How fast things disappear on Google! Some Republican (Newt Gingrich, I believe), tweeted that the fact that the Democrats in the impeachment are represented by Adam Schiff and Jerry Nadler while President Trump is represented by Ken Starr and Alan Dershowitz says all we need to know. To which our side says, "Yep!"
I have been listening to condensed versions on Lawfare's Goat Rodeo in the belief that listening to or reading the whole thing. It has its drawbacks. In particular, it lacked the "heads on pikes" comments that excited such controversy. Still, there is enough to comment on, and I want to fully comment on what the Democrats had to say before moving on to the Republican side.
Actually, the trial began with debate between both sides about what the rules would be, so we got to hear from Team Trump, but not from either Starr or Dershowitz. Instead we heard from Jay Sekulow and Pat Cipollone. They weren't bad, exactly. Certainly, they refrained from Devin Nunes' substance-free ranting and open paranoia. But I found their arguments either too abstract to mean much, or somewhat disingenuous. In particular, they raised the example of Obama Attorney General Eric Holder, who was held in contempt for failure to produce documents and favorable cited various Democrats condemning the action. The cases are not comparable. Holder turned over some 7,600 pages of documents, but claimed executive privilege over another 1,300. Trump, by contrast, refused to turn over any documents whatever. Sekulow and Cipollone argued that investigators could go to court to order their release. House Managers argued that the documents could be held up in litigation for years, and that the Trump Administration was even arguing in another case that courts had no jurisdiction to hear such disputes.
Next came three days of the Democrats making their case. It was rather mind-numbing, but here are my comments:
First point, I didn't find it as riveting as the the witness testimony before the House. The witnesses were giving new information. House Managers were merely setting forth what the witnesses had already said. It got redundant fast.
Next point: Adam Schiff is very good. And by good, I mostly mean clear, concrete, and specific. That may say as much about my opinion as about any of the speakers, but there it is. In my view, the case is best made by avoiding generalities like "corrupt," or "cheat" or "foreign interference." Schiff was very good at explaining the particular acts that were done and what in particular was wrong with them. For instance, when various Democrats kept saying that Trump was trying to argue that Ukraine, not Russia, interfered in the election, Schiff clarified. By "interference," Trump did not mean hostile editorials or Facebook posts. He specifically asked the Ukrainians to find the Democratic server which was hacked.
Next: No one else, either the other Democrats or Sekulow or Cipollone was as good. In particular, Val Demings really needs to use less exclamation points. There was nothing really wrong with what she said, but I found the over-dramatic tone detracted from her content.
I did think the Democrats did a generally good job on debunking some of Team Trump's arguments. They pointed out in detail why Biden's threat to withhold aid unless the Ukrainians removed their prosecutor was not comparable to Trump threatening to withhold aid unless the Ukrainians investigated the Bidens, i.e., the difference between acting on behalf of US interests and on personal interests. They also explained that the prosecutor Biden had removed was not, in fact, investigating Burisma, and that replacing him would make Biden's son more, not less, likely to be held to scrutiny.
And the Democrats did an excellent job on explaining just how unprecedented and just how dangerous Trump's absolute stonewalling of the investigation was, and of appealing to Senate Republicans' institutional interests in maintaining oversight over the executive branch.
I did think there were some things the Democrats could have emphasized more. (Unless they did and it was cut out). I would have liked for them to have discussed just how common it is for retired politicians, family members of politicians, and other bigwigs to serve on corporate boards of directors and do almost nothing except be on the masthead. I would have liked them to point out that the practice, though perhaps sleazy, is perfectly legal and could be abolished only by telling corporations how to choose their directors, and are we sure we want to do that. I would have liked them to go into more detail about Trump's complete lack of interest in corruption in any country except Ukraine, and in any instance in Ukraine except Burisma. And I really wish they had commented on and played Fiona Hill's comments that Ukraine was by no means the only country whose leaders made unflattering comments about candidate Trump, yet none of the others were such targets of Trump's ire.
And, incidentally, I think the Democrats may have set a trap for themselves with a distinct contradiction. In insisting that Russia, not Ukraine "interfered" in the 2016 election, Democrats clearly set a high bar for "interference," i.e., hacking and disclosure. Yet in saying the Trump wanted Ukraine to "interfere" by announcing an investigation of the Bidens, they were setting a much lower bar. That is a distinct weakness for Republicans to exploit.
And I have a further comment on the "heads on pikes" comment that was cut out. Persuasive argument, we are told, is supposed to appeal at three levels -- logos, ethos, and pathos. Logos is an appeal with facts and logic. Ethos is a moral appeal to do the right thing. And pathos is an emotional appeal. The "heads on pikes" argument was largely an appeal to pathos, with some ethos put in. And in today's polarized atmosphere, that is hard to do.
When I say that Schiff was very "good," meaning concrete and specific, I basically mean he was very good at logos. Events, rules, precedents, comparisons, historical analogies and the like are logos. The core of a legal case is (supposed to be) based in logos. And particularly in these polarized times, logos sets up what we can at least hope to be a common core of facts beyond challenge.
Ethos is more difficult. I think Schiff and other Democrats made a fair start at it when they argued that all members of Congress, of both branches and both parties, will sometimes need documents from the executive branch, either for information in making legislative decisions, or to hold some President accountable. Arguing about keeping foreign powers from meddling in our domestic politics I think would strike some chords. But arguments about the need for elections to be fair and that seeking an investigation of the Bidens was "cheating" is unlikely to have the same appeal to Republicans as it does to Democrats and for an obvious reason. It is asking Republicans to make it easier for Democrats to win, not a very appealing argument!
But pathos is the hardest of all. Because being loyal to one's team and standing up for its leader is a very powerful piece of pathos for Republicans. And any attempt to excite passion is going to be an attempt to excite passion against Trump. And "heads on pikes" remark or not, that is going to meet with immense resistance.
All of which leads to one final point. Regardless of how good a case the Democrats made, it may well be swept away as soon as the Republicans start talking. Brett Kavenaugh is a classic example. First Christine Blasey Ford spoke up and her testimony was powerful -- at the level of logos, ethos, and pathos alike. People all across the political spectrum were impressed by her testimony, and it briefly appeared that it might have an impact. But as soon as Kavenaugh spoke up with his blatantly partisan rant, any possible impact was lost. Kavenaugh was appealing to pathos, and only to pathos --- in particular, to partisan passion. It was a very polarizing speech, inspiring enthusiasm by Republicans and outrage by Democrats. And, since Republicans were in the majority, it won the day.
I fully expect something similar from Donald Trumps lawyers.
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