Friday, January 17, 2020

Some arguments and rebuttals we can expect in the Senate impeachment trial

Here are some of the arguments you can expect the lawyers to debate in the Senate trial. The GOP's argument has been no laws had been broken so the president did not commit high crimes per impeachment criteria. The President did indeed break laws to execute his scheme.  The government General Accountability Office just reported that Trump had broken the impoundment law by failing to provide a reason or following the required procedure in freezing the aid to Ukraine. Another is that Federal Election Laws that forbid soliciting something of value from a foreign government in a political campaign. Trump broke that one by asking Ukraine to find dirt on a political opponent to help him in the 2020 election. That "favor" was asked of the President of Ukraine in the infamous July "perfect" phone call. Nothing in the Constitution requires the president of being found guilty of a crime before he could be impeached. If there was such a Constitutional requirement of the commitment of a crime prior to impeachment, there would never be an impeachment because no president can be indicted for a federal crime while in office due to court decisions and Department of Justice rules.

What we can expect is for the GOP to claim Trump's impeachment is baseless because Trump's attempt to play a dirty campaign scheme failed so there was no harm done.  An attempted crime is considered a crime by itself even if it is stopped in the act.  Timelines are damning evidence.

Expect the GOP to say that the President's actions were committed to helping American foreign policy objectives of ending corruption in Ukraine so therefore he did not abuse his power to help himself win re-election.  The problem the GOP faces is that every witness and document revealed in the House inquiry only proves that Trump's single-minded goal was to get dirt on the Bidens by his constant failure to cite the need to end Ukraine's corruption in general. Even two participants in executing the scheme agree Ambassador Gordon Sondland concluded that Trump did not give a "s..t" about Ukraine; he was only interested in the Bidens. Lev Parnas, Guiliani's fixer and on the ground executor of the scheme, in an interview on TV testified likewise. If he is considered a flawed witness, Parnas mostly corroborated other sworn testimony and backed up his statements with documented text messages and notes. That is also a good reason he needs to be called to give sworn testimony in the trial.   Both men also attested the President's private attorney, Rudy Guiliani, was not a rogue actor but that the president himself directed their activities. John Bolton, a party to the scheme, may also provide corroborating testimony.

The GOP leaders want to dramatize witnesses if witnesses are ever permitted are ones that put Joe Biden in a bad light, though Joe Biden is not the object of the impeachment and was not a witness or participant in the events of withholding aid and pressure on the Ukrainian president. Biden's actions may be relevant in a campaign, but he is not relevant to the issue now before the Senate. An inconvenient timeline...Ukraine corrupt prosecutor was not investigating Burisma, the company Hunter Biden was part of,.  for corruption when Joe Biden was urging the prosecutor to be removed.

The Government Accountability Office is a legislative branch government agency that provides auditing, evaluation, and investigative services for the United States Congress. It is the supreme audit institution of the federal government of the United States. Wikipedia

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Update: January 15 and 17, 2020
Lev Parnas' document dump within the week is written evidence that additionally verifies Trump's intent in the actions was not on behalf of national policy but for his own political benefit. Trump is directly tied by those Parnas documents to directing the operation through Rudy Guiliani.  Parnas and the testimony of John Bolton, Trump's national security advisor at the time, could provide further damning evidence of Trump's corrupt intent. Both indicated they would testify if subpoenaed in the Senate trial and present new evidence not available to the House inquiry.

We had made fun of Lev and Igor. No one is laughing now. Lev, born Russian, appeared both literate and accent free fluent in English and he was Guiliani's gopher. in Ukraine itself... He asked who was he himself, a nobody, and he said he would never have had access to the Ukrainian president and his brass if they did not believe he was representing Trump and was under his direction via Guiliani. His interview by Rachel Madow was most corroborating public utterance of what others had said during testimony, but he was the executor of the scheme itself on the ground there and the closest to the action. Like Fiona Hill, like Gordon Sondland, like so many others testifying at the impeachment inquiry, Trump was not interested in carrying out the US policy to reform Ukrainian corruption in general, but he was only interested in getting dirt on the Bidens. This is key since the GOP's main line of defense will be Trump was carrying out stated US foreign policy to end Ukraine's corruption. Amb. Sondland himself told those in earshot," Trump did not care "s..t" about Ukraine. It was about the Bidens." Finding dirt about the Bidens to help him in 2020 was the purpose of the scheme. The GOP will claim Lev is an untrustworthy witness because he is under indictment for campaign violations in 2016. However, whatever Lev said he had reams of text message printouts and damning notes he wrote on a hotel notepad to back his words up. His interview with Maddow was not under oath and I'll put money on it that Mitch McConnell will do all he can to keep him from being a witness under oath at the Senate trial.

The Parnas documents also expose another deal in the works.  The Ukraine prosecutor, Yuriy Lutsenko,  fingered by the US Ambassador Maria Jovanovitch as corrupt, said he had dirt on the Bidens he would provide if Jovanovich was removed. She was removed quickly in fear she was in danger. and Parnas revealed the threat that she was being followed.   That explains how Jovanovitch got reassigned so abruptly without explanation..For Guiliani to get the dirt, the deal was to get Jovanovitch out of her post first. Both the Ukrainian government and the US Secretary of State announced they would open an investigation to check into the implied threat of Yovanovitch being followed and for what purpose.
__________________________________________________________________________________ Ambassador Gordon Sondland’s Wednesday, Nov. 20,  House testimony was full of revelations. One of them is that President Donald Trump never seemed to ask Ukraine for an actual investigation of Vice President Joe Biden or his son, Hunter.
All he wanted, according to Sondland, was a public announcement of an investigation. He wanted a show.
There is a great discussion of the meaning of high crimes in Wikipedia and the various interpretations.
I have copied it for my own quick reference with thanks and acknowledgment to Wikipedia
"High," in the legal and common parlance of the 17th and 18th centuries of "high crimes," is activity by or against those who have special duties acquired by taking an oath of office that are not shared with common persons.[5] A high crime is one that can be done only by someone in a unique position of authority, which is political in character, who does things to circumvent justice. The phrase "high crimes and misdemeanors," used together, was a common phrase when the U.S. Constitution was written and did not require any stringent or difficult criteria for determining guilt but meant the opposite. The phrase was historically used to cover a very broad range of crimes.
The Judiciary Committee's 1974 report "The Historical Origins of Impeachment" stated: "'High Crimes and Misdemeanors' has traditionally been considered a 'term of art', like such other constitutional phrases as 'levying war' and 'due process.' The Supreme Court has held that such phrases must be construed, not according to modern usage, but according to what the framers meant when they adopted them. Chief Justice John Marshall wrote of another such phrase:
It is a technical term. It is used in a very old statute of that country whose language is our language, and whose laws form the substratum of our laws. It is scarcely conceivable that the term was not employed by the framers of our constitution in the sense which had been affixed to it by those from whom we borrowed it.[6][7]
Since 1386, the English parliament had used the term “high crimes and misdemeanors” to describe one of the grounds to impeach officials of the crown. Officials accused of “high crimes and misdemeanors” were accused of offenses as varied as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, helping “suppress petitions to the King to call a Parliament,” etc.[8] Some of these charges were crimes. Others were not.[citation needed] They can be thought of as serious cases of power abuse or dereliction of duty, without a requirement for these cases to be explicitly against the law.
Benjamin Franklin asserted that the power of impeachment and removal was necessary for those times when the Executive "rendered himself obnoxious," and the Constitution should provide for the "regular punishment of the Executive when his conduct should deserve it, and for his honorable acquittal when he should be unjustly accused." James Madison said that "impeachment... was indispensable" to defend the community against "the incapacity, negligence or perfidy of the chief Magistrate." With a single executive, Madison argued, unlike a legislature whose collective nature provided security, "loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic."[9]
The process of impeaching someone in the House of Representatives and the Senate is difficult, made so to be the balance against efforts to easily remove people from office for minor reasons that could easily be determined by the standard of "high crimes and misdemeanors". It was George Mason who offered up the term "high crimes and misdemeanors" as one of the criteria to remove public officials who abuse their office. Their original intentions can be gleaned by the phrases and words that were proposed before, such as "high misdemeanor," "maladministration," or "other crime." Edmund Randolph said impeachment should be reserved for those who "misbehave." Charles Cotesworth Pinckney said, It should be reserved "for those who behave amiss, or betray their public trust." As can be seen from all these references to "high crimes and misdemeanors," the definition or its rationale does not relate to specific offences. This gives a lot of freedom of interpretation to the House of Representatives and the Senate. The constitutional law by nature is not concerned with being specific. The courts through precedence and the legislature through lawmaking make constitutional provisions specific. In this case the legislature (the House of Representatives and the Senate) acts as a court and can create a precedent.
In Federalist No. 65Alexander Hamilton said, "those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself."[10]
The first impeachment conviction by the United States Senate was in 1804 of John Pickering, a judge of the United States District Court for the District of New Hampshire, for chronic intoxication. Federal judges have been impeached and removed from office for tax evasion, conspiracy to solicit a bribe, and making false statements to a grand jury.[11]
Andrew Johnson was impeached on February 24, 1868, in the United U.S. House of Representatives on eleven articles of impeachment detailing his "high crimes and misdemeanors",[12] in accordance with Article Two of the United States Constitution. (The Senate fell one vote short of conviction.) The House's primary charge against Johnson was with violation of the Tenure of Office Act, passed by Congress the previous year. Specifically, he had removed Edwin M. Stanton, the Secretary of War from office and replaced him with John Schofield, but it was unclear if Johnson had violated the act as Stanton was nominated by President Abraham Lincoln and not by Johnson.
During the impeachment of Bill Clinton in 1999, White House Counsel Charles Ruff described a "narrow" interpretation of "high crimes and misdemeanors" as requiring "a standard that the framers intentionally set at this extraordinarily high level to ensure that only the most serious offenses and in particular those that subverted our system of government would justify overturning a popular election". Writing in 1999, Mark R. Slusar commented that the narrow interpretation seemed to be most common among legal scholars and senators.[13]

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