Why Bolton won’t matter
Over the course of three days, the House managers made an excellent presentation of the case against Trump last week. They were thorough, well prepared, well organized, and passionate. Adam Schiff in particular was sensational. Hakeem Jeffries and Jason Crow were not far behind. The case, as developed in the House or Representatives, is devastating for Trump and the proverbial “slam dunk” that lawyers dream about. That the House was able to put together an iron-clad case in a short time period, and in the face of total obstruction by the administration, is remarkable.
The Democrats, however, made too many strategic mistakes in their impeachment hearings, such as inexplicably starting the process too late, narrowly focusing on the Ukraine matter, not using the Mueller report, not not charging the specific constitutional crimes of bribery and treason, all for the sake of making it quick and simple, and not fighting to subpoena key witnesses. Then, delaying the submission of the articles of impeachment was a predictably futile attempt to have Mitch McConnell agree to call witnesses and admit documentary evidence. This decision gave the Republicans an opening to argue that the Democrats are talking out of the two sides of their mouths. The Democrats claimed that impeachment couldn’t wait because Trump would cheat again in the 2020 election unless quickly removed from office. But then Nancy Pelosi decided to play hard ball with McConnell to negotiate about the impeachment rules of the Senate. This move negated the rationale for a quick and simple trial, narrowly focusing on Ukrainegate, not using the Mueller report, and not charging crimes specifically listed in the Constitution.
The Republicans scored a point by harping on this contradiction, and at the end, the Democrats didn’t get any concessions from McConnell. The Republicans scored another point because the Democrats had been claiming they had an airtight case with the witnesses and evidence they were able to marshal, and yet they are now claiming that more witnesses and documents are indispensable.
Still, the Pelosi strategy of delaying the submission of the articles may have been accidentally brilliant because it allowed for more time for recent developments to reveal additional evidence.
First, Rudy Giuliani’s sidekick, Lev Parnas, released a tape where Trump is clearly heard telling Parnas and other unidentified persons to get rid of the U.S. ambassador to Ukraine at that time, Marie Yovanovitch. This shows that Trump was directly involved in what Bolton, the former Trump national security adviser, called a “drug deal.”
It is also an astonishing revelation of how things work in planet Trump. A nobody like Parnas is able to tape record the president of the U.S. and goes undetected or is ignored by the Secret Service. Then this nobody badmouths a career ambassador with a sterling record because she happens to be an obstacle to the execution of the “drug deal.” Trump, without further ado or any consultation with any agency to obtain the facts, decides on the spot to fire the ambassador and goes on a spree of denigrating her. Imagine how leaders of some other countries must be salivating about how easy it is to get rid of an American ambassador.
Then, a draft of an upcoming book by Bolton comes to light. The New York Times reports that Bolton privately told Attorney General William Barr last year that he was concerned that Trump was granting personal favors to the autocratic leaders of Turkey and China, according to the unpublished manuscript. Barr reportedly pointed to a pair of Justice Department investigations of companies in those countries “and said he was worried that Mr. Trump had created the appearance that he had undue influence over what would typically be independent inquiries.” Barr gives as examples conversations Trump had with Presidents Erdogan of Turkey and Xi of China.(1)
These are only previews of what are likely to be additional revelations as the impeachment trial continues in the Senate and after it concludes. How will vulnerable Senators in purple states look to the voters come November if they vote down the Democrat’s motion to have witnesses and introduce documentary evidence and then there is additional, first-hand information that would have confirmed the case against Trump? Right now, the Republicans are already in a pickle because they argue that the Democrats have presented no witnesses with direct knowledge of the facts or any persuasive documents, but have thus far refused to call the witnesses with direct knowledge or accept the documents that Trump has sequestered.
Consequently, there is speculation that after the Democrats’ motion to introduce those witnesses and documents is renewed, enough Republicans will cross over and vote for the motion. What happens next is hard to predict. Republican senators are gambling that nothing more damning will come out. Because of the Democrats’ previous mistakes and the following reasons, however, I believe that ultimately it won’t make any difference.
First, however tempting Bolton may seem, remember he refused to testify before the House and said he would fight a subpoena, but for unknown reasons he is willing to testify before the Senate if subpoenaed. Could it be a trap? Who is to say that Bolton will not sell out to Trump? Who is to say that Bolton may incriminate Trump to some extent but generally exculpate him, and sow more confusion? Bolton could have gone on national TV and said his piece. He could have volunteered to testify in the House inquiry. Why didn’t he? We suppose he wants to sell his book, but also he probably wants to stay in the good graces of the Republican party to continue playing a political role, somehow, in the future. And what if Trump manages to keep the book and Bolton under wraps?
Secondly, Trump’s attorneys have been terrible in their legal advocacy, but masterful in perverse ways. In the segments that I have seen, they have lied, distorted the facts, and made specious arguments or misleading statements to such an extent that it should require referrals to their respective bar associations for an investigation of professional misconduct. Astonishingly, for example, Jane Raskin said during her argument that “Giuliani was just a minor player.” And “he wasn’t trying to dig up dirt.” Pam Bondi dedicated most of her time to irrelevancies concerning Burisma and the Bidens, with insinuations of corruption designed to throw upon them the dirt that Trump was seeking in Ukraine and to distract from the issue at hand on the basis of falsehoods that have been thoroughly debunked. In addition, the defense’s arguments have been “constitutional nonsense” according to many legal scholars.(2) However, with their lying, distortions, and misdirection, they have provided a fig leaf to Republican senators to either vote against witnesses and documents or to find Trump not guilty even if they receive them.
They have done it in subtle and not so subtle ways: they have pointed out contradictions by some Democrats in their past and present positions in order to discredit them. Robert Ray, for example, threw on the face of Jerry Nadler a statement Nadler made during the Clinton impeachment: that the evidence to convict in an impeachment case “must be compelling, overwhelming and bipartisan.” This is what is called the “burden of proof.” In this case, it would be an impossible burden to carry because there is no bipartisanship whatsoever. And the “compelling” and “overwhelming” parts are nearly impossible to meet even if there were bipartisanship. This is very important because the burden of proof can determine the outcome of a case.
In criminal trials, the burden of proof is “beyond a reasonable doubt.” This doesn’t mean there cannot be any doubt that the defendant is guilty. There can be some doubt, so long as it’s reasonable. Of course, “reasonable” is a weasel word, but still that standard is much lower than “compelling, overwhelming, and bipartisan.” Beyond a reasonable doubt is not proof beyond all possible doubt or to a mathematical certainty. It is a fair doubt grounded on reason, logic, common sense, or experience.
In civil trials, the burden of proof is either “a preponderance of the evidence” or “clear and convincing evidence.” The latter is lower than beyond a reasonable doubt, but lower still is preponderance of the evidence. Preponderant evidence means of greater weight or more convincing than the evidence in opposition: evidence that, as a whole, shows that the fact to be proven is more probable than not.
Dershowitz asserted in passing, without argument or citation to authority, that the proper standard to convict in an impeachment case is “beyond a reasonable doubt.” This is far from established and the Constitution says nothing about it. We lawyers call this type of statement an ipse dixit, Latin for “because I say so.” In fact, the Senate until now has declined to establish a standard, leaving it up to the conscience of each Senator.(3) Therefore, Senators have picked both civil and criminal standards, and weighed the probable outcome as they see fit. As observed by former Senate Legal Counsel Michael Davidson, “it is the sum of Senators’ separate judgments that amounts to either conviction or acquittal: ‘any member is entitled to establish the highest, the medium, [or] a lower standard to govern his or her analysis of the evidence.’”(4)
But I sense Republicans feel that if they say something enough times their base will believe it, since truth and positive law are dead in their minds.
Dershowitz was both the best and the worst of what I have seen. At his best pettifogging, he cited Maxine Waters for the proposition that “impeachable offenses are whatever Congress decides they are.” It was actually Republican Gerald Ford who originally formulated this idea in remarks before the House in an effort to impeach Supreme Court Justice William Douglas in 1970: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.”(5) Ford’s statement is correct, but the way that Dershowitz abbreviated it makes it sound arbitrary, and attributing it to Waters served to ridicule her and, by extension, all the Democratic House managers.
Dershowitz made a dense and convoluted argument that neither abuse of power nor obstruction of Congress can be an impeachable offense, contradicting his previous position during the Clinton impeachment and justifying his flip-flop by stating that he had done more research.(6) He added with a straight face that, even if the statements reportedly made in Bolton’s manuscript are true, and everything else the Democrats allege is also true, there is simply no impeachable offense. He’s probably the only academic in the world to hold that view, but he argued with such flair and trappings of scholarship that he gave something to the Republican senators to hang their hats on.
He also invoked the “Rule of Lenity” a judicial doctrine requiring that ambiguities in a criminal statute relating to prohibitions and penalties be resolved in favor of the defendant if it is not contrary to legislative intent. Thus, even if Trump were found guilty as charged, he argued, it would be proper for the Senate not to impose the penalty of removal from office. It was that argument that won Dershowitz a deviously brilliant win.
At his worst, Dershowitz argued that impeachable crimes must be akin to bribery and treason. Well, Trump’s crimes were. Trump attempted to bribe President Zelensky of Ukraine by holding back military aid and denying him a visit to the White House unless Zelensky announced an investigation of the Bidens. And he committed a crime akin to treason by giving aid and comfort to an adversary, Russia, and putting his personal interests above the security interests of the U.S. He therefore gave an opening to the Democrats to emphasize these points at closing arguments.
Meanwhile, Democratic Senator Chris Van Hollen made a proposal at the beginning of the trial that didn’t gain much traction, but he promises to renew it: to let the chief justice decide which witnesses to bring in and which documents are relevant. This would put Justice John Roberts in an uncomfortable position. I bet he wants to emulate Justice William Rehnquist during Clinton’s impeachment. “I did very little but I did it well,” Rehnquist famously said.
If perchance Justice Roberts starts acting like a judge, the proceedings will enter unknown territory. Unfortunately, there is plenty of bogus “reasonable doubt” and obfuscation to give Republicans senators a rationale to acquit the president. They will surely prefer to go home by Friday than continue sitting still for hours on end for several more weeks, without their cellphones or even food and drink besides milk and water. And even if they decide to call more witnesses and receive documents proving the Democrats’ case conclusively, everyone agrees that the ultimate result has been preordained amid the cult of Trump and the political calculations of Republican senators.
Amaury Cruz is a writer, lawyer, and political activist from Miami Beach. He has a B.A. in Political Science and a Juris Doctor degree.
1 https://www.nytimes.com/2020/01/27/us/politics/john-bolton-trump-book-barr.html?campaign_id=60&instance_id=0&segment_id=20711&user_id=7c50b4eea9b2452a24a313076724af68®i_id=93714915
2 https://www.nytimes.com/2020/01/20/us/politics/trump-impeachment-legal-defense.html
3 http://congressionalresearch.com/98-990/document.php?study=STANDARD+OF+PROOF+IN+SENATE+IMPEACHMENT+PROCEEDINGS
4 Id.
5 https://www.bartleby.com/73/889.html
6 https://www.mediaite.com/tv/alan-dershowitz-lashes-out-at-cnn-bullies-flails-to-explain-his-contradictory-impeachment-claims-im-much-more-correct-now/
