President Trump has filed his answer to the articles of impeachment against him. In legal parlance, an “answer” is a document filed at the beginning of a proceeding, typically a civil case, in which the defending side gives its response to factual allegations and lists the basic grounds for its defense.
Trump’s answer did neither, not in any serious way. His arguments are wrong on the facts and wrong on the law, but that’s not the worst part. At its core, his submission represents an attack on the impeachment process — and on the Constitution itself.
The answer doesn’t bother to present any coherent factual response to the impeachment charges. Instead, it declares that Trump “categorically and unequivocally denies each and every allegation.” Is Trump denying, say, that he demanded that Ukraine announce it was investigating the Bidens? Or that he ordered documents to be withheld and witnesses not to testify before Congress? The evidence to the contrary is overwhelming.
Beyond that, on the facts, Trump’s answer presents only a few bare conclusions, pointless irrelevances — and outright misstatements. It tells us, once again, that Trump’s July 25, 2019, call with President Volodymyr Zelensky of Ukraine was “perfectly legal” and “completely appropriate.” Trump “raised the important issue of Ukrainian corruption,” the answer asserts. Read the transcript, as the president might say. He did not.
Should witnesses testify at Trump's impeachment trial? Lawmakers can't seem to agree
Republicans and Democrats on Jan. 19 argued about the best way to achieve a “fair” impeachment trial for President Trump in the Senate. (Meg Kelly/The Washington Post)
The answer claims Ambassador to the European Union Gordon Sondland and Sen. Ron Johnson (R-Wis.) “actually exonerate” Trump. Why? Because they say Trump said — after the whistleblower complaint was made — that he would never demand a quid pro quo. But that’s not proof, just Trump justifying himself. “The security assistance was sent, all without the Ukrainian government announcing any investigations,” the document goes on to say. Yes — two days after the House announced it was investigating the Ukraine matter.
As for the law, the answer claims, in the most cursory fashion, that “the first Article” — alleging abuse of power — “fails on its face to state an impeachable offense.” In particular, the answer asserts the abuse of power article “alleges no crimes at all, let alone ‘high Crimes and Misdemeanors,’ as required by the Constitution.”
That argument ignores that no statutory crime is required by the Constitution for impeachment and that abuse of power is in fact the essence of impeachability: The English parliamentary history upon which the Framers adopted impeachment makes clear that a public official’s breach of duty to put the public interest first constitutes an impeachable, removable offense.
Even if a statutory crime were required, the House’s charge that Trump tried to solicit a personal benefit (Ukraine’s announcement of an investigation) in exchange for an official act (releasing the security aid) constitutes bribery, both as understood in the Framers’ time and under the federal criminal code today.
What the answer really tries to do, however, above all else, is to attack the very legitimacy of this impeachment — and of impeachment generally. Echoing White House counsel Pat Cipollone’s Oct. 8, 2019, letter to House leaders, Trump’s answer complains that the House proceedings were a “one-sided process” that was “lawless” and “violated basic due process” and “every principle of fairness.”
Even if that were true, it wouldn’t matter. The Constitution makes the House the charging body in the impeachment process, like a grand jury. By vesting in the House the “sole Power of Impeachment,” the founding document makes it wholly the House’s business how to decide whether to impeach a president.
But it isn’t true that the process was fundamentally unfair: Members of the Republican minority, hardly afraid of carrying water for Trump, had full opportunity to, and did, cross-examine witnesses and make whatever arguments they deemed worthwhile to make. And if there was any exculpatory evidence to be heard, the White House could have offered it. Instead, Trump did everything he could to block evidence from coming in.
Even beyond that, by the plain terms of the Constitution, the House isn’t the place to hear and weigh all the evidence. Because the Constitution provides that it’s the Senatethat’s vested with “the sole Power to try all Impeachments.” Weighing all the evidence is what a trial is for — in the Senate.
Worse yet, though, is the answer’s rhetorical attack on the Constitution’s ultimate method of ensuring that presidents comply with the law. Trump’s impeachment is “a dangerous attack on the right of the American people to freely choose their president.” It’s “a brazen and unlawful attempt to overturn the results of the 2016 election and interfere with the 2020 election.” Removal would mean “nullifying an election and subverting the will of the American people.”
That’s as close as you can get to saying without saying that, because Trump was elected or stands for election again, he can’t be impeached or removed no matter what he did. But the same could be said for any president. If taken to its logical conclusion, Trump’s rhetoric about nullification and subversion of the people’s will would mean no president could ever be held to account by impeachment — and every president, in effect, is above the law.