JANUARY 31, 2020 – Yesterday evening I listened to the Q&A portion of the impeachment “trial” in the Senate. Then came Senator Lamar Alexander’s announcement.
As I peer into our country’s political future, I see serious trouble. The sad thing is, we’ve become so lost, so divorced from facts, truth, and reason that none of us will even find vindication in the phrase, “I told you so.” That phrase has been displaced by denial and “fake news,” even in the face of the starkest realities.
Republican Senators abdicated their Constitutional responsibility to hold a fair trial and check the unbridled power of the presidency. They also disregarded their political responsibility to protect our electoral process and national interests.
An ironic shadow over the proceedings was cast by the president’s lawyers. Hired guns, they turned words into pretzels and dispensed them as arguments. That is what lawyers do when the facts and the law are against them. Driven by lucre and “zealous advocacy” (an ethical standard that borders “bad faith” territory), those lawyers pound away with pretzels. Blinded by myopia, Republican Senators readily accept the pretzels. In so doing, they will transform our future into a de facto dictatorship—thanks to the lawyers’ script.
I’m not a criminal law attorney, but often I’m asked on the heels of some sensational crime, arrest, or trial involving an abundantly bad actor, “So how could you defend someone you know is guilty?” Early in my career, I learned how to answer that question: “I’d be defending a system of justice, the cornerstones of which are chiseled into the Bill of Rights. In every case, it’s that system that’s on trial, and it deserves—nay, demands—a zealous defense.”
The irony in the impeachment proceedings is that lawyers, schooled and practiced in the American system of jurisprudence, were hired to destroy that very system of justice; to dissemble major elements of our Constitution—the impeachment clause and checks and balances between the executive and legislative branches of government.
After doing mortal injury to the system that produced them, those same lawyers will now laugh their way to the bank—assuming they insisted upon hefty retainers.
But irony is an equal opportunity employer.
When considering an appeal from an adverse lower court decision, a litigant often has to consider the risk of not only losing the appeal, but worse, “making bad law.” That is, by fighting on and losing, the party might well wind up adding insult to injury—a harmful legal precedent for the party’s broader interests.
Likewise, here. By pursuing impeachment, however justifiably from a Constitutional standpoint, the Democrats ran a substantial and foreseeable risk of “making bad law.” Knowing full well that they faced a Sisyphean task before a Republican-controlled Senate, they proceeded anyway, creating really bad law in the wake of their doomed prosecution.
They lost, and in doing so, lost twice.
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© 2020 by Eric Nilsson
