Senate Impeachment Trial: Day Two

After a wild and lengthy day, Day One of the Trump Senate Impeachment trial is in the books for historians to expand and interpret for future generations of Americans to see, hear, and read. That what we are experiencing has only happened two previous times in 270 years is incredible. That alone should give all Americans pause when considering the seriousness of any presidential impeachment process.

Yes, Day One was partisan. Yes, it was full of allegations, many of which were outrageous in light of their lack of evidentiary foundation. But the fact that THIS group of House Managers is led by Representatives Adam Schiff (D-CA) and Jerry Nadler (D-NY) explains to us all how and why such outlandish accusations were made.

Day One was a day to “simply” set the process with which the Senate will use for this impeachment trial. The word “simply” is in quotation marks simply because there was nothing simple in the day’s trial activities. Senate Majority Leader Mitch McConnell (R-KY) at the beginning of the day introduced a resolution for the impeachment process. Thirteen hours later, after all of the accusations, vitriolic tantrums, and cries of  “Lies, Lies, Lies!” by Rep. Nadler, the Resolution was brought to a vote by Supreme Court Chief Justice John Roberts. It passed down partisan lines, 53-47.

Before we look at Day Two’s trial bullet points, I want to make sure all TNN partners understand what the most contentious topic in Day One involved: refusal to appear before Schiff’s House committee by members of the Trump Administration. Several of those Administration members were issued subpoenas by the House Judiciary Committee for their testimonies but declined to appear. This so roiled Democrats that one of their two Articles of Impeachment, “Obstruction of Congress,” was because of the refusal of those people to appear before Congress.

What does the law say about such refusals to honor a Congressional subpoena? Are there court decisions based on such instances, and, if so, what were their outcomes?

Let’s look quickly at this before we get to Bullet Points:

The Supreme Court has recognized Congress’s power to issue subpoenas, saying in order to write laws, it also needs to be able to investigate. If lawmakers want to punish someone who ignores a congressional subpoena, they typically first hold the offender “in contempt of Congress.” The contempt process can start in either the House or the Senate. Unlike with legislation, it only takes one of the chambers to make and enforce a contempt citation.

How is a contempt finding enforced?

The Supreme Court said in 1821 that Congress has “inherent authority” to arrest and detain witnesses who defy hearing subpoenas. In 1927, the high court said the Senate acted lawfully in sending its deputy sergeant-at-arms to Ohio to arrest and detain the brother of the then-attorney general, who had refused to testify about a bribery scheme known as the Teapot Dome scandal. It has been almost a century since Congress exercised this arrest-and-detain authority, and the practice is unlikely to make a comeback.

Alternatively, Congress can ask the U.S. attorney for the District of Columbia, a federal prosecutor, to bring criminal charges against a witness who refuses to appear. There is a criminal law that prohibits explicitly flouting a congressional subpoena. But this option is also unlikely to be pursued, at least when it comes to subpoenas against executive branch officials, given that federal prosecutors are part of the branch’s Justice Department.

The most recent example of this appeal to the D.C. Court occurred when Obama Attorney General Eric Holder defied Congressional subpoenas for records from the “Fast and Furious” gun-running scheme the Obama Department of Justice instigated at the southern border. Holder defied the Congressional “Contempt of Congress” finding. Congress asked the D.C. Federal Prosecutor — an Obama appointee — to make a case in federal court against Holder. The prosecutor declined to prosecute.

Congress has opted for a third and final approach to enforcing a contempt finding: getting its lawyers to bring a civil lawsuit asking a judge to rule that compliance is required. Failure to comply with such an order can trigger a “contempt of court” finding, enforced through daily fines and even imprisonment.

That explanation of non-compliance with a Congressional subpoena is vital for you to understand. Why? Because Democrat House Managers on Day One used most of their time in the 13-hour hearing to harp on their need for the Senate to enforce House subpoenas that were denied by Trump Administration folks. These demands are ludicrous. Why? Federal courts (including SCOTUS) have previously refused to involve their courts in such cases because the litigants did not exhaust all legal remedies provided under the Law FIRST.

House Democrats never took any legal actions detailed above to enforce their subpoenas. Instead, they rushed their impeachment case to the Senate, hoping the Senate would do the job of the House. And the Senate so far has denied their requests.

Now to Bullet Points.

Day Two Impeachment Bullet Points

  • Opening arguments began in President Donald Trump’s Senate impeachment trial on Wednesday, with Rep. Adam Schiff, D-Calif., telling senators they need to remove Trump from office because he’s shown he’s ready and willing to cheat in the 2020 election.
  • Schiff picked up where left off on Tuesday with constant baseless jabs at the President with remarks like these: “The president’s misconduct cannot be decided at the ballot box because we cannot be assured the vote will be fairly won,” Schiff told the Senate. He called Trump’s efforts to get a foreign government to announce an investigation into his political rival “a gross abuse of power” that requires the Senate to act.
  • It is probable that President Trump’s legal team won’t begin his defense until Saturday. Both the House Managers and Trump’s legal team have 24 hours (over three days) to present their cases.
  • Schiff gave an overview of the House Managers’ impeachment case against the President, saying once again that the House case “paints an overwhelming and damning picture of the President’s efforts to use the powers of his office to corruptly solicit foreign help in his re-election campaign and withhold official acts and military aid to compel that support.”
  • Reps. Jerry Nadler (D-NY), and Sylvia Garcia (D-TX), followed Schiff, and they took their case one step deeper. They alleged Trump lawyer Rudy Giuliani is responsible for a  smear campaign against then-U.S. Ambassador to Ukraine Marie Yovanovitch. According to Nadler and Garcia, Yovanovitch was thought to be a roadblock to Giuliani’s plan to try to dig up dirt on former vice president Joe Biden and his son, who was on the board of a Ukrainian gas company.
  • There was an odd twist in the Democrats’ discussion about their case for impeachment when  Rep. Val Demings (D-FL) presented a tweet from President Trump who tweeted from Air Force One Wednesday while returning to Washington from Davos, Switzerland. Here’s the President’s tweet: “I thought our team did an excellent job. But honestly, we have all the material. They don’t have the material.” Here’s Demings’ interpretation of that tweet: “Trump’s tweet proves the second article of impeachment, obstruction of Congress.” She described the charge as “covering up witnesses and documents from the American people.” Demings added, “This morning, the President not only confessed to it, but he also bragged about it.”
  • “Witness trading” was suggested as a way to allow witnesses to testify in the Senate trial. “Witness trading” is a process where Democrats would choose a witness they want to testify, and Republicans would then get one witness of their choosing to testify. That hit a roadblock. Schiff shot down speculation that would be allowed even if Republicans agreed. “This isn’t like some fantasy football trade,” Schiff said. “Trials aren’t trades for witnesses.”
  • Nothing new in the way of evidence was presented by House Manager. Rep. Schiff once again doubled-down on their constant claim: “Over the coming days, you will hear remarkably consistent evidence of President Trump’s corrupt scheme and coverup,” Mr. Schiff (D., Calif.) said, standing at a lectern on the Senate floor. “There is no serious dispute about the facts underlying the president’s conduct.”

Summary

Just imagine how difficult it was for Republicans to sit on their hands during nine hours of the SOS. (Same Old Stuff) Senate rules prevented any replies, responses, or outbursts from the President’s legal team members. In several post-trial session interviews, several GOP leaders confirmed once again that the House Managers in presenting their case for impeachment on Day Two did nothing more than repeat all of their rhetorical allegations from Day One, adding nothing more than the assumption of the “true” meaning of President Trump’s Davos-to-D.C. Air Force One tweet.

To put a period on Day Two, one can say the most apparent two things revealed by House Managers is that 1) they have NO evidence to support either of the two articles of impeachment, and 2) they are desperate for evidence though they have declared numerous times in testimony that “we have iron-clad evidence of the President’s impeachable wrongdoing.” Their desperation explains their rabid and constant pleas for Senators to allow witnesses to be called to testify in the Senate Chamber. THEY HAVE NO EVIDENCE OF IMPEACHABLE OFFENSES.

My conclusion? I’ll sum it up with this trip down Memory Lane with you. The day after President Trump’s inauguration I predicted three things were certain to happen during his presidency: Democrats WOULD impeach the President before the end of his first term in office, 2) the Senate would summarily reject the House Managers’ case against the President and not remove him from office, and 3) President Trump will not only win the 2020 election, but the GOP will hold the Senate, retake control of the House while increasing their majority status in the Senate.

I’m one-for-three so far. I hope for all Americans before mid-November this year I’m three-for-three!

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