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 end of the White House’s opening arguments are Thomas Jipping, senior legal fellow at the Heritage Foundation and former chief counsel on the Senate Judiciary Committee; and Jennifer Taub, professor of Law at Vermont Law School.
WASHINGTON (CN) – After six days of opening arguments in President Donald Trump’s impeachment trial, senators are preparing to enter the phase of the trial where they will be able to ask questions submitted through Chief Justice John Roberts.
Thomas Jipping, the deputy director of the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation, has a question he would pose if he were in the chamber about what he says remains a weakness in the House case.
“The articles claim that this was soliciting interference in this election — that that’s why he did what he did,” Jipping told Courthouse News in an interview. “His critics said that often and people probably assume that, but there’s no evidence for it. When a prosecutor charges a specific intent crime, they have to prove intent. We all know what he did. He wasn’t impeached for that. The thing that transforms what he did into an impeachable offense is that corrupt motive. That’s what the impeachment articles say and senators ought to hold the House to their proof, and there isn’t any.”
Do you have any takeaways in particular from the Trump defense team’s presentation today?
JIPPING: I don’t think that the president’s team provided any new arguments necessarily, but I think they’ve done a pretty good job of bringing together either pieces of arguments or arguments that have been expressed in different ways in order to kind of in one piece respond to the articles of impeachment.
What comes to mind, for example, is the Office of Legal Counsel opinion, things like this that are part of the picture and help to bolster or to fill out the context for decisions and actions that the president took, although they’re not brand new arguments.
TAUB: My main reaction to today’s proceedings was, thank goodness that’s over. This final day of defense arguments ends what has been a shameful three-day display of cynical, sloppy, and dishonest lawyering.
In an unexpected gift to the House managers today, Jay Sekulow addressed John Bolton’s forthcoming book. Sekulow said, “You cannot impeach a president on an unsourced allegation.” A foolish move on his part, as this statement will be used by the House managers during the coming days’ Q&A period to emphasize why even the defense believes we must hear from Bolton under oath. Today, a Quinipiac poll reported that 75% of registered voters believe witnesses should testify.
Looking at the bigger picture, how do you think the Trump defense did across all three days of arguments?
JIPPING: Unlike the House managers, I think the Trump defense team, particularly with Judge [Ken] Starr and Professor [Alan] Dershowitz, they provided, in addition to speaking directly to the articles of impeachment and to some of the more technical legal issues, they provided a constitutional context for what’s going on. Because this ought to be about more than just immediate political priorities. It ought to be about more than simply splitting legal hairs, it really should start with a proper understanding of our system of government on the place that impeachment has within that system. And I think providing that perspective I thought was very useful both from Judge Starr and Professor Dershowitz.
TAUB: If asked to provide grades for the defense team as a whole, given that several of the lawyers quite literally lied in front of the chief justice and in the context of a congressional proceeding, some of the team would be in violation of our rules of professional conduct. Those who lied would also possibly guilty of a felony, namely knowingly and willfully making a false statement before Congress in violation of 18 U.S.C. § 1001. And teammates who abetted those falsehoods could also face criminal charges. So, receiving a failing grade would be the least of their problems.
That said, I am not the intended audience for these lawyers’ remarks. Their goals were threefold. First, they are striving to convince the Republicans not to ask for any witnesses by creating enough disinformation and baseless arguments about whether abuse of power can ever be grounds for impeachment. And, these dubious unsupported theories will also help give the Republicans cover when they ultimately acquit the president. Secondly, the defense was trying to confuse and distract the public about who was on trial here.
If anyone tuned in yesterday, they would have been convinced the Senate was planning to remove President Hunter Biden from office. Thirdly, the defense is trying to smear Joe Biden. By trying to make him and his son (and the Kremlin-originated theory) a central part of their “defense,” they are trying to weaken someone who may be Trump’s opponent in the upcoming election. If Donald Trump were grading them on this basis, given his disrespect for professional norms and the rule of law, committing felonies and violating codes of conduct would earn them extra points.
Is there a precedent or argument that was made either from the House or from Trump’s defense team that you could see being cited as a precedent in whatever the next impeachment is?
JIPPING: Well, precedents, when it comes to a political process like impeachment are quite different than precedents in court. You really don’t have such a thing as a legally binding precedent. You might have what you might call persuasive precedent, but when you consider too that the issues involved in each impeachment are very different. The political context in which it arises — which party controls the House and Senate — I mean, there’s so many variables from one to the next. And of course we’ve only had three actual presidential impeachments, that there really isn’t anything like a formal legal precedent that’s being set.
Political precedents are in the eye of the beholder. If you want to cite them you do, and if you want to ignore them, you do. I hope though that some of these broader issues regarding, for example, that impeachment should not be used as a weapon against a political opponent – understanding what impeachment is and the place that it has in our overall structure of government – that’s not being set as a precedent, it ought to already be a precedent, simply because members of the House and Senate swear an oath to support and defend the Constitution.
TAUB: If the Senate fails to convict the president, we have something of greater concern than the next impeachment hearing. The message will be that Trump can cheat including by violating criminal law in order to gain an advantage in the 2020 election, without meaningful consequence.
Now that we move on to the question and answer portion of the proceedings, are there any questions if you were sitting in there that you would like to ask, or that you would like to see senators ask?
JIPPING: President Trump has been impeached for a very specific reason, and that is what the House calls his corrupt motive — soliciting interference in this election. And in my view, there was no direct evidence produced in the House process for that and I would encourage senators to really focus their attention on that. Because that’s the single, central fact on which the impeachment hinges and I do think that from an actual evidentiary standpoint, it’s the weakest.
TAUB: Senators should ask the House managers why it would be important to call each of the following witnesses: John Bolton, Mick Mulvaney, Robert Blair, and Michael Duffey. As part of that inquiry, the senators should seek a summary of what evidence of the president’s actions and mental state each witness would offer. They should also ask what critical documents the House managers [would] like to present as evidence and why these would be important. The reason for this set of questions is to prepare their colleagues and the public for upcoming votes. We expect as early as this Friday, there will be a threshold procedural vote on whether to even permit the senators to vote on inviting specific witnesses to testify in the impeachment trial.
The senators should ask the president’s defense attorneys why the president has never asserted executive privilege regarding any witnesses or document requests yet during the House or Senate proceedings. And whether as a legal matter, they can defend against the argument that the president has already waived privilege by contesting Bolton on Twitter.