I have a strong suspicion Trump incited the insurrection. But the case was never competently made out by the impeachment managers, as the requisite evidential threshold was never met. At best, what the impeachment managers established was that there was an insurrection, but they failed woefully to establish that Trump incited it.
Though made in an impeachment proceeding, the allegation of incitement is criminal in nature, and therefore requires a more objective and non – arbitrary standard of proof, which I don’t think was met in this case. To start with, to establish the criminal allegation of incitement of insurrection, direct evidence of eye witnesses and investigators needed to have been called, to link Donald Trump directly with the events at the Capitol, and to tender all the electronic clips of evidence tendered by the impeachment managers. This would then have afforded Trump the opportunity of testing the veracity of the oral and documentary evidence tendered against him through cross examination.
The absence of the opportunity for cross examination means that all the heaps of oral and documentary evidence adduced against Trump lack probative value, are useless, and must therefore be disbelieved. The absence of direct evidence by persons who saw, and the absence of an opportunity for cross examination amount to a gross denial of Trump’s right to fair hearing. That is a point of universal law, and Trump’s lawyers made that point most devastatingly. And it is a point the Senators acting as jurors in the case, and whose task is to make a factual determination of the cogency of the allegation, are not likely to miss.
The impeachment managers were no witnesses who could be cross examined; they were neither at the White House where Trump was, nor with the insurrectionists on the grounds of the Capitol. Therefore, their efforts to give evidence from “the bar”, oral and documentary, were prejudicial and laughable.
The Senators themselves who are serving as jurors are not expected to judge on the basis of what they themselves personally saw or knew, but on the basis of facts properly made out by the contending parties. The bench of justice is raised so that judges may see but not say, and lean not to either side, and never making for a party a case which the party itself never made. For they are not expected to descend into the arena of conflict. Where the jurors to depart from this time honoured standard, then, justice cannot be said to be the result of such an exercise.
Besides, I expected to see an investigation report of the insurrection tendered directly by an investigator, together with a statement obtained from Trump himself, who will then be availed the opportunity to test the investigation report via the facility of cross examination. Why were vital witnesses, including makers and producers of visual clips, withheld?
The whole procedure is riddled with doubts. And those doubts must now, regrettably, be resolved in favour of Trump. The impeachment managers bungled the case.
Kenneth Ikonne, SAN writes from Nigeria