Politico has the most expansive article I have seen to this point on the Democrats strategy going into the true impeachment hearings, and ultimate prosecution.
The plan makes intuitive sense, and is the product of some of the best prosecutors on Earth putting their heads together and strategizing. According to the story, they have seemingly made a decision. I am nowhere near as accomplished or as experienced as the people doing the work. But I do have some real concern about their plan.
The strategy is “thin to win.”
Just about any criminal case forces the prosecutors to pick a strategy in presenting the case to the jury. Does one go elegant and simple, with just a couple charges and a direct line of evidence? Or do they throw the entire kitchen sink at the defendant, unleashing just mountains of “bad shit” they have on the guy, to make sure the jury knows that this is one bad bad dude, and they need to take care of him. Both carry some risk, and – obviously, prosecutors make the decision based upon the type of case they have, and type of jurors contemplated.
In this matter, prosecutors working with the House are going with the elegant, simple, and most damning evidence, impossible to ignore.
But experienced litigators say it’s much easier to explain why it was an abuse of power for Trump to ask a foreign leader to dig up dirt on Joe Biden, which is why a narrow approach might work best.
Go on, we’re listening:
“The biggest insight I’ve had in trying complex cases is that you want to be the one telling the simple story, and you want the other side to be telling the complicated story,” said Renato Mariotti, a former federal prosecutor in the Northern District of Illinois. “Whichever side telling the simple story wins, and it’s simply because of the way the human brain works.”
Okay, butttttt. Let us hear from someone who might have a bit different thought.
In the case of impeachment, noted Joyce Vance, a former U.S. attorney for the Northern District of Alabama, investigators don’t have to prove specific elements of a crime beyond a reasonable doubt—only that the facts are “compelling, and compelling to those who may be supporters of the president.”
Fair use doctrine generally means no more than 3 paragraphs used from any story, so I’ll leave it there. Now, permit me to indulge a little and give my take on this.
First, they discuss human nature. As a prosecutor, it is also human nature to look through the mountains and mountains of evidence you have on a person making that person utterly despicable, and put it all in front and center. But in this matter, prosecutors are counseling against that aspect of human nature. They are certainly right with respect to a lot of criminal cases.
Every closing argument I have ever made in defense of people, I use the analogy of a “bridge.” Everyone starts on the “innocent” side of the bridge. We presume people are innocent. In order to convict anyone, the prosecutor must escort the person from the innocent side to the guilty side, by way of the bridge. The “bridge” is made up of each element defining a crime. There are usually anywhere from 3-6 “elements,” such as “1. When a person intentionally, 2. takes something of value, 3. not belonging to him, 4. by threat of force, from another ..” (I made that up, just to show you how “elements” of our bridge are set out.)
I then tell the jury that each “element” must be proven beyond a reasonable doubt. If the jury has any reasonable doubt about any “one element” (e.g. was there a “threat of force”), the bridge collapses, everything falls through, no one ever made it across to “guilty land.” Of course, when defending a person, you make it sound near impossible to prove “each element” beyond a reasonable doubt.
It can work. But the most effective argument against it is a prosecutor with a bare bones case, with very simple evidence, stating “He went into the bank armed with a note (intent), passed a note asking for cash (thing of value), showed the gun (threat), and carried the cash outside the bank (someone else’s stuff). Each element is proven by very simple evidence …”
See? The strategy is not to prove that the guy is an evil waste of a human being, even if they have evidence that the guy has a meth problem and he used money to buy meth and left his child hungry …, all the stuff that makes a person hate a guy, they leave all that out, because they’re simply walking right over your bridge.
So it makes intuitive sense to a lot of these experienced prosecutors.
The only problem is that the jury in this matter is the senate, and they are personally invested in whether Trump wins or loses. And they are not expecting proof “beyond a reasonable doubt,” as to anything, so much as they want to know whether the president simply can’t serve anymore, given what happened.
That makes me really wonder about their strategy. Republicans have already signaled that they’re simply not going to care if the Democrats “prove” that Trump abused his power. Unlike jurors, they can say: “Yeah, wow, dumb thing to do. But, voters can decide in November.”
Moreover, people against Trump now, convinced Trump is bad now, are already going to vote to remove Trump.
So, one has to decide what the goal is here. Is the goal to hang an all-but-irrefutable crime for history? Or is the goal “removal,” either through impeachment or election?
Well, for me, the goal is removal, and much as I’d like for it to be in three weeks, I will settle for November of next year, if those’re my choices.
“Removal” isn’t a criminal charge, it is a political movement. For “removal,” one pretty well has to rely upon enough people agreeing Trump is one bad bad meth-buying bank robber. In a political case, there is also some value in pure “shock-factor,” having something explosive just arise, and pile that right on top. I continue to believe that someone is going to prove, at some point, hopefully before the next election, that Trump owes money to Russian oligarchs under Putin’s control, and even Republican senators will, at that point, have to confront removing him.
Thus, from my point of view, I would sure want to throw that kitchen sink, to use every shred of evidence that I have to make it as certain as I can make it, that all of this is related to Putin (as we are increasingly assured it is). One doesn’t get there with the “thin to win” strategy. I want each Republican extremely nervous, knowing that the kitchen sink evidence makes it near impossible to believe Russia’s not behind it, and they are going to look both stupid, and very dirty, if and when that evidence comes out.
But I don’t have these people’s experience. They are there on Capitol Hill, looking at the evidence and speaking to witnesses. I am writing from the sun room, six miles outside of the nearest town, population 2500, in Mississippi. So there’s that.
You only get one shot at this guy with impeachment. If they lose this round, and Trump is president in the future, and evidence as to “Putin’s ownership” of Trump arises, it’s going to have to be Republican-led impeachment, because one just doesn’t get a second shot, at least in my opinion.
I would put it all out there. As things stand right now, there’s no indication that 21 Republican Senators are voting to remove Trump.
firstname.lastname@example.org and on Twitter @MiciakZoom