Republicans couldn't have created a more twisted trial of the president if they’d named Kafka to the defense team.
What a bind they’ve put Democrats in. To fight back against White House lawyers’ main objection to the House’s articles of impeachment—that the officials in the room where the impeachable acts happened did not testify—Democrats have to plead for those witnesses to testify now. And that gives Donald Trump’s political defense a favorite talking point: If Democrats have such a strong case (which in fact they do), than why are they spending the first two days of the trial begging for more evidence?
Easy. While Republicans insist that there’s no case without witnesses and that it’s too late to call them, they neglect to mention that it’s Republicans who demanded and got witnesses in Clinton’s impeachment, including the president himself. Sen. Lindsey Graham, who’s ripping into Democrats now for supposedly creating a “complete circus” by demanding witnesses, was a House impeachment manager then.
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He and his fellow Senate Republicans also don’t mention that the first-hand testimony they contend that there’s no case without could only come from the first-hand witnesses Trump has blocked from testifying. It’s like murdering your wife and then complaining about being a widower. A refrain of White House Counsel Pat Cippolone’s presentations has been how “ridiculous” it is to expect Republicans to gather evidence the House didn’t take the time to collect. I lost count of exactly how ridiculous it was at about his 20th time.
The Democrats’ dilemma is that it's almost impossible to demand something without creating the impression that you need it. They’ve been here once before. For two years, they placed their hopes of holding Trump accountable on the Mueller investigation, that is, until it came out. Almost immediately, Democrats asked for more, more, more: to hear from White House Counsel Don McGahn in person even though he'd delivered the goods in his deposition; for additional documents; for documents already provided to be un-redacted; for Special Counsel Robert Mueller to come to the Hill for what they hoped would be a dramatic reading of his report.
Lost in all this complaining was Mueller flatly saying that his report did not exonerate Trump, although Trump constantly claimed that it did.
In the end, Democrats came across as cruelly disappointed in Mueller's two volumes of scrupulously documented impeachable acts while Attorney General William Barr was as happy as a lark for having injected his false summary of it into the public bloodstream before it was published in full.
House Democrats didn’t take the time to wait for witnesses before sending their bill of impeachment to the Senate because it would have been a colossal waste of time. How fruitless to wait for something the White House defiantly refused to provide, or for a final court ruling that might or might not eventually come, or for a miracle.
In any event, why wait for witnesses you don’t need to prove the gravamen of your case given that Trump admitted to everything? It’s a tic of the president’s to proudly announce that something obviously wrong was actually perfect on the theory that if a perfect person with unlimited power does something, it can’t be wrong. A guilty man would hide his bad acts, right?
One of Trump’s favorite congressmen, Texas Rep. Mac Thornberry, made that very point during the House hearings. Thornberry asked whether extorting the Ukrainian president to help Trump cheat in the upcoming election was “anything… that’s different than [Trump] says in public all the time… or different than the American people have been hearing for three years? I don't hear that.“
That might be a novel defense for a serial killer, but hardly fit for a president.
Democrats need to help the public keep two things in mind at the same time. First, that no more witnesses are needed. This is an open-and-shut case with the partial call transcript and documents revealing that Trump secretly withheld congressionally appropriated funds, the crime Republicans say is necessary for impeachment.
Second, that there’s no reason that Americans—and senators—shouldn’t hear former National Security Adviser John Bolton describing the “drug deal” he saw going down, however much listening to Bolton and others like acting Chief of Staff Mick Mulvaney and Secretary of State Mike Pompeo might hurt the sensitive ears of Devin Nunes, Sean Hannity, and the rest of the whimpering Republican caucus.
A vote for witnesses would give some senators a way to cut the baby in half, to show they’re not complete patsies for Trump but are loyal enough to the party to vote against conviction. This may be particularly appealing to those senators in purplish states up for re-election. Republican Senators live in fear of Majority Leader Mitch McConnell, who announced before the trial began that he planned to do everything the president wanted, including not having witnesses because it would be a “fishing expedition.” His party’s 53-47 advantage means he’s only as powerful as any four of his fellow Republicans let him be. There are five—Lisa Murkowski, Susan Collins, Cory Gardner, Joni Ernst, and Martha McSally—atop the list of the most unpopular and endangered home-state senators who could peel off. McConnell also has to worry about a few others like sometimes statesman Mitt Romney, retiring senators like Lamar Alexander, and institutionalists like Rob Portman. If McConnell loses any four of them, he loses his ironclad grip on the length and depth of the trial.
It’s hard to sit still for hours of argument but it’s uplifting to watch the House managers rise to the occasion, so much so that— as reported on MSNBC—Graham encountered Schiff at the elevator, shook his hand, and congratulated him on a job well done. If Democrats succeed in turning the Republican sleight of hand back on them—and they tried in every presentation on Wednesday—they will either get their witnesses, or they will get voters to see what’s wrong with the spineless Republicans who refused to call them.
So as not to push the potential defectors too far at the outset, McConnell abandoned two of his most unfair rules. Still, Collins cast a show vote for one of Schumer’s amendments, likely with McConnell’s approval, to shore up her supporters in Peloton classes in Kennebunkport. Of The Five, she’s the most dramatic about how difficult the burden of being her reasonable self is. Despite her suffering, she almost always ends up where Trump wants her.
The Five will get another opportunity to vote for witnesses next week, after a Sunday off counting up the calls from constituents who’ve been in a courtroom or just watched Law & Order and have some idea of what a trial entails.
Voting in favor of a real trial on the biggest stage of their careers may give The Five—it would only take four of them—the chance to be the independent lawmakers they once were.
