As Trial Begins, the White House Strikes Back
“Trump has no defense at all,” Harvard law professor Laurence Tribe, an influential figure among impeachment Democrats, tweeted recently.
“The case is uncontested,” Democratic House impeachment manager Rep. Hakeem Jeffries said.
“They can’t contest the facts,” said lead Democratic impeachment manager Rep. Adam Schiff.
In the last month or so, it has become commonplace for Democrats and their allies in the press to argue that President Trump simply has no defense against the two articles of impeachment passed by the House. Republicans disagreed, and vigorously defended the president in House hearings, but the fact was, the White House had not released a comprehensive defense in the nearly four months since Speaker Nancy Pelosi announced the beginning of impeachment proceedings.
On Monday the White House released a 110-page defense memorandum signed by White House counsel Pat Cipollone and Trump lawyer Jay Sekulow. In it, the two lawyers address the substance of the Democratic charges against the president: the Trump-Zelensky phone call of July 25, 2019, the decision to withhold and later deliver security assistance to Ukraine, the legitimacy of Trump’s concerns about Ukrainian activities in the 2016 election, the case of Hunter Biden, and more.
In other words, all the things the president’s adversaries said he could not address — all those things are addressed in the Cipollone-Sekulow memo.
The lawyers also criticize the process of impeachment in the House, and the definition of an impeachable offense. Taken together, the memo is the across-the-board defense that many Republicans have long wanted the White House to mount.
On the substance of the abuse-of-power article against the president, Cipollone and Sekulow present a detailed analysis of the Trump-Zelensky call and events surrounding it. The rough transcript of the call released by the White House on Sept. 25 “shows the president did nothing wrong,” they write. Trump’s discussion of burden-sharing has been a “consistent theme” of his presidency.
As far as the president’s discussion of the 2016 election was concerned, “Uncovering potential foreign interference in U.S. elections is always a legitimate goal, whatever the source of the interference and whether or not it fits with Democrats’ preferred narrative.” There were, in fact, legitimate concerns about Ukrainian efforts to influence the 2016 election, and it was not improper for the president to inquire about them.
It was also legitimate to bring up the issue of Hunter Biden and Burisma, the lawyers argue. “Public reports indicate that then-Vice President Joe Biden threatened withholding U.S. loan guarantees to secure the dismissal of a Ukrainian prosecutor, even though Biden was, at the time, operating under what appeared to be, at the very least, a serious conflict of interest,” they write.
Then there was the issue of the temporarily withheld assistance. “There was no discussion of the paused security assistance on the July 25 call,” Cipollone and Sekulow write. The Ukrainians have said there was no pressure on them, and they did not know that security assistance had been paused at the time of the call. “House Democrats’ charge is further disproved by the straightforward fact that not a single witness with actual knowledge ever testified that the president suggested any connection between announcing investigations and security assistance,” the memo says.
Cipollone and Sekulow single out for special criticism Gordon Sondland, the U.S. ambassador to the European Union who offered changing testimony to House impeachers. “House Democrats base their case [for a quid pro quo] on witnesses who offer nothing but speculation,” they write. “Worse, it is speculation that traces back to one source: Sondland. Other witnesses repeatedly invoked things that Ambassador Sondland had said in a chain of hearsay that would never be admitted in any court.”
On the issue of process, Cipollone and Sekulow argue that House Democrats cut so many corners in the impeachment inquiry that the White House had legitimate reasons not to participate. Finally, on the question of impeachable offenses, they argue that “abuse of power” is not only not a crime but is far too broad and ill-defined to be impeachable. As far as obstruction of Congress is concerned, they argue that in the face of a reckless impeachment investigation, the White House simply asserted legitimate constitutional rights, and the assertion of legitimate constitutional rights cannot be an impeachable offense.
All in all, it was an argument that heartened many Republican defenders of the president.
“I think it effectively lays out why this impeachment proceeding is flawed on every basis — factually, legally and constitutionally,” said GOP Rep. John Ratcliffe. “The complete deprivation of due process alone, where the president’s counsel was forbidden from participating during the first 71 days of the impeachment inquiry, should result in a dismissal of both articles at the onset of the trial proceedings.”
Now, the important question is how Senate Republicans will react. Many have not followed the details of impeachment closely. The Cipollone-Sekulow memo gives them the first all-inclusive defense of the president anyone has seen. It will likely become the template for Republican defenses in the contentious days and weeks to come.
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