Wednesday, January 29, 2020

Turning the Radio Off

I'm enjoying this argument that the Senate "trial" is a "trial" in any legal sense of the word.  Lawyers for the President just argued to the Senate that impeachment is akin to a criminal trial because the language of the Constitution speaks in terms consonant with criminal law.  However, there are no rules of evidence nor rules of procedure in play here, aside from the rules of the Senate which determine who speaks, what is said, and how long they have.

There's a lot of loose complaining, for example, about hearsay.  Like this:


Ted Cruz is a lawyer, and he knows he's using the word "hearsay" in a non-legal way.  He knows the myriad exceptions to the hearsay rule, and he knows nothing the Senate has heard in this proceeding (I won't call it a "trial," that's misleading) is presented by first-hand witnesses nor is it anything but hearsay.  The President's lawyers, in their answers this afternoon, refer to things President Zelensky "knew," or what President Trump said or meant, even though neither president was a sworn witness giving testimony under oath in the House impeachment investigation.  Those facts, quite simply, are not in evidence, not even in the record from the House accepted by the Senate.

The argument of the President's counsel is that there is not enough alleged here to impeach the President.  The second leg of that argument is that there is not enough evidence.  The third leg is that failure to present enough evidence cannot be cured by a Senate trial, because this isn't really a trial.  But there isn't any evidence being presented here; not in the legal sense.  There are allegations being made, and testimony of witnesses in the House being characterized, but no evidence is put before the Senators as triers of fact, as persons who hear the evidence for themselves and decide whether or not the arguments of counsel and the evidence presented sways them to decide one issue or another put before them.

In a criminal, or even a civil, trial, the jury as triers of fact would be asked specific questions aimed at satisfying the applicable law for the set of facts set before them in the trial.  That is, if the jury finds certain facts to be true and established, then the law establishes the crime charged is, or is not, proven.  In a bench trial there are no such questions, but the judge sits as finder of fact (as the jury) and finder of law (what law applies to the facts, and how).  The Senatorial procedure of an impeachment trial is roughly equivalent to a criminal bench trial.  However, this procedure is not bound by any rules of evidence or procedure that bind a trial court.  So it isn't a trial in any sense of the word.  It certainly isn't a trial without receiving and evaluating evidence.

The Senate, at this point, is not being asked to weigh and adjudge evidence.  They are being asked to respond to arguments from House managers and counsel for the President.  This is not a trial in any sense of the word. (And again they preach it round and square.  Counsel for the President says you don't go to trial without hearing from witnesses and conducting depositions.  Depositions are a discovery practice in civil law.  Criminal lawyers often go to trial without having had a chance to examine witnesses under oath beforehand.  And if the Senate calls witnesses, the case will "drag on for months."  Apparently the House is supposed to do all the gathering of evidence and cross-examination of witnesses and determination of who's story is the right story; the House, in other words is meant to be both investigator and trier of fact, and then present it to the Senate for an imprimatur and a verdict.  It's a logical and legal absurdity; but so long as it works politically.....)

(And now I'm listening to Alan Dershowitz declare that a President cannot be impeached because of his "motive" if the POTUS thinks his heart is pure.  I am not making this up.  Adam Schiff, a former criminal prosecutor, is shredding it just now.  But Dershowitz' argument is that, unless the President benefits personally and financially, that he benefits politically is irrelevant.  The argument is a President can do anything that means he's more likely to be re-elected, because it doesn't necessarily mean he'll make any money on it.  Unless it puts money in your pocket, in other words, it's not corrupt.  Wow, is that a bankrupt legal as well as Constitutional argument.
Yeah, that's how it's going.)

Eh, I have work to do.
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