Constitutional Crisis: Sham Senate impeachment trial to begin later this week

House Speaker Nancy Pelosi announced Friday she will send the articles of impeachment against President Donald Trump to the Senate next week:

“I have asked Judiciary Committee Chairman Jerry Nadler to be prepared to bring to the Floor next week a resolution to appoint managers and transmit articles of impeachment to the Senate,” Pelosi said in a letter to House Democrats.

Pelosi added she will talk to the caucus at their weekly meeting Tuesday morning on “how to proceed further.”

Senate Majority Leader Mitch McConnell (R-Ky.) — having already secured GOP votes for his preferred trial framework — could start the impeachment trial shortly after he receives the articles.

Pelosi and Senate Minority Leader Chuck Schumer (D-N.Y.) had sought to pressure Republicans into accepting new witnesses and evidence in a bid to ensure a fair trial, but McConnell ultimately rebuffed them.

This is the opposite of what “Moscow Mitch” McConnell had to say about witnesses during Bill Clinton’s impeachment trial in 1999, so spare me his bullshit about the so-called “Clinton Rules” (in Clinton’s case, Special Counsel Ken Starr had deposed all the witnesses and provided all the relevant testimony and documentary evidence to Congress. In Trump’s case, Congress has had to conduct its own investigation and Donald Trump has prohibited witnesses from cooperating by testifying and has refused to provide relevant documentary evidence to Congress. This is why Article II of the Articles of Impeachment is for obstruction of Congress, something that accessory “Moscow Mitch” McConnell is currently aiding and abetting).

A Senate trial should be like any other trial.

Senators should hear from witnesses. Senators should see the documents.

Only then can they make the best possible decision regarding the President's misconduct.

Once upon a time, Mitch McConnell felt the same. pic.twitter.com/ilblPGgwZM

— Adam Schiff (@RepAdamSchiff) January 10, 2020

“Moscow Mitch” McConnell from 1999 was correct. Noah Bookbinder, executive director of Citizens for Responsibility and Ethics (CORE) in Washington and a former federal corruption prosecutor explains The Senate has conducted 15 impeachment trials. It heard witnesses in every one.

President Trump’s allies in the Senate want to move forward to an impeachment trial without a commitment to calling witnesses. They insinuate that precedent is on their side, but they’re wrong.

The Senate has heard testimony from witnesses at every trial it has completed in its 231-year history. If the current Senate takes seriously its constitutional responsibility to conduct an impeachment trial of Trump and the oath its members will take to “do impartial justice,” then it must not depart from this unambiguous body of precedent. It must hear from witnesses to the president’s misconduct.

Only 19 other individuals besides Trump have been impeached by the House of Representatives. The Senate completed a trial in 15 of those cases, and in every single one of them, it heard testimony from witnesses. Those cases include the only two prior instances in which a president was impeached. At the impeachment trial of Bill Clinton, the Senate permitted House managers to obtain trial depositions of three witnesses — Monica Lewinsky, Clinton confidant Vernon Jordan and White House aide Sidney Blumenthal — and the full Senate viewed video excerpts of those depositions. At the impeachment trial of Andrew Johnson, the Senate heard testimony from 41 witnesses.

As Bookbinder concludes:

It is time for each and every senator to decide whether they will uphold their solemn oath to do impartial justice at Trump’s impeachment trial. Departing from Senate precedent by refusing to hear from witnesses with firsthand knowledge of the president’s abuses of power would be a betrayal of that oath. It would also be a betrayal of the American people, who are counting on them to uncover the truth — the whole truth — and to act on it.

Politico continues:

Pelosi, Schumer and rank-and-file Democrats have complained that McConnell will use the process to block witnesses, thus avoiding the introduction of new evidence that has emerged since the Dec. 18 vote by the House to impeach Trump. Former national security adviser John Bolton, ousted by Trump in early September, has offered to testify if subpoenaed about the Ukraine scandal since that date. Bolton was a key figure in the internal White House debate over Ukraine military aid that led to Trump’s impeachment.

In Maine, Sen. Susan Collins (R-Maine) said she’s been working with a small group of senators to ensure there’s a pathway to calling witnesses, despite the GOP’s plans to defer those decisions until later in the trial. Sen. Mitt Romney (R-Utah) has also said he’d like the opportunity to call witnesses at some point in the trial, including Bolton.

“We should be completely open to calling witnesses,” Collins said Friday, according to the Bangor Daily News.

If you are counting on the “mythical moderate from Maine” to do the right thing, you are badly mistaken and a fool after all the times she has sold you down the river. Collins has zero credibility.

George T. Conway III and Neal K. Katyal in an op-ed explain How Pelosi should play her impeachment cards:

House Speaker Nancy Pelosi (D-Calif.) has announced that she plans to transmit the articles of impeachment to the Senate, but that does not mean she has lost in the seeming standoff with Senate Majority Leader Mitch McConnell (R-Ky.) over whether to call witnesses at the Senate trial. McConnell has said “there’s no chance the president’s going to be removed from office” and “there will be no difference between the president’s position and our position.” In response, Pelosi still has cards in her hand — if she plays them — because the House approved two articles of impeachment against President Trump.

The first article of impeachment effectively charges the president with shaking down Ukraine; the second impeaches him for his unprecedented obstruction of Congress. That gives the speaker room to maneuver. She could choose to tweak her announcement and send only the second article, on obstruction, for trial. Or she could transmit them both — along with a House-approved provision advising the Senate that if it fails to obtain adequate witnesses and documents, the House will reopen the investigation into Article I and subpoena that material itself.

Separating the two articles — our preferred approach — would make perfect sense. When it comes to the second article, all the evidence about Trump’s obstruction is a matter of public record. There’s nothing more to add, so the second article is ripe for trial. But as to the first, although there is plenty of evidence demonstrating Trump’s guilt, his obstruction has prevented all of the evidence from coming to light.

Since the House voted to approve the articles of impeachment last month, new revelations of Trump’s involvement have emerged, including emails showing that aid was ordered withheld from Ukraine 91 minutes after Trump’s supposedly “perfect” phone call with President Volodymyr Zelensky. Trump’s former national security adviser, John Bolton, has said he is willing to testify before the Senate if subpoenaed, and Bolton’s lawyer has said he has new information, yet McConnell has balked at assurances that Bolton would be called.

UPDATE: The defendant in the White House will continue to obstruct Congress and to obstruct justice by asserting a bogus claim of “executive privilege” to prevent John Bolton from testifying. Trump Will Invoke Executive Privilege to Block Bolton Testimony.

Former federal prosecutor Cynthia Alksne explains Why Trump’s plan to bar Bolton from testifying won’t work: “There are limits to executive privilege”:

“That’s not how executive privilege works. Typically what happens is the witness at least shows up, and then if there’s specific questions he or she can’t answer, then you invoke executive privilege. Explain this for us.”

[T]the White House has used this notion of executive privilege or some kind of absolute immunity to try to get people not to come at all, not to even sit in the chair and have to face the questions. The idea with executive privilege is we want to protect important discussions between members of the executive about matters of policy so that a person would come, sit in the chair, be asked a question. If it had to do with a real policy issue, then the question could be blocked.”

“But there are limits to executive privilege,” she continued. “For instance, you can’t use executive privilege to cover up a crime, and what we have here is extortion, and so executive privilege does not apply to the questions about the Ukraine extortion.”

“It doesn’t also apply to people who are outside the executive branch, so conversations with [Rudy] Giuliani, conversations he had with Lev Parnas and Igor Fruman, what they were going to do to extort Zelensky, none of that is covered by executive privilege.”

Pro Tip: This is where Chief Justice John Roberts as presiding officer of the impeachment trial will either be proactive and enforce the federal rules of evidence for a fair trial, or cement his place in infamy for being a ceremonial figurehead presiding over a sham trial. The pressure is on the Chief Justice.*

How can one conduct a “trial” without knowing this evidence? As lawyers, we have never heard of a trial without witnesses. Both past impeachment trials of presidents featured witnesses — including 41 in the impeachment of President Andrew Johnson. And the lack of witnesses is particularly striking given the shell game Trump and his Republican colleagues have played. In the House, Trump prevented executive branch employees from testifying, but said some of them would be able to testify in the Senate. Now that we are in the Senate, Republicans say these folks should have testified in the House. Lewis Carroll would be pleased.

Other senators, including Florida Republican Marco Rubio, have said that the record in the Senate must be limited to the evidence generated in the House. This is a terrible argument, but it underscores the need for the House either to obtain a commitment from the Senate to gather the evidence or to warn that it will do it itself.

McConnell claims he is adhering to the rules in the impeachment of President Bill Clinton. But there’s one big difference: Clinton didn’t gag all the witnesses and documents in the House and the predecessor investigation; as a result, there was a full record before the Senate. And there were, in fact, witnesses who were deposed as part of the Senate trial nonetheless. This time, the reason this evidence wasn’t generated in the House has everything to do with the defendant in the impeachment case itself. That is the case for sending up the second article now, to put the spotlight on Trump’s obstructionism.

The core of the second article is captured by the principle that no one is above the law in the United States. Indeed, no president, not even Richard M. Nixon, has ever tried to block all witnesses and documents in an impeachment inquiry. Nixon thought about it but backed down quickly. The impeachment here is not just about Ukraine. It’s about a president who thinks he does not even have to submit to a constitutionally authorized congressional inquiry. This stance is particularly galling because Trump’s attorney general, William P. Barr, gave Trump a temporary get-out-of-jail-free card after special counsel Robert S. Mueller III found several instances of potential obstruction of justice; Barr claimed that the president could only be impeached, not indicted. Yet now the shell game continues — with Trump turning around and saying he can’t be impeached and investigated either.

Holding the first article back and letting the second go forward would be a powerful and precise response to McConnell’s unprecedented attempts to avoid committing to a real trial. It makes practical sense but also highlights what’s at stake here. Trump would be forced to undergo two impeachment trials instead of one — but that’s a fair price for him to pay for his attempts to hide evidence from the American people.

If, alternatively, Pelosi sent both articles up with a formal note that the House would step back in if the Senate failed to proceed appropriately, that would be a fair price for McConnell to pay. The speaker would, essentially, be guaranteeing that Trump would face another investigation because of McConnell’s insistence on a sham trial, one that fails to call willing witnesses or deal with relevant, if potentially damaging, evidence.

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* Attorney James Robenalt makes an interesting argument based upon the concurring opinions in Nixon v. United States (1993) — Walter L. Nixon, a federal judge in Mississippi who was impeached in 1989 and removed from office. The Supreme Court can review an unfair impeachment trial:

[Justices] Byron White, Harry Blackmun and David Souter — argued that, while Nixon deserved to lose, it was possible that one day the Senate would conduct such an unfair impeachment trial that the courts would be obliged to hear a case if an aggrieved party sought a judicial remedy. That’s precisely the situation we may face today.

* * *

The Supreme Court’s vote against Nixon was 9 to 0. But White and Souter filed concurring opinions (Blackmun joined White’s) that contemporary courts might draw on, should the Senate vote, after a trial that’s clearly perfunctory, to keep Trump in office.

* * *

[T]here are surely limits, White, Blackmun and Souter argued. What if the trial were manifestly bogus? The issue had come up in the oral argument for the case. White asked the solicitor general (Kenneth Starr, as it happens) if, after the House sent over articles of impeachment, the Senate could, “without any procedure whatsoever,” unanimously find the accused guilty on the grounds that he was “a bad guy.” The government replied that, yes, the Senate indeed had that latitude.

That answer troubled several justices. While conceding that it was “extremely unlikely that the Senate would abuse its discretion and insist on a procedure that could not be deemed a trial by reasonable judges,” White wrote, the scenario was hardly unimaginable — and would provide grounds for judicial review. “Were the Senate, for example, to adopt the practice of automatically entering a judgment of conviction whenever articles of impeachment were delivered from the House it is quite clear that the Senate will have failed to ‘try’ impeachments,” White wrote.

If the Senate were to convict “upon a coin-toss,” Justice Souter added, “or upon a summary determination that an officer of the United States was simply ‘a bad guy,’ judicial interference might well be appropriate.”

“In such circumstances,” he wrote, “the Senate’s action might be so far beyond the scope of its constitutional authority, and the consequent impact on the Republic so great, as to merit a judicial response despite the prudential concerns that would ordinarily counsel silence.”

* * *

If [McConnell] dispenses with witnesses and speedily steers the outcome to the one desired by the White House, that would reduce the Senate proceeding to the kind of “summary determination” that the three justices warned about. Collectively, such actions could be seen by reasonable judges as “seriously threatening the integrity of the results” — the standard Souter suggested should trigger judicial review.

Since the Constitution grants the chief justice the privilege of presiding over the trial, he ought to have — and in my view does have, under proper constitutional interpretation — considerable power to steer the Senate toward reasonable standards for weighing evidence and rendering judgments. He cannot and should not be a potted plant. The current Senate rules, however, reduce the chief justice’s role to one of subservience and ceremony; even his rulings on admissibility of evidence can be overridden by the Senate. That cannot possibly be what the founders intended.

Yes, the founders provided that the House would have “sole power” over impeachments and the Senate “sole power” over trials of impeachment. But the Constitution also grants “all legislative powers” to the House and Senate, and still the Supreme Court exercises routine judicial review over laws. If McConnell and his Republican colleagues insist on setting rules that turn the trial into a farce, then the matter would be ripe for judicial review, as outlined by the various justices in Nixon v. United States. The House — through the speaker or the impeachment managers — could take the matter to court.

Pro Tip: In the very unlikely event this were to occur, Chief Justice John Roberts would be required to recuse himself because he cannot sit in review of actions that he took as presiding officer over the impeachment trial.