President Trump’s Impeachment Legal Team Taking Shape

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Andrew Donaldson

Born and raised in West Virginia, Andrew has since lived and traveled around the world several times over. Though frequently writing about politics out of a sense of duty and love of country, most of the time he would prefer discussions on history, culture, occasionally nerding on aviation, and his amateur foodie tendencies. He can usually be found misspelling/misusing words on Twitter @four4thefire and his writing website Yonderandhome.com

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  1. Avatar greginak
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    says:

    One way of looking at his team is it includes one guy associated with Epstein who has been accused of some of those same kind of icky things and a guy who lost his job at Baylor for failing to investigate a sex abuse scandal on the football team.Report

    • Avatar Jaybird in reply to greginak
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      says:

      Who is this “Epstein” fellow? Maybe there is an opportunity for a hungry young journalist to do a story about who he was and who his associates were and what they’re likely guilty of…

      (Personally, I’d assume that any journalist who is *NOT* pushing for that is on team “Acquit Trump”.)Report

      • Avatar greginak in reply to Jaybird
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        says:

        Wow you missed all those journalists who have done stories on him and the ones who took him down. Odd. I wonder if anybody will yell out Epstein didn’t kill himself when Dersh is doing his abuse of power isnt’ impeachable shite.

        And then there is Starr and his Baylor ignominy. It’s almost like that means nothing.Report

        • Avatar Jaybird in reply to greginak
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          says:

          I guess there just isn’t anything there. Like they’re nothingburgers.Report

        • Avatar Stillwater in reply to greginak
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          says:

          all those journalists who have done stories on him and the ones who took him down.

          Just one journalist, really. Julie K Brown.Report

          • Avatar greginak in reply to Stillwater
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            says:

            I thought it was a team of two or three people? Whatever. I pointed out a few weeks ago that it was actual journalists who “got” epstein or at least got the spot light on him which renewed the interest of the cops. I stated this in response to a comment that journo’s hadn’t investigated him. There was of course a lot of press who ignored him or hushed up stories. Since his story broke there have been plenty of stories about him. All of this seems accurate as far as i can tell.

            To be clear about any point i may actually have, it’s that conspiracy oriented folks chase secrets and hints and believe any damn thing fueled by their own biases. Sex abuse, certainly when abetted or ignored by institutions, is a major problem. If we are to actually lessen it we need not spend all our attention on the conspiracy and ignore all the people right in front of our faces. Should there be consequences for Starr for his role in failing to investigate sex abuse? What about Dersh? Well Dersh was lawyering so i say no to any consequences for that. But was he involved as a person? Is he caught up do to any personal/ non professional behavior? Where are the “Ep didn’t kill himself folks”?Report

            • Avatar CJColucci in reply to greginak
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              says:

              We now know a lot about how awful Epstein was and who his enablers were and we now know he wasn’t murdered. How do we know that? Either proximately or ultimately through the efforts of several people, from different news organizations, in the MSM. Is there more stuff we’d like to know? Sure. There’s always more. Probably someone is looking into it, but for obvious reasons it isn’t a front-burner story anymore. But we’ll probably have some long-form piece putting together everything we now know and what gets found out before the year is out. Will that satisfy everyone? Of course not.Report

  2. Avatar George Turner
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    says:

    Alan Dershowitz on the GAO conclusion

    The Constitution allocates to the president sole authority over foreign policy (short of declaring war or signing a treaty). It does not permit Congress to substitute its foreign policy preferences for those of the president.

    To the extent that the statute at issue constrains the power of the president to conduct foreign policy, it is unconstitutional.

    Even if the GAO were correct in its legal conclusion — which it is not — the alleged violation would be neither a crime nor an impeachable offense. It would be a civil violation subject to a civil remedy, as were the numerous violations alleged by the GAO with regard to other presidents.

    If Congress and its GAO truly believe that President Trump violated the law, let them go to court and seek the civil remedy provided by the law.

    I can see why he’s on the defense team.Report

    • Avatar DavidTC in reply to George Turner
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      says:

      Would anyone care to quote where the US constitution gives the president ‘ sole authority over foreign policy’? George Turner? Alan Deshowitz? Either of you have the cite there? Alan Deshowitz seems to think that just showing a picture of the Constitution proves that what he says is in it is actually in it.

      There’s literally nothing in the constitution that says the president has ‘sole’ power to conduct foreign policy.

      In fact, Congress has several explicit powers over parts of foreign policy. For example, they are given the right to ‘To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;’ and ‘Power To lay and collect Taxes, Duties, Imposts and Excises, ‘

      There’s literally no possible way to read the Constitution and assert the President has the sole authority over foreign policy.

      Now, he’s actually wronger than that…there’s not actually any hint the president has any authority over foreign policy besides signing treaties and appointing diplomats, both of which actually require the Senate, so even that power isn’t just his.

      The only sole control he hypothetically could have is over the US military. Which…isn’t actually true, the courts have held that Congress can stop it from doing things

      But that isn’t the issue here. The allegation is not that he moved troops in violation of the law, which hypothetically could be a constitutional power of the president (Although, to be clear, it isn’t.), it’s that he directed a civilian agency from doing something that agency was required to do by law. The DoD may be involved, but it’s the OMB that is alleged to have violated the law.Report

      • Avatar Aaron David in reply to DavidTC
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        says:

        Would anyone care to quote where the US constitution gives the president ‘ sole authority over foreign policy’?

        The president’s authority in foreign affairs, as in all areas, is rooted in Article II of the Constitution. The charter grants the officeholder the powers to make treaties and appoint ambassadors with the advice and consent of the Senate (Treaties require approval of two-thirds of senators present. Appointments require consent of a simple majority.)

        Presidents also rely on other clauses to support their foreign policy actions, particularly those that bestow “executive power” and the role of “commander in chief of the army and navy” on the office. From this language springs a wide array of associated or “implied” powers. For instance, from the explicit power to appoint and receive ambassadors flows the implicit authority to recognize foreign governments and conduct diplomacy with other countries generally. From the commander-in-chief clause flow powers to use military force and collect foreign intelligence.

        Presidents also draw on statutory authorities. Congress has passed legislation giving the executive additional authority to act on specific foreign policy issues. For instance, the International Emergency Economic Powers Act (1977) authorizes the president to impose economic sanctions on foreign entities.

        Presidents also cite case law to support their claims of authority. In particular, two U.S. Supreme Court decisions—United States. v. Curtiss-Wright Export Corporation (1936) and Youngstown Sheet & Tube Company v. Sawyer (1952)—are touchstones.

        https://www.cfr.org/backgrounder/us-foreign-policy-powers-congress-and-president

        This has been hashed out over a few hundred years.Report

        • Avatar Michael Cain in reply to Aaron David
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          says:

          In more ordinary times, I would question the wisdom of making the argument to the Senate that there are areas of policy and national conduct from which Congress is entirely and forever excluded.Report

        • Avatar DavidTC in reply to Aaron David
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          says:

          Are you disagreeing with me? I ask honestly here, I really can’t tell.

          Presidents also cite case law to support their claims of authority. In particular, two U.S. Supreme Court decisions—United States. v. Curtiss-Wright Export Corporation (1936) and Youngstown Sheet & Tube Company v. Sawyer (1952)—are touchstones.

          Oh, I’m sure that a lot of people on the right are very excited about United States. v. Curtiss-Wright Export Corporation, but that doesn’t say what people think it says. It says in the absence of any sort of legislation, especially in a war, the President can do pretty much all foreign policy he wants.

          That doesn’t mean a thing when there’s actual legislation controlling.

          And, honestly…this is all a bit moot. See, the claim here by the GAO isn’t about do foreign policy. He did threaten a country, which was…I will grant is an inherent power of his…it’s an abuse of that power, but it is a power.

          But that’s not what the GAO is talking about.

          Trump ordered the OMB to not release funds to the DoD. That’s _not_ foreign policy, that’s _internal government_ money movement.

          A case could be made that he could have ordered the DoD not to distribute funds to Ukraine, that would have been foreign policy. He did actually successfully order the State Department not to do that, or rather to not ask for the funds in the first place. Maybe that was legal. If he could have gotten the DoD on board with this, and they merely didn’t ask for the funds, perhaps all that could fall under the foreign policy purview.

          But the DoD did ask for the money. (Probably because they were required to by law.) So he then asked another part of the government, a part that has nothing to do with foreign policy at all and in fact isn’t allowed to do things for policy reason, to do something explicitly illegal, and unrelated to foreign policy.

          Why didn’t he just order the DoD not to distribute the funds? Because the DoD would have said ‘Huh? The law says…’ and he would have had to order them to break the law. And perhaps he has the right to do that! Perhaps he can override what Congress did, and he could have won in court.

          But he didn’t do that, because he was keeping this shit secret, and hiding what he was doing. Because, again, it was part of a crime.

          Trump is like a store manager that walked out the back door with merchandise, and he’s trying to argue it was legal because he has the right to set any prices he wants. First, it’s not clear he does have that right, but more importantly…no. He maybe has the right to set prices, but he has to do it _using the system_ and _going through the checkout_.

          But…obviously, that would make what he’s doing visible, which would get him in trouble.Report

          • Avatar DavidTC in reply to DavidTC
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            says:

            But…obviously, that would make what he’s doing visible, which would get him in trouble.

            In fact, this is literally the most important thing.

            Other presidents have asserted broad powers and ignored laws. Obama was ordered to reissue passports asserting Jerusalem was in Israel, and said no. Lots of presidents have asserted a right to do things. Sometimes Congress folds, sometimes it sues. Sometimes the president wins, sometimes they lose.

            But Trump did not assert the right to withhold Ukraine aid. In fact, not only did he sign the bill giving them that aid, but he repeatedly claimed it was on the way and there were some weird technical glitches going on!

            He cannot now be allowed to argue he had some sort inherent authority to do a different foreign policy. Maybe he did…but he didn’t do that. He didn’t take it before the public, he didn’t take it before the court, he didn’t take it before Congress.

            The president cannot be allowed to secretly violate the law, even if he has the Constitutional right to do that. Without knowledge of what is going on, there are literally no checks on his behavior.Report

            • Avatar George Turner in reply to DavidTC
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              says:

              Before Obama was sued over the passport issue, he was secretly violating the law with asserting his right to do so. Likewise, Trump had no need to assert his right or take it before the public because nobody had questioned his actions.

              That’s like saying that your failure to make your legal case before you’ve even been arrested and charged proves you are guilty.

              As for the Presidential power over foreign policy, it’s a trivial case to make. Foreign policy is handled by the Secretary of State, who works directly for the President to implement the President’s foreign policy, as does the entire State Department. The Constitution created the office and put it in the executive branch, and gave the President the power to negotiate treaties, appoint ambassadors, and receive ambassadors. All it gives to Congress are the power to write uniform rules for naturalization, the power to declare war, and the power to regulate commerce and set duties and tariffs.Report

              • Avatar DavidTC in reply to George Turner
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                says:

                Before Obama was sued over the passport issue, he was secretly violating the law with asserting his right to do so.

                Obama was ‘secretly’ ‘asserting’ things, huh? That’s an interesting concept. Was he going to the Rose Garden when no one was there and standing behind the podium to announce it?

                Likewise, Trump had no need to assert his right or take it before the public

                There is literally a law created _to make what Trump did illegal_. This is not vague, this is not some random misapplied law, the law that the GAO is talking about was created for the sole of purpose of creating a crime out of perceived misbehavior of a president. Specifically, Richard Nixon’s.

                Misbehavior that Congress wanted to impeach Nixon for, and almost put in their draft articles of impeachment, until it was pointed out that wasn’t, strictly speaking, illegal.

                Congress then made it explicitly illegal.

                It’s one of the few specific laws targeted directly at the president, even if applies to some other people too.

                because nobody had questioned his actions.

                So your theory is…Trump doesn’t have to take things before the public because no one had questioned those things? (Ignoring the law about it.)

                So you mean…no one questions his specific actions?

                Who is ‘no one’? Obviously the public hadn’t questioned those actions, they didn’t know of them.

                Plenty of people in the administration were questioning it, and the DoD, and State Department, and Congress, all of them were wondering what the hell was going. A lot of them weren’t calling it a crime, because Trump was literally having the government lie to them. The ones that did know…some of them were calling it a crime.

                The second everyone did find out what had really happened, a few of parts of the government launched investigation, one of which just concluded, which you know, because you just quoted an article about it.

                Your premise seems to be: Part of the government not knowing about wrongdoing by other parts is implicit acceptance on their part of said wrongdoing, and they can never do anything about it later.

                That’s like saying that your failure to make your legal case before you’ve even been arrested and charged proves you are guilty.

                No, this is you saying you can get away with illegal things via keeping them secret and then pointing out the police never complained about the things they didn’t know about.

                ‘How dare you arrest me now, I got away with these crimes for year!’

                As for the Presidential power over foreign policy, it’s a trivial case to make. Foreign policy is handled by the Secretary of State, who works directly for the President to implement the President’s foreign policy, as does the entire State Department. The Constitution created the office and put it in the executive branch, and gave the President the power to negotiate treaties, appoint ambassadors, and receive ambassadors. All it gives to Congress are the power to write uniform rules for naturalization, the power to declare war, and the power to regulate commerce and set duties and tariffs.

                Pssst: The constitution did not create the office of the Secretary of State. Or the State Department. Congress did.Report

          • Avatar Aaron David in reply to DavidTC
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            says:

            You were asking what the justification for the stance that foreign relations is a presidential plenary power. I showed you where that comes from after I did a 30 second Google search.Report

            • Avatar DavidTC in reply to Aaron David
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              says:

              Yeah, that does look like a random google search.

              One that pretty much said exactly what I said, which was in opposite to ‘The Constitution allocates to the president sole authority over foreign policy (short of declaring war or signing a treaty). It does not permit Congress to substitute its foreign policy preferences for those of the president.’

              You…didn’t bother to interact with that, and even included stuff like statutory authority, which would obviously imply some of the president’s power in that area _isn’t_ constitutionally-based and actually belongs to Congress, who then delegated it. Thus literally proving my point.

              So I still have literally no idea where you’re standing on this, or point you’re trying to make. Or just…you’re just playing google?Report

              • Avatar Aaron David in reply to DavidTC
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                says:

                I am standing on the point that his powers, absent a compelling court case, are settled law.

                Per the constitution, he has sole discretion. As did Obama and
                bush and Clinton…

                And no, I didn’t bother to interact with the rest of your post, as you started off asking a question, and I answered it.Report

              • Avatar DavidTC in reply to Aaron David
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                says:

                So now I get it. You’re not serious.

                There is no possible way to believe that the president has sole ‘discretion’ or ‘power’ on foreign policy at literally the same time you’re quoting how the Senate has to sign treaties and consent to Ambassadors.

                Either you don’t know what the word ‘sole’ means, or you’ve bent your brain totally out of shape to defend Trump.Report

              • Avatar Aaron David in reply to DavidTC
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                says:

                What the chalupa?

                You asked a question, I answered it. Yes, he has sole discretion. Much like when Obama entered the Paris accords without having anything ratified, he can do it as he has sole discretion. It isn’t binding, but that is because another president can come in and change it. Only a treaty can bind the future, and then only partially. Also, ambassadors don’t direct foreign policy, as much as they might want to. They serve, once consented to, at the POTUS’s sole (there is that word again) discretion. Congress doesn’t get to direct anything once that consent is gained. Indeed, that position is ceremonial more than anything and the embassies can be run by other, non-consented people.

                As for “engaging’ with your comments, sorry, engaging with those who ask stupid questions that are easily answered, and who then try to bad mouth the answerer with some version of pot talk once their whole theme gets knocked down with a first glance, no, I don’t glance past the first line of such.Report

              • Avatar George Turner in reply to DavidTC
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                says:

                Given that the Constitution clearly puts the State Department in the executive branch, along with the other responsibilities, if the President doesn’t have “sole power” then he has “shared power”, which somehow isn’t spelled out anywhere and which would seem to contradict the separation of powers principle, one of the most important aspects of the Constitution.

                One would expect Congress to have an oversight role to verify that the government is running correctly, but that role doesn’t extend to setting another branch’s policy.

                This isn’t a case where a power vested in Congress is being undermined by things like “enforcement priorities” or Presidential signing statements. This is likely a case where Congress hasn’t been granted the power, and shouldn’t be dictating foreign policy through legislation. Certainly the Congress can pass all kinds of resolutions praising one regime or condemning another, but those shouldn’t carry the force of law, and it’s certainly not a crime to ignore them on the matter.

                If that weren’t the case, then the Republicans could have forced Obama to implement Republican foreign policy decisions. They could simply have made it illegal for his administration to do most of the things it did, and made it illegal for it not to do things Republicans wanted to do.

                And yet there he stood, with a pen and phone, along with Hillary, Kerry, Rice, and Powers, all confident that they were in charge of US foreign policy – because as the executive branch, they were.Report

              • Avatar DavidTC in reply to George Turner
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                says:

                Given that the Constitution clearly puts the State Department in the executive branch,

                Okay I thought I was being clear above, but I will repeat: The Constitution does not mention the State Department. The State Department was created by Congress. The bill creating it was signed into law by Washington on July 27, 1789. It is the first Federal Agency, but Congress could dissolve it tomorrow.

                One would expect Congress to have an oversight role to verify that the government is running correctly, but that role doesn’t extend to setting another branch’s policy.

                As I’ve mentioned several times…the Office of Management and Budget is not a foreign policy apparatus. It is the government’s internal cashier, passing money around internally, and it isn’t allowed to follow any sort of ‘policy’ at all, it follows hard and fast laws and court decisions.

                Trump appointed someone there who violated the law at the direction of Trump, and repeatedly lied about it.

                If you wish to assert that Trump had the right to stop funds from going to Ukraine via foreign policy, well, maybe he did! And maybe he could have ordered the DoD not to distribute the funds. Which could have been challenged in court, and I don’t know who would have won.

                That doesn’t mean he can illegally order the OMB not to give the DoD the funds. The OMB is not part of foreign policy…it’s not part of any policy. Just because the president might have some power to create an identical outcome, doesn’t make what he did legal.

                E.g., the president has the right to pardon people, he doesn’t have the right to appoint his own people to a Federal prison to help certain prisoners escape. And if he did, we’d have the right to impeach him for it, despite the fact he could have freed those people legally!

                Why would he hypothetically do this? For the same reason Trump did what what he did. Because what he was doing was so corrupt that doing it openly would be obviously be an abuse of power.Report

              • Avatar George Turner in reply to DavidTC
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                says:

                When it comes to foreign policy, the different departments don’t get to go off and do their own things. The Ag department didn’t get to continue shipping food to the Soviets if a US President decided we should cut them to gain some leverage on some other issue.

                When a President decides to get tough with a foreign country, perhaps conducting air strikes, there could well be plenty of existing arrangement made by Congress that he’ll stop cold, such as various student exchange programs, research projects, and even trade agreements passed by Congress. His decisions override all those laws, otherwise we might keep shipping weapons or blankets to the people we’re bombing because some trade agreement says we can freely trade with them.

                When a President slaps a trade embargo on some country, plenty of arrangements passed by Congress necessarily go out the window. That doesn’t make the President’s actions “illegal”.

                And investigating foreign corruption involving US officials is not an abuse of power, it’s a duty, and one he was obliged by treaty to perform.

                I have yet to see any clearly articulated standard under which Trump is guilty of an impeachable offense where Obama wouldn’t be guilty of perhaps hundreds of impeachable offenses for doing the same things, or far far worse.

                That’s not unexpected when crazy people trying to topple the elected government try to make up impeachment charges out of third-hand accounts of a random phone call.Report

              • Avatar DavidTC in reply to George Turner
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                says:

                I have yet to see any clearly articulated standard under which Trump is guilty of an impeachable offense where Obama wouldn’t be guilty of perhaps hundreds of impeachable offenses for doing the same things, or far far worse.

                I assume you haven’t read the GAO’s report, then, which makes it pretty clear that failing to transfer money to the DoD as required by the appropriations act is illegal. So I guess I have to summarize.

                As I said, and I keep repeating and you don’t seem to even respond to it: All other presidents kept policy decisions in parts of the government that were part of the administration. The parts of the government that made policy decisions.

                So, in case people don’t know at all what’s going on: There was a laws passed, which Trump signed, to give Ukraine some money. Some of this money would go through the State Department, other parts through the DoD.

                The way the government works is, those two Departments ask the OMB for the money, the funds get released to them, and then they would…sorta transfer it to Ukraine. (They weren’t actually straight up giving it to Ukraine, the Ukraine had to have a plan and spend the money how those Departments wants. That’s not really important.)

                That was what the law said.

                If Trump wanted to not give funds to Ukraine, he could have ordered the DoD and State Department not to do that, asserting some sort of foreign policy power to override the law. And fought that out in court. I don’t know how that would have gone.

                He didn’t do that. Instead, he apparently sorta tried to hint to each Department he didn’t want that to happen, without outright saying it.

                State followed this hints, and didn’t ask for the money. Which is…probably also illegal, but in a different way. We’re not talking about that here.

                But at the DoD, they’re a lot more professional, and without an explicit order, they’re going to follow the law and get the money for Ukraine and give it to them.

                If he wanted to stop the DoD from giving the money to Ukraine, he could have openly demanded it of the military. He could have, and everyone keeps insisting he has the power to do this, ‘made a policy decision’.

                He did not.

                Instead, he got the government’s internal _cashier_, called the Office of Management and Budget, to not give the DoD access to the money.

                Actually, he put his own person in the OMB first, because the bureaucrats at the OMB rightly wouldn’t do it, because, this is _explicitly_ illegal. The OMB is not allowed to follow ‘policy’. The OMB is obligated to transfer money solely as required by the law.

                Not only did he get them to break that law, he got the OMB to _lie to everyone_ and pretend there was some sort of technical glitch on the money.

                He didn’t make a ‘policy decision’. Policy decisions are statements to heads of Departments. A policy decision would have been to tell the DoD not to do this. He instead decided to secretly fuck around with internal money transfers, and have everyone claim that there were unspecific ‘problems’ with what was happening.

                Now, all that is objective facts. He did things in a very strange, and explicitly illegal, way, instead of just using his supposed foreign policy power to shut down or delay the foreign aid.

                Why? Well, that’s an opinion, and I’m just sticking to facts here, although the only advantage to this that anyone can see is the secrecy.Report

  3. Avatar Stillwater
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    says:

    Trump is in an enviable position: since he has zero interest in arguing the case on the merits (since his acquittal is foregone) he can employ defense attorneys who have star power and/or are good on TV so’s to win the propaganda war.Report

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