That would be such a ridiculous dereliction of duty, such an obvious sign they are toadies of the president, that I sort of hope they do it. The American people would see the House bring forth 17 witnesses, more than 100 hours of testimony while the Senate has, well, nothing. It’s not clear frankly that you can have a “trial” without witnesses or evidence. The suggestion raises several critical points.
First, it could not be clearer that all the bravado about calling all kinds of witnesses from Joe Biden to Rep. Adam B. Schiff (D-Calif.) was utter nonsense. These witnesses, if anything, would make matters worse for the president by exposing that his CrowdStrike conspiracy was total bunk and that there was no basis that Biden did anything wrong. Matt Miller, former Justice Department spokesman, tells me, “This looks like a sign of weakness, not strength from [Senate Majority Leader Mitch] McConnell. For all of Trump’s bluster, this seems to indicate that Senate Republicans believe a fair Senate trial hurts their political prospects.”
Second, it would be the final capstone to an extraordinary process in which Republicans refuse to grapple with the facts. They demand we read the rough transcript of the July 25 call, but that proves the case against Trump: He mentioned the Bidens (not “corruption”), told the Ukrainians to talk to his bag man Rudolph W. Giuliani and pressured, not merely invited, foreign interference in our election (“a favor though”).
Former prosecutor Joyce White Vance tells me, “Democrats likely expected this. I think they’re now well served by the narrow, very specific resolution on impeachment.” She explains, “Both of the articles rely on facts that are uncontested based upon review of the transcripts of earlier witness testimony. The ball is in the Republicans’ court; they can either condemn Trump’s misconduct or they can condone it.”
Third, this stunt makes the article of impeachment on obstruction of Congress all the more compelling. The Senate is saying none of these witnesses directly implicates Trump, that is, there is no substitute for the direct witnesses (e.g., acting chief of staff Mick Mulvaney, former national security adviser John Bolton) Trump is preventing from appearing. Frankly, it makes the Senate complicit in obstruction.
Constitutional scholar Laurence Tribe, who has provided advice to House Democrats, tells me, “In a manner of speaking, perhaps this witness-free drama would be a ‘trial,’ but it wouldn’t be a trial as any ordinary speaker of English would use that word.” He adds, “True, under Nixon v. U.S., the Supreme Court wouldn’t interfere with the Senate’s determination, in its ‘sole power to try’ impeachments, that such an evidence-free proceeding constitutes a ‘trial.’ But reasonable people would surely know better.” He concludes, “The undeniable fact that the Supreme Court would let the Senate get away with such a fake ‘trial’ does not mean that it would actually comply with the genuine sense and basic purpose of the Constitution.”
Fourth, Trump is saying he cannot be prosecuted while in office under the Justice Department’s memo, but neither can he be impeached because he can withhold the most compelling evidence. If ever there were evidence that he has his eye on absolute, unchecked power, this would be it.
Fifth, perhaps, because the Senate Republicans have no facts or interest in the facts, Democrats could invite Republicans simply to stipulate to the evidence as presented in the House Intelligence Committee report. In a court, a judge would instruct the parties to agree on as many facts as possible. If the Republicans have no facts to dispute the Democrats’, they should formally say so in a writing.
Sixth, the Democratic senators running for president would love this; they could be back on the campaign trail in no time. Democratic Senate candidates challenging incumbent Senate Republicans would have the perfect argument that the latter are incapable of carrying out their oaths. Linking the Senate Republicans to Trump’s actions, which 70 percent or so of the public find wrong or illegal, would be a dream for Democrats.
Sixth, this stance might revive a suggestion (not representative of his current position, after the Ukraine plot was uncovered, to pursue impeachment and encourage a real trial on the merits) Tribe and others once made:
The House, assuming an impeachment inquiry leads to a conclusion of Trump’s guilt, could choose between presenting articles of impeachment even to a Senate pre-committed to burying them and dispensing with impeachment as such while embodying its conclusions of criminality or other grave wrongdoing in a condemnatory “Sense of the House” resolution far stronger than a mere censure. The resolution, expressly and formally proclaiming the president impeachable but declining to play the Senate’s corrupt game, is one that even a president accustomed to treating everything as a victory would be hard-pressed to characterize as a vindication.
This is an even more compelling suggestion if the Senate actually announces in advance that it won’t conduct a real trial. Why should the House play into the charade by sending over articles of impeachment after a House vote? (McConnell, by the way, for all the reasons stated herein might decide a real trial is necessary, regardless of how badly it makes Trump look.)
In sum, it would be grossly irresponsible and cowardly of the Senate majority to duck its constitutional obligations by refusing to hear facts before a vote, but it follows that nothing would more vividly convey the irresponsibility and cowardice of Republican senators. So I say go for it!