President Trump’s White House legal team is arguing that impeachment must show that the president has broken the law, asserting that the article charging Trump with “abuse of power” fails because it is a subjective judgment and not an illegal act.
In a “trial memorandum” issued Monday afternoon, Trump’s lawyers also rejected the “obstruction of Congress” article lodged against him by the House, saying the president acted within his legal rights when he prevented aides from testifying during the House impeachment proceedings. The article charges he obstructed Congress by barring witnesses from appearing. The abuse of power article alleges that Trump sought to force Ukrainian officials to conduct investigations that would benefit him politically, threatening to withhold aid unless they did.
The Senate impeachment trial is scheduled to begin on Tuesday. The 171-page legal brief sets the stage for the president’s defense, calling for the Senate to “speedily reject” the charges.
Whether a president needs to break the law to be impeached is a contentious constitutional issue. Many scholars believe that presidents can be impeached for heinous acts that do not necessarily violate the law.
But the White House attorneys, led by White House counsel Pat Cipollone, disagree.
“House Democrats’ novel theory of ‘abuse of power’ improperly supplants the standard of ‘High Crimes and Misdemeanors’ with a made-up theory that would permanently weaken the Presidency by effectively permitting impeachments based merely on policy disagreements,” they wrote.
“By limiting impeachment to cases of ‘Treason, Bribery, or other high Crimes and Misdemeanors,’ the Framers restricted impeachment to specific offenses against ‘already known and established law.’ That was a deliberate choice designed to constrain the impeachment power. In keeping with that restriction, every prior presidential impeachment in our history has been based on alleged violations of existing law — indeed, criminal law.”
The attorneys wrote that Trump is being impeached for “taking permissible actions” but for what Democrats hold to be “the wrong reasons,” asserting that such a standard “would allow a hostile House to attack almost any presidential action by challenging a President’s subjective motives.”
Even so, they wrote, the allegation Trump sought to condition aid to Ukraine on a politically-beneficial investigation is unproven. “House Democrats do not have a single witness who claims, based on direct knowledge, that the President ever actually imposed such a condition,” they claim, bolding and italicizing part of the text. And they say an investigation of then-Vice President Joe Biden’s withholding of loan guarantees from Ukraine was a legitimate pursuit because Biden sought the firing of a Ukrainian prosecutor who had investigated a company with which his son, Hunter, was associated.
The attorneys asserted that Trump had a legal right to resist House Democrats’ subpoenas and acted “only after securing advice from the Department of Justice’s Office of Legal Counsel (OLC) and based on established legal principles or immunities.”
They write: “At bottom, the ‘obstruction’ charge asks the Senate to remove a duly elected President from office because he acted on the advice of the Department of Justice concerning his legal and constitutional rights as President.”
The memorandum also argues that the impeachment process itself was “flawed” because Democrats launched it without a vote of the full House to authorize it. They call the process an unfairly-conducted “show trial” featuring “hand-picked witnesses” whose testimony was pre-screened before being delivered in public.
“House Democrats’ impeachment crusade started the day the President took office,” the attorneys wrote.
The articles are “structurally deficient” as well, according to the brief, because each alleges multiple charges, and therefore it cannot be ascertained whether senators agree on a single reason for conviction.
“The problem with offering such a menu of options is that, for a valid conviction, the Constitution requires two-thirds of Senators present to agree on the specific basis for conviction,” they wrote. “A vote on these articles, however, cannot ensure that a two-thirds majority agreed on a particular ground for conviction. Instead, such a vote could reflect an amalgamation of votes resting on several different theories, no single one of which would have garnered two-thirds support if it had been presented separately.”
