Let’s dispense with one thing off the bat: President Donald Trump’s impeachment defense is — in addition to being riddled with false factual claims and misleading characterizations — legal claptrap.
It’s also likely to work.
The essence of the argument, which appears in a 110-page brief submitted Monday by the president’s ragtag legal team in advance of his Senate trial, is that Trump can’t be impeached for behaviors that are not actual crimes.
“Every prior presidential impeachment in our history has been based on alleged violations of existing law — indeed, criminal law,” the brief states. Since House Democrats did not charge the president with committing any specific crimes in abusing his power or obstructing Congress, which are the grounds for the two articles of impeachment that the House of Representatives adopted last month, Trump must skate, the reasoning goes. You can almost hear the lawyers swallowing their pride.
That’s because their argument is, in the words of one legal scholar who recently published a book on the history of impeachment, “constitutional nonsense.” “High crimes and misdemeanors” — the founders’ standard for impeachment — has always been understood to refer to a unique class of offenses, those arising from what Alexander Hamilton called “the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”
The federal criminal code didn’t even exist when the Constitution was drafted, yet the framers were aware of the innumerable ways an executive could abuse or violate his trust. They were also aware that impeachment was a long-established remedy for such abuses.
In his authoritative 19th-century legal treatise, Justice Joseph Story of the Supreme Court explained that impeachable acts are by their nature impossible to define in advance. There are many “purely political” offenses that qualify, he wrote, “not one of which is in the slightest manner alluded to in our statute book.”
This view is not remotely controversial. And yet Alan Dershowitz, the Harvard law professor and self-professed liberal who has lately taken to defending Trump against all comers, insists that everyone’s got it wrong. That includes, apparently, Dershowitz himself, who argued back in 1998 that “if you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty, you don’t need a technical crime.” Now, Dershowitz argues that to be impeachable, a president’s behavior must be, if not criminal, at least “crime-like”— an argument that could charitably be described as legal-like.
Perhaps it should come as no surprise that a president who described the Constitution as “like a foreign language” would cling to such a legally preposterous claim. But to be fair to Trump and his lawyers, it’s the only one left. The evidence amassed during the House impeachment proceedings — that he shook down a foreign government in the service of his own reelection campaign — is overwhelming, and Trump has yet to counter any of it with so much as a single piece of paper or word of testimony. He has given himself no option but to say, in effect: “Yeah, I did it. So what?”
This is the Trumpian equivalent of, “It’s a free country!” And yet as every grade-school child quickly discovers, that does not mean you can do whatever you want.
So why is Trump’s argument almost certainly going to work? Because the Republican majority in the Senate, led by Mitch McConnell, knows that its own survival is tied to Trump’s, and cares more about its grip on power than its fidelity to constitutional governance.
That’s why McConnell is doing all he can to deep-six the impeachment trial with as little fanfare, and as few witnesses, as possible. He knows the “So what?” gambit becomes harder to sustain in the face of testimony from first hand witnesses to the president’s Ukraine scheme — people like John Bolton, the former national security adviser, and Rudy Giuliani, Trump’s personal lawyer, both of whom have said they would be willing to testify.
An embarrassingly small clot of Republican senators have said they are open to voting to hear from these and possibly other key witnesses. Let’s hope they stick to their guns. For the rest, Trump’s defense brief offers what he might call a perfect solution: He won’t make them respond to serious legal arguments if they won’t hold him to account for his inexcusable behavior. In this bargain, as with so much else over the past three years, the president and the Senate are made for each other.
Jesse Wegman is an editorial writer for The New York Times.