WASHINGTON, DC—Even as the U.S. Senate prepares — with great pomp and ceremony — to begin the impeachment trial of President Donald Trump, new information about his case continues to come out. For instance, just in the past few days, Lev Parnas, an associate of the president’s personal lawyer Rudy Giuliani, has been making the rounds of talk shows explaining texts and documents of his that have been released in way he says implicates Trump in exactly the kind of shakedown conspiracy he’s been accused of, and accuses Vice President Mike Pence, Secretary of State Mike Pompeo, and Attorney General William Barr of being co-conspirators. It’s explosive stuff. And it may be untrustworthy — Parnas is a shady character who is facing charges of his own in a New York court. Still, it’s not in dispute that he worked with the guy who works for Trump, so it does seem like the kind of information that you’d want to examine and test — in, say, a trial. Perhaps like the one getting underway in the Senate now. But many Republicans in the Senate who will decide on the rules for the trial over the next few days seem dead set against hearing from Parnas, or from even more obviously credible witnesses such as former National Security Adviser John Bolton or Trump’s acting Chief of Staff Mick Mulvaney, or hearing any new information at all that may be available. “I’m going to judge the case based on the evidence assembled by the House, I’m not going to expand the record,” Sen. Lindsay Graham said on a Fox News program this week. Sen. Susan Collins, one of a handful of Republicans who has indicated she might vote to hear from some witnesses, also suggested that the emergence of Parnas’ revelations are a sign the House didn’t do its job before impeaching the president. These are in line with a principle Sen. Marco Rubio tried to outline this month on Twitter: “The testimony & evidence considered in a Senate impeachment trial should be the same testimony & evidence the House relied upon when they passed the Articles of Impeachment. Our job is to vote on what the House passed, not to conduct an open ended inquiry,” he wrote. They seem to be suggesting that it would somehow be improper for a trial to hear directly from witnesses, or hear and test new evidence. Like many Canadians, my formal study of the American legal system amounts mostly to repeated viewings of Law & Order. But that television background has been enough to allow a basic understanding that in impeachment, the House acts almost like a grand jury evaluating whether there’s enough evidence on the face of it to charge the president (similar to a preliminary inquiry in Canada) — with a vote to impeach being essentially an indictment. Then it is the Senate’s job to hold a trial to hear and test the evidence, evaluate it, and pass judgment. Given that, it is bizarre to hear people suggest that a trial is the wrong place to hear testimony and examine evidence. Courtroom dramas have taught us that is exactly what a trial is for. Isn’t it? “Absolutely correct,” says Michael Sozan, a senior fellow at the Center for American Progress, who studied law at George Washington University rather than on a television screen, and has practised privately and as an attorney for the Department of Justice. It is both allowed and common in criminal trials, he says, for evidence to be presented in court that wasn’t heard before a grand jury. And the same, he says, is true of impeachments. “In fact, I was looking back at the trial of President Andrew Johnson, his impeachment trial. And there were 41 witnesses allowed there.” Interestingly, in that case (one of only two precedents for a presidential impeachment trial in U.S. history), the House didn’t really conduct an investigation at all before bringing articles to the Senate for trial. In the Clinton case, after an exhaustive four-year-long investigation, the Senate heard from three witnesses. “The types of arguments that Lindsey Graham or that Susan Collins are making just don’t seem to be well taken here. It’s just not correct.” A survey of experts on Twitter by LawandCrime.com after Rubio’s tweet came to the same conclusion. “It’s a trial, not an appellate argument based only on the record from the House. Federalist 65 says the Senate’s trial ‘can never be tied down by such strict rules,’” Orin Kerr, a law professor at UC Berkeley tweeted in response to Rubio. What is true is that, as Kerr suggests, unlike a jury or even the judge in a traditional court, senators in an impeachment aren’t required to hear from any witnesses or consider any particular evidence. “The impeachment trial is not at all bound by formal evidentiary rules. It’s bound by whatever the Constitution says, which is very, very little. So there is broad latitude at this in the Senate trial,” Sozan says. “Senators can vote on whether to allow evidence, and that is really what this is wrapped up in.” Senators make the rules for the trial. If Republicans — or Democrats for that matter — in the Senate don’t want to call witnesses or hear evidence for political reasons, whether to protect the president or otherwise, they don’t have to. But for them to claim there’s some kind of constitutional principle which would make it improper is simply untrue. Edward Keenan is the Star’s Washington Bureau chief. He covers U.S. politics and current affairs. Reach him via email: [email protected] |