The phrase “the whole world is watching” was first used in a political context at the 1968 Democratic Convention in Chicago. Outside the convention hall, anti-war demonstrators were the targets of what the Walker Commission, tasked with investigating the disturbances of that time, termed a ”police riot.” As the violence perpetrated under the aura of official authority increased in intensity, the demonstrators chanted “the whole world is watching.”
A little history as we embark upon the open and abrupt close of Team Trump’s presentation. In my last post I wrote that today’s presentation had to be better than that of last Tuesday’s. That was me at my most optimistic. I didn’t consider “better” to be a high bar to hurdle. I was wrong.
On the plus side, Attorney Castor briefly spoke and Attorney Schoen spoke slightly more. One negative was that new attorney, Michael Van der Veen carried most of Team Trump’s water. Put simply, listening to fingernails scrape across a chalk board is more pleasurable than listening to the two hours thirty-two minutes of vitriol, obfuscation, and outright lies.
Among the lowlights was the allegation that the House Managers misrepresented or made-up evidence. What actual “proof” did they have to support these charges? Only the volume of their voices in faux outrage.
Team Trump accused the House Managers of not disclosing some of the videos used in their presentation. However such an egregious violation of the Impeachment Rules would surely have warranted a formal complaint with the Senate, but there was no such complaint. Just an unsubstantiated accusation that played at home for the only audience that counted - Donald Trump.
Another low light was when Team Trump, denying all attempts to engage in “whataboutism,” proceeded to show videos expressly focused on “whataboutism.” Specifically over the use of the word “fight.” Overall they had to have consumed about a total of twenty minutes on that one word. That was about eighteen minutes too many.
In between these distracting presentations, there was what we used to describe in the old RICLAPP offices as “nutty law.” For example, Team Trump droned on about “due process” exclaiming that their client hadn’t received any. They claimed that the due process rights afforded in a criminal trial were denied their client in the impeachment trial. Of course an impeachment trial is not a criminal trial nor under the Constitution can it be. It’s a political trial but even at that, under a fundamental sense of fairness, due process rights do attach. The former president was permitted representation by competent counsel. He was afforded the opportunity to be heard, which he refused. Rules of procedure were approved and promulgated. And if there are witnesses (doubtful as of this writing) they will give sworn testimony under the penalty of perjury.
Somebody forgot to remind Attorney Van der Veer that he can’t get it both ways. Recall a previous post briefly discussing jurisdiction. The senate voted 56-44 to exercise jurisdiction over this impeachment trial. That became the law of the case, along with the rules mentioned above. But today, Mr. Van der Veer argued that if any senator felt that these proceedings were unconstitutional for lack of jurisdiction, that could form the basis for an acquittal.
It was striking that in nearly the same breath Mr. Van der Veer was asserting strict criminal trial due process he was advocating throwing out the law of the case if a senator didn’t agree with it. I’d pay real money to see him work that legal logic mojo on a sitting judge in a Pennsylvania courtroom.
But then he said some ...words...about the strict applicability of the First Amendment to this impeachment trial. Mr. Van der Veer was in deep water here. He cited two US Supreme Court cases in support of the proposition that all elected officials have a heightened, if not absolute protection in their political speech. Team Trump asserts that their client’s words uttered and posted on social media were political in nature, and since political speech is nearly absolutely protected, and since this case is about those words, there’s no case. There being no case everyone is excused and can go home.
Nice, huh? Would that it were so easy.
The two cases, Wood v. Georgia (1961) and Bond v. Floyd (1966) don’t quite support anything close to absolute protection to officeholders. In Wood, a local sheriff criticized a judge’s instructions to a grand jury tasked with investigating black block voting. The sheriff was cited for contempt and appealed all the way to the Supreme Court. The Court held in the sheriff’s favor stating that his speech was protected if it didn’t obstruct the proper administration of justice. Hardly absolute what with obstruction being a fact based issue.
Bond was even more attenuated from any sense of absolutism. In this instance, Julian Bond, the chair of the Georgia chapter of the Student Nonviolent Coordinating Committee (SNCC) was elected to the Georgia legislature. Because SNCC openly opposed the Vietnam War, which Bond endorsed, the legislature refuse to seat Bond. The Supreme Court held for Bond stating that statements criticizing public policy must be given the widest latitude. However, this too was a far cry from absolute.
What Mr. Van der Veer glossed over was the Brandenburg case I wrote about in a prior post. Decided in 1969, although involving a Ku Klux Klan rally in in a remote field, the Court, applying its newly developed two prong test relative to incitement found that because there was no imminent danger of violence breaking out, the rally was protected under the First Amendment.
So the law wasn’t quite what Mr. Van der Veer claimed. But did that stop him? Not. A. Chance.
Mr. Van der Veer, citing James Wilson, a delegate to the Constitutional Convention and later one of the first six Justices on the Supreme Court, argued that constitutionally protected activity could not be the basis for impeachment. However, using Wilson as authority for the assertion that free speech was protected from impeachment is strained given that the tenth state to ratify the Bill of Rights did so on December 15, 1791. Given this time line, it is doubtful that Wilson would have had much of an opinion on the First Amendment one way or the other.
So where does this leave us? On Saturday, the Senate will meet to consider calling witnesses, which it likely won’t permit. Then it’s on to closing arguments and from there a vote to convict or acquit.
Any takers on the outcome?
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