January 20, 2020

After a relatively quiet holiday weekend, the frenzy before tomorrow’s Senate impeachment trial has begun. It is important to remember that Trump's people have produced no evidence that the president did not, in fact, do the things of which he has been charged. His supporters are not even trying to dispute the facts; they are just saying that his actions are not impeachable offenses. So in an important sense, what will happen in the Senate is not a normal trial because there will be no actual weighing of evidence. It is simply a fight for control of American popular opinion.

There are a lot of new details from things that happened today, but not really a lot that is new, at least in contour. This afternoon, the president’s lawyers submitted a 110-page brief, arguing that neither of the articles of impeachment passed by the House of Representatives are valid, because neither identifies a law that was broken. They claim, without evidence, that the president’s actions—which they do not dispute—were simply intended to root out corruption and to get other countries to pay more for their military protection. They argue that because the president did nothing wrong, the Senate should “swiftly reject” the charges against him.

This is disingenuous. Impeachment, by definition, does not necessarily involve a broken law, if for no other reason than that there was no federal criminal code when the Founders wrote the Constitution. Less obvious but perhaps more significant, impeachment has always been a political process and not a criminal one, and is intended to protect us from a bad political leader. The Senate trial is not a criminal trial, and conviction has no penalty except removal from office. This argument is solely an attempt to play to Trump’s base by yelling that there was no crime.

But there were crimes, including the breach of federal election laws by soliciting something of value from a foreign entity to provide an advantage in an American election. There is another word for this exchange, too: bribery, which is also illegal. More recently, the General Accountability Office (GAO) has established that the withholding of congressionally approved funds from Ukraine was also illegal.

As conservative lawyer and leader of the anti-Trump Lincoln Project George T. Conway put it in the Washington Post, the “arguments are wrong on the facts and wrong on the law, but that’s not the worst part. At its core, they represent an attack on the impeachment process — and on the Constitution itself.”

Trump’s approach, and that of his team, appears simply to be to attack, and attack, and attack, lying about what happened and blaming the Democrats for our current troubles, muddying the waters just as they did in the House hearings and impeachment vote, to fire up his base and make Americans who oppose him turn away from the events out of disgust. Tonight, Trump added to his legal team some of his most vociferous defenders from the House: Representatives Doug Collins (R-GA), Mike Johnson (R-LA), Jim Jordan (R-OH), Debbie Lesko (R-AZ), Mark Meadows (R-NC), John Ratcliffe (R-TX), Elise Stefanik (R-NY), and Lee Zeldin (R-NY). The White House said these lawmakers “have provided guidance to the White House team, which was prohibited from participating in the proceedings concocted by Democrats in the House of Representatives"-- this is flatly untrue, of course-- and would continue to advise as the process moved through the Senate.

Republican senators have wanted to keep the trial from becoming a circus, but the addition of this group guarantees Trump will get the fireworks he wants. Importing attack dog representatives into the Senate, though, also guarantees that it will not be possible to argue convincingly that the trial is anything other than a fight to defend Trump, rather than protecting the office of the presidency from Democrats’ attempt to “permanently weaken” it, as his lawyers tried to argue in their brief.

For his part, Senate Majority leader Mitch McConnell (R-KY) is doing everything he can to make sure the public sees as little of the proceedings as possible. As conservative pundit David Frum put it: “No witnesses… No evidence… No time… No cameras.” As of Sunday night there had been not even “the most basic negotiation or exchange of information,” according to Senate Minority Whip Dick Durbin (D-IL), and this evening, less than 24 hours before the trial is supposed to start, McConnell revealed a four-page resolution establishing trial rules.

The rules leave open the possibility of simply ending the case immediately, which is unlikely to happen. They limit the arguments from each side to 24 hours over the course of two days each. This would mean a deluge of information too much for most of us to take in, even if significant argument didn’t happen in the middle of the night… as of course it would. The rules give the Senate the option of refusing to hear new evidence or testimony, and on the chance that the Senate does vote for testimony, the rules are arranged to prevent former National Security Advisor John Bolton—or anyone else-- to testify in public.

Remember that current arrangements will also keep reporters from their laptops and cellphones, and will keep CSpan cameras out of the Senate. One would almost think the Republican leaders don’t want the American people to know what’s going on.

Senate Minority Leader Chuck Schumer (D-NY called the resolution “a national disgrace.” The rules will be debated—angrily, if the news tonight is any indication-- in the Senate on Tuesday. If they stay largely unchanged, the trial could be over by the end of next week.

The GOP position is that even if Trump did the things of which he is accused, it doesn’t matter. Those things are not significant enough to remove him from office. Remember, what he did was not simply to “MAKE A PERFECT PHONE CALL!” as he keeps saying. The president used the power of his office—the power of the American people—to try to get a foreign leader to help him steal the 2020 election by smearing one of Trump’s chief political rivals, quite like what happened in 2016. When caught, Trump tried to cover up what he had done, and stonewalled the investigation, declaring that he did not have to answer congressional subpoenas.

Trump tried to rig a presidential election with the help of a foreign government and then covered up what he had done. And yet, GOP leaders say this is not an impeachable offense.

If permitting the outcome of our elections to be determined by a foreign power isn’t an impeachable offense, one has to wonder… what is?

The Senate trial gets underway at 1:00 tomorrow.

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Notes:

Trump brief: https://www.whitehouse.gov/wp-content/uploads/2020/01/Trial-Memorandum-of-President-Donald-J.-Trump.pdf

Reps: https://thehill.com/homenews/administration/479079-white-house-appoints-gop-house-members-to-impeachment-defense-team

Rules: https://www.nytimes.com/2020/01/20/us/politics/mcconnell-pushes-to-speed-impeachment-trial-as-trump-requests-swift-acquittal.html

https://int.nyt.com/data/documenthelper/6710-mcconnell-rules-package/8befa731d3f337196375/optimized/full.pdf#page=1

https://news.yahoo.com/mc-connell-releases-impeachment-trial-rules-sparking-new-outcry-from-democrats-004023244.html?soc_src=hl-viewer&soc_trk=fb

https://www.npr.org/2020/01/20/798007597/read-mcconnell-lays-out-plan-for-senate-impeachment-trial-procedure

https://www.cnn.com/2020/01/20/politics/senate-organizing-resolution-released/index.html

https://www.washingtonpost.com/politics/trumps-lawyers-senate-gop-allies-work-privately-to-ensure-bolton-does-not-testify-publicly/2020/01/20/cbc67ef0-3bae-11ea-8872-5df698785a4e_story.html?fbclid=IwAR3qeiMVFulEe6Vh94fc7G1XqZz99O6xnirVmXwZ5enw9rEjoIB6Ymp504w&utm_campaign=wp_main&utm_medium=social&utm_source=facebook

https://www.politico.com/news/2020/01/19/durbin-senate-democrats-dark-impeachment-rules-101009

Schumer:

Frum:

Conway: https://www.washingtonpost.com/opinions/2020/01/20/george-conway-oped-trump-impeachment-answer/