This essay first appeared in the February 12, 2021 Epoch Times.
The videos introduced into the Trump impeachment trial were utterly inappropriate. They should have been vigorously objected to, and excluded by the chair.
An impeachment trial takes place in a legislative chamber and not a courtroom. The Senate has far more procedural flexibility than a judge does. Still, the Constitution tells us that it is a trial. That implies standards more rigorous than in an ordinary legislative hearing, and certainly different from those at a film festival.
The doctored anti-Trump videos did not meet any reasonable standard of admissibility. Rather, they constituted the latest example of the questionable tactics we have learned to expect from the lead impeachment manager, Rep. Jamie Raskin (D-Md.). That’s the guy who has reminded us at least twice that he was a “professor of constitutional law.”
Other examples of Raskin’s dubious behavior include arguably misrepresenting a key piece of Founding Era impeachment evidence, and breaching professional ethics by direct contact with another lawyer’s client in an adversarial proceeding (the insulting letter that “invited” Trump to testify).
Raskin’s team also has carefully avoided submitting any proof of one of its central claims: that Trump repeatedly lied about the presidential election results. In an impeachment trial, the prosecution has the burden of proving its accusations by “clear and convincing evidence.” Yet the prosecution has introduced almost no evidence tending to show either (1) that the reported election returns were accurate, or (2) that Trump had no reason to believe they were corrupt. Instead, the prosecution has regaled the Senate with abusive oratory and slickly edited videos.
Here are some reasons those videos should have been excluded:
First, they are hearsay. That means there’s no way to cross-examine them. When images are introduced into a trial, one of two things must happen. Either the parties stipulate to their accuracy or their proponent produces a sponsoring witness who can testify under oath that they’re accurate. Often the witness must explain how and under what circumstances the images were made. That person can then be cross-examined, so the judge can assess the usefulness of the proffered evidence.
These videos were neither submitted to the defense for a stipulation nor supported by sworn testimony.
Second, ethical practice would have been to provide the films to the defense team in advance. Springing them on the day of trial is the very definition of what the law calls “unfair surprise.” Admittedly, this was consistent with other unfair aspects of this “trial.” For example, the Senate didn’t even inform the defense attorneys what the rules would be until the very eve of the hearing.
Third, once the videos had been provided to the defense attorneys, they should have been given time to review them. In fact, the defense should have been given several weeks, because the images were cobbled together from disconnected events extending over several years. Different witnesses might have to testify to the accuracy of each segment.
Fourth, at least one of Raskin’s video-related representations has been long debunked: his claim that Trump praised Neo-Nazis and other extremists in a Charlottesville, Virginia, demonstration. Actually, Trump praised the many law-abiding people present on both sides, not the Neo-Nazis and their ilk.
Fifth: When trying to prove a person guilty of a bad act, it generally is not admissible to refer to allegations of other, disconnected acts. Additional bad behavior may be considered in sentencing, but not in initial determinations of guilt.
Finally: The videos are not particularly relevant to the charge in the Article of Impeachment. That charge is that Trump incited violence against the government on Jan. 6, 2021:
“Shortly before the Joint Session commenced [on Jan. 6] President Trump addressed a crowd at the Ellipse in Washington, D.C. There, he reiterated false claims that ‘we won this election, and we won it by a landslide’. He also willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action …”
The factual problems with that charge are many: Trump’s rhetoric was well within the political norm, the violence was planned by unrelated parties long before he spoke, and Trump explicitly told his followers to act “peaceably.” As, in fact, 90+ percent of them did.
But Raskin’s videos shift ground from what Trump said on Jan. 6 to what he allegedly said and did over a period of years. It’s hard to resist the conclusion that the real purpose is not to convict the former president, but to beat him up politically.
Of course, Raskin has said nothing about contemporary political standards or the wider context. Specifically, he ignored recent behavior of Democratic politicians and their supporters. In 2018, Sen. Elizabeth Warren (D-Mass.)—who now sits in judgment on Trump—stirred up a mob that had invaded the Hart Senate Building. Politicos such as Rep. Maxine Waters (D-Calif.)—who voted for Trump’s impeachment—engage in violent rhetoric as a matter of course. Three years ago leftists invaded the U.S. Capitol and tried to smash down the doors of the Supreme Court. Ten years ago they invaded and occupied the Wisconsin state capitol.
And just last year, Democrat office holders throughout the country willfully failed to staunch, and sometimes encouraged, the massive BLM-Antifa riots. By any measure, those riots outstripped the Jan. 6 Capitol incursion by many orders of magnitude.
But of course, such evidence just wouldn’t be relevant, would it?