Was the Trial of Trump Fair?

Trump will soon be acquitted. All he needs is 34 votes out of 100 to escape conviction. This blog assumes the trial is over and Trump has been acquitted.

The trial held in the Senate is virtually over. Was it fair? Were both sides able to present their cases? By and large, yes. Did the trial rules favor one side or the other? By and large, no; the deck wasn’t stacked by procedures. Was the trial rigged? There is no evidence of that. No evidence has been made public showing us that individual senators didn’t honor their oaths in conducting the trial. No evidence has been offered suggesting senators engaged in wrongful conduct, misconduct, or violating the public trust during the trial. No evidence has been produced that senatorial votes were paid for or influenced by illegal external pressures, threats, extortion or tampering. We cannot say at this point that a single senator did anything less than vote about new witnesses and Trump’s guilt or innocence with due care and deliberation.

Nonetheless, Democrat leaders are saying the Senate trial of Trump was rigged, unfair, and a sham. They are saying that when the Senate did not convict him of the two charges against him (abuse of power and obstruction of justice), he was not really acquitted or exonerated or found not guilty. They say he eluded justice because the trial was flawed or conducted with a fatal flaw. Their allegation is that the Senate didn’t conduct a real trial because it decided not to call more witnesses. This allegation has no substance. The Senate acted constitutionally. It has the constitutional power to try the case as it sees fit. It did so entirely in the open. Votes were in the open. Nothing unusual or untoward has surfaced that makes the votes illegitimate. There was no fatal flaw that arose on the score of procedures.

The Senate did decide to bring the trial to a close without further investigation and witnesses. That is within its power. The vote was close, 51 to 49, but this vote was within its power. Many considerations went into each senator’s vote. Each and every senator had to consider what would be involved if the trial were prolonged further. Each had to decide if they needed or wanted more evidence and witnesses before deciding on Trump’s guilt or innocence. Each had to consider many things, and we cannot know what they all were.

This was democracy in action. It relies on votes. Each person voting weighs a number of factors. The overall tally merges all the thinking into one final outcome. The Democrats have no reason to say that this democratic process produced anything less than a fair trial of Trump, that is to say, any less fair than any other such vote held by a political body. The Senate followed the Constitution to the letter. It is given the power to try an impeachment and it has.

How do the Democrats go from the fact that the Constitution was followed by the Senate to the conclusion that the trial was rigged or conducted in such a way as to ensure Trump’s acquittal? The Senate vote not to call more witnesses didn’t abort the trial. It didn’t kill it or its fairness. It didn’t cause a fair trial to be thwarted. Both sides of the case had their opportunity to present their cases, and the body of senators reached a conclusion that they’d seen and heard enough. The Democrats had ample opportunity in the House and the Senate to build and make their case; and the senators themselves decided that they had seen and heard enough of what both sides had to say.

Democrats refused to accept the result of the democratic process in the election of 2016. They claim to value and protect democracy, but in this important case, they haven’t. They sought to de-legitimize the election and the new administration. They decided to thwart the new government administration. Some immediately called for impeachment. Others made the false claim that Russian interference made the election illegitimate.

This impeachment has failed. There is now a repeat performance. Democrats again refuse to accept the result of the constitutional process and its voting, because they have lost, because they do not like the result. The Democrats are reaching for any means they can devise to use as a weapon against Trump. Trashing the trial of Trump as false is their latest device.

In this case, Democrats claim that a trial must have witnesses, so that a trial without them is not a true trial. This is a lie. The House presented the Senate with a great deal of testimony and evidence that it has obtained, enough that it viewed the case against Trump as money in the bank. For more on this point and related points, see this article.

It should be noted that trials often accept evidence without witnesses. Evidence can be presented in courts of law without witnesses being present. Such evidence can be presented via depositions, sworn testimony, interrogatories, and admissions. Courts accept a great deal of evidence based upon judicial notice of adjudicative facts. The House called numerous witnesses and could have called more. It produced a large volume of documents. Trump made available the key telephone call that the case hinged on.

The Democrats had a fair shot at showing Trump’s guilt, and they fell short. It is in their political interest to tie up Trump by prolonging the trial indefinitely during the election year, so that they could constantly tell America that he bears a scarlet letter and that he’s a national security threat who is actively recruiting foreign countries in his re-election bid.

One may read the impeachment clauses here. This source has links to other documents about impeachment at the time that the Constitution was being drafted.

Anti-federalist Brutus observes “To support the [impeachment] charge, it will be necessary to give in evidence some facts that will shew, that the judges commited the error from wicked and corrupt motives.” The context differs, but still to convict Trump, his accusers had to show that he acted from “wicked and corrupt” motives. They failed to do this. If they had been able to accomplish this, it would have made huge headlines, but they had no proof. The actual evidence suggested otherwise. There are significant doubts that Trump had a corrupt motive in regard to aid to Ukraine. The Democrat accusers assumed that Trump had to be out to get Biden, a political rival, but they didn’t prove it with all their witnesses.

Impeachment was debated at some length by the framers. It’s a delicate matter. If impeachment is too easily done or requires a low bar of maladministration, then it shifts power away from the president and toward factions in Congress. If impeachment is too difficult to achieve, then one must wait until the next election to correct what may be high crimes being committed. The framers made it difficult to impeach a president, as all he needs is one-third of the Senate votes plus one in order to escape conviction.

In the case of Trump, the Democrats impeached upon relatively weak and minor grounds. Trump did nothing out of line with what other presidents have done, if even that. It was a peculiar alignment that has led to the futile Democrat act of impeachment. Schiff, Nadler and Pelosi, each had his or her own personal and political feelings and reasons for moving ahead against Trump. This was an unusual conjunction of action based upon disparate motives and psychologies. They seemed to know that they would not see Trump found guilty. Schiff and Nadler seemed possessed by their perceptions of Trump and their own pet hobby-horses, Schiff of Russia and Nadler of judicial process. Pelosi seemed to have decided that political advantage lay with accepting their fixations and that of other Democrats, and that impeachment could even be fashioned into a viable anti-Trump weapon, no matter the outcome. Pelosi’s support has been calculated, as she has time and again fastened upon avenues of propaganda, like the idea that the trial is of no significance because trials must have witnesses. All three seem to hate Trump passionately. Pelosi goes out of her way to take his remarks out of context and slander him. Trump brings out the worst in Pelosi.

The Democrats extol democracy, until votes go against them. Then they cry “foul”, which is what they’re saying about the 2016 election and the impeachment trial.

The Democrats who have behind-the-scenes power are going to manipulate the rules so as to thwart a Sanders nomination. That’s how far democracy gets within their party.

This lip service to democracy and voting results is not restricted to Democrats. Both Obama and Trump have disregarded election results in foreign countries, again and again.

The U.S. Senate likes to think of itself as the greatest deliberative body in the world. It is therefore more than strange to find it being accused of not conducting a fair assessment of the charges against Trump. Do the Democrats believe in democracy or not? Do they accept the result of 100 senators consulting their consciences and reaching judgments thereupon or not? Are they not tearing at the Senate as an institution of probity, trustworthiness and integrity? Are they not tearing down the very democracy they claim to defend?


8:04 pm on February 1, 2020