Democrats’ relentless but unsuccessful fight for witnesses during President Donald Trump’s first impeachment trial could come to haunt them as they prepare for his second.
Many in the party are pushing for a speedy Senate trial so the chamber is not distracted for long from other Democratic priorities: confirming President Joe Biden’s executive branch nominees and passing something resembling his proposed $1.9 trillion coronavirus relief package.
Several Democrats have also said they don’t expect the impeachment trial to be long, given that lawmakers were all witnesses to the Jan. 6 insurrection on the Capitol that the House has charged Trump with inciting. Their first-hand experience as victims of Trump’s alleged crime has led many Democrats to say they may not need to call witnesses at the trial — although they’ve been careful not to explicitly rule it out.
“All of this was in plain view, what the president said, what he’s done,” Michigan Sen. Debbie Stabenow told CQ Roll Call. “We are the witnesses in my book. And so we’re in a situation where certainly it has to have integrity and fairness, but it’s a very different situation” than the first trial.
“This evidence is pretty open and shut. It’s all Trump’s own words. It’s on video,” added Connecticut Sen. Richard Blumenthal, a former state attorney general. “In my view, the evidence here is very straightforward and simple. His intent was clear, his lack of remorse when five people were killed. … The big question is, ‘What is his defense?’”
Although Democrats think the House’s incitement of insurrection charge against Trump should lead to an easy conviction, Senate Republicans say they are not yet convinced. Some GOP senators don’t think there should be a trial since Trump has left office and question whether holding one is even constitutional.
Others, including Senate Minority Leader Mitch McConnell, have said they want to see what evidence is presented before deciding whether to convict the former president.
McConnell has acknowledged Trump had a role in inciting the Capitol attack. “The mob was fed lies. They were provoked by the president and other powerful people,” the Kentucky Republican said in floor remarks Tuesday.
But McConnell also noted in a statement after the House’s 232-197 vote to impeach Trump for a second time that “a fair or serious trial” could not occur in a matter of days. He pointed out that the three presidential impeachment trials to date lasted a respective 83 days, 37 days and 21 days — the latter being Trump’s first trial.
The question of whether to call witnesses likely won’t be decided until after Senate Majority Leader Charles E. Schumer and McConnell determine whether they can reach agreement on a trial schedule. A decision on whether to call witnesses could be part of any pretrial agreement the leaders reach, but it is more likely to be made after the prosecution and defense present their opening arguments.
The Senate’s impeachment rules require a trial to supersede any other pending business in the chamber. Delaying the start of the trial or allowing legislative business to be conducted while the trial is ongoing requires unanimous consent. Schumer and McConnell have been negotiating on those matters, but nothing has been decided.
McConnell has proposed a pretrial schedule for House impeachment managers and Trump’s defense team to file legal arguments that would have briefs roll in through Feb. 13. He argued the three-week period between now and then is needed to give Trump time to set up a defense, given the rushed House decision to impeach him.
The statement McConnell put out explaining his request for a delay could also be used to argue the case for witnesses — should Republicans want to go that route.
“At this time of strong political passions, Senate Republicans believe it is absolutely imperative that we do not allow a half-baked process to short-circuit the due process that former President Trump deserves or damage the Senate or the presidency,” McConnell said.
‘Mock trial club’
It’s easy to imagine Republicans turning Democrats’ words about the need for witnesses during the first trial against them as they head into the second.
“A fair trial is one that considers all the facts and gives the senators all the information they need to make an informed decision. That means relevant witnesses. That means relevant documents. That means the truth,” Schumer argued last year ahead of Trump’s first trial. “Without these things, a Senate trial would become a farce — a nationally televised meeting of the mock trial club.”
The New York Democrat even went as far as to point out that “with one exception, every impeachment trial of any official in the history of the United States has featured witnesses.” The exception, he said, was the 18th-century trial of a fellow senator, whose impeachment charge was dismissed on jurisdictional grounds.
If Democrats argue in the second trial that witnesses are not needed — a path many have signaled they are headed toward — it would stand in direct contrast to their arguments in the last trial that calling witnesses was a basic question of fairness and due process.
“There’s so much obvious hypocrisy in this, that a year ago this week, we were in a trial where Democrats were screaming, ‘We need witnesses, how can you possibly do a trial without witnesses?’ Now they’re saying, “Eh, we really don’t need witnesses on that. Let’s just be able to move on through it,’” Oklahoma GOP Sen. James Lankford said.
Schumer has not specifically addressed the issue of calling witnesses for the second trial, but in floor remarks Friday, he said, “It will be a full trial; it will be a fair trial.”
Senate Majority Whip Richard J. Durbin said it’s too soon to answer the witness question, while also noting a significant difference between the two trials.
“We are not just jurists when it comes to this issue. We are eyewitnesses. We lived it,” the Illinois Democrat said. “You don’t need to tell us what was going on with the mob scene. We were rushing down the staircase to escape it.”
Many Democrats agree with Durbin’s view that with lawmakers themselves as witnesses to the attack, the imperative to call others is diminished.
Pelosi — who like Schumer argued that Trump’s first impeachment last year could not be a fair trial without witnesses — told reporters Thursday that the circumstances were different this time.
In Trump’s first trial, the House impeachment managers prosecuted two charges, abuse of power and obstruction of Congress. Their argument for witnesses largely centered around the first charge stemming from Trump’s July 2019 phone call with the Ukrainian president in which he pushed for an investigation of his political opponent, then-candidate Biden. Democrats had wanted to call four witnesses who they said would prove Trump’s pressure campaign extended beyond the phone call, which most Republicans said was inappropriate but not impeachable.
“We’re talking about two different things,” Pelosi said Thursday. “We’re talking about a phone call that the president had as one part of it that people could say, ‘I need evidence.’ This year, the whole world bore witness to the president’s incitement, to the execution of his call to action and the violence that was used.”
‘A question of law’
Some Democrats are hoping that in Trump’s second trial most Republicans will at least agree on the basic facts they’re considering, even if they ultimately disagree that Trump committed an impeachable offense.
“I think this trial will be very close to what’s called a motion to dismiss or rule 12(b)(6) hearing, where the parties are able to agree to most of the facts and it comes down to a question of law — whether or not, given the facts you’ve agreed upon, does this charge actually rise to the level of meeting this particular legal standard?” Sen. Chris Coons said.
Every impeachment trial is a “balancing act” between providing “sufficient due process” and prolonging the proceedings, Coons said, adding that ultimately, it’ll be up to the individual senators to decide what kind of trial they want to have.
“We’re free to set our own standards of proof,” the Delaware Democrat said. “The rules of evidence are not the standard court rules of evidence. So it’s a sort of neither fish nor fowl kind of procedure.”
At least one Senate Democrat, Joe Manchin III of West Virginia, seems to favor calling witnesses.
“It would be great if there’s witnesses,” he said, while also calling the evidence “pretty damning” and noting that he’d like to hear the defense’s response. “You should go in there with an open mind even though the overwhelming evidence has been laid out by the whole world to see.”
The House impeachment managers haven’t revealed too much about their plans, but they’ve described, in general terms, plans for “a very robust case,” as Rhode Island Rep. David Cicilline put it Wednesday.
Trump’s first trial took 21 days, with no witnesses called. Maryland Rep. Jamie Raskin, the lead impeachment manager, said Thursday he doesn’t know how long the trial will take. “But I don’t think it will take as long as the last one,” he said.
Del. Stacey Plaskett of the Virgin Islands, another impeachment manager, declined to say how many witnesses would be called, which is ultimately up to senators to decide. But she suggested the managers could have witness requests.
“I don’t want to discuss our strategy at this point and the deliberations that we’re having,” she said Friday on CNN. “I think what would be more appropriate is for you all to see the witnesses when we have that witness list and have proffered that to the Senate, along with our evidentiary evidence.”
Ellyn Ferguson and Jennifer Shutt contributed to this report.