What’s the difference between a lawyer and a philosopher? No, this isn’t a joke. It’s a genuine question. In fact, puzzling over this distinction has ancient roots extending all the way back to Socrates.
While Socrates doesn’t use the word lawyer, he uses the term “sophist” which, for my purposes here, amounts to the same thing. In ancient Athens, if you were accused of a crime (or you accused someone else), you had to go make your case yourself in a public trial. Since you could not outsource this practice, most wealthy families hired teachers of rhetoric so that they and their children would be well-equipped should they end up in a trial.
The primary goal (but not the only goal) of sophistic training was to learn the skills and strategies to win arguments. That is, a sophist was an expert at using logic, rhetoric, and other speaking skills to persuade an audience of their position. In fact, like lawyers today, the ancient sophists prided themselves on being able to win arguments for any position regardless of what they actually believed about it.
The structure of our legal system places lawyers in the same position as the ancient sophists. The goal for lawyers is to persuade the judge and jury of their client’s case–regardless of what the lawyers themselves might believe. The goal is to win the argument.
Sophistry, or the lawyerly point of view, was deeply offensive to Socrates, Plato, and Aristotle because it is a corruption of the tools, practices, and purposes of philosophy. Unlike the (idealized) philosopher, lawyers begin with a conclusion and employ the tools of argument and persuasion to bring their audience to whence they started.
For the philosopher, sophistry misuses and abuses the tools of philosophy. The philosopher wants to learn what is true, right, and good. To this end they employ the tools of logic and reason–not to persuade–but to discover. An idealized philosopher does not begin with a conclusion, but rather follows the arguments wherever they lead.
I’m not claiming that today’s philosophers, especially when they engage in the public domain as citizens, always uphold the lofty goals Socrates set out for philosophers. My point is simply to describe the philosophical stance. Rather than figuring out who of two competing parties wins, the idealized philosopher asks questions like, “what ought we to believe about this and how might we figure that out?” and “what would be good or right for us to do here?”
In what follows, I will attempt to apply the philosophical point of view to two major questions that have come up during the impeachment hearings. First, would it be a good practice to impeach a president after they have left office for things they did while in office? Second, if we answer “yes” to the first question, would it be a good rule to impeach presidents for what Trump is accused of?
Part 1: Should We Impeach Presidents For What They’ve Done In Office After They’ve Left Office?
One way philosophers like to think about problems like this is to begin with a blank slate. We ignore, at first, particular cases and seek out general principles. We ask, “Suppose we were creating the rules of our government from scratch. What are some of the rules that everyone could see as reasonable and good?”
Let’s test the two alternatives in this case and include one of the core assumptions about government that preoccupied the founders: In a democracy, we cannot always count on politicians to be virtuous and so we need mechanisms that prevent abuses of power.
Proposal 1: We do not prosecute former presidents for their actions in office once they’ve left office.
This does not seem like a good rule if we are concerned about the possibility of presidents abusing their powers. Recall that we never have to worry about virtuous public officials, but we can’t always count on politicians being virtuous. We must therefore design our system with that in mind. An unscrupulous president who knows in advance that they will not be prosecuted for any perceived abuses of power, crimes, or violations of their oath of office so long as their term ends before a trial begins can essentially do whatever they want at the end of their term. In so far as we want to prevent abuses of power, allowing this seems like a very bad idea.
Again, our purpose here isn’t to assess guilt. We are only inquiring as to whether it should be possible to sanction a president for actions undertaken in their final days of office. Ultimately, their guilt would be determined at a trial. But with no rule to create a trial, no such determination is possible.
Often, when we think of what rules and policies we would like, it is our unavoidable nature to be influenced by our particular position in society and the social groups we align with. In other words, very often our judgments will be unintentionally biased. To avoid this bias when thinking about moral and political rules, political philosophers employ a strategy that I call “the ol’ switcheroo.”
Rather than thinking about what powers I’d want my ‘team’ to have, a philosopher asks, “what political powers would I want my adversary to have?” Employing the ol’ switcheroo helps remove the bias from our judgments on these matters and view them in a more impartial light.
Let’s test it out: Regardless of where you sit on the political aisle, would you want for there to be no accountability mechanism for your political adversary when they are in the last month of their presidency if you believe them to be committing crimes or violate their oath of office? Or would you rather that they can be tried for actions they took while in office even though their term has recently ended?
It’s hard to imagine someone endorsing a rule that removes all accountability mechanisms for their political adversary’s actions in office–even if the adversary just left office. To endorse such a rule would undermine everyone’s desire that a system of government prevent abuses of power.
To summarize: From the philosophical point of view, in so far as a democratic government requires mechanisms to prevent abuses of power, it is quite clear that all reasonable people would want for there to be a rule that holds presidents accountable for their actions in office–even if they are no longer in office. One invites abuses of power if presidential actions occurring in the final days of a presidency are somehow exempt from political and legal accountability.
So, should President Trump be tried for his actions in the final days of his presidency? Regardless of what one thinks of his guilt, failing to do so would violate what every reasonable person can see is a good and reasonable policy. Let’s now adopt the philosopher’s stance for that next question: Are Trump’s actions, relating to the Jan. 6 riots, impeachable offenses?
Part 2: Did Trump Commit an Impeachable Offense?
In the law and in moral theory there are two broad categories of responsibility for one’s actions: act and omission. You are responsible for a state of affairs (usually a harm) if you caused that state of affairs. You can, however, also be responsible for failures to act. This second category is responsibility by omission or– more commonly–negligence.
The question before the courts now is whether Trump is in part responsible for the Capitol riots. Since most of us will have a view going into the debate, we should instead adopt the philosophical stance and ask a philosophical question: Under what conditions could a political leader be responsible for the acts of his followers?
Political leaders are different from regular people when it comes to their ability to influence people’s actions. They are privy to information that regular citizen’s don’t have and, as leaders, they have a degree of influence over other’s behavior.
It’s unreasonable to say that a political leader can never be responsible for the actions of their followers. And it’s similarly unreasonable to say that a political leader is always responsible for the actions of their followers. What we need to do, before looking a specific case, is specify the conditions under which a political leader is responsible for the actions of their followers.
Whatever your answer, it should pass the ol’ switcheroo test. You should be willing to apply it regardless of what party the leader belongs to. Suppose your standard implies that Trump is not responsible. It follows that you must also be willing to apply the same judgment of innocence if antifa rioters are invited to the Capitol by a Democrat President who claimed for months that an election was stolen.
Responsibility for harms can be attributed because of what a leader says and does but it can also be attributed for things a leader fails to do–i.e., for reasons of negligence. For example, one might argue (a) Trump’s followers do what he tells them to do and Trump knows this and therefore (b) he could have told his supporters to go home rather than invite them to march on the Capitol building. Failing to prevent harm when one easily could have is negligence–even when one didn’t cause the harm.
The point is, whatever standard you choose should at least withstand the ol’ switcheroo test. If it doesn’t, then you’re occupying the sophistic rather than philosophical stance.
Bonus Material On Legal Responsibility
This post has already gotten longer than I’d hoped so I’ll officially end here. But if you’re still curious, I’ll very briefly outline the legal standard of responsibility for tort and criminal law. (It should be pointed out that impeachment is a political rather than legal process and so even if Trump’s actions meet the legal standard, it isn’t binding on the political process).
Legal responsibility is established by the legal standard of causal responsibility. The legal standard of causal responsibility consists of two tests. The first test is the but-for (aka sin qua non) test. The but-for test establishes a causal chain from an agent to a harm or wrong. So, in the case of Trump we ask if the following is true: “But for Trump claiming the election was a fraud, encouraging his supporters to assemble/march at the capitol, etc… would the rioters have caused the harms that they did?
The answer here is fairly clear. Had Trump not claimed the election results to be fraudulent none of this would have happened in the first place. However, the but-for test is only the first test that must be passed. The harm that follows from the action must be direct and foreseeable. In must be direct in that it can’t be the result of an incredibly long chain of events and it must be foreseeable in that the harm cannot have been an unlucky coincidence.
If a president tells their supporters that an election has been stolen, it is not surprising that they acted as they did. In fact, I think that if Trump’s claims had been true, they acted rightly. If indeed a democratic election has been stolen by massive election fraud, citizens have a duty to rectify it–the future of a country’s democracy is at stake. This is a reasonable response to being told that there was massive widespread voter fraud in a democracy. So, on this count, the consequences of Trump’s pronouncements were entirely foreseeable.
Similarly, a large group of angry armed supporters–many dressed in military gear–assembled near the capitol because their president had told them for months that the election was stolen. He then told them to march on the Congress buildings. That they do so is entirely foreseeable.
At this point we need to bring in the second stage of the causation test–proximal cause. The proximal cause test is a question of judgment rather than “a matter of fact.” To establish legal causation (and hence legal responsibility) the chain of causation cannot be broken by another agent (i.e., human being). It can be argued that the chain of causation from Trump’s utterances to the harms caused of his supporters was broken by the supporters. They decided to believe Trump and follow his urgings.
Nevertheless, that a chain of causation is broken by other agents doesn’t always exculpate the initiator of the chain. The mob boss who orders a hit is also responsible for the murder despite the fact that the hitman chose to do it. Similarly, the CEO who tells or pressures his employees to commit fraud isn’t legally off the hook merely because his employees chose to listen to him.
Despite all this, someone might still argue that ultimately it was Trump’s supporters that decided to act as they did. They could have ignored Trump’s claims or maybe even independently verified his claims. A president of the United States of America bears no responsibility for how his followers choose to act in response to his words.
Even if we accept the view that Trump did not (legally) cause his followers actions (and is therefore not responsible), there still may be responsibility by omission; i.e., negligence.
Suppose a president is aware that his followers believe that the election was stolen from them by massive voter fraud and that, in protest, they are assembled, armed, and angry. This is quite shocking to him and he has no idea how they came to entertain such ideas. But suppose also that he knows that his followers will do what he tells them to do. A president who did not tell his followers to disperse rather than, say, march on the Capitol building, bears responsibility by omission.
He could have said something to disperse the crowd but he did not. When one has the power to prevent foreseeable harm, it is negligence. Someone might protest that a president, with access to multiple massive intelligence agencies, could not have possibly known that his followers presented a threat of violence. Perhaps. But it’s unlikely.
But suppose that president were not a mere mortal but a very stable genius who played 4-D chess? Certainly someone of this intellectual caliber would be able to infer the relevant information and act to prevent what, to everyone since 2016, was entirely foreseeable. In such a case this person would be negligent. And the same judgment would apply whether that president is Republican or Democrat.
One does not have to be a philosopher to see this.