Another difference from the above analogy came into relief on Monday. Senate Majority Leader Mitch McConnell (R-Ky.) released a draft resolution articulating the rules by which the Senate trial will be conducted. In short: No evidence that wasn’t in the possession of the House when it voted to impeach can be submitted unless the Senate votes to allow witnesses to testify or to allow further evidence, a vote which will occur only after the House impeachment managers (the prosecution, if you will) and the president’s team make their cases. Each side has 24 hours in which to do so — but only over the course of two days, meaning an intentionally grueling or unavoidably rushed four days.
Update: The version of the resolution introduced by McConnell on Tuesday allowed for the 12 hours to be spaced over three days instead of two.
That boundary on the evidence, limiting it to what the House had gathered at the time of the impeachment itself, is a reminder of the constraints that supporters of impeachment have faced from the outset. Criminal investigators can subpoena, can pressure witnesses and cut deals. House investigators lacked similar power, allowing the White House to invoke executive privilege or, more broadly, to simply refuse to offer any testimony or evidence that it decided against sharing. Imagine a criminal trial in which prosecutors not only had to deal with a jury that included six members of the accused's social circle but also in which the accused didn't have to comply with any warrants or subpoenas. And here we are.
McConnell’s proposed block on post-impeachment evidence serves as a largely effective negation of the ploy by House Speaker Nancy Pelosi (D-Calif.) to delay transmitting the articles to the Senate for the trial to begin. That delay allowed a substantial amount of new evidence to accrue, of varying utility to the effort to demonstrate Trump’s culpability.
- A former associate of Trump’s personal attorney Rudolph W. Giuliani, Lev Parnas, turned over hundreds of documents to the House, including a letter from Giuliani to Ukrainian President Volodymyr Zelensky making explicit that his efforts to spur new investigations in that country were focused on Trump’s personal benefit.
- The Government Accountability Office released a finding that the administration’s withholding of aid to Ukraine — relayed to the Ukrainians by an American ambassador as a quid pro quo for launching the investigations that would benefit Trump — was a violation of federal law.
- Emails from the Office of Management and Budget, the department which held the aid, articulated that there was “clear direction from [Trump] to continue to hold” that aid. The email including that line came on Aug. 31 of last year, two days before the Ukrainians being informed that the aid was contingent on those investigations.
Those three things, by themselves, are strong evidence in support of the case at hand. They, of course, join a surfeit of other testimony and documentary evidence aimed at the same point: Trump leveraged his office to pressure Ukraine to launch investigations explicitly targeting former vice president Joe Biden, a possible opponent in this year’s presidential election. There are various offshoots of that case, including that the leveraging involved a White House visit by Zelensky in its most obvious form and that Trump’s desired investigations also included an effort to undermine the investigation into Russian interference, which was the bane of the president’s early tenure in his position. (If the actual investigations were desired at all, that is.)
There is not, however, robust evidence that the addition of these three points would affect the Senate jurors any more than what the House had in hand when it voted would be persuasive. That, in part, is thanks to a successful effort by the president and his defenders to defuse the allegations with arguments of widely varying rhetorical quality. His explicit request that Zelensky investigate Biden? Just part of his (otherwise diaphanous) dedication to uprooting “corruption.” Giuliani’s efforts on his behalf? Simply a convenient bit of freelancing. Allegations of a quid pro quo? Why, his own ambassador testified that there was no quid pro quo (offered when quoting Trump himself).
All of this hinges on the ability of Trump’s allies to keep Trump at sufficient distance from the alleged griminess of the situation. The various gymnastics that are required when considering the rough transcript of Trump’s July 25 call with Zelensky are one thing. A close ally of the president testifying that the president explicitly linked Ukraine aid to the probes, for example, or other documentary evidence that would more closely tie Trump to such a ploy? Much harder — though, as we’ve seen, probably not impossible — for Trump’s allies to reject. Hence the debate over allowing former national security adviser John Bolton to provide testimony in the impeachment trial. He might have evidence approximating such a smoking gun; the risk that he might has apparently inspired many Senate Republicans to curtly thanks-but-no-thanks his offer to appear.
It is, of course, possible that no such evidence exists, that Trump’s hands are no dirtier than the available evidence would suggest. Perhaps his insistence on his own innocence is valid. Or perhaps he knew the territories in which it was dangerous to walk: His pre-politics career included situations in which he apparently brushed against similar legal lines. We may not know the specifics of what happened for decades, if ever.
All of this may seem familiar to students of the first major legal crisis of Trump’s administration, that investigation into Russian interference and the probe by special counsel Robert S. Mueller III. That investigation ended in something of a draw, with Mueller’s final report indicating that his team was unable to find sufficient evidence to establish criminal coordination between the Trump campaign and specific Russian interference efforts. The report also documented both Trump’s broad lack of recollection of significant events and, at another point, the various ways in which it was obstructed (in at least the colloquial sense) by foreign actors and allies of the president.
In that case, Trump claimed often and loudly that he had been exonerated by Mueller. That was never the case. Nor is it fair to say that a failure to prove criminality is equivalent to exoneration — at least in a political sense. Yes, in a criminal trial, the accused is innocent until proved guilty. In the world of politics, the standards are necessarily a bit different, or ought to be. Trump isn’t exonerated for the simple reason that the questions linger, a dissipated iteration of the cloud that he lamented in conversations with James B. Comey before his ignominious ouster as FBI director.
That may be unfair in the case of the Russia probe. There are certainly critics who will always view Trump’s actions, whatever they may be, through the lens of his being somehow beholden to Russia. In the case of the impeachment trial, though, the effort to obscure what happened is much more substantial even as the available evidence is much more suggestive. The accusations have Trump at their heart and are reinforced by any number of points of evidence while people close to the events at issue have been silent on what occurred. Even simple documentary evidence, like calendars compiled by administration officials, have been kept out of investigators’ hands. In a brief filed on Monday, the White House argued that no subpoenas issued before the Oct. 31 vote to formalize the impeachment inquiry were valid, perhaps trying to crack open a door to limiting even the evidence the House had at the time of the impeachment vote.
McConnell seemingly wants to power through. His proposed rules would knock out the evidence presentations as soon as possible and then give leash to consideration of witnesses only sufficient to both allow purple state senators up for reelection this year to point to a fair process and to shut out any testimony that might actually be a problem. It’s a tightrope, but when it comes to Senate procedural tightropes, McConnell is a Flying Wallenda.
The way in which the criminal-trial analogy fails most spectacularly, of course, is in the implication that the standard to which a president should be held is proof beyond a reasonable doubt of violations of federal law. If a criminal trial included friendly jurors and a wanton disregard for requests for evidence, the accused might walk free, but few would be convinced that he had actually proved his innocence.
It’s even harder to argue that a president who walks away from a similarly loaded trial could claim exoneration.