“Bad but Not Impeachably Bad”? A Clarifying Hypothetical

Bill and Monica

Best headline for today: GORDON SONDLAND THROWS TRUMP, GIULIANI UNDER THE BUS (BACKS UP, DOES IT AGAIN). And in the Washington Post, Amber Blake explains the eight ways in which Gordon Sondland’s testimony torpedoes Republican defenses of Trump. I won’t repeat their points, but will give my take on where we stand today.

A Clarifying Hypothetical

Let me pose a hypothetical, contrary to fact. Assume that the evidence, take as a whole showed the following: Trump, directly or through intermediaries, conveyed this message to the Ukrainians: “You can have your military aid, as appropriated by Congress, in full and on time. But you also want a meeting with me in the Oval Office. And, to get that meeting, your president must first publicly announce that he is investigating (1) my batshit crazy theory about purloined Democratic servers, hidden away in Ukraine, and (2) allegations that Joe Biden took money from corrupt Ukrainian oligarchs. You do not have to take any followup steps, but you do have to announce publicly that you intend to investigate these charges, which you must claim to take seriously. If you do that, you will get your White House meeting.” Assume further that the military aid does flow, on time and in full.

Bad but Not Impeachably Bad?

In recent days, we have been schooled in the technicalities of the law of bribery. And, with the benefit of this technical analysis, we can see that, in my hypothetical, one might indeed discern all the elements of bribery. But would it be easy to argue—persuasively, to a skeptical public—that my hypothetical is quite bad enough to warrant impeachment?

Sure, it’s different from Clinton’s perjuring himself about how often he unzipped his pants. Sure, my hypothetical describes conduct that may be felonious, but so was Clinton’s conduct.

It’s the Military Aid, Stupid

No, I submit that what pushes the Trump situation over the impeachability line is the callous indifference to dying Ukrainians—the withholding of military aid for no good reason.

Republicans have four choices:

  • they can keep on telling a fairy tale about the military aid,
  • they can make the bad-but-not-impeachably-bad argument,
  • they can defend the withholding of military aid to extort bogus investigations as morally right and proper, or
  • they can give the conclusory answer, “We think no impeachable offenses were committed” and then just shut the hell up, manfully refusing any further explanation or rational debate.

All the choices are bad for them. At the end of the day, I think the last choice—make a conclusory statement, shut up, and refuse all further discussion—is the least bad from their perspective, so that’s where they will probably go in the end.

But right now, they want to keep on telling their fairy tale.

Three Questions to Answer

Republicans have three questions to answer:

  1. Why was the military aid put on hold, in the first place?
  2. Why was it finally released? And,
  3. Why was it released when it was released—two days after the scandal broke in public?

As to the first question: Republicans want to answer that it was put on hold because a general concern of Ukrainian corruption. But the July 25 “transcript” that Trump himself released is inconsistent with that fable.

As to the second question: some Republicans have floated the myth that people knowledgeable about Ukraine talked Trump around to the view that Zelinsky was a “good guy.” But there is no evidence at all to support the claim.

And if there were any such evidence, it would be found amount the thousands of documents that Trump is hiding from the House. As Miss Nancy said, if Trump has some exculpatory evidence, cough it up.

As to the third question, I have not even heard a pathetic attempt to explain the timing of the release, or to rebut the obvious conclusion that Trump released the aid on September 11 because he was caught.

Four Problems with the “Bad but not Impeachable” Defense

four problems

I have said—and lots of pundits and talking heads have said—that the position Trump defenders will be forced, in the end, to rely upon is the same defense that prevailed in the Clinton impeachment: it was bad, it was wrong, but it was not an impeachable defense.

All the other defenses are bullshit, but this one is not clearly bullshit, because the standard of what constitutes an “impeachable offense” is political and subjective. Therefore: to assert the bad-but-not-impeachable defense is to invite the listener to make a subjective judgment,  not to demand that the listener check his or her rationality at the front door.

And, as I said, it’s the defense that worked for Clinton, so why not trot it out for Trump?

All that said, it seems to me that the “bad but not impeachable” defense is highly, highly problematic.

As a preliminary matter, remember who the audience is. It’s not the hard core Trump cultists. The hard core cultists will be happy with—and they will cheerfully regurgitate—any nonsense they are provided. These are the folks who’re shelling out for the “Get Over It” T-shirts.

No, the audience are those just to the left of the hard core cultists. Maybe they like the fetuses and the judges and the tax cuts, but they’re not so sure about Trump himself. These are the people Trump needs if he is going to survive.

The First Problem

Maybe you can’t think 17 steps ahead in the chess game, but you really need to think two or three steps ahead. With that thought in mind, the first problem with the “bad but not impeachable” argument is that invites a further discussion about

  • exactly what Trump did or did not do, and
  • just how bad his actions were.

Believe me, Trump and his enablers really, really do not benefit from anything resembling a rational discussion of these matters.

The Second Problem

If you’re going to argue bad-but-not-impeachable, then you really need an explanation for

  • why Trump withheld the military aid in the first place, and, maybe more importantly,
  • why he relented in September.

You really need to show that his decision to release the aid was occasioned by something other than the fact that he got caught—an inference that follows from the close chronological relation between the whistleblower complaint and the release of the money.

To illustrate: if Trump initially withheld the aid for impure motives, but, some time during September, took a stroll down the Road to Damascus, suddenly realized the error of his ways, and released the money, then maybe you can plausibly argue bad-but-not-impeachable.

Or, there is Gym Jordan’s fairly tale about how Trump released the money because his advisors advised him that Zelinsky is really a good guy, not a corrupt politician.

But, failing believe in some such fanciful, unsubstantiated narrative, it looks like the Trumpster released the aid the moment his hand was caught in the cookie jar. Looks like the Trumpster himself thought his own conduct was imminently impeachable.

The Third Problem

The third problem is that bad-but-not-impeachable argument might conceivably persuade some of the folks just to the left of the Trump cultists, but it creates severe congnitive dissonance for the cultists themselves, who think that everything Trump does is perfect.

The Fourth Problem

The fourth problem is that Trump himself has not embraced the bad-but-not-impeachable argument—and may denounce as a traitor anyone who puts it forward.