L'état, c'est Trump
ROGER FITCH ESQ • THURSDAY, FEBRUARY 6, 2020
Impeachment and acquittal ... Sham trial ... Dubious defence lawyers with incoherent arguments ... Constitutional nonsense ... A mess that John Roberts CJ helped create ... Torture lawyers still peddling their soiled wares ... Roger Fitch reports from the wasteland of Washington
"When the President does it, that means it is not illegal" - Richard Nixon"... if a president does something that he believes will help him get elected, in the public interest, that cannot be the kind of quid pro quo that results in impeachment" - Alan Dershowitz
After a trial in which all but house evidence was barred, the senate, by votes of 52-48 and 53-47 (67 were needed for conviction), acquitted president Trump, who avoided removal from office.
Some Republican senators conceded Democrats had proved Trump's misbehaviour, finding his actions "inappropriate" and "shameful", but not impeachable.
It only needed a gaggle of dubious defence lawyers to assert that right was left, and black was white, for the offender Trump to avoid punishment. It was, as predicted, "a show trial with a twist - a public ritual not of preordained condemnation but of preordained exoneration".
Trump initially asked his Republican Party colleagues to simply dismiss the impeachment articles without trial. They declined, but what followed was even more unseemly: Republican bombast, and the first senate impeachment trial - there have been 16 since 1804 - without witnesses.
There were pleadings: the house Democrats' trial memo (more here); Trump's six-page response; the Republicans' trial memo (discussed here, dissected, and adjudged fake law); and the Democrats' reply.
The Democrats' seven managers in the senate were members of the house, led by the House Intelligence Committee chair, Adam Schiff, a former prosecutor.
The Republican defence lawyers in Trump's senate team included Harvard prof and celebrity defence lawyer Alan Dershowitz, Bill Clinton's impeachment foes Ken Starr and Robert Ray, and Pam Bondi.
When she was Florida's AG, Bondi famously decided not to pursue planned fraud charges against Trump University after receiving a timely, and illegal, "campaign contribution" from the now-dissolved Trump Foundation.
Ms Bondi in action on Fox News
Rounding out Trump's legal side were an ethically-compromised potential witness, White House Counsel Pasquale ("Pat") Cipollone, White House lawyers Patrick Philbin and Michael Purpura (a specialist in subpoena-blocking and white collar criminal defence), and Trump's dodgy personal lawyer, Jay Sekulow.
Collectively, Trump's lawyers had appeared on the Republican propaganda network Fox News 350 times in the past year, and Maureen Dowd presciently predicted that the senate trial would be "facts vs Fox". Even so, no one realised the contagious nature of Trump's lies till his odd mob of lawyers took the field.
Chief Justice John Roberts presided, and bearing in mind that the tenth anniversary of Citizens United had occurred on the eve of the trial, some suggested the CJ had come face-to-face with a mess he helped create: unchecked corruption fuelled by secret, unlimited political contributions.
At the outset, the Republican senators blocked subpoenas for witnesses or documents: trial first, evidence later, or never, as it turned out. Despite the Republicans' Red Queen rules, the Democrat trial managers gamely laid out well-documented, incontrovertible statements of facts, while sledged by the defendant.
The Republican lawyers began an incoherent defence with a blizzard of lies and alternative facts, and attacked, rather than the evidence, the Democrats and their witnesses, imputing malign motives to both the managers and public servants who gave evidence in the house.
Trump's lawyers daily tried out speculative new legal theories, constitutional nonsense unknown to legal scholars, recklessly perverting the history and practice of impeachment. It ended in Dershowitz asserting that everything a president does in seeking re-election that he finds helpful, is "in the public interest" and thus unimpeachable.
No one thought it would come to this: with Louis Quatorze claims, the Republicans staked out Trump's constitutional right to cheat in the approaching presidential election, a formula to mask corruption.
Louis XIV - an inspirational figure for Republicans
Dershowitz's strategic argument seemed surreal to reality-grounded lawyers, and even the Republicans' sole witness in the house proceedings, Jonathan Turley, disagreed. Ridiculed as the Dershowitz Doctrine at the Trump-reviled CNN, the novel theory was soon gospel within the closed Republican loop, and must have thrilled the party's dark mass, das Trumpenvolk.
As impeachment post-mortems begin, there's concern about the foreseeable consequences of giving a lawless president the powers he craves.
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During the trial's often diversionary question-and-answer phase, the supercilious Patrick Philbin - a product of Boston's Roxbury Latin School (est.1645), Yale, Harvard Law and Cambridge - glibly fielded Dorothy Dixers from Republican senators. He later added his irritating voice to the closing arguments.
But there is more to Patrick Philbin's CV: a history of meretricious and tainted legal advice for Republican administrations. While a few journalists noted Philbin's former work for the Office of Legal Counsel, no one seemed to recall that he left his unclean handprints all over the infamous OLC "torture memos" and George Bush's Guantánamo policies.
Apparently no one remembered the opportune "legal" opinions that Philbin concocted for the "war on terror", nor his support for torture in meetings of the National Security Adviser's "Principals Committee".
Before the first prisoners arrived at Guantánamo Bay, Philbin (with OLC lawyer John Yoo) advised that the Naval Base lay beyond US federal court jurisdiction, and he also made a baseless finding that the Bush-fabricated military commissions, later struck down by the supreme court, were valid.
Philbin: flawed legal advice
Worst of all, Philbin joined OLC head Jay Bybee in the first Justice Department memo endorsing the CIA's "enhanced interrogation techniques", practices which no lawyer acting in good faith could regard as other than torture, or "cruel, inhuman or degrading treatment or punishment", clear violations of US statutes, caselaw, and/or international law.
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Legal professionals involved with Trump should be careful. After Watergate, 14 lawyers were disbarred or suspended, and 11 convicted of crimes. As before, unprincipled, partisan lawyers are coming to light, not only in the White House, but also in a Justice Department controlled by Trump's highly political AG, Bill Barr.
Consider Assistant AG Brian Benczkowski. Like Philbin, he once defended the Bush administration's use of torture, justifying CIA "interrogations" in "Benczkowski letters" provided to the senate.
Now head of DoJ's Criminal Division, Benczkowski (who has other ethics problems) was required to review the whistleblower complaint regarding the Trump phone call to Ukraine that ultimately led to impeachment.
Just Security noted that Benczkowski ...
"... refused to even consider whether the July 25 phone call was evidence of bribery, honest services fraud, or other criminal violations. Instead, he narrowly focused on whether Trump's request for an investigation of Biden was an illegal solicitation of a campaign contribution from a foreign national ... [and] concluded that Trump did not violate campaign finance law … At every turn, lawyers at the top of the Justice Department - the National Security Division, the Office of Legal Counsel and the Criminal Division - protected Trump rather than act 'in the best interest of' their client, the United States."
