Below is my column in USA Today on the lack of a strategy by the House to secure conviction in the trial of former President Donald Trump. As I have previously noted, the House managers did an excellent job in their presentations and many of the videotapes rekindled the anger that most of us felt over the riot. They also reinforced the view of many (including myself) that former president Donald Trump bears responsibility in the tragedy that unfolded due to his reckless rhetoric. Yet, there was a glaring omission in the substance of the House arguments. The managers did not lay out what the standard should be in convicting a former president for incitement of an insurrection and only briefly touched on proving any “state of mind” needed for such a conviction. That is why I have referred to their case as more emotive than probative. It lacked direct evidence to support the claim that Trump wanted to incite an actual insurrection or rebellion against the United States, as alleged in the article of impeachment. I do not believe that an acquittal was inevitable in this case, but it was all but assured by critical decisions made by the House in this impeachment. The unforced errors discussed below raise the question of whether the Democrats “tanked” the trial.
Here is the column:
The second trial of former President Donald Trump is shaping up to be a curious exercise designed more to enrage than convict. While legal eagles will be analyzing every move, what citizens really need is an Philadelphia Eagles fan to understand what is unfolding. In the NFL, it is called “tanking.” This year, there was a raging debate whether Eagles coach Doug Pederson was actually trying to win or just losing convincingly to secure a better draft pick. The House trial strategy has every indication of a tanked trial, but few are noting the glaring lack of a credible offense.
When it comes to football, tanking allegations arise when the inexplicable speeds along the inevitable. That point was reached this season when Pederson decided not to tie the game against Washington in the third quarter with a field goal and instead put Nate Sudfeld in the game over Jalen Hurts. The House may have reached that point when the managers seemed to be trying harder to make a better case for losing than winning. That was driven home by the selection of such managers as Rep. Eric Swalwell in the wake of his scandal with Chinese spy. Swalwell’s comments not only include disturbing legal claims, but highly personal and offensive remarks like mocking threats against Susan Collins, R-Maine. Swalwell declared “Boo hoo hoo. You’re a senator who police will protect. A sexual assault victim can’t sleep at home tonight because of threats. Where are you sleeping? She’s on her own while you and your @SenateGOP colleagues try to rush her through a hearing.” Pelosi picked not only a member who has viciously attacked Republicans but one of the Republicans most needed by the House in this trial. Sending in Swalwell made the Sudfeld substitution look like sheer genius.
If this was an NFL board of inquiry, three signs of tanking would standout.
The Snap
The first indication was the use of what I have called a “snap impeachment.” The House wanted to impeach the president before he left office, which was perfectly constitutional. I have long maintained (as I did as a witness in the first Trump impeachment hearing) that the House can legitimately impeach a president on his very last day in office if it has evidence of a high crime and misdemeanor. However, after Jan. 6 the House had time to hold hearings (even if only for a day or two) to create a record supporting impeachment. The House leadership refused despite the urging of some of us that no impeachment had ever been submitted with no record of a hearing, investigation or formal opportunity for a president to respond.
It was an ironic moment. In the last impeachment, I criticized the House leadership for impeaching Trump on the thinnest record in the shortest time in history. It then outdid itself by impeaching him a second time with no record and no hearing. Even a day of hearings would have reduced the serious prudential concerns of senators, but the House pushed through a snap impeachment on a muscle vote. That left the House with no record despite being denied witnesses in the prior impeachment by the Senate
The Article
The greatest indication of tanking was the language of the article itself. Even a single day of hearings would have allowed experts to discuss the potential impeachable conduct and the crafting of articles of impeachment. There was credible impeachable offenses in Trump’s conduct on January 6th and its aftermath. Instead, the House leadership insisted on impeachment for “incitement of insurrection.” The House is not alleging reckless or negligent conduct leading to a riot. It is alleging incitement to actually seek rebellion or overthrow of the country. The article specifically refers to section 3 of the 14th Amendment in its prohibition of anyone holding office if they “engaged in insurrection or rebellion against” the United States. Even moderate senators who condemned Trump for his speech would be highly unlikely to convict on such an article.
The House made it easy on those seeking acquittal. It could have crafted an article that would appeal to broader bipartisan support. Instead, it sought the most extreme language alleging incitement to an actual insurrection — virtually guaranteeing a partisan vote and likely acquittal.
The House also included language that only strengthened the expected challenge facing the House in seeking a trial for a former president. The article declared Trump “has demonstrated that he will remain a threat to national security, democracy, and the Constitution if allowed to remain in office.” Yet, the House was virtually certain that he would already be out of office when he came to trial. The language magnified concerns over the constitutionality of retroactive trials. Not only does the Constitution refer to the trial as deciding whether to remove “the President” but the article itself refers to the purpose of such removal to protect the nation. While the article mentions disqualification from future office, the article is crafted around an urgency that would become a nullity in a matter of days.
The Record
What occurred next was familiar to NFL fans suspicious of tanking. Nothing happened. The House made it to the endzone of a Senate trial and then stopped on a dime. The House demanded witnesses in the Senate but then let weeks pass without calling any witnesses that would be relevant to proving Trump’s intent or state of mind. It could have created a public record and locked in testimony in case the Senate, as expected, declined to call witnesses or severely limited witnesses.
Thus, weeks passed as key witnesses gave public interviews. Yet, the House refused to put them under oath in hearings. Why? A dozen witnesses could have testified and the record could have been referenced or incorporated in the trial. These are witnesses like former Acting Secretary of Defense Chris Miller and his two closest aides, Kashyap “Kash” Patel and Ezra Cohen describing what Trump said and did during the critical period, including discussions of the use of National Guard. Most recently, a senior aide said that Trump was “loving watching the Capitol mob” on television. The witnesses are doing everything short of wearing sandwich boards outside of the House asking to be called, but the House has refused to create a record. If it called hearings, the House would have reduced the concerns over the use of a snap impeachment and dramatically strengthened its case. Instead, the House preferred no record.
The House brief in the Senate further highlighted the lack of direct evidence on Trump’s state of mind. It laid out an emotionally charged but legally incomplete case for the Senate. To convict, the House needs to show Trump was more than reckless. It crafted the article as inciting an actual rebellion or insurrection, not mere negligence. Instead, the House plans to show clips of damage and interviews with rioters to show how Trump’s words were interpreted rather than intended. The thrust of its case is a parade of horribles from that day, a narrative that will harden the minds of many but change the minds of few. Without such evidence, the Trump team will be able to hammer away at similarly reckless rhetoric used by Democrats, including members of the “jury.”
That is why, with the start of the trial, there is growing suspicion of a tanked trial. The House will present a case long on emotions and short on evidence. Trump will then be acquitted and Democrats will look to picking up new talent in the 2022 draft.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley
Plato’s Apology of Socrates? —-does it seem to be relevant yet today?
DOES ANYONE HAVE ENOUGH HEMLOCK?——
How you, men of Athens, have been affected by my accusers, I do
not know.. For my part, even I nearly forgot myself because of
them, so persuasively did they speak. And yet they have said, so to
speak, nothing true. I wondered most at one of the many falsehoods
they told, when they said that you should beware that you are not
deceived by me, since I am a clever speaker. They are not ashamed
that they will immediately be refuted by me in deed, as soon as it
becomes apparent that I am not a clever speaker at all; this seemed to
me to be most shameless of them—unless of course they call a clever
speaker the one who speaks the truth. For if this is what they are
saying, then I too would agree that I am an orator—but not of their
sort. So they, as I say, have said little or nothing true, while from me
you will hear the whole truth—but by Zeus, men of Athens, not
beautifully spoken speeches like theirs, adorned with phrases and
words; rather, what you hear will be spoken at random in the words
that I happen upon—for I trust that the things I say are just—and let
none of you expect otherwise. For surely it would not be becoming,
men, for someone of my age to come before you fabricating
speeches like a youth. And, men of Athens, I do very much beg and
beseech this of you: if you hear me speaking in my defense with the
same speeches I am accustomed to speak both in the marketplace at
the money—tables, where many of you have heard me, and else—
where, do not wonder or make a disturbance because of this. For
this is how it is: now is the first time I have come before a law court,
at the age of seventy; hence I am simply foreign to the manner of
speech here. So just as, if I really did happen to be a foreigner, you
would surely sympathize with me if I spoke in the dialect and way in
which I was raised, so also I do beg this of you now (and it is just, at
least as it seems to me): leave aside the manner of my speech—for
perhaps it may be worse, but perhaps better—and instead consider
this very thing and apply your mind to this: whether the things I say
are just or not. For this is the virtue of a judge, while that of an
orator is to speak the truth.
Breaking news reported from Alice Springs, Australia. Boomer Karl just received word that the shipment of Hemlock the troops sent to their representative in Florida has arrived and will be transported to Mar Lago, and not to be concerned the defendant in the Kangaroo Court proceeding in Washington DC will be supplied with the proper dosage.
That is why I have referred to their case as more emotive than probative.
And that is all that needs to be said about who was really in the crosshairs. This was never about convicting Trump on impeachment charges. This was always about impeaching the 74 million people and their families that remain a threat to the Democratic party. This was about prosecuting conservative Americans that oppose everything the Leftists have been doing to this country. We’re in the midst of a culture war and the House Democrats just weaponized the impeachment process to establish conservatives as the enemy within. This won’t be the end of it. But as always, we do have evidence in our American history, that would inform right reason how our house is being purposefully divided and the end result of that is undeniable.
While the 1830s mobs “hang gamblers, or burn murders,” he cautioned, tomorrow’s mobs would hang and burn the innocent — “and thus it goes on, step by step, till all the walls erected for the defense of the persons and property of individuals, are trodden down, and disregarded.”
While after January 2021’s Capitol riot we’ve all seen the ruthless efficiency with which our government is capable of cracking down on lawlessness, we too saw the summer before, when months of attacks on federal officers, politicians, police, private homes, courthouses, and innocent bystanders met calculated indifference and shrugged excuses for “historic racial injustices.”
This too, was well familiar to Lincoln, who knew the mob will go further and spread deeper, warning, “by instances of the perpetrators of such acts going unpunished, the lawless in spirit, are encouraged to become lawless in practice; and having been used to no restraint, but dread of punishment, they thus become, absolutely unrestrained.”
“On the other hand,” he predicted, “good men, men who love tranquility, who desire to abide by the laws, and enjoy their benefits, who would gladly spill their blood in the defense of their country; seeing their property destroyed; their families insulted, and their lives endangered; their persons injured; and seeing nothing in prospect that forebodes a change for the better; become tired of, and disgusted with, a Government that offers them no protection; and are not much averse to a change in which they imagine they have nothing to lose.”
Combined, he warned, these seemingly opposing feelings come to one terrible conclusion: “the strongest bulwark of any Government, and particularly of those constituted like ours, may effectually be broken down and destroyed — I mean the attachment of the People.”
https://thefederalist.com/2021/02/12/decades-before-the-civil-war-lincoln-saw-an-approaching-storm-every-american-should-read-his-warning/
Happy Birthday Abraham Lincoln!
Many times Donald Trump brought the hypocrisy of the Democrats to the surface of the swamp. This time he didn’t have to lift a finger or say a word. They did it to themselves. When your opponent is punching himself in the face don’t do anything to stop him.
“Many times Donald Trump brought the hypocrisy.”
FIFY
TDS
The Democrats were very smart not to call witnesses. A good lawyer knows to never call a witness if she is not 100% sure that the witnesses testimony will support her case. If a lawyer couldn’t find such supporting witnesses she would never bring the case to trial. If she brought such a case she would be the laughingstock of her profession. Laughingstock is an apt description.
Witnesses could not provide any more direct testimony than Trump’s own words, which did not equate to incitement under the Brandenburg standard. If they were called ,the defense could call witnesses to contradict their testimony reinforcing the case for Trump. Given that this impeachment was designed as pure political theater they didn’t want real evidential testimony to upstage them.
If the house managers would have called witnesses the witnesses would have been subject to cross examination. The cross examination would have been viewed by the entire nation. The people of the nation would then be able to make up their own mind. They said to the American people, “If we want your opinion we’ll tell you what it is” The response on the left was “Thank you sir, may I have a little more”? No! they bellowed. Wait now. We’ll call you out when we need you again.
Thinkit, the words of Trump going back months before the 1st vote was cast – by the way, he had the same plan in 2016 but surprisingly won – as well the words of his goons in the Captial – they had the Trump hats, shirts,and flags, so Americans don’t have to buy the program – were just fine to do the job, but thanks for the advice. If Republicans had the nuts to clean up this mess themselves we wouldn’t have to be here, but again, they didn’t and Dems need to get back to work. Your lawerly BS will have to wait. for another opportunity.
It’s not up to the House Managers to call witnesses. It’s up to the Senate.
I’ve called my Senators to encourage them to ask for witnesses. You should too.
Or… more likely they are simply that inept.
“The article declared Trump “has demonstrated that he will remain a threat to national security, democracy, and the Constitution if allowed to remain in office.” Yet, the House was virtually certain that he would already be out of office when he came to trial.”
Keywords being “virtually certain”, as opposed to absolutely certain.
First and foremost, Pelosi and company needed some sort of insurance policy in place had Trump played his cards correctly (which he did not) with regard to the blatant election fraud that occurred. Hence the sloppily engineered capitol incursion PsyOp replete with multiple videos of Trump supporters being welcomed into the capitol building by capitol police like they were part of a tour group.
Secondly, the sham snap impeachment allows them to further vilify every single one of the 74 million people who had the audacity not to vote for a crooked and utterly corrupt career politician with Dementia, who will be replaced by a sociopath named Kamala Harris who could never even get close to garnering the support needed to win the nomination. (And who got her ass handed to her in epic fashion by Tulsi Gabbard in the debates).
So, yes, they tanked it purposefully. Because by the time the trial began the demented pedophile in chief had already been sworn into office. Therefore their focus became the aforementioned vilification and shaming (cancelling) of the millions of unwashed “deplorables” who voted for Trump.
Wonder if the defense will play a video of the crazy democrat firing rounds at a GOP baseball game. Rep. Steve Scalise was hit & almost died.
It’s obvious that the witnesses would have proved that Trump wasn’t reckless and didn’t incite. The Democrats prefer using an “anonymous” person who will likely end up being someone who was far from wherever Trump was.
The whole “trial” consists of inciting the citizenry to get angry against Trump and to brush all Republicans with the stink of “incitement.” The Democrats have Hollywood to support them and to produce the spiffy videos that have been carefully spliced together to obscure the facts. The media elite then parrot all the propaganda for the common people. The entire effort isn’t an effort to tank the trial but rather unknowingly conveys the Democrats’ perception of most of America (and the rest of the watching world) as being emotionally-driven simpletons incapable of true independent thought and analysis.
The long term goal of this kangaroo-court political exercise is to justify the militarization and censorship of America by pretending there’s a “domestic terrorism” threat while ignoring that the true domestic threat is big tech, Marxist BLM and Critical Race Theory force-feeders that have taken over all culture and American institutions and have poisoned the relations between all citizens.
“It’s obvious that the witnesses would have proved that Trump wasn’t reckless and didn’t incite”
Nope. The Senate can require witnesses. If you think it would be good for there to be witnesses, call your Senators and tell them to introduce that.
Nope, not giving any credibility to this farce by calling my senator. But thanks (not) for your suggestion.
No Witnesses needed…..time for some Jury Nullification!
Call for a vote….get it done….and send the Democrats away with their tail tucked firmly between their legs.
Take note how the House Democrats didn’t do so yet those witnesses you talk about appeared on TV, but not under oath. Democrats use innuendo and lies.
The House managers can’t call witnesses for the trial without the Senate’s approval.
Did it ever occur to you, Mr. GENIUS, that they couldn’t put these people under oath because what they said was BS? The thought ever cross your superior mind that this is all a PR stunt and nothing more? Nope. Didn’t think so.
Good point. The Dems knew that their alleged “witnesses” would get to chimp it all out to their choir on a free pass in the media. Good to assume these witnesses would have looked and sounded a lot like the last ones in the other impeachment.
For the Democrats over the past four years, the single unifying force is their hatred of Trump. With him gone, they will digress to in-fighting. This impeachment is intended to ride the “hate Trump” force for a few more weeks while Pelosi cobbles together a plan to NOT lose the House in 2022. They say (as have many on this blog) that impeachment is a political process; Pelosi is using it as a political tool, not to remove a President, but to lay the groundwork for the next election. On one hand, it’s a brilliant chess move; on the other, she’s permanently damaged our democracy. At some point, impeachments will become common in the House as a way to smear the President and his/her Party.
Please tell us Dallas, who damaged our democracy more, a party that impeached a President for lying about a personal affair and lied about it, or a party who has protected a president who tried to bribe a foreign leader and tried to overthrow an election.
“or a party who has protected a president who tried to bribe a foreign leader and tried to overthrow an election.”
Joe didn’t try to bribe a foreign leader, he actually did bribe a foreign leader, and old demented Uncle Joe’s handlers not only “tried” to overthrow an election, they succeeded.
So, you should be very happy…..for the moment.
The corrupt sleeze of the Clintons, the unprincipled Democrat Party, the fake news MSM, the Big Tech oligarchs, Silicon Valley, Hollywood, Teachers Unions, etc…..these are the true destroyers of our republic. Wake up people and pay attention.
The current president sold out to China. His policies are caving to China. He is destroying and eliminating jobs, causing higher gas prices, higher heating costs, higher food prices — all in the midst of a pandemic! Biden lied (again, no surprise) about getting $2k checks out immediately IF HE got elected! Lies and more lies.
Did you know that Jeep is owned by China? Hollywood is owned by China? Want to know which is more damaging to our “democracy”? Having a corrupt, senile sell-out or Donald Trump who actually took China head-on? The answer is obvious to the American workers who Donald Trump was fighting for.