Trump’s Impeachment Brief Is a Howl of Rage

Were Trump trying to make a traditional legal argument, he’d have picked the wrong legal counsel. But that’s not what the president is trying to do. CNN describes the president’s merry band as a “Fox News defense team,” noting that the main through line among the lawyers representing Trump is that they have all regularly appeared on the president’s favorite network. It’s not that the president’s legal team lacks talent. Starr was, after all, an esteemed appellate lawyer, a judge on the D.C. circuit, and the solicitor general of the United States. And Dershowitz was a Harvard law professor. But the president isn’t fundamentally making a legal case here. His arguments are that his phone call was “perfect,” that there’s a “deep state” conspiracy against him, and that impeachment is an effort to overturn an election. You don’t need good lawyers to make such silly arguments. You need lawyers who will yell untruths loudly, lawyers whose very presence will argue the us-against-them nature of the president’s defense.

And this is a group of people who do just that. Just by being there, they will make the president feel good, feel validated. Their presence will give expression to his anger, in the same way that Brett Kavanaugh’s tirade against the Senate Judiciary Committee reportedly delighted Trump.

For this reason, the contradiction of choosing Starr to argue in favor of a hyperaggressive vision of executive privilege and against conviction on the basis of obstruction of justice isn’t a problem, just as Dershowitz’s lazy argumentation and Cipollone’s hyperventilating outrage aren’t problems either. They’re the whole point. Flaunting the dissonance of having Starr defending a president in an impeachment trial is itself an expression of rage and defiance against the president’s critics—including, one must imagine, Hillary Clinton, whom both Starr and Ray investigated. It’s a legal team designed to own the libs, and the fact that Dershowitz has been accused of perpetrating misconduct against women (allegations he denies), and Starr of mishandling an investigation into such allegations, is perhaps no coincidence.

To the extent that there is an argument in the president’s defense, it’s that the president’s rage is more important than building a systematic legal case. Putting together a legal brief, after all, depends on a system of mutual understanding between the writer and the audience. The goal is to convince a neutral arbiter of the correctness of one’s point, within a structure of traditions and constraints. Trump’s howl of anger is a declaration that he doesn’t need to convince any arbiter, abide by any constraints, or reach any understanding, because his own emotions are the most important thing.

But the flip side of Trump’s insistence on his own preeminence is his grasping need for other people to reaffirm him. And so the president’s defense, the argument and the team alike, has another purpose: It’s a message to Republican senators. It says to each of them that no, the White House will not make a factual argument on the merits of the case—not a real one, anyway. And no, it will not make a real legal argument either. It, rather, will announce that, per George Orwell, two plus two equals five. And it will demand of the senators that they get in line to endorse that proposition, preferably on television, where the president can see. It will be a failure of loyalty if they are not willing to do this. And they will be subject to retaliation.

It’s not a strategy that would work in court. But the Senate is not, at the end of the day, a court—even when it’s sitting as the trial court of an impeachment. The Senate is a body composed of people who, as the past few years of Republicans’ willing subjection to Trump have shown, are exquisitely sensitive to this sort of pressure.

And the more absurdly bombastic the defense gets, the stronger this message becomes.

Quinta Jurecic is a contributing writer at The Atlantic and managing editor of Lawfare.

Benjamin Wittes is a contributing writer at The Atlantic, the editor in chief of Lawfare and a senior fellow at the Brookings Institution.