I am not saying that this would result in a conviction or removal of Trump from office. However, if and when Speaker Pelosi decides to move the Articles of Impeachment to the Senate, then her House managers should make this move.
We should collect a list of all of the senators that have said that they will not approach this impartially. We should ask the remaining senators if they agree with the Senate Majority Leader who has stated that he will not be impartial (and like Lindsay Graham) or if they will honor the oath that they are going to be required to take. Now, I presume that the 2/3 majority required is of 100 senators and not going to change based upon the number of senators that remains after all of the dishonest and partial senators have been removed. Nevertheless, this news would put the dishonesty of the senate republicans front and center on every newspaper and on every news program. It would shut Trump up about any claim to be “acquitted” and it would affect the nature of the trial itself. It would make a large impression upon everybody who is not a member of the cult.
Biased Senators Should Be Disqualified From the Impeachment Trial
Because some senators have made no secret of their refusal to be impartial, the House managers prosecuting the case against the president should move for them to be disqualified from sitting in judgment.
Under the Constitution, the impending impeachment trial of President Donald Trump must be decided by senators who are, and who have sworn to be, impartial. Because some senators, such as South Carolina Sen. Lindsey Graham, have made no secret of their refusal to be impartial, the House managers prosecuting the case against the president should move for them to be disqualified from sitting in judgment, and the chief justice, as the presiding officer, should grant that motion.
There are only three requirements in the Constitution for the conduct of impeachment trials.
trials. A two-thirds majority is needed for conviction, the chief justice of the United States presides when the president is on trial, and—most importantly—“when [the senators] are sitting for that purpose [of impeachment] they shall be on Oath or Affirmation.” The oath is, of course, the requirement that the senators swear they will be impartial judges. The oath for senators, and also for the chief justice, is set forth in the Senate rules: “I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of ——— ———, now pending, I will do impartial justice according to the Constitution and laws: So help me God.”
Whether one considers the senators to be jurors or judges, the impartiality of decision-makers is crucial to our system of justice. The Sixth Amendment guarantees all those accused of crime “an impartial jury.” As the Supreme Court has explained, “This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies.” So, too, for judges, who Chief Justice John Roberts recently noted are charged with “maintaining the public’s confidence in an impartial judiciary” and with “administer[ing] justice without respect to persons.” Jurors and judges all take a solemn oath that they will render an unbiased judgment.
The House Managers need to do this !
Friday, Dec 20, 2019 · 11:58:10 PM +00:00
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Dem
Our senators have never said that they would not be impartial. The Republicans did and that difference is crucial. They will not be taking that oath insincerely. Their views have been based upon sincerely following the evidence and they can state honestly that they are going to follow the evidence.
Saturday, Dec 21, 2019 · 12:08:21 AM +00:00
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Dem
This is the author. Gregory Diskant
CONTACT INFO
Gregory L. Diskant
Of Counsel
Tel: 212-336-2710
Fax: 212-336-2222
Gregory Diskant is a senior litigator at Patterson Belknap, where he served as chair from 1997-2007. As part of his active trial practice, Mr. Diskant regularly tries cases in federal and state courts and before arbitration panels, focusing on complex commercial and intellectual property litigation. He has secured billions of dollars in judgments and settlements for his clients, with multiple verdicts greater than $100 million. In jury trials around the country, Mr. Diskant has successfully represented both plaintiffs and defendants. Two of his jury victories for plaintiffs were cited as major plaintiff's verdicts of the year; two of his jury wins for defendants were cited as major defendant's verdicts of the year. Most recently, in a two-week jury trial in Florida in August 2017, he defeated a $450 million claim of patent infringement.
Prior to joining Patterson Belknap Mr. Diskant served as Assistant United States Attorney and as Chief Appellate Attorney for the Southern District of New York. He also served as a Law Clerk to the Hon. Thurgood Marshall, Supreme Court of the United States and the Hon. J. Skelly Wright, U.S. Court of Appeals for the District of Columbia Circuit.
Saturday, Dec 21, 2019 · 12:31:17 AM +00:00
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Dem
This is not some bankruptcy attorney or truck injury attorney. He clerked for Thurgood Marshall. He was an assistant US Attorney and Chief Appellate Attorney for SDNY.
I don’t know if anybody else here has a stronger background. Maybe people here clerked for RBG or Sotomayor . Maybe they did not. Maybe they were also assistant US attorneys and the Chief Appellate Attorney for SDNY . Maybe not.
I am not an expert at all. However, I am not going to immediately dismiss what he has written.
Saturday, Dec 21, 2019 · 1:23:01 AM +00:00
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Dem
It has sometimes been postulated that there is no mechanism to force the senators to take their oath seriously. Not so. As litigants do in selecting juries every day, the House managers can move to disqualify any senator who has prejudged this case and is unwilling to set those preconceptions aside and decide this case on the evidence. Justice Ruth Bader Ginsburg said just the other day that this standard practice should apply to the impeachment trial. “We have a process to select jurors. If a juror reveals a bias, they will be disqualified.”
Who should decide the motion to disqualify any particular senator? The chief justice, of course, who the Constitution provides should preside over the trial. Much has been made of the Senate’s ability to override decisions by the chief justice. In fact, the Senate rules for impeachment provide for overriding decisions by the chief justice only with respect to “questions of evidence.” The motion to disqualify would rely on two provisions in the Constitution itself that the Senate cannot override: the requirement that the senators sit “on Oath or Affirmation” and the requirement that the chief justice preside. And if the senators attempt to override a ruling by the chief justice disqualifying a senator from sitting, and the chief justice acquiesces in that action, that sorry spectacle should play out in public, so that the people can judge for themselves the fairness of the proceedings.
The Framers expected that the Senate would take an impeachment trial seriously. Our citizens today deserve no less.
Saturday, Dec 21, 2019 · 1:29:56 AM +00:00
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Dem
Education• Columbia Law School (J.D.)o Kent Scholaro Editor-in-Chief, Columbia Law Review•
Princeton University (A.B.)o Chemistry degreeAdmissions•
U.S. Supreme Court•
U.S. Court of Appeals, Second Circuit; Third Circuit; Fifth Circuit; Eleventh Circuit; Federal Circuit• U.S. District Court,
Saturday, Dec 21, 2019 · 1:41:25 AM +00:00
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Dem
Justice Ruth Bader Ginsburg said just the other day that this standard practice should apply to the impeachment trial. “We have a process to select jurors. If a juror reveals a bias, they will be disqualified.
Sounds like the notorious RBG agrees . “We have a process to select jurors. If a juror reveals a bias, they will be disqualified. “
Ruth Bader Ginsburg
Saturday, Dec 21, 2019 · 11:54:31 AM +00:00
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Dem
Clerking at the Supreme Court, as told by the lucky few who've been there, done that, got the judicial robe...
CLERKING at the Supreme Court of the United States is the holy grail, the most prestigious gig any law grad can get. Only 36 SCOTUS clerkships come up for grabs each year. Only the brightest and very, very best need apply. Over a thousand who consider themselves in this category (and have letters of introduction from distinguished law professors and others to back them up) do so every year. And you don't go to the Supreme Court straight from law school – usually all successful candidates have previously clerked at federal appellate level, and wowed their judges there.
“Nothing else short of being a judge will replicate this experience,” one former SCOTUS clerk tells us of their year with a Justice. “You see directly how things work, which completely changes the way you see cases.”