I’m been a judge for more than twenty years and was a trial lawyer for almost fifteen years before I became a judge. After thinking about what was publicly billed as the impeachment trial of Donald John Trump for abuse of power and obstruction of Congress I concluded an essay published on my personal blog two weeks ago with the following words.
If Senators vote to sustain a ruling by the Chief Justice to allow witness testimony and documentary evidence during Trump’s trial, our nation and the wider world will know that Trump’s trial will involve evidence and the rule of law. But if McConnell’s plan for Trump’s trial is followed, the trial will be the latest and most damning spectacle of Trump’s sociopathic corruption and incompetence on the United States and the world.
Beginning today, the nation and world will learn whether Trump’s sociopathic and cancerous corruption and incompetence has metastasized to the Chief Justice of the United States and a majority of the U.S. Senate. If it has, none of us should be fooled. Metastatic cancer is incurable and fatal.
Now we know that “Trump’s sociopathic and cancerous corruption and incompetence has metastasized to the Chief Justice of the United States and a majority of the United States Senate.”
We watched Chief Justice John Roberts, the highest-ranking judge in the United States, abdicate his constitutional duty as presiding judge and behave as if he was a puppet manipulated by Senate Majority Leader Mitch McConnell. Roberts allowed Mitch McConnell, the foreperson of the Senate jury, to dictate whether subpoenas could be issued to the White House, Office of Management and Budget, State Department, Energy Department, and Defense Department to compel production of witness testimony and records pertaining to the impeachment charges. Any other judge would have decided that question in minutes and ordered the subpoenas to be issued. Any other judge wouldn’t have allowed a juror (Mitch McConnell) to dictate whether claims of witness immunity and privilege are decided by jurors.
Chief Justice Roberts barely spoke as House impeachment managers and Trump’s defense lawyers spent days wrangling about whether the impeachment charges were properly brought by the House of Representatives. No other judge in the nation would have watched and listened for a week while lawyers debated that plain question of constitutional law, let alone allowed jurors to decide it.
According to what former National Security Advisor John Bolton has written in a book scheduled for release in the coming weeks, White House Counsel Pat Cipollone was present during an Oval Office meeting (along with Bolton) when Trump declared his intention to hold up security aid approved by Congress for Ukraine until the President of Ukraine publicly announced that Joe Biden would be investigated for corruption. Yet Chief Justice Roberts allowed Cipollone, a potential material witness to alleged misconduct, to serve as advocate for Trump (the accused) although a lawyer is ethically prohibited from serving as advocate and witness in the same case (Rule 3.7 of the Model Rules of Professional Conduct).
Roberts allowed Senators (remember that they are supposed to be jurors) leave the Senate chamber at will for extended periods. Roberts said nothing to admonish Senators who flocked to news cameras to talk about the impeachment charges and arguments made by the lawyers about their oath to maintain impartiality.
Roberts allowed McConnell (who publicly declared that he was in direct contact with Trump’s White House Counsel concerning conduct of the impeachment trial) to direct the proceedings even though the U.S. Constitution plainly states that the Chief Justice shall preside during trials involving impeachment of the President of the United States. Roberts allowed McConnell to arrange for Senators to vote on whether to see and hear witnesses questioned under oath about what they knew concerning Trump’s conduct and the impeachment charges.
Roberts has been functionally incompetent during Trump’s impeachment process. McConnell has been functionally mischievous in leading Republican Senators to vote against doing what jurors are supposed to do – assess the credibility of witness testimony and the probative value of documentary evidence.
The news media have been equally disappointing. Media pundits are now saying Trump will be “acquitted” if 67 Senators (two-thirds of the Senate) don’t find him guilty of abuse of power and/or obstruction of Congress. If 8 of 12 jurors (two-thirds) are required to return a verdict but only 7 jurors agree on guilty or not guilty, the result is a mistrial not acquittal.
Sadly, it appears that Donald Trump’s sociopathic corruption and incompetence have metastasized to the three branches of the federal government and spread outside Fox News. Senators have embraced cowardice rather than courage. They seem more interested in placating Trump’s political base than in discharging their sworn duty to protect and defend the Constitution by rendering impartial justice.
What I wrote at the outset of the Senate impeachment process is true. None of us should be fooled. Metastatic cancer is incurable and fatal. Thanks to John Roberts, Mitch McConnell, and Republican Senators, we appear to be watching the death spiral for democracy in the United States unless a miracle happens.
The U.S. is led by moral and ethical zombies. Welcome to the real-life drama of The Walking Dead.