To use the language of civil trials, House Democrats have brought a complaint to the Senate that President Donald Trump deserves removal from office and Trump’s lawyers have countered that the complaint fails to state a claim and so must be dismissed.
Trump’s lawyers have the better argument.
The Democratic complaint — articles of impeachment for abuse of power and obstruction of justice — makes only an ad hominem argument. Such an accusation that a person inherently lacks credibility proves nothing. It only defames. It is a pseudo-argument masquerading as a revelation of truth.
Every ad hominem attack is a logical failure. Attacking the person does not address the truth or falsity of his or her narrative. Ad hominem attacks seek to persuade through inference: We are to infer that a bad person can’t or won’t tell the truth.
The form of an ad hominem accusation is this: You are a bad person; you have bad motives; therefore, nothing you say is right. We hear a lot of those arguments these days.
But a good person can lie and a bad person can tell the truth.
The sum and substance of the Democrats’ articles of impeachment are that Donald Trump is: 1) a “dictator” (Rep. Jerry Nadler); or 2) a “danger to our forthcoming presidential election” (Rep. Adam Schiff).
These accusations demean Trump’s character, no more than that. They do not disprove his version of events.
The ad hominem presumption that is the Democrats’ complaint against Trump — that he is a bad, vulgar, selfish, exploitative bully of a man — doesn’t prove their impeachment accusations. That is why they desperately demand more witnesses to add probative facts in the trial before the Senate.
Jumping on the fallacious nature of the guilt presumed by the impeachment articles, Trump’s lawyers provided reasons why those articles should be summarily dismissed. They made two sound arguments: 1) the articles of impeachment do not comply with due process; and 2) the conduct alleged does not constitute “high crimes and misdemeanors.”
The failure of due process argument has three parts. First, the presentations to the Senate made by the Democratic Party managers were fraudulent. They failed to include material statements of fact known to the managers.
The next failure of due process was the refusal of the Democrats during the House investigation to permit Trump to call his own witnesses to the stand and to allow him to have benefit of counsel.
The third failure of due process was vagueness — Trump had no prior notice of what constituted an impeachable offense.
The second argument from Trump’s lawyers was that his actions with respect to Ukraine were legitimate exercises of his powers to set American foreign policy, no matter what subordinate officials might have liked. In other words, he was acting in the national interest as he understood it.
To be sure, one of Trump’s attorneys, Harvard Prof. Alan Dershowitz — embarrassingly for me as he was a teacher of mine for one course — wrongly argued that “high crimes and misdemeanors” refers only to acts which are criminal. To his fault, “Dersh” (as we called him then) simply ignored the very precise definition of “high crimes and misdemeanors” provided by Alexander Hamilton in the Federalist Papers as including abuses of powers given to the president to hold in trust for public benefit.
As Hamilton understood, an impeachment is a proceeding to remove a fiduciary — a public servant — from his or her position for failure of loyalty or want of due care in the execution of an office. This is more a civil proceeding than a criminal one.
And in civil cases, no American has a right to bring another to trial unless he or she can come up with a persuasive statement of the wrong to be redressed.
The fatal weakness of the Democrats impeachment effort is reliance on an ad hominem attempt at persuasion. Such accusations do not deserve to be heard at trial.
Sadly, ad hominem sophistry is now the conventional rhetoric of our supposedly well-educated cultural and political elite. Identity politics, intersectionality, political correctness and the cancel culture value only narrative or discourse, not truth. We tell stories about each other and ourselves, morality tales wherein some are good and others are bad. We have come to mistakenly think that a story is true depending on the character of the storyteller. Good people are presumed without evidence to be more truthful than bad people.
Thus, the Washington Post reports that Donald Trump has “lied” more than 16,000 times since becoming president; and, for a long while, took it as revealed truth that Trump “colluded” with the Russians to steal a presidential election.
For Trump, for his part, bad people in the news media and among Democrats peddle “fake news” and “hoaxes” — narratives disconnected from truth. Yet Trump blissfully tells his own tales and expects us to believe them.
Everywhere we turn, more and more we hear only stories — some are likely true; others are just tall tales; and some really are lies. We now all seem to agree to live in the post-truth age.
That is national suicide.
Stephen B. Young, of St. Paul, is global executive director of the Caux Round Table, an organization dedicated to promoting ethical capitalism and former dean of Hamline University School of Law.