Over the weekend, as the Senate prepared for the impeachment trial of Donald Trump, the newly appointed House impeachment managers and the president’s newly appointed legal team both filed their initial legal briefs.
At least, one of them was a legal brief. The other read more like the scream of a wounded animal.
The House managers’ brief is an organized legal document. It starts with the law, the nature and purposes of Congress’s impeachment power, then walks through the evidence regarding the first article of impeachment, which alleges abuse of power, and seeks to show how the evidence establishes the House’s claim that President Trump is guilty of this offense. It then proceeds to argue that the offense requires his removal from office.
The brief then rinses and repeats the exercise with respect to the second article of impeachment, which deals with alleged obstruction of Congress. It concludes: “President Trump has betrayed the American people and the ideals on which the Nation was founded. Unless he is removed from office, he will continue to endanger our national security, jeopardize the integrity of our elections, and undermine our core constitutional principles.”
By contrast, the White House’s “Answer of President Donald J. Trump” to the articles of impeachment, filed by the president’s personal lawyer Jay Sekulow and the White House counsel, Pat Cipollone, does not read like a traditional legal argument at all. It begins with a series of rhetorical flourishes—all of them, to one degree or another, false. The articles of impeachment are “a dangerous attack on the right of the American people to freely choose their President,” the president’s lawyers write—as though the impeachment power were not a constitutional reality every bit as enshrined in the founding document as the quadrennial election of the president. The articles are “a brazen and unlawful attempt to overturn the results of the 2016 election and interfere with the 2020 election,” and are “constitutionally invalid on their face,” they write, as though the president’s right to extort foreign leaders for political services were so beyond reasonable question, it is outrageous that anyone might object to it.
This document reads like one of the president’s speeches at his campaign rallies. The language is a little more lawyerly, if only a little. In Sekulow and Cipollone’s hands, Trump’s cries of “Witch hunt!” have turned into “lawless process that violated basic due process and fundamental fairness.” His allegations that Democrats are a “disgrace” have turned into “an affront to the Constitution.” And Trump’s insistence that there’s a plot to destroy his presidency has become a “highly partisan and reckless obsession with impeaching the president [that] began the day he was inaugurated and continues to this day.”
But the message is unchanged. It’s not a legal argument. It’s a howl of rage.
There is, to be sure, a lack of parallelism between the purposes of the two documents. The House managers’ document is an opening brief that lays out the prosecutors’ case at some length, while the president’s response is an initial six-page reply to the articles. The White House’s first full brief is due this afternoon, so it’s possible that the lawyers will sound, well, a little more like lawyers in that document. But don’t hold your breath.
In fact, this is not the first time Cipollone has signed his name to a screed along these lines. In October, shortly after Speaker of the House Nancy Pelosi announced the beginning of a formal impeachment inquiry, Cipollone sent the House a rambling eight-page letter that read almost as if it had been dictated by the president—down to the obsessive focus on the moral failings of the House Intelligence Committee chairman, Adam Schiff, which would be familiar to anyone reading the president’s Twitter feed. The former White House counsel Bob Bauer decried it as offering “arguments hopelessly weak in substance, political in both content and tone, and harmful to the credibility of [Cipollone’s] office.”
The document produced by the White House this weekend is a little more organized, but the arguments and the angry tone are the same. Read together, Cipollone’s October letter and this new document written with Sekulow set expectations for the president’s defense: barely contained, and barely coherent, rage—a middle finger stuck at the impeachment process, rather than any kind of organized effort to convince senators or the public that the president’s conviction would be unmerited, imprudent, or unjust.
Consciously or not, Trump’s pick of defense counsel for the Senate trial sends the same message. Along with Sekulow and Cipollone, the president will be represented by the former independent counsels Ken Starr and Robert Ray—Starr’s successor in the investigations against Bill Clinton—and the Harvard Law School professor emeritus Alan Dershowitz, among others. This is not the legal team one might expect a president facing the fight of his political life to select. Starr, after all, made robust arguments during the Clinton impeachment against the assertion of executive privilege and made others for the impeachability of a president for obstructing an investigation into his conduct using privilege claims. Dershowitz has made plenty of arguments against impeaching and convicting Trump in recent years, but he has a habit of staking out positions that are not merely iconoclastic—like that the president may be impeached only for violating the criminal code, or that the Supreme Court could overturn an unjust conviction in an impeachment trial—but intellectually sloppy, too.
Were Trump trying to make a traditional legal argument, he’d have picked the wrong legal counsel. But that’s not what the president is trying to do. CNN describes the president’s merry band as a “Fox News defense team,” noting that the main through line among the lawyers representing Trump is that they have all regularly appeared on the president’s favorite network. It’s not that the president’s legal team lacks talent. Starr was, after all, an esteemed appellate lawyer, a judge on the D.C. circuit, and the solicitor general of the United States. And Dershowitz was a Harvard law professor. But the president isn’t fundamentally making a legal case here. His arguments are that his phone call was “perfect,” that there’s a “deep state” conspiracy against him, and that impeachment is an effort to overturn an election. You don’t need good lawyers to make such silly arguments. You need lawyers who will yell untruths loudly, lawyers whose very presence will argue the us-against-them nature of the president’s defense.
And this is a group of people who do just that. Just by being there, they will make the president feel good, feel validated. Their presence will give expression to his anger, in the same way that Brett Kavanaugh’s tirade against the Senate Judiciary Committee reportedly delighted Trump.
For this reason, the contradiction of choosing Starr to argue in favor of a hyperaggressive vision of executive privilege and against conviction on the basis of obstruction of justice isn’t a problem, just as Dershowitz’s lazy argumentation and Cipollone’s hyperventilating outrage aren’t problems either. They’re the whole point. Flaunting the dissonance of having Starr defending a president in an impeachment trial is itself an expression of rage and defiance against the president’s critics—including, one must imagine, Hillary Clinton, whom both Starr and Ray investigated. It’s a legal team designed to own the libs, and the fact that Dershowitz has been accused of perpetrating misconduct against women (allegations he denies), and Starr of mishandling an investigation into such allegations, is perhaps no coincidence.
To the extent that there is an argument in the president’s defense, it’s that the president’s rage is more important than building a systematic legal case. Putting together a legal brief, after all, depends on a system of mutual understanding between the writer and the audience. The goal is to convince a neutral arbiter of the correctness of one’s point, within a structure of traditions and constraints. Trump’s howl of anger is a declaration that he doesn’t need to convince any arbiter, abide by any constraints, or reach any understanding, because his own emotions are the most important thing.
But the flip side of Trump’s insistence on his own preeminence is his grasping need for other people to reaffirm him. And so the president’s defense, the argument and the team alike, has another purpose: It’s a message to Republican senators. It says to each of them that no, the White House will not make a factual argument on the merits of the case—not a real one, anyway. And no, it will not make a real legal argument either. It, rather, will announce that, per George Orwell, two plus two equals five. And it will demand of the senators that they get in line to endorse that proposition, preferably on television, where the president can see. It will be a failure of loyalty if they are not willing to do this. And they will be subject to retaliation.
It’s not a strategy that would work in court. But the Senate is not, at the end of the day, a court—even when it’s sitting as the trial court of an impeachment. The Senate is a body composed of people who, as the past few years of Republicans’ willing subjection to Trump have shown, are exquisitely sensitive to this sort of pressure.
And the more absurdly bombastic the defense gets, the stronger this message becomes.
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