The impeachment trial is like a play, a long one, where you know the ending as the curtain goes up. Predictions are unreliable in the world of politics, but there are none suggesting that Trump will be convicted and removed.
As a result, Trump’s defense team is in an orgy of foreordained victory. Their presentations to the Senate thus far are dismissive, not substantive and–with a few exceptions–unprepared. Lawyering, especially in the context of litigation, demands preparation. As a young lawyer I learned that trying a case required ten percent inspiration and ninety percent perspiration.
Regarding preparation, some years ago, the Supreme Court heard a case involving resistance of a grand jury subpoena served on a southern state journalist who was invited to observe drug sales by a dealer and wrote about it. Justice William O. Douglas, who rarely spoke from the Supreme Court bench, asked the Assistant Attorney General arguing the case to affirm the imposition of a contempt sentence on the journalist why “in a case of such moment, the state filed only a three-page brief citing no cases.”
The state’s lawyer replied, “Well, I’m a busy man” evoking laughter from the Justices and the audience.
But the state won the case and the contempt was affirmed!
Here, Trump’s lawyers know that they will win and feel no need to make prepared, substantive arguments on behalf of their client. Maybe they are “busy” men and women. But they know that their presentations to the Senate won’t make any difference in the end.
Perhaps all that will change when the President’s defenders start to make their case but I doubt it. The argument to be made by the self-styled defender of the Constitution (but no part of the White House defense team per se) Emeritus Prof. Alan Dershowitz of Harvard Law School that the articles of impeachment do not allege impeachable offenses because they do not allege crimes or crime-like conduct is a gross example of ipse dixit. In fact, Dershowitz is an outlier in advancing this argument. Since the Constitution does not define the standard for impeachment, the standard is whatever the Congress says it is.
Up to now the House Managers’ presentations are far different from those of Trump’s defenders. Their presentations, especially those of Congressman Adam Schiff, are highly prepared and designed to be persuasive on the merits. The inclusion of videos of parts of testimony in the House hearings is particularly effective.
Much of the evidence quoted by the House Managers before the Senate contradicts the Republican assertion that the impeachment seeks removal based solely on an allegedly “perfect” phone call between Trump and Ukrainian President Zelensky on July 25, 2019.
Ambassador Kurt D. Volker admitted before the House that a written generic commitment to a Ukrainian investigation of “available facts” proposed by Andriy Yermak, a top aide to Zelensky, was redrafted by Volker to add to the generic text the words “including those involving Burisma and the 2016 U.S. elections.” Rudolph Giuliani and Amb. Gordon Sondland proposed the change in Ukraine’s suggested generic statement.
This exchange–standing alone–gives the lie to the White House’s assertion that Trump never demanded that Ukraine investigate Joe and Hunter Biden to damage his political opponent. The Giuliani group’s demand to alter a generic commitment to investigate in favor of a specific commitment regarding the Bidens reveals a plan to damage Joe Biden and influence the 2020 election as the abuse of power article of impeachment alleges.
The Ukrainians, much as they wanted a Zelensky/Trump White House visit, refused to issue the proposed amended statement.
Since the result in the Senate is known, perhaps the detail of the House Managers’ presentation is designed to convince a few Republican senators to vote with the Democrats to call witnesses, especially John Bolton and Mick Mulvaney.
I don’t think that these witnesses will change the result but their testimony could damage the President’s standing with the public and influence the 2020 election.