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How 2 top lawyers would make the case for and against Trump in a Senate impeachment trial

The impeachment case against U.S. President Donald Trump continues to make its way closer to the Senate for a trial. Here's how two veteran lawyers would prosecute and defend the president against the charges that he abused the power of his office and obstructed Congress.

The impeachment case continues to make its way closer to the Senate for a political trial

With the House of Representatives poised to impeach him, Donald Trump now faces the prospect of a trial in the Senate, where lawyers from the Democrats and the White House will argue for and against his removal from office. (Mark Wilson/Getty Images)

The charges have been drawn up and following a near-certain vote next week in the House, the U.S. Senate will be poised to put Donald Trump on trial with his presidency at stake.

On Thursday, the House judiciary committee held a marathon session debating the two articles of impeachment against Trump, with a vote by the panel expected Friday morning. The articles accuse the president of abusing the power of his office for personal political gain and obstructing Congress.

The Democrats argue Trump clearly tried to pressure Ukrainian President Volodymyr Zelensky to investigate his political rival, former vice-president Joe Biden, and his son, Hunter, by withholding nearly $400 million in military aid and an invitation for a face-to-face meeting.

The articles are expected to be voted on by the full House of Representatives next week, where they will likely pass given the Democratic majority. That would mean Trump is then formally impeached, becoming just the third president in history to earn that dubious distinction.

The next step comes early next year when the Senate would hold a trial to decide if Trump should remain in office. The Senate floor would become a courtroom, with senators acting as jurors and U.S. Supreme Court Chief Justice John Roberts presiding.

There are 53 Republicans, 45 Democrats and two Independents who side with the Democrats. A two-thirds majority is needed to convict, though only a simple majority of 51 could pass a motion to dismiss.

U.S. Senate majority leader Mitch McConnell says no decision has been made about what kind of trial the Senate will have if the House votes, as expected, to impeach the president. (Tom Brenner/Reuters)
 

Reports say there is still debate about how a trial would unfold, but Republican Senate majority leader Mitch McConnell made it clear this week, whether the trial is short or drawn out, lawyers for the Democrats and the White House would get a chance to argue their case. 

So what would those arguments sound like? To get an idea, CBC News enlisted two seasoned litigators, one to assume the role of prosecutor and the other to defend Trump against allegations he has committed high crimes and misdemeanours and should be removed from office.

Both point out that an impeachment trial is a political proceeding, so the bar for conviction is different than in a criminal courtroom and the jury is far from impartial. With 20 Republicans needing to cross party lines to convict Trump, they also recognize the prosecution has the more difficult task.

Opening statements

For the prosecution, Roland Riopelle wouldn't mince words in his opening statement: "This man is a one-man crime wave."

The articles of impeachment make no direct mention of it, but the former criminal prosecutor for the U.S. Attorney's Office in the Southern District of New York would bundle not just the Ukraine-related allegations, but also Trump's behaviour catalogued by special counsel Robert Mueller in his investigation into Russian meddling in the 2016 presidential election and allegations of campaign finance violations involving payoffs to adult film actress Stephanie Clifford, known as Stormy Daniels.

Riopelle said this is like a Mafia case where wrongdoing all traces back to the person at the top. He said he would be confident of a conviction if he was handed this file in a regular court setting.

Democrats say Trump, right, abused his power in a July 25 phone call when he asked Ukrainian President Volodymyr Zelensky, centre, for a favour in investigating Democratic presidential candidate Joe Biden. (Bastiann Slabbers, Ludovic Marin, Yuri Gripas/Reuters)

Robert Ray is equally confident of his case against removing the president from office. Ray is a former independent counsel who took over the investigation of President Bill Clinton in 1999.

His opening statement would be emphatic: "This is the first presidential impeachment in history that proceeds forward on articles of impeachment that do not allege a crime." 

Ray would hammer on that point, noting as constitutional law professor Josh Blackman does, that the articles of impeachment avoid concise charges, instead "going for misconduct that exists largely in the eye of the beholder," as Blackman wrote.

Ray doesn't buy the Democratic characterization that Trump's request for an investigation from Ukraine equates to interfering in the 2020 election. He also doesn't think it rises to the level of "high crime and misdemeanour," a view not shared by three of the constitutional experts who testified before the judiciary committee. 

"I just think it is awkward [for Democrats] to be claiming that the president is not above the law and then to not be alleging a violation of law in the articles of impeachment. That strikes me as, at a minimum, odd and weak."

Democratic Rep. Sheila Jackson Lee of Texas speaks as the House judiciary committee debates the language of the two articles of impeachment against Trump. The articles charge the president with abuse of office and obstruction of Congress. (Matt McClain/Pool via Reuters)

As such, Ray wouldn't hesitate to move a motion for dismissal early on. 

"They are not well-founded articles of impeachment. Historical practice suggests that well-founded articles of impeachment allege both that a crime has been committed and that that crime is in the special category of offences that constitute also an abuse of power." 

Arguing the case

Riopelle would certainly object. He'd counter by leaning on the witness testimony that emerged from the House intelligence committee, particularly that of Gordon Sondland, the U.S. ambassador to the European Union, a Trump supporter who had direct conversations with the president.

Sondland provided the most direct evidence of Trump's intent. He testified he worked closely with Trump's personal lawyer, Rudy Giuliani, at the president's direction and pushed a political investigation on Ukraine because it's what Trump wanted. 

"Was there a quid pro quo? As I testified previously, with regard to the requested White House call and the White House meeting, the answer is yes," Sondland told the committee on Nov. 20.

WATCH| Sondland says Ukraine pressure campaign wasn't a secret.

In his testimony at the impeachment inquiry, EU Ambassador outlines the many senior officials who were in the 'quid pro quo' loop. 2:07

Riopelle would emphasize that Sondland's admission came begrudgingly, and the ambassador only started being more open after other witness testimony strongly suggested he hadn't told the whole truth in his previous testimony. 

"[Sondland] tried to hide the ball for Mr. Trump as long as he possibly could. He's not a happy witness. He would like to continue to be Trump's toady," Riopelle argued, referring to how Sondland made a hefty contribution to Trump's inaugural committee before being appointed ambassador in 2018. 

"But when confronted with the very real possibility of a perjury indictment, he decided to get religion and told the truth."

While the defence may counter that Sondland's testimony is hearsay, Riopelle said he would go right to the second article of impeachment: the president's obstruction of Congress.

He'd be prepared with the list of names of White House officials who didn't co-operate under orders from the president. Among them are White House chief of staff Mick Mulvaney, his senior adviser Robert Blair, National Security Council lawyer John Eisenberg and others.

"Mr. Trump is terrified of the actual facts about this coming out and that's why he's been so obstructive. The case is clear. And his only hope is to obstruct and obscure what's out there and that's what he's done."

WATCH| How the impeachment process works.

Impeachment is the political process of removing from office certain elected or public officials accused of wrongdoing. The process is more difficult than you might think. 2:01

On that point, Ray would surely rise with an objection: how can the president obstruct Congress if the matter of whether those officials should testify is still before the courts?

Ray would also argue that the president's request to Zelensky that Ukraine investigate the Bidens doesn't rise to the level of interference in an election, as alleged in the first impeachment article, because Trump only made a request, never an outright demand or threat. 

Closing arguments

In what would probably be his closing argument to the jury, Ray would make it clear that every president has used the office for personal gain and that Democrats haven't made a strong enough case that the president's request for an investigation constitutes bribery or extortion, instead choosing the more vague "abuse of office" charge. 

"We have jettisoned treason. We have jettisoned bribery. We have jettisoned extortion. We've jettisoned an illegal foreign campaign contribution, all in favour of abuse of office as the basis for impeachment," Ray said in a phone interview, pounding his desk as he made his point.

"That is not proven, not sufficient, not sustainable in order to remove a president from office."

For Riopelle's closing argument, he would pay tribute to the constitution, praising the founding fathers of American democracy for creating a document that, more than 230 years later, stands the test of time — almost. 

Riopelle says the only flaw in the impeachment process is that the framers of the constitution never envisioned a political situation where someone like Trump would control a party so thoroughly. 

"The founders didn't envision that a demagogue like Mr. Trump could take such total control of a political party, that it would lie supine as he did the things that he's very clearly done.

"It just was inconceivable, I think, to the founders that responsible Republicans would not vote to convict in a situation like this. But here we are."

About the Author

Steven D'Souza

CBC News New York

Steven D'Souza is a Gemini-nominated journalist based in New York City. He has reported internationally from the papal conclave in Rome and the World Cup in Brazil, and he spent eight years in Toronto covering stories like the G20 protests and the Rob Ford crack video scandal.

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