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It is a "bench" trial but the judicial panel consists of all the Senators

Impeachment Trial Tips For Republicans



Impeachment Trial Tips For RepublicansAn Impeachment Trial Brief for Senate Republicans:

The U.S. Senate will hold a trial on the impeachment of President Donald Trump most likely starting during January 2020.  This extremely short Cliff's Notes may help staffers and Senators: 

Speaking as a trial attorney, with easily a thousand cases argued in court and probably a hundred actual trials, I insist how critically important is preparation.  Easily more time is spent in the office preparing the trial than the trial itself.  Recently Christine O'Donnell challenged me to even higher levels of organization down to attaching to every key document a legal memo specific for each evidentiary exhibit.

First, Harvard Law Professor Alan Dershowitz explains well and in detail, including in his book The Case Against Impeaching Donald Trump.  The Professor shows how impeachment and trial in the Senate are clearly intended to be as close as possible to an actual legal trial. 

Second, there is unhelpful controversy about whether the U.S. Senate should hold a trial or decide the case on motions.  They are the same thing.  When the Founders wrote the Constitution, they obviously understood "trial" to mean how trials are conducted in court.  

A trial often includes a variety of pre-trial motions or motions on the day of trial preliminary to the start.  I had a trial in November, with the jury pool waiting in the hall to be ushered in, dismissed on an unannounced, last-minute, surprise (and I think wrong) motion sprung on us as a "preliminary matter."  The jury pool in the hall was sent home.  That's what a trial means.

So demands on whether there will be witnesses are wrong-headed. "That's not how this works.  That's not how any of this works." Decisions on motions dictate how the trial progresses.  For example, if a pre-trial motion in limine rules hearsay inadmissible, a potential six week trial suddenly shrinks down to a three day trial.


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Third, therefore, Senate Majority Leader Mitch McConnell should immediately schedule a day for pre-trial motions in mid to late January, and schedule the actual trial about three weeks later.  Preparations should be extensive and will be modified by decisions on the pre-trial motions.  Exact excerpts from every House witness and exhibit must be painstakingly compiled indexed, and memorized.  (On January 20, President Donald Trump needs to be in Atlanta, Georgia or Memphis, Tennessee honoring reformer and disrupter Martin Luther King's contributions to a changed society with Alveda King and K. Carl Smith.)

Fourth, Trump's lawyers should file a motion for a bill of particulars.  For example, Democrats chant loudly that Trump asked Ukraine to intervene in the 2020 presidential election.  But the witnesses all contradicted that in their House testimony.  All the witnesses were explicit that they believed (as inadmissible triple hearsay) that Trump wanted an investigation into events in the 2016 election.  None of the witnesses mentioned 2020.  A bill of particulars should be demanded to identify any grounds concerning 2020 rather than 2016.

Democrats must identify when was the deadline for Trump to distribute taxpayer funds as a gift to Ukraine.  How can funds be late or delayed when there was no date by which they were to be disbursed?  Funds are never spent on the day Congress votes.  There are many dozens of procedures.   Funds distributed by 11:59 P.M. on September 30 are "on time."  

A bill of particulars must explain how there could be an illegal quid pro quo when the Ukraine was already obligated under the  “Treaty Between the United States of America and Ukraine on Mutual Legal Assistance in Criminal Matters,” ratified in 2000.  What Trump asked, Ukraine was already required to do.  Trump was merely being polite by asking "do us (the country) a favor."


A bill of particulars must identify all witnesses who have direct, first-hand knowledge, not rumors or opinion.   Also who do impeachment prosecutors assert sets U.S. foreign policy?

Fifth, there should be a motion to dismiss until House Democrats release all transcripts of secret interviews and testimony in Adam Schiff's Intelligence Committee.  That is a violation of due process so fundamental as to invalidate the impeachment.  In federal court, cases are routinely thrown out for violating  Brady v. Maryland, 373 U.S. 83 (1963).

Sixth, pre-trial motions in limine are needed to exclude hearsay evidence, exclude opinion testimony (none of the witnesses can qualify as scientific expert witnesses on what they think Trump had in his mind), and any testimony lacking a foundation of personal knowledge.  Knowing at least three weeks before the trial that such evidence will not be allowed will have a dramatic impact on trial preparations.  You don't want witnesses to disrupt their lives and show up but not be allowed to testify.  You don't want presenters scrambling through mountains of paper because the plans have all changed.

Seventh, impeachment of a president requires Chief Justice of the U.S. Supreme Court John Roberts to preside.  Clearly the Founders intended for the Senate trial  to run -- as much as possible -- the same as a trial in federal court.  For consider:  How could the Chief Justice rule one way in the Senate chambers and a different way literally across the street, in the U.S. Supreme Court building on another day?   



But, some may question that the Supreme Court does not hold trials.  Actually, there are rare categories of cases that originate there.  However, the Supreme Court actually wrote the rules which govern trials in the federal courts and regularly interprets those rules for real-world trials. 

The trial should start with a motion before the presiding Chief Justice that the trial must conform as closely as possible, at least in spirit, to a trial in federal court.  It should not be the wild West.

Eighth, the U.S. Constitution is incredibly brief.  Vast powers and processes are often mentioned in only a part of a sentence, not even a complete sentence devoted to the topic.  And yet we have been guided by just fragments of a sentence as the iron law of our nation. 

A pre-trial motion to dismiss should be made that Nancy Pelosi's Articles of Impeachment do not qualify as impeachable offenses.  Impeachment is not partisan whim.  It is most definitely not "whatever a majority in the House says it is."  These Articles are null and void. 


Ninth, no, Senators are not jurors.  Federalist Papers No. 65 and 66 make clear that the Senate is the court -- that is the judges, not jurors.   "There will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it. The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons."

Impeachment is "political" only in the sense that the judges must answer to the body politic.   The Founders considered trying impeachments in the Supreme Court, but chose the Senate more accountable to the public politically.   The Senators are judges, sitting collectively, not jurors.  It is a "bench" trial but the judicial panel consists of all the Senators.

No Senator may recuse herself or himself.  In trials in court, jurors and judges can easily be replaced.  Here, there are no alternates who can serve in their place.  As clearly intended by our Founders, the trial is before the Senate that we have.  They knew that those Senators will belong to "factions" as a "political branch." 

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Jonathon Moseley -- Bio and Archives

Jonathon Moseley is co-founder and Legal Counsel of Americans for the Trump Agenda, and Executive Director of the White House Defense Fund.  Moseley is serving as Legal Counsel for Americans for the Trump Agenda, and is also a Virginia business and criminal defense attorney. Moseley and a co-host with the “Conservative Commandos” radio show,  and an active member of the Northern Virginia Tea Party.  He studied Physics at Hampshire College, Finance at the University of Florida and law at George Mason University in Virginia. Moseley promoted Reagan’s policies at High Frontier and the Center for Peace in Freedom. He worked at the U.S. Department of Education, including at the Center for Choice in Education.


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