Ruling On The Record: The Senate’s Looming Prudential Questions Could Weigh Heavily With Members On Witnesses and Conviction

Below is my (expanded) column in the Hill on the prudential (as opposed to the constitutional) concerns raised by the second Trump impeachment trial. Senators will have to resolve these questions before reaching the merits.  The prudential concerns may also weigh heavily in the possible rejection of witnesses after the snap impeachment. The House blundered by leaving the record and witnesses entirely to the Senate to develop. The Senate could now chose to rule on the record — or lack thereof.  Even a couple days of hearings could have created a record of documents and witness accounts — and an opportunity for a formal response from the President. It could also have allowed for suggested changes on the language of the article to allow for broader support. I have no objection to removing a president on his final day, but the House should create a minimally sufficient record to support a constitutional determination of a high crime and misdemeanor.

Here is the column:

The second impeachment trial of Donald Trump appeared to effectively end before it even began Tuesday. In a threshold procedural vote on the constitutionality of trying a former president, 45 senators voted in favor of a motion to challenge the trial, and that means almost half of the Senate believes Trump might not be subject to a trial, let alone a conviction, as a former president. It also means House impeachment managers may not be able to secure the Senate votes to convict.

For those members who believe the trial is invalid, the votes would not change based on the merits. In the 1999 impeachment of Bill Clinton, some Senate Democrats argued against a trial due to a lack of votes to convict him. They argued for simple votes without a trial on prudential grounds. But this time the larger prudential issue looms over the upper chamber. With acquittal now likely, members of the Senate may focus on the costs of a “snap impeachment” for the institution.

Before they took the oath for the impeachment trial and voted on the dismissal motion raised by Rand Paul, I met with all Senate Republicans to discuss the historical and constitutional issues. I did the same before the first impeachment trial of Trump. It was an intense and, in many ways, an inspiring discussion. Senators honestly struggled on whether they could vote to “remove” a president who is no longer in office.

The vote on the dismissal motion is not likely to end the debate over the constitutionality of a trial, which has strong arguments on both sides. There are only two cases where a retroactive removal was attempted. In 1789, resigned Senator William Blount refused to appear for what he saw as an unconstitutional trial. The Senate agreed and dismissed the case. A closer parallel involved former Secretary of War William Belknap in 1876. The same threshold vote was taken with the same result as almost half of the Senate voted to dismiss the trial as unconstitutional. The motion failed narrowly and the Senate had the trial then acquitted him.

But now the Senate is faced with the second prudential issue. There are cases which, even if legally brought, contain errors so significant they must be dismissed as unsound on prudential rather than constitutional grounds. This case raises such a fundamental error. The problem is not what was sent to the Senate but what was not. There was no record. For the first time in history, the House of Representatives sent an article of impeachment to the Senate without any hearing, any testimony, any response from the president. Not a word. It just sent a poorly crafted article of impeachment like a conclusion in search of proof.

Witnesses may be essential to establish intent by President Trump, which could be based on his actions before or after the riot. However, there are a myriad of sources for circumstantial or direct evidence. Like many, I have called for an investigation including inquiries on when National Guard troops were offered to Congress and whether Trump in any way delayed or obstructed the use of National Guard troops. That might not have been possible in a couple days. However, there was information available from the congressional side on whether troops were first offered, when they were requested, and any communications with the White House. If Trump refused to give authority for deployment, it would be strong circumstantial evidence of intent.

I am actually surprised that the House did not simply hold hearings after the vote. Weeks have gone by during which the House could be creating an evidentiary records either referenced at trial or made available to senators. Why not? Instead, the House is demanding witnesses at trial but could be creating a post-impeachment record. It is not ideal but it is better than waiting for a trial with limited or no witnesses.

Modern impeachment have uniformly had a record in the form of witness testimony or some other source of evidence.  Early impeachments were handled in a very different Congress where evidentiary hearings were not common as they are today. Indeed, the modern committee system did not exist. The Framers left it to the House to establish the basis for an impeachment. The expectation was that the vote of high crimes and misdemeanors would not be a simple conclusory vote but supported in some form to meet the constitutional standard. Witness testimony was not necessarily the expectation. That is why the House is often analogized to a grand jury which is different from a trial in its rules and operation.  While the Constitution only requires the articles of impeachment, all impeachments had some record of some kind to serve as the foundation for a presidential impeachment.  However, such testimony has been the norm either in House hearings or the incorporation of witness testimony as with the Clinton impeachment.

Moreover, I am not aware of any impeachment where the accused, particularly a president, was not given a formal opportunity for a response. Finally, there was the establishment of certain critical facts. Even with the William Blount case, the position was clear given the move to expel Blount before his trial in the Senate.  Thus, while the records differed in major ways (particularly with regard to modern witness testimony), there was a record.  The House shouldered the burden (much like a grand jury) in establishing the foundation for an impeachment while the Senate would then take that record and hold a trial. The expectation was that the Senate could hold witness testimony (which is why I have supported witnesses in presidential and judicial impeachments).

The issue is whether the Senate wants to legitimize this radical departure from the traditions of both chambers. Some of us called for the House to hold at least a day of hearings to allow the chance for the president to respond. Yet the House refused to call any witness or hold any hearing on the article of impeachment. House leaders said there was not a day to spare then did nothing. They waited almost two weeks to submit the article to the Senate. It also did not make formal demands from the Administration for responses or create a record of any kind from evidence in control of Congress.

It is a familiar pattern. When I testified in the first impeachment hearing on Trump, I objected that the House was moving in the shortest time and on the thinnest record with any impeachment of a president. I testified that Trump could be impeached on two articles, the two ultimately adopted by the House, but cautioned that such a rush was unnecessary and would fail in the Senate. The House Judiciary Committee did not call a sole witness, which led the Senate to decline to call any witness. House Speaker Nancy Pelosi and Adam Schiff back then also insisted there was no time to waste then waited weeks to submit the articles to the Senate.

After the House destroyed its own rationale for its rushed impeachment, I wrote about a dangerous prudential concern for the Senate in accepting such an insufficient record for the trial. While the Constitution does not specify a record, this was a shocking departure from tradition. I suggested a Senate compromise to dismiss the article of obstruction of Congress to show the House it should never repeat such an abbreviated process but to give the House the trial witnesses it should have called. Otherwise, the House would use that case as a baseline for future impeachments. The House has now done that and then went another step further.

Instead of submitting an insufficient record, it submitted no record at all in a second impeachment of the same president. For Senate institutionalists, that comes across as a virtual taunt. Even one hearing in the House could have supplied some evidence on the intent of Trump for the riots at the Capitol. Witnesses could have addressed whether the National Guard was offered to Congress in advance or whether Trump obstructed any such assistance. Answers could have been demanded from the White House. Acting Defense Secretary Christopher Miller gave interviews on Oval Office discussions about that issue but was not called to testify.

I have no problem with removing a president on his last day in office, as impeachment plays an important role in condemning illegal actions. But there must be some record and not just a conclusory statement in a snap impeachment. Like the threshold constitutional issue, the prudential issue is a matter for Congress and not the accused. It is not about what Trump did but what the House failed to do in sending a bare article to the Senate, which was effectively asked to carry the burden for both chambers. With an acquittal now likely, those significant prudential concerns will become magnified for Senate institutionalists down the road.

Jonathan Turley is the Shapiro Professor of Public Interest Law with George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as an expert for the impeachment hearings of Bill Clinton and Donald Trump. Follow him with Twitter @JonathanTurley.

93 thoughts on “Ruling On The Record: The Senate’s Looming Prudential Questions Could Weigh Heavily With Members On Witnesses and Conviction”

  1. Maybe a day of hearings would have been wise but the remaining Republicans were looking for an easy way out and you gave it to them Jonathan. Hiding behind process is Manna from heaven.

    Overall what the Democrats did was correct. They Impeached Trump while he was still in office and then allowed time for the Senate to adequately prepare a trial. Art1:Sec3 “The Senate shall have the sole Power to try ALL Impeachments.” (not some or most but ALL).
    There is NO implied deadline. The only process argument I am sympathetic with is not blind siding the Defense team with new unrelated charges or unanticipated evidence. I see no evidence of that, do you?

    You may disapprove of this but I believe it would be okay to impeach Trump for actions closely related to but not precisely matching the literal wording of the charge. I a better case developing where Trump was trying to use his supporters to physically intimidate Congress to change the vote. This is closer to extortion rather than incitement to violence, violence was just an unexpected perk for that sociopath. For me, it’s important that the Defense has to respond to the events or actions leading up to that day rather than the slavish wording of the charge. It would be a foul if the Democrats suddenly produced banking records for an unrelated matter.

    This is NOT a criminal case. It does not have the same due process requirements. Since Art1:Sec3 limits the sanctions Congress can impose, it makes it more analogous to an employer firing an employee for misconduct. This IS a censure with some teeth, loss of pension, travel budget, staff, and future opportunity to hold federal office but no imposition of fine or prison term.

    Last point: “When the President of the United States is tried, the Chief Justice shall preside”
    The inference here is that the Senate is allowed to try both Presidents and NON-Presidents. The lack of Judge Roberts just indicates that he is currently not President but does not negate his trial.

  2. Jonathan: It’s pretty clear where you stand on Trump’s second impeachment trial. Before the 45 Republican Senators voted to acquit Trump without a trial you say you met with them to “discuss the historical and constitutional issues”. You also say you had “an inspiring discussion”. “Inspiring” is an interesting choice of words. No doubt it was “inspiring” that you were able to convince the “gang of 45” to vote against convicting Trump because, as you explain in your column that a “snap” impeachment “without any hearing, any testimony, any response from the president” is reason enough not to convict. Since it appears few if any witnesses will be called in the Senate trial this was your chance to weigh in and try to sway the Republican vote without fear of contradiction as happened when you testified in the first House impeachment inquiry. In the House Judiciary Committee hearing that time you were the sole constitutional expert who thought Trump should not be impeached. This time you didn’t want to take any chances that you might not be called to testify.

    But Trump has more immediate and serious problems. He can’t find any lawyer to represent him in the Senate trial. Just a week before the trial is to start his lawyers have bowed out with explanation. All of the lawyers who represented Trump in the first impeachment trial have run for the exit. Trump is so toxic no reputable law firm will represent him. Steve Bannon is telling Trump he doesn’t need an attorney and should defend himself. I’m sure you would agree this would be a huge mistake. Trump is his own worst enemy. This is your chance, Jonathan, to step up to the plate and offer to represent the Trumpster. Few opportunities come along for criminal defense attorneys, like you, to represent a former president in a Senate impeachment trial. Grab the golden ring before it is too late!

    1. You should have ended your post upon finishing the first paragraph…..as your second paragraph went off down a very old Rabbit Hole.

      Trump is such a loser isn’t he when it comes to Impeachments as history shows us in big bold black print.

      The Democrats rushed the first one through DESPITE the sage counsel Professor Turley gave them in public during the Hearing leading up to the issuance of the Articles in the first Impeachment.

      This time….the Democrats were up against a much shorter period of time and skipped over any pretense of an investigation or series of hearings and skipped right over to issuing another Impeachment Article.

      Both times the Democrats sought to have the Senate do the both the jobs of the House AND the Senate.

      They were a gross failure the first time….having ignored Turley….and basically ignored both Turley and recent history the second time.

      The coming result shall be far worse for them this second time…and they shall pay a huge price for their ignorance and arrogance.

      Think not…..just hide and watch!

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