The trial of Donald J Trump

With the articles of impeachment having reached the Senate, the managers appointed, and the oath to do impartial justice administered, the trial of Donald J Trump has officially begun.

The President is accused of misusing his office for personal gain. Through a whistleblower it was revealed that Trump tried to put pressure on Ukraine to investigate corruption allegations against the current front-runner for the Democratic nomination: Joe Biden. Trump attempted to use a nearly $400 million package of military assistance to Ukraine as leverage to get them to cooperate. He was helped by his lawyer, Rudy Giuliani, and a man who can only be described as Giuliani’s henchman, Lev Parnas. Parnas was one of the key players interacting with the people in Ukraine to dig up dirt on Biden. He has since been arrested and is now willing to cooperate with investigators.

The Democrats strategically delayed initiating the trial for over a month, wary of a Republican-controlled Senate that had made it clear that they would not allow any new evidence to be produced during the trial. The delay served as a method for Democrats to gather all the evidence they could, so as to not rely on the Senate. This strategy has borne fruit. Recently, House Democrats released documents from Lev Parnas that make a compelling case against Trump.

Among the most important documents is a letter by Giuliani to the President of Ukraine in which he makes it clear that Trump had full knowledge of the conspiracy. There are also text messages by Parnas to a Ukrainian prosecutor in which he promises to help remove Maria Yovanovitch, the ambassador to Ukraine, in return for the prosecutor’s help in gathering information on Biden.

With the evidence mounting, Trump turned to construct a team of lawyers that are every bit as morally repugnant as him for defending himself. Chief among them is Kenneth Starr, the counsel who played a key role in the Clinton impeachment. His unhealthy obsession with Monica Lewinsky and handling of the impeachment led to Trump once calling him a ‘freak’. In 2016, Starr was removed as president of Baylor University for his role in covering up a sexual assault allegation. Then there is Alan Dershowitz, whose rogues’ gallery of former clients includes OJ Simpson, Jeffrey Epstein, and Harvey Weinstein. He brings his personal baggage as well; Prince Andrew’s accuser, Virginia Giuffre, has claimed that Epstein offered her to Dershowitz as a teenager for sex.

What seems to unite the President and his legal team is their inglorious relationship with women.

The weak moral character of this legal team is translating into a weak legal defence. In their reply to the summons by the Senate, Trump’s legal team has put the argument that while it may be true that the President abused his power, that does not amount to a crime. Hence, there is no impeachable offence.

To understand the absurdity of this argument, let us first look at what the US Constitution says about impeachment. Under the Constitution, a President can be impeached on the basis of treason, bribery, or other high crimes and misdemenours.

There is broad consensus amongst constitutional scholars that the President does not have to violate an actual criminal statute in order to commit an impeachable offence. As long as the President’s actions fall within the categories given in the Constitution, impeachment can occur. As far as ‘bribery’ is concerned there seems to have been a clear ‘quid pro quo’ associated with Trump’s communication with Ukraine: investigate Biden and get military aid. Trump would directly benefit from an investigation into Biden since it would impact his re-election. Soliciting personal favours through the use of public office falls within the Constitutional definition of bribery as Stanford’s Pamela S. Karen pointed out in her testimony before the House of Representatives.

As far as abusing power is concerned, let’s flip over to the Federalist Papers, the debates on the ratification of the US Constitution. In Federalist No 65, Alexander Hamilton described an impeachable crime as “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to society itself.” Hamilton and the people who wrote the US Constitution believed that a “high crime and misdemeanour” encompassed the abuse of presidential power for personal gain. As Harvard University’s Noah Feldman has explained, since the President cannot be tried as a criminal, impeachment was meant to be the sole power under the Constitution to deal with the abuse of his power.

From an objective lens, it is clear that Trump should be removed from office. However, we cannot lose sight of the fact that the Senate is controlled by Republicans led by Mitch McConnell. McConnel did not mince words in indicating his intent to protect Trump, whatever the cost. This would of course mean violating his oath as a Senator, but that hardly seems to matter in a polarised Congress. To remove Trump from office, two-thirds of the Senate must vote to do so. That seems implausible at the moment, despite some glimmers of hope that the sheer evidence against Trump has caused one or two Republicans to become uneasy with the stance of their party.

Instead, it seems Democrats have their eyes on the real jurors for this trial: the American people. The Democrats hope that by showing the people the extent of Trump’s abuse of power they can persuade the all-important swing voters in the coming elections to do what the Senate won’t: remove Trump from office. These swing voters will determine the fate of American democracy for the near future. Given the intense partisan polarisation that has swept through America, those who oppose and those who defend Trump are unlikely to change their opinion for the coming election. But the moderates and the undecided may see the unfolding trial as a litmus test for what they will do come election day.

Published in The Express Tribune, January 21^st, 2020.

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