When a college basketball player shoots free throws, he can expect opposing fans sitting behind the basket to wave their arms, shout and hold up clever signs to distract his focus from the rim. During opening arguments at the impeachment trial of President Donald Trump, his lawyers attempted the same tactics.
A former colleague once used the analogy to free throws during a trial in the prosecution of a massive fraud case. She asked members of the jury to maintain focus on their mission of finding the facts after the defense offered a number of irrelevant arguments to distract them from their job. Similarly, Trump’s team offered several arguments to divert public attention from a quest for the truth.
One bit of arm waving that Trump’s lawyers have engaged in is the argument that House Managers are attempting to undo an election. White House Counsel Pat Cipollone argued that Democrats are asking the Senate to “tear up every ballot” from the 2016 election, characterizing impeachment as an affront to democracy. But our Constitution includes impeachment to protect our citizens from a leader who abuses his power. Concerned about a monarch with too much power, the framers specifically included a method for removing a president from office. If impeachment were improper because it reverses an election, then no impeachment of a president could ever occur. Our Constitution provides otherwise.
Impeached for intoxication
Another effort to distract the senators and the public they represent is the argument that misconduct must be a crime to be impeachable. Alan Dershowitz, who famously took just the opposite position during the impeachment of President Bill Clinton, argued for the Trump team that the articles of impeachment alleging abuse of power and obstruction of Congress cannot stand because they do not allege a violation of any criminal statute or “criminal like behavior.”
This argument contradicts precedent and the historical record in American impeachment cases. Articles of impeachment included the very same allegation of abuse of power against Clinton and President Richard Nixon. Nixon was also charged with contempt of Congress for failing to respond to subpoenas, similar to the charge against Trump in the second article of impeachment.
During the history of our nation, federal judges have been impeached for intoxication. Statements made by the framers in drafting the Constitution suggest that they intended to reach conduct even beyond that which was criminal. As Alexander Hamilton wrote in Federalist 65, impeachable offenses are “those which proceed from the misconduct of public men . . . or from the violation of some public trust.” And of course, at the time the Constitution was ratified, there were no federal criminal statutes.
Dershowitz’s argument is equally distracting because the conduct at issue is, in fact, “criminal like behavior.” Demanding a thing of value in exchange for the performance of an official act is the very definition of bribery under the federal statute. By allegedly demanding an announcement of investigations into political rivals in exchange for military aid and a White House visit, Trump could be charged with bribery, which meets even Dershowitz’s distorted definition of impeachment conduct.
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The defense shouts another distraction by discussing the conduct of former Vice President Joe Biden, the subject of Trump’s alleged request for an investigation by the government of Ukraine. Pam Bondi, the former attorney general of Florida and a member of Trump’s legal team, played a clip of Biden’s son, Hunter, conceding that he probably would not have been asked to serve on the board of the Ukrainian energy company Burisma if his name had not been Biden. She suggested that Trump was acting appropriately by demanding an investigation into corruption at Burisma and Biden’s involvement in the firing of Ukraine’s former public prosecutor. In fact, Ukrainian anti-corruption officials publicly stated that investigations into corruption at Burisma were focused on activity occurring before Hunter Biden joined its board.
Arguments meant to bury facts
But even if there were any merit to an investigation of the Bidens, if Trump were genuinely interested in rooting out corruption in Ukraine, he would not need to rely on the government of Ukraine do conduct an investigation, and on his personal attorney Rudy Giuliani to persuade it to do so. The Department of Justice has prosecutors and FBI legal attaches embedded in Ukraine as they do in other allied countries around the world. Those U.S. government agencies could initiate any investigation that was meritorious.
As Ambassador Gordon Sondland made clear in his testimony, Trump was interested only in an announcement of investigations, not investigations themselves. And State Department official David Holmes testified that Sondland told him that Trump “doesn’t give a s–t about Ukraine,” and that he only cares about “big stuff that benefits the president — like the Biden investigation that Giuliani was pushing.”
All of these arguments are designed to distract from the facts presented by House managers in their case — evidence that shows that Trump abused the power of his office by using military aid and a White House meeting to coerce Ukraine into making public announcements that could help him politically at the expense of U.S. national security and diplomacy.
In my colleague’s fraud case, the jurors conducted themselves like a good free throw shooter, seeing past the defense lawyer’s distractions and convicting the defendant. Can we count on the Senate to be as disciplined?
Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan, is a professor at the University of Michigan Law School, an NBC and MSNBC legal analyst and a member of USA TODAY’s Board of Contributors. Follow her on Twitter: @BarbMcQuade