Impeachment Trial Analysis, Day 11: ‘The Real Audience Is America’

As President Donald Trump’s impeachment trial has unfolded, Courthouse News has been reaching out at the close of each day to prominent attorneys, scholars and other experts in the legal community for analysis on the historic proceedings. Joining us after closing arguments is Katie Phang, a trial lawyer and MSNBC commentator.


WASHINGTON (CN) – There may be little mystery any more about the results of the vote that will end President Donald Trump’s impeachment trial, which heard from no witnesses and gathered no new evidence.

Trial attorney and frequent MSNBC commentator Katie Phang.

That did not diminish the stakes for Monday’s closing arguments for Katie Phang, a trial attorney and frequent MSNBC commentator.

“I think that, a while ago, the conclusion was drawn that the real audience is America, and not the senators,” Phang noted in an interview.

In that regard, the House’s lead impeachment manager Adam Schiff served as a strong emissary for those arguments, winning praise even from GOP senators for his oratory and being praised by Senate Minority Leader Chuck Schumer brought out the superlatives to call it “just about the best speech” he heard in four decades in Washington.

Phang was also a fan: “I thought Adam Schiff killed it,” she said.

What was the most significant part of the proceedings for you?

I’ll say it this way: Objectively, as a trial lawyer, as someone who’s had to be in the trenches, that’s had to get up in front of juries and judges and make arguments to advance on behalf of a client, I thought Adam Schiff killed it. I really did, and the reason why: It’s [that] he wove facts in evidence into his argument, which any good trial lawyer is supposed to do when you do a closing, but the fact that he would say something like, ‘The Founders gave you an oath, and they meant for you observe it. Now, do impartial justice and convict him.’ … That’s exactly what you’re supposed to do, and it was great because everybody took that oath, including Chief Justice Roberts, and we all know that impartial justice hasn’t happened so far. It has not been the traditional trial proceedings we’re all used to seeing as a lawyer, and so I thought that that really was what would, I think, in another non-rigged setting, what would carry the day. But you know, I think that the inevitable conclusion will be an acquittal on Wednesday. I mean, my dream is for somebody to find a conscience sometime between now and Wednesday, but I don’t know if that’s going to happen.

Do you think Adam Schiff expects any [senators] would be moved to conscience, stirred by his oratory, or is he just saying, ‘Look, history is watching’?

Again, I think that if you had the more receptive audience in the GOP senators perhaps it would sway them, and it would touch their conscience. But I think that a while ago the conclusion was drawn that the real audience is America, and not the senators. And I kind of emphasized this when I did my rounds of the shows this weekend: I’m not… I was deflated on Friday by the vote, was not surprised, had held out some hope that maybe the Dems could eke out a little bit, at least, maybe one witness, right? Just the John Boltons of the world kind of thing. But, you know, I wasn’t totally deflated about it because I know that there’s going to be Supreme Court rulings between now and November. And I know that there’s going to be the continuing investigations by state and federal law enforcement and other types of regulatory agencies between now and November. And I know that Lev Parnas and Igor Fruman still have audio and other stuff that we haven’t seen. So I still have some hope that the more information that gets disseminated, the more that the voters are going to hear and see. And you know, really it is an indictment of the GOP people that the senators that voted not to have evidence, witnesses and documents. And I think that you cherry-pick the best that comes out about the worst of Trump, and you use that against those senators when there may be up for re-election. Some of those are actually this year. Let’s see what happens.

To put it bluntly, do you believe that separation of powers in the United States will withstand Trump’s acquittal?

I am more than a little bit disturbed about the precedent that was just created by the proceedings themselves, in the absence of substantive law, and listen, that is a little bit of an argument that was made about a failure on the House managers’ part to be able to secure some type of substantive ruling prior to perhaps transplanting articles—or during this whole proceeding. I’m concerned that we have antiquated rules of procedure that govern the Senate impeachment process. There’s an absence of substantive law. This impeachment process created none. So the takeaway has been what? That you can now do in impeachment without calling witnesses? Well, it didn’t it didn’t betray anything in terms of violating something other than what would be the equivalent thing in our world, which is stare decisis, right? It’s not like you violated a statute. You don’t violate a rule. You didn’t violate precedent. You just basically said, ‘Eh, I’m going to change the way that we’re doing this… but it ultimately is going to be, you know, an impeachment trial. And that’s exactly what they did. So, the fact that everybody cited to the reality that in all the prior impeachment trials, you had witnesses and other things presented was great precedent, I thought. … You know what really was troubling to 30,000-foot view: How many of [the GOP senators] are lawyers?


[Editor’s note: Stare decisis is the legal principle that obligates courts to follow historical cases, or precedent, when making a ruling in a similar case.]

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