The Trump Verdict: Why Bad Cases Can Make Bad Law

With the exception of one vote on one article of impeachment (by Sen. Mitt Romney), the acquittal of President Donald Trump went as predicted with a party-line vote. Notably, however, the vast majority of senators, including a significant number of Republican senators, expressly rejected the core defense offered by Professor Alan Dershowitz in their statements –rejecting the position that impeachable offenses must be based on criminal allegations and does not include allegations of abuse of power. What we did not see, as discussed in this column in The Washington Post, was a bipartisan rejection of Article II.

Here is the column:

Justice Oliver Wendell Holmes Jr. once wrote that “Great cases, like hard cases, make bad law.” The Trump impeachment case suggests the same is true about bad cases making bad law. The fact is that the greatest danger in the Trump impeachment was never the president’s acquittal or his conviction. It was the adoption of the extreme views advanced by both sides in the trial.

Every line of work — from law to carpentry to software — has its own house rule about how bad results come from bad beginnings. There is even an initialism for this: GIGO, or garbage in, garbage out. Unless senators use their closing arguments this week to clarify that they are not endorsing either the prosecution or defense premises in reaching their verdicts, this will go down as the GIGO impeachment: precedent created by false assumptions in both houses.

The House blundered in rushing an impeachment by Christmas rather than waiting a couple of months to submit a more complete case with added witnesses, court orders and evidence. Instead of seeking to compel such direct evidence, the House pushed the vote to impeach on the basis of what my co-witnesses called by the Democrats admitted was an inferential case. There is no question that you can make an inferential case for impeachment, but it is the difference between a strong and a weak case. Rather than wait a couple months to strengthen that record (as I suggested at the Judiciary hearing), the House muscled through an impeachment after the shortest investigation of a president in history.

The greatest concern in the House’s case was always the obstruction-of-Congress charge. The House declared that the administration’s failure to yield to demands for witnesses and evidence was by itself a high crime and misdemeanor. The problem is that other administrations have raised the presidential immunity claims made by the Trump administration, and those claims were supported by legal opinions from the Justice Department. Both Richard M. Nixon and Bill Clinton were able to litigate their privilege claims all the way to the Supreme Court before facing impeachment.

While Democrats have denounced the lack of bipartisanship in the Senate, they have not shown such bipartisanship in this impeachment or, for that matter, the Clinton impeachment where Democrats voted unanimously to acquit. The obstruction charge should be rejected on a bipartisan basis — not because both sides agree either with the underlying claims or President Trump — but because future Houses should be warned that such abbreviated investigations are a rush to judgment.

The greatest blunder of the White House, meanwhile, was its baffling decision to build its defense around the widely discredited theory of Alan Dershowitz that an impeachment requires a criminal allegation.

This was snatching defeat from the jaws of victory. The White House had strong arguments to make in its defense. It did not need to argue that a president can never be impeached for abuse of power.

That idea provided the most dramatic — and damaging — moment of the trial. Dershowitz’s argument — “if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment” — produced audible gasps. It was an argument that would have made Richard Nixon blush and suggested that any abuse of power short of a criminal act would be by definition unimpeachable.

The damage had been done. The president’s defense was then tied inextricably to this extreme and chilling argument. Lost were the myriad strong points raised by the president’s other lawyers. After Dershowitz sat down, the Trump impeachment became the Dershowitz defense. And by embracing this highly flawed logic, the defense robbed the president of the very legitimacy that he would seek in a more straightforward and law-based or fact-based acquittal.

Historians will always question whether a vote to acquit was based on an erroneous standard that held that abuse of power is not an impeachable offense.

Senators can still rise to this messy occasion with a bipartisan position on these two troubling elements.

First, at a minimum, Democrats should join Republicans in rejecting Article II. That will lead to more thorough House investigations in the future.

Second, Republicans should join Democrats in rejecting the Dershowitz defense and, while voting to acquit, they should reaffirm that abuse of power is an impeachable offense, even without an allegation of a criminal violation.

When Holmes made his first statement on bad cases, he added a rarely quoted explanation: “For great cases are called great, not by reason of their importance … but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”

This is a great case marred by passion and distortion. What is surprising is that both blunders were not “accidental” but premeditated by the two parties. It undermined the legitimacy and authenticity of the actions in both chambers. Even if the senators cannot agree on what is appropriate for impeachment, they should at least agree on what is not appropriate. That will not make a bad case great, but it might provide a redeeming moment for the Senate as an institution.

57 thoughts on “The Trump Verdict: Why Bad Cases Can Make Bad Law”

  1. There are conservatives who simply repeat conservative talking points regardless of reality, then there are “thinking conservatives” – who attempt to make everything they say sound reasonable, by shying away from statements that are easily proven false, employing more sophisticated, less easily debunked, falsehoods to achieve the same thing.

    Thinking conservatives are often forced to refute their own party’s talking points, giving them a semblance of neutrality. But it’s not neutrality, it is professional and intellectual pride; they are perfectly happy to spin stories to flatter Republicans and denigrate Democrats where what they are doing depends more on opinion and isn’t a direct contradiction of easily provable fact.

    Turley’s recent column on the BBC News site ( https://www.bbc.co.uk/news/world-us-canada-51389540 ) as well as this one, casts Democrats and Republicans as equivalent opposites; with the impeachment lawyers of either side using similar tactics and neither having a claim to any higher ground. To conservatives, this might seem like a fair comment; to liberals and objective centrists, however, it is blatantly disingenuous bothsiderism. Democrats correctly interpreted the constitution, in agreement with Turley’s own take on it (even quoting him), whereas Republicans used a deliberate misinterpretation, even going so far that the rest of Trump’s defense team felt they had to publicly reject Dershowitz’s position. How Turley spins this as being equal and opposite is logically inexplicable, while it makes perfect sense in partisan politics.

    The Democratic team wanted witnesses and documentary evidence, knowing that direct first hand testimony from current and former Trump administration staffers would bolster their proof. Not that they needed to do this to convince any objective observer, but because it would make it extremely difficult for partisan Republicans to continue to deny the charges. Republicans blocked all such evidence, for exactly that reason. That’s not equivalent, it’s one team trying to expose the facts and the other deliberately hiding them. While they were on opposite sides, their behavior was not equally partisan – one side had the truth as its goal, the other wanted to hide it even at the expense of being seen to corrupt the process.

    In the BBC article, Turley extrapolates this bothsiderism theme to compare Fox News with MSNBC and CNN. While there is certainly a liberal slant on MSNBC and CNN, they are both highly factual. They might focus more on negative aspects of Trump and Republican behavior, but they do so based on reality: what they actually say and do. That’s not so with Fox News, which regularly misrepresents the facts and invents “alternative facts” to favor Trump and denigrate Democrats.

    MSNBC and CNN are thus much closer to being the opposite equivalent of Turley himself, presenting factual information in a subtly biased way. There is no opposite equivalent of Fox News in mainstream media, you have to get down into left wing conspiracy theory websites with relatively tiny readerships. The opposite of Turley, roughly speaking, would be someone like Rachel Maddow: Both meticulous sticklers for the facts, both willing to stress facts that help their argument, both willing to leave out key information that detracts from their argument, and both with a biased agenda and the skills to defend it. Although, in Maddow’s case, she generally provides context for her convenient facts; something Turley is apt to skip.

    One of Turley’s key criticisms of the Democrat’s impeachment effort – a reason he uses, subtly, to justify Republican senators’ rationale for acquittal – is that they went too early, before waiting for the courts to force witnesses to testify. The reason he cites is that Democrats wanted it done by Christmas (presumably so as not to interfere with their 2020 candidate selection process). While that might have been an added bonus, it’s not a central or key reason. Given that the charges against Trump involved an attempt to interfere in the upcoming election, there simply wasn’t time to wait for the Supreme Court to rule – since it’s extremely unlikely to do so before the election. Democrats’ attempt to prevent that interference had to happen before the election it was interfering with.

    As several “thinking” Republican senators admitted, when attempting to excuse their decision to block evidence in more reasonable terms, Democrats didn’t need more witnesses, their case was already proven. Instead they went with a misinterpretation of “High crimes and misdemeanors”, one which Turley felt forced to reject. The case wasn’t lost by Democrats not presenting a better case, it was rejected on whatever grounds individual senate Republicans thought they could best sell to their biased conservative constituents.

    The court battle to enforce subpoenas was frivolous by any reasonable measure. None of the witnesses had any legal basis to ignore congressional subpoenas. Lower courts had already confirmed this unequivocally, and the process of dragging it through to the Supreme Court was specifically, and exclusively, designed to delay their testimony until after the 2020 election (or so close as to render any impeachment trial dead on arrival). They weren’t claiming executive privilege, and even if they were that can’t be used to block evidence of criminal behavior.

    Here Turley is clearly siding with the Republican defense, not because it makes sense or because it protects anyone’s rights, but because it serves conservative purposes and there is no specific black and white law to prevent it. Passing it off as if Democrats had failed to present the best case pragmatically available to them is pure spin. And using that to imply that Republican senators were therefore justified in rejecting a guilty verdict is an egregious misrepresentation.

    There are two ways to defend conservatives’ undemocratic behavior: You can lie about everything and reveal yourself as a dishonest partisan; or you can pick and choose your deceit carefully, attempting to sound reasonable to a much wider audience (as long as they aren’t political or legal wonks), and hide your deceitfulness behind more subtle, technically more difficult to debunk, tricks of the trade.

    In a landscape in which the president commits crimes and lies at an unprecedented rate, coupled with a white supremacist, populist platform; minimally partisan, highly reputable journalism can be seen as neither of those things by biased conservatives. That those tribal conservatives see MSNBC as equivalent to Fox News says a lot more about their level of subconscious bias than about any true equivalence. That Turley is one of them shows that expertise is no escape from bias – though it calls into question just how much of it is genuinely subconscious and how much is a conscious effort to misinform and manipulate.

    Subconscious bias is a useful tool to those who choose to manipulate it deliberately. If it’s done subtly and skillfully, people find it hard to spot. But once it’s pointed out, it becomes more obvious. In this way, the reputation of thinking conservatives – the thing that gives them power – is exposed for what it is: Elitist manipulation and dishonesty, hiding behind deliberate, intellectualized confusion.

  2. I can’t be the only one who gets what Mr. Dershowitz was trying to say. In the first place, it was a response made extraordinary partly because it was made in response to an accusation that was itself extraordinary – this idea that political adversaries can impartially determine another person’s innermost motivations.

    I never took that statement all that seriously, and it’s pretty obvious his opponents are all too happy to present it out of context. I can’t imagine anyone ever using it as a basis of defense in the future.

      1. The Russians are a fine people with a bad government. Largely Christian, Western, militarily strong and personally brave they’d make wonderful allies. Why Fishy hates them says lots about Fishy and nothing about the people who sacrificed millions of their own to defeat the existential threat to both of us in 1940-45.

    1. Communist: The ends justify the means.

      Fishy says, “I’ll lie all day long to get what I want.”
      _______________________________________

      “…there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence.”

      America’s republican form of government “presupposes the existence of these qualities in a higher degree than any other form.”

      – James Madison, Federalist No. 55, 1788
      _________________________________

      The American Founders imposed controls on their system of self-governance. The American Founders imposed restrictions that citizens be “…free white person(s)…” and that voters be: Male, European, 21, with 50 lbs. Sterling or 50 acres.

      The unconstitutional 13th, 14th, 15th and 19th amendments have caused America to be out of the control established by the Founders. The entire communistic American welfare state is antithetical, unconstitutional and must be expunged.

  3. “ACTIONABLE MALICIOUS PROSECUTION”
    ___________________________________

    Durham County District Attorney Mike Nifong

    US prosecutor Mike Nifong to be disbarred for ethics violations and held in criminal contempt and sentenced to jail.

    On June 16, 2007, the North Carolina State Bar ordered Nifong disbarred after the bar’s three-member disciplinary panel unanimously found him guilty of fraud, dishonesty, deceit or misrepresentation; of making false statements of material fact before a judge; of making false statements of material fact before bar investigators, and of lying about withholding exculpatory DNA evidence.

    Following the state bar’s announcement, Nifong submitted a letter of resignation from his post as Durham County district attorney, that would have become effective in July 2007. However, on June 18, Durham Superior Court Judge Orlando Hudson ordered that Nifong be immediately removed from office.

    On August 31, 2007, Nifong was held in criminal contempt of court for knowingly making false statements to the court during the criminal proceedings. Durham Superior Court Judge W. Osmond Smith III sentenced Nifong to one day in jail, which he subsequently served.

    – Wiki

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