Below is my column in the Washington Post on the best course for the House managers in securing witnesses. The column was posted before the Bolton leak, which may now secure the needed four votes of swing Republican senators. However, Article II is as dead as Dillinger. Indeed it was dead on arrival. The two days of White House argument wiped out what little support existed for the charge given the decision to rush this impeachment and then impeach a president for raising executive privileges and immunities. The strongest material of the White House was directed at this exceedingly weak and unwarranted article of impeachment. Democratic senators speak a great deal of the need for bipartisanship . . . for Republicans. It is time for those same senators to show that they are equally expected and capable of putting aside party for principle. It is time for Democratic senators to join in the call to reject Article II.
Here is the column:
Famed economist John Kenneth Galbraith once described politics as “the art of choosing between the disastrous and the unpalatable.” Those words could not more aptly describe the choice now facing the House managers who lost this case before it began. Not because of the Republican majority but because of its own historic blunder in rushing the impeachment forward on an incomplete record. It now must make a choice between the disastrous in simply staying the course to certain acquittal or the unpalatable in admitting the blunder and offering a compromise.
Thus far, the suggestions of a compromise has centered on an unlikely horse trade of a witness like former National Security Adviser John Bolton for Hunter Biden. However, such a compromise does not address the separate institutional concern of some senators, which likely includes the four swing senators. For them, the threshold issue is not the inclusion of witnesses in the Senate but their omission by the House.
This week, a key Republican senator, Lisa Murkowski (R., Alaska), indicated that she was not inclined to call witnesses that the House failed to pursue in its rushed vote.
The decision is now with the House managers. They can either just grab the face time on national television or they can move to deal with its blunder and try to resuscitate this case. It might be able to do so but it will have to offer more than a witness swap.
A better compromise might be found in the two articles themselves. To put it simply, it may be time to dismiss Article 2. The obstruction of Congress article was dead on arrival but its dismissal could allow the Senate to go on the record in opposition to the House handling of this impeachment. It just might be enough to open a path for witnesses on Article 1 and abuse of power.
The House destroyed any chance for an obstruction article when made an impeachment by Christmas its overriding priority despite warnings that it would effectively hand over an incomplete case to not just the other house but the opposing party.
The short period set by the house did not allow time for a challenge to the House demand and effectively made the seeking of judicial review a “high crime and misdemeanor.” When Congress demands documents or, presidents often have objections based on the inherent immunities or privileges of their office. Both Richard Nixon and Bill Clinton were able to not only seek judicial review but take their appeals all the way to the Supreme Court before facing impeachment. Nixon soon resigned after losing that case.
There are valid presidential claims of privilege to be raised by President Trump in calling his former White House Counsel or National Security Adviser to discuss direct communications with him in the Oval Office.
If the House had simply gone to court to enforce a subpoena, it would have forced a review of such privilege questions. Even before the impeachment vote, Bolton indicated his interest in testifying but it would require a subpoena. The House however refused to issue such a subpoena or take other reasonable steps to secure evidence. Magnifying this mistake was the decision of the House to withdraw the subpoena issued for Charles Kupperman, a deputy to Bolton. Like Bolton, Kupperman indicated that he might testify but went to court for review of the subpoena. Before the House could rule, the House mysteriously pulled the subpoena. Judge Richard Leon seemed nonplussed in dismissing the case, stating dryly “the House clearly has no intention of pursuing” the witness.
It is time of the Democrats to acknowledge the blunder in the rushed vote. Call it a constitutional penalty. In hockey, you lose a player in a powerplay. In football, you lose downs or yards or possession.
The Senate could similarly cry foul and dismiss Article 2 while moving forward on Article 1 with limited witnesses. While there are valid arguments for leaving the House with the incomplete record that it handed over to the Senate, any House failure does not relieve the Senate of its own obligations. The Senate could allow a limited number of witnesses while stipulating a fixed schedule for testimony, including any litigation over privilege arguments that should have been addressed in the House investigation.
The House managers must now decide if they are trying to score political points or win a case. If it is the latter, they need to honestly and decisively deal with their own failure. Neither side will be delighted with such a compromise, but it would allow the Senate to protect its institutional interests while allowing the House to prove the primary allegations in the case.
In other words, it may be time to pick the unpalatable over the disastrous for both Houses. It is time to shoot Article 2 and allow witnesses.
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 Thomas Porteous. He also testified with other constitutional experts in both the Clinton and Trump impeachment hearings. He also serves as legal analyst for both CBS and BBC.