A Teachable Moment: A Lesson in Rhetoric, Proof, & Jurisprudence Arising from the Impeachment of Trump, by an Old Lawyer

The Senate trial of Donald John Trump for two articles of impeachment brought by the House of Representatives

Let's use all of the hullabaloos for a "teachable moment." I've taken a quote from a Facebook comment that relates to the current impeachment trial. Let's dissect it and see what we can learn. Here's what the person says:

"[W]ere there a truly constitutionally established impeachable offense committed by a POTUS, the timing should be immaterial. The problem here is that this impeachment is purely politically motivated and at best based on a difference of opinion or views which should be handled in the traditional manner of an election."

I believe that this paragraph is representative of what Trump supporters have been saying for some time now, although it's a bit behind the curve, as I'll discuss later below.

1. "This impeachment is purely politically motivated." First, let's take away the modifier ["purely"] and consider whether his impeachment is "politically motivated." This statement is undoubtedly true. While the law and a Constitution consist of political questions that have been answered at least for the time being and gain the force of law. The force of law means that someone who acts contrary to this decision may be subject to penalties imposed by the state through the judicial process; that is, the scope of any issue is narrowed when we make a political decision that results in a law. But the law can be changed, and if done legitimately, it's done through the political process. This applies to the Constitution as well as zoning or traffic laws. And like ordinary statutes, the Constitution has been subject to changes by courts and the legislative branch (via the amendment process) throughout its history. And how we interpret the Constitution, as we can see around us even today, remains the subject of intense political discussion. The impeachment of Donald Trump involves the power of the presidency, along with many other issues. Some of these issues must be resolved by the courts, but the legislative branch, as an equal branch of the government under the Constitution, also has the responsibility to interpret and apply the Constitution. Under the circumstances of the current impeachment, we see Democrats directing their appeals to the text of the Constitution, legislative precedents about impeachment, and the writings of the Founders--especially Madison and Hamilton--to establish their case for impeachment. Trump supporters (apparently all Republicans) have shown much less concern with precedents and legal procedures. (So much for "conservatism.")

2. Now let's put back in the "purely." To say that the House impeachment is "purely politically motivated" is intended to mean, I assume, that it's been undertaken only to gain partisan advantage in the next election. In other words, the impeachment mimics Trump's desire to coerce Ukraine to investigate the Bidens. The impeachment has no legitimate purpose other than to gain an advantage in the next election. I will stipulate for purposes of argument to the implicit assertion that all of the information gained in the impeachment may (and should) give Democrats an advantage against Trump in the next election. But to agree that impeachment will certainly give Democrats an advantage in the next election isn't (or at least wasn't) a foregone conclusion. Remember that the Republican impeachment of Bill Clinton backfired and cost them dearly in the 1998 election, and it cost Newt Gingerich his speakership. Also, John Bolton might have come forward and offered to exonerate Trump instead of confirming Trump's intention to coerce an investigation of the Bidens. And remember that the Mueller's Report that documented a prima facie (on its face) case of obstruction of justice against Trump went nowhere, contrary to the hopes of most Democrats. So if it was "purely political," it was a hell of a gamble. It could have ended up as a big-nothing sandwich, as did the Benghazi investigations of Hillary Clinton (acknowledging, as one must, that while of no substance, it helped damage her in the eyes of the general public. If evidence, truth, and justification of no consideration, anything goes.)

3. So how do we resolve the "purely?" business? I recommend the thought experiment that I posted on Facebook on 25 January. There, I suggested the following hypothetical oath to be taken (and followed) by all senators before voting on the two articles of impeachment. The text of my hypothetical oath:

"I swear (or affirm) that the decision I make today is the same decision I would make if the president in question would have been Barack Obama, Bill Clinton, or any other Democrat. I have not been moved by partisan favor or any motive other than to uphold and defend the Constitution of the United States of America, so help me God."

This, I maintain, is the standard by which we should judge each senator's final vote. "It's the standard that I want to be applied to all presidents, Democrat, Republican, Socialist, or Libertarian" each vote is saying. And then we the voters must judge their decision with whether it comports with our understanding of the Constitution and the rule of law.

And in some way, this is what each senator is doing because the precedent set by this decision will affect future presidents and senators. If it's okay for Trump, it's okay for the next Democrat president, too. Since Trump's defense has moved from "I didn't do that" to "Anything that I do is okay, including using my power contrary to the law [he did break the law with his action, but it's not a part of the criminal code]. It's lawful if I deem my reelection to be in the national interest--which of course it is!" (An eerie echo of Nixon's claim that "if the president did it, then it's not against the law.") So, yes, even if Trump stays in office (as we knew he likely would), the repercussions of this vote will echo for years to come. In some ways, impeachment law, especially the standard of "High Crimes and misdemeanors" may be usefully compared to the common law of negligence; the definition (of "negligence" or "High Crimes and misdemeanors") is broad and decision-makers (judges, jurors, or the Senate) must apply the concept on a case-by-case basis. Therefore, a precedent flows from each decision, although it doesn't necessarily bind the next decision-making occasion.

4. The assertion that "this impeachment is purely politically motivated," is a form of the ad hominem argument. Now your rhetoric or composition teacher may have taught you that this is a logical fallacy. It is, but then logic is a formal system, not an infallible guide to discerning human behavior. The ad hominem argument seeks to avoid the facts of the case by concentrating on the teller. In the law, we routinely make ad hominem arguments by impeaching (raising doubts about) the credibility of a witness. Indeed, every plaintiff and defendant in a case is biased and at least implicitly subject to impeachment. Each party maintains that his or her position provides a true account of the facts of the case and comports with the standard of law; therefore, judgment should be rendered in the party's favor. Other witnesses, especially expert witnesses, are impeached by asking who's paying them (most experts are paid for their "time"). The expert will claim that his or her opinions are based on sound science and nothing else. The astute cross-examiner will point out the expert testifies almost exclusively for plaintiffs (or defendants). It's then left to the judge or jury to sort out who's credible. So how should the final decision-maker (the judge or jury) sort out conflicting testimony given the often inherent bias of most witnesses who testify?

Here, as an example, is what a judge in a criminal case in Iowa tells a jury about how to address these issues:

100.7 Credibility Of Witnesses.  

Decide the facts from the evidence. Consider the evidence using your observations, common sense and experience. Try to reconcile any conflicts in the evidence; but if you cannot, accept the evidence you find more believable. 

In determining the facts, you may have to decide what testimony you believe. You may believe all, part or none of any witness's testimony. 

Whether the State has met its burden of proof does not depend upon the number of witnesses it has called or upon the number of exhibits it has offered, but instead upon the nature and quality of the evidence presented. 

There are many factors which you may consider in deciding what testimony to believe, for example: 

1. Whether the testimony is reasonable and consistent with other evidence you believe.
2. Whether a witness has made inconsistent statements.
3. The witness's appearance, conduct, age, intelligence, memory and knowledge of the facts.
4. The witness's interest in the trial, their motive, candor, bias and prejudice.

In other words, consider all of the evidence, not just the background of the witnesses. Foolproof? Hardly, we're dealing with humans here, but this typical instruction provides a standard that you and I can use to judge the case of the impeachment of Donald John Trump (for we will ultimately judge this president and these senators when we enter the voting booth).

5. Conclusion

So to say that "this impeachment is purely politically motivated" provides us with no meaningful information and stands naked as an argument against impeachment. This simple assertion has no facts to clothe it. This failure to mount an argument upon facts and the constitutional text and precedents comports with the tactics of the Republicans in Congress, who, as we near the end of the impeachment, have left not even a fig leaf to cover Trump's shame. The defense, in the hands of the famous criminal defense lawyer, Alan Dershowitz, has disposed of any need for a fig leaf of facts that would cover-up Trump's abuse of power. According to Dershowitz, if the president wants to be re-elected, he can deem that purpose as in the national interest and thereby manipulate public funds and seek foreign involvement in our elections as he desires. Well, if standing against this conclusion and the facts (no longer seriously in dispute) that support a finding for removal is "purely political," then sign me on.

sng
31 Jan. 2020

David Frum: Good Conservative?

As a former Bush speechwriter, I never expected to like David Frum. I guess we all have our prejudices, and one of mine is George W. Bush. However, this article by Frum in the the NYT Magazine yesterday really struck me as some very good advice. He caught me with the opening truth of his first paragraph: the Democrats won in 2008 because of the economy, and the Republicans won in 2010 because of the economy. It's really that simple. Beyond that, he recognizes the value of the welfare state (picking a fine G.K. Chesterton saying along the way to makes his point); he talks about the need for Republicans (and Democrats) to take off their ideological blinders, and most importantly, he shared this insight about populism that I think really captures a great deal about our current (and much of our past) politics. About the populist divide, he writes:

American populism has almost always concentrated its anger against the educated rather than the wealthy. So much so that you might describe contemporary American politics as a class struggle between those with more education than money against those with more money than education: Jon Stewart’s America versus Bill O’Reilly’s, Barack Obama versus Sarah Palin.

Digging back in memory, this fits with theories of Richard Hofstadter and perhaps Robert Wiebe, whose works I read as an undergraduate, or shortly after. The Tea Party phenomena has been the most interesting and scary item to watch of late. Intellectually, it's incoherent, as Frum recognizes, but it captures feelings, and feelings are much, much stronger than ideas. In thinking about our recent Iowa Supreme Court election vote, I was struck by the attitude of resentment expressed more than the anti-gay aspect. VanderPlats didn't do any overt gay-bashing, he couched his argument in terms of "elites" and "activist judges" "re-writing the Constitution". This is the real problem. The problem of crowds, the uneducated, the demos, the mob, and so on. When do we move from a democracy to a tyranny of the many? The Greeks, like Aristotle and Plato, understood the downside of democracy, and as I learn more, I gain a greater appreciation of their concerns (although I still don't buy any alternative).

Getting back to Frum, it's a really thoughtful piece. Here! Here! to more conservatives like him.

Statement from Ousted Iowa Supreme Court Justices

The following (except for the very last line)is the press release by the ousted Iowa Supreme Court justices. A very thoughtful and appropriate response that bears repeating:

November 3, 2010
The following public statement was issued by Justice David Baker, Justice Michael Streit and Chief Justice Marsha Ternus.

Des Moines, November 3, 2010— It has been our great privilege to serve the people of Iowa as justices on the Iowa Supreme Court. Throughout our judicial service, we have endeavored to fulfill our duty to Iowans by always adhering to the rule of law, making decisions fairly and impartially according to law, and faithfully upholding the constitution.

We thank all of the Iowans who voted to retain judges around the state for another term. Your support shows that many of our citizens value fair and impartial courts. We also want to acknowledge and thank all the Iowans, from across the political spectrum and from different walks of life, who worked tirelessly over the past few months to defend Iowa's high-caliber court system against an unprecedented attack funded by out-of-state special interest groups.
Iowa's merit selection system helps ensure that our judges base their decisions on the law and the Constitution and nothing else. Ultimately, however, the preservation of our fair and impartial courts will require more than the integrity and fortitude of individual judges; it will require the fervent and steadfast support of the people.

To which I say "Amen!"

Iowa Judicial System Under Attack

The following is a piece that I wrote for our local paper. They haven't seen fit to print it (yet?), but, hey, what's a blog for but to serve as our electronic street corner (and perhaps as effective, but if you've read this far . . . .). Anyway, my thoughts written earlier this month:

Failed Republican gubernatorial candidate Bob Vander Plaats has turned his attention this fall from running for governor to leading a campaign to radically change our judicial system. In doing so, he’s enlisted the aid of Newt Gingrich and a couple of hundred thousand dollars in out-of-state money. The motive behind the movement spearheaded by Vander Plaats is the Iowa Supreme court’s unanimous decision in Varnum v. Brien. Varnum rules that denying the right of marriage to gays and lesbians in Iowa violates the equal protection clause of the Iowa Constitution. Vander Plaats and his supporters want to express their dissatisfaction and to intimidate any future court decisions that fail to support their agenda. The intend to accomplish this by voting against retaining the three Iowa Supreme Court justices who happen to be up for a retention vote this year.
Even if one disagrees with extending constitutional rights to gays and lesbians and wants to join Vander Plaats and his supporters in seeking to overturn the decision, there is a political remedy. Those seeking to overturn this right can work to convince the Iowa legislature and Iowa voters to amend our Constitution and adopt a provision that exempts gays and lesbians from equal protection of the laws governing marriage. To date, the Iowa legislature has refused to tamper with provisions governing this fundamental right.
If a majority votes against retaining the three Supreme Court justices on the ballot this fall, it will be the first time since our current system of judicial selection began in 1962 that a Supreme Court justice is removed from office by a vote. If voted out, the three up for a retention votes, Chief Justice Ternus and Justices Streit and Baker, will have been chosen at random for retribution, since all of the members of the Court joined in the Varnum v. Brien decision. These three justices just happen to be the ones on the ballot this fall by way of a regular rotation.
What will it mean for justice in Iowa if a majority of voters remove any of these justices from office? The first conclusion certain to be drawn is that social conservatives dominate Iowa politics. However, more worrisome will be the conclusion that out-of-state money can come to Iowa to buy elections and judges. Republican gubernatorial candidate Terry Branstad, who appointed two of the justices that voted in favor of the Varnum decision during his earlier tenure as governor, proposes a different fundamental change to our current system. Branstad now wants the power to appoint all judges directly with the approval of the state senate. Branstad’s proposal would take the initial screening of candidates out of the hands of the non-partisan judicial nominating committees that provide the governor with two or three names from which to choose to fill a judgeship. Whether a Republican or a Democrat sits in the governor’s office, under the Branstad plan, judicial appointments will more often reflect repayment of political favors and adherence to party doctrine, something that our current systems tends to avoid.
Having practiced in Iowa from 1979 (with a brief stint in Illinois), I can report that taken as a whole, our judicial system and judicial selection system works about as well as one can hope in our democracy. In this assessment I’m not alone, as the U.S. Chamber of Commerce rates Iowa as the fifth best judicial system in the Union. The system is not perfect, nor are our judges infallible (the proof being that they sometimes rule against me and my clients), but taken as a whole, the voters of Iowa would be making a terrible decision and setting a terrible precedent if they vote to remove the three Supreme Court justices who are up for retention this fall. The real issue isn’t the propriety of a single ruling, but the ability of the judicial system to stand outside the political tides and to make decisions that may not prove popular. We alter such a system only to the peril of our liberties.

The Iowa Judicial System

The following is an email that I sent to the Iowa Justice Association list serve. This is the organization of plaintiff's lawyers in Iowa. The subject is the effort by Bob VanderPlats and lots of outside money to oust three Iowa Supreme Court justices this year on the retention vote because they joined in the unanimous Varnum decision that held the Iowa ban on gay marriage violated the equal protection clause. My thoughts in general on this issue and our method of judicial selection in Iowa.

Readers,
In thinking about our upcoming retention vote and the implicit--and perhaps explicit--decision that we have to make about our current judicial system, I think that we need to keep in mind some important points:
1. Judges, human beings that they are (well, for the most part), make mistakes and have numerous foibles, and I'm talking about the better ones. Yet, we must look at our judicial selection and retention system as Churchill looked at democracy: the worst form of government, except when compared to all of the others. Compared to others, we coming out looking very good.
2. Judges, like jurors, walk into their positions with loads of pre-existing ideas, political, legal, philosophical, etc. We try to persuade them, but that can be mighty tough sometimes if they walk in with an attitude on an issue. That's why, I think, that this group tends to rejoice more when someone with a plaintiff's background gets appointed to the bench than when experienced defense counsel goes up. Not always, but usually. So, yes, judges do have imperfections, idiosyncrasies, and beliefs that create a great variety of perspectives. Given this, one of the amazing aspects of Varnum was the unanimity of the decision.
3. Those who claim that decision like Varnum should have been made in the political sphere have a strong argument. As a supporter of the conclusion of Varnum, I would have preferred that it would have been made by the legislature and not the courts. However, sometimes the courts have to go against the tide; maybe you like it (desegregation, one man [sic], one vote, abortion rights) or sometimes you don't (due process cases, striking down the New Deal legislation, striking down campaign finance legislation)—all depending on your political point of view, of course. Whether one likes an "activist" court seems to go along with whether one likes the outcome. It's gone both ways over time, sometimes left, sometimes right. But the courts have to do what they have to do--if really forced to. (I have a hard time believing all of the Iowa Supreme Court wanted to get out front on an issue like Varnum, as I don't think that they're naive about the potential public response.)
4. If any of the current Supreme Court justices are voted out, it will have a chilling effect on all future court decisions and allow electoral politics--often at its most base--to infect our judicial system. Those who disapprove of the Varnum decision do have political remedies, and these they should pursue.
5. This really isn't about individual justices (as it should be), but it's about attempting to control the judiciary in a new & very harmful way. It's like picking three soldiers at random to be shot in order booster the morale of the troops. This motivational tool isn't one that we should take up. It's a crude tool even with politicians, but they know that it comes with the job; it shouldn't be so for judges.

Enough for now. I think that this is an important issue for all lawyers and all citizens in Iowa. Thanks for allowing me to share. And vote.