John Bolton in May 2019. Photo by Tia Dufour, courtesy The White House.
As the Senate moved toward a pivotal decision on whether to call John Bolton or others as witnesses at Donald Trump’s impeachment trial, there was every sign that whatever they did, they would do for reasons that miss the point of impeachment in the first place.
The point of a Senate impeachment proceeding against a president is to return a verdict of guilty or not guilty on the allegations presented by the House of Representatives in seeking his removal from office. It is not a forum for conducting an open-ended investigation while other Senate business is put on hold. In other words, it is a trial, not an inquest. Much of the debate over calling witnesses has lost sight of the distinction.
The House impeachment managers presented their case last week. The president’s defense team concluded its rebuttal on Tuesday. The past two days have been devoted to questions from senators directed toward both sides.
In an ordinary criminal trial, there is a standard of proof, which is that the prosecution must prove its case “beyond a reasonable doubt.” It is the strictest trial standard, which is appropriate if we are going to deprive someone of liberty for an offense. In civil cases, lesser standards of “clear and convincing evidence” (an intermediate bar) or “preponderance of the evidence” (the lowest standard, meaning anything more than a 50-50 tie) can be used to find a defendant’s liability to a plaintiff.
The Constitution says nothing about the standard that applies to impeachment. It would not matter much if it did. In a practical sense, each senator serves as both judge (decider of the law, such as the definition of “high crimes and misdemeanors” and the applicable standard of proof) and jury (decider of guilt or innocence). The Constitution assigns the chief justice of the Supreme Court to preside over the impeachment proceeding but does not assign the determination of legal questions to him. Impeachment is, at its heart, a political question of deciding both the facts and the law. The political houses of Congress make their own rules.
So are witnesses necessary for an impeachment trial? To answer that question, we have to look at what the witnesses might or might not be able to contribute to the senators’ task of returning a guilty or not guilty verdict.
Consider, first, the 45 Senate Democrats and two independents (Maine’s Angus King and Vermont’s Bernie Sanders) who caucus with them. If they are already convinced of Trump’s guilt of the conduct alleged by the House, and that the alleged conduct meets the constitutional standard for removing a president, then having witnesses serves no purpose for them other than to prolong the proceeding.
If the prosecution has already proved its case, as it probably has in the eyes of most Democrats, then calling witnesses on its behalf can only do one of two things. It can run up the score or, in the worst case, it can undermine what prosecutors have previously accomplished. The prosecutors in the O.J. Simpson murder trial dearly wished they had not asked him to try on the famous leather glove found at the scene. That misstep led to Johnnie Cochran’s famous exhortation, “If the glove don’t fit, you must acquit.”
As for the Republicans who hold the Senate majority, the question is whether the conduct alleged by the House meets the definition of an impeachable offense in the first place. (I am assuming here that all Democrats and their fellow travelers believe that it does, although there may be a few isolated exceptions.) Republicans should assume that Bolton or other witnesses could provide proof that the House articles of impeachment are supported by the facts or, alternatively, could disprove those facts. Either way, witnesses are essential – but only if the House has alleged presidential conduct that warrants impeachment.
If the Senate Republicans believe that Trump’s conduct, even if proven, does not meet the standard of an impeachable offense, then once again calling witnesses would be superfluous.
This is why I entered today expecting that Republicans would likely reject a demand for witnesses. Several Republican senators expressed confidence that they would defeat the motion after a caucus meeting on Tuesday. By Wednesday, more indications began to emerge that the Democrats would not succeed in swaying Republicans to vote in favor of calling witnesses. Regardless of public opinion, witnesses are likely to budge few Senate points of view at this stage and are almost certain not to affect the trial’s final outcome. Trump is highly likely to serve out his current term, and voters will decide whether he gets another.
The House proceedings were the inquest, conducted under the rules and within the timeline the House itself established. That inquest produced the articles of impeachment that the Senate is considering. Having witnesses testify to the facts is a pointless exercise if the facts alleged by the House do not support a guilty verdict. A judge would usually make that determination in a criminal trial. Here, the senators themselves hold that power.
Of course, it will be the voters who get the last word. Every senator must answer to constituents, just like the president. Roughly half the country is going to be unhappy no matter what conclusion the Senate reaches or what route it takes to get there. Apart from 100 senators, the rest of us must wait to render our verdicts at the polling stations.