Stephen Gottlieb: Kangaroo Court For Whitewash | WAMC

Stephen Gottlieb: Kangaroo Court For Whitewash

Jan 28, 2020

Republicans charge Democrats with trying to impeach Trump since the day he took office, never mentioning that Trump announced his intention to violate the Constitution’s prohibition on foreign corrupt influence, the emoluments clause, from day one. Democrats were apparently supposed to do their patriotic duty by lying down and rolling over. Now we’re involved in a trial of exactly what the clause prohibited – foreign corrupt influence, that affected our handling of national defense, and may have affected much more. Foreign corrupt influence is serious.

Unfortunately, the impeachment process as now planned looks like a kangaroo court. No witnesses, no cross-examination, no documents, no evidence. Only McConnell could get away with allowing president Trump, the defendant, to decide how he’s to be tried and who can testify – not based on rules of evidence but whatever the defendant wants to happen. No one, of course, would ever be convicted of anything if defendants could control whether anyone can testify, and, if so, who.

Evidence is admissible if it’s relevant unless barred by the Constitution, law or statutorily authorized Supreme Court rules. Evidence is relevant if “it make[s] a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” The Chief Justice, presiding, could rule on admitting evidence according to law. The existing process makes him into window dressing. McConnell, who organized this process, gets my vote for kangaroo-in-chief.

Republicans, following Trump’s lead, claim everything they dislike is fake news. They’ve denied so much so often that one can’t tell when they’re crying wolf. But, if there is a wolf, his den is at Mar-o-Lago.

The believability of testimony is enhanced by statutes which make it a crime to lie to Congress. Absent that, why believe anything Trump’s lackeys say, especially those who can hide behind the congressional privilege not to be tried for anything they say in Congress?

What I’ve been hearing instead of any responsible defense are attacks on impeachment, attacks on Democrats for turning to impeachment, attacks on the use of circumstantial evidence and a cauldron of invectives that one can fearlessly sling around as opinion. Republicans claim everything Democrats say is political. That garbage is reversible. If we focus only on motive, then everyone is guilty and all we get is cynicism. But there are facts – testimony, documents, science, records. Republicans respond by attacking the evidence as circumstantial, though circumstantial evidence is often more reliable than words that can be continually refashioned. And Republicans attack the absence of magic words about quid pro quo from the president’s mouth because no one that the President or the Senate Republicans would allow to testify heard the president use the magic quid pro quo words, and they barred those who heard him from testifying because Republicans don’t want those words on the record.

But that makes a mockery of the Constitution and the several clauses relating to impeachment, clauses the Founding Fathers took so seriously that they wrote five different impeachment clauses into the Constitution. Responding to serious and substantial allegations that call into question the loyalty of the president by attacking the Constitution’s prohibitions and remedies makes a mockery of the obligations of every officer of the U.S. Government, from the President down. It makes crying wolf and lying to everyone, into constitutionally protected misconduct. Thanks for the civics lesson, Mr. McConnell.

Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.

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