Impeachment Trial, Day 3: a Few Observations

10 mins read
U.S. Congressman Adam Schiff speaking with attendees at the 2019 California Democratic Party State Convention at the George R. Moscone Convention Center in San Francisco, California. Photo by Gage Skidmore. (CC BY-SA 2.0)

We start with House Manager Jerrold Nadler.

Nadler killed it today with this summing up: “A president who abuses his power in order to kneecap a political opponent and spread Russian propaganda conspiracy theories, or even worse, compel a foreign nation to interfere in our election, is a president who attacks the very foundation of liberty.”

He then went on to explain why “abuse of power” warrants removal from office.

Basically, a Senator who says “Abuse of power is not impeachable” is saying that the Constitution grants the president the power to use his office for corrupt purposes. Yesterday Schiff defined “corrupt” as using the office for self-enrichment and putting the President’s personal needs ahead of the nation’s. (The Constitution includes the emoluments clause for a reason.)

Looking to the federal criminal code for impeachable offenses trivializes the process, and overlooks the fact that the president, by virtue of his office, can cheat and steal in a manner unavailable to ordinary citizens. The federal criminal code applies to ordinary citizens.

It would make no sense to enact criminal statutes that can only apply to one person: The person in the oval office.

The House was therefore smart to stay away from the federal criminal code. Moreover, using the criminal code for impeachable conduct confuses people into thinking that this is a criminal trial. It is not.

The Constitution makes clear that no criminal punishments apply in this trial. Punishment can extend no farther than removal from office and inability to hold future office.

In a criminal trial, a defendant risks losing liberty, property and (in capital cases) life. That’s why criminal trials have such a high standard of proof (beyond a reasonable doubt), and why so many due process protections apply. It should be easier to remove a corrupt president than to put someone into the electric chair.

Rep. Silvia Garcia

Rep. Sylvia Garcia debunked the Biden-Burisma lies with a lengthy string of provable facts. She then said: “Do you know what else happened in May? [The month Operation Ukraine Shakedown went into full swing] A Fox News poll showed Biden beating Trump by 11 points . . . It wasn’t until Biden was beating him in the polls that he called for the investigation.”

In other words, Trump “had the motive, the opportunity, and the means to commit this abuse of power.”

She also addressed the GOP talking point that no witnesses had “first hand knowledge” of Trump’s intention when she said: “We heard from relevant witnesses with first-hand knowledge of the president’s corrupt scheme.”

Rarely is direct evidence of intention available, unless a defendant signs a confession. That’s why intention is usually proven with circumstantial evidence. (The law doesn’t distinguish between direct and circumstantial evidence. Both are admissible and can be used to prove wrongdoing.)

Anyone who reads detective novels knows what circumstantial evidence is. Circumstantial evidence is the proverbial smoking gun. If you enter a room and a person is holding a smoking gun, and someone else is dead on the floor, you can draw the inference that the person with the gun shot the person on the floor even without direct witness testimony unless you have a compelling evidence that something else happened.

Rep. Val Demings marched through piles of email messages and phone records, documenting all the contacts Trump had with the people carrying out Operation Ukraine Shakedown to obliterate the possible defense that Trump didn’t know what his underlings were up to.

Rep. Jeffries gave the context to explain why Trump’s request for a favor was, in fact, a demand.

In doing so, he obliterated the “no pressure” defense.

Adam Schiff, the oratorical master, wound up the evening with this: “We know what we’re dealing with with this president. . . You know you can’t trust this president to do what’s right for this country. You can trust he will do what’s right for Donald Trump.”

He then concluded with: “He should be removed. Because right and truth still matters. Otherwise, we are lost.”

(mic drop)

It is frustrating! In real life, and throughout our history, it has happened frequently in real courts. There was a time when a black plaintiff or defendant knew he would lose. When 19th century women brought lawsuits arguing that they were “people” under the 14th Amendment, judges basically rolled their eyes.

When Susan B. Anthony was put on trial for voting (it was illegal for women to vote) the judge would not let her speak in her own defense because as a woman she was considered “incompetent” to testify (like a child).

This generation (who came of age after the Civil Rights and women’s rights movements) are seeing it for the first time. It’s the same enemy. Susan B. Anthony, Martin Luther King, Jr., Thurgood Marshall, and all the other liberal heroes were up against the same forces.

That’s why I keep saying this is a long game. We push forward. The reactionaries push back. Right now they are pushing back hard, because they are a rapidly shrinking part of the electorate. When they lose this time, it will be harder for them to bounce back.

Yes. People who inherit something often think they’re entitled, and don’t have to work for it. I get it. I made that mistake. I thought history was on certain trajectory, and after the breakthroughs of the previous generations, our culture would naturally keep growing more inclusive.

The way to win isn’t to convert Hannity viewers. The way to win is get everyone else to vote.

We can’t reach the hard-core cult members. But we don’t need them. In 2018, the Democrats won with an 8 point lead. There’s no reason the Democrats can meet that, or do better in 2020.

If you want to see what an 8 point lead looks like on the electoral map, check out the results from the 1988 election.

The only time we’ve had the winner of the popular vote lose the electoral college has been in close elections. Eight points isn’t close. Trump can get 45.6 percent of the vote (a lot of people) and lose big time .

But if you look at his approval rating and compare his approval rating to how incumbents have done when running for a second term, you can see his chances of getting as high as 45% are slim to none. (Chart from 538)

It seems to me that the biggest danger in November is the anti-Trump vote either splitting, or people getting discouraged and staying home.

With Trump’s numbers, we’re looking at a blowout in November IF people work very, very hard. We’re wiser than we were in 2016. We get the dangers. . .

The biggest landslide in our nation’s history was 1964, when Lyndon Johnson won with about 62% of the vote. Those are numbers too big to manipulate. (Cheating works in close elections. Look at Florida 2000). Why do you think Trump embarked on Operation Ukraine Shakedown? . . .He embarked on Operation Shakedown because he knew he was going to lose big time. One thing Trump knows how to do is read polls. Giuliani is still in Ukraine trying to dig up dirt on Biden, but pul-lease, only cult members will believe the hogwash. Schiff and the House Managers right now are making sure that Americans totally get Trump’s game.

What will people do if, say, Warren is the nominee and, say, China launches a criminal investigation into her actions? They will laugh. Because they’ll know Trump is up to his stupid corrupt tricks again. Only cult members will be fooled.

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 CNN.com. 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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