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    Capitol Hill Blunders Again


    For the few Americans who watched President Trump’s impeachment trial in the Senate, they witnessed yet another blunder, this time not only by the Democrats, but also by the Republicans.

    However, before I get to the Republican blunder, let’s look at the many blunders by the House of Representatives.

    No one can honestly argue that the House did a good job during its impeachment hearings that led to the Articles of Impeachment. They rushed out Articles so lacking in Constitutional legitimacy to be laughable if they were not such a serious attack on what the Founding Fathers and framers of the Constitution believed were proper grounds to remove a sitting president. The actual Articles, as pointed out by Prof. Alan Dershowitz, himself a Democrat who voted for Hilary Clinton, simply do not meet the Constitutional standard. At least that is his opinion.

    Don’t get me wrong. The Articles of Impeachment cited serious transgressions. The facts alleged, if true, most certainly warranted hearings. And if the House had taken the time to call more witnesses and allow for more discovery, even if it meant going to court to enforce subpoenas, they might well have discovered what could constitute “Treason, Bribery, or other high Crimes and Misdemeanors” (as the Constitution requires to impeach and remove a president).

    The first article alleges President Trump abused his power by soliciting “the interference of a foreign government, Ukraine, in the 2020 United States Presidential election.” The second article charges President Trump with obstruction of Congress by instituting an “unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House of Representatives …”.

    Let’s look at them in reverse order.

    We can dismiss the second article out of hand.  “Unprecedented, categorical, and indiscriminate defiance”?  Really?  I seriously doubt that there is anything unprecedented, categorical, or indiscriminate in Washington politics. Worse, the House clearly had a remedy assuming any legitimacy to the allegation. They should have gone to court to enforce their subpoenas. That is the accepted and proper remedy for defiance of service of process. Indeed, Congress has gone to court many times to enforce subpoenas. Think about it – if they had done so here and if a witness or President Trump then defied a court order to appear or produce, there would be no question such behavior would be a legitimate basis for impeachment if perpetrated by the President. Instead, the House chose not to exhaust its proper remedies and instead decided (on a purely partisan basis) that it did not have to go to court to resolve the issue. No serious Constitutional scholar can defend the House’s second Article when it failed to follow the judicial process underpinning the doctrine of separation of power between the Legislative and Executive branches of government. Therefore, the second article fails on its face.

    The first article, however, would have been more interesting if the House fully investigated it. With proper witnesses and discovery of documents, the House might well have been able to deliver evidence to the Senate that would have turned some Republican Senators to their side. The House chose not to do so. What they did instead was produce testimony and documents filled with opinions, hearsay, and evidence woefully inadequate to warrant a conviction. Nor in their hearings did the House allow President Trump to call his own witnesses or to cross-examine those who did testify. While it is the right of the House majority to make such procedural decisions, in hindsight, I think we all have to agree that its failure to be deliberative and more diligent severely undermined the legitimacy of the first Article of Impeachment. They should have – and could have – done a better job.

    They did not.  And to sit on the Articles for weeks before sending them to the Senate made them look all the more foolish. Put simply, they blundered.

    When the House did finally deliver the Articles to the Senate, the first thing the House Managers wanted was more witnesses, including some who they could have called at the House hearings but chose not to. Moreover, they wanted more documents that they failed to subpoena during their hearings. Both requests were tantamount to an admission that the House failed to finish its job before asking the Senate to try the President. Worse, it made their claim that they had a “rock-solid” case all the more fallacious. Another blunder.

    Senator McConnell and nearly every Republican Senator who could find a microphone or television camera jumped on the bandwagon of “no more witnesses”.  Senator Schumer and his cohorts likewise jumped on the bandwagon that more witnesses were necessary to find the truth, essentially admitting that the House case was weak. Never mind that Senator Schumer decried the idea of more witnesses when he sat in President Clinton’s impeachment. No one should assume that politicians – on either side of the aisle – are consistent in their views. What they believe is always dependent upon partisan winds. One day they say something is mandated to reach a decision and the next day they claim the very same thing is unnecessary.  t is no wonder so few Americans trust politicians.

    Now the Republicans have blundered.

    Witnesses could have been called at the Senate trial. But it is also clear that the decision to call additional witnesses or demand more documents rests solely with the Senate and if a majority should decide more witnesses and documents are not necessary, that decision is final. It is no different than the House’s decision to not allow President Trump to call or cross-examine witnesses in the House hearings.

    By a vote of 51 to 49, the Senate defeated a motion to call more witnesses. The issue was resolved. Had it gone the other way, many believe the trial would have continued for months. That was something no Democrat Senator trying to win his or her party’s nomination for President wanted.

    In the midst of all the political wrangling, House Manager Adam Schiff reportedly made a bold proposal. Some say out of desperation. Others say it was a strategic move. Schiff said, “I will make an offer to opposing counsel, who have said that this will stretch on indefinitely if you decide to have a single witness. Let’s cap the depositions to one week.”

    Whether Schiff formally made the offer or not, the Republicans never took him up on it. That was their blunder.

    Certainly, one more week would not have changed the inevitable outcome of acquittal. Thanks to leaks at the New York Times and letters from lawyers for likely witnesses, it is clear what the new Democrat witnesses were going to say.  And if the Republicans called witnesses like Vice President Biden, any first-year law student could handle the questioning. Nothing new would be learned.

    Here is the blunder.  Had the Republicans taken Schiff up on his offer, the House and Senate Democrats would no longer be able to claim there was no fair trial.  Had the Republicans given Schiff another week, Democrats would no longer have a credible claim that the Senate was guilty of a cover-up or overseeing a sham trial.  While some Democrats might continue to campaign on such accusations, they would carry no weight. Moreover, by calling a few more witnesses over an additional week, the country might have been spared what will undoubtedly be new hearings in the House in yet another partisan spectacle to smear the President and his associates. Likewise, if the Republicans called the Bidens, it might have spared likely hearings in the Senate in its own partisan effort to smear the Bidens and others.

    Perhaps Republican Senator Lisa Murkowski said it best, “Given the partisan nature of this impeachment from the very beginning and throughout, I have come to the conclusion that there will be no fair trial in the Senate. I don’t believe the continuation of this process will change anything. It is sad for me to admit that, as an institution, the Congress has failed.

    “It has also become clear some of my colleagues intend to further politicize this process, and drag the Supreme Court into the fray, while attacking the Chief Justice. I will not stand for nor support that effort. We have already degraded our institution for partisan political benefit, and I will not enable those who wish to pull down another.

    “We are sadly at a low point of division in this country.”

    Senator Murkowski is right. There was no fair trial in the Senate because there was no fair hearing in the House. This was all a partisan, political charade to help Democrats beat President Trump in 2020. Now, who is interfering with an election?  I doubt any Democrat or other Republican will show the same courage and conviction of Senator Murkowski to tell the American people the truth. The impeachment process was entirely about partisan politics and not Constitutional principles.

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    The Senate as Impartial Jurors

    “I solemnly swear that in all things appertaining to the trial of Donald John Trump, now pending, I will do impartial justice according to the Constitution and laws, so help me God.” 

    When the impeachment trial of President Trump begins in January, it will be only the third time in our history that an impeached president has faced trial. The Senate tried and acquitted both Andrew Johnson and William Clinton. Richard Nixon resigned before the House of Representatives voted to impeach him. If the Senate convicts President Trump, it will be the first removal from office of a sitting president since our Constitution’s ratification in 1788. Given the historical gravity of such a decision, one would want our elected officials, both in the House and in the Senate, to make their decision not on partisan politics but on an impartial evaluation of the facts.

    We all know that did not happen in the House and is not going to happen in the Senate. President Trump will be acquitted by a vote along party lines and face reelection in November. Even if some party members vote against their leadership, those who wish to oust the president will never get the 67 votes they need. This piece of your history will pass quickly for this president but sets a frightening precedent for all future presidents facing a Congress controlled by an opposing party. Impeachment will become a political tool rather than the somber remedy the Constitution provides for “Treason, Bribery, or other high Crimes and Misdemeanors.”

    The pundits on both sides of the political spectrum have debated all of this ad nauseam. Those observations are not new. There is one point, however, that has received far less attention than it deserves.

    If charged with a crime, you are entitled to a trial by an impartial jury of your peers. That is a right in our Constitution. If a juror is prejudice or partial, he or she cannot sit on a jury. It is a fundamental right we all enjoy, ensuring a fair trial.

    In an impeachment trial of a sitting president, the Chief Justice of the United States sits as the judge. The House of Representatives appoints a team to act in the role of prosecutor and present their case. The President, as the defendant, is entitled to have his team at the trial defend his rights. The Senate – all 100 members – sit as the jurors and vow to undertake their duties as jurors pursuant to a solemn oath to, “do impartial justice according to the Constitution and laws, so help me God.” 

    In the Federalist Papers, Founding Father Alexander Hamilton understood the meaning of the impeachment power in the House and trial in the Senate. In addressing the role of the House of Representatives, Hamilton wrote:

    The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

    That is precisely what we witnessed in the House.

    Hamilton had some thoughts on the Senate’s role as well. He wrote:

    Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the People, his accusers? 

    A Senator must approach the trial without a predetermined vote to convict or acquit. If they are unable to be impartial until presentation of all the evidence, they are not qualified to sit as a juror.

    You would think members of the Senate, many of whom are lawyers, would understand that obligation and abide by their duty. Think again.

    Senators on both sides of the aisle have been unable to remain silent and instead have turned the circus we witnessed in the House into an equally repulsive display of partisan politics in the Senate. We are used to it in almost everything they do today from immigration, to budgeting, to infrastructure, to medical care and more. With few exceptions, it seems the Democrats and Republicans cannot agree on anything regardless of the relative merits either side presents. That is politics as usual and it has been that way since partisan debate began. No surprise.

    This is different. Each Senator will take a special oath — an oath that many cannot now honestly give. Far too many, yearning for a camera, are guilty of political pandering. They are not impartial. They have made their decision before the trial begins. Under traditional rules, they cannot sit on the jury.

    Sadly, such hypocrisy will not stop any of them. They will all sit as jurors and make the most profound decision a U.S. Senator can make in flagrant violation of the oath they gave. 

    Regardless of how you feel about the president, the behavior of many Senators is shameful and adds to the reasons so many Americans rightly question the integrity of our elected officials.