Why Neither Side Is Really Trying To Win This Trump Impeachment Trial

Below is my column in The Hill newspaper on the adoption of language and theories in the impeachment trial that has alienated key senators. Neither side appears to be tailoring their cases to secure bipartisan votes.

Here is the column:

It is the one unbreakable rule in litigation. You can insult the defendant or the opposing attorney and, on occasion, you might even insult the judge. But the one thing you can never do is insult the jury. That is only if you want to win a jury verdict, and that may be why both legal teams in the impeachment trial of President Trump seem more eager to get the goats of Senate jurors rather than their votes. Both sides seem to be striving for the constitutional equivalent of a hung jury, not enough votes for either a bipartisan acquittal or conviction, simply the status quo. What is different is that you usually do not actually hang the jury in a hung jury strategy.

The most riveting example this week was the argument of House Judiciary Committee Chairman Jerrold Nadler, who stood in the well of the Senate and appeared to accuse Republican senators of a conspiracy to “cover up” the wrongdoing of the president. It was a moment that produced an audible gasp from the room, along with a note from Senator Susan Collins complaining to Chief Justice John Roberts, who then promptly declared that “those addressing the Senate should remember where they are.”

The aspersions from Nadler alienated at least two of the four Republican senators that House impeachment managers are struggling to win over in their fight to call witnesses. In addition to Collins, Senator Lisa Murkowski was irate and denounced the comments by Nadler as soon as she walked off the floor. Murkowski later expressed skepticism about helping House managers to call witnesses they did not seek to compel during their own investigations. That is what happens when a prosecutor incorporates the jury into the list of accomplices in an ongoing conspiracy during trial.

House manager Adam Schiff produced further gasps when he repeated reports that the senators were warned that if they vote against Trump their heads “will be on a pike.” Collins and Murkowski were among those angrily responding to the “unnecessary” remarks. Other senators have had their own awkward moments. The House managers played a clip of Senator Lindsay Graham from the Clinton impeachment trial declaring, “What is a high crime? It does not even have to be a crime. It is just when you start using your office and you are acting in a way that hurts people, you have committed a high crime.” That statement of a hurtful standard for impeachment was meant to embarrass Graham. It certainly worked.

For its part, the White House could not get enough of old clips of Senator Charles Schumer promising to vote for acquittal before the Clinton trial was even scheduled. Schumer also opposed any witnesses or a full trial in the Clinton impeachment. It is clear that neither side seems to want the soul searching and unpredictable verdict of the classic movie “12 Angry Men.” Both teams want the status quo pushed by 100 angry senators.

With such attacks expected to increase, it is unsurprising that the Senate ordered that no cameras could show members listening to deliberations. The most relieved by the blackout may be Senator Robert Menendez, who was prosecuted more than two years ago by the Justice Department for alleged use of his public office for personal gain. Sound at all familiar?

The difference is that Menendez was given lucrative gifts by a campaign donor, and the donor received specific acts of support from Menendez. As the House managers described the horror of a public official using official powers to benefit himself, Menendez sat ready to convict Trump for the same charge he once faced in an actual criminal prosecution. The charges against Menendez were dropped after a mistrial due to a Supreme Court decision narrowing the definition of bribery in public corruption cases.

With the White House now taking over the Senate trial, the focus on the jury is likely to continue. Murkowski, who is being courted by both sides, could again find herself aggrieved by an argument from counsel if, as widely expected, the White House frames its case around an essentially discredited theory that an impeachment requires a criminal allegation.

In both the Clinton and Trump impeachment inquiries, I addressed that theory as historically and constitutionally unsupportable. Yet Harvard law professor emeritus Alan Dershowitz will make the argument as the core of the defense. It is a rather baffling decision given not only the rejection of the theory by Attorney General William Barr but also by the Democratic senators and many Republican senators. The White House is therefore making an argument that the vast majority of senators have rejected, including the Republican senators who are coming forward this week.

As an Alaskan, Murkowski may find one part of the Dershowitz argument particularly grating. In his book nearly two years ago, “The Case Against Impeaching Trump,” Dershowitz wrote, “Assume Putin decides to ‘retake’ Alaska, the way he ‘retook’ Crimea. Assume further that a president allows him to do it, because he believed that Russia has a legitimate claim to ‘its’ original territory. That would be terrible, but would it be impeachable? Not under the text of the Constitution.” Perhaps not the best case to sway her.

Why would these two legal teams pick arguments that insult senators? It is because neither side actually seems to be trying to change minds on the jury. The House managers declared Trump a “dictator” who won in 2016 with Russian assistance. It is a narrative that no Republican senator could embrace, but it is a case that plays well to audiences on mainstream cable networks. Conversely, claiming that everything Trump did is “perfect” is simply the type of narrative that few Democratic senators could adopt.

Ultimately, neither side seems to be trying to secure a bipartisan verdict. The senators are not just off screen. They are largely irrelevant to the trial strategies of both sides. Of course, mocking a jury has historically been a dubious strategy. Socrates famously ridiculed his jury and joked that his punishment should be free dinners for life. Instead, the irate jury ordered him to drink poisonous hemlock. My how things have changed. Indeed, this gives a new meaning to the Socratic technique in insulting the jury, leaving senators to drink their milk as they are made farcical exhibits by the two legal teams. It seems that what Socrates lacked was the Senate.

Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as a witness expert in the House Judiciary Committee hearing during the impeachment inquiry of President Trump.

22 thoughts on “Why Neither Side Is Really Trying To Win This Trump Impeachment Trial”

  1. The impeachment outcome is – and has been – very clear. There is no way that 67 of these Senators will vote to convict Trump. So the Democrats are making the best case they can to get voters to select their presidential candidate in November.

    The Republicans are just gritting their teeth hoping to get through this without seeming to be too sleazy, and trying to justify their backing Trump all the way. After all, many Republicans will be running for re-election in November themselves

  2. What need of bipartisan votes? President Trump has the majority of the GOP minus RINOs, The Socialists cannot same the same when you minus their losses. The President, more importantly has the support of the same largest voting block that gave him the lead in 2016 no minus there it only plusses.

    Bipartisan and cross partisan is just a leftist term for cave to the left just as conservative and liberal are socialist leftist terms for people they don’t like and one of the names they hide behind.

    Constitutionalism vs socialism

  3. When something is written in a document, it MUST be taken at face value. Only liberals attempt to interpret it to support their own views – Treason, Bribery and other high crimes and misdemeanors is NOT open to interpretation but “legal experts” and scholars. It is to be followed as written.

    1. Go on junior: Your theory of statutory interpretation is less than astute.

      It’s literally Alice in Wonderland : “You should say what you mean,” the March Hare went on. “I do,” Alice hastily replied; “at least-at least I mean what I say-that’s the same thing, you know.”

  4. In the end, the “So what, get over it” defense will win, Moscow Mitch had it made and ready to serve the minute it started. He knew as did Barr that Bolton would tell the truth. Trump’s politics has and will be a sh*t sandwich, and his cult will eat it up and yell at the top of their lungs that Trump’s sandwiches are the best in the world.

    1. Fish, typical Millennial, does not realize even if President Trump’s election is veto’d by RINOs, VP Pence becomes #46, and November 2020 we will still elect President Trump as #47, rather than two term #45.

      you want “more free stuff” – please do a Go-Fund-me so you can get a oneway ticket to the Socialist utopia – Venezuela

  5. Schiff:. He’s 34 and drinking in honky tonks. Kicking hippie’s arses and raising Hell.

  6. I’m not clear how Turley can conclude the President’s defense strategy after just 2 hours of their presentation. What I saw from his team on Saturday was everything the House managers were not; factual, professional, articulate, concise and considerate of the Senator’s time and attention.

  7. My understanding is that Dershowitz is offering one of any number of defenses by the defense team. You can simply say that even if you accept what the managers have stated as fact, you’re not anywhere near the realm of impeachment here, and you’d be correct. But there are some political considerations to this impeachment process, as the Democrats have amply demonstrated.

    After all, as Shiff stated during his so-called impeachment case: “We are fighting the Russians in Ukraine so we don’t have to fight them here.” I’m still waiting for the North Vietnamese to invade California.

  8. there will indeed be massive retribution against Republican Senators if they defect. they either go along with the seditious attempt or not.

    1. Yes Mr Kurtz – a simple reading of the impeachment clause shows that the typical Millennial, does not realize even if President Trump’s election is veto’d by RINOs, VP Pence becomes #46, and November 2020 we will still elect President Trump as #47, rather than two term #45.

  9. JT, have you identified your confirmation bias? Wait for the case. You have seen the pilot episode, but you haven’t seen the full feature. We have seen the House managers insult and lie to the Senators. Now, let the President finally have a defense.

    1. Paul admits he gets his news from YouTube and Facebook. Might as well be from the guy loudly cursing passing pedestrians on Broadway.

      1. Paul, it is so confusing to read An8n – Ginn – Burnthebook – WTF!

        They all read the same and their need for attention under fake profile names is exhausting.

        Where is that Arizona man who sets cars on fire? Send him to Gaimesville!

        1. spete17 – which one? Still, if you are paying I am sure you can hire an illegal for day work. Not sure about travel expenses. 😉

  10. Professor, with all due respect what world are you leaving in? There is no interest of the part of the Republicans to vote their favorite distractor out of office. Democrats have made the case; Republicans have made it clear that they aren’t even listening..

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