By Jenna Ellis | Fox News
As the Democrats’ three days of theatrical grandstanding in the Senate impeachment trial finally comes to a close, the president’s legal team will begin their arguments. Here is a preview of what we can expect:
1. A reminder of the Constitution and other law the Senate is bound by
Although an impeachment trial in the Senate is not a traditional court forum, the Constitution still provides due process protections for the president and the law still requires the House managers to meet objective legal standards.
Specifically, the president enjoys the presumption of innocence. This means that it is entirely the House managers’ burden and obligation to prove their case. The president’s legal team could literally say not a single word the entire trial, and if the House fails to charge an impeachable offense (which they have) and fails to provide sufficient proof of a charged impeachable offense (which they have), then the constitutionally required legal outcome is full acquittal.
TRUMP LAWYER JAY SEKULOW: SENATE IMPEACHMENT TRIAL WITNESSES UNLIKELY, BUT ‘WE ARE PREPARED FOR EVERY CONTINGENCY’
In other words, it is not up to the president to present an adequate defense. It is up to the prosecution to prove they have a case that, by an objective legal standard, a reasonable senator could vote for a conviction based solely on the House managers’ case — not a lack of defense from the president. Now, this certainly does not mean the president’s legal team will not present a defense, but the point is that the question is not whose side presented “better” arguments as if this is a contest. The legal standard requires that the burden of proof and burden of production of evidence rests solely with the House managers.
Unlike a traditional court forum that has a variant process, the Senate does not have to admit any further evidence (testimony or documents) not already contained in the record from the House investigation. The idea promoted by the Democrats that a “fair trial” would require witnesses is simply false. If the Senate chooses not to take anything further beyond the record as given from the House, an acquittal would be entirely constitutionally proper.
We can also expect that the president’s team will make further arguments related to the Constitution vesting sole executive power in the President of the United States (not, for example, his subordinates) and vesting sole judicial authority in the courts (not, for example, Congress to decide the merit of its own subpoenas). They will likely also reference other aspects of constitutional law to demonstrate why the claims of “abuse of power” and “obstruction of Congress” are nonsensical, impractical non-crimes.
2. Clear presentation of legal and factual arguments, including a rebuttal of the Democrats’ false narrative
The president’s legal team already filed their 110-page brief, which outlined the four key legal reasons the articles of impeachment fail to meet the constitutional standard for the Senate to even be considered. The Trump team will also presumably argue uncontested facts to demonstrate that the impeachment is baseless.
The two key uncontested facts are: first, Ukraine received more aid under President Trump than his predecessor, including lethal military aid, within the fiscal year it was appropriated for; second, President Zelenskiy had multiple meetings and calls with President Trump without calling for or administering an investigation. The facts plainly show that there was no “abuse of power.”
Moreover, President Trump has no legal or constitutional obligation to comply with subpoenas or a hyper-partisan investigation. “Obstruction of Congress” is a manufactured non-crime, and the House managers admitted they did not seek judicial adjudication of the dispute over executive privilege because it may have taken “months or even years” to resolve. That’s not the president’s problem the Democrats had an impeachment deadline and fundamental fairness and due process simply got in the way of their attempted railroaded timeline.
In addition to presenting those arguments, Trump attorney Jay Sekulow said we can expect the legal team to also rebut the House managers’ claims. Watching the Democrat’s arguments over the past days, it’s clear they have not only presented legally flawed and meritless articles of impeachment, but their entire argument rests on a very different system of government than what we actually have in the United States.
The Democrats attacked our election system, claiming that the removal of President Trump is urgent simply because we can’t trust the voters in the 2020 election. Lead House impeachment manager Rep. Adam Schiff, D-Calif., argued this “cannot be decided at the ballot box, for we cannot be assured that the vote will be fairly won.” This is hyper-partisan interference and voter interference with the integrity of free and fair elections.
The Democrats have also attacked our Constitution and manipulated the power of impeachment. This is clearly their campaign effort for 2020, and instead of participating in free and fair elections, they are weaponizing impeachment and using it for their own political and partisan gain.
We’ll see what else the president’s team presents, but one thing is certain — they are well-prepared and armed with the law and the facts.
Jenna Ellis is a constitutional law attorney and the Senior Legal Adviser to the Trump 2020 campaign. She is an attorney to President Trump and author of “The Legal Basis for a Moral Constitution.”
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