The Republican lawyers defending President Donald Trump at his impeachment trial have already largely conceded his guilt. There’s no reasonable doubt about Trump’s actions; the question is whether he will be held accountable.
Now, if you are an attorney defending a guilty person who you nonetheless hope will not be punished, one goal you may have is to never talk about your client’s overwhelming guilt. It doesn’t really matter what else you are talking about. You could be talking about the price of tea on Mars. So long as you are not talking about the evidence of your client’s misdeeds, you are winning.
By that score, the Republicans—both the lawyers and the senators who will surely vote to acquit—did a lot of winning during the first day of questions in the Senate trial. Most of the Republican senators’ questions were designed to attack the issue of witnesses. Republican senators largely tried to give themselves excuses for voting against calling witnesses, like Trump’s former national security adviser John Bolton and Acting White House Chief of Staff Mick Mulvaney, while Trump’s lawyers obliged by making increasingly ridiculous and eventually threatening process arguments. And it seemed like every time the questions dared to veer back toward Trump’s overwhelming guilt of the offenses for which he’s been impeached, Alan Dershowitz would pop up to make some wild claim that presidents cannot be impeached for anything, ever.
It’s impossible to overstate the outsize role played by Dershowitz during yesterday’s proceedings. He managed to troll the entire United States Senate.
If you’ve spent any time on social media, his tactics were entirely familiar: Dershowitz said outrageous things, unsupportable things, facially wrong things, and then dared people to challenge him. It was the classic behavior of a bad-faith online troll, only it was done from the Senate well. The right way to handle a troll is to ignore them. But, as everybody knows, that’s easier said than done. It can feel necessary to respond to a troll when they are continually shouting nonsense in your direction and are supported by other people whom you want to convince.
At one point, Dershowitz said that this president, or any president, or any politician, has always been authorized to do anything they could to further their own reelection, including corruption, because their reelection and the interests of the state are one and the same. Folks, that is not a legal theory that has been seriously advanced in public since Louis XIV allegedly said, “L’État c’est moi,” which translates to “I am the State.” Dershowitz was not offering an American theory of constitutional interpretation—he was echoing the cry imputed to a despot.
What were Senate Democrats and House managers supposed to do with that? Ignore it? Dershowitz also reprised his arguments from Monday night, when he made the claim (rejected by nearly all legal scholars) that abuse of power is not an impeachable offense. Republicans have been parroting this legal tripe the past couple of days. Were Democrats supposed to ignore that too?
Understandably, many Democratic senators asked the House managers to rebut some or all of what Dershowitz was spewing. And the House managers obliged. Sometimes, the House managers responded to Dershowitz even when Dershowitz’s theories weren’t the subject of the question. Everybody wanted a turn to dunk on him. Representative Adam Schiff took the prize for most effectively distilling the moral and legal bankruptcy of Dershowitz’s positions: “We’ve lowered the bar to the point where everything’s OK, so long as the president believes it’s in his reelection interest.”
The problem is that every second the Democrats or the House managers spent slamming the wrong and intellectually dishonest Alan Dershowitz was a moment they were not explaining how Donald Trump was guilty of high crimes and misdemeanors. Democrats could have said, “We agree with the professor that his client is guilty. We disagree with his contention that it doesn’t matter,” and never spoken about his loony theories again. But Dershowitz is a brilliant criminal defense attorney because he’s able to make any case he’s involved in about him and not about the alleged criminal he’s defending. Again, as long as you are not talking about crimes, you are winning.
When Democrats were not busy playing whack-a-troll, most of the questions dealt with two other people who are not charged with impeachable offenses: John Bolton and Joe Biden.
You can hardly blame the Democrats for their willingness to talk about Bolton. Convincing the Senate—just four Republican senators, actually—to demand witness testimony is key. Every non-Dershowitzian Republican defense of Donald Trump blows apart if Bolton testifies under oath about what the president told him.
Meanwhile, the Republicans focused a lot of their questions on Joe Biden, Hunter Biden, or the Ukranian energy company Burisma. That’s because, while most of them don’t really want to be dragged into a conversation about Bolton—and the pathetic cover-up they would be engaged in if they refuse to hear from him—they certainly want to do Trump’s bidding and smear Joe Biden as much as they possibly can.
And Trump’s lawyers? They acted like Bolton and the Bidens were part of the same issue, refusing to call the relevant John Bolton unless they called the irrelevant Hunter Biden. And they dismissed both ideas by focusing on how long it would take to call each of them.
Length, maddeningly, was the main Republican defense against calling Bolton. Essentially, Trump’s lawyers threatened to do everything they could to obstruct the testimony of Bolton, including making (baseless) executive privilege claims or demanding the testimony of other (irrelevant) witnesses should Bolton be called. Stripped of all the legal jargon, Trump’s lawyers were arguing the Senate shouldn’t hear more evidence about Trump’s abuse of power and obstruction of Congress because they were willing to abuse their positions to obstruct the Senate and make the trial drag out indefinitely.
House managers had to answer all of this, and they had good answers. Representative Hakeem Jeffries was particularly effective at knocking down all the Republican assertions of privilege and warnings of delay.
But again, as long as the Democrats were talking about process and privilege, as long as they were talking about Bolton and Biden, then they were not talking about the corruption of Donald Trump and the cowardice of the senators who still support him. From a criminal defense perspective, the defense team handled their case brilliantly, distracting just about everyone from the crimes laying in plain sight.
Luckily for Democrats, there is one key flaw in my analysis. I’m still naively riding a unicorn, high over a rainbow, hoping that there’s still a chance that Donald Trump actually gets convicted and removed from office. Everybody with a political brain tells me that such a thing will never happen, that this Republican Party is far too beholden to Trump and his base to ever consider removing the president, regardless of what everybody knows he’s done.
If the goal isn’t removal, then look at all the Democrats have accomplished. They have tied, forever, Republican senators to a despotic theory of the presidency advanced by an odious fanatic best known for his work with murderers and sexual predators. They’ve boxed Republicans into taking a vote to ignore witnesses, a decision that a whopping 75 percent of Americans disagree with. The details that Republicans choose to ignore now will be made widely available to the general public in mere weeks. Additional participants in Trump’s illegal scheme, like Lev Parnas, will continue to release documents and tape recordings that the Republican Senate will have to answer for. The question “Did you make a mistake?” will be coming to a Republican senator near you in the coming months.
And Democrats have energized a base and probably even some moderates who can’t help but be disgusted by the craven display of partisanship and dishonesty Republicans have leaned into for over a week.
Republicans are playing an extremely short game here. They can’t see beyond their immediate danger: acquit Trump or end up with their heads on pikes. Democrats are playing for November, and in the quest to take back not just the White House but also the Senate.
If you believe that the Republican jury in the trial of Donald Trump was ever even slightly willing to convict the president, the question phase of the trial was insane and frustrating. But if you believe that they were never going to do that, if you believe the Republican Senate is biased to its core, then the question phase was as damaging as it could have been for the Republican Party.
Instead of cutting Trump loose, Republicans lashed themselves to him. If he starts to sink now, he’ll take them all down with him.