The temptation in a trial, even an impeachment trial, is to treat both sides as presenting equally plausible, legitimate arguments. “The prosecutors say X; the defense says Y.” When one side, however, submits a filing with 111 pages of finely detailed argument referencing and cross-referencing hours of testimony and the other side submits six pages of “Witch hunt!” and “The Democrats hate President Trump,” it is incumbent upon the media to point out that the first is a legitimate argument and the second is noise.

Republicans repeatedly have advanced bad-faith arguments and dropped them when they proved too ridiculous to sustain, only to move on to a new argument, equally spurious. Three of their favorite dodges deserve scrutiny.

Remember when the claim was that the whistleblower was lying? That argument and accusations of treason against the whistleblower went on for weeks until, one by one, the allegations were proved true. Yes, Trump had raised the Bidens during the July 25 call. Yes, the document was moved to a secret server. Yes, Trump was pressuring a foreign power, using his personal lawyer, Rudolph W. Giuliani, to help him manufacture dirt on a rival. Yes, the plot to oust Ambassador Marie Yovanovitch was done at the behest of Giuliani, his goons and former Ukrainian prosecutor general Yuri Lutsenko. Yes, aid was held up at Trump’s direction.

Indeed, the smears of each of the witnesses — Yovanovitch, Lt. Col. Alexander Vindman, et al. — attempted to discredit their testimony. But as the witnesses and documents bolstered their accounts, attacks on witnesses’ credibility faded.

Fifteen of the GOP senators who will try President Trump's impeachment were in Congress during the Clinton impeachment. Only one voted to acquit Bill Clinton. (The Washington Post)

We have reached the point at which Republicans have failed to discredit any essential piece of evidence Democrats have presented. Arguing that the House wanted to impeach Trump from Day One or that impeachment is “unconstitutional” (an impossibility because the Constitution provides for impeachment under whatever rules the House sets forth), Republicans use retorts that are nonresponsive and incoherent. In sum, after arguing for months that all these people were lying, the White House cannot produce a single witness or document to disprove the central allegations. The lies that Trump told (e.g., no quid pro quo, he wanted to root out corruption) were part of a coverup. The media are obligated to point this out.

The next category of bad-faith arguments concerns the Senate’s apparent refusal to call available witnesses and documents. Here again, the media should point out: Witnesses appeared in every Senate impeachment trial, and the oath senators take is to provide a fair trial. To the extent Republicans complain about the lack of firsthand evidence, they are obligated to allow the House to call acting White House chief of staff Mick Mulvaney, former national security adviser John Bolton, senior adviser to the acting White House chief of staff Robert Blair, Office of Management and Budget official Michael Duffey and Giuliani associate Lev Parnas.

The arguments against calling witnesses are as inconsistent as they are unconvincing, as Trump sycophantic Sen. David Perdue (R-Ga.) revealed on Sunday:

Again, the media’s obligation is to point out that the Republicans’ arguments are inconsistent with precedent, with basic notions of justice and with the oath they took to hold a fair trial. Simply saying “Democrats want witnesses, Republicans do not” is to give Republicans’ arguments credence they do not warrant. This is accurate: “Democrats want witnesses, as has been the case in every impeachment; Republicans want to prevent firsthand testimony of critical events for fear of further incriminating Trump.”

The next strain of bad-faith arguments will presumably be the province of Alan Dershowitz, who has taken to calling abuse of power unimpeachable. This is wrong. It’s not a questionable argument. It is a false one. In Federalist 65, Alexander Hamilton wrote that impeachment was designed to address acts that “proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” The framers did not give impeachment power to the courts because the adjudication here is not of a violation of law; it is of violation of an oath and destruction of our system of government.

Don’t take my word for it. Hundreds of law professors agree:

There is overwhelming evidence that President Trump betrayed his oath of office by seeking to use presidential power to pressure a foreign government to help him distort an American election, for his personal and political benefit, at the direct expense of national security interests as determined by Congress. His conduct is precisely the type of threat to our democracy that the Founders feared when they included the remedy of impeachment in the Constitution. …
Impeachment is a remedy for grave abuses of the public trust. The two specific bases for impeachment named in the Constitution — treason and bribery — involve such abuses because they include conduct undertaken not in the “faithful execution” of public office that the Constitution requires, but instead for personal gain (bribery) or to benefit a foreign enemy (treason).
Impeachment is an especially essential remedy for conduct that corrupts elections.

Law professor John Mikhail points out that “abuse of power was one of the articles of impeachment adopted by the House Judiciary Committee against Richard Nixon in 1974 and against Bill Clinton in 1998.” Likewise, “In the impeachment of President Andrew Johnson, House Manager Benjamin F. Butler of Massachusetts defined ‘high crime or misdemeanor’ to include ‘the abuse of discretionary power from improper motives or for any improper purpose.’”

The media must call foul if Dershowitz makes this bad-faith argument that abuse of power, which has been cited in past articles of impeachment, is not impeachable.

In sum, the three types of bad-faith arguments — accusations of falsity (effectively dropped when evidence is irrefutable), insistence on suppressing evidence and denial that abuse of power is impeachable — should not be given credence. (Of course, the first and second are mutually exclusive. If the Republicans think all the existing witnesses and documents are false, then Democrats should be entitled to call the witnesses with firsthand knowledge.)

Republicans’ bad-faith assertions are not defenses but chum thrown in the ocean of Fox News misinformation, designed to give cowardly senators an “out” to avoid voting for witnesses and for impeachment. The media should not become handmaidens to Trump’s effort to create a false equivalence between Democrats’ fact-based arguments rooted in the Constitution and Republicans fact-free howling and misdirection.

If senators want to break their oaths, that is up to them, but the media should not provide the cover of legitimacy to the arguments they manufacture to avoid an uncomfortable reality: Senate Republicans have no constitutional or factual basis for acquittal.

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