We recently talked about how property managers claim the right to use Trump’s failure to testify in his trial as evidence of guilt (despite the fact that presidents have not given such testimony in Senate trials in the past). Now CNN has published (the day before the clashes) a report by an unnamed former “senior aide” that Trump watched the Capitol uprising and “loved watching the Capitol mob”. The same pattern was shown in the first Trump attempt. History underscores the House’s decision not to call witnesses before or after his impeachment. The question is, why would the House use implications, innuendo and inference if it could have used direct evidence to seek the conviction of Donald Trump?
The CNN story highlights what did not happen in Donald Trump’s second trial. No prosecutor would let weeks go by without locking up the testimony of witnesses who could provide direct evidence of Trump’s testimony and actions during that time. The media had no trouble finding these witnesses, and about a dozen names are already known. We know them because many of them have spoken publicly before – an indication that they could easily appear before House Committees without subpoenas (or would not challenge subpoenas).
I have no problem accepting that Trump enjoyed scenes of violent protest, but I want evidence to be in the form of testimony rather than media coverage. It’s the kind of report that can shed light on Trump’s state of mind, but the House seems perfectly content with just being a pedestrian watching the media interviewing key witnesses.
The result is an attempt that is inherently cumbersome. There is, of course, ample evidence of what happened. No credible trial attorney leaves a circumstance when he can use direct evidence. Much of this evidence and much of this witness is known to the House. However, it has largely opted for a circumstantial case.
The question is whether the House will highlight this flaw by referring to the CNN story and relying on media reports rather than affidavits. There are literally no record of an impeachment trial, impeachment investigation, or a formal response from the President in the House. So it will either rely on videos of the rioters or try to label named and unnamed witnesses presented in the media as hearings. The split will only heighten the regulatory concerns of senators and commentators, including myself.
There is also a pattern for this late release. We saw the same thing before the first Trump trial. The house refused to summon or call witnesses to the House Judiciary Committee. The media then published stories from some of the same people who were not asked to testify shortly before the trial. Some people had testified clearly while others said they just wanted subpoenas. Later witnesses, such as former National Security Advisor John Bolton, accused the House of “wrongdoing” in its flimsy pursuit of impeachment. Now, after weeks of inactivity out of the house, we have the same late gotcha stories.
This may be a trial attorney’s bias, but I prefer evidence of modus operandi over media operandi in impeachment trials.