Fittingly, given their client, the approach that President Donald Trump’s legal team has taken to defending him in the Senate’s impeachment trial centers on bravado, dismissiveness and denial.
“Once you sweep away all of the bluster and innuendo, the selective leaks, the closed-door examinations of the Democrats’ hand-picked witnesses, the staged public hearings,” attorney Michael Purpura said Saturday as Trump’s team began its defense, “what we’re left with are six key facts that have not and will not change.”
Those key facts were often carefully tailored, as when White House Counsel Pat Cipollone argued that the rough transcript of Trump’s July 25 call with Ukrainian President Volodymyr Zelensky “shows that the president did not condition either security assistance or a meeting on anything.” Not in the call, explicitly — but Trump’s team had contacted a Zelensky aide immediately before the call, saying that a meeting at the White House depended on one of the politically useful investigations Trump desired.
The fourth of the six key facts was similarly precise in its wording.
“Not a single witness testified that the president himself said that there was any connection between any investigations and security assistance, a presidential meeting, or anything else,” Purpura said.
The most important words in that sentence aren’t the ones about the connection. They are “witness” and “testified.” By including those words, Trump’s team is constraining the scope of what it’s considering to only those dozen and a half people who sat down as part of the impeachment inquiry. In doing so, the defense pulled the same trick it did with the rough transcript, ignoring an obvious counterpoint sitting right outside of the scope it outlined.
On Oct. 17, acting White House chief of staff Mick Mulvaney held a news conference in which he did what no single witness did under oath: connected the investigations to an official act of the White House.
During the call last July, Trump asked for an investigation into a conspiracy theory centered on Russian interference in the 2016 election and the hacking of the Democratic National Committee. Mulvaney defended that request in the terms that Trump had offered when the Ukraine scandal emerged: Trump was worried about corruption and about other countries also paying money to Ukraine.
“Those were the driving factors,” Mulvaney said. Then he added another point: “Did he also mention to me in [passing] the corruption related to the DNC server? Absolutely. No question about that. But that’s it. And that’s why we held up the money” — hundreds of millions of dollars in security and military aid.
Mulvaney was subpoenaed by House investigators but refused to testify. Therefore, he qualifies as “not a single witness” who testified about the connection, which he instead addressed during a news conference.
On Sunday evening, the day after Trump began outlining its case, the New York Times reported on a much more substantial example of where Purpura’s claim was too narrowly tailored. In August of last year, the paper reported, Trump told then-national security adviser John Bolton that he wanted to hold the aid until Zelensky agreed to the investigations Trump wanted to see, according to a manuscript of Bolton’s upcoming book.
Bolton was asked by the House to testify in early November but declined, preferring to see whether courts would rule in the House’s favor in other cases where subpoenas were being argued. (Trump’s assertion that Bolton wasn’t asked is false.) More recently, Bolton has indicated a willingness to offer testimony as part of the Senate trial — an offer that is suddenly much more difficult for Republicans to wave away.
After all, Purpura spent a great deal of time on Saturday making clear this point about the lack of witness testimony. He noted that Ambassador to the European Union Gordon Sondland had asked Trump what he wanted from Ukraine, with Trump volunteering that there was “no quid pro quo” involved. Of course, that conversation came after Trump was aware of a whistleblower complaint raising questions about a quid pro quo and after The Post’s editorial board had drawn a direct link between the aid and the investigations.
More broadly, Purpura noted witness after witness who did not draw such a link. He cited name after name, walking through the collection, as if clearing police lineup after police lineup meant that no crime had taken place.
The emergence of a second potential witness who could be precisely what Trump’s legal team said didn’t exist is hugely problematic for Senate Republicans. Purpura’s phrasing was carefully and cleverly tailored to exclude Mulvaney, but it now introduces the counterpoint: If the important thing is solely that the testimony implicating Trump be from sworn witnesses, how does one argue against having Mulvaney and Bolton be sworn witnesses? Bolton in particular — given that he has already expressed an interest in offering testimony to the Senate.
Trump’s lawyers and the Senate Republicans inclined to support him are in a bind. They have to either ignore the Times report (which Bolton’s team doesn’t dispute) and leave obviously damning evidence on the table — a big problem for purple-state senators who need to argue that no stone was left unturned — or they have to open the floodgates to new testimony and evidence. Trump’s legal team, meanwhile, has to make a choice: continue using careful language to wave away what happened or subtly pivot to making the case that what happened doesn’t merit removing Trump from office.
Or, of course, they could do it the Trump way, pivoting from bad news to a full-throated attack on the political opposition — a tactic that has already broken through to the surface a few times. Trump would certainly endorse that move, even if it were anathema to Senate Majority Leader Mitch McConnell, R-Ky., and the senators he is desperate to see reelected.
The leak of the details from Bolton’s book gave Trump’s legal team all of 20 hours to figure out which path they would choose.