Law professor details 4 glaring ‘deficiencies’ with Trump lawyers’ impeachment trial brief: 'We've seen this before with the tantrums'

Law professor details 4 glaring ‘deficiencies’ with Trump lawyers’ impeachment trial brief: 'We've seen this before with the tantrums'
Trump Image via NBC News.

On Monday, January 20, attorneys representing President Donald Trump during his impeachment trial submitted a legal brief voicing their reasons for objecting to the trial. The 109-page brief has been drawing a great deal of criticism from Trump’s opponents, who argue that the attorneys’ reasoning is badly flawed in multiple ways. And law professor Michael J. Gerhardt, analyzing the brief in an article published by Just Security on January 21, cites four fundamental “deficiencies that make it more of a political screed than a legal document deserving of respect and serious consideration by senators, the public, historians and constitutional scholars.”

Deficiency #1, according to Gerhardt, is the “table pounding” tone of the memo — which the law professor criticizes for being “replete with bluster” and using over-the-top rhetoric like “an affront to the Constitution” and “a political tool to overturn the result of the 2016 presidential election.”

“— I am being precise and literal with that choice of words — thrown by Republican members of the House Intelligence and Judiciary Committees,” observes Gerhardt, who teaches at the University of North Carolina. “The only thing this kind of rhetoric seemingly achieves is energizing the president’s base.”

Deficiency #2, Gerhardt asserts, is the fact that the brief is “replete with misrepresentations and false statements of fact.”

The brief, Gerhardt notes, “reiterates the canard that the whistleblower’s report is a ‘false account.’ There was nothing false about it. It was corroborated by virtually every witness who testified before the House Intelligence Committee…. It does not just strain credulity but decimates it to maintain that everyone who has testified under oath in these hearings is somehow lying, while only the president is telling the truth.”

Deficiency #3, Gerhardt writes, is the brief’s “misrepresentations and false claims about the law and about impeachment practices and procedures.”

Gerhardt explains, “The memorandum repeatedly complains that the House did not afford the president ‘due process.’ Throughout the House’s impeachment proceedings, Republicans proclaimed ‘due process’ was a problem. Yet, the very same Republicans who made this complaint were invited to or participated in the closed-door depositions the president is now complaining about. What’s more, ‘due process’ does not apply to these proceedings, since ‘due process’ applies to the government when it is depriving someone of ‘life, liberty, or property.’”

Deficiency #4, according to Gerhardt, is that the Trump attorneys who wrote the brief “should be brought up on ethics charges in any of the bars in which they are licensed to practice law.”

“Rule 3.3 of the Code of Professional Responsibility requires lawyers to be truthful and candid in the arguments they make before tribunals,” Gerhardt notes. “The rule counts legislative proceedings as tribunals. Yet, the president’s lawyers take liberties with the law and the facts throughout — for example, maintaining the president’s support for Ukraine is ‘beyond reproach.’”


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