Let Us Now Complain About Legal Niceties

Officials described the discrepancies cited by Vindman as minimal and of limited significance to investigators. Even Vindman "didn't ascribe any sinister motive or effect" to the changes he sought that were not incorporated into the document.

— Greg Miller (@gregpmiller) October 30, 2019

...that an impeachment is not just a legal process, but a political one as well.

Yes, the omissions from the "transcript" matter.

The nixing of details about Trump's focus on Biden will make it harder to claim Trump only cared about "corruption."

And it will make Rs more worried that they don't know what's still to come.

New piece:https://t.co/5caRiIOorN

— Greg Sargent (@ThePlumLineGS) October 30, 2019

Quid pro quo, in law, is not the same thing as it is in the news narrative.  But just as motive is meaningless in a criminal trial, it means everything in the story we tell about the crime. So the omissions in the transcript may not have meaning under the law, but they mean a great deal to the general public. What constitutes evidence of guilt, or concealment, in law, can be very different in the public eye.

Discrepancies minimal to a criminal investigator may mean a great deal to the jury, which in this case will be not the U.S. Senate but the voters.  The court may not need a motive for the crime, but the jury needs a story, and motive is what drives the narrative to its climax.  Leaving words out of a "transcript" that wasn't a transcript (it says so on the memorandum released by the White House) is not necessarily evidence of criminal intent; but it is damning evidence of clumsy concealment, which is what most of this story is being understood as.  The more Trump insists the phone call was "perfect" and that the transcript doesn't say anything about "quid pro quo" because it's not a transcript but he insists it is the complete record of the call, the more the public thinks he's hiding something.

Here's another example, ripped, as they used to say, from today's headlines:

On Tuesday night the House Judiciary Committee released a set of impeachment protocols to go along with the broader resolution that the House will likely vote on this week, outlining the public phase of its impeachment inquiry.

The new impeachment protocols offer the President the due process rights that Republicans complain have been absent in the inquiry, but they come with a twist.

A provision in the package says that if the President “unlawfully” refuses “to make witnesses available for testimony to, or to produce documents requested by” the committees currently leading the impeachment probe, the House Judiciary Committee chairman will have the right to deny the due process procedures outlined in the procedures.

This prompted a response from one commenter at TPM:

The problem with the article – OK, one problem with the article – is that you can’t use the term “due process” and then talk about denying people “due process.” That’s not what “due” means.

"Due" is not what "due process" means, either.  You can deny due process, but only if the courts say it was not a denial of due process.  Which seems like a terribly lawyerly distinction, but it's the correct one.  "Due Process" is defined by the courts, not by onlookers; and there's the linchpin:  impeachment is not a process of the courts.

Despite the lengthy letter from the White House Counsel a few weeks back (!; it seems much longer), there is no case in which the courts have found that a President must be allowed due process in impeachment proceedings.  The House gets to set its rules on how an impeachment is conducted, and the Supreme Court does not review House's authority to set its own rules (co-equal branches of government doctrine).  Impeachment does not have to include due process in large part because it is not a criminal proceeding (that kind of proceeding is reserved to the courts).  Due process is guaranteed by the 5th and 14th Amendments, but the concept applies to courts of law; not to impeachment proceedings under Art. II of the Constitution.

So while the House may label it's proceedings "due process," that doesn't open the door to the Court reviewing the proper standard of due process which must be allowed.  It doesn't even require the House align its rules with the court rulings on what constitutes due process. So the House is perfectly within its Constitutional authority to establish rules for impeachment that are conditional on the cooperation of the President.  They can call it "due process," or marzipan, if they want.

The Senate isn't bound by the 5th and 14th Amendments, either.  Indeed, just how much authority the Chief Justice has in presiding over the trial is really up to the Senate.  The Constitution is silent on the matter, and the Chief Justice can't bring a case to the Supreme Court challenging the Senate's rules for an impeachment trial (there is, a) the question of standing, b) the question of conflict of interest; and c) the co-equal branches doctrine.  Three strikes, yer out!).

You may notice "unlawfully" is carrying quite a burden in the proposed rules.  It will mean one thing to the Democrats, another to Republicans or the White House.  That is, however, a trap the White House can't evade.  They can't go to court to argue about what the term means, and they can't use their argument to stave off impeachment.  Whatever they do, it will force them to continue to complain about process.

And the rule stands:  if you're complaining about the rules, you aren't winning the game.   If the Nationals last night had won Game 6 without two more runs after the controversial call, the game would be forever marred by the asterisk.  If they had somehow lost, that call would become the "turning point," and Nationals fans would forever complain about the "process."  And be labeled sore losers, for doing so.

Even if you win the outcome, arguing about the rules is not the same as winning.