We all knew it would come to this. Backed into a corner, President Donald Trump’s legal advisers, both official and informal, took to Fox News to reveal a defense they’d long hinted at: So what if he did it?
“It,” in this instance, refers to allegations that Trump withheld aid to Ukraine unless the country’s leaders would announce an investigation into Burisma, an energy company linked to Hunter Biden. “It” could have been any number of administration scandals, however. The truth is that for many of Trump’s loudest cheerleaders on Fox News, it’s unlikely that there’s anything he could do that would convince them he must be removed from office.
This “so what?” defense is an argument that even if Trump did everything he was accused of, something he and his supporters have regularly disputed from the start, it still wouldn’t reach the standard for removing a president from office. Why, if everything was perfectly innocent, did the administration’s defenders go to such lengths to claim that Trump didn’t do what he was accused of? In The New York Times, Charlie Savage breaks down this circular line of argument, citing the shoddy constitutional basis for such a defense, especially around any claim that a criminal offense is required to meet the standard for impeachment, as the president’s defenders now insist.
It’s not a surprise that a number of Fox guests and hosts are finally vocalizing their belief that Trump is essentially above the law, nor will it be a surprise when the Republican-controlled Senate inevitably acquits him.
For months, Fox News has been moving the goal posts on impeachment. The “so what?” defense was the only logical conclusion.
On the January 16 edition of Fox News’ Hannity, former White House chief of staff Reince Priebus stated it plainly, saying that “sometimes the best defense is the ‘so what?’ defense.”
I look at this whole Ukrainegate. I say everything the Democrats have charged is true. I concede each and every allegation about trying to muscle the Ukrainian government into investigating the Bidens. I concede that. I concede that the call with Zelensky and President Trump was not appropriate. It was tacky and inappropriate. I concede all of that, and I come to “so what?” This does not state a case as demanded by Article 2, Section 4 of the Constitution of the United States. This is not bribery. This is not treason. This is not a high crime or misdemeanor. This entire impeachment fails because it does not state what the Constitution requires.
On October 4, Fox News contributor Andy McCarthy, who was one of the most prominent voices in the push to impeach President Barack Obama, said, “The question here is, was there a corrupt quid pro quo? That is, was the president leveraging his power over foreign affairs exclusively to get the Ukrainians basically to work on the Trump 2020 campaign.” He answered that the president may have simply been asking Ukraine to support Attorney General William Barr’s “legitimate Justice Department investigation,” which he said is “entirely appropriate.”
By the January 16 edition of Fox News’ News' Outnumbered, McCarthy argued the Trump legal team had made a strategic error by originally focusing on denying the details of the allegations rather than simply staking out the ground that “nothing of consequence happened here.” He added later in the segment:
MCCARTHY: We used to have, and up until very recently, this has been the history of the United States, the expectation — which was the framers' expectation — that from time to time, the chief executive would abuse his power, in the sense of either doing something that the Constitution didn't permit, or somehow overdoing the powers that the Constitution gives to the president. And the expectation was not that you were going to jump every time that happened to impeachment. There are other ways that the Congress, either by political pressure or by using the power of the purse, would be able to rein in presidential excess. The idea was that, you know, there is a lot of area between something that is wrong and something that is impeachable. And I think that's what we have lost in this equation.
Geraldo Rivera once said that Fox’s Sean Hannity was the difference between Trump and Richard Nixon. He was right.
Hannity and Fox News have been a firewall protecting both Trump as well as his Republican supporters in Congress. In December, an Ipsos/FiveThirtyEight poll showed that while viewers of MSNBC and CNN had roughly similar understandings of the facts surrounding Trump’s impeachment, Fox viewers were seeing something else entirely. For instance, while 88% of MSNBC viewers and 93% of CNN viewers believed that the Trump administration attempted to cover up information about his actions regarding Ukraine, just 20% of Fox viewers agreed; while 89% of MSNBC viewers and 87% of CNN viewers believed that Trump withheld military aid from Ukraine unless the Ukrainian government announced an investigation into the Bidens, just 25% of Fox viewers were in agreement.
Nixon’s resignation came only when it became apparent that congressional Republicans had turned on him, and that happened only after the public had soured on him. By creating an alternate reality for Trump supporters, Fox News is safeguarding the president and Senate Republicans by keeping public support for impeachment below the boiling point that forced Republican hands in the Nixon era.
Embracing the Trump team’s legal argument is an exercise in hubris.
It’s the job of a lawyer to stake out positions that benefit his or her client. In a six-page letter responding to House Democrats’ 111-page brief making the case for impeachment, Trump lawyers Jay Sekulow and Pat Cipollone did just that. “The Articles of Impeachment are constitutionally invalid on their face,” they wrote. “They fail to allege any crime or violation of law whatsoever, let alone ‘high Crimes and Misdemeanors,’ as required by the Constitution.”
Sekulow and Cipollone go on to argue that “Trump has not in any way ‘abused the powers of the Presidency.’ At all times, the President has faithfully and effectively executed the dutes of his Office on behalf of the American people,” adding that saying a president shouldn’t do things like extort foreign governments for political gain “would do lasting damage to the separation of powers under the Constitution.”
In October, Trump’s lawyers made an extraordinary claim for presidential immunity from legal consequences, arguing that even if he actually stood in the middle of Fifth Avenue and shot someone -- as he said during the 2016 campaign -- he couldn’t be charged with a crime while serving as president.
Lawyers often adopt questionable positions that ultimately amount to a belief that their client is above the law. When a media outlet does this -- especially one that called for the impeachment of Obama at seemingly every opportunity -- it’s an insult to the general public. Should Trump’s own legal team want to argue the “so what?” defense, that’s their prerogative, but news outlets have a responsibility not to play along. By defending Trump at all costs, Fox News is embracing its role as the president’s personal propaganda outlet.