Tuesday, October 08, 2019
Pro Se Impeachment Defense
Gerard N. Magliocca
In Tennessee Johnson, a 1942 Hollywood movie about Andrew Johnson, President Johnson delivers a dramatic closing argument in his defense during his Senate impeachment trial. This speech, of course, never happened. Johnson's attorneys, including retired Supreme Court Justice Benjamin Curtis, were the ones who argued on the President's behalf.
Trump has been subject to lots and lots of lawsuits. He seems to like to let the professionals handle that sort of thing. At least in official proceedings.
Since I found it after the close of the last thread, found this interesting article on Rehnquist's experience as a presiding officer.
Unlike the Democrat House, which refuses to vote to start impeachment proceedings not only to protect their frosh in Trump districts, but also to deny the GOP minority subpoena and cross examination powers, the GOP Senate will permit a full defense.
If the Dems actually put their House members on the record with an actual impeachment vote and if that resolution passes (neither of which are close to foregone conclusions), Trump should hire a blue chip legal team led by Guiliani to present a defense in the Senate complete with demands for full due process like prohibiting hearsay and requiring all witnesses to be disclosed, appear in person and be placed under oath for cross examination by both the POTUS lawyers as well as the Senators themselves, many of whom are former criminal attorneys.
Trump can comment to the voters through twitter and press conferences.
Finally, the AG should announce that Justice will seriously consider any Senate criminal referrals for perjury and/or obstruction of justice concerning witnesses who lie during this trial.
This Democrat House star chamber farce based on secret witnesses, hearsay and innuendo would not last a day under the light of such actual due process.
Who can forget that famous tweet of Trump's? “I think that I’m a better speechwriter than my speechwriters, I know more about policies on any particular issue than my policy directors. And I’ll tell you right now that I’m going to think I’m a better political director than my political director.”
He does famously have a high opinion of himself.
But, in all seriousness, Trump does know how to delegate, and he's only going to take over the defense in the Senate if he thinks it's a purely political process with no risk of legal jeopardy.
FWIW I think Republicans should have subpoena power in the impeachment hearings.
But I also think that the WH should produce documents requested by the Democrats.
And it's hard to argue that Pelosi needs to agree to give the Republicans subpoena power at the same time the Dems' own subpoenas are being resisted.
also think that the WH should produce documents requested by the Democrats.
And it's hard to argue that Pelosi needs to agree to give the Republicans
sikiş Republicans subpoena power at the same time the Dems' own subpoenas are being resisted.
The ball is in the Democrats’ court.
There is no impeachment proceeding for which to request evidence until the House votes to start one. Trump should not provide the Democrat leadership with squat until this occurs.
Even once there is an actual impeachment proceeding, Trump should deny subpoenas which are irrelevant to the claimed investigation and are clearly meant to harass or engage in fishing expeditions, then tell the Democrats to go to court.
If the Democrats would rather vote on an impeachment resolution with a count of “obstruction” (which is almost certainly the intent of making most of these requests), Trump should respond: “Bring it on!” As I noted above, the playing field evens out during a Senate trial.
Our resident Birther Bart is out in full force today. Of course he parrots the current party line (hearsay!) no matter how silly in this context. Of course he engages in the usual far over the top hyperbole (star chamber!).
Since the last thread here I've been quite interested in how 'the paranoid style' of over-the-top, sloppy reasoning conspiracy thinking, which sees what is not there and doesn't see what is, has become a majority mindset among today's conservatives and GOP. I re-read Hofstadter's "The Paranoid Style in American Politics." You can find it here: https://harpers.org/archive/1964/11/the-paranoid-style-in-american-politics/
It describes our Birchers quite well. Remember the current GOP and conservative leader 'made his bones' with the epitome of Bircher type thinking, Birtherism, and he foresaw the lemming like, reality denying, principle abandoning rushing to his defense of people like our Birchers: “I could stand in the middle of Fifth Avenue and shoot somebody and wouldn't lose any voters, okay?” (Brett and Bart would be on here arguing 'was the person shot Biden or his son? They were probably corrupt Democrat politicians so what's wrong with that, he's fighting corruption!').
Since this is a legal blog I'm interested in how this paranoid style, conspiracy thinking mindset has also entered the judiciary, especially at the highest levels. Think of Scalia's 'homosexual agenda' dissent or his diatribe in the immigration case. Also Thomas' footnote attacking the federal judge in the census question case as being conspiracy minded (remember, every accusation is a confession with these people) when he had, in fact, found significantly damning evidence (and more was to come!) [Thomas, presaging current events, wanted everyone to close their eyes to what was in front of them]). Any other examples?
"And it's hard to argue that Pelosi needs to agree to give the Republicans subpoena power at the same time the Dems' own subpoenas are being resisted."
My argument would be that if she doesn't want Trump to have a valid basis for resisting her subpoenas, she needs to hold that vote. Just as the Republicans held it for Clinton.
Notice that the Republicans gave the Democrats subpoena power, when they voted to open an impeachment investigation.
"the AG should announce that Justice will seriously consider any Senate criminal referrals for perjury and/or obstruction of justice concerning witnesses who lie during this trial."
Along the lines of every accusation is a confession, here is Bart directly before decrying 'star chamber' tactics calling for what is witness intimidation. The Constitution gives the House the 'sole' power of impeachment. I think any reasonable reading of that would prevent the kind of witness tampering Bart (being a 'star chamber' type of guy himself) would like to see. Impeachment is a political, not a judicial act. The house, having the 'sole' power in this area, can set it's rules (and consequences for breaking them). Other branches cannot intervene.
"The house, having the 'sole' power in this area, can set it's rules (and consequences for breaking them). Other branches cannot intervene."
You've got a case for the proceeding in the House. When it reaches the Senate, the House managers can't keep the Senate majority from referring a witness for prosecution for perjury before the Senate. Even if the House managers would prefer that perjury before the Senate be without consequence.
Given the latest back and forth, guess I should replace my comment, since it is in effect admitted that Trump doesn't get to tell the House how to set up its impeachment inquiry given it has "sole" authority to do so.
Yes, I also would not "prefer that perjury before the Senate be without consequences." In fact, lying to Congress is illegal even w/o it being perjury. Since even perjury is relatively rarely prosecuted, the "consequences" might be limited.
See, e.g., Brett Kavanaugh.
Members of the Trump Administration may lie to Congress as much as they want, as well as withhold subpoenaed documents and testimony. The Justice Department will not prosecute such malefactors, e.g. after the clearly perjured testimony of Commerce Secretary Wilbur Ross. Why should a trial in the Senate be any different? Would not William Barr's Justice Department find the prospect of such a prosecution absurd?
An example of how limited they are.
The limit of consequences is a lesson of ancient origin though since then there have been discussions on how to go about getting some. I reckon (on some level it seems unscientific) it shows the importance to many in the 18th Century to think there was an afterlife and final judgment. In a secular domain, we have more limited abilities.
As LK notes, the likelihood of prosecution does seem absurd though over the years limited cases of prosecution might be found. It is of some solace, limited as it might be, that in recent memory numerous political actors have been prosecuted. Prosecution or at least pressure to resign led to multiple changes in my own state of New York. There already has been prosecutions (see Mueller Report) and more will likely occur. There is also potential of civil penalties and so forth.
"Consequences" often are not as satisfactory as we would like and often amounts to changes of personnel and people in office though sometimes new policies and laws are passed too. There actually was some significant consequences (with prosecutions) regarding wrongdoing in the Nixon Administration even with the pardon of Nixon.
What will occur here will be seen. Perhaps, ala "Dick," in twenty-five years, we will have a satirical movie as well. (In all sitcom reruns, Trump's name at times pop up, once the daughter of a character talking about a play date with Ivanka.)
Mr. W: Since the last thread here I've been quite interested in how 'the paranoid style' of over-the-top, sloppy reasoning conspiracy thinking, which sees what is not there and doesn't see what is, has become a majority mindset among today's conservatives and GOP.
“Just because you're paranoid doesn't mean they aren't after you.” Joseph Heller
M. W: Our resident Birther Bart is out in full force today. Of course he parrots the current party line (hearsay!) no matter how silly in this context. Of course he engages in the usual far over the top hyperbole (star chamber!).
The reality is the modern Democrat Impeachment star chamber is a direct assault on our Republic and justice system.
For some time now, the accusations against Trump were delivered by anonymous Democrat bureaucrats through the Democrat media without corroborating evidence. The intelligence bureaucracy made this process even more opaque and unreliable by eliminating the requirement that "whistleblowers" make complaints based on their own personal knowledge, allowing them to instead offer double and even triple hearsay. This allowed a Democrat CIA bureaucrat with ghost writing Democrat attorneys to make a legally baseless "whistleblower complaint" against Trump based on double and triple hearsay claims of alleged spies on the White House staff concerning a call Trump made with the Ukrainian president.
In self defense, the White House released the actual transcript of the call between Trump and the Ukrainian president as well as a copy the "whistleblower complaint." The transcript put the lie to a week of Democrat media anonymously sourced reports falsely claiming Trump demanded Ukraine investigate the Bidens in exchange for US taxpayer cash. It also put the lie to the whistleblower complaint itself, which lied about or misrepresented the telephone call. However, NONE of this was reflected in subsequent Democrat media accounts, which continued to misrepresent the telephone call as a extortion attempt.
Based on this "evidence," none of which would be admissible in a court of law, the Democrat House leadership decreed an "impeachment inquiry" of the GOP POTUS without a vote of the members like that preceeding every other impeachment proceeding. The Democrat media is reporting the Democrat House leadership wants to race through this proceeding as quickly as possible with minimal hearings. After all, the "witnesses" are all secret and unavaliable to cross examine.
Yes, a star chamber is a very fair description of this partisan farce.
BD: "the AG should announce that Justice will seriously consider any Senate criminal referrals for perjury and/or obstruction of justice concerning witnesses who lie during this trial."
Mr. W: Along the lines of every accusation is a confession, here is Bart directly before decrying 'star chamber' tactics calling for what is witness intimidation.
Testifying under oath and the penalty of perjury is "witness intimidation?" Try basic due process.
Mr. W: The Constitution gives the House the 'sole' power of impeachment. I think any reasonable reading of that would prevent the kind of witness tampering Bart (being a 'star chamber' type of guy himself) would like to see. Impeachment is a political, not a judicial act. The house, having the 'sole' power in this area, can set it's rules (and consequences for breaking them). Other branches cannot intervene.
What does any of this have to do with the Senate trial and the crime of lying under oath to the Senate?
You're off the rails, Bart. They're holding hearings, calling witnesses, and subpoenaing documents. That's it. There's no Star Chamber there.
Indeed, if you don't like the Whistleblower complaint because it is anonymous and contains hearsay, you should want hearings. Because at hearings, they can call live witnesses who can either substantiate or contradict the allegations of the whistleblower based on personal knowledge.
Hearings? The Democrats not only declined to hold a vote to start impeachment proceedings, the Dem chairs are the ones issuing the demand letters and subpoenaes while their committees are out of town to give evidence in private meetings to staff.
The Dem chairs have called no witnesses with personal knowledge to testify in person and under oath in public hearing about what they observed. The current rumor is the Dems want the "whistleblowers" to call in their testimony with disguised voices with none of these due process safeguards.
Even if voices are disguised or identities concealed, there's still Republicans on that committee and they or their staff can cross-examine the witness. Which makes it... not a Star Chamber.
As I said, on the ultimate issue of whether Republicans should have subpoena power, I agree with you. Of course they should. If there are witnesses who can contradict the whistleblower's account, let's bring them in! If there are documents that do that, the committee should get to see them.
But this is an investigatory committee. In the end, all they can do is forward an impeachment resolution to the entire House anyway, and even if that happens AND the House votes to impeach, POTUS still gets a trial in a Republican-controlled Senate which is going to be very protective of him.
There's no reason to impose a bunch of artificial roadblocks on the investigation. There's no conceivable version of this process where the Republicans have no input or the President doesn't get to mount a defense and bring any evidence to bear in that defense.
Dilan: Even if voices are disguised or identities concealed, there's still Republicans on that committee and they or their staff can cross-examine the witness. Which makes it... not a Star Chamber.
Guarantee you that any such "whistleblower" hearing will be classified and hidden from the public primarily because the Dems do not under any circumstance want GOP members cross examining him about his party affiliation, his attorneys' party affiliation and donations, and his coordination with Schiff's office long before his lawyered "whistleblower report" was submitted on live television. What use is cross examination under those circumstances?
There's no reason to impose a bunch of artificial roadblocks on the investigation.
There is every reason, legal and political, for Trump to deny the Democrats fishing expeditions for the opinions and speculations of bureaucrats who have zero personal knowledge about the alleged subject of impeachment investigation, but may want to stick a shiv in the POTUS. For example, when Schiff attempted to call an EU ambassador who has no personal knowledge of the call to speculate concerning Trump's intent, the POTUS was completely correct to tell the lying Intel Committee chair to pound sand.
"a star chamber is a very fair description of this partisan farce."
This is all you need to know about Bircher Bart. The Star Chamber is infamous, in large part, for using techniques like torture. Even if you take Bart's fantasies about what is going on now that's light years away. It's just a propaganda ploy by a propagandist. That's what he is. Nothing else he says needs to be taken with an iota of seriousness.
"The transcript put the lie to a week of Democrat media anonymously sourced reports falsely claiming Trump demanded Ukraine investigate the Bidens in exchange for US taxpayer cash."
This is why the 'hearsay' complaint is ludicrous: the WH sources themselves confirm the damning evidence, that Trump both personally, and through his personal operatives, prodded investigations into his political opponent.
Mr. W: This is why the 'hearsay' complaint is ludicrous: the WH sources themselves confirm the damning evidence, that Trump both personally, and through his personal operatives, prodded investigations into his political opponent."
Sources? Are you really offering anonymous hearsay to corroborate anonymous double and triple hearsay?
Lol, Bircher Bart thinks recognizing the transcript and subsequent text of diplomats is 'star chamber.' The paranoid style par excellence!
the United States has been very very good to Ukraine. I wouldn't say that it's reciprocal necessarily because things are happening that are not good but the United States has been very very good to Ukraine...I would like you to do us a favor...There's a lot of talk about Biden's son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great...
"Did you ask the Ukraine to investigate Joe Biden?"
"No, actually I didn't,"
"So you did ask Ukraine to look into Joe Biden," Mr Cuomo asks.
"Of course I did," says Mr Giuliani.
"Donald Trump should not have been on the phone with a foreign head of state encouraging another country to investigate his political opponent, Joe Biden. Some Republicans are trying, but there’s no way to spin this as a good idea."
Arch-liberal Tucker Carlson
"When the only American citizen President Trump singles out for China’s investigation is his political opponent in the midst of the Democratic nomination process, it strains credulity to suggest that it is anything other than politically motivated....By all appearances, the President’s brazen and unprecedented appeal to China and to Ukraine to investigate Joe Biden is wrong and appalling."
Nothing strains credulity for Bircher Bart ('I guarantee Romney will win!', 'WMDs will be found!,' Persons means one thing in the first part of the 14th Amendment, then something else in the second!', etc). Perpetual conspiracy dupe.
“I could stand in the middle of Fifth Avenue and shoot somebody and wouldn't lose any voters, okay?” (Bart, in line looking over crime scene tape, clutching absentee ballot).
Good example of Rudy Giuliani providing public testimony concerning his own actions and observations.
The transcript Trump provided is documentary evidence concerning what the transcriber heard the principles state during a telephone call.
This is all substantive evidence.
The problem for the Democrats is the substantive evidence does not prove a crime (high or otherwise). Thus, the star chamber where the prosecutors (the Democrat leaders) and the Democrat media offer complete lies based on anonymous double and triple hearsay.
As an aside, we now know Giuliani made this perfectly legal and proper request and Ukraine restarted the criminal investigation into the Bidens pay to play operation LONG before the Trump call took place. The Democrat leadership and media claims of bribery and extortion against Trump were lies.
A propagandist must just keep repeating the 'big lie' as loudly and much as possible when confronted with the facts, and Bircher Bart doesn't disappoint. The transcript, POTUS statements and subsequent texts prove the 'hearsay' evidence (even if that was relevant in this context). Bircher Bart is lined up on Fifth Avenue willing to overlook anything and everything.
"Giuliani made this perfectly legal and proper request"
Giuliani is, of course, not a US government official. He is, instead, the President's personal lawyer. His job, his fiduciary duty indeed, is to advocate for his personal client's interests. He's no 'corruption crusader' for the US, he's looking out for his client, asking a foreign government to dig up dirt on his personal client's chief political opponent.
Bircher Bart is on Fifth Avenue, cheering on....
Mr. W: "Hearsay," lol https://www.nytimes.com/interactive/2019/10/04/us/politics/ukraine-text-messages-volker.html
You apparently have no idea hearsay is an out of court statement.
Yes, everything your Democrats provided to the Democrat media and the NY Times article is reporting is indeed hearsay. Instead of the anonymous hearsay in which the Democrat media usually traffics, the Times actually identifies the parties making the statements.
FWIW, your hearsay suggests that Trump went into the telephone call intending the ask the Ukrainian president to investigate the Democrat operation in Ukraine to attack candidate Trump and/or the Biden pay to play operation in Ukraine. It's good to know the POTUS knows what he is going to say before he gets on the phone with foreign leaders.
Bircher Bart throws so much feces it might seem like we should let some of it go. But that's his strategy as a dishonest propagandist.
So let's take this idea of his 'Democrat media.' It's laughable. The 'Democrat media' for Bircher Bart is any outlet that doesn't validate totally his nutty conspiracy minded ideas (which have proven laughably wrong many times here).
"You apparently have no idea hearsay is an out of court statement."
So caught up in the GOP directed talking points on Fox and talk radio poor Bircher Bart misses this: hearsay is fine if it is later confirmed by direct sources (which I've documented) and impeachment is a political act, not a judicial one.
But don't blame Bircher Bart, he has his marching orders and must parrot them, ridiculous as they may be.
I imagine that whether Trump gets up for his own defense in the Senate (assuming, as seems ever more likely, that the issue gets that far), depends on the defense strategy. Will it be the same as his current strategy, which basically consists of defiant denial (rather like his defender here, BDP)? That seems unlikely, but we cannot rule it out. If the "fix is in", as is being implied by McConnell, then he might very well run with that.
If, on the other hand, the evidence continues damning (which appears certain at this point), then we can assume that Trump will either allow, or be convinced to allow, a professional certainty-smothering legal expert, so as to give the Republican majority in the Senate the opportunity to pretend that Trump did not, in fact, suborn a foreign government in support of his electoral hopes.
Defiant denial seems a reasonable defense against defiant assertion. The evidence is only "damning" if you start from the premise that Trump is guilty, and interpret everything said in that light.
Unfortunately for the Democrats, the next step after defiant denial is demonstrating that there actually is some pretty filthy dirt there. Which isn't exactly going to be difficult, given Hunter's amazingly profitable dealings with China.
Brett's closing paragraph at 6:28 AM signals that he has little legal training and is in lockstep with the leader he has swallowed hook, line and sinker. Even though Comrade Brett lacks legal training, why doesn't he even attempt to provide evidence of his claimed "Hunter's amazingly profitable dealings with China." Or is Comrade Brett anticipating that China will at some point produce such evidence? Keep in mind that XI's relationship with Trump differs from Trump's relationship with Putin. Or will Trump's feasting on Turkey in Syria against our former allies the Kurds produce such evidence? What a maroon.
Bircher Brett displays exactly the two sides of the same coin I pointed out: the transcript, texts, pronouncements, nothing to see here! but that Biden's business dealings, worth a closer, closer look!
Seeing what's not there, not seeing what is, two sides of the same Bircher coin.
Mista Wiskas, I'm not sure what you're expecting me to see. I've read the transcript. I can see how you could interpret it as pressure to provide political dirt on a rival under threat. I can also see that interpreting it that way requires that you apply a presumption of guilt, since there was no explicit threat, and other motives are available for wanting Hunter's activities investigated.
I mean, Trump literally ran on going after the prior administration's corruption, you expect Republicans to object to him actually doing that?
I've seen this over and over during Trump's time in office: Something happens that COULD be interpreted as corrupt, and naturally people who don't like him assume it is corrupt, but what's annoying is that they seem to think theirs is the only possible interpretation of events.
Trump's foes employ a presumption of guilt, and seem outraged and baffled that other people don't share that presumption.
This is not unlike Republicans' bafflement at Democrats looking at Biden threatening Ukraine with the loss of a billion dollars in loan guarantees if they didn't fire the prosecutor investigating his son's employer, and seeing nothing shady.
You really need to get used to the idea that if your case against Trump relies on implications and assumptions, it's not going to persuade many Trump supporters.
Mr W.: Yes, heaven forfend that some relation of a highly-placed politician should trade on their access to obtain monetary advantage or an office in the WH, hobnob with foreign potentates, or something. If it were illegal to trade on one's family connections or family name, why, we'd have to invade Canada (again) just to have the room to build prisons to hold the guilty...
It's a curious thing. So many of the Trump supporters I've had contact with appear to be afflicted with a mentality that works like a ratchet wrench, which only grips in one direction, but slips blithely along over the edges in the other.
You are applying a false legal equivalence.
The proper measure for investigating and prosecuting crimes (high or otherwise) is evidence proving a violation of law.
An executive with law enforcement power may and should investigate where there is evidence raising a reasonable suspicion of a crime.
Such an executive abuses her law enforcement power by investigating a person with no evidence of a crime. This is the equivalent of spying or "digging up dirt" on the investigation target.
Now, let's apply this rule to the relevant government acts concerning Trump.
As the chief law enforcement officer of the United States, Trump may and arguably should ask foreign law enforcement officials to investigate Americans in their jurisdiction where there is evidence raising a reasonable suspicion the Americans committed a crime. No one, not even the Bidens, deny the basic facts in Ukraine: Obama makes foreign relations and foreign aid in Ukraine part of Joe Biden's portfolio. Burisma places the unqualified Hunter Biden on its board and pays him around a million dollars a year for doing no known work. When a Ukrainian prosecutor investigates Burisma and its Russian oligarch owner, Biden brags he threatened to withhold foreign aid to get Ukraine to fire the prosecutor. This is prima facie evidence of felony bribery. Thus, Trump was well within his powers to request Ukraine investigate this apparent crime within its jurisdiction.
The argument a POTUS cannot exercise his law enforcement power to investigate evidence of a crime committed by a political opponent is ridiculous on its face. Under this reasoning, crimes committed by the political class would never be investigated because a party would never investigate itself and the opposing party is prohibited from doing so.
In contrast, a law enforcement or intelligence agency performing an investigation against a political opponent of the government with no evidence the target is committing a crime can reasonably be said to be spying or "digging up dirt" on the target. The Obama administration and then the Special Prosecutor reportedly did just that against candidate and then POTUS Trump.
Distinguishing between the two is not a matter of subjective partisan perspective, but rather objective application of evidence and law.
Sure Brett, Trumo just decided to play anti-corruption Batman and he just so happened to go after...the guy who is currently running against him and beating him in polls. Sure, nothing fishy there, one would certainly have to be operating on a presumption of guilt to think that smells like a mackerel in the moonlight.
Throw in the texts and his *personal lawyer's* own admissions and it's even worse.
Bircher Bart is ridiculous. Federal law enforcement was correct to investigate the Trump campaign as it was rife with corrupt foreign agents, indeed the subsequent convictions showed this. On the other hand Trump using the power of his office to single out his leading political opponent is a blatant political hit and abuse of office.
Sure, Obama's administration just happened to open up an intelligence investigation of the opposing party's Presidential candidate. Nothing fishy there, you'd have to be operating on a presumption of guilty to think that smells like a mackerel in the moonlight.
Is it so offensive to ask for just one standard, instead of two?
It is offensive when the second "standard" is whatever Comrade Brett feels supports the leader Comrade Brett has swallowed hook, line and sinker.
Comrade Brett has not presented his claimed evidence of "Hunter amazingly profitable dealings with China."
The Obama spy operation against Trump never possessed any substantive evidence Trump or a member of his campaign was operating as a "foreign agent" against the United States.
What the FBI presented to the FISA court in order to spy on Carter Page consisted of disinformation from "Russian intelligence sources" paid for by the Clinton campaign known as the Russia dossier and a rumor Russia possessed Clinton emails which an American or foreign intelligence operative provided to Carter Page which he allegedly repeated to the Australian ambassador. Reportedly, the Intelligence IG report will shortly blow up these misrepresentations.
The Mueller indictments merely alleged two Friends of Donald failed to register as perfectly legal foreign lobbyists in side businesses which had nothing at all to do with Trump or his campaign.
You may now stop lying.
"Obama's administration just happened to open up an intelligence investigation of the opposing party's Presidential candidate."Post a Comment
This is not accurate. The investigation was opened at a time when Page was not working for Trump or the campaign.