“Much To Do About Nothing”: The Withdrawal Of The Lee Claim Has “Much To Do” With A Glaring Flaw In The House Case

At the end of its first day of argument, the Senate trial was thrown into chaos when a “juror” stood up like a scene out of Perry Mason to contest the veracity statements made by “prosecutors.” That moment came as the Senate was preparing to end for the day and Senator Mike Lee (R., Utah) jumped to his feet to object that a quote by House manager Rep. David Cicilline (D., R.I.) was false. Lee should know. They were purportedly his words.  After a frenzy on the floor and a delay of proceedings, lead House manager Rep. Jamie Raskin (D., Md) announced that it would withdraw Cicilline’s statements and that “this is much ado about nothing, because it’s not critical in anyway to our case.” In reality, it had much to do about the manager’s case and highlights a glaring problem in its case.  The House has elected to try this case of incitement of insurrection largely on circumstantial evidence and using media reports rather than witness testimony. It is trial by innuendo and implication rather than direct evidence of what Trump knew and intended on January 6th.

Raskin added that “So we’re happy to withdraw it on the grounds that it is not true and we are going to withdraw it this evening without any prejudice to the ability to resubmit if possible and then we could debate it if we need it.” It is not clear if the House will contest Lee’s point further on the second day of argument. However, such problems arise when you chose to litigate a case based on news reports as opposed to actual testimony.

Lee was aggrieved by Cicilline quoting him as to what Trump said in a conversation with Sen. Tommy Tuberville (R-Ala.) on Jan. 6. Trump mistakenly called Lee, who handed over the phone to his colleague.  Here is what Cicilline said in part: “Sen. Lee described it …Sen. Lee then confirmed that he stood by as Sen. Tuberville and President Trump spoke on the phone. And on that call, Donald Trump reportedly asked Sen. Tuberville to make additional objections to the certification process.”

That does not appear to true if the suggestion is that Lee confirmed that content of the call in the article. The source for the House managers was a story in Deseret News that only describes the miscall and awkward moment before Lee grabbed back his phone. Tuberville stated that he did not recall much of the brief call, but the article also states that Lee told the newspaper that when “Lee said when he later asked Tuberville about the conversation, he got the impression that Trump didn’t know about the chaos going on in the Senate chamber.” The House managers left out that part which directly contradicts its narrative that Trump knew about the riot and was relishing it as he was calling to further delay the electoral certification. If true, the House’s timeline argument would lose coherence, if not collapse entirely. The House repeatedly argued that Trump wanted the riot and then used its to delay the proceedings.  Yet, this call occurred  “shortly after 2 pm” and, according to Lee, Trump did not appear to the senator to be aware of the extent of the chaos. A few minutes later, at 2:38, Trump tweets, “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!”

The main problem with the Lee objection however is that it highlights what is missing in the House case: witness testimony. I have been a critic of the House for using what I called a “snap impeachment” without even one day of hearings, investigation, or a formal opportunity for the President to respond.  It could have easily held a couple days of impeachment and still impeached Trump before he left office.  The House had from Jan. 6th to Jan. 20th to do so.  However, what is even more disturbing is what came next. Nothing at all. the House had weeks to call witnesses to lock in their testimony and create the public record missing in its impeachment. As with the first impeachment, it rushed through the vote as an urgent matter and then did nothing. It did not send the article to the Senate and it did not call witnesses before any committees. Even if the snap impeachment were justified, the failure to create a record after the vote was not.

The House knew that it would be difficult to get witnesses in the Senate. After all, such witnesses were denied in the first trial and even with Clinton (with the Republicans in control) only a couple of depositions were allowed by the Senate.

In the meantime, former officials were giving public interviews on what Trump said and did during these critical hours. They clearly could be called to testify since they were already speaking publicly.  This includes witnesses who could speak to the request for National Guard support like former Acting Secretary of Defense Chris Miller and his two closest aides, Kashyap “Kash” Patel and Ezra Cohen, and U.S. Capitol Police chief Yogananda D. Pittman. (Pittman gave non-public testimony on the riot itself). There is at least a dozen such officials who could have been called to lock in their testimony and give direct testimony on the underlying facts. The House could also have asked for confirmation of statements like those attributed to Senators Tuberville and Lee. Yet, the House let weeks go by without calling these witnesses in the House. Why?

It is honestly not clear to me why the House managers do not want to make a more solid and conventional case for incitement when these witnesses are available to remove doubts on these questions. With acquittal extremely likely, one would think that the House would seek hard testimony to force senators to reconsider their positions.

Instead, the House managers have been referencing media reports of what witnesses have said, including unidentified “senior aides.” Much of the first day repeated an account that Trump was delighted by the scenes of rioting while managers like Cicilline omitted statements in such articles that Trump might not have been fully aware of the situation until shortly before his 2:30 tweet telling people to stay peaceful and obey the police.

In reality, most of us have little idea of what Trump knew or how he was reacting at these critical moments. Such evidence is critical to the case before the Senate. Trump was not impeached for negligence. He was impeached for inciting an actual insurrection or rebellion against the United States. Yet, the House seems not only uninterested but willfully blind to the existence of witnesses who could supply that evidence. If Trump actively delayed the deployment of National Guard troops or celebrated the riot, it would have direct bearing on the case. Indeed, that is why the House managers keep referring to news reports that he seemed pleased by the scenes. Yet, it could have confirmed these reports by calling these witnesses rather than rely on anonymous sources in media reports.

The Lee kerfuffle was damaging not because it forced the House managers to withdraw Cicilline’s words. It was damaging because it highlights what is not in the House case. It has “much to do” with the credibility of the House case. Senators could conclude that the decision to rely on media reports rather than witnesses leaves the case inclusive and speculative on Trump’s state of mind or purpose. We know the public case against Trump, but not whether a legal case can be made against him. Or, to paraphrase Shakespeare, “we know what [the case is], but know not what [the case] may be” with direct evidence.

This column appeared on Fox.com.

212 thoughts on ““Much To Do About Nothing”: The Withdrawal Of The Lee Claim Has “Much To Do” With A Glaring Flaw In The House Case”

  1. The main reason they didn’t call witnesses would very likely be that (like with those who claimed to have proof of Russian collusion) when actually placed under oath and facing possible perjury charges, they would admit that they had no such evidence. They might have to admit that their anonymous high level aids were actually pure fiction.

    1. * aides

      Turley : “It is honestly not clear to me why the House managers do not want to make a more solid and conventional case for incitement when these witnesses are available to remove doubts on these questions.”

      It’s clear to the rest of us that the Dems didn’t want to “remove doubts” because the only doubts that evidence would remove were doubts that they were making stuff up.

      1. gandy, the evidence could not be more clear and is in the videos showing the events of Jan 6 and Trump’s words and actions (or lack of action after his Jan 6 speech) – incl tweets – for months before and leading up to and on Jan 6th.

        1. Then you should be able to list clearly that evidence.

          Using the idiotic spin standard that you and democrats and the left fixate on – I can more credibly tie the capital events directy to , democrats. big tech, BLM and you.

          That is the problem with innuendo and feelings as evidence.

          You can get it to lead anywhere.

          But lets start with some very fundimental flaws.

          The government can not silence protests, free speech, and petitioning government by closing its doors and closing its ears.

          The lockdown of the capital on Jan. 6 was improper and unconstitutional.

          Even if the 2020 election had been lawful and fraud free – it clearly was not – People as STILL entitled to protest it, and to demand that congress refuse to certify the election.

          We had to put up with idiots like you claiming that actually violent protestors in laffeyette park could not be cleared.

          What is good for the goose is good for the gander.

          The Election protestors were entitled by right to protest the election.
          They were free to take that protest into the capital.

          They were free to break in when you stupidly locked the capital.

          Contra the media and democrats there was ONE person killed at the capital – Alishi – an unarmed protestor was was mudered by the capital police.

          The protests themselves were legitimate – therefore even if Trump had actually “incited” the protestors – you can not illegally incite something that is legal.

          1. Nailed it…right on cue. Leftist don’t know how to play ‘ if the shoe is on the other foot game’. Would have a completely different opinion if it was one of their own.

            1. Seen it.
              Not persuaded of anything – except that democrats are idiots.

              Lets try this again.

              There is nothing illegal or improper about challenging elections.
              You CAN damage your credibility if you make Stupid claims – like “Russian influence”
              But you do absolutely nothing wrong even if you argue the stupidest of conspiracy theories.

              There is also nothing illegal or improper about protests.
              You CAN damage your credibility if you make Stupid claims -such as “defund the police nonsense”.
              But you do absolutely nothing wrong even if you protest for the stupidest of reasons.

              Unjustified violence is WRONG. Some violence is justified and all violence is not the same.
              The minutemen kill 73 redcoats on April 19, 1775. That was clearly an act of political violence against the established Government. Nearly all US founders “incited” that violence, and nearly all supported it after the fact.

              Conversely Antifa/BLM protestors burned and looted churches and private businesses. Few – all democrats attempted to justify this.
              These same “protestors” also burned and bombed police stations, and courthouses – this is inarguably political vioence, and it was much more widely supported – before and after the fact by many democrats – including Pelosi.
              Minority leader Schumer lead violent protests against the Supreme Court both inciting violence and threatening justices by name.

              No one has been arrested, or impeached for inciting or condoning any of the violence over he summer, during the Kavanaugh confirmation, or any other use of violence political or otherwise by the left.

              Clearly no one – right or left thinks there is anything illegal or improper about any of the words of democratic leaders,
              And that would be correct – their words might be offensive, immoral or unwise, but they are not legitimately subject to ANY government sanction.

              There is no legitimacy to prosecuting Trump or Republicans for words or conduct that is routinely accepted as unsanctionable when done by democrats.

              Any system of law or government that different standards for different people is inherently immoral. That is what “equal protection of the law” means.

              You can play all the video you want, it does not change the fact that this impeachment was a bad policitical hatchet job for which you should be asshamed.

              None of the above speaks to whether Trump or Pelosi, or Schumer, or Waters, or … good persons.
              That is a judgement that each of us gets to make individually.
              But we are specifically barred from making such a judgement through government and sanctioning people we through government decide are good or bad.

              We do not confiscate peoples, life, liberty or property – because some of us think they are bad people.
              We do so because they have committed ACTS that our laws specifically proscribe.

              All of the above ignores the actual capital protests themself

              It is not a crime to break down the door to your own home. While it is USUALLY true that breaking doors and windows is a crime.
              It is not always true.

              I have yet to hear a valid explanation from anyone for thwarting the first amendment rights of protestors to assemble, speak and petitition government in the capital while the capital was in session.

              Core to first amendment jurisprudence is the requirement that even where restrictions on first amendment rights can be justified, they must be implimented in the least restrictive way possible.

              Congress MIGHT be permitted to ban protestors from bringing weapons, or some similar restrictions. But an outright ban is not constitutional.

              I would note that we continue this nonsense through to the moment. Our capital is occupied by National guard troops who do not wish to be there. Whose purpose is to protect a government of dubious legitimacy from protests by those people who question its legitimacy.

              The left wants to tear down the wall at the southern border – while the capital is surrounded by a wall of razor wire.

              If you can not make the case for locking down the capital – then breaking doors and windows to enter was legitimate.

              I would further note that though there was no uniform set of demands from protestors, there were few asking for anthing that was illegitimate or even unconstitutional.

              Certifying the results of an election is a CHOICE of each individual congressmen. Voters – left and right are entitled to hold those congressmen accountable for choosing to certify or not. But there is clearly no constitutional duty to do so.

              Asking congress to not certify the election – would be unusual – though it has happened before. It is not unconstitutional.
              Asking for an audit first – even if that were demonstrably not necescary – is also not unconstitutional.

              In fact protesters demanding congress act unconstitutionally – would not be illegitimate.

              Our government leaders may legitimately expect to be SOMEWHAT safe from actual violence as they serve. They are not entitled to protection from the outrage and demands of angry citizens who are enraged by their actions.

              The only person actually killed at the Capital was a protestor murdered by police.

              There were few actual crimes committed at the capital. Those should be prosecuted to the full extent of the law – as should those from left wing protestors.

              The capital must be re-opened to the public, and the troops sent home.

              It is not enough that those on the left send our soldiers off to kill and die in foriegn wars where there is no compelling US interests.
              Now we have troops deployed to protect a government that is weak because it came to power through means that are dubious.

              It is not the role of the national guard to establish by force the legitimacy that this government failed to achieve at the ballot box.

          2. Right on target. The Neo Marxists running the show here have no interest in the truth OR law, unless it fits their ongoing narrative.
            Very dangerous times we live in, with abject derelicts running the show… at least for the time being until they are soundly routed and then many can be hung by their own actions and words. First to go Harris who incited violence and paid for it as well…

        2. This nonsense is boring.

          You are terrified of Trump – BECAUSE you beleive that but for fraud and lawlessness Trump would have easily won the election in 2020

          I have paid little attention to Faux Impeachment Deux. It has been a disaster for democrats. It exposes you for who you are.
          But that is happening all over.

          Democrats have power not – thought not legitimately, And your use of that power is self punishing.

          Many americans might support immigration reform. Almost none support completely ignoring the law by presidential edict

          You claimed Trump was authoritarian – when in 4 years did Trump order anyone to ignore the law ?

          If Biden, his minions, democrats and the left blatanly run roughshod over immigration law – why would anyone beleive you followed election laws ?

          There is no exception to the oath of office for laws you do not like. Lawful legitimate government enforces the law.

          1. I.m scared of Trump for the down ballot Trumpsters who will win in rock solid GOP locations. Trum? Bring it on. The guy has lost 2 votes now, and the 2nd worst than the 1st.

            1. “I.m scared of Trump for the down ballot Trumpsters who will win in rock solid GOP locations.”
              You can feel whatever you wish.
              The only things you can legitimately do – is Vote or speak.
              You may not use the power of government to thwart either Trump or anyone else from seeking election.

              “Trump? Bring it on.”
              If you were not afraid of Trump. If you were secure about the election – you would not have sought to bar Trump from future office.

              “The guy has lost 2 votes now, and the 2nd worst than the 1rst”
              There are plenty of people who think he won the popular vote in 2020.

              I would further note that Trump lost by 40,000 votes – that is within the margin of error, and easily inside the margin of fraud.
              A swing of 100,000 votes – leas than 0.1% of votes would have delivered the house, the senate and the whitehouse to Republicans.

              This is why the election integrity that you are running away from so fast matters so much.

              When total control of government can swing completely from one party to the other based on 0.1% of the vote there are several critical conclusions:

              We damn well better have completely bullet proof lawful, trustworthy fraud free elections – and we do not.

              In such instance no winner has a mandate to further infringe on the liberty of citizens.

      2. Any actual public “investigation” would have had to address questions that Democrats do not want raised.

        why was the capital locked down ?

        Why was this protest “dangerous” – but that against Kavanaugh acceptable.

        For most of my life the conviction of Eugene Debbs for “sedition” and the MacCarthy hearings were examples of the importance of free speech.

        I loath, Communism, Socialism, fascism and the modern progressive left.

        But I have defended the rights of Nazi’s Communists, the KKK and left wing nuts to speak. To protest.

        At this moment in time the enemies of freedom are on the left.

        There can not be any inquiry into the capital events without inadvertently drawing attention to the left’s supression of disent.

  2. “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

    – Declaration of Independence, 1776

    1. Following the Shakespearean theme.

      “To be, or not to be, that is the question:
      Whether ’tis nobler in the mind to suffer
      The slings and arrows of outrageous fortune,
      Or to take Arms against a Sea of troubles,
      And by opposing end them”
      Hamlet

  3. I don’t know that leftists are the scum of the earth (the earth doesn’t care – it’ll be here long after it has vomited us off of it, and in nature, its scum actually serves a purpose), but they are certainly the scum of the human race at present. Anyone that can’t see the chicanery is either stupid, asleep, or willfully ignorant. I appreciate the Professor’s objectivity, but at this point it’s a pattern of behavior, not an incident. That always indicates dysfunction. I think ultimately the dems will fracture, and it’ll take them a good while to pick up the pieces. Don’t blame Trump – blame Pelosi, Schumer, and Schiff. They are a classical, JFK liberal’s worst enemy. AOC and her privileged, millennial crybaby ilk aren’t even worth mentioning beyond these sentences. They will be a lost generation, likely still whining in their 60s. Boo frickin’ hoo.

      1. Scott has a point. Robspierre was a leftist. Mussolini was a leftist. Hitler was a leftist. Stalin was a leftist. Mao was a leftist. Castro was a leftist. They soaked the earth with innocent blood. They actually are scum.

          1. “The right needs to stop falsely claiming that the Nazis were socialists”

            Except that they were, as they themselves acknowledged.

            Nazism is “National Socialism.” Its politics is the “National Socialist German Workers’ Party.”

            Its leaders understood the essence of socialism: “To be a socialist is to submit the I to the thou; socialism is sacrificing the individual to the whole.” (Goebbels)

            In practice, the Nazis implemented socialism faithfully. There were massive welfare programs, redistribution of wealth, and government control over the individual’s life — from cradle to grave.

            Incidentally, the Nazis hated both the Left and the Right in Germany, because they were compromisers. They only wanted *some* government controls. Whereas the Nazis wanted *total* control over the individual.

            1. Sam — Good response. But it is a shame that it is needed with these people and their attempts to revise history.

              1. Young — Thank you.

                As you probably know, for decades the Left has been trying to rescue socialism by claiming, falsely, that the problem with its history is bad people — not irrational, evil principles. “Somehow,” they claim, this time it will work because we have “enlightened” people in charge (e.g., Sanders).

                What they evade is that *in principle*, socialism is inimical to individual liberty and man’s life.

                1. Sam — Very true. Shirer witnessed the rise of the Nazis and noted the savage brawls between Communists and Nazis but professed amazement when so many Communists then eagerly joined the Nazi party. They were rival criminal gangs who shared a fundamental belief in socialism

                  It has been noted that many former Nazis found comfortable positions in the Communist government of East Germany.

                  Slightly different eggs from the same deformed chicken.

          1. Anonymous has learned anonymous and erroneous history.

            Mussolini’s entire career as an activist, writer and politician was as a radical union man and socialist.

            Fascist was the Italian term used for unions.

            The Nazis said they were socialist and they meant it.

            Instead of Right and Left from the French Revolution try using Free versus Authoritarian and it will finally make sense to you.

            Progressives are authoritarian and we are seeing it demonstrated every day in government, media and big tech.

            They want to control your little life, what you see, what you read, what you eat, what you can say, where you can go, and when you die. You truly want that?

          2. “Hitler was rightwing. Mussolini was rightwing.”
            Because you say so ?

            What is it that you think distinguishes right from left ?

            “There are terrible people on both the right and the left.”

            There are – but the most dangerous policies today come from the left.

  4. Professor Turley is treating this like it’s an actual case – an actual impeachment trial – when it most certainly is not. There are no rules. There is no constitution. Having seized control of the government, this partisan faction has become crazed with power – they’re going to damn well do what they please.

      1. It is NOT an impeachment trial.

        Only the actual, existing, sitting president may be impeached and convicted.

        A constitutional impeachment trial requires that the Chief Justice preside.

        You are wrong.

        You are a liar.

        Liars enjoy the freedom of speech.

        Honest people enjoy the freedom of not listening to your lies.

      2. Clinton committed a crime – actually several. He lied under oath multiple times and he intimidated witnesses.

  5. News that there was an hour+ long meeting this afternoon between Trump’s lawyers and several GOP senators, including Graham, Cruz, and Lee.

    Seems inappropriate for the triers in a trial, who’ve sworn an oath to be impartial, to be meeting privately with the defense lawyers. According to a PBS reporter, “Cruz said Senators were talking about the legal “strategy for tomorrow” and where arguments are and where to go.”

    Saw a report that 15 GOP Senators didn’t even bother to show up today. I’m not sure if that’s accurate, but how can you try a case if you’re not listening to the evidence? They should be dismissed.

    1. Are your hallucinations painful? There are no triers because there is no trial. There is no Chief Justice presiding over a proceeding against “the” actual, existing president.

      What you are is a psycho having flashbacks to the sandbox in your kindergarten class, which you obviously failed.

      FYI, the dirty little American secret: You were never intended to vote by the Founders, in their restricted-vote republic under the dominion of the Constitution and Bill of Rights. The government does not function under your delusions of grandeur, pursuit of power for power’s sake or your collectivist hallucinations. Without doubt, you and your parasitic ilk would be “…esteemed to have no will of [your] own…” by the American Founders.

      To wit,

      “the people are nothing but a great beast…

      I have learned to hold popular opinion of no value.”

      – Alexander Hamilton
      _________________

      “The true reason (says Blackstone) of requiring any qualification, with regard to property in voters, is to exclude such persons, as are in so mean a situation, that they are esteemed to have no will of their own.”

      “If it were probable that every man would give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote… But since that can hardly be expected, in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications, whereby, some who are suspected to have no will of their own, are excluded from voting; in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other.”

      – Alexander Hamilton, The Farmer Refuted, 1775

      1. I don’t have any hallucinations. Are you projecting?

        The Chief Justice is only required to preside over the impeachment trial for THE President, not to preside over the impeachment trial for A President. Trump is not THE President; he’s a former President, like Obama, Clinton, Bush, and Carter. Biden is now THE President.

        “FYI, the dirty little American secret: You were never intended to vote by the Founders”

        ROFL that you think there’s anything secret about that. It’s well-known. But the Founders also created an amendment process and expected the Constitution to change over time. It has. Deal with it.

        1. There are no triers. There is no trial.

          There are only your hallucinations.

          “The” President

          Chief Justice shall preside…
          ___________________________

          Article 2, Section 4

          “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanor
          ____________________________________________________________________________________________________________________________________________________________

          Article 1, Section 3

          When the President of the United States is tried, the Chief Justice shall preside:…
          ________________________________________________________________

          Congratulations. You have mortally wounded the Constitution and illegitimately amended through violence and unconstitutional acts. When illegal acts are taken to re-implement the Constitution, you’ll understand, I’m certain.

          Whatever will you incompetent communist parasites do with the nation you’ve stolen and amended through violence?

        2. There is no constitutional provision for the trial of ANYONE not currently in office.

          There is only one instance in history where this has occured, and it went much as this will.
          Most Senators opposed the trial as unconstitutional and voted to aquit in an unconstitutional trial

    2. After you have heard the same thing said over and over and over and over and over and over…..you have heard everything the Democrats were going to say.

      They are quoting from the WaPo and NYT for their “proof”….and offering no witnesses…did no investigation…and screwed up in crafting the single Article of Impeachment.

      They do not have a case and the Senators know it.

      They also know how the Vote is going to go….there shall be no Conviction.

      Any concern over Impartiality on either side shows gross ignorance of the person that thinks for one second there is any Senator that is going to be swayed by anything said by either side.

      This is all a great big distraction to keep the focus off what is going on in the Oval Office each day.

    3. So dismiss them. You need a vote of 2/3 of Senators. Not 2/3 of Senators present.

      I do not think Trump should have presented a defence to this sham.
      I do not hink GOP senators should have participated.

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