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Fri Nov 8, 2019, 10:20 AM

It just dawned on me. (Senate trial)

When the Senate trial begins, Republicans will be calling all sorts of "witnesses." Is there any reason why half the time won't be taken up with questions like "And why did the president think that the Bidens needed to be investigated?" This will bring up that scurrilous book that started the false stories. And "Why did the president think the hacking originated in Ukraine?" Same story.

It would matter little that the answers can be torn apart with logic. We all have seen how damaging it is simply to ask the question. "What did John Kerry really do on that river in Viet Nam?"

So far all the MSM have been really good about shutting down chatter about false stories. But McConnell won't be good at all.

This was a new thought to me. Have pundits beaten it to death and I just didn't notice? Has this been discussed on DU?

tia
las

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Reply It just dawned on me. (Senate trial) (Original post)
LAS14 Friday OP
Wounded Bear Friday #1
LAS14 Friday #3
hlthe2b Friday #6
LAS14 Friday #8
hlthe2b Friday #10
LAS14 Friday #11
hlthe2b Friday #13
tinrobot Friday #17
The_Counsel Friday #29
unblock Friday #9
hlthe2b Friday #15
lagomorph777 Friday #22
hlthe2b Friday #2
LAS14 Friday #5
Bev54 Friday #4
hlthe2b Friday #7
unblock Friday #12
hlthe2b Friday #14
unblock Friday #18
hlthe2b Friday #19
unblock Friday #24
hlthe2b Friday #25
unblock Friday #27
hlthe2b Friday #30
jberryhill Friday #28
unblock Friday #31
jberryhill Friday #33
hlthe2b Friday #16
unblock Friday #21
hlthe2b Friday #23
unblock Friday #26
Bev54 Friday #35
lark Friday #20
grantcart Friday #32
unblock Friday #34
grantcart Friday #40
unblock Saturday #41
lame54 Friday #36
LAS14 Friday #38
lame54 Friday #39
Joe941 Friday #37

Response to LAS14 (Original post)

Fri Nov 8, 2019, 10:23 AM

1. McConnell will not preside over the trial, CJ Roberts will...

that's in the Constititution.

Roberts is a conservative, but he has always seemed to have a deep consciousness of his legacy and as such, has been fairly moderate in his assholery. Somehow I think he would not allow a lot of chicanery, especially of the obvious style you describe.

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Response to Wounded Bear (Reply #1)

Fri Nov 8, 2019, 10:27 AM

3. Well, I'm not sure "Why did the president think..." is...

... obvious chicanery. It seems a relevant question that any defense lawyer would ask. Actually, the answers needn't be lies. "He thought so because of xxxxxx's book." Which sends everyone out reading the innuendo packed book that started this. That may even be the truth of Trump's impulse. He may have thought Aha!!! Let's get Biden" based on that book. He's that stupid.

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Response to LAS14 (Reply #3)

Fri Nov 8, 2019, 10:31 AM

6. I never said this would not happen. In trials, every possible spin is attempted by the defense

It is up to the prosecuting House lawyers to rebut this as a defense.

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Response to hlthe2b (Reply #6)

Fri Nov 8, 2019, 10:33 AM

8. Right. I'm sure they'll do an outstanding job. And it may have...

... as much effect as Kerry and Hillary's defenders had.

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Response to LAS14 (Reply #8)

Fri Nov 8, 2019, 10:35 AM

10. What is the alternative you would suggest? I believe a very effective case will be laid out

and the American people WILL see it. It is a minority, however sizable IMO, that will continue to be bamboozled, but they would be so under ANY circumstances. That is just where we are as a society.

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Response to hlthe2b (Reply #10)

Fri Nov 8, 2019, 10:36 AM

11. I don't have an alternative. I'm just not as sanguine...

... about the upcoming trial as I was before I had this flash. What makes you think the American people are smarter now than they were in 2016 and when Kerry ran?

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Response to LAS14 (Reply #11)

Fri Nov 8, 2019, 10:38 AM

13. We face enough day to day demoralization and disquieting revelations. Keep some fath.

Otherwise none of us will get through this period


Read the article I've linked throughout this thread. A lot of people are positing some "facts" about who has authority and how impeachment trial will progress that are simply not true. Of course none of us trust Senate R's. Nor should we. But, they do not hold ALL the cards.

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Response to LAS14 (Reply #3)

Fri Nov 8, 2019, 10:45 AM

17. "What did someone else think..." is usually not a valid question in court

A competent judge would not allow it.

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Response to tinrobot (Reply #17)

Fri Nov 8, 2019, 11:28 AM

29. This.

Although, I wonder--after decisions like "Citizens United"--whether Roberts can be viewed as a "competent judge." One can only hope...

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Response to Wounded Bear (Reply #1)

Fri Nov 8, 2019, 10:34 AM

9. roberts will preside, but will not be doing much to determine what witnesses are called.

on a day-to-day basis, the vice-president constitutionally "presides" over the senate. in practice, this is such a near-useless power that the vice-president often doesn't bother.

he'll really just be the guy who runs a meeting. asks what's on the agenda, tells people when their alloted time is up, moves on to the next agenda item, etc.

he will bend over backwards to make as few real decisions as possible because impeachment is a senatorial power. it's the senate's show, even if he "presides" over it.

he's about as consequential as the host on "american idol". not a contestant, not a judge, just a host who introduces people and tells the audience when it's time for a commercial.

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Response to unblock (Reply #9)

Fri Nov 8, 2019, 10:43 AM

15. Even McConnell has made it clear that Roberts will rule on any motions made by opposing sides



Many scholars who have studied the impeachment process view the chief justice’s role at an impeachment trial as similarly ceremonial. But on Tuesday, McConnell played up the power that Roberts has — noting that he would rule on any motions made by the opposing sides.

“The chief justice is in the chair. And senators are not allowed to speak,” McConnell said. “So, that’s the way it will be handled in the Senate.”

https://www.washingtonpost.com/politics/senate-impeachment-trial-to-test-chief-justice-who-has-tangled-with-trump/2019/11/05/1c220a7e-fb3e-11e9-ac8c-8eced29ca6ef_story.html

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Response to Wounded Bear (Reply #1)

Fri Nov 8, 2019, 11:02 AM

22. Didn't His Assholiness, Justice Roberts, preside over the legalization of bribery and gerrymandering

Those things have been extremely destructive to the Republic, not moderate at all.

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Response to LAS14 (Original post)

Fri Nov 8, 2019, 10:27 AM

2. The House lawyers present the case; Trump's lawyers can rebut, but that is not the function of

the Senators. They are purely the jury. Of course, they can try to introduce this with their questioning, but it will be up to Trump's lawyers to try to formally introduce anything like this and if Roberts does his job, he won't allow it to be fully diverted from the case being tried. Say what you will about Roberts, but he does care about institutions and his own reputation--and he knows how a trial is supposed to proceed.

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Response to hlthe2b (Reply #2)

Fri Nov 8, 2019, 10:29 AM

5. See my reply #3 just above. nt

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Response to LAS14 (Original post)

Fri Nov 8, 2019, 10:28 AM

4. This is their plan

It has been reported that they want to make the trial about Biden and call Biden to testify.

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Response to Bev54 (Reply #4)

Fri Nov 8, 2019, 10:32 AM

7. They will try, but that is why having the most effective impeachment witnesses testsify

is so important. If Roberts retains any of what I believe he still manifests in terms of judicial ethics, he will rule out a lot of innunendo sans any demonstrated applicable relevence to the case OR any evidence whatsoever.

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Response to hlthe2b (Reply #7)

Fri Nov 8, 2019, 10:37 AM

12. it's not even clear that he has the power to rule anything irrelevant.

this isn't a judicial trial and he is *not* functioning as a judge or justice in an impeachment trial.

he is merely "presiding" over a non-judicial proceeding under senate rules acting on a senatorial power.

he's really little more than a meeting manager in this function.

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Response to unblock (Reply #12)

Fri Nov 8, 2019, 10:41 AM

14. You keep mistakenly pointing to the VP having authority over impeachment trial. THAT IS NOT TRUE

The only guidance the Constitution gives is: “When the President of the United States is tried, the Chief Justice shall preside.” That is to avoid a potential conflict of interest because the vice president, who usually presides over the Senate, would theoretically benefit from a president’s removal from office, according to Don Ritchie, the longtime Senate historian.

https://www.washingtonpost.com/politics/senate-impeachment-trial-to-test-chief-justice-who-has-tangled-with-trump/2019/11/05/1c220a7e-fb3e-11e9-ac8c-8eced29ca6ef_story.html

AND NOTE:
Many scholars who have studied the impeachment process view the chief justice’s role at an impeachment trial as similarly ceremonial. But on Tuesday, McConnell played up the power that Roberts has — noting that he would rule on any motions made by the opposing sides.

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Response to hlthe2b (Reply #14)

Fri Nov 8, 2019, 10:49 AM

18. it agree. not sure why you think i meant otherwise.

yes, the vice-president normally presides over the senate, but the chief justice presides over presidential impeachment trials.

i don't think i ever suggested otherwise; i certainly didn't mean to give that impression.

my point was simply that the vice-presidential role of presiding over the senate normally is a role that really doesn't carry much power in practice, to such a degree that vice-presidents often don't bother, preferring to spend their time elsewhere.

i was merely noting that this suggests that the chief justice "presiding" over a presidential impeachment trial is a similarly ceremonial role, not carrying much power.


the senate has the power to make the rules and such. to the extent that the senate wants to delegate their powers to the chief justice, that's possible, but it's not because roberts inherently has that power, it's only because the senate delegates its power to him, which they could revoke at any point.

it remains to be seen how the trial will play out. we have a very limited history of actual presidential impeachment trials. it is shaping up that both mcturtle and roberts are likely to do what they can to avoid making any consequential decisions.




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Response to unblock (Reply #18)

Fri Nov 8, 2019, 10:53 AM

19. You post # 9 seemed to be stating such for the VP

Did you the article I provided? It directly counters--even with McConnell so acknowledging, that Robert's role will NOT be merely ceremonial.

We certainly have enough to be concerned about vis-a-vis Senate R's and dirty tricks but lets not promulgate that which has already been clarified.

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Response to hlthe2b (Reply #19)

Fri Nov 8, 2019, 11:03 AM

24. i started that post with "roberts will preside", which i thought would make it clear

but i guess not. i meant the vice-president constitutionally presides at all other times. the chief justice presides over presidential impeachment trials.

simply pointing out that "presiding" over senate proceedings is constitutionally not a role that carries much power, whether it's the vice-president presiding over day-to-day proceedings or the chief justice presiding over a presidential impeachment trial.

see my post #21 for a response to your commentary about the article.

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Response to unblock (Reply #24)

Fri Nov 8, 2019, 11:05 AM

25. I'll take my lead from Laurence Tribe and Neil Katyal on this. I find their opinions to be far more

convincing. Not to mention that I find the dismal defeatism in some of these posts to be the kind of uplifting motivation of a HEMLOCK SOCIETY meeting. I can only hope downtrodden DUers do their own homework and keep some perspective.

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Response to hlthe2b (Reply #25)

Fri Nov 8, 2019, 11:18 AM

27. wow, what's eating you today?

it's not "defeatism" to recognize that mcturtle will behave in a way consistent not only with his past practices, but also consistent with the way it's already been reported that he'll behave.

it's already been reported there that they're going to try to deflect attention away from donnie and on to biden.

are you seriously expecting that mcturtle, one of the slimiest, most partisan majority leaders the senate has ever known, is suddenly going to be a model of propriety and impartiality?

we'll get a trial, and we'll get airtime exposing donnie's corruption and criminality. it will do political damage to donnie and to republicans.

republicans will then get their turn, and they will use it at least in part to smear democrats like biden. that's not defeatism, that's recognizing that republicans will be republicans.

defeatism would be thinking this will spell doom for us next november. personally, i think the impeachment process and trial will be vastly more damaging to donnie than it will be for biden. there, is that sunny-sunny enough for you?

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Response to unblock (Reply #27)

Fri Nov 8, 2019, 12:44 PM

30. there is a big difference between "realism" and "defeatism". That's all I'm saying.

Some here are beginning to look for the latter and I say that as one who does not, by nature, always see the glass as "half full."

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Response to hlthe2b (Reply #19)

Fri Nov 8, 2019, 11:20 AM

28. No, that's not at all what unblock is saying


Unblock is pointing out that the word "preside" is used in the Constitution:

(a) to refer to the function of the Vice President, and

(b) to refer to the function of the Chief Justice during impeachment proceedings.

Various other people are reading a lot into the word "preside" in scenario (b), and ascribing that function much more influence that the word "preside" in scenario (a).

Simply because an article proposes a much more active role for the Chief Justice during impeachment than for the VP during ordinary business, does not make it so.

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Response to jberryhill (Reply #28)

Fri Nov 8, 2019, 01:02 PM

31. thank you!

why do i always feel like eating a small cheese wedge when i read your posts?





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Response to unblock (Reply #31)

Fri Nov 8, 2019, 01:19 PM

33. Beats me

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Response to Bev54 (Reply #4)

Fri Nov 8, 2019, 10:45 AM

16. From McConnell's own mouth: "The chief justice is the chair. And senators are not allowed to speak"


Many scholars who have studied the impeachment process view the chief justice’s role at an impeachment trial as similarly ceremonial. But on Tuesday, McConnell played up the power that Roberts has — noting that he would rule on any motions made by the opposing sides.

“The chief justice is in the chair. And senators are not allowed to speak,” McConnell said. “So, that’s the way it will be handled in the Senate.”

https://www.washingtonpost.com/politics/senate-impeachment-trial-to-test-chief-justice-who-has-tangled-with-trump/2019/11/05/1c220a7e-fb3e-11e9-ac8c-8eced29ca6ef_story.html

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Response to hlthe2b (Reply #16)

Fri Nov 8, 2019, 10:58 AM

21. it remains to be seen how this plays out.

but he's *not* a judge or justice in this role, and it's *not* a trial under the usual rules and practices of judicial trials and federal law.

even though a member of the judicial branch is "presiding" over it, the usual rules of evidence and relevant testimony and materiality and so on do officially apply. it's a political trial conducted under the rules of a political body.

the senate *may* delegate certain powers to roberts and *may* instruct him to make certain decisions and *may* even instruct him to make it look a lot like a judicial trial, and roberts *may* actually exercise those delegated powers in some particular instances.

but that's a lot of ifs, and i'm not holding my breath for roberts to keep it an objective, impartial trial that doesn't stray into smears of democrats.


in fact, i'd make a big bet that the senate *will* use this as an opportunity to smear democrats, biden at a minimum, but i doubt i'd be able to find anyone fool enough to take that bet.

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Response to unblock (Reply #21)

Fri Nov 8, 2019, 11:02 AM

23. Roberts has the authority and ability to make the role as he wishes. READ THE ARTICLE

I have repeatedly provided to you OR read Laurence Tribe's authoritative book on impeachment

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Response to hlthe2b (Reply #23)

Fri Nov 8, 2019, 11:12 AM

26. what a waste of time, reading an article that adds nothing and supports my view.

"although it is likely that he would kick weighty decisions to senators for a vote."

at several points in the article it makes it clear that roberts is likely to tread as lightly as possible and to avoid making decisions of consequence. it noted that one question rehnquist ruled on was that the house managers shouldn't say the senate was like a jury in this case, because it's also like a court. wow, major issue that

roberts is extremely unlikely to prevent the senate from diving into biden-smearing territory.

there's nothing in the article that suggests otherwise.

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Response to hlthe2b (Reply #16)

Fri Nov 8, 2019, 02:20 PM

35. It is up to Moscow Mitch what the rules are

and he may decide to call witnesses. I read the rules on the trial in the Senate and they can compel witnesses to testify at trial. I am worried that some of those that have refused house subpoenas may be called by the senate and lie their asses off to support Trump. I do not trust the republiscums at all, they will do anything to hold onto power. Justice Roberts is only to ensure procedure is properly followed.

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Response to LAS14 (Original post)

Fri Nov 8, 2019, 10:56 AM

20. Don't know if it's been discussed, but you are correct in your suspicion.

That is exactly what they will do, try to make this all about Biden and cover up everything done by this criminal pretend administration. Expect nothing less than this complete travesty of a trial. Roberts will allow them any trope and come down on Dems often to also help sway the vote and perception. One just hopes that enough truth will be exposed in the House and that the Dem Senators will be on fire and stop the planned firebombing of the truth and promotion of total lies that will be the Russian Repug plot to exonerate their traitorous criminal.

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Response to LAS14 (Original post)

Fri Nov 8, 2019, 01:13 PM

32. Once the impeachment begins CJ Roberts will preside and have total conteol

The constitution is quite clear about charges, quorum, etc.

The CJ presides, period. There is no role for Majority Leader or votes by Senators in controlling the trial process.

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Response to grantcart (Reply #32)

Fri Nov 8, 2019, 01:31 PM

34. That is not the case for the sort of questions we are talking about

Yes, the constitution spells out the high-level structure of the impeachment and trial process, such as the number of votes required for removal.

But it doesn't go into rules of evidence or whether irrelevant or immaterial matters can be discussed. Such as whether the defense can use the trial as an opportunity to smear a political opponent.

The construction says the Chief Justice "presides", but it doesn't specify any particular powers to go along with that. Moreover, the constitution also states that the power to conduct a trial belongs solely to the senate.

In any event, the trial will be held in accordance with the rules of the senate, which are always subject to change by the senate. They can't overrule the constitution for things like what's needed for a quorum or removal, but they can certainly say that Donnie and his lawyers can bring "evidence" to try to smear Biden.

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Response to unblock (Reply #34)

Fri Nov 8, 2019, 11:20 PM

40. Wrong on so many levels, where to start?

1) There are 44 rules of the Senate and once they are implemented they are virtually never changed. The current rules were adopted in 2000 and unchanged since then (except for the addition of the rule 43 on earmarks). The so called "nuclear option" has been used twice on a very narrow basis pertaining to cloture on judicial appointments (Dems making a majority vote for all federal appointments except the SC and the Republicans to include the SC). The rule on cloture is the most frequently changed rule and has been changed (as far as I know) only a few times in over a hundred years. Besides the 2 narrow changes referred to above there have been a few changes over the last 100 years, the last being in 1975.

Besides the few changes in cloture the Senate Rules remain unchanged after adopted. Any change would require a 60 vote margin.

However during an impeachment trial the Presiding Officer of the Senate doesn't have the power to introduce any rules changes because the regular business is suspended and the floor of the Senate is handed over to the presiding officer of the court. In other words no rule change or legislation can be introduced once the trial has started and the floor of the Senate has been given to the Presiding Officer of the Court to conduct the trial.

2) As to the assertion there are no rules specific to the impeachment of the President, that is also not based on fact.

a) The constitution names the Supreme Court Justice as the presiding officer of the Court



When the President of the United States is tried, the Chief Justice shall preside



b) The Senate rules on impeachment are in 12 parts and are very explicit. For example it details the exact time the impeachment trial will start with the oath of jurors:



At 12:30 o’clock afternoon of the day appointed for 108
the return of the summons against the person impeached,
the legislative and executive business of the Senate shall
be suspended, and the Secretary of the Senate shall administer
an oath to the returning officer in the form following,
viz: ‘‘I, ——— ———, do solemnly swear that the return
made by me upon the process issued on the —— day of
———, by the Senate of the United States, against ———
———, is truly made, and that I have performed such serv
ice as therein described: So help me God.’’ Which oath shall
be entered at large on the records.



c) The Constitution (as referenced above) details that the CJ of the SC will be the presiding officer of the court.

When the impeachment starts the presiding officer of the Senate ceases having power (as all business is suspended, see above) and the power of the floor of the Senate goes to the Presiding Officer of the Court, which in the case of the President is the Chief Justice of the Supreme Court.

The Presiding Officer of the Court has the following powers and responsibilities, per Senate Rules



the
Presiding Officer on the trial shall direct all the forms of
proceedings while the Senate is sitting for the purpose of
trying an impeachment, and all forms during the trial not
otherwise specially provided for. And the Presiding Officer
on the trial may rule on all questions of evidence including,
but not limited to, questions of relevancy, materiality, and
redundancy of evidence and incidental questions, which
ruling shall stand as the judgment of the Senate,





It is clear that the CJ of the SC will have sole authority to rule on evidence and whether or not they are material. Those rulings could be appealed to the entire Senate:



unless
some Member of the Senate shall ask that a formal vote
be taken thereon, in which case it shall be submitted to
the Senate for decision without debate; or he may at his
option, in the first instance, submit any such question to
a vote of the Members of the Senate. Upon all such questions
the vote shall be taken in accordance with the Standing
Rules of the Senate.




The rules of who is in charge are clear: Chief Justice Roberts will be the Presiding Officer of the Court and he cannot be interrupted by the Presiding Officer of the Senate until the trial is completed because all Senate business is suspended until the trial is over.

The power of the Presiding Officer on admissibility of witnesses and evidence is clear, Chief Justice Roberts will make all rulings.

Appealing any particular ruling of the Supreme Court is possible but would follow the standing rules of the Senate requiring a 60 vote majority for passage. There may be a couple of Senators who might want to try and over turn the legal decision of the Chief Justice (actually I don't think any will) but there can be no expectation that a majority would overturn a ruling on the material relevance of evidence in an impeachment trial, let alone a 60 vote majority.

Any attempt to turn the trial into a circus with non relevant conspiracy issues, etc, will come under the authority of Roberts.

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Response to grantcart (Reply #40)

Sat Nov 9, 2019, 01:55 AM

41. Thanks, very informative post.

Not sure where we're really disagreeing. I said the trial happens per the rules of the senate, you have helpfully provided some information on those rules.

Of particular note is that the senate rules provide for Roberts to rule on matters of evidence, relevance, and materiality.

In practice, though, Roberts is likely to follow rehnquist's lead and try to avoid making "big" decisions. This is in part due to not wanting to be overruled (admittedly improbable as you point out) but also because this is fundamentally a senate proceeding under senate rules, so he's likely to defer to what the senate wants, even if he officially has the power to say otherwise.

As to the specifics of allowing Biden-smearing testimony, I very much doubt Roberts will prevent it.

Yes, he will prevent something obviously irrelevant like testimony about Obama's birth certificate, but he's not likely to prevent something about the substance of what Donnie claims he was trying to accomplish in the phone call. He'll decide that it's up to the senate as jury to decide if such matter are relevant to Donnie's defense.

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Response to LAS14 (Original post)

Fri Nov 8, 2019, 03:57 PM

36. Dems have veto power over who they pick

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Response to lame54 (Reply #36)

Fri Nov 8, 2019, 05:30 PM

38. In the senate?????? nt

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Response to LAS14 (Reply #38)

Fri Nov 8, 2019, 06:24 PM

39. No - am thinking of saturdays witness list deadline

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Response to LAS14 (Original post)

Fri Nov 8, 2019, 04:28 PM

37. It will be a show alright.

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