The House impeachment managers and the lawyers for President Donald Trump have both filed their memorandums for the Senate impeachment trial which gets underway in earnest today. While the two documents are nearly identical in length, the president’s is by far the stronger document.
Neither memorandum breaks new legal, political or constitutional grounds, but there was no expectation they would. The only “new” evidence – if it can be characterized as such – is that the managers’ memorandum includes references to matters that came to light in the month since the two Articles of Impeachment were passed by the House. The managers discuss statements recently made by Ukraine-American operative Lev Parnas in television interviews and refer also to a Government Accountability Office memorandum released last week after being requested by Democratic Maryland Sen. Chris Van Hollen. The GAO report found fault with the grounds on which the Office of Management and Budget temporarily delayed the release of military assistance dollars to Ukraine last summer.
Even if the Senate decides to consider this “new” evidence, however, it adds nothing to the underlying question confronting the upper chamber – whether President Trump is guilty of the offenses alleged against him by the Democrat majority in the House and should be removed from office. If the grounds on which this seminal question is to be answered are to be gleaned from these first filings, the answer is a resounding, “Not Guilty.”
While the trial brief filed on the president’s behalf is over 100 pages long, the operative language, capturing the full essence of why the Senate trial should result in acquittal, is set forth in the preliminary “Answer” filed last Saturday and which continues as a central theme throughout the memorandum: “[the] Articles of Impeachment are constitutionally invalid on their face [and] fail to allege any crime or violation of law whatsoever, let alone ‘high Crimes and Misdemeanors,’ as required by the Constitution.”
That truly is all the president’s lawyers need assert in his defense, because it rebuts completely what the House is attempting to do in direct violation of the explicit language in the Constitution itself. The Constitution mandates that the only grounds on which a president may be impeached and removed from office are “Treason, Bribery, or other high Crimes and Misdemeanors” (my emphasis). Neither the First nor the Second Article of Impeachment levelled against Trump constitutes a violation of any state or federal law.
“Abuse of Power” is not a crime, and “Obstruction of Congress” is not a crime. No amount of wordsmithing by the House managers can shoehorn either of these “offenses” into any criminal statute. Notwithstanding former President Clinton’s valiant but unsuccessful effort to escape impeachment in 1998 by arguing, “it all depends on what the meaning of ‘is’ is,” what is written in the Constitution of the United States means what it says. Lawyers may argue about whether a particular crime constitutes a “high” crime (the House decided in 1998 that perjury and obstruction of justice by a sitting president did meet that criteria). But they never should be permitted to prevail in arguing that behavior which is not a crime is a crime in order to rid themselves of a president they do not like.
This is the reason the section of the managers’ memorandum setting out the “Constitutional Grounds for Presidential Impeachment” is so short – a mere three pages of a 111-page document – and draws on such irrelevant documents as George Washington’s 1796 “Farewell Address.”
The managers tip their hand — and reveal the true motive for their drive to convince 67 Senators that the President should be removed from office 10 months before he stands for re-election — in what they call their “Statement of Material Facts.” At page 60 of that portion of their memorandum, the managers argue that President Trump should be removed from office, because Special Counsel Robert Mueller’s investigation of Russian interference in the 2016 election showed that the president tried to obstruct that investigation.
As the rest of the world knows, the Mueller investigation found that the president did not obstruct anything. However, in the never-give-up, make-believe world in which these impeachment managers and their Democrat House colleagues operate, neither facts nor constitutional language mean anything. For the sake of our constitutional Republic, the United States Senate must reaffirm that both facts and the Constitution remain relevant, and acquit President Donald J. Trump.
Bob Barr represented Georgia’s 7th District in the U.S. House of Representatives from 1995 to 2003. He now serves as President of the Law Enforcement Education Foundation based in Atlanta, Georgia.