Schiff: We're mulling a subpoena for Bolton -- three months late

Will the House Intelligence committee do what it should have done three months ago? Adam Schiff says he’s “considering” it in light of John Bolton’s change of heart, but he doesn’t sound terribly enthusiastic about the prospect. Schiff pronounces himself “skeptical” that Bolton would actually appear in the first place, but tells Joy Behar that it’s the Senate’s job to provide a factual basis to dispute the speculative case the House has made for impeachment without first-hand witnesses.

That’s, um, an interesting argument:

BEHAR: The good news is that 71% of Americans want to hear from witnesses at the Senate trial. They really do. And, but, I have a question — if that doesn’t happen, how seriously are you considering calling new witnesses like Bolton in the House? You guys never issued a subpoena for Bolton because he said he’d fight it. Will you issue one now? He sounds like he’s interested in coming by and testifying. What are you going to do?

SCHIFF: We are considering whether to subpoena him in the House. If we’re approaching this rationally, though, the senators will be the triers of fact. They should hear from the witness firsthand. It makes little sense to have the House depose John Bolton and then submit that deposition to the Senate. The Senate ought to hear from him quite directly.

Actually, it makes little sense that the House didn’t pursue Bolton’s testimony directly. If Schiff thinks it’s that important to his case, why didn’t Schiff issue a subpoena, let alone attempt to enforce it if necessary by taking Bolton to court? On one hand, he’s arguing that it’s unnecessary for the House to call him, but then demanding that the Senate do what he himself refused to do.

Besides, as Schiff notes, all this means is that the same court challenge would take place now rather than earlier:

SCHIFF: I also have to say that I’m skeptical that Mr. Bolton will appear before the House. He has refused to in the past. He’s only said that he will appear before a Senate subpoena, and yes, we could expose that there’s no constitutional or legal basis to distinguish between a House and Senate subpoena.

Schiff’s correct about there being no distinction between the two. Of course, Schiff still hasn’t subpoenaed Bolton, so there’s no case to make on that claim.

Next, Schiff seems to think that the Senate has to enter this with a presumption of guilt rather than innocence. To make the case that the impeachment is totally invalid, Schiff says, the Senate must call the witnesses that the House declined:

SCHIFF: But our goal is not to make John Bolton look bad or expose the hypocrisy of that position. Our goal is to have a fair trial in the Senate, to let the senators evaluate the evidence. And unless the senators are prepared to say there’s no factual issue to contest, we fully accept the House has made the case that the president did withhold aid, did withhold this White House meeting, did try to extort the Ukrainian leader to help him cheat in the election, unless they’re willing to say that there’s no factual dispute, the Senators need to hear from these additional witnesses. There’s really no case to be made against it.

This in particular is utter nonsense. Criminal cases routinely get dismissed for lack of evidence because the burden of proof is on the prosecution, not the defense. It’s not incumbent for defendants to provide testimony to refute a speculative case based on hearsay, speculation, and secondhand sources. Schiff himself admits that the case lacks firsthand testimony, which means that it’s a highly defective “indictment,” one that wouldn’t get past a preliminary hearing and maybe not even an arraignment. It’s up to the prosecution to provide a factual case of wrongdoing, not the defense to prove a negative in relation to speculation. In this process, it’s the Senate’s job to see whether (a) the House has fulfilled its duty in laying out a factual case for impeachment and (b) whether that case rises to the level of removal. It’s not the Senate’s job to create the case for impeachment as well.

And then Schiff admits that the case is even more incomplete than just lacking witnesses:

SCHIFF: And one final point, and this is often neglected, the documents may be every bit as important. The president has refused to provide a single document in the investigation. We’ve never had this kind of a wholesale obstruction of Congress. Those documents may be very telling and undoubtedly very damning, because the ones that have come out most recently once again reveal in incriminating fashion the president’s misconduct. So those documents need to be produced as well.

Once again, the House had an opportunity to fight for those documents. Why didn’t they? They wanted to rush the impeachment to get it done before the end of the year, that’s why. Also, the reason why we saw such “wholesale obstruction of Congress” is because we’ve never seen a Congress so obsessed with impeaching a president on any pretext at all. The White House would likely have still lost those cases regarding the documents had Schiff taken them to court, but he didn’t. Now he wants the Senate to do the job Schiff couldn’t take the time to do himself.

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