With Donald Trump's impeachment trial poised to begin tomorrow, the U.S. House of Representatives filed a "Trial Memorandum and Statement of Material Facts" with the office of the Secretary of the Senate on Saturday afternoon. The purpose of the document was simple: the Democratic-led House's brief was intended to establish the president's guilt, while reviewing the case the impeachment "managers" will present at trial.
The 111-page document is a persuasive, substantive, well-researched, and thoroughly footnoted indictment against a president who, according to overwhelming and uncontested evidence, abused the powers of his office as part of an unprecedented extortion scheme. It concludes by asking senators to do their duty and bring Trump's presidency to an end.
A few hours later, the White House submitted a short "answer" to the House's allegations. As the New York Times reported:
In a six-page filing formally responding to the House impeachment charges submitted shortly after and filled with partisan barbs against House Democrats, Mr. Trump's lawyers denounced the case as constitutionally and legally invalid, and driven purely by a desire to hurt Mr. Trump in the 2020 election. [...]The president's lawyers did not deny any of the core facts underlying Democrats' charges, conceding what considerable evidence and testimony in the House has shown: that he withheld $391 million in aid and a White House meeting from Ukraine and asked the country's president to investigate former Vice President Joseph R. Biden Jr. and his son, Hunter Biden.But they said Mr. Trump broke no laws and was acting entirely appropriately and within his powers when he did so, echoing his repeated protestations of his own innocence. They argued that he was not seeking political advantage, but working to root out corruption in Ukraine.
The entirety of the surprisingly short White House argument is online here (pdf), and I think it's fair to say it is not an impressive document. Paul Waldman joked, "[I]t 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."
But while it's true that most of the missive was familiar palaver, there was one element worth dwelling on.
At the top of the document's second full page, the president's lawyers argued that the first article of impeachment approved by the House "fails on its face to state an impeachable offense." It's a curious argument: the first article of impeachment charges Trump with abusing the powers of his office. By the White House's latest reasoning, that's not something a president can or should be impeached for having done.
The document then complains that the House has not accused Trump of statutory crimes, before adding, "House Democrats' 'abuse of power' claim would do lasting damage to the separation of powers under the Constitution."
In case that was too subtle, Alan Dershowitz, a member of the president's legal defense team, told ABC News' George Stephanopoulos yesterday the House vote "was to impeach on abuse of power, which is not within the constitutional criteria for impeachment." (Dershowitz went on to insist that impeachment requires a literal, statutory crime -- which is at odds with everything we know about impeachment, and which is the opposite of what he used to argue.)
Team Trump, in other words, is of the opinion that there can be no accountability for presidents who abuse the powers of their office. Even if Trump is guilty of abuses of power, the argument goes, Congress can and should have no recourse.
I'll be eager to hear Senate Republicans express their opinions on the legitimacy of such a defense.
It's helpful, to a degree, to see Team Trump's position in writing, in large part because the White House has said very little about the entire affair. Sure, we've had a deluge of tweets and occasional presidential whining for the cameras, but in terms of substantive arguments, Trump and his attorneys refused to participate in the House's impeachment proceedings, leaving everyone to wonder about the nature of their defense.
One of the few things the legal defense team was willing to put in writing was a strange, eight-page screed in October -- it was, oddly enough, longer than the document it submitted over the weekend -- that even some conservatives described as "bananas" and a "barely-lawyered temper tantrum."
That was three months ago. The president and his lawyers have had time to craft a more serious defense, but there's little to suggest they've used that time wisely.