Trump’s Impeachment and the Trial of Jesus: Comparison and Contrast

GOP Rep. Claims Trump Is Being Treated Worse Than Jesus: Yes, that Jesus

Some may be surprised to learn this:

Republican Rep. Barry Loudermilk (Ga.) used his time during Wednesday’s debate on the House impeachment vote to argue that Jesus Christ received more due process when he was nailed to the cross than President Donald Trump has during the impeachment process.

“When Jesus was falsely accused of treason, Pontius Pilate gave Jesus the opportunity to face his accusers,” Loudermilk said on the House floor. “During that sham trial, Pontius Pilate afforded more rights to Jesus than the Democrats have afforded this president in this process.”

These assertions are questionable. Representative Loudermilk has, moreover, overlooked an important way in which Republican politicians resemble Pontius Pilate.

In John 18:38 we learn that Pontius Pilate said to Jesus, “What is truth?” and then scornfully turned and left the room.

Destroying the Republic: A Feature, Not a Bug

Franklin

Amanda Marcotte, writing in Salon, has this to say:

There is no doubt that Trump is guilty, and keeping him in power is an abdication of the duty of congressional members to defend and uphold the Constitution. But it’s naive to think that this choice to back Trump’s criminality is being done out of fear. Instead, the likelier story is that most Republicans support Trump not despite, but because of his all-out assault on our democratic system.

Whatever word you want to use for it — fascism, authoritarianism, pick your poison — the grim reality is that Republicans, both politicians and voters, appear to be all in on this project. It’s painful to admit this, but Republicans have flat-out rejected democracy. As a group, they are pushing towards replacing democracy with a system where a powerful minority holds disproportionate and borderline tyrannical control over government and blocks the majority of Americans from having meaningful say over the direction of the country.

Republicans are not cowering in fear of Trump. On the contrary, they are exalting in his shamelessness. Watching Republicans at impeachment hearings, where they performed outrage for the cameras, lied with obvious glee and gloried in sharing conspiracy theories, it did not appear that they were intimidated by their president or anyone else.

No, Republicans clearly feel empowered by Trump. He frees them to reveal their darkest desire — which is to end democracy as we know it, and to cut any corners or break any laws necessary to get the job done.

**

Good morning to today’s readers from Mother Russia.

 

 

Oops!

oops

In the immediately preceding post, I wrote,

Also, please remember that, whatever Orange Man and Moscow Mitch say about witnesses, the House prosecutors can still call on whatever witnesses they choose to call, the Chief Justice will have to rule on the request, and the full Senate will have to decide whether to accept the Chief Justice’s ruling or vote it down.

But, according to Bruce Ackerman,

It is Chief Justice John Roberts, not the majority leader, who will be making all the key decisions.

This is the plain meaning of the Senate’s “Rules of Procedure and Practice” currently in force for the conduct of impeachments. These rules explicitly provide that the chief justice “shall” preside over the trial, that it is the “Presiding Officer” who “shall direct all forms of the proceedings,” and that he may “rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence.”

Roberts’ powers are not unlimited. The rules explicitly grant “any member of the Senate” the right to object to Roberts’ evidentiary decisions, and if the chief justice stands firm in his opinion, a senator may demand “a vote of the Members of the Senate” on “any such question”—with a simple majority sufficient to overturn Roberts’ ruling. Nevertheless, the Senate’s authority is strictly constrained by the rules it has itself established. While it can reverse particular evidentiary rulings, it can’t bar anybody from appearing as a witness. Instead, it is up to the lawyers representing the House and the president to make these critical decisions, with the proviso that “witnesses shall be examined by one person on behalf of the party producing them, and then cross-examined by one person on the other side.”

 

Paging Kafka

Theater of the Absurd

 

Greg Sargent, Greg Sargent, Susan Collins and Joni Ernst reveal weakness of Trump defense

Jennifer Rubin, Schumer has these five advantages in impeachment

Laurence Tribe, Don’t let Mitch McConnell conduct a Potemkin impeachment trial

Everybody has noted the hardening of positions on impeachment, and lots of poohbahs have predicted everything will stay locked in place. I don’t know, but that’s probably true.

But it’s also true that Orange Man has decided to stonewall on the witnesses with that celebrated “direct knowledge” of relevant facts, and Moscow Mitch has chosen to be Orange Man’s lap dog, this despite the fact that

  • 71 percent of our body politic want to hear from Bolton and the others, and the fact that
  • in a trial to be presided over by a Republican Chief Justice, and a clear majority on the jury, Trump cannot avail himself of the bogus complaint that he’s in a venue biased against him, and the fact that, according to the polling data,
  • a portion of those opposing impeachment have bought the “no direct evidence” argument, concluded that Trump probably didn’t do what is alleged, but would really like to hear from the most knowledgeable witnesses—in order to button up their assumption that Trump is an innocent man.

Also, please remember that, whatever Orange Man and Moscow Mitch say about witnesses, the House prosecutors can still call on whatever witnesses they choose to call, the Chief Justice will have to rule on the request, and the full Senate will have to decide whether to accept the Chief Justice’s ruling or vote it down.

Ditto, when Trump’s trial counsel, whoever he or she may be, calls Adam Schiff, the whistleblower, and Hunter Biden to take the stand.

Greg Sargent’s piece shows us how, as a result of all this, Republican senators in swing states are tying themselves into knots that a pretzel would envy.

The Hogwarts sorting is continuing to work its magic—and it’s going to keep on sorting for some time to come. The swing state Republican senators are sticking with Trump. But with every day that passes, they are compelled to take positions that are more and more ridiculous.

Sorting_Hat

My View from Thirty Thousand Feet

The Republican Party has almost, but not quite, become entirely the Party of Trump. I think the impeachment process will pretty much finish the job. It’s like a jar of dirty liquid, left out in the sun to evaporate down to toxic sludge.

If the Republican Party were not willfully toxic, I might mourn the coming political extinction of any remaining “moderate Republicans.” But the “moderate Republicans” are being compelled to pose as “moderates,” in order to con enough centrists into voting for them, so that they may keep on functioning as Orange Man’s enablers.

Susan Collins and her ilk are just about to retire into that obscurity which they so richly merit.

What Trump’s Responsive Move Would Be, If He Were a Rational Bad Man

thinking irrationally

My preceding post describes the Democrats’ gambit as of this Sunday.

How would a rational bad man in Trump’s position respond? He would be thinking along these lines:

In a real trial, you can’t hide behind “executive privilege” or some such claim to cherry pick the evidence that supports you, while burying the evidence that shows your guilt. If you try to do that in a normal trial, the judge will say you have “waived” the privilege, and make all the relevant evidence come out.

But I, President Rational Bad Man, am in a much better position. I could get away with answering the Democrats’ case with cherry-picked evidence.

And the Republicans will bloody well let me get away with it.

And the “trial” would bear some resemblance to a fair process, if he didn’t look at it too closely.

And so, as a rational bad man, that is my best course of action.

And, so, that is what I shall do.

Will Orange Man Act Like a Rational Bad Man?

Who knows? But I very much doubt it.

And here’s the icing on the cake, the cherry on the sundae. A glance at the calendar shows it is December 15. The Senate trial is about three weeks away.

And Orange Man still hasn’t picked his trial counsel.

In All Things Appertaining

Rule 194.3 of the Senate Rules for Impeachment Trials prescribes the following “form of oath to be administered to the Members of the Senate and the Presiding Officer sitting in the trial of impeachments”:

I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of ____________________, now pending, I will do impartial justice according to the Constitution and laws: So help me God.

It is Saturday Afternoon, So Let Us Wring Our Hands and Rend Our Garments

render

The British election has engendered another burst of hand wringing and garment rending among progressives. Actually, as Eric Levitz writes—tongue firmly planted in cheek—“in a shocking turn of events, the outcome vindicated every American political commentator’s proposed strategy for defeating Trump in 2020.”

Levitz has lots of other interesting things to say as well—from his perspective as a Democratic Socialist—but I want to turn instead to Ed Kilgore’s companion piece in New York Magazine. In five paragraphs, Kilgore accurately distinguishes between the forest and the trees.

One key fact is that there has been no impeachment backlash.

A second key fact is that Trump’s popularity remains unchanged. That’s because “you are either repelled by him, or are overjoyed that he repels people you dislike.”

A third key fact is that his national approval level is so low that it would be a big stretch for him to win the Electoral College. Not an impossibility, but a major stretch.

The Really Astonishing Thing

If the numbers were reversed—if 53.2 percent of us loved his ass, while 41.9 percent hated his guts, rather than the other way around—it might not be breathtakingly odd to make arguments intended to appeal only to 53 percent of voters, arguments destined to disgust and repulse the 42 percent who are against you.

But, on impeachment and much else, Trump is appealing exclusively to 42 percent of the population while spitting in the eye of everything else.

And, for this, fellow hand wringers and garment renders, let us be truly thankful.

The Senate Trial: Further Observations

The Trial

On Thursday, Moscow Mitch declared that—contrary to some previous reporting about his plans—Old Moscow would allow Trump’s lawyers to decide what witnesses to call (or try to call), what documentary evidence to present (or try to present), and what arguments to make.

Some commentators were shocked and surprised by this declaration. I am surprised at their surprise. Trump will be the person on trial. Counsel for the defendant determines what defense argument to make, subject to the judge’s refereeing—for example, to prevent the introduction of inflammatory evidence that is irrelevant to the defendant’s guilt or innocence.

Rules and Strategy

Anticipating the Senate trial in January, many of you will just enjoy the holiday season and stock up on beer and popcorn in advance of the trial. There is nothing wrong with this plan. As the song says, God bless ye merry gentlemen, let nothing you dismay.

However, should you be so inclined, you may wish to check out the Senate rules on impeachment procedure, found here, and a long explanation of how those rules might apply: Hilary Hurd and Benjamin Wittes, Imaging a Senate Trial: Reading the Senate Rules on Impeachment Litigation. Also worthy of a read: Greg Sargent and Paul Waldman, On impeachment, Democrats can put Republicans on defense. Here’s how.

Here, I will highlight the highlights of some of the highlights.

A “Motion to Dismiss for Failure to State a Claim”?

Often in litigation, clarity is the friend of one side and confusion is the friend of the other party to the lawsuit. In this case, lots of the Republicans have chosen the bumper sticker, “TRUMP DID NOTHING WRONG,” a slogan that utterly confuses two very different claims:

  • “he did nothing wrong because he didn’t do what the articles of impeachment say he did,” and
  • “he did nothing wrong because conduct described in the articles is impeachment is not only not impeachable, it isn’t even wrong.”

As I wrote a few days ago, the rules of civil and criminal litigation provide a pre-trial procedure for a defendant to argue that the conduct described in the complaint is not illegal. The Senate’s rules on impeachment do not refer to such a procedure, but I am sure that if Trump wanted to call for an initial vote on a motion to dismiss, the Senate would accommodate him. Indeed, fairness and logic would require the Senate to hold such a vote.

I assume that Trump and his defenders will not, however, push for a “motion to dismiss for failure to state a claim,” because, as I said, confusion is their friend and clarity is their enemy.

Democratic Witnesses—and the “No Direct Evidence” Argument

House members appointed as “managers” will steer the prosecution case. The big issue for them right now is whether to push for testimony from witnesses who do, indubitably, have “direct knowledge” of Trump’s intent: Giuliani, Mulvaney, Pompeo, Bolton. The Sargent and Waldman piece says yes, they should. So also say I, for what it is worth. (A rule of thumb says, never call a witness unless you know what her testimony will be,” but, hey, rules of thumb are made to be broken.)

Will the Democrats be Permitted to Call the Witnesses Who Spoke with Trump?

If Trump and his defenders object, then Chief Justice Roberts, as presiding officer, will make an initial ruling. If his ruling is in favor of the prosecution side, it can be overruled by vote of 51 Senators.

Wouldn’t you love to see the Republicans bellyaching about “no direct evidence”—and then joining with Trump to block testimony by everyone with direct evidence?

Can Witnesses be Compelled to Testify at a Senate Trial?

Yes, the Senate rules on impeachment so provide.

Will the Defense be Allowed to Call the Bidens, the Whistleblower, and Adam Schiff?

Same deal procedurally, of course. The Democrats have a valid argument that the testimony of these witnesses would not be germane to the issues being tried. The Chief Justice, as presiding officer, would make the initial ruling. Whichever way he might rule, if 51 of the senators want to hear from them, then the subpoenas will go out and they will have to show up and testify.

Republican Strategery

Moscow Mitch knows that “turning the trial into a circus” would not be good for those of his members in vulnerable states. Probably his best move, politically, would be to hear from the prosecution and just call for a vote on acquittal.

But if Trump forces him to go a different route, he’s now implying that that is what he will do. Most have construed this as Moscow Mitch’s being a total patsy for Trump. That may be so. What I detect, though, is some passive aggressiveness on Mitch’s part: if Trump wants to hang himself and demands the rope to do it, and if most of the Republican caucus decides to go along, then so be it.

A Yet More Extreme Scenario

Republicans bay at the moon about “no direct evidence,” then vote to block all the direct evidence from being considered.

Then they treat the country to a spectacle involving non-existent Democratic servers and about the Bidens.

That is apparently what Trump wants.

To the Orange Man all I have to say is, Go for it. Make my day.

 

 

 

 

 

 

 

Scexit Nextit

Scexit

Scotland has 59 seats in the House of Commons. Before yesterday’s election, the Scottish National Party held 35 of those seats. Today, 48 of Scotland’s 59 MPs belong to the Scottish National Party.

England gave the Conservative Party a big mandate to complete Brexit. In Scotland, support for the Conservative Party stands at 25 percent, down 3.5 percent.

In September, 2014, the Scots voted on an independence referendum. About 45 percent were in favor of independence, and about 55 percent wanted to stay in the United Kingdom. A principal argument against independence was that independence would take Scotland out of the European Union. Now, staying in the United Kingdom is what will take Scotland out of the European Union.

The Senate Trial

Clinton Impeachment

There are lots of reports that Trump wants a big show trial, whereas Moscow Mitch wants to find a way to get the whole thing over with, real soon if not sooner. In other words, Trump wants to pander to the basest of his base, whereas Moscow Mitch rightly fears that won’t play well in suburbia.

I have nothing to add about that particular conflict, except that it will be fun to watch. With any luck, Doofus Donald will end up writing scathing tweets about Moscow Mitch, and won’t that be lots of fun?

But here are some more substantive thoughts, which may also be original. (At least I haven’t seen anyone else make them—yet.)

A Motion to Dismiss?

The articles of impeachment, which will soon appear in their last and final form, are analogous to the complaint in a civil or criminal proceeding.

In litigation, prior to going to trial, the defendant is always permitted to argue to the court that, even if everything said about him in the complaint is true, he still should go free because the facts outlined in the complaint do not amount to a violation of any law. (See Federal Rule of Civil Procedure 12(b)(6) and Federal Rule of Criminal Procedure 12(b)(3)(B)(v).)

By analogy, a president against whom articles of impeachment are offered ought to be permitted, in advance of any trial, to argue that the acts charged are not impeachable offenses.

Voting on a Motion to Dismiss

If Trump should choose to make a motion to dismiss in advance of trial, how many of the 100 senators would need to vote in favor, in order for it to pass?

The logical answer is that such a motion should be deemed to pass, and Trump should be acquitted, if 34 or more senators vote in favor of the motion.

A two thirds majority is required to convict and remove from office. If more than one third are willing to say in advance that they will vote to acquit even if everything charged in the articles of impeachment is proved beyond any reasonable doubt, then, logically, there is nothing to try, because their minds are made up.

Will Trump in Fact Make a Motion to Dismiss?

Who the hell knows?

Would a Motion to Dismiss Be Good or Bad for Democrats?

The first thing to say is that it’s not our call to make, and it’s not Moscow Mitch’s call to make, it’s Trump’s call to make. He will do whatever he wants to do.

The second thing to say is that, if he does choose to move to dismiss before trial, I don’t think we should argue that he has no right to make the motion.

We should not make that argument because it would be a lousy argument.

Thirdly, IMHO, it would be a good thing for us if he chooses to make the motion, whether or not we win or lose—and we would probably lose the vote. Because we would be having the right argument—what’s an impeachable offense?—not a factual argument based on Republican gaslighting.

And we would get a bunch of assholes on record saying that corruption and obstruction are just fine and dandy. And isn’t that going to look good in those 30-second ads?

Should Democrats Call for Witnesses?

Yes, I think Democrats should try to call Trump to the stand, along with Mulvaney, Pompeo, Bolton, and maybe some others.

Let the Republicans explain why the Democratic case is weak because it “lacks direct evidence,” when it’s Trump who is hiding the direct evidence.

Should Democrats Hop Up and Down if Republicans Try to Call Hunter and Sleepy Joe to the Stand?

Probably they should hop up and down. But, first, they should try to get the defense to be real clear about the precise nature of the alleged relevance of Hunter’s and Sleepy Joe’s evidence.

Son of Clinton Email Server

perfection

Jonathan Chait, Hunter Biden is the New Hillary Clinton Email Server

Chait rightly identifies similarities between the Hunter Biden scandal and the Clinton email server scandal:

  • Trump will make a big deal of them,
  • the press will play into Trump’s hands, and
  • Trump is guilty of far worse acts—of using insecure connections and of rampant nepotism—but will probably get away with his hypocrisy.

But Chait wrongly declares that neither scandal is that big a deal. He also downplays a regrettable similarity in the Clinton and Sleepy Joe responses: aggressive sanctimoniousness, combined with an apparent failure to recognize the full reality of the situation.

Moreover, as far as I can tell, these unsatisfactory responses arise not from faulty political calculation, but rather from genuine mental blind spots on the part of Hillary and Joe, respectively. These mental blind spots pale in comparison to Trump’s grotesque mental failings, but they are still worrisome.

Finally, Chait writes,

So far, Biden’s responses to questioning on his son’s role, which range from challenging his interlocutor to a push-up contest to trailing off awkwardly, have hardly allayed the concern. But it’s difficult to think of a better response, since a true answer is extremely difficult for a politician to communicate. And the true answer is: Yeah, I screwed up, but it’s actually not that big of a deal.

Let me respond this way. First of all, in my experience, people in all walks of life, not just politicians, do not generally relish admitting error. But that said, it’s very important for people with high responsibilities to recognize when they have erred, and to admit their errors, in an appropriate way, at the appropriate time.

And, no, it is not in the least difficult to know the gist of what Biden should say. He should say that his middle-aged son made a serious mistake, that people cannot control all the life decisions made by their middle-aged offspring, but that, still, he should have spoken out to disavow what his son was doing. Failing to do that was a mistake. And, if you want to vote for a perfect candidate who has never made a mistake, then you will just have to vote for someone else.

That’s the substance of how he should respond the next time he’s asked. (And ixnay on the pushup challenge.)

The time after that, he should just say, asked and answered, see my previous response.