IMPEACHMENT, IMPEACHMENT, IMPEACHMENT

A historic day. Never before has a president been impeached twice. Years trying cases provokes the following discussion of but two of the many legal issues surrounding this Senate proceeding.           

                     I          

First is the issue of Trump testifying. It was my sense from the git-go that impeachment manager Raskin’s letter inviting Trump to testify was nothing more than gamesmanship. I do not believe for one moment that the managers wanted Trump to testify.

Raskin is a professional. He is not stupid. Certain basic strategic rules apply to all trials. Rule number one is, "Don't ask a question unless i) you know how the witness will answer it. or ii) what you will do if the witness misbehaves." 

Applying that rule to your direct case is easy because you will have rehearsed your witness exhaustively. You have gone over his direct testimony again and again, and planned what he will say to every imaginable question on cross-examination.

It's a little more complicated when you call a hostile witness. In that case, the rules for cross apply: You ask only questions as to which you know the answer. And if the witness departs from the truth, or goes on an evasive rant, you are prepared. You have the tools at hand to rein him in: such things as prior inconsistent statements or testimony,  contradictory documents, or other solid evidence with which to confront him. Lacking that, you don’t ask the question.

 And if the witness goes on a rant, fails to answer the question or is otherwise unresponsive, you have a judge who will cure the problem for you. He will rein in the witness. 

But there is nothing ordinary about this trial. There is no judge to help you control a nonresponsive witness. The "judge" here is the President pro tem of the Senate, Democrat Patrick Leahy, serving his eighth term in the Senate. Leahy might lecture witness Trump, but to no avail. Trump is an expert at evading direct response to a 

question. No matter how simple the question, you can always count on Trump giving a long evasive response and blaming everything on the Democrats, Nancy Pelosi, Antifa, Black Lives Matter, and the Socialists. And every answer will have 100 lies in it, and tracking each one of them down will take weeks and in the end just mess up the prosecution’s presentation.

Moreover, examining Trump at the trial will produce no new evidence. All the evidence of guilt is on the public record. Raskin need only bring a television set to the Senate floor, and there's no way Trump or the Republicans can cross-examine that.

It was predictable that Trump’s lawyers would immediately reject the offer. No sentient lawyer, having Trump as a client, would rely on that man's testimonial behavior. That’s courting disaster.

And the threat that a rejection of the invitation to testify would lead to an inference of guilt doesn't mean very much in this political atmosphere. This is not a jury of unbiased citizens who will be instructed by an impartial judge to use their common sense in reaching an impartial verdict.

Conclusion: score one for the Democrats: but a field goal, not a touchdown. They made their point and escaped a Trump filibuster consisting of a repetition of every frivolous item in his lawyers’ briefs.

                               II.

Now, a much more consequential issue: the effect of delay on the verdict:

It is the accepted wisdom of most political observers that Trump will be acquitted because there is no way the Democrats can patch together 67 votes for conviction. I count only 49 Democratic jurors. Presumably, President pro tem of the Senate, Patrick Leahy, will not have a vote because he is presiding and is therefore not a juror. If I am correct about that, the House managers would need 18 Republicans to vote to convict  —almost 1/3 of the entire Republican caucus. Most “smart people” have suggested the maximum Republican vote for conviction will be approximately four or five. 

But I have always thought delay works against Trump, and the Democrats know it.

Start out with the fact that the House passed the Articles of Impeachment on January 13, just seven days after the insurrection. Nevertheless, speaker Nancy Pelosi did not present the Articles to the Senate until Monday, January 25. According to extant Senate rules, that body was required to commence the trial on Tuesday, January 26, and to proceed thereafter “day-to-day.”

But the Senate did not do so. Instead, Schumer and McConnell discussed the “organization of the Senate” given its 50-50 constituency, and decided the trial would not start until February 9, almost a month after impeachment. Moreover, because President Biden wanted the Senate to be available to debate and pass his Covid response plan, Schumer and McConnell resolved that their members could "walk and chew gum at the same time" and as a result, the Senate trial would proceed for half of each proceeding day, and other business would occupy the other half. 

The result is that a trial that could possibly have been concluded by January 16, while Trump was still president, may not now be concluded until late February—as much as a month and a half after the January 6 attack on the capitol building and its inhabitants.

The more time the authorities have to investigate the rebellion, the worse it's going to be for the bad guys. As of yesterday, there have been 242 arrests in connection with the insurrection riot. How many of those knuckleheads will stand firm and take a jail sentence when offered prosecutorial consideration in exchange for cooperation? And how many who are identified as being part of the leadership for the attack will stand firm and risk a 20-year jail sentence for sedition, especially some who now feel they have been "seduced and abandoned" by Trump, who made a post hoc speech castigating “mob violence?”

Who will the conspirators turn out to be? Will there be members of Congress or members of their staff? Will any be found to have prior knowledge? Will there be leaders or staff members of the Republican party? Will any White House personnel be named?

Bottom line, the longer the investigation goes on, the greater the risk that Trumpian acolytes will be revealed to have been involved, and that will make it more difficult for Republican Senators to vote to acquit. 

That's only half of it. Every Republican Senator who is inclined to follow party discipline and vote to acquit now knows two things: 

1. It is not clear how much party discipline remains. McConnell has made clear his dislike for Trump and has even suggested he may vote to convict. And staunch conservative Liz Cheney, one of 10 house members who voted to impeach, nevertheless won a 2-1 Republican caucus victory defeating an effort to remove her from her Republican leadership position. And,
2. Perhaps even more persuasive is the fact that every Republican who voted to acquit will need to hold his or her breath for the ensuing months (years?) when it becomes likely that more evidence will be unearthed, and i) Trump and his allies will be revealed to have been guilty of attempted insurrection, and ii) the current Trumpian defenses are disgraceful, unamerican, unpatriotic lies. Those Senators who voted to acquit, especially those who need to run for reelection in 2024, will spend the entire election cycle trying to explain away their despicable votes.

Optimism? Yup. The Dems’ likelihood of success is slim, but I doubt we will see a unified Republican caucus voting to acquit. This impeachment is different from the first one. All it would take is one high-up Trumpian sycophant to blow this game wide open. Sort of a “Bad Guy Tom Brady?”

A bientot.