Blog No. 246b. The Impeachment Trial: Witnesses or Not? Where’s Rudy?

In public opinion polls, Congress gets a consistently low approval rating, and the impeachment trial currently on display in the Senate is unlikely to change that appraisal. That may be unfair to the House Managers, who are making detailed and thoroughly researched presentations of the complex facts. But absorbing those presentations requires thoughtful and patient attention and at least a partially open mind. That being the case, it is not clear how effective they will be.

The trial procedure that Senate Majority Leader Mitch McConnell designed made little sense and, even after some modifications, still does not make much.  There was no convincing reason for delaying a decision on whether to call witnesses until after 24 hours of argument by each side, and Democrats were justified in their belief that the deferral is just a tactic to avoid ever issuing subpoenas for witnesses and documents. Whether that tactic is successful remains to be seen, but at this point it would not be wise to bet against it.

At around 1:40 A.M. on Tuesday night, Senator Chris Van Hollen of Maryland offered an eminently sensible amendment to end the wrangling over witnesses and documents. He proposed that the Chief Justice make initial rulings on subpoenas for witnesses and documents, subject to being overruled by a majority of the Senate. His amendment, like all others offered by Democrats, was rejected along party lines.

With McConnell’s procedure in place, the argument over witnesses and documents will be renewed after the close of both sides’ opening arguments. At that point, Republicans will argue, as they have already, that the president is entitled to dismissal of the Articles of Impeachment because they do not allege a “crime”—the violation of a federal criminal statute. Thus, Republicans contend, it does not matter what the facts are concerning what the president did or did not order and why. (They will, of course, also argue that the president did nothing wrong, but that bold claim is one that clearly calls for the admission and consideration of all available evidence.)

Contrary to Republicans’ position, the generally accepted view of scholars is that potential abuses of power, whether crimes or not, were central to the thinking of the Founders in providing the remedy of impeachment. As political historian John Broesamle has reminded me, Alexander Hamilton’s Federalist Paper No. 65 observed that:

The subjects of [a trial of impeachment] 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. (Upper case in original)

Nevertheless, the Senate could accede to the Republicans’ argument and that would provide a basis for avoiding the presentation of further evidence. The implications for the future of such an action are ominous. George Conway, a highly-regarded conservative lawyer and Trump critic, summed it up on Wednesday on CNN, saying “if this is allowed to pass, if a president is allowed to violate the law, as the GAO found, to withhold money for his own personal, political gain, then all bets are off with future presidents.”

If the Senate allows witnesses to be called in the present case, it is not clear who they will be or what effect their testimony will have. Democrats have identified four witnesses they wish to call: John Bolton, Mick Mulvaney, Robert Blair and Michael Duffey. Each is a relevant and legitimate witness, but only Bolton appears to have the potential to offer testimony sufficiently dramatic to influence public opinion, let alone the vote of the indentured Republicans who serve, or at least occupy seats, in the Senate.

Acting Chief of Staff Mick Mulvaney has direct knowledge of Trump’s thinking and of his direct orders regarding actions like withholding aid to Ukraine. But even if Mulvaney does appear, much of his testimony may be subject to a claim of executive privilege and, whatever the merits of that claim, it is likely to be upheld by the Republican majority. In the end, it is doubtful that Mulvaney’s testimony would be any more embarrassing than his notorious “Get over it” press conference. Testimony from Blair and Duffey would vividly portray the gyrations of the Defense Department and OMB as they attempted (unsuccessfully) to stay within the law while obeying Trump’s order. Although their accounts would be interesting and helpful, they would probably not add fundamentally to the damning narrative already established.

John Bolton is more of a wild card, and it appears that neither Republicans nor Democrats have a clear idea of what his testimony would be. As in the case of Mulvaney, much of Bolton’s testimony might be blocked by a claim of executive privilege and, possibly, restraints on the disclosure of classified information. Nevertheless, published reports of White House staff anxiety over the prospect of Bolton’s testimony, and their search for ways to block it, are enough to whet the appetites of Democrats. On the other hand, Bolton, a fixture of the Republican establishment, may be reluctant to give testimony harmful to a president still applauded by the bulk of his party.

On the Republican side, Mitch McConnell has remained silent on the subject of potential witnesses for the president, but a number of his caucus have expressed interest in hearing from Hunter Biden and Joe Biden. It is doubtful that testimony of either of the Bidens would materially aid Trump’s defense, and the political impact on Vice President Biden would be uncertain. It would remind voters of Biden’s questionable judgment in allowing the appearance of conflict that arose from his son’s lucrative position on the Burisma board. On other hand, there is no evidence that the Vice President took any illegal or improper action and, if he handled his testimony well, it might even work to his benefit.

Where’s Rudy?

What is remarkable is the conspicuous lack of interest that both Republicans and Democrats have shown in calling Rudy Giuliani as a witness. Equally remarkable is the failure of the media to notice and remark on that fact. Obviously, both the House Managers and the President’s lawyers view Giuliani as a “hand grenade” (to borrow John Bolton’s apt phrase) that might blow up on them as well as on the intended target. Yet Giuliani was at the epicenter of Trump’s Ukraine machinations. Exploring those schemes and maneuvers without Giuliani’s testimony may not be quite the equivalent doing Hamlet without the Prince of Denmark, but it’s close. Democrats do not need Giuliani’s participation to make a strong case, but his appearance could add the drama that so far may seem lacking. Adding Giuliani’s colorful sidekick, Lev Parnas, could only add to the excitement.

To the extent that Democrats continue to ignore Giuliani as a witness, they undermine their claim that they are seeking disclosure of all relevant facts in search of the truth. They should also recognize that if that if they have any hope of gaining a conviction of Trump in the Senate, now is the time to take some risks.