchwork of counsel, including Jay Sekulow, a lawyer specializing in religious liberty cases, and John Dowd, a Washington solo practitioner who, according to Bob Woodward, viewed Trump as a “f---ing liar.” (Dowd denies that.) Last but not least, Trump had the assistance of Rudolph W. Giuliani — who has done more than anyone other than Trump himself to get Trump impeached.

Contrast that unimpressive crew with the team assembled by President Bill Clinton, who had not one, but two, top-notch law firms defending him: global powerhouse Skadden Arps, with heavy-hitter Bob Bennett, to handle the Paula Jones case; and the elite Washington defense firm, Williams & Connolly, led by the brilliant David Kendall, to handle the Whitewater investigation, its Monica Lewinsky spinoff and impeachment.

Precisely because he never had a defense team truly suited for the task at hand, Trump found the need now to add to the mix. But the mix still makes no sense. On the team, as of Friday, are the legal odd couple of Harvard Law School professor emeritus Dershowitz and former federal appeals court judge Starr.

It’s hard to see how either could help.

Dershowitz may be a genius in some ways, but he’s not necessarily the advocate you want on your side. Judges have told me they find him condescending in manner and tone — not the approach you want before a court consisting of 100 U.S. senators. And he’s wont to make off-the-wall arguments. As his Harvard colleague Professor Laurence Tribe has put it, Dershowitz “revels in taking positions that ultimately are not just controversial but pretty close to indefensible.” Dershowitz’s recent assertion that the Supreme Court could order the Senate not to conduct an impeachment trial illustrates the point. Not only is that claim indefensible — it’s also ridiculous.

And then there’s Starr. I know and like Starr, but I can’t comprehend what he’s doing here. He’s best known as the independent counsel whose investigation led to the impeachment of Clinton. That’s hardly helpful for Trump, because Clinton was a piker compared with Trump.

Clinton’s core offense was to obstruct a private civil action about pre-presidential conduct and cover up sexual misconduct — none of which had involved abuse of presidential power. From a constitutional standpoint, that’s a trifle compared with extorting a foreign nation by cutting off federal military funds in an effort to interfere with an upcoming U.S. presidential election.

As if that were not enough, in the Clinton case, Starr argued that Clinton had committed an impeachable offense by blocking witness testimony and documents. Oops.

Any litigator will tell you that adding to your legal team on the eve of trial most likely will not produce better lawyering but, rather, chaos. In that sense, at least, Trump will be getting the representation he deserves.

 

[GreyhoundFan]

From Laurence Tribe: "Trump’s lawyers shouldn’t be allowed to use bogus legal arguments on impeachment"

Spoiler

Laurence H. Tribe is the Carl M. Loeb University Professor of Constitutional Law at Harvard and the co-author, most recently, of “To End a Presidency: The Power of Impeachment.” His Twitter handle is @tribelaw.

The president’s lawyers have made the sweeping assertion that the articles of impeachment against President Trump must be dismissed because they fail to allege that he committed a crime — and are, therefore, as they said in a filing with the Senate, “constitutionally invalid on their face.”

Another of his lawyers, my former Harvard Law School colleague Alan Dershowitz, claiming to represent the Constitution rather than the president as such, makes the backup argument that the articles must be dismissed because neither abuse of power nor obstruction of Congress can count as impeachable offenses.

Both of these arguments are baseless. Senators weighing the articles of impeachment shouldn’t think that they offer an excuse for not performing their constitutional duty.

The argument that only criminal offenses are impeachable has died a thousand deaths in the writings of all the experts on the subject, but it staggers on like a vengeful zombie. In fact, there is no evidence that the phrase “high Crimes and Misdemeanors” was understood in the 1780s to mean indictable crimes.

On the contrary, with virtually no federal criminal law in place when the Constitution was written in 1787, any such understanding would have been inconceivable. Moreover, on July 20, 1787, Edmund Randolph, Virginia’s governor, urged the inclusion of an impeachment power specifically because the “Executive will have great opportunitys of abusing his power.” Even more famously, Alexander Hamilton in Federalist 65 defined “high crimes and misdemeanors” as “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”

Any number of such violations of the public trust — such as working with foreign governments in ways that make the president beholden to their leaders, or cooperating with those governments to bolster the president’s reelection — clearly must be impeachable even though they might violate no criminal law and indeed no federal statute at all.

The related suggestion that, even if some noncriminal offenses might be impeachable, “abuse of power” is not among them is particularly strange. No serious constitutional scholar has ever agreed with it. The suggestion turns the impeachment power on its head.

The logic of impeachment as applied to the presidency is that the president has unique authority conferred by Article II. If he abuses that authority for personal advantage, financial or political, he injures the country as a whole. That is precisely why the framers rejected the idea of relying solely on an election to remove an abusive president from office. Indeed, waiting for the next election is an option that is obviously insufficient when the abuse of power is directed at cheating in that very election.

Justice Joseph Story wrote in 1833 that there are “many” impeachable offenses, none of which is “alluded to in our statute book,” because the abuses of power that constitute “political offences” are “of so various and complex a character, so utterly incapable of being defined, or classified, that the task” of enumerating them all through “positive legislation would be impracticable.”

As if to match one great justice with another, Dershowitz on Sunday cited Justice Benjamin Curtis, a dissenter from the infamous Dred Scott decision. Curtis, after stepping down from the court, represented President Andrew Johnson in the 1868 impeachment trial and, Dershowitz claimed, prevailed by insisting that abuse of power is not an impeachable offense.

That is false. They actually lost a Senate majority (and avoided by a single vote the supermajority needed to remove Johnson) only because one senator appears to have been bribed to vote for the president. And, so far as the arguments themselves were concerned, Dershowitz is also misrepresenting. The fact is that Curtis, in his opening statement representing the president, and Attorney General Henry Stanbery, in his closing statement, insisted both that Johnson had broken no valid law and that he had not abused his presidential powers in any way.

They objected to impeaching Johnson on the basis of his unsuccessful attempts to fire his secretary of war in violation of the Tenure of Office Act, arguing that Johnson hadn’t actually violated the act and that in any event was within his rights to deem it unconstitutional, as it ultimately was held to be. They objected to impeaching Johnson for the manner of his “executive administration.” They objected to impeaching him for having disgraced the office through his outlandish insults to members of Congress, arguing that doing so would undermine the “precious right … of free speech.”

But, far from viewing “abuse of power” as unimpeachable, the defense team in Stanbery’s closing took the opposite tack, saying of Johnson that he never misused “public money” or injured any “public officer” or “appropriated the public funds … unlawfully to his own use” but, rather, “stood firm as a rock against all temptation to abuse his own powers or to exercise those which were not conferred upon him.”

The president is entitled to robust legal representation. But his lawyers should not be allowed to use bogus legal arguments to mislead the American public or the senators weighing his fate.

 

[GreyhoundFan]

"Trump would never go for a plea bargain, so it looks like jury nullification is his only option"

Spoiler

When a defendant is caught red-handed, with both the law and the facts against him, he has only two choices: a plea bargain or jury nullification. In President Trump’s impeachment case, the equivalent of a plea bargain would mean admitting that he did something wrong in pressing Ukraine to dig for dirt on Joe Biden, and profusely apologizing while arguing that it’s up to the voters to decide if his actions warrant removal from office.

Given that Trump is congenitally incapable of admitting error, the first option has been foreclosed. Indeed, on Thursday he tweeted, “I JUST GOT IMPEACHED FOR MAKING A PERFECT PHONE CALL!” He is thus left with no choice but option B: to convince the jury — in this case the Republican-run Senate — to acquit him despite the overwhelming evidence of his guilt.

That helps to explain his choice of lawyers, which includes two members of the legal team that defended wealthy sex offender Jeffrey Epstein: Kenneth W. Starr and Alan Dershowitz. No one would hire them to pursue a substantive defense, given all the baggage they carry.

As the overzealous Whitewater independent counsel, Starr once upon a time demanded that President Bill Clinton be impeached for lying about sex and, in the course of his investigation, interviewed everyone from Monica Lewinsky’s hairdresser to White House window washers. Starr’s presence will lead inevitably to charges of double standards if he is forced to argue that the far more serious accusations against Trump should be dismissed without even hearing from any of the relevant witnesses.

Dershowitz, meanwhile, is a notorious attention-seeker best known for representing defendants whose guilt is hardly in doubt, most prominently O.J. Simpson.

Trump hired Starr and Dershowitz not because of their legal skills but because of their television skills — which is where the court of public opinion is convened.

The very first filing by Trump’s lawyers makes clear that they have no interest in a substantive defense. The statement, filed with the Senate on Saturday, reads like a six-page transcription of one of Trump’s rally rants, beginning with the untrue assertion that “this is a brazen and unlawful attempt to overturn the results of the 2016 election.” It can hardly be “unlawful” to employ a process specifically authorized by the Constitution, and impeachment cannot overturn the 2016 election; even in the unlikely event that Trump is convicted, he would be succeeded by Mike Pence, not Hillary Clinton.

The Trump filing next complains that the articles of impeachment “fail to allege any crime or violation of law whatsoever, let alone ‘high Crimes and Misdemeanors,’ as required by the Constitution.” But as the far more substantive, 111-page filing by the House impeachment managers notes, “high Crimes and Misdemeanors” need not be “criminal offenses. Rather, as Hamilton explained, impeachable offenses involve an ‘abuse or violation of some public trust.’ ” In any case, the Government Accountability Office ruled Thursday that Trump did violate the law by putting a hold on military aid that Congress had authorized.

The Trump legal filing never even bothers to note the GAO finding. It simply asserts, without any evidence, that his phone call with President Volodymyr Zelensky of Ukraine, and “all surrounding and related events, were constitutional, perfectly legal, completely appropriate, and taken in furtherance of our national interest.” But if that’s the case, why did Trump and his aides go to such great lengths to cover up his interactions with Ukraine, even storing the transcript on a highly secure computer system? And if everything Trump did was “completely appropriate,” why are the president and his senior aides so afraid to testify under penalty of perjury?

The Trump legal filing contains a ludicrously distorted version of what happened that will not be convincing to anyone who has not been brainwashed by Fox News. It notes, for example, that “the security assistance was sent … without the Ukrainian government announcing any investigations,” while ignoring that this occurred only after Congress started investigating.

The filing even includes one of Trump’s silliest attacks: the assertion that House impeachment manager Adam B. Schiff (D-Calif.) “created a fraudulent version of the July 25 call and read it to the American people at a congressional hearing, without disclosing that he was simply making it all up.” One wonders if Trump’s lawyers fought to exclude this chestnut or have they lost every scintilla of self-respect? In fact, as numerous fact checks have pointed out, Schiff wasn’t deceiving anyone. Before summarizing Trump’s phone call in his own words, he said: “Shorn of its rambling character and in not so many words, this is the essence of what the president communicates.”

The lack of a substantive defense would be a problem for Trump if he were to face an impartial jury. But there is no danger of that. He will face a jury with a Republican majority already determined to acquit him simply because of who he is: the leader of red America. Facts don’t matter. All that counts is tribal identity.

 

[GreyhoundFan]

Nancy Pelosi was on the season opener of Bill Maher's show. She did a great job:

I love the dig at #MoscowMitch

[Ozlsn]

9 hours ago, GreyhoundFan said:

The president has consistently encountered difficulty in hiring good lawyers to defend him. In 2017, after Robert S. Mueller III became special counsel, Trump couldn’t find a high-end law firm that would take him as a client. His reputation for nonpayment preceded him: One major Manhattan firm I know had once been forced to eat bills for millions in bond work it once did for Trump.

You'd think that if anyone could get their bills paid it'd be top law firms. They'd have done everyone a favour if they'd sued him and won.

Also I'm sure they would represent him - with payment up front, and a bond in place.

[fraurosena]

Interesting thread by Georegetown law professor John Mikhail that completely obliterates Dershowitz’s claim one can’t be impeached for abuse of power.

unrolled version: 

 

[fraurosena]

Rest of the thread under spoiler:

Spoiler

 

 

[fraurosena]

Biden campaign warns against media use of Trump disinformation during impeachment trial

Quote

A day before the opening of President Donald Trump's Senate impeachment trial, former Vice President Joe Biden's campaign is issuing a pre-emptive strike, sending an unusual open memo to the media warning against disinformation pushed by the president and his defenders.

The memo, first obtained by NBC News, is also a shot across the bow of Republican senators as they consider whether to entertain Trump's demands to call Hunter Biden, Joe Biden's son, as a witness in the trial.

Trump's attempts to withhold nearly $400 million in military aid to Ukraine while pressing it to investigate Joe Biden, a chief political rival, led Trump to become the third president to be impeached by the House of Representatives.

Among the issues addressed in the memo is the past targeting of Biden's attempt as vice president to sideline Viktor Shokin, a Russia-aligned Ukrainian prosecutor general, at a time when Biden's son served on the board of Burisma, an energy company in Ukraine.

Trump has been "spreading a malicious and conclusively debunked conspiracy theory" that "Biden engaged in wrongdoing when he executed official United States policy to remove a corrupt prosecutor from office," the campaign said in the memo sent by Biden's deputy campaign manager, Kate Bedingfield, and a senior adviser, Tony Blinken.

Current and former administration officials testified during the House impeachment investigation that while Hunter Biden's role on the board of Burisma presented the potential for the appearance of a conflict of interest given his father's position, Shokin's ouster was a key priority of the Obama administration and the international community.

In its first forceful pushback since impeachment proceedings began, the Biden campaign is demanding that "any media organization referencing, reporting on, or repeating these claims" from Trump and his allies "must state clearly and unambiguously that they have been discredited and debunked by authoritative sources."

The memo reflects, in part, the new political reality as proceedings go from the Democratic-led House to the Republican-led Senate, where Hunter Biden could be called as a witness.

Democrats have long insisted that any testimony Hunter Biden might give is immaterial to determining Trump's motives for withholding the aid to Ukraine. Democrats defeated multiple attempts by Republicans to seek such testimony in the House proceedings.

The Biden campaign put off creating a "war room" rapid response effort during the House proceedings, because it believed that the testimony from administration officials was a powerful enough antidote to GOP claims.

But Republicans are in the majority in the Senate, and many will "play this broken record over and over again during the Senate trial," the Biden campaign said. "It is not sufficient to say the allegations are 'unsubstantiated' or that 'no evidence has emerged to support them.' Not only is there 'no evidence' for Republicans' main argument against the Vice President — there is a mountain of evidence that actively debunks it. And it is malpractice to ignore that truth."

Among the many fact checks the campaign is highlighting anew are those from The Associated Press and The Washington Post showing that the investigation into Burisma was dormant by the time Biden sought Shokin's ouster.

Following Biden's April campaign announcement, Trump's inner circle, led by personal lawyer Rudy Giuliani, intensified efforts to pressure Ukraine to announce an investigation of the Bidens. Trump approved the same aid in 2018 with no such conditions. The Defense Department and Congress had cleared it, and Republicans, including Sen. Rob Portman of Ohio, were hailing Ukraine's new president as a reformer.

Shokin's ouster was supported by Portman; Sen. Ron Johnson, R-Wis.; the European Union; and global financial institutions, including the International Monetary Fund. Ukraine's parliament overwhelmingly voted him out.

Furthermore, Hunter Biden joined the board two years after the "corruption" at issue took place. It revolves around Burisma's owner, Mykola Zlochevsky, a multimillionaire former minister of ecology and natural resources, as well as tax violations, money-laundering and licenses given to Burisma.

In a series of interviews in May and October, the prosecutor who replaced Shokin, Yuriy Lutsenko, said he could find no evidence of wrongdoing involving the Bidens and violations of Ukrainian law, although he told NBC News that the situation did have the appearance of a "conflict of interest" for the Bidens.

Daria Kaleniuk, director of the Anti-Corruption Action Center in Ukraine, said it was "unethical" for Hunter Biden to trade on his father's governmental position by serving on Burisma's board. But Joe Biden "did the opposite" of helping Burisma by demanding the resignation of Shokin, who was a "corrupt prosecutor," she said.

 

[fraurosena]

Schiff says NSA, CIA withholding Ukraine info due to White House pressure

Quote

House Intelligence Committee Chairman Adam Schiff alleged that the NSA and CIA may be withholding documents on Ukraine from Congress due to pressure from the White House, even as the Senate prepares to move forward on the impeachment trial of President Donald Trump.

During an appearance on ABC’s “This Week,” Schiff was asked about a POLITICO report that intelligence agencies officials don’t want to testify in public during an upcoming hearing in the House Intelligence panel on global security threats, asking that the session be held in private instead. Trump slammed the intelligence chiefs one year ago for the assessment of Iran, calling them “extremely passive and naïve” on the issue.

Schiff confirmed that report, and then asserted that Ukraine-related information is being withheld from Capitol Hill. Schiff blamed the White House for the failure to turn over the information to lawmakers.

“And I'll say something even more concerning to me, and that is the intelligence community is beginning to withhold documents from Congress on the issue of Ukraine,” Schiff said. “The NSA, in particular, is withholding what are potentially relevant documents to our oversight responsibilities on Ukraine, but also withholding documents potentially relevant that the senators might want to see during the trial.”

Schiff added: “There are signs that the CIA may be on the same tragic course. We are counting on the intelligence community not only to speak truth to power, but to resist pressure from the administration to withhold information from Congress because the administration fears that they incriminate them.”

An Intelligence Committee official later said, “Both the NSA and CIA initially pledged cooperation, and it appears now that the White House has interceded before production of documents could begin.”

There were no details on what documents were being withheld or how this information may play into the Senate impeachment trial.

Schiff — who will serve as the lead House manager for Trump’s Senate trial — also criticized the first legal filing in the proceedings by the president’s defense team. That six-page document, released on Saturday night, called the House impeachment case against Trump a “brazen and unlawful attempt” to overturn the 2016 election.

But Schiff dismissed the filing as just a repackaging of the same GOP arguments from the House impeachment hearings.

“Well, it's surprising in that it really doesn't offer much new beyond the failed arguments we heard in the House,” Schiff said. “The facts aren't seriously contested.”

All seven House managers then released a statement on Sunday morning criticizing the White House filing as well.

“Rather than honestly address the evidence against him, the President’s latest filing makes the astounding claim that pressuring Ukraine to interfere in our election by announcing investigations that would damage a political opponent and advance his reelection is the President’s way of fighting corruption. It is not,” said Schiff and Democratic Reps. Jerry Nadler (N.Y.), Zoe Lofgren (Calif.), Hakeem Jeffries (N.Y.), Val Demings (Fla.), Jason Crow (Colo.), and Sylvia Garcia (Texas). 

“Rather it is corruption itself, naked, unapologetic and insidious. This is precisely why the President must be removed from office.”

 

[fraurosena]

Trump's Senate impeachment hearings will be driven by the GOP's fear

Quote

On Tuesday, the impeachment trial of President Donald John Trump will begin in the United States Senate. It ought to be a moment of pride in our constitutional order, a testament to the framers’ vision that no one, not even a president, is above the law. And as such, it also ought to be a moment of patriotic duty, when all members put the Constitution and the rule of law above party and personal interests.

But instead it’s an occasion dominated by something quite different.

Fear.

Perhaps that should come as no surprise. For it was fear that brought us to this critical juncture in American history.

Fear was what Trump used to spin up the Republican base, using stereotypes, lies and hyperbole to dismantle decades of American political discourse.

Fear of facing off against former Vice President Joe Biden was what led Trump to demand, as a price for vital military and security aid, that Ukraine help him smear Biden.

Fear drives Republican members of the Senate today. Fear is what Senate Majority Leader Mitch McConnell is acting upon as he attempts to limit the length and scope of Trump’s trial. Fear of Trump drives the actions of the spineless GOP caucus, as does fear of the truth, and fear of a partisan base to which none dare speak the truth.

Fear has, indeed, dominated Republican senators’ actions from the moment the impeachment proceedings began.

Fear prompted McConnell to float the idea of dismissing the charges against Trump. When that idea went over like a lead balloon, because even members of his own party realize how disingenuous it would appear, fear drove him the other way, toward allowing some semblance of a trial.

But McConnell is only willing to make sure the Constitution isn’t openly trampled on, because fear of a real trial still trumps all. If a trial has to happen, McConnell said, there would be no witnesses called. Not even former national security adviser John Bolton, a longtime Washington hawk, who was unceremoniously dumped in September by the White House after he reportedly resisted the Ukraine scam.

Bolton’s lawyers say he has testimony that would add to the factual record — which is what a trial would permit, and so many Republicans fear. His testimony would serve to reinforce that Trump’s amorality is a feature, not a bug, of both his personality but also his presidency.

The crosscurrents of fear are complicated. Now, several endangered Republican senators, such as Maine’s Susan Collins, fearing the wrath of centrist voters, are banding together to attempt to allow witnesses during the trial. One can assume this change of heart wasn’t the result of patriotic soul-searching or a refresher course on their oaths of office. Rather, it is the fear of tough re-election battles back home that has forced these senators to show some “independence” from both McConnell and the president.

Still, fear of Trump himself and his minions, will keep members like Collins, Cory Gardner of Colorado, Thom Tillis of North Carolina, Martha McSally of Arizona and Joni Ernst of Iowa — all of whom face tough re-election contests in the fall — from doing anything more than playing their part as mute jurors during the trial.

Nothing but fear has led the Senate’s Republican majority to shamelessly attempt to circumscribe press coverage of the trial. God forbid that Senators approach reporters during the proceedings. To ensure that they don’t have to answer tough questions, McConnell is using the Capitol Police and the Senate sergeant-at-arms to stick the press in a holding pen.

No more of the “walk and talks” that are stock and trade in the building. To keep their majority this fall, the GOP must keep the number of doe-eyed nonanswers in the hallways to a minimum.

Most troubling for the Republic, though, is that Republican senators’ fears actually boil down to a fear of the Constitution, and its prescriptions for addressing high crimes and misdemeanors committed by the president of the United States.

These men and women came to Washington, one hopes, to perform public service in support of that Constitution, and they should know in their hearts and their heads what has to happen. But their fear — fear that doing their constitutional duties will harm their personal political futures — has led them, and all of us, to this place.

These individuals have only themselves to blame for their fears. They’ve toadied to Trump since the day he took office, and in doing so, have left themselves with no room to maneuver politically.

When we look back, many Republican senators will wish they’d been driven not by fear of a bully, but by the courage of their convictions, and pride in carrying out their solemn duties. Many of them will have a long retirement to think about it. Because, hopefully, for many, these fears will bring about the very fate that so frightens them — and they’ll deserve it.

 

[formergothardite]

1 hour ago, fraurosena said:

Thom Tillis of North Carolina

I pester him on a weekly basis. He is nicknamed Timid Tillis because he is absolutely terrified of his constituents. At one point he did FB town halls live and that went poorly with him getting flustered and snapping replies, so he just gave up. He tries his best to avoid the wrath of Trump and the wrath of strongly supporting Trump, but this impeachment has put him between a rock and a hard place. 

[fraurosena]

Ouch! That's gotta sting.

Here's the (unformatted) text of the reply:

Quote

The House of Representatives, through its Managers and counsel, replies to the Answer of President Donald J. Trump as follows:

PREAMBLE

The House denies each and every allegation and defense in the Preamble to the Answer.

The American people entrusted President Trump with the extraordinary powers vested in his Office by the Constitution, powers which he swore a sacred Oath to use for the Nation’s benefit. President Trump broke that promise. He used Presidential powers to pressure a vulnerable foreign partner to interfere in our elections for his own benefit. In doing so, he jeopardized our national security and our democratic self-governance. He then used his Presidential powers to orchestrate a cover-up unprecedented in the history of our Republic: a complete and relentless blockade of the House’s constitutional power to investigate high Crimes and Misdemeanors.

President Trump maintains that the Senate cannot remove him even if the House proves every claim in the Articles of impeachment. That is a chilling assertion. It is also dead wrong. The Framers deliberately drafted a Constitution that allows the Senate to remove Presidents who, like President Trump, abuse their power to cheat in elections, betray our national security, and ignore checks and balances. That President Trump believes otherwise, and insists he is free to engage in such conduct again, only highlights the continuing threat he poses to the Nation if allowed to remain in office.

Despite President Trump’s stonewalling of the impeachment inquiry, the House amassed overwhelming evidence of his guilt. It did so through fair procedures rooted firmly in the Constitution and precedent. It extended President Trump protections equal to, or greater than, those afforded to Presidents in prior impeachment inquiries. To prevent President Trump’s obstruction from delaying justice until after the very election he seeks to corrupt, the House moved decisively to adopt the two Articles of impeachment. Still, new evidence continues to emerge, all of which confirms these charges.

Now it is the Senate’s duty to conduct a fair trial—fair for President Trump, and fair for the American people. Only if the Senate sees and hears all relevant evidence—only if it insists upon the whole truth—can it render impartial justice. That means the Senate should require the President to turn over the documents he is hiding. It should hear from witnesses, as it has done in every impeachment trial in American history; it especially should hear from witnesses the President blocked from testifying in the House. President Trump cannot have it both ways. His Answer directly disputes key facts. He must either surrender all evidence relevant to the facts he has disputed or concede the facts as charged. Otherwise, this impeachment trial will fall far short of the American system of justice.

President Trump asserts that his impeachment is a partisan “hoax.” He is wrong. The House duly approved Articles of impeachment because its Members swore Oaths to support and defend the Constitution against all threats, foreign and domestic. The House has fulfilled its constitutional duty. Now, Senators must honor their own Oaths by holding a fair trial with all relevant evidence. The Senate should place truth above faction. And it should convict the President on both Articles.

ARTICLE I

The House denies each and every allegation in the Answer to Article I that denies the acts, knowledge, intent, or wrongful conduct charged against President Trump. The House states that each and every allegation in Article I is true, and that any affirmative defenses set forth in the Answer to Article I are wholly without merit. The House further states that Article I properly alleges an impeachable offense under the Constitution, is not subject to a motion to dismiss, and should be considered and adjudicated by the Senate sitting as a Court of Impeachment.

Article I charges President Trump with Abuse of Power. The President solicited and pressured a foreign nation, Ukraine, to help him cheat in the next Presidential election by announcing two investigations: the first into an American citizen who was also a political opponent of his; the second into a baseless conspiracy theory promoted by Russia that Ukraine, not Russia, interfered in the 2016 election. President Trump sought to coerce Ukraine into making these announcements by withholding two official acts: the release of desperately needed military aid and a vital White House meeting. There is overwhelming evidence of the charges in Article I, as set forth in the 111-page brief and statement of material facts that the House submitted on January 18, 2020.

In his Answer, the President describes “several simple facts” that prove he “did nothing wrong.” This is false. President Trump cites the record of his July 25, 2019 phone call with President Volodymyr Zelensky of Ukraine. But we have read the transcript and it confirms his guilt. It shows, first and foremost, that he solicited a foreign power to announce two politically motivated investigations that would benefit him personally. It also indicates that he linked these investigations to the release of military assistance: on the call, he responded to President Zelensky’s inquiries about U.S. military support by pressing him to “do us a favor though” and pursue President Trump’s desired political investigations. Astoundingly, the Answer claims that President Trump raised the issue of “corruption” during the July 25 call, but that word appears nowhere in the record of the call, despite the urging of his national security staff. In fact, President Trump did not care at all about Ukraine; he only cared about the “big stuff” that affected him personally, specifically the Biden investigation.

President Trump also points to statements by “President Zelensky and other Ukrainian officials” denying any impropriety. Yet there is clear proof that Ukrainian officials felt pressured by President Trump and grasped the corrupt nature of his scheme. For example, a Ukrainian national security advisor stated that President Zelensky “is sensitive about Ukraine being taken seriously, not merely as an instrument in Washington domestic, reelection politics.” As experts testified in the House, President Zelensky remains critically dependent on continued United States military and diplomatic support. He has powerful incentives to avoid angering President Trump.

President Trump places great weight on two of his own statements denying a quid pro quo. These are hardly convincing. One denial the President blurted out, unprompted, to Ambassador Gordon Sondland, but only after the White House had learned about a whistleblower complaint and the Washington Post had reported the President’s corrupt scheme—in other words, after President Trump got caught. President Trump then demanded to Ambassador Sondland that Ukraine execute the very this-for-that corrupt exchange that is alleged in Article I. As to the second denial cited in the Answer, President Trump made this statement to Senator Ron Johnson also after having learned of the whistleblower complaint, while inexplicably refusing the Senator’s urgent plea to release the military aid. In any event, these self-serving false statements are contradicted by all of the other evidence. They show a cover-up and consciousness of guilt, not a credible defense for the President.

Lastly, the President notes that he met with President Zelensky at the U.N. General Assembly and released the aid without Ukraine announcing the investigations. But he did so only after he was caught red-handed. And he still has not met with President Zelensky at the White House, which Ukraine has long sought to demonstrate United States support in the face of Russian aggression.

The Answer offers an unconvincing and implausible defense against the factual allegations in Article I. The “simple facts” that it recites confirm President Trump’s guilt, not his innocence. Moreover, fairness demands that if the President wants to put the facts at issue, he must end his cover-up and provide the Senate with all of the relevant documents and testimony. He cannot deny facts established by overwhelming evidence while concealing additional relevant evidence.

The President also asserts that Article I does not state an impeachable offense. In his view, the American people are powerless to remove a President for corruptly using his Office to cheat in the next election by soliciting and coercing a foreign power to sabotage a rival and spread conspiracy theories helpful to the President. This is the argument of a monarch, with no basis in the Constitution.

Abuse of Power is an impeachable offense. The Framers made this clear, including Alexander Hamilton, James Madison, James Iredell, and Edmund Randolph. The Supreme Court has recognized as much, as did the House Judiciary Committee in President Richard Nixon’s case.

When the Framers wrote the Impeachment Clause, they aimed it squarely at abuse of office for personal gain, betrayal of the national interest through foreign entanglements, and corruption of elections. President Trump has engaged in the trifecta of constitutional misconduct warranting removal. He is the Framers’ worst nightmare come to life.

ARTICLE II

The House denies each and every allegation in the Answer to Article II that denies the acts, knowledge, intent, or wrongful conduct charged against President Trump. The House further states that each and every allegation in Article II is true, and that any affirmative defenses set forth in the Answer to Article II are wholly without merit. The House further states that Article II properly alleges an impeachable offense under the Constitution, is not subject to a motion to dismiss, and should be considered and adjudicated by the Senate sitting as a Court of Impeachment.

Article II charges President Trump with directing the categorical and indiscriminate defiance of every single subpoena served by the House in its impeachment inquiry. No President or other official in the history of the Republic has ever ordered others to defy an impeachment subpoena; Presidents Andrew Johnson, Richard Nixon, and Bill Clinton all allowed their most senior advisors to give testimony to Congressional investigators. Nor has any President or other official himself defied such a subpoena—except for President Nixon, who, like President Trump, faced an article of impeachment for Obstruction of Congress. Instead, Presidents have recognized that Congressional power is at its apex in an impeachment. As President James Polk stated: the “power of the House” in cases of impeachment “would penetrate into the most secret recesses of the Executive Departments.”

President Trump’s defenses are wrong. At his personal direction, nine officials refused subpoenas to testify and the White House, Office of Management and Budget, and Departments of State, Defense, and Energy all defied valid subpoenas for documents. The fact that President Trump caved to public pressure and released two call transcripts—which, in fact, expose his guilt—hardly amounts to “transparency” and does not mitigate his obstruction.

Nor is President Trump’s Obstruction of Congress excused by his incorrect legal arguments.

First, the impeachment inquiry was properly authorized and Congressional subpoenas do not require a vote of the full House.

Second, President Trump’s blanket and categorical defiance of the House stemmed from his unilateral decision not to “participate” in the impeachment investigation, not from any legal assertion.

Third, President Trump never actually asserted executive privilege, a limited doctrine that has never been accepted as a basis for defying impeachment subpoenas. The foreign affairs and national security setting of this impeachment does not require a different result here; it makes the President’s obstruction all the more alarming. The Framers explicitly stated that betrayal involving foreign powers is a core impeachable offense. It follows that the House is empowered to investigate such abuses, as all 17 current and former Executive Branch officials who testified about these matters recognized.

Fourth, the President’s invocation of “absolute immunity” fails because this fictional doctrine has been rejected by every court to consider it in similar circumstances; President Trump extended it far beyond any understanding by prior Presidents; and it offers no explanation for his across-the- board refusal to turn over every single document subpoenaed.

Finally, the President’s lawyers have argued in court that it is constitutionally forbidden for the House to seek judicial enforcement of its subpoenas, even as they now argue in the Senate that the House is required to seek such enforcement. Again, President Trump would have it both ways: he argues simultaneously that the House must use the courts and that it is prohibited from using the courts. This duplicity is poor camouflage for the weakness of President Trump’s legal arguments. More significantly, any judicial enforcement effort would have taken years to pursue. In granting the House the “sole Power of Impeachment,” along with the power to investigate grounds for impeachment, the Framers did not require the House to exhaust all alternative methods of obtaining evidence, especially when those alternatives would fail to deal with an immediate threat. To protect the Nation, the House had to act swiftly in addressing the clear and present danger posed by President Trump’s misconduct.

President Trump engaged in a cover-up that itself establishes his consciousness of guilt. Innocent people seek to bring the truth to light. In contrast, President Trump has acted in the way that guilty people do when they are caught and fear the facts. But the stakes here are even higher than that. In completely obstructing an investigation into his own misconduct, President Trump asserted the prerogative to nullify Congress’s impeachment power itself. He placed himself above the law and eviscerated the separation of powers. This claim evokes monarchy and despotism. It has no place in our democracy, where even the highest official must answer to Congress and the Constitution.

CONCLUSION

The House denies each and every allegation and defense in the Conclusion to the Answer.

President Trump did not engage in this corrupt conduct to uphold the Presidency or protect the right to vote. He did it to cheat in the next election and bury the evidence when he got caught. He has acted in ways that prior Presidents expressly disavowed, while injuring our national security and democracy. And he will persist in that misconduct—which he deems “perfect”—unless and until he is removed from office. The Senate should do so following a fair trial.

January 20, 2020

Respectfully submitted,
United States House of Representatives

Adam B. Schiff
Jerrold Nadler
Zoe Lofgren
Hakeem S. Jeffries
Val Butler Demings
Jason Crow
Sylvia R. Garcia

U.S. House of Representatives Managers

 

[fraurosena]

It's like the WaPo says: Democracy dies in darkness.