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Wednesday, December 18, 2019
Current Affairs ... Politics ...

Many political observers today talk regretfully the growing polarization occurring amidst the American populace. A lot of people are still rather apathetic about politics, but for those who do take an interest, they often become quite vehement about the leaders, candidates and political party that they support. There is evidence that more and more families have cut holiday dinners and family get-togethers short in recent years so as to avoid political arguments from breaking out.

Some pundits encourage those of us with political opinions and interests to engage people with opposite views, so as to maintain the ability to exchange views respectfully even though everyone retains their own opinions. The Aspen Institute even has a “Better Arguments Project” to encourage such conversations.

At my place of work, I regularly discuss politics with one of the attorneys. My workmate is an intelligent Republican conservative. He was not particularly thrilled by Donald Trump during the 2016 GOP primaries. However, since Trump’s election, he got on board the Trump train and has been an ardent supporter of the President, and a vehement critic of the Democrats. For most of my life I considered myself a Democrat, although in recent years I find myself taking a more centrist and independent position on many issues. However, I still sympathize with much of what the Democratic Party supports, even if I often disagree with how the Dems plan to enforce their goals (e.g., I agree that government needs to do more to expand access to health care; however, I am not a supporter of Medicare for All and the elimination of private health care).

By contrast, I have trouble with almost all Republican positions and policies. I agree with them on the need for personal incentives, limits to government involvement in the economy, and for protecting individual freedoms, but I don’t see those things as absolutes. I agree that government cannot do everything to help people, but I think that it can still do more then it now does. I agree that defense and law enforcement are important and need to be properly funded. But as to where Donald Trump is now leading the GOP – oh goodness, no. I might partially agree with Trump on some foreign policy issues, such as getting tougher with Iran and China. But most of his domestic agenda is not terribly agreeable to me.

And yet, I am willing to talk with and listen to the other side. So I try to keep the communication lines open with my attorney friend at work. But it ain’t easy. Here’s a case in point.

I just exchanged emails with my friend over the current impeachment proceedings being brought against Trump. I wanted to solicit my friend’s opinion on whether the Senate should call top Administration officials to testify at the upcoming Senate trial, e.g. Sec of State Pompeo, Chief of Staff Mulvaney, National Security Advisor John Bolton, and Special Counsel Rudy Guilliani. They are the people who really know what Trump was up to in soliciting information on Joe Biden and his son Hunter while the Administration was holding back military aid that had been approved by the House and Senate.

Yes, it can be argued that the House should have called them and taken the time to have litigated their initial refusals to testify, as to compel their sworn testimony. Obviously, Nancy Pelosi and the other Democratic House leaders decided against that. But the Senate could still do it, although Majority Leader Mitch McConnell said that it ain’t gonna happen.

I wrote out what I believe to be the Constitutional issues at play here. The more I wrote, the more confounding the situation appears to be. Here is what I said:

I’m in the twilight zone about the McConnell-Schumer debate regarding calling new witnesses before the Senate. My rough understanding is that the House investigates and presents an indictment by majority vote. The Senate holds the trial and decides by majority vote. Obviously, witnesses that were not presented at Grand Jury nor were involved in the investigatory lead-up phase can appear at a criminal trial, no rule against that. But did the Founders intend that House impeachment and Senate trial apply criminal procedure?
 
I don’t see an easy answer. I sort-of sympathize with Mitch when he sez to Chuck that the House Dems didn’t take the time to get the big boys (Bolton, Pompeo, Mulvaney, Rudy, etc) to participate in their investigation and hearings, so why should the Senate now do their dirty work?
 
On the other hand, one might argue that the evidence standard for a Grand Jury is preponderance of evidence, whereas the standard for a trial is “beyond a reasonable doubt”. The Dems might argue that their bureaucrat witnesses, together with the phone call transcript that Trump stipulated, was enough to meet a preponderance standard; but now that the case is impeached and going to trial, it IS legitimate to introduce new witnesses as to attempt to meet the “beyond reasonable doubt” standard.
 
Was that what the Founders envisioned? From what little I know, the Founders really didn’t anticipate the big political split between 2 strong parties that has dominated American politics from 1800 onward.  Given the 2-party system, it’s easy enough for us to think about one party as the “prosecution” and the other party as “defense counsel” for the accused President. But did the Founders see it that way?
 
That’s a real head-scratcher for me. From what little I know, it seems like the Founders imagined that the main fault line in an impeachment situation would be between the President and the legislature. Let’s call that a “vertical fault line”.  But the true reality which has evolved is more of a “horizontal fault line”, a split between the 2 major parties, one of which includes the Prez.  I don’t think that the Founders really envisioned a situation like this, where one party owns one part of the legislature, and the other party owns the other legislative component.  So the fight becomes intra-legislative, not legislative branch vs executive branch.
 
Mitch sez  “We don’t create impeachments, we judge them.” Yea, but does the Senate then wrongly deny the Constitutional intention of the House? I.e. if House finds preponderance, does the Senate then have the duty to investigate and consider the existence (or lack thereof) of other potential evidence that would be needed to find or deny “beyond reasonable doubt”?  Is that part of the duty of “conducting a trial”?
 
You can say that the matter of Senate witnesses is up to the Senate, and will be determined in a Senate vote. Obviously, under the current political alignment, that means no more pro-prosecution witnesses. One possible wild card is the Chief Justice – could he call witnesses without Senate approval?  I don’t think that Roberts is going to be anxious to help the prosecution here – but arguably he could, in the name of the fair execution of the Constitutional process.
 
But what the hell is the process in a situation like this, where the prosecution controls the Grand Jury and the defense controls the trial court? I wish that the Founders had anticipated this and gave detailed rules.  They would probably have said that the House and Senate reflect the will of the people in 2 different fashions.  But in 2020, they actually reflect “the will of one party or the other”, and NOT a “lords vs commons” system.  The standard answer is that new situations emerge that the Founders did not directly anticipate, and the courts then decide what the Constitution requires in the new situation. So is this all gonna become some huge Supreme Court case?
 
So – you are a Constitutional scholar at heart – what say you?

I was hoping for a detailed consideration of the Constitutional implications of this matter. However, here is what my friend sent back about an hour later:

The Great Constitutional question you pose here, placed in the instant context, is: Must, or should, the Senate treat with strict and politically blind judicial rectitude articles of impeachment that are rabidly partisan? My answer is, no. My answer is Madison would be outraged by what the House has produced and how they produced it. I think he would be most dismissive. It is not McConnell’s job to rehabilitate this historically shameful act. He should act, though within the boundaries of the rules, to consign it to History’s House of Shame as quickly and neatly as he can and not give the dems any opportunity for further mischief.

Yikes !! Talk about “rabidly partisan” ! Is it really all that simple?

Sigh. Well, I tried . . . and I will keep on trying. I won’t shut my friend out. But it ain’t easy when I try to ask a complex, nuanced political question, and get an instant answer that sounds a lot like what you hear from Shawn Hannity. This sort of answer does not promote continued dialog between those of differing opinion!

PS, Senator Lindsey Graham strongly supports McConnell’s decision against presenting witnesses at a Senate impeachment trial. But back in 1999, Graham (then a Congressman) publicly urged the US Senate to call witnesses in the Clinton impeachment trial. Of course, the Democrats opposed calling witnesses. In the end, the Clinton trial had three witnesses who delivered closed-door video depositions, including Monica Lewinsky, the White House aide who President Clinton allegedly and admittedly had sexual contact during work hours.

It’s always interesting just how easily our political leadership shifts its positions quite readily, as to satisfy partisan purposes.

◊   posted by Jim G @ 11:35 pm      
 
 


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