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And Now, Three Days of Attacks From Trump's Lawyers

And Now, Three Days of Attacks From Trump's Lawyers

(Bloomberg Opinion) -- This weekend marks a pivot point in President Donald Trump’s Senate impeachment trial. Until now, the impeachment narrative has been driven overwhelmingly by the president’s critics. It started with the impeachment inquiry in the House of Representatives, culminated in the dramatic and almost purely party-line impeachment vote; and it continued with the skillful presentation of the prosecution’s case by the House managers over three long days in the Senate. But all that focus on Trump’s wrongdoing is now over. Trump’s lawyers will have the floor for three days of their own. And after that, if no witnesses are called, the trial will barrel towards a final vote — one the president is expected to win easily.

The consequences of the pivot to Trump’s defense team will be deeply significant — both for the politics of the next nine months leading to the 2020 presidential election, and for the construction of American history in the future.

In theory, Trump’s lawyers could focus narrowly on providing a formal defense to the two articles of impeachment. No doubt they will do some of that.

But if Trump’s prior rhetoric and the defense’s trial memo are any guide, Trump’s team seems poised to go on the offensive. The team can be expected to attack the entire impeachment process as illegitimate — indeed, as an abuse of power in itself, this time by Congress. Their television arguments will be directed at Trump himself, as well as Fox News and the president’s political base.

Expect Trump’s team to merge legal process arguments with his political goals in 2020. Legally speaking, the team has already revealed that it will claim the whole House inquiry was unlawful because it started before the House enacted a resolution formally authorizing an impeachment inquiry. That’s a very weak argument legally; but it is potentially more powerful politically. It will enable Trump’s team to shift the subject from the president’s wrongdoing to supposed wrongdoing by Congress.

Professor Jonathan Turley testified before the House Judiciary Committee that it would be an abuse of Congressional power to impeach Trump for obstruction for blocking witnesses from testifying. That flawed argument helped open the door to Trump’s favorite political technique, namely accusing Democrats of whatever wrongdoing they have laid on him. The Trump legal team quoted Turley’s statement in its trial memo. Expect to hear it a lot more next week in the Senate.

This will provide a reassuring talking point for Trump’s supporters. When someone says Trump abused his power, the answer will be, “No, Congress abused its power.” The Democrats in the Senate will have to remain silent, just as Republicans have had to remain silent during the House managers’ presentation of their case.

As for the House managers themselves, their role will be almost over if the Senate doesn’t agree to call witnesses. The managers will get the chance to respond to questions put to them in writing by Senators, but that will just be a short session.

Congressional Democrats have labored to produce a historical narrative in the hope that future presidents and future generations will see that Trump’s conduct was fundamentally wrong, and that the constitutional system was not prepared to tolerate it without a response. The Trump legal team can be expected to argue that Trump’s conduct was not impeachable; that it was just business as usual; and that the impeachment process was not the legitimate response of an outraged Congress but rather a partisan distortion of the machinery of government.

Whether future generations accept these arguments will have a huge impact on the ultimate meaning of this impeachment process. Regardless of whether Trump wins in 2020, future generations, with some distance from the events, will be called on to make sense of what happened. If this impeachment is seen as simply the product of a deeply polarized political landscape, that will undercut or even invalidate the Democrats’ claim to have been acting on behalf of the Constitution.

To be sure, that result is far from inevitable. One can only hope that history’s verdict on Donald Trump is very different from the verdict expected in the Senate. Trump’s chance to transform that historical narrative will come when his lawyers stand up in the Senate and start delivering their speeches. And that may well be the last word in the trial, if not in the history books.

To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net

This column does not necessarily reflect the opinion of Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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