Fintan O’Toole

Whatever He Wants

What kind of spectacle is the impeachment trial before the Senate of Donald J. Trump? In its opening days, the audience was given two wildly different but equally bathetic prompts as to how we should see it. We were invited by two central figures to understand it, on the one hand, as a proceeding of exquisite gravity and, on the other, as a bad TV show. For its presiding officer, Chief Justice John Roberts, the trial ought to be imagined as an earnest weighing up of truth and lies by a most august assembly. Near the end of the first long day’s session, he admonished Trump’s prosecutors and defenders “to remember that they are addressing the world’s greatest deliberative body.” To give them a sense of the standards that used to apply in such proceedings, he referred to the impeachment of a judge, Charles Swayne:

In the 1905 Swayne trial, a senator objected when one of the managers used the word “pettifogging” and the presiding officer said the word ought not to have been used. I don’t think we need to aspire to that high a standard, but I do think those addressing the Senate should remember where they are.

But we do not need to go back to 1905 to be reminded where we all are now. On the morning of the second day of the trial, its central figure, Trump himself, issued a decorous tweet:

After having been treated unbelievably unfairly in the House, and then having to endure hour after hour of lies, fraud & deception by Shifty Schiff, Cryin’ Chuck Schumer & their crew, looks like my lawyers will be forced to start on Saturday, which is called Death Valley in TV.

The fall from a discourse in which “pettifogging” might sound like an unseemly breach of high civility is vertiginous, but this is also a shift of genres. Roberts wished to dress the senators in togas and place them in a historical drama, leaning forward with their hands on their chins, as if listening intently to Cicero or Seneca. Trump’s complaint was that his wrestling match against Shifty Schiff and Cryin’ Chuck would be shown in a crappy television time slot.

Everybody knows that Trump is much nearer the mark. For all of Roberts’s grandiosity, the idea of this Republican-controlled Senate as the world’s greatest deliberative body—ludicrous at the best of times—is being relentlessly undermined by the very proceedings he is presiding over. It has been clear even before this trial began that it is, for the majority of senators, an exercise in self-abasement by what is supposed to be a mighty force for holding the executive to account. As Mitch McConnell told

Sean Hannity on Fox News in midDecember, the Republican majority has positioned itself merely as an arm of the presidency: “I’m coordinating with White House counsel. There will be no difference between the president’s position and our position as to how to handle this.”

The chief justice’s imaginary togas do not really cover the naked determination of that majority to make the Senate subservient to the president’s desires. The institution as a whole has no intention of asserting its own dignity. Rather wonderfully the trial memorandum submitted by Trump’s lawyers, maintaining the fiction that the president’s attempted shakedown of the Ukrainian government was really a crusade against graft and impunity, states that “Ukraine cannot rid itself of corruption if its prosecutors are always stymied.” The purpose of the Senate majority in this trial is to substitute “the United States” for “Ukraine” in this sentence, and to make it clear that stymying prosecutors is no bad thing. Thus the real genre of these proceedings is the playing out of a foregone conclusion. This is a show trial with a twist—a public ritual not of preordained condemnation but of preordained exoneration. While in his opening speech Adam Schiff, the lead manager of the prosecution for the House of Representatives, made much of appeals to the open-mindedness and fairness of the senators, this too was for show. As Schiff himself put it, the unavoidable truth is that “the president will be acquitted, not because he is innocent—he is not—but because the senators will vote by party, and he has the votes.” “Let the jury consider their verdict,” says the King in the trial scene in Alice in Wonderland. “‘No, no!’ said the Queen. ‘Sentence first—verdict afterwards.’” With Trump’s trial, there is a refinement on this order: verdict first, trial afterwards, sentence never.

That much is obvious, and no amount of phony stateliness can distract from it. But there is a more interesting question. If you are going through the motions, you can still give those motions some appearance of reality. Foregone conclusions, after all, do not necessarily vitiate the drama. We know full well that Oedipus will discover that he killed his father and married his mother; we know that Macduff will kill Macbeth in the end. It doesn’t bother us—we can still become emotionally engaged in the performance. The Republicans could have done something similar. They could have presented a pretense with some appearance of conviction. They could have put on the show that Roberts expected: an impersonation of senatorial dignity. The question is why they chose not to do so. Indeed, one might think that the more preordained the conclusion, the greater would be the need to give an appearance of genuine deliberation. Imagine, after all, that you are a corrupt judge who has agreed in advance of a trial to acquit the accused regardless of the evidence. Would you not then be especially careful to maintain the appearance of serious inquiry and honest judgment? Would you not wish to be seen to listen carefully to the witnesses and thoroughly examine the documents? You would do this for two good reasons: to maintain your own veneer of dignity and to make the inevitable exoneration seem credible. The Senate majority may be too far gone in sycophancy for the first to apply, but the second is surely (from a Republican perspective) highly desirable. All political logic in this election year would point toward the value of Trump’s being able to say that he was vindicated in a serious and proper trial. The irony of senatorial toadying is that it will actually deprive this claim of any semblance of plausibility to wavering voters.

Even in a cynical pursuit of political advantage, the Republicans might have maintained the form of a real trial (scrutiny of verbal and written evidence) without its substance (a genuine weighing of guilt and innocence). They decided instead to have neither the form nor the substance. Because the Senate’s proceedings do not look much like a trial, its declaration of Trump’s innocence on both charges will not look much like a vindication. Whatever Roberts would like to imagine, the Republicans are not even bothering to keep up appearances.

The question, though, is, Why not? And the answer is both significant and disturbing. It is because the point of the trial is not just to vindicate Trump. It is to vindicate Trumpism, to normalize not just Trump’s conduct in relation to Ukraine but the whole style of authoritarian conduct of which it is but one— albeit egregious—example. The order of the Senate’s proceedings—verdict first, then trial—mirrors the order of the norms Trump has established in his administration: presidential fiat first, then a show of deliberation. It thus extends the distortion of the executive branch of government into the deliberative branch and even, in the arguments of Trump’s lawyers, into an understanding of the Constitution.

The House indictment of Trump is based on two intertwined democratic assumptions: evidence and accountability. In a well-functioning democracy,

decisions are made and implemented on the basis of some evidence about their effects. This is what allows for those making the decisions to be held accountable—without evidence, there can be no scrutiny. Trump accepts neither evidence nor accountability. The only force that matters is his own will. In a video clip played by Schiff on the first day of the hearings, Trump tells an audience, “Then I have an Article II [of the Constitution] where I have the right to do whatever I want as president.” The reason why evidence is irrelevant to Trump’s trial is not just that the evidence itself is inconveniently damning. It is that this doctrine of the president’s will as the source of all authority must not be undermined by the manner of the trial. At the heart of Trump’s defense is the justification that underlies all authoritarian rule. The leader is special. He is not like us because he has unique instincts. His gut (or divine inspiration or mystical ability to discern the true will of the people) leads him to make the right call. And the gut cannot be questioned: the job of everyone else in government is to accept what the leader does first and find the reasons for it later.

The first article of faith in the Church of Trump is that Trump is genetically superior, and this superiority manifests itself in his intuitions. Peter Navarro, whom Trump brought into the White House in 2017 as his adviser on trade policy, told Bob Woodward that the president’s intuition on trade is “always right” and that the job of the people around him is thus to “provide the underlying analytics that confirm his intuition.” The former presidential aide Cliff Sims uses a similar phrase, writing of how Trump’s chief aides “built the intellectual framework that turned Trump’s raw, gut instincts into actual policy positions.” He admits that he fed Trump certain newspaper articles “for one reason only: to tell him he had been right about something .... I’d print it out, write a little note on it that said, ‘You were right about this.’” Instinct first, supporting evidence later.* This has a heavy bearing on the Senate trial because at its center is the contention—which will almost certainly be upheld by the Republican majority— that what goes on in Trump’s mind, and indeed in his gut, is literally unquestionable. It cannot be scrutinized, even by the Senate itself. The nub of the Ukraine issue is that, in the words of the House indictment, “President Trump illegally withheld $391 million in taxpayer-funded military assistance to Ukraine that Congress had appropriated for expenditure in fiscal year 2019.” But what makes this illegal is not in itself the withholding of the aid. It is the reason for that threat: Trump did it to try to force the new president of Ukraine, Volodymyr Zelensky, to announce an official investigation into allegations that former vice-president Joe Biden had sought the removal from office of Ukraine’s top prosecutor in order to protect Burisma, the energy company on whose board Biden’s son Hunter then served. This cooked-up scandal, in turn, was intended to interfere in the 2020 presidential election by smearing Joe Biden as a crook.

*For a wider discussion of this principle see my article in these pages, “The King and I,” March 21, 2019.

There is no serious doubt that Trump did that. But the grounds on which he will surely be exonerated are also not in doubt. The Senate majority will accept Trump’s case. That case, in essence, is not that Trump did not freeze the $391 million. It is that the reasons why he did so are beyond scrutiny. A president might have good reasons for withholding aid—if, for example, there was evidence that the money was being siphoned off into foreign politicians’ bank accounts or if the military being supported by the aid was committing atrocities. The abuse of power is all about the motivation. Why did he do it? Trump’s case, which the Senate will surely adopt, is: none of your business. Here are the crucial passages in the Trump legal team’s trial memorandum:

House Democrats’ theory in this case rests on the radical assertion that the President could be impeached and removed from office entirely for his subjective motives—that is, for undertaking permissible actions for supposedly “forbidden reasons.”. . .

House Democrats’ conception of “abuse of power” is especially dangerous because it rests on the even more radical claim that a President can be impeached and removed from office solely for doing something he is allowed to do, if he did it for the “wrong” subjective reasons. Under this view, impeachment can turn entirely on “whether the President’s real reasons, the ones actually in his mind at the time, were legitimate.” That standard is so malleable that it would permit a partisan House—like this one— to attack virtually any presidential decision by questioning a President’s motives. By eliminating any requirement for wrongful conduct, House Democrats have tried to make thinking the wrong thoughts an impeachable offense...making impeachment turn on nearly impossible inquiries into the subjective intent behind entirely lawful conduct. [emphasis in original]

That is nonsense—motivation and action simply cannot be separated in this way in the use of governmental power. If a public official awards a contract to a private company, the nature of the act is determined by its motives: Was the decision based solely on the public interest or was that official getting a kickback? The Trump case would make any kind of inquiry into allegations of bribery impossible: so long as there was no law against the thing that was being done, the subjective motives would be irrelevant. But what is particularly resonant here is the notion that “inquiries into subjective intent” are “nearly impossible.” That “nearly” may suggest some hesitation on the part of Trump’s lawyers, but it does little to soften the point: when Trump decides something, no one can question what is going on in his mind, or in his gut. A veil of mystery must remain before the workings of the great leader’s inscrutable desires. They are unfathomable— and therefore unaccountable.

Such a contention goes further even than Richard Nixon’s infamous justification for his authorization of wiretappings, burglaries, and other black operations against anti-war groups and other enemies. David Frost asked Nixon in 1977, “Would you say that there are certain situations . . . where the president can decide that it’s in the best interests of the nation, and do something illegal?” Nixon replied, “Well, when the president does it, that means it is not illegal.” Trump certainly makes a similar claim, and his sweeping assertion of executive privilege is centrally at issue in the trial. But even Nixon was claiming public motivations that could in principle be subjected to scrutiny: the nation is in danger so I must act. Trump is denying the existence of any constitutional limits on his pursuit of his private goals. In principle, Congress

could judge Nixon’s motives and say that “the best interests of the nation” did not justify his actions. Trump claims, in effect, that no one at all is in a position to judge his motives. His subjective desires are outside the field of accountability—even when they lead him to threaten foreign governments and subvert the democratic processes of the next presidential election. The president cannot be removed from office for abusing his power in order to achieve a private end because his private ends are almost impossible to determine and thus off limits.

This is profoundly autocratic. The essence of dictatorship is that the leader’s desires cannot be outside the law because they are the law. Trump’s defense does acknowledge that there are laws and that he is bound by them. But it severely limits the scope of this concession by claiming that it only applies when there is an explicit legal prohibition on the act itself. If withholding military aid to the government of Ukraine were on the statute books as a crime, Trump couldn’t do it. But since it is not, he can freeze aid to Ukraine for any reason, public or personal, and cannot be accused of an abuse of power. On this doctrine, Congress would have to think up all the things that Trump might do for arbitrary and unknowable reasons and make them crimes. Otherwise, he is untouchable.

However the show now unfolds, the Senate majority will ultimately vote to endorse this notion. It will uphold not just Trump’s conduct in relation to Ukraine but the principle that the great leader’s instinctive motivations are above the law. What is happening here is the leaking out of the principles that operate within Trump’s own court into the other branches of government: Trump is always right, and the job of everyone else in government is to “provide the underlying analytics that confirm his intuition.” The sin of Marie Yovanovitch, the career diplomat who was removed as ambassador to Ukraine on Trump’s orders, was not to understand or accept this order of priority. It is clear that almost all Republican senators are determined not to make the same mistake. They have learned the drill: their job is to legitimize Trump’s instinctive pursuit of his own private interests through the use of public resources and state power. The Senate is supposed to be acting as a kind of court. But it is showing itself to be a court in a different sense: almost all Republican senators are now quite openly behaving as courtiers. It is impertinent for courtiers even to go through the motions of putting the monarch on trial. They cannot be seen to consider evidence because that would imply that there is some objective reality against which Trump’s motives could be measured. They cannot even pretend to deliberate because that would imply that deliberation can hold its own against the imperative of Trump’s will. They cannot question what the president has done because that would violate the principle that his reasons are unquestionable. What is lost for them and for Trump in this process is any possible claim that the president has been vindicated by a genuine trial of the evidence against him. What is gained is the assurance that, if Trump wins a second term, he can indeed do whatever he wants. n —January 30, 2020