President Donald Trump’s lawyers began their impeachment arguments on Saturday with what football fans might call a “prevent” defense. Under that strategy, a team with a lead late in the game plays cautiously to avoid giving up a big play.
And now we know why.
Trump’s defense team is now offering its closing arguments. Over the course of the past few days, the group has offered six predictable defenses, each of which can be rebutted. It now appears that their goal was to simply provide Republican Senators with sufficient talking points and avoid changing anyone’s mind.
But on Sunday, that strategy appeared to backfire when it was reported that former national security adviser John Bolton’s upcoming book contradicts at least one of Trump’s defenses. By avoiding witness testimony that could have been high risk or high reward rather than addressing those facts head-on at his trial, Trump is now seeing the facts trickle out in other forums where it is difficult to control.
Trump’s lawyers have argued that the president never admitted to any quid pro quo. On Saturday, defense attorney Michael Purpura stated, “Not a single witness testified that the president himself said that there was any connection between any investigations and security assistance, a presidential meeting, or anything else.” Purpura’s careful wording is technically true, but only because Trump himself blocked Bolton and other witnesses from testifying. If Bolton were to testify truthfully, he would presumably say exactly that. In a real trial, a lawyer would be sanctioned for so deliberately misleading the finder of fact.
Bolton’s book reportedly states that in August, Trump said that he wanted to withhold military aid to Ukraine unless it helped with investigations into former Vice President Joe Biden and his son Hunter. This revelation highlights the need for witness testimony from those with first-hand knowledge, such as Bolton and acting chief of staff Mick Mulvaney. Bolton’s testimony would support not only the abuse of power allegation against Trump in the first article of impeachment, but would also prove the second article alleging obstruction of Congress. Bolton’s allegation suggests that the real reason that Trump decided to “fight all the subpoenas” was not to protect the office of the presidency, but to conceal the truth from the American people.
Trump’s other five defenses are no more persuasive. First, White House counsel Pat Cipollone argued that the “transcript” from Trump’s July 25 call with the Ukrainian president shows that Trump did “nothing wrong.” Asking fact-finders to focus narrowly on one piece of evidence is a common defense tactic, intended to draw attention away from other facts that are damaging to the defense. Here, of course, the transcript is not a transcript at all, but a summary of Trump’s call with President Volodymyr Zelenskiy. Lt. Col. Alexander Vindman testified that the summary omitted certain key words, including the word “Burisma,” the Ukrainian energy company on whose board Hunter Biden served.
Even more important, focusing solely on the call summary ignores the monthslong negotiations between Ukraine and U.S. diplomats, as well between Ukraine and Trump’s personal attorney Rudy Giuliani, over investigations into the Bidens. The call alone does not tell the whole story.
In addition, even the summary shows that when Zelenskiy inquired about military aid, Trump responded by asking for a “favor” in the form of investigations into the Bidens and the 2016 election. When viewed in the context of the other negotiations, the meaning of the call supports the House managers' theory that Trump was using a White House meeting and military aid as leverage to coerce Ukraine to announce investigations that Trump could use to smear his political rivals.
Second, Trump attorney Michael Purpura also argued that Ukrainian officials have said they felt no pressure from the White House. This argument looks at the effect of Trump’s words on their recipient, an irrelevant fact, rather than the intent of the perpetrator in uttering them. Even if Ukraine didn’t feel pressure, that does not exonerate Trump. Sometimes, third parties are only too happy to pay a bribe if it means they get what they want. Restaurant patrons sometimes gladly slip a bill to the maître d' to get their preferred table, and both parties are satisfied, to the detriment of those who play by the rules. In a trial, a jury would be asked to use common sense to view the totality of the evidence to draw reasonable conclusions. A reasonable conclusion here is that Ukraine does not want to bite the hand that feeds it by involving itself in a political dispute in the United States.
Third, Purpura argued that Ukraine was not aware of the hold on military aid until late August, and so the aid could not have been used as leverage to induce investigations. This claim is inconsistent with the evidence. Defense Department official Laura Cooper testified that Ukraine became aware of the hold on July 25, the same day as the call. And regardless of whether Ukraine became aware in July or August, the hold continued after Trump’s request for the investigations. The aid was not released until Sept. 11, after Trump became aware of the whistleblower’s complaint.
Fourth, Trump attorney Jay Sekulow argued that the military aid eventually flowed, and so there was no harm and therefore no foul. But bribery and extortion are what are known as “inchoate” crimes. They are complete upon the demand, regardless of whether the threat is ultimately carried out. The harm occurred when Trump betrayed an ally by delaying, by months, military aid to help fight a common adversary. (And in the process undermined U.S. credibility as a corruption fighter.) At war with Russia, Ukrainians may have died because of this delay in aid. Thus, Sekulow’s argument is what prosecutors refer to as a red herring, based on the tactic fox hunters use to enhance the challenge by drawing their dogs off the scent of their actual pursuit. Senators should not be distracted it.
Fifth, the defense argued that Trump has been a better friend to Ukraine than his predecessor. There is certainly no indication that President Barack Obama attempted to extort Ukraine into providing him with any personal or political benefit. But even if, hypothetically, Obama had not been a “good friend” to Ukraine, this would of course be irrelevant to whether Trump abused his own power by extorting an ally for personal political gain. Jurors are routinely instructed that whether others are potentially guilty of this or other crimes is irrelevant to their determination of guilt for the defendant who is on trial.
At the moment, Trump still appears to have the votes for an acquittal at the impeachment trial. But sometimes a prevent defense ends up being an ill-fated strategy. Trump has sought to avoid a catastrophic outcome by suppressing witnesses, hoping to rely solely on lawyers’ arguments to prevail at trial. But as the facts seep out, and if Bolton and others continue to contradict his story, senators will be perceived as enablers of deceit.
Even if senators do not vote to remove Trump from office, the final score will come at the ballot box in November.
- Barbara McQuade is a professor at the University of Michigan Law School, a former U.S. Attorney for the Eastern District of Michigan and an NBC News and MSNBC legal analyst.
This piece was first published by NBC Think.
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