Fact-checking 3 pillars of the White House impeachment defense
The day before opening statements in the impeachment trial of President Donald Trump, his lawyers submitted a lengthy trial memorandum responding to the charges against him. Here are the facts around three of their main arguments in the President’s defense.
The first article of impeachment, ‘abuse of power,’ is not an impeachable offense
Memo: “House Democrats’ Made-Up ‘Abuse of Power’ Standard Fails To State an Impeachable Offense Because It Does Not Rest on Violation of an Established Law”
Facts First: Not only is there precedent for abuse of power as an article of impeachment, this argument ignores evidence that came to light prior to the submission deadline for the White House’s response.
“Abuse of power” is not a made-up standard; it was part of the initial articles of impeachment drawn up against Presidents Bill Clinton and Richard Nixon. However, the full House never voted on the articles of impeachment against Nixon, as he resigned beforehand, and abuse of power was not among the articles approved by the full House for Clinton.
Democrats argue that Trump abused his power by withholding foreign aid for his personal political benefit. Last week, the Government Accountability Office concluded the Trump administration had violated the law, specifically the Impoundment Control Act, by withholding US security aid to Ukraine. In its report, the nonpartisan congressional watchdog wrote, “Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law.”
In their memo, Trump’s lawyers may have been referring to the GAO report when they argued, “The Senate cannot expand the scope of a trial to consider mere assertions appearing in House reports that the House did not include in the articles of impeachment submitted to a vote.” This issue should be addressed shortly, as senators will vote to decide what materials and evidence from the House will be included for the Senate trial.
Obstruction is not an impeachable offense
Memo: “House Democrats’ Charge of ‘Obstruction’ Fails Because Invoking Constitutionally Based Privileges and Immunities to Protect the Separation of Powers Is Not an Impeachable Offense”
Facts First: The Supreme Court weighed in on this issue with Nixon and concluded that neither the President’s constitutional right to “executive privilege” nor separation of powers protects him absolutely from providing information requested in the process of a “fair administration of justice.”
During the House impeachment inquiry, Trump administration officials cited things like “absolute immunity,” essentially a claim about executive privilege, as justification for instructing White House advisers to defy subpoenas and withhold documents.
Democrats violated due process and Trump’s rights
Memo: “When the impeachment stage-show moved on to the Judiciary Committee, House Democrats again denied the President his rights.”
Facts First: This is incorrect on several counts. Trump’s legal team seems to be arguing that the President was entitled to hallmarks of criminal trials such as the right to counsel and to call witnesses. But the President doesn’t have the “right” to those things in the way the memo implies because this is not a criminal proceeding— it’s a political one. Nevertheless, the President’s lawyers had been invited to participate in the impeachment proceedings conducted by the House Judiciary Committee, but declined to do so.
Attacking the process has been a go-to argument in Trump’s defense for the Republicans and the President since the impeachment inquiry began in the House. This memo from the President’s lawyers makes it clear they will continue to push this angle in the Senate.
