Witness-less: Senate Democrats going through the motions on impeachment trial

A year ago, Senate Democrats demanded the right to call witnesses in Donald Trump’s first impeachment trial, while Mitch McConnell insisted that the House had already presented testimony. This time around, neither party really wants to bother, according to Politico. Apart from a half-hearted attempt to goad Trump into appearing at his trial, Senate Democrats have little appetite for dragging the trial out before its obvious conclusion.

That’s not to say that they aren’t trying to spin it for maximum PR:

“This is based on a public crime,” said Sen. Richard Blumenthal (D-Conn.). “His intent was unhidden and so I think there’s a danger as there always is for a trial lawyer and prosecutor to over-try, to add more witnesses that prove the obvious.”

Sen. Brian Schatz (D-Hawaii) compared the situations this way: “Imagine if the Ukraine call were streamed on the Internet.” And given how dug in most members of both parties are, he observed: “It’s not clear to me that there is any evidence that will change anyone’s mind.” …

But for the moment, the trial is not expected to last more than a week, though that could change if witnesses are brought in. Some Senate Democrats have called for a prompt trial, citing other priorities like coronavirus relief and the extreme unlikelihood that 17 Republicans will join them in convicting Trump. Meanwhile, most Republicans are coalescing around the argument that impeaching a former president is unconstitutional.

“Both sides would kind of like to wrap it up fairly quickly,” said Senate Minority Whip John Thune (R-S.D.). “If they want to call witnesses, that prolongs it for sure. And I think you’re talking about pushing into the next week, the week after that perhaps, because then both sides will have that option available to them.”

The we-are-our-own-witnesses argument might sound good for public consumption, but it’s not borne out by the article of impeachment — at least not by any legal standard. The House indicted Trump for having “repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud.” To convict on that charge, one would have to have some testimony establishing those falsehoods as a fact, and furthermore demonstrate some evidence that Trump knew they were false. The House could have done that fairly easily by taking testimony before the impeachment, but they didn’t bother with that step, n part because the clock was running out on Trump’s term.

Furthermore, to convict on incitement, a prosecution would have to establish a mens rea for incitement, especially in light of Brandenburg. The article only posits one sentence from Trump’s January 6th rally speech as its evidence: ‘‘if you don’t fight like hell you’re not 14 going to have a country anymore’’. This is pretty standard populist rhetorical fare, not an explicit and specific exhortation to riot. Finally, while the House included the call to Brad Raffensperger as an abuse of power, that still requires testimonial foundation to establish it as evidence, let alone the issue of determining what Trump meant in it.

All of this legal insufficiency is a direct result of the shortcuts taken by the House, whether by necessity or not. However, it’s largely irrelevant for two reasons. First, no one expects that Trump will get convicted, as only a handful of Senate Republicans even will allow that the Senate has jurisdiction over a former officeholder. Second and only slightly less importantly, the trial isn’t actually a legal process, as Andrew McCarthy reminds us today. It’s a political process:

In this extraordinary case, it falls to the Senate to conduct the trial. This notion is largely alien to us. Thousands of trials occur throughout the United States on a daily basis. Yet, those are judicial trials. They are the ones we know. We are very familiar with the high standards of due process to which they must adhere, developed over centuries of Anglo-American law. …

You’re thinking that because the proceeding is a “trial,” then fairness must be an absolute requirement. But it is not. Impeachment is not meant to be fair. It is meant to be political.

That’s not a bug, it’s a feature. Trump’s liberty and property are not at stake – which is when due process requires a judicial trial with all the due process trimmings. Impeachment is a political power the Constitution gives to Congress, a political branch, in order to strip political authority, by removing it or denying it in the future. …

All of this will unfold starting Tuesday. What it will look like, we can’t be sure. We know only that, though it will be called a “trial,” what we’ll be watching won’t be due process. It will be political process.

This is largely correct, but it’s the lack of due process that will define the political process, too. It gives Senate Republicans another argument that the trial is both politically and legally unfair, as well as unconstitutional. The lack of foundation before what will essentially be a week consisting solely of opening and closing arguments might be sufficient for a censure, but not for a permanent removal/disqualification penalty. As at least a few Senate Republicans will no doubt remind their colleagues, both chambers of Congress require more foundation for expelling their own members — and that’s not necessarily a permanent disqualification anyway.

Mostly, though, they’ll rely on the constitutional argument. That may not carry the day even with all Republicans, however. Conservative legal expert Chuck Cooper argues in the Wall Street Journal that a trial for a former president isn’t barred in a textual sense, and in a legal sense the Constitution foresees that as a consequence of disqualification:

If removal were the only punishment that could be imposed, the argument against trying former officers would be compelling. But it isn’t. Article I, Section 3 authorizes the Senate to impose an optional punishment on conviction: “disqualification to hold and enjoy any office of honor, trust, or profit under the United States.”

That punishment can be imposed only on former officers. That is because Article II, Section 4 is self-executing: A convicted officeholder is automatically removed at the moment of conviction. The formal Senate procedures for impeachment trials acknowledge this constitutional reality, noting that a two-thirds vote to convict “operates automatically and instantaneously to separate the person impeached from the office.” The Senate may then, at its discretion, take a separate vote to impose, by simple majority, “the additional consequences provided by the Constitution in the case of an impeached and convicted civil officer, viz: permanent disqualification from elected or appointed office.”

Thus a vote by the Senate to disqualify can be taken only after the officer has been removed and is by definition a former officer. Given that the Constitution permits the Senate to impose the penalty of permanent disqualification only on former officeholders, it defies logic to suggest that the Senate is prohibited from trying and convicting former officeholders.

That’s a pretty good point, but it’s not an issue that will ever go to the Supreme Court for adjudication. The predictable outcome of this trial — acquittal — means there will be nothing to appeal at the end of this trial. Except, of course, to voters … who apparently didn’t care much about Trump’s previous impeachment when they had a chance to weigh in on it.

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