How the House lost the witness battle along with impeachment | TheHill - The Hill

NBC host Chuck Todd recently asked guests if supporters of President TrumpDonald John TrumpSenate Democrats outraise Republicans, but GOP has cash edge Comey op-ed: US democracy won't 'come apart' if Trump isn't removed from office Protesters flock to the Capitol after Senate impeachment votes MORE just want to be lied to. It is a question that many in the media would never ask about Democrats, even in the face of overtly false claims. This week is an example.

After the Senate rejected witnesses and effectively ended the impeachment trial on Friday, the media uniformly ignored the primary reason for the defeat, which is the insistence of House leaders to impeach Trump by Christmas. Critics of the president simply do not want to hear that the blind rush to impeach guaranteed not only an acquittal but an easy case for acquittal. After all, it is important for some in the media to maintain that fools dwell only in Republican red states.

When I appeared before the House Judiciary Committee in November, I opposed four proposed articles of impeachment as legally flawed and said that two would be legitimate if proved. The House Judiciary Committee rejected the challenged articles and accepted the two articles on abuse of power and obstruction of Congress.

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That left one fundamental area of disagreement. I warned the panel that it was rushing to a failed impeachment by insisting on a vote by Christmas. This was the shortest impeachment investigation in American history, as well as the narrowest grounds and thinnest record for trial. I noted that witnesses such as former national security adviser John BoltonJohn BoltonProtesters flock to the Capitol after Senate impeachment votes Senate GOP passes resolution setting up end of Trump trial Pelosi calls senators who voted against trial witnesses 'accomplices to the President's cover-up' MORE had indicated they were willing to testify if subpoenaed, and that just a couple months would likely secure additional testimony and supportive court orders. Indeed, in the impeachment case of President Nixon, it took only a couple of months to go all the way to the Supreme Court for a final decision.

Absent such a delay, this impeachment was guaranteed to fail because of an incomplete and insufficient record. Yet the House insisted this was a “crime in progress” and there was no time to delay a submission to the Senate. It then immediately contradicted its rationale by waiting more than a month to submit articles of impeachment to the Senate. The House could not have made it easier on the president and his legal team.

Yet the media ignored the obvious catastrophic blunder by House Speaker Nancy PelosiNancy PelosiPelosi: Trump's expanded travel ban is 'outrageous, un-American' and threatens 'rule of law' Pelosi calls senators who voted against trial witnesses 'accomplices to the President's cover-up' House to vote on disapproval resolution of Medicaid block grants MORE and her leadership. They instead suggested this was all some grand and brilliant scheme. They even credited the strategy with Bolton coming forward to say he would testify with a subpoena, even though the same offer was made during the House investigation.

The media also largely ignored the unexplained decision by the House to withdraw a subpoena for Charles Kupperman, Bolton’s top aide. Kupperman had gone to court as a prerequisite for any testimony, the same position taken by Bolton. Before the courts could rule, the House mooted the case by withdrawing the subpoena. That made no sense, and the court dismissed the case after saying that the House appeared to have no interest in the witness.

No harm would have come from pursuing Kupperman’s testimony. Yet lead House impeachment manager Adam SchiffAdam Bennett SchiffImpeachment managers make final arguments for witnesses Trump seizes on viral clip of Nadler giving final answer over Schiff Three ways the end of the impeachment trial could play out MORE offered a facially dubious explanation: Kupperman had said he would litigate the issue. If Kupperman truly wanted to drag out litigation, he simply could have refused to appear before the House and waited for it to seek to compel his testimony. Instead, he said he simply wanted a court order in favor of testifying, for his own protection. Moreover, the House continued to seek to compel the testimony of former White House counsel Don McGahn, despite his continued litigation. It won that case just as the House was voting on impeachment.

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As these blunders by the House became more and more obvious, the effort to excuse them became more and more absurd. One of the common defenses heard in the media was that it did not matter, given the Senate Republican majority. Yet if the House was certain to lose on that record, why end the investigation prematurely with a case that would be easy to defeat? By waiting just a few months, the record certainly would have been strengthened and likely greatly enhanced. Instead, House Democrats surrendered control of the record to the opposing party and adopted a ridiculous strategy of demanding concessions to get an impeachment that the Senate majority loathed. That strategy failed miserably.

This is not Monday morning quarterbacking. This very series of events was expressly laid out to the House before the vote, and Democrats chose certain failure over completing their case. There was no reason to expect that Republicans would assist House managers in making their case, particularly in calling witnesses not subpoenaed by the House. Democrats opposed any witnesses in the Clinton impeachment trial and voted as a bloc for a summary acquittal. There was no reason to expect Republicans to adopt a different approach.

We will never know how this impeachment trial would have unfolded if the House had waited to secure additional testimony and court orders. One thing is certain, however: The case against President Trump could only have become stronger. The vote for witnesses failed by one senator for a tie and by two for a majority; a more complete record could well have tipped the balance — and certainly would have made the vote against witnesses more difficult for some senators. Instead, the House’s submission of an incomplete record and its failure to subpoena witnesses such as Bolton made it easy for the Senate to refuse to do what the House did not attempt.

None of the explanations offered by House Democrats make any sense. That, however, does not matter. As NBC’s Todd said of Trump supporters, people “want to be lied to sometimes. They don’t always love being told hard truths.” The hard truth is that House Democrats lost this case the minute they rushed an impeachment vote — and they knew it. With the approaching Iowa caucuses, they preferred a failed impeachment rather than taking a few months to build a more complete case against Trump, a case more difficult to summarily reject. That is the hard truth.

Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as a witness expert in the House Judiciary Committee hearing during the impeachment inquiry of President Trump.

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How the House lost the witness battle along with impeachment | TheHill - The Hill
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