Raskin’s Gambit

Until today, the conventional wisdom was that Senate Republicans would hide behind their claim that it was not constitutional to try Donald Trump on the single count of impeachment for inciting an insurrection, and Democrats would lose badly in an effort to convict Donald Trump. That’s still likely.

But Donald Trump’s inability to follow good legal advice and Jamie Raskin’s exploitation of that weakness may change that.

In response to the opening brief Trump’s lawyers submitted earlier this week, in which Trump went beyond a claim that the entire trial was unconstitutional and feigned responses to the actual facts alleged, Lead Impeachment Manager Raskin invited Trump to testify.

Two days ago, you filed an Answer in which you denied many factual allegations set forth in the article of impeachment. You have thus attempted to put critical facts at issue notwithstanding the clear and overwhelming evidence of your constitutional offense. In light of your disputing those factual allegations, I write to invite you to provide testimony under oath, either before or during the Senate impeachment trial, concerning your conduct on January 6, 2021. We would propose that you provide your testimony (of course including cross-examination) as early as Monday, February 8, 2021, and not later than Thursday, February 11, 2021. We would be pleased to arrange such testimony at a mutually convenient time and place.

Presidents Gerald Ford and Bill Clinton both provided testimony while in office–and the Supreme Court held just last year that you were not immune from legal process while serving as President–so there is no doubt you can testify in these proceedings.


If you decline this invitation, we reserve any and all rights, including the right to establish at trial that your refusal to testify supports a strong adverse inference regarding your actions (and inaction) on January 6, 2021.

It’s not clear which specific claims Raskin has in mind. The letter specifically asks about January 6 and not Trump’s claims he fashions as “Answer 4,” that he didn’t lie about winning the election — though Trump reiterates that claim in Answer 6, claiming that he denies that his January 6 expression of “his opinion that the election results were suspect … is factually in error.” Still, he presents that as an opinion, not a knowingly false claim. Then there’s a claim about his January 2 call to Brad Raffensperger, so unrelated to the January 6 questions mentioned in Raskin’s letter, but which would nevertheless make great fodder for questioning under oath.

The more factual claims about January 6 that Trump made include:

  • It is denied that President Trump intended to interfere with the counting of the Electoral votes. [Answer 6]
  •  It is denied he threatened the integrity of the democratic system, interfered with the peaceful transfer of power, and imperiled a coequal branch [sic] Government. [Answer 8]
  • To the extent there are factual allegations made against the 45th President of the United States contained in Article I that are not specifically addressed above, the allegations are denied and strict proof at time of hearing is demanded. [Answer 8]

To some degree, for Raskin’s gambit to work, which false claims in specific he has in mind don’t matter.

But given that Trump’s response entirely blew off the allegations about Mike Pence in the article of impeachment, which include factual observations about Trump riling up the mob against Pence in particular, Trump has effectively, with the language in the last bullet above, denied an attack on Pence which goes well beyond any First Amendment speech.

As I said, though, it doesn’t matter, because the gambit (even ignoring that Trump is constitutionally incapable of telling the truth, under oath or not) is about forcing Trump to adopt an impossible position. The safest response to this letter would be to refuse, and let the House assume Trump’s entire claim to offering any factual response is false (as it is). But because Trump is Trump, he’s likely to choose between two more dangerous options:

  • Invoke the Fifth, thereby admitting that his First Amendment speech might expose him criminally
  • Testify, thereby undoubtedly setting up sworn lies

The former will get him in trouble for any civil suits arising out of the January 6 insurrection, the very thing that (per reports) Trump was trying to avoid with his decision not to self-pardon.

The latter will set Trump up for (at best) a perjury prosecution and at worst more substantial criminal prosecution based on his responses. Plus, it might pave the way for Mike Pence testimony, which would be compelling.

And by inviting Trump this way, without a subpoena, Raskin avoids all the drama Lindsey Graham has been trying to set up about contentious votes on witnesses. It is Trump’s choice, with no coercion.

Trump got through the Mueller investigation and Impeachment 1.0 by successfully avoiding something like this. It may finally be that the third time’s a charm.

Update: Trump has responded, claiming without legal citation that there is no negative inference in this proceeding.

141 replies
  1. scribe says:

    Nice piece on a fast-breaking story, EW.

    One point to add: There is no such thing as a false opinion, only opinions which are, or are not, generally accepted.

    This, because all opinions are the end product of inserting some set of facts (as selected by the person rendering the opinion) into a reasoning paradigm (devised by the person rendering the opinion to weight facts according to his preference) and then presenting the final product of that paradigm black box. One can opine all day the moon is made of green cheese and never be stating a falsehood. Your opinion just won’t be accepted.

    • scribe says:

      More comments – a quick thumbnail of issues:

      – “If a president does it, it isn’t a crime”* => does he have the guts to run with that, or will he take the 5th?

      – Will the prosecution be setting him up for a criminal prosecution? Sure.

      – Can his taking the 5th result in an adverse inference against him? In a civil case, it can. No one’s ever tried it in an impeachment, AFAIK. (Past impeachments have usually followed a criminal conviction, so the 5th was not an issue.)

      – Can his refusing to testify result in an adverse inference against him? In a civil case, definitely yes. Probably so, too, here.

      – Can the testimony, presumably under oath, be used in other proceedings? Ask Bill Cosby about that. Short answer: yes.

      – Will this be must-see TV? Maybe.

      * NB If things work out right, we may wind up getting rid of that artifact of Peter Rodino’s failure to finish the work on Nixon.

    • VilnasHoon says:

      I disagree with your green cheese moon example of what an opinion is. I believe opinions are properly speaking an interpretation of the meaning or significance of a set of facts. Stating that the moon is made of green cheese is not an opinion. It is an incorrect factual statement about a matter that has been empirically verified beyond all doubt.

      You describe opinions as being the result of running a set of facts through a reasoning paradigm, so I expect we generally agree about the nature of opinions. It may be simply that you chose an inapposite example, but I believe that taking the position that the statement “the moon is made of green cheese” as being merely an individual’s sincerely held opinion and thus not subject to falsification is a good example of one of the ills we are facing in our political discourse. It is not an opinion that Donald Trump’s inaugural crowd was larger than Obama’s. It is just a wrong statement of fact (and “alternate facts” are not a real thing – that’s not how facts work). It is not an opinion that the election was stolen from Donald Trump by means of a vast conspiracy of voter fraud. That is a mistaken belief in an incorrect statement of facts controverted beyond all reasonable doubt by lack of evidence and scores of failed legal challenges.

      By contrast, I do believe it would be an opinion that Josh Hawley acted appropriately in challenging the Pennsylvania electoral votes. I believe such an opinion to be dangerously misguided and either held on the basis of obstinate bad faith or else grounded in a sincere belief in a false set of facts about the election (lies spread in bad faith by nihilistic media and politicians). But it would nevertheless be an interpretation of the meaning of a set of facts, and thus an opinion.

      After all that, I’m not sure why I felt the point was so important that it needed three lengthy paragraphs of rebuttal.

        • DaveC says:

          Agreed John Paul Jones. Thx for the post VilnasHoon. I can’t articulate it well, but there must be extensive academic writing in philosophy about the difference between facts and opinions. At some level, they are both human concepts. There plenty of historic “facts” that are no longer accepted as facts. Newton Ian physics, Caucasian racial superiority, the existence of magically endowed witches – too many and too diverse to list. Much as we tend to insist facts are based on external, physical reality, facts are still a concept of fallible human understanding.

      • PeterS says:

        Yes. And to take another (sadly) topical example, saying “the covid 19 vaccine is more dangerous than covid 19” is not an opinion.

        • DaveC says:

          My sophistry above notwithstanding, I agree with Peter’s assertion. Maybe my main point is that asserting a statement is a fact does not establish the physical reality of the assertion. Even if there were an asserted “fact” every human accepted.

      • skua says:

        Answer 5 contains ” … and expressed his opinion that the election results were suspect”.
        If we accept that Trump was in fact genuinely expressing an opinion, and not presenting misinformation as fact, then Trump’s expressed opinion really was factually Trump’s opinion.

        • PeterS says:

          If Trump was expressing an opinion then the opinion being expressed by Trump was his opinion. I think we’re back to cheesy moons.

      • Dave_MB says:

        I believe the moon is made of green cheese.
        I think the moon is made of green cheese.
        As far as I know, the moon is made of green cheese.

        Statement of Fact
        The moon is made of green cheese.

        A statement of fact based on honestly held opinions is not true just because the speaker believes it to be true.

        A statement of fact is objectively true, regardless of the opinions of the speaker.

        • PeterS says:

          That sounds uncontroversial, though you might be thought to be saying that I can have an “opinion” that Australia doesn’t exist.

          I will fight* the advancing post-truth, alternate-fact world where arrant nonsense is passed off as acceptable opinion! (I’m not referring to you, Dave).

          *no actual fighting will be involved.

      • madwand says:

        Yeah three lengthy paragraphs can be boiled down to one sentence, opinions are like rear ends, everyone has one.

        • Hika says:

          “three lengthy paragraphs can be boiled down to one sentence”
          That is your opinion, and I reckon it’s wrong. However, if we follow your suggestion, it must be admitted that some rear ends are shapely and worthy of contemplation, while many are just plain ugly and not worth a look.

      • rg says:

        Your 3 paragraphs were well worth the read. But for what it’s worth, I think you are mistaken about one point. First let me say that I agree with scribe’s statement: “There is no such thing as a false opinion”. One could go further and add:” that’s not how opinions work”. Then VilnasHoon offers a reasonable treatment on opinions, including the astute observation that ” ‘alternate facts are not a real thing- that’s not how facts work”. But his logical train of thought goes off the rails when he describes a misguided opinion “grounded in a sincere belief in a false set of facts about the election”.

        To illustrate my thinking, let’s reduce the size of that set to a single false fact. I want to say that: “that’s not how facts work”. There is no such thing as a false fact. I regard a fact as a statement of what has been observed to be a true description of reality, (a not trivial utterance). And if a statement describes a fact, it cannot logically be false; and if it is false, it cannot be a fact. Theories, hypotheses, opinions, and guesses are so much speculation as to what MAY be descriptions of reality.

        The trivial discussion that ensued after the 2017 inauguration about the relative crowd size was a waste of national attention about the relative merits of different opinions. But the opinions about whether the election was stolen is a serious matter, and separating the facts from opinions as well as the source of deliberate misleading opinions is not a trivial civic matter. No wonder some people are ” mad as hell and not going to take it anymore”. What we have on our plate is the questions of whether that anger has been somehow manufactured, and if so, what do we do about it henceforth?

        • skua says:

          In the context of science the following is inaccurate, “Theories, hypotheses, are so much speculation as to what MAY be descriptions of reality“.
          In science theories can often be more assured than common facts.
          And hypotheses are used like pregnancy tests – they get pissed on and the result guides future action.

        • skua says:

          observed to be a true description of reality
          This formulation denies that interpretation of observations is required before any conclusion about the relationsbip between the observations and reality can be made. And that there are multiple reasonable interpretations of all observations.
          What was taken as fact in the past included things as erroneous as eugenics, the unsuitability of women for government and the earthly dooms pressaged by comets. Those “true facts [long] observed to be true descriptions of reality” are no longer facts.

          • rg says:

            I regretted writing that statement as I wrote it. I started it with intention of stopping after the word “observed. It’s like “seeing is believing”. All science rests upon observation by the senses. If you see it or hear it or smell it, it’s life, it’s real. We go on to interpret and speculate from there.

            No, theories are over-rated, not superior to “common” facts. The difference between theories and hypotheses, to my thinking, is that theories have a contextual history of some verification that mere hypotheses lack, (which is why we rush to test’em). But both are speculation as to what may be a useful description of an array of observations.

            • skua says:

              Many is the time that I too have regreted extending what I write. Could happen again now.
              Speculation is not usually used to describe an understanding that has survived ?tens of thousands of attempts to falsify that understanding, as, say molecular theory has.
              And the world as perceived by our senses includes things like gender, racial and brand-name bias, optical illusions and phantom limbs. Unanalyzed observations have at times produce wildly erroneous understandings.

    • Fran of the North says:

      If you are ever in need of some Saturday evening entertainment, tune in to ‘Green Cheese’, a call in trivia show on KAXE dot org starting at 7P Central. The station is public radio in the middle of the north woods, but it’s gained a national calling, perhaps fueled by vacationers.

      It is kitsch at one level, highly competitive at another. Characters abound, and fun is had by all.

    • Min says:

      scribe: “One can opine all day the moon is made of green cheese and never be stating a falsehood.”

      Well, that’s your opinion. ;)

    • stancat says:

      OTOH, the claim that one genuinely holds the opinion that the moon is made of green cheese can be determined to be false. If any sane person older than age 7 claims this as their honest opinion, we can easily infer, especially after cross examination about education, life experience, etc, that the claim to hold this opinion is falsely asserted for a purpose other than genuine expression of belief.

    • vicks says:

      Doesn’t it all shift when it’s a person of immense power pushing an obviously self-serving opinion to the masses?
      It’s not like he didn’t know that cult members didn’t send pipe bombs to members of the media or drink what they thought was hydroxychloroquine

    • P J Evans says:

      The one that’s basically “You can’t throw me out: I quit”, like his body of work is a lot of high-quality on-screen time? (His TV stuff is a lot of time, yes, but quality, not so much.)

      • Mister Sterling says:

        Right. He didn’t have to respond. Instesd, his listing of his credits are like a self-own:

        “While I’m not familiar with your work, I’m very proud of my work on movies such as Home Alone 2, Zoolander and Wall Street: Money Never Sleeps; and television shows including The Fresh Prince of Bel-Air, Saturday Night Live, and of course, one of the most successful shows in television history, The Apprentice – to name just a few!”

        • scribe says:

          He was a working actor which, in an industry with an 85% unemployment rate, is something talk about.

          By way of example, late last night (or early this morning) there was a movie on the Sharknado channel called something like “Lavantula”, about opening up the gates of Hell and having giant lava-breathing tarantulas come out to cause trouble. Starring: Steve Guttenberg.

          If the checks clear, people in that business will do most anything and write it down to “expanding their range” or similar bullshit which really means “I can pay some bills”.

          • P J Evans says:

            Bezos in “Star Trek Beyond” – he did it for fun, I assume, since he can pay bills with pocket change.

            • scribe says:

              Astronaut Mae Jemison as a transporter operator in an episode of Star Trek TNG. (Before she found the way out of the real space program.)
              Melvin Belli as an alien in TOS.

              The list goes on. Fact remains – getting paying work in that business is something to brag on and something to compete over. I once had a neighbor with her own IMDB listing (she did makeup – a lot of it) and her descriptions of how competitive actresses were to get parts (and lines) was both revealing and hilarious.

          • cavenewt says:

            Apprentice aside, my understanding of T****’s movie roles is that he traded for use of Trump Tower and other locations by insisting on a cameo in the movie. Actually I think I learned about Home Alone 2 in the comments on a different emptywheel post.

            • Dave_MB says:

              Yes. Most productions agreed to film his cameo and then promptly tossed it out and did not include his ‘performance’ in the movie.

      • Peterr says:

        So there is at least there is one group that Trump would rather resign from than be held accountable by.

        Good to know.

  2. PhoneInducedPinkEye says:

    He is probably in attention withdrawal from being banned from Twitter, I am hoping that muddles his thinking to the point where he shows up.

  3. bmaz says:

    Heh, this all supposes that Raskin, Pelosi and Schumer have the balls to try to enforce anything. There is no evidence of such gumption. As I said earlier today:

    “Now, if the Dems wanted to do this right, there would be no full Senate trial, a specialized Senate committee would be assigned to request and review all evidence over a longer time period to where PRA material really could be acquired and considered, along with more witnesses etc. The provision for doing so is Rule XI of the Senate impeachment rules. But instead this is going to be yet another show trial farce.”

    • madwand says:

      Yeah I agree, haven’t figured out why they want to get their dick stomped on twice, Republicans won’t bolt in enough force to convict. At one point I thought with McConnell’s statements that they might have enough votes to convict, doesn’t seem likely at this point in light of the vote on the constitutionality of impeaching a president after he leaves office.

      IMO Democrats are making tactical mistakes, one in not doing what you suggest, two in not accepting McCarthy’s offer to put Greene on another committee rather than stripping her of her present roles. Then she would inevitably have visited the same shit she had said before and been more like a Steve King kind of person, much more vulnerable and easier to justifying removing. Republicans will have a long memory and when it gets their turn, they will return the favor. Great for theatre, useless otherwise.

      • bmaz says:

        Sadly, I agree with you about Greene. She is absolutely horrible, but this is a dubious precedent. She is unfit for the Education Committee, but seems something else could have, and should have, been worked out.

        • Ginevra diBenci says:

          Dems stripping MTG of her committees just turns her into a martyr, and sets a precedent for GOP retaliation. Assigning her to Education felt like trolling in light of her school-shooting conspiracy theories, but there are others where she could simply be irrelevant, bored and unseen.

          • timbo says:

            It actually shores up the DP’s precarious position with the folks who helped Biden and those Senators from Georgia just make it to power in Washington DC. The DP isn’t just concerned about whether or not Greene appears to be some sort of bird with an injured wing to nutters on the right. The DP also has to show that it actually is taking action to stop people like Greene from getting into/remaining in power in Washington DC, etc. If you look at it from the angle of shoring up support for DP rule among the left, progressive, and folks of color, all the supporters of the DP Biden election campaign, this is shoring up DP leadership power on that side of the equation. It also shows folks who are independent and turned off by both parties that the DP stands for keeping as nutty as Greene out. It is a message to constituents around the country that this sort of dangerous loonery is something that will not be tolerated any longer as long as the DP is running the show. So, on balance, I’m guessing that they keep or gain more voters than they lose by keeping a badgering gun nut loon, bigotted scammer off the Education committee than they lose.

    • Hika says:

      100% spot on. I didn’t know the rule by which the impeachment article can be sent off to committee for investigation, but I do know that the longer the process rolls in the Senate, with disclosure of lots of details that are highly inconvenient to Republicans, the higher will be the electoral cost to them of allowing Trump to skate away. If it’s all done and dusted essentially along party lines inside two weeks, the impact on Republican voters will be next to nothing.

      • Min says:

        As one who lived through the Watergate hearings, I know that they did change hearts and minds. The Senate hearings, which uncovered evidence, took a long time, and the House Judiciary Committee hearings took about 2½ months. The clincher was the “Smoking Gun” tape, which made it plain that Nixon would be convicted by the Senate, and after that Nixon resigned after a few days.

        We may not have the equivalent of the Smoking Gun tape, but we have much stronger evidence than the Watergate impeachment had otherwise. The Senate vote on tabling Rand Paul’s motion signaled how they might vote on the constitutionality of the trial, but it was a procedural vote which gave them the option of voting to convict. Any hope of changing votes in favor of conviction rests upon getting voters to write their Senators who favor acquittal. But that will take time.

        If the House impeachment managers can bombard the TV screens of those voters for a long enough time with evidence, not only of the violence at the Capitol and some of Trump’s speech, which have already been shown and discounted, but of evidence that has not been seen before —particularly if they can show the mob getting riled up by Trump. Giuliani, and others—, there is an excellent chance of getting more than 56 votes to convict. And that will take at least two weeks, surely.

        Even if the Senate does not convict, more than 60 Senators vote to convict will strike a strong blow against Trumpism, which is vitally important to the republic.

  4. Mister Sterling says:

    Kaffee : Good. Jessup told Kendrick to order the code red, Kendrick did and our clients followed the order. The cover-up isn’t our case – to win Jessup needs to tell the court members that he ordered the code red.

    Lt. Weinberg : And now you think you can get him to just say it?

    Kaffee : I think he wants to say it. I think he’s pissed off that he’s gotta hide from this. I think he wants to say that he made a command decision and that’s the end of it.

    [Starts imitating Jessup]

    Kaffee : He eats breakfast 300 yards away from 4000 Cubans that are trained to kill him. And nobody’s going to tell him how to run his unit least of all the Harvard mouth in his faggoty white uniform. I need to shake him, put him on the defensive and lead him right where he’s dying to go.

    Lt. Weinberg : That’s it? That’s the plan?

    Kaffee : That’s the plan.

    Lt. Weinberg : And how are you going to that?

    Kaffee : I have no idea. I need my bat.

      • Chris.EL says:

        A Few Good Men — Tom Cruise, Jack Nicholson, Demi Moore, Kiefer Sutherland, Aaron Sorkin wrote the story, movie based on his play. Oh, Kevin Bacon too.

        From Wikipedia:
        “A Few Good Men is a 1992 American legal drama film based on Aaron Sorkin’s 1989 play of the same name. Directed by Rob Reiner, who produced the film with David Brown and Andrew Scheinman was written from a screenplay by Sorkin himself and stars an ensemble cast, including Tom Cruise, Jack Nicholson, Demi Moore, Kevin Bacon, Kevin Pollak, J. T. Walsh, Cuba Gooding Jr. and Kiefer Sutherland.” …

        Interesting tidbit — Christopher Guest is actual British nobility — I think he’s married to Jamie Lee Curtis and they’re friends with Rob Reiner…

        Jack Nicholson’s melt down is something to behold.

        “I’m being accused of a crime? … I’m going back to my unit!”

        • cavenewt says:

          The Princess Bride, 1987. Rob Reiner directed, Christopher Guest had a supporting role. One of the three best movies ever made.

      • Tracy Lynn says:

        Thank you all. I actually saw A Few Good, and Princess Bride… So, which is it?

        And, what’s the point?

          • Chris.EL says:

            Before the election — I was seeing Trump’s character in most of the movies with domineering, narcissistic, vain, mean, evil, calculating villain main characters.

            Jack Nicolson’s Colonel Jessup was definitely one of them!

            Demi Moore’s portrayal of Lt. Commander Joanne Galloway was great; Moore was very strong in “Mr. Brooks” as a homicide detective pursuing Kevin Costner’s evasive serial killer, Mr. Brooks.
            Anything to avoid thinking about politics.

            Wonder what tricky maneuver Trump is going to pull next!

  5. CD54 says:

    Lawyer: Your Honor, this was a perjury trap from the start.
    Judge: How?
    Lawyer: Everybody knows Mr. Trump is a pathological liar.

  6. Tinao says:

    Okay this is OT but would someone please answer this for me… is it or is it not a crime to threaten someone’s life? And if so, what jurisdiction do you do it in?

    • Ruthie says:

      IANL, but yes. I had a mentally ill (schizophrenic) relative who went to prison for threatening the life of a national public personality. I don’t know the details of the threats that were made, nor whether charges were in state or federal court. The sentence, IIRC, was a couple of years. My relative had a prior record for robbery from an attempt to feed a drug addiction, so that presumably affected the sentence.

      It makes me angry that people involved in the events of 1/6 might avoid charges. My relative was guilty, and faced the consequences. I have no issue with that in theory. In practice, throwing a mentally ill drug addict in prison with no treatment is both cruel and, in the long run, counterproductive. The person has since died of an overdose.

      • Ginevra diBenci says:

        Ruthie, I am so sorry to hear your story. Your relative sounds much more like a victim of our justice system than a true criminal. As you say, he violated a law. But it does not sound like he would have done that absent his illness, and in this country those with sufficient means (money, connections, sophistication) typically avoid a fate like his.

  7. joel fisher says:

    Fun to talk about, but nothing changed today. Trump ain’t talkin’ without a subpoena. No “adverse inferences” by the Senate will be taken as the jurors have already made up their minds a)that he’s guilty and b) how they are going to vote; it’s hard to imagine any court finding in favor of some future plaintiff based on Trump’s not testifying at his impeachment. Wait until he takes the 5th in a civil action and then you might have something. Two somethings, actually: an adverse inference and a dance of joy by the Democrats as they celebrate Trumps’s embrace of that right held most dear by the criminal crowd. Any of several House and Senate Committees can issue subpoenas for him to testify and should do so sooner rather than later, perhaps even under the phony guise of letting him tell “his side of the story”. This works on criminal morons, so why not Trump? But the fun times begin in earnest when he gets that grand jury subpoena.

    • bmaz says:

      Can’t make an adverse inference without a 5A refusal of an official subpoena. The Dems, of course, will never put him in that posture.

          • bmaz says:

            Same as in any other civil proceeding, an inference drawn from a party opponent’s silence or absence of requested evidence. But making the inference without ever having properly demanded such evidence is garbage.

            • PeterS says:

              I thought these jurors were free to infer whatever they wanted from whatever they want. I must be missing something.

                • blueedredcounty says:

                  Speaking of whether or not something was appropriate, I have never seen any commentary about Chief Justice Roberts accepting the oaths of McConnell or Graham to be fair and impartial jurors during the first impeachment. They were only on public record as having their minds made up in advance. I would expect a judge in a courtroom to mete out serious punishment for this behavior. There should have been consequences for Roberts accepting oaths he knew were lies, and there certainly should have been consequences for the McConnell and Graham. It is bad enough to lie under oath, but what is it called and what are the consequences for lying while making the oath?

                  • bmaz says:

                    No, it is not a regular court. Senators that always have political biases and positions have always sat on impeachment cases. One is about to sit in the chair the Chief Justice would be occupying if Trump was a sitting President. And Leahy will not only preside, but will vote.

            • I Never Lie and am Always Right says:

              In the civil tax arena, the failure of a taxpayer to come forward with evidence in their exclusive possession/control on an issue that is “in play” in the litigation can result in an adverse inference being drawn against that person on factual issues. It is not necessary for the government to have demanded that the taxpayer produce the evidence. The seminal case is Wichita Terminal Elevator Co. v. Comm’r, 6 T.C. 1158, 1165 (T.C. 1946), aff’d, 162 F.2d 513 (10th Cir. 1947)).

              • vvv says:

                That is, as I understand it, the case in most if not all civil proceedings, also. In IL we have a jury instruction, 5.01, which addresses missing witnesses under a party’s control, and can also be adapted for missing evidence under a party’s control. Most states are said to have similar pattern instructions.

            • timbo says:

              What do you suppose the DP reasoning will be for not issuing him a subpoena to appear? That it “isn’t necessary”? Sigh. Yeah, I really do wish they’d do a long impeachment trial following all the evidence they may uncover. Kind of crazy for them not to do that… guess they’re still holding out for some sort of contrition from the proto-fascists that the other party obviously represents… Ugh.

      • joel fisher says:

        In a civil action the parties can be compelled to testify simply by noticing their deposition. You can decline for any or no reason, especially the 5th, but, then, sanctions, including directed verdicts, and othe sanctions etc are on the table.

        • bmaz says:

          Lol, I am familiar. But Scribe and PeterS are not wrong. Impeachment is a different thing. And, even given that, if the Dems never properly subpoena Trump, and they most certainly have not, then I do not understand your point.

    • P J Evans says:

      I think you mean that half the jurors have made up their minds that he’s *not* guilty and will never vote to convict, even if he confessed in front of them.

      • joel fisher says:

        The GOP Senators are not morons; they know what he did, but, as you say, their votes do not have to reflect any reality other than the GOP=2/3 Mad Marge types who won’t cotton to an anti-Trump vote.

        • timbo says:

          They almost certainly do not if no evidence is presented. It’s silly that the DP may head down the same road the GOP did on the first impeachment now that the DP has control of the Senate. They have to do more or unrest will surely increase in the country, not decrease. Lawlessness and the openness of certain folks being above the law AND above Constitutional checks is not a good look for a Republic or a ruling party tasked with righting the ship. But, as many have noticed these past two decades, it appears that the DP cannot chew gum and do much else at the same time, alas.

  8. scribe says:

    Having been shut off Twitter and most, if not all, of the rest of the internet, he won’t be able to resist the chance to get on the stage and flap his lips.

    Dude can’t help himself, regardless of what his lawyers tell him.

      • bmaz says:

        Which does not mean squat if he was never properly subpoenaed. Which, of course, the feckless Dems have not done. This is all so tedious and stupid.

        • mass interest says:

          I don’t know who are more feckless – Trump’s legal team du jour or the Chuck&Nancy clown show. Discouraging.

        • BobCon says:

          It would be very smart for them to pick a few fights over subpoenas of former Trumpies right now and set some examples.

          They no longer have the excuse that DOJ won’t help them with contempt. Just use the power. Don’t fret too much about who to target — Wilbur Ross would be a good one — but exercise it.

          • bmaz says:

            Yes. Absolutely. I just don’t like the thought that they will blithely write Trump off, that is not good precedence for others. Time is no longer of the essence. Do this right.

              • timbo says:

                I wonder what questions they have for him that only he could answer? Maybe after his lawyers make representations but use weasel words there will be more movement for subpoena of direct testimony from the target of the trial?

          • PhoneInducedPinkEye says:

            Chuck Schumer once wrote about these imaginary voters he claims to keep in mind when making political decisions.

            They are (55 now) middle age white professionals who defend the CIA, take off their caps and sing the anthem, and are worried mostly about taxes.

            “That’s what most Democrats don’t get.”


            I don’t think the leadership has done much reflection about how the Bailey’s probably voted for Trump, and it was the hard work of people like Stacey Abrahams that carried the Dems wasted shell across the finish line. And the urgency with which we voted and donated was driven in a large part by the desire for justice.

            I wish they would ditch the imaginary Bailey’s and take a real clear look at the moment we are in. Or pass the torch if they are incapable of leading.

            • bmaz says:

              That was Jeff Goldberg, 14 years ago, and Goldberg has never known squat about regular Dems in the wild.

              • Sonso says:

                It wasn’t Goldberg; it was Schumer. Had a lengthy breakfast with Schumer in the early aughts, and he was never interested in anything other than this mythology of the middle class.

        • pjb says:

          Don’t bite my head off (and I am sure I am missing something elemental) but I am not sure I fully understand why a subpoena matters. There are no actual evidentiary or procedural rules like the FRE, FRCP or FRCrP in effect in a Senate impeachment trial, are there? I have skimmed the Senate rules and they don’t seem to address any of this. Are you saying the prereq of a subpoena to taking an adverse inference is a constitutional issue?

            • pjb says:

              Interesting. What would be the constitutional deprivation? There’s no incarceration nor even civil penalty at stake. The only thing he stands to lose is a job he is no longer in (and potentially disqualification from future federal office. All analogies are imperfect, of course, and impeachment is a peculiar animal, but if we think of this as an employment review board and you are invited to defend yourself against, say, gross incompetence, it seems like your declination to do so is sufficient grounds for dismissal. I get that impeachment is a state action and that’s constitutionally of a different order, but the actual due process deprivation seems more akin to getting shitcanned from a job than anything else. Were you Trump’s lawyer, how would you frame the argument (after you finish vomiting over your forced retention, of course)

              • cavenewt says:

                The only thing he stands to lose is a job he is no longer in (and potentially disqualification from future federal office…

                If convicted, he will also lose his pension, travel allowance, and security. For a cheapskate like him, that might not be nothing.

                • timbo says:

                  Also cannot serve in the Federal government in any capacity either is my understanding. That is, for sure, he could never run for elected office in the Federal government ever again while the Constitutional prohibition remains for those convicted of impeachment charges.

                  Note also that there is no appeal nor no pardon coming for such a prohibition either—the Constitution appears to have no mechanism to reverse this prohibition once guilt is certified by 2/3rds majority in the Senate.

                  • cavenewt says:

                    Also cannot serve in the Federal government in any capacity either is my understanding.

                    I believe that requires a separate vote after the conviction, and this second vote only needs to be a majority, not 2/3.

                  • bmaz says:

                    Just to be clear, not saying that issuing a subpoena would result in his appearance, it would not. But, he would have to either refuse to appear or take the 5th, probably in give or take ten days time. Almost certainly the former, but then there is a direct contempt. Frankly, I would do that, just because, but the pertinent Dems do not seem to have such a fight in them.

                    • PJB says:

                      I hear you, but I’d bet he would neither outright refuse or take 5 but move to quash and try to bog things down in Court. Jamie is my Congressman and I have known him a long time. You may well be right, but my guess is that his gambit not to subpoena is based on strategy about which you may disagree and not on failure of nerve.

                    • bmaz says:

                      Oh, don’t get me wrong, that is the likely result, right? I guess my posit is that so be it, play it out, but not stop the effort.

      • Peterr says:

        Says Trump’s lawyers today. The supreme problem of being Trump’s lawyer is that you not only have to convince him to follow your advice, but you have to keep convincing him to keep following it every day.

        Their nightmare: after a couple of days of “Trump is too scared to come before the Senate and testify” he may change his mind and give them different instructions.

  9. rattlemullet says:

    How is that the House Democrats have such poor quality advice on the Constitutional Impeachment process and conviction? Can someone shed some light on that for me please. I remember bmaz was extremely critical of the last impeachment process. Is it Pelosi since she is the leader?

    • timbo says:

      It’s in the Senate now. Pelosi has no Constitutional say in what happens at this point with regard to conduct of the trial by the Senate. The House managers (aka ‘the prosecutors’) might ask for subpoenas of the President and others one suppose but Pelosi has zero directly to do with that in any legal sense at this point. The power she has now it that 1) she could whip the House to put together more impeachment charges (extremely unlikely at this point) not yet covered by the current impeachment trial charge or 2) not do anything as it is no longer her responsibility in her own eyes (almost a certainty of what she will do).

  10. Stacey says:

    I doubt this matters in the end, the Rs in the Senate have made it clear they don’t give a shit what facts or anything else are–which begs the question why people are so invested in HOW the Dems go about this, since if they spend the next 10 years doing the bestest biggest realest trial EVER, the result would be the same and only the waste would be bigger. But that’s not the point I want to make.

    Apparently, Trump is imposing a strange denial of the reality that he is an EX-President on everyone in his orbit. Rachel Maddow had a segment on the various things Trump is putting out there which subtly deny his EX- status. One of those things is the odd insistence to his de facto Pro-Bono Attorneys :-) that he be called “The 45th President” instead of the “Ex-President” all throughout the brief. He’s essentially trying to stage himself as not the Ex-President in Exile but the President in Exile–keeping the delusion going because he can’t handle the truth!

    BUT, he’s got a sticky wicket set up for his attorneys in that the only argument they can make on his behalf and not loose their own shirts is that “because he’s an ex-president this whole thing is not valid constitutionally.” And then their argument literally can’t ever say in writing that Trump IS no longer in office, because in his mind he IS still the President, and can’t admit the alternative. Rachel thought a good question to force Trump to answer would be “are you still the President?” I’d like to see the glitch in his machinery that that would cause and the smoke that would come out of his ears when he can’t process this on live television.

    Not wanting to argue that this hysterical problem will matter a hill of beans in the end either, just a really funny culdesac that Trump has driven himself and all of his down and will be funny to watch him navigate it :-)

    • klynn says:

      I wonder if his response to that question would set the stage for an “unfit” argument?

      If his response shows/reveals deep concern about his mental health, it would result in not being able to run again – which would be a win for everyone.

      That is why I asked an earlier question about the “to the best of my abilities” language used by Trump’s lawyers. Are we being set up for a narrative that writes this all off as sundowning or another health diagnosis?

        • klynn says:

          Thanks. IANAL.
          So you think there is zero chance Trumps health or state of mind will never get brought into the impeachment process?

          • PeterS says:

            My opinion is no chance, for lots of reasons. Here’s a minor one:

            You told the WHOLE WORLD I’m crazy WHICH IS FAKE NEWS!! and expect to get PAID?!?

            • klynn says:

              Not going to lie – your reply made me spew coffee in a fit of laughter!

              While I see your point (and agree), the potential projection in the quote is priceless!

    • harpie says:

      The EX-Pres’s lawyers’ problem [the EX-Pres] might be [literally] hysterical,
      but the results may NOT be so funny.

      1] https://twitter.com/justinhendrix/status/1357680483648339971
      8:20 AM · Feb 5, 2021

      The #BigLie lives on- 1/3 of American adults, 65% of Republicans, do not believe Joe Biden is the legitimate President, per this AP poll. [screenshot] [link]

      2] https://twitter.com/oneunderscore__/status/1357431458156208133
      3:50 PM · Feb 4, 2021

      A quick story about bloodlust, QAnon and Facebook:
      There’s a picture going Facebook right now that refers to the 10 Days of Darkness.
      Some Q people believe Trump is still in power and has been secretly executing the Deep State for the last 10 days in front of the White House. / The viral QAnon picture shows the new security fencing around the White House, then places a real picture of gallows that kinda-sorta look like the same infrastructure. // I’m not going to zoom in on the gallows, because that’s a real hanging. [PHOTO] [THREAD]

      3] https://twitter.com/MaxKennerly/status/1357483949069635594
      7:19 PM · Feb 4, 2021

      Can’t be stressed enough how Republican identity and in-group signaling revolve around telling patently obvious lies and contradicting themselves.
      We use “cult” and “fascist” to describe this troubling behavior because it is exactly how cults and fascists behave. [screenshots]

      • P J Evans says:

        That second one: I don’t know how they can think those are the same structure, since the second one has *none* of the very large trees that grow around the WH and the Ellipse. They’re analyzing teeny stuff for “clues”, and missing the big stuff entirely.

    • PeterS says:

      Okay, but I don’t know how you force a serial bullshitter (or a good lawyer) to answer a specific question, outside of a forum with legal teeth.

      • timbo says:

        This. This is what the DP is failing to do so far when it comes to these seditionists. It’s not surprising that there is sedition when the legal climate seems to facilitate it rather than rein it in.

    • Ken Muldrew says:

      In the response linked in the last line of the post, Trump’s lawyers call him the “45th President of the United States, now a private citizen”.

      Is there some strange reading of case law from the 1800s that the Trumpalos are using to square the “private citizen” label with the legitimate president of the US fantasy?

      • Stacey says:

        I’m not sure his mob lawyers feel any need to “square” anything with reality. I think they want to get paid at the end of all of this and I think they have some idea how that might or might not happen and I think they are pretty sure all they have to do to pull off this acquittal is keep their pants on during the trial. The harder part is keeping their buck-naked client feeling superbly clothed in very special garments until they get paid.

  11. madwand says:

    The latest on voter suppression from Ga.


    Georgia Senate voting bills being considered after two successful elections which Kemp and Raffresperger were forced to defend, now they are backing the following:

    SB 29: Require photo ID be submitted with absentee ballots
    SB 67: Require photo ID be submitted when applying for absentee ballots
    SB 68: Ban ballot dropboxes
    SB 69: End automatic voter registration
    SB 70: Prohibits new Georgia residents from voting in runoffs
    SB 71: End no-excuse absentee voting
    SB 72: Mandates monthly updates to election officials of voters who have died
    SB 73: Bans nonprofit organizations from mailing absentee ballot applications to voters
    SB 74: Expands poll watcher access

    You think these guys are scared?

    • Ruthie says:

      My state, NH, is considering the 2nd highest number of voter suppression bills now that state government is once again under unified Republican control. Sigh

      • mass interest says:

        Ruthie, I just knew when Ed Butler resigned from the NH House that the state was going downhill faster than Wildcat under Vail Resorts.

      • mass interest says:

        Ruthie, I just knew when Ed Butler resigned from the NH House that the state was going quickly downhill like Wildcat under Vail Resorts ownership.

      • timbo says:

        Condolences. We seem to have mostly a one party state here in California too. At least I agree more with the DP positions than the GOP but still the trend towards single party dominance of states is very worrisome around the country.

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