Mitch McConnell is giving every indication that President Donald Trump’s Senate impeachment trial will not introduce any new evidence. Instead, it will use only the evidence gathered by the House of Representatives and cited in the articles of impeachment. Is this, as some Democrats have argued, a travesty of justice?
The short answer is no. There is already more than enough evidence to convict Trump of the high crimes and misdemeanors with which he is charged. And although they’ll protest, this outcome might be better for Democrats politically than striking some kind of deal with McConnell.
Of course, it would be preferable for the Senate to call former national security adviser John Bolton, acting chief of staff Mick Mulvaney, Mulvaney’s adviser Robert Blair and budget official Michael Duffey. Bolton has even said he would testify if called — although the timing of his announcement, on the eve of McConnell’s, lends credence to my theory that he only offered to testify on the expectation that he would not actually have to do it.
These witnesses could fill in valuable details about Trump’s abuse of his office to solicit the announcement of the Biden investigations from Ukrainian President Volodymyr Zelenskiy. Those details could help bolster the case for impeachment already made in the House. The details seem overwhelmingly unlikely to be exculpatory of the president — otherwise he would be encouraging these officials to testify, not prohibiting them from doing so.
Yet it’s worth remembering that the decision whether to remove Trump won’t be made by objective, unbiased jurors learning of the facts of the case for the first time in the course of the trial. It will be made by elected senators, who have already had the chance to hear all the evidence introduced before the House — and whose votes will surely be determined much more by party loyalty than by any inconvenient facts. We cannot indulge the fantasy that there exists some hypothetical “truly objective” Republican senator who would vote differently if only he or she could be exposed to testimony by Bolton et al.
Then there’s the fact that Democrats already chose not to call these four witnesses before voting on articles of impeachment. To be sure, that was the result of a strategic calculus. The witnesses were likely not going to appear if called, triggering a court battle that could have lasted well into the spring. That would have delayed an impeachment trial until well into the Democratic primary, potentially overshadowing Super Tuesday and the Democratic presidential candidates who will desperately need public attention to take on Trump.
Yielding to McConnell on the matter of witnesses is also a political calculation. If Democrats had gotten McConnell to agree to call additional witnesses, it might have led the White House to call Hunter Biden or his father, Joe, focusing public attention on the very issue that Trump wanted Zelenskiy to highlight. This would have put Democrats in the awkward position of saying that the House managers, acting as prosecutors, should get to call witnesses, but that the defendant, who happens to the President of the United States, should not be able to call witnesses of his own. Seen in this light, Democrats might prefer to have no new witnesses called — or even to have no witnesses called at all. Either allows them to rail against the trial as inadequate or illegitimate, which is a politically better outcome for them than having their presidential front-runner called to the stand.
Democratic lawmakers can argue that McConnell is using his majority to shape the Senate trial in the president’s favor — just as Republicans argued that the House Democrats used their majority to block Republicans from calling witnesses in the House. On balance, the former is arguably worse than the latter, since a trial needs to be fair to both sides, whereas an impeachment inquiry, like a grand jury hearing, doesn’t necessarily need to hear from the defense. Yet McConnell is treating the prosecution with formal equality, at least so long as he does not allow the defense to call witnesses while denying the same right to the prosecuting House managers.
By proceeding to vote to impeach without the testimony of these witnesses, Democrats have expressed their belief that there is enough evidence already on the record to pass judgment on the president. The Democrats will have to sleep in the bed they made.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.