Attorneys representing President Donald Trump in the imminent Senate impeachment trial filed a legal memo on Monday disparaging the articles of impeachment and the process by which they were passed in the House of Representatives. The memo elicited strong reactions, with some arguing that this was no legal brief at all.
What the brief said at length.
“The Articles of Impeachment now before the Senate are an affront to the Constitution and to our democratic institutions,” read the opening sentence of the Executive Summary, setting a tone that is maintained throughout the 171-page memo. It was long on invective and light on objectivity.
“The Articles themselves—and the rigged process that brought them here—are a brazenly political act by House Democrats that must be rejected,” the brief continued. “They debase the grave power of impeachment and disdain the solemn responsibility that power entails. Anyone having the most basic respect for the sovereign will of the American people would shudder at the enormity of casting a vote to impeach a duly elected President.”
The memo claimed that the impeachment inquiry conducted by congressional investigators failed to prove anything except that “the President did absolutely nothing wrong” despite House Democrats violating “every precedent and every principle of fairness” established by the Constitution and previous presidential impeachments.
“House Democrats jettisoned all precedent and principle because their impeachment inquisition was never really about discovering the truth or conducting a fair investigation,” the memo stated. “Instead, House Democrats were determined from the outset to find some way—any way—to corrupt the extraordinary power of impeachment for use as a political tool to overturn the result of the 2016 election and to interfere in the 2020 election. All of this is a dangerous perversion of the Constitution that the Senate should swiftly and roundly condemn.”
The memo contained factual inaccuracies, falsehoods, and questionable statements of fact.
For example, Trump’s attorneys called the memo of the president’s July 25 phone call with Ukrainian President Volodymyr Zelensky a “transcript” more than 20 times, despite the actual document in question clearly noting that it is “not a verbatim transcript.
It also falsely accused attorney Mark Zaid of assisting the whistleblower with the preparation of the initial complaint about the Trump-Zelensky call. Zaid actually began representing the whistleblower more than a month after the complaint was submitted (the Intelligence Community Inspector General received the complaint on Aug. 12, 2019; Zaid announced that he joined the whistleblower’s legal team on Sept. 21, 2019).
— Mark S. Zaid (@MarkSZaidEsq) January 20, 2020
Trump’s attorneys also repeatedly referred to U.S. Ambassador to the EU Gordon Sondland’s congressional testimony about a phone call in which Trump allegedly said he wanted “no quid pro quo” — despite mounting evidence that such a call never actually happened.
White House Memo relies four times on Sondland call where Trump said, "I want no quid pro quo."
Except that call did not happen.
And the call that Sondland referred to proves the very opposite.
— Ryan Goodman (@rgoodlaw) January 20, 2020
The remainder of the legal brief broke down Trump’s legal defense into four core arguments.
Trump’s attorneys argued that “abuse of power” and “obstruction of Congress” are not impeachable offenses.
“House Democrats’ novel theory of ‘abuse of power’ improperly supplants the standard of ‘high Crimes and Misdemeanors’ with a made-up theory that would permanently weaken the Presidency by effectively permitting impeachments based merely on policy disagreements,” the brief said. “By limiting impeachment to cases of ‘Treason, Bribery, or other high Crimes and Misdemeanors,’ the Framers restricted impeachment to specific offenses against ‘already known and established law.’”
This is a novel interpretation of the Constitution’s impeachment clause that is contradicted by the majority of legal experts and the available historical record. University of North Carolina School of Law Professor Carissa Byrne Hessick was “baffled” by the argument, which she said requires a reading of the Constitution that is simple implausible.
At the time the Constitution was written (and for some time after), there was no federal statute criminalizing bribery.
So the only plausible way to read this segment of the memo is as a concession that the violation of a common law crime can be enough for impeachment.
— Carissa Byrne Hessick (@CBHessick) January 20, 2020
The memo also claimed that obstruction of Congress is a “frivolous and dangerous” claim that would irreparably damage the separation of powers.
According to the memo, Trump directing White House officials not to testify before Congress was actually the President asserting the “legal rights and privileges of the Executive Branch against defective subpoenas,” and further cited executive privilege as making senior advisers “immune from compelled testimony before Congress.
Anti-Trump lawyer George Conway promptly responded to the memo by saying it “doesn’t bother to present any coherent factual response to the impeachment charges.”
“Instead, it declares that Trump ‘categorically and unequivocally denies each and every allegation,'” he wrote. “Is Trump denying, say, that he demanded that Ukraine announce it was investigating the Bidens? Or that he ordered documents to be withheld and witnesses not to testify before Congress? The evidence to the contrary is overwhelming.”
Harvard Law Prof. Laurence Tribe saw Conway’s take and piled on, calling the memo “garbage dressed up as legal argument.”
“[Conway] has said almost exactly what I wanted to say upon reading this garbage dressed up as legal argument. Any lawyer taking part in this charade either has no real concern for our country or is a fool — or both. A shameful performance,” he commented. House Democrats sought and utilized Tribe’s input during the impeachment inquiry. He once said Trump’s impeachment should begin on Inauguration Day.
Watergate prosecutor Jill Wine-Banks noted that the brief “ignores” that U.S. Government Accountability Office (GAO) “conclusion that he did violate federal law. Also ignores that no such crime is required for impeachment.”
The hits kept on coming.
President's lawyers: Impeachment was a rigged process all about a perfect phone call. It's like Presidential tweets reformatted to look like a legal document. https://t.co/H7gvaC3O17 pic.twitter.com/VSd0N5DMBh
— Orin Kerr (@OrinKerr) January 20, 2020
2) Even the legal historian who comes closest to supporting some (and only some) of this brief's arguments (the impressive @nikobowie) agrees that "misconduct in office is a common law offense."
See his screenshot with citations below.
H/t @EricColumbus https://t.co/WiuDxUmuSc
— Jed Shugerman (@jedshug) January 20, 2020
Entirely unmentioned, and therefore undefended, in Trump's impeachment brief: the time Trump tried to get Zelenskyy to investigate the insane conspiracy theory that CrowdStrike hid the evidence that Ukraine, rather than Russia, actually hacked the DNC. https://t.co/KlFpNB8qpx pic.twitter.com/FhdmXfSYh9
— Gabriel Malor (@gabrielmalor) January 20, 2020
Here is the ultimate takeaway from the White House brief: not only was everything perfect and legal, but the president should always be allowed to do this and has every intention of doing so again in the future.
— Bradley P. Moss (@BradMossEsq) January 20, 2020
The memo argued that the House impeachment inquiry was “irredeemably flawed” on process grounds.
“No committee can investigate pursuant to powers assigned by the Constitution to the House— including the ‘sole Power of Impeachment’—unless the House has voted to delegate authority to the committee,” Trump’s lawyers wrote. “Here, it was emblematic of the lack of seriousness that characterized this whole process that House Democrats cast law and history aside and started their purported inquiry with nothing more than a press conference.”
This legal argument is predicated on a 37-page memo from the DOJ’s Office of Legal Counsel which appears to have been authored Sunday.
White House brief has 37-page OLC memo, dated yesterday, in its appendix. It concludes that subpoenas issued prior to 10/31/19 are invalid because there was not a formal impeachment inquiry vote. pic.twitter.com/iN53LDZhjC
— Andy Grewal (@AndyGrewal) January 20, 2020
The final two arguments claimed that Democrats have produced “no evidence to support their claims,” and that the articles of impeachment are “structurally deficient.”
You can read the full memo below, if that’s what you really want to do:
[Image via Jim Watson/AFP/Getty Images]