I have just read the initial Answer of President Donald J. Trump to the array of charges set forth in the House of Representatives Articles of Impeachment. It reads like a school-yard tantrum. It refers to a “brazen and unlawful attempt to overturn the results of the 2016 election and interfere with the 2020 election,” assertions that are interesting if only for their illogical reasoning. I won’t waste time on “brazen” but will note that impeachment by its very nature reverses the electoral result that places any president in office. Surely, the president’s lawyers understand that. What do they really mean? And, it’s a bit ironic, to put the most polite words to it, that they would argue that the impeachment will interfere with the next election, since that is the very offense by Trump for which the impeachment investigation and articles of impeachment were brought. So this opening claim is really just “you’re one too!”

The opening gambit continues with references to the “will of the people,” a matter that Republicans maintain was definitively settled by the 2016 election. Yet, the evidence is clear that, whether or not Trump coordinated on it, the outcome was heavily influenced by a massive Russian disinformation campaign. And there is the small matter of Hillary Clinton having received nearly three million more votes than Trump. While the technical outcome, to borrow a turn of phrase from Alan Dershowitz, of the Electoral College gave the election to Trump, it is more than a stretch to argue that this result reflected the “will of the people.” At best it was the will of the people as distorted by the EC that grants outsized influence to states with smaller populations based on a scheme adopted in 1787 that was a compromise to gain the support of the slave states of the south.

Trump’s lawyers assert that absent a claim of a “crime,” there can be no constitutionally sound impeachment. That argument is simply wrong. Interestingly, Alan Dershowitz who was recently added to Trump’s defense team argued the exact opposite when addressing the question in the Clinton impeachment. https://cnn.it/37gUsJ1 While lawyers are certainly entitled to change their minds in the face of new information, Dershowitz claims that what he said in 1998 is the same as what he says now. That claim is simply preposterous although it is entirely consistent with the continuing positioning of the Republican Party that the truth is whatever they last said it was.

After a lengthy series of changing theories of defense of the president, the defense has at long last come down to the reality that the only “viable” defense is that even if Trump acted as claimed in the articles of impeachment, it doesn’t matter because the president can do whatever he wants. The defense flatly claims that the president did “absolutely nothing wrong.”

We have reached this state because while it permissible to argue defenses in the alternative, in the end the evidence, were it admitted into the Senate record, would establish beyond a reasonable doubt (the standard of proof in criminal cases) that Trump did exactly what was charged in the articles. And the argument that the president of the United States is immune from Congressional oversight, including impeachment, is simply wrong. It flies in the face of the language and historical context of the Constitution’s balance-of-powers scheme.

I am not going to bore you or myself with an excessively detailed dissection of the Trump defense memo. But I will note the remarkable argument that the proof that Trump did nothing wrong is established only by … Trump’s own after-the-fact claims that he did nothing wrong. In effect, the defense is that the president is not guilty because he said so.

The memo also argues that there is no problem here because ultimately the aid to Ukraine was released without Ukraine announcing the investigations Trump wanted. That, I suggest, is an implicit admission that Trump in fact did demand announcements of investigations as a condition for releasing the aid, but eventually caved because his attempt to blackmail Ukraine failed. This is the “no harm, no foul” argument, but it assumes away the central question. The “harm” occurred when the demands were made. Harm does not depend on success of the scheme. The scheme itself was harmful to American foreign policy and security interests and was contrary to American law.

I have also listened all day to the first day of the impeachment proceedings. Several observations are in order. First, the presentations led by Rep. Adam Schiff with participation by Rep. Zoe Lofgren, Rep. Val Demings and Rep. Jason Crow were uniformly brilliant in virtually even way. By contrast, counsel for the president, Jay Sekulow, Pat Cipollone and Patrick Philbin were angry and hostile, attacking Schiff personally and lying to the Senate about the process that had occurred in the House investigation. Schiff, smartly, declined to call them liars and instead said they were simply “mistaken” in their descriptions. I have to say I was surprised at the brazen manner in which these lawyers misrepresented well-known facts in an effort to preserve Trump/Republican talking points.

The Senate process if, of course, blatantly stacked against the Democrats, with the result that all the early motions to have the Senate subpoena documents and witnesses that had been blocked by Trump were defeated by straight party-line votes of 53-47. Nevertheless, the Democrats are making their motions one at a time, with attendant periods of two hours (divided equally between the sides) for argument. I stopped watching when the dinner recess was called at about 7:30. I expect the proceedings to continue deep into the night.

The Democrats, it seems certain, are going to fail to break the Senate Republicans’ unity and thus the outcome of the sham trial appears foreordained. But the evidence, or at least clear outlines of the evidence, are making their way into the record through argument. This process seems certain to further damage Trump’s “credibility,” especially given that most polls indicate a substantial majority of the public prefers that witnesses be called and documents be produced. Neither appears likely to happen.

Tomorrow, as the saying redundantly goes, is another day.