Impeachment Trial Won’t Be Impartial and Won’t Convict Trump
Legal scholar Marjorie Cohn says 'Vichy Republicans' are making a mockery of the constitutionally mandated impeachment process.
Legal scholar Marjorie Cohn says 'Vichy Republicans' are making a mockery of the constitutionally mandated impeachment process.
MARC STEINER: Welcome to The Real News. I’m Marc Steiner. Great to have you all with us.
Now, this impeachment trial seems unlike all others in our past. All previous presidents who faced impeachment released documents. I mean some were forced by the courts, but they released them. Now, we have Trump refusing to turn over documents and we have McConnell, the president of the Senate, saying these kinds of things. Check this out.
MITCH MCCONNELL: We assume we’re going to see two articles of impeachment, both of them pretty weak stuff, and everything I do during this I’m coordinating with White House council. There will be no difference between the president’s position and our position.
MARC STEINER: He makes no bones about the fact that he will not be impartial. No impeachment by the House has ever moved this quickly. It took 599 days for Nixon’s impeachment to begin after we first learned about Watergate and Clinton took 280 days. Andrew Johnson’s trial in the Senate took 11 weeks. These House hearings move fast, but where is it going? Are the Democrats making the strongest case? Was it wise to do this legally or constitutionally the way it was done? Was this the strongest case possible to make? Will this make the argument that the Emolument Clause was the case to make? I’m not sure. Where will this take us in our struggle to right the ship of America from being seized by this kind of right-wing white nationalists who are in power in the executive branch?
Well, we’re now joined by Marjorie Cohn, professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers, member of the advisory board of Veterans for Peace. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. Marjorie, welcome. Good to have you with us here at the Real News.
MARJORIE COHN: Thanks for having me, Marc.
MARC STEINER: So listen, when you saw the Senate president speak the way he did, I mean there’s not even a pretense here of impartiality. So I mean-
MARJORIE COHN: No, there isn’t. I’ve been a criminal defense attorney for many years and I have never seen a judge and a jury coordinate the trial closely with the defendant, declare that they’re not going to be impartial, and then announce an acquittal before the evidence is ever received. It really makes a mockery of the whole proceeding, and this is the way Mitch McConnell has been playing hardball throughout the Trump administration. We saw how he stole Merrick Garland’s Supreme Court seat, and he has the Republicans in the Senate and in the House walking in lockstep with him and the president. Frank Rich said it best in a recent article. He called them Vichy Republicans, Vichy being the French government during the Nazi occupation that was doing Hitler’s bidding. That’s really what they are, Vichy Republicans. I think we can expect an acquittal.
During the pretrial motions yesterday on the first day of trial, to a person, the Republicans voted against the Democratic House manager’s motions to call for witnesses who were direct eye-witnesses to the abuse of power by Trump and to refuse to allow documents to be subpoenaed from the State Department, the White House, the Office of Management and Budget, and the Pentagon. Now, during the impeachment inquiry in the House, Trump, in an unprecedented move, totally stonewalled the inquiry, refused to allow any witnesses to testify from the executive branch, and refused to turn over even one document even though the Constitution is very clear that the House of Representatives has the sole power of impeachment. It’s certainly not up to the president who is being impeached, who was impeached in the House, and is being tried in the Senate to decide what the procedure will be. And yet, that’s how Trump has behaved.
His defense team during these pretrial motions kept talking about, “Oh, we have to protect executive privilege for future presidents.” Well, actually, Marc, the president has never invoked executive privilege. Executive privilege is a doctrine that protects certain internal executive branch communications from compelled disclosure, but that’s… So on a case by case basis, the president could say, “That witness should not answer that question. We’re asserting executive privilege,” but Trump went way beyond that and said that witnesses who refuse to testify would have absolute immunity from civil and criminal liability, basically promising them immunity that does not exist. This whole doctrine of absolute immunity has never been upheld by a court, and yet Trump used that and continues to use it in the Senate trial as a way to refuse to allow witnesses to testify or documents to be produced.
Now, nevertheless, 17 executive branch witnesses–and these are not Democrats, these are Trump administration people–testified to the committees in the House of Representatives and made a very powerful case for abuse of power and obstruction of Congress, but we will see what happens in the Senate. This is a very quick trial. Mitch McConnell wants to get it over quickly, I’m sure coordinating closely with Trump who wants it over. He wants to be able to announce his acquittal at his State of the Union address on February 4th, and McConnell is making sure that the testimony goes into the wee hours of the night to prevent the American people from seeing the incriminating evidence against Trump.
But American people are smart. They can see through this, and 70% of Americans want witnesses to be called. I think that by having it on television… I remember; during the Watergate hearings, people were riveted to the TV. I think that that is going to cause even more people to turn against Trump. Now, there are certain hardline supporters of Trump, his base, and they’re not going to budge no matter what, but I do think that the manager’s presenting this case, the facts to the American people as well as to the Senate, laying bare what Trump did, is going to be very telling and ultimately may be down to Trump’s detriment.
MARC STEINER: So there are a lot of questions here, though. Some people have argued and I’ve read a number of articles arguing that even taking whether than this can even… He’ll be convicted in the Senate. Obviously, we think he will not be convicted the Senate, but taking that as a given, there are many people who argue that politically and constitutionally this was the weakest case they could have drawn. Why didn’t they move on the Emoluments Clause? Why didn’t they move on to other parts of his behavior as president that might have been easier to kind of push? Is there an argument?
MARJORIE COHN: Well there are a number of… Trump has been engaging in impeachable conduct throughout the three years of his presidency.
MARC STEINER: Right.
MARJORIE COHN: Robert Mueller identified ten different grounds for obstruction of justice and in an overly cautious move, didn’t conclude but basically kicked the ball to Congress for impeachment proceedings. Those things could have come in. Don McGahn, who has been ordered now by a court to testify in the Mueller investigation which has been completed, but he’s a very incriminating witness against Trump and he could be called here to talk about how Trump tried to get him to fire Robert Mueller, the special counsel, and then cover it up. The Emoluments Clause, financial mis-dealings could also have been raised, but I think that Nancy Pelosi held off on impeachment for a long time until the whistleblower complaint revealed what Trump was doing with basically blackmailing, strong-arming the president of Ukraine to announce spurious investigations of Trump’s political rivals in return for getting military assistance that Congress had already appropriated.
And when that happened, Nancy Pelosi I think saw a very clean case, airtight, easy to explain to the American people involving national security. And I think that’s why they went with it. I’m not sure that that was a mistake. Certainly, they could have expanded the inquiry, but I think that they were gun shy after the Mueller investigation because Mueller was so timid in his conclusions because he did not think that a sitting president could be indicted. That’s what the Department of Justice has always maintained. And since Trump was throwing so much shade at the Mueller investigation, I think the Ukraine scandal is much easier for the American people to get their arms around, and I think that’s why they went with this for the impeachment.
MARC STEINER: It’s interesting that an NBC blogger, before we went on the air, apparently, he spoke yesterday on NBC. Senator John Kennedy, who’s a Republican of Louisiana, said that that he thinks there’s colleagues not having any intention at all. The quote was, “If you poll a Senator, nine out of 10 senators will tell you they have not read the transcript of the House hearings and the 10th is lying to you.” So they are hearing the prosecutor’s case for the first time and they are certainly hearing the president’s case for the first time. I mean to me, that’s a pretty stunning statement for a United States Senator to make about his colleagues in his party on the verge of trying a President of the United States in an impeachment trial in the US Senate.
MARJORIE COHN: I agree, Marc. I think it’s an outrage that these elected officials are ignoring the evidence and the facts. The interesting thing about an impeachment trial is that all 100 senators are forced to sit quietly, not say a word for six days a week while the House managers make their case and the president’s defense team makes its case, and then the senators will be allowed to do some questioning, but they can’t have any cell phones. They can daydream, but they have to sit there and listen to the evidence. Probably many of them are hearing it for the first time, but better that they hear it.
Doesn’t mean that they’re going to change their minds. They walk in lockstep with the president. They’re good foot soldiers, but at least… And you wonder how, to a person, there is a total absence of conscience on the part of the Republican Congress members. It’s just astounding, and I have to think that a number of them are watching their own backsides because if they break with the president, they know that he’ll come out and lambast them and scream and yell and tweet and that might harm their chances for reelection. But the lack of integrity among the Republican Congress members is stunning.
MARC STEINER: So I’m curious. In your time as president of National Lawyers Guild, that’s an organization that deals with the state of our country constitutionally, but also is a very political organization. So when you think about the work that the Lawyers Guild and others like the Lawyers Guild have done in the past and you look at this impeachment trial as a constitutional crisis, but also look at it in terms of what it means politically in a struggle in this country in terms of how you define the country, who we are, what we’re going to become, where we’re going, how do you blend those two things in this particular case? Is this worth it in the political sense?
MARJORIE COHN: Well I really think that the House of Representatives had no choice once the Ukraine scandal broke. I just don’t think they had any choice. They had to go with impeachment and for the sake of the Constitution, for the sake of history really. Now, does this take away from attention to problems like healthcare and education and racism, et cetera? Yes, it does and that’s unfortunate, but I think that Trump, who does so much damage to so many people in so many countries on so many levels, needs to be called out. There’s no other way to hold him accountable other than to mount an impeachment proceeding. Certainly, he could be defeated at the ballot box and that’s one of the things that his defense lawyers are arguing, that the impeachment process is trying to undo the results of an election and prevent him from and they should just wait and voters should vote him out if they don’t like what he’s doing.
But if that was the case, why would the founders put impeachment in the Constitution? The word impeachment appears six times in the Constitution, and the founders saw that there was a real danger of overreach by the executive of abuse of power where he would abuse his power for his own personal gain. That’s why they put impeachment into the Constitution as a way to check and balance the executive. So I think that ultimately there was no choice. We had to have this impeachment. Is it an ideal use of our time, knowing that he is going to be ultimately acquitted by the Senate, to watch these proceedings? Could our time be better spent? Possibly, but I think that what this does is to lay bare for all to see what Trump has really done here.
MARC STEINER: Marjorie Cohn, it’s a pleasure to talk with you. I look forward to many more conversations around this. I appreciate your writing and the work you’ve done. Thank you very much for taking your time today with us here at the Real News.
MARJORIE COHN: Thanks so much, Marc. I appreciate it.
MARC STEINER: My pleasure. I’m Marc Steiner here for The Real News Network. Thank you all for joining us. Let us know what you think. Take care.