Editor’s Note: In this weekly column “Cross Exam,” Elie Honig, a CNN legal analyst and former federal and state prosecutor, gives his take on the latest legal news. Post your questions below. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Ana Cabrera” at 5:40 p.m. ET Sundays.
Congratulations to the United States Senate of the 116th Congress: You’ve done it. You’ve made history. You have held the first impeachment trial in our nation’s history involving no witness testimony whatsoever. Take a bow.
There have been 15 prior completed impeachment trials in the United States, involving two Presidents and other federal officials (mostly judges). In every single one of those previous trials, the Senate heard witness testimony. Forty-one witnesses testified in the 1868 trial of President Andrew Johnson, and three witnesses testified by deposition in the 1999 trial of President Bill Clinton. In the last four non-presidential impeachment trials, the Senate has heard from 21, 55, 10, and 26 witnesses.
But not this Senate. Who needs witnesses at a trial, after all? What a quaint notion.
The idea that witnesses should testify at a trial hardly seems novel, or controversial. Indeed, according to a recent Quinnipiac University poll a staggering 75% of the American public – including 49% of Republicans – favored hearing from witnesses in President Trump’s impeachment trial.
Despite these polling numbers, 51 of the 53 Senate Republicans voted against calling witnesses. Senators Susan Collins and Mitt Romney flipped and joined the 47 Democrats and Independents, leaving the total vote 51-49 against. So what reasons have Senate Republicans offered to justify their “no” votes on impeachment? Here the three big ones – which range from flimsy (at best) to dangerous (at worst).
It’ll take too long. Trump vowed to fight former national security adviser John Bolton’s testimony by invoking executive privilege, which could have bogged down the proceedings in legal battles for weeks or months. Trump’s attorneys and Senate Republicans fretted about the potential delay.
However, lead House impeachment manager Adam Schiff said he would bring any executive privilege issues directly to Chief Justice John Roberts for quick disposition (while Roberts later said he would not break a 50-50 tie vote in the Senate, he said nothing about whether he would decide evidentiary issues – and Senate impeachment rules specifically give him the ability to “rule on all questions of evidence”). Schiff also offered that, if witnesses were approved, he would limit the presentation to one week. Republicans just shrugged and said, eh, no thanks.
The House should have called all witnesses. There is simply zero legal authority for this creative argument. Even a grand jury analogy – that the House, like a grand jury, investigates, while the Senate, like a trial jury, decides the facts – does not hold because parties to a criminal trial can in fact call witnesses who did not testify in a grand jury. And many of the witnesses who testified in the prior 15 impeachment trials did not testify first in the House.
Even if the allegations are true, they’re not impeachable. This is where the excuses tread on dangerous ground. Professor Alan Dershowitz, a member of Trump’s legal team, offered up this notion that, even if the allegations against Trump are true, they are not impeachable. Republican Senators eagerly took shelter behind this thin reed: Witnesses could not possibly shed relevant light on the facts because even if all the facts are true, Trump is not guilty. But if the allegations against Trump are true – if indeed he did try to use the power of the presidency to pressure a foreign country to interfere in a US election – and that conduct is not impeachable, then what is? This principle raises the bar on impeachment to virtually unreachable levels, and risks placing the president above the law.
Republicans in the Senate have offered up a platter of lame, unconvincing and even dangerous arguments. But the truth is obvious. The real reason Senate Republicans voted against witnesses is that they didn’t want the Senate – or the American public – to hear what those witnesses have to say.
This gambit will succeed in shutting down the impeachment trial before it could ever truly begin and ensuring Trump’s acquittal. But ultimately it will backfire. The truth will emerge somehow, someday. The House still can subpoena former national security adviser John Bolton and other key witnesses. As chair of the House Intelligence Committee, Rep. Adam Schiff has the authority to subpoena Bolton pursuant to the committee’s continuing effort to investigate national security threats.
Trump surely will try to block any such testimony by asserting executive privilege, but Schiff now has ample time to fight that strained claim in court. Schiff remained non-committal when asked whether he would subpoena Bolton, but declared that “the truth will come out.”
Other evidence will continue to emerge as a result of Freedom of Information Act lawsuits filed by journalists and private citizens. The media will continue to break important stories, as the New York Times did when reporting on the explosive contents of Bolton’s book manuscript, including the revelation that Trump specifically tied foreign aid to Ukraine to his desire for investigations of his political opponents. (Trump has denied the claims in Bolton’s manuscript.) And perhaps other participants in or witnesses to Trump’s conduct will come forward publicly.
Every time a new piece of information comes out – from now, through the 2020 election, and beyond – every Senator who voted against hearing witnesses should be asked simply: What were you trying to hide?
Now, your questions
Jatinder (Virginia): Can the Senate decide to have the final impeachment vote in private?
The final Senate vote on Wednesday to convict or acquit the President – which is virtually certain to result in his acquittal – will be open and public. The Senate’s internal impeachment rules require that “each Senator, as his name is called, shall rise in his place and answer: guilty or not guilty.” In both prior presidential impeachment trials, of Johnson and Clinton, the Senate voted publicly.
The Senate could vote to amend its own rules and allow a private vote. But there is simply no way that will happen at this late stage, as a practical and political matter. Nor should it. A vote on impeachment is monumental, and each Senator should stand up (literally) and be accountable for his or her verdict.
Tom (Colorado): Will the Senators vote on each article of impeachment separately, or one vote for both?
Trump faces two articles of impeachment – one for abuse of power relating to Ukraine and another for obstruction of Congress – and the Senate will vote separately on each article.
We could see a small handful of Senators split their votes, opting for conviction on one count but acquittal on the other. A Senator might conclude that Trump abused his power relating to Ukraine (Article I), but did not obstruct Congress (Article II) because he had a right to legally contest the House’s subpoenas. Or a Senator could reason that Trump did not abuse his power relating to Ukraine but did obstruct Congress by stonewalling Congressional subpoenas.
There is historical precedent for vote-splitting. In the Clinton trial, five Senators voted guilty on an obstruction of justice article but not guilty on a perjury article.
Miren (South Carolina): Could House Speaker Nancy Pelosi have held the articles of impeachment until after the 2020 election?
Legally, Pelosi likely could have held the articles until after the 2020 election. The Senate’s internal impeachment rules specify that trial starts after the House notifies the Senate of the impeachment managers and delivers the articles to the Senate. The rules set no time limit, and even use the phrase “whensoever” – suggesting that the House can make the formal notice at any time it chooses.
There is relevant precedent. President Bill Clinton was impeached in December 1998 by the House in the 105th Congress, but he was tried in January 1999 by the Senate in the next (106th) Congress. According to Peter Baker’s history “The Breach,” Clinton’s team considered challenging the legality of holding the trial in a subsequent Congress, but ultimately decided against it.
As a practical matter, it would have been politically difficult or impossible for Pelosi to hold the articles for so long. The American public, and members of Pelosi’s own Democratic party, likely would not tolerate a delay of nearly a full year between impeachment and trial. Such a delay would undermine the sense of urgency around impeachment, and likely would have backfired on Democrats had they tried it.
Three questions to watch:
1. Will new revelations continue to emerge, and how much political cost will there be for Senators who voted against hearing evidence?
2. Will the House continue to investigate the Ukraine scandal (and will the House subpoena Bolton)?
3. What will President Trump say about his impeachment publicly during major events this week, including the State of the Union address?
