There is a now-relevant parallel here to the difference here between matters before a judge & matters before a jury. Judges are far more reluctant to strike testimony or evidence if they are the only recipients of it, with the theory being that they are really smart about ...

law stuff & will know what they can & can't consider. For instance, there is a long-held rule that a fact witness can't make legal arguments, only a lawyer. So what will happen in a motion for summary judgment, where the entire proceeding is on paper, will play out like this:
1) Defendant makes a motion for summary judgment. It includes a sworn declaration from some fact witness.

2) The declaration includes all sorts of legal arguments about why the defendant should win. Often the declaration includes arguments the brief didn't even make.
Defendants (especially DOJ-represented ones) often do this to get around the word or page-limits placed on briefs.

3) Plaintiff moves to strike the declaration for its inclusion of inadmissible legal arguments.

4) Judge denies the motion to strike, on the grounds that a ...
judge is a sophisticated consumer of evidence & can choose what to consider & what to ignore, unlike a jury.

The legal fiction behind this impeachment exception is that Senators are also smart enough to know what to listen to & what to ignore. Now, that may not be ACCURATE, ...
but, like all legal fictions, in the eyes of the law it is, just like the idea that an overworked judge can suss out & apply on his own every evidentiary issue in complex written testimony in every case.

The U.S. legal system is adversarial expressly because judges are human ...
too, but legal fictions like this are still prevalent to represent the idea that when it comes down to it, it's really only about keeping the simple jurors from being confused. So a Senator might have a reasonable objection to being presented with hearsay evidence, but unless ...
that same Senator is willing to advocate that that the rules of evidence must apply as strictly to matters before judges as to matters before juries, then that's not the Senator's real objection.

Additionally, it should be noted that it is logistically impossible for a ...
Senator to disregard any testimony on the grounds that it is "hearsay" in this case & still vote to acquit Trump on substantial grounds. Literally the entire defense substantive case rests on hearsay. Every time a defense lawyer tells you how Trump felt, that's hearsay. Every ...
time a defense lawyer tells you what Trump did in the White House, that's hearsay. The House Managers are literally the only people to have introduced admissible evidence in this case. So if you're complaining about hearsay, you can't acquit Trump by saying you were convinced ...
by his lawyers' defense.

A few caveats here. First, I am ignoring the people who will acquit him saying that he can't be impeached because he's not President. That's not an acquittal based on the substance. That's a purely legal question where evidence plays zero role.
Personally I think it's monumentally stupid, but that's not the focus of this thread.

Second, there are plenty of other reasons things like hearsay don't apply in impeachments, which I & other people discussed at length last January. Tl;dr this is a political proceeding, not ...
legal one, just like every other impeachment. So the above analysis isn't the only response to "but but HEARSAY." It's just one that hasn't seen a lot of coverage because it's so in the weeds, but it's still a clear example of hypocrisy by the people complaining about hearsay.

More from Law

Pretty much every professional field EXCEPT police have clear, rigorous, transparent consequences for unethical behavior, negligence and malpractice.


The idea that we can "disbar" lawyers but not police is absolute foolishness.

All the factors that make disbarment a necessary tool for lawyers apply to cops... except that cops don't need to be qualified in the first place.

It is a rank absurdity of the criminal justice system that one needs to be educated and certified with a degree in order to argue on behalf of someone's life in court, but to have no qualifications necessary to detain, assault, or prematurely end that same life.

There are countless circumstances in which a lawyer's unethical behavior will result in them not only losing their job but never being able to practice it again.

But corrupt and murderous cops can be rehired indefinitely.

A lawyer's entire career can be ended forever if they were found to have knowingly put someone on a stand to lie.

Police officers however are allowed to lie in court on the stand under oath.

So much that lawyers aren't penalized for putting cops on the stand to lie.
This is what he wants to do.

No matter how this trial plays out, the US will remain divided between those who choose truth, Democracy, and rule of law and the millions who reject these things.

1/


The question is how to move forward.

My mantra is that there are no magic bullets and these people will always be with us.

Except for state legislatures, they have less power now than they have for a while.

2/

The only real and lasting solutions are political ones. Get Democrats into local offices. Get people who want democracy to survive to the polls at every election, at every level.

It’s a constant battle.

3/

Maybe I should tell you all about Thurgood Marshall’s life to illustrate how hard the task is and how there will be backlash after each step of progress.

4/

Precisely. That's why Thurgood Marshall's life came to mind.

We are still riding the backlash that started after the Supreme Court decision in Brown v. Board of Education.

That's why I keep saying there are no easy
One of the judges this story mentions is William Cassidy, who was promoted from an Atlanta IJ position to a BIA member position in 2019 by the Trump DOJ. Cassidy has an awful history that has been well-documented, but I'm still enraged reading this reporting.


The story notes that the EOIR Director served as an ICE attorney in Atlanta and practiced before Cassidy for years. And it points to FOIA records unearthed by Bryan Johnson showing they remain friendly.

A trove of complaints against Cassidy was published by AILA in 2019 after FOIA litigation. They generally show misconduct, substantiated in the record, followed by "written counseling" etc.

One way Cassidy could avoid discipline is by turning off the recording device during the hearing. If he made a lewd or offensive comment off the record, all the EOIR would do is listen to the recording. If it's not there, the complaint is "unsubstantiated" https://t.co/wUeBPEEbpV


In that case, Cassidy joked about a detained immigrant saying he missed his wife. The complaint was dismissed because the ACIJ found "no levity or joking" in the comment.
1/n How come we still have academics sustaining narratives of #obesity rather than of how real people find value & meaning in everyday lives? Revisit @whatsthepont on @tobyjlowe / @snowded & accept criticising "neoliberal" does not make things

New out 🤯 A review which says lots about the academic context in which it was written - with its embedded behaviorist fixations on just implementing *better* - with complete disregard for the unintended consequences of treating "agency" as a dirty word

In all #becausehuman fields, we see justifiable professional kick-back at reductionist agendas driven by a focus on #obesity & nonsensical CMO guidance of 60 min of moderate-to-vigorous physical activity (MVPA) per day for healthy growth and development


What's fundamentally missing is not just a respect for complexity. It's respect for Homo-Narrans - for the ordinary, everyday story-telling folk all around us whose aspirations & dispositions provide the context in which we find meaning, purpose & value

We don't need spurious arguments against initiatives... but let's consider ethics & unintended consequences - on which, see @snowded (especially around epistemic justice) #becausehuman
https://t.co/gu97xDEamB
https://t.co/E1GzCdCfLA
https://t.co/bKowDAgARQ
https://t.co/evzYMBPwvZ

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