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January 23, 2020

Note from Elie: Sober people don’t refuse to blow into the DUI machine.

In the great state of New Jersey — where I live and worked for five years as the head of the Attorney General’s criminal division — there is a law that automatically imposes penalties on any person who refuses to take a breathalyzer test when a police officer makes a traffic stop on suspicion of drunk driving.    The logic behind the law is perfectly Jerseyan in its fusion of common sense and brute force: if you’re hiding something, you’re hiding it for a reason. Sober people don’t refuse to blow into the DUI machine. 

Watching the impeachment trial, it’s as if Majority Leader Mitch McConnell got pulled over for weaving in and out of traffic while driving 95 on the Turnpike and told the state trooper to take his fancy drunk driving breath machine and jam it.  Only in the United States Senate, unlike the Garden State, there is no immediate penalty for hiding the obvious truth.

McConnell’s motivation — and, remember, he has openly admitted that he is acting in “total coordination” with the White House — is plain.  He fears the full truth, so he will suppress it.  And who can stop him? He’s majority leader, and if he keeps 51 of his 53 Republican charges in line, McConnell will realize his dream of an evidence-free trial.  The Founders would have been so proud.

Let’s step back and survey the full extent of obstructionism on open display by Trump and McConnell.  The House Intelligence Committee served 71 subpoenas or requests for information; the Trump administration complied with none of them, and turned over a grand total of zero pieces of paper, zero e-mails, zero texts.  And the White House directed all executive branch officials not to testify. Following those orders, National Security Adviser John Bolton, Secretary of State Mike Pompeo, acting White House Chief of Staff Mick Mulvaney, and Office of Management and Budget official Michael Duffey defied subpoenas or declined requests to testify.  

McConnell certainly has the ability to subpoena and obtain this critical evidence for the impeachment trial.  But he has angrily refused to do so, and seems hellbent on preventing any witnesses at all from befouling the impeachment trial with actual testimony.  After all, why would the “world’s greatest deliberative body” — and it may be time to shelf that title, for just a bit — want to consider relevant evidence touching directly on the key issues at hand?

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McConnell hardly even offers a straight-faced reason for his obstructionism.  The best Senate Republicans can do is to say, essentially, the House should have gotten this information and it’s not our job.  That argument is nonsense, foremost because the House tried to get the evidence, but the White House blocked it. Nor are there any legal or other requirements that the evidentiary record is hermetically sealed once the House votes to impeach.  Indeed, prosecutors typically continue to investigate after indictment, before trial, during trial, and right up until the moment the jury takes the case to deliberate. It does not matter when the evidence comes to light. Generally, if it’s relevant, then it’s fair game. 

It is fair to second-guess the decision by House Democrats to forego lengthy court battles and instead forge ahead without the full slate of witnesses (while seeking and obtaining an Article of Impeachment for Obstruction of Congress).  Democrats certainly could have chosen to go to court to enforce their subpoenas before impeaching. But doing so would have come with a major cost: delay. For reference, Democrats filed suit to enforce a subpoena on former White House Counsel Don McGahn in August 2019 and more than five months later, we don’t have a ruling even from the intermediate federal court of appeals.

Barring a political miracle, Trump will not be convicted.  But he, McConnell, and others will never be able to escape the fact that they fought like mad to keep the truth hidden.  Whether the full truth would have helped or hurt Trump and McConnell’s cause, we don’t yet know for sure. But that good Jersey common sense can help answer the question: you don’t hide facts that are good for you.

I’ll close with some words of wisdom from the great Jersey hip hop group Naughty by Nature: “You can run but you can’t hide, you can’t go far – no matter where you go, there you are.” (I’ll leave the higher-brow Springsteen stuff to a higher-brow Jersey guy, Mr. Bharara).  McConnell and the 52 other Senate Republicans can keep all the evidence under wraps, for now, if they want to badly enough. They almost certainly can keep it hidden for the duration of the impeachment trial. They have the majority, after all.

But the facts will come out — somehow, someway, someday.  Maybe through Freedom of Information Act lawsuits (which already have uncovered crucial evidence previously withheld by the Administration), maybe through current or former officials deciding to talk, maybe through Bolton’s book, maybe through future administrations releasing the information.  But it will come out. And when that happens, then every Senator who votes to keep evidence out of this trial will have to answer — to a voting constituency and to the history books — for his or her actions.

Stay Informed,