Graham's Gambit on Witnesses -- the GOP Has Better Trial Lawyers in the Senate Than Do the Democrats

(AP Photo/J. Scott Applewhite)

Early in my career as a prosecutor, I learned a valuable lesson from a seasoned and highly regarded criminal defense attorney.

The best defense in a trial before a jury is to attack the case that the prosecution doesn’t make.  Fight on the ground that the prosecution has looked past or ignored.  If the prosecution tries to “circle back” and cover that ground, the defense becomes about what the prosecution missed — or better yet, what didn’t they want the jury to know when they chose to ignore it in the first instance.


Now, as a criminal defense attorney, I use that strategy to attack the government’s case from the start.  The typical response is that my approach is “irrelevant” because the issues are not part of the government’s case — and in doing so young prosecutors misunderstand the psychology of the exercise — making the jury understand that the government has not adequately investigated all aspects of the case.

When the prosecutor calls a young agent to the stand — and there is almost always at least one youngster involved in order to get the experience — that agent is going to spend a long time answering questions from me about all the things he/she did not do during the course of the investigation.  That sets in the jurors’ minds the idea that I know more about how the investigation should have been handled than the investigators do, and that the investigators took shortcuts and ignored evidence.  It’s not necessarily evidence of “innocence”, just the fact of ignoring evidence calls into question the completeness of what they did and their competence doing so.

That’s what Lindsey Graham did today — likely aided by Ted Cruz, Mike Lee, and a couple of other GOP Senators with trial experience in a courtroom.  I’m not sure there is a single good trial lawyer among the Democrats in the Senate.


Here is how the scenario seems to have played out on the question of calling more witnesses after yesterday’s effective performance by the Trump defense team in shifting the narrative to the past conduct of Democrat politicians that is not meaningfully different than anything done by President Trump on January 6.

Huddling up on Friday evening, there was certainly a view among the Democrats in the House that they did not want the presentation of substantive material to end with the presentation made yesterday by Pres. Trump’s team, which had turned the focus on the Democrats — mainly in the House — and their own prior conduct.

Further, any time in a trial the opponent gives you the chance to call them out as a liar and fabricator of evidence, that’s a “Gold Star” on the board to be used later.  Eric Swalwell provided that yesterday with his imbecilic confusion of the religious reference to “Calvary” being a call to arms by the arrival of the horse-mounted “cavalry” charging down from the hilltop.  To add a cherry atop the sundae they added a “blue checkmark” to the Twitter post being referenced when the account holder had never been given a blue checkmark by Twitter.  So they fabricated evidence.

The combined effect of all of yesterday’s presentation led the House Managers to the view that they needed to call witnesses – something they did not do in passing the Article of Impeachment in the House.


After initially voting “No” on the sudden renewed effort to call witnesses in support of the House Manager’s case, Graham switched his vote to “Yes”, with the motion passing 55-45.  Graham explained after the vote that if the Democrats wanted to hear from witnesses, then the Senate would hear from witnesses — dozens and dozens of witnesses, including elected Democrat officials, Capital Hill Police Management, Park Police Management, FBI, Homeland Security, National Guard, etc.  The prospect of the Senate Impeachment dragging on for days and even weeks — while no other Senate business can be conducted since all the Senators must participate as jurors — was the hand that Graham played in the media.

The near-certain response from the White House was for that to not happen.  The White House’s immediate concern is with actually governing the country by getting nominees confirmed and legislation moving.  The “vanity show” that is the impeachment trial — the Democrat leadership’s performance art and virtue-signaling for the left-wing of the party — does not help the Administration in its efforts to keep from losing altitude in public opinion polls by getting nothing done during the magical “First 100 Days”.

Why not allow witnesses but limit the number in order to bring the matter to a timely conclusion?


That would invite the GOP to run with the “The Democrats only want you to hear the evidence they want you to hear and not the whole truth.”    Witnesses would have to be called until there were no more witnesses to call, or the GOP would shout “obstruction” from the highest rooftops, and characterize the truncated process as unfair to justify their votes to acquit.

So, if the process won’t support calling all witnesses, and limiting the process to only a handful of witnesses would play into the claims of “politics” and “unfairness” — lack of due process — the only option remaining was to reverse once again and call no witnesses.  Which is what the Democrats did.

And now Pres. Trump’s defense is about what the House Managers — in the role of the prosecution — don’t want the “jurors” and the public to know about.  Why DON’T they want witnesses to testify in response to the presentation by Trump’s defense team yesterday.  What did the House Manager’s case ignore?  What didn’t they pursue in a timely and competent manner?  What ELSE have they fabricated besides what moron Swalwell was caught doing?  What are they hiding?  What are they preventing the public from knowing by blocking the testimony of Nancy Pelosi, Muriel Bowser, the Capitol Hill Police Command, and the Metropolitan Police Department Command?


Let’s spend a day examining the new efforts of the FBI and DHS to investigate political opposition under the Biden Administration — that should be fun and enlightening.

They don’t want to answer questions because that is sensitive law enforcement information?  What are you hiding about the Biden Administration turning the FBI and DHS into a “secret police force” to target individuals and groups with opposing political views?

Do you want to know what some of the most terrifying words are for a prosecutor to hear coming out of the mouth of a trial judge??  “Well, you opened the door to this counsel.”

The Democrats have the votes to call witnesses, and now when confronted by the GOP demand to call ALL the witnesses, the Democrats go back to “hide the ball.”

This is easy.  I’d love to have 60 minutes on the Senate floor to “indict” the investigation.

“Investigate the investigators.”   That’s what I learned was the most effective defense strategy when I was a young prosecutor — and I learned it the hard way.

Senate Democrats are, as a general proposition, are stupid, and that is reflected in their allowing themselves to get played in this way.

Nuff said.


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