The Washington Post recently failed at satire in its preemptive attempt to mock the impeachment trial of the president in the Senate. Without any sense of irony or shame, the Post presumes to lecture Republicans on the importance of having a fair process.
Meanwhile, the House process was deeply flawed and amateurish. Democrats used their power to box out the president from access to fact witnesses, discovery, and procedural safeguards. Republicans howled as Democrats trampled their rights to a day of minority hearings, the right to call separate witnesses, and the right to equal access to the evidence.
In the House, the Democrats act as both prosecutor and judge. The public relations campaign by our corporate leftist media was universally supportive. With few exceptions, Democrats wasted their entire evidentiary presentation on opinions, emotions, and gossip. The charges changed constantly. The outrage sprayed in every direction like the blast of an unattended firehose. All of that is about to end.
How would Senate Majority Leader Adam Mill structure the trial? I’m glad you asked.
Facts Only, Please
When it comes to the triable issues, I’d demand facts only, please. No more torturous testimony about some vague and subjective danger to the Republic or national security. No more diplomatic gnashing of teeth over the hurt feelings of having a president disregard all of the brilliant advice proffered by unelected bureaucrats.
I would immediately separate the trial into two phases.
Phase one: Show us what happened. What are the facts? Only fact witnesses with firsthand knowledge would be allowed to testify. Democrats would be confined to the witnesses the House relied upon to impeach. This would not be permitted to turn into a fishing expedition in which the Democrats turn the Senate into another Mueller investigation. If Democrats weren’t ready to prove their case with what they have, they shouldn’t have impeached.
The opinion witnesses would have to wait for phase two—which would never happen because the Democrats won’t be able to establish a factual case.
The House Democrats have had their discovery. They had access to subpoenas and voluntary cooperation from witnesses. The White House turned over documents and published the transcript of President Trump’s July 25 call with Ukraine President Volodymyr Zelensky. No mas. Democrats voluntarily abandoned court assistance in enforcing subpoenas. By issuing articles of impeachment, the Democrats declared that they’re ready for trial.
Now it’s the president’s turn. Borrowing the subpoena authority of the Senate Judiciary Committee, the president’s attorneys will be allowed to take depositions, subpoena witnesses, review all of the House impeachment materials.
You’re damn right—Joe Biden, Hunter Biden, Adam Schiff, and the whistleblower would all be subject to deposition by the president and his attorneys. The Democrats allege an “abuse of power.” That means they have to show President Trump had no legitimate motive for asking Zelensky about possible corrupt dealings between the Biden family and Burisma. If the president can establish a good faith swamp-draining basis for asking the question, the president wins.
Adam Schiff and the whistleblower both claimed access to secret information that was promised to the public. The president has every right to cross-examine both attackers to test the credibility of the public allegations. Subpoenas would be subject to an expedited enforcement process. The chief justice of the Supreme Court is, after all, presiding over the entire matter.
Unlike the kangaroo proceedings in the House, the rules of the Senate will not be made up as they go. The Senate will start with a formal conference in which procedures will be established.
As the accusers, the Democrats should not be allowed to surprise the president during the trial. They should not be allowed to call any witness or use any hearsay unless the president has had the opportunity to confront and cross-examine that source before the trial. The Democrats would not be allowed to keep changing the definition of the “crime” of which they are accusing the president. There will be no more hearsay and feelings as evidence.
The president, however, would be given wide latitude to defend himself. This is his day in court. The Democrats fear this and would attempt to prevent him from mounting a defense.
The Fact Trial
The Democrats bear the burden of proof and they would have to present their case first. In our modern accusation culture, Democrats typically try to shift the burden to the accused to prove his innocence. This allows the accuser to amend the accusations to close off defenses.
But in a fair trial, the accused is entitled to hear the case against him before he starts defending himself. Only fact witnesses would be heard during this phase. Given the proceedings in the House, only two witnesses, Gordon Sondland and Lt. Colonel Alexander Vindman appear to have firsthand knowledge of the facts. Both rely heavily on presumption and guesswork. Good luck with that.
Motion for Acquittal
At the end of the Democrat’s case, everyone should anticipate a motion of acquittal that would allow the Senate to end the farce without the need for the president to put on his own case. Fifty-one votes would be sufficient to sustain this motion.
The Democrats haven’t thought this through. The process leading to impeachment has been so one-sided and unfair that they have no basis for demanding equal treatment in the Senate. Nor should they receive equal rights. They are the accuser. They have only themselves to blame for a rushed impeachment process that gathered few facts.
The Democrats have had their chance. It’s worth repeating again: by impeaching, they’re saying they’re ready to go. Schiff will no longer have the protective cocoon of a rigged system. It’s showtime.