Below is my column in The Hill newspaper on the recent decision on the appearance of a key witness, Charles Kupperman, in the House investigation. The abandonment of the subpoena on Kupperman highlights what will be a major question in the Senate of why the Senate should demand witnesses who the House failed to seek to compel. By rushing the impeachment and forcing a vote before Christmas, the House gave up control over an incomplete and insufficient case for removal. It gave up that control to a chamber controlled by the opposing party. Speaker Nancy Pelosi’s attempt to game the system has not achieved any concession from Senate Majority Leader Mitch McConnell. Few of us believed it would. Now the House will proceed on the thinnest record ever presented in a modern presidential impeachment trial.
Here is the column:
As the House and Senate continue their bitter struggle over the coming impeachment trial of President Trump, a judge in the District of Columbia issued an opinion that was largely lost in the crush of New Years stories. The opinion could loom large in the Senate trial, however, and one line in particular, which states “the House clearly has no intention of pursuing” the witness, may be repeated like a mantra by the Trump defense team.
The witness was Charles Kupperman, a deputy to former national security adviser John Bolton. Other than Bolton himself, Kupperman is one of the officials most likely to have direct knowledge of an alleged quid pro quo on aid to Ukraine. After subpoenaing him last fall, the House withdrew its request before the court could rule on compelling his testimony for the record. The House also decided not to subpoena Bolton or any other key witnesses in the administration. Judge Richard Leon dismissed the case before New Years Eve with a hint of frustration, if not bewilderment, that the House did not seem interested in hearing from a possible eyewitness. Historically, that lack of attention in not only witnesses but also a triable case will remain one of the most baffling blunders of this impeachment.
When I testified in the House Judiciary Committee impeachment hearing, I cited this case in my criticism of the pledge by Democrats to impeach Trump by Christmas despite a very incomplete record. While I opposed some of the proposed articles of impeachment that were subsequently dropped by the panel, I said Trump could be legitimately impeached on abuse of power and obstruction of justice if the House could establish such violations. But the House refused to wait just a couple months to build a much stronger case to remove Trump. In the mad rush to push impeachment, Democrats could not have made it easier for his team.
Securing an impeachment so fast does not earn you a historic prize. It simply earns you a historic failure. By not seeking to compel numerous key witnesses, the House now relies on the Senate to complete its case. Since the House has maintained that the record overwhelmingly proves that Trump is guilty, the Senate could simply try the case on the record supplied by the House. Indeed, in the 1999 impeachment of President Clinton, Senate Democrats, including Minority Leader Charles Schumer, fought against any witnesses and sought a summary vote without a trial.
I was particularly concerned about moving forward by Christmas on the second article of alleged obstruction of Congress. The House elected to push through impeachment with an abbreviated period of roughly three months and declared any delay by Trump, even to seek judicial reviews, to be a high crime and misdemeanor. The administration is currently in court challenging demands for witnesses and documents. Just a couple weeks ago, the Supreme Court accepted one such case for review then stayed the lower court decisions ordering the production of the tax and finance records of Trump. The House impeached Trump before that court or other federal courts could rule on the merits of claims of presidential privileges and immunities. Both Bill Clinton and Richard Nixon had been able to take such challenges to the Supreme Court before they faced impeachment.
The House refused to seek to compel several witnesses in court, burning months in which it could have secured not just decisions in its favor but also testimony. Indeed, a year ago, I testified before the House Judiciary Committee and encouraged it not only to hold a vote on impeachment but to go to court to force testimony of figures like former White House counsel Donald McGahn. While refusing to use its impeachment powers with such a vote, it did take him to court. It won that case shortly before its impeachment vote. The case will be heard by the appellate court this week, even without being expedited for the impeachment investigation.
When faced with the embarrassing timing of that ruling after the hurried impeachment vote, House Intelligence Committee Chairman Adam Schiff insisted there was no time to waste in getting the case to the Senate and that “it has taken us eight months to get a lower court ruling” to compel McGahn to testify. But after members claimed there was a “crime spree in progress” and no time to waste, House Speaker Nancy Pelosi blocked any submission to the Senate to demand witnesses that the House unwisely omitted in its investigation. So it seems time is no longer of the essence.
Schiff also was wrong on McGahn. The House waited until August to go to court to compel him to appear. That was roughly four months to secure a ruling and without proceedings under an impeachment inquiry ordered by the House, which historically places cases on a fast track to the Supreme Court. In the Nixon case, it took three months from the ruling of the trial court to the final decision by the Supreme Court that ultimately led to his resignation. Even if the House had waited until October to seek to compel witnesses, it could have had ample time to secure rulings or testimony by a springtime impeachment. We will never know because Democrats chose to do nothing due to the need to get to a trial that they have now delayed.
Schiff is not the only Democrat undermining the case for the obstruction article. Representative Eric Swalwell, who seeks to be a House manager at the Senate trial, recently declared that not only should a sitting president be impeached if he goes to the courts rather than submit to Congress, but that contesting demands for evidence is actually evidence of guilt on all of the charged offenses. In a complete denial of the critical concepts of the rule of law and due process, Swalwell claimed “we can only conclude that you are guilty” if someone refuses to give testimony or documents.
It is unclear if his concept of due process would be extended to President Obama, who refused both critical witnesses and documents to Congress on the basis of claims that were eventually dismissed by federal courts as untenable. Likewise, former Vice President Joe Biden has made headlines by declaring that, if subpoenaed, he would defy the Senate. But someone must have explained to Biden that the man he seeks to replace was just impeached for defying the House, even without a subpoena, because he clarified his earlier remarks by stating the opposite in a later interview.
None of this bodes well for the Senate trial. Developments are unfolding from a former aide to Rudy Giuliani, who seeks to give new evidence that is relevant to impeachment. Giuliani himself was never subpoenaed and recently said he would be willing to testify. It is like pushing for a murder trial before an autopsy is completed because everyone has holiday plans. There are also new documents showing that Trump may have moved to freeze the military aid after speaking with the Ukrainian president. Those documents were produced after a trial court ordered their release under the Freedom of Information Act, and the administration did not appeal.
However, none of that is part of the impeachment record because it was more important to vote on it before Christmas than to build a full record before a trial. The nation will likely witness the collapse of a Senate trial on an incomplete record, as the witnesses and documents are still coming forward. Those Democratic voters who supported this premature act will be left to wonder, as did Doctor Seuss, “How did it get so late so soon?”
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.