If There Is An Impeachment Trial, Who Should The Witnesses Be?

This is a special column to SaraACarter.com. David Schoen is a civil rights and criminal defense lawyer, who has served as trial counsel in the past for the Democratic Party and has been outspoken against the Democrats push for an impeachment against President Donald Trump.

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The decision by the Democratic majority in the House of Representatives to impeach the President was, by any measure, an extraordinary event.  But for those Americans for whom the Constitution holds a central role in our Democracy, the undeniably political nature of these impeachment proceedings from start to finish brought shame to the once great Democratic Party.

Literally, in just a matter of weeks, Democratic Party leaders in the U.S. House went from insisting that there should be no impeachment unless it had bipartisan support to demanding that all Democratic Party members vote for impeachment and not break ranks under any circumstances.

Unfortunately, making Party loyalty the guiding principle on this constitutionally significant issue is perfectly consistent with the shockingly un-American pronouncements by Democrats Jerrold Nadler and Al Green, when they declared, in substance, that members must vote to impeach because the American people could not be trusted to beat Donald Trump at the polls in 2020.  Their words speak volumes and should scare to death every American who cares about our Democracy and the value of her or his vote.

One might have hoped, notwithstanding recent events, that following the impeachment, some semblance of constitutional order would prevail and the matter would proceed to adjudication in the Senate. Instead, the political circus continues.

In 1788, Alexander Hamilton, dedicated Federalist numbers 65 and 66 to a defense of the constitutional role given to the Senate as the forum for a trial on articles of impeachment passed by the House.  He provides strong arguments for the Senate as the best of all available alternatives.  There are a variety of ways to proceed once an impeachment has made its way to the Senate. Rules of procedure have been modified at various times.  The Constitution itself, of course, provides little guidance.  It requires that the Chief Justice of the Supreme Court shall preside, although just what authority he or she has and what that role entails remains uncertain and it requires that the proceedings be conducted under oath, in consideration of the solemnity and consequences of the mission.  Beyond that, as the Supreme Court held in 1993, the Senate has broad discretion in deciding how to proceed.

Trial or Summary Proceedings?

The fundamental question that must be decided from the outset is whether there is to be a full blown trial with witnesses and other evidence taken or whether there will simply be summary proceedings with a vote taken after oral presentations by members of the Senate.  Most Democrats argue that there should be a full trial; but they want to decide who will and who will not be allowed to testify, apparently unaware that the sway they held in the House ended with the decision to impeach.  Some Republicans maintain that a trial would only dignify the sham partisan proceedings that led to impeachment and that the articles should be summarily dismissed.

While there is something enticing about the prospect of seeing the trial end quickly so that the country can get back on track, it risks giving the bullies who were hellbent on impeaching this President since the day he was elected the ability to cry foul and convince people the President has something to hide. In truth, a summary dismissal is the closest thing they can get to a victory.  It allows them to avoid having the corruption that was at the heart of the President’s Ukraine phone call publicly aired – facts which could take Democratic front-runner Joe Biden right out of the race.  Of course, that would thrill the increasingly powerful Democratic Party faction led by Ms. Ocasio-Cortez and her Hate Squad who back Bernie Sanders and Elizabeth Warren; but the Senate is not the forum for their internecine battle to play out.

Perhaps at the end of the day, since the House decided in its wisdom to return articles of impeachment, a real trial is the only way to expose the absurdity of the partisan process that got us here and to educate the American people about both that process and the underlying facts.  A real trial, with some semblance of due process, would make those who pushed for impeachment rue the day they succeeded.

What Should a Trial Look Like?

A trial in the Senate would focus primarily on the article of impeachment that charges the President with abusing his office by purportedly soliciting the Ukraine to influence the 2020 Presidential election by withholding foreign aid unless the Ukraine committed to conducting an investigation into long-standing allegations of corruption, involving Joe Biden and his son, thereby purportedly putting our national security at risk.

Any full and fair trial on the first article of impeachment must include, at a minimum, establishing the following fundamental principles:

Expert Witnesses are Needed.

First, all American foreign aid is, always has been, and many would argue, always should be based on a quid pro quo.  America primarily provides foreign aid in order to have influence with the recipients and to advance American interests.  This was a central premise of the much celebrated Marshall Plan. Indeed, experts from both ends of the spectrum and in between regularly bemoan the failure of our government officials to condition foreign aid on support by foreign aid recipients for our view of Democracy, for our position on pressing issues at the UN, on election reform, and on a commitment to fight corruption.

Secondly, under Article 2 of our Constitution, the President exclusively has the power to decide important matters of foreign policy, including, but not limited to, which countries we will have a relationship with and the nature and extent of that relationship.  No President in the modern area insisted on having and exercising that power more robustly than President Obama.

Third, at least since 1960, study after study on the advisability and impact of American foreign aid has cited corruption within the recipient country as perhaps the greatest determinative factor in whether aid should be given and, if so, what steps should be taken to address concerns about corruption.  Commentators who study such things regularly document the corrosive effect of corruption on several levels. One recent U.N. Study concluded that roughly 30 percent of foreign aid money never reaches its intended final destination because of corruption. Corruption in recipient countries is a destructive force that often promotes more corruption, in effect institutionalizing it for generations.

Conversely, of course, foreign aid with strings, and specifically with demands for corruption reform can lead to improvements for the recipient country in both the short and long term and enhances the donor nation’s reputation – and its national security.  If aid is firmly conditioned on specific corruption fighting steps, our dollars are much more likely to reach the intended beneficiaries and theoretically, at least, the quid pro quo – fight corruption or get no aid – filters through politically, to drive from office those who perceive their self-interest as best served through corruption.

Universally respected expert witnesses could establish these principles to the satisfaction of all who genuinely are interested in the matter.

The Facts Underlying the President’s Ukraine Call Must be Fully Aired.

Once these fundamental principles are established, the trial should turn to the basis for the President’s professed belief, based on facts he had been given, that the matter involving the Bidens was a prime example of corruption in the Ukraine that never had been fully investigated and should be.

To fully flesh out these underlying facts and circumstances, fundamentally important witnesses from any perspective include Joe Biden, his son Hunter, and Devon Archer, Hunter’s business associate and a close friend of John Kerry’s family.

It was the appointment of the younger Biden and Mr. Archer to the board of a Ukrainian energy company’s board, without any qualifications, that led the Wall Street Journal, on May 13, 2014, to publish a scathing article,  bringing to the fore the appointment of the younger Mr. Biden and Mr. Archer to the Ukrainian company’s board, and suggesting that the matter raised a number of major red flags for a variety of reasons.  President Trump did not concoct a concern about these circumstances out of thin air to gain advantage in a political battle. The corruption allegations that were the subject of his phone call with the Ukraine, long predated his presidency.

Many other mainstream media outlets since have written similar pieces, strongly arguing that the situation was very troubling and demanding further scrutiny and answers.  Very recently, the Washington Post reported that John Kerry’s step-son,Chris Heinz, who founded an investment company with Mr. Archer considered the decision to join the Ukrainian company’s board to reflect such poor judgment and the appearance of impropriety so clear that he publicly disassociated himself from Mr. Archer and the company. Mr. Heinz would be an important witness at the Senate trial.

The additional concern that has been raised, with some measure of irony, is that then Vice-President Joe Biden, the Obama administration’s point man for the Ukraine, acted inappropriately in continuing to oversee our relationship with the Ukraine and, specifically, for withholding aid to the Ukraine based his perspective on how the Ukraine was addressing corruption, with some charging that Mr. Biden was not happy that the company his son was associated with had come under scrutiny from a Ukrainian corruption prosecutor.
The Bidens and others directly associated with the matter underlying the President’s call should be called to testify at any Senate trial and should be subjected to comprehensive cross-examination in an effort to get the bottom of the matter at the heart of the President’s phone call. Joe Biden, of course, should jump at the opportunity; for if he did nothing wrong, it affords him access to a huge audience before which he can clear his name and his son’s name once and for all.

There are other fact witnesses related to the underlying corruption allegations who should be called to testify as well; for surely the legitimacy of the President’s concerns about corruption in the Ukraine and his belief that U.S. aid should be withheld unless a serious corruption investigation were undertaken is directly relevant to the House’s charge that in conditioning the aid on the same, the President worked against our national interests and security.  Surely if the President had reason to believe the corruption charges were meritorious, no responsible person would argue that Joe Biden and his family should be exempt from scrutiny or should be given license simply by virtue of his potential candidacy for President.  Indeed, just the opposite is true.  It is in our national interests for all candidates to be fully vetted and for any corruption allegations to be fully investigated. Again, if he is innocent, it is Joe Biden who should be demanding a full investigation by the Ukraine to clear his name once and for all, especially after responsible journalists have called it into question long before Donald Trump did.

The Integrity of the Impeachment Process Must be Examined.

In addition to the substance underlying the first article of impeachment, the integrity of the process that led to the President’s impeachment, like the integrity of any charging process, must be examined if there is to be a trial in the Senate.

To that end, essential witnesses from any perspective must be Representatives Nadler and Schiff and their staff members who led the partisan charge to impeach.  Jurors in the court of American public opinion, as well os the Senators whose votes count, must be assured that the process was full, fair, and objective.  Americans deserve to know, for example, that Mr. Nadler chose as counsel to his Committee, acting, in effect, as the prosecutors urging the Committee to recommend impeachment, two lawyers with pronounced personal and political agendas against the President.

Before coming to their position, these two men, Norm Eisen and Barry Berke, teamed up to write a 168 page treatise purporting to demonstrate that President Trump was guilty of obstruction of justice. They appointed themselves prosecutor, judge, jury, and executioner and came to their conclusion before any actual investigation. Each was obsessed with publicly posting insults about the President, with one regularly retweeting what the other had tweeted. But none of this was enough for them. Both men brought a lawsuit against President Trump, alleging a violation of the now well known Emoluments Clause of the Constitution.  When their lawsuit was thrown out, they moved on to cheer a similar effort in another court and vowed not to give up the fight against the President.

The integrity of the impeachment process is too important to have been put in the hands of lawyers with an agenda of taking down the President by any means possible and at any cost, and who ended up just looking for the first excuse to pursue their agenda that comes along.  The American people deserve to hear from Messrs. Schiff and Nadler, and their staff, subject to cross-examination. Indeed, Schiff is a material witness on how this whole matter started, given his reported dealings with the initial “whistleblower.”  Neither Schiff nor Nadler should be permitted to ply their trade in the Senate as House managers, prosecuting the impeachment articles at trial. They should be disqualified as managers and must be called as witnesses to testify under oath and subject to cross-examination, with the integrity of the impeachment process fully explored.

Senators Seeking the Presidency Should Recuse Themselves.

Finally, whether or not there is a full trial, any candidate seeking the office of President in 2020 should recuse himself or herself from the vote on the articles of impeachment. The claim in the first article is that President Trump indirectly tried to affect the election by calling for the investigation of a possible election opponent against whom allegations of corruption had been raised. It would appear to be an opportunity to much more directly interfere with the election for other potential candidates in that election to exercise a vote which has the potential to eliminate altogether their potential opponent’s candidacy and that appearance of bias or personal interest ought to be the basis for disqualification from the impeachment vote, in the interest of the integrity and the objective appearance of the integrity of the impeachment process.

The House’s rush to impeach President Trump on these dubious articles is very troubling for many reasons. The idea that demanding an investigation – not a prosecution, not a Mueller-like, agenda driven sham; but a full and fair investigation – into corruption, before hundreds of millions of American foreign dollars are given away is an impeachable offense is a very dangerous proposition.  The charge that doing so puts our national security or national interests at risk is contradicted by every reputable international study that demands the conditioning of foreign aid on tangible proof of corruption-fighting efforts by recipient countries.

The additional notion, reflected in the second article of impeachment, that it is an impeachable offense for the President to challenge Congress’s authority through our judicial system is an affront to our Constitutional concept of checks and balances and should not be dignified with any substantive hearing at all.

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