Above, impeachment managers Adam Schiff, Jerrold Nadler, Hakeem Jeffries. (AP Photo)
By Eric Felten, RealClearInvestigations
January 21, 2020
President Trump must be removed from office “immediately,” Democratic impeachment managers argue in a new brief, because he poses “an immediate threat to the nation and the rule of law.”
Given that the House majority sat on its impeachment referral for almost a month before taking it to the Senate, the sudden urgency may come as a surprise – though not to students of argument and language. The Democratic case against Trump detailed in the much more extensive House impeachment report shows how language can be used to compensate for shortcomings in the evidence. A careful reading of the report shows that its authors – not unlike those who wrote the Mueller report to suggest guilt they couldn’t prove – are convinced that thin allegations can be bulked up if repeated often enough.
The repetitions that immediately stand out in the House report are the adjectives that dismiss the president’s defense well before that defense is made. Assertions or questions involving Ukraine made by Trump or his attorney Rudy Giuliani are typically prefaced with the words “debunked” or “discredited,” and usually followed by the characterization “conspiracy theory.” “Debunked” appears 22 times in the report; “discredited” 15 times; “baseless” 16 times and “conspiracy” 56 times. A few of those uses are by Republicans – Giuliani is quoted as saying the impeachment inquiry is “baseless” – but the vast majority are by Democrats to dismiss Trump’s claims.
For example, arguing that Trump had committed high crimes and misdemeanors, the report accuses the president of pushing a “discredited conspiracy theory alleging Ukrainian interference in the 2016 United States Presidential election.” (Editor’s note: Phrases are italicized for emphasis here and throughout.)
In describing the trip Giuliani planned to take to Ukraine last May, the impeachment report might have stated in a straightforward manner that he wanted to pursue information about alleged Ukrainian interference in the 2016 election. Instead, the authors wrote that the president’s lawyer was pursuing “debunked conspiracy theories about alleged Ukrainian interference in the 2016 election.” In the same way, the report says that Giuliani was hoping to chase down not just claims about the Bidens but “discredited claims about the Bidens.”
But what are the Ukraine interference theories that have supposedly been discredited? Yes, there are speculations that are “unverified” (to use a term that was often repeated when the Steele dossier was in vogue). But for a Ukraine question that has not been discredited, the president and his allies often point to a January 2017 article in Politico that said Kiev officials were “scrambling to make amends with the president-elect after quietly working to boost Clinton.” Politico reported that Ukrainian government officials “disseminated documents implicating a top Trump aide [Paul Manafort] in corruption and suggested they were investigating the matter, only to back away after the election. And they helped Clinton’s allies [Democratic National Committee contractor Alexandra Chalupa] research damaging information on Trump and his advisers.”
The majority report not only neglects to provide any evidence that debunks or discredits this reporting, it ignores it altogether.
Questions about former Vice President Joe Biden and his son Hunter – who was reportedly paid $50,000 a month to serve on the board of a Ukrainian gas company while his father served as the U.S. government’s point man for Ukraine policy -- get the same treatment.
According to the impeachment report, over breakfast “Mr. Giuliani and Ambassador [Kurt] Volker discussed the discredited allegations against former Vice President Biden relating to Ukraine.” Here’s how Volker recounted this in his testimony to House investigators: “I said to Rudy in that breakfast the first time we sat down to talk that it is simply not credible to me that Joe Biden would be influenced in his duties as vice president by money or things for his son or anything like that. I’ve known him a long time, he’s a person of integrity, and that’s not credible.”
Volker is not claiming to have any direct knowledge of Biden’s thoughts or actions. Instead, he is offering ad hominem praise – Biden couldn’t have acted corruptly because he’s a good guy. This, of course, is a mirror image of the Democrats’ posture toward Trump, a posture made explicit in the report: “a President who takes concrete steps toward engaging in impeachable conduct is not entitled to any benefit of the doubt.”
“Baseless” is another of the adjectives authors of the report put to use in extensive question-begging. They might have stated that in his call with Ukrainian President Volodymyr Zelensky, Trump made two demands for investigations. Instead they say the president made “two demands for baseless investigations.” The word is also put to work accusing Trump of giving “currency to a baseless allegation that Vice President Biden wanted to remove the corrupt prosecutor because he was investigating Burisma, a company on whose board the Vice President’s son sat at the time.”
The use of “baseless” in the report is so reflexive as to be redundant. Ambassador Marie Yovanovitch, for example, is said to have been the target of a “baseless smear campaign.” The very notion of a “smear campaign” is that it is untrue. If the allegations weren’t “baseless” they wouldn’t be a “smear.”
This is not to say the impeachment report never tries to justify its dismissive adjectives.
In footnote 620, House Democrats at last offer an argument rather than a mere assertion for dismissing accusations that the Bidens engaged in corruption involving Hunter’s well-paid seat on the board of Burisma. The argument goes like this: Viktor Shokin was the general prosecutor that Vice President Biden demanded be fired. Footnote 620 asserts that Shokin “failed to prosecute corruption in Ukraine.” Thus, “his removal made it more — not less — likely that Ukrainian authorities might investigate any allegations of wrongdoing at Burisma
Equally telling are the report’s handling of claims made by the prosecutor who succeeded Shokin as prosecutor general, Yuri Lutsenko. Initially, Lutsenko was not to be trusted because he had “perpetuated this allegation of wrongdoing by the Bidens.” Now he is a truthteller because he “has since recanted and stated that there is no evidence of wrongdoing by Vice President Biden or his son.” The footnote concludes: “For these reasons, the allegations that Vice President Biden inappropriately pressured Ukraine to remove Mr. Shokin in order to protect his son are baseless.”
The accusation against the vice president is “baseless” because the man who had been making the allegation has since recanted and now says there in “no evidence” to support what he had been saying. It is a stretch to argue that an accusation is “baseless” because one witness has recanted. At the very least, one would want to know why he recanted. Was he finally free, for some compelling reason, to tell the truth? Or perhaps someone pressured him to change his story? Maybe he plays fast and loose with the facts, lying when convenient.
Any and all of these possibilities would have to be explored and answered before one could make any declaration as definitive as that accusations against the Bidens are “baseless.” The last possibility – that Lutsenko is a practiced liar – would be the most damaging to the argument that accusations against the Bidens are “baseless.” How inconvenient, then, that elsewhere in the impeachment report, Lutsenko is declared unreliable: “Ambassador Yovanovitch described Mr. Lutsenko as an ‘opportunist’ who ‘will ally himself, sometimes simultaneously … with whatever political or economic forces he believes will suit his interests best at the time.’”
The use of the word “baseless” isn’t just reserved for shutting down discussion and debate over disputed facts. It extends to dismissing legal claims as well: Trump’s lawyers, according to the impeachment report, make “baseless arguments.”
Other repetitions, beyond “baseless,” “discredited,” and “debunked,” are employed in the impeachment report’s jurisprudence. Working overtime is the Constitution’s statement, in Article I, Section 2, Clause 5, that the House of Representatives “shall have the sole power of impeachment.” While invoking this phrase more than 60 times, the report seeks to make “sole” a synonym for carte blanche, arguing that “sole power” means a power unchecked by other branches. That’s the authors’ ace and they play it time and again.
White House Consel Pat Cipollone called on Congress to afford the president basic procedural safeguards in the impeachment investigation, including “the right to see all evidence, to present evidence, to call witnesses, to have counsel present at all hearings, to cross-examine all witnesses, to make objections ... and to respond to evidence and testimony.” No go.
Citing its “sole Power of Impeachment,” the House dismissed Trump’s call for “due process,” claiming that “none of these procedures are ‘due’ to him under the Constitution.”
Let’s accept for the sake of argument that the Constitution does grant the House “sole” impeachment powers, defined as powers that stand unchecked and unquestionable by any other branch of government. Such a jurisprudential quirk stands at odds with the Constitution’s basic structure and spirit of checks and balances. The House is claiming that its sole power of impeachment is an absolute power, and such claims are not attractive: Given the political nature of impeachment, an unseemly grasping at power could well color the House’s entire case.
'Where's the Crime?'
The case has another political weakness, one that the constitutional students of the House have labored furiously to shore up. Trump’s supporters have asked repeatedly, “But where’s the crime?” The report responds that the president doesn’t need to have committed a crime to be impeached because “impeachment proceedings are not criminal in character.”
If there is no crime being alleged, then what is the president’s offense and why is it impeachable? “Offenses against the Constitution are different in kind than offenses against the criminal code,” reads the House impeachment report. “Some crimes, like jaywalking, are not impeachable. Some impeachable offenses, like abuse of power, are not crimes.”
Abuse of power might seem vague and amorphous, but that’s okay when it comes to removing a president. The House report cites more than once the eminent 19th-century Supreme Court Justice Joseph Story, who wrote that impeachable offenses “are of so various and complex a character, so utterly incapable of being defined, or classified, that the task of positive legislation would be impracticable, if it were not almost absurd to attempt it.”
Where can we turn, then, to determine what is and is not (at least other than jaywalking) impeachable? The impeachment report turns once again to the House’s unchallengeable, sole power of impeachment, a power so categorical that it would trump any law Congress might pass in an effort to make clearer the grounds for removing a president from office. “The Constitution vests ‘the sole Power of Impeachment’ in the House,” the report reminds us yet again; “it is therefore doubtful that a statute enacted by one Congress … could bind the House at a later date.”
Even if one accepts the argument that there’s no specifying or cataloguing of impeachable offenses, it would seem that principle creates as much of a problem as it solves for the House impeachment managers. If X is a crime, the managers’ job is to prove that the president committed X; if X is not a crime, the managers must not only prove the president committed X, they have to persuade the Senate – and the public – that X is such an affront to decency and such a threat to the Constitution that it is rightly regarded an impeachable offense. Though the authors of the impeachment report insist that criminal law and impeachment are separate beasts, they grudgingly admit that “the commission of crimes may strengthen a case for removal.”
It may be in an effort to make its accusations have the appearance of criminality otherwise missing that the impeachment report makes up a faux presidential statement. The false quote is in the style of the fabricated transcript read by Adam Schiff and later explained away as a “parody” of Trump’s conversation with Zelensky. “The evidence thus demonstrates that President Trump used the powers of his office to make Ukraine an offer it had no real choice but to accept,” according to the impeachment report: “Help me get re-elected or you will not get the military and security assistance and diplomatic support you desperately need from the United States of America.” But, of course, the president never said any such thing. He never said, “Help me get re-elected,” nor did he condition aid on acquiescence to something he hadn’t said.
One can choose whether to refer to the House impeachment report’s false quote as debunked, discredited, or baseless.