The Right Call Not to Call Witnesses

Before people get upset about the House Democrats not calling witnesses:
I think they understood the chances have increased significantly over the past 48 hours of Trump being criminally prosecuted for Jan. 6 (with witnesses, a real judge, and full legal process).
Plus they can bring these witness during a state or federal prosecution of the Georgia call (because Trump’s conduct before snd during the riot is context and evidence of intent.

I had said earlier and often that Trump would not face prosecution: the speeches themselves were not criminal incitement.
But now: new questions of contacts before and during the insurrection arose. I think a criminal investigation is now likely, and an indictment is plausible.

I think the House managers have done a great job. The problem is the Senate “judge and jury,” and as we’ve seen, the GOP Senators are only interested in obstruction and partisan spin.
Let prosecutors investigate and then – in a real courtroom – get a clean shot at questions.

If this Senate trial called witnesses now:
1) It would have been an unprepared circus;
2) that GOP Senators would use to their advantage to muddy up the testimony and taint the testimony in bad faith;
3) and decrease legitimate need for prosecution. Only 1 bite at this apple.

And 4) A delayed Senate trial does interrupt other urgent business, when the Democrats cling to a precarious 50/50 “majority” and a death or illness among any one of those 50 would endanger Covid relief, judicial confirmations, administration confirmations, voting rights legislation (we need all the luck and every vote and every minute for this agenda). Plus it is obvious that witnesses won’t switch 10 Senate Republican votes.

A courtroom is the more effective venue to question, with more time to prepare and make cooperation agreements and plea deals. Flip more co-conspirators to get all the way up to the crime boss.

And don’t forget tort civil suits for the personal injuries during the riot, with discovery and depositions of Trump and his contacts:

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

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