AU must act on Zimbabwe – Zimbabwe Vigil Diary – The Zimbabwean

https://www.flickr.com/photos/zimbabwevigil/48849150892/sizes/m/

The MDC says that the African Union must take action before the situation in Zimbabwe spirals out of control. It urges the organisation to exercise the UN recognised ‘right to protect’.

The party’s deputy spokesman Luke Tamborinyoka said the situation provided a test for Africa. ‘Our brothers and sisters on the continent cannot just watch while citizens are brutalised and harassed by their own government when they have adequate legal safeguards to take action.’

In a letter to the African Union, the MDC says that, under the AU’s own constitution, it has the right to intervene in a member state in grave circumstances.

‘Grave circumstances are an apt summation of the situation in Zimbabwe. It is our humble submission that there are crimes against humanity being committed by the State in Zimbabwe, given the abduction of innocent citizens, the proscription of the right to demonstrate and the callous murder by State security agents of over 20 citizens on August 1, 2018 and in January 2019,’ the MDC said.

For his part, a US spokesman has repeated American concerns over the Zimbabwe situation. He said: ‘We have great concerns over the space that’s available for democracy and governance in Zimbabwe. We have been alarmed at how the government has treated its own citizens.’

If, as suggested, Zimbabwean bank notes are introduced next month they will soon show the real rate of inflation. The Vigil remembers that its barely a decade ago when wheelbarrows were used to go shopping – not to bring back goods but to carry the bank notes. The wizards at the finance ministry and the reserve bank must explain how you can import if you don’t export, except with the money we in the diaspora send home or foreign aid and loans.

Among those feeling the pinch is former Vice President Phelekezela Mphoko who has gone to the High Court seeking payment of his pension. Mphoko, who was in office for three years until last year, said that so far he hadn’t received a cent in pension and was now owed US$308,000. We hope he doesn’t get a bean because some time ago one of our activists said he was a family friend but had raped her.

Other points

  • Next week marks the 17th anniversary of the Vigil – 17 years outside the Embassy every Saturday . . . and the situation at home gets ever worse.
  • Special thanks to Rosemary Maponga and Heather Makawa who brought a brilliant new banner which reads: To save Zimbabwe, Zanu PF must go. No to Zanu PF – no to abductions and torture.’
  • Thanks to those who helped set up the front table and put up the banners today: Jonathan Kariwo, Patricia Masamba, Tarisai Matambanadzo, Joyce Mbairatsunga, Washington Mugari, Tsitsi Nyirongo, Hazvinei Saili and Rudo Takiya. Thanks to Hazvinei and Tsitsi for looking after the front table, to Tarisai and Patience Chimba for handing out flyers, to Delice Gavazah and Rangarirai Chivariro for drumming and to Patricia and Jonathan for photos.
  • For latest Vigil pictures check: http://www.flickr.com/photos/zimb88abwevigil/. Please note: Vigil photos can only be downloaded from our Flickr website.

FOR THE RECORD: 25 signed the register.

 

EVENTS AND NOTICES:

  • The Zimbabwe Vigil’s 17th Anniversary. Saturday 12th October from 2 – 5 pm outside the Zimbabwe Embassy, London. The Zimbabwe Vigil started on 12th October 2002 so this will be 17 years to the day that the Vigil has protested against human rights abuses and for democracy in Zimbabwe. Please join us for this auspicious anniversary.
  • ROHR general members’ meeting. Saturday 12th October from 11.30 am. Venue: Royal Festival Hall, South Bank Centre, Belvedere Road SE1 8XX. Contact: Ephraim Tapa 07940793090, Patricia Masamba 07708116625, Esther Munyira 07492058109.
  • ROHR fundraising dinner dance. Saturday 2nd November from 6 pm till late. Venue tba. ROHR is hosting a dinner dance to raise funds for a Zimbabwe peace building initiative. Tickets £25. Contact: Esther Munyira 07492058109, Hazvinei Saili 07857602830, Margaret Munenge 07384300283, Pamela Chirimuta 07762737339.
  • The Restoration of Human Rights in Zimbabwe (ROHR) is the Vigil’s partner organization based in Zimbabwe. ROHR grew out of the need for the Vigil to have an organization on the ground in Zimbabwe which reflected the Vigil’s mission statement in a practical way. ROHR in the UK actively fundraises through membership subscriptions, events, sales etc to support the activities of ROHR in Zimbabwe. Please note that the official website of ROHR Zimbabwe is http://www.rohrzimbabwe.org/. Any other website claiming to be the official website of ROHR in no way represents us.
  • The Vigil’s book ‘Zimbabwe Emergency’ is based on our weekly diaries. It records how events in Zimbabwe have unfolded as seen by the diaspora in the UK. It chronicles the economic disintegration, violence, growing oppression and political manoeuvring – and the tragic human cost involved. It is available at the Vigil. All proceeds go to the Vigil and our sister organisation the Restoration of Human Rights in Zimbabwe’s work in Zimbabwe. The book is also available from Amazon.
  • Facebook pages:
    Vigil: https://www.facebook.com/zimbabwevigi
    ROHR: https://www.facebook.com/Restoration-of-Human-Rights-ROHR-Zimbabwe-International-370825706588551/
    ZAF: https://www.facebook.com/pages/Zimbabwe-Action-Forum-ZAF/490257051027515
Livelihoods assets: differentiated development in Zimbabwe

Post published in: Featured

Livelihoods assets: differentiated development in Zimbabwe – The Zimbabwean

This week’s blog continues the series with a look at the distribution of assets people have and their importance in building livelihoods.

Our four communal area sites across Masvingo province each have highly differentiated populations. We undertook a ‘success ranking’ in each, where local informants allocated each of the 608 households in our sample to a group (doing well, doing OK and failing), and explained the reasons behind their choice. In each case there was a majority in the bottom two categories, with relatively few in the top success group.

What were the criteria they used? These varied between sites. In the dryland areas of the Lowveld, cattle ownership was the key, alongside off-farm work, reflecting the importance of migration to South Africa in household economies. In the Gutu sites, crop production became more of an indicator, alongside remittances and formal jobs. In all sites ‘a good home’ (usually meaning a brick house, with a tin roof) was an important criterion.

What then are the characteristics of the households in our four sites? The table below offers some basic information.

  Mwenezi Chivi Gutu West Gutu North
Sample size (N) 150 251 97 110
Since 2011, % left and abandoned farms 6.3 13.4 14.9 9.8
Average household size 8.0 (4 under 16) 6.2 (3.1 under 16) 6 (2.3) 6.1 (2.3)
Female headed households (%) 23 27 36 34
Households w members who went to resettlement areas post 2000 (%) 11.3 1.9 3.1 3.6
Households with someone working elsewhere 55 25 45 21
Households with children aged 21-30 working elsewhere 63% (half in SA) 27% (inc. 13 working abroad) 27% (only 5 away from area) 41 (8 away, mostly SA)
Lead women in household with access to land (%) 48 43 48 21
Average age of household head 41-50 41-50 41-50 41-50
Household heads attending school above Form 2 (%) 29 26 32 37
Master Famer certificate (%) 14 13 27 26

Since our original studies, there has been a turnover in households, with 11.2% of our cases (N=77) from our original sample of 685 households having left over six years, with no one replacing them. Various reasons for exit were recorded. In rank order these were: death, moving to live in town, moving to other communal areas, moving to South Africa, abandonment and moving to a resettlement area. Ageing communal area populations are not necessarily being replaced on death, as the younger generation does not take up the homestead or plot, and the land remains abandoned. Due to old age, some parents, especially if one has passed on, will go and live with children in town or the new resettlements. Younger inhabitants may also abandon plots too, finding better alternatives, for example with work in South Africa or in town, or through the allocation of a resettlement plot. The highest rate of exit was seen in Gutu West, followed by Chivi, Gutu North and Mwenezi. In Mwenezi, some maintain two homes and fields in the communal and resettlement areas, which is reflected in a lower exit rate.

For those remaining, the data show a pattern evident in many communal areas. Household heads have a mix of ages, with an average in the mid-late 40s. Quite a few household heads have passed on since we last visited in 2011-12; although some farms have been abandoned, others have been replaced by younger people through inheritance or reallocation. 23-36% of the households are recorded as female-headed, where husbands have died or are absent for long periods. Outside Gutu North, where land is especially constrained, 43-48% of women, either because they are in charge or through the marriage contract, have access to their own land.

As is the case throughout Zimbabwe, and especially for those who benefited from the post-1980 educational provision, schooling is on average quite advanced, more so in the mission influenced areas such as Gutu, where 32-37% of household heads attended secondary school. Master Farmer certificates are indicators or engagement with agricultural extension training provided by the state, particularly in the past, and 13-27% of households have a certificate, with more in the higher potential Gutu areas. As discussed in a later blog in this series, engagement with projects – by NGOs or donors or the state – is patchy, with intensive activity in some areas, but almost complete absence elsewhere. These data show that external interventions overall are limited, and very few people indeed benefited from the Presidential inputs scheme or ‘command agriculture’ in this period.

Asset poor, but differentiation

Across our communal area sites in Masvingo province, there is a broad similarity in average levels of average household asset ownership, as the table below shows. Not surprisingly, livestock ownership is highest in the drier areas, as is investment in well digging. Within the sites there are large variations, with asset ownership patterns being highly correlated with the success ranks discussed above. Some assets are widely owned, such as a brick house with a tin roof, as well as ploughs, cell phones and bicycles. Others differentiate the group more, including cattle, tractor and car ownership.

  Mwenezi Chivi Gutu West Gutu North
Land owned (ha) 6.5 2.1 1.6 1.4
% households dug well in last 5 years 14 2 2 8
Cattle owned (nos) 7.6 4.0 3.1 3.7
Households with brick/tin roof house (%) 89 80 69 86
Plough ownership (%) 52 45 30 37
Harrows (%) 10 34 22 65
Cultivators 12 23 26 16
Cart ownership (%) 50 21 10 24
Wheelbarrow owned 41 50 21 25
Car ownership (%) 13 5 10 8
Tractor ownership (%) 13 0 0 0
Bicycle ownership (%) 45 32 36 43
Solar panel ownership (%) 75 57 69 47
Cell phone ownership (%) 87 92 89 91
TVs owned (%) 23 25 44 30
Pumps owned (%) 5 1 2 2
Spray equipment owned (%) 22 35 21 15

Levels of asset ownership are lower on average in the communal areas compared to the nearby A1 schemes, although there are exceptions in both directions. The key difference of course in the A1 schemes is land ownership, where households cultivate 4.0-6.6 ha of land in the sites nearby, and there is much more extensive grazing. This is associated with accumulation from crop and livestock production and so investment in other productive and service assets. Again, this is not universal, but whereas perhaps 5-10% of households in the communal areas (the top of our success group 1) are able to accumulate from local production, this increases to 30-40% in the A1 areas next door.

People’s capacities are broadly similar (A1 resettlement area populations are on average slightly younger and a bit more educated), but it’s access to assets that make the difference. Land redistribution in particular has made a big difference for many. While in the communal areas there is a long tail of asset and income poor households in need of external support, through remittances, off-farm work and state/donor aid, with only a few able to accumulate through farm-based production, in the A1 resettlements this pattern is reversed and there is much more development potential driven by ‘accumulation from below’ for at least a third of households. For them, a positive upward cycle is generated, as agricultural surpluses allow reinvestment in productive assets, and so potentials for greater accumulation, while others aspire to create such opportunities.

As discussed in later blogs, this has important implications for rural development options, with investment in productive, agriculture-based development possible in the resettlements (focused on ‘stepping up’ livelihoods), but much less so in the communal areas, where a focus on exit to non-farm livelihoods (‘stepping out’) and social protection (‘hanging in’) must dominate.

This post is the second in a series of nine and was written by Ian Scoones and first appeared on Zimbabweland.

This field research was led by Felix Murimbarimba and Jacob Mahenehene. Data entry was undertaken by Tafadzwa Mavedzenge

AU must act on Zimbabwe – Zimbabwe Vigil Diary
The Water Crisis Fact Sheet No. 2, 2019

Post published in: Agriculture

The Water Crisis Fact Sheet No. 2, 2019 – The Zimbabwean

1 Lack of key water treatment chemicals forced Harare’s water treatment plant Morton Jaffray to halt production on 23 September 2019, leaving over one million people without running water. 2 Harare City Council (HCC) cited foreign currency shortages as the reason for the shutdown. Deputy Mayor, Enock Mupamawonde urged government to declare the water situation a national disaster, enlisting that the local authority needs at least 40 million Zimbabwe Dollars (US$2.7 million) a month for water chemicals, against revenue of 15 million Zimbabwe dollars they collect per month. The World Health Organisation (WHO) stipulates that ideally, every person should access between 50 and 100 litres of water per day to ensure the most basic needs are met and the outbreak of disease is prevented.4 With the serious shortages of this precious and life- saving liquid many citizens in Zimbabwe fall far short of this standard. Citizens need clean water for drinking, personal sanitation, washing of clothes, food preparation and personal and household hygiene.

Sustainable Development Goal 6 urges duty bearers to ensure availability and sustainable management of water and sanitation for all. In the current situation this goal remains a pipe dream unless there is more commitment and political will on the part of local and central government to improve the situation.

Even at the continental level, Africa is also concerned by the water deficits most citizens face on the continent and the N’gor Declaration by Africa Water ministers is hinged on highlighting the importance of accessibility of clean and affordable water.

Some residents have resorted to drilling boreholes to access clean water, however, these boreholes require electricity to pump water, something which is a challenge considering the constant power cuts lasting up to 18 hours daily. Generally, many local authorities throughout the country cannot pump running water to residents due to power cuts.5 Those with water tanks on their properties rely on individuals or privately-owned water companies to pump water into the tanks at a considerable cost often pegged in USD.

Residents are mostly dependent on city or donor-drilled boreholes. These water sources are sometimes unclean due to poor sanitation as evidenced by the September 2018 cholera outbreak which resulted in over 30 deaths.6 These boreholes have been monopolised by some unscrupulous individuals who are extorting residents in order for them to get water. In Chitungwiza in Zengeza 4 (Zengeza West constituency) ZPP recorded a truck selling a bucket of water at $1.50 ZWL. Desperate residents are left with no option but to purchase the water.7 In Epworth Constituency, Ward 2, three youths are manning a borehole and forcing residents to purchase two buckets of water at $1.50 ZWL.8 Women and children especially young girls bear the brunt of the water crisis. This group spends most of their days looking for water and there have been unconfirmed reports of men soliciting sexual favours from women so that they easily access water at boreholes. School children spend long hours in water queues resulting in them getting to school tired as they at times queue up to the early hours of the morning.

Without water, the chances of them attending school and learning productively are compromised. The water and sanitation crisis places millions of residents at risk of contracting waterborne diseases. Residents have often resorted to drinking water from shallow, unprotected wells that are contaminated. The crisis has brought about issues of extortion, exploitation and school absenteeism. ZPP is also concerned about the conflicts that erupt at the watering holes as citizens jostle to get their buckets ahead of the many hoping to get the precious liquid ahead of everyone else.

ZPP calls upon government and local authorities to ensure the right to water is protected and upheld. Every citizen must enjoy the right to clean and safe water. Law enforcement agents should bring to book those responsible for the extortion of citizens, particularly the exploitation of women and children especially young girls. The peace and security of women and young girls who spend countless hours waiting in long queues to draw water is unfortunately not guaranteed. ZPP also calls on the Zimbabwe Human Rights Commission to seriously investigate the acute shortages of water faced by citizens in most urban centres.

Compiled and published by the Zimbabwe Peace Project

Doctors’ Strike Leaves Some Zimbabweans ‘Gathering Here in Pain’

Post published in: Featured

Doctors’ Strike Leaves Some Zimbabweans ‘Gathering Here in Pain’ – The Zimbabwean

The Harare resident said she had been referred to Parirenyatwa General Hospital, the capital’s largest medical center, “but there is no help. We are just gathering here in pain, in shame and in agony.”

An untold number of Zimbabweans have been turned away from public medical facilities since Sept. 3, when just more than 500 junior doctors, paid less than $200 a month, went on strike, demanding better wages as well as equipment and supplies for treating patients.

Hundreds of senior doctors with the same complaints joined the strike Thursday, further diminishing treatment options in the southern African country of 14 million.

Government offer rejected

On Friday, labor groups representing the doctors rejected the government’s offer of a 60% salary increase. It would have been paid in Zimbabwe’s devalued currency and not the U.S. dollars that the doctors sought.

“They’re asking the government to match their salaries with what they were earning” before the country’s economic collapse, explained Dr. Fortune Nyamande, spokesman for the Zimbabwe Association of Doctors for Human Rights. His group does not represent labor nor is it involved in negotiations, but Nyamande was apprised of Friday’s developments.

The government has threatened to withhold the pay of striking doctors. Dr. Paulinus Sikosana, chairman of its Health Services Board, said it won’t pay someone who won’t work.

The World Health Organization’s representative to Zimbabwe, Dr. Alex Gasasira, encouraged negotiations between the striking doctors and the government.

“We hear that many patients are being turned away, some of them with very serious conditions,” Gasasira said in a phone interview. “So we are concerned that the most vulnerable people … would not be able to access the services that they would require.”

An ailing health system

The strike has paralyzed the public health system.

“We know that something terrible is happening. We are hearing of pregnant women dying, victims of road traffic accidents dying,” Nyamande said, adding that he doubts the accuracy of government statistics on health and mortality.

Zimbabweans such as Mbofana gauge the health system based on personal experience.

Her back hurts and her prospects are poor. Turned away from public health care, “I was advised to go and seek treatment from private clinics or surgeons,” Mbofana said. “But how do I raise the money?”

Patients admitted into public hospitals before the strike have no guarantee of quality care, either, given gaps in staffing and shortages of medical equipment, such as diagnostic tools, surgical gloves and pain medicine.

A woman who identified herself only as Kukuwe said her sister’s health is worsening while at Parirenyatwa.

“No doctors are coming to see patients,” Kukuwe said. “The patients are stranded and are not receiving help because there are no doctors to write prescriptions.”

Doctor in care

Senior doctors last month had joined their junior counterparts in demonstrating for the release of Peter Magombeyi, who had led the strike as acting president of the Zimbabwe Hospital Doctors Association. He allegedly had been abducted from his home Sept. 14, resurfacing several days later outside of Harare, dazed and in pain. He initially told VOA in a phone interview that he remembered “being electrocuted at some point.”

The group Human Rights Watch says it has confirmed at least 50 abductions of activists and government critics so far this year.

President Emmerson Mnangagwa’s administration and Zimbabwe police have denied any involvement in Magombeyi’s disappearance.

Zimbabwe police had blocked Magombeyi from leaving a Harare private hospital but ultimately heeded a high court’s order to allow the doctor to seek care in South Africa. He reportedly is being treated at an undisclosed medical facility there.

Rutendo Mawere reported for VOA’s English to Africa Service from Harare. Gibbs Dube of VOA’s Zimbabwe Service reported from Washington.

The Water Crisis Fact Sheet No. 2, 2019
Busting the myth of an ‘upper middle income’ Utopia

Post published in: Featured

There are days when ‘my husband and I don’t eat at all’ – The Zimbabwean

In eastern Zimbabwe’s parched Buhera district, Omega Kufakunesu’s family has been forced to scale down daily meals to just a portion of vegetables and sadza, a thick maize-meal porridge.

In the morning only the children get the porridge, and everyone skips lunch.

“During the day we have wild fruit collected by the children, and at night we have smaller portions of sadza with vegetables,” harvested from the communal village garden, said Kufakunesu, sitting outside her thatched round hut.

A palmful of shumha, a drought-resistant wild fruit, is all she will eat during the day until dinner time.

“We have reduced our food portions so that its enough for everyone,” she said.

But there are days when “my husband and I don’t eat at all” to make sure the children have some food, she said.

Zimbabwe is experiencing one of the worst droughts in history, blamed on the effects of the El Nino weather cycle.

In addition, the former regional breadbasket is in the throes of its worst economic crisis in a decade with inflation estimated to be over 900 percent.

‘More hungry people than ever’

Because of the combined effect of drought and an ailing economy, more than five million rural Zimbabweans, nearly a third of the population, are going to face food shortages before the next harvest in 2020.

A disturbing feature of this year’s food shortages is the increase in the number urban poor who are vulnerable.

The government estimates that up to 2.2 million people in towns and cities are struggling to feed themselves.

WFP country representative Eddie Rowe said there are “more hungry people than ever before in Zimbabwe”.

In August, the United Nations extended its appeal for aid – from $234m February to $331m to feed the combined total of over seven million Zimbabweans, roughly half the country’s population.

Buhera is home to around 300 000 people and experiences dry spells even during good rainy seasons. It is one of the areas hardest hit by the drought.

To make matters worse, it was in the path of Cyclone Idai which devastated Mozambique and parts of eastern Zimbabwe earlier this year.

‘Bartering wire mesh for food’

According to the UN, most of Zimbabwe’s 60 districts will have exhausted their staple maize stocks by October.

The Kufakunesu family and neighbouring villagers have been lucky to have boreholes to draw water for drinking, washing and watering the garden – but the water is drying up due to the heat and scanty rain.

The UN’s World Food Programme has been handing out food parcels – cooking oil and porridge for children under five – and US$8 in cash per month for every family member. But the payouts are only restricted to the so-called lean months.

At Joni, a neighbouring village, 49-year-old Fungai Mugombe, one of three wives and a mother of seven, used the money set up a simple wire mesh making project.

“People buy the mesh wire for fencing, and we make a small profit. I sometimes exchange the fences with food,” Mugombe said outside a cluster of huts where a red bougainvillea adds colour to a bleak dusty landscape.

Freeman Mavhiza, the district administrator, said the government was providing villagers with irrigation facilities and seed for drought resistant crops such as millet and sorghum.

President Emmerson Mnangagwa has said the government had budgeted $120m for the production of “strategic crops, such as maize, soya beans and cotton”.

Bad Governance Creates Oligarchies, Monopolies, Lethal Distortions etc

Post published in: Business

Results Define Us, But Stay Grounded

Take a moment to think about your most memorable victory, and be honest with yourself. Were the facts on your side? How about the law? Did you actually overcome the odds, or was the outcome predetermined?

One of my colleagues and I were recently regaling war stories over lunch. The topic quickly turned to the most exciting, entertaining, and memorable cases each of us has litigated. As the conversation progressed and tales of victory were exchanged, I found myself noticing how closely we as lawyers identify with our work. After an impressive display of one-upsmanship, the discussion took a dark turn and we began to discuss our worst failures.

Without taking any time to think about it, I found myself instantly remembering my worst defeat. I will not bore you with the minutia of the facts, or the ruling, suffice it to say that despite vigorous litigation, the judge ruled completely against me. Notice how I phrase that: the judge ruled against “ME” — not my client, not my firm, ME.

In retrospect, that is standard protocol for discussing the results of our work. When we win a case, it is our victory, we earned it. When we lose a case, it is our defeat, we have failed. Each decision, each judge’s order is an assessment of our efficacy — infinitely more important than any other source of feedback we have ever received. Each of us, especially litigators, credit our quick wit, our charm, our inventive arguments, our handwork and preparation, or our reputation for each case we win.

The personal identification with our work is part self-preservation and part ego. Each of us wants to believe that we are the unique element that wins the case. Past that, reconciling the amount of time we put in, the tremendous talent we exhibit with each argument we set forth, the eloquence of each phrase we utter at a hearing, and the intellect that drives our litigation strategies with a world that does not care is inapposite. Our work must matter or else there is no point.

A senior attorney once told me, if the facts are on your side, argue the facts. If the law is on your side, argue the law. If the facts and the law are against you, yell louder than the other guy. While I am uncertain that this is a sound litigation strategy, the point is clear — a good lawyer finds a way to make his client right.

While I respectfully take any advice I am given, a reality check is in order. There is no lawyer who wins every argument and dominates every case. The reason for that is simply that the facts of the case, not the attorney, often decide the ultimate outcome. Bearing in mind this reality can help keep us grounded and, in fact, helps us to counsel our clients.

With that said, when the facts are neutral, and the law is not clearly on any party’s side, that is when our advocacy can truly shine. Those are the stories worth sharing and the victories truly worth celebrating.


Andrew C. Bershtein is an attorney at Balestriere Fariello who represents clients in in all stages of litigation, arbitration, and mediation. He focuses practice on complex commercial litigation, contract disputes, and real estate law. You can reach Andrew at andrew.c.bershtein@balestrierefariello.com.

Media Wonders If Democrats Are Right To Do The Thing Literally Every Court In America Does

It’s running the risk of becoming cliché to suggest that the media will turn the investigation into the White House using foreign policy leverage to coax other nations into digging up scandal on Joe Biden into a discussion about “how exposed is Joe Biden.” Except, of course, it’s actually already happening because the news cycle is dumb.

Now the drive to churn content on this nascent impeachment inquiry is forcing reporters to look for angles and narratives where none should exist. Take this article in Roll Call, where we’re asked to consider if House Democrats are making a dangerous investigatory mistake in acting… like every litigant ever.

Despite some public pressure from the fringes, impeachment was mostly a dumb strategic move for Democrats over the past few years — the Russia inquiry involved claims that were thoroughly litigated in the court of public opinion and the public mostly didn’t care. In that world, going down this road only served to give Trump the acquittal and “exoneration” he desperately craved. The latest allegations, involving military aid and potentially toying with trade policy, are markedly different than pee tapes and porn stars. With the Democrats taking this endeavor seriously, they’ve also adopted the professional approach any legal inquiry would bring.

Trump’s folks have mostly tried to stymie the investigation and ignore or attempt to quash subpoenas. In the face of these delay tactics, Democrats have warned Trump’s people that withheld evidence will likely earn an adverse inference.

For the less politically inclined, this is exactly what happened to Tom Brady in Deflategate when he admitted that he’d destroyed the phone that allegedly held problematic texts.

And that’s the point: this is how this is handled all the time in the law. It is in no way controversial — if this evidence is being withheld for the seeming purpose of obstructing the probe, it can and should earn an adverse inference. If the administration doesn’t like that, then they should turn the stuff over. Full stop.

And yet….

But an adverse inference shortcut could also be a pitfall.

Just because House Democrats want to infer that missing evidence is bad for Trump doesn’t mean the public opinion will go along with it. And it probably won’t go over well with Republican senators who would vote on the articles of impeachment, either.

First of all, is this article trying with a straight face to argue that but for adverse inferences, Republican senators would vote to convict? Trump could, as he’s suggested, shoot someone on Fifth Avenue and the GOP wouldn’t abandon him — at least not in the numbers necessary for any of this to matter.

But more importantly, maybe don’t call the evidentiary concept of an “adverse inference” a “shortcut” or suggest it runs contrary to “fair and legitimate investigation.” Not only is it plainly wrong, but it undermines the way courts in this country operate every day. This doctrine exists because it’s sound and fair and the only way to guarantee litigants don’t just refuse to produce anything at all. The people trying to undermine and obstruct are the people actually jeopardizing the legitimacy of any investigation.

Ultimately, the impeachment trial itself is a waste of everyone’s time, but a long, thorough investigation isn’t. That will matter for a long time to come. If the House has to style it as an impeachment inquiry to get there because Trump’s lawyers complain that subpoenas lack a “legislative purpose,” so be it. But ensuring the investigation is professional and legally sound is what truly matters.

In other words, this is about process not outcome, so let’s spare everyone all this fretting about the likelihood of Trump’s removal and just let lawyers do their jobs.

House Democrats enlist risky legal move in impeachment probe [Roll Call]

Earlier: Impeachophilia: The Democrats’ Futile And Self-Destructive Attraction To Impeachment


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Supreme Court Justices Used To Pass Notes Like Teenagers During Oral Arguments

(Image via Getty)

Note ‘blond’ in second row, center. She is here almost daily — at least since you came!

— Chief Justice Warren E. Burger, in a note passed to Justice Harry Blackmun during an oral argument at the Supreme Court that took place in November 1971. Justices used to pass handwritten notes to each other during the arguments taking place at the high court, which Timothy Johnson, a political-science professor at the University of Minnesota who has copied more than two decades’ worth former justices’ papers, including bench notes like these, says provide “an interesting insight into what they were thinking about as the attorneys were arguing.”


Staci ZaretskyStaci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.