All right, on to the impeachment hearings, knowing it is rather late. To be clear, I did not watch the hearings on TV (some of us have day jobs), but I did read the opening statements of all witnesses and listen to Lawfare Podcast recordings of their testimony, edited to ensure "no member-infighting, no speechifying, and no unnecessary fluff."
I will begin with a few comments as a lawyer.
Comment number 1: The hearings did not follow the rules of evidence as to what would be admissible at trial. Normally witnesses (with the exception of experts) are limited to what they could perceive with their five senses -- what did they see, hear, touch, smell and taste. What witnesses heard other people say is hearsay and is not admissible, subject to numerous exceptions. Witnesses are also not allowed to testify to what thought or concluded, or what was obvious but never expressly said or seen. Committee witnesses testified to hearsay, opinions and general impressions all the time.
This is not necessarily wrong. An impeachment is not the same as a trial (criminal or civil). Impeachment has been likened to an indictment and the actual "trial" taking place in the Senate. The rules of what is admissible in an indictment are much broader than what is admissible at trial.
There are other differences as well. In a trial, any juror who knows the defendant, much less has a working relationship, is automatically disqualified. A President necessarily has a working relationship with members of Congress. That is an essential part of the job. President Trump has also been attempting to influence Republicans in Congress (mostly the Senate) in ways that would land him in jail in an ordinary trial. So maybe it is appropriate to offset these advantages to the defendant with broader rules of admissibility.
Comment number 2: Witness testimony took a different form than it does in a trial. In a trial, the lawyers begin with opening statements explaining what they are going to present. Witnesses then come and testify exclusively in a Q&A format. Witnesses are not allowed to make speeches. The lawyer introducing a witness must establish the witness's account through the Q&A format and is not allowed to ask leading questions. The opposing party attempts to undermine the witness's testimony is is allowed (though not required) to ask leading questions.*
In the impeachment hearings, the witnesses began with an opening statement. The committee members and committee lawyers then asked questions (open and leading) based on the witness's opening statements, but often bringing up additional information not mentioned in opening. (All members knew what to expect, since they had previously interviewed the witnesses in closed hearings). Committee members also took some of their time to make speeches, which is never allowed in a trial. And, as mentioned above, the witnesses testified to a good deal more than would have been allowed at trial, but also took care to mention that it was not for them to decide whether President Trump's conduct was legal or illegal, impeachable or not impeachable.
Another difference (obviously) is that at trial only one witness testified at a time. In the impeachment hearing, there were usually two witnesses called at once -- most typically one to testify about events in Ukraine and one to testify to events in Washington.
Comment number 3: Despite these differences, the overall approach was what a lawyer would expect. Democrats attempted to build a case; Republicans attempted to knock it down. In particular, Democrats had witnesses present an account; Republicans tried to punch holes in the account. They got admissions, for instance, that the witnesses in Washington did not know in detail what was going on in Ukraine, and that the witnesses in Ukraine did not know what was going on in Washington and never heard the relevant telephone conversation. They got the admission that military aid to Ukraine was eventually released even though no investigation was ever announced. Republicans exposed various other gaps in the witnesses' knowledge and probed for bias. They did not make any serious attempt at a counter-case. And this is fine. It leaves non-lawyers unimpressed, but it is absolutely standard practice for defense lawyers. Defense lawyers are only required to knock down the case against their clients; they are not required to build a case of their own.
Comment number 4: There was one major outlier, and it was not Jim Jordan. Many people commented on Jim Jordan appearing in his shirt sleeves (it's his schtick, deal with it), or yelling and ranting, but the substance of what he said was no different from the other Republicans -- an attempt to poke holes in the witnesses' testimony.
The real outlier was Devin Nunes, who said some very strange things. A typical trial begins with an opening statement in which the party seeking to prove its case explaining what its case is and what evidence it intends to present. That is what Adam Schiff did. The opposing party then points out defects in the case being made and (usually) presents it own theory of what happened. Devin Nunes instead engaged in a political and conspiratorial rant, convincing only to the party faithful. His questions to witnesses raised signs of conspiracy between Burisma and the Bidens that would be genuinely alarming if true. But that fact that no one else addressed these allegations was a strong hint that there was nothing there. I will get to this in a later post.
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*And although every academic work explaining questioning to lawyers warns them to ask only leading questions on cross examination, I have never yet seen a lawyer who actually did that. I have also found the ban on asking one's own witness leading questions is not as rigid in practice as it may be in theory.
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