Asses in a Sling

ass in a sling

I have made this point before, but in our breathless attention to the will-there-or-won’t-there-be-witnesses drama, we tend to lose sight of the principle. Rule 56 of the Federal Rules of Civil Procedure doesn’t literally apply to Senate impeachment trials, but logic and justice require the application of its spirit. The rule says, “The court shall grand summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” (It continues, “The court should state on the record the reasons for granting or denying the motion.”)

By the way, a “material” fact is a fact that is important enough to affect the outcome of a case. It’s the opposite of a trivial or an unimportant fact.

And I don’t have to tell you the difference between a “genuine” dispute and a bogus dispute.

In consequence, Republicans can comfortably vote to call no further witnesses if they are willing to entertain the truth of every allegation in the articles of impeachment, yet find some abstract reason why Trump’s conduct was not impeachable.

If that is what they do, then we can have no legitimate quarrel with their failure to call witnesses—only a quarrel with whatever bullshit abstraction they employ to whitewash the facts.

If they cannot find such an abstract proposition on which to hang their hats, and yet still refuse to call witnesses, then they not only spit in the face of 75 percent of the country, they also spit in the face of due process. Because there is no justice where the judge just dismisses the case on a whim, without calling witnesses, despite genuine dispute over facts that are material to the outcome of the case.

Here is where the Republican senators each find that his or her ass is in a sling.

Alan Dershowitz has offered such a proposition. A friend just sent an email summarizing his formulation of this evening thusly: “He said, every politician running for office credibly considers what they do to get elected to be in the public interest.  Ergo, anything they do to achieve that end is in the public interest.  Hence, Trump was acting in the public interest, and not for his private gain.”

Employing Dershowitz’s formula, nothing a president does could meet the standard of impeachability.

The Republican senators’ asses are in a sling because the Dershowitz formula is ludicrous. Yet, at this stage in the proceedings, no one on their side has offered a more appealing formula—a more limited proposition that would still absolve Trump.

So, to avoid looking like a bunch of jackasses, they have got to come up with that more appealing legal rationale

  • on their own,
  • over the next few days,
  • in the face of almost unbearable pressure.

Ladies and gentlemen, this will be a challenge, for at least two reasons.

The first reason is that a lot of the Republican senators are not very smart.

The second reason is that they are trying to resolve an issue—the the debate over what exactly are “high crimes and misdemeanors”–whose proper resolution has, for well more than two centuries, eluded consensus by a great many folks who are a great deal smarter than they are.

And they are trying to resolve that important policy argument in just a few days, while doing a lot of other things at the same time, where many of them lack the intellectual equipment to get the job done, even in more propitious circumstances.

There is every reason to think they will botch the job, and that right badly.

And may I say, it couldn’t happen to a nicer bunch of folks.