As the header photo from the Babylon Bee notes, the execrable Adam Schiff actually argued for impeachment over elections. Why, the results can’t be trusted! This from people who do all they can to promulgate election fraud.
Having watched the entirely—only two hours—of the opening statements by the Defense in the Senate impeachment trial, I thought it wise to produce a brief impeachment trial primer. Most Americans have turned the whole mess out, and rightfully so. The Prosecution case was a disaster for the D/S/Cs. The Defense case, taking a fraction of the time wasted by the prosecution, all but wiped out the prosecution non-case. Their follow up, completed in far less than the allotted 24 has entirely wiped it away. But why? What should Americans be looking for? How can someone not schooled in the law know how to analyze events?
Let us begin with the assumption that readers of this scruffy little blog are open-minded, willing to accept objective fact as objective fact and alter their opinions and beliefs accordingly. I certainly am, which is why I do my best to provide links to everything I am presenting as fact, and also do my best to clearly delineate between fact and opinion. For the same reason, I’m always glad when you, gentle readers, point out errors. It’s awfully hard to proofread one’s writing, and I appreciate the help.
Let us also accept this proposition: no politician is a saint. None are possessed of ultimate virtue. This applies to Donald Trump. We must judge and accept others on the totality of their character and their actions. We all fall short of the glory of God. We all make mistakes. We all lose our tempers and say and do things we know are wrong. We all make foolish mistakes. We all annoy others, and as Mark Train said:
Nothing so needs reforming as the habits of others.
We might, cynically, accept that we have to be more accepting of the faults of politicians, because they tend to have more faults than the average bear, but human beings are all we have with which to deal, so we’d better be at least a bit forgiving of human nature if we expect the same courtesy.
I’ll be speaking as though we’re dealing with criminal law. It has been observed that Impeachment is a political act, but because the protections of the Bill of Rights and the Common Law apply to all Americans, the same standards of proof, due process, and analysis of evidence apply. Such are the foundations not only of our law, but of our culture—if we can keep it. The political element primarily explains why a given politician may reject objective fact and due process in favor of political advantage, particularly if they embrace the “we have the man, now let’s find the crime” method of seeking social rather than actual justice.
Standards of Proof: Objective fact is the gold standard. This may be established and supported by first person witness testimony, transcripts, physical evidence, audio and video recordings and similarly reliable materials. Circumstantial evidence is not specifically objective fact, but might tend to support it. Presumption, supposition and guesses are not objective fact. Opinion is not, and is normally allowed only from qualified experts, and not as to guilt or innocence. Hearsay is not objective fact and with some narrow exceptions, is not allowed in court. Mind reading, which is much of the House Manager’s case, is also not acceptable.
Prosecutors: They are expected, above all, to seek justice, which means they have an obligation always to speak the truth–the whole truth. They have an obligation to provide to the defense all exculpatory evidence, and not to hide witnesses, or suddenly “discover” witnesses during a trial. Leaking to the press is unethical. The power to prosecute is a very destructive power. Prosecutors have the resources of the state behind them. “Oh, but defendants have due process!” This is true as far as it goes, but due process is expensive—ask General Flynn–which is why the state provides defense counsel for people that can’t afford it. Because impeachment is not strictly a criminal matter, a president facing impeachment is on his own.
The Defense: They are responsible for zealously defending their client. In a sense, they keep the prosecution honest. No attorney is ever supposed to lie, or to allow anyone giving testimony to lie, but defense attorneys often stretch these boundaries. In so doing, they often ignore the law and facts, and argue emotion while attacking the police and the prosecutors.
This is a very brief, non-nuanced review. How can we tell when something is wrong with a prosecutor’s case?
Competent prosecutors will not bring weak cases, particularly cases that primarily rely on circumstantial evidence, or that can’t be proved beyond a reasonable doubt in court. They absolutely don’t want their own witnesses contradicting their narrative. Because they have the evidence and facts on their side, they do not need to resort to exaggeration or lies. They want the jury to consider only the facts and the law. Certainly, the prosecution and defense present the facts in ways most favorable to their case, but prosecutors are expected, even more than defense attorneys, to always act in the interests of justice rather than doing whatever is necessary to win.
Politics muddy the waters, but Americans should expect their representatives to tell the truth, and to be honest at all times. I know: continue reading when you’re done laughing; I’ll wait. When the topic is the impeachment of the President, honesty and seeking justice are of the utmost importance. Far more is at stake than the job of a single man. Still, the temptation to play politics is, for some, overwhelming. Power and money are at stake.
Some—mostly D/S/Cs—are arguing a president—Republicans only—may be impeached for whatever reason the Congress chooses. As long as they have a majority in the House and 2/3 of the Senate, Presidents serve at the pleasure of the Congress. No crime is necessary. The Constitution suggests apart from bribery and treason, which are serious crimes, “high crimes and misdemeanors” are the standard. By that, the Founders did not mean “misdemeanors” as in traffic tickets, but very serious offenses akin to bribery or treason, not having policy disagreements or refusing to help a D/S/C House frame a president. Impeachment is a nuclear option, to be used in only the gravest extreme. The current circus does not, objectively, qualify.
The surest way to tell if prosecutors have no case is when they behave like the sleaziest defense lawyers TV and the movies have ever depicted. Such prosecutors try to convince a jury to ignore evidence—facts—and the law, and to act emotionally. Rather than presenting objective fact, they attack the defendant and the defense. They leak to the press. They appeal to the worst aspects of human nature, hide exculpatory evidence, take statements out of context, hide and manufacture witnesses, and attack any and everyone that might pose a threat to them.
I’ve come to call such cases backward cases or “Bizarro”—as in the Bizarro World of the Superman comics—cases. Perhaps the best example of this was the trial of George Zimmerman, where the prosecution did exactly what I’ve noted. Their witnesses, with very few exceptions, actually proved the Defense case. The prosecution’s hand-picked witnesses actually proved self-defense. The prosecution hid exculpatory evidence, and urged the jury to ignore the facts and the law. No rational, professional prosecutor would have brought that case, but interestingly, it was brought for political reasons. Anyone interested in that case might best begin at Update 32, which covers the beginning of the trial, and carry on from there in the Trayvon Martin Archive.
We see all of this in the House Manager’s case against President Trump. With a single exception, none of their witnesses have first hand knowledge of the issues at hand. Their testimony is double and triple hearsay, and admitted presumption. The only direct fact witness who actually spoke with Mr. Trump, Ambassador Gordon Sondland, admitted Mr. Trump told him he wanted no quid pro quo from the Ukrainians. He also admitted his belief in a quid pro was based entirely on his own presumptions. It was Sondland’s promiscuous gossip based on his presumptions that provided the basis for hearsay testimony of many of the other witnesses. Every one of them admitted they have no knowledge of any crime committed by Mr. Trump.
No crimes are alleged, and the Managers have presented no facts that support the two vague charges they have lodged. Their 24 hour-long case consisted of supposition, innuendo, and endless repetition. They insulted the jury, and called the President a dictator, which is self-refuting. If he were, there would have been no impeachment, and anyone calling him such wouldn’t be around to make the accusation. The President is accused, in effect, of committing foreign policy, of exercising his lawful authority, and of not cooperating in D/S/C attempts to destroy him. They denied him even the least due process and conducted much of their “investigation” in secret.
It must be noted the Trump Administration has never failed to obey the orders of the courts. It must also be noted the House D/S/Cs chose not to call a variety of witnesses, and chose not to go to the courts to sort out differences between themselves and the Executive branch, which is the only lawful way to deal with such issues. Now, with an incomplete record supporting unconstitutional articles of impeachment, they demand the Senate do the investigative work that was their constitutional duty. These are examples of objective facts.
For more specific information, Matt Margolis at PJ Media provides ten ways D/S/Cs have damaged their own case.
As this is written, the Defense has completed their case, and in so doing, did what any competent prosecutor would do. They stuck to the facts and the law. They exposed the House Manger’s concealment of testimony and witnesses, using the witnesses’ own words. They did not engage in speculation and repetition, nor did they resort to hyperbole. Byron York at The Washington Examiner explains:
‘The House managers didn’t show you this testimony from any of these four witnesses,’ Purpura said. ‘Why not?’ Time and again, Purpura pointed to facts that tended to support the president and asked: Why didn’t they tell you this?
In the bigger picture, the Trump team highlighted what Purpura called ‘six facts that have not and will not change:’
1) The call transcript ‘shows that the president did not condition either security assistance or a meeting on anything.’
2) Zelensky and other Ukrainian officials ‘have repeatedly said that there was no quid pro quo and no pressure on them to review anything.’
3) Zelensky and other Ukrainian officials ‘did not even know the security assistance was paused’ at the time of the call.
4) No witness testified that Trump himself said ‘that there was any connection between any investigations and security assistance, a presidential meeting, or anything else.’
5) U.S. security assistance was restarted on Sept. 11, 2019, and Trump met Zelensky on Sept. 25 ‘without the Ukrainian government announcing any investigation.’
6) Trump ‘has been a better friend and stronger supporter of Ukraine than his predecessor.
These too are objective facts. The managers concealed all this, and much more, from the Senate. They did not, for example, tell the Senate aid to Ukraine was delivered on time—earlier actually—and no quid pro quo was ever exacted. Nor did they tell the Senate the Trump Administration gave Ukraine the military aid denied them by the Obama Administration. They also did not tell them why they have hid the very identify of the “whistleblower” who isn’t, the person they relied on for justification for the impeachment inquiry, and they’ve kept his testimony secret.
Consider this too from The Washington Examiner:
During his Friday presentation, Schiff tried to shame Republicans by playing a clip of the late Sen. John McCain talking about the threat that a democratic Ukraine posed to Putin’s vision for the region. Yet he neglected to show the speech in which McCain described the Russian takeover of Crimea as ‘the ultimate result’ of Obama’s ‘feckless foreign policy where nobody believes in America’s strength anymore.’
When Russia first invaded Ukraine in March 2014, Schiff tried to deflect blame away from the Obama administration and onto the intelligence community. That same month, the California congressman cautioned against a tough response to Russia’s aggression, warning that ‘the challenge is, we do need to have some kind of working relationship with Russia. And while we can impose these costs and take these steps, we’ve got to be mindful of the fact that they can impose their own costs on us.’
As I’ve noted, this is a backwards case. The Defense presented evidence, using the Manager’s own witnesses, or at least the witness testimony they’re not continuing to hide. The D/S/Cs continue to conceal much exculpatory evidence. The Defense relied on the Constitution, precedent and objective evidence.
The Managers will continue to hurl insults, manufacture witnesses on a predetermined schedule, demand the Senate do the investigation they refused to do, accuse the Senate of conducting a cover up, and try to convince Americans President Trump must be impeached, because they hate him and if they don’t impeach him, he’ll be reelected (an objective fact from their own lips). They’ll continue to try to convince people that when President Trump exercised his legitimate executive powers, he was somehow doing something wrong. They just know Trump is bad, and they don’ need no stinking proof! They want us to believe their mere assertions that he’s bad should be convincing, particularly if they repeat them often and aggressively enough. Trust us! Ignore the facts and act on emotion!
If they are able to trick foolish Republicans–it’s not called “The Stupid Party” without cause–into doing the job they failed to do and call additional witnesses, there will be no end to it. Just as in the Kavanaugh case, additional “bombshell” witnesses will continue to materialize, dragging out the trial into eternity. And as in the Kavanaugh case, they will accomplish nothing other than further smearing Mr. Trump, everyone that supports him, and distracting the public from the D/S/C’s near total lack of accomplishment, and the ever mounting evidence of their genuine, seditious crimes.
How do we determine the truth in this case? If it’s a backward case, the truth always rests with the Defense. Let objective facts, such as the transcripts, even the full testimony of the Manager’s witnesses, be convincing. But there is more. We are also dealing with issues of power and self-government. If any backward impeachment succeeds, we become a parliamentary government, not a representative republic. All that will be necessary to remove any future president will be a parliamentary majority. Even if such a case does not succeed, the tactic can be used to paralyze government, and influence elections.
That’s the point of a backwards impeachment.