… well, practically everyone not named Nancy Pelosi or Chuck Schumer, since there is no mention of witnesses in the Constitution. This particular argument came from the then-Senate Judiciary ranking member and former chair in the most recent presidential impeachment before Donald Trump’s. You might recognize him better as the Democratic frontrunner to replace Trump:
[Joe] Biden circulated the four-page document, titled “Arguments in Support of a Summary Impeachment Trial,” on Jan. 5, 1999. In his memo, obtained by POLITICO, Biden cited historical precedents from impeachment cases going back to the establishment of the Senate and asserted “The Senate need not hold a ‘full-blown’ trial.
“The Senate may dismiss articles of impeachment without holding a full trial or taking new evidence. Put another way, the Constitution does not impose on the Senate the duty to hold a trial,” Biden wrote at the time.
The Delaware Democrat added later: “In a number of previous impeachment trials, the Senate has reached the judgment that its constitutional role as a sole trier of impeachments does not require it to take new evidence or hear live witness testimony.”
What a difference an (R) makes, eh? When it came to Bill Clinton’s trial, Biden seemed fine with just getting straight to either a dismissal or a vote on whether to convict. The memo leans more toward supporting a dismissal, but the logic works either way. It’s completely up to the Senate to decide whether to call witnesses, but contra Pelosi, that decision has no impact on the legitimacy of a Senate trial. To argue otherwise, at least in concept, would be to taint everyone who ever had a judge dismiss a case for lack of evidence, an absurd notion.
Unfortunately, Biden’s memo in favor of this argument is rather weak sauce, which might be why it didn’t convince the Senate twenty-one years ago, or at best didn’t impact the trajectory of Clinton’s trial. The memo itself starts off with examples of people who had already been removed from office and who got dismissals because the issue had been mooted. The other examples cited showed that the Senate considered dismissal motions before proceeding to witnesses. Biden argued that this proves dismissals or votes on conviction/acquittal are legitimate without witnesses, which they are, but it’s not exactly a great example of citing analogous precedent. It is, however, a great example of the quality of Biden’s work in general.
Notably, however, Biden argued at the time that the Senate should take all opportunities to expedite the trial to avoid damage to “national prestige, faith in public institutions, etc”. In fact, Biden argued, that’s what makes a Senate trial better than a traditional judicial trial:
In 1999, Biden also said senators should take into account the impact drawing out the impeachment proceedings would have on the country.
“In light of the extensive record already compiled, it may be that the benefit of receiving additional evidence or live testimony is not great enough to outweigh the public costs (in terms of national prestige, faith in public institutions, etc.) of such a proceeding,” Biden said. “While a judge may not take such considerations into account, the Senate is uniquely competent to make such a balance.”
In light of the fact that we already know how this will turn out, what’s the point of dragging it out any further? That was Lamar Alexander’s point in his statement last night when he argued that “there is no need for more evidence to prove something that has already been proven and that does not meet the United States Constitution’s high bar for an impeachable offense.” If the conduct alleged doesn’t violate any statutes and is “inappropriate” (to use Alexander’s term) rather than criminal, then it doesn’t rise at all to a level requiring impeachment and removal. Why damage “national prestige” by dragging it out anyway?
Anyway, this isn’t going to convince anyone to change their vote from Aye to Nay on witnesses today. It might provide a little bit of political cover for those already in the Nay camp or looking for excuses to get there. Expect at least a couple of references to this memo in today’s Senate debate over motions for subpoenas, and maybe in rebuttals to whatever Pelosi is mumbling today.