The President announced his “dream team” to defend him in the Senate. Their job is to convince Senators that the President did not commit a crime. If that doesn’t work, then whatever crime he did commit, it doesn’t fit the Constitutional definition of “treason, bribery, or high crimes and misdemeanors”. And if all that fails, then the team will try to show that the process was so flawed, that even a President who abused his power should not be removed.
Judge Starr
It’s “have it my way” anyway you look at it. Two stellar attorneys lead the “team”. First is Ken Starr, the man who left the bench to serve as Solicitor General under President Bush (41). He then became Justice Department Special Counsel, and began the investigations of Bill and Hillary Clinton soon after they entered the White House. Starr trundled through their financial, social, and finally personal lives, and after four years, finally hit pay dirt. Big Bill had a sexual relationship with “that woman” Monica Lewinsky, a twenty-one year old .
It’s About Sex
It was a national scandal, and Clinton compounded it by testifying in a court-ordered deposition. He tried to split legal hairs about the nature of oral sex. It didn’t work, and a Court found he committed perjury. And for that, Starr convinced Congress to impeach him. The Senate never came close to removing him from office.
Starr’s career continued to representation of billionaire Jeffrey Epstein in his 2006 sex scandal with underage girls in Florida. Starr helped Epstein get a “sweetheart deal” with South Florida US Attorney Alexander Acosta. Afterwards, Acosta became Secretary of Labor under the Trump Administration, but resigned when the Epstein scandal broke out once again less than a year ago. Epstein, of course, was re-arrested and imprisoned awaiting trial, where he died under questionable circumstances.
After a stop as Dean of Pepperdine Law School, Starr landed in Waco, Texas, for a six-year stint as President of Baylor University. Sexual abuse came back to haunt him once again. Members of the football team and a fraternity president were convicted of multiple sexual assaults. The coach and athletic department tried to coverup the crimes. In the end Starr lost his job, along with the coach and athletic director.
So now he’s got plenty of time to represent the President.
Professor Dershowitz
Then there’s the redoubtable professor of Constitutional law from Harvard, Alan Dershowitz. The Professor has spent a career defending the infamous: from Claus von Bulow’s murder case to the OJ Simpson “dream team”. He is currently involved in defending movie producer Harvey Weinstein in his sexual abuse trial. Dershowitz claims to be a life-long liberal Democrat, and says he voted for Hillary Clinton. He also has been a die-hard supporter of Zionism and Israel, which might explain some of his ongoing defense of Donald Trump.
Dershowitz was also on the 2006 Epstein team, and has been implicated in some of Epstein’s sexual improprieties. Dershowitz claims his only sex was with his wife. His statement, that he was never was “out of his underwear,” is contested by multiple girls who claim that he was involved in “massage” activities and more.
Besides the Epstein connection, the Trump legal team has one other strong bond: commentating for Fox News. Starr, Dershowitz, Trump personal attorney Jay Sekulow, former Florida Attorney General Pam Biondi, and Starr’s successor as Special Counsel Robert Ray are all part of the team, and all passed the apparent “try-outs” in their Fox News appearances.
So what arguments can we anticipate from the Trump “Epstein/Fox News” Team?
Unitary Executive
From the beginning of the Trump Administration, Professor Dershowitz has taken a consistent view. He advocates the Constitutional theory of the “unitary executive”, an argument that states that all actions of the executive are direct outgrowths of Presidential power. The Professor argues that the President wouldn’t “investigate himself” and therefore the Justice Department has no jurisdiction over Presidential actions.
Dershowitz saw the Mueller investigation as unconstitutional, and that the President had the authority to fire Mueller at any time for any reason. His argument that “the President cannot obstruct himself” gives Mr. Trump total leeway to prevent any investigation of his administration’s actions.
In addition, Professor Dershowitz reads the US Constitution as giving the President near absolute powers in the area of foreign policy, thus making many of the accused actions in the Ukraine affair perhaps scandalous, but not illegal. And finally, Dershowitz reads the impeachment powers in the Constitution as extremely limited to the strict reading of the words, “treason, bribery, and high crimes and misdemeanors”. Since the President hasn’t been indicted or convicted of any Federal crimes, he cannot be impeached.
Federal Indictment
Judge Starr is likely to make his argument based on his work as Special Counsel. He will claim that the House of Representatives exceeded their authority be opening the investigation of the President, a job he sees defined as a job for the Justice Department. He will argue that the U-Haul truck load of evidence he passed to Congress in 1998 was that kind of investigation, and that the four month House Intelligence Committee inquiry is unacceptable.
So Starr will argue that unless the President is facing Federal Criminal charges, he cannot be impeached. And Dershowitz will argue that the Justice Department cannot investigate or charge the President. The sum of their position: “heads I win, tails you lose”.
Back to Law School
Others will argue that the House “process” denied the President due process rights. And somewhere, someone, probably Jay Sekulow, will recite the famous Jim Jordan litany. It has four stanzas:
- The phone call between Trump and Zelenskiy was “perfect”
- Zelenskiy has stated there was no pressure
- There was on “quid pro quo” since Ukrainians didn’t know the money was held up
- The money was eventually paid anyway.
It’s already been used in the “teams” official response to the Impeachment notice.
Another famous Harvard Constitutional Professor, Lawrence Tribe, describes the Dershowitz position as “alternate law” (as opposed to “alternate facts”). Adam Schiff is likely to make the same case on the floor of the Senate.
It probably won’t make for great television for most Americans. Not too many folks are fascinated with explanations and legal interpretations of the US Constitution. But as someone who enjoyed sitting in law school classes (no, I didn’t get my degree) I am clearing my schedule.
This week, I’m going back to school!
