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Lawyer Analyzes Republicans’ Impeachment Defenses

Among the American electorate, some of the most common reactions to the ongoing impeachment saga currently taking place in Congress are confusion and frustration with the political system. A widely-shared New York Times article quotes a nurse, who despite not being able to see herself voting for Trump in 2020, said, “There’s so much information that sometimes it’s hard to decide which is the truth and which is just rumors, so I just don’t pay attention to it.” According to various polls, roughly half of Americans think Trump should be impeached and removed from office, but the president’s approval rating has remained shockingly steady even after overwhelming evidence of Trump’s attempt to coerce Ukraine into supporting his reelection campaign came to light. 

Given the contradictory and complex narratives of events being promulgated by Democrats, Republicans, and the media, it’s not hard to understand why so many Americans are confused and disinterested in politics. As such, during a time when disinformation is propagated by foreign adversaries in order to harm the American public’s ability to discern truth, it is useful to listen to the arguments made by legal experts and other nonpartisan professionals who have a strong understanding of legal and political matters. For people who don’t know what to make of Democrats’ accusations and Republicans’ defenses, lawyer Devin J. Stone posted a lengthy Youtube video analyzing the Republican arguments against impeachment from a legal perspective.

Stone begins his video by observing that in the mainstream media, many have claimed that the Republican arguments have fallen apart completely after the conclusion of public impeachment hearings. In response, he says he will try to “steelman” the Republican arguments, which is to say that in order to ensure fairness, he wants to present the most convincing possible interpretation of their arguments. The Republican narrative surrounding impeachment-related issues is multifaceted and disorganized, so Stone takes his time in breaking down each argument to determine whether they are logically sound. The first argument he tackles is the claim that there was no quid pro quo, which has been the preferred defense of President Trump. Stone points out that Ambassador Gordon Sondland, a Trump appointee who donated a million dollars to Trump’s inauguration, explicitly testified that there was, in fact, a quid pro quo, that it was directed by the president, and that “everybody was in the loop.” Sondland’s testimony is corroborated by the other witnesses as well as documentary evidence such as text messages and the memorandum of the July call released by the White House.

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While Republicans have correctly pointed out that none of the fact witnesses called before congress used the word “bribery” in their testimonies, Stone argues that it is not the role of fact witnesses to make judgments about whether Trump’s conduct amounted to the legal definition of “bribery” as the House of Representatives holds this responsibility when they draft articles of impeachment. Many Republicans’ arguments have since shifted to the claim that although there was a quid pro quo, it was not improper, as quid pro quos happen “all the time” in foreign policy; while this is true, the quid-pro-quo in question differed from standard foreign policy tactics as it was used in service of assisting the President’s reelection campaign.

Another argument voiced by Representative Kevin McCarthy claims that because the quid pro quo was ultimately unsuccessful, as Ukraine did not announce an investigation into the Bidens and the withheld military aid to Ukraine was eventually released, there was no wrongdoing. It is true that the scheme ultimately failed; however, Stone points out that attempted crimes are still crimes even if they are unsuccessful, and recent reporting suggests that Trump released the aid to Ukraine because he learned about the whistleblower complaint, and that the president of Ukraine would have announced an investigation into the Bidens if it weren’t for the impeachment inquiry. 

While Republicans have complained that all of the evidence so far is “hearsay,” Stone points out that hearsay evidence can be very powerful in court, and that direct evidence unearthed by the inquiry supports the hearsay evidence. Additionally, the reason that little direct evidence has been uncovered is that Trump has blocked witnesses with firsthand knowledge of events from testifying, which in itself suggests obstruction of justice, another impeachable offense. Furthermore, the administration has not provided a justification for the aid being withheld in the first place other than that the president ordered it, an act that was likely illegal as the aid in question was approved by Congress and signed into law by Trump himself. Under the Constitution, Congress has the “power of the purse,” and the president does not have the authority to subvert Congress’ spending decisions.

As citizens of a democratic republic, we share an obligation to understand political matters in order to preserve the American tradition of democratic governance.

Some have correctly pointed out that President Zelensky of Ukraine has said that he did not feel any pressure to open an investigation into the Bidens. However, Zelensky’s claim is dubious given reporting about how Ukraine reacted to Trump’s phone call, and Stone points out that in a legal context, it doesn’t even matter whether or not Zelensky understood that he was being pressured to investigate Biden, as the relevant legal question is whether Trump intended to pressure the foreign country for his personal political benefit. Representative Jim Jordan has essentially taken a “no harm, no foul” position, saying that because the aid was released and Ukraine did not open an investigation, no wrongdoing occurred; however, this argument ignores the fact that Ukrainians died in connection with the United States’ withholding of assistance, and the existence of this alleged bribery scheme itself has a harmful effect on democratic institutions, namely on the integrity of elections.

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One of the Republican arguments is literally that Trump could not have committed the crime in question because he is too incompetent to do so, and as such there is no “mens rea,” or criminal intent. Stone calls this the “too dumb to crime” defense, which is undermined by the fact that the call memorandum clearly shows intent, as does Trump’s decision to release the aid after getting caught, and while some of the evidence is circumstantial, it is powerful nonetheless. Republicans have also argued that the president controls foreign policy, and as such cannot be impeached over foreign policy decisions; again, while it’s true that Trump has the right to control foreign policy, this does not mean he can exercise this right to do things that are illegal or impeachable. Additionally, some Republicans have presented a theory that the State Department went rogue, acting on its own instead of on behalf of the president, but this is directly contradicted by the call memorandum and witness testimony. Republicans have said that the president was simply trying to root out corruption in Ukraine; Stone points out that this very well may have been one of the president’s motivations, but adds that people can have multiple motivations for doing things, and the evidence strongly suggests that at least one of Trump’s motivations was to help his own campaign. Furthermore, the President has his own, superior powers to investigate corruption in Ukraine, such as the FBI and the Justice Department, and as such could have directed these agencies to investigate Ukrainian corruption rather than asking Ukraine to do so.

The final Republican argument, which few if any Republicans have publicly made as of yet but likely will soon, is that Trump’s actions were wrong but not impeachable. Ultimately, this is the decision that Congress is tasked with making, but the American people will have a chance to weigh in on the matter in the next election, and as such should know that one of the reasons that impeachment was included in the Constitution was that the Founders were worried that a president might use the powers of his office to harm American democracy.

While this article is lengthy, it does not cover all of the current political discourse surrounding impeachment, as Republicans are proliferating a counter-narrative implicating Joe Biden and his son in corruption. There’s no doubt that the facts surrounding the impeachment inquiry have become extremely complex, and Americans shouldn’t be blamed for prioritizing issues in their personal lives over paying attention to politics. However, as citizens of a democratic republic, we share an obligation to understand political matters in order to preserve the American tradition of democratic governance. As Republican senators are likely to vote to acquit Trump on impeachment charges, the upcoming election in 2020 functions not only as a referendum on Donald Trump, but on the concept of American democracy as a whole, as Trump has been actively subverting democratic norms and standards since taking office, most notably by his active attempts to cheat in the next election by abusing the powers of his office to coerce foreign powers into interfering, as Democrats allege. As such, it is incumbent upon each of us to spend some of our time and energy on understanding the present political crisis, as the future of American democracy potentially hinges on the outcome of the 2020 election.