In the bizarro world we’re living in, here is the one thing I find most surprising—and, I think, slightly encouraging. Remember when Mike Mulvaney said, in words or substance, “Yeah, we extorted Ukraine. Get over it”? Well, Mulvaney said it, but everyone else, from Trump on down, seems scared shitless of just admitting the truth and saying “So what?”
Indeed, we have it on good authority that a group of four towering geniuses—they would be Kellyanne Conway, Jared Kushner, Mick Mulvaney, Mr. Bogus Legal Opinion Pat Cipollone—have decided that they want the Senate to hold an extended trial:
Two attendees said that the White House wants the Senate to hold a trial of some length and not immediately dismiss any articles of impeachment with the GOP’s majority, as some Republicans have suggested.
The White House and Trump’s GOP allies decided instead “they want some kind of factual affirmative defense on the merits,” said one attendee.
Alternative Narratives and the Beyond a Reasonable Doubt Argument
Many criminal trials follow this pattern: the defendant does not take the stand. The judge instructs the jury that no adverse presumption should follow from the defendant’s failure to take the stand. The facts are incomplete and somewhat ambiguous. (The facts are ALWAYS incomplete and somewhat ambiguous.) Defense counsel argues that some of the evidence may look pretty bad, but that, nonetheless, there is an alternative explanation of the facts. And, defense counsel strenuously claims, that alternative explanation creates at least a reasonable doubt about whether the defendant shot Cock Robin, or whether it was someone else.
But if Republicans want to take this tack with the Trump defense, there are two big problems.
One, it’s Trump’s own fault that the facts are incomplete, because he has ordered key witnesses not to testify, he has ordered the relevant documents to be withheld, and he has intimidated the witnesses who have come forward.
And the jury sure as hell can draw an adverse inference from that.
Two, the doubts that Trump’s defenders are advancing are not reasonable doubts: they are instead unreasonable doubts.
No wonder the four towering legal geniuses would like to see “some kind of factual affirmative defense on the merits.”
The Main Takeaway
Progressives continue to fear the mighty power of Trump’s bullshit. But Trump’s defenders are afraid Trump’s bullshit-to-sense ratio may have reached a critically dangerous level.
Isn’t it nice to see such a confirmation of human reason?