Thread by @MiekeEoyang

McConnell's actions to proceed without agreement on taking evidence are a precursor to a violation of the Senate's Constitutional role.

I will explain.

https://twitter.com/seungminkim/status/1214613639719772160

Legal proceedings, like impeachment and removal, are necessary to decide disputes about facts.

There are only a couple legal proceedings where you don't have consideration of factual evidence. One at the outset of a legal process and the other after the conclusion of one.

(And forgive me if there's oversimplification in here. These are analogies.)

Impeachment & removal is not exactly a criminal trial, but that is analogous, so let's look to the example.

McConnell is acting like the House was the trial and the Senate is the appeal. As we discussed earlier, the House is more akin to the grand jury & the Senate is a trial.

How do we know that the Senate isn't an appellate review? Because the Constitution specifies that the Senate is the trial. Also, it unlike the House, determines the punishment.

But mostly, because in past impeachments, it has taken testimony.

So that's the non-fact-finding process after a trial. What about at the beginning? In legal processes, there are two.

In civil proceedings, there's a thing called Summary Judgement.

In criminal proceedings, there's a thing called a Directed Verdict.

In a civil suit, Summary Judgement is defined in the Federal Rules of Civil Procedure. law.cornell.edu/rules/frcp/rul…

There, the alleged facts are taken in the best light for the party not moving to dismiss. Here, you would have to take the facts as interpreted by the House Dems.

So in summary judgement you'd have to assume that a) the President DID withhold aid and a meeting to pressure Ukraine into an investigation of the Bidens, b) that he did so in his own personal political interest.

Then you'd deliver summary judgement on things as a matter of law. So, then you'd just argue about whether, as a matter of law, a President is allowed to turn foreign policy to his own personal political interest and Rs would argue, yes that's legal for a President. 😬

If you want to argue about the facts and their meaning -- which the Republicans do -- then you HAVE TO PRESENT AND CONSIDER EVIDENCE.

Ok, so that's a civil suit. What about a criminal trial?

In a criminal trial, there's this thing called a directed verdict.

A directed verdict occurs AFTER the Prosecution (Here the House Managers) calls all their witnesses and presents all their evidence.

It does not occur after the only thing you've heard are opening statements.

For a directed verdict, the Prosecution presents all its evidence and calls all its witnesses. Before the Defense offers any evidence, it argues the Prosecution has failed to state a case.

So if Senate Rs don't want a full trial they have 2 choices. Either:

a) Concede all @RepAdamSchiff and @RepJerryNadler's allegations and presentation of the facts, & just argue that the conduct is allowed; OR
b) Let the House managers call witnesses.

But here, the President has specific things he wants to dispute and will not concede. For example, that:

a) there was a quid pro quo
b) Ukraine felt pressure
c) Ukraine knew the aid was withheld
d) the aid was held for a legit purpose
e) the investigation was about corruption

One reason why the Clinton trial is a bad analog is that the facts weren't disputed. There, the only questions were:

1) Did Clinton have an affair with Monica Lewinsky?
2) Did he lie about it to the grand jury?

Both the prosecution & Clinton agreed the answer was yes.

Again THE PRESIDENT CONTESTS THE FACTS AS PRESENTED BY THE HOUSE.

When there is a dispute over the facts, they are presented at trial.

(Also, new facts can emerge between the grand jury and the trial, and be introduced at trial.)

Here, proceeding without agreement to about how or whether to take evidence means that this isn't a real trial, as the Senate is directed by the Constitution to conduct.

Voting to dismiss without allowing consideration of the facts is reducing the Constitution to naked politics.

So if McConnell proceeds without allowing testimony and the introduction of evidence, having previously stated that he's in lock step with the White House, he and every Senator that votes with him are derelict in their Constitutional duty to run a trial.