Jurisprudence

Two Theories of the Case

There is the simple explanation for what happened with Trump and Ukraine. And then there is the not so simple explanation.

Congressmen sit on a dais in a hearing room.
Congressmen and their staffers arrive for the House Intelligence Committee hearing on Wednesday.
Drew Angerer/Getty Images

The conventional wisdom after the opening day of House impeachment hearings seems to have settled on the theme that Democrats, calmly led by Rep. Adam Schiff, and the two sober, borderline fusty foreign service veterans, George Kent and Bill Taylor, spent Wednesday battling goofy claims and gauzy counterattacks by Reps. Devin Nunes and Jim Jordan and other House Republicans. That is surely true to a point, as are the purely speculative claims about who was watching, how it played, and whether any of it really matters. But there’s a second tale to be told of the day’s five-plus hours of testimony and cross-examination, and it’s the one best rooted in an Agatha Christie novel: Whose theory of the crime is more credible and what do the two warring conspiracy theories tell us about the alleged perpetrators, and ourselves?

Let’s imagine Hercule Poirot, or even Harriet the Spy, were tasked with explaining the impeachment plot. The Devin Nunes theory of the case would be extravagantly complex: This whodunit seems to involve House Democrats colluding with a deep state whistleblower and his attorney, who had been plotting a “coup” against the president since the weeks following his election, and who was willing to conspire with Democrats on the House Intelligence Committee to sideline the inspector general and hide the whistleblower from public view. Simultaneously, Democrats have been working assiduously with Russia toward the “funding and spreading” of the Steele dossier while “cooperating in Ukrainian election meddling” all while Hunter Biden used his preelection influence to have an impact on foreign policy under Predsident Barack Obama, and as the “politicized bureaucracy” now conspires to deliberately undermine “the president who they are supposed to be serving,” in the form of corrupt ambassadors. It’s elementary, my dear Watson: This, per Nunes, is a sprawling “hoax” engineered by disparate “elements of the FBI, the Department of Justice, and now the State Department” along with the “corrupt media” to work hand and glove to something, something “nude pictures.” The theory of the case is that all of these entities conspired for years, together, to craft a hoax and sham “Star Chamber” in order to subvert the will of the American electorate. All that’s missing, truly, is Colonel Mustard with a lead pipe in the conservatory.

It all amounts to one more weary turn around the dance floor with what Richard Hofstadter in 1964 dubbed the “paranoid style” of the American right and its “heated exaggeration, suspiciousness, and conspiratorial fantasy.” It is even more remarkable that the same Republicans who decry secondhand testimony and “hearsay” from Kent and Taylor appear to believe in a fully realized criminal agreement between Adam Schiff, the whistleblower’s lawyers, the intelligence community’s inspector general, George Soros, Robert Mueller, CrowdStrike, and compromised State Department officials. In other words, jump back, Eric Trump, with all your claims that this is “boring.” This here is some next level Dan Brown conspiracy stuff.

There is, of course, a second theory of the case. It’s that Donald Trump got an absurd idea in his head about Ukraine working to hurt him in the 2016 election, and another dumb idea in his head about how to smear his likely 2020 electoral opponent, and so he created a back channel consisting of “three amigos” to effectuate a shadow foreign policy that involved withholding appropriated aid to Ukraine until its leader did a CNN interview claiming to be investigating those things. That’s it. There’s no elaborate web of shady malefactors who hate America and engaged in a yearslong, multiagency, deep state takedown of the president. It’s just a bunch of largely incompetent international affairs novices who thought themselves fractionally more adept than they really were, and the host of enablers and bag men who tried to cover it all up after the fact.

The most intriguing moments of Wednesday’s hearings happened when Taylor and Kent, lifelong sane people and career diplomats, were questioned about the Republican theory of the case and, finding themselves utterly confounded, simply blinked into the klieg lights. Questioned about CrowdStrike and Donald Trump’s moon-bat theory that the firm was involved in hiding the Democratic National Committee server in Ukraine and passing the blame to Russia, George Kent appeared baffled: “To be honest, I had not heard of CrowdStrike until I read this transcript on Sept. 25,” Kent clarified. When he was asked if there was any “factual basis” to support the claim of Ukrainian interference in the 2016 election, Kent replied, “To my knowledge, there is no factual basis, no.”

American pundits are pulling out their hair trying to decide what “ordinary Americans” made of the first day’s hearings. This conversation should keep in mind that one side’s theory of the case is dredged from the Sean Hannity/Alex Jones gooey gumbo of paranoia and deep fakes, equal parts fever and swamp, and the other is a simple little shakedown scheme, a demonstrable abuse of presidential powers for personal gain that has been sketched out by the whistleblower and corroborated time and time again by multiple witnesses. When we ask ourselves which narrative most Americans will opt to believe, we aren’t really asking how these public performances will be received (they merely conform to the theories advanced). Instead, we are asking whether a plurality of Americans is willing to accept unfounded elaborate deep state multiparty conspiracy plots or the simple and elegant extortion plan alleged and borne out by multiple witnesses. America is either going to go for the clean shave with Occam’s razor here or cut its own throat.

Were this a jury trial, the choice of narrative would be easy. Any juror confronted with the testimony and the theory of the wrongdoing would get from here to there over a lunch break. As individuals, we are rather good at finding the simplest explanation to be the most credible. But between the media bubbles and the brainwashing and the Jim Jordan shoutiness, it’s certainly possible that a sizeable chunk of the viewing public has been primed to accept that the Pizzagate theory is not just plausible but compelling. If that proves to be the case, it won’t matter how many “nude photos” and Hunter Bidens and Soroses get thrown into the mix—once the outlandish theory is accepted, the details don’t really have to add up. Indeed it’s almost better if they don’t.

Because the other thing Richard Hofstadter promised about the paranoid style is that it “produces heroic strivings for evidence to prove that the unbelievable is the only thing that can be believed.” The entire impeachment defense is predicated on unsupportable claims of widespread criminal conspiracy and collusion between people who never knew each other, never could have met, never had a shared purpose, and never even committed the acts alleged, sure. But evidently when Democrats conspire to put on a coup, no words need be spoken. They can communicate through an elaborate system of tongue clicks and bow ties.

I have no idea whether 30 percent or 50 percent or 68 percent of the American public who tuned into the George Kent and Bill Taylor testimony are prepared to believe that the “deep state” has been plotting a “coup” to overthrow the duly elected president since 2016. But I imagine those numbers are not trivial. When we speculate how well the impeachment hearings are “going” with the general public, we should bear in mind that for a significant number of viewers, the sprawling, multiperson, transnational, Soros-funded gotcha theory of the case is the only one that makes any sense at all. None of which is a comment on how strong the testimony is or how outlandish the Republican defenses are. It is simply a reflection of how far many of us are willing go to prove that the conspiracy is reality and reality is part of the conspiracy.