Screenwriter Aaron Sorkin could not have written dialogue that more comically illustrates the weakness of the Republican defense of Donald Trump than what Republicans wrote for themselves during their feeble cross-examination of US Ambassador William Taylor on Wednesday.
During that first round of the impeachment hearings, Steve Castor, the Republican counsel chosen to cross-examine Taylor and former State Department official George Kent, quizzed Taylor about Rudolph Giuliani’s shadow diplomacy on behalf of Trump. Castor asked: “Now, Ambassador Taylor, I want to turn to the discussion of the irregular channel you described. In fairness, this irregular channel of diplomacy, it’s not as outlandish as it could be, is that correct?”
Friends, when your lawyer is asking a witness to describe your client’s conduct on a scale of “outlandishness,” you are in legal jeopardy. Taylor eventually responded, “It’s not as outlandish as it could be, I agree, Mr. Castor.” If you listened closely you could probably hear Colonel Nathan Jessup from A Few Good Men saying “Phone calls and footlockers? Please tell me you have something more, Lieutenant.”
Unlike in the movie, however, this really is all the House Republicans have. They have no exculpatory evidence. They have no hidden witness to unveil. They don’t even have an ill-fitting glove for Trump to try on. All they have is wild conspiracy theories, faux process concerns, and the desperate Hail Mary argument that the president of the United States doesn’t have the intellectual capacity to understand that he’s committing crimes.
These arguments are bad. Insultingly so. But that does not mean they should be dismissed. Democrats have a habit of letting the very worst arguments go unaddressed—think pedophile pizza-parlor conspiracies or anti-vax hysteria—only to be shocked when a bunch of kids with measles raid a Chuck-E-Cheese.
It might feel wrong, but let’s lower ourselves and actually debunk the five most prominent Republican defenses of Donald Trump.
#1: Read the Transcript
Let’s start at the top: As of this writing, since the start of the public testimony on Wednesday, President Donald Trump has tweeted or retweeted something directly about the impeachment hearings 67 times, by my count. For context, he tweeted about own son’s book only once in that time. It is hard to tease out a specific defense the president is making for himself. There are a lot of lies and rantings and Sean Hannity quotes, but the most consistent message from the president is: “READ THE TRANSCRIPT” (emphasis in the original Trumpese).
The premise of the “read the transcript” defense (aka the “It was a PERFECT call” defense) is that the president never directly said “quid pro quo” during his July 25 call with President Volodymyr Zelensky of Ukraine. In Republican logic, “quid pro quo” is a magic phrase; without it, no crime was committed.
But the phrase has no more legal power than “abracadabra.” Trump’s memo of the transcript clearly shows that Trump solicited a bribe from a foreign government. “Bribery” is also not a magic word. We have some laws explaining how it works, even when you don’t say “bribe” aloud: Federal bribery occurs when a public official seeks “a thing of value” in exchange for some official act or duty.
If you read the transcript released by the White House, the elements of bribery are made clear. Zelensky asks for various “official acts” on the part of President Trump. He wants military aid for his country; this aid was authorized by Congress. He wants a meeting with the president of the United States—not a meeting with a reality television star but with “the president,” who is a public official of the United States government. That president says, “I would like you to do us a favor though.” That favor is a proverbial thing of value: an investigation into Trump’s political rivals. The investigation is not to further the interests of the United States government, but to further the interests of Donald Trump’s reelection campaign. That is the solicitation of a bribe. It couldn’t be more clear from the transcript of the document Trump wants you to read.
Speaking of clarity, the Constitution is fairly straightforward when it lists “bribery” as one of the impeachable offenses for federal officials.
I’ll note that, legally speaking, Democrats are on more solid ground when they talk about “bribery” and not “extortion.” It may seem like a bit of legal semantics, but extortion generally requires a real threat of force. Extortion is the Wicked Witch of the West threatening to “get your little dog too.” Bribery is the Witch telling you she’ll send you home if you just give her those bomb-ass slippers.
The distinction is relevant because Trump likes to say that Zelensky felt “no push, no pressure.” For extortion, you need to show that Zelensky did feel a “push,” that he was under some kind of direct threat of negative action against him. While Zelensky likely did feel that threat, it’s a little harder to prove.
For bribery, you just have to show that the public official wanted a thing of value in exchange for doing his job. The transcript makes that case, easily. Consider the “read the transcript” defense debunked.
#2: Zelensky didn’t pay up
Republicans argue that Trump’s solicitation was not an illegal abuse of power because Zelensky never announced an investigation into the Bidens and eventually got his congressionally authorized aid anyway. This argument is tricky, not because it is reasonable, but because it is so blatantly unreasonable that responding to it tends to make Democrats shout obscenities and scream about how “attempted” murderers are also in jail. Or maybe that’s just me.
Yes, attempted crime is still crime, and Trump’s ineffectiveness is no defense for his actions. But here, it’s important to understand that the law makes no distinction between “attempted” bribery and bribery. The mere solicitation of the bribe is the crime itself, regardless of whether the bribe is paid. The law contemplates a public official who “directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value.”
“Seeking” a bribe and actually receiving one is the same problem. This makes sense if you think about the true victims of bribery. The victims are not the person receiving the bribe, nor the person paying it. The victims are the people who live under the corrupt rule of those who would pay or receive bribes. Whether Ukraine was willing to pay is Ukraine’s business. That American foreign policy is being sold only to those who would help Trump get reelected matters a great deal to my access, as an American citizen, to democratic self-government.
If you focus on the real victims of Trump’s corrupt scheme, then you can see the fact that congressionally mandated aid was eventually released to Ukraine is wholly irrelevant to the discussion. Many have rightly noted that the aid was released only after Politico ran a story about the hold, and after the whistle-blower complaint made the news, and after three House committees launched investigations into the withholding of aid. Republicans arguing that this shows that aid was not withheld for corrupt purposes is like a bank robber arguing that “the money is all there” after he’s been caught, and the cops have put the money back in the vault.
It’s a foolish proposition. Restitution is not a defense of crime. It’s a happy byproduct of successfully identifying criminals before it’s too late.
There’s literally no one using this word whom I don’t resent right now. Republicans are arguing that all the damning testimony being offered about Trump’s criminal scheme to solicit a bribe should be disregarded. They’re using a legal term of art, “hearsay,” to try to convince people that all the evidence against Trump is “secondhand” and thus somehow not real or trustworthy or whatever. They’re counting on citizens and the media to be intimidated and afraid of law-sounding words and to stick their fingers in their ears until the lawyers sort it out.
Allow me to sort.
Hearsay is a rule of evidence that applies to testimony made by witnesses who are unable to appear in court to offer (and defend) their testimony. Usually, those witnesses are “unable” to appear because they are dead or have fled the jurisdiction of the court. The Hearsay rule generally makes this kind of testimony inadmissible in a court of law (subject to over 20 exceptions) because we want juries to be able to assess the credibility of witnesses by hearing their testimony directly, if possible.
In this case, Donald Trump is not (yet) on trial. He is being investigated. Investigations are not subject to the Hearsay rule, because refusing to listen to all the evidence of a crime when you are trying to investigate that crime is ridiculous. The people who are testifying in this investigation are testifying to their recollections, and the credibility of those recollections can be assessed by the investigators, in this case Congress. Most important, there are no witnesses who are truly “unavailable”; rather, Donald Trump has made witnesses unavailable by refusing to let them submit to lawful subpoenas from Congress. To allow Trump to benefit from illegally making witnesses to his misconduct unavailable would be the equivalent of allowing a kingpin to benefit from killing his henchmen before trial.
Even if Trump is somehow allowed to get away with that, there are numerous other exceptions to the Hearsay rule that would apply if this were a trial, which it is not. There’s the “co-conspirator” exception for when statements are made “during the course and in furtherance of the conspiracy.” There’s the exception that allows people to testify to another’s state of mind. And there’s the “catch-all” exception that allows Hearsay testimony if witnesses are available and have been notified in advance that their statements will be offered at trial.
To recap: Hearsay doesn’t apply here. If it did, it would be Trump’s fault. If that didn’t matter, there are numerous exceptions available to allow this kind of testimony. Every Republican with a modicum of legal training who makes a “this is all hearsay” argument is an embarrassment to their profession, their country, and probably their family.
#4: The Whistle-blower
Republican congresspeople argue that the person who first spoke up and alerted the government to the corruption of the president of the United States should be outed, subpoenaed, and forced to offer public testimony about his or her claims—and until then, those claims are suspect.
This argument is ridiculous and dangerous. After the whistle-blower’s complaint was finally made public, Donald Trump released notes from a call he had with Ukraine’s president. Those notes corroborated the whistle-blower’s entire complaint (see “bribery,” above), rendering the whistle-blower, their complaint, and their motivations for complaining, entirely irrelevant. Further, since Trump’s release of the call notes, numerous government officials have come forward to offer testimony, under their own names, that corroborates the whistle-blower’s initial complaint.
Every Republican who attempts to out the whistle-blower is wrong and sets a dangerous precedent about the reliability of our whistle-blower protections. The end.
#5: Too Dumb to Crime
So far, every Republican argument we’ve dealt with is facially disingenuous, legally wrong, socially and politically immoral and unethical, or all of those things at the same time.
But this one here, while still ultimately incorrect, is not a full manifestation of partisan hackery. Whenever Trump gets in trouble, Republicans return to the concept that Trump is too stupid—Senator Lindsey Graham calls it “incoherent”—to do whatever it is he’s accused of doing.
It’s a shocking charge from the president’s own party, and it sounds like they’re merely infantilizing the president to avoid holding him to account for his actions. And most of them likely are. But, in our criminal justice system, the culprit’s knowledge of wrongdoing is a legitimate element to wrongdoing. Lawyers call this “mens rea”; the bribery laws call it “corrupt intent.” If this were a criminal trial (which, again, it’s not), you’d need to show that Trump intended to solicit a bribe, as opposed to merely intended to say whatever words popped into his head long enough for him to mispronounce them before moving onto whatever President Hannity told him to do next.
If the only evidence of Trump’s corruption were the July 25 call, it might not be enough to establish Trump’s corrupt intent towards Ukraine.
The Republican argument fails, however, because there’s a lot more than the call. There is all the testimony about the other things Trump did or said regarding the aid to Ukraine: his conversations and phone calls with EU envoy Gordon Sondland; his firing of former Ukraine ambassador Marie Yovanovitch; his interactions with John Bolton; whatever the hell Rudolph Giuliani was doing. All of it goes toward his corrupt intent.
We know Trump desired a bribe from Ukraine because he took many, many steps in furtherance of getting that thing of value. We know he valued that thing because he kept talking about how important it was that Ukraine investigate the Bidens. We know it wasn’t a fleeting thought bubble, because Mick Mulvaney told us with regard to quid pro quos, “We do this all the time.”
There are many more bad Republican arguments, but you don’t need any special knowledge or training to defeat them. “You’re going to impeach me for that?” Yes. “It’s boring.” So? “Hunter Biden…” Hush up, Ivanka’s daddy.
The Republican defense of Donald Trump is wrong, at every level. No matter how fast Jim Jordan talks, no matter how smug Mark Meadows seems, no matter how many cows Devin Nunes sues, know that these people are making terrible arguments. Take heart and feel empowered to tell them that to their faces—or share your superior knowledge with any low-information Trump sycophant you have the misfortune of coming across in your life.