President Trump’s Defense, by Robert Gore

Democratic representatives should think twice before they vote to impeach President Trump.

I thought I had said all I was going to say on “Ukrainegate” in my article “Make the Truth Irrelevant.” Then I read a column on the Internet by Wall Street Journal columnist Peggy Noonan whose very title: “Trump’s Defenders Have No Defense” (WSJ, 11/21/19) bespeaks its idiocy. Unfortunately, it also represents a lot of what’s being peddled by the mainstream media.

How would Noonan or anyone else outside Trump’s circle know whether he does or does not have a defense when the rules of the only body that has pursued the case against him preclude him from offering a defense? In the House impeachment hearings, Trump’s defenders cannot call their own witnesses, cannot confront the whistleblower whose complaint launched the case, cannot challenge hearsay evidence and have it excluded, and cannot probe the motives or possibly illegal behavior of his accusers.

Noonan further embarrasses herself with the following: “As to the impeachment itself, the case has been so clearly made you wonder what exactly the Senate will be left doing. How will they hold a lengthy trial with a case this clear?” She reveals her own ignorance of the law and facts of this particular case, and complete lack of decency or sense of fair play, rendering such a judgment after hearing only one side of the case.

Noonan has prompted this analysis of possibilities concerning Trump’s defense in a Senate trial. It assumes that standard American judicial rules, procedures, and principles will be in force during the trial. Disclaimer: I am a lawyer, but I am an inactive member of the California Bar Association and have never practiced law.

The best case for a defense attorney is one in which the attorney can say: Assume what the prosecution is saying is true, my client has not broken the law or committed a crime. During his phone call with Ukraine’s President Volodymyr Zelensky, President Trump asked for investigations of three matters, but he did not explicitly link receipt of US aid that had been held up to Zelensky conducting those investigations. Suppose, for argument’s sake, that he had either explicitly asked for that quid pro quo or that Zelensky could reasonably infer he was asking for such a quid pro quo. Trump’s first line of defense would be to challenge the ubiquitous characterization—at least among Democrats and the media―of such a link as a crime.

According to the transcript of the call, Trump asked Zelensky to look into the company Crowdstrike, which has been the only entity allowed to examine the DNC servers that were allegedly hacked by the Russians. In a related query, he alluded to possible Ukrainian involvement in initiating the Russiagate fiasco. Later in the phone call, he said: “There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it… It sounds horrible to me.”

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Assume for argument’s sake that Trump was holding up aid to get Zelensky to investigate Crowdstrike, possible initiation of Russiagate, and the Bidens. Nobody is calling the first two requests illegal because investigations would not directly redound to Trump’s political benefit (but might well redound to his accusers’ political detriment, see below). Only the third request, if receipt of aid was conditioned on compliance, has been termed illegal, because it could harm Trump’s political opponent, Joe Biden, and presumably benefit Trump.

What if the subject of that third request was not Biden and son, but rather some nonpolitical but prominent US figure and son, the investigation of whom would yield no political benefit to Trump? The president would have a strong argument that there was a prima facie (literally translated as “at first face” or “at first appearance”) case of corruption against the nonpolitical figure and his son. He could assert that he had a duty as the chief executive of the laws of the US to launch a US investigation, and to press—because so much of the alleged corruption happened in Ukraine and involved Ukrainian citizens, companies, government bodies, and other entities—the Ukrainian president to launch an investigation. The US and Ukraine have a treaty, Mutual Legal Assistance in Criminal Matters ratified by the Senate in 2000 and signed by Bill Clinton. Trump could argue that under that treaty he would be well within his powers to ask for such an investigation. He could cite a letter Clinton sent to the Senate recommending passage of the treaty, which lists a number of ways assistance can be rendered, with a final catch-all for “any other form of assistance not prohibited by the laws of the requested state.”

If Trump then explicitly tied US financial and military assistance meant for Ukraine to President Zelensky initiating that investigation against the nonpolitical father and son, no one would bat an eye. In fact, many would commend Trump for applying that leverage. US foreign aid has often had explicit provisions about reducing corruption as a condition of the recipient country receiving the aid. A US president informally linking the two would be a nonevent.

It only became an event because the figures to be investigated were Joe and Hunter Biden. Here the proper question for Trump to ask is: So what? Yes, Trump might benefit politically from such an investigation, prosecutors and politicians often benefit politically from prosecutions, but does that exempt the Bidens from investigation of what are at least prima facie instances of possible corruption? Implicit in the Democrats’ case against Trump is the placement of the Bidens above the laws that would apply to anyone else (except perhaps other favored political figures).

If the prosecution in the Trump impeachment trial wants to contest that characterization and conclusion, then Trump’s defense should insist on calling father and son as witnesses to explain and be cross-examined. How does Hunter’s dealings with Burisma not make out prima facie corruption? How does Joe’s insistence that the prosecutor who was investigating Burisma be fired, and his threat to put a hold on foreign aid to Ukraine not make out prima facie corruption? Hunter, Joe, and their defenders can explain why there should have been no Ukranian investigation, and why Trump should not have used all the leverage he had, including putting a hold on aid—just as Joe Biden threatened to do (and bragged about in a speech before the Council on Foreign Relations) to get the prosecutor fired—to prompt Ukraine to launch such an investigation.

If what Trump did is a crime, so too is what Joe Biden did. However, because Biden publicly bragged about what he did, proving Biden’s criminal culpability would be far easier than proving Trump’s. 

It may be news to Peggy Noonan, but unlike in the House proceedings, in the Senate Trump will be able to avail himself of two bulwarks of the American legal system: the Sixth Amendment and the hearsay exclusion. The Sixth Amendment protects defendants’ rights, “to be confronted with the witnesses against him;” and “to have compulsory process for obtaining witnesses in his favor.”

The hearsay exclusion bars “testimony in court of a statement made out of the court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” Mutyambizi v. State, 33 Md.App. 55, 363 A.2d 511, 518. Hearsay is “evidence not proceeding from from the personal knowledge of the witness, but from the mere repetition of what he heard others say. That which does not derive its value solely from the credit of the witness, but rests mainly on the veracity and competency of other persons. The very nature of the evidence shows its weakness, and it is admitted only in specified cases from necessity.” Black’s Law Dictionary, 5th Edition, 1979, West Publishing Co. The 6th Amendment and the hearsay exclusion are related, they both embody fundamental fairness by recognizing a defendant’s right to confront and cross-examine witnesses against him.

While Adam Schiff was able to keep the whistleblower whose memorandum initiated the House’s impeachment investigation from testifying, such protection would not be available in the Senate trial. Trump has the right to confront his accusers. There are allegations that Schiff and members of his staff conferred with the whistleblower before the memorandum was publicly disclosed. Trump’s defense team could argue that Schiff, by conferring with the whistleblower and leading the House impeachment investigation, was also an accuser within the meaning of the 6th Amendment. If that argument prevailed, Schiff would have to testify and be cross-examined. Who knows where that might lead.

Trump would also have the 6th Amendment right to call friendly witnesses, not just to dispute the particulars of his alleged criminal conduct, but to challenge the credibility of adverse witnesses. Again, who knows where that might lead.

Trump would also contest the whistleblower’s testimony, and the testimony from many of the witnesses who appeared in the House proceedings, as hearsay. There is no doubt that the testimony is hearsay, so it would have to be admitted under one of the hearsay exclusion’s exceptions, which would be problematic. Even if it was admitted, the witnesses would be subject to cross-examination, and that didn’t always go so well for Schiff and company in the House. Noonan cited Ambassador to the EU Gordon Sondland’s testimony concerning the alleged quid pro quo that, “everyone was in the loop, it was no secret.” She said his testimony “was kind of the whole ballgame.” Watch Republican Representative Mike Turner’s shred that testimony.

Perhaps Noonan didn’t see that video.

The one item of evidence that’s clearly admissible is the transcript of Trump’s call with President Zelensky. The authors of that transcript would be available to testify as to its authenticity, which means it fits within a hearsay exception. It’s also conceivable that Zelensky, Trump, or both could testify as to the subject matter, tenor, and tone of their conversation.

The transcript contains no explicit mention of a quid pro quo. Both Trump and Zelensky deny a quid pro quo. If the hearsay presented in the House and the whistleblower’s hearsay are barred in the Senate, it would severely weaken the prosecution’s case. It may be news to Peggy Noonan, but the prosecution has the burden of proof (although it’s unclear if the beyond-a-reasonable-doubt standard would apply). Without the hearsay, the prosecution won’t have much in the way of proof, and there is evidence that arguably tends to exonerate Trump. Supporting the two presidents’ assertions of no quid pro quo,  Zelensky has not initiated an investigation of the Bidens, and Trump did eventually release the aid to Ukraine, although he may have been prompted to do so by the House, which was set to override his hold and release the aid.

In a conventional criminal case, the defendant can attack the integrity, impartiality, and conduct of the prosecution. If Trump is allowed to do so, he would have two strong lines of attack. Noonan approves of “the sober testimony from respectable diplomats,” who made it “clear in a new and public way that pretty much everyone around the president has been forced for three years to work around his poor judgment and unpredictability in order to do their jobs.” Whether that’s true or not, what is such testimony even doing in an impeachment investigation? Trump’s managerial style, and more importantly, his publicly expressed skepticism concerning some of the policies championed by “respectable diplomats” cannot be considered “Treason, Bribery, or other high Crimes and Misdemeanors” (Article II, Section 4, US Constitution). Trump could object to such testimony on grounds of relevancy and argue that his accusers were trying to criminalize differences in policy and perceived shortcomings in his personal style.

Trump’s other line of attack would be to illuminate the Democrats’ many questionable ties to Ukraine, and argue that the real aim of their impeachment effort is to prevent him from possibly exposing and jeopardizing those ties.

Ostensibly, Ukraine is a minefield for Democrats. In 2014, the US sponsored a coup against Ukraine’s duly elected president, Viktor Yanukovych, who had aligned the country with Russia rather than the EU. That coup has not worked out well for the US. Russia quickly annexed Crimea, which had been part of Ukraine, and has aided a eastern Ukrainian separatist movement that favors Russia and bitterly resents the coup.

The puppet Ukraine government has been a corrupt money pit for Western aid, loans, and loan guarantees, featuring, among many questionable characters, a coterie that reveres Nazi Germany and the role it played in World War II. The Ukrainian government is a loser, but it’s our loser and Trump has doubled down on Obama’s failure, backing monetary aid and weapons shipments to the beleaguered nation.

Russiagate was launched by Ukrainian officials who disseminated rumors in 2016 that Trump was in league with Russia and later, openly questioned his suitability for the presidency. The DNC dispatched a contractor, Alexandra Chalupa, to Ukraine to search for compromising material on Paul Manafort, then Trump’s campaign chairman. In other words, the Democrats sought information from a foreign power to influence the 2016 election, precisely what they groundlessly accuse Trump of doing.

CrowdStrike, the firm that investigated the server the DNC wouldn’t let the FBI or NSA touch, was founded by Ukrainian Dmitri Alperovitch, a senior fellow of the anti-Russian Atlantic Council think tank, and funded by a fanatically anti-Russian oligarch, Victor Pinchuk, who donated at least $25 million to the Clinton Foundation before the 2016 election. CrowdStrike never even produced a final report on its Russian hacking investigation, and had to revise and retract statements it used to support its conclusion.

“Make the Truth Irrelevant,” Robert Gore, SLL, 10/16/19

The reason the Democrats have repeated “quid pro quo” over and over is because that’s the one narrow point they can focus on without their Ukrainian shenanigans blowing up in their faces. Trump mentioned CrowdStrike and the possible Ukrainian initiation of the fruitless Russiagate investigation in his call with Zelensky. As the above-cited SLL article makes clear, those are two issues the Democrats definitely want to avoid, and they’re trying mightily to separate the issue of the supposed quid pro quo from the linked issue of Biden father and son’s possible corruption. The Trump defense team should pound the table on the Democrats’ odiferous involvement with Ukraine.

Impeachment is always a political process. Ultimately, legal considerations will be secondary to politics. However, the Democrats’ political strategy appears as flawed as their legal tactics. Assuming the House votes for impeachment, the case moves from the forum they controlled to the Senate, which the Republicans control. Never underestimate the cowardice of Republican politicians, but they cannot afford to roll on this one, given Trump’s popularity within the party’s rank and file. House Republicans voted unanimously against the impeachment proceedings. Any Republican voting in favor would have risked almost certain defeat in the next election. Republican Senators perceived as not giving Trump a fair trail, or who vote to convict, will suffer political backlash, especially those Senators up for reelection in the next election.

At the very least, Trump should be able to exercise all the rights afforded defendants in criminal trials. I have suggested ways he can avail himself of those rights, and he can hire attorneys who are far smarter and more experienced than I am. His team can mount a strong defense. Although the mainstream media will be solidly against him, and their commentary will undoubtedly be biased and tendentious, there will be wall-to-wall television coverage and thousands of YouTube videos, so people can see for themselves what transpires.

Those optics—to use a beloved Washington and media word—could well bolster support for Trump and hurt the Democrats. The Republicans may want to drag his trial out as long as possible. If his defense is effective and the Senate votes not to convict, the Democrats will have given him the last word as the House impeachment hearings fade from memory. He will have a golden campaign issue to rally his base and the Democrats will be even more discredited than they were after the Mueller report (with everyone but their own rabid base).

Trump’s defenders have a solid defense if they’re given a fair chance to present it in a forum governed by the standard precepts of American law. If Peggy Noonan’s column represents what the Wall Street Journal considers informed thought and commentary, I’m glad I cancelled my subscription long ago. Please feel free to forward this to family, friends, enemies, other concerned and unconcerned citizens, members of Congress, the media, and Peggy Noonan, care of the Wall Street Journal.