January 31, 2020

The Truth, The Whole Truth, And Nothing but The Truth: We Jest of Course.

by Hal Gershowitz

Comments Below

Given the different interpretations offered by the Democrats and the Republicans of what hijinks President Trump had been up to in his dealings with Ukraine President Zelensky, one might assume that any additional witnesses or documents that might clear up the confusion would be welcomed by both sides in the big-tent extravaganza billed as the Impeachment of President Donald J. Trump.

Yes, we jest. The Republicans certainly have no interest in clearing up any confusion in the Senate trial of the President. If they did, they would offer all of the exculpatory witnesses and documents they have. The problem is, they don’t seem to have anything exculpatory to offer that isn’t itself readily impeachable by credible witnesses or documents.

So, of the thirteen federal officers who have been impeached and then tried by the United States Senate, we now have one, for whom no witnesses or documents were allowed to be introduced into evidence in the upper chamber’s deliberations. This has become a national civics lesson that has taught all of the wrong lessons.

Yes, yes, we know President Trump has been hounded and harassed ever since his election. So have many other Presidents. President Harry Truman called the press “worse than prostitutes,” but he also advised high-profile public officials to stay out of the kitchen if they couldn’t stand the heat.

Now, as these essays have opined repeatedly, the decision of the House Democrats to pursue the impeachment of President Trump was highly questionable from the outset—not because the charges were not credible, but because they were destined to fail, assuming their purpose was to remove the President, rather than to simply embarrass him or make his re-election much more difficult. Nonetheless, he was impeached by the House of Representatives, and the Senate had a constitutional duty to try the case fully and impartially. The Constitution, which provides for three co-equal branches of government, is the glue that holds this nation together. It is weakened at our peril.

The Republicans’ contention that it was the House’s sole responsibility to subpoena any witnesses and documents is embarrassingly fatuous, especially given that President Trump ordered that no officials and no documents were to be made available to the House committees considering impeachment.

The position the President’s lawyers advanced turns jurisprudence on its head. What if defendants were allowed to argue that once someone was indicted by a Grand Jury the prosecution could offer no additional witnesses or documents at trial? What a mockery of justice that would be. But that is exactly what the President’s attorneys have argued in the Senate trial, and that is what the majority-Republican Senate has now enshrined as precedent. History will not judge them kindly.

There has never been another federal impeachment in which no witnesses or documents were introduced in the Senate trials that followed—none. In addition to the trials of Presidents Andrew Johnson and Bill Clinton (President Nixon resigned after the House Judiciary Committee passed Articles of Impeachment, but before the full House could vote to impeach), one senator, fourteen judges, a supreme court justice and a secretary of war have been impeached. In thirteen of the impeachments, witnesses and documents were introduced in the Senate trials. In the remaining three cases the judges who were impeached by the House resigned before their trials commenced in the Senate, and in one case, that of Senator William Blount in 1799, the Senate determined that it didn’t have jurisdiction to try one of its own. In other words, witnesses were heard and documents were presented in the Senate trials of every federal official who has ever been tried in the United States Senate. That has been the wise legal precedent of our history to date. Not anymore.

Lawyers and judges like to tell us that precedent in decided cases should be respected. In this impeachment and trial, procedural precedent has been trampled. The shoddy manner in which the Senate majority has dispatched consideration of the charges against President Trump will reverberate down through the years.

We have absolutely no problem with the majority in the Senate voting to acquit, or, for that matter, voting to remove. We are also mindful that in America the President doesn’t serve at the pleasure of the legislature and, therefore, we must set a high bar for impeachment. Suppression of evidence, however, is not the way to keep that bar high. Voting to acquit after hearing all the evidence is the way to maintain a high bar for impeachment. We should all have a huge problem with the majority voting to suppress evidence, and that is exactly what they have voted to do. You can bet this precedent established by the Senate Republicans will come back to haunt us.

The President and his lawyers have made credible Trump’s claim that he has the power to do whatever he wants to do in discharging his duties as President. Such an interpretation of his power is antithetical to the American experiment. The nation will come to regret it.

All comments regarding these essays, whether they express agreement, disagreement, or an alternate view, are appreciated and welcome. Comments that do not pertain to the subject of the essay or which are ad hominem references to other commenters are not acceptable and will be deleted.

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25 responses to “The Truth, The Whole Truth, And Nothing but The Truth: We Jest of Course.”

  1. Paul Lubar says:

    The House denied Trump witnesses, attorneys and complete cross examination with Schiff even admonishing witnesses not to answer certain questions. All of this occurring in the bowels of The House without access by most members.
    I guess what goes around comes around in the world of a political partisan impeachment.

  2. Steve marcus says:

    I wonder if those who are so quick to give Trump and his cohorts a “pass” on behavior that’s undermining the foundations of our democracy in a way far more egregious than anything our country has ever seen will be OK with it when the next Democrat president (and a compliant Senate) acts the same way.

    Sadly we have set a new precedent, one which we (and our children) will come to regret in years to come. Our constitution has been trashed. The guardrails are off. “Katie bar the door.” And stay away from Fifth Avenue….it’s going to be dangerous.

  3. ELIEZAR BENJAMEIN. AKA. Leonard Sherman says:

    Hal I respect your opinion, that is your right but can you list anything that the elected democrats have done for my country or my home land in the past three years except daily trying to remove the President from the White House., as to compared to what the President has done in the same period would fill this entire page.

  4. Susan duman says:

    I ditto Steve Marcus. He said it best.
    He may remember me as Susan Fleischaker from Louisville , Kentucky.

  5. Joanne hirschfield says:

    Well said Eliazar, this whole get trump is a sick farce!

  6. Jerry Mathews says:

    Well said Hal. A terrible precedent has been set particularly for the youth of our country.

  7. Perry says:

    I believe my Senator from Alaska had the best reason for
    voting for no impeachment and she is reasonable and fair
    and certainly only votes her true beliefs.

  8. judy allen says:

    Eliezar, JoAnne, I agree with your take on the Impeachment. Perhaps if “whistle blower” that everyone seems to know the name of except me had come forward to testify with his/her information by we would fee differently. As it is we continue to listen to Shiff, Nader , Schumer, Pelosie (that was dragged into this mess; although now savoring) They could have called for any of the witness that they “now” want to hear from…..I think the Democrats knew from the beginning this was not an impeachable offense and mistakenly thought they could “dirty up” Trump enough to have him lose the upcoming election.That remains to be seen….

    As for our children that Steve mentioned in my opinion/experience they appear to be drawn to what I consider to be Socialist….where did we go wrong with these adult/children. A couple that I talked with appear to like the part about “Government paying for everything” with little or no regard fro were that $$$ comes from…. “The rich” is what I hear most and definition of “rich” is somewhat vague…..

    Jut call me Jaded and sickened

  9. Janice Marcus says:

    There is an election next November.
    The people will decide.
    It makes me wonder when you don’t bring up the Biden’s. The whole family it seems cashed in on their
    ( father/brother)VICE presidents position. This has been damaging our country and the poor and middle-class for quite some time. This is a problem that needs to be legislated.

  10. Robert borns says:

    The conduct and behavior of the leadership of the house forced the administration and the senate to act like they did. If they acted any other way they would have simply acted like the recent republicans acted when the dems crushed them ala when Romney etc acted like the loser he was against Obama. The demos played hardball in the impeachment and the republicans just out faught and outsmartened them. Face it. Trump has split the demos and outsmarted them. He has taken the middle and lower income group story the demos had in the past and made it his. He is a political genius and he is a reincarnation of Harry Truman’s act. Read it and weep Democrats.

  11. Robert borns says:

    I forgot to ad -Hal,it is a pleasure to read your well thought out and factually oriented arguements. And to have the opportunity to give comments that are printed verbatim. Newspapers edit readers comments. Thank you!

  12. Hal Gershowitz in response to various commenters:
    To Paul Lubar:
    House committees considering impeachment act similar to a Grand Jury, in which the defense has no right to even be present. If a House impeachment inquiry determines there are grounds for impeachment it refers its findings to the full House for a vote. If the full House votes to impeach, the Articles of Impeachment (similar to an indictment) are referred to the full Senate which then acts as jurors to determine the final verdict. The full Senate then considers testimony from the prosecutors and the defendant’s (the President’s) counsel. Given the President’s directive that no witnesses or documents were to be provided to the House committees considering impeachment, and the Senate’s Republicans later stopping any witnesses or documents from being introduced in the Senate proceedings, we believe the People were denied a proper resolution of the Trump Impeachment.

    To Leonard Sherman:
    Over 400 measures were passed by the House of Representatives including bills for universal background checks, reauthorizing the Violence Against Women Act, Net Neutrality, minimum wage legislation, prescription drug price legislation, infrastructure, and numerous others that Republican majority-leader McConnell proudly button holes to keep the Democratic House from achieving legislative victories. Our purpose is not to be cheerleaders for the Democrats, but to point out that the Democratically controlled House, can’t accomplish much if the Republican-controlled Senate refuses to act on legislation passed by the House of Representatives.

    To Perry:
    Senator Murkowski complained that the Impeachment proceedings were partisan and unfair, and her remedy was to
    vote in an entirely partisan and unfair manner to keep out witnesses and documents.

    To Jaded and Sickened Judy:
    Whistleblowers are protected for a reason. President Trump is a perfect reason why. And no, Judy, the House committees couldn’t realistically call for the witnesses you suggest because the President ordered that no witnesses or documents were to be provided to the House committees considering impeachment.

  13. James Fisher says:

    I fully concur with Robert borns.
    1) The democrats launched a sham impeachment process – completely designed to follow their own political timetable for public perception reasons – (hurry up and wait) and got absolutely outsmarted. I would give McConnell more credit for this than Trump, however.
    2) Also, the second article of impeachment is viewed by most legal scholars as completely bogus. The President has every right to executive privilege and the absolute right to instruct members of his branch to withhold documents from Congress. All the dems had to do was to go to the courts – but that would interfere with their political timetable.

  14. Roberta Conner says:

    Hal, your commentary ignores the completely political and insidious motivation of the democrats in attempting to impeach the president. They know they cannot beat him in November with the amazingly weak list of candidates being offered. Many democrats have openly admitted just that … they must impeach him before the elections – or at the very least – smear him enough to tarnish the luster of his having kept dozens of major promises he made during his campaign.

    You could have also mentioned that the subpoenas sent by Congress to the Executive Branch were completely improper since they lacked the weight of the full congress as required by law. Forget about executive privilege – why should any administration comply with improperly formulated subpoenas from a co-equal branch of government?

  15. Steve marcus says:

    One more thought about the notion being put forth by some Republican Senators that the President did indeed do what the House has charged him with doing…..but that it doesn’t rise to the level of removal from office, especially since the next election is so close. Think about it….that’s like saying that we should let a burglar who robbed your house using a pilfered set of keys, should be allowed to keep the keys until his trial takes place….in 11 months. How comfortable would you feel knowing that the burglar still had those keys? If it was your house I think you’d want to impeach that judge also.

    And in addition, we have a Constitution, which has been the foundation of our union for over 250 years. Two of most important ideas (and the bedrock) of that document are the Rule of Law and the Right to Free and Fair elections. If we allow our elections to be “rigged” (recall who railed against that one?) by anyone, our democracy will fail.

    And as Hal has so aptly noted in his essay, how will those who support what Trump did with Ukraine, feel when it’s a Democrat doing it?

  16. Mike says:

    Three thoughts.

    First, the obstruction of Congress is certainly not a “high crime.” If you take a look at Obama and Eric Holder’s flagrant disregard for Congress, the Democrats had no problems with this behavior.

    Second, the Democrats put a premium on speed instead of doing their job in a complete and through manner. They could have litigated the subpoena for Bolton and others. Instead they chose to get this wrapped up by Christmas.

    Third, and most importantly, for Schiff and Nadler and others to deman that the Senate be impartial is farcical. It competely overlooks the fact that the House managed this in an egregious and bitterly partisan manner. It reminds me of the child who killed his parents and then threw himself at the mercy of the courts claiming he was an orphan.

    Adam Schiff may be an effective orator, but any objective assessment of his conduct would have to address his propensity for playing fast and lose with the truth. Practically speaking, the Dems have been looking to impeach Trump since January 2017. What is disappointing is that the President has not moved forcefully to remove the Obama holdovers who have been trying to subvert his Presidency..

  17. Paul Lubar says:

    Yes, the committee could hold the hearings without any input from the defense. But why would they do that if they were seeking the truth? This only reinforces my argument that the impeachment process was political and partisan. Also, executive privilege is necessary and is used by all presidents. I cannot imagine a White House where confidential discussions of all options to a problem would be made public. If I told my att. to find a way to not pay certain taxes and he says I must and then I pay the taxes have I committed a crime?

  18. Joe Noren says:

    Hal, let’s not forget Harry Reid, who as Senate majority leader
    had over 300 bills sitting on his desk that was never presented
    to the Senate. President Obama’s record shows he vetoed very
    few bills. Could that be because Reid never had them on the
    the Senate floor for debate of passage? POLITICS..POLITICS
    BOTH political parties use their political muscle when they
    CONTROL. Harry Reid dominated Congress, it was known as
    THE DO NOTHING CONGRESS. Sound familiar?

  19. Bill Pachter says:

    Without law in this country, what do we have? I am extremely hopeful that the senators that were trumpeted by our president lose in the upcoming elections. I feel that that is a distinct possibility.

  20. Michael Gong says:

    I stand with Hal, Steve and Bill. All the others present arguments that are either tautological or misinformed.

  21. ELIEZAR BENJAMEIN. aka Leonard Sherman says:

    Hal it appeared to me that the majority of the comments that were made in your response to your essay and your addional critique of the responders, where all people that love our country, and are Republicans, but are trouble by our disfunctional democratic elected members of the congress.of the United States. I now want to declare my loyalty to my commander and chief, and to the Republican Party. It might be a good idea for those that write also stand tall and openly admit their party affiliation. Nobody so far as gone to prison for openly declaring that they are a Democrat or a Rublican
    Fox Cable is my favorite station. fair and balananced

  22. Perry says:

    Love and respect all the comments and they all are very
    thoughtful and sincere.

  23. Irv Becker says:

    Bravo Hal. You hit the nail on the head, as usual. If this wasn’t an impeachable offense, I don’t know what is…he used taxpayer funds to attempt to extort a foreign leader.
    One of the main purposes of impeachment is prevent this very type of abuse of power. The American people deserved a full and fair hearing of the facts.

  24. Irwin yablans says:

    Thank you Hal for your comments on the Senate impeachment hearings.Your observations and analysis are objective and factual.Unfortunately these words will have no effect on those,who for selfish or unstated reasons refuse to honor truth.
    The very foundations of our Republic have been undermined by the cowardly inaction of the senate.this seems to mean nothing to individuals who believe that an unscrupulous vulgarian who lies with every utterance is acceptable as long as their personal agendas are satisfied. Those positions are petty and shortsighted.
    We will get the country we deserve. Hopefully, America can be redeemed in November.

  25. Robert borns says:

    From all the comments given it is apparent that nothing has changed or will change in anyone’s feeling for or against president trump no matter what has or will transpire. But it is amusing to read and hear the attempts to change the opposition views. Since it’s fruitless it must be fun.

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