Below is my column in The Hill newspaper on precedent created by the Democrats against their own case for a full trial in the Senate.
Here is the column:
When William Shakespeare wrote that “all the world is a stage” and “one man in his time plays many parts,” he could have probably had in mind Senator Charles Schumer. In 1999, the Democrat from New York famously opposed witnesses in the trial of President Clinton as nothing more than “political theater.” Now Schumer has declared that witnesses and a full trial are essential for President Trump, and that a trial without witnesses would be deemed the “most unfair impeachment trial in modern history.”
That does not include the Clinton case where Schumer sought to proceed to a summary vote without a trial. As the Senate now gears up for the third presidential impeachment in history, the fight has begun over the rules and scope of a trial. The Framers were silent on the expected procedures and evidence for a trial, beyond the requirement of a two-thirds vote to convict a president. The only direct precedent on these issues is derived from two very different trials, those of President Johnson and Clinton.
By sending a thin record to the Senate, the House could not have made things easier for Trump. Since the House did not take time to subpoena critical witnesses, such as former national security adviser John Bolton, or to compel testimony of other witnesses, the Senate could simply declare that it will try the case on the record supplied by the House, a record that Democrats insist is already conclusive and overwhelming. Moreover, in reviewing the past trials of Johnson and Clinton, Democrats may have to struggle with precedents of their own making. Indeed, Republicans could argue that a trial without witnesses is impeachment in Democratic style.
THE BYRD MOTION
The first question for the trial could be whether there should even be a trial held at all. In early England, the House of Lords often refused to hold trials on impeachments, which often were raw political exercises. In the Clinton trial, Democrats moved to dismiss both impeachment articles as meritless. The motion by Senator Robert Byrd failed on a largely party line vote with Democrats, including Senator Joe Biden, Senator Dianne Feinstein, and Schumer, opposing having any impeachment trial at all.
Ironically, the obstruction of Congress article in the Trump impeachment would make a stronger case for such a threshold dismissal. The House adopted a brief investigation in order to impeach by Christmas. Trump has challenged the demands from Congress for testimony and documents in court. President Nixon and Clinton both took such appeals to the Supreme Court then lost. I disagree with the White House assertions of immunity and privilege. However, Democrats have taken the position that it can set an artificially short period of investigation and impeach a president who goes to court instead of simply yielding to the demands from Congress.
This would allow lawmakers to effectively manufacture the grounds for impeachment by setting abbreviated investigations then impeaching when presidents turn to the courts. In this case, the House burned more than three months without issuing subpoenas to key witnesses. It even pulled a subpoena for an impeachment witness rather than have the court rule on its merits. Meanwhile, other courts have ruled on these matters, such as the court order for former White House counsel Don McGahn to appear. An appellate court ruling could be expedited on that and other cases but not by Christmas. Worse yet, the Supreme Court has agreed to review decisions ordering Trump to turn over tax and financial records.
The greatest departure from tradition in the Clinton trial was the barring of live testimony and most witnesses in presenting evidence. The Johnson trial followed the tradition with 25 prosecution and 16 defense witnesses. In the Clinton trial, Democrats opposed having witnesses in the Senate trial. That was a surprise since the issue of witnesses came up during the House proceedings where I testified as a constitutional expert. While I favored calling witnesses in the House investigation, I noted that the Framers did not specify when, if ever, witnesses would be heard. But a Senate trial was viewed historically as an obvious forum for witnesses.
Two things prompted the House to not call many witnesses. First, the Clinton impeachment was the culmination of a long investigation by two independent counsels and a evidentiary record delivered by two vans to the House Judiciary Committee. With dozens of sources and statements, the House did not see the necessity of recalling all the same witnesses. Second, Democrats had accepted that Clinton committed felony perjury about an affair with a White House intern. They simply insisted that you could not impeach a president for that crime if the issue was personal.
THE DASCHLE MOTION
The Democrats outmaneuvered the Republicans and got an agreement not only to limit the witnesses to three but to bar public review of their depositions. They succeeded in barring any public testimony on the floor. After the depositions were finally completed, Senate Minority Leader Tom Daschle moved to bar those depositions from being played on the floor and move forward to closing arguments. All Democrats except Senator Russ Feingold had once again voted to skip ahead to closing arguments.
Some precedent is a bit more recent. Representative Adam Schiff and the other House impeachment managers are expected to demand fair play and equal treatment in the presentation of witnesses and evidence, the very due process denied in the House investigation. Democratic leaders repeatedly denied witnesses and minority hearing days for Republicans. They allowed only one witness who was not on staff for the entire House Judiciary Committee proceedings, and I was that witness in the hearing.
As a general rule, I am inclined to oppose the threshold dismissals and to favor witnesses in Senate trials. But the House has now undermined those principles by advancing a dubious obstruction article and an incomplete record. Schumer has expressed shock at the very notion of a Senate trial without testimony, asking why Republicans are “so afraid of witnesses” and portraying a trial without witnesses as a mockery. A full trial, however, will require Republicans not only to ignore the precedent set by Schumer and other Democrats in the Clinton case but also the incomplete record.
In the Trump case, the House has rejected calls to take a little more time to secure additional testimony or court orders against the administration. Even during the final impeachment vote, House Democrats referred to still developing facts involving the conduct of associates of Trump counsel Rudy Giuliani in Ukraine. If House Democrats had simply taken more time, they could have locked such testimony and evidence into the record and not have to rely on Senate Republicans to complete their case for them.
After rejecting basic rights to Republicans during the House Judiciary Committee and House Intelligence Committee hearings, Democrats are now demanding the witness and adversarial rights that they denied the minority. They hope that Senate Republicans will resist the temptation to offer a trial that is as cursory and as contrived as the House investigation.
Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as a witness expert in the House Judiciary Committee hearing during the impeachment inquiry of President Trump.