THE FACTS, THE LAW AND . . . THE CHECKERED FLAG

OCTOBER 31, 2019 – Every legal case has two parts—facts and law. Sometimes the facts are in the bag: the other side is blind, deaf, and dumb regarding the facts OR both sides stipulate to the facts. The case then turns on the law—given irrefutable or stipulated facts, how should the law be applied?

From what’s transpired lately in Washington, here’s my take of the impeachment case against Trump.

House Democrats have bagged the facts. Republicans are playing blind, deaf, and dumb.  The facts, are plain, simple, and irrefutable. The question of law is simple: does applying the power of the presidency to get a foreign power to “dig up dirt” on a domestic political rival constitute a “high crime and misdemeanor”? Does it matter whether the supposed “dirt” is real? Does it matter whether the pressure worked?

Democrats argue that what Trump did constitutes an impeachable offense, irrespective of the reality of the “dirt” and regardless of whether the ploy worked. Their reasoning: because the act was an attempt to cause a foreign power to interfere with our electoral process, the act undermines our democracy in the most fundamental way feared by the Framers.  If impeachment isn’t pursued, how high will the bar for impeachment have to be in the future; how will more such behavior by the incumbent be deterred?

Republicans should stipulate to the facts and argue the law—that the “dirt” was of no political value; that the pressure didn’t produce the desired effect; accordingly, the act doesn’t rise to a “high crime” level.  We must be extremely wary of depriving citizens the right to remove or re-elect the president in the next election. If we impeach over this, how low will the future bar for impeachment be; how will fear of impeachment limit the hand of future presidents?

Here’s the likely outcome: the House will impeach; the Senate will not convict.  Trump will call it “exoneration.” His base will knock the roof off rallies. Consistent with his long-established behavior, Trump will defy all limits to get himself re-elected. He will be re-elected—either because Democrats falter miserably in the many ways they’ve proved themselves capable, or the race will be close enough that Trump will stomp on the accelerator of impropriety to get himself across the finish line first.

If I’m wrong on impeachment—the Senate votes to convict, can you imagine Trump (and his base) going quietly? Neither can I. If I’m wrong about his re-election, same question—can you imagine Trump (and his base) going quietly? Neither can I.

Bottom line (signaled by the checkered flag): House Democrats, given the facts and their interpretation of the law, have no choice but to impeach, and Republican Senators, beholden to their base, have no choice but to interpret the law to justify a vote of acquittal. We the people will have no choice but to gird ourselves for the bumpiest political days of our Grand Old Republic.

Let’s hope it survives intact.

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© 2019 Eric Nilsson