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.