HORIST: When is a trial NOT a trial?
The answer to that question is everything you need to know about what is going on in Washington these days. The answer, of course, is when it is an impeachment. The Founders used the word “trial” in the broadest sense. They did not mean for impeachment to be a judicial process or the Senate trial to be like a courtroom trial. They could have had it decided by the Supreme Court instead of the Senate.
Everyone seems to concede that Impeachment is a POLITICAL process – not a judicial process. But once they lay that foundation, they proceed to act as if it IS a judicial process. They describe an impeachment by the House as comparable to an indictment by a grand jury. Nothing could be further from the Truth.
Grand juries – as bad as they might be – are at least a secret process in which a prosecutor’s case is presented to 23 jurors who are randomly selected and vetted for their impartiality. Leaking of grand jury testimony is a serious crime for which people have been prosecuted. Leaking secret impeachment testimony is a matter of common practice.
Grand juries do not cleave along preconceived political loyalties. In addition, grand juries are restrained by the rule-of-law and rules-of-evidence. Jurors are commissioned to determine the presence of a potential crime according to statutes – not pop-opinion.
One only need look to the process that led to the impeachment of President Trump to understand that it takes place outside the limitations and rights of our judicial system. The judicial system protects the process from undue outside influences. The impeachment process relies on them.
In impeachment, Crimes can be alleged that have no basis in statutory law. Unlike grand jurors, those voting on impeachment are deeply planted in partisanship. That is obvious by the outcome of the vote.
Trump was impeached for several reasons. First, because he is of a different political party than the one that controls the House at this time. No president has ever been impeached by a House controlled by his own party. That should tell us something.
Trump was also impeached because it has been a well-established long-time obsession of the Democrats. It is partly based on his more conservative policies – especially those judicial appointments – and his pugnacious personality and – shall we say – libertine character. None of that is impeachable by the standards of the Founders and the subsequent examples of impeachment. Although not a judicial process, impeachment has, in the past, required a statutory crime.
The crimes alleged against Trump are not actual crimes. They would never stand up in a court-of-law. Both Articles of Impeachment – Abuse of Power and Obstructing Congress – are matters of opinion that are usually best settled by the Supreme Court. In this case, House Democrats decided to circumvent the proper process to move forward to a starkly political impeachment.
President Jerry Ford once said that an impeachable offense is anything that a majority of the House of Representatives says it is. While many scholars protest that to be far too cynical, he is correct – and we have seen that being played out for weeks … months.
Now that the issue moves to the Senate for the obligatory “trial,” all those pundits and talking heads are describing the process as if it were a real judicial trial.
The most obvious difference is that the jury is nothing like a courtroom jury. Again, it is the makeup of the jury. In the Senate phase of the impeachment process, the decision-makers are again people with deeply confirmed partisan viewpoints – members of the two major opposing parties. It does not require a crystal ball to predict that the future vote will be largely along partisan lines.
It has been pointed out that the senator-jurors take an oath to be objective. That is broadly interpreted since virtually every senator has a political bias – and a vested interest in the outcome. Some senators say they will remain objective as a doff of the cap to that oath. In reality, we know – and they know – exactly how they are going to vote in the overwhelming majority of the individual cases. We know that Trump will not be removed from office – as no other President has been by Senate trial.
As much as the opposition has tried time and time again to find incriminating evidence to justify removal from office – or to weaken Trump’s re-election candidacy, they have failed. No amount of media bias has done the job. The dubious investigation based on a phony bias and FBI violations has not done the job. The strategically engineered investigation by Special Counsel Robert Mueller did not only NOT do the job, it totally backfired. The scandalous Steele Dossier only revealed the Clinton campaign’s collaboration with Russian operatives.
For the better part of three years, Democrats have promised that some sort of smoking gun was just about to be revealed – if only there was more time and more investigation. So, Democrats jumped off the slippery slope of impeachment – not because they had the evidence – but in hope of finding or concocting it. For the first time in American history, we had an impeachment process in search of presidential misdeeds.
Now we have the trial in the Senate. It is clear that the House will send over a pretty weak and incomplete case. While Democrats and their media pals keep wondering why Republican senators cannot join in their partisan crusade, it is even more curious that no Democrat senators can objectively recognize the shallowness, callousness and weakness of the impeachment voted by the House.
While Democrats will not admit it, they well understand that their colleagues in the House labored mightily and brought forth a gnat. It is the reason they want to continue to investigate in the hope of finding that elusive smoking gun. They want the Senate to call witnesses in the hope that their failed effort can be revived. They are not ready for trial but rather wish to continue the impeachment process.
Sorry Nancy, that is not how it works. The case made by the Democrats in their Articles of Impeachment is the only thing that the Senate need consider. The Senate stands in judgment – not as a continuation of the House process. Put in poker terms, Pelosi and the Democrats are not satisfied with the hand they were dealt – or dealt themselves – and now want a couple of extra cards in hope of improving their hand.
From the very onset of the impeachment inquiry, there has been no doubt that Trump would be impeached by the majority of Democrats in the House — although they did suffer four defections while the GOP suffered none. There seems to be no doubt that the Senate will refuse to remove Trump from office.
So, what in God’s name was all this crap about. Oh yeah … politics.
So, there ‘tis.