Former national security adviser John Bolton’s potential first-hand evidence — allegedly chronicled in his forthcoming book about his time in the administration and hinted at in a phone call with House Foreign Affairs Committee Chairman Elliot Engel in September — about President Donald Trump’s actions at the heart of the abuse of power impeachment article mean that two battles will most likely be fought in the Senate this week.
While the focus has been on the crucial first fight over whether the Senate will subpoena Bolton (and other witnesses) at all — sources said Wednesday that Senate Majority Leader Mitch McConnell, R-Ky., has admitted he doesn’t have the votes to prevent — an equally critical fight will then ensue over the ground rules under which any witnesses would testify.
If the Senate does, as seems increasingly likely, allow witnesses, the artificial protocol employed as a compromise in President Bill Clinton’s trial must be discarded. Instead witnesses must testify live and in person on the Senate floor.
In the Clinton impeachment, the Senate adopted a circumscribed and artificial procedure allowing senators to view and consider as evidence only selected excerpts of previously videotaped depositions of three witnesses: Clinton accuser Monica Lewinsky and Clinton associates Vernon Jordan Jr. and Sidney Blumenthal. No witness appeared in person in the Senate, and senators were not allowed to evaluate the demeanor of the witnesses in person or submit questions to clarify any of the witness’s packaged testimony.
McConnell has, so far, more or less adopted the Clinton impeachment trial template and thus could be expected to insist on the deposition model for Bolton’s testimony, let alone any other impeachment trial witness.
Doing so, however, would frustrate a full airing of the evidence, fail to allow senators to clarify testimony, be inconsistent with normal federal trial procedures for using depositions rather than live witnesses, and break with decades of impeachment protocols predating the Clinton impeachment.
The reasons the Senate — in a 70-30 vote — opted not to hear from live witnesses appear to be unique to the nature of the allegations against Clinton. After a Senate vote defeating a motion to dismiss articles of impeachment against the president, the Senate, under the majority leader at the time, Trent Lott, R-Miss., adopted Resolution 30, allowing the depositions to be taken of the three named witnesses under extremely limited circumstances. The tawdry nature of the charges were a factor: Lott rebuffed the Republican House managers’ proposal to have Lewinsky testify in person in the Senate (after much was made of her affair with the president during the House hearings) because, he told NPR in 2019, “The Senate is a unique place which needs to be, you know, taken care of and preserved for posterity.”
Similarly, then-Senate Minority Leader Tom Daschle, D-S.D., suggested to The Atlantic in 2018 that Democrats supported the measure “to keep the sordid nature of some of this out of the public spectacle, to the extent we could.”
The deposition model introduced in the Clinton impeachment to limit public testimony on the “sordid nature” of the case would obviously be flawed if applied to John Bolton’s testimony about Trump’s actions toward the Ukraine. Under anything like Resolution 30, House managers could not question Bolton about any personal notes that he might produce in response to subpoenas like those of House manager Adam Schiff, who is seeking Bolton’s notes, or mark them as exhibits. But if these notes exist and are provided, they must be allowed in the trial record.
They would have been, had an impeachment trial against President Richard Nixon gone ahead. In 1974, in preparation for an anticipated Senate impeachment trial, the Senate parliamentarian prepared a report titled, “Procedure and Guidelines for Impeachment Trials in the United States Senate.” The report stated that “the Senate compels attendance of witnesses and forces obedience to its orders. It can order witnesses to produce papers.”
The report further identified that witnesses had testified in prior impeachment trials, sometimes standing in the Senate chamber so as to be heard by all senators and that, in some cases, a large number of witnesses testified. In the impeachment of President Andrew Johnson in 1868, for instance, 25 prosecution witnesses and 16 witnesses for the president testified in person in the Senate.
That was not just a historical anomaly: In the trial of federal Judge Walter Nixon in 1989, four days of hearings were conducted before a panel of senators at which 10 witnesses testified. When Nixon sued, claiming his impeachment was unfair because the evidence was initially heard only by a Senate committee, the Supreme Court in 1993 unanimously ruled in favor of the Senate’s actions.
Chief Justice William Rehnquist, writing for the majority, stressed that the Constitution allowed “the Senate the final authority to determine the meaning of the term ‘try’ in the Impeachment Trial Clause.” He added, “the word ‘try’ in the Impeachment Clause does not provide an identifiable textual limit on the authority which is committed to the Senate.”
In other words, the Senate can make its own rules, and is not beholden to hewing to the rules a prior Senate set before in markedly different circumstances; this Senate should see, hear and evaluate the testimony of John Bolton and any other witnesses appearing before them in person.
Furthermore, the substitution of a videotaped deposition excerpt for live testimony should be an exception in any impeachment, not the rule. For example, in a federal civil trial, the testimony of a nonparty witness such as Bolton must be in person unless the witness is unavailable, dead, lives more than 100 miles from the courthouse, is infirm or elderly or could not be subpoenaed. None of those exceptions would apply to Bolton in an ordinary civil lawsuit in Washington.
Furthermore, if Bolton (and other witnesses) appear in person, senators should be able to submit questions in writing for Chief Justice John Roberts or either side’s counsel to ask. Again, the practice in federal courts is instructive: After empirical studies, a growing consensus has emerged that jurors in federal court trials should be allowed to submit their questions in writing to the judge to be asked, if appropriate, to a witness. Judges and jurors have been polled and agree that this enhances jurors’ understanding of the issues.
If the Senate does indeed vote to hear Bolton or other witnesses — as it must to ensure a fair trial — those witnesses should appear in person to be examined by counsel for both parties. That is not only for the benefit of the 100 voting senators, but for the American voters, who may ultimately decide the fate of both Trump and the senators who are ultimately voting whether to convict him on the articles of impeachment. If Republicans truly believe that there is no reason to convict the president, they should prove that to the American people — 75 percent of whom want to hear from witnesses (including nearly half of Republicans), according to the most recent poll.
- Michael Conway served as counsel for the U.S. House Judiciary Committee in the impeachment inquiry of President Richard M. Nixon in 1974. In that role, he assisted in drafting the committee’s final report to the House of Representatives in support of the three Articles of Impeachment adopted by the committee. Conway is a graduate of Yale Law School, a fellow of the American College of Trial Lawyers and a retired partner of Foley & Lardner LLP in Chicago.
This piece was first published by NBC Think.
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