In defending President Donald Trump against impeachment, the president's legal team has had to perform legal gymnastics to try and justify Trump's innocence, using tactics from stonewalling to outright lies to fight back against Democrats' allegations of Trump's wrongdoing. In a memo released prior to Trump's Senate trial, the president's lawyers turned to a new line of reasoning in their defense, claiming that “abuse of power,” one of the articles of impeachment the House voted in favor of, is not actually an impeachable offense because it's not a real crime. “House Democrats’ novel theory ’abuse of power’ improperly supplants the standard of ‘high Crimes and Misdemeanors’ with a made-up theory that would permanently weaken the Presidency by effectively permitting impeachments based merely on policy disagreements,” the memo argues. That line of thinking, however, has been widely disputed—including, in 2018, by Trump's own sycophantic attorney general.

The New York Times points out that in a memo written in the summer of 2018 when he was still a private attorney, now-U.S. Attorney General William Barr argued the exact opposite of what the Trump team is now claiming in their defense of the president. In the memo, which discredits the Mueller probe and argues that Trump should not talk to then-special prosecutor Robert Mueller, Barr argues that the president is shielded from criminal penalties and should not be held accountable by a special prosecutor. Instead, the president is held responsible by Congress and their impeachment powers—not just for criminal charges, but for “any abuses of discretion.” “Under the Framers’ plan, the determination whether the President is making decisions based on ‘improper’ motives or whether he is ‘faithfully’ discharging his responsibilities is left to the People, through the election process, and the Congress, through the Impeachment process,” Barr wrote. “The fact that President is answerable for any abuses of discretion and is ultimately subject to the judgment of Congress through the impeachment process means that the President is not the judge in his own cause.” (A spokeswoman for Barr declined to comment to the Times.)

Barr's argument that Congress has the constitutional right to impeach the president for abuse of power was politically helpful for Trump at the time, but also stands in line with mainstream legal thinking. Constitutional scholars have widely decried the Trump team's argument against the abuse of power charge, which University of Missouri law professor Frank O. Bowman III decried as “constitutional nonsense.” “The almost universal consensus—in Great Britain, in the colonies, in the American states between 1776 and 1787, at the Constitutional Convention and since—has been that criminal conduct is not required for impeachment,” Bowman, whose writings on impeachment Trump's lawyers cited in their memo, told the Times. And Barr isn't even the first member of the Trump team to have previously railed against the current pro-Trump argument. Lawyer Alan Dershowitz, who has joined the president's legal team for the impeachment trial, previously said in 1998 that impeachable offenses do not “have to be a crime.” “If you have somebody who completely corrupts the office of the president and abuses trust and who poses great danger to our liberty, you don’t need a technical crime,” Dershowitz said at the time. (Dershowitz now argues that “without a crime there can be no impeachment,” and, when confronted with his past remarks on CNN Monday, claimed that he is “just far more correct now than I was then.”)

The about-face on abuse of power is likely just the beginning of the Trump legal team's hypocritical approach to defending the president, as the Senate trial Tuesday suggested that the Trump defense is more concerned with what's politically expedient to say in the moment than what's been argued in the past. After Trump's Justice Department argued repeatedly in court that the judicial branch should stay out of the impeachment process and not get between Congress and the White House, the Trump legal team claimed on the Senate floor Tuesday that the impeachment process was unfair because House Democrats did not wait for legal disputes over congressional subpoenas to play out in the courts. “We’re acting as if the courts are an improper venue to determine constitutional issues of this magnitude? That is why we have courts,” Trump attorney Jay Sekulow argued Tuesday, putting forth an argument that Trump's own Department of Justice has directly refuted. In his rebuttal, House Intelligence Committee head and Impeachment Manager Adam Schiff was quick to point out the major contradiction on display. “Other lawyers—maybe not the ones at this table, but other lawyers for the president—are in the courts saying the exact opposite of what they’re telling you today,” Schiff said.

More Great Stories from Vanity Fair

— Is the DOJ’s Hillary Clinton investigation a bust?

— Do the Russians really have information on Mitch McConnell?

— The mystery of the Trump chaos trades, Iran/Mar-a-Lago edition

— Why Trump has a huge advantage over Dems with low-information voters

— The Obamoguls: propelled by still-potent political hope, Barack and Michelle have gone multiplatform

— New evidence suggests disturbing scheme by Trump’s Ukraine goons against Marie Yovanovitch

— From the Archive: The death and mysteries in Geneva of Edouard Stern

Looking for more? Sign up for our daily Hive newsletter and never miss a story.