Published by The Lawfare Institute
in Cooperation With
The 1992 Robert Altman movie “The Player” has a scene in which movie studio executives are sitting around complaining about the cost of acquiring scripts from outside screenwriters and one of them proposes having the studio generate its own stories instead. In an effort to demonstrate that this is plausible, he goes around the table having each executive choose a story from that day’s newspaper, and he verbally creates on the spot a brief screenplay précis out of it.
The protagonist, a rival studio executive, muses mockingly in response, “Yeah. I was thinking what an interesting concept it is to eliminate the writer from the artistic process. If we can get rid of the actors and directors, maybe we've got something.”
I’ve been thinking what an interesting concept it is to eliminate the witness from the trial process—and the evidence, for that matter. If we can get rid of the lawyers and judges and jurors, maybe we’ve got something.
The Senate’s decision to move to a verdict in the trial of President Trump without itself hearing any testimony or exploring any untapped evidence sends a message of contempt to the House of Representatives and to the considerable majority of Americans who carry the eccentric belief that evidence is somehow intrinsically connected to adjudication. It is also a message of slavish subservience to the president.
The precise content of the Senate Republicans’ message, however, is a bit muddled. If you listened to the president’s defenders and the senators who voted with them to proceed in ignorance to a vote on the president’s fate, you might have emerged a bit confused about why precisely they were so precipitously racing to a verdict. Why not pause before doing so, at least long enough to know the full scope of the president’s conduct? Why exactly would senators vote to proceed on a matter of grave national security significance ill-informed when the evidence remains available to them?
You’d be confused because the reasoning of the president’s legal team and the senators who bothered to explain themselves involved a multiplicity of arguments woven together in a kind of a tangle, in which emphatic articulation and repetition wholly supplanted logic.
Writing over at The Bulwark, Philip Rotner addresses one by one the Republican arguments against witnesses. As Rotner describes, the arguments are really weak, most of them just plain dumb. I have a few additional thoughts here on the specific arguments. Mostly, however, I want to trace how they interact with each other and what role they are really playing. Having watched hours and hours of their articulation, I honestly don’t think they are meant to persuade anyone of anything. Rather, I think they operate as a statement of faith. Partly because they are so weak, their embrace expresses faith in the leader, faith in the party as a protective shroud and faith that the mob the leader controls will not attack the faithful.
The argument against the Senate’s hearing the evidence begins with the fundamental claim that the evidence does not matter. It is a bold claim. And one is tempted to respond to it by quoting Rep. Earl Landgrebe’s famous line during the Nixon impeachment: “Don't confuse me with the facts. I've got a closed mind. I will not vote for impeachment. I'm going to stick with my president even if he and I have to be taken out of this building and shot." Or perhaps instead by quoting George Orwell’s famous line: “The party told you to reject the evidence of your eyes and ears. It was their final, most essential command.”
In theory, however, the argument that the evidence does not matter is not completely crazy. In other contexts, it has a lot of merit. The theory goes that the House has not alleged impeachable offenses, so it doesn’t matter if the House managers can prove their allegations. They can put on evidence all day, but if they are proving conduct that does not rise to the level of impeachable misbehavior, who cares? A variant of this argument is that the president’s conduct is known already, and there’s little dispute about it, so the Senate’s role is really to assess his behavior, not to investigate it.
As Rotner rightly notes, this is the best argument for dispensing with witnesses and evidence. After all, in both civil and criminal litigation, a defendant can file a motion to dismiss—arguing that even if all the facts could be proved, he or she would not be reasonably subject to judgment. Moreover, in the Bill Clinton impeachment, the presence of a complete record in the form of the Starr Report and its accompanying documentation made the taking of additional testimony unnecessary, though the Senate did some witness depositions anyway. Senators had before them a record adequate to assess the charges, so near-summary adjudication was reasonable. What was before the Senate in that case really was a question of judgment: Given the record Starr had amassed, the question was whether individual senators believed the House had proved its case, and whether they thought the case, if proved, warranted the president’s removal.
It simply is not possible to ask a similar question here. The record is emphatically not complete, there being key witnesses whose testimony has never been taken. John Bolton is the most prominent of these but by no means the only one. Without knowing what these witnesses would say, how can a senator advance the proposition that the evidence warrants summary judgment in favor of the president? Is there no set of facts these witnesses could conceivably testify to that would warrant conviction?
Getting to yes on this question requires quite a leap. To argue that the evidence does not matter, one necessarily has to argue that the House’s impeachment articles are deficient on their face—that is, that they do not state impeachable conduct even if true and proven. This leads the president’s lawyers into a truly silly formalism about articles of impeachment: the idea that the House’s allegation of abuse of power does not describe impeachable conduct because it does not allege a crime.
The reason this point is purely formalistic, not substantive, is that the first article of impeachment actually does describe criminal activity. It describes a quid pro quo scheme of holding policy outcomes hostage to personal, political favors to the president. Whether this conduct meets the specific elements of the bribery statute or not would, well, depend on evidence that the Senate chooses not to hear. But it surely amounts to “criminal-like conduct”—as Alan Dershowitz describes the impeachable offense. What the article does not do is name the conduct with a citation to the criminal code.
Which brings us to formalism. Surely, the impeachability of the offense does not depend on whether the name of the article of impeachment, as opposed to the conduct within it, describes a crime. For example, an impeachment article describing treasonous conduct within the meaning of the Constitution’s definition of treason would presumably not be deficient if the article were headed “Betraying the Country,” instead of “Treason.” The first article against Trump plainly describes a shakedown scheme closely akin to bribery or extortion. The question is whether the evidence supports the charge. There seems to me no good argument, even if criminality is required for impeachment (which I do not believe), that the article describes conduct too remote from crime to qualify.
To get around this problem requires the president’s defenders to resort to presidential power fundamentalism—the idea that Article II of the Constitution so empowers the president that shaking down a foreign leader for personal political favors is within his lawful powers. This is effectively the position Sen. Lamar Alexander took when he declared Trump’s conduct bad but said it “does not meet the United States Constitution’s high bar for an impeachable offense. …The Constitution does not give the Senate the power to remove the president from office and ban him from this year’s ballot simply for actions that are inappropriate.” Sen. Marco Rubio, in a much derided statement, took what seems to me a less offensive position, one that assumed the president’s actions could warrant removal but that proposed exercising discretion and nonetheless not supporting removal. By contrast, Alexander’s view, which was by far the more common among his colleagues in the Senate, accepts—if only implicitly—that the president has the power to act as he did.
But even presidential power fundamentalism doesn’t get Alexander or his colleagues across the finish line. There is, after all, some level of venality that would, by any standard, push this matter into the realm of the impeachable. Imagine, for example, that Bolton were to testify that the president told him explicitly that he was conditioning aid on the delivery of investigations and that Trump said explicitly as well that his goal was to damage a political rival. Imagine, if you like, that Bolton’s testimony would satisfy all the elements of the bribery statute. Nobody—not even Attorney General William Barr—argues that bribery is within the president’s Article II powers. And it is, in any event, specifically named in the Constitution as a basis for impeachment. Given that the evidence rather strongly suggests bribery even without Bolton’s testimony, to refuse to hear additional evidence requires either presuming that Bolton and the other unheard witnesses could not possibly tip the scales into an inarguably impeachable offense, or saying that one simply does not care whether the president solicited a bribe.
It is, I think, the discomfort associated with arguing that the president has the power to do these things (according to Alexander) or that it is forgivable for him to do them (according to Rubio) that leads many of the senators to seek refuge in a softer argument. As Rubio put it, “I disagree with the House Managers’ argument that ... failing to remove the President leaves us with no remedy to constrain this or future Presidents. Congress and the courts have multiple ways by which to constrain the power of the executive. And ultimately, voters themselves can hold the President accountable in an election, including the one just nine months from now.” The idea is that the Senate doesn’t need a robust removal process, or even to hear from witnesses within a more modest process, because there is an alternative remedy available.
This would be a more compelling argument if Rubio proposed to deploy any of the “multiple ways ... to constrain” the president to which he refers. But he does not. He’s not introducing legislation to prevent Trump from behaving in this fashion in the future. He’s not holding nominees hostage to some commitment to restraint going forward. And Rubio’s deference to voters as his preferred means of holding Trump accountable is quite empty, since he is not proposing to refuse to support the president’s reelection.
Indeed, Rubio’s position is not that it is the voters, not senators, who should depose Trump and that he will thus campaign against Trump in Florida. And while Alexander likewise argued on NBC’s “Meet the Press” that “the people” are the appropriate remedy for Trump’s behavior, he also does not propose to avail himself of that remedy. Both men support Trump’s reelection, meaning that they actively oppose the use of the remedy they suggest as the alternative to removal by impeachment—which is to say that they do, in fact, oppose accountability for what Trump did. They support him, in both the electoral and the impeachment contexts, despite what he has done.
The contradictions between these positions are so inherent and deep that it becomes convenient at some point for the senators to change the subject. Instead of focusing on the conduct the House investigated, senators choose to focus on the conduct of the House’s investigation instead. This is a time-honored diversionary tactic in defense lawyering. In a criminal proceeding, after all, showing that the police erred in the conduct of a case can lead to suppression of the evidence against the defendant.
But there is no exclusionary rule in impeachment trials. Nor is the nature of the House’s supposed errors the sort that would lead to exclusion of evidence in a criminal proceeding anyway; the failure to call a witness before a grand jury would not preclude calling that person to testify at trial.
Yet the president’s lawyers and many senators argue with apparently straight faces that the House’s failure to call John Bolton and others before impeachment—and to litigate the matter to exhaustion—should preclude the Senate’s calling them now. Why?
The answer is quite nonsensical. Here’s how Sen. Lisa Murkowski put it in her statement explaining her opposition to witnesses:
The House chose to send articles of impeachment that are rushed and flawed. I carefully considered the need for additional witnesses and documents, to cure the shortcomings of its process, but ultimately decided that I will vote against considering motions to subpoena.
Given the partisan nature of this impeachment from the very beginning and throughout, I have come to the conclusion that there will be no fair trial in the Senate. I don’t believe the continuation of this process will change anything. It is sad for me to admit that, as an institution, the Congress has failed.
Pause a moment over the senator’s logic. She seems to be saying that because the House’s product was hasty and deficient and partisan, the Senate should punish the body by proceeding in a fashion that is hastier, more deficient, and every bit as partisan. She will vote to prevent the Senate from hearing evidence, to blind herself to information relevant to her own obligation to decide the president’s case, she says, because “I don’t believe the continuation of this process will change anything.” It won’t change anything, that is, except whether she and her colleagues have access to more, rather than less, probative evidence on the question before them. If the House decision was hasty and partisan and left a record that is incomplete, that would seem to argue for the Senate proceeding in a fashion that was careful and deliberative, and it would seem to argue for senators to behave in a nonpartisan fashion.
Sen. Rob Portman was a trifle more coherent in his explanation of this point. He offered that “it sets a dangerous precedent—all but guaranteeing a proliferation of highly partisan, poorly investigated impeachments in the future—if we allow the House of Representatives to force the Senate to compel witness testimony that they never secured for themselves.”
Portman did not, unfortunately, reflect on what precedent it sets for the Senate to impose a no-new-evidence rule on the House, disabling the House from presenting at trial any evidence it did not acquire itself before impeachment. This will of course incentivize presidents (and judges) to withhold material as long as possible during impeachment investigations, thus either delaying impeachment or creating an argument for the evidence’s inadmissibility if impeachment proceeds without it.
Since the Senate did not hear testimony from any of the witnesses who did testify before the House investigation, the rule Portman endorses is really a no-witnesses-at-all rule. If a witness has testified before the House, after all, her testimony is not needed in the Senate. If not, Portman would preclude it because the House did not secure it earlier. Portman’s rule would turn the Senate into an appellate body. The Constitution, by contrast, gives the Senate the role of trying impeachments.
The icing on this ridiculous cake is the notion that hearing witnesses would take too long. Sen. Portman frets that “processing additional witnesses will take weeks if not months, and it’s time for the House and Senate to get back to addressing the issues the American people are most concerned about—lowering prescription drug costs, rebuilding our roads and bridges, and strengthening our economy.” Leave aside for a moment that the Senate hasn’t been doing a lot of lowering drug prices or dealing with infrastructure of late. Portman’s argument might have been a good one to make at the Constitutional Convention against giving the impeachment trial function to the Senate in the first instance. It may be a good argument for, as the Senate trial rules contemplate, assigning the evidence-taking function to a committee (see Rule XI). It is a singularly lousy argument for interpreting the Senate’s clear constitutional responsibility to try impeachments as including the option of not trying impeachments.
When smart people, capable people, advance arguments so resoundingly and pervasively terrible—when they advance a proposal for a trial that offends the very idea of a trial—you have to ask what role the argument is playing other than seeking to persuade people. That these arguments persuade nobody is clear from the poll data, in which support for hearing from witnesses reached as high as 75 percent and did not decline over the period in which the president’s lawyers made their case.
But persuasion, I think, is not the point. The point, rather, is tribal affiliation. This is a credo of sorts, a public affirmation of the party line designed to ensure that one is not Romneyed—that the leader’s tyrannical rage is directed elsewhere, that his self-appointed enforcers do not deprive one of the benefits of being in the herd.
Yes, inside the herd, life is abusive. But outside, it is very very cold and one is very exposed.