As I noted below, the impeachment trial of Trump is a study in foregone conclusions to the point that, according to Paul Waldman in the Washington Post, his defense team isn’t even trying.
After the Democratic House managers released a 111-page indictment providing copious detail on the events that led to impeachment, the nature of Trump’s misconduct and the constitutional basis for his removal, Trump’s attorneys responded with a six-page document that would have been shocking were it not just the kind of thing we’ve come to expect from this White House.
Indeed, it 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. It makes no attempt to contest the facts, instead just asserting over and over that the president is innocent and the entire impeachment is illegitimate, calling it “unlawful” and “constitutionally invalid,” with no apparent understanding of what those terms mean. The articles of impeachment, Trump’s lawyers say, “fail to allege any crime or violation of law whatsoever, let alone ‘high Crimes and Misdemeanors,’ as required by the Constitution.” They then repeat this argument multiple times throughout a screed seemingly pitched to the Fox News hosts who will spend the coming days repeating its absurd claims.
The trouble, as any historian or constitutional scholar will tell you, is that just as there are crimes the president could commit that would not be impeachable (say, shoplifting a candy bar), there has never been any requirement that impeachment can only be used for violations of criminal law. Not only were the Framers deeply concerned about the potential of the president abusing his office, at the time the Constitution was written, there was no such thing as a federal criminal code.
Trump has found the one constitutional “expert” who will take such a position, however: Harvard professor emeritus and frequent Fox News guest Alan Dershowitz, whom Trump added to his defense team last week. “Criminal-like conduct is required” in order for a president to be impeached, Dershowitz now claims, to the puzzlement of pretty much everyone who knows anything about this topic.
Since hypocrisy is something of a job requirement for working for Trump, Dershowitz is naturally on video making exactly the opposite argument in 1998. “It certainly doesn’t have to be a crime if you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty,” he said at the time.
The defense wasn’t written for a law school review or to be submitted as a legal brief in a court of law. It was written solely for the consumption by the audience of Fox News denizens and the lawyers who are sworn to mount a zealous defense of their client until the money runs out. I am certain that if this brief, written like a homework assignment on the bus to school the day it was due, was submitted to a judge, it would be tossed, followed by charges of contempt and referral to the Bar Association for malpractice. But they’ll get away with it because even though the United States Senate is comprised of many lawyers, they are not going to be held accountable to the canons of judicial ethics or peer review: it will be by Twitter.