Lisa Murkowski rose Monday evening to share her thinking on her vote to block additional witnesses in the impeachment trial of President Trump and to share her intention to ultimately acquit the President of both Articles of Impeachment. I call this speech ‘pathetic’ in my apparently inflammatory headline but it is the ancient rhetorical definition of the word ‘pathetic’ that I intend in this statement. By this antiquated meaning, a pathetic speech is one that appeals to emotions to make an argument. If you have not already listened to this appeal, you can read the transcript and watch the video here. You will note more of this pathetic appeal by viewing this speech rather than simply reading the transcript, but it is in reading the speech where we can detect the many fallacies in her reasoning.
She opens with about a minute of appeals to the ethos of the US Government and specifically the institution of the Senate to impress upon her audience the seriousness of impeachment. Then comes the first instance of pathos when she utters, “But, Mr. President, the structure we built should have been sufficient. But the foundation upon which it rested was rotted.” She uses the word ‘rotted’ here to evoke a feeling of disgust from the audience as she then attacks the credibility of the House’s case stating that it was rushed and flawed. Her emotion here seems sincere and criticism of the House’s execution has validity, but ultimately this argument is based on a well worn Republican talking point and an example of a False Implication Fallacy. When she mentions that previous impeachment investigations had “… massive amounts of documents produced and witnesses deposed.”, she implies that the same is not true in this case while there have been seventeen witnesses that have testified giving over 100 hours of sworn testimony. When she mentions “… resistance from the executive was overcome through court proceedings and accommodations.” she implies that the level of resistance from Trump is comparable to that from prior presidents, none of whom made claims of ‘absolute immunity’.
Next, she turns her focus to the Senate scolding her colleagues for their “rank partisanship”. This, after having just taken one of the most partisan of actions, casting the decisive vote to block any witnesses in the Senate trial, an unprecedented result. She then follows up with vague critiques of hypocrisy that seems to be directed at Senators from both parties, “we’ve all seen the videos from 20 years ago where members who were present during the Clinton trial took the exact opposite stance than they take today”. This WhatAboutism plays on our distaste for these contradictions but does nothing to support a reasoned argument.
It is at this point where she tucks in five sentences critical of the President starting with the assertion, “The president’s behavior was shameful and wrong”. Perhaps we should give her credit for her ‘bravery’ here to speak against her party and the President but words alone cannot be brave. If she truly believes he acted ‘shamefully’, should she not propose a penalty for this shamefulness? Where are the checks? Where are the balances?
“All of this rotted the foundation of the process.” Now, she returns to the rotten foundation analogy to summon the feeling of disgust from her audience to then conclude that there can be “no fair trial” in the Senate. This conclusion is devoid of reason. The notion that there is some rigid process of impeachment that is spelled out and must be followed to a tee to ensure a fair trial is a fantasy and a Red Herring. The Constitution lays out a few specific rules but leaves most of the details open to interpretation by the House during the impeachment phase, and the Senate in the trial phase. Precedent establishes that witnesses are warranted in an impeachment trial, not to mention all trials. If there are material witnesses that have not been deposed, for whatever reason, there is no legal reason for the Senate to ignore these witnesses. Which is a more likely reason for an unfair trial? A flawed process or the avoidance of primary evidence?
She also bemoans that the “… [trial] was really litigated in the court of public opinion” while later asserting that “[t]he voters will pronounce a verdict in nine months and we must trust their judgment”. Is an election not a form of a ‘court of public opinion’? Can she not see this obvious contradiction? If we plan to ask the populous to be the jury in this trial, don’t they deserve to see all of the available evidence? Have we abandoned the principle of informed judgment?
Perhaps the best illustration of the passionate yet ultimately reasonless argument she is making is in this passage,
“We debated witnesses instead of the case before the Senate rather than the president’s conduct, the focus turned to how a lack of additional witnesses could be used to undermine any final conclusion. And what started with political initiatives that degraded the office of the president and left the Congress wallowing in partisan mud, threatened to drag the last remaining branch of government down along with us. And, Mr. President, I’ve taken tough votes before to uphold the integrity of our courts and when it became clear that a tie vote here in the Senate would simply be used to burn down our third branch of government for partisan political purposes, I said, ‘Enough, just enough.’”
One of the President’s primary defense strategies is to point out that most of the witness testimony is second-hand. In this context, it is certainly relevant to seek additional first-hand testimony. I would not characterize this as “undermin[ing a] final conclusion”, rather it is challenging a less informed (possibly false) conclusion. This is a clear example of a Fallacy of Ignorance. We should not presume that any additional testimony would lead to a particular verdict. She has argued effectively that the motives of the Executive and Legislative branches are compromised and she holds the Judicial as the “last remaining branch”. So, instead of letting this last remaining branch do its job and render impartial justice, she instead feels the need to protect it from some inevitable failure? If I were a Supreme Court justice, I would be deeply offended. The Supreme Court proved to be up to the challenge in United States v. Nixon, delivering the tapes (subpoena to verdict) in a relatively brisk 3 months. If the goal is to let the electorate decide the President’s fate, why not avail them of the best possible evidence to make an informed and well-reasoned judgment?
As she wraps up her argument she reveals, “As I tried to build consensus over the past few weeks, I had many private conversations with colleagues and so many in this chamber share my sadness for the present state of our institutions. It’s my hope that we’ve finally found bottom here.” If this truly is her hope, she should bring these conversations out of the shadows and into the public eye. Lisa, we need more than some pathetic words and ‘hope’, we need action and conviction.