When Politics and Fact-Checking Collide

Self-appointed fact-checkers engage in dishonesty when they treat matters of opinion or debate as black-and-white issues to be judged as true or false.

Hysteria over “fake news” on social media has led to a bevy of fact-checking by news outlets and other websites. CNN, for example, loves to catalog every exaggeration, misstatement, or falsehood President Trump says. Though claiming otherwise, these self-appointed fact-checkers are not immune to bias, and they often treat matters of opinion or debate like math problems that have a definitive right or wrong answer.

Case in point, a website called recently rated Professor Noah Feldman’s argument that President Trump hasn’t been formally impeached until the House delivers their charges to the Senate as “not true“, despite Feldman supporting his argument with legal precedent and history.

Feldman, who testified before the House in favor of impeaching Trump, is a Professor of Law at Harvard Law School. The House chose him to testify because of his strong academic credentials. Truth or Fiction cited dissenting opinions from Twitter to come to their conclusion (later adding an opinion piece by Alan Dershowitz).

One dissenting opinion they didn’t cite was that of Robert G. Natelson, Senior Fellow in Constitutional Jurisprudence at the Independence Institute. Writing on, Natelson cites two unrelated cases to argue that the President is impeached simply on the majority vote of the House of Representatives. One case pertained to ratification of state constitutional amendments and the other to presidential appointments. I fail to see how these examples specifically relate to the act of impeachment or rebut Feldman’s argument.

Being an expert in a particular area doesn’t mean you’re always right or free of bias, but if two or more academics have a disagreement over a particular issue, what makes one side’s argument “true” and the other “not true”? You have to weigh the evidence for both sides, and in my opinion, Feldman has presented ample evidence to back up his case.

As Feldman argued, if Trump has been impeached, then Nancy Pelosi has no leverage and the Senate can begin its trial anytime. They don’t need any notice from the House. Of course, this isn’t true because Pelosi is withholding formal notification in order to pressure the Senate into making concessions. Pelosi’s own actions demonstrate that the House needs to take some additional action before the impeachment trial can begin.

Truth or Fiction filed their article under “Disinformation”! As though Feldman was deliberately trying to deceive the public with his argument. By fact-checking what is, essentially, an academic debate over what’s still an ongoing public issue, this website’s editors have clearly taken a side in the discussion. This has nothing to do with debunking fake news and memes and everything to do with advancing their own personal opinions.

According to their About page, the staff at Truth or Fiction? are journalists who left for a more “open” environment “free from restraint”. Its managing editor, Brooke Binkowski, was fired from Snopes in 2018, and under her leadership, Facebook flagged as spreading clickbait. There’s nothing wrong with operating a competing website to do things your own way, but at least be transparent about your biases and don’t pretend to be “non-partisan” (as this website claims).

Presenting an opposing view is fine, of course, but so-called “fact checking” websites claim to be doing something else. They position themselves as arbiters of truth, defending the public from false or misleading claims. When it comes to actual hoaxes, determining truth or falsehood isn’t difficult, but not everything is a matter of black and white, truth and falsehood, especially in politics or law where opinion, interpretation, and perspective rule the day.

4 replies on “When Politics and Fact-Checking Collide”

You pose some very good questions: “If that’s the case, how can the House delay delivery of the articles to the Senate? What purpose would this serve? Why doesn’t the Senate just start the trial on its own?”

Answers: There no way to know what the Speaker is thinking. One possibility is that she simply doesn’t know the right constitutional rule: There are not many people who are experts on impeachment and the Constitution’s structure, and she may really think she can hold up impeachment this way. And even if she thinks she is PROBABLY wrong, because there are no 100% certainties on this question she may think she can cause enough doubt to exercise leverage over the Senate’s trial procedures. There is another possibility: The holdup may be the product of her own ambivalence. Pelosi has always had (very reasonable) doubts about the viability of impeachment, and this may be making her reluctant to take what she may think is the final step. (Actually, I think the final step already has been taken, but she may hope she can put it off by delaying delivery of the Articles.)

My belief is that the Senate CAN start the trial on its own and probably should. But all this has occurred during the Christmas/New Year’s break, when not much is happening. The Senate may elect to proceed sometime this month.

It’s also difficult to figure out what is going in on the minds of key Republican Senators. Here are some possibilities:

* Let’s proceed to trial as soon as the winter break is over. We’ll simply notify the House to have its managers on the Senate floor at, say, 9:30 am on Jan. 15, ready to proceed.
* Let’s treat this as “no impeachment,” and argue that the whole exercise was a charade.
* Let’s say that Pelosi is withholding the articles because she knows her case is weak.
* Let’s treat this as an abandoned case and dismiss for failure to prosecute.
* Let’s treat this as an unconstitutional attempt to dictate to the Senate the mode of trial.

Obviously not all these options are mutually exclusive. I’m sure the Senate leadership is mulling over all of them, and others, right now.
– Rob Natelson

Liked by 1 person

I appreciate your commenting on my humble blog! If that’s the case, how can the House delay delivery of the articles to the Senate? What purpose would this serve? Why doesn’t the Senate just start the trial on its own? It seems like if there’s no requirement to deliver the articles to the Senate, then Nancy Pelosi is just making a fool of herself right now


Regarding your comment “Natelson cites two unrelated cases . . . I fail to see how these examples specifically relate to the act of impeachment or rebut Feldman’s argument.”
With respect, this may be due to lack of familiarity with how the Constitution was drafted or the legal background on which I was drafted.
As I explained in my article for The Hill, in the law of the Founders’ time (as today) some legal actions are effective immediately when executed and others only when certain documents are delivered. The Constitution specifies those instances when delivery is necessary, and impeachment is not one of them. The cases I cited (and actually, there are more than two) stand for the general proposition that when the Constitution does not specifically require delivery for an action to be effective, then delivery is not required.
Moreover, the position that the Speaker of the House can effectively veto or suspend the action of the whole House is, to put it mildly, constitutionally anomalous. Would this mean, for example, that the Chief Justice (who presides over the Senate when a president is tried) or the Vice-President (who presides in other impeachment trials) could veto a senatorial conviction simply by refusing to deliver it to the convicted officer? Of course not.
Professor Feldman has done fine work in the areas of his concentration (such as law and religion) but he does not have a background in impeachment, in general constitutional structure, or in Founding Era jurisprudence. It’s unfortunate he’s gotten himself into this situation.
Rob Natelson
Professor of Law (ret.)
The University of Montana


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