Impeachment 2020

Impeachment

Because we are all well versed in the presentation of the prosecution since this trial is a reiteration of the House impeachment proceedings, I have taken the approach of using the defense brief as a structural guide.  I shared the full 171 page document a few days ago. Although I don’t have a vote, I’m sure you can imagine that I have an opinion. I’ve watched much of the proceedings and have consumed hours of analysis in addition to the text of this brief.

Read the Full Defense Brief Here at WSJ

Were I a United States Senator, here is where I’d stand today.

As often as possible, I either “AGREE” or “DISAGREE” with the specific exposition of the text. NOTE THAT MY “AGREEMENT” OR “DISAGREEMENT” IS NOT WITH THE HEADLINE, BUT WITH THE PRESENTATION OF THE ARGUMENT IN THE SPECIFIC SECTION of the text. Thus my disagreement may be with the reasoning, even if I would otherwise stipulate the facts. Further, there may be a single word, clause or sentence with which I agree or disagree that may cause me to accept or reject the entire argument.

These high level assessments don’t indicate any cardinality or take weight into account. One “DISAGREE” may be equal in overall importance to me as five “AGREE”s. (You’ll also notice that some sections I disregard out of hand and have them marked with NA).

Contents of Defense Brief

I. The Articles Fail to State Impeachable Offenses as a Matter Of Law.............................. 24 AGREE

A. House Democrats’ Novel Theory of “Abuse of Power” Does Not State

an Impeachable Offense and Would Do Lasting Damage to the

Separation of Powers. ........................................................................................... 24 AGREE

1. House Democrats’ Novel Theory of “Abuse of Power” as an Impeachable Offense Subverts Constitutional Standards and

Would Permanently Weaken the Presidency............................................ 24 DISAGREE

(a) House Democrats’ Made-Up “Abuse of Power”

Standard Fails To State an Impeachable Offense

Because It Does Not Rest on Violation of an

Established Law. ........................................................................... 25 DISAGREE

(b) House Democrats’ Unprecedented Theory of

Impeachable Offenses Defined by Subjective Intent

Alone Would Permanently Weaken the Presidency. .................... 27 AGREE

2. House Democrats’ Assertions that the Framers Particularly

Intended Impeachment to Guard Against “Foreign Entanglements” and “Corruption” of Elections Are Makeweights that Distort History............................................................. 33 DISAGREE

B. House Democrats’ Charge of “Obstruction” Fails Because Invoking Constitutionally Based Privileges and Immunities to Protect the

Separation of Powers Is Not an Impeachable Offense.......................................... 35 AGREE

President Trump Acted Properly—and upon Advice from the Department of Justice—by Asserting Established Legal

Defenses and Immunities to Resist Legally Defective Demands

for Information from House Committees. ................................................ 37 AGREE

(a) Administration Officials Properly Refused to Comply

with Subpoenas that Lacked Authorization from the

House. ........................................................................................... 37 AGREE

(i) A Delegation of Authority from the House Is

Required Before Any Committee Can

Investigate Pursuant to the Impeachment Power. ............. 37 AGREE

(ii) Nothing in Existing House Rules Authorized

Any Committee to Pursue an Impeachment

Inquiry. .............................................................................. 39 AGREE

(iii) More Than 200 Years of Precedent Confirm that

the House Must Vote to Begin an Impeachment

Inquiry. .............................................................................. 40  DISAGREE

(iv) The Subpoenas Issued Before House Resolution

660 Were Invalid and Remain Invalid Because

the Resolution Did Not Ratify Them. ............................... 41 AGREE

(b) The President Properly Asserted Immunity of His

Senior Advisers from Compelled Congressional

Testimony. .................................................................................... 43 AGREE

(c) Administration Officials Properly Instructed Employees

Not to Testify Before Committees that Improperly

Excluded Agency Counsel............................................................ 46 AGREE

Asserting Legal Defenses and Immunities Grounded in the Constitution’s Separation of Powers Is Not an Impeachable

Offense. ..................................................................................................... 47 AGREE

(a) Asserting Legal Defenses and Privileges Is Not

“Obstruction.” ............................................................................... 47 AGREE

(b) House Democrats’ Radical Theory of “Obstruction”

Would Do Grave Damage to the Separation of Powers. .............. 48 AGREE

(c) The President Cannot Be Removed from Office Based

on a Difference in Legal Opinion. ................................................ 54 AGREE

II. The Articles

Precedent and Denied the President Constitutionally Required Due Process. ................. 55 DISAGREE

A. The Purported Impeachment Inquiry Was Unauthorized at the Outset

and Compelled Testimony Based on Nearly Two Dozen Invalid

Subpoenas. ............................................................................................................ 56 AGREE

B. House Democrats’ Impeachment Inquiry Deprived the President of

the Fundamentally Fair Process Required by the Constitution............................. 57 DISAGREE

1. The Text and Structure of the Constitution Demand that the

House Ensure Fundamentally Fair Procedures in an Impeachment Inquiry. ............................................................................... 58 AGREE

(a) The Due Process Clause Requires Fair Process............................ 58 AGREE

(b) The Separation of Powers Requires Fair Process. ........................ 60 DISAGREE

(c) The House’s Sole Power of Impeachment and Power to

Determine Rules of Its Own Proceedings Do Not

Eliminate the Constitutional Requirement of Due

Process. ......................................................................................... 61 DISAGREE

2. The House’s Consistent Practice of Providing Due Process in Impeachment Investigations for the Last 150 Years Confirms

that the Constitution Requires Due Process.............................................. 62 DISAGREE

3. The President’s Counsel Must Be Allowed to Be Present at

Hearings, See and Present Evidence, and Cross-Examine All Witnesses. ................................................................................................. 66 DISAGREE

4. The House Impeachment Inquiry Failed to Provide the Due

Process Demanded by the Constitution and Generated a Fundamentally Skewed Record that Cannot Be Relied Upon in

the Senate. ................................................................................................. 67 DISAGREE

(a) Phase I: Secret Hearings in the Basement Bunker........................ 67 NA

(b) Phase II: The Public, Ex Parte Show Trial Before

HPSCI ........................................................................................... 69 NA

(c) Phase III: The Ignominious Rubber Stamp from the

Judiciary Committee ..................................................................... 70 NA

C. The House’s Inquiry Was Irredeemably Defective Because It Was

Presided Over by an Interested Fact Witness Who Lied About Contact

with the Whistleblower Before the Complaint Was Filed. ................................... 74 AGREE

D. The Senate May Not Rely on a Factual Record Derived from a Procedurally Deficient House Impeachment Inquiry. .......................................... 75 DISAGREE

E. House Democrats Used an Unprecedented and Unfair Process

Because Their Goal to Impeach at Any Cost Had Nothing To Do with

Finding the Truth. ................................................................................................. 75 DISAGREE

A. The Evidence Refutes Any Claim That the President Conditioned the

Release of Security Assistance on an Announcement of Investigations

by Ukraine............................................................................................................. 81 AGREE—without further witnesses

1. The July 25 Call Transcript Shows the President Did Nothing

Wrong. ...................................................................................................... 81 AGREE—the single text provides no evidence to the charges

2. President Zelenskyy and Other Senior Ukrainian Officials Confirmed There Was No Quid Pro Quo and No Pressure on

Them Concerning Investigations. ............................................................. 84 DISAGREE

3. President Zelenskyy and Other Senior Ukrainian Officials Did

Not Even Know that the Security Assistance Had Been Paused. ............. 85 DISAGREE

4. House Democrats Rely Solely on Speculation Built on Hearsay. ................................................................................................................... 87 DISAGREE

5. The Security Assistance Flowed Without Any Statement or Investigation by Ukraine........................................................................... 89 AGREE—with the fact but not the argument

6. President Trump’s Record of Support for Ukraine Is Beyond

Reproach. .................................................................................................. 89 NA

B. The Administration Paused Security Assistance Based on Policy

Concerns and Released It After the Concerns Were Satisfied.............................. 90 DISAGREE—nothing indicates that an investigation proved Ukraine is no longer corrupt

1. Witnesses Testified That President Trump Had Concerns About Corruption in Ukraine. .............................................................................. 91 AGREE

2. The President Had Legitimate Concerns About Foreign Aid Burden-Sharing, Including With Regard to Ukraine. ............................... 91 DISAGREE, no proof of this

3. Pauses on Foreign Aid Are Often Necessary and Appropriate................. 93 AGREE

4. The Aid Was Released After the President’s Concerns Were Addressed. ................................................................................................. 94 DISAGREE

C. The Evidence Refutes House Democrats’ Claim that President Trump

Conditioned a Meeting with President Zelenskyy on Investigations.................... 96 AGREE-strictly based on transcript and no further witnesses.

1. A Presidential Meeting Occurred Without Precondition. ......................... 96 AGREE

2. No Witness with Direct Knowledge Testified that President

Trump Conditioned a Presidential Meeting on Investigations. ................ 97 AGREE—other witnesses may undermine this assertion.

D. House Democrats’ Charges Rest on the False Premise that There

Could Have Been No Legitimate Purpose To Ask President Zelenskyy

About Ukrainian Involvement in the 2016 Election and the Biden-

Burisma Affair. ..................................................................................................... 98 DISAGREE

1. It Was Entirely Appropriate for President Trump To Ask About

Possible Ukrainian Interference in the 2016 Election............................... 99 AGREE

2. It Would Have Been Appropriate for President Trump To Ask

President Zelenskyy About the Biden-Burisma Affair........................... 102 DISAGREE—legal but inappropriate

IV. The Articles Are Structurally Deficient and Can Only Result in Acquittal. .................. 107 DISAGREE

A. The Constitution Requires Two-Thirds of Senators To Agree on the

Specific Act that Is the Basis for Conviction and Thus Prohibits

Duplicitous Articles. ........................................................................................... 107 DISAGREE

B. The Articles Are Unconstitutionally Duplicitous. .............................................. 109 DISAGREE

THE ARTICLES SHOULD BE REJECTED AND THE PRESIDENT SHOULD IMMEDIATELY BE ACQUITTED. ...................................................................... 24–DISAGREE

***************************MY VOTE**********************************

1.       Would I vote to hear witnesses?

                Yes, on Article 1:  I would vote to hear Joe Biden, Pompeo, Bolton, and Mulvaney.

                No, on Article 2: which I view as a competition of procedural arguments and I thoroughly reject   as a reason for conviction.

                If a witness provides verifiable and undeniable proof of the following, then I would still not              convict:

A.      A quid pro quo in which the President specifies investigation into 2016 Ukrainian interference in our 2016 election

B.      A quid pro quo of in which the President specifies investigation into Ukrainian government  corruption, including illegal ties to private business (unspecified)

                If a witness provides verifiable and undeniable proof of the following, then I would would be on    the fence:

A.      A quid pro quo in which the President specifies investigation into Burisma by name, or Hunter Biden by name.

               

                If a witness provides verifiable and undeniable proof of the following, then I would be compelled to convict, as it undermines most of the defense arguments:

A.      A quid pro quo in which the President specifies investigation into Joe Biden by name.

2.       If that vote fails, based on all the evidence that has been presented, would I vote to convict

A.      No on Article 1.

B.      Absolutely no on Article 2.

C.      If my vote in 1 fails and my vote in 2 holds:

                I would introduce/support a bill to censure based on Article 1: As a precedent that the behavior butts up to the thresholds for ethics but does not reach criminality, treason, bribery, high crimes       or misdemeanors.