By Paul Rosenberg, Senior Editor
“Democrats brought a gavel to an impeachment gun fight.” That was the headline of a weekend op-ed by Kurt Bardella, a former spokesperson Republican on the House Oversight and Government Reform Committee, who switched parties in 2017. Democrats might have all the facts on their side—as 17 witnesses had previously confirmed — but they were failing miserably at messaging.
Not one of those witnesses contradicted the basic structure of Trump’s scheme to extort a phony investigation of Joe Biden out of Ukraine, illegally withholding military aid to accomplish it—a damning fact record that, thanks to GOP obfuscations, has failed to fully sink in with the public. A Fox News poll showed that only 24 percent of Americans thought such actions were OK, versus 60 percent who said they weren’t. But almost double that number—45 percent—thought that Trump shouldn’t be impeached and removed for it, versus 50 percent who said he should.
The Fox poll doesn’t tell us what’s going on in so many people’s heads, but it does tell us there’s an enormous disconnect—and that Trump’s political survival almost entirely depends upon it. In between those two figures, Fox found support for both articles of impeachment. By 53-38 they agreed that Trump had abused his power and by 48-34 they agreed that he had obstructed Congress. So, the more focus there is on what actually happened, the worse it will be for Trump. Creating a theater of partisan fighting— distracting from the underlying facts—is Trump’s surest line of defense. And no one understands this better than former Republicans like Bardella.
“Every attack line deployed by Republicans can be neutralized by throwing their own words against them,” Bardella wrote — primarily words they used when trying to investigate Obama-era “scandals” (Benghazi, anyone?). Using Republicans own arguments against them may not be a magic bullet, but it does tend to disrupt the tribal messaging strategy Trump and his congressional allies rely on so heavily.
That messaging matters mightily, as hypocritical GOP claims of an unfair process in the House are now being used to justify an actually unfair process in the Senate—one that will keep the public in the dark about the massive weight of evidence against Trump and confused about what’s actually going on. Trump and Senate Majority Leader Mitch McConnell have different visions of how to pull this off as Trump faces impeachment on two counts—Article I: Abuse of Power; soliciting Ukraine’s election interference; and Article II: Obstruction of Congress — directing “the unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House.”
As explained in the House Judiciary Committee’s final report, “Although President Trump’s actions need not rise to the level of a criminal violation to justify impeachment, his conduct here was criminal.” There is a detailed description of two federal crimes involved in abuse of power: bribery and wire fraud. The report also argues that Trump poses a continuing threat if left in office, as “he has shown no remorse or regret, but rather insists that his conduct was ‘perfect’ and continues to engage in misconduct.”
In response, as if to prove this very point, Trump wants to turn the tables with a circus-like Alice in Wonderland trial that goes after Joe and Hunter Biden, continuing the main thrust of the very conduct he’s being impeached for. Trump wants total vindication—as a narcissist always does—and total chaos, which he thrives on. McConnell wants a lightning-quick trial with no new evidence, no chance for anyone to think of anything, and minimal exposure of his members’ venality, with another election so near.
Neither wants a full airing of the facts. There will be no witnesses like acting White House Chief of Staff Mick Mulvaney; former national security adviser John Bolton; and Michael Duffey, a top official at the Office of Management and Budget—all of whom have first-hand knowledge of Trump’s illicit scheme and were on a witness list Senate Minority Leader Charles Schumer included as part of a package of procedural demands for a fair and focused trial.
Trump and McConnell might seem irreconcilably at odds—but both are agreed on some sort of fix. Neither wants what Schumer is asking for, a genuine fair trial, since the facts are so fatal for Trump. So, on Dec. 12, after a meeting with Trump’s lawyers, McConnell proudly announced “There will be no difference between the president’s position and our position in how to handle this,” in an interview with Fox News host Sean Hannity. Trump impeachment advisor Pam Bondi defended this, days later, to Chris Wallace on Fox News Sunday:
“We weren’t given a fair trial in the House at all. It now goes to the Senate and these senators. The president deserves to be heard. We should be working hand-in-hand with them.”
Thus, the actual nature of the fixed trial has yet to be decided, but the rationale is fully baked in advance: Whatever we do is fair, because they were unfair to us. It’s tribal messaging 101. And — as Bardella notes — it’s utter bullshit.
He’s hardly the only former Republican who can’t ignore the hypocrisy. The most recent prominent one is Bryan Garner, Editor in chief of Black’s Law Dictionary and co-author of two books with Antonin Scalia, as well as a memoir of their friendship.
“I’ve always called myself Republican,” Garner tweeted on Dec. 14. “But as of today, I’m switching parties. Over impeachment. The Republican positions aren’t consonant with intellectual honesty. As of today, I’m an Independent.”
Another lifelong Republican to speak out was William Webster, the only man to head both the FBI and the CIA. He didn’t respond to impeachment directly, but to related attacks on the FBI to bolster’s Trump’s false allegations of a deep state witch-hunt — allegations which also absolve Russia of election interference in 2016. In a New York Times op-ed, Webster wrote:
I know firsthand the professionalism of the men and women of the F.B.I. The aspersions cast upon them by the president and my longtime friend, Attorney General William P. Barr, are troubling in the extreme. Calling F.B.I. professionals “scum,” as the president did, is a slur against people who risk their lives to keep us safe. Mr. Barr’s charges of bias within the F.B.I., made without providing any evidence and in direct dispute of the findings of the nonpartisan inspector general, risk inflicting enduring damage on this critically important institution.
Barr’s charges of bias were made to directly undercut the findings of Inspector General Michael Horowitz, who found no political bias motivating the FBI’s opening an investigation of Russian interference into the 2016 election—a finding that directly contradicts one of Trump’s most desperately cherished conspiracy theories. “Don’t look at my crimes, look at the horrible bias of those people investigating me” has been a pillar of Trump’s defense from the very beginning. The more that other Republicans like Barr and House Republican leaders, echo his false accusations, the more they reinforce a tribal warfare frame that prevents the kind of sober fact-finding and deliberation that ought to take place in making such a weighty decision.
Democrats have tried to combat this by keeping their impeachment charges narrowly focused on abuses that threaten our national security, while ignoring a much broader range of constitutional violations, such as Trump’s multiple egregious violations of the Emoluments Clause. In sharp contrast, Ralph Nader and two constitutional scholars, Louis Fisher and Bruce Fein, wrote a letter to Speaker Nancy Pelosi in late November, calling for impeachment on 12 counts. “Several of the counts are per se impeachable and need no more fact-finding,” they wrote. These include:
Defiance of congressional subpoenas and oversight; spending billions of dollars on a southern border wall not appropriated for that purpose; continuing or expanding presidential wars not declared by Congress; exercising line-item veto power; flouting the Emoluments Clause; and, playing prosecutor, judge, jury, and executioner to kill any person on the planet based on secret, unsubstantiated information.
And they added, “Hearings to educate the public about the alarming consequences of such per se violations is imperative to fortify the full constitutional legitimacy of the impeachment charges.” But it’s a bit late to start educating the public now, when Republicans are all in on pushing the partisan warfare frame. Those arguments should have been forcefully advanced from the moment of Trump’s initial violations. Bringing them up now only feeds into the GOP narrative of “Democrats desperately seeking an impeachment rationale” — a narrative most effectively countered with a simple request for all the witnesses to be heard, and all the facts considered.
If Trump is so innocent, what does he have to hide?
That is the question that GOP Senators will have to face in the new year. A mere four defections would make it impossible for Moscow Mitch McConnell to impose his Trump-protecting rules, whatever form they ultimately take. But whether there will even be one defection is anybody’s guess.