Why the Senate Passed on Witnesses
Dov Fischer
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The Senate voted on Friday not to have witnesses appear for the Pelosi Stillborn Impeachment. Here is why.

  1. The Senate Is Not the House.

The United States Senate is a more deliberative, elegant body than is the House, and it is comprised primarily of more even-keeled politicians. There is a simple reason for this. In the House of Representatives it is possible to get elected in an outlier district and to remain there for years without bothering to manifest prudence or common sense. Maxine Waters is a lock because her district is perfect for her, and she for them. Same with Nancy Pelosi. Same with Ocasio-Cortez and Jerrold Nadler on the other coast. Likewise Ilhan Omar. The only way that any of them ever would lose their seats is if they would die, be primaried out, or both. As long as their names appear on a November ballot under the Democrat column, they are in for two more years and then two more. Therefore, Maxine Waters could yell “Impeach 45!” the day that Donald Trump became president, and her district loved her for it. That kind of district does not expect anything whatsoever from her because they do not know what a real congressional representative can do. Rather, they are just very angry at the way that life worked out, and Maxine is their revenge on America.

In Pelosi’s case, she is there for her billionaires, and they are there for her. It is that simple. For Ocasio-Cortez, her district is comprised heavily of people with Puerto Rican ancestry, and she is their cup of Piña Colada. Although they may wake up one day and realize that she just cost them 25,000 amazingly high-paying Amazon jobs that were earmarked for them in their district, no other concern would imperil her politically. She speaks their language, Joe Crowley is an Old White Guy, and it is that simple. As for Nadler, his New York City district is a Democrat lock, and his only need is to avoid a primary fight by proving to the radicals who would challenge him that he is as radical and unhinged as they. So he talks stupid even though he is smarter than that, for example calling President Trump a “dictator” because, well, why not? Most Americans do not know that there is a technicality under American law that protects legislators from being sued for defamation as long as they restrict their slander within the halls of Congress. See, e.g., Hutchinson v. Proxmire, 443 U.S. 111, 99 S. Ct. 2675 (1979).

As for Ilhan Omar, her outlier district is where the Somali Americans live. Some 40 percent of all Somalis now in the United States live there. So she does not represent a cross-section of America. In Minneapolis, the city council annually celebrates and commemorates Somalia Day. Is there such a celebration in your town? Minneapolis has a “sister city” relationship with Bosaso. Did you know that? Do you even know what Bosaso is? So that is how Ilhan Omar ends up in the House, not only carrying the Islamist attack on Israel and Jews day and night but even refusing to recognize the Armenian Genocide because Muslim Turkey and Muslim Somalia are deep allies, incredibly closely bound politically.

By contrast from the House, the United States Senate is very different. To be elected a United senator you have to appeal to a much broader statewide electorate. Even the leftist Democrats in the Senate have to comport themselves with greater equilibrium. Amy Klobuchar cannot just pander to Somalis to get elected a senator from Minnesota. Chuck Schumer cannot just pander to Puerto Rican descendants. Dianne Feinstein cannot just pander to the Maxine Waters constituency. If any of those three tried that, they never would have gotten elected. Even Amy Klobuchar, whom we have learned actually is a very vicious and hateful person, knows enough to act “Minnesota Nice” in the public eye. Only when she is certain that no one is watching will she hurl dangerous objects at her staff, demean and insult them, and then sabotage and ruin their efforts to find employment elsewhere. But you won’t find her making Don Lemon wash out the hair combs she uses to eat salad.

Both among Republicans and Democrats, senators comport themselves with greater dignity and manifest the appearance of being more reasoned. They play the game. Beto is in the House, not the Senate, so can go around having his ear hairs clipped and his teeth flossed on social media. For all the money he has raised, he never made it to the Senate. Similarly, it is very rare indeed that a United States senator would be made of the kind of trash that publicly would use words so coarse as to refer to the president of the United States as a “M-F-er.” A congressional representative might be made of that kind of trash if her outlier district is, but it never would pass muster for an entire state. People of quality do not speak publicly like that.

  1. The House Impeachment Shenanigans Would Not Play in the Senate.

In the House, a pathological liar like Adam Schiff actually could end up chairing the Intelligence Committee. A Schiff and a Nadler actually could be hand-picked to run a sloppy and minor-league Grade-C impeachment. They could ram through votes as they like, hold secret sessions barred to the public, deny the president basic rules of due process. They could run a kangaroo court and decide not to bother subpoenaing witnesses they want to hear, leaving it instead to Schiff to fill in any blanks with lies, fabricated phone conversations, and assertions about “whistleblowers” that are not actually whistleblowers. They can get away with it because they have just enough clowns and barkers in the arena to make it a circus if they like. With an assemblage of Lying Adam Schiff, Doddering Nancy Pelosi, Maxine Waters, Ilhan Omar, Rashida Tlaib, and a whole tent full of such cartoon characters, there is no holding them back when they have the majority.

Nevertheless, once their impeachment came the Senate, it was dead on arrival. It was stillborn. No one can expect Democrat senators to say this openly, but many undoubtedly were appalled and embarrassed. Imagine a Joe Manchin of West Virginia and a Doug Jones of Alabama contemplating the impossibility of what was being presented to them: “articles of impeachment” that utterly ignored the constitutional standard of treason, bribery, high crimes or misdemeanors. Testimony that demonstrated that the money actually had been sent timely to Ukraine, that Ukraine did not even know there was a hold on the money, that the Ukraine president never perceived he was being threatened, that more aid — lethal military defensive aid, too — was sent to Ukraine by Trump than by Obama. To the degree that the House had prevaricated by saying that it had to skip the subpoenas and could not devote time to build an actual case because the matter was so urgent that it could not be delayed for a moment, the senators then found themselves twiddling their thumbs for 33 days waiting for the articles to be submitted. Then, on the day a month later when the charges finally were about to be walked over, the circus moved to the center ring where Nancy Pelosi started giving everyone in the audience a souvenir pen with her name on it. It was like the Oprah Show, only too cheap to give each person a car. That works in the House Circus, but it is embarrassing for senators to be associated with such shabbiness. Senators, rightly or wrongly, see themselves as dignified statesmen.

Because the House turned the impeachment into a partisan circus, it never had a chance to extend into a lengthy reckoning within the Senate.

  1. The House Impeachment Managers Were Hacks, While the Trump Defense Were All-Pro Attorneys.

Adam Schiff and Jerrold Nadler would not sway senators. Schiff is a known pathological liar, so he entered without “street cred.” Think of any childhood friend your kid ever had who was a pathological liar. You kept such people out of your home. You forced your kid to stop spending time with the liar. You avoided that kid’s parents. You refused to carpool with that family. That is how senators, like all fair-minded Americans, view Adam Schiff. He is beneath them. United States senators lie, but only because they feel they need to do so in order to get reelected. The thing is, they have enough self-respect, enough moral compass to know they are lying, and they justify it internally by convincing themselves that they really do aspire to honor their promises but are precluded from actualizing their words because they lack the votes or just need more time.

But Schiff is different. We now know that there is something corrupt within his soul, that he lies without remorse, that he can beat any lie detector because nothing inside him perceives that he is lying. It is a pathology. That may work in his Democrat congressional district, though his Armenian-American voters deserve so much better because they are so much better. But he never had a chance in the Senate. Remember that scene in Jerry Maguire, where Tom Cruise rambles on, and Renee Zellweger finally tells him “You had me at ‘hello’”? Schiff lost the Senate at “Mr. Chief Justice … ” As for Nadler, it is one thing to call Adolf Hitler or Josef Stalin, Mao or Castro a “dictator,” but not this president, regardless of Trump Derangement Syndrome. That kind of garbage does not play in the Senate. On top of all that, Schiff remarkably called senators cowards who were afraid that their heads would be chopped off and affixed to pikes, in the way that medieval punishments were meted out. For example, Henry VIII had dozens like Thomas More and Thomas Cromwell decapitated, with their heads impaled on spikes along London Bridge. Meanwhile, Nadler tried different imagery, accusing senators of treachery. That is some way to win over the jury.

By contrast, the president’s defense was comprised of a “dream team” of seasoned, gifted attorneys, law professors, and academic scholars. From Pat Cipollone to Ken Starr to Alan Dershowitz to Pam Bondi to Jay Sekulow to Michael Purpura to Patrick Philbin, these were people who calmly presented the law, respectfully and not condescendingly walked through the legal history dating to the Founding Fathers and the Federalist Papers No. 65, devastatingly eviscerated the House Articles to shreds, left no reasonable doubt that the House impeachment had been stillborn, and presented senators with a sophisticated basis to emerge satisfied that the House case was so barren of substance that no conceivable additional witness could salvage it.

  1. The Senators Are Human Beings and Wanted to Get Finished With the Nonsense.

Inasmuch as the House impeachment arrived stillborn, the senators had every reason to be wary from the outset. As the two sides made their presentations, it became increasingly clear that the whole thing was becoming a major waste of time. Senators are people, too. The interesting moments had played out, and all that remained ahead was unbearable boredom. They wanted the thing done. Democrats wanted it done, although they would not admit it, because a subpoena to John Bolton would also bring one to Hunter Biden. Once Hunter got cross-examined, there would be no way to avoid a popular demand to subpoena Joe and get to the bottom of the Biden Billion Bribery of Burisma.

Meanwhile, presidential candidates like Klobuchar, Bernie Sanders, and Elizabeth Warren were compelled by law to remain at the Senate trial when they needed to get to Iowa and New Hampshire. Others campaigning for reelection in November to their present Senate seats need to get out and onto the campaign trail. Looming subpoenas to Bolton and Hunter Biden carried with them the potential to open such a can of worms that the trial could end up running four or six more months, with new subpoenas thereupon needed for Joe Biden, Adam Schiff, and the “whistleblower.”

Any sophisticated attorney who ever has litigated a major high-stakes lawsuit knows that, as each subpoenaed deponent undergoes serious cross-examination, there is a distinct possibility that the witness will blurt out things that reveal unexpected new angles for inquiry, driving the need for a whole new set of subpoenas and witnesses. For example, once the Hunter Biden questioning ends, it could compel a need to subpoena the people who connected him with Burisma and those who connected him with China. He might have to produce several years of his income taxes pertaining to his Burisma–China period, and that could open wide new areas for inquiry. Likewise, the examining of the “whistleblower” and Schiff almost surely would open doors of inquiry requiring another round of subpoenas to Schiff staffers who coordinated with the “whistleblower.”

Many U.S. senators are sophisticated attorneys who have been litigation partners at major high-stakes law firms. They know that any vote to subpoena John Bolton could mean that the Stillborn Impeachment could go on for even half a year or more, as the worms come squiggling out of the can. They themselves then would be tied up, unable to get out of town to raise money for their campaigns, stuck in D.C., unable to meet with constituents. Given that the impeachment arrived stillborn anyway, it seems clear in retrospect that the Republicans were not going to be induced by the Democrats to get caught up in their nonsense. It would have been uncouth and impolitic to have said it up front, but the Republicans never were going to approve calling more witnesses.

  1. The Nuances of Election-Year Politics.

With 53 Republicans in the Senate, that left room for three Republicans to be given the president’s quiet blessings to vote with the Democrats for more witnesses. Susan Collins is a valuable Republican senator from a tough state, Maine, and she is up for reelection this November. When the GOP needed her for Kavanaugh, she was there. She deserves a pass and presumably was given one. It would not have been unreasonable to give Cory Gardner a pass, too, because he is facing a tough race in Colorado. The problem for him is that Mitt Romney is on a vendetta against Trump and has been attacking Trump viciously from the time during the 2016 GOP primaries, when it became clear that Trump just might have within him the magic formula that Romney and his Etch-a-Sketch candidacy lacked and always will. The day that Romney first arrived in the Senate, he published an attack on Trump in the Washington Post. He bears a grudge. So, with Romney trying to get Bolton to testify against Trump, Cory Gardner stuck with principle and voted with the Republican majority to end the impeachment. Martha McSally of Arizona stood for principle, too, as did Thom Tillis of North Carolina. Besides, those two might have lost as many votes as they would imagine capturing if they had voted to extend the nonsense.

(As for Lisa Murkowski, she is hard to figure out. Alaska is Republican red. She needs to get her bearings straight. Perhaps she just likes the attention. Whatever. Does not matter. She merits no more than a parenthetical.)

And that is why the Senate decided to get the nonsense finished. The House delivered a sloppy hack job. The senators see themselves above that. The president’s team did a splendid job that justified ending it promptly. Now they are free to return to the people’s business — namely, raising funds and campaigning for reelection. And now they can enjoy standing and applauding the vindicated president of the United States when he presents his State of the Union address to the joint chamber next Tuesday, February 4.

Dov Fischer
Dov Fischer
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Rabbi Dov Fischer, Esq., a high-stakes litigation attorney of more than twenty-five years and an adjunct professor of law of more than fifteen years, is rabbi of Young Israel of Orange County, California. His legal career has included serving as Chief Articles Editor of UCLA Law Review, clerking for the Hon. Danny J. Boggs in the United States Court of Appeals for the Sixth Circuit, and then litigating at three of America’s most prominent law firms: JonesDay, Akin Gump, and Baker & Hostetler. In his rabbinical career, Rabbi Fischer has served several terms on the Executive Committee of the Rabbinical Council of America, is Senior Rabbinic Fellow at the Coalition for Jewish Values, has been Vice President of Zionist Organization of America, and has served on regional boards of the American Jewish Committee, B’nai Brith Hillel, and several others. His writings on contemporary political issues have appeared over the years in the Wall Street Journal, the Los Angeles Times, the Jerusalem Post, National Review, American Greatness, The Weekly Standard, and in Jewish media in American and in Israel. A winner of an American Jurisprudence Award in Professional Legal Ethics, Rabbi Fischer also is the author of two books, including General Sharon’s War Against Time Magazine, which covered the Israeli General’s 1980s landmark libel suit.
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