Will Trump Testify At His Second Impeachment Trial?


          Although the second impeachment trial of Donald Trump has yet formally to begin, I can say this much: The House managers’ impeachment trial brief wins my vote as the better of the two briefs filed.            

           First a word on process.

          An impeachment trial is unlike a court trial. There aren’t settled rules of procedure. There aren’t even rules of evidence. Indeed, even precedent counts for little. And there is no appeal, the doings before Congress being regarded by the Supreme Court as quintessential political questions over which the courts have no jurisdiction.

          An impeachment begins when the House of Representatives votes Articles of Impeachment. Once that occurs, the Senate has the responsibility to trying the case. It takes a two-thirds vote of the Senate to convict.

          Trump has been charged with high crimes and misdemeanors, to wit, inciting insurrection in his conduct before and on January 6, 2021, by whipping up a false narrative about a stolen election, and then encouraging rioters to disrupt the work of Congress as it counted the votes of the Electoral College.

         The charges against the former president will be presented by so-called House managers, serving as the functional equivalent of prosecutors. Trump is represented by the lawyers of his choice.

          Both sides submitted briefs to orient the Senate on what they think the important issues are in the trial.

          Trump’s brief was just that – brief. It is the right of defendants to say little prior to a trial. That’s tactically wise. Trump has no burden of proof here. The House managers have to prove their case to the satisfaction of the Senate “jurors.” The House managers have, as lawyers like to say, the burden of production and the burden of proof, although just what the standard for conviction is remains opaque – is it the criminal law’s proof beyond a reasonable doubt, the less exacting standard of clear and convincing evidence, or mere preponderance?

          The trial briefs summarize what the parties think of the legal issues the Senate must decide before getting to the evidence. They also comment on the evidence they expect to see at trial.

          Trump focused solely on legal issues, arguing procedural defects and jurisdictional questions, such as whether a former president can be subject to impeachment.

          The House managers’ brief lays waste to the legal claims. There is no requirement that the Chief Justice preside over the trial of a former president. And, I am persuaded, there is no barrier preventing trial of a former president. I was persuaded by the managers’ brief that a former president could be impeached, even if the only remedy for such an impeachment is a barrier to serving in office at some future date. Absent impeachment, a scoundrel could bury his tracks, or commit an impeachable offense, on the last day of office and avoid judgment or consequence merely because he left office. We have held impeachment trials for officials after they left office. Issue decided, at least in my view.         I am less persuaded that the facts favor impeachment.

        Yes, the House managers’ brief presents the terrifying spectacle of a mad Caligula directing an enraged crowd to the Capitol, where, but for the cunning of security officials, death and serious injury of elected officials looked certain. But the brief seems overwritten, high schoolish in a precious sort of way. Trump used incendiary rhetoric, but to convict him on this rhetoric would make pep rallies into crimes when events turn violent in the parking lot of tomorrow’s ballgames.

          The boldest stroke in the House managers’ briefs is the assertion that the president enjoys fewer, rather than equal, or arguably greater, first amendment protection for his speech than does a private citizen. High officials are stewards of the public trust, the argument goes. The first amendment protects private citizens from censorship by government, it does not immunize those who govern from the consequences of improvident speech.

        Maybe. Were I a Senator, after reading the briefs, I’d listen more closely to the evidence set to begin next week than I would otherwise have done. To the Senate is given the responsibility of sitting in judgment over a president when he is alleged to have engaged in conduct threatening the ongoing functioning of the republic. Our transitions of power from one president to the next have been peaceful for centuries: 2021 is a blemish.            

          The briefs don’t address the question of whether Trump will, or should, testify. Candidly, were I his lawyer, I would recommend against it. He is a train wreck waiting to happen. But I am not his lawyer, and he has always spurned the cautious approach. He could well decide to take his case directly to the people at the hearing. Query: Would the Senate give him the stage, or would the Senate hold that session, the session involving his testimony, in secret? Again, there are no rules here about how the Senate can proceed.

          I never worried once throughout the four years Trump was in office about the fate of the free world. Trump was no threat to democracy: that’s hyperbolic nonsense. And January 6, 2021 was no coup attempt, not even close. At worst, a rabble was roused by a man who abused his bully pulpit. Order was quickly restored when the crowd realized that the would-be emperor was naked.

           But I will lose a little sleep and suffer anxiety if I see Trump take the witness stand. There’s no telling what he’ll do or say to a divided nation.

          He’s always been a canary in the mineshaft singing for his life. Millions of distressed Americans heard him, and responded to his tweets. What will those folks do when they see the canary breathing his last? The fumes that kill him -- a broken nation, a failed state, a society riven by mutually exclusive claims about identity entitlement – those fumes can kill a man, and a people.

          I hadn’t planned on watching next week’s impeachment trial. Now I am not so sure.          

           I don’t see Trump convicted at next week’s trial. I see a largely partisan vote, with a few Republicans joining every Democrat in voting to convict, maybe 60of the 67 votes needed for impeachment. But what if Trump takes the stand and plays Nero in a burning Rome?

          That might tilt the scales in favor of conviction.

          All bets are off should he testify. 

Comments: (1)

  • Who's next
    Dems have a narrow edge in current (117th) Congress. The party not in the WH almost always makes big gains in the off-year election. If the GOP recaptures the House, I say let's impeach Clinton again, along with Obama (FISA abuse should suffice), and Carter (malfeasance during the hostage crisis). There would appear to be nothing in the Constitution prohibiting LBJ (Vietnam), FDR (EO 9066), Wilson (racism), and Jackson (ignoring the SCt's Worcester decision) from being impeached. We could also add Taney (for Dred Scott), Holmes (for Buck v. Bell), Douglas (for penumbras), and even John Marshall for failing to recuse himself from Marbury.
    Posted on February 5, 2021 at 12:51 am by George Ferko

Add a Comment

Display with comment:
Won't show with comment:
Required:
Captcha:
Number of states in the U.S.
*Comment must be approved and then will show on page.
© Norm Pattis is represented by Elite Lawyer Management, managing agents for Exceptional American Lawyers
Media & Speaker booking [hidden email]