How Democrats can build a better case to impeach President Trump
House Democrats have done a masterful job of holding hearings with testimony from distinguished diplomatic and national security witnesses on the alleged quid pro quo that President Trump sought from Ukraine. The problem is that the record is incomplete and conflicted on critical points. The question is whether Democrats want a real or a recreational impeachment. A real impeachment case can be made, but to make it, they will have to reschedule, reframe, and repeat their House investigation.
As compelling and upsetting as much of the testimony has been, the record still lacks direct evidence of a quid pro quo on American military aid to Ukraine. Out of all the House Intelligence Committee witnesses, European Union Ambassador Gordon Sondland was the only person to speak directly to President Trump on the issue, testifying that Trump denied any quid pro quo and that his own presumption of a quid pro quo was connected to a White House meeting with the Ukrainian president and not the aid. The transcript of the phone call between Trump and the Ukrainian president does not state a quid pro quo, and the only two other direct conversations on the record have Trump denying a quid pro quo.
While a September conversation between Trump and Sondland can be discounted as coming after the whistleblower complaint was sent to Congress, an August conversation with Senator Ron Johnson occurred before the submission. Johnson was upset with the delay in aid and, when he asked if there was a quid pro quo, he testified that the denial by Trump was “adamant, vehement, and angry” and contained “more than one expletive.” Those conflicts only highlight the still undeveloped record.
The hearings seemed to studiously avoid every witness with firsthand knowledge of the issue, including personal attorney Rudy Giuliani, former national security adviser John Bolton, Secretary of State Mike Pompeo, White House chief of staff Mick Mulvaney, and others. It was like hearing the play “Hamlet” entirely from the view of his friends Rosencrantz and Guildenstern. At some point, you really have to hear from the royal family.
If Democrats continue with their plan to impeach Trump by the end of December, they would be presenting the thinnest record and fastest impeachment investigation in history. Democrats assert that the record is more than 2,670 pages long. In comparison, the report by Kenneth Starr to Congress summarizing the evidence in the Clinton impeachment was 445 pages, with more than 8,000 pages of supporting documents just on the part dealing with the Monica Lewinsky allegations. The grand jury record and other documents from the investigation were even larger.
Basing an impeachment on such an undeveloped record would relieve senators of the need to seriously consider the underlying alleged acts. They could vote to acquit on the basis of an incomplete record. In other words, Democrats are not just making it easy on themselves but easy on their Republican counterparts by rushing a House vote. None of this means that a case cannot be made, but it has to be proven. You cannot blame partisan voting in the Senate if you submit a record that omits key witnesses while inviting conjecture over poorly defined criminal acts.
This of course assumes that Democrats seriously want to remove Trump from office. Instead, it all could be a failure by design in the hope of losing the case in the Senate in order to energize the Democratic base and win back control of the Senate next November, all while denying Republican voters a rallying point. Assuming that Democrats actually would like to remove Trump from office, how could the House prove such a case? The answer is those three simple steps of reschedule, reframe, and repeat.
First, the expedited vote by the end of December is simply absurd. It is not clear why Democrats have not even subpoenaed key witnesses or taken the time to force that testimony. After doing little on impeachment for more than two years, there is suddenly a blind rush to a vote while leaving a line of uncalled witnesses in the wake. While the House has spent some considerable time litigating over tax records, it has refused to go to court to enforce any witness subpoenas for the investigation. It easily could do so and ask for expedited review from the courts. If it had done this at the outset, we would have had the first round completed by now. It can still get through the trial court and the likely appellate court on an expedited path by next spring. However, Democrats have burned months without subpoenaing such testimony. They should do so without further delay.
Second, this investigation should have been left to the House Judiciary Committee from the outset. It should be transferred to that panel and the matter reframed to fit controlling legal interpretations and case law. The current bribery and obstruction claims are forced and unsupported. The Supreme Court unanimously rejected such broad interpretation of bribery in a prior case. Likewise, the obstruction allegation seems based on the exercise of the right of the administration to seek judicial review. After setting such a short period for its investigation, the House would impeach a president for seeking judicial review during that brief period. The missing witnesses may be able to establish the elements of these crimes, but they are missing from the abridged record. What remains is an abuse of power case requiring a broader evidentiary foundation to stick.
Finally, new testimonial hearings should be held, and uncalled witnesses should be subpoenaed. The House can then ask for expedited review from the courts. If Trump defies a final order, then that would be an undeniable impeachable offense. If witnesses such as Giuliani appear and invoke the Fifth Amendment right to refuse to testify, they can be given “use and derivative use” immunity to compel testimony. This form of immunity would not bar the use of the extensive evidence already gathered if they were later prosecuted. If they then refuse to testify or commit perjury, then they can be prosecuted. This could all be finished by next spring.
It remains to be seen if an actual case can be proven with these witnesses, but this would be an opportunity for a real case for removal in the Senate. However, they have a year to make that case. The view that it is untoward to impeach a president close to an election is simply absurd. The election has nothing to do with an impeachment. The election is about the next term. A legitimate impeachment can happen the day before an election. That is certainly better than leaving alleged impeachable acts without a constitutional remedy. So the choice rests with the House. It has made the case that impeachable offenses may exist. Now it has to prove them.
Jonathan Turley (@JonathanTurley) is the chair of public interest law at George Washington University and served as the last lead counsel in a Senate impeachment trial in defense of Judge Thomas Porteous. He has testified with other constitutional experts in the Clinton impeachment.