How Donald Trump's Unlikely Legal Team Will Try to Defend Him
By Jeffrey Toobin, The New Yorker
21 January 20
President Trump's insight into what captivates the American people, and what
draws the attention of the news media, remains remarkable. Consider, for
example, how he cast-that seems the right word-the defense team for his
impeachment trial, which begins Tuesday, in the United States Senate. There
are not many legal celebrities in the United States, but Trump now has two
of them: Kenneth Starr, the erstwhile pursuer of Hillary and Bill Clinton as
the independent counsel during the Whitewater (and more) matter, and Alan
Dershowitz, defender of O.J. Simpson, other famous clients, and, lately, his
own conduct. How can we not wonder how Starr, who inveighed against what he
called the dishonesty of the Clintons, will contrive to defend this
President? What will Dershowitz, a onetime liberal and a civil libertarian,
say about his new client, who is openly hostile to the values enshrined in
the Bill of Rights? And how did Trump manage to find not one but two famous
lawyers who had previously joined forces to defend Jeffrey Epstein, who was
a friend of Trump's?
Five of the President's eight lawyers have appeared frequently on Fox News,
and they've been hired to put on an entertaining show for the Senate. (Pat
Cipollone, the White House counsel, Jane Raskin, a member of Trump's legal
defense team, and Eric Herschmann are the exceptions.) But the showmanship
that's likely to be on display should not obscure what's really going on
here. The outcome of the trial is not in doubt; there is no way that
sixty-seven senators will vote to remove Trump from office. But there is a
real question about whether the trial will involve any fact-finding-that is,
the presentation of witnesses and new documentary evidence. Trump's real
priority, and that of the Republican leadership in the Senate, is to make
sure that never happens.
Dershowitz is likely to be the crucial figure on the Senate floor. He is
currently trying to portray himself as more of a neutral constitutional
expert, rather than as a full-fledged member of Trump's defense team. That
semantic dodge is meant to elevate his core argument: that the two articles
of impeachment, even if they accurately describe the President's conduct,
are not impeachable offenses. It's worth addressing that argument, because
it's likely to be crucial to the Senate trial, not just on the merits but on
the issue of whether the seven House managers named by Nancy Pelosi last
week will be allowed to call witnesses.
The first article charges Trump with abuse of his constitutional powers,
through his dealings with the government of Ukraine. The claim is a familiar
one by now. Trump withheld congressionally authorized funds, and also
personal Presidential attention, from Ukraine in an effort to force the
announcement of an investigation of former Vice-President Joe Biden, Trump's
putative 2020 opponent, and Biden's son Hunter. The second article charges
Trump with obstructing Congress, by refusing all demands for witnesses and
documents in the Ukraine investigation. Dershowitz says, and all of Trump's
lawyers will argue, that neither article charges conduct that is a high
crime and misdemeanor, the standard for impeachment established in the
Constitution.
Dershowitz does not say exactly that a President must commit a crime-an
actual criminal offense-to commit a high crime and misdemeanor, but that's
what his position comes down to in the real world. He is worried, rightly,
about Congress trying to evict a President simply because of policy
differences. But neither of the articles refers to any good-faith dispute
over Trump's performance in office. Rather, both charge core violations of
Presidential duties. What Dershowitz's position misses is that impeachment
is designed specifically to police Presidential conduct-to make sure that a
President does not abuse the powers which that office alone possesses under
our system of governance. This is why Bill Clinton's conduct should not have
been impeachable. Lying under oath about his relationship with Monica
Lewinsky was likely a crime-perjury-but it was not an abuse of Presidential
power, and thus not a high crime and misdemeanor.
What makes Dershowitz's argument so important in the context of Trump's case
is that it gives Republican senators an excuse to vote against witnesses. If
his view is adopted, it means that Republicans can accept the truth of
factual assertions from the House managers, for the sake of argument, and
still vote to exclude new witnesses. By this reasoning, the witnesses would
not offer anything of value because they would only testify to conduct that
is not impeachable, anyway. That's the real point, and the real danger, of
Dershowitz's argument; it gives Republicans cover to cut short the Senate
trial.
Trump and his followers (and his enablers, such as Dershowitz) surely
recognize that the facts in this case will show how much the President
abused his power through his dealings with Ukraine. (The Government
Accountability Office just added to those facts by finding that the
withholding of funds for Ukraine was illegal.) If the House managers are
allowed to call witnesses, those witnesses will likely make the case against
Trump even stronger. At some level, the President's defenders must know that
Trump's conduct is impeachable. That's why Trump has taken every opportunity
to block the facts from coming out. On Tuesday, the President's lawyers
reveal their true agenda: to persuade the Senate to preserve Trump's
incriminating secrets.
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