Constitutional scholar: Dems' case doomed from the start

U.S. Rep. Jamie Raskin, D-Md., as House impeachment manager on Tuesday, Feb. 9, 2021. (C-SPAN video screenshot)

It’s the third day of the second impeachment trial of former President Trump, but a liberal constitutional scholar says not only that the Democrats haven’t made a case for conviction, they were doomed from the start.

In a Fox News interview Thursday afternoon, Jonathan Turley, who testified in the first impeachment investigation one year ago, said the House “dug a pretty deep hole” in adopting the article of impeachment charging incitement of insurrection.

The Democrats have to make that case, he said, backed up by witnesses and evidence, and they haven’t.

“You can’t just say [Trump’s] a really awful person, isn’t he, and he shouldn’t run again,” Turley said.

“If reckless rhetoric is the standard, then the American public will have trouble distinguishing between the accused, the jurors and the prosecutors,” he said, referring to the inflammatory statements of many Democrats.

In this “snap impeachment,” the law professor said, the Democrats don’t have any witnesses. At one point, for example, they cited a senior aide who spoke to CNN under condition he not be named. But that’s not good enough in a trial, he said, and the Democrats had plenty of time to speak with that aide themselves.

Turley, in a column on his website, noted that near the end of the first full day of the trial on Tuesday, Sen. Mike Lee, R-Utah, rose to object that a quote by House manager Rep. David Cicilline, D-R.I., from a Deseret News story was false.

Cicilline charged that a phone call from Trump to Lee during the Jan. 6 riot proves Trump knew about the riot, was relishing it and was calling to further delay the electoral certification. But Cicilline failed to mention that the article also states Lee “got the impression that Trump didn’t know about the chaos going on in the Senate chamber.”

The lead House manager Rep. Jamie Raskin, D-Md., eventually said that Cicilline’s statement would be withdrawn, insisting “this is much ado about nothing, because it’s not critical in anyway to our case.”

But Turley argued that it “had much to do about the manager’s case and highlights a glaring problem in it.”

“The House has elected to try this case of incitement of insurrection largely on circumstantial evidence and using media reports rather than witness testimony,” he wrote. “It is trial by innuendo and implication rather than direct evidence of what former President Donald Trump knew and intended on Jan. 6.”

Another rushed vote

Turley argued that the House had “weeks to call witnesses to lock in their testimony and create the public record missing in its impeachment.”

“As with the first impeachment, it rushed through the vote as an urgent matter and then did nothing,” Turley wrote. “It did not send the article to the Senate, and it did not call witnesses before any committees.

“Even if the snap impeachment were justified, the failure to create a record after the vote was not,” he said.

Turley said it’s unclear why the House managers “do not want to make a more solid and conventional case for incitement when these witnesses are available to remove doubts on these questions.”

“With acquittal extremely likely, one would think that the House would seek hard testimony to force senators to reconsider their positions,” he wrote.

Turley said the “Lee kerfuffle was damaging not because it forced the House managers to withdraw Cicilline’s words.”

“It was damaging because it highlights what is not in the House case,” he said. “It has ‘much to do’ with the credibility of that case.”

‘Not guilty’ votes growing

Sen. Lindsey Graham, R-S.C., said after Wednesday’s hearing the number of “not guilty” votes was “growing.”

He tweeted that “most Republicans found the presentation by the House Managers offensive and absurd,” the Washington Examiner reported.

In an interview Wednesday night with Fox News’ Sean Hannity, he acknowledged that what happened in the Capitol was “terrible.”

“I hope everybody involved that broke into the Capitol goes to jail,” he said. “But I don’t remember any of these House managers saying a damn thing when they were trying to break into my house and going after Susan Collins and spitting on all of us.”

About half-a-dozen Republican senators are expected to vote to convict, which is far short of the 17 needed, The Hill reported.

The six are Sens. Mitt Romney of Utah, Lisa Murkowski of Alaska, Ben Sasse of Nebraska, Susan Collins of Maine, Pat Toomey of Pennsylvania and Bill Cassidy of Louisiana.

Romney called what happened on Jan. 6 “an insurrection incited by the president of the United States.” After watching videos Wednesday of the violent clashes between rioters and Capitol Police that left more than 100 officers injured, the Utah senator said it “tears at your heart and brings tears to your eyes” and was “overwhelmingly distressing and emotional.”

Murkowski called on Trump to resign after the Jan. 6 incident and said Wednesday that after “the American public sees the full story laid out here … I don’t see how Donald Trump could be reelected to the presidency again.”

Sasse didn’t support Trump’s presidential campaign in 2016 or 2020. He won reelection in November by winning all of Nebraska’s 93 counties. But he was censured by Nebraska state Republican officials for his vote to proceed with the impeachment trial.

Collins voted with Romney at Trump’s first impeachment trial to call new witnesses. She said after the Jan. 6 riot that the president “does bear responsibility for working up the crowd and inciting this mob.”

Toomey, who has announced he will retire at the end of 2022, blamed Trump for the Jan. 6 violence in remarks on the Senate floor after Capitol Police restored order.

“We saw bloodshed, because a demagogue chose to spread falsehoods and sow distrust of his own fellow Americans,” the Pennsylvania senator said.

Cassidy’s vote Tuesday to allow the trial to proceed stunned colleagues. He said after two hours of arguments that Trump’s defense team was “disorganized” and “unfocused.”

The Republican Party committee of his home parish shot back, voting unanimously to censure him. The Louisiana Republican Party said it was “profoundly disappointed” in his vote.

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