President Donald Trump’s impeachment trial now appears very likely to end without witnesses, the first impeachment trial in American history with no witnesses called. While this outcome may have seemed like a certainty at least since Senate Majority Leader Mitch McConnell promised in December that he would be running the trial in coordination with Trump’s defense team, it took a somewhat winding series of predictable but effective procedural maneuvers on the part of McConnell and the acceptance by Republican senators of perhaps the most brassy legal defense in history.
The president’s defense team began its case in earnest on Monday with a presentation from Ken Starr. The former independent counsel was the face of an impeachment of Bill Clinton that had less support in the House of Representatives and in public opinion polls than the impeachment of Donald Trump has now. Despite that fact, Starr somehow managed to argue that impeachments had become too partisan and were happening too often these days without being laughed off of the Senate floor. The Trump defense only devolved from there.
The president’s legal team argued simultaneously that the president wasn’t guilty of abuse of power and that the Senate didn’t need to call more fact witnesses because even if he were guilty of everything the House charged him with—extorting a foreign ally by withholding security assistance to get them to smear a political rival—that it would not rise to an impeachable offense. On Wednesday, Alan Dershowitz argued that if a president commits such abuses while acting in his own electoral interest, he is acting in what he perceives to be the national interest and thus cannot be guilty of high crimes, a proposition so nutty that even other members of the Trump team had to walk the theory back as “radical.”
As bizarre as Dershowitz’s defense was, it wasn’t the most novel and astonishing one presented at this trial—White House chief of staff Mick Mulvaney had essentially made the same argument in an October press conference when he said that quid pro quos happen “all the time” and that people needed to “get over it.” So while it may have been absurd to argue that people just needed to get used to Trump committing bribery, it was not necessarily new.
Instead, while Dershowitz got most of the attention, the most unhinged and innovative legal theory presented at Trump’s trial came from the previously little-known Patrick F. Philbin, who told the Senate that not only were Trump’s actions OK, but there is no legitimate mechanism to even investigate a corrupt president. Philbin was addressing the second article of impeachment, obstruction of Congress, and his principal argument to the Senate was that the House must exhaust all efforts to enforce its subpoenas in the courts before it can impeach the president.
“If they think they can sue, they have to take that step,” Philbin argued on Wednesday. “If they think that the courts can resolve that dispute, that’s the next step. They should do that and have that litigated and then things can proceed to a higher level of confrontation. But to jump straight to impeachment, to the ultimate constitutional confrontation, doesn’t make sense, it’s not the system that the constitution requires, and it is unprecedented in this case.”
The trouble with Philbin making that procedural argument on behalf of Donald Trump, however, is that the Trump Department of Justice was simultaneously arguing in court the exact opposite—that courts have no place in enforcing congressional subpoenas and if Congress wants to enforce its subpoenas, one remedy at its disposal is impeachment. Rep. Adam Schiff, the House’s lead impeachment manager, pointed this out on Thursday: “Today while we’ve been debating whether a president can be impeached for essentially bogus claims of privilege, for attempting to use the courts to cover up misconduct, the Justice Department, in resisting House subpoenas, is in court today and was asked […] ‘if the Congress can’t enforce its subpoenas in court, then what remedy is there?’ And the Justice Department’s lawyers response is: ‘impeachment.’ Impeachment!”
The Senate chamber broke into widespread laughter at the absurdity, for possibly the only time in the proceedings. Philbin later accused Schiff of misrepresenting what had happened in court, but the facts were against him. In court on Thursday, James Burnham, the lawyer arguing the case in question—an effort by the House Oversight Committee to enforce its subpoena of documents related to the Commerce Department’s failed efforts to add a citizenship question to the 2020 census—acknowledged that the White House is arguing both sides in two different proceedings. “We are hypocrites, I guess,” Burnham said, to more reported laughter in the courtroom.
Philbin himself did even concede at one point to the Senate that the White House was busy arguing against the very subpoena power he was claiming the House should have used. “That is our position and we would argue that in court,” he said, “but that is part of what would have to be litigated.” Yes, they were arguing both sides of the question, but it was possible that they could have eventually lost one side, if the House had the patience for it.
There’s a legal solution for that sort of hypocrisy, when a party in a legal proceeding takes a position in that proceeding that contradicts an argument they’ve made in past proceedings. It’s called judicial estoppel and it is supposed to result in the side making the contradictory claims losing.
In Trump’s impeachment trial, instead, the U.S. Senate and the Republican Party appear poised to ensure that, one way or another, Trump’s argument that he can’t be investigated by Congress will win the day. It will then be up to the courts to decide if Trump is truly and fully above the law.
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