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TRIALS & TRIBULATIONS

Trump’s impeachment trial is either nearly over or just beginning

Texas senator Ted Cruz fields reporters' questions about the impeachment trial.
Reuters
Ted Cruz—and fellow senators—back in the center of attention.
  • Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

Washington DCPublished

Senators yesterday had an opportunity to question the prosecution and defense teams at US president Donald Trump’s impeachment trial. They seemed to be in high spirits when they entered the Senate chamber and there was more bipartisan mingling before the session began than previously.

Arizona’s freshman Democratic senator, Kyrsten Sinema, for example, who is considering acquitting Trump, huddled with Republican Susan Collins of Maine, who may want to hear from witnesses before deciding and hasn’t yet committed to toeing her party’s line. Indeed, Collins asked the session’s first question on behalf of herself and fellow potential Republican defectors Lisa Murkowski of Alaska and Mitt Romney of Utah.

With this began a back and forth between senators, House trial managers, and defense counsel. Democrats and Republicans alternated queries. The lawyers had five minutes to answer each question, or half of that for those questions directed at both the prosecution and defense.

These were the major themes that ran through the questioning and the parties’ responses.

Does an impeachable offense have to allege a statutory crime?

Trump’s defenders argue that the first article of impeachment alleged against the president—abuse of power for using public office to advance personal, political interests—isn’t an impeachable offense. They say that “high crimes and misdemeanors” in the Constitution’s impeachment clause refers to statutory violations of the kind found in the criminal code.

House managers pushed back, citing Alexander Hamilton’s 1788 essay Federalist No. 65, which explains that impeachment is designed for “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”

Based on records from the Constitutional Convention of 1787, too, it’s evident that the framers designed the impeachment clause for abuses of power, betrayal through foreign entanglements, and corruption of elections, House managers said. They called these three offenses “the ABC’s of impeachment” and accused Trump of having committed the “trifecta” when he pushed Ukraine’s president to investigate his political rival, former vice president Joe Biden, conditioning foreign aid on this alleged personal “favor.”

The prosecution also pointed out that not all crimes are impeachable offenses and vice versa. Take jaywalking, say, or defacing a post box, these are criminal violations that wouldn’t rise to the level of impeachable offenses. Likewise an abuse of public trust would be impeachable but won’t always be a criminal violation because impeachment is a constitutional and political process designed specifically to address the defects of public officers.

What if the president had mixed motives?

Collins and her posse asked the defense team what to make of Trump’s intent. They wondered whether the executive’s actions had to be entirely personally-motivated in order to find him guilty. What if he was acting, as he claims, in the public interest, but also stood to personally benefit from his efforts?

Trump says he asked for a favor from Ukraine’s leader and withheld military aid because he was concerned about Ukrainian corruption and about Europeans sharing the burden to aid this ally, justifying his requested investigation and the delay in releasing congressionally-appropriated funds. Defense counsel argued that if there was “even a smidgen” of public interest behind Trump’s decisions then he had to be acquitted. Harvard law professor Alan Dershowitz contended that “everybody has mixed motives” but “to be impeachable you’d have to discern corrupt motive.”

California representative and lead House trial manager Adam Schiff countered that the evidence shows Trump used nongovernmental channels to advance his scheme, which is proof of its illegitimacy, and is now providing after-the fact justifications because he got caught cheating and trying to cover up the plan. In any case, he urged senators who were questioning Trump’s true motives to call for witnesses who can illuminate the issue.

Does it matter whether there was a quid pro quo? 

Senator Ted Cruz, a Texas Republican, was curious about quid pro quo, asking whether conditioning foreign aid is necessarily problematic. Dershowitz argued that politicians all use conditions to accomplish public interests, saying, “the only thing that makes that problematic is if the quo is illegal.” He believes Trump’s requests of Ukraine and withholding military aid were legitimate, even if he could also gain from a Biden investigation.

Schiff countered that conditioning assistance is fine, of course, but not if the underlying motive is corrupt. He continually asked senators to bring in witnesses who could provide direct evidence as to Trump’s intentions, most notably former national security adviser John Bolton, who wants to testify and whose upcoming book allegedly connects the president’s Ukraine dealings with his own ambitions to win the  2020 elections.

Why not let the people decide in elections?

Trump defenders have argued that the impeachment trial is unnecessary because the American people can decide whether they want Trump in office when they go to the polls in November. Indeed, they accuse Democrats of election interference, turning the tables on the allegations against the president.

Impeachment prosecutors, however, counter that Trump tried to sway the upcoming elections by staining his rival’s reputation and that it would be absurd to leave this alleged abuse of power unchecked until election precisely because it pertains to the 2020 race. That would mean letting a cheater compete in the very endeavor he was attempting to rig and simply hoping for the best.

They say elections can’t solve the problem of election interference. Given that all presidential impeachments are in some way connected to elections, there would be no impeachment clause if voters were meant to resolve the corruption question themselves. Schiff reminded senators that impeachment exists “not as a punishment [for the president] but to protect the country.”

Should senators call witnesses?

House managers want senators to hear from witnesses and consider additional evidence, beyond the record compiled by House committees when inquiring into Trump’s Ukraine dealings. They note that all trials, including previous presidential impeachment trials of presidents Andrew Johnson and Bill Clinton, included witnesses and evidence.

Likening the House to a grand jury, they say their investigation—while sufficient to show Trump committed the alleged offenses—doesn’t have to be the be-all end-all record because all trials always involve building a record beyond prosecutors’ initial investigations. House manager and New York representative Hakeem Jeffries turned the question on senators, asking, “To the extent there are ambiguities, this is a trial. A trial has witnesses and evidence. Why should this president be held to a lower standard?”

The president’s defense team countered that bringing in witnesses would set a terrible precedent, putting senators in the position of doing the work that the House should have done earlier. If the prosecution wanted additional witnesses to testify, all it had to do was follow proper procedure, subpoena witnesses, litigate Trump’s claims of privilege in court, and eventually compile a complete record, however long it would take.

They warned senators that calling witnesses opens the door to a long, protracted trial because they, too, will call witnesses and will litigate privilege issues in court, ensuring lawmakers won’t get back to their regular business for months to come.

Did the House follow proper procedure in the impeachment inquiry?

Trump was charged with an article of impeachment for obstruction of Congress, based on his blocking witnesses and “blanket defiance” during the House impeachment inquiry. He stopped witnesses from cooperating in the investigation and now his defenders are saying that representatives should have issued subpoenas to everyone they wanted to hear from and litigated the issues in court. Charging him with obstruction is an invalid shortcut, they say.

As a preliminary matter, however, the defense argues that the House had no authority to inquire into Trump because the impeachment was announced via a press conference in September and not through a House rule or resolution. As such, no request could possibly have been legitimate anyway.

House managers point out that they are, unlike senators, members of a governing body that changes every two years. As such, last year, the House voted to give committees, like the ones that investigated Trump, subpoena power. Having delegated that power officially, committees could legitimately subpoena witnesses and evidence—to the extent they didn’t it was because the president would use protracted litigation to evade prosecution right through the next election, they contend, hence the obstruction charge.

They argue that the president’s lawyers are being disingenuous with the American people. Pointing to efforts to subpoena former White House counsel Don McGahn earlier in the year, they note that, in court, Trump counsel continually argues that the president’s discussions are protected by executive privilege, so though the defense team argues that it simply wants the House to follow procedure, in fact they continue to block the offense and are noncooperative at every juncture by putting up false obstacles.

Are the president’s communications privileged?

Trump defenders argue that the 1974 Supreme Court case US v. Nixon shows that the president’s communications with respect to national security and foreign affairs are shielded from examination. In order to pierce that veil of privilege, “there must be a high showing of need for the breach,” according to White House deputy counsel Pat Philbin.

In light of this, Philbin says, any attempts by the senate to call witnesses will inevitably lead to litigation. Team Trump will continue to fight, he promised, and will claim executive privilege. “That would take some time,” Philbin warned of the hypothetical litigation ahead.

Notably, however, the Nixon case ended poorly for the president, as the Supreme Court ordered him to turn records over to prosecutors in a criminal proceeding and the decision ultimately prompted the president to resign before his impeachment trial. The Nixon court held that “historic commitment to rule of law” outweighs a president’s generalized need for privacy and it suggests that the executive’s immunity is more limited than Trump’s defenders claim. In fact, executive privilege is untested in the impeachment context.

House managers accuse the president of failing procedurally, too. If he wants to claim he’s immune from examination, he must turn over records and specifically cite privilege as to individual issues, they argue. He can’t just defy all requests for evidence,  and he can’t use the immunity to cover up corruption.

They argue that the presiding officer at this impeachment trial, chief justice John Roberts, could rule on any privilege claims or other evidentiary issues when witnesses and records are brought in, as happened in Johnson’s 19th century impeachment trial. However Roberts might feel about that argument, he declined to opine at the trial.

House managers agree with the defense team that the president indeed deserves a fair trial, but say the only way to do this is to bring in all the relevant evidence.

What happens next?

Senators have another day of questioning ahead of them. If all goes as expected, they will likely vote on the critical issue of additional evidence and witnesses on Friday. Earlier this week, Senate majority leader Mitch McConnell admitted he didn’t think Republicans would have the necessary votes to move straight to a decision on guilt or acquittal.

Whether the senators’ 16 hours of questioning will change that should become apparent before the week’s end. For now, it appears the impeachment trial is nearly over or just getting started.

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