Impeachment Trial, Day 1: A Few Observations

6 mins read
US Capitol Building
Scrumshus [Public domain], via Wikimedia Commons

What happened yesterday, in a nutshell: McConnell’s resolution set out this process:

  • House Managers have 24 hours to present their case
  • Trump’s defense has 24 hours to rebut
  • Senators have 16 hours to ask questions.
  • Then the Senators vote on whether to call witnesses and subpoena documents

Initially, the resolution required the 24 hour presentations to be made in 2 days, which would have meant 12 hour days with sessions going past midnight. McConnell did a last minute change, and said the 24 hours would be spread out over three days, creating 8 hour days.

I agree: Public opinion matters.

The Democrats introduced numerous “amendments” to call witnesses and subpoena evidence now. Each side had a few hours to make their arguments. After each amendment, the Senate voted to “table” the amendment (postpone) and decide the issue after the time for questioning. After each suggested amendment, 53 Republicans voted not to call the witnesses or issue the subpoenas now, and 47 Democrats voted yes.

The day was taken up by the House Managers describing in detail exactly which documents were being withheld by the White House, and what those documents and witnesses would show. Schiff explained, “Our job is to make it very difficult for you to say no.”

The strategy is to force the GOP to select between two options:

  • Acquit after refusing to view relevant evidence and hear relevant testimony or
  • Make the truth known to the American people.

Schiff did an amazing job, making obvious points in a straightforward way. He was also fabulous on rebuttal, making mincemeat of the GOP talking points.

Pat Sekulow, White House counsel, in contrast, was sputtering, making very little sense, and throwing out lies and talking points, like this: “The Mueller report came up empty on the issue of collusion with Russia. . . . There was no obstruction.” “When the Mueller report failed it devolved into Ukraine. . .”

Sekulow, of course, wants to wait many months for the courts to decide whether Trump has to comply with subpoenas. “That’s why we have courts,” he said. Except that Congress gives the sole power of impeachment and removal to Congress. Rarely is the Constitution as clear. “Sole power” requires no interpretation:

In response to Trump’s lawyers arguing that Trump had the right to challenge subpoenas in court, Zoe Lofgren said, “It’s been suggested that we should spend 2 – 3 years litigating this issue. US v Nixon is still good law. US v. Nixon still governs the president.”

To give an example of the kinds of things Sekulow said, there was this bit about “lawyer lawsuits” and the Constitution “demanding” lawsuits:

(The clip is from the closed caption on C-Span)

As an example of the kind of arguments made by White House Counsel, Cipollone argued that it was a contradiction for House Managers to say “We have overwhelming evidence” and “we want more evidence.”

Nope. He’s wrong. There can be

  • overwhelming evidence of guilt, and
  • much of the truth can still be hidden.

Zoe Lofgreen (House Manager) argued brilliantly for witnesses and documents early on instead of later: She marched through the history of impeachments and demonstrated that ALL 15 impeachment trials introduced new evidence, and in each impeachment, the Senate started with the documents. Bringing them in later makes no sense.

Schiff argued for getting the documents before the 16 hours of questioning. “16 hours is a long time to ask questions. Wouldn’t you like to be able to ask about the documents during those 16 hours?”

[Answer: Depends whether you want to hide the truth, or get to the truth.]

That will make any Senators who acquit on the Obstruction of Congress Article look silly, right?

I expect the defense to be disorganized and chaotic, but White House Counsel Pat Cipollone gave a clue about what is to come when he said, “The president has done absolutely nothing wrong.” Contrast this with Clinton’s defense: Clinton admitted he lied about an affair, he apologized, but argued that was not worthy of removal. Clinton’s apology is here. Clinton went into his impeachment with 73% approval.

The entire presentation was devastating to Trump’s defense. I believe that’s why McConnell kept reminding everyone that the question of witnesses and documents is in the resolution, and why Susan Collins released this statement during the hearing:

Also, part way through the hearing, it was reported that the White House would not move for an early dismissal of the case:

Presumably that is because the White House knows such a motion will lose. This, by the way, is what Pelosi’s delay accomplished. Had she sent the articles immediately, there’s no doubt McConnell would have succeeded in moving for a quick dismissal.

Originally posted on Musing about Law, Books, and Politics.
Re-posted with permission.

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Teri has written novels, short stories, nonfiction for both young readers and adults, and lots of legal briefs. She is currently working on a book on disinformation to be published by Macmillan Publishers. Her political commentary has appeared on the NBC Think Blog and Her articles and essays have appeared in publications as diverse as Education Week, Slate Magazine, and Scope Magazine. Her short fiction has appeared in the American Literary View, The Iowa Review, and others. For twelve years she maintained a private appellate law practice limited to representing indigents on appeal from adverse rulings. She believes with the ACLU that when the rights of society's most vulnerable members are denied, everybody's rights are imperiled. She also believe with John Updike that the purpose of literature is to expand our sympathies. Teri lives with her family on the beautiful central coast in California.

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