17 Takes (& Counting) on the Impeachment Hearings




Or at least you should be.

I’ll be adding to this list as more things occur to me, but here are 17 thoughts occurring to me at this point while listening to the Senate’s impeachment fight.

The Process Arguments

  1. “In an election year!”  Let’s get real about the howling that this is all happening in an election year, while it shouldn’t.  The President’s offensive actions occurred in the run-up to an election year, and dealt with matters related to the upcoming election.  It’s not the Democrats’ fault that this proceeding is happening in an election year — it’s literally the only time they can bring it.  Is it disruptive of the election?  Yes, but if the charges are not meritless — and they aren’t — then that timing is the President’s fault.
  2. Why speed through it?  Fairness!  If Trump is removed from office, Republicans have to choose a new candidate.  Democrats have had to get through as quickly as possible — and remember that Pelosi’s 33-day delay to pressure McConnell to call witnesses (the wisdom of which is now apparent) was over the holidays, and so took up only five Senate business days.  If they didn’t wait to complete every task they would have wanted to, it’s because had they waited the Republicans would have attacked the effort as emerging too late to allow a fair election.  (Which of course they’re doing anyway.)
  3. It’s not “overturning an election.”  Voters elected Pence as well, to cover a situation in which Trump could not serve in office.  And if it were “overturning an election,” all of those judicial appointments would go away — which they won’t.
  4. Trump’s lawyers think that there should be a “party veto.”  Yes, impeachment should be bipartisan if possible, but it is acceptable if it is compelling enough so that it would be bipartisan if the other party were not intent on blocking it regardless of its merit.  That is the situation that we have here.  (It would not be possible to get complete party unity for a meritless position within the Democratic Party, which is much more ideologically diverse than Republicans.  Conservative Dems increase their cred by defecting; in contrast, liberal Republicans get blackballed.)  There is no constitutional requirement that either party get a veto over an impeachment started by the other — and given that the opposition may be in bad faith, there shouldn’t be.

    High Crimes and Misdemeanors

  5. Inchoate offenses: The President is most clearly guilty of an actual crime in the form of what are called “inchoate offenses” — such as attempt and solicitation of crimes.  If you want a real crime that the Founders would recognize, go with “Attempted Extortion” and, only slightly less clearly, “Solicitation of a Bribe.”  The punishment for attempt or solicitation of a crime is exactly the same as the punishment for the underlying crime.  But you don’t need a real crime.
  6. Charging a crime: Given how they’ve proceeded with this, Democrats should have charged crimes anyway.  It’s a lot easier for people to understand, and this for Senators trying not to run afoul of voter to support.  While Trumps guilt on attempted extortion and solicitation of a bribe can still be argued, it’s leads to judgments of fact on the lines of whether President Zelensky felt pressure to comply and whether a ready-made sound bite to use in ads attacking Biden — which he cared enough to solicit — is a “thing of value.”  That’s much firmer ground to be fighting on than the sort of technical chatter what you see here.
  7. “Information” may not categorically be a “thing of value,” but solicited information obviously is.  The notion presented on Thursday that information is not valuable, when it has been solicited, is silly.
  8. Witness tampering — especially of Zelensky.  Trump’s own established demeanor is — unfortunately him — relevant to questions related to coercion, duress, and outright tampering with witnesses.  Another President may have been able to get away with asking Zelensky to investigate Burisma, and whether the former prosecutor was honestly trying to suss out the truth or trying to bury it, without conveying the sense that he was putting Zelensky under duress.  Trump can’t, because gaining and exerting leverage is his game.  Zelensky, EVEN NOW, has to worry that if he admits that Trump was trying to pressure him (even if he believed that he was completely immune from such influence, which he pretty obviously was not), Trump will punish his country out of pique at him and people in his country will die as a result, along with his country being dismembered.  The evidence shows that Zelensky was under pressure from Trump, and that he could not and still cannot stand up against him as a witness.  THAT IS WHERE YOU SEE THE EXTORTION.  Zelensky cannot and should not be called to testify, but it’s no slam on him to recognize that as the head of his country he simply cannot say out loud what he clearly knows to be true.  That’s common with cases of witness tampering.

    Violations of Trust

  9. The real problem is that our Chief Executive violated fiduciary rules:  Let’s face it, please: the major violation by Trump was that he is in a position of trust (as Hamilton wrote) as the Chief Executive (tantamount to Chief Executive Officer) of the nation, and he violated that trust by attempting to extort an ally we have promised to protect (in exchange for their giving up their nukes) into giving him a bribe (a soundbite for his reelection campaign.)  In doing so, he acted to the detriment of the nation and to the benefit of our adversary, Russia, who is in a hot war (i.e., shots being fired, tanks rolling, territory invaded) with our ally.
  10. How can we keep this sort of charge from expanding in scope?  This is a good question, but once we define the President’s offense as a breach of public trust, we have all sort of rules we can borrow to analyze it.  One of the most useful might be one for a breach of private trust — the Business Judgment Rule — which suggests the latitude that corporate officers and directors have in performing their jobs, including what sorts of decisions can and cannot be challenged as a breach of fiduciary duty.  (Hint: self-serving actions to the detriment of the benefit of the corporation are bad.)  We could adopt the well-worked principles of the BJR to constrain the sorts of charges that can be brought against our nation’s President and Chief Executive Officer.
  11. The Northern Cone argument is better than Democrats admit — but still not good enough.  Yes, the President can legally withhold (at least to some extent) duly appropriated money from Guatemala et al. to induce them to stanch the flow of immigration.  And more importantly, he can do so even if he knows that doing so it to his political advantage — leads to emphasis on his position on his signature issue.  BUT, he can’t do so in order to obtain cooperation from them that is intended primarily for a campaign talking point and attack ad .  That is when it crosses the line into a political contribution.  This is a closer call than I realized it was — Nixon going to China is probably the best example of “mixed motivation,” though I don’t think I’ve heard it raised, and it was clearly justifiable even if it was intended in part to justify his reelection — but there’s still a legitimate line to be drawn.  Nixon’s China trip and Trump’s squeezing the Northern Cone were both legitimate strategic choices in foreign policy; they were legitimate because they were significant in themselves.  What Trump did in Ukraine was not motivated by foreign policy concerns, but by selfish concerns clearly tied to his campaign.

    Looking Backwards

  12. Dems erred by overly protecting their moderates and frosh:  If this removal trial goes south, it will be because Democrats were not aggressive enough — in charging crimes, and in at least bringing up an omnibus count comprising all of the instances of collusion (not conspiracy, collusion) found in the Mueller Report.  They needed to turn around the Republican narrative of that report — and instead they have left it as a weapon for Republicans.  They should have charged crimes because they were there.  But this, the thinking goes, would lead to hard votes on the part of frosh like Gil Cisneros, Katie Porter, Harley Rouda, and Mike Levin (among others.)  They could have survived those hard votes better than they can survive a weak case.
  13. And, now, Dems are making the same sort of mistake in protecting the Bidens.  If this had been John Kerry or Walter Mondale, they wouldn’t be blocking everything.  Its because it’s a leading candidate for President, one popular with the party’s centrist wing, that they are. Unfortunately, the argument that he has nothing to do with Trump’s actions is about the least compelling part of his case.  It’s probably true, but it’s not obviously true: it is a question of fact.

    Looking Forward

  14. A “mistrial” right now might be perfect!  Lawyers for the President have argued that if someone tried to substitute a new crime into the charges at this point in proceedings it would lead to a mistrial.  That analogy is not apt — but if Republicans think it is than a mistrial might be apt.  Send it back to the Democrats with instructions to produce specific offenses to be argued.  There’s no actual need for this, but it’s probably what would happen anyway.
  15. Hunter Biden should testify.  And if it were Jane Sanders, or Elizabeth Warren’s kid, they would be obliged to testify too.  If Trump wants to get into a nepotism argument with Democrats, bring it on.  Trump’s defense is that he really believed that the Bidens were involved in a significant crime and cover-up and that that’s why he needed this investigation from Ukraine — enough to distance himself from them during a hot war with an adversary.  Right now, this is being asserted by his counsel without proof; it should be taken seriously enough that it would requite Hunter Biden to say what we did and didn’t do, and with what sort of understanding.  If it’s clear that Trump could not have reasonably held this suspicion, that hurts his case.
  16. Donald Trump Should Be Deposed.  This is, at base, now a trial about a fact.  That fact is whether Trump truly thought that, when he extorted Zelensky into agreeing to announce investigations into Burisma and Crowdstrike, he truly and honestly believed that this was called for as a matter of national interest — as opposed to merely private interest, including the private interest of electing him.  (A secondary consideration is whether, if true, those beliefs were reasonable enough to satisfy rules applying to fiduciaries.  That’s the defense — and 7 lawyers saying that that could be true, or asserting that it is true without evidence, means nothing.  If that is the defense he has to mount it himself and endure cross-examination about his account of it.  Trump’s credibility is at issue here.  The Senate is sitting as a finder of fact: they have to judge Trump’s credibility, and that means that they have to hear from Trump, because without that his defense is mere supposition.

    A Final Note

  17. What if it were Utah?  I think that it was Senator Pat Leahy who yesterday asked a version  the question that I had previously posted in my post on “What if It Had Been Utah?” — essentially, what if the President had used this sort of pressure domestically, on a state of municipal government.  I was so excited!  Then Hakeem Jeffries’s response was almost entirely obliterated by the NPR station I was listening to, which decided to break away from the hearings at exactly that moment.  If anyone can fill me on on what he said, I’d appreciate it!

About Greg Diamond

Somewhat verbose attorney, semi-disabled and semi-retired, residing in northwest Brea. Occasionally ran for office against jerks who otherwise would have gonr unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.) His daughter is a professional campaign treasurer. He doesn't usually know whom she and her firm represent. Whether they do so never influences his endorsements or coverage. (He does have his own strong opinions.) But when he does check campaign finance forms, he is often happily surprised to learn that good candidates he respects often DO hire her firm. (Maybe bad ones are scared off by his relationship with her, but they needn't be.)