Senate impeachment trial must include all important evidence

  In impeaching President Donald Trump, the U.S. House of Representatives uncovered overwhelming evidence that Trump extorted a foreign government to interfere in the 2020 election. The House did so even though Trump engaged in unprecedented obstruction of Congress by blocking critically important witnesses and documents, circumstances that underlay the House’s second impeachment article. Now, as the U.S. Senate begins the trial phase of impeachment proceedings, every senator must make a crucial decision: recklessly support the president’s obstruction or uphold their oaths under the U.S. Constitution.

  Senate Minority Leader Chuck Schumer (D-NY) made a reasonable request that the Senate obtain a limited set of additional firsthand evidence and testimony from persons directly involved in Trump’s scheme. Yet, Senate Majority Leader Mitch McConnell (R-KY) seems intent on beginning the Senate impeachment trial without committing to require witnesses and relevant documents that have been withheld by the Trump administration. It is very possible that at no time will majority party senators impose this requirement, and they have offered no substantive reason why this evidence would be unnecessary here.

  This is an untenable position. The Senate should see all available, relevant evidence rather than willfully avoid finding out information that President Trump’s supporters fear will damage him.

  If the Senate majority ultimately decides to prevent witnesses and documents, these senators will become willing obstructers who are part of the cover-up of Trump’s abuse of power. In the process, they will weaken their own power to conduct the oversight and investigations necessary to carry out their authorities under Article I of the Constitution.

The historical importance of evidence in impeachment proceedings and congressional investigations

  In December 2019, the House passed two articles of impeachment against Trump. The House concluded that Trump abused his power by pressuring the Ukrainian government to investigate his political rival. The House also determined that Trump then obstructed Congress with a baseless administration-wide directive to defy all subpoenas related to the impeachment inquiry after he refused to provide a single document and forbade key witnesses from testifying.

  Nonetheless, several witnesses decided to defy the Trump administration’s directive and testified in the House proceedings. And Trump released to the public summaries of two phone calls he conducted with Ukraine’s President Volodymyr Zelensky, which he claimed incorrectly were “perfect” despite the fact that they showed presidential malfeasance.

  Trump’s unprecedented refusal to turn over a shred of evidence in the House impeachment inquiry has taken on increased importance in recent weeks. Since the House’s passage of the impeachment articles, new developments have occurred that shed additional light on the Trump administration’s decision-making regarding Ukraine. Moreover, in the intervening weeks, former National Security Adviser John Bolton announced that he is willing to testify in the Senate trial. Senator Schumer has said that testimony is necessary from four crucial witnesses, including Bolton, and that the administration must produce all relevant documents.

  Historical precedent dictates that evidence must be produced at Trump’s Senate impeachment trial.

  First, both prior impeachment trials of U.S. presidents included evidence. During the 1868 trial of President Andrew Johnson, the Senate heard from a total of 41 witnesses, some for the prosecution and some for Johnson. Moreover, according to the House’s report in the Trump impeachment inquiry:

    There is no evidence that Johnson ever asserted any privilege to prevent disclosure of presidential conversations to the [House Judiciary] Committee, or failed to comply with any of the Committee’s requests.

  During the 1998 to 1999 impeachment proceedings involving President Bill Clinton, three witnesses testified in the trial phase via videotaped deposition. Just as importantly, multiple witnesses testified before a grand jury during the special counsel’s investigation, including Clinton, who voluntarily appeared. In stark contrast to Trump, Clinton gave the House Judiciary Committee a sworn affidavit responding to 81 committee questions. And 60,000 pages of documentary evidence were submitted with the special counsel’s report to the House Judiciary Committee, with 3,000 pages deemed most relevant. Submitted documents included materials from the White House and Department of Defense.

  Even President Richard Nixon—who resigned before being impeached—allowed senior aides to testify in the Senate’s Watergate investigation, and he produced a number of documents in response to the House’s investigatory subpoenas.

  According to a recent analysis by the nonpartisan Citizens for Responsibility and Ethics in Washington, in the other 13 nonpresidential, completed impeachment proceedings over the course of the nation’s history, every Senate trial included witnesses. And the House Judiciary Committee determined in the early 1970s that “not one” subject of the nearly 70 prior impeachment investigations “challenged the power of the committee … to compel the production of evidence it deemed necessary.”

  Numerous other examples exist where presidents have produced evidence to Congress in the course of the legislative branch’s investigations and oversight. These include, but certainly are not limited to:

  The Benghazi investigation during the Obama administration:

• Witnesses: President Barack Obama made many of his top aides available for interviews with the House Select Committee on Benghazi. Former Secretary of State Hillary Clinton testified for 11 hours. In all, 107 witnesses appeared—including 57 State Department officials, 24 Department of Defense officials, and 19 CIA officials.
• Documents: The Obama administration produced more than 75,000 pages of documents, including 1,450 pages of White House emails containing communications of senior officials on the National Security Council.

  The Operation Fast and Furious investigation during the Obama administration:

• Witnesses: Attorney General Eric Holder testified at least nine times before Congress.
• Documents: The U.S. Department of Justice produced more than 7,000 documents to Congress. However, the administration did litigate a limited number of document subpoenas in court.

  The 9/11 Commission (established as a congressional body) during the George W. Bush administration:

• Witnesses: Multiple witnesses gave interviews to the commission, including President George W. Bush and Vice President Dick Cheney.
• Documents: The commission used its subpoena authority three times, compelling evidence from the Department of Defense, the Federal Aviation Administration, and the City of New York.

  The Iran Contra inquiry during the Reagan administration:

• Witnesses: Two top national security aides to President Ronald Reagan—Oliver North and John Poindexter—testified before specially created Senate and House committees.
• Documents: Among other documents, Reagan produced excerpts of his personal diaries to Congress.

  Even though Trump and his administration have blocked evidence from the historic impeachment inquiry, they have chosen to release documents in other circumstances.

  For example, Trump took the unprecedented step of authorizing the release of applications for warrants related to campaign aide Carter Page issued under the Foreign Intelligence Surveillance Act (FISA). This is the first time that these types of classified documents had ever been released. Trump provided these documents to the then-Republican-controlled House, which was seeking to discredit the investigation into the Trump campaign’s connections to Russian interference in the 2016 election.

  The crux of the matter is that Americans deserve to know the facts in the Senate’s impeachment trial. In fact, 70 percent of Americans say Trump should allow his top aides to testify in the Senate trial, according to a recent Washington Post/ABC poll.

  Sen. Lindsey Graham (R-SC), a close ally of Trump, aptly addressed the issue of impeachment evidence in 1999, when he argued “[i]f there is any doubt, let’s call witnesses and let’s develop them fully, and leave no doubt on the table, and make sure that history will judge us well.”

Conclusion

  President Trump claimed that he was unfairly shut out of the House impeachment process, but he now may be thwarting evidence from being introduced in his Senate trial. History will remember whether Senate Republicans blindly sided with Trump and abdicated their responsibility to be fair arbiters. The witnesses and documents withheld by Trump must be part of the Senate’s impeachment trial—just as similar evidence has been presented throughout the nation’s history. Otherwise, the president will enjoy a perch above the law, and the trial’s outcome will be a sham.

  About the author: Michael Sozan, a former chief of staff in the U.S. Senate, is a senior fellow on the democracy and government reform team at the Center for American Progress.

  This article was published by the Center for American Progress.