A Real Trial Needs Witnesses

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The House managers have marched the two articles of
impeachment across the capitol to the Senate and the trial of Donald Trump has
begun in earnest.  Yet, a central issue
remains unresolved: whether the Senate will hear witness testimony.

Pressure to entertain witnesses has increased dramatically
since the House adopted the articles in December.  Among other developments, John Bolton has
announced his willingness to respond to a Senate subpoena, and evidence of his
participation in a crucial Oval Office meeting has emerged.  Most recently, Lev Parnas has described and
documented Trump’s personal direction of Parnas’s and Rudy Giuliani’s campaign
to pressure Ukraine to announce an investigation of the Bidens.   The need to hear from these witnesses and
others whom Trump ordered not to testify in the House is overwhelming.

Senate Majority Leader Mitch McConnell has made no secret of
his desire to dismiss the articles of impeachment without a trial and, failing
that, to hold a skeleton trial consisting only of presentations by House
managers and Trump’s lawyers based on evidence developed in the House.  The proposed scheduling order will pack the
trial into a series of six eight hour days of opening argument, followed by a
period for questions, and votes on whether to hear witnesses and evidence or
dismiss the articles.  This order was
softened at the last minute to spread argument over six days instead of four
and to incorporate the evidence gathered in the House into the Senate record,
subject to objection to individual pieces of evidence.

Only after the lawyers have argued the case will the Senate
vote whether to hear witnesses and admit additional evidence.  Slipping through the looking glass, McConnell
wants to have a trial first and then decide whether to hear evidence.  Yet, a trial, by definition, is a proceeding in
which the finder of fact first hears and evaluates evidence.  The receipt and consideration of evidence is
what makes the proceeding a trial, unlike a hearing on a motion for summary
judgment or a motion to dismiss.  The
Constitution places the burden to “try” impeachments on the Senate.

Regarding witnesses, Republican senators have fabricated the
argument unsupported by any text or precedent that the Senate may not hear
evidence unless it was presented to the House before it adopted the two
articles of impeachment.  Andrew
Johnson’s trial heard forty-one witnesses without regard to whether they had
testified previously.  The three
witnesses deposed at Clinton’s trial had testified previously during the Starr
investigation, which supplied the factual basis for the impeachment.  Notably, Clinton, himself, had testified
previously on video and all of the documentary evidence had already been
produced before the Senate trial. 

While the analogy of impeachment to a criminal prosecution
is not perfect, it provides helpful guidance on fairness.  Arguing that the Senate cannot consider
evidence that was not heard in the House is the equivalent of saying that only
witnesses or documents presented to a grand jury can be used at trial.  That’s simply not the way the criminal
justice system works — or should work. 
Prosecutors present at trial the best evidence available at the time of
the trial, regardless whether the grand jury saw or heard it.

While the Senate should be limited to consideration of the
articles of impeachment that were adopted in the House, there is no reason the
Senate cannot hear additional relevant evidence in the Senate to prove or
disprove those articles.  In a criminal
process that relies on grand juries, a trial jury cannot find a defendant
guilty of counts that were not presented in the indictment from the grand
jury.  It, however, may hear additional
evidence supporting or refuting the charges in the indictment.  Indeed, a criminal trial is the first
opportunity for the defense, which is excluded from the grand jury, to offer
evidence.

Imagine if the President were being impeached for shooting
his principal political opponent on 5th Avenue, as he once claimed
he could do without losing any votes. 
The evidence available to the House consisted of uncertain eyewitness
testimony, but strong circumstantial and forensic evidence.  The gun used belonged to the President.  The President had told advisors that he was
going to do it.  He was spotted in the
vicinity near the time of the shooting. 
Based on this evidence, the House adopted an article of impeachment.  While the article was on its way to the Senate,
a previously unknown surveillance video emerged showing clearly the President
aiming the gun and firing at the victim who fell to the pavement.  Would anyone argue seriously that the Senate should
not be allowed to see the video?

Or imagine that the video showed definitively that the
President was not the shooter.  Would the
same principle excluding new evidence apply? 
Surely, the Senate would consider it.

The argument against hearing new evidence is particularly
weak where, as here, the President made much of the evidence unavailable to the
House by directing his administration to resist all cooperation.  He cannot now use his successful obstruction
of the House investigation as a bar to hearing evidence in the Senate.

McConnell’s eagerness to jam through a summary dismissal of the articles of impeachment spurred cautious statements supporting the possibility of hearing witnesses from Sens. Romney, Murkowski, and Collins.  Other Senators are rumored to be in play, including the retiring Lamar Alexander of Tennessee.  Each new revelation has heightened pressure on Republican Senators to explain why they would proceed to a final judgment without receiving specific, obviously relevant evidence.  On the other hand, the continuing stream of highly incriminating revelations proving Trump’s abuse of office for personal gain has reinforced the view held by Trump’s hardcore Senate supporters that all new evidence must be blocked.

In the end, the decision whether to conduct a real or sham trial will rest with four senators.  The last minute changes to the resolution structuring the trial suggest McConnell’s grip on his caucus may have slipped.  A more cynical view suggests that McConnell leaked a draconian resolution to allow himself to appear reasonable when he softened it and to allow the electorally challenged Sen. Collins to show her clout and desire for fairness.  Let’s hope that cynical view is wrong and McConnell’s grip is weakening.


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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.