FAST TAKE ON IMPEACHENT TRIAL SO FAR

I have watched the proceedings on and off. It is a Rorschach test, hence these few legal take-aways:

"Hearsay":

In the House, the Republicans insisted there was no acceptable proof that Trump demanded Ukraine's cooperation in smearing Biden, upon pain of his withholding $391 million of pre-approved defense funds. The Republicans' defense was that all the evidence produced by the Democrats was "hearsay." The Republican representatives pounded away on that claim, over and over again.

That was an absurd defense because the proof that Trump did it was overwhelming and direct, and was not hearsay.

First, Sondland gave direct evidence of what the President insisted on. He testified on what the President said to him. Because the President is the putative "defendant" in this trial, his "out of court" statements are admissions, and would be admissible in a court trial. Sondland's testimony on what the President said is not hearsay.

Second: The July 25 "transcript" of what Trump said to Zelensky is Trump's statement, adopted by him. It is not hearsay.

Third: A number of highly credible witness reported what the President's authorized personal representative, Clown Giuliani, said and did. The words and deeds of the President's personal agent are binding up on the agent's principal, Mr. Trump. That testimony is not hearsay. 

Fourth: Therefore, even if one applied the Federal Rules of Evidence, the evidence of Trump's exploitation of Presidential power for personal advantage would be admissible.  But please note, the Federal Rules of Evidence do not apply to impeachment trials. Impeachment is semi-political, not strictly judicial! But Trump's team nevertheless insisted on applying Court evidentiary rules to the House proceeding.

Now we come to the Senate, where Trumpers insist this is not a court, and therefore we should not apply court evidentiary rules!

Why the reversal in their position?  Because in a court, the House Managers, (the prosecutors) could call witnesses and could demand documents from the defense! That is what happens in every trial, and if a judge denied them that right, he would be overruled. The notion of a trial without witnesses really is absurd as it sounds. Nevertheless, Mitch McConnell, working in league with the White House, now asserts that court rules don't apply here.

Now we come John Bolton. Here is a guy, a Trump appointee, who is a percipient witness to the President's crime. So Bolton writes a book in which he says he saw and heard the  President commit the crime in question. Not only that, he is willing, if subpoenaed, to come and testify to that.

The Trump team responses?

i) The President: Tweets that Bolton is lying.and he never said any such thing. So we have an out-of-court "swearing contest" on the truth of the Bolton "testimony."

ii) Mitch McConnell: Employed all his political wiles to prevent Bolton from appearing and submitting to the oath and cross-examination. Why?  Because the testimony will skin the President alive, and further inasmuch as court rules do not apply here, practicality takes over and witnesses take too long and the Trumpers want the trial completed before the State of the Union Address and before the Super Bowl!

iii) Jay Sekulow, the conservative talk radio host/lawyer, a frequent commentator on Fox News and the Christian Broadcast Network, who heads up the Trump defense team. does a legal somersault. In the course of his argument, he contradicts McConnell and re-invokes the court rule barring hearsay!  He argued that "Not a single witness testified that the president himself said that there was any connection between any investigation and security assistance, a presidential meeting, or anything else." 

"Not a single witness." 'That, I suggest, is a mis-statement of fact that overlooks Sondland's testimony. But more important, in his summation, Sekulow had to deal with the elephant in room: John Bolton, who did not testify in the House because the President told him (and everybody else) not to.

 But Bolton has now publicly said he is the witness Sekulow is looking for. He is the witness who says he heard "the president himself say" there was a direct connection between the sought for Ukrainian investigation of the Bidens and the hold on $391 million in security assistance.  

Finding himself between a rock and a hard place, Sekulow actually asked the senators to enter the Twilight Zone of the English language. He urged senators to ignore the Bolton evidence because it is "unsourced." I heard him say that several times! "Unsourced?" This is 1984-speak, where words mean whatever the government wants them to mean on any given day. Bolton's statement is not unsourced. Duh, the "source" for the John Bolton statement is John Bolton.

And Mr. Sekulow knows that because on December 30, the White House received a copy Bolton's manuscript containing the Bolton statement that the President told him he was withholding the Ukraine money until they gave him what he wanted: their interference in the 2020 election via slandering Democrats and Biden in particular.

Sekulow concludes, miraculously, that therefore the Senate should not call John Bolton. For that, he wins, hands down, the Kellyanne Conway Medal for Trumpian Locution.

The entire defense of Trump is, to use the descriptive of the late Justice Anton Scalia, "applesauce."

Dershowitz:

I confess I could not listen to the entire Dershowitz speech. I could not listen to this bright lawyer preen and pander to his new political hero and client, Donald Trump. Dersh has been doing that from day one of the Trump presidency. His credits on Fox News are substantial.

I do not criticize Dershowitz for his previous clients. He was entitled to represent Jeffrey Epstein, O.".J. Simpson, and other "legal celebs." In those cases he was an advocate for his client.  But he is not entitled to proclaim that he appears in the Trump impeachment trial as an impartial observer, a lawyer who is an advocate for the Constitution, and offering to prove his impartiality by telling us he voted for Hillary Clinton. That is pure bullshit.

He has, in the past, been part of the overwhelming majority of legal and constitutional scholars who have concluded that "high crimes and misdeanors" means abuse of powers and/or gross misconduct in office. It does not require a crime. For one thing, there was no federal criminal code in 1787. None. Moreover, judges have been impeached and convicted for non-criminal maladminstration of office (e,g,,drunk on the bench) and even Professor Turley, the constitutional scholar who was the Republican designee in the House testimony, conceded that if the facts alleged against Trump were proved, he should be impeached and convicted. There was no requirement of proof of a specific crime.

Dersh's conversion to the view that an actual crime is necessary to convict and remove a President is not persuasive. Again, he is entitled to urge a legal proposition that favors his client, but he is not entitled to tell us to buy his spiel because it comes from the Honorable Harvard Emeritus Professor non-partisan Alan M. Dershowitz. Last night Dersh was just another Trumper  -- a salesman trying to sell us rotten fruit. I couldn't watch it.

Not sure where all this comes out, except to say I have a healthy respect for the Mitch McConnell playbook!

A bientot!

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 As my regular readers know, there is no fixed schedule for these posts. If you want a notice of each new posting, send me an email and I will add you to the notice list.  mlondon34@gmail.com

IS CHIEF JUSTICE ROBERTS UP TO THE TASK?

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Another challenge for Chief Justice John Roberts.

The Constitution is, in many respects, vague. And no part of our founding charter has more gaps than the impeachment clauses.

At the time of drafting of the Constitution, the colonists were still recovering from a bitter 8-yr. war for independence, in which their adversary was the armed forces of the British King George III -- the tyrannical monarch who had stripped them of their right to self-government. So while The Founders understood the need for an executive department of any effective government, they were wary of recreating anything close to a monarchy. The result was a compromise, a balanced structure: i) a legislature (it is no happenstance that the creation of Congress is the first Article), ii) an Executive, and iii) a Judiciary.

One of the checks in this balance was to give the Legislature the power to remove any member of the Executive branch, including the President -- by impeachment.

But the Founders chose not to provide many details regarding the impeachment process.  All they told us in

Article I was that i)"the House shall have the sole power of Impeachment,"  and the Senate "the sole power to try all Impeachments," ii) "When the President of the United States is tried, the Chief Justice shall preside," and iii) It takes a two-thirds vote to convict, and the punishment is limited to removal from office. 

That's it. The Article says nothing about witnesses, hearings, or any other procedural aspects in either house, beyond the requirement that "the Chief Justice shall preside" at the impeachment trial of a President.

(Indeed, it is only until we reach Article II that we learn the standard for Impeachment and Conviction is "Treason, Bribery, or other high Crimes and Misdemeanors.")

Now, facing the third-ever presidential impeachment trial in history, our leaders grapple with procedural issues left unspecified by The Founders, and those procedural issues are potentially of great significance on the issue of this President's guilt.

The most prominent question today is should the Senate hear witnesses. Precedent suggests the answer is "yes"-- there have been fifteen prior impeachment trials in the Senate, (two involving Presidents) and all have had witness testimony. And there is no Constitutional bar against witnesses in what the Constitution refers to as an impeachment "trial." But Mitch McConnell, the Majority Leader in the Senate, has thus far vowed to ignore precedent and will bar the calling of relevant and material witnesses. He even considers that his Constitutional oath to do "impartial justice" permits him to coordinate every aspect of  trial management with counsel for the President, who objects to witnesses.

But wait a minute. While Mitch McConnell is not  mentioned in the Constitution, John Roberts is. Indeed, it is the Chief Justice of the United States who shall "preside" over the trial, not the Majority Leader. So why isn't it up to John Roberts to decide whether witnesses shall appear? (Black's Law Dictionary lists the definition of "preside" as "to hold court.")

Absent anything in the Constitution to the contrary, it seems obvious that the witness dispute should be resolved by the ruling of the constitutionally appointed "Presiding Officer" of the trial.

Why isn't "Let Presiding Officer Decide" the guiding principle here?  Because the Senate, without a shred of Constitutional authority, has adopted a set of rules that would effectively strip the Presiding Officer of much of his power to "preside" over the trial.

Are those Senate rules Constitutional? I keep a pocket copy of the Constitution in my backpack. I have re-read it a dozen times. I see nothing in there giving Mitch McConnell, or a majority herd of senatorial sheep, the power to limit the Chief Justice's Constitutional power-- and duty-- to "preside" over this constitutionally mandated "trial."

Is there a remedy for this illicit power grab?  Yes. The remedy is for the Chief Justice of the United States to exercise his sworn duty and "preside" over the trial unencumbered by unconstitutional Senate rules.  

If he deems it relevant to call witnesses, he has the power and the duty to do so, notwithstanding the Trumpist views of Messrs. McConnel, Cipollone, et. al.

But even assuming the Senate did get, from some unknown source, the right to make impeachment rules that "fill in the blanks" left by the Founders, whence comes the assertion that the Senate can overrule the Presiding Officer on any issue? The claimed source is the Senate's Impeachment Rule VII, which provides:

"The Presiding Officer on the trial may rule on all questions of evidence, including, but not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions...,"but later in the Rule the Senators granted themselves the right, by majority vote, to overrule the Presiding Officer with respect to those rulings.

What the Constitution giveth, the Senate taketh away.

Rule VII is also the basis of numerous media articles that erroneously state that every ruling by the Chief Justice is subject to being overturned by the will of the Majority Leader, or the majority, and therefore the appointment of the Chief Justice is "ceremonial." Talk about "fake news." I would not be surprised if you cannot find the word "ceremonial" in your copy of the Constitution, because I cannot find it in my copy either.

Conclusions:

1. The Senate lacks authority to adopt any rule placing any limit whatsover on the Chief Justice's power to preside over this trial. In his capacity as Presiding Officer, Justice Roberts  has unlimited authority to compel the attendance of witnesses and the production of documents. If the occasion arises, he should do so.

2. Even if one were to assume Senate Rule VII passed Constitutional muster, the rule is quite limited, and would not prevent the Chief Justice from issuing a subpoena requiring the attendance of a witness or the production of documents. The ability to overturn a ruling on relevance, is not a grant of total authority to overrule every act of the Presiding Officer. And the presiding Officer, should so rule. 

Will our Chief Justice rise to the occasion and do the right thing here? My bet is "Nyet."

A shorter version of this piece has been posted on Time.com:   https://time.com/5768467/john-roberts-mitch-mcconnell-witnesses/

A bientot.

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As my regular readers know, there is no fixed schedule for these posts. If you want a notice of each new posting, send me an email and I will add you to the notice list.  mlondon34@gmail.com