Two Helpful Hints on Winning Trial Strategies, Both Involving the Hee Haw Test

I feel a need to begin by defending the effort to think reasonably in this unreasonable age.

I didn’t watch the impeachment today. I was down at the car place, waiting in the sitting room while they were working over the old buggy. The teevee was tuned to something other than politics—probably a good thing, all things considered. So I treated myself to the first part of Jill Lepore’s book, These Truths, wherein the author scours American history for a reliable answer to the question, Are humans capable of rational self-government, or are they forever doomed to rule by autocrats?

I look forward to learning her final answer, but in the meantime, I still see a role for reason and analytical thinking. And so, with that thought in mind, I would like to offer

Two Helpful Hints on a Winning Trial Strategy

Helpful Hint Number One

Where the facts and the applicable rules of law and sound public policy show that your adversary is guilty as sin, force the other side to try to defend itself by relying on an absurd abstract legal/policy argument—an argument so ridiculous that it fails the Hee Haw Test.

Thus far, we are in good shape on this account.

Jonathan Turley, Where the Trump defense goes too far

The House Republicans’ expert witness on constitutional law lays out how Alan Dershowitz has his head wedged deeply within his ass:

It is a view that is at odds with history and the purpose of the Constitution. While Framers did not want terms such as “maladministration” in the standard as dangerously too broad, they often spoke of impeachable conduct in noncriminal terms, such as Justice Joseph Story referring to “public wrongs,” “great offenses against the Constitution” or acts of “malfeasance or abuse of office.” Alexander Hamilton spoke of impeachment trials as addressing “the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” …

In this impeachment, the House has decided to go forward on the narrowest articles with the thinnest record of a presidential impeachment in history. However, many senators may be legitimately leery of buying what the White House is selling with its categorical approach [to the abstract question of what is impeachable conduct]. There is a vast array of harmful and corrupt acts that a president can commit outside of the criminal code.

Also putting the lie to current Trumpian constitutional analysis: none other than William P. Barr, his very own self:

Charlie Savage, Barr Once Contradicted Trump’s Claim That Abuse of Power Is Not Impeachable: In a memo for the Trump team during the Russia investigation, the attorney general wrote that presidents who misuse their authority are subject to impeachment.

Helpful Hint Number Two

Do not, yourself, in the heat of overzealous advocacy, adopt an argument that also flunks the Hee Haw Test.

Such an unwise argument would be the claim that Congress, not the judiciary, is the body with the sole power to decide claims of executive privilege, in the face of alleged executive misconduct.

Or the claim that the President may be impeached for a non-frivolous legal claim of executive privilege.

I have detected, among some on our side, the overtures to argumentation along these lines. But I believe Shifty Schiff and his merry band of brethren and sistern are smart enough not to go down that rabbithole.

Yes, the courts do indeed have the power to umpire claims of executive privilege. And no, the assertion of non-frivolous claims in court should not be the basis for impeachment—however much you may understand the claims to be “dilatory” and made “in bad faith.”

The crucial point here is that Trump declared, and then acted on, an intent to oppose any and all oversight, whether or not he had non-frivolous arguments against congressional inquiry.

The defense would love to have a big frigging argument about something other  than what happened in in this case. It is a time-honored gambit. It’s one I faced in the last big case of my legal career. Took us a while to whup ’em, but whup ’em, we did.


I see that I have some Ukrainian readership this evening. Hang in there, guys.