THE DEFENSE RESTS, Analysis of Trump's impeachment defense

 

The news for the last week and a half has been dominated by the impeachment hearings. Unfortunately, the marathon sessions have made it hard for most people to actually watch. So now that the defense has concluded their case for acquittal I’ve gone back and watched a lot of testimony and read articles discussing Trump’s defense in an attempt to understand what his defense is. Essentially you can classify the various points under three categories. First are the emotional appeals that don’t really speak to the charges themselves but aim to sway both the American public and the few swing Senators to their side. Second are the legal arguments that rather than attempt to prove Trump's innocence, argue that the charges are insufficient to impeach the President or that the House hasn’t proven its case. Finally, there are the arguments that make the case that Donald Trump is innocent and did nothing wrong. In the following paragraphs I’ll go through some of the main points the President’s lawyers have made and assess their merit. Concerning the House Manager’s case, it is essentially what I already wrote about back on November 25, you can click HERE (TRUMP, GIULIANI AND UKRAINE, Part Two, What Happened Was (view-from-space.blogspot.com) to read that article.

Much of the defense of Trump doesn’t address the charges or his guilt at all, but rather focuses on the process and the House Democrats. Trump’s defense team asserted that the process has just become too political of a process. That under the current political climate it’s impossible to have a legitimate impeachment. They went on to state that without an indictable crime it would be wrong to remove the President, especially in an election year. The point was also made that the charges don’t hold water because Trump has done more for the Ukrainians than Obama ever did. The Democrats have been out to impeach the President ever since he was elected, and they rigged the House hearings to deny the President any representation or to call his own witnesses. Not only that, but the Republicans charge that the Democrats even failed to subpoena witnesses they wanted and now expect the Senate to do the work for them.

There’s a lot of problems there. Impeachment is an inherently political process, always has been. Stating it’s too political to impeach someone is not a serious argument. Concerning the lack of a chargeable crimes, although abuse of power isn’t a specific federal violation, detailed in the articles and the accompanying House Judiciary Committee report are details of criminal activity, specifically of bribery. On top of that, it is well established that an impeachment trial is not a criminal proceeding and does not require a specific indictable offense, but rather must detail a pattern of a significant betrayal of the public’s trust. Even the Republican Constitutional expert from the House hearings Jonathan Turley has conceded this point. 

The fact that it’s an election year doesn’t give the President a pass on abusing the powers of his office and would set a terrible precedent for future Presidents. The amount of prior aid that Trump approved for Ukraine is irrelevant to the current charges. The charge isn’t that Trump was opposed to Ukrainian aid, only that he withheld it to serve his own personal interest. Concerning the House procedures, Trump and his lawyers were invited to attend the proceedings and were offered an opportunity to question witnesses on several occasions and turned down the offer each time. Republicans were able to call witnesses but were only allowed witnesses that could offer material evidence of the President’s behavior, other witnesses were denied. Although the President’s lawyers chose not to participate in the House hearings, Republican lawmakers grilled every witness, so it’s disingenuous to suggest the Republicans were shut out of the proceedings. 

Numerous subpoenas were issued, and the President declined to cooperate with all of them. Many others were officially requested to testify and again Trump blocked their appearance before the House committees. The House hearing are similar to a grand jury in a criminal trial. The point of the proceeding is to determine if charges are warranted, not to prove guilt. The prosecution isn’t obligated to call every witness and the defendant doesn’t get to put on a defense, the trial is where all the evidence needs to come out for both sides and the defense gets to put on its case. None of these arguments actually talks to Trump’s guilt or innocence on the charges, it’s all basically a distraction from the facts of the case.

Another avenue of defense along these lines is that Ukrainian President Zelensky has said he didn’t feel pressure to announce an investigation into the Bidens. The first problem with that is Zelensky wasn’t under oath when he made that statement. No one is suggesting that the Ukrainian President be called as a witness, so his statements are inadmissible. The second problem with Zelensky’s statement is he has multiple reasons to lie, not the least of which is he has a continuing need for military assistance from America. Also, admitting to being pressured by Trump would make him look weak. It's not surprising he didn’t come out and say the man he is still reliant on for assistance pressured him to help his campaign in order to receive the military aid. 

The bottom line is, Trump’s guilt is dependent on what he intended when he asked for the favor, not how Zelensky felt about it. If you offer to bribe someone, and they’re fine with being bribed, that doesn’t make it legal. You can accept that the process is too political, that no indictable charge is indicated, that the hearing in the House of Representatives was unfair, and that Zelensky didn’t feel pressured and still vote to convict if you believe the evidence supports the charges.

The next category of Trump’s defense is the legalistic arguments. You see these a lot in criminal trials when all you need to do is create a doubt in one juror's mind to get an acquittal. They’re probably less effective in an impeachment trial where the standard isn’t guilt beyond a reasonable doubt and only two-thirds majority is required to convict. Still, Trump’s legal team needs to do everything they can for their client, so here’s a rundown of this line of defense. 

The main thrust of the legalistic defense was that, even if you believe the accusations, this doesn’t rise to the level of an impeachable offense. This is just ridiculous. It’s hard to imagine a more serious charge than bribing a foreign country by withholding Congressionally appropriated military aid while they’re actively fighting a war in order to get them to help discredit your chief political rival. This is exactly the type of behavior impeachment was intended to address. 

The argument was also made that Trump was never heard directly saying that he was demanding a quid pro quo of political favors in order for Ukraine to receive the promised military aid. As a legal argument this is weak. European Union Ambassador Gordon Sondland testified that Trump personally told him to coordinate his action on Ukraine with his attorney Rudolf Giuliani and that Giuliani told him about the linkage between the public announcement of an investigation into the Bidens and the release of military aid. The only possible explanation that doesn’t involve the order coming from President Trump is Giuliani going rogue and personally directing foreign policy. Not even the defense is suggesting that. It also ignores that former National Security Director John Bolton is apparently saying that Trump did directly tell him about the quid pro quo and that he’s willing to testify. Trump’s defenders are arguing that Bolton’s statements shouldn’t be believed because they weren’t made under oath, this is despite including Zelensky’s unsworn statements in their defense. The solution is to let Bolton testify under oath.

None of the defense up to this point was intended to prove he didn’t do anything wrong, only to show that the House Managers hadn’t shown clear evidence of why President Trump should be removed from office. In a criminal trial that might be enough, however in an impeachment not being guilty isn’t enough in practical terms. He still needs to perform his duties and is looking for re-election. If people believe he’s guilty but got off because the prosecution couldn’t prove the case, it’ll be difficult for him to continue governing and likely ruin his re-election ambitions. 

So finally, the defense attempted to show not only that the defense didn’t prove guilt, but that he was in-fact innocent of the charges. The effort to prove his innocence revolves around 4 basic ideas. First, that Trump was making an honest effort to root out corruption in a country that receives hundreds of millions of dollars in U.S. assistance. Second, that the Bidens were a legitimate focus of Trump’s attention due to Joe Biden’s role in America’s Ukraine policy at a time when his son had a prominent role in the Ukrainian energy company Bursima. Adding to this legitimate concern was the fact that the former Vice President was involved in pressuring Ukraine to fire a prosecutor while Hunter Biden’s employer Bursima was linked to corruption. Next, the Ukrainians didn’t even know the money was being withheld. How can there be a quid pro quo if they weren’t aware that the aid was on hold? Lastly, the aid was released without any investigation into the Bidens. That fact alone shows the entire case is without merit. If all that were true it would be a strong case for acquittal, but not surprisingly, none of these points are supported by the facts.

Is it likely, or even plausible that Trump was just trying to protect the American taxpayers by making sure their tax dollars weren’t going to a corrupt country? In a word, no. Ukraine has had problems with corruption but President Zelensky’s election as a reformer was seen as a step in the right direction. That makes it odd that Trump chose this moment to start withholding add. Especially when you realize there are 18 countries with corruption ratings equal to or higher than Ukraine that receive at least $200 million in American aid each year that did not have a hold placed on their assistance. Even Ukraine had never had a hold on their aid in the past and President Trump didn’t seem to raise a concern about the aid at the time he signed the appropriations bill authorizing the assistance. It was only after Joe Biden entered the race that all of a sudden the President had a concern about Ukrainian corruption. It also ignores Ambassador Sondland’s testimony and the leaked Bolton manuscript that indicate that the aid was specifically linked to an investigation into the Bidens, and not corruption generally.

The next point that the Biden’s were a legitimate target of an investigation is similarly weak. Burisma has been linked to corruption, but the Ukrainian prosecutor at the time of the July 25 call between Trump and Zelensky has stated that there wasn’t any evidence of wrongdoing on Hunter Biden’s part and the corruption that they had investigated all took place before Biden joined the company. And despite the Trump defense claims to the contrary, at the time Joe Biden pressured Ukraine to fire the previous Ukrainian prosecutor, Burisma was not under investigation. The Vice President’s actions were part of a coordinated action with our NATO allies to get Ukraine to fire a corrupt prosecutor that was ignoring corruption and refusing to cooperate with international investigations. It was not something that was done in secret. Although at first glance having the son of the Vice President working for a Ukrainian company at the same time that he was heading America’s Ukrainian policy might seem suspect, but there’s never been any evidence to suggest any wrongdoing. Add the fact that Hunter Biden no longer works for Burisma, it’s difficult to find a plausible reason for holding the military assistance that is motivated by a legitimate concern and not a solely political one.

The question about when the Ukrainians became aware of the hold on aid reveals that Trump’s claim that they were unaware of the hold until late August is just flat out wrong. There has been testimony that the Ukrainians began asking questions on July 25 about the delay in the funding. In addition, the former Ukrainian Deputy Foreign Minister Olean Zerkal has said she knew by July 30 that a hold had been place on the aid but worked to keep it out of the news because they didn’t want Russia to know about it. State Department official Catherine Crox testified under oath that the Ukrainians knew in early August about the hold but couldn’t recall the exact date. Ukraine was engaged in hostilities with Russian backed rebels and were in serious need of this aid, the thought that they didn’t notice the delay is preposterous. 

Finally, it’s true the aid was released without an investigation into the Bidens. But the aid was only released after the existence of the whistle-blower complaint was released to Congress. Sworn testimony from the House investigation revealed that President Zelensky was days away from making a public announcement of an investigation on the Fareed Zakaria show on CNN when the whole scandal broke into public view. Releasing the aid after scandal became public knowledge isn’t evidence of innocence, if anything it raises additional questions about why it was held in the first place if it was only going to be released without an investigation anyways.

The House Managers laid out a clear timeline of events with strong evidence to corroborate each point. With the facts working against them, Trump’s defense tried throwing everything against the wall to see if anything stuck. With the numbers on their side, they didn’t need to actually win the argument on the facts, they just had to give the Republican Senators enough to give them cover to acquit an obviously guilty President. If you twist the facts and ignore inconvenient evidence, perhaps they did enough. Any serious desire to get to the truth would demand witness testimony to clear up any questions and give additional corroboration to the evidence already in the record. However, Mitch McConnell and most the Republicans see their job as clearing the President, not getting to the truth.