First, the decision not to subpoena key witnesses during the House investigation on the theory that it would take too long to litigate Trump’s obstruction in the courts was inexcusable. Had Democrats taken this very rudimentary legal step, the incessant Republican argument that Democrats should bear the fallout for failing to use their subpoena power when they had it would have been off the table during the Senate trial. There is no good reason, moreover, why subpoenas could not have been followed up with motions to compel. House Manager Adam Schiff’s point that former White House Don McGahn’s subpoena fight has been tied up in the courts for months is well taken. But the House could have moved forward with impeachment without waiting for the resolution of all the appeals of all the subpoena fights. Had these efforts proceeded in tandem, congressional Democrats would hardly be worse off than were on Thursday—begging Senate Republicans to allow just one week of depositions so that the critical testimony of people like former National Security Advisor John Bolton can be heard. Although it’s no excuse for Republicans’ hiding of the facts from the American people now, House Democrats erred in not even bothering to subpoena Bolton when they had unfettered power to do so.
Ironically, moreover, the privately filed Freedom of Information Act lawsuit that produced key documentation relating to the Office of Management and Budget’s $391 million aid freeze was cited by Trump’s counsel on Thursday as a defense to the second article of impeachment charging obstruction of justice. That FOIA request, lawsuit, court order, and production took place within the time period that House Democrats could have sought judicial assistance for themselves. Imagine if a slew of federal judges had uniformly denounced Trump’s obstruction—because settled, unambiguous precedent would have required them to—as House managers made their case to the Senate. Not only would it have shored up the legitimacy of the impeachment inquiry itself, but the American people might have had fuller facts to consider when calling on their senators to authorize a fair process and when heading to the polls in November 2020.