Yeomans Work

A Real Trial Needs Witnesses

January 21, 2020

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.

Sign up to get Yeomans Work in your inbox!

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.