WASHINGTON — Inside the Senate chamber on Day Two of the impeachment trial of President Donald Trump, the remarkable visual takeaway was 100 senators forced to stay seated and muzzled as a slugfest unfolded over whether to allow witnesses and documents.
The Trump et al position, embraced by Senate Majority Leader Mitch McConnell, R-Ky., is that the trial should not include witnesses or the introduction of new documents, including emails and text messages.
While Trump will have the stain of being the third president in the history of the U.S. to be impeached — that will never, ever change — he did sail through hearings in the House Judiciary Committee and House Intelligence Committee without providing any documents or any witnesses the Democrats wanted.
In summary, the Republicans and the president argue that the House Democrats should have gone to court to get a ruling about whether Trump could — as he did — block witnesses. It’s a circular argument that’s been made by team Trump: the House Democrats’ case is weak because it did not include the testimony of witnesses who know things first hand. But gotcha! Trump blocked aides with firsthand knowledge from talking.
That’s why in addition to an abuse of power charge, another article of impeachment was obstruction of Congress.
The Democrats want documents and testimony most centrally from Acting Chief of Staff Mick Mulvaney; then-National Security Advisor John Bolton; and Senior Advisor to the Chief of Staff Robert Blair.
Bolton said he would testify if the Senate sends him a subpoena. That’s a developing drama over whether four Republicans join Democrats in demanding Bolton testify. It’s a maybe right now.
Back to the matter of witnesses and documents being allowed at Trump’s trial, where strict rules call for the senators to be bolted to their seats and not talk.
Team Trump argues the House Democrats forfeited any right to witnesses because they did not go to court first to get a ruling on whether Trump could ban witnesses.
The Democrats did not take that court route because it could have taken a long time to resolve — the case probably would have ended up in the Supreme Court. It was a strategic decision, right or wrong.
That does not mitigate the larger point I want to make here: Trials in the U.S. include new evidence all the time that was not presented to a grand jury.
“Without the documents you can’t make important judgments about even which witnesses should be called or what questions should be asked of the witnesses when you do,” lead impeachment manager Rep. Adam Schiff, D-Calif., argued during a press conference before the session, previewing arguments made later on the floor.
Schiff added, if McConnell “makes this the first impeachment trial in history without witnesses or documents, it will not prove the president innocent. It will merely prove the Senate guilty of working with the president to obstruct the truth from coming out.”
The House proceedings were the very rough equivalent of a grand jury, where the decision was made — based on the evidence prosecutors obtained — that the case merited a trial.
And trials in the U.S. include new information all the time.
Juliet Sorensen is a law professor at Northwestern and a former federal prosecutor in the Northern District of Illinois. When I asked her about the concept of introducing new documents or witnesses at a trial — information that did not surface in a grand jury — she told me it is “frankly unsurprising and, in a way, to be expected that after charges are brought to light, additional witnesses step forward and additional evidence is uncovered.
“And so while any good investigator or prosecutor would seek to do as complete a job as possible before presenting the evidence to a grand jury, you should always expect at least the possibility of that additional evidence coming forward,” she said.
William Howell is a professor of American politics at the University of Chicago Harris School of Public Policy. He noted that this is McConnell’s second “big power move,” with his blocking a vote on ex-President Barack Obama’s Supreme Court nominee — the Lincolnwood-raised Merrick Garland — the first.
So far on Tuesday - as the Senate day melted into the late night - McConnell, with GOP votes, tabled moves by Senate Democratic Leader Chuck Schumer, D-N.Y. to force witnesses and documents.
Said Howell, “There is more to learn here, if you had any vague interest in actually learning what happened.”
That is, if.