This post invites people to take a moment to consider what an ideal prosecution of Trump in the Senate would look like. What is the best strategy for the impeachment managers when they have to show up some day in the Senate chamber and prosecute Trump?
It is part of a series where I examine ways to make Trump’s prosecution as effective as possible. Previously, I examined how to establish the right context for the trial, how to get additional evidence from witnesses and documents using the subpoena power of the Senate, what evidence should be presented, and the summation. This part examines responding to Republican challenges and what to do after the trial.
For context, my suggestion is an overall strategy with these parts:
- Clarifying the Goal
- Clarifying Senate Rules for the Trial
- Disposing of Biased Parties
- Calling Witnesses and Demanding Documents
- Presenting Evidence
- Summation
- Finalizing the Prosecution
- Handling Republican Rebuttal
- Following Up After the Senate Trial
In past articles, I presented the current part and then repeated the other parts to make it easier for readers to access them. However, here I’m going to present the entire strategy in order as it would be used, so that it is easier to follow the entire argument. For those dear readers who have already read the previous posts, I invite you to search down in your browser to the Finalizing the Prosecution section.
[The material in the following section was previously published.]
Prosecuting Donald Trump—A Framework
Friday 27 December 2019
Now that the House of Representatives has voted to impeach Donald Trump and we are waiting for the articles of impeachment to be transmitted to the Senate, a very important question is how Democrats should conduct his trial.
Over the next few days I will be publishing a strategy for conducting his prosecution in the Senate. This is an open framework for the Daily Kos community to consider options and weigh in on how we think Democrats could best pursue his removal from office.
After working through the entire process, I think the strategy is too long to put in one post. So, I’ve divided it up into segments. My suggestion is an overall strategy with these parts:
- Clarifying the Goal
- Clarifying Senate Rules for the Trial
- Disposing of Biased Parties
- Calling Witnesses and Demanding Documents
- Presenting Evidence
- Summation
- Finalizing the Prosecution
- Handling Rebuttal
- Following Up After the Senate Trial
For today, I’d like to start with a discussion of the goal of the Senate impeachment trial and then talk about establishing rules for the trial and disposing of biased parties. This is the ground work for the trial, putting it on a firm basis. Starting tomorrow, I want to follow up with a discussion of witnesses and documents. After that, we can tackle presenting the evidence, summation, and coping with the aftermath.
The Goal
The goal of this trial should not be to convince the Senate to remove Trump from office. Why? Because Republicans have made it loudly known they are not persuadable. If the impeachment trial accidentally resulted in his removal, that would be a huge benefit, but realistically our goal is distinctly different.
Our goal is to get Trump out of office.
So, our first objective should be to convince the American people Trump should be removed. His prosecution in the Senate should be viewed as the means to convince the American people to give him the heave-ho.
Our second objective should be to damage the Republican Party as much as possible through the impeachment process. Damaging the Republican Party should lead to their losing seats in Congress and depressing the vote for their 2020 presidential candidate. That candidate might be Trump, but it doesn’t matter. The Republican Party is bad for the country, and we should work to stop their candidates at all levels. Trump’s impeachment should therefore be weaponized against them if for no other reason than that he’s handed us this enormous weapon.
That means this suggested strategy is not aimed at convincing 67 Senators Trump should be removed because he abused power or obstructed Congress. These are merely vehicles for conducting his prosecution. My strategy is aimed at convincing an overwhelming majority of the American people that Trump needs to go. That may put enough pressure on Republican Senators to vote for his removal, or it might just mean he’s defeated for re-election. Either one would fulfill the goal of getting Trump out of office.
Senate Rules for the Trial
As of this writing, the party leaders in the Senate have not agreed on rules for the trial. In particular, we don’t know if they have agreed to call witnesses or not.
At this point, either House Speaker Nancy Pelosi will release the articles under some deal or not. If there is a deal, we will have to adapt to those rules. However, I think she should release the articles after the Senate returns with the warning that as of their point of release Democrats will pursue the prosecution without any agreed rules. If there is any debate on how to proceed, we will depend on a majority vote in the Senate to resolve it at the time of the dispute.
She should make it plain that going into this without rules means we intend to call witnesses. We will just go to the Chief Justice and give him our list. We will then ask him to issue a bench warrant for those witnesses to show up.
However, regardless of any rules agreed by the Senate, impeachment managers should insist that the people’s rights be respected. In fact, in starting their prosecution, they should make the following statement:
The House of Representatives has delivered articles of impeachment, asking for removal of Donald J. Trump from the Office of President of the United States. We, the impeachment managers, are here to represent the American people, and to act as formal prosecutors delegated by the House of Representatives. The House of Representatives was duly elected by the people of the United States to represent them, and we are representing the people in their case against Donald Trump.
This makes it plain that we have Trump on one side and the people of the United States on the other.
The impeachment managers should not accept without dispute any rule that would disadvantage the American people in their case against Trump.
Disposing of Biased Parties
Early in their prosecution, the impeachment managers should demand Majority Leader Mitch McConnell recuse himself or be prohibited from voting on impeachment. It isn’t that he’s announced his verdict in advance, making him unsuitable to try the case and fraudulent in claiming he will be impartial. He might be convinced if he saw the evidence presented. That’s not the problem with his participation.
The problem with his participation is that he’s colluding with Trump to undermine the trial. That’s unacceptable.
The chief manager should move that the Chief Justice ask McConnell to recuse himself and allow him a chance to do so. I’m pretty certain Justice Roberts will allow McConnell to state whether he will do so, and I’m equally sure McConnell will decline.
If he declines, the chief manager should then move that the Chief Justice excuse McConnell from the trial, on the basis that his presence biases the trial in favor of acquittal. Although unlikely, Roberts might do that. But if he doesn’t, the chief manager should ask for a recess so that the managers can report this to the House, because it obviously prejudices the trial and they need to get instructions from the House as a body. Presuming a recess, they should go back to the House, report that McConnell has not been removed, and ask for instructions. The House should resolve that McConnell’s participation biases the trial, and then instruct the managers to go back to the Senate and continue prosecuting Trump.
Even if they don’t get a recess, this will put McConnell’s bias and his collusion with Trump on display, and will give pundits lots of reason to comment.
After disposing of McConnell’s situation, the chief manager should then demand Vice President Mike Pence recuse himself or be prohibited from voting, on the basis that Pence is a possible witness and is accused of having participated in the scheme to extort President Zelensky of Ukraine. This should go down the same way. Either Pence recuses himself or Justice Roberts is asked to excuse him. If neither happens, the chief manager should ask for another recess to report this to the House. The procedure there would be the same.
By systematically accusing both McConnell and Pence of bias, Democrats should aim to decapitate Trump’s defense in the Senate. It is unlikely to succeed, but the goal of this is to get the American people to see that Republicans are denying the people of the United States a fair trial. The managers should take their time in this, so that it gets a lot of coverage in the media. We want the American people to know that Republicans are trying to rig this so Trump is acquitted, no matter how serious his crimes.
It is possible in all this Republicans will seek to retaliate by asking Democratic Senators who have come out strongly in favor of impeachment to recuse themselves. I would handle this by asking for a process where the Chief Justice asks every Senator individually if they believe they can render a fair verdict, even though they may have made statements indicating a bias. This is how bias is usually handled in actual court cases. A juror may be predisposed toward or away from the defendant, but the judge will ask them if they believe they can put aside their prejudice and fairly try the case. This is just normal jury selection, and it should be positioned as such by Democrats.
If the Chief Justice allows this, it weighs against the Republicans, because it will be much harder for them to say they will listen to the evidence fairly and render a fair verdict. Part of their shtick is that all of them consider this a witch hunt and don’t think they should have to participate. Having each of them swear up and down that they will be fair makes them a part of the preceding in a way they can never renounce. But it is likely Republicans will reject this proposal and just shut up. It calls their bluff, and my prediction is they will fold.
Once again, if any of these motions are turned down, the position of Democrats should be that this is a further indication that Republicans are not willing to give the accusations a fair hearing. Republicans are partisan and biased, and even if they refuse to remove Trump, that just indicates they are all in cahoots with him.
Conclusion [Part 1]
After establishing control of the rules, Democrats should then demand witnesses and document[s]. Since they will be putting this plea in front of the Chief Justice, I believe it will be nearly impossible for Trump’s defenders to block access. So, tomorrow, I’d like to discuss that part of the trial.
But for today, what are your thoughts on the beginning of the prosecution? Is anything missing from this analysis? What would you do in addition or differently to reach our goal of removing Donald Trump from office?
Prosecuting Donald Trump—Obtaining Evidence
Saturday 28 December 2019
Yesterday, I began publishing a strategy for prosecuting Donald Trump in the Senate. That post contained suggestions on how the prosecution should establish control of the trial by clarifying the rules for it and disposing of biased parties.
The next part of this strategy is to demand evidence through the power of the Senate that was not previously available. The White House stonewalled House subpoenas for documents and witnesses, but it is unlikely they can stonewall Senate subpoenas or bench warrants from the presiding judge, Justice Roberts.
This will prepare us for tomorrow’s posting on presenting evidence, where we get to the heart of the prosecution.
For context, my suggestion is an overall strategy with these parts:
- Clarifying the Goal
- Clarifying Senate Rules for the Trial
- Disposing of Biased Parties
- Calling Witnesses and Demanding Documents
- Presenting Evidence
- Summation
- Finalizing the Prosecution
- Handling Rebuttal
- Following Up After the Senate Trial
Here, we will deal with “Calling Witnesses and Demanding Documents”.
Calling Witnesses and Demanding Documents
Early in their prosecution the impeachment managers should demand witnesses and documents, and they should present a list. On that list of witnesses should be at least:
Rudy Giuliani (Rudolph William Louis Giuliani)
Mick Mulvaney (Secretary John Michael "Mick" Mulvaney)
Gordon Sondland (Gordon David Sondland, Ambassador to the EU)
Mike Pompeo (Secretary Michael Richard Pompeo)
Rick Perry (former Secretary James Richard Perry)
Mike Pence (Vice President Michael Richard Pence)
John Bolton (John Robert Bolton, former Ambassador to the UN and former National Security Adviser)
Don McGahn (White House Counsel Donald Francis McGahn II)
Corey Lewandowski (Corey R. Lewandowski, former Trump campaign official)
The chief manager should make it plain that we are not calling Rudy Giuliani as attorney to Donald Trump, but rather as a private citizen with knowledge of Russian influence in Ukraine. The others should be called as material witnesses to the alleged crime of extorting a private favor from Ukrainian government officials in exchange for officials acts of the President of the United States or witnesses to obstruction of justice.
I don’t have enough information to suggest what specific documents should be demanded, but I would look for any that show official actions conducted by anyone working in the executive branch that pertain to abuse of power. Specifically, I’d look for acts that resulted in withholding security funds from Ukraine that were appropriated by Congress or withholding a White House meeting with Zelensky. I would also look for any that have to do with the withdrawal of special operations troops from northern Syria and any that have to do with our relationship with the military forces of South Korea, specifically ones that pertain to cancelling joint operations between U.S. military forces and South Korean military forces. I would look for any documents that substantiate obstruction of justice or obstruction of Congress.
Impeachment managers should ask Justice Roberts to simply issue bench warrants for the witnesses, rather than going through a subpoena process. It is unlikely Roberts will take this action on his own, but he can refer it to the full Senate for a ruling. This only requires a simple majority. If we have been successful at removing McConnell and Pence from the trial, this will only take a very limited number of Republicans siding with Democrats to get these witnesses, and we’ve already seen Republican Senators indicating they might do so. Any witnesses or documents approved by a Senate majority can be rolled into an official subpoena and sent to the White House.
Trump’s defenders may well try to call their own witnesses. I’ve heard that they want to call Rep. Adam Schiff, Joe Biden, and even Hunter Biden. Let’s deal with these requests.
The request for Schiff is most easily dealt with because he’s a member of the House. The Constitution says of Senators and Representatives:
For any Speech or Debate in either House, they shall not be questioned in any other Place.
Article I, Section 6
Adam Schiff’s role in the House Intelligence Committee meetings as well as his participation in the full House vote on the articles means he was in debate in the House, and he can’t be questioned about it anywhere but the House. His involvement in investigating Trump’s impeachable offenses as a member of the House immunizes him against being a witness in the Senate trial.
More broadly, it’s just improper for the Senate to interrogate him about his role as a Representative. The separation of powers doctrine that applies to the branches of government ought to apply to the houses of Congress.
A request for Joe Biden would also be improper because the obvious purpose of questioning him involves his roles as Vice President. If Trump has blanket immunity from testifying to Congress or turning over any evidence, then that immunity obviously applies to the VP, as well.
In any case, calling either Biden is just a fishing expedition. The way to deal with that is to object that no proper foundation has been laid to suggest either of them had a role in Donald Trump’s alleged offenses, which is what the trial is about. If the Senate wants to question them, they need to do that in the context of a properly formed investigation. But their testimony in Trump’s trial isn’t relevant to the issues of that trial.
Republicans may well claim that it is relevant because Trump’s belief the Biden’s were involved in corruption in Ukraine led him to pressure the Ukraine government to start investigations against them. But this has no foundation, either. If Republicans want to make that argument, then they need to bring forward actual evidence the Biden’s were furthering corruption in Ukraine. We all know there isn’t any. It might be unseemly for Hunter Biden to work for a company in Ukraine while his father is VP, but that isn’t evidence either of them was involved in corruption. And the idea that Joe Biden was furthering corruption in Ukraine is ludicrous on its face. It’s contradicted by his actions while in office, and I’m sure could be crushed by any real investigation.
So, I think we can block any demand for these people to testify. But, beyond that, I think the Republicans would be ill-advised to demand Hunter Biden testify. Let’s say they succeeded and they got to ask him questions. What they will no doubt find is Joe Biden had no role in his hiring at Burisma Holdings, and that Hunter Biden’s prior experience as a board member at Amtrak qualified him to hold a position on the Burisma board. Further, he might testify that he was in a position to see corruption, but didn’t, undermining their whole conspiracy theory that Burisma was corrupt and the Biden’s were helping to hide that corruption. Actually getting Hunter Biden to testify might be extremely damaging to the Republican position, because it might destroy many of their conspiracy theories.
It would be embarrassing for the Republican dog to have the bumper of the car firmly in its jaws, just not knowing what to do with it.
Conclusion [Part 2]
The impeachment managers should go after a broad set of witnesses and documents. They should make this an extensive effort for a number of reasons. One is to show that there is a lot of evidence being withheld by Trump and his administration. Another is to put the requested witnesses in the spotlight, where the public will see them as withholding evidence. A third is that there is good reason to believe the Senate will demand all or some of the witnesses testify, and may well demand documents.
If any of this evidence is subpoenaed by the Senate, the administration will be in a poor position to withhold it. If they try, the impeachment managers should demand this be immediately resolved in the courts before the trial can continue.
That would force the courts to expedite these issues to immediate conclusion. While this is happening, Trump has still been impeached but not cleared of anything, and attempts to stop production of evidence would be seen as another reason for the public to want Trump out of there.
Beyond that, we are going to eventually get to the question of Article II—Obstruction of Congress. Any blockading of evidence demanded by the Senate is further evidence of guilt on this charge.
In sum, the impeachment managers should press their demands for evidence to the fullest extent possible. This is both good for getting to the truth and for our ultimate goal of removing Trump from office.
Prosecuting Donald Trump
Sunday 29 December 2019
While the public is focused on the drama of Speaker Nancy Pelosi holding articles of impeachment over Donald Trump’s head like the Sword of Damocles, we have a moment to pause and consider what an ideal prosecution of Trump in the Senate would look like. What is the best strategy for the impeachment managers when they have to show up some day in the Senate chamber and prosecute Trump?
This article is part of a series where I examine ways to make Trump’s prosecution as effective as possible. Previously, I examined how to establish the right context for the trial (Prosecuting Donald Trump—A Framework) and how to get additional evidence from witnesses and documents using the subpoena power of the Senate (Prosecuting Donald Trump Obtaining Evidence).
Disclaimer: I don’t have any special expertise on impeachment. I’m just armed with a copy of the Constitution and publicly-available information. Everyone else is welcome to weigh in. A public discussion might give congressional Democrats ideas. At this point, having every idea on the table is the way to the best results.
You might think we could just leave impeachment up to the experts. I am an expert—in my field—and I can assure you as an expert that experts don’t always exercise the right judgement and are not omniscient. Experts are not infallible. Any expert worth his or her salt is open to obtaining new ideas and options from others, regardless of their level of expertise. It is, in fact, a requisite to be a top-notch expert that you refrain from believing you know it all.
So, I present this in the humble knowledge I don’t know it all. This isn’t about me dictating the right strategy. It’s my way of opening up the discussion so that we, as a community, can get to the best possible strategy for removing Trump from office.
For context, my suggestion is an overall strategy with these parts:
- Clarifying the Goal
- Clarifying Senate Rules for the Trial
- Disposing of Biased Parties
- Calling Witnesses and Demanding Documents
- Presenting Evidence
- Summation
- Finalizing the Prosecution
- Handling Rebuttal
- Following Up After the Senate Trial
In this post we will deal with “Presenting Evidence”. My previous two articles are reprinted at the bottom of this post for your convenience. I intend to cover the remaining sections tomorrow.
Let’s just quickly review the goal of impeachment, as I see it.
Our goal is to get Trump out of office.
So, our first objective should be to convince the American people Trump should be removed. Our second objective should be to damage the Republican Party as much as possible through the impeachment process.
This suggested strategy is not aimed at convincing 67 Senators Trump should be removed because he abused power or obstructed Congress. These are merely vehicles for conducting his prosecution. My strategy is aimed at convincing an overwhelming majority of the American people that Trump needs to go.
Presenting Evidence
While the articles of impeachment are minimalist, I think the prosecution of Trump should be as long and as aggressive as possible. It should not just attack Trump across the board, but it should implicate Republicans, especially Republican Senators, in his offenses. And it should be as forceful and pointed as possible.
Start with Treason
So, the impeachment managers should start by proving, to the fullest extent possible, that Donald Trump is a traitor. Let them not mention the word “traitor” or the word “treason”. Just systematically show it under the canopy of “abuse of power”. Repeatedly note that he adheres to various enemies, giving them aid and comfort. Political commentators will be happy to translate this phrase for the public: It means treason.
Let’s start that by defining specific enemies:
Vladimir Putin and the Russian Federation
Bashar al-Assad and Syria
ISIS and terrorists, generally
Kim Jong-un and North Korea
I’ve explained in more detail why I think these entities are enemies of the United States in Articles of Impeachment.
These are specific, identifiable enemies who have taken arms against the U.S. or attacked sovereignty or human rights, resulting in the U.S. taking military action against them. These are enemies where we have a concern about U.S. security, and where we are opposing them militarily. These are not just people or entities we don’t like. We aren’t bandying the word “enemy” about loosely. These entities pose a threat to our national security.
Then, I would go over Trump’s pattern of behavior, showing that he has systematically aided and comforted these enemies. That would include:
- His stating he believes Russian intelligence over U.S. intelligence.
- His systematic denial Russia is specifically to blame for meddling in the 2016 elections.
- His calls for other countries, including Russia and China, to meddle in our elections.
- His invitation to Russian officials to meet in the Oval Office, likely compromising national security.
- His revelation of intelligence sources and methods, including those of our allies (specifically Israel) to the Russians.
- His cancelling joint exercises with South Korean military forces.
- His withdrawal of special forces from northern Syria.
This is just a bare minimum list, and could be well extended by the impeachment managers.
They should note that in each case Trump has weakened U.S. security and undermined our diplomatic position. They should also note these actions helped one or more of our enemies, listed above.
They should then give examples of where Trump has repeated Russian propaganda. To the extent possible these examples should also be examples that apply to Republican Senators. For example, Sen. John Neely Kennedy recited Russian propaganda almost verbatim. It is important to introduce this evidence because it can then be used in campaigns against these Republicans after the Senate trial concludes.
The impeachment managers should call as a witness and make the most use of Rudy Giuliani. The main question I have is how much is Giuliani involved in the treason being committed by Donald Trump? Did Trump know that information retrieved by Giuliani from Ukraine was Russian propaganda? To what extent?
Giuliani has been meeting with people in Ukraine who can reliably be considered agents of Russia. He brought back Russian propaganda. It’s reasonably certain that money from a Russian oligarch, going through Lev Parnas, went to Giuliani and to Republican politicians. How much have the Russians bought off American officials? The impeachment managers should grill Giuliani to find out to what extent he’s either an unwitting agent of the Russians or just a Russian spy.
The chief manager should then sum up by saying this evidence proves Donald Trump has been adhering to the enemies of the United States, giving them aid and comfort, which is an abuse of power.
The impeachment managers should take their time in presenting this evidence. The pundits will immediately pick up on the fact they are proving Trump is a traitor, and it will light up the cable networks. If this presentation can be spread over at least two days it will start to sink in.
It is important to go after Trump for treason because it is the strongest case for removing him from office. Treason is the strongest reason for removing a President, hence it appears first in the impeachment clause. It undermines the sovereignty of the country. No government official should take a chance Trump is guilty of this, because they are responsible for defending the country.
And the evidence is strong. Trump has a solid pattern of helping Putin and Russia. Just withholding aid from Ukraine helped Russia, never mind whether Trump got anything in return for it. Trump has good reason to help Russia, a pattern of doing so, and it helps an enemy of the United States. So, this is the strongest and most damaging case to make, and failing to make it is political malfeasance.
This line of prosecution is also very threatening to Republicans. If they lose on this, they will be shamed forever. It will both anger them and put them on the defensive. And no matter what they say about it, they will be on the losing end, because even talking about it is losing. It will put Fox News in a very serious bind. They will not be able to ignore it, but if they comment on it, they are announcing to the most repressed part of Trump’s base that he is accused of treason. And not one of those people doesn’t already know he held up military aid for Ukraine. Slowly, slowly, two plus two is going to add up to something.
In addition, if they have to defend him on treason, it is much more likely Republicans will be willing to find a lesser charge to accept and get rid of him. They can’t afford for Democrats to hang “traitor” around their necks in the next election.
In any case, strategically, it is important to fix the opposition with an attack they must repel. That allows you to maneuver and attack from other angles while they are tied down on the main attack. Making treason the main line of attack will fixate Republicans on defending him against this charge, making all the other accusations that much easier to prove.
It will be critical for Republicans to defend Trump against treason. It’s a charge they simply cannot ignore. It ties up their resources and prevents them from maneuvering. So, it should be the first and most powerful attack made by the impeachment managers in the Senate.
In previous posts a number of people have objected to prosecuting treason. I want to respond to some of those objections here.
Objection: Treason is “such an inflammatory charge that it’s a complete non-starter.”
Actually, the fact it is inflammatory is to our advantage. We have trouble breaking through to people who don’t normally follow politics. It is precisely because “treason” is a sensational charge that it should be used.
Objection: There is a statute defining treason.
That’s interesting, but this is an impeachment, and the only thing that’s relevant is what’s in the Constitution. The Constitution defines treason this way:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.
Article III, Section 3.
Trump’s behavior fits squarely within this definition. He has been adhering to our enemies, giving them aid and comfort. For example, withholding aid from Ukraine helped Russia by allowing it to continue its military pressure against Ukraine while the aid was withheld. Since Russia is an enemy and withholding the aid from Ukraine materially affects our security position, this is literally adhering to an enemy, giving them aid and comfort.
Objection: Trump can’t be adhering to an enemy because we aren’t in a declared war.
The Constitution doesn’t say we need to be at war for some entity to be an enemy.
This is an unsupportable proposition anyway, because we are at war with various entities without those wars being declared. The U.S. has been under cyber-attack by Russia since at least 2015. Those attacks on our processes of election are intended to interfere with our sovereignty, and as such they are worthy of a declaration of war.
We’ve fought maybe a dozen wars since the end of World War II without declaring any of them. We fought a bloody, three-year hot war with North Korea without it ever being declared. No one would claim this wasn’t a war. The U.S. suffered (officially) over 33,000 battle deaths, among about 3 million deaths attributed to the war on all sides. And we are still technically at war with North Korea. We signed an armistice that ended the hot war, but there was never a peace treaty. Congress never declared war in Korea, although they allocated funds to fight it. And, in fact, they regularly fund our troops in South Korea because North Korea is our enemy. Thus, I don’t think anyone would seriously claim North Korea isn’t an enemy.
So, the fact there’s no declared war is irrelevant to whether a president can be charged as a traitor. Trump is eligible to be accused of treason, and his conduct supports such a charge.
Objection: We will fail to prove this charge and that will turn the public off or make them think we are just being partisan.
Treason is the easiest charge to prove. In the office of President, Trump has the means to aid Russia and other enemies by taking official acts, such as withholding aid that would impede their military advances. He got money from Russian entities when U.S. banks cut him off, giving him ample motive. Congress appropriated funds for Ukraine’s security which Trump could withhold, so he had an opportunity to help Russia. He has an entire pattern of committing acts that help our enemies, and withholding funds from Ukraine is just one.
He had means, motive, and opportunity. Given his pattern of actions it is hard to establish any reasonable doubt why he withheld Ukrainian funds. In an actual trial, he’d be found guilty in a New York heartbeat!
As for it making us look partisan, surely you jest! The Republicans made impeachment partisan from the first. It will also not turn the public off. To the contrary, it will make them tune in because it ups the ante. It may, in fact, be the one thing that convinces actual conservatives he should go.
But my most fervent objection to this objection is that it is an example of just what has caused Democrats to lose to Republicans for decades: our propensity to pre-compromise with them. That’s dysfunctional. Democrats shy away from anything controversial. They are apparently too uncomfortable with some issues to employ them publicly.
Not Republicans. They will even lie about things and totally distort the truth to make political points.
Democrats! You don’t have to lie about Trump or distort the facts to prove treason. Just follow the evidence. Yes, I see you are uncomfortable. But, just this once, for the country, be willing to get out of your comfort zone and use the most effective tool to pry this guy out of the White House.
Remember: It is not up to us to decide whether this is an effective argument. We should make the argument because there is ample evidence Trump is guilty and let the people of this country decide if Trump is committing treason.
Now, I don’t think the impeachment managers should march in and accuse Trump of treason. It isn’t one of the articles of impeachment. If they did that they would be well over their skis. What I do think they should do is present the evidence for it as an example of abuse of power. Present the evidence and prove Trump’s treason to the American people. Let it damage Trump. If it increases the percentage of people who want him out of office by 1 or 2%, that may be the margin by which we remove him. So, just do it.
Continue with Extortion
After working through treason, the impeachment managers should start on extortion. Note that we didn’t mention in any of the preceding that Trump was attempting to get anything in return for his actions, just that he was aiding our enemies. Now we add to that he also did some of this for his own personal gain. He sold out our security and our future for his own personal gain.
This is where we can focus in on Ukraine, and how Trump decided he could get some personal gain from Zelensky while furthering Russian interests. The subtext is that not only is he a traitor, he’s greedy and sought to profit off his office at the expense of all Americans.
Here, the impeachment managers can use most of the witnesses. I’d want to know from each witness whether they agree Trump withheld security assistance from Ukraine to get investigations of his political opponents. Did Trump order any of them to obtain these investigations? If not, how did they know what he wanted? If Trump actually wanted something else, what evidence do they know exists to show this? Is there a document where Trump stated policy that would imply getting this but not stating specifically he wanted investigations of his political opponents? What was the sequence of events in developing what Trump demanded on his call with Zelensky? What other White House communications were made with the Ukrainians, and is there any physical evidence of those other communications?
In all of this, it is important to remind people we are defending the people of this country against someone who is not only abusing his power but also doing so to enrich himself on their backs. The people gave Trump this position of trust on the basis that he would work for them, not for himself. He betrayed that trust.
This is how we make this personal for the voters. Trump is ripping them off. Nothing new for him, but it’s been quite a long time since the President of the United States was so corrupt that he was personally enriching himself using [his] position while in office.
And they should emphasize this by bringing up his violations of the Emoluments Clause, specifically how he has refused to put his assets in a blind trust and has been willing to take money from foreign entities at his properties and even use U.S. military funds to enrich one or more of them by using them to house military personnel.
Again, the managers should start with a pattern of behavior and show how Trump’s shakedown of Zelensky fits into that pattern. His demand for a personal favor from Zelensky is entirely in keeping with how he has conducted himself in office. This isn’t an isolated crime. This is corrupt business-as-usual in the Trump Administration, and it is shortchanging the American people for his own benefit. The high part of the crime here isn’t that he’s getting something of value. The high part is that the American people are being cheated out of what they deserve.
In summing up, the chief manager should note that we are covering multiple types of abuse of power. We have extortion, which is a form of bribery (to the extent it means taking things for personal gain in exchange for official acts), but we also have various violation of the Emoluments Clause, where he has been systematically trading on his position as President for personal gain. The House, acting on behalf of the people of the country, would have been entirely correct to have impeached Trump long ago. If it seems like Democrats have been out to “get him” from the beginning it’s because he’s been abusing his power right from the first, in many cases in obvious ways.
Also in summing up, the impeachment managers should go back to the evidence of treason and how it relates to the evidence of extortion. We should never let up on our line of evidence of treason, because that is the fixing attack and we want our opponents to continually defend against that. This is one of the things that frees us up to attack on other fronts, like extortion.
Continue with the Mueller Report
Next, I’d bring in the Mueller Report, specifically Volume II. This volume is about obstruction of justice, that is, Trump’s obstruction of Mueller’s Russian investigations.
To stop investigations of Russian connections with the Trump campaign during the 2016 elections, Trump put pressure on a number of public officials, including FBI Director James Comey and Attorney General Jeff Sessions. This included drafting Corey Lewandowski (a former Trump campaign official and conservative commentator) to demand Sessions announce publicly that the Russian investigation was “very unfair” to Trump. Neither Lewandowski nor another White House official, Rick Dearborn, who Lewandowski drafted to deliver it, were comfortable taking this message to Sessions. They knew it was a lie.
Trump ultimately fired Comey, and then almost immediately told the Russians he had faced great pressure, but that it was taken off, likely in reference to his firing Comey.
On multiple occasions Trump demanded Sessions “un-recuse himself” from the Russian investigation. After Sessions appointed Robert Mueller as Special Counsel to pursue the Russian investigations, Trump demanded Sessions resign. He also demanded White House Counsel Donald McGahn call Deputy Attorney General Rod Rosenstein and demand he fire Mueller, a directive which McGahn ignored. Trump later ordered McGahn to deny he had been ordered to have Mueller fired.
Trump also interfered with efforts to disclose details about a June 2016 meeting at Trump Tower with Russians which probably brought his campaign information about Hillary Clinton. He did that to minimize its relevance to the Russian investigation.
On numerous occasions, and specifically with regard to the Michael Flynn, Paul Manafort, and Michael Cohen trials, Trump attempted to influence those people as witnesses.
It is important to note that after Trump became aware he was under investigation for obstruction of justice, he engaged in public attacks on the investigation, conducted non-public efforts to control the investigation, and tried to encourage witnesses not to cooperate with it. All of these actions constitute obstruction of justice.
The impeachment managers should call Don McGahn and Corey Lewandowski to testify. We need to know whether it is true, as alleged in the Mueller Report, that each of them was asked by Trump to interfere in the Russian investigations. What were Trump’s instructions? In those cases where they refused to carry them out, why didn’t they do so?
In summary, Trump has participated in numerous attempts to obstruct justice. The Constitution says of the President:
…he shall take Care that the Laws be faithfully executed…
Article II, Section 3.
Obstructing justice violates the requirement the President take care the laws be faithfully executed.
Taking care the laws are faithfully executed is part of faithfully executing the Office of President, which is part of his oath of office. As such, taking care the laws be faithfully executed is part of the contract the President makes with the people when he or she takes the oath of office. Obstruction of justice is violation of the oath of office.
Since Donald Trump has obstructed justice on numerous occasions, he’s broken his oath of office, which is what creates the contract between the President and the people. As such, the contract is no longer valid, and the Senate should remove him from office.
Also in summing up, the impeachment managers should go back to the evidence of treason and how it relates to the evidence of obstruction of justice. We should never let up on our line of evidence of treason, because that is the fixing attack and we want our opponents to continually defend against that. This is one of the things that frees us up to attack on other fronts, like obstruction of justice, which is a separate count of abuse of power.
Continue with Obstruction of Congress
The foregoing has probably covered enough abuses of power to justify conviction on Article I. If any major abuses have been missed, this would be the time to cover them. This is where I think they should bring up Trump’s violation of human rights, such as his actions on the border to separate children from their parents and his interference with discipline of accused Seal Eddie Gallagher’s by the Navy.
But then we should turn to Trump’s obstruction of Congress. The impeachment managers should quantify and make real the degree to which the administration has refused the legitimate power of the House to conduct oversight, which is a constitutional duty. They should present statistics about how many documents and how many witnesses have been subpoenaed.
They need to explain how obstruction of Congress hurts the people of this country personally: Congress represents the American people. The people went to the polls and voted for members of Congress. Impeaching the President and removing him from office does not nullify his election or cancel the vote of the people at the ballot box. It represents the current will of the people, in this case as they expressed that will in 2018.
In 2018 the people had had almost two years of the Trump Administration to judge, and they judged it wanting. This impeachment is an expression of the will of the people.
In addition, about 67 million people voted for candidates other than Donald Trump in 2016, a much greater number than the 63 million who voted for Trump. Republicans are trying to nullify the judgment of those 67 million people. The House, in impeaching Trump, is representing the majority.
When the President refuses a congressional subpoena he is defying the will of the people. Trump’s systematic refusal to provide documents or witnesses to Congress shows his disrespect for the American people. His disrespect for the people is an impeachable offense, perhaps worse than his abuse of power, because the people could remove him is he were just a criminal. But how do you remove a tyrant, who refuses to bow to the will of the people? How do you remove someone who refuses to let the people see honestly what that person has been doing?
Impeachment is about sovereignty. Trump has stated that Article II of the Constitution means he can do anything he wants. He has thus set himself up as king. But that’s not how it is in the U.S. In the U.S. the people are sovereign. Sovereignty passed from the King of England to the people of the United States in the Paris treaty that ended the American Revolutionary War. This isn’t just a theoretical concept. It’s a legal one. Trump is literally threatening to take sovereignty away from the people of the country. Impeachment is about stopping him.
So, impeachment isn’t about partisanship. Trump’s removal is how the people win. The House of Representatives has gone to battle for the people of the United States against a would-be tyrant. Trump has nothing but contempt for the people. The people need to make sure the President serves them, because they are sovereign here. That alone is reason to remove him.
Summation
In summary, the chief manager needs to make it clear that Trump is attacking the American people, and impeachment is the legal mechanism for those people to fight back. This isn’t just a political matter—partisan wrangling between the Democrats and the Republicans. This is a contest of democracy, a contest between the people of the country, demanding their President look out for their interests, and a rogue ruffian, using the power of the presidency for his personal gain.
Also in summing up, the impeachment managers should go back to the evidence of treason and how it relates to the evidence of obstruction of Congress. We should never let up on our line of evidence of treason, because that is the fixing attack and we want our opponents to continually defend against that. This is one of the things that frees us up to attack on other fronts, like obstruction of Congress.
Conclusion [Part 3]
We have just covered how to present the evidence. Tomorrow I plan to go on to the follow up.
It’s true people want to hear solutions to problems. Fine, Democrats have solutions. But Republicans made Trump’s impeachment political. That was their strategy: to say it’s partisan and therefore illegitimate. But once his trial is over it isn’t political any more. At that point, where Republicans stood on removing him is important. Did they stand up for Trump or did they stand up for the United States of America?
I ask you, my fellow Americans!
[The following is new material]
Prosecuting Donald Trump Complete
Monday 30 December 2019
Finalizing the Prosecution
We’ve just seen a complete strategy for prosecuting Trump in the Senate. We start with the proper goal: getting Trump out of office. We then turn the rules to our advantage by defining them ourselves as we make the case against him. We attack the bias in the Senate by demanding Mitch McConnell and Mike Pence step aside. We then demand documents and witnesses that will help prove the case.
After that, we present evidence, starting with evidence that backs up a charge of treason. Then we present evidence he extorted Ukraine. Next, we note he obstructed justice, based on evidence in the Mueller Report. After that, we wrap up with evidence he obstructed Congress, defining that as defying the American people and trying to take away their sovereignty.
In all of this we leverage our opponents’ biggest weakness—that Trump is just a traitor, working for the Russians and perhaps other governments. We remind the public over and over that Congress represents the people and this is a trial where the American people have put the President on trial. It’s the American people vs. Donald Trump, not the Republicans vs. the Democrats.
But what about after the prosecution? There are two other important time frames we need to consider.
One is the rebuttal by the President’s supporters. The second is the 2020 campaign.
Handling Republican Rebuttal
To date, Republicans have offered no exculpatory evidence that might refute the conclusion that Trump is a traitor and a corrupt politician who needs to be removed. However, we should be prepared for them to try.
I think their main line of response will be that Trump was trying to stamp out corruption in Ukraine and he has always been suspicious of foreign aid. They have already weakly tried these arguments, but those attempts have tended to be drowned out by exclamations that the trial is a hoax and a witch hunt.
The main question then is what evidence is there that Trump has a policy of stamping out corruption, in Ukraine or anywhere. Can anyone put forward an internal policy memo or other document where the administration established this policy? How did they apply it to Ukraine before the question of releasing $391 million of security assistance came up?
Also, why were they trying to remove Ambassador Marie Yovanovitch? What evidence was brought against her that was used in removing her? [This could open a treasure trove for prosecutors, because it could point back to numerous ways Giuliani attacked her, which could be traced back to sources, maybe as far as Moscow.]
And then, how does this explain Trump’s other actions which weakened U.S. security, such as withdrawing troops from northern Syria or cancelling joint exercises with South Korea? Trump has a pattern of weakening U.S. interests. What is the Republican explanation of why he’s doing this? Why do all roads seem to lead to Putin if Trump is an innocent bystander in all these foreign policy debacles?
Trump might be allergic to foreign aid, but Congress specifically voted $391 million for Ukraine and Trump signed the bill. He might have gotten cold feet later, but he has a duty to see that the laws are faithfully executed. The law authorizing aid to Ukraine needed to be faithfully executed. But it wasn’t, and I’m not sure it even has been. A fair question for the impeachment managers to ask is, “How much aid out of $391 million has actually been delivered to Ukraine?” The public might be a bit surprised at the answer to that question.
As for the process arguments Republicans have used, the new reply is, “Well, he’s getting a fair trial in the Senate, isn’t he? It’s all run by the Republicans, so go talk to them about how unfair it is!”
Following Up After the Senate Trial
If the House properly prosecutes Trump in the Senate, it should be very easy to attack Republicans, especially Republicans in the House who defended Trump and ones in the Senate who voted to acquit him.
But I’d look hard for opportunities to show where they may be also influenced by Russia, especially where they are spouting Kremlin propaganda, like Sen. John Kennedy of Louisiana has done. I’d label these people “Kremlin Gremlins” and put their own words repeating Russian propaganda in every TV ad I could afford.
It’s true people want to hear solutions to problems. Fine, Democrats have solutions. But Republicans made Trump’s impeachment political. That was their strategy: to say it’s partisan and therefore illegitimate. But after Trump gets his trial in the Senate it isn’t political any more. He got to have his say. At that point, where Republicans stood on removing him is important. Did they stand up for Trump or did they stand up for the United States of America?
The Ask
Now that you’ve seen a complete strategy for prosecuting Trump in his Senate trial, are you willing to ask your Representative to make it real?
You may not agree with this approach or a specific part of it, but now is the time to press Congress to act. The people of the United States are asking the Senate to remove Trump from office. Congress needs to hear from you!
Poll
In each part of this series I’ve asked the same poll question: “What should House impeachment managers emphasize in the trial of Donald Trump in the Senate?” The combined results for the first three parts are as follows:
Treason 2.6%
Extortion (as an extension of bribery) 7.0%
Abuse of Power 11.3%
Obstruction of Justice 1.7%
Obstruction of Congress 7.0%
Some other high crime/misdemeanor 0.0%
All of the above 64.3%
I don’t back impeachment 5.2%
Other (see my comments) 0.9%
n = 115
Some poll takers possibly voted more than once by voting on different parts of the series. Thank you to everyone who took the poll!