After he and his House Democratic colleagues transmitted the articles of impeachment to the Senate, House Judiciary Committee Chairman Jerry Nadler said if the upper chamber doesn’t obtain the witnesses and documents the House impeachment managers want, it is engaged “in an unconstitutional and disgusting cover-up,” indeed, would be complicit “in the president’s crimes.”
It isn’t clear which part of the Constitution mandates that the Senate do whatever House managers say, nor what alleged crimes President Trump committed, but let’s put that aside and chalk up the chairman’s rhetoric to an excess of sorrow and prayerfulness.
What Nadler and other Democrats are insisting on is that the Senate take up its investigative baton. In other words, the body controlled by the party that was desperate to impeach Trump wants to outsource its work to the body controlled by the party that rejects Trump’s impeachment.
This is a cockamamie demand that is of a piece with the House’s attitude to the Senate’s proceedings: We are going to rush the impeachment but don’t dare rush the trial. We are going to impeach without key witnesses and documents, but if you hold a trial without key witnesses and documents, you are engaged in malfeasance. We didn’t want to deal with knotty questions of privilege and potential litigation arising from them, you are obliged to.
The House has been in an awkward situation ever since the pace of its investigation diverged from the pace of its impeachment.
The time that Speaker Nancy Pelosi wanted to devote to impeaching Trump over Ukraine fell short of the time it would take to thoroughly investigate Ukraine, so impeachment took precedence and the investigation gave way. The House scored some meaningful witnesses, especially US Ambassador to the European Union Gordon Sondland, but in a more deliberate process, it would have kept working its way up the food chain.
Since there wasn’t time to do this before a pre-Christmas impeachment, the House didn’t try. It failed to subpoena former National Security Adviser John Bolton, whose testimony is now said to be absolutely central to the integrity of a Senate trial.
When Bolton deputy Charles Kupperman went to court over his House subpoena — seeking definitive guidance on whether privilege applied to his potential testimony — the House dropped the subpoena in a transparently cynical move. It feared any delay and perhaps an unwelcome ruling by the judge. So it forgot about getting the testimony of a witness it had wanted.
Even now, the documents raise questions that would be natural to answer in an impeachment inquiry — if the inquiry hadn’t already ended.The disturbing Lev Parnas documents just turned over to the House and released publicly are a boon to the Democrats. But the House impeached about a month before getting them. Indeed, if Pelosi hadn’t delayed transmitting the articles in a futile attempt to pressure Senate Majority Leader Mitch McConnell, the Senate trial could conceivably have ended before the release of the documents. Pelosi’s defenders say this is a vindication of her stall, but it’s more of an indictment of her rush to impeach.
If the House hasn’t managed to keep its story straight over the past month, Senate Republicans aren’t making their best case on witnesses, either. Their most compelling argument would be that we already know the broad outlines of what Trump has done, so more fact-finding is unnecessary, and the Senate only has to decide the threshold question of whether his conduct rises to the level of removal.
But if Republicans maintain Trump didn’t engage in any misconduct, it raises the natural question why Bolton and others shouldn’t come testify and put to rest the allegations against him.
The fact of the matter is that this is a most political impeachment because it’s happening in the run-up to an election less than a year away. Pelosi wanted to rush impeachment, in part, to get it over with as soon as possible for her vulnerable members. Meanwhile, McConnell and Senate Minority Leader Chuck Schumer will be engaging in a political joust, with McConnell trying to hold together and protect his caucus and Schumer trying to split it. Whether there are witnesses will depend on the contours of this contest. Either way, the republic will survive.