(Photo by Win McNamee/Getty Images)
So… does Donald Trump, or anybody associated with his administration, have any actual legal strategy to fight the impeachment charges that are now surely coming his way?
Like, anyone? Bueller? Frye? Anyone?
So far, the Trump strategy to defend himself on charges of whether he abused his power to get a foreign government to investigate his political rivals has been to threaten to murder the whistle blower, threaten to start a civil war, call women of color “savages,” call allegations against him a coup d’etat, repeatedly insult the chairman of the House Intelligence Committee, and suggest that everybody who is against him is committing treason.
All of that is, you know, extremely bad. But, critically I think, none of it amounts to ANY SEMBLANCE OF A LEGAL STRATEGY. The president released a document that showed him trying to extort the President of the Ukraine into investigating Joe Biden in exchange for WEAPONS. He released a document implicating his own attorney general in an international scheme to investigate the president’s personal rivals on the public’s time. A whistleblower, within his own administration, outlined MULTIPLE Trump administration officials who witnessed or had knowledge of these underhanded dealings. One such official already quit and will testify in front of Congress. Other officials have been called to testify. House Democrats just announced subpoenas for additional testimony and documents.
Tweeting out “Liddle’ Adam Schiff” does not count, to me, as a legal response to this situation. IT’S NOT A PLAN. An insult is not a legal strategy.
Clear as I can tell, the Trump administration only has three responses to the House investigation:
1. Claim executive privilege. Given how often this White House claims executive privilege, you’d think they’d eventually learn something about how it works. But, they never do. YOU CANNOT CLAIM EXECUTIVE PRIVILEGE OVER SOMETHING YOU’VE ALREADY RELEASED, YOU GODDAMNED IDIOTS. Jesus Christ. Privilege involves the presumption of privacy, and so once you make something public, you lose the privilege. NO TAKE BACKSIES!
2. Claim the whistleblower is “hearsay.” Like executive privilege, this legal term of art HAS NO BEARING on what is going on here. The whistleblower filed a complaint. His complaint is not being offered as evidence, it is being offered as grounds for an investigation. This, of course, is proper. Beyond that, Trump provided the actual evidence against him when he released the memo about his phone call. It’s not “hearsay” when the person who said the thing tells you what he said.
Witness: I heard the defendant threaten the Ukraine.
Defense Counsel: Objection, hearsay.
Defendant: That’s exactly what I said, but it was perfect.
Judge: ZOMG!
Defense Counsel: F**k me.
Judge: Uhh, OVERRULED. And to anticipate your next question, no, I’m not granting your motion to get off of this case.
3. Ignore everything. This, while not a normal legal strategy, does seem to be the only one that works for Trump. The House subpoenas documents, and the White House just ignores it. The House subpoenas witnesses, and the White House instructs them not to show up. Unless and until the House figures out how to put some handcuffs on these people, Trump will continue to act like the law does not exist.
The problem with that strategy here is that the House doesn’t really need any additional documents or testimony in order to bring impeachment charges against the president. Again, Trump admitted to doing the thing he was not supposed to do in a document he himself released. If Trump doesn’t want to comply with subpoenas for documents or testimony, that’s kind of the Senate’s problem during the trial.
If Republicans want to bring witnesses like Mike Pompeo to the Senate trial, they can. But that trial will be presided over by John Roberts. I have a very low opinion of Roberts, but I do not think the Lewandowski strategy of claiming privileges he doesn’t have is going to work with Roberts in the room. Anybody who speaks for the president at trial will be cross examined by Democrats, and that will make it hard to play the obfuscation game. Perhaps Republicans won’t call any witnesses, and put on no defense of the president before they vote to acquit him. That’s certainly possible. But that will be the Republicans’ choice to show the entire country that they are so enthralled to Trump they don’t even want to know more about what he did.
In fairness, that’s the only real Trump “strategy” here. Assume the Republicans are too terrified of him to ever turn on him. That might be the right strategy. But it’s not a legal one. I’ll keep waiting for Trump to have one, sound legal argument for why he refuses to comply with the laws of America.
‘We’re Not Fooling Around’: House Democrats Tell White House Subpoena Is Coming [New York Times]
Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.