Author: Henry Wray

Arguments that there is something wrong with moving ahead now to fill the Supreme Court vacancy caused by Justice Ginsburg’s death are bogus. Judge Barrett’s confirmation should proceed except in the unlikely event that holding off could produce a bipartisan deal to deescalate the toxic politicization of judicial confirmations. An ideal compromise would (1) reinstate the 60-vote threshold for confirming federal judges and (2) revive the standard that judicial confirmations should be based on merit rather than politics.

The Barrett nomination and confirmation schedule are appropriate

Prior to the Merrick Garland fiasco, there was no apparent problem with Supreme Court nominations and Senate confirmations during the last year of a president’s term. Presidents possess the full range of their authorities for their full time in office and clearly have the right to submit nominations whenever Supreme Court vacancies occur. Those who elected them expect no less. Likewise, the Senate has full authority, and even an ethical duty, to consider such nominations in good faith.

The projected timetable for Judge Barrett’s confirmation of about 38 days is short but not unprecedented. For example, the Washington Post reports that Justice Ginsburg was confirmed in 42 days, Sandra Day O’Connor in 33 days, and John Paul Stevens in only 19 days. In any event, the confirmation timeline should not depend on an arbitrary number of days but on whether it gives the Senate enough time for its due diligence. Judge Barrett was nominated and confirmed to the Seventh Circuit in 2017; thus, she is recently vetted and a known quantity to the Senate. She appears to be an exceptionally well qualified nominee, both professionally and personally. While issues could arise that legitimately require more time, there is no reason at present to dismiss the proposed confirmation timeline. 

The Garland debacle should not become the new normal

Democrats and the liberal media are in high dudgeon over the Barrett nomination based on Republicans’ refusal to consider former President Obama’s nomination of Merrick Garland during the last year of his term in 2016. Their stance was rightly condemned by Democrats, the media, and many others. The hypocrisy Republicans now display by their reversal of position is palpable. However, none of this constitutes a substantive justification for opposing Judge Barrett’s confirmation. For one thing, Democrats and the media are being just as hypocritical in reversing their own stance from 2016. Also, there’s little doubt that if the situation were reversed, Democrats (with liberal media support) would have done what Republicans did in 2016 and would do now what Republicans are doing. Sadly, Supreme Court confirmations have become so politicized that hardly anything said by either side is worth taking seriously.

More importantly, the contention that the Senate should not confirm a Supreme Court nominee in the last year of a president’s term, which liberals now invoke as “the Garland principle,” was unprincipled nonsense when Republicans disingenuously conjured it up in 2016 and still is today. It would be equally wrong for Democrats to embrace it now and probably perpetuate it. While the Senate has the raw power to deny good faith consideration to Supreme Court nominations, this surely amounts to an abuse of its constitutional advise and consent role and a dereliction of its duty at least from an ethical standpoint.

There is an overriding need to deescalate politicization of judicial appointments before it destroys the judiciary

While acting on the Barrett nomination now is fully justified, there may be a better option for those who take a longer-term view and care foremost about preserving the integrity of the judicial branch. The federal judiciary can function effectively only if judges are nonpartisan and independent in reality and perception. However, judicial appointments, particularly to the Supreme Court, have been politicized to the point of jeopardizing the credibility of the judiciary. The process has degenerated further with each recent confirmation. The Barrett confirmation promises to continue this sorry trend. Democrats and the media are already spewing hyperbole and threatening drastic retaliation if the nomination goes through. Their worst threat is to “pack” the Court, which would utterly destroy its stature. Reversing this downward spiral is arguably more important than any individual confirmation.   

Restoring the 60-vote threshold for judicial confirmations

Longstanding Senate rules can force a 60-vote majority to confirm federal judges. However, in 2013 Democrats invoked the so-called “nuclear option” (well named to capture its extremism) to override the rules and enable confirmation of lower court federal judges by simple majority vote. In 2017, Democrats’ mindless filibuster of the Gorsuch nomination forced Republicans to abandon the 60-vote rule for Supreme Court confirmations as well. In the closely divided Senate, reviving the 60-vote threshold would necessitate significant bipartisan support for judicial confirmations.

Restoring confirmations based on merit

Not too long ago, Supreme Court nominees were confirmed or rejected based on their merits: intellect, background and experience, and personal integrity. Nominees’ judicial philosophy made little difference so long as they were within the mainstream of legal thought; nor did it matter whether the nominating president was a Republican or Democrat. Applying this standard, bipartisan Senate majorities overwhelming confirmed nominees as ideologically disparate as Ginsburg (96-3) and Scalia (98-0). It also was considered inappropriate to apply “litmus tests” to nominees or press them to reveal how they would vote in specific cases. (The latter became known as “the Ginsburg standard” since Justice Ginsburg espoused it forcefully at her confirmation hearing.) Returning to these merit-based standards along with reimposing the 60-vote rule would go a long way toward restoring integrity to judicial confirmations.

Is compromise possible?

The Senate has sunk so low that any effort at rational, bipartisan compromise is a long shot. However, the above steps are hardly radical; they simply restore the status quo that existed for many years. The 60-vote rule applied until very recently. With several notable exceptions, broad bipartisanship and merit-based standards held sway through 1994 when Justice Breyer was confirmed by an 87-9 vote. Nominees continued to receive significant bipartisan support as recently as Justice Kagan in 2010.

The hyper-partisan Senate leaders on each side would be of no help in forging a compromise. However, a handful of courageous, institutionalist senators from each party (if they can be found) could form a critical mass to force reform. Now is as good a time as any to try. While Republicans currently have the upper hand, they are at considerable risk of losing both the presidency and their Senate majority. This would open the floodgates for Democrats to add judges (and maybe justices) in the immediate future. The stakes are even higher for Democrats. This is the first appointment in decades that would dramatically change the Court’s ideological composition. Replacing Ginsburg with Barrett probably would guarantee a conservative majority of justices for years to come even if Democrats sweep the election.

While a bipartisan compromise along the above lines may be the ideal outcome, it is probably a bridge too far. If so, and if no shocking developments occur in the confirmation process, Judge Barrett should be confirmed.  

The tragic death of George Floyd at the hands of Minneapolis police and other recent incidents feed the narrative promoted by Black Lives Matter (BLM) and re-enforced by much of the media that cops are engaged in deadly warfare against African Americans. The BLM website  (www.Blacklivesmatter.com/whatwebelieve) asserts that Blacks are the victims of “rampant and deliberate violence inflicted on us by the state.” Statistics and objective studies flatly refute this narrative.

Most police killings (of both Blacks and Whites) occur where police encounter armed, violent individuals who threaten them or others. Such encounters involve African Americans disproportionately. While Blacks are killed at a much higher rate than their share of the population, this disparity vanishes when their disproportionate rate of violent crime (overwhelmingly committed by young Black males against other Blacks) is factored in. The reality is that disproportionate police killings of Blacks will subside only when disproportionate Black violent crime subsides.

At the same time, it bears emphasis that disproportionate Black crime rates reflect a host of other racial disparities impacting African Americans that do stem from racism and persist after centuries of overt race discrimination. Fatal police encounters are only one symptom of these deeper problems. Until policymakers address the underlying problems, little is likely to change.

Data sources

Comprehensive data on police killings of civilians is limited since there is no official, comprehensive database–a serious shortcoming in itself. The best available data sources come from outside government. The following analysis relies primarily on the Washington Post’s “Fatal Force” database because it covers all lethal shootings by police from 2015 forward and is readily searchable by race and other relevant criteria. While George Floyd’s killing did not involve firearms, shootings comprise more than 90 percent of all fatal intentional use of force cases involving police. This analysis also relies on a series of studies that have been done in recent years as described here, here, here, here, here, here and here.      

Preliminary observations

A few overall points are worth making before delving into the statistics and studies. First, the vast majority of African Americans, like other citizens, are law-abiding individuals who never experience violent encounters with police.

Second, police killings of civilians of any race are rare. Nationwide, cops interact with civilians over 50 million times each year and make over 10 million arrests annually. Fatalities at the hands of police constitute a minuscule percentage of these interactions. According to the Post’s database, police on average fatally shoot close to 1,000 civilians per year, of whom about 225 to 250 are Black. This represents less than one death out of every 10,000 arrests and at most one Black death out of every 40,000. Of course, all such deaths, Black and otherwise, are concerning and deserve scrutiny. However, they hardly show a pattern of rampant violence directed against Blacks or anyone else.

Third, police killings of unarmed civilians are rarer still. Over 90 percent of those shot dead by police are armed. Nationwide, 55 unarmed shooting fatalities occurred in 2019, including 14 Blacks and 25 Whites. Moreover, some victims classified as “unarmed” were killed while attacking police officers. Almost all persons killed by police, armed and unarmed, resisted the police in some way. Several highly publicized cases (including Floyd’s) involve police encounters that began fairly routinely but escalated due to actions of the victim.

Objective studies refute the narrative of racial animus in police killings

With the foregoing perspectives in mind, what do the data show about fatal police encounters? While police fatally shoot more Whites than Blacks each year, the percentage of Black victims significantly exceeds their representation in the general population. African Americans constitute roughly 13 percent of the Nation’s population but account for about 24 percent of fatal police shootings. Many contend that this disparity proves racial bias. However, looking only at demographic representation has little probative value. For example, using this sole criterion would mean that police engage in massive sex discrimination since 96 percent of fatal shooting victims are male.  

What, then, does explain disproportionate police killings of Blacks? Studies consistently find that the statistical disparity in police shootings of Blacks evaporates when the even more disproportionate share of violent crime they commit is factored in. Blacks account for 58 percent of all murder arrests and 40 percent of those apprehended for all violent crimes. Most police killings occur when cops encounter potentially violent situations with armed, threatening individuals. Such encounters involve African Americans disproportionately, the great majority being young armed males. It is also noteworthy that the studies find no disparity in the race of police officers doing the shooting; Black officers are just as likely as White officers to shoot Black victims.

Activists and the media turn a blind eye to all of this and focus instead on a few individual cases that appear (at least at first blush) to be the most egregious, particularly those rare instances in which the victim was unarmed. Some cases, such as Floyd’s killing, do seem wholly unjustified. In other highly publicized cases, however, police culpability is ambiguous or nonexistent. The highly publicized 2014 killing of Michael Brown in Ferguson, Missouri, fits the latter category. The cop who shot Brown was exonerated both by local officials and the Obama Justice Department, yet his case is still widely invoked as a prime example of police racism and prominent politicians still falsely describe Brown’s killing as “murder.”

Those promoting the narrative of racist police killings also ignore the fact that dubious police-involved killings are not unique to Blacks. As one commentator observed, for every Black person killed by police, there usually is at least one White person killed in a similar way. For example, the 2016 killing of a White man (Tony Timpa) by Dallas police was strikingly similar to Floyd’s. Like most cases of White victims, Timpa’s death received little if any national publicity.  

The victims of violent crime committed by Blacks are overwhelmingly Black.

The toll that violent crime takes on Black lives is still another obvious fact that activists and the media either ignore or deflect. According to the FBI, 2,870 Blacks were murdered in 2016; at least 2,570 (90%) were killed by other Blacks. Shockingly, homicide is the leading cause of death for Blacks up to age 45. Blacks between the ages of ten and 43 die of homicide at thirteen times the rate of Whites, according to the Centers for Disease Control. Thirty-eight juveniles have been murdered by gun violence in Chicago so far this year, including five under the age of 10.

Less policing leads to increased Black deaths

The so-called “Ferguson effect” posits that police become less proactive when they are subjected to withering criticism, which in turn leads to increased crime. The term was coined to explain the rise in crime in Ferguson, Missouri, following widespread outrage over the Michael Brown killing. Another dramatic example is what happened in Baltimore in the wake of the controversial death of Freddie Gray while in police custody and the widespread protests and rioting that followed. Many American cities are experiencing a surge in murders following the George Floyd killing and other recent police-involved incidents. The Ferguson effect theory has its detractors as well as proponents. However, a  recent study by Harvard economists provides supporting data for it. The study found that in cases of police killings of Blacks that went “viral” (i.e., generated great controversy), there followed large and statistically significant increases in homicides and total crime.  Other studies (described here) reach similar conclusions.

The Ferguson effect probably explains at least in part the recent dramatic increases in murders. This is particularly likely where politicians berate police before investigations are complete. An example is the non-fatal shooting of Jacob Blake in Kenosha, Wisconsin. The Wisconsin governor immediately condemned the police and the lieutenant governor described the shooting, bizarrely and without evidence, as “some sort of vendetta taken out on a member of our community.” While acknowledging that the facts need to be investigated, vice presidential candidate Kamala Harris nonetheless asserted that the police officer who shot Blake should be charged with a crime.  

Some police reforms are needed

The lack of evidence of racial animus in police killings does not mean there are no problems with policing. Studies find race-based disparities in a variety of more routine police actions that do not involve fatal force. Blacks are more likely than Whites to be subject to traffic stops and “stop and frisk” encounters. Blacks also report rough physical treatment and verbal abuse from police at a higher rate than Whites. (A recent Washington Post article catalogs studies finding such racial disparities in policing, among other components of the criminal justice system.) These disparities likely result from widely-held stereotypes of Black males as potentially dangerous and prone to criminal behavior. They also explain why African Americans have significantly less confidence than Whites that police will treat them fairly, although a majority of Blacks (71%) are at least somewhat confident of receiving positive treatment from police.

Race aside, there are also concerns that police resort to force too quickly and use force excessively against both Blacks and Whites. Even legally justified killings by police may still be avoidable. Some reforms to address these problems have been enacted in the wake of the Floyd killing, such as limiting “chokeholds” and other dubious police techniques, improving police training, and enhancing accountability. Reforms such as these have the potential to improve policing and strengthen relationships between police and the citizens they serve.

Bottom line: The key to reducing disproportionate Black deaths at the hands of police is to reduce disproportionate Black violent crime

Demonizing police and reducing police presence, particularly in high crime areas, will not save Black lives–at least innocent ones. On the contrary, it will cost innocent Black lives. What’s needed is not fewer police but better policing. Well-conceived reforms can enhance law enforcement and save lives. However, as long as combating violent crime remains a core police function and Blacks commit a disproportionate share of that crime, they will inevitably remain disproportionate victims of police killings.

George Floyd’s tragic death unleashed unprecedented national outrage over police killings of African Americans. Unfortunately, the directions this outrage has taken so far offer little hope for real change either in police outcomes or other racial disparities that underlie them. Instead, they promote more polarization and divisiveness through distortions from activists and much of the media, posturing and demagoguery from politicians, and symbolism over substance. These reactions feature heavy doses of tribalistic, stereotyping rhetoric that demeans both Blacks and Whites and impedes constructive debate. Until we come together in honest, good faith dialogue the problems will only grow worse.

Black Lives Matter (BLM) along with other activists and most media promote the narrative that police are engaged in ongoing lethal warfare against Blacks. This is demonstrably false. Even worse, measures they advocate would cost Black lives rather than save them and exacerbate racial disparities.            

State and local politicians cravenly attack their police departments to deflect attention from their own leadership failures. They control the police and bear direct responsibility for police performance. If cops systematically engage in bad practices, these officials allow it. If police unions have too much power, these officials approved it. Whatever excess funding or responsibilities police have these officials provided.

Symbolic actions coming from many quarters, including Whites intent on demonstrating their “wokeness,” are shallow and largely empty gestures. Destroying statues, renaming things, confessing to White privilege and racism, as well as other forms of virtue-signaling do nothing to save Black lives. Protests over Floyd’s death and more recent incidents have descended into riots and looting, sometimes apparently spearheaded by White anarchists. The ongoing protests in Portland seem to be an end in themselves and a form of local sport that has turned deadly. These actions repel rather than attract support for their supposed causes. 

The overheated rhetoric that permeates social media, academia, and much of what passes for civil discourse likewise turns off well-meaning people who would be receptive to rational debate. Branding everyone and everything “racist” trivializes that concept and robs it of meaning. Many of today’s “anti-racist” practitioners (often Whites) insult all races and discourage dialog. They seek to shoehorn everyone into monolithic tribal groups defined by ridiculous stereotypes. Whites are privileged racists who benefit from America’s defining history of suppressing minorities. Blacks are hapless victims who lack individual agency and the ability to affect their own destinies. As one (African American) reviewer observed, Robin DiAngelo’s best-selling book White Fragility, a prime example of contemporary anti-racist dogma, “entails an elaborate and pitilessly dehumanizing condescension toward Black people.” Similarly, another reviewer described her book as based on the “unstated assumption . . . that all black people are emotionally immature and child-like.”

What, then, can be done to harness the outrage into something productive? Serious efforts to reduce racial disparities in fatal police encounters must start with dispassionate, fact-based analysis. Two hard truths lie at the heart of the problem:

1. The cause of disproportionate Black deaths at the hands of police is not racism but the disproportionate rate of Black violent crime, overwhelmingly committed against Black victims. Disproportionate police killings of Blacks will subside only when disproportionate Black violent crime subsides. This will also save many more Black lives than police take.
2. Disproportionate Black violent crime, in turn, stems from a host of other racial disparities that persist  after centuries of true race discrimination. For example, Black males on average earn less money, are less likely to graduate from college, and die at younger ages than other American men. Until these underlying disparities are addressed, disproportionate Black crime is unlikely to subside.

BLM activists and their allies ignore the first truth; BLM critics and their allies ignore the second. Until all sides acknowledge and address both, little will change.

Remedying broader racial disparities requires attacking their root causes. Some are obvious, such as dangerous, drug- and gang-ridden neighborhoods and failing public schools. At a bare minimum, every American deserves physical security and every child deserves a decent education in a safe environment that is conducive to learning. Other root causes involve more complex problems such as entrenched segregated housing patterns and a range of sociological and cultural issues.

Paradoxically, activists like BLM and “woke” elites promote policies that diminish rather than enhance Black lives. This is manifestly true of calls to “defund” the police. Police reforms are appropriate to reduce excess use of force, enhance accountability, and improve relationships between police and minority citizens. However, reducing police presence, especially in high-crime neighborhoods, will increase innocent Black deaths. Unsurprisingly, few African Americans favor this approach. They want better not less policing.

Similarly, activists undermine the cause of racial justice by disparaging as “White values” such obviously beneficial paths to achievement as the nuclear family, traditional education, rational thinking, and individual responsibility. This also is hypocritical since elites embrace these values in their own lives and for their own families. Along the same lines, activists as well as academic and media elites increasingly espouse once-fringe “critical race theory” that portrays the United States as an irredeemably White supremacist country defined by “institutional” and “systemic” racism whose stated ideals are nothing but lies. These spurious charges not only turn off most Americans but also create what one critic describes as an ”activist black hole” that offers only a cynical message of victimhood and despair.

Another commentator noted that such assertions “create in the minds of students and teachers of all races a vision of America that is imbued with a permanent malignancy that is hostile to the dreams of students of color” and promotes “the soft bigotry of low expectations.” He contrasted this with the positive message of former President Obama, who argued that a constructive path forward for African Americans calls for–

“taking full responsibility for our own lives—by demanding more from our fathers, and spending more time with our children, and reading to them, and teaching them that, while they may face challenges and discrimination in their own lives, they must never succumb to despair or cynicism. They must always believe that they can write their own destiny.”

As President Obama recognized, the United States, like most countries, has a complex history that features both shameful episodes and those that inspire hope for the future. Our Nation has consistently evolved to reverse past shortcomings. It practiced slavery and engaged in legalized race discrimination but later fought a war to end slavery, outlawed race discrimination, and enacted numerous laws to promote racial equality. Anyone serious about eliminating racial disparities in police encounters and other areas needs to embrace and build upon this foundation—not tear it down.

The recently concluded Trump impeachment had no upsides and many downsides. It proved to be counterproductive at the end of the day. Trump avoided any accountability for his misbehavior regarding Ukraine and, unsurprisingly, claimed total “vindication” by his acquittal. It apparently benefited him politically judging from his rising poll numbers since the impeachment began. It certainly seems to have emboldened him. The impeachment and its aftermath intensified the visceral contempt for each other among the combatants. Witness the infantile conduct of Trump and Speaker Pelosi at this year’s State of the Union address. It provided yet another example of Washington’s partisan dysfunction and added to the polarization and pervasive cynicism that infect our national politics.

It didn’t have to be this way. From start to finish, the most reasonable take on the impeachment case was that Trump’s behavior was seriously inappropriate but not sufficiently egregious to justify the ultimate sanction of removal from office. The Democrats’ impeachment project was politically motivated overreach based on ambiguous and incomplete facts as well as dubious legal theories. It never had a chance to succeed. However, there’s a good chance that censuring Trump rather than impeaching him could have achieved significant bipartisan support and succeeded. It certainly would have been much harder for Republicans to vote against censure than impeachment.

A concurrent resolution of Congress to censure Trump was the best option. Concurrent resolutions require only a simple majority to pass in each chamber and are not subject to veto. Such a resolution probably would have picked up some Republican votes in the House and attracted at least the four Republican votes needed to pass the Senate. While carrying no legal consequences, a bipartisan, bicameral condemnation of Trump would have denied him any basis to claim validation of his conduct. While we’ll never know, it might even have chastened Trump to some degree. What we do know is that the failed impeachment had the opposite effect.  

What can be learned from the failed effort to remove President Trump from office? This is more than an abstract question. If Trump wins reelection and Democrats retain control of the House, there surely will be pressure for more impeachments. Even if political alignments change, the approach taken in this case could signal greater openness to impeachment as a response to future disputes between a president and Congress.

Key takeaways

The impeachment was destined to fail from the outset. Democrats launched their impeachment investigation as a partisan project and it never moved beyond that. After voting to impeach, they continued to treat it as a political exercise by holding a signing ceremony complete with souvenir pens and then delaying submission of the supposedly urgent impeachment articles to the Senate. The impeachment attracted zero Republican votes in the House and a single Republican vote on one article in the Senate. It failed to gain ground with the public despite heavy media promotion. Opinion polls hardly budged throughout the process; they consistently showed Democrats strongly in favor, Republicans strongly opposed, and independents roughly split.

House Democrats never attempted an impartial investigation. The Ukraine-related allegations against Trump certainly warranted congressional investigation. Had Democrats investigated them through the regular order and in a less partisan manner, the outcome might have been different. Once it became clear that impeachment would not gain bipartisan support, they could have opted to censure Trump instead. A censure resolution probably would have drawn significant Republican votes and passed both the House and Senate. However, Democrats made no effort to follow the regular order or work with Republicans. The investigation was assigned to House Intelligence Committee Chairman Adam Schiff, a highly partisan and long-time Trump antagonist, despite having nothing to do with intelligence matters. It was quickly designated an “impeachment” investigation. From then on, there was no chance of attracting Republicans or for Democrats to step back from impeachment.

Senate Republicans didn’t conduct a meaningful trial. The Senate was derelict in not obtaining witness testimony. There was no plausible justification for not calling John Bolton, at a bare minimum. The whistleblower also would have been an important witness. He could have explained his interactions with Democrats before filing his complaint and elaborated on the information provided to him. It doesn’t matter that the House failed to do its job or that Democrats probably didn’t really want witnesses either. Nor does it matter that witnesses might have extended the process. The Senate could have suspended the trial and initially obtained testimony through depositions.      

Hardly any participants in the impeachment process distinguished themselves. The opposing factions mirrored each other in many ways, none of which provided a good look:

• The House impeached Trump on an overwhelmingly partisan basis without fully developing the facts; the Senate acquitted him on an overwhelmingly partisan basis without fully developing the facts.
• During the House and Senate proceedings, advocates on both sides regularly distorted what facts they had and engaged in hyperbole and demagoguery.
• The media largely assumed the role of cheerleaders for one side or the other, depending on their biases, and served as uncritical echo chambers for their favored side. As a result, media coverage was sorely lacking in objective reporting and thoughtful analysis.
• Members of Congress on both sides acted like craven partisans. Many Republicans surely recognized that Trump’s behavior was improper but very few voiced even the slightest criticism of him. Many Democrats no doubt understood that impeachment was an overreach, yet only three House Democrats voted against it and not a single Democratic senator voted against conviction on either impeachment article.
• For his part, Trump attempted to stonewall the process from start to finish and spouted his usual malign nonsense throughout.    

The only person to clearly distinguish himself was Chief Justice Roberts, who presided over the Senate trial with remarkable patience and equanimity. Mitt Romney might deserve honorable mention for at least showing some independence.

House Democrats lowered the bar for impeachment. Democrats struggled to fit their case within the constitutional grounds for impeachment, floating different theories at different times. The “abuse of power” article they finally settled on was essentially that Trump exercised legitimate powers of his office “corruptly,” i.e., with self-serving political motives. However, presidents regularly factor their political interests into their actions and have vast legitimate authority to take actions that stand to benefit them politically. The Democrats’ theory of the case—that Trump elevated his political interests over the national interest—could convert a wide range of policy disputes between Congress and a president into potential impeachments.

Key lessons learned

Partisan impeachments are fundamentally a bad idea. Nancy Pelosi was right the first time when she counseled against them. Impeachments that lack significant bipartisan and broad-based public support are bound to fail and result only in further degrading our politics.  

Don’t be too quick to attach the “impeachment” label to investigations of presidential misconduct. Once the impeachment card is played, both sides dig in and perspectives harden. This leaves little room to bridge political divides and explore bipartisan responses. Better to wait until it’s likely that impeachment and conviction are both viable options.   

If the House is determined to impeach, do a thorough job of it. House Democrats rushed through Trump’s impeachment with incomplete facts and squishy legal theories and then pressed the Senate to fill in the blanks. It was a losing strategy. They also punted on pursuing  litigation to get more facts that would also have established important judicial precedents to demarcate the rights of the legislative and executive branches in future impeachment cases.  

Impeachment should be limited to presidential misconduct that is unlawful by some objective standard. It is and should be exceedingly hard to make an impeachment case out of presidential conduct that is legal on its face. Impeachable conduct need not be limited to violations of criminal statutes; it can include violations of the Constitution. In order to be impeachable, however, constitutional abuses of power should involve an action that clearly exceeds a president’s constitutional authority or a failure by the president to carry out a constitutional duty. An impeachment case that turns entirely on the president’s subjective motives is problematic at best.

If there’s a next time, do it right. Follow the regular order and normal jurisdictional lines in conducting investigations of presidential misconduct. Take the time to develop the relevant facts as thoroughly as possible, pursing litigation if necessary. Try to work with the minority party. Don’t go the impeachment route unless and until the facts and law clearly justify that approach.    

The next (and perhaps last) bit of drama in the impeachment saga is likely to be over whether to allow witnesses. Democrats are pressing to call Trump’s former National Security Advisor, John Bolton, his Chief of Staff, Mick Mulvaney, and two lesser White House officials. Most Republicans strongly resist having any witnesses and threaten to call witnesses of their own if the Democrats prevail on this issue.

The debate over witnesses is somewhat disingenuous on both sides. Democrats chose not to pursue Bolton and the others during their House investigation and the sincerity of their demand for witnesses on the Senate side is open to question. Recognizing that Trump will be acquitted, they insist that the Senate trial is a “sham” and a “cover-up.” Obtaining the right to call witnesses could undermine this key talking point. Democrats also could regret some “reciprocal” witnesses Republicans might call, such as the whistleblower. Lead impeacher Adam Schiff suddenly lost interest in hearing from him when it was revealed that he contacted Schiff’s committee before submitting his complaint.

The Republican side of the debate is equally hypocritical. Trump and his allies emphasize the lack of direct evidence concerning Trump’s involvement and motives. At the same time, they are dead set against hearing from individuals who could supply such evidence.       

There’s a way to sidestep this Kabuki dance and quickly resolve the most important part of the witness issue. As a practical matter, the only proposed Democratic witness who’s likely to provide evidence relating directly to Trump is Bolton. Trump probably would invoke executive privilege to effectively prevent Mulvaney and the other current White House staffers from testifying without a protracted court fight. Bolton, however, is no longer subject to Trump’s direction and he has expressed willingness to testify if subpoenaed. Presumably, this means he would not feel constrained by an executive privilege claim against his testimony. Bolton also has hinted that he can offer valuable insights.

But why wait for a subpoena? It may well never come. Even if it does, Trump’s forces might sue to quash it, thereby causing substantial delay. If Bolton has something to say, he should take the initiative and voluntarily say it now in public for all to hear. There’s no legal obstacle to doing this. Bolton surely has a First Amendment right to speak out. He owes that much to the American people if indeed he has important new information to provide. As Schiff correctly noted in his Senate presentation, whatever Bolton and others know will eventually come out in a book or another form. It would be unconscionable for Bolton to hold off until then.

There are any number of reasons to consider Donald Trump unfit for office. Even many of those who support him, either affirmatively or as the least of available evils, surely recognize his massive character and other flaws. He’s probably the first president in history who strives to be polarizing and divisive.  One of Trump’s negative traits is his knack for bringing out the worst in his opponents and reducing them to his level. Many never accepted his election and have succumbed to the urge to end his presidency by any means necessary. His recent impeachment by the House of Representatives is an example.

Trump’s impeachment was a wholly partisan exercise in the House that is destined to end with a partisan acquittal in the Senate, if it gets that far. After asserting an urgent need to remove Trump from office that couldn’t await the 2020 election, House Democrats are now in no hurry for a Senate trial. They are apparently stalling in order to pressure the Senate to call witnesses and develop additional evidence they chose not to pursue. They may even prefer to delay a Senate trial indefinitely. These tactics reinforce the partisan nature of the impeachment and signal Democrats’ lack of seriousness about it.

One likely reason this effort attracted zero bipartisan support and failed to generate broad public approval is the weakness of the case for impeachment. It rests on very thin evidence and dubious legal grounds. The two most serious charges in the impeachment narrative—that Trump demanded Ukrainian President Zelensky “dig up” or even manufacture “dirt” on Joe Biden and that he conditioned military aid for Ukraine on Zelensky’s agreement to do so—are unsupported by the evidence. The principal legal ground—that Trump abused his power by subordinating the national interest to his personal political interests—is a vague and elastic standard that could apply any time a president is accused of placing politics above the accusers’ version of good public policy.  

The impeachment’s political impact on the 2020 election is hard to predict. Whatever bearing the information it developed has on Trump’s fitness for office will be left, appropriately, for the voters to decide. What’s easier to predict is that this impeachment will do further and perhaps lasting damage to our already fractured national politics. In the short term, it’s sure to drive political polarization and public cynicism above their already high levels. In the longer term, there’s a real danger that impeachment will become the normal recourse in the future for addressing policy disputes when different parties control the presidency and the House. Indeed, if Trump is reelected and Democrats retain the House, there’s a good chance they’ll find a reason to impeach him again. 

Trump brings many problems on himself through his impulsive, reckless and selfish behavior. Members of Congress of both parties also deserve much blame as they regularly engage in either knee-jerk support or opposition concerning all things Trump. Other institutions that are important to the health of our democracy are complicit as well.

Many in the media have foregone journalistic principles of objectivity when it comes to Trump. After spending more than two futile years flogging evidence-free conspiracy theories about Trump and Russian election interference, they jumped enthusiastically to the Ukraine impeachment bandwagon.  Throughout the impeachment process, reporters and opinion writers have behaved like group-thinking cheerleaders, providing an uncritical echo chamber for any and all allegations against Trump. In typical fashion, a December 14 New York Times editorial called the case for impeachment “short, simple and damning,” relying on key allegations that have no support in the evidence:

“President Donald Trump abused the power of his office by strong-arming Ukraine, a vulnerable ally, holding up hundreds of millions of dollars in military aid until it agreed to help him influence the 2020 election by digging up dirt on a political rival.”

Such reflexive anti-Trumpism deprives the public of much-needed impartial reporting and thoughtful commentary. It also further undermines the media’s already abysmal credibility with the public. 

Anti-Trump lawyers have likewise abandoned sound constitutional analysis and basic concepts of due process in their zeal to undermine Trump’s legitimacy. One notable example is Harvard law professor Laurence Tribe. (See here and here.) Lawyers selected by House Democrats to testify at the impeachment hearings advocated sweeping grounds for impeachment that have no clear limits or objective standards. Like the media, they took liberties with the facts and engaged in ridiculously exaggerated rhetoric. One of them, Michael Gerhardt, testified:

“The president’s serious misconduct, including bribery, soliciting a personal favor from a foreign leader in exchange for his exercise of power, and obstruction of justice and Congress are worse than the misconduct of any prior president, including what previous presidents who faced impeachment have done or been accused of doing. * * * If Congress fails to impeach here, then the impeachment process has lost all meaning and, along with that, our Constitution’s carefully crafted safeguards against the establishment of a king on American soil.”

Trump is hardly a sympathetic figure and it may be tempting to lower the impeachment bar for him. Ultimately, however, this is an exercise in futility that will accomplish nothing positive and threatens to seriously harm the Nation in the long run. Exactly what constitutes adequate grounds for impeachment is subject to legitimate debate in individual cases. Nevertheless, there should be one overriding test that applies to Trump as well as any other president: Impeachment should not be pursued without significant bipartisan and broad-based public support. Any impeachment that cannot meet this test is almost sure to fail and result only in more political discord.

Republicans should have applied this test to the Clinton impeachment and paid a price for not doing so. It’s a test that House Speaker Nancy Pelosi wisely embraced until recently, observing “impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path.” It’s too bad she reversed herself, apparently caving to pressure from her left flank. Our Nation would be better served if Democrats and their allies dropped their flawed impeachment effort and instead concentrated on finding a way to oust Trump at the ballot box in 2020.

Democrats claim to have an overwhelming case for impeaching President Trump. Much of the media agree, enthusiastically supporting impeachment more as cheerleaders than objective journalists.  Trump’s reaction is unhinged and mean-spirited even by his usual abysmal standards. He spews obvious falsehoods, levels scurrilous personal attacks, and spouts other nonsense. Trump’s supporters in Congress and elsewhere focus primarily on perhaps justified but still overwrought objections to the impeachment process. Largely missing in all this sound and fury is dispassionate, fact-based analysis of the case against Trump. What does the evidence really prove and does it clearly establish valid legal grounds for Trump’s impeachment and removal from office? Importantly, would any other president be impeached on this record?

The case for impeachment is based largely on second-hand testimony and inferences drawn from ambiguous facts.

Impeachers maintain that there is a mountain of uncontroverted incriminating evidence against Trump. This is far from true. Considerable uncontested evidence provides background and context for the impeachment charges. However, evidence directly relevant to Trump’s guilt or innocence is quite limited. It’s clear that Trump asked Ukrainian President Zelensky to conduct two investigations, one of which involved a potential 2020 opponent, Joe Biden. Beyond this, evidence of his involvement is sparse and key factual assertions are contested or open to different interpretations. This applies to the “quid pro quo” issues. There is no direct evidence that Trump imposed a quid pro quo of any kind. He denied this publicly and in at least one conversation with a subordinate. Zelensky says no quid pro quo existed from his perspective. The summary of the July 25 phone call between Trump and Zelensky falls short of demonstrating a quid pro quo, which probably explains why lead impeacher Adam Schiff chose to embellish what Trump actually said in that conversation. Finally, no quid pro quo materialized.  

Impeachers rightly point out that Trump refused to permit testimony by some close associates who might be able to supply direct evidence concerning his role. On the other hand, the House elected to proceed without pursuing their testimony. In any event, the fact remains that such evidence is lacking.

Many key assertions by impeachers are not supported by the evidence or run counter to the available evidence.

Impeachers base much of their case against Trump on drawing the most negative inferences possible from ambiguous evidence. Sometimes they go further and reach conclusions that contradict the weight of the evidence or make assertions that are wholly unsupported by the evidence.

Trump’s motivation in requesting the investigations was all about benefiting his 2020 reelection prospects. Determining Trump’s motives is speculative. However, one of the investigations concerned 2016 election interference and is essentially irrelevant to the 2020 election. This investigation arguably was more important to Trump than the one involving Biden since it was the specific “favor” he initially asked for in his July 25 conversation with Zelensky. While benefiting his reelection may have been part of Trump’s motivation, it was clearly not the only part and perhaps not even the primary part.

Trump asked for an investigation of Ukrainian 2016 election interference in order to promote the “discredited” theory that Ukraine rather than Russia was responsible for it. Trump did reference “CrowdStrike” in his July 25 phone call with Zelensky. At the same time, Trump clearly believed that Ukrainian forces worked against his 2016 election and disliked and distrusted Ukraine for this reason. Thus, he may well have been more concerned over what Ukrainians did or didn’t do in 2016 than anything involving Russia.   

Trump asked Zelensky to “dig up” or even fabricate “dirt” on Biden. Schiff launched this false narrative in his embellished version of Trump’s July 25 phone call with Zelensky: “I want you to make up dirt on my political opponent, understand? Lots of it.” Democrats and the media seized upon this narrative and have echoed it ever since. Trump may have hoped the investigation would produce “dirt” on Biden, but he never asked for it. There’s no evidence that Trump or anyone acting for him voiced any demands or expectations concerning the conduct or outcome of either investigation.  

Trump didn’t care whether the investigations were actually conducted; he viewed a public announcement by Zelensky that he would investigate Biden as sufficiently damaging. This is inconsistent with the previous assertion that Trump demanded dirt on Biden. In any event, it misrepresents the testimony on which it is based. The testimony (by Gordon Sondland) clearly indicates that a public announcement was considered important to ensure that Zelensky would in fact follow through and conduct the investigations.

Trump solicited foreign election interference. The impeachment articles allege that Trump “solicited the interference of a foreign government” in the 2020 presidential election. This is hyperbole that doesn’t remotely fit the facts. Foreign interference in U.S. elections conjures up notions of Russians hacking into email accounts of American politicians and political organizations and orchestrating stealth propaganda campaigns through internet trolling. What Trump asked Zelensky to do bears no resemblance to this. The requested investigations had no preordained agendas, would have been conducted in Ukraine, and focused primarily on Ukrainian citizens and organizations. Under the impeachers’ theory, any presidential request for a foreign government to take any action that could benefit the president’s reelection prospects could constitute soliciting foreign interference in the election.    

Trump’s withholding of military aid posed a major threat to national security. There is no evidence that the Trump Administration intended to let the military aid go unspent. A president can’t unilaterally cancel funds appropriated by Congress; this requires the submission of a “rescission” proposal to Congress under the Impoundment Control Act (ICA). The Administration took no steps to rescind the Ukrainian military aid. Likewise, there’s no evidence that the delay in releasing the aid funds had a significant adverse national security impact. However, as the Government Accountability Office has concluded, the temporary hold did constitute an unauthorized “policy impoundment” that violated the ICA.

Trump released the military aid only because he got “caught” when the whistleblower exposed his scheme. This evidence-free speculation ignores more plausible explanations for why the military aid was released when it was. News of the whistleblower complaint began seeping out around the second week in September at about the same time the hold on military aid was lifted. Impeachers base their assertion on this timing. However, the military aid funds were scheduled to expire at the end of September and thus had to be released when they were in order to be spent. Furthermore, Trump came under heavy bipartisan congressional pressure to release the funds as soon as the hold was publicized in late August and before the whistleblower complaint.     

The weakest part of the impeachment case concerns the hold on military assistance.

The assertion that Trump used military aid to Ukraine as part of a quid pro quo for the investigations he wanted is the most serious single element in the impeachment case against Trump. It’s also the weakest from an evidence standpoint. The House impeachment inquiry detailed numerous interactions among Trump’s personal attorney, Rudy Giuliani, Trump’s political appointees, career diplomats, and various Ukrainians that occurred over many months. They focused almost exclusively on negotiating a White House meeting for Zelensky. There was ample testimony that Giuliani called the shots in the negotiations. Trump instructed his subordinates to work with Giuliani and even encouraged Zelensky to talk to him. There was testimony that Giuliani participated in drafting a statement by Zelensky announcing the investigations and insisted that the statement include explicit references to both 2106 election interference and Burisma, the Ukrainian energy company that employed Joe Biden’s son as a board member. (There is no indication Giuliani insisted that either of the Bidens be mentioned in the announcement.)

This provides substantial indirect evidence that Trump, acting through his agents, conditioned a White House meeting for Zelensky on the latter’s agreement to do the requested investigations. By contrast, there is no comparable evidence that military aid was part of a quid pro quo. Issues over military aid did not arise until the tail end of the protracted negotiations concerning the White House meeting and lasted only a few weeks. According to a timeline of events, Trump imposed a hold on military aid in mid-July, the hold was first publicly reported on August 28, and the aid was released on September 11.

There is no indication that Zelensky was aware of the hold until it became public in late August. Notably, Trump made no mention of it in his July 25 phone call with Zelensky, although he had imposed the hold shortly before. Perhaps most significantly, Giuliani apparently was unaware of the hold before August 28. Gordon Sondland was very clear in his testimony that the White House meeting was part of a quid pro quo based on instructions coming from Giuliani. However, Sondland said nothing about Giuliani raising the subject of military aid with him. Sondland described his belief that military aid was part of the quid pro quo as only a “guess.”

Trump’s hold on military aid likely had something to do with his perception that Ukraine worked against him in 2016 and his general skepticism toward Ukraine. His Acting Chief of Staff, Mick Mulvaney, said as much in a press conference. However, Mulvaney also said that Trump’s primary reservations were over Ukrainian corruption and the failure of other countries to contribute to Ukraine’s defense. There are indications that Trump imposed the hold in reaction to a newspaper article he read and asked for information on what other nations were contributing to Ukraine. The circumstances relating to the hold on military aid remain murky. Importantly, however, what evidence there is suggests that it operated on a separate track and played no role in negotiations with the Ukrainians pertaining to the investigations Trump wanted. 

The stated grounds for impeachment are nebulous and set a low bar for removal of the president.

The Constitution provides for removal of a president “on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Democrats have struggled to define exactly how Trump’s conduct fits this constitutional standard. At first, they emphasized the concept of a “quid pro quo” but that didn’t resonate with the public. Then they argued that Trump’s conduct constituted “bribery.” But this was apparently based more on focus group-tested messaging than legal analysis and has now been abandoned. The impeachment articles don’t accuse Trump of any criminal violation. While impeachment does not require a charge of criminal misconduct, its absence impacts the gravity of the impeachment case and makes it more difficult to specify objective criteria for impeachment.

Democrats finally settled on charging Trump with “abuse of power” on the basis that he subordinated the national interest to his personal political interests. There is disagreement over whether abuse of power can be grounds for impeachment. Even if it can, this charge lacks objective criteria or limiting principles. One law professor called by House Democrats testified that if Trump’s conduct here is not impeachable then “nothing is impeachable.” The opposite is closer to the truth. Obviously, presidents regularly take controversial actions and factor in political considerations. If Trump is impeachable based on the charges here, any action by a president that his opponents regard as politically expedient and contrary to the national interest as they see it could potentially constitute an impeachable offense.

Charging Trump with “obstruction of Congress” has potential merit but is premature.

Article II of the impeachment articles charges Trump with “obstruction of Congress.” This second article may have more merit than the first. Trump’s attempt to totally stonewall the House impeachment inquiry surely can’t be legal. On the other hand, a president just as surely has legal privileges that can be raised in response to congressional demands for testimony and documents in an impeachment (or other) investigation. Thus, Trump cannot reasonably be faulted for failing to comply automatically with any and all such demands. Ultimately, only the courts can authoritatively strike the proper balance in these situations.

Since Democrats generally declined to seek enforcement of their demands in court, there is no objective means to draw the line between unjustified obstruction and legitimate privilege claims. The obstruction charge would be much stronger if Trump had defied congressional demands for testimony or documents in violation of a final judicial determination upholding their legitimacy.  

Conclusions

Three bottom line conclusions emerge when the facts developed to date are stripped of exaggeration and hyperbole:

• If simply requesting a foreign leader to conduct an investigation potentially impacting an election opponent is grounds for impeachment, there is uncontroverted, direct supporting evidence.
• If the case for impeachment depends on Trump using a White House meeting for Zelensky as a quid pro quo for the investigations, there is indirect supporting evidence. It’s reasonable to attribute to Trump the actions of his personal attorney and political appointees.  
• If the impeachment case depends on Trump using military aid as a quid pro quo for the investigations, it is unsupported and even undercut by the available evidence. While Trump’s hold on aid may have been based in part on his distain for Ukraine, it was never part of negotiations with the Ukrainians over the investigations.

Turning to the legal grounds, there’s little consensus on exactly what constitutes impeachable “high crimes and misdemeanors.” However, a 1974 bipartisan analysis prepared by the House Judiciary Committee staff in connection with the Nixon impeachment observed that impeachment of a president is “a grave step for the nation.” Clearly, such an extraordinary action requires extraordinary and egregious presidential misconduct.

It’s hard to see how merely requesting an investigation involving Biden could rise to the level of an impeachable offense. There’s nothing inherently wrong with a president requesting a foreign government to conduct an investigation involving an American citizen and no reason why a political rival would be immune from investigation. In this case, a broad-based investigation of Ukrainian corruption would have included Burisma and quite possibly the actions of one or both Bidens as well, which had raised eyebrows. The problem is that Trump singled out Burisma and the Bidens.  This was certainly unwise in the absence of a specific indication that either Biden did anything wrong, but it was not totally unfounded or outrageous.

It’s also hard to see how conditioning a White House meeting on such a request would push it to the level of an impeachable offense. Presidents frequently use state visits and other diplomatic leverage to influence the behavior of foreign leaders. Indeed, Joe Biden threatened to withhold foreign assistance to Ukraine in order to pressure its government to fire a former prosecutor.     

The strongest case for impeachment would be if Trump demanded that Zelensky produce negative information on Biden and used military aid as a quid pro quo to enforce this demand. However, the evidence supports neither of these conclusions.

This is not to suggest that Trump did nothing wrong. Whatever his motives, it’s clear Trump was pursuing a self-serving agenda of his own that had little if any relationship to U.S. policy interests regarding Ukraine, as generally understood, and threatened to undercut those interests. This came at a time when Ukraine was (and still is) vulnerable to Russian aggression and in need of a strong showing of U.S. support. Trump’s investigative requests appear frivolous and perhaps vengeful in the case of 2016 election interference as well as seriously ill-advised in the case involving the Bidens. As such, they deserve criticism and maybe even condemnation. However, the framers of the Constitution made clear that “maladministration” does not constitute grounds for impeachment. Poor judgment, foolishness, selfishness or generally bad behavior are not enough for impeachment. Of course, they are highly relevant to electability.

Speaker Nancy Pelosi has delayed submission of the House-passed impeachment articles against President Trump to the Senate. Reportedly, this is based in part on advice from Harvard law professor and prominent Trump resister Laurence Tribe. The ostensible reason for the delay is concern, arising from statements by Mitch McConnell and others, that the Senate will not give the articles fair and impartial consideration. It’s somewhat surprising that House Democrats would expect anything but a partisan Senate response to their partisan impeachment. In any event, if Pelosi’s delay is indeed Tribe’s brainchild, the real motive is quite different.

For a long time, well before the Ukraine issues arose, Tribe has been urging Democrats to find a way to effectively impeach Trump while denying him the ability to defend himself in a Senate trial. Tribe’s original proposal was for the House to pass a simple resolution declaring Trump “guilty” of impeachable offenses, an action that would not involve the Senate. (See here for a description and critique of the proposal.) Tribe reasoned that this action would be “deliberately stigmatizing” to Trump by branding him with a “Scarlet I” of impeachment that he would be forced to carry through the 2020 election. The beauty of it, Tribe suggested, was that Trump would have no opportunity to shed his Scarlet I through the “misguided” and “old school” process of a Senate trial called for by the Constitution.

Tribe’s original proposal gained little traction. This is fortunate since it so obviously flouted the Constitution as well as basic considerations of due process and fairness. Unfortunately, Democrats now seem to be thinking of resurrecting it in a slightly different form by attempting to postpone a Senate trial on their impeachment articles indefinitely. This may be a “hail Mary” maneuver that will prove too outrageous to pull off. However, the fact that it is apparently receiving serious consideration doesn’t speak well for the bona fides of this impeachment effort.       

Assessments of the impeachment case against President Trump based on the so-called “Ukraine affair” rest mainly in the eyes of fiercely partisan beholders. Most evidence amassed thus far is subject to diametrically opposed interpretations. A prime example is Trump’s either “perfect” or virtually criminal July 25 phone call with Ukrainian President Zelensky. For pro-impeachers, led by House Intelligence Committee Chair Adam Schiff, the rough summary of the conversation demonstrates a corrupt “quid pro quo,” even amounting to bribery, whereby Trump conditioned military assistance for Ukraine on Ukrainian investigations of Trump’s political opponents, primarily Joe Biden. In Schiff’s embellished telling, Trump clearly demanded that Zelensky find (or even fabricate) negative information about Biden:

“I hear what you want. I have a favor I want from you, though and I’m gonna say this only seven times, so you better listen good . . . I want you to make up dirt on my political opponent, understand? Lots of it… on this and on that.”  

Trump and his anti-impeachment defenders maintain that the summary contains no hint of a quid pro quo.

This dichotomy carries over to the recent public hearings. Pro-impeachers in the House and the media portray the voluminous testimony as a steady stream of “bombshells” producing mountains of evidence against Trump. Anti-impeachers consider the hearings a boring amalgam of nothingburgers. As the New York Times’ Peter Baker observed:

“[L]istening to Republicans and Democrats, or their friendlier media, would give the impression of two radically different sets of hearings, one that presented damning, incontrovertible evidence that the president abused his power or one that revealed that the whole proceeding was a partisan sham.”

An excerpt from the November 20 hearing illustrates how even seemingly minor points are magnified through very different lenses. The excerpt is an exchange between Daniel Goldman, Schiff’s counsel, and witness Gordon Sondland. It involves what Rudy Giuliani, Trump’s personal lawyer, allegedly insisted Zelensky must do to gain his meeting with Trump:

Goldman: “Now, for Mr. Giuliani by this point, you understood that in order to get that White House meeting—that you wanted President Zelensky to have and that President Zelensky desperately wanted to have—that Ukraine would have to initiate these two investigations. Is that right?”

Sondland: “Well, they would have to announce that they were going to do it.”

Goldman: “Right. Because Giuliani and President Trump didn’t actually care if they did them, right?”

Sondland: “I never heard, Mr. Goldman, anyone say that the investigations had to start or had to be completed. The only thing I heard from Mr. Giuliani or otherwise was that they had to be announced in some form and that form kept changing.”

Media outlets including the New York Times, the Washington Post and Vox seized upon this exchange as another “bombshell” and a major takeaway from Sondland’s testimony. They said it proved that Trump had no genuine interest in Ukrainian corruption and viewed the mere public announcement of an investigation involving Biden as sufficiently damaging to him. Pro-impeachment pundits joined this echo chamber. For example, the Post’s Eugene Robinson wrote:

“The most devastating part of Sondland’s testimony, for me, was when he said that Trump wasn’t actually interested in having the Ukrainians unearth any new information. He just wanted Biden smeared.”

But Sondland said nothing of the kind. It was Goldman who asserted that Trump didn’t care whether Ukraine actually conducted the investigations, as he tried to put words in Sondland’s mouth. Moreover, this assertion is at odds with a straightforward interpretation of what Giuliani was demanding, according to Sondland.

On the face of it, Giuliani’s message as described by Sondland simply meant that Zelensky’s public commitment to conduct the investigations was sufficient to earn his meeting with Trump–not that it needn’t be followed up by the actual investigations. Indeed, the public announcement was a safeguard to ensure that Zelensky did not renege on his commitment and would in fact conduct the investigations. Sondland confirmed this later in his testimony: “The way it was expressed to me was that the Ukrainians had a long history of committing to things privately and then never following through.”

Finally, Goldman’s assertion not only misrepresents Sondland’s testimony but also contradicts his boss. As noted previously, Schiff’s argues that Trump very much did want the investigations to go forward to produce “dirt” and “lots of it” on Biden.

This example is just one small episode from the impeachment drama. (Future posts will address impeachment more broadly.) However, it shows how readily partisans will run with and even distort anything that superficially appears to support their preconceptions without pausing to engage in the slightest critical analysis.