'You don't *ever* have jurors vote on a dispositive question at the *start* of a trial...'

[triron]

Link to tweet

[former9thward]

1. A juror is also the judge in this trial.

That never happens either. This is not a court trial.

[Laelth]

2. Interesting agreement.

Not the way I would have played it, but I assume that Leader Schumer knows what he is doing.

From my perspective, “constitutionality” is a question for the SCOTUS, alone. The Senate can proceed with the trial, and it will proceed with the trial. It will reach a verdict (as it is empowered to do). Only then, once the trial is concluded would the SCOTUS have jurisdiction (if an appropriate court challenge were brought) to rule on the “constitutionality” of what the Senate had already done. Most likely, the SCOTUS would dodge on the grounds of separation of powers (or political question) and refuse to rule on the case, if it were ever brought (which it probably would not be).

Not sure what Schumer is thinking, here. I suppose he’s dismissing the constitutionality argument up front so that he can get all Republican Senators on the record on the key question—should Trump be convicted of incitement to insurrection and then be barred from any federal office hereafter.



-Laelth

[The Velveteen Ocelot]

6. Legal questions can be certified to the Supreme Court from other courts,

so I wonder if it's possible for the Senate to certify the constitutionality issue to the Supreme Court as well. They try whenever possible to avoid political questions, and impeachment is outside their normal bailiwick, but as a pure constitutional question I wonder if they would consider it?

[Laelth]

8. Very interesting.

Courts, obviously, can certify questions to higher courts. I wonder whether the Senate can do the same? There’s a first time for everything, of course.



I love the way your mind works.

-Laelth

[FreeState]

3. Seth lost me a while ago

I'm ready for him to disappear. Nothing he ever hypes happens. He is in over his pay grade.

[sfstaxprep]

4. He Gives A Short Time High

But then you come down, back to reality, and realize that NOTHING will come of whatever he said.

[The Velveteen Ocelot]

7. Me, too. When I see his overheated speculations I just think,

"Oh, that guy. Never mind."

[The Velveteen Ocelot]

5. This is not a court trial. Whole different set of rules, different goal.

This impeachment "trial," which is more accurately a performance review panel (kind of like when a board of directors decides whether to boot their chair), is especially strange because the "jurors" are also witnesses and victims, as are the impeachment managers - the "prosecutors" - and the whole thing is taking place at the scene of the incident that is the basis of the proceedings. It should not be thought of as anything like a court trial; most analogies are off base - as is this one.

The initial motion is a claim that the impeachment trial should not proceed because it's unconstitutional. It's a weak argument but it would be the equivalent of a motion for summary judgment in a judicial trial, and that motion would be decided by the judge before the case was ever presented to a jury. But in an impeachment trial that argument has to be decided by the senators, the "jury," because the presiding officer's power extends only to calling balls and strikes relative to the senate's rules. So it has to be done that way. The senators will likely vote narrowly along party lines, with a few GQP defectors, to reject that argument and hear evidence. The point that thereafter the GQP senators won't pay attention to the evidence because they've already decided the whole process is invalid won't be because of that opening motion, but because they already decided that point weeks ago.

This is not like a normal court trial in almost any respect and shouldn't be compared to one.

[StarfishSaver]

9. Dispositive issues ARE ruled on at the beginning of trials all the time.

That's what judges do.

In this instance, the senators are both judge and jury.