- Jun 6, 2007
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The impeachment trial in the Senate is an historic very serious matter for our country for it deals with removing the elected head of the Executive Branch of government one of the nation's three co-equal branches of government and could set a very harming precedent by dramatically weakening that branch! Because the Republican caucus is in the majority in the Senate they have the power in the impeachment trial so I offer this analysis to them in the hope they will heed the wisdom and protect the American people's interests in having a fair and not abused Presidential impeachment tool for the country!
The recent disclosure that the former National Security Advisor John Bolton in his upcoming book will say that President Trump told him that he was maintaining the hold on the aid for Ukraine until Ukraine announced that they would conduct the dual investigations has to change the calculations for the Republications on whether they allow a witness to be called for the impeachment trial. Because prior to this disclosure the only thing the Democrats had in regards to the central allegation that President Trump put a hold on the aid until he got the Ukrainian investigations was "hearsay" evidence, testimony from third parties, not suitably reliable to make one criminally culpable; the notorious Mulvaney's statement at a Press conference dealt only with the investigation into the 2016 election and it could have been made because it was his interpretation of the circumstances around the Ukrainian matter one cannot conclusively conclude from that statement that President Trump himself stated that announcement of an investigation was a condition for lifting the hold. The important point is that the Senate now knows of direct evidence of the central factual allegation against President Trump if they don't try to responsibly allow it to come into evidence they are not conducting a fair impeachment trial; the critical interests for the American people here is that no precedent be set that unfair impeachment trials are okay for the U.S. Senate. So what I am proposing is that the Republicans put an offer on the table for the Democrats, the specifics being the Republicans will support Bolton testifying and the Democrats support two constitutional/criminal law professors of Republican's choosing to testify and Democrats agree all motions for additional witnesses and documents be allowed will be dropped; this evidence will be entered closing arguments will be made and the Senate will vote on the articles of impeachment - whatever the outcome this impeachment consuming grip on the nation will end soon!
The reasons the Democrats should accept this deal because if they get the four witnesses they want the Republicans will get their witness wish list and the trial will turn into a massive and shocking mud slinging contest. The Republicans will call former Vice-President Joe Biden to testify to establish that it was legitimate to call for a corruption investigation into him and his son's activities in Ukraine and Joe Biden will leave with his reputation incurring a giant black mark on it. Any legitimate review of Joe Biden's behavior in this matter would conclude that it was a colossal lapse of judgment him not recusing himself from dealing with Ukraine once his son took the Board position for Burisma and at minimum he unwittingly derailed the corruption investigation of the extremely corrupt Ukrainian Oligarch Zlochevsky. Anyone with good sense would know that the then President of Ukraine Poroshenko and his top lieutenants would have known that Biden's son took that job at Burisma and these were people that thrived in a vey corrupt society where you play the game you don't mess with powerful people's family one can take it as a given that the Poroshenko team let the Chief Prosecutor Shokin know you lay off Zlochevsky because otherwise Biden's kid could lose his job at Burisma and Biden could take it out on us by not fully helping us prosecute the war against Russia. Moreover, on that day when Biden arm twisted Poroshenko into firing Shokin by threatening the loan guarantees Poroshenko that same day put Lutsenko in the job. Does anyone really think Lutsenko was going to bring criminal charges against Zlochevsky even if there was a mountain of evidence against him Poroshenko a big fish that thrived in corrupt lakes wouldn't risk falling out of favor with Biden it was probably a condition for Lutsenko getting the job he commit to not go after the corrupt Zlochevsky and as we learned Lutsenko closed the Burisma investigation with no charges filed. The patently obvious reality is that. Biden obstructed the fight against corruption in Ukraine not remedied it with his involvement.
Republican's will call Congressman Schiff whose bread crumbs tossing of an unfair process could fill a U-Haul truck and it will be shown that in truth him with Congressman Nadler let politics take control of their actions and resulted in them leading the Democratic Party to invest so much political capital into the position that they have the impeachment case and it will be done that when eventually a responsible scrutiny of the evidence was conducted and it wasn't there it was too late for the Democrat Party to back out their credibility amongst the American people and especially their base would have suffered too much of a blow for a back down; so the country has too go through this massive impeachment division so Schiff can be a political big shot a star, what a disgrace! Republicans will call the whistleblower who is clearly unprofessional and who is clearly a person that puts his or her politics above duty. Republicans will call witnesses that will provide evidence that Democrat witnesses like David Holmes and others who believed policy differences with the President licensed them to trash and throw the President under the bus in front of the nation during the House hearings were never Trumpers and opportunists! Republicans should subpoena all the staff and the Democrat members of the House Foreign Affairs Committee and ask then when they learned of the hold on the Ukraine aid, from the testimony of Deputy Asst. Secretary of Defense Laura Cooper we know as early as July 25th 2019 some on this committee knew of the hold issue and we know that Ms. Cooper believed the Impoundment Control Act required by August 6 the hold be lifted so why wasn't the House running to court getting a Judge to overrule the illegal hold to stop this Presidential abuse of power that put him in violation of the U.S. Constitution and his oath of office could it be that the President's behavior only deserved this label when the issue of how do we impeach this President was on the table - for the House members with unclean hands enter the videos of their depositions into evidence at the Senate Impeachment trial!
The reason the Republicans should accept this deal is because the facts are the facts they're stuck with the facts which now are that Bolton is going to spill his guts that President Trump conditioned lifting the hold on Ukraine announcing the investigations. This now gives the Democrats a strong Republican cover-up argument; they can use this to fire up their base and fence sitters so they come out and vote in the November election their Party will say to them make your voice heard that the Republican cover up was wrong! Letting the Bolton evidence in isn't fatal to the President's case as Alan Dershowitz argued during the trial and doing so takes away the cover-up argument from the Democrats. The applicable law is favorable to the Republicans; to the President benefit the law authorizing the $391 million aid conditions the release of this money to the Ukraine government taking sufficient steps to fight corruption. Although the DOD announced the condition was met who is the top authority over this agency, that is right the President. America's history is replete with the President overruling one of his agencies even in recent times. President Obama did it at least twice to my recollection; one, there was a strip mining company operating in West Virginia that had it's clean air permits revoked by President Obama and there was an energy company drilling off the coast of Alaska that likewise had its clean air permits revoked! What is the length of the hold here forty-eight days I suspect research on the history of Presidential holds on foreign aid would show this is a short hold, a petty criticism especially in light of the fact that neither the delivery of a missile or even a single bullet to Ukraine was delayed because of the hold! The Democrat case that President Trump violated the Constitution in the Ukrainian aid hold matter falls because the President had a legal basis for doing everything he did in that matter!
Republicans should leverage allowing Bolton for agreement from the Democrats to allow two good constitutional law Professors of the President's choosing to testify because the Republicans haven't really made the knockout blows in the trial they should have and these witnesses could deliver the result. First, Republicans need to stop this smoke screen by the Democrats that the Constitution doesn't require the President to have committed a crime to be impeached. Statements made in the Federalist Papers and at state constitutional conventions are not persuasive are not strong authority they were made after the delegates convention in Philadelphia they were made to get the Constitution ratified in a young nation that was frightened that the federal government would become another onerous British King. What is relevant in trying to determine the delegates intention is that convention's record which are very sketchy. We know from the delegate's convention a motion to make the impeachment standard mal-administration was voted down because they didn't want a legislature that was anti the President to have the power to remove the President on that basis. Largely what America is stuck with is the language of the Constitution which sets forth a narrow standard a serious crime is needed; also I suspect that good statutory interpretation would also reason that if the delegates wanted abuse of power to be the standard they could have readily put it in, it is so obvious an issue which could arise, the delegates could have added a provision like if the President conducts an official act which majorly benefits the President personally and majorly hurts the interests of the American people that is sufficient grounds but they didn't. The Republicans advocates on this heretofore are outstanding lawyers but weak witnesses for heavens sake the Democrats have videotape of them saying just the opposite view they are saying today. Also, a good Constitutional law professor should rip to shreds some of the preposterous arguments the Democrat Congressman Nadler argues like that the phrase high crimes and misdemeanors was known to lawyers in colonial times to mean more than violation of criminal laws; the delegates to the convention were largely farmers, soldiers and shop keepers they weren't learned lawyers to them the phrase meant want the language in the phrase means. Nadler argues that bribery wasn't a statutory crime at the time so the Constitution doesn't limit the grounds for impeachment to just crimes, I bet if you could ask every single one of the delegates at the convention if they thought bribery was a crime they would say yes they do!
The other thing that a good Constitution law professor could explain and I think this is the most alarming thing about this whole impeachment ordeal and the massive misbehavior from Democrat Americans and their allies rivals the scandal prior to 2009 with the fraud of massive numbers of people in the financial industry giving people home loans they could not afford to pay when the interest rate reset and people packing these loans into bonds and selling the bonds is the presuming of motive in a criminal context.
During the trial a question from Collins, Murkowski and Romney directly addressed the issue but the trial should make a big deal out of it which is when there is several motives for doing something is it okay to ignore the legitimate motives in a criminal context. This is relevant because it would have been a legitimate motive to request the Ukraine government to investigate the Ukrainian Information technology company that discovered that Russian agents were the hackers of the DNC emails to determine if Ukrainian actors had a hand in the hacking not just the Russian government so as to correct the record where the American government's position is that it was the Russian government alone and it would not have been a good motive to take this action if it was just for the help in the 2020 election. This permissiveness of subjective motive selection in a criminal context is alarming and scary beyond words it could put America on a trajectory where it becomes a totalitarian country in which good people are wrongfully imprisoned and abused. The other thing a good law professor could do is walk the American people through the analysis which establishes that even if the President did conduct this conditioning release of the aid money resulting in a short hold that such Presidential conduct is not a violation of U.S. law!
The recent disclosure that the former National Security Advisor John Bolton in his upcoming book will say that President Trump told him that he was maintaining the hold on the aid for Ukraine until Ukraine announced that they would conduct the dual investigations has to change the calculations for the Republications on whether they allow a witness to be called for the impeachment trial. Because prior to this disclosure the only thing the Democrats had in regards to the central allegation that President Trump put a hold on the aid until he got the Ukrainian investigations was "hearsay" evidence, testimony from third parties, not suitably reliable to make one criminally culpable; the notorious Mulvaney's statement at a Press conference dealt only with the investigation into the 2016 election and it could have been made because it was his interpretation of the circumstances around the Ukrainian matter one cannot conclusively conclude from that statement that President Trump himself stated that announcement of an investigation was a condition for lifting the hold. The important point is that the Senate now knows of direct evidence of the central factual allegation against President Trump if they don't try to responsibly allow it to come into evidence they are not conducting a fair impeachment trial; the critical interests for the American people here is that no precedent be set that unfair impeachment trials are okay for the U.S. Senate. So what I am proposing is that the Republicans put an offer on the table for the Democrats, the specifics being the Republicans will support Bolton testifying and the Democrats support two constitutional/criminal law professors of Republican's choosing to testify and Democrats agree all motions for additional witnesses and documents be allowed will be dropped; this evidence will be entered closing arguments will be made and the Senate will vote on the articles of impeachment - whatever the outcome this impeachment consuming grip on the nation will end soon!
The reasons the Democrats should accept this deal because if they get the four witnesses they want the Republicans will get their witness wish list and the trial will turn into a massive and shocking mud slinging contest. The Republicans will call former Vice-President Joe Biden to testify to establish that it was legitimate to call for a corruption investigation into him and his son's activities in Ukraine and Joe Biden will leave with his reputation incurring a giant black mark on it. Any legitimate review of Joe Biden's behavior in this matter would conclude that it was a colossal lapse of judgment him not recusing himself from dealing with Ukraine once his son took the Board position for Burisma and at minimum he unwittingly derailed the corruption investigation of the extremely corrupt Ukrainian Oligarch Zlochevsky. Anyone with good sense would know that the then President of Ukraine Poroshenko and his top lieutenants would have known that Biden's son took that job at Burisma and these were people that thrived in a vey corrupt society where you play the game you don't mess with powerful people's family one can take it as a given that the Poroshenko team let the Chief Prosecutor Shokin know you lay off Zlochevsky because otherwise Biden's kid could lose his job at Burisma and Biden could take it out on us by not fully helping us prosecute the war against Russia. Moreover, on that day when Biden arm twisted Poroshenko into firing Shokin by threatening the loan guarantees Poroshenko that same day put Lutsenko in the job. Does anyone really think Lutsenko was going to bring criminal charges against Zlochevsky even if there was a mountain of evidence against him Poroshenko a big fish that thrived in corrupt lakes wouldn't risk falling out of favor with Biden it was probably a condition for Lutsenko getting the job he commit to not go after the corrupt Zlochevsky and as we learned Lutsenko closed the Burisma investigation with no charges filed. The patently obvious reality is that. Biden obstructed the fight against corruption in Ukraine not remedied it with his involvement.
Republican's will call Congressman Schiff whose bread crumbs tossing of an unfair process could fill a U-Haul truck and it will be shown that in truth him with Congressman Nadler let politics take control of their actions and resulted in them leading the Democratic Party to invest so much political capital into the position that they have the impeachment case and it will be done that when eventually a responsible scrutiny of the evidence was conducted and it wasn't there it was too late for the Democrat Party to back out their credibility amongst the American people and especially their base would have suffered too much of a blow for a back down; so the country has too go through this massive impeachment division so Schiff can be a political big shot a star, what a disgrace! Republicans will call the whistleblower who is clearly unprofessional and who is clearly a person that puts his or her politics above duty. Republicans will call witnesses that will provide evidence that Democrat witnesses like David Holmes and others who believed policy differences with the President licensed them to trash and throw the President under the bus in front of the nation during the House hearings were never Trumpers and opportunists! Republicans should subpoena all the staff and the Democrat members of the House Foreign Affairs Committee and ask then when they learned of the hold on the Ukraine aid, from the testimony of Deputy Asst. Secretary of Defense Laura Cooper we know as early as July 25th 2019 some on this committee knew of the hold issue and we know that Ms. Cooper believed the Impoundment Control Act required by August 6 the hold be lifted so why wasn't the House running to court getting a Judge to overrule the illegal hold to stop this Presidential abuse of power that put him in violation of the U.S. Constitution and his oath of office could it be that the President's behavior only deserved this label when the issue of how do we impeach this President was on the table - for the House members with unclean hands enter the videos of their depositions into evidence at the Senate Impeachment trial!
The reason the Republicans should accept this deal is because the facts are the facts they're stuck with the facts which now are that Bolton is going to spill his guts that President Trump conditioned lifting the hold on Ukraine announcing the investigations. This now gives the Democrats a strong Republican cover-up argument; they can use this to fire up their base and fence sitters so they come out and vote in the November election their Party will say to them make your voice heard that the Republican cover up was wrong! Letting the Bolton evidence in isn't fatal to the President's case as Alan Dershowitz argued during the trial and doing so takes away the cover-up argument from the Democrats. The applicable law is favorable to the Republicans; to the President benefit the law authorizing the $391 million aid conditions the release of this money to the Ukraine government taking sufficient steps to fight corruption. Although the DOD announced the condition was met who is the top authority over this agency, that is right the President. America's history is replete with the President overruling one of his agencies even in recent times. President Obama did it at least twice to my recollection; one, there was a strip mining company operating in West Virginia that had it's clean air permits revoked by President Obama and there was an energy company drilling off the coast of Alaska that likewise had its clean air permits revoked! What is the length of the hold here forty-eight days I suspect research on the history of Presidential holds on foreign aid would show this is a short hold, a petty criticism especially in light of the fact that neither the delivery of a missile or even a single bullet to Ukraine was delayed because of the hold! The Democrat case that President Trump violated the Constitution in the Ukrainian aid hold matter falls because the President had a legal basis for doing everything he did in that matter!
Republicans should leverage allowing Bolton for agreement from the Democrats to allow two good constitutional law Professors of the President's choosing to testify because the Republicans haven't really made the knockout blows in the trial they should have and these witnesses could deliver the result. First, Republicans need to stop this smoke screen by the Democrats that the Constitution doesn't require the President to have committed a crime to be impeached. Statements made in the Federalist Papers and at state constitutional conventions are not persuasive are not strong authority they were made after the delegates convention in Philadelphia they were made to get the Constitution ratified in a young nation that was frightened that the federal government would become another onerous British King. What is relevant in trying to determine the delegates intention is that convention's record which are very sketchy. We know from the delegate's convention a motion to make the impeachment standard mal-administration was voted down because they didn't want a legislature that was anti the President to have the power to remove the President on that basis. Largely what America is stuck with is the language of the Constitution which sets forth a narrow standard a serious crime is needed; also I suspect that good statutory interpretation would also reason that if the delegates wanted abuse of power to be the standard they could have readily put it in, it is so obvious an issue which could arise, the delegates could have added a provision like if the President conducts an official act which majorly benefits the President personally and majorly hurts the interests of the American people that is sufficient grounds but they didn't. The Republicans advocates on this heretofore are outstanding lawyers but weak witnesses for heavens sake the Democrats have videotape of them saying just the opposite view they are saying today. Also, a good Constitutional law professor should rip to shreds some of the preposterous arguments the Democrat Congressman Nadler argues like that the phrase high crimes and misdemeanors was known to lawyers in colonial times to mean more than violation of criminal laws; the delegates to the convention were largely farmers, soldiers and shop keepers they weren't learned lawyers to them the phrase meant want the language in the phrase means. Nadler argues that bribery wasn't a statutory crime at the time so the Constitution doesn't limit the grounds for impeachment to just crimes, I bet if you could ask every single one of the delegates at the convention if they thought bribery was a crime they would say yes they do!
The other thing that a good Constitution law professor could explain and I think this is the most alarming thing about this whole impeachment ordeal and the massive misbehavior from Democrat Americans and their allies rivals the scandal prior to 2009 with the fraud of massive numbers of people in the financial industry giving people home loans they could not afford to pay when the interest rate reset and people packing these loans into bonds and selling the bonds is the presuming of motive in a criminal context.
During the trial a question from Collins, Murkowski and Romney directly addressed the issue but the trial should make a big deal out of it which is when there is several motives for doing something is it okay to ignore the legitimate motives in a criminal context. This is relevant because it would have been a legitimate motive to request the Ukraine government to investigate the Ukrainian Information technology company that discovered that Russian agents were the hackers of the DNC emails to determine if Ukrainian actors had a hand in the hacking not just the Russian government so as to correct the record where the American government's position is that it was the Russian government alone and it would not have been a good motive to take this action if it was just for the help in the 2020 election. This permissiveness of subjective motive selection in a criminal context is alarming and scary beyond words it could put America on a trajectory where it becomes a totalitarian country in which good people are wrongfully imprisoned and abused. The other thing a good law professor could do is walk the American people through the analysis which establishes that even if the President did conduct this conditioning release of the aid money resulting in a short hold that such Presidential conduct is not a violation of U.S. law!
