01.31.20

Statement On Impeachment Trial Witnesses

The question before us is incredibly serious, but it is also more than a little absurd. We are sitting as a court, exercising the sole power to try impeachments, entrusted to us by the Framers. The President of the United States has been charged with high crimes – a constitutional charge of abuse of power that includes in its text each of the elements of criminal bribery.  The President’s lawyers have complained all week about the absence of sworn testimony from officials with first-hand knowledge of the President’s actions and intent. They claim not to know when the President froze the aid.  They falsely claim there is no evidence the President withheld the aid in exchange for his political errand – announcing an investigation into his political rival.  And yet whenever the President’s counsels have pled ignorance or claimed a lack of evidence, they ask not that we pursue the truth; they ask instead that we look away.

The Senate simply cannot look away. In the 220 years this body has served as a constitutional court of impeachment, we have never refused to look at critical evidence sitting in front of us. We have never raced to a pre-ordained verdict while deliberately avoiding the truth or evaluating plainly critical evidence.

And when I say “sitting in front of us,” I mean that literally.  Just this morning, we learned that Pat Cipollone, lead counsel for the President, along with Rudy Giuliani and Mick Mulvaney, was part of a meeting where President Trump directed John Bolton to “ensure [President] Zelensky would meet with Mr. Giuliani.”  A meeting with the President’s personal lawyer is not subject to executive privilege; and a meeting with Bolton and Mulvaney is not subject to attorney-client privilege.  And this afternoon we received a proffer from Lev Parnas’s attorney, claiming that Parnas could provide us with testimony implicating several cabinet officials and members of Congress in the President’s scheme.  I cannot say whether that is credible, but shouldn’t he at least be heard and cross-examined? The Senate cannot turn a blind eye to such directly relevant evidence.

This slipshod process reminds me of another trial. That was the trial of Alice in Wonderland.  In that trial, the accusation was read, and the King immediately said to the jury, “Consider your verdict.” But even in that case it was acknowledged that “There’s a great deal to come before that,” and the first witness was called. With apologies to Lewis Carroll, surely the United States Senate can at least match the rigorous criminal procedure of Wonderland?

The oath that each of us swore just two weeks ago requires that we do “impartial justice.” Reasonable people can disagree about what that means, but every single time this body has sat as a court – every single time – it has heard from witnesses and weighed sworn testimony. We have never been denied the opportunity to hear from critical witnesses with firsthand information.  During the Johnson trial, this court heard live testimony from 41 witnesses, including private counsel for the President and a cabinet secretary. During the Clinton trial, three witnesses were deposed and we considered the grand jury testimony of the President’s chief of staff, deputy chief of staff, and White House Counsel – plus the grand jury testimony of the President himself. “Impartial justice” cannot mean burying our collective heads in the sand, and preventing relevant, probative testimony from being taken.

Briefly, I also want to address the arguments made against calling witnesses. The President has said that “Witnesses are up to the House, not up to the Senate.” But the Senate has never been, and should not be now, limited to the House record. The Senate’s constitutional obligation to try impeachments stands independent of the House’s obligation. The Constitution does not allow the House’s action or inaction to limit the evidence and testimony the Senate can and must consider. The last time we sat as a court we heard from 26 witnesses in total, including 17 who had not testified before the House. Seventeen.

Some have also said that calling witnesses like John Bolton would leave us tangled up in an endless court battle over executive privilege. Not so. The Senate alone has the “sole Power to try all Impeachments,” and the Chief Justice reminded us just a few years ago in Zivotofsky v. Clinton that Article III courts cannot hear cases “where there is ‘a textually demonstrable constitutional commitment of the issue to a coordinate political department.’” And in Walter Nixon v. United States, the Supreme Court expressly ruled out “[j]udicial involvement in impeachment proceedings, even if only for purposes of judicial review.”

Moreover, and more simply, executive privilege cannot prevent testimony from a private citizen like Bolton who is willing to testify. And, in any event, the President has almost certainly waived any claim to privilege by endlessly tweeting and talking to the media about his conversations with Bolton. The Senate is not helpless.  We are the only court with jurisdiction. We can and should resolve these questions.

Let us conduct this trial with the seriousness it deserves – consistent with Senate precedent, the overwhelming expectations of the American people, and how every other trial across the country is conducted every single day.

As Senators, we are here to debate and vote on difficult questions. I understand this may be a difficult question politically – but it is nowhere close to a difficult question under the law or common sense.  I do not believe for one second that any of us sought public office to become an accomplice to what can only be described as a cover-up.  As the Chief Justice has reminded us, we have the privilege of serving in the world’s greatest deliberative body. So let’s actually deliberate.

But if we adopt the rule – rejected even in Wonderland – of verdict first, witnesses later, be assured those witnesses will eventually follow. Whether through FOIA, journalism, or book releases, the American people will learn the truth, likely sooner rather than later.  Maybe even over the upcoming weekend.  What will they think of a Senate that went to such extraordinary lengths – ignoring 220 years of precedent, any notions of fairness or respect for facts, and indeed ignoring our duties to the Constitution itself – to keep the truth buried?

A vote to preclude witnesses will embolden this President to further demean the Congress, this Senate, and the balance of power so carefully established by the Framers in the Constitution.  It will ratify the President’s shell game of telling the House it should sue to enforce its subpoenas, and then telling courts that the House has no standing to do so.  Just today, after a week of his counsel arguing that the President cannot be impeached for failing to respond to House subpoenas, the Justice Department argued in court that the House can use its impeachment power to enforce its subpoenas.  It is up to all 100 of us to put a stop to this nonsense.

I have served in this body for 45 years. It is not often we face votes like this – votes that will leave a significant mark on history, and will shape our constitutional ability to serve as a check against presidents for generations to come. I pray the Senate is worthy of this responsibility, and of this moment.  I fear the repercussions if it is not.

I will vote to hear from witnesses. With deep respect, I ask my fellow senators to do the same. 

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