It’s Not a Boxing Match

9 mins read
Artwork by Dawn Hudson.

The letter the White House sent to Congress announcing Trump’s intent to obstruct the impeachment inquiry is here.

It’s a political letter, attempting to frame impeachment on Trump’s terms. The Democrats should not let Trump control how impeachment is framed.

I’ll start by debunking a few of the letter’s bogus legal points. I can’t debunk them all. The letter uses the Firehose of Falsehood strategy: Keep everyone busy playing whack-a-lie.

But let’s take the claim that the impeachment is “unauthorized” and “unconstitutional.”

The claim is that the inquiry is “unauthorized” because the past impeachment inquiries started with a full house vote.

The Constitution doesn’t mandate procedure.

Each House of Congress creates its own rules and procedures, and can change them at will. 

The claim that the Democrats are trying to overturn an election is also silly: If Trump is removed, Pence becomes president, not Hillary Clinton.

The legal error that permeates the letter is the bogus claim that Trump has the same due process rights as a criminal defendant.

An impeachment proceeding is not a criminal proceeding. 

The Constitution makes clear that the only “punishment” that can result has to do with the ability to hold office. Art 1, sec. 3:

Criminal defendants are entitled to certain due process rights because at stake are constitutional rights of liberty, property, and in capital cases, life.

In impeachment, what is at stake is not being president any more. Being president isn’t a constitutionally protected right.

The letter is basically an announcement that the White House will obstruct the proceedings (which is nothing new; Trump has been obstructing inquiries against him all along)

This is ironic because obstruction is an impeachable offense, and this is an impeachment inquiry.

The obstruction is partly a stall tactic—but the tactic won’t work. The House strategy is to fold the obstruction into the Articles of Impeachment. 

The House is also using the obstruction to help in the Court of Public Opinion. How? Another word for “obstruction” is “coverup.” Everyone knows that innocent people don’t hide evidence.

To understand the House strategy you have to understand that they don’t actually need Sondland’s testimony. 

This message exchange says it all:

If Sondland doesn’t want to explain the message, we can draw the obvious inferences. 

BUT if the House doesn’t try to get his testimony, their case falls apart when Sondland says, “They never gave me a chance to explain.”

So they have to try hard to get his testimony. Then they say:

  • The text message speaks for itself and
  • Why did he try so hard to duck the chance to explain?

It also looks to me like the House is litigating the obstruction—not because they need to compel testimony—but because court rulings in their favor strengthens their case.

Court rulings mean that a 3rd branch of government agrees with Congress. When two branches of government line up against the third, the third loses.

Trump sees this. He has a plan of his own, which is evident in the letter.

First he wants to fire up his base. 

In 1974 some Republicans felt frustrated that Nixon resigned, among them, Roger Stone and Paul Manafort. They wanted Nixon to keep fighting. Now that Trump has Fox and right wing media, he has a base filled with Stones and Manaforts.

Bill O’Reilly explains that the modern GOP loves that Trump doesn’t stop fighting.

Remember that impeachment doesn’t mean removal from office. Removal requires 2/3 vote in the Senate. I think it’s safe to say that Trump expects the Senate to acquit him.

The letter tells me that strategy is to fire up his base by fighting back, and when the Senate acquits, declare himself exonerated.

The letter is also an attempt to frame the impeachment process as a boxing match, like this: Trump and the Congressional democrats are in a ring throwing punches; whoever throws the strongest punches wins.

This is the framing Trump wants. The Democrats must avoid it.

The winner is not the side that hits hardest or makes the most impressive demonstration of force.

The winner is the side that saves democracy in America.

Let’s be clear: Only one side wants to save democracy, by which I mean: 

Democracy isn’t compatible with white supremacy or the kind of Putin-style oligarchy that the current Trump-FOX-GOP is trying to create. The current GOP is anti-Democratic.

Trump wants to provoke the Democrats into a boxing match because that is how to destroy democracy.

Harvard Prof. Steven Levitsky explains why here. (If you’re ready to grab a pitchfork, please listen to his lecture.) He’s also one of the authors of this book:

For a summary and analysis of Levitsky’s position, click here.

If both sides start throwing punches, the institutions take a beating AND the Democrats start looking like Republicans.

This helps the GOP because it helps batter the institutions, and it feeds their cynical “us v. them” narrative, that goes like this:

  • All politicians are corrupt.
  • Trump is a corrupt liar. 
  • The other side are also corrupt liars. 
  • So let’s stick with OUR corrupt liar. 

For an example of Republican cynicism (combined with distortion of truth), see:

Cynicism, by the way, helps kill democracy because, if you believe all politicians are equally corrupt, it doesn’t matter who you vote for or even whether you bother voting.

This includes a question about whether McDougall is relevant, which I take is this: McDougall was jailed for contempt in the Clinton impeachment hearing. So shouldn’t Democrats do the same?

The answer is no, because the statement: “The GOP did it, so we should too,” is to abandon principles and become like them.

Scholars agree that impeachment is for abuse of power and betrayal of the public trust. See chapters 2 – 4 of Sunstein’s book:

Given the nature of Clinton’s wrongdoing, the Clinton impeachment was a political witch hunt and ran contrary to the Constitution. So don’t look to what happened in the Clinton impeachment as an example of what Democrats should do now.

Right now, a part of the far right wing is fired up for actual Civil War. That means we’re sitting on a powder keg. To combine my metaphors, it’s not a good idea to have a boxing match on a powder keg.

Pelosi clearly doesn’t want a boxing match. She wants a proceeding worthy of the founders. Her statement is here.

Popular opinion is turning toward impeachment and against Trump.

The Fox viewership is aging; the GOP demographics are shrinking.

The Democratic base is expanding. 

The future belongs to the Democrats. This is theirs to lose.

Originally posted on Teri Kanefield’s blog. Re-posted with permission.

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Teri has written novels, short stories, nonfiction for both young readers and adults, and lots of legal briefs. She is currently working on a book on disinformation to be published by Macmillan Publishers. Her political commentary has appeared on the NBC Think Blog and Her articles and essays have appeared in publications as diverse as Education Week, Slate Magazine, and Scope Magazine. Her short fiction has appeared in the American Literary View, The Iowa Review, and others. For twelve years she maintained a private appellate law practice limited to representing indigents on appeal from adverse rulings. She believes with the ACLU that when the rights of society's most vulnerable members are denied, everybody's rights are imperiled. She also believe with John Updike that the purpose of literature is to expand our sympathies. Teri lives with her family on the beautiful central coast in California.

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