To really understand what is happening, we must first understand American criminal jurisprudence. There is a distinct process, based on tradition, law, precedent, and a little bit of ad hoc-ery that defines how a criminal case is brought to trial.
First, evidence of a crime is brought to the attention of a government attorney, such as a district attorney (DA). The DA investigates the facts presented, determined what specific law or laws have been broken, and may investigate further to determine if there is more evidence of a crime.
If the DA finds sufficient evidence that a law has been broken - say 10USC2378, sec. (a) to make one up - then the case is assembled into a file or dossier.
The DA then empanels a Grand Jury to review the file, test the evidence, perhaps do a bit more investigation, and ensure the facts indeed point to a law being broken. If the Grand Jury finds sufficient cause (evidence), then it hands down an indictment against the accused.
The DA transmits the indictment to a court, which then schedules a trial to test the facts in evidence, hear testimony, and determine guilt or innocence. In the US, the trial is presided over by a judge to ensure fairness, but the decision of guilt is made a by jury of the accused's peers. At no time in this process is the accused presumed to be guilty until the jury renders a verdict.
Now to impeachment.
In the case of impeachment, the process is the same as any criminal process under law, except the the players look a bit different and the terms used are not all the same.
The process begins with the House Judiciary Committee being made aware of possible infractions of law. Here, the committee is acting like the DA. It gathers evidence of a crime from facts and testimony, determines whether a specific law or laws were broken, and assembles a file or dossier.
The file is delivered to the full House for consideration. Here, the House is acting like the Grand Jury. It reviews the facts in evidence, compares it to the text of the law that is presumed to have been broken, and determines whether there is sufficient proof to proceed.
Just like a Grand Jury, the House votes on whether to impeach, and if yes, then Articles of Impeachment are produced. This is equivalent to the Grand Jury handing down an indictment. The Speaker of the House, just like the DA, assembles a legal team (House Managers) to deliver the indictment to the Senate, which in this case becomes the court and the jury. All 100 Senators are assembled like a jury, attorneys present the case for both sides - just like a regular trial - with the chief justice of the Supreme Court playing the role of a judge in any other trial.
At the end of the trial, the Senators deliberate the facts in evidence, compare it to the wording of the law(s) said to be broken, and like any other jury, render a verdict, with no less than 2/3rds of the Senators required to vote for guilt. Without the 2/3rds majority (super majority), the charges are thrown out and the accused is found not guilty.
If guilty, the accused is then removed from office and the chain of succession takes over.
In the current situation with Donald Trump, a number of errors and irregularities have cropped up, which may end up being fatal to the case as it exists.
At the DA level (House Judiciary Committee), attorneys were not allowed to present evidence or testimony, especially in a forum and under the standard rules of doing such things. There is also the matter of discovery, where both sides of a case must have unfettered access to all the information the other side has. In a criminal case, surprises are not allowed.
Next, the file or dossier handed off to the House for consideration did not include the specific laws that were broken. You can't just accuse someone of doing something wrong, you must show which exact laws were broken. Remember this the next time you go to traffic court... Without knowing which laws were broken, no one can determine IF a law was broken and neither a plea nor a verdict can be entered.
In the case of the current fiasco, neither the dossier nor the Article of Impeachment contain a reference to any specific law that was broken. This is a fatal flaw and in a properly functioning legal system, the case must be thrown out, because neither the court nor the jury can compare the facts to the actual wording of the law supposedly broken.
The next irregularity is that the Speaker of the House, Nancy Pelosi (DA), has decided not to deliver the Articles of Impeachment (indictment from the Grand Jury) to the Senate (court).
Now imagine you are accused of a crime. No one can tell you exactly what law you have broken, but the DA takes the case to a Grand Jury that indicts you anyway. Despite having no clue which law you broke, you are expected to mount a defense, while at the same time not being able to present your side of the argument, or even being allowed to examine the evidence the other side has gathered.
The Grand Jury indicts you of a crime, but you don't know which law you broke. They refuse to show you the evidence they have, but you are expected to mount a defense. At this point, the reader should go see Orson Welles' The Trial, based on the Franz Kafka play (see the play instead if possible).
In spite of all these issues, the Grand Jury indicts you anyway. But wait! Now theDA refuses to take the indictment to court for trial, so you are now left in legal limbo. Unable to defend yourself. Unable to argue against the process itself. And all the while paying your high-priced legal team to wait for nothing while they prepare to fight a case in which no law has been broken and no public evidence has been presented.
This is where things stand in the US at the moment. The Articles of Impeachment (indictment) were handed down while following none of the normal and expected rules to do so. The Speaker (DA) now refuses to deliver the Articles (Indictment) to the Senate (court). And in no instance can anyone cite the precise laws that were supposed to have been broken.
If this sounds like a kangaroo court, then you finally understand why so many people are upset. It is truly Kafka-esque in every sense of the term.
There is much speculation as to why all of this has happened. The most obvious is that Trump broke no laws, so no law can be cited, and the circus that has followed is the biggest legal fraud in US history. The fact that the Speaker refuses to deliver the Articles indicates she is well aware of the flaws and knows that they would be thrown out on prima facie.
Going further, some suspect a two-fold motive. Having the Articles is a PR victory - of sorts - because the Democratic caucus knows that almost no one in the US understands what they are doing. Thus, the image damage is done.
It's possible that this whole charade is also trying to manipulate the 2020 elections. If the Speaker holds the Articles until January or later, the trial in the Senate would take place at the beginning of primary season in the election. That Bernie Sanders, Elizabeth Warren and Amy Klobuchar are Senators means they would be tied up during the Impeachment trial, unable to campaign in the early primaries, leaving Joe Biden the default front runner with almost zero opposition.
No matter how you slice this mess, it comes up a big loser for Democrats. Trump is quickly turning the whole thing in his favor. The Democrats look like a bunch of Bumbledicks with no clear understanding of the system they supposedly run, and in any case unwilling to do more important work - such as legislating.
With a clear understanding of what is going on, perhaps now the dear reader is able to sit back and enjoy the circus without investing too much emotional cache. It's all show. Nearly all of the players in this charade are lawyers and know what they are supposed to do, and that they are not doing it is quite telling.
There are a number of possible motives at play here, but removing Trump doesn't seem to be the most important. Instead, there is a grand manipulation of images and politics that we little people are not privy to, so we should just sit back and enjoy the freak show.
If this sparks strong responses either way, be sure to leave a comment below. Thanks!
