Musing about law, books, and politics

Impeachment and Removal is not a Criminal Proceeding.

There was some panic today on Twitter when Sec. Pompeo defied Congress and refused to cooperate with the impeachment inquiry.

Sadie asked:

No, and creating this kind of panic and expectations is doing a great deal of damage.

This is not a criminal trial in which the “defendants” can refuse to turn over evidence and then claim that the prosecutors didn’t meet their burden of proof.

Impeachment hearings are not criminal proceedings. The “defendant” (President) does not have the usual protections in criminal trials. See my post on Trump’s “defenses.”

If the Trump administration refuses to turn over evidence, they look guilty.

Sometimes in civil trials (non-criminal) the burden of proof can shift to the defendants. After what is called a prima facie (“on its face) case is made, the burden shifts to the defendant to prove that he didn’t do what it appears he did.

The burden can shift if the defendant is the only person with the evidence.

Representative Ted Lieu understands how to frame it:

In a criminal trial, a defendant can cross his arms over his chest, refuse to talk, and say “prove it.” The burden is on the prosecutor then to prove each element of the crime beyond a reasonable doubt.

Trump wants everyone to think this is analogous to a criminal trial.

He wants people to think he’s entitled to all the protections of a criminal defendant.

Those protections exist because if a person is convicted of a crime, he loses his rights to his liberty, property, or even his life. The president in an impeachment trial faces no such jeopardy.

Impeachment and removal are about removing a corrupt president.

Refusing to hand over evidence is further evidence of corruption.

Refusing to hand over evidence is further evidence of law-breaking.

Hand-wringing and crying: “OMG Trump & Pals are stonewalling Congress! They will to destroy democracy!” helps Trump because it:

  • creates panic, 
  • undermines confidence, and
  • encourages cynicism

These things just happen to be the same goals of Russian Active Measures.

Instead, we should be saying, “HA! See how guilty they are? Why are they refusing to testify? Why are they hiding evidence?

Because they are GUILTY.”

This will help get public opinion behind impeachment and removal.

Also, it’s the truth.

[View as a Twitter thread]

(I wrote a second blog post today as well, but I didn’t want to send out two email announcements. Click here to see Destroying the Deep State.)