Trial Prep Goes into High Gear: Critical Decisions Made
Trial is only days away and major questions must be answered.
The law has a pace all its own. To any outsider, it grinds so slowly as to appear frozen in place at times. Yes, criminal defendants all have a right to a speedy trial, and all but .1% of them waive that right because they want a lawyer with time to prepare. Once one has waived the speedy trial component, criminal trials often take one to two years after first filed.
Impeachment is not a normal criminal proceeding. I am sure it seems to some that it has drawn on far too long. In the impeachment process, the House operates as a grand jury, taking in evidence at its own pace. But once the articles of impeachment get sent to the senate, the process moves at a disconcerting pace, at least for any attorney involved in the case.
Articles of impeachment were filed Thursday.
Briefs on trial matters were filed today – Saturday (filing on Saturday is not unusual in a federal court with a trial upcoming that week, everyone e-files now). I have not read the actual briefing but I suspect most of it addresses the usual topics, procedures used, the structure of the trial, whether or not witnesses should be called, time for arguments, and any legal rulings on relevant evidence beforehand.
It is shocking that even at this late time, we still do not know if this trial will be an actual trial, whether witnesses will be called. I am one who believes that the word trial dictates that witnesses must be called, or there is no trial. Senator “Concerned” herself, Susan Collins of Maine continue to waffle back and forth, which she’ll do as long as possible and then decide to do what Mitch McConnell tells her to do:
WATCH: Sen. Collins says she is "very likely to vote for additional information, but first I want to hear, as I did last time, each side present its case."https://t.co/z2Vsvb0RPL
— MSNBC (@MSNBC) January 18, 2020
The opening brief for Trump sets out the belief that they shouldn’t be dragged through a trial in the first place.
Such a brief violates one of the few trial rules I have. Do not whine on paper. You can whine in court during oral argument, but you do not whine on paper. They whined, per Politico:
President Donald Trump launched his first formal attack on the House’s effort to remove him from office on Saturday, calling the Democrats’ impeachment case against him fatally flawed and “constitutionally invalid” while blasting the effort as a political hit job by his adversaries.
“This is a brazen and unlawful attempt to overturn the results of the 2016 election and interfere with the 2020 election,” Trump’s lawyers argued in a six-page response filed with the Senate just days before the president’s trial begins in earnest, according to sources close to Trump’s legal team.
This is not the way to endear yourself to the court, making desperate arguments, sure to fail, in your opening salvo. I am not even positive to whom the briefs are directed, Justice Roberts? To the Senators writ large? To the House managers? I don’t know.
And here is Politico doing their best “both siderism.”
The allegations raised by Trump’s attorneys — going after both the substance of the impeachment articles and the process Democrats used to get there — mirror the House’s charges against him. Democrats allege the president pressured Ukraine to interfere in the 2020 election on his behalf by launching investigations into his political opponents.
They don’t “mirror” shit that the House has done. The House has done everything by the book, and has evidence of a real crime, despite unprecedented obstruction by the White House.
Meanwhile, I wish someone would tell the Republicans that the fact that Democrats have long wanted to impeach Trump is not technically a defense to the crime he committed. If I spend two years frustrated with my neighbors loud music and chain saw collection decorating his trees, wishing he would get arrested, it does not mean that I have no case against him when he chases me with a chainsaw.
We will not post Political sections past fair-use copyright issues, but Politico notes that the first defense brief highlights procedural irregularities in the House. Those of you who followed along this morning will note that the easy response to this argument is to note that it is highly irregular to have a co-conspirator sitting as the second highest ranking member on the intelligence committee tasked with gathering information. Had Schiff leaned over and asked Nunes if he could borrow his phone, all the evidence likely needed to convict Trump could have been downloaded in twenty seconds.
The president’s side shows some real gumption stating that the bottom line issue in this matter is nothing less than the American citizens right to vote and have their vote count. Awfully rich coming from a guy in trouble because he sought to destroy his primary political opponent a year prior to the election.
Still, it is odd not having all these issues settled a month before trial. This might be the only context in which such weighty questions hang unanswered just days before the trial is to begin.
I am not sure the nation is emotionally prepared to get going on Tuesday. It will be solemn, serious, and infuriating. The Republicans will do all they can to avoid the issue, any issue. They are attempting to get away with murder – almost literally, and they don’t have a case. Thus we can expect the old adage to win the day:
If you have the law: Pound the law.
If you have the facts: Pound the facts.
If you have neither facts nor law: Pound the table.
We have already seen a lot of pounding the table, and it continues today with complaints about the House, and how dare they hold hearings and impeach.
We are in for a lot more.
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