Note From Elie: Clinton Model Underscores the Need for Witnesses

Note From Elie: Clinton Model Underscores the Need for Witnesses

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WASHINGTON, DC JANUARY 16: Senate Majority Leader Mitch McConnell (R-KY) exits the Senate chamber after Senators were sworn in for the impeachment trial at the U.S. Capitol on January 16, 2020 in Washington, DC. On Thursday, the House impeachment managers read the articles of impeachment against President Trump in the Senate chamber and the chief justice of the Supreme Court and every senator was sworn in. (Photo by Drew Angerer/Getty Images)

Dear Reader, 

Senate Majority Leader Mitch McConnell has steadfastly resisted Democratic calls for witness testimony at the Senate impeachment trial of President Donald Trump.  Despite efforts from Speaker of the House Nancy Pelosi, Senate Minority Leader Chuck Schumer and others, McConnell — secure in the power that his 53-member Senate majority confers — has held firm.  Rather than agreeing to witnesses, McConnell instead has espoused the procedural model used in the 1999 impeachment trial of President Bill Clinton: first hear legal arguments and then decide, during the trial, whether witnesses are warranted.

At first glance, McConnell’s call to adopt the “Clinton model” seems like a political masterstroke: “Hey, let’s do it just the same as last time, when a Democratic president was on trial.”  Who could argue with that? But it seems McConnell hasn’t worked it all the way through. If anything, the Clinton model underscores just how badly witnesses are needed at the Trump impeachment trial.

When the Senate convened to try Clinton in January 1999, it already had a complete — and arguably more than that — factual record before it.  Independent Counsel Ken Starr had, over more than four years of investigation, obtained statements (either through the grand jury or investigative interviews) from every conceivable relevant witness.  Starr’s team spoke not only with Monica Lewinsky, but also with her aunt, her friends, and an ex-boyfriend.  According to Peter Baker’s indispensable history “The Breach,” Starr’s investigators talked to Lewinsky’s hairdressers, White House window washers and painters, and witness Kathleen Willey’s mail carrier, dentist, and the funeral director who had buried her late husband.  Starr even went to court to compel testimony from Secret Service agents who provided security to Clinton, defeating the asserted “protective function” privilege.  

Here, by contrast, several of the most central witnesses have been silenced or remained mum on their own volition.  Trump’s personal counsel and point man on Ukraine, Rudy Giuliani, has defied a House subpoena for documents.  We have not heard from other central players including former National Security Advisor John Bolton (who now says he is willing to testify if subpoenaed by the Senate; Trump has vowed to invoke executive privilege to try to silence him), acting White House Chief of Staff Mick Mulvaney, and Secretary of State Mike Pompeo.  In total, the House served 71 subpoenas or requests for information.  The White House blocked all of them and produced not a single shred of information in response.


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So in the Clinton case, the Senate already had all the information it could ever want or need, and then some — and still called witnesses.  The Senate heard testimony from three crucial witnesses — Monica Lewinsky, Vernon Jordan and Sidney Blumenthal (all of whom testified offsite; the Senate then viewed video clips of their testimony). 

But in the Trump case, we still have massive evidentiary holes, largely created by Trump’s own obstructionism (which earned him an Article of Impeachment for Obstruction of Congress).  If witnesses were appropriate in the Clinton case, they are indispensable now.

So why is McConnell walking down this path?  We know two things with near certainty: McConnell is a savvy political tactician, and he does not want witnesses at trial.  The answer, I think, is that he’s setting a trap. McConnell wants to follow the Clinton model — until he doesn’t. McConnell likes the part where trial gets underway with no specific promises on witnesses.  But he doesn’t like the part where the Senate decides to call witnesses. So he will do everything in his power to bait and switch the Democrats at the moment of truth.

It will fall to Democrats, then, to anticipate McConnell’s savvy (or, depending on perspective, deceptive) chess game.  They have two potential counter-moves. The easy way is to win over four Senate Republicans and form a majority who will compel witness testimony, whether Trump or McConnell like it or not.  Senator Susan Collins reportedly is working with a small group of her fellow Republican senators towards that goal, and gaining momentum.  Collins has feigned bipartisanship before (most notably when she waffled dramatically on Justice Brett Kavanaugh’s confirmation before staying home with Republicans and voting yes).  Maybe she will cross the aisle this time. 

If not, then Democrats will need to do it the hard way: by directly petitioning Chief Justice Roberts to compel witnesses, whatever McConnell or the Senate majority may want.  I believe Roberts has this power; Senate rules permit the Senate itself to overrule Roberts on evidentiary issues, but the Constitution broadly dictates, without reservation or qualification, that the chief justice “shall preside” at a presidential impeachment trial.  In a matchup of the Constitution’s explicit language versus the Senate’s own self-serving internal operating procedures, the Constitution wins, hands down.

For now, McConnell is swaggering down the road towards a trial whitewash, unbowed by all manner of resistance.  But his power ultimately is not absolute. By invoking the Clinton model, McConnell could be setting himself up for an ugly fall.

Stay Informed, 

Elie

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