Democrats fear the outcome is assured, and doubt new witnesses will make a difference.
House Democrats put on an effective and often moving presentation of evidence during their opening arguments at former President Donald Trump’s second impeachment trial this week.
And the question now is whether they will stop there — or whether they will try to advance their case that Trump incited an insurrection further, by asking the Senate to allow testimony from witnesses.
The current betting in Washington is that they will not do so. With all but six Senate Republicans having coalesced around the position that an impeachment trial for a former president is unconstitutional, Trump’s acquittal seems nearly certain. (A conviction would require at least 17 Republicans joining all 50 Senate Democrats.)
As a result, senators on both sides seem eager to end the trial quickly. Republicans and Trump’s team want to avoid dwelling on the ugly topic any longer, and Democrats want to get back to doing things they can actually achieve with their congressional majorities, such as passing a pandemic relief bill and confirming more Biden nominees. (The impeachment managers did not use all 16 hours of their allotted argument time, and Trump’s team may use well less than half of theirs.)
Witnesses were of course a major issue in Trump’s first impeachment trial — Democrats argued that the Senate should allow former officials like John Bolton to testify, but Republicans, then in the majority, refused. But Democrats’ thinking on the importance of witnesses is not the same this time around (in part because the storming of the Capitol took place in public, with lots of video evidence showing what happened).
Still, under the Senate’s agreement to govern the trial, both the House impeachment managers and Trump’s team will have the opportunity to at least request witnesses. Trump’s team has no interest in doing this at the moment and have clearly signaled they want the trial over soon.
In contrast, House Democrats involved in impeachment have refused to say whether they will or won’t request witnesses. But while it’s technically up to them to make the ask, they likely wouldn’t go out on that limb unless Democratic leaders Nancy Pelosi and Chuck Schumer agreed — and signs indicate they aren’t keen on the idea.
What sorts of witnesses would make a difference? (Would any?)
The case for witness testimony in the abstract is straightforward and intuitive: It can strengthen the case against Trump.
Unlike in a criminal trial, sworn witness testimony isn’t strictly necessary for procedural reasons — an impeachment trial is fundamentally a political proceeding, and senators are free to make up their minds based on whatever considerations they want (rather than only considering evidence specifically put forward). Still, information provided under oath is theoretically at least somewhat more credible than relying on media reports of what people were saying or thinking.
Of course, whether testimony actually would strengthen a case, and how much it would strengthen it, depends on who those witnesses are and what they say. So who would they be? (The only person whom we know the impeachment managers have asked to testify was Trump himself, though he declined that invitation.)
Some have speculated that Democrats could call Capitol Police officers to testify about their experience as the mob stormed the Capitol January 6. However, the impeachment managers have already shown clips of police officers being interviewed in the press on the matter. It’s not clear how much live testimony would add.
Another possibility that has been bandied about is asking, or subpoenaing, White House aides to testify about Trump’s private behavior and conduct on January 6 and the days beforehand. The problem here is that if these witnesses are reluctant to testify, they could stonewall (including by suing in court, as former Trump White House counsel Don McGahn did in 2019, setting off a nearly two-year legal battle).
The best-case scenario for a witness would be someone who has firsthand knowledge of relevant, not publicly known damning behavior by Trump — and who is both willing and eager to testify. It is unclear whether such a person exists. The best way to find out would be for the impeachment managers to make discreet inquiries out of public view.
The practical obstacles
But even if Democrats get the witnesses of their dreams, there’s the additional question of whether bombshell revelations would matter. That is: Would new testimony be likely to change any Republican senators’ votes, or meaningfully impact the public’s opinion about Trump?
Throughout the Mueller investigation and Trump’s first impeachment, Democrats hoped for the elusive bit of information that would finally, indisputably prove Trump’s malfeasance, drive Republican politicians away from him, and crater his support among Republican voters. But despite damning scandal after damning scandal, the GOP base continued to stand by Trump — as did GOP politicians. New evidence simply didn’t matter.
Trump famously claimed he could shoot someone in the middle of Fifth Avenue and not lose any voters. The insurrection at the Capitol does seem to have lost him some voters (the New York Times reports that a higher-than-usual number of voters left the Republican Party in the days after it), but the GOP continues to be overwhelmingly the party of Trump, and Republican senators are acting accordingly.
On Tuesday, 44 of 50 GOP senators voted that trying a former president was unconstitutional, which certainly makes it appear that the outcome is predetermined. (A few Republican senators have insisted that, despite this vote, their minds aren’t made up yet when it comes to a verdict — such as Minority Leader Mitch McConnell and even Sen. Tommy Tuberville of Alabama — but there are reasons to doubt they are genuinely open-minded rather than just posturing as such.)
Of course, Democrats should still try to make a strong case even if they don’t think they will win. Getting top officials under oath about what happened on January 6 would be valuable for the historical record at the very least. However, that is also something that could be handled through committee investigations rather than an impeachment trial.
What looms largest over all these calculations is that Democrats have other priorities. All other Senate floor business has been halted as the trial proceeds. Only seven of President Biden’s nominees have been confirmed so far, and he has dozens more awaiting action. He also hopes to sign a major pandemic relief bill into law this month. According to a report in Politico Playbook, Biden officials, Schumer, and Pelosi are all united that they want to wrap up impeachment soon and return to these other matters — to the “frustration” of some Democrats who would prefer to call witnesses.
The Senate floor time problem is a real one, but it’s unclear if it’s an insurmountable one. Claims that the Senate majority “can’t” do something, like tackling floor votes on other business on certain days or in the mornings while the trial continues, are often simplifications of the underlying reality that they’d simply prefer not to push the envelope on it. (That is, they’d prefer not to deal with the minority party making a big procedural stink, not to use the nuclear option, or not to override the parliamentarian’s judgments.)
That is: if Democratic leaders really wanted a trial with witnesses, they could probably figure out how to make it happen. So the true objection is probably just that they don’t think this would be time well spent politically. In other words, why not move on to things the Democratic majority can do, rather than sinking time into something they can’t — convict Donald Trump?
Author: Andrew Prokop
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