The Worst Trade Deal

Swapping impeachment witnesses with Team Trump won’t advance the prosecution’s case.

Rep. Sylvia Garcia stands at the Senate podium.
WASHINGTON, DC - JANUARY 23: Rep. Sylvia Garcia (D-TX) speaks during impeachment proceedings against U.S. President Donald Trump in the Senate at the U.S. Capitol on January 23, 2020 in Washington, DC. (Photo by Senate Television via Getty Images) Handout/Getty Images

Thursday’s session of President Donald Trump’s impeachment trial was about as engaging as eight more hours of C-SPAN remixes could possibly be. While Republican senators after the first day of presentations on Wednesday were quick to complain that the trial they wanted—without witnesses or new evidence—was “boring,” even some of the president’s staunchest defenders have begun to acknowledge that Rep. Adam Schiff and his team of impeachment managers have crafted an at-times compelling narrative using video testimony, public interviews, and key documents.

After Wednesday’s presentation, Sen. Lindsey Graham—one of Trump’s fiercest advocates in the Senate and a House manager in the last impeachment trial, of Bill Clinton—went up to Schiff to applaud him for a job well done. “He’s well spoken, he did a good job of creating a tapestry, taking bits and pieces of evidence and emails and giving a rhetorical flourish, making an email come alive, sometimes effectively, sometimes a little over the top,” Graham told reporters on Thursday morning. “But quite frankly I think they did a good job of taking bits and pieces of the evidence and creating a quilt out of it.”

Thursday’s expanse of quilt included footage of Graham’s own description of impeachable offenses during the 1999 impeachment trial, to counter Trump’s defense that he can’t have committed a “high crime” unless he violated a federal criminal statute. “What’s a high crime? How about an important person hurts somebody of low means? It’s not very scholarly, but I think it’s the truth,” said the much younger version of Graham in the clip played for the Senate by Rep. Jerry Nadler. “I think that’s what they meant by high crimes. It’s just when you start using your office and acting in a way that hurts people, you’ve committed a high crime.” (Graham reportedly was the only senator absent from the chamber during this portion of the presentation.)

Nadler also pre-butted Trump attorney Alan Dershowitz’s planned argument that Trump can’t be removed from office for abuse of power because that’s not a federal crime, showing a clip of Dershowitz opining on CNN during the Clinton impeachment the exact opposite of what he’s expected to argue when he speaks for the president after the House managers finish their case. “It certainly doesn’t have to be a crime,” Dershowitz said at the time. “If you have somebody who completely corrupts the office of president, and who abuses trust, and who poses great danger to our liberty, you don’t need a technical crime.” Sounds familiar?

Rep. Sylvia Garcia continued this momentum with a presentation laying out all of the holes in the president’s claim that he asked Ukrainian President Volodymyr Zelensky to investigate Joe and Hunter Biden because he was sincerely trying to fight corruption. As Garcia noted, the request for the investigations was never made through official law enforcement channels.
“The Department of Justice even publicly confirmed that they were never asked to talk to Ukraine about these investigations, never,” Garcia pointed out.

As for Joe Biden’s effort to get Ukraine to fire the allegedly corrupt prosecutor Viktor Shokin—an official, public act as vice president, which Rudy Giuliani and the president’s other defenders claim was equivalent to Trump’s secret and self-interested meddling with Ukraine—Garcia listed an extensive group of Republican Senators who had written a letter to the Ukrainian parliament in 2016 asking for precisely the same thing Biden had sought. Critically, she noted that the president never took an interest in Biden’s alleged “corruption” until the former vice president had announced his presidential campaign and poll after poll showed him handily defeating Trump.

“If President Trump was so concerned about this alleged corruption, why didn’t he push Ukraine to investigate when he entered office in 2017? Or in 2018 after Biden gave public remarks about how he pressured Ukraine to remove Shokin?” Garcia noted. “Why did President Trump instead wait until former vice president Biden was campaigning for the Democratic nomination?”

Finally, Garcia showed footage of Trump’s own FBI Director Christopher Wray just last month repudiating Trump’s other request of Zelensky, that he investigate charges that it was Ukraine and not Russia that interfered in the 2016 election. “We at the FBI have no information that would indicate that Ukraine tried to interfere in the 2016 presidential election,” Wray said.

Schiff himself cleanly explained how those who are defending Trump’s motives have offered no explanation for why this supposed anticorruption campaign was carried out surreptitiously. Why, for instance, did the initial readout of the July 25 call in which Trump made his requests of Zelensky, make no mention whatsoever of Trump’s requests for Zelensky to investigate Biden and the Democratic National Committee? Why, as well, did Trump officials place the rough transcript of that call on a secure server, normally reserved for top secrets such as covert actions?

“Why were they trying to hide what the president did?” Schiff wondered. “If this was U.S. policy, if they were proud of it, if they were really interested in corruption, […] if this had nothing to do with the president’s re-election campaign, if Biden was merely an interesting coincidence, why did they bury the record?”

This served to rebut arguments from Republican senators like Oklahoma’s James Lankford, who claimed on Thursday that Trump’s actions must have been fine because after they were uncovered, he began to publicly call for Ukraine to investigate Biden. “I don’t see an issue at this point, going through that and it just sounds like the president had a normal conversation that is no different than what he said in public places,” Lankford said.

The quality of the presentation did not, however, make it any more likely that Trump will be convicted and removed from office. What about the impeachment managers’ intermediate goal of using the trial to obtain previously blockaded evidence, including testimony from top presidential aides and the release of documents the White House has refused to supply to Congress? That is supposedly still an open question, with the Democrats seeking to put pressure on vulnerable swing-state Republicans like Sen. Susan Collins of Maine to join them in voting for new witnesses and documents.

So far, though, the Republican majority seems to be positioned to keep the Senate from hearing anything it doesn’t want to hear. Last week, Sen. Ted Cruz of Texas floated the possibility that Republicans would attempt to “trade” witnesses—that is, to offer to allow national security advisor John Bolton to testify in exchange for the testimony of, say, Hunter Biden, whose position on the board of the Ukrainian gas company Burisma is central to president’s completely unsubstantiated charges of corruption against Joe Biden.

On Wednesday, the Washington Post reported that several Senate Democrats were privately discussing the possibility of such “trades.” And on Thursday, Senate Republicans were adamant that if the House impeachment managers witnesses are called, they will force consideration of Trump’s own desired witnesses, particularly the Bidens. “I will just say for my part, if we’re going to call witnesses, we absolutely must call Hunter Biden, and we probably need to call Joe Biden,” Sen. Josh Hawley of Missouri told reporters.

Aside from the fact that “witness reciprocity” isn’t a thing in actual courtrooms, there’s the obvious objection that certain witnesses—such as Bolton and acting White House chief of staff Mick Mulvaney—have direct knowledge of whether Trump abused his power, while the Bidens do not. And Democratic Senate leadership is also opposing the “trade” proposal on the grounds that even if they are allowed to call the key witnesses to the Ukraine plot, those witnesses could claim executive privilege or insist on keeping their testimony classified, preventing a public airing of what they know.

Indeed, on Monday the Washington Post reported that the White House and Senate leadership were discussing the possibility of making Bolton testify in a classified setting if Democrats can muster the four Republican votes they need to demand his testimony. If Bolton, Mulvaney, and other key witnesses were testify behind closed doors, while the president’s team grills Joe and Hunter Biden on camera in the Senate, it would be a debacle for the impeachers.

“That is a trap that is set and Democrats are not falling for it,” a Senate Democratic aide told me of this possibility.

Still, Republicans are clearly concerned that there’s still a chance that a breakaway group of four Republicans might vote for a reasonable witness list after the House’s compelling case. On Thursday evening, CNN reported that Senate Republicans are warning that trying to subpoena White House officials or documents will only lead to a prolonged legal battle over executive privilege.

“The House made a decision that they didn’t want to slow things down by having to go through the courts,” Sen. Lisa Murkowski, who is considered one of the very few swing votes on the question of witnesses, told CNN of the executive privilege issue. “And yet now they’re basically saying you guys gotta go through the courts. We didn’t, but we need you to.”

Even with a witness trade agreement off the table, the president’s attorneys are certain to demand to hear from Trump’s preferred witnesses if his own administration officials are called. “If the other side were to get witnesses, we would have a series of witnesses,” the president’s attorney Jay Sekulow said. This would place any Republicans who vote for witnesses in the impossible position of either voting for Democratic witnesses and opposing Trump’s, or agreeing to approve the Biden circus.

The only workable solution to this dilemma would be one that Democrats tried to offer at the beginning of the trial. That would be to have the presiding officer, Chief Justice John Roberts, make all decisions about which witnesses and documents are relevant. This was the final amendment, proposed by Sen. Chris Van Hollen of Maryland, that the Senate rejected in its marathon of rules votes on Tuesday, but it’s difficult to understand why it shouldn’t be allowed to come up again before the trial is over.

The historical precedent of the first impeachment of President Andrew Johnson is that the chief justice as presiding officer was not treated as a mere figurehead, as he has been in this impeachment trial. Giving all the trial’s biggest decisions—from witness and document relevancy, to whether executive privilege is being cited properly or abused—to the man who claims he just calls balls and strikes is the only way to conduct the trial that could allow both sides to claim it has occurred with a modicum of fairness.