In the weeks since the House impeachment hearings started, Republicans have flitted from one argument to the next to try to convince Americans that the process lacks validity. One point they have made repeatedly is that the evidence is largely hearsay, and therefore invalid.
I teach federal evidence law, and that argument doesn’t hold water. Much of the testimony in the record wouldn’t be hearsay at all under federal court rules, and other statements would be admissible under one or another hearsay exception. Moreover, as Senate Republicans have made obvious with their recent proclamations about how the Senate should proceed, an impeachment trial isn’t a federal court proceeding.
It’s an absurd situation. Republicans say the evidence isn’t up to snuff. Yet the very man under investigation, President Trump, is the one who has blocked the testimony of witnesses who might strengthen the case.
The time has come for congressional Democrats to call the Republicans’ bluff: They should go to court to compel testimony from key members of Trump’s inner circle who have firsthand knowledge of the president’s dealings with Ukraine, including former national security advisor John Bolton and White House acting Chief of Staff Mick Mulvaney. These witnesses should tell the House what they know, under oath, even if that means delaying a vote on the articles of impeachment.
Don’t get me wrong: It’s plain from the evidence already in the record that Trump should be impeached and removed for abusing his powers in badgering Ukraine’s newly minted president to dig up dirt on former Vice President Joe Biden.
But on Thursday, Senate Majority Leader Mitch McConnell made it clear that he plans to serve as the president’s advocate in any Senate trial. And, as McConnell told Fox News’ Sean Hannity, he already believes there is “no chance” the president will be removed based on the current articles of impeachment and evidence. Other Republican senators made clear over the weekend that they will join McConnell, and not a single member of the majority leader’s party has spoken publicly against his plan.
It’s true that testimony from witnesses like Mulvaney, Bolton and former White House Counsel Donald McGahn isn’t necessary to the already strong case for removal. But it is important not to set a precedent that rewards the president for ordering administration officials to defy the House as it exercises its impeachment powers, and McConnell will try to do just that by ending the trial without testimony from these and other witnesses.
Senate Minority Leader Charles E. Schumer of New York has now proposed that Democrats be allowed to call the president’s recalcitrant witnesses to the stand at the impeachment trial. If that’s permitted, then the House should move forward promptly with an impeachment vote.
But if McConnell and his band of Trump defenders in the Senate make clear they will suppress the very testimony that would answer their claims of weak evidence, then it’s time for Plan B.
What can House members do instead of walking into a rubber-stamp acquittal in the Senate?
House Speaker Nancy Pelosi could announce that the articles of impeachment voted by the House Judiciary Committee last week will be brought to the floor at a future appropriate, but unspecified, time.
The speaker could then hold a news conference announcing that — to address House Republicans’ evidentiary demands — the House will seek testimony from additional firsthand witnesses. It will do so by suing every subpoena-defying witness in federal court, seeking court orders that these officials appear and testify under oath. Then the House should subpoena any others whose testimony could supplement the record.
True, it will take months to adjudicate these cases, which is why Democrats have decided up to now not to sue. But that decision was made back when some thought GOP senators might actually consider with an open mind the available evidence, including the president’s obstruction of lawful subpoenas. If the Senate GOP will allow only a whitewash, then Democrats’ calculus should be different.
At worst, a months-long pause will delay the inevitable. But in the meantime, the president’s abuses will stay in the news, and that might constrain Trump from further abusing his power, since adding additional articles of impeachment would be easier for the House before a Senate acquittal than after.
House Democrats should resist McConnell’s plan to produce only the barest mockery of a trial. They are standard-bearers of a coequal branch of government, and now the last line of defense for the rule of law.
Speaker Pelosi still has cards to play. She should use them to call the Republicans’ bluff.
Jonah B. Gelbach is a professor of law at UC Berkeley. He teaches evidence law and civil procedure.