Now that House Speaker Nancy Pelosi has charged her colleagues with the tasks of drafting and approving articles of impeachment against President Donald Trump — and assuming the House votes to impeach — our focus should shift to a discussion of what the Senate proceedings are going to look like.
If the Senate conducts a trial — an actual search for the truth that involves a serious reckoning by our elected leaders of what the president’s proven conduct means to our democracy, and not a mere formality shoehorned into a two-week time slot that does not upset the Senate calendar — the nation will be better served.
Yet, although it is clear that the bulk of the House committees’ fact-finding is complete, there has been a steady drumbeat by cautious editorial boards, commentators and even some legal scholars that the House impeachment proceedings should be put on pause.
The concern is that the House should defer to the courts for definitive rulings on the power of Congress to compel administration witnesses to testify and on the scope of executive privilege. With such a ruling, the testimony of former national security adviser John Bolton, acting White House chief of staff Mick Mulvaney, Secretary of State Mike Pompeo, former White House counsel Don McGahn and others might be available — and would serve to clarify questions about Trump’s July 25 phone conversation with Ukrainian President Volodymyr Zelenskiy and whether the president used foreign policy maneuvering for his personal benefit.
So, the argument goes, if Democrats would just wait for the Supreme Court, they might have a stronger, or at least a clearer, case for the president’s removal. The flaw in this argument is that neither the House nor the Senate is confronted with such a binary choice: waiting for the Court to decide or forgoing testimony and evidence from these key, some would argue crucial, witnesses.
The Senate impeachment proceedings are a trial over which the chief justice will preside and make rulings on the evidence presented and witnesses called to testify. Chief Justice John Roberts could rule on the scope of executive privilege with respect to these high-ranking administration officials as well as any diplomats, national security staff or budget office staff barred up until now by the White House from providing evidence. Under the Senate rules, the chief justice’s decision would be final, subject only to a vote of the full Senate. Further review by the courts, even the Supreme Court, would be unnecessary. If some or all of these witnesses are allowed to testify, Republicans would have to weigh the political risk of blocking testimony deemed by the chief justice of the Supreme Court not privileged and relevant to the charged offenses.
At the same time, a pretrial ruling rejecting the White House’s broad assertions of executive privilege could present problems for both sides. Calling witnesses not previously deposed runs afoul of the experienced trial lawyer’s prime directive, “never ask a question you don’t already know the answer to.” But, if the procedures used in the impeachment of President Bill Clinton are followed, both sides could identify witnesses they intend to call at trial. Those witnesses would then be deposed by the House managers and president’s counsel before the Senate trial begins.
Here, the potential reward for Democrats to identify and call certain witnesses not yet deposed might outweigh the risks. If, for example, the House approves an article making Trump’s obstruction of the Mueller investigation one of the grounds for Trump’s removal, McGahn would become a key witness. Since McGahn was interviewed extensively by the FBI during the Mueller probe, he could be examined with the aid of his prior statements with little risk. Others, such as the officials in the budget office who were directed to withhold the military aid, could be safely examined with whatever written documents exist to confirm the prior testimony of Ambassador Gordon Sondland and other State Department and National Security Council officials who were all convinced from the facts and circumstances known to them that release of those funds was being controlled by the president.
Calling other high-ranking administration witnesses might be more problematic. Some, like Bolton, may be sufficiently restricted by the narrative already developed through other House testimony. Democrats might risk calling him if they want to present the strongest case for removal. The chief justice might find that with respect to Bolton or others at his level the president could still assert executive privilege, but rule that the president’s refusal to allow these witnesses to testify permits the senators (and thus the country) to assume that any testimony they might have given would have been unfavorable.
In an impeachment trial, unlike a criminal trial, the president is expected to mount a defense. The president’s failure to call key witnesses under his control could be viewed as an admission of guilt.
If the Senate opts for a serious trial, witnesses such as Bolton, Mulvaney, Pompeo and McGahn might still be heard by citizens interested in what they have to say. Perhaps then we might get a full-throated examination of the events that have brought us to this place.
Patrick Deady is a former federal prosecutor now practicing in Chicago. He wrote this for the Chicago Tribune.