26/09/2020

At its core, his submission represents an attack on the impeachment process — and on the Constitution itself.

Trumps answer did neither, not in any serious way. His arguments are wrong on the facts and wrong on the law, but thats not the worst part. At its core, his submission represents an attack on the impeachment process and on the Constitution itself.
The answer doesnt bother to present any coherent factual response to the impeachment charges. Instead, it declares that Trump categorically and unequivocally denies each and every allegation. 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.
Beyond that, on the facts, Trumps answer presents only a few bare conclusions, pointless irrelevances and outright misstatements. It tells us, once again, that Trumps July 25, 2019, call with President Volodymyr Zelensky of Ukraine was perfectly legal and completely appropriate. Trump raised the important issue of Ukrainian corruption, the answer asserts. Read the transcript, as the president might say. He did not.
The answer claims Ambassador to the European Union Gordon Sondland and Sen. Ron Johnson (R-Wis.) actually exonerate Trump. Why? Because they say Trump said after the whistleblower complaint was made that he would never demand a quid pro quo. But thats not proof, just Trump justifying himself. The security assistance was sent, all without the Ukrainian government announcing any investigations, the document goes on to say. Yes two days after the House announced it was investigating the Ukraine matter.
As for the law, the answer claims, in the most cursory fashion, that the first Article alleging abuse of power fails on its face to state an impeachable offense. In particular, the answer asserts the abuse of power article alleges no crimes at all, let alone high Crimes and Misdemeanors, as required by the Constitution.
That argument ignores that 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 officials breach of duty to put the public interest first constitutes an impeachable, removable offense.
Even if a statutory crime were required, the Houses charge that Trump tried to solicit a personal benefit (Ukraines 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.
What the answer really tries to do, however, above all else, is to attack the very legitimacy of this impeachment and of impeachment generally. Echoing White House counsel Pat Cipollones Oct. 8, 2019, letter to House leaders, Trumps answer complains that the House proceedings were a one-sided process that was lawless and violated basic due process and every principle of fairness.
Even if that were true, it wouldnt matter. The Constitution makes the House the charging body in the impeachment process, like a grand jury. By vesting in the House the sole Power of Impeachment, the founding document makes it wholly the Houses business how to decide whether to impeach a president.
But it isnt 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.
Even beyond that, by the plain terms of the Constitution, the House isnt the place to hear and weigh all the evidence. Because the Constitution provides that its the Senate thats vested with the sole Power to try all Impeachments. Weighing all the evidence is what a trial is for in the Senate.
Worse yet, though, is the answers rhetorical attack on the Constitutions ultimate method of ensuring that presidents comply with the law. Trumps impeachment is a dangerous attack on the right of the American people to freely choose their president. Its a brazen and unlawful attempt to overturn the results of the 2016 election and interfere with the 2020 election. Removal would mean nullifying an election and subverting the will of the American people.
Thats as close as you can get to saying without saying that, because Trump was elected or stands for election again, he cant be impeached or removed no matter what he did. But the same could be said for any president. If taken to its logical conclusion, Trumps rhetoric about nullification and subversion of the peoples will would mean no president could ever be held to account by impeachment and every president, in effect, is above the law.
Read more:
Harry Litman: Dershowitz and Starr may bring a slightly more reality-based Trump defense
George Conway: Why Trump had to hire this legal odd couple
Jennifer Rubin: Five guidelines for the House impeachment managers
Max Boot: Trump would never go for a plea bargain, so it looks like jury nullification is his only option
Letters: Trumps trial is a high-stakes, historic showdown
Laurence Tribe: Trumps lawyers shouldnt be allowed to use bogus legal arguments on impeachment