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Asking the Right Questions

This week’s trial based on Impeachment II of America’s 45th President highlights why logic-checking (a catch-all term for a set of critical-thinking skills you have been reading about) is required when decisions need to be made without all the facts.

The House managers presenting their case against Donald Trump and Trump’s defense team both claim to be laying out facts, with video recordings serving as the most memorable evidence having been presented so far.

Because this case hinges on what took place in the past, such a forensic approach can lead to truth. But each case also rests on knowing what was going on inside people’s minds, something nearly as difficult to fact-check as what will happen in the future. This is why the prosecution and defense teams are working their evidence into arguments and asking the jury (in this case the Senate) to decide which arguments are strongest.

For example, the first question Senators were asked to decide was whether the entire proceeding was constitutional, given that Donald Trump was still President when he was impeached for a second time, but by the time the trial in the Senate began he was an ordinary citizen.

In this case, the minds that needed to be read were those of the long-dead people who drafted and ratified a US Constitution that included clauses regarding impeaching a President, clauses that did not speak directly to the situation of a President impeached days before his term ended.

Given that the entire field of constitutional law is about interpreting documents (such as the Constitution itself as well as historic documents regarding its creation and ratification) as well as legal and historic precedent for clues regarding how to proceed without explicit rules to follow, attorneys for and against punishing Trump were not operating in the dark. But each team was asking the jury to consider a different question regarding the constitutionality of the proceedings, namely:

  • Do rules regarding impeaching a President apply to someone who is no longer the President? (the defense team’s preferred question)

  • Do the rules regarding impeaching a President apply to someone who was the President when the crimes he was accused of took place? (the prosecution’s preferred question)

Given that the Senate/jury decided the second question was the one they wanted to pursue, the prosecution effectively won round one.

You read about the importance of coming up with the right question in earlier discussions of Information Literacy, but in any situation requiring clear thinking you need to know what question you are trying to answer if you want to know if your inquiry has concluded successfully.

But questions also pack rhetoric power since choosing one question crowds out other potentially valid alternatives, constraining the topics we are left to debate. For example, now that the constitutionality question has been decided in favor of the prosecution, the teams are making arguments around two questions about a different topic, this time:

  • Does the President possess the same constitutionally protected freedom of speech rights held by every citizen of the United States? (the defense’s preferred question)

  • Does the President as the nation’s paramount enforcer of law have special responsibilities to prevent, rather than encourage and facilitate a crime? (the prosecution’s preference)

Each question contains within it a host of assumptions that underlie each side’s case. For if the President is on trial for misusing his constitutionally protected free-speech rights, he would have to be prosecuted based on legal principles related to “fighting words” that specify when a speaker who has not engaged in criminal activity him or herself is responsible for the criminality of others through the words they spoke or wrote.

The reason the defense team wants this to be the question the jury considers is that it is notoriously difficult to draw the line between aggressive utterances and incitement (which is why prosecutions based on “fighting words” rarely succeed in court).

But if the question is not about free speech, but rather about the President’s responsibilities – responsibilities he swore to uphold when he took the Oath of Office – then there need not be an air-tight argument showing how the President’s words led directly to the attack on the Capitol. Instead, the prosecution merely needs to show that the President’s words and actions created the situation that led to the Capitol attack, even if that was not his intention.

As this week’s historic proceedings continue, it will be easy to cheer on one side and boo the other, or get captivated by video-based evidence that, by its nature, generates emotional responses. There is nothing wrong with getting swept up in the presentations and arguments taking place in Washington. Entire literary and film genres are based on the drama of legal trials after all.

But I hope that the logic-checkers among you can take a moment to analyze the arguments being presented by those you agree with and those you do not, starting by seeing if you can tease out the question each side is hoping you’ll agree is at the heart of the debate.


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