Imagine, if you will, that you’re unlucky enough to be President Donald Trump’s lawyer. Sometime in the next few months, you’ll have to stand in front of the U.S. Senate—not just the chamber itself, but all one hundred senators, patiently sitting at their desks—and give a closing statement in your client’s impeachment trial. Chief Justice John Roberts is sitting behind you, presiding over the process. And C-SPAN’s cameras are pointed down at you from the gallery, broadcasting your remarks to Americans and the world.
How would you defend the president? What would you tell senators to convince them not to convict Trump on the House’s articles of impeachment? I’ve spent the past few weeks tracing the evolving, bumbling, and bewildering defenses put forth by the president’s staunchest supporters. With the release of the House deposition transcripts from key witnesses this week, those defenses look more threadbare than ever. So I’ve wondered: What exactly will Trump’s lawyers tell the Senate when the trial takes place?
This defense will depend on the exact nature of the articles of impeachment brought against him. What those articles would actually look like is unclear. The House is reportedly adopting a narrow approach that only focuses on the Ukraine scandal and its aftermath, excluding the Mueller report’s findings or other scandals. It’s possible that he could face charges for obstruction of justice and contempt of Congress. But for this article I’ll assume he faces at least one article on abuse of power, similar to the second article adopted by the House Judiciary Committee in 1974 against Richard Nixon.
Would you claim that Trump is actually innocent—that is, that the charge is wholly without merit? After all, Ronald Reagan survived the Iran-Contra affair by claiming ignorance of the scandal’s worst aspects. Unfortunately for Trump, the evidence places him at the heart of the scheme. This includes the White House’s own summary of the July 25 phone call with Ukrainian President Volodymyr Zelenskiy, where Trump asked him for a “favor” and urged him to investigate the Bidens. Additionally, Trump cannot claim that Rudy Giuliani was acting without his knowledge, as Zelenskiy specifically mentioned Trump’s aide-de-camp by name during the call.
Since Trump’s role is indisputable, would you try to persuade the Senate that the request was made, but there was no quid pro quo attached to it? New York Representative Lee Zeldin, one of the president’s top allies in the House, took that approach after the Volker and Sondland transcripts became public on Tuesday. “Fun facts Dems/media love omitting from their fairy tale 3rd, 4th, 5th & NO hand stories,” he wrote on Twitter on Tuesday after the Sondland and Volker transcripts became public. “1. Ukraine didn’t know there was a hold on aid until end of Aug. 2. The hold on aid was released soon after that. 3. Guess what Ukraine had to do to get the hold on aid lifted? NOTHING!”
Zeldin’s assertions are dubious at best. The New York Times reported that Ukrainian officials learned that military aid had been frozen sometime in early August, weeks before it became public knowledge in a Politico report on August 28. Even then, the hold wasn’t lifted until September 11—almost two weeks after it became public. Sondland admitted in his testimony that in the intervening time span, he told a top Ukrainian official that “resumption of the U.S. aid would likely not occur until Ukraine provided the public anticorruption statement that we had been discussing for many weeks.” His testimony confirms that a quid pro quo offer existed before the hold on aid had been lifted.
Sondland made that admission in a revision of his earlier testimony that became public on Tuesday. Trump’s defenders quickly noted that Sondland’s revised testimony said he “presumed” the statement was linked to the military aid. “Even *if* you think this is nefarious... Sondland admits in paragraph FOUR this was based on an assumption!” North Carolina Representative Mark Meadows wrote on Twitter on Tuesday. This point is less clever than it sounds. Sondland wasn’t some bystander in the scheme; he was a key participant in it. And as a donor-ambassador who gave $1 million to Trump’s inaugural committee, it’s impossible to credibly claim that he’s motivated by animus towards the president.
Zeidlin’s third point—that Ukraine didn’t have to do anything to get the hold lifted—is also less favorable to Trump than it appears. His decision to lift the hold came two days after the acting director of national intelligence told the House Intelligence Committee about the existence of a whistleblower complaint, and multiple days after the complaint’s existence became known to the White House counsel’s office. If anything, the timeline suggests that the pressure campaign would have continued if the whistleblower hadn’t come forward to report it. For all of Trump’s venom towards that person, they may have saved the president from himself.
Would you claim that Trump is being set up by the mythical “deep state”? The president and his allies have already made that argument over the past six weeks, often revolving around the whistleblower who filed the original complaint. House Republicans have often noted that the complaint was based on secondhand accounts of what transpired. But the same can’t be said for the testimony by Sondland, Volker, U.S. envoy Bill Taylor, and other contemporaneous witnesses. Their accounts, if anything, have largely supported the whistleblower’s core allegations of wrongdoing. And their proximity to the scheme renders the complaint itself—and the person who made it—somewhat irrelevant to the process.
That hasn’t stopped the president’s supporters from fixating on the whistleblower. Some have tried to unmask the whistleblower themselves; others have argued that Trump has a Sixth Amendment right to compel them to reveal their identity. “AKSHUALLY [sic] the Constitution specifically provides for the right of the accused to meet his accuser,” The Federalist’s Mollie Hemingway wrote on Twitter in a message aimed at Michigan Representative Justin Amash. “Whistleblower protection has never—could never—mean that accusations are accepted without question. He of course must testify. To say otherwise is silly.”
Like many pro-Trump defenses against impeachment, Hemingway’s assertion didn’t survive long beyond the confines of the conservative media ecosystem in which it grew. Amash, a conservative legislator who practiced law before joining Congress, quickly fired back. “Yeah, at *trial* in a *criminal* prosecution,” he wrote in a reply. “To say otherwise is silly. The best argument one could make is that it also should apply at trial in the Senate, despite not being a criminal prosecution, following impeachment in the House.” Of course, even the most dubious arguments can take root if senators are willing to accept them. Kentucky Senator Rand Paul made the same point as Hemingway on Tuesday night with an anecdote about Venetian doges.
Would you claim that Trump had acted in good faith when dealing with Ukraine? Some of the president’s defenders have already tested that defense. “The Volker/Sondland transcripts lay it out: @realDonaldTrump wanted to clean up corruption in Ukraine, and ensure taxpayer funded aid wasn’t going to corrupt causes,” North Carolina Representative Mark Meadows wrote on Twitter on Tuesday. “Only D.C. Democrats could spin protecting taxpayer money into an impeachable offense. Blatant partisanship. This argument is laughable at best.”
As I’ve noted before, it’s hard to take anti-corruption concerns seriously from a president who just tried to host the next G-7 summit at a resort he owns in Florida. Trump’s interest in corruption is typically limited to leveling the accusation against his political opponents. And the president’s own remarks during his infamous July 25 call with Zelenskiy showed that his interest in purported corruption only extended to the DNC server conspiracy theory and the Ukrainian company on whose board Hunter Biden had served.
Despite Meadows’ assertion, Sondland and Volker’s testimony supports that conclusion. Sondland told House investigators about a May 23 meeting with Trump where he and other officials hoped to persuade Trump to agree to a White House visit with Zelenskiy shortly after his election victory. According to Sondland, Trump began criticizing Ukraine and complaining that “they tried to take me down,” an apparent reference to the conspiracy theory that Ukraine meddled in the 2016 elections. Sondland also testified that Trump urged him to speak with Giuliani first.
At one point, House investigators also asked Volker whether he thought Giuliani’s focus on Burisma had to do with “potential money laundering or other criminal conduct by the company itself,” as opposed to the Bidens. “No,” Volker replied. “I believe that Giuliani was interested in [Hunter Biden], and I had pushed back on that, and I was maintaining that distinction.” When asked if he maintained the distinction because “that whole theory had been debunked and there was no evidence to support it,” Volker answered yes. Multiple witnesses have also testified that was more interested in the public announcement of an investigation by Ukraine than the investigation itself. That focus suggests the goal wasn’t to uncover possible wrongdoing, but to manufacture allegations of it for political gain.
Would you concede that what Trump may have been wrong, but it wasn’t unlawful? It’s hard to imagine that your client will let you make that point. He’s spent the last six weeks claiming that his call with Zelenskiy was “perfect” and “beautiful.” Moreover, Trump virtually never admits fault or wrongdoing on his part. His apology after the Access Hollywood tape became public in October 2016 is one of the only instances where he’s ever shown contrition in public. Even then, it didn’t last: Trump reportedly told aides and a Republican senator over the next year that it wasn’t his voice on the tape.
Whether Trump had the legal authority to block military aid for Ukraine in the first place is also an open question. Multiple government agencies raised concerns that Trump lacked the legal authority to block military aid once it had been appropriated by Congress. Some Democratic lawmakers have questioned whether Trump’s actions ran afoul of laws like the Impoundment Control Act of 1974. That law outlines the circumstances in which the Office of Management and Budget can suspend congressional allocations of funds. It’s unclear whether Trump and the OMB followed those procedures in this case; the White House’s refusal to release documents may leave that question unanswered.
Other motive defenses are even trickier. Would you claim that Trump is simply a political novice who didn’t realize the implications of his requests? Would you claim it was wrong, but doesn’t rise to the level of an impeachable offense? Under those circumstances, Congress’s ultimate sanction may not be warranted. The fatal flaw in those arguments, of course, is that Trump repeated the mantra of “no collusion!” for roughly two years while the Russia investigation took place. If anything, there’s a case to be made that no living American knows that they shouldn’t ask a foreign power to undermine domestic political rivals better than Donald Trump.