Nancy Pelosi made sure that no momentum was lost after Wednesday’s hearing in the House Judiciary Committee by announcing on Thursday morning that “Sadly, but with confidence and humility, with allegiance to our Founders and our hearts full of love for America, today, I am asking our Chairmen to proceed with articles of impeachment.”
She didn’t offer any more detail about further hearings or the schedule, but it is widely assumed that the House of Representatives will impeach the president before the end of the year. The House is supposed to recess for the Christmas break on December 20, so that would seem to give them two weeks to draft articles, pass them through the Judiciary Committee and then hold a vote on the full floor of the House.
Rep. Joaquin Castro of Texas, who serves on the House Intelligence Committee, stated on MSNBC that he expects the Judiciary Committee to hold at least one more hearing before getting down to business on drafting the impeachment charges, but he offered no insight into what that hearing will involve.
There are a million questions people want answers to, but answers are hard to come by. We do not know if obstruction charges related to the Mueller investigation will be included. We don’t know if any additional witnesses will be called or subpoenaed. We don’t know what the rules or structure will be in a Senate trial.
One thing I’d like to say right now at the outset is that I’d like the House managers who will prosecute the case in the Senate to ask Chief Justice John Roberts to demand the presence of John Bolton, Mick Mulvaney, Rudy Giuliani and Mike Pompeo. These witnesses, and a few others at the State Department and Office of Management and Budget, are key to understanding the full parameters of the Ukraine scandal, and there is no reason that the Chief Justice of the Supreme Court, who presides as the judge of a Senate impeachment trial, cannot unilaterally enforce congressional subpoenas on the spot. He can also rule on any executive privilege claims on the spot.
The refusal of these witnesses to cooperate with the investigation in the House will form one of the articles of impeachment. However, that doesn’t mean that their delaying strategy should be allowed to benefit the president at trial.
I can think of no conceivable claim that would justify a fact witness refusing to appear at an impeachment trial.
Article I, Section 3 of the Constitution provides:
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present.
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
There is no need to go through the courts and all the appeals processes for non-cooperating witnesses because that is designed for “Indictment, Trial, Judgment and Punishment, according to Law.” It has nothing to do with an impeachment trial that the Senate has the “sole Power” to try and where the Chief Justice has the sole responsibility to preside. So, John Roberts can compel any witness he wants to appear and he can judge to what degree witnesses can decline to give evidence and on what basis. I can’t see how he could reasonably deny the House the right to call witnesses who indisputably have direct knowledge of the High Crimes, misdemeanors and bribery that will be alleged in the articles of impeachment.
The Republicans may use the same logic to compel people like Joe and Hunter Biden, Adam Schiff and the whistleblower to appear. However, the Bidens are not fact witnesses, Schiff enjoys certain presumed privileges as a congressman, and the whistleblower has some statutory protections. Nonetheless, the decision on these matters will be up to John Roberts, and he can make sure that the American people hear all the relevant evidence or he can act in a nakedly partisan manner. He should at least be compelled to make that choice in the most visible way possible.