Trump should listen to his lawyers, not his instincts, in Senate trial

What is the president’s defense strategy? Are his lawyers trying to get the impeachment case thrown out without the Senate’s deciding to hear from witnesses and call for additional documentary evidence?  

I have assumed that this would be the defense team’s position. But if it is, that is tough to square with the short responsive submission the president’s lawyers filed with the Senate on Saturday, which was followed on Monday by a lengthy trial memorandum. The president seems to be spoiling for a fight over the Democrats’ detailed factual claims. Inadvertently or not, that helps Democrats. They are trying to exploit the Senate trial, so that it becomes an extension of the House’s rushed investigation, which failed to pursue key evidence and testimony.

After briefly describing the impeachment articles as woefully inadequate to warrant impeachment, conviction and removal from office, the president’s short Saturday submission asserts: “The first Article [which vaguely charges abuse of power] also fails on the facts, because President TrumpDonald John TrumpTrump suggests some states may 'pay nothing' as part of unemployment plan Trump denies White House asked about adding him to Mount Rushmore Trump, US face pivotal UN vote on Iran MORE has not in any way ‘abused the powers of the Presidency.’”


From there, the defense team reiterates the political arguments the White House has made for months: The president’s communications with his Ukrainian counterpart, President Volodymyr Zelensky, were “completely appropriate” and exclusively furthered American “national interest” — including not only the direct phone calls in which the two men participated but “all surrounding and related events.” 

This, obviously, implicates the activities of the president’s underlings and their dealings with Ukrainians. House Democrats contend, with evidentiary support, that these activities amounted to a campaign to pressure Ukraine’s government to open investigations into (a) possible Ukrainian interference in the 2016 election and (b) potential Biden family corruption — in particular, Hunter Biden cashing in on the political influence of his father, then-Vice President Joe BidenJoe BidenTrump denies White House asked about adding him to Mount Rushmore HuffPost reporter: Biden's VP shortlist doesn't suggest progressive economic policies Jill Biden says she plans to continue teaching if she becomes first lady MORE.

The president’s team maintains that there was no quid pro quo, according to both Trump and Zelensky. They insist the record is indisputable on this point — i.e., that the unrebutted testimony is that President Trump told both his ambassador to the European Union, Gordon SondlandGordon SondlandGOP chairman vows to protect whistleblowers following Vindman retirement over 'bullying' Top Democrat slams Trump's new EU envoy: Not 'a political donor's part-time job' Trump names new EU envoy, filling post left vacant by impeachment witness Sondland MORE, and Sen. Ron Johnson (R-Wis.) that he was not drawing, and would “never” draw, a connection between the investigations he wanted Ukraine to conduct and the nearly $400 million in defense aid that he was withholding.

The president’s submission gives a particularly cribbed account of Sondland’s House testimony. In fact, the ambassador surmised that there was a quid pro quo, at least between the president’s expectation that Ukraine would investigate the Bidens and the president’s commitment to host Zelensky. He also reasoned that there had to have been a quid pro quo between Ukraine’s investigation of the Bidens and the transmission of the defense aid. That is, while the president may have uttered words to the effect that there was “no quid pro quo,” the reality is that there was: Sondland told the Ukrainians that there would be a “stalemate” on the defense aid unless Zelensky announced the investigations the president wanted.

To repeat, this does not change the bottom line: No matter what the president may have wanted the Ukrainians to do, nothing happened — Ukraine got its defense aid without any compromise to its security; Zelensky got his audience with Trump (albeit at the high-profile U.N. conference in New York City, not at the Oval Office as the Ukrainian leader had hoped), and Kyiv was not required to conduct or announce any investigations.


It also is highly significant that President Zelensky — the only witness who can speak to Zelensky’s own state of mind — says he did not feel pressured or intimidated. National leaders pressure each other for accommodations all the time. That’s not extortion; it is what foreign relations are all about. Yet, the logic of the Democrats’ argument here is that Zelensky is lying. That is both an unseemly position to take, regarding the head of a friendly foreign government, and wildly inconsistent with Democrats’ posturing about how imperative it is for Washington to support Kyiv. 

All that said, though, the president’s argument invites close scrutiny of the underlying facts. Far from saying the facts don’t matter, the president is vigorously contesting them. For now, it is beside the point whether he is right or wrong. The issue is how an objective judge or other fact-finder is apt to react to such an argument. 

Naturally, most would reason as follows: If the president thinks the questions of whether his actions were in any way inappropriate and whether there was a quid pro quo are so important that he takes time to stress them in his trial brief, then we better get to the bottom of those questions.

That can only help the Democrats, who are demanding witnesses. They point out that potentially available witnesses, such as former national security adviser John Bolton and acting White House chief of staff Mick MulvaneyMick MulvaneyFauci says positive White House task force reports don't always match what he hears on the ground Bottom line White House, Senate GOP clash over testing funds MORE, have probative testimony on these contested matters.

As we get deeper into the trial, it may prove difficult for the president’s team to argue both that the president did not pressure Ukraine and that the Senate should not hear from witnesses with relevant knowledge on that point. It may prove difficult for the president both to maintain that the facts irrefutably prove he did nothing wrong and to assert executive privilege, which effectively conceals some of the facts — even if the assertion is legally justifiable. 


To my mind, it was the House’s burden under the Constitution to allege misconduct so egregious that it could convince the public and two-thirds of the Senate to remove the president from office, even though the election is just a few months away. The articles of impeachment fall woefully short of that showing, even if some of the underlying facts would cast the president in a poor light. If I am right, the president should be pressing for a rapid vote on the ultimate issue of acquittal, not contesting the underlying facts in a futile effort to be wholly vindicated.

The lengthy memorandum the president’s legal team filed Monday seems to be an effort to navigate these potentially conflicting objectives. The first two-thirds-plus zealously posits that the impeachment articles are not merely insufficient in that they fail to state impeachable offenses; they are subversive of the Constitution, envisioning a standard that would threaten all future presidents — landing us in the very thicket of politicized abuse of the impeachment power that the Framers feared. “The president,” the lawyers thunder, “should immediately be acquitted.” Yet, the last third of the memo offers a point-by-point counter to the facts alleged by House Democrats (“There was no quid pro quo, and no pressure on [Ukraine] concerning investigations.”) 

This is the dilemma. Fact-finders could be forgiven for believing that the president’s lawyers are adamant that no examination of new witnesses and documentary evidence is warranted because the two articles fail to allege an impeachable offense, but that the president himself wants something closer to a full-blown trial.

He should listen to his lawyers.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.