Back when I practiced law, it was pretty standard procedure to take a close look at the other side’s complaint to see if it suffered from any legal defect.s If you could spot such a defect, you would file a “motion to dismiss” the action. I was pretty good at that.
This was a technical defense, and it might work if the judge thought that even if all the facts in the complaint were accepted as true, the complaint still failed to state a claim. As presented, it did not fit into a legal pigeon hole that empowered the court to act. But even then, the judge would usually allow the other side to amend the complaint – to try again. It was very rarely “dismissed with prejudice”. In fact, I only persuaded a judge to enter that order once, and the decision was reversed on appeal. The other side was given a chance to file again.
Lawyers can play this game because the rules of procedure specifically allow it.
Trump is resorting to this tactic now in his impeachment defense. Even if everything that the House says is true, there is no claim.
BTW, this is convenient for Trump because it distracts us from the rather ugly fact that everything in the House impeachment documents is UNCONTESTED. We know what happened, and while Trump denies it, he offers no contrary evidence. His own people have conceded that based on what they know, what is alleged to have happened, is what happened.
The only thing missing is testimony from people who were “in the room” with Trump. Like Pompeo, Pence, and Bolton. They could say “yes” or “no” whether Trump actually ordered the military assistance freeze. But Trump will not allow them to testify and has refused to provide any documents from them.
Of course, this is absurd. On the one hand to refuse to deliver evidence, and then on the other to claim that Congress does not present evidence of wrongdoing. And the absurdity goes deeper. John Bolton actually wants to testify to the senate. But Mitch McConnell, Senate Majority Leader, doesn’t want him to do so. He wants the “trial” to proceed without any added testimony or documents — even after Trump stonewalled the House investigation, and as more evidence oozes out (for example, from Mr. Parnas). What does that tell you?
So what about this legal argument? Does it have any merit? Could Trump claim that the impeachment documents “fail to state a claim”? The answer is no. I posted on this yesterday, but the argument is so far fetched, it deserves more attention for that reason alone.
First — as opposed to normal civil cases, THERE ARE NO PROCEDURAL ROLES THAT EMPOWER TRUMP TO TRY TO AVOID CONVICTION ON THE GROUNDS THAT NO CLAIM HAS BEEN STATED.
To the contrary, the goal of impeachment is to look at the facts rather than get caught up in legal mumbo jumbo. This is a political process, not a place where lawyers show off their professional prowess. Trump wants to take us to legal mumbo jumbo land. And senate republicans may like it there, but the American people should take note of what is actually happening.
As important – the law DOES authorize impeachment for abuse of power and defying Congress. These are “misdemeanors” (the appropriate meaning in this context is “bad actions” — actions that offend). And the Constitution EXPRESSLY provides that Congress can impeach for misdemeanors.
In other words, the law is clear. The impeachment documents DO state a sufficient claim to go forward with the trial. The question for the senators is whether the facts merit the relief requested.
Bottom line here – Trump’s defense is nonsense on stilts. It is a distraction. And it is designed to allow republican senators to argue that they “could not” convict, when in fact they are deciding not to convict despite the overwhelming evidence of dangerous wrongdoing.
Let me put this another way. This is not a close case. It is not a case where intelligent people can disagree. It is instead, a case where a legal smoke screen is being employed to obscure what happened and is happening.
I find that to be objectionable. And I hope that you do too.
Buzzography 