I. PRELIMINARY REMARKS.
A. IMPEACHMENT PREP BY THE HOUSE.
The “delay” in passing the articles of impeachment from the House to the Senate is “timely enough.”
Whatever advantage may have been obtained by Speaker Pelosi, by withholding the articles of impeachment until mid-January, I expect that the time was used:
a. To identify and prepare the managers,
b. To assign critical roles to try the case,
c. To draft the written and oral arguments to launch the prosecution at the Senate trial,
d. To prepare to present the evidence the House already found proving the articles of abuse and obstruction beyond any reasonable doubt. and, I hope,
e. The leadership and managers prepared a ground game to attack the unfair trial that the Senate Majority Leader has planned for the impeachment trial.
B. THE DELAY OBTAINED SOME ADVANTAGES.
No question, Speaker Pelosi’s delay over the congressional recess, scared Senate Majority Leader McConnell to jump the gun, and say outright he was going to protect Trump at the trial. You don’t usually get a tribunal to confess it’s bias against your cause.
Next up, there’s Trump, who is so strong when bullying, but characteristically cowardly in defense.
Given to tweet storms of desperation, this brought on a thunder storm, Trump was almost blindly frustrated in this case, for finally being called out for his crimes against the state, namely, for his shakedown of the Ukraine President to help his presidential election this year and his obstruction of congressional efforts to investigate his crimes against the state.
Trump can’t get pas the fact that he’ll never “erase” the stigma of this impeachment — no matter how badly McConnell manipulates the trial. This will be the first line in his obit.
During the “delay,” even more evidence of Trump’s shakedown and obstruction were uncovered, and Trump’s National Security Adviser Bolton surprised the political class by offering to testify at the Senate trial.
The latter offer is particularly significant, no matter whether Bolton was acting in good faith, because it flies in the face of Leader McConnell’s effort to avoid any witnesses, especially, you may suspect, any witness that Trump has purposefully told not to testify.
Finally, during this delay, Trump’s questionable kill order for the top Iranian General, a kind of whack (not wag) the dog event, proved that every day Trump remains in office, the nation is at risk, not just that he may act above the law, but that he presents an existential threat, a clear and present danger, to the nation.
II. THE SENATE PROCESS
The most likely model for this Trump Impeachment Trial will be a variation of the rules in the Clinton Impeachment trial.
[For a deep dive into the Clinton Impeachment trial, this is the official report of those proceedings in their entirety]
The devil is of course in the details, how what went before in terms of process will be tweaked or changed dramatically to advantage Leader McConnell’s client, the President himself.
We may expect, however, that the process will follow these general outlines –
- The House Managers divide up the presentation to the Senate of the two articles, abuse of power and obstruction, different managers taking on different responsibilities, so that different managers will:
a. sum up the facts,
b. take one or the other of the two articles to expound upon,
c. discuss the import of the facts in support of one charge or the other, citing print excerpts or videos of the testimony taken before the Intelligence Committee, and
d. state the constitutional law and considerations that apply to each article.
2. The President’s counsel will respond in defense along similar grounds but, of course, contradicting the facts and law in one fashion or other.
The Senators will then submit questions to the Chief Justice and they will be asked and “answered” (argued) by the Managers and the President’s counsel.
The more controversial question in the Clinton impeachment, and perhaps more challenging in the Trump administration is how testimony will be considered. Depositions, Subpoenas and witnesses will be decided in this next phase; this will be the most controversial aspect of the Senate Trial. Mr. Trump has said, whether he means it or not, he wants witnesses. McConnell wants no witnesses because he thinks that best for Mr. Trump but also to protect his Conference’s majority control after the 2020 elections.
There are 22 Republican Senators up for election in 2020.
There were only three witnesses in the Clinton impeachment, and their audio/visual transcripts were made available, but the Witnesses did not appear in the well of the Senate to testify.
Then, there will be the closing argument by the Managers and the President’s Counsel.
Lastly, is the Debate among the Senators and their Vote. In the Clinton impeachment, the Senators discussed the merits of conviction of the two charges in closed session for three days, but then voted in open session, failing to get a sufficient vote to convict Clinton.
III. RELEVANT COMPARISONS BETWEEN THE CLINTON & TRUMP IMPEACHMENTS
IMPEACHMENT PRIMER:It is of some interest to compare what the Republican House Managers said in the Clinton impeachment, as those views plainly appear to be the standard by which we may and should judge the articles lodged against Trump that will be heard in his ”imminent” Senate Trial.
That said, it appears quite fair to say that Mr. McConnell and the Republican Senate Conference have already contradicted what they said in the Clinton impeachment, as compared with what they are saying and will continue to say with even more force during the course of the upcoming Senate Impeachment Trial of Mr. Trump.
The remarks that follow are found in the Clinton Senate Impeachmeant trial including the references to the historical and legal and constitutional context that creates the ”awesome” mechanism by which a Republic may remove a Chief Executive.,,
In the Federalist, Alexander Hamilton wrote:
”The subjects of [the Senate’s] jurisdiction are those offenses which proceed from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”
This view was a descendant of a long history of impeachment. In the impeachment of Lord Chancellor Macclesfield in 1725, Sergeant Pengelly summed up the purpose of impeachment, that it was ”for the ”punishment of offenses of a public nature which may affect the nation.”
The British legal historian Holdsworth said the impeachment process is the mechanism in service of the ”ideal …[of] government in accordance with law.”
Rep. Canady, a Republican House Manager, charged with prosecuting President Clinton at the Clinton impeachment trial said, ”Those who were impeached and called to account for ’high crimes and misdemeanors’ were ’those who by their conduct threatened to undermine the rule of law.’”
Rep. Canady, a House Manager, said,
“there is not a bright line separating official misconduct by a president from other misconduct of which the president is guilty. Some offenses will involve the direct and affirmative misuse of governmental power. Other offenses may involve a more subtle use of the prestige, status and position of the president to further a course of wrongdoing. There are still other offenses in which a president may not misuse the power of his office, but in which he violates a duty imposed on him under the Constitution.”
Rep Canady argued,
”[P]erjury and obstruction of justice are by their very nature akin to bribery. When the crime of bribery is committed, money is given and received to corruptly alter the course of official action. When justice is obstructed, action is undertaken to corruptly thwart the due administration of justice. …. The fundamental purposes and the fundamental effect of each of these offenses …is to defeat the proper administration of government. They all are crimes of corruption aimed at substituting private advantage for the public interest.”
Rep. Canady said,
”The Constitution imposes on the president the duty to ”take care that the laws be faithfully executed” and ”[a] president who commits a calculated and sustained series of criminal offenses has – by his personal violations of the law – failed in the most immediate, direct, and culpable manner to do his duty under the Constitution.”
Rep. Canady observed,
”Will a President who has committed serious offenses against the system of justice be called to account for his crimes, or will his offenses will be regarded of no constitutional consequence? Will a standard be established that such crimes by a president will not be tolerated or will the standard be that – at least in some cases, a president may ‘remain in office with all his infamy’…”
Rep. Graham said,
”You don’t even have to be convicted of a crime to lose your job in this Constitutional Republic if this Body [the Senate] determines that your conduct as a public official is clearly out of bounds in your role. Thank God you [founding fathers] did that, because impeachment is not about punishment, Impeachment is about … restoring honor and integrity to the office.”
[To dig deep into the history of impeachment, there is the report, ”Constitutional Grounds for Presidential Impeachment”]
IV FUNDAMENTAL FAIRNESS REQUIRES AN IMPARTIAL TRIBUNAL
At the heart of the House Managers argument must be that our tribunal, the Senate is not an impartial arbiter.
This must be stated fully and explicitly, not implied, not just said to the media.
In other words, this is not and should not be treated as a subordinate issue.
In any trial, a litigant is entitle to challenge whether the court or the jurors are impartial to the cause they are to consider.
At one point in the Clinton Impeachment trial, a Senator objected to being called a juror and Chief Justice Rhenquist said they sat as a court.
However ridiculous that reasoning as a matter of metaphorical fiction, that each Senator is a court, the question of bias remains.
We are on notice that McConnell has agreed to take care of Trump.
We have four Senators who have received Trump funds to resist impeachment and conviction.
We have another Senator, Johnson, who is a fact witness, who spoke to Trump.
We have the VP Pence who is implicated in the Ukrainian deal.
None of these Senators may be considered impartial to the cause and acting in accordance with constitutional “due process,” another way to say “fundamental fairness,” dictates that biased jurors and court officials must be removed, as they cannot take the oath that requires they be fair and impartial.
This should be a threshold motion by the House Managers put at the feet of Chief Justice Roberts even as they tender the articles of impeachment to the Senate before the Senators take the oath to be impartial.
While we consistently refer to the House Managers as prosecutors, we need the mind set of a criminal defense lawyer who knows that the tribunal is biased and that he must challenge that bias or be considered to have waived the argument, and suffer an inevitable outcome because the tribunal is polluted.
If Chief Justice Roberts refuses to remove those Senators with an open conflict and bias, then the Managers should demand a vote by the entire chamber and put them on the record, and object that a trial with these Senators in the venire or components of the “mass” court is no trial at all.
In our courts, justice is a coincidence of the system, not a consequence of it.
We have to fight in criminal courts to obtain that coincidence in whatever particular we may.
We have a plain and clear understanding that this Senate tribunal is biased.
Perhaps it cannot be saved.
But it is our obligation to make the arguments.
We should not play the fool and pretend it is anything even vaguely resembling a “fair trial” by suffering the indignity in silence.
V. TRIAL CHECKLIST — OF THINGS TOP BE DONE.
We should ask right off the start that a subpoena issue for Trump to testify.
We should also file a demand for subpoenas for those witnesses that Trump withheld from the House committee proceedings including NSC Adviser Bolton.
The content of their testimony, if inculpatory, will prove why Trump sought to withhold what they had to say of Trump’s misconduct, that is material and relevant to both articles of impeachment.
Resistance to produces these witnesses, in an obvious way, shows the obstruction by Trump and McConnell persists into the Senate trial, conjoined with Republican Senators who fail to object.
Otherwise, we should call for direct and corroborating witnesses, Sondland of course, particularly what was overheard in Kiev, and with the legal authorities, less that false argument be made that it’s only hearsay, when the objectors well know that an admission is an exception to the hearsay rule and admissible, just as the statements of Trump’s conspirators are exceptions to the hearsay rule and admissible as evidence. We have other witnesses, Taylor, Vindland, and more.
We should make the point that this is different than Clinton’s impeachment when depositions were taken and the Senate decided if the persons would testify.
We already have deposition transcripts, and live testimony, so the witnesses should be allowed to testify directly without any delay. Like at a “real” trial. Imagine that.
Those in the House and Senate should avoid putting themselves in a position where they are bargaining witnesses and agreeing to other witnesses, who are not relevant to the proceeding.
That’s not how a real case is run.
And this impeachment trial should be no exception.
B. ADMISSIBILITY OF PUBLIC STATEMENTS.
We should seek to admit the tapes of public statements, admissions each, by Trump, Mulvaney and Giuliani, and the readout of Trump talking to Zelensky, as admissible admissions, and supply cases and authority, and ask for a pretrial ruling.
C. ADMISSIBILITY OF DOCUMENTS.
The text messages, emails, phone records should all be admitted. They should be premarked. They satisfy various tests of reliability and are probative for that reason.
D. TO DISMISS THE ARTICLES WITHOUT A TRIAL WOULD PROVE BEYOND ANY DOUBT THAT LEADER MCCONNELL AND TRUMP CAN’T “STAND THE TRUTH.“
There should be a challenge to McConnell’s indicated efforts to dismiss the “prosecution” right at the start by a majority vote to defeat the constitutional presumption that there will be a trial, and that this impeachment proceeding is a proceeding not amenable to a simple dismissal by a majority vote.
E. WEIGHT OF EVIDENCE.
As for how to handle the evidence, this is a civil proceeding, not a criminal proceeding, and the standard of proof, argued from the outset should be a preponderance of the evidence, not clear and convincing, nor beyond a reasonable doubt.
(Of course, any fair minded court or juror would be hard pressed to defy the truth of the matter.)
F. THE SENATORS MAY NOT JUDGE BASED ON POLITICS.
There should be an instruction demanded of Chief Judge Roberts and instructed to the Senators that these proceedings are not political, that a Senator may not make a political decision, but that each Senator must make the decision based on the constitution, the law, and the facts, in other words, the standards the Republicans asserted in the Clinton impeachment.
That is after all the significance of the oath the honest Senators are taking.
The public discussion that this is political is an argument that the decision is merely partisan and one need not even read or hear the testimony — see Graham’s outrageous remarks on this score.
G. VOTE IN CLOSED SESSION?
In Clinton, the Senate went into a closed session to discuss the articles and conducted the voting for conviction or acquittal in public.
In Trump, the Senate should follow this practice, and perhaps extend what occurred in the Clinton impeachment, by also voting for or against Trump’s removal from office in a sealed proceeding.
(It may very well prove what some of our pollyanish commentator suggest, that there are Republican Senators who disapprove of Trump’s high crimes, and would vote that way if they could. In other words, even in private, these closet patriots still will stand with Trump.)
At the end of the day, the House managers should have: (1) proven the articles, the charges against Trump, and, (2) made it clear to the nation, to the people who vote, that the Senate was an unjust and unfair tribunal, and that the trial was a railroad to protect Mr. Trump from removal from office, and that the Senators had no interest in informing their constitutional discretion by the facts and law.