I am not a lawyer, and I’m not even really a Trump defender. I do, though, defend the Trump Voter. In light of the IG report, we are 2/3 of the to the utter, complete vindication of the Trump Voter. Durham will bring it home with the results of his investigation… But I have some questions and observations…
Where did you get the idea that “conservatives” oppose the exclusionary rule? I can see politicians on the right otherwise trying use it to differentiate themselves from an opponent on the left, but to ascribe opposition to the exclusionary rule to conservatism as a philosophy is simply a lazy caricature of conservatism.
And then this:
“Impeachment is not a criminal proceeding, but Mr. Trump’s defenders have so far been limited to attacks on the process because they have been unable to attack the facts. I understand we are living in the time of post-truth politics, but don’t we need to have reliable facts undergirding the debate over whether a POTUS should be impeached and, if so, should he be removed from office?”
Have you not put the cart before the horse here? In a civil case if no facts are in dispute the plaintiff can petition for summary judgment as to how the law applies to those facts. But when facts are in dispute, you have a trial — and the “process” of the trial is necessary to the “finding” of the facts. Are you seriously arguing there are no facts in dispute here?
Let’s take the Mueller Report as an example. The problem goes much deeper than the exclusionary rule; it drives all the way down to whether the investigation had a valid predicate. Horowitz seemed to believe it did, but Durham went out of his way to point out that facts he is uncovering may suggest otherwise. If the investigation had no valid predicate, then what is there for Trump to obstruct?
Will you point to the indictments? Let’s see, there were two: Russia’s hacking of the DNC server; and the Russian troll farm “defrauding the United States.”
As to the first (and this goes to my profession in cyber security and work as an expert witness in the field), the FBI has never had, nor do they have today, custody of the “original specimen(s)” required to authenticate the forensic image(s) supposedly showing evidence of the hack. Based on federal rules of evidence and long standing precedent, this is simply fatal. I read the entire indictment and from my perspective as an expert witness/consultant (usually at the defense table), there is not one single triable fact alleged in the indictment. The matter would frankly not make it past the preliminary hearing!
And then there was the troll farm which the Mueller report characterized as working in tandem with the Russian state. Too bad the troll farm owners showed up to defend themselves and as a result we learn not one single piece of admissible evidence exists to support that claim — to the point where the judge forbade Mueller from publicly stating anything of the sort, even though it was right there in his report! This, more than anything else, was why his testimony was such a disaster.
And these are the two poles of the circus tent that was the Mueller investigation — started by the felonious leaking of memos which were classified before the ink even dried on the paper by Jim Comey. (Again, in my field we deal with classified information daily. Any notes taken of a conversation between the President and the FBI director will be considered classified at least SECRET until reviewed and determined to be otherwise. Memos are not classified because they are marked; they are marked because they are classified.)
So please explain where and how you have found “reliable facts undergirding the debate.”
So are we now going to appeal to the Ukraine call? You state:
“The latest fallback position is that the whistleblower who reported the Ukraine affair is anonymous. Under the Whistleblower Act, a whistleblower is always anonymous. While anonymity is supposed to protect the whistleblower, it has not stopped Mr. Trump from trashing the reputation of the unknown whistleblower or from threatening retaliation.”
I have to train on the Whistleblower Act once each year to keep my clearance, and the Whistleblower Act covers reporting misconduct in government agencies — but expressly excludes communicating classified information to Congress! Now recall, and you can confirm this by looking up the PDF of the transcript, the document is originally marked TOP SECRET//ORCON (originator controlled). This is standard procedure for a transcript of calls between the President and other heads of state. Again, these things are treated as classified before the ink is even dry, and then if necessary a review is done to determine whether they can be declassified. In this case Trump ordered the declassification of the transcript AFTER the so-called whistleblower communicated the information to Congress.
The short and sweet is the so-called whistleblower broke the law!
But let’s set that rather inconvenient fact aside. If the charge is Trump extorted help for personal political motives, then do we not have to have “fact witnesses” who can speak from first-hand conversations as to Trump’s state of mind? We have heard from one and only one such “fact witness” (Sondman) and his testimony as to such a conversation is exculpatory! Everyone else who testified spoke to their opinions, not to facts. Please tell me we have not dispensed with the distinction.
And if the charge is Trump “obstructed Congress”? By what, asserting their separate and equal powers and requiring Congress go to court to compel compliance?
So I’ll ask again: Where and how are you finding your “reliable facts undergirding the debate?”