Fred Henneke, Attorney & Counselor-At-Law


Well,: the joyous holiday season is over and we return to the ugly, hyper-partisan warfare. Not since the trench warfare of World War I has there been such an unproductive, destructive, polarized, unreasoning stalemate. Congress returns to work (?) on Monday. Here is the state of play:

  1.  Prior to adjourning for their 2 week vacation so they could rest from their hard labor, the House of Representatives fulfilled its Constitutional duty and passed two Articles of Impeachment against President Trump Рone for abuse of power and the other for obstruction of Congress.Constitutionally, President Trump has been Impeached, only  the third president to garner that dubious honor.
  2. The action now shifts (at least theoretically) to the Senate; the Constitution gives the Senate the sole responsibility for having a trial on the Articles of Impeachment to determine if President Trump should be removed from office or not. However, the Speaker of the House Nancy Pelosi has thus far refused to transmit the approved Articles of Impeachment to the Senate.
  3. Before the ink was dry on the Articles of Impeachment, Chuck Schumer, the Minority (Democrat) leader in the Senate called upon Mitch McConnell, the Majority (Republican) leader of the Senate, to agree to call four witnesses during the Senate trial, including Secretary of State Mike Pompeo and acting Chief of Staff Mike Mulvaney. Senator McConnell, with a firm majority in his pocket. respectfully disagrees, preferring to conduct the trial as was done for President Clinton. (It takes 2/3rds of the Senators present to remove the President, but it only takes a majority to change the rules for the trial). For President Clinton, the sequence was. (a) presentation of evidence by the Managers from the House of Representatives, (b) rebuttal by the President’s attorneys/representatives, (c) written questions to and answers from the Senators to the advocates for either side (the Senators are not allowed to make speeches or ask questions out loud), and (d) a vote as to whether or not to call live witnesses* or have further proceedings before closing arguments and vote.
  4. Speaker Pelosi is withholding transmittal of the Articles of Impeachment to the Senate in the mistaken belief that doing so will exert more pressure on Senator McConnell to agree to the live witnesses the Democrats want.The Democrats are claiming that there need to be live witnesses so the American people can witness a transparent proceeding with all the facts and theories laid out in public view. In truth, they know that they are on the short end of the stick now and are hoping for a “smoking gun” from the live testimony that will act as a Hail Mary and snatch victory out of the jaws of defeat (to mix metaphors).
  5. Senator McConnell is laughing up his sleeve. He know he holds the winning hand; furthermore, he personally is not in favor a a quick trial since the timing of delay just gums up the Democrat presidential primary with five Democrat senators still in the hunt who will have to act as jurors and not candidates. In response to the transparency argument by the Democrats, McConnell just says “If the testimony of these four individuals is so critical, why did you race to a vote on the Articles instead of following the process to compel their testimony before the House?”.

There is a significant debate ongoing as to whether this particular impeachment movement is an honest effort to uphold the standards of conduct by a president inherent in the Constitution, or just an effort by the losing faction to remove a president they do not like and fear cannot be defeated at the polls in 2020. The constitutionalist in me that reveres our constitution and the system of governing it created truly wants it to be the former. However, this rush to judgment and resultant attempted power play by the Democrats leads me reluctantly to believe it is the latter.


*In the Clinton trial, the Senate did vote to permit showing portions of video depositions by three persons, but no live testimony.

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