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No, McConnell — Biased Jurors and No Witnesses Do Not Make for a Fair Trial

The Senate majority must provide basic guarantees of fairness in the trial on the articles of impeachment against Trump.

Senate Majority Leader Mitch McConnell (R-KY) listens to questions from the media during a press conference following weekly policy luncheons at the U.S. Capitol on December 10, 2019, in Washington, D.C.

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In my decades as a criminal defense attorney, I have never seen a trial where the jurors admit they aren’t impartial, coordinate the trial process with the defendant and then, as promised, find the defendant not guilty. And yet, that is exactly what Senate Majority Leader Mitch McConnell aims to do.

Negating any semblance of conducting a fair trial, McConnell has brazenly declared his intention to violate the senators’ oath of impartiality and deny the right to call witnesses to testify at the Senate trial on the articles of impeachment.

It’s no wonder that the leaders of the House of Representatives are waiting to transmit the articles to the Senate until they receive assurances that the senators will hold a fair trial. Now that the House has voted to impeach Donald Trump for abuse of power and obstruction of Congress, the decision about whether to convict Trump and remove him from office will be made by the Senate. But that trial will be a farce and a sham if the Senate majority refuses to provide basic guarantees of fairness.

McConnell Rejects Schumer’s Proposed Witnesses

Senate Minority Leader Chuck Schumer and McConnell are at loggerheads over how to proceed with the trial. Schumer sent a proposal for ground rules, modeled on those used during the Clinton impeachment, to McConnell. Schumer requested that the trial begin on January 7 and that each side have a time limit to present its case. He asked that four witnesses with direct knowledge of the facts be called to testify for a maximum of four hours each. They are Acting White House Chief of Staff Mick Mulvaney; former National Security Adviser John Bolton; Mulvaney’s senior adviser Rob Blair; and Michael Duffy, Associate Director of National Security at the Office of Management and Budget. All four refused to appear in response to subpoenas from the House during its impeachment inquiry.

McConnell rejected Schumer’s proposed witnesses, stating that it is the House’s “duty to investigate” and the Senate will not volunteer for a “fishing expedition.”

Speaking on the Senate floor the day after the House passed the articles of impeachment, McConnell referred to the House impeachment inquiry a “slapdash process,” calling it “the most rushed, least thorough impeachment in modern history.” He accused Speaker of the House Nancy Pelosi of wishing that “the Senate should supplement [House Intelligence Committee Chairman Adam] Schiff’s sloppy work.”

But Trump took actions that denied the House committees valuable evidence. In an unprecedented move, Trump ordered all executive branch employees to defy committee subpoenas and refuse to testify in the impeachment inquiry. He also refused to turn over any subpoenaed documents, another contrast with prior impeachments. Trump asserted that subpoenaed witnesses who declined to testify would receive “absolute immunity” from criminal or civil prosecution. That doctrine is a creation of the Department of Justice’s Office of Legal Counsel. No court, statute or constitution has ever recognized it.

Nine witnesses followed Trump’s order and refused to testify. Nevertheless, 17 witnesses provided depositions and 12 witnesses testified in the House proceedings. They were members of the Trump administration and they provided overwhelming evidence of Trump’s impeachable conduct.

Trump Obstructed Congress by Forbidding Witnesses to Testify

The article of obstruction of Congress was based on Trump’s blanket refusal to provide documents and allow subpoenaed witnesses to testify before the House of Representatives, to whom the Constitution grants “the sole power of impeachment.”

If witnesses are not allowed to testify at the Senate trial, it “would be the first impeachment trial in history that heard no witnesses,” Schumer stated on the Senate floor in response to McConnell’s remarks. The Senate has never “prevented House managers from fairly prosecuting their case,” Schumer added. If, as McConnell insisted, the House’s case for impeachment is so weak, why is he “so afraid of relevant witnesses and documents?”, Schumer asked. All four proposed witnesses are top Trump officials and Schumer said he doesn’t even know if their testimony would incriminate or exculpate Trump.

McConnell favors a pro forma trial with no witnesses that leads to a rapid acquittal of Trump. On Fox News, McConnell told Sean Hannity there was “zero chance” Trump would be removed from office. McConnell pledged “total coordination” with the White House and Trump’s defense attorneys. The senators, who will sit as jurors at the trial, must take an oath “to do impartial justice according to the Constitution and laws.” But McConnell didn’t even pretend to be impartial, declaring, “I’m not an impartial juror … I’m not impartial about this at all.”

What does a fair trial require?

To have a fair trial, both sides must be allowed to subpoena witnesses and documents. The House managers, as well as Trump, should be permitted to call witnesses and present documentary evidence. McConnell seeks to violate that right.

Harvard law professor Laurence Tribe, who has advised the House Judiciary Committee during the impeachment inquiry, thinks the House can leverage its power over the timing of the transmittal of the articles to the Senate. “It would be justified to withhold going forward with a Senate trial,” he wrote in the Washington Post. “Under the current circumstances, such a proceeding would fail to render a meaningful verdict of acquittal. It would also fail to inform the public, which has the right to know the truth about the conduct of its president.” Tribe tweeted, “Schumer’s proposal to McConnell. If he rejects these reasonable ground rules & insists on a non-trial, the House should consider treating that as a breach of the Senate’s oath & withholding the Articles until the Senate reconsiders.“

After the House voted for impeachment, Pelosi told reporters she would hold the articles back until it became clear there would be a fair trial in the Senate. “We will make our decision as to when we are going to send it when we see what they are doing on the Senate side,” she said. “So far, we have not seen anything that looks fair to us.”

The rules adopted by the House require a separate vote to give Pelosi the green light to appoint House managers and send the articles to the Senate. A sizable number of Democratic House members support a delay in transmitting the articles to the Senate while they determine whether the Senate trial will be fair.

Is Transmittal of Articles Necessary to Complete Impeachment Process?

Some Democrats argue that the House should never send the articles to the Senate to deny Trump an acquittal. But Noah Feldman, a Harvard law professor who testified at the House Judiciary Committee hearing, without citing any authority, maintains that impeachment is not complete until the House transmits the articles to the Senate for trial. “‘Impeachment’ under the Constitution means the House sending its approved articles to the Senate, with House managers standing up in the Senate and saying the president is impeached,” he wrote in Bloomberg. “If the House does not communicate its impeachment to the Senate, it hasn’t actually impeached the president,” Feldman asserted. “If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all.”

Georgetown law professor Marty Lederman disagrees with Feldman. He asserts that by adopting House Resolution 755, the House effectively impeached Trump. That resolution says, “That Donald John Trump, President of the United States, is impeached for high crimes and misdemeanors.” Although the House adopted each article separately, House rules provide that, “the adoption of the resolution [755], as amended, shall be divided between the two articles.” Moreover, House impeachment rules state, “The respondent in an impeachment proceeding is impeached by the adoption of the House of articles of impeachment.” Furthermore, Pelosi declared at a news conference the day after the impeachment that the articles adopted by the House make Trump’s high crimes and misdemeanors “an established fact,” not simply probable cause, that Trump committed abuse of power and obstruction of Congress.

Regardless, however, Feldman admits that the Constitution does not prohibit a delay by the House in sending the articles to the Senate. Thus even if one were to accept Feldman’s argument, the eventual transmittal of the articles will complete the impeachment of Trump.

After a brief meeting, McConnell and Schumer were unable to agree on a process for the trial. The Senate will recess for the holiday break and return January 3 but won’t make decisions about the trial rules until January 6.

Although it requires 67 senators to convict and remove a president, procedural decisions such as establishing trial rules require only 51. Since there are 53 Republicans in the Senate, three could defect and vote for rules acceptable to Democrats. Those most likely to buck their GOP colleagues are Senators Susan Collins (Maine), Lisa Murkowski (Alaska) and Mitt Romney (Utah).

Meanwhile, Trump remains an impeached president who cannot yet brag that he’s been vindicated by the Senate.

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