Trump Defense Team Needs to Start Dismantling Gaps in House Evidentiary Record

On Episode 127 of War Room: Impeachment former White House Cabinet Secretary Bill McGinley joined Stephen K. Bannon and Raheem Kassam to recap the first day of the Senate trial and discuss changes President Trump’s team must make moving forward.

“You’ve got to tell me if McConnell blinked or not,” Bannon said to McGinley. “It was about the evidence coming over from the House case. What happened yesterday? Because I thought blinked on this.”

“At first blush it looks like a blink,” the former Secretary responded. “But as you look at it, there’s still some opportunities here.”

“Why is it a big deal?” Bannon asked.


“The reason is is because whatever the House compiles as its record is going to form the foundation for the closing arguments that the House Democrats are going to use to argue for the conviction of Donald John Trump,” McGinley explained. “So that record that they’re going to introduce into the Senate trial, yesterday the original text of the rules said it will not be admitted into evidence until everything is done. And even then it’s going to be done by motion. I felt that that was a very fair way to proceed given the criticisms of how the House Democrats had conducted themselves during the impeachment relying on hearsay, opinion, labels, and other things that are inherently unreliable to go into evidence.”

“What the change is,” he continued, “is that now they’ve almost built in a presumption. So instead of saying it may be introduced into evidence, it says it will be introduced into evidence. However it is subject to objects about hearsay, other evidentiary objections.”

“What that means is that if the President’s lawyers are scrutinizing the House record, they are going to find under the federal rules of evidence – that’s kind of the anchor for their arguments – why some of the evidence the House [Democrats] are using should not be admissible in the trial.”

“Democrats can’t have it the same way,” the former Secretary elaborated. “They can’t say that the Senate is a unique institution that gets to operate in it’s own universe, and then say: ‘well our job is to be prosecutors; our job is to use the federal rules of evidence; our job is to say that this trial needs to have all sorts of evidence.’ You can’t have that contradictory argument.”

“This record needs to be scrutinized by the President’s lawyers,” McGinley emphasized. “Objections need to be made. And make the House Democrats defend what they’re [saying].”

“This is going to be highly choreographed,” Bannon said of today’s session.

“It’s going to be the legal equivalent of synchronized swimming,” McGinley added.

Bannon clarified with the former Secretary: “You’re saying Pat Cipollone, Jay Sekulow, Pam Bondi – you expect them to be popping out of their seats all the time to break the momentum, to break the choreography, to break [the Democrats’] rhythm and object.”

“I don’t think they’re going to be able to object during the House Democrats’ presentation of their case,” McGinley explained. “They need to have all of these associate level lawyers who are supporting the team listening and basically flagging for them all the misstatements; all of the places where Chairman Schiff, Chairman Nadler, and the others make their summaries, make their labels, fill in the evidentiary gaps from the House record. So that when they get up, they can cite chapter and verse.”

“But when they do that, they need to read the transcript,” he elaborated. “‘Chairman Schiff said this. This is why this is wrong.’ So it needs to be not only a very well choreographed presentation of the President’s case, but they also need to start dismantling all the gaps in the evidentiary record produced by the House, all of the flaws in the arguments made by the House Democrats. This has to be not only a tight theory of the case that they present, but a dismantling of the other side.”

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