#Impeachment Special: Witnesses & Documents, Trump Taking the 5th & Trial Strategy

Schumer, Pushing McConnell to Negotiate, Lays Out Plan for Impeachment Trial

The Senate Democratic leader wants to seek testimony from Mick Mulvaney, John Bolton and other White House officials, and subpoena documents the White House has withheld.

Senator Chuck Schumer proposed a trial beginning Jan. 7 that would give each side a fixed amount of time to present their cases.Credit...Samuel Corum for The New York Times

By Sheryl Gay Stolberg and Michael D. Shear

• Dec. 15, 2019

The article above lays out a fair & reasonable plan--based primarily on the Clinton impeachment plan approved by all of the Senate Republicans back in 1999. Schumer also wants to subpoena the testimony of witnesses who have here to date refused to testify and limited number of documents that the WH has refused to produce. Seems fair, doesn't it? 

The witnesses, including Mulvaney and Bolton, could provide definitive exculpatory evidence in favor of the president. So, too, the documents. The Democrats will have established a prima facie case if the House votes in favor of impeachment, the analog of a criminal indictment. At this point, the Democrats can claim that they have established probable cause that an impeachable offense has been committed. One could argue that by calling these (hostile) witnesses and obtaining these documents, the Democrats could ruin their case. What if Bolton & Mulvaney lie to protect Trump? What if the documents are inconclusive? It's a gamble. Of course, if a lie is apparent enough in the face of all of the evidence and an attorney believes that during the examination of the witness the witnesses credibility will be undermined by obvious attempts to lie or evade, then breaking the adage about never asking a question that you don't the answer to can be set aside. (Prosecutors in criminal cases, because of a defendant's 5th Amendment right against self-incrimination, quite often don't have the benefit of advanced statements from the defendant to use in cross-examining a defendant who's chosen to testify.) 

Query: if impeached, does Trump have a 5th Amendment right to refuse to testify (if subpoenaed)? This is not a criminal offense. Impeachment is a constitutional provision that his neither strictly civil or criminal, nor even legal in nature. There most certainly is a political component. So why would the 5th Amendment apply? And why wouldn't Trump want to appear and testify to clear his good name about what he considers scurrilous charges? 

Just askin'.

Better Know the Impeachment Process 12.14.19 "Hearsay at Trial"

One of the issues (faux issues, really) raised by Republicans against the use of "hearsay" may come up in the Senate trial also. Given the strategy that the White House and the Senate leadership are planning, to minimize any evidence at trial at all, we can expect a lot of "hearsay." But should that bother us? Black argues not, and I'm inclined to agree, although to assume that members of the current Senate are more prudent and insightful about the credibility of evidence strikes me as--well--a stretch. Here's what Black says on the subject: 

In an ordinary trial, for example, we exclude what we call “hearsay” evidence—testimony by one witness that another person, not a witness, told the witness that something had happened. We exclude evidence of the defendant’s character, unless he himself seeks affirmatively to establish his good character. And so on through a considerable range of technicality. Here, I think, the sensible answer comes clear. These technical rules of evidence were elaborated primarily to hold juries within narrow limits. They have no place in the impeachment process. Both the House and the Senate ought to hear and consider all evidence which seems relevant, without regard to technical rules. Senators are in any case continually exposed to “hearsay” evidence; they cannot be sequestered and kept away from newspapers, like a jury. If they cannot be trusted to weigh evidence, appropriately discounting for all the factors of unreliability that have led to our keeping some evidence away from juries, then they are not in any way up to the job, and “rules of evidence” will not help. 

Black, Charles L. & Bobbitt, Philip, Impeachment: A Handbook, New Edition  (p. 18). Yale University Press. Kindle Edition. 

Better Know the #Impeachment & Removal Process 12.13.19 "Standard of Proof"

A crucial issue--or what should be a crucial issue--in any Senate trial of impeachment should be the appropriate standard of proof by which to judge the evidence, as it is in any trial. The constitutional text about impeachment does not address the standard of proof, so sound judgment and legal reasoning must apply here. Black, writing in 1974, splits the baby as it were, suggesting that something more than a civil trial stanard of a preponderance of the evidence (more likely than not) but less than proof "beyond a reasonable doubt" (the criminal standard) should apply. I think that this take makes the most sense. Black writes: 

[F]or example: “Did the official on trial perform an action because a campaign contribution was given, or was this a coincidence?” Either is possible; the “finding” of this “fact”—the “fact” of corrupt or blameless motivation—may entail the drawing of complicated inferences from circumstances; the circumstances themselves may be proven with more or less clarity. Before the “fact” can be “found,” the trier of fact must decide on a standard of proof. Should he find an impeached president guilty of corruption if it seems slightly more likely than not that a corrupt motive was present? Or should a finding of guilt have to rest, as in a criminal trial, on evidence which leaves no “reasonable doubt”? It makes a big difference, as the example I have just given shows. 

. . . . 

What is the right standard for judging guilt in an impeachment proceeding? Of course we don’t know the answer with any sureness; we have to work it out for ourselves. As with so many constitutional questions, we have to ask what is reasonable, and the reply is here far from obvious. Removal by conviction on impeachment is a stunning penalty, the ruin of a life. Even more important, it unseats the person the people have deliberately chosen for the office. The adoption of a lenient standard of proof could mean that this punishment, and this frustration of popular will, could occur even though substantial doubt of guilt remained. On the other hand, the high “criminal” standard of proof could mean, in practice, that a man could remain president whom every member of the Senate believed to be guilty of corruption, just because his guilt was not shown “beyond a reasonable doubt.” Neither result is good; law is often like that. 

. . . . 

Weighing the factors, I would be sure that one ought not to be satisfied, or anything near satisfied, with the mere “preponderance” of an ordinary civil trial, but perhaps must be satisfied with something a little less than the “beyond reasonable doubt” standard of the ordinary criminal trial, in the full literal meaning of that standard. “Overwhelming preponderance of the evidence” comes perhaps as close as present legal language can to denoting the desired standard.

Black, Charles L., Jr. & Bobbitt, Philip, Impeachment: A Handbook, New Edition (p. 16-17). Yale University Press. Kindle Edition. 

Wherein I Take the @nntaleb IYI Test & Fail

Your image of this writer

Herr Doktor Professor: stern master

I’m going to take the Nassim Nicholas Taleb (NNT) test to determine if I am an IYI (“intellectual yet idiot”). Of course, right off the bat you can see I’m trying to play chess with Washington Square hustlers or a pick-up game with NBA studs—I’m out of my league here. I’m not an intellectual, I’m not an academic, and I don’t write for a living outside of legal briefs and memos. I’m just a practicing lawyer. But I do have an abiding interest in ideas. I’ve always been fascinated by how the world works, how it came to this point, and how we might tinker with it. I've enjoyed and believe that I've benefited from reading NNT's books (Bed of Procrustes excepted). But I must emphasize, unlike NNT, I’m an amateur, not a flâneur.

So with my disqualifications in place, let me go through the NNT test, line-by-line, to obtain my ranking. Taleb’s criteria are in plain type followed by my responses in italics.

What's IYI?

 Intellectual Yet Idiot:  [I just said, I’m not an intellectual. Whether I’m an idiot or not is open to further discussion. I imagine—nay, know—there are compelling arguments in the affirmative for this conclusion]

semi-erudite bureaucrat [I am not now nor have I ever been a member of the bureaucratic party. I’ve been either in a partnership or self-employed for about 30 years]

who thinks he is an erudite [I aspire to erudition, I do not claim it];

pathologizes others for doing things he doesn't understand not realizing it is his understanding that may be limited [Maybe, sometimes. Who hasn’t made this error?];

imparts normative ideas to others [Like NNT?]:

thinks people should act according to their best interests [A question of definition here: narrowly or broadly defined? And note “should”, not “do”]

*and* he knows their interests, particularly if they are uneducated "red necks" or English non-crisp-vowel class. [Well, to some extent, yes. I’ve had people pay me for my advice & opinions for over 30 years. On the other hand, I hope I have some sense of humility. Do you know this word, “humility”?]

More socially: 

subscribes to the New Yorker [Yes, I do. Are you suggesting Paris Match instead? In the New Yorker I skip the ads and focus more than I should on the cartoons; indeed, we have a whole book of New Yorker cartoons—quite fun. Is there a penalty for having a New Yorker book--or two?];

never curses on twitter [Although known on occasion to use profane, scatological, or crude language in person, I abjure it in public discourse. There’s already enough vulgarity out there—plus someone would always out do me.  I do, however, admit to excessive snark on Twitter. Perhaps there’s a New Year’s resolution in there]; 

speaks of "equality of races" and "economic equality" but never went out drinking with a minority cab driver [We’ll I’ve lived and hung with people of different races, and I’m in favor of a greater degree of economic equality than what we currently experience. I grew up middle-class in a small Iowa town where rich kids (by local standards) pretty much had to mingle in school with poorer ones because there was only one school and too few of us to avoid some mingling. As to drinking with a cab driver, no; but with my fellow road construction workers? Oh, yeah. It was, you may say, satisfactory]; 

has considered voting for Tony Blair [N/A. I’m not a Brit! But I did vote for Bill Clinton 2x & will for HRC (see below)];

has attended more than 1 TEDx talks and watched more than 2 TED talks [Never been to a TED Talk, but I’ve watched more than two. I rather like them on the whole. I’ve also watched NNT on YouTube at festivals (presumably not literary and not in the UK). How does that score? BTW, some of my favorite peeps have given a TED Talk]; 

will vote for Hillary Monsanto-Malmaison because she seems electable [Deferred to the finale];

has The Black Swan on his shelves [I have two copies: one hardcover in storage & one on my Kindle. Do I get extra credit?]

but mistakes absence of evidence for evidence of absence [It’s a catchy slogan but I have to bone up to determine if the converse is also true: absence of evidence may be evidence of absence. In which case, how do we distinguish the two instances? I will say this from my humble perch as a practicing attorney: try convincing a judge or a jury that X exists when you have no evidence (an absence of evidence) that X exists—a case not to take on a contingent fee. If I find no evidence of tigers in my yard (sightings, paw prints, scats, animal carcasses, etc.), then it's highly likely—although not certain—that there are no tigers in my yard. Despite appropriate and convincing examples in The Black Swan, NNT tries to skate too far with this slogan];

is member of a club to get traveling privileges [no, just credit card miles; no clubs. I wouldn’t want to belong to any club that would have me as a member!];

if social scientist uses statistics without knowing how they are derived [Not a social scientist. I’m respectful but wary of statistics, suspicious that they may conceal lies and damned lies];

when in the UK goes to literary festivals [I’ve never been to a literary festival in the UK, but when in India I go to the Jaipur Literature Festival. How did you like your sojourn there, NNT?];

drinks red wine with steak (never white) [Usually red, but then I’m from the Midwest and care more about the steak anyway];

used to believe that fat was harmful and has now completely reversed [True--after learning about Art DeVany in NNT’s Fooled By Randomness (read in 2007), and then on to Gary Taubes, Mark Sisson and other others of their ilk];

takes statins because his doctor told him so [No, not necessary. Good cholesterol profile because of good fats; see the previous answer];

fails to understand ergodicity and when explained forgets about it soon later [Got me! I’ll check it on Wikipedia later. Allowed?];

doesn't use Yiddish words [Only a schmuck wouldn’t!];

studies grammar before speaking a language [no, my wife—an ESL teacher—wouldn’t let me be so foolish. Besides I need to eat and use the restroom];

has a cousin who worked with someone who knows the Queen [Really? Come on, are all your readers from the UK? I don’t have a Queen];

has never read Frederic Dard [Who? Okay, you got me. But have you read Hammett, Chandler, McDonald, Elmore, Greenleaf—you know, authors that others read? Okay, the last name was a plug for my cousin],

Michael Oakeshott [no, on my list to read, but you’ve read Collingwood & rate him ahead of Oakeshott, correct?],

 John Gray [short pieces only],

or Joseph De Maistre [read about him in the autumn of 1975 in Shklar’s After Utopia & he didn’t seem worth my time; on review, he still doesn’t. Time better spent on Burke. Yes, I know, but Burke is Anglo-Irish and writes in English]; 

has never gotten drunk with Russians and went breaking glasses [Guilty, but I don’t feel guilty];

doesn't know the difference between Hecate and Hecuba [Not off the top of my head, no]; 

doesn't know that there is no difference between "pseudointellectual" and "intellectual" [I’m not sure, but you’ll tell me]; 

has mentioned quantum mechanics at least twice in the past 5 years [No, I don’t understand it, although from what I know, it is intriguing];

knows at any point in time what his words or actions are doing to his reputation [I follow GW (for non-Americans, George Washington) do attempt to maintain a good reputation. I don’t buy the Trumpian notion that any publicity is good publicity.]

But a much easier marker: doesn't deadlift. [I do, but not as often as I should. Do you get credit for kettlebell swings and standing presses? Pavel would give me credit]

The IYI, Taleb adds, look down at the great unwashed Plebes who haven't read Foucault in college [Mme neither, I’m too old, he wasn’t a big deal then]

and treat them like crap - as if they were inferior forms of life incapable of directing their own affairs. [Nope, I don’t truck with that attitude].

But when you make them feel uncultured, lacking in intellect, and unlearned, like all bureaucrao-journalists, being all tawk, they get very queasy: hit them where it hurts.

They are arrogant down, they will be arrogantified from up.

Speaking of arrogance, back to my deferred answer about “will vote for Hillary Monsanto-Malmaison because she seems electable.” A few words:

NNT is using—what is to his mind—guilt by association. Perhaps it’s my attorney-mind or perhaps my wishful thinking that reason can ultimately trump [irony] innuendo, but I have to call “baloney!” on this. (I concede demerits here for not swearing.) Maybe NNT has a good argument about Monsanto and GMOs. As a matter of personality and pragmatics, I give a lot of credence to the precautionary principle. But a lot of those who’ve given these issues serious thought disagree with NNT about the safety of GMOs. I don’t claim to have a definitive answer. Nor does Hillary Clinton, I suspect. (Neither on her campaign website nor in an issues Wikipedia entry could I find anything about GMOs.)  The meme NNT wants to draw upon is that HRC is an insider and therefore in cahoots with multi-national corporations who want to mess with our food while lining their pockets. (Can I get credit for “cahoots” as exotic, albeit not Yiddish?)  Well, okay, the part about the corporations is probably true, but it assumes a naïve understanding of what a person—even a president—knows or can do about any particular issue, especially one not likely to affect the outcome of an election.

The other point is that I support Hillary Clinton for president. I don’t do so because she’s “electable”, I do so because she is the best choice for my vote, and has been since the beginning of the primary season. An unusually large number of people want to kvetch (award Yiddish use points please) about the candidates this year, and if it makes them feel better, go ahead. As Clay Shirky has so persuasively explained, in the end, one of two persons will be elected the next president. One is an experienced prototypical politician with insider experience and credentials—thank goodness! (Non-swearing demerit acknowledged.)  The other is a demagogue. Each election tests a voter’s political intelligence and savvy in deciding whom to vote for or (if politically active), whom to support. But this year it isn’t just a test of political judgment, it’s a test of character and of fundamental issues of political morality. To suggest otherwise is reprehensible.

And if supporting Hillary Clinton means I fail the test, then screw the test! (Can I get half-credit for this last phrase, Herr Doktor Professor?)