Trump’s lawyers decry House impeachment case as ‘defective’

Clerk Cheryl Johnson with Sergeant at Arms Paul Irving
House Clerk Cheryl Johnson and Sergeant at Arms Paul Irving lead House managers Jan. 15 in delivering the articles of impeachment to the Senate.
(Kirk McKoy / Los Angeles Times)

President Trump’s legal team on Saturday accused the House of a “brazen and unlawful attempt” to overturn the 2016 election in a scathing response to the impeachment trial summons issued by the Senate ahead of its trial to decide whether to remove the president from office.

The House, in a separate 111-page brief filed Saturday, countered by calling Trump’s alleged attempt to involve a foreign power in the 2020 election — the issue at the base of the House impeachment — the exact reason the framers of the Constitution added such a drastic remedy to check abuses by the executive branch.

The filings were the first of several arguments Trump’s lawyers and House managers are expected to file before the Senate formally begins the impeachment trial Tuesday, giving a taste of the harsh rhetoric expected for the next several weeks in only the third presidential impeachment trial in U.S. history.

The Senate has not agreed on a set of rules to govern the trial, such as how long each side gets to speak and whether witnesses will be called. It could be Wednesday before arguments begin on the merits of the two articles of impeachment.

The House last month voted largely along party lines to impeach Trump on two counts: abuse of power for withholding military aid to Ukraine and a coveted White House meeting unless the newly elected president of Ukraine opened investigations into Trump’s political rivals; and obstruction of Congress for blocking current and former federal employees from producing documents or testifying as part of the House investigation.


The president’s seven-page filing argues that the articles “violate the Constitution,” are “defective in their entirety” and should not be considered valid because they don’t cite a specific federal law that has been broken.

Most constitutional scholars agree that the term “high crimes and misdemeanors,” which appears in the impeachment clause in the Constitution, does not refer to a violation of federal criminal statutes, but to a crime against the American public at large, and that it is up to Congress to determine what qualifies.

Beyond letters to Speaker Nancy Pelosi (D-San Francisco), the president and his lawyers explicitly refused an invitation to participate in the House investigation and impeachment hearings, saying the process was unfair.

Their filing to the Senate on Saturday, a day after naming five outside lawyers to the president’s defense team, marks the first time they’ve fully engaged and given a sense of their legal strategy.

Trump’s legal team, led by White House Counsel Pat Cipollone and Trump personal lawyer Jay Sekulow, challenged the House impeachment on both procedural and constitutional grounds.

The filing states that Trump was mistreated by House Democrats during their investigation. It says he did nothing wrong by withholding nearly $400 million in congressionally approved aid, because the executive branch dictates foreign policy; or by preventing federal officials from complying with the investigation, because the president needed to protect the confidentiality of executive branch information and decision making.

“By approving the articles, the House violated our constitutional order, illegally abused its power of impeachment and attempted to obstruct President Trump’s ability to faithfully execute the duties of his office,” they wrote.

The filing from the House managers, the seven Democrats tasked with proving the House case to the Senate, is effectively the prosecution’s opening brief of the trial.

Trump’s legal team has until noon Monday to file a similar trial brief, where the legal justifications they plan to rely on should become more clear. The House has a chance to rebut it in a brief due by noon Tuesday, an hour before the trial proceedings are expected to begin for the day.

The House managers’ filing gathers the public testimony and closed-door depositions of more than a dozen current and former federal officials. The officials had raised concerns about Trump and his personal attorney Rudolph W. Giuliani’s attempts to get Ukrainian President Volodymyr Zelensky to announce an investigation into former Vice President Joe Biden’s son Hunter and the Ukrainian energy company he worked for, as well as into the debunked theory that Ukraine, not Russia, sought to interfere in the 2016 U.S. presidential election.

Trump’s “effort to gain a personal political benefit by encouraging a foreign government to undermine America’s democratic process strikes at the core of misconduct that the Framers designed impeachment to protect against,” the managers wrote.

The evidence cited in the filing includes new information that has become public in the month since the Dec. 18 House vote to impeach Trump, including text messages and audio recordings provided by Lev Parnas, a confidant of Giuliani’s who faces federal campaign finance violation charges. Parnas has turned on Trump and Giuliani in recent weeks.

The evidence also includes information unearthed by multiple news organizations who have sued the administration for access to the documents Trump refused to provide the House.

It was not up to Trump to decide whether to release the military aid to Ukraine, which had been approved by Congress, the House managers argue.

The nonpartisan Government Accountability Office, the investigative arm of Congress, made the same determination Thursday, saying in a report that federal law “does not permit the president to substitute his own policy priorities for those that Congress has enacted into law.”

In their brief, the House managers argue that “evidence overwhelmingly establishes” that Trump is guilty of both charges, and that the only question is whether the Senate will fulfill the responsibility placed upon it by the Constitution and remove him from office.

“If the Senate permits President Trump to remain in office, he and future leaders would be emboldened to welcome, and even enlist, foreign interference in elections for years to come,” they write.

It takes a vote of two-thirds of senators to remove a president from office, meaning 20 Republicans would have to join 47 Democrats to convict Trump. So far, no Republicans have indicated a willingness to do so.

The previous two presidential impeachment trials, of President Clinton in 1999 and President Andrew Johnson in 1868, resulted in acquittals.