Trump Will Likely be Acquitted Because the way the United States Chooses the Senate Goes against Democratic Principles.

No one seriously disputes the facts.  President Trump asked Ukrainian President Zelensky to announce that he had started two investigations that would help Trump politically.  When he did so, he communicated to Ukraine that he would withhold almost $400 million in military aid approved by Congress until Ukraine complied.  The aid was only released to Ukraine once the story broke in the news that a whistleblower had filed a complaint with the Inspector General of the Intelligence Community, detailing this scheme by the President.  This has been confirmed by the Ambassador to Europe under oath.  It has been confirmed by Trump's former National Security Adviser in a book.

No one with any degree of intelligence can dispute that using the Office of the President to extract a personal favor from a foreign government is a crime.  Furthermore, no one who is being honest can dispute that seeking foreign intervention in a U.S. presidential election is the exact type of behavior that the Founding Fathers feared when it crafted the clauses of the Constitution that address the impeachment and removal of the President from office.

Yet, we stand on the precipice of the U.S. Senate voting to acquit President Trump after holding a trial where no witnesses were called, and no evidence presented.  Why?  Because the Senate is controlled by the Republican Party, and President Trump is a Republican.  The Republicans of the Senate are banding together to protect a criminal from being kicked out of office, solely to ensure that they protect their party's power.

And why does the Republican Party hold so much power in the U.S. Government?  The fact is more people consider themselves Democrats than Republicans in the United States.  Indeed, more people consider themselves independent of any political party than Republicans or Democrats.  But there are aspects of the U.S. Government that are not truly democratic in nature.  That is, there are features of the U.S. Government that are meant to thwart the will of the majority.  The Republicans have become experts at manipulating those features.

First, let's consider the House of Representatives.  Prior to 2018, the Republicans had held the House for eight straight years.  The reason was not because the Republicans were the larger political party.  As stated above, it was not.  The reason is due to how congressional districts were made up.  Republicans worked hard to gain control of as many state legislatures as they could.  Then, once the United States held a census, it became time for the states to redraw their districts.  Working like putting together a giant jigsaw puzzle, Republican state lawmakers found a way to draw those districts so that Republicans had the advantage.  This is called gerrymandering. 

Next, the Republicans took advantage of the way that the U.S. President is chosen.  Pursuant to the Constitution, the President is not directly elected by the people.  Instead, the people choose electors to meet in a body called the electoral college to choose the President.  Originally, the electoral college was meant to be a deliberative body, that would consider and debate over a number of candidates before choosing who they thought would best run the country.  However, the electoral college devolved into a proxy of the state's popular vote.  Electors were not chosen individually.  Rather, the political parties nominated their presidential candidates, and in most states whichever candidate won the state's popular vote won a full slate of that state's electors.

The problem lay in the fact that the electors were not distributed in direct proportion to the number of citizens in the several states.  Rather, each state received the same number of electors as Representatives in the House plus two representing the number of Senators each state has.  The additional two electors may create a small deviation from having the electoral college be truly proportional to the distribution of the population in the United States.  But in practice, states with smaller populations had an advantage.  Their voters had greater weight.  Where you have a number of these states voting for the same presidential candidate, they can beat out the states with larger populations, meaning a candidate who loses the popular vote can win the presidency based on the electoral college.  Prior to the 21st Century, this had happened in U.S. history.  But it was a rare occurrence.  Now, it has happened twice in the last five elections.  Moreover, there is a danger it will continue to happen in the near future with frequency.

Finally, there is the make-up of the Senate itself.  The Senate is the result of a compromise of the Founding Fathers.   States with smaller populations were afraid of loosing power to the large population states in the new government.  The solution was to create a bicameral legislature, one where the representatives were distributed based on population, and one where states were represented equally as states.  That second house of the legislature was the Senate.  Each state is guaranteed two Senators, no matter the state's population.

As stated, the reasoning was to represent the states as states.  Originally, state legislatures chose the Senators from their states.  It was only through the progressive movement of the 19th Century that the election of Senators by the people of the state became the law.

Nonetheless, this means that there is one body of Congress where states has power disproportionate to their population.  That is, states with fewer people living in it has the same power in the Senate as states with large populations.  To put it in tangible terms, a Senator from South Dakota represents about 429,000 voters, while a Senator from California represents 19 million voters.  that means that in the Senate, South Dakota voters possess about 45 times the voting power than California voters.  Thus, representation in the Senate works against democratic principles, such as the equality of all citizens.  In practice, South Dakotans are more equal than Californians.

As it turns out, voters who oppose Donald Trump tend to live in densely populated states such as California and New York.  While sparsely populated states tend to be populated by Trump supporters.  National polls show U.S. voters overwhelmingly favoring the Senate trial of President Trump to include witnesses.  National polls also show a majority of U.S. voters supporting the removal of the President.  But, due to the distribution of U.S. voters, the Senate is in control of a political party that will do anything to protect its leader.

So, it is very likely that the Senate trial will turn out to be a sham of justice, and a very guilty President will be acquitted and permitted not only to finish out his term, but run for re-election.  This is despite poll numbers showing the U.S. population supporting the opposite results.  President Trump will likely remain in office, but only because of the features of the U.S. Government that go against the principles of real democracy.

By:  William J. Kovatch, Jr.

Legally, Hearsay Can Support a Criminal Investgation

Ever since the jaw dropping details of the whistleblower complaint was released publicly, President Trump and his friends have been trying desperately to attack the whistleblower’s credibility. Through that complaint, the whistleblower detailed a shakedown perpetrated by Trump through his private lawyer, Rudolph Giuliani, of the Ukrainian Government, going back to a time before Volodymyr Zelensky was elected President of Ukraine.  Trump and Giuliani have been trying to get Ukraine to provide dirt to undermine the conclusion that Russia interfered in the 2016 election, as reached by the US intelligence community, the FBI and Robert Mueller’s investigation.  Trump and Giuliani also wanted Ukraine to provide information to damage the reputation of Trump’s political rival, Joe Biden. One argument Trump has used is that the whistleblower only had “second class” information.

Of course, Trump meant that the whistleblower had second-hand knowledge, meaning the whistleblower did not listen to the telephone call with Zelensky himself.  Rather, the whistleblower collected information concerning Giuliani’s pressure on Ukrainian officials from other people. Essentially, Trump’s friends, such as Republican Senator Lindsey Graham, claim that Trump cannot be impeached based on “hearsay.”  Hearsay, as every lawyer knows, is when a witness tries to testify regarding something the witness heard another person say. Although the law of hearsay is complex, with some exceptions hearsay is inadmissible in a trial and cannot support a criminal conviction.

Setting aside the fact that impeachment is a political process, and not a legal criminal proceeding, what Trump, and his friends such as Graham, forget is that Trump has not been impeached yet. Speaker of the House, Nancy Pelosi, has only announced that the House has opened an impeachment inquiry. This means that the House will formally begin acquiring evidence and holding hearings for the purpose of determining whether to impeach Trump.  That is, the House will commence an investigation into Trump’s actions.

This is where the hearsay defense falls apart. Even if impeachment were a true criminal proceeding, the use of hearsay would not invalidate the commencement of an investigation. For example, pursuant to US law, hearsay can be used to issue a search warrant.  A warrant can be issued upon a showing of probable cause.  Hearsay can establish probable cause if it has indicia of reliability. Indicia of reliability can include information about the person’s background, and details that can be corroborated. Here

Concerning the whistleblower's background, the New York Times claims that he is a CIA Analyst who was attached to the White House.  This would mean that the whistleblower was trained in collecting facts, and providing an analysis of what those facts mean.  He would have training in foreign affairs.  He would also have access to people who work with the President on a daily basis, who would have direct first-hand knowledge of the events and processes described,

Additionally, the details concerning the telephone call and the pressure placed on Ukraine have been, and are continuing to be, corroborated. First, Trump acknowledged that he placed pressure on Ukrainian President Volodymyr Zelensky concerning Biden.  Trump himself said to reporters, “Even the Ukrainian government put out a statement that that was a perfect call, there was no pressure put on them whatsoever. But there was pressure put on with respect to Joe Biden. What Joe Biden did for his son, that’s something they should be looking at.”  Thus, even before the White House released the memorandum of the telephone call, Trump admitted the substance of the call, and that his aim was to compel Zelensky to provide information on Biden.

Then, the release of the memorandum of the telephone conversation itself confirmed details the whistleblower disclosed in his complaint.  This included Trump referring to his view that while the United States has been good to Ukraine, the relationship has not always been reciprocal.  Indeed, as recorded in the memorandum, Trump specifically asked Zelensky for a favor, which appeared to be connected to Zelensky's expressed desire to buy more Javelin missiles.  This "favor" actually turned out to be two.  trump wanted Ukraine to investigate whether the server of the Democratic National Committe taht had been hacked was in Ukraine.  He also wanted information on Joe Biden and his son, Hunter.  The whistleblower mentioned both of these in his complaint.

Moreover, Giuliani himself has been corroborating the allegation that he has been acting as the go between for Trump to Ukrainian officials, and that this has been going on for some time.  Giuliani has been making appearances on television confirming that he traveled around the world to meet with Ukrainian officials and to talk about Joe Biden.

With this much corroboration, the whistleblower’s allegations would almost certainly be ruled to be supported by indicia of reliability and thus support a finding of probable cause.

Hearsay can be used to identify potential witnesses. In this instance, the House Judiciary Committee will hold hearings. It is perfectly acceptable to use the information provided by the whistleblower to identify people working in the White House from whom the Committee will want to hear. In fact, Judiciary Committee Chair Adam Schiff announced that the committee is working with the whistleblower's lawyers to have the whistleblower testify before the committee.  When testifying before the committee, the whistleblower can identify with whom he spoke concerning his allegations, and how he knows about the process the White House used to try to cover up the phone call.  This will help the committee identify witnesses with first-hand knowledge of the allegations, and what other evidence the committee will need to subpoena.  Over the next few months, we can expect there to be ongoing testimony by White House staff, Rudy Giuliani, and members of the intelligence community concerning the pressure Trump placed on Ukraine.

It is important to keep in mind that impeachment itself is not the end process. That is, a president is not removed from office simply because the House votes in favor of impeachment. If comparisons to criminal law are to be maintained, impeachment is more like an indictment. It represents the House concluding that there are reasons why a majority of House members believe the president has abused his office and deserves to be removed. Whether the president is actually removed is determined by the Senate, which holds a trial over which the Chief Justice of the Supreme Court presides. It will be up to the Senate to determine its own rules on how the trial proceeds, just as the House decides the rules concerning impeachment.

At this time, the United States is just at the beginning of an impeachment inquiry. To say that the whistleblower’s allegations, as outlined in his complaint, cannot support the opening of an investigation is just plain wrong. These allegations, which already have corroborating evidence, can and should serve the basis of identifying avenues the Judiciary Committee should pursue in collecting further evidence to permit the House to decide whether ultimately to impeach President Trump.

By: William J. Kovatch, Jr.