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Opinion It’s time to ditch the second impeachment article to bring in witnesses

Rep. Adam B. Schiff (D-Calif.) on Capitol Hill on Nov. 21, 2019. (Bill O'Leary/TWP)

Jonathan Turley is the chair of Public Interest Law at George Washington University and served as the last lead counsel in an impeachment trial before the Senate in defense of Judge Thomas Porteous. He also serves as legal analyst for both CBS and BBC.

John Kenneth Galbraith once described politics as “the art of choosing between the disastrous and the unpalatable.” Those words could not more aptly describe the choice now facing the House managers who lost this case before it began — not because of the Republican majority but because of the House managers' own historic blunder in rushing the impeachment forward on an incomplete record. They now must make a choice between the disastrous in simply staying the course to certain acquittal or the unpalatable in admitting the blunder and offering a compromise.

Thus far, the suggestions of a compromise have centered on an unlikely horse trade of a witness such as former national security adviser John Bolton for Hunter Biden. However, such a compromise does not address the separate institutional concern of some senators, likely including the four swing senators. For them, the threshold issue is not the inclusion of witnesses in the Senate but the failure of the House to take their testimony.

The latest Trump impeachment trial updates

This week, a key Republican senator, Lisa Murkowski (Alaska), indicated she was not inclined to call witnesses whom the House failed to pursue in its rushed vote.

Watch constitutional law professor Jonathan Turley argue why the House of Representatives pursued the right impeachment articles but the wrong process. (Video: The Washington Post, Photo: Mandel Ngan / AFP/The Washington Post)

The decision sits now with the House managers. They can either just grab face time on national television or they can move to deal with their blunder and try to resuscitate this case. They might be able to do so but they will have to offer more than a witness swap.

A better compromise might be found in sacrificing one of the two articles themselves. To put it simply, it may be time to dismiss Article II. The obstruction-of-Congress article was dead on arrival, but holding a vote to dismiss the article anyway would allow the Senate to go on the record in opposition to the House handling of this impeachment.

It just might be enough to open a path for witnesses on Article I and the abuse-of-power charge.

The House destroyed any chance for an obstruction article when it made an impeachment by Christmas its overriding priority. The short period set by the House did not allow the White House to challenge a subpoena and effectively made the seeking of judicial review a “high crime and misdemeanor.” When Congress demands documents, presidents often have objections based on the inherent immunities or privileges of their office. Both Richard M. Nixon and Bill Clinton were able not only to seek judicial review but also to take their appeals all the way to the Supreme Court before facing impeachment. Nixon soon resigned after losing that case.

There are valid presidential claims of privilege to be raised if Congress seeks to hear about communications between the president and Bolton.

If the House had simply gone to court to enforce a subpoena, it would have forced a review of such privilege questions. Even before the impeachment vote, Bolton indicated his interest in testifying but it would require a subpoena. The House, however, refused to issue such a subpoena or take other reasonable steps to secure evidence because it feared such a move would push the court proceedings into late spring or beyond. Magnifying this mistake was the decision of the House to withdraw the subpoena issued for Charles Kupperman, Bolton’s deputy. Kupperman indicated he might testify but went to court for review of the subpoena. Before the court could rule, the House pulled the subpoena. Judge Richard Leon seemed nonplussed in dismissing Kupperman’s case, stating, “the House clearly has no intention of pursuing” the witness.

It is time for Democrats to acknowledge the blunder in the rushed vote.

In hockey, you lose a player in a power play. In football, penalties mean you lose downs or yards or possession. The Senate could similarly cry foul and dismiss Article II while moving forward on Article I with limited witnesses. While there are valid arguments for leaving the House with the incomplete record it handed over to the Senate, any House failure does not relieve the Senate of its own obligations. The Senate could allow a limited number of witnesses while stipulating a fixed schedule for testimony, including any litigation over privilege arguments that should have been addressed in the House investigation.

What’s next in the impeachment process

The House managers must now decide if they are trying to score political points or win a case. If it is the latter, they need to deal with their own failure honestly and decisively. Neither side will be delighted with such a compromise, but it would allow the Senate to protect its institutional interests while allowing the House to prove the primary allegations in the case.

In other words, it may be time to pick the unpalatable over the disastrous for both houses. It is time to shoot Article II and allow witnesses.

President Trump's impeachment defense could create a dangerous precedent, says constitutional law professor Jonathan Turley. (Video: The Washington Post, Photo: Jacquelyn Martin/AP/The Washington Post)

Read more:

Jonathan Turley: The House made a huge mistake on impeachment by not seeking evidence in court

Jennifer Rubin: House managers deliver a constitutional lesson

Danielle Allen: How can we get out of Trump’s world of lies? Let Hunter Biden testify.

Dana Milbank: John Roberts comes face to face with the mess he made

Jonathan Turley: Where the Trump defense goes too far

The latest commentary on the Trump impeachment

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