15 November 2019

Clown World Or Real World, Cases Must Begin And End With The Law

With the second day of Congressman Adam Schiff's impeachment inquiry hearings now in the history books, it is time to once again beat the dead horse, and remind everyone that, regardless of the pontifications of witnesses and Congressmen alike, the two immutable qualities of the impeachment inquiry itself are the actual facts of what was said, when it was said, and to whom it was said, and the particular letter of the law with regards to whatever was said.

The law is the framework within which this impeachment inquiry must fit. At every turn, every bit of testimony and political speechifying must conform to the dictates of the law.

Clown World or Real World, that is always going to be the order of things.

Therefore, once more we must step back and remember what the law actually is--what the statutes and regulations themselves actually say.

The Case Of The Tampering Tweet

The most (in)famous moment during the hearings came when Congressman Schiff interrupted proceedings to read into the record one of President Donald Trump's tweets, in which the President was critical of the witness, former Ambassador Marie Yovanovitch.

Democrats immediately denounced the tweet as "witness intimidation". The legacy media went predictably over the top, with one op-ed piece in the Los Angeles Times describing it as "Twitter acid". Suffice it to say, that was an obvious exaggeration--one could even say it was a "triggered" exaggeration.

What does the law say about it?

Witness tampering is indeed a crime, defined at 18 USC 1512. The applicable portion is 1512(b) and 1512(d):
(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—
(1) influence, delay, or prevent the testimony of any person in an official proceeding;
(2) cause or induce any person to—
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding;
(C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or
(D) be absent from an official proceeding to which such person has been summoned by legal process; or
(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation supervised release,, parole, or release pending judicial proceedings;
shall be fined under this title or imprisoned not more than 20 years, or both.
(d) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from—
(1) attending or testifying in an official proceeding;
(2) reporting to a law enforcement officer or judge of the United States the commission or possible commission of a Federal offense or a violation of conditions of probation 1 supervised release,,1 parole, or release pending judicial proceedings;
(3) arresting or seeking the arrest of another person in connection with a Federal offense; or
(4) causing a criminal prosecution, or a parole or probation revocation proceeding, to be sought or instituted, or assisting in such prosecution or proceeding;
or attempts to do so, shall be fined under this title or imprisoned not more than 3 years, or both.

Was there any threat, actual or implied in Donald Trump's tweet? No.

Did Donald Trump threaten Ambassador Yovanovitch? No.

Did Donald Trump persuade, corruptly or otherwise, Ambassador Yovanovitch? No

Did Donald Trump, by that tweet, "...influence, delay, or prevent [her] testimony"? Given that she was already testifying before the House Permanent Select Committee on Intelligence, I do not see how that is even possible.

Did Donald Trump harrass Ambassador Yovanovitch, thereby hinder, delay, or prevent her testimony? No.

Was the tweet in poor taste? Some would argue that it is. Some would argue the tweet is merely un-gentlemanly, boorish, and crass. Perhaps it is.

But boorish and crass tweeting does not add up to "witness intimidation". A plain reading of the tweet fails to establish any of the essential elements.

Hearsay Evidence Is Better Than Direct?

Donald Trump's tweet was matched on the first day for outlandish perspectives on the law by Congressman Mike Quigley's take on hearsay evidence:
“I guess to close, a primer on hearsay, I think the American public needs to be reminded that countless people have been convicted on hearsay,” Quigley said. “Because the courts have routinely allowed and created, needed exceptions to hearsay. Hearsay can be much better evidence than direct as we have learned in painful instances and it’s certainly valid in this instance.”
In the federal courts, where the Federal Rules of Evidence apply, Rule 802 establishes firmly that, as a rule, hearsay evidence is not admissible:
Hearsay is not admissible unless any of the following provides otherwise:
  • a federal statute; 
  • these rules; or 
  • other rules prescribed by the Supreme Court.
The laundry list of exceptions to the hearsay rule are found in Rule 803.

Yes, there are exceptions to the hearsay rule, but the general rule--and thus the presumption--is always that hearsay evidence is not admissible, and that direct evidence is what must be presented before the court. Where Congressman Quigley got the idea that the rule was otherwise remains very much a mystery.

On the subject of hearsay, one has to marvel at the amount of hearsay that is being touted as evidence by Congressman Schiff and the House Intelligence Committee.  By far the most memorable example of this is a sentence from Ambassador Gordon Sondland's addendum to his closed door deposition:
Ambassador Taylor recalls that Mr. Morrison told Ambassador Taylor that I told Mr. Morrison that I had conveyed this message to Mr. Yermak on September 1, 2019, in connection with Vice President Pence's visit to Warsaw and a meeting with President Zelensky.
Congressman Jim Jordan's questioning of Ambassador Bill Taylor on Day 1 regarding this particular item is a memorable piece of performance art in its own right, and conveys quite effectively why hearsay is not highly regarded as a form of evidence.


Even Ambassador Taylor effectively conceded at the end of this exchange that his testimony was almost entirely hearsay (emphasis added): 
As I think I was clear about, I’m not here to take one side or the other or to advocate any particular outcomes. Let me just restate that. Second thing is that my understanding is only coming from people that I talked to.
Ambassador Marie Yovanovitch's testimony today (Day 2) seems equally problematic as regards the amount of direct evidence vs hearsay evidence she is able to provide. She acknowledged this in her opening remarks, where she pointed out that she had been recalled from Ukraine on May 20, 2019, two months before the July 25 phone call that is at the epicenter of this impeachment inquiry.
Several other events occurred after I returned from Ukraine. These include:
President Trump's July 25, 2019 call with President Zelenskiy; The discussions surrounding that phone call; and Any discussions surrounding the delay of security assistance to Ukraine in Summer 2019.
This frank admission prompted Republican Ranking Member Devin Nunes to question why Ambassador Yovanovitch was even giving testimony, as the focal point of the inquiry is the July 25 phone call between President Trump and Ukrainian President Volodomyr Zelensky: "I'm not exactly sure what the ambassador is doing here today."

Thus far, in the depositions from the closed-door hearings just released and in the public testimonies from both Day 1 and Day 2, hearsay evidence is the sum total of what the Democrats have assembled thus far to support drafting Articles of Impeachment against President Trump.

Even CNN legal analyst Jeffrey Toobin conceded after Day 1 that the lack of direct evidence provided by both George Kent and Bill Taylor was "a problem."

Adam Schiff Still Needs A Case

As I covered in my last blog post, Congressman Schiff has a very simple objective in this entire impeachment inquiry: he must make a plausible case that President Trump has so abused his office and the trust of the American people as to warrant his immediate removal from office. Based on Congressman Schiff's own public statements, his case revolves around a charge of either bribery or extortion. These are specific allegations, predicated presumably on specifics facts and circumstances, with specific statutes describing each.

Bribery is found at 18 USC 201(b). Extortion is criminalized by 18 USC 872.

Nothing that has been presented in the public hearings thus far has made even the slightest case for either bribery or extortion. Nothing has made a case for any abuse of power.

All three witnesses have made it quite clear that they have significant policy disputes with President Trump, that they disagree on the propriety of President Trump requesting the Ukrainian government to investigate American citizens. There might even be several substantive policy debates to be had arising from their commentaries in these hearings.

But policy disputes are not impeachable offenses. They are not bribery, nor are they extortion, nor do they reflect any abuse of Presidential power.

Adam Schiff came into these hearings needing to present a case for impeaching the President. He still needs to present that case.

All Laws Matter

The standard for impeachment is specific. Article 2 Section 4 of the Constitution lays out the precise threshold for an impeachable offense: "Treason, Bribery, or other high Crimes and Misdemeanors." In order for an impeachment to happen, the House of Representatives must make a case, however implausibly, that a President has sorely abused his office. There has to be a clear sense of malfeasance, else there is no impeachable offense. That clear sense of malfeasance comes, in large part, from conforming an argument for impeachment to the relevant statutes.

In order for the Democrats to impeach Donald Trump, they must be able to coherently explain how it is that Donald Trump abused his office. Hearsay evidence and appeals to emotion are not explanations, and they certainly do not conform to any statute currently in force. Emotions, feelings, and the curriculum vitae of witnesses may make for a weighty, ponderous, presentation, but they are irrelevant.

The facts are what matter.

The laws are what matter.

The Constitution is what matters.

In the ultimate display of Clown World logic, Congressman Schiff and the House Democrats have ignored the facts, ignored the law, and are perilously close to disregarding the Constitution altogether. The extent to which they will "get away" with their own serial abuses of their authority remains to be seen, but it is difficult to discern any way in which the hysterical and hyper-partisan inquiry Schiff is conducting will end well for the Democrats.


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