Neil Buchanan: Republicans Wriggle On the Hook Making Excuses for Trump

This article first appeared on the Dorf on Law site.

In the aftermath of former FBI Director James Comey's dramatic sworn testimony before the Senate Intelligence Committee this week, it is clear that the Republicans are not yet ready to void their deal with the devil.

Republican senators on the committee went to embarrassing lengths to defend Trump, and the rest of the party seems perfectly content to let Trump try to declare victory and walk away.

This raises a question that we can address from at least two different angles: What did we really expect? That is, what did we think would happen at the hearing?

More broadly, for those of us who are not at all surprised that Trump has proved himself unfit for office again and again, what have we been expecting for the last six months, or even two years?

When we expressed fears about Trump being president, is this even close to what we thought would be happening?

On the immediate question of Comey's testimony, much of the odd post-hearing optimism on the Republican side is a simple result of there having been no game-changing moments at the hearing.

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Republicans were able to float various defenses of Trump, including efforts to impugn Comey's motives and methods. As weak as those arguments were, that is not the point. All they had to do was hope for anything but the worst, and in that they were not disappointed.

Republicans are well accustomed to having to keep a straight face while making fatuous arguments. They are unashamed of their own oddball ideology-driven positions (climate denialism, tax cuts that pay for themselves, that a sitting president has no right to nominate a Supreme Court justice, and on and on), and they have now become similarly inured to responding to Trump's many outrages.

In short, Republicans are practiced at making bad arguments, and yesterday was no exception. Paul Ryan tried to say that Trump is simply new to politics, so his interference with the FBI's investigation of Russia's election meddling was merely a rookie error.

Nice try. "Your honor, my client had never been in a bank before. He didn't know that you couldn't just take the money and run."

GettyImages-642093036 Donald Trump in the East Room at the White House on February 16, 2017 in Washington, DC. Mario Tama/Getty

On a different tack, the Republicans on the committee tried to claim that Trump did not try to shut down the entire Russia investigation, asking Comey only to lay off Michael Flynn. As Elizabeth Goitein wrote in The New York Times : "Imagine defending Nixon by pointing out that he didn’t erase every tape he created and didn’t order a break-in of every facility used by Democratic operatives."

Imagine a situation in which there are six different avenues that a prudent investigator would follow. Now imagine that the president says: "You can follow these five as far as you want, but don't follow that one." Has he attempted to block the investigation? Even if it ended up being possible to find everything via the other five routes, the president's intervention is still an attempt to obstruct the investigation.

By far the funniest trial balloon that Republicans pushed at the hearing was the idea that Trump never directly ordered Comey to stop. Many people have pointed out how unnecessary it is for powerful people to use specific words. It is only necessary to say that you hope something will happen, and your underlings will know what to do.

What would Republican senators say if they heard a guy in a dark suit and shirt say, "Make sure that Luca Brasi sleeps with the fishes"? "Gee, maybe he only means that we should buy his friend Luca some aquariums filled with exotic species of fish and have them installed in his bedroom. How nice!"

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Or how would they interpret this: "You've got a nice army base here, Colonel. We wouldn't want anything to happen to it." What would the senator from Idaho say? "Why, thank you. I feel the same way. Have a great day!"

In any event, the right-wing mediaverse has convinced Republicans that the only impeachable offenses are criminal offenses. This continues to be clearly wrong, as I pointed out in a column last week, because "high crimes and misdemeanors" as grounds for impeachment is not limited to chargeable crimes.

Although I noted in that column that those four words— high crimes and misdemeanors— are to be read together as a term of art, it is worth noting that the word "high" in that context refers to the position of the wrongdoer, not the seriousness of the offense. That is, we are talking about wrongdoing by people who hold high office.

Of course, if Trump is guilty of criminal behavior that could be charged by a grand jury, then that is obviously sufficient to justify impeachment. This is why some of Trump's detractors have focused on the elements of the crime of obstruction of justice.

The problem is that focusing on the criminal aspect can inadvertently lead people to believe that chargeable crimes are necessary and not merely sufficient for impeachment. In the end, grounds for impeachment are whatever members of Congress decide they are. (Heck, Senator Arlen Specter decided to draw from Scottish common law in the Clinton impeachment trial.)

The broader issue is that Republicans are already, in a strange way, running out the clock on the Trump presidency. They approached the Comey hearing as an opportunity to muddy the waters enough to say that they are not required to impeach Trump, for any of a number of embarrassingly weak reasons. If they can keep the clock moving, they might be able to get the public to think that what is happening is not so bad. And the band plays on.

So what was I expecting, going into yesterday's hearing? I admit that I considered it a non-zero probability that some kind of cataclysm would occur, but it is no surprise that things proceeded in what we now must admit is the new version of normality. Republicans have majorities in both houses, and they know that their base will punish them for abandoning Trump. As long as both of those things continue to be true, all else follows.

As I noted at the top of this column, however, there is a broader way to ask the question, "What were we expecting?" From the day that Trump announced his candidacy through his improbable nomination and non-majority electoral victory, people have been predicting that Trump will be a disaster as president. They were obviously right in a broad sense, but is what we are seeing what we thought we would be seeing?

I ask this question because I am one of the people who has long been sounding the alarm regarding Trump's existential threat to constitutional democracy, most prominently in a column last June. Similarly, people like David Brooks of The New York Times have been saying for months that Trump would almost certainly be impeached, probably within his first year in office.

Having gone back to reread what I wrote in that column and elsewhere, however, it is striking just how difficult it was to offer examples of impeachable things that Trump might do.

Trump's obvious disdain for the rule of law made it easy to believe that he would do anything that struck his fancy and then either deny doing it or say, "Come and stop me if you can!" Yet it was surprisingly difficult to imagine (much less predict) what has actually come to pass.

In response to Republicans' reassurances that their congressional leaders would be able to control Trump's worst impulses, I once asked how that would work. What if Mitch McConnell and Paul Ryan went to the White House to tell Trump that he could not do something, but Trump had them arrested?

But that is such an extreme example that it does not really fit into the pattern that we are now seeing. I honestly expected that Trump and his people would be careful about toeing the line while they were in the process of undermining constitutional democracy. I certainly did not, for example, expect them to brazenly violate the emoluments clause or to laugh at ethics rules.

Instead, I expected that they would try to suppress votes (and they are) in order to make future elections sham events. I expected them to change rules to make money even more dominant in politics. Until they had consolidated power sufficiently to be untouchable, however, I did not expect them to be sloppy.

And maybe that is the answer. Maybe this Comey hearing was the definitive signal that the Republicans have concluded that Trump is truly and completely untouchable. Have we reached the point where Trump's boast about being able to shoot someone dead on Fifth Avenue without consequence has become almost literally true?

I certainly hope not. In any case, it is also possible that this is merely an intermediate phase. Some— probably most— Republicans will stick with Trump to the bitter end. Others, however, might have their limits.

When you have a president who, less than five months into office, has already tried to derail an FBI investigation (and was eager to fire someone in order to do it), who has put national security at risk by revealing intelligence information to foreign governments, and who shows no awareness that the rules or norms of government must apply to him, you are looking at a ticking time bomb.

Most significantly, Trump responded to the unanimous conclusion of the U.S. intelligence community that Russia— which certainly qualifies as a hostile foreign power— had tried to interfere in U.S. internal affairs by saying, "Nothing to see here." Comey or no Comey, Flynn or no Flynn, this is the kind of thing that a president is supposed to care about, not sweep under the rug in the service of his own ego.

At some point, some Republicans— and it only needs to be a few— are finally going to ask what it really means for a president to "preserve, protect and defend the Constitution of the United States." A president who demands complete loyalty to himself, rather than to the rule of law, cannot be trusted to uphold that oath.

Neil H. Buchanan is an economist and legal scholar and a professor of law at George Washington University. He teaches tax law, tax policy, contracts, and law and economics. His research addresses the long-term tax and spending patterns of the federal government, focusing on budget deficits, the national debt, health care costs and Social Security.