A Viewer’s Guide to the Impeachment Trial; the Jack McCoy Model (By Vassar Bushmills)

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To understand this impeachment process, think “Law and Order”, since most of you got your criminal trial education from that television series. I postponed this brief explanation until I’d seen Day One to gauge how the process might actually play out.

I’ve been involved in several criminal trials, but always as the defendant’s counsel. Or that “guilty son of a bitch’s” lawyer, since 90% of all crimes charged are pled just to avoid the wrath of that jury and trial judge, who, despite all that “presumption of innocence” stuff most juries are supposed to believe about the defendant, they still give the edge to the prosecution.

This is a political trial, so is a little different. America has only had three in over 200 years, while the USSR under Stalin would have had more on any given Wednesday before lunch. The historical sense of the American Senate, our jury here, is strongly the innocence in the accused since all three institutions, House, Senate and Executive, are on trial here. Andrew Johnson in 1868 committed no crime other than refusing what the Republican Senate had ordered him to do by refusing to punish the former Confederate states. He won by one vote. Bill Clinton committed some real crimes, but some were so tawdry and salacious the Senate Jury, in 1999 didn’t want to air that kind of laundry out by allowing testimony, as it would generally smell up the Senate, and considered other charges against Clinton (perjury) to have occurred before he entered the White House, therefore, not their turf.

This is the strong presumption of innocence the House prosecution must do its utmost to overcome. And why these arguments about calling new witnesses are so important. (See my short note on Witnesses, below.)

Ordinarily, when a trial begins all the motions have been take care of outside the hearing of the jury, before it has been seated.

The first thing the lawyers do is make an opening statement to the jury about what they intend to prove or disprove. The prosecution always goes first, and as you often see Jack McCoy do, he lays out the evidence he intends to prove. He may make a comment about motive (intent) and the elements of proof, usually under 30 minutes, just brief and concise enough for the jury to get a picture of what to look for. He won’t be quite as long as Adam Schiff was on opening night, before the Senate.

Then the defense stands up, and addresses the jury by saying “Don’t believe a word my friend and esteemed colleague, Jack said. “He ain’t got jack.” Then they will set out their defense theory of the case, and list all the weakness of the evidence against their client, the President.

This was ably presented by Pat Cipollone and Jay Sekulow, not only as to the insufficiency of “evidence” found in the indictment, but the legal argument against the prosecutors being able to bring in new evidence at this trial.

About Witnesses and new evidence on the day of trial; even in Jack McCoy’s court in New York, neither party are allowed surprise witnesses or new evidence. Full disclosure and time to prepare is required, and the trial judge can either deny it outright, or postpone the trial until all the discovery has been made. This could be days or weeks, and upsets everyone’s calendar. So, as a rule this generally pisses judges off, even liberal judges, as it’s a personal insult to them for prosecutors to come to trial unprepared. If you’ve watched “Law and Order” you know this, a lot of cranky judges.

That’s where the First Day (Jan 21) left off and Day Two will take up, listing, then voting to table over 50 motions to allow new evidence and witnesses by the prosecution, most of which (I fell asleep) they had previously decided not to pursue (for whatever reason) or present to their grand jury (where the defendant had no rights to counsel) weeks earlier.

Note: Since there is no real judge, there is no one who can compel them to answer why they were remiss in nailing down this serious part of their own case.

The power of the prosecution is so great that someone once said “You could indict a ham sandwich” with a grand jury…which the Democrats have shown they are perfectly willing to do. Seeing the weakness of their case in the cold light of evidence, they are now trying to rely on the good will (actually craven cowardice) of just a few (4) members of the Jury to allow them to bring in all this new “evidence” to buttress their case which they could have developed and brought to light weeks ago but chose not to at the time.

(I use the term “evidence” loosely here, but in an impeachment trial there is no process for a judge to rule on the admissibility of evidence based on standard trial rules, such as relevance, hearsay, or opinion. It is the job of the defense lawyer to argue to the Jury that a piece of gossip is not evidence, or that an unnamed, unseen and unheard whistleblower is not even a person, much less a reliable fact-witness.)

(I can also tell you that not even a corrupt Oregon trial judge would allow a prosecutor such liberties— in part because any conviction would be appealed, and that trial judge, state or federal, would risk being held up to ridicule and censure from judges higher in rank.)

This 2-3 day period of making arguments about new evidence is where the Senate impeachment trial and the world of Jack McCoy diverge. A trial judge would already had filed a complaint against him, and probably asked Adam Schiff (the DA Adam Schiff of TV) to replace him.

The Senate, all 100, should be justifiably outraged at being put in this spot by Nancy Pelosi and such lowbrows as the California Adam Schiff and the New York Jerold Nadler. Every senator should know that once such a precedence has been established it could be made subservient to the junior chamber, much as some wealthy Manhattan parents become to their bratty, spoiled children. I saw that episode on “Law and Order”.

The rest of the trial

If the new evidence motion is denied, then, the remainder of the trial should move in an orderly fashion where all the evidence the prosecution has gathered during it inquiries will be presented, and a type of cross examination by the defense team of that evidence will occur, just like on TV, and America (and most of the Senate) will be able to go back to sleep, while some very sharp barbs are being exchanged in the well, actually impressing no one outside of earshot. The President’s defense teams has some expert witnesses which should be entertaining, especially if the Prosecution chooses to cross examine them.

Then the Senate will vote.

And the American voters will likely not budge and inch.

Amen.

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