The president’s argument comes down to the bald assertion that a president can abuse power by enlisting a foreign power to corrupt an election — a trifecta (abuse of power, betrayal of national security, election rigging) that the Framers saw as precisely the sort of conduct deserving of impeachment.
While the two aides agree with the reference from Trump’s attorneys on page 81 of their brief that the July 25 call was the most important piece of evidence, they remind us it is also the most damning. In that call, Trump, like a mob boss, makes Ukraine an offer it cannot refuse (“do us a favor though”): Trump will release aid the Congress deemed to be in our national security interest in exchange for investigating Burisma and former vice president Joe Biden. Put differently, Trump will endanger national security to get a foreign government’s help smearing an American political opponent.
Given the absence of factual evidence disputing key facts against the president, his defense boils down to the assertion that “what Trump did was okay,” one Democratic aide pointed out. Trump has attempted to use “national security as a sword” against a domestic political adversary. Now, Senate Republicans are being dragooned to approve that stunning proposition.
But Trump, his lawyers and the Republicans have made three critical errors. The first was White House counsel Pat Cipollone’s Oct. 8 letter in which the White House flatly refused to allow any witnesses to testify or documents to be produced. It was not a formal assertion of executive privilege but rather a more egregious version of obstruction that was the basis for President Richard M. Nixon’s third article of impeachment. This was blunder by Cipollone, in essence putting Trump’s obstruction in writing.
If permitted, any president could declare his impeachment unfair and hide (or destroy!) evidence. Acquittal on this article would mean that any future Republican Congress would have no recourse if, for example, a Democratic president committed treason and then covered his tracks by intimidating witnesses and/or shredding documents. It is a recipe for a totalitarian state in which the king can do whatever he deems necessary to stay in power.
Second, the Senate and Trump have been banking on a non-trial with no new witnesses or evidence. That is how they intend to spare Trump and the Senate from the humiliation of overwhelming, persuasive evidence of the president’s guilt. The problem is that Americans overwhelmingly think this is wrong.
As in prior surveys, CNN’s newest poll finds, “Nearly seven in 10 (69%) say that upcoming trial should feature testimony from new witnesses who did not testify in the House impeachment inquiry. And as Democrats in the Senate seek to persuade at least four Republican senators to join them on votes over allowing witnesses in the trial, the Republican rank and file are divided on the question: 48% say they want new witnesses, while 44% say they do not.”
To make matters worse, a significant majority of Americans already consider Trump guilty of the charges set forth in the articles. (“58% say Trump abused the power of the presidency to obtain an improper personal political benefit and 57% say it is true that he obstructed the House of Representatives in its impeachment inquiry,” the CNN poll finds.) In trying to whitewash his conduct by suppressing evidence, Trump, and by extension Republicans in the Senate, will look like they are engaged in a coverup. Trump might “win” acquittal (because Senate Republicans are spineless) and utterly lose in the court of public opinion. The more obvious the coverup, the more that 69 percent of Americans will come to see the trial as a fraud and Trump as guilty.
Third, Senate Majority Leader Mitch McConnell (R-Ky.), apparently worried that Americans will watch every minute of the historic proceedings and anxious to exonerate Trump quickly, seeks to give each side 24 hours of argument over two days. Beginning at 1 p.m. and allowing for some breaks, McConnell’s preferred schedule would result in a trial in the dead of night. Nothing smells more like a coverup than a trial at 2 a.m.
Trump and his cronies seem so certain of acquittal that they are oblivious to the consequences of their tactics: In conducting a coverup in plain sight, they convince a substantial majority of Americans that Trump is guilty as sin, and his Senate accomplices are doing his dirty work.