WASHINGTON ― As it struggles for a “message” against impeachment, Donald Trump’s White House seems to be learning a lesson known to criminal defense lawyers for centuries: Things are a lot harder when the accused has already confessed and the prosecutors have loads of other evidence.
Trump’s staff has called the House’s impeachment inquiry “a star chamber,” “rigged,” “a sham” and “politically-motivated, closed door, secretive hearings.”
Trump himself has complained about “zero due process,” “the Democrats Scam,” and “a lynching.”
All these criticisms, though, are about the procedure Democrats are using to gather evidence that likely will be used to draw up articles of impeachment. White House staff almost never make any fact-based arguments, other than blanket assertions such as “President Trump has done nothing wrong,” as press secretary Stephanie Grisham said in a statement Tuesday night.
One former federal prosecutor has a theory why.
“It is often said of trial lawyers that when the law is not on their side, they pound on the facts. When the facts are not on their side, they pound on the law. When neither the law nor the facts are on their side, they pound on the table,” said Danya Perry, referring to poet Carl Sandberg’s quip. “It seems there is an awful lot of table-thumping going on right now from the Trump administration and its allies.”
Indeed, Trump’s release of the rough transcript of his July 25 phone call with Ukrainian President Volodymyr Zelensky revealed that he asked for the “favor” of investigating the Democratic candidate whom he most feared in 2020 as well as a debunked conspiracy theory that attempts to discredit the U.S. intelligence assessment that Russia helped Trump win the 2016 election. The next day, House Intelligence Committee Chairman Adam Schiff (D-Calif.) released a whistleblower’s complaint stating that those investigation requests were tied to Trump releasing $391 million in congressionally approved aide to Ukraine.
Those documents alone were enough to swing dozens of impeachment-skeptical Democrats to switch and support an impeachment inquiry, as well as to start the shift in attitude among the public at large. Majorities had once opposed impeachment proceedings. Now they support it.
Days after the release of the transcript, Trump said during a media availability on the South Lawn that Zelensky should indeed investigate former Vice President Joe Biden and his son, and that China should, too.
And just last week, Trump’s acting chief of staff, Mick Mulvaney, admitted that the release of the aid, including $250 million in military assistance to fend off a Russian incursion in the eastern part of Ukraine, had been conditioned upon Zelensky’s agreement to start the investigations. “I have news for everybody: Get over it. There’s going to be political influence in foreign policy,” he said.
“They have no defense for what Trump did. The tide has turned.”
In recent weeks, those documents and public comments have been corroborated in closed-door testimony from former and current administration officials.
All of that, said former Republican Rep. Joe Walsh, is pretty much impossible to refute. “They have no defense for what Trump did. The tide has turned. And they know it. He will be impeached,” said Walsh, who is now challenging Trump for the 2020 nomination. “And they now fear removal. And they should.”
Josh Schwerin, senior strategist for the group Priorities USA, which is working to help Democrats defeat Trump in 2020, said the White House and its allies have little choice but to complain about process. “Republicans know that what Trump did was wrong and an impeachable offense, so instead of continuing to try and defend the indefensible, they are attempting to distract with bad-faith talking points about process,” he said.
“Process,” though, is not a dodge, said one senior White House official, but rather a meaningful and serious part of what is happening.
“Without allowing due process rights to the president, it’s impossible to challenge the testimony of witnesses whose statements are being taken by chairman Schiff,” the official said on condition of anonymity, arguing that the two previous presidents who faced impeachment in modern times, Richard Nixon and Bill Clinton, were both afforded that opportunity.
“The president has no rights to present evidence or to cross-examine witnesses. And that is how you determine the truth,” the official said.
One former longtime Trump defender, however, said that Trump has no right to take part in the initial investigation, just as Nixon and Clinton did not. “Their process complaints are incorrect. Information gathering is being done in front of both parties and behind closed doors so as not to queer or corrupt testimony,” said Anthony Scaramucci, who briefly served as Trump’s communications director and who turned against Trump recently over his racist attacks against four Democratic congresswomen.
He said he understands, nevertheless, why the White House relies on the “process” arguments. “What choice do they have? They have no supporting facts,” Scaramucci said.
Rory Cooper, a Republican consultant and onetime top aide to former House Majority Leader Eric Cantor, agreed that “there is no way to defend the president’s conduct” and that Republicans are “stuck in a process argument” ― but added that House leaders are damaging their own case by not being more transparent.
“Democrats are giving them too much ammunition for that argument by not presenting a more clear picture of the process involved and when public testimony will occur and who will do the questioning,” Cooper said. “So long as this process takes place in private session with leaked materials, Republicans will be able to have these shows and keep the base questioning the integrity of the investigation and thus keep impeachment polling below what it will take to move Republican members away from the president.”
Perry, who once served as the deputy chief of the criminal division for the U.S. attorney’s office in New York City, said the process arguments are designed to obfuscate just how bad the facts emerging about Trump’s Ukraine dealings have been.
“The facts, as they are trickling out of congressional hearing rooms, are not good, and they are getting worse. The law also is not good,” she said, adding that the White House’s complaints are just plain wrong. “This is not a judicial process, with all its attendant rules and procedures. This is a political process, and the process largely is whatever Congress says it is. So the complaining coming out of the White House is the rhetorical equivalent to pounding as loudly as possible on the table and hoping to distract and misdirect.”