Senate Republicans can acquit Trump — but they cannot defend his conduct

Here’s what they teach in law school about defending clients: When the facts are against the client, argue the law; when the law is against the client, argue the facts; and when both are against the client, pound your fists on the table.

These days the White House and congressional Republicans are doing a lot of table pounding. “Star chamber,”witch hunt,”lynching" and “coup,” are just a few of their epithets for the Democrats’ impeachment inquiry.  

But table pounding isn’t helping President TrumpDonald John TrumpFive takeaways from the Democratic debate As Buttigieg rises, Biden is still the target Leading Democrats largely pull punches at debate MORE and his supporters find a credible way to factually or legally defend Trump’s conduct in asking Ukraine President Volodymyr Zelensky during their July 25 telephone call to investigate former Vice President Joseph Biden and his son Hunter. It’s not for lack of trying.


Acting White House Chief of Staff Mick MulvaneyJohn (Mick) Michael MulvaneyDefense official testifies Ukraine was aware of issues with aid in July Sondland brings impeachment inquiry to White House doorstep Overnight Defense — Presented by Boeing — Senate eyes sending stopgap spending bill back to House | Sondland delivers bombshell impeachment testimony | Pentagon deputy says he didn't try to block official's testimony MORE argued that there is nothing wrong with a president withholding vital aid to an ally unless it agrees to advance his personal political agenda (“get over it”). That defense lasted barely a few hours before it was withdrawn, possibly because it sounded too much like a confession.

Trump argued that he has a right, if not an obligation, to investigate corruption everywhere, including the Bidens in Ukraine. The problem is, no one has found evidence of corruption by either Biden that would justify an investigation. In fact, the only suggestion of corruption in this affair concerns Trump’s back channel team in the Ukraine. Trump attorney Rudy GiulianiRudy GiulianiBiden: Impeachment hearings show 'Trump doesn't want me to be the nominee' Sondland brings impeachment inquiry to White House doorstep FBI sought interview with whistleblower at heart of impeachment probe MORE is under criminal investigation and his two associates with Ukraine ties are under indictment for campaign finance violations, which is pretty awkward for the president’s argument. 

Sen. Lindsey GrahamLindsey Olin GrahamGraham: Report on alleged surveillance abuse in 2016 to be released Dec. 9 McConnell hopes Senate impeachment trial 'not too lengthy a process' Hillicon Valley: Progressives oppose funding bill over surveillance authority | Senators call for 5G security coordinator | Facebook gets questions over location tracking | Louisiana hit by ransomware attack MORE (R-S.C.) claims that there is no evidence of a “quid pro quo,” which is Latin for “this for that,” between American military aid and Trump’s request in the July 25 call for an investigation of the Bidens. Well, as the president says, “read the transcript.”

In the summary of the call, Trump emphasized that “we do a lot for Ukraine,” which can only mean military and other assistance. He then appears to complain that it hasn’t been “reciprocal,” and then asks Zelensky to “do us a favor” by investigating the Bidens. “Reciprocal” sounds an awful lot like Trump sought a quid pro quo agreement — aid for dirt on the Bidens. There can be a quid pro quo arrangement even without pressure, although the inherent pressure on Zelensky seems pretty obvious.   

That interpretation of the call summary was reinforced by Gordon D. Sondland, the U.S. ambassador to the European Union. In a just-released declaration in the House impeachment inquiry, Sondland, a Trump loyalist, acknowledged telling a Ukrainian official that American military aid was “linked” to Ukraine publicly pursuing the Biden investigations.  


Some argue that impeachment is unwarranted because the aid was ultimately released. But Trump did his level best to rig the 2020 election by turning Ukraine into a division of his reelection campaign. In light of his past conduct, there is a real risk that, absent impeachment and removal from office, he will do it again. 

After all, according to the Mueller report, the Trump campaign was “receptive” to Russian assistance in the 2016 election. Trump stated in an interview with ABC News’ George StephanopoulosGeorge Robert StephanopoulosLawmakers spar over upcoming Sondland testimony GOP rep on impeachment: 'I think the evidence is crumbling' Senate Republicans can acquit Trump — but they cannot defend his conduct MORE that if a foreign country offered him dirt on a political opponent “I think I’d take it,” and even publicly asked China to investigate the Bidens.

Some Trump defenders argue that the president can’t be impeached unless he violated a criminal statute. In fact, by a large majority, constitutional scholars contend otherwise.  

A decade ago, a Republican congressman ably explained the meaning of the phrase “high crimes and misdemeanors” in the impeachment clause of the Constitution. Approvingly quoting a constitutional law professor, he said, “This business of high crimes and misdemeanors goes to the question of whether the person serving as president of the United States put their own interests, their personal interests, ahead of public service.”

The congressman who said that was Mike Pence (R-Ind.), and it very much describes Trump’s indefensible conduct.  

Gregory J. Wallance was a federal prosecutor during the Carter and Reagan administrations. He is the author most recently of “The Woman Who Fought An Empire: Sarah Aaronsohn and Her Nili Spy Ring.” Follow him on Twitter @gregorywallance.