Friday, November 08, 2019
Fact Witnesses in the Impeachment Trial
Gerard N. Magliocca
Some of the witnesses that House investigators want to hear from are not testifying because the President is telling them to stay quiet. Before the House votes on articles of impeachment, the courts may rule on whether the President can do this, but who knows. When the Senate trial begins, though, the calculus shifts in favor of testimony.
Since time ran out, just to toss it out again, not enough states ratified the 27th Amendment to make it to 38 w/o counting ancient ratifications. More ratified afterwards, but such symbolic ratifications are likely to occur with the ERA too.
In the Senate, though, he cannot make that claim.
Sure he can. His argument would be weaker, but it's weak now. People make weak claims of due process all the time. So, this is really an argument on strength.
Just Security blog cited precedent from the 1790s against use of executive privilege (a vague open to abuse concept generally) during the impeachment process. This to me is a good argument generally speaking. At the very least, to the lengths he is taking it where there is a blanket cut-off of a range of lesser officials.
The "fishing investigation" thing depends on someone deciding what that means. The usual rule there is a judge (or panel of them) decide. There is no blanket allowance because prosecutors are a different party or something. (This very well might come up with elected attorney generals and district attorneys who can investigate political opponents.) Here there are political checks.
Anyway, yes, the argument gets weaker in the Senate for basically the reasons provided. As to how long it is, it really depends on how many witnesses is deemed necessary. The case can largely be made based on other evidence and witnesses that already would have been questioned. Plus, if there is some assumption he probably won't be convicted, dotting every "i" and crossing every "t" becomes somewhat less necessary.
The theory of executive privilege is tailor-made for this latest iteration of the three year Democrat spy operation turned special prosecutor and House fishing expeditions against Trump.
Executive privilege is primarily enforced against Congress and extends to communications between the POTUS and his advisors, agency deliberations, attorney-client communications and also general subject matter areas of law enforcement investigations, national security and diplomacy.A major exception to executive privilege are communications concerning criminal acts.
The House Democrats are reportedly considering three articles of impeachment:
(1) "Abuse of power" by "pressuring" Ukraine to reopen their own criminal investigation against Burisma and evidence Burisma paid the Bidens bribes and/or to cooperate with the ongoing Justice Department criminal investigation of the Obama spy and dirty tricks operation against the Trump Campaign.
The witnesses to these alleged acts check off every box for executive privilege and the alleged acts are hardly crimes.
(2) "Obstruction of the Democrats, er... Congress" by exercising executive privilege concerning Article I.
The application of executive privilege in the first article effectively dismisses the second article.
(3) "Obstruction of Justice" based on a Mueller report, whose merry band of Democrats found no crime of obstruction of justice.
Really? Maybe the House Democrat prosecutors plan to call Mueller for a repeat performance in dementia before the Senate?
In any case, the House Democrats have not sought to call any witnesses to "prove" the non-crimes of the second and third article.
This nonsense gives new meaning to the term political circus.
"Since time ran out, just to toss it out again, not enough states ratified the 27th Amendment to make it to 38 w/o counting ancient ratifications. More ratified afterwards, but such symbolic ratifications are likely to occur with the ERA too."
Yes, I was aware of that: They didn't *quite* get to 38 modern ratifications before the amendment was declared ratified, but did shortly after, rendering any challenge based on the age of the ratifications moot. It was more a case of somebody jumping the gun, than ratification relying on the old ratifications. I would actually be surprised if this happened with the ERA, but, hey, I am often surprised.
Gerard, I think your argument concerning witnesses in a Senate trial is valid: Trump's current argument against cooperating with the House proceeding would be much weaker in a Senate trial.
Unless the House comes up with some charges we have no wind of now, or some evidence that's really shocking, (I mean genuinely, every time somebody passes wind in D.C. it's reported as shocking evidence of Trump's guilt.) I don't expect the trial to last long, unless the Republicans decide to flip it, and put the Democrats themselves on trial.
I agree with Brett that a Senate trial is likely to be short, though not for the reasons he thinks. There's already evidence BRD that Trump is guilty, and his defenders in the Senate can't permit that showing. They'll try to cut off evidence for partisan reasons and won't allow witnesses to testify against Trump's wishes. I also expect them to try to block introduction of deposition testimony for specious reasons.
Of course, my view on this depends on the Rs maintaining party unity enough to keep at least 51 votes (they need that extra vote because Pence won't preside). That's a political calculus which is hard to make at this point.
A basic concern to me is that you really cannot simply assume the states would have agreed to an amendment anyways in that situation. The amendment was a fait accompli. It's like supporting a law that already passed. Also, you cynically said the Supreme Court allegedly made the ERA itself moot. Under that logic, if the ERA already passed, states easily could use it as a cheap symbolic act. Anyway, moving on.
GM threads tend to result in unusual allies, either in support or opposition, but this issue is going to only allow that so far. Mark's argument has merit.
Mark: I agree with Brett that a Senate trial is likely to be short, though not for the reasons he thinks. There's already evidence BRD that Trump is guilty, and his defenders in the Senate can't permit that showing.
"Evidence" of what?
What witnesses will the Democrats call in the Senate they will not first offer in the House without the check of due process?
Remember, the House Democrats have called a small gaggle of bureaucrats, who freely offered testimony they are disgruntled because Trump ignored, bypassed and fired them and who have otherwise offered hearsay, speculation and opinion concerning the allegations. In a trial where the POTUS's attorneys and the former prosecutor Senators are allowed cross-examination, these witnesses will be filleted on national television.
Thus, any Senate trial is more likely be a short affair because the Democrats will seek to rely on transcripts of House proceedings rather than provide live witnesses for cross examination.
" There's already evidence BRD that Trump is guilty,"
There's evidence things happened that aren't, in and of themselves, particularly problematic. BUT, if start from the assumption that Trump is guilty, and reason from that starting point, you can rationalize that they're evidence of him being guilty of something.
If you don't start from that assumption, it looks like proof of perfectly ordinary Presidential actions.
It's like firing Comey; If you start from the presumption of Trump guilt, he obviously was firing Comey to obstruct the investigation. It didn't obstruct it? Fine, he's incompetent as well as criminal.
If you don't start with that assumption, you see a President firing an insubordinate employee who everybody on both sides of the aisle had thought needed firing until it actually happened.
We've seen this play out over and over and over during this administration, and all that's happened now is that Democrats have worked themselves into a state where they can't resist going ahead with impeachment even though nobody who doesn't share their hatred of Trump sees a case against him.
Brett: We've seen this play out over and over and over during this administration, and all that's happened now is that Democrats have worked themselves into a state where they can't resist going ahead with impeachment even though nobody who doesn't share their hatred of Trump sees a case against him.
Pelosi is generally a shrewd political operator and is not likely to get "worked up" into doing something which makes no sense.
The impeachment attack makes no constitutional sense because the Democrats are offering no high crimes or misdemeanors.
The attack makes no political sense because the Trump haters are concentrated in districts and states which the party already controls and far too many of the Trump lovers are in swing districts and states both sides need. Pelosi knows this.
I increasingly suspect than an impeachment attack with the theme of a GOP Potus investigating Democrat criminals is an "abuse of power" to "influence the political process" is meant to preempt criminal prosecutions of the perps in the Obama administration spy and dirty tricks operation likely to begin during an election year.
"Pelosi is generally a shrewd political operator and is not likely to get "worked up" into doing something which makes no sense."
While that may be so, if you're riding the tiger, you generally go where the tiger wants to go. Impeachment makes no sense, but if enough Democratic House members want it, Pelosi has to either deliver it, or risk her Speakership.
We have seen from before the election that a range of people, not just Democrats, have decided with all the evidence available that Trump is guilty of various things. Knowing the Republicans controlled the House so it really wouldn't happen, a majority of Democrats thought he committed impeachable offenses early on. Over time, more and more evidence (including his own words), has come out. The Ukraine Extortion Racket Caper (name in workshop) is a tipping point here.
The guy who thinks Trump is better than past occupants of the White House at following the rules, who thinks Trump has a "high school civics" view of the presidency, who supports him in part since he has the right enemies, disagrees with Democrats and others that there is enough evidence. This is unsurprising.
But, this doesn't mean "impeachment makes no sense." Impeachment is a political act so it making sense is largely a political calculus. As to risking her speakership, there is no strong opponent & the ones that had mild support were more conservative members of the caucus. Pelosi is looking toward what her caucus supports and this was a factor in her for months belittling the importance of impeachment until recently.
Republicans in Congress in various cases can look at this without the level of bias of some true believer partisans. They realize concern about Trump, especially after the Ukraine matter, is not merely about "hating" him. To the degree people do "hate" people, however, it often is a matter of them earning it. But, I don't know how much people like Robert Mueller, the Republican Vietnam vet appointed by Bush43 to head the FBI & who released a report that provides multiple grounds of impeachment "hates" Trump. Ditto a load of other people.
It was alleged that Hillary Clinton was a felon in 2016. Some might argue this was a result of people "hating" Hillary Clinton. If she actually was elected, she very well eventually might have been impeached. We would get talk (we got it in the 1990s) of people "hating" here and that the evidence was weak. So, shrug.
"We have seen from before the election that a range of people, not just Democrats, have decided with all the evidence available that Trump is guilty of various things."
Impeach Trump? Most Democrats already say ‘yes.’ Feb. 24, 2017 at 10:25 a.m. EST
That's right, one month after he was sworn in.
"Donald Trump has been president for about a month. And already, a sizable majority of Democrats say he should be impeached.
A new poll from the Public Religion Research Institute shows 58 percent of Democrats are onboard with the idea of impeaching Trump."
Another poll (Which I've linked to here.) showed more than half of those Democrats didn't even care if no impeachable offense could be identified.
All that's happened is that you've lowered your threshold for what constitutes an adequate excuse to match the evidence you can find.
Both Spam and Brett are wearing their legal clown suits, as they continue to suck up to their leader.
Brett, you may think it's somehow significant that those of us who thought Trump was impeachable (via the emoluments clause, if nothing else, but frankly it's been obvious for decades that Trump has skated on the thin edge of fraud -- and given the complexity of finance and tax law, any decent prosecutor could make a case sufficient for indictment, if not conviction, with a little work.)
So pointing out that Democrats were largely correct from the beginning somehow fails to make a point.
You may assert that the threshold has been lowered -- but the facts of the case are that Trump has merely been caught, at last. That's what happens to career criminals.
A trial will be as long, or as short, as Mitch McConnell wants it to be.
Seriously, I know Joe tires of me saying this is a political process, but it just is. The Republicans in charge of the Senate will set some rules on witnesses, including whether executive privilege can be invoked, and those will be the rules.
And it won't have anything to do with the law, because in politics, power is more important than the law. If the Democrats were in control of the Senate, the rules and procedures for a trial would be completely different.
Since time ran out, just to toss it out again, not enough states ratified the 27th Amendment to make it to 38 w/o counting ancient ratifications. More ratified afterwards, but such symbolic ratifications are likely to occur with the ERA too.
There's nothing "symbolic" about those ratifications. If a hypothetical 28th Amendment is ratified by 38 states, but one of the ratifications is contested (let's say there's a dispute as to a quorum in a state legislature or something), and later on, a 39th state ratifies, that isn't symbolic. It cures the defect.
There is very little I can say definitively about the amendment process, but one thing I can say is that there is no rule that says that if some states' ratifications are illegitimate at the time you get to 3/4 of the states, it can't be cured by additional ratifications.
I can't imagine any reason any person who is trained in the law would make such an argument, other than just pure dislike on policy grounds for the 27th Amendment.
It's worth noting that executive privilege originated as a privilege against Congress. That's what George Washington did.
I tend to think that Separation of Powers basically bars Congress from any sort of enforcement against the President if there's a claim of executive privilege, with improperly claiming executive privilege being a potentially impeachable offense.
In other words, the way to handle a BS claim of executive privilege is for 2/3 of the Senators to say "if you don't drop your claim, we will vote to convict right now". In such an instance, the President would of course drop the claim.
And again, processes like that are so much better than legal arguments where everyone claims the law supports whatever their politics are.
I agree with Brett that a Senate trial is likely to be short, though not for the reasons he thinks. There's already evidence BRD that Trump is guilty
The word "guilty" has nothing to do with these proceedings. An "innocent" President may be convicted and removed, and a "guilty" one may be acquitted, with no judicial review in either instance.
"I can't imagine any reason any person who is trained in the law would make such an argument, other than just pure dislike on policy grounds for the 27th Amendment."
It isn't actually about the 27th amendment at all.
The goal here is to make pushing the zombie ERA over the finish line 40 years after it died look reasonable. That's all.
First you claim that the early ratifications for the 27th amendment had expired, despite neither the amendment nor the ratification votes saying anything of the sort. This established, that Congress counted them anyway is supposed to establish that Congress can count genuinely expired or rescinded ratifications of the ERA if they want.
Then you treat Congress declaring it ratified as some kind of deadline, and the ratifications after this "deadline" go to making Virginia ratifying it now count.
Yes, none of it makes any real sense, but you do tend to fall into irrational thinking when you're trying to revive the dead, be they people or amendments.
Incidentally, Nadler has just announced that, should Democrats take over next year, they'll repeal the deadline on the ERA. And count rescinded ratifictions, too, of course.
But putting this in context, that's probably the least obnoxious mischief they plan on getting into in that event.
Dilan: The word "guilty" has nothing to do with these proceedings. An "innocent" President may be convicted and removed, and a "guilty" one may be acquitted, with no judicial review in either instance.
Spot on take of how Democrats view the Constitution and the law in general.
With apologies to Mel Brooks...
Hedley Schiff: "Be ready to attack Donald Trump at noon tomorrow. Here is your badge."
Whistleblower: "Badges? We don't need no stinking badges!" Laughing on his way to meet with CNN.
Bart, I think the law matters in legal proceedings.
The entire reason why the framers left impeachment to the Congress was to protect the Congress' power to act extra-legally for political reasons.
Dilan: The entire reason why the framers left impeachment to the Congress was to protect the Congress' power to act extra-legally for political reasons.
Are you really arguing the reason why the framers expressly placed a very high legal threshold for Congress to impeach and convict a POTUS ("Treason, Bribery, or other high Crimes and Misdemeanors") was to protect "Congress' power to act extra-legally for political reasons?"
Are you also surprised such assaults on the rule of law for political power have plunged us into a cold civil war which is increasingly turning hot on our streets?
I am arguing that you can't look solely at the "treason bribery and other high crimes and misdemeanors" language while ignoring the choice to put it in control of Congress.
The framers weren't stupid. They knew that judges are judges and politicians are politicians. Nobody in their right mind will put a decision as to remove a politician from office in the hands of other politicians, who are certainly going to be interested parties, and then expect an application of neutral principles and careful legal and factual analysis. That's just not what you are going to get from the Senate.
So any argument that says "no, the Senate is actually expected to scrupulously follow the law in any impeachment trial" has to assume that in fact the framers were idiots.
As for your last point, I have been out on the streets lately, and I haven't seen any political violence. (In contrast, I was recently in Hong Kong and talked to a number of protesters. Believe me, actual political violence looks quite a bit different.) We aren't in a "cold civil war". Most people don't even pay attention to the charges and counter-charges of the impeachment battle.
(I say this same thing to liberals also. Donald Trump isn't a fascist. Period.)
Our political system is not in any sort of crisis. It's working basically as designed. And there's going to be an election in 2020 and the public will either vote Trump a second term or they won't, and life will go on.
A related point to what I said at the end of that comment. I think political junkies, though they won't admit this, would like to believe that they are actors in some grand historical drama. We see a lot of this.
For instance, some of the architects of the Iraq War spoke openly about how the "global war on terror" was World War III, and how they were the equivalent of Winston Churchill standing up and warning about the new Nazis.
And I get a similar vibe from various liberal commentators talking about Trump and listing characteristics that he supposedly has in common with previous fascist leaders. It's like they want him to be a fascist, because then their battles against him will have grand historical significance. (As opposed to if he's just a normal conservative leader that liberals don't like, and the battles against him are just the normal role of a political opposition.)
And I also get that vibe from Bart's comment about violence in the streets. Go back to the 1960's. There really was violence in the streets. Or go back to the 1970's. You know how many bombs were planted during the 1970's?
Modern life is nothing like that. Heck, the left can't even sustain its energy to protest Trump. The left actually mobilized more consistent protests against the Iraq War and Bush than it does Trump, and that wasn't that long ago.
We are simply not living through world-historic times. We aren't. Trump's going to be gone in either 2021 or 2025 and the American political system will continue muddling along and swinging back and forth between Republicans and Democrats just like it has for decades. Nobody's protesting, few people are engaging in political violence, and really few people are engaged with the political system at all. We care about this because this is our hobby, and we think it important. Lots of people don't.
Once that happens, states will deem it fait accompli and for appearances ratify.
I disagree that this is "for appearances". One good reason to keep ratifying is to make sure that if someone later challenges that there is a defect in the process, it is cured.
And indeed, since there was at least some tut-tutting by legal scholars about the 27th Amendment, that was a good enough reason to keep ratifying. And those ratifications are real and should count if any earlier ones are rejected.
Dilan: I am arguing that you can't look solely at the "treason bribery and other high crimes and misdemeanors" language while ignoring the choice to put it in control of Congress.
Why? Congress critters swear the same oath I did as a soldier and then a lawyer that we "will support and defend the Constitution of the United States against all enemies, foreign and domestic; that [we] will bear true faith and allegiance to the same." There is no exception to that oath for base pursuits of political power.
The framers weren't stupid. They knew that judges are judges and politicians are politicians.
Actually, the founding generation of politicians regularly consulted the Constitution to determine what Congress could and could not do. Your point of view is skewed by living under an increasingly totalitarian government where all three branches and an unconstitutional absolute bureaucracy progressively erases and rewrites our basic law to create an unlimited government.
As for your last point, I have been out on the streets lately, and I haven't seen any political violence. (In contrast, I was recently in Hong Kong and talked to a number of protesters. Believe me, actual political violence looks quite a bit different.)
No, the violence looks very similar.
Go to conservative events increasingly besieged with often armed and masked gangs shouting down and assaulting the speakers and the audience members. Since Trump came into office, leftist political violence has increased from a handful of incidents a year to hundreds. The so called alt right are organizing their own gangs to do battle.
Given you likely do not go conservative events and the Democrat media covers none of this violence (unless they can use it as a vehicle to slander Republicans as Nazis and Klan), I am not surprised by your ignorance.
We aren't in a "cold civil war"...Our political system is not in any sort of crisis. It's working basically as designed.
Our current political system is working nothing like it was designed, our people are fundamentally divided over how the government should work and faith in our government has cratered down to revolutionary levels. Well respected professionals like Sandy Levinson are openly and quite seriously discussing secession.
Relative prosperity is holding the country together. However, the last progressive depression royally screwed the Millennials, who are on course to be the first generation to be worse off than their parents. In about fifteen to twenty years (sooner if the Democratic socialists impose their policies), the Millennials and their kids will be left holding the bag when the government reaches sovereign insolvency. Then we will see what still binds us together.
"The framers weren't stupid. They knew that judges are judges and politicians are politicians."
The framers literally thought that there wouldn't be political parties. I suggest to you that they were, in fact, rather stupid on some topics.
Not stupid. The Founders simply could not foresee the future.
The Founders were breaking new ground and only had England and the ancient Greek and Roman republics as templates, none of which were the free republic they were attempting to create.
The House GOP plans to call the Democrats' bluff.
Their hearing witness list includes the Bidens, the perps in the Obama administration spy and dirty tricks operation in Ukraine, and the "whistleblower" and his sources.
Schiff cannot have the narrative changed to the Bidens pay to play operation and the Democrat's three year effort to prevent the election of and then remove Trump as POTUS and will certainly pull back the fig leaf of due process the resolution provided the minority party.
The framers knew about politicians and political parties.
Their stupidity- and it was really one person, Madison, who was an imbecile about this- was thinking the system they designed would discourage factions from forming.
Dilan: The framers knew about politicians and political parties.
At the time of the founding, the Brits had not yet developed formal political parties. Rather, the Whigs and Tories were groups with shared ideological and economic interests. Colonial legislatures followed this pattern.
That's a No True Scotsman fallacy, Bart. The Tories and Whigs functioned as political parties all the way back in the 17th Century.
And ancient democracies had factions. The framers knew about this, expressed concern about it in their writings, and then created a system that foreordained two parties.
Madison's view was that faction was inherent in human society and inevitable in any country, but that it would be less probable for a faction to gain control if that faction had to contend against other interests and gain control over more and varied people.
Each group involved in our constitutional journey had an imperfect knowledge of the world though as outsiders looking in, we might wish to have a bit of humility in examining them. Appeals to original understanding -- and even people who say they don't like originalism tend to regularly appeal to it -- continues to be popular and imperfect. Nothing new under the sun there.
As one lives, one does manage to get a bit philosophical. We can, e.g., look at the Clinton impeachment now with some more perspective. But, imagine people in 2250, looking at us. They might deem us rather uncivilized misguided types in a variety of ways, including our criminal "justice" system, how treat animals and a variety of other things.
Our views on politics will likely seem to some primitive too. Some, perhaps, will somewhat generously look at us from an academic perspective, respecting that we did as good as we did with what we had.
Joe's point is well-taken. The Founders thought they had made improvements in government based upon progress (they were part of the Enlightenment, after all), but they also expected that progress to continue as we learned more. They knew they made mistakes and that compromises marred a better design. Not that they all agreed on just which provisions were mistakes and which were not, nor on which compromises were good and which were bad. I doubt we'll do as well.
Madison, the dumbest of the Framers, actually said repeatedly that his system would prevent factionalism.
Mark won't admit this because he worships Madison.
Mark, the framers had one actual purpose, which was to make sure that any government they created ensured the continued right of aristocrats like them to rape their slaves.
And they did this KNOWING that slavery was wrong-which is why they went to such lengths to never mention slavery while they preserved their privilege to own people and rape them.
I don't owe those asswipes any understanding. They were scum.
More generally, ever wonder why America acts the way it does? Why we subjected blacks to Jim Crow for almost a century? Why we get up a Messiah complex and murder a million people in Vietnam War for the sin of forming a government that wasn't a US puppet? Why our police even now murder black people, and ICE murders Hispanics?
I would argue that it's in part because we can't be mature and admit that the country was founded by bad people and on bad ideals. We have to pretend that the Constitution, which ensured the continued bondage of 4 million people, was a good thing, a brilliant advance over previous forms of government- when in fact many places that had those other forms of government managed to ban slavery long before we did.
Framer worship isn't just bad for the legal system, although it is. It's bad for the entire country. If we could, instead, start from the premise that Madison was a complete idiot, Washington and Jefferson were slaveholding bastards, and the founding of our country was an inglorious event, maybe we wouldn't be so full of ourselves as we continue to oppress Americans as well as people all over the world.
When you think your country was founded by divine providence, all sorts of bad things follow. When you realize your country was founded by scumbuckets and we've had to work our asses off ridding ourselves of all their evil and making our society into a somewhat better country, maybe the country will get better faster.
"Madison, the dumbest of the Framers, actually said repeatedly that his system would prevent factionalism."
Then it should be easy for you to find a quote to that effect.
People will think we are "scum" too but hey we will be dead by then.
Slavery was one part of society in 1787. As much as male supremacy, the Constitution wasn't going to end it. The government that was created was going to factor it in somehow. It's a movie, but "1776" Ben Franklin was correct. They weren't "demigods" and had to make compromises with the evils of the day. A document centered on defending slavery as much as you suggest is more the Confederate version though.
It is ridiculous not to understand the limitations of humanity here and we are far from so advanced to preach too much. Framer hatred is as misguided in its fashion as Framer worship. I don't think we were created by "divine providence" myself. I am not aware of Mark's religious beliefs per se (he is a fan of Buffy the Vampire Slayer) but this talk of "evil" and other religious sounding stuff is not coming from him.
Looks like Dilan is still searching for that elusive Madison quote showing that Madison "said repeatedly that his system would prevent factionalism." Maybe I can help him out. Let's try Federalist 10:Post a Comment
"The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society." Well, not much help there. Madison is saying that faction is intrinsic to human society, not that he can prevent it.
"The inference to which we are brought is, that the causes of faction cannot be removed, and that relief is only to be sought in the means of controlling its effects." Shocking, to be sure, but Madison didn't think he could "prevent" factionalism. Still, maybe he was "certain" that he could control its effects. Let's see:
"The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose." Madison doesn't seem very certain here.
"In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre in men who possess the most attractive merit and the most diffusive and established characters." Nor here.
"The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other."
All we see throughout is that Madison was relying on probability, not certainty. I guess he wasn't as stupid as some think.