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First the Trial, Then the Evidence? Impeachment in Wonderland.


Source: Truthout

In a scene straight out of Alice’s Adventures in Wonderland, the GOP-controlled Senate has refused to allow timely testimony from witnesses who had front row seats to Donald Trump’s abuse of power. The senators voted 53-47, strictly along party lines, to table any possible discussion of whether to allow witnesses and documentary evidence until six days of legal arguments and two days of senator questioning had occurred. That means the parties will argue the case and senators will ask questions before they ever get to see documents or hear from prospective witnesses.

The House Intelligence Committee subpoenaed several documents and witnesses to testify during the impeachment inquiry. But unlike any prior impeached president and despite the Constitution’s command that the House of Representatives “shall have the sole power of impeachment,” Trump totally refused to cooperate with the inquiry. He declined to provide even one document. He forbade all members of the executive branch to testify, raising the discredited theory that subpoenaed witnesses who refused to testify would enjoy “absolute immunity” from civil and criminal prosecution. But every court to examine that theory has rejected it.

Ultimately, 17 witnesses testified in the House inquiry. Nine followed Trump’s command and defied their subpoenas. The testimony provided overwhelming evidence of Trump’s abuse of power and obstruction of Congress as charged in the Articles of Impeachment issued by the House.

On the first day of the Senate trial, the Democratic House impeachment managers made 11 motions to amend Senate Majority Leader Mitch McConnell’s proposed trial rules to allow witnesses and documents. The managers moved to subpoena relevant documents from the White House, State Department, Pentagon and the Office of Management and Budget. They also moved to issue subpoenas to Mick Mulvaney, acting White House chief of staff; John Bolton, former national security adviser; Mike Duffey, White House budget official; and Rob Blair, adviser to Mulvaney.

In the course of arguing their motions, the managers laid out the case of Trump’s abuse of power. The four men the managers want to testify witnessed Trump’s withholding of almost $400 million of congressionally authorized military aid to Ukraine until President Volodymyr Zelensky agreed to announce investigations into one of Trump’s political rivals.

During arguments on the managers’ motions, Trump’s lawyers repeatedly bemoaned the threat to executive privilege if witnesses were required to testify. Executive privilege means that some internal executive branch communications are protected from compelled disclosure. But Trump has relied on the “absolute immunity” theory to prevent witnesses from testifying; he never asserted executive privilege. During a witness’s testimony, Trump can invoke executive privilege to prevent an answer to a specific question. But he can’t stop the witness from testifying in the first place. In United States v. Nixon, a unanimous Supreme Court denied Richard Nixon’s claim of executive privilege and ordered him to produce the inculpatory tapes. Nixon resigned shortly thereafter.

Even if Trump asserts that a witness is absolutely immune from compelled testimony, House manager Jerry Nadler observed, the president has no authority to block that person from testifying. Nadler cited a judge who recently wrote, “Presidents are not kings. That means they do not have subjects … whose destiny they are entitled to control.”

Trump’s legal team spent the bulk of its time arguing about process. His lawyers criticized the method the House used to issue subpoenas even though the House has the “sole power of impeachment.” They claimed that Trump was denied due process in the House inquiry even though he was invited to participate and declined. What Trump’s lawyers didn’t do was to refute the powerful evidence presented by the managers.

All 100 senators must sit silently, on pain of imprisonment, for six days a week for the duration of an impeachment trial except for during the 16 hours when the senators get to ask questions. McConnell is under pressure from Trump to conduct a quick trial so that the president can brag about his acquittal during his State of the Union address on February 4. McConnell insisted that all motions be resolved on Day 1 of the trial so the arguments could begin on Day 2. Thus, the senators and Chief Justice John Roberts, the presiding officer, were forced to sit in the Senate Chamber for nearly 13 hours into the early morning hours.

McConnell wants a “rushed trial with little evidence in the dark of the night,” Senate Minority Leader Chuck Schumer said. “If Trump is so convinced he’s innocent,” he added, “why not in broad daylight?” Because, the managers argued, Trump wants to minimize the incriminating evidence the American people hear.

“A trial without evidence is not a trial; it’s a cover-up,” Schumer charged. All prior impeachment trials featured evidence. “The witnesses we subpoenaed weren’t Democrats,” Schumer said. They’re “the president’s own men.”

The most important decision the senators can make is whether there will be a fair trial, lead manager Adam Schiff noted, saying this decision is “more important than the vote on guilt or innocence.” If senators wait to call witnesses, they “won’t have any of the evidence the president seeks to conceal during most of the trial,” he added.

Moreover, Schiff argued, limiting the evidence to that developed in the House would make the Senate function as an appellate body, meaning that it would just review what the House inquiry had found. This role is inconsistent with the Constitution, which grant the Senate the “sole power to try all impeachments.”

Zoe Lofgren, the first woman ever to address the Senate as an impeachment manager, challenged the senators to “end President Trump’s obstruction” by authorizing subpoenas. “If the Senate fails to take this step, you won’t even ask for the evidence,” she said. “This trial and your verdict will be questioned.”

The managers also made a motion to rectify an unfair defect in McConnell’s draft resolution that would permit Trump to cherry-pick documents he had refused to provide to the House and then introduce them in the Senate. That would allow Trump to “use his obstruction not only as a shield to his misconduct, but also as a sword in his defense,” Schiff noted. The proposed amendment said that if any party tries to admit evidence that wasn’t produced in the House, it must provide the other party with all documents responsive to the subpoena. This is consistent with the well-established Rule of Completeness, which prevents the selective introduction of evidence that would mislead the jury. That motion was also tabled by a 53-47 vote.

But the rubber hit the road when the Senate tabled the managers’ motion to ensure they would be able to argue for witnesses and documents later in the trial. Before trial, a few moderate GOP senators had publicly expressed a desire to hear witnesses. On the first day of trial, however, they walked in lockstep with McConnell and Trump in refusing to guarantee even the opportunity to discuss whether witnesses will be called. Schumer accurately told CNN at a break earlier in the day that when the Republicans say “later” for witnesses, “they mean never.”

Finally, the managers moved to allow the chief justice to determine whether a requested witness’s testimony would be relevant to the inquiry, a determination that could be overruled by the Senate. That motion, too, was tabled by the same margin.

“Every Republican senator has shown that they want to be part of the cover-up by voting against every document and witness proposed,” Nadler said.

Indeed, Day 1 of the trial is a harbinger that all Republican senators will ultimately serve as loyal foot soldiers to the president, seriously imperiling the constitutional separation of powers. To borrow Frank Rich’s striking characterization, they are “Vichy Republicans,” referring to the French government that did Hitler’s bidding during the Nazi occupation of France.

Copyright Truthout. Reprinted with permission.

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers and a member of the advisory board of Veterans for Peace. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.

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