The impeachment trial of Donald Trump started last week. The House managers presented a very thorough case. Now it is the time for the defenders of the president to speak. Fair enough.
So, what should they say? Well, let’s look at what the House has presented and see how they can respond.
The House case focuses first on the withholding of aid to Ukraine and the withholding of a meeting in the Oval Office with the president of the Ukraine. Both are important to the Ukraine for what should be obvious reasons. Ukraine is partially occupied and is at war with Putin’s Russia. Not to belabor the point but again. Ukraine is partially occupied and at war with Putin’s Russia.
So, the Ukraine desperately needs military help. Which the Congress and the president have given them.They also just as desperately need Putin to understand that the US stands with Ukraine against his illegal occupation and aggression. So, both the military and political aid are essential.
It is a fact that the Department of Defense was ready to start to distribute the military aid to Ukraine on June 18, 2019. From the DOD website:
“The Department of Defense announced today plans to provide $250 million to Ukraine in security cooperation funds for additional training, equipment, and advisory efforts to build the capacity of Ukraine’s armed forces.” ……https://www.defense.gov/Newsroom/Releases/Release/Article/1879340/dod-announces-250m-to-ukraine/
The DOD does not release any military aid unless a thorough review has been done to make sure the country is meeting the requirements for fighting corruption, insuring human rights, etc.
So, for the president’s Defense Team. The first point they need to address is why the military aid was withheld. What information came to light between June 18 and the hold on the aid? There may be legitimate reasons for withholding aid, if so, what were they? And why was the very process for withholding aid taken out of the usual channels and handed over to a political appointee, rather than a career official?
Along the same lines, the defense may argue that the president can unilaterally withhold aid for any reason. In fact, the aid was held up 9 different times, with no explanation. However, the Government Accounting Office relayed a decision that what Trump did was break the law. A law that requires him to notify Congress with reasons for any hold up in aid:
“In the summer of 2019, the Office of Management and Budget (OMB) withheld from
obligation funds appropriated to the Department of Defense (DOD) for security
assistance to Ukraine. In order to withhold the funds, OMB issued a series of nine
apportionment schedules with footnotes that made all unobligated balances
unavailable for obligation.
Faithful execution of the law does not permit the President to substitute his own
policy priorities for those that Congress has enacted into law. OMB withheld funds
for a policy reason, which is not permitted under the Impoundment Control Act (ICA).
The withholding was not a programmatic delay. Therefore, we conclude that OMB
violated the ICA….”
Click to access 703909.pdf
So, the president or his staff broke the law. Period. His defense team needs to explain that and justify the hold on military aid. Why did the president think it was essential to break the law? Perhaps he had good reason.Legal reasons. What were they? And why was Congress never notified?
Furthermore, since aid was eventually released they need to answer another question. What happened to make the president change his mind and lift the hold? What new evidence emerged? Did he discover it was illegal or was there a change in Ukraine? What specific reason was there for all of a sudden releasing most of the aid?
The second charge on impeachment brought by the House managers was the obstruction of Congress. Now, it is pretty obvious that Congress was obstructed since the president refused to provide and documents or witnesses to help in the investigation. The question is, was that obstruction legal?
On Saturday the president’s team argued that the entire impeachment proceeding was illegal. So, since the proceeding was illegal they had no requirement to cooperate. Of course, this argument does have a major hole.
The position presupposes that the executive branch alone can decide for the House of Representatives what it can and cannot investigate. In other words, although the Constitution gives the sole power of impeachment to the House, the executive branch can overrule that power. The position falls flat on two levels. First, it disregards the specific language of the Constitution.
Article 1, Section 2: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
Of course it makes no sense legally or logically for the object of an impeachment or investigation to have the power to end an impeachment or investigation.
Along the same lines the president’s defense claimed that the House violated their own rules, so therefore the very impeachment itself is illegal. Yet, here we are. The Senate, controlled by Mitch McConnell, recognized the legality of impeachment. The Supreme Court, along with Chief Justice Roberts, recognizes the legality of the impeachment. We are having a trial precisely because the House acted legally. So, once again we have the president, alone, making claims that no other branch of government agrees with.
Now, it is legal for the president to, in certain circumstances, invoke “executive privilege”. However, invoking that privilege means the president has to make a case, before a court, that the documents or testimony being withheld is being done for legitimate national security concerns. So far, Mr Trump has made no such claim.
His lawyers, however, have taken the position that he can claim executive privilege without making a formal claim of executive privilege. In their words, he can hide anything he wants for any reason he wants. In other words, the chief executive is supreme and cannot be investigated or impeached. Trump has taken this position publicly:
“…Trump was giving a speech at a Turning Point USA conference, where he predictably veered off into a tirade about special counsel Robert Mueller’s Russia investigation and how, as president, Trump could’ve stopped it.
“I have an Article 2 where I have the right to do whatever I want as president,” Trump said. “But I don’t even talk about that because they did a report and there was no obstruction.”…”
“…During a pre-taped one-on-one interview with ABC News reporter George Stephanopoulos, Trump argued that “a lot of great lawyers” agree that Article 2 of the Constitution means that the President can’t obstruct justice.
“So a president can’t obstruct justice?” Stephanopoulos asked.
“A president can run the country,” Trump responded. “And that’s what happened, George. I run the country and I run it well.”
“When the President does it, it’s not illegal?” Stephanopoulos asked….”
“I’m just saying a president under Article 2–it’s very strong, read it,” Trump said. “Do you have Article 2? Read it.”
(To be clear, executive privilege is not mentioned in the Constitution)
Trump Claims Article 2 Gives Him ‘The Right To Do Whatever I Want As President’
Trump When Asked If POTUS Can Obstruct Justice: POTUS Can ‘Run The Country’
So, the president’s defense team will have to find a justification that he has refused to cooperate with Congress. While they may rightly point to very specific instances where other president’s have attempted (successfully or unsuccessfully) to invoke “executive privilege”, they will have to justify an unbridled power of the president to hide all his actions and documents.
Now, will the defense team address these issues raised by the House managers? Will they respond to the facts and evidence in the charges? Will they talk about how the Democrats have hated Trump from day one? Will they talk about Adam Schiff? Will they talk about the Mueller Report being a hoax? Will they claim the entire procedure is a “witch hunt”? Or will they talk about how corrupt the Biden’s are? Benghazi Redux?
In other words, will they address the points the Hose manager have made, or will they deflect ? Isn’t the answer obvious?