Last night I collapsed in exhaustion. Living through a week of doing nothing but watching the trial on TV knocked me out.
At some point during the week I ran out of necessities. I considered begging Jamie Raskin for a break so I could run to the store, but then he ended the opening arguments. He must have sensed I was out of margarine and garlic. So I staggered out to shop.
I’m aware that so many people I respect — on Twitter and in life — are infuriated at the outcome. Maybe a few observations will salve the bleeding wounds.
—First, it was not a criminal trial, not even an unconventional criminal trial. Rules of procedure which apply in real trials did not apply here. Think of it as a sort of “reality” TV court, with serious lawyers on one side only. A split screen, in effect.
—The House managers and their staff, in an astonishingly short time, compiled the sort of powerful time line I had come to appreciate when I worked for lawyers and compiled evidence, a video and audio record that was more horrifying than know-it-all me, for one, realized. I’d watched the attack in real time and read everything about it. But I had not grasped the terror of a mindless, raging mob yelling death threats until the video put me right in the middle of them, and in the middle of the police who were trying to defend the Capitol. And then showed me where on that plan of the Capitol the rioters were.
—That video compilation did probably more than half the investigative work necessary for a prosecutorial office to bring indictments, not only against the mob but against all those who participated in the incitement. Several senators were involved, as were Trump’s official lackeys who seem not to understand that previous pardons do not cover this activity. The other half of the investigative work will be making the connections among the inciters and the mob, and following the finances.
—Virtually all of the people going nuts about this are not lawyers. The lawyers I follow are seeing the impeachment trial as a kick-off to criminal trials, federal, state and district. This morning, Lawrence Tribe posted this on his Twitter feed: “18 USC 2383: “Whoever incites,… assists, or engages in …insurrection against … the United States or the laws thereof, or gives aid or comfort thereto, shall be … imprisoned not more than ten years … and shall be incapable of holding any office under the United States.”
—The most brilliant lawyering I’ve ever seen. Moreover, each House member’s presentation was a riveting oration on law, on politics, on philosophy…on everything.
—Usually, defense lawyers are more intelligent than prosecutors, for a number of reasons I won’t go into here. But Naomi’s Rule ⇑ didn’t apply here. Oh, geez, what on earth were Trump’s lawyers doing? No need to respond. No need to remind me one of them said, “resurrection” when he (presumably) meant “insurrection.” No need to remind me I went to my dictionaries several times to confirm the definitions of “insurrection” and “incitement.” Which at least one of these dorks defined incorrectly. (You’d think they’d have done enough prep to know the definitions of the case they were defending, wouldn’t you?)
—Several Twitter pals described what the defense lawyers seemed to be doing as: “Reminds me of the time in high school when I was called on to discuss a subject for which I hadn’t done any homework so I just talked and talked and threw out words.”
—And let’s be blunt: the defense lawyers were fools. Utterly overmatched. In a real trial, a judge would have reprimanded them numerous times. (In a real trial, a judge would have summoned patently inattentive jurors into chambers for an interrogation before dismissing them, but…)(And in a real trial, the judge would have thrown out both the jurors who were obviously prepping the lawyers and the lawyers themselves, but…)
—I’ve known and experienced personal injury lawyers. Indeed, I wrote here on Sidebar the absurdist saga of my complaint against my own personal injury lawyer (under the category “Filing a grievance against a lawyer.”) From that experience it’s my opinion that one of the lower rungs in the attorney hierarchy is filled with personal injury lawyers. This is (my opinion again) because: personal injury lawyers get to determine before they sign a client how much money they are likely to make; so PI law is probably the easiest way of making a living as a lawyer; most of the cases are boilerplate; most of the PI lawyers I’ve met are really sort of…I dunno…not bright.*
—Witnesses? You wanted witnesses? The witnesses for this unconventional trial were in the videos, describing what was happening to them in real time, with real emotions, real fear, real agony. The time it would have taken to summon, depose and select witnesses would have been worse than counterproductive in this procedure. And don’t forget, the opposing side gets to cross-examine…in this case, without the control of a judge who could stop them from nonsense. Without a judge, the trial would have descended even deeper into absurdity.
—The House managers could have selected witnesses. But they could not select the jury. Lawyers have to appeal to the jury they’ve got, not the one they would have chosen. In a courtroom trial, the lawyers voir dire potential jury members, interviewing all of them in advance. By the time the lawyers use their pre-emptory challenges to eliminate jurors they feel might be prejudiced and come up with a jury, they know personally much of the character of each juror.
—During one trial I had a bit to do with, the great lawyer I worked for told me that he knew one juror did not like him so he found ways of addressing her dislike indirectly, except once, during his closing. In the end, she voted for the defense position.
—As I watched and listened to the impeachment trial, and was uncharacteristically horrified by what had happened, it seemed impossible that anyone experiencing this could not blame Trump, a little tin god whose mobs are as empty of human value as he is. Yet I watched the vote stoically.
—I do believe this trial and the eventual vote heralds the full disintegration of the Republican Party. Swatches of the video will run as campaign ads against everyone who voted for Trump, or who earlier voted not to confirm the Electoral College votes.
Here are the House impeachment managers: Jamie Raskin, Diana DeGette, Joe Neguse, David Cicilline, Joaquin Castro, Eric Swalwell, Ted Lieu, Stacey Plaskett, Madeleine Dean. Reminder: the Biden administration has started to compile a list of potential judicial nominations with a new concentration on public defenders and civil rights lawyers. Several of the House managers fill the bill.
*I’d say I’ve made myself persona non grata to any PI lawyer if I ever am injured again, except their nose for a good case (I once heard a PI lawyer describe a case in which their client was brain dead after a fall from a horse as “a good case”) beats out the odor of a potential client who doesn’t think much of them.