Watching the White House put together its defense of President Trump in the impeachment trial that begins this week, one has to ask: Are they even trying?
Indeed, it reads as though it was written by a ninth-grader who saw an episode of “Law & Order” and learned just enough legal terms to throw them around incorrectly. It makes no attempt to contest the facts, instead just asserting over and over that the president is innocent and the entire impeachment is illegitimate, calling it “unlawful” and “constitutionally invalid,” with no apparent understanding of what those terms mean. The articles of impeachment, Trump’s lawyers say, “fail to allege any crime or violation of law whatsoever, let alone ‘high Crimes and Misdemeanors,’ as required by the Constitution.” They then repeat this argument multiple times throughout a screed seemingly pitched to the Fox News hosts who will spend the coming days repeating its absurd claims.
The trouble, as any historian or constitutional scholar will tell you, is that just as there are crimes the president could commit that would not be impeachable (say, shoplifting a candy bar), there has never been any requirement that impeachment can only be used for violations of criminal law. Not only were the Framers deeply concerned about the potential of the president abusing his office, at the time the Constitution was written, there was no such thing as a federal criminal code.
Trump has found the one constitutional “expert” who will take such a position, however: Harvard professor emeritus and frequent Fox News guest Alan Dershowitz, whom Trump added to his defense team last week. “Criminal-like conduct is required” in order for a president to be impeached, Dershowitz now claims, to the puzzlement of pretty much everyone who knows anything about this topic.
Since hypocrisy is something of a job requirement for working for Trump, Dershowitz is naturally on video making exactly the opposite argument in 1998. “It certainly doesn’t have to be a crime if you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty,” he said at the time.
To illustrate how foolish the White House’s argument is, let me suggest a few things the president could do that would not violate any criminal statute but that pretty much everyone in both parties would consider grounds for impeachment:
- The president states in a news conference that if Russia wants to invade Alaska, that would be fine with him. Taking the opportunity, Vladimir Putin sends a force across the Bering Sea to occupy the state; the president refuses to deploy U.S. forces to repel them, then says, “To be honest, if anyone’s got their eye on Hawaii, I’m not going to stand in your way.”
- With a legal advisory in hand from the Department of Justice saying that anti-nepotism laws do not apply to the White House staff, the president fires every last member of that staff and replaces them with members of his extended family, including making his 18-year-old nephew, whose only work experience is manning the soft-serve machine at a Dairy Queen, the national security adviser.
- The president declares that his job has become tedious and says he’ll be spending the rest of his term in the White House residence getting drunk and playing “Grand Theft Auto.”
So why is the White House falling back on this argument when it’s so plainly wrong as a matter of both law and logic? There are a number of explanations. The most obvious is that they know the president is guilty of the central charge driving the impeachment, that he abused his power by trying to coerce a foreign government to help his reelection campaign by discrediting a potential opponent. So the last thing they want to do is argue about the facts of the case, except in the most perfunctory way (“I JUST GOT IMPEACHED FOR MAKING A PERFECT PHONE CALL!” the president tweeted last week)
Another reason they might have seized on the “no crime” defense is that despite being completely wrong, it has an intuitive appeal to it. If we’re calling this phase of impeachment a “trial” and the entire process bears some resemblance to a criminal proceeding, then there ought to be a criminal violation, right?
That makes sense as long as you don’t understand the facts or the law — or are willing yourself desperately to ignore them. That describes well Trump’s allies on Fox News and the audience they speak to, which is where his entire strategy is pitched. It’s why he assembled his legal team from people he sees frequently on Fox News and why running through all his arguments about impeachment is the false claim that the entire process is illegitimate and can therefore be dismissed out of hand, with as much indignation and whining about unfair treatment as possible.
That logic is also why Republicans will do everything they can to prevent witnesses from testifying in the trial. If you’ve convinced yourself that the process is illegitimate in every way, then at the stage when Republicans have control of it, what’s wrong with turning it into a sham, then shutting it down as quickly as possible?
To return to the question with which I began, it’s not quite that the White House isn’t trying to defend Trump in a serious way. It’s that they’ve decided they don’t really have to.