The House’s articles have been analogized to an indictment, but indictments can only be brought if they are sanctioned by a neutral, disinterested party. A prosecutor must persuade either a judge or a grand jury that there is probable cause a defendant committed a crime to initiate a case. No serious person can call the House Democratic caucus a neutral, disinterested party.
Nor can a prosecutor obtain evidence under subpoena on their whim. Anyone with a subpoena to provide testimony or written evidence can challenge that in court, as many recipients of such subpoenas in investigations supervised by the office of former special counsel Robert S. Mueller III did. That is exactly what the president has tried to do in many instances with respect to subpoenas issued by committees controlled by House Democrats. But Schiff and his colleagues not only chose not to permit the judicial process to play out with respect to those subpoenas; they chose to call the president’s attempt to avail himself of his rights “obstruction of Congress” and an impeachable offense itself. How Orwellian.
The list goes on. A defendant can file a motion to suppress any evidence obtained during an investigation that she believes was illegally obtained. That motion is heard by a disinterested party — a federal judge — and that judge’s opinion can be appealed to an appellate court before the trial ever begins. Again, the House procedure denied the president that basic right by making the prosecutor, Schiff, the judge.
Even the Senate’s composition itself would fail to satisfy the federal rules. A jury must be composed of men and women who have no prejudice toward either side and have little to no prior knowledge of the facts of the case. Jurors can be dismissed for cause if they show such bias, and both sides in a trial can dismiss potential jurors without having to provide any reason with what are called “peremptory challenges.” Most Senate Democrats, many of whom have proclaimed their intention to convict Trump before the trial begins, would be easily disqualified under these standards (as would Republicans who have proclaimed their intention to acquit).
Indeed, the Senate is not in any way analogous to a criminal jury. Jurors must base their decision solely on evidence presented in court, not on hearsay and public rumor provided outside the courtroom. But impeachment of a president by its nature cannot satisfy that basic presumption; the “jurors” are always biased in some way and always have information outside the courtroom upon which they rely.
Nor would Schiff’s “new evidence” stand up in a court of law. The texts and emails from Lev Parnas, the associate of Trump’s lawyer Rudolph W. Giuliani who was charged with making illegal campaign donations, appears to have been wildly misconstrued by Schiff. Schiff’s statements Tuesday about them would have been subject to repeated objections from defendants’ counsel were they made in a courtroom. Nor is evidence of a conspiracy, which is what Schiff essentially alleges Parnas’s information provides, normally admissible against a defendant unless that person is himself charged with the crime of conspiracy, something the articles conspicuously fail to do.
Schiff’s other main piece of new evidence, the Government Accountability Office report that alleges Trump violated the Impoundment Control Act, would also be inadmissible in a real trial. Under the Federal Rules of Evidence, witnesses generally may only testify to facts. The GAO report is an extended opinion — an allegation of no more value than an opinion offered on television by Trump lawyer Alan Dershowitz. Only experts can offer opinion testimony in a trial, and the GAO’s expertise is in assessing the efficiency of government programs, not adjudicating violations of law.
But Schiff can take solace from one aspect of his unashamedly false analogy. The Constitution prevents a defendant from being tried more than once for the same offense, a practice known as “double jeopardy.” Since impeachment is not a criminal matter, Schiff and his colleagues can investigate and impeach Trump over and over again with respect to his behavior regarding Ukraine — or any other matter — until they can find a Senate willing to convict.
Don’t be surprised if Schiff and his fellow Democrats choose such a path, even while they profess their respect for the rule of law. And as Congress descends into endless impeachment, the public will be left to wonder: Have you no sense of decency, sir?