Thoughts on Impeachment 2020

As the impeachment trial of President Donald John Trump is set to begin in the U.S. Senate on January 21, 2020, I wanted to post random thoughts accumulated over the past three months of hearings in the House of Representatives.

The article of impeachment for abuse of power charges that the president withheld $391 million in funds approved by Congress to aid the government of Ukraine in its war against Russia in order to pressure the Ukrainian government to investigate one of the president's political opponents. On Jan. 16, 2020, the U.S. Government Accountability Office, an independent government watchdog agency that advises Congress, concluded that the president's action violated the law, specifically the Impoundment Control Act, which established procedures to prevent the president from substituting their own funding decisions from those of Congress. Kelly Conway, an adviser to the president, responded to the media that the aid had ultimately been released, and therefore there was no problem. Critics of the president's actions have argued the law was still violated. But the bigger question, it seems to me, is that if the funds were approved  by Congress in the 2019 federal budget to aid the Ukrainian war effort against Russia and the president sat on the funds for seven months, did Ukrainian people die as a result of the delay?  And remember, the president didn't inform Congress or federal agencies of his reason for withholding the aid, and it wasn't until seven months had passed and the action was drawing flax that the aid was released that general comments from the White House about fighting Ukrainian corruption surfaced, If the answer is no, that there is no indication of any additional deaths, then perhaps the funds were not as important to Ukraine's war with Russia as Congress originally thought. If the answer is maybe, than that is very damning for the president.

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Sens. Mitch McConnell (R-Ky.), majority leader, and Lindsey Graham (R-S.C.) have both stated to the media that they support the president and will not be impartial jurors in the impeachment trial. The response that comes to mind is that they should not take the oath of impartiality administered to all senators before an impeachment trial and should recuse themselves as jurors. If this were a criminal trial and the judge learned that they had made such statements, they would be excused as jurors. And if, as McConnell has argued, the impeachment process is only a political act and therefore impartiality is not relevant, then why is the oath required? The requirement of the oath indicates that senators are meant to vote for what they personally think is right and just and not because their vote will benefit their political parties. The decision to have the senators swear to be impartial has been credited by historians as prompting those voting in the first (1868) impeachment trial to vote their conscience. President Andrew Johnson avoided conviction by just one vote. On Jan. 16, 2020, McConnell and Graham took the oath--anyway

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Sen. Graham has dismissed the testimony presented during the House impeachment hearings as both "circumstantial evidence" and "hearsay." Circumstantial evidence relies on inference to connect the evidence to a conclusion of fact in contrast to direct evidence that makes the connection directly. While Graham and television courtroom drama lawyers may belittle circumstantial evidence, during a criminal trial a judge will either tell a jury on his/her own or at the prompting of a prosecutor that direct and circumstantial evidence must be given equal weight in proving or not proving  a defendant's guilt. This is because people usually do not commit murder before witnesses and do not brag that they are committing embezzlement. As to hearsay, which is the report of another person's words,  Graham, a former military judge advocate, should know that the first step in prosecutors' building criminal cases is often hearsay. Someone hears another person say that he/she saw or heard or knows something. This leads to tracking down the person who actually saw or heard or knew something, which becomes direct evidence. And that is what happened in the case of House hearing witnesses against Trump; it led to people with direct evidence, many of whom have been prevented from testifying by President Trump. While hearsay testimony is generally not admissible in a court of law because a defendant has a right to cross examine a declarant, there are hearsay exceptions that make the hearsay testimony admissible. Several apply in this situation, including when the person who made or heard or knows the something is unavailable due to death, illness, or due to privilege--and President Trump has made potential witnesses unavailable by claiming executive privilege. Another exception is excited utterance, which could apply in the Trump/Ukrainian situation (e.g., John Bolton was heard to compare, in what appeared to be an excited utterance, the withholding of the $391 million to a "drug deal" that he would not be a part of). And so, the testimony from the House hearing should not be disparaged as circumstantial evidence or hearsay, because circumstantial evidence is just as acceptable as direct and hearsay can be admissible in a court of law.

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President Trump and his attorneys, including Alan Dershowitz, argue that a president cannot be prosecuted while in office. President Nixon told interviewer David Frost that if the president does something that might otherwise be illegal the fact that the president does it makes it legal. If either or both of these statements is true, then impeachment is toothless, Congress has no real oversight over the president, and there are not three coequal branches of government but, at best, two--the president and the judiciary--and, most likely, one. But the founding fathers included impeachment in the constitution for a reason, and they laid out three co-equal branches of government because they wanted checks and balances to prevent one branch running the country. Therefore, Trump and his attorneys are simply wrong.

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When President Clinton was impeached in 1998, as an attorney, I felt that a president lying under oath, even about a private matter, was worthy of impeachment and conviction. He had, after all, been ordered by a judge to testify on the matter, and he lied. I was appalled that members of two of my professions--journalism and law--argued that lying under oath didn't rise to the level of impeachment. And so, I reasoned, these attorneys will be okay about people lying under oath to them because the president did it and got away with it. I even talked to a group of patent attorneys who were afraid of that happening because defendants would figure out if they lied they kept their patents and if they told the truth they would lose them and President Clinton had shown that lying in one's self-interest was okay. Twenty-two years later, senators who voted to acquit Clinton have been criticized for not taking the testimony of women who accused Clinton of sexual harassment seriously and with respect in the wake of the me-too movement, and it is a stain on their reputations and, perhaps, a burden on their consciences. In addition, anecdotally speaking, lying under oath in one's self-interest appears to have increased. And now, two decades later, we have another president who lies--not just under oath--but all the time and specifically about his involvement in pressuring the Iranian president to get dirt on a political amount. I have several rules in life. One of them is, if someone lies to me about big things and lies a lot, I won't trust him or her--ever--or associate with them. Why would anyone want a president whom they can't trust--because that kinda defeats the point of having that person as president.

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Did the Democrats do everything right? Of course not. But their trying to get everything related to impeachment done before the 2020 election makes sense because the high crimes and misdemeanors President Trump is accused of are related to his trying to influence the 2020 election and he has shown no regret or remorse about his call to the Ukrainian president and has even implied that he would do it again.

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President Trump and his attorneys, including Alan Dershowitz, argue that abuse of power is not an impeachable offense. Dershowitz specifically cites the 1868 impeachment trial of President Andrew Johnson and arguments made then. But the House Judiciary Committee in 1974 approved articles of impeachment against President Richard Nixon that included abuse of power. The president’s team would (and probably will) argue that that is not a precedent because the articles were not approved by the House and did not go to trial. (Nixon resigned as a result of the House committee’s actions.) But the point is that the analysis of a House committee was that abuse of power is an impeachable offense. The House committees who developed the articles of impeachment against President Trump probably felt safe in creating the abuse of power article because the charge had been entered before and recently, more recently than the trial Dershowitz cites.