The White House signaled today it is ready to aggressively defend President Trump in a near-certain Senate impeachment trial in the coming weeks, as legal experts called by House Democrats testified in a contentious hearing that Trump’s Ukraine dealings constitute an impeachable offense.
Eric Ueland, the White House director of legislative affairs, told reporters that Trump “wants his case made fully in the Senate,” previewing a strategy that would include live witnesses on the floor, rather than videotaped depositions that were entered into evidence during President Bill Clinton’s impeachment trial in 1999.
“In this instance, we believe very strongly — given the fatally flawed process in the House — that if they were to elect against our better advice [and] send over impeachment to the Senate, that we need witnesses as part of our trial and a full defense of the president on the facts,” Ueland said, gesturing toward the Senate chamber.
Ueland was among a quartet of top White House officials, including Counsel Pat Cipollone, who met with GOP senators on Wednesday as the administration continues to strategize with Republicans on the Senate proceedings.
The private session underscored the extent to which Trump has largely blown off the House inquiry and is focusing on a likely trial in the GOP-controlled Senate, where the White House says he would get a fair defense and can easily win an acquittal.
Meanwhile, Senate Majority Leader Mitch McConnell went off about the Democrats’ impeachment effort directly after House Speaker Nancy Pelosi green-lit articles of impeachment being written this morning on Capitol Hill.
On the Senate floor, McConnell said Democrats were prioritizing ‘political performance art,’ and uttered, ‘It’s all impeachment, all the time.’
As the House begins discussing specific articles of impeachment, Trump is relying almost exclusively on Cipollone and his in-house team of attorneys.
In the face of allegations that Trump abused his office for political gain, the White House lawyers are not sharing with his personal attorneys some internal government records central to the inquiry about the pressure the administration put on Ukraine, citing the need to protect executive privilege.
The unusual decision to have the White House counsel captain the president’s defense — at least for now — departs from how previous presidents have contended with impeachment proceedings and has worried some Trump allies, who believe a multipronged defense would be stronger.
It also contrasts sharply with the legal strategy the White House deployed in responding to former special counsel Robert Mueller’s investigation.
In that case, Trump’s personal lawyers led his defense in coordination with select White House attorneys.
Since then, Cipollone has become the White House counsel, replacing Donald McGahn, who considered himself a fact witness and recused himself from dealing with the special counsel’s office.
With the impeachment probe, Cipollone has taken the lead, operating separately from Jay Sekulow, a conservative Christian legal advocate who is the leader of the president’s personal legal team, joined by seasoned white-collar defense lawyers Jane and Marty Raskin.
A fourth member of the team — former New York mayor Rudolph Giuliani — is largely walled off from the legal strategy because of his role in the Ukraine pressure campaign.
Lawyers who have experience with prior impeachment proceedings and experts in executive privilege said the White House’s legal strategy deprives Trump of a personal advocate who is well-versed in facts that could be damaging or helpful to his defense.
“It doesn’t make a lot of sense to me,” said Bob Bennett, a veteran white-collar defense lawyer who represented President Bill Clinton when he faced a sexual harassment lawsuit from Paula Jones.
The decision to place the White House Counsel’s Office in the lead role — and to withhold from his outside attorneys government records, including documents about Trump’s order to hold U.S. security assistance to Ukraine — is based on two factors, according to people briefed on the decision.
White House lawyers and Trump’s attorneys determined that the impeachment probe centers squarely on actions he took in his official role as president, which are properly defended by the White House counsel.
They view the scenario as very different from the 1990s, when the House investigated Clinton for lying about a personal, sexual relationship with a White House intern.
Lawyers in the counsel’s office have also expressed concern that sharing records with people outside the White House could potentially weaken their efforts to block the release of documents to Congress.
Cipollone’s office has asserted a very broad claim that it will not provide any White House records to House investigators because they are all probably covered by executive privilege.
Trump’s allies argue that the president acted properly in withholding aid and pushing for an investigation of the Bidens out of concern about corruption in Ukraine.
“This is the White House defending his actions as president,” said one person briefed on the legal decision who spoke on the condition of anonymity because of the ongoing inquiry. “It’s completely different than Clinton, which was about his personal actions. It’s the mirror opposite of the Clinton probe.”
Trump’s personal lawyers could eventually increase their role, depending on which impeachment charges are brought, whether any include matters investigated by Mueller and what form the future Senate trial takes.
The personal legal team has the most experience with the facts of the special-counsel investigation.
In past impeachment inquiries, presidents had the benefit of personal counsel at their side amid the proceedings.
Clinton had David Kendall, who worked closely with White House counsel Charles Ruff.
President Richard M. Nixon was represented by personal counsel James St. Clair before the House Judiciary Committee.
Several legal experts said they see no legal reason — and little benefit to Trump — to keep the president’s personal lawyers at bay.
Experts note that a president’s personal advocates have a unique and valuable role in building a defense, one that is different than a White House counsel defending the institution of the presidency.
They also questioned the wisdom of holding back records from the president’s outside advocates, noting that they expect courts to reject Cipollone’s broad claim that all White House records related to Ukraine are protected by executive privilege.
Keeping the records from Trump’s personal lawyers doesn’t better shield them in the eyes of the law, they said.
“If it’s relevant to a legitimate investigation that seeks factual information about potential wrongdoing, I don’t think a claim of executive privilege would be upheld by the courts,” said Mark J. Rozell, an expert on executive privilege and dean of the government and public policy school at George Mason University. “It’s not privileged information; it’s evidence.”