1/21/20: The first day of the
impeachment trial of President Donald John Trump goes as expected. Democratic
House managers insist that the Senate should subpoena documents and witnesses.
They argue that new evidence has emerged, will continue to emerge,
and would support the case they have compiled.
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Calling witnesses and asking for documents would be a
terrible way to prove the president is innocent.
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The Republican House managers and the Trump legal team argue
that calling witnesses and asking for documents would be a terrible way to
prove the president is innocent. The case the Democrats have is no good,
they insist, even though it includes testimony from witnesses who testified under
oath, and even though the president tried to stop them from showing up for the
House impeachment inquiry. That the House case is no good, Sen. Lindsey Graham
and other Republicans agree (before they hear the evidence) even though it rests
on the few documents that witnesses managed to provide – because witnesses testified
that the Trump administration tried to keep them from providing documents at
all, even library cards, to back up testimony.
It also seems like a wonderful idea to Sen. Majority Leader
McConnell to have only one camera in the chamber and keep reporters as far away
from senators as possible – for example, in Sri Lanka.
(Later, that makes it harder to film the one Republican
senator who fell asleep during the “trial.” He later insisted he was only
considering the case deeply. And, no, he wasn’t snoring.)
It also seemed to Sen. McConnell like a great idea to start
the first day of the trial in the afternoon, so that proceedings would spill
over into prime time and into the hours after midnight. That way, most Americans
would give up watching and go to bed long before the hearings ended.
*
In one
poll, 69 percent said they want witnesses.
Watching Rep. Adam Schiff make the case for impeachment, once
proceedings kicked off, I thought at the very least he might make a few GOP
senators wince. He pointed out that most Americans wanted witnesses.
In one poll, 69% say they did.
Only 29% said they didn’t.
Logic tells us, also, that were we in the president’s place, we
would want witnesses to come forward, if, for instance, we had been accused of bludgeoning
a baby panda with a golf club.
We would want our innocence established.
Rep. Schiff pointed to the crux of the matter. President
Trump and his lawyers had refused to comply with any House subpoenas for
documents and had refused to allow any witnesses. He noted that if the president
could defy the House in this instance, he could, at some future date, defy the
Senate. Rep. Schiff pointed out that Senate precedent allowed for witnesses to
be called after the House presented its case.
Trump’s defenders said that that was a violation of the
Marquis of Queensbury rules and illegal under the Pure Food and Drug Act of
1906.
They hated the idea of witnesses. They thought all patriotic
Americans should be ready to load their weapons, and prepare for civil war, if
any Republican senators so much as hinted that witnesses and documents might
help prove – or even disprove – the impeachment case.
Democrats pointed out that after President Clinton’s case reached
the Senate in January 1999, and after more than three years of investigations,
three witnesses spoke before the jury of the Senate. In the impeachment trial
of Judge G. Thomas Porteous
in 2010, there were eleven witnesses. All were called during the Senate trial. Rep.
Schiff noted that the U.S. Constitution says clearly: “The Senate shall have
sole Power to try all Impeachments.” That is, the Senate holds a trial. McConnell
couldn’t just throw up his hands and say, I will be working in “total coordination” with the president’s
defense team and we are going to do his bidding.
But, yeah, he did.
So, yeah. Witness might be important.
Documentation likewise.
The Senate would have to vote in a few days on the matter.
Would they be allowed?
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Hunter Biden has not been accused of putting self-interest
above U.S. national security interests.
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In fact, Rep. Schiff played a tape of President Trump, some
weeks back, insisting he’d love to have witnesses.
One was also reminded: President Clinton had to testify under
oath –
and that was how he ended up with a charge of perjury included in his
impeachment. Trump? Nah. Republicans didn’t see any reason why he should testify.
Rather, a key GOP defense goes like this: If Democrats wanted witnesses, they
should have called them before sending their case to the Senate.
This, of course, is a supremely stupid position. First,
Republicans in the House complained because the witness that were called
testified behind closed doors. All those witnesses volunteered to testify. Then
Trump’s defenders complained because their side couldn’t have witnesses. But
they only wanted to call witnesses that Trump wanted, like Hunter Biden.
Note to all Americans: Hunter
Biden has not been accused of putting self-interest above U.S. national
security interests.
(Should he have been profiting off the family name in Ukraine.
No. See also: Ivanka, Eric and Donald Trump Jr., on the world stage.)
Republicans
in the Senate blow off their duty.
Most importantly, as Schiff had pointed out, Democrats
couldn’t get all the witnesses they needed because….talk really slow for
Trump fans….President Trump….refused….to
allow….any….of….the….witnesses….the Democrats subpoenaed. Same….with….the
documents.
In fact, a new batch of important documents was released just
before midnight on Tuesday, minutes before the deadline set by rules under the Freedom
of Information Act. Again, Trump’s defenders were hoping most Americans would
be tucked in bed and wouldn’t notice.
Those documents, from the Office of Management and Budget,
might help the president’s accusers prove their case. Or they might prove the
president’s innocence. Why not introduce them as evidence and demand unredacted
copies –
because the copies released under court order were heavily redacted.
We have already seen, after an earlier batch of documents was
released but heavily redacted, and then leaked in unredacted form, that
something fishy was involved in choosing what portions should be blotted (see:
1/2/20.).
One need not be biased against the president to be
suspicious. We might compare this situation to the case involving Richard M. Nixon.
When it became known that he had tapes of meetings in his office, lawmakers
demanded those tapes. Nixon offered to give up his “tapes,” but only in
transcript form.
Oh, and by the way, his aides would listen and write
up the transcripts.
Congress rejected his offer. The U.S. Supreme Court shot down
Nixon, 8-0, with one justice sick and in the hospital.
The tapes, themselves, would have to be released.
We know, too, that the U.S. Senate has conducted trials before, not just blown off their duty in
the process. The rules for the 1868 impeachment of President Andrew Johnson,
read in part:
The Senate shall have power to compel
the attendance of witnesses [emphasis added], to enforce obedience to its
orders, mandates, writs, precepts, and judgments, to preserve order, and to
punish in a summary way contempts of and disobedience to its authority, orders,
mandates, writs, precepts, or judgments, and to make all lawful orders, rules
and regulations, which it may deem essential or conducive to the ends of
justice.
So, if Republicans were so sure Trump was innocent, they would
be remiss in failing to compel witnesses to come forward, and by testifying,
make that innocence clear to the American people.
We know polls show Americans want witnesses. Monmouth
released the results of a new survey today, showing that 51% think witnesses
who refused to testify in front of the House inquiry should be compelled to
come before the Senate. Another 29% think they should be asked, but not
compelled. That might bring out former National Security Advisor John Bolton,
who has made clear he’s willing to testify if subpoenaed. You might shake loose
Don McGahn. He told Robert Mueller that Trump wanted him to obstruct justice
in the Russia investigation.
Only 16% of Americans in the Monmouth poll say they don’t want witnesses. And that number was swelled by
all the members of Team Trump who would rather have their molars yanked without
anesthesia than go before any official body and swear an oath to tell the whole
truth, and nothing but.
In a second, larger sampling, SurveyUSA reported that 71% of Republicans and 81% of independents want
witnesses. The figure for Democrats is 93%. The matter of which witnesses is a separate
matter.
Still. Most want witnesses.
Meanwhile, Mr. Blogger is doing his homework. You can find,
for example, a list of all the federal officials ever
impeached, starting with Sen. William Blount in 1794. Blount, like Trump, was
accused of putting self-interest ahead of national security. It was
alleged that he had conspired with the British to gobble up Spanish lands in
Florida and Louisiana, blocking U.S. expansion. Blount resigned from the
Senate, so charges were dropped, since the Senate lacked jurisdiction. Judge
John Pickering was the first to be impeached and removed from office in 1803,
on grounds of intoxication and unlawful handling of property claims. The
following year Justice Samuel Chase was impeached on grounds of “arbitrary and
oppressive conduct of trials.” Judge James H. Peck was impeached in 1830 for
“abuse of the contempt power” during court proceedings.
Both Chase and Peck were acquitted – but the argument Team Trump
has been making – that you can’t be impeached unless there’s an underlying crime,
like murder, rape, or check kiting, fails. Grounds for impeachment have varied,
including “intoxication on the bench,” and having an “improper business
relationship with business litigants.” When the Fox News crew insists that
“abuse of power” is not an impeachable offense, we see that Judge George W.
English was impeached in 1926 on the grounds of “abuse of power” and so
resigned his seat. Two federal judges were charged in 1933 and 1936 with “favoritism
in the appointment of bankruptcy receivers.” Judge Harry E. Claiborne was impeached
and booted for income tax evasion – an example which might make Trump start squirming
in his seat.
Guarding against “the
abuse or violation of some public trust.”
Finally, we know what the Founding Fathers said about
impeachment and why they saw it as a necessary feature of the government they
were creating. It was fear of abuse of power that moved them to divide the
government into three co-equal branches and build in as many safety features as
they could think of. In the Federalist Papers, Alexander Hamilton wrote that the impeachment power and ordinary laws
served different purposes. When it came to impeachment,
The subjects of its jurisdiction are those
offenses which proceed from the misconduct of public men, or, in other words,
from the abuse or violation of some public trust. They are of a nature which
may with peculiar propriety be denominated POLITICAL, as they relate chiefly to
injuries done immediately to the society itself. The prosecution of them, for
this reason, will seldom fail to agitate the passions of the whole community,
and to divide it into parties more or less friendly or inimical to the accused…and
in such cases there will always be the greatest danger that the decision will
be regulated more by the comparative strength of parties, than by the real
demonstrations of innocence or guilt.
The
Senate, with its members shielded from the momentary passions of the people, by
the fact they served for six years, would be the best “jury” to decide.
Hamilton added, “After having been sentenced to a perpetual ostracism from the
esteem and confidence, and honors and emoluments of his country, [the
individual, if found guilty] will still be liable to prosecution and punishment
in the ordinary course of law.”
In
Essay No. 66, Hamilton took up the subject again:
An absolute or qualified negative in the
executive upon the acts of the legislative body [that is: a veto power], is
admitted, by the ablest adepts in political science, to be an indispensable
barrier against the encroachments of the latter upon the former. And it may,
perhaps, with no less reason be contended, that the powers relating to
impeachments are, as before intimated, an essential check in the hands of that
body upon the encroachments of the executive. The division of them between the
two branches of the legislature, assigning to one the right of accusing, to the
other the right of judging, avoids the inconvenience of making the same persons
both accusers and judges; and guards against the danger of persecution, from
the prevalency of a factious spirit in either of those branches.
That last phrase, regarding “a factious spirit” might be read
by Republicans today as warning about the actions in the House, or, by
Democrats, as a warning about the doings of their Senate brethren.
It is clear, however, that the Founding Fathers feared
abuse of power in all its many manifestations.
For that reason, the U.S. Senate fails fatally if it allows a
president to defy the subpoena powers of one branch of Congress, when, in the
same way, Trump and all presidents to come could defy the subpoenas of both
branches in the future.
That would eviscerate the impeachment power and almost
guarantee future abuses of power.
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