Fact-checking the Senate impeachment trial of President Trump

Wednesday, the House Democrats began formal arguments in the Senate impeachment trial of President Donald Trump.

A number of people involved made not-quite-accurate claims over everything from Trump’s phone call July 25 with Ukrainian President Volodymyr Zelensky to the Obama administration’s aid to Ukraine.

Must an impeachable offense involve a statutory crime?

During the trial Thursday, House Judiciary Chairman Jerry Nadler, D-N.Y., challenged the argument from President Trump’s defenders that impeachment must allege a violation of statutory law.

To make his point, Nadler played a 1999 video of Sen. Lindsey Graham, R-S.C., who was a manager 21 years ago in the impeachment trial of President Bill Clinton. The Constitution allows impeachment for “high crimes and misdemeanors,” a term that has been debated during the Trump investigation.

“What’s a high crime?” Graham asked in the well of the Senate in 1999. “How about an important person hurting somebody of low means? It’s not very scholarly, but I think it’s the truth. I think that’s what they meant by high crimes. Doesn’t even have to be a crime. It’s just when you start using your office and you’re acting in a way that hurts people, you’ve committed a high crime.”

Republicans have challenged the accusations of abuse of power and obstruction of Congress as vague and not grounded in established law.

For example, during the Dec. 18 debate by the full House on the articles of impeachment, Rep. James Sensenbrenner, R-Wis., who was a manager during President Bill Clinton’s impeachment trial said: “the Constitution says that any civil officer, including the President, may be impeached for treason, bribery, or other high crimes and misdemeanors. Unlike the Nixon and Clinton cases, there are no allegations that the President has committed a crime. We have had almost 3 years of nonstop investigations. We have had the Mueller report, we have had the Schiff investigation, we have had the Nadler investigation, and at no time has there been any evidence that indicates that Donald J. Trump violated any criminal statute of the United States.”

“This view is completely wrong,” Nadler said Thursday of the Republican argument. “It has no support in constitutional text and structure, original meaning, congressional precedents, common sense or the consensus of credible experts. In other words, it conflicts with every relevant consideration.”

Nadler quoted two constitutional scholars who testified at a Dec. 4 hearing in the impeachment inquiry.

Michael Gerhardt, a law professor at the University of North Carolina, said the Constitution “plainly does not” require a violation of law for impeachment.

“Everything that we know about the history of impeachment reinforces the conclusion that impeachable offenses do not have to be crimes,” Gerhardt said. “We look, again, at the context and gravity of the misconduct.”

Jonathan Turley, a law professor at George Washington University, submitted written testimony that said: “it is possible to establish a case for impeachment based on a non-criminal allegation of abuse of power.”

During a break Thursday, Sen. Mazie Hirono, D-Hawaii, said she would like to hear a rebuttal from Trump’s legal team that goes beyond saying abuse of power isn’t an impeachable offense.

“I am not particularly interested in legal arguments such as abuse of power is not impeachable because that has been rebutted by real constitutional scholars,” Hirono told reporters.

– Bart Jansen

Trump switches up dates of Schiff’s version of Zelensky phone call

President Donald Trump repeated one of his frequent factual errors Wednesday about Intelligence Committee Chairman Adam Schiff’s exaggerated version of the phone call between Trump and Zelensky.

The president said the White House released its partial transcript of the call in response to Schiff’s rendition, but it was released the day before, on Sept. 25. Speaking during an Intelligence Committee hearing on Sept. 26, Schiff did a “parody” of Trump’s words on the call, and the president reacted by accusing him of treason.

“I’d watch his lies,” Trump said in a Fox Business interview Wednesday. “I watch where they’ve actually played a rerun, which they shouldn’t even do, it was so bad, where he goes before Congress, and he makes a statement that I made, and it was a total fraud. I never made it. 

“That’s why I released the conversation, because if I didn’t release it, people would have said that I made the statement that he made. This guy is a fraud,” Trump said.

Live impeachment trial updates:Trump attacks Democrats in morning tweet storm

The president made a similar claim during a news conference in Davos, Switzerland, on Wednesday. “When we released that conversation, all hell broke out with the Democrats, because they say, ‘Wait a minute. This is much different than Shifty Schiff told us.’ “

Trump is correct that Schiff’s version was not totally accurate, relative to the summary of the call released by the White House, but the administration could not have released the call summary in response to Schiff. Rather, Schiff’s version was based on the White House’s summary.

Schiff gave “an embellished rendition of the White House memo of the July phone call,” FactCheck.org said. “As we’ve explained before, Schiff said he was recounting ‘the essence of what the president communicates’ and ‘in not so many words.’ “

– Jeanine Santucci

Schiff: In 2016, Russia hacked Democrats after Trump’s ‘Russia, if you’re listening …’

Schiff, the lead House impeachment manager, said Wednesday, “In 2016, candidate Trump implored Russians to hack his opponent’s email account, something the Russian military agency did hours later. Only hours later, they hacked his opponent’s campaign.”

Schiff referred to a remark Trump made July 27, 2016, during a news conference in Florida where he said he hoped Moscow could locate emails associated with his rival Hillary Clinton: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing,” he said. “I think you will probably be rewarded mightily by our press.” 

The report on Russian interference in the 2016 election issued by special counsel Robert Mueller noted that “within approximately five hours of Trump’s statement, [Russian military intelligence] officers targeted for the first time Clinton’s personal office,” including 15 email accounts at a specific domain, one of which belonged to a Clinton aide.

As noted by The New York Times, the events of that day in the summer of 2016 were part of an indictment against a dozen Russians charged with hacking by the Justice Department.  

In written responses provided by Trump during the Mueller investigation, the president said he made the “Russia, if you’re listening …” remark “in jest and sarcastically, as was apparent to any objective observer.” 

Although federal prosecutors said in the hacking indictment that the Russian hackers corresponded with several Americans, a top Justice Department lawyer said in unveiling the indictment that there was no evidence that the Americans were aware they were corresponding with Russian intelligence officers.

– Martina Stewart

Cruz: Obama administration sent ‘blankets and MREs’ to Ukraine

During a break in the trial Wednesday night, Sen. Ted Cruz, R-Texas, said the Obama administration “sent blankets and MRE’s” to Ukraine, “but they wouldn’t give lethal aid.”

“I traveled to Ukraine in 2014, came back and urged Barack Obama to give lethal military aid to Ukraine. The Obama administration refused to do so,” Cruz said. “Instead, they sent blankets and MRE’s.”

Cruz’s remarks echo others by fellow Republicans. Trump said Obama provided Ukraine with “pillows and sheets.” In 2015, Sen. John McCain, R-Ariz., said, “The Ukrainians are being slaughtered, and we’re sending them blankets and meals. Blankets don’t do well against Russian tanks.”

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The Obama administration provided hundreds of millions of dollars in aid to Ukraine, according to CNN and PolitiFact.com. 

Cruz is correct that lethal military aid began to be provided to Ukraine only during Trump’s tenure. “The first lethal deliveries came from Trump,” Jim Townsend, deputy assistant secretary of defense for European and NATO Policy during the Obama administration, told PolitiFact.

– Martina Stewart and Savannah Behrmann

Were Republicans, Trump allowed to participate in the House inquiry?

In a wide-ranging pair of speeches on the Senate floor Tuesday, Jay Sekulow, a private lawyer for Trump, and White House counsel Pat Cipollone accused Democrats of seeking to remove Trump since he was elected.

Sekulow said Schiff committed a “trifecta” of improprieties by denying Trump access to evidence, counsel at hearings and the right to cross-examine witnesses during the House inquiry.

“That’s a trifecta, a trifecta that violates the Constitution of the United States,” Sekulow said.

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House Democrats on three committees held closed-door depositions during the inquiry, but Republicans were allowed to attend and ask questions. The Judiciary Committee invited Trump’s lawyers to attend and participate in hearings by questioning witnesses, but the White House declined to participate in what Cipollone called a “baseless and highly partisan” inquiry.

GOP lawmakers were a part of the depositions, and the White House lawyers representing the president declined to participate in the House Judiciary Committee hearings, as detailed by PolitiFact. 

– Bart Jansen

What the Mueller report found on obstruction of justice

Sekulow said Tuesday that “there was no obstruction,” referring to the special counsel’s report on Russian interference.

The report detailed 11 episodes of conduct by Trump that might have constituted obstruction, but Mueller refused to make a firm conclusion on the issue.   

As USA TODAY explained, “In leaving that issue unanswered, Mueller neither charged Trump with an offense nor exonerated him, leaving the next moves up to Congress.”

FactCheck.org said that in punting on the question, the Mueller report pointed to “difficult [legal] issues” involved in indicting a sitting president, including concerns about violating the constitutional principle of separation of powers as detailed in an October 2000 legal opinion by the Justice Department.

– Martina Stewart

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