Democrats’ impeachment case collapses under weight of time

The Hill | BY JONATHAN TURLEY

As the House and Senate continue their bitter struggle over the coming impeachment trial of President Trump, a judge in the District of Columbia issued an opinion that was largely lost in the crush of New Years stories. The opinion could loom large in the Senate trial, however, and one line in particular, which states “the House clearly has no intention of pursuing” the witness, may be repeated like a mantra by the Trump defense team.

The witness was Charles Kupperman, a deputy to former national security adviser John Bolton. Other than Bolton himself, Kupperman is one of the officials most likely to have direct knowledge of an alleged quid pro quo on aid to Ukraine. After subpoenaing him last fall, the House withdrew its request before the court could rule on compelling his testimony for the record. The House also decided not to subpoena Bolton or any other key witnesses in the administration. Judge Richard Leon dismissed the case before New Years Eve with a hint of frustration, if not bewilderment, that the House did not seem interested in hearing from a possible eyewitness. Historically, that lack of attention in not only witnesses but also a triable case will remain one of the most baffling blunders of this impeachment.

When I testified in the House Judiciary Committee impeachment hearing, I cited this case in my criticism of the pledge by Democrats to impeach Trump by Christmas despite a very incomplete record. While I opposed some of the proposed articles of impeachment that were subsequently dropped by the panel, I said Trump could be legitimately impeached on abuse of power and obstruction of justice if the House could establish such violations. But the House refused to wait just a couple months to build a much stronger case to remove Trump. In the mad rush to push impeachment, Democrats could not have made it easier for his team.

Securing an impeachment so fast does not earn you a historic prize. It simply earns you a historic failure. By not seeking to compel numerous key witnesses, the House now relies on the Senate to complete its case. Since the House has maintained that the record overwhelmingly proves that Trump is guilty, the Senate could simply try the case on the record supplied by the House. Indeed, in the 1999 impeachment of President Clinton, Senate Democrats, including Minority Leader Charles Schumer, fought against any witnesses and sought a summary vote without a trial.

I was particularly concerned about moving forward by Christmas on the second article of alleged obstruction of Congress. The House elected to push through impeachment with an abbreviated period of roughly three months and declared any delay by Trump, even to seek judicial reviews, to be a high crime and misdemeanor. The administration is currently in court challenging demands for witnesses and documents. Just a couple weeks ago, the Supreme Court accepted one such case for review then stayed the lower court decisions ordering the production of the tax and finance records of Trump. The House impeached Trump before that court or other federal courts could rule on the merits of claims of presidential privileges and immunities. Both Bill Clinton and Richard Nixon had been able to take such challenges to the Supreme Court before they faced impeachment.

The House refused to seek to compel several witnesses in court, burning months in which it could have secured not just decisions in its favor but also testimony. Indeed, a year ago, I testified before the House Judiciary Committee and encouraged it not only to hold a vote on impeachment but to go to court to force testimony of figures like former White House counsel Donald McGahn. While refusing to use its impeachment powers with such a vote, it did take him to court. It won that case shortly before its impeachment vote. The case will be heard by the appellate court this week, even without being expedited for the impeachment investigation.

When faced with the embarrassing timing of that ruling after the hurried impeachment vote, House Intelligence Committee Chairman Adam Schiff insisted there was no time to waste in getting the case to the Senate and that “it has taken us eight months to get a lower court ruling” to compel McGahn to testify. But after members claimed there was a “crime spree in progress” and no time to waste, House Speaker Nancy Pelosi blocked any submission to the Senate to demand witnesses that the House unwisely omitted in its investigation. So it seems time is no longer of the essence.

Schiff also was wrong on McGahn.