Note: this was originally published in The Atlantic, and was written by Checks & Balances member Paul Rosenzweig.
And the Senate needs to call key witnesses who never testified before the House.
Senate Majority Leader Mitch McConnell is in the midst of discussions about the shape and scope of the forthcoming impeachment trial of President Donald Trump. His most recent public offer is to adopt the same rules for Trump’s impeachment as those used in President Bill Clinton’s. He says he has the votes to impose that process on the Senate, even if Democratic senators object. On the surface, that seems a perfectly plausible proposal—after all, what is sauce for the goose might be thought sauce for the gander. Rules that were appropriate for Clinton should be appropriate for Trump.
But while it has a patina of reasonableness, the offer is little more than posturing.
Let’s begin with the Clinton impeachment (an investigation in which I participated as senior counsel to Independent Counsel Ken Starr). Clinton’s impeachment derived directly from a criminal investigation into perjury and obstruction of justice charges. That investigation took nine months. It was conducted by Starr along with more than two dozen lawyers and investigators, who interviewed nearly 100 witnesses and used the compulsory power of the grand jury to secure hundreds of hours of live testimony and tens of thousands of relevant documents. President Clinton resisted the investigation through the assertion of various privileges, but virtually all of those assertions were rejected by the courts, and the witnesses were required to testify truthfully. In the end, even Clinton himself testified and submitted a blood sample for DNA testing.
So when the referral for impeachment was sent to the House of Representatives, it was accompanied by a detailed record of what had transpired, comprising thousands and thousands of pages of documents and grand-jury transcripts. The facts were so little in doubt that the majority-Republican Judiciary Committee called only a single witness—Independent Counsel Starr—to summarize the case.
When the matter moved to the Senate for trial, the House managers sought authority to call witnesses, but not because they needed more factual development. Rather, their argument was that the Senate, as a trier of fact, had to look the witnesses in the eye and assess their credibility. The senators did not need to ask, “What will Monica Lewinsky say?” because the record of what she would say was clear. Instead, the House argued, the Senate needed to ask, “Is Lewinsky telling the truth?” and to do that, it needed to hear from her directly.
But the Senate managed to dodge the question of credibility. After hearing opening statements from the House managers (who are essentially prosecutors) and from Clinton’s defenders, it rejected the House request to call 10 witnesses. After some negotiations, the Senate authorized the deposition of three witnesses, who were interviewed off the Senate floor with only a few senators present. Although the Senate allowed the House to call these witnesses, it appears to have decided the matter without assessing the witnesses’ credibility directly. The dominant view in the Senate seems to have been that even if everything Starr and the House alleged was true and even if the witnesses were fully credible, the offenses alleged (lying under oath about a private sexual matter) did not rise to the level of “high crimes and misdemeanors” worthy of impeachment. Whether witnesses were being truthful was almost beside the point.
If, last year, the House had chosen to act on impeachment in response to the report from Special Counsel Robert Mueller, one might reasonably think that the two impeachments were procedurally related. Both would have been grounded on an extensive pre-impeachment criminal investigation. But the House grounded its impeachment not in Mueller’s report but in the Ukrainian bribery scheme, and reached its decision to impeach Trump through a radically different process than was used for Clinton.
Continue reading at The Atlantic.