Episode II of the impeachment — the defense lawyers
Last week I wrote about some of the basics of impeachment and was planning to continue addressing topics like hearsay and circumstantial evidence. As often happens in all things Trump, however, there has been an avalanche of new developments worthy of priority consideration. One of them is the appointment of his legal defense team.
White House counsel Pat Cipollone and Trump’s personal attorney Jay Sekulow will lead the defense team. They will be assisted by Ken Starr, Alan Dershowitz, Pam Bondi, Robert Ray, Jane Raskin, and Eric Herschmann. The team includes lawyers with ties to former President Bill Clinton’s impeachment and satisfies Trump’s vision of media bull dogs he’s familiar with and his hope the trial will play out as a TV show. As of day one, they already made fools of themselves with the filing of Trump’s response to the Democrats’ initial 146-page impeachment brief and some astounding statements by Dershowitz on national television. I will discuss the major players on the team.
Dershowitz is famous for representing the likes of Claus von Bülow (convicted but later acquitted of trying to kill his wealthy wife), O.J. Simpson (acquitted on two criminal counts of murder for the slashing deaths of his ex-wife, Nicole Brown, and her friend Ron Goldman, but later found responsible for both deaths in a civil trial), Mike Tyson (convicted of rape), Patty Hearst (found guilty of armed robbery and use of a firearm to commit a felony, and participant in numerous acts of terrorism), Harvey Weinstein (recently reached a tentative $25 million settlement agreement with dozens of alleged victims of sexual misconduct), Harry Reems (porn star convicted of obscenity), Jim Bakker (televangelist convicted of eight counts of mail fraud, 15 counts of wire fraud and one count of conspiracy, and found to have made a $279,000 payoff using church funds for the silence of Jessica Hahn, who alleged that Bakker and an associate drugged and raped her), and Jeffrey Epstein (convicted sex offender later charged with one count of sex trafficking of a minor and one count of conspiracy to commit sex trafficking, reputed to have sexually abused dozens of underage girls, who died in jail under suspicious circumstances while awaiting trial).
One might say that Dershowitz has an affinity for men who may have, or did kill, rape, or abuse women, and that one thing that his clients have in common is that they are rich and famous. He also happens to have this in common with Trump and Ken Starr: all three men were friends of Jeffrey Epstein and frequently hanged around him. Perfect for the defense team in the impeachment of Trump. In fact, Trump once called Epstein “terrific” and added that he “likes beautiful women as much as I do, and many of them are on the younger side.”(1 )
For his part, Starr was forced to resign as president of Baylor University in 2016 because the school failed to respond to several reports of sexual assault involving football players over several years. Trump infamously bragged about grabbing women’s “pussies” and getting away with it, has been accused by several of sexual assault, belittles women every chance he gets, and would jail those who have an abortion. I suppose anyone at least suspected of such misogyny and indecency is a good candidate for legal counsel to Trump. He might follow the example of his most famous lawyer, Michael Cohen, who is serving three years in federal prison and was Trump’s conduit to pay hush money to the porn star and Playboy model with whom he had adulterous affairs.
Meanwhile, a 36-year old woman, Virginia Roberts Giuffre, claims she was abused by Epstein at his Florida mansion from 2000 to 2002, when she was 16 to 19 years old. In 2014, she started saying publicly that Dershowitz also assaulted her several times during that period at Epstein’s direction. Dershowitz fired back aggressively, calling Giuffre a “certified, complete, total liar” and saying “I can prove conclusively that she made the whole thing up.” Giuffre then sued Dershowitz for defamation. Dershowitz filed counterclaims for defamation and intentional infliction of emotional distress. Then one of the attorneys for Giuffre, the renowned David Boies, also sued Dershowitz for defamation.(2) If all this were in a TV series, no one would believe it.
But Dershowitz possesses additional qualifications, I suppose, in Trump’s mind. In 2002 Dershowitz wrote an opinion piece for the San Francisco Chronicle recommending that the U.S. government be allowed to torture terrorism suspects after obtaining a court order.(3)
I was watching a segment of Anderson Cooper 360 on Friday the 17th when Dershowitz was sparring with CNN’s legal analyst Jeffrey Toobin, who happens to have taken a class taught by Dershowitz at Harvard Law School. I had seen this odd couple clashing several times already, with Dershowitz acting as the bully that he is and making arguments unworthy even of a celebrity lawyer. As is the case with everyone who is trapped in Trump’s orbit, however, he seems to have lost his mind. Still, when I heard him say that abuse of power is not an impeachable offense I had to push rewind to make sure I had not misunderstood. But no, I didn’t misunderstand. This brought to mind a statement by Noam Chomsky that Dershowitz is “not very bright” and “basically a clown” who “doesn’t have the knowledge or the competence to deal with the issues.”(4)
Start with Hamilton’s Federalist Paper 65. Referring to “a well-constituted court for the trial of impeachments,” Hamilton declared, “The subjects of its jurisdiction are 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 the society itself.” In other words, impeachable offenses can be many different types of acts, covered by the catch-all phrase “other high crimes and misdemeanors” in the Constitution. Notice in this regard that Hamilton mentions misconduct, which is the meaning of “misdemeanors,” as I explained last week. This word doesn’t refer to criminal offenses of a lesser import than felonies. When the Constitution was adopted, there wasn’t even a federal criminal code listing and categorizing different offenses. What the founders had in mind included serious forms of misconduct that harm the body politic. That’s why an impeachment proceeding is “political.” Thus, Hamilton argued, impeachment “can never be tied down by such strict rules, either in the delineation of the offense by” the House, “or in the construction of it” by the Senate.
Also consider Chapter 27 of the House of Representatives’ Practices manual, which deals with impeachments and where we find this explanation: “The phrase ‘high Crimes and Misdemeanors’ has been interpreted broadly. The framers of the Constitution adopted the phrase from the English practice. At the time of the Constitutional Convention, the phrase ‘high crimes and misdemeanors’ had been in use for more than 400 years in impeachment proceedings in the British Parliament. Some of these impeachments charged high treason; others charged high crimes and misdemeanors. The latter included both statutory offenses and nonstatutory offenses. Many of the charges involved abuse of official power or trust.”(5)
In the Clinton impeachment in 1998, the second and fourth articles (which the House rejected), charged him with providing perjurious testimony in a Federal civil deposition and with abuse of power for failing to adequately respond to questions asked by the Committee on the Judiciary during the impeachment inquiry.(6)
In 1974, the House initiated an inquiry into President Nixon’s conduct as a result of charges arising from the 1972 break-in at the Democratic National Headquarters. The Committee on the Judiciary concluded that the president could be impeached not only for violations of federal criminal statutes but also for abuse of the power of his office and for refusal to comply with proper subpoenas of the committee. Therefore, it recommended three articles of impeachment, charging him with abuse of his presidential powers, obstruction of justice, and contempt of Congress.(7)
There are several other examples, including the impeachment in 1933 of federal judge Harold Louderback of California for conspiracy, abuse of power, showing favoritism, and bringing “the court of which he is a judge unto disrepute.”(8) And yet, Mr. Dershowitz brazenly said on national television that abuse of power is not a valid grounds for impeaching a president, and that only bribery or treason or similar offenses qualify. Such blatant disregard for the truth signals that we have entered an era not only of alternative facts, but also alternative law, as Dershowitz’s defense of Trump is described by constitutional scholar Laurence Tribe.(9) Most people who hear someone like Dershowitz have no clue whether he is right or wrong, but they hear a drip-drip of misinformation, misdirection, and mendacity creating a fog of confusion where nothing can be settled. This is the killing of the truth by a thousand cuts.
At this point I should mention Jonathan Turley, a professor at George Washington University and ubiquitous legal pundit for several TV networks. He was the only constitutional scholar called by the Republican minority on the committee on the judiciary of the House of Representatives during its inquiry into the Trump impeachment. Turley testified in the Clinton impeachment as well, claiming that the allegations of perjury, obstruction of justice, and abuse of office were “clear and compelling grounds” for impeachment if the House could prove them.(10) So Trump will be defended by a lawyer in the Senate who contradicts his lawyer in the House on whether abuse of power can be grounds for impeachment. (Turley, another celebrity-seeking lawyer, has also disgraced himself by additional contradictions and absurdities in defense of Trump.)
Back to Trump’s legal team: Ken Starr is an even greater celebrity than Dershowitz. As the independent counsel who led the investigation resulting in former President Bill Clinton’s impeachment, he became a household name in the 1990s. Trump once called Ken Starr a “freak,” a “lunatic,” and a “disaster” who might have “something in his closet.”(11) Another time Trump said “this crazy Ken Starr, who is a total wacko . . . I mean, he is totally off his rocker.”(12) Trump may have made a mistake despite Starr’s connections with Trump and Epstein and the additional qualification of having had to resign as university president because of sexual abuses under his watch. Starr may now have to argue conclusions of law that conflict with what he wrote in the 222-page report detailing his findings on Whitewater and other issues spawned by the Clinton investigation.
As to Robert W. Ray, he once made an emphatic statement about the presidency: “No person is above the law, even the president of the United States.”(13) It will be interesting to see how many contortions Mr. Ray makes to conform his representation of Mr. Trump to that clear statement.
Of course, he said that nearly 20 years ago when he succeeded Ken Starr as the independent counsel investigating President Clinton. I’m sure he’ll find a way to turn into a pretzel like all Republican adulators of the president do every day. Also interesting: Mr. Ray in 2006 turned himself into the police in response to a charge that he was stalking a former girlfriend, but nothing more is known about the case because it was sealed.(14) Who would have an interest in sealing such a case? But whatever, it’s another curious connection to women.
On the subject of women, Pam Biondi has not particularly distinguished herself in her legal career. However, in 2013, she had the opportunity as attorney general of the state of Florida to join a lawsuit that the New York attorney general was filing against Trump University. Many Florida residents had been victimized by this Trump scam and had filed complaints with her office. But four days after announcing that she might join the lawsuit, Bondi’s reelection campaign received a $25,000 check from Trump. On second thought, Bondi decided not to sue Trump.(15) Bring to mind the idea of quid pro quo? Right up the alley of Trump’s disreputable modus operandi. In the end, Trump had to pay a $25,000 fine for the illegal donation, and it came out that Trump’s foundation listed the donation as intended for a charity with a similar name to Bondi’s political organization, a clear indication of unlawful intent.
As to Trump’s personal attorney, Jay Sekulow, I refer the reader to the sections of the Mueller report identifying him and Rudy Giuliani by name and listing numerous ethical violations and criminal obstructions of justice they committed. They appear in the chart that can be found in the following footnote.(16)
Pat Cipollone is the only prominent attorney on the team who seems to be unscathed. Nearly two dozen former classmates of his, however, signed a letter affirming that his posture on impeachment “distorts the law and the Constitution.” These members of the class of 1991 at the University of Chicago Law School wrote, “We are sorry to see how your letter to the congressional leadership flouts the traditions of rigor and intellectual honesty that we learned together.”(17) Both Cipollone and Sekulow may have a conflict in that they are potential witnesses at the trial.
This is the Trump dream team. Or should we say nightmare? Let the second episode of the TV show continue and “we’ll see what happens,” as Trump likes to say.
Amaury Cruz is a writer, lawyer, and political activist from Miami Beach.
6 105-2, H. Rept. 105-830, pp 108, 118, 119, 121.