What’s your plan for the Senate Trial?

by John P. Flannery

Nothing improves your aim like having a target — so said Aristotle, the consummate teleologist.

But it’s not clear to me that either the Dems or Rs have a clear plan to deal with the unexpected, that they don’t know precisely what their target it, that has to be what they do, that they relentlessly push to achieve.

When Minority Leader Schumer suggested witnesses for the Senate, the nation said, the equivalent of, yeah, we want those witnesses, more than 70% according to one or another poll. They are among the witnesses withheld by Trump in the House investigations related to the Trump’s Ukraine shakedown. These same witnesses are part of the obstruction. Why do we want to call a witness we haven’t debriefed when we have so much, so many admissions, and from these same witnesses, and on public tv, that we can introduce without them being subpoenaed or appearing, leaving to the White House to call these witnesses in rebuttal if any witnesses are allowed (more about this shortly).

Next up is the standoff, like it’s some surprise that Senate Leader McConnell would put his foot on the scales of justice and fix the Senate trial. How many data points does anyone need to know this guy is a foul opponent who will win, prevail, at all costs, and keep his senate majority safe by not letting America hear what the impeachment witnesses have to say at a trial, the constitution be damned. There’s no epiphany that he’s a scoundrell. There’s a danger therefore of asking the Senate to repair its corrupt ways and assure us of a “fair trial” before we participate.

It’s more likely that Trump will read Proust’s Remembrance of Things Past then we will get such assurances.

What exactly can the Senate say to assure us that we are going to have a fair trial — and when we proceed, are we agreeing it is a fair trial, when it is not. Now that’s a public and trial court dilemma.

We need the mind set of a criminal defense lawyer who knows more likely than not the tribunal is biased and the challenge is how we deal with that. In our courts, justice is a coincidence of the system, not a consequence of it. We have to fight in criminal courts, and in this impeachment, to obtain that coincident in whatever particular we may.

On the other hand, is there a limit to holding on to the articles of impeachment and not filing them? Yes, absolutely.

So, how do we proceed? What’s our Aristotelian plan?

Forget this fiction, that the cultist Republican Caucus is going to find independence from Trump and their corrleative belief that the President’s Article II powers are limited in any fashion.

So you have a strategy with somewhat of an identity crisis.

You don’t ever pretend the Senate, as it now exists, will be bi-partisan like it was during the Nixon and Clinton impeachments, and you call our the Senate for what it is, a dependent agent of Trump’s misconduct.

You state your severe reservations.

But you also participate.

And the triers of fact are not just in the chambers of the Senate.

That’s the key point.

You are looking at CJ Roberts and the members of senate but talking to the nation about our crisis in government.

The true jurors are spread across the nation.

But we need the trial to make the case.

But you have to put before the Senate and people the proposition that the Senate is biased and, subject to Trump and Moscow Mitch, doesn’t care to push back against Putin, doesn’t care to stop interference in our elections, from which they presumably expect to benefit, doesn’t care if the public monies are used to extort assistance in the upcoming presidential election for Trump.

Sure you are talking to the Senators in a chamber, but 23 Republican seats are up next year, and the nation, the unofficial jurors, are all watching.

This ready made to be the trial of the century — if we force a trial — that is anything like a trial. (You know Darrow did lose the monkey trial, but won the point.)

This is not the time to muddle the nation’s understanding of what’s going on with too much inside baseball, and false declarations, especially pretending if the nation gets Clinton’s impeachment rules, modified from those rules that determined Johnson’s impeachment trial, that we can go ahead full to a fair trial. We have to make it clear we are going into the valley of corrupt purposes to illustrate the corruption, and would be glad if the Republican Senators honor their oath but believe they are so corrupt they won’t.

We should spell out in a brief how the jury venire is infected and how certain members at the least may not take the special oath to hear the case since they’ve already failed that oath or have an irreconcilable conflict.

McConnell goes to the head of the class, but there are also 4 senators who have received funds from Trump to stand by him. Graham has said he intends to pay no attention to the facts or law. Senator Johnson was a fact witness himself, having talked to Sondland, and the VP Pence who would be a tie-breaker vote in any Senate procedural vote (dismiss, subpoenas, etc.) should be excluded as implicated in the corruption at the heart of the Ukraine shakedown.

This attack on the jury pool is a motion that needs to be filed the instant the articles are presented to the Senate, and “respectfully” insist that CJ Roberts review and rule on the motion before any oath is administered. If he decides it ‘swrong, Roberts is attacked as a tool of Trump and the Senate. If the Senate overrules him, better for Roberts and worse for the Senate, they are from the very start on record running a terminally biased kangaroo impeachment court, unworthy of respect.

We should ask that a subpoena issues for Trump to testify. Also first thing.

We should list the tapes of public statements by Trump, Mulvaney and Giuliani, and the readout of Trump talking to Zelensky, as admissible admissions, and supply cases and authority, and ask for a pretrial ruling.

We should call for direct and corroborating witnesses Sondland of course, particularly what was overheard in Kiev, and with authorities that an admission is an exception to the hearsay rule, just as the statements of Trump’s conspirators are admitted as exceptions to the hearsay rule. We have Taylor, Vindland, and others.

The text messages, emails, phone records should all be admitted. They should be premarked.

We should make the point that this is different than Clinton’s impeachment when depositions were taken and the Senate decided if the persons would testify. We already have deposition transcripts, and live testimony, so thee witnesses should be allowed to testify directly without any delay.

There should be a challenge to McConnell’s indicated efforts to dismiss the “prosecution” right at the start by a majority vote to defeat the constitutional presumption that there will be a trial, and that this impeachment proceeding is a proceeding not amenable to a simple dismissal by a majority vote.

As for how to handle the evidence, this is a civil proceeding, not a criminal proceeding, and the standard of proof, argued from the outset should be a preponderance of the evidence, not clear and convincing, nor beyond a reasonable doubt.

There should be an instruction demanded of Roberts and given to the Senators that these proceedings are not political, that a Senator may not make a political decision, but must make the decision based on the constitution, the law, and the facts. And that is the significance of the oath they are taking. The public discussion that this is political is an argument that the decision is merely partisan and one need not even read or hear the testimony — see Graham’s outrageous remarks on this score.

In Clinton, the Senate went into a closed session to discuss the articles and conducted the voting for conviction or acquittal in public.

In Trump, the Senate should follow this practice, at least for the purposes of voting for or against Trump’s removal from office. In other words, have the vote in a sealed proceeding so that Trump may not muscle the vote any more than he already has.

Those in the House and Senate should avoid putting themselves in a position where they are bargaining witnesses and agreeing to other witnesses, who are not relevant to the proceeding. That’s not how a real case is run. And this impeachment trial should be no exception. It is unfortunate that Biden has said he won’t appear if subpoenaed. I think he should have said nothing. I don’t think he should be a witness. But like any plan, there will have to be adjustments on the fly.

At the end of the day, the House managers should have proven the Senate was an unjust and unfair tribunal, hurt the senate, and compromised Trump even more than just filing the articles.

In addition, at a critical time after early rulings by Roberts and the Senate, the House should have ready for issuance a resolution critical of the Senate’s railroad for its lord and master Trump. Of course, only if it’s justified. But, with “this gang,” how could it be otherwise.

More than that, the House should continue to press the pending cases and consider additional and different articles of impeachment to succeed the articles already approved by the House.

We can be assured that Trump will do something else that is unlawful and hurtful to good order while all this is pending — he can’t help himself. And that should be part of the public argument.

We should appoint our managers now. It’s a lot of nonsense that we don’t know who to send. If we only sent Schiff, we’d already be in position. But we have others. We know who they are. We need less Noh Theater Drama and more authentic believable realism. When we say we “trust” one or other leader to have it under control, we are saying we don’t have any idea what they/we are doing. This is not nuclear physics. We can do and publish what we are doing and it should only make a difference for the better. We should forget the idea that this appoint of Managers is some kind of honorific commission. This is a work detail that must be as brilliant as possible in the task ahead.

As a Hill rat, former prosecutor, and trial lawyer, I think we have the case, and should stop looking for more, but not disregard more, like when we have the disclosures from the FOIA requests by the highly well regarded, Center for Public Integrity.

Anyhow this is my template for going forward, no matter how they’ve started already. We are about to enter a critical phase and the psychology of a “mad” president should be a small part of how we do this, hard and fast, on our plan as much as humanly possible.

Just saying.

JPF

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