As the impeachment trial of President Donald Trump began on Tuesday, his lawyers offered a bombastic and truth-challenged defence of the president that insisted the real bad actors in all of this are the Democrats.
During a debate over a resolution laying out the trial procedures, the initial argument from White House counsel Pat Cipollone and Trump’s private lawyer Jay Sekulow boiled down to a series of complaints about the process during the House impeachment inquiry ― most of which were false or misleading.
House Democrats presenting the case for impeachment explained how Trump abused his power by withholding military assistance from Ukraine, an ally effectively at war with Russia, while demanding a sham investigation into former Vice President Joe Biden, Trump’s highest-polling political rival in the 2020 election.
Cipollone said House Intelligence chairman Adam Schiff, who now serves as the House impeachment manager, “made false allegations about a telephone call,” but he didn’t specify what was false.
On his now-famous July 2019 call with Ukrainian President Volodymyr Zelensky, Trump asked Zelensky to look into Biden and his son Hunter. He later said publicly that he wanted Ukraine to start “a major investigation into the Bidens” ― which is essentially the heart of the Democrats’ abuse of power case.
For the rest of the afternoon, Trump’s team complained about process. Sekulow claimed that Trump “was denied the right to cross-examine witnesses,” access evidence or have counsel present during impeachment proceedings before the House Judiciary Committee.
These alleged refusals amount to “a trifecta that violates the Constitution of the United States,” Sekulow added.
But that isn’t really what happened. The Judiciary Committee invited the president to participate in its hearings and the White House said no. There is also no constitutional provision requiring the House to allow the president to cross-examine witnesses, access evidence or have counsel present during impeachment hearings.
The resolution being debated ― which was written by Senate Majority Leader Mitch McConnell ― would not guarantee any witness testimony in the Senate trial. Despite their public fury over the lack of witnesses in the House inquiry, Trump’s team supports the resolution, saying that if Democrats think their case was good enough to impeach the president, they shouldn’t need more witnesses at trial.
The resolution calls for 24 hours of arguments from each side, starting on Wednesday and spread out over three days each, followed by a period of questioning by senators. Only then will the Senate vote on whether to subpoena witness testimony, which a handful of Republicans have said they would support doing. Democrats would need only four Republicans to join them to get witnesses.
Both Sekulow and Cipollone claimed the impeachment of Trump threatened the constitutional order by attacking executive privilege.
“There’s a reason we keep executive privilege, and we assert it when necessary,” Sekulow said. “And that is to protect ― to protect the Constitution and the separation of powers.”
Cipollone attacked the “notion that invoking your constitutional rights to protect the executive branch” could be an impeachable act of obstruction.
In fact, Trump has not once asserted executive privilege throughout the entire impeachment inquiry. He has directed his aides and Cabinet officials to not comply with congressional subpoenas. He has refused to hand over documents from the State Department and the Office of Management and Budget. But in none of these instances did he officially assert executive privilege.
“They never claimed executive privilege!” Schiff said in a rebuttal to Trump’s lawyers. “In order to claim privilege, you have to specify which document, which line, which conversation.”
Trump’s lawyers also complained that the House never went to court to enforce its subpoenas for testimony from the administration officials whom Trump prevented from testifying.
“The president’s opponents in their rush to impeach have refused to wait for complete judicial review,” Sekulow said, adding, “We’re acting as if the courts are an improper venue to determine constitutional issues of this magnitude. That is why we have courts.”
But the Trump administration is making the exact opposite argument in court to prevent former White House counsel Don McGahn from testifying before a congressional committee. Trump’s Justice Department lawyers argue that Congress has no constitutional right to enforce a subpoena and the federal judiciary has no constitutional ability to rule on a congressional subpoena.
Perhaps the most glaring falsehood asserted came from Cipollone when he alleged that Schiff did not allow Republican members of the House investigating committees to enter the sensitive compartmented information facility, or SCIF, originally used for witness depositions. All members of the three investigating committees ― the House Intelligence Committee, House Foreign Affairs Committee and House Oversight and Reform Committee ― were allowed equal access, regardless of party, to the witness depositions held in the SCIF.
In response to these false allegations, Schiff in his rebuttal declined to say that Trump’s lawyers were purposefully lying in the president’s defence. He carefully said that Cipollone was simply “mistaken” or “just plain wrong.”
Schiff did offer a theory on why Trump’s defence rested on a series of false attacks on the House’s impeachment inquiry: “When you hear them attack the House managers, what you’re really hearing is, ‘We don’t want to talk about the president’s guilt.’”