By Chris Satullo

Since Michael Moriarity (as lawyer Ben Stone) first rose for the prosecution in the inaugural episode of Law and Order in 1990, the iconic series has aired 456 episodes. Its various spinoffs have added another 697. 

Taking into account all the reruns, the number of times this franchise has explained normal U.S. criminal procedure to its audience rivals the tally of stars in a small galaxy.

Yet, somehow that’s not enough.

What if we add all the episodes of L.A. Law, Boston Legal, The Good Wife and The Practice? What the heck, go retro and toss in Perry Mason and Matlock as well.

Still, not enough.

Even with all the basic legal training those gems have offered viewers over the decades, millions of Americans apparently do not possess even the rudimentary knowledge needed to see through the specious claims of President Trump’s impeachment defenders.

Many of those claims are nonsensical (as the many lawyers-turned-lawmakers who assert them must surely, deep down, know).  Other arguments have some grounding in fact, but are marred by the bad faith of those who offer them.

The nonsense and hypocrisy have been piling up at our feet as the Senate “trial” of the House’s articles of impeachment goes on.  Time for a cleanup in aisle five.

First, to the nonsense:

The President is being denied constitutional due process.

The Fifth and 14th Amendments state no person shall be deprived “of life, liberty or property without due process of law.”

OK, excellent principle. Indispensable.

But tell me this: Is President Trump being threatened with the death penalty? No.  Is the U.S. House proposing he be sent to jail? No. Is the Presidency the personal property of the person who happens to be sitting at the Resolute desk in the Oval Office? Clearly not – even though the current tenant seems unclear on that point.

All that’s at stake – and it’s a lot, but not as dire as individual jeopardy to life, liberty or possessions – is whether Donald J. Trump deserves to stay in his current job.

The Constitution is clear: Impeachment by the House and subsequent trial in the Senate are in this sense different from an ordinary criminal trial where the defendant’s life, liberty or property are at risk. You certainly want the House and Senate to honor the principles of fair process, but they have clear constitutional authority to set the rules for their proceedings. (Even when, as with Mitch McConnell’s Senate, you slap your forehead at the hypocritical chutzpah of it all.)

The President is getting less of a chance to defend himself than we give accused terrorists.

This is where I really wish more people had been paying attention while Law and Order was on.

While impeachment is not an ordinary criminal proceeding, its two parts (House vote on charges then Senate trial) offer a clear analogy to usual court procedure.  Understanding this would have helped more people see through the Trumpian fog machine. 

I’m simplifying a bit, but basically two paths exist for an allegation of a crime to get to a court trial.

The most common is what, in my home state of Pennsylvania, is called a preliminary hearing (also called an evidentiary or probable cause hearing).

Its sole purpose is to determine whether enough evidence of an alleged crime exists to justify holding a trial. Judges at this stage may dismiss charges they find baseless, but the vast majority of the time, defendants are “bound over” for full trial in some other person’s courtroom.

At preliminary hearings, hearsay evidence is often allowed. A defendant may have a lawyer, who sometimes may cross-examine witnesses. But the defense doesn’t call its own witnesses nor produce exculpatory evidence. That’s saved for trial.

The other pathway is a grand jury – a panel of citizens that delves into the facts of a situation to determine whether the evidence warrants criminal charges. Grand juries can issue an indictment or, less frequently, what are called presentments, summaries of possible wrong-doing that can provide the basis for formal charges.

What’s more – and, hey, this is important – grand juries always operate in secret and are run by prosecutors, not judges. No witnesses are allowed to have counsel present and the target of a grand jury investigation might not even know it’s happening. 

The grand jury is clearly the best analogy for what the House committees led by Adam Schiff did to investigate the Ukraine matter in those now-famous sealed hearing rooms. 

Except President Trump was offered far more consideration than the people being investigated by grand juries across America ever get. His staunch defenders in the GOP caucus got to be present (even though they flat-out lied about that). They got to question witnesses.

The open House hearings that followed roughly resembled preliminary hearings.  Though, unlike in most such hearings, the President’s defenders – Devin Nunes, Jim Jordan, Louie Gohmert et al. – were allowed to spin alibis for him ad nauseam while not only questioning witnesses, but also recklessly impugning their integrity.  House Democrats asked close associates of the President to testify, offering a chance to present exonerating evidence. Instead, he ordered those associates to defy congressional subpoenas.

The House vote to impeach, then, was the rough equivalent of the judge at a preliminary hearing binding the defendant over for trial – in other words, saying there’s enough smoke here to justify further inquiry into whether it’s coming from a real fire.  (Alas, Mitch McConnell is a mighty poor arson investigator.)

This impeachment seeks to overturn a decision of the voters.

Well, yeah.  As a matter of simple logic, any impeachment and trial of an elected official does this.  It’s an extraordinary step saying, “Hey, voters, turns out we maybe got this one really wrong and the damage from letting this unworthy person stay in the office might be so great that we’ve got to take this unpleasant action.” That’s why in our history impeachments have been and should remain rare. It’s fine to conclude, as millions of Americans did in the Clinton impeachment, that the conduct in question, while grievous, was not bad enough to warrant removal from office. But to blast a given impeachment simply because it fulfills the core definition of the term is absurd.

Tell me what criminal statute the President has broken.

Well, you’re right.  Most states’ criminal codes don’t say explicitly that you should not withhold aid to another nation that’s been duly approved by Congress, merely so that you can extort said nation into announcing a phony investigation into your chief political rival.

Could that be because the only person on the planet who could conceivably ever have the opportunity to commit that high crime and/or misdemeanor is the president of the United States?  POTUS has unique powers, so the Constitution lays out a unique process for judging his (or, God willing, someday her) possible abuses of those powers.

We don’t need to hear new witnesses or see more documents. If the Democrats’ case is weak, it’s their own darn fault.  

First, no prosecutor lays out the whole case at a preliminary hearing; just enough to get the case to trial.  Second, no prosecutor in his/her right mind ever declines to pursue helpful new evidence that emerges after the preliminary hearing. No judge ever flatly denies a priori all attempts to introduce relevant and properly obtained new evidence at trial.  (Just imagine how the Sam Waterston character on L&O would flip out if that happened to him.)  So far, it’s this sham of a Senate trial that mocks due process, not the House hearings.

Now on to the bad-faith arguments, which I’ll dispose of more quickly (promise):

The Democrats rushed through this impeachment because of Election 2020 politics.

I tend to agree and I regret it. I would have liked to have seen a deeper and broader probe, at the least into Emoluments Clause violations and Robert Mueller’s exhaustive account of obstruction of justice. Even the appearance of “Let’s get this over with before the Iowa caucuses” was a very bad look.

Still, Trump apologists, c’mon. If Nancy Pelosi had allotted more time for a deeper investigation, you would have just turned around – as you did with Mueller – and whined that it was taking forever and that the Dems were dawdling for political purposes.

You Democrats have been out to get President Trump ever since he won the election.

You mean, like the congressional Republicans who launched the bogus “travel office” probe of the Clinton Administration in the spring of 1993? Or McConnell, who openly declared in 2010 that his job was to make Barack Obama “a one-term president”? Or congressional Republicans who launched eight separate investigations into the Benghazi embassy disaster, seeking to tar presumptive nominee Hillary Clinton?

But merely to note GOP hypocrisy (which is getting to be like noting the rising of the sun) misses the main point.

It’s this: Just imagine that you saw signs, as early as the day after the inauguration, that a man just elected president was unfit for the office – ill-informed, ill-tempered, bigoted, narcissistic and simmering with contempt for the rule of law and the very idea of constitutional limits on his power.

 In such a situation, wouldn’t it be perfectly logical (patriotic, even) to be on high alert from Day One for evidence of abuse of power?

Let me end by noting a startling coincidence that just might be a sign the universe is sending to our troubled Republic.

On the original Law and Order, an actor named Steven Hill for 10 seasons played the District Attorney, a laconic mensch who was a stickler for ethics. 

That character’s name on the show?

Adam Schiff.

Chris Satullo, a civic engagement consultant, is a former editorial page editor/columnist at The Philadelphia Inquirer, and a former vice president/news at WHYY public media in Philadelphia.