It’s running the risk of becoming cliché to suggest that the media will turn the investigation into the White House using foreign policy leverage to coax other nations into digging up scandal on Joe Biden into a discussion about “how exposed is Joe Biden.” Except, of course, it’s actually already happening because the news cycle is dumb.
Now the drive to churn content on this nascent impeachment inquiry is forcing reporters to look for angles and narratives where none should exist. Take this article in Roll Call, where we’re asked to consider if House Democrats are making a dangerous investigatory mistake in acting… like every litigant ever.
Despite some public pressure from the fringes, impeachment was mostly a dumb strategic move for Democrats over the past few years — the Russia inquiry involved claims that were thoroughly litigated in the court of public opinion and the public mostly didn’t care. In that world, going down this road only served to give Trump the acquittal and “exoneration” he desperately craved. The latest allegations, involving military aid and potentially toying with trade policy, are markedly different than pee tapes and porn stars. With the Democrats taking this endeavor seriously, they’ve also adopted the professional approach any legal inquiry would bring.
Trump’s folks have mostly tried to stymie the investigation and ignore or attempt to quash subpoenas. In the face of these delay tactics, Democrats have warned Trump’s people that withheld evidence will likely earn an adverse inference.
For the less politically inclined, this is exactly what happened to Tom Brady in Deflategate when he admitted that he’d destroyed the phone that allegedly held problematic texts.
And that’s the point: this is how this is handled all the time in the law. It is in no way controversial — if this evidence is being withheld for the seeming purpose of obstructing the probe, it can and should earn an adverse inference. If the administration doesn’t like that, then they should turn the stuff over. Full stop.
And yet….
But an adverse inference shortcut could also be a pitfall.
Just because House Democrats want to infer that missing evidence is bad for Trump doesn’t mean the public opinion will go along with it. And it probably won’t go over well with Republican senators who would vote on the articles of impeachment, either.
First of all, is this article trying with a straight face to argue that but for adverse inferences, Republican senators would vote to convict? Trump could, as he’s suggested, shoot someone on Fifth Avenue and the GOP wouldn’t abandon him — at least not in the numbers necessary for any of this to matter.
But more importantly, maybe don’t call the evidentiary concept of an “adverse inference” a “shortcut” or suggest it runs contrary to “fair and legitimate investigation.” Not only is it plainly wrong, but it undermines the way courts in this country operate every day. This doctrine exists because it’s sound and fair and the only way to guarantee litigants don’t just refuse to produce anything at all. The people trying to undermine and obstruct are the people actually jeopardizing the legitimacy of any investigation.
Ultimately, the impeachment trial itself is a waste of everyone’s time, but a long, thorough investigation isn’t. That will matter for a long time to come. If the House has to style it as an impeachment inquiry to get there because Trump’s lawyers complain that subpoenas lack a “legislative purpose,” so be it. But ensuring the investigation is professional and legally sound is what truly matters.
In other words, this is about process not outcome, so let’s spare everyone all this fretting about the likelihood of Trump’s removal and just let lawyers do their jobs.
House Democrats enlist risky legal move in impeachment probe [Roll Call]
Earlier: Impeachophilia: The Democrats’ Futile And Self-Destructive Attraction To Impeachment
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.