Yes, They’re Hanging Upside Down, Caught in a Very Uncomfortable Place

squirrel balls

Shrinking violet Rahm Emanuel explains How impeachment could flip the Senate. Fun Fact: “Some 63 percent of voters in [swing states] Arizona, Colorado, Maine and North Carolina look unfavorably on the Senate’s decision to date to disallow witnesses and hide documents.”

Irrelevant elderly curmudgeon George Will muses on the theme, There is more utility than futility in the impeachment trial. Along the way, he observes,

The 20 Republican senators seeking reelection this November (incumbents from Kansas, Tennessee and Wyoming are retiring) will face voters after explaining why they voted as they did concerning trial witnesses, and for or against acquittal. Intelligent, public-spirited senators can reasonably disagree about the necessity (or, given the ocean of information that is public and undisputed, the redundancy) of witnesses. And they can differ about the applicability of the two impeachment articles. It will, however, be useful, and probably entertaining, to hear Republican senators’ reasoning.

Meanwhile, former President of the Mitt Romney Fan Club, Jennifer Rubin, sticks her neck out:

Nothing should be taken for granted but Bolton in all likelihood will make an appearance. Whether McConnell will force individual senators to walk the plank to vote against the president’s wishes or whether Republicans will simply agree by acclamation to protect vulnerable members of the herd remains uncertain. Equally uncertain is whether there are 51 votes for witnesses beyond Bolton. Democrats would like to hear from acting chief of staff Mick Mulvaney, Mike Duffey from the Office of Management and Budget and White House aide Robert B. Blair. However, those witnesses may uncover the identities of further witnesses. Most important, with witnesses will come documents Trump had ordered withheld from Congress.

Republicans have no witnesses who can corroborate their thin arguments, none of which really contradict the House’s case. They keep threatening to call former vice president Joe Biden, but given how he is lapping up the admissions from Republicans that this is all about smearing him, Republicans might want to reconsider. Biden even made an ad out of one senator’s confession that Republicans were hoping the trial damaged Biden.

Just a Couple ‘o Thoughts

I have no idea whether Ms. Rubin’s cheerful prognostications will come to pass. This morning the talking heads on the teevee were saying that Moscow Mitch has something up his sleeve when he claims that he doesn’t yet have the votes to block witnesses and summarily acquit. But if he’s lying, they didn’t explain why, at this particular time, he’s telling that particular lie.

Assuming it is a lie, and not the literal truth.

Sometimes, as Freud may or may not have said, a cigar is only a cigar.

Sometimes, when you think you’re seeing a squirrel with his nuts caught in a garden pole, what you are in fact seeing is a squirrel with his nuts caught in a garden pole.

“Do You Predict There Will Be Any Witnesses?” She Asked

Witness for the Prosecution

A friend at the progressive table asked, “Do you think there’s a ghost of a chance there will be any witnesses in the Senate trial?”

My response surprised her. I responded that it depends on what Trump argues in defense.

If he and his legal team are smart, they will assiduously avoid nit-picking the facts. Instead, the question they will pose to the Senate and to the country will be: Why should Trump be impeached when almost all of the bad acts (or what we imagine to be the bad acts) of his predecessors didn’t result in impeachment?

The defense team, if it is sound in its thinking, will not defend Trump and it will not prosecute Hunter Biden. It will instead dwell ad nauseum on the alleged faults of Barack Obama, Bill Clinton, Jimmy Carter, and you name it.

A defense along those lines would at least tacitly admit the Democrats’ central narrative. Maybe even explicitly admit it, or some of it.

If the facts are not in dispute, there is no need for witnesses, because everyone agrees on the relevant facts. So just vote to acquit or convict and remove from office.

If, on the other hand, the defense team tries to dispute the relevant facts, then the pressure on Republicans ratchets up even more.

Assuming a defense that purports to be based on the relevant facts of the case, I think there’s maybe a 60 to 70 percent chance that witnesses like John Bolton will testify.

Republicans for the Rule of Law Have a Few Choice Words

As a matter of policy, I tend to stay away from stories and opinion pieces about things that may or may not happen. That said, Jennifer Rubin may well prove to be right when she observes that Nancy Pelosi may yet have the last laugh.

As I said yesterday, it really stinks to argue that the House’s factual case is “too indirect” and “too circumstantial”—and then vote to block the witnesses with direct knowledge from testifying. You can fool all of the people some of the time, and you can fool some of the people all of the time, but even those you can fool pretty much all of the time have their limits, and if you sling enough bullshit for a long enough time, you will find out what those limits are. That’s the point we’re at now.

“What about Executive Privilege?” Asks a Friend from the Progressive Table at Happy Acres

“Can’t Trump just order Bolton not to testify?” she asks.

Yes, he can do that very thing. And he can also order Bolton to jump off the Brooklyn Bridge or to douse himself with gasoline and light a match.

But Bolton does not have to obey the order.

The legal analysis goes like this. There is case law telling us that conversations between a president and his close aides, about policy, are protected from disclosure by the doctrine of executive privilege. Bolton was a close aide. The matters about which he will testify concern policy. So executive privilege presumptively applies.

But legal privileges against disclosure may be waived, and Trump may already have waived this one—by disclosing some of the evidence but trying to hide the rest of it. And legal privileges do not protect conversations intended to implement ongoing crime or fraud. (And do remember that Bolton called Ukrainegate “Giuliani’s drug deal.”)

How Could Trump Try to Use Executive Privilege to Block Bolton’s Testimony?

The lawyer-client privilege belongs to the client, not the lawyer, and the executive privilege belongs to the executive, not the aide.

I assume that, if we get to the point where Bolton actually takes the stand in the Senate, then Trump’s defense lawyers will try to assert executive privilege pretty much after every question. I assume that Chief Justice Roberts would initially rule on whether Bolton must answer the question, but that ruling is subject to the views of a majority of the Senate. So if some of the Republicans want to play that game, there could be lots and lots of votes.

Could Trump Assert the Executive Privilege in Court to Prevent Bolton from Testifying in the Senate?

He could always try. There are multiple reasons to think he would not get very far. But we are sailing into uncharted waters, here.

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.

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.

Defenseless

Defemse

Renato Mariotti, The President Has No Defense: After the Ukrainian envoy’s bombshell testimony, the best Trump can hope for is mercy.

Mr. Mariotti is a former federal prosecutor. His observations are not strikingly original, but nevertheless merit attention—at least attention by me, because they are very much in line with what I have written. Mariotti writes, in part,

If I were one of the president’s lawyers, I would counsel him to admit the obvious—essentially to plead guilty and admit this was, in fact, a quid pro quo—and try and convince Congress and the public that it is not as bad as it looks. In my experience, defendants who stubbornly try to deny the obvious in the face of overwhelming evidence rarely convince anyone. 

Pompeo has a lot of explaining to do. When interviewed on Sunday by George Stephanopoulos, Pompeo looked like a deer in the headlights, awkwardly pausing and refusing to answer fundamental questions about his role. Pompeo argues executive privilege, and it’s unlikely a court battle to compel his testimony would be resolved quickly, but pressure could mount for his testimony as the impeachment inquiry advances. Unlike some others in Trump’s inner circle, Pompeo has future political aspirations and reportedly has weighed a run for U.S. Senate in Kansas. He can’t afford to be Trump’s fall guy.

Neither can Sondland, who in his prior testimony didn’t display the defiance and disdain that characterized the Congressional testimony of Trump allies like former campaign manager Corey Lewandowski. Taylor’s testimony was full of damaging details about Sondland, like his insistence that calls with Zelensky were not transcribed. In Taylor’s account, Sondland comes off like someone trying to hide conduct that he knew was wrongful.He will have difficulty explaining why our nation’s envoy to Ukraine was not permitted to read the transcript of Zelensky’s call with Trump until it was released publicly two months after the fact.

It is clear from Taylor’s testimony that more is to come. A smart defense team would get ahead of this by admitting that there was a quid pro quo, falling back to the argument advanced by some on the right like Tucker Carlson—that the conduct was wrong but that impeachment is too severe of a remedy.

If Republicans quickly admitted what Trump did but insisted that they wanted the American people to decide Trump’s fate in [November], they might reduce the damage and move past this episode, assuming they had the votes in the U.S. Senate to prevent conviction. If Trump refuses to allow them to adopt that strategy, he becomes Republicans’ own worst enemy. Because if Taylor’s testimony is any guide, they will reach that point eventually, and the road getting there will be rocky for the administration. [emphasis added]

That’s Thinking One Step Ahead in the Chess Game. What About a Couple of Steps More?

There’s going to be a trial in the Senate.

Who on God’s green earth is going to be lead counsel for the defense—charged with putting on a coherent case that a third grader of modest intelligence might possibly believe?

And who will Trump’s witnesses be? Giuliani? Mulvaney? Sondland? Pompeo?

A Really Big Shew

As Ed Sullivan used to say, it’s going to be a really big shew.