They Are Arguing that Trump’s Partially Successful Obstruction of Congress Immunizes Him from Accountability for His Abuse of Power

That is the gist of the argument that the House case is weak because of the lack of direct evidence of Trump’s words, when that “weakness” came about through Trump’s obstruction of testimony from the witnesses.

Their argument is akin to that of the man Abraham Lincoln’s story. He killed his parents and pleaded for mercy as an orphan.

A Republican Senator’s Alternatives, or, Scylla Looks Pretty Bad, Guess I’ll Take Charybdis

Scylla and Charybdis

In other words, to avoid being eaten by Dear Leader Scylla, I guess I’ll just risk sinking in the Charybdis whirlpool of public disapproval.

That’s how the punditariat are reading all 53 Republican senators, and their predictions may well come true. But, actually, they do have some other choices—choices that may look bad, but are not unreasonable, if you step back and consider things rationally.

One, they could resign.

Two, they could announce that they will not run in the next election.

Three, for some of them, it might be feasible just to change parties. With the Democrats supporting them, along with ten percent of the Republicans, they might actually win the next election.

Four, they could just do the right thing, and hope for the best. I would argue, that’s far from an unreasonable choice, even for a cynical politician. Wargame it out. Whatever you do, Trump will be acquitted by the Senate. Trump will immediately begin to manifest far more depravity than he has shown to date. By the fall of 2020, with Trump’s increasing depravity, things are going to look pretty ugly for Trump and his bootlickers. And you are going to look like goddamn Nostradamus and Mother Theresa, rolled into one.

Not exactly a lead pipe cinch winner for you. But I have seen far, far worse bets.

So, dear Republican senators, here’s some really good advice:

Adam Schiff’s Closing Argument This Evening

The Joker

Where I come from, the point of an oral argument in court is not, mainly, to convince those who already agree with you: it is, instead, to convince (at least some of) those who disagree with you that you might be (at least partly) right after all.

I caught Adam Schiff’s one-hour prime time speech this evening. Many things might be said, but let me say only of them. The big difference between what Schiff said tonight and what the Republican team will say tomorrow lies in this: Schiff looked the opposition in the eye, implicitly expressed respect for their reason and fairness, and appeared to be actually trying to persuade some of them.

By contrast, beginning tomorrow, Dear Leader’s team will put on a show intended only to persuade the already persuaded, and to give the middle finger to everyone else. Trump’s case is really bad, and would present a problem for any defense lawyer. That said, I could gin up some arguments on his behalf that wouldn’t actually insult your intelligence. But the arguments we are going to hear will be stupid arguments intended only to appeal to stupid people.

A little search of the Google machine this evening shows that Schiff’s wicked strategy—actually trying to persuade the opposition with facts, logic, and appeals to morality, as distinguished from jumping up and down and whooping and hollering—is driving the wingnuts into a frenzy of fear and loathing.

With any luck, the exercise will give the Hogwarts sorting hat process a real kick in the pants. With any luck, white people with college degrees willing to support Brand Republican will become scarcer and scarcer.

Meanwhile, Gabe Sherman reports that all is not going well in Trumpworld. Delusional Don is not doing himself any good:

As Donald Trump’s defense team prepares to make its first arguments on the floor of the Senate on Saturday, top Republicans are increasingly worried that Trump’s lawyers are woefully unprepared to counter Democrats’ meticulous, fact-based case for removing Trump. In the president’s circle there’s not full-blown panic—but there’s worry. “A lot of Republicans think the Democrats have done a very good job,” a prominent Republican who is close to Trump’s legal team told me. “It’s been a lot better than we expected.” Florida congressman Matt Gaetz, one of Trump’s fiercest House allies, seemingly spoke for many when he blasted Trump’s lawyers, telling Politico this week that the Trump team’s presentation was worse than “an eighth-grade book report.”

Trump himself is making the situation worse, both with his rages—he set a 142-tweet record on Wednesday—and his insistence that Republicans buy in fully to his defense strategy. “It’s really not helpful,” the Republican close to the legal team said. “Trump is mad at Republicans that they aren’t saying his call with [Volodymyr] Zelensky was perfect. He really thinks his call was perfect. It wasn’t.”

Removing Trump from office remains a distant outcome, but the dynamics of the Senate trial are clearly shifting in directions that are dangerous for the president. A new Emerson poll released on Thursday showed 51% of registered voters support removal, an uptick of two points. A Reuters poll published on Wednesday showed nearly three quarters of Americans want to hear new witnesses. The prospect that former national security adviser John Bolton would testify is alarming Republicans. (Trump and Bolton’s relationship is badly damaged. A day after Bolton left the administration in September, Trump raged that Bolton was “a liar and a leaker,” according to a person briefed on the conversation.) “If witnesses start coming and Bolton is negative, it could win some Republicans,” a source close to Trump told me. “Senators really dislike Trump and are tired of having to go to the mat for him on crazy, batshit stuff,” the source said. “We know if senators took a secret vote today, he’d be removed.”

Trump’s circle is waking up to the notion that impeachment is a serious drag on his campaign. “Impeachment is drowning out all his accomplishments,” a Republican insider said. But impeachment is only one aspect of the problem. Inside the campaign there is an intensifying debate between Trump and his advisers about whether the campaign should run on base-incitement issues like immigration or a moderate-appealing message about the economy that could win back suburban voters. “They’re all trying to get Trump to run on general election issues and not get caught up in side issues,” a source close to the campaign said. “But Trump is focused on other stuff and going after [Joe] Biden.”

The Bottom Line

Even if you are a bad person determined to do bad thing, it turns out that not knowing the difference between right and wrong is a fairly serious handicap in your struggle to achieve your evil ends.

Who knew?

A Call from Pollyanna

on the phone

Pollyanna called to report that her crying jag, reported in my last post, did not last too long. She reminded me of a few things:

Sixty-five percent of Republicans and “lean Republican” people say they “trust” Fox News. That means that 35 percent of them do not trust Fox News.

Now, a lot of the untrusting 35 percent are in on the joke—delighted that they have found a way to fool the boobies into voting their way.

BUT, ten percent of Republicans think Trump should be removed from office. And, mirabile dictu, that percentage is up—from a low of 7.8 percent in recent days.

The inference—which might or might not be an accurate inference—is that about two percent of Republicans are capable of rational thought. Bet you didn’t know that.

Meanwhile, over in the Senate, while the fat lady has not yet sung, everyone is predicting that all 53 Republican senators will tie themselves hand and foot to Dear Leader. That would include six senators, up for reelection this very year, with approval ratings currently under 45 percent: “Susan Collins (Maine), Joni Ernst (Iowa), Thom Tillis (N.C.), Martha McSally (Ariz.), Cory Gardner (Colo.) and John Cornyn (Tex.).” I wonder how the ten percent of Republican voters who want to shitcan Trump will feel about voting for a senator who chooses to lick his boots, long and hard, and then to praise the smell and flavor of the fine Corinthian leather.

Finally, Pollyanna–clearly under the impression that I might have lost a step or two in my old age–that winning or losing elections is typically a matter of the small difference between two large numbers.

This Morning’s Read of the Day: It’s Enough to Make Pollyanna Weep

polyanna weeps

Ezra Klein, Why Democrats Still Have to Appeal to the Center, but Republicans Don’t: Polarization has changed the two parties — just not in the same way.

Young Ezra possesses remarkable wisdom. The first part of the piece elucidates the headline, and is very much worth reading. This is how he concludes:

The alternative to democratizing America is scarier than mere polarization: it is, eventually, a legitimacy crisis that could threaten the very foundation of our political system. By 2040, 70 percent of Americans will live in the 15 largest states. That means 70 percent of America will be represented by only thirty senators, while the other 30 percent of America will be represented by seventy senators.

It is not difficult to envision an America where Republicans consistently win the presidency despite rarely winning the popular vote, where they typically control both the House and the Senate despite rarely winning more votes than the Democrats, where their dominance of the Supreme Court is unquestioned and where all this power is used to buttress a system of partisan gerrymandering, pro-corporate campaign finance laws, strict voter identification requirements and anti-union legislation that further weakens Democrats’ electoral performance. Down that road lies true political crisis.

In the meantime, though, it’s important to recognize the truth about our system: both parties have polarized, but in very different ways, and with very different consequences for American politics.

Yes, and You Know What Else it is?

Heaven for the plutocrats while they can make it last. The French Revolution when the dam breaks.

And, by the way, if they can make it last in the short run by reelecting Trump, Trump is going to screw up so badly that the revolution is going to come a lot faster than they think.

Pollyanna happy

Two Helpful Hints on Winning Trial Strategies, Both Involving the Hee Haw Test

I feel a need to begin by defending the effort to think reasonably in this unreasonable age.

I didn’t watch the impeachment today. I was down at the car place, waiting in the sitting room while they were working over the old buggy. The teevee was tuned to something other than politics—probably a good thing, all things considered. So I treated myself to the first part of Jill Lepore’s book, These Truths, wherein the author scours American history for a reliable answer to the question, Are humans capable of rational self-government, or are they forever doomed to rule by autocrats?

I look forward to learning her final answer, but in the meantime, I still see a role for reason and analytical thinking. And so, with that thought in mind, I would like to offer

Two Helpful Hints on a Winning Trial Strategy

Helpful Hint Number One

Where the facts and the applicable rules of law and sound public policy show that your adversary is guilty as sin, force the other side to try to defend itself by relying on an absurd abstract legal/policy argument—an argument so ridiculous that it fails the Hee Haw Test.

Thus far, we are in good shape on this account.

Jonathan Turley, Where the Trump defense goes too far

The House Republicans’ expert witness on constitutional law lays out how Alan Dershowitz has his head wedged deeply within his ass:

It is a view that is at odds with history and the purpose of the Constitution. While Framers did not want terms such as “maladministration” in the standard as dangerously too broad, they often spoke of impeachable conduct in noncriminal terms, such as Justice Joseph Story referring to “public wrongs,” “great offenses against the Constitution” or acts of “malfeasance or abuse of office.” Alexander Hamilton spoke of impeachment trials as addressing “the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” …

In this impeachment, the House has decided to go forward on the narrowest articles with the thinnest record of a presidential impeachment in history. However, many senators may be legitimately leery of buying what the White House is selling with its categorical approach [to the abstract question of what is impeachable conduct]. There is a vast array of harmful and corrupt acts that a president can commit outside of the criminal code.

Also putting the lie to current Trumpian constitutional analysis: none other than William P. Barr, his very own self:

Charlie Savage, Barr Once Contradicted Trump’s Claim That Abuse of Power Is Not Impeachable: In a memo for the Trump team during the Russia investigation, the attorney general wrote that presidents who misuse their authority are subject to impeachment.

Helpful Hint Number Two

Do not, yourself, in the heat of overzealous advocacy, adopt an argument that also flunks the Hee Haw Test.

Such an unwise argument would be the claim that Congress, not the judiciary, is the body with the sole power to decide claims of executive privilege, in the face of alleged executive misconduct.

Or the claim that the President may be impeached for a non-frivolous legal claim of executive privilege.

I have detected, among some on our side, the overtures to argumentation along these lines. But I believe Shifty Schiff and his merry band of brethren and sistern are smart enough not to go down that rabbithole.

Yes, the courts do indeed have the power to umpire claims of executive privilege. And no, the assertion of non-frivolous claims in court should not be the basis for impeachment—however much you may understand the claims to be “dilatory” and made “in bad faith.”

The crucial point here is that Trump declared, and then acted on, an intent to oppose any and all oversight, whether or not he had non-frivolous arguments against congressional inquiry.

The defense would love to have a big frigging argument about something other  than what happened in in this case. It is a time-honored gambit. It’s one I faced in the last big case of my legal career. Took us a while to whup ’em, but whup ’em, we did.


I see that I have some Ukrainian readership this evening. Hang in there, guys.

Please Pardon my French, But Each Day and Each Hour the Trump Legal Defense Looks More and More Like a Giant Clusterfuck


I rest my case on the last few posts.

That said, I make no predictions. Maybe 51 senators will just do the three monkeys routine, vote the acquit, and the whole thing will be over. But I don’t think so.

So, I hope you have laid in an ample supply of beef and popcorn.

While You Wait for Impeachment Day, Here’s Some Musical Entertainment

Trump’s defense puts me in mind of the legal argument advanced in Bob Marley’s “I Shot the Sheriff.” So sit back and listen.

(I shot the sheriff
But I didn’t shoot no deputy, oh no! Oh!
I shot the sheriff
But I didn’t shoot no deputy, ooh, ooh, oo-ooh.)
Yeah! All around in my home town,
They’re tryin’ to track me down;
They say they want to bring me in guilty
For the killing of a deputy,
For the life of a deputy.
But I say:

Oh, now, now. Oh!
(I shot the sheriff.) – the sheriff.
(But I swear it was in self defense.)
Oh, no! (Ooh, ooh, oo-oh) Yeah!
I say: I shot the sheriff – Oh, Lord! –
(And they say it is a capital offence.)
Yeah! (Ooh, ooh, oo-oh) Yeah!

Sheriff John Brown always hated me,
For what, I don’t know:
Every time I plant a seed,
He said kill it before it grow –
He said kill them before they grow.
And so:

Read it in the news:
(I shot the sheriff.) Oh, Lord!
(But I swear it was in self defense.)
Where was the deputy? (Oo-oo-oh)
I say: I shot the sheriff,
But I swear it was in self defense. (Oo-oh) Yeah!

Freedom came my way one day
And I started out of town, yeah!
All of a sudden I saw sheriff John Brown
Aiming to shoot me down,
So I shot – I shot – I shot him down and I say:
If I am guilty I will pay.

(I shot the sheriff,)
But I say (But I didn’t shoot no deputy),
I didn’t shoot no deputy (oh, no-oh), oh no!
(I shot the sheriff.) I did!
But I didn’t shoot no deputy. Oh! (Oo-oo-ooh)

Reflexes had got the better of me
And what is to be must be:
Every day the bucket a-go a well,
One day the bottom a-go drop out,
One day the bottom a-go drop out.
I say:

I – I – I – I shot the sheriff.
Lord, I didn’t shot the deputy. Yeah!
I – I (shot the sheriff) –
But I didn’t shoot no deputy, yeah! No, yeah!