I realize that impeachment proceedings are political events. So it is hardly shocking that they end up to be exercises of Kabuki Theater - high on spectacle, method acting, and excessive drama, while serving up low content, substance, clarity, or logic. Be this as it may, it seems to me that arguments - for or against conviction - should make some sense. Shouldn’t it be the case that the performers of this drama care about how it looks to the audience? As far as I can tell. there are three three main lines of defense:
The process is unconstitutional, so acquit.
The process has been unjustly applied to the president and not others, so acquit.
There’s no direct link between Trump’s words and the insurrection, so acquit.
Of these, the third - the “no direct linkage” argument - is at least defensible on its face. I think it is a weak argument but it at least honestly takes on the substance of the House Managers’ case, which is almost entirely constructed around the claim that there is an obvious line from Trump’s actions to the insurrection itself. A lot has been written on this argument, for and against. I’ve argued for its cogency in part in my prior post on radicalization so I won’t repeat it here. Instead, I want to focus here on the other two arguments, since they strike me as not honest, and nonsensical.
The Process is Not Constitutional
This argument appears to be the preferred route for most GOP senators who will vote to acquit. Now, let me be straightforward here - I’m not taking a position on the actual constitutionality of the process. So for the purposes of this post, I’m neutral. Instead, I’m interested in it as an argument for acquittal. Politically, of course I understand it. It’s the obvious play - it allows a senator to evade the direct merits of the case and simply stick to a case on process. You know the old saying from Carl Sandberg:
If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell!
Clearly, most GOP senators are not addressing the substance of the case, and so are arguing the law and/or pounding the table. But again, I get the politics - a process argument allows one to not need to commit to the legitimacy of what Trump did, but still vote to acquit and so satisfy one’s base voters at home. But remember, arguments should meet at least a minimum good sense test before they are employed publicly. Let’s think this one through. Maybe I’m missing something.
The Senate voted the process constitutional (Rand Paul’s proposal) by a vote of 56 - 44. Now, I presume that Senators are not bound by this vote, so they are not forced to consider the process constitutional because the Senate vote declared it to be such This makes the vote a waste of time - in fact it’s not even clear what the vote means, since a Senate vote can’t make a process constitutional - but we can ignore all that. Let's just say that the 44 senators voting "it's unconstitutional" plan to stick by that decision.
If those 44 GOP senators think the process is unconstitutional, it seems to me that the only reasonable result is that they refuse to vote. As far as I can see, voting either to "acquit" or "convict" are tacit agreements about the validity of the process, since those two verdicts flow from the process itself. So it seems to me that if you want to argue that the process is unconstitutional, you should remove yourself from the process by either (a) voting “present” or (b) by simply not showing up for the vote at all.
Now, my suspicion is that no Senator will take option (b) because that would mean one less number in the total denominator that determines what the votes required to meet the 2/3 conviction threshold would be. So, for instance, if 20 GOP senators refused to vote, 2/3 of the remaining 80 would be needed to convict - which means 52 conviction votes would be needed. That would backfire. But option (a), the option to “vote present,” doesn't have that problem. As Article I, sec 3 says (my italics):
The Senate shall have the sole Power to try all Impeachments…[but] no person shall be convicted without the Concurrence of two-thirds of the Members present.
So as long as all members are present, you need 2/3 of 100 senators to convict. They don’t need to vote to be counted in the total. So this would mean you’d need 17 GOP senators to convict, which isn’t going to happen. So why not vote present? At least that option is coherent, and arguable (even if it may be false) and follows from their claims. Obvious political answer: because GOP voters demand an acquittal vote. The problem is: you can’t demand the process is invalid AND vote to acquit, since this implies that the process is valid. But incoherence is not a barrier for those members, it seems.
Jury Nullification
A handful of senators, such as my own Roy Blunt, are running with this one approach. When asked about his stance on the conviction vote, he said,
Well, you know, you have a summer where people all over the country are doing similar kinds of things. I don't know what the other side will show from Seattle and Portland and other places, but you're going to see similar kinds of tragedies there as well.
Maybe I'm misconstruing Sen. Blunt's point, but it appears to me that he (and others arguing a similar point) is essentially suggesting that they will vote to acquit based on reasoning that straddles the line between “whataboutism” and arguing for straight forward jury nullification. The “whataboutism” argument is clear enough - “well, if Trump is guilty of incitement, what about all the incitement in Seattle and Portland over the summer?” Whataboutism isn’t a defense; it’s an admission of guilt presented alongside a complaint that others have done so as well.
If you think about it, however, whataboutism in the context of the vote to acquit only makes sense if it is being employed as one’s reasoning to engage in jury nullification. The process is defined here:
Jury nullification happens when a jury returns a verdict of Not Guilty despite its belief that the defendant is guilty of the violation charged. Why would a jury do this? Don’t jurors swear an oath to uphold the law? Yes, but oftentimes it is a tool juries can use to set aside a law they believe is immoral or wrongly applied to the accused.
Now, this would be a highly bizarre position for a GOP senator (or senators) to take, given that jury nullification not only presumes guilt but is moreover taken to be a direct rejection of “law and order” - in the service of making an objection to some other perceived injustice not relevant to the case at hand. So, Blunt's not saying Trump isn't guilty - he's implying (indirectly) that he is guilty, but since the law has not been equitably applied, he will nullify the law in protest and vote to acquit.
So in the end, it seems to me that we’re left with one weak - but intellectual honest - defense, one not being employed by many senators, and two completely incoherent strategies that most of them seem happy to deploy. Again, I may be missing something here. If so, reader - let me know what it is! Until then, I’m left wondering why many GOP senators don't feel the need to publicly deploy arguments that at least pass a minimum sniff test of coherence.
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