Tag Archives: Chief Justice Roberts

Some Notes on the “Trial” of Donald Trump

In their opening arguments, the House Democratic managers (read “prosecutors) summarized the testimonial and documentary evidence gathered during the House investigations. Those investigations were, of course, incomplete because the White House prevented many key witnesses from testifying and refused to produce thousands of pages of documents that were subpoenaed from numerous sources. Meanwhile, many Republican senators have stated that they are not interested in the evidence; they will acquit Trump regardless.

Certain questions naturally arise. I will endeavor to answer them.

Does acquittal by the Senate amount to a finding that Trump is innocent of the charges?

Clearly, no. The opening argument by Trump’s defense counsel suggests their central argument is that the House has failed to satisfy its burden of proof. Trump, they say, “did nothing wrong.”

In a situation where many members of the jury (here, the Senate) have stated that they don’t care what the evidence shows and where the majority party, led/owned by the defendant, has/will vote against allowing additional witnesses with first-hand knowledge and against allowing additional documents bearing on guilt to be introduced, it is an easy step for the majority to then vote to acquit on burden-of-proof grounds. But, in doing so, they will not be finding Trump innocent in any meaningful legal sense. At best/worst, they will be saying that you had to fill the evidence cup past half-full and, thanks to our resistance, you failed.

In this way, the Republican majority can bring this phase of Trump’s “trial” to an end, but they cannot find him “innocent.”

What are the implications of Trump withholding testimony/documents?

Republicans defenders are arguing that the House failed in its burden of proof while the defendant, Trump, prevented relevant evidence from being gathered, knowing that legal challenges to his actions would consume most or all of the remaining months until the election, thereby preventing a verdict.

However, when a party possesses evidence about the claimed falsity of a proposition, call it Prop A, but withholds/conceals that evidence, the general principle applied is that an adverse inference against that party is warranted and that Prop A may be fairly found to be true. There is no reason presented in this case to conclude otherwise. The “jury” should therefore find that the testimony of Bolton, Mulvaney and the others, and the documents whose production was refused, all point to Trump’s guilt.  This is particularly true when the “jury” itself has the power to compel production of the testimony/documents and declines to do so.

What are the implications of Senator Susan Collins sending a “note” to the presiding judge, Chief Justice Roberts, complaining about comments made by one of the House managers?

This question is really interesting. In a real trial, jurors may not individually communicate with the judge about matters of substance in the trial with some narrow exceptions. For example, a juror might request that the clerk or bailiff present the judge with a question about the trial, but this would be a question openly shared with all parties. Jurors cannot have secret or private conversations with the judge about the trial while it is going on. And it is beyond imagining that a judge, having somehow received a private note from a juror, would act on it without full and open disclosure to the parties and their attorneys.

This episode, which led to the Chief Justice reprimanding both parties “equally” (shades of Charlottesville), raises the question whether other Republican senators have been privately communicating with the presiding officer and, if so, what those communications have said. I wonder why Majority Leader Schumer or the leader of the House Managers, Schiff, has not raised this issue.

Is the impeachment process an attempt to subvert the results of the last election or to prevent the subversion of the next one, as the Republicans claim?

Of all the “defenses” raised by Trump’s counsel, this is perhaps the dumbest. Under the U.S. Constitution, it is self-evident that impeachment may lead to removal of the president from office. Removal necessarily would “undo” the result of the last election. This concept is elementary and obvious. It is no more a “defense” than the argument that the president believes he’s immune from accountability and therefore he is. Removal undoes the last election because it was intended to.

As for possible debarment from running again in 2020 after being removed, the Senate practice has been that this question is separate from initial impeachment and further that it may be decided by a simple majority vote. See https://herit.ag/2TTlQZI The Trump defense counsel argument that the Democrats are trying to affect future conduct by the president is thus unfounded except to the extent that, once removed, his ability to conduct foreign policy or other official acts on behalf of the United States would definitely end.

Is it correct that the president can claim “absolute immunity” for his close aides or that “executive privilege” prevents any testimony or documentary production whatsoever from being compelled? 

This “defense” is unjustified by any known authority. Whatever else it may mean, the Supreme Court decision in United States v Nixon, 418 U.S. 683 (1974) laid to rest the argument that a president may refuse to disclose information dealing with his own abuse of power in office. Lawyers will no doubt argue about the scope of that decision, but to find that it allows a president to withheld absolutely and without limit testimony/documents dealing with his abuse of office would effectively render the impeachment power a nullity. It would turn the ability to impeach a president on the ability to discover key evidence without access to the most relevant information. There is, I believe, no support for any concept of absolute immunity.

As for more specific immunity, in the form of “executive privilege,” there is, of course, a basis in American law for permitting the chief executive from being compelled to disclosure certain types of interactions with advisors on certain subjects. This is analogous to the more well-known attorney-client privilege. But you can take it for true that attorney-client privilege does not protect a client or the attorney from discovery of information related to criminal behavior. Thus, if the attorney and client meet and the client asks the attorney for advice on how best to conceal unlawful currency transactions, the exchange in that meeting will not be protected by privilege and the attorney may be compelled to testify about it and may be compelled to disclose notes made in furtherance of the advice on how to break the law.

So too for executive privilege. Absent an extraordinary compelling argument that the national security of the United States would clearly be imperiled by discovery (e.g., demanding that the National Security Advisor state in a deposition everything he knows about the nuclear codes), executive privilege may not be asserted to conceal evidence that the president abused the powers of his office. Moreover, executive privilege, like attorney-client privilege, must be asserted with respect to specific inquiries. It may not be asserted as a blanket excuse from discovery because, among other things, it then becomes in substance a claim of “absolute immunity.”

****

I end by acknowledging I am not an expert on some of the above analyses, but I invite anyone who thinks I am wrong about any of them to demonstrate that by citation of authority and convincing argument other than Republican talking points. I rest my case.