Many people who have no actual knowledge of how a trial comes to pass and the steps necessary leading up to that trial. Yet they are screaming “Trials have witnesses!” Even Adam Schiff and Eric Swalwell, who should know better, are screaming to have more witnesses in the bogus impeachment trial. Here is a brief explanation of how the system is supposed to work.
An action begins with the filing of a lawsuit (civil) or an indictment (criminal). This is how any litigation begins. In the case of impeachment, the vote of the House members to begin an impeachment investigation is how the process officially begins. This didn’t happen until October 31, 2019. Now, you should bear in mind that of the thousands of civil lawsuits filed each year, only about 3% go to trial. For criminal cases, it is only about 5%. Why is that?
The answer is very simple: no one has all the facts until there is what we call “Discovery.” In a civil case, that means a demand for documents, disclosure of all witnesses, depositions of all witnesses with the right of both parties to be present at the deposition and to ask questions of all witnesses (cross-examination). In a criminal case, the prosecutor is required by law to provide all evidence in their possession to the accused, even if it might show some doubt as to their guilt. Basically, there can be no surprises at a trial, if it comes to that.
At some point, there will be a trial date set. This is usually months, and sometimes years, after the date that a lawsuit is filed. This provides ample time for both sides to finish discovery and handle any disputes, which happens quite often. For example, if one attorney demands documents regarding the communications between another attorney and his client, that would be challenged due to the attorney-client privilege and confidentiality. There are other grounds for refusing to supply documents or to testify. These are resolved by what is known as a motion to compel answers or production of documents, brought by the party demanding the documents.
In both civil and criminal cases, the parties attempt a settlement. In 97% of civil cases, the case is either dismissed because there is no possible way the complaining party can win, or they settle the case through mediation or arbitration. In criminal cases, it’s called a plea bargain.
In the 3% or 5% that actually go to trial, the trier of fact is either a judge, if all parties agree, or a jury if one party demands a jury trial. In the case of impeachment, the Senate is the jury, not the prosecutor. The sad thing is that Schiff, Nadler, Pelosi, Swalwell and Schumer all know this!
Now let’s take a look at how this all played out with the attempted impeachment of President Trump.
1. Subpoenas for witnesses and documents were issued by Schiff’s committee BEFORE it was authorized by the full House of Representatives. That is a failure to follow due process by the committee, which was pointed out by the White House counsel.
2. Once Schiff’s committee was authorized by the full House, they held secret interrogation of witnesses, in some cases keeping Republican House members from attending. When later hearings, Mr. Schiff would not allow full cross examination of witnesses. Nor, would he allow the Republicans to call any witnesses. Finally, he would not allow White House counsel to be present so he could cross examine witnesses. This was a complete denial of due process, and Schiff’s Kangaroo Court process is reminiscent of what you might get from Kim Jong Un, Raul Castro and Nicholas Maduro.
3. If there are objections from witnesses to testify or produce documents, the party looking to obtain the information has the right to file a motion to compel with the court. Yes, this takes time, but it balances the needs of one side with the rights of the other. This has been the process for decades. However, Mr. Schiff had a timetable, and he wanted to get the impeachment sticker on President Trump before Christmas.
4. Now, if you eventually do go to court, assuming that everything was done properly (which it was not in this case), you provide the opposing side with your list of witnesses and any documents that you are going to present. Obviously, in this matter, the witness testimony comes from the transcripts of depositions and exhibits of any documents. However, Mr. Schiff refused to provide at least one transcript to President Trump’s attorneys.
5. In a case of impeachment, the House of Representatives is the prosecutor, while the Senate is the JURY. The jury is the trier of fact that is presented by the parties. Now, what has happened in this case is that the House (prosecutor) brought an incomplete case to the Senate trial. Mr. Schiff and Mr. Nadler did this instead of completing their job prior to bringing the case to the Senate because they had an arbitrary timeline and “corrupt motive” to influence the 2020 presidential election. Now, instead of doing their job, Mr. Schiff and Nadler are asking the JURY to finish the investigation for them. I have never heard of a case where an attorney came into a trial with a less than marginal case and then ask the JURY to come up with evidence for them. If that was to occur, the judge would call a mistrial and the case would be dismissed or rescheduled.
The reality is that Mr. Schiff, Mr. Nadler, Ms. Pelosi, Mr. Schumer and Mr. Swalwell (Pelosi’s lap dog) made a calculated guess that this would hurt President Trump’s chance of re-election, because they knew that they had no chance of challenging his record on the economy and other areas of his success.
