Trump Lawyers Rely on Past for Impeachment Defense

WASHINGTON (CN) — Everything old is new again.

Kenneth Starr, once the independent counsel leading the charge to impeach President Bill Clinton, returned to the Senate Monday to make the case that impeachment is a divisive, overused political weapon.

“Instead of a once-in-a-century phenomenon, which it had been, presidential impeachment has become a weapon to be wielded against one’s political opponent,” Starr said as part of opening arguments in Senate trial to remove President Donald Trump from office.

Ken Starr, an attorney for President Donald Trump, speaks Monday during the impeachment trial against Trump in the Senate. (Senate Television via AP)

The White House attorney who frequently appears on Fox News as commentator went on to opine that America now lives in the “Age of Impeachment.” To illuminate his point, Starr drew on Justice Antonin Scalia’s dissent in the 1988 Supreme Court ruling Morrison v. Olson.

That case stemmed from a House directive for the EPA to document the government’s enforcement of waste-site regulations — those files were withheld by then-President Ronald Regan, who directed the organization withhold the records from investigations.

Following a probe of that information, the House Judiciary Committee found former assistant attorney general Theodore Olson deceived lawmakers when testifying about the regulations. The Supreme Court ruled against Olson, saying to reserve the documents as “sensitive,” stripped the president of executive authority.

Starr, a former independent counsel, appeared to revel in Scalia’s lone dissent during opening arguments Monday.

“The word impeachment haunts that dissenting opinion because the statute terms directed independent counsel to become an agent of the House of Representatives,” Starr said. “To what end? To report with a low threshold of information?”

While still attentive, senators quickly slowed their note-taking as Starr recounted the annals of impeachments past. A Senate chamber door attendant and spectators in the visitors’ gallery could be seen dozing during the former federal judge’s statements.

When Starr reminded the Senate that “impeachment in Britain is dead,” Senator Tom Cotton, R-Ark., raised papers to his face to hide a yawn.

Though Starr said there was little popular support for impeachment, a Friday ABC News poll reported 66% of those surveyed want new witnesses called.

Trump’s overall approval rating also dipped to 49% — a 6% increase since late October.

Of 101 respondents asked about the House’s impeachment inquiry, 58 disapproved of the president’s reaction. Only 34 individuals approved of the president’s response.

At oral arguments Monday, defense attorney Jay Sekulow reiterated the position of White House counsel: President Trump acted under clear, constitutional authority when he withheld $391 million in security assistance to Ukraine.

“Asking a foreign leader to get to the bottom of issues of corruption is not a violation of an oath,” Sekulow said.

Michael Purpura, another of Trump’s attorneys, meanwhile spent more than 30 minutes defending the White House’s decision last spring to send Vice President Mike Pence to attend Zelensky’s inauguration. Purpura said Hurricane Dorian had set off a national emergency in the U.S. that required Pence to go in Trump’s stead.

Lev Parnas, the indicted associate of Trump’s personal attorney Rudy Giuliani, offered an alternative theory.

Through his attorney Joseph Bondy in December, Parnas claimed he told a Ukrainian official in the weeks running up to Zelensky’s inauguration that if the announcement into Trump’s political rival wasn’t made, Pence would not attend the swearing-in and aid could stop flowing.

Parnas never testified before the House, however.

“Not a single witness that they compiled and developed under their procedures provided any firsthand evidence that the president ever linked a presidential meeting to any investigations,” Purpura argued from the well of the Senate.

Fiona Hill testified previously that Pence was frequently involved in foreign-policy decisions and often eager to play a role in Ukraine affairs. Under oath, Hill also said she attempted to loop in the Office of the Vice President whenever policy or diplomatic concerns arose.

Hill swore Pence’s office was notified when former ambassador Marie Yovanovitch was abruptly dismissed and when her concerns about Giuliani’s covert diplomatic channels arose. Hill testified that she always wanted to make sure Pence’s office knew of any events related to Ukraine and even warned them to be careful.

While arguments unfolded, the advance copy of former national security adviser John Bolton’s memoir — obtained Sunday by The New York Times — rocked Capitol Hill.

The memoir is said to contain a passage detailing the withholding of military aid at the direction of Trump.

White House Chief of Staff Mick Mulvaney is a central figure in the Ukraine scandal, but his attorney Bob Driscoll released a statement Monday saying his client had “no recollection” of conversations with Bolton.

“John Bolton never informed Mick Mulvaney of any concerns surrounding Bolton’s purported August conversation with the President,” Driscoll said Monday.

Republican Mark Meadows of North Carolina told reporters Monday he believed The New York Times story was leaked by Democrats.

Schiff roundly rejected the claim, saying it came as a surprise to all impeachment managers.

“But I guess that’s the best that Representative Meadows has right now,” Schiff said. “Look, I can understand the reasons why and I think we knew this already, why the president and his allies have wanted to suppress John Bolton’s testimony. They evidently had this manuscript, they understood what John Bolton had to say and they were deathly afraid that the American people would find out.”

Trump’s attorneys began their opening arguments Saturday with a focus on select testimony from witnesses in the House impeachment inquiry. The defense relied heavily on snippets from U.S. Ukrainian Ambassador Bill Taylor and former senior Russia expert to the National Security Council Fiona Hill.

On Monday, relying on partial testimony again — this time from Under Secretary of State for Political Affairs David Hale and Tim Morrison, a former National Security Council adviser — defense attorney Mike Purpura said witnesses’ testimony echoed the president’s concerns with burden sharing of military aid to the country. Purpura played portions of both witnesses’ testimony saying the president had been vocal with these concerns to many administration officials.

“Please keep in mind also, that the pause of the Ukraine security assistance program was far from unusual or out of character to President Trump,” Purpura said. “The American people know that the president is skeptical of foreign aid and that one of his top campaign promises and priorities in office has been to avoid wasteful spending of American taxpayer dollars abroad.”

White House attorney Patrick Philbin focused his argument on the justification to impeach Trump on obstruction of Congress, noting that the executive branch, in previous years whether the administration was Republican or Democrat, freely cited its privilege as a way to brush off subpoenas.

Philbin underscored what he called the inherent difficulties of congressional access to the White House.

“Once someone is compelled to sit in the witness seat and start answering questions, it’s very hard for them to protect that privilege,” Philbin said.

Building a case for precedent, Philbin also recalled that President George W. Bush claimed executive privilege over the testimony of Harriet Miers after the firing of nine former U.S. attorneys. Miers served as Bush’s White House counsel in 2008.

Although Bush lost the claim, the decision was stayed on appeal. Philbin said this could indicate doubt about the constitutionality of the initial ruling or show that the appeal was likely to succeed.

“Any resistance to their subpoena is obstruction,” Philbin lamented.

Other cases invoking executive privilege, like those involving Presidents Richard Nixon and Bill Clinton didn’t fare well for either president.

The next legal test will be decided when a federal judge rules on whether former White House counsel Don McGahn must comply with House subpoena.

A point omitted over several hours of defense presented Monday is rather significant: Trump never actually invoked executive privilege over the officials requested for witness testimony.

Senator Richard Blumenthal, D-Conn., told reporters Monday that Trump never invoked executive privilege because he knows it likely wouldn’t be valid.

“Their pitch was, it’s basically he can invoke executive privilege whenever he wants, as broadly as he wishes and never be essentially challenged in court because their argument in court has no jurisdiction here,” Blumenthal said.

If put to the test in court, a judge may be inclined to weigh evidence already in the public record: Trump’s multitude of tweets where he openly discussed his thoughts and reactions and responses to conversations with current and former administration officials.

As lead house impeachment manager Schiff predicted at the close of his team’s argument’s last week, Joe Biden came into sharp focus Monday.

Defense attorney Eric Herschmann directed the senators’ attention to claims of unresolved corruption that occurred at Ukrainian gas company Burisma Holdings undertaken by Joe Biden and his son Hunter.

First, Herschmann argued Biden demanded the firing of Ukraine prosecutor general Viktor Shokin in 2015 in order to benefit his son, Hunter, who Shokin claimed was at the center of a corruption scandal at Burisma.

On the July 25 call with Zelensky, Trump suggested the former vice president “went around bragging” that he stopped Shokin from looking into Hunter.

Indeed, Joe Biden did boast of the Obama administration’s successful ousting of Shokin at a Council on Foreign Relations summit in 2018, but his comments weren’t related to prosecution involving Burisma.

Instead, Biden extolled the administration’s firm position on withholding U.S. loans if the corrupt Shokin remained in office. Shokin’s removal was also lauded by the International Monetary Fund and the World Bank, which agreed that Shokin was too soft on corruption.

Pam Bondi, another defense attorney representing Trump, undercut the White House argument on Monday by noting that Hunter Biden first joined Burisma’s board in April 2014 — after the United Kingdom had already opened a money laundering investigation into Burisma’s owner, oligarch Mykola Zlochevsky, not Hunter Biden.

“The House managers say the investigations had been debunked, they were sham investigations. So now we have the question: were they really?” Herschmann said. “There’s no question any rational person would like to understand what happened.”

As the second day for defense wound down, White House attorney Alan Dershowitz underlined the argument that Trump’s impeachment is invalid because the charges do not rise to the threshold of criminality, let alone treason or bribery. 

Pointing to the 1868 impeachment of President Andrew Johnson, Dershowitz acknowledged that Johnson, like Trump, was a figure who generated divisive feelings among senators.

Johnson was accused of having a “hateful approach” toward Congress when impeached and the 17th president believed he was not obliged to follow congressional legislation.

But Johnson’s defense argued these factors did not give rise to treason or bribery, the core components comprising high crimes and misdemeanors necessary to impeach. 

If a president were to receive or give a bribe outside of the U.S. and outside of a statute of limitations, Dershowitz offered, he could not be prosecuted but he could be impeached because he committed the actual crime of bribery.

Extortion, perjury and obstruction of justice would be impeachable offenses as well because they are “akin to” treason and bribery, Dershowitz said. 

“This isn’t legal claptrap,” Dershowitz said in his defense of Trump. “This premise was accepted by the Founders … If this is not accepted by academics today, that shows a weakness of today’s academics, not the Founders.”

The Dershowitz of 1998 might not recognize the Dershowitz of 2020. 

Twenty-two years ago, Dershowitz said the only criteria necessary to impeach a president for abuse of power was if it could be proved that he abused the public trust of that office. 

At the time, Dershowitz said, “if you have somebody who completely corrupts the office of President and who abuses trust and poses great danger to our liberty, you don’t need a technical crime,” to impeach them. 

On Monday night, Dershowitz heralded a much different message.

“I’m sorry House managers, but you just picked the wrong criteria,” he said.  

Senator Sheldon Whitehouse, D-R.I., was far from agreement with Dershowitz. 

“He opened with a false statement, which was that the standard of decision here is beyond a reasonable doubt, showing his criminal law background. The parliamentarian will confirm, as we all know, that that is not the standard,” Whitehouse said. “So when you open with something everybody in the room knows is false, it’s kind of a long downhill.” 

Whitehouse also questioned the Harvard law professor’s argument that the standard must be based in criminality. 

“How is it then that you don’t look at intent when criminal intent mens rea is the heart of criminal law?” Whitehouse said.

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