Pressure is mounting for House Speaker Nancy Pelosi to send the two House adopted articles of impeachment to the Senate for trial. This despite Senate Majority Leader Mitch McConnell’s determination to conduct a sham trial, featuring no witnesses and no evidence not included in the record compiled by the House. That’s the same record that was severely limited by Trump’s instruction to members of his administration to withhold all testimony and documents related to the Ukraine scandal. The fix is in. Pelosi should not be in a rush to help McConnell finish the job.
Pelosi’s willingness to hold onto the articles of impeachment for three weeks has produced tangible results. It prevented McConnell from trying to rush through a vote to dismiss the articles prior to the holiday recess. In the meantime, it has focused a bright light on McConnell’s plan to orchestrate Trump’s acquittal with minimal process and no serious consideration of the evidence. As a result, polling shows fifty-seven percent of the public favors a trial with witnesses.
The delay has allowed the emergence of crucial new evidence, including an Oval Office meeting to persuade Trump to release aid to Ukraine involving then National Security Advisor John Bolton, Secretary of State Mike Pompeo and Secretary of Defense Mark Esper, and the release of incriminating emails linking the decision to hold up aid directly to Trump. More will certainly emerge.
Most recently, the delay has allowed at least one previously reluctant central witness to commit to testify. John Bolton’s statement that he would appear in response to a Senate subpoena was embraced initially as a game changer by some. After all, they reasoned, how could any senator deny the relevance or importance of Bolton’s first-hand accounts of his discussions with the president and his advisors about freezing military assistance to Ukraine?
Why did Bolton come forward? One possibility is that he calculated that McConnell would remain firm against calling witnesses at the Senate trial and would maintain sufficient caucus discipline to defeat a Democratic motion to summon Bolton or any other witness. In other words, Bolton is trying to reap the benefit of appearing responsible, civic-minded, and titillating without running a substantial risk of having to testify. This is ideal positioning for a man whose book will be on sale soon.
The House Intelligence Committee should test Bolton’s newfound commitment to cooperate by issuing a subpoena for his testimony immediately. While Bolton offered to testify only in response to a Senate subpoena, he cannot have legal reservations about responding to a House subpoena, since House and Senate subpoenas carry the same force of law.
The Committee should let the public hear his statement before the Senate decides whether to hear witnesses. The goal of Democrats now is to generate sufficient public pressure that four Republican senators will have to vote to allow testimony in the Senate. If they cannot persuade four senators, they can at least strengthen the case that Trump’s eventual acquittal lacks legitimacy. In either event, Democrats benefit by showing that there is highly relevant evidence that senate Republicans are simply refusing to hear.
Senate Republicans have taken the indefensible position that the Senate is limited to acting only on the basis of the evidence before the House at the time it voted on the articles of impeachment. This understanding miscasts the House as a trial court and the Senate as an appellate court, which is limited to review of the trial court’s judgment for errors of law and may not look beyond the evidentiary record developed below.
The better analogy would compare the House to an investigative body, much like a grand jury, that issues an indictment in the form of articles of impeachment. As with an indictment, those articles are based on sufficient evidence to establish probable cause that a crime has been committed. The full presentation of the evidence, including the defendant’s witnesses, happens at trial. An impeachment trial takes place in the Senate, where the introduction of evidence is expected.
McConnell’s stand against witnesses and expansion of the record defies precedent. At Andrew Johnson’s Senate trial, 25 witnesses appeared for the prosecution and 16 for the defense. At Bill Clinton’s trial, witnesses were less necessary because of the years-long special counsel investigation that preceded it, but the Senate still entertained testimony from three witnesses.
In this proceeding, Senate Republican objections to considering evidence beyond the House record are particularly shameless. With the unwavering support of House Republicans, the Trump administration hid behind legally insubstantial claims of absolute immunity and executive privilege to block House access to witnesses and documents. It cannot now fault the House majority for doing an incomplete job, reject all efforts to complete the record, and acquit Trump based on the paucity of evidence that his administration engineered.
Bolton’s House testimony would not be a substitute for his Senate testimony, but it would serve, at the very least, as a proffer that would demonstrate relevance, making it harder for a majority of senators to support a trial without his testimony.
If Bolton is eager to avoid House testimony, he could issue voluntarily a detailed statement recounting his dealings on the Ukraine matter. The release of a chapter or two of his book might tell the public much of what it needs to know and would fulfill his obligations as a former public servant.
Minority Leader Chuck Schumer has vowed to force the Senate to vote on subpoenas for four witnesses, including Bolton. Issuance of a subpoena will require the support of four Republicans. Bolton’s House testimony will make a vote against a subpoena far more difficult for Sens. Romney, Murkowski, Tillis, Gardner, Collins, and McSally.
Eventually, Speaker Pelosi will have to send the articles of impeachment to the Senate, but her delay is making McConnell’s cover-up more difficult by the day. She should not be in a hurry.
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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.