The Washington PostDemocracy Dies in Darkness

Opinion This is when the upside-down trial can be exposed

Columnist|
January 21, 2020 at 11:30 a.m. EST
Senate Minority Leader Charles E. Schumer (D-N.Y.) talks to reporters at the Capitol last week. (Julio Cortez/AP)

The Post reports on the resolution including proposed impeachment trial rules that Senate Majority Leader Mitch McConnell (R-Ky.) set forth Monday, less than 24 hours before the start of the impeachment trial. It is easy to see why McConnell waited until the last moment:

The resolution … allows Trump’s team to move to dismiss the charges at any time — although it is not explicitly mentioned in the four-page measure — because doing so is allowed under standard impeachment trial rules. The Senate trial also won’t automatically admit evidence from the House process, according to GOP officials, a key difference from the impeachment trial of President Bill Clinton more than two decades ago. Though the material will be printed and made available to senators, it won’t be automatically admissible unless a majority of senators approve it.

Any witnesses must be deposed first, and their testimony heard if only a majority votes to allow it. That will take place after the cases are presented.

The latest Trump impeachment trial updates

This makes no sense because, obviously, one cannot present the case without evidence, and indeed a case is evidence to which the trier of fact must apply the law. How can one know what is permitted and what is not if, as of the start of the trial, neither new evidence nor old evidence is part of the record? You’ve got me.

The “record,” contrary to the Clinton impeachment rule, would not automatically include documents sent by the House, I suspect, because Republicans want to cover up (i.e., keep out) Lev Parnas’s documents and the Government Accountability Office report finding the administration broke the law by holding up aid to Ukraine.

Senate Minority Leader Charles E. Schumer (D-N.Y.) bashed the obvious coverup. “After reading his resolution, it’s clear Sen. McConnell is hell-bent on making it much more difficult to get witnesses [and] documents and intent on rushing the trial through,” Schumer tweeted. “On something as important as impeachment—Sen. McConnell’s resolution is nothing short of a national disgrace.”

Schumer continued:

One consolation: If there is no record to begin with, the House managers can, I suppose, talk about whatever evidence they please.

On Tuesday morning, Schumer announced a clever maneuver. He will offer amendments to the resolution that specifically call for documents and witnesses, forcing Republicans to choose between a cover-up and a real trial.

If that fails, the next opportunity to expose this Alice in Wonderland set of rules (“Sentence first — verdict afterward!”) may come during the question period of 16 hours following the two sides’ presentation of their cases.

Fifteen of the GOP senators who will try President Trump's impeachment were in Congress during the Clinton impeachment. Only one voted to acquit Bill Clinton. (Video: The Washington Post, Photo: AP, Washington Post, Reuters/The Washington Post)

As to the questions, so long as McConnell is bent on covering up Trump’s misdeeds, Democrats should feel free to expose the coverup with questions such as:

  • I remember reading about the GAO report in the newspaper. Why am I not allowed to see it?
  • I saw the Lev Parnas interviews. Why can’t all my colleagues see and consider those statements?
  • What would John Bolton say if under oath? If you don’t know, why can’t he appear? (The same questions should be asked of Secretary of State Mike Pompeo, acting chief of staff Mick Mulvaney, his aide Robert B. Blair and Office of Management and Budget aide Michael Duffey.)
  • Why can’t I see State Department documents that U.S. Ambassador to the European Union Gordon Sondland said he was not allowed to review?
  • Is the president arguing it is acceptable to solicit help from a foreign power to dig up dirt on a domestic political opponent?
  • Where did President Trump in private or in public ever say he wanted to root out all corruption in Ukraine? Didn’t he want to repeal U.S. law prohibiting a U.S. company from engaging in bribery overseas?
  • Is it normal procedure for the president to ask a foreign power to investigate an American suspected of wrongdoing? Isn’t the FBI or Justice Department supposed to do that work to, among other things, protect Americans’ constitutional rights? Why can’t we hear from Attorney General William P. Barr on this point?
  • Was Rudolph Giuliani representing the president personally or representing the United States? I seem to recall Mr. Giuliani saying on national television that of course he asked the Ukrainians about the Bidens, so why can’t we consider that evidence?
  • If Giuliani was representing the president personally, how did he and his associates have authority to instruct the Ukrainians that U.S. taxpayers’ money (i.e., military aid) would not be delivered to Ukraine until conditions were met?
  • If President Barack Obama refused to make any witnesses or documents available to Republican-controlled committees investigating the killing of our personnel in Benghazi, Libya, would that have been constitutionally acceptable?
  • If it is constitutionally acceptable never to provide Congress with documents or witnesses because a president thinks it is behaving politically, how can Congress ever do its job?

The funny thing about disallowing witnesses and documents is that such a tactic inevitably winds up putting on trial the president’s lawyers and Senate Republicans who are aiding and abetting them. Democrats can ask whatever questions they please, and thereby help educate the voters about the illogical, fraudulent and constitutionally dangerous case Trump is trying to make. I suspect sharp questioners such as Sens. Kamala D. Harris (D-Calif.) and Richard Blumenthal (D-Conn.) will think so, too.

Businessman Lev Parnas just tied the president and his lawyer to an effort to pressure Ukraine to investigate Trump's political rival. (Video: The Washington Post, Photo: Courtesy House Intelligence Committee/The Washington Post)

Read more:

George Conway: The worst thing about Trump’s answer to the impeachment articles

Charles Lane: Don’t tell the partisans, but so far impeachment’s political fallout is negligible

Harry Litman: Dershowitz and Starr may bring a slightly more reality-based Trump defense

Jennifer Rubin: Five guidelines for the House impeachment managers

Max Boot: Trump would never go for a plea bargain, so it looks like jury nullification is his only option

Laurence Tribe: Trump’s lawyers shouldn’t be allowed to use bogus legal arguments on impeachment

The latest commentary on the Trump impeachment

Looking for more Trump impeachment coverage following the president’s acquittal?

See Dana Milbank’s Impeachment Diary: Find all the entries in our columnist’s feature.

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Read the most recent take from the Editorial Board: It’s not over. Congress must continue to hold Trump accountable.

The House impeachment managers weigh in in an op-ed: Trump won’t be vindicated. The Senate won’t be, either.

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