This guest post was submitted by Fargo-based attorney Mark Western
I spent some time yesterday watching the impeachment hearings conducted by the United States House of Representatives Intelligence Committee. As a practicing attorney (and an avid political watcher), I have been watching, with some interest and some confusion, about the points that the various members and counsel are attempting to make, either by their own statements or by seeking the testimony of the witnesses.
I don’t think yesterday’s hearing did much to change anyone’s mind or to further the goals of the impeachment investigation. Some of the members of the Committee appeared to genuinely want to elicit information from the witnesses, but most members (on both sides of the aisle) did little more than attempt to parrot their pre-scripted talking points to the witness. This process should not be the political equivalent of Smackdown or Monday Night Raw.
The only discernible new substance appears to be that Ambassador Taylor sent a “cable” directly to the Secretary of State expressing concern that not providing certain foreign aid was “folly.” While it is interesting to me personally to see how the executive branch of government works, I think that yesterday’s testimony amounted to little more than inside baseball.
The members of the committee and committee counsel did not exactly capture the imagination of the American people. If the goal of an impeachment inquiry is to mobilize public opinion behind impeachment and removal, yesterday fell short. Likewise, if the goal of the minority is to make the process appear to be a sham, mission not accomplished. Here is some unsolicited advice for each side- go on youtube and watch how members conducted themselves during the Senate Watergate committee hearings. You can learn quite a bit.
- If the members are fighting with each other and cutting each other off more than actually hearing testimony of the witness, the process is undignified and looks like it is no different than watching talking heads on cable news. That is disappointing and a damning indictment of gridlock and incivility. Maybe that is what Republicans want, but it looks quite petty. Even if your guy avoids either impeachment or removal, it’s not helpful for the long-term health of the party to look like a weasel when making your points.
- SLOW DOWN! If you want to make a point that turns into a moment (e.g. “what did the President know and when did he know it?”), speeding through your questions causes the witness to speed through their answers and the net effect is that it destroys the natural rhythm of trial/hearing and you lose the attention of the audience.
- Don’t ask questions that make the witness try to guess what was in the minds of either the President of the United States or Ukraine, or anyone else for that matter. In regular trial practice, the question would be objected to on the basis that it called for speculation or that the witness does not have personal knowledge. I heard Ambassador Taylor say many times that he did not know and would not guess as to what was meant by whom. Think Sgt. Friday and “just the facts, ma’am.”
- Please, Chairman Schiff (and any other member of Congress), dispense with lengthy opening statements. No one is tuning in to listen to you. The process, as I understand it, is supposed to be witnesses providing evidence. No one wants to hear from you what you think about the evidence until you are done collecting evidence. Even then, we really don’t want to hear from you. It is distracting from the point of the Hearing and it further feeds into the narrative that you have already come to your conclusions before the evidence is in. Sam Ervin, you ain’t.
For me, the most interesting part of the hearings were when the witnesses were asked whether or not the phone call between President Trump and Zelinsky was “perfect”. Both witnesses suggested that the July 25, 2019 call gave “cause for concern.” It was an unrehearsed and human moment that was otherwise lacking during the many hours of testimony.
Maybe the Hearings will take on a different persona after a couple take place and everyone better understands their role, but yesterday’s hearing did not reveal either a smoking gun or an airtight defense for the President. I guess we will all stay tuned.