I suppose I really shouldn't do this, but here is Goat Rodeo's Day Five of the impeachment hearings. This was Saturday and was the Republicans' initial presentation, a mere three hours. But I do want to get this out of the way before hearing the rest of the Republican presentation, because from my understanding today's presentation was not as rational as Saturday's.
So what would I say about Saturday's presentation?
Well, it wasn't bad, exactly. And by "not bad," I mean didn't go full on Devin Nunes. It didn't descend into ranting or blatant partisanship, or paranoid conspiracy theories. It didn't defame Joe Biden. It did normal defense lawyer stuff -- tried to poke holes in the prosecution's argument.
The defense was based on the phone call transcript. Trump's lawyers argued that the House Managers were selectively quoting the call, and ignoring context, and that, taken in context, the call was quite innocent. The trouble was that to do so, the lawyers had to, um, selectively quote and ignore context.
Trump, they argue, was concerned about two things -- burden sharing and corruption. As for burden sharing, he mentioned it at the beginning when he said that Germany was not paying its fair share in aid to Ukraine, and Ukrainian President Zelensky agreed. That is not actually true, the the EU contributing more than twice as much as the US and Germany nearly as much, but mere facts are not important to Trump who assumes that even one dollar aid is excessive, so maybe half a point there.
As for corruption, the call never so much as mentions it, although it does mention the Bidens. Trump's lawyers also argued that Trump was legitimately interested in all foreign interference in the 2016 election and wanted it investigated. The trouble with that is, once again, that Trump never so much as mentioned the marginally respectable theories of Ukrainian interference. These theories define "interference" so broadly as to include an editorial or Facebook comment and make some decidedly strained assumptions about the origin of information, but they are at least somewhat reality-based. But Trump did not ask for investigations of whether disclosure of payoffs to Paul Manafort were false; he didn't ask Zelensky to investigate whether any Ukrainians were sources for Fusion GPS; he didn't ask for investigation into the Ukrainian embassy in Washington's communications with Alexandra Chalupa. No, he asked Zelensky to find the "server" that was hacked. And that is downright tinfoil hat territory. Trump's lawyers avoided the subject.
They focused, instead, on the absence of any mention of military aid in the phone call, and friendly discussions of a future meeting. That could be taken as evidence that the phone call was innocent. But only if one ignores the testimony and e-mails of Kurt Volker and Gordon Sondland making clear that they were coaching Zelensky before the phone call of the need to investigate "Burisma and 2016."*
They also focused on the Ukrainians never mentioning the cutoff in military aid before the cutoff was announced in Politico as proof that the Ukrainians were not aware of the cutoff and that military aid therefore could not have been used as a source of pressure. They did what any defense lawyer would do -- minimized and searched for inconsistencies in testimony by Laura Cooper and Catherine Croft** that the Ukrainians appeared to have known about the holdup before then. They also ignore the apparently unanimous consensus of the executive branch that there was no justification and the aid should be released. Nor does it do to say that Trump, as head of the executive branch, could override it. The aid was appropriated by Congress. The Impoundment Control Act forbids the President from not spending money Congress has duly appropriated. There are some exceptions, but they require specific justifications and procedures, and notification to Congress, none of which was done.
And they implausibly took at face value both Trump's and Zelensky's assurances that there was no pressure and no quid pro quo. Particularly Trump's statement, "I want nothing. No quid pro quo. Tell Zelensky to do the right thing," sounds very much like an admission of quid pro quo.
As to obstruction of Congress, the Republicans argued that the President was not required to comply with impeachment subpoenas because the House as a whole had not voted to hold an impeachment inquiry; merely one committee was holding an inquiry. This argument, too, required ignoring a whole lot of context. In particular, it required ignoring the fact that Trump had been making blanket denials of all Congressional subpoenas before Congress initiated impeachment hearing, and suing to block third party subpoenas, arguing that Congress had no authority to demand records except as part of an impeachment inquiry. When Congress opened and impeachment inquiry, he argued that it had no right to demand records because the inquiry was opened the wrong way. And when Congress asked what it would have to do to get cooperation, the response was, drop the impeachment. Oh, yes, and Trump lawyers are arguing in court that the courts have no authority to decide a dispute over whether Congress can subpoena the executive. So, yes, the charge of obstruction of Congress is more than justified.
And they impugned Adam Schiff's character and motives. They raised Schiff's claims that he had "more than circumstantial" evidence of collusion between Trump and the Russians, which really are problematic.*** They also pointed out that the whistle blower spoke to a Schiff aide, and possibly to Schiff himself, before filing the complaint. It does seem a safe assumption that, even if the whistle blower did not talk to Schiff directly, Schiff's aide did pass on the message. That would mean that when Schiff started making loud demands for the whistle blower complaint, he knew more than he let on and was being disingenuous, which is a legitimate complaint. Still, it also appears that a Devin Nunes aide was in regular contact with Giuliani and his henchmen. It seems a safe assumption that Nunes' aide passed their information on to his boss (it would be a serious rogue operation requiring a different kind of investigation if he did not), and so Nunes also knew a great deal more than he let on during the hearings. If we are going to call Schiff as a witness, Nunes or his aide should also be called.
And I will say, this is not the craziest theory of a case I have ever heard a lawyer present.
I once saw a case of a cash register attendant brutally hacked to death with a hoe, with blood splattered all over the store. A local transient was ruled out as a suspect when lab tests revealed no blood on his clothes.**** Public Defenders, defending a suspect who was found later, tried to argue that the transient might have done it. Central to the argument was that the clothes were tested several days later and the blood might have disappeared during that time, even though the clothes were not washed.
I also saw a police brutality case in which a man had been shot three times in the back.***** The police officer argued that the shots took place during a struggle at close range, with cop seizing the victim form behind and the victim firing over his shoulder. The trouble with this argument -- there was no gunpowder residue on the victim's clothes, which should have been found if he was shot at such close range. So the police officer's lawyers argued that it might have fallen off when the paramedics cut the victim's clothes off.
I imagine overworked prosecutors and public defenders make arguments like this all of the time. But a President who can afford top-notch lawyers should do better.
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*Both men denied any knowledge that Burisma was code for the Bidens, even though (1) everyone else seemed to have figured it out, and (2) Rudy Giuliani directly linked the two to Volker.
**Croft for some reason did not testify publicly, so I was not aware of her.
***And, just for the record, the Mueller Report did satisfy me that there was no ongoing conspiracy between Trump and the Russians, even as Trump sought to exploit their actions. I do not believe there was such evidence and Mueller simply missed it. What convinced me of this was when Trump finally surprised everyone by winning the election, the Russians madly scrambled to establish some sort of channel of communications. If there had been an ongoing conspiracy, such a channel would have already existed.
****Actually, there was a little on the knee of his pants, but it was a different blood type from the victim.
*****Just to be clear, the victim survived the shots. However, he was extremely drunk at the time of the incident and did not remember what happened.
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