Final Day of Impeachment

The final day of the impeachment trial was a vast improvement over its predecessor.  It began with the sides arguing over whether to have witnesses. The impeachment managers argued to take depositions of one witness.  Van der Veen has two main emotional states -- flat and furious.  In this case, he was furious, outraged at the House's inadequate preparation, and saying if the impeachment managers were allowed to take the depositions of one witness, he would take hundreds, in his office in Philadelphia.  Everyone laughed.  Van der Veen was not amused.  Extended bustling about ensued and culminated in allowing the impeachment managers to read the statement into the record.  Van der Veen later made clear he was not stipulating that the statement was true, only that Herrera-Buetler said it.

The impeachment managers then did their recap.  Raskin began by arguing that anything Trump did or did not do after the insurrection broke out was relevant to show his state of  mind, just as what an accused arsonist does after the fire starts is relevant.  Cicilline gave what I thought was the best timeline of the insurrection yet, good precisely because it was not too long or detailed.  He showed that Mike Pence had been removed from the Senate floor on live TV twelve minutes before Trump, the inveterate TV watcher, sent out a tweet denouncing Pence.  On second thought, if I wanted to do a highlights of the impeachment trial, I would probably do Cicilline's timeline of the attack, with a few of Plaskett's video presentations to add emphasis. I do have one criticism, which is Cicilline's emphasis on the rioters reading Trump's tweets by bullhorn, showing that they were aware what he was tweeting.  I know of no evidence, however, that Trump knew his tweets were being read to the rioters.  Madeleine Dean showed evidence of incitement going back for months, and Nerguse explained the difference between impeachment and a criminal trial.  Aside from the bullhorns, my main criticism of the trial was that I thought the Democrats were too willing to dismiss Trump's lawsuits to overturn the election as permissible.  Granted, the lawsuits were not illegal.  But they were utterly without merit, many of them sanctionable as frivolous, and a serious threat to one of the basic foundations of our system of government -- that the loser accepts defeat.  Trump truly does not understand why that is important.

Van der Veen then hammered on his four defenses that he had been stressing over and over throughout the proceedings, saying that you agreed with any one of them there were grounds to acquit.  And, of course, hammering on partisan themes like "constitutional cancel culture," accusing Democrats of a double standard for not impeaching anyone over endorsing Black Lives Matter, and that threat that only Democrats will have freedom of speech.  His four defenses were:

1. It is unconstitutional to impeach an official after he leaves office;
2. The impeachment was a violation of Senate Rules by not having separate counts;
3. Insufficient due process; and
4. Freedom of speech.

And by listing them out so neatly, it became apparent the reasons one and three are mutually incompatible.  Granted, it is not unheard-of for a defense lawyer to offer alternate and mutually exclusive reasons to acquit, although it usually does not go over well with a jury.  But it is quite another thing for two mutually exclusive reasons to acquit to preclude any possible prosecution in any case, but that is effectively what Van der Veen did here.  

 The House unduly delayed in sending over the impeachment. If they wanted the Senate to try the case, they should have sent the impeachment over before January 20.  The Senate cannot convict because the trial is unconstitutional.

The House unduly rushed its impeachment and sent it over without fully investigating. The House should have launched a full 9-11 commission style investigation before referring an impeachment.  The Senate cannot convict because the rushed investigation did not give the President due process.

Raskin kept warning about creating a "January exception" to impeachment -- that no matter what the President did in January he could not be impeached because there would not be time to try him before he left office.  Naturally the defense team denied such an exception.  But the only possible way to read Van der Veen's defense that there is, indeed, a January exception -- and quite probably a December or even November exception as well.  No matter how outrageous the President's conduct, Congress must both (1) conduct a full, thorough investigation (a process that can take months) and (2) get the articles of impeachment over to the Senate in time to try by January 20.  Two mutually contradictory demands on the House create and effective January exception!

Then, of course, came the vote which, as we all know, was 57-43, insufficient to meet the two-thirds threshold for impeachment.  It was actually quite impressive that the presentations managed to sway two Republican Senators. Most people expected the vote to be 55-45.