Jurisprudence

Hear No Evil

Mitch McConnell prepares to run the impeachment trial as a cover-up.

The senate majority leader speaking to the media on Capitol Hill on Tuesday.
Mitch McConnell on Capitol Hill on Tuesday.
Mark Wilson/Getty Images

Last week, Senate Majority Leader Mitch McConnell told Sean Hannity that he would seek to conduct any Senate impeachment trial of President Donald Trump according to the whims of the accused, promising to “take my cues from the president’s lawyers.”

On Tuesday, McConnell and Senate Republicans further signaled what that might entail. Specifically, McConnell promised that the Senate would abet the White House’s strategy of blocking the most important witnesses in the Ukraine bribery case from testifying. McConnell’s approach, if adopted by a majority of the Senate, would directly overturn the precedents set in the impeachment trials of Presidents Bill Clinton and Andrew Johnson. It would also be a direct reversal of McConnell’s own stance when he was a senator during Clinton’s impeachment. The move would amount to rigging Trump’s impeachment trial. Any Republican senator who goes along with that will be helping Trump cover up the full extent of his Ukraine misconduct.

During a speech on the Senate floor on Tuesday, McConnell rejected Senate Minority Leader Chuck Schumer’s call for testimony from four witnesses: John Bolton, the former national security adviser; acting White House chief of staff Mick Mulvaney; Robert Blair, a senior adviser to Mulvaney; and Michael Duffey, associate director for national security at the Office of Management and Budget. The four have direct knowledge about the central issue in the impeachment trial: why Trump held up nearly $400 million in security assistance to Ukraine while he pressured the country’s president to open investigations of his political rivals.

Bolton’s attorney has said publicly that his client has information relevant to the inquiry, but he has refused to testify. Mulvaney has publicly said that the Ukrainian security assistance was conditioned on opening an investigation of the Democratic National Committee, but walked that statement back shortly after making it. Along with the other two witnesses, they could rebut Republicans’ objections to the testimony already supplied by witnesses in the House’s impeachment inquiry, who said they had understood the security assistance was conditioned on Ukraine launching, or at least announcing, political investigations.

“If the House plows ahead, if this ends up here in the Senate, we certainly do not need jurors to start brainstorming witness lists for the prosecution and demanding to lock them in before we’ve even heard opening arguments,” McConnell said in response to Schumer’s request, which was made Sunday in a letter to the majority leader.

McConnell further described the notion of interviewing key witnesses as a “fishing expedition.” “This concept is dead wrong,” McConnell said. “The Senate is meant to act as judge and jury, to hear a trial, not to rerun the entire fact-finding investigation because angry partisans rushed sloppily through it.”

The accusation of haste was more of McConnell’s signature disingenuousness. Democrats chose to act on impeachment after the White House successfully blocked an enormous portion of the House’s fact-finding attempts by refusing to turn over a single relevant document and blocking testimony from several key witnesses. Rather than opt to take the White House to court—which would likely delay an inquiry into the president’s efforts to cheat in the 2020 election for months and stretch impeachment into the middle of that election—Democrats decided to write narrow articles of impeachment based off the testimony of the multiple witnesses they were able to get, and to vote on those articles Wednesday.

Instead of trying to consider a fuller body of evidence, McConnell promised rules that would likely prevent further witness testimony and possibly keep the Senate from seeing relevant documents as well.

So far, the public seems unconvinced by the message that ignorance would make for a better trial. A poll from the Washington Post released on Tuesday found enormous bipartisan public support for hearing from the witnesses, with 71 percent of Americans saying top officials should testify at a trial. That includes 64 percent of Republicans and 72 percent of independents.

It’s unclear whether or not McConnell has the votes necessary to set the impeachment rules in a way that would block the full evidence from coming to light, but key Republican senators indicated in recent days that they were not opposing their leader. Sens. Mitt Romney and Cory Gardner, who had been considered potential swing votes, met with McConnell on Tuesday to discuss strategy. According to Bloomberg News, Romney was reluctant to call for a full fact-finding:

Romney said he doesn’t object to McConnell approach of deciding on witnesses later in the process. Asked whether he’d back calling new witnesses, Romney said, “That’s something which I’ll give consideration to and when I have an answer I’ll pass it along.”

When the Ukraine scandal first broke, Romney was critical of the president, but he had less to say once impeachment began to look like it might really happen.

Sen. Susan Collins, another Republican who cultivates a reputation for independence without actually defying the president, also suggested in recent days that she would defer to McConnell on matters of impeachment trial procedure. The real procedural problem, Collins said on Monday, was that Schumer had sent the letter requesting the additional witness testimony.

“I was surprised that he didn’t first sit down with the Senate majority leader and discuss his proposals rather than doing a letter that he released to the press,” Collins said. “The more constructive way would have been for him to sit down with Sen. McConnell.”

Contrast that with Collins’ approach during the 1999 impeachment trial of Clinton. As the Washington Post’s Greg Sargent reported, Collins at the time demanded witness testimony. “I need witnesses and further evidence to guide me to the right destination, to get to the truth,” Collins said at the time.

That put the Maine senator on the same page as her colleague from Kentucky, McConnell. McConnell hammered Democrats at the time for efforts to prevent witnesses in the Monica Lewinsky scandal from rehashing testimony they had already given as part of independent counsel Kenneth Starr’s investigation, saying Democrats “wanted to deny the public the witnesses.”

Ultimately, on a 55–45 party-line vote in the middle of the trial, the Republican majority in the Senate voted to depose three witnesses.

‘‘We are doing what the Constitution requires, handling this case the way every other impeachment has been handled,’’ McConnell said at the time.

He was right about historical precedent. During the Senate impeachment trial of Andrew Johnson, four witnesses for the House impeachment managers were called to testify and one witness was called in the president’s defense. But this is the Trump era, which requires a different sort of consistency: If the president wants something, McConnell—apparently along with Romney, Collins, Gardner, and others—will make sure to give it to him.