Several Republican Senators hedged their votes to acquit the president because they believed there was “reasonable doubt” regarding the facts in the case. Okay, that’s how trials work. The impeachment was a trial, and everybody knows that it’s wrong to convict somebody without a consensus. A criminal conviction requires a unanimous vote; civil trials a majority vote; impeachment trials half-way in between, a supermajority vote (2/3rds).
Criminal jury trials are “hung” if even one juror doesn’t vote to convict. However, as we’ve seen in many TV and movie dramas over the years, dating back to Hoss Cartwright on Bonanza, that one hold-out must defend his views against the other eleven jurors. Do you need more evidence? The judge will make a ruling to get it for you. You want to ask questions to one of the witnesses? The judge will do that, too.
Observe here: jurors can ask for more information, and judges almost always agree to get it for them. Why? Because trial juries are very expensive, and to declare a mistrial means that all that money is wasted. Not to say it’s okay to convict somebody if only eleven jurors find evidence of guilt, just to give the eleven a chance to convince the twelfth person in a consensus they’re comfortable with .
What do you see in that stuffy jury room? You see face-to-face discussions by regular people, grappling with the fate of a fellow human being. Sequestering them in a room together isolates them from all outside influences and gives them the space to get in contact with their conscience and to sort out their reasoning out loud.
We not only didn’t see any trial-jury kind of back-and-forth in Trump’s impeachment (lawyers standing up to object to statements by the opposition, rulings by the judge on admissibility, and the hundred other fascinating aspects of your average TV trial), we didn’t see any discussion whatsoever between the jurors. All we saw was individual Senators stating their standard boilerplate position in front of TV cameras.
Watching MSNBC, one of the moderators before the final “debate over calling witnesses,” said that the lawyers would be out of the picture for the next six hours of open debate. I was expecting a UK House of Commons knock-down-drag-out rumble in the Senate. The kind of raucous discussion that happens behind closed doors when a jury is deliberating the merits of a troubling case.
No such luck.
All we got was more speeches by the House managers and the lawyers for the defense. How did that happen? Who made the stupid rules that prevent us from seeing both sides actually confront, up-front, and personal, the issues central to the opposite point of view?
I was very disappointed. As much as I fundamentally support the House manager’s position, I do acknowledge the Republican’s case. I don’t care if the Senators had all long since made up their minds (which is wrong, but I get it). I wanted a chance to make up my own mind once and for all. How dare they not give me that chance. How dare they make me write this whole damn stupid manuscript just to try and sort out fact from fiction from outright fabrication.
Yes, I know – it wasn’t a legal tribunal. It was political. Since when does political mean carved-in-stone, frozen-in-steel-reinforced concrete obstinance?
Be that as it may, you’ve hopefully noticed how my (reasonably accurate) recounting of the facts shows a strong House case but also nagging doubts at the fringes that address this whole, aggravating “reasonable doubt” thing. It’s the old Perry Mason defense: pose several alternative explanations (or even dress up third parties to obfuscate a witness’s memory of events) to give the jury just enough cause for doubt. Maybe I’m spoiled rotten, but Perry Mason always rooted out the guilty party. I want to know who was right and who was wrong. Dammit.
If you want the truth, you have to nix all the distractions. Engineers are good at that sort of thing. I can do this. I know I can.
People are pretty savvy to all your garden variety courtroom distractions. We weren’t fooled when Trump’s lawyers claimed “abuse of power” had to be a crime to convict, or that it’s “clearly obvious” that Joe and Hunter Biden were crooked, corrupt gangsters. We can discern politics from the facts.
The one distraction that set new heights in legal malfeasance was the repeated lies made by the president’s lawyers about the House hearings last fall. “We weren’t allowed to have our lawyers present (lie). We couldn’t call our own witnessed (lie). All Republicans were banned from the House hearings (lie). All the hearings were held behind closed doors in the basement of the House (lie). We were totally blocked out of the entire House hearings (lie). Because we couldn’t participate, it renders the entire impeachment vote by the House moot (lie).”
In my conscience of conscience, I gave them the benefit of the doubt – until I tuned in to Fox News a week after Trump was acquitted – only to hear an esteemed legal expert repeating the same damn lies. That’s just so wrong. That’s not journalism. That’s propaganda, and Fox News damn well knows it.
Patrick Philbin reiterated the above “litany of lies” a dozen times. Wasn’t this idiot lawyer listening when the House managers patiently explained the House investigation process? Didn’t he even watch his own God damn video clips, showing Republicans asking questions in the public hearings?
Why did he Patrick Philbin that? What possible legal strategy does this represent, lying constantly in broad daylight, with the Chief Justice sitting behind you (lending his silent credence to the whole bloody charade – is that why he did it)?
First of all: could they even do this, as lawyers, as “officers of the court?” The reason why none of the President’s lawyers participated in the House hearings (asking questions, defending witnesses, fighting subpoenas, declaring executive privilege rights, calling witnesses to present their case) is that having done so, they would thereby be “fact witnesses.” Which means, having physically been present in the House hearings, they would none of them then be able to cite this rank “litany of lies” in the Senate.
I mean, really? Doesn’t watching it all on TV make you into a fact witness (you know damn well they followed everything)? Reading all the House documents? Preparing and signing (Cipollone, as chief White House counsel) the 8-page document that declared war on Congress, refusing to cooperate at any level with the House investigation, to the point of promising retaliation by holding hostage the entire business of the government?
Obviously, there was nothing legal with all these outright, obvious lies, or they wouldn’t have said them – a dozen or more times, no less. At a minimum, it was a very borderline-ethical thing to do – was it worth the risk? Why did they even do it?
I think this was a new “reasonable doubt” defense. Now all you need to do in order to shade obvious facts with “reasonable doubt” is to say over and over again that they were lies. Lies. God damn lies. Political lies. Malicious falsehoods. All lies. Lies!
Imagine yourself sitting on a jury. The prosecution has just presented a very fact-based case against the accused. Documents, video, the whole shebang. Then the defense comes out and calls them all lies. Vicious lies. Slanderous lies. Mean-spirited lies. The defense lawyer offers zero new evidence to contradict the prosecution’s case, just repeated assertions: lies, dammit – lies!
As a blue-collar juror sitting on, say, a white-collar case – would this legal maneuver create a smidgeon of doubt in your head? OMG. He’s a lawyer. Lawyers have ethics and rules about lying in open court – surely, he can’t do that unless he has proof. Maybe the proof can’t be presented in court. But he sure must have some kind of damning proof because he sure did speak with some kinda righteous conviction.
That’s why jurors deliberate in secret. “Chill, dude. That Fleet Street lawyer in the $10,000 pinstripe suit is gaslighting you.”
“Gaslighting? What’s that.”
“Man, what cave have you been hiding in all your bitten life?”
That’s why prosecutors like to have engineers inside that jury room. We struggle every day to make things work despite a ton of contradictory evidence. We know lies when we see them, have the faculty to show them as such, and the ability to explain all of this carefully and patiently. We abhor politics and political correctness because any kind of preconception can literally be dangerous in engineering.
Any self-respecting judge would give explicit instructions to the jury before they go into discussions, to disregard all the aforementioned allegations of lies. “Focus on the facts. Make your decision based on facts.”
The judge can even call a substitute juror to replace anybody who is so focused on the lies part, to keep from hanging a jury. “There’s no place in law for politics.”
Then the president’s lawyer Jay Sekulow had the unmitigated gall to describe John Bolton’s book, “unverified information from a leaked source for a manuscript written by a vengeful, fired ex-government employee? I call that inadmissible.”
Great drama. Solid legal argument. It doesn’t mean a damn thing if you’ve spent half of your time refuting established, legal, bipartisan procedures in the U.S. House of Representatives as lies. Effing lies.
Good try. Bad optics. Might float with some people. Not me.
How do I close this chapter? All of this “closing of the American mind” evidence for both sides harkens me back to my early days as a consulting engineer. If you think there aren’t legal issues in engineering – wrong! One of the four principals of my firm was an attorney. He wasn’t just there for show, either.
Anyway, the firm’s liability insurance carrier set up all us practicing engineers with an educational seminar every year, to try and keep us out of trouble. What is the one thing you can do to avoid litigation? “Talk to them.” If you have any sort of issue that might be legal with a client, “talk to them.” The one thing you can do to for sure invite litigation is to shut them off.
Great advice. If you run into issues, talk it out – find out what the problem is, ask your valued client what you could do to make things right – and do it! There’s nothing more damaging to your reputation, nothing more expensive to the bottom line, nothing more stressful than god damn litigation.
Impeachment is a very bad situation. Who cares how it got started or who made it happen and how – that’s all past history once it reaches a trial in the United States Senate. If you want to reach an amicable end, “talk to them.” Don’t talk to the media. Don’t talk to your base. Talk to the enemy, your opponents across the aisle.
Going by my “Golden Rule,” neither side talked. Ergo, neither side really wanted a resolution. And yet. You could see Democrats and Republicans chatting on break, inside the Senate chambers. Even the attorneys from the closing sides had friendly words. They lined up and walked into the State of the Union address a few days later, as is traditional, striding into the House of Representatives in a double-file, side-by-side down the line, Republican and Democrat – just chatting away, friendly as can be.
Why couldn’t they discuss the issues behind doors like a jury – like the lifelong friends and associates they all are? We know they discussed how to dig into their respective positions inside their caucuses, held repeatedly during the impeachment (presumably how to give a consistent message to the media).
Why didn’t they meet as a group behind closed doors to have a real debate? Because President Trump wouldn’t allow them. We all know that Mitch McConnell, the Leader of the Senate, acted exclusively and at all times on nothing but Trump’s orders. Anything out of the ordinary that came up and – boom! -there was Leader McConnell on his cellphone with Trump.
“Trump’s Rules” set up by McConnell and enforced on the Republican caucus (and from there obligated upon the Senate as a whole): no closed-door sessions. I want to see what everybody says. I want to be able to retaliate. Resistance is futile. “I’ll put your head on a pike.”
Contempt of Congress.