Monday morning brings us the second round of House Judiciary Committee hearings to determine whether President Donald Trump has committed impeachable acts. Last week’s hearing with constitutional experts laid out the history of the impeachment process and the somewhat ambiguous criteria. Now we will hear “opening arguments” from three lawyers.
Representing the Democrats on the Judiciary Committee will be Barry Berke, whom you will recognize as the attorney who got former Trump campaign manager Corey Lewandowski to admit that he often lies to the media, among other things, in an earlier hearing. You may also remember Daniel Goldman, the former federal prosecutor from the House Intelligence Committee who skillfully questioned various witnesses during the hearings into the Ukraine bribery scandal. And the Republicans have chosen Stephen R. Castor, the longtime House GOP staff investigator and lawyer who led the questioning at the House Intelligence Committee hearings.
Unlike impeachment hearings in the past, President Trump has refused to participate directly, preferring instead to whine and complain that he isn’t being allowed to defend himself. (Which is a bald-faced lie.) Apparently, Trump has now accepted that impeachment is inevitable and is planning to produce his own spectacle in the Senate trial, where it is expected that he will beat the rap. The jury will include 53 Republicans and it would take 67 votes to convict, assuming all are present. It’s possible to imagine up to two or three GOP senators voting to convict, which would certainly be a blow to Trump’s ego. But it’s more likely they’ll all hang together, with Sen. Susan Collins of Maine issuing one of her trademark statements of “concern” or “regret.”
We don’t know exactly what the Democrats’ plan to present as possible articles of impeachment, but Berke’s presence alongside Goldman has led some observers to wonder if they haven’t decided to include the obstruction of justice charges from the second volume of the Mueller report. I am on record being very much in favor of that, since I believe it illustrates the pattern of Trump’s behavior and also the fact that Trump’s obstructive behavior in the Mueller probe was a precursor to what he has done with Ukraine. What binds all that together is the fact that Trump welcomed Russian interference on his behalf before he took office. Then, despite a monumental scandal that has lasted throughout his presidency, he went ahead and did it again, this time deploying his power as president to bribe a foreign country into doing his bidding.
It’s hard to predict how the House Republicans will approach these hearings. The House Intelligence Minority Report and the earlier GOP staff report prepared by Reps. Devin Nunes, R-Calif., Jim Jordan, R-Ohio, and Michael McCaul, R-Texas — ranking members of the Intelligence, Oversight and Foreign Affairs committees, respectively — have suggested slightly different strategies.
Susan Simpson of Just Security analyzed the staff report and concluded that it made
no attempt to construct a coherent statement of facts, nor to offer its own version of events as an alternative to the one set forth in the majority’s report. The point of the minority report is not to offer an explanation of what really happened, but to make what really happened seem unknowable.
That is an interesting approach, isn’t it? But it requires a fair amount of lying anyway, as Simpson’s analysis shows.
It’s more likely that the Republicans will follow the outline of the Intelligence Committee minority report and reprise their performances in the hearings so far. That means they will ignore all the evidence that proves Trump’s guilt and spin a bunch of overlapping or contradictory conspiracy theories instead. As Ryan Broderick of BuzzFeed points out, this strategy seeks to create “not just a counternarrative but a completely separate reality” with which to feed Facebook posts and Fox News clips. Basically the idea is to use the hearings to promote the conspiracy theories for a broader audience and give them the imprimatur of respectability from the hallowed halls of the U.S. Congress.
Quinta Jurecic and Jacob Schulz of the Lawfare blog have written a very interesting and slightly unnerving analysis of how that works. They point out that Democrats on the Intelligence Committee mostly opted not to address all the conspiracy-mongering that occurred during their hearings in their report to the Judiciary Committee, and for good reason. Aside from all the confusion these conspiracies and false narratives create, studies show that even rebutting such theories tends to give them credibility. For instance, Jurecic and Schultz write:
Research suggests that the more a claim is repeated, the more likely people are to believe it, even in the context of a debunking — so stating, “The DNC server is not in Ukraine” could lead readers to have more, rather than fewer, doubts over whether the server actually is in Ukraine, much less whether there is a physical server at all. (This has proven difficult to navigate for media outlets struggling to report on the president’s falsehoods.)
We will know soon enough if House Republicans are planning to take advantage of these phenomena. It would be hugely surprising if they don’t. The big question now is whether or not the Senate will do the same.
Politico reported last week that the White House is plotting impeachment trial strategy with Republican senators. Senators are supposed to serve as jurors so that might seem odd, but since Trump and his House allies are demanding that Senate Republicans allow the president’s lawyers to put Joe Biden on trial, and air their conspiracy theories on every network, it makes some sense.
Sen. Lindsey Graham, R-S.C., who chairs the Senate Judiciary Committee, has said he wants to investigate Hunter Biden but told House members last week that he wouldn’t go along with subpoenaing House Intelligence chair Adam Schiff and Speaker Nancy Pelosi, as Trump has demanded. (But when has Graham ever disappointed Trump?) Supposedly, Senate Majority Leader Mitch McConnell, R-Ky., and Minority Leader Chuck Schumer, D-N.Y., are working on rules for the impeachment trial. I wouldn’t bet on the president’s lawyers adhering to them.
Trump is no student of sociology, but he has a very finely honed sense of how to bullshit the public and he’s a natural at disinformation and propaganda. He’s been doing it his whole life. He knows the value in using a Senate trial to push his conspiracy theories into the mainstream and seems to instinctively understand that the more exposure they get, the more “real” they become. All the Democrats can do is try to get the truth out while avoiding giving too much oxygen to the other side’s alternate reality. It won’t be easy.
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