The Collapse of the President's Defense - By Benjamin Wittes

https://www.lawfareblog.com/collapse-presidents-defense

excerpt:

"Hamilton’s point was that guilt or innocence might be not be dispositive in impeachment trials. It was not that guilt or innocence doesn’t matter in the face of political power. There’s a temptation to conflate these two points. If the president’s defense has crumbled but that fact will not trigger his removal, does it even matter? In fact, the crumbling of the president’s defense matters a great deal—even if the wall ultimately holds, even if a large segment of the public refuses to engage that reality and even if a large cadre of elected officials chooses to keep escalating the noise instead of either accepting Trump’s guilt or mounting a substantive defense of his actions.

The collapse matters—even if it does not prove dispositive politically—because persuasion matters and thus persuasiveness matters. The last line of defense against a lawless, oathless president is the electoral process, and clarifying Trump’s conduct before the electorate is thus crucial to voters’ ability to make informed decisions. The process of evaluation itself also plays an important role here. The definition in the minds of members of Congress of what is unacceptable helps to articulate and reinforce norms of behavior. In a period in which we are fighting to defend norms, that articulation and reinforcement is a critical exercise.

It’s a little harder to violate a particular norm of behavior once you have publicly voted to impeach someone for it—not impossible, to be sure, but harder. Conversely, argue that conduct is acceptable or tolerable in a president, and it becomes a little easier to do it yourself. It is a notable fact that Democrats have not, by and large, argued for Trump’s impeachment based on his conduct—very likely criminal—in the Stormy Daniels and Karen McDougal matters. Having argued during Bill Clinton’s tenure that crimes undertaken to cover up mere sexual misconduct are not impeachable, Democrats are staying away from that one.

We can hope that something of the opposite effect is happening here: If the only consequence of going through this process is to make it a little harder for some Democratic president in the future to emulate Trump’s ongoing abuses of foreign policy and law enforcement in the service of political ends—because essentially all Democrats will have labeled the conduct as impeachment-worthy—that alone will be worth the process the country is going through now."


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