The Worst Thing About Trump's Answer to the Impeachment Articles

By George Conway, The Washington Post

21 January 20

resident Trump’s lawyers have begun to lay out their defense to the articles of impeachment. Their 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.

On Saturday, the president’s lawyers filed their “answer” to the articles of impeachment. In legal parlance, an answer is a document filed at the beginning of a proceeding in which the defending side gives its response to factual allegations and lists the basic grounds for its defense. On Monday, they doubled down with a 100-page trial brief setting forth his full defense.

Trump’s answer doesn’t bother to present a coherent factual response to the impeachment charges. Instead, it relies on bare conclusions, pointless irrelevancies and outright misstatements — including whether Trump “raised the important issue of corruption” in his July 25 phone call with Ukraine President Volodymyr Zelensky. Read the rough transcript: He didn’t.

The brief adds little in the way of substance. It emphasizes that Zelensky claimed that he faced “no pressure” to launch an investigation that might help Trump in his presidential campaign. But, of course, Zelensky and Ukraine faced potential retaliation from Trump were he to say otherwise. Trump’s record of support for Ukraine is “beyond reproach,” the brief contends. Well, yeah, if you ignore that Trump froze the aid 91 minutes after making his improper request.

Oh, and Trump had “concerns” about Ukrainian corruption. Funny, though, how the only supposed “corruption” he ever talked about had to do with Hunter Biden, and that he never cared about it until former vice president Joe Biden announced his run for the presidency.

As for the law, the answer claims, in the most cursory fashion, that the “abuse of power” charge, at least as alleged here, "fails to state an impeachable offense.” It asserts that the abuse of power article “alleges no crimes at all, let alone ‘high Crimes and Misdemeanors,’ as required by the Constitution.” Trump’s brief gets even more explicit: An impeachable offense must involve a “violation of established law” — specifically, “criminal law.”

That’s bogus. Legal scholars and historians agree no statutory crime is required by the Constitution for impeachment and that abuse of power is in fact the essence of impeachability: The English parliamentary history upon which the Framers adopted impeachment makes clear that a public official’s breach of duty to put the public interest first constitutes an impeachable, removable offense.

Even if a statutory crime were required, the House’s charge that Trump tried to solicit a personal benefit (Ukraine’s announcement of an investigation) in exchange for an official act (releasing the security aid) constitutes bribery, both as understood in the Framers’ time and under the federal criminal code today.

Above all else, though, what Trump’s papers really try to do is to attack the very legitimacy of this impeachment — and, beyond that, of impeachment generally. Trump’s brief complains that the House proceedings were “rigged” in a way that “denied the President any semblance of fair process” and “violated every principle of justice and fairness known to our legal tradition.“

Even if that were true, it wouldn’t matter. By vesting in the House the “sole Power of Impeachment,” the Constitution makes it wholly the House’s business how to decide whether to impeach a president.

But it isn’t true that the process was fundamentally unfair: Members of the Republican minority, hardly afraid of carrying water for Trump, had full opportunity to, and did, cross-examine witnesses and make whatever arguments they deemed worthwhile to make. And if there was any exculpatory evidence to be heard, the White House could have offered it. Instead, Trump did everything he could to block evidence from coming in.

Worse yet, though, are Trump’s rhetorical attacks on the Constitution’s ultimate method of ensuring that presidents comply with the law. Trump’s impeachment, says his answer, represents “a brazen and unlawful attempt to overturn the results of the 2016 election and interfere with the 2020 election.” The brief warns that removing Trump from office on the basis of the violations alleged “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 Founders.”

The Framers justifiably worried about interfering with the will of the voters. But they also worried about abuse of presidential power. And so they included the remedy of impeachment in the Constitution to address precisely the misconduct Trump committed.

If taken to its logical conclusion, Trump’s rhetoric about nullification and subversion of the people’s will would mean no president could ever be held to account by impeachment. The president’s lawyers call the impeachment proceedings “an affront to the Constitution and to our democratic institutions.” Those words, however, aptly describe his position here.