On the morning of February 13, 2021, just before the Senate impeachment trial abruptly ended with Trump’s acquittal, Constitutional law specialist Bruce Fein and I sent the following plea to House Speaker Nancy Pelosi:
More than 240 years of heroic sacrifices by our forebearers to plant the seeds of a government of the people, by the people, for the people are not being furthered by your shortsighted eagerness for an abbreviated gravely historic second impeachment trial of former President Donald Trump. The trial has thus been shorn of “smoking gun” witnesses and full exposure of his daily wrecking ball against the Constitution rooted in Mr. Trump’s unprecedented, brazenly monarchical pronouncement on July 23, 2019, “Then I have Article 2, where I have the right to do anything I want as president.” Mr. Trump was as determined as his words.
He usurped the congressional power to tax and spend.
He defied hundreds of congressional subpoenas and demands for testimony or information to disable oversight and to substitute government secrecy for transparency.
He turned the White House into a crime scene with serial violations of the Hatch Act.
According to former national security advisor John Bolton, fortified by the Mueller Report, he made obstruction of justice “a way of life” at the White House.
He appointed principal officers of the United States without Senate confirmation in violation of the Appointments Clause.
He transgressed both the letter and spirit of the Foreign and Domestic Emoluments Clauses.
He flouted his obligation to take care that the laws be faithfully executed by dismantling enforcement of environmental, safety, consumer protection, and labor laws.
January 6, 2021 was but the predictable culmination of Mr. Trump’s unalloyed contempt for the Constitution and rule of law. If Article 2 crowns the president with limitless power, then to incite the use of force and violence against the legislative branch of government to prevent the Vice President from counting state-certified electoral votes, falls squarely within his vast dictatorial domain.
We submit you will be committing a dereliction of constitutional duty if you do not immediately make the demand to subpoena witnesses in the pending second impeachment trial.
The subpoenas should be issued to at least the following: Donald Trump, Mike Pence, William Barr, John Bolton, Christopher Krebs, Brad Raffensperger, Jeffrey Rosen, Rudy Giuliani, Jeffrey Clark, and Pak Byung-Jin (B.J. Pak).
Your immediate call for witnesses critical to fortifying the impeachment evidence will be the definitive test of your resolve to convict Donald J. Trump and your understanding of the serious and gravity of the impeachment charges. A trial without key witnesses possessed of crucial incriminating testimony diminishes the seriousness of the proceedings and the huge stakes for the future of the American Republic.
The haunting question that history will raise will be this: Why didn’t Speaker Pelosi call the witnesses?
The Senate resumed its trial on Saturday, February 13th at 10:00 am. Soon, came the revelation of an exchange between Representative Jaime Herrera Beutler’s (R-WA) on January 6th with House Republican Minority Leader Kevin McCarthy (CA), regarding his telephone conversation with Donald Trump during the storming of Congress. What followed was a call for witnesses by a Senate vote of 55-45. Eureka! The window for Republican witnesses previously rejected by Democratic House Managers was reopened. There was another chance to overcome Speaker Pelosi’s desire for a quick trial without witnesses.
Then came another reversal pressed by President Joe Biden and Senate Majority Leader Chuck Schumer (D-NY). Democratic leaders told the House managers to huddle privately with Trump’s defense lawyers to strike a deal. They did. They would place a mere statement from Rep. Beutler into the trial record and call no witnesses. The Republicans couldn’t have been more delighted, knowing that the Democratic leadership wanted the trial over that day before Congress went on a week-long vacation.
Before the deal, Senator Ben Cardin (D-MD) predicted on NPR that there would be a call for witnesses, requiring a deferral of the trial for two weeks. How mistaken he was about his Party’s defeatism and rejection of going forward with a full hand.
They could have added to their single impeachment Article of inciting an insurrection, two more Articles – intimidating Mike Pence and others plus Trump’s refusal to call back the attackers during their riot. Those three Articles would have made for a more powerful case against Trump’s defense attorneys, in the opinion of former federal judge Michael McConnell.
An even stronger impeachment and one deterring future wannabe Trumps was to pair Trump’s physical attack on the Capitol with Trump’s four-year institutional attack on the Congress with his constant usurpation of the legislative branch’s constitutional authority (some noted above).
For reasons yet to be divulged, the Democrats, as they did with the first impeachment of Trump, were unwilling to use the full evidence subpoena powers they possess. Trump can now run again, vitiating the rule of law and debasing our democratic institutions.
As Republican strategist Kevin Philips noted years ago, The Republicans go for the jugular while the Democrats go for the capillaries.
This post was originally published on Radio Free.