Please stop calling the impeachment proceeding a trial — it’s a charade

As a trial attorney and former prosecutor, I’ve tried over hundreds of cases. The essence of a trial is to seek justice and search for the truth. I often tell jurors that it’s a fact-finding mission with a juror’s role to determine the facts of the case. As I watch the impeachment trial unfolding, I see a little semblance of a real trial. The critical element of a trial should exist in both legal and political trials. It’s called fairness. That element is missing in these proceedings.

In a legal trial, some common elements exist. There are always two sides, prosecutor and defense in criminal prosecution. There’s still a judge who makes rulings and decisions on evidence, witnesses, and procedures, among other things. Impartial jurors deliberate and decide on the outcome of the case, at the end of the trial.

There’s always evidence which consists of sworn witnesses, documents, and often illustrative exhibits. Lawyers on both sides give opening statements and closing arguments. In a courtroom trial, lawyer statements do not qualify as evidence. An impeachment proceeding differs from a legal trial in many aspects. 

On Jan. 8, 2020, before the trial began, Senate Majority Leader Mitch McConnell (R-Ky.) met with Donald Trump to discuss the impeachment trial. Coordination between a juror and a defendant never occurs in a legal trial. It’s prohibited. 

Imagine if in a criminal trial, jurors met with the defendant before the trial — to discuss the upcoming trial. McConnell along with 99 senators took the oath of office to do impartial justice in the impeachment case. A poll found that 70 percent of the American public wants senators to act as impartial jurors. 

Recent polling shows that 72 percent of those polled want to see first-hand witnesses, particularly former national security advisor John Bolton and Secretary of State Mike Pompeo. No witnesses will testify in the case against Trump.

Republican senators voted against 11 Democratic amendments to allow firsthand witnesses and to subpoena documents. When asked about how the impeachment trial was proceeding, Trump boasted that “we have all the material. They don’t have the material.” 

In a court trial, a judge makes rulings on motions presented by each side. In the impeachment proceeding, the senators voted on motions or amendments. Chief Justice Roberts’ role is mostly limited to courtroom decorum. 

He admonished both sides on courtroom behavior. It does not appear that Justice Roberts will have a substantive role in the case. Senate Democrats proposed an amendment to allow Justice Roberts to make rulings on whether to call witnesses. Republicans voted it down.

Democrats believe that they can make a case for Trump’s impeachment and removal from office. If Republicans believe the two articles of impeachment do not support an impeachment case against Donald Trump, then why won’t they allow for all the evidence to come forward? Wouldn’t it make better sense for McConnell to say that the Senate allowed all available evidence and witnesses and Democrats couldn’t make their case? Why hide or withhold evidence if there is nothing to see? 

Sometimes a client will ask me if their case is rigged, meaning if the judge has pre-determined the evidence against them in advance. In the case of the impeachment trial of Donald J. Trump, the case is rigged. And the American people are the losers.

Why are we having a trial, if it’s seemingly rigged? Why are we having a trial if the outcome is pre-determined? That’s the question that some Americans ask — rules matter. Laws matter — democracy matters. And no one is above the law, even the president.

A charade is an absurd pretense intended to create a respectable appearance. After the impeachment charade ends, the task is left for the American people. Americans must do what the GOP senators will likely fail to do. The American people must vote to remove Trump out of office in November.

Deborah Hines, J.D., is a former Baltimore prosecutor. She currently runs a private practice out of Baltimore and Washington, D.C.