The rules for impeachment must be changed
by Dr. Larry Fedewa (January 22, 2020)
Some notes on the early stages of the Senate impeachment of President Trump:
A. Definitions: “crime”, “evidence”
a. It appears that the most basic differences between the two sides in the impeachment trial revolve around the definitions of two terms: “crime” and “evidence”.
b. The President’s team insists that the Constitution language “bribery, treason and other high crimes and misdemeanors” requires that impeachment can be carried forward only if there is an act which breaks a recognizable law, in other words, a “crime” as normally defined. This can be considered a technical definition of “crime”.
c. The House definition of “crime” includes “abuse of power” and “obstruction of Congress”, neither of which is recognized as a crime in either legal or common usage. The problem with both these terms is that they are too vague to be enforceable. That means that both terms can be used to mean whatever the author wants them to mean and therefore no defense is possible. The confrontation is simply one opinion against the other.
- The analysis of the definition of “evidence” is similar. In a court of law, there is a clear definition of the “rules of evidence”. These “rules” disqualify hearsay (“second hand”) testimony. Only knowledge obtained by personal communication, whether spoken or written, is admissible as “evidence”. Since there is NO testimony from 16 of the 17 witnesses in this case which is not hearsay, there is NO “evidence” that the opinions presented by these witnesses are admissible. The one exception was Mr. Gordon Sondland who did in fact ask the President what he wanted from the Ukraine. The President’s answer was, “I want nothing from the Ukraine”. Thus, the sole direct evidence in all the House testimony undercuts the House case.
B. Dems’ expectations re: witnesses & documents
The Dems’ insistence on “witnesses and documents” has a serious chance of backfiring on the House allegations.
- In the first place, they wish to call John Bolton to testify in the expectation that he will collaborate their assumption that the President was guilty of illegitimate behavior. However, this assumption is based on Bolton’s statement that he has knowledge that has not yet surfaced in the House inquiry. He has NOT indicated what that knowledge is, or whether it hurts or helps the President. The expectation that Bolton will help the House case may be wildly mistaken.
- The President will insist that “comparable witness” be named by the President for each named by the House. Almost certainly, this would include Hunter Biden. The rationale is this: if the investigation of the Biden family’s corruption is justified as a legitimate endeavor which does in fact implicate both Biden’s (father and son), then the President’s mention of it to President Zelensky is justified.
- Finally, the assumption that the President was sufficiently frightened by Biden Senior’s presidential campaign to commit extortion would then be revealed as ridiculous. A byproduct of this testimony might well be the destruction of Joe Biden’s presidential aspirations.
b. The other issue is the documents demand. At this stage of the process, where does the time come from to study and analyze thousands of pages of documents from the various executive departments? It is unlikely that either side would suspend the trial for a few weeks to allow for that exercise. The President’s counsel would claim that this is further proof that the House did not prepare adequately for trial. In other words, if the House had wanted these documents, they should have fought for their release in court.
c. In passing, it should be noted that the Schumer strategy of causing apparently fruitless delays has what the TV people call “terrible optics”. Millions of viewers are finding the procedure itself boring enough without the Minority Leader insisting on one useless roll call after another, deep into the night hours.
C. Party line voting – extremely dangerous
Finally, one fact that those roll calls do establish is that the result in case after case is a strictly party line vote. This fact suggests that the final result may follow the same pattern with a few inconsequential exceptions. It thus becomes clear that, no matter who says what, the criterion for the vote which counts the most has nothing to do with all the rhetoric about preserving the Constitution and the rule of law.
The world’s greatest deliberative body is voting on the most important matter each member will probably ever face on the basis of party loyalty. Thus, if the Senate were in Democrat hands today, the Republican president would be removed from office, no matter how weak the case is against him.
Would the Republicans act any differently if the shoe were on the other foot? Very doubtful. Our democracy is thus thirteen votes away from an oligarchy.
D. The rules for impeachment must be updated or our right to elect the president will be lost, because any time both houses of Congress are of one party and the presidency of the other party, that president can be impeached without cause at any time.
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