Impeachment and bullshit

Andrew Koppelman

 Almost all Republican Senators – 45 out of 50 – agree with Donald Trump’s lawyers that it would be unconstitutional to impeach Donald Trump after he has left office.  The legal claim is weak, but it is mighty convenient.  It gives them an excuse (a weak one, as I’ll explain) for voting to acquit without having to take any position on whether his incitement of the riot of January 6, and his bland, passive indifference as his devoted followers spread death and destruction, were impeachable offenses.  The constitutional claim is being carefully debated, but it should not be taken seriously.  That is because the members themselves clearly do not take it seriously.  They don’t care whether it is sound, and their reasons for embracing it have nothing to do with its soundness.  It is, if one may use a precise technical term, bullshit. 

The philosopher Harry Frankfurt, in his now-classic essay On Bullshit, defines the term to mean words uttered with indifference to their truth.  “It is just this lack of connection to a concern with truth—this indifference to how things really are—that I regard as the essence of bullshit.”  The bullshitter, Frankfurt observes, “does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose.”  He “does not reject the authority of the truth, as the liar does, and oppose himself to it. He pays no attention to it at all. By virtue of this, bullshit is a greater enemy of the truth than lies are.” 

On January 26, Senator Rand Paul forced a vote on his objection to Trump’s trial, claiming that a President cannot constitutionally be impeached after he leaves office.  He was supported by 45 Republicans, leading many to think that there is no chance that Trump can be convicted by the required two-thirds majority (which would mean that 17 Republicans would have to vote to convict). 

After his motion failed, Paul tweeted: "45 Senators agreed that this sham of a 'trial' is unconstitutional. That is more than will be needed to acquit and to eventually end this partisan impeachment process. This 'trial' is dead on arrival in the Senate."  Senator Susan Collins, who voted against Paul’s motion, similarly told reporters, “it’s pretty obvious from the vote today that it is extraordinarily unlikely that the president will be convicted. Just do the math.”

 Both are presuming that a vote against constitutionality means a vote to acquit.  That makes no sense, if the Senators are concerned about the Constitution.  But the fact that Paul and Collins are probably right shows that the Constitution has nothing to do with what’s going on here.  The constitutional analysis is exactly the kind of bullshit that Frankfurt is talking about. 

Now that the Senate has resolved the constitutional question and decided it can go forward, the members, having been outvoted on the jurisdictional question, are obligated to accept that decision and considering Trump’s conduct on the merits.  Judges on appellate panels do that all the time.  They don’t get out of their duty to decide the case on the merits once it is properly placed before them.  Or, if they are immovably committed to the idea that the Senate trial is illegitimate, Senators can refuse to participate, and boycott the trial.  Of course, that would make conviction more likely, because the Constitution says that it requires “the Concurrence of two-thirds of the Members present.”  The fewer the members present, the lower the number needed to convict; just do the math.  But if you’ve got no authority to participate, then that’s not your concern, is it? 

Either of these options, however, would infuriate some part of the Republican party base, most of which loves Trump and the rest of which finds him sickening.  So Republican Senators need a rationalization for voting to acquit without taking any position at all on what Trump did. 

The claim that Congress can’t impeach a former president, which the Republicans have almost all rallied around, is actually pretty dubious.  The Constitution gives impeachment two functions, to remove a malefactor from office and to bar him from future office.  To confine it to only one of those functions is like saying that a claw hammer can only be used to pound nails, and mustn’t be used to pull them out again. 

But those who deploy the constitutional argument don’t care whether it is correct.  The point is to give legal cover to those who are acting from other motives, to give their actions a false sheen of conscientious legality.  The way you’ll know that they don’t take their own argument seriously will be if they use the constitutional objection as an excuse for voting to acquit Trump (as I confidently predict they will).  In that context, it’s not an argument at all.  It’s bullshit.