THE U.S. SYSTEM OF JUSTICE IS ON TRIAL

©Wendell Griffen, 2020

Little Rock, Arkansas

January 29, 2020

Like many others in the United States and elsewhere, I’ve been monitoring the impeachment proceedings in the United States Senate involving charges brought by the House of Representatives that President Donald Trump abused the power of his office and obstructed the Congress.  Both charges stem from reports by numerous people and testimony before the House Intelligence and Judiciary Committees that Trump held up for months almost $400 million in aid appropriated by the Congress for Ukraine, a U.S. ally fighting a war against Russian-backed insurgents inside its borders.  The charges contend that Trump held up the aid because he wanted the president of Ukraine to announce that his government would investigate debunked allegations against former U.S. Vice President Joe Biden.  Biden is considered by some observers to be one of Trump’s most formidable re-election opponents in the November 2020 U.S. presidential election (if Biden is the nominee of the Democratic Party). 

Careful readers will notice that I did not use the word “trial” in the first sentence of this essay.  Instead, I referred to “the impeachment proceedings in the United States Senate.”  I deliberately used those words because I know the difference between a trial and the farce being played out in the Senate.  Thanks to Senate Majority Leader Mitch McConnell and 52 other Republican Senators, the world has watched House impeachment managers led by Congressman Adam Schiff and lawyers for President Trump led by Jay Sekulow carry on a debate described as “opening statements” for days. 

The debate topics have included whether the Senate should issue subpoenas for witness testimony and documentary evidence.  The sides have debated whether witness testimony should be allowed.  They have debated whether the charges against Trump meet the constitutional standard of “high crimes and misdemeanors.”  They have debated whether Trump actually did what the conduct alleged in the impeachment charges.  During their respective opening statements, House managers and Trump’s defense lawyers have talked about whether conversations and records pertaining to the charges are protected by executive privilege. And the opposing teams of lawyers have debated whether Trump should be removed from office if he did what was alleged. 

We should credit Chief Justice John Roberts for maintaining the appearance of solemnity over the Senate impeachment proceedings that McConnell orchestrated.  However, we should not fool ourselves.  Chief Justice Roberts has not been presiding over anything that even remotely resembles a jury trial. 

I’m a trial judge. As a trial judge, I routinely schedule, prepare, and preside over civil and criminal trials in my judicial circuit.  Before I became a judge, I was a trial lawyer.  Between my time as a trial lawyer and my current work as a trial judge, I was an appellate court judge who decided appeals from trial court rulings and results.  The proceedings we’ve observed in the U.S. Senate don’t come close to being a trial.

To consider what should actually be happening if the charges against Trump were actually being tried by the Senate let’s begin by reviewing Article I, Sections 6 and 7 of the Constitution of the United States.

6.  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 (emphasis added).

7.  Judgment in Cases of impeachment shall not extend further than to 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.

According to Article I, Section 6, “the Chief Justice shall preside” when the President of the United States is tried in the Senate on impeachment charges.  At no place in the Constitution is there any suggestion that the power of the Chief Justice to preside over an impeachment trial of the President of the United States is shared with anyone else, let alone shared with a member of the Senate.  However, notice that the current Senate proceeding involving the impeachment charges against President Trump is being run by McConnell, not Chief Justice Roberts.  When have you ever heard or seen trials being directed by a member of the jury rather than the presiding judge?

In the same way the Constitution is clear about who presides over an impeachment trial involving the President of the United States, the Constitution is clear about what branch of government exercises judicial power.  Article III, Section 1 to the Constitution states, “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”  At Article III, Section 2, states that “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution…”  The Constitution plainly does not empower the Senate, let alone the Senate Majority Leader, to exercise judicial power.  Chief Justice Roberts should have said so, publicly, at the outset of Trump’s impeachment process. 

Trial judges across the nation know that this situation could have been easily avoided.  Chief Justice Roberts could have and should have convened a pre-trial conference with the opposing lawyers and dispelled all doubt about what his role would be.  If Senate Majority Leader McConnell or anyone else proposed any plan, resolution, or arrangement that limited the powers and duties of presiding judge, Roberts should have firmly rejected that proposal as unconstitutional as the presiding judge.  Doing so would have prevented our present situation where Roberts now finds himself a spectator to a charade that mocks any informed notion about what a jury trial is supposed to be in the United States and what a presiding judge is supposed to do to ensure that the trial is conducted properly.

In real trials, the presiding judge decides disputes about what testimony and documentary evidence is relevant and admissible.  In real trials, the presiding judge sets limits on whether lawyers can engage in repetitive and redundant remarks.  In real trials, presiding judges don’t permit lawyers to waste time.  In real trials, jurors don’t tell presiding judges whether subpoenas can be issued.  Jurors don’t tell presiding jurors whether claims of privilege are sustainable. 

Jurors don’t preside over real trials, no matter what title they hold before the trial starts.  In real trials, judges preside.  We ensure that trials are conducted fairly and efficiently.  We schedule pre-trial hearings with lawyers to hear and resolve disputes about witnesses and documentary evidence so the parties can know before the trial begins what witnesses and documentary evidence can be presented during the trial. 

Had Chief Justice Roberts – the only person authorized by the Constitution to preside over Trump’s impeachment trial – held a pre-trial conference similar to what trial judges routinely convene throughout the nation, the Senate, nation, and wider world would now be watching witnesses testify under oath in response to questions from House impeachment managers and Trump’s defense counsel.  We would not have endured days of mind-numbing wrangling by opposing teams of lawyers about matters that are exclusively within the powers of presiding judges to resolve. 

Had Chief Justice Roberts held a pre-trial conference, House managers and Trump’s defense lawyers could have presented their arguments and obtained his rulings at the pre-trial conference concerning whether former National Security Advisor John Bolton, White House Chief of Staff Mick Mulvaney, Secretary of State Mike Pompeo, and other witnesses could testify.  The Chief Justice would have already ruled whether documents sought by the impeachment managers could be subpoenaed and introduced as trial evidence.

Had Chief Justice Roberts held a pre-trial conference, we would not be watching and listening to Senators talking during breaks about whether witness testimony and documentary evidence would be presented.  Roberts (like any other presiding judge) should and would have admonished Senators to not discuss the trial with the media, not talk with lawyers, witnesses, and other persons connected to the trial (including Trump and his surrogates), and not talk at all about the trial.  Roberts should have done that distinctly judicial function.  Whether executive or some other privilege applies to witness testimony and whether documents and other records are “discoverable” and admissible are not matters for politicians to resolve before or during trial.   

Judges don’t decide the facts in jury trials.  Jurors don’t rule on the relevancy and admissibility of evidence during jury trials.  The foreperson of the jury (the role that McConnell has during what is supposed to be Trump’s impeachment trial) shouldn’t be allowed to hustle votes from jurors about whether evidence is relevant, admissible, and privileged.  Jurors aren’t allowed to engage in conversations and deals about “witness swaps.” None of those matters are within the duties of jurors in any trial throughout the nation.  We are watching a running argument about these questions during Trump’s impeachment proceeding because Chief Justice Roberts has allowed Mitch McConnell to pervert what is supposed to be an impartial judicial trial into a partisan exercise in political theater. 

 

Had Chief Justice Roberts conducted a pre-trial conference, Senators and the rest of us would not have endured more than a week of “opening statements.”  I’ve been involved in murder trials, product liability trials, trials in construction cases, commercial disputes, trials about alleged theft of trade secrets, and trials about numerous other disputes.  None of the trials involved opening statements that lasted a fraction of the time spent in Trump’s impeachment proceeding. 

Judges and lawyers also know that trials are ultimately contests about evidence and that trial results are supposed to be based on the evidence, not on the opening statements.  Opening statements are only presentations by lawyers about what they what they expect the evidence will show.  Trial judges routinely tell jurors to listen carefully to opening statements, but remind jurors that opening statements and closing arguments are not evidence.  No matter what lawyers tell and show jurors during opening statements, opening statements don’t prove anything. 

I would have given each side no more than three hours to present an opening statement.  That would have allowed Senators to hear the opening statements during the first day of trial.  The opening statements in Trump’s case should have been history a week ago.  Mitch McConnell didn’t want that to happen because he doesn’t want Trump to have an impeachment trial.

After opening statements, evidence is presented through witness testimony and documentary records introduced by lawyers for the opposing parties.  Lawyers call witnesses to testify.  Witnesses are placed under oath or affirmation to testify truthfully.   

Trump’s impeachment proceeding began over a week ago.  Long before now, the Senate, nation, and world should have seen witnesses in Trump’s case undergo direct and cross-examination by the lawyers for House impeachment managers and Trump’s defense team.  Long before now, documents and other records related to matters involving that testimony should have been offered and received into evidence.  By now, Senators, the nation, and world would already know John Bolton’s testimony if this were a real trial presided over by any other judge in the nation.  The same is true for Secretary of State Pompeo, Chief of Staff Mulvaney, and every other witness. 

During the pre-trial conference, I would have required that each side indicate how many witnesses (by name) would be called to testify in order to determine how much time to allocate for witness testimony.  Judges vary when it comes to the pace of testimony.  I routinely tell lawyers during pre-trial conferences that I will not try their case, but I will also not allow them to try the jury by wasting time and engaging in conduct that results in avoidable delay.  If each side was allotted 5-7 six hour business days (30-42 hours) to present its case beginning at  1 PM (Eastern Standard Time) each day (to accommodate the duties the Chief Justice must fulfill at the Supreme Court each day), there is no reason competent lawyers should not be able to present the evidence over a two-week time span. 

If the lawyers insist that more time is required for witness testimony, they could certainly argue for additional time.  However, I and any other trial judge would insist on knowing why they need more time.  What other witness testimony and documentary evidence do the parties need time to present?  Why would it take competent and experienced lawyers more than two weeks to present proof on whether Trump committed the alleged conduct? The lawyers were certainly entitled to ask for more time and argue why more time was justified.  But that argument should have been presented to Chief Justice Roberts and decided by him long before now.    He is competent to decide the question.  After all, Chief Justice Roberts is the highest ranking judge in the nation.

But Mitch McConnell never intended for the chief justice to perform that basic trial judge work.

After each side has finished putting on evidence (witness testimony and relevant documentary proof), opposing sides present closing arguments.  I would have allocated no longer than three hours per side for closing arguments in Trump’s case.  Because the burden of proof rests with the House impeachment managers, the impeachment managers would reserve part of their allotted time to rebut the argument made by Trump’s lawyers.  The House impeachment managers would go first and argue last during closing arguments because they have the burden of persuading the Senate that Trump is guilty of abuse of office and obstruction of Congress. 

After both sides have completed closing arguments, trial judges direct jurors to deliberate about the evidence in order to arrive at a verdict on each charge.  The jury deliberation should focus on whether jurors believe the evidence proves that Trump abused the power of his office and whether he obstructed the Congress.  Jury deliberation should be conducted in a closed setting to allow Senators to discuss their candid impressions about the credibility of witness testimony and the weight to be accorded documentary evidence.  

When two-thirds of the Senate (67 of the 100 Senators) agrees on a verdict (guilty or not guilty) on each charge, the Senators should present their verdicts.  I would require Senators to individually and publicly confirm their assent to each verdict. 

Notice that I mentioned that 67 Senators must agree in order to return any verdict.  Unless 67 Senators agree there is no verdict.  If 67 Senators agree that Trump committed either or both of the offenses charged by the House, their verdict must be that he is guilty.  If 67 Senators agree that Trump did not commit either or both offenses charged by the House, their verdict must be that he is not guilty.  If 67 Senators cannot agree on guilty or not guilty, Chief Justice Roberts would be obligated to declare a mistrial. 

Again, Mitch McConnell doesn’t want the world to know that Trump cannot be acquitted unless 67 Senators agree that he is not guilty.  McConnell seems to prefer that Trump to be able to announce himself acquitted if 67 Senators are unable to agree that he is guilty – even if 67 Senators cannot agree that he is not guilty.  Every trial judge in the country knows that is wrong. Chief Justice Roberts certainly knows it.

Finally, Chief Justice Roberts knows that if the Senate returns a guilty verdict, there is no constitutionally permissible alternative to Trump’s removal from office.  An impeachment trial is not an exercise in deciding whether to censure the President.  The penalty for impeachment is removal from office and permanent forfeiture of the right to hold another federal office or position of trust in the future. 

 

Make no mistake.  Chief Justice Roberts, the highest judge in the nation, is more than competent and capable of discharging each of the trial judge functions I’ve addressed.  Lawyers know this. Laypersons who know anything about how jury trials are conducted know this.  Senators know this. 

Instead (and for reasons I do not understand), Chief Justice Roberts has relegated himself to be a mere chaperone for the farce McConnell masterminded to protect President Trump from undergoing anything close to a real trial on the impeachment allegations.  Like Trump, McConnell, doesn’t want the Senate, nation, and wider world to know the proof surrounding the impeachment charges.  Trump and McConnell prefer that we argue about whether Trump should be removed from office, not whether there is credible relevant testimony and documentary evidence pertaining to the impeachment charges that can be introduced and weighed as proof during a real trial.

It remains to be seen whether Roberts will stir out of the ceremonial role McConnell has assigned him and exercise his constitutional duty as presiding judge over an actual impeachment trial.  Although I am disappointed he has not already done so, it isn’t too late for Roberts to begin behaving like a presiding judge.  He simply needs to hold a public hearing and declare to McConnell, Senate Minority Leader Schumer, the House managers, Trump’s defense lawyers, the Senate, and the wider world that the Constitution of the United States empowers him, and him only, to exercise the duties of presiding judge.  He could then rule on the outstanding disputes about witness testimony, documentary evidence, subpoenas, and claims of executive privilege. 

Then Chief Justice Roberts should recess the trial to allow lawyers time (2-3 weeks should be adequate) to conduct witness subpoenas and review and obtain the documents they hope to introduce at trial.  Afterwards, a real trial could occur during which House managers and Trump’s defense lawyers would call witnesses and introduce documentary evidence.  Senators certainly don’t need to endure another round of “opening statements.”

Chief Justice John Roberts is the only person authorized by the U.S. Constitution to preside over Trump’s impeachment trial.  He needs to say so, clearly and emphatically, and remind Mitch McConnell that McConnell is not authorized to decide how the trial will proceed.  That is the work of the presiding judge. 

For the sake of justice, the Constitution of the United States, and the integrity of this process, we all should hope the Chief Justice breaks free from McConnell’s spell.   The U.S. system of justice envisioned by the Constitution is on trial.  The Constitution entrusts Chief Justice Roberts with the sole power to preside over Trump’s impeachment trial so that it is conducted according to principles of impartial justice.  The Constitution didn’t entrust that power to Mitch McConnell, nor should we.