Tag Archives: Schiff

Some Notes on the “Trial” of Donald Trump

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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.”

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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.

 

 

 

 

 

 

 

 

 

 

 

 

 

“Civil Discourse” As a Device to Suppress the Truth in the U.S. Senate

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Well, well, well, what a sad state we have come to. The Chief Justice of the United States Supreme Court, sitting as judge in the Senate proceedings on President Trump’s impeachment, ignored blatant personal attacks by White House counsel in their opening salvos against the lead House manager, Rep. Adam Schiff, reminiscent of the hysterical, inappropriate and repeated comments of Reps. Jordan, Nunes, Meadows and other Republicans during the House’s initial consideration of impeachment. White House counsel in fact lied to the Senate about the House investigative process that led to the impeachment. Schiff, when he had the opportunity to call out those lies, spoke diplomatically, saying he would not call counsel liars but would solely note that they were “mistaken” in their descriptions of the House process.

Later, after a ridiculously long day and night (about 13 hours) of alternating argument on motions to subpoena documents and witnesses, all of which were rejected by party-line vote, Rep. Nadler had a turn at the podium. Nadler was there to argue for a subpoena to issue for the testimony of former National Security Adviser John Bolton. In the course of his argument, Nadler asked of the Senate, “Will you choose to be complicit in the president’s coverup? So far, I’m sad to say I see a lot of senators voting for a coverup, voting to deny witnesses — an absolutely indefensible vote, obviously a treacherous vote.”

As reported by Vox.com,

The president’s counsel has no standing to talk about lying,” Nadler said, pointing out that the counsel lied about Trump not being invited to take part in the impeachment inquiry. He told the Senate he personally had invited Trump — which is true — and that “a few days later, we received a letter from Mr. Cipollone on the White House stationary that said, ‘No, there’s no interest in appearing.’ So on the one hand, they’re lying —”

Nadler cut himself off there, and returned to his effort to rebut the White House’s claims with facts. But he returned to his point when concluding his remarks, saying the president “defies everything. Defies the law to withhold aid from Ukraine. Defies the law in a dozen different directions, all the time. And lies about it, all the time. And sends Mr. Cipollone here to lie about it.”

…. Nadler was correct in asserting the White House counsel was lying to the Senate. As Vox’s Aaron Rupar [see https://bit.ly/2TPOfzI] noted, the defense team’s opening remarks alone contained at least four easily refuted lies. And as the proceedings went on, those lies — particularly the claim that Trump had been barred from participating in the impeachment inquiry — were repeated.

Nadler’s statements were an attempt to push back against these false claims — and given the fact that they were delivered after more than 10 hours of deliberation, they may have been couched in some frustration.

Given that frustration, and the length of the day, working to avoiding fistfights on the Senate floor is admirable. And it is important that the drama of the trial be contained to discussions of presidential wrongdoing, rather than on fights.

But if there is no way for either side to openly challenge when the other side is not presenting arguments based on the facts, there is little point in having the trial at all. The way it will end seems predetermined, and what Trump did with respect to Ukraine is clear, meaning its value lies in hearing the best — fact-based — cases for why the president does or does not deserve removal.” [https://bit.ly/2Gd1wKy]

Nadler, likely fatigued by the length of the proceedings as dictated by the Republican majority, spoke very bluntly and, for him, passionately.

Now, the president’s lawyer rose to object, taking umbrage to what he argued was an affront to the Senate, demanding an apology. Suddenly humble and solemn, Mr. Cipollone acted out his new persona as a wounded warrior, advocating not for himself, of course, but for the Senate, for the great body itself.

Astoundingly, in my opinion, the Chief Justice now took it upon himself to admonish the parties to remember that they were speaking to the “world’s greatest deliberative body.” He claimed to be chastising both sides equally, but it was not equal. Not even close.

White House counsel not only attacked House managers personally, but they lied to the Senate about the House process, a fact noted by commentators on news programs. I am pretty hard to surprise these days, but I shared the astonishment of legal commenters that White House counsel would lie to the Senate about something so well-known and so obvious. But they did it. No one demanded they apologize. No one wept about the smudge of the Senate’s supposedly stellar reputation as the “world’s greatest deliberative body” when counsel for the president openly misrepresented facts.

I hope that the Chief Justice is going to manage these contentious and unprecedented proceedings in a more even-handed manner going forward. I am not suggesting he intervene to critique the parties’ arguments as they are made. The parties should be given leeway to make their respective cases. But if we’re going to maintain the pretense that everyone in this conflict must leave passion at the door, that should apply to both sides in equal measure. The phony umbrage of White House counsel is of a piece with the president’s continuing efforts to suppress evidence and damage the credibility of the House investigation. The fact that they represent the president does not authorize the judge in the case to place his thumb on the scale of justice. The next time White House counsel attack the integrity of the House managers or grossly misrepresent known facts, the Chief Justice must call them out immediately and put a stop to what is, in every manifestation so far, a one-sided and fundamentally unfair proceeding.

ADDED NOTE: While the impeachment trial is underway, the Senate GOP is tweeting false statements about Rep. Schiff and the House Democratic process that led to Trump’s impeachment. Question: are Republicans to be allowed to beat their chests about “civil discourse” while simultaneously lying to the world in another forum?

Profiles in Cowardice

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I have just read the initial Answer of President Donald J. Trump to the array of charges set forth in the House of Representatives Articles of Impeachment. It reads like a school-yard tantrum. It refers to a “brazen and unlawful attempt to overturn the results of the 2016 election and interfere with the 2020 election,” assertions that are interesting if only for their illogical reasoning. I won’t waste time on “brazen” but will note that impeachment by its very nature reverses the electoral result that places any president in office. Surely, the president’s lawyers understand that. What do they really mean? And, it’s a bit ironic, to put the most polite words to it, that they would argue that the impeachment will interfere with the next election, since that is the very offense by Trump for which the impeachment investigation and articles of impeachment were brought. So this opening claim is really just “you’re one too!”

The opening gambit continues with references to the “will of the people,” a matter that Republicans maintain was definitively settled by the 2016 election. Yet, the evidence is clear that, whether or not Trump coordinated on it, the outcome was heavily influenced by a massive Russian disinformation campaign. And there is the small matter of Hillary Clinton having received nearly three million more votes than Trump. While the technical outcome, to borrow a turn of phrase from Alan Dershowitz, of the Electoral College gave the election to Trump, it is more than a stretch to argue that this result reflected the “will of the people.” At best it was the will of the people as distorted by the EC that grants outsized influence to states with smaller populations based on a scheme adopted in 1787 that was a compromise to gain the support of the slave states of the south.

Trump’s lawyers assert that absent a claim of a “crime,” there can be no constitutionally sound impeachment. That argument is simply wrong. Interestingly, Alan Dershowitz who was recently added to Trump’s defense team argued the exact opposite when addressing the question in the Clinton impeachment. https://cnn.it/37gUsJ1 While lawyers are certainly entitled to change their minds in the face of new information, Dershowitz claims that what he said in 1998 is the same as what he says now. That claim is simply preposterous although it is entirely consistent with the continuing positioning of the Republican Party that the truth is whatever they last said it was.

After a lengthy series of changing theories of defense of the president, the defense has at long last come down to the reality that the only “viable” defense is that even if Trump acted as claimed in the articles of impeachment, it doesn’t matter because the president can do whatever he wants. The defense flatly claims that the president did “absolutely nothing wrong.”

We have reached this state because while it permissible to argue defenses in the alternative, in the end the evidence, were it admitted into the Senate record, would establish beyond a reasonable doubt (the standard of proof in criminal cases) that Trump did exactly what was charged in the articles. And the argument that the president of the United States is immune from Congressional oversight, including impeachment, is simply wrong. It flies in the face of the language and historical context of the Constitution’s balance-of-powers scheme.

I am not going to bore you or myself with an excessively detailed dissection of the Trump defense memo. But I will note the remarkable argument that the proof that Trump did nothing wrong is established only by … Trump’s own after-the-fact claims that he did nothing wrong. In effect, the defense is that the president is not guilty because he said so.

The memo also argues that there is no problem here because ultimately the aid to Ukraine was released without Ukraine announcing the investigations Trump wanted. That, I suggest, is an implicit admission that Trump in fact did demand announcements of investigations as a condition for releasing the aid, but eventually caved because his attempt to blackmail Ukraine failed. This is the “no harm, no foul” argument, but it assumes away the central question. The “harm” occurred when the demands were made. Harm does not depend on success of the scheme. The scheme itself was harmful to American foreign policy and security interests and was contrary to American law.

I have also listened all day to the first day of the impeachment proceedings. Several observations are in order. First, the presentations led by Rep. Adam Schiff with participation by Rep. Zoe Lofgren, Rep. Val Demings and Rep. Jason Crow were uniformly brilliant in virtually even way. By contrast, counsel for the president, Jay Sekulow, Pat Cipollone and Patrick Philbin were angry and hostile, attacking Schiff personally and lying to the Senate about the process that had occurred in the House investigation. Schiff, smartly, declined to call them liars and instead said they were simply “mistaken” in their descriptions. I have to say I was surprised at the brazen manner in which these lawyers misrepresented well-known facts in an effort to preserve Trump/Republican talking points.

The Senate process if, of course, blatantly stacked against the Democrats, with the result that all the early motions to have the Senate subpoena documents and witnesses that had been blocked by Trump were defeated by straight party-line votes of 53-47. Nevertheless, the Democrats are making their motions one at a time, with attendant periods of two hours (divided equally between the sides) for argument. I stopped watching when the dinner recess was called at about 7:30. I expect the proceedings to continue deep into the night.

The Democrats, it seems certain, are going to fail to break the Senate Republicans’ unity and thus the outcome of the sham trial appears foreordained. But the evidence, or at least clear outlines of the evidence, are making their way into the record through argument. This process seems certain to further damage Trump’s “credibility,” especially given that most polls indicate a substantial majority of the public prefers that witnesses be called and documents be produced. Neither appears likely to happen.

Tomorrow, as the saying redundantly goes, is another day.

 

Impeachment – Who Should Testify?

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In keeping with their desperate and ill-conceived defense of the indefensible president, Republicans have submitted a list of proposed witnesses they claim should be called to testify in next week’s public hearings on the impeachment of Donald Trump. Not surprisingly, the list includes the heretofore anonymous whistleblower who first revealed the president’s treachery in trying to leverage Ukraine’s president to publicize an investigation of Joe Biden by withholding Congressionally-approved aid. Republicans also want testimony from Biden’s son and random others.

Of particular interest, however, is the omission of most of the administration personnel with actual knowledge of the president’s demands, including, most notably, Rudy Giuliani, Trump’s personal attorney and appointed “fixer” to replace the disgraced and jailed Michael Cohen.

How should Adam Schiff, who chairs the House investigation, respond to these requests?

The issue in the hearings – the only issue – is whether the president of the United States committed impeachable offenses. The witness list, therefore, should consist only of people who can present factual information about that question. The whistleblower is not such a person because his report of the president’s wrongdoing was obtained from others who almost certainly will testify about their firsthand knowledge of what transpired.

I think of the whistleblower as similar to a person who hears others shouting “fire” and calls 911 for the fire department to report what he heard. He can’t say there was actually a fire or any details because he didn’t see it. He heard from others who saw it and he took action to help. Therefore, in the ensuing investigation of the fire, his testimony would at most establish that someone shouted “fire,” but he could not testify about the details of the fire he didn’t see. His testimony would be essentially useless on the origin of the fire, how it spread, who fought it, etc. If he chose to be identified, he might be hailed as a hero but his information about the fire itself would be useless. An imperfect analogy, I suppose, as most analogies are, but sufficient to make the point.

The Republican demands for exposure of the whistleblower are an essential element of the only “defense” Trump has – distraction from the central and only real question: the president’s conduct in connection with aid to Ukraine and the 2020 election interference he sought from a foreign government. The same is true about the demand for Hunter Biden’s testimony. Republicans want to create a sideshow about alleged corruption in the Biden camp which, even if true (and it has not been shown by evidence from any credible source), is not relevant to the president’s attempt to obtain foreign interference in the election. It is the president’s conduct, and no one else’s, that is at issue in the impeachment process.

I well understand that, when push comes to shove, Trump’s defenders will argue it was a legitimate exercise of presidential foreign policy authority to try to ferret out corruption by a person who was Vice President at the time. However, the evidence is clear, and mounting with every passing witness, that the sole purpose of Trump’s Ukraine maneuver was to help him defeat a domestic political opponent in 2020. Absent Biden’s prominent standing among the top challengers in 2020, Trump would have had no interest whatsoever in Biden’s involvement in Ukraine.

The answer to the question posed, then, is straightforward: individuals with direct knowledge of Trump’s conduct should testify. This is the investigative phase of the impeachment process and the sole issue is the president’s conduct. If Republicans want to produce witnesses to testify about Trump’s character, in mitigation of the possible penalty, that testimony will only be relevant in the Senate trial where the issue is conviction (or not) based on the evidence adduced in the House process. It is laughable, of course, that Republicans would introduce character evidence in the Senate, as that would create the opportunity for full exploration of Trump’s personal conduct in a host of areas, including defrauding charities, cheating the military and many others. Such a development would not deter the Republican majority from finding Trump “not guilty” but it would add to the ammunition available to the Democratic nominee in the 2020 campaign. The Senate trial, managed by #MoscowMitch, will be a brief affair with a foregone conclusion.

An overarching question remains as to how broad the House articles of impeachment should be. There are reported indications that Democrats are planning to limit the articles to the Ukraine situation. I am speculating, but must assume the rationale for that is to anticipate and undermine the argument that the impeachment process is just political revenge and an attempt to undo the election of 2016.

That would be a huge mistake. It would allow Trump to escape the findings of the Mueller investigation that Trump committed at least 10 acts of obstruction of justice. Prior posts in this blog covered the details. If the issue is going to be presented of criminal acts by the president, and there is an entire bag full of evidence of at least 10 such crimes in addition to the Ukraine scenario, limiting the charges will be interpreted by Republicans, and possibly the electorate, as proof that the Mueller Report was wrong and that Trump is innocent. The evidence of Trump’s guilt is overwhelming and he has thus far produced nothing substantive and relevant that could defeat that evidence.

Of course, in anticipation of the public hearings next week, Trump has announced he “may” issue a “transcript” of another Ukraine call. When? Why, Tuesday, of course, the day before the hearings begin. Classic Trump deflection and distraction. The first release of the “notes” from the call with President Zelensky were a disaster for Trump as those notes established the very crime he had denied. The second release will be more suspect since Trump is now in more serious trouble than he ever imagined and he likely will use the second call notes to try to repair the damage. I have previously written about the problem of calling these reports “transcripts” and the concerns expressed there are even more serious in the promised second release. CNN, among others, continues to misuse the term “transcript” to describe these notes, the original source of which are locked away in an ultra-secure computer somewhere in the White House.

A final point – the refusal of the Trump administration to produce witnesses subpoenaed by the House committees has led to multiple legal proceedings designed to test the extent to which the Executive Branch can claim, as this administration has, “absolute immunity” from Congressional oversight. Those cases are generally being decided against the administration that will certainly want a final ruling from the Supreme Court before complying. Democrats, wisely, I think, have not taken that bait entirely. Schiff has said repeatedly that the House will simply assume that the evidence that would have been adduced from non-appearing witnesses would be adverse to the president.

Schiff’s position is entirely consistent with the way legal presumptions operate. A party who claims “Proposition A” to be true but refuses to produce evidence of the truth of “A” risks a finding that “A” is not true. Withholding evidence is, in effect, an admission. The House has every right to draw adverse conclusions from the refusal of administration witnesses to testify, especially since those who have done so have uniformly supported the conclusion that Trump did indeed try to leverage Ukraine as charged for the purpose of unlawfully securing foreign interference in the 2020 election.