We recently discussed how the Senate will have to decide whether to call witnesses in the second impeachment trial of former President Donald Trump. The use of a snap impeachment raises a basis for some senators to oppose such witnesses on institutional or prudential grounds. Democrats opposed any witnesses in the Clinton impeachment and there were no witnesses in the first Trump impeachment trial. Not surprisingly, the House is demanding witnesses. The initial vote in the trial shows that it is substantially short of the number of senators needed to convict and Trump could be acquitted on a virtual 50-50 vote. So here is my question: why has the House not used the last few weeks to call these witnesses and build the needed case to show intent to incite an insurrection? Weeks have gone by with key witnesses speaking to the press but not to the House. Why?
I raised this possibility weeks ago since such House hearings could influence the Senate trial. Even if the transcripts were barred by the Senate, senators would be aware of the evidence and testimony. There has been limited testimony on the response to the riot but most key witnesses have not been called to public hearings on evidence related to Trump’s conduct or intent. Many are clearly willing to testify since they are speaking openly with the media.
I have no idea if such evidence exists but I, like most Americans, would like to know if it does. I was critical of Trump’s speech while he was giving it. I also opposed the challenge to the electoral votes and criticized the President’s false statements about the authority of Vice President Mike Pence to “send back” these votes. However, I have also said that, without evidence of intent, this case of incitement would fail in the Senate. Indeed, while many legal experts have claimed that this is a strong case for criminal incitement, I believe it would ultimately collapse in the federal courts on free speech grounds.
The House can show intent directly and circumstantial from evidence of the President’s conduct and statements before and after the speech. The National Guard deployment is clearly a place to start. Did Trump delay or obstruct deployment? We still do not know despite this being one of the easier questions to answer. Those questions will not be answered by calling the “Shaman” on whether he felt that Trump wanted him to riot or engage in insurrection. Such testimony will show how Trump’s words were received (which is relevant) but not what he intended.
There is a tendency in Congress to follow the litigation rule not to ask witnesses questions that you do not know the answer to in advance. However, the absence of hearings on Trump’s role is glaring as the House managers claim that many in the Senate do not want to hear the truth. There are two houses of Congress and the Democrats are in total control of the House.
There has clearly been inquiries and limited testimony but very little information has been made publicly, including information that is clearly in the possession or available to the House. Instead reports indicate that the House is building what was described as an “emotionally charged” case before the Senate with cellphone calls and witness testimony rather than evidence focusing on the intent element. I admit that I have the bias of a criminal defense attorney but that is not a case for conviction. It is a case of public appeal.
This question is even more striking given the public statements of key witnesses like former Acting Secretary of Defense Chris Miller and his two closest aides, Kashyap “Kash” Patel and Ezra Cohen. Miller says that Trump told him the day before the riot that “You’re going to need 10,000 people.” Miller added “No, I’m not talking bullshit. He said that. And we’re like, ‘Maybe. But you know, someone’s going to have to ask for it.’” He said Trump responded “You do what you need to do. You do what you need to do. You’re going to need 10,000.’”
That account shows Trump knew that there might be problems with the rally the next day. Many voiced the same concern. However, it also shows Trump warning that troops would be needed. The question is whether he did anything to prepare for such a deployment or interfere or delay with deployment. Witnesses like Miller would know. Yet, they are giving interviews but not public testimony under oath.
The House has held hearings on the riot but those hearings seem weirdly tailored to avoid core issues related to the trial. For example, U.S. Capitol Police chief Yogananda D. Pittman testified but did so in a closed session. She reportedly apologized to Congress “and the American people” for the obvious securing failures on Jan. 6th. She also said that they were aware of the danger of a riot in advance but failed to take adequate steps” “Let me be clear: the Department should have been more prepared for this attack.”
Maj. Gen. William Walker, the commanding general of the D.C. National Guard, has also given interviews and said that deployment of his troops were delayed by over an hour because he needed approval from the Pentagon. He said that he usually has authority to deploy without approval. If that is true, why was he not called for testimony in the House to explain the timeline and whether the authority was removed specifically for that day?
There is a great deal of information in the hands of Congress on the requests for deployment and interaction with the Trump Administration. There are records and other non-witness sources of evidence that could also be used to create a record. Yet, the House has been comparatively passive in calling those witnesses that it wants to hear from in the Senate. Again, why?
This is the same pattern with the first Trump impeachment when the House waited weeks demanding witnesses that it could have called or subpoenaed before the House Judiciary Committee. It did nothing and then denounced the lack of testimony on key issues. Both trials turned on intent and the House could not expect to prevail without such evidence. It was like a case of planned obsolescence in building a case to collapse.
There are by my count at least ten key witnesses who have already spoken publicly or would be easily attainable including Miller, Walker, Pittman, Patel, Cohen and others. Yet, there is nothing but crickets from the House.