Turley to Senate Dems: Kill the obstruction article to save your case

After last night’s debacle in closing arguments from Adam Schiff and Jerrold Nadler, this advice might come too late. If House Democrats had any tactical inclination last night, they wouldn’t have included the uncorroborated rumor of “head on a pike” as evidence in their presentation, nor made the laughably absurd accusation of Donald Trump being a “dictator” to the Senate Republicans who must decide his fate. But if Senate Dems do want to salvage any hope of getting four of their votes to reopen the investigation of their case, Jonathan Turley advises in a Washington Post column that they will have to cut their case in half.


First, Turley laid out on CBS even before their closing how they’ve probably already lost the case through their unnecessary hyperbole:

That problem became even more acute afterward, especially with the angry reaction from the moderate Republicans whose votes they need to get subpoenas issued. If they want to pursue the case rather than just “face time on national television,” Turley writes, then they have to offer a compromise that will satisfy Senate Republicans’ concerns. And that, Turley says, is to arrange the demise of the second article of impeachment over obstruction:

To put it simply, it may be time to dismiss Article II. The obstruction-of-Congress article was dead on arrival, but holding a vote to dismiss the article anyway would allow the Senate to go on the record in opposition to the House handling of this impeachment.

It just might be enough to open a path for witnesses on Article I and the abuse-of-power charge.

The House destroyed any chance for an obstruction article when it made an impeachment by Christmas its overriding priority. The short period set by the House did not allow the White House to challenge a subpoena and effectively made the seeking of judicial review a “high crime and misdemeanor.” …

If the House had simply gone to court to enforce a subpoena, it would have forced a review of such privilege questions. Even before the impeachment vote, Bolton indicated his interest in testifying but it would require a subpoena. The House, however, refused to issue such a subpoena or take other reasonable steps to secure evidence because it feared such a move would push the court proceedings into late spring or beyond. Magnifying this mistake was the decision of the House to withdraw the subpoena issued for Charles Kupperman, Bolton’s deputy. Kupperman indicated he might testify but went to court for review of the subpoena. Before the court could rule, the House pulled the subpoena. Judge Richard Leon seemed nonplussed in dismissing Kupperman’s case, stating, “the House clearly has no intention of pursuing” the witness.

It is time for Democrats to acknowledge the blunder in the rushed vote.


Note, however, that Turley advises Democrats to offer a dismissal vote, a move that Senate Democrats have resisted all along. It’s not clear, either, that Senate Republicans would agree to a dismissal rather than a deal where a majority of Democrats would join them in acquittal on that article. Only then would “the Senate go on the record” with its disapproval of the House process — along with the requisite humiliation for Schiff and Nadler that it would deliver. After yesterday, it seems difficult to believe that Republicans would settle for anything less. Besides, a dismissal wouldn’t necessarily be a heavy enough precedent to dissuade future Houses from pulling the same stunt.

At this point, though, it’s also tough to see why Senate Republicans would feel the need to cut a deal. Let’s not forget that the House has now put forward its full case to the Senate, and at least partially discredited it with their last-minute antics over the “head on a pike” inclusion by Schiff. That will no doubt have revived the suspicions that Schiff has misrepresented his “evidence” in his hearsay case and reinforced the impression that Schiff has turned speculation into substance through partisan alchemy. And this time, Senate Republicans themselves are the primary defense witnesses that can blow holes in those allegations:

But as the night came to a close, Schiff, the House Intelligence chairman, was talking about the complicated politics of the impeachment trial and how different his own safe district might be from battleground states where GOP senators will soon face voters. Then as he wrapped up his case and read the quote from a CBS story: That a Trump ally said “GOP senators were warned … ‘vote against the president and your head will be on a pike.'”

The mood in the room shifted entirely. Several Republican senator murmured “not true” as soon as Schiff said it. Collins shook her head and said “not true” several times. Schiff quickly tried to recover.

“I don’t know if that’s true. But when I read that, I was struck by the irony,” Schiff said. “I hope it’s not true. I hope it’s not true.”


Nonsense. Schiff obviously not only hoped it was true, he was convinced it was true and hoped that its inclusion would resonate among the allegedly threatened senators. Schiff, however, didn’t take the time to confirm it was true before making part of his case to impeach Donald Trump. That, in fact, speaks volumes about how Schiff put the abuse-of-power case together, which should now be raising eyebrows among the moderate Republicans in the caucus. Put that together with Schiff’s continued insistence over two years that he had direct evidence of Trump’s collusion with Russia right up to the point when Robert Mueller declared that no such evidence exists, and Schiff looks less like a prosecutor and more like Cotton Mather. Schiff’s case is nothing but innuendo, hearsay, and speculation — and he made that clear to Senate Republicans last night.

That’s why that moment may make Turley’s advice moot. Schiff not only didn’t sell the obstruction charge, he also blew up the credibility of the abuse of power charge among the people he most needed to get his investigation re-opened:

“Not only have I never heard the ‘head on the pike’ line but also I know of no Republican senator who has been threatened in any way by anyone in the administration,” [Susan] Collins said. …

Lisa Murkowski thought Adam Schiff was doing a pretty good job prosecuting the case against President Donald Trump as he made his opening arguments. That is, until he read an anonymous quote warning Republican senators to vote with Trump or end up with their “head on a pike.”

“I thought he was doing fine with moral courage until he got to the head on a pike. That’s where he lost me … he’s a good orator,” said the Alaska Republican, whose vote is crucial in the Democrat’s push to subpoena new witnesses and documents in the trial. “You’ve got to give him that. And he was moving right along with good oratory … it was just unnecessary.”


At this point, Senate Republicans don’t have any real reason to cut a deal. They likely already had 53 votes to acquit anyway, and after Schiff and Nadler finished last night, they probably have at least 51 votes to deny subpoenas to any witnesses. Why would they prolong this sad circus any further?

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