Four Fundamental Flaws in President Trump’s Impeachment Trial Memo

It is hard to take seriously President Donald Trump’s lawyers’ Trial Memorandum submitted on Monday in response to the House Managers’ brief setting forth the grounds and arguments for convicting and removing the President from office. It is a lot of things, but brief it is not. It is 109 pages, with four appendices, written by no less than 12 lawyers. Yet, it is unlike any legal brief and no impeachment defense I have ever seen. It has led constitutional commentators to scramble for the right words: Harvard Law Professor Laurence Tribe suggests it is a litany of “alternative facts” and “bogus legal arguments.” Frank Bowman, one of the leading scholars of impeachment, calls it “constitutional nonsense,” and I have vacillated between calling it “fake law” because its legal arguments are specious at best or “constitutional projection,” because all the charges it levels at the House actually better describe the President’s own misconduct.

To be fair, there was little expectation that the Memorandum would be any different than the defense we have seen from the President virtually every day when he is credibly charged with some kind of serious misconduct, from self-dealing to the freeze on the appropriated funds for Ukraine’s national security: There is denial, feigned outrage that the Democrats are the real culprits and responsible for much worse, the further outrage that the Democrats are trying to undo the 2016 presidential election, and last but not least the protestation that whatever he did was “perfect.” The Memorandum follows this same pattern down to the very use of the word “perfect.”

It would take more than 109 pages to correct all of the document’s fallacies and incorrect statements of law and fact. Instead, I will highlight four of the Memorandum’s deficiencies that make it more of a political screed than a legal document deserving of respect and serious consideration by senators, the public, historians, and constitutional scholars.

First, the Memorandum is replete with bluster. There is bluster on nearly every page, just as it was in the White House Counsel’s October 8th letter denouncing and demeaning the initiation of the House’s impeachment inquiry against the President of the United States. The House’s impeachment articles are “an affront to the Constitution, “rigged,” “brazen political act,” “debase the grave power of impeachment,” “violate every precedent and principle of fairness” followed in previous impeachments, a “dangerous perversion,” and “are a political tool to overturn the result of the 2016 presidential election and interfere in the 2020 election.” That is a lot of words, and we are not yet through half of the first page of the document. It does not get better the more you read, proving the old adage that, “If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table.” We have seen this kind of behavior before with the tantrums (I am being precise and literal with that choice of words) thrown by Republican members of the House Intelligence and Judiciary Committees. The only thing this kind of rhetoric seemingly achieves is energizing the President’s base.

This kind of table pounding is all too familiar.  Here again we have the President pounding the table, denying all charges, proclaiming the Democrats have done far worse, and say, as the Memorandum does, “the President did absolutely nothing wrong,” and that his actions were “perfectly legal, completely appropriate.” If it is said enough times, White House lawyers apparently believe, then people will just accept it as fact. That is how disinformation can, indeed, work.

Second, the Memorandum is replete with misrepresentations and false statements of fact. For example, it reiterates the canard that the whistleblower’s report is a “false account.” There was nothing false about it. It was corroborated by virtually every witness who testified before the House Intelligence Committee, and so much the worse for the President that the people testifying against him were not Democrats but people he had appointed himself. It does not just strain credulity but decimates it to maintain that everyone who has testified under oath in these hearings is somehow lying while only the President is telling the truth.

Sometimes, we have to believe what we see and what we hear and not fall prey to the old Chico Marx line, when his fiancée discovers a woman in his bed, “Who ya gonna believe, me or your own eyes?” Yet, the Memorandum repeatedly insists that the President’s call was “appropriate” because his concern was with corruption in Ukraine. If the President had such a concern, it is not mentioned anywhere in his speeches or, more pertinent to the impeachment, in none of the President’s calls with Ukraine’s president (despite his team having given him talking points to raise it with President Zelenskyy). Indeed, the word “corruption” does not appear in the call transcripts, nor in the pertinent text messages between Ambassador Gordon Sondland and Kurt Volker or between Lev Parnas and Rudy Giuliani. The President, and his subordinates involved in the scheme, had no general concern about corruption in that country but instead, as numerous witnesses attested and new documents produced after the impeachment confirm, his concern was always about the Bidens. In the famous July 25th call with the President of Ukraine, President Trump mentioned the Bidens five times. He did not otherwise mention corruption. Combine that with the evidence found by the House Intelligence Committee that there was a systematic effort to create a shadow operation to get rid of the United States’ exemplary ambassador in Ukraine, all done with the purpose of putting pressure on Ukraine to agree merely to the announcement of an investigation against the Bidens. There was, in fact, no concern about an actual investigation, just that announcement, and the reason why is obvious – to promulgate dirt on a leading rival in the next presidential election.

Third, the Memorandum is replete with misrepresentations and false claims about the law and about impeachment practices and procedures as well. For example, the Memorandum repeatedly complains that the House did not afford the president “due process.” Throughout the House’s impeachment proceedings, Republicans proclaimed “due process” was a problem. Yet, the very same Republicans who made this complaint were invited to or participated in the closed door depositions the President is now complaining about. What’s more, “due process” does not apply to these proceedings, since “due process” applies to the government when it is depriving someone of “life, liberty, or property.” In an impeachment, none of those is at risk. Even if the constitutional clause did apply, basic due process requires notice of a hearing and an impartial decision-maker. The President had these safeguards, and more, throughout the House proceedings. He was given a surplus of fair process (including being invited to attend the testimony of constitutional law scholars and even have his counsel question them), but he turned the opportunities down. Importantly, the President was also given the explicit opportunity by the codified ground rules to have his counsel present for hearings and object to the admission of testimony and evidence when that information was submitted to the House Judiciary Committee by the House Intelligence Committee witness.

The Memorandum gets a lot about impeachment wrong. On the legal facts, it argues that not one witness had “direct knowledge” of the call or the President’s role and that the evidence is nothing but “speculation and hearsay.” To begin with, these are just superficial talking points. Numerous prosecutions and impeachments have turned on indirect or circumstantial evidence; the Constitution does not forbid this, nor do the rules of either the House or the Senate. Second, recall yet again that key witnesses with “direct” knowledge of the call are being ordered by the President not to testify. The President’s lawyers defend the President’s refusals to comply with lawful subpoenas on the ground that he was entitled to assert legal defenses in response to them, but that was not, nor could it be, the case when he ordered the entire executive branch not to cooperate with the inquiry. That is not a defense. That is obstruction. What’s more, the nonappearance of these witnesses under orders from the President should count against the President like it would in a criminal trial, as former FBI General Counsel Andrew Weissmann has persuasively written.

Strong competitors for most outrageous claims in the Memorandum abound throughout the document. It suggests, for example, that the two articles of impeachment are “impermissibly duplicitous” and that impeachable offenses must be “violations of established law.” Abuse of power, charged in the first article, is not “duplicitous” in the least. One merely needs to read the constitutional convention debates and The Federalist Papers to know the framers placed impeachment in the Constitution as a check on abuse of power. The Memorandum never pauses to consider what an abuse of power is, but it is the exercise of power in violation of the Constitution. So, the President’s alleged misconduct does violate a law, in this case the supreme law of the land.

The President claims explicitly that he should be treated differently than any other impeachable officials, and so his lawyers quibble that no president has ever been impeached, much less convicted and removed for abuse of power, because the first article “alleges no crimes at all, let alone ‘high crimes and misdemeanors,’” as required by the Constitution, they say. It should come as no surprise that this claim is wrong. The second article of impeachment approved by the House Judiciary Committee against Richard Nixon in 1974 charged that Nixon had ordered the heads of the IRS, the FBI, and the CIA to harass his political enemies. The orders did not violate any criminal laws but they are unquestionably impeachable misconduct.

There is widespread agreement among those who have studied the impeachment process that impeachable offenses are not restricted to crimes. A basic principle of impeachment, recognized in every study of the subject in this country, is that a statutory crime is not a requirement for impeaching a president. Abuse of power was the preeminent concern among the framers. Even Jonathan Turley, the Republicans’ expert in the December 4th hearing of the House Judiciary Committee, said this, and so too has one of President Trump’s defense attorneys, Alan Dershowitz, when he argued against the impeachment of President Clinton. On this point, they were both right, though the President’s lawyers disagree with them.

The Memorandum argues that the fact that the President is different is precisely why he may not be impeached, convicted, and removed for abuse of power. The President has powers no one else has, but he may not always be breaking the criminal law when he abuses his powers. Yet, he still is impeachable for such abuses, because there is often no remedy at law. He may evade all responsibility for his misconduct if the President’s lawyers are right. This is exactly what they want – they want the President to be above the law, they want him to be able to abuse his powers without facing accountability, and they want him to have the freedoms to ignore the criminal law because he is the nation’s chief enforcement officer, to use the powers of his office to displace Congress (by refusing to appropriate funds to Ukraine for his own personal reasons, not for any policy), and to benefit himself. They insist that removing Trump on the basis of the misconduct set forth in the House’s two impeachment articles “would permanently weaken the Presidency and forever alter the balance among the branches of government in a manner that offends the constitutional design established by the Framers.” This is strong language, but the lawyers wish for Trump as president exactly what they wish to prohibit in Congress – breaking the institution away from the Constitution’s system of checks and balances. If impeachment is not legitimate and the president is not subject to civil or criminal accountability while he is in office, he is free to try to rig elections or abuse his power any way he wishes. The ballot box is obviously no remedy for such abuse by a first term president, or one in her second term of office.

Fourth, a final problem with the Memorandum is that the lawyers who wrote it should be brought up on ethics charges in any of the bars in which they are licensed to practice law. Rule 3.3 of the Code of Professional Responsibility requires lawyers to be truthful and candid in the arguments they make before tribunals. The rule counts legislative proceedings as tribunals. Yet, the President’s lawyers take liberties with the law and the facts throughout, for example, maintaining the President’s support for Ukraine is “beyond reproach.” It is likely to be a problem for this assertion given the duties of a lawyer not to make misleading statements or engage in deceitful practices, such as pretending the President did not freeze assistance for Ukraine. The misrepresentations and misstatements of the law are not excused because the President is entitled to a vigorous defense. They pose problems for the President’s lawyers because nothing excuses their deliberately misleading Congress and denying clear truths.

But don’t just take my word that the Memorandum is bad. Just read it.

Photo: Getty Images/acmelucky777

 

About the Author(s)

Michael J. Gerhardt

Michael J. Gerhardt is the Burton Craige Distinguished Professor of Jurisprudence at the University of North Carolina School of Law. Gerhardt is the author of six books, including leading treatises on impeachment, appointments, presidential power, Supreme Court precedent, and separation of powers. Gerhardt’s extensive public service has included his testifying more than a dozen times before Congress, including as the only joint witness in the Clinton impeachment proceedings in the House; speaking behind closed doors to the entire House of Representatives about the history of impeachment in 1998; and serving as special counsel to the Senate Judiciary Committee for seven of the nine sitting Supreme Court justices. Follow him on Twitter (@MichaelGerhard8).