When the Senate on Friday — in the most partisan impeachment trial in the nation’s history — voted against calling more witnesses, Senate Minority Leader Chuck Schumer did what he always does: Scold Americans.
“To not allow witnesses or documents in an impeachment trial is a grand tragedy, one of the worst tragedies that the Senate has ever overcome. America will remember this day — a day when the United Senate did not live up to its responsibilities, turned away from truth and instead went along with a sham trial. If the president is acquitted with no witnesses, no documents, any acquittal will have no value because Americans will know that this trial was not a real trial. It’s a tragedy on a very large scale,” the New York Democrat said.
But of course it was nothing like that. It was the Democrats who had perpetrated the great “sham trial,” and it was a glorious victory for the Founders when the austere body voted to put an end to the purely political circus.
On the final day of debate, the Democrats debuted a whole new strategy: Call for a suspension of the trial, a break, to give them time to collect more evidence. The dribs and drabs of supposed scandal from Trump-hating former National Security Adviser John Bolton’s unpublished book, flowing from the New York Times manuscript — in a coordinated effort with Democrats, of course — had dried up, so they really had nothing.
“We propose we suspend the trial for one week and that during that time, you go back to business as usual,” Rep. Zoe Lofgren (D-CA), one of the House impeachment managers, told senators. “While the trial is suspended, we’ll take witness depositions, review the documents that are provided at your direction. The four witnesses you should hear from are readily available, Ambassador Bolton has already said he will appear.”
The Democrats were serious. They were asking for the entire proceeding to be shut down so they could go gather more evidence — the evidence they were supposed to have gathered during the impeachment inquiry and hearings in the House. In the case of a criminal trial, that would have been like the prosecution telling the judge, “Your honor, we didn’t do a good job preparing for this case and we don’t have any evidence, so can we get a week to go dig some up?”
As House impeachment managers argued again and again that Senate Republicans wanted to conduct the trial against President Donald Trump without witnesses or evidentiary documents, Trump’s deputy White House counsel Patrick Philbin eviscerated them, saying they’d presented a case that stemmed from “a half baked, slap-dash process.” And he noted that the House impeachment investigation included 17 witnesses whose testimony was provided to the Senate — 192 clips of which were played in the Senate — as well as 28,000 pages of documents.
“We heard from a lot of witnesses in the proceedings so far,” Philbin said. “You’ve got all of those transcripts, so you can see those witnesses’ testimony there. You’ve got a lot of evidence already.”
“But there’s another principle that they overlook when they say, ‘Well, if you’re going to have a trial there just have to be witnesses,’ as if the most ordinary thing is that you get to trial and then start subpoenaing new witnesses and documents. That’s not true, either,” Philbin said.
“In the regular courts, the way things work is you’ve got to do a lot of work preparing a trial, called discovery, to find out about witnesses and depose them and find out about documents before you get to trial. You can’t show up the day of trial and say, ‘Oh, your honor, we’re actually not ready, we didn’t subpoena John Bolton, or witness X or witness Y. And now we want to subpoena that witness, now we want to do discovery.
Then Philbin tied it all together.
“To show up not having done the work and to expect that work to be done in the Senate, by this body, has grave consequences for the institutional interests for this body and it sets a precedent … for the Senate and the House,” the lawyer said on the Senate floor. “[The House] did a process that wasn’t fair,” Philbin said. “They did a process that was arbitrary, that arbitrarily denied the president rights. They did a process that wouldn’t allow witnesses, and then they came here on the first night … and in very belligerent terms, said to the members of this body, ‘You’re on trial. It will be treachery if you don’t do what the House managers say.’ That’s not right.”
House Democrats refused to allow Trump to call witnesses of his own or to cross-examine witnesses called by Democrats. They also didn’t bother going to court to force other witnesses to testify — they decided to simply rush the process to the Senate, then demand that the higher chamber do their bidding.
It didn’t work that way, and the Founding Fathers must be happy about that. Not only did Trump win, but the American people — and the Constitution — won bigly, too.