Californians to Play an Over-Size Role in the Impeachment Trial

Richard Rubin
Attorney Richard Rubin has taught at the University of San Francisco, Berkeley and Golden Gate University, is a regular columnist for the Marin Independent Journal and was Chair of the California Commonwealth Club Board of Governors, 2017-2019.

A few Californians will be the marquee players as the impeachment trial of the 45th president (or technically the 44th if you count Grover Cleveland as having served split terms) of the United States, Donald John Trump proceeds. 

Under these circumstances the House has a long arm which in accordance with its constitutional duties extends into the U.S. Senate as the trial gets underway.

The lower house did not relinquish all control when the Articles of Impeachment for only the third time in our history were delivered to the Senate in a solemn ritual that bespoke the gravity of the occasion. 

Speaker Nancy Pelosi —third in line to the presidency—who continues to play a pivotal role chose to withhold them for nearly a month on the presumption which proved correct that further damaging evidence would come out.

Some will assert that this delay was mainly an exercise in one-ups-woman-ship which was bound to rankle the president and the Senate Majority Leader, Mitch McConnell. It did both.

Pelosi also gets to select the seven prosecution “managers “ who will argue the case against the president. To no one’s surprise she chose Rep. Adam Schiff, the House Intelligence Committee chair from Los Angeles to lead the team.

Schiff’s adroit handling of the House investigation phase won high marks which gained Pelosi’s complete trust and landed him what may turn out to be the most important assignment of his rising political career. 

The woman she picked to fill the anchor slot, Rep. Zoe Lofgren of San Jose, may be the most qualified of the key players as the only member of Congress to participate in all three impeachment proceedings involving Richard Nixon, Bill Clinton and now Trump. 

Lofgren is a low-keyed constitutional expert with understated legal skills and was one of the last House Democrats urging the Speaker to initiate the impeachment inquiry. It was only after startling revelations about the Ukraine affair that persuaded Lofgren decisive action was needed.

“This is not something I sought or relish,” said Lofgren. She added, “Impeachment is a grave and solemn matter. It is a stress test for our democracy.”

For their part the Trump team would prefer the trial be ended or at least dramatically curtailed if and before he is asked to deliver the 2020 State of the Union address to Congress on February 4th.

 By tradition, the Speaker of the House must issue a written invitation. It is difficult to imagine the atmosphere and the level of drama in the chamber that will accompany this speech by a president facing conviction for violating his constitutional oath. 

Even if the ruling of the Senate is ultimately in his favor—which a majority of expert observers are predicting—as Pelosi has restated a number of times, “His impeachment is forever.”

It would take 67 Senators to find him guilty of the crimes to which he has been accused—a 2/3rds majority considered unattainable at this point.

Trump’s defense team will also feature a notable Californian—Ken Starr who came into national prominence during the Clinton impeachment. 

He is best known for heading an investigation of members of the Clinton administration, known as the Whitewater controversy and is a former Dean of the School of Law at Pepperdine University.

At the conclusion of the Clinton impeachment which resulted in his acquittal on all charges, Trump labelled Starr “a lunatic” and “a disaster.”

Apparently Starr’s appointment as one of the president’s chief outside defense counsels suggests that retaining a fair-minded advocate will help to score points among GOP Senators who have the potential of wavering. 

The other high-profile defense attorney is the famed former Harvard Law professor, Alan Dershowitz, known for his support of the idea of the powerful Chief Executive.

Two other influential Californians who will sit as jurors are the state’s senior Senator Dianne Feinstein who is the ranking member of the body’s Judiciary Committee and noted throughout her long tenure as a moderate willing to do business with those on the other side of the aisle.

Also visible will be the state’s junior Senator, Kamala Harris, who dropped out of the presidential race and is a fiery liberal with vaunted prosecutorial skills. Only Feinstein has prior impeachment experience and voted for Clinton’s acquittal in 1999. 

The holding of an impeachment trial during an election year is unprecedented. The critical Iowa Caucus is fast approaching. Unlike her colleagues Harris is relieved of needing to decide between last minute campaigning or performing her duties as a jurist. 

The final battle lines are being drawn involving the all-important rules and whether witnesses that have been prevented from testifying must be called who could offer new evidence that the 100 jurors and the voters might be interesting in hearing.

Whether or not such testimony would be credible, in the annals of jurisprudence there is no such thing as a jury trial without witnesses.

McConnell who does not favor additional witnesses is leaving that up to his fellow Senators who are under intense pressure to tow the party line.

If four GOP Senators were to defect he would be over-ruled or in the event of a 50-50 tie Chief Justice John Roberts who is presiding could be asked to cast the deciding vote!

Nixon resigned before he could be brought to trial and the rules governing the Clinton trial were settled quite amicably by the party leaders at the time. 

Such bipartisan harmony is presently nonexistent with both sides sharpening their knives for what could be a highly personal no-holds brawl.

This would be new territory where defendant and plaintiff—the U.S. Congress have never ventured. 

The Chief Justice has played a very limited role in the two most recent impeachment trials and is likely to defer to the Senate which has nearly absolute power to make its own rules. 

This leads to an uncorrectable legal anomaly: Unlike any other trials, in cases of presidential impeachment the jurors who are sworn to rendering an “impartial” verdict are also the judges and wear highly partisan political hats.

Whether the weight of evidence points to an extreme abuse of power and the obstruction of Congress or fails to meet the standard for conviction requiring removal from office, declaration of a “mistrial” is not possible.

Whichever the outcome the final arbiters must be the voters in the November general election.

Comment on this article


Please note, statements and opinions expressed on the Fox&Hounds Blog are solely those of their respective authors and may not represent the views of Fox&Hounds Daily or its employees thereof. Fox&Hounds Daily is not responsible for the accuracy of any of the information supplied by the site's bloggers.