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.