The Democratic leaders may soon learn the wisdom of Oscar Wilde’s warning that “when the gods wish to punish us they answer our prayers.”
House Speaker Nancy Pelosi (D-Calif.) has so far delayed the submission of the impeachment of President Trump to the Senate to force a trial with witnesses. Senate Minority Leader Charles E. Schumer (D-N.Y.) has declared any trial of Trump without witnesses to be nothing less than the “most unfair impeachment trial in modern history.” Leaders of both parties know that impeachment often boils down to one unpredictable element: witnesses.
For those who have the votes, witnesses are an unnecessary risk. For those who don’t, they are an absolute necessity.
On Friday, Schumer insisted that “there is only one precedent that matters here: that never, never in the history of our country, has there been an impeachment trial of the president where the Senate was denied the ability to hear from witnesses.”
Put another way, Schumer does not have the votes and thus needs the witnesses. Schumer now wants to hear from the witnesses who never testified before the House, which rushed through an impeachment without seeking to compel testimony from key officials. One of those, former national security adviser John Bolton, said Monday he would testify before the Senate if subpoenaed.
In the Clinton impeachment trial 21 years ago, Schumer and the Democrats opposed hearing from witnesses. In that impeachment chapter, the Democrats had the votes. Lacking the votes this time, the unpredictability of witnesses now appeals to Schumer and his party. But only up to a point. Schumer has opposed the suggested Republican witnesses as a mere “distraction.”
One witness in particular could prove not just a distraction but a disaster: Hunter Biden.
In a conventional trial, Biden would be a relevant defense witness. Biden’s testimony would have bearing on a key question in an abuse-of-power trial. Trump insists that he raised the issue of Hunter Biden’s relationship with a Ukrainian energy firm to the Ukrainian president as part of an overall concern he had about ongoing corruption in that country. If that contract with the son of a former vice president could be shown to be a corrupt scheme to advance the interests of a foreign company or country, it might be Trump’s best defense.
Under Federal Rule of Evidence 401, courts will often review possible testimony under the standard of whether “it has a tendency to make a fact more or less probable than it would be without the evidence.” Even before the adoption of the Bill of Rights, Congress enacted a statute reaffirming the right of the “defense to make any proof that he can produce by lawful witnesses” in cases of treason and capitol cases. This right to present a defense has been repeatedly reaffirmed by the Supreme Court including in the 1967 opinion in Washington v. Texas, where the Court ruled that “the right to offer the testimony of witnesses and to compel their attendance, if necessary, is in plain terms the right to present the defense, the right to present the defendant’s version of the facts . . . Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense.”
Trump’s position is that he did not arbitrarily ask a country to investigate a possible political rival. Had Trump called for an investigation into Sen. Elizabeth Warren’s (D-Mass.) husband, for example, without a scintilla of proof of corruption, it would be entirely indefensible. However, the Biden contract was so openly corrupt it would have made Jack Abramoff blush. Even in the United States, lobbyists and companies will often give family members undeserved lucrative jobs and contracts to curry favor with powerful politicians. Overseas, it is standard operating procedure. Oleksandr Onyshchenko, a businessman and former member of the Ukrainian parliament, said Biden was made a director “to protect (the company)” from investigation by U.S. and Ukrainian officials. Even Hunter Biden admitted that the position was given to him because of his father. Hunter Biden was paid at least $50,000 a month and possibly more.
Biden stepped down from the Burisma board only when his father announced his candidacy in April 2019. Ukraine assured Trump that it was cracking down on corruption when, just a few months earlier, Biden had been receiving monthly retainers from Burisma.
If the Biden contract was an ongoing corrupt effort to secure influence and money from the United States, Trump’s reference to it in a discussion of corruption has a possible public purpose. While one can certainly conclude that self-dealing by the president is a plausible explanation, there is no question that the testimony of Biden would be relevant.
Schumer knows that neither Biden nor his contract will show well under the glare of a public impeachment trial. In addition to his glaring lack of relevant experience, the younger Biden has a checkered history – from drug addiction to being thrown out of the Naval Reserve – that would have led most companies to avoid him. The trial might also force the public to consider Joe Biden’s failure to ask about his son’s dubious foreign dealings. Joe Biden himself seems delusional in claiming, “No one has said my son did anything wrong.”
For the Democrats, witnesses are a dangerous game. The worse that Hunter Biden looks, the better Trump looks in raising the contract. That is the problem with asking for witnesses in a Senate trial. They can take you to places you might prefer not to go.
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Jonathan Turley is the chair of Public Interest Law at George Washington University and served as the last lead counsel in an impeachment trial before the Senate in defense of Judge G. Thomas Porteous Jr.