Jurisprudence

This Impeachment Won’t Be a Legal or Political Battle. It Will Be an Information War.

Republicans are willing to ignore what’s happening because they think they’ll get away with it. They might not be wrong.

Donald Trump speaks during a campaign rally.
President Donald Trump speaks during a campaign rally at the Rupp Arena on Monday in Lexington, Kentucky.
Bryan Woolston/Getty Images

For some time now, legal commentators have been trying to remind us that impeachment is not entirely a legal process but rather a political process dressed up in legal garb. Yes, there are facts to be gathered, and yes, there are impeachable offenses to be probed and proved, but in the final analysis, impeachment is a largely political enterprise, conducted by the political branches, for political ends. Sure, there is plenty of legal jargon and legal-sounding terms, and the White House is sputtering about “due process” as if this were a robbery trial and decrying the entire impeachment process as “the fruit from the poisonous tree,” as if Rep. Adam Schiff had searched Donald Trump’s glove compartment without a warrant. But to the extent Republicans are trying to dismiss the entire probe as unlawful, they are doing so by distorting relevant legal questions into political theater. They know this. That’s why they’re doing it.

Confusing and conflating the legal facts of impeachment with the political facts of impeachment is only the first step in the GOP effort to distort the impeachment process. The follow-up strategy is slowly emerging, and it’s as nihilistic as it is terrifying: The White House and Trump’s Republican defenders seem to understand that this is, at its heart, a messaging war. This is politics in the form of who dominates the airwaves. As such, the thrust of the new impeachment defiance will be to simply deny that any of it is happening in the first place. This isn’t an elaborate attempt to push back or to reframe or to counter the impeachment investigation; it’s a media tactic designed solely to deny its very existence. Wednesday’s revelation that Bill Taylor knew he was dealing with a quid pro quo should be the last nail in the bribery/abuse-of-power coffin. But it won’t be, because none of those concepts even figure in the Republican defense strategy.

Comparisons of the present moment to Watergate all turn on one fact: The Watergate hearings changed public opinion because Americans across the political and ideological divide came together to listen to the testimony and came to believe the truth of what they were hearing and seeing. As the Pew Research Center has chronicled, 71 percent of its respondents told Gallup they watched the hearings live. And as many as 21 percent reported watching 10 hours or more of the Sam Ervin proceedings. There will be no analogue in 2019. Fox News will not be showing gavel-to-gavel coverage of impeachment testimony; it often cannot be bothered to report basic headlines. Sean Hannity isn’t covering the quid pro quo testimony. He’s putting Hunter Biden in the imaginary docks for an imaginary criminal trial. For Americans who live inside the Benghazi Bubble, the twists and turns of Gordon Sondland and Bill Taylor will be irrelevant. And Rudy Giuliani is less the prime mover and Typhoid Mary of the dirt-for-aid Ukraine scandal than he is a jolly talking head, to be relied upon for hilarity and good sound bites.

It’s not just the media rift congressional Republicans are counting on when it comes down to impeachment denialism. As Alex Shepard points out here, in the Watergate hearings, it was less that the media shaped public opinion than that Congress itself did: “It was Congress that influenced the public and led to Nixon’s downfall.” While the Senate hearings themselves “had little effect on perceptions of Nixon’s guilt, they did make impeachment more acceptable … once the clear and convincing ‘proof’ had been produced.” Today, Republicans in Congress are relying not just on a polarized media to enable them to message that everything is a “witch hunt,” regardless of what the testimony and subpoenas reveal. They are also relying upon their own willingness to deny the tangible reality that the hearings are happening, in order to ensure that the hearings don’t appear to be happening.

This is taking various forms, all of them disturbing. Earlier this week, the New York Times reported that the Republican National Committee was paying to generate thousands of calls to the congressional offices of nearly three dozen House Democrats, effectively blocking the phone lines and jamming access to Democratic offices. This isn’t a defense strategy. It’s a commandeering of communications and messaging to create an illusion about what’s happening on Capitol Hill. On Tuesday, Roll Call reported that most House Republicans aren’t even bothering to show up at closed-door impeachment-related hearings in the three committees holding them. While close Trump allies like Reps. Jim Jordan and Mark Meadows try to use the hearings to put the so-called deep state on trial, and some Senate Republicans are planning to use the process to tarnish Joe and Hunter Biden, Sen. John Cornyn called such strategies “a sideshow” and warned the Senate not to “make this any more of a reality show than it’s likely to become.” But the reality show is the destination. The reality show is the singular defense.

And of course, rock bottom for the la-la-la-plug-my-ears-it’s-not-happening tactic came Tuesday night when Lindsey Graham, the lion of the Senate, told CBS News that he won’t even be reading the revised Sondland testimony transcripts House that impeachment investigators released Tuesday, because, in his view, “I’ve written the whole process off. … I think this is a bunch of BS” Nothing to see here, if I refuse to see anything at all. This is no longer a series of process arguments, or a deflection attempting to argue that the whistleblower ought to be named. This is a juror in an impeachment trial denying the legitimacy of the entire process and refusing to even read any evidence adverse to his president’s interests. This is not about “fairness” or about “due process” or the fruit of the poisonous tree. It’s Sen. Graham saying that he will not participate in a constitutional inquiry because he has made the decision that it is illegitimate. If an actual juror announced before trial that he would not be listening to any evidence, he would not be seated. But this is neither a real juror nor a real trial and so the theater of pretending it’s not happening is allowed. It is into this void that Adam Schiff today announced the start of open impeachment hearings, which will begin next week with the former top Ukraine diplomat Bill Taylor, career diplomat George Kent, and former U.S. Ambassador to Ukraine Marie Yovanovitch all testifying.

The unwillingness to engage is not just about a fast impeachment process versus a slow one, or a broad impeachment versus a more comprehensive one. This is becoming a war in which one side will be holding a sustained and focused set of hearings and the other will be pinning all its hopes in an America’s willingness to change the channel. For the most part, as Jason Zengerle notes this week, Schiff has managed to continue to come off as a sober adult even in the face of Republican tantrums. But his challenge in the coming weeks is sure to be maddening: He will be tasked with showing that what is really happening is in fact really happening, in the face of the demented games of reality-denialists who feel they have nothing to lose. Impeachment will not be decided on the merits of whether Donald Trump did anything to demean or betray his high office. It will be fought out on the pixelated battlefield of messaging and meaning, of whose reality is accepted as truth. This is neither law nor politics. It’s WrestleMania where whoever wins gets to decide the future of democratic self-governance.