The debate in the House of Representatives over the articles of impeachment was disappointing. Democrats and Republicans mostly talked past each other, and each side made a lot of bad arguments. Here are some of the bad arguments that recurred often.
BZL 1. The facts are uncontested. Democrats kept saying the facts were uncontested, when the Republicans were clearly contesting them. Democrats, for the most part, refused to address the four points that Doug Collins kept hammering.
Republicans, for their part, ignored the evidence turned up by the investigation, much of it first hand, and insisted that the impeachment was based on “nothing but rumors.” Republicans kept repeating the four points articulated by Doug Collins, as though they were both uncontested and conclusive.
BZL 1. Democrat’s hatred of Trump shows bias. Aside from the question of whether the fact that a speaker is biased is proof that they are wrong (See BZL 5 below), it begs the question to assume that negative comments show bias. While it is true that Donald Trump was called a “con artist”, a “jackass”, a “malignant clown”, “unsound, uninformed, unhinged and unfit”, an “idiot”, and a “f-ing moron”, those comments were all made by Republicans, some of whom are senators who will be voting on whether to remove Trump from office. Would anyone argue that they should be disqualified from voting based on their comments?
BZL 2. Pontius Pilate and Salem. Republicans argued due process issues with varying degrees of credibility. One approach that definitely failed from a perspective of logic were the comparisons between the impeachment of President Trump and the Salem witch trials or the crucifixion of Jesus Christ. This is name calling pure and simple, with an emphasis on simple.
Similarly, the impeachment investigation in the House was criticized as being secretive, dark and hidden, when Republicans participated from the beginning, and the basement room was used because it was secure, not because no one knew it was there.
BZL 4. Appeals to emotion. One Democrat put up a poster of a crying child behind her as she spoke. She did not even try to make a connection between that and Ukraine or the articulated grounds for impeachment.
The Republican comparisons to Salem and the crucifixion, as well as the scary but inaccurate description of the impeachment investigation, also fall into this category.
BZL 5. Obama and the Javelins. Several Republicans pointed out the Javelin missiles were approved by the Trump administration, but not by the Obama administration. That is simply not relevant on the impeachment issues. If Trump did what the Democrats alleged, he could be impeached regardless of whether Ukraine now had access to Javelin missiles. The same could be said for other arguments made about the successes of the Trump presidency – the economy, the wall, etc. There is nothing that prevents a President with significant accomplishments from being impeached and removed; look at Richard Nixon.
BZL 5. Bias and hatred of Trump. Many Republicans pointed to evidence that Democrats hated Trump and wanted to impeach him from the beginning, and jumped from position to position as each prior claim failed. While there are some factual issues here – a) most Democrats resisted impeaching Trump until the Ukraine story broke, b) there is no inconsistency between bribery, extortion, quid pro quo and abuse of power, and c) the Muller investigation did not exonerate Trump and was not a hoax (with 34 indictments or guilty pleas, including guilty pleas or convictions of six Trump aides, you have to wonder how well Mueller could have done if the investigation had not been a complete hoax!), the real issue is relevance.
Saying there was bias against Trump in no way shows that the allegations are false. People can be both biased and correct. But the argument worked with the Mueller investigation, at least politically, and so was rolled out again here.
BZL 5. The 63 Million Voters. Republicans complained again and again about undoing the will of the 63 Million Americans who voted for Donald Trump. While Steny Hoyer noted that 65 Million Americans voted against Donald Trump, that too is beside the point. The argument that impeachment undoes the previous election did not get the Democrats very far with Bill Clinton, and rightly did not help Republicans avoid the impeachment of Donald Trump. Impeachment is not a recall proceeding, and is specifically authorized by the Constitution as a way of removing a duly elected president in extraordinary circumstances. The only relevant question is whether those extraordinary circumstances exist.
BZL 5. Criminal process arguments. Both Republicans and Democrats made bad process arguments. Democrats repeatedly said that the President had failed to prove that he was innocent, when nothing requires the President to mount a defense or participate in the proceedings. Under the Constitution the President can be completely passive, and wait to see if enough evidence can be presented to convince the House to impeach him and the Senate to remove him.
For their part, Republicans spoke as though this were a criminal trial, and the President had all the rights of a criminal defendant. They also spoke as though the job of the House was to weigh the evidence to see if the President had been proven guilty beyond a reasonable doubt of some crime.
However, all of the law professors who testified before the Judiciary Committee agreed that impeachment is not a criminal proceeding, and that it is not necessary to prove a crime to justify impeachment. So, failure to comply with standards of due process in a criminal proceeding is not relevant to the question of whether there was sufficient evidence to warrant a trial in the Senate on his removal.
This was the issue that the House really needed to decide – not whether the President “did it” or not (whatever “it” is), but whether there was enough evidence for the Senate to take up the question of whether he did it. This is comparable to the grand jury in a criminal proceeding, where it is not the job of the grand jury to decide whether the defendant is guilty. The role of the grand jury is only to determine if there is reasonable cause to believe a crime has been committed; if so, the question of guilt or innocence is for the trial. In impeachment, the reasonable cause determination is in the House, the trial is in the Senate. By blurring the process, both Democrats and Republicans got it wrong, and ended up talking past one another.
BZL 5 – Due Process. Aside from the arguments based on criminal process, Republicans raised a number of other due process arguments, which Democrats mostly ignored. Some Republicans charged a violation of the rules of the House, or of past impeachment proceedings. Because the House of Representatives has the sole power to impeach, it has the ability to create rules for the impeachment process each time it decides to do so. However, there is a question whether the process is fundamentally fair. To resort to a criminal law analogy again, is the issue with the confession that the suspect was beaten until he confessed, or that a police officer failed to give Miranda warnings? Both might involve due process issues, but they look very different from the perspective of fairness.
This is not a question that Democrats and Republicans engaged on. I would have liked an open discussion about what the process of impeachment should be. In particular, Republicans charged that both past practice and the rules of the House required that there be a minority hearing date, which was not allowed in this proceeding. Jerry Nadler avoided the discussion by referring to a letter that set out the Democratic response to the demand. But the public was not told about he contents of the letter, either by Democrats or Republicans, so far as I know.
There should have been an open discussion about the legitimate due process issues, and, if some process was denied, there should have been a discussion about whether it was serious enough to require dismissal of the proceedings.
