Posted by Curt on 3 February, 2020 at 1:13 pm. 2 comments already!


As a description of the House Democrats’ philosophy on their obstruction article of impeachment, Rep. Val Demings hits the nail right on the head. As an expression of just how bankrupt this argument is, it’s as good as it gets, too. Demings told the Senate that asserting legal rights and privileges in an investigation is “what guilty people do,” which should have both defense and civil-rights attorneys cringing from coast to coast.

Should, but probably won’t:

DEMINGS: Once he got caught, President Trump engaged in categorical and indiscriminate obstruction of any investigation into his wrongdoing. He ordered every government agency and every official to defy the House’s impeachment inquiry. And he did so for a simple reason: to conceal evidence of his wrongdoing from Congress and the American people.

Let’s start with this declaration first, as Demings omits a fundamental defect in the process. The House never formally authorized an impeachment inquiry, a choice that left the inquiry in a legal limbo at the beginning. Courts might have taken a more skeptical view of executive privilege in a duly authorized impeachment inquiry, but House Democrats skipped that step for purely political reasons. Trump wasn’t defying an impeachment inquiry — he was defying a fishing expedition conducted by the House Intelligence Committee, rather than an investigation by the House Judiciary Committee where impeachment inquiries are usually handled.

That defect in Demings’ argument is small potatoes when it comes to her next point. Guilty people assert rights and privileges, Demings argues, while innocent people produce evidence to prove their innocence in our system:

DEMINGS: The president’s obstruction was unlawful and unprecedented—but it also confirmed his guilt. Innocent people don’t try to hide every document and witness, especially those that would clear them. That’s what guilty people do. That’s what guilty people do. Innocent people do everything they can to clear their name, and provide evidence that shows that they are innocent.

This is most assuredly not how our system of jurisprudence works. Innocent people — especially those with reason to suspect that an investigation might be biased or corrupt — are very well advised to assert every single one of their rights and privileges along the way. Ask Richard Jewell (figuratively speaking) how well cooperation worked out for him. Innocent people are not required to exonerate themselves; prosecutors are required to use all lawful means to provide evidence of their guilt beyond a reasonable doubt.

Demings’ attitude is precisely why the Bill of Rights exists and why the burden of proof is on the prosecutors rather than defendants. The phrase “lawyering up” denigrates what is almost always a very wise decision that’s not necessarily related at all to innocence or guilt.  When investigators start making demands for access to documents, it’s best to demand a subpoena and test it in court to make sure your rights are protected.

Furthermore, executive privilege is a constitutional part of the presidency’s status as a co-equal branch elected separately by the people. The mere existence of a House investigation doesn’t negate it in any way, shape, or form. The House could have taken the Trump administration to court to argue its case that privilege didn’t cover these documents and witnesses, and they could have accelerated that process by voting for a formal impeachment inquiry.

That brings us to Demings’ final argument in this clip:

DEMINGS: But it would be a mistake to view the president’s obstruction narrowly, as the president’s counsel have tried to portray it. The president didn’t try to defy the House’s impeachment inquiry as part of a routine interbranch dispute, or because he wanted to protect the constitutional rights and privileges of his presidency. He did it consistent with his vow to fight all subpoenas.

And … so what? In America, people get to fight subpoenas. They probably lose more often than they win, but they still can challenge them in court. The House never bothered to fight for their subpoenas, and in most cases didn’t even bother to issue them at all. They just took that “vow” and called it obstruction, a conclusion as absurd as Demings’ emoting all over the podium in this clip.

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