Impeachment Trial Analysis, Day 6: Trump Team Ditches ‘Auctioneering’ House Style for Senate

As President Donald Trump’s impeachment trial unfolds, Courthouse News will be reaching out at the close of each day to prominent attorneys, scholars and other experts in the legal community for analysis on the historic proceedings. Joining us to break down the White House’s opening arguments is Joyce Vance, a professor at University of Alabama’s School of Law who once served as a U.S. attorney in that state.

WASHINGTON (CN) – What a difference between President Donald Trump’s defenders in the House of Representatives and the Senate.

University of Alabama law professor and former federal prosecutor Joyce Vance. (University of Alabama photo)

That was one takeaway shared by Joyce Vance, a law professor and former U.S. Attorney in Alabama, who began our interview emphasizing that she made a conscious effort to keep an open mind about the White House’s arguments for leaving Trump in office. Vance found those arguments unpersuasive.

“What today told me was that the president simply doesn’t have a legitimate argument to put forward that he is not guilty of the conduct charged in the articles of impeachment,” Vance told Courthouse News.

On style, Vance noted Trump’s defenders abandoned the “auctioneering” style of the House for a more austere U.S. Senate, and she also argued that President Trump’s tweet disputing Ambassador John Bolton’s account reported by The New York Times waives claims of executive privilege.

 

What were your impressions of today’s proceedings?

Well, my goal was to have a completely open mind, to listen to the president’s arguments, to sort of bend over backwards to give them full credibility and to evaluate those arguments and whether or not they rose to the level of giving the president a good defense. Not at all from the point of view of somebody, you know, who’s a Democrat, who has not been happy with this president on constitutional grounds. And to see if the president really had good arguments about why he shouldn’t be impeached.

And I found the arguments that were made, even holding to that standard and sort of deliberately counseling myself to give them the benefit of the doubt, to see whether there could be even contested factual issues—just to be deeply disappointed by the level of argument that they’ve brought, because it was in many ways disingenuous. It was based on distorted facts. The legal arguments didn’t make sense and were either inconsistent with positions that the folks who brought them forward had taken previously. or with clearly established law.

So, I found it to be very unsatisfactory because there was a part of me that hoped that even though there’s a strong foundational difference of opinion here among the two sides, that at least the president had a legitimate argument to put forward. And what today told me was that the president simply doesn’t have a legitimate argument to put forward that he is not guilty of the conduct charged in the articles of impeachment.

 

To shift here from the substance to the style of the argument, what we’re seeing here has been very, very different—a far cry from the president’s defenders in the House of Representatives. Do you think that was a conscious choice?

This is definitely a deliberate change in style from the sort of auctioneering approach that we saw in the House. Part of that may be attributable to the fact that we have lawyers presenting arguments in the Senate, rather than members of the House, who in some cases were but in others were not lawyers. Or it may be a deliberate decision perhaps egged on by Senator McConnell, that the rules of the court in the Senate required a different approach. But this was definitely a very different style, much more acceptable for people who are used to listening to a traditional argument. So, yes, a very big sea change in that regard.

 

President Trump tweeted out a denial of John Bolton’s account of what happened. Some legal experts have said that in doing so, he may have waived executive privilege that he might have had over that. Do you agree?

To the extent that there is any legitimate executive privilege there that hasn’t already been waived, yes, I would say that this constitutes a waiver. And it also makes it clear, frankly, that the Senate cannot decide this case without hearing testimony not just from John Bolton, but from other first-hand witnesses. To the extent that the president says, ‘It didn’t happen the way they say it happened,’ then we need to hear from them. More importantly, we need to see the documents that the president has withheld, and also if the president chooses to put forward any testimony, we should hear and consider that as well.

You know, it’s not at all unusual for juries to come to your testimony from two different sides in the case who sharply disagree with each other, and then we leave it up to juries to decide who’s telling the truth. I don’t know why the Senate would want to walk away from that traditional process that has served our legal system so well for more than 200 years.

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