Even if Trump isn’t watching live from his hotel room in Davos, Switzerland, he’ll certainly at some point see highlights on cable news. Whenever he sees it, he’ll probably be pleased with the performance of the lawyers who are defending him. Trump has closely tracked on-air defenses of himself and his presidency since his inauguration, for example, reportedly evaluating his press secretaries on their ability to rebuff journalists and adhere to his talking points (back when his press secretaries actually briefed the media).
By that standard, the performances of Trump personal attorney Jay Sekulow and White House Counsel Pat Cipollone probably passed muster.
Sekulow went first, energetically making a wide range of claims about the impeachment, often using misleading or inaccurate claims. Cipollone matched Sekulow’s tone and, often, Sekulow’s arguments, often repeating his phrasing for emphasis. Each performance was indignant and dismissive; a performative expression of how ridiculous they found the whole thing.
What the performances were not was an effective defense of the issue at hand.
“I remember in the Mueller report there were discussions about — remember? Insurance policies,” Sekulow said at one point. “Insurance policy didn’t work out so well. So then we moved to other investigations. I guess you would call it reinsurance or an umbrella policy. And that didn’t work out so well. And here we are today.”
Should you not be an avid consumer of conservative media, you would be forgiven for not catching the reference. Sekulow was suggesting that the impeachment was simply an extension of an effort by members of the FBI to create a fraudulent rationale for attacking Trump in the event he won the 2016 election. That purported effort — for which no evidence has been found, including in investigations by the Justice Department inspector general — is based on a reference to an “insurance policy” in a text message sent by then-FBI agent Peter Strzok. The explanation for the message is straightforward, but it has been taken wildly out of context for years to suggest a deep state plot against the then-Republican nominee.
That Sekulow chose to include a reference to this conspiracy theory here — and it is a conspiracy theory, in the truest sense of the phrase — is remarkable. It suggests a willingness to adhere to popular rhetoric over legal argumentation from the outset of the Trump defense. It is an almost overt recognition that the driving force of the trial will be politics.
“During the proceedings that took place before the Judiciary Committee,” Sekulow said at another point, “the president was denied the right to cross-examine witnesses. The president was denied the right to access evidence. And the president was denied the right to have counsel present at hearings.”
In fact, the president was invited to participate in the Judiciary proceedings, an invitation that was eventually rebuffed by Trump’s legal team.
By Cipollone himself, in fact.
During his time at the lectern, Cipollone chose to focus on another purported rejection of Trump’s rights: the closed-door hearings that came at the outset of the House’s impeachment inquiry. Those hearings, you’ll recall, were held in a sensitive compartmented information facility, or SCIF, in the basement of the Capitol. Republicans raised a lot of ruckus about the selectiveness of attendees and their inability to call desired witnesses, arguments that Cipollone reiterated on Tuesday.
“The president was forbidden from attending. The president was not allowed to have a lawyer present,” he said. “In every other impeachment proceeding, the president has been given minimal due process. Nothing here. Not even Mr. Schiff’s Republican colleagues were allowed into the SCIF.”
We can set aside the deeply misleading phrasing, which Cipollone used multiple times, of precedent from “every other” presidential impeachment. There have been two prior impeachments and only three substantive inquiries. Precedent doesn’t mean a whole lot in that context.
His claim that Republicans weren’t allowed in, though, is obviously false. There was some performative consternation at the time about the inability of some Republicans not to attend — specifically, Republicans who didn’t sit on the committees hosting the hearings. But as The Washington Post reported, 48 Republicans did sit on those committees — about a quarter of the caucus — and many attended the hearings. What’s more, the questioning of witnesses was fairly evenly divided between the parties, even behind closed doors, as subsequently released transcripts made clear.
Both Sekulow and Cipollone dismissed the second article of impeachment, focused on obstruction of Congress, by defending the concept of executive privilege — that the president should be able to keep private sensitive conversations he or she has with staff.
“Executive privilege? Why would that matter? It matters because it’s based on the Constitution of the United States,” Sekulow said at one point. He later added that the privilege had “been utilized by presidents since our founding.”
He quoted Schiff defending the administration of Barack Obama invoking executive privilege in defense of then-Attorney General Eric H. Holder Jr., at which point Schiff noted that the idea of privilege was “backed by decades of precedent.”
Schiff is right, as Sekulow stated: It’s a decades-old privilege, but not one recognized since the founding of the country.
“Executive privilege is not in the Constitution,” Steven Schwinn, a law professor at John Marshall Law School in Chicago, told The Post last year. “It’s a creation of the Supreme Court in the United States v. Nixon case, growing out of the Watergate prosecution.”
Generally, an administration would invoke a specific privilege in response to a request for information. The Trump White House has been much broader in its invocations. As Schiff noted in his response to Trump’s lawyers, the White House hadn’t specifically invoked privilege in response to specific impeachment inquiry requests.
Trump’s lawyers often deployed a scattershot approach in their responses. (Yahoo News’s Jon Ward reported that they were caught off-guard by Schiff’s opening.) Both, for example, claimed that the decision by Democrats to hold the impeachment articles until January showed the weakness of their case. In reality, McConnell stated before the impeachment vote itself that the trial wouldn’t start until January.
“Senators in this body the last time had very wise words. They echoed the words of our founders: ‘A partisan impeachment is like stealing an election,’ ” Cipollone said at another point in his response. “And that’s exactly what we have. We have — talk about the framers’ worst nightmare! It’s a partisan impeachment that they’ve delivered to your doorstep, in an election year.”
It’s true that the impeachment vote was broadly partisan, but that’s somewhat misleading. The decline in the number of more-moderate members of the House since the impeachment of Bill Clinton in 1999 was one factor in the polarized result. Another was the GOP’s fervent insistence on hewing to the party line, specifically so that this argument could be made. (They also often ignore Rep. Justin Amash (I-Mich.), who left the Republican Party in July after expressing his opposition to Trump.)
Cipollone went on to claim that Democrats weren’t only trying to undo the 2016 election but also, in fact, attempting to rig the 2020 election by keeping Trump from appearing on the ballot this year.
It’s true that if the Senate votes to remove Trump from office, it could also vote to bar him from seeking federal office. But notice the weight of that “if”: he first has to be removed! If 20-odd Republicans have been convinced that Trump should be ousted from the White House, it seems fairly unlikely that Trump would survive a subsequent reelection bid anyway. (Cipollone’s melodramatic assertion that this had never been tried before because “no one ever thought that it would be a good idea for our country, for our children, for our grandchildren, to try to remove a president from a ballot” was a nice touch.)
Perhaps Cipollone’s most egregious claim, though, was a reiteration of allegations against Schiff himself.
He claimed that Democrats made “false allegations” about the July 25 call between Trump and Zelensky, so Trump released a rough transcript of the call. Cipollone then said that the Democrats had been forced to pivot to assertions about the first call between the two men, which occurred in April.
“So the president of the United States declassified and released that telephone call. Still nothing,” Cipollone said. “... When Mr. Schiff saw that his allegations were false — and he knew it anyway — what did he do? He went to the House and he manufactured a fraudulent version of that call. He manufactured a false version of that call. He read it to the American people and he didn’t tell them it was a complete fake.”
This isn’t accurate, in two ways. The first is that Schiff’s paraphrasing of Trump’s call with Zelensky preceded the release of the rough transcript of the April call. The second is that Schiff was explicit at the time he paraphrased the call that he was expressing “the essence of what the president communicates” and not the exact transcription.
Again, though, this claim about Schiff being caught out by the transcripts is a favorite of Trump’s, including misrepresenting the timeline of the transcript releases. Here was Cipollone, angrily denouncing Schiff’s behavior in Trump’s defense. The president’s two lawyers standing tall, demanding justice and rehashing various past Trump tweets.
What more could Trump want to see?