On Monday, the Republicans put on a full-throated defense of President Donald Trump in his impeachment trial in front of the United States Senate. It was a disjointed presentation. Unlike the case offered against Donald Trump by the seven Democratic House managers, the Republicans adopted no coherent narrative to explain why Trump did the things he’s admitted to doing, and couldn’t even stay on the same page in terms of whether he did them at all.
Each Republican lawyer rose to offer what seemed like their own independent theory for why Donald Trump must not be impeached. It’s worth outlining their core claims, just so all of their random and terrible legal arguments aren’t lost in the cacophony of this sad day in American discourse.
Ken Starr argued that impeachment is no longer a constitutional provision that should be applied to a president. Michael Purpura argued that nobody ever heard Trump order a quid pro quo. Jane Raskin argued that Rudy Giuliani was a distraction, but also a great guy who did nothing wrong. Patrick Philbin argued that presidents never have to comply with congressional subpoenas they don’t like. Pam Bondi argued that corruption is rampant in Ukraine because of Joe and Hunter Biden. Eric Herschman argued that… well, he held a MAGA rally from the well of the Senate and argued that President Barack Obama should be impeached. Robert Ray argued that presidents cannot be prosecuted. And finally, Alan Dershowtiz argued that abuse of power is not an impeachable offense, while self-owning the fact that essentially no credible legal scholars agree with him.
One would be forgiven for thinking all the legal gibberish was merely designed to distract and confuse those who tuned into the trial.
In fact, there was only one audience for all of this: Donald Trump. The lawyers were not trying to convince a jury of senators, or even the American people. The Republican defense team is confident that senators are too afraid of Trump to cross him, and perhaps even more confident that his base of support will never abandon him. Their arguments sounded like they were cribbed from Donald Trump’s Twitter feed, because they largely were.
What made the day shocking, though, even to those who expected nothing less than this level of slavish devotion to Trump’s cause, was the sheer hypocrisy on the part of Trump’s lawyers. They put on defenses drenched in bad faith, ones that were internally illogical or self-contradictory to their own well-known positions. It required a level of indecency rarely seen and widely shunned even among other lawyers.
There are lawyers who make bad arguments for guilty clients who can nonetheless walk out of the courtroom with their heads held high for their contributions to justice. Not in this case. Here, everybody on Trump’s defense team should be ashamed of what they’ve done. The fact that they’re self-congratulatory makes their mendacity all the more disgusting.
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Ken Starr walked into the Senate as a legal pariah and, amazingly, managed to lower himself even further. His argument warned that we were living in an “age of impeachment,” where the solemn constitutional remedy had become a mere political tool among rival parties. Did Starr recognize his own role in bringing about the “age” he now warns against? No. Ken Starr the Trump defender, acted like he wasn’t also Ken Starr the independent counsel who was hired to investigate the Whitewater real estate deal, found nothing he could “get” President Bill Clinton on, and kept investigating well past his mandate and all the way into Monica Lewinsky’s closet.
Starr invented an entirely new standard during his time in the spotlight: He said that the impeachment provision should be used against judges, but not against presidents. Did Starr explain how his own presidential impeachment investigation led him to this new understanding? Not hardly. In fact, he spoke of the entire Clinton impeachment saga in the passive voice, repeatedly saying “those who lived through the Clinton impeachment” as if he was just a bystander at the station instead of the conductor driving the train.
Even if you take Starr’s personal hypocrisy out of it, he was making a terrible legal argument. You can’t read a clause (impeachment) out of the Constitution, simply because you wish it wasn’t there while Republicans are in the White House. If Starr wants to get rid of the impeachment clause as it pertains to presidents, he’s welcome to offer a constitutional amendment and see if he can convince states to vote for it. Absent that, his presentation was irrelevant to the matter at hand.
Nearly every Republican lawyer was seemingly chosen on purpose to make an argument that was hypocritical against their own record. Pam Bondi, a former Florida attorney general, is accused of taking a $25,000 campaign contribution from Trump in exchange for dropping a case against him. So, bizarrely, it fell to her to surface the Republican conspiracy theory of corruption and nepotism that surrounds Hunter Biden.
Robert Ray succeeded Ken Starr as independent counsel in 1999. From his perch in the Southern District of New York, it fell to Ray to consider prosecuting Bill Clinton after he escaped impeachment. (Ray didn’t end up indicting Clinton, because Clinton took a deal, paying a $25,000 fine and agreeing to surrender his law license.) So, naturally, the Republicans chose Ray to resurface the argument that a president couldn’t and shouldn’t be prosecuted. That’s not really an issue in this impeachment proceeding but clearly matters to Donald Trump in the long run. Ray recast his decision not to indict President Clinton as stemming from his deep respect for the office of the president and the lasting damage prosecutions of the chief executive can have on the country. I think Ray owes Bill Clinton $25,000.
Even the lawyers who were not previously on the record with positions contrary to the ones they took yesterday were hypocritical inside their own arguments. Jane Raskin offered the mind-boggling defense that the House was focusing on Giuliani because he’s a “shiny” distraction, but instead of distancing Trump from that distraction proceeded to argue that Giuliani’s actions were beyond reproach. Michael Purpura and Patrick Philbin kept making the point that the president is allowed to assert executive privilege and that such assertions cannot be the grounds for an impeachment charge of obstruction of Congress—which sounds logical until you remember that everybody agrees with them. Nobody is impeaching Trump because he asserted executive privilege. The House is impeaching Trump because he did not assert executive privilege. Instead, Trump made the blanket determination that he didn’t have to comply with congressional subpoenas, any of them, or give a reason why the sought-after information was privileged at all. That’s why he caught an obstruction charge.
And then there was Alan Dershowitz. The famed criminal defense attorney closed out the Republican night, unveiling his whackadoodle theory that abuse of power is not an impeachable offense. Unlike Ken Starr, Dershowitz at least admitted that he took the exact opposite view during the Clinton impeachment. Dershowitz also admitted that his new argument has been roundly rejected by most of legal academia.
I law-checked Dershowitz in real time (that thread is here, for those interested in what it looks like to take a bar exam live). His argument was intellectually dishonest to its core. He admitted, barely 10 minutes into his presentation, that the Senate was not “legally bound” to accept his argument that abuse of power is not impeachable. That admission torpedoes everything he said after that. He wasn’t actually arguing that abuse of power cannot be impeachable; he was arguing that it should not be. As with Starr, that’s an argument nobody need heed until there is a constitutional amendment putting Dershowitz’s new theory of presidential criminal defense into law. Find 38 states to agree and call me in the morning.
Toward what end did these eight lawyers sully themselves? Why lower themselves and their reputations—so that they can appear in a Susan Collins campaign ad?
The answer is that it costs them nothing. The reputational damage they caused themselves exists only on one side of the divide—not between liberal and conservative, but between decent and indecent people. Trump and his Republicans have shown that there are more than enough indecent people to keep these lawyers in jobs and television shows and Dancing With the Stars gigs for as long as they’re willing to further the Republican agenda.
Ken Starr has shown himself to be a bad and morally bankrupt lawyer many times over, and yet there will be a warm seat for him over at Fox News when this is all over. Dershowitz has defended more odious men than Trump, but continues somehow to be deemed relevant. Purpura and Philibin, and people like White House counsel Pat Cipollone and Trump personal attorney Jay Sekulow, probably have federal judgeships awaiting them in this administration or the next Republican one.
These lawyers are not going anywhere. There will be no cost for defending Trump, no matter how bad and embarrassing that defense is.
Hypocrisy is a social sin. It has consequences only within the strictures of polite society. Trump’s legal defense team is willing to live outside of polite society. They’re happy to live and work in Republican society.
