Giuliani argued that the manner in which the impeachment investigation is being conducted is “unprecedented, constitutionally questionable, and an affront to American fair play.” Yes. It’s time to talk about fairness. But I want to talk about what’s fair to the American people.
First, though, let’s dispense with the other two arguments. Is this investigation unprecedented? Well, no and yes. Certainly there have been combative impeachment investigations in the past. But this one is only the fourth, and it is certain to be unlike any of the others. If the process is unprecedented, it is because the president’s behavior is unprecedented.
The manner of investigation is constitutionally questionable, Giuliani says. Well, we would all do well to have questions about how one should constitutionally conduct an impeachment. The activity is lightly defined in the Constitution. The expectation was that Congress would gather itself to meet its responsibilities in moments when the country’s political system was under fundamental threat, whether because of illegal activity as defined in the criminal code, or unconstitutional activity as defined by the Constitution and its presidential oath of office. To meet its responsibilities, Congress must use the wealth of experience of our legal and judicial systems to draw out evidence and a pattern of facts, and then to share that evidence and that pattern with the public, as well as its determinations in relationship to them. That is what it is doing. To assess how well Congress is adhering to constitutionality, one needs to pay attention to whether Congress has formulated questions that pertain to constitutional matters and is building processes that permit pertinent fact-finding and litigation of the evidence. Yes, Congress is doing all those things.
Now, let’s talk about fairness to the American people. As the Declaration of Independence puts it, governments are instituted among humankind to secure our basic rights. It also argues that legitimate governments derive their just powers from the consent of the governed. Where do we get that consent? It is delivered by our electoral system. The entire legitimacy of our government, in other words, depends on the integrity of our electoral system.
What’s fair to the American people? Having a chance to vote on candidates who have been reasonably vetted through a campaign process that brings out their strengths and weaknesses, and who have the chance to compete on a playing field that is reasonably fair.
Taking that away is not fair.
Trump has a long history of manufacturing conspiracy theories to undermine the integrity of the electoral system. He was a lead purveyor of the birther conspiracy directed at candidate Barack Obama, a lie that directly affected polling numbers. It was one thing for him to do this as a private citizen, relying only on the resources of his purported fortune to peddle lies and misinformation. It is quite another as president for Trump to direct the vast powers of his office to the project of activating conspiracy theories and Potemkin investigations directed at his political opponents.
How do we know he was doing this and not conducting a meritorious investigation? For a meritorious effort to root out corruption in other governments, he had no need for a shadow foreign policy team. His own State Department was already hard at work on this subject, and perfectly well equipped to fight corruption wherever a serious case for that fight might be made. The fact that he sent his personal lawyer to work on these matters instead is itself a powerful signal that the president was not engaged in the work of statesmanship for which he has the State Department, and a very supportive secretary of state, standing at the ready.
Yes, this impeachment investigation is about fairness. That’s exactly what it’s about. It is fundamentally about whether Trump has defended American fair play, in accord with his presidential oath to execute the laws faithfully. Or has he undermined American fair play?
Here’s what’s fair to the American people: Having candidates who are willing to fight fair. Having a president who defends, and does not undermine, the integrity of our electoral system.