The Democrats are winning the argument
The Democrats are winning the argument even though they’ll lose the Senate trial
JANUARY 22, 2020
The beginning of the impeachment trial of President Trump made clear that Democrats have not only the stronger arguments but also the stronger arguers. The House impeachment managers did a masterful job on Tuesday of marshaling the evidence to argue that the Senate needs to hold a real trial complete with witnesses — something that, as they pointed out, has occurred in every previous impeachment trial in history. But knowing they may be stymied by a Senate majority intent on holding a show trial, they made their substantive arguments from the start — and they did so in a way that is likely to convince most voters if not most senators.
The impeachment managers especially shined during impromptu rebuttals. Former assistant attorney general Walter Dellinger joined a chorus of praise for Rep. Adam B. Schiff (D-Calif.): “Schiff is not just good. Today is one of the most impressive performances by a lawyer I have ever seen.” But dazzling as Schiff was, he may have been matched by Rep. Hakeem Jeffries (D-N.Y.). Responding to Trump lawyer Jay Sekulow’s question “Why are we here?”, Jeffries put on a master class in forensics. “We are here, sir, because President Trump corruptly abused his power and then he tried to cover it up,” he said , concluding with a quote from The Notorious B.I.G.: “And if you don’t know, now you know.” The only stumble so far was Rep. Jerrold Nadler’s (D-N.Y.) impolitic accusation that Republican senators were guilty of a “treacherous vote” and a “shameful coverup.” Even some Democratic senators said he had gone too far.
Trump’s lawyers were far worse. They played a bad hand badly. Admittedly, they are handicapped by the inescapable reality that their client is guilty as sin. They can’t seriously dispute that Trump wanted Ukraine to investigate former vice president Joe Biden — the president said as much from the White House lawn. They can’t even dispute that Trump held up military aid to Ukraine to pressure its government into doing what he wanted. Their only defense on the merits is to claim that the president wasn’t concerned with smearing a Democratic rival but with fighting corruption. But that’s an absurd argument to make given that Trump never mentioned fighting corruption in general during his two phone calls with Ukrainian President Volodymyr Zelensky — and given that, as my Post colleague Catherine Rampell notes , he is trying to legalize bribery by American companies.
Still, Johnnie Cochran showed during the O.J. Simpson trial that it is possible to be effective even when the facts are not on your side. You don’t have to resort to outright lying as the president’s lawyers did.
White House Counsel Pat Cipollone claimed on Tuesday that “Not even Mr. Schiff’s Republican colleagues were allowed into the SCIF” — referring to the Sensitive Compartmented Information Facility in which the House Intelligence Committee conducted depositions of witnesses. False. The 48 Republican members of the three committees involved in impeachment proceedings had access to the basement SCIF.
Cipollone also repeated the absurd claim that Schiff “manufactured a false version” of the July 25 call between Trump and Zelensky. False. Schiff did not deceive anyone about a partial transcript that had already been made public. Schiff said at the time, “Shorn of its rambling character and in not so many words, this is the essence of what the president communicates.”
Making his own contribution to this blizzard of bunkum, Sekulow claimed that “the president was denied the right to cross-examine witnesses … denied the right to access evidence … and denied the right to have counsel present at hearings. That’s a trifecta, a trifecta that violates the Constitution of the United States.” False. The president was offered a chance to have his lawyers participate in House proceedings and declined to take it.
Sekulow also claimed that the Mueller report exonerated Trump of obstruction of justice. False. The report showed that the elements of obstruction were present.
But these are relatively inconsequential whoppers compared with the biggest lie of all. This is the oft-repeated claim that a president can only be impeached for breaking the law — not for abuse of office. Not even Jonathan Turley, the star Republican witness during the House Judiciary Committee’s impeachment hearing, is buying it. He wrote in Wednesday’s edition of The Post: “It is a view that is at odds with history and the purpose of the Constitution. While Framers did not want terms such as ‘maladministration’ in the standard as dangerously too broad, they often spoke of impeachable conduct in noncriminal terms.” Many of the president’s defenders, including his lawyer Alan Dershowitz and Attorney General William P. Barr , have made similar arguments in the past. They have only taken the contrary position today because it is more politically convenient to embrace a lie than to grapple with the terrible truth.
It should be no surprise that the lawyers representing a president who has made more than 16,241 false statements since taking office should resort to their own lies — and it won’t matter for the president’s die-hard supporters. The Fifth Avenue Republicans will back Trump no matter what. But a recent CNN poll found that 51 percent of Americans think Trump should be convicted and 58 percent think he abused his power. The transparently false arguments by Trump lawyers will not convince those majorities that they are wrong. The Trump team will win an acquittal in the Senate no matter how badly they argue but, on the present trajectory, they won’t win in the court of public opinion.