Trump’s First Impeachment: When A Federal Prosecutor Tangles With Jury Nullification And Loses….

This past weekend, I had occasion to critically read Adam Schiff’s Midnight In Washington. Schiff served as the lead House prosecutor for then-President Donald Trump’s first impeachment trial, and Midnight in Washington is his account of Trump’s “indictment” by the House and his impeachment trial in the Senate. Schiff’s account is telling. Regardless of whether you accept his fanatical belief in Trump’s guilt, Schiff’s book is an implicit confession that the House lost Trump’s impeachment trial because the jury (the Senate) had the power to nullify or, more accurately, determine what the law is.

Schiff’s tears over this outcome drench the book, and I personally found his reaction to the verdict to be a fascinating secondary study to my real purpose in reading his book.

To comprehend my fascination, consider several preliminary observations.

1. Schiff is a former federal prosecutor who achieved fame when he successfully prosecuted Richard Miller – an FBI agent who allegedly turned into Soviet KGB spy and revealed the FBI’s counterintelligence methods to KGB handlers – for a third time and secured his conviction. Schiff’s career as a federal prosecutor was primarily focused on prosecuting government officials. In other words, he is no slouch.
2. Since Schiff became a Congressman in 2001, he has been involved in quite a few Congressional investigations. He apparently has never stopped thinking like a federal prosecutor even though he’s a Congressman now – a conclusion supported by his insistence on finding someone to blame in every Congressional investigation that he’s been involved in.
3. Schiff served as the lead House prosecutor for the successful impeachments of federal judges Thomas Porteous and Samuel Kent.

Schiff and his Democrat colleagues wholeheartedly believed in Trump’s guilt, and their conduct of the House investigation was fanatical in their pursuit of any evidence to support it. Trump did not help matters from a merits perspective. By publicly releasing his call transcript with the Ukrainian president, Trump gave Schiff all of the smoke and fire that he needed to keep on impeaching him.

For his part, Schiff settled in to systematically prosecute Trump on the merits of what he perceived as criminal conduct without realizing that Trump either intentionally or unintentionally had abandoned defending his conduct’s merits and was mounting a political defense. Thus, provoked by Trump Congressional allies involved in the investigation, Schiff began to commit procedural error after procedural error. He held depositions in the basement of the Capitol and Congressional office buildings, ostensibly to protect the integrity of the investigation. He only gave 24 hours’ notice or less to the Republican House Committee representatives on who would be deposed on a given day.

Trump and his allies quickly realized that the procedural errors were to good to pass up. They publicly accused Schiff of writing the whistleblower complaint to protect Joe Biden, and they painted a picture of corruption around Biden and Schiff. They repeatedly and publicly claimed that they were not being given access or fair notice in the investigation, and a group of House members crashed a deposition claiming that they had discovered Schiff’s Star Chamber on livestreamed video.

When Schiff’s committee finally called witnesses, Trump was ready, attacking their testimony as rehearsed behind closed doors with Schiff and his fellow Democrats. His Congressional allies moved to have Schiff recuse himself from the investigation on the grounds that he was corrupt and a material witness.

In other words, Schiff miscalculated the effect of his procedural mistakes.

Hindsight is 20-20. Jury nullification sadly does not exist in criminal court, and Adam Schiff certainly never tried a case where he had to contend with a jury who could interpret the law rather than being blindly bound to what a judge instructed them was the law. Schiff never had to defend the fairness of his investigatory conduct to a jury with the power to acquit in the face of all the evidence. His impeachment prosecutions of Judges Porteous and Kent gave him no idea on what was in store for him. Thus, Schiff prepared as a federal prosecutor normally would, fixating solely on the evidence and dismissing the procedural flaws as unnecessary evils that he would not have to defend later to a factfinder.

Schiff, however, ignored that the Constitution actually empowers the Senate to engage in jury nullification in an impeachment trial – something that Trump either knowingly or unwittingly discovered. No body of law and no court sets the definition of “high crimes and misdemeanors” contained in Article II, Section 4 of the Constitution. Chief Justice John Roberts had no authority to instruct the Senate to follow anyone’s interpretation of the law. In other words, only the Senate can give meaning to that definition through the impeachments that it tries. It judges law and and fact.

Thus, despite offering a hastily cobbled together merits defense to the impeachment charges against him, Trump and his legal team focused primarily on attacking the unfairness of Schiff’s procedural errors and capitalizing on their theme of corruption – a defense that he would not comprehend.

In his book, Schiff complains that he presented an air-tight merits case to convict Trump but that the Senators chose to ignore their oaths to the Constitution. His tears ignore the fact that Trump was not the only one on trial before the Senate.

A jury with the power to decide law and fact serves as the ultimate check on corrupt prosecutorial misconduct. Schiff’s investigation and the House’s indictment of Trump was conducted as a political hitjob with no regard for procedural fairness. Trump smartly put those issues and their grand architect on trial at his own impeachment trial and in the public sphere. It earned him an acquittal.

To this day, Schiff does not know what happened to his impeachment case. He remains convinced that he would have won it if he had not tried it to a jury full of traitors. He is still oblivious to the fact that his procedural misconduct and his steps to make the investigation as unfair as possible were the impetus to acquit Trump.

Advocates for jury nullification will not be pointing to Trump’s first impeachment trial as a shining example of why it should be permitted in criminal court, but we should all be studying it and Adam Schiff’s crybaby reaction. He may never realize it, but he himself became the wrongdoer in his political delirium. The Senate in its role as a jury held him accountable.

So should juries do to similarly misbehaving prosecutors in criminal cases.