Fact Check: Uncensured Lies on the Senate Floor

I masochistically watched nearly every hour of the Senate impeachment trial*, and I can say unequivocally that Trump’s lawyers’ defenses were blatant lies. This is not surprising, of course, but these lies are vastly more dangerous when they are repeated without censure on the Senate floor. Millions of Americans who watched all or part of the trial* would have a reasonable expectation of truth on the floor of the Senate—not spin-free by any means, but not completely fabricated.

So I was not surprised to hear a lot of misinformation from Americans calling in to C-Span during the trial. I was disappointed and angry, although still not surprised, when C-Span “journalists” didn’t correct even the most basic civics misinformation. And to some degree, I can’t entirely blame these callers, indignant because they believe the lies Trump’s lawyers and GOP Senators spouted on the floor, because it’s reasonable to assume that lies would get censured in this supposedly serious, august body. In most business of the Senate, those who are not Senators are testifying under oath, with penalties for perjury. Senators’ lies are protected by the Speech and Debate Clause, but what protects Americans from lawyers in an impeachment trial repeating lies without any immediate consequences?

I can tell you who doesn’t. Not C-Span. Not Chief Justice John Roberts, who apparently doesn’t mind seeing our Constitution trampled as long as it’s done with some civility. The Democrats countered the lies on the floor, but that’s not the same as censure from a neutral arbiter simply based on facts, especially when Trump’s defense keeps repeating the lies.

C-Span brands itself as “unfiltered,” but the reporters who take calls do ask questions and occasionally offer a correction. They could easily correct blatant errors without coming across as “filtering” the news. In fact, by not doing so, they add weight to the lies people believe about the impeachment and surrounding issues, which is far from “unfiltered.” Here are a few of the easiest facts they could have provided the audience.

FACT: Impeachment does not overturn an election.

It’s not taking sides to point out this simple constitutional fact. If Trump is removed, VP Mike Pence becomes president, not Hillary Clinton. Yet I heard this complaint repeatedly from GOP lawmakers and Trump’s defense team, and therefore, several callers on the C-Span lines made the same erroneous point. The irony is that Trump is being impeached because of the actual last election, the 2018 midterms, when Americans voted overwhelmingly for representatives who would hold Trump accountable. Clearly, the GOP is trying to overturn that election by doing everything in their power to defend Trump’s impeachable conduct–including giving up their own power.

FACT: Republicans were allowed witnesses in the House.

It’s not partisan to point out the fact that Republicans were allowed witnesses in the House impeachment inquiry. The proof is in House Rep. Devin Nunes’s letter to Rep. Adam Schiff, in which Nunes requested David Hale, Tim Morrison, and Kurt Volker, among others. Just because these witnesses did not help Trump’s defense doesn’t mean they weren’t witnesses requested by Republicans.

FACT: Republican were allowed to attend and ask questions in the “secret” House depositions.

It’s not taking sides to point out to callers that Republicans were allowed in the supposedly super-secret depositions held during the House inquiry. A total of 47 Republicans on the relevant committees were allowed to attend and ask questions. The same committee-membership rule applied to Democrats. This lie is easily disproved by simply looking at the transcripts of the depositions, where Republicans appear in black and white asking questions in the SCIF. For a more reader-friendly source, see Politifact’s article “In Senate Trial, Pat Cipollone Was Wrong on GOP Access to SCIF Depositions.”

FACT: Trump was invited to participate with his attorneys in the House impeachment inquiry, to cross-examine witnesses, and to call his own. He declined.

Arguments about Trump not getting “due process” in the house rely on Americans having such little knowledge of civics that they don’t understand the difference between an investigation and a trial. It’s insulting. But even with this being the case, the House offered Trump unprecedented due process, and he declined to show. See House Resolution 660 calling for exactly this in the Judiciary Committee part of the inquiry. See also “White House Rejects House Democrats’ Invitation to Participate in Impeachment Process as Trump Focuses on Friendly Senate.”

FACT: Trump never asserted executive privilege over documents and witnesses withheld from the House.

Trump’s defense team repeatedly cited Trump’s executive privilege in his wholesale blocking of all witnesses and documents from going to the House for the impeachment inquiry (and for any oversight from the Democratic-majority House). This lie isn’t as easy to debunk with primary sources because you’d have to review all WH correspondence to see no assertions made rather than looking to a single document. At whitehouse.gov, the correspondence is not in one easy place, so you have to do a search. Newspapers have widely reported on this, however, and he House managers mentioned it on the Senate floor multiple times. Trump’s defense team never responded with any claims of specific executive privilege and no evidence of it, which they surely would have presented if they had it.

FACT: Trump is accused of multiple crimes.

Instead of defending against the charges in the impeachment articles, Trump’s defense team and the GOP as a whole kept repeating that the articles contained no crimes. This is patently false. Although impeachment and removal do not require crimes, in part because the consequences aren’t as a severe as in a criminal case (the president simply loses his job, not his life, property, or freedom), the articles do implicate several crimes, even if the focus is not on statute. Here’s a list of the laws Trump potentially broke, with statutes I believe apply. (IANAL, so this a rough starting point only.)

Witness intimidation (18 USC § 1512); bribery (18 USC § 201); violation of Impound Control Act (2 USC Ch. 17B); criminal conspiracy (18 USC § 371); conspiring to violate straw and foreign donor bans (52 USC § 30122 and 30109(a)(1)(A); 18 USC § 371); obstruction of justice (18 USC § 1503); obstruction of proceedings before departments, agencies, and committees (18 USC 1505); contempt of congress (2 USC § 192); criminal threats (18 USC § 875); misprision of felony (18 USC § 4); fraud (black propaganda and honest services fraud; 18 U.S.C. §§ 1031, 1346); violation of Foreign Corrupt Practices Act (15 USC §§ 78dd-1, et seq.)

These can all be argued on their individual merits, of course, and maybe they all wouldn’t hold up, but Trump’s defense team offered no defense against what Trump actually did, instead focusing on how unfair the House process was based almost entirely on the lies debunked above and conspiracy theories about Joe Biden and Adam Schiff.

As the trial wore on, and the House managers made a solid case, Trump’s lawyers began making the astonishing argument that Trump had every right to do everything he was accused of. In other words, they claimed that the president is above the law. And it’s looking like the GOP Senate is about to vote this astonishingly dictatorial, unconstitutional position into precedent.

The vote isn’t until Wednesday. Keep calling your Senators to insist on a conviction and removal from office: (202) 224-3121.

*Given the lack of documents and witnesses, the Senate held more of a hearing than a trial.

Melanie Mallon

Melanie is a freelance editor and writer living in a small town outside Minneapolis with her husband, two kids, dog, and two cats. When not making fun of bad charts or running the Uncensorship Project, she spends her time wrangling commas, making colon jokes, and putting out random dumpster fires. You can find her on Twitter as @MelMall, on Facebook, and on Instagram.

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