WaPo columnist: Who does Schiff think he's kidding on trial analogies?

WaPo columnist: Who does Schiff think he's kidding on trial analogies?

Democrats see Adam Schiff’s presentation in the Senate, Politico reports, as “their last, best shot” to flip enough Senate Republicans to get them to finish their case for them. It’s their last shot, most definitely, as they will have to take a seat for the defense rebuttal from Donald Trump’s legal team. Whether or not it was a “best shot” remains to be seen, but it didn’t impress Washington Post columnist Henry Olsen, despite the lavish praise from some other quarters of the media.

First, however, Politico sums up the presentment from House Democrats:

Rep. Adam Schiff, the top prosecutor in the impeachment trial of President Donald Trump, launched Wednesday what Democrats see as their last, best shot to convince a handful of Republican senators to join their push for witnesses and documents.

The House impeachment managers’ opening arguments, which could stretch for up to three days, are as much a pitch to the American public as to the small but powerful group of Republicans — including Sens. Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah — who could determine whether the Senate will hear from witnesses Democrats believe are central to their case. …

Schiff repeatedly emphasized aspects of the case that would be enhanced with testimony from key witnesses, including acting White House Chief of Staff Mick Mulvaney and former national security adviser John Bolton.

“The complete story is within your power to request,” Schiff said as senators looked on.

But he also insisted that the House’s case was already “overwhelming” and in many ways uncontested.

And here we have the basic contradiction of the House Democrats’ case for more witnesses. If it’s “overwhelming” as is, then there is no need for more witnesses. If it’s “uncontested,” which it most certainly is not, then there’s no need for a trial. Schiff likes to throw these words around as though uttering them out loud turns them from argument into fact, but that’s not how argument works, outside of court and especially inside of court. The problem for Schiff is that the House impeachment consists entirely of argument, and entirely lacks direct evidence and direct testimony. That is why Democrats are so desperate to get a handful of Senate Republicans to do the work that Schiff and Jerrold Nadler refused to do, simply because the timing didn’t suit their tastes.

This is just one of the many ways in which Schiff’s pose as a trial prosecutor fails to work, and Washington Post columnist Henry Olsen laid out several more last night. After Schiff tried to analogize the House impeachment to a federal prosecution, Olsen rebuked Schiff’s “disingenuous” argument and proceeded to demolish it:

Federal criminal trials are governed by the Federal Rules of Criminal Procedure. One might argue that the entire analogy falls at the outset, as the House Democrats’ articles of impeachment do not claim that President Trump committed a crime. But overlooking that minor point, the House’s procedure failed every test those rules establish.

The House’s articles have been analogized to an indictment, but indictments can only be brought if they are sanctioned by a neutral, disinterested party. A prosecutor must persuade either a judge or a grand jury that there is probable cause a defendant committed a crime to initiate a case. No serious person can call the House Democratic caucus a neutral, disinterested party.

Nor can a prosecutor obtain evidence under subpoena on their whim. Anyone with a subpoena to provide testimony or written evidence can challenge that in court, as many recipients of such subpoenas in investigations supervised by the office of former special counsel Robert S. Mueller III did. That is exactly what the president has tried to do in many instances with respect to subpoenas issued by committees controlled by House Democrats. But Schiff and his colleagues not only chose not to permit the judicial process to play out with respect to those subpoenas; they chose to call the president’s attempt to avail himself of his rights “obstruction of Congress” and an impeachable offense itself. How Orwellian.

The list goes on. A defendant can file a motion to suppress any evidence obtained during an investigation that she believes was illegally obtained. That motion is heard by a disinterested party — a federal judge — and that judge’s opinion can be appealed to an appellate court before the trial ever begins. Again, the House procedure denied the president that basic right by making the prosecutor, Schiff, the judge.

Olsen also rips Schiff for presenting two new elements to his case for calling them “evidence.” The Lev Parnas transcripts, Olsen notes, has already been publicly mischaracterized by Schiff, or as Olsen puts it “wildly misconstrued,” all but eliminating their evidentiary value. The GAO report on the Impoundment Control Act wouldn’t even be admissible in federal court for any reason, as it is a non-expert opinion on legal matters, which is not in GAO’s purview. (One obvious corroboration of that fact is that they cited a violation of the ICA when in fact the money in question got spent within the budget year, which means no violation actually occurred at all.) Olsen doesn’t mention this, but the ICA is a civil issue, and the explicit remedy for a violation is within the statute — a lawsuit from the Comptroller General to release the funds. It’s not a “high crime or misdemeanor,” and in fact it’s not even a crime at all.

If this is the Democrats’ best hope for getting witnesses called, their desperation must be rising by the hour. All Schiff and his fellow managers offered yesterday was speculation and hearsay without any specific crime alleged, all the while begging the Senate to provide them the missing pieces of their case.

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