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.

From the Sublime to the Ridiculous

Here’s a little thought experiment: What would happen if, by a snap of the fingers, white racism in America were to disappear? It might be that the black and Latino working class would be voting for Trump, too. Then we Democrats would have no chance in 2020. We often tell ourselves: “Oh, we lost just the white working class because of race.” But the truth might be something closer to this: “It’s only because of race that we have any part of the working class turning out for us at all.”

Thus begins an extraordinarily long piece by Thomas Geoghegan, whose day job is that of a labor lawyer in Chicago and whose avocation is social analysis. Here, Geoghegan meditates on rising inequality, the devastation of the working class, and the feckless response of—let’s be frank about this—people like us in proposing remedies to our social and economic divisions.

Send ‘em all to college? Bring ‘em all into the new Knowledge Economy?

For a whole lot of people, that dog just ain’t gonna hunt.

It’s a painful read, but as the man said, no pain, no gain.

And now for something completely different …

Who Are George and Kellyanne When They’re at Home?

Thanks to Hans.

Please Pardon my French, But Each Day and Each Hour the Trump Legal Defense Looks More and More Like a Giant Clusterfuck

clusterfuck

I rest my case on the last few posts.

That said, I make no predictions. Maybe 51 senators will just do the three monkeys routine, vote the acquit, and the whole thing will be over. But I don’t think so.

So, I hope you have laid in an ample supply of beef and popcorn.

While You Wait for Impeachment Day, Here’s Some Musical Entertainment

Trump’s defense puts me in mind of the legal argument advanced in Bob Marley’s “I Shot the Sheriff.” So sit back and listen.

(I shot the sheriff
But I didn’t shoot no deputy, oh no! Oh!
I shot the sheriff
But I didn’t shoot no deputy, ooh, ooh, oo-ooh.)
Yeah! All around in my home town,
They’re tryin’ to track me down;
They say they want to bring me in guilty
For the killing of a deputy,
For the life of a deputy.
But I say:

Oh, now, now. Oh!
(I shot the sheriff.) – the sheriff.
(But I swear it was in self defense.)
Oh, no! (Ooh, ooh, oo-oh) Yeah!
I say: I shot the sheriff – Oh, Lord! –
(And they say it is a capital offence.)
Yeah! (Ooh, ooh, oo-oh) Yeah!

Sheriff John Brown always hated me,
For what, I don’t know:
Every time I plant a seed,
He said kill it before it grow –
He said kill them before they grow.
And so:

Read it in the news:
(I shot the sheriff.) Oh, Lord!
(But I swear it was in self defense.)
Where was the deputy? (Oo-oo-oh)
I say: I shot the sheriff,
But I swear it was in self defense. (Oo-oh) Yeah!

Freedom came my way one day
And I started out of town, yeah!
All of a sudden I saw sheriff John Brown
Aiming to shoot me down,
So I shot – I shot – I shot him down and I say:
If I am guilty I will pay.

(I shot the sheriff,)
But I say (But I didn’t shoot no deputy),
I didn’t shoot no deputy (oh, no-oh), oh no!
(I shot the sheriff.) I did!
But I didn’t shoot no deputy. Oh! (Oo-oo-ooh)

Reflexes had got the better of me
And what is to be must be:
Every day the bucket a-go a well,
One day the bottom a-go drop out,
One day the bottom a-go drop out.
I say:

I – I – I – I shot the sheriff.
Lord, I didn’t shot the deputy. Yeah!
I – I (shot the sheriff) –
But I didn’t shoot no deputy, yeah! No, yeah!

Non, Je Ne Regrette Rien

George (Mr. Kellyanne) Conway, The worst thing about Trump’s answer to the impeachment articles

Bob Bauer, The Trump Impeachment and the Question of Precdent, Part II: The Trouble With Alan Dershowitz’s ‘Constitutional Argument’

Paul Waldman, The White House doubles down on its dumbest impeachment defense

Non, Je Ne Regrette Rien

Some misread the execrable 7-page document some of Trump’s team issued on Saturday as “conceding the facts.” That is wrong, as today’s 109-page (not counting appendices) makes clear. He concedes nothing—though the net effect of Trump’s current legal posture is to make a factual defense what lawyers call a “fallback argument.” His first line of defense is the abstract proposition that there can be no impeachment unless a violation of the United States Code is alleged.

And, may I say, that for the first time, the Monday filing bears a superficial resemblance to an actual legal brief.

It’s just that the world depicted in the defense brief is Neverneverland.

You probably will not be surprised to learn that this is not the first time, in the history of American jurisprudence, that a legal brief has painted an utterly false picture of reality. And, you may be mildly gratified to learn that such efforts generally lead to the client’s being flushed down the crapper.

Demolishing Dershowitz

Mr. Kellyanne Conway, Bob Bauer, and Paul Waldman demolish Dershowitz.

And not only Conway, Bauer, and Waldman. The 1998 Dershowitz demolishes the 2019 Dershowitz. Just click to enjoy.

Here’s a Howdy Doo

Trial Memorandum of President Donald J. Trump

This morning, a portion of the legal defense team—once again missing Starr and Dershowitz—took another whack at the piñata.

The last sentence of the brief, which is to be found on page 109, demands that, and I quote, “The Senate should reject that Articles of Impeachment and acquit the President immediately.”

As surely as God made little green apples, Moscow Mitch would do that very little thing, and he would do it in a New York minute, if he could get away with it. But we have heard from multiple sources that Moscow does not have the votes to acquit, before the Senate hears the arguments of counsel.

Here’s a Howdy Doo

Dear Leader has now forced good ole Moscow into a posture where he can either

  • defy Dear Leader and refuse to call for the vote Dear Leader wants on premature acquittal, or he can
  • call for a vote and see a majority of the United States Senate vote against Dear Leader’s position.

The latter would not be a good look for President Narcissism.

And Here’s Another Howdy Doo

If the vote is called and you are a Republican senator, you can either