The Adam Schiff Factor

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.

The Impeachment trial of President Donald John Trump is reaching a conclusion—and it will not be greeted favorably by the vast majority of Californians.

When the history of this time is told years from now one individual might only be a footnote but he will have played a seminal role in this entire sad episode.

That is unless his performance makes him future Senatorial or even Presidential timber.

That would be Rep. Adam Schiff, the Massachusetts-bred Californian who moved to Burbank decades ago and now chairs the powerful House Intelligence Committee whose months-long investigation resulted in the impeachment of the president.

Schiff’s well—honed prosecutorial skills, with the backing of a carefully rehearsed supporting team, have been on vivid display during the past week’s mesmerizing presentation of the actions of this president that brought us to where we are today.

The White House’s entire defense team was no match for Schiff’s biting, concise and well-prepared arguments that time and again cut to the heart of the case against the president.

By most indications he succeeded.

Even the Judiciary Committee Chair, Rep. Gerald Nadler, lacking Schiff’s verbal dexterity often seemed relegated to a cameo role, and his awkward attempt to upstage Schiff when it came time for the closing argument on Saturday did not go unnoticed!

Senators will each be given 10 minutes themselves to address the chamber and the entire nation before the final vote is taken on Wednesday —assuming the current schedule holds up.

Speaker Nancy Pelosi knew months ago who she would want to tap as the lead manager—and Schiff did not disappoint. Republicans followed the Mitch McConnell/Donald Trump script to the letter.

Pelosi put the details of their fine-tuned strategy in Schiff’s hands backed up by a cast which included Rep. Zoe Lofgren of San Jose, a constitutional expert and veteran of two prior impeachments.

It was in the Nixon impeachment which more closely aligns with the charges against Trump that we get to the crux of the case.

In that proceedings which resulted in Nixon’s resignation the then distinguished GOP Minority Leader, Tennessee’s Howard Baker, achieved immortality with his now famous interrogatory:

“What did he know and when did he know it?”

Taking license with that formulation, the question could now be: “What did Trump do and when did he do it?”

The answers to those questions should be critical before a final determination can be made. But they are followed by two other questions at the crux of the dispute:

Did Trump commit crimes as they were understood by the Constitution’s founders and do they rise to the level of impeachment?

Attorney Schiff and his co-prosecutors have said emphatically, “Yes1”

The president’s attorneys have argued with equal passion that the answer is “No!

The ultimate judgement will have to await November when Californians and every voter will have the right to render their verdicts in the highest court of all—the court of public opinion.

Depending upon the result another indicted and impeached president could be returned to office which, given the circumstances in this saga, may nullify the impeachment clause irreparably.

It would mean that we cannot discern any standard by which the founders would have us determine that impeachment is the appropriate penalty and removal the appropriate remedy even if the evidence of wrongdoing is overwhelming.

Assuming it is provable, the right to cast our votes openly freely and without intervention by any foreign power is beyond dispute and the greatest fear of the Constitution’s authors.

If the violation charged were at the behest of the president as Schiff and his managers contend, he could and should have been given the chance to further prove it or have the president’s counselors disprove it..

To do less is saying we are prepared to undermine a critical bulwark of our democracy—a full and impartial trial.

The Senate jurors who appear destined to vote for Trump’s acquittal, faced with the gravest duty they may ever be asked to undertake, should, regardless of their partisan predilections not merely want but should have demanded hearing from other credible witnesses.

As manager Schiff and apparently a predominant majority of Americans—Republicans and Democrats alike—have said, and as the Constitution mandates, this is an indispensable element of what throughout history we have maintained constitutes a “fair trial.” .

As any 5th grader would probably assert without coaching it requires witnesses. The Clinton and Andrew Johnson impeachments each had witnesses—41 in Johnson’s case, 3 for Clinton.

But those are not the only impeachments the Senate has heard. The records show 19 people prior to Trump who were impeached by the House, including 14 judges, a senator, a Supreme Court justice and the secretary of war.

No self-respecting attorney would argue that additional witnesses cannot be called after a trial commences. It was doubtless a conclusion that could have been more advantageous to the prosecution. Perhaps so.

No impeachment trial will ever be totally devoid of all partisanship. But some rules are a matter of long-established law and incontrovertible.

GOP Senators Mitt Romney of Utah and Susan Collins of Maine understood this and to their credit were willing to break ranks with the leadership voting for the Resolution to call for at least one additional witness.

Retiring GOP Sen. Lamar Alexander of Tennessee chose not to join them after having reached the astounding conclusion that “ … there is  no need for more evidence to prove something that has already been proven…” He went on to say it “does not meet the U.S. Constitution’s high bar for an impeachable offense….”

That’s not heroism. It is escape from accountability  That’s saying the wrongdoing might not be egregious enough to merit the ultimate sanction—and maybe for some it is not.

Impeachment proponents led by Schiff countered that more facts are needed before that conclusion can be reached and there is at least one person that could be put in the witness dock ready to reveal those facts under oath.

It required no speculation that the Democrat’s first choice would have been John Bolton, Trump’s former National Security Advisor whose testimony of what he was told to do at a personal meeting with the president could be of great importance.

Instead, by a straight party-line vote of 51-49, the Senate voted down any further chance to call more witnesses.

23 of the Senators up for re-election in November are GOP members vs 12 Democrats. A pick-up of three or four GOP seats would give Democrats back the majority. Neither of California’s U.S. Senators face re-election.

The stakes could not be higher for what Schiff and the Trump impeachers have set in motion.

Another major California lawmaker who has been rather silent is Rep. Kevin McCarthy, the Minority Leader from Bakersfield who happens to be an unconditional supporter of the President.

McCarthy is not a name very familiar to many Californians and has not yet said or done much to gain distinction.

Schiff, who has probably infuriated numerous Trump supporters, will no longer have that problem.

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