(12-20-2019 08:45 PM)Hambone10 Wrote: (12-20-2019 04:44 PM)mrbig Wrote: Unsurprisingly, I disagree with you both. The problem with the administration's use is that they are using it in a blanket matter. The proper way to use executive privilege (or really most privileges) is to testify (or turn over most of the documents) and only assert the privilege as to specific items. You can't just not show up at all to the hearing or not turn over any documents. It makes a nice sound bite, but that is now how the privilege works.
Sounds to me like a legal argument. Obviously the Trump administration disagrees.
Lawyers fairly frequently challenge things that 'others' think are obvious.
But it isn't a sound legal argument. None of the privileges I have ever dealt with (including deliberative process, which is under the gambit of different privileges unique to the executive branch) let you turn over nothing or stop the witness from appearing. The witness appears and answers non-privileged questions. Like their name, job title, description of duties, etc. And there are certainly non-privileged substantive questions that they can answer as well. Same thing with documents. Its pretty rare that the entire document is privileged, and even if it is, you typically produce a privilege log that has a brief description of the document and assertion of privilege. The privilege itself is real, but the way the privileged is being employed is ridiculous.
(12-20-2019 08:45 PM)Hambone10 Wrote: But you're talking about a trial, and this wasn't a trial. It was a hearing. It was more like a grand jury/indictment phase as you said... but it isn't even really that.
As I said, take away the political biases and I think most people in this country would agree that the burden of proof lies with the prosecution and the defendant doesn't have to testify. If almost literally, the biggest crime you've uncovered is the failure to participate in the investigation of the lack of a crime... they're almost ADMITTING its a witch hunt.... which makes point 2 a distinction without a difference.
What I find silly is that Pelosi charged Trump with obstruction for failing to appear, and I'm sure Trump would say he didn't because he knows he couldn't get a fair 'trial', which is precisely what Pelosi is now arguing for herself... that she won't present the case to the Senate because she can't get a fair trial
I read stuff like this and I need to force myself to take a few deep breaths and remember that I genuinely like the people that I am interacting with.
First (burden of proof) - I agree the burden of proof rests with the prosecution (in this case most of the Democrats + Amash). But that burden is much lower at the impeachment stage (House) than the conviction stage (Senate). If you want to use criminal prosecutions as an analogy, the grand jury burden of proof is "probable cause" while the trial jury burden of proof is "beyond a reasonable doubt". Probable cause is pretty easy, beyond a reasonable doubt is quite difficult. So the only burden of proof that has applied so far is very low (using the analogy).
Second (defendant testify) - only Trump is getting impeached. So the idea that Trump doesn't have to testify is correct ... but doesn't have anything to do with Mulvaney, Bolton, or Perry testifying.
Third (If almost literally, the biggest crime you've uncovered is the failure to participate in the investigation of the lack of a crime... they're almost ADMITTING its a witch hunt) - this is the one that really drives me crazy. Let's use another analogy. Let's say you have probable cause that that a crime was committed, possibly murder. There is a lot of evidence that John went to Sara's house and a lot of evidence that he never came out. Sara was the only one home when John went over there, but her house cleaner Ronald has been there a few times since John disappeared. There is a lot of evidence and good reason that John really didn't plan or want to stay at Sara's house for very long. But John has disappeared and it has been 3 weeks now and John's family is worried about him. All the evidence is at Sara's house. Sara refuses to talk to police. Sara refuses to open her door to allow a search. Sara refuses to allow police on her property to look in her backyard for fresh graves. Sara refuses to allow searches of her email or text messages. Sara tells Ronald not to testify or speak to the police, so he doesn't. Now the obvious flaw in the example is that Sara is just Sara, not POTUS, and obviously the crime is different. But Sara is certainly obstructing justice (which is similar to obstruction of Congress when Congress is the investigator). So no, no one is "admitting its a witch hunt". And if it is a witch hunt, Trump is a witch and the witch hunt is actually legitimate. But that is probably not what he (or you) mean.
(12-21-2019 01:04 PM)Hambone10 Wrote: Pelosi is clearly obstructing Justice.
She want's the specter of impeachment to hang over Trump (and the ability to accuse Republicans of bias) without giving Trump the right to a trial (and the probability of an acquittal).
Seriously....
How is this NOT party before country and an obstruction of Justice?
Read
18 U.S.C. § 1503 and
18 U.S.C. § 1505 and explain to me how the elements for obstruction are met by Pelosi's decision to temporarily delay handing off the articles of impeachment to the Senate. Explain to me how your analysis changes if she hands them over after 10 days as opposed to 25 days as opposed to 50 days. Why and how does the difference in timing change your analysis under the relevant federal statutes?
