I have refrained from writing about impeachment, but the farcial, shameful character of the proceedings can’t be allowed to seem normal or acceptable.

 It is always good to start by looking closely at the Constitution.  (Please note that in some instances the spelling and capitalization are not modern.)

 Article I, Section 2[5], states:  The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of impeachment. 

 Article I, Section 3 [6] states:  The Senate shall have the sole Power to try all impeachments.  When sitting for that Purpose, they shall be on oath or affirmation.  When the President of the United States is tried, the Chief Justice shall preside:  And no Person shall be convicted without the Concurrence of two thirds of the Members present.   

 Article I, Section 3 [7], states:  Judgment in Cases of Impeachment shall not extend further than removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States:  but the party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

 Article III, Section 4 states:  The President, Vice President and all civil officers of the United States, shall be removed from office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

 Article II, Section 3 [1], states:  Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

“Bribery” is not defined by the Constitution.  The typical legal definition is “the corrupt payment, receipt or solicitation of a private favor for official action.”  A “bribe” is usually legally defined as “a price, reward, gift or favor bestowed or promised with a view to pervert the judgment of or influence the action of a person in a position of trust.”

The phrase “high Crimes and Misdemeanors” is not defined by the Constitution.  Nevertheless, that phrase has traditionally been interpreted to mean “any misconduct which affects the public welfare or indicates unfitness on the part of the official.”

If you have been following the impeachment proceedings, you will notice that the words “quid pro quo” (something for something) appear nowhere in the Constitution and mean nothing unless it is a shorthand way to say Trump was demanding something (investigation of the Bidens by Ukraine) for something (Congressionally approved military aid to Ukraine).

The Constitution does not require the commission of an act that is defined as a crime by the laws of the United States or any state.  The conduct may constitute a crime, but it doesn’t have to, and there is no requirement that the official has to be formally charged with a crime. 

Of particular interest is the Senate’s obligation “to try” all impeachments.  There has always been a widely accepted belief among legal experts that the House functioned as a grand jury and passes, by majority vote, “articles of impeachment,” which perform the function of an indictment, i.e., a charging document.  At the trial in the Senate, the House acts as the prosecutor through an appointed committee of managers, and the Senate sits as a court.  If the proceedings involve the President, the presiding officer is the Chief Justice of the United States.  The Senate is not obligated to follow all the technical rules of judicial procedure, but it is obligated to accord the accused the principal rights he would have in a court of law, such as a lawyer, compulsory process for obtaining witnesses and the right to call witnesses to testify.

It doesn’t take a lawyer or Constitutional scholar to understand that when the Framers used the word “try,” they meant a trial. I also submit that the common understanding (then and now) of what a trial is includes the ability to call witnesses to testify live and in person and to secure their attendance by legal process if necessary.  Literally for centuries it has been a bedrock principle of our judicial system that the trier of fact, in this case the Senate, is the sole judge of the credibility of the witnesses and the weight to be given their testimony.  The credibility of witnesses cannot be judged without seeing and hearing them testify and subjecting them to examination and cross-examination. 

The decision by Senate Republicans to prevent witnesses from being called to testify is unprecedented and a complete abrogation of their Constitutional responsibility.  It is preposterous to say that Senators can fulfill their oaths and Constitutional duty by not hearing live witnesses.  That includes all the witnesses who possess knowledge of relevant facts. If we equate the House’s Bill of Impeachment to an indictment and the appointed House managers to prosecutors, then the managers should be allowed to prove the allegations in the indictment by calling as many witnesses as they think are necessary to meet their burden of proof, i.e. burden of persuasion. The Senate’s decision to limit the evidence to that which was considered by the House even though new testimonial and documentary evidence exists is ridiculous.  It is the same as a District Judge in a criminal case telling the elected District Attorney that only evidence heard by the Grand Jury will be admissible before the jury at the full trial of the case or that a newly discovered eyewitness won’t be allowed to testify.   

Since the Republican Senators made up their minds to acquit before they pretended to have a trial, perhaps it makes no difference what kind of process they use, but let’s don’t be fooled by their double-talk.  There is real value in following legal processes that have been developed since the Magna Carta.  Those processes were developed and designed to get at the truth.  While the Senate may not care about the truth, the public does.  Furthermore, we should care that the Senate does its job and does it in a way that is Constitutional, public, fair, open, honest and consistent with the oaths they took to defend and protect the Constitution.  They act as if they took an oath to protect and defend Donald Trump.  Much, much more is at stake.  Justice is at stake. Precedents and examples are being set.  The Constitution is at stake.  The personal honor and oaths of Senators are at stake.  This is a permanent stain on the Senate and the individual Senators. 

 It was, of course, a foregone conclusion that Trump would not be removed from office despite the fact he was trying to obtain a personal political advantage by withholding military aid from a crucial ally that is engaged in a war with our sworn enemy.  Nevertheless, Nancy Pelosi got it right when she said, “You cannot be acquitted if you don’t have a trial.  You don’t have a trial if you don’t have witnesses and documentation…”

 Trump won, but at great cost to the country, the Constitution, democracy and justice. 

 At least Republican Senator Lamar Alexander of Tennessee was truthful.  When he was asked about not hearing from witnesses, he flatly stated that Trump was guilty (although he intended to acquit) and that hearing from witnesses was unnecessary.  As he put it, if 8 witnesses have said you left the scene of the accident, what difference does it make if you hear it from 9 witnesses.