Has enough time passed that we can look calmly at certain aspects of President Trump’s impeachment and trial? Locally, the Utah legislature has backed off; they’re not pushing through a resolution censuring Senator Mitt Romney for voting yea on one article of impeachment. There are still a couple of electronic billboards along I-15 in Salt Lake County which are inviting him to quit, but that could go on for years.
[Later note: For some reason this post did not become visible to the public generally when it should have. One way or another, it’s my mistake, and I apologize. The billboards on my commute telling Senator Romney to resign seem to have disappeared by now, and our minds are on other, bigger things. But the lessons here are portable, and the experience bears remembering, even if you’re reading this in March, not February, 2020. As ever, thanks for reading!]
Impeaching and trying a president, as we’ve lately done, is hardly common, but the day-to-day tactics were familiar from many other, mostly smaller battles, and we’ll surely see them again.
One familiar ploy seemed even more common than usual. (Perhaps more common in two senses.) Or maybe it’s two related ploys: distorting the measure that was or will be voted on and distorting the meaning of overall results or individual votes.
The spin machines on both sides — all sides — are rarely idle, but this time they worked triple shifts at full capacity.
Data and Meaning
At my day job in digital marketing, I spend part of my time collecting and validating data. Once the data has accumulated enough to be actionable, I try to figure out what it means — and doesn’t mean. Figuring out what it doesn’t mean is often the more elusive quest, but it’s critical. If I can’t do that — if I don’t know what I don’t know — I make bad decisions with unwarranted confidence, and I lead others to do the same.
We’re rarely so disciplined in our politics. We seem to prefer taking a single datum — a legislator’s vote, yea or nay; a given bill or resolution; or even a few convenient words from some measure or statement, wrenched from their context — and spinning it to serve our immediate rhetorical goals. If our spin departs radically from reality but still advances our goals, we act even more urgently — because a lie can get halfway around the world while the truth is still lacing its boots, and we want that advantage.
I emphasize again that this abuse of truth and reason is a bipartisan pursuit; I’m not pointing fingers solely at the Left or the Right.
Substituting, at least rhetorically, a different question for the real one and then mischaracterizing the meaning of a vote can be great for fund-raising and attack ads. It can backfire in the long term, but it can sway some voters in the short term, and it pleases loyal partisans.
This is how we get Trumpists, including our Very Stable Genius himself, crowing that acquittal means the President did nothing wrong and, before that, speaking of “perfect” phone calls. (I’ve argued that the famous phone call wasn’t necessarily an abuse of power, let alone impeachable, but it was reckless and stupid.)
This is also how we got Trump-haters in Congress, the media, and my Facebook feed claiming that acquittal signaled the GOP’s near-unanimous, arguably new conviction that the President should have absolute power, or at least that whatever he wants to do is fine with them.
This is also where we got the bizarre idea that suddenly it’s the Left that cares about constitutional government and the rule of law generally.
Hypothetically, Bart Simpson
Here’s a hypothetical case. Please resist the temptation to read it as an allegory of the impeachment, though it is informed by that recent process and my many but less recent days on jury duty.
Suppose a local miscreant, one Bart Simpson, is on trial for grand theft auto and felony jaywalking. (That’s jaywalking in the commission of another crime. I made it up, I hope.) The prosecution alleges that he jaywalked to get to a school bus, which he stole and sold to the local chop shop.
Now suppose that you’re on the jury at his trial on these two charges.
There is surveillance camera footage which clearly shows him jaywalking. However, the evidence is only circumstantial that he stole the school bus. You see, Sabrina the Teenage Witch was also on the bus, and there’s no clear evidence showing who was driving or who, if either, was an unwilling victim. For that matter, you’ve heard testimony that Sabrina sometimes uses her magic to compel Bart to do mischievous things, like making prank phone calls asking for Seymour Butts. Furthermore, the wad of cash the chop shop presumably paid to the thief is not in evidence.
After hearing and seeing all the evidence and listening to all the arguments, you’re persuaded beyond a reasonable doubt that he jaywalked.
You suspect he stole the bus too, and you wonder if he invited Sabrina along to confuse a potential jury as to who was in control. But the evidence before you is inadequate; you have a laundry list of reasonable doubts, where just one would be dispositive.
The soup thickens. To raise misdemeanor jaywalking to felony jaywalking, they have to make the case for grand theft auto. If they don’t, there’s no felony; they can only get him for misdemeanor jaywalking — which they didn’t charge, so you can’t convict him of it.
After careful deliberation, you and the rest of the jury vote to acquit Bart on the grand theft auto charge; the prosecution simply didn’t make its case. Without that, there’s no felony jaywalking, so you vote to acquit him of that as well. You would happily have found him guilty of simple misdemeanor jaywalking, but that wasn’t an option.
When news of Bart’s acquittal gets out, social media and the Big Media Acronyms go nuts. So does your spouse and most of the rest of the family.
The Aforementioned Nuts-Going
On social media you read that the whole country is circling the bowl, because twelve jurors, including you, think jaywalking is just fine, and so is grand theft auto. People offer two explanations of your vote to acquit: either you prefer anarchy or you admire the scofflaw Mr. Simpson, who happens to be a television star.
You agree to appear on a CNN panel, where you try to explain that you think Bart was probably guilty, but the prosecutors didn’t make their case beyond a reasonable doubt.
One panelist, a pundit you follow on Facebook, can’t believe it’s okay with you if someone steals your car and kidnaps your daughter in the process. That’s not what your vote to acquit meant, but that’s the spin.
You try to say that “We know he’s guilty” and “He must have done something” are not useful legal arguments. You want to ask if it’s okay with the pundit if we undermine due process in order to get the result we want, and which we’re persuaded is just. But you don’t get the chance.
Another panelist, a Member of Congress, denounces you in an impassioned speech, because you and your fellow jurors have given Bart Simpson society’s permission to engage in genocide; large-scale pollution of water, land, and air; and the wanton consumption and trafficking of transfats. Democracy, rule of law, and therefore the US Constitution itself died with your vote, he says.
If you could get a word in edgewise, you’d say that you were following the law scrupulously throughout, so rule of law is actually intact, and the Constitution lives to fight another day.
The fourth panelist is the prosecutor from the trial, who repeats part of his closing argument, saying that, even if we’re not sure Bart stole the bus, or that he was acting on his own volition when he did, we still have to convict him, or he’ll do it again with another bus. We know he will, because he did it with this bus (in addition to making prank calls and jaywalking). He’s a bus-stealer, and we have to lock him up to insure the safety of our school-age nieces and nephews, who might be on the next bus, as well as the integrity of our laws and Constitution. Next time, Bad Bart will probably just kill the kids on the bus for fun, before he drives it away, because, as we all know, he’s a sociopath and a budding, un-American tyrant.
Again, don’t read this as an allegory. Just notice the following:
- The question before you, the juror, was whether the prosecution proved Mr. Simpson guilty beyond a reasonable doubt of felony jaywalking and grand theft auto.
- The meaning of your vote to acquit was that in your judgment they failed to prove his guilt beyond a reasonable doubt.
The jury was not asked and could offer no official opinion whether Mr. Simpson is in other respects an honest, law-abiding citizen, or whether he will someday jaywalk again and/or misappropriate a large motor vehicle. Your verdict cannot reasonably be construed, by Mr. Simpson or anyone else, as society’s official permission to commit graver (or more trivial) crimes, or as a statement that the jurors and society at large are okay with people stealing school buses.
I feel as if I’m beating my point to death — which I admit is all the rage in this rage-filled era — so let’s exit our hypothetical and consider two real-world examples of spinning — distorting — questions and votes.
I should warn you that the Bart Simpson/Sabrina the Teenage Witch portion of our program is over. If you’re just here for them, or if — which I doubt — you’re happiest when parroting White House or Democrat talking points without reflection or amendment — an all-too-common lifestyle choice in 2020 — you may wish to exit here.
For the rest of you, here are two examples from the impeachment process, both of which have been spun for months and will be spun for election cycles to come. We’ll start with the simpler one.
Senators Voting on Witnesses
After a few dozen hours hearing both sides and asking questions, the Senate voted 51-49 not to call additional witnesses. The predictable rhetoric started days in advance of the vote, and we’ll hear it again.
Some of the news reports I heard (from various outlets) accurately characterized the decision: to call additional witnesses or not — that is, in additional to the 18 witnesses whose testimony the House heard in its aggressively one-sided hearings.
Many reports and many statements by Democratic senators (Dick Durbin, D-Illinois, for example, and Minority Leader Charles Schumer, D-New York), to say nothing of a lot of chatter in my Facebook feed, spun it this way: the choice was to have a trial with witnesses or with no witnesses at all; with evidence or with no evidence at all. The latter sounds unjust, purely partisan — and conveniently allows the Democrats to claim that the acquittal itself wasn’t real or legitimate, because the Senate trial wasn’t a real trial. (What a boon for fund-raising! What a lovely crutch for stump speeches!)
I would like to have heard the following witnesses examined and cross-examined:
- John Bolton
- the whistleblower
- Hunter Biden
- Joe Biden
- Adam Schiff himself (which is a little dicey, since he was one of the House managers arguing for the prosecution, but he’s in this up to his ubiquitous eyeballs)
- a certain intelligence community inspector general whose testimony Chairman Schiff suppressed
Yes, I’m aware that the spin machine and its many disciples on social media insist that the Bidens are not relevant to this impeachment, and there’s no evidence of their involvement in any corruption, but they are, and there is. If there was reasonable cause to investigate corruption in Ukraine involving the Bidens, then I and many others would disregard and dismiss the abuse of power charge in the first article of impeachment.
In any case I can understand a Senator on either side saying, “I’ve heard 24 hours of the House presenting its case. I’ve many hours of the defense presenting its case. We’ve had sixteen hours of questions and answers after that. It’s clear in my mind that the House did (or didn’t) make its case. I don’t need any more testimony. I’m ready to vote.”
Granted, the Democrats weren’t playing to the Senate here, so senators not needing more evidence is off point. They were playing to the voters, making soundbites for their partners in the media to play and replay — so the more witnesses, the better, and if testimony went the wrong way, they could just neglect to report it, as they mostly did with the defense case during the trial. It’s difficult to imagine them not making such a calculation.
I suspect that the Democrats would have panicked, if additional witnesses were called. They had more to lose, and the odds of any additional testimony affecting the final vote were practically nil. So a Democrat’s vote for additional witnesses could have signified that a senator wanted to appear loyal to the party or play to the voters, and was willing to do so, as long as there was no chance of winning the vote and actually bringing in more witnesses.
But other motives are possible, even likely, including the following.
In my snarky, impatient head, I can understand a Senator on either side saying that the House didn’t deserve to have any more witnesses called.
The grounds for this could be hypocrisy. The House couldn’t wait for courts to decide whether certain witnesses initially denied them had to testify or not; they said it was urgent to move forward — then they delayed sending the impeachment to the Senate for weeks after their vote to impeach. And after shamelessly conducting an almost unimaginably unfair process in the House, they loudly demanded fairness — whatever that means in their heads — from the Senate. (I think they got it. At least both sides were heard.)
The grounds could also have been congressional hubris or stupidity. The House managers said over and over again that they had all they needed already, that it was a rock-solid, airtight, slam-dunk case for removing the President. But then they wanted more — after offending, lecturing, and condescending to a captive audience of senatorial egos for days on end.
The latter scenario especially may not sound like perfect justice. It may sound like political convenience. (Impeachment is a political process.) Frankly, to me it sounds more like parenting: You said you were too full to eat your vegetables? Then you won’t be having dessert.
A vote against addititonal witnesses might have been a vote to get it over with and quit interfering with major non-Biden, non-Buttigieg candidates in the Iowa Caucuses.
A vote for additional witnesses might have been a vote to keep interfering with Iowa, in support of Joe Biden or Mayor Pete. It may have had no bearing on the matter actually in question.
But let’s presume that most senators, at least, were focused on the actual question. In that case, the bottom line is that the question was not whether to proceed without witness testimony or not. It was to add (or not) to 18 witnesses’ testimony and other evidence which were already presented as part of the House case. A reasonable concern for justice could have taken a senator either way on the real question.
The Vote to Convict or Acquit
The spin of the final vote was equally predictable, and both sides were already spinning it well in advance.
Some on both sides said (and say) that a vote to acquit is a declaration that the President has done nothing wrong. Of course, some on one side believe he’s actually done everything wrong, and some on the other side, equally deluded, declare he’s completely innocent. Neither extreme is reasonable; is any of us completely innocent or always wrong?
The Left says that a vote to acquit is official permission for the President to assume totalitarian, dictatorial powers. This is childish, but these are childish people in a childish age.
(Historical note: Opposition accusations that a current president is making himself a monarch or dictator go back to George Washington’s first term and, as far as I can tell, have been leveled at every president since. And no, I don’t put Donald Trump in George Washington’s league — or even the next-lower league. Or the league below that. I’m not saying these accusations against presidents have always been completely false, though with Washington they were ludicrous.)
Both sides say that the other side’s votes constitute turning a blind eye to the other side’s rampant corruption and election tampering.
Both say that the opposition’s votes violate Senators’ oaths and undermine the Constitution.
Both sides find their respective opponents unpatriotic, near-treasonous in their betrayal of all that is right and good, and glaring case studies in politics reigning over principle.
The Left says that a Senator’s vote to acquit is an overt stamp of approval for any crime, including sexual assault, bribery, and murder, which the President might want to commit, or of which he has already been accused.
With slightly more subtlety, they say that a vote to acquit is a message to the President that he can get away with any misdeeds which fall short of the Constitution’s threshold for impeachment: “treason, bribery, or other high crimes and misdemeanors.” I confess this sounds like (a) status quo ante, and (b) a backhanded admission that the offenses alleged in the articles of impeachment fell short of that standard.
By the way, both sides are not just saying these things about US Senators and their votes. They’re saying them about anyone who dares to venture an opinion on either side — and if you corner them, they’ll sometimes include anyone who elects not to take sides. Both sides are going after the opposition’s voters and donors, not just Senators.
And again, it’s not just national media and political figures. It’s many of the rank and file, who are comfortable embracing their side’s talking points and hatreds, and parrotting them against their friends and neighbors who are either on the other side or simply not firmly enough on their side.
Maybe there’s a Republican Senator or two who thinks President Trump is pure as the wind-driven snow, just as there seem to be some Democrat Senators who only started believing there’s a devil when President Trump was elected. Generally speaking, we’re not talking about our wisest demographic.
I’m fairly certain there were some votes to convict from Senators who don’t think the offenses actually charged were a big deal — who recognized them as very near (if not on) the beaten path for foreign relations and executive/legislative wrangling — but voted to remove the President because of other things they believe (credibly or credulously) he has done, or simply because they don’t think they can defeat him at the polls.
I Would Vote to Convict If …
If you think my Bart/Sabrina hypothetical was fanciful, wait ’til you see the next one, which is this: Let’s suppose that I was a US Senator, that I was determined to vote on some more honorable basis than naked partisanship, and that I conscientiously absorbed every endless hour of both the House (prosecution) and defense cases presented to me in the Senate.
(Yeah, I know. That was about as likely as the Democratic Party not screwing Bernie Sanders every which way but loose.)
If I were satisfied that the House had made its case, with respect to either or both of the articles of impeachment — that is, if I believed he abused his power as described and/or criminally obstructed Congress — and if I believed that these offenses warrant his removal as President of the United States (by the Senate, not the people in the next election) … I would vote to convict and remove him.
My vote would mean that I believe he did what the articles of impeachment charge, and that these offenses warrant his removal. It would not be a comment on anything else, including any other actual or alleged misconduct, or anything he may or may not do in the future.
I Would Vote to Acquit If …
Here are a number of reasons why I might vote to acquit the President — or in other words, things my vote to acquit might mean. I suspect that most or all of these fit at least one Senator, but I wouldn’t presume to connect any of them with specific names or numbers of Senators.
I would vote to acquit if:
- If I believe that the President is innocent of the specific charges contained in articles of impeachment.
- If I believe that he is guilty of some or all of the specific charges in the articles of impeachment, but they, individually or collectively, do not warrant his removal. (Note that I don’t get to vote “guilty but don’t remove.”)
- If I believe him guilty of the specific charges cited, which might warrant his removal earlier in his term but are not sufficient to require his removal nine months before a presidential election.
- If I believe that presidential candidates who are sitting US Senators should recuse themselves from a process intended to remove the other party’s candidate, but they didn’t.
- If I believe that we (whoever we may be) are better off with President Trump than President Pence.
- If I believe the President is guilty, but I think it’s folly (or disrespecting the voters) to remove him in so outrageously partisan and lopsided a process as the House produced.
- If I believe or suspect the President is guilty, but refuse to accept the testimony of witnesses whom committee chairs in the House would not permit to be cross-examined, and I find the remaining evidence insufficient.
- If I suspect the President is guilty, but reject the House managers’ case, because the House committees refused to hear from witnesses for the defense.
- If I believe the President is guilty and would like him removed, but the behavior of the House managers in the well of the Senate was so far beyond the pale that, for me, it delegtimized the process (or just really ticked me off).
- If I dislike the President and his behavior and think it best for the country to remove him, but my constituents overwhelmingly support him.
You see my point. Some will spin any consequential vote in the worst possible direction, but the truth is nearly always less extreme and less simple than that.
Bear in mind, of course, that impeachment is inherently a political process, and that judicial standards for due process, including the admissability of evidence and testimony, apply only to the extent that a majority of members can force them to, or to the extent that individual senators consider them when they vote.
Bear in mind also that hardly anyone in America listened to all of both sides’ cases in this matter. The Senators had to be present, but the Big Media Acronyms — after arguing the prosecution’s case almost exclusively for months — showed similar bias in their choices of how much of the prosecution’s and defense’s cases to broadcast, and how to report on the proceedings.
About Senator Romney
Senator Mitt Romney (R-Utah) voted to convict and remove on the first article, abuse of power, and to acquit on the second, obstruction of Congress. His was the only vote to break party lines.
He is now, probably briefly, a hero to the same Big Media Acronyms who painted him as a great villain in 2012, when he ran for president.
Meanwhile, here in Utah there are calls for him to be recalled (I don’t think we have a mechanism for that) or impeached (which isn’t an option, where Congress is concerned). Most of the people who called for such things — like the folks in my Facebook feed who screamed in ALL CAPS for his head — didn’t like him that much to begin with. Here in Utah some folks expect you to be unreasonably conservative, if you’re going to claim the conservative badge at all — and if you’re not, you should go breathe someone else’s air, if you won’t agree to stop breathing altogether.
Since some of you have asked …
My view of Senator Romney hasn’t changed.
I voted for him for president in 2012 — when I thought he ran a weak campaign against an unusually vulnerable incumbent — and for US Senate in 2018, because he was the best candidate in his race.
I consider Mitt Romney to be a man of unusual character, for a Washington politician. (There is some — far from enough — good character to be found in Washington on both sides of the aisle.)
I find him to be a fair-to-middling politician. Ungifted, you might say. He is clearly a politician; note that he rolled out a fairly sensible media strategy in advance of his controversial vote. He’s just not that good at it.
He has a reputation for flip-flopping, which I view as somewhat overbaked but also somewhat justified. I think it’s rooted in his view of government as more an operational matter than an ideological one. And some of it comes from his learning curve; he came rather late to politics, with a toolset which served him well in the corporate world but wasn’t, and to a degree still isn’t, adapted to national politics.
My first reaction when I heard of his impending vote was approximately this: He’s either not planning to run for reelection, or he wants to run as a Democrat or unaffiliated next time. He has more than four years left in his Senate term, and all sorts of things can happen, but ideologically poisoned Utah Republicans have very long, if selective and unreliable, memories.
My second reaction was: Did he just find a way to straddle three or four fences at once? That’s gotta hurt. (This was probably unfair of me.)
If you’ve read my earlier posts on impeachment, etc., you know that I think Senator Romney got it wrong in voting for conviction on the first article. If he wasn’t motivated by simple animus toward the President, I assume he decided that the House had made its case on both essential parts of the matter: that President Trump committed the alleged offense, and that its severity warranted his removal from office. I disagree, but I am also hampered by an obsolete sensibility which makes me unsuited for our modern politics: I can comfortably admit the possibility — here, the actuality — of good, intelligent people disagreeing with me.
That said, I won’t be turning to Senator Romney for any guidance as to the Constitution, our political history, or the history of the world. If, as he said, he cannot imagine a greater offense to the Constitution than what President Trump is alleged by its first article to have done, his constitutional and historical plow is set about a quarter-inch deep.
(How about funding secret wars, without the knowledge, let alone consent, of Congress? How about having the US Army surround and close the Capitol, so Congress cannot meet? How about incarcerating Supreme Court justices — either all of them or just the ones you oppose? How about using an outrageous misinterpretation of the Antiquities Act to create a huge national park to lock up key resources, in exchange for a large contribution for your party from the nation with whom those resources would most directly complete? How about ordering — or even allowing — senior FBI and Justice Department officials to lie and present fabricated evidence to the FISA court, to obtain and renew warrants to spy on the other party’s presidental campaign? Two items on this list haven’t happened in the United States, as far as I know.)
Maybe I should just celebrate Senator Romney’s apparently recent realization that Presidential breaches of constitutional authority are a gravely serious problem. He’s right. I just wish he’d come to that dance eight years earlier — perhaps in his own presidential debates.
The anti-Romney hotheads wouldn’t listen to me, but if they would, I’d want to tell them to cool off; realize that party (or ideology) really isn’t more important than principle, even when we don’t share exactly the same principles or act on them identically; realize that in the grand scheme of things Senator Romney’s vote to convict did not lead to conviction; and let’s get back to self-governing like adults, if we can.
Here’s the biggest reason why I speak of returning to adult behavior. The Left, among others, has used President Trump’s boorish behavior to justify even more outrageous behavior by a vast number of his opponents. It’s childish, immoral, and to a degree hypocritical. But the Right — some of it — seems just as willing to abandon any pretense of civility or basic human decency on the basis of a single vote they don’t like. That is no better.
In the End
I worry very little about President Trump deciding he can do anything he wants. We have most of the media, nearly every recognizable Democrat on the state and national levels, and more than a few Republicans eagerly spinning every good, neutral, and bad thing he does as unadulterated evil. (Somehow, the evil genius theory conflicts in my mind with the widespread conviction that he is simply unusually stupid.) I suppose I should worry that this incessant crying wolf will lead people to tune out when there’s something that should cause us serious concern.
I worry more that we’ve largely surrendered our role and capacity as free people to suspend judgment on the spin and wait patiently for things to unfold, as they usually do — and to see issues and people in shades of grey, not pure black and pure white. (I speak of morality, not skin color.)
The spin here will not end soon. My read for quite a while has been that the Democrats shot themselves in both feet, in the hope that a ricochet would hit the president. It’s mostly about the 2020 election and beyond, so the stakes are very high indeed. So they’re sparing no effort to hide their own blood on the floor and convince us that one of the ricochets found their target after all.
It probably won’t work, but it could.