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.

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

  1. Bidens. Joe and trophy hunter. The Dems gotta cut Joey loose. The Dems need to nominate the new Yorkie. Not Talkin bout a dog here. All the way with Bernie.

  2. The “whistleblower, Adam Schiff for brains should be FIRST, followed by the ENTIRE STAFF of Schiff for brains, and then the “whistleblower”, CIAramella! I’m sure ONE of them will tell the TRUTH to avoid prison time for their LIES!

  3. Jonathan: You must be kidding. I’m not a fan of family members taking advantage of their father’s prominent political profile to get a lucrative job on the boards of corporations. It’s sleazy but corporations think they can curry favor with politicians by engaging in this nefarious activity. That said, you say Hunter Biden would be a “relevant defense witness” in the upcoming impeachment trial. You suggest he tried to use his presence on the Burisma board to further some “corrupt scheme”. Then you take the low road and say “the younger Biden has a checkered history- from drug addiction to being thrown out of the Naval Reserve”. Character assassination is not what I would expect from an academic. So where is your evidence that Hunter Biden would be a relevant witness? Rudy Giuliani spent a lot of time and money trying to dig up dirt on the Bidens but came up empty handed. Despite a lot of scrutiny no law enforcement agency, either US or foreign, has found that Hunter Biden engaged in any wrongdoing while on the Burisma board. Calling Biden to testify would be a convenient diversion but also a dangerous gambit. If McConnell were to do this, without calling for testimony from the really relevant witnesses, it would show he never intended to conduct a fair trial. It’s probably all moot because Trump says he won’t let any administration official testify. John Bolton, a key witness, says he is willing to testify but Trump will prevent that by asserting “executive privilege”. So the coverup continues. Trump was so terrified about running against Joe Biden he was willing to blackmail Ukraine. He wasn’t interested in actual “corruption” in Ukraine but in digging up political dirt on his likely opponent. Then Trump assassinates Iranian general Soleimani, not because of any “imminent” threat, but to ensure no Republican war hawk Senator gets second thoughts. Trump needs almost all Republicans votes. Could it get any worse? By suggesting Hunter Biden should be called to testify you are abetting the coverup.
    .

    1. Dennis McIntyre:

      What was Burisma buying when it hired Hunter Biden at $83,000 a month? Not his experience. He had none. Not only that, he was discharged from the Navy within a month of gaining his commission for cocaine use.

      Why was Hunter Biden worth $83,000 to a company engaged in energy exploration and development in Ukraine? Joe Biden said, on camera, that he, not Obama, set Ukrainian policy.

      Trump is getting impeached over a misrepresentation of a normal phone call. Yet, look at the extreme lengths Democrats have gone to in order to protect Biden from inquiry.

      “Then Trump assassinates Iranian general Soleimani, not because of any “imminent” threat, but to ensure no Republican war hawk Senator gets second thoughts.” That’s a hell of an accusation. Prove that there was no intelligence on an imminent threat. You throw around accusations recklessly. Meanwhile, all we’re asking for is an investigation into Joe Biden’s Ukrainian activity.

      1. Karen, whatever Burisma hired Hunter for – very likely “window dressing” – is irrelevant to the charges against Trump. By the way, you are apparently ignorant of the charges and evidence against Trump, of which the phone call where he “asks” Zelensky to investigate the Biden’s is only part of his administrations efforts. If you think those efforts were all a misunderstanding involving multiple parties then surely the 1st person witnesses in the WH should be able to clear it all up by testifying under oath in the Senate. Let’s hear them, ok?

        1. is irrelevant to the charges against Trump.

          Exactly relevant given Biden’s QPQ and the alleged Burisma corruption. Should have heard them in the House, ok?

          1. At least 3 of the witnesses before the House – one of them a long time GOP official and the others career State Dept – testified that Joe’s work in the Ukraine was SD policy and above reproach.

        2. Karen, whatever Burisma hired Hunter for – very likely “window dressing”

          Pretty expensive drapery.

        3. bythebook — You must be kidding? The informer, whose name we know, never even heard the phone conversation. Trump released the phone conversation. There is no quid pro quo. Why are you afraid of hearing the truth about Biden. I’m a registered Democrat, and the Dems need to clean their house of all the malfeasance and criminal characters. And that includes Biden, Clinton, Wasserman-Schultz. I don’t want to belong to a completely corrupt party that would put their interests ahead of Americas. The Dems are now operating like an organized crime syndicate.

          1. Neevah, the WB’s charges have been confirmed by multiple witnesses to the call and the transcript. Trump asks for help from a foreign leader in his re-election – an impeachable offense without a QPQ – and the QPQ is implied in the call and later made explicit by administration officials and Guliani.

            A 2 year open ended investigation of Hillary has just ended without finding any violations or crimes. There are no charges or evidence against Joe or Debbie.

            If you’re really a Democrat why are full of untrue GOP talking points?

            1. “Trump asks for help from a foreign leader in his re-election – an impeachable offense without a QPQ – and the QPQ is implied in the call and later made explicit by administration officials and Guliani.”
              Bahahahaha … and you have the nerve to question Neevah’s true facts, while you Shill for the far Left? Truly Orwellian!

  4. Hunter should be placed in front of the US Senate and let the Democrats do to him what the Iranian peace loving Mullahs did to Iranian protestors since everyone knows Democrats are Terrorists who hate America

    1. Damn straight

      Democrats have been silent on the shooting of protestors by the Iranian mullahs

      Democrats are terrorists

  5. Holmes is correct. Hunter is irrelevant to the charges. He could admit he shot JFK and it would make no difference to the appropriateness of a US President using his power against a foreign govfoment to seek domestic political advantage. That’s why we have a DOJ and FBI. JT knows this and his previous concern that witnesses be heard now disappearing with the GOP in charge tells us all we need to know about his motives,

    1. btb:
      “Holmes is correct. Hunter is irrelevant to the charges.”

      ********************
      Sure like Jack Ruby was irrelevant to the Kennedy assassination investigation. Well he didn’t shoot JFK did he? Try a little intellectual curiosity or just common sense. I suppose Soros has outlawed those Western values though.

  6. I assume that Hunter would be able to refuse to testify based on the Fifth Amendment right not to be required to incriminate oneself. But that wouldn’t look so good for Joe either.

    But I disagree with Prof Turley that Hunter is a relevant witness. This is because it appears that neither Trump, any other Republican or the DOJ had – or has – any evidence of wrongdoing by Hunter. Therefore, it is clear that Trump’s demand that Ukraine investigate Hunter was simply a fishing expedition – and thus not a viable defense to Trump’s extortion of Zelensky (withholding approved military unless Zelensky did what Trump wanted him to do. .

    1. That. Is correct as far as it goes RD, but even if there were evidence, it is not the President’s job to pressure anyone to investigate another citizen especially his main political rival and especially a foreign government. It is especially laughable since Trump has shown zero interest in supposed corruption of anyone other than Hillary and Joe.

      By the way, Hillary – unlike Trump – was just exonerated by the Utah Fed prosecutor investigating her of all charges.

      1. What does Soros pay terrorist loving trolls like you, Anon?

        asking for wounded Iranians shot by Iranian Mullahs yesterday

      2. bythebook – Hillary destroyed evidence with BleachBit, and physically smashed devices with hammers while under subpoena.

        Nothing you say will ever change that.

        1. Karen, Huber has been on this since 2017 and had carte blanche to pursue whatever he wanted – including the Uranium One nonsense you’ve promoted here ad infinitum. It’s a dry well. Give it up.

          1. Why is it a dry well? could it be because ALL the evidence has been destroyed? Nothing will every change the fact Hillary had something to hide.

  7. Did anyone else notice that Hunter and Justin Trudeau have the same stubble-beard thing?

    According to Christina Cauterucci, one of the hard-hitting journalists over at Slate: “In short, it’s the beard of a self-aware, conscientious, battle-tested public official.”

    ***************************************
    Look there he goes
    Isn’t he dreamy?
    Oh he’s so cute
    Be still my heart
    I’m hardly breathing
    He’s such a tall, dark, strong and handsome brute

    Progressive icons
    They know the Obamas
    Runs the whole country, look past the blackface
    Plus $600 grand from the gang in Ukraine
    Justin and Hunter
    Look there they go
    Aren’t they dreamy?

    – Adapted from Beauty and the Beast (1995)

  8. Because the majority of American voters are not as batshiiite crazy as you and your communist allies.

  9. Turley says: “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.”

    IF the contract was for this purpose? Have you any proof? What is the proof, and where is it? How, exactly, was Hunter Biden going to obtain influence and money from the U.S.? His father is no longer in office. And why did it take 3 years for Trump to become interested in rooting out corruption only after polls showed Biden beating him? This is just a smear tactic, and a pathetic one at that. Oh, and did you Trumpsters hear that the investigation into Hillary Clinton revealed no crimes?

    Are you aware of how this claim strains credibility, especially in juxtaposition to Trump blatantly violating US law by soliciting assistance from the Ukrainian President? Mere solicitation of election help from a foreign government is enough, and the memo of the call proves this. We’d like to see the actual transcript, which is hidden away in the secure server. Why do you suppose Trump ordered it to be secreted away, along with transcripts of calls with other world leaders? More diversionary tactics, like ordering the assassination of Soleimani, and then lying about there being an IMMINENT threat. Well, the American people see through Trump. Why won’t he just go away?

    1. Apparently you and Turley have been asleep under the same rock. Pres. Trump has been harping on Ukraine involvement and the Burisma connection since day one of his Presidency. So yes, it is of public interest to know exactly what was the relationship between Hunter and Ukraine and the corrupt Burisma corporation, as the monies filtered through that company were American tax payer dollars (also known as money laundering), when you have several high level former prosecutors stating the exact same thing under OATH to that fact. You better believe they are material fact witnesses. So is the pencil neck f**ker Schitt, and the ICIG Aithkinson all of them plotted this debacle now in the hands of the Senate (or soon to be). And for the record dopehead, the witness list is for the benefit of a defendent, not the prosecution, as a matter of record, the prosecution had there shot at the apple while denying the President any form of due process, so it is his turn to call in witnesses.

      1. Natasha, JT’s promotion of an irrelevant political stunt intended for TV, but of no relevance to charges he admits are serious is an embarrassment for him and demonstrates his complete lack of seriousness about the impeachment.

    2. Did you miss this part? “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.”

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