We noted yesterday #NeverTrumper Max Boot‘s wanting to have it both ways, allowing a wholly political impeachment of President Trump in the House of Representatives, yet demanding that his Senate trial be conducted as in an American court of law. Now Lawrence Tribe has weighed in, and the headline is what caught my attention:

Trump’s lawyers shouldn’t be allowed to use bogus legal arguments on impeachment

By Laurence H. Tribe | January 19, 2020 | 5:19 p.m. EST

The president’s lawyers have made the sweeping assertion that the articles of impeachment against President Trump must be dismissed because they fail to allege that he committed a crime — and are, therefore, as they said in a filing with the Senate, “constitutionally invalid on their face.”

Another of his lawyers, my former Harvard Law School colleague Alan Dershowitz, claiming to represent the Constitution rather than the president as such, makes the backup argument that the articles must be dismissed because neither abuse of power nor obstruction of Congress can count as impeachable offenses.

Both of these arguments are baseless. Senators weighing the articles of impeachment shouldn’t think that they offer an excuse for not performing their constitutional duty.

Reading the article, I wondered if perhaps an editor wrote the article headline, until I came to Mr Tribe’s concluding paragraph:

The president is entitled to robust legal representation. But his lawyers should not be allowed to use bogus legal arguments to mislead the American public or the senators weighing his fate.

“His lawyers should not be allowed to use bogus legal arguments”? As in not allowed to even raise their points?

Attorneys raise legal points that judges disallow all the time; defense attorneys as well as prosecutors will use whatever means they can to win their cases, and it is neither illegal or improper for them to do so. It winds up being up to the judge, or in the case of impeachment, the senators, to determine if a particular legal motion or argument is going to be accepted.

Mr Tribe raises several points in support of his position that the arguments raised by the defense should not be accepted, points I would anticipate that the House’s Impeachment Managers will attempt to refute, but the notion that the defense’s arguments should not be allowed, the word Mr Tribe used, is ridiculous.

Mr Tribe is making the same plea as Mr Boot did: he is perfectly happy with the partisan, political nature of the House’s action on impeachment, but he wants the Senate to act as though they are impartial jurors. He stated very specifically that the House didn’t need to follow statute law in drafting Articles of Impeachment, but thinks that the Senator do need to follow statute law and the legal principles he outlined to take their decisions. Sorry, but that’s not going to fly. The Framers of the Constitution were very aware of political disagreements — consider the compromise which allowed the states that had them to count slaves as 3/5 of a person for the purpose of the enumeration to determine seats in the House of Representatives — but they set impeachment as requiring the votes of a majority of people who had run for political office and were directly elected by the people to serve as the ‘grand jury,’ and 2/3 of the members of the Senate, who were appointed by the various state governments¹ for conviction and removal from office. No impartial citizens these, but politicians with their own agendas, exactly as the Framers specified them to be.

It will require twenty Republicans to go along with a unanimous Democratic vote in the Senate to remove the President from office, but the Democrats in the House couldn’t persuade even one Republican to go along with their partisan impeachment effort. The Senate will acquit the President of all charges, and Messrs Boot and Tribe will wax apoplectic, but anyone with any sense at all knows how this will turn out.
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¹ – Though Senators are directly elected now, prior to the ratification of the 17th Amendment, they were appointed by state legislatures.
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