Courting Disaster? The Democrats Are Demanding Witnesses With One Notable Exception

Below is my column in the Washington Post (slightly expanded) on the upcoming fight over witnesses, including the unresolved question of Hunter Biden. The problem facing Democrats is that Hunter Biden is a clearly material witness to the defense on why there was a hold on military aid to Ukraine. The plain fact is that, from the perspective of the defense, the worst Hunter looks, the better the hold looks.

Here is the column:

The Democratic leaders may soon learn the wisdom of Oscar Wilde’s warning that “when the gods wish to punish us they answer our prayers.”

House Speaker Nancy Pelosi (D-Calif.) has so far delayed the submission of the impeachment of President Trump to the Senate to force a trial with witnesses. Senate Minority Leader Charles E. Schumer (D-N.Y.) has declared any trial of Trump without witnesses to be nothing less than the “most unfair impeachment trial in modern history.” Leaders of both parties know that impeachment often boils down to one unpredictable element: witnesses.

For those who have the votes, witnesses are an unnecessary risk. For those who don’t, they are an absolute necessity. On Friday, Schumer insisted that “there is only one precedent that matters here: that never, never in the history of our country, has there been an impeachment trial of the president where the Senate was denied the ability to hear from witnesses.”

Put another way, Schumer does not have the votes and thus needs the witnesses. Schumer now wants to hear from the witnesses who never testified before the House, which rushed through an impeachment without seeking to compel testimony from key officials. One of those, former national security adviser John Bolton, said Monday he would testify before the Senate if subpoenaed.

In the Clinton impeachment trial 21 years ago, Schumer and the Democrats opposed hearing from witnesses. In that impeachment chapter, the Democrats had the votes. Lacking the votes this time, the unpredictability of witnesses now appeals to Schumer and his party. But only up to a point. Schumer has opposed the suggested Republican witnesses as a mere “distraction.” One witness in particular could prove not just a distraction but a disaster: Hunter Biden.

In a conventional trial, Biden would be a relevant defense witness. Biden’s testimony would have bearing on a key question in an abuse-of-power trial. Trump insists that he raised the issue of Hunter Biden’s relationship with a Ukrainian energy firm to the Ukrainian president as part of an overall concern he had about ongoing corruption in that country. If that contract with the son of a former vice president could be shown to be a corrupt scheme to advance the interests of a foreign company or country, it might be Trump’s best defense.

Under Federal Rule of Evidence 401, courts will often review possible testimony under the standard of whether “it has a tendency to make a fact more or less probable than it would be without the evidence.”  Even before the adoption of the Bill of Rights, Congress enacted a statute reaffirming the right of the “defense to make any proof that he can produce by lawful witnesses” in cases of treason and capitol cases.  This right to present a defense has been repeatedly reaffirmed by the Supreme Court including in the 1967 opinion in Washington v. Texas, where the Court ruled that “the right to offer the testimony of witnesses and to compel their attendance, if necessary, is in plain terms the right to present the defense, the right to present the defendant’s version of the facts  . . . Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense.”

Trump’s position is that he did not arbitrarily ask a country to investigate a possible political rival. Had Trump called for an investigation into Sen. Elizabeth Warren’s (D-Mass.) husband, for example, without a scintilla of proof of corruption, it would be entirely indefensible. However, the Biden contract was so openly corrupt it would have made Jack Abramoff blush. Even in the United States, lobbyists and companies will often give family members undeserved lucrative jobs and contracts to curry favor with powerful politicians. Overseas, it is standard operating procedure. Oleksandr Onyshchenko, a businessman and former member of the Ukrainian parliament, said Biden was made a director “to protect (the company)” from investigation by U.S. and Ukrainian officials. Even Hunter Biden admitted that the position was given to him because of his father. Hunter Biden was paid at least $50,000 a month and possibly more.

Biden stepped down from the Burisma board only when his father announced his candidacy in April 2019. Ukraine assured Trump that it was cracking down on corruption when, just a few months earlier, Biden had been receiving monthly retainers from Burisma.

If the Biden contract was an ongoing corrupt effort to secure influence and money from the United States, Trump’s reference to it in a discussion of corruption has a possible public purpose. While one can certainly conclude that self-dealing by the president is a plausible explanation, there is no question that the testimony of Biden would be relevant.

Schumer knows that neither Biden nor his contract will show well under the glare of a public impeachment trial. In addition to his glaring lack of relevant experience, the younger Biden has a checkered history – from drug addiction to being thrown out of the Naval Reserve – that would have led most companies to avoid him. The trial might also force the public to consider Joe Biden’s failure to ask about his son’s dubious foreign dealings. Joe Biden himself seems delusional in claiming, “No one has said my son did anything wrong.”

For the Democrats, witnesses are a dangerous game. The worse that Hunter Biden looks, the better Trump looks in raising the contract. That is the problem with asking for witnesses in a Senate trial. They can take you to places you might prefer not to go.

Jonathan Turley is the chair of Public Interest Law at George Washington University and served as the last lead counsel in an impeachment trial before the Senate in defense of Judge G. Thomas Porteous Jr.

135 thoughts on “Courting Disaster? The Democrats Are Demanding Witnesses With One Notable Exception”

  1. The fly in the ointment here is that there is some evidence the Trump administration never actually sought a bona fide investigation into Hunter Biden’s dealings with Burisma, but merely the announcement of an investigation, the mere appearance thereof. If no actual investigation was sought, there can be no legitimate public purpose, and Biden’s testimony becomes once again irrelevant.

    1. The counter argument to that is that Ukraine has a long history of saying they’ll “look into things” and never do. A public announcement would help solidify commitment. Or, you think Trump was just taking out a political rival. Or, can’t it be both? Cant’ it be good for Trump *and* good for America *and* bad for Biden? You see, there’s lots of ways to look at this. Remember, at this point in 2016, Obama had already obtained illegal FISA warrants, inserted spies into the Trump campaign, and set up honeytraps using foreign agents from the UK, Italy, Australia, and New Zealand. The Left has set the precedent. Biden should get nothing less than the full Trump treatment. Anything less would be hypocritical and unfair.

      And even if you don’t buy any of that, at the end of the day, the essential question is whether Biden is corrupt, in regards to Ukraine. The answer to that question determines how we all feel about all the other questions. If Biden is clean, then it looks like Trumps was conducting a political hit… if Biden is dirty, then Trump’s just doing his job.

      Plus, the answer to that question determines if he is fit to even *run* never mind take office. I’d love to hear someone ask him about that gloating speech in front of CFR, about how he got the prosecutor fired. Isn’t it funny no one has asked him?

      Unfortunately for the Left, pursuing this impeachment fantasy to its full measure will open up some serious *reality* when it comes to the Bidens. That dam will not hold forever.

      Biden’s son in Ukraine will *always* be relevant.

  2. Hunter Biden Will Testify, Rand Paul is Making Sure of It

    With the impeachment inquiry focusing on the quid pro quo of what Trump may or may not have said on a call with Ukraine, it all stems from what Joe Biden did years ago while serving in the role of Vice President to protect his son, Hunter.

    Senator Rand Paul has said that he will force a vote on the Senate floor if necessary. This would bring Hunter Biden and, potentially, other impeachment witnesses favored by the White House to the impeachment trial.

    Paul has said that he’s talking about forcing votes on motions within the Trump impeachment trial that would allow Trump to bring some of his own witnesses. The Trump ally and Kentucky Senator has been urging Congress to call Hunter Biden as a witness since he was working at a Ukrainian energy company that was being investigated.

    There’s a good reason why Hunter Biden should make it to the stand. The House impeachment inquiry is investigating whether Pres. Trump abused his power by pressuring Ukraine in order to investigate Joe Biden as well as his son Hunter in exchange for military aid. Hunter Biden’s company was being investigated, which meant that Hunter would be investigated as well since he sat on the board. As the tale goes, Joe Biden threatened to withhold billions of dollars of aid from Ukraine unless the prosecutor running the investigation was fired on the spot.

    There have been plenty of times where Joe Biden admitted to playing hardball with Ukraine to make it happen. This means that Trump was looking to protect the integrity of the United States. The fact that Biden is a political rival is a simple inconvenience. Before he was a political rival, he was the Vice President of the United States.

    Bringing Hunter Biden in for questioning is a must. Why was his company being investigated? Why was there a need for the investigation to go away rather than simply seeing it through? Had Hunter Biden not needed the investigation to end, there would have been no need for his father to interfere, which meant that Trump wouldn’t have had to look into the investigation further. With Hunter Biden being such a key witness to all that the impeachment inquiry is about, it’s absolutely necessary for him to sit down and testify. And his father, Joe Biden, needs to be part of the witness list as well. The House Dems are just trying to protect him for fear of what may come out.

    CNN

  3. You ignore what Amb Volker pointed out: the Justice Dept has never put through an official request to launch an investigation into Hunter Biden. It refuses to do so. How could Biden be a relevant witness if even the corrupt Justice Dept. had no concerns about any Biden wrongdoing? How then could what Biden allegedly did, therefore, be any justification for withholding military aid and a White House visit for Zelensky? IRRELEVANT!

    You are using Republican talking point without fully researching the facts. #sad see bottom of p. 9 – p. 10. It COMPLETELY rules out any relevance of Hunter Biden to Trump impeachment trial. Sorry, you get an F on this paper.

    Ambassador Volker discovered that the Department of Justice had not officially asked Ukraine to launch the investigations being promoted by Mr. Giuliani. (Page 196-197, 45)

    Q: Did you speak with anyone at DOJ about whether the U.S. had requested an official investigation?
    A: No, I did not. I did ask—I did ask our Chargé to also check. And I later understood that we never had. And because of that was another factor in my advising the Ukrainians then don’t put it in now.
    Q: You told the Ukrainians don’t put in the specific investigation?
    A: Yes, yes.
    Q: Did you speak with the Ukrainians about whether or not the U.S. had ever
    requested an official investigation?
    A: It came up in this conversation with Andriy about the statement, and he asked
    whether we ever had. I didn’t know the answer. That’s why I wanted to go back and find out. As I found out the answer that we had not, I said, well, let’s just not go there.
    Q: So Mr. Yermak wanted to know whether the U.S. DOJ—
    A: Yes.
    Q: —had ever made an official request?
    A: Yes. He said, I think quite appropriately, that if they are responding to an official
    request, that’s one thing. If there’s no official request, that’s different. And I agree with that.

    And my comment back to him was I think those are good reasons. And in addition, I just think it’s important that you avoid anything that would look like it would play into our domestic politics, and this could. So just don’t do it. I agree with—so I told Andrey, I agree with you, don’t do it.

    https://intelligence.house.gov/uploadedfiles/20191105_-_volker_transcript_excerpts_final.pdf

    1. Interesting. Volker is a GOP player who was serving as Trump’s special envoy to the Ukraine, so no “Deep State” operator.

    2. I’m no legal expert; but you are saying that just because the”corrupt” Justice Dept put no official request for Ukraine to investigate Biden, his testimomy would be irrelevent. Wouldn’t that.make the impeachment case against Trump altogether, irrelevant as well?

  4. Sorry. Calling Hunter Biden would open the door to asking why, exactly, he was being called. Hence, Trump kids with their various ventures into government/ private business partnership being called in response. To Trump, a welcome diversion, certainly. To the trial, pure chaos..

  5. Jonathan: The campaign to discredit Hunter Biden is picking up steam. You have made a modest contribution to this effort. Now it appears the Russians are trying to do the same. Area 1 Security, a US cyber security company, has issued a report indicating what the Russian may up to. Area 1 says Russian military agents have hacked Burisma Holdings, where Hunter Biden previously served on the board, stealing log-in credentials of Burisma employees. Why would the Russians want to do this? Although Area 1 has no direct proof they suggest the Russian hackers could be seeking damaging material on want to plant disinformation in order to discredit Biden. Farfetched? What we do know is the Russian state apparatus did try to influence the 2016 election in support of Trump.by hacking e-mails at the Democratic National Committee in order to discredit Hilary Clinton’s campaign. This was made clear in Robert Mueller’s extensive investigation. Trump welcomed Russian interference in 2016 and no doubt would welcome Russian efforts this year. He has an almost irrational fear he could lose to Joe Biden. So from your side you are doing your best to discredit the Bidens and the Russians are probably hard at work from their side. Seems you have jumped in bed with some very bad actors

  6. We see the Democrat Senators who will be tied up in this now at a disadvantage in the Iowa caucuses. Favorable condition for Biden and Pete Butt.

    Now, i had thought Pelosi had thrown Biden under the bus, however, now i wonder

    1. If they don’t recuse themselves from the Senate trial, they are actually doing what they are accusing Trump of doing. Lawlessness will be addressed very soon I believe.

  7. I’m sure the Dems would let Hunter testify if they could get a least ONE witness from the list of what 12? That Trump is blocking. While you are at it, why not trump’s daughter and son-in-law. Rudy’s son who works in the WH, Barr’s son who works there too, Barr’s daughter who works at Treasury, His sons who do business with foreign country’s, at Trump’s Washington DC hotel. Trump’s daughter who get Chinese patents at will, and Jared who gets grants and loans from the Saudi’s. But sure lets and talk about Hunter Biden.

    1. Hunter Biden could have been called by the Democrats to prove that no such criminal behaviour occurred but they would have to explain the exceptionally large checks and monies received by a person thrown out of the Navy and apparently addicted to cocaine. Smaller amounts of money might have passed the laugh test by those most agreeable to Hunter but not such large amounts.

      At least most if not all of the others you mention actually work and have talent that would garner a spot on the board with payment, but despite their superior abililty and know-how none of them would be paid such a high amount and most probably would stay away from such money. Kerry’s son stayed away from the Ukraine deal supposedly because he thought it not appropriate.

    2. What subjective sillyness.Joe Biden was so arrogant he was recorded admitting publically extorting the Ukraine government to fire the prosecutor investigating the company his son got a job at because Joe Biden was in charge as he also demonstrated.
      If Hunter happened to be in the area or had a job at an unrelated company it would be enough to look at. This was on an entirely higher level of up front evidence. Narratives to cover aside.
      It’s amazing the loop you have twisted your thinking into so you can think an apple is an orange.

    3. The House called all the witnesses they needed to to impeach Trump. Those are the only ones that should be called in the Senate who BASE their findings upon the House’s deliberations.
      Its their fault if they rushed their proceedings for POLITICAL purposes, now they can be judged upon their findings.

    4. Did I miss the actual evidence that Hunter Biden did anything illegal?

      Or is the whole idea to paint Joe to the public as vaguely corrupt from Hunter’s having traded on his name, a situation the majority of Senators hearing the case also find themselves in? And, as FishWings mentions, corruption Trump has far exceeded with his own children and their spouses.

      Call Hunter. Then stand back as the floodgates open for all these other children to be called by the Dems for worse behavior with actual evidence. Of course, their testimony will be voted down by the Republican majority, but the sheer number of calls will make the point.

      1. “Did I miss the actual evidence that Hunter Biden did anything illegal?”

        Yes. The circumstantial evidence is high enough for an investigation.

        Trump earned his money in the private sector not from government largess or if you prefer the taxpayer. His finances have been looked at by the IRS, the gaming comissions of various states along with various municipalities and states. No criminal action was found. Do you have actual evidence that something criminal was missed?

        1. Review the totality of the entity, Hunter Biden, then consider the “preponderance” of evidence- political, moral and legal.

          Is it typical for “Boards” to be comprised of cokeheads?

          1. I think that the potential bribes to the Biden’s exceeds all others that I can presently think of except for Hillary and Bill Clinton who were a bit smarter and used charitable donations and speaking fees. I don’t think Hunter could speak knowledgeably about anything but he could write the book Finding a Cocaine Dealer for Dummies.

      2. If it looks like a duck, walks like a duck, smells like a duck and quacks…you get the picture, that’s why it seems appropriate to have him testify. Just like the IRS scandel in 2013, when Obama announced a,week after the news broke”nothin to see here” and the media went silent-no investigation. Amazing!

    5. yea if Trump Jr. was hired by a corrupt Ukranian gas company and Trump Sr. was on video bragging about having a prosecutor fired that was going to look into his son’s company, i have a feeling that people would want to look into that situation…

      Anyway, the main difference here is that the Trumps made their money in the private sector. The Bidens made a boatload of money by being in government for 40 plus years.

    6. True- Trump’s family hasn’t stopped being who they were before he became POTUS; family members; sons, daughters, mothers, fathers, business people, etc. Hunter Biden, however, after being kicked out of the military, busted on drug possession, etc., becomes a highly paid board member for a company in an industry for which he has no experience. Just so happens his dad was Vopus. Go figure!

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