As we move toward impeachment, Team Trump seems to have settled on Trump’s “legal defenses.” They were neatly laid out by the House GOP in Mueller Judiciary Committee hearing.
Here’s what to expect (and what we should do).
Each of the defenses put forward by the House GOP rests on lies and distortion of the laws. The problem for the Dems will be prosecuting a case when a portion of the population has abandoned truth.
Defense #1: A person innocent of the underlying crime can’t obstruct justice.
Defense #1 goes like this: Mueller found no conspiracy. Trump knew he was innocent, so his attempts to hamper the investigation understandably came from his frustration with a baseless investigation.
Defense #1 distorts the law. A person can have other corrupt motives for obstructing, such as:
- Preventing personal embarassment. Mueller Report, v.2, 178,
- Protecting non-criminal personal interests, p. 157, and
- Hiding criminal liability that falls into “gray area.”
Because the investigation ended up with so many of Trump’s friends and staff convicted of crimes—including his personal lawyer who implicated Trump in an election finance crime—it seems to me we can add that “conspiracy with Russians” wasn’t the only crime under investigation.
Defense #2: “The Deep State defense”
This one goes like this: The entire investigation arose from lies and “baseless gossip,” so the entire investigation was corrupt, and all the findings are suspect. This is where the GOP talks about Fusion GPS, the “unverified” Steele Dossier and the “angry Democrats” who want to bring down Trump.
The first problem is that this defense distorts the rules of evidence governing when tainted evidence (for example, evidence gotten from an illegal search) is admissible in court.
See the problem: Distorting the law is easy. Distortions are catchy and fit into soundbites.
Explaining Fourth Amendment jurisprudence and when evidence is inadmissible is complicated and will not make for theatrical hearings.
Liars and distorters have an advantage: They can make the story compelling.
The Deep State defense resonates on the far right.
“Deep state” is code for what the GOP has been trying for decades to destroy: regulatory agencies, because those regulations stop white men from cheating and grabbing what they want.
When Collins told Mueller during the hearing that he wants to make sure the FBI never spies on another American again, take it literally: They don’t want the FBI to exist.
Defense #3: “We Are Victims,” defense.
This one goes like this: The investigation was driven by people who hate Trump and his party. Look at Strzok, Page, Steele, and more!
This overlaps with Defense #2 (The Deep State is out to get Trump) and in a sense, it’s true. Regulatory agencies are about rule of law. The GOP prefers Trump (what Max Weber calls a Charismatic Leader) to Rule of Law.
“Deep State (FBI/ Mueller) v. Trump” is another way to say “Rule of Law v. Leadership Cult.”
As part of the Victimization defense, the House GOP advanced the theory that Trump was the victim of a Russian disinformation plot. According to this theory, the Russians planted the false information in the Steele Dossier to undermine confidence in an elected president.
Of course it makes no sense. It doesn’t have to. It just needs emotional resonance, If it has emotional resonance, Trump’s supporters will gleefully spread the lie.
Part of “victimization” is “whataboutism”: “What about when Clinton (or Obama) did it?”
If Clinton (or Obama) did it, going after Trump is purely political.
Defense #4: The “Unfair Cloud” defense
This one goes like this: If there’s no indictment, a prosecutor mustn’t divulge negative information about the person. Without an indictment and an opportunity to defend himself in court, a “cloud” hangs over the uncharged person’s head.
According to this theory, by not charging Trump and not exonerating him, Mueller violated the ethics governing prosecutors and shifted the burden of proof to the accused. The problem of course, is that GOP also claims that a sitting president cannot be indicted.
But, remember, none of these defenses have to be true or logical. If I were coordinating a bot campaign to destroy democracy, here’s what I would do:
First I would make sure that Democrats have unrealistic expectations of what can come out of impeachment hearings, like this:
“We must stop Trump’s lawbreaking! Impeach him now!” or “Once hearings begin, the people will see the truth!”
Remember, this is not the Nixon era. Most American in the Nixon era got their news from networks. (I remember Walter Cronkite)
Also the GOP in Nixon’s era had not yet fully evolved into an authoritarian party.
Next, I’d have my bots saying things like:
- “It’s all the Democrats’ fault for not fighting harder!” and
- “the Democrats are as corrupt as the Republicans,” and
- “It’s all useless! There’s nothing that can be done! We’re all doomed!”
So what do we do?
- We lower our expectations for what impeachment can accomplish,
- we prepare ourselves for the onslaught of lies,
- we prepare the public for the onslaught of lies,
- we keep in mind WHY the GOP is engaging in such destructive and desperate measures:
From Harvard Prof. Levitsky: The GOP base is shrinking, so their medium and long-term prospects are not good. For example:
- In 1994, white Christians were 74% of the electorate.
- In 2014, they were 57%.
- By 2024, they’re projected to be less than 50%.
Levitsky says to treat Trump’s lawbreaking like an earthquake. The way to respond to an earthquake is to move quickly to strengthen the weakened structures.
A young, diverse population owns the future.
So our task is to take steps to strengthen the democratic institutions that now being battered. The more we can strengthen them now, during the shaking, the less rebuilding later.
