‘This is how autocracy comes to America’ … An unconstitutional verdict of acquittal by a roll-call vote in the Senate

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The House managers have been treating the Senate impeachment trial as a solemn judicial proceeding, just as the Founding Fathers intended.

To paraphrase Mark Sumner at Daily Kos, the House managers have been presenting a master class of an impeachment prosecution:

For anyone tuning in from outside the Senate, Schiff’s opening was a master class in getting across complex information. Despite the volume of material on events and individuals, Schiff moved from point to point with precision, delivering information in a speech that’s likely to appear in future textbooks. Even for those who had seen the facts presented in House hearings, he was simply compelling. For anyone watching—whether or not they knew the facts of the case coming in—it was spellbinding work: a scene straight out of the best courtroom dramas.

Following Schiff’s introduction of the facts, the House team worked through events in a timeline, starting with the smear campaign to unseat U.S. Ambassador to Ukraine Marie Yovanovitch, and proceeding to the whistleblower, congressional investigations, and the eventual release of U.S. aid that had been allocated to Ukraine. Each presenter took a section of the timeline, mixing a recitation of facts with snatches of testimony.

Or as Politico reported, Dems unload ‘overwhelming’ impeachment case on the Senate — even as they press for more:

One by one, the seven House impeachment prosecutors seeking President Donald Trump’s removal from office reconstructed a case against the president so dense — at times, head-scratchingly complex — that it was hard for senators new to the material to keep up.

After a lofty introduction by the House’s lead manager, Rep. Adam Schiff (D-Calif.), Democrats shed any pretense of offering a streamlined, made-for-TV version of events meant to captivate the Senate or the nation. For much of the day, they cast aside any attempt to make a narrowly tailored case to Republicans that they should support calls for additional witnesses.

Instead, they decided to hammer senators with everything they had: an all-day torrent of intricate information, peppered with screenshots of deposition transcripts, emails, text messages and about 50 video clips — nearly three times more than House Republicans used during the entirety of their arguments in the 1999 Clinton trial.

It was a presentation that seemed designed to demonstrate what Democrats have long professed: that the facts of the Ukraine scandal threatening Trump’s presidency are so overwhelming as to be almost infallible.

[W]hat followed was a painstaking chronology of Democrats’ case that Trump pressured Ukraine to investigate his political rivals and obstructed Congress’ investigation of the alleged scheme.

The disingenuous Republican talking point to this overwhelming evidence is that “I have heard nothing new,” which was belied by Sen. John Kennedy (R-La.), who admitted that “Nine out of 10 senators will tell you they haven’t read a full transcript of the proceedings in the House … And the 10th senator who says he has is lying.”

For most Republicans, it was probably the first time they had actually heard the evidence outside of the Epistemic closure of the ‘conservative misinformation feedback loop’ media bubble. Democratic senators responded to the disingenuous GOP talking point with “if Republicans want to learn something new, they should vote to bring in witnesses.” Republicans Blocked Witnesses At The Impeachment Trial, And Now They Say There’s Nothing New.

And this was if Republican Senators were even listening at all. After complaining that House Judiciary Committee chairman Jerrold Nadler violated the decorum rules of the Senate by accusing GOP senators of being complicit in a cover-up — an indisputable true fact — Republicans are openly showing their disdain for the Senate rules of the impeachment trial and the solemnity of the proceeding, while Chief Justice John Roberts remains silent.

Sen. Rand Paul, R-Ky., appeared to be either drawing or tracing a sketch of the U.S. Capitol, and Sen. Marsha Blackburn was spotted reading a book and underlining a passage in it. GOP senators turn to ‘fidget spinner’ toys during Trump impeachment trial:

During Wednesday’s proceedings, some senators milled around during arguments by lead manager Rep. Adam Schiff, D-Calif., and Sen. Rand Paul was spotted with a hidden crossword puzzle in his papers.

Restless senators, sitting through endless hours of the impeachment trial of President Donald Trump, now have an outlet: Fidget spinners.

Sen. Richard Burr, R-N.C., handed out the toys to several of his fellow senators in the chamber before Thursday’s trial proceedings got underway.

The presence of the toys — which might be is a violation of Senate rules that senators must sit silently and listen to arguments during an impeachment trial — could be seen as a sign of some Republicans’ disdain for the Democratic presentation of their case against Trump at the trial.

A large bloc of Republican Senators reportedly skipped large portions of Wednesday’s impeachment trial, flouting Senate rules requiring them to remain in their seats at all times during the proceedings. ’21 Empty Seats’: More Than One-Third of GOP Senators Reportedly Left Room During Schiff’s Speech:

That means more than one-third of 53 Republican senators tasked with deciding the president’s fate all missed the same segment of the historic trial. Among those absent from the action “for a long time” were Sens. Lindsey Graham (R-S.C.), Bill Cassidy (R-La), and Jim Risch (R-Idaho).

I assure you that in an actual trial in a court of law, these Senators would all have been first admonished by the Chief Justice, and then held in contempt of court on their next violation of the rules. But Chief Justice John Roberts just sits there like a potted plant, allowing Republicans to make a mockery of this impeachment trial.

Which brings me to this interesting legal analysis by Paul Savoy, a former prosecutor in the office of the Manhattan District Attorney, at The Atlantic. An Impeachment Trial Without Witnesses Would Be Unconstitutional:

In December, Donald Trump became only the third U.S. president to be impeached. If Senate Majority Leader Mitch McConnell succeeds in his intention to prevent any witnesses from testifying, Trump will become the first president to be acquitted by an unconstitutional impeachment process.

McConnell has created the mistaken impression that the Constitution does not provide any guidance about the impeachment process, and that the procedures for the trial—including motions to call witnesses—can be determined by a majority vote. Although the Senate has broad discretion to set the rules for the trial, Supreme Court Justice Byron White, in a concurring opinion in Nixon v. United States (1993), a case involving the impeachment of federal Judge Walter Nixon, found in the impeachment-trial clause of Article I, Section 3 of the Constitution a limitation on the method by which the Senate can conduct an impeachment proceeding. The text of the clause states, “The Senate shall have the sole Power to try all Impeachments.” Justice White interpreted the word try to mean that the impeachment proceeding must be in the nature of a judicial trial, and concluded that “a procedure that could not be deemed a trial by reasonable judges” would be unconstitutional.

White found support for his conclusion in the Framers’ understanding of the impeachment process, particularly the arguments by Alexander Hamilton, the delegate to the Constitutional Constitution who devoted the most attention to the impeachment function of the Senate. Contrary to McConnell’s assertion that impeachment is actually a “political process” and that “there’s not anything judicial about it,” Hamilton described the Senate in “Federalist No. 65” as possessing a “judicial character as a court for the trial of impeachments,” and in “Federalist No. 66,” he repeatedly referred to the Senate as “a court of impeachments.”

There is a widespread assumption among Americans that it is perfectly legitimate for the trial to be conducted as a no-holds-barred partisan battle, with senators voting along party lines, rather than impartially deciding the merits of the case. This is contrary to the Framers’ intent. Hamilton regarded the upper chamber as “the most fit depositary” for the impeachment trial because it provided “the necessary impartiality between an individual accused, and the representatives of the People, his accusers.”

The choice of the Senate made sense for the Framers, who contemplated a republic without strong parties and a Senate whose members —elected by state legislatures until the Seventeenth Amendment was ratified in 1913—were expected to function in a less partisan, more deliberative, and wiser manner than their popularly elected counterparts in the House. The impeachment oath, which requires senators to “do impartial justice,” is not a quaint ritual to be performed with a wink and a nod, but a procedure required by the Constitution because the Framers intended the impeachment proceeding to be run much like a judicial trial.

Senators are thus constitutionally bound to follow what Justice White described as “a set of minimal procedures.” His opinion does not specify their exact contours, except to say that they must be the kinds of procedures a reasonable judge would regard as necessary components of a court trial. Because no reasonable judge would refuse to allow witnesses with personal knowledge of the facts to testify in an ordinary trial, it is the Constitution itself that establishes the right of House managers to call witnesses such as former National Security Adviser John Bolton and Acting White House Chief of Staff Mick Mulvaney. Both men are thought to have firsthand knowledge of the president’s purpose in holding up congressionally approved military assistance to Ukraine after a phone call in which Trump asked the country’s newly elected president, Volodymyr Zelensky, to investigate Joe Biden and his son Hunter.

* * *

In addition to Bolton and Mulvaney, House managers want to call Robert Blair, a senior adviser to Mulvaney, and Michael Duffey, a top official in the White House Office of Management and Budget who, at the direction of the president, ordered the hold on the military assistance 90 minutes after the phone call. The nonpartisan U.S. Government Accountability Office has ruled that even if the president withheld the aid for national-policy reasons, rather than for personal political gain, his action violated the Impoundment Control Act because the president cannot substitute his own policy priorities for those of Congress.

New documents provided on January 14 to the House Intelligence Committee by Lev Parnas, an indicted former associate of Trump’s personal lawyer Rudy Giuliani, will increase pressure on Republican senators to allow additional testimony and evidence, including testimony from Parnas himself, because they demonstrate how much remains unknown.

Or maybe not.

Even if McConnell, in the face of this new evidence, can prevent the defection of more than three Republican senators, a majority vote of the Senate cannot validate the unconstitutional exclusion of witnesses from an impeachment trial. If Republicans succeed in preventing House managers from calling witnesses with firsthand knowledge of relevant facts, an acquittal of the president will be unconstitutional. Given that a majority of the Supreme Court in Nixon ruled that a Senate impeachment trial is not subject to judicial review, the question remains, if the courts cannot overturn a Senate verdict, what are the legal consequences of an unconstitutional acquittal?

An answer is provided by a momentous opinion of the Justice Department’s Office of Legal Counsel (OLC), which is responsible for providing the president with “controlling advice” on questions of law. The relevant OLC opinion is the same one that furnished the basis for Special Counsel Robert Mueller’s conclusion that he was prohibited from prosecuting Trump before he left office, even if there was overwhelming evidence that the president had committed serious crimes.

The OLC opinion, written in 2000 by then–Assistant Attorney General Randolph Moss, explains that the reason prohibiting the prosecution of a criminally culpable president does not violate the “important national interest in ensuring that no person—including the President—is above the law” is because “the constitutionally specified impeachment process ensures that the immunity would not place the president ‘above the law.’”

If the impeachment process conducted by the Senate is unconstitutional, the unavailability of either criminal prosecution or a legitimate impeachment trial as a means of presidential accountability, according to the OLC opinion’s own reasoning, would “subvert the important interest in maintaining ‘the rule of law.’”

An unconstitutional verdict of acquittal would present Americans with something far worse than a constitutional crisis. The nation will have blundered its way into creating an accidental autocracy governed by a president who, even if not reelected, would remain in office until January 20, 2021, beyond the reach of the rule of law.

“Wherever law ends, tyranny begins,” John Locke cautioned in his Two Treatises of Government. This is how autocracy comes to America: not with a declaration of martial law and tanks in the street, but by a roll-call vote in the Senate whipped by the leader of the Senate in violation of the Constitution.

If on the day the Senate returns its verdict, history records the failure to convict the president following a trial without witnesses, that will be the day the rule of law dies in America. The courts will remain open for business. Congress will be in session. Citizens will still be able to vote. And a free press will continue to launch withering attacks on President Trump. But the American people will no longer be living in a constitutional democracy.

Doctor Steven Jonas correctly noted in his 2015 essay, Fascism in the 21st Century:

When we are looking at 21st century fascism, in the context of what is happening in certain of the capitalist states, at the present particularly in the United States, it should be noted that it is entirely possible that wholesale violence will not be required for its introduction. Nor will a maximum leader necessarily be required. Like the fog in the famous, ultra-short poem by the U.S. person Carl Sandburg, it may well come in “on little cat feet.”

Fascism can gradually creep in over time little noticed, until it is too late. Resist!