Nick Akerman* – Newsweek
President Donald Trump and Senate Majority Leader Mitch McConnell are desperately trying to block a real trial in the Senate, not because they are fearful of the testimony of witnesses such as former National Security Adviser John Bolton, but because they fear that pressure will build for the House managers to call Donald Trump as their star witness. A real trial means live witnesses who provide direct testimony and are cross-examined.
There is no dispute that the witness with the most material knowledge of the facts surrounding the alleged shakedown of Ukraine is Donald J. Trump. Indeed, he claims that his July 25th call with Ukraine President Volodymyr Zelenskiy was “perfect” and that he did nothing wrong. The problem for Trump is that his lies and obfuscation cannot withstand a vigorous cross-examination of the facts.
These inconvenient facts include use of his personal lawyer, Rudy Giuliani, to wage a concerted campaign to pressure Ukraine into publicly announcing investigations into the Bidens; Trump’s documented lack of interest in corruption in Ukraine as opposed to singling out the Bidens for his own political gain; Trump’s direction to withhold the appropriated funds from Ukraine; and his public admissions about seeking election assistance from foreign governments.
In a trial, a cross-examined Trump could not run away from the facts as the Republicans did in the House. In a real trial the House would, as is standard practice in traditional American jurisprudence, be able to subpoena from the executive branch relevant documents that could be used to devastate Trump’s alternative fact-based assertion of perfection.
An impeachment trial is not a criminal trial in which the prosecution is forbidden from calling the defendant to the witness stand. Under the 5th Amendment to the Constitution, a criminal defendant cannot be compelled to testify against himself and the prosecution cannot comment on that failure to testify nor can the jury consider the defendant’s failure to testify. However, in a civil case, the plaintiff has the right to call the defendant to testify. The defendant in a civil proceeding of course has the right to assert his 5th Amendment privilege in response to individual questions, but that refusal to testify can properly allow the jury to conclude that the defendant has something to hide and is therefore guilty of the acts alleged.
An impeachment trial is no different. It is a civil case because the penalty is not imprisonment but removal from office. Indeed, the Constitution expressly provides that once removed from office, the impeached official is then “subject to indictment.” Here, Trump could refuse to testify in response to specific questions based on his 5th Amendment privilege but his refusal to do so would support the conclusion he is guilty. Any claim by Trump of executive privilege also is unlikely to prevail since he has already waived any such privilege by virtue of releasing the summary of the July 25th call and his public statements about his role with Ukraine.
The initial decision-maker on such legal issues at the Senate trial will be Chief Justice of the Supreme Court John Roberts, whom the Constitution designates as the public official who “presides” over the impeachment trial of a president. While Chief Justice Roberts’ decisions can be overruled by 51 senators, it may not be so easy for Mitch McConnell to muster those 51 votes. Alaska Senator Lisa Murkowski has already made it clear that she is in favor of a serious consideration of the facts. If two more senators take the same constitutionally required position, we would have a fair trial with live witnesses.
Additionally, at an impeachment trial there will not be the opportunity for the Republicans to delay the process by litigating final decisions of Justice Roberts or 51 senators. Trials do not ordinarily adjourn for parties to appeal evidentiary and procedural issues. The practice is different in grand jury and House investigations, where privilege issues can be exhaustively litigated all the way up to the Supreme Court. There is no avenue of appeal from the Senate once a final decision on witnesses and the scope of their testimony is rendered by Justice Roberts or overruled or decided by 51 Senators. The U.S. Constitution provides that “the Senate shall have the sole Power to try all Impeachments” brought by the House.
In essence, Mitch McConnell may not, as he has suggested, have the ability to control the format of the impeachment trial to exonerate Donald Trump. The final rules of the trial may ultimately rest with Justice Roberts to call “balls and strikes,” as he famously described how he viewed his role as a Supreme Court Justice at his confirmation hearing, and whose legal and moral authority would have to be overruled by 51 senators. In the final analysis, what cannot be comforting to Donald Trump is the possibility that the Senate will choose to exercise its constitutionally mandated duties.
*Nick Akerman is a partner at Dorsey & Whitney law firm, a former Assistant Special Watergate Prosecutor and a former Assistant United States Attorney in the Southern District of New York.The views expressed in this article are the author’s own.?????