House to Senate: Articles of Impeachment Are Yours for Fair Trial, Sham, or Coverup

Eyes of America Are on You Sen. McConnell

The moment of truth is now on us - all of us.

Trump trial strategy we see developing quickly (my earlier post) since most if not all GOP Senators – acting as jurors – are all over the media (mostly FOX news) saying no trial is necessary and in effect: “We collectively already believe the suspect/defendant, Donald J. Trump is innocent and thus there is no need for a trial.” (sic)

Examples they seem to have forgotten in a crime – any crime:

Example 1: A body is found lying at the suspect's feet, a smoking gun is nearby, suspect's prints are all over gun, and the body. Two people saw him shoot the victim. Suspect says: “Who me? A hoax? A set up, fake news.”

Example 2: A crook breaks into home to steal jewels, but finds none, runs out and cops nab him. He pleads innocent saying: “Hey, I took nothing, nothing was taken or stolen, so there is no crime.”

FYI: B&E is a crime, and to say you shot at someone but missed, that too sir, is still a crime. (Attempted murder is a crime).   

Historical note of having a fair, open (public), and evidence with witness or documents, or both is absolutely necessary even in this “political” not truly “criminal or civil” trial and these words to heed for every Senator:  

“Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous view in the forum of public opinion is an effective restraint on possible abuse of judicial power.” 

 — Justice Hugo Black, writing majority (7-2) opinion, In Re Oliver, 1948

First, what is a fair trial: The basic, logical, and rational short definition is that “a fair trial is the one which is held in public view and in an open court, in presence of accused who is defended by a lawyer, given an opportunity to examine and cross-examine all the evidence and witnesses.”

GOP View of Fair Public Trial With Witness Testimony

Key extracts from here:  How did we get to this point? Sen. Mitch McConnell (R-KY), GOP majority “leader” has a problem with the facts.

McConnell is taking the position that the evidence presented in the House impeachment inquiry is all the Senate needs to decide whether Trump should be removed from office, and that further testimony from witnesses in the Senate impeachment trial is unnecessary.

McConnell earlier announced publicly that he is in total coordination with the White House on the matter and says he has the votes to launch proceedings in the Senate without the commitment to hear from any witnesses. There’s just one issue with McConnell’s preferred approach.

Unless Republican senators want to accept the facts laid out by the House leadership and restrict themselves to the legal question of whether those facts demonstrate impeachable conduct, they’re going to need to call witnesses.

As many have explained, the House impeachment investigation was analogous to a grand jury investigation, with the resulting impeachment vote akin to a decision to indict.

Republicans are now acting as if the House proceedings were a full trial — meaning that the Senate is now acting as an appellate court that can only consider the closed record developed below.

Sen. Marco Rubio (R-FL) tweeted: “… the testimony & evidence considered in a Senate impeachment trial should be the same testimony & evidence the House relied upon when they passed the Articles of Impeachment.”

The text of the Constitution, the Senate’s own powers, and weight of history demonstrate this is wrong. The impeachment clauses mandate that the Senate must conduct a trial — and while impeachment proceedings are not exactly a trial as would occur before a court, the principles of both criminal and civil law provide useful guidelines for how the Senate should act to fulfill its constitutional responsibility.

The Constitution is clear: The Senate has “the sole Power to try”— not review — “all Impeachments.”

Thus, unlike an appeals court, the Senate’s powers are not limited to review and remand; instead, it alone has the power to determine whether an impeached president should be punished by removal from office and disqualification from “any Office of honor, Trust or Profit under the United States.” 

These are powers reserved for trial, not appellate, courts.

Senate Republicans’ logic implies that the trial has already occurred: In this reasoning, the House found Trump guilty and imposed on him the punishment of impeachment.

But that cannot possibly be the case, because the Constitution explicitly reserves to the Senate the ability to punish someone who has been impeached with removal from office and, possibly, disqualification from holding future office.

The very fact that the Senate is granted the authority to impose punishment on Trump means that the Senate cannot be an appellate court, which would generally be limited to reviewing and remanding a case back to a trial court — in this case, the House. 

What’s more, the two times in history that a presidential impeachment has reached the Senate, the chamber has treated it as a trial.

First: The Senate proceedings in Andrew Johnson’s case included the testimony of 25 witnesses for the prosecution and 16 for the defense.

Second: During the impeachment of Bill Clinton, the Senate deposed three witnesses — even after the extended independent counsel investigation that preceded the Senate trial.

In fact, the Senate obtained witness testimony in every impeachment trial held in the past 50 years.

There are times when even a trial court can decide to render judgment without hearing all the evidence such as that brought in both criminal and civil trials.

Additionally, criminal cases sometimes have directed verdicts, while judges can issue summary judgments in civil cases.

Unfortunately for Senate Republicans, these are not helpful analogs if they wish to avoid hearing from witnesses in the Trump impeachment.

Directed verdicts occur only after the prosecution has presented all its evidence and witnesses and made all its arguments. At that point, the judge can make a ruling based on the evidence provided by the prosecution after determining that a jury would not reach a different conclusion as to culpability.

But this doesn’t apply in Trump’s impeachment, in which the House managers will act as the prosecutors before the Senate.

The evidence presented in the House was not all the evidence available: President Trump blocked several witnesses from testifying, and at least one of those witnesses, John Bolton, has now indicated his willingness to appear before the Senate. 

Let Them Testify Under Oath if There is Nothing to Hide

It’s more appropriate, therefore, to have a full trial, in which both sides would be able to call witnesses and provide evidence both included in the House impeachment record and new information that has come to light since and let’s face it plenty has (cite: Lev Parnas trove of evidence and public statements – he wants to testify before the Senate as does Bolton).

Here we are now: Witness testimony in a trial is absolutely necessary either live witness testimony or on video under oath to a Grand Jury like Bill Clinton did in 1998-99 – the video where Clinton lied under oath and was an impeachment article.

In a Schumer letter to McConnell, he asks to hear from four witnesses – thus far all refusing to testify:

1.    W/H Acting CofS Mick Mulvaney (he is also Director OMB).

2.    Former National Security Adviser John Bolton.

3.    Associate Director for National Security at OMB Michael Duffey (emails connected to Mulvaney uncovered).

4.    Robert Blair, senior adviser to the Mulvaney, Robert Blair.

Schumer was asked about his position during Clinton’s 1998 impeachment when he did not support calling witnesses in to testify. Their testimony was on videotape (Clinton lied under oath).

Schumer response now (perfectly logical I might add: “The witnesses in '99 had already given grand jury testimony. We knew what they were going to say. The four witnesses we called now have not been heard from. That is the difference, and it is a difference that is totally overwhelming. To engage in a trial without the facts coming out is to engage in a cover-up. To conduct a trial without the facts is saying we're afraid. The four witnesses we propose have direct knowledge of why the aid to Ukraine was delayed. They might present exculpatory evidence that helps President Trump. It may be incriminating against the president. But they should be heard. Also, we haven't seen a single good argument about why these witnesses shouldn't testify or these documents be produced, unless the president has something to hide, and his supporters want that information hidden. All that would help ensure a speedy and fair trial. We believe these witnesses and documents would provide the evidence they're looking for, without being dilatory and letting the trial drag on for too long.”

Also from Schumer: “Some Republican senators privately have told me that while they believe the charges against the president are serious, they haven't seen enough evidence to make a decision. That is precisely why we need witnesses and documents and not a cover up. That's one of the reasons I've proposed subpoenas for the witnesses and documents, all directly relevant from officials who have yet to testify under oath during any stage of the house process.”

My 2 cents before this GOP PR show starts: So, what is McConnell’s and Graham’s and other hardline Republicans' game plan? 

Obviously: To protect Trump at all costs. Why? They are scared of the GOP base which Trump very shrewdly controls and that which they need in 2020 to maintain power.

Thus as stated before “impeachment is a purely a political process not a legal one.” Okay, then, just flush the Constitution down the toilet along with our nearly 244 years of proud democratic history and give a big win to Trump and to many countries trying to destroy us (e.g., Putin and Russia #1 example), but no, they did not: We will have done it to  ourselves and from within.

Taken from Lincoln’s speech with nearly that same meaning:

The Perpetuation of Our Political Institutions
Address Before the Young Men's Lyceum of Springfield, Illinois (January 27, 1838)

“At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.”

Thanks for stopping by. I rest my case.