The funniest part of this CNN scoop is how the strategizing about whether to admit at the trial that there was a quid pro quo is presented as some sort of eureka moment by “legal eagles” Ted Cruz and Lindsey Graham. For months commentators on both sides of the Trump divide made the point that the president would be on much firmer ground legally if he gave up fighting on the facts and focused on fighting on the law. By insisting there was no quid pro quo in the teeth of all kinds of witness testimony he was boxing Senate Republicans in. Better to just say, “Whether you believe there was a quid pro quo or not, it’s clearly not a high crime or misdemeanor that warrants removal.”
And because “high crime or misdemeanor” is such a gassy term, there was really nothing effective Democrats could say in reply.
I was writing about the “bad but not impeachable” defense within two weeks of the Ukraine news blowing up. (I’ve used it in 26 other posts, per a quickie search of our archives.) Trump-friendly lawyers like Andy McCarthy at National Review argued over and over during the process that “bad but not impeachable” was the way to go, since it would give the likes of Collins and Murkowski an easy reason to dispense with the charges instead of having to wade into what Trump may or may not have said about pressuring Ukraine to the likes of Bolton, Mulvaney, Pompeo, and so on.
Evidently it took an idle comment by Adam Schiff during the trial itself to get the Cruz/Graham spidey sense tingling.
On Wednesday, the first day of questioning, while making the case for Bolton to appear as a witness, Schiff inadvertently gave Cruz and Graham an idea. Schiff argued it was necessary to hear from Bolton, since the White House disputed his account.
But what if it didn’t? What if the President’s lawyers simply acknowledged that Bolton’s recollection may be accurate? Why would you need witnesses?
As Schiff spoke, Cruz and Graham immediately looked at each other from their seats in the Senate chamber…
“What if we get the White House to stipulate to this?” Cruz asked Graham in the cloakroom. “Do you think this is something that could get Lisa and Lamar’s vote?”
In other words, the Cruz/Graham innovation on “bad but not impeachable” was simply to apply it not just to the ultimate verdict but to the thorny issue of calling witnesses. If what Trump did wasn’t a high crime or misdemeanor then obviously he should be acquitted, even if the facts set forth by Democrats were true. Annnnnnnnd if what he did wasn’t a high crime or misdemeanor then we shouldn’t really need a full account of what happened from a willing firsthand witness like John Bolton either, should we? Except that’s nonsense: Obviously there are things Bolton might hypothetically have said under oath about the Ukraine pressure campaign that would have amounted to a high crime. If Trump had said something about physically threatening Marie Yovanovitch, for instance, that would have been big news and a potential gamechanger. But Cruz and Graham understood that they didn’t have an impartial jury on either side. What they had in their own caucus was a group of people who wanted to get to acquittal with the least amount of political pain inflicted and needed a fig leaf to do it. So they provided that fig leaf. If what Trump did isn’t impeachable then we don’t need to find out what Trump, er, actually did.
In fact, said Cruz to CNN, he told Trump’s lawyers frankly that it was time to let go of the idea that Trump did nothing wrong. “Out of 100 senators, zero believe you on the argument there is no quid pro quo,” he claims he told Trump’s lawyers. “Stop making it.”
They did stop making it, sort of. One of Trump’s lawyers eventually admitted during Q&A that this matter wouldn’t warrant impeachment even if everything Democrats alleged was true. Cruz and Graham made a shrewd — and really obvious — calculation that the process would go a lot more smoothly if everyone stopped pretending that Trump wasn’t guilty and just let the Senate hand him a farking free pass already. There’s just one wrinkle: The president spent a lot of time since September insisting that there was no quid pro quo and a lot of Republican voters believed him. Monmouth asked about it in January:
Republican voters split 17/70 on the question. Sean Hannity did a segment on his Fox News show nine days ago titled “Trump, Zelensky confirm there was no quid pro quo.” The Dispatch did a head count of Republican senators based on public statements and found that fewer than half were willing to acknowledge that Trump did anything wrong.
— Sarah Isgur (@whignewtons) February 6, 2020
Note that our friend Lindsey, whose cynicism is bottomless, is in the “Trump did nothing wrong” category even though he was allegedly part of the effort with Cruz to get the White House to stipulate to a quid pro quo. In one sense, Cruz and Graham are just doing what lawyers do: Your job is to win the case, and if arguing the opposite of what you were arguing five minutes ago will help you do that then that’s what you should do. But there’s an Orwellian odor to a political effort that spent months trying to inculcate the idea that our leader did nothing blameworthy only to conveniently shift at the last moment in the name of shielding him from accountability. No quid pro quo, no quid pro quo, only a Democrat or human-scum Never Trumpers would believe there was a quid pro quo — and then, as if by magic, “fine, there was a quid pro quo, let’s wrap this up.”
Cruz is going to feel so cheated in 2024, having devoted so much time and energy to trying to ingratiate himself to Trumpers, when they opt for Josh Hawley or Tom Cotton or whoever in the primary instead.
In lieu of an exit question, read this piece by Peter Beinart arguing that the big loser from Trump’s impeachment is Joe Biden. What the process did, notes Beinart, is give Trump exactly the sort of media megaphone to promote the Biden/Burisma matter that the Ukraine quid pro quo was supposed to generate in the first place. I’ve made that point myself, although I’m not totally sold on Beinart’s argument that Burisma news has been a meaningful contributor to Biden’s polling slide. I think that had more to do with Democrats making up their minds and finding Biden to be a lackluster candidate, which he is. If he’s right, though, that the Burisma hype hurt Joe then Cruz and Graham may have inadvertently done Trump a disservice by convincing their colleagues that the Senate didn’t need to hear witnesses. Trump was going to be acquitted no matter what Bolton said (barring a truly nuclear bombshell like the one I imagined above) but the spectacle of Hunter Biden squirming under questioning could have done major, major damage to his father. Eh — given Joe’s polling lately, he’s probably sunk either way.