A Lawyer's Annoyance at Congressional Hearings

I am a lawyer and a trained litigator.  I have presented cases before Immigration Courts and the Virginia Circuit Courts.  And although I have watched congressional hearings numerous times before, they still annoy me.  The main reason is that these hearings are not designed so much to try to get to the truth, so much as to put on a dog and pony show in order to get as many sound bites as possible to make it to the news.  These impeachment inquiries are no exception.

Let's start with who presides over the hearings.  The Committee Chair is a member of the majority party in the House.  In this case, the Chair of the House Intelligence Committee is Adam Schiff.  But Schiff plays two roles.  Not only does he preside over the hearings, but he has a political agenda.  In this case, I personally happen to agree with that agenda,which is the impeachment and eventual removal of Donald Trump as President of the United States for his abuse of power.  Nonetheless, I do think it is very important that the person conducting the hearings present an image of disinterested fairness.  I cringe when Schiff opens up the hearings with his recitation of what he thinks the testimony will show.  I wish somehow that the hearings would be presided over by some kind of neutral parliamentarian, who enforces the rules, but does not express an opinion.  That would take away much of the argument that the Republicans are making, that Schiff is being unfair to them, when all he is doing is enforcing the rules.  It would also free Schiff to pursue his political agenda, without making it appear like a one-sided affair.

Moving on the opening statements of the Ranking Member, Devin Nunes, I've been finding it really hard not to throw something at the TV when he speaks.  Yes, I know that the Republicans' strategy is to distract everyone from the facts of the case.  When you get down to it, the memorandum of the July 25th phone call is just plain damning.  Right there, the President is asking for a favor right after the President of Ukraine refers to his country's desire for defensive assistance.  But all of this stuff on how we aren't going to hear from the whistleblower, or the arguments over Joe Biden and his son Hunter, they are just irrelevant to the issue at hand.  I keep thinking that if I ever tried to pull that kind of thing in a court of law, I'd have a really annoyed judge in front of me.  "Counsel, stick to the facts of this case," I'd likely be lectured.

And if that weren't enough, in the first few hearings, we saw Republicans interrupt with their so-called "point of order."  A point of order is supposed to be a complaint over a procedural issue.  But the Republicans are trying to use them again to distract from the witnesses scheduled for that day, and raise their inane conspiracy theories.  Point of order, we are not going to hear from the whistleblower and whether this personal may have a political agenda.  Point of order, you won't let us call Hunter Biden as a witness.  None of this has anything to do with the procedure, which was agreed to prior to the hearings.  They are all about trying to put the irrelevant conspiracy theories before the public.  And when Chairman Schiff recognizes this and cuts them off, they complain that he is not being fair.  Dog and pony show.

Now, I know these hearings are not run according to the Federal Rules of Evidence.  But for crying out loud, these questions are just the absolute worst.  Most of the time, these are just leading questions.  That is, the representative, or counsel, simply makes a statement and then asks the witness if he or she agrees with that statement.  A times, when the witness tries to answer in his or her own words, the questioner tries to interrupt the answer, and emphasize the questioner's point.  Not only that, there have been numerous times that the questioner has tried to characterize the witness' statement with hyperbole or exaggeration, using very loaded or judgmental words.  I tell you, if I did that in court, I would get a very strong rebuke from the judge.

More annoying than that are the times that the representative doesn't even ask a question.  Instead, he just takes his full time to make a political speech to please the President or his constituency.  Jim Jordan, who needs to be wearing a suit jacket during these hearings for goodness sake, is the worst at this.  I honestly don't understand why the Republicans put him in the Intelligence Committee specifically for these hearings, because his speeches are just not effective.

One tactic that came out more clearly during Lt. Colonel Vidman's testimony was this attempt by Republicans to unmask the whistleblower.  We all know, or should know, that this is illegal.  Like it or not, we need to protect the identity of a whistleblower for the very reasons that are unfolding here, before our eyes.  We want people to be able to come forward with information of potential wrong-doing, without fear of reprisals.  It's bad enough that the Army had announced its readiness to protect Lt. Colonel Vidman if necessary, because of all of the threats he has received.  Imagine if the name of the whistleblower had gotten out.  With all of those people who blindly support Trump, the whistleblower's life would most assuredly be in jeopardy.  And yet, we saw Devin Nunes time and again ask Vindman to identify with whom he spoke, with whom he met, and then criticize Vindman when he refuses to name some people either based on counsel's advice or Chairman Schiff's instructions.  Nunes even tried to argue that if Vindman was not asserting a Fifth Amendment right (which is the right against self-incrimination), he couldn't refuse to answer the question.

Look, while I want to be careful comparing this to a criminal action, many times criminal investigations or police action is spurred by unidentified informants.  If the investigations or police action independently uncover criminal activity, the identity and motivations of the informant are irrelevant.  What is relevant is the information that the investigation or police activity uncovered.  The same concept applies here.  Independent sources, such as the phone call memo and the witnesses who have testified so far, have corroborated what was reported in the whistleblower's complaint.  The only reason to pursue the identity of the whistleblower any further, is to intimidate that person and others who may come forward to report official wrongdoing.

Let's now talk about this theme we are hearing from Republicans that the witnesses cannot identify a specific crime, or have not said words like bribery, extortion or quid pro quo.  That is not the witnesses' role.  The witnesses are supposed to be there to present factual testimony.  Most of the witnesses are not lawyers.  It is not their role to conclude that the behavior they witnessed or about which they testified amounts to any specific crime.  That's a legal conclusion.  It's the job of the House to determine if the facts amount to an impeachable event, regardless of how one may label it.

As I watch Devin Nunes deliver his afternoon opening statement, I have to agree with his statement that these hearings are "not serious" or "sober," but not for the reasons he has stated.  Yes, it is a dog and pony show.  But so far, the most egregious abuses have been from the Republicans, who are doing all they can to prevent the disclosure of facts, and hijack the hearings for their political agenda of pleasing the President and their constituents.

By:  William J. Kovatch, Jr.

There Has to be a Better Way to Choose a President

Twelve people stood on stage last night, each trying to explain why they should be the next President of the United States. But after yet another three hours of back and forth between a dozen candidates, have we learned enough to choose a president?

We were in a similar situation four years ago. At that time, we were fairly certain that Hillary Clinton was going to be the Democratic nominee. Meanwhile, the Republican race, with its multitude of characters, seemed like a farce. No one really stood out. At the time, Donald Trump has a substantial following, but not a majority of Republican voters. He gained his support mostly do to name recognition, and turning the Republican debates into Jerry Springer-like events, that many found entertaining.

Over the next few months, as primaries and caucuses were held, the experienced politicians in the Republican field found that they could not put their egos aside, and Trump racked up the delegates, based on name recognition and his entertainment value. By time the dust settled, and the two major candidates selected, many in the electorate asked, is this the best we could do.

That questions haunts the process of selecting a president to this day. Is this the best we can do?  The process is easy to criticize. It takes too long. It’s tiring for potential voters. It’s superficial. It’s too expensive. It’s too divisive. It gives a small minority of people way too much power in influencing the outcome. And in the end, it is just way too possible for the choice of most American voters to be ignored, as the person losing the popular vote can still wind up being the president.

It’s no mystery why in many elections, voters complain that they are choosing the lesser of two evils.

Surely, we can do better.

While the Democrats were engaging in their debates here in the United States, a fascinating crisis of leadership unfolded in the United Kingdom.  A new Prime Minister, Boris Johnson, has failed to convince fellow members of Parliament that leaving the European Union without concluding a deal upon which both the U.K. and the E.U. could agree would be a satisfactory outcome of Brexit. As a result, Johnson lost vote after vote in Parliament, and even saw enough of his party’s members defect to the opposition to rob him of a majority in Parliament. There was discussion of holding an election to choose a new Parliament. What was astonishing was that no one in the United Kingdom even questioned that such an election could be completed in five weeks.

Five weeks to choose an entirely new government in the U.K.; meanwhile, the campaign to choose a new president in the United States persists for more than two years. How can that possibly be?  Do we really need all that time to make a reasoned decision?  Some might even argue that the U.S. presidential campaign is never-ending. Indeed, President Trump continued to hold political rallies almost immediately after being sworn into office.

Is this really the best we can do?

Richard Nixon once said of running for president, that first one had to run to the right as far as he could to court Republican voters to nominate him. Then, during the general election, that same person had to run to the center as fast as he could, to convince independent voters to choose him over his Democratic rival.

It’s no wonder why American politicians are accused of flip-flopping.

To fix the system would go beyond tweaking what the United States already has. Indeed, simply abolishing the Electoral College would not be enough. The problem with the U.S. system includes our primary system, which takes too long, gives too much influence to two states with small populations, entrenches the two party system, and leaves a large number of voters without a voice in nominating the presidential candidates.

The first big contest of the nomination season is the Iowa Caucuses.  Iowa represents less than one percent of the total U.S. population. Yet, presidential candidates flock to Iowa early every four years to court the state’s voters. Especially when a candidate trails in the national polls, if that candidate can somehow convince Iowa voters to choose him or her, that candidate can experience a huge burst in popularity and news coverage. At times, a win in Iowa can create enough momentum to propel a candidate to the nomination.

Similarly, the first primary election takes place in New Hampshire, where the population is roughly one-third that of Iowa. An victory in the first election of the primary season can be as equally powerful, especially for a dark horse candidate.

But why do states with such small populations have such a big influence over the major parties’ nomination?  The short answer is tradition. Other states have tried to schedule their contests before Iowa and New Hampshire. But each time, the major parties threaten to discipline those states if they do so. For example, the major parties have threatened not to recognize any delegates selected in contests that occur before Iowa and New Hampshire.

The argument is that small states would otherwise get lost in the shuffle, if states with larger populations, such as California and Florida, have all of the influence over the nominations. But why is that a good thing?  Some may even argue that giving states with lower populations so much influence over the presidential nominations goes against the democratic principle of majority rule.

Moreover, the current nomination system is built around the assumption of two major parties: Democrats and Republicans. Democrats, of course, tend to lean left, or liberal, in their political views, while Republicans lean right, or conservative.  But in the last few decades, the number of U.S. voters who identify themselves as either Democrats or Republicans has fallen. A 2017 Gallup poll showed 31% of Americans identified themselves as Democrats, 24% as Republicans, and 42% as independent of any political party. Confining the nomination process to just the Democratic and Republican parties means an extremely large percentage of the U.S. electorate has no say in that process.  Moreover, because each party has a definite leaning on the political spectrum, this means the more extreme voters in each party have a disproportionate say in who gets nominated. The nominees, then, tend to be more liberal or more conservative than the population at large. Centrist candidates are at a big disadvantage in the current system, even though most American voters tend to be more moderate than liberal or conservative.

It’s no wonder, then, why there is often wide-spread disappointment in the two major nominees for president.

Those who may favor third party candidates get ridiculed. A nominee from the Libertarian or Green Party has no chance to win. So why waste your vote on a third party the argument goes. And so, independent voters, who make up the largest block of voters, are the ones who have to compromise the most when choosing between the two major parties’ nominees.

Why does it have to be like this?

Of course, the final blow to democratic principles occurs when in the end, the choice of most U.S. voters is ignored, and the loser winds of becoming the president. This is the result of the Electoral College. To summarize, the reality of the presidential election is that there are 51 separate elections, one in each state and one in the District of Columbia. Each state is given an amount of electors equal to the number of senators and representatives that states send to Congress, with the District of Columbia receiving three. The result of this system is to give voters in states with smaller populations a greater say in who becomes the president. Thus, the loser of the popular vote can still become president provided he or she can win in enough states. This has happened five times in the history of the United States. But the last two times have happened within 16 years of each other.  With Republicans having appeal to many of those smaller states, they have something of an advantage in the Electoral College system. Therefore, what was once thought of as a rare oddity of the American system threatens to become the norm in elections to come.

In sum, for a country that prides itself on being a democratic republic, its method of choosing a chief executive goes against many democratic principles.

In recent years, there has been a growing cry to eliminate the Electoral College. Some states have passed laws to give their states’ electors to whomever wins the national popular vote. The problem with concentrating on the Electoral College is that it fails to address all of the issues with the entire process.

A far more satisfying approach is to do away with the entire nomination system and Electoral College. The United States should adopt a system much like Louisiana’s non-partisan primary. In such a system, two elections are held. The first is a primary, in which every candidate runs, regardless of party affiliation. If somebody receives a majority (greater than 50%) of the vote, then we have our winner and the second election is cancelled. But if no one wins a majority in the primary, then the top two candidates face each other in the general election, held about one month later. Several countries, such as France, employ a system like this.

Such a system cuts down on the length of the presidential campaign, thus ending the non-stop campaigning we have today. Because it is a national election, no one region would have greater influence over the others. Because it is non-partisan, centrists and third party candidates have a greater chance of winning, meaning voters can freely vote their conscience, instead of choosing the lesser of two evils. It is a more democratic system, and likely to result in candidates that reflect the views of a larger proportion of the U.S. population.

By: William J. Kovatch, Jr.

For Those Expecting an "Electoral College Miracle," You've been Well Played

"It's a Christmas miracle!"  If you're familiar with American TV, you've no doubt heard this phrase numerous times in your life. Typically in the plots around Christmas time, something has got the protagonist down. Maybe it is a loss of faith or hope. But by the end of the show, something unexpected and improbable happens that lifts everyone's spirits, and restores hope to the protagonist. 

Judging from my social media feeds, many of my liberal friends expected the Electoral College to deliver such a Christmas miracle. 

It started with the so-called "Hamilton Electors."  Several news articles proclaimed that there were Electors ready to cast a ballot for some reasonable candidate other than Donald Trump. I remember at least one of my friends on Facebook expressing excitement in November that this rumor was an actual thing, as an article reached the mainstream press. 

Then there was the call for intelligence briefings for Electors in the wake of accusations of hacking by the Russians from the CIA.  Electors have a right to know if a foreign power influenced our electoral system, was the rallying cry. Again, many of my liberal friends in social media expressed real hope that the Electoral College would "do the right thing."

And then December 19th, the day appointed for the Electors to meet in their respective state capitals, came and Trump received enough votes to be elected President of the United States. Indeed, while those wishing for an "Electoral College miracle" needed more than thirty Electors pledged to Trump to defect, only two actually did. 

And thus, many of my liberal friends took to social media and expressed disappointment; some using the harshest of profanity over the result. 

The fact is that they, along with anyone else who expected a more dramatic result, were played. They were played by a propaganda gambit from their very own party, the Democrats, assisted by willing accomplices in the press. 

The fact is that stories of possible Electoral College defectors were drummed up by Democratic political operatives. The press then reported the stories in a way that hid the political leanings of the perpetrators as well their true intentions. 

Let's first consider the so-called "Hamilton Electors."  These were Electors supposedly ready to vote for any reasonable candidate other than Trump. News stories trumpeted the fact that there had been "faithless Electors" in the past; Electors who voted for someone other than the candidate who vote the popular vote in their particular state. There were some news stories that announced that numerous Electors were taking advantage of legal advice offered for free from a certain law firm concerning the legal consequences of breaking a pledge to vote for the winner of their state's popular vote. Surely these were all indications of a potential Electoral College revolt. 

The problem was that the press failed to report that these potential faithless Electors were all Democrats pledged to vote for Hillary Clinton. 

In the end, there were a total of seven faithless Electors; the most of any presidential election. They voted for candidates like Collin Powell, John Kasich, Ron Paul, Bernie Sanders and even Faith Spotted Eagle, an American Indian tribal leader opposed to the Dakota Pipeline. But only two of these Electors were Republicans pledged to vote for Trump. Five were Democrats pledged to vote for Clinton.  This means that the so-called "Hamilton Electors" of  which the press trumpeted were very likely Democrats pledged to vote for Clinton all along. There never was any pending revolt of Republican Electors ready to "dump Trump."

Concerning the demand for an intelligence briefing over the alleged Russian hacking, media reporting was misleading in several respects. First, the press did its best to bury the fact that the push came from Democratic Electors, not Republicans. It would take a savvy reader some effort to discover that the originator of this demand was Christine Pelosi, Nancy Pelosi's daughter. Indeed, of the fifty five Electors demanding the briefing, only one was a Republican.  Hiding the affiliation of the Electors demanding the briefing gave the impression that Electors were ready to bolt from voting Trump. In reality, there was never really any danger in that happening. 

Second, the press willingly reported the so-called Russian hacking scandal in such a way as to exaggerate what the factual allegations were. The press used descriptions such as "hacking," a "foreign power" attempting to "influence the election," and the "integrity" of the "electoral system."

In fact, there has never been any allegation that the Russians ever attempted to hack into any of the state electoral boards and alter any vote count. But, by using such vague but inflammatory descriptors, the press was more than willing to have the general public conclude that the alleged hacking put the vote count in jeopardy. 

What has been alleged is that the Russians hacked into the email systems of both the Democratic and Republican National Committees to steal emails. It is alleged that the Russians leaked embarrassing emails about Clinton and her staff through Wikileaks. 

Thus the so-called influence was nothing more than an attempt to have an effect on the opinion of voters. Given the myriad of factors involved in the presidential campaign, it is highly doubtful that the release of embarrassing email communications had much of an effect on changing voters' minds. Quite frankly, the news emanating from the Wikileaks releases during the campaign was that there was nothing really ground-breaking from the emails. In the end, the email leaks were more hype than substance. 

Surely the news of the hacking should result in an effort to bring those responsible to justice for violating criminal laws. But, it is hardly a reason to overturn a presidential election. 

In fact, the news of how easily the Russians hacked into both the DNC and RNC email systems should emphasize why it was such a scandal that a sitting Secretary of State used an unsecured private server to communicate classified information. It placed such information at a high risk of being intercepted by foreign governments. 

So what was the purpose of these stories which dominated the news prior to the Electoral College vote?  First, there was a hope that more than thirty Republican Electors would be influenced to switch their votes and deny Trump an Electoral College victory. But that hope was misplaced. The parties choose the slate of Electors. They are chosen because of their strong loyalty to the political party. They are not chosen because they tend to be independent thinkers. 

Even if the campaign to influence the Electors succeeded, the race would simply be thrown to the House of Representatives, voting by state delegations, to decide. With Republicans in control of the House, the end result would likely have still been a Trump victory. 

The more important reason for the campaign to influence the Electoral College was to create a sense of illegitimacy of a Trump presidency. Trump didn't win the popular vote. He only won because of the disproportionate power given to small states by the Electoral College. Now the Electoral College failed to receive intelligence briefings of Russian interference and influence. And a record number of Electors were faithless Electors. Therefore, the stage is set to rationalize aggressive residence by the Democrats of the Trump agenda. 

What is comes down to is the fact that the public was played. They were played by the Democrats eager to paint the Trump presidency as illegitimate. They were played by a press, already biased against Trump, and willing to carry the torch for the Democratic Party. 

By: William J. Kovatch, Jr.