Balkinization: On the eve of trial . . .

Comments:

I expect Roberts to punt most rulings back to the Senate. That preserves his self-identification as a "neutral", which I think he cares about more than the substantive issues. Also, the Senate would be very hard-pressed to overrule Roberts -- which I'm sure he understands -- and so he can be a good soldier by letting the Senate majority control the case.

# posted by

Mark Field : 1:46 PM

On point 1, it's worth understanding that the word "Trial" in the Constitution doesn't mean this is anything like an actual trial. It's just a placeholder for what is actually a kind of unique procedure.

So the normal concerns about trials don't apply here. Republicans control the process, and they will guide this towards a fairly quick acquittal, maybe after some witnesses are deposed, maybe not.

And then we will get on with the 2020 election, which is as it should be. And if the Ukraine stuff is actually important to voters, the Democratic nominee will use it as an issue; if it isn't, the nominee will not.

With respect to Chief Justice Roberts, it really doesn't matter, because again, the outcome is foreordained. He's presiding over what will be a television show.

# posted by

Dilan : 2:53 PM

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# posted by

Joe : 2:56 PM

Usually, the vice president is presiding in an impeachment trial (for judges or other officials) and they wouldn't be active either.

I'm no expert on impeachment procedure, but I seem to recall Robert Byrd, as President pro tem, presiding over judicial impeachments in the 1980's, rather than H.W. Bush, who was veep.

# posted by

Dilan : 2:58 PM

There were two precedents here and in both cases the Chief Justice made sure to not put his neck out. I saw some reference that Chase did it a bit early on but was pushed back upon & I believe decided to not do that much. The role is "presiding officer" and that implies not much of a role. Usually, the vice president is presiding in an impeachment trial (for judges or other officials) and they wouldn't be active either.

The unpredictable nature of the trial (up to a point) is notable & basically was part of the weighing for the Democrats here. Basically, even with a supermajority removal vote rather unlikely, there was enough of a chance that something useful would occur that it was on balance to do it for them. Plus, that adds some charm to neutral observers.

To underline, like any number of things, the simple end result is not the only thing that matters. A person might run for office knowing they will lose. The run still might have a purpose. Many litigate knowing they very well might lose and it still has a function. Many people propose legislation, submit some procedural vote or any number of things knowing they have little chance of winning the whole thing. They still might get some benefit from doing so. Impeachment of Trump is of this caliber long term.

I think Mark is basically correct but any Chief Justice is not likely to do much. His old boss didn't. Also, I figure the Republicans will try to avoid any ties (Chase broke at least one tie). Roberts is constitutionally made a presiding officer for largely symbolic reasons to provide an overall sense of propriety to the affair and functionally this might overall mater somehow.

If he had absolutely no effect, why not just have Pence preside? But, there is little reason to think he will play much of an active role. Still, repeatedly, people don't speak in absolutes. They say something like "nearly no" or something. So, maybe along the edges it will matter. We shall see.

# posted by

Joe : 3:06 PM

To underline, like any number of things, the simple end result is not the only thing that matters.

Yes and no. The basic problem here is that the purpose of this proceeding is probably little more than to send the message to Democratic base voters who are pissed off at Trump that the Congressional Dems are doing something.

Which is, I guess, fine. But there's way too many discussions of all this that pretend like there's going to be some sort of evidentiary breakthrough in a trial that convinces Republicans to convict. Which is not true.

And further, I suspect impeachment actually does very little for Dems electorally. Dems who hate Trump don't really need much motivation to vote. They will vote. On the other hand, nobody's convincing anyone with these proceedings.

I think everyone will benefit from a quick proceeding (including both parties and Roberts). The election looms.

# posted by

Dilan : 3:11 PM

Yes, if it is not a presidential impeachment, it would follow the normal rule for presiding officers of the Senate -- either the vice president or the person designated.

# posted by

Joe : 3:29 PM

# posted by

Ron2 : 3:34 PM

Yes and no. The basic problem here is that the purpose of this proceeding is probably little more than to send the message to Democratic base voters who are pissed off at Trump that the Congressional Dems are doing something.

I don't see the 'no' -- you are just diminishing the value but the value is there even if the person is not convicted. I find this summary a tad too dismissive but that doesn't really matter. The constitutional body is the House & they can decide the politics even if two guys online disagree or agree with them.

Which is, I guess, fine. But there's way too many discussions of all this that pretend like there's going to be some sort of evidentiary breakthrough in a trial that convinces Republicans to convict. Which is not true.

If "too many discussions" is "any," fine, but I'm not seeing that many people thinking there is much of a chance that Trump will be removed. The idea is that maybe a few Republicans will allow witnesses and that will help bring out more information and/or advance, on the stage of impeachment as compared to one of a million hearings that occur for every president (not three in history) underline what Trump and company did.

Impeachment or some lawsuit etc. can be seen as silly if we put forth some strawman of what actually is being expected from it. Now "people" might be loathe to simply say "we have no chance in hell" so some might not simply say "we will lose," but even there few really are hoping for some Perry Mason moment.

# posted by

Joe : 3:39 PM

I agree that the "referee" C.J. Roberts will simply swallow his whistle as the numerically larger criminal accomplices slam the minority and their clever lawyers into the turnbuckles prior to casting them through the ropes. Sic transit gloria mundi.

It's a mistake to view this in this fashion. This is really the danger of taking the word "trial" too seriously.

This is a political proceeding. Nobody's getting screwed here, any more than the Democrats are ever getting screwed when they lose a Senate vote. Nor were Republicans screwed in the House impeachment proceedings, where Democrats controlled the votes.

The President will not be removed because Republicans control the Senate. That is the outcome called for in the Constitution. There's no "criminal accomplices" here. That's perfectly legal, and it is also perfectly legal for the Democrats to persuade the electorate that the President should be removed.

# posted by

Dilan : 3:40 PM

Balkinization attracts the weirdest spam. No mundane Nigerian princes or OTC Viagra, but shariah-compliant cleaning services. Rest assured, dear spammer, that if I ever have need of these I will be in touch.

# posted by

James Wimberley : 3:40 PM

The idea is that maybe a few Republicans will allow witnesses and that will help bring out more information and/or advance, on the stage of impeachment as compared to one of a million hearings that occur for every president (not three in history) underline what Trump and company did.

That's silly, though. The public has made up its mind about whether they think Trump is corrupt or not. The people who think he is corrupt don't need these witnesses; the people who don't won't be persuaded by them.

I think you underestimate the extent to which politicians take the stage either (1) just because the process is available to them or (2) because they are publicity hounds who orgasm when a camera is pointed their way. It isn't some grand strategy where public opinion is actually going to be shifted.

Democrats had constituents who wanted an impeachment, and they had the power to do it. Republicans have constituents who don't want him removed, and they have the power to prevent it. Nobody's going to be persuaded of anything. All the rest is just politicians putting on a show.

# posted by

Dilan : 3:43 PM

Cleaning spam or spam regarding some pesticide company seems to be attracted to platforms that use this blogger software. Charming it's bilingual now.

# posted by

Joe : 4:19 PM

One may read good one, here in " Lawfare " about that dispute between the House and senate:

" The Senate Impeachment Trial: Call the Witnesses or Concede the Facts "

Here:

https://www.lawfareblog.com/senate-impeachment-trial-call-witnesses-or-concede-facts

# posted by

el roam : 4:24 PM

I'll be surprised if there are any witnesses called in the Senate. It just isn't in the Senators' personal interest.

First, it is unlikely that the House Democrats genuinely think they can prove (For "Persuades people who didn't already hate Trump" values of "prove".) Trump guilty if they bring witnesses. They had all the opportunity they needed to call witnesses before the House, (Without even any exculpatory witnesses permitted!) and failed even to persuade every Democrat that the case was worth pursuing. They didn't even bother going to court to obtain witnesses Trump objected to. Clearly they didn't think further witnesses would profit them.

Second, if they get to bring witnesses, so does Trump, that is unavoidable. Now they have to deal with exculpatory witnesses, and questions being asked that Schiff can't prevent from being answered.

Third, Trump's obvious defense is to demonstrate that it was reasonable to think there was corruption to be exposed. Do they really want Trump calling witnesses to impeach their probable nominee?

That covers the Democrats. Neither do the Republican Senators have any reason to want witnesses. Because if witnesses who would incriminate Democrats are called, retaliation is almost certain, and many Republican Senators have skeletons in their own closets, too. Corruption is a bipartisan game in Washington.

So, from the Senators' viewpoint, the best trial is a short trial without witnesses. The Democrats can play that as not being permitted a real trial, while not putting up any effective demands for witnesses, the Republicans minimize the chance of tit for tat evolving into mutual assured destruction.

# posted by

Brett : 4:41 PM

This is a political proceeding. Nobody's getting screwed here, any more than the Democrats are ever getting screwed when they lose a Senate vote. Nor were Republicans screwed in the House impeachment proceedings, where Democrats controlled the votes.
I'm not a member of either party, I just don't like seeing representative democracy screwed by timid Congress critters and corrupt leaders in the DOJ/OLC.

# posted by

Ron2 : 4:54 PM

House Dems (and others, including non-Democrats like Rep. Amash) actually think Trump is guilty and that additional witnesses will help prove this. They also have said that witnesses will in general help to bring out the truth as a whole. It is not just about "hating Trump" or "people who hate Trump."

They didn't actually have an ability to call witnesses akin to now. Bolton, e.g., was blocked & now is saying the impeachment trial would be an appropriate time for him to testify if he was called. So, no, they did not have "all" the same opportunity.

Democrats, including Senator Schumer, are aware that Republicans might also call witnesses & say that they think it is worth it all the same. They invited Trump to call witnesses in the House. He did not but they surely left that open.

Republicans as a whole don't want witnesses, that is apparent -- it is not about 'skeletons in their own closet' though. They realize Trump is guilty (even if they honestly think it is not something for removal) and don't want even more evidence to come out to make that obvious. Also, Trump himself doesn't want that and as McConnell said, they are following his lead.

OTOH, there is actual pressure on Republicans to have an actual trial, including witnesses, such as suggested by poll numbers, and a few Republicans especially after people like Rand Paul and Mike Lee were pissed off on Iran might actually see it in their best interest to have witnesses. Since after all, they figure obviously he still we be acquitted. If four Republicans actually will do that remains to be seen.

# posted by

Joe : 5:31 PM

Chris Christie was being interviewed by Dan Abrams on SiriusXM today, and he made an obvious point. The most likely Republicans to vote for witnesses are those in blue states like Collins. But if the vote for witnesses succeeds, the President will demand Hunter and Joe Biden as witnesses, and that would just put them in another tough spot. They actually want to be seen as supporting witnesses but don't want to actually open the can of worms of calling them.

I'm not a member of either party, I just don't like seeing representative democracy screwed by timid Congress critters and corrupt leaders in the DOJ/OLC.

We are having an election in 2020. Democracy is still working fine.

They didn't actually have an ability to call witnesses akin to now. Bolton, e.g., was blocked & now is saying the impeachment trial would be an appropriate time for him to testify if he was called.

There's actually an important point here. This is totally untrue.

The House COULD have called Bolton. They would have then had to litigate. They might very well have won their case. Indeed, they might have won their case on any number of witnesses. Or, alternatively, they could have lost, which would have meant they weren't legally entitled to call them.

That didn't happen because Pelosi's caucus wanted an immediate impeachment that they could use in 2020 without having the process drag through the election year.

Which is, again, fine. Politicians do political things. But it is inaccurate to say the Democrats were denied witnesses. They CHOSE not to enforce their subpoenas in court to get witnesses. Because this is a political process. The Democrats are just as political as the President and the Republicans are.

Republicans as a whole don't want witnesses, that is apparent -- it is not about 'skeletons in their own closet' though. They realize Trump is guilty

And this is just a whopper. Indeed, ANY lawyer of minimal intelligence would know this isn't true.

If you have an INNOCENT client, and two choices- a quick dismissal, or winning a full trial- which do you choose?

You NEVER want witnesses if you can win a defense verdict without them, and it has NOTHING to do with guilt.

# posted by

Dilan : 5:44 PM

"There's actually an important point here. This is totally untrue."

Bingo. If they'd really wanted those witnesses, they'd have fought for them.

They could have gotten expedited process, might very well have already have heard from them if the President's case for blocking their testimony was as facially invalid as they claim.

But, of course, if they had litigated that blocking and lost, it would have been terrible optics to charge Trump with obstruction of justice for winning in court.

In the Senate trial they will not even want the witnesses they called in the House, because they will lack the ability to shut down lines of questioning that they enjoyed, and used extensively, in the House hearings. And they will face witnesses they could themselves block being called in the House.

The existing evidentiary record, while not complete, consists of what the Democrats wanted to be in the record. If it is expanded in the Senate, it will be in directions the Democrats will not want.

They can't, of course, admit that. But they will not be fighting for witnesses come the Senate trial.

# posted by

Brett : 7:16 PM

Garard: The first is that once a trial begins it takes on a life of its own. This is why most people avoid them: they are unpredictable. If the Senate decides to hear from live witnesses, then the Majority Leader will learn the hard way that he cannot control this process.

Please...

The Senate will offer a negotiated political dog and pony show whose parts have been assigned and results are known to the players. McConnell and a handful of other powerful Republicans will lead the Trump defense, the RINOs will pretend to equivocate, and the Dems will get their camera time decrying the evil orange man and yelling cover up, before every single Republican and probably a couple Dems representing states like WV and AL will vote against removal.

Meanwhile, Trump will hold one or two more mega rallies in swing states portraying this farce as the swamp attempting to impeach his voters and those voters will make another $25 million or so in small donations to the Donald's overflowing war chest during the "trial."

The second point is that we will quickly learn whether the Chief Justice wants to play an active role.

Roberts would rather dance barefoot on broken glass than preside over this political dog and pony show. While I would dearly love to see him rule on objections against hearsay, speculation and opinion (you know, the entire Democrat case), the C.J. will do as little as he can get away with.

Remember the Kavenaugh hearings? Same election year, made for TV bull sh_t.

# posted by

Bart DePalma : 10:43 PM

CNN Tweet: Lev Parnas, Rudy Giuliani's associate, said their efforts were "all about 2020." "That was the way everyone viewed it," Parnas added, disputing Trump's claim that the push for investigating the Bidens stemmed from concerns about corruption in Ukraine. https://cnn.it/2teAZdj

“That was the way everyone viewed it”

Here we go again. Michael Cohen 2.0. Dem prosecutor indicts Trump associate for fraud and lies, then the defendant tours the usual suspect Democrat media outlets offering hearsay, speculation and opinion concerning alleged Trump acts he did not personally observe, and we are all supposed to believe them.

# posted by

Bart DePalma : 1:57 PM

First day: Roberts presiding, nothing really of note, except that impeachment has a lot of ceremony. Graham, a House manager in the Clinton impeachment, being on the escort committee bringing Roberts over does seem a tad fitting.

# posted by

Joe : 2:39 PM

"Here we go again."

It has become a predictable tactic: Find somebody associated with the target, prove to them you can nail them on something serious, anything really. Then offer a plea deal where you go easy on them for that, even drop it, so long as they plead guilty to doing something bad with your actual target, and start badmouthing them.

Doesn't even require that the "something bad" be illegal, or that you be able to prove it, since it's a plea deal. And your actual target never gets the opportunity to clear their name, because you don't indict them.

# posted by

Brett : 2:58 PM

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# posted by

Joe : 3:13 PM

Yes, it is a "predictable tactic" for someone to try to give up key information in order to get a better deal & if they provide enough (including "receipts" such as the stuff turned over by Parnas), they will be given one. Plea bargaining of this sort is basic in the criminal system and is also present in a somewhat similar form in the civil system. It also is done in every day life in various ways. There is really nothing corrupt about it on basic principle though the means can be hinky such as nondisclosure agreements arising from sex offenders or the like.

[Obviously, we should not just take what this sort of person says on face value without more, but again a lot of paperwork was also handed over & we can balance what is said with what is known. Also, it is clearly something that should be completely investigated, with him and others interviewed by the relevant parties as possible.]

The government does not give up things in these situations generally if you are not able to prove it, especially if part of the deal is to turn state evidence and/or giving up stuff that is used to prosecute others. It doesn't require "beyond a reasonable doubt" type standards, but the average prosecutor will require high standards. These are also spelled out normally in general best practices standards of operation.

This case is a tad different given the people actually involved include the chief executive (whose personal lawyer is closely connected with this character) and perhaps (surely if this was a Democratic AG, the usual suspects would think the evidence present makes this likely, but it is someone who is working for someone with the right enemies, so we get another take) Barr (his exact role is less clear than the guy whose personal lawyer is directly involved).

# posted by

Joe : 3:17 PM

Joe:

Political partisans abusing their government power to prosecute associates of a political opponent for the purpose of defaming and destroying the opponent is as corrupt as it gets.

Do you honestly believe these prosecutors would have ever investigated and charged these targets absent their relationship to Donald Trump?

Doesn't that cause you any unease at all?

# posted by

Bart DePalma : 6:58 PM

There were a few typos in Bircher Bart's comment which I've fixed:

Political partisans abusing their government power to push foreign governments to prosecute associates of a political opponent for the purpose of defaming and destroying the opponent is as corrupt as it gets.

Do you honestly believe these pushes for investigation and charges of these targets would ever have happened absent their relationship to Joe Biden?

Doesn't that cause you any unease at all?

Looks like Bircher Brett has stiff competition for least self aware person...

# posted by

Mista Whiskas : 7:24 PM

Of note, Parnas is being prosecuted by the office of a U.S. Attorney put in place by the Trump administration. The idea that that prosecutor is pushing Parnas to deal dirt against Trump for a better deal is the kind of ludicrous, incoherent nonsense we get from our conspiracy kooks. It adles the brain.

# posted by

Mista Whiskas : 7:28 PM

Mr. W:

The Obama administration and Ukraine were investigating Bursima and its Russian oligarch owner long before Trump ever arrived on the scene. After the oligarch paid off his son Hunter, Joe Biden intervened to stop those investigations. What again is remotely corrupt about reopening the investigation of Bursima or opening an investigation of its apparent bribery of the Bidens?

If POTUS Donald and Don Jr. had done what the Bidens did, you would be screaming for impeachment and I would be by your side. However, because the Bidens are on your political team, you and every other Democrat will defend them now and not experience a moment's unease casting a ballot to make Papa Biden POTUS.

Democrat corruption and hypocrisy extends from top to bottom, from the political class to their voters.

# posted by

Bart DePalma : 7:43 PM

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# posted by

Mista Whiskas : 8:12 PM

Note in Trump's perfect phone call he never uses the name Burisma or the word corruption but does single out the Bidens by name twice. Consistent with the many officials who testified that it was understood he was interested in a political hit not fighting corruption in general or Burisma in particular.

"Do you honestly believe these pushes for investigation and charges of these targets would ever have happened absent their relationship to Joe Biden?"

# posted by

Mista Whiskas : 9:59 PM

Mr. W;

I corrected all of your DNC talking points the last time we discussed this farce.

You Dems keep pretending there is a high crime or misdemeanor, the GOP will pretend to try them and Trump will keep employing your donation to his reelection campaign to fire up his voters and collect dump trucks full of campaign contributions.

# posted by

Bart DePalma : 11:21 PM

Bart, the next time you "correct" anyone about anything will be the first.

The daily reminder that you and your wife are incapable of having children is one of the best things about this blog..

# posted by

Bartbuster : 1:26 AM

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# posted by

Ron2 : 1:13 PM

We are having an election in 2020. Democracy is still working fine.

1. Surely you have read Prof. Lederman's commentary on that.

2. Neither of my 2 corrupt Senators is up for re-election this cycle.

3. The Congressional delegation of my state bears no resemblance to the electoral preferences of the state's population as a whole.

# posted by

Ron2 : 1:18 PM