They Sure Do Look Guilty
A prosecutor’s seasoned view of the Republican performance in the matter of Trump’s impeachment
As I watch the impeachment proceedings unfold, I’m struck by how much the behavior of President Trump resembles that of a guilty criminal defendant — and how the antics of his defenders resemble those of bad defense lawyers, stuck with the unenviable task of defending against an overwhelming criminal case.
I’ve been a prosecutor for over 22 years (I speak today in my personal capacity, not for my office), and I’ve encountered all kinds of defendants, defense lawyers, and defenses. I took cases to trial only after determining that I could prove the charges beyond a reasonable doubt. Virtually every prosecutor sees one of their defendants acquitted on occasion — even happened to legendary Charles Manson prosecutor Vincent Bugliosi once — but it’s rare. Typically, you don’t bring a case unless the evidence is strong.
That means defendants often have no real defense based on the facts and merits. So they and their lawyers try to make a simple, straightforward question seem very, very complicated. They attack the process. They scream that the prosecution is engaged in a witch hunt. They try to vilify law enforcement, whether it be the police or the prosecutors. The more unscrupulous defendants may intimidate witnesses, fabricate evidence, or tell falsehoods under oath.
But all guilty defendants who go to trial try to deny the reality in front of everyone’s face. They scream and yell and try to get the fact-finder upset, annoyed, distracted … anything but focused on the facts and evidence. And if they find jurors who are emotionally inclined to lean towards the defense, these tactics can work.
If you have followed impeachment, this should all sound familiar.
From the start of his presidency, Trump has tried to distract the public from facts that have emerged to show his corruption. He repeatedly takes to Twitter to scream that every investigation of his unscrupulous behavior is a witch hunt. Trump dangles pardons in front of witnesses against him. And when that fails, he tries to intimidate the witnesses, as when he threatened Michael Cohen’s father with a criminal investigation.
Trump told White House counsel Don McGahn to have Robert Mueller fired, and then tried to cover his tracks by ordering McGahn to prepare a false memorandum denying that he had received that order. Trump told Robert Mueller in written and sworn testimony that he had no recollection of discussing WikiLeaks with Roger Stone — a claim that is inconsistent with testimony offered at Stone’s trial. He has ordered everyone in the executive branch not to cooperate with the impeachment investigation, telling witnesses not just to invoke privilege, but not to show up at all — an action that would get most defendants prosecuted for witness dissuasion.
All the while, Trump avoids the facts. He evades and distracts. And his supporters fall in line and do the same.
As a perfect illustration of this evasion in action, I commend to you this clip from the recent Congressional hearing (watch the 70-second sequence from 12:11 to 13:26).
In the clip, a portion of the transcript of President Trump’s “perfect” call to Ukrainian President Volodymyr Zelensky is put up on the screen:
The other thing, there’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it… It sounds horrible to me.
The question was put to a staff lawyer from each side, one for the Republicans and one for the Democrats: does it appear to you from this transcript that President Trump was asking President Zelensky to have Ukrainian officials look into Joe Biden? It’s not a hard question to answer — if your only goal is to tell the truth. But look how hard that question is for the first “witness” in the clip, Republican Oversight Committee lawyer Stephen Castor:
This poor schlub is caught in a bind. It’s the central question in the entire impeachment, and the answer is screamingly obvious: yes, of course Trump was demanding an investigation of Joe Biden. But admitting that Trump made that request in that “perfect” call is damaging to Trump. That means it’s damaging to Republicans … because in today’s world, the concept “Republican” is synonymous with the concept “Trump,” and vice versa. (That’s a whole other problem. Don’t get me started.) And so, like a criminal defendant in a strong criminal case, this lawyer refuses to admit the clear and obvious truth. And when he is asked to admit it, he makes a face like this:
That’s a guy who knows better, but can’t say what he knows out loud. That’s the face of a guy who is sacrificing any reputation he once had for honesty and straightforward truth-telling, in favor of evasion and partisanship.
Sounds like a lot of Republican lawmakers I could name.
I mean no offense to my friends who are criminal defense attorneys when I say: this is what many defendants and criminal defense attorneys do when they have a really bad case. They squirt a lot of ink in the water like an octopus, hoping to escape while you’re blinded by the murky mess they left behind.
In the impeachment hearing, after Castor’s squirming, the same question is put to Daniel Goldman, the staff lawyer for the Democrats. He answers the question directly and without hesitation: “I don’t think there’s any other way to read the words on the page than to conclude that.”
To me, this exchange is emblematic of both sides’ approach to the entire impeachment process. The Democrats, for the most part, have focused on the facts. While there are certainly theatrics any time a Representative is on camera, the Democrats are, in the main, presenting a cogent and powerful case that the president of the United States, acting with corrupt intent, held up money that had been appropriated for Ukraine’s defense.
Trump held up the money to extract concessions that had nothing to do with the policy interests of the United States, and everything to do with his own personal interests: harming his political opponents and pursuing wild conspiracy theories. Meanwhile, the Republicans are dodging and weaving and grimacing and waving their arms around and screaming about pretty much everything under the sun, other than the facts of the case.
So those are the similarities between a criminal proceeding and this impeachment — between the president and his defenders, on one hand, and a guilty criminal defendant and his attorneys, on the other.
Here’s one of the main differences. Unlike criminal courts, which have mechanisms to address a defendant’s or witnesses’ evasion and obstruction, Congress seems utterly powerless to enforce anything. In a courtroom, arguments from defense counsel (or the prosecutor) that stray too far out of bounds can be stopped cold with a ruling from a judge, backed up by the power to hold the lawyer in contempt and jail him if need be.
As we saw with the Roger Stone trial, defendants who try to influence or threaten witnesses can have their bail revoked and might even be charged with witness intimidation. A prosecutor can force witnesses (other than the defendant, of course) to take the stand. If a witness is subpoenaed and doesn’t come to court, the witness can be arrested and brought to the witness stand in handcuffs. If the witness refuses to testify, he can be taken to county jail and held in custody until he changes his mind. That happens regularly, in trials all over the country.
But while ordering a witness into custody is done routinely by Los Angeles Superior Court judges, the concept seems utterly foreign to Congress, nominally one of the most powerful entities in this country. On paper, Congress has the power to arrest witnesses who disobey subpoenas, but members of Congress seem to be scared to use it. It might look bad, you see.
And so they let the president order everyone with firsthand knowledge to say nothing. And then Republicans go around screaming that the witnesses who are testifying lack firsthand knowledge.
This all creates a miserable combination that exemplifies how a legal proceeding should not work: fact-free, clownish antics of people whose position is legally untenable — who therefore scream and yell and distract — and a process that shows absolutely no ability to rein them in and force them to focus on the facts.
Look again at the embarrassed face of Stephen Castor. That is the face of the Republican party these days, thanks to Donald Trump: cringing, mincing, and anxious to defend the indefensible.
In other words: guilty.
